Sei sulla pagina 1di 47

MARIA USON, plaintiff-appellee,

vs.
MARIA DEL ROSARIO, CONCEPCION NEBREDA, CONRADO NEBREDA,
DOMINADOR NEBREDA, AND FAUSTINO NEBREDA, Jr., defendantsappellants.

This is an action for recovery of the ownership and possession of five (5) parcels
of land situated in the Municipality of Labrador, Province of Pangasinan, filed by
Maria Uson against Maria del Rosario and her four children named Concepcion,
Conrado, Dominador, and Faustino, surnamed Nebreda, who are all of minor age,
before the Court of First Instance of Pangasinan.
Maria Uson was the lawful wife of Faustino Nebreda who upon his death in 1945
left the lands involved in this litigation. Faustino Nebreda left no other heir except
his widow Maria Uson. However, plaintiff claims that when Faustino Nebreda died
in 1945, his common-law wife Maria del Rosario took possession illegally of said
lands thus depriving her of their possession and enjoyment.
Defendants in their answer set up as special defense that on February 21, 1931,
Maria Uson and her husband, the late Faustino Nebreda, executed a public
document whereby they agreed to separate as husband and wife and, in
consideration of their separation, Maria Uson was given a parcel of land by way of
alimony and in return she renounced her right to inherit any other property that
may be left by her husband upon his death (Exhibit 1).
After trial, at which both parties presented their respective evidence, the court
rendered decision ordering the defendants to restore to the plaintiff the ownership
and possession of the lands in dispute without special pronouncement as to costs.
Defendants interposed the present appeal.
There is no dispute that Maria Uson, plaintiff-appellee, is the lawful wife of
Faustino Nebreda, former owner of the five parcels of lands litigated in the present
case. There is likewise no dispute that Maria del Rosario, one of the defendantsappellants, was merely a common-law wife of the late Faustino Nebreda with
whom she had four illegitimate children, her now co-defendants. It likewise
appears that Faustino Nebreda died in 1945 much prior to the effectivity of the
new Civil Code. With this background, it is evident that when Faustino Nebreda
died in 1945 the five parcels of land he was seized of at the time passed from the
moment of his death to his only heir, his widow Maria Uson (Article 657, old Civil
Code).As this Court aptly said, "The property belongs to the heirs at the moment

of the death of the ancestor as completely as if the ancestor had executed and
delivered to them a deed for the same before his death" (Ilustre vs. Alaras
Frondosa, 17 Phil., 321). From that moment, therefore, the rights of inheritance of
Maria Uson over the lands in question became vested.
The claim of the defendants that Maria Uson had relinquished her right over the
lands in question because she expressly renounced to inherit any future property
that her husband may acquire and leave upon his death in the deed of separation
they had entered into on February 21, 1931, cannot be entertained for the simple
reason that future inheritance cannot be the subject of a contract nor can it be
renounced (1 Manresa, 123, sixth edition; Tolentino on Civil Code, p. 12; Osorio
vs. Osorio and Ynchausti Steamship Co., 41 Phil., 531).
But defendants contend that, while it is true that the four minor defendants are
illegitimate children of the late Faustino Nebreda and under the old Civil Code are
not entitled to any successional rights, however, under the new Civil Code which
became in force in June, 1950, they are given the status and rights of natural
children and are entitled to the successional rights which the law accords to the
latter (article 2264 and article 287, new Civil Code), and because these
successional rights were declared for the first time in the new code, they shall be
given retroactive effect even though the event which gave rise to them may have
occurred under the prior legislation (Article 2253, new Civil Code).
There is no merit in this claim. Article 2253 above referred to provides indeed that
rights which are declared for the first time shall have retroactive effect even though
the event which gave rise to them may have occurred under the former legislation,
but this is so only when the new rights do not prejudice any vested or acquired
right of the same origin. Thus, said article provides that "if a right should be
declared for the first time in this Code, it shall be effective at once, even though
the act or event which gives rise thereto may have been done or may have
occurred under the prior legislation, provided said new right does not prejudice or
impair any vested or acquired right, of the same origin." As already stated in the
early part of this decision, the right of ownership of Maria Uson over the lands in
question became vested in 1945 upon the death of her late husband and this is so
because of the imperative provision of the law which commands that the rights to
succession are transmitted from the moment of death (Article 657, old Civil Code).
The new right recognized by the new Civil Code in favor of the illegitimate children
of the deceased cannot, therefore, be asserted to the impairment of the vested
right of Maria Uson over the lands in dispute.
As regards the claim that Maria Uson, while her deceased husband was lying in
state, in a gesture of pity or compassion, agreed to assign the lands in question to

the minor children for the reason that they were acquired while the deceased was
living with their mother and Maria Uson wanted to assuage somewhat the wrong
she has done to them, this much can be said; apart from the fact that this claim is
disputed, we are of the opinion that said assignment, if any, partakes of the nature
of a donation of real property, inasmuch as it involves no material consideration,
and in order that it may be valid it shall be made in a public document and must be
accepted either in the same document or in a separate one (Article 633, old Civil
Code). Inasmuch as this essential formality has not been followed, it results that
the alleged assignment or donation has no valid effect.
WHEREFORE, the decision appealed from is affirmed, without costs.

TESTATE ESTATE OF JOSEFA TANGCO, JOSE DE BORJA, administratorappellee; JOSE DE BORJA, as administrator, CAYETANO DE BORJA,
MATILDE DE BORJA and CRISANTO DE BORJA (deceased) as Children of
Josefa Tangco, appellees,
vs.
TASIANA VDA. DE DE BORJA, Special Administratrix of the Testate Estate of
Francisco de Borja, appellant.
Of these cases, the first, numbered L-28040 is an appeal by Tasiana Ongsingco
Vda. de de Borja, special administratrix of the testate estate of Francisco de Borja,
1
from the approval of a compromise agreement by the Court of First Instance of
Rizal, Branch I, in its Special Proceeding No. R-7866, entitled, "Testate Estate of
Josefa Tangco, Jose de Borja, Administrator".
Case No. L-28568 is an appeal by administrator Jose Borja from the disapproval
of the same compromise agreement by the Court of First Instance of Nueva Ecija,
Branch II, in its Special Proceeding No. 832, entitled, "Testate Estate of Francisco
de Borja, Tasiana O. Vda. de de Borja, Special Administratrix".
And Case No. L-28611 is an appeal by administrator Jose de Borja from the
decision of the Court of First Instance of Rizal, Branch X, in its Civil Case No.
7452, declaring the Hacienda Jalajala Poblacion, which is the main object of the
aforesaid compromise agreement, as the separate and exclusive property of the
late Francisco de Borja and not a conjugal asset of the community with his first
wife, Josefa Tangco, and that said hacienda pertains exclusively to his testate
estate, which is under administrator in Special Proceeding No. 832 of the Court of
First Instance of Nueva Ecija, Branch II.

It is uncontested that Francisco de Borja, upon the death of his wife Josefa Tangco
on 6 October 1940, filed a petition for the probate of her will which was docketed
as Special Proceeding No. R-7866 of the Court of First Instance of Rizal, Branch I.
The will was probated on 2 April 1941. In 1946, Francisco de Borja was appointed
executor and administrator: in 1952, their son, Jose de Borja, was appointed coadministrator. When Francisco died, on 14 April 1954, Jose became the sole
administrator of the testate estate of his mother, Josefa Tangco. While a widower
Francisco de Borja allegedly took unto himself a second wife, Tasiana Ongsingco.
Upon Francisco's death, Tasiana instituted testate proceedings in the Court of
First Instance of Nueva Ecija, where, in 1955, she was appointed special
administratrix. The validity of Tasiana's marriage to Francisco was questioned in
said proceeding.
The relationship between the children of the first marriage and Tasiana Ongsingco
has been plagued with several court suits and counter-suits; including the three
cases at bar, some eighteen (18) cases remain pending determination in the
courts. The testate estate of Josefa Tangco alone has been unsettled for more
than a quarter of a century. In order to put an end to all these litigations, a
compromise agreement was entered into on 12 October 1963, 2 by and between
"[T]he heir and son of Francisco de Borja by his first marriage, namely, Jose de
Borja personally and as administrator of the Testate Estate of Josefa Tangco," and
"[T]he heir and surviving spouse of Francisco de Borja by his second marriage,
Tasiana Ongsingco Vda. de Borja, assisted by her lawyer, Atty. Luis Panaguiton
Jr." The terms and conditions of the compromise agreement are as follows:
AGREEMENT
THIS AGREEMENT made and entered into by and between
The heir and son of Francisco de Borja by his first marriage, namely, Jose de
Borja personally and as administrator of the Testate Estate of Josefa Tangco,
AND
The heir and surviving spouse of Francisco de Borja by his second marriage,
Tasiana Ongsingco Vda. de Borja, assisted by her lawyer, Atty. Luis Panaguiton Jr.
WITNESSETH
THAT it is the mutual desire of all the parties herein terminate and settle, with
finality, the various court litigations, controversies, claims, counterclaims, etc.,
between them in connection with the administration, settlement, partition,

adjudication and distribution of the assets as well as liabilities of the estates of


Francisco de Borja and Josefa Tangco, first spouse of Francisco de Borja.
THAT with this end in view, the parties herein have agreed voluntarily and without
any reservations to enter into and execute this agreement under the following
terms and conditions:
1. That the parties agree to sell the Poblacion portion of the Jalajala properties
situated in Jalajala, Rizal, presently under administration in the Testate Estate of
Josefa Tangco (Sp. Proc. No. 7866, Rizal), more specifically described as follows:
Linda al Norte con el Rio Puwang que la separa de la jurisdiccion del Municipio de
Pililla de la Provincia de Rizal, y con el pico del Monte Zambrano; al Oeste con
Laguna de Bay; por el Sur con los herederos de Marcelo de Borja; y por el Este
con los terrenos de la Familia Maronilla
with a segregated area of approximately 1,313 hectares at the amount of P0.30
per square meter.
2. That Jose de Borja agrees and obligates himself to pay Tasiana Ongsingco
Vda. de de Borja the total amount of Eight Hundred Thousand Pesos (P800,000)
Philippine Currency, in cash, which represent P200,000 as his share in the
payment and P600,000 as pro-rata shares of the heirs Crisanto, Cayetano and
Matilde, all surnamed de Borja and this shall be considered as full and complete
payment and settlement of her hereditary share in the estate of the late Francisco
de Borja as well as the estate of Josefa Tangco, Sp. Proc. No. 832-Nueva Ecija
and Sp. Proc. No. 7866-Rizal, respectively, and to any properties bequeathed or
devised in her favor by the late Francisco de Borja by Last Will and Testament or
by Donation Inter Vivos or Mortis Causa or purportedly conveyed to her for
consideration or otherwise. The funds for this payment shall be taken from and
shall depend upon the receipt of full payment of the proceeds of the sale of
Jalajala, "Poblacion."
3. That Tasiana Ongsingco Vda. de de Borja hereby assumes payment of that
particular obligation incurred by the late Francisco de Borja in favor of the
Rehabilitation Finance Corporation, now Development Bank of the Philippines,
amounting to approximately P30,000.00 and also assumes payment of her 1/5
share of the Estate and Inheritance taxes on the Estate of the late Francisco de
Borja or the sum of P3,500.00, more or less, which shall be deducted by the buyer
of Jalajala, "Poblacion" from the payment to be made to Tasiana Ongsingco Vda.
de Borja under paragraph 2 of this Agreement and paid directly to the
Development Bank of the Philippines and the heirs-children of Francisco de Borja.

4. Thereafter, the buyer of Jalajala "Poblacion" is hereby authorized to pay directly


to Tasiana Ongsingco Vda. de de Borja the balance of the payment due her under
paragraph 2 of this Agreement (approximately P766,500.00) and issue in the
name of Tasiana Ongsingco Vda. de de Borja, corresponding certified
checks/treasury warrants, who, in turn, will issue the corresponding receipt to Jose
de Borja.
5. In consideration of above payment to Tasiana Ongsingco Vda. de de Borja,
Jose de Borja personally and as administrator of the Testate Estate of Josefa
Tangco, and Tasiana Ongsingco Vda. de de Borja, for themselves and for their
heirs, successors, executors, administrators, and assigns, hereby forever mutually
renounce, withdraw, waive, remise, release and discharge any and all manner of
action or actions, cause or causes of action, suits, debts, sum or sums of money,
accounts, damages, claims and demands whatsoever, in law or in equity, which
they ever had, or now have or may have against each other, more specifically Sp.
Proceedings Nos. 7866 and 1955, CFI-Rizal, and Sp. Proc. No. 832-Nueva Ecija,
Civil Case No. 3033, CFI Nueva Ecija and Civil Case No. 7452-CFI, Rizal, as well
as the case filed against Manuel Quijal for perjury with the Provincial Fiscal of
Rizal, the intention being to completely, absolutely and finally release each other,
their heirs, successors, and assigns, from any and all liability, arising wholly or
partially, directly or indirectly, from the administration, settlement, and distribution
of the assets as well as liabilities of the estates of Francisco de Borja and Josefa
Tangco, first spouse of Francisco de Borja, and lastly, Tasiana Ongsingco Vda. de
de Borja expressly and specifically renounce absolutely her rights as heir over any
hereditary share in the estate of Francisco de Borja.
6. That Tasiana Ongsingco Vda. de de Borja, upon receipt of the payment under
paragraph 4 hereof, shall deliver to the heir Jose de Borja all the papers, titles and
documents belonging to Francisco de Borja which are in her possession and said
heir Jose de Borja shall issue in turn the corresponding receive thereof.
7. That this agreement shall take effect only upon the fulfillment of the sale of the
properties mentioned under paragraph 1 of this agreement and upon receipt of the
total and full payment of the proceeds of the sale of the Jalajala property
"Poblacion", otherwise, the non-fulfillment of the said sale will render this
instrument NULL AND VOID AND WITHOUT EFFECT THEREAFTER.
IN WITNESS WHEREOF, the parties hereto have her unto set their hands in the
City of Manila, Philippines, the 12th of October, 1963.
On 16 May 1966, Jose de Borja submitted for Court approval the agreement of 12
October 1963 to the Court of First Instance of Rizal, in Special Proceeding No. R-

7866; and again, on 8 August 1966, to the Court of First Instance of Nueva Ecija,
in Special Proceeding No. 832. Tasiana Ongsingco Vda. de de Borja opposed in
both instances. The Rizal court approved the compromise agreement, but the
Nueva Ecija court declared it void and unenforceable. Special administratrix
Tasiana Ongsingco Vda. de de Borja appealed the Rizal Court's order of approval
(now Supreme Court G.R. case No. L-28040), while administrator Jose de Borja
appealed the order of disapproval (G.R. case No. L-28568) by the Court of First
Instance of Nueva Ecija.
The genuineness and due execution of the compromised agreement of 12
October 1963 is not disputed, but its validity is, nevertheless, attacked by Tasiana
Ongsingco on the ground that: (1) the heirs cannot enter into such kind of
agreement without first probating the will of Francisco de Borja; (2) that the same
involves a compromise on the validity of the marriage between Francisco de Borja
and Tasiana Ongsingco; and (3) that even if it were valid, it has ceased to have
force and effect.
In assailing the validity of the agreement of 12 October 1963, Tasiana Ongsingco
and the Probate Court of Nueva Ecija rely on this Court's decision in Guevara vs.
Guevara. 74 Phil. 479, wherein the Court's majority held the view that the
presentation of a will for probate is mandatory and that the settlement and
distribution of an estate on the basis of intestacy when the decedent left a will, is
against the law and public policy. It is likewise pointed out by appellant Tasiana
Ongsingco that Section 1 of Rule 74 of the Revised Rules explicitly conditions the
validity of an extrajudicial settlement of a decedent's estate by agreement between
heirs, upon the facts that "(if) the decedent left no will and no debts, and the heirs
are all of age, or the minors are represented by their judicial and legal
representatives ..." The will of Francisco de Borja having been submitted to the
Nueva Ecija Court and still pending probate when the 1963 agreement was made,
those circumstances, it is argued, bar the validity of the agreement.
Upon the other hand, in claiming the validity of the compromise agreement, Jose
de Borja stresses that at the time it was entered into, on 12 October 1963, the
governing provision was Section 1, Rule 74 of the original Rules of Court of 1940,
which allowed the extrajudicial settlement of the estate of a deceased person
regardless of whether he left a will or not. He also relies on the dissenting opinion
of Justice Moran, in Guevara vs. Guevara, 74 Phil. 479, wherein was expressed
the view that if the parties have already divided the estate in accordance with a
decedent's will, the probate of the will is a useless ceremony; and if they have
divided the estate in a different manner, the probate of the will is worse than
useless.

The doctrine of Guevara vs. Guevara, ante, is not applicable to the case at bar.
This is apparent from an examination of the terms of the agreement between Jose
de Borja and Tasiana Ongsingco. Paragraph 2 of said agreement specifically
stipulates that the sum of P800,000 payable to Tasiana Ongsingco
shall be considered as full complete payment settlement of her hereditary
share in the estate of the late Francisco de Borja as well as the estate of Josefa
Tangco, ... and to any properties bequeathed or devised in her favor by the late
Francisco de Borja by Last Will and Testament or by Donation Inter Vivos or Mortis
Causa or purportedly conveyed to her for consideration or otherwise.
This provision evidences beyond doubt that the ruling in the Guevara case is not
applicable to the cases at bar. There was here no attempt to settle or distribute the
estate of Francisco de Borja among the heirs thereto before the probate of his will.
The clear object of the contract was merely the conveyance by Tasiana Ongsingco
of any and all her individual share and interest, actual or eventual in the estate of
Francisco de Borja and Josefa Tangco. There is no stipulation as to any other
claimant, creditor or legatee. And as a hereditary share in a decedent's estate is
transmitted or vested immediately from the moment of the death of such causante
or predecessor in interest (Civil Code of the Philippines, Art. 777) 3 there is no legal
bar to a successor (with requisite contracting capacity) disposing of her or his
hereditary share immediately after such death, even if the actual extent of such
share is not determined until the subsequent liquidation of the estate. 4 Of course,
the effect of such alienation is to be deemed limited to what is ultimately
adjudicated to the vendor heir. However, the aleatory character of the contract
does not affect the validity of the transaction; neither does the coetaneous
agreement that the numerous litigations between the parties (the approving order
of the Rizal Court enumerates fourteen of them, Rec. App. pp. 79-82) are to be
considered settled and should be dismissed, although such stipulation, as noted
by the Rizal Court, gives the contract the character of a compromise that the law
favors, for obvious reasons, if only because it serves to avoid a multiplicity of suits.
It is likewise worthy of note in this connection that as the surviving spouse of
Francisco de Borja, Tasiana Ongsingco was his compulsory heir under article 995
et seq. of the present Civil Code. Wherefore, barring unworthiness or valid
disinheritance, her successional interest existed independent of Francisco de
Borja's last will and testament and would exist even if such will were not probated
at all. Thus, the prerequisite of a previous probate of the will, as established in the
Guevara and analogous cases, can not apply to the case of Tasiana Ongsingco
Vda. de de Borja.
Since the compromise contract Annex A was entered into by and between "Jose

de Borja personally and as administrator of the Testate Estate of Josefa Tangco"


on the one hand, and on the other, "the heir and surviving spouse of Francisco de
Borja by his second marriage, Tasiana Ongsingco Vda. de de Borja", it is clear
that the transaction was binding on both in their individual capacities, upon the
perfection of the contract, even without previous authority of the Court to enter into
the same. The only difference between an extrajudicial compromise and one that
is submitted and approved by the Court, is that the latter can be enforced by
execution proceedings. Art. 2037 of the Civil Code is explicit on the point:
8. Art. 2037. A compromise has upon the parties the effect and authority of res
judicata; but there shall be no execution except in compliance with a judicial
compromise.
It is argued by Tasiana Ongsingco that while the agreement Annex A expressed no
definite period for its performance, the same was intended to have a resolutory
period of 60 days for its effectiveness. In support of such contention, it is averred
that such a limit was expressly stipulated in an agreement in similar terms entered
into by said Ongsingco with the brothers and sister of Jose de Borja, to wit,
Crisanto, Matilde and Cayetano, all surnamed de Borja, except that the
consideration was fixed at P600,000 (Opposition, Annex/Rec. of Appeal, L-28040,
pp. 39- 46) and which contained the following clause:
III. That this agreement shall take effect only upon the consummation of the sale
of the property mentioned herein and upon receipt of the total and full payment of
the proceeds of the sale by the herein owner heirs-children of Francisco de Borja,
namely, Crisanto, Cayetano and Matilde, all surnamed de Borja; Provided that if
no sale of the said property mentioned herein is consummated, or the non-receipt
of the purchase price thereof by the said owners within the period of sixty (60)
days from the date hereof, this agreement will become null and void and of no
further effect.
Ongsingco's argument loses validity when it is considered that Jose de Borja was
not a party to this particular contract (Annex 1), and that the same appears not to
have been finalized, since it bears no date, the day being left blank "this day of
October 1963"; and while signed by the parties, it was not notarized, although
plainly intended to be so done, since it carries a proposed notarial ratification
clause. Furthermore, the compromise contract with Jose de Borja (Annex A),
provides in its par. 2 heretofore transcribed that of the total consideration of P800,
000 to be paid to Ongsingco, P600,000 represent the "prorata share of the heirs
Crisanto, Cayetano and Matilde all surnamed de Borja" which corresponds to the
consideration of P600,000 recited in Annex 1, and that circumstance is proof that
the duly notarized contract entered into wit Jose de Borja under date 12 October

1963 (Annex A), was designed to absorb and supersede the separate unformalize
agreement with the other three Borja heirs. Hence, the 60 days resolutory term in
the contract with the latter (Annex 1) not being repeated in Annex A, can not apply
to the formal compromise with Jose de Borja. It is moreover manifest that the
stipulation that the sale of the Hacienda de Jalajala was to be made within sixty
days from the date of the agreement with Jose de Borja's co-heirs (Annex 1) was
plainly omitted in Annex A as improper and ineffective, since the Hacienda de
Jalajala (Poblacion) that was to be sold to raise the P800,000 to be paid to
Ongsingco for her share formed part of the estate of Francisco de Borja and could
not be sold until authorized by the Probate Court. The Court of First Instance of
Rizal so understood it, and in approving the compromise it fixed a term of 120
days counted from the finality of the order now under appeal, for the carrying out
by the parties for the terms of the contract.
This brings us to the plea that the Court of First Instance of Rizal had no
jurisdiction to approve the compromise with Jose de Borja (Annex A) because
Tasiana Ongsingco was not an heir in the estate of Josefa Tangco pending
settlement in the Rizal Court, but she was an heir of Francisco de Borja, whose
estate was the object of Special Proceeding No. 832 of the Court of First Instance
of Nueva Ecija. This circumstance is irrelevant, since what was sold by Tasiana
Ongsingco was only her eventual share in the estate of her late husband, not the
estate itself; and as already shown, that eventual share she owned from the time
of Francisco's death and the Court of Nueva Ecija could not bar her selling it. As
owner of her undivided hereditary share, Tasiana could dispose of it in favor of
whomsoever she chose. Such alienation is expressly recognized and provided for
by article 1088 of the present Civil Code:
Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the
partition, any or all of the co-heirs may be subrogated to the rights of the
purchaser by reimbursing him for the price of the sale, provided they do so within
the period of one month from the time they were notified in writing of the sale of
the vendor.
If a sale of a hereditary right can be made to a stranger, then a fortiori sale thereof
to a coheir could not be forbidden.
Tasiana Ongsingco further argues that her contract with Jose de Borja (Annex "A")
is void because it amounts to a compromise as to her status and marriage with the
late Francisco de Borja. The point is without merit, for the very opening paragraph
of the agreement with Jose de Borja (Annex "A") describes her as "the heir and
surviving spouse of Francisco de Borja by his second marriage, Tasiana
Ongsingco Vda. de de Borja", which is in itself definite admission of her civil

status. There is nothing in the text of the agreement that would show that this
recognition of Ongsingco's status as the surviving spouse of Francisco de Borja
was only made in consideration of the cession of her hereditary rights.
It is finally charged by appellant Ongsingco, as well as by the Court of First
Instance of Nueva Ecija in its order of 21 September 1964, in Special Proceedings
No. 832 (Amended Record on Appeal in L-28568, page 157), that the compromise
agreement of 13 October 1963 (Annex "A") had been abandoned, as shown by
the fact that, after its execution, the Court of First Instance of Nueva Ecija, in its
order of 21 September 1964, had declared that "no amicable settlement had been
arrived at by the parties", and that Jose de Borja himself, in a motion of 17 June
1964, had stated that the proposed amicable settlement "had failed to materialize".
It is difficult to believe, however, that the amicable settlement referred to in the
order and motion above-mentioned was the compromise agreement of 13 October
1963, which already had been formally signed and executed by the parties and
duly notarized. What the record discloses is that some time after its formalization,
Ongsingco had unilaterally attempted to back out from the compromise
agreement, pleading various reasons restated in the opposition to the Court's
approval of Annex "A" (Record on Appeal, L-20840, page 23): that the same was
invalid because of the lapse of the allegedly intended resolutory period of 60 days
and because the contract was not preceded by the probate of Francisco de Borja's
will, as required by this Court's Guevarra vs. Guevara ruling; that Annex "A"
involved a compromise affecting Ongsingco's status as wife and widow of
Francisco de Borja, etc., all of which objections have been already discussed. It
was natural that in view of the widow's attitude, Jose de Borja should attempt to
reach a new settlement or novatory agreement before seeking judicial sanction
and enforcement of Annex "A", since the latter step might ultimately entail a longer
delay in attaining final remedy. That the attempt to reach another settlement failed
is apparent from the letter of Ongsingco's counsel to Jose de Borja quoted in
pages 35-36 of the brief for appellant Ongsingco in G.R. No. 28040; and it is more
than probable that the order of 21 September 1964 and the motion of 17 June
1964 referred to the failure of the parties' quest for a more satisfactory
compromise. But the inability to reach a novatory accord can not invalidate the
original compromise (Annex "A") and justifies the act of Jose de Borja in finally
seeking a court order for its approval and enforcement from the Court of First
Instance of Rizal, which, as heretofore described, decreed that the agreement be
ultimately performed within 120 days from the finality of the order, now under
appeal.
We conclude that in so doing, the Rizal court acted in accordance with law, and,

therefore, its order should be upheld, while the contrary resolution of the Court of
First Instance of Nueva Ecija should be, and is, reversed.
In her brief, Tasiana Ongsingco also pleads that the time elapsed in the appeal
has affected her unfavorably, in that while the purchasing power of the agreed
price of P800,000 has diminished, the value of the Jalajala property has
increased. But the fact is that her delay in receiving the payment of the agreed
price for her hereditary interest was primarily due to her attempts to nullify the
agreement (Annex "A") she had formally entered into with the advice of her
counsel, Attorney Panaguiton. And as to the devaluation de facto of our currency,
what We said in Dizon Rivera vs. Dizon, L-24561, 30 June 1970, 33 SCRA 554,
that "estates would never be settled if there were to be a revaluation with every
subsequent fluctuation in the values of currency and properties of the estate", is
particularly opposite in the present case.
Coming now to Case G.R. No. L-28611, the issue is whether the Hacienda de
Jalajala (Poblacion), concededly acquired by Francisco de Borja during his
marriage to his first wife, Josefa Tangco, is the husband's private property (as
contended by his second spouse, Tasiana Ongsingco), or whether it forms part of
the conjugal (ganancial) partnership with Josefa Tangco. The Court of First
Instance of Rizal (Judge Herminio Mariano, presiding) declared that there was
adequate evidence to overcome the presumption in favor of its conjugal character
established by Article 160 of the Civil Code.
We are of the opinion that this question as between Tasiana Ongsingco and Jose
de Borja has become moot and academic, in view of the conclusion reached by
this Court in the two preceding cases (G.R. No. L-28568), upholding as valid the
cession of Tasiana Ongsingco's eventual share in the estate of her late husband,
Francisco de Borja, for the sum of P800,000 with the accompanying reciprocal
quit-claims between the parties. But as the question may affect the rights of
possible creditors and legatees, its resolution is still imperative.
It is undisputed that the Hacienda Jalajala, of around 4,363 hectares, had been
originally acquired jointly by Francisco de Borja, Bernardo de Borja and Marcelo
de Borja and their title thereto was duly registered in their names as co-owners in
Land Registration Case No. 528 of the province of Rizal, G.L.R.O. Rec. No. 26403
(De Barjo vs. Jugo, 54 Phil. 465). Subsequently, in 1931, the Hacienda was
partitioned among the co-owners: the Punta section went to Marcelo de Borja; the
Bagombong section to Bernardo de Borja, and the part in Jalajala proper
(Poblacion) corresponded to Francisco de Borja (V. De Borja vs. De Borja 101
Phil. 911, 932).

The lot allotted to Francisco was described as


Una Parcela de terreno en Poblacion, Jalajala: N. Puang River; E. Hermogena
Romero; S. Heirs of Marcelo de Borja O. Laguna de Bay; containing an area of
13,488,870 sq. m. more or less, assessed at P297,410. (Record on Appeal, pages
7 and 105)
On 20 November 1962, Tasiana O. Vda. de Borja, as Administratrix of the Testate
Estate of Francisco de Borja, instituted a complaint in the Court of First Instance of
Rizal (Civil Case No. 7452) against Jose de Borja, in his capacity as Administrator
of Josefa Tangco (Francisco de Borja's first wife), seeking to have the Hacienda
above described declared exclusive private property of Francisco, while in his
answer defendant (now appellant) Jose de Borja claimed that it was conjugal
property of his parents (Francisco de Borja and Josefa Tangco), conformably to
the presumption established by Article 160 of the Philippine Civil Code
(reproducing Article 1407 of the Civil Code of 1889), to the effect that:
Art. 160. All property of the marriage is presumed to belong to the conjugal
partnership, unless it be proved that it pertains exclusively to the husband or to the
wife.
Defendant Jose de Borja further counterclaimed for damages, compensatory,
moral and exemplary, as well as for attorney's fees.
After trial, the Court of First Instance of Rizal, per Judge Herminio Mariano, held
that the plaintiff had adduced sufficient evidence to rebut the presumption, and
declared the Hacienda de Jalajala (Poblacion) to be the exclusive private property
of the late Francisco de Borja, and his Administratrix, Tasiana Ongsingco Vda. de
Borja, to be entitled to its possession. Defendant Jose de Borja then appealed to
this Court.
The evidence reveals, and the appealed order admits, that the character of the
Hacienda in question as owned by the conjugal partnership De Borja-Tangco was
solemnly admitted by the late Francisco de Borja no less than two times: first, in
the Reamended Inventory that, as executor of the estate of his deceased wife
Josefa Tangco, he filed in the Special Proceedings No. 7866 of the Court of First
Instance of Rizal on 23 July 1953 (Exhibit "2"); and again, in the Reamended
Accounting of the same date, also filed in the proceedings aforesaid (Exhibit "7").
Similarly, the plaintiff Tasiana O. Vda. de Borja, herself, as oppositor in the Estate
of Josefa Tangco, submitted therein an inventory dated 7 September 1954 (Exhibit
"3") listing the Jalajala property among the "Conjugal Properties of the Spouses
Francisco de Borja and Josefa Tangco". And once more, Tasiana Ongsingco, as

administratrix of the Estate of Francisco de Borja, in Special Proceedings No. 832


of the Court of First Instance of Nueva Ecija, submitted therein in December,
1955, an inventory wherein she listed the Jalajala Hacienda under the heading
"Conjugal Property of the Deceased Spouses Francisco de Borja and Josefa
Tangco, which are in the possession of the Administrator of the Testate Estate of
the Deceased Josefa Tangco in Special Proceedings No. 7866 of the Court of First
Instance of Rizal" (Exhibit "4").
Notwithstanding the four statements aforesaid, and the fact that they are plain
admissions against interest made by both Francisco de Borja and the
Administratrix of his estate, in the course of judicial proceedings in the Rizal and
Nueva Ecija Courts, supporting the legal presumption in favor of the conjugal
community, the Court below declared that the Hacienda de Jalajala (Poblacion)
was not conjugal property, but the private exclusive property of the late Francisco
de Borja. It did so on the strength of the following evidences: (a) the sworn
statement by Francis de Borja on 6 August 1951 (Exhibit "F") that
He tomado possession del pedazo de terreno ya delimitado (equivalente a 1/4
parte, 337 hectareas) adjunto a mi terreno personal y exclusivo (Poblacion de
Jalajala, Rizal).
and (b) the testimony of Gregorio de Borja, son of Bernardo de Borja, that the
entire Hacienda had been bought at a foreclosure sale for P40,100.00, of which
amount P25,100 was contributed by Bernardo de Borja and P15,000. by Marcelo
de Borja; that upon receipt of a subsequent demand from the provincial treasurer
for realty taxes the sum of P17,000, Marcelo told his brother Bernardo that
Francisco (son of Marcelo) wanted also to be a co-owner, and upon Bernardo's
assent to the proposal, Marcelo issue a check for P17,000.00 to pay the back
taxes and said that the amount would represent Francisco's contribution in the
purchase of the Hacienda. The witness further testified that
Marcelo de Borja said that that money was entrusted to him by Francisco de Borja
when he was still a bachelor and which he derived from his business transactions.
(Hearing, 2 February 1965, t.s.n., pages 13-15) (Emphasis supplied)
The Court below, reasoning that not only Francisco's sworn statement
overweighed the admissions in the inventories relied upon by defendant-appellant
Jose de Borja since probate courts can not finally determine questions of
ownership of inventoried property, but that the testimony of Gregorio de Borja
showed that Francisco de Borja acquired his share of the original Hacienda with
his private funds, for which reason that share can not be regarded as conjugal
partnership property, but as exclusive property of the buyer, pursuant to Article

1396(4) of Civil Code of 1889 and Article 148(4) of the Civil Code of the
Philippines.
The following shall be the exclusive property of each spouse:
xxx xxx xxx
(4) That which is purchased with exclusive money of the wife or of the husband.
We find the conclusions of the lower court to be untenable. In the first place,
witness Gregorio de Borja's testimony as to the source of the money paid by
Francisco for his share was plain hearsay, hence inadmissible and of no probative
value, since he was merely repeating what Marcelo de Borja had told him
(Gregorio). There is no way of ascertaining the truth of the statement, since both
Marcelo and Francisco de Borja were already dead when Gregorio testified. In
addition, the statement itself is improbable, since there was no need or occasion
for Marcelo de Borja to explain to Gregorio how and when Francisco de Borja had
earned the P17,000.00 entrusted to Marcelo. A ring of artificiality is clearly
discernible in this portion of Gregorio's testimony.
As to Francisco de Borja's affidavit, Exhibit "F", the quoted portion thereof (ante,
page 14) does not clearly demonstrate that the "mi terreno personal y exclusivo
(Poblacion de Jalajala, Rizal) " refers precisely to the Hacienda in question. The
inventories (Exhibits 3 and 4) disclose that there were two real properties in
Jalajala owned by Francisco de Borja, one of 72.038 sq. m., assessed at P44,600,
and a much bigger one of 1,357.260.70 sq. m., which is evidently the Hacienda de
Jalajala (Poblacion). To which of these lands did the affidavit of Francisco de Borja
(Exhibit "F") refer to? In addition, Francisco's characterization of the land as "mi
terreno personal y exclusivo" is plainly self-serving, and not admissible in the
absence of cross examination.
It may be true that the inventories relied upon by defendant-appellant (Exhibits "2",
"3", "4" and "7") are not conclusive on the conjugal character of the property in
question; but as already noted, they are clear admissions against the pecuniary
interest of the declarants, Francisco de Borja and his executor-widow, Tasiana
Ongsingco, and as such of much greater probative weight than the self-serving
statement of Francisco (Exhibit "F"). Plainly, the legal presumption in favor of the
conjugal character of the Hacienda de Jalajala (Poblacion) now in dispute has not
been rebutted but actually confirmed by proof. Hence, the appealed order should
be reversed and the Hacienda de Jalajala (Poblacion) declared property of the
conjugal partnership of Francisco de Borja and Josefa Tangco.

No error having been assigned against the ruling of the lower court that claims for
damages should be ventilated in the corresponding special proceedings for the
settlement of the estates of the deceased, the same requires no pro
announcement from this Court.
IN VIEW OF THE FOREGOING, the appealed order of the Court of First Instance
of Rizal in Case No. L-28040 is hereby affirmed; while those involved in Cases
Nos. L-28568 and L-28611 are reversed and set aside. Costs against the
appellant Tasiana Ongsingco Vda. de Borja in all three (3) cases.

ROSALIO BONILLA (a minor) SALVACION BONILLA (a minor) and


PONCIANO BONILLA (their father) who represents the minors, petitioners,
vs.
LEON BARCENA, MAXIMA ARIAS BALLENA, ESPERANZA BARCENA,
MANUEL BARCENA, AGUSTINA NERI, widow of JULIAN TAMAYO and HON.
LEOPOLDO GIRONELLA of the Court of First Instance of Abra,respondents.
This is a petition for review 1 of the Order of the Court of First Instance of Abra in
Civil Case No. 856, entitled Fortunata Barcena vs. Leon Barcena, et al., denying
the motions for reconsideration of its order dismissing the complaint in the
aforementioned case.
On March 31, 1975 Fortunata Barcena, mother of minors Rosalio Bonilla and
Salvacion Bonilla and wife of Ponciano Bonilla, instituted a civil action in the Court
of First Instance of Abra, to quiet title over certain parcels of land located in Abra.
On May 9, 1975, defendants filed a written motion to dismiss the complaint, but
before the hearing of the motion to dismiss, the counsel for the plaintiff moved to
amend the complaint in order to include certain allegations therein. The motion to
amend the complaint was granted and on July 17, 1975, plaintiffs filed their
amended complaint.
On August 4, 1975, the defendants filed another motion to dismiss the complaint
on the ground that Fortunata Barcena is dead and, therefore, has no legal
capacity to sue. Said motion to dismiss was heard on August 14, 1975. In said

hearing, counsel for the plaintiff confirmed the death of Fortunata Barcena, and
asked for substitution by her minor children and her husband, the petitioners
herein; but the court after the hearing immediately dismissed the case on the
ground that a dead person cannot be a real party in interest and has no legal
personality to sue.
On August 19, 1975, counsel for the plaintiff received a copy of the order
dismissing the complaint and on August 23, 1975, he moved to set aside the order
of the dismissal pursuant to Sections 16 and 17 of Rule 3 of the Rules of Court. 2
On August 28, 1975, the court denied the motion for reconsideration filed by
counsel for the plaintiff for lack of merit. On September 1, 1975, counsel for
deceased plaintiff filed a written manifestation praying that the minors Rosalio
Bonilla and Salvacion Bonilla be allowed to substitute their deceased mother, but
the court denied the counsel's prayer for lack of merit. From the order, counsel for
the deceased plaintiff filed a second motion for reconsideration of the order
dismissing the complaint claiming that the same is in violation of Sections 16 and
17 of Rule 3 of the Rules of Court but the same was denied.
Hence, this petition for review.
The Court reverses the respondent Court and sets aside its order dismissing the
complaint in Civil Case No. 856 and its orders denying the motion for
reconsideration of said order of dismissal. While it is true that a person who is
dead cannot sue in court, yet he can be substituted by his heirs in pursuing the
case up to its completion. The records of this case show that the death of
Fortunata Barcena took place on July 9, 1975 while the complaint was filed on
March 31, 1975. This means that when the complaint was filed on March 31,
1975, Fortunata Barcena was still alive, and therefore, the court had acquired
jurisdiction over her person. If thereafter she died, the Rules of Court prescribes
the procedure whereby a party who died during the pendency of the proceeding
can be substituted. Under Section 16, Rule 3 of the Rules of Court "whenever a
party to a pending case dies ... it shall be the duty of his attorney to inform the
court promptly of such death ... and to give the name and residence of his
executor, administrator, guardian or other legal representatives." This duty was
complied with by the counsel for the deceased plaintiff when he manifested before
the respondent Court that Fortunata Barcena died on July 9, 1975 and asked for
the proper substitution of parties in the case. The respondent Court, however,
instead of allowing the substitution, dismissed the complaint on the ground that a
dead person has no legal personality to sue. This is a grave error. Article 777 of
the Civil Code provides "that the rights to the succession are transmitted from the
moment of the death of the decedent." From the moment of the death of the

decedent, the heirs become the absolute owners of his property, subject to the
rights and obligations of the decedent, and they cannot be deprived of their rights
thereto except by the methods provided for by law. 3 The moment of death is the
determining factor when the heirs acquire a definite right to the inheritance
whether such right be pure or contingent. 4 The right of the heirs to the property of
the deceased vests in them even before judicial declaration of their being heirs in
the testate or intestate proceedings. 5 When Fortunata Barcena, therefore, died
her claim or right to the parcels of land in litigation in Civil Case No. 856, was not
extinguished by her death but was transmitted to her heirs upon her death. Her
heirs have thus acquired interest in the properties in litigation and became parties
in interest in the case. There is, therefore, no reason for the respondent Court not
to allow their substitution as parties in interest for the deceased plaintiff.
Under Section 17, Rule 3 of the Rules of Court "after a party dies and the claim is
not thereby extinguished, the court shall order, upon proper notice, the legal
representative of the deceased to appear and be substituted for the deceased,
within such time as may be granted ... ." The question as to whether an action
survives or not depends on the nature of the action and the damage sued for. 6 In
the causes of action which survive the wrong complained affects primarily and
principally property and property rights, the injuries to the person being merely
incidental, while in the causes of action which do not survive the injury complained
of is to the person, the property and rights of property affected being incidental. 7
Following the foregoing criterion the claim of the deceased plaintiff which is an
action to quiet title over the parcels of land in litigation affects primarily and
principally property and property rights and therefore is one that survives even
after her death. It is, therefore, the duty of the respondent Court to order the legal
representative of the deceased plaintiff to appear and to be substituted for her. But
what the respondent Court did, upon being informed by the counsel for the
deceased plaintiff that the latter was dead, was to dismiss the complaint. This
should not have been done for under the same Section 17, Rule 3 of the Rules of
Court, it is even the duty of the court, if the legal representative fails to appear, to
order the opposing party to procure the appointment of a legal representative of
the deceased. In the instant case the respondent Court did not have to bother
ordering the opposing party to procure the appointment of a legal representative of
the deceased because her counsel has not only asked that the minor children be
substituted for her but also suggested that their uncle be appointed as guardian
ad litem for them because their father is busy in Manila earning a living for the
family. But the respondent Court refused the request for substitution on the ground
that the children were still minors and cannot sue in court. This is another grave
error because the respondent Court ought to have known that under the same
Section 17, Rule 3 of the Rules of Court, the court is directed to appoint a

guardian ad litem for the minor heirs. Precisely in the instant case, the counsel for
the deceased plaintiff has suggested to the respondent Court that the uncle of the
minors be appointed to act as guardian ad litem for them. Unquestionably, the
respondent Court has gravely abused its discretion in not complying with the clear
provision of the Rules of Court in dismissing the complaint of the plaintiff in Civil
Case No. 856 and refusing the substitution of parties in the case.
IN VIEW OF THE FOREGOING, the order of the respondent Court dismissing the
complaint in Civil Case No. 856 of the Court of First Instance of Abra and the
motions for reconsideration of the order of dismissal of said complaint are set
aside and the respondent Court is hereby directed to allow the substitution of the
minor children, who are the petitioners therein for the deceased plaintiff and to
appoint a qualified person as guardian ad litem for them. Without pronouncement
as to costs.
SO ORDERED.
Teehankee (Chairman), Makasiar, Esguerra and Muoz Palma, JJ., concur.

Footnotes
1 Which this Court treats as special civil action as per its Resolution dated
February 11, 1976.
2 Section 16. Duty of Attorney upon which death, incapacity or incompetency
party. - Whenever a party to a pending case dies, becomes incapacitated
incompetent, it shall be the duty of his attorney to inform the court promptly
such death, incapacity or incompetency, and to give the name and residence
his executor, administrator, guardian or other legal representative.

of
or
of
of

Section 17. Death of 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 to be substituted for 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 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 litemfor the minor heirs.

ROMARICO G. VITUG, petitioner,


vs.
THE HONORABLE COURT OF APPEALS and ROWENA FAUSTINO-CORONA,
respondents
This case is a chapter in an earlier suit decided by this Court 1 involving the
probate of the two wills of the late Dolores Luchangco Vitug, who died in New
York, U. S.A., on November 10, 1980, naming private respondent Rowena
Faustino-Corona executrix. In our said decision, we upheld the appointment of
Nenita Alonte as co-special administrator of Mrs. Vitug's estate with her (Mrs.
Vitug's) widower, petitioner Romarico G. Vitug, pending probate.
On January 13, 1985, Romarico G. Vitug filed a motion asking for authority from
the probate court to sell certain shares of stock and real properties belonging to
the estate to cover allegedly his advances to the estate in the sum of
P667,731.66, plus interests, which he claimed were personal funds. As found by
the Court of Appeals, 2 the alleged advances consisted of P58,147.40 spent for the
payment of estate tax, P518,834.27 as deficiency estate tax, and P90,749.99 as
"increment thereto." 3 According to Mr. Vitug, he withdrew the sums of
P518,834.27 and P90,749.99 from savings account No. 35342-038 of the Bank of
America, Makati, Metro Manila.
On April 12, 1985, Rowena Corona opposed the motion to sell on the ground that
the same funds withdrawn from savings account No. 35342-038 were conjugal
partnership properties and part of the estate, and hence, there was allegedly no
ground for reimbursement. She also sought his ouster for failure to include the
sums in question for inventory and for "concealment of funds belonging to the
estate." 4
Vitug insists that the said funds are his exclusive property having acquired the
same through a survivorship agreement executed with his late wife and the bank
on June 19, 1970. The agreement provides:
We hereby agree with each other and with the BANK OF AMERICAN NATIONAL
TRUST AND SAVINGS ASSOCIATION (hereinafter referred to as the BANK), that
all money now or hereafter deposited by us or any or either of us with the BANK in

our joint savings current account shall be the property of all or both of us and shall
be payable to and collectible or withdrawable by either or any of us during our
lifetime, and after the death of either or any of us shall belong to and be the sole
property of the survivor or survivors, and shall be payable to and collectible or
withdrawable by such survivor or survivors.
We further agree with each other and the BANK that the receipt or check of either,
any or all of us during our lifetime, or the receipt or check of the survivor or
survivors, for any payment or withdrawal made for our above-mentioned account
shall be valid and sufficient release and discharge of the BANK for such payment
or withdrawal. 5
The trial courts 6 upheld the validity of this agreement and granted "the motion to
sell some of the estate of Dolores L. Vitug, the proceeds of which shall be used to
pay the personal funds of Romarico Vitug in the total sum of P667,731.66 ... ." 7
On the other hand, the Court of Appeals, in the petition for certiorari filed by the
herein private respondent, held that the above-quoted survivorship agreement
constitutes a conveyance mortis causa which "did not comply with the formalities
of a valid will as prescribed by Article 805 of the Civil Code," 8 and secondly,
assuming that it is a mere donation inter vivos, it is a prohibited donation under the
provisions of Article 133 of the Civil Code. 9
The dispositive portion of the decision of the Court of Appeals states:
WHEREFORE, the order of respondent Judge dated November 26, 1985 (Annex
II, petition) is hereby set aside insofar as it granted private respondent's motion to
sell certain properties of the estate of Dolores L. Vitug for reimbursement of his
alleged advances to the estate, but the same order is sustained in all other
respects. In addition, respondent Judge is directed to include provisionally the
deposits in Savings Account No. 35342-038 with the Bank of America, Makati, in
the inventory of actual properties possessed by the spouses at the time of the
decedent's death. With costs against private respondent. 10
In his petition, Vitug, the surviving spouse, assails the appellate court's ruling on
the strength of our decisions in Rivera v. People's Bank and Trust Co. 11 and
Macam v. Gatmaitan 12 in which we sustained the validity of "survivorship
agreements" and considering them as aleatory contracts. 13
The petition is meritorious.
The conveyance in question is not, first of all, one of mortis causa, which should

be embodied in a will. A will has been defined as "a personal, solemn, revocable
and free act by which a capacitated person disposes of his property and rights and
declares or complies with duties to take effect after his death." 14 In other words,
the bequest or device must pertain to the testator. 15 In this case, the monies
subject of savings account No. 35342-038 were in the nature of conjugal funds In
the case relied on, Rivera v. People's Bank and Trust Co., 16 we rejected claims
that a survivorship agreement purports to deliver one party's separate properties
in favor of the other, but simply, their joint holdings:
In Macam v. Gatmaitan, 18 it was held:
xxx xxx xxx
This Court is of the opinion that Exhibit C is an aleatory contract whereby,
according to article 1790 of the Civil Code, one of the parties or both reciprocally
bind themselves to give or do something as an equivalent for that which the other
party is to give or do in case of the occurrence of an event which is uncertain or
will happen at an indeterminate time. As already stated, Leonarda was the owner
of the house and Juana of the Buick automobile and most of the furniture. By
virtue of Exhibit C, Juana would become the owner of the house in case Leonarda
died first, and Leonarda would become the owner of the automobile and the
furniture if Juana were to die first. In this manner Leonarda and Juana reciprocally
assigned their respective property to one another conditioned upon who might die
first, the time of death determining the event upon which the acquisition of such
right by the one or the other depended. This contract, as any other contract, is
binding upon the parties thereto. Inasmuch as Leonarda had died before Juana,
the latter thereupon acquired the ownership of the house, in the same manner as
Leonarda would have acquired the ownership of the automobile and of the
furniture if Juana had died first. 19
xxx xxx xxx
There is no showing that the funds exclusively belonged to one party, and hence it
must be presumed to be conjugal, having been acquired during the existence of
the marita. relations. 20
Neither is the survivorship agreement a donation inter vivos, for obvious reasons,
because it was to take effect after the death of one party. Secondly, it is not a
donation between the spouses because it involved no conveyance of a spouse's
own properties to the other.
It is also our opinion that the agreement involves no modification petition of the

conjugal partnership, as held by the Court of Appeals, 21 by "mere stipulation" 22


and that it is no "cloak" 23 to circumvent the law on conjugal property relations.
Certainly, the spouses are not prohibited by law to invest conjugal property, say, by
way of a joint and several bank account, more commonly denominated in banking
parlance as an "and/or" account. In the case at bar, when the spouses Vitug
opened savings account No. 35342-038, they merely put what rightfully belonged
to them in a money-making venture. They did not dispose of it in favor of the other,
which would have arguably been sanctionable as a prohibited donation. And since
the funds were conjugal, it can not be said that one spouse could have pressured
the other in placing his or her deposits in the money pool.
The validity of the contract seems debatable by reason of its "survivor-take-all"
feature, but in reality, that contract imposed a mere obligation with a term, the term
being death. Such agreements are permitted by the Civil Code. 24
Under Article 2010 of the Code:
ART. 2010. By an aleatory contract, one of the parties or both reciprocally bind
themselves to give or to do something in consideration of what the other shall give
or do upon the happening of an event which is uncertain, or which is to occur at an
indeterminate time.
Under the aforequoted provision, the fulfillment of an aleatory contract depends on
either the happening of an event which is (1) "uncertain," (2) "which is to occur at
an indeterminate time." A survivorship agreement, the sale of a sweepstake ticket,
a transaction stipulating on the value of currency, and insurance have been held to
fall under the first category, while a contract for life annuity or pension under Article
2021, et sequentia, has been categorized under the second. 25 In either case, the
element of risk is present. In the case at bar, the risk was the death of one party
and survivorship of the other.
However, as we have warned:
xxx xxx xxx
But although the survivorship agreement is per se not contrary to law its operation
or effect may be violative of the law. For instance, if it be shown in a given case
that such agreement is a mere cloak to hide an inofficious donation, to transfer
property in fraud of creditors, or to defeat the legitime of a forced heir, it may be
assailed and annulled upon such grounds. No such vice has been imputed and
established against the agreement involved in this case. 26

xxx xxx xxx


There is no demonstration here that the survivorship agreement had been
executed for such unlawful purposes, or, as held by the respondent court, in order
to frustrate our laws on wills, donations, and conjugal partnership.
The conclusion is accordingly unavoidable that Mrs. Vitug having predeceased her
husband, the latter has acquired upon her death a vested right over the amounts
under savings account No. 35342-038 of the Bank of America. Insofar as the
respondent court ordered their inclusion in the inventory of assets left by Mrs.
Vitug, we hold that the court was in error. Being the separate property of petitioner,
it forms no more part of the estate of the deceased.
WHEREFORE, the decision of the respondent appellate court, dated June 29,
1987, and its resolution, dated February 9, 1988, are SET ASIDE.
xxx xxx xxx
... Such conclusion is evidently predicated on the assumption that Stephenson
was the exclusive owner of the funds-deposited in the bank, which assumption
was in turn based on the facts (1) that the account was originally opened in the
name of Stephenson alone and (2) that Ana Rivera "served only as housemaid of
the deceased." But it not infrequently happens that a person deposits money in
the bank in the name of another; and in the instant case it also appears that Ana
Rivera served her master for about nineteen years without actually receiving her
salary from him. The fact that subsequently Stephenson transferred the account to
the name of himself and/or Ana Rivera and executed with the latter the
survivorship agreement in question although there was no relation of kinship
between them but only that of master and servant, nullifies the assumption that
Stephenson was the exclusive owner of the bank account. In the absence, then, of
clear proof to the contrary, we must give full faith and credit to the certificate of
deposit which recites in effect that the funds in question belonged to Edgar
Stephenson and Ana Rivera; that they were joint (and several) owners thereof;
and that either of them could withdraw any part or the whole of said account
during the lifetime of both, and the balance, if any, upon the death of either,
belonged to the survivor. 17

NENITA DE VERA SUROZA, complainant,


vs.
JUDGE REYNALDO P. HONRADO of the Court of First Instance of Rizal,

Pasig Branch 25 and EVANGELINE S. YUIPCO, Deputy Clerk of Court,


respondents.
Should disciplinary action be taken against respondent judge for having admitted
to probate a will, which on its face is void because it is written in English, a
language not known to the illiterate testatrix, and which is probably a forged will
because she and the attesting witnesses did not appear before the notary as
admitted by the notary himself?
That question arises under the pleadings filed in the testate case and in the
certiorari case in the Court of Appeals which reveal the following tangled strands
of human relationship:
Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (Philippine Scouts),
Fort McKinley, married Marcelina Salvador in 1923 (p. 150, Spec. Proc. No. 7816).
They were childless. They reared a boy named Agapito who used the surname
Suroza and who considered them as his parents as shown in his 1945 marriage
contract with Nenita de Vera (p. 15, Rollo of CA-G.R. No. 08654-R; p. 148, Rollo
of Testate Case showing that Agapito was 5 years old when Mauro married
Marcelina in 1923).
Mauro died in 1942. Marcelina, as a veteran's widow, became a pensioner of the
Federal Government. That explains why on her death she had accumulated some
cash in two banks.
Agapito and Nenita begot a child named Lilia who became a medical technologist
and went abroad. Agapito also became a soldier. He was disabled and his wife
Nenita was appointed as his guardian in 1953 when he was declared an
incompetent in Special Proceeding No. 1807 of the Court of First Instance of
Rizal, Pasig Branch I (p. 16, Rollo of CA-G.R. No. 08654-R).
In that connection, it should be noted that a woman named Arsenia de la Cruz
wanted also to be his guardian in another proceeding. Arsenia tried to prove that
Nenita was living separately from Agapito and that she (Nenita) admitted to
Marcelina that she was unfaithful to Agapito (pp. 61-63, Record of testate case).
Judge Bienvenido A. Tan dismissed the second guardianship proceeding and
confirmed Nenita's appointment as guardian of Agapito (p. 16, Rollo of CA case).
Agapito has been staying in a veteran's hospital in San Francisco or Palo Alto,
California (p. 87, Record).
On a date not indicated in the record, the spouses Antonio Sy and Hermogena

Talan begot a child named Marilyn Sy, who, when a few days old, was entrusted to
Arsenia de la Cruz (apparently a girl friend of Agapito) and who was later delivered
to Marcelina Salvador Suroza who brought her up as a supposed daughter of
Agapito and as her granddaughter (pp. 23-26, Rollo of CA-G.R. No.SP-08654-R).
Marilyn used the surname Suroza. She stayed with Marcelina but was not legally
adopted by Agapito. She married Oscar Medrano and is residing at 7666 J.B.
Roxas Street, Makati, apparently a neighbor of Marina Paje, a resident of 7668
J.B. Roxas Street.
Marcelina supposedly executed a notarial will in Manila on July 23, 1973, when
she was 73 years old. That will which is in English was thumbmarked by her. She
was illiterate. Her letters in English to the Veterans Administration were also
thumbmarked by her (pp. 38-39, CA Rollo). In that wig, Marcelina bequeathed all
her estate to her supposed granddaughter Marilyn.
Marcelina died on November 15, 1974 at the Veterans Hospital in Quezon City. At
the time of her death, she was a resident of 7374 San Maximo Street, Olimpia,
Makati, Rizal. She owned a 150-square meter lot and house in that place. She
acquired the lot in 1966 (p. 134, Record of testate case).
On January 13, 1975, Marina Paje, alleged to be a laundrywoman of Marcelina (P.
97, CA Rollo) and the executrix in her will (the alternate executrix was Juanita
Macaraeg, mother of Oscar, Marilyn's husband), filed with the Court of First
Instance of Rizal, Pasig Branch 25, a petition for the probate of Marcelina's
alleged will. The case was assigned to Judge Reynaldo P. Honrado.
As there was no opposition, Judge Honrado commissioned his deputy clerk of
court, Evangeline S. Yuipco, to hear the evidence. The transcripts of the
stenographic notes taken at the hearing before the deputy clerk of court are not in
the record.
In an order dated March 31, 1975, Judge Honrado appointed Marina as
administratrix. On the following day, April 1, Judge Honrado issued two orders
directing the Merchants Banking Corporation and the Bank of America to allow
Marina to withdraw the sum of P10,000 from the savings accounts of Marcelina S.
Suroza and Marilyn Suroza and requiring Corazon Castro, the custodian of the
passbooks, to deliver them to Marina.
Upon motion of Marina, Judge Honrado issued another order dated April 11, 1975,
instructing a deputy sheriff to eject the occupants of the testatrix's house, among
whom was Nenita V. Suroza, and to place Marina in possession thereof.

That order alerted Nenita to the existence of the testamentary proceeding for the
settlement of Marcelina's estate. She and the other occupants of the decedent's
house filed on April 18 in the said proceeding a motion to set aside the order of
April 11 ejecting them. They alleged that the decedent's son Agapito was the sole
heir of the deceased, that he has a daughter named Lilia, that Nenita was
Agapito's guardian and that Marilyn was not Agapito's daughter nor the decedent's
granddaughter (pp. 52-68, Record of testate case). Later, they questioned the
probate court's jurisdiction to issue the ejectment order.
In spite of the fact that Judge Honrado was already apprised that persons, other
than Marilyn, were claiming Marcelina's estate, he issued on April 23 an order
probating her supposed will wherein Marilyn was the instituted heiress (pp. 74-77,
Record).
On April 24, Nenita filed in the testate case an omnibus petition "to set aside
proceedings, admit opposition with counter-petition for administration and
preliminary injunction". Nenita in that motion reiterated her allegation that Marilyn
was a stranger to Marcelina, that the will was not duly executed and attested, that
it was procured by means of undue influence employed by Marina and Marilyn
and that the thumbmarks of the testatrix were procured by fraud or trick.
Nenita further alleged that the institution of Marilyn as heir is void because of the
preterition of Agapito and that Marina was not qualified to act as executrix (pp. 8391, Record).
To that motion was attached an affidavit of Zenaida A. Penaojas the housemaid of
Marcelina, who swore that the alleged will was falsified (p. 109, Record).
Not content with her motion to set aside the ejectment order (filed on April 18) and
her omnibus motion to set aside the proceedings (filed on April 24), Nenita filed
the next day, April 25, an opposition to the probate of the will and a counterpetition for letters of administration. In that opposition, Nenita assailed the due
execution of the will and stated the names and addresses of Marcelina's intestate
heirs, her nieces and nephews (pp. 113-121, Record). Nenita was not aware of the
decree of probate dated April 23, 1975.
To that opposition was attached an affidavit of Dominga Salvador Teodocio,
Marcelina's niece, who swore that Marcelina never executed a win (pp. 124-125,
Record).
Marina in her answer to Nenita's motion to set aside the proceedings admitted that
Marilyn was not Marcelina's granddaughter but was the daughter of Agapito and

Arsenia de la Cruz and that Agapito was not Marcelina's sonbut merely an anakanakan who was not legally adopted (p. 143, Record).
Judge Honrado in his order of July 17, 1975 dismissed Nenita's counter-petition
for the issuance of letters of administration because of the non-appearance of her
counsel at the hearing. She moved for the reconsideration of that order.
In a motion dated December 5, 1975, for the consolidation of all pending incidents,
Nenita V. Suroza reiterated her contention that the alleged will is void because
Marcelina did not appear before the notary and because it is written in English
which is not known to her (pp. 208-209, Record).
Judge Honrado in his order of June 8, 1976 "denied" the various incidents "raised"
by Nenita (p. 284, Record).
Instead of appealing from that order and the order probating the wig, Nenita "filed
a case to annul" the probate proceedings (p. 332, Record). That case, Civil Case
No. 24276, Suroza vs. Paje and Honrado (p. 398, Record), was also assigned to
Judge Honrado. He dismissed it in his order of February 16, 1977 (pp. 398-402,
Record).
Judge Honrado in his order dated December 22, 1977, after noting that the
executrix had delivered the estate to Marilyn, and that the estate tax had been
paid, closed the testamentary proceeding.
About ten months later, in a verified complaint dated October 12, 1978, filed in this
Court, Nenita charged Judge Honrado with having probated the fraudulent will of
Marcelina. The complainant reiterated her contention that the testatrix was
illiterate as shown by the fact that she affixed her thumbmark to the will and that
she did not know English, the language in which the win was written. (In the
decree of probate Judge Honrado did not make any finding that the will was
written in a language known to the testatrix.)
Nenita further alleged that Judge Honrado, in spite of his knowledge that the
testatrix had a son named Agapito (the testatrix's supposed sole compulsory and
legal heir), who was preterited in the will, did not take into account the
consequences of such a preterition.
Nenita disclosed that she talked several times with Judge Honrado and informed
him that the testatrix did not know the executrix Marina Paje, that the beneficiary's
real name is Marilyn Sy and that she was not the next of kin of the testatrix.

Nenita denounced Judge Honrado for having acted corruptly in allowing Marina
and her cohorts to withdraw from various banks the deposits Marcelina.
She also denounced Evangeline S. Yuipco, the deputy clerk of court, for not giving
her access to the record of the probate case by alleging that it was useless for
Nenita to oppose the probate since Judge Honrado would not change his
decision. Nenita also said that Evangeline insinuated that if she (Nenita) had ten
thousand pesos, the case might be decided in her favor. Evangeline allegedly
advised Nenita to desist from claiming the properties of the testatrix because she
(Nenita) had no rights thereto and, should she persist, she might lose her pension
from the Federal Government.
Judge Honrado in his brief comment did not deal specifically with the allegations
of the complaint. He merely pointed to the fact that Nenita did not appeal from the
decree of probate and that in a motion dated July 6, 1976 she asked for a thirty
day period within which to vacate the house of the testatrix.
Evangeline S. Yuipco in her affidavit said that she never talked with Nenita and
that the latter did not mention Evangeline in her letter dated September 11, 1978
to President Marcos.
Evangeline branded as a lie Nenita's imputation that she (Evangeline) prevented
Nenita from having access to the record of the testamentary proceeding.
Evangeline was not the custodian of the record. Evangeline " strongly, vehemently
and flatly denied" Nenita's charge that she (Evangeline) said that the sum of ten
thousand pesos was needed in order that Nenita could get a favorable decision.
Evangeline also denied that she has any knowledge of Nenita's pension from the
Federal Government.
The 1978 complaint against Judge Honorado was brought to attention of this
Court in the Court Administrator's memorandum of September 25, 1980. The case
was referred to Justice Juan A. Sison of the Court of Appeals for investigation,
report and recommendation. He submitted a report dated October 7, 1981.
On December 14, 1978, Nenita filed in the Court of Appeals against Judge
Honrado a petition for certiorari and prohibition wherein she prayed that the will,
the decree of probate and all the proceedings in the probate case be declared
void.
Attached to the petition was the affidavit of Domingo P. Aquino, who notarized the
will. He swore that the testatrix and the three attesting witnesses did not appear
before him and that he notarized the will "just to accommodate a brother lawyer

on the condition" that said lawyer would bring to the notary the testatrix and the
witnesses but the lawyer never complied with his commitment.
The Court of Appeals dismissed the petition because Nenita's remedy was an
appeal and her failure to do so did not entitle her to resort to the special civil action
of certiorari (Suroza vs. Honrado, CA-G.R. No. SP-08654, May 24, 1981).
Relying on that decision, Judge Honrado filed on November 17, 1981 a motion to
dismiss the administrative case for having allegedly become moot and academic.
We hold that disciplinary action should be taken against respondent judge for his
improper disposition of the testate case which might have resulted in a
miscarriage of justice because the decedent's legal heirs and not the instituted
heiress in the void win should have inherited the decedent's estate.
A judge may be criminally liable or knowingly rendering an unjust judgment or
interlocutory order or rendering a manifestly unjust judgment or interlocutory order
by reason of inexcusable negligence or ignorance (Arts. 204 to 206, Revised
Penal Code).
Administrative action may be taken against a judge of the court of first instance for
serious misconduct or inefficiency ( Sec. 67, Judiciary Law). Misconduct implies
malice or a wrongful intent, not a mere error of judgment. "For serious misconduct
to exist, there must be reliable evidence showing that the judicial acts complained
of were corrupt or inspired by an intention to violate the law, or were in persistent
disregard of well-known legal rules" (In relmpeachment of Horrilleno, 43 Phil. 212,
214-215).
Inefficiency implies negligence, incompetence, ignorance and carelessness. A
judge would be inexcusably negligent if he failed to observe in the performance of
his duties that diligence, prudence and circumspection which the law requires in
the rendition of any public service (In re Climaco, Adm. Case No. 134-J, Jan. 21,
1974, 55 SCRA 107, 119).
In this case, respondent judge, on perusing the will and noting that it was written in
English and was thumbmarked by an obviously illiterate testatrix, could have
readily perceived that the will is void.
In the opening paragraph of the will, it was stated that English was a language
"understood and known" to the testatrix. But in its concluding paragraph, it was
stated that the will was read to the testatrix "and translated into Filipino language".
(p. 16, Record of testate case). That could only mean that the will was written in a

language not known to the illiterate testatrix and, therefore, it is void because of
the mandatory provision of article 804 of the Civil Code that every will must be
executed in a language or dialect known to the testator. Thus, a will written in
English, which was not known to the Igorot testator, is void and was disallowed
(Acop vs. Piraso, 52 Phil. 660).
The hasty preparation of the will is shown in the attestation clause and notarial
acknowledgment where Marcelina Salvador Suroza is repeatedly referred to as
the "testator" instead of "testatrix".
Had respondent judge been careful and observant, he could have noted not only
the anomaly as to the language of the will but also that there was something
wrong in instituting the supposed granddaughter as sole heiress and giving
nothing at all to her supposed father who was still alive.
Furthermore, after the hearing conducted by respondent deputy clerk of court,
respondent judge could have noticed that the notary was not presented as a
witness.
In spite of the absence of an opposition, respondent judge should have personally
conducted the hearing on the probate of the will so that he could have ascertained
whether the will was validly executed.
Under the circumstances, we find his negligence and dereliction of duty to be
inexcusable.
WHEREFORE, for inefficiency in handling the testate case of Marcelina S.
Suroza, a fine equivalent to his salary for one month is imposed on respondent
judge (his compulsory retirement falls on December 25, 1981).
The case against respondent Yuipco has become moot and academic because
she is no longer employed in the judiciary. Since September 1, 1980 she has been
assistant city fiscal of Surigao City. She is beyond this Court's disciplinary
jurisdiction (Peralta vs. Firm Adm. Matter No. 2044-CFI November 21, 1980, 101
SCRA 225).

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO


GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.

This is an appeal from a decision of the Court of Appeals disallowing the will of
Antero Mercado dated January 3, 1943. The will is written in the Ilocano dialect
and contains the following attestation clause:
We, the undersigned, by these presents to declare that the foregoing testament of
Antero Mercado was signed by himself and also by us below his name and of this
attestation clause and that of the left margin of the three pages thereof. Page
three the continuation of this attestation clause; this will is written in Ilocano dialect
which is spoken and understood by the testator, and it bears the corresponding
number in letter which compose of three pages and all them were signed in the
presence of the testator and witnesses, and the witnesses in the presence of the
testator and all and each and every one of us witnesses.
In testimony, whereof, we sign this statement, this the third day of January, one
thousand nine hundred forty three, (1943) A.D.
(Sgd.) NUMERIANO EVANGELISTA
(Sgd.) "ROSENDA CORTES
(Sgd.) BIBIANA ILLEGIBLE

The will appears to have been signed by Atty. Florentino Javier who wrote the
name of Antero Mercado, followed below by "A reugo del testator" and the name
of Florentino Javier. Antero Mercado is alleged to have written a cross immediately
after his name. The Court of Appeals, reversing the judgement of the Court of First
Instance of Ilocos Norte, ruled that the attestation clause failed (1) to certify that
the will was signed on all the left margins of the three pages and at the end of the
will by Atty. Florentino Javier at the express request of the testator in the presence
of the testator and each and every one of the witnesses; (2) to certify that after the
signing of the name of the testator by Atty. Javier at the former's request said
testator has written a cross at the end of his name and on the left margin of the
three pages of which the will consists and at the end thereof; (3) to certify that the
three witnesses signed the will in all the pages thereon in the presence of the
testator and of each other.
In our opinion, the attestation clause is fatally defective for failing to state that
Antero Mercado caused Atty. Florentino Javier to write the testator's name under
his express direction, as required by section 618 of the Code of Civil Procedure.
The herein petitioner (who is appealing by way of certiorari from the decision of

the Court of Appeals) argues, however, that there is no need for such recital
because the cross written by the testator after his name is a sufficient signature
and the signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is
that the cross is as much a signature as a thumbmark, the latter having been held
sufficient by this Court in the cases of De Gala vs. Gonzales and Ona, 53 Phil.,
104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs.
Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.
It is not here pretended that the cross appearing on the will is the usual signature
of Antero Mercado or even one of the ways by which he signed his name. After
mature reflection, we are not prepared to liken the mere sign of the cross to a
thumbmark, and the reason is obvious. The cross cannot and does not have the
trustworthiness of a thumbmark.
What has been said makes it unnecessary for us to determine there is a sufficient
recital in the attestation clause as to the signing of the will by the testator in the
presence of the witnesses, and by the latter in the presence of the testator and of
each other.
Wherefore, the appealed decision is hereby affirmed, with against the petitioner.
So ordered.
FELIX
AZUELA,
Petitioner,
vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO
G. CASTILLO, Respondents.
The core of this petition is a highly defective notarial will, purportedly executed by
Eugenia E. Igsolo (decedent), who died on 16 December 1982 at the age of 80. In
refusing to give legal recognition to the due execution of this document, the Court
is provided the opportunity to assert a few important doctrinal rules in the
execution of notarial wills, all self-evident in view of Articles 805 and 806 of the
Civil Code.
A will whose attestation clause does not contain the number of pages on
which the will is written is fatally defective. A will whose attestation clause is
not signed by the instrumental witnesses is fatally defective. And perhaps
most importantly, a will which does not contain an acknowledgment, but a
mere jurat, is fatally defective. Any one of these defects is sufficient to deny
probate. A notarial will with all three defects is just aching for judicial
rejection.

There is a distinct and consequential reason the Civil Code provides a


comprehensive catalog of imperatives for the proper execution of a notarial will.
Full and faithful compliance with all the detailed requisites under Article 805 of the
Code leave little room for doubt as to the validity in the due execution of the
notarial will. Article 806 likewise imposes another safeguard to the validity of
notarial wills that they be acknowledged before a notary public by the testator
and the witnesses. A notarial will executed with indifference to these two codal
provisions opens itself to nagging questions as to its legitimacy.
The case stems from a petition for probate filed on 10 April 1984 with the Regional
Trial Court (RTC) of Manila. The petition filed by petitioner Felix Azuela sought to
admit to probate the notarial will of Eugenia E. Igsolo, which was notarized on 10
June 1981. Petitioner is the son of the cousin of the decedent.
The will, consisting of two (2) pages and written in the vernacular Pilipino, read in
full:
HULING HABILIN NI EUGENIA E. IGSOLO
SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila,
pitongput siyam (79) na gulang, nasa hustong pagi-isip, pag-unawa at memoria ay
nag-hahayag na ito na ang aking huling habilin at testamento, at binabali wala ko
lahat ang naunang ginawang habilin o testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sangayong sa kaugalian at patakaran ng simbahang katoliko at ang taga-pag-ingat
(Executor) ng habiling ito ay magtatayo ng bantayog upang silbing ala-ala sa akin
ng aking pamilya at kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking
pamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa mahabang
panahon, yaong mga bahay na nakatirik sa lote numero 28, Block 24 at
nakapangalan sa Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng
karapatan sa bahay na nakatirik sa inoopahan kong lote, numero 43, Block 24 na
pag-aari ng Pechaten Corporation. Ipinagkakaloob kong buong buo ang lahat ng
karapatan sa bahay at lupa na nasa 500 San Diego St., Lot 42, Block 24,
Sampaloc, Manila kay Felix Azuela at ang pagkakaloob kong ito ay walang
pasubalit at kondiciones;
Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng

huling habiling ito at kagustuhan ko rin na hindi na kailanman siyang mag-lagak


ng piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981.
(Sgd.)
EUGENIA
(Tagapagmana)

E.

IGSOLO

PATUNAY NG MGA SAKSI


Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na
ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling
Habilin, ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana
sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawat dahon,
sa harap ng lahat at bawat sa amin, at kami namang mga saksi ay lumagda sa
harap ng nasabing tagapagmana at sa harap ng lahat at bawat isa sa amin, sa
ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawat dahon ng
kasulatan ito.
EUGENIA
E.
address:
500
Sampaloc,
Manila
Res.
Issued at Manila on March 10, 1981.

IGSOLO
San
Diego
Cert.
No.

QUIRINO
address:
1228-Int.
Pandacan,
Manila
Res.
Issued at Manila on Jan. 21, 1981

AGRAVA
3,
Cert.

No.

LAMBERTO
C.
LEAO
address:
Avenue
2,
Blcok
Lot
61,
San
Gabriel,
G.MA.,
Cavite
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981
JUANITO
ESTRERA
address:
City
Court
City
of
Manila
Res.
Cert.
Issued at Manila on March 2, 1981.

No.

St.
A-7717-37

Kahilum
A-458365

7,
Res.

Compound,
A574829

Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng


Maynila.

(Sgd.)
PETRONIO Y. BAUTISTA
Doc.
No.
1232
Page
No.
86
;
Book
No.
43
Series of 1981 TAN # 1437-977-81

;
Until
;

NOTARIO
PUBLIKO
Dec.
31,
1981
PTR-152041-1/2/81-Manila

The three named witnesses to the will affixed their signatures on the left-hand
margin of both pages of the will, but not at the bottom of the attestation clause.
The probate petition adverted to only two (2) heirs, legatees and devisees of the
decedent, namely: petitioner himself, and one Irene Lynn Igsolo, who was alleged
to have resided abroad. Petitioner prayed that the will be allowed, and that letters
testamentary be issued to the designated executor, Vart Prague.
The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who
represented herself as the attorney-in-fact of "the 12 legitimate heirs" of the
decedent.2 Geralda Castillo claimed that the will is a forgery, and that the true
purpose of its emergence was so it could be utilized as a defense in several court
cases filed by oppositor against petitioner, particularly for forcible entry and
usurpation of real property, all centering on petitioners right to occupy the
properties of the decedent.3 It also asserted that contrary to the representations of
petitioner, the decedent was actually survived by 12 legitimate heirs, namely her
grandchildren, who were then residing abroad. Per records, it was subsequently
alleged that decedent was the widow of Bonifacio Igsolo, who died in 1965, 4 and
the mother of a legitimate child, Asuncion E. Igsolo, who predeceased her mother
by three (3) months.5
Oppositor Geralda Castillo also argued that the will was not executed and attested
to in accordance with law. She pointed out that decedents signature did not
appear on the second page of the will, and the will was not properly
acknowledged. These twin arguments are among the central matters to this
petition.
After due trial, the RTC admitted the will to probate, in an Order dated 10 August
1992.6 The RTC favorably took into account the testimony of the three (3)
witnesses to the will, Quirino Agrava, Lamberto Leano, and Juanito Estrada. The
RTC also called to fore "the modern tendency in respect to the formalities in the
execution of a will x x x with the end in view of giving the testator more freedom in
expressing his last wishes;"7 and from this perspective, rebutted oppositors
arguments that the will was not properly executed and attested to in accordance

with law.
After a careful examination of the will and consideration of the testimonies of the
subscribing and attesting witnesses, and having in mind the modern tendency in
respect to the formalities in the execution of a will, i.e., the liberalization of the
interpretation of the law on the formal requirements of a will with the end in view of
giving the testator more freedom in expressing his last wishes, this Court is
persuaded to rule that the will in question is authentic and had been executed by
the testatrix in accordance with law.
On the issue of lack of acknowledgement, this Court has noted that at the end of
the will after the signature of the testatrix, the following statement is made under
the sub-title, "Patunay Ng Mga Saksi":
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na
ipinahayag sa amin ni Eugenia N. Igsolo, tagapagmana na siya niyang Huling
Habilin, ngayong ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana
sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawat dahon,
sa harap ng lahat at bawat sa amin, at kami namang mga saksi ay lumagda sa
harap ng nasabing tagapagmana at sa harap ng lahat at bawat isa sa amin, sa
ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawat dahon ng
kasulatan ito."
The aforequoted declaration comprises the attestation clause and the
acknowledgement and is considered by this Court as a substantial compliance
with the requirements of the law.
On the oppositors contention that the attestation clause was not signed by the
subscribing witnesses at the bottom thereof, this Court is of the view that the
signing by the subscribing witnesses on the left margin of the second page of the
will containing the attestation clause and acknowledgment, instead of at the
bottom thereof, substantially satisfies the purpose of identification and attestation
of the will.
With regard to the oppositors argument that the will was not numbered
correlatively in letters placed on upper part of each page and that the attestation
did not state the number of pages thereof, it is worthy to note that the will is
composed of only two pages. The first page contains the entire text of the
testamentary dispositions, and the second page contains the last portion of the
attestation clause and acknowledgement. Such being so, the defects are not of a
serious nature as to invalidate the will. For the same reason, the failure of the
testatrix to affix her signature on the left margin of the second page, which

contains only the last portion of the attestation clause and acknowledgment is not
a fatal defect.
As regards the oppositors assertion that the signature of the testatrix on the will is
a forgery, the testimonies of the three subscribing witnesses to the will are
convincing enough to establish the genuineness of the signature of the testatrix
and the due execution of the will.8
The Order was appealed to the Court of Appeals by Ernesto Castillo, who had
substituted his since deceased mother-in-law, Geralda Castillo. In a Decision
dated 17 August 1995, the Court of Appeals reversed the trial court and ordered
the dismissal of the petition for probate.9 The Court of Appeals noted that the
attestation clause failed to state the number of pages used in the will, thus
rendering the will void and undeserving of probate. 10
Hence, the present petition.
Petitioner argues that the requirement under Article 805 of the Civil Code that "the
number of pages used in a notarial will be stated in the attestation clause" is
merely directory, rather than mandatory, and thus susceptible to what he termed
as "the substantial compliance rule."11
The solution to this case calls for the application of Articles 805 and 806 of the
Civil Code, which we replicate in full.
Art. 805. Every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testator's name written by some other
person in his presence, and by his express direction, and attested and subscribed
by three or more credible witnesses in the presence of the testator and of one
another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and every
page thereof, except the last, on the left margin, and all the pages shall be
numbered correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written,
and the fact that the testator signed the will and every page thereof, or caused
some other person to write his name, under his express direction, in the presence
of the instrumental witnesses, and that the latter witnessed and signed the will and
all the pages thereof in the presence of the testator and of one another.

If the attestation clause is in a language not known to the witnesses, it shall be


interpreted to them.
Art. 806. Every will must be acknowledged before a notary public by the testator
and the witnesses. The notary public shall not be required to retain a copy of the
will, or file another with the office of the Clerk of Court.
The appellate court, in its Decision, considered only one defect, the failure of the
attestation clause to state the number of pages of the will. But an examination of
the will itself reveals several more deficiencies.
As admitted by petitioner himself, the attestation clause fails to state the number
of pages of the will.12 There was an incomplete attempt to comply with this
requisite, a space having been allotted for the insertion of the number of pages in
the attestation clause. Yet the blank was never filled in; hence, the requisite was
left uncomplied with.
The Court of Appeals pounced on this defect in reversing the trial court, citing in
the process Uy Coque v. Navas L. Sioca 13 and In re: Will of Andrada.14 In Uy
Coque, the Court noted that among the defects of the will in question was the
failure of the attestation clause to state the number of pages contained in the will. 15
In ruling that the will could not be admitted to probate, the Court made the
following consideration which remains highly relevant to this day: "The purpose of
requiring the number of sheets to be stated in the attestation clause is obvious;
the document might easily be so prepared that the removal of a sheet would
completely change the testamentary dispositions of the will and in the
absence of a statement of the total number of sheets such removal might be
effected by taking out the sheet and changing the numbers at the top of the
following sheets or pages. If, on the other hand, the total number of sheets is
stated in the attestation clause the falsification of the document will involve the
inserting of new pages and the forging of the signatures of the testator and
witnesses in the margin, a matter attended with much greater difficulty." 16
The case of In re Will of Andrada concerned a will the attestation clause of which
failed to state the number of sheets or pages used. This consideration alone was
sufficient for the Court to declare "unanim[ity] upon the point that the defect
pointed out in the attesting clause is fatal." 17 It was further observed that "it cannot
be denied that the x x x requirement affords additional security against the danger
that the will may be tampered with; and as the Legislature has seen fit to prescribe
this requirement, it must be considered material." 18
Against these cited cases, petitioner cites Singson v. Florentino19 and Taboada v.

Hon. Rosal,20 wherein the Court allowed probate to the wills concerned therein
despite the fact that the attestation clause did not state the number of pages of the
will. Yet the appellate court itself considered the import of these two cases, and
made the following distinction which petitioner is unable to rebut, and which we
adopt with approval:
Even a cursory examination of the Will (Exhibit "D"), will readily show that the
attestation does not state the number of pages used upon which the will is written.
Hence, the Will is void and undeserving of probate.
We are not impervious of the Decisions of the Supreme Court in "Manuel Singson
versus Emilia Florentino, et al., 92 Phil. 161 and Apolonio [Taboada] versus Hon.
Avelino Rosal, et al., 118 SCRA 195," to the effect that a will may still be valid
even if the attestation does not contain the number of pages used upon which the
Will is written. However, the Decisions of the Supreme Court are not applicable in
the aforementioned appeal at bench. This is so because, in the case of "Manuel
Singson versus Emilia Florentino, et al., supra," although the attestation in the
subject Will did not state the number of pages used in the will, however, the same
was found in the last part of the body of the Will:
"x x x
The law referred to is article 618 of the Code of Civil Procedure, as amended by
Act No. 2645, which requires that the attestation clause shall state the number of
pages or sheets upon which the will is written, which requirement has been held to
be mandatory as an effective safeguard against the possibility of interpolation or
omission of some of the pages of the will to the prejudice of the heirs to whom the
property is intended to be bequeathed (In re Will of Andrada, 42 Phil. 180; Uy
Coque vs. Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50 Phil. 30; Quinto
vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio
decidendi of these cases seems to be that the attestation clause must contain a
statement of the number of sheets or pages composing the will and that if this is
missing or is omitted, it will have the effect of invalidating the will if the deficiency
cannot be supplied, not by evidence aliunde, but by a consideration or
examination of the will itself. But here the situation is different. While the
attestation clause does not state the number of sheets or pages upon which the
will is written, however, the last part of the body of the will contains a statement
that it is composed of eight pages, which circumstance in our opinion takes this
case out of the rigid rule of construction and places it within the realm of similar
cases where a broad and more liberal view has been adopted to prevent the will of
the testator from being defeated by purely technical considerations." (page 165165, supra) (Underscoring supplied)

In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial
acknowledgement in the Will states the number of pages used in the:
"x x x
We have examined the will in question and noticed that the attestation clause
failed to state the number of pages used in writing the will. This would have been a
fatal defect were it not for the fact that, in this case, it is discernible from the entire
will that it is really and actually composed of only two pages duly signed by the
testatrix and her instrumental witnesses. As earlier stated, the first page which
contains the entirety of the testamentary dispositions is signed by the testatrix at
the end or at the bottom while the instrumental witnesses signed at the left margin.
The other page which is marked as "Pagina dos" comprises the attestation clause
and the acknowledgment. The acknowledgment itself states that "this Last Will
and Testament consists of two pages including this page" (pages 200-201, supra)
(Underscoring supplied).
However, in the appeal at bench, the number of pages used in the will is not
stated in any part of the Will. The will does not even contain any notarial
acknowledgment wherein the number of pages of the will should be stated. 21
Both Uy Coque and Andrada were decided prior to the enactment of the Civil
Code in 1950, at a time when the statutory provision governing the formal
requirement of wills was Section
618 of the Code of Civil Procedure. 22 Reliance on these cases remains apropos,
considering that the requirement that the attestation state the number of pages of
the will is extant from Section 618. 23 However, the enactment of the Civil Code in
1950 did put in force a rule of interpretation of the requirements of wills, at least
insofar as the attestation clause is concerned, that may vary from the philosophy
that governed these two cases. Article 809 of the Civil Code states: "In the
absence of bad faith, forgery, or fraud, or undue and improper pressure and
influence, defects and imperfections in the form of attestation or in the language
used therein shall not render the will invalid if it is proved that the will was in fact
executed and attested in substantial compliance with all the requirements of article
805."
In the same vein, petitioner cites the report of the Civil Code Commission, which
stated that "the underlying and fundamental objective permeating the provisions
on the [law] on [wills] 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. This objective is in accord with the [modern tendency]

in respect to the formalities in the execution of wills." 24 However, petitioner


conveniently omits the qualification offered by the Code Commission in the very
same paragraph he cites from their report, that such liberalization be "but with
sufficient safeguards and restrictions to prevent the commission of fraud and the
exercise of undue and improper pressure and influence upon the testator." 25
Caneda v. Court of Appeals26 features an extensive discussion made by Justice
Regalado, speaking for the Court on the conflicting views on the manner of interpretation
of the legal formalities required in the execution of the attestation clause in wills. 27 Uy
Coque and Andrada are cited therein, along with several other cases, as examples of the
application of the rule of strict construction.28 However, the Code Commission opted to
recommend a more liberal construction through the "substantial compliance rule" under
Article 809. A cautionary note was struck though by Justice J.B.L. Reyes as to how Article
809 should be applied:
x x x The rule must be limited to disregarding those defects that can be supplied
by an examination of the will itself: whether all the pages are consecutively
numbered; whether the signatures appear in each and every page; whether the
subscribing witnesses are three or the will was notarized. All these are facts that
the will itself can reveal, and defects or even omissions concerning them in the
attestation clause can be safely disregarded. But the total number of pages,
and whether all persons required to sign did so in the presence of each
other must substantially appear in the attestation clause, being the only
check against perjury in the probate proceedings.29 (Emphasis supplied.)
The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its
assailed decision, considering that the failure to state the number of pages of the
will in the attestation clause is one of the defects which cannot be simply
disregarded. In Caneda itself, the Court refused to allow the probate of a will
whose attestation clause failed to state that the witnesses subscribed their
respective signatures to the will in the presence of the testator and of each other, 30
the other omission cited by Justice J.B.L. Reyes which to his estimation cannot be
lightly disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that
omission which can be supplied by an examination of the will itself, without the
need of resorting to extrinsic evidence, will not be fatal and, correspondingly,
would not obstruct the allowance to probate of the will being assailed. However,
those omissions which cannot be supplied except by evidence aliunde would
result in the invalidation of the attestation clause and ultimately, of the will itself." 31
Thus, a failure by the attestation clause to state that the testator signed every
page can be liberally construed, since that fact can be checked by a visual

examination; while a failure by the attestation clause to state that the witnesses
signed in one anothers presence should be considered a fatal flaw since the
attestation is the only textual guarantee of compliance. 32
The failure of the attestation clause to state the number of pages on which the will
was written remains a fatal flaw, despite Article 809. The purpose of the law in
requiring the clause to state the number of pages on which the will is written is to
safeguard against possible interpolation or omission of one or some of its pages
and to prevent any increase or decrease in the pages. 33 The failure to state the
number of pages equates with the absence of an averment on the part of the
instrumental witnesses as to how many pages consisted the will, the execution of
which they had ostensibly just witnessed and subscribed to. Following Caneda,
there is substantial compliance with this requirement if the will states elsewhere in
it how many pages it is comprised of, as was the situation in Singson and
Taboada. However, in this case, there could have been no substantial compliance
with the requirements under Article 805 since there is no statement in the
attestation clause or anywhere in the will itself as to the number of pages which
comprise the will.
At the same time, Article 809 should not deviate from the need to comply with the
formal requirements as enumerated under Article 805. Whatever the inclinations of
the members of the Code Commission in incorporating Article 805, the fact
remains that they saw fit to prescribe substantially the same formal requisites as
enumerated in Section 618 of the Code of Civil Procedure, convinced that these
remained effective safeguards against the forgery or intercalation of notarial
wills.34 Compliance with these requirements, however picayune in impression,
affords the public a high degree of comfort that the testator himself or herself had
decided to convey property post mortem in the manner established in the will. 35
The transcendent legislative intent, even as expressed in the cited
comments of the Code Commission, is for the fruition of the testators
incontestable desires, and not for the indulgent admission of wills to
probate.
The Court could thus end here and affirm the Court of Appeals. However, an
examination of the will itself reveals a couple of even more critical defects that
should necessarily lead to its rejection.
For one, the attestation clause was not signed by the instrumental
witnesses. While the signatures of the instrumental witnesses appear on the lefthand margin of the will, they do not appear at the bottom of the attestation clause
which after all consists of their averments before the notary public.

Cagro v. Cagro36 is material on this point. As in this case, "the signatures of the
three witnesses to the will do not appear at the bottom of the attestation clause,
although the page containing the same is signed by the witnesses on the left-hand
margin."37 While three (3) Justices38 considered the signature requirement had
been substantially complied with, a majority of six (6), speaking through Chief
Justice Paras, ruled that the attestation clause had not been duly signed,
rendering the will fatally defective.
There is no question that the signatures of the three witnesses to the will do not
appear at the bottom of the attestation clause, although the page containing the
same is signed by the witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The
attestation clause is "a memorandum of the facts attending the execution of the
will" required by law to be made by the attesting witnesses, and it must
necessarily bear their signatures. An unsigned attestation clause cannot be
considered as an act of the witnesses, since the omission of their signatures at the
bottom thereof negatives their participation.
The petitioner and appellee contends that signatures of the three witnesses on the
left-hand margin conform substantially to the law and may be deemed as their
signatures to the attestation clause. This is untenable, because said signatures
are in compliance with the legal mandate that the will be signed on the left-hand
margin of all its pages. If an attestation clause not signed by the three witnesses
at the bottom thereof, be admitted as sufficient, it would be easy to add such
clause to a will on a subsequent occasion and in the absence of the testator and
any or all of the witnesses.39
The Court today reiterates the continued efficacy of Cagro. Article 805 particularly
segregates the requirement that the instrumental witnesses sign each page of the
will, from the requisite that the will be "attested and subscribed by [the
instrumental witnesses]." The respective intents behind these two classes of
signature are distinct from each other. The signatures on the left-hand corner of
every page signify, among others, that the witnesses are aware that the page they
are signing forms part of the will. On the other hand, the signatures to the
attestation clause establish that the witnesses are referring to the statements
contained in the attestation clause itself. Indeed, the attestation clause is separate
and apart from the disposition of the will. An unsigned attestation clause results in
an unattested will. Even if the instrumental witnesses signed the left-hand margin
of the page containing the unsigned attestation clause, such signatures cannot
demonstrate these witnesses undertakings in the clause, since the signatures that
do appear on the page were directed towards a wholly different avowal.

The Court may be more charitably disposed had the witnesses in this case signed
the attestation clause itself, but not the left-hand margin of the page containing
such clause. Without diminishing the value of the instrumental witnesses
signatures on each and every page, the fact must be noted that it is the attestation
clause which contains the utterances reduced into writing of the testamentary
witnesses themselves. It is the witnesses, and not the testator, who are required
under Article 805 to state the number of pages used upon which the will is written;
the fact that the testator had signed the will and every page thereof; and that they
witnessed and signed the will and all the pages thereof in the presence of the
testator and of one another. The only proof in the will that the witnesses have
stated these elemental facts would be their signatures on the attestation clause.
Thus, the subject will cannot be considered to have been validly attested to by the
instrumental witnesses, as they failed to sign the attestation clause.
Yet, there is another fatal defect to the will on which the denial of this petition
should also hinge. The requirement under Article 806 that "every will must be
acknowledged before a notary public by the testator and the witnesses" has also
not been complied with. The importance of this requirement is highlighted by the
fact that it had been segregated from the other requirements under Article 805 and
entrusted into a separate provision, Article 806. The non-observance of Article 806
in this case is equally as critical as the other cited flaws in compliance with Article
805, and should be treated as of equivalent import.
In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote
"Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa
Lungsod ng Maynila."40 By no manner of contemplation can those words be
construed as an acknowledgment. An acknowledgment is the act of one who has
executed a deed in going before some competent officer or court and declaring it
to be his act or deed.41 It involves an extra step undertaken whereby the signor
actually declares to the notary that the executor of a document has attested to the
notary that the same is his/her own free act and deed.
It might be possible to construe the averment as a jurat, even though it does not
hew to the usual language thereof. A jurat is that part of an affidavit where the
notary certifies that before him/her, the document was subscribed and sworn to by
the executor.42 Ordinarily, the language of the jurat should avow that the document
was subscribed and sworn before the notary public, while in this case, the notary
public averred that he himself "signed and notarized" the document. Possibly
though, the word "ninotario" or "notarized" encompasses the signing of and
swearing in of the executors of the document, which in this case would involve the
decedent and the instrumental witnesses.

Yet even if we consider what was affixed by the notary public as a jurat, the will
would nonetheless remain invalid, as the express requirement of Article 806 is that
the will be "acknowledged", and not merely subscribed and sworn to. The will does
not present any textual proof, much less one under oath, that the decedent and
the instrumental witnesses executed or signed the will as their own free act or
deed. The acknowledgment made in a will provides for another all-important legal
safeguard against spurious wills or those made beyond the free consent of the
testator. An acknowledgement is not an empty meaningless act. 43 The
acknowledgment coerces the testator and the instrumental witnesses to declare
before an officer of the law that they had executed and subscribed to the will as
their own free act or deed. Such declaration is under oath and under pain of
perjury, thus allowing for the criminal prosecution of persons who participate in the
execution of spurious wills, or those executed without the free consent of the
testator. It also provides a further degree of assurance that the testator is of
certain mindset in making the testamentary dispositions to those persons he/she
had designated in the will.
It may not have been said before, but we can assert the rule, self-evident as it is
under Article 806. A notarial will that is not acknowledged before a notary
public by the testator and the witnesses is fatally defective, even if it is
subscribed and sworn to before a notary public.
There are two other requirements under Article 805 which were not fully satisfied
by the will in question. We need not discuss them at length, as they are no longer
material to the
disposition of this case. The provision requires that the testator and the
instrumental witnesses sign each and every page of the will on the left margin,
except the last; and that all the pages shall be numbered correlatively in letters
placed on the upper part of each page. In this case, the decedent, unlike the
witnesses, failed to sign both pages of the will on the left margin, her only
signature appearing at the so-called "logical end" 44 of the will on its first page.
Also, the will itself is not numbered correlatively in letters on each page, but
instead numbered with Arabic numerals. There is a line of thought that has
disabused the notion that these two requirements be construed as
mandatory.45Taken in isolation, these omissions, by themselves, may not be
sufficient to deny probate to a will. Yet even as these omissions are not decisive to
the adjudication of this case, they need not be dwelt on, though indicative as they
may be of a general lack of due regard for the requirements under Article 805 by
whoever executed the will.
All told, the string of mortal defects which the will in question suffers from makes

the probate denial inexorable.


WHEREFORE, the petition is DENIED. Costs against petitioner.