SUCCESSION
Case Digests
Assoc. Dean Viviana M. Paguirigan
Uson vs Del Rosario
92 Phil 531
Facts: This is an action for the recovery of the ownership and
possession of 5 parcels of land situated in Pangasinan, filed by
Maria Uson against Maria del Rosario and her 4 children who are
all of minor age. Maria Uson was the lawful wife of Faustino
Nebreda who upon his death in 1945 left the lands involved in this
litigation. Faustino Nebreda left no other heir except his widow
Maria Uson. However, plaintiff claims that when
Faustino Nebreda died in 1945, his common-law wife Maria del
Rosario took possession illegally of said lands thus depriving her
of their possession and enjoyment.
Defendants in their answer set up as special defense that on
February 21, 1931, Maria Uson and her husband, executed a public
document whereby they agreed to separate as husband and wife
and, in consideration of their separation, Maria Uson was given a
parcel of land by way of alimony and in return she renounced her
right to inherit any other property that may be left by her husband
upon his death.
After trial, at which both parties presented their respective
evidence, the court rendered decision ordering the defendants to
restore to Maria Uson the ownership and possession of the lands
in dispute.
Defendants also contend that under the New Civil Code which
became in force in 1950 they are given the status and rights of
natural children and are entitled to the successional rights which
the law accords to the latter and because these successional rights
were declared for the first time in the new code, they shall be
given retroactive effect even though the event which gave rise to
them may have occurred under the prior legislation.
Issues: (1) To whom the right of ownership of the 5 parcel of
lands belong?
(2) Whether the illegitimate children have successional rights
Held: (1) There is no dispute that Maria Uson is the lawful wife of
Faustino Nebreda, former owner of the 5 parcels of lands litigated
in the present case. There is likewise no dispute that Maria del
Rosario was merely a common-law wife of the late Faustino
Nebreda with whom she had four illegitimate children.
It likewise appears that Faustino Nebreda died in 1945 much prior
to the effectivity of the new Civil Code. With this background, it is
evident that when Faustino Nebreda died in 1945 the five parcels
of land he was seized of at the time passed from the moment of his
death to his only heir, his widow Maria Uson.
As this Court aptly said, "The property belongs to the heirs at the
moment of the death of the ancestor as completely as if the
ancestor had executed and delivered to them a deed for the same
before his death". From that moment, therefore, the rights of
inheritance of Maria Uson over the lands in question became
vested.
The claim of the defendants that Maria Uson had relinquished her
right over the lands in question because she expressly renounced
to inherit any future property that her husband may acquire and
leave upon his death in the deed of separation they had entered
into on February 21,
1931, cannot be entertained for the simple reason that future
inheritance cannot be the subject of a contract nor can it be
renounced.
(2) No. Article 2253 provides indeed that rights which are
declared for the first time shall have retroactive effect even though
the event which gave rise to them may have occurred under the
former legislation, but this is so only when the new rights do not
prejudice any vested or acquired right of the same origin. Thus,
said article provides that "if a right should be declared for the first
time in this Code, it shall be effective at once, even though the act
or event which gives rise thereto may have been done or may have
occurred under the prior legislation, provided said new right does
not prejudice or impair any vested or acquired right, of the same
origin." As already stated in the early part of this decision, the
right of ownership of Maria Uson over the lands in question
became vested in 1945 upon the death of her late husband and
this is so because of the imperative provision of the law which
commands that the rights to succession are transmitted from the
moment of death. The new right recognized by the new Civil Code
in favor of the illegitimate children of the deceased cannot,
therefore, be asserted to the impairment of the vested right of
Maria Uson over the lands in dispute.
Coronel vs CA
263 SCRA 15
Facts: The Coronels executed a document entitled “Receipt of
Down Payment” in favor of plaintiff Ramona Patricia Alcaraz in the
sum of Php50,000.00. 00.
Clearly, the conditions appurtenant to the sale are the following:
1. Ramona will make a down payment of P50,000.00 upon
execution of the document aforestated;
2. The Coronels will cause the transfer in their names of the title of
the property registered in the name of their deceased father upon
receipt of the P50,000.00 down payment;
3. Upon the transfer in their names of the subject property, the
Coronels will execute the deed of absolute sale in favor of Ramona
and the latter will pay the former the whole balance of
P1,190,000.00
On the same date (January 15, 1985), Concepcion D. Alcaraz,
mother of Ramona, paid the down payment of P50,000.00.
On February 6, 1985, the property originally registered in the
name of the Coronel’s father was transferred in their names under
TCT.
However, on February 18, 1965, 5, the Coronels sold the property
covered to intervenor appellant Catalina B. Mabanag
P1,580,000.00 after the latter has paid P300,000.00.
For this reason, Coronels canceled and rescinded the contract with
Ramona by depositing the down payment paid by Concepcion in
the bank in trust for Ramona Patricia Alcaraz.
On February 22, 1985, Concepcion, et al., filed a complaint for
specific performance against the Coronels and caused the
annotation of a notice of lis pendens at the back of TCT.
Catalina caused the annotation of a notice of adverse claim
covering the same property with the Registry of Deeds of Quezon
City.
On April 25, 1985, the Coronels executed a Deed of Absolute Sale
over the subject property in favor of Catalina and thereafter a new
title over the subject property was issued in the name of Catalina.
Issue: Whether the petitioners were not yet the absolute owners
of the inherited property at the time when the contract of sale was
executed
Held: Yes. Article 774 of the Civil Code defines Succession as a
mode of transferring ownership as follows:
Art. 774. Succession is a mode of acquisition by virtue of which
the property, rights and obligations to the extent and value of the
inheritance of a person are transmitted through his death to
another or others by his will or by operation of law.
Petitioners sellers in the case at bar being the sons and daughters
of the decedent Constancio P. Coronel are compulsory heirs who
were called to succession by operation of law. Thus, at the point
their father drew his last breath, petitioners stepped into his shoes
insofar as the subject property is concerned, such that any rights
or obligations pertaining thereto became binding and enforceable
upon them. It is expressly provided that rights to the succession
are transmitted from the moment of death of the decedent.
Be it also noted that petitioners’ claim that succession may not be
declared unless the creditors have been paid is rendered moot by
the fact that they were able to effect the transfer of the title to the
property from the decedent’s name to their names on February 6,
1985.
Litonjua vs Montilla
90 Phil 757
Facts: Litonjua obtained a judgment against Claudio Montilla for
the payment of the sum of P4.000 with legal interest, plus costs
amounting to P39.00.
In due time, a writ of execution was issued, but no property of
Claudio Montilla was found which could be levied upon.
On June 12, 1950, Litonjua filed in Special Proceeding, Intestate
Estate of Agustin Montilla, Sr., deceased, a motion praying that the
interest, property and participation of Claudio Montilla, one of the
heirs of Agustin Montilla, Sr., in the latter's intestate estate be sold
and out of the proceeds the judgment debt of Claudio Montilla in
favor of Litonjua be paid. This motion was opposed by Claudio
Montilla and by Agustin Montilla, Jr., administrator of the intestate
estate.
Issue: Whether a person not a creditor of the deceased has the
right to intervene in the proceedings brought in connection with
the estate or the settlement of the succession
Held: No. In the case of Ortiga Brothers & Co. vs. Enage and Yap
Tico, it was held 'that the creditor of the heirs of a deceased
person is entitled to collect his claim out of the property
which pertains by inheritance to said heirs, only after all the
debts of the testate or intestate succession have been paid
and when the net assets that are divisible among the heirs
are known, because the debts of the deceased must first be
paid before his heirs can inherit. It was therein also held that a
person who is not a creditor of a deceased, testate or intestate, has
no right to intervene either in the proceedings brought in
connection with the estate or in the settlement of the succession.
We quote hereunder pertinent passages of the decision:
"A person who, having a claim against a deceased person which
should be considered by the committee does not, after publication
of the required notice, exhibit his claim to the committee as
provided by law, shall be barred from recovering such demand or
from pleading the same as an offset to any action, under the
provision of section 695 of the Code of Civil Procedure, excepting
the case referred to in Section 701 of the same; with still less
reason can one who is not a creditor of the said deceased
intervene in the proceedings relative to the latter’s intestate estate
and to the settlement of his succession (article 1034 of the Civil
Code), because such creditor has no right or interest that call for
the protection of the law and the courts, except in any remainder
which may be found due the heir.
"An execution cannot legally be levied upon the property of an
intestate succession to pay the debts of the widow and heirs of the
deceased, until the credits held against the latter at the time of his
death shall have been paid, and only after the debts of the estate
have been paid can the remaining property that pertains to the
said debtor heirs be attached.
The foregoing pronouncements are perfectly applicable to the case
at bar, because the appellant is not a creditor of the deceased
Agustin Montilla, Sr. and he seeks to collect his claim out of the
inheritance of Claudio Montilla, an heir, before the net asset of the
intestate estate have been determined.
Ledesma vs Mclachlin
66 Phil 547
Facts: In the year 1916, the plaintiff Socorro Ledesma lived
martially with Lorenzo M. Quitco, while the latter was still single,
of which relation lasting until the year 1921, was born a daughter
who is the other plaintiff Ana Quitco Ledesma.
In 1921, it seems that the relation between Socorro Ledesma and
Lorenzo M. Quitco came to an end. But the latter executed a deed
acknowledging the plaintiff Ana Quitco Ledesma as his natural
daughter and issued in favor of the plaintiff Socorro Ledesma a
promissory note of the following tenor:
P2,000. For value received I promise to pay Miss Socorro Ledesma
the sum of P2,000. Philippine currency under the following terms:
P250 to be paid on the first day of March.
1922: Another P250 to be paid on the first day of November.
1922: The remaining P1,500 to be paid two years from the date of
the execution of this note.
Subsequently, Lorenzo M. Quitco married the defendant Conchita
McLachlin with whom he had 4 children who are the other
defendants. Lorenzo M. Quitco died and later on December 15,
1932, his father Eusebio Quitco also died, and as the latter left real
and personal properties upon his death, administration
proceedings of said properties were instituted in this court, the
said case being known as the intestate of the deceased Eusebio
Quitco.
Upon the institution of the intestate of the deceased Eusebio
Quitco and the appointment of the committee on claims and
appraisal, the plaintiff Socorro Ledesma filed before said
committee the aforequoted promissory note for payment, and the
commissioners, upon receipt of said promissory note, instead of
passing upon it, elevated the same to this court en consulta and
however due to lack of jurisdiction was denied the same.
The court issued an order of declaration of heirs in the intestate of
the deceased Eusebio Quitco, and as Ana Quitco Ledesma was not
included among the declared heirs, Socorro Ledesma, as mother of
Ana Quitco Ledesma, asked for the reconsideration of said
order, a petition which the court denied.
Issue: Whether the properties inherited by the defendants can be
subject to payment from the debts and obligations of their
deceased father
Held: No. While it is true that under the provisions of articles 924
to 927 of the Civil Code, a child represents resents his father or
mother who died before him in the properties of his grandfather
or grandmother, this right of representation does not make the
said child answerable for the obligations contracted by his
deceased father or mother, because, as may be seen from the
provisions of the Code of Civil Procedure referring to partition of
inheritances, the inheritance is received with the benefit of
inventory, that is to say, the heirs only answer with the properties
received from their predecessor. The herein defendants, as heirs
of Eusebio Quitco, in representation of their father Lorenzo M.
Quitco, are not bound to pay the indebtedness of their said father
from whom they did not inherit anything.
For the foregoing considerations, we are of the opinion and so
hold: That the claim for the payment of an indebtedness
contracted by a deceased person cannot be filed for its collection
before the committee on claims and appraisal, appointed in the
intestate of his father, and the properties inherited from the latter
by the children of said deceased do not answer for the payment of
the indebtedness contracted during the lifetime of said person.
When Successional Rights Transmitted
DKC Holdings vs CA
329 SCRA 66
Facts: The subject of the controversy is a parcel of land located in
Malinta, Valenzuela, Metro Manila which was originally owned by
private respondent Victor U. Bartolome’s deceased mother,
Encarnacion Bartolome. This lot was in front of one of the textile
plants of petitioner and, as such, was seen by the latter as a
potential warehouse site.
DKC Holdings entered into a Contract of Lease with Option to Buy
with Encarnacion Bartolome, whereby petitioner was given the
option to lease or lease with purchase the subject land, which
option must be exercised within a period of 2 years counted from
the signing of the Contract. In turn, petitioner undertook to pay
P3,000.00 a month as consideration for the reservation of its
option. Within the 2 year period, petitioner shall serve formal
written notice upon the lessor Encarnacion Bartolome of its desire
to exercise its option. The contract also provided that in case
petitioner chose to lease the property, it may take actual
possession of the premises. In such an event, the lease shall be for
a period of six years, renewable for another six years, and the
monthly rental fee shall be P15,000.00 for the first six years and
P18,000.00 for the next six years, in case of renewal.
Petitioner regularly paid the monthly P3,000.00 provided for by
the Contract to Encarnacion until her death. Thereafter, petitioner
coursed its payment to private respondent Victor Bartolome,
being the sole heir of Encarnacion. Victor, however, refused to
accept these payments.
Meanwhile, on January 10, 1990, Victor executed an Affidavit of
Self-Adjudication over all the properties of Encarnacion, including
the subject lot. Accordingly, Register of Deeds cancelled TCT and
issued a TCT in the name of Victor Bartolome.
Petitioner served upon Victor, via registered mail, notice that it
was exercising its option to lease the property, tendering the
amount of P15,000.00 as rent for the month of March. Again,
Victor refused to accept the tendered rental fee and to surrender
possession of the property to petitioner.
Petitioner thus opened Savings Account with the China Bank in the
name of Victor Bartolome and deposited therein the P15,000.00
rental fee for March as well as P6,000.00 reservation fees for the
months of February and March.
Petitioner also tried to register and annotate the Contract on the
title of Victor to the property. Although respondent Register of
Deeds accepted the required fees, he nevertheless refused to
register or annotate the same or even enter it in the day book or
primary register.
Thus, petitioner filed a complaint for specific performance and
damages against Victor and the Register of Deeds.
Issue: Whether or not the Contract of Lease with Option to Buy
entered into by the late Encarnacion Bartolome with petitioner
was terminated upon her death or whether it binds her sole heir,
Victor, even after her demise
Held: The general rule, therefore, is that heirs are bound by
contracts entered into by their predecessors in interest except
when the rights and obligations arising therefrom are not
transmissible by (1) their nature, (2) stipulation or (3) provision
of law.
In the case at bar, there is neither contractual stipulation nor legal
provision making the rights and obligations under the contract
intransmissible. More importantly, the nature of the rights and
obligations therein are, by their nature, transmissible.

The nature of intransmissible rights as explained by Arturo
Tolentino, an eminent civilist, is as follows:
“Among contracts which are intransmissible are those which are
purely personal, either by provision of law, such as in cases of
partnerships and agency, or by the very nature of the obligations
arising therefrom, such as those requiring special personal
qualifications of the obligor. It may also be stated that contracts
for the payment of money debts are not transmitted to the heirs of
a party, but constitute a charge against his estate. Thus, where the
client in a contract for professional services of a lawyer died,
leaving minor heirs, and the lawyer, instead of presenting his
claim, for professional services under the contract to the probate
court, substituted the minors as parties for his client, it was held
that the contract could not be enforced against the minors; the
lawyer was limited to a recovery on the basis of quantum meruit.”
In American jurisprudence, “(W)here acts stipulated in a contract
require the exercise of special knowledge, genius, skill, taste,
ability, experience, judgment, discretion, integrity, or other
personal qualification of one or both parties, the agreement is of a
personal nature, and terminates on the death of the party who is
required to render such service.”
It has also been held that a good measure for determining whether
a contract terminates upon the death of one of the parties is
whether it is of such a character that it may be performed by the
promissor’s personal representative. Contracts to perform
personal acts which cannot be as well performed by others are
discharged by the death of the promissor. Conversely, where the
service or act is of such a character that it may as well be
performed by another, or where the contract, by its terms, shows
that performance by others was contemplated, death does not
terminate the contract or excuse nonperformance.
In the case at bar, there is no personal act required from the late
Encarnacion Bartolome. Rather, the obligation of Encarnacion in
the contract to deliver possession of the subject property to
petitioner upon the exercise by the latter of its option to lease the
same may very well be performed by her heir Victor.
As early as 1903, it was held that “(H)e who contracts does so for
himself and his heirs.” In 1952, it was ruled that if the predecessor
was duty bound to reconvey land to another, and at his death the
reconveyance had not been made, the heirs can be compelled to
execute the proper deed for reconveyance. This was grounded
upon the principle that heirs cannot escape the legal consequence
of a transaction entered into by their predecessor in interest
because they have inherited the property subject to the liability
affecting their common ancestor.
It is futile for Victor to insist that he is not a party to the contract
because of the clear provision of Article 1311 of the Civil Code.
Indeed, being an heir of Encarnacion, there is privity of interest
between him and his deceased mother. He only succeeds to what
rights his mother had and what is valid and binding against her is
also valid and binding as against him.
In the case at bar, the subject matter of the contract is likewise a
lease, which is a property right. The death of a party does not
excuse nonperformance of a contract which involves a property
right, and the rights and obligations thereunder pass to the
personal representatives of the deceased. Similarly,
nonperformance is not excused by the death of the party when the
other party has a property interest in the subject matter of the
contract. Under both Article 1311 of the Civil Code and
jurisprudence, therefore, Victor is bound by the subject Contract of
Lease with Option to Buy.
Aruego vs CA
254 SCRA 711
Facts: A Complaint for Compulsory Recognition and Enforcement
of Successional Rights was filed by the minors, private respondent
Antonia F. Aruego and her alleged sister Evelyn F. Aruego,
represented by their mother and natural guardian, Luz M. Fabian.
Named defendants therein were Jose E. Aruego, Jr. and the five (5)
minor children of the deceased Gloria A. Torres, represented by
their father and natural guardian, Justo P. Torres, Jr., now the
petitioners herein.
The complaint avers that the late Jose M. Aruego, Sr., a married
man, had an amorous relationship with Luz M. Fabian sometime in
1959 until his death. Out of this relationship were born Antonia F.
Aruego and Evelyn F. Aruego.
The complaint prayed for an Order praying that herein private
respondent and Evelyn be declared the illegitimate children of the
deceased Jose M. Aruego, Sr.; that herein petitioners be compelled
to recognize and acknowledge them as the compulsory heirs of the
deceased Jose M. Aruego; that their share and participation in the
estate of their deceased father be determined and ordered
delivered to them.
The main basis of the action for compulsory recognition is their
alleged “open and continuous possession of the status of
illegitimate children” as stated in the Complaint, to wit: (1) The
plaintiffs’ father, Jose M. Aruego, acknowledged and recognized
the herein plaintiffs as his children verbally among plaintiffs’ and
their mother’s family friends, as well as by myriad different
paternal ways, including but not limited to the following: (a)
Regular support and educational expenses; (b) Allowance to use
his surname; (c) Payment of maternal bills; (d) Payment of
baptismal expenses and attendance therein; (e) Taking them to
restaurants and department stores on occasions of family
rejoicing; (f) Attendance to school problems of plaintiffs; (g)
Calling and allowing plaintiffs to his office every now and then; (h)
Introducing them as such children to family friends. (2) The
plaintiffs are thus, in continuous possession of the status of
(illegitimate) children of the deceased Jose M. Aruego who
showered them, with the continuous and clear manifestations of
paternal care and affection as above outlined.
Issue: Should the provisions of the Family Code be applied in the
instant case? As a corollary Will the application of the Family Code
in this case prejudice or impair any vested right of the private
respondent such that it should not be given retroactive effect in
this particular case?
Held: In the case at bench, petitioners point out that, since the
complaint of private respondent and her alleged sister was filed on
March 7, 1983, or almost one (1) year after the death of their
presumed father on March 30, 1982, the action has clearly
prescribed under the new rule as provided in the Family Code.
Petitioners, further, maintain that even if the action was filed prior
to the effectivity of the Family Code, this new law must be applied
to the instant case pursuant to Article 256 of the Family Code
which provides: “This Code shall have retroactive effect insofar as
it does not prejudice or impair vested or acquired rights in
accordance with the Civil Code or other laws.”
The phrase “vested or acquired rights” under Article 256, is not
defined by the Family Code. “The Committee did not define what is
meant by a ‘vested or acquired right,’ thus leaving it to the courts
to determine what it means as each particular issue is submitted
to them. It is difficult to provide the answer for each and every
question that may arise in the future.”
In the Tayag case, it applies four-square with the case at bench.
The action brought by private respondent Antonia Aruego for
compulsory recognition and enforcement of successional rights
which was filed prior to the advent of the Family Code, must be
governed by Article 285 of the Civil Code and not by Article 175,
paragraph 2 of the Family Code. The present law cannot be given
retroactive effect insofar as the instant case is concerned, as its
application will prejudice the vested right of private respondent to
have her case decided under Article 285 of the Civil Code. The
right was vested to her by the fact that she filed her action under
the regime of the Civil Code. Prescinding from this, the conclusion
then ought to be that the action was not yet barred,
notwithstanding the fact that it was brought when the putative
father was already deceased, since private respondent was then
still a minor when it was filed, an exception to the general rule
provided under Article 285 of the Civil Code.
Lorenzo vs Posadas
64 Phil 353
Facts: Pablo Lorenzo, in his capacity as trustee of the estate of
Thomas Hanley, deceased, brought this action against the
defendant, Juan Posadas, Jr., then the Collector of Internal
Revenue, f or the ref und of the amount of P2,052.74, paid by the
plaintiff as inheritance tax on the estate of the deceased, and for
the collection of interest thereon at the rate of 6 per cent per
annum, computed from September 15, 1932, the date when the
aforesaid tax was paid under protest.
It appears that on May 27, 1922, one Thomas Hanley died in
Zamboanga leaving a will and considerable amount of real and
personal properties. On June 14, 1922, proceedings for the probate
of his will and the settlement and distribution of his estate were
begun in the Court of First Instance of Zamboanga. The will was
admitted to probate. Said will provides that: (1) Any money left by
him be given to his nephew, Matthew Hanley; (2) That all real
estate owned by him at the time of his death be not sold or
otherwise disposed of for a period of ten (10) years after his death,
and that the same be handled and managed by his executors, and
proceeds thereof to be' given to his nephew, Matthew Hanley, at
Castlemore, Ballaghaderine, County of Rosecommon, Ireland, and
that he be directed that the same be used only for the education of
his brother's children and their descendants; (3) That ten (10)
years after his death his property be given to the above mentioned
Matthew Hanley to be disposed of in the way he thinks most
advantageous; and (4) At the time he executed his will he has one
brother living, named Malachi Hanley, and that his nephew,
Matthew Hanley, is a son of his said brother, Malachi Hanley.
The CFI of Zamboanga considered it proper for the best interests
of the estate to appoint a trustee to administer the real properties
which, under the will, were to pass to Matthew Hanley ten years
after the testator's death. Accordingly, P. J. M. Moore, one of the
two executors named in the will, was, on March 8, 1924, appointed
trustee. Moore took his oath of office and gave bond on March 10,
1924. He acted as trustee until February 29, 1932, when he
resigned and the plaintiff herein was appointed in his stead.
During the incumbency of the plaintiff as trustee, the defendant
Collector of Internal Revenue, alleging that the estate left by the
deceased at the time of his death consisted of realty valued at
P27,920 and personality valued at P1,465, and allowing a
deduction of P480.81, assessed against the estate an inheritance
tax in the amount of P1,434.24 which, together with the penalties
for delinquency in payment.
The plaintiff paid this amount under protest, notifying the
defendant at the same time that unless the amount was promptly
refunded suit would be brought for its recovery.
Issues: (a) When does the rights to succession of a person be
transmitted? (b) Whether the estate of Thomas Hanley in so far as
the real properties are concerned, did not and could not legally
pass to the instituted heir, Matthew Hanley, until after the
expiration of ten years from the death of the testator on May 27,
1922?
Held: (a) The accrual of the inheritance tax is distinct from the
obligation to pay the same. Section 1536 as amended, of the
Administrative Code, imposes the tax upon "every transmission by
virtue of inheritance, devise, bequest, gift mortis causa, or advance
in anticipation of inheritance, devise, or bequest." The tax
therefore is upon transmission or the transfer or devolution of
property of a decedent, made effective by his death. It is in reality
an excise or privilege tax imposed on the right to succeed to,
receive, or take property by or under a will or the intestacy law, or
deed, grant, or gift to become operative at or after death.
According to article 657 of the Civil Code, "the rights to the
succession of a person are transmitted from the moment of his
death." "In other words", said Arellano, C. J., "* * * the heirs succeed
immediately to all of the property of the deceased ancestor. The
property belongs to the heirs at the moment of the death of the
ancestor as completely as if the ancestor had executed and
delivered to them a deed for the same before his death."
Plaintiff, however, asserts that while article 657 of the Civil Code is
applicable to testate as well as intestate succession, it operates
only in so far as forced heirs are concerned. But the language of
article 657 of the Civil Code is broad and makes no distinction
between different classes of heirs. That article does not speak of
forced heirs; it does not even use the word "heir". It speaks of the
rights of succession and of the transmission thereof from the
moment of death. The provision of section 625 of the Code of Civil
Procedure regarding the authentication and probate of a will as a
necessary condition to effect transmission of property does not
affect the general rule laid down in article 657 of the Civil Code.
The authentication of a will implies its due execution but once
probated and allowed the transmission is effective as of the death
of the testator in accordance with article 657 of the Civil Code.
Whatever may be the time when actual transmission of the
inheritance takes place, succession takes place in any event at the
moment of the decedent's death. The time when the heirs legally
succeed to the inheritance may differ from the time when the heirs
actually receive such inheritance.
Thomas Hanley having died on May 27, 1922, the inheritance tax
accrued as of that date.
(b) The plaintiff contends that the estate of Thomas Hanley, in so
far as the real properties are concerned, did not and could not
legally pass to the instituted heir, Matthew Hanley, until after the
expiration of ten years from the death of the testator on May 27,
1922 and, that the inheritance tax should be based on the value of
the estate in 1932, or ten years after the testator's death. The
plaintifF introduced evidence tending to show that in 1932 the
real properties in question had a reasonable value of only P5,787.
This amount added to the value of the personal property left by
the deceased, which the plaintiff admits is P1,465, would generate
an inheritance tax which, excluding deductions, interest and
surcharge, would amount only to about P169.52.
If death is the generating source from which the power of the state
to impose inheritance taxes takes its being and if, upon the death
of the decedent, succession takes place and the right of the state to
tax vests instantly, the tax should be measured by the value of the
estate as it stood at the time of the decedent's death, regardless of
any subsequent contingency affecting value or any subsequent
increase or decrease in value.
"The right of the state to an inheritance tax accrues at the moment
of death, and hence is ordinarily measured as to any beneficiary by
the value at that time of such property as passes to him.
Subsequent appreciation or depreciation is immaterial."
Parulan vs Garcia
GR No. 184148
Facts: This is a Complaint for Annulment of Sale and
Reconveyance of Property filed by respondents Rosario
Calalang-Garcia, Leonora Calalang-Sabile, and Carlito S. Calalang
asserted their ownership over a certain parcel of land against the
petitioners Nora B. Calalang-Parulan and Elvira B. Calalang. The
said lot was allegedly acquired by the respondents from their
mother Encarnacion Silverio, through succession as the latter’s
compulsory heirs.
Pedro Calalang contracted two marriages during his lifetime. The
first marriage was with their mother Encarnacion Silverio. During
the subsistence of this marriage, their parents acquired the
abovementioned parcel of land from their maternal grandmother
Francisca Silverio. Despite enjoying continuous possession of the
land, however, their parents failed to register the same. On June 7,
1942, the first marriage was dissolved with the death of
Encarnacion Silverio.
Pedro Calalang entered into a second marriage with Elvira B.
Calalang who then gave birth to Nora B. Calalang-Parulan and
Rolando Calalang. According to the respondents, it was only
during this time that Pedro Calalang filed an application for free
patent over the parcel of land with the Bureau of Lands. Pedro
Calalang committed fraud in such application by claiming sole and
exclusive ownership over the land since 1935 and concealing the
fact that he had three children with his first spouse. As a result, the
Register of Deeds of Bulacan issued Original Certificate of Title
(OCT) in favor of Pedro Calalang only.
Pedro Calalang sold the said parcel of land to Nora B.
Calalang-Parulan as evidenced by a Deed of Sale executed by both
Pedro Calalang and Elvira B. Calalang. Accordingly, the Register of
Deeds of Bulacan cancelled OCT and issued Transfer Certificate of
Title (TCT) in the name of Nora B. Calalang-Parulan.
The respondents argued that the sale of the land was void because
Pedro Calalang failed to obtain the consent of the respondents
who were co-owners of the same. As compulsory heirs upon the
death of Encarnacion Silverio, the respondents claimed that they
acquired successional rights over the land. Thus, in alienating the
land without their consent, Pedro Calalang allegedly deprived
them of their pro indiviso share in the property.
Issue: Whether Pedro Calalang was the exclusive owner of the
disputed property prior to its transfer to his daughter Nora B.
Calalang-Parulan
Held: The petitioners argue that the disputed property belonged
to the conjugal partnership of the second marriage of Pedro
Calalang with Elvira B. Calalang as evidenced by OCT which was
issued to Pedro Calalang during the subsistence of his marriage to
Elvira B. Calalang. On the other hand, the respondents claim that
the disputed property was transferred by their maternal
grandmother, Francisca Silverio, to their parents, Pedro Calalang
and Encarnacion Silverio, during the latter’s marriage. Thus, the
respondents argue that it belonged to the conjugal partnership of
the first marriage of Pedro Calalang with Encarnacion Silverio.
We have carefully reviewed the records of this case and sustain
the finding of the CA that Pedro Calalang is the sole and exclusive
owner of the disputed property.
As correctly pointed out by the CA, a close perusal of the records of
this case would show that the records are bereft of any concrete
proof to show that the subject property indeed belonged to
respondents’ maternal grandparents. The evidence respondents
adduced merely consisted of testimonial evidence such as the
declaration of Rosario Calalang-Garcia that they have been staying
on the property as far as she can remember and that the property
was acquired by her parents through purchase from her maternal
grandparents. However, she was unable to produce any document
to evidence the said sale, nor was she able to present any
documentary evidence such as the tax declaration issued in the
name of either of her parents. Moreover, we note that the free
patent was issued solely in the name of Pedro Calalang and that it
was issued more than 30 years after the death of Encarnacion and
the dissolution of the conjugal partnership of gains of the first
marriage. Thus, we cannot subscribe to respondents’ submission
that the subject property originally belonged to the parents of
Encarnacion and was acquired by Pedro Calalang and
Encarnacion.
We likewise cannot sustain the argument of the petitioners that
the disputed property belongs to the conjugal partnership of the
second marriage of Pedro Calalang with Elvira B. Calalang on the
ground that the title was issued in the name of “Pedro Calalang,
married to Elvira Berba [Calalang].
A plain reading of the above provision would clearly reveal that
the phrase “Pedro Calalang, married to Elvira Berba [Calalang]”
merely describes the civil status and identifies the spouse of the
registered owner Pedro Calalang. Evidently, this does not mean
that the property is conjugal.
It must likewise be noted that in his application for free
patent,[16] applicant Pedro Calalang averred that the land was
first occupied and cultivated by him since 1935 and that he had
planted mango trees, coconut plants, caimito trees, banana plants
and seasonal crops and built his house on the subject lot. But he
applied for free patent only in 1974 and was issued a free patent
while already married to Elvira B. Calalang. Thus, having
possessed the subject land in the manner and for the period
required by law after the dissolution of the first marriage and
before the second marriage, the subject property ipso jure became
private property and formed part of Pedro Calalang’s exclusive
property. It was therefore excluded from the conjugal partnership
of gains of the second marriage.
As the sole and exclusive owner, Pedro Calalang had the right to
convey his property in favor of Nora B. Calalang-Parulan by
executing a Deed of Sale on February 17, 1984.
It is hornbook doctrine that successional rights are vested only at
the time of death. Article 777 of the New Civil Code provides that
“[t]he rights to the succession are transmitted from the moment of
the death of the decedent.”
Thus, it is only upon the death of Pedro Calalang on December 27,
1989 that his heirs acquired their respective inheritances, entitling
them to their pro indiviso shares to his whole estate. At the time of
the sale of the disputed property, the rights to the succession were
not yet bestowed upon the heirs of Pedro Calalang. And absent
clear and convincing evidence that the sale was fraudulent or not
duly supported by valuable consideration (in effect an inofficious
donation inter vivos), the respondents have no right to question
the sale of the disputed property on the ground that their father
deprived them of their respective shares.
Balus vs Balus
GR No. 168970
Facts: Herein petitioner and respondents are the children of the
spouses Rufo and Sebastiana Balus. Sebastiana died on September
6, 1978, while Rufo died on July 6, 1984.
In 1979, Rufo mortgaged a parcel of land, which he owns, as
security for a loan he obtained from the Rural Bank of Maigo,
Lanao del Norte (Bank). The said property was originally covered
by Original Certificate of Title.
Rufo failed to pay his loan. As a result, the mortgaged property
was foreclosed and was subsequently sold to the Bank as the sole
bidder at a public auction held for that purpose. On November 20,
1981, a Certificate of Sale was executed by the sheriff in favor of
the Bank. The property was not redeemed within the period
allowed by law. More than two years after the auction the sheriff
executed a Definite Deed of Sale in the Bank’s favor. Thereafter, a
new title was issued in the name of the Bank.
Now, herein petitioner and respondents executed an Extrajudicial
Settlement of Estate adjudicating to each of them a specific
one-third portion of the subject property consisting of 10,246
square meters. The Extrajudicial Settlement also contained
provisions wherein the parties admitted knowledge of the fact that
their father mortgaged the subject property to the Bank and that
they intended to redeem the same at the soonest possible time.
Three years after the execution of the Extrajudicial Settlement,
herein respondents bought the subject property from the Bank. A
Deed of Sale of Registered Land was executed by the Bank in favor
of respondents. Subsequently, Transfer Certificate of Title (TCT)
was issued in the name of respondents. Meanwhile, petitioner
continued possession of the subject lot.
Respondents filed a Complaint8 for Recovery of Possession and
Damages against petitioner, contending that they had already
informed petitioner of the fact that they were the new owners of
the disputed property, but the petitioner still refused to surrender
possession of the same to them.
Issue: Whether the parcel of land was still part of the estate of the
deceased Rufo when the bank bought it during the bidding upon
foreclosure of the mortgage
Held: No. Petitioner and respondents are arguing on the wrong
premise that, at the time of the execution of the Extrajudicial
Settlement, the subject property formed part of the estate of their
deceased father to which they may lay claim as his heirs.
At the outset, it bears to emphasize that there is no dispute with
respect to the fact that the subject property was exclusively owned
by petitioner and respondents’ father, Rufo, at the time that it was
mortgaged in 1979. This was stipulated by the parties during the
hearing conducted by the trial court on October 28, 1996.
Evidence shows that a Definite Deed of Sale was issued in favor of
the Bank on January 25, 1984, after the period of redemption
expired. There is neither any dispute that a new title was issued in
the Bank’s name before Rufo died on July 6, 1984. Hence, there is
no question that the Bank acquired exclusive ownership of the
contested lot during the lifetime of Rufo. The rights to a person’s
succession are transmitted from the moment of his death. In
addition, the inheritance of a person consists of the property and
transmissible rights and obligations existing at the time of his
death, as well as those which have accrued thereto since the
opening of the succession.
In the present case, since Rufo lost ownership of the subject
property during his lifetime, it only follows that at the time of his
death, the disputed parcel of land no longer formed part of his
estate to which his heirs may lay claim. Stated differently,
petitioner and respondents never inherited the subject lot from
their father.
Will A Personal Act
Castaneda vs Alemany
3 Phil 426
Facts: Dona Juana Moreno executed a written will in the presence
of three witnesses, who signed it as witnesses and under the
express direction of the testatrix as required by the law.
Issue: Whether said will is valid
Held: Yes. The evidence in this case shows to our satisfaction that
the will of Doña Juana Moreno was duly signed by herself in the
presence of three witnesses, who signed it as witnesses in the
presence of the testatrix and of each other. It was therefore
executed in conformity with law.
There is nothing in the language of section 018 of the Code of Civil
Procedure which supports the claim of the appellants that the will
must be written by the testator himself or by someone else in his
presence and under his express direction. That section requires
(1) that the will be in writing and (2) either that the testator sign it
himself or, if he does not sign it, that it be signed by someone in his
presence and by his express direction. Who does the mechanical
work of writing the will is a matter of indifference. The fact,
therefore, that in this case the will was typewritten in the office of
the lawyer for the testatrix is of no consequence.
To establish conclusively as against everyone, and once for all, the
facts that a will was executed with the formalities required by law
and that the testator was in a condition to make a will, is the only
purpose of the proceedings under the new code for the probate of
a will.
The judgment in such proceedings determines and can determine
nothing more. In them the court has no power to pass upon the
validity of any provisions made in the will. It can not decide, for
example, that a certain legacy is void and another one valid. It
could not in this case make any decision upon the question
whether the testatrix had the power to appoint by will a guardian
for the property of her children by her first husband, or whether
the person so appointed was or was not a suitable person to
discharge such trust.

Law Governing Intrinsic Validity
Miciano vs Brimo
50 Phil 867
Facts: The partition of the estate left by the deceased Joseph G.
Brimo is in question in this case.
The judicial administrator of this estate filed a scheme of partition.
Andre Brimo, one of the brothers of the deceased, opposed it. The
court, however, approved it.
Issue: What law will apply to the Brimo’s will
Held: The Philippine Laws.
The appellant's opposition is based on the fact that the partition in
question puts into effect the provisions of Joseph G. Brimo's will
which are not in accordance with the laws of his Turkish
nationality, for which reason they are void as being in violation of
article 10 of the Civil Code which, among other things, provides
the following: "Nevertheless, legal and testamentary successions,
in respect to the order of succession as well as to the amount of
the successional rights and the intrinsic validity of their
provisions, shall be regulated by the national law of the person
whose succession is in question, whatever may be the nature of
the property or the country in which it may be situated."
But the fact is that the oppositor did not prove that said
testamentary dispositions are not in accordance with the Turkish
laws, inasmuch as he did not present any evidence showing what
the Turkish laws are on the matter, and in the absence of evidence
on such laws, they are presumed to be the same as those of the
Philippines.
There is, therefore, no evidence in the record that the national law
of the testator Joseph G. Brimo was violated in the testamentary
dispositions in question which, not being contrary to our laws in
force, must be complied with.
In regard to the first assignment of error which deals with the
exclusion of the herein appellant as a legatee, inasmuch as he is
one of the persons designated as such in the will, it must be taken
into consideration that such exclusion is based on the last part of
the second clause of the will, which says:
"Second. I likewise desire to state that although, by law, I am a
Turkish citizen, this citizenship having been conferred upon me by
conquest and not by free choice, nor by nationality and, on the
other hand, having resided for a considerable length of time in. the
Philippine Islands where I succeeded in acquiring all of the
property that I now possess, it is my wish that the distribution of
my property and everything in connection with this, my will, be
made and disposed of in accordance with the laws in force in the
Philippine Islands, requesting all of my relatives to respect this
wish, otherwise, I annul and cancel beforehand whatever
disposition found in this will favorable to the person or persons
who fail to comply with this request."
The institution of legatees in this will is conditional, and the
condition is that the instituted legatees must respect the testator's
will to distribute his property, not in accordance with the laws of
his nationality, but in accordance with the laws of the Philippines.
If this condition as it is expressed were legal and valid, any legatee
who fails to comply with it, as the herein oppositor who, by his
attitude in these proceedings has not respected the will of the
testator, as expressed, is prevented from receiving his legacy.
The fact is, however, that the said condition is void, being contrary
to law, for article 792 of the Civil Code provides the following:
"Impossible conditions and those contrary to law or good morals
shall be considered as not imposed and shall not prejudice the heir
or legatee in any manner whatsoever, even should the testator
otherwise provide."
And said condition is contrary to law because it expressly ignores
the testator's national law when, according to article 10 of the Civil
Code above quoted, such national law of the testator is the one to
govern his testamentary dispositions. Said condition then, in the
light of the legal provisions above cited, is considered unwritten,
and the institution of legatees in said will is unconditional and
consequently valid and effective even as to the herein oppositor.
It results from all this that the second clause of the will regarding
the law which shall govern it, and to the condition imposed upon
the legatees, is null and void, being contrary to law. All of the
remaining clauses of said will with all their dispositions and
requests are perfectly valid and effective it not appearing that said
clauses are contrary to the testator's national laws.
Bellis vs Bellis
20 SCRA 358
Facts: Amos G. Bellis, born in Texas, was "a citizen of the State of
Texas and of the United States." By his first wife, Mary E. Mallen,
whom he divorced, he had five legitimate children; by his second
wife, Violet Kennedy, who survived him, he had three legitimate
children and finally, he had three illegitimate children.
Amos G. Bellis executed a will in the Philippines, in which he
directed that after all taxes, obligations, and expenses of
administration are paid f or, his distributable estate should be
divided, in trust, in the following order and manner: (a)
$240,000.00 to his first wife, Mary E. Mallen; (b) P120,000.00 to
his three illegitimate children or P40,000.00 each and (c) after the
foregoing two items have been satisfied, the remainder shall go to
his seven surviving children by his first and second wives in equal
shares.
Subsequently, Amos G. Bellis died, a resident of San Antonio,
Texas, U.S.A. His will was admitted to probate in the Court of First
Instance of Manila.
The People's Bank and Trust Company, as executor of the will,
paid all the bequests therein including the amount of $240,000.00
in the form of shares of stock to Mary E. Mallen and to the three
(3) illegitimate children in various amounts totalling P40,000.00
each in satisfaction of their respective legacies, or a total of
P120,000.00, which it released from time to time accordingly as
the lower court approved and allowed.
Preparatory to closing its administration, the executor submitted
and filed its "Executor's Final Account, Report of Administration
and Project of Partition" wherein it reported, inter alia, the
satisfaction of the legacy of Mary E. Mallen by the delivery to her of
shares of stock amounting to $240,000.00, and the legacies of the 3
illegitimate children in the amount of P40,000.00 each or a total of
?120,000.00. In the project of partition, the executor —pursuant to
the "Twelfth" clause of the testator's Last Will and Testament—
divided the residuary estate into seven equal portions for the
benefit of the testator's seven legitimate children by his first and
second marriages.
Maria and Miriam, 2 of the illegitimate children, filed their
respective oppositions to the project of partition on the ground
that they were deprived of their legitimes as illegitimate children
and, therefore, compulsory heirs of the deceased.
After the parties filed their respective memoranda and other
pertinent pleadings, the lower court, issued an order overruling
the oppositions and approving the executor's final account, report
and administration and project of partition. Relying upon Art. 16
of the Civil Code, it applied the national law of the decedent, which
in this case is Texas law, which did not provide for legitimes.
Issue: Which law must apply—Texas law or Philippine law.
Held: Texas law applies or the law of the nationality of the
decedent, Amos Bellis.
In this regard, the parties do not submit the case on, nor even
discuss, the doctrine of renvoi, applied by this Court in Aznar v.
Christensen Garcia.
Said doctrine is usually pertinent where the decedent is a national
of one country, and a domicile of another. In the present case, it is
not disputed that the decedent was both a national of Texas and a
domicile thereof at the time of his death. So that even assuming
Texas has a conflict of law rule providing that the domiciliary
system (law of the domicile) should govern, the same would not
result in a reference back (renvoi) to Philippine law, but would
still refer to Texas law. Nonetheless, if Texas has a conflicts rule
adopting the situs theory (lex) where the properties are situated,
renvoi would arise, since the properties here involved are found in
the Philippines. In the absence, however, of proof as to the conflict
of law rule of Texas, it should not be presumed different from ours.
Appellants' position is therefore not rested on the doctrine of
renvoi. As stated, they never invoked nor even mentioned it in
their arguments. Rather, they argue that their case falls under the
circumstances mentioned in the third paragraph of Article 17 in
relation to Article 16 of the Civil Code.
Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable
the national law of the decedent, in intestate or testamentary
successions, with regard to four items: (a) the order of succession;
(b) the amount of successional rights; (c) the intrinsic validity of
the provisions of the will; and (d) the capacity to succeed.
They provide that— "ART. 16. Real property as well as personal
property is subject to the law of the country where it is situated.
"However, intestate and testamentary successions, both with
respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person
whose succession is under consideration, whatever may be the
nature of the property and regardless of the country wherein said
property may be found."
"ART. 1039. Capacity to succeed is governed by the law of the
nation of the decedent." Appellants would however counter that
Art. 17. paragraph three, of the Civil Code, stating that—
"Prohibitive laws concerning persons, their acts or property, and
those which have for their object public order, public policy and
good customs shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions
agreed upon in a foreign country."
prevails as the exception to Art. 16, par. 2 of the Civil Code
afore-quoted. This is not correct. Precisely, Congress deleted the
phrase, "notwithstanding the provisions of this and the next
preceding article" when they incorporated Art. 11 of the old Civil
Code as Art. 17 of the new Civil Code, while reproducing without
substantial change the second paragraph of Art. 10 of the old Civil
Code as Art. 16 in the new. It must have been their purpose to
make the second paragraph of Art. 16 a specific provision in itself
which must be applied in testate and intestate succes-sions. As
further indication of this legislative intent. Congress added a new
provision, under Art. 1039, which decrees that capacity to succeed
is to be governed by the national law of the decedent.
It is therefore evident that whatever public policy or good customs
may be involved in our system of legitimes, Congress has not
intended to extend the same to the succession of foreign nationals.
For it has specifically chosen to leave, inter. alia, the amount of
successional rights, to the decedent's national law. Specific
provisions must prevail over general ones.
Appellants would also point out that the decedent executed two
wills—one to govern his Texas estate and the other his Philippine
estate—arguing from this that he intended Philippine law to
govern his Philippine estate. Assuming that such was the
decedent's intention in executing a separate Philippine will, it
would not alter the law, for as this Court ruled in Miciano v. Brimo.

A provision in a foreigner's will to the effect that his properties
shall be distributed in accordance with Philippine law and not
with his national law, is illegal and void. for his national law
cannot be ignored in regard to those matters that Article 10—now
Article 16—of the Civil Code states said national law should
govern. The parties admit that the decedent, Amos G. Bellis, was a
citizen of the State of Texas, U.S.A., and that under the laws of
Texas, there are no forced heirs or legitimes. Accordingly, since the
intrinsic validity of the provision of the will and the amount of
successional rights are to be determined under Texas law, the
Philippine law on legitimes cannot be applied to the testacy of
Amos G. Bellis.
Testate Estate of Bohanan
106 Phil 997
Facts: Testator was born in Nebraska and therefore a citizen of
that state, or at least a citizen of California where some of his
properties are located.
Notwithstanding the long residence of the decedent in the
Philippines, his stay here was merely temporary, and he continued
and remained to be a citizen of the United States and of the state of
his particular choice, which is Nevada, as stated in his will. He had
planned to spend the rest of his days in that state. His permanent
residence or domicile in the United States depended upon his
personal intent or desire, and he selected Nevada as his domicile
and therefore at the time of his death, he was a citizen of that state.
The Philippine Trust Company was named as the executor of the
will.
The executor filed a project of partition making, in accordance
with the provisions of the will, the following adjudications: (1)
one-half of the residuary estate, to the Farmers and Merchants
National Bank of Los Angeles, California, U.S.A. in trust only for the
benefit of testator's grandson Edward George Bohanan, which
consists of cash and one-half in shares of stock of several mining
companies; (2) the other half of the residuary estate to the
testator's brother, F. L. Bohanan, and his sister, Mrs. M. B.
Galbraith, share and share alike. This consists in the same amount
of cash and of shares of mining stock similar to those given to
testator's grandson; (3) legacies of P6,000 each to his (testator)
son and his daughter to be paid in three yearly installments; (4)
legacies to Clara Daen, in the amount of P1 0,000.00; Katherine
Woodward, P2,000; Beulah Fox, P4,000; and Elizabeth Hastings,
P2,000.
The wife Magdalena C. Bohanan and her two children question the
validity of the testamentary provisions disposing of the estate in
the manner above indicated, claiming that they have been
deprived of the legitime that the laws of the forum concede to
them.
Issue: (1) Whether Magdalena can claim her legitime from the
deceased testate estate (2) What law should govern, Laws of
Nevada or Philippine Law
Held: (1) No. The first question refers to the share that the wife of
the testator, Magdalena C. Bohanan, should be entitled to receive.
The will has not given her any share in the estate left by the
testator. It is argued that it was error for the trial court to have
recognized the Reno divorce secured by the testator from his
Filipino wife Magdalena C. Bohanan, and that said divorce should
be declared a nullity in this jurisdiction.
The court below refused to recognize the claim of the widow on
the ground that the laws of Nevada, of which the deceased was a
citizen, allow him to dispose of all of his properties without
requiring him to leave any portion of his estate to his wife.
Section 9905 of Nevada Compiled Laws of 1925 provides; "Every
person over the age of eighteen years, of sound mind, may, by last
will, dispose of all his or her estate, real and personal, the same
being- chargeable with the payment of the testator's debts."

Besides, the right of the former wife of the testator, Magdalena C.
Bohanan, to a share in the testator's estate had already been
passed upon adversely against her in an order which had become
final, as Magdalena C. Bohanan does not appear to have appealed
therefrom to question its validity.
Moreover, the court below had found that the testator and
Magdalena C. Bohanan were married on January 30, 1909, and that
divorce was granted to him on May 20, 1922; that sometime in
1925, Magdalena C. Bohanan married Carl Aaron and this
marriage was subsisting at the time of the death of the testator.
Since no right to share in the inheritance in favor of a divorced
wife exists in the State of Nevada and since the court below had
already found that there was no conjugal property between the
testator and Magdalena C. Bohanan, the latter can now have no
legal claim to any portion of the estate left by the testator.
(2) Laws of Nevada. The most important issue is the claim of the
testator's children, Edward and Mary Lydia, who had received
legacies in the amount of P6,000 each only, and, therefore, have
not been given their shares in the estate which, in accordance with
the laws of the forum, should be two-thirds of the estate left by the
testator. Is the failure of the testator to give his children two-thirds
of the estate left by him at the time of his death, in accordance with
the laws of the forum valid?
The old Civil Code, which is applicable to this case because the
testator died in 1944, expressly provides that successional rights
to personal property are to be governed by the national law of the
person whose succession is in question. Says the law on this point:
"Nevertheless, legal and testamentary successions, in respect to
the order of succession as well as to the extent of the successional
rights and the intrinsic validity of their provisions, shall be
regulated by the national law of the person whose succession is in
question, whatever may be the nature of the property and the
country in which it is found."
In the proceedings for the probate of the will, it was found out and
it was decided that the testator was a citizen of the State of Nevada
because he had selected this as his domicile and his permanent
residence.
It is not disputed that the laws of Nevada allow a testator to
dispose of all his properties by will.
It does not appear that at the time of the hearing of the project of
partition, the above-quoted provision was introduced in evidence,
as it was the executor's duty to do. The law of Nevada, being a
foreign law, can only be proved in our courts in the form and
manner provided for by our Rules.
We have, however, consulted the records of the case in the court
below and we have found that during the hearing Nevada Laws,
was introduced in evidence by appellants. Again said law was
presented by the counsel for the executor and admitted by the
Court.
Under all the above circumstances, we are constrained to hold that
the pertinent law of Nevada, especially Section 9905 of the
Compiled Nevada Laws of 1925, can be taken judicial notice of by
us, without proof of such law having been offered at the hearing of
the project of partition.
As in accordance with Article 10 of the old Civil Code, the validity
of testamentary dispositions are to be governed by the national
law of the testator, and as it has been decided and it is not
disputed that the national law of the testator is that of the State of
Nevada, already indicated above, which allows a testator to
dispose of all his property according to his will, as in the case at
bar, the order of the court approving the project of partition made
in accordance with the testamentary provisions, must be, as it is
hereby affirmed.
Aznar vs Garcia
7 SCRA 95
Facts: This is an appeal from a decision of the Court of First
Instance of Davao approving among things the final accounts of
the executor, directing the executor to reimburse Maria Lucy
Christensen the amount of P3,600 paid by her to Helen
Christensen Garcia as her legacy, and declaring Maria Lucy
Christensen entitled to the residue of the property to be enjoyed
during her lifetime, and in case of death without issue, one-half of
said residue to be payable to Mrs. Carrie Louise C. Borton, etc., in
accordance with the provisions of the will of the testator Edward
E. Christensen.
The will was executed in Manila and contains the following
provisions: (1) I declare that I have but ONE (1) child, named
MARIA LUCY CHRISTENSEN (now Mrs. Bernard Daney), who was
born in the Philippines about twenty-eight years ago, and who is
now residing at California, USA; (2) I further declare that I now
have no living ascendants, and no descendants except my above
named daughter, MARIA LUCY CHRISTENSEN DANEY; (3) I give,
devise and bequeath unto MARIA HELEN CHRISTENSEN, now
married to Eduardo Garcia, about eighteen years of age and who,
notwithstanding the fact that she was baptized Christensen, is not
in any way related to me, nor has she been at any time adopted by
me, and who, from all information I have now resides in Egpit,
Digos, Davao, Philippines, the sum of THREE THOUSAND SIX
HUNDRED PESOS (P3,600.00), Philippine Currency the same to be
deposited in trust for the said Maria Helen Christensen with the
Davao Branch of the Philippine National Bank, and paid to her at
the rate of One Hundred Pesos (P100.00), Philippine Currency per
month until the principal thereof as well as any interest which
may have accrued thereon, is exhausted; (4) I hereby give, devise
and bequeath, unto my well-beloved daughter, the said MARIA
LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney), all the income
from the rest, remainder, and residue of my property and estate,
real, personal and/or mixed, of whatsoever kind or character, and
wheresoever situated, of which I may be possessed at my death
and which may have come to me from any source whatsoever,
during her lifetime.
It is in accordance with the above-quoted provisions that the
executor in his final account and project of partition ratified the
payment of only P3,600 to Helen Christensen Garcia and proposed
that the residue of the estate be transferred to his daughter, Maria
Lucy Christensen.
Opposition to the approval of the project of partition was filed by
Helen Christensen Garcia, insofar as it deprives her (Helen) of her
legitime as an acknowledged natural child, she having been
declared by Us in G.R. Nos. L11483-84 an acknowledged natural
child of the deceased Edward E. Christensen. The legal grounds of
opposition are (a) that the distribution should be governed by the
laws of the Philippines, and (b) that said order of distribution is
contrary thereto insofar as it denies to Helen Christensen, one of
two acknowledged natural children, one-half of the estate in full
ownership. In amplification of the above grounds it was alleged
that the law that should govern the estate of the deceased
Christensen should not be the internal law of California alone, but
the entire law thereof because several foreign elements are
involved, that the forum is the Philippines and even if the case
were decided in California, Section 946 of the California Civil Code,
which requires that the domicile of the decedent should apply,
should be applicable. It was also alleged that Maria Helen
Christensen having been declared an acknowledged natural child
of the decedent, she is deemed for all purposes legitimate from the
time of her birth.
The court below ruled that as Edward E. Christensen was a citizen
of the United States and of the State of California at the time of his
death, the successional rights and intrinsic validity of the
provisions in his will are to be governed by the law of California, in
accordance with which a testator has the right to dispose of his
property in the way he desires, because the right of absolute
dominion over his property is sacred and inviolable.
Issue: What law should govern the intrinsic validity of the will of
Christensen

Held: We therefore find that as the domicile of the deceased
Christensen, a citizen of California, is the Philippines, the validity
of the provisions of his will depriving his acknowledged natural
child, the appellant, should be governed by the Philippine Law, the
domicile, pursuant to Art. 946 of the Civil Code of California, not by
the internal law of California.
There is no question that Edward E. Christensen was a citizen of
the United States and of the State of California at the time of his
death. But there is also no question that at the time of his death he
was domiciled in the Philippines, as witness the following facts
admitted by the executor himself.
In arriving at the conclusion that the domicile of the deceased is
the Philippines, we are persuaded by the fact that he was born in
New York, migrated to California and resided there for nine years,
and since he came to the Philippines in 1913 he returned to
California very rarely and only for short visits (perhaps to
relatives), and considering that he appears never to have owned or
acquired a home or properties in that state, which would indicate
that he would ultimately abandon the Philippines and make home
in the State of California.
As to his citizenship, however, We find that the citizenship that he
acquired in California when he resided in Sacramento, California
from 1904 to 1913, was never lost by his stay in the Philippines,
for the latter was a territory of the United States (not a state) until
1946 and the deceased appears to have considered himself as a
citizen of California by the fact that when he executed his will in
1951 he declared that he was a citizen of that State so that he
appears never to have intended to abandon his California
citizenship by acquiring another.
The law that governs the validity of his testamentary dispositions
is defined in Article 16 of the Civil Code of the Philippines, which is
as follows: “ART. 16. Real property as well as personal property is
subject to the law of the country where it is situated. However,
intestate and testamentary successions, both with respect to the
order of succession and to the amount of successional rights and
to the intrinsic validity of testamentary provisions, shall be
regulated by the national law of the person whose succession is
under consideration, whatever may be the nature of the property
and regardless of the country where said property may be found.”
The “national law” indicated in Article 16 of the Civil Code above
quoted cannot, therefore, possibly mean or apply to any general
American law. So it can refer to no other than the private law of
the State of California.
The decision of the court below, sustains the contention of the
executor-appellee that under the California Probate Code, a
testator may dispose of his property by will in the form and
manner he desires, citing the case of Estate of McDaniel. But
appellant invokes the provisions of Article 946 of the Civil Code of
California, which is as follows: “If there is no law to the contrary, in
the place where personal property is situated, it is deemed to
follow the person of its owner, and is governed by the law of his
domicile.” The existence of this provision is alleged in appellant’s
opposition and is not denied. We have checked it in the California
Civil Code and it is there.
Appellant, on the other hand, insists that Article 946 should be
applicable, and in accordance therewith and following the doc
trine of the renvoi, the question of the validity of the testamentary
provision in question should be referred back to the law of the
decedent’s domicile, which is the Philippines.
We note that Article 946 of the California Civil Code is its conflict
of laws rule, while the rule applied in In re Kaufman, Supra, its
internal law. If the law on succession and the conflict of laws rules
of California are to be enforced jointly, each in its own intended
and appropriate sphere, the principle cited In re Kaufman should
apply to citizens living in the State, but Article 946 should apply to
such of its citizens as are not domiciled in California but in other
jurisdictions. The rule laid down of resorting to the law of the
domicile in the determination of matters with foreign element
involved is in accord with the general principle of American law
that the domiciliary law should govern in most matters or rights
which follow the person of the owner.
Appellees argue that what Article 16 of the Civil Code of the
Philippines pointed out as the national law is the internal law of
California. But as above explained the laws of California have
prescribed two sets of laws for its citizens, one for residents
therein and another for those domiciled in other jurisdictions.
Reason demands that We should enforce the California internal
law prescribed for its citizens residing therein, and enforce the
conflict of laws rules for the citizens domiciled abroad. If we must
enforce the law of California as in comity we are bound to go, as so
declared in Article 16 of our Civil Code, then we must enforce the
law of California in accordance with the express mandate thereof
and as above explained, i.e., apply the internal law for residents
therein, and its conflict-of-laws rule for those domiciled abroad.
It is argued on appellees’ behalf that the clause “if there is no law
to the contrary in the place where the property is situated” in Sec.
946 of the California Civil Code refers to Article 16 of the Civil
Code of the Philippines and that the law to the contrary in the
Philippines is the provision in said Article 16 that the national law
of the deceased should govern. This contention cannot be
sustained. As explained in the various authorities cited above the
national law mentioned in Article 16 of our Civil Code is the law on
conflict of laws in the California Civil Code, i.e., Article 946, which
authorizes the reference or return of the question to the law of the
testator’s domicile. The conflict of laws rule in California, Article
946, Civil Code, precisely refers back the case, when a decedent is
not domiciled in California, to the law of his domicile, the
Philippines in the case at bar. The court of the domicile cannot and
should not refer the case back to California; such action would
leave the issue incapable of determination because the case will
then be like a football, tossed back and forth between the two
states, between the country of which the decedent was a citizen
and the country of his domicile. The Philippine court must apply
its own law as directed in the conflict of laws rule of the state of
the decedent, if the question has to be decided, especially as the
application of the internal law of California provides no legitime
for children while the Philippine law, Arts. 887(4) and 894, Civil
Code of the Philippines, makes natural children legally
acknowledged forced heirs of the parent recognizing them.
Law Governing Formalities of Wills
In Re Will of Riosa
39 Phil 23
Enriquez vs Abadia
95 SCRA 627
Testamentary Capacity
Bugnao vs Ubag
14 Phil 163
Facts: This is an appeal from an order of the CFI of Oriental
Negros, admitting to probate a document purporting to be the last
will and testament of Domingo Ubag, deceased. The instrument
was propounded by his widow, Catalina Bugnao, the sole
beneficiary thereunder, and probate was contested by the
brothers and sisters of the deceased, and who would be entitled to
share in the distribution of his estate, if probate were denied, as it
appears that the deceased left no heirs in the direct ascending or
descending line. Appellants contend that the evidence of record is
not sufficient to establish the execution of the alleged will in the
manner and form prescribed and that at the time when it is alleged
that the will was executed, Ubag was not of sound mind and
memory, and was physically and mentally incapable of making a
will.
The instrument propounded for probate purports to be the last
will and testament of Domingo Ubag, signed by him in the
presence of three subscribing and attesting witnesses, and appears
upon its face to have been duly executed in accordance with the
provisions of the Code of Civil Procedure touching the making of
wills.
Two of the subscribing witnesses, Victor J. Bingtoy and Catalino
Mariño, testified in support of the will, the latter being the justice
of the peace of the municipality wherein it was executed; and their
testimony was corroborated in all important details by the
testimony of the proponent herself, who was present when the
will was made.
The subscribing witnesses gave full and detailed accounts of the
execution of the will and swore that the testator, at the time of its
execution, was of sound mind and memory, and in their presence
attached his signature thereto as his last will and' testament, and
that in his presence and in the presence of each other, they as well
as the third subscribing witness signed the instrument as attesting
witnesses.
One of the witnesses stated that the deceased sat up in bed and
signed his name to the will, and that after its execution food was
given him by his wife; while the other testified that he was assisted
into a sitting position, and was given something to eat before he
signed his name. We think the evidence discloses that his wife
aided the sick man to sit up in bed at the time when he signed his
name to the instrument, and that he was given nourishment while
he was in that position, but it is not quite clear whether this was
immediately before or after, or both before and after he attached
his signature to the will.
But, however this may have been, we do not think that a slight
lapse of memory on the part of one or the other witness, as to the
precise details of an unimportant incident, to which his attention
may not have been particularly directed, is sufficient to raise a
doubt as to the veracity of these witnesses, or as to the truth and
accuracy of their recollection of the fact of the execution of the
instrument.
The contestants put upon the stand four witnesses for the purpose
of proving that at the time and on the occasion when the
subscribing witnesses testified that the will was executed, these
witnesses were not in the house with the testator, and that the
alleged testator was at that time in such physical and mental
condition that it was impossible for him to have made a will. Two
of these witnesses, upon cross-examination, admitted that they
were not in the house at or between the hours of four and six in
the afternoon of the day on which the will is alleged to have been
made, this being the time at which the witnesses in support of the
will testified that it was executed.
Of the other two witnesses, one is a contestant of the will, Macario
Ubag, a brother of the testator, and the other, Canuto Sinoy, his
close relative. These witnesses swore that they were in the house
of the deceased, where he was lying ill, at or about the time when
it is alleged that the will was executed, and that at that time the
alleged subscribing witnesses were not in the house, and the
alleged testator was so sick that he was unable to speak, to
understand, or to make himself understood, and that he was
wholly incapacitated to make a will. But the testimony of Macario
Ubag is in our opinion wholly unworthy of credence. In addition to
his manifest interest in the result of the investigation, it clearly
discloses a fixed and settled purpose to overthrow the will at all
costs, and to that end an utter disregard of the truth, and a
readiness to swear to any fact which he imagined would aid in
securing his object.
An admittedly genuine and authentic signature of the deceased
was introduced in evidence for comparison with the signature
attached to the will, but this witness in his anxiety to deny the
genuineness of the signature of his brother to the will, promptly
and positively swore that the admittedly genuine signature was
not his brother's signature, and only corrected his erroneous
statement in response to a somewhat suggestive question by his
attorney which evidently gave him to understand that his former
answer was likely to prejudice his own cause. On cross-
examination, he was forced to admit that because his brother and
his brother's wife (in whose favor the will was made) were
Aglipayanos, he and his other brothers and sister had not visited
them for many months prior to the one particular occasion as to
which he testified; and he admitted further, that, although he lived
near at hand, at no time thereafter did he or any of the other
members of his family visit their dying brother, and that they did
not even attend his funeral. If the testimony of this witness could
be accepted as true, it would be a remarkable coincidence indeed,
that the subscribing witnesses to the alleged will should have
falsely pretended to have joined in its execution on the very day,
and at the precise hour, when this interested witness happened to
pay his only visit to his brother during his last illness, so that the
testimony of this witness would furnish conclusive evidence in
support of the allegations of the contestants that the alleged will
was not executed at the time and place or in the manner and form
alleged by the subscribing witnesses.
In the course of the proceedings, an admittedly genuine signature
of the deceased was introduced in evidence, and upon a
comparison of this signature with the signature attached to the
instrument in question, we are wholly of the opinion of the trial
judge, who held in this connection as follows:
"No expert evidence has been adduced with regard to these two
signatures, and the presiding judge of this court does not claim to
possess any special expert knowledge in the matter of signatures;
nevertheless, the court has compared these two signatures, and
does not find that any material difference exists between the same.
x x x but the court finds that the principal strokes in the two
signatures are identical."
Issue: Whether the deceased was of sound mind in has the
testamentary capacity to execute a will
Held: Yes. That the testator was mentally capable of making the
will is in our opinion fully established by the testimony of the
subscribing witnesses who swore positively that, at the time of its
execution, he was of sound mind and memory. It is true that their
testimony discloses the fact that he was at that time extremely ill,
in an advanced stage of tuberculosis complicated with severe
intermittent attacks of asthma; that he was too sick to rise unaided
from his bed; that he needed assistance even to raise himself to a
sitting position; and that during the paroxysms of asthma to which
he was subject he could not speak; but all this evidence of physical
weakness in no wise establishes his mental incapacity or a lack of
testamentary capacity, and indeed the evidence of the subscribing
witnesses as to the aid furnished them by the testator in preparing
the will, and his clear recollection of the boundaries and physical
description of the various parcels of land set out therein, taken
together with the fact that he was able to give to the person who
wrote the will clear and explicit instructions as to his desires
touching the disposition of his property, is strong evidence of his
testamentary capacity.
But when it is considered that the deceased at the time of his death
had no heirs in the ascending or desending line; that a bitter family
quarrel had long separated him from his brothers and sisters, who
declined to have any relations with the testator because he and his
wife were adherents of the Aglipayano Church; and that this
quarrel was so bitter that none of his brothers or sisters, although
some of them lived in the vicinity, were present at the time of his
death or attended his funeral; we think the fact that the deceased
desired to leave and did leave all of his property to his widow and
made no provision for his brothers and sisters, who themselves
were grown men and women, by no means tends to disclose either
an unsound mind or the presence of undue influence on the part of
his wife, or in any wise corroborates contestants' allegation that
the will never was executed.
And while in some cases testamentary capacity has been held to
exist in the absence of proof of some of these elements, there can
be no question that, in the absence of proof of very exceptional
circumstances, proof of the existence of all these elements is
sufficient to establish the existence of testamentary capacity.
"Testamentary capacity is the capacity to comprehend the nature
of the transaction in which the testator is engaged at the time, to
recollect the property to be disposed of and the persons who
would naturally be supposed to have claims upon the testator, and
to comprehend the manner in which the instrument will distribute
his property among the objects of his bounty."
In our opinion, the evidence of record establishes in a strikingly
conclusive manner the execution of the instrument propounded as
the last will and testament of the deceased; that it was made in
strict conformity with the requisites prescribed by law; and that,
at the time of its execution, the deceased was of sound mind and
memory, and executed the instrument of his own free will and
accord.
Bagtas vs Paguio
22 Phil 227
Facts: This is an appeal from an order of the CFI of the Province of
Bataan, admitting to probate a document which was offered as the
last will and testament of Pioquinto Paguio y Pizarro. The will
purports to have been executed in the pueblo of Pilar, Province of
Bataan, on the 19th day of April, 1908. The testator died on the
28th of September, 1909, a year and five months following the
date of the execution of the will. The will was propounded by the
executrix, Juliana Bagtas, widow of the decedent, and the
opponents are a son and several grandchildren by a former
marriage, the latter being the children of a deceased daughter.
The basis of the opposition to the probation of the will is that the
same was not executed according to the formalities and
requirements of the law touching wills, and further that the
testator was not in the full enjoyment and use of his mental
faculties and was without the mental capacity necessary to
execute a valid will.
The record shows that the testator, Pioquinto Paguio, for some
fourteen or fifteen years prior to the time of his death suffered
from a paralysis of the left side of his body; that a few years prior
to his death his hearing became impaired and that he lost the
power of speech. Owing to the paralysis of certain muscles his
head fell to one side, and saliva ran from his mouth. He retained
the use of his right hand, however, and was able to write fairly
well. Through the medium of signs he was able to indicate his
wishes to his wife and to other members of his family.
At the time of the execution of the will there were present the four
testamentary witnesses, Agustin Paguio, Anacleto Paguio,
Francisco Paguio, and Pedro Paguio, an attorney, Señor Marco, and
one Florentino Ramos. Anacleto Paguio and the attorney have
since died, and consequently their testimony was not available
upon the trial of the case in the lower court. The other three
testamentary witnesses and the witness Florentino Ramos
testified as to the manner in which the will was executed.
According to the uncontroverted testimony of these witnesses the
will was executed in the following manner: Pioquinto Paguio, the
testator, wrote out on pieces of paper notes and items relating to
the disposition of his property, and these notes were in turn
delivered to Señor Marco, who transcribed them and put them in
form. The witnesses testify that the pieces of paper upon which
the notes were written were delivered to the attorney by the
testator; that the attorney read them to the testator asking if they
were his testamentary dispositions; that the testator assented
each time with an affirmative movement of his head; that after the
will as a whole had been thus written by the attorney, it was read
in a loud voice in the presence of the testator and the witnesses;
that Señor Marco gave the document to the testator; that the latter,
after looking over it, signed it in the presence of the four
subscribing witnesses; and that they in turn signed it in the
presence of the testator and of each other.
Upon this point considerable evidence was adduced at the trial.
One of the attesting witnesses testified that at the time of the
execution of the will the testator was in his right mind, and that
although he was seriously ill, he indicated by movements of his
head what his wishes were. Another of the attesting witnesses
stated that he was not able to say whether decedent had the full
use of his mental faculties or not, because he had been ill for some
years, and that he (the witness) was not a physician. The other
subscribing witness, Pedro Paguio, testified in the lower court as a
witness for the opponents. He was unable to state whether or not
the will was the wish of the testator. The only reasons he gave for
his statement were the infirmity and advanced age of the testator
and the fact that he was unable to speak. This witness stated that
the testator signed the will, and he verified his own signature as a
subscribing witness.
Florentino Ramos, although not an attesting witness, stated that he
was present when the will was executed and his testimony was
cumulative in corroboration of the manner in which the will was
executed and as to the fact that the testator signed the will. This
witness also stated that he had frequently transacted matters of
business for the decedent and had written letters and made
inventories of his property at his request, and that immediately
before and after the execution of the will he had performed offices
of this character. He stated that the decedent was able to
communicate his thoughts by writing. The testimony of this
witness clearly indicates the presence of mental capacity on the
part of the testator. Among other witnesses for the opponents
were two physicians, Doctor Basa and Doctor Viado. Doctor Basa
testified that he had attended the testator some four or five years
prior to his death and that the latter had suffered from a cerebral
congestion from which the paralysis resulted.
Doctor Basa testified at more length, but the substance of his
testimony is that the testator had suffered a paralysis and that he
had noticed some mental disorder. He does not say that the
testator was not in his right mind at the time of the execution of
the will, nor does he give it as his opinion that he was without the
necessary mental capacity to make a valid will. He did not state in
what way this mental disorder had manifested itself other than
that he had noticed that the testator did not reply to him on one
occasion when he visited him.
Doctor Viado, the other physician, had never seen the testator, but
his answer was in reply to a hypothetical question as to what
would be the mental condition of a person who was 79 years old
and who had suffered from a malady such as the testator was
supposed to have had according to the testimony of Doctor Basa,
whose testimony Doctor Viado had heard. He replied and
discussed at some length the symptoms and consequences of the
disease from which the testator had suffered; he read in support of
his statements from a work by a German physician, Dr. Herman
Eichost. In answer, however, to a direct question, he stated that he
would be unable to certify to the mental condition of a person who
was suffering from such a disease.
Issue: Whether the deceased was of sound mind in has the
testamentary capacity to execute a will
Held: Yes. We do not think that the testimony of these two
physicians in any way strengthens the contention of the
appellants. Their testimony only confirms the fact that the testator
had been for a number of years prior to his death afflicted with
paralysis, in consequence of which his physical and mental
strength was greatly impaired. Neither of them attempted to state
what was the mental condition of the testator at the time he
executed the will in question. There can be no doubt that the
testator's infirmities were of a very serious character, and it is
quite evident that his mind was not as active as it had been in the
earlier years of his life. However, we cannot conclude from this
that he was wanting in the necessary mental capacity to dispose of
his property by will.
There are many cases and authorities which we might cite to show
that the courts have repeatedly held that mere weakness of mind
and body, induced by age and disease do not render a person
incapable of making a will. The law does not require that a person
shall continue in the full enjoyment and use of his pristine physical
and mental powers in order to execute a valid will. If such were
the legal standard, few indeed would be the number of wills that
could meet such exacting requirements. The authorities, both
medical and legal, are universal in the statement that the question
of mental capacity is one of degree, and that there are many
gradations from the highest degree of mental soundness to the
lowest conditions of diseased mentality which are denominated as
insanity and idiocy. The right to dispose of property by
testamentary disposition is as sacred as any other right which a
person may exercise and this right should not be nullified unless
mental incapacity is established in a positive and conclusive
manner.
In the above case the will was sustained. In the case at bar we
might draw the same contrast as was pictured by the court in the
case just quoted. The striking change in the physical and mental
vigor of the testator during the last years of his life may have led
some of those who knew him in his earlier days to entertain
doubts as to his mental capacity to make a will, yet we think that
the statements of the witnesses to the execution of the will and the
statements of the, conduct of the testator at that time all indicate
that he unquestionably had mental capacity and that he exercised
it on this occasion. At the time of the execution of the will it does
not appear that his conduct was irrational in any particular. He
seems to have comprehended clearly what the nature of the
business was in which he was engaged. The evidence shows that
the writing and execution of the will occupied a period of several
hours and that the testator was present during all this time, taking
an active part in all the proceedings. Again, the will in the case at
bar is perfectly reasonable and its dispositions are those of a
rational person.
Neyra vs Neyra
76 Phil 333
Facts: Severo Neyra died intestate on May 6, 1938, leaving certain
properties and two children, by his first marriage, named
Encarnacion Neyra and Trinidad Neyra, and other children by his
second marriage; that after his death, the two sisters, Encarnacion
Neyra and Trinidad Neyra, had serious misunderstandings, in
connection with the properties left by their deceased father, and
so serious were their dissensions that, after March 31, 1939, they
had two litigations concerning said properties. In the first case,
Trinidad Neyra and others demanded from Encarnacion Neyra
and others the annulment of the sale of the property located at No.
366 Raon Street, Manila, which was finally decided in favor of the
defendants and the second is the instant case.
On October 25, 1939, Trinidad Neyra filed a complaint against her
sister, Encarnacion Neyra, for the recovery of one-half of the
property mentioned and described therein, which had been left by
their deceased father, and which had been previously divided
equally between the two extrajudicially, demanding at the same
time one-half of the rents collected on the said property by the
defendant Encarnacion Neyra.
The defendant filed an answer admitting that the property
mentioned and described therein was community property, and at
the same time set up counterclaims amounting to over P1,000, for
money spent, during the last illness of their father, and for money
loaned to the plaintiff.
In the meanwhile, Encarnacion Neyra, who had been sickly for
about two years, unexpectedly died, on November 4, 1942, at the
age of 48, allegedly from heart attack, as a consequence of
Addison's disease from which, it was claimed, she had been
suffering for sometime.
In view of the decision of the Court of Appeals, dated November
10, 1942, dismissing the appeal, by virtue of said agreement or
compromise, Atty. Lucio Javillonar, claiming to represent
Encarnacion Neyra, who had died since November 4, 1942, and
other relatives of hers, filed a petition, dated November 23, 1942,
asking for the reconsideration of said decision of the Court of
Appeals, dismissing the appeal, claiming that the alleged
compromise or agreement, dated November 3, 1942, could not
have been understood by Encarnacion Neyra, as she was already
then at the threshold of death, and that as a matter of' fact she died
the following day; and that if it had been signed at all by said
Encarnacion Neyra, her thumb mark appearing on said document
must have been affixed thereto by Trinidad Neyra's attorney,
against Encarnacion's will; and that the court had no more
jurisdiction over the case, when the alleged agreement was filed
on November 4, 1942, at the instance of Trinidad Neyra, as
Encarnacion was already dead at the time.
Issue: Whether or not said compromise or agreement had been
legally executed and signed by Encarnacion Neyra
Held: The foregoing facts have been established by the witnesses
presented by Trinidad Neyra, who are all trustworthy men, and
who had absolutely no interest in the final outcome of this case.
Two of them are ministers of the Gospel, while three of the
attesting witnesses are professional men of irreproachable
character, who had known and seen and actually talked to the
testatrix.
Petitioner Teodora Neyra, half sister of Encarnacion, and her
young daughter Ceferina de la Cruz, and Presentacion Blanco,
daughter of petitioner Maria Jacobo Vda. de Blanco, substantially
corroborated the testimony of the witnesses presented by
Trinidad Neyra, with reference to the signing of documents, in the
bedroom of Encarnacion Neyra, in the afternoon of November 3,
1942.
And it has been conclusively shown that Encarnacion Neyra died
on November 4, 1942, due to a heart attack, at the age of 48, after
an illness of about two (2) years.
In connection with mental capacity, in several cases, this court has
considered the testimony of witnesses, who had known and talked
to the testators, more trustworthy than the testimony of alleged
medical experts.
Insomnia, in spite of the testimony of two doctors, who testified
for the opponents to the probate of a will, to the effect that it
tended to destroy mental capacity, was held not to affect the full
possession of the mental faculties deemed necessary and sufficient
for its execution.
Presentacion Blanco, in the course of her cross-examination,
frankly admitted that, in the morning and also at about 6 o'clock in
the afternoon of November 3, 1942, Encarnacion Neyra talked to
her and that they understood each other clearly, thus showing that
the testatrix was really of sound mind, at the time of signing and
execution of the agreement and will in question. It may, therefore,
be reasonably concluded that the mental faculties of persons
suffering from Addison's disease, like the testatrix in this case,
remain unimpaired, partly due to the fact that, on account of the
sleep they enjoy, they necessarily receive the benefit of physical
and mental rest. And that like patients suffering from tuberculosis,
insomnia or diabetes, they preserve their mental faculties until the
moments of their death. Judging by the authorities above cited, the
logical conclusion is that Encarnacion Neyra was of sound mind
and possessed the necessary testamentary and mental capacity, at
the time of the execution of the agreement and will, dated
November 3, 1942.
The contention that the attesting witnesses were not present, at
the time Encarnacion Neyra thumbmarked the agreement and will
in question, on her bed, in the sala of the house, as they were
allegedly in the caida, is untenable. It has been fully shown that
said witnesses were present at the time of the signing and
execution of the agreement and will in question, in the sala, where
the testatrix was lying on her bed. The true test is not whether
they actually saw each other, at the time of the signing of the
documents, but whether they might have seen each other sign, had
they chosen to do so; and the attesting witnesses actually saw it all
in this case. And the thumbmark placed by the testatrix on the
agreement and will in question is equivalent to her signature.
It having been shown that the said compromise or agreement had
been legally signed and executed by Encarnacion Neyra on
November 3, 1942, in the presence of credible and trustworthy
witnesses, and that she was compos mentis and possessed the
necessary testamentary and mental capacity at the time.
Baltazar vs Laxa
G.R. No. 174489
11 April 2012
Facts: Paciencia was a 78 year old spinster when she made her
last will and testament entitled “Tauli Nang Bilin o Testamento
Miss Paciencia Regala” in the Pampango dialect on September 13,
1981. The Will, executed in the house of retired Judge Ernestino G.
Limpin (Judge Limpin), was read to Paciencia twice. After which,
Paciencia expressed in the presence of the instrumental witnesses
that the document is her last will and testament. She thereafter
affixed her signature at the end of the said document on page 3
and then on the left margin of pages 1, 2 and 4 thereof. The
witnesses to the Will were Dra. Maria Lioba A. Limpin (Dra.
Limpin), Francisco Garcia (Francisco) and Faustino R. Mercado
(Faustino). The three attested to the Will’s due execution by
affixing their signatures below its attestation clause and on the left
margin of pages 1, 2 and 4 thereof, in the presence of Paciencia
and of one another and of Judge Limpin who acted as notary
public. Childless and without any brothers or sisters, Paciencia
bequeathed all her properties to respondent Lorenzo R. Laxa
(Lorenzo) and his wife Corazon F. Laxa and their children Luna
Lorella Laxa and Katherine Ross Laxa.
The filial relationship of Lorenzo with Paciencia remains
undisputed. Lorenzo is Paciencia’s nephew whom she treated as
her own son. Conversely, Lorenzo came to know and treated
Paciencia as his own mother. Paciencia lived with Lorenzo’s family
in Sasmuan, Pampanga and it was she who raised and cared for
Lorenzo since his birth. Six days after the execution of the Will or
on September 19, 1981, Paciencia left for the United States of
America. There, she resided with Lorenzo and his family until her
death on January 4, 1996.
In the interim, the Will remained in the custody of Judge Limpin.
More than four years after the death of Paciencia, Lorenzo filed a
petition for the probate of the Will of Paciencia and for the
issuance of Letters of Administration in his favor.
There being no opposition to the petition after its due publication,
the RTC issued an Order allowing Lorenzo to present evidence. On
said date, Dra. Limpin testified that she was one of the
instrumental witnesses in the execution of the last will and
testament of Paciencia on September 13, 1981. The Will was
executed in her father’s (Judge Limpin) home office, in her
presence and of two other witnesses, Francisco and Faustino. Dra.
Limpin positively identified the Will and her signatures on all its
four pages. She likewise positively identified the signature of her
father appearing thereon. Questioned by the prosecutor regarding
Judge Limpin’s present mental fitness, Dra. Limpin testified that
her father had a stroke in 1991 and had to undergo brain surgery.
The judge can walk but can no longer talk and remember her
name. Because of this, Dra. Limpin stated that her father can no
longer testify in court.
The following day Antonio Baltazar filed an opposition to
Lorenzo’s petition. Antonio averred that the properties subject of
Paciencia’s Will belong to Nicomeda Regala Mangalindan, his
predecessor-in-interest; hence, Paciencia had no right to bequeath
them to Lorenzo.
Barely a month after, Antonio, now joined by other petitioners
filed a Supplemental Opposition contending that Paciencia’s Will
was null and void because ownership of the properties had not
been transferred and/or titled to Paciencia before her death
pursuant to Article 1049, paragraph 3 of the Civil Code.
Later, petitioners filed an Amended Opposition asking the RTC to
deny the probate of Paciencia’s Will on the following grounds: the
Will was not executed and attested to in accordance with the
requirements of the law; that Paciencia was mentally incapable to
make a Will at the time of its execution; that she was forced to
execute the Will under duress or influence of fear or threats; that
the execution of the Will had been procured by undue and
improper pressure and influence by Lorenzo or by some other
persons for his benefit; that the signature of Paciencia on the Will
was forged; that assuming the signature to be genuine, it was
obtained through fraud or trickery; and, that Paciencia did not
intend the document to be her Will.
Issue: Whether the authenticity and due execution of the notarial
Will was sufficiently established to warrant its allowance for
probate
Held: (1) Faithful compliance with the formalities laid down by
law is apparent from the face of the Will.
Due execution of the will or its extrinsic validity pertains to
whether the testator, being of sound mind, freely executed the will
in accordance with the formalities prescribed by law. These
formalities are enshrined in Articles 805 and 806 of the New Civil
Code, to wit:
“Art. 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the
testator’s name written by some other person in his presence, and
by his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of one
another.
The testator or the person requested by him to write his name and
the instrumental witnesses of the will, shall also sign, as aforesaid,
each and every page thereof, except the last, on the left margin,
and all the pages shall be numbered correlatively in letters placed
on the upper part of each page.
The attestation shall state the number of pages used upon which
the will is written, and the fact that the testator signed the will and
every page thereof, or caused some other person to write his
name, under his express direction, in the presence of the
instrumental witnesses, and that the latter witnessed and signed
the will and all the pages thereof in the presence of the testator
and of one another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them.
Art. 806. Every will must be acknowledged before a notary public
by the testator and the witnesses. The notary public shall not be
required to retain a copy of the will, or file another with the Office
of the Clerk of Court.”
Here, a careful examination of the face of the Will shows faithful
compliance with the formalities laid down by law. The signatures
of the testatrix, Paciencia, her instrumental witnesses and the
notary public, are all present and evident on the Will. Further, the
attestation clause explicitly states the critical requirement that the
testatrix and her instrumental witnesses signed the Will in the
presence of one another and that the witnesses attested and
subscribed to the Will in the presence of the testator and of one
another. In fact, even the petitioners acceded that the signature of
Paciencia in the Will may be authentic although they question her
state of mind when she signed the same as well as the voluntary
nature of said act.
(2) The burden to prove that Paciencia was of unsound mind at
the time of the execution of the will lies on the shoulders of the
petitioners.
We agree with the position of the CA that the state of being
forgetful does not necessarily make a person mentally unsound so
as to render him unfit to execute a Will. Forgetfulness is not
equivalent to being of unsound mind. Besides, Article 799 of the
New Civil Code states:
“Art. 799. To be of sound mind, it is not necessary that the testator
be in full possession of all his reasoning faculties, or that his mind
be wholly unbroken, unimpaired, or unshattered by disease, injury
or other cause.
It shall be sufficient if the testator was able at the time of making
the will to know the nature of the estate to be disposed of, the
proper objects of his bounty, and the character of the testamentary
act.”
In this case, apart from the testimony of Rosie pertaining to
Paciencia’s forgetfulness, there is no substantial evidence, medical
or otherwise, that would show that Paciencia was of unsound
mind at the time of the execution of the Will. On the other hand,
we find more worthy of credence Dra. Limpin’s testimony as to the
soundness of mind of Paciencia when the latter went to Judge
Limpin’s house and voluntarily executed the Will.
“The testimony of subscribing witnesses to a Will concerning the
testator’s mental condition is entitled to great weight where they
are truthful and intelligent.”More importantly, a testator is
presumed to be of sound mind at the time of the execution of the
Will and the burden to prove otherwise lies on the oppositor.
Article 800 of the New Civil Code states:
“Art. 800. The law presumes that every person is of sound mind, in
the absence of proof to the contrary. The burden of proof that the
testator was not of sound mind at the time of making his
dispositions is on the person who opposes the probate of the will;
but if the testator, one month, or less, before making his will was
publicly known to be insane, the person who maintains the
validity of the will must prove that the testator made it during a
lucid interval.”
Here, there was no showing that Paciencia was publicly known to
be insane one month or less before the making of the Will.
(3) Bare allegations of duress or influence of fear or threats, undue
and improper influence and pressure, fraud and trickery cannot be
used as basis to deny the probate of a will.
An essential element of the validity of the Will is the willingness of
the testator or testatrix to execute the document that will
distribute his/her earthly possessions upon his/her death.
We take into consideration the unrebutted fact that Paciencia
loved and treated Lorenzo as her own son and that love even
extended to Lorenzo’s wife and children. This kind of relationship
is not unusual. It is in fact not unheard of in our culture for old
maids or spinsters to care for and raise their nephews and nieces
and treat them as their own children. Such is a prevalent and
accepted cultural practice that has resulted in many family
discords between those favored by the testamentary disposition of
a testator and those who stand to benefit in case of intestacy.
In this case, evidence shows the acknowledged fact that
Paciencia’s relationship with Lorenzo and his family is different
from her relationship with petitioners. The very fact that she cared
for and raised Lorenzo and lived with him both here and abroad,
even if the latter was already married and already has children,
highlights the special bond between them. This unquestioned
relationship between Paciencia and the devisees tends to support
the authenticity of the said document as against petitioners’
allegations of duress, influence of fear or threats, undue and
improper influence, pressure, fraud, and trickery which, aside
from being factual in nature, are not supported by concrete,
substantial and credible evidence on record. It is worth stressing
that bare arguments, no matter how forceful, if not based on
concrete and substantial evidence cannot suffice to move the
Court to uphold said allegations.
Formalities of Wills
Acop vs Piraso
52 Phil 660
Facts: This appeal was taken from the judgment of the Court of
First Instance of Benguet, denying the probate of the instrument as
the last will and testament of the deceased Piraso. The proponent-
appellant assigns the following as alleged errors of the lower
court:
(1) In holding that in order to be valid the will in question should
have been drawn up in the Ilocano dialect.
(2) In not holding that the testator Piraso did not know the Ilocano
dialect well enough to understand a will drawn up in said dialect.
(3) In refusing to admit the will in question to probate."
The fundamental errors assigned refer chiefly to the part of
the judgment which reads as follows:
"The evidence shows that Piraso knew how to speak the Ilocano
dialect, although imperfectly, and could make himself understood
in that dialect, and the court is of the opinion that his will should
have been written in that dialect."
Issue: Whether the will was valid
Held: Such statements were unnecessary for the decision of the
case, once it has been proved without contradiction, that the said
deceased Piraso did not know English, in which language the
instrument, alleged to be his will, is drawn. Section 618 of the Code
of Civil Procedure, strictly provides that:
"No will, except as provided in the preceding section" (as to wills
executed by a Spaniard or a resident of the Philippine Islands,
before the present Code of Civil Procedure went into effect), "shall
be valid to pass any estate, real or personal, nor charge or affect
the same, unless it be written in the language or dialect known by
the testator," etc. Nor can the presumption in favor of a will
established by this court in Abangan vs. Abangan (40 Phil., 476), to
the effect that the testator is presumed to know the dialect of the
locality where he resides, unless there is proof to the contrary,
even be invoked in support of the probate of said document as a
will, because, in the instant case, not only is it not proven that
English is the language of the City of Baguio where the deceased
Piraso lived and where was drawn, but that the record contains
positive proof that said Piraso knew no other language than the
Igorrote dialect, with a smattering of Ilocano; that is, he did not
know the English language in which said will is written.
So that even if such a presumption could have been raised in this
case it would have been wholly contradicted and destroyed. We
consider the other questions raised in this appeal needless and
immaterial to the adjudication of this case, it having been, as it
was, proven, that the instrument in question could not be
probated as the last will and testament of the deceased Piraso,
having been written in the English language with which the latter
was unacquainted.
Jaboneta vs Gustilo
5 Phil 541
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."
Issue: Whether the requirements for a valid will was complied
Held: Yes. We cannot 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.
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.
Avera vs Garcia
42 Phil 145
Facts: In proceedings in the court below, instituted by Eutiquia
Avera for probate of the will of one Esteban Garcia, contest was
made by Marino Garcia and Juan Rodriguez, the latter in the
capacity of guardian for the minors Jose Garcia and Cesar Garcia.
Upon the date appointed for the hearing, the proponent of the will
introduced one of the three attesting witnesses who testified—
with details not necessary to be here specified—that the will was
executed with all necessary external formalities, and that the
testator was at the time in full possession of disposing faculties.
Upon the latter point the witness was corroborated by the person
who wrote the will at the request of the testator. Two of the
attesting witnesses were not introduced, nor was their absence
accounted for by the proponent of the will. When the proponent
rested the attorney for the opposition introduced a single witness
whose testimony tended to show in, a vague and indecisive
manner that at the time the will was made the testator was so
debilitated as to be unable to comprehend what he was about.
After the cause had been submitted for determination upon the
proof thus presented, the trial judge found that the testator at the
time of the making of the will was of sound mind and disposing
memory and that the will had been properly executed. He
accordingly admitted the will to probate.
Issue: (1) Whether a will can be admitted to probate, where
opposition is made, upon the proof of a single at testing witness,
without producing or accounting for the absence of the other
(2) Whether the will in question is rendered invalid by reason of
the fact that the signature of the testator and of the three attesting
witnesses are written on the right margin of each page of the will
instead of the left margin
Held: (1) Upon the first point, while it is undoubtedly true that an
uncontested will may be proved by the testimony of only one of
the three attesting witnesses, nevertheless in Cabang vs. Delfinado
(34 Phil., 291), this court declared after an elaborate examination
of the American and English authorities that when a contest is
instituted, all of the attesting witnesses must be examined, if alive
and within reach of the process of the court.
In the present case no explanation was made at the trial as to why
all three of the attesting witnesses were not produced, but the
probable reason is found in the fact that, although the petition for
the probate of this Will had been pending from December 21,
1917, until the date set for the hearing, which was April 5, 1919,
no formal contest was entered until the very day set for the
hearing; and it is probable that the attorney for the proponent,
believing in good faith that probate would not be contested,
repaired to the court with only one of the three attesting witnesses
at hand, and upon finding that the will was contested, incautiously
permitted the case to go to proof without asking for a
postponement of the trial in order that he might produce all the
attesting witnesses.
Although this circumstance may explain why the three witnesses
were not produced, it does not in itself supply any basis for
changing the rule expounded in the case above referred to; and
were it not for a fact now to be mentioned, this court would
probably be compelled to reverse this case on the ground that the
execution of the will had not been proved by a sufficient number of
attesting witnesses.
Properly understood, the case of Cabang vs. Delfinado, supra,
contains nothing inconsistent with the ruling we now make, for it
appears from the opinion in that case that the proponent of the
will had obtained an order for a republication and new trial for the
avowed purpose of presenting the two additional attesting
witnesses who had not been previously examined, but
nevertheless subsequently failed without any apparent reason to
take their testimony. Both parties in that case were therefore fully
apprised that the question of the number of witnesses necessary
to prove the will was in issue in the lower court.
(2) The second point involved in this case is whether, under
section 618 of the Code of Civil Procedure, as amended by Act No.
2645, it is essential to the validity of a will in this jurisdiction that
the names of the testator and the instrumental witnesses should
be written on the left margin of each page, as required in said Act,
and not upon the right margin, as in the will now before us; and
upon this we are of the opinion that the will in question is valid.
It is true that the statute says that the testator and the
instrumental witnesses shall sign their names on the left margin of
each and every page; and it is undeniable that the general doctrine
is to the effect that all statutory requirements as to the execution
of wills must be fully complied with. The same doctrine is also
deducible from cases heretofore decided by this court.
Still some details at times creep into legislative enactments which
are so trivial that it would be absurd to suppose that the
Legislature could have attached any decisive importance to them.
The provision to the effect that the signatures of the testator and
witnesses shall be written on the left margin of each page—rather
than on the right margin—seems to be of this character. So far as
concerns the authentication of the will, and of every part thereof, it
can make no possible difference whether the names appear on the
left or on the right margin, provided they are on one or the other.
The instrument now before us contains the necessary signatures
on every page, and the only point of deviation from the
requirement of the statute is that these signatures appear in the
right margin instead of the left. By the mode of signing here
adopted every page and provision of the will is authenticated and
guarded from possible alteration in exactly the same degree that it
would have been protected by being signed in the left margin; and
the resources of casuistry could be exhausted without discovering
the slightest difference between the consequences of affixing the
signatures in one margin or the other.
The controlling considerations on the point now before us were
well stated in Re: will of Abangan (40 Phil., 476, 479), where the
court, speaking through Mr. Justice Avanceña, in a case where the
signatures were placed at the bottom of the page and not in the
margin, said: "The object of the solemnities surrounding the
execution of wills is to close the door against bad faith and fraud,
to avoid substitution of wills and testaments and to guarantee
their truth and authenticity. Therefore, the laws on this subject
should be interpreted in such a way as to attain these primordial
ends. But, on the other hand, also one must not lose sight of the
fact that it is not the object of the law to restrain and curtail the
exercise of the right to make a will. So when an interpretation
already given as sure 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."
In the case before us, where ingenuity could not suggest any
possible prejudice to any person, as attendant upon the actual
deviation from the letter of the law, such deviation must be
considered too trivial to invalidate the instrument.
Icasiano vs Icasiano
11 SCRA 423
Facts: This special proceeding was begun on October 2, 1958 by a
petition for the allowance and admission to probate of the original,
Exhibit "A" as the alleged will of Josefa Villacorte, deceased, and
for the appointment of petitioner Celso Icasiano as executor
thereof.
The court set the proving of the alleged will for November 8, 1958,
and caused notice thereof to be published for three (3) successive
weeks, previous to the time appointed, in the newspaper "Manila
Chronicle", and also caused personal service of copies thereof
upon the known heirs.
On October 31, 1958, Natividad Icasiano, a daughter of the
testatrix, filed her opposition; and on November 10, 1958, she
petitioned to have herself appointed as a special administrator, to
which proponent objected. Hence, on November 18, 1958, the
court issued an order appointing the Philippine Trust Company as
special administrator.
On February 18, 1959, Enrique Icasiano, a son of the testatrix, also
filed a manifestation adopting as his own Natividad's opposition to
the probate of the alleged will.
On March 19, 1959, the petitioner proponent commenced the
introduction of his evidence; but on June 1, 1959, he filed a motion
for the admission of an amended and supplemental petition,
alleging that the decedent left a will executed in duplicate with all
the legal requirements, and that he was, on that dates submitting
the signed duplicate (Exhibit "A1"), which he allegedly found only
on or about May 26, 1959.
The evidence presented for the petitioner is to the effect that
Josefa Villacorte died in the City of Manila on September 12, 1958;
that on June 2, 1956, the late Josefa Villacorte executed a last will
and testament in duplicate at the house of her daughter Mrs. Felisa
Icasiano at Pedro Guevara Street, Manila, published before and
attested by three instrumental witnesses, namely: attorneys Justo
P. Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that the
will was acknowledged by the testatrix and by the said three
instrumental witnesses on the same date before attorney Jose
Oyengco Ong, Notary Public in and for the City of Manila; and that
the will was actually prepared by attorney Fermin Samson, who
was also present during the execution and signing of the
decedent's last will and testament, together with former Governor
Emilio Rustia of Bulacan, Judge Ramon Icasiano, and a little girl. Of
the said three instrumental witnesses to the execution of the
decedent's last will and testament, attorneys Torres and Natividad
were in the Philippines at the time of the hearing, and both
testified as to the due execution and authenticity of the said will So
did the Notary Public before whom the will was acknowledged by
the testatrix and attesting witnesses, and also attorneys Fermin
Samson, who actually prepared the document. The latter also
testified upon cross examination that he prepared one original and
two copies of Josefa Villacorte's last will and testament at his
house in Baliuag, Bulacan, but he brought only one original and
one signed copy to Manila, retaining one unsigned copy in Bulacan.
Issue: Whether the will is valid despite having only the signature
of the witness on the third page
Held: Yes. The records show that the original of the will, which.
was surrendered simultaneously with the filing of the petition and
marked as Exhibit "A" consists of five pages, and while signed at
the end and in every page, it does not contain the signature of one
of the attesting witnesses, Atty. Jose V. Natividad, on page three (3)
thereof; but the duplicate copy attached to the amended and
supplemental petition and marked as Exhibit' "A1" is signed by the
testatrix and her three attesting witnesses in each and every page.
The testimony presented by the proponents of the will tends to
show that the original of the will and its duplicate were subscribed
at the end and on the left margin of each and every page thereof by
the testatrix herself and attested and subscribed by the three
mentioned witnesses in the testatrix's presence and in that of one
another as witnesses (except for the missing signature of attorney
Natividad 011 page three (3) of the original); that pages of the
original and duplicate of said will were duly numbered; that the
attestation clause thereof contains all the facts required by law to
be recited therein and is signed by the aforesaid attesting
witnesses; that the will is written in the language known to and
spoken by the testatrix; that the attestation clause is in a language
also known to and spoken by the witnesses; that the will was
executed on one single occasion in duplicate copies; and that both
the original and the duplicate copies were duly acknowledged
before Notary Public Jose Oyengco of Manila on the same date—
June 2, 1956.
Witness Natividad, who testified on his failure to sign page three
(3) of the original, admits that he may have lifted two pages
instead of one when he signed the same, but affirmed that page
three (3) was signed in his presence. Oppositors-appellants in turn
introduced expert testimony to the effect that the signatures of the
testatrix in the duplicate (Exhibit "A1") are not genuine nor were
they written or affixed on the same occasion as "the original, and
further aver 'that granting that the documents were genuine, they
were executed through mistake and with undue influence and
pressure because the testatrix was deceived into adopting as her
last will and testament the wishes of those who will stand to
benefit from the provisions of the will, as may be inferred from the
facts and circumstances surrounding the execution of the will and
the provisions and dispositions thereof, whereby proponents-
appellees stand to profit; from properties held by them as
attorneys-in-fact of the deceased and not enumerated or
mentioned therein, while oppositors-appellants are enjoined not
to look for other properties not mentioned in the will, and not to
oppose the probate of it, on penalty of forfeiting their share in the
portion of free disposal.
We have examined the record and are satisfied, as the trial court
was, that the testatrix signed both original and duplicate copies
(Exhibits "A" and "A1", respectively) of the will spontaneously, on
the same occasion, in the presence of the three attesting witnesses,
the notary public who acknowledged the will; and Atty. Samson,
who actually prepared the documents; that the will and
itsduplicate were executed in Tagalog, a language known to and
spoken by both the testator and the witnesses, and read to and by
the testatrix and Atty. Fermin Samson, together before they were
actually signed; that the attestation clause is also in a language
known to and spoken by the testatrix and the witnesses. The
opinion of expert for oppositors, Mr, Felipe Logan, that the
signatures of the testatrix appearing in the duplicate original were
not written by the same hand which wrote the signatures in the
original will leaves us unconvinced, not merely because it is
directly contradicted by expert Martin Ramos for the proponents,
but principally because of the paucity of the standards used by him
to support the conclusion that the differences between the
standard and questioned signatures are beyond the writer's range
of normal scriptural variation. The expert has, in fact, used as
standards only three other signatures of the testatrix besides
those affixed to the original of the testament (Exh. A); and we feel
that with so few standards the expert's opinion and the signatures
in the duplicate could not be those of the testatrix becomes
extremely hazardous. This is particularly so since the comparison
charts Nos. 3 and 4 fail to show convincingly that there are radical
differences that would justify the charge of forgery, taking into
account the advanced age of the testatrix, the evident variability of
her signatures, and the effect of writing fatigue, the duplicate being
signed right the original. These factors were not discussed by the
expert.
Similarly, the alleged slight variance in blueness of the ink in the
admitted and questioned signatures does not appear reliable,
considering the standard and challenged writings were affixed to
different kinds of paper, with different surfaces and reflecting
power. On the whole therefore, we do not find the testimony of the
oppositor's expert sufficient to overcome that of the notary and
the two instrumental witnesses, Torres and Natividad (Dr. Diy,
being in the United States during the trial, did not testify). Nor do
we find adequate evidence of fraud or undue influence. The fact
that some heirs are more favored than others is proof of neither.
Diversity of apportionment is the usual reason for making a
testament; otherwise, the decedent might as well die intestate. The
testamentary dispositions that the heirs should not inquire into
other property and that they should respect the distribution made
in the will, under penalty of forfeiture of their shares in the free
part do not suffice to prove fraud or undue influence. They appear
motivated by the desire to prevent prolonged litigation which, as
shown by ordinary experience, often results in a sizeable portion
of the estate being diverted into the hands of non-heirs and
speculators. Whether these clauses are valid or not is a matter to
be litigated on another occasion.
On the question of law, we hold that the inadvertent failure of one
witness to affix his signature to one page of a testament, due to the
simultaneous lifting of two pages in the course of signing, is not
per se sufficient to justify denial of probate. Impossibility of
substitution of this page is assured not only the fact that the
testatrix and two other witnesses did sign the defective page, but
also by its bearing the coincident imprint of the seal of the notary
public before whom the testament was ratified by testatrix and all
three witnesses. The law should not be so strictly and literally
interpreted as to penalize the testatrix on account of the
inadvertence of a single witness over whose conduct she had no
control, where the purpose of the law to guarantee the identity of
the testament and its component pages are sufficiently attained,
no intentional or deliberate deviation existed, and the evidence on
record attests to the full observance of the statutory requisites.
Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459,
at 1479 (decision on reconsideration) "witnesses may sabotage
the will by muddling or bungling it or the attestation clause".
That the failure of witness Natividad to sign page three (3) was
entirely through pure oversight is shown by his own testimony as
well as by the duplicate copy of the will, which bears a complete
set of signatures in every page. The text of the attestation clause
and the acknowledgment before the Notary Public likewise
evidence that no one was aware of the defect at the time. This
would not be the first time that this Court departs from a strict and
literal application of the statutory requirements, where the
purposes of the law are otherwise satisfied. Thus, despite the
literal tenor of the law, this Court has held that a testament, with
the only page signed at its foot by testator and witnesses, but not
in the left margin, could nevertheless be probated (Abangan vs.
Abangan, 41 Phil. 476); and that despite the requirement for the
correlative lettering of the pages of a will, the failure to make the
first page either by letters or numbers is not a fatal defect (Lopez
vs. Liboro, 81 Phil. 429). These precedents exemplify the Court's
policy to require satisfaction of the legal requirements in order to
guard 'against fraud and bad faith but without undue or
unnecessary curtailment of the testamentary privilege.
The appellants also argue that since the original of the will is in
existence and available, the duplicate (Exh. A1) is not entitled to
probate. Since they opposed probate of original because it lacked
one signature in its third page, it is easily discerned that
oppositors-appellants run here into a dilemma; if the original is
defective and invalid, then in law there is no other will but the duly
signed carbon duplicate (Exh. A1), and the same is probatable. If
the original is valid and can be probated, then the objection to the
signed duplicate need not be considered, being superfluous and
irrelevant. At any rate, said duplicate, Exhibit A1, serves to prove
that the omission of one signature in the third page of the original
testament was inadvertent and not intentional. That the carbon
duplicate, Exhibit A1, was produced and admitted without a new
publication does not affect the jurisdiction of the probate court,
already conferred by the original publication of the petition for
probate. The amended petition did not substantially alter the one
first filed, but merely supplemented it by disclosing the existence
of the duplicate, and no showing is made that new interests were
involved (the contents of Exhibit A and A1 are admittedly
identical); and appellants were duly notified of the proposed
amendment. It is nowhere proved or claimed that the amendment
deprived the appellants of any substantial right, and we see no
error in admitting the amended petition.
Cagro vs Cagro
92 Phil 1033
Facts: This is an appeal interposed by the oppositors from a
decision of the Court of First Instance of Samar, admitting to
probate the will allegedly executed by Vicente Cagro who died in
Laoangan, Pambujan, Samar, on February 14, 1949.
The main objection insisted upon by the appellants is that the will
is fatally defective, because its attestation clause is not signed by
the attesting witnesses. There is no question that the signatures of
the three witnesses to the will do not appear at the bottom of the
attestation clause, although the page containing the same is signed
by the witnesses on the left-hand margin.
Issue: Whether the will is valid for not signing the attestation
clause
Held: No. The attestation clause is "a memorandum of the facts
attending the execution of the will" required by law to be made by
the attesting wit nesses, and it must necessarily bear their
signatures. An unsigned attestation clause cannot be considered as
an act of the witnesses, since the omission of their signatures at
the bottom thereof negatives their participation.
The petitioner and appellee contends that signatures of the three
witnesses on the left-hand margin conform substantially to the law
and may be deemed as their signatures to the attestation clause.
This is untenable, because said signatures are in compliance with
the legal mandate that the will be signed on the left-hand margin
of all its pages. If an attestation clause not signed by the three
witnesses at the bottom thereof, be admitted as sufficient, it would
be easy to add such clause to a will on a subsequent occasion and
in the absence of the testator and any or all of the witnesses.
Dissenting Opinion by Justice Bautista Angelo:
I dissent. In my opinion the will in question has substantially
complied with the formalities of the law and, therefore, should be
admitted to probate. It appears that the will was signed by the
testator and was attested by three instrumental witnesses, not
only at the bottom, but also on the left-hand margin. The witnesses
testified not only that the will was signed by the testator in their
presence and in the presence of each other but also that when they
did so, the attestation clause was already written thereon. Their
testimony has not been contradicted. The only objection set up by
the oppositors to the validity of the will is the fact that the
signatures of the instrumental witnesses do not appear
immediately after the attestation clause.
Nera vs Rimandi
18 Phil 450
Facts: This case is for the probate of the will of Pedro Rimando.
Issue: Whether the will is valid when 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.
Held: 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.
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
such 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
room 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 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.
Caneda vs CA
222 SCRA 781
Facts: The records show that on December 5, 1978, Mateo
Caballero, a widower without any children and already in the
twilight years of his life, executed a last will and testament at his
residence in Talisay, Cebu before three attesting witnesses,
namely, Cipriano Labuca, Gregorio Cabando and Flaviano
Toregosa. The said testator was duly assisted by his lawyer, Atty.
Emilio Lumontad, and a notary public, Atty. Filoteo Manigos, in the
preparation of that last will. It was declared therein, among other
things, that the testator was leaving by way of legacies and devises
his real and personal properties to Presentacion Gaviola, Angel
Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera
and Marcosa Alcantara, all of whom do not appear to be related to
the testator.
Four months, later, or on April 4, 1979, Mateo Caballero himself
filed a petition docketed as Special Proceeding seeking the probate
of his last will and testament. On May 29, 1980, the testator passed
away before his petition could finally be heard by the probate
court. On February 25, 1981, Benoni Cabrera, one of the legatees
named in the will, sought his appointment as special administrator
of the testator’s estate, the estimated and he was so appointed by
the probate court in its order of March 6, 1981.
Thereafter, herein petitioners, claiming to be nephews and nieces
of the testator, instituted a second petition, entitled “In the Matter
of the Intestate Estate of Mateo Caballero”.
On October 18, 1982, herein petitioners had their said petition for
intestate proceedings consolidated with Special Proceeding No.
3899-R and opposed thereat the probate of the testator’s will and
the appointment of a special administrator for his estate.
Benoni Cabrera died on February 1982 hence the probate court,
appointed William Cabrera as special administrator. Thereafter, it
issued an order for the return of the records of Special Proceeding
to the archives since the testate proceedings for the probate of the
will had to be heard and resolved first.
In the course of the hearing in Special Proceeding herein
petitioners appeared as oppositors and objected to the allowance
of the testator’s will on the ground that on the alleged date of its
execution, the testator was already in a poor state of health such
that he could not have possibly executed the same. Petitioners
likewise reiterated the issue as to the genuineness of the signature
of the testator therein.
On the other hand, one of the attesting witnesses, Cipriano Labuca,
and the notary public, Atty. Filoteo Manigos, testified that the
testator executed the will in question in their presence while he
was of sound and disposing mind and that, contrary to the
assertions of the oppositors, Mateo Caballero was in good health
and was not unduly influenced in any way in the execution of his
will. Labuca also testified that he and the other witnesses attested
and signed the will in the presence of the testator and of each
other. The other two attesting witnesses were not presented in the
probate hearing as they had died by then.
Issue: Whether or not the attestation clause contained in the last
will and testament of the late Mateo Caballero complies with the
requirements of Article 805, in relation to Article 809, of the Civil
Code.
Held: Yes. (1) A will has been defined as a species of conveyance
whereby a person is permitted, with the formalities prescribed by
law, to control to a certain degree the disposition of his estate after
his death. Under the Civil Code, there are two kinds of wills which
a testator may execute. The first kind is the ordinary or attested
will, the execution of which is governed by Articles 804 to 809 of
the Code.
(2) An examination of the last will and testament of Mateo
Caballero shows that it is comprised of three sheets all of which
have been numbered correlatively, with the left margin of each
page thereof bearing the respective signatures of the testator and
the three attesting witnesses. The part of the will containing the
testamentary dispositions is expressed in the Cebuano-Visayan
dialect and is signed at the foot thereof by the testator. The
attestation clause in question, on the other hand, is recited in the
English language and is likewise signed at the end thereof by the
three attesting witnesses thereto. Since it is the proverbial bone of
contention, we reproduce it again for facility of reference:
“We, the undersigned attesting Witnesses, whose Residences and
postal addresses appear on the Opposite of our respective names,
we do hereby certify that the Testament was read by him and the
testator, MATEO CABALLERO, has published unto us the foregoing
Will consisting of THREE PAGES, including the Acknowledgment,
each page numbered correlatively in letters on the upper part of
each page, as his Last Will and Testament and he has signed the
same and every page thereof, on the spaces provided for his
signature and on the left hand margin, in the presence of the said
testator and in the presence of each and all of us.”
It will be noted that Article 805 requires that the witnesses should
both attest and subscribe to the will in the presence of the testator
and of one another. “Attestation” and “subscription” differ in
meaning. Attestation is the act of the senses, while subscription is
the act of the hand. The former is mental, the latter mechanical,
and to attest a will is to know that it was published as such, and to
certify the facts required to constitute an actual and legal
publication; but to subscribe a paper published as a will is only to
write on the same paper the names of the witnesses, for the sole
purpose of identification.
It is contended by petitioners that the aforequoted attestation
clause, in contravention of the express requirements of the third
paragraph of Article 805 of the Civil Code for attestation clauses,
fails to specifically state the fact that the attesting witnesses
witnessed the testator sign the will and all its pages in their
presence and that they, the witnesses, likewise signed the will and
every page thereof in the presence of the testator and of each
other.
We agree.
What is fairly apparent upon a careful reading of the attestation
clause herein assailed is the fact that while it recites that the
testator indeed signed the will and all its pages in the presence of
the three attesting witnesses and states as well the number of
pages that were used, the same does not expressly state therein
the circumstance that said witnesses subscribed their respective
signatures to the will in the presence of the testator and of each
other.
The phrase “and he has signed the same and every page thereof,
on the spaces provided for his signature and on the left hand
margin,” obviously refers to the testator and not the instrumental
witnesses as it is immediately preceded by the words “as his Last
Will and Testament.” On the other hand, although the words “in
the presence of the testator and in the presence of each and all of
us” may, at first blush, appear to likewise signify and refer to the
witnesses, it must, however, be interpreted as referring only to the
testator signing in the presence of the witnesses since said phrase
immediately follows the words “he has signed the same and every
page thereof, on the spaces provided for his signature and on the
left hand margin.” What is then clearly lacking, in the final logical
analysis, is the statement that the witnesses signed the will and
every page thereof in the presence of the testator and of one
another.
It is our considered view that the absence of that statement
required by law is a fatal defect or imperfection which must
necessarily result in the disallowance of the will that is here
sought to be admitted to probate. Petitioners are correct in
pointing out that the aforestated defect in the attestation clause
obviously cannot be characterized as merely involving the form of
the will or the language used therein which would warrant the
application of the substantial compliance rule, as contemplated in
the pertinent provision thereon in the Civil Code, to wit:
“Art. 809. In the absence of bad faith, forgery, or fraud, or undue
and improper pressure and influence, defects and imperfections in
the form of attestation or in the language used therein shall not
render the will invalid if it is proved that the will was in fact
executed and attested in substantial compliance with all the
requirements of article 805” (Italics supplied.)
While it may be true that the attestation clause is indeed
subscribed at the end thereof and at the left margin of each page
by the three attesting witnesses, it certainly cannot be conclusively
inferred therefrom that the said witnesses affixed their respective
signatures in the presence of the testator and of each other since,
as petitioners correctly observed, the presence of said signatures
only establishes the fact that it was indeed signed, but it does not
prove that the attesting witnesses did subscribe to the will in the
presence of the testator and of each other. The execution of a will
is supposed to be one act so that where the testator and the
witnesses sign on various days or occasions and in various
combinations, the will cannot be stamped with the imprimatur of
effectivity.
We believe that the following comment of former Justice J.B.L.
Reyes regarding Article 809, wherein he urged caution in the
application of the substantial compliance rule therein, is correct
and should be applied in the case under consideration, as well as
to future cases with similar questions:
“x x x The rule must be limited to disregarding those defects that
can be supplied by an examination of the will itself: whether all the
pages are consecutively numbered; whether the signatures appear
in each and every page; whether the subscribing witnesses are
three or the will was notarized. All these are facts that the will
itself can reveal, and defects or even omissions concerning them in
the attestation clause can be safely disregarded. But the total
number of pages, and whether all persons required to sign did so in
the presence of each other must substantially appear in the
attestation clause, being the only check against perjury in the
probate proceedings.” (Emphasis ours.)
(3) We stress once more that under Article 809, the defects or
imperfections must only be with respect to the form of the
attestation or the language employed therein. Such defects or
imperfections would not render a will invalid should it be proved
that the will was really executed and attested in compliance with
Article 805. In this regard, however, the manner of proving the due
execution and attestation has been held to be limited to merely an
examination of the will itself without resorting to evidence
aliunde, whether oral or written.
The foregoing considerations do not apply where the attestation
clause totally omits the fact that the attesting witnesses signed
each and every page of the will in the presence of the testator and
each other.
In the case at bar, contrarily, proof of the acts required to have
been performed by the attesting witnesses can be supplied only by
extrinsic evidence thereof, since an overall appreciation of the
contents of the will yields no basis whatsoever from which such
facts may be plausibly deduced. What private respondent insists
on are the testimonies of his witnesses alleging that they saw the
compliance with such requirements by the instrumental
witnesses, oblivious of the fact that he is thereby resorting to
extrinsic evidence to prove the same and would accordingly be
doing by indirection what in law he cannot do directly.
4. Prior to the advent of the Civil Code on August 30, 1950, there
was a divergence of views as to which manner of interpretation
should be followed in resolving issues centering on compliance
with the legal formalities required in the execution of wills. The
formal requirements were at that time embodied primarily in
Section 618 of Act No. 190, the Code of Civil Procedure. Said
decision was later amended by Act No. 2645, but the provisions
respecting said formalities found in Act No. 190 and the
amendment thereto were practically reproduced and adopted in
the Civil Code.
One view advanced the liberal or substantial compliance rule. The
other view which advocated the rule that statutes which prescribe
the formalities that should be observed in the execution of wills
are mandatory in nature and are to be strictly construed.
The Code Commission, cognizant of such a conflicting welter of
views and of the undeniable inclination towards a liberal
construction, recommended the codification of the substantial
compliance rule, as it believed this rule to be in accord with the
modern tendency to give a liberal approach to the interpretation
of wills. Said rule thus became what is now Article 809 of the Civil
Code, with this explanation of the Code Commission:
“The present law provides for only one form of executing a will,
and that is, in accordance with the formalities prescribed by
Section 618 of the Code of Civil Procedure as amended by Act No.
2645. The Supreme Court of the Philippines had previously upheld
the strict compliance with the legal formalities and had even said
that the provisions of Section 618 of the Code of Civil Procedure,
as amended regarding the contents of the attestation clause were
mandatory, and noncompliance therewith invalidated the will (Uy
Coque vs. Sioca, 43 Phil. 405). These decisions necessarily
restrained the freedom of the testator in disposing of his property.
“However, in recent years the Supreme Court changed its attitude
and has become more liberal in the interpretation of the
formalities in the execution of wills.
The socalled liberal rule, the Court said in Gil vs. Murciano, “does
not offer any puzzle or difficulty, nor does it open the door to
serious consequences. The later decisions do tell us when and
where to stop; they draw the dividing line with, precision. They do
not allow evidence aliunde to fill a void in any part of the
document or supply missing details that should appear in the will
itself. They only permit a probe into the will, an exploration into
its confines, to ascertain its meaning or to determine the existence
or absence of the requisite formalities of law. This clear, sharp
limitation eliminates uncertainty and ought to banish any fear of
dire results.”
It may thus be stated that the rule, as it now stands, is that
omission which can be supplied by an examination of the will
itself, without the need of resorting to extrinsic evidence, will not
be fatal and, correspondingly, would not obstruct the allowance to
probate of the will being assailed.
However, those omissions which cannot be supplied except by
evidence aliunde would result in the invalidation of the attestation
clause and ultimately, of the will itself.
Cruz vs Villasor
54 SCRA 31
Facts: Petition to review on certiorari the judgment of the Court of
First Instance of Cebu allowing the probate of the last will and
testament of the late Valente Z. Cruz. Petitioner-appellant Agapita
N. Cruz, the surviving spouse of the said deceased, opposed the
allowance of the will (Exhibit “E”), alleging that the will was
executed through fraud, deceit, misrepresentation and undue
influence; that the said instrument was executed without the
testator having been fully informed of the contents thereof,
particularly as to what properties he was disposing; and that the
supposed last will and testament was not executed in accordance
with law.
Issue: Whether the supposed last will and testament of Valente Z.
Cruz (Exhibit “E”) was executed in accordance with law,
particularly Articles 805 and 806 of the new Civil Code, the first
requiring at least three credible witnesses to attest and subscribe
to the will, and the second requiring the testator and the witnesses
to acknowledge the will before a notary public.
Held: Of the three instrumental witnesses thereto, namely,
Deogracias T. Jamaoas, Jr., Dr. Francisco Pañares, and Atty. Angel
H. Teves, Jr., one of them, the last named, is at the same time the
Notary Public before whom the will was supposed to have been
acknowledged. Reduced to simpler terms, the question was
attested and subscribed by at least three credible witnesses in the
presence of the testator and of each other, considering that the
three attesting witnesses must appear before the notary public to
acknowledge the same. As the third witness is the notary public
himself, petitioner argues that the result is that only two witnesses
appeared before the notary public to acknowledge the will.
On the other hand, private respondent-appellee, Manuel B. Lugay,
who is the supposed executor of the will, following the reasoning
of the trial court, maintains that there is substantial compliance
with the legal requirement of having at least three attesting
witnesses even if the notary public acted as one of them.
After weighing the merits of the conflicting claims of the parties,
We are inclined to sustain that of the appellant that the last will
and testament in question was not executed in accordance with
law. The notary public before whom the will was acknowledged
cannot be considered as the third instrumental witness since he
cannot acknowledge before himself his having signed the will.
Consequently, if the third witness were the notary public himself,
he would have to avow, assent, or admit his having signed the will
in front of himself. This cannot be done because he cannot split his
personality into two so that one will appear before the other to
acknowledge his participation in the making of the will. To permit
such a situation to obtain would be sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among others, to
guard against any illegal or immoral arrangements. That function
would be defeated if the notary public were one of the attesting or
instrumental witnesses. For them he would be interested in
sustaining the validity of the will as it directly involves himself and
the validity of his own act. It would place him in an inconsistent
position and the very purpose of the acknowledgment, which is to
minimize fraud would be thwarted.
Admittedly, there are American precedents holding that a notary
public may, in addition, act as a witness to the execution of the
document he has notarized.
But these authorities do not serve the purpose of the law in this
jurisdiction or are not decisive of the issue herein, because the
notaries public and witnesses referred to in the aforecited cases
merely acted as instrumental, subscribing or attesting witnesses,
and not as acknowledging witnesses. Here the notary public acted
not only as attesting witness but also as acknowledging witness, a
situation not envisaged by Article 805 of the Civil Code which
reads:
“ART. 806. Every will must be acknowledged before a notary public
by the testator and the witnesses. The notary public shall not be
required to retain a copy of the will or file another with the office
of the Clerk of Court.”
To allow the notary public to act as third witness, or one of the
attesting and acknowledging witnesses, would have the effect of
having only two attesting witnesses to the will which would be in
contravention of the provisions of Article 805 requiring at least
three credible witnesses to act as such and of Article 806 which
requires that the testator and the required number of witnesses
must appear before the notary public to acknowledge the will. The
result would be, as has been said, that only two witnesses
appeared before the notary public for that purpose. In the
circumstances, the law would not be duly observed.
Lopez vs Lopez
G.R. No. 189984
12 November 2012
Facts: On June 21, 1999, Enrique S. Lopez (Enrique) died leaving
his wife, Wendy B. Lopez, and their four legitimate children,
namely, petitioner Richard B. Lopez (Richard) and the
respondents Diana Jeanne Lopez (Diana), Marybeth de Leon
(Marybeth) and Victoria L. Tuazon (Victoria) as compulsory heirs.
Before Enrique’s death, he executed a Last Will and Testament4 on
August 10, 1996 and constituted Richard as his executor and
administrator.
On September 27, 1999, Richard filed a petition for the probate of
his father’s Last Will and Testament before the RTC of Manila with
prayer for the issuance of letters testamentary in his favor.
Marybeth opposed the petition contending that the purported last
will and testament was not executed and attested as required by
law, and that it was procured by undue and improper pressure
and influence on the part of Richard. The said opposition was also
adopted by Victoria.
After submitting proofs of compliance with jurisdictional
requirements, Richard presented the attesting witnesses, namely:
Reynaldo Maneja; Romulo Monteiro; Ana Maria Lourdes Manalo
(Manalo); and the notary public who notarized the will, Atty.
Perfecto Nolasco (Atty. Nolasco). The instrumental witnesses
testified that after the late Enrique read and signed the will on
each and every page, they also read and signed the same in the
latter’s presence and of one another. Photographs of the incident
were taken and presented during trial. Manalo further testified
that she was the one who prepared the drafts and revisions from
Enrique before the final copy of the will was made.
Likewise, Atty. Nolasco claimed that Enrique had been his client
for more than 20 years. Prior to August 10, 1996, the latter
consulted him in the preparation of the subject will and furnished
him the list of his properties for distribution among his children.
He prepared the will in accordance with Enrique’s instruction and
that before the latter and the attesting witnesses signed it in the
presence of one another, he translated the will which was written
in English to Filipino and added that Enrique was in good health
and of sound mind at that time.
On the other hand, the oppositors presented its lone witness,
Gregorio B. Paraon (Paraon), Officer-in-Charge of the Notarial
Section, Office of the Clerk of Court, RTC, Manila. His testimony
centered mainly on their findings that Atty. Nolasco was not a
notary public for the City of Manila in 1996, which on cross
examination was clarified after Paraon discovered that Atty.
Nolasco was commissioned as such for the years 1994 to 1997.
Issue: Whether the will is valid
Held: The provisions of the Civil Code on Forms of Wills,
particularly, Articles 805 and 809 of the Civil Code provide:
ART. 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the
testator’s name written by some other person in his presence, and
by his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of one
another.
The testator or the person requested by him to write his name and
the instrumental witnesses of the will, shall also sign, as aforesaid,
each and every page thereof, except the last, on the left margin,
and all the pages shall be numbered correlatively in letters placed
on the upper part of each page.
The attestation shall state the number of pages used upon which
the will is written, and the fact that the testator signed the will and
every page thereof, or caused some other person to write his
name, under his express direction, in the presence of the
instrumental witnesses, and that the latter witnessed and signed
the will and all the pages thereof in the presence of the testator
and of one another. If the attestation clause is in a language not
known to the witnesses, it shall be interpreted to them.
ART. 809. In the absence of bad faith, forgery, or fraud, or undue
and improper pressure and influence, defects and imperfections in
the form of attestation or in the language used therein shall not
render the will invalid if it is proved that the will was in fact
executed and attested in substantial compliance with all the
requirements of Article 805.
The law is clear that the attestation must state the number of
pages used upon which the will is written. The purpose of the law
is to safeguard against possible interpolation or omission of one or
some of its pages and prevent any increase or decrease in the
pages.
While Article 809 allows substantial compliance for defects in the
form of the attestation clause, Richard likewise failed in this
respect. The statement in the Acknowledgment portion of the
subject last will and testament that it “consists of 7 pages including
the page on which the ratification and acknowledgment are
written” cannot be deemed substantial compliance. The will
actually consists of 8 pages including its acknowledgment which
discrepancy cannot be explained by mere examination of the will
itself but through the presentation of evidence aliunde.
On this score is the comment of Justice J.B.L. Reyes regarding the
application of Article 809, to wit:
x x x The rule must be limited to disregarding those defects that
can be supplied by an examination of the will itself: whether all the
pages are consecutively numbered; whether the signatures appear
in each and every page; whether the subscribing witnesses are
three or the will was notarized. All these are facts that the will
itself can reveal, and defects or even omissions concerning them in
the attestation clause can be safely disregarded. But the total
number of pages, and whether all persons required to sign did so in
the presence of each other must substantially appear in the
attestation clause, being the only check against perjury in the
probate proceedings.
Hence, the CA properly sustained the disallowance of the will.
Holographic Will
Labrador vs CA
184 SCRA 170
Facts: On June 10, 1972, Melecio Labrador died in the Municipality
of Iba, province of Zambales, where he was residing, leaving
behind a parcel of land under Original Certificate of Title and the
following heirs, namely: Sagrado, Enrica, Cristobal, Jesus,
Gaudencio, Josefina, Juliana, Hilaria and Jovita, all surnamed
Labrador, and a holographic will.
On July 28, 1975, Sagrado Labrador (now deceased but substituted
by his heirs), Enrica Labrador and Cristobal Labrador, filed in the
court a quo a petition for the probate of the alleged holographic
will of the late Melecio Labrador.
Subsequently, on September 30, 1975, Jesus Labrador (now
deceased but substituted by his heirs), and Gaudencio Labrador
filed an opposition to the petition on the ground that the will has
been extinguished or revoked by implication of law, alleging
therein that on September 30, 1971, that is, before Melecio’s death,
for the consideration of Six Thousand (P6,000) Pesos, testator
Melecio executed a Deed of Absolute Sale, selling, transferring and
conveying in favor of oppositors Jesus and Gaudencio and that as a
matter of fact, O.C.T. had been cancelled by T.C.T. Earlier however,
in 1973, Jesus Labrador sold said parcel of land to Navat for only
Five Thousand (P5,000) Pesos.
Sagrado thereupon filed, on November 28, 1975, against his
brothers, Gaudencio and Jesus, for the annulment of said
purported Deed of Absolute Sale over a parcel of land which
Sagrado allegedly had already acquired by devise from their
father Melecio Labrador under a holographic will executed on
March 17, 1968, the complaint for annulment being premised
on the fact that the aforesaid Deed of Absolute Sale is
fictitious.
After both parties had rested and submitted their respective
evidence, the trial court rendered a joint decision dated
February 28, 1985, allowing the probate of the holographic
will and declaring null and void the Deed of Absolute Sale.
Issue: Whether or not the alleged holographic will of one Melecio
Labrador is dated, as provided for in Article 8102 of the New Civil
Code
Held: Yes. The petition, which principally alleges that the
holographic will is really dated, although the date is not in its usual
place, is impressed with merit.
The will has been dated in the hand of the testator himself in
perfect compliance with Article 810. It is worthy of note to quote
the first paragraph of the second page of the holographic will, viz:
“And this is the day in which we agreed that we are making the
partitioning and assigning the respective assignment of the said
fishpond, and this being in the month of March, 17th day, in the
year 1968, and this decision and or instruction of mine is the
matter to be followed. And the one who made this writing is no
other than MELECIO LABRADOR, their father.”
The law does not specify a particular location where the date
should be placed in the will. The only requirements are that the
date be in the will itself and executed in the hand of the testator.
These requirements are present in the subject will.
Respondents claim that the date 17 March 1968 in the will was
when the testator and his beneficiaries entered into an agreement
among themselves about “the partitioning and assigning the
respective assignments of the said fishpond,” and was not the date
of execution of the holographic will; hence, the will is more of an
“agreement” between the testator and the beneficiaries thereof to
the prejudice of other compulsory heirs like the respondents. This
was thus a failure to comply with Article 783 which defines a will
as “an act whereby a person is permitted, with the formalities
prescribed by law, to control to a certain degree the disposition of
his estate, to take effect after his death.”
Respondents are in error. The intention to show 17 March 1968 as
the date of the execution of the will is plain from the tenor of the
succeeding words of the paragraph. As aptly put by petitioner, the
will was not an agreement but a unilateral act of Melecio Labrador
who plainly knew that what he was executing was a will. The act of
partitioning and the declaration that such partitioning as the
testator’s instruction or decision to be followed reveal that
Melecio Labrador was fully aware of the nature of the estate
property to be disposed of and of the character of the
testamentary act as a means to control the disposition of his
estate.
Ajero vs CA
236 SCRA 488
Facts: 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. 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.
RTC found that the will was valid however 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. 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.
Issue: Whether the holographic will of Anne Sand was not
executed in accordance with the formalities prescribed by law
Held: Section 9, Rule 76 of the Rules of Court provides that wills
shall be disallowed in any of the following cases:
(1) If not executed and attested as required by law;
(2) If the testator was insane, or otherwise mentally incapable to
make a will, at the time of its execution;
(3) If it was executed 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
for his benefit;
(5) 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:
“Article 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. 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.
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, 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.”
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, x x x 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 omision de la salvedad no anula el
testamento, segun la regla de jurisprudencia establecida en la
sentencia de 4 de Abril de 1895.’ ”
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:
“Article 678: A will is called holographic when the testator writes
it himself in the form and with the requisites required in Article
688.”
“Article 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. 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.
Kalaw vs Relova
132 SCRA 237
Facts: 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 for the probate of her
holographic Will executed on December 24, 1968.
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, 1973, 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. x x x
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.”
Issue: Whether the will, 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
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, x x x 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.”
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.
Perez vs Tolete
232 SCRA 722
Facts: Dr. Jose F. Cunanan and his wife, Dr. Evelyn PerezCunanan,
who became American citizens, established a successful medical
practice in New York, U.S.A. The Cunanans lived at with their
children, Jocelyn, 18; Jacqueline, 16; and Josephine, 14.
On August 23, 1979, Dr. Cunanan executed a last will and
testament, bequeathing to his wife “all the remainder” of his real
and personal property at the time of his death “wheresoever
situated”. In the event he would survive his wife, he bequeathed all
his property to his children and grandchildren with Dr. Rafael G.
Cunanan, Jr. as trustee. He appointed his wife as executrix of his
last will and testament and Dr. Rafael G. Cunanan, Jr. as substitute
executor. Article VIII of his will states:
“If my wife, EVELYN PEREZ­CUNANAN, and I shall die under such
circumstances that there is not sufficient evidence to determine
the order of our deaths, then it shall be presumed that I
predeceased her, and my estate shall be administered and
distributed, in all respects, in accordance with such presumption”
Four days later, on August 27, Dr. Evelyn P. Cunanan executed her
own last will and testament containing the same provisions as that
of the will of her husband. Article VIII of her will states:
“If my husband, JOSE F. CUNANAN, and I shall die under such
circumstances that there is not sufficient evidence to determine
the order of our deaths, then it shall be presumed that he
predeceased me, and my estate shall be administered and
distributed in all respects, in accordance with such presumption”
On January 9, 1982, Dr. Cunanan and his entire family perished
when they were trapped by fire that gutted their home. Thereafter,
Dr. Rafael G. Cunanan, Jr. as trustee and substitute executor of the
two wills, filed separate proceedings for the probate thereof with
the Surrogate Court of the County of Onondaga, New York. On
April 7, these two wills were admitted to probate and letters
testamentary were issued in his favor.
On February 21, 1983, Salud Teodoro Perez, the mother of Dr.
Evelyn P. Cunanan, and petitioner herein, filed with the Regional
Trial Court, Malolos, Bulacan a petition for the reprobate of the
two wills ancillary to the probate proceedings in New York. She
also asked that she be appointed the special administratrix of the
estate of the deceased couple consisting primarily of a farm land in
San Miguel, Bulacan.
On March 9, the Regional Trial Court issued an order, directing the
issuance of letters of special administration in favor of petitioner
upon her filing of a P10,000.00 bond. The following day, petitioner
posted the bond and took her oath as special administratrix.
As her first act of administration, petitioner filed a motion, praying
that the Philippine Life Insurance Company be directed to deliver
the proceeds in the amount of P50,000.00 of the life insurance
policy taken by Dr. Jose F. Cunanan with Dr. Evelyn Perez-Cunanan
and their daughter Jocelyn as beneficiaries.
Counsel for the Philippine American Life Insurance Company then
filed a manifestation, stating that said company had delivered to
petitioner the amount of P49,765.85, representing the proceeds of
the life insurance policy of Dr. Jose F. Cunanan.
In a motion dated May 19, 1983, petitioner asked that Dr. Rafael
Cunanan, Sr. be ordered to deliver to her a Philippine Trust
Company passbook with P25,594.00 in savings deposit, and the
Family Savings Bank time deposit certificates in the total amount
of P12,412.52.
On May 31, Atty. Federico Alday filed a notice of appearance as
counsel for the heirs of Dr. Jose F. Cunanan, namely, Dr. Rafael
Cunanan, Sr., Priscilla Cunanan
Bautista, Lydia Cunanan Ignacio, Felipe F. Cunanan and Loreto
Cunanan Concepcion (Cunanan heirs). He also manifested that
before receiving petitioner’s motion of May 19, 1983, his clients
were unaware of the filing of the testate estate case and therefore,
“in the interest of simple fair play,” they should be notified of the
proceedings.
Petitioner then filed a counter manifestation dated June 13, 1983,
asserting: (1) that the “Cunanan collaterals are neither heirs nor
creditors of the late Dr. Jose F. Cunanan” and therefore, they had
“no legal or proprietary interests to protect” and “no right to
intervene;” (2) that the wills of Dr. Jose F. Cunanan and Dr. Evelyn
Perez-Cunanan, being American citizens, were executed in
accordance with the solemnities and formalities of New York laws,
and produced “effects in this jurisdiction in accordance with Art.
16 in relation to Art. 816 of the Civil Code”; (3) that under Article
VIII of the two wills, it was presumed that the husband
predeceased the wife; and (4) that “the Cunanan collaterals are
neither distributees, legatees or beneficiaries, much less, heirs as
heirship is only by institution” under a will or by operation of the
law of New York.
On June 23, the probate court granted petitioner’s motion of May
19, 1983. However, on July 21, the Cunanan heirs filed a motion to
nullify the proceedings and to set aside the appointment of, or to
disqualify, petitioner as special administratrix of the estates of Dr.
Jose F. Cunanan and Dr. Evelyn Perez- Cunanan. The motion
stated: (1) that being the “brothers and sisters and the legal and
surviving heirs” of Dr. Jose F. Cunanan, they had been “deliberately
excluded” in the petition for the probate of the separate wills of
the Cunanan spouses thereby misleading the Bulacan court to
believe that petitioner was the sole heir of the spouses; that such
“misrepresentation” deprived them of their right to “due process
in violation of Section 4, Rule 76 of the Revised Rules of Court; (2)
that Dr. Rafael G. Cunanan, Jr., the executor of the estate of the
Cunanan spouses, was likewise not notified of the hearings in the
Bulacan court; (3) that the “misrepresentation and concealment
committed by” petitioner rendered her unfit to be a special
administratrix; (4) that Dr. Rafael G. Cunanan, Jr. had, by virtue of
a verified power of attorney, authorized his father, Dr. Rafael
Cunanan, Sr., to be his attorney­in­fact; and (5) that Dr. Rafael
Cunanan, Sr. is qualified to be a regular administrator “as
practically all of the subject estate in the Philippines belongs to
their brother, Dr. Jose F. Cunanan”. Hence, they prayed: (1) that
the proceedings in the case be declared null and void; (2) that the
appointment of petitioner as special administratrix be set aside;
and (3) that Dr. Rafael Cunanan, Sr. be appointed the regular
administrator of the estate of the deceased spouses.
On February 21, 1984, Judge de la Llana issued an order,
disallowing the reprobate of the two wills, recalling the
appointment of petitioner as special administratrix, requiring the
submission of petitioner of an inventory of the property received
by her as special administratrix and declaring all pending
incidents moot and academic. Judge de la Llana reasoned out that
petitioner failed to prove the law of New York on procedure and
allowance of wills and the court had no way of telling whether the
wills were executed in accordance with the law of New York. In the
absence of such evidence, the presumption is that the law of
succession of the foreign country is the same as the law of the
Philippines. However, he noted, that there were only two
witnesses to the wills of the Cunanan spouses and the Philippine
law requires three witnesses and that the wills were not signed on
each and every page, a requirement of the Philippine law.
Issue:
Held: The respective wills of the Cunanan spouses, who were
American citizens, will only be effective in this country upon
compliance with the following provision of the Civil Code of the
Philippines:
“Art. 816. The will of an alien who is abroad produces effect in the
Philippines if made with the formalities prescribed by the law of
the place in which he resides, or according to the formalities
observed in his country, or in conformity with those which this
Code prescribes.”
Thus, proof that both wills conform with the formalities
prescribed by New York laws or by Philippine laws is imperative.
The evidence necessary for the reprobate or allowance of wills
which have been probated outside of the Philippines are as
follows: (1) the due execution of the will in accordance with the
foreign laws; (2) the testator has his domicile in the foreign
country and not in the Philippines; (3) the will has been admitted
to probate in such country; (4) the fact that the foreign tribunal is
a probate court, and (5) the laws of a foreign country on procedure
and allowance of wills. Except for the first and last requirements,
the petitioner submitted all the needed evidence.
The necessity of presenting evidence on the foreign laws upon
which the probate in the foreign country is based is impelled by
the fact that our courts cannot take judicial notice of them.
Petitioner must have perceived this omission as in fact she moved
for more time to submit the pertinent procedural and substantive
New York laws but which request respondent Judge just glossed
over. While the probate pf a will is a special proceeding wherein
courts should relax the rules on evidence, the goal is to receive the
best evidence of which the matter is susceptible before a
purported will is probated or denied probate.
There is merit in petitioner’s insistence that the separate wills of
the Cunanan spouses should be probated jointly. Respondent
Judge’s view that the Rules on allowance of wills is couched in
singular terms and therefore should be interpreted to mean that
there should be separate probate proceedings for the wills of the
Cunanan spouses is too literal and simplistic an approach. Such
view overlooks the provisions of Section 2, Rule 1 of the Revised
Rules of Court, which advise that the rules shall be “liberally
construed in order to promote their object and to assist the parties
in obtaining just, speedy, and inexpensive determination of every
action and proceeding.”
A literal application of the Rules should be avoided if they would
only result in the delay in the administration of justice.
What the law expressly prohibits is the making of joint wills either
for the testators’ reciprocal benefit or for the benefit of a third
person (Civil Code of the Philippines, Article 818). In the case at
bench, the Cunanan spouses executed separate wills. Since the two
wills contain essentially the same provisions and pertain to
property which in all probability are conjugal in nature, practical
considerations dictate their joint probate. As this Court has held a
number of times, it will always strive to settle the entire
controversy in a single proceeding leaving no root or branch to
bear the seeds of future litigation.
This petition cannot be completely resolved without touching on a
very glaring fact—petitioner has always considered herself the
sole heir of Dr. Evelyn Perez Cunanan and because she does not
consider herself an heir of Dr. Jose F. Cunanan, she noticeably
failed to notify his heirs of the filing of the proceedings. Thus, even
in the instant petition, she only impleaded respondent Judge,
forgetting that a judge whose order is being assailed is merely a
nominal or formal party.
The rule that the court having jurisdiction over the reprobate of a
will shall “cause notice thereof to be given as in case of an original
will presented for allowance” (Revised Rules of Court, Rule 27,
Section 2) means that with regard to notices, the will probated
abroad should be treated as if it were an “original will” or a will
that is presented for probate for the first time. Accordingly,
compliance with Sections 3 and 4 of Rule 76, which require
publication and notice by mail or personally to the “known heirs,
legatees, and devisees of the testator resident in the Philippines”
and to the executor, if he is not the petitioner, are required.
The brothers and sisters of Dr. Jose F. Cunanan, contrary to
petitioner’s claim, are entitled to notices of the time and place for
proving the wills. Under Section 4 of Rule 76 of the Revised Rules
of Court, the “court shall also cause copies of the notice of the time
and place fixed for proving the will to be addressed to the
designated or other known heirs, legatees, and devisees of the
testator, xxx”.
Revocation
Testate Estate of Maloto
158 SCRA 451
Facts: On October 20, 1963, Adriana Maloto died leaving as heirs
her niece and nephews, the petitioners Aldina Maloto-Casiano and
Constancio Maloto, and the private respondents Panfilo Maloto
and Felino Maloto. Believing that the deceased did not leave
behind a last will and testament, these four heirs commenced on
November 4, 1963 an intestate proceeding for the settlement of
their aunt's estate. The case was instituted in the then Court of
First Instance of Iloilo and was docketed as Special Proceeding.
However, while the case was still in progress, or to be exact on
February 1, 1964, the parties— Aldina, Constancio, Panfilo, and
Felino—executed an agreement of extrajudicial settlement of
Adriana's estate. The agreement provided for the division of the
estate into four equal parts among the parties. The Malotos then
presented the extrajudicial settlement agreement to the trial court
for approval which the court did on March 21, 1964. That should
have signalled the end of the controversy, but, unfortunately, it
had not.
Three years later, or sometime in March 1967, Atty. Sulpicio
Palma, a former associate of Adriana's counsel, the late Atty. Eliseo
Hervas, discovered a document entitled "KATAPUSAN NGA
PAGBULUT-AN (Testamento)," dated January 3, 1940, and
purporting to be the last will and testament of Adriana. Atty.
Palma claimed to have found the testament, the original copy,
while he was going through some materials inside the cabinet
drawer formerly used by Atty. Hervas. The document was
submitted to the office of the clerk of the Court of First Instance of
Iloilo on April 1, 1967. Incidentally, while Panfilo and Felino are
still named as heirs in the said will, Aldina and Constancio are
bequeathed much bigger and more valuable shares in the estate of
Adriana than what they received by virtue of the agreement of
extrajudicial settlement they had earlier signed. The will likewise
gives devises and legacies to other parties, among them being the
petitioners Asilo de Molo, the Roman Catholic Church of Molo, and
Purificacion Miraflor.
Thus, on May 24, 1967, Aldina and Constancio, joined by the other
devisees and legatees named in the will, filed in Special Proceeding
a motion for reconsideration and annulment of the proceedings
therein and for the allowance of the will.
Significantly, the appellate court while finding as inconclusive the
matter on whether or not the document or papers allegedly
burned by the househelp of Adriana, Guadalupe Maloto Vda, de
Coral, upon instructions of the testatrix, was indeed the will,
contradicted itself and found that the will had been revoked. The
respondent court stated that the presence of animus revocandi in
the destruction of the will had, nevertheless, been sufficiently
proven. The appellate court based its finding on the facts that the
document was not in the two safes in Adriana's residence, by the
testatrix going to the residence of Atty. Hervas to retrieve a copy of
the will left in the latter's possession, and, her seeking the services
of Atty. Palma in order to have a new will drawn up. For reasons
shortly to be explained, we do not view such facts, even
considered collecti vely, as sufficient bases for the conclusion that
Adriana Maloto's will had been effectively revoked.
Issue: Whether or not the will was revoked by Adriana.
Held: The provisions of the new Civil Code pertinent to the issue
can be found in Article 830.
Art. 830. No will shall be revoked except in the following cases:
(1) By implication of law;
(2) or By some will, codicil, or other writing executed as provided
in case of wills;
(3) or By burning, tearing, cancelling, or obliterating the will with
the intention of revoking it, by the testator himself, or by some
other person in his presence, and by his express direction. If
burned, torn, cancelled, or obliterated by some other person,
without the express direction of the testator, the will may still be
established, and the estate distributed in accordance therewith, if
its contents, and due execution, and the fact of its unauthorized
destruction, cancellation, or obliteration are established according
to the Rules of Court.
It is clear that the physical act of destruction of a will, like burning
in this case, does not per se constitute an effective revocation,
unless the destruction is coupled with animus revocandi on the
part of the testator. It is not imperative that the physical
destruction be done by the testator himself. It may be performed
by another person but under the express direction and in the
presence of the testator. Of course, it goes without saying that the
document destroyed must be the will itself.
In this case, while animus revocandi, or the intention to revoke,
may be conceded, for that is a state of mind, yet that requisite
alone would not suffice, "Animus revocandi is only one of the
necessary elements for the effective revocation of a last will and
testament. The intention to revoke must be accompanied by the
overt physical act of burning, tearing, obliterating, or cancelling
the will carried out by the testator or by another person in his
presence and under his express direction. There is paucity of
evidence to show compliance with these requirements. For one,
the document or papers burned by Adriana's maid, Guadalupe,
was not satisfactorily established to be a will at all, much less the
will of Adriana Maloto. For another, the burning was not proven to
have been done under the express direction of Adriana. And then,
the burning was not in her presence. Both witnesses, Guadalupe
and Eladio, were one in stating that they were the only ones
present at the place where the stove (presumably in the kitchen)
was located in which the papers proffered as a will were burned.
The respondent appellate court in assessing the evidence
presented by the private respondents as oppositors in the trial
court, concluded that the testimony of the two witnesses who
testified in favor of the will's revocation appear "inconclusive." We
share the same view. Nowhere in the records before us does it
appear that the two witnesses, Guadalupe Vda. de Corral and
Eladio Itchon, both illiterates, were unequivocably positive that
the document burned was indeed Adriana's will. Guadalupe, we
think, believed that the papers she destroyed was the will only
because, according to her, Adriana told her so. Eladio, on the other
hand, obtained his information that the burned document was the
will because Guadalupe told him so, thus, his testimony on this
point is double hearsay.
At this juncture, we reiterate that "(it) is an important matter of
public interest that a purported will is not denied legalization on
dubious grounds. Otherwise, the very institution of testamentary
succession will be shaken to its very foundations x x x."
One last note. The private respondents point out that revocation
could be inferred from the fact that "(a) major and substantial bulk
of the properties mentioned in the will had been disposed of:
while an insignificant portion of the properties remained at the
time of death (of the testatrix); and, furthermore, more valuable
properties have been acquired after the execution of the will on
January 3, 1940."7 Suffice it to state here that as these additional
matters raised by the private respondents are extraneous to this
special proceeding, they could only be appropriately taken up after
the will has been duly probated and a certificate of its allowance
issued.
Molo vs Molo
90 Phil 37
Facts: Mariano Molo y Legaspi died on January 24, 1941, in the
municipality of Pasay, province of Rizal, without leaving any
forced heir either in the descending or ascending line. He was
survived, however, by his wife, the herein petitioner Juana Juan
Vda. de Molo, and by his nieces and nephew, the
oppositors-appellants, Luz, Gliceria and Cornelio, all surnamed
Molo, who were the legitimate children of Candido Molo y Legaspi,
deceased brother of the testator. Mariano Molo y Legaspi left two
wills, one executed on August 17, 1918, and another executed on
June 20, 1939. The latter will contains a clause which expressly
revokes the will executed in 1918.
On February 7, 1941, Juana Juan Vda. de Molo filed in the Court of
First Instance of Rizal a petition, which was docketed as special
proceeding, seeking the probate of the will executed by the
deceased on June 20, 1939.
There being no opposition, the will was probated. However, upon
petition filed by the herein oppositors, the order of the court
admitting the will to probate was set aside and the case was
reopened. After hearing, at which both parties presented their
evidence, the court rendered decision denying the probate of said
will on the ground that the petitioner failed to prove that the same
was executed in accordance with law.
In view of the disallowance of the will executed on June 20, 1939,
the widow on February 24, 1944, filed another petition f or the
probate of the will executed by the deceased on August 17, 1918,
which was docketed as special proceeding No. 56, in the same
court. Again, the same oppositors filed an opposition to the
petition based on three grounds: (1) that petitioner is now
estopped from seeking the probate of the will of 1918; (2) that
said will has not been executed in the manner required by law and
(3) that the will has been subsequently revoked. But before the
second petition could be heard, the battle for liberation came and
the records of the case were destroyed. Consequently, a petition
for reconstitution was filed, but the same was found to be
impossible because neither petitioner nor oppositors could
produce the copies required for its reconstitution.
Issue:
Held: The next contention of appellants refers to the revocatory
clause contained in the 1939 will of the deceased which was
denied probate. They contend that, notwithstanding the
disallowance of said will, the revocatory clause is valid and still
has the effect of nullifying the prior will of 1918. Counsel for
petitioner meets this argument by invoking the doctrine laid down
in the case of Samson vs. Naval, (41 Phil., 838). He contends that
the facts involved in that case are on all fours with the facts of this
case. Hence, the doctrine in that case is here controlling.
There is merit in this contention. We have carefully read the facts
involved in the Samson case and we are indeed impressed by their
striking similarity with the facts of this case. We do not need to
recite here what those facts are; it is enough to point out that they
contain many points and circumstances in common. No reason,
therefore, is seen why the doctrine laid down in that case (which
we quote hereunder) should not apply and control the present
case.
"A subsequent will, containing a clause revoking a previous will,
having been disallowed, for the reason that it was not executed in
conformity with the provisions of section 618 of the Code of Civil
Procedure as to the making of wills, cannot produce the effect of
annulling the previous will, inasmuch as said revocatory clause is
void."
But the impression we gathered from a review and study of the
pertinent authorities is that the doctrine laid down in the Samson
case is still a good law. On page 328 of the American
Jurisprudence, Vol. 57, which is a revision published in 1948, we
found the following passages which in our opinion truly reflect the
present trend of American jurisprudence on this matter affecting
the revocation of prior wills:
"SEC. 471. Observance of Formalities in Execution of Instrument.
—Ordinarily, statutes which permit the revocation of a will by
another writing provide that to be effective as a revocation, the
writing must be executed with the same formalities which are
required to be observed in the execution of a will. Accordingly,
where, under the statutes, attestation is necessary to the making of
a valid will, an unattested nontestamentary writing is not effective
to revoke a prior will. It has been held that a writing fails as a
revoking instrument where it is not executed with the formalities
requisite for the execution of a will, even though it is inscribed on
the will itself, although it may effect a revocation by cancellation or
obliteration of the words of the will. A testator cannot reserve to
himself the power to modify a will by a written instrument
subsequently prepared but not executed in the manner required
for a will.
"SEC. 472. Subsequent Unexecuted, Invalid, or Ineffective Will or
Codicil.—A will which is invalid because of the incapacity of the
testator or of undue influence can have no effect whatever as a
revoking will. Moreover, a will is not revoked by the unexecuted
draft of a later one. Nor is a will revoked by a defectively executed
will or codicil, even though the latter contains a clause expressly
revoking the former will, in a jurisdiction where it is provided by a
controlling statute that no writing other than a testamentary
instrument is sufficient to revoke a will, for the simple reason that
there is no revoking will. Similarly where the statute provides that
a will may be revoked by a subsequent will or other writing
executed with the same formalities as are required in the
execution of wills, a defectively executed will does not revoke a
prior will, since it cannot be said that there is a writing which
complies with the statute. Moreover, a will or codicil which, on
account of the manner in which it is executed, is sufficient to pass
only personally does not affect dispositions of real estate made by
a former will, even though it may expressly purport to do so. The
intent of the testator to revoke is immaterial, if he has not
complied with the statute."
We find the same opinion in the American Law Reports,
Annotated, edited in 1939. On page 1400, Volume 123, there
appear many authorities on the "application of rules where second
will is invalid", among which a typical one is the following: "It is
universally agreed that where the second will is invalid on account
of not being executed in accordance with the provisions of the
statute, or where the testator has not sufficient mental capacity to
make a will or the will is procured through undue influence, or the
such, in other words, where the second will is really no will, it does
not revoke the first will or affect it in any manner."
These treaties cannot be mistaken. They uphold the view on which
the ruling in the Samson case is predicated. They reflect the
opinion that this ruling is sound and good and for this reason we
see no justification for abandoning it as now suggested by counsel
for the oppositors.
It is true that our law on the matter (sec. 623, Code of Civil
Procedure) provides that a will may be revoked "by some will,
codicil, or other writing executed as provided in case of wills"; but
it cannot be said that the 1939 will should be regarded, not as a
will within the meaning of said word, but as "other writing
executed as provided in the case of wills", simply because it was
denied probate. And even if it be regarded as any other writing
within the meaning of said clause, there is authority for holding
that unless said writing is admitted to probate, it cannot have the
effect of revocation.
But counsel for oppositors contend that, regardless of said
revocatory clause, said will of 1918 cannot still be given effect
because of the presumption that it was deliberately revoked by the
testator himself. The oppositors contend that the testator, after
executing the 1939 will, and with full knowledge of the revocatory
clause contained in said will, himself deliberately destroyed the
original of the 1918 will, and that for this reason the will
submitted by petitioner for probate in these proceedings is only a
duplicate of said original.
There is no evidence which may directly indicate that the testator
deliberately destroyed the original of the 1918 will because of his
knowledge of the revocatory clause contained in the will he
executed in 1939. The only evidence we have is that when the first
will was executed in 1918, Juan Salcedo, who prepared it, gave the
original and copies to the testator himself and apparently they
remained in his possession until he executed his second will in
1939. And when the 1939 will was denied probate on November
29, 1943, and petitioner was asked by her attorney to look for
another will, she found the duplicate copy among the papers or
files of the testator. She did not find the original.
If it can be inferred that the testator deliberately destroyed the
1918 will because of his knowledge of the revocatory clause of the
1939 will, and it is true that he gave a duplicate copy thereof to his
wife, the herein petitioner, the most logical step for the testator to
take is to recall said duplicate copy in order that it may likewise be
destroyed. But this was not done as shown by the fact that said
duplicate copy remained in the possession of petitioner. It is
possible that because of the long lapse of twenty-one (21) years
since the first will was executed, the original of the will had been
misplaced or lost, and forgetting that there was a copy, the testator
deemed it wise to execute another will containing exactly the same
testamentary dispositions. Whatever may be the conclusion we
may draw from this chain of circumstances, the stubborn fact is
that there is no direct evidence of voluntary or deliberate
destruction of the first will by the testator. This matter cannot be
left to mere inference or conjecture.
Granting for the sake of argument that the earlier will was
voluntarily destroyed by the testator after the execution of the
second will, which revoked the first, could there be any doubt,
under this theory, that said earlier will was destroyed by the
testator in the honest belief that it was no longer necessary
because he had expressly revoked it in his will of 1939? In other
words, can we not say that the destruction of the earlier will was
but the necessary consequence of the testator's belief that the
revocatory clause contained in the subsequent will was valid and
the latter would be given effect? If such is the case, then it is our
opinion that the earlier will can still be admitted to probate under
the principle of "dependent relative revocation".
"This doctrine is known as that of dependent relative revocation,
and is usually applied where the testator cancels or destroys a will
or executes an instrument intended to revoke a will with a present
intention to make a new testamentary disposition as a substitute
for the old, and the new disposition is not made or, if made, fails of
effect for some reason. The doctrine is not limited to the existence
of some other document, however, and has been applied where a
will was destroyed as a consequence of a mistake of law * * *."
"The rule is established that where the act of destruction is
connected with the making of another will so as fairly to raise the
inference that the testator meant the revocation of the old to
depend upon the efficacy of the new disposition intended to be
substituted, the revocation will be conditional and dependent
upon the efficacy of the new disposition; and if, for any reason, the
new will intended to be made as a substitute is inoperative, the
revocation fails and the original will remains in full force."
"This is the doctrine of dependent relative revocation. The failure
of the new testamentary disposition, upon whose validity the
revocation depends, is equivalent to the non-fulfillment of a
suspensive condition, and hence prevents the revocation of the
original will. But a mere intent to make at some time a will in place
of that destroyed will not render the destruction conditional. It
must appear that the revocation is dependent upon the valid
execution of a new will.
We hold, therefore, that even in the supposition that the
destruction of the original will by the testator could be presumed
from the failure of the petitioner to produce it in court, such
destruction cannot have the effect of defeating the prior will of
1918 because of the fact that it is founded on the mistaken belief
that the will of 1939 has been validly executed and would be given
due effect. The theory on which this principle is predicated is that
the testator did not intend to die intestate. And this intention is
clearly manifest when he executed two wills on. two different
occasions and instituted his wife as his universal heir. There can
therefore be no mistake as to his intention of dying testate.

Probate
Tolentino vs Francisco
57 Phil 749
Facts: This petition was filed in the Court of First Instance of
Manila by Adelaida Tolentino de Concepcion, for the purpose of
procuring probate of the will of Gregorio Tolentino, deceased, who
died at the 'hand of an assassin, in his home. In the inception of the
proceedings Eugene de Mitkiewiez was appointed special co-
administrator, and he joined as co-plaintiff in the petition.
Opposition was made to the probate of the will by Ciriaco
Francisco, Natalia Francisco, and Gervasia Francisco, all cousins of
the deceased and residents of the City of Manila.
At the time of his death on November 9, 1930, Gregorio Tolentino
was 66 years of age. During the more vigorous years of his life he
had been married to Benita Francisco, but she predeceased him
years ago. By their industry and frugality the two had accumulated
a very considerable estate which does not appear to have suffered
any material diminution in the years of Tolentino's widowhood.
The pair had no children, and the generous instincts of the
survivor prompted him to gather around him in his comfortable
and commodious home a number of his wife's kin; and by him
various younger members of the connection were supported and
educated. At one time Tolentino contemplated leaving his
property mainly to these kin of his wife, of the surname Francisco;
and for several years prior to his death, he had kept a will
indicating this desire. However, in October, 1930, strained
relations, resulting from grave disagreements, developed between
Tolentino and the Francisco relations and he determined to make
a new will in which, apart from certain legacies in favor of a few
individuals, the bulk of his estate, worth probably about P150,000,
should be given to Adelaida Tolentino de Conception, as his
universal heir.
To this end, on October 17, 1930, Tolentino went to the office of
Eduardo Gutierrez Repide, an attorney, and informed him that he
wanted to make a new will and desired Repide to draft it for him.
After the necessary preliminary inquiries had been made, the
attorney suggested to Tolentino to return later, bringing a copy of
the will previously made. Accordingly, on the second day
thereafter, Tolentino again appeared in Repide's office with the
prior will; and the attorney proceeded to reduce the new will to
proper form. As the instrument was taking shape Tolentino stated
that he wanted the will to be signed in Repide's office, with Repide
himself as one of the attesting witnesses. For the other two
witnesses Tolentino requested that two attorneys attached to the
office, namely, Leoncio B. Monzon and Ramon L. Sunico, should
serve.
When the instrument had been reduced to proper form it was
placed in the hands of Tolentino, the testator, in order that he
might take it home to reflect over its provisions and consider
whether it conformed in all respects to his wishes. On the morning
of October 21 he again appeared in Repide's office and returned to
him the draft of the will with certain corrections. Among the
changes thus made was the suppression of the names of Monzon,
Sunico, and Repide as attesting witnesses, these names being
substituted by the names of Jose Syyap, Agustin Vergel de Dios,
and Vicente Legarda. The explanation given by the testator for
desiring this change was that he had met Jose Syyap on the
Escolta, the day before, and had committed the indiscretion of
communicating the fact that he (Tolentino) was having a new will
made in which Monzon, Sunico, and Repide would appear as the
attesting witnesses. Now Syyap had been the draftsman of the
former will of Tolentino, and in this same will the name of Syyap
appeared as one of the attesting witnesses, the other two being
Vicente Legarda and Vergel de Dios. When, therefore, Syyap
learned that a new will was being drawn up without his
intervention, he showed profound disappointment, saying to
Tolentino that he considered it a gross offense that he, Legarda,
and Vergel de Dios should be eliminated as witnesses to the new
will. Upon this manifestation of feeling by Syyap, Tolentino
decided to avail himself of Syyap, Legarda, and Vergel de Dios as
witnesses to this will also, and he therefore requested Repide to
change the names of the attesting witnesses. After this point had
been settled Tolentino stated that he would request Syyap,
Legarda, and Vergel de Dios to appear at the office of Repide for
the purpose of signing the will. To this end Tolentino went away
but returned later saying that he had spoken to Syyap about it and
that the latter strenuously objected, observing that the will should
be signed at a chopsuey restaurant (panciteria). Tolentino further
stated to his attorney in this conversation that he had arranged
with Syyap and the other two intending witnesses to meet at five
o'clock in the afternoon of the next day, which was October 22, for
the purpose of executing the will.
Pursuant to these instructions Repide made the desired changes in
the will; and just before twelve o'clock noon of the next day
Tolentino returned to Repide's office and received from him the
original document, with a carbon copy thereof. Repide advised the
testator that the carbon copy should be executed with the same
formality as the original in order that the intention of the testator
should not be frustrated by the possible loss or destruction of the
original.
It is a custom in the office of Repide not to number the consecutive
pages of a will, on the typewriting machine, the duty of numbering
the pages being left to the testator himself. This precaution
appears to have been born of experience, and has been adopted by
Repide to prevent the possible destruction of a will by the mere
erasure of the figures or letters indicating the pagination,—a
disaster which, in Repide's experience, had occurred in at least one
case. Accordingly, upon delivering the completed will and carbon
copy to the testator, Repide took particular pains to instruct the
testator to write the consecutive paging of both original and
duplicate before signing the instrument.
At this interview the testator suggested to Repide that the latter
should also go to the place where the will was to be executed, so
that he might be present at the formality. The attorney replied that
it was impossible for him to do so as he had another engagement
for the hour indicated, which would prevent his attendance.
At about 4.30 p. m. on the same day, which was October 22,
Tolentino started in his car to pick up Syyap and Vergel de Dios at
their respective homes on Antipolo and Benavides streets. He then
caused his chauffeur to drive with the three to La Previsora
Filipina, where Vicente Legarda, the third intending witness was to
be found. Arriving at this place, the three entered the office of
Legarda, who was manager of the establishment, and they were
invited to take seats, which they did. Tolentino then suggested that
the three should go as his guests to a panciteria, where they could
take refreshments and the will could be executed. Legarda replied
that he must decline the invitation for he had an engagement to go
to the Cosmos Club the same afternoon. Upon this Tolentino asked
Legarda to permit the will to be signed in his office, and to this
request Legarda acceded.
Tolentino thereupon drew two documents from his pocket saying
that it was his last will and testament, done in duplicate, and he
proceeded to read the original to the witnesses. After this had
been completed, Legarda himself took the will in hand and read it
himself. He then returned it to Tolentino, who thereupon
proceeded, with pen and ink, to number the pages of the will thus,
"Pagina Primera", "Pagina Segunda", etc. He then paged the
duplicate copy of the will in the same way. He next proceeded to
sign the original will and each of its pages by writing his name "G.
Tolentino" in the proper places. Following this, each of the three
witnesses signed their own respective names at the end of the will,
at the end of the attesting clause, and in the left margin of each
page of the instrument. During this ceremony all of the persons
concerned in the act of attestation were present together, and all
fully advertent to the solemnity that engaged their attention.
After the original of the will had been executed in the manner just
stated, the testator expressed his desire that the duplicate should
be executed in the same manner. To this Syyap objected, on the
ground that it was unnecessary; and in this view he was supported
by Vergel de Dios, with the result that the wishes of the testator on
this point could not be carried out. As the party was about to break
up Tolentino used these words: "For God's sake, as a favor, I
request you not to let anyone know thecontents of this will." The
meeting then broke up and Tolentino returned Syyap and Vergel
de Dios to their homes in his car. He then proceeded to the law
office of Repide, arriving about 6.15 p. m. After preliminary
explanations had been made, Tolentino requested Repide to keep
the will overnight in his safe, as it was already too late to place it in
the compartment which Tolentino was then renting in the Oriental
Safe Deposit, in the Kneedler Building. In this connection the
testator stated that he did not wish to take the will to his home, as
he knew that his relatives were watching him and would take
advantage of any carelessness on his part to pry into his papers.
Also, in this conversation Tolentino informed Repide of the refusal
of Syvap to execute the duplicate of the will.
After a good part of an hour had thus been spent at Repide's office
by the testator and after the original of the will had been deposited
in Repide's safe, Tolentino took the attorney to the latter's
residence in Ermita, and then returned to his own home, where he
remained without again going out that night. But promptly at nine
o'clock the next morning Tolentino presented himself at Repide's
office for the purpose of securing the will. Repide happened to be
out and Tolentino went away, but again returned the next day and
received the will. With the instrument thus in his possession he
proceeded at once to the. Oriental Safe Deposit and there left the
instrument in his private compartment, No. 333, in which place it
remained until withdrawn some two weeks later by order of the
court.
On the morning of November 9, 1930, Gregorio Tolentino was
found dead in his bed, having perished by the hands of an assassin.
Issue: Can the will be admitted to probate?
Held: The peculiarity of this case is that, upon the trial of this
proceeding for the probate of the will of the decedent, two of the
attesting witnesses, Jose Syyap and Vergel de Dios, repudiated
their participation in the execution of the will at the time and place
stated; and while admitting the genuineness of their signatures to
the will, pretended that they had severally signed the instrument,
at the request of the testator, at different places. Thus, Syyap,
testifying as a witness, claimed that the testator brought the will to
Syyap's house on the afternoon of October 21—a time, be it
remembered, when the will had not yet left the hands of the
draftsman—and upon learning that Syyap could not be present at
the time and place then being arranged for the execution of the
will, he requested Syyap, as a mere matter of complaisance, to sign
the will then, which Syyap did. Vergel de Dios has another story to
tell of isolated action, claiming that he signed the will in the
evening of October 22 at the Hospital of San Juan de Dios in
Intramuros.
We are unable to give any credence to the testimony of these two
witnesses on this point, the same being an evident fabrication
designed for the purpose of defeating the will. In the first place, the
affirmative proof showing that the will was properly executed is
adequate, consistent, and convincing, consisting of the testimony
of the third attesting witness, Vicente Legarda, corroborated by
Miguel Legarda and Urbana Rivera, two disinterested individuals,
employees of La Previsora Filipina, who were present in Legarda's
office when the will was executed and who lent a discerning
attention to what was being done. In the second place, each of the
seven signatures affixed to this will by Syyap appear to the natural
eye to 'have been made by using the same pen and ink that was
used by Legarda in signing the will. The same is also probably true
of the seven signatures made by Vergel de Dios. This could hardly
have happened if the signatures of Syyap and Vergel de Dios had
been affixed, as they now pretend, at different times and places. In
the third place, both Syyap and Vergel de Dios are impeached by
proof of contradictory statements made by them on different
occasions prior to their appearance as witnesses in this case. In
this connection we note that, after the murder of Gregorio
Tolentino, and while the police authorities were investigating his
death, Nemesio Alferez, a detective, sent for Syyap and questioned
him concerning his relations with the deceased. Upon this
occasion Syyap stated that Gregorio Tolentino had lately made a
will, that it had been executed at the office of La Previsora Filipina
under the circumstances already related, and that he himself had
served as one of the attesting witnesses.
These circumstances and other incidents revealed in the proof
leave no room for doubt in our mind that Syyap and Vergel de Dios
have entered into a conspiracy between themselves, and in
concert with the opponents, to defeat the will of Gregorio
Tolentino although they are well aware that said will was in all
respects properly executed; and the trial court, in our opinion,
committed no errror in admitting the will to probate.
When a will is contested it is the duty of the proponent to call all of
the attesting witnesses, if available, but the validity of the will in
no wise depends upon the united support of the will by all of those
witnesses. A will may be admitted to probate notwithstanding the
fact that one or more of the subscribing witnesses do not unite
with the other, or others, in proving all the facts upon which the
validity of the will rests. It is sufficient if the court is satisfied from
all the proof that the will was executed and attested in the manner
required by law. In this case we feel well assured that the
contested will was properly executed and the order admitting it to
probate was entirely proper.
Mercado vs Santos
66 Phil 215
Facts: Petitioner herein filed in the CFI of Pampanga a petition for
the probate of the will of his deceased wife, Ines Basa without any
opposition, and upon the testimony of Benigno F. Gabino, one of
the attesting witnesses, the probate court, on June 27, 1931,
admitted the will to probate. Almost three years later, on April 11,
1934 the five intervenors herein moved ex parte to reopen the
proceedings, alleging lack of jurisdiction of the court to probate
the will and to close the proceedings.
It appears that on October 27, 1932, i. e., sixteen months after the
probate of the will of Ines Basa, intervenor Rosario Basa de Leon
filed with the justice of the peace court of San fernando, Pampanga,
a complaint against the petitioner herein, or falsification or forgery
of the will probated us above indicated. The petitioner was
arrested. He put up a bond in the sum of P4,000 and engaged the
services of an attorney to undertake his defense. Preliminary
investigation of the case was continued twice upon petition of the
complainant. The complaint was finally dismissed, at the instance
of the complainant herself. Three months later, or on March 2,
1933, the same intervenor charged the petitioner for the second
time with the same offense, presenting the complaint this time in
the justice of the peace court of Mexico, Pampanga. The petitioner
was again arrested, again put up a bond in the sum of P4,000, and
engaged the services of counsel to defend him. This second
complaint, after investigation, was also dismissed, again at the
instance of the complainant herself who alleged that the petitioner
was in poor health. Some nine months later, on February 2, 1934,
to be exact, the same intervenor accused the same petitioner for
the third time of the same offense. The information was filed by
the provincial fiscal of Pampanga in the justice of the peace court
of Mexico. The petitioner was again arrested, again put up a bond
of P4,000, and engaged the services of defense counsel. The case
was dismissed on April 24, 1934, after due investigation, on the
ground that the will alleged to have been falsified had already
been probated and there was no evidence that the petitioner had
forged the signature of the testatrix appearing thereon, but that on
the contrary, the evidence satisfactorily established the
authenticity of the signature aforesaid.
Issue: Whether the probate of the will of his deceased wife is a bar
to his criminal prosecution for the alleged forgery of the said will
Held: Section 306 of our Code of Civil Procedure provides as to the
effect of judgments:
"SEC. 306. Effect of judgment.—The effect of a judgment or final
order in an action or special proceeding before a court or judge of
the Philippine Islands or of the United States, or of any State or
Territory of the United States, having jurisdiction to pronounce the
judgment or order, may be as follows:
"1. In case of a judgment or order against a specific thing, or in
respect to the probate of a will, or the administration of the estate
of a deceased person, or in respect to the personal, political, or
legal condition or relation of a particular person, the judgment or
order is conclusive upon the title of the thing, the will or
administration, or the condition or relation of the person:
Provided, That the probate of a will or granting of letters of
administration shall only be prima facie evidence of the death of
the testator or intestate.
Section 625 of the same Code is more explicit as to the
conclusiveness of the due execution of a probated will. It says:
"SEC. 625. Allowance Necessary, and Conclusive as to Execution.
—No will shall pass either the real or personal estate, unless it is
proved and allowed in the Court of First instance, or by appeal to
the Supreme Court; and the allowance of the court of a will of real
and personal estate shall be conclusive as to its due execution."
In Manahan vs. Manahan (58 Phil., 448, 451), we held:
"The decree of probate is conclusive with respect to the due
execution thereof and it cannot be impugned on any of the
grounds authorized by law, except that of fraud, in any separate or
independent action or proceeding.
In 28 R. C. L., p. 377, section 378, it is said:
"The probate of a will by the probate court having jurisdiction
thereof is usually considered as conclusive as to its due execution
and validity, and is also conclusive that the testator was of sound
and disposing mind at the time when he executed the will, and was
not acting under duress, menace, fraud, or undue influence, and
that the will is genuine and not a forgery."
As our law on wills, particularly section 625 of our Code of Civil
Procedure aforequoted, was taken almost bodily from the Statutes
of Vermont, the decisions of the Supreme Court of that State
relative to the effect of the probate of a will are persuasive
authority in this jurisdiction.
The Vermont statute as to the conclusiveness of the due execution
of a probated will reads as follows:
"SEC. 2356. No will shall pass either real or personal estate unless
it is proved and allowed in the probate court, or by appeal in the
county or supreme court; and the probate of a will of real or
personal estate shall be conclusive as to its due execution."
The probate of a will in this jurisdiction is a proceeding in rem. The
provision of notice by publication as a prerequisite to the
allowance of a will is constructive notice to the whole world, and
when probate is granted, the judgment of the court is binding
upon everybody, even against the State.
Section 333, paragraph 4, of the Code of Civil Procedure
establishes an incontrovertible presumption in favor of judgments
declared by it to be conclusive:
"SEC. 333. Conclusive Presumptions.—The following presumptions
or deductions, which the law expressly directs to be made from
particular facts, are deemed conclusive: '*
"4. The judgment or order of a court, when declared by this code to
be conclusive."
Conclusive presumptions are inferences which the law makes so
peremptory that it will not allow them to be overturned by any
contrary proof however strong. The will in question having been
probated by a competent court, the law will not admit any proof to
overthrow the legal presumption that it is genuine and not a
forgery.

Although in the foregoing case the information filed by the State
was to set aside the decree of probate on the ground that the will
was forged, we see no difference in principle between that case
and the case at bar. 'A subtle distinction could perhaps be drawn
between setting aside a decree of probate, and declaring a
probated will to be a forgery. It is clear, however, that a duly
probated will cannot be declared to be a forgery without
disturbing in a way the decree allowing said will to probate. It is at
least anomalous that a will should be regarded as genuine for one
purpose and spurious for another.
The American and English cases show a conflict of authorities on
the question as to whether or not the probate of a will bars
criminal prosecution of the alleged forger of the probated will. We
have examined some important cases and have come to the
conclusion that no fixed standard may be adopted or drawn
therefrom, in view of the conflict no less than of diversity of
statutory provisions obtaining in different jurisdictions. It
behooves us, therefore, as the court of last resort, to choose that
rule most consistent with our statutory law, having in view the
needed stability of property rights and the public interest in
general. To be sure, we have seriously reflected upon the dangers
of evasion from punishment of culprits deserving of the severity of
the law in cases where, as here, forgery is discovered after the
probate of the will and the prosecution is had before the
prescription of the offense. By and large, however, the balance
seems inclined in favor of the view that we have taken. Not only
does the law surround the execution of the will with the necessary
formalities and require probate to be made after an elaborate
judicial proceeding, but section 113, not to speak of section 513, of
our Code of Civil Procedure provides for an adequate remedy to
any party who might have been adversely affected by the probate
of a forged will, much in the same way as other parties against
whom a judgment is rendered under the same or similar
circumstances. The aggrieved party may file an application for
relief with the proper court within a reasonable time, but in no
case exceeding six months after said court has rendered the
judgment probate, on the ground of mistake, inadvertence,
surprise or excusable neglect. An appeal lies to review the action
of a court of first instance when that court refuses to grant relief.
After a judgment allowing a will to be probated has become final
and unappealable, and after the period fixed by section 113 of the
(Code of Civil Procedure has expired, the law as an expression of
the legislative wisdom goes no further and the case ends there.
We hold, therefore, that in view of the provisions of sections 306,
333 and 625 of our Code of Civil Procedure, criminal action will
not lie in this jurisdiction against the forger of a will which had
been duly admitted to probate by a court of competent
jurisdiction.
Nuguid vs Nuguid
17 SCRA 449
Facts: Rosario Nuguid, a resident of Quezon City, died on
December 30, 1962, single, without descendants, legitimate or
illegitimate. Surviving her were her legitimate parents, Felix
Nuguid and Paz Salonga Nuguid, and six (6) brothers and sisters,
namely: Alfredo, Federico, Remedios, Conrado, Lourdes and
Alberto, all surnamed Nuguid.
On May 18, 1963, petitioner Remedios Nuguid filed in the Court of
First Instance of Rizal a holographic will allegedly executed by
Rosario Nuguid on November 17, 1951, some 11 years before her
demise. Petitioner prayed that said will be admitted to probate
and that letters of administration with the will annexed be issued
to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid,
concededly the legitimate father and mother of the deceased
Rosario Nuguid, entered their opposition to the probate of her will.
Ground therefor, inter alia, is that by the institution of petitioner
Remedios Nuguid as universal heir of the deceased, oppositors—
who are compulsory heirs of the deceased in the direct ascending
line—were illegally preterited and that in consequence the
institution is void.
Issue: Whether or not the will should be allowed probate
Held: Reproduced hereunder is the will:
Nov. 17, 1951
I, ROSARIO NUGUID, being of sound and disposing mind and
memory, having amassed a certain amount of property, do hereby
give, devise, and bequeath all of the property which I may have
when I die to my beloved sister Remedios Nuguid, age 34, residing
with me at 38B Iriga, Q.C. In witness whereof, I have signed my
name this seventh day of November, nineteen hundred and fifty-
one.
(Sgd.) Illegible
T/ ROSARIO NUGUID
The statute we are called upon to apply in Article 854 of the Civil
Code which, in part, provides:
“ART. 854. The preterition or omission of one, some, or all of the
compulsory heirs in the direct line, whether living at the time of
the execution of the will or born after the death of the testator,
shall annul the institution of heir; but the devises and legacies
shall be valid insofar as they are not inofficious. x x x”
Except for inconsequential variation in terms, the foregoing is a
reproduction of Article 814 of the Civil Code of Spain of 1889,
which is similarly herein copied, thus—
“Art. 814. The preterition of one or all of the forced heirs in the
direct line, whether living at the time of the execution of the will or
born after the death of the testator, shall void the institution of
heir; but the legacies and betterments shall be valid, in so far as
they are not inofficious. x x x”
A comprehensive understanding of the term preterition employed
in the law becomes a necessity.
It may now appear trite but nonetheless helpful in giving us a clear
perspective of the problem before us, to have on hand a clearcut
definition of the word annul:
“To ‘annul’ means to abrogate, to make void”
And now, back to the facts and the law. The deceased Rosario
Nuguid left no descendants, legitimate or illegitimate. But she left
forced heirs in the direct ascending line—her parents, now
oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will
completely omits both of them: They thus received nothing by the
testament; tacitly, they were deprived of their legitime; neither
were they expressly disinherited. This is a clear case of preterition,
Such preterition in the words of Manresa “anulara siempre la
institucion de heredero, dando character absoluto a este
ordenamiento”, referring to the mandate of Article 814, now 854
of the Civil Code. The one sentence will here institutes petitioner
as the sole, universal heir—nothing more. No specific legacies or
bequests are therein provided for. It is in this posture that we say
that the nullity is complete. Perforce, Rosario Nuguid died
intestate.
Really, as we analyze the word annul employed in the statute,
there is no escaping the conclusion that the universal institution of
petitioner to the entire inheritance results in totally abrogating the
will. Because, the nullification of such institution of universal
heir—without any other testamentary disposition in the will—
amounts to a declaration that nothing at all was written. Carefully
worded and in clear terms, Article 854 offers no leeway for
inferential interpretation. Giving it an expansive meaning will tear
up by the roots the fabric of the statute.
We should not be led astray by the statement in Article 854 that,
annullment notwithstanding, ‘the devises and legacies shall be
valid insofar as they are not inofficious”. Legacies and devises
merit consideration only when they are so expressly given as such
in a will. Nothing in Article 854 suggests that the mere institution
of a universal heir in a will—void because of preterition—would
give the heir so instituted a share in the inheritance. As to him, the
will is inexistent. There must be, in addition to such institution, a
testamentary disposition granting him bequests or legacies apart
and separate from the nullified institution of heir. Article 814, now
854, states that preterition annuls the institution of the heir
“totalmente por la pretericion”; but added (in reference to legacies
and bequests), “pero subsistiendo, x x x todas aquellas otras
disposiciones que no se refieren a la nsti tucion de heredero x x x".
As Manresa puts it, annulment throws open to intestate succession
the entire inheritance including “la porcion libre (que) no hubiese
dispuesto en virtud de legado, mejora o donacion.
As aforesaid, there is no other provision in the will before us except
the institution of petitioner as universal heir. That institution, by
itself, is null and void. And, intestate succession ensues.
Petitioner’s mainstay is that the present is “a case of ineffective
disinheritance rather than one of preterition”. From this,
petitioner draws the conclusion that Article 854 “does not apply to
the case at bar”. This argument fails to appreciate the distinction
between preterition and disinheritance.
Preterition “consists in the omission in the testator’s will of the
forced heirs or anyone of them, either because they are not
mentioned therein, or, though mentioned, they are neither
instituted as heirs nor are expressly disinherited." Disinheritance,
in turn, “is a testamentary disposition depriving any compulsory
heir of his share in the legitime for a cause authorized by law." In
Manresa’s own words: “La privacion expresa de la legitima
constituye la desheredacion. La privacion tacita de la misma se
denomina pretericion." Sanchez Roman emphasizes the distinction
by stating that disinheritance “es siempre voluntaria”; preterition,
upon the other hand, is presumed to be “involuntaria".19 Express
as disinheritance should be, the same must be supported by a legal
cause specified in the will itself.
The will here does not explicitly disinherit the testatrix’s parents,
the forced heirs. It simply omits their names altogether. Said will
rather than be labeled ineffective disinheritance is clearly one in
which the said forced heirs suffer from preterition.
On top of this is the fact that the effects flowing from preterition
are totally different from those of disinheritance. Preterition under
Article 854 of the Civil Code, we repeat, “shall annul the institution
of heir”. This annulment is in toto, unless in the will there are, in
addition, testamentary dispositions in the form of devises or
legacies. In ineffective disinheritance under Article 918 of the
same Code, such disinheritance shall also “annul the institution of
heirs”, put only “insofar as it may prejudice the person
disinherited”, which last phrase was omitted in the case of
preterition. Better stated yet, in disinheritance the nullity is limited
to that portion of the estate of which the disinherited heirs have
been illegally deprived. Manresa’s expressive language, in
commenting on the rights of the preterited heirs in the case of
preterition on the one hand and legal disinheritance on the other,
runs thus: “Preteridos, adquiren el derecho a todo; desheredados
solo les corresponde un tercio o dos tercios, el caso.”
Petitioner insists that the compulsory heirs ineffectively
disinherited are entitled to receive their legitimes, but that the
institution of heir “is not invalidated,” although the inheritance of
the heir so instituted is reduced to the extent of said legitimes.
This is best answered by a reference to the opinion of Mr. Chief
Justice Moran in the Neri case heretofore cited, viz:
“But the theory is advanced that the bequest made by universal
title in favor of the children by the second marriage should be
treated as legado and mejora and, accordingly, it must not be
entirely annulled but merely reduced. This theory, if adopted, will
result in a complete abrogation of Articles 814 and 851 of the Civil
Code. If every case of institution of heirs may be made to fall into
the concept of legacies and betterments reducing the bequest
accordingly, then the provisions of Articles 814 and 851 regarding
total or partial nullity of the institution, would be absolutely
meaningless and will never have any application at all. And the
remaining provisions contained in said article concerning the
reduction of inofficious legacies or betterments would be a
surplusage because they would be absorbed by Article 817. Thus,
instead of construing, we would be destroying integral provisions
of the Civil Code.
The destructive effect of the theory thus advanced is due mainly to
a failure to distinguish institution of heirs from legacies and
betterments, and a general from a special provision. With
reference to article 814, which is the only provision material to the
disposition of this case, it must be observed that the institution of
heirs is therein dealt with as a thing separate and distinct from
legacies or betterments. And they are separate and distinct not
only because they are distinctly and separately treated in said
article but because they are in themselves different. Institution of
heirs is a bequest by universal title of property that is
undetermined. Legacy refers to specific property bequeathed by a
particular or special title. x x x But again an institution of heirs
cannot be taken as a legacy.
The disputed order, we observe, declares the will in question “a
complete nullity”. Article 854 of the Civil Code in turn merely
nullifies “the institution of heir”. Considering, however, that the
will before us solely provides for the institution of petitioner as
universal heir, and nothing more, the result is the same. The entire
will is null.
Caniza vs CA
268 SCRA 641
Facts: On November 20, 1989, being then 94 years of age, Carmen
Cañiza, a spinster, a retired pharmacist, and former professor of
the College of Chemistry and Pharmacy of the University of the
Philippines, was declared incompetent by judgment in a
guardianship proceeding instituted by her niece, Amparo A.
Evangelista. She was so adjudged because of her advanced age and
physical infirmities which included cataracts in both eyes and
senile dementia. Amparo A. Evangelista was appointed legal
guardian of her person and estate. Cañiza was the owner of a
house and lot. On September 17, 1990, her guardian Amparo
Evangelista commenced a suit to eject the spouses Pedro and
Leonora Estrada from said premises. The complaint was later
amended to identify the incompetent Cañiza as plaintiff, suing
through her legal guardian, Amparo Evangelista.
The amended Complaint5 pertinently alleged that plaintiff Cañiza
was the absolute owner of the property in question; that out of
kindness, she had allowed the Estrada Spouses, their children,
grandchildren and sons-in-law to temporarily reside in her house,
rent-free; that Cañiza already had urgent need of the house on
account of her advanced age and failing health, “so funds could be
raised to meet her expenses for support, maintenance and medical
treatment”; that through her guardian, Cañiza had asked the
Estradas verbally and in writing to vacate the house but they had
refused to do so; and that “by the defendants’ act of unlawfully
depriving plaintiff of the possession of the house in question, they
** (were) enriching themselves at the expense of the incompetent,
because, while they ** (were) saving money by not paying any rent
for the house, the incompetent ** (was) losing much money as her
house could not be rented by others.” Also alleged was that the
complaint was “filed within one (1) year from the date of first
letter of demand dated February 3, 1990.”
In their Answer with Counterclaim, the defendants declared that
they had been living in Cañiza’s house since the 1960’s; that in
consideration of their faithful service they had been considered by
Cañiza as her own family, and the latter had in fact executed a
holographic will on September 4, 1988 by which she “bequeathed”
to the Estrada’s the house and lot in question.
MeTC: Judgement in favor of Caniza, the Estradas being ordered to
vacate the premises and pay Cañiza P5,000.00 by way of attorney’s
fees.

RTC: Held that the “action by which the issue of defendants’
possession should be resolved is accion publiciana, the obtaining
factual and legal situation ** demanding adjudication by such
plenary action for recovery of possession cognizable in the first
instance by the Regional Trial Court.”
CA: Affirmed the RTC’s judgment in toto. It ruled that (a) the
proper remedy for Cañiza was indeed an accion publiciana in the
RTC, not an accion interdictal in the MetroTC, since the
“defendants have not been in the subject premises as mere tenants
or occupants by tolerance, they have been there as a sort of
adopted family of Carmen Cañiza,” as evidenced by what purports
to be the holographic will of the plaintiff; and (b) while “said will,
unless and until it has passed probate by the proper court, could
not be the basis of defendants’ claim to the property, ** it is
indicative of intent and desire on the part of Carmen Cañiza that
defendants are to remain and are to continue in their occupancy
and possession, so much so that Cañiza’s supervening
incompetency cannot be said to have vested in her guardian the
right or authority to drive the defendants out.”
Carmen Cañiza died on March 19, 1994, and her heirs —the
aforementioned guardian, Amparo Evangelista, and Ramon C.
Nevado, her niece and nephew, respectively—were by this Court’s
leave, substituted for her.
Issue: (a) whether or not an ejectment action is the appropriate
judicial remedy for recovery of possession of the property in
dispute;
(b) assuming desahucio to be proper, whether or not Evangelista,
as Cañiza’s legal guardian had authority to bring said action; and
(c) assuming an affirmative answer to both questions, whether or
not Evangelista may continue to represent Cañiza after the latter’s
death
Held: (a) Undoubtedly, a cause of action for desahucio has been
adequately set out. It is settled that in an action for unlawful
detainer, it suffices that the defendant is unlawfully withholding
possession from the plaintiff is deemed sufficient, and a complaint
for unlawful detainer is sufficient if it alleges that the withholding
of possession or the refusal to vacate is unlawful without
necessarily employing the terminology of the law.
Cañiza’s act of allowing the Estradas to occupy her house,
rent-free, did not create a permanent and indefeasible right of
possession in the latter’s favor. Common sense, and the most
rudimentary sense of fairness clearly require that that act of
liberality be implicitly, but no less certainly, accompanied by the
necessary burden on the Estradas of returning the house to Cañiza
upon her demand. More than once has this Court adjudged that a
person who occupies the land of another at the latter’s tolerance
or permission without any contract between them is necessarily
bound by an implied promise that he will vacate upon demand,
failing which a summary action for ejectment is the proper remedy
against him.
The Estradas’ possession of the house stemmed from the owner’s
express permission. That permission was subsequently
withdrawn by the owner, as was her right; and it is immaterial
that the withdrawal was made through her judicial guardian, the
latter being indisputably clothed with authority to do so. Nor is it
of any consequence that Carmen Cañiza had executed a will
bequeathing the disputed property to the Estradas; that
circumstance did not give them the right to stay in the premises
after demand to vacate on the theory that they might in the future
become owners thereof, that right of ownership being at best
inchoate, no transfer of ownership being possible unless and until
the will is duly probated.
Thus, at the time of the institution of the action of desahucio, the
Estradas had no legal right to the property, whether as possessors
by tolerance or sufferance, or as owners. They could not claim the
right of possession by sufferance that had been legally ended. They
could not assert any right of possession flowing from their
ownership of the house; their status as owners is dependent on
the probate of the holographic will by which the property had
allegedly been bequeathed to them—an event which still has to
take place; in other words, prior to the probate of the will, any
assertion of possession by them would be premature and
inefficacious.
(b) A will is essentially ambulatory; at any time prior to the
testator’s death, it may be changed or revoked;29 and until
admitted to probate, it has no effect whatever and no right can be
claimed thereunder, the law being quite explicit: “No will shall
pass either real or personal property unless it is proved and
allowed in accordance with the Rules of Court” (ART. 838, id.). An
owner’s intention to confer title in the future to persons
possessing property by his tolerance, is not inconsistent with the
former’s taking back possession in the meantime for any reason
deemed sufficient. And that in this case there was sufficient cause
for the owner’s resumption of possession is apparent: she needed
to generate income from the house on account of the physical
infirmities afflicting her, arising from her extreme age.
Amparo Evangelista was appointed by a competent court the
general guardian of both the person and the estate of her aunt,
Carmen Cañiza. Her Letters of Guardianship dated December 19,
1989 clearly installed her as the “guardian over the person and
properties of the incompetent CARMEN CAÑIZA with full authority
to take possession of the property of said incompetent in any
province or provinces in which it may be situated and to perform
all other acts necessary for the management of her properties **.”
By that appointment, it became Evangelista’s duty to care for her
aunt’s person, to attend to her physical and spiritual needs, to
assure her wellbeing, with right to custody of her person in
preference to relatives and friends. It also became her right and
duty to get possession of, and exercise control over, Cañiza’s
property, both real and personal, it being recognized principle that
the ward has no right to possession or control of his property
during her incompetency. That right to manage the ward’s estate
carries with it the right to take possession thereof and recover it
from anyone who retains it, and bring and defend such actions as
may be needful for this purpose.
Actually, in bringing the action of desahucio, Evangelista was
merely discharging the duty to attend to “the comfortable and
suitable maintenance of the ward” explicitly imposed on her by
Section 4, Rule 96 of the Rules of Court.
(c) While it is indeed well-established rule that the relationship of
guardian and ward is necessarily terminated by the death of either
the guardian or the ward, the rule affords no advantage to the
Estradas. Amparo Evangelista, as niece of Carmen Cañiza, is one of
the latter’s only two (2) surviving heirs, the other being Cañiza’s
nephew, Ramon C. Nevado. On their motion and by Resolution of
this Court39 of June 20, 1994, they were in fact substituted as
parties in the appeal at bar in place of the deceased, in accordance
with Section 17, Rule 3 of the Rules of Court.
Preterition
Pecson vs Coronel
45 Phil 216
Facts: On November 28, 1922, the Court of First Instance of
Pampanga probated as the last will and testament of Dolores
Coronel, the document Exhibit A, which translated is as follows:
"In the name of God, Amen:
"I, Dolores Coronel, resident of Betis, Guagua, Pampanga,
Philippine Islands, in the full exercise of my mental faculties, do
hereby make my last will and testament, and revoke all former
wills by me executed.
"I direct and order that my body be buried in conformity with my
social standing.
"That having no forced heirs, I will all my properties, both movable
and immovable, to my nephew, Lorenzo Pecson, who is married to
my niece Angela Coronel, in consideration of the good services
which he has rendered, and is rendering to me with good will and
disinterestedness and to my full satisfaction.
"I name and appoint my aforesaid nephew, Lorenzo Pecson,
executor of all that is willed and ordained in this my will, without
bond. Should he not be able to discharge his duties as such
executor for any reason whatsoever, I name and appoint as
substitute executor my grandson Victor Pecson, a native and
resident of the town of Betis, without requiring him to give bond.
"All my real and paraphernal property as well as my credits, for I
declare that I have no debts, are specified in an inventory.
"In testimony whereof and as I do not know how to write my
name, I have requested Vicente J. Francisco to write my name at
the foot hereof and on the left margin of each of its sheets before
me and all the undersigned witnesses this July 1, 1918.
"VICENTE J. FRANCISCO
"For the testatrix Dolores Coronel
"The foregoing document was executed and declared by Dolores
Coronel to be her last will and testament in our presence, and as
the testatrix does not know how to write her name, she requested
Vicente J. Francisco to sign her name under her express direction
in our presence, at the f oot, and on the left t margin of each and
every sheet, hereof. In testimony whereof, each of us signed these
presents in the presence of others and of the testatrix at the foot
hereof and on the margin of each and everyone of the two sheets
of which this document is composed, which are numbered "one"
and "two" on the upper part of the face thereof.
(Sgd.) "MAXIMO VERGARA
SOTERO DUMAUAL
MARCOS DE LOS SANTOS
MARIANO L. CRISOSTOMO
PABLO BARTOLOME
MARCOS DE LA CRUZ
DAMIAN CRISOSTOMO
"On. the left margin of the two sheets of the will the following
signatures also appear: ''Mariano L. Crisostomo, Vicente J.
Francisco for the testatrix Dolores Coronel, M. Vergara, Pablo
Bartolome, Sotero Dumaual, Damian Crisostomo, Marcos de la,
Cruz, Marcos de los Santos."
The petitioner for the probate of the will is Lorenzo Pecson,
husband of Angela Coronel, who is a niece of the deceased Dolores
Coronel.
The opponents are: Eriberto Coronel, Tito Coronel, Julian Gozum,
Cirila Santiago, widow of the deceased Ma cario Gozum, in her own
behalf and that of her three minor children, Hilarion Coronel,
Geronimo Coronel, Maria Coronel and her husband Eladio Gongco,
Juana Bituin, widow of the deceased Hipolito Coronel, in her own
behalf and that of her three children, Generosa, Maria, and Jose, all
minors, Rosario Coronel, Agustin Coronel, Filomeno Coronel,
Casimiro Coronel, Alejo Coronel, Maria Coronel, Severina Coronel,
Serapia Coronel, Maria Juana de Ocampo, widow of the deceased
Manuel Coronel, Dionisia Coronel, and her husband Pantaleon
Gunlao.
Issues: (a) That the proof does not show that the document
Exhibit A above copied contains the last will of Dolores Coronel,
and
(b) that the attestation clause is not in accordance with the
provisions of section 618 of the Code of Civil Procedure, as
amended by Act No. 2645.
Held: (a) The opponents contend that it was not, nor could it be,
the will of the testatrix, because it is not natural nor usual that she
should completely exclude her blood relatives from her vast
estate, in order to will the same to one who is only a relative by
affinity, there appearing no sufficient motive for such exclusion,
inasmuch as until the death of Dolores Coronel, she maintained
very cordial relations with the aforesaid relatives who had helped
her in the management and direction of her lands. It appears,
however, from the testimony of Attorney Francisco (page 71,
transcript of the stenographic notes) that Dolores Coronel
revealed to him her suspicion against some of her nephews as
having been accomplices in a robbery of which she had been a
victim.
As to whether or not Lorenzo Pecson rendered services to Dolores
Coronel, the opponents admit that he rendered them at least from
the year 1914, although there is proof showing that he rendered
such services long before that time.
The appellants emphasize the fact that family ties in this country
are very strongly knit and that the exclusion of relative from one's
estate is an exceptional case. It is true that the ties of relationship
in the Philippines are very strong, but we understand that cases of
preterition of relatives from the inheritance are not rare. The
liberty to dispose of one's estate by will when there are no forced
heirs is rendered sacred by the Civil Code in force in the
Philippines since 1889. It is so provided in the first paragraph of
article 763 in the following terms:
"Any person who has no forced heirs may dispose by will of all his
property or any part of it in favor of any person qualified to
acquire it."
Even ignoring the precedents of this legal precept, the Code
embodying it has been in force in the Philippines for more than a
quarter of a century, and for this reason it is not tenable to say that
the exercise of the liberty thereby granted is necessarily
exceptional, where it is not shown that the inhabitants of this
country whose customs must have been taken into consideration
by the legislator in adopting this legal precept, are averse to such a
liberty.
As to the preference given to Lorenzo Pecson, -it is not purely
arbitrary, nor a caprice or a whim of the 'moment. The proof
adduced by this appellee, although contradicted, shows by a
preponderance of evidence that besides the services which the
opponents admit had been rendered by him to Dolores Coronel
since the year 1914, he had also rendered services prior to that
time and was the administrator and manager of the affairs of said
Dolores in the last years of her life. And that this was not a whim of
the moment is shown by the fact that six years before the
execution of the will in question, said Lorenzo Pecson was named
and appointed by Dolores Coronel as her sole heir in the
document.
The appellants find in the testament Exhibit B something to
support their contention that the intention of Dolores Coronel was
to institute the said Pecson not as sole beneficiary, but simply as
executor and distributor of all her estate among her heirs, for
while Lorenzo Pecson's contention that he was appointed sole
beneficiary is based on the fact that he enjoyed the confidence of
Dolores Coronel in 1918 and administered all her property, he did
not exclusively have this confidence and administration in the year
1912. Although such administration and confidence were enjoyed
by Pecson always jointly with others and never exclusively, this
fact does not show that the will of the testatrix was to appoint
Pecson only as executor and distributor of her estate among the
heirs, nor does it prevent her, the testatrix, from instituting him in
1912 or 1918 as sole beneficiary; nor does it constitute, lastly, a
test for determining whether or not such institution in favor of
Pecson was the true will of the testatrix.
We find, therefore, nothing strange in the preterition made by
Dolores Coronel of her blood relatives, nor in the designation of
Lorenzo Pecson as her sole beneficiary. Furthermore, although the
institution of the beneficiary here would not seem the most usual
and customary, still this would not be null per se.
"In the absence of any statutory restriction every person possesses
absolute dominion over his property, and may bestow it upon
whomsoever he pleases without regard to natural or legal claim
upon his bounty. If the testator possesses the requisite capacity to
make a will, and the disposition of his property is not affected by
fraud or undue influence, the will is not rendered invalid by the
fact that it is unnatural, unreasonable, or unjust. Nothing can
prevent the testator from making a will as eccentric, as injudicious,
or as unjust as caprice, frivolity, or revenge can dictate. However,
as has already been shown, the unreasonableness or injustice of a
will may be considered on the question of testamentary capacity."
(b) About the year 1916 or 1917, Dolores Coronel showed the
document Exhibit B to Attorney Francisco who was then her legal
adviser and who, considering that in order to make the expression
of her last will more legally valid, thought it necessary that the
testament be prepared in conformity with the laws in force at the
time of the death of the testatrix, and observing that the will
Exhibit B lacked the extrinsic formalities required by Act No. 2645
enacted after its execution, advised Dolores Coronel that the will
be remade. She followed the advice, and Attorney Francisco, after
receiving her instructions, drew the will Exhibit A in accordance
therewith, and brought it to the house of Dolores Coronel for its
execution.
Pablo Bartolome read Exhibit A to Dolores Coronel in her presence
and that of the witnesses and asked her whether the will was in
accordance with her wishes. Dolores Coronel answered that it was,
and requested her attorney, Mr. Francisco, to sign the will for her,
which the attorney accordingly did in the presence of the
witnesses, who in turn signed it before the testatrix and in the
presence of each other.
While it is true that the petitioner was bound to present Pablo
Bartolome, being one of the witnesses who signed the will, at the
second hearing when the probate was controverted, yet we cannot
consider this point against the appellee for this was not raised in
any of the assignments of error made by the appellants. (Art. 20,
Rules of the Supreme Court.)
On the other hand, it was incumbent upon the opponents to
present Pablo Bartolome to prove before the court the statement
made by him in his affidavit, since it was their duty to prove what
they alleged, which was that Dolores Coronel had not understood
the true contents of the will Exhibit A. Having suppressed, without
explanation, the testimony of Pablo Bartolome, the presumption is
against the opponents and that is, that such a testimony would
have been adverse had it been produced at the hearing of the case
before the court.
(c) The opponents call our attention to the fourth clause of the
document which says: "I name and appoint my aforesaid nephew,
Lorenzo Pecson, executor of all that is willed and ordained in this
my will, without bond. Should he not be able to discharge his
duties as such executor for any reason whatsoever, I name and
appoint as a substitute executor my grandson Victor Pecson,
resident of the town of Betis, without requiring him to give bond,"
and contend that this clause is repugnant to the institution of
Lorenzo Pecson as sole beneficiary of all her estate, for if such was
the intention of the testatrix, there would have been no necessity
of appointing an executor, nor any reason for designating a
substitute in case that the first one should not be able to discharge
his duties, and they perceived in this clause the idea which,
according to them, was not expressed in the document, and which
was that Pecson was simply to be a mere executor entrusted with
the distribution of the estate among the relatives of the testatrix,
and that should he not be able to do so, this duty would devolve
upon his substitute.
But it is not the sole duty of an executor to distribute the estate,
which in testate succession, such as the instant case, has to be
distributed with the intervention of the court. An executor has,
besides, other duties and general and special powers intended for
the preservation, defense, and liquidation of the estate so long as
the same has not reached, by order of the court, the hands of those
entitled thereto.
The fact that Dolores Coronel foresaw the necessity of an executor
does not imply a negation of her desire to will all her estate to
Lorenzo Pecson. It is to be noted, furthermore, that in the will, it
was ordered that her body be given a burial in accordance with
her social standing and she had a perfect right to designate a
person who should see to it that this order was complied with. One
of the functions of an executor is the fulfillment of what is
ordained in the will.
It is argued that the will of the testatrix was to will her estate to
her blood relatives, for such was the promise made to Maria
Coronel, whom Rosario Coronel tends to corroborate. We do not
find such a promise to have been sufficiently proven, and much
less to have been seriously made and coupled with a positive
intention on the part of Dolores Coronel to fulfill the same. In the
absence of sufficient proof of fraud, or undue influence, we cannot
take such a promise into account, for even if such a promise was in
fact made, Dolores Coronel could retract or forget it afterwards
and dispose of her estate as she pleased. Wills themselves, which
contain more than mere promises, are essentially revocable.
The disputed phrase "in order that the latter might dispose of the
estate in the most appropriate manner" was used by the witness
Reyes while sick in a hospital and testifying in the course of the
taking of his deposition.
The appellants interpret the expression "dispose in the most
appropriate manner" as meaning to say "distribute it among the
heirs." Limiting ourselves to its meaning, the expression is a broad
one, for the disposition may be effected in several and various
ways, which may not necessarily be a "distribution among the
heirs," and still be a "disposition in the most appropriate manner."
"To dispose" is not the same as "to distribute."
To judge correctly the import of this phrase, the circumstances
under which it was used must be taken into account in this
particular instance. The witness Reyes, the author of the phrase,
was not expressing his own original ideas when he used it, but was
translating into Spanish what Dolores Coronel had told him.
According to the facts, the said witness is not a Spaniard, that is to
say, the Spanish language is not his native tongue, but, perhaps,
the Pampango dialect. It is an admitted fact based on reason and
experience that when a person translates from one language to
another, it is easier for him to express with precision and accuracy
when the version is from a foreign language to a native one than
vice-versa. The witness Reyes translated from the Pampango
dialect, which must be more familiar to him, to the Spanish
language which is not his own tongue. And judging from the
language used by him during his testimony in this case, it cannot
be said that this witness masters the Spanish language. Thus is
explained the f act that when asked to give the reason f or the
appointment of an executor in the will, he should say at the
morning session that "Dolores Coronel did appoint Don Lorenzo
Pecson and in his default, Victor Pecson, to act during her lifetime,
but not after her death," which was explained at the afternoon
session by saying "that Dolores Coronel did appoint Don Lorenzo
Pecson executor of all her estate during his lifetime and that in his
default, either through death or incapacity, Mr. Victor Pecson was
appointed executor." Taking into account all the circumstances of
this witness, there is ground to attribute his inaccuracy as to the
discharge of the duties of an executor, not to ignorance of the
elementary rule of law on the matter, for the practice of which he
was qualified, but to a non-mastery of the Spanish language. We
find in this detail of translation made by the witness Reyes no
sufficient reason to believe that the will expressed by Dolores
Coronel at the said interview with Attorney Francisco was to
appoint Lorenzo Pecson executor and mere distributor of her
estate among her heirs.
(d) As to whether or not the burden of proof was on the petitioner
to establish that he was the sole legatee to the exclusion of the
relatives of Dolores Coronel, we understand that it was not his
duty to show the reasons which the testatrix may have had for
excluding her relatives from her estate, giving preference to him.
His duty was to prove that the will was voluntary and authentic
and he, who alleges that the estate was willed to another, has the
burden of proving his allegation.
Attorney Francisco is charged with having employed improper
means for making Lorenzo Pecson appear in the will as sole
beneficiary. However, after an examination of all the proceedings
had, we cannot find anything in the behavior of this lawyer,
relative to the preparation and execution of the will, that would
justify an unfavorable conclusion as to his personal and
professional conduct, nor that he should harbor any wrongful or
fraudulent purpose.
We find nothing censurable in his conduct in advising Dolores
Coronel to make a new will other than the last one, Exhibit B (in
the drawing of which he does not appear to have intervened), so
that the instrument might be executed with all the new formalities
required by the laws then in force; nor in the preparation of the
new will substantially in accordance with the old one; nor in the
selection of attesting witnesses who were persons other than the
relatives of Dolores Coronel.
(e) Appellants remark that it is not stated in this clause that the
will was signed by the witnesses in the presence of the testatrix
and of each other, as required by section 618 of the Code of Civil
Procedure, as amended, which on this particular point provides
the following:
"The attestation shall state the number of sheets or pages used,
upon which the will is written, and the fact that the testator signed
the will and every page thereof, or caused some other person to
write his name, under his express direction, in the presence of
three witnesses, and the latter witnessed and signed the will and
all pages thereof in the presence of the testator and of each other."
Stress is laid on the phrase used in the attestation clause above
copied, to wit:
"each of us signed in the presence of others."
We believe it to be more reasonable to construe the disputed
phrase "of others" as meaning "of the other witnesses" and that a
grammatical or clerical error was committed consisting in the
omission of the article "the." Grammatical or clerical errors are not
usually considered of vital importance when the intention is
manifest in the will.
"The court may correct clerical mistakes in writing, and disregard
technical rules of grammar as to the construction of the language
of the will when it becomes necessary for it to do so in order to
effectuate the testator's manifest intention as ascertained from the
context of the will. But unless a different construction is so
required the ordinary rules of grammar should be adhered to in
construing the will."
And we understand that in the present case the interpretation we
adopt is imperative, being the most adequate and reasonable.
The evidence leads us to the conclusion that the two witnesses
aforementioned were present at the execution and signing of the
will. Such is also the conclusion of the trial judge who, in this
respect, states the following, in his decision:
"As to the question of whether or not the testatrix and the
witnesses signed the document Exhibit A in accordance with the
provisions of law on the matter, that is, whether or not the
testatrix signed the will, or caused it to be signed, in the presence
of the witnesses, and the latter in turn signed in her presence and
that of each other, the court, after observing the demeanor of the
witnesses for both parties, is of the opinion that those for the
petitioner spoke the truth. It is neither probable nor likely that a
man versed in the law, such as Attorney Francisco, who was
present at the execution of the will in question, and to whose
conscientiousness in the matter of compliance with all the
extrinsic f ormalities of the execution of a will, and to nothing else,
was due the fact that the testatrix had canceled her former will
(Exhibit B) and had a new one (Exhibit A) prepared and executed,
should have consented the omission of a formality compliance
with which would have required little or no effort; namely, that of
seeing to it that the testatrix and the attesting witnesses were all
present when their respective signatures were affixed to the will."
And the record does not furnish us sufficient ground for deviating
from the line of reasoning and findings of the trial judge.
Acain vs IAC
155 SCRA 101
Facts: On May 29, 1984 petitioner Constantino Acain filed a
petition for the probate of the will of the late Nemesio Acain and
for the issuance to the same petitioner of letters testamentary, on
the premise that Nemesio Acain died leaving a will in which
petitioner and his brothers Antonio, Flores and Jose and his sisters
Anita, Concepcion, Quirina and Laura were instituted as heirs. The
will allegedly executed by Nemesio Acain on February 17, 1960
was written in Bisaya with a translation in English submitted by
petitioner without objection raised by private respondents. The
will contained provisions on burial rites, payment of debts, and the
appointment of a certain Atty. Ignacio G. Villagonzalo as the
executor of the testament. On the disposition of the testator’s
property, the will provided:
“THIRD: All my shares that I may receive from our properties,
house, lands and money which I earned jointly with my wife Rosa
Diongson shall all be given by me to my brother SEGUNDO ACAIN,
Filipino, widower, of legal age and presently residing at 357-C
Sanciangko Street, Cebu City. In case my brother Segundo Acain
predeceases me, all the money properties, lands, houses there in
Bantayan and here in Cebu City which constitute my share shall be
given by me to his children, namely: Anita, Constantino,
Concepcion, Quirina, Laura, Flores, Antonio and Jose, all surnamed
Acain.”
Obviously, Segundo pre-deceased Nemesio. Thus, it is the children
of Segundo who are claiming to be heirs, with Constantino.
Issue: Whether or not private respondents have been preterited
Held: Article 854 of the Civil Code provides:
“Art. 854. The preterition or omission of one, some, or all of the
compulsory heirs in the direct line, whether living at the time of
the execution of the will or born after the death of the testator,
shall annul the institution of heir; but the devisees and legacies
shall be valid insofar as they are not inofficious. If the omitted
compulsory heirs should die before the testator, the institution
shall be effectual, without prejudice to the right of representation.”
Preterition consists in the omission in the testator’s will of the
forced heirs or anyone of them either because they are not
mentioned therein, or, though mentioned, they are neither
instituted as heirs nor are expressly disinherited. Insofar as the
widow is concerned, Article 854 of the Civil Code may not apply as
she does not ascend or descend from the testator, although she is a
compulsory heir. Stated otherwise, even if the surviving spouse is
a compulsory heir, there is no preterition even if she is omitted
from the inheritance, for she is not in the direct line. (Art. 854,
Civil Code) However, the same thing cannot be said of the other
respondent Virginia A. Fernandez, whose legal adoption by the
testator has not been questioned by petitioner. Under Article 39 of
P.D. No. 603, known as the Child and Youth Welfare Code, adoption
gives to the adopted person the same rights and duties as if he
were a legitimate child of the adopter and makes the adopted
person a legal heir of the adopter. It cannot be denied that she was
totally omitted and preterited in the will of the testator and that
both adopted child and the widow were deprived of at least their
legitime. Neither can it be denied that they were not expressly
disinherited. Hence, this is a clear case of preterition of the legally
adopted child.
Preterition annuls the institution of an heir and annulment throws
open to intestate succession the entire inheritance including “la
portion libre (que) no hubiese dispuesto en virtual de legado,
mejora o donation”. The only provisions which do not result in
intestacy are the legacies and devises made in the will for they
should stand valid and respected, except insofar as the legitimes
are concerned.
The universal institution of petitioner together with his brothers
and sisters to the entire inheritance of the testator results in
totally abrogating the will because the nullification of such
institution of universal heirs—without any other testamentary
disposition in the will—amounts to a declaration that nothing at
all was written. Carefully worded and in clear terms, Article 854 of
the Civil Code offers no leeway for inferential interpretation. No
legacies nor devises having been provided in the will the whole
property of the deceased has been left by universal title to
petitioner and his brothers and sisters. The effect of annulling the
institution of heirs will be, necessarily, the opening of a total
intestacy except that proper legacies and devises must, as already
stated above, be respected.
(b) In order that a person may be allowed to intervene in a
probate proceeding he must have an interest in the estate, or in
the will, or in the property to be affected by it either as executor or
as a claimant of the estate and an interested party is one who
would be benefited by the estate such as an heir or one who has a
claim against the estate like a creditor. Petitioner is not the
appointed executor, neither a devisee or a legatee there being no
mention in the testamentary disposition of any gift of an individual
item of personal or real property he is called upon to receive. At
the outset, he appears to have an interest in the will as an heir,
defined under Article 782 of the Civil Code as a person called to
the succession either by the provision of a will or by operation of
law. However, intestacy having resulted from the preterition of
respondent adopted child and the universal institution of heirs,
petitioner is in effect not an heir of the testator. He has no legal
standing to petition for the probate of the will left by the deceased
and Special Proceedings must be dismissed.
As stated by respondent Court, the general rule is that the probate
court’s authority is limited only to the extrinsic validity of the will,
the due execution thereof, the testator’s testamentary capacity and
the compliance with the requisites or solemnities prescribed by
law. The intrinsic validity of the will normally comes only after the
Court has declared that the will has been duly authenticated. Said
court at this stage of the proceedings is not called upon to rule on
the intrinsic validity or efficacy of the provisions of the will.
The rule, however, is not inflexible and absolute. Under
exceptional circumstances, the probate court is not powerless to
do what the situation constrains it to do and pass upon certain
provisions of the will.
In the instant case private respondents filed a motion to dismiss
the petition in Sp. Proceedings No. 591-CEB of the Regional Trial
Court of Cebu on the following grounds: (1) petitioner has no legal
capacity to institute the proceedings; (2) he is merely a universal
heir; and (3) the widow and the adopted daughter have been
preterited.
For private respondents to have tolerated the probate of the will
and allowed the case to progress when on its face the will appears
to be intrinsically void as petitioner and his brothers and sisters
were instituted as universal heirs coupled with the obvious fact
that one of the private respondents had been preterited would
have been an exercise in futility. It would have meant a waste of
time, effort, expense, plus added futility. The trial court could have
denied its probate outright or could have passed upon the intrinsic
validity of the testamen-tary provisions before the extrinsic
validity of the will was resolved. The remedies of certiorari and
prohibition were properly availed of by private respondents.
Neri vs Akutin
74 Phil 185
Facts: This is the case where the testator in his will left all his
property by universal title to the children by his second marriage,
the herein respondents, with preterition of the children by his first
marriage, the herein petitioners. This Court annulled the
institution of heirs and declared a total intestacy.
A motion for reconsideration has been filed by the respondents on
the ground (1) that there is no preterition as to the children of the
first marriage who have receive their shares in the property left by
the testator, and (2) that, even assuming that there has been a
preterition, the effect would not be the annulment of the
institution of heirs but simply the reduction of the bequest made
to them.
The findings of the trial court and those of the Court of
Appeals are contrary to respondents' first contention. The children
of the first marriage are Eleuterio, Agripino, Agapita, Getulia (who
died a little less than eight years before the death of her father
Agripino Neri, leaving seven children), Rosario and Celerina.
As to Eleuterio, the trial court said that "it is not, therefore, clear
that Eleuterio has received his share out of the properties left by hi
s father." It is true that Eleuterio appears to have received, as a
donation from his father, parcel of land No. 4, but the question of
whether there has been a donation or not is apparently left for
decision in an independent action, and to that effect Ignacia Akutin
has been appointed special administratrix for the purpose of
instituting such action.
With respect to Agripino and Agapita, the parcels of land which
they have occupied, according to the trial Court, "are a part of
public land which had been occupied by Agripino Neri Chaves,
and, therefore, were not a part of the estate of the latter."
Concerning Getulia who did about eight years before the death of
her father Agripino Neri, the trial Court found that "neither Getulia
nor her heirs received any share of the properties."
And with respect to Rosario and Celerina, the trial Court said that
"it does not appear clear, therefore, that Celerina and Rosario
received their shares in the estate left by their father Agripino Neri
Chaves.
This is connection with the property, real or personal, left by the
deceased. As to money advances, the trial Court found:
"It is contended, furthermore, that the children of Agripino Neri
Chaves in his first marriage received money from their father. It
appears that Nemesio Chaves is indebted in the amount of P1,000;
Agripino, in the amount of P500; Getulia, in the amount of P155;
Celerina in the amount of P120"
From these findings of the trial Court it is clear that Agapita,
Rosario and the children of Getulia had received from the testator
no property whatsoever, personal, real or in cash.
But clause 8 of the will is invoked wherein the testator made the
statement that the children by his first marriage had already
received their shares in his property excluding what he had given
them as aid during their financial trouble and the money they had
borrowed from him which he condoned in the will.
Issue:
Held: (a) We can rely only upon the findings of fact made by the
latter Court, which are as follows:
"Since all the parcels that corresponded to Agripino Neri y Chaves
are now in the administrator's possession, as appears in the
inventory filed in court, it is clear that the property of the deceased
has remained intact and that no portion thereof has been given to
the children of the first marriage.
"Its is stated by the court and practically admitted by the
appellants that a child of the first marriage named Getulia, or her
heirs after her death, did not receive any share of the property of
her father." It is true that in the decision of the Court of Appeals
there is also the following paragraph:
"As regards that large parcel of land adjoining parcel No. 1, it is
contended that after the court had denied the registration thereof,
Agapino Neri y Chaves abandoned the said land and that later on
some of the children of the first marriage possessed it, thereby
acquiring title and interest therein by virtue of occupation and not
through inheritance. It is not true that this parcel containing
182.6373 hectares is now assessed in the name of some of the
children of the first marriage, for as shown on Tax Declaration No.
9395, Exhibit 11-g, the owners of the property are Agapita Neri de
Chavez y Hermanos. Apparently, the said land is still claimed to be
the property not only of the children of the first marriage but also
of those of the second marriage."
This paragraph is but a corroboration of the finding made by the
Court of Appeals that no property has ever been advanced by the
testator to the children by his first marriage. The large parcel of
land adjoining parcel No. 1 was alleged by the children of the
second marriage to have been advanced by the testator to the
children by his first marriage; but the Court of Appeals belied this
claim. "It is not true," says that Court, " that this parcel containing
182.6373 hectares is now assessed in the names of some of the
children of the first marriage, for as shown on Tax Declaration No.
9395, Exhibit 11-g, the owners of the property are Agapita Neri de
Chaves y Hermanos," that is, the children of both marriages. And
the Court of Appeals added that "apparently, the said land is still
claimed to be the property not only of the children of the first
marriage but alsso of those of the second marriage," which is
another way of stating that the property could not have been
advanced by the testator to the children by the first marriage, for
otherwise the children by the second marriage would not lay a
claim on it.
We conclude, therefore, that according to the findings of fact made
by the court of appeals, the testator left all his property by
universal title to the children by his second marriage, and that
without expressly disinheriting the children by his first marriage,
he left nothing to them or, at least, some of them. this is,
accordingly a case of preterition governed by article 814 of the
Civil Code, which provides that the institution of heirs shall be
annulled and intestate succession should be declared open.
(b) Upon the second question propounded in the motion for
reconsideration, respondents seems to agree that article 814 of th
e Civil Code is the law applicable but, in their discussion as to the
effect of preterition, they confuse article 814 with article 817 and
851 and other articles of the Civil Code. These three articles read:
"ART. 814. The preterition of one or of all of the forced heirs in
the direct line, wether living at the execution of the will or born
after the death of the testator, shall annul the institution of heirs;
but the legacies and betterments shall be valid in so far as they are
not inofficious.
"The preterrition of the widower or widow does not annul the
institution; but the person omitted shall retain all the rights
granted to him by article 834, 835, 836, and 837 of this Code.
"If the forced heirs omitted die before the testator, the institution
shall become operatives."
"ART. 817. Testamentary disposition which diminish the
legitime of the forced heirs shall be reduced on petition of the
same in so far as they are inofficious or excessive."
"ART. 851. Disinheritance made without a statement of the
cause, or for a cause the truth of which, if contested, is not shown
or which is not one of those stated in the four following articles
shall anul the institution of heirs in so far as it is prejudicial to the
disinherited persons; but the legacies, betterments, and other
testamentary dispositions shall be valid in so far as they are not
prejudicial to said legitime."
Article 817 is merely a general rule inapplicable to specific cases
provided by law, such as that of preterition or disinheritance.
Manresa, for instance, starts expounding the meaning of the law
with an illustration. He says that in case of pretention (article
814), the nullity of the institution of heirs is total, whereas in case
of disinheritance (article 851), the nullity is partial, that is, in so far
as the institution affects the le gitime of the disinherited heirs.
"Prete ridos, adquieren derecho a todo; desheredados, sólo les
corresponde un tercio o dos tercios, según el caso." He then
proceeds to comment upon the wisdom of the dis tinction made by
law, giving two views thereon. He first lays the view contrary to
the distinction made by law, then the arguments in support of the
distinction, and lastly a possible defense against said arguments.
And after stating that the Spanish jurisprudence has not as yet de
cided squarely the question, with an allu sion to two resolutions of
the Spanish Administrative Direction, one in favor of article 814
and another evasive, he con cludes that the construction which
may rightly be given to article 814 is that in case of preterition, the
institution of heirs is null in toto whereas in case of disin heritance
the nullity is limited to that portion of the legitime of which the
disin herited heirs have been illegally deprived. He further makes
it clear that in cases of preterition, the property bequeathed by
universal title to the instituted heirs should not be merely reduced
according to article 817, but instead, intestate suc cession should
be opened in connection therewith under article 814, the reason
being that article 814, "como especial en el caso que le motiva, rige
con preferencia al 817." Sanchez Roman is of the same opinion.
Of course, the annulment of the institution of heirs in cases of
preterition does not always carry with it the ineffective ness of the
whole will. Neither Manresa nor Sanchez Roman nor this Court
has ever said so. If, aside from the institution of heirs, there are in
the will provisions leaving to the heirs so instituted or to other
persons some specific properties in the form of legacies or
mejoras, such testamentary provisions shall be effective and the
legacies and mejoras shall be respected in so far as they are not
inofficious or excessive, according to article 814. In the instant
case, however, no legacies or mejoras are provided in the will, the
whole property of the deceased having been left by universal title
to the children of the second marriage. The effect, therefore of
annulling the institution of heirs will be necessarily the opening of
a total intestacy.
Provisions of articles 814 and 851 regarding total or partial nullity
of the institution, would be absolutely meaningless and will never
have any application at all. And the remaining provisions
contained in said article concerning the reduction of in officious
legacies or betterments would be a surplusage because they would
be absorbed by article 817. Thus, instead of construing, we would
be destroying integral provisions of the Civil Code.
The destructive effect of the theory thus advanced is due mainly to
a failure to distinguish institution of heirs from legacies and
betterments, and a general from a special provision. With
reference to article 814, which is the only provision material to the
disposition of this case, it must be observed that the institution of
heirs is therein dealt with as a thing separate and distinct from
legacies or betterment. And they are separate and distinct not only
because they are distinctly and separately treated in said article
but because they are in themselves different. Institution of heirs is
a bequest by universal title of property that is undetermined.
Legacy refers to specific property bequeathed by a particular or
special title. The first is also different from a betterment which
should be made expressly as such (article 828). The only instance
of implied betterment recognized by law is where legacies are
made which cannot be included in the free portion (article 828).
But again an institution of heirs cannot be taken as a legacy.
It is clear, therefore, that article 814 refers to two different things
which are the two different objects of its two dif ferent provisions.
One of these objects cannot be made to merge in the other without
mutilating the whole article with all its multifarious connections
with a great number of provisions spread throughout the Civil
Code on the matter of succession. It should be borne in mind,
further, that although article 814 contains two different
provisions, its spe cial purpose is to establish a specific rule
concerning a specific testamentary provi sion. namely, the
institution of heirs in a case of preterition. Its other provision
regarding the validity of legacies and bet terments if not
inofficious is a mere reiter ation of the general rule contained in
other provisions (articles 815 and 817) and sig nifies merely that
it also applies in cases of preterition. As regards testamentary dis
positions in general, the general rule is that all "testamentary
dispositions which diminish the legitime of the forced heirs shall
be reduced on petition of the same in so far as they are inofficious
or exces sive" (article 817). But this general rule does not apply to
the specific instance of a testamentary disposition containing an
institution of heirs in a case of preterition, which is made the main
and specific sub ject of article 814. In such instance, according to
article 814, the testamentary disposition containing the institution
of heirs should be not only reduced, but an nulled in its entirety
and all the forced heirs, including the omitted ones, are entitled to
inherit in accordance with the law of intestate succession. It is thus
evident that, if, in construing article 814, the institution of heirs
therein dealt with is to be treated as legacies or betterments, the
special object of said article would be destroyed, its specific
purpose completely defeated, and in that wise the special rule
therein established would be rendered nu gatory. And this is
contrary to the most elementary rule of statutory construction. In
construing several provisions of a par ticular statute, such
construction shall be adopted as will give effect to all, and when
general and particular provisions are inconsistent, the latter shall
prevail over the former.
The question herein propounded has been squarely decided by the
Supreme Court of Spain in a case wherein a bequest by universal
title was made with preterition of heirs and the theory was
advanced that the instituted heirs should be treated as legatarios.
It is maintained that the word "heredero" under the Civil Code, is
not synonymous with the term "heir" under the Code of Civil
Procedure, and that the "heir" under the latter Code is no longer
personally liable for the debts of the de ceased as was the
"heredero" under the Civil Code, should his acceptance be pure
and simple, and from all these the conclusion is drawn that the
provisions of article 814 of the Civil Code regarding the total
nullity of the institution of heirs has become obsolete. This
conclusion is erroneous. It confuses form with sub stance. It must
be observed, in this connection, that in construing and applying a
provision of the Civil Code, such meaning of its words and phrases
as has been intended by the framers thereof shall be adopted. If
thus construed it is inconsistent with the provisions of the Code of
Civil Procedure, then it shall be deemed repealed; otherwise it is in
force. Repeals by implication are not favored by the courts and
when there are two acts upon the same subject, effect should be
given to both' if possible.
The word "heir" as used in article 814 of the Civil Code may not
have the meaning that it has under the Code of Civil Pro cedure,
but this in no wise can prevent a bequest from being made by
universal title as is in substance the subject-matter of article 814
of the Civil Code. Again, it may also be true that heirs under the
Code of Civil Procedure may receive the bequest only after
payment of debts left by the deceased and not before as under the
Civil Code, but this may have a bear ing only upon the question as
to when succession becomes effective and can in no way destroy
the fact that succession may still be by universal or special title.
Since a bequest may still be made by uni versal title and with
preterition of forced heirs, its nullity as provided in article 814 still
applies there being nothing inconsist ent with it in the Code of
Civil Procedure. What is important and is the basis for its nullity is
the nature and effect of the bequest and not its possible name nor
the moment of its effectiveness under the Code of Civil Procedure.
Furthermore, there were in the Code of Civil Procedure sections
Nos. 755 and 756 which read:
"Sec. 755. Share of child born after making will.—When a child of
a testator is born after the making of a will, and no provision is
there in made for him, such child shall have the same share in the
estate of the testator as if he had died intestate; and the share of
such child shall be assigned to him as in cases of intestate estates,
unless it is apparent from the will that it was the intention of the
testator that no provision should be made for such child."

"Sec 756. Share of child or issue of child omitted from will.—
When a testator omits to provide in his will for any of his children,
or for issue of a deceased child, and it appears that such omission
was made by mistake, or accident, such child, or the issue of such
child, shall have the same share in the estate of the testator as if he
had died intestate, to be assigned to him as m the case of intestate
estates."
It is these provisions of the Code of Civil Procedure that have
affected substantially articles 814 and 851 of the Civil Code, but
they have been expressly re pealed by Act No. 2141, section 1 of
which reads as follows:
"Sections seven hundred and fifty-five, seven hundred and fifty-six,
seven hundred and fifty-seven, seven hundred and fifty-eight, and
seven hundred and sixty of Act Numbered One hundred and
ninety, entitled 'An Act providing a Code of Procedure in Civil
Actions and Special Proceedings in the Philippine Islands are here
by repealed and such provisions of the Civil Code as may have
been amended or repealed by said sections are hereby restored to
full force and effect."
Among the provisions of the Civil Code which are thus expressly
restored to full force are undoubtedly articles 814 and 851. There
can be no possible doubt, therefore, that those two articles are in
force.
Article 1080 of the Civil Code that is also invoked deserves no
consideration except for the observation that it has no relevancy in
the instant case.
Our attention is directed to the case of Escuin vs. Escuin. We have
never lost sight of the ruling laid down in that case which has been
reiterated in Eleazar vs. Eleazar. In the Escuin case, the deceased
left all his property to his natural father (not a forced heir) and his
wife with total preterition of an acknowledged natural child; and,
in the Eleazar case the deceased left all his property to a friend
with total preterition of his father and wife. Without reconsidering
the correctness of the ruling laid down in these two cases, we will
note that the doctrine stands on facts which are different from the
facts in the present case. There is certainly a difference between a
case of preterition in which the whole property is left to a mere
friend and a case of preterition in which the whole property is left
to one or some forced heirs. If the testamentary disposition be
annulled totally in the first case, the effect would be a total
deprivation of the friend of his share in the inheritance. And this is
contrary to the manifest intention of the testator. It may fairly be
presumed that, under such circumstances, the testator would at
least give his friend the portion of free disposal. In the second case,
the total nullity of the testamentary disposition would have the
effect, not of depriving totally the instituted heir of his share in the
inheritance, but of placing him and the other forced heirs upon the
basis of equality. This is also in consonance with the presumptive
intention of the testator. Preterition, generally speaking, is due
merely to mistake or inadvertence without which the testator may
be presumed to treat alike all his children.
And specially is this true in the instant case where the testator
omitted the children by his first marriage upon the erroneous
belief that he had given them already more shares in his property
than those given to the children by his second marriage. It was,
therefore, the thought of the testator that the children by his first
marriage should not receive less than the children by his second
marriage, and to that effect is the decision of this Court sought to
be reconsidered. Motion for reconsideration is hereby denied.
Viado Non vs Court of Appeals
325 SCRA 652
Facts: During their lifetime, the spouses Julian C. Viado and
Virginia P. Viado owned several pieces of property, among them a
house and lot. Virginia P. Viado died on 20 October 1982. Julian C.
Viado died three years later on 15 November 1985. Surviving
them were their children—Nilo Viado, Leah Viado Jacobs, and
herein petitioners Rebecca Viado, married to Jose Non, and Delia
Viado. Nilo Viado and Leah Viado Jacobs both died on 22 April
1987. Nilo Viado left behind as his own sole heirs herein
respondents—his wife Alicia Viado and their two children Cherri
Viado and Fe Fides Viado.
Petitioners and respondents shared, since 1977, a common
residence at the Isarog property. Soon, however, tension would
appear to have escalated between petitioner Rebecca Viado and
respondent Alicia Viado after the former had asked that the
property be equally divided between the two families to make
room for the growing children. Respondents, forthwith, claimed
absolute ownership over the entire property and demanded that
petitioners vacate the portion occupied by the latter. On 01
February 1988, petitioners, asserting coownership over the
property in question, filed a case for partition before the Quezon
City RTC.
Respondents predicated their claim of absolute ownership over
the subject property on two documents—a deed of donation
executed by the late Julian Viado covering his one-half conjugal
share of the Isarog property in favor of Nilo Viado and a deed of
extrajudicial settlement in which Julian Viado, Leah Viado Jacobs
(through a power of attorney in favor of Nilo Viado) and petitioner
Rebecca Viado waived in favor of Nilo Viado their rights and
interests over their share of the property inherited from Virginia
Viado. Both instruments were executed on 26 August 1983 and
registered on 07 January 1988 by virtue of which Transfer
Certificate of Title No. 42682 was cancelled and new Transfer
Certificate of Title No. 373646 was issued to the heirs of Nilo
Viado.
Petitioners, in their action for partition, attacked the validity of the
foregoing instruments, contending that the late Nilo Viado
employed forgery and undue influence to coerce Julian Viado to
execute the deed of donation. Petitioner Rebecca Viado, in her
particular case, averred that her brother Nilo Viado employed
fraud to procure her signature to the deed of extrajudicial
settlement. She added that the exclusion of her retardate sister,
Delia Viado, in the extrajudicial settlement, resulted in the latter’s
preterition that should warrant its annulment. Finally, petitioners
asseverated that the assailed instruments, although executed on
23 August 1983, were registered only five years later, on 07
January 1988, when the three parties thereto, namely, Julian
Viado, Nilo Viado and Leah Viado Jacobs had already died.
TC: Found for respondents and adjudged Alicia Viado and her
children as being the true owners of the disputed property.
CA: Affirmed the decision of the trial court with modification by
ordering the remand of the records of the case to the court a quo
for further proceedings to determine the value of the property and
the amount respondents should pay to petitioner Delia Viado for
having been preterited in the deed of extrajudicial settlement.
Issue: Whether the exclusion of petitioner Delia Viado, alleged to
be a retardate, from the deed of extrajudicial settlement verily has
had the effect of preterition
Held: When Virginia P. Viado died intestate in 1982, her part of
the conjugal property, the Isarog property in question included,
was transmitted to her heirs—her husband Julian and their
children Nilo Viado, Rebecca Viado, Leah Viado and Delia Viado.
The inheritance, which vested from the moment of death of the
decedent,1 remained under a coownership regime among the
heirs until partition. Every act intended to put an end to indivision
among co-heirs and legatees or devisees would be a partition
although it would purport to be a sale, an exchange, a compromise,
a donation or an extrajudicial settlement.
In debunking the continued existence of a co-ownership among
the parties hereto, respondents rely on the deed of donation and
deed of extrajudicial settlement which consolidated the title solely
to Nilo Viado. Petitioners assail the due execution of the
documents on the grounds heretofore expressed.
The Court pf Appeals, in sustaining the court a quo, has found the
evidence submitted by petitioners to be utterly wanting,
consisting of, by and large, self-serving testimonies. While
asserting that Nilo Viado employed fraud, forgery and undue
influence in procuring the signatures of the parties to the deeds of
donation and of extrajudicial settlement, petitioners are vague,
however, on how and in what manner those supposed vices
occurred. Neither have petitioners shown proof why Julian Viado
should be held incapable of exercising sufficient judgment in
ceding his rights and interest over the property to Nilo Viado. The
asseveration of petitioner Rebecca Viado that she has signed the
deed of extrajudicial settlement on the mistaken belief that the
instrument merely pertained to the administration of the property
is too tenuous to accept. It is also quite difficult to believe that
Rebecca Viado, a teacher by profession, could have misunderstood
the tenor of the assailed document.
The fact alone that the two deeds were registered five years after
the date of their execution did not adversely affect their validity
nor would such circumstance alone be indicative of fraud. The
registration of the documents was a ministerial act5 and merely
created a constructive notice of its contents against all third
persons. Among the parties, the instruments remained completely
valid and binding.
The exclusion of petitioner Delia Viado, alleged to be a
retardate, from the deed of extrajudicial settlement verily has
had the effect of preterition. This kind of preterition, however, in
the absence of proof of fraud and bad faith, does not justify a
collateral attack on Transfer Certificate of Title No. 373646. The
relief, as so correctly pointed out by the Court of Appeals, instead
rests on Article 1104 of the Civil Code to the effect that where the
preterition is not attended by bad faith and fraud, the partition
shall not be rescinded but the preterited heir shall be paid the
value of the share pertaining to her. Again, the appellate court has
thus acted properly in ordering the remand of the case for further
proceedings to make the proper valuation of the Isarog property
and ascertainment of the amount due petitioner Delia Viado.
Fideicommissary Substitution
Perez vs Garchitorena
54 Phil 431
Facts: The amount of P21,428.58 is on deposit in the plaintiff's
name with the association known as La Urbana in Manila, as the
final payment of the liquidated credit of Ana Maria Alcantara,
deceased, whose heiress is said plaintiff, against Andres
Garchitorena, also deceased, represented by his son, the defendant
Mariano Garchitorena.
And as said Mariano Garchitorena held a judgment for P7,872.23
against Joaquin Perez Alcantara, husband of the plaintiff, Carmen
G. de Perez, the sheriff pursuant to the writ of execution issued in
said judgment, levied an attachment on said amount deposited
with La Urbana.
The plaintiff, alleging that said deposit belongs to the
fideicommissary heirs of the decedent Ana Maria Alcantara,
secured a preliminary injunction restraining the execution of said
judgment on the sum so attached. The defendants contend that the
plaintiff is the decedent's universal heiress, and pray for the
dissolution of the injunction.
The court below held that said La Urbana deposit belongs to the
plaintiff's children as fideicommissary heirs of Ana Maria
Alcantara, and granted a final writ of injunction.
Issue:
Held: The clauses of said will relevant to the points in dispute,
between the parties are the ninth, tenth, and eleventh, quoted
below:
"Ninth. Being single and without any forced heir, to show my
gratitude to my niece-in-law, Carmen Garchitorena, of age,
married to my nephew, Joaquin Perez Alcantara, and living in this
same house with me, I institute her as my sole and universal
heiress to the remainder of my estate after the payment of my
debts and legacies, so that upon my death and after probate of this
will, and after the report of the committee on claims and appraisal
has been rendered and approved, she will receive from my
executrix the properties composing my hereditary estate, that she
may enjoy them with God's blessing and my own.
"Tenth. Should my heiress Carmen Garchitorena die, I order that
my whole estate shall pass unimpaired to her surviving children;
and should any of these die, his share shall serve to increase the
portions of his surviving brothers (and sisters) by accretion, in
such wise that my estate shall never pass out of the hands of my
heiress or her children in so far as it is legally possible.
"Eleventh. Should my aforesaid heiress, Carmen Garchitorena, die
after me while her children are still in their minority, I order that
my estate be administered by my executrix, Mrs. Josefa Laplana,
and in her default, by Attorney Ramon Salinas and in his default,
by his son Ramon Salinas; but the direction herein given must not
be considered as an indication of lack of confidence in my nephew
Joaquin Perez Alcantara, whom I relieve from the duties of
administering my estate, because I recognize that his character is
not adapted to management and administration."
The appellants contend that in these clauses the testatrix has
ordered a simple substitution, while the appellee contends that it
is a fideicommissary substitution.
This will certainly provide for a substitution of heirs. and of the
three cases that might give rise to a simple substitution (art. 774,
Civil Code), only the death of the instituted heiress before the
testatrix would in the instant case give place to such substitution,
inasmuch as nothing is said of the waiver of inheritance, or
incapacity to accept it. As a matter of fact, however, clause XI
provides for the administration of the estate in case the heiress
instituted should die after the testatrix and while the substitute
heirs are still under age. And it is evident that, considering the
nature of simple substitution by the heir's death before the
testator, and the fact that by clause XI in connection with clause X,
the substitution is ordered where the heiress instituted dies after
the testatrix, this cannot be a case of simple substitution.
The existence of a substitution in the will is not and cannot be
denied, and since it cannot be a simple substitution in the light of
the considerations above stated, let us now see whether the
instant case is a fideicommissary substitution.
In clause IX, the testatrix institutes the plaintiff herein her sole and
universal heiress, and provides that upon her death (the
testatrix's) and after probate of the will and approval of the report
of the committee on claims and appraisal, said heiress shall
receive and enjoy the whole hereditary estate. Although this clause
provides nothing explicit about substitution, it does not contain
anything in conflict with the idea of fideicommissary substitution.
The fact that the plaintiff was instituted the sole and universal
heiress does not prevent her children from receiving, upon her
death and in conformity with the express desire of the testatrix,
the latter's hereditary estate, as provided in the following (above
quoted) clauses. which cannot be disregarded if we are to give a
correct interpretation of the will. The word sole does not
necessarily exclude the idea of substitute heirs; and taking these
three clauses together, such word means that the plaintiff is the
sole heiress instituted in the first instance.
The disposition contained in clause IX, that said heiress shall
receive and enjoy the estate, is not incompatible with a
fideicommissary substitution (it certainly is incompatible with the
idea of simple substitution, where the heiress instituted does not
receive the inheritance). In fact the enjoyment of the inheritance is
in conformity with the idea of fideicommissary substitution, by
virtue of which the heir instituted receives the inheritance and
enjoys it, although at the same time he preserves it in order to pass
it on to the second heir. On this point the illustrious Manresa, in
his Civil Code says:

"Or, what amounts to the same thing, the fideicommissary
substitution, as held in the Resolutions of June 25, 1895, February
10, 1899, and July 19, 1909, requires three things:
(1) A first heir called primarily to the enjoyment of the estate.
(2) An obligation clearly imposed upon him to preserve and
transmit to a third person the whole or a part of the estate.
(3) A second heir.
"To these requisites, the decision of November 18, 1918 adds
another, namely that the fideicommissarius be entitled to the
estate f rom the time the testator dies, since he is to inherit from
the latter and not from the fiduciary."
It appears from this quotation that the heir instituted or the
fiduciary, as referred to in article 783 of the Civil Code, is entitled
to enjoy the inheritance. And it might here be observed, as a timely
remark, that the fideicommissum arising from a fideicommissary
substitution, which is of Roman origin, is not exactly equivalent to,
nor may it be confused with, the English "trust."
It should also be noted that said clause IX vests in the heiress only
the right to enjoy but not the right to dispose of the estate. It says,
she may enjoy it, but does not say she may dispose of it. This is an
indication of the usufruct inherent in fideicommissary
substitution.
Clause X expressly provides for the substitution. It is true that it
does not say whether the death of the heiress herein referred to is
before or after that of the testatrix; but from the whole context it
appears that in making the provisions contained in this clause X,
the testatrix had in mind a fideicommissary substitution, since she
limits the transmission of her estate to the children of the heiress
by this provision, "in such wise that my estate shall never pass out
of the hands of my heiress or her children in so far as it is legally
possible." Here it clearly appears that the testatrix tried to avoid
the possibility that the substitution might later be legally declared
null for transcending the limits fixed by article 781 of the Civil
Code which prescribes that fideicommissary substitutions shall be
valid "provided they do not go beyond the second degree."
Another clear and outstanding indication of fideicommissary
substitution in clause X is the provision that the whole estate shall
pass unimpaired to the heiress's children, that is to say the heiress
is required to preserve the whole estate, without diminution, in
order to pass it on in due time to the fideicommissary heirs. This
provision complies with another of the requisites of
fideicommissary substitution according to our quotation from
Manresa inserted above.
Lastly, clause XI more clearly indicates the idea of fideicommissary
substitution, when a provision is therein made in the event the
heiress should die after the testatrix. That is, said clause
anticipates the case where the instituted heiress should die after
the testatrix and after receiving and enjoying the inheritance.
The foregoing leads us to the conclusion that all the requisites of a
fideicommissary substitution, according to the quotation from
Manresa above inserted, are present in the case of substitution
now under consideration, to wit:
(1) A first heir primarily called to the enjoyment of the estate. In
this case the plaintiff was instituted an heiress, called to the
enjoyment of the estate, according to clause IX of the will.
(2) An obligation clearly imposed upon the heir to preserve and
transmit to a third person the whole or a part of the estate. Such
an obligation is imposed in clause X which provides that the
"whole estate shall pass unimpaired to her (heiress's) surviving
children;" thus, instead of leaving the heiress at liberty to dispose
of the estate by will, or of leaving the law to take its course in case
she dies intestate, said clause not only disposes of the estate in f
avor of the heiress instituted, but also provides for the disposition
thereof in case she should die after the testatrix.
(3) A second heir. Such are the children of the heiress instituted,
who are referred to as such second heirs both in clause X and in
clause XI
Finally, the requisite added by the decision of November 18, 1918,
to wit, that the fideicommissarius or second heir should be
entitled to the estate from the time of the testator's death, which in
the instant case, is, rather than a requisite, a necessary
consequence derived from the nature of the fideicommissary
substitution, in which the second heir does not inherit from the
heir first instituted, but from the testator.
By virtue of this consequence, the inheritance in question does not
belong to the heiress instituted, the plaintiff herein, as her
absolute property, but to her children, from the moment of the
death of the testatrix, Ana Maria Alcantara.
Therefore, said inheritance, of which the amount referred to at the
beginning, which is on deposit with the association known as La
Urbana in the plaintiff's name, is a part, does not belong to her nor
can it be subject to the execution of the judgment against Joaquin
Perez, who is not one of the fideicommissary heirs.
Rabadilla vs CA
334 SCRA 522
Facts: In a Codicil appended to the Last Will and Testament of
testatrix Aleja Belleza, Dr. Jorge Rabadilla, predecessor-ininterest
of the herein petitioner, Johnny S. Rabadilla, was instituted as a
devisee of 511,855 square meters of that parcel of land of the
Bacolod Cadastre. The said Codicil, which was duly probated and
admitted in Special Proceedings contained the following
provisions:
“FIRST
I give, leave and bequeath the following property owned by me to
Dr. Jorge Rabadilla resident of 141 P. Villanueva, Pasay City: Lot
No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate
of Title No. RT-4002 (10942), which is registered in my name
according to the records of the Register of Deeds of Negros
Occidental.
(b) That should Jorge Rabadilla die ahead of me, the
aforementioned property and the rights which I shall set forth
hereinbelow, shall be inherited and acknowledged by the children
and spouse of Jorge Rabadilla.
FOURTH
(a) It is also my command, in this my addition (Codicil), that
should I die and Jorge Rabadilla shall have already received the
ownership of the said Lot No. 1392 of the Bacolod Cadastre,
covered by Transfer Certificate of Title No. RT-4002 (10942), and
also at the time that the lease of Balbinito G. Guanzon of the said
lot shall expire, Jorge Rabadilla shall have the obligation until he
dies, every year to give to Maria Marlina Coscolluela y Belleza,
Seventy (75) (sic) piculs of Export sugar and Twenty Five (25)
piculs of Domestic sugar, until the said Maria Marlina Coscolluela y
Belleza dies.
FIFTH
(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot
No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate
of Title No. RT-4002 (10492), shall have the obligation to still give
yearly, the sugar as specified in the Fourth paragraph of his
testament, to Maria Marlina Coscolluela y Belleza on the month of
December of each year.
SIXTH
I command, in this my addition (Codicil) that the Lot No. 1392, in
the event that the one to whom I have left and bequeathed, and his
heir shall later sell, lease, mortgage this said Lot, the buyer, lessee,
mortgagee, shall have also the obligation to respect and deliver
yearly ONE HUNDRED (100) piculs of sugar to Maria Marlina
Coscolluela y Belleza, on each month of December, SEVENTY FIVE
(75) piculs of Export and TWENTY FIVE (25) piculs of Domestic,
until Maria Marlina shall die, lastly should the buyer, lessee or the
mortgagee of this lot, not have respected my command in this my
addition (Codicil), Maria Marlina Coscolluela y Belleza, shall
immediately seize this Lot No. 1392 from my heir and the latter’s
heirs, and shall turn it over to my near desendants, (sic) and the
latter shall then have the obligation to give the ONE HUNDRED
(100) piculs of sugar until Maria Marlina shall die. I further
command in this my addition (Codicil) that my heir and his heirs
of this Lot No. 1392, that they will obey and follow that should
they decide to sell, lease, mortgage, they cannot negotiate with
others than my near descendants and my sister.”
Pursuant to the same Codicil, Lot No. 1392 was transferred to the
deceased, Dr. Jorge Rabadilla, and TCT thereto issued in his name.
Dr. Jorge Rabadilla died in 1983 and was survived by his wife
Rufina and children Johnny (petitioner), Aurora, Ofelia and
Zenaida, all surnamed Rabadilla.
On August 21, 1989, Maria Marlena Coscolluela y Belleza
Villacarlos brought a complaint against the above-mentioned heirs
of Dr. Jorge Rabadilla, to enforce the provisions of subject Codicil.
Issue:
Held: The petitioner theorizes further that there can be no valid
substitution for the reason that the substituted heirs are not
definite, as the substituted heirs are merely referred to as “near
descendants” without a definite identity or reference as to who are
the “near descendants” and therefore, under Articles 8438 and
8459 of the New Civil Code, the substitution should be deemed as
not written.
The contentions of petitioner are untenable. Contrary to his
supposition that the Court of Appeals deviated from the issue
posed before it, which was the propriety of the dismissal of the
complaint on the ground of prematurity of cause of action, there
was no such deviation. The Court of Appeals found that the private
respondent had a cause of action against the petitioner. The
disquisition made on modal institution was, precisely, to stress
that the private respondent had a legally demandable right against
the petitioner pursuant to subject Codicil; on which issue the Court
of Appeals ruled in accordance with law.
It is a general rule under the law on succession that successional
rights are transmitted from the moment of death of the
decedent10 and compulsory heirs are called to succeed by
operation of law. The legitimate children and descendants, in
relation to their legitimate parents, and the widow or widower,
are compulsory heirs.11 Thus, the petitioner, his mother and
sisters, as compulsory heirs of the instituted heir, Dr. Jorge
Rabadilla, succeeded the latter by operation of law, without need
of further proceedings, and the successional rights were
transmitted to them from the moment of death of the decedent, Dr.
Jorge Rabadilla.
Under Article 776 of the New Civil Code, inheritance includes all
the property, rights and obligations of a person, not extinguished
by his death. Conformably, whatever rights Dr. Jorge Rabadilla had
by virtue of subject Codicil were transmitted to his forced heirs, at
the time of his death. And since obligations not extinguished by
death also form part of the estate of the decedent; corollarily, the
obligations imposed by the Codicil on the deceased Dr. Jorge
Rabadilla, were likewise transmitted to his compulsory heirs upon
his death.
In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to
Dr. Jorge Rabadilla, subject to the condition that the usufruct
thereof would be delivered to the herein private respondent every
year. Upon the death of Dr. Jorge Rabadilla, his compulsory heirs
succeeded to his rights and title over the said property, and they
also assumed his (decedent’s) obligation to deliver the fruits of the
lot involved to herein private respondent. Such obligation of the
instituted heir reciprocally corresponds to the right of private
respondent over the usufruct, the fulfillment or performance of
which is now being demanded by the latter through the institution
of the case at bar. Therefore, private respondent has a cause of
action against petitioner and the trial court erred in dismissing the
complaint below.
Petitioner also theorizes that Article 882 of the New Civil Code on
modal institutions is not applicable because what the testatrix
intended was a substitution—Dr. Jorge Rabadilla was to be
substituted by the testatrix’s near descendants should there be
noncompliance with the obligation to deliver the piculs of sugar to
private respondent.
Again, the contention is without merit. Substitution is the
designation by the testator of a person or persons to take the place
of the heir or heirs first instituted. Under substitutions in general,
the testator may either (1) provide for the designation of another
heir to whom the property shall pass in case the original heir
should die before him/her, renounce the inheritance or be
incapacitated to inherit, as in a simple substitution, or (2) leave
his/her property to one person with the express charge that it be
transmitted subsequently to another or others, as in a
fideicommissary substitution. The Codicil sued upon contemplates
neither of the two.
In simple substitutions, the second heir takes the inheritance in
default of the first heir by reason of incapacity, pre-decease or
renunciation.14 In the case under consideration, the provisions of
subject Codicil do not provide that should Dr. Jorge Rabadilla
default due to predecease, incapacity or renunciation, the
testatrix’s near descendants would substitute him. What the
Codicil provides is that, should Dr. Jorge Rabadilla or his heirs not
fulfill the conditions imposed in the Codicil, the property referred
to shall be seized and turned over to the testatrix’s near
descendants.
Neither is there a fideicommissary substitution here and on this
point, petitioner is correct. In a fideicommissary substitution, the
first heir is strictly mandated to preserve the property and to
transmit the same later to the second heir.15 In the case under
consideration, the instituted heir is in fact allowed under the
Codicil to alienate the property provided the negotiation is with
the near descendants or the sister of the testa-trix. Thus, a very
important element of a fideicommissary substitution is lacking;
the obligation clearly imposing upon the first heir the preservation
of the property and its transmission to the second heir. “Without
this obligation to preserve clearly imposed by the testator in his
will, there is no fideicommissary substitution.”16 Also, the near
descendants’ right to inherit from the testatrix is not definite. The
property will only pass to them should Dr. Jorge Rabadilla or his
heirs not fulfill the obligation to deliver part of the usufruct to
private respondent.
Another important element of a fideicommissary substitution is
also missing here. Under Article 863, the second heir or the
fideicommissary to whom the property is transmitted must not be
beyond one degree from the first heir or the fiduciary. A
fideicommissary substitution is therefore, void if the first heir is
not related by first degree to the second heir.17 In the case under
scrutiny, the near descendants are not at all related to the
instituted heir, Dr. Jorge Rabadilla.
Conditional Institution
Morente vs Dela Santa
9 Phil 387
Facts: The will of Consuelo Morente contains the following
clauses:
"1. I hereby order that all real estate which may belong to me shall
pass to my husband, Gumersindo de la Santa.
"2. That my said husband shall not leave my brothers after my
death, and that he shall not marry anyone; should my said
husband have children by anyone, he shall not convey any portion
of the property left by me, except the one-third part thereof and
the two remaining thirds shall be and remain for my brother
Vicente or his children should he have any.
"3. After my death I direct my husband to dwell in the camarin in
which the bakery is located, which is one of the properties
belonging to me."
Her husband, Gumersindo de la Santa, married again within four
months of the death of the testatrix. Elena Morente, a sister of the
deceased, filed a petition in the proceeding relating to the probate
of the will of Consuelo Morente pending in the CFI in which she
alleged the second mar riage of Gumersindo de la Santa and asked
that the legacy to him above mentioned be annulled. Objection was
made in the court below by the husband to the procedure followed
by the petitioner.
Issue: Did the testatrix intend to impose a condition upon the
absolute gift which is contained in the first clauses of the will?
Held: Article 790 of the Civil Code provides that testamentary
provisions may be made conditional and article 793 provides that
a prohibition against another marriage may in certain cases be
validly imposed upon the widow or widower.
It is to be observed that by the second clause she directs that her
husband shall not leave her sisters. It is provided in the third
clause that he must continue to live in a certain building. It is
provided in the second clause that he shall not marry again. To no
one of these orders is attached the condition that if he fails to
comply with them he shall lose the legacy given to him by the first
clause of the will. It is nowhere expressly said that if he does leave
the testatrix's sisters, or does not continue to dwell in the building
mentioned in the will he shall forfeit the property given him in the
first clause; nor is it anywhere expressly said that if he marries
again he shall incur such a loss. But it is expressly provided that if
one event does happen the disposition of the property contained
in the first clause of the will shall be changed. It is said that if he
has children by anyone, two- thirds of that property shall pass to
Vicente, the brother of the testatrix.
We are bound to construe the will with reference to all the clauses
contained therein, and with reference to such surrounding
circumstances as duly appear in the case, and after such
consideration we cannot say that it was the intention of the
testatrix that if her husband married again he should forfeit the
legacy above mentioned. In other words, there being no express
condition attached to that legacy in reference to the second
marriage, we cannot say that any condition can be implied from
the context of the will. In the case of Oliiong Joe-Soy vs. Jaime Vano
we held that the legacy contained in the will therein mentioned
was not conditional. It is true that that case arose under article
797 of the Civil Code, which perhaps is not strictly applicable to
this case, but we think that it may be argued from what is said in
article 797 that, in order to make a testamentary provision
conditional, such condition must fairly appear from the language
used in the will.
Compulsory Heirs/Legitimes
Rosales vs Rosales
148 SCRA 69
Francisco vs Alfonso
GR No. 138774
March 8, 2001
Tumbokun vs Magtanum
GR No. 153736
August 12, 2010
Reserva Troncal
Nieva vs Alcala
41 Phil 915
Florentino vs Florentino
40 Phil 480 Sayson vs CA
205 SCRA 321
Solivio vs CA
182 SCRA 119 Bagunu vs Piedad
347 SCRA 571
Sumaya vs IAC
201 SCRA 178 Diaz vs IAC
182 SCRA 427
De Papa vs Camacho
144 SCRA 281 Dela Puerta vs CA
181 SCRA 861
Mendoza vs Policarpio
GR No. 176422 Pascual vs Bautista
March 20, 2013 207 SCRA 561

Disinheritance Manuel vs Ferrer

247 SCRA 476
Pecson vs Mediavillo
28 Phil 81 Verdad vs CA
256 SCRA 593
Ching vs Rodriguez
GR No. 192828 Cacho vs Udan
November 28, 2011 13 SCRA 693

Intestate Succession Sarita vs Candia

23 Phil 443
Dorotheo vs CA
320 SCRA 12 Abellana de Bacayo vs Borromeo
14 SCRA 986
Facts:
Bicomong vs Almanza
Issue: 80 SCRA 421

Held: City of Manila vs Archbishop

36 Phil 815
Heirs of Uriarte vs CA
284 SCRA 511 Torres vs Lopez
49 Phil 504

Nepomuceno vs IAC
139 SCRA 206

Pastor vs CA
122 SCRA 885

Sanchez vs CA
279 SCRA 647

Nazareno vs CA
343 SCRA 637

Mendoza vs CA
199 SCRA 778

Aznar Brothers Realty vs CA

327 SCRA 359

Ralla vs Untalan
172 SCRA 858

Balanay vs Martinez
64 SCRA 452

Plan vs IAC
135 SCRA 270