G.R. No.

L-38338 January 28, 1985

IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND BIBIANA ROXAS
DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS DE JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent.

Raul S. Sison Law Office for petitioners.

Rafael Dinglasan, Jr. for heir M. Roxas.

Ledesma, Guytingco Velasco and Associates for Ledesa and A. R. de Jesus.

GUTIERREZ, JR., J.:

This is a petition for certiorari to set aside the order of respondent Hon. Jose C. Colayco, Presiding Judge
Court of First Instance of Manila, Branch XXI disallowing the probate of the holographic Will of the
deceased Bibiana Roxas de Jesus.

The antecedent facts which led to the filing of this petition are undisputed.

After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus, Special Proceeding No.
81503 entitled "In the Matter of the Intestate Estate of Andres G. de Jesus and Bibiana Roxas de Jesus"
was filed by petitioner Simeon R. Roxas, the brother of the deceased Bibiana Roxas de Jesus.

On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator. After Letters of
Administration had been granted to the petitioner, he delivered to the lower court a document purporting
to be the holographic Will of the deceased Bibiana Roxas de Jesus. On May 26, 1973, respondent Judge
Jose Colayco set the hearing of the probate of the holographic Win on July 21, 1973.

Petitioner Simeon R. Roxas testified that after his appointment as administrator, he found a notebook
belonging to the deceased Bibiana R. de Jesus and that on pages 21, 22, 23 and 24 thereof, a letter-win
addressed to her children and entirely written and signed in the handwriting of the deceased Bibiana R.
de Jesus was found. The will is dated "FEB./61 " and states: "This is my win which I want to be respected
although it is not written by a lawyer. ...

The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro Roxas de Jesus and
Manuel Roxas de Jesus who likewise testified that the letter dated "FEB./61 " is the holographic Will of
their deceased mother, Bibiana R. de Jesus. Both recognized the handwriting of their mother and
positively Identified her signature. They further testified that their deceased mother understood English,
the language in which the holographic Will is written, and that the date "FEB./61 " was the date when said
Will was executed by their mother.

Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate" assailing the
purported holographic Will of Bibiana R. de Jesus because a it was not executed in accordance with law,
(b) it was executed through force, intimidation and/or under duress, undue influence and improper
pressure, and (c) the alleged testatrix acted by mistake and/or did not intend, nor could have intended the
said Will to be her last Will and testament at the time of its execution.

On August 24, 1973, respondent Judge Jose C. Colayco issued an order allowing the probate of the
holographic Will which he found to have been duly executed in accordance with law.
Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging inter alia that the alleged
holographic Will of the deceased Bibiana R. de Jesus was not dated as required by Article 810 of the Civil
Code. She contends that the law requires that the Will should contain the day, month and year of its
execution and that this should be strictly complied with.

On December 10, 1973, respondent Judge Colayco reconsidered his earlier order and disallowed the
probate of the holographic Will on the ground that the word "dated" has generally been held to include the
month, day, and year. The dispositive portion of the order reads:

WHEREFORE, the document purporting to be the holographic Will of Bibiana Roxas de

Jesus, is hereby disallowed for not having been executed as required by the law. The
order of August 24, 1973 is hereby set aside.

The only issue is whether or not the date "FEB./61 " appearing on the holographic Will of the deceased
Bibiana Roxas de Jesus is a valid compliance with the Article 810 of the Civil Code which reads:

ART. 810. 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.

The petitioners contend that while Article 685 of the Spanish Civil Code and Article 688 of the Old Civil
Code require the testator to state in his holographic Win the "year, month, and day of its execution," the
present Civil Code omitted the phrase Año mes y dia and simply requires that the holographic Will should
be dated. The petitioners submit that the liberal construction of the holographic Will should prevail.

Respondent Luz Henson on the other hand submits that the purported holographic Will is void for non-
compliance with Article 810 of the New Civil Code in that the date must contain the year, month, and day
of its execution. The respondent contends that Article 810 of the Civil Code was patterned after Section
1277 of the California Code and Section 1588 of the Louisiana Code whose Supreme Courts had
consistently ruled that the required date includes the year, month, and day, and that if any of these is
wanting, the holographic Will is invalid. The respondent further contends that the petitioner cannot plead
liberal construction of Article 810 of the Civil Code because statutes prescribing the formalities to be
observed in the execution of holographic Wills are strictly construed.

We agree with the petitioner.

This will not be the first time that this Court departs from a strict and literal application of the statutory
requirements regarding the due execution of Wills. We should not overlook the liberal trend of the Civil
Code in the manner of execution of Wills, the purpose of which, in case of doubt is to prevent intestacy —

The underlying and fundamental objectives permeating the provisions of the law on wigs
in this Project consists in the liberalization of the manner of their execution with the end in
view of giving the testator more freedom in expressing his last wishes, but with sufficien
safeguards and restrictions to prevent the commission of fraud and the exercise of undue
and improper pressure and influence upon the testator.

This objective is in accord with the modem tendency with respect to the formalities in the
execution of wills. (Report of the Code Commission, p. 103)

In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v. Bustos (27 SCRA 327) he
emphasized that:

xxx xxx xxx

 ... The law has a tender regard for the will of the testator expressed in his last will and
testament on the ground that any disposition made by the testator is better than that
which the law can make. For this reason, intestate succession is nothing more than a
disposition based upon the presumed will of the decedent.

Thus, the prevailing policy is to require satisfaction of the legal requirements in order to guard against
fraud and bad faith but without undue or unnecessary curtailment of testamentary privilege Icasiano v.
Icasiano, 11 SCRA 422). If a Will has been executed in substantial compliance with the formalities of the
law, and the possibility of bad faith and fraud in the exercise thereof is obviated, said Win should be
admitted to probate (Rey v. Cartagena 56 Phil. 282). Thus,

xxx xxx xxx

... More than anything else, the facts and circumstances of record are to be considered in
the application of any given rule. If the surrounding circumstances point to a regular
execution of the wilt and the instrument appears to have been executed substantially in
accordance with the requirements of the law, the inclination should, in the absence of any
suggestion of bad faith, forgery or fraud, lean towards its admission to probate, although
the document may suffer from some imperfection of language, or other non-essential
defect. ... (Leynez v. Leynez 68 Phil. 745).

If the testator, in executing his Will, attempts to comply with all the requisites, although compliance is not
literal, it is sufficient if the objective or purpose sought to be accomplished by such requisite is actually
attained by the form followed by the testator.

The purpose of the solemnities surrounding the execution of Wills has been expounded by this Court
in Abangan v. Abanga 40 Phil. 476, where we ruled 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. ...

In particular, a complete date is required to provide against such contingencies as that of two competing
Wills executed on the same day, or of a testator becoming insane on the day on which a Will was
executed (Velasco v. Lopez, 1 Phil. 720). There is no such contingency in this case.

We have carefully reviewed the records of this case and found no evidence of bad faith and fraud in its
execution nor was there any substitution of Wins and Testaments. There is no question that the
holographic Will of the deceased Bibiana Roxas de Jesus was entirely written, dated, and signed by the
testatrix herself and in a language known to her. There is also no question as to its genuineness and due
execution. All the children of the testatrix agree on the genuineness of the holographic Will of their mother
and that she had the testamentary capacity at the time of the execution of said Will. The objection
interposed by the oppositor-respondent Luz Henson is that the holographic Will is fatally defective
because the date "FEB./61 " appearing on the holographic Will is not sufficient compliance with Article
810 of the Civil Code. This objection is too technical to be entertained.

As a general rule, the "date" in a holographic Will should include the day, month, and year of its
execution. However, when as in the case at bar, there is no appearance of fraud, bad faith, undue
influence and pressure and the authenticity of the Will is established and the only issue is whether or not
the date "FEB./61" appearing on the holographic Will is a valid compliance with Article 810 of the Civil
Code, probate of the holographic Will should be allowed under the principle of substantial compliance.

WHEREFORE, the instant petition is GRANTED. The order appealed from is REVERSED and SET
ASIDE and the order allowing the probate of the holographic Will of the deceased Bibiana Roxas de
Jesus is reinstated.
SO ORDERED.

G.R. Nos. 83843-44 April 5, 1990

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF MELECIO LABRADOR. SAGRADO
LABRADOR (Deceased), substituted by ROSITA LABRADOR, ENRICA LABRADOR, and
CRISTOBAL LABRADOR, petitioners-appellants,
vs.
COURT OF APPEALS, 1 GAUDENCIO LABRADOR, and JESUS LABRADOR, respondents-appellees.

Benjamin C. Santos Law Offices for petitioners.

Rodrigo V. Fontelera for private respondents.

PARAS, J.:

The sole issue in this case is whether or not the alleged holographic will of one Melecio Labrador
is dated, as provided for in Article 8102 of the New Civil Code.

The antecedent and relevant facts are as follows: On June 10, 1972, Melecio Labrador died in the
Municipality of Iba, province of Zambales, where he was residing, leaving behind a parcel of land
designated as Lot No. 1916 under Original Certificate of Title No. P-1652, and the following heirs, namely:
Sagrado, Enrica, Cristobal, Jesus, Gaudencio, Josefina, Juliana, Hilaria and Jovita, all surnamed
Labrador, and a holographic will.

On July 28, 1975, Sagrado Labrador (now deceased but substituted by his heirs), Enrica Labrador and
Cristobal Labrador, filed in the court a quo a petition for the probate docketed as Special Proceeding No.
922-I of the alleged holographic will of the late Melecio Labrador.

Subsequently, on September 30, 1975, Jesus Labrador (now deceased but substituted by his heirs), and
Gaudencio Labrador filed an opposition to the petition on the ground that the will has been extinguished
or revoked by implication of law, alleging therein that on September 30, 1971, that is, before Melecio's
death, for the consideration of Six Thousand (P6,000) Pesos, testator Melecio executed a Deed of
Absolute Sale, selling, transferring and conveying in favor of oppositors Jesus and Gaudencio Lot No.
1916 and that as a matter of fact, O.C.T. No. P-1652 had been cancelled by T.C.T. No. T-21178. Earlier
however, in 1973, Jesus Labrador sold said parcel of land to Navat for only Five Thousand (P5,000)
Pesos. (Rollo, p. 37)

Sagrado thereupon filed, on November 28, 1975, against his brothers, Gaudencio and Jesus, for the
annulment of said purported Deed of Absolute Sale over a parcel of land which Sagrado allegedly had
already acquired by devise from their father Melecio Labrador under a holographic will executed on
March 17, 1968, the complaint for annulment docketed as Civil Case No. 934-I, being premised on the
fact that the aforesaid Deed of Absolute Sale is fictitious.

After both parties had rested and submitted their respective evidence, the trial court rendered a joint
decision dated February 28, 1985, allowing the probate of the holographic will and declaring null and void
the Deed of Absolute sale. The court a quo had also directed the respondents (the defendants in Civil
Case No. 934-I) to reimburse to the petitioners the sum of P5,000.00 representing the redemption price
for the property paid by the plaintiff-petitioner Sagrado with legal interest thereon from December 20,
1976, when it was paid to vendee a retro.
Respondents appealed the joint decision to the Court of Appeals, which on March 10, 1988 modified said
joint decision of the court a quo by denying the allowance of the probate of the will for being undated and
reversing the order of reimbursement. Petitioners' Motion for Reconsideration of the aforesaid decision
was denied by the Court of Appeals, in the resolution of June 13, 1988. Hence, this petition.

Petitioners now assign the following errors committed by respondent court, to wit:

THE COURT OF APPEALS ERRED IN NOT ALLOWING AND APPROVING THE PROBATE OF
THE HOLOGRAPHIC WILL OF THE TESTATOR MELECIO LABRADOR; and

II

THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER OF THE LOWER COURT
DIRECTING THE REIMBURSEMENT OF THE FIVE THOUSAND PESOS REPRESENTING
THE REDEMPTION PRICE WAS ERRONEOUS.

The alleged undated holographic will written in Ilocano translated into English, is quoted as follows:

ENGLISH INTERPRETATION OF THE WILL OF THE

LATE MELECIO LABRADOR WRITTEN IN ILOCANO
BY ATTY. FIDENCIO L. FERNANDEZ

I — First Page

This is also where it appears in writing of the place which is assigned and shared or the partition
in favor of SAGRADO LABRADOR which is the fishpond located and known place as Tagale.

And this place that is given as the share to him, there is a measurement of more or less one
hectare, and the boundary at the South is the property and assignment share of ENRICA
LABRADOR, also their sister, and the boundary in the West is the sea, known as the SEA as it is,
and the boundary on the NORTH is assignment belonging to CRISTOBAL LABRADOR, who
likewise is also their brother. That because it is now the time for me being now ninety three (93)
years, then I feel it is the right time for me to partition the fishponds which were and had been
bought or acquired by us, meaning with their two mothers, hence there shall be no differences
among themselves, those among brothers and sisters, for it is I myself their father who am
making the apportionment and delivering to each and everyone of them the said portion and
assignment so that there shall not be any cause of troubles or differences among the brothers
and sisters.

II — Second Page

And this is the day in which we agreed that we are making the partitioning and assigning the
respective assignment of the said fishpond, and this being in the month of March, 17th day, in the
year 1968, and this decision and or instruction of mine is the matter to be followed. And the one
who made this writing is no other than MELECIO LABRADOR, their father.

Now, this is the final disposition that I am making in writing and it is this that should be followed
and complied with in order that any differences or troubles may be forestalled and nothing will
happen along these troubles among my children, and that they will be in good relations among
themselves, brothers and sisters;

And those improvements and fruits of the land; mangoes, bamboos and all coconut trees and all
others like the other kind of bamboo by name of Bayog, it is their right to get if they so need, in
 order that there shall be nothing that anyone of them shall complain against the other, and
against anyone of the brothers and sisters.

III — THIRD PAGE

And that referring to the other places of property, where the said property is located, the same
being the fruits of our earnings of the two mothers of my children, there shall be equal portion of
each share among themselves, and or to be benefitted with all those property, which property we
have been able to acquire.

That in order that there shall be basis of the truth of this writing (WILL) which I am here hereof
manifesting of the truth and of the fruits of our labor which their two mothers, I am signing my
signature below hereof, and that this is what should be complied with, by all the brothers and
sisters, the children of their two mothers — JULIANA QUINTERO PILARISA and CASIANA
AQUINO VILLANUEVA Your father who made this writing (WILL), and he is, MELECIO
LABRADOR y RALUTIN (p. 46, Rollo)

The petition, which principally alleges that the holographic will is really dated, although the date is not in
its usual place, is impressed with merit.

The will has been dated in the hand of the testator himself in perfect compliance with Article
810.1âwphi1 It is worthy of note to quote the first paragraph of the second page of the holographic
will, viz:

And this is the day in which we agreed that we are making the partitioning and assigning the
respective assignment of the said fishpond, and this being in the month of March, 17th day, in the
year 1968, and this decision and or instruction of mine is the matter to be followed. And the one
who made this writing is no other than MELECIO LABRADOR, their father. (emphasis supplied)
(p. 46, Rollo)

The law does not specify a particular location where the date should be placed in the will. The only
requirements are that the date be in the will itself and executed in the hand of the testator. These
requirements are present in the subject will.

Respondents claim that the date 17 March 1968 in the will was when the testator and his beneficiaries
entered into an agreement among themselves about "the partitioning and assigning the respective
assignments of the said fishpond," and was not the date of execution of the holographic will; hence, the
will is more of an "agreement" between the testator and the beneficiaries thereof to the prejudice of other
compulsory heirs like the respondents. This was thus a failure to comply with Article 783 which defines a
will as "an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain
degree the disposition of his estate, to take effect after his death."

Respondents are in error. The intention to show 17 March 1968 as the date of the execution of the will is
plain from the tenor of the succeeding words of the paragraph. As aptly put by petitioner, the will was not
an agreement but a unilateral act of Melecio Labrador who plainly knew that what he was executing was
a will. The act of partitioning and the declaration that such partitioning as the testator's instruction or
decision to be followed reveal that Melecio Labrador was fully aware of the nature of the estate property
to be disposed of and of the character of the testamentary act as a means to control the disposition of his
estate.

Anent the second issue of finding the reimbursement of the P5,000 representing the redemption price as
erroneous, respondent court's conclusion is incorrect. When private respondents sold the property
(fishpond) with right to repurchase to Navat for P5,000, they were actually selling property belonging to
another and which they had no authority to sell, rendering such sale null and void. Petitioners, thus
"redeemed" the property from Navat for P5,000, to immediately regain possession of the property for its
disposition in accordance with the will. Petitioners therefore deserve to be reimbursed the P5,000.

PREMISES CONSIDERED, the decision of the Court of Appeals dated March 10, 1988 is hereby
REVERSED. The holographic will of Melecio Labrador is APPROVED and ALLOWED probate. The
private respondents are directed to REIMBURSE the petitioners the sum of Five Thousand Pesos
(P5,000.00).

SO ORDERED.

G.R. No. 106720 September 15, 1994

SPOUSES ROBERTO AND THELMA AJERO, petitioners,

vs.
THE COURT OF APPEALS AND CLEMENTE SAND, respondents.

Miguel D. Larida for petitioners.

Montilla Law Office for private respondent.

PUNO, J.:

This is an appeal by certiorari from the Decision of the Court of

Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the dispositive portion of which reads;

PREMISES CONSIDERED, the questioned decision of November 19, 1988 of the trial
court is hereby REVERSED and SET ASIDE, and the petition for probate is hereby
DISMISSED. No costs.

The earlier Decision was rendered by the RTC of Quezon City, Branch 94, 2 in Sp. Proc. No. Q-
37171, and the instrument submitted for probate is the holographic will of the late Annie Sand,
who died on November 25, 1982.

In the will, decedent named as devisees, the following: petitioners Roberto and Thelma Ajero, private
respondent Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S.
Sand, and Dr. Jose Ajero, Sr., and their children.

On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance of decedent's
holographic will. They alleged that at the time of its execution, she was of sound and disposing mind, not
acting under duress, fraud or undue influence, and was in every respect capacitated to dispose of her
estate by will.

Private respondent opposed the petition on the grounds that: neither the testament's body nor the
signature therein was in decedent's handwriting; it contained alterations and corrections which were not
duly signed by decedent; and, the will was procured by petitioners through improper pressure and undue
influence. The petition was likewise opposed by Dr. Jose Ajero. He contested the disposition in the will of
a house and lot located in Cabadbaran, Agusan Del Norte. He claimed that said property could not be
conveyed by decedent in its entirety, as she was not its sole owner.

Notwithstanding the oppositions, the trial court admitted the decedent's holographic will to probate. It
found, inter alia:
Considering then that the probate proceedings herein must decide only the question of
identity of the will, its due execution and the testamentary capacity of the testatrix, this
probate court finds no reason at all for the disallowance of the will for its failure to comply
with the formalities prescribed by law nor for lack of testamentary capacity of the testatrix.

For one, no evidence was presented to show that the will in question is different from the
will actually executed by the testatrix. The only objections raised by the oppositors . . .
are that the will was not written in the handwriting of the testatrix which properly refers to
the question of its due execution, and not to the question of identity of will. No other will
was alleged to have been executed by the testatrix other than the will herein presented.
Hence, in the light of the evidence adduced, the identity of the will presented for probate
must be accepted, i.e., the will submitted in Court must be deemed to be the will actually
executed by the testatrix.

xxx xxx xxx

While the fact that it was entirely written, dated and signed in the handwriting of the
testatrix has been disputed, the petitioners, however, have satisfactorily shown in Court
that the holographic will in question was indeed written entirely, dated and signed in the
handwriting of the testatrix. Three (3) witnesses who have convincingly shown knowledge
of the handwriting of the testatrix have been presented and have explicitly and
categorically identified the handwriting with which the holographic will in question was
written to be the genuine handwriting and signature of the testatrix. Given then the
aforesaid evidence, the requirement of the law that the holographic will be entirely
written, dated and signed in the handwriting of the testatrix has been complied with.

xxx xxx xxx

As to the question of the testamentary capacity of the testratix, (private respondent)

Clemente Sand himself has testified in Court that the testatrix was completely in her
sound mind when he visited her during her birthday celebration in 1981, at or around
which time the holographic will in question was executed by the testatrix. To be of sound
mind, it is sufficient that the testatrix, at the time of making the will, knew the value of the
estate to be disposed of, the proper object of her bounty, and 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.
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.

Leandro H. Fernandez for petitioner.

Antonio Quintos and Jose M. Yacat for respondents.

MELENCIO-HERRERA, J.:

On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be the sole heir of his
deceased sister, Natividad K. Kalaw, filed a petition before the Court of First Instance of Batangas,
Branch VI, Lipa City, for the probate of her holographic Will executed on December 24, 1968.

The holographic Will reads in full as follows:

My Last will and Testament

In the name of God, Amen.

I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa City, being of sound and
disposing mind and memory, do hereby declare thus to be my last will and testament.

1. It is my will that I'll be burried in the cemetery of the catholic church of Lipa City. In accordance with the
rights of said Church, and that my executrix hereinafter named provide and erect at the expose of my
state a suitable monument to perpetuate my memory.

xxx xxx xxx

The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as her sole heir.
Hence, on November 10, 1971, petitioner ROSA K. Kalaw opposed probate alleging, in substance, that
the holographic Will contained alterations, corrections, and insertions without the proper authentication by
the full signature of the testatrix as required by Article 814 of the Civil Code reading:

Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will
the testator must authenticate the same by his full signature.

ROSA's position was that the holographic Will, as first written, should be given effect and probated so that
she could be the sole heir thereunder.

After trial, respondent Judge denied probate in an Order, dated September 3, 197 3, reading in part:

The document Exhibit "C" was submitted to the National Bureau of Investigation for
examination. The NBI reported that the handwriting, the signature, the insertions and/or
additions and the initial were made by one and the same person. Consequently, Exhibit
"C" was the handwriting of the decedent, Natividad K. Kalaw. The only question is
whether the win, Exhibit 'C', should be admitted to probate although the alterations and/or
insertions or additions above-mentioned were not authenticated by the full signature of
the testatrix pursuant to Art. 814 of the Civil Code. The petitioner contends that the
oppositors are estopped to assert the provision of Art. 814 on the ground that they
themselves agreed thru their counsel to submit the Document to the NBI FOR
 EXAMINATIONS. This is untenable. The parties did not agree, nor was it impliedly
understood, that the oppositors would be in estoppel.

The Court finds, therefore, that the provision of Article 814 of the Civil Code is applicable
to Exhibit "C". Finding the insertions, alterations and/or additions in Exhibit "C" not to be
authenticated by the full signature of the testatrix Natividad K. Kalaw, the Court will deny
the admission to probate of Exhibit "C".

WHEREFORE, the petition to probate Exhibit "C" as the holographic will of Natividad K.
Kalaw is hereby denied.

SO ORDERED.

From that Order, GREGORIO moved for reconsideration arguing that since the alterations and/or
insertions were the testatrix, the denial to probate of her holographic Will would be contrary to her right of
testamentary disposition. Reconsideration was denied in an Order, dated November 2, 1973, on the
ground that "Article 814 of the Civil Code being , clear and explicit, (it) requires no necessity for
interpretation."

From that Order, dated September 3, 1973, denying probate, and the Order dated November 2, 1973
denying reconsideration, ROSA filed this Petition for Review on certiorari on the sole legal question of
whether or not 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.

SALUD TEODORO VDA. DE PEREZ, petitioner,

vs.
HON. ZOTICO A. TOLETE in his capacity as Presiding Judge, Branch 18, RTC,
Bulacan, respondent.

Natividad T. Perez for petitioner.

Benedicto T. Librojo for private respondents.

QUIASON, J.:

This is a petition for certiorari under Rule 65 of the Revised Rules of Court to set aside the Order dated
November 19, 1986 of the Regional Trial Court, Branch 18, Bulacan presided by respondent Judge Zotico
A. Tolete, in Special Proceedings No. 1793-M.

We grant the petition.

II

Dr. Jose F. Cunanan and his wife, Dr. Evelyn Perez-Cunanan, who became American citizens,
established a successful medical practice in New York, U.S.A. The Cunanans lived at No. 2896 Citation
Drive, Pompey, Syracuse, New York, with their children, Jocelyn, 18; Jacqueline, 16; and Josephine, 14.

On August 23, 1979, Dr. Cunanan executed a last will and testament, bequeathing to his wife "all the
remainder" of his real and personal property at the time of his death "wheresoever situated" (Rollo, p. 35).
In the event he would survive his wife, he bequeathed all his property to his children and grandchildren
with Dr. Rafael G. Cunanan, Jr. as trustee. He appointed his wife as executrix of his last will and
testament and Dr. Rafael G. Cunanan, Jr. as substitute executor. Article VIII of his will states:
 If my wife, EVELYN PEREZ-CUNANAN, and I shall die under such circumstances that
there is not sufficient evidence to determine the order of our deaths, then it shall be
presumed that I predeceased her, and my estate shall be administered and distributed, in
all respects, in accordance with such presumption (Rollo, p. 41).

Four days later, on August 27, Dr. Evelyn P. Cunanan executed her own last will and testament
containing the same provisions as that of the will of her husband. Article VIII of her will states:

If my husband, JOSE F. CUNANAN, and I shall die under such circumstances that there
is not sufficient evidence to determine the order of our deaths, then it shall be presumed
that he predeceased me, and my estate shall be administered and distributed in all
respects, in accordance with such presumption. (Rollo, p. 31).

On January 9, 1982, Dr. Cunanan and his entire family perished when they were trapped by fire that
gutted their home. Thereafter, Dr. Rafael G. Cunanan, Jr. as trustee and substitute executor of the two
wills, filed separate proceedings for the probate thereof with the Surrogate Court of the County of
Onondaga, New York. On April 7, these two wills were admitted to probate and letters testamentary were
issued in his favor.

On February 21, 1983, Salud Teodoro Perez, the mother of Dr. Evelyn P. Cunanan, and petitioner herein,
filed with the Regional P. Cunanan, and petitioner herein, filed with the Regional Trial Court, Malolos,
Bulacan a petition for the reprobate of the two bills ancillary to the probate proceedings in New York. She
also asked that she be appointed the special administratrix of the estate of the deceased couple
consisting primarily of a farm land in San Miguel, Bulacan.

On March 9, the Regional Trial Court, Branch 16, Malolos, Bulacan, presided by Judge Gualberto J. de la
Llana, issued an order, directing the issuance of letters of special administration in favor of petitioner
upon her filing of a P10,000.00 bond. The following day, petitioner posted the bond and took her oath as
special administration.

As her first act of administration, petitioner filed a motion, praying that the Philippine Life Insurance
Company be directed to deliver the proceeds in the amount of P50,000.00 of the life insurance policy
taken by Dr. Jose F. Cunanan with Dr. Evelyn Perez-Cunanan and their daughter Jocelyn as
beneficiaries. The trial court granted the motion.

Counsel for the Philippine American Life Insurance Company then filed a manifestation, stating that said
company then filed a manifestation, stating that said company had delivered to petitioner the amount of
P49,765.85, representing the proceeds of the life insurance policy of Dr. Jose F. Cunanan.

In a motion dated May 19, 1983, petitioner asked that Dr. Rafael Cunanan, Sr. be ordered to deliver to
her a Philippine Trust Company passbook with P25,594.00 in savings deposit, and the Family Savings
Bank time deposit certificates in the total amount of P12,412.52.

On May 31, Atty. Federico Alday filed a notice of appearance as counsel for the heirs of Dr. Jose F.
Cunanan, namely, Dr. Rafael Cunanan, Sr., Priscilla Cunanan Bautista, Lydia Cunanan Ignacio, Felipe F.
Cunanan and Loreto Cunanan Concepcion (Cunanan heirs). He also manifested that before receiving
petitioner's motion of May 19, 1983, his clients were unaware of the filing of the testate estate case and
therefore, "in the interest of simple fair play," they should be notified of the proceedings (Records, p. 110).
He prayed for deferment of the hearing on the motions of May 19, 1983.

Petitioner then filed a counter manifestation dated June 13, 1983, asserting: (1) that the "Cunanan
collaterals are neither heirs nor creditors of the late Dr. Jose F. Cunanan" and therefore, they had "no
legal or proprietary interests to protect" and "no right to intervene"; (2) that the wills of Dr. Jose F.
Cunanan and Dr. Evelyn Perez-Cunanan, being American citizens, were executed in accordance with the
solemnities and formalities of New York laws, and produced "effects in this jurisdiction in accordance with
Art. 16 in relation to Art. 816 of the Civil Code"; (3) that under Article VIII of the two wills, it was presumed
that the husband predeceased the wife; and (4) that "the Cunanan collaterals are neither distributees,
legatees or beneficiaries, much less, heirs as heirship is only by institution" under a will or by operation of
the law of New York (Records, pp. 112-113).

On June 23, the probate court granted petitioner's motion of May 19, 1983. However, on July 21, the
Cunanan heirs filed a motion to nullify the proceedings and to set aside the appointment of, or to
disqualify, petitioner as special administratrix of the estates of Dr. Jose F. Cunanan and Dr. Evelyn Perez-
Cunanan. The motion stated: (1) that being the "brothers and sisters and the legal and surviving heirs" of
Dr. Jose F. Cunanan, they had been "deliberately excluded" in the petition for the probate of the separate
wills of the Cunanan spouses thereby misleading the Bulacan court to believe that petitioner was the sole
heir of the spouses; that such "misrepresentation" deprived them of their right to "due process in violation
of Section 4, Rule 76 of the Revised Rules of Court; (2) that Dr. Rafael G. Cunanan, Jr., the executor of
the estate of the Cunanan spouses, was likewise not notified of the hearings in the Bulacan court; (3) that
the "misrepresentation and concealment committed by" petitioner rendered her unfit to be a special
administratrix; (4) that Dr. Rafael G. Cunanan, Jr. had, by virtue of a verified power of attorney, authorized
his father,
Dr. Rafael Cunanan, Sr., to be his attorney-in-fact; and (5) that Dr. Rafael Cunanan, Sr. is qualified to be
a regular administrator "as practically all of the subject estate in the Philippines belongs to their brother,
Dr. Jose F. Cunanan" (Records, pp. 118-122). Hence, they prayed: (1) that the proceedings in the case
be declared null and void; (2) that the appointment of petitioner as special administratrix be set aside; and
(3) that Dr. Rafael Cunanan, Sr. be appointed the regular administrator of the estate of the deceased
spouses.

Thereafter, the Cunanan heirs filed a motion requiring petitioner to submit an inventory or accounting of
all monies received by her in trust for the estate.

In her opposition, petitioner asserted: (1) that she was the "sole and only heir" of her daughter, Dr. Evelyn
Perez-Cunanan to the exclusion of the "Cunanan collaterals"; hence they were complete strangers to the
proceedings and were not entitled to notice; (2) that she could not have "concealed" the name and
address of Dr. Rafael G. Cunanan, Jr. because his name was prominently mentioned not only in the two
wills but also in the decrees of the American surrogate court; (3) that the rule applicable to the case is
Rule 77, not Rule 76, because it involved the allowance of wills proved outside of the Philippines and that
nowhere in Section 2 of Rule 77 is there a mention of notice being given to the executor who, by the
same provision, should himself file the necessary ancillary proceedings in this country; (4) that even if the
Bulacan estate came from the "capital" of Dr. Jose F. Cunanan, he had willed all his worldly goods to his
wife and nothing to his brothers and sisters; and (5) that Dr. Rafael G. Cunanan, Jr. had unlawfully
disbursed $215,000.00 to the Cunanan heirs, misappropriated $15,000.00 for himself and irregularly
assigned assets of the estates to his American lawyer (Records, pp. 151-160).

In their reply, the Cunanan heirs stressed that on November 24, 1982, petitioner and the Cunanan heirs
had entered into an agreement in the United States "to settle and divide equally the estates," and that
under Section 2 of Rule 77 the "court shall fix a time and place for the hearing and cause notice thereof to
be given as in case of an original will presented for allowance" (Records, pp. 184-185).

Petitioner asked that Dr. Rafael G. Cunanan, Jr. be cited for contempt of court for failure to comply with
the Order of June 23, 1983 and for appropriating money of the estate for his own benefit. She also
alleged that she had impugned the agreement of November 24, 1982 before the Surrogate Court of
Onondaga, New York which rendered a decision on April 13, 1983, finding that "all assets are payable to
Dr. Evelyn P. Cunanan’s executor to be then distributed pursuant to EPTL4-1.1 subd [a] par [4]" (Rollo, p.
52).

On their part, the Cunanan heirs replied that petitioner was estopped from claiming that they were heirs
by the agreement to divide equally the estates. They asserted that by virtue of Section 2 of Rule 77 of the
Rules of Court, the provisions of Sections 3, 4 and 5 of Rule 76 on the requirement of notice to all heirs,
executors, devisees and legatees must be complied with. They reiterated their prayer: (1) that the
proceedings in the case be nullified; (2) that petitioner be disqualified as special administratrix; (3) that
she be ordered to submit an inventory of all goods, chattels and monies which she had received and to
surrender the same to the court; and (4) that Dr. Rafael Cunanan, Sr. be appointed the regular
administrator.

Petitioner filed a rejoinder, stating that in violation of the April 13, 1983 decision of the American court Dr.
Rafael G. Cunanan, Jr. made "unauthorized disbursements from the estates as early as July 7, 1982"
(Records, p. 231). Thereafter, petitioner moved for the suspension of the proceedings as she had "to
attend to the settlement proceedings" of the estate of the Cunanan spouses in New York (Records, p.
242). The Cunanans heirs opposed this motion and filed a manifestation, stating that petitioner had
received $215,000.00 "from the Surrogate’s Court as part of legacy" based on the aforesaid agreement of
November 24, 1982 (Records, p. 248).

On February 21, 1984, Judge de la Llana issued an order, disallowing the reprobate of the two wills,
recalling the appointment of petitioner as special administratrix, requiring the submission of petitioner of
an inventory of the property received by her as special administratrix and declaring all pending incidents
moot and academic. Judge de la Llana reasoned out that petitioner failed to prove the law of New York on
procedure and allowance of wills and the court had no way of telling whether the wills were executed in
accordance with the law of New York. In the absence of such evidence, the presumption is that the law of
succession of the foreign country is the same as the law of the Philippines. However, he noted, that there
were only two witnesses to the wills of the Cunanan spouses and the Philippine law requires three
witnesses and that the wills were not signed on each and every page, a requirement of the Philippine law.

On August 27, 1985, petitioner filed a motion for reconsideration of the Order dated February 21, 1984,
where she had sufficiently proven the applicable laws of New York governing the execution of last wills
and testaments.

On the same day, Judge de la Llana issued another order, denying the motion of petitioner for the
suspension of the proceedings but gave her 15 days upon arrival in the country within which to act on the
other order issued that same day. Contending that the second portion of the second order left its finality to
the discretion of counsel for petitioner, the Cunanans filed a motion for the reconsideration of the
objectionable portion of the said order so that it would conform with the pertinent provisions of the
Judiciary Reorganization Act of 1980 and the Interim Rules of Court.

On April 30, 1985, the respondent Judge of Branch 18 of the Regional Trial Court, Malolos, to which the
reprobate case was reassigned, issued an order stating that "(W)hen the last will and testament . . . was
denied probate," the case was terminated and therefore all orders theretofore issued should be given
finality. The same Order amended the February 21, 1984 Order by requiring petitioner to turn over to the
estate the inventoried property. It considered the proceedings for all intents and purposes, closed
(Records,
p. 302).

On August 12, petitioner filed a motion to resume proceedings on account of the final settlement and
termination of the probate cases in New York. Three days later, petitioner filed a motion praying for the
reconsideration of the Order of April 30, 1985 on the strength of the February 21, 1984 Order granting her
a period of 15 days upon arrival in the country within which to act on the denial of probate of the wills of
the Cunanan spouses. On August 19, respondent Judge granted the motion and reconsidered the Order
of April 30, 1985.

On August 29, counsel for petitioner, who happens to be her daughter, Natividad, filed a motion praying
that since petitioner was ailing in Fort Lee, New Jersey, U.S.A. and therefore incapacitated to act as
special administratrix, she (the counsel) should be named substitute special administratrix. She also filed
a motion for the reconsideration of the Order of February 21, 1984, denying probate to the wills of the
Cunanan spouses, alleging that respondent Judge "failed to appreciate the significant probative value of
the exhibits . . . which all refer to the offer and admission to probate of the last wills of the Cunanan
spouses including all procedures undertaken and decrees issued in connection with the said probate"
(Records, pp. 313-323).

Thereafter, the Cunanans heirs filed a motion for reconsideration of the Order of August 19, 1985,
alleging lack of notice to their counsel.

On March 31, 1986, respondent Judge to which the case was reassigned denied the motion for
reconsideration holding that the documents submitted by petitioner proved "that the wills of the testator
domiciled abroad were properly executed, genuine and sufficient to possess real and personal property;
that letters testamentary were issued; and that proceedings were held on a foreign tribunal and proofs
taken by a competent judge who inquired into all the facts and circumstances and being satisfied with his
findings issued a decree admitting to probate the wills in question." However, respondent Judge said that
the documents did not establish the law of New York on the procedure and allowance of wills (Records, p.
381).

On April 9, 1986, petitioner filed a motion to allow her to present further evidence on the foreign law. After
the hearing of the motion on April 25, 1986, respondent Judge issued an order wherein he conceded that
insufficiency of evidence to prove the foreign law was not a fatal defect and was curable by adducing
additional evidence. He granted petitioner 45 days to submit the evidence to that effect.

However, without waiting for petitioner to adduce the additional evidence, respondent Judge ruled in his
order dated June 20, 1986 that he found "no compelling reason to disturb its ruling of March 31, 1986" but
allowed petitioner to "file anew the appropriate probate proceedings for each of the testator" (Records, p.
391).

The Order dated June 20, 1986 prompted petitioner to file a second motion for reconsideration stating
that she was "ready to submit further evidence on the law obtaining in the State of New York" and praying
that she be granted "the opportunity to present evidence on what the law of the State of New York has on
the probate and allowance of wills" (Records, p. 393).

On July 18, respondent Judge denied the motion holding that to allow the probate of two wills in a single
proceeding "would be a departure from the typical and established mode of probate where one petition
takes care of one will." He pointed out that even in New York "where the wills in question were first
submitted for probate, they were dealt with in separate proceedings" (Records, p. 395).

On August 13, 1986, petitioner filed a motion for the reconsideration of the Order of July 18, 1986, citing
Section 3, Rule 2 of the Rules of Court, which provides that no party may institute more than one suit for
a single cause of action. She pointed out that separate proceedings for the wills of the spouses which
contain basically the same provisions as they even named each other as a beneficiary in their respective
wills, would go against "the grain of inexpensive, just and speedy determination of the proceedings"
(Records, pp. 405-407).

On September 11, 1986, petitioner filed a supplement to the motion for reconsideration, citing Benigno
v. De La Peña, 57 Phil. 305 (1932) (Records,
p. 411), but respondent Judge found that this pleading had been filed out of time and that the adverse
party had not been furnished with a copy thereof. In her compliance, petitioner stated that she had
furnished a copy of the motion to the counsel of the Cunanan heirs and reiterated her motion for a "final
ruling on her supplemental motion" (Records, p. 421).

On November 19, respondent Judge issued an order, denying the motion for reconsideration filed by
petitioner on the grounds that "the probate of separate wills of two or more different persons even if they
are husband and wife cannot be undertaken in a single petition" (Records, pp. 376-378).
Hence, petitioner instituted the instant petition, arguing that the evidence offered at the hearing of April
11, 1983 sufficiently proved the laws of the State of New York on the allowance of wills, and that the
separate wills of the Cunanan spouses need not be probated in separate proceedings.

II

Petitioner contends that the following pieces of evidence she had submitted before respondent Judge are
sufficient to warrant the allowance of the wills:

(a) two certificates of authentication of the respective wills of Evelyn and Jose by the
Consulate General of the Philippines (Exhs. "F" and "G");

(b) two certifications from the Secretary of State of New York and Custodian of the Great
Seal on the facts that Judge Bernard L. Reagan is the Surrogate of the Country of
Onondaga which is a court of record, that his signature and seal of office are genuine,
and that the Surrogate is duly authorized to grant copy of the respective wills of Evelyn
and Jose
(Exhs. "F-1" and "G-1");

(c) two certificates of Judge Reagan and Chief Clerk Donald E. Moore stating that they
have in their records and files the said wills which were recorded on April 7, 1982 (Exhs.
"F-2" and "G-2");

(d) the respective wills of Evelyn and Jose (Exhs. "F-3", "F-6" and Exh. "G-3" — "G-6");

(e) certificates of Judge Reagan and the Chief Clerk certifying to the genuineness and
authenticity of the exemplified copies of the two wills (Exhs. "F-7" and "F-7");

(f) two certificates of authentication from the Consulate General of the Philippines in New
York (Exh. "H" and "F").

(g) certifications from the Secretary of State that Judge Reagan is duly authorized to
grant exemplified copies of the decree of probate, letters testamentary and all
proceedings had and proofs duly taken
(Exhs. "H-1" and "I-1");

(h) certificates of Judge Reagan and the Chief Clerk that letters testamentary were
issued to Rafael G. Cunanan (Exhs. "H-2" and "I-2");

(i) certification to the effect that it was during the term of Judge Reagan that a decree
admitting the wills to probate had been issued and appointing Rafael G. Cunanan as
alternate executor (Exhs. "H-3" and
"I-10");

(j) the decrees on probate of the two wills specifying that proceedings were held and
proofs duly taken (Exhs. "H-4" and "I-5");

(k) decrees on probate of the two wills stating that they were properly executed, genuine
and valid and that the said instruments were admitted to probate and established as wills
valid to pass real and personal property (Exhs. "H-5" and "I-5"); and

(l) certificates of Judge Reagan and the Chief Clerk on the genuineness and authenticity
of each other’s signatures in the exemplified copies of the decrees of probate, letters
testamentary and proceedings held in their court (Exhs. "H-6" and "I-6") (Rollo, pp. 13-
16).
Petitioner adds that the wills had been admitted to probate in the Surrogate Court’s Decision of April 13,
1983 and that the proceedings were terminated on November 29, 1984.

The respective wills of the Cunanan spouses, who were American citizens, will only be effective in this
country upon compliance with the following provision of the Civil Code of the Philippines:

Art. 816. The will of an alien who is abroad produces effect in the Philippines if made with
the formalities prescribed by the law of the place in which he resides, or according to the
formalities observed in his country, or in conformity with those which this Code
prescribes.

Thus, proof that both wills conform with the formalities prescribed by New York laws or by Philippine laws
is imperative.

The evidence necessary for the reprobate or allowance of wills which have been probated outside of the
Philippines are as follows: (1) the due execution of the will in accordance with the foreign laws; (2) the
testator has his domicile in the foreign country and not in the Philippines; (3) the will has been admitted to
probate in such country; (4) the fact that the foreign tribunal is a probate court, and (5) the laws of a
foreign country on procedure and allowance of wills (III Moran Commentaries on the Rules of Court, 1970
ed., pp. 419-429; Suntay v. Suntay, 95 Phil. 500 [1954]; Fluemer v. Hix, 54 Phil. 610 [1930]). Except for
the first and last requirements, the petitioner submitted all the needed evidence.

The necessity of presenting evidence on the foreign laws upon which the probate in the foreign country is
based is impelled by the fact that our courts cannot take judicial notice of them (Philippine Commercial
and Industrial Bank v. Escolin, 56 SCRA 266 [1974]).

Petitioner must have perceived this omission as in fact she moved for more time to submit the pertinent
procedural and substantive New York laws but which request respondent Judge just glossed over. While
the probate of a will is a special proceeding wherein courts should relax the rules on evidence, the goal is
to receive the best evidence of which the matter is susceptible before a purported will is probated or
denied probate (Vda. de Ramos v. Court of Appeals, 81 SCRA 393 [1978]).

There is merit in petitioner’s insistence that the separate wills of the Cunanan spouses should be
probated jointly. Respondent Judge’s view that the Rules on allowance of wills is couched in singular
terms and therefore should be interpreted to mean that there should be separate probate proceedings for
the wills of the Cunanan spouses is too literal and simplistic an approach. Such view overlooks the
provisions of Section 2, Rule 1 of the Revised Rules of Court, which advise that the rules shall be
"liberally construed in order to promote their object and to assist the parties in obtaining just, speedy, and
inexpensive determination of every action and proceeding."

A literal application of the Rules should be avoided if they would only result in the delay in the
administration of justice (Acain v. Intermediate Appellate Court, 155 SCRA 100 [1987]; Roberts v.
Leonidas, 129 SCRA 33 [1984]).

What the law expressly prohibits is the making of joint wills either for the testator’s reciprocal benefit or for
the benefit of a third person (Civil Code of the Philippines, Article 818). In the case at bench, the Cunanan
spouses executed separate wills. Since the two wills contain essentially the same provisions and pertain
to property which in all probability are conjugal in nature, practical considerations dictate their joint
probate. As this Court has held a number of times, it will always strive to settle the entire controversy in a
single proceeding leaving no root or branch to bear the seeds of future litigation (Motoomull v. Dela Paz,
187 SCRA 743 [1990]).

This petition cannot be completely resolved without touching on a very glaring fact — petitioner has
always considered herself the sole heir of
Dr. Evelyn Perez Cunanan and because she does not consider herself an heir of Dr. Jose F. Cunanan,
she noticeably failed to notify his heirs of the filing of the proceedings. Thus, even in the instant petition,
she only impleaded respondent Judge, forgetting that a judge whose order is being assailed is merely a
nominal or formal party (Calderon v. Solicitor General, 215 SCRA 876 [1992]).

The rule that the court having jurisdiction over the reprobate of a will shall "cause notice thereof to be
given as in case of an original will presented for allowance" (Revised Rules of Court, Rule 27, Section 2)
means that with regard to notices, the will probated abroad should be treated as if it were an "original will"
or a will that is presented for probate for the first time. Accordingly, compliance with Sections 3 and 4 of
Rule 76, which require publication and notice by mail or personally to the "known heirs, legatees, and
devisees of the testator resident in the Philippines" and to the executor, if he is not the petitioner, are
required.

The brothers and sisters of Dr. Jose F. Cunanan, contrary to petitioner's claim, are entitled to notices of
the time and place for proving the wills. Under Section 4 of Rule 76 of the Revised Rules of Court, the
"court shall also cause copies of the notice of the time and place fixed for proving the will to be addressed
to the designated or other known heirs, legatees, and devisees of the testator, . . . "

WHEREFORE, the questioned Order is SET ASIDE. Respondent Judge shall allow petitioner reasonable
time within which to submit evidence needed for the joint probate of the wills of the Cunanan spouses and
see to it that the brothers and sisters of Dr. Jose F. Cunanan are given all notices and copies of all
pleadings pertinent to the probate proceedings.

SO ORDERED.

In re will of Josefa Zalamea y Abella, deceased. PEDRO UNSON, Petitioner-Appellee, v. ANTONIO

ABELLA ET AL., opponents-appellants.

Crispin Oben for Appellants.

Pedro Guevara and Carlos Ledesma for appellee

SYLLABUS

1. WILLS; NON-PRODUCTION OF ONE ATTESTING WITNESS. — Though the general rule is that, if
opposition is presented to the probate of a will, all the attesting witnesses must be produced;
nevertheless, there are exceptions to this rule, to wit: When one of the witnesses dead, or cannot be
served with process of the court, or his reputation for truth is questioned, or he appears to be hostile to
the cause of the parties seeking the probate of the will. In such cases the will may be admitted to probate,
if upon the evidence actually introduced the court is satisfied of the due execution of the will, inasmuch as
even if said witness had been produced and had testified against the application, the result would not
have been changed, if the court was satisfied upon the evidence adduced that the will has been executed
in the manner prescribed by the law.

2. ID.; INVENTORY MADE PART OF A WILL; ATTESTATION CLAUSE. — When in a will reference is
made to an inventory of the properties of the testator, which has thus been made a part of the will, if the
will has an attestation clause that meets the requirements of the law, no other attestation clause is
necessary for the said inventory, but that of the will be sufficient for the validity both of the will and the
inventory.

3. ID.; PAGING IN ARABIC NUMERALS. — Paging in inventory with Arabic numerals is in compliance
with the spirit of the law, requiring that the paging of a will be made letters, and is just as valid as paging
with letters A, B, C, etc., under the circumstances stated in the case of Aldaba v. Roque (43 phil 378).
 DECISION

VILLAMOR, J. :

On July 19, 1918, Dona Josefa Zalamea y Abella, single, 60 years old, who was residing in the
municipality of Pagsanjan, Province of Laguna, executed her last will and testament with an attached
inventory of her properties, Exhibits A and A-1, in the presence of three witnesses, who signed with her
all the pages of said documents. The testatrix died on the 6th of January, 1921, and, as the record shows,
the executor appointed in the will, Pedro Unson, filed in the Court of First Instance of Laguna on the 19th
of January of the same year an application for the probate of the will and the issuance of the proper
letters of administration in his favor.

To said application an opposition was presented by Antonio Abella, Ignacia Abella, Avicencia Abella, and
Santiago Vito, alleging that the supposed will of the deceased Zalamea was not executed in conformity
with the provisions of the law, inasmuch as it was not paged correlatively in letters; nor was there any
attestation clause in it, nor was it signed by the testatrix and the witnesses in the presence of each other.

Trial having been held, the judge a quo overruled the opposition of the contestants, and ordered the
probate of the will, Exhibit A, and the inventory, Exhibit A-1, holding that both documents contained the
true and last will of the deceased Josefa Zalamea.

From the judgment of the court below, the contestants have appealed, and in their brief they assign three
errors, which, in their opinion, justify the reversal of the judgment appealed from.

The first error assigned by the appellants as committed by the court below is its finding to the effect that
Exhibit A, said to be the will of the deceased Josefa Zalamea, was executed with all the solemnities
required by the law.

The arguments advanced by appellants’ counsel in support of the first assignment of error tend to
impeach the credibility of the witnesses for the proponent, specially that of Eugenio Zalamea. We have
made a carefully examination of the evidence, but have not found anything that would justify us in
disturbing the finding of the court a quo. The attesting witnesses, Eugenio Zalamea and Gonzalo Abaya,
clearly testify that together with the other witness to the will, Pedro de Jesus, they did sign each and
every page of the will and of the inventory in the presence of each other and of the testatrix, as the latter
did likewise sign all the pages of the will and of the inventory in their presence.

In their brief the appellants intimate that one of the pages of the will was not signed by the testatrix, nor by
the witnesses on the day of the execution of the will, that is, on the 19th of July, 1918, basing their
contention on the testimony of Aurelio Palileo, who says that on one occasion Gonzalo Abaya told him
that one of the pages of the will had not been signed by the witnesses, nor by the testatrix on the day of
its execution. Palileo’s testimony is entirely contradicted by Gonzalo Abaya not only in the direct, but in
the rebuttal, evidence as well. To our mind, Palileo’s testimony cannot prevail over that of the attesting
witnesses, Gonzalo Abaya and Eugenio Zalamea. The appellants impeach the credibility of Eugenio
Zalamea, for having made a sworn declaration before the justice of the peace of Santa Cruz, Laguna,
before the trial of this case, to the effect that he was really one of the witnesses to the will in question,
which fact was corroborated by himself at the trial. The appellants take Zalamea’s testimony in
connection with the dismissal of a criminal case against a nephew of his, in whose success he was
interested, and infer from this fact the partiality of his testimony. We deem this allegation of little
importance to impeach the credibility of the witness Zalamea, especially because his testimony is
corroborated by the other attesting witness, Gonzalo Abaya, and by attorney Luis Abaya, who had
prepared the testament at the instance of the testatrix. The foregoing is sufficient for us to conclude that
the first assignment of error made by the appellant is groundless.

The appellants contend that the court below erred in admitting the will to probate notwithstanding the
omission of the proponent to produce one of the attesting witnesses.

At the trial of this case the attorneys for the proponent stated to the court that they had necessarily to omit
the testimony of Pedro de Jesus, one of the persons who appear to have witnessed the execution of the
will, for there were reasonable grounds to believe that said witness was openly hostile to the proponent,
inasmuch as since the announcement of the trial of the petition for the probate of the will, said witness
has been in frequent communication with the contestants and their attorney, and has refused to hold any
conference with the attorneys for the proponent. In reply to this, the attorney for the contestants, said to
the court, "without discussing for the present whether or not in view of those facts (the facts mentioned by
the attorneys for the petitioner), in the hypothesis that the same are proven, they are relieved from
producing that witness, for while it is a matter not decided, it is a recognized rule that the fact that a
witness is hostile does not justify a party to omit his testimony; without discussing this, I say, I move that
said statement be stricken out, and if the proponent wants these facts to stand in the record, let him prove
them." The court a quo ruled, saying, "there is no need."cralaw virtua1aw library

To this ruling of the court, the attorney for the appellants did not take any exception.

In the case of Avera v. Garcia and Rodriquez (42 Phil., 145), recently decided by this court, in deciding
the question whether a will can be admitted to probate, where opposition is made, upon the proof of a
single attesting witness, without producing or accounting for the absence of the other two, it was said;
while it is undoubtedly true that an uncontested will may be proved by the testimony of only one of the
three attesting witnesses, nevertheless in Cabang v. Delfinado (34 Phil., 291), this court declared after an
elaborate examination of the American and English authorities that when a contest is instituted, all of the
attesting witnesses must be examined, if alive and within reach of the process of the court.

"In the present case no explanation was made at the trial as to why all three of the attesting witnesses
were not produced, but the probable reason is found in the fact that, although the petition for the probate
of this will had been pending from December 21, 1917, until the date set for the hearing, which was April
5, 1919, no formal contest was entered until the very day set for the hearing; and it is probable that the
attorney for the proponent, believing in good faith that probate would not be contested, repaired to the
court with only one of the three attesting witnesses at hand, and upon finding that the will was contested,
incautiously permitted the case to go to proof without asking for a postponement of the trial in order that
he might produce all the attesting witnesses.

"Although this circumstance may explain why the three witnesses were not produced, it does not in itself
supply any basis for changing the rule expounded in the case above referred to; and were it not for a fact
now to be mentioned, this court would probably be compelled to reverse this case on the ground that the
execution of the will had not been proved by a sufficient number of attesting witnesses.

"It appears, however, that this point was not raised by the appellant in the lower court either upon the
submission of the cause for determination in that court or upon the occasion of the filing of the motion for
a new trial. Accordingly it is insisted for the appellee that this question cannot now be raised for the first
time in this court. We believe this point is well taken, and the first assignment of error must be declared
not to be well taken. This exact question has been decided by the Supreme Court of California adversely
to the contention of the appellant, and we see no reason why the same rule of practice should not be
observed by us.

(Estate of McCarty, 58 Cal., 335, 337.)

"There are at least two reasons why the appellate tribunal are disinclined to permit certain questions to be
raised for the first time in the second instance. In the first place it eliminates the judicial criterion of the
Court of First Instance upon the point there presented and makes the appellate court in effect a court of
first instance with reference to that point, unless the case is remanded for a new trial. In the second place,
it permits, if it does not encourage, attorneys to trifle with the administration of justice by concealing from
the trial court and from their opponent the actual point upon which reliance is placed, while they are
engaged in other discussions more simulated than real. These considerations are, we think, decisive.

"In ruling upon the point above presented we do not wish to be understood as laying down any hard and
fast rule that would prove an embarrassment to this court in the administration of justice in the future. In
one way or another we are constantly here considering aspects of cases and applying doctrines which
have escaped that attention of all persons concerned in the litigation below; and this is necessary if this
court is to contribute the part due from it in the correct decision of the cases brought before it. What we
mean to declare is that when we believe that substantial justice has been done in the Court of First
Instance, and the point relied on for reversal in this court appears to be one which ought properly to have
been presented in that court, we will in the exercise of a sound discretion ignore such question upon
appeal; and this is the more proper when the question relates to a defect which might have been cured in
the Court of First Instance if attention had been called to it there. In the present case, if the appellant had
raised this question in the lower court, either at the hearing or upon a motion for a new trial, that court
would have had the power, and it would have been its duty, considering the tardy institution of the
contest, to have granted a new trial in order that all the witnesses to the will might be brought into court.
But in stead of thus calling the error to the attention of the court and his adversary, the point is first raised
by the appellant in this court. We hold that this is too late.

"Properly understood, the case of Cabang v. Delfinado, supra, contains nothing inconsistent with the
ruling we now make, for it appears from the opinion in that case that the proponent of the will had
obtained an order for a republication and new trial for the avowed purpose of presenting the two
additional attesting witnesses who had not been previously examined, but nevertheless subsequently
failed without any apparent reason to take their testimony. Both parties in that case were therefore fully
apprised that the question of the number of witnesses necessary to prove the will was in issue in the
lower court."cralaw virtua1aw library

In the case at bar, we do not think this question properly to have been raised at the trial, but in the
memorandum submitted by the attorney for the appellants to the trial court, he contended that the will
could not be admitted to probate because one of the witnesses to the will was not produced, and that the
voluntary non-production of this witness raises a presumption against the pretension of the proponent.
The trial court found that the evidence introduced by the proponent,. consisting of the testimony of the two
attesting witnesses and the other witness who was present at the execution, and had charge of the
preparation of the will and the inventory, Exhibits A and A-1, was sufficient. As announced in Cabang v.
Delfinado, supra, the general rule is that, where opposition is made to the probate of a will, the attesting
witnesses must be produced. But there are exceptions to this rule, for instance, when a witness is dead,
or cannot be served with process of the court, or his reputation for truth has been questioned or he
appears hostile to the cause of the proponent. In such cases, the will may be admitted to probate without
the testimony of said witness, if, upon the other proofs adduced in the case, the court is satisfied that the
will has been duly executed. Wherefore, we find that the non-production of the attesting witness, Pedro
de Jesus, as accounted for by the attorney for the proponent at the trial, does not render void the decree
of the court a quo, allowing the probate.

But supposing that said witness, when cited, had testified adversely to the application, this would not by
itself have change the result reached by the court a quo, for section 632 of the Code of Civil Procedure
provides that a will can be admitted to probate, notwithstanding that one or more witnesses do not
remember having attested it, provided the court is satisfied upon the evidence adduced that the will has
been executed and signed in the manner prescribed by the law.

The last error assigned by the appellants is made to consist in the probate of the inventory, Exhibit A-1,
despite the fact that this exhibit has no attestation clause in it, and its paging is made in Arabic numerals
and not in letters.

In the third paragraph of the will, reference is made to the inventory, Exhibit A-1, and at the bottom of said
will, the testatrix Josefa Zalamea says:jgc:chanrobles.com.ph

"In witness whereof, I sign this will composed of ten folios including the page containing the signatures
and the attestation of the witnesses; I have likewise signed the inventory attached to this will composed of
ten folios in the presence of Messrs. Gonzalo Abaya, Eugenio Zalamea, Pedro de Jesus, in this
municipality of Pagsanjan, Laguna, Philippine Islands, this 19th of July, 1918."cralaw virtua1aw library

And the attestation clause is as follows:jgc:chanrobles.com.ph

"The foregoing will composed of ten folios including this one whereunto we have affixed our signatures,
as well as the inventory of the properties of Dona Josefa Zalamea y Abella, was read to Dona Josefa
Zalamea y Abella, and the latter affixed her name to name the last, and each and every page of this will
and inventory composed of ten folios in our presence; and she declared this to be her last will and
testament and at her request we have affixed hereunto our respective signatures in her presence and in
the presence of each other as witnesses to the will and the inventory this 19th of July, 1918, at
Pagsanjan, Laguna, P. I.

"GONZALO ABAYA,

"EUGENIO ZALAMEA,

"PEDRO DE JESUS."cralaw virtua1aw library

In view of the fact that the inventory is referred to in the will as an integral part of it, we find that the
foregoing attestation clause is in compliance with section 1 of Act No. 2645, which requires this solemnity
for the validity of a will, and makes unnecessary any other attestation clause at the end of the inventory.

As to the paging of the will in Arabic numerals, instead of in letters, we adhere to the doctrine announced
in the case of Aldaba v. Roque (p. 378, ante), recently decided by this court. In that case the validity of
the will was assailed on the ground that its folios were paged with the letters A, B, C, etc., instead of with
he letters "one," "two," "three," etc. It was held that this way of numbering the pages of a will is in
compliance with the spirit of the law, inasmuch as either one of these methods indicates the correlation of
the pages and serves to prevent the abstraction of any of them. In the course of the decision, we said: "It
might be said that the object of the law in requiring that the paging be made in letters is to make
falsification more difficult, but it should be noted that since all the pages of the testament are signed at the
margin by the testatrix and the witnesses, the difficulty of forging the signatures in either case remains the
same. In other words the more or less degree of facility to imitate the writing of the letters A, B, C, etc.,
does not make for the easiness to forge the signatures. And as in the present case there exists the
guaranty of the authenticity of the testament, consisting in the signatures on the left margins of the
testament and the paging thereof as declared in the attestation clause, the holding of this court in
Abangan v. Abangan (40 Phil., 476), might as well be repeated:jgc:chanrobles.com.ph

"‘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.’

"In that case the testament was written on one page, and the attestation clause on another. Neither one
of these pages was numbered in any way, and it was held: ’In a will consisting of two sheets the first of
which contains all the testamentary dispositions and is signed at the bottom by the testator and three
witnesses and the second contains only the attestation clause and is signed also at the bottom by the
three witnesses, it is not necessary that both sheets be further signed on their margins by the testator and
the witnesses, or be paged.’

"This means that, according to the particular case, the omission of paging does not necessarily render the
testament invalid.

"The law provides that the numbering of the pages should be in letters placed on the upper part of the
sheet, but if the paging should be placed in the lower part, would the testament be void for this sole
reason? We believe not. The law also provides that the testator and the witnesses must sign the left
margin of each of the sheets of the testament; but if they should sign on the right margin, would this fact
also annul the testament? Evidently not. This court has already held in Avera v. Garcia and Rodriguez (42
Phil., 145):

"‘It is true that the statute says that the testator and the instrumental witnesses shall sign their names on
the left margin of each and every page; and it is undeniable that the general doctrine is to the effect that
all statutory requirements as to the execution of wills must be fully complied with. The same doctrine is
also deducible from cases heretofore decided by this court.

"‘Still some details at times creep into legislative enactments which are so trivial that it would be absurd to
suppose that the Legislature could have attached any decisive importance to them. The provision to the
effect that the signatures of the testator and witnesses shall be written on the left margin of each page —
rather than on the right margin — seems to be of this character. So far as concerns the authentication of
the will, and of every part thereof, it can make no possible difference whether the names appear on the
left or on the right margin, provided they are on one or the other. In Caraig v. Tatlonghari (R. G. No.
12558, decided March 23, 1918, not reported), this court declared a will void which was totally lacking in
the signatures required to be written on its several pages; and in the case of Re Estate of Saguinsin (41
Phil., 875), a will was likewise declared void which contained the necessary signatures on the margin of
each leaf (folio), but not in the margin of each page containing written matter.’

"We do not desire to intimate that the numbering in letters is a requisite of no importance. But since its
principal object is to give the correlation of the pages, we hold that this object may be attained by writing
one, two, three, etc., as well as by writing A, B, C, etc."cralaw virtua1aw library

We see no reason why the same rule should not be applied where the paging is in Arabic numerals,
instead of in letters, as in the inventory in question. So that, adhering to the view taken by this court in the
case of Abangan v. Abangan, and followed in Aldaba v. Roque, with regard to the appreciation of the
solemnities of a will, we find that the judgment appealed from should be, as is hereby, affirmed with the
costs against the appellant. So ordered.

G.R. No. 76464 February 29, 1988

TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO CASIANO, CONSTANCIO
MALOTO, PURIFICACION MIRAFLOR, ROMAN CATHOLIC CHURCH OF MOLO, AND ASILO DE
MOLO, petitioners,
vs.
COURT OF APPEALS, PANFILO MALOTO AND FELINO MALOTO, respondents.

SARMIENTO, J.:
This is not the first time that the parties to this case come to us. In fact, two other cases directly related to
the present one and involving the same parties had already been decided by us in the past. In G.R. No.
L-30479, 1 which was a petition for certiorari and mandamus instituted by the petitioners herein, we
dismissed the petition ruling that the more appropriate remedy of the petitioners is a separate proceeding
for the probate of the will in question. Pursuant to the said ruling, the petitioners commenced in the then
Court of First Instance of Iloilo, Special Proceeding No. 2176, for the probate of the disputed will, which
was opposed by the private respondents presently, Panfilo and Felino both surnamed Maloto. The trial
court dismissed the petition on April 30, 1970. Complaining against the dismissal, again, the petitioners
came to this Court on a petition for review by certiorari. 2 Acting on the said petition, we set aside the trial
court's order and directed it to proceed to hear the case on the merits. The trial court, after hearing, found
the will to have already been revoked by the testatrix. Adriana Maloto, and thus, denied the petition. The
petitioners appealed the trial court's decision to the Intermediate Appellate Court which, on June 7, 1985,
affirmed the order. The petitioners' motion for reconsideration of the adverse decision proved to be of no
avail, hence, this petition.

For a better understanding of the controversy, a factual account would be a great help.

On October 20, 1963, Adriana Maloto died leaving as heirs her niece and nephews, the petitioners Aldina
Maloto-Casiano and Constancio, Maloto, and the private respondents Panfilo Maloto and Felino Maloto.
Believing that the deceased did not leave behind a last will and testament, these four heirs commenced
on November 4, 1963 an intestate proceeding for the settlement of their aunt's estate. The case was
instituted in the then Court of First Instance of Iloilo and was docketed as Special Proceeding No. 1736.
However, while the case was still in progress, or to be exact on February 1, 1964, the parties — Aldina,
Constancio, Panfilo, and Felino — executed an agreement of extrajudicial settlement of Adriana's estate.
The agreement provided for the division of the estate into four equal parts among the parties. The
Malotos then presented the extrajudicial settlement agreement to the trial court for approval which the
court did on March 21, 1964. That should have signalled the end of the controversy, but, unfortunately, it
had not.

Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former associate of Adriana's
counsel, the late Atty. Eliseo Hervas, discovered a document entitled "KATAPUSAN NGA
PAGBUBULAT-AN (Testamento)," dated January 3,1940, and purporting to be the last will and testament
of Adriana. Atty. Palma claimed to have found the testament, the original copy, while he was going
through some materials inside the cabinet drawer formerly used by Atty. Hervas. The document was
submitted to the office of the clerk of the Court of First Instance of Iloilo on April 1, 1967. Incidentally,
while Panfilo and Felino are still named as heirs in the said will, Aldina and Constancio are bequeathed
much bigger and more valuable shares in the estate of Adriana than what they received by virtue of the
agreement of extrajudicial settlement they had earlier signed. The will likewise gives devises and legacies
to other parties, among them being the petitioners Asilo de Molo, the Roman Catholic Church of Molo,
and Purificacion Miraflor.

Thus, on May 24, 1967, Aldina and Constancio, joined by the other devisees and legatees named in the
will, filed in Special Proceeding No. 1736 a motion for reconsideration and annulment of the proceedings
therein and for the allowance of the will When the trial court denied their motion, the petitioner came to us
by way of a petition for certiorari and mandamus assailing the orders of the trial court . 3 As we stated
earlier, we dismissed that petition and advised that a separate proceeding for the probate of the alleged
will would be the appropriate vehicle to thresh out the matters raised by the petitioners.

Significantly, the appellate court while finding as inconclusive the matter on whether or not the document
or papers allegedly burned by the househelp of Adriana, Guadalupe Maloto Vda. de Coral, upon
instructions of the testatrix, was indeed the will, contradicted itself and found that the will had been
revoked. The respondent court stated that the presence of animus revocandi in the destruction of the will
had, nevertheless, been sufficiently proven. The appellate court based its finding on the facts that the
document was not in the two safes in Adriana's residence, by the testatrix going to the residence of Atty.
Hervas to retrieve a copy of the will left in the latter's possession, and, her seeking the services of Atty.
Palma in order to have a new will drawn up. For reasons shortly to be explained, we do not view such
facts, even considered collectively, as sufficient bases for the conclusion that Adriana Maloto's will had
been effectively revoked.

There is no doubt as to the testamentary capacity of the testatrix and the due execution of the will. The
heart of the case lies on the issue as to whether or not the will was revoked by Adriana.

The provisions of the new Civil Code pertinent to the issue can be found in Article 830.

Art. 830. No will shall be revoked except in the following cases:

(1) By implication of law; or

(2) By some will, codicil, or other writing executed as provided in case of wills: or

(3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking it,
by the testator himself, or by some other person in his presence, and by his express
direction. If burned, torn cancelled, or obliterated by some other person, without the
express direction of the testator, the will may still be established, and the estate
distributed in accordance therewith, if its contents, and due execution, and the fact of its
unauthorized destruction, cancellation, or obliteration are established according to the
Rules of Court. (Emphasis Supplied.)

It is clear that the physical act of destruction of a will, like burning in this case, does not per se constitute
an effective revocation, unless the destruction is coupled with animus revocandi on the part of the
testator. It is not imperative that the physical destruction be done by the testator himself. It may be
performed by another person but under the express direction and in the presence of the testator. Of
course, it goes without saying that the document destroyed must be the will itself.

In this case, while animus revocandi or the intention to revoke, may be conceded, for that is a state of
mind, yet that requisite alone would not suffice. "Animus revocandi is only one of the necessary elements
for the effective revocation of a last will and testament. The intention to revoke must be accompanied by
the overt physical act of burning, tearing, obliterating, or cancelling the will carried out by the testator or
by another person in his presence and under his express direction. There is paucity of evidence to show
compliance with these requirements. For one, the document or papers burned by Adriana's maid,
Guadalupe, was not satisfactorily established to be a will at all, much less the will of Adriana Maloto. For
another, the burning was not proven to have been done under the express direction of Adriana. And then,
the burning was not in her presence. Both witnesses, Guadalupe and Eladio, were one in stating that they
were the only ones present at the place where the stove (presumably in the kitchen) was located in which
the papers proffered as a will were burned.

The respondent appellate court in assessing the evidence presented by the private respondents as
oppositors in the trial court, concluded that the testimony of the two witnesses who testified in favor of the
will's revocation appear "inconclusive." We share the same view. Nowhere in the records before us does
it appear that the two witnesses, Guadalupe Vda. de Corral and Eladio Itchon, both illiterates, were
unequivocably positive that the document burned was indeed Adriana's will. Guadalupe, we think,
believed that the papers she destroyed was the will only because, according to her, Adriana told her so.
Eladio, on the other hand, obtained his information that the burned document was the will because
Guadalupe told him so, thus, his testimony on this point is double hearsay.

At this juncture, we reiterate that "(it) is an important matter of public interest that a purported win is not
denied legalization on dubious grounds. Otherwise, the very institution of testamentary succession will be
shaken to its very foundations ...."4

The private respondents in their bid for the dismissal of the present action for probate instituted by the
petitioners argue that the same is already barred by res adjudicata. They claim that this bar was brought
about by the petitioners' failure to appeal timely from the order dated November 16, 1968 of the trial court
in the intestate proceeding (Special Proceeding No. 1736) denying their (petitioners') motion to reopen
the case, and their prayer to annul the previous proceedings therein and to allow the last will and
testament of the late Adriana Maloto. This is untenable.

The doctrine of res adjudicata finds no application in the present controversy. For a judgment to be a bar
to a subsequent case, the following requisites must concur: (1) the presence of a final former judgment;
(2) the former judgment was rendered by a court having jurisdiction over the subject matter and the
parties; (3) the former judgment is a judgment on the merits; and (4) there is, between the first and the
second action, Identity of parties, of subject matter, and of cause of action. 5 We do not find here the
presence of all the enumerated requisites.

For one, there is yet, strictly speaking, no final judgment rendered insofar as the probate of Adriana
Maloto's will is concerned. The decision of the trial court in Special Proceeding No. 1736, although final,
involved only the intestate settlement of the estate of Adriana. As such, that judgment could not in any
manner be construed to be final with respect to the probate of the subsequently discovered will of the
decedent. Neither is it a judgment on the merits of the action for probate. This is understandably so
because the trial court, in the intestate proceeding, was without jurisdiction to rule on the probate of the
contested will . 6 After all, an action for probate, as it implies, is founded on the presence of a will and with
the objective of proving its due execution and validity, something which can not be properly done in an
intestate settlement of estate proceeding which is predicated on the assumption that the decedent left no
will. Thus, there is likewise no Identity between the cause of action in intestate proceeding and that in an
action for probate. Be that as it may, it would be remembered that it was precisely because of our ruling in
G.R. No. L-30479 that the petitioners instituted this separate action for the probate of the late Adriana
Maloto's will. Hence, on these grounds alone, the position of the private respondents on this score can
not be sustained.

One last note. The private respondents point out that revocation could be inferred from the fact that "(a)
major and substantial bulk of the properties mentioned in the will had been disposed of: while an
insignificant portion of the properties remained at the time of death (of the testatrix); and, furthermore,
more valuable properties have been acquired after the execution of the will on January 3,1940." 7 Suffice
it to state here that as these additional matters raised by the private respondents are extraneous to this
special proceeding, they could only be appropriately taken up after the will has been duly probated and a
certificate of its allowance issued.

WHEREFORE, judgment is hereby rendered REVERSING and SETTING ASIDE the Decision dated June
7, 1985 and the Resolution dated October 22, 1986, of the respondent Court of Appeals, and a new one
ENTERED for the allowance of Adriana Maloto's last will and testament. Costs against the private
respondents.

This Decision is IMMEDIATELY EXECUTORY.

SO ORDERED.

Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA. DE
MOLO, petitioner-appellee,
vs.
LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants.

Claro M. Recto and Serafin C. Dizon for appellants.

Delgado & Flores for appellee.

BAUTISTA ANGELO, J.:

This is an appeal from an order of the Court of First Instance of Rizal admitting to probate the last will and
testament of the deceased Mariano Molo y Legaspi executed on August 17, 1918. The oppositors-
appellants brought the case on appeal to this Court for the reason that the value of the properties
involved exceeds P50,000.

Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay, province of Rizal, without
leaving any forced heir either in the descending or ascending line. He was survived, however, by his wife,
the herein petitioner Juana Juan Vda. de Molo, and by his nieces and nephew, the oppositors-appellants,
Luz Gliceria and Cornelio, all surnamed Molo, who were the legitimate children of Candido Molo y
Legaspi, deceased brother of the testator. Mariano Molo y Legaspi left two wills, one executed on August
17, 1918, (Exhibit A) and another executed on June 20, 1939. (Exhibit I). The later will executed in 1918.

On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court of First Instance of Rizal a petition,
which was docketed as special proceeding No. 8022 seeking the probate of the will executed by the
deceased on June 20, 1939. There being no opposition, the will was probated. However, upon petition
filed by the herein oppositors, the order of the court admitting the will to probate was set aside and the
case was reopened. After hearing, at which both parties presented their evidence, the court rendered
decision denying the probate of said will on the ground that the petitioner failed to prove that the same
was executed in accordance with law.

In view of the disallowance of the will executed on June 20, 1939, the widow on February 24, 1944, filed
another petition for the probate of the will executed by the deceased on August 17, 1918, which was
docketed as special proceeding No. 56, in the same court. Again, the same oppositors filed an opposition
to the petition based on three grounds: (1) that petitioner is now estopped from seeking the probate of the
will of 1918; (2) that said will has not been executed in the manner required by law and (3) that the will
has been subsequently revoked. But before the second petition could be heard, the battle for liberation
came and the records of the case were destroyed. Consequently, a petition for reconstitution was filed,
but the same was found to be impossible because neither petitioner nor oppositors could produce the
copies required for its reconstitution. As a result, petitioner filed a new petition on September 14, 1946,
similar to the one destroyed, to which the oppositors filed an opposition based on the same grounds as
those contained in their former opposition. Then, the case was set for trial, and on May 28, 1948, the
court issued an order admitting the will to probate already stated in the early part of this decision. From
this order the oppositors appealed assigning six errors, to wit.

I. The probate court erred in not holding that the present petitioner voluntarily and deliberately
frustrated the probate of the will dated June 20, 1939, in special proceeding No. 8022, in order to
enable her to obtain the probate of another alleged will of Molo dated 191.

II. The court a quo erred in not holding that the petitioner is now estopped from seeking the
probate of Molo's alleged will of 1918.

III. The lower court erred in not holding that petitioner herein has come to court with "unclean
hands" and as such is not entitled to relief.

IV. The probate court erred in not holding that Molo's alleged will of August 17, 1918 was not
executed in the manner required by law.

V. The probate court erred in not holding that the alleged will of 1918 was deliberately revoked by
Molo himself.

VI. The lower court erred in not holding that Molo's will of 1918 was subsequently revoked by the
decedent's will of 1939.

In their first assignment of error, counsel for oppositors contend that the probate court erred in not holding
that the petitioner voluntarily and deliberately frustrated the probate of the will dated June 20, 1939, in
order to enable her to obtain the probate of the will executed by the deceased on August 17, 1918,
pointing out certain facts and circumstances with their opinion indicate that petitioner connived with the
witness Canuto Perez in an effort to defeat and frustrate the probate of the 1939 will because of her
knowledge that said will intrinsically defective in that "the one and only testamentory disposition thereof
was a "disposicion captatoria". These circumstances, counsel for the appellants contend, constitute a
series of steps deliberately taken by petitioner with a view to insuring the realization of her plan of
securing the probate of the 1918 will which she believed would better safeguard her right to inherit from
the decease.

These imputations of fraud and bad faith allegedly committed in connection with special proceedings No.
8022, now closed and terminated, are vigorously met by counsel for petitioner who contends that to raise
them in these proceedings which are entirely new and distinct and completely independent from the other
is improper and unfair as they find no support whatsoever in any evidence submitted by the parties in this
case. They are merely based on the presumptions and conjectures not supported by any proof. For this
reason, counsel, contends, the lower court was justified in disregarding them and in passing them sub
silentio in its decision.

A careful examination of the evidence available in this case seems to justify this contention. There is
indeed no evidence which may justify the insinuation that petitioner had deliberately intended to frustrate
the probate of the 1939 will of the deceased to enable her to seek the probate of another will other than a
mere conjecture drawn from the apparently unexpected testimony of Canuto Perez that he went out of the
room to answer an urgent call of nature when Artemio Reyes was signing the will and the failure of
petitioner later to impeach the character of said witness in spite of the opportunity given her by the court
to do so. Apart from this insufficiency of evidence, the record discloses that this failure has been
explained by petitioner when she informed the court that she was unable to impeach the character of her
witness Canuto Perez because of her inability to find witnesses who may impeach him, and this
explanation stands uncontradicted. Whether this explanation is satisfactory or not, it is not now, for us to
determine. It is an incident that comes within the province of the former case. The failure of petitioner to
present the testimony of Artemio Reyes at the hearing has also been explained, and it appears that
petitioner has filed because his whereabouts could not be found. Whether this is true or not is also for this
Court to determine. It is likewise within the province and function of the court in the former case. And the
unfairness of this imputation becomes more glaring when we stock of the developments that had taken
place in these proceedings which show in bold relief the true nature of the conduct, behavior and
character of the petitioner so bitterly assailed and held in disrepute by the oppositors.

It should be recalled that the first petition for the probate of the will executed on June 20, 1939, was filed
on February 7, 1941, by the petitioner. There being no opposition, the will was probated. Subsequently,
however, upon petition of the herein oppositors, the order of the court admitting said will to probate was
set aside, over the vigorous opposition of the herein petitioner, and the case was reopened. The
reopening was ordered because of the strong opposition of the oppositors who contended that he will had
not been executed as required by law. After the evidence of both parties had been presented, the
oppositors filed an extensive memorandum wherein they reiterated their view that the will should be
denied probate. And on the strenght of this opposition, the court disallowed the will.

If petitioner then knew that the 1939 will was inherently defective and would make the testamentary
disposition in her favor invalid and ineffective, because it is a "disposicion captatoria", which knowledge
she may easily acquire through consultation with a lawyer, there was no need her to go through the order
of filing the petition for the probate of the will. She could accomplish her desire by merely suppressing the
will or tearing or destroying it, and then take steps leading to the probate of the will executed in 1918. But
for her conscience was clear and bade her to take the only proper step possible under the circumstances,
which is to institute the necessary proceedings for the probate of the 1939 will. This she did and the will
was admitted to probate. But then the unexpected happened. Over her vigorous opposition, the herein
appellants filed a petition for reopening, and over her vigorous objection, the same was granted and the
case was reopened. Her motion for reconsideration was denied. Is it her fault that the case was
reopened? Is it her fault that the order admitting the will to probate was set aside? That was a
contingency which petitioner never expected. Had appellants not filed their opposition to the probate of
the will and had they limited their objection to the intrinsic validity of said will, their plan to defeat the will
and secure the intestacy of the deceased would have perhaps been accomplished. But they failed in their
strategy. If said will was denied probate it is due to their own effort. It is now unfair to impute bad faith
petitioner simply because she exerted every effort to protect her own interest and prevent the intestacy of
the deceased to happen.

Having reached the foregoing conclusions, it is obvious that the court did not commit the second and third
errors imputed to it by the counsel for appellants. Indeed, petitioner cannot be considered guilty or
estoppel which would prevent her from seeking the probate of the 1918 will simply because of her effort
to obtain the allowance of the 1939 will has failed considering that in both the 1918 and 1939 wills she
was in by her husband as his universal heir. Nor can she be charged with bad faith far having done so
because of her desire to prevent the intestacy of her husband. She cannot be blamed being zealous in
protecting her interest.

The next contention of appellants refers to the revocatory clause contained in 1939 will of the deceased
which was denied probate. They contend that, notwithstanding the disallowance of said will, the
revocatory clause is valid and still has the effect of nullifying the prior of 1918.

Counsel for petitioner meets this argument by invoking the doctrine laid down in the case of Samson vs.
Naval, (41 Phil., 838). He contends that the facts involved in that case are on all fours with the facts of
this case. Hence, the doctrine is that case is here controlling.

There is merit in this contention. We have carefully read the facts involved in the Samson case we are
indeed impressed by their striking similarity with the facts of this case. We do not need to recite here what
those facts are; it is enough to point out that they contain many points and circumstances in common. No
reason, therefore, is seen by the doctrine laid down in that case (which we quote hereunder) should not
apply and control the present case.

A subsequent will, containing a clause revoking a previous will, having been disallowed, for the
reason that it was not executed in conformity with the provisions of section 618 of the Code of
Civil Procedure as to the making of wills, cannot produce the effect of annulling the previous will,
inasmuch as said revocatory clause is void. (41 Phil., 838.)

Apropos of this question, counsel for oppositors make the remark that, while they do not disagree with the
soundness of the ruling laid down in the Samson case, there is reason to abandon said ruling because it
is archaic or antiquated and runs counter to the modern trend prevailing in American jurisprudence. They
maintain that said ruling is no longer controlling but merely represents the point of view of the minority
and should, therefore, be abandoned, more so if we consider the fact that section 623 of our Code of Civil
Procedure, which governs the revocation of wills, is of American origin and as such should follow the
prevailing trend of the majority view in the United States. A long line of authorities is cited in support of
this contention. And these authorities hold the view, that "an express revocation is immediately effective
upon the execution of the subsequent will, and does not require that it first undergo the formality of a
probate proceeding". (p. 63, appellants' brief .

While they are many cases which uphold the view entertained by counsel for oppositors, and that view
appears to be in controlling the states where the decisions had been promulgated, however, we are
reluctant to fall in line with the assertion that is now the prevailing view in the United States. In the search
we have made of American authorities on the subject, we found ourselves in a pool of conflicting opinions
perhaps because of the peculiar provisions contained in the statutes adopted by each State in the subject
of revocation of wills. But the impression we gathered from a review and the study of the pertinent
authorities is that the doctrine laid down in the Samson case is still a good law. On page 328 of the
American Jurisprudence Vol. 57, which is a revision Published in 1948, we found the following passages
which in our opinion truly reflect the present trend of American jurisprudence on this matter affecting the
revocation of wills:
 SEC. 471. Observance of Formalities in Execution of Instrument. — Ordinarily, statutes which
permit the revocation of a will by another writing provide that to be effective as a revocation, the
writing must be executed with the same formalities which are required to be observed in the
execution of a will. Accordingly, where, under the statutes, attestation is necessary to the making
of a valid will, an unattested non testamentary writing is not effective to revoke a prior will. It has
been held that a writing fails as a revoking instrument where it is not executed with the formalities
requisite for the execution of a will, even though it is inscribed on the will itself, although it may
effect a revocation by cancellation or obliteration of the words of the will. A testator cannot
reserve to himself the power to modify a will by a written instrument subsequently prepared but
not executed in the manner required for a will.

SEC, 472. Subsequent Unexecuted, Invalid, or Ineffective Will or Codicil. — A will which is invalid
because of the incapacity of the testator, or of undue influence can have no effect whatever as a
revoking will. Moreover, a will is not revoked by the unexecuted draft of a later one. Nor is a will
revoked by a defectively executed will or codicil, even though the latter contains a clause
expressly revoking the former will, in a jurisdiction where it is provided by a controlling statute that
no writing other than a testamentary instrument is sufficient to revoke a will, for the simple reason
that there is no revoking will. Similarly where the statute provides that a will may be revoked by a
subsequent will or other writing executed with the same formalities as are required in the
execution of wills, a defectively executed will does not revoke a prior will, since it cannot be said
that there is a writing which complies with the statute. Moreover, a will or codicil which, on
account of the manner in which it is executed, is sufficient to pass only personally does not affect
dispositions of real estate made by a former will, even though it may expressly purport to do so.
The intent of the testator to revoke is immaterial, if he has not complied with the statute. (57 Am.
Jur., 328, 329.)

We find the same opinion in the American Law Reports, Annotated, edited in 1939. On page 1400,
Volume 123, there appear many authorities on the "application of rules where second will is invalid",
among which a typical one is the following:

It is universally agreed that where the second will is invalid on account of not being executed in
accordance with the provisions of the statute, or where the testator who has not sufficient mental
capacity to make a will or the will is procured through undue influence, or the such, in other
words, where the second will is really no will, it does not revoke the first will or affect it in any
manner. Mort vs. Baker University (193-5) 229 Mo. App., 632, 78 S.W. (2d), 498.

These treaties cannot be mistaken. They uphold the view on which the ruling in the Samson case is
predicated. They reflect the opinion that this ruling is sound and good and for this reason, we see no
justification for abondoning it as now suggested by counsel for the oppositors.

It is true that our law on the matter (sec. 623, Code Civil Procedure) provides that a will may be some will,
codicil, or other writing executed as proved in case of wills" but it cannot be said that the 1939 will should
be regarded, not as a will within the meaning of said word, but as "other writing executed as provided in
the case of wills", simply because it was denied probate. And even if it be regarded as any other
writing within the meaning of said clause, there is authority for holding that unless said writing is admitted
to probate, it cannot have the effect of revocation. (See 57 Am. Jur. pp. 329-330).

But counsel for oppositors contemned that, regardless of said revocatory clause, said will of 1918 cannot
still be given effect because of the presumption that it was deliberately revoked by the testator himself.
The oppositors contend that the testator, after executing the 1939 will, and with full knowledge of the
recovatory clause contained said will, himself deliberately destroyed the original of the 1918 will, and for
that reason the will submitted by petitioner for probate in these proceedings is only a duplicate of said
original.

There is no evidence which may directly indicate that the testator deliberately destroyed the original of the
1918 will because of his knowledge of the revocatory clause contained in the will he executed in 1939.
The only evidence we have is that when the first will was executed in 1918, Juan Salcedo, who prepared
it, gave the original and copies to the testator himself and apparently they remained in his possession
until he executed his second will in 1939. And when the 1939 will was denied probate on November 29,
1943, and petitioner was asked by her attorney to look for another will, she found the duplicate copy
(Exhibit A) among the papers or files of the testator. She did not find the original.

If it can be inferred that the testator deliberately destroyed the 1918 will because of his knowledge of the
revocatory clause of the 1939 will, and it is true that he gave a duplicate copy thereof to his wife, the
herein petitioner, the most logical step for the testator to take is to recall said duplicate copy in order that
it may likewise be destroyed. But this was not done as shown by the fact that said duplicate copy
remained in the possession of petitioner. It is possible that because of the long lapse of twenty-one (21)
years since the first will was executed, the original of the will had been misplaced or lost, and forgetting
that there was a copy, the testator deemed it wise to execute another will containing exactly the same
testamentary dispositions. Whatever may be the conclusion we may draw from this chain of
circumstances, the stubborn fact is that there is no direct evidence of voluntary or deliberate destruction
of the first will by the testator. This matter cannot be inference or conjectur.

Granting for the sake of argument that the earlier will was voluntarily destroyed by the testator after the
execution of the second will, which revoked the first, could there be any doubt, under this theory, that said
earlier will was destroyed by the testator in the honest belief that it was no longer necessary because he
had expressly revoked it in his will of 1939? In other words, can we not say that the destruction of the
earlier will was but the necessary consequence of the testator's belief that the revocatory clause
contained in the subsequent will was valid and the latter would be given effect? If such is the case, then it
is our opinion that the earlier will can still be admitted to probate under the principle of "dependent relative
revocation".

This doctrine is known as that of dependent relative revocation, and is usually applied where the
testator cancels or destroys a will or executes an instrument intended to revoke a will with a
present intention to make a new testamentary disposition as a substitute for the old, and the new
disposition is not made or, if made, fails of effect for same reason. The doctrine is n limited to the
existence of some other document, however, and has been applied where a will was destroyed
as a consequence of a mistake of law. . . . (68 C.J.P. 799).

The rule is established that where the act of destruction is connected with the making of another
will so as fairly to raise the inference that the testator meant the revocation of the old to depend
upon the efficacy of a new disposition intended to be substituted, the revocation will be
conditional and dependent upon the efficacy of the new disposition; and if, for any reason, the
new will intended to be made as a substitute is inoperative, the revocation fails and the original
will remains in full force. (Gardner, pp. 232, 233.)

This is the doctrine of dependent relative revocation. The failure of a new testamentary
disposition upon whose validity the revocation depends, is equivalent to the non-fulfillment of a
suspensive conditions, and hence prevents the revocation of the original will. But a mere intent to
make at some time a will in the place of that destroyed will not render the destruction conditional.
It must appear that the revocation is dependent upon the valid execution of a new will. (1
Alexander, p. 751; Gardner, p. 253.)

We hold therefore, that even in the supposition that the destruction of the original will by the testator could
be presumed from the failure of the petitioner to produce it in court, such destruction cannot have the
effect of defeating the prior will of 1918 because of the fact that it is founded on the mistaken belief that
the will of 1939 has been validly executed and would be given due effect. The theory on which this
principle is predicated is that the testator did not intend to die intestate. And this intention is clearly
manifest when he executed two wills on two different occasion and instituted his wife as his universal heir.
There can therefore be no mistake as to his intention of dying testate.
The remaining question to be determined refers to the sufficiency of the evidence to prove the due
execution of the will.

The will in question was attested, as required by law, by three witnesses, Lorenzo Morales, Rufino
Enriquez, and Angel Cuenca. The first two witnesses died before the commencement of the present
proceedings. So the only instrumental witness available was Angel Cuenca and under our law and
precedents, his testimony is sufficient to prove the due execution of the will. However, petitioner
presented not only the testimony of Cuenca but placed on the witness stand Juan Salcedo, the notary
public who prepared and notarized the will upon the express desire and instruction of the testator, The
testimony of these witnesses shows that the will had been executed in the manner required by law. We
have read their testimony and we were impressed by their readiness and sincerity. We are convinced that
they told the truth.

Wherefore, the order appealed from is hereby affirmed, with costs against the appellants.1âwphïl.nêt

G.R. No. 110427 February 24, 1997

The Incompetent, CARMEN CAÑIZA, represented by her legal guardian, AMPARO

EVANGELISTA, petitioner,
vs.
COURT OF APPEALS (SPECIAL FIRST DIVISION), PEDRO ESTRADA and his wife, LEONORA
ESTRADA, respondents.

NARVASA, C.J.:

On November 20, 1989, being then ninety-four (94) years of age, Carmen Cañiza, a spinster, a retired
pharmacist, and former professor of the College of Chemistry and Pharmacy of the University of the
Philippines, was declared incompetent by judgment1 of the Regional Trial Court of Quezon City, Branch
107,2 in a guardianship proceeding instituted by her niece, Amparo A. Evangelista. 3 She was so adjudged
because of her advanced age and physical infirmities which included cataracts in both eyes and
senile dementia. Amparo A. Evangelista was appointed legal guardian of her person and estate.

Cañiza was the owner of a house and lot at No. 61 Tobias St., Quezon City. On September 17, 1990, her
guardian Amparo Evangelista commenced a suit in the Metropolitan Trial Court (MetroTC) of Quezon City
(Branch 35) to eject the spouses Pedro and Leonora Estrada from said premises. 4 The complaint was
later amended to identify the incompetent Cañiza as plaintiff, suing through her legal guardian, Amparo
Evangelista.

The amended Complaint5 pertinently alleged that plaintiff Cañiza was the absolute owner of the property
in question, covered by TCT No. 27147; that out of kindness, she had allowed the Estrada Spouses, their
children, grandchildren and sons-in-law to temporarily reside in her house, rent-free; that Cañiza already
had urgent need of the house on account of her advanced age and failing health, "so funds could be
raised to meet her expenses for support, maintenance and medical treatment;" that through her guardian,
Cañiza had asked the Estradas verbally and in writing to vacate the house but they had refused to do so;
and that "by the defendants' act of unlawfully depriving plaintiff of the possession of the house in question,
they . . (were) enriching themselves at the expense of the incompetent, because, while they . . (were)
saving money by not paying any rent for the house, the incompetent . . (was) losing much money as her
house could not be rented by others." Also alleged was that the complaint was "filed within one (1) year
from the date of of first letter of demand dated February 3, 1990."
In their Answer with Counterclaim, the defendants declared that they had been living in Cañiza's house
since the 1960's; that in consideration of their faithful service they had been considered by Cañiza as her
own family, and the latter had in fact executed a holographic will on September 4, 1988 by which she
"bequeathed" to the Estradas the house and lot in question.

Judgment was rendered by the MetroTC on April 13, 1992 in Cañiza's favor, 6 the Estradas being ordered
to vacate the premises and pay Cañiza P5,000.00 by way of attorney's fees.

But on appeal,8 the decision was reversed by the Quezon City Regional Trial Court, Branch 96.9 By
judgment rendered on October 21, 1992, 10 the RTC held that the "action by which the issue of
defendants' possession should be resolved is accion publiciana, the obtaining factual and legal situation .
. demanding adjudication by such plenary action for recovery of possession cognizable in the first
instance by the Regional Trial Court."

Cañiza sought to have the Court of Appeals reverse the decision of October 21, 1992, but failed in that
attempt. In a decision 11 promulgated on June 2, 1993, the Appellate Court 12 affirmed the RTC's
judgment in toto. It ruled that (a) the proper remedy for Cañiza was indeed an accion publiciana in the
RTC, not an accion interdictal in the MetroTC, since the "defendants have not been in the subject
premises as mere tenants or occupants by tolerance, they have been there as a sort of adopted family of
Carmen Cañiza," as evidenced by what purports to be the holographic will of the plaintiff; and (b) while
"said will, unless and until it has passed probate by the proper court, could not be the basis of defendants'
claim to the property, . . it is indicative of intent and desire on the part of Carmen Cañiza that defendants
are to remain and are to continue in their occupancy and possession, so much so that Cañiza's
supervening incompetency can not be said to have vested in her guardian the right or authority to drive
the defendants out." 13

Through her guardian, Cañiza came to this Court praying for reversal of the Appellate Court's judgment.
She contends in the main that the latter erred in (a) holding that she should have pursued an accion
publiciana, and not an accion interdictal; and in (b) giving much weight to "a xerox copy of an alleged
holographic will, which is irrelevant to this case." 14

In the responsive pleading filed by them on this Court's requirement, 15 the Estradas insist that the case
against them was really not one of unlawful detainer; they argue that since possession of the house had
not been obtained by them by any "contract, express or implied," as contemplated by Section 1, Rule 70
of the Rules of Court, their occupancy of the premises could not be deemed one "terminable upon mere
demand (and hence never became unlawful) within the context of the law." Neither could the suit against
them be deemed one of forcible entry, they add, because they had been occupying the property with the
prior consent of the "real owner," Carmen Cañiza, which "occupancy can even ripen into full ownership
once the holographic will of petitioner Carmen Cañiza is admitted to probate." They conclude, on those
postulates, that it is beyond the power of Cañiza's legal guardian to oust them from the disputed
premises.

Carmen Cañiza died on March 19, 1994, 16 and her heirs — the aforementioned guardian, Amparo
Evangelista, and Ramon C. Nevado, her niece and nephew, respectively — were by this Court's leave,
substituted for her. 17

Three issues have to be resolved: (a) whether or not an ejectment action is the appropriate judicial
remedy for recovery of possession of the property in dispute; (b) assuming desahucio to be proper,
whether or not Evangelista, as Cañiza's legal guardian had authority to bring said action; and (c)
assuming an affirmative answer to both questions, whether or not Evangelista may continue to represent
Cañiza after the latter's death.

I
It is axiomatic that what determines the nature of an action as well as which court has jurisdiction over it,
are the allegations of the complaint and the character of the relief sought. 18 An inquiry into the averments
of the amended complaint in the Court of origin is thus in order. 19

The amended Complaint alleges: 20

6. That the plaintiff Carmen Cañiza, is the sole and absolute owner of a house and lot at
No. 61 Scout Tobias, Quezon City, which property is now the subject of this complaint;

xxx xxx xxx

9. That the defendants, their children, grandchildren and sons-in-law, were allowed to live
temporarily in the house of plaintiff Carmen Cañiza, for free, out of her kindness;

10. That the plaintiff, through her legal guardian, has duly notified the defendants, for
them to vacate the said house, but the two (2) letters of demand were ignored and the
defendants refused to vacate the same. . .

11. That the plaintiff, represented by her legal guardian, Amparo Evangelista, made
another demand on the defendants for them to vacate the premises, before Barangay
Captain Angelina A. Diaz of Barangay Laging Handa, Quezon City, but after two (2)
conferences, the result was negative and no settlement was reached. A photocopy of the
Certification to File Action dated July 4, 1990, issued by said Barangay Captain is
attached, marked Annex "D" and made an integral part hereof;

12. That the plaintiff has given the defendants more than thirty (30) days to vacate the
house, but they still refused to vacate the premises, and they are up to this time residing
in the said place;

13. That this complaint is filed within one (1) year from the date of first letter of demand
dated February 3, 1990 (Annex "B") sent by the plaintiff to the defendants, by her legal
guardian — Amparo Evangelista;

14. By the defendants' act of unlawfully depriving the plaintiff of the possession of the
house in question, they are enriching themselves at the expense of the
incompetent plaintiff because, while they are saving money by not paying any rent for the
house, the plaintiff is losing much money as her house could not be rented by others;

15. That the plaintiff's health is failing and she needs the house urgently, so that funds
could be raised to meet her expenses for her support, maintenance and medical
treatment;

16. That because of defendants' refusal to vacate the house at No. 61 Scout Tobias,
Quezon City, the plaintiff, through her legal guardian, was compelled to go to court for
justice, and she has to spend P10,000.00 as attorney's fees.

Its prayer 21 is quoted below:

WHEREFORE, in the interest of justice and the rule of law, plaintiff, Carmen Cañiza,
represented by her legal guardian, Amparo Evangelista, respectfully prays to this
Honorable Court, to render judgment in favor of plaintiff and against the defendants as
follows:
 1. To order the defendants, their children, grandchildren, sons-in-law and other persons
claiming under them, to vacate the house and premises at No. 6 1 Scout Tobias, Quezon
City, so that its possession can be restored to the plaintiff Carmen Cañiza; and

2. To pay attorney's fees in the amount of P10,000.00;

3. To pay the costs of the suit.

In essence, the amended complaint states:

1) that the Estradas were occupying Cañiza's house by tolerance — having been
"allowed to live temporarily . . (therein) for free, out of . . (Cañiza's) kindness;"

2) that Cañiza needed the house "urgently" because her "health . . (was) failing and she .
. (needed) funds . . to meet her expenses for her support, maintenance and medical
treatment;"

3) that through her general guardian, Cañiza requested the Estradas several times, orally
and in writing, to give back possession of the house;

4) that the Estradas refused and continue to refuse to give back the house to Cañiza, to
her continuing prejudice; and

5) that the action was filed within one (1) year from the last demand to vacate.

Undoubtedly, a cause of action for desahucio has been adequately set out. It is settled that in an action
for unlawful detainer, it suffices to allege that the defendant is unlawfully withholding possession from the
plaintiff is deemed sufficient, 22 and a complaint for unlawful detainer is sufficient if it alleges that the
withholding of possession or the refusal to vacate is unlawful without necessarily employing the
terminology of the law. 23

The Estradas' first proffered defense derives from a literal construction of Section 1, Rule 70 of the Rules
of Court which inter alia authorizes the institution of an unlawful detainer suit when "the possession of any
land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by
virtue of any contract, express or implied." They contend that since they did not acquire possession of the
property in question "by virtue of any contract, express or implied" — they having been, to repeat,
"allowed to live temporarily . . (therein) for free, out of . . (Cañiza's) kindness" — in no sense could there
be an "expiration or termination of . . (their) right to hold possession, by virtue of any contract, express or
implied." Nor would an action for forcible entry lie against them, since there is no claim that they had
"deprived (Cañiza) of the possession of . . (her property) by force, intimidation, threat, strategy, or stealth.

The argument is arrant sophistry. Cañiza's act of allowing the Estradas to occupy her house, rent-free, did
not create a permanent and indefeasible right of possession in the latter's favor. Common sense, and the
most rudimentary sense of fairness clearly require that that act of liberality be implicitly, but no less
certainly, accompanied by the necessary burden on the Estradas of returning the house to Cañiza upon
her demand. More than once has this Court adjudged that a person who occupies the land of another at
the latter's tolerance or permission without any contract between them is necessarily bound by an implied
promise that he will vacate upon demand, failing which a summary action for ejectment is the proper
remedy against him. 24 The situation is not much different from that of a tenant whose lease expires but
who continues in occupancy by tolerance of the owner, in which case there is deemed to be an unlawful
deprivation or withholding of possession as of the date of the demand to vacate. 25 In other words, one
whose stay is merely tolerated becomes a deforciant illegally occupying the land or property the moment
he is required to leave. 26 Thus, in Asset Privatization Trust vs. Court of Appeals, 27 where a company,
having lawfully obtained possession of a plant upon its undertaking to buy the same, refused to return it
after failing to fulfill its promise of payment despite demands, this Court held that "(a)fter demand and its
repudiation, . . (its) continuing possession . . became illegal and the complaint for unlawful detainer filed
by the
. . (plant's owner) was its proper remedy.

It may not be amiss to point out in this connection that where there had been more than one demand to
vacate, the one-year period for filing the complaint for unlawful detainer must be reckoned from the date
of the last demand, 28 the reason being that the lessor has the option to waive his right of action based on
previous demands and let the lessee remain meanwhile in the premises. 29 Now, the complaint filed by
Cañiza's guardian alleges that the same was "filed within one (1) year from the date of the first letter of
demand dated February 3, 1990." Although this averment is not in accord with law because there is in
fact a second letter of demand to vacate, dated February 27, 1990, the mistake is inconsequential, since
the complaint was actually filed on September 17, 1990, well within one year from the second (last)
written demand to vacate.

The Estradas' possession of the house stemmed from the owner's express permission. That permission
was subsequently withdrawn by the owner, as was her right; and it is immaterial that the withdrawal was
made through her judicial guardian, the latter being indisputably clothed with authority to do so. Nor is it of
any consequence that Carmen Cañiza had executed a will bequeathing the disputed property to the
Estradas; that circumstance did not give them the right to stay in the premises after demand to vacate on
the theory that they might in future become owners thereof, that right of ownership being at best inchoate,
no transfer of ownership being possible unless and until the will is duly probated.

Thus, at the time of the institution of the action of desahucio, the Estradas had no legal right to the
property, whether as possessors by tolerance or sufferance, or as owners. They could not claim the right
of possession by sufferance; that had been legally ended. They could not assert any right of possession
flowing from their ownership of the house; their status as owners is dependent on the probate of the
holographic will by which the property had allegedly been bequeathed to them — an event which still has
to take place; in other words, prior to the probate of the will, any assertion of possession by them would
be premature and inefficacious.

In any case, the only issue that could legitimately be raised under the circumstances was that involving
the Estradas' possession by tolerance, i.e., possession de facto, not de jure. It is therefore incorrect to
postulate that the proper remedy for Cañiza is not ejectment but accion publiciana, a plenary action in the
RTC or an action that is one for recovery of the right to possession de jure.

II

The Estradas insist that the devise of the house to them by Cañiza clearly denotes her intention that they
remain in possession thereof, and legally incapacitated her judicial guardian, Amparo Evangelista, from
evicting them therefrom, since their ouster would be inconsistent with the ward's will.

A will is essentially ambulatory; at any time prior to the testator's death, it may be changed or
revoked; 30 and until admitted to probate, it has no effect whatever and no right can be claimed
thereunder, the law being quite explicit: "No will shall pass either real or personal property unless it is
proved and allowed in accordance with the Rules of Court" (ART. 838, id.). 31 An owner's intention to
confer title in the future to persons possessing property by his tolerance, is not inconsistent with the
former's taking back possession in the meantime for any reason deemed sufficient. And that in this case
there was sufficient cause for the owner's resumption of possession is apparent: she needed to generate
income from the house on account of the physical infirmities afflicting her, arising from her extreme age.

Amparo Evangelista was appointed by a competent court the general guardian of both the person and the
estate of her aunt, Carmen Cañiza. Her Letters of Guardianship 32 dated December 19, 1989 clearly
installed her as the "guardian over the person and properties of the incompetent CARMEN CANIZA
with full authority to take possession of the property of said incompetent in any province or provinces in
which it may be situated and to perform all other acts necessary for the management of her properties . .
" 33 By that appointment, it became Evangelista's duty to care for her aunt's person, to attend to her
physical and spiritual needs, to assure her well-being, with right to custody of her person in preference to
relatives and friends. 34 It also became her right and duty to get possession of, and exercise control over,
Cañiza's property, both real and personal, it being recognized principle that the ward has no right to
possession or control of his property during her incompetency. 35 That right to manage the ward's estate
carries with it the right to take possession thereof and recover it from anyone who retains it, 36 and bring
and defend such actions as may be needful for this purpose. 37

Actually, in bringing the action of desahucio, Evangelista was merely discharging the duty to attend to
"the comfortable and suitable maintenance of the ward" explicitly imposed on her by Section 4, Rule 96 of
the Rules of Court, viz.:

Sec. 4. Estate to be managed frugally, and proceeds applied to maintenance of ward. —

A guardian must manage the estate of his ward frugally and without waste, and apply the
income and profits thereof, so far as maybe necessary, to the comfortable and suitable
maintenance of the ward and his family, if there be any; and if such income and profits be
insufficient for that purpose, the guardian may sell or encumber the real estate, upon
being authorized by order to do so, and apply to such of the proceeds as may be
necessary to such maintenance.

Finally, it may be pointed out in relation to the Estradas's defenses in the ejectment action, that as the law
now stands, even when, in forcible entry and unlawful detainer cases, the defendant raises the question
of ownership in his pleadings and the question of possession cannot be resolved without deciding the
issue of ownership, the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial
Courts nevertheless have the undoubted competence to resolve "the issue of ownership . . only to
determine the issue of possession." 38

III

As already stated, Carmen Cañiza passed away during the pendency of this appeal. The Estradas
thereupon moved to dismiss the petition, arguing that Cañiza's death automatically terminated the
guardianship, Amaparo Evangelista lost all authority as her judicial guardian, and ceased to have legal
personality to represent her in the present appeal. The motion is without merit.

While it is indeed well-established rule that the relationship of guardian and ward is necessarily
terminated by the death of either the guardian or the ward, 39 the rule affords no advantage to the
Estradas. Amparo Evangelista, as niece of Carmen Cañiza, is one of the latter's only two (2) surviving
heirs, the other being Cañiza's nephew, Ramon C. Nevado. On their motion and by Resolution of this
Court 40 of June 20, 1994, they were in fact substituted as parties in the appeal at bar in place of the
deceased, in accordance with Section 17, Rule 3 of the Rules of Court, viz.: 41

Sec. 18. Death of a party. — After a party dies and the claim is not thereby extinguished,
the court shall order, upon proper notice, the legal representative of the deceased to
appear and be substituted for the deceased within a period of thirty (30) days, or within
such time as may be granted. If the legal representative fails to appear within said time,
the court may order the opposing party to procure the appointment of a legal
representative of the deceased within a time to be specified by the court, and the
representative shall immediately appear for and on behalf of the interest of the deceased.
The court charges involved in procuring such appointment, if defrayed by the opposing
party, may be recovered as costs. The heirs of the deceased may be allowed to be
substituted for the deceased, without requiring the appointment of an executor or
administrator and the court may appoint guardian ad litem for the minor heirs.

To be sure, an ejectment case survives the death of a party. Cañiza's demise did not extinguish
the desahucio suit instituted by her through her guardian. 42 That action, not being a purely personal one,
survived her death; her heirs have taken her place and now represent her interests in the appeal at bar.
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals promulgated on June 2,
1993 — affirming the Regional Trial Court's judgment and dismissing petitioner's petition for certiorari —
is REVERSED and SET ASIDE, and the Decision dated April 13, 1992 of the Metropolitan Trial Court of
Quezon City, Branch 35, in Civil Case No. 3410 is REINSTATED and AFFIRMED. Costs against private
respondents.

SO ORDERED.

G.R. No. L-23445 June 23, 1966

REMEDIOS NUGUID, petitioner and appellant,

vs.
FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and appellees.

Custodio O. Partade for petitioner and appellant.

Beltran, Beltran and Beltran for oppositors and appellees.

SANCHEZ, J.:

Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, without descendants,
legitimate or illegitimate. Surviving her were her legitimate parents, Felix Nuguid and Paz Salonga
Nuguid, and six (6) brothers and sisters, namely: Alfredo, Federico, Remedios, Conrado, Lourdes and
Alberto, all surnamed Nuguid.

On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of Rizal a holographic
will allegedly executed by Rosario Nuguid on November 17, 1951, some 11 years before her demise.
Petitioner prayed that said will be admitted to probate and that letters of administration with the will
annexed be issued to her.

On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate father and mother of
the deceased Rosario Nuguid, entered their opposition to the probate of her will. Ground therefor, inter
alia, is that by the institution of petitioner Remedios Nuguid as universal heir of the deceased, oppositors
— who are compulsory heirs of the deceased in the direct ascending line — were illegally preterited and
that in consequence the institution is void.

On August 29, 1963, before a hearing was had on the petition for probate and objection thereto,
oppositors moved to dismiss on the ground of absolute preterition.

On September 6, 1963, petitioner registered her opposition to the motion to dismiss.1äwphï1.ñët

The court's order of November 8, 1963, held that "the will in question is a complete nullity and will
perforce create intestacy of the estate of the deceased Rosario Nuguid" and dismissed the petition
without costs.

A motion to reconsider having been thwarted below, petitioner came to this Court on appeal.

1. Right at the outset, a procedural aspect has engaged our attention. The case is for the probate of a
will. The court's area of inquiry is limited — to an examination of, and resolution on, the extrinsic validity of
the will. The due execution thereof, the testatrix's testamentary capacity, and the compliance with the
requisites or solemnities by law prescribed, are the questions solely to be presented, and to be acted
upon, by the court. Said court at this stage of the proceedings — is not called upon to rule on
the intrinsic validity or efficacy of the provisions of the will, the legality of any devise or legacy therein. 1
A peculiar situation is here thrust upon us. The parties shunted aside the question of whether or not the
will should be allowed probate. For them, the meat of the case is the intrinsic validity of the will. Normally,
this comes only after the court has declared that the will has been duly authenticated.2 But petitioner and
oppositors, in the court below and here on appeal, travelled on the issue of law, to wit: Is the will
intrinsically a nullity?

We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On
the contrary, this litigation will be protracted. And for aught that appears in the record, in the event of
probate or if the court rejects the will, probability exists that the case will come up once again before us
on the same issue of the intrinsic validity or nullity of the will. Result: waste of time, effort, expense, plus
added anxiety. These are the practical considerations that induce us to a belief that we might as well
meet head-on the issue of the validity of the provisions of the will in question.3 After all, there exists a
justiciable controversy crying for solution.

2. Petitioner's sole assignment of error challenges the correctness of the conclusion below that the will is
a complete nullity. This exacts from us a study of the disputed will and the applicable statute.

Reproduced hereunder is the will:

Nov. 17, 1951

I, ROSARIO NUGUID, being of sound and disposing mind and memory, having amassed a certain
amount of property, do hereby give, devise, and bequeath all of the property which I may have when I die
to my beloved sister Remedios Nuguid, age 34, residing with me at 38-B Iriga, Q.C. In witness whereof, I
have signed my name this seventh day of November, nineteen hundred and fifty-one.

(Sgd.) Illegible

T/ ROSARIO NUGUID

The statute we are called upon to apply in Article 854 of the Civil Code which, in part, provides:

ART. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct
line, whether living at the time of the execution of the will or born after the death of the testator,
shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are
not inofficious. ...

Except for inconsequential variation in terms, the foregoing is a reproduction of Article 814 of the Civil
Code of Spain of 1889, which is similarly herein copied, thus —

Art. 814. The preterition of one or all of the forced heirs in the direct line, whether living at the time
of the execution of the will or born after the death of the testator, shall void the institution of heir;
but the legacies and betterments4 shall be valid, in so far as they are not inofficious. ...

A comprehensive understanding of the term preterition employed in the law becomes a necessity. On this
point Manresa comments:

La pretericion consiste en omitar al heredero en el testamento. O no se le nombra siquiera o aun

nombrandole como padre, hijo, etc., no se le instituya heredero ni se le deshereda expresamente
ni se le asigna parte alguna de los bienes, resultando privado de un modo tacito de su derecho a
legitima.

Para que exista pretericion, con arreglo al articulo 814, basta que en el testamento omita el
testador a uno cualquiera de aquellos a quienes por su muerte corresponda la herencia forzosa.
 Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que la omision sea
completa; que el heredero forzoso nada reciba en el testamento.

It may now appear trite bat nonetheless helpful in giving us a clear perspective of the problem before us,
to have on hand a clear-cut definition of the word annul:

To "annul" means to abrogate, to make void ... In re Morrow's Estate, 54 A. 342, 343, 204 Pa.
484.6

The word "annul" as used in statute requiring court to annul alimony provisions of divorce decree
upon wife's remarriage means to reduce to nothing; to annihilate; obliterate; blot out; to make void
or of no effect; to nullify; to abolish. N.J.S.A. 2:50 — 38 (now N.J.S. 2A:34-35). Madden vs.
Madden, 40 A. 2d 611, 614, 136 N..J Eq. 132.7

ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect; to nullify; to

abolish; to do away with. Ex parte Mitchell, 123 W. Va. 283, 14 S.E. 2d. 771, 774.8

And now, back to the facts and the law. The deceased Rosario Nuguid left no descendants, legitimate or
illegitimate. But she left forced heirs in the direct ascending line her parents, now oppositors Felix Nuguid
and Paz Salonga Nuguid. And, the will completely omits both of them: They thus received nothing by the
testament; tacitly, they were deprived of their legitime; neither were they expressly disinherited. This is a
clear case of preterition. Such preterition in the words of Manresa "anulara siempre la institucion de
heredero, dando caracter absoluto a este ordenamiento referring to the mandate of Article 814, now 854
of the Civil Code.9 The one-sentence will here institutes petitioner as the sole, universal heir — nothing
more. No specific legacies or bequests are therein provided for. It is in this posture that we say that the
nullity is complete. Perforce, Rosario Nuguid died intestate. Says Manresa:

En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir, en todo o en

parte? No se añade limitacion alguna, como en el articulo 851, en el que se expresa que se
anulara la institucion de heredero en cuanto prejudique a la legitima del deseheredado Debe,
pues, entenderse que la anulacion es completa o total, y que este articulo como especial en el
caso que le motiva rige con preferencia al 817. 10

The same view is expressed by Sanchez Roman: —

La consecuencia de la anulacion o nulidad de la institucion de heredero por pretericion de uno,

varios o todos los forzosos en linea recta, es la apertura de la sucesion intestada total o
parcial. Sera total, cuando el testador que comete la pretericion, hubiese dispuesto de todos los
bienes por titulo universal de herencia en favor de los herederos instituidos, cuya institucion se
anula, porque asi lo exige la generalidad del precepto legal del art. 814, al determinar, como
efecto de la pretericion, el de que "anulara la institucion de heredero." ... 11

Really, as we analyze the word annul employed in the statute, there is no escaping the conclusion that
the universal institution of petitioner to the entire inheritance results in totally abrogating the will. Because,
the nullification of such institution of universal heir — without any other testamentary disposition in the will
— amounts to a declaration that nothing at all was written. Carefully worded and in clear terms, Article
854 offers no leeway for inferential interpretation. Giving it an expansive meaning will tear up by the roots
the fabric of the statute. On this point, Sanchez Roman cites the "Memoria annual del Tribunal Supreme,
correspondiente a 1908", which in our opinion expresses the rule of interpretation, viz:

... El art. 814, que preceptua en tales casos de pretericion la nulidad de la institucion de
heredero, no consiente interpretacion alguna favorable a la persona instituida en el sentido antes
expuesto aun cuando parezca, y en algun caso pudiera ser, mas o menos equitativa, porque una
nulidad no significa en Derecho sino la suposicion de que el hecho o el acto no se ha realizado,
debiendo por lo tanto procederse sobre tal base o supuesto, y consiguientemente, en un
 testamento donde falte la institucion, es obligado llamar a los herederos forzosos en todo caso,
como habria que llamar a los de otra clase, cuando el testador no hubiese distribudo todos sus
bienes en legados, siendo tanto mas obligada esta consecuencia legal cuanto que, en materia de
testamentos, sabido es, segun tiene declarado la jurisprudencia, con repeticion, que no basta
que sea conocida la voluntad de quien testa si esta voluntad no aparece en la forma y en las
condiciones que la ley ha exigido para que sea valido y eficaz, por lo que constituiria una
interpretacion arbitraria, dentro del derecho positivo, reputar como legatario a un heredero cuya
institucion fuese anulada con pretexto de que esto se acomodaba mejor a la voluntad del
testador, pues aun cuando asi fuese, sera esto razon para modificar la ley, pero no autoriza a
una interpretacion contraria a sus terminos y a los principios que informan la testamentifaccion,
pues no porque parezca mejor una cosa en el terreno del Derecho constituyente, hay razon para
convereste juicio en regla de interpretacion, desvirtuando y anulando por este procedimiento lo
que el legislador quiere establecer. 12

3. We should not be led astray by the statement in Article 854 that, annullment notwithstanding, "the
devises and legacies shall be valid insofar as they are not inofficious". Legacies and devises merit
consideration only when they are so expressly given as such in a will. Nothing in Article 854 suggests that
the mere institution of a universal heir in a will — void because of preterition — would give the heir so
instituted a share in the inheritance. As to him, the will is inexistent. There must be, in addition to such
institution, a testamentary disposition granting him bequests or legacies apart and separate from the
nullified institution of heir. Sanchez Roman, speaking of the two component parts of Article 814, now 854,
states that preterition annuls the institution of the heir "totalmente por la pretericion"; but added (in
reference to legacies and bequests) "pero subsistiendo ... todas aquellas otras disposiciones que no se
refieren a la institucion de heredero ... . 13 As Manresa puts it, annulment throws open to intestate
succession the entire inheritance including "la porcion libre (que) no hubiese dispuesto en virtud de
legado, mejora o donacion. 14

As aforesaid, there is no other provision in the will before us except the institution of petitioner as
universal heir. That institution, by itself, is null and void. And, intestate succession ensues.

4. Petitioner's mainstay is that the present is "a case of ineffective disinheritance rather than one of
preterition". 15 From this, petitioner draws the conclusion that Article 854 "does not apply to the case at
bar". This argument fails to appreciate the distinction between pretention and disinheritance.

Preterition "consists in the omission in the testator's will of the forced heirs or anyone of them, either
because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are
expressly disinherited." 16 Disinheritance, in turn, "is a testamentary disposition depriving any compulsory
heir of his share in the legitime for a cause authorized by law. " 17 In Manresa's own words: "La privacion
expresa de la legitima constituye la desheredacion. La privacion tacita de la misma se
denomina pretericion." 18 Sanchez Roman emphasizes the distinction by stating that disinheritance "es
siempre voluntaria"; preterition, upon the other hand, is presumed to be "involuntaria". 19 Express as
disinheritance should be, the same must be supported by a legal cause specified in the will itself. 20

The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It simply omits their
names altogether. Said will rather than be labeled ineffective disinheritance is clearly one in which the
said forced heirs suffer from preterition.

On top of this is the fact that the effects flowing from preterition are totally different from those of
disinheritance. Preterition under Article 854 of the Civil Code, we repeat, "shall annul the institution of
heir". This annulment is in toto, unless in the will there are, in addition, testamentary dispositions in the
form of devises or legacies. In ineffective disinheritance under Article 918 of the same Code, such
disinheritance shall also "annul the institution of heirs", put only "insofar as it may prejudice the person
disinherited", which last phrase was omitted in the case of preterition. 21 Better stated yet, in
disinheritance the nullity is limited to that portion of the estate of which the disinherited heirs have been
illegally deprived. Manresa's expressive language, in commenting on the rights of the preterited heirs in
the case of preterition on the one hand and legal disinheritance on the other, runs thus:
"Preteridos, adquiren el derecho a todo; desheredados, solo les corresponde un tercio o dos tercios, 22 el
caso. 23

5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to receive their
legitimes, but that the institution of heir "is not invalidated," although the inheritance of the heir so
instituted is reduced to the extent of said legitimes. 24

This is best answered by a reference to the opinion of Mr. Chief Justice Moran in the Neri case heretofore
cited, viz:

But the theory is advanced that the bequest made by universal title in favor of the children by the
second marriage should be treated as legado and mejora and, accordingly, it must not be entirely
annulled but merely reduced. This theory, if adopted, will result in a complete abrogation of
Articles 814 and 851 of the Civil Code. If every case of institution of heirs may be made to fall into
the concept of legacies and betterments reducing the bequest accordingly, then the provisions of
Articles 814 and 851 regarding total or partial nullity of the institution, would. be absolutely
meaningless and will never have any application at all. And the remaining provisions contained in
said article concerning the reduction of inofficious legacies or betterments would be a surplusage
because they would be absorbed by Article 817. Thus, instead of construing, we would be
destroying integral provisions of the Civil Code.

The destructive effect of the theory thus advanced is due mainly to a failure to distinguish
institution of heirs from legacies and betterments, and a general from a special provision. With
reference to article 814, which is the only provision material to the disposition of this case, it must
be observed that the institution of heirs is therein dealt with as a thing separate and distinct from
legacies or betterments. And they are separate and distinct not only because they are distinctly
and separately treated in said article but because they are in themselves different. Institution of
heirs is a bequest by universal title of property that is undetermined. Legacy refers to specific
property bequeathed by a particular or special title. ... But again an institution of heirs cannot be
taken as a legacy. 25

The disputed order, we observe, declares the will in question "a complete nullity". Article 854 of the Civil
Code in turn merely nullifies "the institution of heir". Considering, however, that the will before us solely
provides for the institution of petitioner as universal heir, and nothing more, the result is the same. The
entire will is null.

Upon the view we take of this case, the order of November 8, 1963 under review is hereby affirmed. No
costs allowed. So ordered.

The Case

Before the Court is a Petition for Review[1] under Rule 45 of the Rules of Court, seeking to reverse and set
aside the December 12, 2002 Decision[2] and the March 7, 2003 Resolution[3] of the Court of Appeals (CA)
in CA-GR CV No. 44296. The assailed Decision disposed as follows:

WHEREFORE, the appeal is GRANTED, and the Decision appealed from

is REVERSED and SET ASIDE. In its place judgment is rendered approving and allowing
probate to the said last will and testament of Placido Valmonte and ordering the issuance
of letters testamentary to the petitioner Josefina Valmonte. Let this case be remanded to
the court a quo for further and concomitant proceedings. [4]
The assailed Resolution denied petitioner's Motion for Reconsideration.

The Facts

The facts were summarized in the assailed Decision of the CA, as follows:

x x x: Like so many others before him, Placido toiled and lived for a long time in the United
States until he finally reached retirement. In 1980, Placido finally came home to stay in the
Philippines, and he lived in the house and lot located at #9200 Catmon St., San Antonio
Village, Makati, which he owned in common with his sister Ciriaca Valmonte and titled in
their names in TCT 123468. Two years after his arrival from the United States and at the
age of 80 he wed Josefina who was then 28 years old, in a ceremony solemnized by Judge
Perfecto Laguio, Jr. on February 5, 1982. But in a little more than two years of wedded
bliss, Placido died on October 8, 1984 of a cause written down as COR PULMONALE.

Placido executed a notarial last will and testament written in English and consisting of two
(2) pages, and dated June 15, 1983 but acknowledged only on August 9, 1983. The first
page contains the entire testamentary dispositions and a part of the attestation clause, and
was signed at the end or bottom of that page by the testator and on the left hand margin
by the three instrumental witnesses. The second page contains the continuation of the
attestation clause and the acknowledgment, and was signed by the witnesses at the end
of the attestation clause and again on the left hand margin. It provides in the body that:

LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN THE NAME

OF THE LORD AMEN:

I, PLACIDO VALMONTE, of legal age, married to Josefina Cabansag

Valmonte, and a resident of 9200 Catmon Street, Makati, Metro , 83 years
of age and being of sound and disposing mind and memory, do hereby
declare this to be my last will and testament:

1. It is my will that I be buried in the Catholic Cemetery, under the auspices

of the Catholic Church in accordance with the rites and said Church and
that a suitable monument to be erected and provided my by executrix
(wife) to perpetuate my memory in the minds of my family and friends;

2. I give, devise and bequeath unto my loving wife, JOSEFINA C.

VALMONTE, one half (1/2) portion of the follow-described properties,
which belongs to me as [co-owner]:
 a. Lot 4-A, Block 13 described on plan Psd-28575, LRC,
(GLRO), situated in Makati, Metro , described and covered by
TCT No. 123468 of the Register of Deeds of Pasig, Metro-
registered jointly as co-owners with my deceased sister
(Ciriaca Valmonte), having share and share alike;

b. 2-storey building standing on the above-described property,

made of strong and mixed materials used as my residence
and my wife and located at No. 9200 Catmon Street, Makati,
Metro also covered by Tax Declaration No. A-025-00482,
Makati, Metro-, jointly in the name of my deceased sister,
Ciriaca Valmonte and myself as co-owners, share and share
alike or equal co-owners thereof;

3. All the rest, residue and remainder of my real and personal

properties, including my savings account bank book in USA which is in the
possession of my nephew, and all others whatsoever and wherever found,
I give, devise and bequeath to my said wife, Josefina C. Valmonte;

4. I hereby appoint my wife, Josefina C. Valmonte as sole executrix of

my last will and testament, and it is my will that said executrix be exempt
from filing a bond;

IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of

June 1983 in Quezon City, Philippines.

The allowance to probate of this will was opposed by Leticia on the grounds that:

1. Petitioner failed to allege all assets of the testator, especially those

found in the USA;

2. Petitioner failed to state the names, ages, and residences of the heirs
of the testator; or to give them proper notice pursuant to law;

3. Will was not executed and attested as required by law and legal
solemnities and formalities were not complied with;

4. Testator was mentally incapable to make a will at the time of the

alleged execution he being in an advance sate of senility;
 5. Will was executed under duress, or the influence of fear or threats;

6. Will was procured by undue and improper influence and pressure on

the part of the petitioner and/or her agents and/or assistants; and/or

7. Signature of testator was procured by fraud, or trick, and he did not

intend that the instrument should be his will at the time of affixing his
signature thereto;

and she also opposed the appointment as Executrix of Josefina alleging her want of
understanding and integrity.

At the hearing, the petitioner Josefina testified and called as witnesses the notary public
Atty. Floro Sarmiento who prepared and notarized the will, and the instrumental witnesses
spouses Eugenio Gomez, Jr. and Feliza Gomez and Josie Collado. For the opposition, the
oppositor Leticia and her daughter Mary Jane Ortega testified.

According to Josefina after her marriage with the testator they lived in her parents house
at Salingcob, Bacnotan, La Union but they came to every month to get his $366.00 monthly
pension and stayed at the said Makati residence. There were times though when to shave
off on expenses, the testator would travel alone. And it was in one of his travels by his
lonesome self when the notarial will was made. The will was witnessed by the spouses
Eugenio and Feliza Gomez, who were their wedding sponsors, and by Josie Collado.
Josefina said she had no knowledge of the existence of the last will and testament of her
husband, but just serendipitously found it in his attache case after his death. It was only
then that she learned that the testator bequeathed to her his properties and she was named
the executrix in the said will. To her estimate, the value of property both real and personal
left by the testator is worth more or less P100,000.00. Josefina declared too that the
testator never suffered mental infirmity because despite his old age he went alone to the
market which is two to three kilometers from their home cooked and cleaned the kitchen
and sometimes if she could not accompany him, even traveled to alone to claim his monthly
pension. Josefina also asserts that her husband was in good health and that he was
hospitalized only because of a cold but which eventually resulted in his death.

Notary Public Floro Sarmiento, the notary public who notarized the testator's will, testified
that it was in the first week of June 1983 when the testator together with the three witnesses
of the will went to his house cum law office and requested him to prepare his last will and
testament. After the testator instructed him on the terms and dispositions he wanted on the
will, the notary public told them to come back on June 15, 1983 to give him time to prepare
it. After he had prepared the will the notary public kept it safely hidden and locked in his
drawer. The testator and his witnesses returned on the appointed date but the notary public
was out of town so they were instructed by his wife to come back on August 9, 1983, and
which they did. Before the testator and his witnesses signed the prepared will, the notary
public explained to them each and every term thereof in Ilocano, a dialect which the testator
spoke and understood. He likewise explained that though it appears that the will was
signed by the testator and his witnesses on June 15, 1983, the day when it should have
been executed had he not gone out of town, the formal execution was actually on August
9, 1983. He reasoned that he no longer changed the typewritten date of June 15, 1983
because he did not like the document to appear dirty. The notary public also testified that
to his observation the testator was physically and mentally capable at the time he affixed
his signature on the will.

The attesting witnesses to the will corroborated the testimony of the notary public, and
testified that the testator went alone to the house of spouses Eugenio and Feliza Gomez
at GSIS Village, Quezon City and requested them to accompany him to the house of Atty.
Floro Sarmiento purposely for his intended will; that after giving his instructions to Atty.
Floro Sarmiento, they were told to return on June 15, 1983; that they returned on June 15,
1983 for the execution of the will but were asked to come back instead on August 9, 1983
because of the absence of the notary public; that the testator executed the will in question
in their presence while he was of sound and disposing mind and that he was strong and in
good health; that the contents of the will was explained by the notary public in the Ilocano
and Tagalog dialect and that all of them as witnesses attested and signed the will in the
presence of the testator and of each other. And that during the execution, the testator's
wife, Josefina was not with them.

The oppositor Leticia declared that Josefina should not inherit alone because aside from
her there are other children from the siblings of Placido who are just as entitled to inherit
from him. She attacked the mental capacity of the testator, declaring that at the time of the
execution of the notarial will the testator was already 83 years old and was no longer of
sound mind. She knew whereof she spoke because in 1983 Placido lived in the Makati
residence and asked Leticia's family to live with him and they took care of him. During that
time, the testator's physical and mental condition showed deterioration, aberrations and
senility. This was corroborated by her daughter Mary Jane Ortega for whom Placido took
a fancy and wanted to marry.

Sifting through the evidence, the court a quo held that [t] he evidence adduced, reduces
the opposition to two grounds, namely:

1. Non-compliance with the legal solemnities and formalities in the execution

and attestation of the will; and

2. Mental incapacity of the testator at the time of the execution of the will as he
was then in an advanced state of senility

'It then found these grounds extant and proven, and accordingly disallowed probate.[5]
 Ruling of the Court of Appeals

Reversing the trial court, the appellate court admitted the will of Placido Valmonte to probate. The CA
upheld the credibility of the notary public and the subscribing witnesses who had acknowledged the due
execution of the will. Moreover, it held that the testator had testamentary capacity at the time of the
execution of the will. It added that his 'sexual exhibitionism and unhygienic, crude and impolite ways' [6] did
not make him a person of unsound mind.

Hence, this Petition.[7]

Issues

Petitioner raises the following issues for our consideration:

I.

Whether or not the findings of the probate court are entitled to great respect.

II.

Whether or not the signature of Placido Valmonte in the subject will was procured by fraud
or trickery, and that Placido Valmonte never intended that the instrument should be his last
will and testament.

III.

Whether or not Placido Valmonte has testamentary capacity at the time he allegedly
executed the subject will.[8]
In short, petitioner assails the CA's allowance of the probate of the will of Placido Valmonte.

This Court's Ruling

The Petition has no merit.

Main Issue:

Probate of a Will

At the outset, we stress that only questions of law may be raised in a Petition for Review under Section 1
of Rule 45 of the Rules of Court. As an exception, however, the evidence presented during the trial may be
examined and the factual matters resolved by this Court when, as in the instant case, the findings of fact of
the appellate court differ from those of the trial court.[9]

The fact that public policy favors the probate of a will does not necessarily mean that every will presented
for probate should be allowed. The law lays down the procedures and requisites that must be satisfied for
the probate of a will.[10] Verily, Article 839 of the Civil Code states the instances when a will may be
disallowed, as follows:

Article 839. The will shall be disallowed in any of the following cases:

(1) If the formalities required by law have not been complied with;

(2) If the testator was insane, or otherwise mentally incapable of making a will, at the
time of its execution;
 (3) If it was executed through force or under duress, or the influence of fear, or threats;

(4) If it was procured by undue and improper pressure and influence, on the part of the
beneficiary or of some other person;

(5) If the signature of the testator was procured by fraud;

(6) If the testator acted by mistake or did not intend that the instrument he signed
should be his will at the time of affixing his signature thereto.

In the present case, petitioner assails the validity of Placido Valmonte's will by imputing fraud in its execution
and challenging the testator's state of mind at the time.

Existence of Fraud in the

Execution of a Will

Petitioner does not dispute the due observance of the formalities in the execution of the will, but maintains
that the circumstances surrounding it are indicative of the existence of fraud. Particularly, she alleges that
respondent, who is the testator's wife and sole beneficiary, conspired with the notary public and the three
attesting witnesses in deceiving Placido to sign it. Deception is allegedly reflected in the varying dates of the
execution and the attestation of the will.

Petitioner contends that it was 'highly dubious for a woman at the prime of her young life [to] almost
immediately plunge into marriage with a man who [was] thrice her age x x x and who happened to be [a]
Fil-American pensionado,[11] thus casting doubt on the intention of respondent in seeking the probate of
the will. Moreover, it supposedly 'defies human reason, logic and common experience[12] for an old man
with a severe psychological condition to have willingly signed a last will and testament.

We are not convinced. Fraud 'is a trick, secret device, false statement, or pretense, by which the subject of
it is cheated. It may be of such character that the testator is misled or deceived as to the nature or contents
of the document which he executes, or it may relate to some extrinsic fact, in consequence of the deception
regarding which the testator is led to make a certain will which, but for the fraud, he would not have
made.[13]
We stress that the party challenging the will bears the burden of proving the existence of fraud at the time
of its execution.[14] The burden to show otherwise shifts to the proponent of the will only upon a showing
of credible evidence of fraud.[15] Unfortunately in this case, other than the self-serving allegations of
petitioner, no evidence of fraud was ever presented.

It is a settled doctrine that the omission of some relatives does not affect the due execution of a will. [16] That
the testator was tricked into signing it was not sufficiently established by the fact that he had instituted his wife,
who was more than fifty years his junior, as the sole beneficiary; and disregarded petitioner and her family,
who were the ones who had taken 'the cudgels of taking care of [the testator] in his twilight years.[17]

Moreover, as correctly ruled by the appellate court, the conflict between the dates appearing on the will
does not invalidate the document, 'because the law does not even require that a [notarial] will x x x be
executed and acknowledged on the same occasion.[18] More important, the will must be subscribed by the
testator, as well as by three or more credible witnesses who must also attest to it in the presence of the
testator and of one another.[19] Furthermore, the testator and the witnesses must acknowledge the will
before a notary public.[20] In any event, we agree with the CA that 'the variance in the dates of the will as
to its supposed execution and attestation was satisfactorily and persuasively explained by the notary public
and the instrumental witnesses.[21]

The pertinent transcript of stenographic notes taken on June 11, 1985, November 25, 1985, October 13,
1986, and October 21, 1987 -- as quoted by the CA -- are reproduced respectively as follows:

Atty. Floro Sarmiento:

Q You typed this document exhibit C, specifying the date June 15 when the testator and
his witnesses were supposed to be in your office?

A Yes sir.

Q On June 15, 1983, did the testator and his witnesses come to your house?

A They did as of agreement but unfortunately, I was out of town.

xxxxxxxxx

Q The document has been acknowledged on August 9, 1983 as per acknowledgement

appearing therein. Was this the actual date when the document was
acknowledged?
A Yes sir.

Q What about the date when the testator and the three witnesses affixed their respective
signature on the first and second pages of exhibit C?

A On that particular date when it was acknowledged, August 9, 1983.

Q Why did you not make the necessary correction on the date appearing on the body of
the document as well as the attestation clause?

A Because I do not like anymore to make some alterations so I put it in my own handwriting
August 9, 1983 on the acknowledgement. (tsn, June 11, 1985, pp. 8-10)

Eugenio Gomez:

Q It appears on the first page Mr. Witness that it is dated June 15, 1983, whereas in the
acknowledgement it is dated August 9, 1983, will you look at this document and
tell us this discrepancy in the date?

A We went to Atty. Sarmiento together with Placido Valmonte and the two witnesses; that
was first week of June and Atty. Sarmiento told us to return on the 15th of June but
when we returned, Atty. Sarmiento was not there.

Q When you did not find Atty. Sarmiento on June 15, 1983, did you again go back?

A We returned on the 9th of August and there we signed.

Q This August 9, 1983 where you said it is there where you signed, who were your
companions?

A The two witnesses, me and Placido Valmonte. (tsn, November 25, 1985, pp. 7-8)

Felisa Gomez on cross-examination:

Q Why did you have to go to the office of Atty. Floro Sarmiento, three times?

xxxxxxxxx
 A The reason why we went there three times is that, the first week of June was out first
time. We went there to talk to Atty. Sarmiento and Placido Valmonte about the last
will and testament. After that what they have talked what will be placed in the
testament, what Atty. Sarmiento said was that he will go back on the 15th of June.
When we returned on June 15, Atty. Sarmiento was not there so we were not able
to sign it, the will. That is why, for the third time we went there on August 9 and
that was the time we affixed our signature. (tsn, October 13, 1986, pp. 4-6)

Josie Collado:

Q When you did not find Atty. Sarmiento in his house on June 15, 1983, what transpired?

A The wife of Atty. Sarmiento told us that we will be back on August 9, 1983.

Q And on August 9, 1983 did you go back to the house of Atty. Sarmiento?

A Yes, Sir.

Q For what purpose?

A Our purpose is just to sign the will.

Q Were you able to sign the will you mentioned?

A Yes sir. (tsn, October 21, 1987, pp. 4-5)[22]

Notably, petitioner failed to substantiate her claim of a 'grand conspiracy in the commission of a fraud.
There was no showing that the witnesses of the proponent stood to receive any benefit from the allowance
of the will. The testimonies of the three subscribing witnesses and the notary are credible evidence of its
due execution.[23] Their testimony favoring it and the finding that it was executed in accordance with the
formalities required by law should be affirmed,absent any showing of ill motives.[24]

Capacity to Make a Will

In determining the capacity of the testator to make a will, the Civil Code gives the following guidelines:
 Article 798. In order to make a will it is essential that the testator be of sound mind at the
time of its execution.

Article 799. To be of sound mind, it is not necessary that the testator be in full possession
of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or shattered
by disease, injury or other cause.

It shall be sufficient if the testator was able at the time of making the will to know the nature
of the estate to be disposed of, the proper objects of his bounty, and the character of the
testamentary act.

Article 800. The law presumes that every person is of sound mind, in the absence of proof
to the contrary.

The burden of proof that the testator was not of sound mind at the time of making his
dispositions is on the person who opposes the probate of the will; but if the testator, one
month, or less, before making his will was publicly known to be insane, the person who
maintains the validity of the will must prove that the testator made it during a lucid interval.

According to Article 799, the three things that the testator must have the ability to know to be considered of
sound mind are as follows: (1) the nature of the estate to be disposed of, (2) the proper objects of the
testator's bounty, and (3) the character of the testamentary act. Applying this test to the present case, we
find that the appellate court was correct in holding that Placido had testamentary capacity at the time of the
execution of his will.

It must be noted that despite his advanced age, he was still able to identify accurately the kinds of property
he owned, the extent of his shares in them and even their locations. As regards the proper objects of his
bounty, it was sufficient that he identified his wife as sole beneficiary. As we have stated earlier, the
omission of some relatives from the will did not affect its formal validity. There being no showing of fraud in
its execution, intent in its disposition becomes irrelevant.

Worth reiterating in determining soundness of mind is Alsua-Betts v. CA, [25] which held thus:

"Between the highest degree of soundness of mind and memory which unquestionably
carries with it full testamentary capacity, and that degrees of mental aberration generally
known as insanity or idiocy, there are numberless degrees of mental capacity or incapacity
and while on one hand it has been held that mere weakness of mind, or partial imbecility
from disease of body, or from age, will not render a person incapable of making a will; a
weak or feebleminded person may make a valid will, provided he has understanding and
 memory sufficient to enable him to know what he is about to do and how or to whom he is
disposing of his property. To constitute a sound and disposing mind, it is not necessary
that the mind be unbroken or unimpaired or unshattered by disease or otherwise. It has
been held that testamentary incapacity does not necessarily require that a person shall
actually be insane or of unsound mind."[26]

WHEREFORE, the Petition is DENIED , and the assailed Decision and Resolution of the Court of Appeals
are AFFIRMED . Costs against petitioner.

SO ORDERED.

In re of Dolores Coronel, deceased.

LORENZO PECSON, applicant-appellee,
vs.
AGUSTIN CORONEL, ET AL., opponents-appellants.

Fisher, DeWitt, Perkins and Brady for appellants.

Ross and Lawrence and Guillermo Lualhati for appellee.

ROMUALDEZ, J.:

On November 28, 1922, the Court of First Instance of Pampanga probated as the last will and testament
of Dolores Coronel, the document Exhibit A, which translated is as follows:

In the name of God, Amen:

I, Dolores Coronel, resident of Betis, Guagua, Pampanga, Philippine Islands, in the full exercise
of my mental faculties, do hereby make my last will and testament, and revoke all former wills by
me executed.

I direct and order that my body be buried in conformity with my social standing.

That having no forced heirs, I will all my properties, both movable and immovable, to my nephew,
Lorenzo Pecson, who is married to my niece Angela Coronel, in consideration of the good
services with he has rendered, and is rendering to me with good will and disinterestedness and to
my full satisfaction.

I name and appoint my aforesaid nephew, Lorenzo Pecson, executor of all that is willed and
ordained in this my will, without bond. Should he not be able to discharge his duties as such
executor for any reason whatsoever, I name and appoint as substitute executor my grandson
Victor Pecson, a native and resident of the town of Betis, without requiring him to give
bond. 1awph!l.net
 All my real and paraphernal property as well as my credits for I declare that I have no debts, are
specified in an inventory.

In testimony whereof and as I do not know how to write my name, I have requested Vicente J.
Francisco to write my name at the foot hereof and on the left margin of each of its sheet before
me and all the undersigned witnesses this July 1, 1918.

VICENTE J. FRANCISCO
"For the testatrix Dolores Coronel

The foregoing document was executed and declared by Dolores Coronel to be her last will and
testament in our presence, and as the testatrix does not know how to write her name, she
requested Vicente J. Francisco to sign her name under her express direction in our presence, at
the foot, and on the left margin of each and every sheet, hereof. In testimony whereof, each of us
signed these presents in the presence of others and of the testatrix at the foot hereof and on the
margin of each and everyone of the two sheets of which this document is composed, which are
numbered "one" and "two" on the upper part of the face thereof.

(Sgd.) "MAXIMO VERGARA SOTERO DUMAUAL MARCOS DE LOS

SANTOS

MARIANO L. CRISOSTOMO PABLO BARTOLOME MARCOS DE LA

CRUZ DAMIAN CRISOSTOMO

On the left margin of the two sheets of the will the following signatures also appear:

Mariano L. Crisostomo, Vicente J. Francisco for the testatrix Dolores Coronel, M. Vergara, Pablo
Bartolome, Sotero Dumaual Crisostomo, Marcos de la Cruz, Marcos de los Santos.

The petitioner for the probate of the will is Lorenzo Pecson, husband of Angela Coronel, who is a niece of
the deceased Dolores Coronel.

The opponents are: Eriberto Coronel, Tito Coronel, Julian Gozum, Cirila Santiago, widow of the deceased
Macario Gozum, in her own behalf and that of her three minor children, Hilarion Coronel, Geronimo
Coronel, Maria Coronel and her husband Eladio Gongco, Juana Bituin, widow of the deceased Hipolito
Coronel, in her own behalf and that of her three children, Generosa, Maria, and Jose, all minors, Rosario
Coronel, Agustin Coronel, Filomeno Coronel, Casimiro Coronel, Alejo Coronel, Maria Coronel, Severina
Coronel, Serapia Coronel, Maria Juana de Ocampo, widow of the deceased Manuel Coronel, Dionisia
Coronel, and her husband Pantaleon Gunlao.

The probate of this will is impugned on the following grounds: (a) That the proof does not that the
document Exhibit A above copied contains the last will of Dolores Coronel, and (b) that the attestation
clause is not in accordance with the provisions of section 618 of the Code of Civil Procedure, as amended
by Act No. 2645.

These are the two principal questions which are debated in this case and which we will now examine
separately.

As to the first, which is the one raised in the first assignment of error, the appellants argue: First, that it
was improbable and exceptional that Dolores Coronel should dispose of her estate, as set forth in the
document Exhibit A, her true being that the same be distributed among her blood relatives; and second,
that if such will not expressed in fact, it was due to extraneous illegal influence.

Let us examine the first point.

The opponents contend that it was not, nor could it be, the will of the testatrix, because it is not natural
nor usual that she should completely exclude her blood relatives from her vast estate, in order to will the
same to one who is only a relative by affinity, there appearing no sufficient motive for such exclusion,
inasmuch as until the death of Dolores Coronel, she maintained very cordial relations with the aforesaid
relatives who had helped her in the management and direction of her lands. It appears, however, from the
testimony of Attorney Francisco (page 71, transcript of the stenographic notes) that Dolores Coronel
revealed to him her suspicion against some of her nephews as having been accomplices in a robbery of
which she had been a victim.

As to whether or not Lorenzo Pecson rendered services to Dolores Coronel, the opponents admit that he
rendered them at least from the year 1914, although there is proof showing that he rendered such
services long before that time.

The appellants emphasize the fact that family ties in this country are very strongly knit and that the
exclusion of relative one's estate an exceptional case. It is true that ties of relationship in the Philippines
are very strong, but we understand that cases of preterition of relatives from the inheritance are not rare.
The liberty to dispose of one's estate by will when there are no forced heirs is rendered sacred by the civil
Code in force in the Philippines since 1889. It is so provided in the first paragraph of article in the
following terms:

Any person who was no forced heirs may dispose by will of all his property or any part of it in
favor of any person qualified to acquire it.

Even ignoring the precedents of this legal precept, the Code embodying it has been in force in the
Philippines for more than a quarter of a century, and for this reason it is not tenable to say that the
excercise of the liberty thereby granted is necessarily exceptional, where it is not shown that the
inhabitants of this country whose customs must have been take into consideration by the legislator in
adopting this legal precept, are averse to such a liberty.

As to preference given to Lorenzo Pecson, it is not purely arbitrary, nor a caprice or a whim of the
moment. The proof adduced by this appelle, although contradicted, shows by a preponderance of
evidence that besides the services which the opponents admit had been rendered by him to Dolores
Coronel since the year 1914, he had also rendered services prior to that time and was the administrator
and manager of the affairs of said Dolores in the last years of her life. And that this was not a whim of the
moment is shown by the fact that six years before the execution of the will in question, said Lorenzo
Pecson was named and appointed by Dolores Coronel as her sole heir in the document Exhibit B, which,
translated, is as follows:

1. That my present property was acquired by me by inheritance from my parents, but a great part
thereof was acquired by me by my own efforts and exertions;

2. That I have made no inventory of my properties, but they can be seen in the title deeds in my
possession and in the declarations of ownership;

3. That I institute Lorenzo Pecson, married to Angela Coronel, and a known resident of the town,
my heir to succeed to all my properties;

4. That I appoint my said heir, Lorenzo Pecson, as executor, and, in his default, Victor Pecson, a
resident of the same town;

5. That as to my burial and other things connected with the eternal rest of my soul, I leave them to
the sound direction of the aforesaid Lorenzo Pecson;

6. That as I cannot write I requested Martin Pangilinan, a native and resident of this town, to write
this will in accordance with my wishes and precise instructions.
 In testimony whereof I had the said Martin Pangilinan write my name and surname, and affixed
my mark between my name and surname, and don Francisco Dumaual, Don Mariano Sunglao,
Don Sotero Dumaual, Don Marcos de la Cruz and Don Martin Pangilinan signed as witnesses,
they having been present at the beginning of, during, and after, the execution of this my last will.

(Sgd.) "DOLORES CORONEL

Witnesses:

(Sgd.) "MARIANO SUNGLAO

MARCOS DE LA CRUZ
FRANCISCO DUMAUAL
SOTERO DUMAUAL
MARTIN PANGILINAN"

The appellants find in the testament Exhibit B something to support their contention that the intention of
Dolores Coronel was to institute the said Pecson not as sole beneficiary, but simply as executor and
distributor of all her estate among her heirs, for while Lorenzo Pecson's contention that he was appointed
sold beneficiary is based on the fact that he enjoyed the confidence of Dolores Coronel in 1918 and
administered all her property, he did not exclusively have this confidence and administration in the year
1912. Although such administration and confidence were enjoyed by Pecson always jointly with others
and never exclusively, this fact does not show that the will of the testatrix was to appoint Pecson only as
executor and distributor of her estate among the heirs, nor does it prevent her, the testatrix, from
instituting him in 1912 or 1918 as sole beneficiary; nor does it constitute, lastly, a test for determining
whether or not such institution in favor of Pecson was the true will of the testatrix.

We find, therefore, nothing strange in the preterition made by Dolores Coronel of her blood relatives, nor
in the designation of Lorenzo Pecson as her sole beneficiary. Furthermore, although the institution of the
beneficiary here would not seem the most usual and customary, still this would not be null per se.

In the absence of any statutory restriction every person possesses absolute dominion over his
property, and may bestow it upon whomsoever he pleases without regard to natural or legal claim
upon his bounty. If the testator possesses the requisite capacity to make a will, and the
disposition of his property is not affected by fraud of undue influence, the will is not rendered
invalid by the fact that it is unnatural, unreasonable, or unjust. Nothing can prevent the testator
from making a will as eccentric, as injudicious, or as unjust as caprice, frivolity, or revenge can
dictate. However, as has already been shown, the unreasonable or unjustice of a will may be
considered on the question of testamentary capacity. (40 Cyc., 1079.)

The testamentary capacity of Dolores Coronel is not disputed in this case.

Passing to the second question, to wit, whether or not the true last will of Dolores Coronel was expressed
in the testament Exhibit A, we will begin with expounding how the idea of making the aforesaid will here
controverted was borne and carried out.

About the year 1916 or 1917, Dolores showed the document Exhibit B to Attorney Francisco who was
then her legal adviser and who, considering that in order to make the expression of her last will more
legally valid, though it necessary that the statement be prepared in conformity with the laws in force at
time of the death of the testatrix, and observing that the will Exhibit B lacked the extrinsic formalities
required by Act No. 2645 enacted after its execution, advised Dolores Coronel that the will be remade.
She followed the advice, and Attorney Francisco, after receiving her instructions, drew the will Exhibit A in
accordance therewith, and brought it to the house of Dolores Coronel for its execution.

Pablo Bartolome read Exhibit A to Dolores Coronel in her presence and that of the witnesses and asked
her whether the will was in accordance with her wishes. Dolores Coronel answer that it was, and
requested her attorney, Mr. Francisco, to sign the will for her, which the attorney accordingly did in the
presence of the witnesses, who in turn signed it before the testatrix and in the presence of each other.

Upon the filing of the motion for a rehearing on the first order allowing the probate of the will, the
opponents presented an affidavit of Pablo Bartolome to the effect that, following instructions of Lorenzo
Pecson, he had informed the testatrix that the contents of the will were that she entrusted Pecson with the
distribution of all her property among the relatives of the said Dolores. But during the new trial Pablo
Bartolome, in spite of being present in the court room on the day of the trial, was not introduced as a
witness, without such an omission having been satisfactorily accounted for.

While it is true that the petitioner was bound to present Pablo Bartolome, being one of the witnesses who
signed the will, at the second hearing when the probate was controverted, yet we cannot consider this
point against the appellee for this was not raised in any of the assignments of error made by the
appellants. (Art. 20, Rules of the Supreme Court.)

On the other hand, it was incumbent upon the opponents to present Pablo Bartolome to prove before the
court the statement by him in his affidavit, since it was their duty to prove what they alleged, which was
that Dolores Coronel had not understood the true contents of the will Exhibit A. Having suppressed,
without explanation, the testimony of Pablo Bartolome, the presumption is against the opponents and that
is, that such a testimony would have been adverse had it been produced at the hearing of the case before
the court. (Sec 334, subsec. 5, Code of Civil Procedure.)

The opponents call our attention to the fourth clause of the document which says: "I name and appoint my
aforesaid nephew, Lorenzo Pecson, executor of all that is willed and ordained in this my will, without
bond. Should he not be able to discharge his duties as such executor for any reason whatsoever, I name
and appoint as a substitute executor my grandson Victor Pecson, resident of the town of Betis, without
requiring him to give bond," and contend that this clause is repugnant to the institution of Lorenzo Pecson
as sole beneficiary of all her estate, for if such was the intention of the testatrix, there would have been no
necessity of appointing an executor, nor any reason for designating a substitute in case that the first one
should not be able to discharge his duties, and they perceived in this clause the idea which, according to
them, was not expressed in the document, and which was that Pecson was simply to be a mere executor
entrusted with the distribution to the estate among the relatives of the testatrix, and that should he not be
able to do so, this duty would devolved upon his substitutes.

But it is not the sole duty of an executor to distribute the estate, which in estate succession, such as the
instant case, has to be distributed with the intervention of the court. All executor has, besides, other
duties and general and special powers intended for the preservation, defense, and liquidation of the
estate so long as the same has not reached, by order of the court, the hands of those entitled thereto.

The fact that Dolores Coronel foresaw the necessity of an executor does not imply a negation of her
desire to will all her estate to Lorenzo Pecson. It is to be noted, furthermore, that in the will, it was ordered
that her body be given a burial in accordance with her social standing and she had a perfect right to
designate a person who should see to it that this order was complied with. One of the functions of an
executor is the fulfillment of what is ordained in the will.

It is argued that the will of the testatrix was to will her estate to her blood relatives, for such was the
promise made to Maria Coronel, whom Rosario Coronel tends to corroborate. We do not find such a
promise to have been sufficiently proven, and much less to have been seriously made and coupled with a
positive intention on the part of Dolores Coronel to fulfill the same. In the absence of sufficient proof of
fraud, or undue influence, we cannot take such a promise into account, for even if such a promise was in
fact made, Dolores Coronel could retract or forget it afterwards and dispose of her estate as she pleased.
Wills themselves, which contain more than mere promises, are essentially revocable.

It is said that the true will of Dolores Coronel not expressed in the will can be inferred from the phrase
used by Jose M. Reyes in his deposition when speaking of the purpose for which Lorenzo Pecson was to
receive the estate, to wit:
 in order that the latter might dispose of the estate in the most appropriate manner

Weight is given to this phrase from the circumstance that its author was requested by Attorney Francisco
to explain the contents of Exhibit B and had acted as interpreter between Dolores Coronel and Attorney
Francisco at their interviews previous to the preparation of Exhibit A, and had translated into the
Pampango dialect this last document, and, lastly, was present at the execution of the will in question.

The disputed phrase "in order that the latter might dispose of the estate in the most appropriate manner"
was used by the witness Reyes while sick in a hospital and testifying in the course of the taking of his
deposition.

The appellants interpret the expression "dispose in the most appropriate manner" as meaning to say
"distribute it among the heirs." Limiting ourselves to its meaning, the expression is a broad one, for the
disposition may be effected in several and various ways, which may not necessarily be a "distribution
among the heirs," and still be a "disposition in the most appropriate manner." "To dispose" is not the same
as "to distribute."

To judge correctly the import of this phrase, the circumstances under which it was used must be taken
into account in this particular instance. The witness Reyes, the author of the phrase, was not expressing
his own original ideas when he used it, but was translating into Spanish what Dolores Coronel had told
him. According to the facts, the said witness is not a Spaniard, that is to say, the Spanish language is not
his native tongue, but, perhaps, the Pampango dialect. It is an admitted fact based on reason and
experience that when a person translates from one language to another, it is easier for him to express
with precision and accuracy when the version is from a foreign language to a native one than vice-versa.
The witness Reyes translated from the Pampango dialect, which must be more familiar to him, to the
Spanish language which is not his own tongue. And judging from the language used by him during his
testimony in this case, it cannot be said that this witness masters the Spanish language. Thus is
explained the fact that when asked to give the reason for the appointment of an executor in the will, he
should say at the morning session that "Dolores Coronel did appoint Don Lorenzo Pecson and in his
default, Victor Pecson, to act during her lifetime, but not after he death," which was explained at the
afternoon session by saying "that Dolores Coronel did appoint Don Lorenzo Pecson executor of all her
estate during his lifetime and that in his default, either through death or incapacity, Mr. Victor Pecson was
appointed executor." Taking into account all the circumstances of this witness, there is ground to attribute
his inaccuracy as to the discharge of the duties of an executor, not to ignorance of the elementary rule of
law on the matter, for the practice of which he was qualified, but to a non-mastery of the Spanish
language. We find in this detail of translation made by the witness Reyes no sufficient reason to believe
that the will expressed by Dolores Coronel at the said interview with Attorney Francisco was to appoint
Lorenzo Pecson executor and mere distributor of her estate among her heirs.

As to whether or not the burden of proof was on the petitioner to establish that he was the sole legatee to
the exclusion of the relatives of Dolores Coronel, we understand that it was not his duty to show the
reasons which the testatrix may have had for excluding her relatives from her estate, giving preference to
him. His duty was to prove that the will was voluntary and authentic and he, who alleges that the estate
was willed to another, has the burden of proving his allegation.

Attorney Francisco is charged with having employed improper means of making Lorenzo Pecson appear
in the will as sole beneficiary. However, after an examination of all the proceedings had, we cannot find
anything in the behavior of this lawyer, relative to the preparation and execution of the will, that would
justify an unfavorable conclusion as to his personal and professional conduct, nor that he should harbor
any wrongful or fraudulent purpose.

We find nothing censurable in his conduct in advising Dolores Coronel to make a new will other than the
last one, Exhibit B (in the drawing of which he does not appear to her intervened), so that the instrument
might be executed with all the new formalities required by the laws then in force; nor in the preparation of
the new will substantially in accordance with the old one; nor in the selection of attesting witnesses who
were persons other than the relatives of Dolores Coronel. Knowing, as he did, that Dolores was excluding
her blood relatives from the inheritance, in spite of her having been asked by him whether their exclusion
was due to a mere inadvertence, there is a satisfactory explanation, compatible with honorable conduct,
why said attorney should prescind from such relatives in the attesting of the will, to the end that no
obstacle be placed in the way to the probating thereof.

The fact that this attorney should presume that Dolores was to ask him to sign the will for her and that he
should prepare it containing this detail is not in itself fraudulent. There was in this case reason so to
presume, and it appears that he asked her, through Pablo Bartolome, whom she wanted to sign the
document in her stead.

No imputation can be made to this attorney of any interest in favoring Lorenzo Pecson in the will, because
the latter was already his client at the execution of said will. Attorney Francisco denied this fact, which we
cannot consider proven after examining the evidence.

The conduct observed by this attorney after the death of Dolores Coronel in connection with the
attempted arrangement between Lorenzo Pecson and the opponents, does not, in our opinion, constitute
any data leading to the conclusion that an heir different from the true one intended by the testatrix should
have been fraudulently made to appear instituted in the will exhibit A. His attitude towards the opponents,
as can be gathered from the proceedings and especially from his letter Exhibit D, does not show any
perverse or fraudulent intent, but rather a conciliatory purpose. It is said that such a step was well
calculated to prevent every possible opposition to the probate of the will. Even admitting that one of his
objects in entering into such negotiations was to avoid every possible to the probate of the will, such
object is not incompatible with good faith, nor does it necessarily justify the inference that the heir
instituted in the instrument was not the one whom the testatrix wanted appointed.

The appellants find rather suspicious the interest shown by the said attorney in trying to persuade
Lorenzo Pecson to give them some share of the estate. These negotiations were not carried out by the
attorney out of his own initiative, but at the instance of the same opponent, Agustin Coronel, made by the
latter in his own behalf and that of his coopponents.

As to Lorenzo Pecson, we do not find in the record sufficient proof to believe that he should have tried,
through fraud or any undue influence, to frustrate the alleged intention of the testatrix to leave her estate
to her blood relatives. The opponents insinuate that Lorenzo Pecson employed Attorney Francisco to
carry out his reproachable designs, but such depraved instrumentality was not proven, nor was it shown
that said lawyer, or Lorenzo Pecson, should have contrived or put into execution any condemnable plan,
nor that both should have conspired for illegal purposes at the time of the preparation and execution of
the will Exhibit A.

Although Norberto Paras testified having heard, when the will was being read to Dolores Coronel, the
provision whereby the estate was ordered distributed among the heirs, the preponderance of the
evidence is to the effect that said Norberto Paras was not present at such reading of the will. Appellant do
not insist on the probative force of the testimony of this witness, and do not oppose its being stricken out.

The data furnished by the case do not show, to our mind, that Dolores Coronel should have had the
intention of giving her estate to her blood relatives instead of to Lorenzo Pecson at the time of the
execution of the will Exhibit A, nor that fraud or whatever other illegal cause or undue influence should
have intervened in the execution of said testament. Neither fraud nor evil is presumed and the record
does not show either.

Turning to the second assignment of error, which is made to consist in the will having been probated in
spite of the fact that the attestation clause was not in conformity with the provision of section 618 of the
Code of Civil Procedure, as amended by Act No. 2645, let us examine the tenor of such clause which
literally is as follows:
 The foregoing document was executed and declared by Dolores Coronel to be her last will
testament in our presence, and as testatrix does not know how to write her name, she requested
Vicente J. Francisco to sign her name under her express direction in our presence at the foot and
on the left margin of each and every sheet hereof. In testimony whereof, each of us signed these
presents in the presence of others of the testatrix at the foot hereof and on the margin of each
and everyone of the two pages of which this document is composed. These sheets are numbered
correlatively with the words "one and "two on the upper part of the face thereof.

(Sgd.) "Maximo Vergara, Sotero Dumaual, Marcos de los Santos, Mariano L.

Crisostomo, Pablo Bartolome, Marcos de la Cruz, Damian Crisostomo."

Appellants remark that it is not stated in this clause that the will was signed by the witnesses in the
presence of the testatrix and of each other, as required by section 618 of the Code of Civil Procedure, as
amended, which on this particular point provides the following:

The attestation shall state the number of sheets or pages used, upon which the will is written, and
the fact that the testator signed the will and every page thereof, or caused some other person to
write his name, under his express direction, in the presence of three witnesses, and the latter
witnessed and signed the will and all pages thereof in the presence of the testator and of each
other.

Stress is laid on the phrase used in the attestation clause above copied, to wit:

each of us signed in the presence of others.

Two interpretations can absolutely be given here to the expression "of others." One, that insinuated by the
appellants, namely, that it is equivalent to "of other persons," and the other, that contended by the
appellee, to wit, that the phrase should be held to mean "of the others," the article "the" having
inadvertently been omitted.

Should the first interpretation prevail and "other persons" be taken to mean persons different from the
attesting witnesses, then one of the solemnities required by law would be lacking. Should the second be
adopted and "of others" construed as meaning the other witnesses to the will, then the law would have
been complied with in this respect.

Including the concomitant words, the controverted phrase results thus: "each of us signed these presents
in the presence of others and of the testatrix."

If we should omit the words "of others and," the expression would be reduced to "each of us signed these
presents in the presence of the testatrix," and the statement that the witnesses signed each in the
presence of the others would be lacking. But as a matter of fact, these words "of others and" are present.
Then, what for are they there? Is it to say that the witnesses signed in the presence of other persons
foreign to the execution of the will, which is completely useless and to no purpose in the case, or was it
for some useful, rational, necessary object, such as that of making it appear that the witnesses signed the
will each in the presence of the others? The first theory presupposes that the one who drew the will, who
is Attorney Francisco, was an unreasonable man, which is an inadmissible hypothesis, being repugnant
to the facts shown by the record. The second theory is the most obvious, logical and reasonable under
the circumstances. It is true that the expression proved to be deficient. The deficiency may have been
caused by the drawer of the will or by the typist. If by the typist, then it must be presumed to have been
merely accidental. If by the drawer, it is explainable taking into account that Spanish is not only not the
native language of the Filipinos, who, in general, still speak until nowadays their own dialects, but also
that such language is not even the only official language since several years ago.

In Re will of Abangan (40 Phil., 476), this court said:

 The object of the solemnities surrounding the execution of wills is to close the door against bad
faith and fraud, to avoid substitution of wills and testaments and to guarantee their truth and
authenticity. Therefore the laws on this subject should be interpreted in such a way as to attain
these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not
the object of the law to restrain and curtail the exercise of the right to make a will. So when an
interpretation already given assures such ends, any other interpretation whatsoever, that adds
nothing but demands more requisite entirely unnecesary, useless and frustrative of the testator's
last will, must be disregarded.

We believe it to be more reasonable to construe the disputed phrase "of others" as meaning "of the other
witnesses," and that a grammatical or clerical error was committed consisting in the omission of the article
"the".

Grammatical or clerical errors are not usually considered of vital importance when the intention is
manifest in the will.

The court may correct clerical mistakes in writing, and disregard technical rules of grammar as to
the construction of the language of the will when it becomes necessary for it to do so in order to
effectuate the testators manifest intention as ascertained from the context of the will. But unless a
different construction is so required the ordinary rules of grammar should be adhered to in
construing the will. (40 Cyc., 1404).

And we understand that in the present case the interpretation we adopt is imperative, being the most
adequate and reasonable.

The case of In the matter of the estate of Geronima Uy Coque (43 Phil., 405), decided by this court and
invoked by the appellants, refers so far as pertinent to the point herein at issue, to an attestation clause
wherein the statement that the witnesses signed the will in the presence of each other is totally absent. In
the case at bar, there is the expression "in the presence of others" whose reasonable interpretation is, as
we have said, "in the presence of the other witnesses." We do not find any party between the present
case and that of Re Estate of Geronima Uy Coque above cited.

Finally, we will take up the question submitted by the opponents as to the alleged insufficiency of the
evidence to show that the attesting witnesses Damian Crisostomo and Sotero Dumaual were present at
the execution of the will in controversy. Although this point is raised in the first assignment of error made
by the appellants, and not in the second, it is discussed in this place because it refers to the very fact of
attestation. However, we do not believe it necessary to analyze in detail the evidence of both parties on
this particular point. The evidence leads us to the conclusion that the two witnesses aforementioned were
present at the execution and signing of the will. Such is also the conclusion of the trial judge who, in this
respect, states the following, in his decision:

As to the question of whether or not the testatrix and witnesses signed the document Exhibit A in
accordance with the provisions of law on the matter, that is, whether or not the testatrix signed the will, or
caused it to be signed, in the presence of the witnesses, and the latter in turn signed in her presence and
that of each other, the court, after observing the demeanor of the witnesses for both parties, is of the
opinion that those for the petitioner spoke the truth. It is neither probable nor likely that a man versed in
the law, such as Attorney Francisco, who was present at the execution of the will in question, and to
whose conscientiousness in the matter of compliance with all the extrinsic formalities of the execution of a
will, and to nothing else, was due the fact that the testatrix had cancelled her former will (Exhibit B) and
had new one (Exhibit A) prepared and executed, should have consented the omission of formality
compliance with which would have required little or no effort; namely, that of seeing to it that the testatrix
and the attesting witnesses were all present when their respective signatures were affixed to the will."
And the record does not furnish us sufficient ground for deviating from the line reasoning and findings of
the trial judge.
In conclusion we hold that the assignments of error made by the appellants are not supported by the
evidence of record.

The judgment appealed from if affirmed with costs against the appellants. So ordered.

CONSTANTINO C. ACAIN, petitioner,

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

PARAS, J.:

This is a petition for review on certiorari of the decision * of respondent. Court of Appeals in AC-G.R. SP
No. 05744 promulgated on August 30, 1985 (Rollo, p. 108) ordering the dismissal of the petition in
Special Proceedings No, 591 ACEB and its Resolution issued on October 23, 1985 (Rollo, p. 72) denying
respondents' (petitioners herein) motion for reconsideration.

The dispositive portion of the questioned decision reads as follows:

WHEREFORE, the petition is hereby granted and respondent Regional Trial Court of the
Seventh Judicial Region, Branch XIII (Cebu City), is hereby ordered to dismiss the
petition in Special Proceedings No. 591 ACEB No special pronouncement is made as to
costs.

The antecedents of the case, based on the summary of the Intermediate Appellate Court, now Court of
Appeals, (Rollo, pp. 108-109) are as follows:

On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial Court of Cebu City Branch XIII,
a petition for the probate of the will of the late Nemesio Acain and for the issuance to the same petitioner
of letters testamentary, docketed as Special Proceedings No. 591 ACEB (Rollo, p. 29), on the premise
that Nemesio Acain died leaving a will in which petitioner and his brothers Antonio, Flores and Jose and
his sisters Anita, Concepcion, Quirina and Laura were instituted as heirs. The will allegedly executed by
Nemesio Acain on February 17, 1960 was written in Bisaya (Rollo, p. 27) with a translation in English
(Rollo, p. 31) submi'tted by petitioner without objection raised by private respondents. The will contained
provisions on burial rites, payment of debts, and the appointment of a certain Atty. Ignacio G. Villagonzalo
as the executor of the testament. On the disposition of the testator's property, the will provided:

THIRD: All my shares that I may receive from our properties. house, lands and money
which I earned jointly with my wife Rosa Diongson shall all be given by me to my brother
SEGUNDO ACAIN Filipino, widower, of legal age and presently residing at 357-C
Sanciangko Street, Cebu City. In case my brother Segundo Acain pre-deceased me, all
the money properties, lands, houses there in Bantayan and here in Cebu City which
constitute my share shall be given to me to his children, namely: Anita, Constantino,
Concepcion, Quirina, laura, Flores, Antonio and Jose, all surnamed Acain.

Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo who are claiming to be
heirs, with Constantino as the petitioner in Special Proceedings No. 591 ACEB

After the petition was set for hearing in the lower court on June 25, 1984 the oppositors (respondents
herein Virginia A. Fernandez, a legally adopted daughter of tile deceased and the latter's widow Rosa
Diongson Vda. de Acain filed a motion to dismiss on the following grounds for the petitioner has no legal
capacity to institute these proceedings; (2) he is merely a universal heir and (3) the widow and the
adopted daughter have been pretirited. (Rollo, p. 158). Said motion was denied by the trial judge.

After the denial of their subsequent motion for reconsideration in the lower court, respondents filed with
the Supreme Court a petition for certiorari and prohibition with preliminary injunction which was
subsequently referred to the Intermediate Appellate Court by Resolution of the Court dated March 11,
1985 (Memorandum for Petitioner, p. 3; Rollo, p. 159).

Respondent Intermediate Appellate Court granted private respondents' petition and ordered the trial court
to dismiss the petition for the probate of the will of Nemesio Acain in Special Proceedings No. 591 ACEB

His motion for reconsideration having been denied, petitioner filed this present petition for the review of
respondent Court's decision on December 18, 1985 (Rollo, p. 6). Respondents' Comment was filed on
June 6, 1986 (Rollo, p. 146).

On August 11, 1986 the Court resolved to give due course to the petition (Rollo, p. 153). Respondents'
Memorandum was filed on September 22, 1986 (Rollo, p. 157); the Memorandum for petitioner was filed
on September 29, 1986 (Rollo, p. 177).

Petitioner raises the following issues (Memorandum for petitioner, p. 4):

(A) The petition filed in AC-G.R. No. 05744 for certiorari and prohibition with preliminary
injunction is not the proper remedy under the premises;

(B) The authority of the probate courts is limited only to inquiring into the extrinsic validity
of the will sought to be probated and it cannot pass upon the intrinsic validity thereof
before it is admitted to probate;

(C) The will of Nemesio Acain is valid and must therefore, be admitted to probate. The
preterition mentioned in Article 854 of the New Civil Code refers to preterition of
"compulsory heirs in the direct line," and does not apply to private respondents who are
not compulsory heirs in the direct line; their omission shall not annul the institution of
heirs;

(D) DICAT TESTATOR ET MERIT LEX. What the testator says will be the law;

(E) There may be nothing in Article 854 of the New Civil Code, that suggests that mere
institution of a universal heir in the will would give the heir so instituted a share in the
inheritance but there is a definite distinct intention of the testator in the case at bar,
explicitly expressed in his will. This is what matters and should be in violable.

(F) As an instituted heir, petitioner has the legal interest and standing to file the petition in
Sp. Proc. No. 591 ACEB for probate of the will of Nemesio Acain and

(G) Article 854 of the New Civil Code is a bill of attainder. It is therefore unconstitutional
and ineffectual.

The pivotal issue in this case is whether or not private respondents have been pretirited.

Article 854 of the Civil Code provides:

Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in the
direct line, whether living at the time of the execution of the will or born after the death of
 the testator, shall annul the institution of heir; but the devisees and legacies shall be valid
insofar as they are not; inofficious.

If the omitted compulsory heirs should die before the testator, the institution shall he
effectual, without prejudice to the right of representation.

Preterition consists in the omission in the testator's will of the forced heirs or anyone of them either
because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are
expressly disinherited (Nuguid v. Nuguid, 17 SCRA 450 [1966]; Maninang v. Court of Appeals, 114 SCRA
478 [1982]). Insofar as the widow is concerned, Article 854 of the Civil Code may not apply as she does
not ascend or descend from the testator, although she is a compulsory heir. Stated otherwise, even if the
surviving spouse is a compulsory heir, there is no preterition even if she is omitted from the inheritance,
for she is not in the direct line. (Art. 854, Civil code) however, the same thing cannot be said of the other
respondent Virginia A. Fernandez, whose legal adoption by the testator has not been questioned by
petitioner (.Memorandum for the Petitioner, pp. 8-9). Under Article 39 of P.D. No. 603, known as the Child
and Youth Welfare Code, adoption gives to the adopted person the same rights and duties as if he were a
legitimate child of the adopter and makes the adopted person a legal heir of the adopter. It cannot be
denied that she has totally omitted and preterited in the will of the testator and that both adopted child and
the widow were deprived of at least their legitime. Neither can it be denied that they were not expressly
disinherited. Hence, this is a clear case of preterition of the legally adopted child.

Pretention annuls the institution of an heir and annulment throws open to intestate succession the entire
inheritance including "la porcion libre (que) no hubiese dispuesto en virtual de legado mejora o donacion"
Maniesa as cited in Nuguid v. Nuguid, supra; Maninang v. Court of Appeals, 114 SCRA [1982]). The only
provisions which do not result in intestacy are the legacies and devises made in the will for they should
stand valid and respected, except insofar as the legitimes are concerned.

The universal institution of petitioner together with his brothers and sisters to the entire inheritance of the
testator results in totally abrogating the will because the nullification of such institution of universal heirs-
without any other testamentary disposition in the will-amounts to a declaration that nothing at all was
written. Carefully worded and in clear terms, Article 854 of the Civil Code offers no leeway for inferential
interpretation (Nuguid v. Nuguid), supra. No legacies nor devises having been provided in the will the
whole property of the deceased has been left by universal title to petitioner and his brothers and sisters.
The effect of annulling the "Institution of heirs will be, necessarily, the opening of a total intestacy (Neri v.
Akutin, 74 Phil. 185 [1943]) except that proper legacies and devises must, as already stated above, be
respected.

We now deal with another matter. In order that a person may be allowed to intervene in a probate
proceeding he must have an interest iii the estate, or in the will, or in the property to be affected by it
either as executor or as a claimant of the estate and an interested party is one who would be benefited by
the estate such as an heir or one who has a claim against the estate like a creditor (Sumilang v.
Ramagosa, 21 SCRA 1369/1967). Petitioner is not the appointed executor, neither a devisee or a legatee
there being no mention in the testamentary disposition of any gift of an individual item of personal or real
property he is called upon to receive (Article 782, Civil Code). At the outset, he appears to have an
interest in the will as an heir, defined under Article 782 of the Civil Code as a person called to the
succession either by the provision of a will or by operation of law. However, intestacy having resulted
from the preterition of respondent adopted child and the universal institution of heirs, petitioner is in effect
not an heir of the testator. He has no legal standing to petition for the probate of the will left by the
deceased and Special Proceedings No. 591 A-CEB must be dismissed.

As a general rule certiorari cannot be a substitute for appeal, except when the questioned order is an
oppressive exercise of j judicial authority (People v. Villanueva, 110 SCRA 465 [1981]; Vda. de Caldito v.
Segundo, 117 SCRA 573 [1982]; Co Chuan Seng v. Court of Appeals, 128 SCRA 308 [1984]; and
Bautista v. Sarmiento, 138 SCRA 587 [1985]). It is axiomatic that the remedies of certiorari and
prohibition are not available where the petitioner has the remedy of appeal or some other plain, speedy
and adequate remedy in the course of law (DD Comendador Construction Corporation v. Sayo (118
SCRA 590 [1982]). They are, however, proper remedies to correct a grave abuse of discretion of the trial
court in not dismissing a case where the dismissal is founded on valid grounds (Vda. de Bacang v. Court
of Appeals, 125 SCRA 137 [1983]).

Special Proceedings No. 591 ACEB is for the probate of a will. As stated by respondent Court, the
general rule is that the probate court's authority is limited only to the extrinsic validity of the will, the due
execution thereof, the testator's testamentary capacity and the compliance with the requisites or
solemnities prescribed by law. The intrinsic validity of the will normally comes only after the Court has
declared that the will has been duly authenticated. Said court at this stage of the proceedings is not called
upon to rule on the intrinsic validity or efficacy of the provisions of the will (Nuguid v. Nuguid, 17 SCRA
449 [1966]; Sumilang v. Ramagosa, supra; Maninang v. Court of Appeals, 114 SCRA 478 [1982];
Cayetano v. Leonides, 129 SCRA 522 [1984]; and Nepomuceno v. Court of Appeals, 139 SCRA 206
[1985]).

The rule, however, is not inflexible and absolute. Under exceptional circumstances, the probate court is
not powerless to do what the situation constrains it to do and pass upon certain provisions of the will
(Nepomuceno v. Court of Appeals, supra). In Nuguid v. Nuguid the oppositors to the probate moved to
dismiss on the ground of absolute preteriton The probate court acting on the motion held that the will in
question was a complete nullity and dismissed the petition without costs. On appeal the Supreme Court
upheld the decision of the probate court, induced by practical considerations. The Court said:

We pause to reflect. If the case were to be remanded for probate of the will, nothing will
be gained. On the contrary, this litigation will be protracted. And for aught that appears in
the record, in the event of probate or if the court rejects the will, probability exists that the
case will come up once again before us on the same issue of the intrinsic validity or
nullity of the will. Result: waste of time, effort, expense, plus added anxiety. These are
the practical considerations that induce us to a belief that we might as well meet head-on
the issue of the validity of the provisions of the will in question. After all there exists a
justiciable controversy crying for solution.

In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the petition by the surviving spouse
was grounded on petitioner's lack of legal capacity to institute the proceedings which was fully
substantiated by the evidence during the hearing held in connection with said motion. The Court upheld
the probate court's order of dismissal.

In Cayetano v. Leonides, supra one of the issues raised in the motion to dismiss the petition deals with
the validity of the provisions of the will. Respondent Judge allowed the probate of the will. The Court held
that as on its face the will appeared to have preterited the petitioner the respondent judge should have
denied its probate outright. Where circumstances demand that intrinsic validity of testamentary provisions
be passed upon even before the extrinsic validity of the will is resolved, the probate court should meet the
issue. (Nepomuceno v. Court of Appeals, supra; Nuguid v. Nuguid, supra).

In the instant case private respondents filed a motion to dismiss the petition in Sp. Proceedings No. 591
ACEB of the Regional Trial Court of Cebu on the following grounds: (1) petitioner has no legal capacity to
institute the proceedings; (2) he is merely a universal heir; and (3) the widow and the adopted daughter
have been preterited (Rollo, p. 158). It was denied by the trial court in an order dated January 21, 1985
for the reason that "the grounds for the motion to dismiss are matters properly to be resolved after a
hearing on the issues in the course of the trial on the merits of the case (Rollo, p. 32). A subsequent
motion for reconsideration was denied by the trial court on February 15, 1985 (Rollo, p. 109).

For private respondents to have tolerated the probate of the will and allowed the case to progress when
on its face the will appears to be intrinsically void as petitioner and his brothers and sisters were instituted
as universal heirs coupled with the obvious fact that one of the private respondents had been preterited
would have been an exercise in futility. It would have meant a waste of time, effort, expense, plus added
futility. The trial court could have denied its probate outright or could have passed upon the intrinsic
validity of the testamentary provisions before the extrinsic validity of the will was resolved (Cayetano v.
Leonides, supra; Nuquid v. Nuguid, supra. The remedies of certiorari and prohibition were properly
availed of by private respondents.

Thus, this Court ruled that where the grounds for dismissal are indubitable, the defendants had the right
to resort to the more speedy, and adequate remedies of certiorari and prohibition to correct a grave abuse
of discretion, amounting to lack of jurisdiction, committed by the trial court in not dismissing the case,
(Vda. de Bacang v. Court of Appeals, supra) and even assuming the existence of the remedy of appeal,
the Court harkens to the rule that in the broader interests of justice, a petition for certiorari may be
entertained, particularly where appeal would not afford speedy and adequate relief. (Maninang Court of
Appeals, supra).

PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and the questioned decision
of respondent Court of Appeals promulgated on August 30, 1985 and its Resolution dated October 23,
1985 are hereby AFFIRMED.

SO ORDERED.

Administration of the estate of Agripino Neri y Chavez. ELEUTERIO NERI, ET AL., petitioners,
vs.
IGNACIA AKUTIN AND HER CHILDREN, respondents.

Ozamiz & Capistrano for petitioners.

Gullas, Leuterio, Tanner & Laput for respondents.

MORAN, J.:

Agripino Neri y Chavez, who died on December 12, 1931, had by his first marriage six children named
Eleuterio, Agripino, Agapito, Getulia, Rosario and Celerina; and by his second marriage with Ignacia
Akutin, five children named Gracia, Godofredo, Violeta, Estela Maria, and Emma. Getulia, daughter in the
first marriage, died on October 2, 1923, that is, a little less than eight years before the death of said
Agripino Neri y Chavez, and was survived by seven children named Remedios, Encarnacion, Carmen,
Trinidad, Luz, Alberto and Minda. In Agripino Neri's testament, which was admitted to probate on March
21, 1932, he willed that his children by the first marriage shall have no longer any participation in his
estate, as they had already received their corresponding shares during his lifetime. At the hearing for the
declaration of heirs, the trial court found, contrary to what the testator had declared in his will, that all his
children by the first and second marriages intestate heirs of the deceased without prejudice to one-half of
the improvements introduced in the properties during the existence of the last conjugal partnership, which
should belong to Ignacia Akutin. The Court of Appeals affirmed the trial court's decision with the
modification that the will was "valid with respect to the two-thirds part which the testator could freely
dispose of. "This judgment of the Court of Appeals is now sought to be reviewed in this petition
for certiorari.

The decisive question here raised is whether, upon the foregoing facts, the omission of the children of the
first marriage annuls the institution of the children of the first marriage as sole heirs of the testator, or
whether the will may be held valid, at least with respect to one-third of the estate which the testator may
dispose of as legacy and to the other one-third which he may bequeath as betterment, to said children of
the second marriage.

The Court of Appeals invoked the provisions of article 851 of the Civil Code, which read in part as follows:
 Disinheritance made without a statement of the cause, or for a cause the truth of which, if
contradicted, is not proven, ... shall annul the institution of the heir in so far as it prejudices the
person disinherited; but the legacies, betterments, and other testamentary dispositions, in so far
as they do no encroach upon the legitime, shall be valid.

The appellate court thus seemed to have rested its judgment upon the impression that the testator had
intended to disinherit, though ineffectively, the children of the first marriage. There is nothing in the will
that supports this conclusion. True, the testator expressly denied them any share in his estate; but the
denial was predicated, not upon the desire to disinherit, but upon the belief, mistaken though it was, that
the children by the first marriage had already received more than their corresponding shares in his
lifetime in the form of advancement. Such belief conclusively negatives all inference as to any intention to
disinherit, unless his statement to that effect is prove to be deliberately fictitious, a fact not found by the
Court of Appeals. The situation contemplated in the above provision is one in which the purpose to
disinherit is clear, but upon a cause not stated or not proved, a situation which does not obtain in the
instant case.

The Court of Appeals quotes Manresa thus:

En el terreno de los principios, la solucion mas justa del problema que hemos hecho notar al
comentar el articulo, seria distinguir el caso en que el heredero omitido viviese al otorgarse el
testamento, siendo conocida su existencia por el testador, de aquel en que, o naciese despues, o
se ignorase su existencia, aplicando en el primer caso la doctrina del articulo 851, y en el
segundo la del 814. (6 Manresa, 354-355.)

But it must be observed that this opinion is founded on mere principles (en el terreno de los principios)
and not on the express provisions of the law. Manresa himself admits that according to law, "no existe
hoy cuestion alguna en esta materia: la pretericion produce siempre los mismos efectos, ya se refiera a
personas vivas al hacer el testamento o nacidas despues. Este ultimo grupo solo puede hacer relacion a
los descendientes legitimos, siempre que ademas tengan derecho a legitima." (6 Manresa, 381.)

Appellants, on the other hand, maintain that the case is one of voluntary preterition of four of the children
by the first marriage, and of involuntary preterition of the children by the deceased Getulia, also of the first
marriage, and is thus governed by the provisions of article 814 of the Civil Code, which read in part as
follows:

The preterition of one or all of the forced heirs in the direct line, whether living at the time of the
execution of the will or born after the death of the testator, shall void the institution of heir; but the
legacies and betterments shall be valid, in so far as they are not inofficious.

Preterition consists in the omission in the testator's will of the forced heirs or anyone of them, either
because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are
expressly disinherited.(Cf. 6 Manresa, 346.) In the instant case, while the children of the first marriage
were mentioned in the will, they were not accorded any share in the heriditary property, without expressly
being disinherited. It is, therefore, a clear case of preterition as contended by appellants. The omission of
the forced heirs or anyone of them, whether voluntary or involuntary, is a preterition if the purpose to
disinherit is not expressly made or is not at least manifest.

Except as to "legacies and betterments" which "shall be valid in so far as they are not inofficious" (art. 814
of the Civil Code), preterition avoids the institution of heirs and gives rise to intestate succession. (Art.
814, Civil Code; Decisions of the Supreme Court of Spain of June 17, 1908 and February 27, 1909.) In
the instant case, no such legacies or betterments have been made by the testator. "Mejoras" or
betterments must be expressly provided, according to articles 825 and 828 of the Civil Code, and where
no express provision therefor is made in the will, the law would presume that the testator had no intention
to that effect. (Cf. 6 Manresa, 479.) In the will here in question, no express betterment is made in favor of
the children by the second marriage; neither is there any legacy expressly made in their behalf consisting
of the third available for free disposal. The whole inheritance is accorded the heirs by the second
marriage upon the mistaken belief that the heirs by the first marriage have already received their shares.
Were it not for this mistake, the testator's intention, as may be clearly inferred from his will, would have
been to divide his property equally among all his children.

Judgment of the Court of Appeals is reversed and that of the trial court affirmed, without prejudice to the
widow's legal usufruct, with costs against respondents.

Avanceña, C.J., Diaz, Laurel and Horrilleno, JJ., concur.