1
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 76714 June 2, 1994
SALUD TEODORO VDA. DE PEREZ, petitioner,
vs.
HON. ZOTICO A. TOLETE in his capacity as Presiding
Judge, Branch 18, RTC, Bulacan, respondent.
QUIASON, J.:
This is a petition for certiorari under Rule 65 of the
Revised Rules of Court to set aside the Order dated
November 19, 1986 of the Regional Trial Court, Branch
18, Bulacan presided by respondent Judge Zotico A.
Tolete, in Special Proceedings No. 1793-M.
We grant the petition.
II
Dr. Jose F. Cunanan and his wife, Dr. Evelyn Perez-
Cunanan, who became American citizens, established a
successful medical practice in New York, U.S.A. The
Cunanans lived at No. 2896 Citation Drive, Pompey,
Syracuse, New York, with their children, Jocelyn, 18;
Jacqueline, 16; and Josephine, 14.
On August 23, 1979, Dr. Cunanan executed a last will and
testament, bequeathing to his wife "all the remainder"
of his real and personal property at the time of his death
"wheresoever situated" (Rollo, p. 35). In the event he
would survive his wife, he bequeathed all his property to
his children and grandchildren with Dr. Rafael G.
Cunanan, Jr. as trustee. He appointed his wife as
executrix of his last will and testament and Dr. Rafael G.
Cunanan, Jr. as substitute executor. Article VIII of his
will states:
If my wife, EVELYN PEREZ-CUNANAN,
and I shall die under such circumstances
that there is not sufficient evidence to
determine the order of our deaths, then
it shall be presumed that I predeceased
her, and my estate shall be
administered and distributed, in all
respects, in accordance with such
presumption (Rollo, p. 41).
Four days later, on August 27, Dr. Evelyn P. Cunanan
executed her own last will and testament containing the
same provisions as that of the will of her husband. Article
VIII of her will states:
If my husband, JOSE F. CUNANAN, and I
shall die under such circumstances that
there is not sufficient evidence to
determine the order of our deaths, then
it shall be presumed that he
predeceased me, and my estate shall be
administered and distributed in all
respects, in accordance with such
presumption. (Rollo, p. 31).
On January 9, 1982, Dr. Cunanan and his entire family
perished when they were trapped by fire that gutted
their home. Thereafter, Dr. Rafael G. Cunanan, Jr. as
trustee and substitute executor of the two wills, filed
separate proceedings for the probate thereof with the
Surrogate Court of the County of Onondaga, New York.
On April 7, these two wills were admitted to probate and
letters testamentary were issued in his favor.
On February 21, 1983, Salud Teodoro Perez, the mother
of Dr. Evelyn P. Cunanan, and petitioner herein, filed
with the Regional P. Cunanan, and petitioner herein,
filed with the Regional Trial Court, Malolos, Bulacan a
petition for the reprobate of the two bills ancillary to the
probate proceedings in New York. She also asked that she
be appointed the special administratrix of the estate of
the deceased couple consisting primarily of a farm land
in San Miguel, Bulacan.
On March 9, the Regional Trial Court, Branch 16, Malolos,
Bulacan, presided by Judge Gualberto J. de la Llana,
issued an order, directing the issuance of letters of
special administration in favor of petitioner upon her
filing of a P10,000.00 bond. The following day, petitioner
posted the bond and took her oath as special
administration.
As her first act of administration, petitioner filed a
motion, praying that the Philippine Life Insurance
Company be directed to deliver the proceeds in the
amount of P50,000.00 of the life insurance policy taken
by Dr. Jose F. Cunanan with Dr. Evelyn Perez-Cunanan
and their daughter Jocelyn as beneficiaries. The trial
court granted the motion.
Counsel for the Philippine American Life Insurance
Company then filed a manifestation, stating that said
company then filed a manifestation, stating that said
company had delivered to petitioner the amount of
P49,765.85, representing the proceeds of the life
insurance policy of Dr. Jose F. Cunanan.
In a motion dated May 19, 1983, petitioner asked that Dr.
Rafael Cunanan, Sr. be ordered to deliver to her a
Philippine Trust Company passbook with P25,594.00 in
savings deposit, and the Family Savings Bank time
deposit certificates in the total amount of P12,412.52.
On May 31, Atty. Federico Alday filed a notice of
appearance as counsel for the heirs of Dr. Jose F.
Cunanan, namely, Dr. Rafael Cunanan, Sr., Priscilla
Cunanan Bautista, Lydia Cunanan Ignacio, Felipe F.
Cunanan and Loreto Cunanan Concepcion (Cunanan
heirs). He also manifested that before receiving
petitioner's motion of May 19, 1983, his clients were
unaware of the filing of the testate estate case and
therefore, "in the interest of simple fair play," they
should be notified of the proceedings (Records, p. 110).
He prayed for deferment of the hearing on the motions
of May 19, 1983.
Petitioner then filed a counter manifestation dated June
13, 1983, asserting: (1) that the "Cunanan collaterals are
neither heirs nor creditors of the late Dr. Jose F.
Cunanan" and therefore, they had "no legal or
proprietary interests to protect" and "no right to
intervene"; (2) that the wills of Dr. Jose F. Cunanan and
Dr. Evelyn Perez-Cunanan, being American citizens,
were executed in accordance with the solemnities and
formalities of New York laws, and produced "effects in
this jurisdiction in accordance with Art. 16 in relation to
Art. 816 of the Civil Code"; (3) that under Article VIII of
the two wills, it was presumed that the husband
predeceased the wife; and (4) that "the Cunanan
collaterals are neither distributees, legatees or
beneficiaries, much less, heirs as heirship is only by
institution" under a will or by operation of the law of New
York (Records, pp. 112-113).
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On June 23, the probate court granted petitioner's
motion of May 19, 1983. However, on July 21, the
Cunanan heirs filed a motion to nullify the proceedings
and to set aside the appointment of, or to disqualify,
petitioner as special administratrix of the estates of Dr.
Jose F. Cunanan and Dr. Evelyn Perez-Cunanan. The
motion stated: (1) that being the "brothers and sisters
and the legal and surviving heirs" of Dr. Jose F. Cunanan,
they had been "deliberately excluded" in the petition for
the probate of the separate wills of the Cunanan spouses
thereby misleading the Bulacan court to believe that
petitioner was the sole heir of the spouses; that such
"misrepresentation" deprived them of their right to "due
process in violation of Section 4, Rule 76 of the Revised
Rules of Court; (2) that Dr. Rafael G. Cunanan, Jr., the
executor of the estate of the Cunanan spouses, was
likewise not notified of the hearings in the Bulacan court;
(3) that the "misrepresentation and concealment
committed by" petitioner rendered her unfit to be a
special administratrix; (4) that Dr. Rafael G. Cunanan,
Jr. had, by virtue of a verified power of attorney,
authorized his father,
Dr. Rafael Cunanan, Sr., to be his attorney-in-fact; and
(5) that Dr. Rafael Cunanan, Sr. is qualified to be a
regular administrator "as practically all of the subject
estate in the Philippines belongs to their brother, Dr.
Jose F. Cunanan" (Records, pp. 118-122). Hence, they
prayed: (1) that the proceedings in the case be declared
null and void; (2) that the appointment of petitioner as
special administratrix be set aside; and (3) that Dr.
Rafael Cunanan, Sr. be appointed the regular
administrator of the estate of the deceased spouses.
Thereafter, the Cunanan heirs filed a motion requiring
petitioner to submit an inventory or accounting of all
monies received by her in trust for the estate.
In her opposition, petitioner asserted: (1) that she was
the "sole and only heir" of her daughter, Dr. Evelyn
Perez-Cunanan to the exclusion of the "Cunanan
collaterals"; hence they were complete strangers to the
proceedings and were not entitled to notice; (2) that she
could not have "concealed" the name and address of Dr.
Rafael G. Cunanan, Jr. because his name was
prominently mentioned not only in the two wills but also
in the decrees of the American surrogate court; (3) that
the rule applicable to the case is Rule 77, not Rule 76,
because it involved the allowance of wills proved outside
of the Philippines and that nowhere in Section 2 of Rule
77 is there a mention of notice being given to the
executor who, by the same provision, should himself file
the necessary ancillary proceedings in this country; (4)
that even if the Bulacan estate came from the "capital"
of Dr. Jose F. Cunanan, he had willed all his worldly
goods to his wife and nothing to his brothers and sisters;
and (5) that Dr. Rafael G. Cunanan, Jr. had unlawfully
disbursed $215,000.00 to the Cunanan heirs,
misappropriated $15,000.00 for himself and irregularly
assigned assets of the estates to his American lawyer
(Records, pp. 151-160).
In their reply, the Cunanan heirs stressed that on
November 24, 1982, petitioner and the Cunanan heirs
had entered into an agreement in the United States "to
settle and divide equally the estates," and that under
Section 2 of Rule 77 the "court shall fix a time and place
for the hearing and cause notice thereof to be given as
in case of an original will presented for allowance"
(Records, pp. 184-185).
Petitioner asked that Dr. Rafael G. Cunanan, Jr. be cited
for contempt of court for failure to comply with the
Order of June 23, 1983 and for appropriating money of
the estate for his own benefit. She also alleged that she
had impugned the agreement of November 24, 1982
before the Surrogate Court of Onondaga, New York which
rendered a decision on April 13, 1983, finding that "all
assets are payable to Dr. Evelyn P. Cunanans executor
to be then distributed pursuant to EPTL4-1.1 subd [a] par
[4]" (Rollo, p. 52).
On their part, the Cunanan heirs replied that petitioner
was estopped from claiming that they were heirs by the
agreement to divide equally the estates. They asserted
that by virtue of Section 2 of Rule 77 of the Rules of
Court, the provisions of Sections 3, 4 and 5 of Rule 76 on
the requirement of notice to all heirs, executors,
devisees and legatees must be complied with. They
reiterated their prayer: (1) that the proceedings in the
case be nullified; (2) that petitioner be disqualified as
special administratrix; (3) that she be ordered to submit
an inventory of all goods, chattels and monies which she
had received and to surrender the same to the court; and
(4) that Dr. Rafael Cunanan, Sr. be appointed the regular
administrator.
Petitioner filed a rejoinder, stating that in violation of
the April 13, 1983 decision of the American court Dr.
Rafael G. Cunanan, Jr. made "unauthorized
disbursements from the estates as early as July 7, 1982"
(Records, p. 231). Thereafter, petitioner moved for the
suspension of the proceedings as she had "to attend to
the settlement proceedings" of the estate of the Cunanan
spouses in New York (Records, p. 242). The Cunanans
heirs opposed this motion and filed a manifestation,
stating that petitioner had received $215,000.00 "from
the Surrogates Court as part of legacy" based on the
aforesaid agreement of November 24, 1982 (Records, p.
248).
On February 21, 1984, Judge de la Llana issued an order,
disallowing the reprobate of the two wills, recalling the
appointment of petitioner as special administratrix,
requiring the submission of petitioner of an inventory of
the property received by her as special administratrix
and declaring all pending incidents moot and academic.
Judge de la Llana reasoned out that petitioner failed to
prove the law of New York on procedure and allowance
of wills and the court had no way of telling whether the
wills were executed in accordance with the law of New
York. In the absence of such evidence, the presumption
is that the law of succession of the foreign country is the
same as the law of the Philippines. However, he noted,
that there were only two witnesses to the wills of the
Cunanan spouses and the Philippine law requires three
witnesses and that the wills were not signed on each and
every page, a requirement of the Philippine law.
On August 27, 1985, petitioner filed a motion for
reconsideration of the Order dated February 21, 1984,
where she had sufficiently proven the applicable laws of
New York governing the execution of last wills and
testaments.
On the same day, Judge de la Llana issued another order,
denying the motion of petitioner for the suspension of
the proceedings but gave her 15 days upon arrival in the
country within which to act on the other order issued
that same day. Contending that the second portion of the
second order left its finality to the discretion of counsel
for petitioner, the Cunanans filed a motion for the
reconsideration of the objectionable portion of the said
order so that it would conform with the pertinent
provisions of the Judiciary Reorganization Act of 1980
and the Interim Rules of Court.
On April 30, 1985, the respondent Judge of Branch 18 of
the Regional Trial Court, Malolos, to which the reprobate
case was reassigned, issued an order stating that "(W)hen
the last will and testament . . . was denied probate," the
case was terminated and therefore all orders theretofore
 3
issued should be given finality. The same Order amended
the February 21, 1984 Order by requiring petitioner to
turn over to the estate the inventoried property. It
considered the proceedings for all intents and purposes,
closed (Records,
p. 302).
On August 12, petitioner filed a motion to resume
proceedings on account of the final settlement and
termination of the probate cases in New York. Three days
later, petitioner filed a motion praying for the
reconsideration of the Order of April 30, 1985 on the
strength of the February 21, 1984 Order granting her a
period of 15 days upon arrival in the country within which
to act on the denial of probate of the wills of the
Cunanan spouses. On August 19, respondent Judge
granted the motion and reconsidered the Order of April
30, 1985.
On August 29, counsel for petitioner, who happens to be
her daughter, Natividad, filed a motion praying that
since petitioner was ailing in Fort Lee, New Jersey,
U.S.A. and therefore incapacitated to act as special
administratrix, she (the counsel) should be named
substitute special administratrix. She also filed a motion
for the reconsideration of the Order of February 21,
1984, denying probate to the wills of the Cunanan
spouses, alleging that respondent Judge "failed to
appreciate the significant probative value of the exhibits
. . . which all refer to the offer and admission to probate
of the last wills of the Cunanan spouses including all
procedures undertaken and decrees issued in connection
with the said probate" (Records, pp. 313-323).
Thereafter, the Cunanans heirs filed a motion for
reconsideration of the Order of August 19, 1985, alleging
lack of notice to their counsel.
On March 31, 1986, respondent Judge to which the case
was reassigned denied the motion for reconsideration
holding that the documents submitted by petitioner
proved "that the wills of the testator domiciled abroad
were properly executed, genuine and sufficient to
possess real and personal property; that letters
testamentary were issued; and that proceedings were
held on a foreign tribunal and proofs taken by a
competent judge who inquired into all the facts and
circumstances and being satisfied with his findings issued
a decree admitting to probate the wills in question."
However, respondent Judge said that the documents did
not establish the law of New York on the procedure and
allowance of wills (Records, p. 381).
On April 9, 1986, petitioner filed a motion to allow her
to present further evidence on the foreign law. After the
hearing of the motion on April 25, 1986, respondent
Judge issued an order wherein he conceded that
insufficiency of evidence to prove the foreign law was
not a fatal defect and was curable by adducing additional
evidence. He granted petitioner 45 days to submit the
evidence to that effect.
However, without waiting for petitioner to adduce the
additional evidence, respondent Judge ruled in his order
dated June 20, 1986 that he found "no compelling reason
to disturb its ruling of March 31, 1986" but allowed
petitioner to "file anew the appropriate probate
proceedings for each of the testator" (Records, p. 391).
The Order dated June 20, 1986 prompted petitioner to
file a second motion for reconsideration stating that she
was "ready to submit further evidence on the law
obtaining in the State of New York" and praying that she
be granted "the opportunity to present evidence on what
the law of the State of New York has on the probate and
allowance of wills" (Records, p. 393).
On July 18, respondent Judge denied the motion holding
that to allow the probate of two wills in a single
proceeding "would be a departure from the typical and
established mode of probate where one petition takes
care of one will." He pointed out that even in New York
"where the wills in question were first submitted for
probate, they were dealt with in separate proceedings"
(Records, p. 395).
On August 13, 1986, petitioner filed a motion for the
reconsideration of the Order of July 18, 1986, citing
Section 3, Rule 2 of the Rules of Court, which provides
that no party may institute more than one suit for a
single cause of action. She pointed out that separate
proceedings for the wills of the spouses which contain
basically the same provisions as they even named each
other as a beneficiary in their respective wills, would go
against "the grain of inexpensive, just and speedy
determination of the proceedings" (Records, pp. 405-
407).
On September 11, 1986, petitioner filed a supplement to
the motion for reconsideration, citing Benigno v. De La
Pea, 57 Phil. 305 (1932) (Records,
p. 411), but respondent Judge found that this pleading
had been filed out of time and that the adverse party
had not been furnished with a copy thereof. In her
compliance, petitioner stated that she had furnished a
copy of the motion to the counsel of the Cunanan heirs
and reiterated her motion for a "final ruling on her
supplemental motion" (Records, p. 421).
On November 19, respondent Judge issued an order,
denying the motion for reconsideration filed by
petitioner on the grounds that "the probate of separate
wills of two or more different persons even if they are
husband and wife cannot be undertaken in a single
petition" (Records, pp. 376-378).
Hence, petitioner instituted the instant petition, arguing
that the evidence offered at the hearing of April 11, 1983
sufficiently proved the laws of the State of New York on
the allowance of wills, and that the separate wills of the
Cunanan spouses need not be probated in separate
proceedings.
II
Petitioner contends that the following pieces of evidence
she had submitted before respondent Judge are
sufficient to warrant the allowance of the wills:
(a) two certificates of authentication of
the respective wills of Evelyn and Jose
by the Consulate General of the
Philippines (Exhs. "F" and "G");
(b) two certifications from the
Secretary of State of New York and
Custodian of the Great Seal on the facts
that Judge Bernard L. Reagan is the
Surrogate of the Country of Onondaga
which is a court of record, that his
signature and seal of office are genuine,
and that the Surrogate is duly
authorized to grant copy of the
respective wills of Evelyn and Jose
(Exhs. "F-1" and "G-1");
(c) two certificates of Judge Reagan
and Chief Clerk Donald E. Moore stating
 4
that they have in their records and files
the said wills which were recorded on
April 7, 1982 (Exhs. "F-2" and "G-2");
(d) the respective wills of Evelyn and
Jose (Exhs. "F-3", "F-6" and Exh. "G-3"
"G-6");
(e) certificates of Judge Reagan and the
Chief Clerk certifying to the
genuineness and authenticity of the
exemplified copies of the two wills
(Exhs. "F-7" and "F-7");
(f) two certificates of authentication
from the Consulate General of the
Philippines in New York (Exh. "H" and
"F").
(g) certifications from the Secretary of
State that Judge Reagan is duly
authorized to grant exemplified copies
of the decree of probate, letters
testamentary and all proceedings had
and proofs duly taken
(Exhs. "H-1" and "I-1");
(h) certificates of Judge Reagan and the
Chief Clerk that letters testamentary
were issued to Rafael G. Cunanan (Exhs.
"H-2" and "I-2");
(i) certification to the effect that it was
during the term of Judge Reagan that a
decree admitting the wills to probate
had been issued and appointing Rafael
G. Cunanan as alternate executor
(Exhs. "H-3" and
"I-10");
(j) the decrees on probate of the two
wills specifying that proceedings were
held and proofs duly taken (Exhs. "H-4"
and "I-5");
(k) decrees on probate of the two wills
stating that they were properly
executed, genuine and valid and that
the said instruments were admitted to
probate and established as wills valid to
pass real and personal property (Exhs.
"H-5" and "I-5"); and
(l) certificates of Judge Reagan and the
Chief Clerk on the genuineness and
authenticity of each others signatures
in the exemplified copies of the decrees
of probate, letters testamentary and
proceedings held in their court (Exhs.
"H-6" and "I-6") (Rollo, pp. 13-16).
Petitioner adds that the wills had been admitted to
probate in the Surrogate Courts Decision of April 13,
1983 and that the proceedings were terminated on
November 29, 1984.
The respective wills of the Cunanan spouses, who were
American citizens, will only be effective in this country
upon compliance with the following provision of the Civil
Code of the Philippines:
Art. 816. The will of an alien who is
abroad produces effect in the
Philippines if made with the formalities
prescribed by the law of the place in
which he resides, or according to the
formalities observed in his country, or
in conformity with those which this
Code prescribes.
Thus, proof that both wills conform with the formalities
prescribed by New York laws or by Philippine laws is
imperative.
The evidence necessary for the reprobate or allowance
of wills which have been probated outside of the
Philippines are as follows: (1) the due execution of the
will in accordance with the foreign laws; (2) the testator
has his domicile in the foreign country and not in the
Philippines; (3) the will has been admitted to probate in
such country; (4) the fact that the foreign tribunal is a
probate court, and (5) the laws of a foreign country on
procedure and allowance of wills (III Moran
Commentaries on the Rules of Court, 1970 ed., pp. 419-
429; Suntay v. Suntay, 95 Phil. 500 [1954]; Fluemer v.
Hix, 54 Phil. 610 [1930]). Except for the first and last
requirements, the petitioner submitted all the needed
evidence.
The necessity of presenting evidence on the foreign laws
upon which the probate in the foreign country is based is
impelled by the fact that our courts cannot take judicial
notice of them (Philippine Commercial and Industrial
Bank v. Escolin, 56 SCRA 266 [1974]).
Petitioner must have perceived this omission as in fact
she moved for more time to submit the pertinent
procedural and substantive New York laws but which
request respondent Judge just glossed over. While the
probate of a will is a special proceeding wherein courts
should relax the rules on evidence, the goal is to receive
the best evidence of which the matter is susceptible
before a purported will is probated or denied probate
(Vda. de Ramos v. Court of Appeals, 81 SCRA 393 [1978]).
There is merit in petitioners insistence that the separate
wills of the Cunanan spouses should be probated jointly.
Respondent Judges view that the Rules on allowance of
wills is couched in singular terms and therefore should
be interpreted to mean that there should be separate
probate proceedings for the wills of the Cunanan spouses
is too literal and simplistic an approach. Such view
overlooks the provisions of Section 2, Rule 1 of the
Revised Rules of Court, which advise that the rules shall
be "liberally construed in order to promote their object
and to assist the parties in obtaining just, speedy, and
inexpensive determination of every action and
proceeding."
A literal application of the Rules should be avoided if
they would only result in the delay in the administration
of justice (Acain v. Intermediate Appellate Court, 155
SCRA 100 [1987]; Roberts v. Leonidas, 129 SCRA 33
[1984]).
What the law expressly prohibits is the making of joint
wills either for the testators reciprocal benefit or for
the benefit of a third person (Civil Code of the
Philippines, Article 818). In the case at bench, the
Cunanan spouses executed separate wills. Since the two
wills contain essentially the same provisions and pertain
to property which in all probability are conjugal in
nature, practical considerations dictate their joint
probate. As this Court has held a number of times, it will
always strive to settle the entire controversy in a single
proceeding leaving no root or branch to bear the seeds
of future litigation (Motoomull v. Dela Paz, 187 SCRA 743
[1990]).
 5

This petition cannot be completely resolved without

touching on a very glaring fact petitioner has always
considered herself the sole heir of
Dr. Evelyn Perez Cunanan and because she does not
consider herself an heir of Dr. Jose F. Cunanan, she
noticeably failed to notify his heirs of the filing of the
proceedings. Thus, even in the instant petition, she only
impleaded respondent Judge, forgetting that a judge
whose order is being assailed is merely a nominal or
formal party (Calderon v. Solicitor General, 215 SCRA 876
[1992]).

The rule that the court having jurisdiction over the

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

The brothers and sisters of Dr. Jose F. Cunanan, contrary

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

WHEREFORE, the questioned Order is SET ASIDE.

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

SO ORDERED.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-17818 January 25, 1967
TIRSO T. REYES, as guardian of the minors Azucena
Flordelis and Tirso, Jr., all surnamed Reyes y
Barretto,plaintiffs-appellants,
vs.
LUCIA MILAGROS BARRETTO-DATU, defendant-
appellee.
Recto Law Office for plaintiff-appealant.
Deogracias T. Reyes and Associates for defendant-
appellee.
REYES, J.B.L., J.:
Direct appeal from a judgment of the Court of First
Instance of Bulacan, in its Civil Case No. 1084, dismissing
the complaint of appellant Tirso T. Reyes and ordering
the same to deliver to the defendant-appellee, Lucia
Milagros Barretto-Datu, the properties receivea by his
deceasea wife under the terms of the will of the late
Bibiano Barretto, consisting of lots in Manila, Rizal,
Pampanga and Bulacan, valued at more than P200,000.
The decision appealed from sets the antecedents of the
case to be as follows:
"This is an action to recover one-half share in the
fishpond, located in the barrio of San Roque,
Hagonoy, Bulacan, covered by Transfer
Certificate of Title No. T-13734 of the Land
Records of this Province, being the share of
plaintiff's wards as minor heirs of the deceased
Salud Barretto, widow of plaintiff Tirso Reyes,
guardian of said minors."
It appears that Bibiano Barretto was married to Maria
Gerardo. During their lifetime they acquired a vast
estate, consisting of real properties in Manila,
Pampanga, and Bulacan, covered by Transfer
Certificates of Title Nos. 41423, 22443, 8858, 32989,
31046, 27285, 6277, 6500, 2057, 6501, 2991, 57403 and
12507/T-337.
When Bibiano Barretto died on February 18, 1936, in the
City of Manila, he left his share of these properties in a
will Salud Barretto, mother of plaintiff's wards, and Lucia
Milagros Barretto and a small portion as legacies to his
two sisters Rosa Barretto and Felisa Barretto and his
nephew an nieces The usufruct o the fishpon
situate i barrio Sa Roque Hagonoy, Bulacan, above-
mentioned, however, was reserved for his widow, Maria
Gerardo I the meantime Maria Gerardo was appointe
administratrix. By virtue thereof, she prepared a project
of partition, which was signed by her in her own behalf
and as guardian of the minor Milagros Barretto. Said
project of partition was approved by the Court of First
Instance of Manila on November 22, 1939. The
distribution of the estate and the delivery of the shares
of the heirs followed forthwith. As a consequence, Salud
Barretto took immediate possession of her share and
secured the cancellation of the original certificates of
title and the issuance of new titles in her own name.
Everything went well since then. Nobody was heard to
complain of any irregularity in the distribution of the said
estate until the widow, Maria Gerardo died on March 5,
1948. Upon her death, it was discovered that she had
6
executed two wills, in the first of which, she instituted
Salud and Milagros, both surnamed Barretto, as her heirs;
and, in the second, she revoked the same and left all her
properties in favor of Milagros Barretto alone. Thus, the
later will was allowed and the first rejected. In rejecting
the first will presented by Tirso Reyes, as guardian of the
children of Salud Barretto, the lower court held that
Salud was not the daughter of the decedent Maria
Gerardo by her husband Bibiano Barretto. This ruling was
appealed to the Supreme Court, which affirmed the
same.1
Having thus lost this fight for a share in the estate of
Maria Gerardo, as a legitimate heir of Maria Gerardo,
plaintiff now falls back upon the remnant of the estate
of the deceased Bibiano Barretto, which was given in
usufruct to his widow Maria Gerardo. Hence, this action
for the recovery of one-half portion, thereof.
This action afforded the defendant an opportunity to set
up her right of ownership, not only of the fishpond under
litigation, but of all the other properties willed and
delivered to Salud Barretto, for being a spurious heir,
and not entitled to any share in the estate of Bibiano
Barretto, thereby directly attacking the validity, not only
of the project of partition, but of the decision of the
court based thereon as well.
The defendant contends that the Project of Partition
from which Salud acquired the fishpond in question is
void ab initio and Salud Barretto did not acquire any valid
title thereto, and that the court did not acquire any
jurisdiction of the person of the defendant, who was
then a minor.'
Finding for the defendant (now appellee), Milagros
Barretto, the lower court declared the project of
partition submitted in the proceedings for the
settlement of the estate of Bibiano Barretto (Civil Case
No. 49629 of the Court of First Instance of Manila) to be
null and void ab initio (not merely voidable) because the
distributee, Salud Barretto, predecessor of plaintiffs
(now appellants), was not a daughter of the spouses
Bibiano Barretto and Maria Gerardo. The nullity of the
project of partition was decreed on the basis of Article
1081 of the Civil Code of 1889 (then in force) providing
as follows: .
A partition in which a person was believed to be
an heir, without being so, has been included,
shall be null and void.
The court a quo further rejected the contention
advanced by plaintiffs that since Bibiano Barretto was
free to dispose of one-third (1/3) of his estate under the
old Civil Code, his will was valid in favor of Salud Barretto
(nee Lim Boco) to the extent, at least, of such free part.
And it concluded that, as defendant Milagros was the
only true heir of Bibiano Barretto, she was entitled to
recover from Salud, and from the latter's children and
successors, all the Properties received by her from
Bibiano's estate, in view of the provisions of Article 1456
of the new Civil Code of the Philippines establishing that
property acquired by fraud or mistake is held by its
acquirer in implied trust for the real owner. Hence, as
stated at the beginning of this opinion, the Court a
quo not only dismissed the plaintiffs' complaint but
ordered them to return the properties received under
the project of partition previously mentioned as prayed
for in defendant Milagros Barretto's counterclaim.
However, it denied defendant's prayer for damages.
Hence, this appeal interposed by both plaintiffs and
defendant.
 7
Plaintiffs-appellants correctly point out that Article 1081
of the old Civil Code has been misapplied to the present
case by the court below. The reason is obvious: Salud
Barretto admittedly had been instituted heir in the late
Bibiano Barretto's last will and testament together with
defendant Milagros; hence, the partition had between
them could not be one such had with a party who was
believed to be an heir without really being one, and was
not null and void under said article. The legal precept
(Article 1081) does not speak of children, or
descendants, but of heirs(without distinction between
forced, voluntary or intestate ones), and the fact that
Salud happened not to be a daughter of the testator does
not preclude her being one of the heirs expressly named
in his testament; for Bibiano Barretto was at liberty to
assign the free portion of his estate to whomsoever he
chose. While the share () assigned to Salud impinged
on the legitime of Milagros, Salud did not for that reason
cease to be a testamentary heir of Bibiano Barretto.
Nor does the fact that Milagros was allotted in her
father's will a share smaller than her legitime invalidate
the institution of Salud as heir, since there was here
no preterition, or total ommission of a forced heir. For
this reason, Neri vs. Akutin, 72 Phil. 322, invoked by
appellee, is not at all applicable, that case involving an
instance of preterition or omission of children of the
testator's former marriage.
Appellee contends that the partition in question was void
as a compromise on the civil status of Salud in violation
of Article 1814 of the old Civil Code. This view is
erroneous, since a compromise presupposes the
settlement of a controversy through mutual concessions
of the parties (Civil Code of 1889, Article 1809; Civil Code
of the Philippines, Art. 2028); and the condition of Salud
as daughter of the testator Bibiano Barretto, while
untrue, was at no time disputed during the settlement of
the estate of the testator. There can be no compromise
over issues not in dispute. And while a compromise over
civil status is prohibited, the law nowhere forbids a
settlement by the parties over the share that should
correspond to a claimant to the estate.
At any rate, independently of a project of partition
which, as its own name implies, is merely a proposal for
distribution of the estate, that the court may accept or
reject, it is the court alone that makes the distribution
of the estate and determines the persons entitled
thereto and the parts to which each is entitled (Camia
vs. Reyes, 63 Phil. 629, 643; Act 190, Section 750; Rule
90, Rules of 1940; Rule 91, Revised Rules of Court), and
it is that judicial decree of distribution, once final, that
vests title in the distributees. If the decree was
erroneous or not in conformity with law or the
testament, the same should have been corrected by
opportune appeal; but once it had become final, its
binding effect is like that of any other judgment in rem,
unless properly set aside for lack of jurisdiction or fraud.
It is thus apparent that where a court has validly issued
a decree of distribution of the estate, and the same has
become final, the validity or invalidity of the project of
partition becomes irrelevant.
It is, however, argued for the appellee that since the
court's distribution of the estate of the late Bibiano
Barretto was predicated on the project of partition
executed by Salud Barretto and the widow, Maria
Gerardo (who signed for herself and as guardian of the
minor Milagros Barretto), and since no evidence was
taken of the filiation of the heirs, nor were any findings
of fact or law made, the decree of distribution can have
no greater validity than that of the basic partition, and
must stand or fall with it, being in the nature of a
judgment by consent, based on a
compromise. Saminiada vs. Mata, 92 Phil. 426, is invoked
in support of the proposition. That case is authority for
the proposition that a judgment by compromise may be
set aside on the ground of mistake or fraud, upon
petition filed in due time, where petition for "relief was
filed before the compromise agreement a proceeding,
was consummated" (cas. cit. at p. 436). In the case
before us, however, the agreement of partition was not
only ratified by the court's decree of distribution, but
actually consummated, so much so that the titles in the
name of the deceased were cancelled, and new
certificates issued in favor of the heirs, long before the
decree was attacked. Hence, Saminiada vs. Mata does
not apply.
Moreover, the defendant-appellee's argument would be
plausible if it were shown that the sole basis for the
decree of distribution was the project of partition. But,
in fact, even without it, the distribution could stand,
since it was in conformity with the probated will of
Bibiano Barretto, against the provisions whereof no
objection had been made. In fact it was the court's duty
to do so. Act 190, section 640, in force in 1939, provided:
.
SEC. 640. Estate, How Administered. When a
will is thus allowed, the court shall grant letters
testamentary, or letters of administration with
the will annexed, and such letters testamentary
or of administration, shall extend to all the
estate of the testator in the Philippine
Islands. Such estate, after the payment of just
debts and expenses of administration, shall be
disposed of according to such will, so far as such
will may operate upon it; and the residue, if
any, shall be disposed of as is provided by law in
cases of estates in these Islands belonging to
persons who are inhabitants of another state or
country. (Emphasis supplied)
That defendant Milagros Barretto was a minor at the time
the probate court distributed the estate of her father in
1939 does not imply that the said court was without
jurisdiction to enter the decree of distribution. Passing
upon a like issue, this Court ruled in Ramos vs. Ortuzar,
89 Phil. Reports, pp. 741 and 742:
If we are to assume that Richard Hill and Marvin
Hill did not formally intervene, still they would
be concluded by the result of the proceedings,
not only as to their civil status but as the
distribution of the estate as well. As this Court
has held in Manolo vs. Paredes, 47 Phil. 938,
"The proceeding for probate is one in rem (40
Cyc., 1265) and the court acquires jurisdiction
over all persons interested, through the
publication of the notice prescribed by section
630 C.P.C.; and any order that any be entered
therein is binding against all of them." (See
also in re Estate of Johnson, 39 Phil. 156.) "A
final order of distribution of the estate of a
deceased person vests the title to the land of
the estate in the distributees". (Santos vs.
Roman Catholic Bishop of Nueva Caceres, 45
Phil. 895.) There is no reason why, by analogy,
these salutary doctrines should not apply to
intestate proceedings.
The only instance that we can think of in which
a party interested in a probate proceeding may
have a final liquidation set aside is when he is
left out by reason of circumstances beyond his
control or through mistake or inadvertence not
imputable to negligence. Even then, the better
 8
practice to secure relief is reopening of the
same case by proper motion within the
reglementary period, instead of an independent
action the effect of which, if successful, would
be, as in the instant case, for another court or
judge to throw out a decision or order already
final and executed and reshuffle properties long
ago distributed and disposed of.
It is well to observe, at this juncture, as this Court
expressly declared in Reyes vs. Barretto Datu, 94 Phil.
446 (Am'd Rec. Appeal, pp. 156, 157), that:
... It is argued that Lucia Milagros Barretto was
a minor when she signed the partition, and that
Maria Gerardo was not her judicially appointed
guardian. The claim is not true. Maria Gerardo
signed as guardian of the minor. (Secs. 3 and 5,
Rule 97, Rules of Court.) The mere statement in
the project of partion that the guardianship
proceedings of the minor Lucia Milagros Barretto
are pending in the court, does not mean that the
guardian had not yet been appointed; it meant
that the guardianship proceedings had not yet
been terminated, and as a guardianship
proceedings begin with the appointment of a
guardian, Maria Gerardo must have been already
appointed when she signed the project of
partition. There is, therefore, no irregularity or
defect or error in the project of partition,
apparent on the record of the testate
proceedings, which shows that Maria Gerardo
had no power or authority to sign the project of
partition as guardian of the minor Lucia Milagros
Barretto, and, consequently, no ground for the
contention that the order approving the project
of partition is absolutely null and void and may
be attacked collaterally in these proceedings.
So that it is now incontestable that appellee Milagros
Barretto was not only made a party by publication but
actually appeared and participated in the proceedings
through her guardian: she, therefore, can not escape the
jurisdiction of the Manila Court of First Instance which
settled her father's estate.
Defendant-appellee further pleads that as her mother
and guardian (Maria Gerardo) could not have ignored
that the distributee Salud was not her child, the act of
said widow in agreeing to the oft-cited partition and
distribution was a fraud on appellees rights and entitles
her to relief. In the first place, there is no evidence that
when the estate of Bibiano Barretto was judicially
settled and distributed appellants' predecessor, Salud
Lim Boco Barretto to, knew that she was not Bibiano's
child: so that if fraud was committed, it was the widow,
Maria Gerardo, who was solely responsible, and neither
Salud nor her minor children, appellants herein, can be
held liable therefor. In the second placegranting that
there was such fraud, relief therefrom can only be
obtained within 4 years from its discovery, and the
record shows that this period had elapsed long ago.
Because at the time of the distribution Milagros Barretto
was only 16 years old (Exhibit 24), she became of age
five years later, in 1944. On that year, her cause of
action accrued to contest on the ground of fraud the
court decree distributing her father's estate and the
four-year period of limitation started to run, to expire in
1948 (Section 43, Act. 190). In fact, conceding that
Milagros only became aware of the true facts in 1946
(Appellee's Brief, p. 27), her action still became extinct
in 1950. Clearly, therefore, the action was already
barred when in August 31, 1956 she filed her
counterclaim in this case contesting the decree of
distribution of Bibiano Barretto's estate.
In order to evade the statute of limitations, Milagros
Barretto introduced evidence that appellant Tirso Reyes
had induced her to delay filing action by verbally
promising to reconvey the properties received by his
deceased wife, Salud. There is no reliable evidence of
the alleged promise, which rests exclusively on the oral
assertions of Milagros herself and her counsel. In fact,
the trial court made no mention of such promise in the
decision under appeal. Even more:
granting arguendo that the promise was made, the same
can not bind the wards, the minor children of Salud, who
are the real parties in interest. An abdicative waiver of
rights by a guardian, being an act of disposition, and not
of administration, can not bind his wards, being null and
void as to them unless duly authorized by the proper
court (Ledesma Hermanos vs. Castro, 55 Phil. 136, 142).
In resume, we hold (1) that the partition had between
Salud and Milagros Barretto in the proceedings for the
settlement of the estate of Bibiano Barretto duly
approved by the Court of First Instance of Manila in 1939,
in its Civil Case No. 49629, is not void for being contrary
to either Article 1081 or 1814 of the, Civil Code of 1889;
(2) that Milagros Barretto's action to contest said
partition and decree of distribution is barred by the
statute of limitations; and (3) that her claim that
plaintiff-appellant guardian is a possessor in bad faith
and should account for the fruits received from the
properties inherited by Salud Barretto (nee Lim Boco) is
legally untenable. It follows that the plaintiffs' action for
partition of the fishpond described in the complaint
should have been given due course.
Wherefore, the decision of the Court of First Instance of
Bulacan now under appeal is reversed and set aside in so
far as it orders plaintiff-appellant to reconvey to
appellee Milagros Barretto Datu the properties
enumeracted in said decision, and the same is affirmed
in so far as it denies any right of said appellee to
accounting. Let the records be returned to the court of
origin, with instructions to proceed with the action for
partition of the fishpond (Lot No. 4, Plan Psu-4709),
covered by TCT No. T-13734 of the Office of the Register
of Deeds of Bulacan, and for the accounting of the fruits
thereof, as prayed for in the complaint No costs.
 9
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-24819 May 30, 1969
TESTATE ESTATE OF CATALINA DE LA CRUZ, deceased,
ANDRES PASCUAL, petitioner-appellee,
vs.
PEDRO DE LA CRUZ, ET AL., oppositors-appellants.
Avelino Pascual for petitioner-appellee.
Raul Manglapus and Feria, Feria, Lugtu and La'O for
oppositors-appellants.
REYES, J.B.L., J.:
This is an appeal from the decision of the Court of First
Instance of Rizal (in Sp. Proc. No. 3312) admitting to
probate the purported will of Catalina de la Cruz.
On 2 January 1960, Catalina de la Cruz, single and
without any surviving descendant or ascendant, died at
the age of 89 in her residence at San Roque, Navotas,
Rizal. On 14 January 1960, a petition for the probate of
her alleged will was filed in the Court of First Instance of
Rizal by Andres Pascual, who was named in the said will
as executor and sole heir of the decedent. 1
Opposing the petition, Pedro de la Cruz and 26 other
nephews and nieces of the late Catalina de la Cruz
contested the validity of the will on the grounds that the
formalities required by law were not complied with; that
the testatrix was mentally incapable of disposing of her
properties by will at the time of its execution; that the
will was procured by undue and improper pressure and
influence on the part of the petitioner; and that the
signature of the testatrix was obtained through fraud.
After hearing, during which the parties presented their
respective evidences, the probate court rendered
judgment upholding the due execution of the will, and,
as therein provided, appointed petitioner Andres Pascual
executor and administrator of the estate of the late
Catalina de la Cruz without bond. The oppositors
appealed directly to the Court, the properties involved
being valued at more than P300,000.00, raising only the
issue of the due execution of the will.
In this instance, oppositors-appellees claim that the
lower court erred in giving credence to the testimonies
of the subscribing witnesses and the notary that the will
was duly executed, notwithstanding the existence of
inconsistencies and contradictions in the testimonies,
and in disregarding their evidence that the will was not
signed by all the witnesses in the presence of one
another, in violation of the requirement of the law.
On this point, the lower court said:
Regarding the alleged contradictions and
inconsistencies in the testimony of the three
attesting witnesses and of the Notary Public,
some of which have been enumerated in the
Memorandum of Oppositors' counsel, this Court
has taken pains in noting said inconsistencies but
found the same not substantial in nature
sufficient to discredit their entire testimony on
the due execution of Exhibit "D". It is to be noted
that Exhibit "D" was signed in 1954 and that the
attesting witnesses testified in Court in 1962 or
after a lapse of eight years from the date of the
signing of the document. It is, therefore,
understandable and reasonable to expect that
said witnesses will not retain a vivid picture of
the details surrounding the execution and
signing of the will of Catalina de la Cruz. What
is important and essential is that there be
unanimity and certainty in their testimony
regarding the identity of the signatures of the
testatrix, the attesting witnesses, and the
Notary Public, and the fact that they were all
present at the time those signatures were
affixed on the document Exhibit "D". ....
In this jurisdiction, it is the observed rule that, where a
will is contested, the subscribing with are generally
regarded as the best qualified to testify on its due
execution. However, it is similarly recognized that for
the testimony of such witnesses to be entitled to full
credit, it must be reasonable and unbiased, and not
overcome by competent evidence, direct or
circumstantial. 2 For it must be remembered that the law
does not simply require the presence of three
instrumental witnesses; it demands that the witnesses be
credible. 3
In connection with the issue under consideration, we
agree with the trial judge that the contradictions and
inconsistencies appearing in the testimonies of the
witnesses and the notary, pointed out by the oppositors-
appellants (such as the weather condition at the time the
will was executed; the sequence of the signing by the
witnesses; and the length of time it took to complete the
act), relate to unimportant details of the impressions of
the witnesses about certain details which could have
been affected by the lapse of time and the treachery of
human memory, and which inconsistencies, by
themselves, would not alter the probative value of their
testimonies on the due execution of the will [cf. Peo. vs.
Sigue, 86 Phil. 139-140 (3 years interval)].
In Estate of Javellana vs. Javellana, L-13781, 30 January
1960, 106 Phil. 1076, this Court ruled:
For the purpose of determining the due
execution of a will, it is not necessary that the
instrumental witnesses should give an accurate
and detailed account of the proceeding, such as
recalling the order of the signing of the
document by the said witnesses. It is sufficient
that they have seen or at least were so situated
at the moment that they could have seen each
other sign, had they wanted to do so. In fact, in
the instant case, at least two witnesses, ... both
testified that the testator and the 3 witnesses
signed in the presence of each and every one of
them (Jaboneta vs. Gustilo, 5 Phil. 451; Neyra
vs. Neyra, 42 Off. Gaz. 2817; Fernandez vs.
Tantoco, 49 Phil. 380.).
Neither do we believe that the fact that the witnesses
were better known to proponent Andres Pascual than to
the testatrix suffices to render their testimony suspect.
Under the circumstances, considering the admitted fact
that when the will was executed (1954) the testatrix was
already 83 years old, suffering from rheumatism to the
extent that she had to wear thick socks and soft shoes,
it did not unlikely that she should have entrusted the task
of requesting them to act as witnesses to Andres Pascual
himself, albeit the said witnesses, testifying eight years
later, should have stated that they were asked by
Catalina to witness her testament. The error of recall,
considering the eight-year interval, is consonant with the
well known vagaries of human memory and recollection,
particularly since the main detail that must have stuck
 10
in his minds is that they did witness the signing of the
will, upon which their attention must have principally
concentrated. That they did so is attested by their
signatures and those of the deceased testatrix, which are
nowhere impugned; nor is there any claim by appellants
that the latter was incapable of reading and
understanding the will that she signed. In fact, the
evidence is that she did read it before signing. The
authorities are to the effect that friendly relations of the
witnesses with the testator or the beneficiaries do not
affect the credibility of the former, 4 so that the proven
friendship between the proponent and the instrumental
witnesses would have no bearing on the latter's
qualification to testify on the circumstances surrounding
the signing of the will.
Appellant's main reliance is the alleged tape recording of
a conversation between instrumental witness Manuel
Jiongco and oppositor Pedro B. Cruz at the latter's house
sometime in 1960 (which recording was admittedly taken
without Jiongco's knowledge) wherein said witness is
supposed to have stated that when he signed the will the
other witnesses' signatures were already affixed, and
were not then present, and that he (Jiongco) signed the
document in 1958 or 1959 (Exhibit 22; transcription;
Exhibit 23 et. seq.).
There are two circumstances that militate against giving
credence to particular evidence. The first is that there
is no adequate proof that the declarations tape recorded
were in fact made by Jiongco. The latter denied that the
voice was his, and in this respect the trial judge stated
(Record on Appeal, pages 83-84):
We do not doubt the fact that Manuel Jiongco
was in the house of Pedro Cruzon the occasion
that Exhibit "23" was taken. But it is important
to note that when said recording was replayed
before Manuel Jiongco in Court he denied that
the voice which uttered the above-quoted
portions in the conversation was his. So that
with the denial of Manuel Jiongco, the Court was
left with no other recourse than to make its own
comparison between the natural voice of the
witness, Manuel Jiongco, while testifying on the
witness stand and his supposed recorded voice
in Exhibit "23". It is to be admitted that we noted
some similarity between the two voices but it
was not enough to justify a categorical and
definite conclusion that the recorded voice
identified by Pedro Cruz to be that of Manuel
Jiongco is in truth and in fact the voice of the
latter. Between a testimony given in Court
under oath which was subjected to and stood of
rigorous cross-examination and loose statements
made out of Court which even then are of
doubtful source, this Court gives full faith and
credence to the former. And this is true even if
this particular witness admits having a poor
memory, and his trustworthiness is assailed due
to a previous record of an administrative case
filed against him wherein he was fined for a
charge of falsification of public document (see
Exh. "25"). This is so, because the veracity of his
testimony in Court regarding the due execution
of Exhibit "D" is corroborated and confirmed by
the testimony of the two other attesting
witnesses to the document and the Notary
Public who notarized the same.
Not having heard Jiongco testify, this court is not in a
position to contradict the appreciation of the trial court
that the voice in the tape recording was not really that
of Jiongco. And considering that he denied that fact
under oath, that the tape recording was not supported
by truly impartial evidence, and was done without the
knowledge of the witness, we cannot see our way clear
to rule that Jiongco has been successfully impeached,
and shown guilty of false testimony. It would be
dangerous to rule otherwise.
The second point that renders incredible the alleged
assertion of Jiongco in the tape recording, that he signed
the testament only in 1958 or 1959, is that in the Notarial
Registry of the notary, Gatdula, the ratification of the
testament appears among the entries for 1954, as well
as in the corresponding copies (Exhibit I) filed by him
with Bonifacio Sumulong, the employee in charge of the
Notarial Section of the Clerk of Court's office, who
produced them at the trial upon subpoena, and who
testified to his having searched for and found them in
the vaults of the Clerk of Court's office. No evidence
exists that these documents were not surrendered and
filed at the Clerk of Court's office, as required by law,
and in the regular course of official duty. Certainly, the
notary could not have reported in 1954 what did not
happen until 1958.
In view of the evidence, we do not feel justified in
concluding that the trial court erred in accepting the
concordant testimony of the instrumental witnesses as
warranting the probate of the will in question, taking
into account the unexcelled opportunity of the court a
quo to observe the demeanor, and judge the credibility,
of the witness thereby. Furthermore, it would not be the
first time in this jurisdiction that a will has been
admitted to probate even if the instrumental witness
testified contrary to the other two, provided the court is
satisfied, as in this case, that the will was executed and
attested in the manner provided by law (Fernandez vs.
Tantoco, 49 Phil. 380; Tolentino vs. Francisco, 57 Phil.
742; Cuyugan vs. Baron, 69 Phil. 639; Ramirez vs. Butte,
100 Phil 635). There is greater reason to admit the will
to probate where only the testimony of one witness is
subjected to serious, if unsuccessful attack.
Contestants further assail the admission to probate on
the ground that the execution of the will was tainted by
fraud and undue influence exerted by proponent on the
testarix, and affirm that it was error for the lower court
to have rejected their claim. Said the court in this regard
(Record on Appeal, page 87):
It is a settled rule in this jurisdiction that the
mere fact that a Will was made in favor of a
stranger is not in itself proof that the same was
obtained through fraud and undue pressure or
influence, for we have numerous instances
where strangers are preferred to blood relatives
in the institution of heirs. But in the case at bar,
Andres Pascual, although not related by blood to
the deceased Catalina de la Cruz, was definitely
not a stranger to the latter for she considered
him as her own son. As a matter of fact it was
not only Catalina de la Cruz who loved and cared
for Andres Pascual but also her sisters held him
with affection so much so that Catalina's sister,
Florentina Cruz, made him also her sole heir to
her property in her Will without any objection
from Catalina and Valentina Cruz.
Before considering the correctness of these findings, it is
worthwhile to recall the basic principles on undue
pressure and influence as laid down by the jurisprudence
of this Court: that to be sufficient to avoid a will, the
influence exerted must be of a kind that so overpowers
and subjugates the mind of the testator as to destroy his
free agency and make him express the will of another
rather than his own (Coso vs. Fernandez Deza, 42 Phil.
596; Icasiano vs. Icasiano, L-18979, 30 June 1964;
Teotico vs. Del Val, L-18753, 26 March 196); that the
 11

contention that a will was obtained by undue influence
or improper pressure cannot be sustained on mere
conjecture or suspicion, as it is enough that there was
opportunity to exercise undue influence, or a possibility
that it may have been exercised (Ozaeta vs. Cuartero, L-
5597, 31 May 1956); that the exercise of improper
pressure and undue influence must be supported by
substantial evidence that it was actually exercised
(Ozatea vs. Cuartero, ante; Teotico vs. Del Val, L-18753,
26 March 1965); that the burden is on the person
challenging the will to show that such influence was
exerted at the time of its execution (Teotico vs. Del Val,
ante); that mere general or reasonable influence is not
sufficient to invalidate a will (Coso vs. Fernandez Deza,
ante); nor is moderate and reasonable solicitation and
entreaty addressed to the testator (Barreto vs. Reyes, L-
5831-31, 31 January 1956), or omission of relatives, not
forced heirs, evidence of undue influence (Bugnao vs.
Ubag, 14 Phil. 163; Pecson vs. Coronel, 45 Phil. 416).
Appellants invoked presumption of undue influence held
to exist by American authorities where the beneficiary
participates in the drafting of execution of the will
favoring him; but since the will was prepared by Atty.
Pascual, although nephew of the proponent, we do not
think the presumption applies; for in the normal course
of events, said attorney would follow the instructions of
the testatrix; and a member of the bar in good standing
may not be convicted of unprofessional conduct, or of
having conspired to falsify a statement, except upon
clear proof.
The charge of fraud, being premised on the existence of
undue influence, needs no separate discussion.
WHEREFORE, the decree of probate appealed from is
affirmed; with costs against contestants-appellants.

Tested against these rulings, the circumstances

marshalled by the contestants certainly fail to establish
actual undue influence or improper pressure exercised
on the testarix by the proponent. Their main reliance is
on the assertion of the latter, in the course of his
testimony, that the deceased "did not like to sign
anything unless I knew it" (t.s.n., page 7, 27 January
1962), which does not amount to proof that she would
sign anything that proponent desired. On the contrary,
the evidence of contestants-appellants, that proponent
purchased a building in Manila for the testarix, placed
the title in his name, but caused the name "Catalina de
la Cruz" to be painted thereon in bold letters to mislead
the deceased, even if true, demonstrates that
proponent's influence was not such as to overpower to
destroy the free will of the testarix. Because if the mind
of the latter were really subjugated by him to the extent
pictured by the contestants, then proponent had no need
to recourse to the deception averred.lawphi1.et

Nor is the fact that it was proponent, and not the

testarix, who asked Dr. Sanchez to be one of the
instrumental witnesses evidence of such undue
influence, for the reason that the rheumetism of the
testarix made it difficult for her to look for all the
witnesses. That she did not resort to relatives or friends
is, likewise explainable: it would have meant the
disclosure of the terms of her will to those interested in
her succession but who were not favored by her, thereby
exposing her to unpleasant importunity and
recriminations that an aged person would naturally seek
to avoid. The natural desire to keep the making of a will
secret can, likewise, account for the failure to probate
the testament during her lifetime.

We conclude that the trial court committed no error in

finding the appellant's evidence established at most
grounds for suspicion but fell far short of establishing
actual exercise of improper pressure or influence.
Considering that testarix considered proponent as her
own son, to the extent that she expressed no objection
to his being made the sole heir of her sister, Florentina
Cruz, in derogation of her own rights, we find nothing
abnormalin her instituting proponent also as her own
beneficiary. As stated by the Court in the Knutson case

The truth of the matter is that bequests and

devises to those in whom the testator has
confidence and who have won his affection are
more likely to be free from undue influence that
bequests or devises to others. (In re Knutson's
Will, 41 Pac. 2d 793).
 12
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-16763 December 22, 1921
PASCUAL COSO, petitioner-appellant,
vs.
FERMINA FERNANDEZ DEZA, ET AL., objectors-
appellees.
Eduardo Gutierrez Repide & Felix Socias for appellant.
Jose Varela Calderon & Benito Jimenez Zoboli for
appellees.
OSTRAND, J.:
This is an appeal from a decision of the Court of First
Instance of Manila setting aside a will on the ground of
undue influence alleged to have been exerted over the
mind of a testator by one Rosario Lopez. The will gives
the tercio de libre disposicion to an illegitimate son had
by the testator with said Rosario Lopez, and also provides
for the payment to her of nineteen hundred
Spanish duros by way the reimbursement for expenses
incurred by her in taking care of the testator in Barcelona
during the years 1909 to 1916, when he is alleged to have
suffered from a severe illness.
The evidence shows that the testator, a married man and
resident of the Philippine Islands, became acquainted
with Rosario Lopez in Spain in 1898 and that he had illicit
returns with her for many years thereafter. After his
return to the Philippines she followed him, arriving in
Manila in February, 1918, and remained in close
communication with him until his death in February,
1919. There is no doubt that she exercised some
influence over him and the only question for our
determination is whether this influence was of such a
character as to vitiate the will.
The English and American rule in regard to undue
influence is thus stated in 40 Cyc., 1144-1149.
Mere general or reasonable influence over a
testator is not sufficient to invalidate a will; to
have that effect the influence must be "undue."
The rule as to what constitutes "undue
influence" has been variously stated, but the
substance of the different statements is that, to
be sufficient to avoid a will, the influence
exerted must be of a kind that so overpowers
and subjugates the mind of the testator as to
destroy his free agency and make his express the
will of another, rather than his own.1awphil.net
. . . such influence must be actually exerted on
the mind of the testator in regard to the
execution of the will in question, either at time
of the execution of the will, or so near thereto
as to be still operative, with the object of
procuring a will in favor of particular parties,
and it must result in the making of testamentary
dispositions which the testator would not
otherwise have made. . . .
. . . and while the same amount of influence may
become "undue" when exercised by one
occupying an improper and adulterous relation
to testator, the mere fact that some influence
is exercised by a person sustaining that relation
does not invalidate a will, unless it is further
shown that the influence destroys the testator's
free agency.
The burden is upon the parties challenging the will to
show that undue influence, in the sense above
expressed, existed at the time of its execution and we
do not think that this burden has been carried in the
present case. While it is shown that the testator
entertained strong affections for Rosario Lopez, it does
not appear that her influence so overpowered and
subjugated his mind as to "destroy his free agency and
make him express the will of another rather than his
own." He was an intelligent man, a lawyer by profession,
appears to have known his own mind, and may well have
been actuated only by a legitimate sense of duty in
making provisions for the welfare of his illegitimate son
and by a proper feeling of gratitude in repaying Rosario
Lopez for the sacrifices she had made for him. Mere
affection, even if illegitimate, is not undue influence and
does not invalidate a will. No imposition or fraud has
been shown in the present case.
Influence gained by kindness and affection will
not be regarded as `undue,' if no imposition or
fraud be practiced, even though it induces the
testator to make an unequal and unjust
disposition of his property in favor of those who
have contributed to his comfort and ministered
to his wants, if such disposition is voluntarily
made. (Mackall vs. Mackall, 135 U. S., 1677.)
It may be further observed that under the Civil Law the
right of a person with legal heirs to dispose of his
property by will is limited to only a portion of his estate,
and that under the law in force in these Islands before
the enactment of the Code of Civil Procedure, the only
outside influences affecting the validity of a will were
duress, deceit, and fraud. The present doctrine of undue
influence originated in a legal system where the right of
the testator to dispose of his property by will was nearly
unlimited. Manifestly, greater safeguards in regard to
execution of wills may be warranted when the right to so
dispose of property is unlimited than when it is restricted
to the extent it is in this jurisdiction. There is, therefore,
certainly no reason for giving the doctrine of undue
influence a wider scope here than it enjoys in the United
States.
For the reasons stated, the decision of the lower court
disallowing the will of Federico Gimenez Zoboli is hereby
reversed and it is ordered that the will be admitted to
probate. No costs will be allowed. So ordered.
 13
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-24365 June 30, 1966
IN THE MATTER OF THE INTESTATE ESTATE OF
EDWARD E. CHRISTENSEN, deceased.
ADOLFO C. AZNAR, executor and appellee,
vs.
MARIA LUCY CHRISTENSEN DUNCAN, oppositor and
appellant.
MARIA HELEN CHRISTENSEN, oppositor and appellee.
J. Salonga and L. M. Abellera for oppositor and appellee.
Carlos Dominguez, Jr. for executor-appellee.
M. R. Sotelo for appellant.
MAKALINTAL, J.:
Edward E. Christensen, a citizen of California with
domicile in the Philippines, died leaving a will executed
on March 5, 1951. The will was admitted to probate by
the Court of First Instance of Davao in its decision of
February 28, 1954. In that same decision the court
declared that Maria Helen Christensen Garcia
(hereinafter referred to as Helen Garcia) was a natural
child of the deceased. The declaration was appealed to
this Court, and was affirmed in its decision of February
14, 1958 (G.R. No. L-11484).
In another incident relative to the partition of the
deceased's estate, the trial court approved the project
submitted by the executor in accordance with the
provisions of the will, which said court found to be valid
under the law of California. Helen Garcia appealed from
the order of approval, and this Court, on January 31,
1963, reversed the same on the ground that the validity
of the provisions of the will should be governed by
Philippine law, and returned the case to the lower court
with instructions that the partition be made as provided
by said law (G.R. No. L-16749).
On October 29, 1964, the Court of First Instance of Davao
issued an order approving the project of partition
submitted by the executor, dated June 30, 1964,
wherein the properties of the estate were divided
equally between Maria Lucy Christensen Duncan (named
in the will as Maria Lucy Christensen Daney, and
hereinafter referred to as merely Lucy Duncan), whom
the testator had expressly recognized in his will as his
daughter (natural) and Helen Garcia, who had been
judicially declared as such after his death. The said order
was based on the proposition that since Helen Garcia had
been preterited in the will the institution of Lucy Duncan
as heir was annulled, and hence the properties passed to
both of them as if the deceased had died intestate,
saving only the legacies left in favor of certain other
persons, which legacies have been duly approved by the
lower court and distributed to the legatees.
The case is once more before us on appeal, this time by
Lucy Duncan, on the sole question of whether the estate,
after deducting the legacies, should pertain to her and
to Helen Garcia in equal shares, or whether the
inheritance of Lucy Duncan as instituted heir should be
merely reduced to the extent necessary to cover the
legitime of Helen Garcia, equivalent to 1/4 of the entire
estate.
The will of Edward E. Christensen contains, among
others, the following clauses which are pertinent to the
issue in this case:
3. I declare ... that I have but ONE (1) child,
named MARIA LUCY CHRISTENSEN (Now Mrs.
Bernard Daney), who was born in the Philippines
about twenty-eight years ago, who is now
residing at No. 665 Rodger Young Village, Los
Angeles, California, U.S.A.
4. I further declare that I now have no living
ascendants, and no descendants except my
above-named daughter, MARIA LUCY
CHRISTENSEN DANEY.
xxx xxx xxx
7. I give, devise, and bequeath unto MARIA
HELEN CHRISTENSEN, now married to Eduardo
Garcia, about eighteen years of age and who,
notwithstanding the fact that she was baptized
Christensen, is not in any way related to me, nor
has she been at any time adopted by me, and
who, from all information I have now resides in
Egpit, Digos, Davao, Philippines, the sum of
THREE THOUSAND SIX HUNDRED PESOS
(P3,600.00), Philippine Currency, the same to
be deposited in trust for the said Maria Helen
Christensen with the Davao Branch of the
Philippine National Bank, and paid to her at the
rate of One Hundred Pesos (P100.00), Philippine
Currency per month until the principal thereof
as well as any interest which may have accrued
thereon, is exhausted.
xxx xxx xxx
12. I hereby give, devise and bequeath, unto my
well-beloved daughter, the said MARIA LUCY
CHRISTENSEN DANEY (Mrs. Bernard Daney) now
residing, as aforesaid, at No. 665 Rodger Young
Village, Los Angeles, California, U.S.A., all the
income from the rest, remainder, and residue of
my property and estate, real, personal and/or
mixed, of whatsoever kind or character, and
wheresoever situated, of which I may be
possessed at my death and which may have
come to me from any source whatsoever, during
her lifetime; Provided, however, that should the
said MARIA LUCY CHRISTENSEN DANEY at
anytime prior to her decease having living issue,
then and in that event, the life interest herein
given shall terminate, and if so terminated, then
I give, devise, and bequeath to my daughter, the
said MARIA LUCY CHRISTENSEN DANEY the rest,
remainder and residue of my property with the
same force and effect as if I had originally so
given, devised and bequeathed it to her; and
provided, further, that should the said MARIA
LUCY CHRISTENSEN DANEY die without living
issue, then, and in that event, I give, devise and
bequeath all the rest, remainder and residue of
my property one-half (1/2) to my well-beloved
sister, Mrs. CARRIE LOUISE C. BORTON, now
residing at No. 2124, Twentieth Street,
Bakersfield, California, U.S.A., and one-half
(1/2) to the children of my deceased brother,
JOSEPH C. CHRISTENSEN, namely: Mrs. Carol F.
Ruggaver, of Los Angeles, California, U.S.A., and
Joseph Raymond Christensen, of Manhattan
Beach, California, U.S.A., share and share alike,
the share of any of the three above named who
may predecease me, to go in equal parts to the
descendants of the deceased; and, provided
 14
further, that should my sister Mrs. Carol Louise
C. Borton die before my own decease, then, and
in that event, the share of my estate devised to
her herein I give, devise and bequeath to her
children, Elizabeth Borton de Trevio, of Mexico
City Mexico; Barbara Borton Philips, of
Bakersfield, California, U.S.A., and Richard
Borton, of Bakersfield, California, U.S.A., or to
the heirs of any of them who may die before my
own decease, share and share alike.
The trial court ruled, and appellee now maintains, that
there has been preterition of Helen Garcia, a compulsory
heir in the direct line, resulting in the annulment of the
institution of heir pursuant to Article 854 of the Civil
Code, which provides:
ART. 854. The preterition or omission of one,
some, or all of the compulsory heirs in the direct
line, whether living at the time of the execution
of the will or born after the death of the
testator, shall annul the institution of heir; but
the devises and legacies shall be valid insofar as
they are not inofficious.
On the other hand, appellant contends that this is not a
case of preterition, but is governed by Article 906 of the
Civil Code, which says: "Any compulsory heir to whom the
testator has left by any title less than the legitime
belonging to him may demand that the same be fully
satisfied." Appellant also suggests that considering the
provisions of the will whereby the testator expressly
denied his relationship with Helen Garcia, but left to her
a legacy nevertheless although less than the amount of
her legitime, she was in effect defectively disinherited
within the meaning of Article 918, which reads:
ART. 918. Disinheritance without a specification
of the cause, or for a cause the truth of which,
if contradicted, is not proved, or which is not
one of those set forth in this Code, shall annul
the institution of heirs insofar as it may
prejudice the person disinherited; but the
devices and legacies and other testamentary
dispositions shall be valid to such extent as will
not impair the legitimate.
Thus, according to appellant, under both Article 906 and
918, Helen Garcia is entitled only to her legitime, and
not to a share of the estate equal that of Lucy Duncan as
if the succession were intestate.
Article 854 is a reproduction of Article 814 of the Spanish
Civil Code; and Article 906 of Article 815. Commenting
on Article 815, Manresa explains:
Como dice Goyena, en el caso de pretericion
puede presumirse ignorancia o falta de memoria
en el testador; en el de dejar algo al heredero
forzoso no. Este no se encuentra plivado
totalmente de su legitima: ha recibido por
cualquir titulo una porcion de los bienes
hereditarios, porcion que no alcanza a
completar la legitima, pero que influeye
poderosamente en el animo del legislador para
decidirle a adoptar una solucion bien diferente
de la sealada para el caso de pretericion.
El testador no ha olvidado por completo al
heredero forzoso; le ha dejado bienes; pero
haciendo un calculo equivocado, ha repartido en
favor de extraos o en favor de otros
legitimarios por via de legado donacion o mejora
mayor cantidad de la que la ley de consentia
disponer. El heredero forzoso no puede perder
su legitima, pero tampoco puede pedir mas que
la misma. De aqui su derecho a reclamar
solamente lo que le falta; al complemento de la
porcion que forzosamente la corresponde.
... Dejar el testador por cualquier titulo,
equivale a disponer en testamento por titulo de
herencia legado o mejora, y en favor de
legitimarios, de alguna cantidad o porcion de
bienes menos que la legitima o igual a la misma.
Tal sentido, que es el mas proprio en al articulo
815, no pugna tampoco con la doctrina de la
ley. Cuando en el testamento se deja algo al
heredero forzoso, la pretericion es incompleta:
es mas formularia que real. Cuando en el
testamento nada se deja el legitimario, hay
verdadera pretericion. (6 Manresa, 7th Ed.,
1951, p. 437.)
On the difference between preterition of a compulsory
heir and the right to ask for completion of his legitime,
Sanchez Roman says:
La desheredacion, como expresa, es siempre
voluntaria; la pretericion puede serlo pero se
presume involuntaria la omision en que consiste
en cuanto olvida o no atiende el testador en su
testamento a la satisfaccion del derecho a la
legitima del heredero forzoso preterido,
prescindiendo absoluta y totalmente de el y no
mencionandole en ninguna de sus disposiciones
testamentarias, o no instituyendole en parte
alguna de la herencia, ni por titulo de heredero
ni por el de legatar o aunque le mencionara o
nombrara sin dejarle mas o menos bienes. Si le
dejara algunos, por pocos que sean e
insuficientes para cubrir su legitima, ya no seria
caso de pretericion, sino de complemento de
aquella. El primer supuesto o de pretericion se
regula por el articulo 814, y produce accion de
nulidad de la institucion de heredero; y el
segundo, o de complemento de legitima por el
815 y solo original la accion ad suplementum,
para completar la legitima. (Sanchez Roman,
Tomo VI, Vol. 2, p. 1131.)
Manresa defines preterition as the omission of the heir in
the will, either by not naming him at all or, while
mentioning him as father, son, etc., by not instituting
him as heir without disinheriting him expressly,
nor assigning to him some part of the properties.
Manresa continues:
Se necesita pues (a) Que la omision se refiera a
un heredero forzoso; (b) Que la omision sea
completa; que el heredero forzoso nada reciba
en el testamento.1wph1.t
xxx xxx xxx
B. Que la omision sea completa Esta condicion
se deduce del mismo Articulo 814 y resulta con
evidencia al relacionar este articulo con el 815.
El heredero forzoso a quien el testador deja algo
por cualquier titulo en su testamento, no se
halla propiamente omitido pues se le nombra y
se le reconoce participacion en los bienes
hereditarios. Podria discutirse en el Articulo 814
si era o no necesario que se reconociese el
derecho del heredero como tal heredero, pero
el articulo 815 desvanece esta duda. Aquel se
ocupa de privacion completa o total, tacita
este, de la privacion parcial. Los efectos deben
 15

ser y son, como veremos completamente suplementum para completarla, sin necesidad
distintos (6 Manresa, p. 428.) de anular las otras instituciones de heredero o
demas disposiciones contenidas en el
La privacion de la legitima puede ser total o testamento.
parcial.
El Articulo 851 se aparta de este criterio
Privar totalmente de la legitima es negarla en estricto y se ajusta a la unica necesidad que le
absoluto al legitimario, despojarle de ella por inspira cual es la de que se complete la legitima
completo. A este caso se refiere el articulo 814. del heredero forzoso, a quien por cualquier
Privar parcialmente de la legitima, es menguarla titulo se haya dejado menos de lo que le
o reducirla dejar al legitimario una porcion, corresponda, y se le otorga tan solo el derecho
menor que la que le corresponde. A este caso se de pedir el complemento de la misma sin
refiere el articulo 815. El 813 sienta, pues, una necesidad de que se anulen las disposiciones
regla general, y las consecuencias del que testamentarias, que se reduciran en lo que sean
brantamiento de esta regla se determina en los inoficiosas conforme al articulo 817, cuya
articulos 814 y 815. (6 Manresa p. 418.) interpretacion y sentido tienen ya en su apoyo
la sancion de la jurisprudencia (3); siendo
condicion precisa que lo que se hubiere
Again Sanchez Roman:
dejado de menos de la legitima al heredero
forzoso, lo haya sido en el testamento, o sea por
QUE LA OMISSION SEA TOTAL. Aunque el disposicion del testador, segun lo revela el texto
articulo 814 no consigna de modo expreso esta del articulo, "el heredero forzoso a quien el
circunstancia de que la pretericion o falta de testador haya dejado, etc., esto es por titulo de
mencion e institucion o disposicion legado o donacion mortis causa en el
testamentaria a su favor, sea total, completa y testamento y, no fuera de al. (Sanchez Roman,
absoluta, asi se deduce de no hacer distincion o Tomo VI, Vol. 2.0 p. 937.)
salvedad alguna empleandola en terminos
generales; pero sirve a confirmarlo de un modo
Manresa cites particularly three decisions of the Supreme
indudable el siguiente articulo 815, al decir que
Court of Spain dated January 16, 1895, May 25, 1917, and
el heredero forzoso a quien el testador haya
April 23, 1932, respectively. In each one of those cases
dejado por cualquier titulo, menos de la
the testator left to one who was a forced heir a legacy
legitima que la corresponda, podria pedir el
worth less than the legitime, but without referring to the
complemento de la misma, lo cual ya no son el
legatee as an heir or even as a relative, and willed the
caso ni los efectos de la pretericion, que anula
rest of the estate to other persons. It was held that
la institucion, sino simplemente los del
Article 815 applied, and the heir could not ask that the
suplemento necesario para cubrir su legitima.
institution of heirs be annulled entirely, but only that the
(Sanchez Roman Tomo VI, Vol. 2.0 p. 1133.)
legitime be completed. (6 Manresa, pp. 438, 441.)

The question may be posed: In order that the right of a

The foregoing solution is indeed more in consonance with
forced heir may be limited only to the completion of his
the expressed wishes of the testator in the present case
legitime (instead of the annulment of the institution of
as may be gathered very clearly from the provisions of
heirs) is it necessary that what has been left to him in
his will. He refused to acknowledge Helen Garcia as his
the will "by any title," as by legacy, be granted to him in
natural daughter, and limited her share to a legacy of
his capacity as heir, that is, a titulo de heredero? In
P3,600.00. The fact that she was subsequently declared
other words, should he be recognized or referred to in
judicially to possess such status is no reason to assume
the will as heir? This question is pertinent because in the
that had the judicial declaration come during his lifetime
will of the deceased Edward E. Christensen Helen Garcia
his subjective attitude towards her would have
is not mentioned as an heir indeed her status as such
undergone any change and that he would have willed his
is denied but is given a legacy of P3,600.00.
estate equally to her and to Lucy Duncan, who alone was
expressly recognized by him.
While the classical view, pursuant to the Roman law,
gave an affirmative answer to the question, according to
The decision of this Court in Neri, et al. v. Akutin, 74
both Manresa (6 Manresa 7th 3rd. 436) and Sanchez
Phil. 185, is cited by appellees in support of their theory
Roman (Tomo VI, Vol. 2.0 p. 937), that view was
of preterition. That decision is not here applicable,
changed by Article 645 of the "Proyecto de Codigo de
because it referred to a will where "the testator left all
1851," later on copied in Article 906 of our own Code.
his property by universal title to the children by his
Sanchez Roman, in the citation given above, comments
second marriage, and (that) without expressly
as follows:
disinheriting the children by his first marriage, he left
nothing to them or, at least, some of them." In the case
RESPECTO DEL COMPLEMENTO DE LA LEGITIMA. at bar the testator did not entirely omit oppositor-
Se inspira el Codigo en esta materia en la appellee Helen Garcia, but left her a legacy of
doctrina clasica del Derecho romano y patrio P3,600.00.
(2); pero con alguna racional modificacion.
Concedian aquellos precedentes legales al
The estate of the deceased Christensen upon his death
heredero forzoso, a quien no se le dejaba
consisted of 399 shares of stocks in the Christensen
por titulo de tal el completo de su legitima, la
Plantation Company and a certain amount in cash. One-
accion para invalidar la institucion hecha en el
fourth (1/4) of said estate descended to Helen Garcia as
testamento y reclamar y obtener aquella
her legitime. Since she became the owner of her share
mediante el ejercicio de la querella de
as of the moment of the death of the decedent (Arts.
inoficioso, y aun cuando resultara favorecido
774, 777, Civil Code), she is entitled to a corresponding
como donotario, por otro titulo que no fuera el
portion of all the fruits or increments thereof
de heredero, sino al honor de que se le privaba
subsequently accruing. These include the stock dividends
no dandole este caracter, y solo cuando era
on the corporate holdings. The contention of Lucy
instituido heredero en parte o cantidad inferior
Duncan that all such dividends pertain to her according
a lo que le correspondiera por legitima, era
to the terms of the will cannot be sustained, for it would
cuando bastaba el ejercicio de la accion ad
 16

in effect impair the right of ownership of Helen Garcia
with respect to her legitime.
One point deserves to be here mentioned, although no
reference to it has been made in the brief for oppositor-
appellant. It is the institution of substitute heirs to the
estate bequeathed to Lucy Duncan in the event she
should die without living issue. This substitution results
in effect from the fact that under paragraph 12 of the
will she is entitled only to the income from said estate,
unless prior to her decease she should have living issue,
in which event she would inherit in full ownership;
otherwise the property will go to the other relatives of
the testator named in the will. Without deciding this,
point, since it is not one of the issues raised before us,
we might call attention to the limitations imposed by law
upon this kind of substitution, particularly that which
says that it can never burden the legitime (Art. 864 Civil
Code), which means that the legitime must descend to
the heir concerned in fee simple.
refuting the theory advanced by appellees and not for
the purpose of having the rights of said heirs defined in
so far as, under the terms of the will, they may affect
the legitime of oppositor-appellant. This point of course
was not and could hardly have been squarely raised as an
issue inasmuch as the substitute heirs are not parties in
this case. We have nevertheless called attention "to the
limitations imposed by law upon this kind of
substitution," because in the brief for oppositor-
appellant, at page 45, she makes the conclusion "that the
Last Will and Testament of Edward E. Christensen are
valid under Philippine Law and must be given full force
and effect;" and to give them full force and effect would
precisely affect the legitime of oppositor-appellant.
Wherefore, the last paragraph before the dispositive part
of our decision quoted above is amended by eliminating
the following phrase in the first sentence: "although no
reference to it has been made in the brief for oppositor-
appellant."

Wherefore, the order of the trial court dated October 29,

1964, approving the project of partition as submitted by
the executor-appellee, is hereby set aside; and the case
is remanded with instructions to partition the hereditary
estate anew as indicated in this decision, that is, by
giving to oppositor-appellee Maria Helen Christensen
Garcia no more than the portion corresponding to her as
legitime, equivalent to one-fourth (1/4) of the
hereditary estate, after deducting all debts and charges,
which shall not include those imposed in the will of the
decedent, in accordance with Article 908 of the Civil
Code. Costs against appellees in this instance.

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

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

RESOLUTION

July 30, 1967

MAKALINTAL, J.:

Oppositor-appellant has filed an ex-parte petition dated

July 11, 1966, making reference to an alleged oversight
and asking for the corresponding correction, in the last
paragraph before the dispositive part of our decision,
which reads as follows:

One point deserves to be here mentioned, although no

reference to it has been made in the brief for oppositor-
appellant. It is the institution of substituted heirs to the
estate bequeathed to Lucy Duncan in the event she
should die without living issue. This substitution results
in effect from the fact that under paragraph 12 of the
will she is entitled only to the income from said estate,
unless prior to her decease she should have living issue,
in which event she would inherit in full ownership;
otherwise the property will go to the other relatives of
the testator named in the will. Without deciding this
point, since it is not one of the issues raised before us,
we might call attention to the limitations imposed by law
upon this kind of substitution, particularly that which
says that it can never burden the legitime (Art. 864, Civil
Code), which means that the legitime must descend to
the heir concerned in fee simple. (Decision, June 30,
1966, pages 14-15; emphasis ours).

Oppositor-appellant points out that the matter of

substitution of heirs was taken up and discussed in her
brief particularly in pages 28 and 32 thereof. This is
indeed quite true, but the reference to and discussion of
the rights of the substitute heirs (called American heirs
in the brief) appears to be merely for the purpose of
 17
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-47799 June 13, 1941
Administration of the estate of Agripino Neri y Chavez.
ELEUTERIO NERI, ET AL., petitioners,
vs.
IGNACIA AKUTIN AND HER CHILDREN, respondents.
Ozamiz & Capistrano for petitioners.
Gullas, Leuterio, Tanner & Laput for respondents.
MORAN, J.:
Agripino Neri y Chavez, who died on December 12, 1931,
had by his first marriage six children named Eleuterio,
Agripino, Agapito, Getulia, Rosario and Celerina; and by
his second marriage with Ignacia Akutin, five children
named Gracia, Godofredo, Violeta, Estela Maria, and
Emma. Getulia, daughter in the first marriage, died on
October 2, 1923, that is, a little less than eight years
before the death of said Agripino Neri y Chavez, and was
survived by seven children named Remedios,
Encarnacion, Carmen, Trinidad, Luz, Alberto and Minda.
In Agripino Neri's testament, which was admitted to
probate on March 21, 1932, he willed that his children by
the first marriage shall have no longer any participation
in his estate, as they had already received their
corresponding shares during his lifetime. At the hearing
for the declaration of heirs, the trial court found,
contrary to what the testator had declared in his will,
that all his children by the first and second marriages
intestate heirs of the deceased without prejudice to one-
half of the improvements introduced in the properties
during the existence of the last conjugal partnership,
which should belong to Ignacia Akutin. The Court of
Appeals affirmed the trial court's decision with the
modification that the will was "valid with respect to the
two-thirds part which the testator could freely dispose
of. "This judgment of the Court of Appeals is now sought
to be reviewed in this petition for certiorari.
The decisive question here raised is whether, upon the
foregoing facts, the omission of the children of the first
marriage annuls the institution of the children of the first
marriage as sole heirs of the testator, or whether the will
may be held valid, at least with respect to one-third of
the estate which the testator may dispose of as legacy
and to the other one-third which he may bequeath as
betterment, to said children of the second marriage.
The Court of Appeals invoked the provisions of article
851 of the Civil Code, which read in part as follows:
Disinheritance made without a statement of the
cause, or for a cause the truth of which, if
contradicted, is not proven, ... shall annul the
institution of the heir in so far as it prejudices
the person disinherited; but the legacies,
betterments, and other testamentary
dispositions, in so far as they do no encroach
upon the legitime, shall be valid.
The appellate court thus seemed to have rested its
judgment upon the impression that the testator had
intended to disinherit, though ineffectively, the children
of the first marriage. There is nothing in the will that
supports this conclusion. True, the testator expressly
denied them any share in his estate; but the denial was
predicated, not upon the desire to disinherit, but upon
the belief, mistaken though it was, that the children by
the first marriage had already received more than their
corresponding shares in his lifetime in the form of
advancement. Such belief conclusively negatives all
inference as to any intention to disinherit, unless his
statement to that effect is prove to be deliberately
fictitious, a fact not found by the Court of Appeals. The
situation contemplated in the above provision is one in
which the purpose to disinherit is clear, but upon a cause
not stated or not proved, a situation which does not
obtain in the instant case.
The Court of Appeals quotes Manresa thus:
En el terreno de los principios, la solucion mas
justa del problema que hemos hecho notar al
comentar el articulo, seria distinguir el caso en
que el heredero omitido viviese al otorgarse el
testamento, siendo conocida su existencia por el
testador, de aquel en que, o naciese despues, o
se ignorase su existencia, aplicando en el primer
caso la doctrina del articulo 851, y en el segundo
la del 814. (6 Manresa, 354-355.)
But it must be observed that this opinion is founded on
mere principles (en el terreno de los principios) and not
on the express provisions of the law. Manresa himself
admits that according to law, "no existe hoy cuestion
alguna en esta materia: la pretericion produce siempre
los mismos efectos, ya se refiera a personas vivas al
hacer el testamento o nacidas despues. Este ultimo
grupo solo puede hacer relacion a los descendientes
legitimos, siempre que ademas tengan derecho a
legitima." (6 Manresa, 381.)
Appellants, on the other hand, maintain that the case is
one of voluntary preterition of four of the children by the
first marriage, and of involuntary preterition of the
children by the deceased Getulia, also of the first
marriage, and is thus governed by the provisions of
article 814 of the Civil Code, which read in part as
follows:
The preterition of one or all of the forced heirs
in the direct line, whether living at the time of
the execution of the will or born after the death
of the testator, shall void the institution of heir;
but the legacies and betterments shall be valid,
in so far as they are not inofficious.
Preterition consists in the omission in the testator's will
of the forced heirs or anyone of them, either because
they are not mentioned therein, or, though mentioned,
they are neither instituted as heirs nor are expressly
disinherited.(Cf. 6 Manresa, 346.) In the instant case,
while the children of the first marriage were mentioned
in the will, they were not accorded any share in the
heriditary property, without expressly being
disinherited. It is, therefore, a clear case of preterition
as contended by appellants. The omission of the forced
heirs or anyone of them, whether voluntary or
involuntary, is a preterition if the purpose to disinherit
is not expressly made or is not at least manifest.
Except as to "legacies and betterments" which "shall be
valid in so far as they are not inofficious" (art. 814 of the
Civil Code), preterition avoids the institution of heirs and
gives rise to intestate succession. (Art. 814, Civil Code;
Decisions of the Supreme Court of Spain of June 17, 1908
and February 27, 1909.) In the instant case, no such
legacies or betterments have been made by the testator.
"Mejoras" or betterments must be expressly provided,
according to articles 825 and 828 of the Civil Code, and
where no express provision therefor is made in the will,
the law would presume that the testator had no intention
 18

to that effect. (Cf. 6 Manresa, 479.) In the will here in

question, no express betterment is made in favor of the
children by the second marriage; neither is there any
legacy expressly made in their behalf consisting of the
third available for free disposal. The whole inheritance
is accorded the heirs by the second marriage upon the
mistaken belief that the heirs by the first marriage have
already received their shares. Were it not for this
mistake, the testator's intention, as may be clearly
inferred from his will, would have been to divide his
property equally among all his children.

Judgment of the Court of Appeals is reversed and that of

the trial court affirmed, without prejudice to the
widow's legal usufruct, with costs against respondents.
 19

Republic of the Philippines of Sulpicio Resurreccion, the widower of the testatrix,

SUPREME COURT who testified that Agustin Javier was in his house only
Manila once, in April or May, 1930, prior to the death of the
testatrix. According to this, he could not have given to
EN BANC the testatrix the information about Gil's death which
took place some months later, or in August,
1930.lwphi1.nt
G.R. No. L-42539 October 23, 1936

Furthermore, if the testatrix, in making her will, knew

In re Will of the deceased Felisa Javier. SULPICIO
that Gil was already dead and that he had left children,
RESURRECCION, administrator-appellee,
it cannot be explained why she left the legacy to Gil and
vs.
not to his children, if such was her intention, particularly
AGUSTIN JAVIER, ET AL., oppositors-appellants.
because, according to the evidence for the appellants,
she knew one of said children named Jose.
German Boncan for the appellants.
Perfecto Gabriel for the appellee.
Consequently, in either case, whether the testatrix knew
that Gil was already dead or she was ignorant thereof, as
she had left the legacy in favor of Gil, there is no reason
to admit that it was, nevertheless, her intention to leave
it to his children.
AVANCEA, C. J.:
The appealed judgment is affirmed, with costs to the
On October 18, 1932, Felisa Francisco Javier made a will appellants. So ordered.
instituting her husband Sulpicio Resurreccion as her
universal heir and, among other things, left a legacy of
P2,000 in favor of her brother Gil Francisco Javier. The
testatrix died on January 22, 1933, and her will was
probated on March 8th of said year.

On October 12, 1933, the court, finding that Gil

Francisco Javier died in August, 1930, even before the
testatrix made her will, ordered that the legacy of
P2,000 in his favor revert to the fund of the estate.

Gil Francisco Javier's children and heirs, claiming that

they are entitled to receive the legacy of P2,000 in favor
of their father, appeal from the court's resolution
ordering the reversion of this amount to the funds of the
estate.

The important thing to determine in this appeal is the

effect of a legacy made in favor of a person who was
already dead not only before the death of the testatrix
but even before the will was made.

The testatrix, having no forced heirs, may dispose by will

of all her property or any part thereof in favor of any
person qualified to acquire it (art. 763, Civil Code). Upon
being instituted as legatee by the testatrix, Gil Francisco
Javier lacked civil personality, which is extinguished by
death, and, therefore, lacked capacity to inherit by will
on the ground that he could not be the subject of a right
(art. 32, Civil Code). Consequently, his institution as a
legatee had absolutely no legal effect and his heirs are
not now entitled to claim the amount of legacy. They
cannot even claim under the principle of representation
because this takes place only in intestate inheritance.
Furthermore, as the legatee died before the testatrix,
he could transmit nothing to his heirs (art. 766, Civil
Code).

The appellants also contend that the will should be

interpreted in the sense that the intention of the
testatrix was to leave the legacy to the heirs of Gil
Francisco Javier. To this effect they have introduced
evidence to show that the testatrix, in making her will,
knew that Gil Francisco Javier was already dead. This
court, however, does not find sufficient evidence to
establish this fact. The only witness who testified to this
effect was Agustin Javier, Gil's brother, who alleged that
he was in the house of the testatrix in May, 1931, and in
a conversation with her he informed her that their
brother Gil had already died, leaving a widow and
children. But against this testimony was presented that
 20
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-31703 February 13, 1930
CARMEN G. DE PEREZ, trustee of the estate of Ana
Maria Alcantara, plaintiff-appellee,
vs.
MARIANO GARCHITORENA, and JOSE CASIMIRO, Sheriff
of the Court of First Instance of Manila,defendants-
appellants.
L. D. Lockwood and Jose M. Casal for appellants.
Eduardo Gutierrez Repide and Leoncio B. Monzon for
appellee.
ROMUALDEZ, J.:
The amount of P21,428.58 is on deposit in the plaintiff's
name with the association known as La Urbana in Manila,
as the final payment of the liquidated credit of Ana Maria
Alcantara, deceased, whose heiress is said plaintiff,
against Andres Garchitorena, also deceased, represented
by his son, the defendant Mariano Garchitorena.
And as said Mariano Garchitorena held a judgment for
P7,872.23 against Joaquin Perez Alcantara, husband of
the plaintiff, Carmen G. de Perez, the sheriff pursuant
to the writ of execution issued in said judgment, levied
an attachment on said amount deposited with La
Urbana.
The plaintiff, alleging that said deposit belongs to the
fideicommissary heirs of the decedent Ana Maria
Alcantara, secured a preliminary injunction restraining
the execution of said judgment on the sum so attached.
The defendants contend that the plaintiff is the
decedent's universal heiress, and pray for the dissolution
of the injunction.
The court below held that said La Urbana deposit
belongs to the plaintiff's children as fideicommissary
heirs of Ana Maria Alcantara, and granted a final writ of
injunction.
The defendants insist in their contentions, and, in their
appeal from the decision of the trial court, assign the
following errors:
1. The lower court erred in holding that a trust
was created by the will of Doa Ana Maria
Alcantara.
2. The lower court erred in concluding and
declaring that the amount of P21,428.58
deposited with La Urbana is the property of the
children of the plaintiff as "herederos fidei-
comisarios."
3. The lower court erred in making the
injunction permanent and condemning
defendant to pay the costs.
The question here raised is confined to the scope and
meaning of the institution of heirs made in the will of
the late Ana Maria Alcantara already admitted to
probate, and whose legal force and effect is not in
dispute.
The clauses of said will relevant to the points in dispute,
between the parties are the ninth, tenth, and eleventh,
quoted below:
Ninth. Being single and without any forced heir,
to show my gratitude to my niece-in-law,
Carmen Garchitorena, of age, married to my
nephew, Joaquin Perez Alcantara, and living in
this same house with me, I institute her as my
sole and universal heiress to the remainder of
my estate after the payment of my debts and
legacies, so that upon my death and after
probate of this will, and after the report of the
committee on claims and appraisal has been
rendered and approved, she will receive from
my executrix and properties composing my
hereditary estate, that she may enjoy them with
God's blessing and my own.
Tenth. Should my heiress Carmen Garchitorena
die, I order that my whole estate shall pass
unimpaired to her surviving children; and should
any of these die, his share shall serve to increase
the portions of his surviving brothers (and
sisters) by accretion, in such wise that my estate
shall never pass out of the hands of my heiress
or her children in so far as it is legally possible.
Eleventh. Should my aforesaid heiress, Carmen
Garchitorena, die after me while her children
are still in their minority, I order that my estate
be administered by my executrix, Mrs. Josefa
Laplana, and in her default, by Attorney Ramon
Salinas and in his default, by his son Ramon
Salinas; but the direction herein given must not
be considered as an indication of lack of
confidence in my nephew Joaquin Perez
Alcantara, whom I relieve from the duties of
administering my estate, because I recognize
that his character is not adapted to management
and administration.
The appellants contend that in these clauses the
testatrix has ordered a simple substitution, while the
appellee contends that it is a fideicommissary
substitution.
This will certainly provides for a substitution of heirs,
and of the three cases that might give rise to a simple
substitution (art. 774, Civil Code), only the death of the
instituted heiress before the testatrix would in the
instant case give place to such substitution, inasmuch as
nothing is said of the waiver of inheritance, or incapacity
to accept it. As a matter of fact, however, clause XI
provides for the administration of the estate in case the
heiress instituted should die after the testatrix and
while the substitute heirs are still under age. And it is
evident that, considering the nature of simple
substitution by the heir's death before the testator, and
the fact that by clause XI in connection with clause X,
the substitution is ordered where the heiress instituted
dies after the testatrix, this cannot be a case of simple
substitution.
The existence of a substitution in the will is not and
cannot be denied, and since it cannot be a simple
substitution in the light of the considerations above
stated, let us now see whether the instants case is a
fideicommissary substitution.
In clause IX, the testatrix institutes the plaintiff herein
her sole and universal heiress, and provides that upon
her death (the testatrix's) and after probate of the will
and approval of the report of the committee on claims
and appraisal, said heiress shall receive and enjoy the
 21
whole hereditary estate. Although this clause provides
nothing explicit about substitution, it does not contain
anything in conflict with the idea of fideicommissary
substitution. The fact that the plaintiff was instituted
the sole and universal heiress does not prevent her
children from receiving, upon her death and in
conformity with the express desire of the testatrix, the
latter's hereditary estate, as provided in the following
(above quoted) clauses which cannot be disregarded if
we are to give a correct interpretation of the will. The
word sole does not necessarily exclude the idea
of substitute heirs; and taking these three clauses
together, such word means that the plaintiff is the sole
heiress instituted in the first instance.
The disposition contained in clause IX, that said heiress
shall receive and enjoy the estate, is not incompatible
with a fideicommissary substitution (it certainly is
incompatible with the idea of simple substitution, where
the heiress instituted does not receive the inheritance).
In fact the enjoyment of the inheritance is in conformity
with the idea of fideicommissary substitution, by virtue
of which the heir instituted receives the inheritance and
enjoys it, although at the same time he preserves it in
order to pass it on the second heir. On this point the
illustrious Manresa, in his Civil Code (Vol. 6, pp. 142 and
143, 5th ed.), says:
Or, what amounts to the same thing, the
fideicommissary substitution, as held in the
Resolution of June 25, 1895, February 10, 1899,
and July 19, 1909, requires three things:
1. A first heir called primarily to the enjoyment
of the estate.
2. An obligation clearly imposed upon him to
preserve and transmit to a third person the
whole or a part of the estate.
3. A second heir.
To these requisites, the decision of November
18, 1918 adds another, namely that the
fideicommissarius be entitled to the estate from
the time the testator dies, since he is to inherit
from the latter and not from the fiduciary.
(Emphasis ours.)
It appears from this quotation that the heir instituted or
the fiduciary, as referred to in articles 783 of the Civil
Code, is entitled to enjoy the inheritance. And it might
here be observed, as a timely remark, that the
fideicommissum arising from a fideicommissary
substitution, which is of Roman origin, is not exactly
equivalent to, nor may it be confused with, the English
"trust."
It should also be noted that said clause IX vests in the
heiress only the right to enjoy but not the right to dispose
of the estate. It says, she may enjoy it, but does not say
she may dispose of it. This is an indication of the usufruct
inherent in fideicommissary substitution.
Clause X expressly provides for the substitution. It is true
that it does not say whether the death of the heiress
herein referred to is before or after that of the testatrix;
but from the whole context it appears that in making the
provisions contained in this clause X, the testatrix had in
mind a fideicommissary substitution, since she limits the
transmission of her estate to the children of the heiress
by this provision, "in such wise that my estate shall never
pass out of the hands of my heiress or her children in so
far as it is legally possible." Here it clearly appears that
the testatrix tried to avoid the possibility that the
substitution might later be legally declared null for
transcending the limits fixed by article 781 of the Civil
Code which prescribed that fideicommissary
substitutions shall be valid "provided they do not go
beyond the second degree."
Another clear and outstanding indication of
fideicommissary substitution in clause X is the provision
that the whole estate shall pass unimpaired to the
heiress's children, that is to say the heiress is required to
preserve the whole estate, without diminution, in order
to pass it on in due time to the fideicommissary heirs.
This provision complies with another of the requisites of
fideicommissary substitution according to our quotation
from Manresa inserted above.
Lastly, clause XI more clearly indicates the idea of
fideicommissary substitution, when a provision is therein
made in the event the heiress should die after the
testatrix. That is, said clause anticipates the case where
the instituted heiress should die after the testatrix and
after receiving and enjoying the inheritance.
The foregoing leads us to the conclusion that all the
requisites of a fideicommissary substitution, according to
the quotation from Manresa above inserted, are present
in the case of substitution now under consideration, to
wit:
1. At first heir primarily called to the enjoyment
of the estate. In this case the plaintiff was
instituted an heiress, called to the enjoyment of
the estate, according to clause IX of the will.
2. An obligation clearly imposed upon the heir
to preserve and transmit to a third person the
whole or a part of the estate. Such an obligation
is imposed in clause X which provides that the
"whole estate shall pass unimpaired to her
(heiress's) surviving children;" thus, instead of
leaving the heiress at liberty to dispose of the
estate by will, or of leaving the law to take its
course in case she dies intestate, said clause not
only disposes of the estate in favor of the heiress
instituted, but also provides for the disposition
thereof in case she should die after the
testatrix.
3. A second heir. Such are the children of the
heiress instituted, who are referred to as such
second heirs both in clause X and in clause XI.
Finally, the requisite added by the decision of November
18, 1918, to wit, that the fideicommissarius or second
heir should be entitled to the estate from the time of the
testator's death, which in the instant case, is, rather
than a requisite, a necessary consequence derived from
the nature of the fideicommissary substitution, in which
the second heir does not inherit from the heir first
instituted, but from the testator.
By virtue of this consequence, the inheritance in
question does not belong to the heiress instituted, the
plaintiff herein, as her absolute property, but to her
children, from the moment of the death of the testatrix,
Ana Maria Alcantara.
Therefore, said inheritance, of which the amount
referred to at the beginning, which is on deposit with the
association known as La Urbana in the plaintiff's name,
is a part, does not belong to her nor can it be subject to
the execution of the judgment against Joaquin Perez,
who is not one of the fideicommissary heirs.
 22

The judgment appealed from is affirmed, with costs

against the appellant, Mariano Garchitorena. So ordered.
 23

Republic of the Philippines de la 'Central Luzon Milling Co.',

SUPREME COURT disuelta y en
Manila
liquidacion a P0.15 por accion
SECOND DIVISION ..............................................1
,620.90
G.R. No. L-27952 February 15, 1982
Cuenta de Ahorros en
TESTATE ESTATE OF JOSE EUGENIO RAMIREZ, MARIA el Philippine Trust
LUISA PALACIOS, Administratrix, petitioner-appellee,
vs. Co.............................................
MARCELLE D. VDA. DE RAMIREZ, ET AL., oppositors, ................................................
JORGE and ROBERTO RAMIREZ, legatees, oppositors- . 2,350.73
appellants.
TOTAL...................
...........................
................
ABAD SANTOS, J.: P512,976.97

The main issue in this appeal is the manner of MENOS:

partitioning the testate estate of Jose Eugenio Ramirez
among the principal beneficiaries, namely: his widow Deuda al Banco de las
Marcelle Demoron de Ramirez; his two grandnephews Islas Filipinas, garan-
Roberto and Jorge Ramirez; and his companion Wanda
de Wrobleski. tizada con prenda de las acciones de La
Carlota ......... P 5,000,00
The task is not trouble-free because the widow Marcelle
is a French who lives in Paris, while the companion VALOR
Wanda is an Austrian who lives in Spain. Moreover, the LIQUIDO.................
testator provided for substitutions. ..........................
P507,976.97
Jose Eugenio Ramirez, a Filipino national, died in Spain
on December 11, 1964, with only his widow as The testamentary dispositions are as follows:
compulsory heir. His will was admitted to probate by the
Court of First Instance of Manila, Branch X, on July 27,
A.En nuda propiedad, a D. Roberto y
1965. Maria Luisa Palacios was appointed administratrix
D. Jorge Ramirez, ambas menores de
of the estate. In due time she submitted an inventory of
edad, residentes en Manila, I.F., calle
the estate as follows:
'Alright, No. 1818, Malate, hijos de su
sobrino D. Jose Ma. Ramirez, con
INVENTARIO sustitucion vulgar a favor de sus
respectivos descendientes, y, en su
Una sexta parte (1/6) defecto, con sustitucion vulgar
proindiviso de un te reciprocal entre ambos.

rreno, con sus mejoras y edificaciones, El precedente legado en nuda

situadoen propiedad de la participacion indivisa
de la finca Santa Cruz Building, lo
la Escolta, ordena el testador a favor de los
Manila........................................ legatarios nombrados, en atencion a
..................... P500,000.00 que dicha propiedad fue creacion del
querido padre del otorgante y por ser
aquellos continuadores del apellido
Una sexta parte (1/6)
Ramirez,
proindiviso de dos

B.Y en usufructo a saber:

parcelas de terreno situadas en
Antipolo, Rizal................... 658.34
a. En cuanto a una tercera parte, a
favor de la esposa del testador, Da.
Cuatrocientos noventa
Marcelle Ramirez, domiciliada en IE
y uno (491) acciones
PECO, calle del General Gallieni No. 33,
Seine Francia, con sustitucion vulgar u
de la 'Central Azucarera de la Carlota a fideicomisaria a favor de Da. Wanda de
P17.00 Wrobleski, de Palma de Mallorca, Son
Rapina Avenida de los Reyes 13,
por accion
................................................ b.Y en cuanto a las dos terceras partes
................................8,347.00 restantes, a favor de la nombrada Da.
Wanda de Nrobleski con sustitucion
Diez mil ochocientos vulgar v fideicomisaria a saber:
seize (10,806)
acciones En cuanto a la mitad de dichas dos
terceras partes, a favor de D. Juan
Pablo Jankowski, de Son Rapina Palma
 24
de Mallorca; y encuanto a la mitad
restante, a favor de su sobrino, D.
Horace V. Ramirez, San Luis Building,
Florida St. Ermita, Manila, I.F.
A pesar de las sustituciones
fideiconiisarias precedentemente
ordinadas, las usufiructuarias
nombradas conjuntamente con los nudo
propietarios, podran en cualquier
memento vender a tercero los bienes
objeto delegado, sin intervencion
alguna de los titulares fideicomisaarios.
On June 23, 1966, the administratrix submitted a project
of partition as follows: the property of the deceased is
to be divided into two parts. One part shall go to the
widow 'en pleno dominio" in satisfaction of her legitime;
the other part or "free portion" shall go to Jorge and
Roberto Ramirez "en nuda propriedad." Furthermore,
one third (1/3) of the free portion is charged with the
widow's usufruct and the remaining two-thirds (2/3) with
a usufruct in favor of Wanda.
Jorge and Roberto opposed the project of partition on
the grounds: (a) that the provisions for vulgar
substitution in favor of Wanda de Wrobleski with respect
to the widow's usufruct and in favor of Juan Pablo
Jankowski and Horacio V. Ramirez, with respect to
Wanda's usufruct are invalid because the first heirs
Marcelle and Wanda) survived the testator; (b) that the
provisions for fideicommissary substitutions are also
invalid because the first heirs are not related to the
second heirs or substitutes within the first degree, as
provided in Article 863 of the Civil Code; (c) that the
grant of a usufruct over real property in the Philippines
in favor of Wanda Wrobleski, who is an alien, violates
Section 5, Article III of the Philippine Constitution; and
that (d) the proposed partition of the testator's interest
in the Santa Cruz (Escolta) Building between the widow
Marcelle and the appellants, violates the testator's
express win to give this property to them Nonetheless,
the lower court approved the project of partition in its
order dated May 3, 1967. It is this order which Jorge and
Roberto have appealed to this Court.
1. The widow's legitime.
The appellant's do not question the legality of giving
Marcelle one-half of the estate in full ownership. They
admit that the testator's dispositions impaired his
widow's legitime. Indeed, under Art. 900 of the Civil
Code "If the only survivor is the widow or widower, she
or he shall be entitled to one-half of the hereditary
estate." And since Marcelle alone survived the deceased,
she is entitled to one-half of his estate over which he
could impose no burden, encumbrance, condition or
substitution of any kind whatsoever. (Art. 904, par. 2,
Civil Code.)
It is the one-third usufruct over the free portion which
the appellants question and justifiably so. It appears that
the court a quo approved the usufruct in favor of
Marcelle because the testament provides for a usufruct
in her favor of one-third of the estate. The court a
quo erred for Marcelle who is entitled to one-half of the
estate "en pleno dominio" as her legitime and which is
more than what she is given under the will is not entitled
to have any additional share in the estate. To give
Marcelle more than her legitime will run counter to the
testator's intention for as stated above his dispositions
even impaired her legitime and tended to favor Wanda.
2. The substitutions.
It may be useful to recall that "Substitution is the
appoint- judgment of another heir so that he may enter
into the inheritance in default of the heir originally
instituted." (Art. 857, Civil Code. And that there are
several kinds of substitutions, namely: simple or
common, brief or compendious, reciprocal, and
fideicommissary (Art. 858, Civil Code.) According to
Tolentino, "Although the Code enumerates four classes,
there are really only two principal classes of
substitutions: the simple and the fideicommissary. The
others are merely variations of these two." (111 Civil
Code, p. 185 [1973].)
The simple or vulgar is that provided in Art. 859 of the
Civil Code which reads:
ART. 859. The testator may designate
one or more persons to substitute the
heir or heirs instituted in case such heir
or heirs should die before him, or should
not wish, or should be incapacitated to
accept the inheritance.
A simple substitution, without a
statement of the cases to which it
refers, shall comprise the three
mentioned in the preceding paragraph,
unless the testator has otherwise
provided.
The fideicommissary substitution is described in the Civil
Code as follows:
ART. 863. A fideicommissary
substitution by virtue of which the
fiduciary or first heir instituted is
entrusted with the obligation to
preserve and to transmit to a second
heir the whole or part of inheritance,
shall be valid and shall take effect,
provided such substitution does not go
beyond one degree from the heir
originally instituted, and provided
further that the fiduciary or first heir
and the second heir are living at time of
the death of the testator.
It will be noted that the testator provided for a vulgar
substitution in respect of the legacies of Roberto and
Jorge Ramirez, the appellants, thus: con sustitucion
vulgar a favor de sus respectivos descendientes, y, en su
defecto, con substitution vulgar reciprocal entre ambos.
The appellants do not question the legality of the
substitution so provided. The appellants question the
sustitucion vulgar y fideicomisaria a favor de Da. Wanda
de Wrobleski" in connection with the one-third usufruct
over the estate given to the widow Marcelle However,
this question has become moot because as We have ruled
above, the widow is not entitled to any usufruct.
The appellants also question the sustitucion vulgar y
fideicomisaria in connection with Wanda's usufruct over
two thirds of the estate in favor of Juan Pablo Jankowski
and Horace v. Ramirez.
They allege that the substitution in its vulgar aspect as
void because Wanda survived the testator or stated
differently because she did not predecease the testator.
But dying before the testator is not the only case for
vulgar substitution for it also includes refusal or
incapacity to accept the inheritance as provided in Art.
859 of the Civil Code, supra. Hence, the vulgar
substitution is valid.
 25

As regards the substitution in its fideicommissary aspect, meaningless. Any alien would be able to circumvent the
the appellants are correct in their claim that it is void prohibition by paying money to a Philippine landowner in
for the following reasons: exchange for a devise of a piece of land.

(a) The substitutes (Juan Pablo Jankowski and Horace V. This opinion notwithstanding, We uphold the usufruct in
Ramirez) are not related to Wanda, the heir originally favor of Wanda because a usufruct, albeit a real right,
instituted. Art. 863 of the Civil Code validates a does not vest title to the land in the usufructuary and it
fideicommissary substitution "provided such substitution is the vesting of title to land in favor of aliens which is
does not go beyond one degree from the heir originally proscribed by the Constitution.
instituted."
IN VIEW OF THE FOREGOING, the estate of Jose Eugenio
What is meant by "one degree" from the first heir is Ramirez is hereby ordered distributed as follows:
explained by Tolentino as follows:
One-half (1/2) thereof to his widow as her legitime;
Scaevola Maura, and Traviesas construe
"degree" as designation, substitution, or One-half (1/2) thereof which is the free portion to
transmission. The Supreme Court of Roberto and Jorge Ramirez in naked ownership and the
Spain has decidedly adopted this usufruct to Wanda de Wrobleski with a simple
construction. From this point of view, substitution in favor of Juan Pablo Jankowski and Horace
there can be only one tranmission or V. Ramirez.
substitution, and the substitute need
not be related to the first heir.
The distribution herein ordered supersedes that of the
Manresa, Morell and Sanchez Roman,
court a quo. No special pronouncement as to costs.
however, construe the word "degree" as
generation, and the present Code has
obviously followed this interpretation. SO ORDERED.
by providing that the substitution shall
not go beyond one degree "from the heir
originally instituted." The Code thus
clearly indicates that the second heir
must be related to and be one
generation from the first heir.

From this, it follows that the

fideicommissary can only be either a
child or a parent of the first heir. These
are the only relatives who are one
generation or degree from the fiduciary
(Op. cit., pp. 193-194.)

(b) There is no absolute duty imposed on Wanda to

transmit the usufruct to the substitutes as required by
Arts. 865 and 867 of the Civil Code. In fact, the appellee
admits "that the testator contradicts the establishment
of a fideicommissary substitution when he permits the
properties subject of the usufruct to be sold upon mutual
agreement of the usufructuaries and the naked owners."
(Brief, p. 26.)

3. The usufruct of Wanda.

The appellants claim that the usufruct over real

properties of the estate in favor of Wanda is void because
it violates the constitutional prohibition against the
acquisition of lands by aliens.

The 1935 Constitution which is controlling provides as

follows:

SEC. 5. Save in cases of hereditary

succession, no private agricultural land
shall be transferred or assigned except
to individuals, corporations, or
associations qualified to acquire or hold
lands of the public domain in the
Philippines. (Art. XIII.)

The court a quo upheld the validity of the usufruct given

to Wanda on the ground that the Constitution covers not
only succession by operation of law but also
testamentary succession. We are of the opinion that the
Constitutional provision which enables aliens to acquire
private lands does not extend to testamentary succession
for otherwise the prohibition will be for naught and
 26
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-3891 December 19, 1907
ELENA MORENTE, petitioner-appellant,
vs.
GUMERSINDO DE LA SANTA, respondent-appellee.
Agoncillo and Ilustre, for appellant.
Agustin Alvares, for appellee.
WILLARD, J.:
The will of Consuelo Morente contains the following
clauses:lawphil.net
1. I hereby order that all real estate which may
belong to me shall pass to my husband,
Gumersindo de la Santa.
2. That my said husband shall not leave my
brothers after my death, and that he shall not
marry anyone; should my said husband have
children by anyone, he shall not convey any
portion of the property left by me, except the
one-third part thereof and the two remaining
thirds shall be and remain for my brother
Vicente or his children should he have any.
3. After my death I direct my husband to dwell
in the camarin in which the bakery is located,
which is one of the properties belonging to me.
Her husband, Gumersindo de la Santa, married again
within four months of the death of the testatrix. Elena
Morente, a sister of the deceased, filed a petition in the
proceeding relating to the probate of the will of Consuelo
Morente pending in the Court of First Instance of the
Province of Tayabas in which she alleged the second
marriage of Gumersindo de la Santa and asked that the
legacy to him above-mentioned be annulled. Objection
was made in the court below by the husband to the
procedure followed by the petitioner. The court below,
however, held that the proceeding was proper and from
that holding the husband did not appeal. From the
judgment of the court below, the petitioner, Elena
Morente, appealed.
In its judgment the court denied the petition. It was said,
however, in the decision, as we understand it, that the
husband having married, he had the right to the use of
all the property during his life and that at his death two-
thirds thereof would pass to Vicente, a brother of the
testatrix, and one-third thereof could be disposed of by
the husband. The construction given to the will by the
court below is not accepted by the appellant. She claims
that by the mere act of marriage the husband at once
lost all rights acquired by the will. It is neither alleged
nor proven that any children have been born to the
husband since the death of the testatrix. lawphil.net
Article 790 of the Civil Code provides that testamentary
provisions may be made conditional and article 793
provides that a prohibition against another marriage may
in certain cases be validly imposed upon the widow or
widower. But the question in this case is, Did the
testatrix intend to impose a condition upon the absolute
gift which is contained in the first clauses of the will? It
is to be observed that by the second clause she directs
that her husband shall not leave her sisters. It is provided
in the third clause that he must continue to live in a
certain building. It is provided in the second clause that
he shall not marry again. To no one of these orders is
attached the condition that if he fails to comply with
them he shall lose the legacy given to him by the first
clause of the will. It is nowhere expressly said that if he
does leave the testatrix's sisters, or does not continue to
dwell in the building mentioned in the will he shall
forfeit the property given him in the first clause; nor is
it anywhere expressly said that if he marries again he
shall incur such a loss. But it is expressly provided that if
one event does happen the disposition of the property
contained in the first clause of the will shall be changed.
It is said that if he has children by anyone, two-thirds of
that property shall pass to Vicente, the brother of the
testatrix.
We are bound to construe the will with reference to all
the clauses contained therein, and with reference to
such surrounding circumstances as duly appear in the
case, and after such consideration we can not say that it
was the intention of the testatrix that if her husband
married again he should forfeit the legacy above
mentioned. In other words, there being no express
condition attached to that legacy in reference to the
second marriage, we can not say that any condition can
be implied from the context of the will. In the case of
Chiong Joc-Soy vs. Jaime Vano (8 Phil. Rep., 119), we
held that the legacy contained in the will therein
mentioned was not conditional. It is true that case arose
under article 797 of the Civil Code, which perhaps is not
strictly applicable to this case, but we think that it may
be argued from what is said in article 797 that, in order
to make a testamentary provision conditional, such
condition must fairly appear from the language used in
the will.
Whether the children mentioned in the second clause of
the will are natural children or legitimate children we do
not decide, for no such question is before us, the
contingency mentioned in that part of the clause not
having arisen, and we limit ourselves to saying merely
that by the subsequent marriage of the husband he did
not forfeit the legacy given to him by the first part of the
will. That was the only question before the court below.
the judgment of that court, denying the petition, is
accordingly affirmed, with the costs of this instance
against the appellant. So ordered.