Manuel Reyes v. Court of Appeals and Julio Vivares
CA, 139 SCRA 206 (1985)
G.R. No. 12099; October 30, 1997
Facts:
On January 3, 1992, Torcuato Reyes executed his last will and testament. He
bequeathed all his prop to his wife Asuncion (Oning) and his brother Jose. The will
consisted of two pages and was signed by Torcuato Reyes in the presence of three
witnesses: Antonio Veloso, Gloria Borromeo, and Soledad Gaputan. Private
respondent Julio A. Vivares was designated the executor and in his default or
incapacity, his son Roch Alan S. Vivares. PR filed a petition for probate of the will. The
recognized natural children of Torcuato with Estebana Galolo and Celsa Agape filed
an opposition. The court declared that the will was exec according w/ the forma
prescribed by law. However, it ruled that Asuncion was never married to the
deceased (Hence, dispo made in will is invalid). Julio Vivares filed an appeal before
the CA with the allegation that the oppositor failed to present ay comp. evidence
that Asuncion was legally married to another person. The CA affirmed the trial court's
decision but with the modification that dispo in favor of Oning was valid.
Ruling:
As a general rule, courts in probate proceedings are limited to pass only upon the
extrinsic validity of the will sought to be probated. Thus, the court merely inquires on
its due execution, whether or not it complies with the formalities prescribed by law,
and the testamentary capacity of the testator. It does not determine nor even by
implication prejudge the validity or efficacy of the will's provisions. The intrinsic validity
is not considered since the consideration thereof usually comes only after the will has
been proved and allowed. There are, however, notable circumstances wherein the
intrinsic validity was first determined as when the defect of the will is apparent on its
face and the probate of the will may become a useless ceremony if it is intrinsically
invalid. The intrinsic validity of a will may be passed upon because "practical
considerations" demanded it as when there is preterition of heirs or the testamentary
provisions are of doubtful legality. Parenthetically, the rule on probate 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. The lower court was not asked to rule upon the intrinsic validity or efficacy of the
provisions of the will. As a result, the declaration of the testator that Asuncion "Oning"
Reyes was his wife did not have to be scrutinized during the probate proceedings.
The propriety of the institution of Oning Reyes as one of the devisees/legatees already
involved inquiry on the will's intrinsic validity and which need not be inquired upon by
the probate court.
NEPOMUCENO V.
DOCTRINE: While the general rule is that the probate court's area of inquiry is limited
to the extrinsic validity of the will, practical considerations may compel the probate
court to pass upon matters of intrinsic validity. In particular, where a testamentary
provision is void on its face, a probate court, in accordance with the ruling in Nuguid
v Nuguid, pass upon such provision for the purpose of declaring its nullity
FACTS:
In the last will and testament of Martin Jugo, he named and appointed the petitioner
Sofia 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.
1. The petitioner filed a petition for the probate of the Will, but the legal wife
and children filed an opposition.
2. The lower court denied the probate of the will because the testator admitted
to cohabiting with Nepomuceno. The wills admission to probate was deemed an
idle exercise since based on the face of the will, the invalidity of the intrinsic provisions
is evident.
3. The appellate court, however, declared the will to be valid except that the
devise in favor of the petitioner is null and void. Petitioner filed a motion for
reconsideration, but such was denied.
ISSUES:
1. WON the respondent court acted in excess of its jurisdiction when after
declaring the last will and testament of the testator validly drawn, it went on to pass
upon the intrinsic validity of the testamentary provision in favor of herein petitioner.
2. Is the disposition in favor of the petitioner valid?
HELD:
FIRST ISSUE: The court acted within its jurisdiction
The general rule is that in probate proceedings, the courts area of inquiry is limited
to an examination and resolution of the extrinsic validity of the will. The rule, however,
is not inflexible and absolute. Given the 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.
The trial court acted correctly in passing upon the wills intrinsic validity even before
its formal validity has 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.
SECOND ISSUE: Validity of the disposition to the petitioner:
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.
The records of the case do not sustain a finding of innocence or good faith on the
part of Nepomuceno:
a. The last will and testament itself expressly admits its indubitably on its face the
meretricious relationship between the testator and petitioner, the devisee
b. 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 testator at the start of the
proceedings.
Whether or not petitioner knew that the testator, Jugo, the man she had lived with as
a husband, was already married was important. When the court ruled that Jugo and
the petitioner were guilty of adultery and concubinage, it was a finding that the
petitioner was not the innocent woman she pretended to be.
The prohibition in Art. 739 is against the making 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.
DISPOSITION: WHEREFORE, the petition is DISMISSED for lack of merit. The decision of
the Court of Appeals, now Intermediate Appellate Court, is AFFIRMED. No costs.
JOHNNY S. RABADILLA vs. COURT OF APPEALS, et.al.
FACTS:
Dr. Jorge Rabadilla, in a codicil (a supplement to a will; an appendix) of Aleja Belleza,
was instituted devisee of Lot No. 1392 with an area of 511,855 square meters with the
obligation to deliver 100 piculs of sugar to herein private respondent every year during
the latter's lifetime.
The codicil provides that the obligation is imposed not only on the instituted heir but
also to his successors-in-interest and that in case of failure to deliver, private
respondent shall seize the property and turn it over to the testatrix's "near
descendants."
Dr. Rabadilla died and was survived by his wife and children, one of whom is herein
petitioner.
Private respondent, alleging failure of the heirs to comply with their obligation, filed a
complaint with the RTC praying for the reconveyance of the subject property to the
surviving heirs of the testatrix.
During the pre-trial, a compromise agreement was concluded between the parties
wherein the lessee of the property assumed the delivery of 100 piculs of sugar to
private respondent; however, only partial delivery was made.
The trial court dismissed the complaint for lack of cause of action stating that, While
there may be the non-performance of the command as mandated, exaction from
them (the petitioners), simply because they are the children of Jorge Rabadilla, the
title holder/owner of the lot in question, does not warrant the filing of the present
complaint.
The CA, reversed the decision and held that the institution of Dr. Rabadilla is in the
nature of a modal institution and a cause of action in favor of private respondent
arose when petitioner failed to comply with their obligation under the codicil, and in
ordering the reversion of Lot 1392 to the estate of testatrix. Thus, the present petition.
ISSUE:
Whether or not private respondent has a legally demandable right against the
petitioner, as one of the compulsory heirs of Dr. Rabadilla.
HELD:
YES. It is a general rule under the law on succession that successional rights are
transmitted from the moment of death of the decedent and compulsory heirs are
called to succeed by operation of law. The legitimate children and descendants, in
relation to their legitimate parents, and the widow or widower, are compulsory heirs.
Thus, the petitioner, his mother and sisters, as compulsory heirs of the instituted heir,
Dr. Jorge Rabadilla, succeeded the latter by operation of law, without need of further
proceedings, and the successional rights were transmitted to them from the moment
of death of the decedent, Dr. Jorge Rabadilla.
Under Article 776 of the New Civil Code, inheritance includes all the property, rights
and obligations of a person, not extinguished by his death. Conformably, whatever
rights Dr. Jorge Rabadilla had by virtue of subject Codicil were transmitted to his
forced heirs, at the time of his death. And since obligations not extinguished by death
also form part of the estate of the decedent; corollarily, the obligations imposed by
the Codicil on the deceased Dr. Jorge Rabadilla, were likewise transmitted to his
compulsory heirs upon his death.
In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge Rabadilla,
subject to the condition that the usufruct thereof would be delivered to the herein
private respondent every year. Upon the death of Dr. Jorge Rabadilla, his compulsory
heirs succeeded to his rights and title over said property, and they also assumed his
(decedent's) obligation to deliver the fruits of the lot involved to herein private
respondent. Such obligation of the instituted heir reciprocally corresponds to the right
of private respondent over the usufruct, the fulfillment or performance of which is now
being demanded by the latter through the institution of the case at bar. Therefore,
private respondent has a cause of action against petitioner and the trial court erred
in dismissing the complaint below.
LEONOR VILLAFLOR VDA. DE VILLANUEVA, plaintiff-appellant, vs.
DELFIN N. JUICO, in his capacity as Judicial Administrator of the testate estate of
FAUSTA NEPOMUCENO, defendant-appellee.
G.R. No. L-15737 February 28, 1962.REYES, J.B.L., J.:
FACTS: On October 9, 1908, Don Nicolas Villaflor, a wealthy man of Castillejos,
Zambales, executed a will in Spanish in his own handwriting, devising and
bequeathing in favor of his wife, Dona Fausta Nepomuceno, one-half of all his real
and personal properties, giving the other half to his brother Don Fausto Villaflor.
Clause 6th, contained the institution of heirs. The 12th clause of the will provided,
however, that Clauses 6th and 7th thereof would be deemed annulled from the
moment he bore any child with Doa Fausta Nepomuceno. Don Nicolas Villaflor died
on March 3, 1922, without begetting any child with his wife Doa Fausta
Nepomuceno. The latter, already a widow, thereupon instituted Special Proceeding
No. 203 of the Court of First Instance of Zambales, for the settlement of her husband's
estate and in that proceeding, she was appointed judicial administratrix. On May 1,
1956, Doa Fausta Nepomuceno died without having contracted a second
marriage, and without having begotten any child with the deceased Nicolas Villaflor.
Her estate is now being settled in Special Proceeding No. Q-1563 in the lower court,
with the defendant Delfin N. Juico as the duly appointed and qualified judicial
administrator.
The plaintiff Leonor Villaflor Vda. de Villanueva is admitted being the same Leonor
Villaflor mentioned by Don Nicolas Villaflor in his will as his "sobrina nieta Leonor
Villaflor".
Plaintiff Leonor Villaflor instituted the present action against the administrator of the
estate of the widow Fausta Nepomuceno, on February 8, 1958, contending that upon
the widow's death, said plaintiff became vested with the ownership of the real and
personal properties bequeathed by the late Nicolas Villaflor to clause 7 of his will,
pursuant to its eight (8th) clause. Defendant's position, adopted by the trial court, is
that the title to the properties aforesaid became absolutely vested in the widow upon
her death, on account of the fact that she never remarried.
ISSUE: How should the will of the Testator be interpreted.
RULING:
The intention and wishes of the testator, when clearly expressed in his will, constitute
the fixed law of interpretation, and all questions raised at the trial, relative to its
execution and fulfillment, must be settled in accordance therewith, following the
plain and literal meaning of the testator's words, unless it clearly appears that his
intention was otherwise. ART. 790. The words of a will are to be taken in their ordinary
and grammatical sense, unless a clear intention to use them in another sense can be
gathered, and that other can be ascertained." .
Technical words in a will are to be taken in their technical sense, unless the context
clearly indicates a contrary intention, or unless it satisfactorily appears that the will
was drawn solely by the testator, and that he was unacquainted with such technical
sense. In this case the testament of Don Nicolas Villaflor clearly and unmistakably
provided that his widow should have the possession and use of the legacies while
alive and did not remarry. It necessarily follows that by the express provisions of the
8th clause of his will, the legacies should pass to the testator's "sobrinanieta", appellant
herein, upon the widow's death, even if the widow never remarried in her lifetime.
Consequently, the widow had no right to retain or dispose of the aforesaid properties,
and her estate is accountable to the reversionary legatee for their return, unless they
had been lost due to fortuitous event, or for their value should rights of innocent third
parties have intervened.
PREMISES CONSIDERED, the decision appealed from is reversed, and the appellant
Leonor Villaflor Vda. de VILLANUEVA is declared entitled to the ownership and fruits
of the properties described in clause 7 of the will or testament, from the date of the
death of Doa Fausta Nepomuceno. The records are ordered remanded to the court
of origin for liquidation, accounting and further proceedings conformably to this
decision. Costs against the Administrator-appellee.
In re: Will and Testament of the deceased REVEREND SANCHO ABADIA.
SEVERINA A. VDA. DE ENRIQUEZ, ET AL. vs. MIGUEL ABADIA, ET AL.
G.R. No. L-7188
August 9, 1954
Facts: Andres Enriquez, as one of the legatees in a document purporting to be the
last will and testament of Father Sancho Abadia, which was executed on September
6, 1923, filed a petition for its probate. Some cousins and nephews of the deceased,
who would inherit his estate if he left no will, filed opposition. The trial court ruled in
favor of Enriquez, stating that even if the said document is a holographic will, one
which is not permitted by law at the time it was executed and at the time of the
testators death, such form of a will is already allowed at the time of the hearing of
the case since the new Civil Code is already enforced, and that to carry out the
intention of the testator which according to the trial court is the controlling factor and
may override any defect in form. Hence, this petition.
Issue: Whether the reckoning period in deciding the validity of the holographic will of
Rev. Sanchio, the time of the hearing of the case shall be considered and not the
time of its execution
Held: No. The validity of a will is to be judged not by the law enforce at the time of
the testator's death or at the time the supposed will is presented in court for probate
or when the petition is decided by the court but at the time the instrument was
execute, as supported by Art. 795 of the new Civil Code. One reason in support of
the rule is that although the will operates upon and after the death of the testator,
the wishes of the testator about the disposition of his estate among his heirs and
among the legatees is given solemn expression at the time the will is executed, and
in reality, the legacy or bequest then becomes a completed act.
When one executes a will which is invalid for failure to observe and follow the legal
requirements at the time of its execution then upon his death he should be regarded
and declared as having died intestate, and his heirs will then inherit by intestate
succession, and no subsequent law with more liberal requirements or which dispenses
with such requirements as to execution should be allowed to validate a defective will
and thereby divest the heirs of their vested rights in the estate by intestate succession.
The general rule is that the Legislature cannot validate void wills. Hence, the trial
courts decision was reversed.
IBARLE v. PO
GR No.L-5064, February 27, 1953
92 PHIL 721
FACTS: Leonardo Winstanley died leaving a parcel of land to his surviving spouse
Catalina Navarro and some minor children. Catalina sold the entire parcel of land to
Maria Canoy who later sold the same land to the plaintiff Bienvenido Ibarle. After
some time, after her appointment as guardian of her minor children, Catalina again
sold 1/2 of the land in question, which portion now belonged to the children as heirs,
to herein defendant Esperanza Po.
ISSUE: Which sale was valid, and who has the rightful claim to the property?
HELD: The sale to defendant is valid. Article 657 of the old Civil Code provides: "The
rights to the succession of a person are transmitted from the moment of his death." in
a slightly different language, this article is incorporated in the new Civil Code as article
777.
The above provision and comment make it clear that when Catalina Navarro Vda.
de Winstanley sold the entire parcel to the Canoy spouses, one-half of it already
belonged to the seller's children. No formal or judicial declaration being needed to
confirm the children's title, it follows that the first sale was null and void in so far as it
included the children's share.
On the other hand, the sale to the defendant having been made by authority of
the competent court was undeniably legal and effective. The fact that it has not
been recorded is of no consequence. If registration were necessary, still the non-
registration would not avail the plaintiff because it was due to no other cause than
his own opposition.
QUIRICO L. SATURNINO, petitioner, vs. FELIZA Luz PAULINO, MAXIMO DALEJA, JUANA
LUCAS, NEMESIO LUCAS, DoNATA GUILLERMO, and COURT OF APPEALS, respondents.
FACTS:
Upon the death of Jaime Luz Paulino, on February 10, 1937, he was survived by his
childrenTimoteo Esteban, Macario and Feliza, all surnamed Luz Paulinoand a
grandson-Quirico L. Saturnino, son of his deceased daughter Antonia Luz Paulino.
Among the properties left by Jaime Luz Paulino is a house and lot, situated in Barrio
No. 13, municipality of Laoag, province of Ilocos Norte, and more particularly known
as Lot No. 11366 of the Laoag Cadastre. On October 22, 1945, his daughter Feliza Luz
Paulino executed a deed of absolute sale of said property in favor of the spouses
Maximo Daleja and Juana Lucas and Nemesio Lucas and Donata Guillermo, for the
aggregate sum of P1,200.00.
As said sale was made without his knowledge or consent, Quirico L. Saturnino offered
verbally and in writing to the vendees to return then and there to them, in actual
cash, 4/5 of the purchase price of said property, but defendants, for themselves and
in representation of their respective husbands who were absent, refused acceptance
thereof.
For this reason, Quirico L. Saturnino instituted this action against the defendants for
delivery to the defendant vendees by way of reimbursement, together with the
amount of P50 Philippine currency, to cover the expenses incurred in the preparation
of the deed of sale, and stating that he was ready and willing to deposit other
additional sums that the court may deem just and necessary. On these averments
plaintiff prayed in the complaint that judgment be rendered in his favor and, among
others, declare the sale made by defendant Feliza Luz Paulino to her her co-
defendants illegal with respect to one-fifth of the lot and to declare said one-fifth
undivided share of the plaintiff.
On November 14, 1945, defendants answered the complaint with counterclaim,
wherein it is alleged, among other things, that all their inheritance from the deceased
Jaime Luz Paulino had been divided in accordance with Section 596 of the Code of
Civil Procedure and the last verbal wish of the decedent before his death, giving the
residential lot in question together with the house of strong materials constructed
thereon to Feliza Luz Paulino as her exclusive and only share, and leaving her brothers,
Timoteo, Esteban and Macario, and their nephew Quirico Saturnino to divide all the
agricultural lands among themselves, which division was duly effected.
Meanwhile, or on November 19, 1945, Quirino L. Saturnino had filed a petition for the
probate of the will and testament of Jaime Luz Paulino.
On or about March 10, 1950, respondents herein filed a supplemental answer alleging
that plaintiffpetitioner hereinhas no legal capacity to sue, because the property
in litigation therein is part of the estate which is the subject matter of the probate
proceedings, in which an administrator was appointed but no adjudication had, as
yet, been made.
The CFI rendered decision in favor of the petitioner declaring- the sale made by the
defendant Feliza Luz Paulino to her co-defendants null and void with respect to one-
fifth (1/5) of the lot in question and the plaintiff is declared owner thereof as his
undivided share.
On appeal from this decision, the defendants contended that the lower court had
erred in declaring the sale of the lot in question invalid with respect to one-fifth share
of the appellee, among others.
According to the Court of Appeals, although the will of the testator has been allowed,
no settlement of accounts has been effected, no partition of the properties left by
the decedent has been made, and the heirs have not legally received or been
adjudicated or assigned any particular piece of the mass of their inheritance. This
being the case, and pending such partition, adjudication or assignment to the heirs
of the residue of the estate of the testator Jaime Luz Paulino, none of his heirs can
properly allege or claim to have inherited any portion of said residue, if there be any,
because his or her right of inheritance remains to be in the nature of hope.
Consequently, neither Feliza Luz Paulino, nor any of her coheirs, can legally represent
the estate of the decedent, or dispose as his or hers of the property involved in this
case.
Hence, this instant petition for review.
Issue: WON the right of inheritance of herein petitioner is in the nature of mere hope.
Held:
No. Pending "partition, adjudication or assignment to the heirs" of a deceased
estator, their "right of inheritance" is not merely" in the nature of hope," forpursuant
to Article 657 of the Civil Code of Spain, which was in force in the Philippines at the
time of the death of Jaime Luz Paulino"the rights to the succession of a person are
transmitted from the moment of his death" and the heirspursuant to Article 661 of
the same Code"succeed to the deceased in all his rights and obligations by the
mere fact of his death." In other words, the person concerned is an heir and he may
exercise his rights as such, from the very moment of the death of the decedent. One
of those rights is that of redemption under Article 1067 of the aforesaid code (Article
1088 of the Civil Code of the Philippines).
IN THE MATTER OF THE TESTATE ESTATE OF EDWARD E. CHRISTENSEN, DECEASED.
ADOLFO C. AZNAR, Executor and LUCY CHRISTENSEN, Heir of the deceased, Executor
and
Heir-appellees, VS. HELEN CHRISTENSEN GARCIA, oppositor-appellant
January 31, 1963
FACTS:
Edward E. Christensen, though born in New York, migrated to California, where he
resided and consequently was considered a California citizen. In 1913, he came to
the Philippines where he became a domiciliary until his death. However, during the
entire period of his residence in this country he had always considered himself a
citizen of California. In his will executed on March 5, 1951, he instituted an
acknowledged natural daughter, Maria Lucy Christensen as his only heir, but left a
legacy of sum of money in favor of Helen Christensen Garcia who was rendered to
have been declared acknowledged natural daughter. Counsel for appellant claims
that California law should be applied; that under California law, the matter is referred
back to the law of the domicile; that therefore Philippine law is ultimately applicable;
that finally, the share of Helen must be increased in view of the success ional rights of
illegitimate children under Philippine law. On the other hand, counsel for the heir of
Christensen contends that inasmuch as it is clear that under Article 16 of our Civil
Code, the national law of the deceased must apply, our courts must immediately
apply the internal law of California on the matter; that under California law there are
no compulsory heirs and consequently a testator could dispose of any property
possessed by him in absolute dominion and that finally, illegitimate children not being
entitled to anything and his will remain undisturbed.
ISSUE:
Whether or not the Philippine law should prevail in administering the estate of
Christensen?
RULING:
The court in deciding to grant more successional rights to Helen said in effect that
there are two rules in California on the matter: the internal law which should apply to
Californians domiciled in California; and the conflict rule which should apply to
Californians domiciled outside of California. The California conflict rule says: If there
is no law to the contrary in the place where personal property is situated, is deemed
to follow the person of its owner and is governed by the law of his domicile.
Christensen being domiciled outside California, the law of his domicile, the
Philippines, ought to be followed. Where it is referred back to California, it will form a
circular pattern referring to both country back and forth.
Testate Estate of Joseph G. Brimo, JUAN MICIANO, administrator, petitioner-appellee,
vs.
ANDRE BRIMO, opponent-appellant.
G.R. No. L-22595 November 1, 1927
ROMUALDEZ, J.:
FACTS: The partition of the estate left by the deceased Joseph G. Brimo is in question
in this case. Joseph G. Brimo is a Turkish citizen who was domiciled in the country.The
judicial administrator of this estate filed a scheme of partition. Andre Brimo, one of
the brothers of the deceased, opposed it. The court, however, approved it. The
partition in question puts into effect the provisions of Joseph G. Brimo's will which are
not in accordance with the laws of his Turkish nationality, for which reason they are
void as being in violation or article 10 of the Civil Code. A perusal of Brimos will
provided that he desired to apply the laws of the Philippines to his will and not the
laws of Turkey. The institution of legatees in this will is conditional, and the condition is
that the instituted legatees must respect the testator's will to distribute his property,
not in accordance with the laws of his nationality, but in accordance with the laws
of the Philippines.
ISSUE: Whether or not the condition to apply the laws of the Philippines to the probate
of the deceaseds will is valid.
RULING: NO. The said condition is void, being contrary to law, for article 792 of the
civil Code provides the following:
Impossible conditions and those contrary to law or good morals shall be considered
as not imposed and shall not prejudice the heir or legatee in any manner whatsoever,
even should the testator otherwise provide.
The condition is contrary to law because it expressly ignores the testator's national law
when, according to article 10 of the civil Code above quoted, such national law of
the testator is the one to govern his testamentary dispositions. Said condition then, in
the light of the legal provisions is considered unwritten, and the institution of legatees
in said will is unconditional and consequently valid and effective even as to the
oppositor. All of the remaining clauses of said will with all their dispositions and requests
are perfectly valid and effective it not appearing that said clauses are contrary to
the testator's national law.
Therefore, the orders appealed from are modified and it is directed that the
distribution of this estate be made in such a manner as to include the herein appellant
Andre Brimo as one of the legatees, and the scheme of partition submitted by the
judicial administrator is approved in all other respects, without any pronouncement
as to costs.
Llorente vs. Court of Appeals, G. R. No. 124371, November 23, 2000
Facts: On February 22, 1937, Lorenzo and petitioner Paula were married before a
parish priest in Nabua, Camarines Sur.
On November 30, 1943, Lorenzo was admitted to United States citizenship and
Certificate of Naturalization No. 5579816 was issued in his favor by the United States
District Court, Southern District of New York.
Upon the liberation of the Philippines by the American Forces in 1945, Lorenzo was
granted an accrued leave by the U. S. Navy, to visit his wife and he visited the
Philippines. He discovered that his wife Paula was pregnant and was living in and
having an adulterous relationship with his brother, Ceferino Llorente.
Lorenzo refused to forgive Paula and live with her. He then returned to the United
States and on November 16, 1951 filed for divorce with the Superior Court of the State
of California in and for the County of San Diego. Paula was represented by counsel,
John Riley, and actively participated in the proceedings. On November 27, 1951, the
Superior Court of the State of California, for the County of San Diego found all factual
allegations to be true and issued an interlocutory judgment of divorce.
On December 4, 1952, the divorce decree became final.
Lorenzo went back to the Philippines and on January 16, 1958 married Alicia F.
Llorente in Manila.
From 1958 to 1985, Lorenzo and Alicia lived together as husband and wife.Their
twenty-five (25) year union produced three children, Raul, Luz and Beverly, all
surnamed Llorente.
On March 13, 1981, Lorenzo executed a Last Will and Testament. The will was
notarized by Notary Public Salvador M. Occiano, duly signed by Lorenzo with
attesting witnesses Francisco Hugo, Francisco Neibres and Tito Trajano. In the will,
Lorenzo bequeathed all his property to Alicia and their three children.
On December 14, 1983, Lorenzo filed with the Regional Trial Court, Iriga, Camarines
Sur, a petition for the probate and allowance of his last will and testament wherein
Lorenzo moved that Alicia be appointed Special Administratrix of his estate.

On January 24, 1984, finding that the will was duly executed, the trial court admitted
the will to probate but before the proceedings could be terminated, Lorenzo died.
Paula filed with the same court a petition for letters of administration over Lorenzos
estate in her favor contending that she was Lorenzos surviving spouse, that such
properties were acquired during their marriage and that Lorenzos will would
encroach her legitime.
Alicia filed in the testate proceeding , a petition for the issuance of letters
testamentary.
On October 14, 1985, without terminating the testate proceedings, the trial court
gave due course to Paulas petition.
The Regional Trial Court found that the divorce decree granted to the late Lorenzo
Llorente is void and inapplicable in the Philippines, therefore the marriage he
contracted with Alicia Fortunato on January 16, 1958 at Manila is likewise void. This
being so the petition of Alicia F. Llorente for the issuance of letters testamentary is
denied. Likewise, she is not entitled to receive any share from the estate even if the
will especially said so her relationship with Lorenzo having gained the status of
paramour which is under Art. 739 (1).
Petitioner, Paula Llorente is appointed legal administrator of the estate of the
deceased, Lorenzo Llorente.
Issue: Who are entitled to inherit from the late Lorenzo N. Llorente?
Held: The trial court held that the will was intrinsically invalid since it contained
dispositions in favor of Alice, who in the trial courts opinion was a mere paramour.
The trial court threw the will out, leaving Alice, and her two children, Raul and Luz,
with nothing.
The Court of Appeals also disregarded the will. It declared Alice entitled to one half
(1/2) of whatever property she and Lorenzo acquired during their cohabitation,
applying Article 144 of the Civil Code of the Philippines.
The hasty application of Philippine law and the complete disregard of the will, already
probated as duly executed in accordance with the formalities of Philippine law, is
fatal, especially in light of the factual and legal circumstances here obtaining.
Lorenzo N. Llorente became an American citizen long before and at the time of: (1)
his divorce from Paula; (2) marriage to Alicia; (3) execution of his will; and (4) death,
is duly established, admitted and undisputed.
Thus, as a rule, issues arising from these incidents are necessarily governed by foreign
law.
Art. 16. Real property as well as personal property is subject to the law of the country
where it is situated.
However, intestate and testamentary succession, 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.
But the hasty disregard of both the RTC and CA of Lorenzos Will by calling to the fore
the RENVOI doctrine, claiming that American law follows domiciliary rule is unjustified.
There is no such thing as American law for the whole nation of the US, for the country
comprises of a group of States, each State having its own applicable law,
enforceable only within that state.
As to the validity of the foreign divorce, jurisprudence reiterates that once it is proven
that an individual is no longer a Filipino, thus an alien, when he obtains a divorce
abroad, its effects shall be recognized in the Philippines.
The Supreme Court held that the divorce obtained by Lorenzo H. Llorente from his first
wife Paula was valid and recognized in this jurisdiction as a matter of comity.
Now, the effects of this divorce (as to the succession to the estate of the decedent)
are matters best left to the determination of the trial court.
Whether the will is intrinsically valid and who shall inherit from Lorenzo are issues best
proved by foreign law which must be pleaded and proved. Whether the will was
executed in accordance with the formalities required is answered by referring to
Philippine law. In fact, the will was duly probated.
The decision of the CA is set aside and that of the RTC is reversed. Court REMANDS
the cases to the court of origin for determination of the intrinsic validity of Lorenzo N.
Llorentes will and determination of the parties successional rights allowing proof of
foreign law with instructions that the trial court shall proceed with all deliberate
dispatch to settle the estate of the deceased within the framework of the Rules of
Court.
[G.R. No. 108581. December 8, 1999]
LOURDES L. DOROTHEO, petitioner, vs. COURT OF APPEALS, NILDA D. QUINTANA, for
Herself and as Attorney-in-Fact of VICENTE DOROTHEO and JOSE DOROTHEO,
respondents.
Facts:
Private respondents were the legitimate children of Alejandro Dorotheo and Aniceta
Reyes.
The latter died in 1969 without her estate being settled.
Alejandro died thereafter. Sometime in 1977, after Alejandros death, petitioner, who
claims to have taken care of Alejandro before he died, filed a special proceeding
for the probate of the latters last will and testament.
In 1981, the court issued an order admitting Alejandros will to probate.
Private respondents did not appeal from said order. In 1983, they filed a Motion To
Declare The Will Intrinsically Void. The trial court granted the motion and issued an
order, declaring Lourdes Legaspi not the wife of the late Alejandro Dorotheo, the
provisions of the last will and testament of Alejandro Dorotheo as intrinsically void,
and declaring the oppositors as the only heirs of the late spouses Alejandro Dorotheo
and Aniceta Reyes, whose respective estates shall be liquidated and distributed
according to the laws on intestacy upon payment of estate and other taxes due to
the government.
Petitioner moved for reconsideration arguing that she is entitled to some
compensation since she took care of Alejandro prior to his death although she
admitted that they were not married to each other, which was denied.
On appeal, the same was dismissed for failure to file appellants brief within the
extended period granted. This dismissal became final and executory on February 3,
1989. An Order was issued by Judge Zain B. Angas setting aside the final and
executory Order on the ground that the order was merely interlocutory, hence not
final in character. The court added that the dispositive portion of the said Order even
directs the distribution of the estate of the deceased spouses. Private respondents
filed a motion for reconsideration which was denied private respondents filed a
petition before the Court of Appeals, which nullified the two assailed Orders
Aggrieved, petitioner instituted a petition for review arguing that the case filed by
private respondents before the Court of Appeals was a petition under Rule 65 on the
ground of grave abuse of discretion or lack of jurisdiction.
Issue: May a last will and testament admitted to probate but declared intrinsically
void in an order that has become final and executory still be given effect?
Held:
It should be noted that probate proceedings deal generally with the extrinsic
validity of the will sought to be probated, particularly on three aspects:
whether the will submitted is indeed, the decedents last will and testament;
compliance with the prescribed formalities for the execution of wills;
the testamentary capacity of the testator;
and the due execution of the last will and testament.
Under the Civil Code, due execution includes a determination of whether
the testator was of sound and disposing mind at the time of its execution, that he had
freely executed the will and was not acting under duress, fraud, menace or undue
influence and that the will is genuine and not a forgery, that he was of the proper
testamentary age and that he is a person not expressly prohibited by law from making
a will.
The intrinsic validity is another matter and questions regarding the same may
still be raised even after the will has been authenticated. Thus, it does not necessarily
follow that an extrinsically valid last will and testament is always intrinsically valid. Even
if the will was validly executed, if the testator provides for dispositions that deprives or
impairs the lawful heirs of their legitime or rightful inheritance according to the laws
on succession, the unlawful provisions/dispositions thereof cannot be given effect.
This is specially so when the courts had already determined in a final and executory
decision that the will is intrinsically void. Such determination having attained that
character of finality is binding on this Court which will no longer be disturbed. Not
that this Court finds the will to be intrinsically valid, but that a final and executory
decision of which the party had the opportunity to challenge before the higher
tribunals must stand and should no longer be reevaluated. Failure to avail of the
remedies provided by law constitutes waiver. And if the party does not avail of other
remedies despite its belief that it was aggrieved by a decision or court action, then it
is deemed to have fully agreed and is satisfied with the decision or order. As early as
1918, it has been declared that public policy and sound practice demand that, at
the risk of occasional errors, judgments of courts must at some point of time fixed by
law become final otherwise there will be no end to litigation. Interes rei publicae ut
finis sit litium - the very object of which the courts were constituted was to put an end
to controversies. To fulfill this purpose and to do so speedily, certain time limits, more
or less arbitrary, have to be set up to spur on the slothful.The only instance where a
party interested in a probate proceeding may have a final liquidation set aside is
when he is left out by reason of circumstances beyond his control or through mistake
or inadvertence not imputable to negligence, which circumstances do not concur
herein.
It can be clearly inferred from Article 960 of the Civil Code, on the law of
successional rights that testacy is preferred to intestacy. But before there could be
testate distribution, the will must pass the scrutinizing test and safeguards provided by
law considering that the deceased testator is no longer available to prove the
voluntariness of his actions, aside from the fact that the transfer of the estate is usually
onerous in nature and that no one is presumed to give - Nemo praesumitur donare.
No intestate distribution of the estate can be done until and unless the will had failed
to pass both its extrinsic and intrinsic validity. If the will is extrinsically void, the rules of
intestacy apply regardless of the intrinsic validity thereof. If it is extrinsically valid, the
next test is to determine its intrinsic validity that is whether the provisions of the will
are valid according to the laws of succession. In this case, the court had ruled that
the will of Alejandro was extrinsically valid but the intrinsic provisions thereof were void.
Thus, the rules of intestacy apply as correctly held by the trial court.
 Furthermore, Alejandros disposition in his will of the alleged share in the
conjugal properties of his late spouse, whom he described as his only beloved wife,
is not a valid reason to reverse a final and executory order. Testamentary dispositions
of properties not belonging exclusively to the testator or properties which are part of
the conjugal regime cannot be given effect. Matters with respect to who owns the
properties that were disposed of by Alejandro in the void will may still be properly
ventilated and determined in the intestate proceedings for the settlement of his and
that of his late spouses estate.
Petitioners motion for appointment as administratrix is rendered moot
considering that she was not married to the late Alejandro and, therefore, is not an
heir.
Testate Estate of Amos G. Bellis vs. Edward A. Bellis, et al.,
G.R. No. L-23678 06 June 1967
BENGZON, J.P., J.:
As indication of legislative intent, Congress added a new provision, under Art. 1039,
which decrees that capacity to succeed is to be governed by the national law of
the decedent.
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.
The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of
Texas, U.S.A., and that under the laws 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.

FACTS:

Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the United
States". He had two marriages, with 5 legitimate children from his first wife Mary E.
Mallen. 3 legitimate children from his second wife Violet Kennedy and finally, 3
illegitimate children.

On August 5, 1952, Amos G. Bellis executed a will in the Philippines, which in substance
provided that after all taxes, obligations, and expenses of administration are paid for,
his distributable estate should be divided, in trust, in the following order and manner:
(a) $240,000.00 to his first wife, Mary E. Mallen;
(b) P120,000.00 to his three illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis,
Miriam Palma Bellis, or P40,000.00 each and
(c) after the foregoing two items have been satisfied, the remainder shall go to his
seven surviving children by his first and second wives, namely: Edward A. Bellis, Henry
A. Bellis, Alexander Bellis and Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis, and
Dorothy E. Bellis, in equal shares.

On July 8, 1958, Amos G. Bellis died a resident of San Antonio, Texas, U.S.A. His will was
admitted to probate in the Court of First Instance of Manila on September 15, 1958.
In 1964, two of the illegitimate children, Maria Cristina and Miriam filed their respective
opposition to the project of partition on the ground that they were deprived of their
legitimes as illegitimate children, and therefore, compulsory heirs of the deceased.

ISSUE: Whether or not the national law of the decedent must prevail.

RULING: Art. 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national
law of the decedent, in intestate testamentary, successions, with regard to four items
xxx (E) intrinsic validity of the provisions of the will.
EN BANC
[G.R. No. 1027. May 19, 1903. ]
RAMON DEL ROSARIO, Plaintiff-Appellee, v. CLEMENTE DEL ROSARIO, Defendant-Appellant.
Lucas Gonzalez for Appellant.
Rodriguez & Foz for Appellee.
SYLLABUS
1. WILLS; CONSTRUCTION. In the interpretation and construction of testamentary provisions
the intention of the testator controls.
2. ID.; ID.; DESCRIPTION OF LEGATEES. Where legatees are pointed out by name in the will the
fact that they are referred to as the natural sons of a third person does not make the legacy
conditional upon proof of such relationship but is descriptive merely.
3. ID.; ID.; ACCRETION. A legacy of a certain sum to two nephews in equal shares is payable
in its entirety to the survivor of them in case one dies before the testator.
4. ID.; ID.; LEGACIES. The reservation of property in a will to the children of the legatee thereof
in case of the latters death must be regarded as a legacy if made so by express words;
otherwise the children of the legatee take by inheritance.
5. ID.; ID.; PAYMENT OF LEGACIES. Where the will authorizes the executor to pay legacies,
expressly or by natural inference, action will lie by the legatee against the executor to compel
allowance and payment thereof.
6. ID.; ID.; ID. In an action to compel payment of legacies the defense that an inventory is
being formed or that creditors have not been paid must be set up in the answer in order to be
availed of.
7. ID.; ID.; PARTITION OF ESTATE. An executor who is also an heir is not qualified to make
partition of the estate, and a legatee who seeks the payment of a legacy involving a partition
must sue all persons interested in the estate.
8. ID.; ID. Where the executor of an estate dies pending the determination of an appeal from
a judgment rendered against him and in favor of a legatee, and the latter succeeding as
executor dismisses the appeal, an order may be granted permitting any interested party to
prosecute the appeal.
9. CIVIL PROCEDURE; ASSIGNMENT OF ERROR ON APPEAL. Where the appellant places his
assignment of errors in the bill of exceptions instead of in his brief, and no objection is made at
the opportune time, the judgment will not be affirmed upon the ground of this nonprejudicial
error.
DECISION
WILLARD, J. :
I. Don Nicolas del Rosario died in this city on July 14, 1897, leaving a last will, the eighth, ninth,
eleventh, and eighteenth clauses of which are as follows:
"Eighth. The testator declares that the 5,000 pesos which he brought to his marriage he hereby
bequeathes to his nephews Enrique Gloria y Rosario and Ramon del Rosario, natural children of
his brother Clemente del Rosario, notwithstanding the fact that they purport to be the issue of
the marriage of Escolastico Gloria and Rosendo del Rosario, successively.
"Ninth. The testator declares that the said sum of 5,000 pesos is to be divided, 3,000 pesos for the
first named and 2,000 pesos for the second named, the delivery of the said sums to be effected
by the wife of the testator, provided that these young men behave themselves as they have
done up to the present time, and do not cease to study until taking the degree of bachelor of
arts, and then take a business course, if their health will permit, their support to be paid out of
the testamentary estate and they to live in the house of the widow.
"Eleventh. The testator declares that in case the said young men should be still engaged in study
at the time of the death of the testators wife, they shall continue to be supported at the
expense of the testamentary estate, without deducting such expenses from their legacies, if
they should desire to continue the same studies.
"Eighteenth. The testator further states that although his wife is at the present time fifty-five years
of age, and consequently is not likely to marry again, as she herself says, nevertheless it is possible
that the opposite of what she asserts might occur, and, if so, then it is to be regarded as sufficient
reason to authorize the young men Ramon and Enrique, so often referred to, to separate from
their aunt, in which event they are to be supported by the testamentary estate on a small
allowance of twenty-five pesos per month, provided that they continue their studies or should
be in poor health, this without in any respect reducing the amount of their shares."
Don Ramon del Rosario, one of the persons mentioned in these clauses, brought this action in
1902 against Don Clemente del Rosario, the then executor, asking, among other things, that the
said executor pay him an allowance from the death of the widow of the testator at the rate of
75 pesos a month, and that the executor allow him to live in the house in which the widow was
living at that time.
The widow of the testator, Doa Honorata Valdez, died on July 7, 1900.
The court below ordered judgment in respect to this allowance, and the right to live in the house
as prayed for by the plaintiff. In this we think that the court erred.
While by the eighth clause the support of the plaintiff and of Don Enrique Gloria is charged
against the estate, yet the eleventh clause makes it plain that this unconditional right was to last
only during the lifetime of the widow. After her death, the right to this allowance is made to
depend on the continuance of their studies. That this is the correct construction of the will is
made plainer by the eighteenth clause above quoted. In the case of their separation from their
aunt by her remarriage, they were entitled to the specified allowance of 25 pesos a month only
on condition that they were pursuing, their studies or were in poor health.
The court did not find that the plaintiff was still pursuing his studies. On the contrary, he found
that the plaintiff had fulfilled the condition by obtaining the degree of bachelor of arts in 1898.
The right to live in the house of the widow terminated at her death.

II. The seventh clause of the will of Don Nicolas is as follows:
"Seventh. The testator states that in the present condition of his affairs he has acquired, during
his married life, some tens of thousands of dollars, of which one-half belongs to his wife as her
share of the profits of the conjugal partnership, and the other half belongs to him as his share of
such profits; but, in view of the agreement entered into between the two spouses, the property
will not be partitioned, and upon the death of the testator all the said property will pass to his
wife, in order that she may enjoy the revenue therefrom during her lifetime, but without authority
to convey any of such property, inasmuch as she, being grateful for the benefit resulting, to her,
binds herself in turn to deliver said property at her death to the testators brothers, Don Clemente
del Rosario and Don Rosendo del Rosario, and his sister, Doa Luisa del Rosario, who shall enjoy
the revenue from the said property during their respective lives, and shall then, in turn, transmit
the same to their male children, both those born in wedlock and natural children who may be
known."
This was later modified by a codicil, as follows:
"That in the seventh clause of said testament he desires and wills that in the distribution of his
property and that of his wife among the male children of his brothers, Clemente and Rosendo
del Rosario, and those of his sister, Luisa del Rosario, in such distribution his nephews Enrique
Gloria and Ramon del Rosario must be understood to be included, in addition to the legacies
mentioned in his said testament."
The thirteenth clause of his will was as follows:
"The testator declares that in case Doa Luisa del Rosario should die before or after the wife of
the testator, then the legacy due her by virtue of this will shall not pass in its entirety to her male
children, except as to the sum of 1,000 pesos, the remainder to pass to Don Enrique Gloria
Rosario and Don Ramon del Rosario, natural sons of Don Clemente del Rosario, as already
stated."
This was modified by the codicil as follows:
"That in the thirteenth clause the testator provided that upon the death of his sister, Luisa del
Rosario, her male children were to inherit from her up to the sum of 1,000 pesos, and this he
rectifies, for better understanding, to the effect that it is his will that the remainder of all her
portion should be divided into equal parts, one-third to go to his brother Don Clemente del
Rosario and the other two thirds to be divided equally among his said nephews, Enrique Gloria
and Ramon del Rosario."
Doa Honorata Valdez made her will three days after that of her husband. The seventh clause
is as follows:
"The testatrix declares that she institutes her beloved husband, Don Nicolas del Rosario y Alejo,
as her heir to all the property which she may have at her death, and in the unexpected case of
the death of her said husband then she institutes as heirs her brothers-in-law, Don Rosendo and
Don Clemente del Rosario y Alejo, and her sister-in-law, Doa Luisa del Rosario, who shall enjoy
the usufruct during their lifetime of all the revenue of the said property. Upon the death of any
of them, then the property shall pass to the male children of her said brothers-in-law and sister-
in-law, the issue of lawful marriage or natural children who may be known; but upon the death
of her sister-in-law, Doa Luisa, then her share shall not pass in its entirety to her male children,
except the sum of 1,000 pesos, and the remainder shall be paid to her nephews, Don Enrique
Gloria and Don Ramon del Rosario, natural children of her brother-in-law Don Clemente del
Rosario."
Doa Luisa died one year after Don Nicolas and two years before the death of Doa Honorata,
which, as has been said, occurred on July 7, 1900.
Don Enrique Gloria died on July 6, 1900.
Don Ramon del Rosario claims in this action that he is now entitled, by virtue of both wills, to a
certain part of the share of the estates left to said Doa Luisa during her life, and he asks that
the defendant be directed to render accounts and to proceed to the partition of the said
estates. The controversy between the parties upon this branch of the case is as follows:
The defendant claims that the plaintiff is entitled to nothing under the wills, because the gift to
him was conditional, the condition being that he should be the natural son of Don Clemente,
recognized by the latter as such in one of the ways pointed out by the Civil Code; that he
cannot prove such recognition, the parol evidence presented at the trial being prohibited by
said Code, and that he has therefore not complied with the condition.
The plaintiff claims that such evidence was proper, that both wills state that Don Ramon del
Rosario is the natural son of Don Clemente, and that in any event the bequests are made to the
plaintiff by name.
The court below, holding the parol evidence immaterial, ordered judgment for the plaintiff as
prayed for.
(1) So far as the disposition of that part of the inheritance left in the aunts will to Doa
Luisa for life is concerned, the question is free from doubt. It is distinctly declared that Ramon del
Rosario and Enrique Gloria shall take certain parts of it after 1,000 pesos have been deducted.
They are pointed out by name as the legatees. It is true that they are called the natural sons of
Don Clemente. But this is merely a further description of persons already w ell identified, and, if
false, can be rejected in accordance with the provision of article 773 of the Civil de, which by
article 789 is applicable to legatees.
(2) The ninth clause of the will of Doa Honorata is as follows:
"The testatrix bequeaths the sum of 3,000 pesos to her nephews Enrique Gloria and Ramon del
Rosario in equal parts that is, 1,500 pesos each."
The plaintiff was entitled to one-half of this legacy in his own right. This has been paid to him.
Don Enrique Gloria died before the testatrix. By the provisions of articles 982 and 983 of the Civil
Code the right of accretion exists as to the other half in favor of the plaintiff and he is entitled to
have it paid to him.
(3) The will of Doa Honorata plainly declares that, on the death of any one of the life
tenants, the male children of such tenant shall inherit, and in respect to Doa Luisa it is expressly
declared that this shall take place whether she dies before or after the testatrix. The derecho de
acrecer did not therefore exist in favor of the other two life tenants, Don Clemente and Don
Rosendo. "En la sucesion testada es ley preferente la voluntad del testador, de modo que este
prohibiendo expresamente el derecho de acrecer, nombrando sustitutos, o marcando el
destino especial de cada porcion vacante, excluye la aplicacion de los articulos que vamos a
examinar." (Manresa, Comentarios al Codigo Civil, p. 276.)
This right does, however, exist in the share of Doa Luisa in favor of the plaintiff, for the reasons
stated in connection with the legacy of 3,000 pesos.
(4) We have passed upon the rights of the plaintiff to the share of Doa Luisa under the
will of Doa Honorata, because the interest is expressly left to him (en concepto de legado) as
a legacy. This is controlling. (Manresa, 315.)
These or equivalent words are wanting in the will of Don Nicolas. Applying article 668 of the Civil
Code, we must hold that any interest which the plaintiff may have taken in the share of Doa
Luisa under the will of Don Nicolas he took as an heir and not as a legatee.
The distinction between the two is constantly maintained throughout the Code, and their rights
and obligations differ materially. (Arts. 660, 668, 768, 790, 858, 891, 1003.)
(5) The legatee can demand his legacy from the heir or from the executor, when the latter
is authorized to give it. (Art. 885.) The powers given to the executors by the will of Doa Honorata
are contained in the fourteenth clause, which is as follows:
"The testatrix appoints as the executors of her will, in the first place, her beloved husband, Nicolas
del Rosario y Alejo, in the second place her brother-in-law Clemente del Rosario, in the third
place her brother-in-law Rosendo del Rosario, in the fourth place Don Ramon del Rosario when
he shall attain his majority, all of them without bond and free from the obligation of terminating
the administration within the legal term. At her death they shall take possession of all such goods
and things as may be her property, and are hereby authorized fully and as required by law to
prepare an inventory of said property, and to effect the division and partition of the estate
among her heirs. She also authorizes them to execute and sign deeds of partition, sales with a
resolutory condition, cancellations, receipts, acquittances, and such other documents as may
be necessary."
The twenty-first clause of the will of Don Nicolas is substantially the same Each will prohibited any
judicial intervention in the settlement of the estates.
The clause in the will of Doa Honorata which is a copy of that in the will of Don Nicolas is as
follows:
"The testatrix declares that she expressly prohibits any judicial intervention in this her will, although
minors, absentees, or persons under disability be interested therein, as it is her wish and will that
all the proceedings be conducted extrajudicially, and in case a family council should be
necessary, she designates the persons who, in accordance with the provisions of the Civil Code
now in force, should form such council, or else leaves their appointment to the discretion of her
executors."
If the executor was not authorized to pay these legacies, the heirs must pay them.
The life tenants and the heirs who take the remainder under these wills are numerous. If they did
not pay the legacies and did not agree upon an administrator, judicial intervention would be
necessary, the very thing which the testators had expressly prohibited. The important power of
making the partition was attempted to be given to the executors. In view of these considerations
and a study of the whole will, we hold that the executors are given power to pay the legacies.
The action, therefore, was properly directed against the executor so far as it related to the
allowance and the legacy of 3,000 pesos. As to these legacies, the action may be supported
also under article 902,2, which allows executors to pay money legacies.
It was also properly directed against him, so far as it related to the share to which the plaintiff is
entitled under the will of Doa Honorata in the portion left for Doa Luisa for life.
The provisions of articles 1025-1027 are no obstacle to this suit. That an inventory is being formed.
or that the creditors have not been paid, is a matter of defense which should have been set up
in the answer.
It was not properly directed against him in so far as it related to the similar share left to him by
the will of Don Nicolas. He took that as heir and not as legatee, and the heir can maintain no
such action against the executor.
The fact that the plaintiff under the will of Doa Honorata is a legatee of an aliquot part of the
estate, having become entitled to receive one-third of it on the death of Doa Luisa, does not
prevent him from maintaining this action against the executor. Though such a legatee closely
resembles an heir, yet, like all other legatees, he must seek his share from the heir or executor. (6
Manresa, 561.)
(6) While in this action he has a right to have his interest as legatee declared, yet it can
not be delivered to him without a partition of the estate.
It remains to be considered whether the executor has power to make the partition such power
is expressly given by the will. This provision is, however, void under the terms of article 1057 of the
Civil Code, which is as follows
"The testator may, be an act inter vivos or causa mortis, intrust the mere power of making the
division after his death to any person who is not one of the coheirs.
"The provisions of this and the foregoing articles shall be observed even should there be a minor
or a person subject to guardianship among the coheirs; but the trustee must in such case make
an inventory of the property of the inheritance, citing the coheirs, the creditors, and the
legatees."
Don Clemente, the executor, against whom the action was directed, was not only an heir as a
life tenant but also in fee after the death of Don Rosendo if the latter died without issue. Upon
the death of the widow, Doa Luisa then being dead, it became his duty to divide the estate
into three parts, or at least to set off the third, which was to pass to the plaintiff by the death of
the widow and Doa Luisa. In this partition he was directly interested, for, with his brother Don
Rosendo, he had a life interest in the part of the estate not set off to the plaintiff Article 1057
prohibited all heir from being contador for this very reason, namely, that the partition should be
made impartially.
Although the executor has no power to make the partition, the heirs can do so. (Arts. 1058-1060,
Civil Code.)
The plaintiff is not bound to remain a coowner with the other heirs. Being a legatee of an aliquot
part, he has the same right to seek a partition that an heir has. (7 Manresa, 578; art. 1051, Codigo
Civil.) But in so seeking it he must make parties to his suit all persons interested in the estate (7
Manresa, 577). This he has not done in this suit, and he consequently is not entitled to the partition
ordered by the court below.
(7) We have held that the only thing that can be decided in this case is the rights of the
plaintiff as legatee.
The court below ordered the executor to render accounts of his administration of both estates.
As to the estate of Don Nicolas, the only thing here in question is the right to the allowance. As
we hold that the plaintiff is not entitled to it, he is not entitled to any statement of accounts as
such pretended legatee.
As to the estate of Doa Honorata, he is entitled to be paid a legacy of 1,500 pesos. Article 907
requires the executor to render accounts to the heir, not to the legatee; and although by article
789 all of the provisions of Chapter II (in which both articles are found) relating to heirs are made
applicable to legatees, we cannot hold that this requires an executor to submit his accounts to
one who has no interest in the estate except to a money legacy when there is no suggestion
that it will not be paid when the right to it is established.
In respect to the share of Doa Luisa, there is reason for saying that a legatee of an aliquot part
is entitled to an accounting. But, inasmuch as in this case there can be no final determination
of the rights of the parties interested in the estate, because they are not all parties to this suit,
the executor should not in this suit be ordered to submit his accounts.
representation of the minor son of her late husband, asked and was granted leave to prosecute
the appeal.
This ruling was correct. According to the Spanish authorities, anyone legally affected by the
judgment might appeal. According to the American authorities, if a trustee refuses to appeal,
the beneficiary may do so in his name.
That the son of Don Clemente has a direct interest in the question of the allowance of 75 pesos
a month to the plaintiff is plain. We have held that in respect to this allowance the executor
represents the estate and the judgment against him binds it.
It would be manifestly unjust to allow an executor, with perhaps only a slight personal interest in
an estate, by withdrawing an appeal, to fasten upon the estate a claim which, as we hold, it
should not bear.
IV. At the argument of this case on the merits, after the appellant had closed, the respondent
made the point for the first time that the appellants brief contained no assignment of errors.

(8) The plaintiff in his complaint has limited himself to claiming the allowance, his rights to
the share of Doa Luisa, and the legacies left to him.
The question as to whether he would be entitled to any part of the share of Don Clemente upon
the latters death, under the seventh clause of the two wills, was not presented by the complaint
nor passed upon by the court and is not before us for decision.
(9) The result of the foregoing considerations is:
1. The plaintiff is not entitled to any allowance under either will.
2. He is not entitled to live in the house No. 128 Calle Clavel.
This is true. But a full assignment of errors is found in the bill of exceptions at pages 14 and 15. The
appellee answered the brief of the appellant without making any suggestion of this mistake. He
has been in no way prejudiced by it, and are can not affirm the judgment on this ground.
The judgment of the court below is reversed and the case remanded with directions to the court
below to enter judgment in accordance with this opinion. The costs of this instance will be
equally divided between the parties. So ordered.
Arellano, C.J., Cooper, Mapa and Ladd, JJ., concur.
Torres, J., did not sit in this case.

3. He is entitled to be paid, under the ninth clause of the will of Doa Honorata, the sum of 1,500
pesos, in addition to the 1,500 pesos already received under that clause.

4. He is entitled to the share of the estate left by the will of Doa Honorata to Doa Luisa during
her life, after deducting 1,000 pesos.

5. This share cannot be set off to him in this suit, but only in a proceeding to which all persons
interested in the estate are parties.

6. His interest in the share left to Doa Luisa during her life by the will of Don Nicolas cannot be
determine in this suit.

7. The executor cannot be required to render in this suit his accounts as such executor.

8. The plaintiffs rights under the seventh clause of the two wins, to the share left to Don Clemente
for life are not before us for decision.

III. After judgment had been rendered in the court below and a bill of exceptions allowed, but
before the record had been sent to this court, Don Clemente del Rosario, the defendant, died.
After his death Don Rosendo del Rosario, who was named in both wins to succeed to the
executorship on the death of Don Clemente, appeared in the court below and withdrew the
appeal and bill of exceptions. Thereupon the widow of non-Clemente, for herself and in