G.R. No.

L-16749 January 31, 1963

IN THE MATTER OF THE TESTATE ESTATE OF EDWARD E. CHRISTENSEN, DECEASED.

ADOLFO C. AZNAR, Executor and LUCY CHRISTENSEN, Heir of the deceased, Executor and Heir-appellees,

vs.

HELEN CHRISTENSEN GARCIA, oppositor-appellant.

M. R. Sotelo for executor and heir-appellees.

Leopoldo M. Abellera and Jovito Salonga for oppositor-appellant.

LABRADOR, J.:

This is an appeal from a decision of the Court of First Instance of Davao, Hon. Vicente N. Cusi, Jr., presiding, in Special
Proceeding No. 622 of said court, dated September 14, 1949, approving among things the final accounts of the executor,
directing the executor to reimburse Maria Lucy Christensen the amount of P3,600 paid by her to Helen Christensen Garcia
as her legacy, and declaring Maria Lucy Christensen entitled to the residue of the property to be enjoyed during her
lifetime, and in case of death without issue, one-half of said residue to be payable to Mrs. Carrie Louise C. Borton, etc., in
accordance with the provisions of the will of the testator Edward E. Christensen. The will was executed in Manila on March
5, 1951 and contains the following provisions:

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, and 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: ....

It is in accordance with the above-quoted provisions that the executor in his final account and project of partition ratified
the payment of only P3,600 to Helen Christensen Garcia and proposed that the residue of the estate be transferred to his
daughter, Maria Lucy Christensen.

Opposition to the approval of the project of partition was filed by Helen Christensen Garcia, insofar as it deprives her
(Helen) of her legitime as an acknowledged natural child, she having been declared by Us in G.R. Nos. L-11483-84 an
acknowledged natural child of the deceased Edward E. Christensen. The legal grounds of opposition are (a) that the
distribution should be governed by the laws of the Philippines, and (b) that said order of distribution is contrary thereto
insofar as it denies to Helen Christensen, one of two acknowledged natural children, one-half of the estate in full
ownership. In amplification of the above grounds it was alleged that the law that should govern the estate of the deceased
Christensen should not be the internal law of California alone, but the entire law thereof because several foreign elements
are involved, that the forum is the Philippines and even if the case were decided in California, Section 946 of the California
Civil Code, which requires that the domicile of the decedent should apply, should be applicable. It was also alleged that
Maria Helen Christensen having been declared an acknowledged natural child of the decedent, she is deemed for all
purposes legitimate from the time of her birth.

The court below ruled that as Edward E. Christensen was a citizen of the United States and of the State of California at the
time of his death, the successional rights and intrinsic validity of the provisions in his will are to be governed by the law of
California, in accordance with which a testator has the right to dispose of his property in the way he desires, because the
right of absolute dominion over his property is sacred and inviolable (In re McDaniel's Estate, 77 Cal. Appl. 2d 877, 176 P.
2d 952, and In re Kaufman, 117 Cal. 286, 49 Pac. 192, cited in page 179, Record on Appeal). Oppositor Maria Helen
Christensen, through counsel, filed various motions for reconsideration, but these were denied. Hence, this appeal.

The most important assignments of error are as follows:

THE LOWER COURT ERRED IN IGNORING THE DECISION OF THE HONORABLE SUPREME COURT THAT HELEN IS THE
ACKNOWLEDGED NATURAL CHILD OF EDWARD E. CHRISTENSEN AND, CONSEQUENTLY, IN DEPRIVING HER OF HER JUST
SHARE IN THE INHERITANCE.

II
THE LOWER COURT ERRED IN ENTIRELY IGNORING AND/OR FAILING TO RECOGNIZE THE EXISTENCE OF SEVERAL FACTORS,
ELEMENTS AND CIRCUMSTANCES CALLING FOR THE APPLICATION OF INTERNAL LAW.

III

THE LOWER COURT ERRED IN FAILING TO RECOGNIZE THAT UNDER INTERNATIONAL LAW, PARTICULARLY UNDER THE
RENVOI DOCTRINE, THE INTRINSIC VALIDITY OF THE TESTAMENTARY DISPOSITION OF THE DISTRIBUTION OF THE ESTATE
OF THE DECEASED EDWARD E. CHRISTENSEN SHOULD BE GOVERNED BY THE LAWS OF THE PHILIPPINES.

IV

THE LOWER COURT ERRED IN NOT DECLARING THAT THE SCHEDULE OF DISTRIBUTION SUBMITTED BY THE EXECUTOR IS
CONTRARY TO THE PHILIPPINE LAWS.

THE LOWER COURT ERRED IN NOT DECLARING THAT UNDER THE PHILIPPINE LAWS HELEN CHRISTENSEN GARCIA IS
ENTITLED TO ONE-HALF (1/2) OF THE ESTATE IN FULL OWNERSHIP.

There is no question that Edward E. Christensen was a citizen of the United States and of the State of California at the time
of his death. But there is also no question that at the time of his death he was domiciled in the Philippines, as witness the
following facts admitted by the executor himself in appellee's brief:

In the proceedings for admission of the will to probate, the facts of record show that the deceased Edward E. Christensen
was born on November 29, 1875 in New York City, N.Y., U.S.A.; his first arrival in the Philippines, as an appointed school
teacher, was on July 1, 1901, on board the U.S. Army Transport "Sheridan" with Port of Embarkation as the City of San
Francisco, in the State of California, U.S.A. He stayed in the Philippines until 1904.

In December, 1904, Mr. Christensen returned to the United States and stayed there for the following nine years until 1913,
during which time he resided in, and was teaching school in Sacramento, California.

Mr. Christensen's next arrival in the Philippines was in July of the year 1913. However, in 1928, he again departed the
Philippines for the United States and came back here the following year, 1929. Some nine years later, in 1938, he again
returned to his own country, and came back to the Philippines the following year, 1939.
Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and approved by this
Honorable Court, without prejudice to the parties adducing other evidence to prove their case not covered by this
stipulation of facts. 1äwphï1.ñët

Being an American citizen, Mr. Christensen was interned by the Japanese Military Forces in the Philippines during World
War II. Upon liberation, in April 1945, he left for the United States but returned to the Philippines in December, 1945.
Appellees Collective Exhibits "6", CFI Davao, Sp. Proc. 622, as Exhibits "AA", "BB" and "CC-Daney"; Exhs. "MM", "MM-l",
"MM-2-Daney" and p. 473, t.s.n., July 21, 1953.)

In April, 1951, Edward E. Christensen returned once more to California shortly after the making of his last will and
testament (now in question herein) which he executed at his lawyers' offices in Manila on March 5, 1951. He died at the
St. Luke's Hospital in the City of Manila on April 30, 1953. (pp. 2-3)

In arriving at the conclusion that the domicile of the deceased is the Philippines, we are persuaded by the fact that he was
born in New York, migrated to California and resided there for nine years, and since he came to the Philippines in 1913 he
returned to California very rarely and only for short visits (perhaps to relatives), and considering that he appears never to
have owned or acquired a home or properties in that state, which would indicate that he would ultimately abandon the
Philippines and make home in the State of California.

Sec. 16. Residence is a term used with many shades of meaning from mere temporary presence to the most permanent
abode. Generally, however, it is used to denote something more than mere physical presence. (Goodrich on Conflict of
Laws, p. 29)

As to his citizenship, however, We find that the citizenship that he acquired in California when he resided in Sacramento,
California from 1904 to 1913, was never lost by his stay in the Philippines, for the latter was a territory of the United States
(not a state) until 1946 and the deceased appears to have considered himself as a citizen of California by the fact that
when he executed his will in 1951 he declared that he was a citizen of that State; so that he appears never to have intended
to abandon his California citizenship by acquiring another. This conclusion is in accordance with the following principle
expounded by Goodrich in his Conflict of Laws.

The terms "'residence" and "domicile" might well be taken to mean the same thing, a place of permanent abode. But
domicile, as has been shown, has acquired a technical meaning. Thus one may be domiciled in a place where he has never
been. And he may reside in a place where he has no domicile. The man with two homes, between which he divides his
time, certainly resides in each one, while living in it. But if he went on business which would require his presence for
several weeks or months, he might properly be said to have sufficient connection with the place to be called a resident. It
is clear, however, that, if he treated his settlement as continuing only for the particular business in hand, not giving up his
former "home," he could not be a domiciled New Yorker. Acquisition of a domicile of choice requires the exercise of
intention as well as physical presence. "Residence simply requires bodily presence of an inhabitant in a given place, while
domicile requires bodily presence in that place and also an intention to make it one's domicile." Residence, however, is a
term used with many shades of meaning, from the merest temporary presence to the most permanent abode, and it is
not safe to insist that any one use et the only proper one. (Goodrich, p. 29)
The law that governs the validity of his testamentary dispositions is defined in Article 16 of the Civil Code of the Philippines,
which is as follows:

ART. 16. Real property as well as personal property is subject to the law of the country where it is situated.

However, intestate and testamentary successions, both with respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the
person whose succession is under consideration, whatever may be the nature of the property and regardless of the
country where said property may be found.

The application of this article in the case at bar requires the determination of the meaning of the term "national law" is
used therein.

There is no single American law governing the validity of testamentary provisions in the United States, each state of the
Union having its own private law applicable to its citizens only and in force only within the state. The "national law"
indicated in Article 16 of the Civil Code above quoted can not, therefore, possibly mean or apply to any general American
law. So it can refer to no other than the private law of the State of California.

The next question is: What is the law in California governing the disposition of personal property? The decision of the
court below, sustains the contention of the executor-appellee that under the California Probate Code, a testator may
dispose of his property by will in the form and manner he desires, citing the case of Estate of McDaniel, 77 Cal. Appl. 2d
877, 176 P. 2d 952. But appellant invokes the provisions of Article 946 of the Civil Code of California, which is as follows:

If there is no law to the contrary, in the place where personal property is situated, it is deemed to follow the person of its
owner, and is governed by the law of his domicile.

The existence of this provision is alleged in appellant's opposition and is not denied. We have checked it in the California
Civil Code and it is there. Appellee, on the other hand, relies on the case cited in the decision and testified to by a witness.
(Only the case of Kaufman is correctly cited.) It is argued on executor's behalf that as the deceased Christensen was a
citizen of the State of California, the internal law thereof, which is that given in the abovecited case, should govern the
determination of the validity of the testamentary provisions of Christensen's will, such law being in force in the State of
California of which Christensen was a citizen. Appellant, on the other hand, insists that Article 946 should be applicable,
and in accordance therewith and following the doctrine of the renvoi, the question of the validity of the testamentary
provision in question should be referred back to the law of the decedent's domicile, which is the Philippines.

The theory of doctrine of renvoi has been defined by various authors, thus:
The problem has been stated in this way: "When the Conflict of Laws rule of the forum refers a jural matter to a foreign
law for decision, is the reference to the purely internal rules of law of the foreign system; i.e., to the totality of the foreign
law minus its Conflict of Laws rules?"

On logic, the solution is not an easy one. The Michigan court chose to accept the renvoi, that is, applied the Conflict of
Laws rule of Illinois which referred the matter back to Michigan law. But once having determined the the Conflict of Laws
principle is the rule looked to, it is difficult to see why the reference back should not have been to Michigan Conflict of
Laws. This would have resulted in the "endless chain of references" which has so often been criticized be legal writers.
The opponents of the renvoi would have looked merely to the internal law of Illinois, thus rejecting the renvoi or the
reference back. Yet there seems no compelling logical reason why the original reference should be the internal law rather
than to the Conflict of Laws rule. It is true that such a solution avoids going on a merry-go-round, but those who have
accepted the renvoi theory avoid this inextricabilis circulas by getting off at the second reference and at that point applying
internal law. Perhaps the opponents of the renvoi are a bit more consistent for they look always to internal law as the rule
of reference.

Strangely enough, both the advocates for and the objectors to the renvoi plead that greater uniformity will result from
adoption of their respective views. And still more strange is the fact that the only way to achieve uniformity in this choice-
of-law problem is if in the dispute the two states whose laws form the legal basis of the litigation disagree as to whether
the renvoi should be accepted. If both reject, or both accept the doctrine, the result of the litigation will vary with the
choice of the forum. In the case stated above, had the Michigan court rejected the renvoi, judgment would have been
against the woman; if the suit had been brought in the Illinois courts, and they too rejected the renvoi, judgment would
be for the woman. The same result would happen, though the courts would switch with respect to which would hold
liability, if both courts accepted the renvoi.

The Restatement accepts the renvoi theory in two instances: where the title to land is in question, and where the validity
of a decree of divorce is challenged. In these cases the Conflict of Laws rule of the situs of the land, or the domicile of the
parties in the divorce case, is applied by the forum, but any further reference goes only to the internal law. Thus, a person's
title to land, recognized by the situs, will be recognized by every court; and every divorce, valid by the domicile of the
parties, will be valid everywhere. (Goodrich, Conflict of Laws, Sec. 7, pp. 13-14.)

X, a citizen of Massachusetts, dies intestate, domiciled in France, leaving movable property in Massachusetts, England,
and France. The question arises as to how this property is to be distributed among X's next of kin.

Assume (1) that this question arises in a Massachusetts court. There the rule of the conflict of laws as to intestate
succession to movables calls for an application of the law of the deceased's last domicile. Since by hypothesis X's last
domicile was France, the natural thing for the Massachusetts court to do would be to turn to French statute of
distributions, or whatever corresponds thereto in French law, and decree a distribution accordingly. An examination of
French law, however, would show that if a French court were called upon to determine how this property should be
distributed, it would refer the distribution to the national law of the deceased, thus applying the Massachusetts statute
of distributions. So on the surface of things the Massachusetts court has open to it alternative course of action: (a) either
to apply the French law is to intestate succession, or (b) to resolve itself into a French court and apply the Massachusetts
statute of distributions, on the assumption that this is what a French court would do. If it accepts the so-called renvoi
doctrine, it will follow the latter course, thus applying its own law.
This is one type of renvoi. A jural matter is presented which the conflict-of-laws rule of the forum refers to a foreign law,
the conflict-of-laws rule of which, in turn, refers the matter back again to the law of the forum. This is renvoi in the
narrower sense. The German term for this judicial process is 'Ruckverweisung.'" (Harvard Law Review, Vol. 31, pp. 523-
571.)

After a decision has been arrived at that a foreign law is to be resorted to as governing a particular case, the further
question may arise: Are the rules as to the conflict of laws contained in such foreign law also to be resorted to? This is a
question which, while it has been considered by the courts in but a few instances, has been the subject of frequent
discussion by textwriters and essayists; and the doctrine involved has been descriptively designated by them as the
"Renvoyer" to send back, or the "Ruchversweisung", or the "Weiterverweisung", since an affirmative answer to the
question postulated and the operation of the adoption of the foreign law in toto would in many cases result in returning
the main controversy to be decided according to the law of the forum. ... (16 C.J.S. 872.)

Another theory, known as the "doctrine of renvoi", has been advanced. The theory of the doctrine of renvoi is that the
court of the forum, in determining the question before it, must take into account the whole law of the other jurisdiction,
but also its rules as to conflict of laws, and then apply the law to the actual question which the rules of the other jurisdiction
prescribe. This may be the law of the forum. The doctrine of the renvoi has generally been repudiated by the American
authorities. (2 Am. Jur. 296)

The scope of the theory of renvoi has also been defined and the reasons for its application in a country explained by Prof.
Lorenzen in an article in the Yale Law Journal, Vol. 27, 1917-1918, pp. 529-531. The pertinent parts of the article are quoted
herein below:

The recognition of the renvoi theory implies that the rules of the conflict of laws are to be understood as incorporating
not only the ordinary or internal law of the foreign state or country, but its rules of the conflict of laws as well. According
to this theory 'the law of a country' means the whole of its law.

xxx xxx xxx

Von Bar presented his views at the meeting of the Institute of International Law, at Neuchatel, in 1900, in the form of the
following theses:

(1) Every court shall observe the law of its country as regards the application of foreign laws.

(2) Provided that no express provision to the contrary exists, the court shall respect:
(a) The provisions of a foreign law which disclaims the right to bind its nationals abroad as regards their personal statute,
and desires that said personal statute shall be determined by the law of the domicile, or even by the law of the place
where the act in question occurred.

(b) The decision of two or more foreign systems of law, provided it be certain that one of them is necessarily competent,
which agree in attributing the determination of a question to the same system of law.

xxx xxx xxx

If, for example, the English law directs its judge to distribute the personal estate of an Englishman who has died domiciled
in Belgium in accordance with the law of his domicile, he must first inquire whether the law of Belgium would distribute
personal property upon death in accordance with the law of domicile, and if he finds that the Belgian law would make the
distribution in accordance with the law of nationality — that is the English law — he must accept this reference back to
his own law.

We note that Article 946 of the California Civil Code is its conflict of laws rule, while the rule applied in In re Kaufman,
Supra, its internal law. If the law on succession and the conflict of laws rules of California are to be enforced jointly, each
in its own intended and appropriate sphere, the principle cited In re Kaufman should apply to citizens living in the State,
but Article 946 should apply to such of its citizens as are not domiciled in California but in other jurisdictions. The rule laid
down of resorting to the law of the domicile in the determination of matters with foreign element involved is in accord
with the general principle of American law that the domiciliary law should govern in most matters or rights which follow
the person of the owner.

When a man dies leaving personal property in one or more states, and leaves a will directing the manner of distribution
of the property, the law of the state where he was domiciled at the time of his death will be looked to in deciding legal
questions about the will, almost as completely as the law of situs is consulted in questions about the devise of land. It is
logical that, since the domiciliary rules control devolution of the personal estate in case of intestate succession, the same
rules should determine the validity of an attempted testamentary dispostion of the property. Here, also, it is not that the
domiciliary has effect beyond the borders of the domiciliary state. The rules of the domicile are recognized as controlling
by the Conflict of Laws rules at the situs property, and the reason for the recognition as in the case of intestate succession,
is the general convenience of the doctrine. The New York court has said on the point: 'The general principle that a
dispostiton of a personal property, valid at the domicile of the owner, is valid anywhere, is one of the universal application.
It had its origin in that international comity which was one of the first fruits of civilization, and it this age, when business
intercourse and the process of accumulating property take but little notice of boundary lines, the practical wisdom and
justice of the rule is more apparent than ever. (Goodrich, Conflict of Laws, Sec. 164, pp. 442-443.)

Appellees argue that what Article 16 of the Civil Code of the Philippines pointed out as the national law is the internal law
of California. But as above explained the laws of California have prescribed two sets of laws for its citizens, one for
residents therein and another for those domiciled in other jurisdictions. Reason demands that We should enforce the
California internal law prescribed for its citizens residing therein, and enforce the conflict of laws rules for the citizens
domiciled abroad. If we must enforce the law of California as in comity we are bound to go, as so declared in Article 16 of
our Civil Code, then we must enforce the law of California in accordance with the express mandate thereof and as above
explained, i.e., apply the internal law for residents therein, and its conflict-of-laws rule for those domiciled abroad.
It is argued on appellees' behalf that the clause "if there is no law to the contrary in the place where the property is
situated" in Sec. 946 of the California Civil Code refers to Article 16 of the Civil Code of the Philippines and that the law to
the contrary in the Philippines is the provision in said Article 16 that the national law of the deceased should govern. This
contention can not be sustained. As explained in the various authorities cited above the national law mentioned in Article
16 of our Civil Code is the law on conflict of laws in the California Civil Code, i.e., Article 946, which authorizes the reference
or return of the question to the law of the testator's domicile. The conflict of laws rule in California, Article 946, Civil Code,
precisely refers back the case, when a decedent is not domiciled in California, to the law of his domicile, the Philippines in
the case at bar. The court of the domicile can not and should not refer the case back to California; such action would leave
the issue incapable of determination because the case will then be like a football, tossed back and forth between the two
states, between the country of which the decedent was a citizen and the country of his domicile. The Philippine court
must apply its own law as directed in the conflict of laws rule of the state of the decedent, if the question has to be
decided, especially as the application of the internal law of California provides no legitime for children while the Philippine
law, Arts. 887(4) and 894, Civil Code of the Philippines, makes natural children legally acknowledged forced heirs of the
parent recognizing them.

The Philippine cases (In re Estate of Johnson, 39 Phil. 156; Riera vs. Palmaroli, 40 Phil. 105; Miciano vs. Brimo, 50 Phil. 867;
Babcock Templeton vs. Rider Babcock, 52 Phil. 130; and Gibbs vs. Government, 59 Phil. 293.) cited by appellees to support
the decision can not possibly apply in the case at bar, for two important reasons, i.e., the subject in each case does not
appear to be a citizen of a state in the United States but with domicile in the Philippines, and it does not appear in each
case that there exists in the state of which the subject is a citizen, a law similar to or identical with Art. 946 of the California
Civil Code.

We therefore find that as the domicile of the deceased Christensen, a citizen of California, is the Philippines, the validity
of the provisions of his will depriving his acknowledged natural child, the appellant, should be governed by the Philippine
Law, the domicile, pursuant to Art. 946 of the Civil Code of California, not by the internal law of California..

WHEREFORE, the decision appealed from is hereby reversed and the case returned to the lower court with instructions
that the partition be made as the Philippine law on succession provides. Judgment reversed, with costs against appellees.

Padilla, Bautista Angelo, Concepcion, Reyes, Barrera, Paredes, Dizon, Regala and Makalintal, JJ., concur.

Bengzon, C.J., took no part.

Today is Sunday, September 09, 2018

G.R. No. 76714 June 2, 1994

SALUD TEODORO VDA. DE PEREZ, petitioner,

vs.

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

Natividad T. Perez for petitioner.

Benedicto T. Librojo for private respondents.

QUIASON, J.:

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

We grant the petition.

II

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

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

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

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

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

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

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

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

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

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

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

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

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

Dr. Rafael Cunanan, Sr., to be his attorney-in-fact; and (5) that Dr. Rafael Cunanan, Sr. is qualified to be a regular
administrator "as practically all of the subject estate in the Philippines belongs to their brother, Dr. Jose F. Cunanan"
(Records, pp. 118-122). Hence, they prayed: (1) that the proceedings in the case be declared null and void; (2) that the
appointment of petitioner as special administratrix be set aside; and (3) that Dr. Rafael Cunanan, Sr. be appointed the
regular administrator of the estate of the deceased spouses.

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

In her opposition, petitioner asserted: (1) that she was the "sole and only heir" of her daughter, Dr. Evelyn Perez-Cunanan
to the exclusion of the "Cunanan collaterals"; hence they were complete strangers to the proceedings and were not
entitled to notice; (2) that she could not have "concealed" the name and address of Dr. Rafael G. Cunanan, Jr. because his
name was prominently mentioned not only in the two wills but also in the decrees of the American surrogate court; (3)
that the rule applicable to the case is Rule 77, not Rule 76, because it involved the allowance of wills proved outside of
the Philippines and that nowhere in Section 2 of Rule 77 is there a mention of notice being given to the executor who, by
the same provision, should himself file the necessary ancillary proceedings in this country; (4) that even if the Bulacan
estate came from the "capital" of Dr. Jose F. Cunanan, he had willed all his worldly goods to his wife and nothing to his
brothers and sisters; and (5) that Dr. Rafael G. Cunanan, Jr. had unlawfully disbursed $215,000.00 to the Cunanan heirs,
misappropriated $15,000.00 for himself and irregularly assigned assets of the estates to his American lawyer (Records, pp.
151-160).
In their reply, the Cunanan heirs stressed that on November 24, 1982, petitioner and the Cunanan heirs had entered into
an agreement in the United States "to settle and divide equally the estates," and that under Section 2 of Rule 77 the "court
shall fix a time and place for the hearing and cause notice thereof to be given as in case of an original will presented for
allowance" (Records, pp. 184-185).

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

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

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

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

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

On the same day, Judge de la Llana issued another order, denying the motion of petitioner for the suspension of the
proceedings but gave her 15 days upon arrival in the country within which to act on the other order issued that same day.
Contending that the second portion of the second order left its finality to the discretion of counsel for petitioner, the
Cunanans filed a motion for the reconsideration of the objectionable portion of the said order so that it would conform
with the pertinent provisions of the Judiciary Reorganization Act of 1980 and the Interim Rules of Court.
On April 30, 1985, the respondent Judge of Branch 18 of the Regional Trial Court, Malolos, to which the reprobate case
was reassigned, issued an order stating that "(W)hen the last will and testament . . . was denied probate," the case was
terminated and therefore all orders theretofore issued should be given finality. The same Order amended the February
21, 1984 Order by requiring petitioner to turn over to the estate the inventoried property. It considered the proceedings
for all intents and purposes, closed (Records,

p. 302).

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

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

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

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

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

However, without waiting for petitioner to adduce the additional evidence, respondent Judge ruled in his order dated
June 20, 1986 that he found "no compelling reason to disturb its ruling of March 31, 1986" but allowed petitioner to "file
anew the appropriate probate proceedings for each of the testator" (Records, p. 391).
The Order dated June 20, 1986 prompted petitioner to file a second motion for reconsideration stating that she was "ready
to submit further evidence on the law obtaining in the State of New York" and praying that she be granted "the opportunity
to present evidence on what the law of the State of New York has on the probate and allowance of wills" (Records, p.
393).

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

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

On September 11, 1986, petitioner filed a supplement to the motion for reconsideration, citing Benigno v. De La Peña, 57
Phil. 305 (1932) (Records,

p. 411), but respondent Judge found that this pleading had been filed out of time and that the adverse party had not been
furnished with a copy thereof. In her compliance, petitioner stated that she had furnished a copy of the motion to the
counsel of the Cunanan heirs and reiterated her motion for a "final ruling on her supplemental motion" (Records, p. 421).

On November 19, respondent Judge issued an order, denying the motion for reconsideration filed by petitioner on the
grounds that "the probate of separate wills of two or more different persons even if they are husband and wife cannot be
undertaken in a single petition" (Records, pp. 376-378).

Hence, petitioner instituted the instant petition, arguing that the evidence offered at the hearing of April 11, 1983
sufficiently proved the laws of the State of New York on the allowance of wills, and that the separate wills of the Cunanan
spouses need not be probated in separate proceedings.

II

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

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

(Exhs. "F-1" and "G-1");

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

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

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

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

(g) certifications from the Secretary of State that Judge Reagan is duly authorized to grant exemplified copies of the
decree of probate, letters testamentary and all proceedings had and proofs duly taken

(Exhs. "H-1" and "I-1");

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

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

"I-10");

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

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

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

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

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

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

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

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

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

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

A literal application of the Rules should be avoided if they would only result in the delay in the administration of justice
(Acain v. Intermediate Appellate Court, 155 SCRA 100 [1987]; Roberts v. Leonidas, 129 SCRA 33 [1984]).
What the law expressly prohibits is the making of joint wills either for the testator’s reciprocal benefit or for the benefit
of a third person (Civil Code of the Philippines, Article 818). In the case at bench, the Cunanan spouses executed separate
wills. Since the two wills contain essentially the same provisions and pertain to property which in all probability are
conjugal in nature, practical considerations dictate their joint probate. As this Court has held a number of times, it will
always strive to settle the entire controversy in a single proceeding leaving no root or branch to bear the seeds of future
litigation (Motoomull v. Dela Paz, 187 SCRA 743 [1990]).

This petition cannot be completely resolved without touching on a very glaring fact — petitioner has always considered
herself the sole heir of

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

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

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

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

SO ORDERED.

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

G.R. No. 17857 June 12, 1922

In re will of Josefa Zalamea y Abella, deceased.

PEDRO UNSON, petitioner-appellee,

vs.

ANTONIO ABELLA, ET AL., opponents-appellants.

Crispin Oben for appellants.

Pedro Guevarra and Carlos Ledesma for appellee.

VILLAMOR, J.:

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

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

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

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

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

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

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

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

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

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

In the case of Avera vs. Garcia and Rodriguez (42 Phil., 145), recently decided by this court, in deciding the question
whether a will can be admitted to probate, where opposition is made, upon the proof of a single attesting witness, without
producing or accounting for the absence of the other two, it was said; "while it is undoubtedly true that an uncontested
will may be proved by the testimony of only one of the three attesting witnesses, nevertheless in Cabang vs. Delfinado (34
Phil., 291), this court declared after an elaborate examination of the American and English authorities that when a contest
is instituted, all of the attesting witnesses must be examined, if alive and within reach of the process of the court.
In the present case no explanation was made at the trial as to why all three of the attesting witnesses were not produced,
but the probable reason is found in the fact that, although the petition for the probate of this will had been pending from
December 21, 1917, until the date set for the hearing, which was April 5, 1919, no formal contest was entered until the
very day set for the hearing; and it is probable that the attorney for the • proponent, believing in good faith that probate
would not be contested, repaired to the court with only one of the three attesting witnesses at hand, and upon finding
that the will was contested, incautiously permitted the case to go to proof without asking for a postponement of the trial
in order that he might produce all the attesting witnesses.

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

It appears, however, that this point was not raised by the appellant in the lower court either upon the submission of the
cause for determination in that court or upon the occasion of the filing of the motion for a new trial. Accordingly it is
insisted for the appellee that this question cannot now be raised for t he first time in this court. We believe this point is
well taken, and the first assignment of error must be declared not to be well taken. This exact question has been decided
by the Supreme Court of California adversely to the contention of the appellant, and we see no reason why the same rule
of practice should not be observed by us. (Estate of McCarty, 58 Cal., 335, 337.)

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

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

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

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

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

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

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

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

And the attestation clause is as follows:

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

(Sgd.) GONZALO ABAYA,

EUGENIO ZALAMEA,

PEDRO DE JESUS.

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

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

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

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

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

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

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

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

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

G.R. No. 76464 February 29, 1988

TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO CASIANO, CONSTANCIO MALOTO, PURIFICACION
MIRAFLOR, ROMAN CATHOLIC CHURCH OF MOLO, AND ASILO DE MOLO, petitioners,

vs.

COURT OF APPEALS, PANFILO MALOTO AND FELINO MALOTO, respondents.

SARMIENTO, J.:

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

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

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

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

Thus, on May 24, 1967, Aldina and Constancio, joined by the other devisees and legatees named in the will, filed in Special
Proceeding No. 1736 a motion for reconsideration and annulment of the proceedings therein and for the allowance of the
will When the trial court denied their motion, the petitioner came to us by way of a petition for certiorari and mandamus
assailing the orders of the trial court . 3 As we stated earlier, we dismissed that petition and advised that a separate
proceeding for the probate of the alleged will would be the appropriate vehicle to thresh out the matters raised by the
petitioners.
Significantly, the appellate court while finding as inconclusive the matter on whether or not the document or papers
allegedly burned by the househelp of Adriana, Guadalupe Maloto Vda. de Coral, upon instructions of the testatrix, was
indeed the will, contradicted itself and found that the will had been revoked. The respondent court stated that the
presence of animus revocandi in the destruction of the will had, nevertheless, been sufficiently proven. The appellate
court based its finding on the facts that the document was not in the two safes in Adriana's residence, by the testatrix
going to the residence of Atty. Hervas to retrieve a copy of the will left in the latter's possession, and, her seeking the
services of Atty. Palma in order to have a new will drawn up. For reasons shortly to be explained, we do not view such
facts, even considered collectively, as sufficient bases for the conclusion that Adriana Maloto's will had been effectively
revoked.

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

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

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

(1) By implication of law; or

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

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

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

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

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

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

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

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

For one, there is yet, strictly speaking, no final judgment rendered insofar as the probate of Adriana Maloto's will is
concerned. The decision of the trial court in Special Proceeding No. 1736, although final, involved only the intestate
settlement of the estate of Adriana. As such, that judgment could not in any manner be construed to be final with respect
to the probate of the subsequently discovered will of the decedent. Neither is it a judgment on the merits of the action
for probate. This is understandably so because the trial court, in the intestate proceeding, was without jurisdiction to rule
on the probate of the contested will . 6 After all, an action for probate, as it implies, is founded on the presence of a will
and with the objective of proving its due execution and validity, something which can not be properly done in an intestate
settlement of estate proceeding which is predicated on the assumption that the decedent left no will. Thus, there is
likewise no Identity between the cause of action in intestate proceeding and that in an action for probate. Be that as it
may, it would be remembered that it was precisely because of our ruling in G.R. No. L-30479 that the petitioners instituted
this separate action for the probate of the late Adriana Maloto's will. Hence, on these grounds alone, the position of the
private respondents on this score can not be sustained.
One last note. The private respondents point out that revocation could be inferred from the fact that "(a) major and
substantial bulk of the properties mentioned in the will had been disposed of: while an insignificant portion of the
properties remained at the time of death (of the testatrix); and, furthermore, more valuable properties have been
acquired after the execution of the will on January 3,1940." 7 Suffice it to state here that as these additional matters raised
by the private respondents are extraneous to this special proceeding, they could only be appropriately taken up after the
will has been duly probated and a certificate of its allowance issued.

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

This Decision is IMMEDIATELY EXECUTORY.

So ordered.

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

Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA. DE MOLO, petitioner-appellee,

vs.

LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants.

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

Delgado & Flores for appellee.

BAUTISTA ANGELO, J.:

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

Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay, province of Rizal, without leaving any
forced heir either in the descending or ascending line. He was survived, however, by his wife, the herein petitioner Juana
Juan Vda. de Molo, and by his nieces and nephew, the oppositors-appellants, Luz Gliceria and Cornelio, all surnamed Molo,
who were the legitimate children of Candido Molo y Legaspi, deceased brother of the testator. Mariano Molo y Legaspi
left two wills, one executed on August 17, 1918, (Exhibit A) and another executed on June 20, 1939. (Exhibit I). The later
will executed in 1918.
On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court of First Instance of Rizal a petition, which was docketed
as special proceeding No. 8022 seeking the probate of the will executed by the deceased on June 20, 1939. There being
no opposition, the will was probated. However, upon petition filed by the herein oppositors, the order of the court
admitting the will to probate was set aside and the case was reopened. After hearing, at which both parties presented
their evidence, the court rendered decision denying the probate of said will on the ground that the petitioner failed to
prove that the same was executed in accordance with law.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Apropos of this question, counsel for oppositors make the remark that, while they do not disagree with the soundness of
the ruling laid down in the Samson case, there is reason to abandon said ruling because it is archaic or antiquated and
runs counter to the modern trend prevailing in American jurisprudence. They maintain that said ruling is no longer
controlling but merely represents the point of view of the minority and should, therefore, be abandoned, more so if we
consider the fact that section 623 of our Code of Civil Procedure, which governs the revocation of wills, is of American
origin and as such should follow the prevailing trend of the majority view in the United States. A long line of authorities is
cited in support of this contention. And these authorities hold the view, that "an express revocation is immediately
effective upon the execution of the subsequent will, and does not require that it first undergo the formality of a probate
proceeding". (p. 63, appellants' brief .
While they are many cases which uphold the view entertained by counsel for oppositors, and that view appears to be in
controlling the states where the decisions had been promulgated, however, we are reluctant to fall in line with the
assertion that is now the prevailing view in the United States. In the search we have made of American authorities on the
subject, we found ourselves in a pool of conflicting opinions perhaps because of the peculiar provisions contained in the
statutes adopted by each State in the subject of revocation of wills. But the impression we gathered from a review and
the study of the pertinent authorities is that the doctrine laid down in the Samson case is still a good law. On page 328 of
the American Jurisprudence Vol. 57, which is a revision Published in 1948, we found the following passages which in our
opinion truly reflect the present trend of American jurisprudence on this matter affecting the revocation of wills:

SEC. 471. Observance of Formalities in Execution of Instrument. — Ordinarily, statutes which permit the revocation
of a will by another writing provide that to be effective as a revocation, the writing must be executed with the same
formalities which are required to be observed in the execution of a will. Accordingly, where, under the statutes, attestation
is necessary to the making of a valid will, an unattested non testamentary writing is not effective to revoke a prior will. It
has been held that a writing fails as a revoking instrument where it is not executed with the formalities requisite for the
execution of a will, even though it is inscribed on the will itself, although it may effect a revocation by cancellation or
obliteration of the words of the will. A testator cannot reserve to himself the power to modify a will by a written instrument
subsequently prepared but not executed in the manner required for a will.

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

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

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

These treaties cannot be mistaken. They uphold the view on which the ruling in the Samson case is predicated. They reflect
the opinion that this ruling is sound and good and for this reason, we see no justification for abondoning it as now
suggested by counsel for the oppositors.
It is true that our law on the matter (sec. 623, Code Civil Procedure) provides that a will may be some will, codicil, or other
writing executed as proved in case of wills" but it cannot be said that the 1939 will should be regarded, not as a will within
the meaning of said word, but as "other writing executed as provided in the case of wills", simply because it was denied
probate. And even if it be regarded as any other writing within the meaning of said clause, there is authority for holding
that unless said writing is admitted to probate, it cannot have the effect of revocation. (See 57 Am. Jur. pp. 329-330).

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

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

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

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

This doctrine is known as that of dependent relative revocation, and is usually applied where the testator cancels or
destroys a will or executes an instrument intended to revoke a will with a present intention to make a new testamentary
disposition as a substitute for the old, and the new disposition is not made or, if made, fails of effect for same reason. The
doctrine is n limited to the existence of some other document, however, and has been applied where a will was destroyed
as a consequence of a mistake of law. . . . (68 C.J.P. 799).
The rule is established that where the act of destruction is connected with the making of another will so as fairly to raise
the inference that the testator meant the revocation of the old to depend upon the efficacy of a new disposition intended
to be substituted, the revocation will be conditional and dependent upon the efficacy of the new disposition; and if, for
any reason, the new will intended to be made as a substitute is inoperative, the revocation fails and the original will
remains in full force. (Gardner, pp. 232, 233.)

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

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

The remaining question to be determined refers to the sufficiency of the evidence to prove the due execution of the will.

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

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

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

G.R. No. L-32797 March 27, 1974

L. TOLENTINO, Petitioner, vs. FRANCISCO DE JESUS, AQUILINO PASCUAL, and HONORABLE COURT OF APPEALS,
Respondents.
Salonga, Ordoñez, Sicat, Yap and Associates for petitioner.

Sumulong Law Office for respondents.

MAKASIAR, J.:

Petitioner Pio L. Tolentino seeks a reversal of the decision of the respondent Court of Appeals promulgated August 24,
1970. The respondent Court of Appeals summarized the evidence of petitioner and private respondents, thus:

Petitioner's pertinent evidence: He began his service in the police force of Antipolo way back in 1934. On September 1,
1939, he was appointed sergeant of police (Exhibit F) and on March 30, 1958, as Chief of Police (Exhibit G). The latter
appointment was "AUTHORIZED as temporary pending receipt of the required medical certificate up to June 1st, 1959,
and APPROVED as permanent, subject to the usual physical and medical examination effective June 19, 1959" by the
Commissioner of Civil Service. Petitioner was issued an insurance policy (Exhibit I) by the Government Service Insurance
System on October 1, 1958. On April 18, 1960, he was extended another appointment with an increase in salary effective
July 1, 1959 (Exhibit H-2). The civil service commission gave on November 23, 1963, an examination for municipal chief of
police (qualifying). He took and passed the examination and his rating was released on January 31, 1964 (Exhibit E). In a
fourth Indorsement (Exhibit D) by the Commissioner of Civil Service to respondent Mayor dated April 13, 1964, which
"refers to the appointment of Mr. Pio L. Tolentino as chief of police of that municipality at P2,280.00 per annum effective
July 1, 1959" and his dismissal from the service on January 22, 1964, the Commissioner stated among other things that
"considering Mr. Tolentino's passing the examination, his occupancy of the position before the release of the results of
the examination, and his residence at Antipolo, Rizal, he is entitled to preference either for retention or appointment to
the position involved." The indorsement concluded that "the dismissal order of that office should be recalled and Mr.
Tolentino should be reinstated in the service. This office has approved the appointment of Mr. Tolentino under Section
24(c) of Republic Act 2260, in view of the pendency of the centempt case against him." The advice to reinstate petitioner
was not heeded by respondent Mayor who had appointed another member of the police force, one Jose S. Oliveros, to
the position in question.chanroblesvirtualawlibrarychanrobles virtual law library

Respondent Mayor presented the following evidence: (1) A second indorsement to him by the Commissioner of Civil
Service (Exhibit 9), dated February 9, 1965, anent the claim of Jose Oliveros for the payment of his salaries for the period
from January 23 to December 15, 1964 wherein the commissioner, after reviewing the circumstances attendant to the
dismissal of petitioner and the appointment of Oliveros, including the fourth indorsement dated April 13, 1964 (Exhibit
D), stated: "Under the circumstances and on the basis of a valid and subsisting appointment which has been approved by
all authorities concerned, it, would appear that Mr. Oliveros is entitled to salaries claimed for the period from January 23
to December 15, 1964, for services actually rendered. Moreover, it appears that the termination of Mr. Tolentino's services
as chief of police on January 22, 1964 is legal, considering that his last appointment as such is temporary which is good
only until another appointment is made to take its place." (2) A letter of the Commissioner to petitioner dated February
28, 1966 (Exhibit 12) informing the latter that his "examination papers in the chief of police examination, as well as (his)
eligibility resulting therefrom" were cancelled, it appearing that he had failed to explain why his application for the
examination should not be disapprove in view of his failure to mention in his answer to question No. 6 of the application
a criminal case filed against him although it was dismissed, the same being called for by the question,, and which, had it
been stated could have been ground for his disqualification to take the examination pursuant to Section 17 of Executive
Order 175 S. 1938. It is also claimed that Oliveros has already acquired chief of police eligibility under Section 9 of Republic
Act No. 4864 and Memorandum Circular No 1, S. 1967 of the Civil Service Commission (see p. 492,
Expediente).chanroblesvirtualawlibrarychanrobles virtual law library

xxx xxx xxx

Petitioner makes no pretense to any civil service eligibility except that of chief of police which he acquired by passing the
examination given therefor on November 23, 1963. Although his first appointment on March 30, 1958 (Exhibit G) was
approved as a permanent appointment, as he claims still in legal contemplation he was not actually a permanent
appointee under the Civil Service Law since a permanent appointment implies civil service eligibility (Ferrer, et al. vs.
Hechanova, et al., L-24418, January 25, 1967, 19 SCRA 105). Let us take a closer look at petitioner's appointments. His
first, Exhibit C, carried the notation "AUTHORIZED as temporary ... up to June 18, 1959, and APPROVED as permanent ...
effective June 19, 1959." His second dated April 1, 1958 (Exhibit H) with an increase in salary effective July 1, 1958, was
"APPROVED subject to the usual physical and medical examination" by the Commissioner of Civil Service. His third dated
April 18, 1960 (Exhibit H-2) with another increase in salary effective July 1, 1959, was merely attested by the provincial
treasurer. In petitioner's Exhibit D, an indorsement of the Commissioner, dated April 13, 1964, involving petitioner's third
appointment, it was therein stated that said appointment was approved under Section 24 (c) of Republic Act 2260 which
refers to provisional appointments. And finally in another indorsement of the Commissioner dated February 9, 1965
(Exhibit 9), it was also stated that petitioner's last appointment was temporary. His acceptance of said appointment as
temporary, the one subsisting when he was dismissed on January 22, 1964, removed him from the constitutional
protection to security of tenure (Limchaypo vs. Court of Appeals, L-19528, December 29, 1964). Holding office under a
temporary appointment, petitioner's employment can be terminated at will and without need to show that the
termination is for cause (Taboada vs. Municipality of Badian, et al.,

L-14604, May 31, 1961; Cunado, et al. vs. Gamus et al., L-16782-83, May 30, 1963; Aguila vs. Castro, L-23778, December
24, 1965).

It is patent from the foregoing recital that petitioner does not have any civil service eligibility except that of chief of police,
the examination given therefor on November 23, 1963 which he passed according to the results released on January 31,
1964; that the respondent Mayor in his letter to petitioner dated January 22, 1964 stated that his appointment as chief of
police was terminated effective immediately but not later than the close of office hours on January 22, 1964 "for lack of
the requisite civil service eligibility" (Exhibit A); that petitioner's passing the police chief examination was known only on
January 31, 1964, about nine days after his provisional appointment was terminated; that in an indorsement dated April
13, 1964, the Commissioner of Civil Service stated that petitioner, having passed the chief of police examination, "is
entitled to preference either for retention or appointment ..., the dismissal order should be recalled and Mr. Tolentino
should be reinstated ...," approved the appointment of petitioner as chief of police effective July 1, 1959 "under Sec. 24(c)
of Rep. Act 2260, in view of the pendency of the contempt case against him" (Exh. D or 8), which Section 24(c) refers to
provisional appointments; that in another indorsement of the commissioner of civil service dated February 9, 1965, said
commissioner stated "that the termination of Mr. Tolentino's services as chief of police on January 24, 1964 (should be
January 22, 1964) is legal, considering that his last appointment as such is temporary which is good only until another
appointment is made to take its place" (Exh. 9); that he accepted the said temporary appointment, which was the one
subsisting when he was dismissed on January 22, 1964 by the respondent mayor; and that in a subsequent letter to
petitioner dated February 28, 1966, the civil service commissioner cancelled the chief of police civil service eligibility of
petitioner because petitioner failed to state in his application for chief of police examination dated October 28, 1963 that
he was accused of prolonging the performance of duties and powers under Article 237 of the Revised Penal Code, in Crim.
Case No. 11285 of the Court of First Instance of Rizal although the same was subsequently dismissed (Exhs. 11 &
12).chanroblesvirtualawlibrarychanrobles virtual law library
As correctly ruled by the Court of Appeals, acceptance of a temporary appointment divests the temporary appointee of
the constitutional security of tenure against removal without cause even if he is a civil service eligible (Mendiola, et al. vs.
Tancinco, et al., L-26950, July 13, 1973, 52 SCRA 66, 71; Festejo vs. Barreras, et al., L-25074, Dec. 27, 1969, 30 SCRA 873,
879; Esquillo vs. Ovido L-30341, Aug. 22, 1969, 29 SCRA 30, 32; Barangan vs. Hernando, L-28652, Feb. 28, 1969, 27 SCRA
239; Santos vs. Chico, L-24155, Sept. 30, 1968, 23 SCRA 343, 346; Jimenea vs. Ganzon, Jan. 22, 1968, 22 SCRA 226,
229).chanroblesvirtualawlibrarychanrobles virtual law library

Because petitioner had no civil service eligibility until he passed the chief of police examination given on November 23,
1963, he could not be legally extended a permanent appointment to any position in the civil service prior to January 31,
1964 when the list of successful examinees was officially released. His having passed the said chief of police examination,
did not ipso facto convert his temporary appointment into a permanent one (Jimenez vs. Francisco, et al., 100 Phil.
1025).chanroblesvirtualawlibrarychanrobles virtual law library

The findings of facts of the respondent Court of Appeals are conclusive on the parties and on this Court (Tamayo vs. Callejo,
L-25563, July 28, 1972, 46 SCRA 27; Nery, et al. vs. Lorenzo, et al., L-23096 & L-23376, April 27, 1972, 44 SCRA 431; Viacrucis
vs. CA, L-29831, March 29, 1972, 44 SCRA 176; Dela Cruz, et al. vs. CA, L-24000, Nov. 29, 1971, 42 SCRA 68; Naga Dev.
Corp. vs. CA, L-28175, Sept. 30, 1971, 41 SCRA 105, 115; Lacson & Basilio vs. Pineda, et al., L-28523, July 16, 1971, 40 SCRA
35; Quiñano, et al. vs. CA, et al., L-23024, May 31, 1971, 39 SCRA 227; Reyes, et al. vs. CA, et al., L-28466, March 27, 1971,
38 SCRA 138, 142; Gotamco Hermanas vs. Shotwell, et al., L-22519, March 27, 1971, 38 SCRA 112-117; Limjoco vs. CA, L-
20656, Feb. 27, 1971, 37 SCRA 663-669; De Garcia, et al. vs. CA, L-20264, Jan. 30, 1971, 37 SCRA 130, 136-137; Simeon vs.
Peña, L-29049, Dec. 29, 1970, 36 SCRA 611), unless (1) the conclusion is a finding grounded entirely on speculation, surmise
and conjectures; (2) the inference made is manifestly mistaken; (3) there is grave abuse of discretion; (4) the judgment is
based on misapprehension of facts; (5) the Court of Appeals went beyond the issues of the case and its findings are
contrary to the admission of both appellant and appellees [Roque vs. Buan, L-22459, Oct. 31, 1967, 21 SCRA 648]; (6) the
findings of facts of the Court of Appeals are contrary to those of the trial court; (7) said findings of facts are conclusions
without citation of specific evidence on which they are based; (8) the facts set forth in the petition as well as in the
petitioner's main and reply briefs are not disputed by the respondents [Garcia vs. CA, L-26490, June 30, 1970, 33 SCRA
622]; and (9) when the finding of fact of the Court of Appeals is premised on the absence of evidence and is contradicted
by evidence on record [Salazar vs. Gutierrez, L-21727, May 29, 1970, 33 SCRA 243].chanroblesvirtualawlibrarychanrobles
virtual law library

Nowhere in his petition nor in his brief does petitioner dispute the express finding of the respondent Court of Appeals
that the Commissioner of Civil Service in his indorsement dated February 9, 1965 stated that petitioner's last appointment
was temporary, that petitioner accepted the same and that such temporary appointment was the one subsisting at the
time of his dismissal on January 22, 1964. Nor does petitioner negate the finding of fact of the respondent Court of Appeals
that the letter of the Commissioner of Civil Service to petitioner dated February 28, 1966 (Exh. 12) informed the latter
that" "his examination papers in the chief of police examination, as well as (his) eligibility resulting therefrom" were
cancelled because he had failed to explain why his application for the examination should not be disapproved in view of
his failure to mention in his answer to question No. 6 of the application about a criminal case filed against him although it
was dismissed, the same being called for by the question, and which, had it been stated, could have been ground for his
disqualification to take the examination pursuant to Sec. 17 of Executive Order No. 175 S 1938." His failure to give the
required explanation affects his moral integrity which disqualifies him from continuing in the position and constitutes
unsatisfactory conduct to justify his being dropped from the service.chanroblesvirtualawlibrarychanrobles virtual law
library
There is no showing that the petitioner secured a reconsideration of the 1966 cancellation of his civil service eligibility nor
a reversal of the same by the Office of the President. Consequently, the cancellation stands and petitioner is devoid of any
chief of police civil service eligibility to qualify him for appointment to and to entitle him to remain in the position of chief
of police.chanroblesvirtualawlibrarychanrobles virtual law library

Furthermore, in an order dated May 27, 1960 of then Judge Cecilia Muñoz Palma of the Court of First Instance of Rizal in
Civil Case No. 6125 entitled "Rev. Fr. Pedro A. Hilario, etc., plaintiff, vs. Municipality of Antipolo, defendant," petitioner
Pio L. Tolentino was adjudged guilty of contempt for violation of the preliminary injunction issued in said case and
sentenced to thirty (30) days imprisonment (Exh. 4-A), which conviction was affirmed on April 23, 1968 by the Court of
Appeals in a decision penned by Mr. Justice Jesus Perez with the penalty modified to only a fine of P200.00 with subsidiary
imprisonment in case of insolvency (see Maximo Gatlabayan et al. vs. People of the Philippines, CA No. 10250-
CR).chanroblesvirtualawlibrarychanrobles virtual law library

Such conviction hardly qualifies petitioner for the position of chief of police. Precisely, the Commissioner of Civil Service,
in his indorsement dated April 31, 1964, approved his appointment as provisional merely because of the pendency then
of the contempt case against him. The inevitable conclusion is that if he were then already convicted by final judgment,
the Commissioner would have disapproved his appointment.chanroblesvirtualawlibrarychanrobles virtual law library

WHEREFORE, THE PETITION IS HEREBY DISMISSED AND THE APPEALED DECISION OF THE COURT OF APPEALS DATED
AUGUST 24, 1970 IS HEREBY AFFIRMED, WITH COSTS AGAINST PETITIONER.

Makalintal, C.J., Castro, Teehankee and Esguerra, JJ., concur.chanroblesvirtualawlibrarychanrobles virtual law library

Muñoz Palma J., took no part.

G.R. No. 45629 September 22, 1938

ANTILANO G. MERCADO, petitioner,

vs.

ALFONSO SANTOS, Judge of First Instance of Pampanga, respondents.

ROSARIO BASA DE LEON, ET AL., intervenors.

Claro M. Recto and Benigno S. Aquino for petitioner.

Esperanza de la Cruz and Heracio Abistao for respondents.

Sotto and Sotto for intervenors.

LAUREL, J.:

On May 28, 1931, the petitioner herein filed in the Court of First Instance of Pampanga a petition for the probate of the
will of his deceased wife, Ines Basa. Without any opposition, and upon the testimony of Benigno F. Gabino, one of the
attesting witnesses, the probate court, on June 27,1931, admitted the will to probate. Almost three years later, on April
11, 1934, the five intervenors herein moved ex parte to reopen the proceedings, alleging lack of jurisdiction of the court
to probate the will and to close the proceedings. Because filed ex parte, the motion was denied. The same motion was
filed a second time, but with notice to the adverse party. The motion was nevertheless denied by the probate court on
May 24, 1934. On appeal to this court, the order of denial was affirmed on July 26, 1935. (Basa vs. Mercado, 33 Off. Gaz.,
2521.)

It appears that on October 27, 1932, i. e., sixteen months after the probate of the will of Ines Basa, intervenor Rosario
Basa de Leon filed with the justice of the peace court of San Fernando, Pampanga, a complaint against the petitioner
herein, for falsification or forgery of the will probated as above indicated. The petitioner was arrested. He put up a bond
in the sum of P4,000 and engaged the services of an attorney to undertake his defense. Preliminary investigation of the
case was continued twice upon petition of the complainant. The complaint was finally dismissed, at the instance of the
complainant herself, in an order dated December 8, 1932. Three months later, or on March 2, 1933, the same intervenor
charged the petitioner for the second time with the same offense, presenting the complaint this time in the justice of the
peace court of Mexico, Pampanga. The petitioner was again arrested, again put up a bond in the sum of P4,000, and
engaged the services of counsel to defend him. This second complaint, after investigation, was also dismissed, again at
the instance of the complainant herself who alleged that the petitioner was in poor health. That was on April 27, 1933.
Some nine months later, on February 2, 1934, to be exact, the same intervenor accused the same petitioner for the third
time of the same offense. The information was filed by the provincial fiscal of Pampanga in the justice of the peace court
of Mexico. The petitioner was again arrested, again put up a bond of P4,000, and engaged the services of defense counsel.
The case was dismissed on April 24, 1934, after due investigation, on the ground that the will alleged to have been falsified
had already been probated and there was no evidence that the petitioner had forged the signature of the testatrix
appearing thereon, but that, on the contrary, the evidence satisfactorily established the authenticity of the signature
aforesaid. Dissatisfied with the result, the provincial fiscal, on May 9, 1934, moved in the Court of First Instance of
Pampanga for reinvestigation of the case. The motion was granted on May 23, 1934, and, for the fourth time, the
petitioner was arrested, filed a bond and engaged the services of counsel to handle his defense. The reinvestigation
dragged on for almost a year until February 18, 1934, when the Court of First Instance ordered that the case be tried on
the merits. The petitioner interposed a demurrer on November 25, 1935, on the ground that the will alleged to have been
forged had already been probated. This demurrer was overruled on December 24, 1935, whereupon an exception was
taken and a motion for reconsideration and notice of appeal were filed. The motion for reconsideration and the proposed
appeal were denied on January 14, 1936. The case proceeded to trial, and forthwith petitioner moved to dismiss the case
claiming again that the will alleged to have been forged had already been probated and, further, that the order probating
the will is conclusive as to the authenticity and due execution thereof. The motion was overruled and the petitioner filed
with the Court of Appeals a petition for certiorari with preliminary injunction to enjoin the trial court from further
proceedings in the matter. The injunction was issued and thereafter, on June 19, 1937, the Court of Appeals denied the
petition for certiorari, and dissolved the writ of preliminary injunction. Three justices dissented in a separate opinion. The
case is now before this court for review on certiorari.

Petitioner contends (1) that the probate of the will of his deceased wife is a bar to his criminal prosecution for the alleged
forgery of the said will; and, (2) that he has been denied the constitutional right to a speedy trial.
1. Section 306 of our Code of Civil Procedure provides as to the effect of judgments.

SEC. 306. Effect of judgment. — The effect of a judgment or final order in an action or special proceeding before a
court or judge of the Philippine Islands or of the United States, or of any State or Territory of the United States, having
jurisdiction to pronounce the judgment or order, may be as follows.

1. In case of a judgment or order against a specific thing, or in respect to the probate of a will, or the administration
of the estate of a deceased person, or in respect to the personal, political, or legal condition or relation of a particular
person, the judgment or order is conclusive upon the title of the thing, the will or administration, or the condition or
relation of the person Provided, That the probate of a will or granting of letters of administration shall only be prima facie
evidence of the death of the testator or intestate.

xxx xxx xxx

(Emphasis ours.)

Section 625 of the same Code is more explicit as to the conclusiveness of the due execution of a probate will. It says.

SEC. 625. Allowance Necessary, and Conclusive as to Execution. — No will shall pass either the real or personal
estate, unless it is proved and allowed in the Court of First Instance, or by appeal to the Supreme Court; and the allowance
by the court of a will of real and personal estate shall be conclusive as to its due execution. (Emphasis ours.)

(In Manahan vs. Manahan 58 Phil., 448, 451), we held:

. . . The decree of probate is conclusive with respect to the due execution thereof and it cannot be impugned on any of
the grounds authorized by law, except that of fraud, in any separate or independent action or proceeding. Sec. 625, Code
of Civil Procedure; Castañeda vs. Alemany, 3 Phil., 426; Pimentel vs. Palanca, 5 Phil., 436; Sahagun vs. De Gorostiza, 7 Phil.,
347; Limjuco vs. Ganara, 11 Phil., 393; Montañano vs. Suesa, 14 Phil., 676; in re Estate of Johnson, 39 Phil, 156; Riera vs.
Palmaroli, 40 Phil., 105; Austria vs. Ventenilla, 21 Phil., 180; Ramirez vs. Gmur, 42 Phil., 855; and Chiong Jocsoy vs. Vano,
8 Phil., 119.

In 28 R. C. L., p. 377, section 378, it is said.

The probate of a will by the probate court having jurisdiction thereof is usually considered as conclusive as to its due
execution and validity, and is also conclusive that the testator was of sound and disposing mind at the time when he
executed the will, and was not acting under duress, menace, fraud, or undue influence, and that the will is genuine and
not a forgery. (Emphasis ours.)
As our law on wills, particularly section 625 of our Code of Civil Procedure aforequoted, was taken almost bodily from the
Statutes of Vermont, the decisions of the Supreme Court of the State relative to the effect of the probate of a will are of
persuasive authority in this jurisdiction. The Vermont statute as to the conclusiveness of the due execution of a probated
will reads as follows.

SEC. 2356. No will shall pass either real or personal estate, unless it is proved and allowed in the probate court, or by
appeal in the county or supreme court; and the probate of a will of real or personal estate shall be conclusive as to its due
execution. (Vermont Statutes, p. 451.)

Said the Supreme Court of Vermont in the case of Missionary Society vs. Eells (68 Vt., 497, 504): "The probate of a will by
the probate court having jurisdiction thereof, upon the due notice, is conclusive as to its due execution against the whole
world. (Vt. St., sec. 2336; Fosters Exrs. vs. Dickerson, 64 Vt., 233.)"

The probate of a will in this jurisdiction is a proceeding in rem. The provision of notice by Publication as a prerequisite to
the allowance of a will is constructive notice to the whole world, and when probate is granted, the judgment of the court
is binding upon everybody, even against the State. This court held in the case of Manalo vs. Paredes and Philippine Food
Co. (47 Phil., 938):

The proceeding for the probate of a will is one in rem (40 Cyc., 1265), and the court acquires jurisdiction over all the
persons interested, through the publication of the notice prescribed by section 630 of the Code of Civil Procedure, and
any order that may be entered therein is binding against all of them.

Through the publication of the petition for the probate of the will, the court acquires jurisdiction over all such persons as
are interested in said will; and any judgment that may be rendered after said proceeding is binding against the whole
world.

In Everrett vs. Wing (103 Vt., 488, 492), the Supreme Court of Vermont held.

In this State the probate of a will is a proceeding in rem being in form and substance upon the will itself to determine its
validity. The judgment determines the status of the instrument, whether it is or is not the will of the testator. When the
proper steps required by law have been taken the judgment is binding upon everybody, and makes the instrument as to
all the world just what the judgment declares it to be. (Woodruff vs. Taylor, 20 Vt., 65, 73; Burbeck vs. Little, 50 Vt., 713,
715; Missionary Society vs. Eells, 68 Vt., 497, 504; 35 Atl., 463.) The proceedings before the probate court are statutory
and are not governed by common law rules as to parties or causes of action. (Holdrige vs. Holdriges Estate, 53 Vt., 546,
550; Purdy vs. Estate of Purdy, 67 Vt. 50, 55; 30 Atl., 695.) No process is issued against anyone in such proceedings, but all
persons interested in determining the state or conditions of the instrument are constructively notified by the publication
of notice as required by G. L. 3219. (Woodruff vs. Taylor, supra; In re Warners Estate 98 Vt., 254; 271; 127 Atl., 362.)

Section 333, paragraph 4, of the Code of Civil Procedure establishes an incontrovertible presumption in favor of judgments
declared by it to be conclusive.
SEC. 333. Conclusive Presumptions. — The following presumptions or deductions, which the law expressly directs
to be made from particular facts, are deemed conclusive.

xxx xxx xxx

4. The judgment or order of a court, when declared by this code to be conclusive.

Conclusive presumptions are inferences which the law makes so peremptory that it will not allow them to be overturned
by any contrary proof however strong. (Brant vs. Morning Journal Assn., 80 N.Y.S., 1002, 1004; 81 App. Div., 183; see, also,
Joslyn vs. Puloer, 59 Hun., 129, 140, 13 N.Y.S., 311.) The will in question having been probated by a competent court, the
law will not admit any proof to overthrow the legal presumption that it is genuine and not a forgery.

The majority decision of the Court of Appeals cites English decisions to bolster up its conclusion that "the judgment
admitting the will to probate is binding upon the whole world as to the due execution and genuineness of the will insofar
as civil rights and liabilities are concerned, but not for the purpose of punishment of a crime." The cases of Dominus Rex
vs. Vincent, 93 English Reports, Full Reprint, 795, the first case being decided in 1721, were cited to illustrate the earlier
English decisions to the effect that upon indictment for forging a will, the probating of the same is conclusive evidence in
the defendants favor of its genuine character. Reference is made, however, to the cases of Rex vs. Gibson, 168 English
Reports, Full Reprint, 836, footnote (a), decided in 1802, and Rex vs. Buttery and Macnamarra, 168 English Reports, Full
Reprint, 836, decided in 1818, which establish a contrary rule. Citing these later cases, we find the following quotation
from Black on Judgments, Vol. II, page 764.

A judgment admitting a will to probate cannot be attacked collaterally although the will was forged; and a payment to the
executor named therein of a debt due the decedent will discharge the same, notwithstanding the spurious character of
the instrument probated. It has also been held that, upon an indictment for forging a will, the probate of the paper in
question is conclusive evidence in the defendants favor of its genuine character. But this particular point has lately been
ruled otherwise.

It was the case of Rex vs. Buttery, supra, which induced the Supreme Court of Massachussetts in the case of Waters vs.
Stickney (12 Allen 1; 90 Am. Dec., 122) also cited by the majority opinion, to hold that "according to later and sounder
decisions, the probate, though conclusive until set aside of the disposition of the property, does not protect the forger
from punishment." This was reproduced in 28 R.C.L., p. 376, and quoted in Barry vs. Walker (103 Fla., 533; 137 So., 711,
715), and Thompson vs. Freeman (149 So., 740, 742), also cited in support of the majority opinion of the Court of Appeals.
The dissenting opinion of the Court of Appeals in the instant case under review makes a cursory study of the statutes
obtaining in England, Massachussetts and Florida, and comes to the conclusion that the decisions cited in the majority
opinion do not appear to "have been promulgated in the face of statutes similar to ours." The dissenting opinion cites
Whartons Criminal Evidence (11th ed., sec. 831), to show that the probate of a will in England is only prima facie proof of
the validity of the will (Op. Cit. quoting Marriot vs. Marriot, 93 English Reprint, 770); and 21 L.R.A. (pp. 686689 and note),
to show that in Massachussetts there is no statute making the probate of a will conclusive, and that in Florida the
statute(sec. 1810, Revised Statutes) makes the probate conclusive evidence as to the validity of the will with regard to
personal, and prima facie as to real estate. The cases decided by the Supreme Court of Florida cited by the majority
opinion, supra, refer to wills of both personal and real estate.

The petitioner cites the case of State vs. McGlynn (20 Cal., 233, decided in 1862), in which Justice Norton of the Supreme
Court of California, makes the following review of the nature of probate proceedings in England with respect to wills
personal and real property.

In England, the probate of wills of personal estate belongs to the Ecclesiastical Courts. No probate of a will relating to real
estate is there necessary. The real estate, upon the death of the party seized, passes immediately to the devisee under
the will if there be one; or if there be no will, to the heir at law. The person who thus becomes entitled takes possession.
If one person claims to be the owner under a will, and another denies the validity of the will and claims to be the owner
as heir at law, an action of ejectment is brought against the party who may be in possession by the adverse claimant; and
on the trial of such an action, the validity of the will is contested, and evidence may be given by the respective parties as
to the capacity of the testator to make a will, or as to any fraud practiced upon him, or as to the actual execution of it, or
as to any other circumstance affecting its character as a valid devise of the real estate in dispute. The decision upon the
validity of the will in such action becomes res adjudicata, and is binding and conclusive upon the parties to that action and
upon any person who may subsequently acquire the title from either of those parties; but the decision has no effect upon
other parties, and does not settle what may be called the status or character of the will, leaving it subject to be enforced
as a valid will, or defeated as invalid, whenever other parties may have a contest depending upon it. A probate of a will of
personal property, on the contrary, is a judicial determination of the character of the will itself. It does not necessarily or
ordinarily arise from any controversy between adverse claimants, but is necessary in order to authorize a disposition of
the personal estate in pursuance of its provisions. In case of any controversy between adverse claimants of the personal
estate, the probate is given in evidence and is binding upon the parties, who are not at liberty to introduce any other
evidence as to the validity of the will.

The intervenors, on the other hand, attempt to show that the English law on wills is different from that stated in the case
of State vs. McGlynn, supra, citing the following statutes.

1. The Wills Act, 1837 (7 Will. 4 E 1 Vict. c. 26).

2. The Court of Probate Act, 1857 (20 and 21 Vict. c. 77).

3. The Judicature Act, 1873 (36 and 37 Vict. c. 66).

The Wills Act of 1837 provides that probate may be granted of "every instrumental purporting to be testamentary and
executed in accordance with the statutory requirements . . . if it disposes of property, whether personal or real." The
Ecclesiastical Courts which took charge of testamentary causes (Ewells Blackstone [1910], p. 460), were determined by
the Court of Probate Act of 1857, and the Court of Probate in turn was, together with other courts, incorporated into the
Supreme Court of Judicature, and transformed into the Probate Division thereof, by the Judicature Act of 1873. (Lord
Halsbury, The Laws of England[1910], pp. 151156.) The intervenors overlook the fact, however, that the case of Rex vs.
Buttery and Macnamarra, supra, upon which they rely in support of their theory that the probate of a forged will does not
protect the forger from punishment, was decided long before the foregoing amendatory statutes to the English law on
wills were enacted. The case of State vs. McGlynn may be considered, therefore, as more or less authoritative on the law
of England at the time of the promulgation of the decision in the case of Rex vs. Buttery and Macnamarra.

In the case of State vs. McGlynn, the Attorney General of California filed an information to set aside the probate of the
will of one Broderick, after the lapse of one year provided by the law of California for the review of an order probating a
will, in order that the estate may be escheated to the State of California for the review of an probated will was forged and
that Broderick therefore died intestate, leaving no heirs, representatives or devisees capable of inheriting his estate. Upon
these facts, the Supreme Court of California held.

The fact that a will purporting to be genuine will of Broderick, devising his estate to a devisee capable of inheriting and
holding it, has been admitted to probate and established as a genuine will by the decree of a Probate Court having
jurisdiction of the case, renders it necessary to decide whether that decree, and the will established by it, or either of
them, can be set aside and vacated by the judgment of any other court. If it shall be found that the decree of the Probate
Court, not reversed by the appellate court, is final and conclusive, and not liable to be vacated or questioned by any other
court, either incidentally or by any direct proceeding, for the purpose of impeaching it, and that so long as the probate
stands the will must be recognized and admitted in all courts to be valid, then it will be immaterial and useless to inquire
whether the will in question was in fact genuine or forged. (State vs. McGlynn, 20 Cal., 233; 81 Am. Dec., 118, 121.).

Although in the foregoing case the information filed by the State was to set aside the decree of probate on the ground
that the will was forged, we see no difference in principle between that case and the case at bar. A subtle distinction could
perhaps be drawn between setting aside a decree of probate, and declaring a probated will to be a forgery. It is clear,
however, that a duly probated will cannot be declared to be a forgery without disturbing in a way the decree allowing said
will to probate. It is at least anomalous that a will should be regarded as genuine for one purpose and spurious for another.

The American and English cases show a conflict of authorities on the question as to whether or not the probate of a will
bars criminal prosecution of the alleged forger of the probate will. We have examined some important cases and have
come to the conclusion that no fixed standard maybe adopted or drawn therefrom, in view of the conflict no less than of
diversity of statutory provisions obtaining in different jurisdictions. It behooves us, therefore, as the court of last resort,
to choose that rule most consistent with our statutory law, having in view the needed stability of property rights and the
public interest in general. To be sure, we have seriously reflected upon the dangers of evasion from punishment of culprits
deserving of the severity of the law in cases where, as here, forgery is discovered after the probate of the will and the
prosecution is had before the prescription of the offense. By and large, however, the balance seems inclined in favor of
the view that we have taken. Not only does the law surround the execution of the will with the necessary formalities and
require probate to be made after an elaborate judicial proceeding, but section 113, not to speak of section 513, of our
Code of Civil Procedure provides for an adequate remedy to any party who might have been adversely affected by the
probate of a forged will, much in the same way as other parties against whom a judgment is rendered under the same or
similar circumstances. (Pecson vs. Coronel, 43 Phil., 358.)The aggrieved party may file an application for relief with the
proper court within a reasonable time, but in no case exceeding six months after said court has rendered the judgment of
probate, on the ground of mistake, inadvertence, surprise or excusable neglect. An appeal lies to review the action of a
court of first instance when that court refuses to grant relief. (Banco Español Filipino vs. Palanca, 37 Phil., 921; Philippine
Manufacturing Co. vs. Imperial, 47 Phil., 810; Samia vs. Medina, 56 Phil., 613.) After a judgment allowing a will to be
probated has become final and unappealable, and after the period fixed by section 113 of the Code of Civil Procedure has
expired, the law as an expression of the legislative wisdom goes no further and the case ends there.
. . . The court of chancery has no capacity, as the authorities have settled, to judge or decide whether a will is or is not a
forgery; and hence there would be an incongruity in its assuming to set aside a probate decree establishing a will, on the
ground that the decree was procured by fraud, when it can only arrive at the fact of such fraud by first deciding that the
will was a forgery. There seems, therefore, to be a substantial reason, so long as a court of chancery is not allowed to
judge of the validity of a will, except as shown by the probate, for the exception of probate decrees from the jurisdiction
which courts of chancery exercise in setting aside other judgments obtained by fraud. But whether the exception be
founded in good reason or otherwise, it has become too firmly established to be disregarded. At the present day, it would
not be a greater assumption to deny the general rule that courts of chancery may set aside judgments procured by fraud,
than to deny the exception to that rule in the case of probate decrees. We must acquiesce in the principle established by
the authorities, if we are unable to approve of the reason. Judge Story was a staunch advocate for the most enlarged
jurisdiction of courts of chancery, and was compelled to yield to the weight of authority. He says "No other excepted case
is known to exist; and it is not easy to discover the grounds upon which this exception stands, in point of reason or
principle, although it is clearly settled by authority. (1 Storys Eq. Jur. sec. 440.)" (State vs. McGlynn, 20 Cal., 233; 81 Am.
Dec., 118, 129. See, also, Tracy vs. Muir, 121 American State Reports, 118, 125.)

We hold, therefore, that in view of the provisions of sections 306, 333 and 625 of our Code of Civil Procedure, criminal
action will not lie in this jurisdiction against the forger of a will which had been duly admitted to probate by a court of
competent jurisdiction.

The resolution of the foregoing legal question is sufficient to dispose of the case. However, the other legal question with
reference to the denial to the accused of his right to a speedy trial having been squarely raised and submitted, we shall
proceed to consider the same in the light of cases already adjudicated by this court.

2. The Constitution of the Philippines provides that "In all criminal prosecutions the accused . . . shall enjoy the right
. . . to have a speedy . . . trial. . . . (Art. III, sec. 1, par. 17. See, also, G.O. No. 58, sec. 15, No. 7.) Similar provisions are to be
found in the Presidents Instructions to the Second Philippine Commission (par. 11), the Philippine Bill of July 1, 1902 (sec.
5, par. 2) and the Jones Act of August 29, 1916 (sec. 3, par. 2). The provisions in the foregoing organic acts appear to have
been taken from similar provisions in the Constitution of the United States (6th Amendment) and those of the various
states of the American Union. A similar injunction is contained in the Malolos Constitution (art. 8, Title IV), not to speak of
other constitutions. More than once this court had occasion to set aside the proceedings in criminal cases to give effect
to the constitutional injunction of speedy trial. (Conde vs. Judge of First Instance and Fiscal of Tayabas [1923], 45 Phil.,
173; Conde vs. Rivera and Unson[1924], 45 Phil., 650; People vs. Castañeda and Fernandez[1936]), 35 Off. Gaz., 1269;
Kalaw vs. Apostol, Oct. 15, 1937, G.R. No. 45591; Esguerra vs. De la Costa, Aug. 30,1938, G.R. No. 46039.).

In Conde vs. Rivera and Unson, supra, decided before the adoption of our Constitution, we said.

Philippine organic and statutory law expressly guarantee that in all criminal prosecutions the accused shall enjoy the right
to have a speedy trial. Aurelia Conde, like all other accused persons, has a right to a speedy trial in order that if innocent
she may go free, and she has been deprived of that right in defiance of law. Dismissed from her humble position, and
compelled to dance attendance on courts while investigations and trials are arbitrarily postponed without her consent, is
palpably and openly unjust to her and a detriment to the public. By the use of reasonable diligence, the prosecution could
have settled upon the appropriate information, could have attended to the formal preliminary examination, and could
have prepared the case for a trial free from vexatious, capricious, and oppressive delays.
In People vs. Castañeda and Fernandez, supra, this court found that the accused had not been given a fair and impartial
trial. The case was to have been remanded to the court a quo for a new trial before an impartial judge. This step, however,
was found unnecessary. A review of the evidence convinced this court that a judgment of conviction for theft, as charged,
could not be sustained and, having in view the right to a speedy trial guaranteed by the Constitution to every person
accused of crime, entered a judgment acquitting the accused, with costs de oficio. We said.

. . . The Constitution, Article III, section 1, paragraph 17, guarantees to every accused person the right to a speedy trial.
This criminal proceeding has been dragging on for almost five years now. The accused have twice appealed to this court
for redress from the wrong that they have suffered at the hands of the trial court. At least one of them, namely Pedro
Fernandez alias Piro, had been con-fined in prison from July 20, 1932 to November 27, 1934, for inability to post the
required bond of P3,000 which was finally reduced to P300. The Government should be the last to set an example of delay
and oppression in the administration of justice and it is the moral and legal obligation of this court to see that the criminal
proceedings against the accused come to an end and that they be immediately dis-charged from the custody of the law.
(Conde vs. Rivera and Unson, 45 Phil., 651.)

In Kalaw vs. Apostol, supra, the petitioner invoked and this court applied and gave effect to the doctrines stated in the
second Conde case, supra. In granting the writs prayed for, this court, after referring to the constitutional and statutory
provisions guaranteeing to persons accused of crime the right to a speedy trial, said:

Se infiere de los preceptos legales transcritos que todo acusado en causa criminal tiene derecho a ser juzgado pronta y
publicamente. Juicio rapido significa un juicioque se celebra de acuerdo con la ley de procedimiento criminal y los
reglamentos, libre de dilaciones vejatorias, caprichosas y opersivas (Burnett vs. State, 76 Ark., 295; 88S. W., 956; 113
AMSR, 94; Stewart vs. State, 13 Ark., 720; Peo. vs. Shufelt, 61 Mich., 237; 28 N. W., 79; Nixon vs. State, 10 Miss., 497; 41
AMD., 601; State vs. Cole, 4 Okl. Cr., 25; 109 P., 736; State vs. Caruthers, 1 Okl. Cr., 428; 98 P., 474; State vs. Keefe, 17
Wyo., 227, 98 p., 122;22 IRANS, 896; 17 Ann. Cas., 161). Segun los hechos admitidos resulta que al recurrente se le
concedio vista parcial del asunto, en el Juzgado de Primera Instancia de Samar, solo despues de haber transcurrido ya mas
de un año y medio desde la presentacion de la primera querella y desde la recepcion de la causa en dicho Juzgado, y
despues de haberse transferido dos veces la vista delasunto sin su consentimiento. A esto debe añadirse que laprimera
transferencia de vista era claramente injustificadaporque el motivo que se alego consistio unicamente en laconveniencia
personal del ofendido y su abogado, no habiendose probado suficientemente la alegacion del primero de quese hallaba
enfermo. Es cierto que el recurrente habia pedido que, en vez de señalarse a vista el asunto para el mayo de 1936, lo fuera
para el noviembre del mismo año; pero,aparte de que la razon que alego era bastante fuerte porquesu abogado se oponia
a comparecer por compromisos urgentes contraidos con anterioridad y en tal circunstancia hubiera quedado indefenso si
hubiese sido obligado a entraren juicio, aparece que la vista se pospuso por el Juzgado amotu proprio, por haber cancelado
todo el calendario judicial preparado por el Escribano para el mes de junio. Declaramos, con visto de estos hechos, que al
recurrents se leprivo de su derecho fundamental de ser juzgado prontamente.

Esguerra vs. De la Costa, supra, was a petition for mandamus to compel the respondent judge of the Court of First Instance
of Rizal to dismiss the complaint filed in a criminal case against the petitioner, to cancel the bond put up by the said
petitioner and to declare the costs de oficio. In accepting the contention that the petitioner had been denied speedy trial,
this court said:
Consta que en menos de un año el recurrente fue procesado criminalmente por el alegado delito de abusos deshonestos,
en el Juzgado de Paz del Municipio de Cainta, Rizal. Como consecuencia de las denuncias que contra el se presentaron fue
arrestado tres veces y para gozar de libertad provisional, en espera de los juicios, se vio obligado a prestartres fianzas por
la suma de P1,000 cada una. Si no se da fin al proceso que ultimamente se ha incoado contra el recurrente la incertidumbre
continuara cerniendose sobre el y las consiguientes molestias y preocupaciones continuaran igualmente abrumandole. El
Titulo III, articulo 1, No. 17,de la Constitucion preceptua que en todo proceso criminalel acusado tiene derecho de ser
juzgado pronta y publicamente. El Articulo 15, No. 7, de la Orden General No. 58 dispone asimismo que en las causas
criminales el acusado tendra derecho a ser juzgado pronta y publicamente. Si el recurrente era realmente culpable del
delito que se le imputo, tenia de todos modos derechos a que fuera juzgado pronta y publicamente y sin dilaciones
arbitrarias y vejatorias. Hemos declarado reiteradamente que existe un remedio positivo para los casos en que se viola el
derecho constitucional del acusado de ser juzgado prontamente. El acusado que esprivado de su derecho fundomental de
ser enjuiciado rapidamente tiene derecho a pedir que se le ponga en libertad, si estuviese detenido, o a que la causa que
pende contra el sea sobreseida definitivamente. (Conde contra Rivera y Unson, 45 Jur. Fil., 682; In the matter of Ford
[1911], 160 Cal., 334; U. S. vs. Fox [1880], 3 Mont., 512; Kalaw contra Apostol, R. G. No. 45591, Oct. 15, 1937; Pueblo
contra Castañeda y Fernandez, 35 Gac. Of., 1357.)

We are again called upon to vindicate the fundamental right to a speedy trial. The facts of the present case may be at
variance with those of the cases hereinabove referred to. Nevertheless, we are of the opinion that, under the
circumstances, we should consider the substance of the right instead of indulging in more or less academic or undue
factual differentiations. The petitioner herein has been arrested four times, has put up a bond in the sum of P4,000 and
has engaged the services of counsel to undertake his defense an equal number of times. The first arrest was made upon
a complaint filed by one of the intervenors herein for alleged falsification of a will which, sixteen months before, had been
probated in court. This complaint, after investigation, was dismissed at the complainant's own request. The second arrest
was made upon a complaint charging the same offense and this complaint, too, was dismissed at the behest of the
complainant herself who alleged the quite startling ground that the petitioner was in poor health. The third arrest was
made following the filing of an information by the provincial fiscal of Pampanga, which information was dismissed, after
due investigation, because of insufficiency of the evidence. The fourth arrest was made when the provincial fiscal secured
a reinvestigation of the case against the petitioner on the pretext that he had additional evidence to present, although
such evidence does not appear to have ever been presented.

It is true that the provincial fiscal did not intervene in the case until February 2, 1934, when he presented an information
charging the petitioner, for the third time, of the offense of falsification. This, however, does not matter. The prosecution
of offenses is a matter of public interest and it is the duty of the government or those acting in its behalf to prosecute all
cases to their termination without oppressive, capricious and vexatious delay. The Constitution does not say that the right
to a speedy trial may be availed of only where the prosecution for crime is commenced and undertaken by the fiscal. It
does not exclude from its operation cases commenced by private individuals. Where once a person is prosecuted
criminally, he is entitled to a speedy trial, irrespective of the nature of the offense or the manner in which it is authorized
to be commenced. In any event, even the actuations of the fiscal himself in this case is not entirely free from criticism.
From October 27, 1932, when the first complaint was filed in the justice of the peace court of San Fernando, to February
2, 1934, when the provincial fiscal filed his information with the justice of the peace of Mexico, one year, three months
and six days transpired; and from April 27, 1933, when the second criminal complaint was dismissed by the justice of the
peace of Mexico, to February 2, 1934, nine months and six days elapsed. The investigation following the fourth arrest,
made after the fiscal had secured a reinvestigation of the case, appears also to have dragged on for about a year. There
obviously has been a delay, and considering the antecedent facts and circumstances within the knowledge of the fiscal,
the delay may not at all be regarded as permissible. In Kalaw vs. Apostol, supra, we observed that the prosecuting officer
all prosecutions for public offenses (secs. 1681 and 2465 of the Rev. Adm. Code), and that it is his duty to see that criminal
cases are heard without vexatious, capricious and oppressive delays so that the courts of justice may dispose of them on
the merits and determine whether the accused is guilty or not. This is as clear an admonition as could be made. An accused
person is entitled to a trial at the earliest opportunity. (Sutherland on the Constitution, p. 664; United States vs. Fox, 3
Mont., 512.) He cannot be oppressed by delaying he commencement of trial for an unreasonable length of time. If the
proceedings pending trial are deferred, the trial itself is necessarily delayed. It is not to be supposed, of course, that the
Constitution intends to remove from the prosecution every reasonable opportunity to prepare for trial. Impossibilities
cannot be expected or extraordinary efforts required on the part of the prosecutor or the court. As stated by the Supreme
Court of the United States, "The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon
circumstances. It secures rights to a defendant. It does not preclude the rights of public justice." (Beavers vs. Haubert
[1905], 198 U. S., 86; 25 S. Ct., 573; 49 Law. ed., 950, 954.).

It may be true, as seems admitted by counsel for the intervenors, in paragraph 8, page 3 of his brief, that the delay was
due to "the efforts towards reaching an amicable extrajudicial compromise," but this fact, we think, casts doubt instead
upon the motive which led the intervenors to bring criminal action against the petitioner. The petitioner claims that the
intention of the intervenors was to press upon settlement, with the continuous threat of criminal prosecution,
notwithstanding the probate of the will alleged to have been falsified. Argument of counsel for the petitioner in this regard
is not without justification. Thus after the filing of the second complaint with the justice of the peace court of Mexico,
complainant herself, as we have seen, asked for dismissal of the complaint, on the ground that "el acusado tenia la salud
bastante delicada," and, apparently because of failure to arrive at any settlement, she decided to renew her complaint.

Counsel for the intervenors contend — and the contention is sustained by the Court of Appeals — that the petitioner did
not complain heretofore of the denial of his constitutional right to a speedy trial. This is a mistake. When the petitioner,
for the fourth time, was ordered arrested by the Court of First Instance of Pampanga, he moved for reconsideration of the
order of arrest, alleging, among other things, "Que por estas continuas acusaciones e investigaciones, el acusado
compareciente no obstante su mal estado de salud desde el año 1932 en que tuvo que ser operado por padecer de
tuberculosis ha tenido que sostener litigios y ha sufrido la mar de humiliaciones y zozobras y ha incudo en enormes gastos
y molestias y ha desatendido su quebrantada salud." The foregoing allegation was inserted on page 6 of the amended
petition for certiorari presented to the Court of Appeals. The constitutional issue also appears to have been actually raised
and considered in the Court of Appeals. In the majority opinion of that court, it is stated:

Upon the foregoing facts, counsel for the petitioner submits for the consideration of this court the following questions of
law: First, that the respondent court acted arbitrarily and with abuse of its authority, with serious damage and prejudice
to the rights and interests of the petitioner, in allowing that the latter be prosecuted and arrested for the fourth time, and
that he be subjected, also for the fourth time, to a preliminary investigation for the same offense, hereby converting the
court into an instrument of oppression and vengeance on the part of the alleged offended parties, Rosario Basa et al.; . . .
.

And in the dissenting opinion, we find the following opening paragraph:

We cannot join in a decision declining to stop a prosecution that has dragged for about five years and caused the arrest
on four different occasions of a law abiding citizen for the alleged offense of falsifying a will that years be competent
jurisdiction.
From the view we take of the instant case, the petitioner is entitled to have the criminal proceedings against him quashed.
The judgment of the Court of Appeals is hereby reversed, without pronouncement regarding costs. So ordered.

[G.R. No. 138731. December 11, 2000]

TESTATE ESTATE OF MARIA MANUEL Vda. DE BIASCAN, petitioner, vs. ROSALINA C. BIASCAN, respondent.

DECISION

GONZAGA-REYES, J.:

This is a petition for review of the decision[1] of the Court of Appeals in CA-G.R. SP Case No. 44306 affirming the orders
dated October 22, 1996 and February 12, 1997 of the Regional Trial Court, Branch 4, Manila. These orders dismissed the
appeal of petitioner from the orders dated April 2, 1981 and April 30, 1985 of the same Regional Trial Court.

The facts of the case are as follows:

On June 3, 1975, private respondent Rosalina J. Biascan filed a petition[2] denominated as Special Proceeding No. 98037
at the then Court of First Instance, Branch 4, Manila praying for her appointment as administratrix of the intestate estate
of Florencio Biascan and Timotea Zulueta. In an Order dated August 13, 1975, private respondent was appointed as regular
administratrix of the estates.

On October 10, 1975, Maria Manuel Vda. De Biascan, the legal wife of Florencio Biascan entered her appearance as
Oppositor-Movant in SP. Proc. No. 98037.[3] Simultaneous with her appearance, she filed a pleading containing several
motions including a motion for intervention, a motion for the setting aside of private respondents appointment as special
administratrix and administratrix, and a motion for her appointment as administratrix of the estate of Florencio Biascan.[4]

After an exchange of pleadings between the parties, Judge Serafin Cuevas, then presiding judge of CFI Manila, Branch 4,
issued an Omnibus Order[5] dated November 13, 1975 which, among others, granted Marias intervention and set for trial
the motion to set aside the Orders appointing respondent as administratrix.

On April 2, 1981, the trial court issued an Order[6] resolving that: (1) Maria is the lawful wife of Florencio; (2) respondent
and her brother are the acknowledged natural children of Florencio; (3) all three are the legal heirs of Florencio who are
entitled to participate in the settlement proceedings; (4) the motion to set aside the order appointing private respondent
as administratrix is denied; and (5) the motion to approve inventory and appraisal of private respondent be deferred.
Maria, through her counsel, received a copy of this April 2, 1981 Order on April 9, 1981.[7]
On June 6, 1981, or fifty-eight (58) days after he receipt of the April 2, 1981 Order, Maria filed her motion for
reconsideration[8] which private respondent opposed.[9]

On November 15, 1981, the fourth floor of the City Hall of Manila was completely gutted by fire. The records of the
settlement proceedings were among those lost in the fire. Thus, on January 2, 1985, private respondent filed a Petition
for Reconstitution[10] of the said records.

Due to the delay caused by the fire and the reconstitution of the records, it was only on April 30, 1985 that the Regional
Trial Court of Manila, Branch 4 issued an Order[11] denying Marias June 6, 1981 Motion for Reconsideration.

Sometime thereafter, Maria died and her testate estate also became the subject of settlement proceedings. Atty. Marcial
F. Lopez was appointed as interim special administrator and engaged the services of the Siguion Reyna Montecillo and
Ongsiako Law Offices on Behalf of the estate.

On August 21, 1996, the law firm was allegedly made aware of and given notice of the April 30, 1985 Order when its
associate visited Branch 4 of the Regional Trial Court of Manila to inquire about the status of the case. The associate
checked the records if there was proof of service of the April 30, 1985 Order to the former counsel of Maria, Atty. Marcial
F. Lopez, but he discovered that there was none.[12] He was able to secure a certification[13] from the Clerk of Court of
the Regional Trial Court of Manila, Branch 4 which stated that there was no proof of service of the Order dated April 30,
1985 contained in the records of SP. Proc. No. 98037.

A Notice of Appeal[14] dated April 22, 1996 was filed by petitioner from the Orders dated April 2, 1981 and April 30, 1985
of the trial court. While the said notice of appeal was dated April 22, 1996, the stamp of the trial court on the first page of
the notice clearly indicated that the same was received by the trial court on September 20, 1996. A Record of Appeal[15]
dated September 20, 1996 was likewise filed by petitioner.

On October 22, 1996, the trial court issued an Order[16] denying petitioners appeal on the ground that the appeal was
filed out of time. The trial court ruled that the April 2, 1981 Order which was the subject of the appeal already became
final as the Motion for Reconsideration thereof was filed sixty-five (65) days after petitioner received the same. In addition,
the court ruled that the notice of appeal itself was filed manifestly late as the same was filed more than 11 years after the
issuance of the June 11, 1985 Order denying petitioners Motion for Reconsideration. The Motion for Reconsideration
dated November 13, 1996 of petitioner was likewise denied by the trial court in an Order[17] dated February 12, 1997.

Not satisfied with this decision, petitioner filed a Petition for Certiorari with Prayer for Mandatory Injunction[18] with the
Court of Appeals questioning the October 12, 1996 and February 12, 1997 Orders of the Regional Trial Court.

In a Decision[19] dated February 16, 1999, the First Division of the Court of Appeals denied the petition for certiorari of
petitioner. Petitioners Motion for Reconsideration was likewise denied by the appellate court in a Resolution[20] dated
May 18, 1999.
Hence, this Petition for Review on Certiorari where petitioner sets forth the following ground for the reversal of the
decision of the appellate court:

THE FIRST DIVISION OF THE COURT OF APPEALS (REVIEWING COURT) HAS SANCTIONED THE DEPARTURE BY THE
REGIONAL TRIAL COURT OF MANILA BRANCH 4 (TRIAL COURT) FROM THE USUAL COURSE OF JUDICIAL PROCEEDING IN
ISSUING THE ASSAILED 16 FEBRUARY 1999 DECISION AND THE 18 MAY 1999 RESOLUTION WHEN IT AFFIRMED THE
ERRONEOUS FINDING OF THE TRIAL COURT THAT THE ORDER DATED APRIL 2, 1981 BECAME FINAL AND EXECUTORY
DESPITE THE FACT THAT NO OPPOSITION ON ITS TIMELINESS WAS FILED AND MOREOVER NO RULING AS REGARDS ITS
TIMELINESS WAS MADE.[21]

There is no merit in the petition.

Section 1, Rule 109 of the Rules of Court enumerates the orders and judgments in special proceedings which may be the
subject of an appeal. Thus:

Section 1. Orders or judgments from which appeals may be taken. An interested person may appeal in a special proceeding
from an order or judgment rendered by a Regional Trial Court or a Juvenile and domestic Relations Court, where such
order or judgment:

(a) Allows or disallows a will;

(b) Determines who are the lawful heirs of a deceased person, or the distributive shares of the estate to which such person
is entitled;

(c) Allows, or disallows, in whole or in part, any claim against the estate of a deceased person, or any claim presented on
behalf of the estate in offset to a claim against it;

(d) Settles the account of an executor, administrator, trustee or guardian;

(e) Constitutes, in proceedings relating to the settlement of the estate of a deceased person, or the administration of a
trustee or guardian, a final determination in the lower court of the rights of the party appealing, except that no appeal
shall be allowed from the appointment of a special administrator; and

(f) Is the final order or judgment rendered in the case, and affects the substantial rights of the person appealing, unless it
be an order granting or denying a motion for new trial or for reconsideration.
An appeal is allowed in these aforesaid cases as these orders, decrees or judgments issued by a court in a special
proceeding constitute a final determination of the rights of the parties so appealing.[22] In contrast, interlocutory orders
are not appealable as these are merely incidental to judicial proceedings. In these cases, the court issuing such orders
retains control over the same and may thus modify, rescind, or revoke the same on sufficient grounds at any time before
the final judgment.[23]

In the instant case, the Order dated April 2, 1981 of the trial court decreed, among others, that Maria Manuel Vda. De
Biascan, the lawful wife of the deceased Florencio Biascan, private respondent Rosalina Biascan and her brother, German
Biascan, are entitled to participate in the settlement proceedings. Moreover, the said Order likewise denied Marias motion
to set aside the order appointing private respondent as regular administratrix of the estate. These rulings of the trial court
were precisely questioned by Maria in her Motion for Reconsideration dated June 6, 1981.

The ruling of the trial court that Maria, private respondent Rosalina Biascan and German Biascan were entitled to
participate in the settlement proceedings falls squarely under paragraph (b), Section 1, Rule 109 of the Rules of Court as
a proper subject of appeal. By so ruling, the trial court has effectively determined that the three persons are the lawful
heirs of the deceased. As such, the same may be the proper subject of an appeal.

Similarly, the ruling of the trial court denying petitioners motion to set aside the order appointing private respondent as
the regular administratrix of the estate of Florencio Bisacan is likewise a proper subject of an appeal. We have previously
held that an order of the trial court appointing a regular administrator of a deceased persons estate is a final determination
of the rights of the parties thereunder, and is thus, appealable.[24] This is in contrast with an order appointing a special
administrator who is appointed only for a limited time and for a specific purpose. Because of the temporary character and
special character of this appointment, the Rules deem it not advisable for any party to appeal from said temporary
appointment.[25] Considering however that private respondent has aleready been appointed as regular administratrix of
the estate of Florencio Biascan, her appointment as such may be questioned before the appellate court by way of appeal.

It is thus clear that the Order dated April 2, 1981 may be the proper subject of an appeal in a special proceeding. In special
proceedings, such as the instant proceeding for settlement of estate, the period of appeal from any decision or final order
rendered therein is thirty (30) days, a notice of appeal and a record on appeal being required.[26] The appeal period may
only be interrupted by the filing of a motion for new trial or reconsideration. Once the appeal period expires without an
appeal or a motion for reconsideration or new trial being perfected, the decision or order becomes final.

With respect to the Order dated April 2, 1981 issued by the trial court, petitioner admits that Maria Manuel Vda. De
Biascan, its predecessor-in-interest, received a copy of the same of April 9, 1981. Applying these rules, Maria or her counsel
had thirty (30) days or until May 9 within which to file a notice of appeal with record on appeal. She may also file a motion
for reconsideration, in which case the appeal period is deemed interrupted.

Considering that it was only June 6, 1981, or a full fifty-eight (58) days after receipt of the order, that a motion for
reconsideration was filed, it is clear that the same was filed out of time. As such, when the said motion for reconsideration
was filed, there was no more appeal period to interrupt as the Order had already become final.
Petitioner insists, however, that the order dated April 2, 1981 of the trial court did not become final and executory as no
opposition on its timeliness was filed and no ruling as regards its timeliness was made. Petitioner argues that although its
motion for reconsideration was denied in the Order dated April 30, 1985, the denial was made on grounds other than its
failure to ask for a reconsideration within the period prescribed by law. As such, petitioner concludes, any procedural
defect attending the Motion for Reconsideration was deemed cured when the trial court, in its Order dated April 30, 1985,
took cognizance of the same and rendered its ruling thereon.

There is no merit in this argument.

It is well-settled that judgment or orders become final and executory by operation of law and not by judicial declaration.
Thus, finality of a judgment becomes a fact upon the lapse of the reglementary period of appeal if no appeal is
perfected[27] or motion for reconsideration or new trial is filed. The trial court need not even pronounce the finality of
the order as the same becomes final by operation of law. In fact, the trial court could not even validly entertain a motion
for reconsideration filed after the lapse of the period for taking an appeal.[28] As such, it is of no moment that the opposing
party failed to object to the timeliness of the motion for reconsideration or that the court denied the same on grounds
other than timeliness considering that at the time the motion was filed, the Order dated April 2, 1981 had already become
final and executory. Being final and executory, the trial court can no longer alter, modify, or reverse the questioned
order.[29] The subsequent filing of the motion for reconsideration cannot disturb the finality of the judgment or order.[30]

Even if we assume that the Motion for Reconsideration filed by petitioner had the effect of suspending the running of the
appeal period for the April 2, 1981 Order, it is clear that petitioners notice of appeal of the orders of the trial court was
still filed out of time.

Under Section 3, Rule 41 of the Rules of Court then applicable, the time during which a motion to set aside the judgment
or order or for a new trial shall be deducted from the period from which to make an appeal. The rule further states that
where the motion was filed during office hours of the last day of the appeal period, the appeal must be perfected within
the day following that in which the party appealing received notice of the denial of said motion.

The Order of the trial court denying petitioners Motion for Reconsideration of the April 2, 1981 Order was issued on April
30, 1985. Allegedly, petitioner was only made aware of this April 30, 1985 Order on August 21, 1996 when it inquired from
the trial court about the status of the case. Giving petitioner the benefit of the doubt that it had indeed received notice of
the order denying its motion for reconsideration on August 21, 1996, it follows that petitioner only had until the following
day or on August 22, 1996 within which to perfect the appeal.

At this point, we note with disapproval petitioners attempt to pass off its Notice of Appeal as having been filed on August
22, 1996. In all its pleadings before this Court and the Court of Appeals, petitioner insists that its Notice of Appeal was
filed the day after it secured the August 21, 1996 Certification from the trial court. While the Notice of Appeal was
ostensibly dated August 22, 1996, it is clear from the stamp[31] of the trial court that the same was received only on
September 20, 1996. Moreover, in the Order dated October 22, 1996 of the trial court denying petitioners appeal, the
court clearly stated that the Notice of Appeal with accompanying Record on Appeal was filed on September 20, 1996.
Considering that it is clear from the records that petitioners notice of appeal was filed on September 20, 1996, the same
was clearly filed out of time as it only had until August 22, 1996 within which to file the said pleading. And while the rules
on special proceedings recognize that a motion for extension of time to file the notice of appeal and record of appeal may
be granted,[32]

WHEREFORE, premises considered, we hereby DISMISS the petition for lack of merit. The decision dated February 16,
1999 and the Resolution dated May 18, 1999 of the Court of Appeals are hereby AFFIRMED.

SO ORDERED.

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

REMEDIOS NUGUID, petitioner and appellant,

vs.

FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and appellees.

Custodio O. Partade for petitioner and appellant.

Beltran, Beltran and Beltran for oppositors and appellees.

SANCHEZ, J.:

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

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

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

On August 29, 1963, before a hearing was had on the petition for probate and objection thereto, oppositors moved to
dismiss on the ground of absolute preterition.
On September 6, 1963, petitioner registered her opposition to the motion to dismiss.1äwphï1.ñët

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

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

1. Right at the outset, a procedural aspect has engaged our attention. The case is for the probate of a will. The court's area
of inquiry is limited — to an examination of, and resolution on, the extrinsic validity of the will. The due execution thereof,
the testatrix's testamentary capacity, and the compliance with the requisites or solemnities by law prescribed, are the
questions solely to be presented, and to be acted upon, by the court. Said court at this stage of the proceedings — is not
called upon to rule on the intrinsic validity or efficacy of the provisions of the will, the legality of any devise or legacy
therein.1

A peculiar situation is here thrust upon us. The parties shunted aside the question of whether or not the will should be
allowed probate. For them, the meat of the case is the intrinsic validity of the will. Normally, this comes only after the
court has declared that the will has been duly authenticated.2 But petitioner and oppositors, in the court below and here
on appeal, travelled on the issue of law, to wit: Is the will intrinsically a nullity?

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

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

Reproduced hereunder is the will:

Nov. 17, 1951

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

T/ ROSARIO NUGUID

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

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

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

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

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

La pretericion consiste en omitar al heredero en el testamento. O no se le nombra siquiera o aun nombrandole como
padre, hijo, etc., no se le instituya heredero ni se le deshereda expresamente ni se le asigna parte alguna de los bienes,
resultando privado de un modo tacito de su derecho a legitima.

Para que exista pretericion, con arreglo al articulo 814, basta que en el testamento omita el testador a uno cualquiera de
aquellos a quienes por su muerte corresponda la herencia forzosa.

Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que la omision sea completa; que el heredero
forzoso nada reciba en el testamento.

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

To "annul" means to abrogate, to make void ... In re Morrow's Estate, 54 A. 342, 343, 204 Pa. 484.6
The word "annul" as used in statute requiring court to annul alimony provisions of divorce decree upon wife's remarriage
means to reduce to nothing; to annihilate; obliterate; blot out; to make void or of no effect; to nullify; to abolish. N.J.S.A.
2:50 — 38 (now N.J.S. 2A:34-35). Madden vs. Madden, 40 A. 2d 611, 614, 136 N..J Eq. 132.7

ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect; to nullify; to abolish; to do away with.
Ex parte Mitchell, 123 W. Va. 283, 14 S.E. 2d. 771, 774.8

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

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

The same view is expressed by Sanchez Roman: —

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Incompetent, CARMEN CAIZA, represented by her legal guardian, AMPARO EVANGELISTA, petitioner, vs. COURT OF
APPEALS (SPECIAL FIRST DIVISION), PEDRO ESTRADA and his wife, LEONORA ESTRADA, respondents.

DECISION

NARVASA, C.J.:

On November 20, 1989, being then ninety-four (94) years of age, Carmen Caiza, a spinster, a retired pharmacist, and
former professor of the College of Chemistry and Pharmacy of the University of the Philippines, was declared incompetent
by judgment[1] of the Regional Trial Court of Quezon City, Branch 107,[2] in a guardianship proceeding instituted by her
niece, Amparo A. Evangelista.[3] She was so adjudged because of her advanced age and physical infirmities which included
cataracts in both eyes and senile dementia. Amparo A. Evangelista was appointed legal guardian of her person and estate.

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

The amended Complaint[5] pertinently alleged that plaintiff Caiza was the absolute owner of the property in question,
covered by TCT No. 27147; that out of kindness, she had allowed the Estrada Spouses, their children, grandchildren and
sons-in-law to temporarily reside in her house, rent-free; that Caiza already had urgent need of the house on account of
her advanced age and failing health, "so funds could be raised to meet her expenses for support, maintenance and medical
treatment;" that through her guardian, Caiza had asked the Estradas verbally and in writing to vacate the house but they
had refused to do so; and that "by the defendants' act of unlawfully depriving plaintiff of the possession of the house in
question, they ** (were) enriching themselves at the expense of the incompetent, because, while they ** (were) saving
money by not paying any rent for the house, the incompetent ** (was) losing much money as her house could not be
rented by others." Also alleged was that the complaint was "filed within one (1) year from the date of first letter of demand
dated February 3, 1990."

In their Answer with Counterclaim, the defendants declared that they had been living in Caiza's house since the 1960's;
that in consideration of their faithful service they had been considered by Caiza as her own family, and the latter had in
fact executed a holographic will on September 4, 1988 by which she "bequeathed" to the Estradas the house and lot in
question.

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

But on appeal,[7] the decision was reversed by the Quezon City Regional Trial Court, Branch 96.[8] By judgment rendered
on October 21, 1992,[9] the RTC held that the "action by which the issue of defendants' possession should be resolved is
accion publiciana, the obtaining factual and legal situation ** demanding adjudication by such plenary action for recovery
of possession cognizable in the first instance by the Regional Trial Court."

Caiza sought to have the Court of Appeals reverse the decision of October 21, 1992, but failed in that attempt. In a
decision[10] promulgated on June 2, 1993, the Appellate Court[11] affirmed the RTC's judgment in toto. It ruled that (a)
the proper remedy for Caiza was indeed an accion publiciana in the RTC, not an accion interdictal in the MetroTC, since
the "defendants have not been in the subject premises as mere tenants or occupants by tolerance, they have been there
as a sort of adopted family of Carmen Caiza," as evidenced by what purports to be the holographic will of the plaintiff; and
(b) while "said will, unless and until it has passed probate by the proper court, could not be the basis of defendants' claim
to the property, ** it is indicative of intent and desire on the part of Carmen Caiza that defendants are to remain and are
to continue in their occupancy and possession, so much so that Caiza's supervening incompetency can not be said to have
vested in her guardian the right or authority to drive the defendants out."[12]

Through her guardian, Caiza came to this Court praying for reversal of the Appellate Court's judgment. She contends in
the main that the latter erred in (a) holding that she should have pursued an accion publiciana, and not an accion
interdictal; and in (b) giving much weight to "a xerox copy of an alleged holographic will, which is irrelevant to this
case."[13]

In the responsive pleading filed by them on this Court's requirement,[14] the Estradas insist that the case against them
was really not one of unlawful detainer; they argue that since possession of the house had not been obtained by them by
any "contract, express or implied," as contemplated by Section 1, Rule 70 of the Rules of Court, their occupancy of the
premises could not be deemed one "terminable upon mere demand (and hence never became unlawful) within the
context of the law." Neither could the suit against them be deemed one of forcible entry, they add, because they had been
occupying the property with the prior consent of the "real owner," Carmen Caiza, which "occupancy can even ripen into
full ownership once the holographic will of petitioner Carmen Caiza is admitted to probate." They conclude, on those
postulates, that it is beyond the power of Caiza's legal guardian to oust them from the disputed premises.

Carmen Caiza died on March 19, 1994,[15] and her heirs -- the aforementioned guardian, Amparo Evangelista, and Ramon
C. Nevado, her niece and nephew, respectively -- were by this Court's leave, substituted for her.[16]

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

It is axiomatic that what determines the nature of an action as well as which court has jurisdiction over it, are the
allegations of the complaint and the character of the relief sought.[17] An inquiry into the averments of the amended
complaint in the Court of origin is thus in order.[18]
The amended Complaint alleges:[19]

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

** ** **

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

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

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

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

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

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

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

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

Its prayer[20] is quoted below:

"WHEREFORE, in the interest of justice and the rule of law, plaintiff, Carmen Caiza, represented by her legal guardian.
Amparo Evangelista, respectfully prays to this Honorable Court, to render judgment in favor of plaintiff and against the
defendants as follows:

1. To order the defendants, their children, grandchildren, sons-in-law and other persons claiming under them, to vacate
the house and premises at No. 61 Scout Tobias, Quezon City, so that its possession can be restored to the plaintiff, Carmen
Caiza: and

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

3. To pay the costs of the suit."

In essence, the amended complaint states:

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

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

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

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

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

Undoubtedly, a cause of action for desahucio has been adequately set out. It is settled that in an action for unlawful
detainer, it suffices to allege that the defendant is unlawfully withholding possession from the plaintiff is deemed
sufficient,[21] and a complaint for unlawful detainer is sufficient if it alleges that the withholding of possession or the
refusal to vacate is unlawful without necessarily employing the terminology of the law.[22]

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

The argument is arrant sophistry. Caiza's act of allowing the Estradas to occupy her house, rent-free, did not create a
permanent and indefeasible right of possession in the latter's favor. Common sense, and the most rudimentary sense of
fairness clearly require that act of liberality be implicitly, but no less certainly, accompanied by the necessary burden on
the Estradas of returning the house to Caiza upon her demand. More than once has this Court adjudged that a person
who occupies the land of another at the latter's tolerance or permission without any contract between them is necessarily
bound by an implied promise that he will vacate upon demand, failing which a summary action for ejectment is the proper
remedy against him.[23] The situation is not much different from that of a tenant whose lease expires but who continues
in occupancy by tolerance of the owner, in which case there is deemed to be an unlawful deprivation or withholding of
possession as of the date of the demand to vacate.[24] In other words, one whose stay is merely tolerated becomes a
deforciant illegally occupying the land or property the moment he is required to leave.[25] Thus, in Asset Privatization
Trust vs. Court of Appeals,[26] where a company, having lawfully obtained possession of a plant upon its undertaking to
buy the same, refused to return it after failing to fulfill its promise of payment despite demands, this Court held that
"(a)fter demand and its repudiation, ** (its) continuing possession ** became illegal and the complaint for unlawful
detainer filed by the ** (plant's owner) was its proper remedy."

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

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

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

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

II

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

A will is essentially ambulatory; at any time prior to the testator's death, it may be changed or revoked;[29] and until
admitted to probate, it has no effect whatever and no right can be claimed thereunder, the law being quite explicit: "No
will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court" (ART.
838, id.).[30] An owner's intention to confer title in the future to persons possessing property by his tolerance, is not
inconsistent with the former's taking back possession in the meantime for any reason deemed sufficient. And that in this
case there was sufficient cause for the owner's resumption of possession is apparent: she needed to generate income
from the house on account of the physical infirmities afflicting her, arising from her extreme age.

Amparo Evangelista was appointed by a competent court the general guardian of both the person and the estate of her
aunt, Carmen Caiza. Her Letters of Guardianship[31] dated December 19, 1989 clearly installed her as the "guardian over
the person and properties of the incompetent CARMEN CAIZA with full authority to take possession of the property of
said incompetent in any province or provinces in which it may be situated and to perform all other acts necessary for the
management of her properties ** "[32] By that appointment, it became Evangelista's duty to care for her aunt's person,
to attend to her physical and spiritual needs, to assure her well-being, with right to custody of her person in preference
to relatives and friends.[33] It also became her right and duty to get possession of, and exercise control over, Caiza's
property, both real and personal, it being recognized principle that the ward has no right to possession or control of his
property during her incompetency.[34] That right to manage the ward's estate carries with it the right to take possession
thereof and recover it from anyone who retains it,[35] and bring and defend such actions as may be needful for this
purpose. [36]

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

"SEC. 4. Estate to be managed frugally, and proceeds applied to maintenance of ward. A guardian must manage the estate
of his ward frugally and without waste, and apply the income and profits thereof, so far as maybe necessary, to the
comfortable and suitable maintenance of the ward and his family, if there be any; and if such income and profits be
insufficient for that purpose, the guardian may sell or encumber the real estate, upon being authorized by order to do so,
and apply to such of the proceeds as may be necessary to such maintenance."

Finally, it may be pointed out in relation to the Estradas's defenses in the ejectment action, that as the law now stands,
even when, in forcible entry and unlawful detainer cases, the defendant raises the question of ownership in his pleadings
and the question of possession cannot be resolved without deciding the issue of ownership, the Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal Circuit Trial Courts nevertheless have the undoubted competence to resolve. "the
issue of ownership ** only to determine the issue of possession."[37]

III

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

While it is indeed well-established rule that the relationship of guardian and ward is necessarily terminated by the death
of either the guardian or the ward,[38] the rule affords no advantage to the Estradas. Amparo Evangelista, as niece of
Carmen Caiza, is one of the latter's only two (2) surviving heirs, the other being Caiza's nephew, Ramon C. Nevado. On
their motion and by Resolution of this Court[39] of June 20, 1994, they were in fact substituted as parties in the appeal at
bar in place of the deceased, in accordance with Section 17, Rule 3 of the Rules of Court, viz.:[40]

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

To be sure, an ejectment case survives the death of a party. Caiza's demise did not extinguish the desahucio suit instituted
by her through her guardian.[41] That action, not being a purely personal one, survived her death; her heirs have taken
her place and now represent her interests in the appeal at bar.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals promulgated on June 2, 1993 -- affirming the
Regional Trial Court's judgment and dismissing petitioner's petition for certiorari -- is REVERSED and SET ASIDE, and the
Decision dated April 13, 1992 of the Metropolitan Trial Court of Quezon City, Branch 35, in Civil Case No. 3410 is
REINSTATED and AFFIRMED. Costs against private respondents.

SO ordered.

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

In re of Dolores Coronel, deceased.

LORENZO PECSON, applicant-appellee,

vs.

AGUSTIN CORONEL, ET AL., opponents-appellants.

Fisher, DeWitt, Perkins and Brady for appellants.

Ross and Lawrence and Guillermo Lualhati for appellee.

ROMUALDEZ, J.:

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

In the name of God, Amen:

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

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

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

I name and appoint my aforesaid nephew, Lorenzo Pecson, executor of all that is willed and ordained in this my will,
without bond. Should he not be able to discharge his duties as such executor for any reason whatsoever, I name and
appoint as substitute executor my grandson Victor Pecson, a native and resident of the town of Betis, without requiring
him to give bond. 1awph!l.net

All my real and paraphernal property as well as my credits for I declare that I have no debts, are specified in an inventory.

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

VICENTE J. FRANCISCO
"For the testatrix Dolores Coronel

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

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

MARIANO L. CRISOSTOMO PABLO BARTOLOME MARCOS DE LA CRUZ DAMIAN CRISOSTOMO

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

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

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

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

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

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

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

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

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

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

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

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

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

1. That my present property was acquired by me by inheritance from my parents, but a great part thereof was acquired
by me by my own efforts and exertions;
2. That I have made no inventory of my properties, but they can be seen in the title deeds in my possession and in the
declarations of ownership;

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

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

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

6. That as I cannot write I requested Martin Pangilinan, a native and resident of this town, to write this will in accordance
with my wishes and precise instructions.

In testimony whereof I had the said Martin Pangilinan write my name and surname, and affixed my mark between my
name and surname, and don Francisco Dumaual, Don Mariano Sunglao, Don Sotero Dumaual, Don Marcos de la Cruz and
Don Martin Pangilinan signed as witnesses, they having been present at the beginning of, during, and after, the execution
of this my last will.

(Sgd.) "DOLORES CORONEL

Witnesses:

(Sgd.) "MARIANO SUNGLAO

MARCOS DE LA CRUZ

FRANCISCO DUMAUAL

SOTERO DUMAUAL

MARTIN PANGILINAN"

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

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

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

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

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

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

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

Upon the filing of the motion for a rehearing on the first order allowing the probate of the will, the opponents presented
an affidavit of Pablo Bartolome to the effect that, following instructions of Lorenzo Pecson, he had informed the testatrix
that the contents of the will were that she entrusted Pecson with the distribution of all her property among the relatives
of the said Dolores. But during the new trial Pablo Bartolome, in spite of being present in the court room on the day of
the trial, was not introduced as a witness, without such an omission having been satisfactorily accounted for.
While it is true that the petitioner was bound to present Pablo Bartolome, being one of the witnesses who signed the will,
at the second hearing when the probate was controverted, yet we cannot consider this point against the appellee for this
was not raised in any of the assignments of error made by the appellants. (Art. 20, Rules of the Supreme Court.)

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

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

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

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

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

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

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

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

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

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

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

Attorney Francisco is charged with having employed improper means of making Lorenzo Pecson appear in the will as sole
beneficiary. However, after an examination of all the proceedings had, we cannot find anything in the behavior of this
lawyer, relative to the preparation and execution of the will, that would justify an unfavorable conclusion as to his personal
and professional conduct, nor that he should harbor any wrongful or fraudulent purpose.
We find nothing censurable in his conduct in advising Dolores Coronel to make a new will other than the last one, Exhibit
B (in the drawing of which he does not appear to her intervened), so that the instrument might be executed with all the
new formalities required by the laws then in force; nor in the preparation of the new will substantially in accordance with
the old one; nor in the selection of attesting witnesses who were persons other than the relatives of Dolores Coronel.
Knowing, as he did, that Dolores was excluding her blood relatives from the inheritance, in spite of her having been asked
by him whether their exclusion was due to a mere inadvertence, there is a satisfactory explanation, compatible with
honorable conduct, why said attorney should prescind from such relatives in the attesting of the will, to the end that no
obstacle be placed in the way to the probating thereof.

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

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

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

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

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

Although Norberto Paras testified having heard, when the will was being read to Dolores Coronel, the provision whereby
the estate was ordered distributed among the heirs, the preponderance of the evidence is to the effect that said Norberto
Paras was not present at such reading of the will. Appellant do not insist on the probative force of the testimony of this
witness, and do not oppose its being stricken out.
The data furnished by the case do not show, to our mind, that Dolores Coronel should have had the intention of giving her
estate to her blood relatives instead of to Lorenzo Pecson at the time of the execution of the will Exhibit A, nor that fraud
or whatever other illegal cause or undue influence should have intervened in the execution of said testament. Neither
fraud nor evil is presumed and the record does not show either.

Turning to the second assignment of error, which is made to consist in the will having been probated in spite of the fact
that the attestation clause was not in conformity with the provision of section 618 of the Code of Civil Procedure, as
amended by Act No. 2645, let us examine the tenor of such clause which literally is as follows:

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

(Sgd.) "Maximo Vergara, Sotero Dumaual, Marcos de los Santos, Mariano L. Crisostomo, Pablo
Bartolome, Marcos de la Cruz, Damian Crisostomo."

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

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

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

each of us signed in the presence of others.

Two interpretations can absolutely be given here to the expression "of others." One, that insinuated by the appellants,
namely, that it is equivalent to "of other persons," and the other, that contended by the appellee, to wit, that the phrase
should be held to mean "of the others," the article "the" having inadvertently been omitted.
Should the first interpretation prevail and "other persons" be taken to mean persons different from the attesting
witnesses, then one of the solemnities required by law would be lacking. Should the second be adopted and "of others"
construed as meaning the other witnesses to the will, then the law would have been complied with in this respect.

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

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

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

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

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

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

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

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

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

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

In conclusion we hold that the assignments of error made by the appellants are not supported by the evidence of record.

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

G.R. No. 72706 October 27, 1987

CONSTANTINO C. ACAIN, petitioner,

vs.

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

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

The dispositive portion of the questioned decision reads as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(E) There may be nothing in Article 854 of the New Civil Code, that suggests that mere institution of a universal heir
in the will would give the heir so instituted a share in the inheritance but there is a definite distinct intention of the testator
in the case at bar, explicitly expressed in his will. This is what matters and should be in violable.
(F) As an instituted heir, petitioner has the legal interest and standing to file the petition in Sp. Proc. No. 591 ACEB
for probate of the will of Nemesio Acain and

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

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

Article 854 of the Civil Code provides:

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

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

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

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

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

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

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

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

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

We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On the contrary, this
litigation will be protracted. And for aught that appears in the record, in the event of probate or if the court rejects the
will, probability exists that the case will come up once again before us on the same issue of the intrinsic validity or nullity
of the will. Result: waste of time, effort, expense, plus added anxiety. These are the practical considerations that induce
us to a belief that we might as well meet head-on the issue of the validity of the provisions of the will in question. After
all there exists a justiciable controversy crying for solution.
In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the petition by the surviving spouse was grounded on
petitioner's lack of legal capacity to institute the proceedings which was fully substantiated by the evidence during the
hearing held in connection with said motion. The Court upheld the probate court's order of dismissal.

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

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

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

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

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

SO ORDERED.

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 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.

[G.R. No. 137287. February 15, 2000]

REBECCA VIADO NON, JOSE A. NON and DELIA VIADO, petitioners, vs. THE HONORABLE COURT OF APPEALS, ALICIA N.
VIADO, CHERRI VIADO and FE FIDES VIADO, respondents. LEX

DECISION

VITUG, J.:

Petitioners, in their petition for review on certiorari under Rule 45 of the Rules of Court, seek a reversal of the 29th May
1996 decision of the Court of Appeals, basically affirming that rendered on 30 April 1991 by the Regional Trial Court ("RTC")
of Quezon City, Branch 23, adjudicating the property subject matter of the litigation to respondents. The case and the
factual setting found by the Court of Appeals do not appear to deviate significantly from that made by the trial court.

During their lifetime, the spouses Julian C. Viado and Virginia P. Viado owned several pieces of property, among them a
house and lot located at 147 Isarog Street, La Loma, Quezon City, covered by Transfer Certificate of Title No. 42682. Virginia
P. Viado died on 20 October 1982. Julian C. Viado died three years later on 15 November 1985. Surviving them were their
children -- Nilo Viado, Leah Viado Jacobs, and herein petitioners Rebecca Viado, married to Jose Non, and Delia Viado. Nilo
Viado and Leah Viado Jacobs both died on 22 April 1987. Nilo Viado left behind as his own sole heirs herein respondents
--- his wife Alicia Viado and their two children Cherri Viado and Fe Fides Viado.

Petitioners and respondents shared, since 1977, a common residence at the Isarog property. Soon, however, tension
would appear to have escalated between petitioner Rebecca Viado and respondent Alicia Viado after the former had
asked that the property be equally divided between the two families to make room for the growing children. Respondents,
forthwith, claimed absolute ownership over the entire property and demanded that petitioners vacate the portion
occupied by the latter. On 01 February 1988, petitioners, asserting co-ownership over the property in question, filed a
case for partition before the Quezon City RTC (Branch 93). Jj sc

Respondents predicated their claim of absolute ownership over the subject property on two documents --- a deed of
donation executed by the late Julian Viado covering his one-half conjugal share of the Isarog property in favor of Nilo
Viado and a deed of extrajudicial settlement in which Julian Viado, Leah Viado Jacobs (through a power of attorney in
favor of Nilo Viado) and petitioner Rebecca Viado waived in favor of Nilo Viado their rights and interests over their share
of the property inherited from Virginia Viado. Both instruments were executed on 26 August 1983 and registered on 07
January 1988 by virtue of which Transfer Certificate of Title No. 42682 was cancelled and new Transfer Certificate of Title
No. 373646 was issued to the heirs of Nilo Viado.

Petitioners, in their action for partition, attacked the validity of the foregoing instruments, contending that the late Nilo
Viado employed forgery and undue influence to coerce Julian Viado to execute the deed of donation. Petitioner Rebecca
Viado, in her particular case, averred that her brother Nilo Viado employed fraud to procure her signature to the deed of
extrajudicial settlement. She added that the exclusion of her retardate sister, Delia Viado, in the extrajudicial settlement,
resulted in the latter's preterition that should warrant its annulment. Finally, petitioners asseverated at the assailed
instruments, although executed on 23 August 1983, were registered only five years later, on 07 January 1988, when the
three parties thereto, namely, Julian Viado, Nilo Viado and Leah Viado Jacobs had already died. Sc jj

Assessing the evidence before it, the trial court found for respondents and adjudged Alicia Viado and her children as being
the true owners of the disputed property.

On appeal, the Court of Appeals affirmed the decision of the trial court with modification by ordering the remand of the
records of the case to the court a quo for further proceedings to determine the value of the property and the amount
respondents should pay to petitioner Delia Viado for having been preterited in the deed of extrajudicial settlement.

Petitioners are now before the Supreme Court to seek the reversal of the decision of the Court of Appeals.

The appellate court ruled correctly.

When Virginia P. Viado died intestate in 1982, her part of the conjugal property, the Isarog property in question included,
was transmitted to her heirs --- her husband Julian and their children Nilo Viado, Rebecca Viado, Leah Viado and Delia
Viado. The inheritance, which vested from the moment of death of the decedent,[1] remained under a co-ownership
regime[2] among the heirs until partition.[3] Every act intended to put an end to indivision among co-heirs and legatees
or devisees would be a partition although it would purport to be a sale, an exchange, a compromise, a donation or an
extrajudicial settlement.[4]

In debunking the continued existence of a co-ownership among the parties hereto, respondents rely on the deed of
donation and deed of extrajudicial settlement which consolidated the title solely to Nilo Viado. Petitioners assail the due
execution of the documents on the grounds heretofore expressed. Sj cj

Unfortunately for petitioners, the issues they have raised boil down to the appreciation of the evidence, a matter that has
been resolved by both the trial court and the appellate court. The Court of Appeals, in sustaining the court a quo, has
found the evidence submitted by petitioners to be utterly wanting, consisting of, by and large, self-serving testimonies.
While asserting that Nilo Viado employed fraud, forgery and undue influence in procuring the signatures of the parties to
the deeds of donation and of extrajudicial settlement, petitioners are vague, however, on how and in what manner those
supposed vices occurred. Neither have petitioners shown proof why Julian Viado should be held incapable of exercising
sufficient judgment in ceding his rights and interest over the property to Nilo Viado. The asseveration of petitioner Rebecca
Viado that she has signed the deed of extrajudicial settlement on the mistaken belief that the instrument merely pertained
to the administration of the property is too tenuous to accept. It is also quite difficult to believe that Rebecca Viado, a
teacher by profession, could have misunderstood the tenor of the assailed document.

The fact alone that the two deeds were registered five years after the date of their execution did not adversely affect their
validity nor would such circumstance alone be indicative of fraud. The registration of the documents was a ministerial
act[5] and merely created a constructive notice of its contents against all third persons.[6] Among the parties, the
instruments remained completely valid and binding. Supreme

The exclusion of petitioner Delia Viado, alleged to be a retardate, from the deed of extrajudicial settlement verily has had
the effect of preterition. This kind of preterition, however, in the absence of proof of fraud and bad faith, does not justify
a collateral attack on Transfer Certificate of Title No. 373646. The relief, as so correctly pointed out by the Court of Appeals,
instead rests on Article 1104 of the Civil Code to the effect that where the preterition is not attended by bad faith and
fraud, the partition shall not be rescinded but the preterited heir shall be paid the value of the share pertaining to her.
Again, the appellate court has thus acted properly in ordering the remand of the case for further proceedings to make the
proper valuation of the Isarog property and ascertainment of the amount due petitioner Delia Viado.

WHEREFORE, the instant petition is DENIED, and the decision, dated May 29, 1996, in CA-G.R. No. 37272 of the Court of
Appeals is AFFIRMED. No special pronouncement on costs. Court

SO ORDERED.

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 Doña 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 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.

The judgment appealed from is affirmed, with costs against the appellant, Mariano Garchitorena. So ordered.

[G.R. No. 113725. June 29, 2000]

JOHNNY S. RABADILLA,[1] petitioner, vs. COURT OF APPEALS AND MARIA MARLENA[2] COSCOLUELLA Y BELLEZA
VILLACARLOS, respondents.

DECISION
PURISIMA, J.:

This is a petition for review of the decision of the Court of Appeals,[3] dated December 23, 1993, in CA-G.R. No. CV-35555,
which set aside the decision of Branch 52 of the Regional Trial Court in Bacolod City, and ordered the defendants-appellees
(including herein petitioner), as heirs of Dr. Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its fruits
and interests, to the estate of Aleja Belleza.

The antecedent facts are as follows:

In a Codicil appended to the Last Will and Testament of testatrix Aleja Belleza, Dr. Jorge Rabadilla, predecessor-in-interest
of the herein petitioner, Johnny S. Rabadilla, was instituted as a devisee of 511, 855 square meters of that parcel of land
surveyed as Lot No. 1392 of the Bacolod Cadastre. The said Codicil, which was duly probated and admitted in Special
Proceedings No. 4046 before the then Court of First Instance of Negros Occidental, contained the following provisions:

"FIRST

I give, leave and bequeath the following property owned by me to Dr. Jorge Rabadilla resident of 141 P. Villanueva, Pasay
City:

(a) Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10942), which is registered
in my name according to the records of the Register of Deeds of Negros Occidental.

(b) That should Jorge Rabadilla die ahead of me, the aforementioned property and the rights which I shall set forth
hereinbelow, shall be inherited and acknowledged by the children and spouse of Jorge Rabadilla.

xxx

FOURTH

(a)....It is also my command, in this my addition (Codicil), that should I die and Jorge Rabadilla shall have already received
the ownership of the said Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002
(10942), and also at the time that the lease of Balbinito G. Guanzon of the said lot shall expire, Jorge Rabadilla shall have
the obligation until he dies, every year to give to Maria Marlina Coscolluela y Belleza, Seventy (75) (sic) piculs of Export
sugar and Twenty Five (25) piculs of Domestic sugar, until the said Maria Marlina Coscolluela y Belleza dies.

FIFTH
(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392 of the Bacolod Cadastre, covered by Transfer
Certificate of Title No. RT-4002 (10492), shall have the obligation to still give yearly, the sugar as specified in the Fourth
paragraph of his testament, to Maria Marlina Coscolluela y Belleza on the month of December of each year.

SIXTH

I command, in this my addition (Codicil) that the Lot No. 1392, in the event that the one to whom I have left and
bequeathed, and his heir shall later sell, lease, mortgage this said Lot, the buyer, lessee, mortgagee, shall have also the
obligation to respect and deliver yearly ONE HUNDRED (100) piculs of sugar to Maria Marlina Coscolluela y Belleza, on
each month of December, SEVENTY FIVE (75) piculs of Export and TWENTY FIVE (25) piculs of Domestic, until Maria Marlina
shall die, lastly should the buyer, lessee or the mortgagee of this lot, not have respected my command in this my addition
(Codicil), Maria Marlina Coscolluela y Belleza, shall immediately seize this Lot No. 1392 from my heir and the latter's heirs,
and shall turn it over to my near desendants, (sic) and the latter shall then have the obligation to give the ONE HUNDRED
(100) piculs of sugar until Maria Marlina shall die. I further command in this my addition (Codicil) that my heir and his heirs
of this Lot No. 1392, that they will obey and follow that should they decide to sell, lease, mortgage, they cannot negotiate
with others than my near descendants and my sister."[4]

Pursuant to the same Codicil, Lot No. 1392 was transferred to the deceased, Dr. Jorge Rabadilla, and Transfer Certificate
of Title No. 44498 thereto issued in his name.

Dr. Jorge Rabadilla died in 1983 and was survived by his wife Rufina and children Johnny (petitioner), Aurora, Ofelia and
Zenaida, all surnamed Rabadilla.

On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos brought a complaint, docketed as Civil Case No. 5588,
before Branch 52 of the Regional Trial Court in Bacolod City, against the above-mentioned heirs of Dr. Jorge Rabadilla, to
enforce the provisions of subject Codicil. The Complaint alleged that the defendant-heirs violated the conditions of the
Codicil, in that:

1. Lot No. 1392 was mortgaged to the Philippine National Bank and the Republic Planters Bank in disregard of the
testatrix's specific instruction to sell, lease, or mortgage only to the near descendants and sister of the testatrix.

2. Defendant-heirs failed to comply with their obligation to deliver one hundred (100) piculs of sugar (75 piculs export
sugar and 25 piculs domestic sugar) to plaintiff Maria Marlena Coscolluela y Belleza from sugar crop years 1985 up to the
filing of the complaint as mandated by the Codicil, despite repeated demands for compliance.

3. The banks failed to comply with the 6th paragraph of the Codicil which provided that in case of the sale, lease, or
mortgage of the property, the buyer, lessee, or mortgagee shall likewise have the obligation to deliver 100 piculs of sugar
per crop year to herein private respondent.
The plaintiff then prayed that judgment be rendered ordering defendant-heirs to reconvey/return-Lot No. 1392 to the
surviving heirs of the late Aleja Belleza, the cancellation of TCT No. 44498 in the name of the deceased, Dr. Jorge Rabadilla,
and the issuance of a new certificate of title in the names of the surviving heirs of the late Aleja Belleza.

On February 26, 1990, the defendant-heirs were declared in default but on March 28, 1990 the Order of Default was lifted,
with respect to defendant Johnny S. Rabadilla, who filed his Answer, accordingly.

During the pre-trial, the parties admitted that:

On November 15, 1998, the plaintiff (private respondent) and a certain Alan Azurin, son-in-law of the herein petitioner
who was lessee of the property and acting as attorney-in-fact of defendant-heirs, arrived at an amicable settlement and
entered into a Memorandum of Agreement on the obligation to deliver one hundred piculs of sugar, to the following
effect:

"That for crop year 1988-89, the annuity mentioned in Entry No. 49074 of TCT No. 44489 will be delivered not later than
January of 1989, more specifically, to wit:

75 piculs of 'A' sugar, and 25 piculs of 'B' sugar, or then existing in any of our names, Mary Rose Rabadilla y Azurin or Alan
Azurin, during December of each sugar crop year, in Azucar Sugar Central; and, this is considered compliance of the annuity
as mentioned, and in the same manner will compliance of the annuity be in the next succeeding crop years.

That the annuity above stated for crop year 1985-86, 1986-87, and 1987-88, will be complied in cash equivalent of the
number of piculs as mentioned therein and which is as herein agreed upon, taking into consideration the composite price
of sugar during each sugar crop year, which is in the total amount of ONE HUNDRED FIVE THOUSAND PESOS (P105,000.00).

That the above-mentioned amount will be paid or delivered on a staggered cash installment, payable on or before the end
of December of every sugar crop year, to wit:

For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop
year 1988-89;

For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop
year 1989-90;

For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop
year 1990-91; and
For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop
year 1991-92."[5]

However, there was no compliance with the aforesaid Memorandum of Agreement except for a partial delivery of 50.80
piculs of sugar corresponding to sugar crop year 1988 -1989.

On July 22, 1991, the Regional Trial Court came out with a decision, dismissing the complaint and disposing as follows:

"WHEREFORE, in the light of the aforegoing findings, the Court finds that the action is prematurely filed as no cause of
action against the defendants has as yet arose in favor of plaintiff. While there maybe the non-performance of the
command as mandated exaction from them simply because they are the children of Jorge Rabadilla, the title holder/owner
of the lot in question, does not warrant the filing of the present complaint. The remedy at bar must fall. Incidentally, being
in the category as creditor of the left estate, it is opined that plaintiff may initiate the intestate proceedings, if only to
establish the heirs of Jorge Rabadilla and in order to give full meaning and semblance to her claim under the Codicil.

In the light of the aforegoing findings, the Complaint being prematurely filed is DISMISSED without prejudice.

SO ORDERED."[6]

On appeal by plaintiff, the First Division of the Court of Appeals reversed the decision of the trial court; ratiocinating and
ordering thus:

"Therefore, the evidence on record having established plaintiff-appellant's right to receive 100 piculs of sugar annually
out of the produce of Lot No. 1392; defendants-appellee's obligation under Aleja Belleza's codicil, as heirs of the modal
heir, Jorge Rabadilla, to deliver such amount of sugar to plaintiff-appellant; defendants-appellee's admitted non-
compliance with said obligation since 1985; and, the punitive consequences enjoined by both the codicil and the Civil
Code, of seizure of Lot No. 1392 and its reversion to the estate of Aleja Belleza in case of such non-compliance, this Court
deems it proper to order the reconveyance of title over Lot No. 1392 from the estates of Jorge Rabadilla to the estate of
Aleja Belleza. However, plaintiff-appellant must institute separate proceedings to re-open Aleja Belleza's estate, secure
the appointment of an administrator, and distribute Lot No. 1392 to Aleja Belleza's legal heirs in order to enforce her right,
reserved to her by the codicil, to receive her legacy of 100 piculs of sugar per year out of the produce of Lot No. 1392 until
she dies.

Accordingly, the decision appealed from is SET ASIDE and another one entered ordering defendants-appellees, as heirs of
Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its fruits and interests, to the estate of Aleja Belleza.

SO ORDERED."[7]
Dissatisfied with the aforesaid disposition by the Court of Appeals, petitioner found his way to this Court via the present
petition, contending that the Court of Appeals erred in ordering the reversion of Lot 1392 to the estate of the testatrix
Aleja Belleza on the basis of paragraph 6 of the Codicil, and in ruling that the testamentary institution of Dr. Jorge Rabadilla
is a modal institution within the purview of Article 882 of the New Civil Code.

The petition is not impressed with merit.

Petitioner contends that the Court of Appeals erred in resolving the appeal in accordance with Article 882 of the New Civil
Code on modal institutions and in deviating from the sole issue raised which is the absence or prematurity of the cause of
action. Petitioner maintains that Article 882 does not find application as there was no modal institution and the testatrix
intended a mere simple substitution - i.e. the instituted heir, Dr. Jorge Rabadilla, was to be substituted by the testatrix's
"near descendants" should the obligation to deliver the fruits to herein private respondent be not complied with. And
since the testatrix died single and without issue, there can be no valid substitution and such testamentary provision cannot
be given any effect.

The petitioner theorizes further that there can be no valid substitution for the reason that the substituted heirs are not
definite, as the substituted heirs are merely referred to as "near descendants" without a definite identity or reference as
to who are the "near descendants" and therefore, under Articles 843[8] and 845[9] of the New Civil Code, the substitution
should be deemed as not written.

The contentions of petitioner are untenable. Contrary to his supposition that the Court of Appeals deviated from the issue
posed before it, which was the propriety of the dismissal of the complaint on the ground of prematurity of cause of action,
there was no such deviation. The Court of Appeals found that the private respondent had a cause of action against the
petitioner. The disquisition made on modal institution was, precisely, to stress that the private respondent had a legally
demandable right against the petitioner pursuant to subject Codicil; on which issue the Court of Appeals ruled in
accordance with law.

It is a general rule under the law on succession that successional rights are transmitted from the moment of death of the
decedent[10] and compulsory heirs are called to succeed by operation of law. The legitimate children and descendants,
in relation to their legitimate parents, and the widow or widower, are compulsory heirs.[11] Thus, the petitioner, his
mother and sisters, as compulsory heirs of the instituted heir, Dr. Jorge Rabadilla, succeeded the latter by operation of
law, without need of further proceedings, and the successional rights were transmitted to them from the moment of
death of the decedent, Dr. Jorge Rabadilla.

Under Article 776 of the New Civil Code, inheritance includes all the property, rights and obligations of a person, not
extinguished by his death. Conformably, whatever rights Dr. Jorge Rabadilla had by virtue of subject Codicil were
transmitted to his forced heirs, at the time of his death. And since obligations not extinguished by death also form part of
the estate of the decedent; corollarily, the obligations imposed by the Codicil on the deceased Dr. Jorge Rabadilla, were
likewise transmitted to his compulsory heirs upon his death.
In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge Rabadilla, subject to the condition that the
usufruct thereof would be delivered to the herein private respondent every year. Upon the death of Dr. Jorge Rabadilla,
his compulsory heirs succeeded to his rights and title over the said property, and they also assumed his (decedent's)
obligation to deliver the fruits of the lot involved to herein private respondent. Such obligation of the instituted heir
reciprocally corresponds to the right of private respondent over the usufruct, the fulfillment or performance of which is
now being demanded by the latter through the institution of the case at bar. Therefore, private respondent has a cause
of action against petitioner and the trial court erred in dismissing the complaint below.

Petitioner also theorizes that Article 882 of the New Civil Code on modal institutions is not applicable because what the
testatrix intended was a substitution - Dr. Jorge Rabadilla was to be substituted by the testatrix's near descendants should
there be noncompliance with the obligation to deliver the piculs of sugar to private respondent.

Again, the contention is without merit.

Substitution is the designation by the testator of a person or persons to take the place of the heir or heirs first instituted.
Under substitutions in general, the testator may either (1) provide for the designation of another heir to whom the
property shall pass in case the original heir should die before him/her, renounce the inheritance or be incapacitated to
inherit, as in a simple substitution,[12] or (2) leave his/her property to one person with the express charge that it be
transmitted subsequently to another or others, as in a fideicommissary substitution.[13] The Codicil sued upon
contemplates neither of the two.

In simple substitutions, the second heir takes the inheritance in default of the first heir by reason of incapacity, predecease
or renunciation.[14] In the case under consideration, the provisions of subject Codicil do not provide that should Dr. Jorge
Rabadilla default due to predecease, incapacity or renunciation, the testatrix's near descendants would substitute him.
What the Codicil provides is that, should Dr. Jorge Rabadilla or his heirs not fulfill the conditions imposed in the Codicil,
the property referred to shall be seized and turned over to the testatrix's near descendants.

Neither is there a fideicommissary substitution here and on this point, petitioner is correct. In a fideicommissary
substitution, the first heir is strictly mandated to preserve the property and to transmit the same later to the second
heir.[15] In the case under consideration, the instituted heir is in fact allowed under the Codicil to alienate the property
provided the negotiation is with the near descendants or the sister of the testatrix. Thus, a very important element of a
fideicommissary substitution is lacking; the obligation clearly imposing upon the first heir the preservation of the property
and its transmission to the second heir. "Without this obligation to preserve clearly imposed by the testator in his will,
there is no fideicommissary substitution."[16] Also, the near descendants' right to inherit from the testatrix is not definite.
The property will only pass to them should Dr. Jorge Rabadilla or his heirs not fulfill the obligation to deliver part of the
usufruct to private respondent.

Another important element of a fideicommissary substitution is also missing here. Under Article 863, the second heir or
the fideicommissary to whom the property is transmitted must not be beyond one degree from the first heir or the
fiduciary. A fideicommissary substitution is therefore, void if the first heir is not related by first degree to the second
heir.[17] In the case under scrutiny, the near descendants are not at all related to the instituted heir, Dr. Jorge Rabadilla.
The Court of Appeals erred not in ruling that the institution of Dr. Jorge Rabadilla under subject Codicil is in the nature of
a modal institution and therefore, Article 882 of the New Civil Code is the provision of law in point. Articles 882 and 883
of the New Civil Code provide:

Art. 882. The statement of the object of the institution or the application of the property left by the testator, or the charge
imposed on him, shall not be considered as a condition unless it appears that such was his intention.

That which has been left in this manner may be claimed at once provided that the instituted heir or his heirs give security
for compliance with the wishes of the testator and for the return of anything he or they may receive, together with its
fruits and interests, if he or they should disregard this obligation.

Art. 883. When without the fault of the heir, an institution referred to in the preceding article cannot take effect in the
exact manner stated by the testator, it shall be complied with in a manner most analogous to and in conformity with his
wishes.

The institution of an heir in the manner prescribed in Article 882 is what is known in the law of succession as an institucion
sub modo or a modal institution. In a modal institution, the testator states (1) the object of the institution, (2) the purpose
or application of the property left by the testator, or (3) the charge imposed by the testator upon the heir.[18] A "mode"
imposes an obligation upon the heir or legatee but it does not affect the efficacy of his rights to the succession.[19] On
the other hand, in a conditional testamentary disposition, the condition must happen or be fulfilled in order for the heir
to be entitled to succeed the testator. The condition suspends but does not obligate; and the mode obligates but does not
suspend.[20] To some extent, it is similar to a resolutory condition.[21]

From the provisions of the Codicil litigated upon, it can be gleaned unerringly that the testatrix intended that subject
property be inherited by Dr. Jorge Rabadilla. It is likewise clearly worded that the testatrix imposed an obligation on the
said instituted heir and his successors-in-interest to deliver one hundred piculs of sugar to the herein private respondent,
Marlena Coscolluela Belleza, during the lifetime of the latter. However, the testatrix did not make Dr. Jorge Rabadilla's
inheritance and the effectivity of his institution as a devisee, dependent on the performance of the said obligation. It is
clear, though, that should the obligation be not complied with, the property shall be turned over to the testatrix's near
descendants. The manner of institution of Dr. Jorge Rabadilla under subject Codicil is evidently modal in nature because
it imposes a charge upon the instituted heir without, however, affecting the efficacy of such institution.

Then too, since testamentary dispositions are generally acts of liberality, an obligation imposed upon the heir should not
be considered a condition unless it clearly appears from the Will itself that such was the intention of the testator. In case
of doubt, the institution should be considered as modal and not conditional.[22]

Neither is there tenability in the other contention of petitioner that the private respondent has only a right of usufruct
but not the right to seize the property itself from the instituted heir because the right to seize was expressly limited to
violations by the buyer, lessee or mortgagee.
In the interpretation of Wills, when an uncertainty arises on the face of the Will, as to the application of any of its
provisions, the testator's intention is to be ascertained from the words of the Will, taking into consideration the
circumstances under which it was made.[23] Such construction as will sustain and uphold the Will in all its parts must be
adopted.[24]

Subject Codicil provides that the instituted heir is under obligation to deliver One Hundred (100) piculs of sugar yearly to
Marlena Belleza Coscuella. Such obligation is imposed on the instituted heir, Dr. Jorge Rabadilla, his heirs, and their buyer,
lessee, or mortgagee should they sell, lease, mortgage or otherwise negotiate the property involved. The Codicil further
provides that in the event that the obligation to deliver the sugar is not respected, Marlena Belleza Coscuella shall seize
the property and turn it over to the testatrix's near descendants. The non-performance of the said obligation is thus with
the sanction of seizure of the property and reversion thereof to the testatrix's near descendants. Since the said obligation
is clearly imposed by the testatrix, not only on the instituted heir but also on his successors-in-interest, the sanction
imposed by the testatrix in case of non-fulfillment of said obligation should equally apply to the instituted heir and his
successors-in-interest.

Similarly unsustainable is petitioner's submission that by virtue of the amicable settlement, the said obligation imposed
by the Codicil has been assumed by the lessee, and whatever obligation petitioner had become the obligation of the
lessee; that petitioner is deemed to have made a substantial and constructive compliance of his obligation through the
consummated settlement between the lessee and the private respondent, and having consummated a settlement with
the petitioner, the recourse of the private respondent is the fulfillment of the obligation under the amicable settlement
and not the seizure of subject property.

Suffice it to state that a Will is a personal, solemn, revocable and free act by which a person disposes of his property, to
take effect after his death.[25] Since the Will expresses the manner in which a person intends how his properties be
disposed, the wishes and desires of the testator must be strictly followed. Thus, a Will cannot be the subject of a
compromise agreement which would thereby defeat the very purpose of making a Will.

WHEREFORE, the petition is hereby DISMISSED and the decision of the Court of Appeals, dated December 23, 1993, in CA-
G.R. No. CV-35555 AFFIRMED. No pronouncement as to costs

SO ordered.

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.