III. HOLOGRAPHIC WILL p.

810-814

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. ...

1
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.

2
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
3
 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
4
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.

Teehankee (Chairman), Melencio-Herrera, Plana, Relova and De la

Fuente, JJ., concur.

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

5
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

6
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.
7
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
8
 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

9
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.

Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ., concur.

Footnotes
1
Penned by Justice Jorge S. Imperial and concurred in by
Justices Jose A.R. Melo and Manuel C. Herrera
2
Article 810 provides: 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.

G.R. No. 106720 September 15, 1994

SPOUSES ROBERTO AND THELMA AJERO, petitioners,

vs.
10
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
11
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 characterof the
testamentary act . . . The will itself shows that the
testatrix even had detailed knowledge of the nature of
12
 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:

13
 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;

14
 (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.

15
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:
16
 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.

17
SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.
#Footnotes

1 Sixteenth Division, composed of Associate Justices Luis L.

Victor (ponente), Ricardo J. Francisco (chairman), and Pacita Cañizares-
Nye.
2 Presided by Judge Filemon H. Mendoza.
3 Rollo, pp. 37-39.
4 Impugned Decision, p. 5; Rollo, p. 46.
5 Pecson vs. Coronel, 45 Phil. 216 (1923); See 3 EDGARDO L. PARAS,
Civil Code of the Philippines Annotated (1989), pp. 145-146.
6 See Montanaño vs. Suesa, 14 Phil. 676 (1909).
7 See Fernando vs. Villalon, 3 Phil. 386 (1904).
8 See Velasco vs. Lopez, 1 Phil. 720, 725 (1903), citing a Decision of the
Supreme Court of Spain, dated April 4, 1895; See also, 3 MANRESA,
Commentarios al Codigo Español (Quinta ed.), p. 483; See further, 3
ARTURO M. TOLENTINO, Commentaries & Jurisprudence on the Civil
Code (1973), p. 107, citing Castan 341, 5 Valverde 82; 3 AMBROSIO
PADILLA, Civil Code Annotated (1987),
pp. 157-158; 2 RAMON C. AQUINO and CAROLINA C. GRIÑO-AQUINO
(1990), p. 42.
9 3 PARAS, op. cit.
10 It must be noted, however, that in Kalaw, this Court laid down an
exception to the general rule, when it invalidated the entire will because
of an unauthenticated erasure made by the testator. In that case, the will
had only one substantial provision. This was altered by substituting the
original heir with another , with such alteration being unauthenticated.
This was altered by substituting the original heir with another, with such
alteration being unauthenticated. This Court held that the whole will was
void "for the simple reason that nothing remains in the Will after (the
provision is invalidated) 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."
11 Nepomuceno vs. Court of Appeals, 139 SCRA 206 (1985); See Nuguid
vs. Nuguid, 17 SCRA 449 (1966); See also Cayetano vs. Leonidas, 129
SCRA 522 (1984).

G.R. No. L-40207 September 28, 1984

ROSA K. KALAW, petitioner,

vs.
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI
of Batangas, Branch VI, Lipa City, and GREGORIO K.
KALAW, respondents.

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
18
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
19
 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
20
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).
21
WHEREFORE, this Petition is hereby dismissed and the Decision of
respondent Judge, dated September 3, 1973, is hereby affirmed in
toto. No costs.

SO ORDERED.

Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.

Relova, J., took no part.

Separate Opinions

TEEHANKEE, J., concurring:

I concur. Rosa, having appealed to this Court on a sole question of

law, is bound by the trial court's factual finding that the peculiar
alterations in the holographic will crossing out Rosa's name and
instead inserting her brother Gregorio's name as sole heir and "sole
executrix" were made by the testatrix in her own handwriting. (I
find it peculiar that the testatrix who was obviously an educated
person would unthinkingly make such crude alterations instead of
consulting her lawyer and writing an entirely new holographic wig
in order to avoid any doubts as to her change of heir. It should be
noted that the first alteration crossing out "sister Rosa K. Kalaw"
and inserting "brother Gregorio Kalaw" as sole heir is not even
initialed by the testatrix. Only the second alteration crossing out
"sister Rosa K. Kalaw" and inserting "brother Gregorio Kalaw" as
"sole executrix" is initialed.) Probate of the radically altered will
replacing Gregorio for Rosa as sole heir is properly denied, since
the same was not duly authenticated by the full signature of the
executrix as mandatorily required by Article 814 of the Civil Code.
The original unaltered will naming Rosa as sole heir cannot,
however, be given effect in view of the trial court's factual finding
that the testatrix had by her own handwriting substituted Gregorio
for Rosa, so that there is no longer any will naming Rosa as sole
heir. The net result is that the testatrix left no valid will and both
Rosa and Gregorio as her next of kill succeed to her intestate
estate.

Separate Opinions

TEEHANKEE, J., concurring:

I concur. Rosa, having appealed to this Court on a sole question of

law, is bound by the trial court's factual finding that the peculiar
22
alterations in the holographic will crossing out Rosa's name and
instead inserting her brother Gregorio's name as sole heir and "sole
executrix" were made by the testatrix in her own handwriting. (I
find it peculiar that the testatrix who was obviously an educated
person would unthinkingly make such crude alterations instead of
consulting her lawyer and writing an entirely new holographic wig
in order to avoid any doubts as to her change of heir. It should be
noted that the first alteration crossing out "sister Rosa K. Kalaw"
and inserting "brother Gregorio Kalaw" as sole heir is not even
initialed by the testatrix. Only the second alteration crossing out
"sister Rosa K. Kalaw" and inserting "brother Gregorio Kalaw" as
"sole executrix" is initialed.) Probate of the radically altered will
replacing Gregorio for Rosa as sole heir is properly denied, since
the same was not duly authenticated by the full signature of the
executrix as mandatorily required by Article 814 of the Civil Code.
The original unaltered will naming Rosa as sole heir cannot,
however, be given effect in view of the trial court's factual finding
that the testatrix had by her own handwriting substituted Gregorio
for Rosa, so that there is no longer any will naming Rosa as sole
heir. The net result is that the testatrix left no valid will and both
Rosa and Gregorio as her next of kill succeed to her intestate
estate.

Footnotes

1 Velasco vs. Lopez, 1 Phil. 720, 725 (1903), citing a

Decision of the Supreme Court of Spain of April 4, 1895.

2 Comentarios al Codigo Civil Español, Quinta edicion,

Tomo 5, Lib. III — Tit. III — Cap. I — Art. 688; pag. 483.

3 Ibid.

IV. JOINT WILL Ar.t 818

G.R. No. 76714 June 2, 1994

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.:

23
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.

24
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

25
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
26
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
27
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
28
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).
29
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

30
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");

31
 (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]).

32
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
33
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.

Davide, Jr., Bellosillo and Kapunan, JJ., concur.

Cruz, J., is on leave.

34
 V. INCORPORATION BY REFERENCE: Art. 827

G.R. No. 17857 June 12, 1922

In re will of Josefa Zalamea y Abella, deceased.

PEDRO UNSON, petitioner-appellee,
vs.
ANTONIO ABELLA, ET AL., opponents-appellants.

Crispin Oben for appellants.

Pedro Guevarra and Carlos Ledesma for appellee.

VILLAMOR, J.:

On July 19, 1918, Doña 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 presently 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 provinces 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.

35
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 careful 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 Avaya 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 appellants 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.
36
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 to stand in the record, let him prove
them." The court a quo ruled, saying, "there is no need."

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

In the case of Avera vs. Garcia and Rodriguez (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 vs. Delfinado (34 Phil., 291), this court declared after an
elaborate examination of the American and English authorities that
when a contest is instituted, all of the attesting witnesses must be
examined, if alive and within reach of the process of the court.

In the present case no explanation was made at the trial as to

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

37
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 t he 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 tribunals 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 the 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
38
 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 instead 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 vs. Delfinado, supra,

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

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 vs.
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
39
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:

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.

And the attestation clause is as follows:

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 Doña Josefa Zalamea y Abella,
was read to Doña Josefa Zalamea y Abella, and the latter
affixed her name to 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.

(Sgd.) GONZALO ABAYA,

EUGENIO ZALAMEA,
PEDRO DE JESUS.

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 vs.
Roque (p. 378, ante), recently decided by this court. In that case
40
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 the 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 vs. Abangan (40 Phil., 476), might
as well be repeated:

"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 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 emission 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
41
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 vs. Garcia and Rodriguez (42 Phi., 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 execution for wills must be fully complied with. The
same doctrine is also deducible from cases heretofore decided
by this court."

"Still some details at time 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 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 Craig vs. Tatlonghari
(G. R. 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 his object may be
attained by writing one, two, three, etc., as well as by writing A, B,
C, etc.

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 vs. Abangan, and followed in Aldava
vs. Roque, with regard to the appreciation of the solemnities of a
will, we find that the judgement appealed from should be, as is
hereby, affirmed with the costs against the appellants. So ordered.

Araullo, C.J., Malcolm, Avanceña, Ostrand, Johns and Romualdez,

JJ., concur.

42
 VI. REVOCATION OF WILLS AND
TESTAMENTARY DISPOSITIONS

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.

43
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
44
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 theexpress 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
45
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
46
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.

Yap (Chairman), Melencio-Herrera, and Paras JJ., concur.

Padilla, J., took no part.

47
 Footnotes
1 Constancio Maloto, et al. vs. Hon. Emigdio V. Nietes, etc., et al.,
May 14, 1969.
2 G.R. No. L-32328.
3 G.R. No. L-30479, supra.
4 Vda. de Precilla vs. Narciso, No. L-27200, August 18, 1972, 46
SCRA 538, 565-566, quoted in: Maninang vs. Court of Appeals, No.
L-57848, June 19, 1982, 114 SCRA 78.
5 Heirs of Matilde Cenizal Arguzon vs. Miclat, No. L-61049, April
15, 1985, 135 SCRA 678; Martinez vs. Court of Appeals, No. L-
41425, November 11, 1985,139 SCRA 558.
6 See Circa Nila Development Corporation, et. al. vs. Hon.
Salvador J. Baylen, etc., et al., G.R. Nos. 69757-58, January 29,
1988.
7 Rollo, 75.

G.R. No. L-2538 September 21, 1951

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
48
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.

49
 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
50
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.
51
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,
52
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
53
 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

54
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
55
 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
56
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

Paras, C.J. Feria, Pablo Bengzon, Tuason and Jugo JJ., concur.

VII. ALLOWANCE AND DISALLOWANCE OF

WILLS

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.

57
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
58
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 betterments 4 shall be
valid, in so far as they are not inofficious. ...

59
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

60
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
61
 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
12
procedimiento lo que el legislador quiere establecer.

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". 15From 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
62
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
63
 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.

Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal,

Bengzon, J.P. and Zaldivar, JJ., concur.

64
[G.R. No. 110427. February 24, 1997.]

The Incompetent, CARMEN CAÑIZA, represented by her

legal guardian, AMPARO EVANGELISTA, Petitioner, v.
COURT OF APPEALS (SPECIAL FIRST DIVISION), PEDRO
ESTRADA and his wife, LEONORA ESTRADA, Respondents.

Priscilla A. Villacorta for Petitioner.

Montilla Law Office for Private Respondents.

SYLLABUS

1. REMEDIAL LAW; JURISDICTION; DETERMINED BY THE

ALLEGATIONS IN THE COMPLAINT. — 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. An inquiry into the averments of the
amended complaint in the Court of origin is thus in order.

2. ID.; PROVISIONAL REMEDIES; ACTION FOR UNLAWFUL

DETAINER; IT IS SUFFICIENT TO ALLEGE THAT THE
DEFENDANT IS UNLAWFULLY WITHHOLDING POSSESSION
FROM THE PLAINTIFF. — It is settled that in an action for
unlawful detainer, to allege that the defendant is unlawfully
withholding possession from the plaintiff is deemed sufficient, and
a complaint for unlawful detainer is sufficient if it alleges that the
withholding of possession or the refusal to vacate is unlawful
without necessarily employing the terminology of the law.

3. ID.; ID.; ID.; PROPER WHEN A PERSON WHO OCCUPIES, OUT

OF GENEROSITY, THE LAND OF ANOTHER AND FAILS TO
VACATE THE SAME UPON DEMAND BY THE OWNER; CASE AT
BAR. — More than once has this Court adjudged that a person who
occupies the land of another at the latter’s tolerance or permission
without any contract between them is necessarily bound by an
implied promise that he will vacate upon demand, failing which a
summary action for ejectment is the proper remedy against him,
The situation is not much different from that of a tenant whose
65
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.
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. Thus, in Asset Privatization Trust v. Court of
Appeals, 229 SCRA 627, 636 [1994] 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 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

4. CIVIL LAW; SUCCESSION; A WILL HAS NO EFFECT

WHATEVER AND NO RIGHT CAN BE CLAIMED THEREUNDER
UNTIL IT IS ADMITTED TO PROBATE. — A will is essentially
ambulatory; at any time prior to the testator’s death, it may be
changed or revoked; 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, CIVIL CODE). An owner’s intention to confer title
on 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.

5. REMEDIAL LAW; SPECIAL PROCEEDINGS; GUARDIANSHIP;

DUTIES OF THE GUARDIAN; CASE AT BAR. — Amparo
Evangelista was appointed by a competent court the general
guardian of both the person and the estate of her aunt, Carmen
Cañiza. Her Letters of Guardianship dated December 19, 1989
clearly installed her as the "guardian over the person and
properties of the incompetent CARMEN CAÑIZA with full authority
to take possession of the property of said incompetent in any
province or provinces in which it may be situated and to perform all
other acts necessary for the management of her properties . . ." By
that appointment, it became Evangelista’s duty to care for her
aunt’s person, to attend to her physical and spiritual needs, to
66
assure her well-being, with right to custody of her person in
preference to relatives and friends. It also became her right and
duty to get possession of, and exercise control over, Cañiza’s
property, both real and personal, it being recognized principle that
the ward has no right to possession or control of his property
during his incompetency. That right to manage the ward’s estate
carried with it right to take possession thereof and recover it from
anyone who retains it and bring and defend such actions as may be
needful for this purpose. Actually, in bringing the action of
desahucio, Evangelista was merely discharging the duty to attend
to "the comfortable and suitable maintenance of the ward"
explicitly imposed on her by Section 4, Rule 96 of the Rules of
Court.

6. ID.; PROVISIONAL REMEDIES; EJECTMENT CASE; EFFECT OF

THE DEATH OF A PARTY; CASE AT BAR. — While it is indeed well-
established rule that the relationship of guardian and ward is
necessarily terminated by the death of either the guardian or the
ward, the rule affords no advantage to the Estradas. Amparo
Evangelista, as niece of Carmen Cañiza, is one of the latter’s only
two (2) surviving heirs, the other being Cañiza’s nephew, Ramon C.
Nevado. On their motion and by resolution of this Court 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. 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. 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.

DECISION

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
judgment 1 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
67
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 Complaint 5 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 first letter of demand dated February 3,
1990."cralaw virtua1aw library

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." chanrobles virtual lawlibrary

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
68
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.

69
 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;

x x x

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

70
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."cralaw virtua1aw library

Its prayer 21 is quoted below:jgc:chanr

obles.com.ph
"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:chanrob1es virtual 1aw library

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. 61 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."crala

virtua1aw library
In essence, the amended complaint states:chanrob1es virtual 1aw
library

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;

71
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."cralaw virtua1aw library

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 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.
72
26 Thus, in Asset Privatization Trust v. 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."cr

alaw virtua1aw library

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

73
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 CAÑIZA with full authority
to take possession of the property of said incompetent in any
province or provinces in which it may be situated and to perform all
other acts necessary for the management of her properties . . ." 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

74
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.:jgc:chanrobles.com.ph

"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."cra

law virtua1aw library

Finally, it may be pointed out in relation to the Estradas’ 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, Amparo 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
75
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.chanroblesvirtuallawlibrary:red

SO ORDERED.

Davide, Jr., Melo, Francisco and Panganiban, JJ., concur

Endnotes:

1. Petition, Annex "D", Rollo, pp. 41-43.

2. Presided over by Judge Delilah Vidallon-Magtolis.
3. Docketed as SP. PROC. No. Q-89-2603 of Branch 107, entitled "Petition for
Guardianship of the Person and Estate of the Incompetent Carmen Cañiza,
Amparo A. Evangelists Petitioner."cr
4. Docketed as Civil Case No. 3410 for Ejectment with Damages.
5. Petition, Annex "K", Rollo, pp. 55-59.
6. Petition, Annex "B," Rollo, pp. 33-35.
7. Footnote reference and footnote text copied from the Supreme Court Advance
sheets
8. Docketed as Civil Case No. Q-92-12554.
9. Presided Over by Judge Lucas P. Bersamin.
10. Rollo, pp. 36-40.
11. Rollo, pp. 27-32.
12. Special First Division composed of Vailoces, J., ponente, with Lantin and
Mabutas, Jr., JJ., concurring.
13. CA Decision, p. 4, Rollo, p. 30.
14. Petition, p. 11, Rollo p. 18.

76
15. Rollo, pp. 97-112.
16. Manifestation dated March 25, 1994.
17. Second Division Resolution dated June 20, 1994.
18. Sumulong v. Court of Appeals, 232 SCRA 372 [1994], citing Abrin v. Campos,
203 SCRA 420 [1991];
Mariategui v. Court of Appeals, 205 SCRA 337 [1992]; Abad v. Court of First
Instance, 206 SCRA 567
[1992]; Del Castillo v. Aguinaldo, 212 SCRA 169 [1992]; Santos v. Court of
Appeals, 214 SCRA 162
[1992]; Ganadin v. Ramos, 99 SCRA 6132 (1980); Ramirez v. Chit, 21 SCRA 1364
[1967]; Mediran v.
Villanueva, 37 Phil. 752 [1918].
19. Sarmiento v. Court of Appeals, 150 SCRA 108 [1995].
20. Rollo, pp. 56-57, emphasis in original text.
21. Rollo, pp. 57-58.
22. Sumulong v. Court of Appeals, 232 SCRA 372 [1994], citing Maddamu v. Judge
of Municipal Court of Manila, 74 Phil. 230 [1943].
23. Sumulong v. Court of Appeals, supra, citing Co Tiamco v. Diaz, 75 Phil. 672
[1946]; Valderama Lumber Manufacturer’s Co. v. L.S. Sarmiento Co., 5 SCRA 287
[1962, Pangilinan v. Aguilar, 43 SCRA 136 [1972].
24. Yu v. de Lara, 6 SCRA 785 [1962]; Pangilinan v. Aguilar, 43 SCRA 136 [1972],
Dakudao v. Consolacion, 122 SCRA 877 [1983]; Peran v. Presiding Judge, Br. II,
CFI, Sorsogon, 125 SCRA 78 [1983]; Banco de Oro Savings and Mortgage Bank v.
Court of Appeals, 182 SCRA 464 [1990].
25. Vda. de Catchuela v. Francisco, 98 SCRA 172 [1980] citing Calubayan v.
Pascual, 21 SCRA 146, 148 [1967].
26. Odsigue v. Court of Appeals, 233 SCRA 626 [1994].
27. 229 SCRA 627, 636 [1994].
28. Sarmiento v. Court of Appeals, 250 SCRA 108 [1995] citing Sarona, et al v.
Villegas, et al, 22 SCRA 1257 [1968].
29. Peñas, Jr. v. Court of Appeals, 233 SCRA 744 [1994] citing Racaza v. Susana
Realty, Inc. 18 SCRA 1172 [1966].
30. ART. 828, Civil Code.
31. ART. 838, Civil Code.
32. Petition, Annex "E", Rollo, p. 44
33. Emphasis supplied.
34. Francisco, The Revised Rules of Court in the Philippines, 1970 Ed., Vol. V-B, p.
457, citing Ex-parte
Fletcher, 142 So. 30; 39 C.J.S. 86.
35. Francisco, The Revised Rules of Court in the Philippines, 1970 Ed. Vol. V-B, p.
458, citing 39 C.J.S.
114-115.
36. Castillo v. Bustamante, 64 Phil. 839 [1937], cited in Moran, Comments on the
Rules of Court, Vol. 3, 1980 ed., p. 570.
37. Conchita Juachon v. Felix Manalo, G.R. No. L-42, 77 Phil. 1092, [January 20,
1947 unreported], cited in Moran, Comments on the Rules of court, 1979 Ed.,
Volume I, p. 176.
38. Sec. 3, R.A. No. 7691, amending Sec. 33 of B.P. 129; SEE Wilmon Auto Supply
Corp. v. Court of Appeals, 208 SCRA 108 [1992].
39. Francisco, The Revised Rules of Court in the Phils., Vol. V-B, 1970 Ed., citing
25 Am. Jur. 37.
40. Second Division; SEE footnote 17, supra.
41. Emphasis supplied.
42. Vda. de Salazar v. Court of Appeals, Et Al., 250 SCRA 305 (Nov. 23, 1995)
citing Vda. de Haberes v. Court of Appeals, 104 SCRA 534 [1981]; Republic v.
Bagtas, 6 SCRA 242 [1962]; Florendo Jr. v. Coloma, 129 SCRA 304 [1984].

G.R. No. 157451 December 16, 2005

77
LETICIA VALMONTE ORTEGA, Petitioner,
vs.
JOSEFINA C. VALMONTE, Respondent.

DECISION

PANGANIBAN, J.:

The law favors the probate of a will. Upon those who oppose it
rests the burden of showing why it should not be allowed. In the
present case, petitioner has failed to discharge this burden
satisfactorily. For this reason, the Court cannot attribute any
reversible error on the part of the appellate tribunal that allowed
the probate of the will.

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 Decision2 and the March 7, 2003 Resolution3 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.

78
"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 Manila, 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 Manila, described and covered by TCT
No. 123468 of the Register of Deeds of Pasig, Metro-Manila
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 Manila
also covered by Tax Declaration No. A-025-00482, Makati, Metro-
Manila, 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;

79
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 Manila 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
80
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 Manila
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
81
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.
82
 "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;

83
(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

84
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.

85
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?
86
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."
87
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.

ARTEMIO V. PANGANIBAN

Associate Justice

Chairman, Third Division

W E C O N C U R:

ANGELINA SANDOVAL-GUTIERREZ, RENATO C. CORONA

88
Associate Justice Associate Justice

CONCHITA CARPIO MORALES, CANCIO C. GARCIA

Associate Justice Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in

consultation before the case was assigned to the writer of the
opinion of the Court’s Division.

ARTEMIO V. PANGANIBAN
Associate Justice
Chairman, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the

Division Chairman’s Attestation, I certify that the conclusions in the
above Decision were reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.

HILARIO G. DAVIDE, JR.

Chief Justice

Footnotes
1
Rollo, pp. 9-25.
2
Annex "A" of Petition; id., pp. 26-43. Penned by Justice Roberto A.
Barrios (Fourteenth Division chair) and concurred in by Justices
Perlita J. Tria-Tirona and Edgardo F. Sundiam (members).
3
Annex "C" of Petition; id., pp. 54-56.
4
CA Decision, p. 18; rollo, p. 43.
5
Id., pp. 3-8 & 28-33.
6
Id., pp. 15 & 40.
7
The case was deemed submitted for decision on July 14, 2004,
upon this Court’s receipt of petitioner’s Memorandum, signed by
Atty. Manuel T. de Guia. Respondent’s Memorandum, filed on April
19, 2004, was signed by Atty. Benigno P. Pulmano.
8
Petitioner’s Memorandum, p. 6; rollo, p. 331. Original in
uppercase.
9
Heirs of Saludares v. CA, 420 SCRA 51, January 16, 2004; Heirs of
Celestial v. Celestial, 408 SCRA 291, August 5, 2003; Garrido v.
CA, 421 Phil. 872, November 22, 2001; Meralco v. CA, 413 Phil.
338, July 11, 2001.
10
Leviste v. CA, 169 SCRA 580, January 30, 1989.
11
Petitioner’s Memorandum, p. 19; rollo, p. 344.
12
Id., pp. 14 & 339.
13
Tolentino, Commentaries and Jurisprudence on the Civil Code of
the Philippines, Vol. III (1992), p. 166.
14
Pecson v. Coronel, 45 Phil. 216, October 11, 1923.
15
Cuyugan v. Baron, 62 Phil. 859, January 16, 1936.

89
 16
Heirs of the Late Matilde Montinola-Sanson v. CA, 158 SCRA 247,
February 26, 1988; Pascual v. dela Cruz, 138 Phil. 446, May 30,
196; Rodriguez v. CA, 137 Phil. 371, March 28, 1969; In the Matter
of the Testate Estate of the Juana Juan Vda. De Molo, 100 Phil. 344,
November 26, 1956; Barrera v. Tampoco, 94 Phil. 346, February
17, 1954; Pecson v. Coronel, 45 Phil. 216, October 11, 1923.
17
Petitioner’s Memorandum, p. 18; rollo, p. 343.
18
CA Decision, p. 11; rollo, p. 36.
19
Article 805, Civil Code.
20
Article 806, id.
21
CA Decision, p. 9; rollo, p. 34.
22
Id., pp. 9-11 & 34-36.
23
Gonzales v. CA, 90 SCRA 183, May 25, 1979; Vda.de Ramos v CA,
81 SCRA 393, January 31, 1978; Roxas v. Roxas, 87 Phil. 692,
December 1, 1950.
24
Gonzales v. CA, supra; Galvez v. Galvez, 26 Phil. 243, December
5, 1913.
25
92 SCRA 332, July 30, 1979 (citing Bugnao v. Ubag, 14 Phil. 163,
September 18, 1909).
26
Id., p. 363, per Guerrero, J.

VIII. INSTITUTION OF HEIRS

G.R. No. L-20374 October 11, 1923

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.

90
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

91
 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.

92
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;

93
 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.

94
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

95
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

96
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

97
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
98
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.

99
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
100
 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
101
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.

102
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.

103
Araullo, C.J., Johnson, Street, Malcolm, Avanceña, Villamor and
Johns, JJ., concur.

VIX. PRETERITION

G.R. No. 72706 October 27, 1987

CONSTANTINO C. ACAIN, petitioner,

vs.
HON. INTERMEDIATE APPELLATE COURT (Third Special
104
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.
105
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
106
 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
107
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
108
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
109
 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.

110
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.

Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz,

Feliciano, Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ.,
concur.

Separate Opinions

MELENCIO-HERRERA, J., concurring:

I concur in the result on the basic proposition that preterition in

this case was by mistake or inadvertence.

To my mind, an important distinction has to be made as to whether

the omission of a forced heir in the will of a testator is by mistake
or inadvertence, or voluntary or intentional. If by mistake or
inadvertence, there is true preterirton and total intestacy results.
The reason for this is the "inability to determine how the testator
would have distributed his estate if none of the heirs had been
omitted or forgotten (An Outline of Civil Law, J.B.L. Reyes and R.C.
Puno, Vol. III, p. 54).

The requisites of preterition are:

1. The heir omitted is a forced heir (in the direct line);

2. The ommission is by mistake or thru an oversight.

3. The omission is complete so that the forced heir

received nothing in the will. (111 Padilla, Civil Code
111
 Annotated, 1973 Edition, pp. 224-225) (Parenthetical
addendum supplied).

On the other hand, if the omission is intentional, the effect would

be a defective disinheritance covered by Article 918 of the Civil
Code in which case the institution of heir is not wholly void but only
insofar as it prejudices the legitime of the person disinherited.
Stated otherwise. the nullity is partial unlike in true preterition
where the nullity is total.

Pretention is presumed to be only an involuntary

omission; that is, that if the testator had known of the
existence of the compulsory heir at the time of the
execution of the will, he would have instituted such heir.
On the other hand, if the testator attempts to disinherit a
compulsory heir, the presumption of the law is that he
wants such heir to receive as little as possible from his
estate. (III Tolentino, Civil Code, 1973 Edition, pp. 174-
175).

In the case at bar, there seems to have been mistake or in

advertence in the omission of the adopted daughter, hence, my
concurrence in the result that total intestacy ensued.

Separate Opinions

MELENCIO-HERRERA, J., concurring:

I concur in the result on the basic proposition that preterition in

this case was by mistake or inadvertence.

To my mind, an important distinction has to be made as to whether

the omission of a forced heir in the will of a testator is by mistake
or inadvertence, or voluntary or intentional. If by mistake or
inadvertence, there is true preterirton and total intestacy results.
The reason for this is the "inability to determine how the testator
would have distributed his estate if none of the heirs had been
omitted or forgotten (An Outline of Civil Law, J.B.L. Reyes and R.C.
Puno, Vol. III, p. 54).

The requisites of preterition are:

1. The heir omitted is a forced heir (in the direct line);

2. The ommission is by mistake or thru an oversight.

112
 3. The omission is complete so that the forced heir
received nothing in the will. (111 Padilla, Civil Code
Annotated, 1973 Edition, pp. 224-225) (Parenthetical
addendum supplied).

On the other hand, if the omission is intentional, the effect would

be a defective disinheritance covered by Article 918 of the Civil
Code in which case the institution of heir is not wholly void but only
insofar as it prejudices the legitime of the person disinherited.
Stated otherwise. the nullity is partial unlike in true preterition
where the nullity is total.

Pretention is presumed to be only an involuntary

omission; that is, that if the testator had known of the
existence of the compulsory heir at the time of the
execution of the will, he would have instituted such heir.
On the other hand, if the testator attempts to disinherit a
compulsory heir, the presumption of the law is that he
wants such heir to receive as little as possible from his
estate. (III Tolentino, Civil Code, 1973 Edition, pp. 174-
175).

In the case at bar, there seems to have been mistake or in

advertence in the omission of the adopted daughter, hence, my
concurrence in the result that total intestacy ensued.

Footnotes

* Penned by Justice Jose A. R. Melo and concurred in by

Justices Milagros A. German and Nathanael P. De Pano,
Jr.

G.R. No. 72706 October 27, 1987

CONSTANTINO C. ACAIN, petitioner,

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

113
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.

114
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
115
 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
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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
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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
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 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.

119
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.

Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz,

Feliciano, Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ.,
concur.

Separate Opinions

MELENCIO-HERRERA, J., concurring:

I concur in the result on the basic proposition that preterition in

this case was by mistake or inadvertence.

To my mind, an important distinction has to be made as to whether

the omission of a forced heir in the will of a testator is by mistake
or inadvertence, or voluntary or intentional. If by mistake or
inadvertence, there is true preterirton and total intestacy results.
The reason for this is the "inability to determine how the testator
would have distributed his estate if none of the heirs had been
omitted or forgotten (An Outline of Civil Law, J.B.L. Reyes and R.C.
Puno, Vol. III, p. 54).

The requisites of preterition are:

1. The heir omitted is a forced heir (in the direct line);

2. The ommission is by mistake or thru an oversight.

3. The omission is complete so that the forced heir

received nothing in the will. (111 Padilla, Civil Code
120
 Annotated, 1973 Edition, pp. 224-225) (Parenthetical
addendum supplied).

On the other hand, if the omission is intentional, the effect would

be a defective disinheritance covered by Article 918 of the Civil
Code in which case the institution of heir is not wholly void but only
insofar as it prejudices the legitime of the person disinherited.
Stated otherwise. the nullity is partial unlike in true preterition
where the nullity is total.

Pretention is presumed to be only an involuntary

omission; that is, that if the testator had known of the
existence of the compulsory heir at the time of the
execution of the will, he would have instituted such heir.
On the other hand, if the testator attempts to disinherit a
compulsory heir, the presumption of the law is that he
wants such heir to receive as little as possible from his
estate. (III Tolentino, Civil Code, 1973 Edition, pp. 174-
175).

In the case at bar, there seems to have been mistake or in

advertence in the omission of the adopted daughter, hence, my
concurrence in the result that total intestacy ensued.

Separate Opinions

MELENCIO-HERRERA, J., concurring:

I concur in the result on the basic proposition that preterition in

this case was by mistake or inadvertence.

To my mind, an important distinction has to be made as to whether

the omission of a forced heir in the will of a testator is by mistake
or inadvertence, or voluntary or intentional. If by mistake or
inadvertence, there is true preterirton and total intestacy results.
The reason for this is the "inability to determine how the testator
would have distributed his estate if none of the heirs had been
omitted or forgotten (An Outline of Civil Law, J.B.L. Reyes and R.C.
Puno, Vol. III, p. 54).

The requisites of preterition are:

1. The heir omitted is a forced heir (in the direct line);

2. The ommission is by mistake or thru an oversight.

121
 3. The omission is complete so that the forced heir
received nothing in the will. (111 Padilla, Civil Code
Annotated, 1973 Edition, pp. 224-225) (Parenthetical
addendum supplied).

On the other hand, if the omission is intentional, the effect would

be a defective disinheritance covered by Article 918 of the Civil
Code in which case the institution of heir is not wholly void but only
insofar as it prejudices the legitime of the person disinherited.
Stated otherwise. the nullity is partial unlike in true preterition
where the nullity is total.

Pretention is presumed to be only an involuntary

omission; that is, that if the testator had known of the
existence of the compulsory heir at the time of the
execution of the will, he would have instituted such heir.
On the other hand, if the testator attempts to disinherit a
compulsory heir, the presumption of the law is that he
wants such heir to receive as little as possible from his
estate. (III Tolentino, Civil Code, 1973 Edition, pp. 174-
175).

In the case at bar, there seems to have been mistake or in

advertence in the omission of the adopted daughter, hence, my
concurrence in the result that total intestacy ensued.

Footnotes

* Penned by Justice Jose A. R. Melo and concurred in by

Justices Milagros A. German and Nathanael P. De Pano,
Jr.

122