Republic of the Philippines alone or in those of his grandparents Edward and Antonina,

SUPREME COURT but even if he had promised to sell its participation in the
Manila
EN BANC
G.R. No. L-5561 January 26, 1954
LAZARO MONDOÑIDO, demandante-apelante,
vs.
PRESCA ALAURA VDA. DE RODA, como administradora
del Abintestato de Ricardo de Roda, demandada-apelada.
PABLO, J.:
On 24 and February 27, 1929 Ricardo de Roda awarded two
public writings (Exhs. A and B), forcing Mondoñido Lazaro
sell a portion of land which was to inherit from their
grandparents, receiving P200 as advance payment. At the
time of the granting of such deeds were already legal
settlement in the Court of First Instance of Cebu property of
his grandfather Eduardo de Roda. With minor differences,
the first document is written as the second.
On March 29, 1950 the plaintiff presented fulfilling demand
asking the two contracts. The defendant, as administrator of
the goods relict of Richard de Roda, presented two
defenses: (a) that such deeds are void as it concerned
future inheritance, and (b) that the action is barred.
estate of his grandfather and grandmother, the promise of
sale in terms of the latter property is null and gun denin
value because it refers to selling future inheritance. "On
future inheritance - says the Spanish Civil Code - you may,
however, enter into other contracts than those whose
purpose is to practice the division between living a flow
according to art. 1056." (Art. 1271, par. 2. º Arroyo against
Gerona, 58 Phil., 245; Tordilla against Tordilla, 60 Phil.,
172.) Antonina Ricardo Sepulveda lived even if awarded the
scriptures, but there are zero in For goods that Ricardo
recibria the intestate of his grandfather Edward, because
such goods were already in process relict of court settlement
when the otorgo.Los Ricardo rights to succession are
transmitted by operation of law from the time of death (art .
657, Code Civ Spanish.) Ricardo was already owner of the
3/24 parts of such property, by way of royal heritage,
present and future.
The defense of prescription must be estimated: since 1935
when the widow of Richard de Roda had received the
participation of her late husband in real relict of the late
Eduardo de Roda and the plaintiff could enforce the
scriptures (Exhs. A and B), but he did but only in March 24,
1950 in which I present demand. 15 years have passed
since, the army of such action ought exercised within the
term of ten years in accordance with Article 43, paragraph 1,
of the Code of Civil Procedure.

According to the agreement made, Eduardo Sepulveda

The plaintiff's claim that he should return the amount of
Antonina Roda and grandparents were Richard de Roda.
P200 as baseless prepayment. If the plaintiff had demanded
Edward died in 1905, leaving children and grandchildren as
the fulfillment of the scriptures within the period set by law
heirs. Ricardo, in representation of his father, inherited the
and the defendant had not met, then there would
3/24 parts of the goods of his abuelo.Ricardo died in 1933,
consequido compliance agreement or, failing that, the return
and in 1935 were distributed relict goods Eduardo.Ricardo
of the P200 in addition to the damages that have been
her late grandfather and his sister Roberta received in that
incurred.
to $ or their participation in the legacy of Edward, which was
administered by the widow of Richard, Roberta giving this to For the foregoing reasons, the decision confirms appelada
their participation in the products of that heritage. with costs against the appellant.

Sepulveda Antonina died in 1940, his estate was judicially

Republic of the Philippines
settled and in 1948 awarded to his heirs, children and
SUPREME COURT
grandchildren. In this adjudication the widow of Richard de Manila
Roda had not received any participation because she and
Roberta had agreed that the participation of Richard and EN BANC
Roberta goods Eduardo de Roda would stay in the hands of
the widow of Ricardo and the participation of the own
G.R. No. L-23923 March 23, 1927
brothers in the Sepulveda Antonina goods would receive
Roberta.
ANTONIO Ma. BARRETO, ET AL., plaintiffs-appellants,
vs.
After considering the facts and agreement of the two scripts, AUGUSTO H. TUASON, ET AL., defendants-appellants.
the court dismissed the claim for the reason that these
writings were about future inheritance. Against this decision
ROMUALDEZ, J.:
the plaintiff appealed and argues that these scriptures refer
to goods relict of Edward de Roda and not those of the
More than a century and a quarter ago, in the ancient town
spouses Eduardo and Antonina. No doubt they are written in to Binondo, now one of the districts of the City of Manila,
a way that one can not be sure if Ricardo was selling his Don Antonio Tuason founded a mayorazgo of strict agnation
participation in the estate of his late grandfather Edward upon the third and the remainder of the fifth of all his
properties by an instrument executed to that end, duly
approved by the King of Spain in a cedula issued for that
purpose.
It was therein provided, among other things, that the revenue
of the properties so entailed, and all such others as might be
annexed thereto, should be distributed in the proportion of
four-fifths for the first born, and his successors, and one-fifth
for the other eight children and other descendants of the
founder, mentioned in the instrument.
The plaintiffs allege that this disposition constituted a family
trust (fideicomiso familiar) which thereafter became subject
to the provisions of article 4 of the Statute of Disentailment of
October 11, 1820; that the defendants, and their
predecessors, all of whom descend from the lines of the first
born, have so considered it and have been paying, up to the
year 1921, sums of money on account of the fifth of the
revenue of the mayorazgo; that the defendants purchased in
1905 and 1915 the rights of some of the beneficiaries for the
said trust; that in the payments of the fifth of the revenue
mentioned, fraud was committed; that the plaintiffs, who are
part of the descendants of four of the eight children who
were the beneficiaries of the fifth of the revenue, were
without a copy of the instrument of foundation, the protocol
of the notary before whom it was acknowledged having
disappeared, and that for this reason they were unaware of
their rights and were unable to discover the fraud until the
year 1922 in which the original of the said Royal Cedula was
discovered in the archives of Seville, Spain; that the
defendants fraudulently obtained a Torrens title in their favor
upon the entailed real estate; that there are now no surviving
descendants of four of the eight children of the founder who
are beneficiaries of the fifth of the revenue. Plaintiffs
conclude by praying that defendants be required to pay
them, as damages, P500,000, that is, one-half of the family
trust administered by the latter, and that this liability be
enforced against the properties described in paragraph 31 of
the complaint; that defendants render an account of the
receipts, expenses and profits of the said properties from
February 4, 1874, when they took possession of them, until
December 31, 1921, and from January 1, 1922, until
judgment is rendered; that the defendants, jointly and
severally, pay them their share of the liquidation of the
product of said properties, after deducting the amounts
received on account by plaintiffs; that the defendants pay
legal interest upon such sums as may be adjudicated,
computed from the filing of the complaint until the complete
payment of the amounts therein demanded.
The defendants interposed several defenses, in the first of
which they alleged that the Royal Cedula upon which the
foundation rests and the Statutes of Disentailment are
contrary to plaintiffs' contentions. In their second defense
they allege possession of a Torrens title to the property in
question, free from charges or encumbrances. The third
defense is that of the prescription of the action here brought.
As a fourth defense the defendants Doña Paz Tuazon de
Gonzales, Doña Consuelo Tuason de Quimson, Don Juan
Tuason and Doña Albina Tuason contend that they inherited
the share of their father Don Jose Maria Tuason in the
properties constituting the endowment of the mayorazgo;
that proceedings were had for the administration of the
testate estate of the said deceased and a committee on
claims appointed which performed its duty, but that no claim
whatever was presented by any of the plaintiffs; that the
partition of the hereditary properties was decreed and the
proceedings in the estate declared to be finally concluded.
By way of counterclaim the defendants ask that plaintiffs
return the pensions received after the year 1917 on account
of the revenue of the properties which constitute
themayorazgo, as the payments of such pensions were
improper.
The judgment of the Court of First Instance of Manila before
which the case was tried dismisses the complaint and the
counterclaim, without costs.
Both parties appealed. The plaintiffs contend that the trial
court erred —
(1) In holding that before the disentailment the
possessors of entails were not mere
usufructuaries of the inalienable properties which
constituted the entail.
(2) In weighing the evidence and in deciding that
the provision made by the founder, Don Antonio
Tuason, in favor of his second-born children and
their successors is not a family trust.
(3) In confusing the charges and encumbrances
referred to in article 7 of the Statute of
Disentailment with the allowances for support and
pensions mentioned in article 10 of the same
statute.
(4) In failing to give effect to the allegations and
evidence of fraud adduced by plaintiffs with
respect to the performance of the trust by
defendants.
(5) In holding that the defendants were entitled to
obtain, as they did obtain, a Torrens title upon the
real estate in question, and that the allegation of
plaintiffs that they obtained it by fraud is not
supported by the evidence.
(6) In holding that even admitting that the plaintiffs
are within the general denomination of
descendants of the founder of the mayorazgo they
are not entitled to receive any part of the revenue,
it not having been demonstrated that they are
poor.
(7) In denying the new trial prayed for by plaintiffs.
The defendants assign as error the action of the
court in dismissing their counterclaim.
The principal undisputed facts which must be stated as a
basis for disposing of the questions presented are as
follows:
The mayorazgo now under consideration was created
February 25, 1794.
On the 4th of June of the same year, 1794, the founder, Don
Antonio Tuason, died in Manila.
On August 20, 1795, the mayorazgo was approved by Royal
Cedula.
On October 11, 1820, the Statute of Civil Disentailments was
promulgated in Spain.
On October 31, 1863, a Royal Decree was issued extending
to the overseas provinces the statutes concerning civil
disentailments and declaring them to be in force in such
provinces from March 1, 1864.
On February 1, 1874, Don Jose Severo Tuason, at that time
the possessor of the entail, executed a will, respecting
the mayorazgo and transmitting it as such to his first-born
son, Don Jose Victorino Tuason, and died the third day of
the same month and year.
On February 4, 1874, an inventory was prepared of the
properties left by Don Jose Severo Tuason, among which
the mayorazgo was mentioned.
On January 31, 1875, a liquidation and partition of the said
properties was made, and the properties of
themayorazgo were preserved and respected as entailed.
On January 25, 1878, Don Jose Victariano Tuason, the first-
born son of the testator, who was at that time thirteen years
of age, died in Metz (formerly Germany, now France).
On August 7, 1896, the liquidation and partition of the
property was registered.
On October 9, 1905, Don Jose Rocha y Ruiz sold to the
heirs of Don Jose Severo Tuason his share of the fifth of the
revenue of the properties of the mayorazgo.
On November 16, 1916, Doña Remedios Aragon y Rocha
also sold to the heirs of Don Jose Severo Tuason her share
of the fifth of the said revenues.
The books of the defendants show the receipts and
disbursement relating to the real estate of
the mayorazgo(Exhibit 2) from January, 1904, until
December, 1922. In each year items appear under the
heading, "Participations in one-fifth of the products." In the
year 1905 an entry appears "Purchase of rights as to one-
fifth of products;" in the year 1906, "Purchase of rights to
one-fifth of the products;" in the year 1910, "Purchase of
rights to one-fifth of the products," and in the year 1911
"Notary's fees for deed of assignment with respect to one-
fifth of the products;" in the year 1912, "Notary's fees for
deeds of assignment as to one-fifth of the product."
In the course of the trial the parties agreed upon certain facts
by means of the following stipulation:
The parties to the trial the parties agreed upon
certain facts by means of the following stipulation:
The parties to the above entitled cause appear
before this court and agree that the court may
consider as admitted, without the necessity of
evidence, the following facts:
I. The facts alleged in paragraphs I, II, III, IV, V, VI,
VII, VIII, IX, X, XI, XII, XIII, XIV, XV, XVI, XVII,
XVII, XIX, XX, XXI, XXII, XXIII, XXIV, XXV, XXVI,
XXVII, XXVIII, XXIX, XXX, XXXI, AND XXXII of the
amended complaint dated November 7, 1923.
II. The facts alleged in paragraphs 3 and 4 of the
first special defense in the answer to the amended
complaint, dated April 16, 1924.
III. That when Don Jose Severo Tuason died on
February 3, 1874, all the properties which
constituted themayorazgo passed to his first- born
son, Don Jose Victoriano Tuason, in accordance
with his will, a certified copy of which is attached,
marked as Exhibit 1.
IV. The facts alleged in paragraphs 6, 7, 8, 9, 10
and 11, with the exception of the allegation
contained in paragraphs 9 and 10 that the
properties which constituted
the mayorazgo passed freely to Don Jose
Victoriano Tuason, which is not accepted by
counsel for plaintiffs, as this is the question of law
raised by complaint.
V. That none of the plaintiff received any pensions
whatever as a charge against the revenue or
products of the properties which constituted
the mayorazgo at the time when the same passed
into the hands of Don Jose Victoriano Tuason, and
with the exception of those who are mentioned in
paragraph 2 of the counterclaim, none of them,
nor their ancestors, received any pensions
whatever as a charge upon the revenues or
products of the properties which constituted
the mayorazgo during the ten years prior to the
date of the filing of the original complaint.
VI. The facts alleged in paragraph 2 of the second
special defense of said answer to the amended
complaint.
VII. The facts alleged in paragraphs 1, 2, 3, and 4
of the fourth special defense of the defendants
Doña Paz Tuazon de Gonzales, Doña Consuelo
Tuason de Quimson, Don Juan Tuason, Doña
Albina Tuason contained in said answer to the
amended complaint.
VIII. All the facts alleged in paragraph 2 of the
counterclaim contained in the said answer to the
amended complaint.
IX. That the present assessed value of
the Hacienda Santa Mesa-Diliman is three million
five hundred fifty thousand six hundred forty-six
pesos (P3,550,646); of the Hacienda de
Mariquina one million five hundred seven
thousand one hundred forty pesos (P1,507, 140);
that of the lots and buildings on Calle Rosario five
hundred forty two thousand three hundred eighty
two pesos (P542,382); and solely for the purpose
of the decision in this case it is agreed that their
real value as between a purchaser desiring to buy
and a vendor willing to sell said properties is the
same as their assessed value.
X. That the revenue and expenses of the
properties on calle Rosario are those shown in the
statement attached, marked as Exhibit 2, and that
said statement is taken from the books of the
defendants.
XI. That the receipts and expenditures of
the Hacienda Santa Mesa-
Diliman and Mariquina are also those which
appear in the statement attached, marked as
Exhibit 2, and that said statement is taken from the
books of the defendants.
XII. That the receipts and expenditure of
the Haciendas Santa Mesa-
Diliman and Mariquina are also those which
appear in the statement attached, marked as
Exhibit 3, which was also taken from the books of
the defendants.
XIII. That the stipulation contained in the
preceding paragraphs shall not prevent the
plaintiffs from impugning as improperly charged,
any of the items appearing in said two statements.
XIV. That in the record of the testamentary estate
of the late Don Juan Tuason, case No. 16031,
above-mentioned, a document appears, a copy of
which is annexed, marked as Exhibit 4.
XV. A copy of the deed of partition of the property
of Don Jose Victoriano Tuason, is attached and
marked Exhibit 5.
XVI. That the plaintiffs, who, as admitted in
paragraph 2 of the cross- complaint, collected
from the defendants the sums mentioned in said
paragraph, did so upon receipts preprared by Don
Augusto Tuason, acting for himself and his
brother, and worded as follows:
Received from Don Augusto Tuason the sum of * *
* the part corresponding to me of the fifth of the
products of the properties of the
Tuason mayorazgo corresponding to the current
year.
XVI. That Don Jose Rocha y Ruiz Delgado, as the
first party, and the brothers and sister, Doña
Teresa, Don Juan, Don Mariano, Don Demetrio
and Don Augusto Tuason, as the second parties,
executed a contract of assignment of right marked
Exhibit 6; and likewise Doña Remedios Aragon y
Rocha and the said brothers and sister entered
into the contract of assignment of rights marked
Exhibit 7.
Manila, P. I., August 30, 1924.
ANTONIO SANZ and JOSE GALAN BLANCO
BY (Sgd.) ANTONIO SANZ
Attorneys for Plaintiffs
ARANETA & ZARAGOZA
BY (Sgd.) GREGORION ARANETA
Attorneys for Defendants
The various questions raised by the parties turn upon these
fundamental points, namely, (a) the nature of themayorazgo;
(b) the Statute of Disentailment and the conduct of the
interested parties and their effects; (c) defenses to this
action alleged by defendants; and (d) the persons entitled to
the relief prayed for.
THE NATURE OF THIS "MAYORAZGO"
Its literal text, together with that of the Royal Cedula by
which it was approved and confirmed, is as follows:
Don Carlos, by the grace of God King of Castile,
etc., whereas on behalf of you, Don Vicente
Dolores Tuason, Captain of Infantry of the Royal
Armies, Lieutenant-Colonel of the Regiment of the
Prince Royal, of the City of Manila, a resident of
the said city, Testamentary Executor of your
deceased father, Don Antonio Tuason, Lieutenant-
Colonel of the said Royal Armies and Colonel
attached to the above-mentioned regiment, it was
made known to me, on the 13th of April of the
present year, that your said deceased father, on
the 25th of February of last year, founded
a mayorazgo (estate tail) of strict agnation, upon
one third and the remainder of the fifth part of all
his property, estate and effects which at that time
were of the value of one hundred and thirty-five
thousand pesos, appointing you in the first place
to enjoy the same as his first-born, and after you
take your place your eldest son and at his death to
succeed him his eldest son and so on, adding that
although the wishes of Don Antonio Tuason in
regard to the accomplishment of said entail in all
its parts were very keen, he could not effectuate
them on account of his death, but that the duty of
carrying them into effect had been imposed upon
you not only on account of your appointment as
Executor of his Estate, but also as being the first
one selected to possess the mayorazgo, with
which object, you and your seven brothers
received during the lifetime of your father your
respective paternal legitimes; that your said father
made explicit designation of the real estate that
was to be entailed with the advertence that if any
amount should be lacking to complete the full
value of the third and the remainder of the fifth, it
should be delivered in cash to be invested in real
estate specially in lands; that nothing more
remained to be done, according to the attached
verified copy of the instrument establishing the
said entail which copied literally is as follows:
'I, Don Antonio Tuason, a resident of
this Pueblo of Binondo, beyond the walls of the
City of Manila, in the Philippine Islands,
Lieutenant- Colonel of Infantry of the Royal Armies
of H. M. the King, and Colonel attached to the
Regiment of Militia of the Prince Royal; being in
good health according to my understanding and in
the full use of my senses and mental faculties,
desiring on the one hand to recompense the good
services rendered to my person and my house by
my eldest living son Don Vicente Dolores Tuason,
Captain of the Royal Armies, and Lieutenant
Colonel of the above-mentioned Regiment, and
desiring on the other hand to insure in part the
permanence of my estate, without diminishing
the legitimes of my other children, so that they
may fully enjoy them, and taking into consideration
the evanescence of the great family fortunes
which have existed in these Islands on Account of
their not having been entailed, I have determined
to established an entail or mayorazgo of the third
part and the remnant of the fifth part of all my
property, as I have stated in my last will and
testament and in my codicils, and with this object
in view, making use of the right that has been by
law conferred upon me, I execute this deed with
the following clauses and conditions subject in
everything to whatever the Royal Audiencia may
determine and H. M. may decide, to all of which I
now and forever assent.
'First. Having taken stock and inventory of all the
property of which I am now possessed, in cash,
real estate, jewelry and other things, I found
myself to be the possessor of an estate of the
value of one hundred and thirty-five thousand
pesos, which after having deducted the third and
the fifth, left me a remainder of seventy-two
thousand pesos, which I divided amongst my eight
children, there corresponding to each one of them
the sum of nine thousand pesos, which sum was
actually delivered to each and every one of them,
as shown by documents which I have in my
possession; and the third and the remnant of the
fifth, I hereby devote to the aforesaid entail, and if
by accidents of time the total value of my property
should increase or diminish, so also shall the said
capital of this entail, which never must be allowed
to exceed the total value of the said third and
remainder of the fifth.
'Item.
'That the possessor of this entail or mayorazgo or
betterment must take an oath before the Court of
Justice of the territory, to observe and perform all
the clauses and conditions contained herein, and if
he should fail to observe and perform any of them,
either totally or in part, he shall lose his right to
the mayorazgo, which shall pass to the next
successor.
'Item.
'That he must keep in his possession the original
parchment Royal Patent of Nobility of my house,
and in case that it should be lost, he must
immediately request a certified copy thereof, from
the Royal Audiencia, the Noble City, or the Court
of Justice of Tondo in whose offices it has been
recorded and so likewise he must do with the
certificate of the coat of arms and insignia of my
house, which have been registered in the said
Noble City.
'Item.
'He must uphold all the other rights and privileges
conferred upon my house by the aforesaid Royal
Letters Patent and redress all wrongs in violation
thereof which may be committed or attempted
against my legitimate descendants, bearing in
mind that one of my objects, in the establishment
of this mayorazgo, is to uphold and defend the
honor that H. M. has designed to confer upon me,
as a proof of the esteem in which I hold those
gracious honors and the deep gratitude I feel on
account of them.
'Item.
'It shall be his duty to bear, as his first surname,
my family name of Tuason, and so shall he sign
his name in all judicial and extrajudicial matters;
he shall also display my coat of arms upon all his
crests and buildings and he who shall fail to do
any of these things, shall forfeit his right of
succession to the mayorazgo, and I hereby
declare him excluded therefrom.
'Item.
'It shall be his duty to set apart one-fifth of the net
revenue derive from the entail each year, and that
one-fifth part shall be divided into eight parts,
giving one to each of my eight children, and in
their absence, to my grandchildren, but upon the
understanding that if one or more of my children
should die without succession, the part belonging
to them shall be distributed among my
grandchildren and other descendants of mine
according to their needs and as prudence may
dictate to him, so that, when the time arrives that
none of my children or grandchildren are alive, it
shall then be always understood that said fifth part
shall be applied to all those of my descendants
who are poor, the appointment to be made by him
prudently according to their needs and therefore
the possessor of the entail is hereby charged to
discharge this duty with conscientious scruple.
'Item.
'That the holder of this mayorazgo, having
legitimate sisters who may desire to marry or to
enter into some convent, shall assign to the former
an appropriate marriage portion, and shall defray,
for those who may desire to become nuns, all the
expenses that may be necessary up to the
moment that they take the veil, it being well
understood, nevertheless, that all these expenses
shall be taken out of the profits and never out of
the capital.
'Item.
'Bearing in mind that the entailed houses and
other real property belonging to
this mayorazgomay be in danger of fire, on
account of their proximity to houses built of nipa,
bamboo, and other combustible materials, I order
the possessor of the mayorazgo to keep always in
good condition the fire engine from Europe, which
I now have at my home, and which I bought for
that purpose, at the cost of P110. Under no
excuse whatsoever, even in the case of a public
calamity, must that engine be taken out of my
home, except for the purpose to which I destined
it; and should it ever deteriorate or become
useless, he must immediately substitute it with
another of the same quality, the cost of which
must be taken out of the earnings of
themayorazgo; so that if through his guilty
negligence any of the properties of
the mayorazgoshould be destroyed by fire, as a
penalty for his non-performance of this condition,
he shall be deprived of the mayorazgo and this
shall pass to the next succession but his
successor shall be obliged to rebuild the property
destroyed, and the cost of this work shall be taken
out of the entire earnings of this mayorazgo, if it be
necessary, but never out of the capital, so that he
shall first apply the earnings of the mayorazgo to
whatever expenses may be necessary for the
reconstruction of that property, rather than to his
own personal wants.
'Item.
'He shall also provide another fire engine at the
expense of this mayorazgo, to the value of P200,
more or less, according to its size, and it shall
always be kept in good condition by the holder of
this mayorazgo, with the object of rendering
assistance to the public with it; and in case of fire
the said engine shall be handled by the servants
of the possessor, or by any other well known and
expert persons; but if by reason of this my desire
to help the public in its need bickering and
controversies should arise or if the strange
persons who are to handle the said engine should
not do so with all the care that such a delicate and
expensive engine requires, or should it become a
cause of worry and unpleasantness for the
possessor of the same, then this clause shall not
stand and have the effect that I intended it to have,
but I earnestly caution the holder of
the mayorazgo to observe as faithfully as possible
this my pious request, and so attract the blessings
of heaven, for it is my earnest desire that the
public shall never lack an engine so necessary as
that fire engine, the cost, repair and replacement
of which must be taken out of the earnings of
the mayorazgo. I also enjoin the possessor of
the mayorazgo to be pious and generous in his
expenditures for Divine Worship, the Service of
the King, and the Public Welfare (without vanity)
so that the Lord may bless all his undertakings.
'Item.
'That the possessor of the mayorazgo must
necessarily be a layman, and never a member of
any religious order under vow of chastity; and
should he enter any religious order while holding
the mayorazgo, it shall ipso facto pass to his
children.
'Item.
'That he must be a Roman Catholic Christian and
free from the stigma of treason against H. M. and
the country, or that of any other infamous crime,
and should he be guilty of any of these crimes
while holding the mayorazgo, it is my desire that
he shall be considered as having been excluded
from the same one hour exactly before the time he
committed the said crime, and themayorazgo shall
pass to the next in the order of succession which I
establish in this document, and in the same way
let the mayorazgo be understood as having been
lost to him who should dare to mortgage it or in
any other way impose or levy upon it any charge
that may endanger its existence and let everything
that he may do against the said mayorazgo be
considered to be null and void.
'Item.
'As soon as the establishment of
this mayorazgo shall be approved, I shall give and
deliver to him the value of the said third and fifth,
deducting the amount that I may consider it
necessary to expend upon the charges on the fifth,
and should this amount deducted be found
insufficient for it, the amount that may be lacking
shall be taken from the mayorazgo, but should it
be found to be in excess of this requirements, the
surplus shall be returned to the funds of
themayorazgo.
'Item.
'The properties upon which I establish this entail
are: My private residence, with every thing that is
contained within its fence, as well as the
dependencies that are built close to the said
house and fence on the right hand locking towards
the church of this pueblo of Binondo, which are a
shed, with a tile roof, having display tables; a
stone house and the lot of land that reaches put to
the estero towards Calle Nueva of this pueblo, all
of its surrounded by a stone wall; the image of Our
Lady of Soterrana of Nieva, dressed in a cloth of
beaten gold, and contained within its golden
tabernacle which is at this date in my private
residence; and the organ which is also in the
reception room of my said residence. The value of
my residence is declared in my inventory taken the
twelfth of October, seventeen hundred and
seventy- nine, adding to its the sum of P2,200 for
the improvements made on it, and which have not
yet been completed; and the value of the other
properties shall be their purchase price according
to their documents of sale, all of which property is
absolutely free for any encumbrance; and if any
amount should be lacking to complete the full
value of the third and remainder of the fifth, it shall
be delivered to the holder of the mayorazgo, in
cash, to be invested in real estate, especially in
lands, which shall also become capital of
the mayorazgo; and if before the Royal approval of
the mayorazgoI should find some houses
appropriate for this purpose, I shall buy them for
this object and I shall declare them to belong to
the mayorazgo.
'Item. aforesaid son, Don Vicente Dolores Tuason, on
account of the great service he has rendered me,
particulary in my old age, for which reason I
'It shall be the unavoidable annual duty of the
consider him to have been bettered upon valuable
holder of this mayorazgo, to order a novena of Our
consideration, and threfore he shall enjoy the
Lady of Soterrana (of my special devotion) to be
possession of the same, upon the terms set forth,
made at the Parochial Church of thispueblo of
for all the days of his life, and after his death his
Binondo, setting up the corresponding candles in
ldest son, if he be alive, shall succeed him, and in
Her altar, and on the last day of that novena to
default of his eldest son, he shall be succeeded by
have a public procession of that image through the
the ledest son or grandson of this said eldest son,
streets of this pueblo, as I have been accustomed
and so on, following the direct line of descent; and
to do up to now, with all possible ceremony, and
in the absence of any direct lineal descendant of
for this purpose I now have in my hands the sum
his eldest son, let the possession pass to the
of P2,000 belonging to this pious object (the
eldest living son of the aforesaid Don Vicente, and
(establishment of which has been set forth in my
should there be no son left alive, then to the eldest
aforesaid last will and testament), the earnings of
grandson of his eldest son; and should the male
which sum at the rate of five per centum per
line of my first born be completely extinguished I
annum, which are one hundred pesos, have been
desire that the mayorazgo shall pass unto the
destined to the preservation and maintenance of
eldest son of my deceased son, Don Santos
this act of devotion; he shall also fulfill another
Tuason, and observing in the succession this
pious trust in favor of the souls in Purgatory, to the
same order of procedure, the descendants of my
same amount of two thousand pesos, left by my
other sons shall in their turn be called to the
deceased wife, in my possession, the interest
possessions of the mayoragzo in the successive
whereof, which is one hundred pesos, must be
order of the dates of their birth. While there may
delivered to the parish priest of this pueblo to say
remain a single male descendant of any of my
a collector of masses in the same church during
male children no female descendants of mine shall
the aforesaid novenary of our Lady, giving
enter into the possession of the mayorazgo; for it
six reales as alms to each of these priests for
is my will that the said possession shall pass from
every mass, and if there be any surplus money
male to male in strict agnation. But should there
after the aforesaid novenary it is my will that it be
be absolutely male descendant of the male line, let
totally spent for masses in behalf of the souls in
the descendant of the female line enter into
purgatory, and in order that from now henceforth
possession, observing the same order that has
the needs of both these pious intentions be duly
been prescribed for the male line, and always
attended to, as being one of the objects which I
giving preference to the male rather than to the
have had in mind in establishing this mayorazgo, it
female; it being understood that in this order of
is my will that the aforesaid sum of four thousand
succession the possession shall be given to that
pesos belonging to the two above-mentioned
one of my descendant most nearly related to the
pious foundation be also entailed in the
last lineal descendant of my son Don Vicente who
said mayorazgo. It is also my will that the jewelry
may have held themayorazgo; and in this
of gold, silver and diamonds belonging to the said
aforesaid appointment females shall be qualifed to
image and estined exclusively to Her cult, which I
possess themayorazgo; but the males shall be
have actually in may possession at this date, and
always preferred to the female even though the
which are described in a separte inventory, be
latter may be an elder sister; and in the absence of
also kept in his possession by the holder of
all descendants of the female line of my sons, let
the mayorazgo.
the possession pass to the descendants of my
daughters in the order of their birth, starting with
'Item. those ofmy eldest duaghter, Doña Esutaquia, and
the order of this succession shall be the same as
that already prescribed for the male line.
'It is my will that all the property hereby entailed
and all that which may be added to it shall not be
sold or alienated, in whole or in part, or charged or 'Item.
ecumbered or mortgaged wit censos, or any other
kind of encumbrance or charge; and if the contrary
'And should the line of my descendants of all kinds
is done it shall be void and he who shall have
be absolutely and completely extinguished, then
done it or attempted to do it shall immediately lose
the mayorazgo shall be applied to the
the possession of themayorazgo, and it shall pass
maintenance of the Regiment of the Militia of
out the next in succession, who shall make
Mestizos Sangleyes, entitled of the "Prince Royal"
demand for the annulment of the alienation within
or any other body of soldiers of the same
thirty days; and if he shall fail to do so, he shall
nationality which may be bearing arms in the
also lose themayorazgo, and it shall pass to the
service of our King; but if at that time there should
following possessor; and the same rule shall apply
be in existence any Monastery for descendants of
as to all the possessors, and this clause shall be
that nationality, then from that time I deed in favor
observed although ignorance of it be alleged.
of it one-half of the aforesaid mayorazgo; and
should there not be at that time either of those two
'Item. things, let the whole mayorazgo revert to the
Royal Treasury. And with these clauses,
conditions, and charges I hereby make, constitute
'To the enjoyment and possession of and establish this mayorazgo, constituting its
the mayorazgo I hereby call in the first place my lawful possessor the owner (Señor) thereof upon
 the terms set forth; and it is my desire that it have
all legal effect that other mayorazgos have and
that it should be so considered after obtaining the
Royal Consent and not before, because in
establishing its clauses and conditions it has been
my only aim to make them known to the Royal
Audiencia and to H. M. so that in view of the same
they may alter or modify them according to their
will, with the understanding that I, as a faithful
vassal and obedient subject, hereby accept the
establishment of the mayorazgo under any terms
and conditions that may meet with the approval of
H. M., in this pueblo of Binondo this 25th of
February, 1794. Antonio Tuason.'
In view of which you concluded by praying that the said
document, having been presented to me, I should deign to
approve, in each and every one of its terms, the above-
mentioned entail of strict agnation, which of the third and the
remainder of the fifth of his property the aforesaid Don
Antonio Tuason established in favor of yourself as first-born
son, and of your own and his other descendants under the
terms set forth therein, and requested that the corresponding
royal permit be duly issued. And bearing in mind the report
of my Council of the Indies, and a letter from my Royal
Audiencia of Manila, dated July 22 of last year, declaring that
the said Audiencia could find no objection to the
establishment of the above-mentioned entail and attaching
thereto a certified copy of the document in which the
aforesaid entail was established, and in view furthermore of
the reports received by me from the Royal Exchequer and
from my Fiscal, I have deigned to approve your request in
consideration of all the circumstances detailed above as well
as of the services you rendered me by paying me the sum of
8,800 reales asHalf Annata.
Therefore, of my own volition, with full knowledge of all the
facts, and by virtue of my Royal Prerogative, of which I have
decided to make use in the present instance, and of which I
do make use as King and natural Lord, recognizing no
higher authority over me in regard to my temporal power, I
hereby do approve the establishment of
the mayorazgo founded by your above-mentioned father,
Don Antonio Tuason, and I hereby declare it to be in effect
henceforth forever, and I do ratify and confirm henceforth the
validity of the same, in the terms in which it was established,
with all the clauses, conditions, penalties and restitution
provided for in the body of the said document, and do
obviate and overcome any all obstacles, fault or defects, of
fact or of law, of form, order or substance, that it may be
necessary for me to validate in order to confirm and ratify the
said mayorazgo; and I ordain that all the foregoing be put
into effect, fulfilled and observed, notwithstanding any and all
other laws,fueros, rights, usages, customs, pragmatics, and
conditions of these Kingdoms and Realms, as well as of the
Indies, be they general or special, and whether passed in
parliament or otherwise, for should any such exist contrary
hereto, I hereby repeal them and declare them to be null and
void in whatever may relate to the effect and validity of this
Cedula, although leaving them in full force and effect in
regard to all other matters.
And by this my letter or its duly certified copy signed by a
notary public I request my beloved son, His Serene Highnes
the Prince Don Fernando, and I order all the Infantes,
Prelates, Dukes, Marquises, Counts, Knights, Ricos
Hombres, Priors of the orders, Comendadores, and Sub
Comendadores, Wardens of my Castles, my fortified houses
and dwellings; the members of my council, Presidents,
Regents and Justices of my Royal Court of Justice, the
Wardens and Sheriffs of my House, Court and Chanceleries,
all the Governors and Corregidores,Veinticuatros, Knights,
Squires, Officers and gentlemen, all the Majors, Naval
Provosts and all of my Judges and Justiciars, as well as all
the other inhabitants of all my Cities, Towns and open places
of these my Kingdoms and Realms, and of the Indies and
Islands of the Ocean Sea, not only those that exist at
present, but also those that may come into existence in the
future (I order them I say) to observe and obey and to
enforce the observance and fulfillment of every thing that
may be contained in this, my letter of approval and
confirmaion, in the exact terms in which it is set forth, and
that upon no excuse or cause whatsoever shall they oppose
on their own part or allow others to oppose, any obstacles
whatever to the fulfillment of this my will; and let this my
letter be registered in the "Contadurias Generales de
valores," Royal Exchequer and my Council of the Indies.
Dated in San Ildefonso, the 20th of August, 1795.
I, THE KING
At the beginning and on the left margin there is a note
reading as follows:
Approving and confirming the mayorazgo founded
by Don Antonio Tuason, late Lieutenant-Colonel of
the Royal Armies, and supernumerary Colonel of
the Regiment of the Prince Royal of the City of
Manila, in the Philippine Islands, upon the terms
and conditions therein set forth.
Done in duplicate, countersigned by the Secretary,
Don Antonio Ventura de Franco.
Neither the authenticity nor the due execution of the
instrument above set forth has been disputed, nor its solemn
legalization and confirmation in strict accordance with the
laws then in force.
The disagreement of the parties is as to whether the first-
born possessor of the entail is or is not a mere usufructuary
and if the mayorazgo is or is not a trust (fideicomiso).
At first sight it might appear to be unnecessary to decide
these questions, if plaintiffs' action is based, as alleged,
upon the right of their ancestors to a participation in the fifth
of the revenue is a fairly trust subject to article 4 of the
Disentailing Law of October 11, 1820, such participation in
the revenue, by virtue of the provisions of that article,
became converted into a participation in a fifth of the
properties of the mayorazgo. There would be no occasion for
such condition and participation in the property if the first-
born possessor had, not only the usufruct, but also the
naked ownership, nor if the entail were not a trust.
Both parties agree, nevertheless, that the entail under
consideration is a mayorazgo. Now what is a mayorazgo?
Let us take the definition given according to Gutierrez by
Molina in his "Hispan Primogeniis," accepted by the parties.
It is as follows:
 Majoratus est jus succedendi in bonis ea lege
relictis ut in familia integra perpetuo conserventur,
proximoque cuique primogenito ordine succesivo
deferantur. (Gutierrez "Codigos," tomo 2, p. 207.)
(A mayorazgo is the right to succeed to the property left
upon the condition that it be preserved perpetually intact in
the family and that it be transmitted in order of succession to
each next first-born.)
In the present foundation we find: Succession to the
hereditary estate; the condition that the properties be
preserved perpetually intact in the family of the founder; the
requirement that they shall pass in the established order to
each succeeding first-born.
Now let us see if the first-born possessor of the entail is or is
not a mere usufructuary.
In the text of the instrument of foundation we see that the
founder does not give to the first-born the title of "owner" but
only that of possessor, and that he applies this designation
to him with frequent insistence. In the seventeenth clause it
is declared that it is the enjoyment and possession of
the mayorazgo (not the absolute ownership) to which the
first-born is called. And when, in the eighteenth clause he
calls him "owner" (señor), the founder takes care to do so
under express limitation of the concept, for he says: "And
with these clauses, conditions and chargesI hereby make,
constitute and establish this mayorazgo, constituting its
lawful possessor the owner (señor) thereofupon the terms
set forth . . . ." (Emphasis ours.)
With respect to the extent of the right of the first-born
possessor of the mayorazgo upon the properties thereof, this
is what he said upon this subject in clauses 8 and 16, which
we again transcribe, as follows:
Id. It shall be his duty (that of the possessor of
this mayorazgo) to preserve all the entailed
properties in good condition and to try to increase
them as much as possible, and their increase shall
also be incorporated into the mayorazgo. . . .
(Emphasis ours.)
It is my will that all the property hereby entailed
and all that which may be added to it shall not be
sold or alienated, in whole or in part, or charged or
encumbered or mortgaged with censos, or any
other kind of encumbrance or charge; and if the
contrary is done it shall be void and he who shall
have done it or attempted to do it shall
immediately lose the possession of the
mayorazgo, and it shall pass to the next in
succession, who shall make demand for the
annulment of the alienation within thirty days; and
if he shall fail to do so, he shall also lose
the mayorazgo, and it shall pass to the following
possessor; and the same rule shall apply as to all
the possessors, and this clause shall be observed
although ignorance of it be alleged.
Consequently, the first-born, according to the terms of this
foundation, has the "enjoyment and possession" of the
properties of the mayorazgo, but subject to the strict
obligation of preserving them intact, it being absolutely and
severely forbidden to sell them, alienate them or encumber
them in any manner whatsover.
If his rights are limited in this manner it is our understanding
that the first-born who enters into possession of
thismayorazgo does not acquire the dominium directum over
the entailed properties, but only their enjoyment, or, in other
words, the dominium utile, and this is precisely what
constitutes a usufruct, which, as we know, is the right to
enjoy the property of another with the obligation of
preserving its form and substance. (Jus alienis rebus untendi
fruendi salva rerum substantia.)
But, if the first-born possessor is not vested with the
ownership of the properties, whom is it vested?
It is vested perpetually in the descendants of the founder, in
all their indefinite succession. This is what is implied in
Molina's definition which we have transcribed: ". . . Ut in
familia integra perpetuo conserventur . . . ."
Therefore it is that Alcubilla (Diccionario de la Administracion
Espanola, vol. 7, p. 1000), in speaking of themayorazgo,
begins by saying: "The mayorazgo was an entail of
properties subject to the ownership of a family with the
prohibition of alienation." (Emphasis ours.)
Escriche, in his "Diccionario Razonado de Legislacion y
Jurisprudencia," (vol. IV, p. 67) gives a similar definition,
which is as follows:
Mayorazgo. The right to succeed to entailed
properties, that is, to properties subject
to perpetual ownershipby some family, with the
prohibition of alienation. (Emphasis ours.)
It is to be noted that both Alcubilla and Escriche, use the
expression ownership of the family," and not ownership of
the first-born possessor."
That the possessor of mayorazgos were nothing more than
usufructuaries, has been so decided by the Supreme Court
of Spain in its judgment of June 5, 1872, of which the part
pertinent to this case is as follows:
Up to the time of the publication of the Disentailing
Law in 1836 [in the Philippines read March 1,
1864] the possessors of entails and mayorazgos
HAD ONLY THE RIGHT OF USUFRUCT of the
inalienable properties which constitute them, with
the obligation of performing the obligations
imposed by the founder, for which reason they
could only renounce or transfer that same right
and the powers granted them by the foundation.
(Capitals and brackets ours).
Let us pass to the second point. Is this mayorazgo a trust or
not?
Counsel for defendants allege that the mayorazgo is an
institution distinct from the trust (fideicomiso), and that the
entail here in question is a mayorazgo and not a trust.
It is true that the mayorazgo must be distinguished from the
trust. But it is also true that the differences between one and
the other do not make the mayorazgo incompatible with the
trust. Gutierrez, in his work entitled, "Codigos o Estudios
Fundamentales sobre el Derecho Civil Espanol," second
volume, pages 191 and 192, second edition, says:
Mayorazgos have also been compared to trusts
(fideicomisos), but we cannot believe that the intention, in
doing so, was to make no distinction between them. To say
that they were introduced in imitation of the fideicomisos and
of the feuds not equivalent to the affirmation that they are
either one or the other. If it is necessary to seek out the
antecedents of this institution, one must go to the source of
all of them—the Roman Law and the Germanic Law. The
former gives us as our sole model the fideicomiso; but
knowing what this was, and the causes and effects of this
testamentary disposition, it would have been an error,
impossible to our authors, to regard the fideicomiso as the
source from which the mayorazgos were derived. Let us see
how Paraladorio explains the matter in his Diferencias: 'The
nature of the mayorazgo has such affinity with
the fideicomiso that to some extent Palacios, Rubios,
Covarubias, Menchaca, etc., are not without justification for
their statement: Nihil aliud esse majoratum quam
fideicommissum quoddam in perpetuum relictum cum
primogeniti praerogativa. Nevertheless they are to be
distinguished, first because the fideicomiso can be created
by will or codicil only whereas the mayorazgo can be created
by contract; the fideicomisario (beneficiary) cannot take
possession of the property by his own authority; the
successor to a mayorazgo, as soon as the condition of the
instrument of foundation is complied with, acquires the
possession thereof. The mayorazgo is an institution sui
generis, and it cannot be said, simply because it possesses
similarity to the fideicomiso, and at times may be governed
by the same rules of law, that they are one and the same
thing.'(Dif. 18.)
As may be seen, these differences refer to the origin of the
institution, to the form of its constitution and to its enjoyment
on the part of the beneficiary. These are details which do not
divest the mayorazgo of its nature as afideicomiso, the
essence of which, in concise terms, is nothing more than the
confiding of a thing to one in order that he may preserve it
and deliver it to another (fidei tuae committo). This in
substance is what the mayorazgo is — the confiding of the
entailed properties to the first-born in order that he may
preserve them for the family and deliver them to his
successor.
To both institutions is applicable this definition of the
fidiecomiso, taken from Alcubilla (Diccionario de la
Administracion Española vol. 5, p. 635);
A form or manner of testamentary substitution by
which the testator or trustor charges the heir
(trustee) to deliver a certain aliquot portion of the
estate, or all thereof, to a third person who
receives the name of beneficiary (fideicomisario)
As every mayorazgo contains the essential elements of
a fideicomiso, many writers, among who are those whom we
cite in this decision, when they speak of the fideicomiso in
the sustitucion fideicomisaria, cannot avoid directing in the
sustitucion fideicomisaria, their attention to the mayorazgo,
and they compare the two institutions, seeking in them, not
the essential common elements which they recognize in
them, and which have led them, by association of ideas, to
think of the one when studying the other, but rather reasons
of distinction and difference because of their essential
generic similarity.
There were and there are still in the Spanish laws various
forms of trust derived from the customary law. Among such
trusts, one successive and perpetual one arose, vested with
the prerogative of primogeniture, and involving the principle
of masculinity. This is the mayorazgo.
Thus it is that Scaevola, in his work on the Civil Code,
volume 13, pages 501 and 502 says:
But up to this point we have been speaking of
temporary trusts. Now comes the turn of the
perpetual trusts, the most typical of which is the
institution know by the name of mayorazgo.
(Emphasis ours.)
And on page 505 of the same volume, speaking of the
tendency to perpetuate family Lustre and traditions, the
same writer makes the following statement:
From the nobles the tendency passed to the
commons and the mayorazgo became general.
What did themayorazgo come to be?
The Roman SUSTITUCION FIDEICOMISARIA as
to its form; as to its substance the continuation of
this substitution with the right of primigeniture and
the principle of masculinity. (Emphasis ours.)
In the "Enciclopedia Juridica Española," vol. 22 page 105,
the distinguish collaborator, Don Jose Buxade, in explaining
the mayorazgo, makes the following observation:
This succession, predetermined by the founder or
by the law, has some of the features of the
sustitucion fideicomisaria, some of the Germanic
principle of masculinity and some of feudal
primogeniture, as has been stated by Señor
Azcarate. (Emphasis ours.)
As we have observed in one of the citations which we have
inserted, the writer Palacios Rubis, and other mentioned by
Parlodorio, did not hesitate to say, as he observes: "Nihil
aliud esse majoratum quam fideicomissum quoddam in
perpetuum relictum cum, primogeniti praerogativa." (That
the mayorazgo is nothing but a certain trust left in perpetuity
and with the preogative of primogeniture.)
And this, in our opinion, is correct. The fideicomiso is the
genus and the mayorazgo the species. Not
everyfideicomiso is a mayorazgo, but every mayorazgo is
a fideicomiso.
Analyzing the entail under consideration, we may say that it
is a mayorazgo (from major natu, the first-born) in that it is a
right granted to each first-born to succeed to the entailed
properties in order to preserve them intact and perpetually in
the family, and deliver them in the order of succession to the
following first-born. And it is afideicomiso, in that it is a
charge of confidence impose upon the first-born usufructuary
possessor to preserve the entailed properties in order to
deliver in due time the possession and enjoyment thereof to
the succeeding first-born.
Leaving out of consideration for a moment its characteristic
of perpetuity, which as we have seen, does not alter its
nature, this successive appointment, made in the foundation
in the case at bar, to the enjoyment of the dominium futile
amounts to a call to the usufruct with which the second part
of article 787 of the Civil Code deals. We refer to it in order
that a better understanding may be had of the following
language of Manresa in one of his commentaries upon that
article, which is as follows:
But notwithstanding such authoritative opinions to
the contrary, it is our understanding that if the
usufruct, like other rights, may be the subject
matter of a substitution because the testator is not
bound to dispose jointly of the dominium directum
and the dominium utile, or in favor of a single
person, it is unquestionable that when he called
successively several instituted heirs to the
enjoyment of the dominium utile, the one first
called has the character of the trustee who is to
deliver that right to the beneficiary when the time
specified in the will arrives and that therefore it
constitutes a true fideicomiso. (Manresa, Spanish
Civil Code, vol. 6, p. 172, edition of 1921.)
(Empahsis ours.)
But counsel for defendants insist that this mayorazgo is not
a fideicomiso.
Not let us examine the grounds upon which this conclusion
rests.
They refer to the fact that both in the deed of foundation and
in the Royal Cedula by which it was conferred as well as in
the complainant in this action, in the stipulation of facts and
in plaintiffs brief, it is not called a fideicomiso but
a mayorazgo. But mayorazgo is the specific name, and if, as
we have said, the mayorazgo belongs to the genus
offideicomisos, because it is one of them, the mere fact that
the name fideicomiso was not given it is not equivalent to a
denial that it is such.
Defendants' counsel point out several differences between
the fideicomiso and the mayorazgo. We have already stated
that such differences do not make them mutually
incompatible, and do not deprive the mayorazgo of the trust
characteristic inherent in its nature.
The fact that the creation of fideicomiso is not subject to the
formalities required for mayorazgo; that the latter might be
founded by contract and are irrevocable in certain cases,
while fideicomiso must always be establishes by will and are
revocable; that in mayorazgo the trustee is always a relative
of the founder, whereas in the ordinaryfideicomiso it is not
necessary that he should be; that in the mayorazgo the one
who is called to the entail, as soon as his rights vests, may
take possession of the properties without the necessity of a
delivery, which is not the case with respect to
the fideicomiso—all these are differences in matters of detail
which do not change the legal condition of the property in
eight case inasmuch as their owner confides them to a
person for preservation and delivery to another, which is the
characteristic and fundamental aspect of
the mayorazgo which we must keep in much in order to
determine whether the plaintiffs are or are not entitled to the
relief sought by them in the complaint in this case.
The fact that in the mayorazgo there is a perpetual entail of
properties while in the ordinary fideicomiso it is not
temporary, does not support the theory of the defendant. We
have already observed that Scauvola refers to
themayorazgo does not deprive it of its nature as
a fideicomiso.
The fact that in the mayorazgos the possessor enjoys the
properties, whereas under ordinary fideicomiso he does not,
is no reason for concluding that the mayorazgo is not
a fideicomiso. This difference as to the rights of the trustee in
either case does not destroy the nature of the charge of
preserving the properties received in order to deliver them to
the beneficiary. We have already noted that in
the mayorazgo the possessor of the entail is a mere
usufructuary and this only during the period of his tenancy.
It is not correct to state, as is asserted in the reply
memorandum of the appellees, pages 2 and 3, that the first-
born or successive possessor of the mayorazgo are at one
and the same time trustees and beneficiaries. They are not
both at the same time or with respect to the same thing.
While he possesses the mayorazgo, the first-born is a
trustee, but he is not a beneficiary. If he enjoys the
properties he does not do so as either trustee or beneficiary
but as a usufructuary heir. During his possession of the
entail he is the trustee and the owner called to succeed him
in the enjoyment and possession of the entail is the
beneficiary or cestui que trust until his tenant begins, and
when it dies begin he ceases to be the cestui que trust and
becomes the trustee. Consequently, in themayorazgo at any
given moment the same distinction exists between the given
functions and rights of the interested parties as that which
there is in the fideicomiso.
It is asserted in said memorandum and in the same place
that in the mayorazgo the title to the properties is vested in
the first-born who possesses them, in view of his double
character of trustee and cestui que trust, while in
thefideicomiso the title is not vested in the cestui que trust,
but in the trustee. This requires some explanation. The first-
born possessor of the trust holds title to the properties as
trustee, not as cestui que trust; and enjoys the use of such
properties as usufructuary, not as cestui que trust; and this
title under which he holds is not definitely vested in him. It is
a trust title, that is to say, essentially and inseparably
conditioned upon the obligation of preserving the property for
the beneficiary. The same thing is true with respect to the
title which the trustee holds to the property in his care. The
fact is cited that the Disentailing law of October 11, 1820, in
enumerating the entails which it abolishes, uses the terms,
"mayorazgos," "fideicomiso" "patronatos," etc., which,
according to counsel for defendants, implies that
the mayorazgo and the fideicomiso are entails of different
kinds. And so, truly, they are. The mayorazgo and
the fideicomiso are different entails, but the mayorazgo does
not on that account cease to be a species of fideicomiso.
The purpose of the law was to abolish civil entails, and
therefore, as Gutierrez says in the passage cited in
defendants' brief, "it was necessary to enumerate these acts
which differ somewhat from one another, although in the
principal idea all are alike because they are special forms of
entail." (Vol. 2, "Codigos," p. 227.) (Emphasis ours.)
It is said in the brief of the defendants that it may be
admitted that the mayorazgo is a the mayorazgo — that is to say, the mayorazgo could have
sustitucion fideicomisariabut not that the mayorazgo is
a fideicomiso.
It cannot, however, be denied that the sustitucion
fideicomasaria is nothing more than the combination of the
substitution and the fideicomiso. This is so stated by the
distinguished author Sanchez Roman in the passage which
defendants cite in their brief (pages 35-40), and which is as
follows:
It was later, when from the combination of these
two institutions — the substitution and
the fideicomiso arose as a form completely distinct
from the other classes of substitutions known to
the law — the vulgar, thepupilar, and
the ejemplar — as a means of consolidating the
fortunes of families by preventing their dissolution
and ruin. From the fideicomiso was taken the
designation of various persons through whose
hands the estate was to pass applying the doctrine
of the substitution in the one called in the first
place was entitled to the use and enjoyment of the
hereditary properties with the obligation of
preserving them in order to transmit them at this
death to the one called in the second place as the
substitute of the first. The second tenant occupied
the same position as the first tenant with respect
to the person designated in the third place, and so
on successively. The in alienability of the
hereditary properties and a pre-established order
of succession, which were the logical
consequence and development of those
principles, constituted the elements of the entail
and it was sufficient to add to them, in the most
advanced period of their history, the Germanic
principle of masculinity and the feudal principle of
primogeniture, in order to establish
themayorazgos — true outgrowths of
the sustitucion fideicomisaria. (Vol. 6 [1st vol.], pp.
689, 690.) (Italics ours.)
The quoted paragraph contains a statement made by other
writers, which is that the mayorazgo is an outgrowth of
the sustitucion fideicomisaria. If the latter, according to the
cited passage, is in turn a combination of thesustitucion and
of the fideicomiso, it follows that there is a fideicomiso in
the sustitucion fideicomisaria, just as there is in the
outgrowth of the latter, which is the mayorazgo, unless the
fideicomiso disappeared when it was combined with
the sustitucion and converted into the sustitucion
fideicomisaria, and also disappeared when
themayorazgo was developed from the latter institution. But
such is not the case, and we have already seen that
themayorazgo is in itself a fideicomiso, that it is one of its
species.
We are unable to find any sufficient reason for the
abandonment of the conclusion that the mayorazgo in
question is in its essence a fideicomiso.
Now, within this foundation a special trust was established,
consisting of the charge laid upon the first-born possessor to
set apart the fifth part of the net revenue of the properties
each year, and to distribute it among the eight younger
children of the founder and other specified relatives.
This special trust is not an essential part of
existed just as well without it. It constitutes one of the
provisions, one of the conditions imposed upon the first-born
possessor of a kind which is frequent in such cases and not
prohibited by the law. Gutierrez in the cited volume of his
work, page 203, says:
The mayorazgo permits fair conditions; it would be
difficult to determine, among the vast number
which have been invested by the capricious will of
the founders, which are those which merit this
consideration and what are their effects.
Its legality and fairness cannot be doubted,
inasmuch as this mayorazgo, including the
provision under consideration with respect to the
fifth of the revenue, was solemnly approved and
confirmed by the King of Spain, who, in
his Cedula issued for that purpose, inserted
together with the foundation instrument at the
beginning of this decision, says in part:
* * * I do approve the establishment of the
mayorazgo founded by your above-mentioned
father, Don Antonio Tuason, and I hereby declare
it to be in effect from this moment henceforth
forever, and I do ratify and confirm henceforth the
validity of the same in the terms in which it was
established with all the clauses, conditions,
penalties and restitutions provided for in the body
of the said document . . . . (Emphasis ours.)
This special charge upon the fifth of the revenue constitutes
the family trust to which Scaevola refers in his cited work on
the Civil Code, volume 13, pages 697, 698, wherein he says:
Family trusts. — The Act of 1820 distinguishes
between mayorazgos and fideicomisos. In the
former there is a successive succession of certain
persons, a transmission from one to another; in
the fideicomiso on the contrary there is only
a corpus of properties, the revenues from which
are distributed annually, or at longer or shorter
periods among groups of persons. When this
group is composed of relatives of the founder, the
trust is called a family trust. (Emphasis ours.)
It is true that the special charge which constitutes the family
trust established in the entail now under consideration, is
different from the mayorazgo upon which it is based, and as
Scaevola well says, the Act of 1820 distinguishes one from
the other by different precepts, applicable to each, as we
shall see hereafter. And they are different from one another
even though in the essence both are trusts. Applying to our
case what is said by Scaevola in the citation we have just
transcribed, it follows that in the mayorazgo, properly so
called, the usufructuaries, who are the first-born possessors,
succeed on another in the usufruct of the properties, and
transmit them from one to the other; that is to say, as
Scaevola says, "there is a successive succession of certain
persons, a transmission from one to another;" and in the
family trust there is the corpus of the property of the ential, a
fifth of the revenue of which is distributed annually among
the relatives of the founder, which is what Scaevola says in
the cited passage. But in the passage he says: "In the trust
(fideicomiso) on the contrary there is only a corpus of
properties," etc. He says "there is only" in contradistinction to
what there is in the mayorazgo, namely a succession of
usufructuaries and the transmission of the usufruct from one
to the other; while in the family trust there is no such
succession of usufructuaries or such transmission of the
usufruct, but only a corpus of properties, a fifth of the
revenue of which is distributed each year among the
relatives of the founder.
It is true that in this family trust there is a succession of
beneficiaries who are the first-born sons; but this succession
is inevitable in every perpetual family trust, because man's
life is limited. And certainly the existence of such an
indefinite succession is to be anticipated in a perpetual
family trust, such as the one under consideration, as
otherwise it would not have been one of the entails
abolished by the Act of October 11, 1820.
But counsel for defendants observes that
the mayorazgo having been established upon all the entailed
properties, there cannot be a distinct and separate trust with
respect to a part of the revenue. He adds that there would
have been such a separate trust if the founder had
designated certain properties which would constitute a fourth
part (he probably meant to say four-fifths) and
the mayorazgo had been established upon this and that the
family trust had been established upon the remaining fifth.
We find no force in this suggestion. If the founder had
designated certain properties constituting a fifth of the
entailed estate, in order that the revenue of that fifth might
be distributed among his eight younger children and other
relatives, he could not have been sure whether the revenues
of the fifth of the entailed properties would constitute a fifth of
the revenue of all such properties. His clearly expressed
intention, as shown by the deed of foundation, is that there
shall be distributed not the revenue from one-fifth of the
properties, but a fifth of the revenue of all the properties
mentioned.
It is our opinion that such a charge with respect to the
distribution of the fifth of the revenue constitutes a family
trust such as that described by the learned writer Scaevola
in the citation above set forth.
Therefore, with respect to the question raised by the parties
concerning the nature of the foundation which is the subject-
matter of this action, our conclusions are as follows:
The first-born possessor of this mayorazgo is a mere
usufructuary of the entailed properties.
This mayorazgo is, in its essence, a trust.
Annexed to this trust there is a special institution which
constitutes a family trust.
With respect to the parties interested in these institutions so
constituted by the present foundation, we hold that in
the mayorazgo as such, from the point of view of its nature
as a trust, the trustor is the founder; the trustee is
successively each first-born possessor of the entail, from the
time he possesses and while he possesses it; the
beneficiary or cestui que trust, in the first-born successor
called to possess the entail, and prior to the commencement
of his possession; for as soon as his possession
commences, he becomes the trustee and the following first-
born becomes the beneficiary.
In the family trust instituted within this mayorazgo, and upon
the fifth of the revenue, the trustor is the founder himself; the
trustee is also successively each first-born possessor of the
entail from the time he possesses it and while he possesses
it; and the beneficiaries, or cestuis que trustent, are the eight
younger children of the founder and other relatives
designated in the deed of foundation.
We deem it to be advisable to state, for the purpose of
avoiding confusion, that we have adopted here the
nomenclature of the Civil Code in force (arts. 783, 784) in
which the "fideicomisario" is the beneficiary (cestui que
trust), as distinguished from the meaning with which this
word "fideicomisario" has been used in the Spanish
translation of sections 582-593, and 778 of the Code of Civil
Procedure, in which the idea is conveyed that the
"fideicomisario" is the person charged with the trust — that
is, the "trustee" whom we designate as the "fiduciario."
DISENTAILING LAW; CONDUCT OF THE
PARTIES; ITS EFFECTS
We have stated that on October 11, 1820, the Civil
Disentailing Law was published in Spain, and that this Act
was extended to the Philippines of the 1st of March, 1864,
by Royal Decree dated October 31, 1863.
Articles 1, 2, 3, 4, 7 and 10 of the Statute of October 11,
1820, which contain the precepts pertinent to the matters
here in controversy, read as follows:
ARTICLE 1. All mayorazgos, fideicomisos,
patronatos, and every other species of entail of
property, real personal, mixed or semoviente,
censos, juros or of any other nature, are hereby
abolished, and the properties entailed are
henceforth restored to the class of absolutely free
properties.
ART. 2. The present possessors of the entails
abolished by the preceding article may at once
freely dispose of one-half of the properties of
which they are composed; and after their death
the other half shall pass to the persons who would
have been entitled to succeed immediately to
the mayorazgo if it had subsisted, so that he may
also freely dispose of it as the owner. This one-
half reserved to the immediate successor shall
never be liable for debts contracted or which may
be contracted by the present possessor.
ART. 3. For the purpose of carrying into effect the
provisions of the preceding article, whenever the
present possessor may desire to alienate all or
part of his one-half of the properties heretofore
entailed, a formal appraisal and division of all of
them shall be made with strict equality and with
the intervention of the immediate successor; and if
the latter should be unknown, or should be subject
to the patria potestas of the present possessor,
the Syndic Procurator of the town where the
possessor resides shall intervene in his name,
without requiring for this any fees or emoluments
whatever. If these requisites are not complied with,
the contract of alienation made shall be void.
ART. 4. As to family trust, the revenues of which
are distributed among the relatives of the founder,
although they be of different lines, the appraisal
and distribution of the properties of the trust shall
be made at once among the present recipients of
the revenues in proportion to that which they are
receiving, and with the intervention of all of them;
and each, as to the part of the properties which is
allotted to him, may freely dispose of one-half,
reserving the other half to the immediate
successor in order that he may do likewise, in
strict accordance with the provisions of article 3.
ART. 5. With respect to elective mayorazgos,
trusts or patronatos, when the election is
absolutely free, the present possessors may
dispose as owners of all the properties; but if the
election must necessarily fall upon a member of
some particular family, or community, the
possessors shall dispose of only one-half and
shall reserve the other one-half to the end that the
successor who may be elected may do the same;
the appraisal and division prescribed by article 3
shall be made with the intervention of the Syndic
Procurator.
xxx xxx xxx
ART. 7. The temporary, as well as the perpetual,
charges to which all the properties of the entail are
subject in general, without special mortgage, shall
be allotted with proportionate equality to the
properties distributed and partitioned, as herein
provided, unless the interested parties by common
agreement, shall prefer some other method.
xxx xxx xxx
ART. 10. Be it likewise understood that he
foregoing provisions shall be without prejudice to
the allowances for support (alimentos) or annuities
(pensiones) which the present possessors are
required to pay to their mothers, widows, brothers,
the immediate successor, or other persons, in
accordance with the foundations or private
agreements, or judicial decision. The properties
heretofore entailed, although they may pass as
free to other owners, shall remain subject to the
payment of such allowances for support
(alimentos) or annuities (pensiones) during the
lifetime of those who are now receiving them, or
while they retain the right to receive them, unless
the recipients of such allowances for support are
immediate successors, in which case they shall
cease to enjoy them as soon as the present
possessors die. Thereafter the obligations now
existing to pay such annuities (pensiones) and
allowances for support (alimentos) shall cease, but
it is declared that if the present possessors do not
invest in such allowances for support (alimentos)
and annuities (pensiones) during the lifetime of
those who are now receiving them, or while they
retain the right to receive them, unless the
recipients of such allowances for support are
immediate successors, in which case they shall
cease to enjoy them as soon as the present
possessors die. Thereafter the obligations now
existing to pay such annuities (pensiones) and
allowances for support (alimentos) shall cease, but
it is declared that if the present possessors do not
invest in such allowances for support (alimentos)
and annuities (pensiones), a net sixth part of the
revenues of the mayorazgo, they shall be obliged
to contribute up to this extent for the purpose of
endowing their sisters and aiding their brothers in
proportion to their number and needs; and a like
obligation shall rest upon the immediate
successors in respect to the one-half of the
properties reserved to them.
xxx xxx xxx
ART. 14. No one hereafter, even though it be by
way of betterment or upon any other title or
pretext, shall found any mayorazgo, fideicomiso,
patronato, capellania, obra pia or any entail
whatsoever upon any kind of properties or rights,
nor prohibit, directly or indirectly, their alienation.
Neither shall any one entail bank stock or other
foreign funds. (Vol. 6, "Legislacion Ultramarina,"
by Rodriguez San Pedro, page 72.)
Under the provisions of article 2 above set forth the
possessors of mayorazgos from the time the Act took effect
were authorized to dispose freely of one-half of the entailed
properties, the other one-half being reserved in absolute
ownership to the successor to the entail.
And in accordance with the provisions of article 4 of the
same statute, the properties of the family trust were required
to be distributed among the recipients of revenues in
proportion to their respective participations.
Applying these articles to the foundation which is the object
of the present case, and considering as we do, that the
charge relating to the distribution of one-fifth of the revenue
constitutes a family trust, it follows that for the purpose of
carrying out the provisions contained in the entail under
consideration, without a breach of any of its conditions, it
must be kept in mind that the participation in the fifth of the
revenues, by virtue of article 4 above-mentioned, and
proportionately among the recipients, became converted into
a participation in the ownership of one-fifth of the properties;
and inasmuch as this fifth must be taken from the properties
of the mayorazgo, it is evident that the provisions contained
in article 2 of the law with respect to the power of the first-
born possessor to freely dispose of one-half and to reserve
the other one-half to his successor, must become operative
in our case, not upon all the properties of the entail, because
one-fifth is assigned by article 4 above-mentioned to the
recipients of the fifth of the revenue, and their successors,
but upon the remainder, namely the four-fifths part of said
properties.
Counsel for defendants, insisting in their opinion that this
charge concerning the distribution of the fifth of the revenues
among the relatives of the founder is not a family trust,
denies the applicability of article 4 of the Disentailing Law,
and affirms that such distribution of the fifth of the revenues
relates to the charges, allowances for support (alimentos)
and annuities (pensiones) to which articles 7 and 10 of that
statute apply.
Having arrived at the conclusion that this distribution of the
fifth of the revenue is a family trust, it appears to us that the
application of article 4 of the Disentailing Law is inevitable as
this article expressly and unequivocally refers to "family
trusts, the revenues of which are distributed among the
relatives of the founder."
With respect to the charges to which article 7 refers, counsel
for defendants insist that these are included in the pensions
mentioned in article 10 and, for the purpose of supporting
this assertion, cite Gutierrez' Commentary upon article 7. To
this counsel for plaintiff reply with an observation which, in
our judgment, successfully refutes defendants' proposition.
This is what the plaintiffs say in their additional brief, pages 5
and 6:
In his commentary on article 7 Gutierrez says, as
stated in the brief of our opponents, that "this
provision was lacking in the draft, for article 5, with
which it is most naturally connected, speaks of
allowances for support and pensiones
alimenticias, which, in the existing law, are
covered by a special article." From this citation we
draw the conclusion that article 7 did not exist in
the original draft of the law; but on the other hand,
the provisions of article 10 did exist in the original
draft, and it became necessary to increase it, in
the bill article 10 and this does not include what is
included in article 7.
This fifth of the revenue, the distribution of which is required
with respect to the family trust, cannot be the same as the
allowances for support or pensiones alimenticias, to which
article 10 relates, for, as observed by counsel for plaintiffs,
the younger children, among whom in the first place this fifth
of the revenue was to be distributed, had already received
their respective legitimes before the mayorazgo was
founded. At the beginning of the deed of foundation and in
its first clause we find that the founder says, among other
things:
* * * and desiring, on the other hand, to secure in
part the permanence of my estate, without
diminishing the legitimates of my other children . . .
.
xxx xxx xxx
Having taken stock and inventory of all the
property of which I am now possessed, in cash,
real estate, jewelry and other things, I found
myself to be the possessor of an estate of the
value of one hundred and thirty-five thousand
pesos, which after having deducted the third and
the fifth, left me a remainder ofseventy-two
thousand pesos which I divided among my eight
children, there corresponding to each of them the
sum of nine thousand pesos which sum was
actually delivered to each and very one of them,
as is shown by documents which I have in my
possession; and the third and the remainder of the
fifth I hereby devote to the aforesaid entail. . . .
(Parenthesis and Emphasis ours.)
At all events article 10 refers to allowances for support or
pensions in general; and even assuming for the moment that
the fifth of the revenues to be distributed among the younger
children of the founder and his other relatives should also be
considered as an allowance for support or a pension, this
article would not be applicable because there is a special
provision in article 4 which relates specifically to family trust,
the revenues of which are distributed among the relatives of
the founder. The legal maxim is: specialia generalibus
derogant.
The same thing may be said with respect to article 7 which
refers to "the temporary, as well as the perpetual, charges to
which all the properties of the entail are subject in general."
Considering this distribution of the fifth of the revenue as
a charge in the broadest meaning of this word, we should
not apply article 7, which deals with charges in general,
because there is another provision in article 4 which relates
specifically to the distribution of revenues among the
relatives of the founder.
Now, in accordance with the allegations contained in
paragraph 5 of the first special defense (bill of exceptions, p.
45), it was Don Jose Severo Tuason who possessed
the mayorazgo on the 1st day of March, 1864, on which date
the Disentailing Law, to which reference has been made,
became operative in the Philippine Islands.
By virtue of the provisions of article 2 of that law, Don Jose
Severo Tuason, the then possessor of the entail, might on
that date have freely disposed of one-half of the four-fifths of
the properties of the mayorazgo.
An in accordance with the provisions of article 4, he should
have made an appraisal and distribution of the fifth of the
properties among the recipients of the revenues in
proportion to their respective participations, and each might
have freely disposed of one-half of his participation,
reserving the other one-half for his immediate successor.
Nothing of this kind was done, however. Don Jose Severo
Tuason continued to regard the mayorazgo as subsisting
and the properties as entailed. Thus it was that in his will,
executed February 1, 1874, he says, among other things:
Item. I declare that when I married my said wife
my said wife my estate consisted of the sum of
$144,974.28, deducting the value of the entail I
possess. (Clause 3, folio 2, Exhibit 1.)
Item. I declare that among my properties is
included the entail which I have been enjoying and
which I inherited from my father, whom I trust is in
glory on high, and which will pass in the same
order of its institution to my first born son, Don
Jose Victoriano, subject to the provisions of law
now in force in the matter. (Clause 6, ditto, folio 3.)
(Emphasis ours.)
This testator, as we have stated in the beginning, died on
February 3, 1874.
His heirs and successors continued to respect
the mayorazgo, as may be seen in the deed of partition in
the proceedings connected with the inventory, liquidation
accounts and distribution of the estate (Exhibit 3), judicially
approved January 12, 1876, wherein it is said:
The $48,949.11 which is the value of the entailed
properties which are to pass intact to the
immediate successor of the mayorazgo. (Folio 2,
Exhibit 5.)
The first-born successor, Don Jose Victoriano Tuason, as
stated above, died January 23, 1878, at the age of 13 years.
(Paragraph 6, first special defense.)
More than eighteen years afterward, on the 7th of August,
1896, the record of the partition above-mentioned was
registered.
It is also a proven fact, as stated at the beginning, that in the
books of the defendants corresponding to the time which has
transpired since the year 1904, and up to the year 1922,
entries appear relating to expenses and receipts of
the mayorazgo, participations in the fifth of the products,
purchases of rights to said fifth of the products, and fees for
preparing deeds of assignment of the said fifth of the
products. That is to say, the parties interested in this
foundation kept it in force in its entirely from March 1, 1864,
on which date the Disentailing Law of October 11, 1820,
came into effect in these Islands at least up to the end of the
year 1922, one year, seven months and some days before
the commencement of the present action.
We consider it opportune to cite at this point an opinion of
the Supreme Court of Spain concerning the status of
properties which formerly belonged to a mayorazgo but
which are allowed to remain undivided, in which it is said:
2. That the properties which belonged to
a mayorazgo preserve their character as entailed
for the purposes of the partition, up to the time of
delivery to the heir of the possessor and to the
immediate successor of the half which is due them
respectively. (Judgment of the Supreme Court of
Spain, Oct. 29, 1857.)
Although this doctrine does not refer expressly to family
trusts, we regard it as applicable to the family trust annexed
to the mayorazgo under consideration, as the same reason
exists therefor. Ubi eadem ratio ibi eadem juris dispositio.
Counsel for defendants allege that the properties of this
foundation passed into the hands of the heir, Jose Victoriano
Tuason, completely free, one-half by testamentary
inheritance and the other half by virtue of article 2 of the
Disentailing Law. This, however, was not the will of the
testator, Don Jose Severo Tuason, nor the will of his
successors, all of whom respected the mayorazgo and held
it as subsisting de facto. In no event could the properties
pass into the hands of the heir Jose Victoriano Tuason
completely free. It was necessary to preserve them intact
until they were appraised and the fifth part thereof had been
segregated for distribution among the recipients of the
revenues and their immediate successors, in accordance
with the provisions of article 4 of the statute.
It is a fact that the trust subsisted and still subsists. The
successive possessors of the entail have preserved and
preserve the properties of the mayorazgo respecting and
distributing the fifth of the revenue among the descendants
of the younger children of the founder.
But the entail could not and cannot continue perpetually. Its
abolition was decreed by the statute as of the 1st day of
March, 1864. Its perpetual survival would be contrary, not
only to the Disentailing Law of October 11, 1820, but also
the Civil Code in force which, under articles 781 and 785,
paragraph 2, positively prohibits perpetual entails.
If up to the present time the entail in question subsists, this
has been because the interested parties have been
maintaining it without proceeding to the appraisal and
distribution of the entailed properties, as required by articles
2 and 4 of the Disentailing Law; and in accordance with the
doctrine announced by the Supreme Court of Spain on
October 29, 1857, above cited, the properties of
this mayorazgo, preserved de facto by the interested parties
as entailed, legally retain this character for the purposes of
their partition, which must be effected in accordance with the
statute of October 11, 1920.
From what has been said it follows that since March 1, 1864,
the date upon which the said Disentailing Law came into
force in the Philippine Islands, the successive possessors of
the properties of this mayorazgo constituted themselves
trustees, charged with the administration and preservation of
the said properties and the distribution of the fifth of the
revenue among the descendants of the younger children of
the founder. Consequently, after the entail was abolished,
one-half of the four-fifths of the properties of
the mayorazgo continued subject to the trust in favor of its
beneficiaries, the heirs of Jose Victoriano Tuason, who was
the one called to succeed immediately to the mayorazgo on
the date of its disentailment (article 2, Statute), and the fifth
of the said properties in favor of the beneficiaries, the
recipients of the fifth of the revenue in accordance with the
foundation.
Summing up the effects produced with respect to
this mayorazgo by the Disentailing Law on the one hand,
and the conduct of the interested parties on the other, we
may say first, that the trust of the naked ownership instituted
in favor of the descendants of the founder indefinitely was
abolished, in consequence of the disentailment; and second,
that the trust of the usufruct of the properties became
converted into a trust of the properties themselves, the
beneficiaries being the same, but as owners; that is to say,
the first-born successor as to one-half of four-fifths of the
said properties, and the descendants of the younger children
of the founder with respect to the remaining fifth.
In this case we are only concerned with the fifth of the
properties which plaintiffs claim as descendants of four of
the eight younger children of the founder.
Hereinafter we shall determine the persons entitled to
participate in the fifth of the properties of this foundation and
to what extent.
LEGAL OBSTACLES ALLEGED
In addition to the arguments mentioned heretofore, counsel
for defendants interpose as obstacles to the action of
plaintiffs the registration of the title to the properties of
the mayorazgo in favor of the defendants, mentioned in
paragraph 11 of the first special defense, under Act No. 496,
and the prescription of this action. The defendants, Doña
Paz Tuason de Gonzalez, Doña Consuelo Tuason de
Quimson, Don Juan Tuason and Doña Albina Tuason
interpose as a defense to this action the contention that the
plaintiffs filed no claim whatever in the proceedings had
upon the testamentary estate of Don Juan Jose Tuason de
la Paz, the father of the said defendants, which testamentary
proceedings were finally disposed of and filed June 25,
1920.
If, as we have found and decided, the successive
possessors of the properties of this mayorazgo were and
have been mere trustees of the said properties, holding them
in trust for the benefit of the beneficiaries, part of whom are
the recipients of the fifth of the revenues, and their
descendants, the registration of the title to said properties
under Act No. 496 in favor of the said defendants must be
deemed to have been effected for the benefit of the
beneficiaries of said properties, part of whom are the present
plaintiffs. The doctrine established by this court in the case
of Severino vs. Severino (44 Phil., 343), is applicable to this
feature of the case.
Although the plaintiffs endeavored to demonstrate that the
said defendants registered the title by fraud, it is our opinion
that the alleged fraud has not been proven in this action.
Nevertheless, the existence of fraud is unnecessary to
warrant the declaration that registration of the title under Act
No. 496 is not a legal obstacle to this action brought by
plaintiffs, and the adjudication in favor of those among them
who are entitled thereto of the portion pertaining to them of
the properties so registered. It was said in the case of Gilbert
vs. Hewetson (79 Minn., 326), cited with approval in the case
of Severino vs. Severino, supra:
'A receiver, trustee attorney, agent, or any other
person occupying fiduciary relations respecting
property or persons, is utterly disabled from
acquiring for his own benefit the property
committed to his custody for management. This
rule is entirely independent of the fact whether any
fraud has intervened. No fraud in fact need be
shown, and no excuse will be heard from the
trustee.' (Emphasis ours.)
With respect to the plea of prescription, counsel for
defendants contend that inasmuch as plaintiffs, prior to the
filing of the present complaint, had made no effort to enforce
their rights since the 1st day of March, 1864, their action is
barred. But from the records it appears that up to the year
1922 the defendants have been recognizing in the entries in
their books, and in deeds, such as Exhibits 6 and 7, signed
by Don Augusto Tuason de la Paz, as grantee, the rights of
the descendants of the younger children of the founder to
the fifth of the revenue, and therefore the trust which this
charge implies; furthermore, said defendants made
payments on account of the fifth of the revenue. These acts
of recognition and payments, made during the said period of
time, prevent the operation of prescription. (Section 50,
Code of Civil Procedure.)
Furthermore, this being a case which deals with a trust
which subsisted from the time of its foundation and by virtue
thereof up to March 1, 1864, and thereafter down to the
present time by the express will of the present parties, the
defense of prescription cannot be entertained. By virtue of
the said trust the possession of the said defendants could
not be regarded as a basis for an acquisitive prescription in
their favor against the plaintiffs because such possession
has not been nor is it under claim of ownership, but a title
held in the name and on behalf of the beneficiaries, some of
whom are the plaintiffs in general. For this reason the
defense of prescription cannot be enforced between the
trustee and the beneficiaries while the trust relations
continue, as was impliedly held in the case of
the Government of the Philippine Islands vs. Abadilla (46
Phil., 642).
It is alleged by counsel for the defendants that in accordance
with the stipulation of facts none of the plaintiffs, nor their
predecessors, with the exception of those mentioned in
paragraph 2 of the counterclaim, received any pensions
whatever as a charge against the revenues of the property of
the entail for the ten years prior to the commencement of this
action, and that for this reason the action has prescribed. We
have already stated that with respect to trust, such as the
one here in question, the defense of prescription cannot be
maintained. From the 1st of March, 1864, the right of the
recipients of the fifth of the revenue, and their descendants,
was not and is not limited to the receipt of the fifth of the
revenue, but, as we have said, includes a participation in the
ownership of one-fifth of the properties of the mayorazgo,
and this right, by reason of the subsisting trust, has not
prescribed and is imprescriptible.
It is finally contended by the defendant heirs of the late Don
Jose Tuason y de la Paz that the plaintiffs did not file any
claim whatever in the proceedings had upon the
testamentary estate of the said deceased, which said
proceedings have been now finally ended. As the properties
here in question constitute a trust estate such proceedings
cannot affect them, at least as to a fifth part, because such
properties were not and could not be the property of the said
testator, who therefore could not legally transmit them to his
heirs. If the latter have already entered upon the enjoyment
of their various respective portions and have acquired a
possession adverse to the rights of the plaintiffs, this
adverse possession cannot have legally commenced before
the 19th of July, 1919, when the court approved the partition
of the properties of the said testamentary estate (paragraph
4, fourth special defense). And even with respect to
prescription, the time which has transpired between the 19th
of July, 1919, and the 22d of August, 1923, when this action
was commenced, is merely a little over four years, an
insufficient time for the acquisitive prescription of real
property.
Consequently, the contention of the defendants in their
special defenses are not sufficient to destroy plaintiffs' action
or to prevent the exercise thereof.
PERSONS ENTITLED TO THE REMEDY
The recipients of the fifth of the revenues are indicated in the
sixth clause of the instrument of foundation, the text of which
we again transcribe.
It shall be his duty to set apart one-fifth of the net
revenue derived from the entail each year, and
that one-fifth part shall be divided into eight parts,
giving one to each of my eight children, and in
their absence, to my grandchildren, but upon the
 understanding that if one or more of my children
should die without succession, the part belonging
to them shall be distributed among my
grandchildren and other descendants of mine
according to their needs and as prudence may
dictate to him, so that, when the time arrives that
none of my children or grandchildren are alive, it
shall then be always understood that said fifth part
shall be applied to all those of my descendants
who are poor, the apportionment to be made by
him prudently according to their needs and
therefore the possessor of the entail is hereby
charged to discharge this duty with conscientious
scruple.
One of the issues between the parties is whether plaintiffs
are or are not included in the word "grandchildren" (nietos)
employed in the clause which has just been transcribed.
The precedent of the word "grandchildren" (nietos) is the
Latin word nepos, which is defined in the Latin-Spanish
Etymological Dictionary, by Raimundo de Miguel, as follows:
Nepos, otis . . . Cic. Nieto; . . . Nepos ex filia, Cic.
nieto (son of the daughter), . . . Nepotes (plural)
Virgil, posterity, descendants.
As we have observed in this explanation, in order to give the
word "nepos" the meaning of "the son of the daughter,"
Cicero added to it the explanatory phrase "ex filia."
The technical meaning of the word in the Roman Law
coincides with this literal acceptation, as may be observed in
Title 19, Book 2 of the Institutions of Justiniani (D. Justiniani
Institutionum, by Gomez de la Serna, vol. 1, p. 595, 6th
edition), where it is said: "Sui anten et necessarii haeredes
sunt, veluti filius filiave, NEPOS NEPTISVE EX FILIO," etc.
Thus we see that in order to express the idea that the word
"nieto" or "nieta ("nepos neptisve") refers to a "son or a
daughter of a son," it was necessary to add the explanatory
phrase "ex filio" (of the son). Consequently, without this
explanatory phrase the meaning of the word "nepos"
(grandchild) would be, in the broad acceptation, that which
was given it by Virgil, namely; posterity, descendants.
This broad legal acceptation was carried into the Spanish
language when the words "nepos" and "nepotis" were
hispanicized by being transformed into the word "nieto."
Therefore, Alcubilla, in defining this word in his work,
"Diccionario de la Legislacion Española," (vol. 8, p. 373)
says:
Nieto (grandson). The son of the son. Used with
respect to the grandfather. The term is also used
by extension to include the word descendant in a
given line to the third, fourth and successive
generations.
It is true that in the clause of the instrument which we have
been considering, the word "descendants" is also employed.
But this word, taking into consideration the provisions of the
deed of foundation must be understood as referring to the
descendants of the first born son who was the possessor of
the mayorazgo.
As may be inferred from the provisions of this foundation,
considered as a whole, the intention of the founder was to
give to his descendants the usufruct of the properties of
the mayorazgo, four-fifths to the first-born possessor and his
successors, and one-fifth to the eight younger children and
their successors.
We can see no sufficient reason for restricting here the
meaning of the word "nietos" (grandchildren) to sons of sons
alone. From the instrument of foundation as a whole it does
not appear that such was the intention of the founder. We
can see no reason why he should have limited the
enjoyment of the fifth of the revenue to his eightchildren and
to the children of the latter without extending it to their
subsequent descendants, when, in dealing with the four-
fifths of the revenue he extended the enjoyment thereof not
only to his first-born son, or to his grandson, the son and
successor of the former, but also to subsequent first-born
children.
We do not find in the instrument of foundation, or elsewhere,
any reason whatever for believing that in addition to the
striking inequality with respect to the apportionment of the
usufruct (four-fifths for one child and one-fifth for eight
children) it was the purpose of the founder to still further limit
the grant to his eight children to their children as to the
receipt of the fifth of the revenue, when in the instrument
itself (seventeenth clause) the founder provided that in case
the male line of the descendants of his first-born son, Don
Vicente Dolores Tuason, should become extinct,
the mayorazgo should then revert to the eldest son of his
deceased son, Don Santos Tuason (who is one of the
younger children), and that following the same order the
descendants of his other male children (the other younger
children) should take by priority of birth, and that in the event
of the absence of male heirs of the male line, the heirs of the
female line should succeed, and failing these, the
possession of the mayorazgo by order of birth should
devolve upon the descendants of his children (his younger
children).
If the descendants of the younger children, subsequent to
the grandchildren of the founder, are granted under certain
circumstances the right to possess the mayorazgo itself, with
all its properties, we do not see how it can be said that these
descendants, subsequent to grandchildren, the sons of sons,
were prohibited from receiving a fifth of the revenues of said
properties.
It is our understanding that the intention of the founder was
not to restrict the grant of the usufruct of the fifth of the
revenue by limiting it to a certain number of generations of
the younger children, but that he intended to extend it to all
of the descendants of the latter. If this is so we should apply
to the case the rule of law of the Partidas (Rule 28, Title 34,
7th Partida), which says: "Privilegia recipiunt largum
interpretationem voluntati consonan concedentis."
(Privileges are to be interpreted with liberality in accordance
with the will of him who grants them.)
Furthermore, that the present plaintiffs are entitled to receive
the fifth of the revenues has been repeatedly recognized by
the defendants when they purchased, in 1905, from Don
Jose Rocha y Ruiz, and in 1916 from Doña Remedios
Aragon y Rocha their respective participations in the fifth of
the revenue, according to paragraph 16 of the stipulation of
facts, and when in the years 1917 to 1921 the said
defendants delivered to Don Antonio Maria Barretto y
Rocha, and to Don Santiago, Don Julio and Don Andres
Rocha y Ruiz Delgado, and their sister, Doña Rosario; and
in the years 1917 to 1922 to Doña Isabel, Doña Enriqueta,
Doña Carmen, Don Antonio, Don Alfredo and Don Clodoaldo
Rocha y Pereyna, Don Francisco Beech y Rojo, Don Ciriaco,
Don Cayetano, Don Pablo Leon and Don Tomas Tuason,
and to the minors Doña Consuelo, Don Juan, Doña Rosario
and Doña Carmen Tuason, and to Doña Victoria Rufina,
Doña Ana Consolacion Tuason and Doña Asuncion Romana
Tuason widow of Caballero, their respective participations in
the fifth of the revenue, as appears from the cross-complaint
of the defendants, admitted in paragraph 8 of the stipulation
of facts.
And it appears that the said Don Jose Rocha y Ruiz was the
son of Don Lorenzo Rocha, a grandson, in turn, of Doña
Gregoria N. Tuason (Exhibit 6 and paragraphs 2 and 16 of
the stipulation of facts); that Doña Remedios Aragon y
Rocha is a relative of the founder (Exhibit 7, admitted in
paragraph 16 of the stipulation of facts); and that the said
recipients of the fifth of the revenue from the year 1917 to
1921 and from the year 1917 to 1922, are all descendants of
grandchildren of the younger children of the founder.
(Paragraph 2 to 20, admitted in paragraph 1 of the
stipulation of facts.)
But even supposing for a moment that the word "nietos"
(grandchildren) used in the instrument of foundation now
before us, did not include these plaintiffs, we must keep in
mind that the Disentailing Law of October 11, 1820, when it
became operative in the Philippines, on March 1, 1864,
created and adjudicated in favor of the then recipients of the
fifth of the revenue of this mayorazgo the right of ownership
of one-half of the fifth of these properties under article 4 of
the said Disentailing Law, and vested the ownership of the
other one-half in their immediate successors.
Consequently, even supposing that the receipt of such fifth
of the revenue were limited to grandsons, the sons of sons
of the younger children of the founder, and supposing also
that the recipients of the said fifth of the revenues on March
1, 1864, were grandchildren, sons of sons of the younger
children of the founder, that is, the last recipients according
to the restrictive hypothesis, notwithstanding all this, the law,
when giving to these recipients of the revenue a fifth of the
property, reserved one-half therefor for the
immediate successors, who are the subsequent
descendants of said grandchildren, sons of sons of the
younger children of the founder.
And such recipients of the fifth, whoever they may have
been on March 1, 1864 — for they have not been identified
in the record — did not dispose of the participations which
the law granted them in and to the fifth of the properties of
this mayorazgo, and at their death their said participations in
the property passed by operation of law to their heirs. On the
other hand, their immediate successors — the record does
not show who they were — in whose favor the ownership of
the other one-half of the fifth of the properties was reserved,
did not dispose of their participation, which, when said
immediate successors died, also passed to their heirs by
operation of law.
And according to the facts admitted in this proceeding, the
plaintiffs must be and are such heirs, both of the then
recipients and of their immediate successors, for they are
the descendants in direct line of both of them because they
are descendants of the younger children of the founder.
The plaintiffs consequently are entitled to participate in the
fifth of the properties of this mayorazgo, whether they be
considered or not as included in the word "grandchildren"
employed in the instrument of foundation. In the first case,
because they are descendants in direct line of four of the
younger children, and in the second place because they are
the descendants of the recipients of the fifth of the revenue
on March 1, 1864, and the immediate successors of the
latter.
Passing to the amount of the participation which is due them
respectively, for the purpose of determining this point we
must have regard to the intention of the founder, as it is
expressed in the instrument creating the mayorazgo. It was
his will that the fifth of the revenue should be divided into
eight parts, and that to each of this children, other than his
first-born, one part should be given. Upon the death of each
of these children, by virtue of the provisions of the instrument
of foundation, and by operation of law, their right to an eight
part of the revenue which they received during their lifetime
was transmitted to their heirs. That is, each of these eight
portions of the fifth of the revenue was transmitted from
succession to succession, within the stirps of each of the
eight younger children who died leaving succession. The
heirs of a younger son or daughter could not legally
participate in the eight part corresponding to another stirps,
as long as heirs in the direct line of this stirps, survived; that
is to say, each of the eight portions of the fifth, except those
corresponding to younger children born without succession.
The heirs of a younger child could not legally participate in
the eight corresponding to another strips, while heirs of this
stirps in the direct line survive. That is to say, each one of
the said eighth parts of the fifth, except those corresponding
to the younger children dying without succession, was
preserved and transmitted from generation to generation
within each respective stirps.
This plan of division of participation, based upon the will of
the founder and the precepts of the law, is that which in our
judgment must continue to prevail, and is that which we shall
follow in determining the proportion which corresponds to the
plaintiffs in the half of the fifth of the properties of this
foundation.
Of the eight younger children four died without succession
and the other four are the descendants of the plaintiffs in this
cause. Hence, four of the eight portions, that is, one-half of
the fifth of the properties of this foundation, belong to the
plaintiffs herein under the plan of division which has just
been indicated. The other four portions, that is, the
remaining one-half of the said fifth, which would have
corresponded to the stirps of the other four younger children,
if they had died leaving succession, accrue, so to speak,
both to the descendants of the younger children leaving
succession and to the other descendants of the founder.
The distribution of this accretion is made in obedience to a
plan distinct from that above indicated, because the founder,
foreseeing the contingency, did not prescribe a quota for
each stirps of his younger children, but ordered that it be
delivered to descendants of both classes, without distinction
of lines or stirps. Consequently, this one-half in accretion
should be distributed among the descendants of the founder
in general, who are the plaintiffs and some of the
defendants, but bearing in mind the different rights with
which each heir participates, by reason of the greater or
lesser proximity of his relationship to the founder, for the
purpose of determining if he is to inherit per capita or per
stripes. We say some of the defendants, because with the
exception of the ten mentioned in paragraph 5 of the
complaint, the other defendants are either persons whose
relationship has not been determined (paragraph 6 of the
complaint) or have refused to become parties to this action
(paragraph 30, of the complaint).
From what has been said it follows that one-half of the fifth of
the properties corresponding to the younger sons leaving
succession, four-fortieth parts (4/40) of the whole of the
properties of this foundation must be divided into four equal
portions, because one portion, or one-fortieth part (1/40)
corresponds to each stirps of the said four younger children.
The other one-half of the said fifth, that is to say, the other
four-fortieth parts (4/40) of the whole of the properties of this
foundation must be distributed in general among the
plaintiffs and some of the defendants, taking into
consideration the circumstances of their respective
heirships.
These properties may be considered as having been
appraised in accordance with provisions of article 4 of the
Disentailing Law, inasmuch as the parties, in paragraph 9 of
the stipulation of facts, have agreed that for all purposes
relating to the decision of this cae, the total value of the
properties of this foundation is five million six hundred
thousand one hundred sixty-eight pesos (P5,600,168).
The one-half of the fifth, or the four-fortieth parts (4/40)
which are to be distributed equally between the stirps of the
four younger sons having descendants, is equivalent,
according to that valuation of the properties, to five hundred
sixty thousand sixteen and 80/100 pesos (P560,016.80), or
one hundred forty thousand four and 20/100 pesos
(P140,004.20), which is one-fortieth part (4/40) for each
stirps.
Of said four stirpes that of the younger son, Don Felix Bolois
Tuason is represented among the plaintiffs by Don Francisco
Beech y Rojo, together with his aunts (cousins of his mother
Doña Pilar Rojo y Tuason, a great granddaughter of the said
younger son), and therefore he inherits in representation of
his and mother; by Doña Teodora Benitez Tuason de Reyes;
by Doña Romana Fuentes de Salgado, and by Doña Urbana
Francisco de Guevara. These three are great
granddaughters of the said younger son. Don Felix Bolois
Tuason (paragraphs 12, 16, 23, 25 of the complaint,
admitted in paragraph 1 of the stipulation of facts). To each
one of these four heirs corresponds a fourth part of the
fortieth part above-mentioned, of the assessed value of
thirty-five thousand one and 05/100 pesos (P35,001.05).
The stirps of Doña Gregoria M. Tuason is represented
among the plaintiffs by Don Antonio Maria Barretto y Rocha;
by Doña Guadalupe Angelica Barretto, widow of Balbas; by
Doña Isabel Rocha Pereyra; by Doña Enriqueta Rocha
Pereyra; by Don Alfredo Rocha Pereyna; by Don Clodoaldo
Rocha Pereyra; by Doña Carmen Rocha Pereyra de Beech;
by Don Antonio Rocha Pereyra; by Don Santiago Rocha y
Ruiz Delgado; by Doña Rosario Rocha y Ruiz Delgado de
Larroquete; by Don Julio Rocha y Ruiz Delgado; by Don
Andres Rocha y Ruiz Delgado; by Don Alfonso Rocha
Uceda; by Don Angel Rocha Rivera; by Doña Araceli Rocha
Rivera; and by Doña Sara Rocha Rivera (paragraphs 7 to 11
of the complaint, admitted by paragraph 1 of the stipulation
of facts.) All these said heirs of the stirps of Doña Gregoria
M. Tuason, sixteen in number, are great grandchildren of the
said younger daugher, Doña Gregoria. To each one of them
corresponds a sixteenth part of a fortieth part of the whole of
the properties, or one six-hundred-fortieth part (1/640) of the
properties, or eight thousand seven hundred fifty pesos and
twenty-seven and one-fourth centavos (P8,750.27 and 1/4
centavo) of the total assessed value.
The stirps of Don Pablo Tuason is represented among the
plaintiffs by heirs who participate in their own right and by
heirs who claim by representation because they inherit with
relatives of the generation of the same degree as their
proximate ascendants. Among the former are Doña Ciriaca
Tuason; Don Cayetano Tuason; Don Pablo Leon Tuason;
Don Tomas Mercado; Doña Victoria Rufina Tuason; Doña
Ana Consolacion Tuason; and Doña Asuncion Romana
Tuason, widow of Caballero. Among the heirs who take by
representation are Don Gaston O'Farrell, who represents his
deceased father, Don Jose O'Farrell, Doña Remedios Ayala
de Reyes and Doña Concepcion Ayala, widow of Beltran,
who represent their deceased mother, Doña Maria O'Farrell
de Ayala; the minors Doña Consuelo, Don Juan, Doña
Rosario and Doña Carmen Tuason y Rosello, who inherit in
representation of their deceased father, Don Juan Tuason;
and Don Vicente L. Legarda who represents his deceased
father Don Miguel Legarda Lerma (paragraphs 13 to 15, 20
to 22, and 24 of the complaint, admitted in paragraph 1 of
the stipulation of facts). These heirs who inherit in their own
right; together with the persons represented by those who
inherit by representation, make a total of eleven great
grandchildren of the said younger son Don Pablo Tuason.
To each of said heirs claiming in their own right and the
persons represented by the others, corresponds an eleventh
part of a fortieth part of the total of the properties, namely,
one four-hundred-and-fortieth part (1/440) of the properties,
or twelve thousand seven hundred twenty-seven pesos and
sixty-five centavos and five elevenths of a centavo
(P12,727.65 and 5/11 the of a centavo) of the total assessed
value.
The stirps of Don Santos Luciano Tuason is represented
among the plaintiffs by Doña Cirila Tuason, widow of Calvo;
by Doña Mariana Aurelia Tuason; and by Don Santiago
Alvarez. These three are all of the same degree of
relationship to the said younger son, whose great
grandchildren they are (paragraphs 17 to 19 of the
complaint, admitted in paragraph 1 of the stipulation of
facts). To each one of these three heirs corresponds one-
third of the fortieth part of the total of the properties, or one
one-hundred and twentieth part (1/20) of the properties, or
forty-six thousand six hundred sixty-eight pesos and six
centavos and two-thirds of a centavo (P46,668.06 and 2/3 of
a centavo) of the total appraised value.
Of the other one-half of the fifth of these properties, and
which is to be distributed in general, as we have already
said, between plaintiffs and some of the defendants, and
which represents four-fortieth parts (4/40), or P560,016.80,
according to the appraised value, the heirs are the said
plaintiffs, who are thirty-three in number altogether, including
those who inherit in their own right and those who are to
inherit by representation, plus ten defendants whose
relationship to the founder is shown by the records and who
are parties to this action, their names being: Don Augusto
Huberto Tuason y de la Paz, Doña Maria Soterranea Tuason
y de la Paz, Don Demeterio Asuncion Tuason y de la Paz,
Don Mariano Severo Tuason y de la Paz, Doña Teresa
Eriberta Tuason y de la Paz, Don Angel Ordoñez (alias
Angel M. Tuason), Don Antonio M. Tuason, Doña Paz
Tuason de Gonzalez, Doña Consuelo Tuason de Quimson
and Doña Rosario Gonzalez, widow of Tuason. (Paragraphs
5 and 26 of the complaint, admitted in paragraph 1 of the
stipulation of facts.) That is to say, this one-half of the fifth is
to be divided into one hundred forty-three equal parts, each
portion being four one-thousand-seven-hundred and
twentieth parts (4/1720) or one four-hundred-and-thirtieth
part (1/430) of the whole of the properties, or thirteen
thousand twenty-three pesos and sixty-four centavos and
twenty-eighth forty-three of a centavo (P13,023.64 and 28/43
of a centavo) of the appraised value for each heir inheriting
in his own right, and for each person represented by the
heirs who inherit by representation.
The plaintiffs who participate with the defendants in the half
of the fifth of the properties are four grandsons who share
with their uncles who are great great grandsons. These four
grandsons who inherit by representation are the following:
Don Gaston O'Farrell, Don Vicente L. Legarda and Don
Santiago Alvarez, who represent respectively their deceased
fathers, for which reason their participations are entire units;
the sisters Doña Remedios and Doña Concepcion Ayala,
who participate jointly in one unit; so also the minors Doña
Consuelo, Don Juan, Doña Rosario and Doña Carmen
Tuason y Rosello, who also receive jointly a single
participation; and in like manner the sisters Doña Cirila and
Doña Martina Aurelia Tuason also participate jointly in one
unit.
With respect to these three descendants of the younger son,
Don Santos Luciano, the peculiarity exists that within their
stirps the three heirs receives equally, as all are of equal
degree of relationship with their common ancestor, the said
younger son. But when they concur with the other
codescendants of the founder, their shares change because
they inherit by representation, as they concur with uncles,
cousins of their fathers, the result being that in such case the
participation of Don Santiago Alvarez is entire, he being the
sole representative of his father, while that of the two sisters
Doña Cirila and Doña Marina is one-half for each, because
both of them represent their father.
Don Jose Rocha y Ruiz and Doña Remedios Aragon y
Rocha, also descendants of younger sons, do not participate
in the fifth of the properties because in 1905 and 1916 they
respectively sold their participations to the defendants. For
this reason their names were not taken into consideration in
the distribution of the fifth of the properties in the preceding
paragraphs.
Among the petition of the complaint in this case is one to the
effect that the defendants, Augusto, Demetrio, Mariano,
Maria Soterranea and Teresa Tuason y de la Paz, and
Messrs. Antonio Ma. Tuason, Angel Ordoñez (alias Angel M.
Tuason) be required to render an account of the receipts,
expenditures and profits of this entail from February 4, 1874,
to January 1, 1922, and deliver to the plaintiffs the part
corresponding to the latter in the net revenue produced by
the said properties, deducting that which each of the
plaintiffs may have received prior to the commencement of
this action.
With regard to these accounts the following agreement was
made in the stipulation of facts:
xxx xxx xxx
10. That the receipts and expenses of the properties on
Calle Rosario are those which appear in the statement
hereunto attached, marked Exhibit 2, and that said
statement is taken from the books of the defendants.
11. That the receipts and expenditures of
the Haciendas Santa Mesa-Diliman and Mariquina
are also those which appear in the annexed
statement, marked Exhibit 3, which is also taken
from the bloods of the defendants.
12. That the stipulation contained in the two
preceding paragraphs shall not prevent the parties
plaintiffs from impugning, as incorrectly charged,
any of the item which appear in the said two
statements.
The accounts mentioned include those of all the properties
of this foundation, for the properties mentioned in the
paragraphs which have been transcribed above are those
which constitute the properties entailed by the founder, Don
Antonio Tuason, as alleged in paragraph 31 of the
complaint, admitted in paragraph 1 of said stipulation of
facts; and the said accounts, Exhibits 2 and 3, correspond to
the period comprised between the 1st day of January, 1904,
and the 31st of December, 1922.
None of the items contained in these accounts having been
successfully impugned, they must be considered, and we
shall consider them, as correct by virtue of the stipulation
above inserted.
These accounts beginning January 1, 1904, and which are
presumed to be the consequence and continuation of those
of previous years, having been admitted, it is our
understanding that plaintiffs cannot now legally claim an
accounting for the time prior to the 1st of January, 1904.
The are, however, entitled to a liquidation of the accounts as
to the expenses and revenues of said properties, and to
receive the corresponding revenue from the 1st of January,
1923, until the defendants shall deliver to them their
respective participations in the properties of this foundation.
Consequently, the plaintiffs are entitled to receive their
respective participations in the fifth of the revenue
corresponding to the period which begins from the 1st of
January, 1904, until the 31st of December, 1922, in
accordance with the accounts which appear in Exhibits 2
and 3.
Plaintiffs are also entitled to the rendition of an account of
the income and products of the said properties from the 1st
of January, 1923, until such time as their participations in the
properties of this foundation are delivered to them, as also to
receive that which pertains to them of the fifth of the
revenues of said properties during said period beginning with
the 1st of January, 1923.
 JUDGMENT one-tenth of a fortieth part of all the properties of this
foundation, or its appraised value of twelve thousand seven
hundred twenty-seven pesos and sixty-five centavos and five
By virtue of the foregoing considerations and conclusions it
elevenths of a centavo (P12,727.65 and 5/11 of a centavo);
is hereby ordered and decreed that the decision of the Court
and furthermore a forty-third part of the other half of the fifth
of First Instance of Manila rendered herein be and it is
of said properties, or its appraised value of thirteen thousand
reversed, and it is declared that the plaintiffs are entitled to
twenty-three pesos and sixty-four centavos and twenty-eight
participate in a fifth of the properties of this foundation and
forty-thirds of a centavo (P13,023.64 and 28/43 of a
its revenues in the proportions and amounts hereinafter
centavo), upon the same two grounds as those which
stated, and that the registration of the title to the said
constitute the basis of the adjudications made in paragraph
properties under Act No. 496 is not an impediment to its
A of this judgment.
division and the transfer to the plaintiffs, as beneficiaries, of
the portions which we shall determine; wherefore it is
ordered: (d) Jointly to the two plaintiffs, Doña Remedios Ayala de
Reyes and Doña Concepcion Ayala, widow of Beltran, in
equal parts, also one-tenth (for the two, not one for each
First. That the defendants, Don Augusto, Don Demetrio, Don
one) of a fortieth part of all the properties of this foundation,
Mariano, Doña Maria Soterranea and Doña Teresa Tuason y
or its appraised value of twelve thousand seven hundred
de la Paz and Don Antonio Ma. Tuason, Don Angel Ordoñez
twenty-seven pesos and sixty-seven centavos and three
(alias Angel M. Tuason), with the intervention of the
elevenths of a centavo (P12,727.67 and 3/11 of a centavo);
plaintiffs, partition the properties of the foundation which is
and also a forty-third part (for the said two plaintiffs) of the
the subject-matter of the present cause, and deliver the
other half of the fifth of said properties, or its appraised value
respective participations, or their value, to the persons and in
of thirteen thousand twenty-three pesos and sixty-four
accordance with the amounts to be specified hereafter, to
centavos and twenty-eight forty-thirds of a centavo
wit:
(P13,023.64 and 28/43 of a centavo) upon the same two
grounds as those which constitute the basis of the
(a) To each of the four plaintiffs, Don Francisco Beech y adjudications made in paragraph A of the present judgment.
Rojo, Doña Teodora Benitez Tuason de Reyes, Doña
Romana Fuentes de Salgado and Doña Urbana Francisco
(e) Jointly to the four minors, Doña Consuelo, Don Juan,
de Guevera, a fourth of a fortieth part of all the properties of
Doña Rosario and Doña Carmen Tuason y Rosello, in equal
this foundation, or its respective appraised value of thirty-five
parts, one-tenth (for the four, not for each) of a fortieth part
thousand one pesos and five centavos (P35,001.05) as their
of all the properties of this foundation, or its appraised value
participation in the one-half of the fifth of the properties in
of twelve thousand seven hundred twenty-seven pesos and
conjunction with their codescendants of the younger sons;
sixty-five centavos and five elevenths of a centavo
and one-forty-third part of the other one-half of the fifth or
(P12,727.65 and 5/11 of a centavo); and also a forty-third
four-fortieth parts of the said properties, or its appraised
part (for the said four plaintiffs) of the other half of the fifth of
value of thirteen thousand twenty-three pesos and sixty four
said properties, or its appraised value of thirteen thousand
centavos and twenty-eight forty-thirds of a centavo
twenty-three pesos and sixty-four centavos and twenty-eight-
(P13,023.64 and 28/43 of a centavo) as their participation in
forty-thirds of a centavo (P13,023.64 and 28/43 of a
the other one-half of the fifth of the properties in conjunction
centavo), upon the same two grounds as those which
with the other descendants of the founder.
constitute the basis of the adjudication made in paragraph A
of this judgment.
(b) To each of the sixteen plaintiffs, Don Antonio Maria
Barretto y Rocha, Doña Guadalupe Angelica Barretto, widow
(f) To each of the three plaintiffs, Doña Cirila Tuason, widow
of Balbas, Doña Isabel Rocha Pereyna, Doña Enriqueta
of Calvo, Doña Marina Aurelia Tuason and Don Santiago
Rocha Pereyna, Don Alfredo Rocha Pereyna, Don
Alvarez, one-third of a fortieth part of the whole of the
Clodoaldo Rocha Pereyna, Doña Carmen Rocha Pereyna
properties of this foundation, or its appraised value of forty-
de Beech, Don Antonio Rocha Pereyna, Don Santiago
six thousand six hundred sixty-eight pesos and six centavos
Rocha y Ruiz Delgado, Doña Rosario Rocha y Ruiz Delgado
and two thirds of a centavo (P46,668.08 and 2/3 of a
de Larroquete, Don Julio Rocha y Ruiz Delgado, Don
centavo); and furthermore to the two sisters Doña Cirila
Andres Rocha y Ruiz Delgado, Don Alfonso Rocha Uceda,
Tuason, widow of Calvo, and Doña Martina Aurelia Tuason,
Don Angel Rocha Rivera, Doña Araceli Rocha Rivera and
jointly, a forty-third part of the other half of the fifth of said
Doña Sara Rocha Rivera, one-sixteenth of a fortieth part of
properties, or its appraised value of thirteen thousand
all the properties of this foundation, or its appraised value of
twenty-three pesos and sixty-four centavos and twenty-eight
eight thousand seven hundred fifth pesos and twenty-six
forty-thirds of a centavo (P13,023.64 and 28/43 of a
centavos and one-fourth of a centavo (P8,750.26 and 1/4 of
centavo); and to Don Santiago Alvarez a forty-third of the
a centavo); and furthermore a forty-third part of the other half
said other half of the fifth of said properties, or its appraised
of the fifth of said properties, or its appraised value, of
value of thirteen thousand twenty-three pesos and sixty-four
thirteen thousand twenty-three pesos and sixty four centavos
centavos and twenty-eight forty-thirds of a centavo
and twenty-eight forty-thirds of a centavo (P13,023.64 and
(P13,023.64 and 28/43 of a centavo), all on the same two
28/43 of a centavo), the adjudication being made upon the
grounds as those which constitute the basis of the
same grounds as the adjudications in the preceding
adjudications made in paragraph A of the present judgment.
paragraph.

Second. That the defendant deliver to the plaintiffs named in

(c) To each of the nine plaintiffs Doña Ciriaca Tuason, Don
paragraphs A, B, C, D, E and F of the present judgment and
Cayetano Tuason, Don Pablo Tuason, Don Tomas Mercado,
in the same proportion established for the distribution made
Doña Victoria Rufina Tuason, Doña Ana Consolacion
in said paragraphs A, B, C, D, E and in the first part of
Tuason, Doña Asuncion Romana Tuason, widow of
paragraph F, the portions which respectively pertain to the
Caballero, Don Gaston O'Farrell and Don Vicente L. Legarda
said plaintiffs of the fifth of the revenues of this mayorazgo,
as shown by Exhibits 2 and 3, from the 1st of January, 1904,
to the 31st of December, 1922: Provided, That the plaintiffs
mentioned in paragraph 2 of the cross-complaint of the
defendants have already received their share of the revenue,
and shall not receive it again for the years specified in said
counter-claim.
Third. That the defendants render an account of the
revenues of the properties of this entail from January 1,
1923, until they deliver to plaintiffs their respective
participations in said properties, in accordance with
paragraphs A, B, C, D, E and F of the present dispositive
part, and that they deliver to the plaintiffs named in said
paragraphs, in the proportion therein specified, their
participations in the fifth of the revenues of said properties
corresponding to the said period of time following January 1,
1923.
Fourth. That the partition of the real estate herein decreed
shall be carried out in accordance with the provisions of
section 184 of the Code of Civil Procedure, and section 84 of
Act No. 496 by causing a technical description to be made of
the portions partitioned, and by the execution by the
defendants of the proper deeds of conveyance and the
delivery to the registrar of the corresponding certificates of
title for the issuance of new certificates of title in favor of the
defendants.
Fifth. That in case the parties should not agree as to the
manner in which such partition is to be effected, the court
below, in this proceeding, shall appoint commissioners to
that effect, all in accordance with the provisions of section
184 of the Code of Civil Procedure, and other applicable
provisions of the Code of Civil Procedure.
No judgment will be entered as to costs. So ordered.
Avanceña, C.J., Street, Malcolm, Villamor, Ostrand, Johns
and Villa-Real, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
January 19, 1906
G.R. No. 1641
GERMAN JABONETA, plaintiff-appellant,
vs.
RICARDO GUSTILO, ET AL., defendants-appellees.
CARSON, J.:
In these proceedings probate was denied the last will and
testament of Macario Jaboneta, deceased, because the
lower court was of the opinion from the evidence adduced at
the hearing that Julio Javellana, one of the witnesses, did
not attach his signature thereto in the presence of Isabelo
Jena, another of the witnesses, as required by the provisions
of section 618 of the Code of Civil Procedure.
The following is a copy of the evidence which appears of
record on this particular point, being a part of the testimony
of the said Isabeo Jena:
Q. Â Â Â 1641 Â Â Who first signed the will?
A. Â Â Â 1641 Â Â I signed it first, and afterwards
Aniceto and the others.
Q. Â Â Â 1641 Â Â Who were those others to whom you
have just referred?
A. Â Â Â 1641 Â Â After the witness Aniceto signed the
will I left the house, because I was in a hurry, and at the
moment when I was leaving I saw Julio Javellana with the
pen in his hand in position ready to sign (en actitud de
firmar). I believe he signed, because he was at the table. . .
.
Q. Â Â Â 1641 Â Â State positively whether Julio
Javellana did or did not sign as a witness to the will.
A. Â Â Â 1641 Â Â I can’t say certainly, because as I was
leaving the house I saw Julio Javellana with the pen in his
hand, in position ready to sign. I believe he signed.
Q. Â Â Â 1641 Â Â Why do you believe Julio Javellana
signed?
A. Â Â Â 1641 Â Â Because he had the pen in his hand,
which was resting on the paper, though I did not actually
see him sign.
Q. Â Â Â 1641 Â Â Explain this contradictory statement.
A. Â Â Â 1641 Â Â After I signed I asked permission to
leave, because I was in a hurry, and while I was leaving
Julio had already taken the pen in his hand, as it appeared,
for the purpose of signing, and when I was near the door I
happened to turn my face and I saw that he had his hand
with the pen resting on the will, moving it as if for the
purpose of signing.
Q. Â Â Â 1641 Â Â State positively whether Julio moved
his hand with the pen as if for the purpose of signing, or
whether he was signing
A. Â Â Â I believe he was signing.
The truth and accuracy of the testimony of this witness does
not seem to have been questioned by any of the parties to
the proceedings, but the court, nevertheless, found the
following facts:
On the 26th day of December, 1901, Macario Jaboneta
executed under the following circumstances the document in
question, which has been presented for probate as his will:
Being in the house of Arcadio Jarandilla, in Jaro, in this
province, he ordered that the document in question be
written, and calling Julio Javellana, Aniceto Jalbuena, and
Isabelo Jena as witnesses, executed the said document as
his will. They were all together, and were in the room where
Jaboneta was, and were present when he signed the
document, Isabelo Jena signing afterwards as a witness, at
his request, and in his presence and in the presence of the
other two witnesses. Aniceto Jalbuena then signed as a
witness in the presence of the testator, and in the presence
of the other two persons who signed as witnesses. At that
moment Isabelo Jena, being in a hurry to leave, took his hat
and left the room. As he was leaving the house Julio
Javellana took the pen in his hand and put himself in
position to sign the will as a witness, but did not sign in the
presence of Isabelo Jena; but nevertheless, after Jena had
left the room the said Julio Javellana signed as a witness in
the presence of the testator and of the witness Aniceto
Jalbuena.
We can not agree with so much of the above finding of facts
as holds that the signature of Javellana was not signed in
the presence of Jena, in compliance with the provisions of
section 618 of the Code of Civil Procedure. The fact that
Jena was still in the room when he saw Javellana moving his
hand and pen in the act of affixing his signature to the will,
taken together with the testimony of the remaining
witnesses which shows that Javellana did in fact there and
then sign his name to the will, convinces us that the
signature was affixed in the presence of Jena. The fact that
he was in the act of leaving, and that his back was turned
while a portion of the name of the witness was being
written, is of no importance. He, with the other witnesses
and the testator, had assembled for the purpose of
executing the testament, and were together in the same
room for that purpose, and at the moment when the witness
Javellana signed the document he was actually and
physically present and in such position with relation to
Javellana that he could see everything which took place by
merely casting his eyes in the proper direction, and without
any physical obstruction to prevent his doing so, therefore
we are of opinion that the document was in fact signed
before he finally left the room.
The purpose of a statutory requirement that the witness sign
in the presence of the testator is said to be that the testator
may have ocular evidence of the identity of the instrument
subscribed by the witness and himself, and the generally
accepted tests of presence are vision and mental
apprehension. (See Am. & Eng. Enc. of Law, vol. 30, p. 599,
and cases there cited.)
In the matter of Bedell (2 Connoly (N.Y.), 328) it was held
that it is sufficient if the witnesses are together for the
purpose of witnessing the execution of the will, and in a
position to actually see the testator write, if they choose to
do so; and there are many cases which lay down the rule
that the true test of vision is not whether the testator
actually saw the witness sign, but whether he might have
seen him sign, considering his mental and physical condition
and position at the time of the subscription.
(Spoonemore vs. Cables, 66 Mo., 579.)
The principles on which these cases rest and the tests of
presence as between the testator and the witnesses are
equally applicable in determining whether the witnesses
signed the instrument in the presence of each other, as
required by the statute, and applying them to the facts
proven in these proceedings we are of opinion that the
statutory requisites as to the execution of the instrument
were complied with, and that the lower court erred in
denying probate to the will on the ground stated in the
ruling appealed from.
We are of opinion from the evidence of record that the
instrument propounded in these proceedings was
satisfactorily proven to be the last will and testament of
Macario Jaboneta, deceased, and that it should therefore be
admitted to probate.
The judgment of the trial court is reversed, without especial
condemnation of costs, and after twenty days the record will
be returned to the court form whence it came, where the
proper orders will be entered in conformance herewith. So
ordered.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-5971 February 27, 1911
BEATRIZ NERA, ET AL., plaintiffs-appellees,
vs.
NARCISA RIMANDO, defendant-appellant.
CARSON, J.:
The only question raised by the evidence in this case as to
the due execution of the instrument propounded as a will in
the court below, is whether one of the subscribing witnesses
was present in the small room where it was executed at the
time when the testator and the other subscribing witnesses
attached their signatures; or whether at that time he was
outside, some eight or ten feet away, in a large room
connecting with the smaller room by a doorway, across
which was hung a curtain which made it impossible for one
in the outside room to see the testator and the other
subscribing witnesses in the act of attaching their signatures
to the instrument.
A majority of the members of the court is of opinion that this
subscribing witness was in the small room with the testator
and the other subscribing witnesses at the time when they
attached their signatures to the instrument, and this finding,
of course, disposes of the appeal and necessitates the
affirmance of the decree admitting the document to probate
as the last will and testament of the deceased.
The trial judge does not appear to have considered the
determination of this question of fact of vital importance in
the determination of this case, as he was of opinion that
under the doctrine laid down in the case of Jaboneta vs.
Gustilo (5 Phil. Rep., 541) the alleged fact that one of the
subscribing witnesses was in the outer room when the
testator and the other describing witnesses signed the
instrument in the inner room, had it been proven, would not
be sufficient in itself to invalidate the execution of the will.
But we are unanimously of opinion that had this subscribing
witness been proven to have been in the outer room at the
time when the testator and the other subscribing witnesses
attached their signatures to the instrument in the inner room,
it would have been invalid as a will, the attaching of those
signatures under circumstances not being done "in the
presence" of the witness in the outer room. This because the
line of vision from this witness to the testator and the other
subscribing witnesses would necessarily have been impeded
by the curtain separating the inner from the outer one "at the
moment of inscription of each signature."
In the case just cited, on which the trial court relied, we held
that:
The true test of presence of the testator and the
witnesses in the execution of a will is not whether
they actually saw each other sign, but whether
they might have been seen each other sign, had
they chosen to do so, considering their mental and
physical condition and position with relation to
each other at the moment of inscription of each
signature.
But it is especially to be noted that the position of the parties
with relation to each other at the moment of the subscription
of each signature, must be such that they may see each
other sign if they choose to do so. This, of course, does not
mean that the testator and the subscribing witnesses may be
held to have executed the instrument in the presence of
each other if it appears that they would not have been able
to see each other sign at that moment, without changing
their relative positions or existing conditions. The evidence in
the case relied upon by the trial judge discloses that "at the
moment when the witness Javellana signed the document
he was actually and physically present and in such position
with relation to Jaboneta that he could see everything that
took place by merely casting his eyes in the proper direction
and without any physical obstruction to prevent his doing
so." And the decision merely laid down the doctrine that the
question whether the testator and the subscribing witnesses
to an alleged will sign the instrument in the presence of each
other does not depend upon proof of the fact that their eyes
were actually cast upon the paper at the moment of its
subscription by each of them, but that at that moment
existing conditions and their position with relation to each
other were such that by merely casting the eyes in the
proper direction they could have seen each other sign. To
extend the doctrine further would open the door to the
possibility of all manner of fraud, substitution, and the like,
and would defeat the purpose for which this particular
condition is prescribed in the code as one of the requisites in
the execution of a will.
The decree entered by the court below admitting the
instrument propounded therein to probate as the last will and
testament of Pedro Rimando, deceased, is affirmed with
costs of this instance against the appellant.
Arellano, C. J., Mapa, Moreland and Trent, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-27989 February 8, 1928
Intestate of the deceased Pedro de Gala.
SINFOROSO DE GALA, petitioner-appellee,
vs.
GENEROSO DE GALA and JOSEFA
ALABASTRO, opponents-appellants.
STREET, J.:
This is an administration proceeding from the Court of First
Instance of the Province of Tayabas whereby the petitioner,
Sinforoso de Gala, seeks to enforce the liquidation of the
estate of his father, Pedro de Gala, deceased, against
Josefa Alabastro, as widow, and Generoso de Gala, a son of
the decedent and half-brother of the plaintiff, and to recover
from them the hereditary portion which the plaintiff alleges
pertains to him in said estate. Opposition was made to the
proceeding by the two defendants, and this opposition finally
took the form of a motion to exclude the plaintiff from the
participation in the estate on the ground that he had no
heritable interest therein. Upon considering this motion the
trial court sustained the plaintiff's right and denied the
motion. From this order the defendants appealed.
The first point raised in the appellants' bill of exceptions has
reference to a matter of procedure, which, in the view we
take of the case, is not necessary to the decision. We
therefore provisionally assume that no error was committed
by the trial judge in entertaining the motion which gave origin
to the appealed order; and we pass at once to the
consideration of the question of substantive law involved in
the case. The facts are unfortunately few and undisputed.
It appears that Pedro de Gala died intestate in the City of
Manila on or about July 23, 1919, leaving an estate in the
Province of Tayabas and in the City of Manila, consisting of
real and personal property. It is stated in the petition that the
value of this estate is approximately five hundred thousands
pesos (P500,000), with an annual income of about fifty
thousand pesos (P50,000). The defendants do not admit that
the value of the estate reaches the amount stated, but it is
evidently large. The plaintiff, Sinforoso de Gala, is a natural
son of Pedro de Gala and was born on June 17, 1879, while
Generoso de Gala, one of the defendants herein, is a
legitimate son of Pedro de Gala and was born on July 17,
1881. As already stated, the other defendant, Josefa
Alabastro, is the widow of Pedro de Gala
The plaintiff, Sinforoso de Gala, was never recognized as a
natural son by the voluntary act of his father, Pedro de Gala,
in life; and in order to enforce recognition the plaintiff, on
august 29, 1917, instituted an action against his father to
compel recognition. While this litigation was pending Pedro
de Gala died, and Josefa Alabastro and Generoso de Gala
were substituted as defendants. When the cause was finally
heard in the Supreme Court, upon appeal from a judgment
of the Court of First Instance, which had been unfavorable to
the plaintiff, said judgment was reversed and judgment was
here entered requiring the defendants to recognize the
plaintiff as the natural son of Pedro de Gala (De Gala, 42
Phil., 771). Pursuant to said judgment, and in order to obtain
his share in the estate of his deceased father, the present
proceeding was begun.
The right of the plaintiff to participate in the estate of his
deceased father is based upon articles 134 and 942 in
relation with article 840 of the Civil Code, defining the
heritable portion of a recognized natural child in case of the
concurrence of such heir with one or more legitimate
children. In this connection it will be remembered that the
right of a recognized natural child to inherit any part of the
estate of his father was, in Spanish law, first conferred by the
Civil Code, which went into effect in the Philippine Islands on
December 8, 1889.
In support of the plaintiff's right to participate in the estate,
reference is made to subsection 12 of the transitory
provisions of the Civil Code wherein it is stated, in effect, that
the estates of those who die, with or without will,
subsequently to the taking effect of the Civil Code, shall be
allotted and divided according to the Code, and that the legal
portion given by the Code shall be respected. The
defendants on the contrary question the heritable right of the
plaintiff, basing their contention on No. 1 of the transitory
provisions, as interpreted by this court in Rocha vs. Tuason
and Rocha de Despujols (39 Phil., 976).
The transitory provisions thus brought under discussion are
vital to the case and are therefore here reproduced:
Changes introduced by this Code prejudicial to
rights acquired under prior civil law shall not have
rotroactive effect.
For the application of the corresponding legislation
in cases not expressly determined in the Code, the
following rule shall be observed:
1. Rights originating, according to prior legislation,
in acts that occurred under the regimen of such
legislation shall be governed thereby, even if the
Code regulates them in some other way or does
not recognize them. But if the right shall have
been declared for the first time in this Code, it shall
have effect at once, although the fact originating it
may have occurred under the former regimen,
whenever it is not prejudicial to any other acquired
right of equal origin.
xxx xxx xxx
12. Rights to the inheritance of one who may have
died, with or without a will, before this Code goes
into effect, shall be governed by prior legislation.
The inheritance of those dying afterwards, with or
without a will, shall be allotted and divided in
accordance with this Code, but in harmony, in so
far as the latter permits it, with the testamentary
dispositions. Therefore legal portions, betterments,
and legacies shall be respected; but their amounts
shall be reduced when it is not possible in any
other manner to give to each participant in the
inheritance the share pertaining to him according
to this Code.
From the facts already stated it will be seen that both the
natural and the legitimate son of Pedro de Gala were born
before the Civil Code went into effect in these Islands; while
the death of the father and the enforced judicial recognition
of the natural son occurred under the regimen of said Code.
It is a tenable assumption that the legal recognition of the
plaintiff as a natural son should be considered as effective
from the date of the filing of the complaint in 1917; but if not
to so, it was at least effective from the date of the judgment
entered in 1992. For the purposes of this suit the point is
unimportant, since it is clear that in any case legal
recognition did not occur until long after the Civil Code
became effective in these Islands.
As the death of Pedro de Gala and the opening of the
succession to his estate occurred under the regimen of the
Civil Code, we are of the opinion that No. 12 of the
Transitory Provisions is of exact and particular application,
and that there is nothing in No. 1 of the same provisions
which supplies any obstacle to the application of No. 12 to
the facts of this case. In paragraph No. 12 it is expressly
declared that the estates of those who die after the Code
becomes effective shall be distributed according to the Code
and that legal portions shall be respected. This language can
have no other meaning than that the hereditary portion given
to the recognized natural child By No. 3 of article 134 of the
Civil Code shall be recognized as valid, for the circumstance
that the plaintiff in this case, though beginning his action for
acknowledgement within the life of his father, did not
succeed in obtaining a judgment compelling recognition until
after his father was dead cannot be considered in any wise
prejudicial to him. That No. 12 of the Transitory Provisions is
applicable to the estates of persons dying after the Civil
Code went into effect is recognized in decisions of the
Supreme Court of Spain dated respectively March 20, 1897,
and June 24, 1897; and this doctrine is expounded by
Manresa in his comment upon No. 12 as follows:
Here is the legal reason and at the same time the
determination of the scope and meaning of the
rule of which we speak. It does not mean that the
succession shall be governed by one or the other
law according to whether the ancestor may have
died before or after the Code went into effect, nor
was there are need of making such a statement,
because this is already provided for in rule 2, and
what is provided for in the present rule by way of
exception to what is provided for in the former is
that the rights of forced heirs to the inheritance in
successions opened after the Civil Code went into
effect shall always be governed by the provisions
of the latter, to which end the provisions of wills
executed before May 1st, 1889, referring to the
rights of said heirs, will be adjusted to the
provisions of said Code.
The reason of that is obvious, because in the
matter of succession there is no vested right until
the succession is opened that is, till the death of
the person whose inheritance is in question, as we
have already said on another occasion, and by the
present it is made to conform with the precepts of
modern legislation, harmonizing it and making it
compatible with the transcedent reform effected by
the Civil Code.
The Supreme Court, in its decision of June 24,
1897, giving the same explanation to the present
rule, declared that the principle of the irretroactivity
of the new law governs only such rights as
originated under the regimen of the old law, it
being well known that hereditary rights do not vest
until the death of the person whose inheritance is
in question. Therefore, they cannot be governed
by the old law if the death is posterior to the new,
which is the very thing we have stated as being
the foundation of juridicial reason of this precept.
Directing our attention now to No. 1 of the Transitory
Provisions, which is supposed by the appellants to be
incompatible with the right asserted by the plaintiff, we note
first that proposition No. 1 of a more general nature than
proposition No. 12, since the latter provides a particular rule
for the distribution of the estates of persons dying after the
Code enters into effect, while No. 1 states a general rule for
harmonizing certain competing rights. In accordance then
with the rule that the particular governs the general, No. 12
must control over No. 1.
It will be noted that, under No. 1, where there are two
competing rights, one of which is given for the first time by
the Code, the law looks to the acts in which the two
competing rights may have originated, and when it is found
that the acts which gave origin to the competing rights
occurred prior to the adoption of the Code, the right newly
recognized in the Code cannot be given effect, because
prejudicial to the other right. In the case before us, while it is
evident that the successional right of the legitimate son,
Generoso de Gala, did not become vested until the death of
his father, yet it is also clear that this right is derived from a
fact which occurred under law anterior to the Code, namely,
the fact that said son was born with the status of legitimate
son. It is this fact which originated the successional right of
this heir. But with respect to the natural son, Sinforoso de
Gala, it is equally obvious that the act that gave origin to his
successional right was the enforced judicial recognition
resulting from the civil action begun by the plaintiff in 1917.
This act occurred under the Code. In this connection it must
be remembered that the fact of birth does not give the
natural child any heritable right whatever in the estate of his
father. This is equally true of both the old and the new law. It
is the recognition of the natural child that originates his right
of succession, recognized for the first time in the Code. As a
consequence the two competing successional rights in this
case do not have the same origin in respect to the estate of
law under which they occurred, since one had its origin in an
act occuring under the anterior legislation while the other
had its origin in an act occuring under the Code.
Upon analyzing the language of No. 1 of the Transitory
Provisions it will be noted that it is only when the two
competing rights have their origin in acts occuring under the
old regime that the restriction applies which prohibits the
right newly granted in the Code from having it due effect. If
the acts originating the two rights occur under the Code, or if
either occurs under the Code, the Code provision must rule,
and the right newly given by it prevails. It is obvious, for
instance, that if, in the case before us, the legitimate soon
had been born after the Code entered into effect, the
provisions of the Code would have prevailed; also that the
same result would have followed in such case even if the act
of recognition of the natural so had occurred prior to the date
when the Code took effect.
But it is supposed that the decision of this court in the case
of Rocha vs. Tuason and Rocha de Despujols (39 Phil.,
976), is inconsistent with the right of the plaintiff. This is a
mistake. In the case mentioned both the natural and the
legitimate child were born under the regimen of the old law,
and in addition to this there had been a tacit recognition of
the natural child — which was valid under said law — long
prior to the date when the Civil Code went into effect. Both
the competing right in that case therefore had their origin in
acts which occurred under the earlier regimen; and this
circumstance makes the very case for the application of the
restriction upon the new right which is expressed in the
closing words of No. 1 of the Transitory Provisions. It may be
noted that three members of the court dissented in Rocha
vs. Tuason and Rocha de Despujols, a circumstance which
detracts in some measure from the weight of the precedent;
and the attorneys for the appellee have drawn in question
the correctness of the judgment. Into this controversy it is not
necessary to enter. We may observe, however, that the
opinion of the court in the case referred to makes no
reference to No. 12 of the Transitory Provisions, which if
reflectively weighed, might have been found pertinent to the
decision.
The order appealed from is in our opinion without error, and
it is accordingly affirmed, with costs. So ordered.
Johnson, Ostrand, Johns, Romualdez and Villa-Real, JJ.,
concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-4067 November 29, 1951
In the Matter of the will of ANTERO MERCADO,
deceased. ROSARIO GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.
PARAS, C.J.:
This is an appeal from a decision of the Court of Appeals
disallowing the will of Antero Mercado dated January 3,
1943. The will is written in the Ilocano dialect and contains
the following attestation clause:
We, the undersigned, by these presents to declare
that the foregoing testament of Antero Mercado
was signed by himself and also by us below his
name and of this attestation clause and that of the
left margin of the three pages thereof. Page three
the continuation of this attestation clause; this will
is written in Ilocano dialect which is spoken and
understood by the testator, and it bears the
corresponding number in letter which compose of
three pages and all them were signed in the
presence of the testator and witnesses, and the
witnesses in the presence of the testator and all
and each and every one of us witnesses.
In testimony, whereof, we sign this statement, this
the third day of January, one thousand nine
hundred forty three, (1943) A.D.
(Sgd.) NUMERIANO (Sgd.)
EVANGELISTA "ROSENDACORTES
(Sgd.) BIBIANA
ILLEGIBLE
The will appears to have been signed by Atty. Florentino
Javier who wrote the name of Antero Mercado, followed
below by "A reugo del testator" and the name of Florentino
Javier. Antero Mercado is alleged to have written a cross
immediately after his name. The Court of Appeals, reversing
the judgement of the Court of First Instance of Ilocos Norte,
ruled that the attestation clause failed (1) to certify that the
will was signed on all the left margins of the three pages and
at the end of the will by Atty. Florentino Javier at the express
request of the testator in the presence of the testator and
each and every one of the witnesses; (2) to certify that after
the signing of the name of the testator by Atty. Javier at the
former's request said testator has written a cross at the end
of his name and on the left margin of the three pages of
which the will consists and at the end thereof; (3) to certify
that the three witnesses signed the will in all the pages
thereon in the presence of the testator and of each other.
In our opinion, the attestation clause is fatally defective for
failing to state that Antero Mercado caused Atty. Florentino
Javier to write the testator's name under his express
direction, as required by section 618 of the Code of Civil
Procedure. The herein petitioner (who is appealing by way of
certiorari from the decision of the Court of Appeals) argues,
however, that there is no need for such recital because the
cross written by the testator after his name is a sufficient
signature and the signature of Atty. Florentino Javier is a
surplusage. Petitioner's theory is that the cross is as much a
signature as a thumbmark, the latter having been held
sufficient by this Court in the cases of De Gala vs. Gonzales
and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479;
Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil.,
296 and Lopez vs. Liboro, 81 Phil., 429.
It is not here pretended that the cross appearing on the will
is the usual signature of Antero Mercado or even one of the
ways by which he signed his name. After mature reflection,
we are not prepared to liken the mere sign of the cross to a
thumbmark, and the reason is obvious. The cross cannot
and does not have the trustworthiness of a thumbmark.
What has been said makes it unnecessary for us to
determine there is a sufficient recital in the attestation clause
as to the signing of the will by the testator in the presence of
the witnesses, and by the latter in the presence of the
testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with
against the petitioner. So ordered.
Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista
Angelo, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-40207 September 28, 1984
ROSA K. KALAW, petitioner,
vs.
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of
the CFI of Batangas, Branch VI, Lipa City, and
GREGORIO K. KALAW, respondents.
MELENCIO-HERRERA, J.:
On September 1, 1971, private respondent GREGORIO K.
KALAW, claiming to be the sole heir of his deceased sister,
Natividad K. Kalaw, filed a petition before the Court of First
Instance of Batangas, Branch VI, Lipa City, for the probate of
her holographic Will executed on December 24, 1968.
The holographic Will reads in full as follows:
My Last will and Testament
In the name of God, Amen.
I Natividad K. Kalaw Filipino 63years of age, single, and a
resident of Lipa City, being of sound and disposing mind and
memory, do hereby declare thus to be my last will and
testament.
1. It is my will that I'll be burried in the cemetery of the
catholic church of Lipa City. In accordance with the rights of
said Church, and that my executrix hereinafter named
provide and erect at the expose of my state a suitable
monument to perpetuate my memory.
xxx xxx xxx
The holographic Will, as first written, named ROSA K.
Kalaw, a sister of the testatrix as her sole heir. Hence, on
November 10, 1971, petitioner ROSA K. Kalaw opposed
probate alleging, in substance, that the holographic Will
contained alterations, corrections, and insertions without the
proper authentication by the full signature of the testatrix as
required by Article 814 of the Civil Code reading:
Art. 814. In case of any insertion,
cancellation, erasure or alteration in a
holographic will the testator must
authenticate the same by his full
signature.
ROSA's position was that the holographic Will, as first
written, should be given effect and probated so that she
could be the sole heir thereunder.
After trial, respondent Judge denied probate in an Order,
dated September 3, 197 3, reading in part:
The document Exhibit "C" was
submitted to the National Bureau of
Investigation for examination. The NBI
reported that the handwriting, the
signature, the insertions and/or
additions and the initial were made by
one and the same person.
Consequently, Exhibit "C" was the
handwriting of the decedent, Natividad
K. Kalaw. The only question is whether
the win, Exhibit 'C', should be admitted
to probate although the alterations
and/or insertions or additions above-
mentioned were not authenticated by
the full signature of the testatrix
pursuant to Art. 814 of the Civil Code.
The petitioner contends that the
oppositors are estopped to assert the
 provision of Art. 814 on the ground that
they themselves agreed thru their
counsel to submit the Document to the
NBI FOR EXAMINATIONS. This is
untenable. The parties did not agree,
nor was it impliedly understood, that the
oppositors would be in estoppel.
The Court finds, therefore, that the
provision of Article 814 of the Civil Code
is applicable to Exhibit "C". Finding the
insertions, alterations and/or additions in
Exhibit "C" not to be authenticated by
the full signature of the testatrix
Natividad K. Kalaw, the Court will deny
the admission to probate of Exhibit "C".
WHEREFORE, the petition to probate
Exhibit "C" as the holographic will of
Natividad K. Kalaw is hereby denied.
SO ORDERED.
From that Order, GREGORIO moved for reconsideration
arguing that since the alterations and/or insertions were the
testatrix, the denial to probate of her holographic Will would
be contrary to her right of testamentary disposition.
Reconsideration was denied in an Order, dated November 2,
1973, on the ground that "Article 814 of the Civil Code being
, clear and explicit, (it) requires no necessity for
interpretation."
From that Order, dated September 3, 1973, denying probate,
and the Order dated November 2, 1973 denying
reconsideration, ROSA filed this Petition for Review on
certiorari on the sole legal question of whether or not
theoriginal unaltered text after subsequent alterations and
insertions were voided by the Trial Court for lack of
authentication by the full signature of the testatrix, should be
probated or not, with her as sole heir.
Ordinarily, when a number of erasures, corrections, and
interlineations made by the testator in a holographic Will
litem not been noted under his signature, ... the Will is not
thereby invalidated as a whole, but at most only as respects
the particular words erased, corrected or
interlined.1 Manresa gave an Identical commentary when he
said "la omision de la salvedad no anula el testamento,
segun la regla de jurisprudencia establecida en la sentencia
de 4 de Abril de 1895." 2
However, when as in this case, the holographic Will in
dispute had only one substantial provision, which was
altered by substituting the original heir with another, but
which alteration did not carry the requisite of full
authentication by the full signature of the testator, the effect
must be that the entire Will is voided or revoked for the
simple reason that nothing remains in the Will after that
which could remain valid. To state that the Will as first
written should be given efficacy is to disregard the seeming
change of mind of the testatrix. But that change of mind can
neither be given effect because she failed to authenticate it
in the manner required by law by affixing her full signature,
The ruling in Velasco, supra, must be held confined to such
insertions, cancellations, erasures or alterations in a
holographic Will, which affect only the efficacy of the altered
words themselves but not the essence and validity of the Will
itself. As it is, with the erasures, cancellations and alterations
made by the testatrix herein, her real intention cannot be
determined with certitude. As Manresa had stated in his
commentary on Article 688 of the Spanish Civil Code,
whence Article 814 of the new Civil Code was derived:
... No infringe lo dispuesto en este articulo del
Codigo (el 688) la sentencia que no declara la
nulidad de un testamento olografo que contenga
palabras tachadas, enmendadas o entre
renglones no salvadas por el testador bajo su
firnia segun previene el parrafo tercero del mismo,
porque, en realidad, tal omision solo puede afectar
a la validez o eficacia de tales palabras, y nunca
al testamento mismo, ya por estar esa disposicion
en parrafo aparte de aquel que determine las
condiciones necesarias para la validez del
testamento olografo, ya porque, de admitir lo
contrario, se Ilegaria al absurdo de que pequefias
enmiendas no salvadas, que en nada afectasen a
la parte esencial y respectiva del testamento,
vinieran a anular este, y ya porque el precepto
contenido en dicho parrafo ha de entenderse en
perfecta armonia y congruencia con el art. 26 de
la ley del Notariado que declara nulas las
adiciones apostillas entrerrenglonados,
raspaduras y tachados en las escrituras matrices,
siempre que no se salven en la forma prevenida,
paro no el documento que las contenga, y con
mayor motivo cuando las palabras enmendadas,
tachadas, o entrerrenglonadas no tengan
importancia ni susciten duda alguna acerca del
pensamiento del testador, o constituyan meros
accidentes de ortografia o de purez escrituraria,
sin trascendencia alguna(l).
Mas para que sea aplicable la doctrina
de excepcion contenida en este ultimo
fallo, es preciso que las tachaduras,
enmiendas o entrerrenglonados sin
salvar saan de pala bras que no
afecter4 alteren ni uarien de modo
substancial la express voluntad del
testador manifiesta en el documento.
Asi lo advierte la sentencia de 29 de
Noviembre de 1916, que declara nulo
un testamento olografo por no estar
salvada por el testador la enmienda del
guarismo ultimo del año en que fue
extendido 3 (Emphasis ours).
WHEREFORE, this Petition is hereby dismissed and the
Decision of respondent Judge, dated September 3, 1973, is
hereby affirmed in toto. No costs.
SO ORDERED.
Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.
Relova, J., took no part.
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 106720 September 15, 1994
SPOUSES ROBERTO AND THELMA AJERO, petitioners,
vs.
THE COURT OF APPEALS AND CLEMENTE
SAND, respondents.
PUNO, J.:
This is an appeal by certiorari from the Decision of the Court
of
Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992,
the dispositive portion of which reads;
PREMISES CONSIDERED, the
questioned decision of November 19,
1988 of the trial court is hereby
REVERSED and SET ASIDE, and the
petition for probate is hereby
DISMISSED. No costs.
The earlier Decision was rendered by the RTC of
Quezon City, Branch 94, 2 in Sp. Proc. No. Q-
37171, and the instrument submitted for probate is
the holographic will of the late Annie Sand, who
died on November 25, 1982.
In the will, decedent named as devisees, the following:
petitioners Roberto and Thelma Ajero, private respondent
Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand,
Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr.,
and their children.
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-
37171, for allowance of decedent's holographic will. They
alleged that at the time of its execution, she was of sound
and disposing mind, not acting under duress, fraud or undue
influence, and was in every respect capacitated to dispose of
her estate by will.
Private respondent opposed the petition on the grounds that:
neither the testament's body nor the signature therein was in
decedent's handwriting; it contained alterations and
corrections which were not duly signed by decedent; and,
the will was procured by petitioners through improper
pressure and undue influence. The petition was likewise
opposed by Dr. Jose Ajero. He contested the disposition in
the will of a house and lot located in Cabadbaran, Agusan
Del Norte. He claimed that said property could not be
conveyed by decedent in its entirety, as she was not its sole
owner.
Notwithstanding the oppositions, the trial court admitted the
decedent's holographic will to probate. It found, inter alia:
Considering then that the probate proceedings
herein must decide only the question of identity of
the will, its due execution and the testamentary
capacity of the testatrix, this probate court finds no
reason at all for the disallowance of the will for its
failure to comply with the formalities prescribed by
law nor for lack of testamentary capacity of the
testatrix.
For one, no evidence was presented to show that
the will in question is different from the will actually
executed by the testatrix. The only objections
raised by the oppositors . . . are that the will was
not written in the handwriting of the testatrix which
properly refers to the question of its due execution,
and not to the question of identity of will. No other
will was alleged to have been executed by the
testatrix other than the will herein presented.
Hence, in the light of the evidence adduced, the
identity of the will presented for probate must be
accepted, i.e., the will submitted in Court must be
deemed to be the will actually executed by the
testatrix.
xxx xxx xxx
While the fact that it was entirely written, dated
and signed in the handwriting of the testatrix has
been disputed, the petitioners, however, have
satisfactorily shown in Court that the holographic
will in question was indeed written entirely, dated
and signed in the handwriting of the testatrix.
Three (3) witnesses who have convincingly shown
knowledge of the handwriting of the testatrix have
been presented and have explicitly and
categorically identified the handwriting with which
the holographic will in question was written to be
the genuine handwriting and signature of the
testatrix. Given then the aforesaid evidence, the
requirement of the law that the holographic will be
entirely written, dated and signed in the
handwriting of the testatrix has been complied
with.
xxx xxx xxx
As to the question of the testamentary capacity of
the testratix, (private respondent) Clemente Sand
himself has testified in Court that the testatrix was
completely in her sound mind when he visited her
during her birthday celebration in 1981, at or
around which time the holographic will in question
was executed by the testatrix. To be of sound
mind, it is sufficient that the testatrix, at the time of
making the will, knew the value of the estate to be
disposed of, the proper object of her bounty, and
thecharacter of the testamentary act . . . The will
itself shows that the testatrix even had detailed
knowledge of the nature of her estate. She even
identified the lot number and square meters of the
lots she had conveyed by will. The objects of her
bounty were likewise identified explicitly. And
considering that she had even written a nursing
book which contained the law and jurisprudence
on will and succession, there is more than
sufficient showing that she knows the character of
the testamentary act.
In this wise, the question of identity of the will, its
due execution and the testamentary capacity of
 the testatrix has to be resolved in favor of the
allowance of probate of the will submitted herein.
Likewise, no evidence was presented to show
sufficient reason for the disallowance of herein
holographic will. While it was alleged that the said
will was procured by undue and improper pressure
and influence on the part of the beneficiary or of
some other person, the evidence adduced have
not shown any instance where improper pressure
or influence was exerted on the testatrix. (Private
respondent) Clemente Sand has testified that the
testatrix was still alert at the time of the execution
of the will, i.e., at or around the time of her birth
anniversary celebration in 1981. It was also
established that she is a very intelligent person
and has a mind of her own. Her independence of
character and to some extent, her sense of
superiority, which has been testified to in Court, all
show the unlikelihood of her being unduly
influenced or improperly pressured to make the
aforesaid will. It must be noted that the undue
influence or improper pressure in question herein
only refer to the making of a will and not as to the
specific testamentary provisions therein which is
the proper subject of another proceeding. Hence,
under the circumstances, this Court cannot find
convincing reason for the disallowance of the will
herein.
Considering then that it is a well-established
doctrine in the law on succession that in case of
doubt, testate succession should be preferred over
intestate succession, and the fact that no
convincing grounds were presented and proven
for the disallowance of the holographic will of the
late Annie Sand, the aforesaid will submitted
herein must be admitted to probate. 3 (Citations
omitted.)
On appeal, said Decision was reversed, and the petition for
probate of decedent's will was dismissed. The Court of
Appeals found that, "the holographic will fails to meet the
requirements for its validity." 4 It held that the decedent did
not comply with Articles 813 and 814 of the New Civil Code,
which read, as follows:
Art. 813: When a number of dispositions
appearing in a holographic will are signed without
being dated, and the last disposition has a
signature and date, such date validates the
dispositions preceding it, whatever be the time of
prior dispositions.
Art. 814: In case of insertion, cancellation, erasure
or alteration in a holographic will, the testator must
authenticate the same by his full signature.
It alluded to certain dispositions in the will which were either
unsigned and undated, or signed but not dated. It also found
that the erasures, alterations and cancellations made
thereon had not been authenticated by decedent.
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that will
shall be disallowed in any of the following cases:
(a) If not executed and attested as required by
law;
(b) If the testator was insane, or otherwise
mentally incapable to make a will, at the time of its
execution;
(c) If it was executed under duress, or the
influence of fear, or threats;
(d) If it was procured by undue and improper
pressure and influence, on the part of the
beneficiary, or of some other person for his
benefit;
(e) If the signature of the testator was procured by
fraud or trick, and he did not intend that the
instrument should be his will at the time of fixing
his signature thereto.
In the same vein, Article 839 of the New Civil Code reads:
Art. 839: The will shall be disallowed in any of the
following cases;
(1) If the formalities required by law
have not been complied with;
(2) If the testator was insane, or
otherwise mentally incapable of making
a will, at the time of its execution;
(3) If it was executed through force or
under duress, or the influence of fear, or
threats;
(4) If it was procured by undue and
improper pressure and influence, on the
part of the beneficiary or of some other
person;
(5) If the signature of the testator was
procured by fraud;
(6) If the testator acted by mistake or did
not intend that the instrument he signed
should be his will at the time of affixing
his signature thereto.
These lists are exclusive; no other grounds can serve to
disallow a will. 5 Thus, in a petition to admit a holographic will
to probate, the only issues to be resolved are: (1) whether
the instrument submitted is, indeed, the decedent's last will
and testament; (2) whether said will was executed in
accordance with the formalities prescribed by law; (3)
whether the decedent had the necessary testamentary
capacity at the time the will was executed; and, (4) whether
the execution of the will and its signing were the voluntary
acts of the decedent. 6
In the case at bench, respondent court held that the
holographic will of Anne Sand was not executed in
accordance with the formalities prescribed by law. It held
that Articles 813 and 814 of the New Civil Code, ante, were
not complied with, hence, it disallowed the probate of said
will. This is erroneous.
We reiterate what we held in Abangan vs. Abangan, 40 Phil.
476, 479 (1919), that:
The object of the solemnities surrounding the
execution of wills is to close the door against bad
faith and fraud, to avoid substitution of wills and
testaments and to guaranty their truth and
authenticity. Therefore, the laws on this subject
should be interpreted in such a way as to attain
these primordial ends. But, on the other hand, also
one must not lose sight of the fact that it is not the
object of the law to restrain and curtail the
exercise of the right to make a will. So when an
interpretation already given assures such ends,
any other interpretation whatsoever, that adds
nothing but demands more requisites entirely
unnecessary, useless and frustrative of the
testator's last will, must be disregarded.
For purposes of probating non-holographic wills, these
formal solemnities include the subscription, attestation, and
acknowledgment requirements under Articles 805 and 806 of
the New Civil Code.
In the case of holographic wills, on the other hand, what
assures authenticity is the requirement that they be totally
autographic or handwritten by the testator himself, 7 as
provided under Article 810 of the New Civil Code, thus:
A person may execute a holographic will
which must be entirely written, dated,
and signed by the hand of the testator
himself. It is subject to no other form,
and may be made in or out of the
Philippines, and need not be witnessed.
(Emphasis supplied.)
Failure to strictly observe other formalities will not
result in the disallowance of a holographic will that
is unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its
requirement affects the validity of the dispositions contained
in the holographic will, but not its probate. If the testator fails
to sign and date some of the dispositions, the result is that
these dispositions cannot be effectuated. Such failure,
however, does not render the whole testament void.
Likewise, a holographic will can still be admitted to probate,
notwithstanding non-compliance with the provisions of Article
814. In the case of Kalaw vs. Relova 132 SCRA 237
242 (1984), this Court held:
Ordinarily, when a number of erasures,
corrections, and interlineations made by the
testator in a holographic Will have not been noted
under his signature, . . . the Will is not thereby
invalidated as a whole, but at most only as
respects the particular words erased, corrected or
interlined. Manresa gave an identical commentary
when he said "la omission de la salvedad no anula
el testamento, segun la regla de jurisprudencia
establecida en la sentencia de 4 de Abril de
1985." 8 (Citations omitted.)
Thus, unless the unauthenticated alterations, cancellations
or insertions were made on the date of the holographic will
or on testator's signature, 9 their presence does not
invalidate the will itself. 10 The lack of authentication will only
result in disallowance of such changes.
It is also proper to note that the requirements of
authentication of changes and signing and dating of
dispositions appear in provisions (Articles 813 and 814)
separate from that which provides for the necessary
conditions for the validity of the holographic will (Article 810).
The distinction can be traced to Articles 678 and 688 of the
Spanish Civil Code, from which the present provisions
covering holographic wills are taken. They read as follows:
Art. 678: A will is called holographic when the
testator writes it himself in the form and with the
requisites required in Article 688.
Art. 688: Holographic wills may be executed only
by persons of full age.
In order that the will be valid it must be drawn on
stamped paper corresponding to the year of its
execution, written in its entirety by the testator and
signed by him, and must contain a statement of
the year, month and day of its execution.
If it should contain any erased, corrected, or
interlined words, the testator must identify them
over his signature.
Foreigners may execute holographic wills in their
own language.
This separation and distinction adds support to the
interpretation that only the requirements of Article 810 of the
New Civil Code — and not those found in Articles 813 and
814 of the same Code — are essential to the probate of a
holographic will.
The Court of Appeals further held that decedent Annie Sand
could not validly dispose of the house and lot located in
Cabadbaran, Agusan del Norte, in its entirety. This is correct
and must be affirmed.
As a general rule, courts in probate proceedings are limited
to pass only upon the extrinsic validity of the will sought to
be probated. However, in exceptional instances, courts are
not powerless to do what the situation constrains them to do,
and pass upon certain provisions of the will. 11 In the case at
bench, decedent herself indubitably stated in her holographic
will that the Cabadbaran property is in the name of her late
father, John H. Sand (which led oppositor Dr. Jose Ajero to
question her conveyance of the same in its entirety). Thus,
as correctly held by respondent court, she cannot validly
dispose of the whole property, which she shares with her
father's other heirs.
IN VIEW WHEREOF, the instant petition is GRANTED. The
Decision of the Court of Appeals in CA-G.R. CV No. 22840,
dated March 30, 1992, is REVERSED and SET ASIDE,
except with respect to the invalidity of the disposition of the
entire house and lot in Cabadbaran, Agusan del Norte. The
Decision of the Regional Trial Court of Quezon City, Branch
94 in Sp. Proc. No. Q-37171, dated November 19, 1988,
admitting to probate the holographic will of decedent Annie
Sand, is hereby REINSTATED, with the above qualification
as regards the Cabadbaran property. No costs.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Mendoza,
JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-12190 August 30, 1958
TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-
YAP deceased. FAUSTO E. GAN, petitioner-appellant,
vs.
ILDEFONSO YAP, oppositor-appellee.
BENGZON, J.:
On November 20, 1951, Felicidad Esguerra Alto Yap died of
heart failure in the University of Santo Tomas Hospital,
leaving properties in Pulilan, Bulacan, and in the City of
Manila.
On March 17, 1952, Fausto E. Gan initiated them
proceedings in the Manila court of first instance with a
petition for the probate of a holographic will allegedly
executed by the deceased, substantially in these words:
Nobyembre 5, 1951.
Ako, si Felicidad E. Alto-Yap, may asawa, at
ganap na pag-iisip, ay nagsasalaysay na ang
aking kayamanan sa bayan ng Pulilan, Bulacan ay
aking ipinamamana sa aking mga kamag-anakang
sumusunod:
Vicente Esguerra, Sr. ........................... 5 Bahagi
Fausto E. Gan ................................ 2 Bahagi
Rosario E. Gan ................................ 2 Bahagi
Filomena Alto .................................. 1 Bahagi
Beatriz Alto .................................... 1 Bahagi
At ang aking lahat ng ibang kayamanan sa
Maynila at iba panglugar ay aking ipinamamana
sa aking asawang si Idelfonso D. Yap sa
kondisyong siya'y magpapagawa ng isang Health
Center na nagkakahalaga ng di kukulangin sa
halagang P60,000.00 sa bayan ng Pulilan,
Bulacan, na nakaukit ang aking pangalang
Felicidad Esguerra-Alto. At kung ito ay may
kakulangan man ay bahala na ang aking asawa
ang magpuno upang matupad ang aking
kagustuhan.
(Lagda) Felicidad E. Alto-Yap.
Opposing the petition, her surviving husband Ildefonso Yap
asserted that the deceased had not left any will, nor
executed any testament during her lifetime.
After hearing the parties and considering their evidence, the
Hon. Ramon R. San Jose, Judge,1 refused to probate the
alleged will. A seventy-page motion for reconsideration
failed. Hence this appeal.
The will itself was not presented. Petitioner tried to establish
its contents and due execution by the statements in open
court of Felina Esguerra, Primitivo Reyes, Socorro Olarte
and Rosario Gan Jimenez, whose testimonies may be
summarized as follows:
Sometime in 1950 after her last trip abroad, Felicidad
Esguerra mentioned to her first cousin, Vicente Esguerra,
her desire to make a will. She confided however that it would
be useless if her husband discovered or knew about it.
Vicente consulted with Fausto E. Gan, nephew of Felicidad,
who was then preparing for the bar examinations. The latter
replied it could be done without any witness, provided the
document was entirely in her handwriting, signed and dated
by her. Vicente Esguerra lost no time in transmitting the
information, and on the strength of it, in the morning of
November 5, 1951, in her residence at Juan Luna Street,
Manila, Felicidad wrote, signed and dated a holographic will
substantially of the tenor above transcribed, in the presence
of her niece, Felina Esguerra (daughter of Vicente), who was
invited to read it. In the afternoon of that day, Felicidad was
visited by a distant relative, Primitivo Reyes, and she
allowed him to read the will in the presence of Felina
Esguerra, who again read it.
Nine days later, he had other visitors: Socorro Olarte a
cousin, and Rosario Gan Jimenez, a niece. To these she
showed the will, again in the presence of Felina Esguerra,
who read it for the third time.
When on November 19, 1951, Felicidad was confined at the
U.S.T. Hospital for her last illness, she entrusted the said
will, which was contained in a purse, to Felina Esguerra. But
a few hours later, Ildefonso Yap, her husband, asked Felina
for the purse: and being afraid of him by reason of his well-
known violent temper, she delivered it to him. Thereafter, in
the same day, Ildefonso Yap returned the purse to Felina,
only to demand it the next day shortly before the death of
Felicidad. Again, Felina handed it to him but not before she
had taken the purse to the toilet, opened it and read the will
for the last time.2
From the oppositor's proof it appears that Felicidad Esguerra
had been suffering from heart disease for several years
before her death; that she had been treated by prominent
physicians, Dr. Agerico Sison, Dr. Agustin Liboro and others;
that in May 1950 husband and wife journeyed to the United
States wherein for several weeks she was treated for the
disease; that thereafter she felt well and after visiting
interesting places, the couple returned to this country in
August 1950. However, her ailment recurred, she suffered
several attacks, the most serious of which happened in the
early morning of the first Monday of November 1951 (Nov.
5). The whole household was surprised and alarmed, even
the teachers of the Harvardian Colleges occupying the lower
floors and of by the Yap spouses. Physician's help was
hurriedly called, and Dr. Tanjuaquio arrived at about 8:00
a.m., found the patient hardly breathing, lying in bed, her
head held high by her husband. Injections and oxygen were
administered. Following the doctor's advice the patient
stayed in bed, and did nothing the whole day, her husband
and her personal attendant, Mrs. Bantique, constantly at her
side. These two persons swore that Mrs. Felicidad Esguerra
Yap made no will, and could have made no will on that day.
The trial judge refused to credit the petitioner's evidence for
several reasons, the most important of which were these: (a)
if according to his evidence, the decedent wanted to keep
her will a secret, so that her husband would not know it, it is
strange she executed it in the presence of Felina Esguerra,
knowing as she did that witnesses were unnecessary; (b) in
the absence of a showing that Felina was a confidant of the
decedent it is hard to believe that the latter would have
allowed the former to see and read the will several times; (c)
it is improbable that the decedent would have permitted
Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte to
read her will, when she precisely wanted its contents to
remain a secret during her lifetime; (d) it is also improbable
that her purpose being to conceal the will from her husband
she would carry it around, even to the hospital, in her purse
which could for one reason or another be opened by her
husband; (e) if it is true that the husband demanded the
purse from Felina in the U.S.T. Hospital and that the will was
there, it is hard to believe that he returned it without
destroying the will, the theory of the petitioner being
precisely that the will was executed behind his back for fear
he will destroy it.
In the face of these improbabilities, the trial judge had to
accept the oppositor's evidence that Felicidad did not and
could not have executed such holographic will.
In this appeal, the major portion of appellant's brief
discussed the testimony of the oppositor and of his
witnesses in a vigorous effort to discredit them. It appears
that the same arguments, or most of them, were presented
in the motion to reconsider; but they failed to induce the
court a quo to change its mind. The oppositor's brief, on the
other hand, aptly answers the criticisms. We deem it
unnecessary to go over the same matters, because in our
opinion the case should be decided not on the weakness of
the opposition but on the strength of the evidence of the
petitioner, who has the burden of proof.
The Spanish Civil Code permitted the execution of
holographic wills along with other forms. The Code of Civil
Procedure (Act 190) approved August 7, 1901, adopted only
one form, thereby repealing the other forms, including
holographic wills.
The New Civil Code effective in 1950 revived holographic
wills in its arts. 810-814. "A person may execute a
holographic will which must be entirely written, dated, and
signed by the hand of the testator himself. It is subject to no
other form and may be made in or out of the Philippines, and
need not be witnessed."
This is indeed a radical departure from the form and
solemnities provided for wills under Act 190, which for fifty
years (from 1901 to 1950) required wills to be subscribed by
the testator and three credible witnesses in each andevery
page; such witnesses to attest to the number of sheets used
and to the fact that the testator signed in their presence and
that they signed in the presence of the testator and of each
other.
The object of such requirements it has been said, is to close
the door against bad faith and fraud, to prevent substitution
of wills, to guarantee their truth and authencity
(Abangan vs. Abangan, 40 Phil., 476) and to avoid those
who have no right to succeed the testator would succeed
him and be benefited with the probate of same.
(Mendoza vs. Pilapil, 40 Off. Gaz., 1855). However, formal
imperfections may be brushed aside when authenticity of the
instrument is duly proved. (Rodriguez vs Yap, 40 Off. Gaz.
1st Supp. No. 3 p. 194.)
Authenticity and due execution is the dominant requirements
to be fulfilled when such will is submitted to the courts for
allowance. For that purpose the testimony of one of the
subscribing witnesses would be sufficient if there is no
opposition (Sec. 5, Rule 77). If there is, the three must
testify, if available. (Cabang vs. Delfinado, 34 Phil., 291;
Tolentino vs. Francisco, 57 Phil., 742). From the testimony of
such witnesses (and of other additional witnesses) the court
may form its opinion as to the genuineness and authenticity
of the testament, and the circumstances its due execution.
Now, in the matter of holographic wills, no such guaranties of
truth and veracity are demanded, since as stated, they need
no witnesses; provided however, that they are "entirely
written, dated, and signed by the hand of the testator
himself." The law, it is reasonable to suppose, regards the
document itself as material proof of authenticity, and as its
own safeguard, since it could at any time, be demonstrated
to be — or not to be — in the hands of the testator himself.
"In the probate of a holographic will" says the New Civil
Code, "it shall be necessary that at least one witness who
knows the handwriting and signature of the testator explicitly
declare that the will and the signature are in the handwriting
of the testator. If the will is contested, at least three such
witnesses shall be required. In the absence of any such
witnesses, (familiar with decedent's handwriting) and if the
court deem it necessary, expert testimony may be resorted
to."
The witnesses so presented do not need to have seen the
execution of the holographic will. They may be mistaken in
their opinion of the handwriting, or they may deliberately lie
in affirming it is in the testator's hand. However, the
oppositor may present other witnesses who also know the
testator's handwriting, or some expert witnesses, who after
comparing the will with other writings or letters of the
deceased, have come to the conclusion that such will has
not been written by the hand of the deceased. (Sec. 50, Rule
123). And the court, in view of such contradictory testimony
may use its own visual sense, and decide in the face of the
document, whether the will submitted to it has indeed been
written by the testator.
Obviously, when the will itself is not submitted, these means
of opposition, and of assessing the evidence are not
available. And then the only guaranty of authenticity3 — the
testator's handwriting — has disappeared.
Therefore, the question presents itself, may a holographic
will be probated upon the testimony of witnesses who have
allegedly seen it and who declare that it was in the
handwriting of the testator? How can the oppositor prove
that such document was not in the testator's handwriting?
His witnesses who know testator's handwriting have not
examined it. His experts can not testify, because there is no
way to compare the alleged testament with other documents
admittedly, or proven to be, in the testator's hand. The
oppositor will, therefore, be caught between the upper
millstone of his lack of knowledge of the will or the form
thereof, and the nether millstone of his inability to prove its
falsity. Again the proponent's witnesses may be honest and
truthful; but they may have been shown a faked document,
and having no interest to check the authenticity thereof have
taken no pains to examine and compare. Or they may be
perjurers boldly testifying, in the knowledge that none could
convict them of perjury, because no one could prove that
they have not "been shown" a document which they
believed was in the handwriting of the deceased. Of course,
the competency of such perjured witnesses to testify as to
the handwriting could be tested by exhibiting to them other
writings sufficiently similar to those written by the deceased;
but what witness or lawyer would not foresee such a move
and prepare for it? His knowledge of the handwriting
established, the witness (or witnesses) could simply stick to
his statement: he has seen and read a document which he
believed was in the deceased's handwriting. And the court
and the oppositor would practically be at the mercy of such
witness (or witnesses) not only as to the execution, but also
as to the contents of the will. Does the law permit such a
situation?
The Rules of Court, (Rule 77) approved in 1940 allow proof
(and probate) of a lost or destroyed will by secondary —
evidence the testimony of witnesses, in lieu of the original
document. Yet such Rules could not have contemplated
holographic wills which could not then be validly made here.
(See also Sec. 46, Rule 123; Art. 830-New Civil Code.)
Could Rule 77 be extended, by analogy, to holographic
wills?
Spanish commentators agree that one of the greatest
objections to the holographic will is that it may be lost or
stolen4 — an implied admission that such loss or theft
renders it useless..
This must be so, because the Civil Code requires it to be
protocoled and presented to the judge, (Art. 689) who shall
subscribe it and require its identity to be established by the
three witnesses who depose that they have no reasonable
doubt that the will was written by the testator (Art. 691). And
if the judge considers that the identity of the will has been
proven he shall order that it be filed (Art. 693). All these,
imply presentation of the will itself. Art. 692 bears the same
implication, to a greater degree. It requires that the surviving
spouse and the legitimate ascendants and descendants be
summoned so that they may make "any statement they may
desire to submit with respect to the authenticity of the will."
As it is universally admitted that the holographic will is
usually done by the testator and by himself alone, to prevent
others from knowing either its execution or its contents, the
above article 692 could not have the idea of simply
permitting such relatives to state whether they know of the
will, but whetherin the face of the document itself they think
the testator wrote it. Obviously, this they can't do unless the
will itself is presented to the Court and to them.
Undoubtedly, the intention of the law is to give the near
relatives the choice of either complying with the will if they
think it authentic, or to oppose it, if they think it
spurious.5 Such purpose is frustrated when the document is
not presented for their examination. If it be argued that such
choice is not essential, because anyway the relatives may
oppose, the answer is that their opposition will be at a
distinct disadvantage, and they have the right and privilegeto
comply with the will, if genuine, a right which they should not
be denied by withholding inspection thereof from them.
We find confirmation of these ideas--about exhibition of the
document itself--in the decision of the Supreme Court of
Spain of June 5, 1925, which denied protocolization or
probate to a document containing testamentary dispositions
in the handwriting of the deceased, but apparently
mutilated, the signature and some words having been torn
from it. Even in the face of allegations and testimonial
evidence (which was controverted), ascribing the mutilation
to the opponents of the will. The aforesaid tribunal declared
that, in accordance with the provision of the Civil Code
(Spanish) the will itself, whole and unmutilated, must be
presented; otherwise, it shall produce no effect.
Considerando que sentado lo anterior, y
estableciendose en el parrafo segundo del articulo
688 del Codigo civil, que para que sea valido el
testamento olografo debera estar escrito todo el y
firmado por testador, con expression del año, mes
y dia en que se otorque, resulta evidente que para
la validez y eficacia de esos testamentos, no
basta la demostracion mas o menos cumplida de
que cuando se otorgaron se Ilenaron todos esos
requisitos, sino que de la expresada redaccion el
precepto legal, y por el tiempo en que el verbo se
emplea, se desprende la necesidad de que el
documento se encuentre en dichas condiciones
en el momento de ser presentado a la Autoridad
competente, para au adveracion y protocolizacion;
y como consecuencia ineludible de ello, forzoso
es affirmar que el de autos carece de validez y
aficacia, por no estarfirmado por el testador,
cualquiera que sea la causa de la falta de firma, y
sin perjuicio de las acciones que puedan ejercitar
los perjudicados, bien para pedir indemnizacion
por el perjuicio a la persona culpable, si la
hubiere, o su castigo en via criminal si procediere,
por constituir dicha omision un defecto
insubsanable . . . .
This holding aligns with the ideas on holographic wills in the
Fuero Juzgo, admittedly the basis of the Spanish Civil Code
provisions on the matter.6
PRECEDENTES LEGALES--Fuero Juzgo, libro
segundo, titulo V, ley 15--E depues que los
herederos e sus fijos ovieren esta manda, fasta ...
annos muestrenla al obispo de la tierra, o al juez
fasta VI meses y el obispo o el juez tomen otros
tales tres escritos, que fuesen fechos por su mano
 daquel que fizo la manda; e por aquellos
escriptos, si semjara la letra de la manda, sea
confirmada la manda. E depues que todo esto
fuere connoscido, el obispo o el juez, o otras
testimonios confirmen el escripto de la manda otra
vez, y en esta manera vala la manda. (Art. 689,
Scaevola--Codigo Civil.)
(According to the Fuero above, the will itself must be
compared with specimens of the testators handwriting.)
All of which can only mean: the courts will not distribute the
property of the deceased in accordance with his holographic
will, unless they are shown his handwriting and signature.7
Parenthetically, it may be added that even the French Civil
Law considers the loss of the holographic will to be fatal.
(Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz
Cruz, 1946, Tomo V, page 555).
Taking all the above circumstances together, we reach the
conclusion that the execution and the contents of a lost or
destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such
will.8
Under the provisions of Art. 838 of the New Civil Code, we
are empowered to adopt this opinion as a Rule of Court for
the allowance of such holographic wills. We hesitate,
however, to make this Rule decisive of this controversy,
simultaneously with its promulgation. Anyway, decision of
the appeal may rest on the sufficiency, rather the
insufficiency, of the evidence presented by petitioner Fausto
E. Gan.
At this point, before proceeding further, it might be
convenient to explain why, unlike holographic wills, ordinary
wills may be proved by testimonial evidence when lost or
destroyed. The difference lies in the nature of the wills. In the
first, the only guarantee of authenticity is the handwriting
itself; in the second, the testimony of the subscribing or
instrumental witnesses (and of the notary, now). The loss of
the holographic will entails the loss of the only medium of
proof; if the ordinary will is lost, the subscribing witnesses
are available to authenticate.
In the case of ordinary wills, it is quite hard to convince three
witnesses (four with the notary) deliberately to lie. And then
their lies could be checked and exposed, their whereabouts
and acts on the particular day, the likelihood that they would
be called by the testator, their intimacy with the testator, etc.
And if they were intimates or trusted friends of the testator
they are not likely to end themselves to any fraudulent
scheme to distort his wishes. Last but not least, they can not
receive anything on account of the will.
Whereas in the case of holographic wills, if oral testimony
were admissible9 only one man could engineer the fraud this
way: after making a clever or passable imitation of the
handwriting and signature of the deceased, he may contrive
to let three honest and credible witnesses see and read the
forgery; and the latter, having no interest, could easily fall for
it, and in court they would in all good faith affirm its
genuineness and authenticity. The will having been lost —
the forger may have purposely destroyed it in an "accident"
— the oppositors have no way to expose the trick and the
error, because the document itself is not at hand. And
considering that the holographic will may consist of two or
three pages, and only one of them need be signed, the
substitution of the unsigned pages, which may be the most
important ones, may go undetected.
If testimonial evidence of holographic wills be permitted, one
more objectionable feature — feasibility of forgery — would
be added to the several objections to this kind of wills listed
by Castan, Sanchez Roman and Valverde and other well-
known Spanish Commentators and teachers of Civil Law. 10
One more fundamental difference: in the case of a lost will,
the three subscribing witnesses would be testifying to a
fact which they saw, namely the act of the testator of
subscribing the will; whereas in the case of a lost
holographic will, the witnesses would testify as to their
opinion of the handwriting which they allegedly saw, an
opinion which can not be tested in court, nor directly
contradicted by the oppositors, because the handwriting
itself is not at hand.
Turning now to the evidence presented by the petitioner, we
find ourselves sharing the trial judge's disbelief. In addition to
the dubious circumstances described in the appealed
decision, we find it hard to believe that the deceased should
show her will precisely to relatives who had received nothing
from it: Socorro Olarte and Primitivo Reyes. These could
pester her into amending her will to give them a share, or
threaten to reveal its execution to her husband Ildefonso
Yap. And this leads to another point: if she wanted so much
to conceal the will from her husband, why did she not entrust
it to her beneficiaries? Opportunity to do so was not lacking:
for instance, her husband's trip to Davao, a few days after
the alleged execution of the will.
In fine, even if oral testimony were admissible to establish
and probate a lost holographic will, we think the evidence
submitted by herein petitioner is so tainted with
improbabilities and inconsistencies that it fails to measure up
to that "clear and distinct" proof required by Rule 77, sec.
6.11
Wherefore, the rejection of the alleged will must be
sustained.
Judgment affirmed, with costs against petitioner.
Paras, C. J., Padilla, Montemayor, Reyes, A., Bautista
Angelo, Concepcion, Reyes, J. B. L., Endencia and Felix,
JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-58509 December 7, 1982
IN THE MATTER OF THE PETITION TO APPROVE THE
WILL OF RICARDO B. BONILLA deceased, MARCELA
RODELAS, petitioner-appellant,
vs.
 AMPARO ARANZA, ET AL., oppositors-appellees, ATTY.
LORENZO SUMULONG, intervenor.
RELOVA, J.:
This case was certified to this Tribunal by the Court of
Appeals for final determination pursuant to Section 3, Rule
50 of the Rules of Court.
As found by the Court of Appeals:
... On January 11, 1977, appellant filed a petition
with the Court of First Instance of Rizal for the
probate of the holographic will of Ricardo B.
Bonilla and the issuance of letters testamentary in
her favor. The petition, docketed as Sp. Proc. No.
8432, was opposed by the appellees Amparo
Aranza Bonilla, Wilferine Bonilla Treyes Expedita
Bonilla Frias and Ephraim Bonilla on the following
grounds:
(1) Appellant was estopped from claiming that the
deceased left a will by failing to produce the will
within twenty days of the death of the testator as
required by Rule 75, section 2 of the Rules of
Court;
(2) The alleged copy of the alleged holographic
will did not contain a disposition of property after
death and was not intended to take effect after
death, and therefore it was not a will
(3) The alleged hollographic will itself,and not an
alleged copy thereof, must be produced, otherwise
it would produce no effect, as held in Gam v. Yap,
104 Phil. 509; and
(4 ) The deceased did not leave any will,
holographic or otherwise, executed and attested
as required by law.
The appellees likewise moved for the
consolidation of the case with another case Sp.
Proc. No, 8275). Their motion was granted by the
court in an order dated April 4, 1977.
On November 13, 1978, following the
consolidation of the cases, the appellees moved
again to dismiss the petition for the probate of the
will. They argued that:
(1) The alleged holographic was not a last will but
merely an instruction as to the management and
improvement of the schools and colleges founded
by decedent Ricardo B. Bonilla; and
(2) Lost or destroyed holographic wills cannot be
proved by secondary evidence unlike ordinary
wills.
Upon opposition of the appellant, the motion to
dismiss was denied by the court in its order of
February 23, 1979.
The appellees then filed a motion for
reconsideration on the ground that the order was
contrary to law and settled pronouncements and
rulings of the Supreme Court, to which the
appellant in turn filed an opposition. On July 23,
1979, the court set aside its order of February 23,
1979 and dismissed the petition for the probate of
the will of Ricardo B. Bonilla. The court said:
... It is our considered opinion that once the
original copy of the holographic will is lost, a copy
thereof cannot stand in lieu of the original.
In the case of Gam vs. Yap, 104 Phil. 509, 522,
the Supreme Court held that 'in the matter of
holographic wills the law, it is reasonable to
suppose, regards the document itself as the
material proof of authenticity of said wills.
MOREOVER, this Court notes that the alleged
holographic will was executed on January 25,
1962 while Ricardo B. Bonilla died on May 13,
1976. In view of the lapse of more than 14 years
from the time of the execution of the will to the
death of the decedent, the fact that the original of
the will could not be located shows to our mind
that the decedent had discarded before his death
his allegedly missing Holographic Will.
Appellant's motion for reconsideration was denied. Hence,
an appeal to the Court of Appeals in which it is contended
that the dismissal of appellant's petition is contrary to law
and well-settled jurisprudence.
On July 7, 1980, appellees moved to forward the case to this
Court on the ground that the appeal does not involve
question of fact and alleged that the trial court committed the
following assigned errors:
I. THE LOWER COURT ERRED IN HOLDING
THAT A LOST HOLOGRAPHIC WILL MAY NOT
BE PROVED BY A COPY THEREOF;
II. THE LOWER COURT ERRED IN HOLDING
THAT THE DECEDENT HAS DISCARDED
BEFORE HIS DEATH THE MISSING
HOLOGRAPHIC WILL;
III. THE LOWER COURT ERRED IN DISMISSING
APPELLANT'S WILL.
The only question here is whether a holographic will which
was lost or cannot be found can be proved by means of a
photostatic copy. Pursuant to Article 811 of the Civil Code,
probate of holographic wills is the allowance of the will by the
court after its due execution has been proved. The probate
may be uncontested or not. If uncontested, at least one
Identifying witness is required and, if no witness is available,
experts may be resorted to. If contested, at least three
Identifying witnesses are required. However, if the
holographic will has been lost or destroyed and no other
copy is available, the will can not be probated because the
best and only evidence is the handwriting of the testator in
said will. It is necessary that there be a comparison between
sample handwritten statements of the testator and the
handwritten will. But, a photostatic copy or xerox copy of the
holographic will may be allowed because comparison can be
made with the standard writings of the testator. In the case
of Gam vs. Yap, 104 PHIL. 509, the Court ruled that "the
execution and the contents of a lost or destroyed
holographic will may not be proved by the bare testimony of
witnesses who have seen and/or read such will. The will
itself must be presented; otherwise, it shall produce no
effect. The law regards the document itself as material proof
of authenticity." But, in Footnote 8 of said decision, it says
that "Perhaps it may be proved by a photographic or
photostatic copy. Even a mimeographed or carbon copy; or
by other similar means, if any, whereby the authenticity of
the handwriting of the deceased may be exhibited and tested
before the probate court," Evidently, the photostatic or xerox
copy of the lost or destroyed holographic will may be
admitted because then the authenticity of the handwriting of
the deceased can be determined by the probate court.

WHEREFORE, the order of the lower court dated October 3,

1979, denying appellant's motion for reconsideration dated
August 9, 1979, of the Order dated July 23, 1979, dismissing
her petition to approve the will of the late Ricardo B. Bonilla,
is hereby SET ASIDE.

SO ORDERED.

Teehankee, Actg. C.J., Melencio-Herrera, Plana, Vasquez

and Gutierrez, Jr., JJ., concur.