G.R. No.
191031, October 05, 2015
DOLORES L. HACBANG AND BERNARDO J. HACBANG, Petitioners, v. ATTY.
BASILIO H. ALO, Respondent.
This petition for review on certiorari seeks to reverse the 13 October 2009
Decision and the 21 January 2010 resolution of the Court of Appeals (CA) in
CA-G.R CV No. 83137.1 The CA affirmed the Quezon City Regional Trial
Court's (RTC) dismissal of the petitioners' complaint in Civil Case No. Q 99-
366602 for lack of cause of action.
ANTECEDENTS
On 3 April 1937, Bishop Sofronio Hacbang (Bishop Sofronio) died leaving
several properties behind. Among these was Lot No. 8-A of subdivision Plan
Psd-6227 located at España Street, San Juan, Rizal,3 covered by Transfer
Certificate of Title (TCT) No. (19896) 227644 (the subject lot).
Bishop Sofronio was survived by his parents, Basilio and Maria Hacbang, and
his siblings: Perfecto Hacbang, Joaquin Hacbang, Lucia Teresita Hacbang,
and Dolores Hacbang Alo. Petitioner Dolores L. Hacbang is the grandchild of
Perfecto while petitioner Bernardo Hacbang (Bernardo) is a son of Joaquin.
The respondent Basilio Alo is the son of Dolores.
Bishop Sofronio left a will denominated as Ultima Voluntad y Testamento.
He left one-half of his properties to his parents and devised the other half -
including the subject lot - to his sister Dolores. The pertinent portions of his
will read:
FOURTH: By these presents I give, name, declare and institute as heirs my
parents BASILIO HACBANG and MARIA GABORNY DE HACBANG of one-half
of all my properties, whether real, personal or mixed, in whatever place they
may be found, whether they were acquired before or after the execution of
this testament, including all the properties that at the time of my death I may
have the power to dispose of by will, and which properties consist of the
following:
Fifty (50) percent of the shares of stock that I own in the "SAMAR
NAVIGATION CO. INC."
A parcel of land with its camarin situated in the Municipality of Carigara,
Province of Leyte.
A parcel of land in the Barrio of Pinamopuan, of the Municipality of
Capoocan, Province of Leyte.
A parcel of land with house and planted to coconuts in the Barrio of
Sorsogon, Municipality of Sta. Margarita, Province of Samar.
FIFTH: The other remaining half of my properties wherever they may be
located, by these presents I give, cede and hand over to my sister Dolores
Hacbang, which properties are more particularly described as follows:
Fifty (50) percent of my stockholdings in the "SAMAR NAVIGATION CO.
INC."
A piece of land with one house where the Botica San Antonio is located, in
the Municipality of Calbayog, Province of Samar.
A piece of land with house in Acedillo St., Municipality of Calbayog, Province
of Samar.
A piece of land with 1 camarin in the barrio of Sorsogon, Municipality of Sta.
Margarita, Province of Samar.
Six (6) Parcels of land located in "NEW MANILA," Municipality of San Juan,
Province of Rizal, in 7th St., described as follows: Block 7, Lots 16, 18, 20 and
22, and in 3rd Street, Block 3, Lots 4 and 6.
A piece of land situated in Espana St., Municipality of San Juan del Monte of
the Province of Rizal, marked as Lot 8-A, Block 17, of 1,403 square meters in
area.4chanrobleslaw
On 16 April 1937, a petition for the probate of Bishop Sofronio's will and the
settlement of his estate was filed before the then Court of First Instance (CFI)
of Manila. The petition was docketed as SP. PROC. No. 51199.
On 21 May 1937, the CFI admitted Bishop Sofronio's will to probate.5
The records are bare with respect to what happened next. They show,
however, that the CFI ordered the proceedings to be archived on 2
November 1957.
On 24 September 1971, the Register of Deeds of Quezon City appears to have
issued TCT No. 169342 over the subject lot in the name of respondent Basilio
H. Alo. TCT No. 169342 cancelled TCT No. 117322/T-500. However, this Court
cannot determine the circumstances surrounding the issuance of TCT No.
169342 or the relationship between TCT No. 117322/T-500 and TCT No.
(19896) 227644 due to the inadequacy of the documents on record.
On 17 March 1975, Dolores Hacbang Alo moved to revive the settlement
proceedings because the CFI had not yet completed adjudicating the
properties.
On 23 May 1975, the CFI denied the motion for revival because the order to
archive "had long become final and executory."6
On 1 February 1999, petitioners Dolores L. Hacbang and Bernardo filed a
petition to cancel TCT No. 169342 on the ground that it was fraudulently
secured. In support of their allegations, they submitted the 5 March 1997
Investigation Report of Land Registration Authority (LRA) Investigator
Rodrigo I. Del Rosario. The report concluded that TCT No. 117322 was of
"doubtful authenticity" and was neither derived from TCT No. 117322 nor
issued by the Registry of Deeds of Quezon City on 24 September 1971 at 2:30
PM.
In his Answer dated 18 August 1999, Basilio denied all allegations of
irregularity and wrongdoing. He also moved to dismiss the petition because
the petitioners were neither heirs nor devisees of Bishop Sofronio and had
no legal interest in the subject lot.
On 7 January 2003, the RTC dismissed the petition because the petitioners
had no right to prosecute the case on the subject lot. The RTC noted that
Bishop Sofronio's will had already been admitted into probate in 1937; thus,
the intrinsic validity of the will is no longer in question. Though the
settlement proceedings were archived, Bishop Sofronio already designated
his heirs: Bishop Sofronio's parents were compulsory heirs entitled to half of
his estate while the respondent's mother, Dolores Hacbang Alo, was devised
the remaining half (the free portion). Thus, the petitioners, who are neither
compulsory nor testamentary heirs, are not real parties in interest.
The petitioners moved for reconsideration which the RTC denied on 19
August 2003.
The petitioners appealed to the CA, arguing that: (1) Bishop Sofronio's will
did not validly transfer the subject property to Dolores Hacbang Alo; (2) the
probate of the will is not conclusive as to the validity of its intrinsic
provisions; and (3) only a final decree of distribution of the estate vests title
on the properties from the estate on the distributees.7 The appeal was
docketed as CA-G.R CV No. 83137.
They further argued that the distribution of the estate should be governed
by intestate succession because: (1) the subject property was not
adjudicated; and (2) the settlement proceedings were archived and
dismissed. Thus, all the properties passed on to and became part of the
estate of Bishop Sofronio's parents. The petitioners concluded that they had
legal interest in the subject lot as representatives of their ascendants, the
other children of Bishop Sofronio's parents.
In his appeal brief, the respondent insisted that the petitioners do not have
a clear legal right to maintain the suit because: (1) as collateral relatives, they
cannot invoke the right of representation to the estate of Bishop Sofronio;
and (2) they are not real parties in interest and have no right of action over
the subject lot.
On 13 October 2009, the CA affirmed the RTC's order of dismissal. The CA
held that the admission of Bishop Sofronio's will to probate precluded
intestate succession unless the will was intrinsically invalid or failed to
completely dispose of his estate. Contrary to the petitioners' contention, the
settlement proceedings were not dismissed but archived; the will did not
lose its validity merely because the proceedings were archived. Undoubtedly,
Bishop Sofronio did not die intestate.
The CA denied the petitioners' claim to a right of inheritance by
representation. It held that the presence of Bishop Sofronio's parents during
his death excluded his brothers and sisters from being compulsory heirs; the
petitioners cannot represent those who are hot entitled to succeed.
Considering that they are neither compulsory nor testamentary heirs,
petitioners have no legal interest in the subject property.
The petitioners moved for reconsideration which the CA denied on 21
January 2010. The denial paved the way for the petitioners to file the present
petition for review on certiorari.
THE PETITION
The petitioners argue: (1) that the CA erred when it failed to rule on the
validity of TCT No. 169342; (2) that the probate proceedings of the estate
was dismissed, not archived; and (3) that the CA erred when it used Bishop
Sofronio's will as basis to declare that they are not real parties in interest.
In his Comment, the respondent maintained that the petitioners had no right
over the property and moved to dismiss the present petition.
OUR RULING
At the outset, this Court observes that the parties and even the lower courts
erroneously applied the provisions of the present Civil Code to the will and
the estate of Bishop Sofronio. The law in force at the time of the decedent's
death determines the applicable law over the settlement of his estate.8
Bishop Sofronio died in 1937 before the enactment of the Civil Code in 1949.
Therefore, the correct applicable laws to the settlement of his estate are the
1889 Spanish Civil Code and the 1901 Code of Civil Procedure.
In any case, under both the Spanish Code and our Civil Code, successional
rights are vested at the precise moment of the death of the decedent.
Section 657 of the Spanish code provides:
Art. 657. Los derechos a la sucesion de una persona se transmiten desde el
momento de su muerte.9
The inheritance vests immediately upon the decedent's death without a
moment's interruption. This provision was later on translated and adopted
as Article 777 of our Civil Code.10
As a consequence of this principle, ownership over the inheritance passes to
the heirs at the precise moment of death - not at the time the heirs are
declared, nor at the time of the partition, nor at the distribution of the
properties. There is no interruption between the end of the decedent's
ownership and the start of the heir/legatee/devisee's ownership.
For intestate heirs, this means that they are immediately entitled to their
hereditary shares in the estate even though they may not be entitled to any
particular properties yet. For legatees and devisees granted specific
properties, this means that they acquire ownership over the legacies and
devises at that immediate moment without prejudice to the legitimes of
compulsory heirs.
Undoubtedly, Bishop Sofronio did not die intestate. He left a will that was
probated in 1937. He left half of his properties to his parents and the
remaining half to his sister Dolores Hacbang Alo. The admission of his will
to probate is conclusive with respect to its due execution and extrinsic
validity.11
Unfortunately, the settlement proceedings were never concluded; the case
was archived without any pronouncement as to the intrinsic validity of the
will or an adjudication of the properties. Because of this, the petitioners posit
that intestate succession should govern. They maintain that the entire
inheritance should have gone to Bishop Sofronio's parents, the petitioners'
ascendants. Thus, they claim to have a legal interest in the subject lot as
representatives of the other children of Bishop Sofronio's parents.
We do not find the petitioners' argument meritorious.
Our jurisdiction has always respected a decedent's freedom to dispose of his
estate, whether under the Spanish Civil Code or under the present Civil Code.
Article 763 of the Spanish Code provides:
Art. 763. El que no tuviere herederos forzosos puede disponer por
testamento de todos sus bienes o de parte de ellos en favor de cualquiera
persona que tenga capacidad para adquirirlos. El que tuviere herederos
forzosos solo podra disponer de sus bienes en la forma y con las limitaciones
que se establecen en la section quinta de este capitulo.
This provision states that a person without compulsory heirs may dispose of
his estate, either in part or in its entirety, in favor of anyone capacitated to
succeed him; if the testator has compulsory heirs, he can dispose of his
property provided he does not impair their legitimes. This provision was later
translated and adopted as Article 842 of our Civil Code.12
Our jurisdiction accords great respect to the testator's freedom of
disposition. Hence, testate succession has always been preferred over
intestacy.13 As much as possible, a testator's will is treated and interpreted
in a way that would render all of its provisions operative.14 Hence, there is
no basis to apply the provisions on intestacy when testate succession
evidently applies.
Even though the CFI archived the settlement proceedings, there is no
indication that it declared any of the dispositions in the will invalid. The
records are understandably bare considering the probate proceedings were
initiated as early as 1937. Nonetheless, we find no reason to doubt the
intrinsic validity of the will.
Bishop Sofronio was free to dispose of his estate without prejudice to the
legitimes of his compulsory heirs. Bishop Sofronio's only compulsory heirs
were his parents.15 Their legitime was one-half of Bishop Sofronio's estate.16
Considering that Bishop Sofronio gave his parents half of his estate, then he
was free to dispose of the free portion of his estate in favor of his sister,
Dolores Hacbang Alo. Thus, his will was intrinsically valid.
The CFPs failure to adjudicate the specific properties is irrelevant because
Bishop Sofronio did not just name his heirs; he also identified the specific
properties forming part of their inheritance. The dispositions in the will
rendered court adjudication and distribution unnecessary.
The petitioners' contention that only a final decree of distribution of the
estate vests title to the land of the estate in the distributees is also incorrect.
Again, ownership over the inheritance vests upon the heirs, legatees, and
devisees immediately upon the death of the decedent.
At the precise moment of death, the heirs become owners of the estate pro-
indiviso. They become absolute owners of their undivided aliquot share but
with respect to the individual properties of the estate, they become co-
owners. This co-ownership remains until partition and distribution. Until
then, the individual heirs cannot claim any rights over a specific property
from the estate. This is because the heirs do not know which properties will
be adjudicated to them yet. Hence, there is a need for a partition before title
over particular properties vest in the distributee-heirs.
However, heirs, legatees, and devisees bequeathed specific properties do
not require Court adjudication to identify which particular properties
become theirs; the testator had already identified these. From the very
moment of the testator's death, title over these particular properties vests
on the heir, legatee, or devisee.
On 3 April 1937, title over the subject lot passed on to the respondent's
mother, Dolores Hacbang Alo, at the exact moment of her brother's death.
From that moment on, she was free to dispose of the subject lot as a
consequence of her ownership.
On the other hand, Bishop Sofronio's parents, Basilio and Maria Gaborny
Hacbang, never acquired the title over the subject lot. Thus, it never became
part of their estate. Clearly, the petitioners - who claim to represent the
children of Basilio and Maria Gaborny in the spouses' estate -have no legal
right or interest over the subject lot.
Every ordinary civil action must be based on a cause of action - an act or
omission that violates the rights of the plaintiff.17 A cause of action requires:
(1) a legal right in favor of the plaintiff;
(2) a correlative duty of the defendant to respect the plaintiffs right; and
(3) an act or omission of the defendant in violation of the plaintiffs right.18
Every action must also be prosecuted or defended in the name of the real
party in interest: the party who stands to be benefited or injured by the
judgment.19 These fundamental requirements are not merely technical
matters; they go into the very substance of every suit.
The petitioners came to the courts praying for the annulment of the
respondent's title yet they failed to show that they are entitled to even ask
for such relief. They have no right over the subject lot and the respondent
has no legal obligation to them with respect to the subject lot. Even if we
assume that the respondent fraudulently or irregularly secured his certificate
of title, the bottom-line is that the petitioners have no legal standing to sue
for the cancellation of this title. This right only belongs to the rightful owner
of the subject lot.
Judicial power is the duty of the courts to settle actual controversies
involving rights which are legally demandable and enforceable.20 Courts
settle real legal disputes involving the rights and obligations between
parties. If either of the parties is not the real party in interest, the Court
cannot grant the reliefs prayed for because that party has no legal right or
duty with respect to his opponent. Further litigation becomes an academic
exercise in legal theory that eventually settles nothing - a waste of time that
could have been spent resolving actual justiciable controversies.
WHEREFORE, premises considered, the petition is DENIED for lack of merit.
Costs against the petitioners. SO ORDERED.
G.R. No. 168970 January 15, 2010
CELESTINO BALUS, Petitioner, vs. SATURNINO BALUS and LEONARDA
BALUS VDA. DE CALUNOD, Respondents.
Assailed in the present petition for review on certiorari under Rule 45 of the
Rules of Court is the Decision1 of the Court of Appeals (CA) dated May 31,
2005 in CA-G.R. CV No. 58041 which set aside the February 7, 1997 Decision
of the Regional Trial Court (RTC) of Lanao del Norte, Branch 4 in Civil Case
No. 3263.
The facts of the case are as follows:
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.
On January 3, 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 No. P-439(788) and more particularly described as follows:
A parcel of land with all the improvements thereon, containing an area of
3.0740 hectares, more or less, situated in the Barrio of Lagundang, Bunawan,
Iligan City, and bounded as follows: Bounded on the NE., along line 1-2, by
Lot 5122, Csd-292; along line 2-12, by Dodiongan River; along line 12-13 by
Lot 4649, Csd-292; and along line 12-1, by Lot 4661, Csd-292. x x x 2
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
Sale3 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, or on January 25, 1984, the sheriff executed a Definite Deed of Sale4
in the Bank's favor. Thereafter, a new title was issued in the name of the
Bank.
On October 10, 1989, herein petitioner and respondents executed an
Extrajudicial Settlement of Estate5 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. On October 12,
1992, a Deed of Sale of Registered Land6 was executed by the Bank in favor
of respondents. Subsequently, Transfer Certificate of Title (TCT) No. T-
39,484(a.f.)7 was issued in the name of respondents. Meanwhile, petitioner
continued possession of the subject lot.
On June 27, 1995, 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. Respondents claimed that they had exhausted all remedies for the
amicable settlement of the case, but to no avail.
On February 7, 1997, the RTC rendered a Decision9 disposing as follows:
WHEREFORE, judgment is hereby rendered, ordering the plaintiffs to execute
a Deed of Sale in favor of the defendant, the one-third share of the property
in question, presently possessed by him, and described in the deed of
partition, as follows:
A one-third portion of Transfer Certificate of Title No. T-39,484 (a.f.),
formerly Original Certificate of Title No. P-788, now in the name of Saturnino
Balus and Leonarda B. Vda. de Calunod, situated at Lagundang, Bunawan,
Iligan City, bounded on the North by Lot 5122; East by shares of Saturnino
Balus and Leonarda Balus-Calunod; South by Lot 4649, Dodiongan River;
West by Lot 4661, consisting of 10,246 square meters, including
improvements thereon.
and dismissing all other claims of the parties.
The amount of ₱6,733.33 consigned by the defendant with the Clerk of Court
is hereby ordered delivered to the plaintiffs, as purchase price of the one-
third portion of the land in question.
Plaintiffs are ordered to pay the costs.
SO ORDERED.10
The RTC held that the right of petitioner to purchase from the respondents
his share in the disputed property was recognized by the provisions of the
Extrajudicial Settlement of Estate, which the parties had executed before the
respondents bought the subject lot from the Bank.
Aggrieved by the Decision of the RTC, herein respondents filed an appeal
with the CA.
On May 31, 2005, the CA promulgated the presently assailed Decision,
reversing and setting aside the Decision of the RTC and ordering petitioner
to immediately surrender possession of the subject property to the
respondents. The CA ruled that when petitioner and respondents did not
redeem the subject property within the redemption period and allowed the
consolidation of ownership and the issuance of a new title in the name of
the Bank, their co-ownership was extinguished.
Hence, the instant petition raising a sole issue, to wit:
WHETHER OR NOT CO-OWNERSHIP AMONG THE PETITIONER AND THE
RESPONDENTS OVER THE PROPERTY PERSISTED/CONTINUED TO EXIST
(EVEN AFTER THE TRANSFER OF TITLE TO THE BANK) BY VIRTUE OF THE
PARTIES' AGREEMENT PRIOR TO THE REPURCHASE THEREOF BY THE
RESPONDENTS; THUS, WARRANTING THE PETITIONER'S ACT OF
ENFORCING THE AGREEMENT BY REIMBURSING THE RESPONDENTS OF HIS
(PETITIONER'S) JUST SHARE OF THE REPURCHASE PRICE.11
The main issue raised by petitioner is whether co-ownership by him and
respondents over the subject property persisted even after the lot was
purchased by the Bank and title thereto transferred to its name, and even
after it was eventually bought back by the respondents from the Bank.
Petitioner insists that despite respondents' full knowledge of the fact that
the title over the disputed property was already in the name of the Bank,
they still proceeded to execute the subject Extrajudicial Settlement, having
in mind the intention of purchasing back the property together with
petitioner and of continuing their co-ownership thereof.
Petitioner posits that the subject Extrajudicial Settlement is, in and by itself,
a contract between him and respondents, because it contains a provision
whereby the parties agreed to continue their co-ownership of the subject
property by "redeeming" or "repurchasing" the same from the Bank. This
agreement, petitioner contends, is the law between the parties and, as such,
binds the respondents. As a result, petitioner asserts that respondents' act
of buying the disputed property from the Bank without notifying him inures
to his benefit as to give him the right to claim his rightful portion of the
property, comprising 1/3 thereof, by reimbursing respondents the equivalent
1/3 of the sum they paid to the Bank.
The Court is not persuaded.
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, 1996.12 Evidence shows that a Definite Deed of Sale13 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.14 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.15
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.
Petitioner and respondents, therefore, were wrong in assuming that they
became co-owners of the subject lot. Thus, any issue arising from the
supposed right of petitioner as co-owner of the contested parcel of land is
negated by the fact that, in the eyes of the law, the disputed lot did not pass
into the hands of petitioner and respondents as compulsory heirs of Rufo at
any given point in time.
The foregoing notwithstanding, the Court finds a necessity for a complete
determination of the issues raised in the instant case to look into petitioner's
argument that the Extrajudicial Settlement is an independent contract which
gives him the right to enforce his right to claim a portion of the disputed lot
bought by respondents.1avvphi1
It is true that under Article 1315 of the Civil Code of the Philippines, contracts
are perfected by mere consent; and from that moment, the parties are bound
not only to the fulfillment of what has been expressly stipulated but also to
all the consequences which, according to their nature, may be in keeping
with good faith, usage and law.
Article 1306 of the same Code also provides that the contracting parties may
establish such stipulations, clauses, terms and conditions as they may deem
convenient, provided these are not contrary to law, morals, good customs,
public order or public policy.
In the present case, however, there is nothing in the subject Extrajudicial
Settlement to indicate any express stipulation for petitioner and respondents
to continue with their supposed co-ownership of the contested lot.
On the contrary, a plain reading of the provisions of the Extrajudicial
Settlement would not, in any way, support petitioner's contention that it was
his and his sibling's intention to buy the subject property from the Bank and
continue what they believed to be co-ownership thereof. It is a cardinal rule
in the interpretation of contracts that the intention of the parties shall be
accorded primordial consideration.16 It is the duty of the courts to place a
practical and realistic construction upon it, giving due consideration to the
context in which it is negotiated and the purpose which it is intended to
serve.17 Such intention is determined from the express terms of their
agreement, as well as their contemporaneous and subsequent acts.18 Absurd
and illogical interpretations should also be avoided.19
For petitioner to claim that the Extrajudicial Settlement is an agreement
between him and his siblings to continue what they thought was their
ownership of the subject property, even after the same had been bought by
the Bank, is stretching the interpretation of the said Extrajudicial Settlement
too far.
In the first place, as earlier discussed, there is no co-ownership to talk about
and no property to partition, as the disputed lot never formed part of the
estate of their deceased father.
Moreover, petitioner's asseveration of his and respondents' intention of
continuing with their supposed co-ownership is negated by no less than his
assertions in the present petition that on several occasions he had the chance
to purchase the subject property back, but he refused to do so. In fact, he
claims that after the Bank acquired the disputed lot, it offered to re-sell the
same to him but he ignored such offer. How then can petitioner now claim
that it was also his intention to purchase the subject property from the Bank,
when he admitted that he refused the Bank's offer to re-sell the subject
property to him?
In addition, it appears from the recitals in the Extrajudicial Settlement that,
at the time of the execution thereof, the parties were not yet aware that the
subject property was already exclusively owned by the Bank. Nonetheless,
the lack of knowledge on the part of petitioner and respondents that the
mortgage was already foreclosed and title to the property was already
transferred to the Bank does not give them the right or the authority to
unilaterally declare themselves as co-owners of the disputed property;
otherwise, the disposition of the case would be made to depend on the belief
and conviction of the party-litigants and not on the evidence adduced and
the law and jurisprudence applicable thereto.
Furthermore, petitioner's contention that he and his siblings intended to
continue their supposed co-ownership of the subject property contradicts
the provisions of the subject Extrajudicial Settlement where they clearly
manifested their intention of having the subject property divided or
partitioned by assigning to each of the petitioner and respondents a specific
1/3 portion of the same. Partition calls for the segregation and conveyance
of a determinate portion of the property owned in common. It seeks a
severance of the individual interests of each co-owner, vesting in each of
them a sole estate in a specific property and giving each one a right to enjoy
his estate without supervision or interference from the other.20 In other
words, the purpose of partition is to put an end to co-ownership,21 an
objective which negates petitioner's claims in the present case.
WHEREFORE, the instant petition is DENIED. The assailed Decision of the
Court of Appeals, dated May 31, 2005 in CA-G.R. CV No. 58041, is AFFIRMED.
SO ORDERED
G.R. No. 184148 June 9, 2014
NORA B. CALALANG-PARULAN and ELVIRA B. CALALANG, Petitioners,
vs. ROSARIO CALALANG-GARCIA, LEONORA CALALANG-SABILE, and
CARLITO S. CALALANG, Respondents.
Before us is a petition for review on certiorari assailing the Decision1 dated
December 21, 2007 and Resolution2 dated July 25, 2008 of the Thirteenth
Division of the Court of Appeals (CA) in CA-G.R. CV No. 72531. The CA
modified the Decision3 dated July 10, 2001 of the Regional Trial Court (RTC),
Branch 21, of Malolos, Bulacan, in Civil Case No. 370-M-91.
The facts, as culled from the records, follow:
In a Complaint4 for Annulment of Sale and Reconveyance of Property filed
with the RTC of Malolos, Bulacan on June 10, 1991, the 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 with an area of 1,266
square meters and specifically identified as Lot 1132, Cad. 333, Bigaa
Cadastre situated in Brgy. Burol 2nd, Municipality of Balagtas, Province of
Bulacan, was allegedly acquired by the respondents from their mother
Encarnacion Silverio, through succession as the latter’s compulsory heirs.
According to the respondents, their father, 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 above-mentioned 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.
On November 6, 1967, 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, on September 22, 1974, the Register of Deeds of Bulacan issued
Original Certificate of Title (OCT) No. P-28715 in favor of Pedro Calalang
only.
On February 17, 1984, Pedro Calalang sold the said parcel of land to Nora B.
Calalang-Parulan as evidenced by a Deed of Sale6 executed by both Pedro
Calalang and Elvira B. Calalang. Accordingly, the Register of Deeds of
Bulacan cancelled OCT No. P-2871 and issued Transfer Certificate of Title
(TCT) No. 283321 in the name of Nora B. Calalang-Parulan. On December 27,
1989,7 Pedro Calalang died.
The respondents assailed the validity of TCT No. 283321 on two grounds.
First, 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. Second,
the respondents claimed that the sale was absolutely simulated as Nora B.
Calalang-Parulan did not have the capacity to pay for the consideration
stated in the Deed of Sale.
In their Answer,8 the petitioners argued that the parcel of land was acquired
during the second marriage of Pedro Calalang with Elvira B. Calalang. They
stressed that OCT No. P-2871 itself stated that it was issued in the name of
"Pedro Calalang, married to Elvira Berba [Calalang]." Thus, the property
belonged to the conjugal partnership of the spouses Pedro Calalang and
Elvira B. Calalang. The petitioners likewise denied the allegation that the sale
of the land was absolutely simulated as Nora B. Calalang-Parulan was
gainfully employed in Spain at the time of the sale. Moreover, they alleged
that the respondents did not have a valid cause of action against them and
that their cause of action, if any, was already barred by laches, estoppel and
prescription. By way of counterclaim, the petitioners also sought the
payment to them of moral and exemplary damages plus costs of suit for the
filing of the clearly unfounded suit.
On July 10, 2001, the trial court rendered decision in favor of the respondents.
The dispositive portion of the RTC decision reads as follows:
WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and
against the defendants in the following manner:
1. Ordering the defendants to reconvey in favor of the plaintiffs, their rightful
share to three-fourth (3/4) of one-half (1/2) or a total of 474.75 square
meters at 158.25 square meters for each of the three plaintiffs, namely:
Rosario, Leonora, and Juanito all surname[d] Calalang, of the real property
covered by TCT No. 283321 of the Registry of Deeds of Bulacan
corresponding to their shares in the conjugal estate of the late Encarnacion
S. Calalang [sic];
2. Ordering defendants to pay plaintiffs the amount of ₱50,000.00 for moral
damages; ₱50,000.00 for attorney’s fees and another ₱50,000.00 for
litigation expenses.
3. Dismissing the defendants’ counterclaims.
With costs against the defendants. SO ORDERED.9
The trial court declared that the parcel of land was jointly acquired by the
spouses Pedro Calalang and Encarnacion Silverio from the parents of the
latter. Thus, it was part of the conjugal property of the first marriage of Pedro
Calalang. When this marriage was dissolved upon the death of Encarnacion
Silverio on June 7, 1942,the corresponding shares to the disputed property
were acquired by the heirs of the decedent according to the laws of
succession. In particular, the trial court allocated half of the disputed
property to Pedro Calalang as his share in the conjugal partnership and
allocated the other half to the three respondents and Pedro Calalang to be
divided equally among them. The trial court then ordered all of Pedro’s share
to be given to Nora B. Calalang-Parulan on account of the sale. The trial court
also ruled that because the application for free patent filed by Pedro
Calalang was attended by fraud and misrepresentation, Pedro Calalang
should be considered as a trustee of an implied trust.
Aggrieved by the adverse ruling, the petitioners appealed the case to the CA
which rendered the assailed Decision on December 21, 2007. The dispositive
portion of the CA decision reads,
WHEREFORE, in light of the foregoing premises, the Decision dated July 10,
2001of the Regional Trial Court of Malolos, Bulacan is hereby MODIFIED to
read as follows:
"WHEREFORE, judgment is hereby rendered in favor of the plaintiffs, and
against the defendants in the following manner:
1. Ordering the defendants to reconvey in favor of the plaintiffs, their rightful
share to the property owned by their common father Pedro Calalang,
equivalent to one half(1/2) portion of the whole area or 633 square meters
to be divided equally by the three plaintiffs, namely:
Rosario, Leonora and Carlito, all surnamed Calalang, each getting an area of
211 square meters of the property covered by TCT No. 2883321 of the
Registry of Deeds of Bulacan corresponding to their shares in the property
of their late father Pedro Calalang;
2. Ordering defendants to pay plaintiffs the amount of ₱50,000.00 for moral
damages; ₱50,000.00 for attorney’s fees and another ₱50,000.00 for
litigation expenses.
3. Dismissing the defendants’ counterclaims.
With costs against the defendants. SO ORDERED.
The CA reversed the factual findings of the trial court and held that Pedro
Calalang was the sole and exclusive owner of the subject parcel of land.
Firstly, it held that there was insufficient evidence to prove that the disputed
property was indeed jointly acquired from the parents of Encarnacion
Silverio during the first marriage. Secondly, the CA upheld the indefeasibility
of OCT No. P-2871. It held that although the free patent was issued in the
name of "Pedro Calalang, married to Elvira Berba [Calalang]" this phrase was
merely descriptive of the civil status of Pedro Calalang at the time of the
registration of the disputed property. Thus, contrary to the ruling of the trial
court, upon the death of Encarnacion Silverio on June 7, 1942, the
respondents did not acquire any successional rights to the parcel of land
which was exclusively owned by Pedro Calalang. However, applying the rules
of succession, Pedro’s heirs namely, Rosario Calalang-Garcia, Leonora
Calalang-Sabile, Carlito Calalang, Nora B. Calalang-Parulan, Elvira B.
Calalang, and Rolando Calalang, succeeded Pedro to the land in equal shares
upon his death. Thus, the CA ordered the petitioners to reconvey in favor of
the respondents their rightful shares to the land. The CA ruled that the sale
by Pedro Calalang to Nora B. Calalang-Parulan was fraudulent and fictitious
as the vendee was in bad faith and the respondents were unlawfully deprived
of their pro indiviso shares over the disputed property. As regards the issue
of prescription, the CA ruled that the prescriptive period for reconveyance
of fraudulently registered real property is ten years. Since the property was
registered in the name of Nora in1984 and the action for reconveyance was
filed in 1991, the action has not yet prescribed.
On January 23, 2008, petitioners filed their Motion for Reconsideration. The
CA, however, denied their motion in its Resolution dated July 25, 2008.
Hence, this petition raising the sole issue:
Whether or not the court a quo gravely erred in rendering its December 21,
2007 Decision modifying the July 10, 2001 Decision of the trial court, and in
issuing its July 25, 2008 Resolution denying petitioners’ Motion for
Reconsideration dated January 23, 2008.11
Essentially, the only issue in this case is whether Pedro Calalang was the
exclusive owner of the disputed property prior to its transfer to his daughter
Nora B. Calalang-Parulan.
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 No. P-2871 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.
The petition is meritorious.
Preliminarily, we note that the resolution of the issue in this case requires a
reevaluation of the probative value of the evidence presented by the parties
in order to trace the title of the disputed property. What is involved is indeed
a question of fact which is generally beyond the jurisdiction of this Court to
resolve in a petition for review on certiorari.12 However, a recognized
exception to the rule is when the RTC and CA have conflicting findings of
fact as in this case.13 Here, while the trial court ruled that the disputed
property belonged to the conjugal partnership of the first marriage of Pedro
Calalang with Encarnacion Silverio, the court a quo declared that the
evidence proved the sole and exclusive ownership of the disputed property
of Pedro Calalang.
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.
The trial court ruled that the respondents were able to establish that Lot 1132,
Cad. 333 originated from the parents of Encarnacion, and therefore said
property "either became property of Encarnacion in her own right or jointly
with her husband Pedro Calalang in 1936." In so ruling, the trial court relied
on the testimony of Rosario Calalang-Garcia that her parents built a nipa
house on the subject lot and lived there before and after World War II. The
trial court further noted that Rosario’s testimony was corroborated by her
cousin and adjacent neighbor Manolo Calalang.14
However, 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]."
The contents of a certificate of title are enumerated by Section 45 of
Presidential Decree No. 1529, otherwise known as the Property Registration
Decree:
SEC. 45. Statement of personal circumstances in the certificate. – Every
certificate of title shall set forth the full names of all persons whose interests
make up the full ownership in the whole land, including their civil status, and
the names of their respective spouses, if married, as well as their citizenship,
residence and postal address. If the property covered belongs to the
conjugal partnership, it shall be issued in the names of both spouses.1âwphi1
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. In Litam v.
Rivera,15 we declared:
Further strong proofs that the properties in question are the paraphernal
properties of Marcosa Rivera, are the very Torrens Titles covering said
properties. All the said properties are registered in the name of "Marcosa
Rivera, married to Rafael Litam." This circumstance indicates that the
properties in question belong to the registered owner, Marcosa Rivera, as
her paraphernal properties, for if they were conjugal, the titles covering the
same should have been issued in the names of Rafael Litam and Marcosa
Rivera. The words "married to Rafael Litam" written after the name of
Marcosa Rivera, in each of the above mentioned titles are merely descriptive
of the civil status of Marcosa Rivera, the registered owner of the properties
covered by said titles.
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.17 It was therefore excluded from the conjugal
partnership of gains of the second marriage.18
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. The CA therefore erred in ruling that Pedro Calalang
deprived his heirs of their respective shares over the disputed property when
he alienated the same.
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."
In Butte v. Manuel Uy and Sons, Inc.,19 we proclaimed the fundamental
tenets of succession:
The principle of transmission as of the time of the predecessor's death is
basic in our Civil Code, and is supported by other related articles. Thus, the
capacity of the heir is determined as of the time the decedent died (Art.
1034); the legitime is to be computed as of the same moment (Art. 908), and
so is the in officiousness of the donation inter vivas (Art. 771). Similarly, the
legacies of credit and remission are valid only in the amount due and
outstanding at the death of the testator (Art. 935), and the fruits accruing
after that instant are deemed to pertain to the legatee (Art. 948).
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
in officious donation inter vivas), 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. Well to remember, fraud must be established
by clear and convincing evidence. Mere preponderance of evidence is not
even adequate to prove fraud.20 The Complaint for Annulment of Sale and
Reconveyance of Property must therefore be dismissed.
WHEREFORE, the petition for review on certiorari is GRANTED. The Decision
dated December 21, 2007 and Resolution dated July 25, 2008 of the
Thirteenth Division of the Court of Appeals in CA-G.R. CV No. 72531 are
REVERSED and SET ASIDE. Civil Case No. 370-M-91, or the Complaint for
Annulment of Sale and Reconveyance of Property filed by the respondents
with the Regional Trial Court, Branch 21 of Malolos, Bulacan, on June 10, 1991,
is hereby DISMISSED for lack of merit.
No pronouncement as to costs. SO ORDERED.
G.R. Nos. L-36811, 36827, 36840, 36872 March 31, 1934
ANTONIO MA. BARRETTO Y ROCHA, ET AL., plaintiffs-appellees,
vs.AUGUSTO H. TUASON Y DE LA PAZ, ET AL., defendants-appellants;
BENITO LEGARDA Y ROCES, administrator of the estate of the deceased
Benito Legarda y de la Paz, ET AL.,
ESTANISLAOA ARENAS, ET AL., and ANA BARCINAS TORRES, (alias ANA
BARCINAS PEREZ) ET AL., intervenors-appellants;
ERIBERTO TUASON, ET AL., intervenors-appellees.
For the third time, there is presented for our consideration the mayorazgo
founded by the deceased Don Antonio Tuason. The first occasion was when
both plaintiffs and defendants appealed from a decision of the Court of First
Instance of Manila, dismissing the complaint and the counterclaim filed,
without costs. The appeals thus interposed were docketed under No. 23923,
and the decision promulgated on March 23, 1926, is published in full in
volume 50 Philippine Reports, page 888 et seq. the second occasion was
when some of the defendants instituted a certiorari proceeding against the
Court of First Instance of Manila, some of the plaintiffs, and other
intervenors, because of the appointment, at the latter's instance, of the Bank
of the Philippine Islands as receiver of all the properties constituting the
mayorazgo. Said proceeding was docketed under No. 32423, and the
decision promulgated on February 7, 1930, is published in full in volume 54
Philippine Reports, page 408 et seq.1 And the third is brought about by four
appeals taken by the defendants and some intervenors from certain portions
of the decision and order rendered by the court during the new trial held
pursuant to our resolution of which we shall hereafter have occasion to
speak.
The four appeals now before us were docketed separately, but for a better
understanding of the questions which we propose to resolve, we have
thought it convenient to render a single decision wherein each appeal will
be discussed individually.
PRELIMINARY CONSIDERATIONS
Before entering upon a consideration of the appeals, it is convenient to set
out some fundamental facts which have been submitted, discussed, and
resolved in the decision rendered in the original and principal case, and
which are of the utmost importance to bear in mind in resolving the
questions raised anew in the appeals. These facts are:
The mayorazgo was founded by Don Antonio Tuason on February 25, 1794.
On June 4 of the same year the founder died in the City of Manila.
The mayorazgo was approved by Royal Cedula of August 20, 1795.
On October 11, 1820, the Statute of Civil Disentailments was promulgated in
Spain, was extended to the Philippine Islands, and took effect therein on
March 1, 1864, by virtue of a Royal Decree of October 31, 1863.
The properties of the mayorazgo consist of the Haciendas de Santa Mesa y
Diliman, Hacienda de Mariquina, and two urban properties situated on
Rosario Street, Manila. By agreement of the parties, the assessed value of
the said properties is:
Haciendas de Santa Mesa y Diliman P3,550,646.00
Hacienda de Mariquina 1,507,140.00
Properties on Rosario Street 542,382.00
Total . . . . . . . . . . . . . . . . . .
5,600,168.00
After the promulgation of the decision in the principal case, the defendants
filed a motion of reconsideration and various persons filed motions of
intervention asking at the same time that they be admitted as intervenors
for the purpose of participating in one-fifth of the properties. The resolution
published in volume 50 Philippine Reports, page 959 et seq., was adopted,
wherein (page 963) the following fundamental conclusions, established in
the decision, were reiterated:
Resolving, therefore, said motion for reconsideration, we reiterate the
following conclusions, declaring finally:
(1) That the first-born possessor of this mayorazgo was a mere usufructuary
of the entailed properties.
(2) That this mayorazgo was a fideicomiso.
(3) That the charge to distribute the fifth of the revenues from said
properties was a family trust.
(4) That article 4 of the Disentailing Law of October 11, 1820 is applicable to
the present case.
(5) That the fifth of the properties into which, by virtue of said law, the fifth
of the revenue was converted on March 1, 1864, when the Disentailing Law
became effective in the Philippines, has remained and subsists as a
fideicomiso up to the present date.
(6) That the plaintiffs' right of action has not prescribed.
(7) That the registration of the entailed properties under Act No. 496 must,
with respect to the fifth of the said properties conserved up to the present
time as a fideicomiso, be held to have been made in favor of the beneficiaries
of said fifth part.
(8) That the plaintiffs, as well as any other descendants of the founder, are
entitled to participate in the fifth of the properties of this mayorazgo in
accordance with the sixth clause of the deed of foundation and article 4 of
the Disentailing Law.
The motion of reconsideration was denied in so far as it was incompatible
with the final and fundamental conclusions arrived at in the decision and in
the resolution, but the motion for a new trial of the intervenors — who
appeared in order that they or any other person entitled to participate in
one-fifth of the properties may intervene, either by filing other complaints
of intervention or by amending the complaint filed — was granted. The
dispositive part of said resolution reads literally as follows:
ORDER
In view of the foregoing, it is ordered:
(a) That the motion for reconsideration filed by counsel for the defendants
is denied in so far as it is incompatible with the fundamental conclusions we
have arrived at in the present cause and enumerated in the preceding
resolution.
(b) That the dispositive part of our decision in this cause be set aside.
(c) That the record in the present case, together with the petitions of
intervention mentioned, be returned to the Court of First Instance of Manila
in order that the new parties may intervene in this cause and prove their
alleged rights, and that the original plaintiffs may, if they so desire, amend
their complaint.
(d) That the plaintiffs take the necessary steps to include as parties to this
cause all such known and unknown persons who may have the right to
participate in the said fifth part of the properties of this foundation,
requiring them to appear and prove their rights.
(e) That said Court of First Instance proceed to try this cause and render
judgment as to the amount to which the original parties and those who may
intervene may be entitled as their participation in the fifth of the properties
of this mayorazgo.
(f) That the stipulation of facts subscribed on August 30, 1924 by
Attorneys Sanz and Blanco on behalf of the plaintiffs and Araneta &
Zaragoza on behalf of the defendants, for all intents and purposes and with
respect to the parties affected, is held as subsisting, as well as the oral and
documentary evidence presented by the parties during the original trial of
the cause, the original parties as well as o hereafter may intervene, being
entitled to introduce such additional evidence as they may desire upon the
subject matter of the trial herein ordered. (Barretto vs.Tuason, 50 Phil., 888,
966, 967.)
The case was remanded to the court of origin for the purpose above-
mentioned, and after the filing of many complaints of intervention by a
number of persons claiming to be relatives of the founder and of his younger
children and, therefore, entitled to participate in one-fifth of the properties,
on suggestion of counsel for the parties the court appointed Modesto Reyes
as referee, and upon his death, Attorney Crispin Oben. Both referees filed
their written reports, although that of the former does not resolve the major
portion of the questions raised due to his premature death, and at the trial
various objections were interposed which were resolved by the court. In its
decision the court approved most of the findings and recommendations of
the last referee, but modified others which in its opinion were not supported
either by the proven facts or the applicable law. The defendants and some
of the intervenors, not being likewise agreeable to certain portions of the
decision and order thus promulgated, have taken the four appeals now
before us.
G.R. No. L-36811
APPEAL OF THE INTERVENORS SURNAMED LEGARDA Y DE LA PAZ
The appellants in this case are the brother and sisters Benito, Consuelo. Rita,
surnamed Legarda y de la Paz. These intervenors claim participations in one-
fifth of the properties in two capacities: First. is descendants of the younger
son Pablo Tuason, and, second, for having inherited from their parents the
participations in one-fifth of the properties which were sold to the latter by
certain relatives of the founder. They likewise claim the share to which they
would be entitled in the participations of certain relatives of the younger
daughter, Eustaquia Ma. Tuason, who sold said participations to the
defendants. We will hereafter have occasion to pass on this contention in
discussing the four assigned error.
The following is an enumeration of the names of the vendors of their
participations in favor of the parents of the appellants, giving the dates of
the respective deeds:
1. DOROTEA TUASON, by a deed of absolute sale executed by her in favor of
Benito Legarda and Teresa de la Paz.dated September 13, 1881. (Exhibit A-
Legarda.)
2. ISABEL ARENAS, by a deed of absolute sale executed by her and her
husband Francisco Esteban, in favor of the spouses Benito Legarda and de la
Paz, dated October 2, 1884 Exhibit B-Legarda.)
3. The brothers ENRIQUE. SEVERINO, and DOMINGO, surnamed FRANCO, by
a deed of absolute sale executed by them in favor of the spouses Benito
Legarda and Teresa de la Paz, dated November 7, 1884. (Exhibit C-Legarda.)
4. The sisters BALBINA SANTOS TUASON and MAGDALENA SANTOS
TUASON, by a deed of absolute sale executed by them in favor of the
spouses Benito Legarda and Teresa de la Paz, dated January 23, 1885. (Exhibit
D-Legarda.)
5. APOLINARIA TUASON, by a deed of absolute sale, executed by her in favor
of the spouses Benito Legarda and Teresa de la Paz, dates February 17, 1885.
(Exhibit F-Legarda.)
6. ESTEBAN DUARTE, ISIDRA MARIA DUARTE, and ALEJANDRO DUARTE, by
a deed of absolute sale executed by them in favor of the spouses Benito
Legarda and Teresa de la Paz, dated February 17, 1885. (Exhibit F-Legarda.)
7. TOMASA TUASON DE TOBIAS, who was then a widow, by a deed of
absolute sale executed by her in favor of the spouses Benito Legarda and
Teresa de la Paz, dated October 3, 1888. (Exhibit G-Legarda.)
8. LUIS TUASON and PEDRO TUASON, by a deed of absolute sale executed
by them in favor of the spouses Benito Legarda and Teresa de la Paz, dated
April 7, 1886. (Exhibit H-Legarda.)
9. ALEJANDRO, ANACLETO, TEODORICO, MARIA, AND DIONISIA, surnamed
CAMACHO y TUASON, and TOMAS, ENCARNACION, MARIA, and
MERCEDES, surnamed MACARANAS y TUASON, by a deed of absolute sale
executed by them in favor of the spouses Benito Legarda and Teresa de la
Paz, dated August 11, 1886. (Exhibit I-Legarda.)
10. FELIPE G. ALCALDE, by a deed of absolute sale executed by him in favor
of the said spouses, dated October 27, 1886. (Exhibit J-Legarda.)
11. QUINTINA CASTILLO VIUDA DE JUAN N. C. REYES, by a deed of absolute
sale executed by her in favor of the spouses Benito Legarda and Teresa de la
Paz, dated April 25, 1888. (Exhibit K-Legarda.)
The vendor, Quintina Castillo Viuda de Juan N. C. Reyes, who had a
participation in the entailed properties as descendant in the direct line of the
founder, acquired the participation of the latter, the said vendor Quintina
Castillo having been declared the sole and universal heir by will of the said
Juan N. C. Reyes, as evidenced by Exhibit K-1-Legarda.
12. TEODORA EIZMENDI, by a deed of absolute sale executed by her in favor
of the spouses Benito Legarda and Teresa de la Pam, dated October 3, 1888.
(Exhibit L-Legarda.)
13. PETRONA MARIA DUARTE, by a deed of absolute sale executed by her in
favor of the said spouses Benito Legarda and Teresa de la Paz, dated October
8, 1888. (Exhibit L-1-Legarda.)
14. AVELINO TUASON alias ANDRES AVELINO TUASON, by a deed of
absolute sale executed by him in favor of the father of the herein intervenors,
Benito Legarda, dated March 5, 1883. (Exhibit M-Legarda.)
Of the said sales, only those executed by the following were impugned: (1)
Isabel Arenas; (2) Tomasa Tuason de Tobias; (3) Luis Tuason and Pedro
Tuason; (4) Alejandro, Anacleto, Teodorico, Maria, and Dionisia, surnamed
Camacho y Tuason, and Tomas, Encarnacion, Maria, and Mercedes,
surnamed Macaranas y Tuason; (5) Felipe G. Alcalde, and (6) Teodora
Eizmendi. The impugners of the sales are relatives of the vendors who would
be entitled to succeed there in their respective participations.
The appellants impute the following errors to the appealed decision:
I. In finding that Tomasa Tuason de Tobias, Luis Tuason, and Pedro Tuason,
who sold their participations in the properties in litigation to the father and
mother of the intervenors Legarda y de la Paz, were already receiving the
revenue on the date the Disentailing Statute took effect.
II. In declaring null and void as to one-half of the participations sold, instead
of valid in their entirety, the sale made by Tomasa de Tobias (Exhibit G-
Legarda) and that executed by Luis and Pedro Tuason (Exhibit H- Legarda),
and in not adjudicating to the intervenors Legarda y de la Paz the entire
participations corresponding to said vendors.
III. In excluding from the sales the participations corresponding to the
vendors in the portions belonging to the younger children without
succession of the founder, and in not adjudicating said participations to the
intervenors Legarda y de la Paz.
IV. In not adjudicating to the intervenors Legarda y de la Paz the
participations sold by some descendants of the founder's daughter,
Eustaquia Maria Tuason, and in the event of the distribution of said
participations among the descendants, in general, of the founder, in not
adjudicating to said intervenors the participations which would, therefore,
correspond to the vendors of the Legardas.
V. In not adjudicating to the intervenors Legarda y de la Paz the participation
corresponding to the vendor Dorotea Tuason as descendant of Santos
Luciano Tuason.
VI. In not ordering the defendants to pay legal interest.
VII. In denying the motion for a new trial.
The first two assigned errors are intimately related, as they refer to the sales
of their participations executed by Tomasa Tuason de Tobias, Luis Tuason,
and Pedro Tuason. Referee Oben held in his report that the sales made by
said vendors did not transfer more than one-half of their participations,
because on the dates of the sales they were the ones who received the
revenue and they could not dispose of more than one-half of their
participations, reserving the other half in favor of their immediate
successors, in accordance with the provisions of article 4, in connection with
articles 2 and 3, of the Disentailing Statute. The court entertained the same
opinion.
In support of their contention, the appellants advance the following reasons:
(1) That the said vendors were not the ones who received the revenue on
March 1, 1864, when the Disentailing Statute took effect; consequently, the
reservation of one-half is not applicable to the sales in question; (2) that the
present action of the impugners to invalidate the sales as to one-half thereof
has already prescribed; (3) that the appellants have acquired by prescription
of owner ship the entire participations sold; and (4) that the inaction of the
impugners of the sales for a period of years without exercising their alleged
right estops them from claiming the participations sold, under the doctrine
known as estoppel by laches.
Although we have examined the oral and documentary evidence adduced,
to ascertain whether Tomasa Tuason de Tobias, Luis Tuason, and Pedro
Tuason were in fact the ones who received the revenue when the Disentailing
Statute took effect — and we are in a position to state that the first of said
vendors was not in fact the one who received the revenue on said date but
the Tuason brothers — nevertheless, we do not make any pronouncement
on this question in view of the fact that the first two assigned errors under
consideration should be resolved in connection with the other arguments
relative to prescription of action and ownership and estoppel by laches.
It will be recalled that the deed of sale of the participation of Tomasa Tuason
de Tobias was executed on October 3, 1888, and the sale of those of the
brothers Luis and Pedro Tuason on April 7, 1886; the complaints of
intervention which assailed the validity of the sales of said participations for
the first time were filed in 1927, hence, approximately forty-one years have
elapsed from the first sale to the date its validity was impugned for the first
time, and about thirty years from the execution of the second sale to the said
date.
The right now exercised by the impugners of the sales is a personal action
whose prescription should be governed by the laws in force at the time of
the execution of the deeds of sale, that is, April 7, 1886, and October 3, 1888,
namely, Law 5, Title 8, Book 11, of the Novisima Recopilacion, and Law 21,
Title 29, Partida 3, which provide for the period of ten years (Crusado vs.
Bustos and Escaler, 34 Phil., 17).
Article 1939 of the present Civil Code provides:
ART. 1939. Prescription which began to run before the publication of this
Code shall be governed by the prior law; but if, after this Code took effect,
all the time required by the same for prescription bas elapsed, it shall be
sufficient even if according to such prior law a longer period of time would
have been required.
And article 1301 of the same Code provides:
ART. 1301. The action of annulment shall last four years.
The term shall commence to run —
In cases of intimidation or violence from the day on which it has ceased;
In those of error or deceit or falsity of consideration., from the date of the
consummation of the contract;
When the purpose of the action is to invalidate the un authorized contracts
of a married woman, from the date of the dissolution of the marriage;
With respect to contracts made by minors or incapacitated persons, from the
date they were released from guardianship.
According to these provisions, the action of annulment, admitting that it had
not yet prescribed when the Civil Code took effect in these Islands on
December 7, 1889 (Mijares vs. Nery, 3 Phil., 195), should have commenced by
the impugners of the sales within the four (4) years following the taking
effect of the Civil Code, which was not done.
The rules of prescription found in the Code of Civil Procedure, Act No. 190,
are not applicable to the action of annulment under consideration, because
according to section 38 thereof, the prescriptive period provided in former
statutes should be applied to rights of action which have already accrued
before it went into effect.
From the foregoing it clearly follows that the action of annulment instituted
and relied upon by the impugners of the said sales has already prescribed,
both under the Laws of the Partidas and the Novisima Recopilacion and
under the provisions of the Civil Code, and in the latter case, even the
supposition that the prescriptive period for an action of annulment of
contracts had been extended to ten years, instead of four, in accordance with
the provisions of section 43, No. 1, of the Code of Civil Procedure. (Willard,
Notes on Civil Code; Brillantes vs. Margarejo and Belmonte, 36 Phil. 202.)
But the impugners of the sales argue that they do not in fact institute an
action of annulment, but merely use the same as a defense, hence, they are
not affected by the laws of prescription. In the able report of referee Oben,
this phase of the question was discussed at length, and he came to
conclusion, as did the court, that the impugners of the sales have in fact
brought an action of annulment. Without going into another extended
discussion, we believe it will suffice to state, to demonstrate the same
conclusion, that in the instant case those in the enjoyment of the
participations sold as well as the ownership thereof are the appellants and
not the impugners of the sales, and that to recover the rights lost under the
deeds of sale they executed, the latter have to avail themselves of an action
of annulment. In this sense, at least, they should be under stood as bringing
the action instead of simply defending themselves, aside from the
indisputable fact that, to recover the participations which they sold, they
found it necessary to file complaints of intervention, which are really
complaints under the letter and spirit of section 121 of the Code of Civil
Procedure.
As to the question of acquisitive prescription, likewise invoked by the
appellants, we hold that due to the long lapse of time they have acquired by
prescription whatever rights the impugners of the sales had in the
participations which they sold.
Addressing ourselves to appellants' last argument, it should again be stated
that they and their predecessors have enjoyed the revenue corresponding to
the participations which they have acquired and that during the period that
has elapsed, the vendors and impugners of the sales have done nothing to
recover their alleged rights. Such conduct insurmountably bars the instant
action of annulment under the doctrine of estoppel by laches. In the case of
Buenaventura vs. David (37 Phil., 435), speaking of the said doctrine, we said:
. . . The assertion of doubtful claims, after long delay, cannot be favored by
the courts. Time inevitably tends to obliterate occurrences from the memory
of witnesses, and even where the recollection appears to be entirely clear,
the true clue to the resolution of a case may be hopelessly lost. These
considerations constitute one of the pillars of the doctrine long familiar in
equity jurisprudence to the effect that laches or unreasonable delay on the
part of a plaintiff in seeking to enforce a right is not only persuasive of a
want of merit but may, according to the circumstances, be destructive of the
right itself. Vigilantibus non dormientibus equitas subvenit.
And in the case of Tuason vs. Marquez (45 Phil., 381), the same principle was
again applied as follows:
The equitable doctrine termed with questionable propriety "estoppel by
laches," has particular applicability to the fact before us. Inexcusable delay
in asserting a right and acquiescence in existing conditions are a bar to legal
action. . . .
We see no good reason why the said equitable doctrine should not be
applied to the case at bar. The impugners of said sales have let pass a number
of years from the accrual of their right of action to annul the sales without
exercising such right, and have voluntarily permitted appellants'
predecessors in interest to enjoy the participations sold; in which
circumstances it is the duty of the courts to restrict, instead of encourage,
the granting of a right already lost.
The third assigned error refer to the sales executed by some descendants of
the founder who sold the participations that would come to them as
descendants likewise of the younger children of the founder. The court at
first approved the report of referee Oben declaring valid the sales of the
participations coming from the younger children with succession as well as
from those without succession. But the court, in its order of April 8, 1931,
modified its decision declaring invalid the sales of the participations coming
from the younger children without succession. From this latter resolution the
appeal was taken. The reason alleged by the court in support of its last order
was, that the said sales were illegal because they conveyed rights not known
and determined at the time of the execution of the deeds of sale. We do not
see the force of this argument. If the sales were valid as to the participations
coming from the younger children with succession, with more reason should
the sales of the participations coming from the younger children who died
without succession be declared equally valid, as in both cases the sale of
existing rights, known and determinable, was involved, as said participations,
so far as the vendors were concerned, arose and were acquired by the latter
from the death of their predecessors in interest, the younger children.
(Article 657 of the Civil Code.) For this reason we find the third error tenable
and sustain the validity of the sales of said participations.
The plaintiffs and the defendants had stipulated when the original case was
heard that the younger daughter, Eustaquia Ma. Tuason, died without
succession, but it developed that the said deceased in fact left descendants
some of whom sold their participations to the defendants. The referee stated
in his report that such participations have neither been sold nor legally
acquired by the defendants because they were estopped by their stipulation
with the plaintiffs to the effect that said younger daughter died without
descendants. The court differed from this and held in its decision that there
was no such estoppel, and that the defendants validly acquired the
participations sold to them. The herein appellants, Legarda brothers and
sisters, by their fourth assigned error, now attempt to reverse the finding of
the court that the defendants are not thus estopped. And appellants'
purpose is obvious: if the sales are invalidated, the participations, subject
matter thereof, would be distributed among all the relatives of the said
younger daughter, and appellants will naturally receive a certain aliquot part
thereof.
We agree with the court that the defendants are not estopped just because
they stipulated that Eustaquia Ma. Tuason left no succession. And this
proposition is clear by simply taking into account that the defendants never
agreed that they had not purchased the participations of the descendants of
the said younger daughter. The stipulation referred only and exclusively to
the succession or descendants of the said younger daughter and cannot be
logically extended to the sales made by several of her descendants.
Moreover, as properly observed by the court, to sustain appellants' theory
would result in the absurd case of the other descendants of said younger
daughter who did not sell their participations being deprived thereof just
because the original parties stipulated that their predecessor in interest left
no succession. We, therefore, rule that the fourth assigned error is untenable.
The fifth error relates to the participations of Dorotea Tuason which she sold
to the appellants. This vendor was entitled to a double participation coming
from two sources, to wit, from the younger children Santos Luciano Tuason
and Felix Bolois Tuason. In amendatory report of referee Oben the
participation of this vendor as descendants of Santos Luciano Tuason was
overlooked. The appellants filed a motion of reconsideration asking, among
other things, that the participation of said vendor as descendant of Santos
Luciano Tuason be likewise adjudicated to them. The court granted the
motion, but in its order it was stated that the participation of Dorotea Tuason
coming from Felix Bolois Tuason will be adjudicated to the appellants,
instead of that coming from Santos Luciano Tuason. In other words there
was a transposition of names, hence, appellants state in their brief that this
involves a mere correction of a clerical error.
In view of the foregoing we find the fifth assigned error well-founded.
In their sixth assigned error the appellants contend that the defendants are
bound to pay them legal interest on the amounts of money to be adjudicated
to them as their participations in the one-fifth, alleging as a reason therefor
that the defendants were guilty of delay from the taking effect of the
Disentailing Statute ordering the distribution and delivery of the fifth to the
persons entitled to it, among whom were said appellants.
The contention is without merit in view of the fact that in the decision
rendered in the original case, it was held that the plaintiffs, whose position
was like that of the herein appellants, were entitled to an accounting of the
expenses and revenues of said properties and to receive that corresponding
revenues, from January 1, 1923, until the defend ants deliver to them their
participations in the properties of the foundation. The revenues thus
adjudicated were in lieu of legal interest claimed by the plaintiffs. For these
reasons, the sixth assigned error is untenable.
The seventh and last assigned error need not be discussed being a corollary
of the preceding ones.
Recapitulating all that has been said so far, it results:
1. That the sales of their participations made by Tomasa Tuason de Tobias,
Luis Tuason and Pedro Tuason in favor of the appellants, are valid in their
entirety and should, therefore, be adjudicated to the latter; thus resolving
favorably the first two errors assigned;
2. That the sales made by some descendants of the founder, of their
participations coming from the younger children without succession, are
likewise valid, and said participations should be adjudicated to the
appellants. This also resolves favorably the third assigned error;
3. That the participation of Dorotea Tuason as descendant of Santos Luciano
Tuason should be adjudicated to the appellants; thereby resolving favorably
the fifth assigned error; and
4. That the fourth and sixth assigned errors are overruled as untenable.
G. R. No. 36827
APPEAL OF THE INTERVENOR ANA BARCINAS TORRES (alias ANA BARCINAS
PEREZ) AND OTHERS
It will be recalled, from what has been said in connection with the first
appeal, that Eustaquia Ma. Tuason died leaving succession, notwithstanding
the stipulation to the contrary by the plaintiffs and the defendants at the
trial of the principal case. The herein appellants are descendants of the
younger daughter Eustaquia Ma. Tuason. All of them, with the exemption of
Tomas Barcinas y Reyes, are descendants of Tomas Barcinas, who, with the
said Tomas Barcinas y Reyes, sold all their rights, interest, and participation
in one-fifth of the revenue of the mayorazgo through their attorney-in-fact
Manuel de los Reyes, in favor of the estate of Teresa de la Paz.
Said appellants attribute to the appealed decision the following errors:
I. We hereby adopt as our own all of the pertinent assignments of errors of
the other intervenors in G.R. Nos. 36811 and 36840, which are applicable to
the intervenors here and, by reference, hereby incorporate their arguments
in support of said errors.
II. The lower court erred in holding the sale executed by Manuel de los Reyes,
pretending to act under and by virtue of aforesaid void power of attorney,
valid, and in failing to hold same null and void.
III. The lower court erred in holding the sale executed by Manuel de los
Reyes, pretending to act under and by virtue of aforesaid void power of
attorney, valid, and in failing to hold same null and void.
IV. The lower court erred in interpreting aforesaid sale executed by Manuel
de los Reyes, pretending to act under aforesaid void power of attorney, and
in so interpreting said sale as to deprive these intervenors of their true rights
under the mayorazgo founded by Don Antonio Tuason.
Exhibit Tuason-1 shows that on June 8, 1894, the said Tomas Barcinas y Cruz,
Tomas Barcinas y Reyes, Benita Barcinas y Cruz, and Maria Manibusan y
Barcinas, through their attorney-in-fact Manuel de los Reyes, sold all their
participations in one-fifth of the revenue of the mayorazgo which they had
in possession as descendants of the younger daughter Eustaquia Ma Tuason,
including all their rights and interest in the said one-fifth of the revenue, for
the sum of P5,000. In the said deed of sale there was reproduced in full the
power of attorney which said vendors had conferred on their attorney-in-
fact Manuel de los Reyes, executed on July 4, 1893, in the City of Agaña,
capital of Marianas Islands, before the judge of first instance acting as notary
in the absence of the notary of said district.
The appellants contend that the sale is null and void because the power of
attorney which the vendors conferred on their agent was not ratified before
a notary but before a judge of first instance. The referee, in passing upon the
legal point involved, said:
In order that the sale made by Manuel de los Reyes behalf of the Barcinas
may be valid, a written power of attorney was sufficient, without the
necessity of converting said power of attorney into a public document.
(Section 335, No. 5, Code of Civil Procedure; article 1278, Civil Code. Without
dis therefore, whether or not under the laws in force in the Marianas Islands
in 1893, the judge of first instance could act as notary public, the indisputable
fact remains that those named as grantors in the instrument in question
executed said power of attorney; and this execution of the written power of
attorney was sufficient to authorize the attorney-in-fact Manuel de los Reyes
to execute a valid sale of the property of his principals.
The undersigned is of the opinion, therefore, that the deed Exhibit Tuason-1
legally transferred to the estate of Doña Teresa de la Paz what appears in
said deed, belonging to the grantors therein named:
The court affirmed the conclusion of the referee in the following language:
The court agrees with the referee that, notwithstanding the execution of the
power of attorney in the City of Agaña before the judge of first instance of
the Marianas Islands the sale was valid, because according to the said Exhibit
Tuason-1, the judge of first instance of said Islands, "Acted with the witnesses
then present, Don Manuel Aflague and Don Juan del Rosario, in the capacity
of notary public" in the absence of this official in that district (emphasis
ours). The intervenors Barcinas, represented by Attorney Wolfson, have not
shown that on the date of the execution of the power of attorney, June 8,
1894, there was a notary in the City of Agaña; on the contrary, said Exhibit
Tuason-1 shows that there was no such notary in the district, hence, the
judge of first instance acted in that capacity. There being no notary, we
cannot insist that the power of attorney be executed before a notary. It was
sufficient that it be executed before the judge of first instance acting in the
capacity of notary public. Wherefore, the court is of the same opinion as the
referee, that the sale executed by the intervenors Barcinas, Exhibit Tuason-1,
in favor of the estate of Doña Teresa de la Paz is valid.
The appellants have not cited any law especially applicable to the Marianas
Islands at the time the power of attorney in question was executed, whereby
the intervention of a notary in the execution of said kind of document was
made absolutely necessary. In 1893 the present Civil Code was already in
force in the country, and the provisions thereof applicable to the subject are
as follows:
ART. 1710. An agency may be express or implied.
An express agency may be created by a public or private instrument or even
orally.
The acceptance may also be express or implied, the latter being inferred
from the acts of the agent.
ART. 1713. An agency created in general terms only includes acts of
administration.
In order to compromise, alienate, mortgage, or to execute any other act of
strict ownership, an express power is required.
The power to compromise does not give authority to submit the matter to
arbitrators or friendly adjusters.
The pertinent portion of section 335 of the Code of Civil Procedure, provides:
SEC. 335. Agreements invalid unless made in writing. — In the following
cases an agreement hereafter made shall be unenforceable by action unless
the same, or some note or memorandum thereof, be in writing, and
subscribed by the party charged, or by his agent; evidence, therefore, of the
agreement cannot be received without the writing, or secondary evidence of
its contents:
xxx xxx xxx
5. An agreement for the leasing for a longer period than one year, or for the
sale of real property, or of an interest therein, and such agreement, if made
by the agent of the party sought to be charged, is invalid unless the authority
of the agent be in writing and subscribed by the party sought to be charged.
It, therefore, follows that under the legal provisions above quoted, the power
conferred upon Manuel de los Reyes is valid although no notary public
intervened in its execution. And the sale executed by said attorney-in-fact is
likewise valid because in the execution of the corresponding deed the
essential requisites provided by law were complied with.
The above refuses appellants second, third, fourth assigned errors relating
to the validity of the power of attorney and the deed of sale of the
participations already referred to.
The first assignment does not specify any error committed by the court and
the appellants only make and re produce therein, as their own, the
assignments of error of the intervenors-appellants in G.R. Nos. 36811 and
36840. It is not incumbent upon us to consider seriously an assignment of
error of this nature, although the assignments of error made by the other
appellants will be considered and resolved in due time.
In resume, we find the four assigned errors of these appellants untenable.
G.R. No. 36840
APPEAL OF ESTANISLAOA ARENAS AND OTHERS
The herein appellants are likewise descendants of the founder of the
mayorazgo, Some of them directly sold to the defendants their
participations in one-fifth of the revenue and all their rights and interest in
the mayorazgo; the others are descendants of other relatives of the founder
who likewise sold their participations in one-fifth of the revenue and all their
rights and interest in the mayorazgo in favor of the same defendants. The
deeds evidencing the sales have been marked as Exhibits 2, 3, 4, 5, 6, 7, 10,
11 12, 13, 14, 16, and 17.
The appellants impugn all the sales as null and void and in their brief assign
the following errors:
I. The court erred in holding that, by the deeds of sale executed by the
intervenors-appellants, or their predecessors in interest, in favor of the
defendants and the predecessors in interest of the intervenors Legarda and
sisters, the participations of the former in the ownership and dominion of
one-fifth of the properties of the mayorazgo were sold and in not declaring
said sales null and void.
II. The court erred in finding that on the date of the execution of the sale
made by Israel Arenas the latter had no immediate successor and in
disapproving the report of the referee on this question.
III. The court erred in finding that Camila Tuason died after the year 1864,
when the Disentailing Statute took effect in the Philippines, and not in 1863
as found by the referee."
In support of the first assigned error, the following propositions are
advanced: (1) That the vendors intended to sell only their participations in
one-fifth of the revenue and, not the ownership or other rights which they
had in the mayorazgo, consequently, the sales were null and void for lack of
said vendors' consent; (2) that the purchasers were administrators or trustees
of the properties of the mayorazgo, and, therefore, fall under the prohibition
found in article 1459 of the Civil Code; (3) that the purchasers the spouses
Legarda, at the time they purchased the participations of some of the
intervenors, were legal administrators of the properties of the mayorazgo,
and, therefore, lacked the capacity to buy in accordance with the provisions
of the Novisima Recopilacion then applicable; (4) that the purchasers
obtained the vendors' consent through fraud, and (5) that the said are
moreover null and void under the express provisions of article 4, in
connection with article 3, of the Disentailing Matute, for lack of prior formal
appraisal and partition of the properties constituting the fifth of the
mayorazgo.
Considering the view we have taken in respect of the first assigned error, a
view which we will hereafter set forth, it would seem unnecessary to answer
the arguments advanced by the appellants. However, we will briefly state the
following:
After a careful examination of all the deeds of sale, we hold. as did the
referee and the court, that the vendors sold not only their participations in
the revenue but also all their rights and interest in the properties of the
mayorazgo. In other words, said vendors in fact sold their participations and
rights in the ownership of the mayorazgo, to which the one-fifth of the
revenue was converted in view of the enforcement of the Disentailing
Statute in the Islands.
The purchasers, strictly speaking, were not legal administrators or fiduciaries
of the rights sold to them by the vendors, at least in the sense in which the
prohibition then existing was expressed and established. As the court
correctly stated, the purchasers, in connection with the transactions, acted
as mere coproprietors or tenants in common, and the right to buy which they
then exercised was expressly recognized by law.
The fraud imputed to the purchasers has not been proved; the evidence
shows that the vendors had full knowledge of the rights which they sold and
that thereby they conveyed to the vendees all the interest which they could
have in the mayorazgo.
And with respect to the lack of formal appraisal and partition of one-fifth of
the properties of the mayorazgo, prior to the sales, requisites found in article
4, in connection with article 3, of the Disentailing Statute, it is sufficient to
state our opinion that non-compliance therewith should not produce either
the effect or the meaning attributed to them by the appellants. It seems to
us that the court was right in interpreting that the appraisal, partition, and
intervention of the immediate successor are required only in cases in which
the actual possessor of properties or the one who receives the revenue
desires to dispose of his participations in a specific and particular form, but
not when, as in the case under consideration, undivided and indeterminate
rights or participations were sold. In case of an hereditary estate, for
instance, a coheir may sell his successory right, although undetermined,
without the necessity either of a prior appraisal or partition of said estate or
notice to or intervention by the other coheirs.
We will now briefly state the view we have taken of the first assigned error.
The most recent sales impugned were made between the year 1905 and 1910;
the oldest deeds were executed between the years 1891 and 1898. On the
other hand, the appellants challenged the validity of said sales for the first
time in January and February, 1929. Theretofore, at least, nineteen years had
elapsed as to the sale effected in 1910. We hold that the lapse of the period
of nineteen years is more than that required for the prescription of the action
of annulment began by the appellants through their complaints of
intervention, and in support of this holding we recur here to all that we said
on the subject in resolving the appeal interposed by the intervenors Legarda.
We are likewise of the opinion that the appellants are now barred from
claiming any right in connection with said sales under the doctrine of
estoppel by laches. We repeat what we said on this point in the appeal of
the Legardas, to the effect that the validity of sales may not be questioned
anew after the purchasers have enjoyed the participations sold and the fruits
thereof for many years.
The second and third assigned errors refer to the sales made by Isabel Arenas
and Alejandro Camacho and brothers, respectively. The intervenor-appellant
Rafael Arenas contends that the sale executed by his mother Isabel Arenas
is null and void as to one-half because said vendor had an immediate
successor at the time of the sale. The Camachos, in turn, allege that the sale
they executed is likewise null and void as to one-half because, contrary to
the finding of the court, they were the ones who received the revenue at the
time the Disentailing Statute took effect, and they contend in this connection
that their mother Camila Tuason died in 1863 and not after 1873, as found
by the court. We do not find it necessary to discuss the question of fact thus
raised, because in both cases prescription and the rule of estoppel by laches
are applicable against the appellants. On both grounds we rule that the
appellants may not now question the validity of the aforesaid sales.
It follows from what has been said that the three errors assigned by the
appellants are overruled as not well-founded.
G.R. No. 36872
APPEAL OF THE DEFENDANTS AUGUSTO H. TUASON Y DELA PAZ AND
OTHERS
This appeal is interposed by the defendants who were the possessors of all
the properties of the mayorazgo at the time the principal case was instituted
and before the Bank of the Philippine Islands was appointed receiver. Said
appellants impute to the appealed decision and order the following error:
FIRST ERROR
The lower court erred in not passing upon certain vital issues on the ground
that they had been definitely concluded.
SECOND ERROR
The trial court erred in not finding that the fifth part of the mayorazgo
belongs in fee simple to the defendants.
THIRD ERROR
The trial court erred in distributing the fifth part as follows: three-eighths
thereof among all the descendants of the founder (including those of the
first possessor of the mayorazgo) per stirps of great grandchildren, including
those who have already died; and the remaining five eighths among the
descendants of the five younger children of the founder who died leaving
succession, distributing the same per stirps of said children.
FOURTH ERROR
The trial court erred in not finding that the plan of distribution more in
conformity with the provisions of article 4 of the Disentailing Law, would be
to assign to each recipient (whether plaintiff or intervenor) a portion of the
one-fifth of the entail in the proportion that the pension which he used to
receive bears to the net income of the fifth on the entail.
FIFTH ERROR
The trial court erred in not distributing the three-eights exclusively among
the defendants.
SIXTH ERROR
In case the preceding assignment of error be over ruled, we respectfully
submit that the trial court erred in distributing the three-eights in equal
portions per stirps of the great great grandchildren (tataranietos), including
those who have already died, instead of distributing the same only among
those that are living, or, more properly, instead of distributing the same per
stirps of the children of the founder.
SEVENTH ERROR
The trial court erred in not finding what is the value in pesos of the different
participations assigned to the different parties in this case.
EIGHT ERROR
The trial court erred in not finding that the plaintiffs having filed a personal
action against the defendants asking judgment in the sum of five hundred
thousand pesos (P500,000), for damages which the said parties agreed were
the value of the one-half of the so-called family trust are now barred to claim
participation in the properties them- selves thereby converting the action
into one in rem.
NINTH ERROR
The trial court erred in finding that the sales executed by Mariano Arenas,
Estanislaoa Arenas, Julio Tuason, Severino, Tuason, Encarnacion Rojo and
Candelaria Rojo were null and void as to one-half thereof.
TENTH ERROR
Assuming that the said sales as to one-half thereof should be declared null
and void, the trial court erred in not condemning the sellers or their
successors in interest to return one-half of the price received by them from
the purchasers, plus the legal interest thereof the time of the sale.
ELEVENTH ERROR
The trial court erred in finding that the sales executed by the intervenors or
their predecessors in interest of any rights that they might have had in the
fifth of the mayorazgo in question, did not cover the right that they had to
participate in the three eighths which originally correspond to the three
younger children of the founder who died without leaving succession.
TWELVE ERROR
The trial court erred in not requiring the referee to file an amended report
in conformity with the order of the trial court dated April 9, 1931.
By way of preliminary observation we will state that it is not our intention to
hold that the questions raised by the appellants in their first, second, third,
fourth, fifth, sixth, and eighth assigned errors are res judicata because they
have been submitted, discussed at length, and resolved in the decision
rendered in the principal case, because we believe this to be unnecessary;
but we understand, and so decide, that unless it is shown that said questions
have been erroneously resolved and that there exist sufficient reasons
justifying that we renounce the conclusions already reached, it is our duty to
adhere to them and to apply the principles laid down in the aforesaid
decision in so far as they are applicable to the same points raised anew in
the instant appeal.
The first assignment does not specify any error committed by the court,
hence, we are not bound to resolve any specific question; but in the
development of the idea which the appellants have apparently attempted to
bring out, they argue in synthesis that in the resolution granting a new trial
this court again left open for discussion the same points already considered
and resolved as well as the new ones which the parties may desire to raise in
the aforesaid new trial. An examination of said resolution, however, shows
just the contrary. In the said resolution the following language was
employed.
Counsel for defendants insist upon their contentions maintained from the
beginning and disposed of in our decision. They raise some points in their
briefs, however which require a few brief-remarks. (Baretto vs. Tuason, 50
Phil., 888, 959.)
xxx xxx xxx
Resolving, therefore, said motion for reconsideration, we reiterate the
following conclusions, declaring finally:
(1) That the first-born possessor of this mayorazgo was a mere usufructuary
of the entailed properties.
(2) That this mayorazgo was a fideicamiso.
(3) That the charge to distribute the fifth of the revenues from said
properties was a family trust.
(4) That article 4 of the Disentailing Law of October 11, 1820 is applicable to
the present case.
(5) That the fifth of the properties into which, by virtue of said law, the fifth
of the revenue was converted on March 1, 1864, when the Disentailing Law
became effective in the Philippines, has remained and subsists as a
fideicomiso up to the present date.
(6) That the plaintiffs' right of action has not prescribed.
(7) That the registration of the entailed properties under Act No. 496 must,
with respect to the fifth of the said properties conserved up to the present
time as a fideicomiso, be held to have been made in favor of the beneficiaries
of said fifth part.
(8) That the plaintiffs, as well as any other descendants of the founder, are
entitled to participate in the fifth of the properties of this mayorazgo in
accordance with the sixth clause of the deed of foundation and article 4 of
the Disentailing Law.
(9) The pronouncements made in our decision with respect as to the amount
of the participation of each claimant shall be set aside in view of the motions
of the intervenors which we about to examine. (Ibid., pp. 963, 964.)
No clearer and more categorical language could have been employed to
express the intention of the court to adhere to and reiterate the conclusions
and principles already established in the decision originally rendered,
notwithstanding the motion of reconsideration and new trial. Neither can
there be any doubt as to the questions which the court considered definitely
resolved and which should not be the subject of further discussion.
That this court did not intend to allow the parties to raise anew the
fundamental questions already resolved, and that the new trial should be
limited exclusively to a determination of the amount to which the
intervenors could be entitled in the fifth of the properties, is clearly shown
by the following quoted paragraphs which form a part of the order found in
the aforesaid resolution:
(a) That the motion for reconsideration filed by counsel for the defendants
is denied in so far as it is incompatible with the fundamental conclusions we
have arrived at in the present cause and enumerated in the preceding
resolution.
xxx xxx xxx
(e) That said Court of First Instance proceed to try this cause and render
judgment as to the amount to which the original parties and those who may
intervene may be en titled as their participation in the fifth of the properties
of this mayorazgo. (Ibid p. 966.)
Defendants-appellants intimate that the said resolution is without legal force
because it was not concurred in by a sufficient majority of the members then
composing this court. A sufficient answer to this is, that the aforesaid
resolution was authorized and concurred in by eight of the nine members
then composing this court.
In the second assigned error, the appellants again insist that the naked
ownership of the fifth of the properties of the mayorazgo belongs to them.
This question was already definitely resolved in the decision as well as in the
resolution on the motions of reconsideration and new trial wherein was
stated:
Counsel for defendants allege that the properties of this foundation passed
into the hands of the heir, Jose Victoriano Tuason, completely free, one-half
by testamentary inheritance and the other half by virtue of article 2 of the
Disentailing Law. This, however, was not the will of the testator, Don Jose
Severino Tuason, nor the will of his successors, all of whom respected the
mayorazgo and held it as subsisting de facto. In no event could the
properties pass into the hands of the heir Jose Victoriano Tuason completely
free. It was necessary to preserve them intact until they were appraised and
the fifth part thereof had been segregated for distribution among the
recipients of the revenues and their immediate successors, in accordance
with the provisions of article 4 of the statute.
It is a fact that the trust subsisted and still subsists. The successive possessors
of the entail have preserved and preserve the properties of the mayorazgo
respecting and distributing the fifth of the revenue among the descendants
of the younger children of the founder.
But the entail could not and cannot continue perpetually. Its abolition was
decreed by the statute as of the 1st day of March, 1864. Its perpetual survival
would be contrary, not only to the Disentailing Law of October 11, 1820, but
also the Civil Code in force which, under articles 781 and 785, paragraph 2,
positively prohibits perpetual entails.
If up to the present time the entail in question subsists, this has been because
the interested parties have been maintaining it without proceeding to the
appraisal and distribution of the entailed properties, as required by articles
2 and 4 of the Disentailing Law; and in accordance with the doctrine
announced by the Supreme Court of Spain on October 29, 1857, above cited,
the properties of this mayorazgo, pre served de facto by the interested
parties as entailed, legally retain this character for the purposes of their
partition which must be effected in accordance with the statute of October
11, 1820.
From what has been said it follows that since March 1, 1864, the date upon
which the said Disentailing Law came into force in the Philippine Islands, the
successive possessors of the properties of this mayorazgo constituted
themselves trustees, charged with the administration and preservation of the
said properties and the distribution of the fifth of the revenue among the
descendants of the younger children of the founder. Consequently, after the
entail was abolished, one-half of the four-fifths of the proof Asgo continued
subject to the trust in favor of its beneficiaries, the heirs of Jose Victoriano
Tuason, who was the one called to succeed immediately to the mayorazgo
on the date of its disentailment (article 2, Statute), and the fifth of the said
properties in favor of the beneficiaries, the recipients of the fifth of the
revenue in accordance with the foundation.
Summing up the effects produced with respect to this mayorazgo by the
Disentailing Law on the one hand, and the conduct of the interested parties
on the other, we may say first, that the trust of the naked ownership
instituted in favor of the descendants of the founder indefinitely was
abolished, in consequence of the disentailment; and second, that the trust
of the usufruct of the properties became converted into a trust of the
properties themselves, the beneficiaries being the same, but as owners; that
is to say, the first-born successor as to one-half of four-fifths of the said
properties, and the descendants of the younger children of the founder with
respect to the remaining fifth. (Ibid., pp. 936-938.)
Resolving, therefore, said motion for reconsideration, we reiterate the
following conclusions, declaring finally:
xxx xxx xxx
(5) That the fifth of the properties into which, by virtue of said law, the fifth
of the revenue was converted on March 1, 1864, when the Disentailing Law
became effective in the Philippines, has remained and subsists as a
fideicomiso up to the present date.
xxx xxx xxx
(7) That the registration of the entailed properties under Art No. 496 must,
with respect to the fifth of the said properties conserved up to the present
time as a fideicomiso, be held to have been made in favor of the beneficiaries
of said fifth part.
(8) That the plaintiffs, as well as any other descendants of the founder, are
entitled to participate in the fifth of the properties of this mayorazgo in
accordance with the sixth clause of the deed of foundation and article 4 of
the Disentailing Law. (Ibid., pp. 963, 964.)
The arguments now advanced by the appellants in sup port of their second
assigned error are not entirely new because they were already brought out
when the question was submitted and discussed in the principal case and we
do not find therein any weighty reasons justifying our repudiation of the
conclusions and principles established in the decision rendered in the
original case.
The third, fourth, fifth, and sixth assigned errors may be jointly considered
because they all refer to the distribution of the one-fifth of the properties.
In the paragraphs here after quoted of the original decision, it will be seen
that the distribution of the fifth and those entitled to it under the instrument
of foundation were already dealt with and resolved:
PERSONS ENTITLED TO THE REMEDY
The recipients of the fifth of the revenues are indicated in the sixth clause of
the instrument of foundation, the text of which we again transcribe:
"It shall be his duty to set apart one-fifth of the net revenue derived from
the entail each year, and that one-fifth part shall be divided into eight parts,
giving one to each of my eight children, and in their absence, to my
grandchildren, but upon the understanding that if one or more of my
children should die without succession, the part belonging to them shall be
distributed among my children and other descendants of mine according to
their needs and as prudence may dictate to him, so that, when the time
arrives that none of my children are alive, it shall then be always understood
that said fifth part shall be applied to all those of my descendants who are
poor, the apportionment to be made by him prudently according to their
needs and therefore the possessor of the entail is hereby charged to
discharge this duty with conscientious scruple." (Ibid., pp. 941, 942.)
xxx xxx xxx
If the descendants of the younger children, subsequent to the grandchildren
of the founder, are granted under certain circumstances the right to possess
the mayorazgo itself, with all its properties, we do not see how it can be said
that these descendants, subsequent to grandchildren, the sons of sons, were
prohibited from receiving a fifth of the revenues of said properties.
It is our understanding that the intention of the founder was not to restrict
the grant of the usufruct of the fifth of the revenue by limiting it to a certain
number of generations of the younger children, but that he intended to
extend it to all of the descendants of the latter. If this is so we should apply
to the case the rule of law of the Partidas (Rule 28, Title 34, 7th Partido),
which says: "Privilegia recipiunt largum interpretationem voluntati consonan
concedentis." (Privileges are to be interpreted with liberality in accordance
with the will of him who grants them.)
Furthermore, that the present plaintiffs are entitled to receive the fifth of the
revenues has been repeatedly recognized by the defendants when they
purchased, in 1905, from Don Jose Rocha y Ruiz, and in 1916 from Doña
Remedios Aragon y Rocha their respective participations in the fifth of the
revenue, according to paragraph 16 of the stipulation of facts, and while in
the years 1917 to 1921 the said defendants delivered to Don Antonio Maria
Barretto y Rocha, and to Don Santiago, Don Julio and Don Andres Rocha y
Ruiz Delgado, and their sister, Doña Rosario; and in the years 1917 to 1922,
to Doña Isabel, Doña Enriqueta, Doña Carmen, Don Antonio, Don Alfredo
and Don Clodoaldo Rocha y Pereyra, Don Francisco Beech y Rojo, Don
Ciriaco, Don Cayetano, Don Pablo Leon and Don Tomas Tuason, and to the
minors Doña Consuelo, Don Juan, Doña Rosario and Doña Carmen Tuason,
and Doña Victoria Rufina, Doña Ana Consolacion Tuason, and Doña
Asuncion Romana Tuason widow of Caballero, their respective participations
in the fifth of the revenue, as appears from the cross-complaint of the
defendants, admitted in para graph 8 of the stipulation of facts.
And it appears that the said Don Jose Rocha y Ruiz was the son of Don
Lorenzo Rocha, a grandson, in turn, of Doña Gregoria N. Tuason (Exhibit 6
and paragraphs 2 and 16 of the stipulation of facts): that Doña Remedios
Aragon y Rocha is a relative of the founder (Exhibit 7, admitted in paragraph
16 of the stipulation of facts) ; and that the said recipients of the fifth of the
revenue from the year 1917 to 1921 and from the year 1917 to 1922, are all
descendants of grandchildren of the younger children of the founder.
(Paragraphs 2 to 30, admitted in paragraph 1 of the stipulation of facts.)
(Ibid., pp. 944, 945.)
xxx xxx xxx
Passing to the amount of the Participation which is due them respectively,
for the purpose of determining this point we must have regard to the
intention of the founder, as it is expressed in the instrument creating the
mayorazgo. It was his will that the fifth of the revenue should he divided into
eight parts, and that to each of his children, other than his first born, one
part should be given. Upon the death of each of these children, by virtue of
the provisions of the instrument of foundation, and by operation of law, their
right to an eighth part of the revenue which they received during their
lifetime was transmitted to their heirs. That is, each of these eight portions
of the fifth of the revenue was transmitted from succession to succession,
within the stirps of each of the eight younger children who died leaving
succession. The heirs of a younger son or daughter could legally participate
in the eight part corresponding to another stirps, as long " heirs in the direct
line of this stirps survived; that is to say, each of the eight portions of the
fifth, except those corresponding to young children born without succession.
The heirs of a younger child could not legally participate in the eight
corresponding to another stirps, while heirs of this stirps in, the direct line
survive. That is to say, each one of the said eight parts of the fifth, except
those corresponding to the younger children dying without succession, was
preserved and transmitted from generation to generation within each
respective stirps.
This plan of division of participation, based upon the will of the founder and
the precepts of the law, is that which in our judgment must continue to
prevail, and is that which we shall follow in determining the proportion which
corresponds to the plaintiffs in the half of the fifth of the properties of this
foundation.
Of the eight younger children four died without sucession and the other four
are the descendants of the plaintiffs in this cause. Hence, four of the eight
portions, that is, one-half of the fifth of the properties of this foundation,
belong to the plaintiffs herein under the plan of division which has just been
indicated. The other four portions, that is, the one-half of the said fifth, which
would have corresponded to the stirps of the other four younger children, if
they had died leaving succession, accrue, so to speak, both to the defendants
of the younger children leaving succession and to the other descendants of
the founder.
The distribution of this accretion is made in obedience to a plan distinct from
that above indicated, because the founder, foreseeing the contingency, did
not prescribe a quota for each stirps of his younger children, but ordered
that it he delivered to descendants of both classes without distinction of line
or stirps. Consequently, this one-half in accretion should be distributed
among the descendants of the founder in general, who are the plaintiffs and
some of the defendants, but bearing in mind the different rights with which
each heir participates, by reason of the greater or lesser proximity of his
relationship to the founder, for the purpose of determining if he is to inherit
per capita or per stirpes. We say some of the defendants, because with the
exception of the ten mentioned in paragraph 5 of the complaint, the other
defendants are either persons whose relationship has not been determined
(paragraph 6 of the complaint) or have refused to become parties to this
action (paragraph 30 of the complaint).
From what has been said it follows that one-half of the fifth of the properties
corresponding to the younger sons leaving succession, four-fortieth parts
(4/40) of the whole of the properties of this foundation must be divided into
four equal portions, because one portion, or one-fortieth part (1/40)
corresponds to each stirps of the said four younger children. The other one-
half of the said fifth, that is to say, the other four-fortieth parts (4/40) of the
whole of the properties of this foundation must be distributed in general
among the plaintiffs and some of the defendants, taking into consideration
the circumstances of their respective heirships. (Ibid., pp. 946-948.)
The foregoing paragraphs contain conclusions of fact and of law established
after a careful study of the provisions found in the foundation and of the
laws applicable to the case, and are squarely applicable to the facts recently
proved at the new trial, except that five-eighths of the fifth should be divided
among the descendants of the five (5) younger children with succession and
the remaining three-eighths of the fifth among the relatives in general of the
founder, because it developed that the younger daughter Eustaquia Ma.
Tuason had left heirs, contrary to the stipulation of the plaintiffs and the
defendants.
The arguments advanced by the appellants in support of said assignments
of error do not justify, in our opinion, a different result from that already
reached; in truth they are merely repetitions of the same arguments already
brought out by counsel for the same appellants.
In the seventh assigned error, it is contended that the court erred in not
reducing the respective participations of the parties to figures or pesos. It is
true that the court did not undertake the arithmetical operations involved
there in. but we cannot conceive of this as an error subject to modification
or reversal, in view of the fact that there was then no necessity therefor, and
that such work could be easily entrusted to the referee after this decision has
become final and the records remanded to the court.
By their eighth assigned error the defendants-appellants again reproduce
their original special defense to the effect that the plaintiffs could not
convert the personal action for damages which they had originally
commenced into an action in rem, and that said plaintiffs are barred from
claiming any participation in the properties of the mayorazgo.
This point was likewise considered and resolved in the decision in the
principal case, wherein it was said:
In addition to the arguments mentioned heretofore, counsel for defendants
interpose as obstacles to the action of plaintiffs the registration of the title
to the properties of the mayorazgo in favor of the defendants, mentioned in
paragraph 11 of the first special defense, under Act No. 496, and the
prescription of this action. The defendants Doña Paz Tuason de Gonzales,
Doña Consuelo Tuason de Quimson, Don Juan Tuason and Doña Albina
Tuason inter pose as a defense to this action the contention that the
plaintiffs filed no claim whatever in the proceedings had upon the
testamentary estate of Don Juan Jose Tuason de la Paz, the father of the said
defendants. which testamentary proceedings were finally disposed of and
filed June 25, 1920.
If, as we have found and decided, the successive possessors of the properties
of this mayorazgo were and have been mere trustees of the said properties,
holding them in trust for the benefit of the beneficiaries, part of whom are
the recipients of the fifth of the revenues, and their descendants, the
registration of the title to said properties under Act No. 496 in favor of the
said defendant must be deemed to have been effected for the benefit of the
beneficiaries of said properties, part of whom are the present plaintiffs. The
doctrine established by this court in the case of Severino vs. Severino (44
Phil., 343), is applicable to this feature of the case.
Although the plaintiffs endeavored to demonstrate that the said defendants
registered the title by fraud, it is our opinion that the alleged fraud has not
been proven in this action. Nevertheless, the existence of fraud is
unnecessary to arrant the declaration that registration of the Title under Act
No. 496 is not a legal obstacle to this action brought by plaintiffs, and the
adjudication in favor of those among them who are entitled thereto of the
portion pertaining to them of the properties so registered. It was said in the
case of Gilbert vs. Hewetson (79 Minn., 326), cited with approval in the case
of Severino vs. Severino, supra:
"A receiver, trustee attorney, agent, or any other person occupying fiduciary
relations respecting property or per sons, is utterly disabled from acquiring
for his own benefit the property committed to his custody for management.
This rule is entirely independent of the fact whether any fraud has
intervened. No fraud in fact need be shown, and no excuse will be heard
from the trustee." (Emphasis ours.)
With respect to the plea of prescription, counsel for defendants contend that
inasmuch as plaintiffs, prior to the filing of the present complaint, had made
no effort to enforce their rights since the 1st day of March, 1864, their action
is barred. But from the records it that up to the year 1922 the defendant have
been recognizing in the entries in their books, and in deeds, such as Exhibits
6 and 7, signed by Don Augusto Tuason de la Paz, as grantee, the right of
the descendants of the younger children of the founder to the fifth of the
revenue, and therefore the trust which this charge implies; furthermore, said
defendants made payments on account of the fifth of the revenue. These
acts of recognition and payments, made during the said period of time,
prevent the operation of prescription. Section 50, Code of Civil Procedure.)
Furthermore, this being a case which deals with a trust which subsisted from
the time of its foundation and by virtue thereof up to March 1, 1864, and
thereafter down to the present time by the express will of the present parties,
the defense of prescription cannot be entertained. By virtue of the said trust
the possession of the said defendants could not be regarded as a basis for
an acquisitive prescription in their favor against the plaintiffs because such
possession has not been nor is it under claim of ownership, but a title held
in the name and on behalf of the beneficiaries, some of whom are the
plaintiffs in general. For this reason the defense of prescription cannot be
enforced between the trustee and the beneficiaries while the trust relations
continue, as was impliedly held in the case of the Government of the
Philippine Islands vs. Abadilla (46 Phil., 642.) (Ibid., pp. 938-940.)
Strictly speaking there was no alteration in the nature of the action then
commenced by the plaintiffs. They claimed indemnity for damages in the
amount of half a million pesos believing that the registration of the real
properties of the mayorazgo in favor of the defendants and the issuance of
the corresponding certificates of title, made the latter the exclusive owners
thereof; but this court held that a trust being involved, the titles should be
under stood as issued in favor of all the co-proprietors, among them the
plaintiffs, and in view of this ruling the plaintiffs were declared entitled, not
to an indemnity, but to a participation in one-fifth of the aforesaid
properties. From this it follows that, although the plaintiffs were granted a
relief different from that they had asked for, the rights which they invoked
from the very beginning and upon which they based the action which they
began, were, nevertheless, the same to wit, their rights as relatives or
descendants of the founder of the mayorazgo. They erred in the choice of
the remedy to which they were entitled, but they did not change the
essential ground of the action. In either case the right which they wanted to
enforce was the same, but it developed that the adequate remedy was not
the, one they asked for but that granted to them by the court.
In their ninth assigned error the appellants contend that the court erred in
declaring null and void as to one-half the sales of their participations
executed by the intervenors Mariano Arenas, Estanislaoa Arenas, Julio
Tuason, Severino Tuason, Encarnacion Rojo, and Candelaria Rojo in favor of
the said defendants-appellants.
The referee in fact declared said sales null and void as to one-half, either
because the vendors were the ones who received the revenue or because
they had immediate successors at the time the Disentailing Statute took
effect in the Islands. The court sustained the referee.
Without going into an extended discussion, we rule that the said
intervenors-vendors cannot now question the validity of the aforesaid sales
because their action has pre scribed and they are now in estoppel by laches.
All that we said in this connection in the appeal of the Legardas may be taken
as reproduced herein. The most recent sale was made in 1916 and the first
complaint of intervention questioning the validity of the sales was filed in
1926, that is, after the lapse of more than ten years. During all this time the
defendants were in the enjoyment of the said participations without any
protest or claim of any kind from any of the vendors. The time that has
elapsed is more than that required for the prescription of the action to annul
the sales, and estops the intervenors-vendors from questioning their validity.
We find the error assigned tenable.
The tenth assigned error requires no discussion because it was made
conditionally, that is, in the event that the preceding one is not well-founded
and is not sustained.
Various intervenors or their predecessors sold their participations in the fifth
of the mayorazgo which came from the younger children with succession as
well as from those without succession, favor of the defendants. The referee
last appointed was of the opinion that the sales of the participations which
came from the younger children with succession, were valid, but not those
which came from the younger children who died without succession. In its
decision the court disapproved this conclusion and held that all the sales
were valid. But in its order of April 8, 1931, in passing upon different motions
of reconsideration, it concurred in the opinion of the referee and ruled that
the sales of the participations coming from the younger children without
succession were null and void because undetermined rights were
transmitted thereby.
We rule that the eleventh assigned error is well founded and that the sales
in question are as valid as those made of the participations coming. from the
younger children with succession. And on this point we repeat what we
already said in the appeal of the Legardas, in resolving a similar case, that
pursuant to the provisions of article 657 of the Civil Code, successory rights
are transmitted from the death of the person leaving the hereditary estate,
where fore. it cannot be said that in the aforementioned sales undetermined
rights were conveyed. It is true that on the dates of the sales, the amount of
the participations sold were not yet determined, but doubtless it could be
fixed and reduced to figures through the appraisal and liquidation provided
for by the Disentailing Statute.
The twelve and last assigned error states that the court should have required
the referee to file an amended report pursuant to the order of April 8, 1931.
The error, if any is no ground for either modification or reversal. There is no
doubt that the referee should file his amended and final report, but this may
be prepared and submitted for approval after the appeals have been
disposed of and the present decision has become final. We find no merit in
this assigned error.
Summarizing what has been said in connection with this appeal we have:
1. That the first, second, third, fourth, fifth, sixth, seventh, eight, tenth and
twelfth assigned error are without merit and must be as they are hereby
overruled;
2. That the sales executed by Mariano Arenas, Estanislao Arenas, Julio
Tuason, Severino Tuason, Encarnacion Rojo and Candelaria Rojo in favor of
the defendants are valid in their entirety; thereby sustaining the ninth
assigned error; and
3. That the sales executed by certain intervenors or their predecessors of
their participations coming from the younger children without succession, in
favor of the defendants, are valid; thereby sustaining likewise the eleventh
assigned error.
JUDGMENT
In view of all the foregoing considerations, and disposing finally of all the
appeals interposed, it is ordered:
In case G.R. No. 36811
1. That the appealed decision and order be amended, in the sense that the
sales executed by Tomasa Tuason de Tobias, Luis Tuason, and Pedro Tuason,
in favor of the intervenors Legarda, are valid, and that the participations sold
thereby should be adjudicated in favor of said purchasers;
2. That the appealed decision and order be modified, in the sense that the
sales executed in favor of the intervenors Legarda of the participations
coming from the younger children without succession, are valid, and,
consequently, said participations should be adjudicated in favor of the said
intervenors;
3. That the appealed decision and order be modified, in the ant of Santos
Luciano Tuason, should be adjudicated in favor of the intervenors-
appellants, and
4. That the appealed decision and order, in so far as they have been affected
by the appeal interposed but have not been modified, are hereby affirmed;
In case G.R. No. 36827
1. That the aforesaid appealed decision, in so far as it has been affected by
the appeal interposed by the intervenors-appellants in this case, is hereby
affirmed;
In case G.R. No. 36840
1. That the decision of the court is hereby affirmed in so far as it has been
affected by the appeal interposed in this case by the intervenors-appellants
Estanislaoa Arenas and others;
In case G.R. No. 36872
1. That the appealed decision and order are hereby amended, in the sense
that the sales executed by Mariano Arenas, Estanislaoa Arenas, Julio Tuason,
Severino Tuason, Encarnacion Rojo, and Candelaria Rojo, in favor of the
defendants-appellants, are valid in their entirety, and consequently. the
participations transferred thereby should be adjudicated to the said
purchasers.
2. That the said appealed decision and order be amended in the sense that
the sales executed in favor of the defend ants-appellants of the
participations coming from the younger children without succession, are
valid in their entirety, and therefore, said participations should be
adjudicated in favor of said defendants-appellants; and
3. That the said decision and order in so far as they have been affected by
the appeal interposed in this case but have not been modified. are hereby
affirmed.
It is likewise ordered that the court of origin take the necessary steps looking
to the adjudication and distribution among the parties entitled thereto of
their respective participations, to the end that this mayorazgo case may be
definitely closed.Without costs in this instance. So ordered.
[G.R. No. 39547. May 3, 1934.]
In re Intestate estate of the deceased Francisco Tordilla, GAUDENCIA
TORDILLA, Petitioner-Appellee, v. MOISES TORDILLA, opponent-appellant.
1. DESCENT AND DISTRIBUTION; PROPERTY SUBJECT TO COLLATION;
ASSESSMENT OF PROPERTY DONATED. — Appellant’s contention in his third
assignment of error that, where certain value is stated in a deed of donation,
that value cannot be questioned when the properties are brought into
collation, is incorrect, as article 1045 of the Civil Code provides for the
assessment of the property at its actual value at the time of the donation.
The actual value at the time of the donation is a question of fact which must
be established by proof the same as any other fact.
2. ID.; ID.; FRUITS AND INTEREST. — The fruits and interest produced by
property subject to collation must be ascertained under article 1049 of the
Civil Code. (See Guinguing v. Abuton and Abuton, 48 Phil., 144.)
3. ID.; CONTRACTS WITH RESPECT TO FUTURE INHERITANCE. — The second
portion of contract Exhibit H clearly relates to the anticipated future
inheritance and, therefore, is null and void under the provisions of article
1271 of the Civil Code.
4. ID.; ARTICLE 840, CIVIL CODE, STILL IN FORCE. — The attention of the
court was not called to any case in which article 840 of the Civil Code has
been treated as entirely and completely repealed, and In re Intestate Estate
of Tad-Y (46 Phil., 557), followed.
This is an appeal from a decision of the Court of First Instance of Camarines
Sur providing for the distribution of the estate of one Francisco Tordilla, who
died intestate in Naga, Camarines Sur, on December 18, 1925, leaving as his
only heirs his widow, a legitimate son, the defendant and appellant, and a
recognized natural daughter, petitioner and appellee.
It might be said by way of introduction that the record is voluminous and
that many questions of fact could have been clearly established by direct
means rather than to leave the question in doubt by presenting only
circumstantial evidence. This is especially true as to the first and second
assignments of error which read:jgc:chanrobles.com.ph
"I. In including in the partition that residential lot containing 3352 square
meters and more fully described as parcel (2) in the decision (69-70 R. A.) .
II. In including ten (10) carabaos and six (6) cattle (Items 8 and 9 in Dec. at
pp. 70-71 R. A.) among the properties partitioned and in not holding that
said animals do not exist and never came to the possession of the
estate."cralaw virtua1aw library
In a prior proceeding between the deceased and a third party, the third party
was given a right to repurchase the land there in question. But the fact,
standing alone, does not remove the lot from the properties left by the
deceased. The fact is whether or not the third party had exercised his option
to repurchase. That fact was well known to appellant and was easily
susceptible of definite and accurate proof. He has seen fit to leave the record
in doubt and, therefore, the finding of the trial court will not be disturbed.
The same remarks are true as to the number of carabaos and cattle that the
deceased had at the time of his death.
The contention of appellant in the third assignment of error is that, where a
certain value is stated in a deed of donation, that value cannot be questioned
when the properties are brought into collation. This is incorrect, as article
1045 of the Civil Code provides for the assessment of the property at its
actual valuation at the time of donation. The recital in the deed cannot
therefore be controlling. The actual value at the time of the donation is a
question of fact which must be established by proof the same as any other
fact.
The fourth assignment of error is not well taken. The original testimony was
taken by a commissioner, and the report of the commissioner with the
evidence was stricken from the files on motion for appellant. Thereafter the
parties agreed to submit the case for the decision of the trial court on the
evidence taken by the commissioner. Such a procedure waived the
erroneous ruling on evidence by the commissioner. The appellant should
have reserved the right to introduced additional evidence and should have
tendered the proper evidence in the trial court. The trial court, with much
experience, and after study of the evidence produced, held that the actual
value of one of the properties was greater than that recited in the deed of
donation, and also fixed the fruits and income from the donated properties
at a higher figure than appellant thought just. The fruits and interest
produced by property subject to collation must be ascertained under article
1049 of the Civil Code. (See Guinguing v. Abuton and Abuton, 48 Phil., 144.)
There is some doubt in our mind as to the real value of the parcel in question
and the amount of the income from the donated properties. But we cannot
state from the fragmentary evidence which has been brought to our
attention that the opinion of the trial court is contrary to the weight of the
evidence, and, in case those figures are incorrect, what are the correct
figures.
On the questions of fact dealt with in the fifth and sixth assignments of error,
after due consideration, we have determined to be guided by the judgment
of the trial court.
The seventh, eighth, and ninth assignments of error refer to the validity of
Exhibit H, a contract entered into between the appellee and the appellant in
another case and signed shortly before the death of their father. The contract
is in the nature of a compromise and covered two items, namely, first, the
support of the natural daughter which the brother agreed to assume for one
year and, second, a proposed division of their future inheritance upon the
death of their father. It is assumed that appellant has complied with his terms
of the contract, and the father died before the obligation of the brother
terminated. The second portion of the contract Exhibit H clearly relates to
the anticipated future inheritance and, therefore, is null and void under the
provisions of article 1271 of the Civil Code which reads:jgc:chanrobles.com.ph
"ART. 1271. All things, even future ones, which are not out of the commerce
of man, may be the subject-matter of contracts.
"Nevertheless, no contract may be entered into with respect to future
inheritances, except those the object of which is to make a division intervivos
of the estate, in accordance with article 1056.
"Any services not contrary to law or to good morals may also be the subject-
matter of a contract."cralaw virtua1aw library
The action of the trial court in holding Exhibit H to be uncontroverted and
predicating its final action on the terms of that document was erroneous and
contrary to law.
The tenth assignment of error reads: "In adjudicating to the natural daughter
the same share or amount of properties as that adjudicated to the legitimate
son." This assignment of error is based on article 840 of the Civil Code which
provides:jgc:chanrobles.com.ph
"ART. 840. When the testator leaves legitimate children or descendants, and
also natural children, legally acknowledged, each of the latter shall be
entitled to one-half of the portion pertaining to each of the legitimate
children who have not received any betterment, provided that a sufficient
amount remains of the disposable portion, from which it must be taken, after
the burial and funeral expenses have been paid.
"The legitimate children may pay the portion pertaining to the natural ones
in cash, or in other property of the estate, at a fair valuation."cralaw
virtua1aw library
Appellee contends that article 840 of the Civil Code has been repealed by
the Code of Civil Procedure, based on the statement of this court in
Concepcion v. Jose (46 Phil., 809). It is true that in the majority decision in
that case it speaks of article 840 being repealed. While, with the question
there considered, namely, from where the funeral expenses should be taken,
the Code of Civil Procedure changed the rule as to those items from what
had formerly been in the Civil Code, by reading the whole decision we have
no hesitancy in saying that what the court then had in mind was not a repeal
of the article but in fact merely a modification thereof. In the case of In re
Intestate Estate of Tad-Y, found in the same volume (46 Phil., 557), this court,
speaking through the Chief Justice, applied article 840 of the Civil Code in
the following language:jgc:chanrobles.com.ph
"To determine the share that pertains to the natural child which is but one-
half of the portion that in quality and quantity belongs to the legitimate child
not bettered, the latter’s portion must first be ascertained. If a widow shares
in the inheritance, together with only one legitimate child, as in the instant
case, the child gets, according to the law, the third constituting the
legitimate in full ownership, and the third available for betterment in naked
ownership, the usufruct of which goes to the widow. Then the natural child
must get one-half of the free third in full ownership and the other half of
this third in naked ownership, from which third his portion must be taken,
so far as possible, after deducting the funeral and burial expenses. . . .
."cralaw virtua1aw library
Our attention has not been called to any case in which this court has treated
article 840 as entirely and completely repealed.
We are therefore of the opinion that this case must be disposed of according
to the above quotation from the case of Tad-Y.
The eleventh assignment of error relates to a matter of accountancy which
the court ordered to take place after its original decision had become in force
and needs no further discussion at this time.
The decision and orders of the trial court must therefore be reversed and the
case remanded for further proceedings consonant with this opinion. Costs
against appellee. So ordered.
G.R. No. 1641 January 19, 1906
GERMAN JABONETA, plaintiff-appellant,
vs.RICARDO GUSTILO, ET AL., defendants-appellees.
In these proceedings probate was denied the last will and testament of
Macario Jaboneta, deceased, because the lower court was of the opinion
from the evidence adduced at the hearing that Julio Javellana, one of the
witnesses, did not attach his signature thereto in the presence of Isabelo
Jena, another of the witnesses, as required by the provisions of section 618
of the Code of Civil Procedure.
The following is a copy of the evidence which appears of record on this
particular point, being a part of the testimony of the said Isabeo Jena:
Q. 1641 Who first signed the will?
A. 1641 I signed it first, and afterwards Aniceto and the others.
Q. 1641 Who were those others to whom you have just referred?
A. 1641 After the witness Aniceto signed the will I left the house,
because I was in a hurry, and at the moment when I was leaving I saw Julio
Javellana with the pen in his hand in position ready to sign (en actitud de
firmar). I believe he signed, because he was at the table. . . .
Q. 1641 State positively whether Julio Javellana did or did not sign as
a witness to the will.
A. 1641 I can't say certainly, because as I was leaving the house I saw
Julio Javellana with the pen in his hand, in position ready to sign. I believe
he signed.
Q. 1641 Why do you believe Julio Javellana signed?
A. 1641 Because he had the pen in his hand, which was resting on the
paper, though I did not actually see him sign.
Q. 1641 Explain this contradictory statement.
A. 1641 After I signed I asked permission to leave, because I was in a
hurry, and while I was leaving Julio had already taken the pen in his hand, as
it appeared, for the purpose of signing, and when I was near the door I
happened to turn my face and I saw that he had his hand with the pen resting
on the will, moving it as if for the purpose of signing.
Q. 1641 State positively whether Julio moved his hand with the pen as
if for the purpose of signing, or whether he was signing
A. I believe he was signing.
The truth and accuracy of the testimony of this witness does not seem to
have been questioned by any of the parties to the proceedings, but the court,
nevertheless, found the following facts:
On the 26th day of December, 1901, Macario Jaboneta executed under the
following circumstances the document in question, which has been
presented for probate as his will:
Being in the house of Arcadio Jarandilla, in Jaro, in this province, he ordered
that the document in question be written, and calling Julio Javellana, Aniceto
Jalbuena, and Isabelo Jena as witnesses, executed the said document as his
will. They were all together, and were in the room where Jaboneta was, and
were present when he signed the document, Isabelo Jena signing afterwards
as a witness, at his request, and in his presence and in the presence of the
other two witnesses. Aniceto Jalbuena then signed as a witness in the
presence of the testator, and in the presence of the other two persons who
signed as witnesses. At that moment Isabelo Jena, being in a hurry to leave,
took his hat and left the room. As he was leaving the house Julio Javellana
took the pen in his hand and put himself in position to sign the will as a
witness, but did not sign in the presence of Isabelo Jena; but nevertheless,
after Jena had left the room the said Julio Javellana signed as a witness in
the presence of the testator and of the witness Aniceto Jalbuena.
We can not agree with so much of the above finding of facts as holds that
the signature of Javellana was not signed in the presence of Jena, in
compliance with the provisions of section 618 of the Code of Civil Procedure.
The fact that Jena was still in the room when he saw Javellana moving his
hand and pen in the act of affixing his signature to the will, taken together
with the testimony of the remaining witnesses which shows that Javellana
did in fact there and then sign his name to the will, convinces us that the
signature was affixed in the presence of Jena. The fact that he was in the act
of leaving, and that his back was turned while a portion of the name of the
witness was being written, is of no importance. He, with the other witnesses
and the testator, had assembled for the purpose of executing the testament,
and were together in the same room for that purpose, and at the moment
when the witness Javellana signed the document he was actually and
physically present and in such position with relation to Javellana that he
could see everything which took place by merely casting his eyes in the
proper direction, and without any physical obstruction to prevent his doing
so, therefore we are of opinion that the document was in fact signed before
he finally left the room.
The purpose of a statutory requirement that the witness sign in the presence
of the testator is said to be that the testator may have ocular evidence of the
identity of the instrument subscribed by the witness and himself, and the
generally accepted tests of presence are vision and mental apprehension.
(See Am. & Eng. Enc. of Law, vol. 30, p. 599, and cases there cited.)
In the matter of Bedell (2 Connoly (N.Y.), 328) it was held that it is sufficient
if the witnesses are together for the purpose of witnessing the execution of
the will, and in a position to actually see the testator write, if they choose to
do so; and there are many cases which lay down the rule that the true test
of vision is not whether the testator actually saw the witness sign, but
whether he might have seen him sign, considering his mental and physical
condition and position at the time of the subscription. (Spoonemore vs.
Cables, 66 Mo., 579.)

The principles on which these cases rest and the tests of presence as between
the testator and the witnesses are equally applicable in determining whether
the witnesses signed the instrument in the presence of each other, as
required by the statute, and applying them to the facts proven in these
proceedings we are of opinion that the statutory requisites as to the
execution of the instrument were complied with, and that the lower court
erred in denying probate to the will on the ground stated in the ruling
appealed from.
We are of opinion from the evidence of record that the instrument
propounded in these proceedings was satisfactorily proven to be the last will
and testament of Macario Jaboneta, deceased, and that it should therefore
be admitted to probate.
The judgment of the trial court is reversed, without especial condemnation
of costs, and after twenty days the record will be returned to the court form
whence it came, where the proper orders will be entered in conformance
herewith. So ordered.
G.R. No. L-5971 February 27, 1911
BEATRIZ NERA, ET AL., plaintiffs-appellees,
vs.NARCISA RIMANDO, defendant-appellant.
The only question raised by the evidence in this case as to the due execution
of the instrument propounded as a will in the court below, is whether one of
the subscribing witnesses was present in the small room where it was
executed at the time when the testator and the other subscribing witnesses
attached their signatures; or whether at that time he was outside, some eight
or ten feet away, in a large room connecting with the smaller room by a
doorway, across which was hung a curtain which made it impossible for one
in the outside room to see the testator and the other subscribing witnesses
in the act of attaching their signatures to the instrument.
A majority of the members of the court is of opinion that this subscribing
witness was in the small room with the testator and the other subscribing
witnesses at the time when they attached their signatures to the instrument,
and this finding, of course, disposes of the appeal and necessitates the
affirmance of the decree admitting the document to probate as the last will
and testament of the deceased.
The trial judge does not appear to have considered the determination of this
question of fact of vital importance in the determination of this case, as he
was of opinion that under the doctrine laid down in the case of Jaboneta vs.
Gustilo (5 Phil. Rep., 541) the alleged fact that one of the subscribing
witnesses was in the outer room when the testator and the other describing
witnesses signed the instrument in the inner room, had it been proven,
would not be sufficient in itself to invalidate the execution of the will. But we
are unanimously of opinion that had this subscribing witness been proven
to have been in the outer room at the time when the testator and the other
subscribing witnesses attached their signatures to the instrument in the
inner room, it would have been invalid as a will, the attaching of those
signatures under circumstances not being done "in the presence" of the
witness in the outer room. This because the line of vision from this witness
to the testator and the other subscribing witnesses would necessarily have
been impeded by the curtain separating the inner from the outer one "at the
moment of inscription of each signature."
In the case just cited, on which the trial court relied, we held that:
The true test of presence of the testator and the witnesses in the execution
of a will is not whether they actually saw each other sign, but whether they
might have been seen each other sign, had they chosen to do so, considering
their mental and physical condition and position with relation to each other
at the moment of inscription of each signature.
But it is especially to be noted that the position of the parties with relation
to each other at the moment of the subscription of each signature, must be
such that they may see each other sign if they choose to do so. This, of
course, does not mean that the testator and the subscribing witnesses may
be held to have executed the instrument in the presence of each other if it
appears that they would not have been able to see each other sign at that
moment, without changing their relative positions or existing conditions.
The evidence in the case relied upon by the trial judge discloses that "at the
moment when the witness Javellana signed the document he was actually
and physically present and in such position with relation to Jaboneta that he
could see everything that took place by merely casting his eyes in the proper
direction and without any physical obstruction to prevent his doing so." And
the decision merely laid down the doctrine that the question whether the
testator and the subscribing witnesses to an alleged will sign the instrument
in the presence of each other does not depend upon proof of the fact that
their eyes were actually cast upon the paper at the moment of its
subscription by each of them, but that at that moment existing conditions
and their position with relation to each other were such that by merely
casting the eyes in the proper direction they could have seen each other sign.
To extend the doctrine further would open the door to the possibility of all
manner of fraud, substitution, and the like, and would defeat the purpose
for which this particular condition is prescribed in the code as one of the
requisites in the execution of a will.
The decree entered by the court below admitting the instrument
propounded therein to probate as the last will and testament of Pedro
Rimando, deceased, is affirmed with costs of this instance against the
appellant.
G.R. No. L-4067 November 29, 1951
In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA,
petitioner,
vs.JULIANA LACUESTA, ET AL., respondents.
This is an appeal from a decision of the Court of Appeals disallowing the will
of Antero Mercado dated January 3, 1943. The will is written in the Ilocano
dialect and contains the following attestation clause:
We, the undersigned, by these presents to declare that the foregoing
testament of Antero Mercado was signed by himself and also by us below
his name and of this attestation clause and that of the left margin of the
three pages thereof. Page three the continuation of this attestation clause;
this will is written in Ilocano dialect which is spoken and understood by the
testator, and it bears the corresponding number in letter which compose of
three pages and all them were signed in the presence of the testator and
witnesses, and the witnesses in the presence of the testator and all and each
and every one of us witnesses.
In testimony, whereof, we sign this statement, this the third day of January,
one thousand nine hundred forty three, (1943) A.D.
(Sgd.) NUMERIANO EVANGELISTA
(Sgd.) "ROSENDA CORTES
(Sgd.) BIBIANA ILLEGIBLE
The will appears to have been signed by Atty. Florentino Javier who wrote
the name of Antero Mercado, followed below by "A reugo del testator" and
the name of Florentino Javier. Antero Mercado is alleged to have written a
cross immediately after his name. The Court of Appeals, reversing the
judgement of the Court of First Instance of Ilocos Norte, ruled that the
attestation clause failed (1) to certify that the will was signed on all the left
margins of the three pages and at the end of the will by Atty. Florentino
Javier at the express request of the testator in the presence of the testator
and each and every one of the witnesses; (2) to certify that after the signing
of the name of the testator by Atty. Javier at the former's request said
testator has written a cross at the end of his name and on the left margin of
the three pages of which the will consists and at the end thereof; (3) to certify
that the three witnesses signed the will in all the pages thereon in the
presence of the testator and of each other.
In our opinion, the attestation clause is fatally defective for failing to state
that Antero Mercado caused Atty. Florentino Javier to write the testator's
name under his express direction, as required by section 618 of the Code of
Civil Procedure. The herein petitioner (who is appealing by way of certiorari
from the decision of the Court of Appeals) argues, however, that there is no
need for such recital because the cross written by the testator after his name
is a sufficient signature and the signature of Atty. Florentino Javier is a
surplusage. Petitioner's theory is that the cross is as much a signature as a
thumbmark, the latter having been held sufficient by this Court in the cases
of De Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479;
Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopez
vs. Liboro, 81 Phil., 429.
It is not here pretended that the cross appearing on the will is the usual
signature of Antero Mercado or even one of the ways by which he signed his
name. After mature reflection, we are not prepared to liken the mere sign of
the cross to a thumbmark, and the reason is obvious. The cross cannot and
does not have the trustworthiness of a thumbmark.
What has been said makes it unnecessary for us to determine there is a
sufficient recital in the attestation clause as to the signing of the will by the
testator in the presence of the witnesses, and by the latter in the presence
of the testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with against the
petitioner. So ordered.
G.R. No. L-30289 March 26, 1929
SERAPIA DE GALA, petitioner-appellant,
vs.APOLINARIO GONZALES and SINFOROSO ONA, opponents-appellants.
On November 23, 1920, Severina Gonzales executed a will in which Serapia
de Gala, a niece of Severina, was designated executrix. The testatrix died in
November, 1926, leaving no heirs by force of law, and on December 2, 1926,
Serapia, through her counsel, presented the will for probate. Apolinario
Gonzales, a nephew of the deceased, filed an opposition to the will on the
ground that it had not been executed in conformity with the provisions of
section 618 of the Code of Civil Procedure. On April 2, 1927, Serapia de Gala
was appointed special administratrix of the estate of the deceased. She
returned an inventory of the estate on March 31, 1927, and made several
demands upon Sinforoso Ona, the surviving husband of the deceased, for
the delivery to her of the property inventoried and of which he was in
possession.
On September 20, 1928, the Court of First Instance ordered Sinforoso Ona to
deliver to Serapia de Gala all the property left by the deceased. Instead of
delivering the property as ordered, Sinforoso filed a motion asking the
appointment of Serapia de Gala as special administratrix be cancelled and
that he, Sinforoso, be appointed in her stead. The motion was opposed by
both Apolinario Gonzales and by Serapia de Gala, but on March 3, 1928, it
was nevertheless granted, Serapia was removed, and Sinforoso was
appointed special administrator in her place, principally on the ground that
he had possession of the property in question and that his appointment
would simplify the proceedings.
In the meantime and after various continuances and delays, the court below
in an order dated January 20, 1928, declared the will valid and admitted it to
probate. All of the parties appealed, Serapia de Gala from the order
removing her from the office of special administratrix, and Apolinario
Gonzales and Sinforoso Ona from the order probating the will.
Serapia's appeal requires but little discussion. The burden of the argument
of her counsel is that a special administrator cannot be removed except for
one or more of the causes stated in section 653 of the Code of Civil
Procedure. But that section can only apply to executors and regular
administrators, and the office of a special administrator is quite different
from that of regular administrator. The appointment of a special
administrator lies entirely in the sound discretion of the court; the function
of such an administrator is only to collect and preserve the property of the
deceased and to return an inventory thereof; he cannot be sued by a creditor
and cannot pay any debts of the deceased. The fact that no appeal can be
taken from the appointment of a special administrator indicates that both
his appointment and his removal are purely discretionary, and we cannot
find that the court below abused its discretion in the present case. In
removing Serapia de Gala and appointing the present possessor of the
property pending the final determination of the validity of the will, the court
probably prevented useless litigation.
The appellants Sinforoso Ona and Apolinario Gonzales argue that the will in
question was not executed in the form prescribed by section 618 of the Code
of Civil Procedure as amended by Act No. 2645. That section reads as follows:
No will, except as provided in the preceding section, 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 and signed by him,
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 each other. 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, on the left margin, and said pages shall be numbered
correlatively in letters placed on the upper part of each sheet. 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.
The principal points raised by the appeal are (1) that the person requested
to sign the name of the testatrix signed only the latter's name and not her
own; (2) that the attestation clause does not mention the placing of the
thumb-mark of the testatrix in the will; and (3) that the fact that the will had
been signed in the presence of the witnesses was not stated in the
attestation clause but only in the last paragraph of the body of the will.
The first point can best be answered by quoting the language of this court
in the case of the Estate of Maria Salva, G. R. No. 26881:1
An examination of the will in question disclosed that it contains five pages.
The name of the old woman, Maria Salva, was written on the left hand
margin of the first four pages and at the end of the will. About in the center
of her name she placed her thumb-mark. About in the center of her name
she placed her thumb-mark. The three witnesses likewise signed on the left-
hand margin and at the end of the will.
On these facts, the theory of the trial judge was that under the provisions of
section 618 of the Code of Civil Procedure, as amended by Act No. 2645, it
was essential to the validity of the will that the person writing the name of
the maker of the will also sign. Under the law prior to the amendment, it had
been held by this court that where a testator is unable to write and his name
is signed by another at his request, in his presence and in that of the
subscribing witnesses thereto, it is unimportant, so far as the validity of the
will is concerned, whether the person who writes the name of the testator
signs his own or not. (Barut vs. Cabacungan (1912), 21 Phil., 461). But his
Honor, the trial judge emphasizes that the amendment introduced into the
law the following sentence: '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, on the left margin . . ..' This
requirement, it is said, was not lived up to in this instance.
There is, however, an entirely different view which can be taken of the
situation. This is that the testatrix placed her thumb-mark on the will in the
proper places. When, therefore, the law says that the will shall be 'signed' by
the testator or testatrix, the law is fulfilled not only by the customary written
signature but by the testator or testatrix' thumb-mark. The construction put
upon the word 'signed' by most courts is the original meaning of a signum
or sign, rather than the derivative meaning of a sign manual or handwriting.
A statute requiring a will to be 'signed' is satisfied if the signature is made
by the testator's mark. (28 R. C. L., pp. 116-117).
The opinion quoted is exactly in point. The testatrix thumb-mark appears in
the center of her name as written by Serapia de Gala on all of the pages of
the will.
The second and third points raised by Sinforoso Ona and Apolinario
Gonzales are sufficiently refuted by quoting the last clause of the body of
the will together with the attestation clause, both of which are written in the
Tagalog dialect. These clauses read as follows:
Sa katunayang ang kasulatang ito, na may anim na dahon, ay siyang
naglalaman ng aking huling tagubilin, at sa hindi ko kaalamang lumagda ng
aking pangalan, ipinamanhik ko sa aking pamankin na si Serapia de Gala na
isulat ang aking pangalan at apellido, at sa tapat ay inilagda ko ang titik ng
kanang daliri kong hinlalaki, sa walkas at sa bawat isa sa anim (6) na dahon
ng kasulatang ito, at ito's ginawa niya sa kautusan at sa harap ko at ng
tatlong saksing nagpapatutuo sa huli ngayon ika dalawang po't tatlo ng
Nobiembre ng 1920.
(Sgd.) SEVERINA GONZALES
Pinatutunayan namin na ang kasulatang ito na binubuo ng anim (6) na
dahon na pinirmahan sa harap namin ni Serapia de Gala sa kahilingan ni
Severina Gonzales sa wakas at sa mga gilid ng bawa't isa sa anim (6) na
dahon at isinaysay na ang kasulatang ito ay siyang huling habilin o
testamento ni Severina Gonzales, ay pinirmahan namin, bilang mga saksi sa
wakas at sa gilid ng bawa't dahon sa harap at sa kahilingan ng tinurang
testadora, at ang bawat isa sa amin ay pumirma sa harap ng lahat at bawat
isa sa amin, ngayon ika dalawang po't tatlo ng noviembre ng taong 1920 ng
taong 1920.
(Sgd.) ELEUTERIO NATIVIDAD
JUAN SUMULONG
FRANCISCO NATIVIDAD
The translation in English of the clauses quoted reads as follows:
In virtue of this will, consisting of six pages, that contains my last wish, and
because of the fact that I cannot sign my name, I request my niece Serapia
de Gala to write my name, and above this I placed my right thumb-mark at
the end of this will and to each of the six pages of this document, and this
was done at my direction and in the presence of three attesting witnesses,
this 23rd of November, 1920.
(Sgd.) SEVERINA GONZALES
We certify that this document, which is composed of six (6) sheets and was
signed in our presence by Serapia de Gala at the request of Severina
Gonzales at the end and on the margins of each of the six (6) sheets and was
declared to contain the last will and testament of Severina Gonzales, was
signed by us as witnesses at the end and on the margins of each sheet in the
presence and at the request of said testatrix, and each of us signed in the
presence of all and each of us, this 23rd day of November of the year 1920.
(Sgd.) ELEUTERIO NATIVIDAD
JUAN SUMULONG
FRANCISCO NATIVIDAD
As will be seen, it is not mentioned in the attestation clause that the testatrix
signed by thumb-mark, but it does there appear that the signature was
affixed in the presence of the witnesses, and the form of the signature is
sufficiently described and explained in the last clause of the body of the will.
It maybe conceded that the attestation clause is not artistically drawn and
that, standing alone, it does not quite meet the requirements of the statute,
but taken in connection with the last clause of the body of the will, it is fairly
clear and sufficiently carries out the legislative intent; it leaves no possible
doubt as to the authenticity of the document.
The contention of the appellants Sinforoso Ona and Apolinario Gonzales that
the fact that the will had been signed in the presence of the witnesses was
not stated in the attestation clause is without merit; the fact is expressly
stated in that clause.
In our opinion, the will is valid, and the orders appealed from are hereby
affirmed without costs. So ordered.
G.R. No. 106720 September 15, 1994
SPOUSES ROBERTO AND THELMA AJERO, petitioners,
vs.THE COURT OF APPEALS AND CLEMENTE SAND, respondents.
This is an appeal by certiorari from the Decision of the Court of
Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the dispositive
portion of which reads;
PREMISES CONSIDERED, the questioned decision of November 19, 1988 of
the trial court is hereby REVERSED and SET ASIDE, and the petition for
probate is hereby DISMISSED. No costs.
The earlier Decision was rendered by the RTC of Quezon City, Branch 94, 2
in Sp. Proc. No. Q-37171, and the instrument submitted for probate is the
holographic will of the late Annie Sand, who died on November 25, 1982.
In the will, decedent named as devisees, the following: petitioners Roberto
and Thelma Ajero, private respondent Clemente Sand, Meriam S. Arong,
Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero,
Sr., and their children.
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for
allowance of decedent's holographic will. They alleged that at the time of its
execution, she was of sound and disposing mind, not acting under duress,
fraud or undue influence, and was in every respect capacitated to dispose of
her estate by will.
Private respondent opposed the petition on the grounds that: neither the
testament's body nor the signature therein was in decedent's handwriting; it
contained alterations and corrections which were not duly signed by
decedent; and, the will was procured by petitioners through improper
pressure and undue influence. The petition was likewise opposed by Dr. Jose
Ajero. He contested the disposition in the will of a house and lot located in
Cabadbaran, Agusan Del Norte. He claimed that said property could not be
conveyed by decedent in its entirety, as she was not its sole owner.
Notwithstanding the oppositions, the trial court admitted the decedent's
holographic will to probate. It found, inter alia:
Considering then that the probate proceedings herein must decide only the
question of identity of the will, its due execution and the testamentary
capacity of the testatrix, this probate court finds no reason at all for the
disallowance of the will for its failure to comply with the formalities
prescribed by law nor for lack of testamentary capacity of the testatrix.
For one, no evidence was presented to show that the will in question is
different from the will actually executed by the testatrix. The only objections
raised by the oppositors . . . are that the will was not written in the
handwriting of the testatrix which properly refers to the question of its due
execution, and not to the question of identity of will. No other will was
alleged to have been executed by the testatrix other than the will herein
presented. Hence, in the light of the evidence adduced, the identity of the
will presented for probate must be accepted, i.e., the will submitted in Court
must be deemed to be the will actually executed by the testatrix.
xxx xxx xxx
While the fact that it was entirely written, dated and signed in the
handwriting of the testatrix has been disputed, the petitioners, however,
have satisfactorily shown in Court that the holographic will in question was
indeed written entirely, dated and signed in the handwriting of the testatrix.
Three (3) witnesses who have convincingly shown knowledge of the
handwriting of the testatrix have been presented and have explicitly and
categorically identified the handwriting with which the holographic will in
question was written to be the genuine handwriting and signature of the
testatrix. Given then the aforesaid evidence, the requirement of the law that
the holographic will be entirely written, dated and signed in the handwriting
of the testatrix has been complied with.
xxx xxx xxx
As to the question of the testamentary capacity of the testratix, (private
respondent) Clemente Sand himself has testified in Court that the testatrix
was completely in her sound mind when he visited her during her birthday
celebration in 1981, at or around which time the holographic will in question
was executed by the testatrix. To be of sound mind, it is sufficient that the
testatrix, at the time of making the will, knew the value of the estate to be
disposed of, the proper object of her bounty, and the character of the
testamentary act . . . The will itself shows that the testatrix even had detailed
knowledge of the nature of her estate. She even identified the lot number
and square meters of the lots she had conveyed by will. The objects of her
bounty were likewise identified explicitly. And considering that she had even
written a nursing book which contained the law and jurisprudence on will
and succession, there is more than sufficient showing that she knows the
character of the testamentary act.
In this wise, the question of identity of the will, its due execution and the
testamentary capacity of the testatrix has to be resolved in favor of the
allowance of probate of the will submitted herein.
Likewise, no evidence was presented to show sufficient reason for the
disallowance of herein holographic will. While it was alleged that the said
will was procured by undue and improper pressure and influence on the part
of the beneficiary or of some other person, the evidence adduced have not
shown any instance where improper pressure or influence was exerted on
the testatrix. (Private respondent) Clemente Sand has testified that the
testatrix was still alert at the time of the execution of the will, i.e., at or
around the time of her birth anniversary celebration in 1981. It was also
established that she is a very intelligent person and has a mind of her own.
Her independence of character and to some extent, her sense of superiority,
which has been testified to in Court, all show the unlikelihood of her being
unduly influenced or improperly pressured to make the aforesaid will. It
must be noted that the undue influence or improper pressure in question
herein only refer to the making of a will and not as to the specific
testamentary provisions therein which is the proper subject of another
proceeding. Hence, under the circumstances, this Court cannot find
convincing reason for the disallowance of the will herein.
Considering then that it is a well-established doctrine in the law on
succession that in case of doubt, testate succession should be preferred over
intestate succession, and the fact that no convincing grounds were
presented and proven for the disallowance of the holographic will of the late
Annie Sand, the aforesaid will submitted herein must be admitted to
probate. 3 (Citations omitted.)
On appeal, said Decision was reversed, and the petition for probate of
decedent's will was dismissed. The Court of Appeals found that, "the
holographic will fails to meet the requirements for its validity." 4 It held that
the decedent did not comply with Articles 813 and 814 of the New Civil Code,
which read, as follows:
Art. 813: When a number of dispositions appearing in a holographic will are
signed without being dated, and the last disposition has a signature and
date, such date validates the dispositions preceding it, whatever be the time
of prior dispositions.
Art. 814: In case of insertion, cancellation, erasure or alteration in a
holographic will, the testator must authenticate the same by his full
signature.
It alluded to certain dispositions in the will which were either unsigned and
undated, or signed but not dated. It also found that the erasures, alterations
and cancellations made thereon had not been authenticated by decedent.
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that will shall be disallowed
in any of the following cases:
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally incapable to make
a will, at the time of its execution;
(c) If it was executed under duress, or the influence of fear, or threats;
(d) If it was procured by undue and improper pressure and influence,
on the part of the beneficiary, or of some other person for his benefit;
(e) If the signature of the testator was procured by fraud or trick, and
he did not intend that the instrument should be his will at the time of fixing
his signature thereto.
In the same vein, Article 839 of the New Civil Code reads:
Art. 839: The will shall be disallowed in any of the following cases;
(1) If the formalities required by law have not been complied with;
(2) If the testator was insane, or otherwise mentally incapable of
making a will, at the time of its execution;
(3) If it was executed through force or under duress, or the influence
of fear, or threats;
(4) If it was procured by undue and improper pressure and influence,
on the part of the beneficiary or of some other person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that the
instrument he signed should be his will at the time of affixing his signature
thereto.
These lists are exclusive; no other grounds can serve to disallow a will. 5 Thus,
in a petition to admit a holographic will to probate, the only issues to be
resolved are: (1) whether the instrument submitted is, indeed, the decedent's
last will and testament; (2) whether said will was executed in accordance with
the formalities prescribed by law; (3) whether the decedent had the
necessary testamentary capacity at the time the will was executed; and, (4)
whether the execution of the will and its signing were the voluntary acts of
the decedent. 6
In the case at bench, respondent court held that the holographic will of Anne
Sand was not executed in accordance with the formalities prescribed by law.
It held that Articles 813 and 814 of the New Civil Code, ante, were not
complied with, hence, it disallowed the probate of said will. This is erroneous.
We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919),
that:
The object of the solemnities surrounding the execution of wills is to close
the door against bad faith and fraud, to avoid substitution of wills and
testaments and to guaranty their truth and authenticity. Therefore, the laws
on this subject should be interpreted in such a way as to attain these
primordial ends. But, on the other hand, also one must not lose sight of the
fact that it is not the object of the law to restrain and curtail the exercise of
the right to make a will. So when an interpretation already given assures such
ends, any other interpretation whatsoever, that adds nothing but demands
more requisites entirely unnecessary, useless and frustrative of the testator's
last will, must be disregarded.
For purposes of probating non-holographic wills, these formal solemnities
include the subscription, attestation, and acknowledgment requirements
under Articles 805 and 806 of the New Civil Code.
In the case of holographic wills, on the other hand, what assures authenticity
is the requirement that they be totally autographic or handwritten by the
testator himself, 7 as provided under Article 810 of the New Civil Code, thus:
A person may execute a holographic will which must be entirely written,
dated, and signed by the hand of the testator himself. It is subject to no other
form, and may be made in or out of the Philippines, and need not be
witnessed. (Emphasis supplied.)
Failure to strictly observe other formalities will not result in the disallowance
of a holographic will that is unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its requirement
affects the validity of the dispositions contained in the holographic will, but
not its probate. If the testator fails to sign and date some of the dispositions,
the result is that these dispositions cannot be effectuated. Such failure,
however, does not render the whole testament void.
Likewise, a holographic will can still be admitted to probate, notwithstanding
non-compliance with the provisions of Article 814. In the case of Kalaw vs.
Relova 132 SCRA 237 242 (1984), this Court held:
Ordinarily, when a number of erasures, corrections, and interlineations made
by the testator in a holographic Will have not been noted under his signature,
. . . the Will is not thereby invalidated as a whole, but at most only as respects
the particular words erased, corrected or interlined. Manresa gave an
identical commentary when he said "la omission de la salvedad no anula el
testamento, segun la regla de jurisprudencia establecida en la sentencia de
4 de Abril de 1985." 8 (Citations omitted.)
Thus, unless the unauthenticated alterations, cancellations or insertions were
made on the date of the holographic will or on testator's signature, 9 their
presence does not invalidate the will itself. 10 The lack of authentication will
only result in disallowance of such changes.
It is also proper to note that the requirements of authentication of changes
and signing and dating of dispositions appear in provisions (Articles 813 and
814) separate from that which provides for the necessary conditions for the
validity of the holographic will (Article 810). The distinction can be traced to
Articles 678 and 688 of the Spanish Civil Code, from which the present
provisions covering holographic wills are taken. They read as follows:
Art. 678: A will is called holographic when the testator writes it himself in
the form and with the requisites required in Article 688.
Art. 688: Holographic wills may be executed only by persons of full age.
In order that the will be valid it must be drawn on stamped paper
corresponding to the year of its execution, written in its entirety by the
testator and signed by him, and must contain a statement of the year, month
and day of its execution.
If it should contain any erased, corrected, or interlined words, the testator
must identify them over his signature.
Foreigners may execute holographic wills in their own language.
This separation and distinction adds support to the interpretation that only
the requirements of Article 810 of the New Civil Code — and not those found
in Articles 813 and 814 of the same Code — are essential to the probate of a
holographic will.
The Court of Appeals further held that decedent Annie Sand could not validly
dispose of the house and lot located in Cabadbaran, Agusan del Norte, in its
entirety. This is correct and must be affirmed.
As a general rule, courts in probate proceedings are limited to pass only
upon the extrinsic validity of the will sought to be probated. However, in
exceptional instances, courts are not powerless to do what the situation
constrains them to do, and pass upon certain provisions of the will. 11 In the
case at bench, decedent herself indubitably stated in her holographic will
that the Cabadbaran property is in the name of her late father, John H. Sand
(which led oppositor Dr. Jose Ajero to question her conveyance of the same
in its entirety). Thus, as correctly held by respondent court, she cannot validly
dispose of the whole property, which she shares with her father's other heirs.
IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the
Court of Appeals in CA-G.R. CV No. 22840, dated March 30, 1992, is
REVERSED and SET ASIDE, except with respect to the invalidity of the
disposition of the entire house and lot in Cabadbaran, Agusan del Norte. The
Decision of the Regional Trial Court of Quezon City, Branch 94 in Sp. Proc.
No. Q-37171, dated November 19, 1988, admitting to probate the
holographic will of decedent Annie Sand, is hereby REINSTATED, with the
above qualification as regards the Cabadbaran property. No costs.
SO ORDERED.
G.R. No. L-40207 September 28, 1984
ROSA K. KALAW, petitioner,
vs.HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of Batangas,
Branch VI, Lipa City, and GREGORIO K. KALAW, respondents.
On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to
be the sole heir of his deceased sister, Natividad K. Kalaw, filed a petition
before the Court of First Instance of Batangas, Branch VI, Lipa City, for the
probate of her holographic Will executed on December 24, 1968.
The holographic Will reads in full as follows:
My Last will and Testament
In the name of God, Amen.
I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa
City, being of sound and disposing mind and memory, do hereby declare
thus to be my last will and testament.
1. It is my will that I'll be burried in the cemetery of the catholic
church of Lipa City. In accordance with the rights of said Church, and that
my executrix hereinafter named provide and erect at the expose of my state
a suitable monument to perpetuate my memory.
xxx xxx xxx
The holographic Will, as first written, named ROSA K. Kalaw, a sister of the
testatrix as her sole heir. Hence, on November 10, 1971, petitioner ROSA K.
Kalaw opposed probate alleging, in substance, that the holographic Will
contained alterations, corrections, and insertions without the proper
authentication by the full signature of the testatrix as required by Article 814
of the Civil Code reading:
Art. 814. In case of any insertion, cancellation, erasure or alteration in a
holographic will the testator must authenticate the same by his full
signature.
ROSA's position was that the holographic Will, as first written, should be
given effect and probated so that she could be the sole heir thereunder.
After trial, respondent Judge denied probate in an Order, dated September
3, 197 3, reading in part:
The document Exhibit "C" was submitted to the National Bureau of
Investigation for examination. The NBI reported that the handwriting, the
signature, the insertions and/or additions and the initial were made by one
and the same person. Consequently, Exhibit "C" was the handwriting of the
decedent, Natividad K. Kalaw. The only question is whether the win, Exhibit
'C', should be admitted to probate although the alterations and/or insertions
or additions above-mentioned were not authenticated by the full signature
of the testatrix pursuant to Art. 814 of the Civil Code. The petitioner contends
that the oppositors are estopped to assert the provision of Art. 814 on the
ground that they themselves agreed thru their counsel to submit the
Document to the NBI FOR EXAMINATIONS. This is untenable. The parties did
not agree, nor was it impliedly understood, that the oppositors would be in
estoppel.
The Court finds, therefore, that the provision of Article 814 of the Civil Code
is applicable to Exhibit "C". Finding the insertions, alterations and/or
additions in Exhibit "C" not to be authenticated by the full signature of the
testatrix Natividad K. Kalaw, the Court will deny the admission to probate of
Exhibit "C".
WHEREFORE, the petition to probate Exhibit "C" as the holographic will of
Natividad K. Kalaw is hereby denied.
SO ORDERED.
From that Order, GREGORIO moved for reconsideration arguing that since
the alterations and/or insertions were the testatrix, the denial to probate of
her holographic Will would be contrary to her right of testamentary
disposition. Reconsideration was denied in an Order, dated November 2,
1973, on the ground that "Article 814 of the Civil Code being , clear and
explicit, (it) requires no necessity for interpretation."
From that Order, dated September 3, 1973, denying probate, and the Order
dated November 2, 1973 denying reconsideration, ROSA filed this Petition
for Review on certiorari on the sole legal question of whether or not the
original unaltered text after subsequent alterations and insertions were
voided by the Trial Court for lack of authentication by the full signature of
the testatrix, should be probated or not, with her as sole heir.
Ordinarily, when a number of erasures, corrections, and interlineations made
by the testator in a holographic Will litem not been noted under his
signature, ... the Will is not thereby invalidated as a whole, but at most only
as respects the particular words erased, corrected or interlined.1 Manresa
gave an Identical commentary when he said "la omision de la salvedad no
anula el testamento, segun la regla de jurisprudencia establecida en la
sentencia de 4 de Abril de 1895." 2
However, when as in this case, the holographic Will in dispute had only one
substantial provision, which was altered by substituting the original heir with
another, but which alteration did not carry the requisite of full authentication
by the full signature of the testator, the effect must be that the entire Will is
voided or revoked for the simple reason that nothing remains in the Will after
that which could remain valid. To state that the Will as first written should
be given efficacy is to disregard the seeming change of mind of the testatrix.
But that change of mind can neither be given effect because she failed to
authenticate it in the manner required by law by affixing her full signature,
The ruling in Velasco, supra, must be held confined to such insertions,
cancellations, erasures or alterations in a holographic Will, which affect only
the efficacy of the altered words themselves but not the essence and validity
of the Will itself. As it is, with the erasures, cancellations and alterations made
by the testatrix herein, her real intention cannot be determined with
certitude. As Manresa had stated in his commentary on Article 688 of the
Spanish Civil Code, whence Article 814 of the new Civil Code was derived:
... No infringe lo dispuesto en este articulo del Codigo (el 688) la sentencia
que no declara la nulidad de un testamento olografo que contenga palabras
tachadas, enmendadas o entre renglones no salvadas por el testador bajo su
firnia segun previene el parrafo tercero del mismo, porque, en realidad, tal
omision solo puede afectar a la validez o eficacia de tales palabras, y nunca
al testamento mismo, ya por estar esa disposicion en parrafo aparte de aquel
que determine las condiciones necesarias para la validez del testamento
olografo, ya porque, de admitir lo contrario, se Ilegaria al absurdo de que
pequefias enmiendas no salvadas, que en nada afectasen a la parte esencial
y respectiva del testamento, vinieran a anular este, y ya porque el precepto
contenido en dicho parrafo ha de entenderse en perfecta armonia y
congruencia con el art. 26 de la ley del Notariado que declara nulas las
adiciones apostillas entrerrenglonados, raspaduras y tachados en las
escrituras matrices, siempre que no se salven en la forma prevenida, paro no
el documento que las contenga, y con mayor motivo cuando las palabras
enmendadas, tachadas, o entrerrenglonadas no tengan importancia ni
susciten duda alguna acerca del pensamiento del testador, o constituyan
meros accidentes de ortografia o de purez escrituraria, sin trascendencia
alguna(l).
Mas para que sea aplicable la doctrina de excepcion contenida en este ultimo
fallo, es preciso que las tachaduras, enmiendas o entrerrenglonados sin
salvar saan de pala bras que no afecter4 alteren ni uarien de modo
substancial la express voluntad del testador manifiesta en el documento. Asi
lo advierte la sentencia de 29 de Noviembre de 1916, que declara nulo un
testamento olografo por no estar salvada por el testador la enmienda del
guarismo ultimo del año en que fue extendido3 (Emphasis ours).
WHEREFORE, this Petition is hereby dismissed and the Decision of
respondent Judge, dated September 3, 1973, is hereby affirmed in toto. No
costs. SO ORDERED.
G.R. No. L-12190 August 30, 1958
TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E.
GAN, petitioner-appellant, vs. ILDEFONSO YAP, oppositor-appellee.
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in
the University of Santo Tomas Hospital, leaving properties in Pulilan,
Bulacan, and in the City of Manila.
On March 17, 1952, Fausto E. Gan initiated them proceedings in the Manila
court of first instance with a petition for the probate of a holographic will
allegedly executed by the deceased, substantially in these words:
Nobyembre 5, 1951.
Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay
nagsasalaysay na ang aking kayamanan sa bayan ng Pulilan, Bulacan ay
aking ipinamamana sa aking mga kamag-anakang sumusunod:
Vicente Esguerra, Sr. .............................................
5 Bahagi
Fausto E. Gan .........................................................
2 Bahagi
Rosario E. Gan .........................................................
2 Bahagi
Filomena Alto ..........................................................
1 Bahagi
Beatriz Alto ..............................................................
1 Bahagi
At ang aking lahat ng ibang kayamanan sa Maynila at iba panglugar ay aking
ipinamamana sa aking asawang si Idelfonso D. Yap sa kondisyong siya'y
magpapagawa ng isang Health Center na nagkakahalaga ng di kukulangin
sa halagang P60,000.00 sa bayan ng Pulilan, Bulacan, na nakaukit ang aking
pangalang Felicidad Esguerra-Alto. At kung ito ay may kakulangan man ay
bahala na ang aking asawa ang magpuno upang matupad ang aking
kagustuhan.
(Lagda) Felicidad E. Alto-Yap.
Opposing the petition, her surviving husband Ildefonso Yap asserted that
the deceased had not left any will, nor executed any testament during her
lifetime.
After hearing the parties and considering their evidence, the Hon. Ramon R.
San Jose, Judge,1 refused to probate the alleged will. A seventy-page motion
for reconsideration failed. Hence this appeal.
The will itself was not presented. Petitioner tried to establish its contents and
due execution by the statements in open court of Felina Esguerra, Primitivo
Reyes, Socorro Olarte and Rosario Gan Jimenez, whose testimonies may be
summarized as follows:
Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to
her first cousin, Vicente Esguerra, her desire to make a will. She confided
however that it would be useless if her husband discovered or knew about
it. Vicente consulted with Fausto E. Gan, nephew of Felicidad, who was then
preparing for the bar examinations. The latter replied it could be done
without any witness, provided the document was entirely in her handwriting,
signed and dated by her. Vicente Esguerra lost no time in transmitting the
information, and on the strength of it, in the morning of November 5, 1951,
in her residence at Juan Luna Street, Manila, Felicidad wrote, signed and
dated a holographic will substantially of the tenor above transcribed, in the
presence of her niece, Felina Esguerra (daughter of Vicente), who was invited
to read it. In the afternoon of that day, Felicidad was visited by a distant
relative, Primitivo Reyes, and she allowed him to read the will in the presence
of Felina Esguerra, who again read it.
Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario
Gan Jimenez, a niece. To these she showed the will, again in the presence of
Felina Esguerra, who read it for the third time.
When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital
for her last illness, she entrusted the said will, which was contained in a purse,
to Felina Esguerra. But a few hours later, Ildefonso Yap, her husband, asked
Felina for the purse: and being afraid of him by reason of his well-known
violent temper, she delivered it to him. Thereafter, in the same day, Ildefonso
Yap returned the purse to Felina, only to demand it the next day shortly
before the death of Felicidad. Again, Felina handed it to him but not before
she had taken the purse to the toilet, opened it and read the will for the last
time.2
From the oppositor's proof it appears that Felicidad Esguerra had been
suffering from heart disease for several years before her death; that she had
been treated by prominent physicians, Dr. Agerico Sison, Dr. Agustin Liboro
and others; that in May 1950 husband and wife journeyed to the United
States wherein for several weeks she was treated for the disease; that
thereafter she felt well and after visiting interesting places, the couple
returned to this country in August 1950. However, her ailment recurred, she
suffered several attacks, the most serious of which happened in the early
morning of the first Monday of November 1951 (Nov. 5). The whole
household was surprised and alarmed, even the teachers of the Harvardian
Colleges occupying the lower floors and of by the Yap spouses. Physician's
help was hurriedly called, and Dr. Tanjuaquio arrived at about 8:00 a.m.,
found the patient hardly breathing, lying in bed, her head held high by her
husband. Injections and oxygen were administered. Following the doctor's
advice the patient stayed in bed, and did nothing the whole day, her husband
and her personal attendant, Mrs. Bantique, constantly at her side. These two
persons swore that Mrs. Felicidad Esguerra Yap made no will, and could have
made no will on that day.
The trial judge refused to credit the petitioner's evidence for several reasons,
the most important of which were these: (a) if according to his evidence, the
decedent wanted to keep her will a secret, so that her husband would not
know it, it is strange she executed it in the presence of Felina Esguerra,
knowing as she did that witnesses were unnecessary; (b) in the absence of a
showing that Felina was a confidant of the decedent it is hard to believe that
the latter would have allowed the former to see and read the will several
times; (c) it is improbable that the decedent would have permitted Primitivo
Reyes, Rosario Gan Jimenez and Socorro Olarte to read her will, when she
precisely wanted its contents to remain a secret during her lifetime; (d) it is
also improbable that her purpose being to conceal the will from her husband
she would carry it around, even to the hospital, in her purse which could for
one reason or another be opened by her husband; (e) if it is true that the
husband demanded the purse from Felina in the U.S.T. Hospital and that the
will was there, it is hard to believe that he returned it without destroying the
will, the theory of the petitioner being precisely that the will was executed
behind his back for fear he will destroy it.
In the face of these improbabilities, the trial judge had to accept the
oppositor's evidence that Felicidad did not and could not have executed
such holographic will.
In this appeal, the major portion of appellant's brief discussed the testimony
of the oppositor and of his witnesses in a vigorous effort to discredit them.
It appears that the same arguments, or most of them, were presented in the
motion to reconsider; but they failed to induce the court a quo to change its
mind. The oppositor's brief, on the other hand, aptly answers the criticisms.
We deem it unnecessary to go over the same matters, because in our opinion
the case should be decided not on the weakness of the opposition but on
the strength of the evidence of the petitioner, who has the burden of proof.
The Spanish Civil Code permitted the execution of holographic wills along
with other forms. The Code of Civil Procedure (Act 190) approved August 7,
1901, adopted only one form, thereby repealing the other forms, including
holographic wills.
The New Civil Code effective in 1950 revived holographic wills in its arts. 810-
814. "A person may execute a holographic will which must be entirely
written, dated, and signed by the hand of the testator himself. It is subject
to no other form and may be made in or out of the Philippines, and need
not be witnessed."
This is indeed a radical departure from the form and solemnities provided
for wills under Act 190, which for fifty years (from 1901 to 1950) required wills
to be subscribed by the testator and three credible witnesses in each and
every page; such witnesses to attest to the number of sheets used and to the
fact that the testator signed in their presence and that they signed in the
presence of the testator and of each other.
The object of such requirements it has been said, is to close the door against
bad faith and fraud, to prevent substitution of wills, to guarantee their truth
and authencity (Abangan vs. Abangan, 40 Phil., 476) and to avoid those who
have no right to succeed the testator would succeed him and be benefited
with the probate of same. (Mendoza vs. Pilapil, 40 Off. Gaz., 1855). However,
formal imperfections may be brushed aside when authenticity of the
instrument is duly proved. (Rodriguez vs Yap, 40 Off. Gaz. 1st Supp. No. 3 p.
194.)
Authenticity and due execution is the dominant requirements to be fulfilled
when such will is submitted to the courts for allowance. For that purpose the
testimony of one of the subscribing witnesses would be sufficient if there is
no opposition (Sec. 5, Rule 77). If there is, the three must testify, if available.
(Cabang vs. Delfinado, 34 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742).
From the testimony of such witnesses (and of other additional witnesses) the
court may form its opinion as to the genuineness and authenticity of the
testament, and the circumstances its due execution.
Now, in the matter of holographic wills, no such guaranties of truth and
veracity are demanded, since as stated, they need no witnesses; provided
however, that they are "entirely written, dated, and signed by the hand of
the testator himself." The law, it is reasonable to suppose, regards the
document itself as material proof of authenticity, and as its own safeguard,
since it could at any time, be demonstrated to be — or not to be — in the
hands of the testator himself. "In the probate of a holographic will" says the
New Civil Code, "it shall be necessary that at least one witness who knows
the handwriting and signature of the testator explicitly declare that the will
and the signature are in the handwriting of the testator. If the will is
contested, at least three such witnesses shall be required. In the absence of
any such witnesses, (familiar with decedent's handwriting) and if the court
deem it necessary, expert testimony may be resorted to."
The witnesses so presented do not need to have seen the execution of the
holographic will. They may be mistaken in their opinion of the handwriting,
or they may deliberately lie in affirming it is in the testator's hand. However,
the oppositor may present other witnesses who also know the testator's
handwriting, or some expert witnesses, who after comparing the will with
other writings or letters of the deceased, have come to the conclusion that
such will has not been written by the hand of the deceased. (Sec. 50, Rule
123). And the court, in view of such contradictory testimony may use its own
visual sense, and decide in the face of the document, whether the will
submitted to it has indeed been written by the testator.
Obviously, when the will itself is not submitted, these means of opposition,
and of assessing the evidence are not available. And then the only guaranty
of authenticity3 — the testator's handwriting — has disappeared.
Therefore, the question presents itself, may a holographic will be probated
upon the testimony of witnesses who have allegedly seen it and who declare
that it was in the handwriting of the testator? How can the oppositor prove
that such document was not in the testator's handwriting? His witnesses who
know testator's handwriting have not examined it. His experts can not
testify, because there is no way to compare the alleged testament with other
documents admittedly, or proven to be, in the testator's hand. The oppositor
will, therefore, be caught between the upper millstone of his lack of
knowledge of the will or the form thereof, and the nether millstone of his
inability to prove its falsity. Again the proponent's witnesses may be honest
and truthful; but they may have been shown a faked document, and having
no interest to check the authenticity thereof have taken no pains to examine
and compare. Or they may be perjurers boldly testifying, in the knowledge
that none could convict them of perjury, because no one could prove that
they have not "been shown" a document which they believed was in the
handwriting of the deceased. Of course, the competency of such perjured
witnesses to testify as to the handwriting could be tested by exhibiting to
them other writings sufficiently similar to those written by the deceased; but
what witness or lawyer would not foresee such a move and prepare for it?
His knowledge of the handwriting established, the witness (or witnesses)
could simply stick to his statement: he has seen and read a document which
he believed was in the deceased's handwriting. And the court and the
oppositor would practically be at the mercy of such witness (or witnesses)
not only as to the execution, but also as to the contents of the will. Does the
law permit such a situation?
The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of
a lost or destroyed will by secondary — evidence the testimony of witnesses,
in lieu of the original document. Yet such Rules could not have contemplated
holographic wills which could not then be validly made here. (See also Sec.
46, Rule 123; Art. 830-New Civil Code.)
Could Rule 77 be extended, by analogy, to holographic wills?
Spanish commentators agree that one of the greatest objections to the
holographic will is that it may be lost or stolen4 — an implied admission that
such loss or theft renders it useless..
This must be so, because the Civil Code requires it to be protocoled and
presented to the judge, (Art. 689) who shall subscribe it and require its
identity to be established by the three witnesses who depose that they have
no reasonable doubt that the will was written by the testator (Art. 691). And
if the judge considers that the identity of the will has been proven he shall
order that it be filed (Art. 693). All these, imply presentation of the will itself.
Art. 692 bears the same implication, to a greater degree. It requires that the
surviving spouse and the legitimate ascendants and descendants be
summoned so that they may make "any statement they may desire to submit
with respect to the authenticity of the will." As it is universally admitted that
the holographic will is usually done by the testator and by himself alone, to
prevent others from knowing either its execution or its contents, the above
article 692 could not have the idea of simply permitting such relatives to
state whether they know of the will, but whether in the face of the document
itself they think the testator wrote it. Obviously, this they can't do unless the
will itself is presented to the Court and to them.
Undoubtedly, the intention of the law is to give the near relatives the choice
of either complying with the will if they think it authentic, or to oppose it, if
they think it spurious.5 Such purpose is frustrated when the document is not
presented for their examination. If it be argued that such choice is not
essential, because anyway the relatives may oppose, the answer is that their
opposition will be at a distinct disadvantage, and they have the right and
privilege to comply with the will, if genuine, a right which they should not
be denied by withholding inspection thereof from them.
We find confirmation of these ideas--about exhibition of the document
itself--in the decision of the Supreme Court of Spain of June 5, 1925, which
denied protocolization or probate to a document containing testamentary
dispositions in the handwriting of the deceased, but apparently mutilated,
the signature and some words having been torn from it. Even in the face of
allegations and testimonial evidence (which was controverted), ascribing the
mutilation to the opponents of the will. The aforesaid tribunal declared that,
in accordance with the provision of the Civil Code (Spanish) the will itself,
whole and unmutilated, must be presented; otherwise, it shall produce no
effect.
Considerando que sentado lo anterior, y estableciendose en el parrafo
segundo del articulo 688 del Codigo civil, que para que sea valido el
testamento olografo debera estar escrito todo el y firmado por testador, con
expression del año, mes y dia en que se otorque, resulta evidente que para
la validez y eficacia de esos testamentos, no basta la demostracion mas o
menos cumplida de que cuando se otorgaron se Ilenaron todos esos
requisitos, sino que de la expresada redaccion el precepto legal, y por el
tiempo en que el verbo se emplea, se desprende la necesidad de que el
documento se encuentre en dichas condiciones en el momento de ser
presentado a la Autoridad competente, para au adveracion y
protocolizacion; y como consecuencia ineludible de ello, forzoso es affirmar
que el de autos carece de validez y aficacia, por no estarfirmado por el
testador, cualquiera que sea la causa de la falta de firma, y sin perjuicio de
las acciones que puedan ejercitar los perjudicados, bien para pedir
indemnizacion por el perjuicio a la persona culpable, si la hubiere, o su
castigo en via criminal si procediere, por constituir dicha omision un defecto
insubsanable . . . .
This holding aligns with the ideas on holographic wills in the Fuero Juzgo,
admittedly the basis of the Spanish Civil Code provisions on the matter.6
PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V, ley 15--E
depues que los herederos e sus fijos ovieren esta manda, fasta ... annos
muestrenla al obispo de la tierra, o al juez fasta VI meses y el obispo o el juez
tomen otros tales tres escritos, que fuesen fechos por su mano daquel que
fizo la manda; e por aquellos escriptos, si semjara la letra de la manda, sea
confirmada la manda. E depues que todo esto fuere connoscido, el obispo o
el juez, o otras testimonios confirmen el escripto de la manda otra vez, y en
esta manera vala la manda. (Art. 689, Scaevola--Codigo Civil.)
(According to the Fuero above, the will itself must be compared with
specimens of the testators handwriting.)
All of which can only mean: the courts will not distribute the property of the
deceased in accordance with his holographic will, unless they are shown his
handwriting and signature.7
Parenthetically, it may be added that even the French Civil Law considers the
loss of the holographic will to be fatal. (Planiol y Ripert, Derecho Civil
Frances, traduccion por Diaz Cruz, 1946, Tomo V, page 555).
Taking all the above circumstances together, we reach the conclusion that
the execution and the contents of a lost or destroyed holographic will may
not be proved by the bare testimony of witnesses who have seen and/or
read such will.8
Under the provisions of Art. 838 of the New Civil Code, we are empowered
to adopt this opinion as a Rule of Court for the allowance of such
holographic wills. We hesitate, however, to make this Rule decisive of this
controversy, simultaneously with its promulgation. Anyway, decision of the
appeal may rest on the sufficiency, rather the insufficiency, of the evidence
presented by petitioner Fausto E. Gan.

At this point, before proceeding further, it might be convenient to explain
why, unlike holographic wills, ordinary wills may be proved by testimonial
evidence when lost or destroyed. The difference lies in the nature of the wills.
In the first, the only guarantee of authenticity is the handwriting itself; in the
second, the testimony of the subscribing or instrumental witnesses (and of
the notary, now). The loss of the holographic will entails the loss of the only
medium of proof; if the ordinary will is lost, the subscribing witnesses are
available to authenticate.
In the case of ordinary wills, it is quite hard to convince three witnesses (four
with the notary) deliberately to lie. And then their lies could be checked and
exposed, their whereabouts and acts on the particular day, the likelihood
that they would be called by the testator, their intimacy with the testator,
etc. And if they were intimates or trusted friends of the testator they are not
likely to end themselves to any fraudulent scheme to distort his wishes. Last
but not least, they can not receive anything on account of the will.
Whereas in the case of holographic wills, if oral testimony were admissible9
only one man could engineer the fraud this way: after making a clever or
passable imitation of the handwriting and signature of the deceased, he may
contrive to let three honest and credible witnesses see and read the forgery;
and the latter, having no interest, could easily fall for it, and in court they
would in all good faith affirm its genuineness and authenticity. The will
having been lost — the forger may have purposely destroyed it in an
"accident" — the oppositors have no way to expose the trick and the error,
because the document itself is not at hand. And considering that the
holographic will may consist of two or three pages, and only one of them
need be signed, the substitution of the unsigned pages, which may be the
most important ones, may go undetected.
If testimonial evidence of holographic wills be permitted, one more
objectionable feature — feasibility of forgery — would be added to the
several objections to this kind of wills listed by Castan, Sanchez Roman and
Valverde and other well-known Spanish Commentators and teachers of Civil
Law.10
One more fundamental difference: in the case of a lost will, the three
subscribing witnesses would be testifying to a fact which they saw, namely
the act of the testator of subscribing the will; whereas in the case of a lost
holographic will, the witnesses would testify as to their opinion of the
handwriting which they allegedly saw, an opinion which can not be tested in
court, nor directly contradicted by the oppositors, because the handwriting
itself is not at hand.
Turning now to the evidence presented by the petitioner, we find ourselves
sharing the trial judge's disbelief. In addition to the dubious circumstances
described in the appealed decision, we find it hard to believe that the
deceased should show her will precisely to relatives who had received
nothing from it: Socorro Olarte and Primitivo Reyes. These could pester her
into amending her will to give them a share, or threaten to reveal its
execution to her husband Ildefonso Yap. And this leads to another point: if
she wanted so much to conceal the will from her husband, why did she not
entrust it to her beneficiaries? Opportunity to do so was not lacking: for
instance, her husband's trip to Davao, a few days after the alleged execution
of the will.
In fine, even if oral testimony were admissible to establish and probate a lost
holographic will, we think the evidence submitted by herein petitioner is so
tainted with improbabilities and inconsistencies that it fails to measure up to
that "clear and distinct" proof required by Rule 77, sec. 6.11
Wherefore, the rejection of the alleged will must be sustained.
Judgment affirmed, with costs against petitioner.
G.R. No. L-58509 December 7, 1982
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B.
BONILLA deceased, MARCELA RODELAS, petitioner-appellant,
vs.AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO
SUMULONG, intervenor.
Luciano A. Joson for petitioner-appellant.
Cesar Paralejo for oppositor-appellee.
RELOVA, J.:
This case was certified to this Tribunal by the Court of Appeals for final
determination pursuant to Section 3, Rule 50 of the Rules of Court.
As found by the Court of Appeals:
... On January 11, 1977, appellant filed a petition with the Court of First
Instance of Rizal for the probate of the holographic will of Ricardo B. Bonilla
and the issuance of letters testamentary in her favor. The petition, docketed
as Sp. Proc. No. 8432, was opposed by the appellees Amparo Aranza Bonilla,
Wilferine Bonilla Treyes Expedita Bonilla Frias and Ephraim Bonilla on the
following grounds:
(1) Appellant was estopped from claiming that the deceased left a will by
failing to produce the will within twenty days of the death of the testator as
required by Rule 75, section 2 of the Rules of Court;
(2) The alleged copy of the alleged holographic will did not contain a
disposition of property after death and was not intended to take effect after
death, and therefore it was not a will
(3) The alleged hollographic will itself,and not an alleged copy thereof, must
be produced, otherwise it would produce no effect, as held in Gam v. Yap,
104 Phil. 509; and
(4 ) The deceased did not leave any will, holographic or otherwise, executed
and attested as required by law.
The appellees likewise moved for the consolidation of the case with another
case Sp. Proc. No, 8275). Their motion was granted by the court in an order
dated April 4, 1977.
On November 13, 1978, following the consolidation of the cases, the
appellees moved again to dismiss the petition for the probate of the will.
They argued that:
(1) The alleged holographic was not a last will but merely an
instruction as to the management and improvement of the schools and
colleges founded by decedent Ricardo B. Bonilla; and
(2) Lost or destroyed holographic wills cannot be proved by secondary
evidence unlike ordinary wills.
Upon opposition of the appellant, the motion to dismiss was denied by the
court in its order of February 23, 1979.
The appellees then filed a motion for reconsideration on the ground that the
order was contrary to law and settled pronouncements and rulings of the
Supreme Court, to which the appellant in turn filed an opposition. On July
23, 1979, the court set aside its order of February 23, 1979 and dismissed the
petition for the probate of the will of Ricardo B. Bonilla. The court said:
... It is our considered opinion that once the original copy of the holographic
will is lost, a copy thereof cannot stand in lieu of the original.
In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that
'in the matter of holographic wills the law, it is reasonable to suppose,
regards the document itself as the material proof of authenticity of said wills.
MOREOVER, this Court notes that the alleged holographic will was executed
on January 25, 1962 while Ricardo B. Bonilla died on May 13, 1976. In view of
the lapse of more than 14 years from the time of the execution of the will to
the death of the decedent, the fact that the original of the will could not be
located shows to our mind that the decedent had discarded before his death
his allegedly missing Holographic Will.

Appellant's motion for reconsideration was denied. Hence, an appeal to the

Court of Appeals in which it is contended that the dismissal of appellant's
petition is contrary to law and well-settled jurisprudence.

On July 7, 1980, appellees moved to forward the case to this Court on the
ground that the appeal does not involve question of fact and alleged that
the trial court committed the following assigned errors:

I. THE LOWER COURT ERRED IN HOLDING THAT A LOST

HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY THEREOF;

II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS
DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL;

III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.

The only question here is whether a holographic will which was lost or cannot
be found can be proved by means of a photostatic copy. Pursuant to Article
811 of the Civil Code, probate of holographic wills is the allowance of the will
by the court after its due execution has been proved. The probate may be
uncontested or not. If uncontested, at least one Identifying witness is
required and, if no witness is available, experts may be resorted to. If
contested, at least three Identifying witnesses are required. However, if the
holographic will has been lost or destroyed and no other copy is available,
the will can not be probated because the best and only evidence is the
handwriting of the testator in said will. It is necessary that there be a
comparison between sample handwritten statements of the testator and the
handwritten will. But, a photostatic copy or xerox copy of the holographic
will may be allowed because comparison can be made with the standard
writings of the testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court
ruled that "the execution and the contents of a lost or destroyed holographic
will may not be proved by the bare testimony of witnesses who have seen
and/or read such will. The will itself must be presented; otherwise, it shall
produce no effect. The law regards the document itself as material proof of
authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may
be proved by a photographic or photostatic copy. Even a mimeographed or
carbon copy; or by other similar means, if any, whereby the authenticity of
the handwriting of the deceased may be exhibited and tested before the
probate court," Evidently, the photostatic or xerox copy of the lost or
destroyed holographic will may be admitted because then the authenticity
of the handwriting of the deceased can be determined by the probate court.

WHEREFORE, the order of the lower court dated October 3, 1979, denying
appellant's motion for reconsideration dated August 9, 1979, of the Order
dated July 23, 1979, dismissing her petition to approve the will of the late
Ricardo B. Bonilla, is hereby SET ASIDE.

SO ORDERED.