G.R. No.

201787 September 25, 2013

ANALITA P. INOCENCIO, substituting for RAMON INOCENCIO (Deceased), Petitioner,

vs.
HOSPICIO DE SAN JOSE, Respondent.

DECISION

CARPIO, J.:

The Case

This petition for review seeks to annul and set aside the Decision1 dated 12 January 2012 and the Resolution2dated 9
May 2012 of the Court of Appeals (CA) in CA-G.R. SP No. 117009. The Decision dismissed Analita P. Inocencio’s
(Analita) petition for review and affirmed with modification the Decision 3 dated 21 January 2009 of the Regional Trial
Court of Pasay, Branch 119 (RTC-Pasay). The Resolution denied Analita’s motion for reconsideration.

The Facts

On 1 March 1946, Hospicio de San Jose (HDSJ) leased a parcel of land located in Pasay City to German Inocencio
(German).4 The lease contract was effective for a period of one year, and was renewed for one-year periods several
times. The last written contract was executed on 31 May 1951. 5 Section 6 of the lease contract provides:

Este contrato es intransferible, a menos que para ello se obtenga elconsentimiento escrito del arrendador. (This
contract is nontransferable unless prior consent of the lessor is obtained in writing.) 6

In 1946, German constructed two buildings on the parcel of land7 which he subleased. He also designated his son
Ramon Inocencio (Ramon)to administer the said property.8

On 21 September 1990, German received a letter from HDSJ informing him that the increased rentals shall take
effect in November 1990instead of August 1990, "to give him ample time to make the necessary rental adjustments
with his sublessees."9

German passed away in 1997. Evidence on record shows that Ramon did not notify HDSJ of German’s death. After
German’s passing, Ramon collected the rentals from the sublessees, and paid the rentals to HDSJ, and the taxes on
the property. On 1 March 2001, HDSJ’s property administrator, Five Star Multi-Services, Inc., notified Ramon that
HDSJ is terminating the lease contract effective 31 March 2001:

We acknowledge the fact that Hospicio de San Jose has been accepting the payment of your rentals since the
demise of Mr. German Inocencio. Hence, an implied contract of lease between the two of you exists. However, since
there is no stipulation as to the period of the contract and you are paying a monthly rental to our client, the period for
the lease is on a month-to-month basis (Art. 1687). Thus as of this date, your contract should expire on March 31,
2001.10

Ramon then sent a letter to HDSJ dated 12 March 2001, suggesting that the lease contract be renegotiated for the
welfare of the sublessees occupying the parcel of land.11 On 3 April 2001, HDSJ notified Ramon that the lease
contract shall not be renewed because Ramon has "continually subleased the subject premises to about 20 families
(in addition to a commercial establishment) x x x without the knowledge and consent of the essor,
[HDSJ]."12Thereafter, HDSJ refused to accept Ramon’s tender of payment of rentals.13

On 3 March 2005, HDSJ sent a letter to Ramon: (1) reiterating its stand that the lease contract was terminated
effective 31 March 2001;(2) demanding payment of ₱756,449.26 as unrealized fruits; and (3) giving him 30 days to
vacate the property.14 The sublessees were given written notices to vacate within 30 days.15 HDSJ also posted a
Patalastas stating that it is willing to work out an amicable arrangement with the sublessees, although the latter are
not considered as legal occupants or tenants of the property. 16 Because of this, some of the sublessees refused to
pay rentals to Ramon.17
HDSJ also entered into lease contracts with: (1) Harish Chetandas on 25 May 2005; 18 (2) Enrique Negare on 12 April
2005;19 (3) Lamberto Estefa on 25 May 2005;20 and (4) Sofronio Chavez, Jr. on 21 May 2005.21

On 28 June 2005, HDSJ filed a Complaint before Branch 48 of the Metropolitan Trial Court of Pasay (MeTC-Pasay)
for unlawful detainer against Ramon and his sublessees.22 The complaint alleged that Ramon and his sublessees
have been illegally occupying the leased premises since 31 March 2001. HDSJ sought the following damages:

17.1 Actual damages, in the amount of Php552,195.36, equivalent to the reasonable value of the use and occupation
of the premises from the period of 31 March 2001 until the present; and

17.2 Attorney’s fees in the amount of Php50,000.00, for defendants’ refusal to vacate the property and for compelling
plaintiff to incur expenses to protect its interests. Furthermore, it is clear that defendants acted in gross and evident
bad faith in refusing to satisfy plaintiff’s plainly valid, just, and demandable claim. 23

In his Answer dated 1 August 2005,24 Ramon claimed that:

(1) German was the owner of the two buildings constructed on the leased property as evidenced by the building
permits obtained from the government agencies and the tax declarations covering the buildings;

(2) The Spanish lease contract, which was not translated into English or Filipino should not be admitted as evidence
in view of Section 33 of Rule 133 of the Rules on Evidence;

(3) HDSJ is estopped from raising the issue of non-transferability of the lease contract because it admitted in its letter
to Ramon that there is an existing lease agreement between the parties, even after German’s death:

Your Lease Contract with [HDSJ], which is an implied month-to-month contract, has to be terminate defective March
31, 2001, because by your own admission, you have continuously subleased the subject premises to about 20
families including a commercial establishment).This was done without the knowledge and consent of the lessor,
[HDSJ], and is in violation of the Lease Contract your father signed with them. 25 x x x.

(4) There is no prohibition against subleasing in the lease contract. Thus, under Article 1650 of the Civil Code,
Ramon is permitted to sublease the premises; and

(5) The letters sent by HDSJ to the Inocencios sometime in1990 revealed that the former already knew that the
premises were being subleased.

Ramon also claimed that HDSJ interfered with the contractual relations between him and his sublessees. 26

While the case was being tried before the MeTC-Pasay, Ramon passed away. In an Order dated 23 August 2006, the
MeTC-Pasay allowed the substitution of Ramon by his wife, Analita. 27

The Ruling of the MeTC-Pasay

The MeTC-Pasay ruled in favor of HDSJ. In its Decision dated 22May 2008, the MeTC-Pasay held that the lease
contract could not be transmitted to Ramon as German’s heir in view of the express stipulation found therein. Since
there was "no lease contract between [HDSJ] and Ramon x x x the latter cannot sublease the property." 28 The
dispositive portion of the MeTC-Pasay Decision reads:

Premises considered, judgment is hereby rendered in favor of plaintiff and against defendant as follows:

1. Ordering defendant Ramon Inocencio, substituted by AnalitaP. Inocencio, and Felipe Enar, and all persons
claiming rights under them to immediately vacate the premises located at 61-CSta. Escolastica cor. F.B. Harrison St.,
Pasay City and to peacefully turn over the same to plaintiff;
2. Ordering the defendants to pay plaintiff reasonable compensation of ₱552,195.36 for the use and occupation of the
property from 01 April 2001 to 31 March 2005, and the amount of ₱10,512.00 a month from 01 April 2005 up to the
present, plus twelve per cent 12% interest per annum until the premises shall have been vacated;

3.Ordering the defendants to pay plaintiff the amount of ₱50,000.00 as attorney’s fees and costs of suit. 29

Aggrieved, Analita filed an appeal before the RTC-Pasay.

The Ruling of the RTC-Pasay

On 21 January 2009, the RTC-Pasay dismissed Analita’s appeal and affirmed in toto the decision of the MeTC-
Pasay.30 It held that "even before the termination of the contract, [Ramon] had no right to sublease the said property
due to the intransferability clause in the contract."31

Analita moved for reconsideration, but it was denied in an Order dated 25 October 2010. 32 Analita then filed a petition
for review under Rule 42 of the Rules of Court before the CA.

The Ruling of the CA

The CA affirmed the decision of the RTC-Pasay but modified the award for damages. The dispositive portion of the
Decision reads:

WHEREFORE, foregoing considered, the assailed Decision dated21 January 2009 of the Regional Trial Court,
Branch 119, Pasay City is AFFIRMED with the MODIFICATION that the award for reasonable compensation in
paragraph 2 is pegged at Five Hundred Four Thousand Five Hundred Seventy Six Pesos (₱504,576.00) representing
the accumulated rentals for the period from 01 April 2001 up to 31 March2005 with six percent (6%) interest per
annum, plus the further amount of Ten Thousand Five Hundred Twelve Pesos (₱10,512.00) per month from 01 April
2005 until possession is restored to respondent, also with six percent (6%) interest per annum, up to the finality of
this Decision. Thereafter, the interest shall be twelve percent (12%) until the amount is fully paid. 33

Hence, this petition.

The Issues

The petition questions the following rulings made by the CA:

(1) The sublease contracts were invalid;

(2) There was no tortious interference on the part of HDSJ;

(3) Ramon did not own the buildings erected on the leased premises;

(4) HDSJ is entitled to reasonable compensation in the amount of ₱504,576.00 and attorney’s fees; and

(5) HDSJ’s action for unlawful detainer was not barred by prescription.

The Ruling of this Court

Article 1311 of the Civil Code provides:

Art. 1311. Contracts take effect only between the parties, their assigns and heirs, except in case where the rights and
obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law. The
heir is not liable beyond the value of the property he received from the decedent.

xxxx
We have previously ruled that lease contracts, by their nature, are not personal. The general rule, therefore, is lease
contracts survive the death of the parties and continue to bind the heirs except if the contract states otherwise.34 In
Sui Man Hui Chan v. Court of Appeals,35 we held that:

A lease contract is not essentially personal in character. Thus, the rights and obligations therein are transmissible to
the heirs. The general rule, therefore, is that heirs are bound by contracts entered into by their predecessors-in-
interest except when the rights and obligations arising therefrom are not transmissible by (1) their nature, (2)
stipulation or (3) provision of law. In the subject Contract of Lease, not only were there no stipulations prohibiting any
transmission of rights, but its very terms and conditions explicitly provided for the transmission of the rights of the
lessor and of the lessee to their respective heirs and successors. The contract is the law between the parties. The
death of a party does not excuse nonperformance of a contract, which involves a property right, and the rights and
obligations thereunder pass to the successors or representatives of the deceased. Similarly, nonperformance is not
excused by the death of the party when the other party has a property interest in the subject matter of the contract.

Section 6 of the lease contract provides that "this contract is nontransferable unless prior consent of the lessor is
obtained in writing."36 Section 6 refers to transfers inter vivos and not transmissions mortis causa. What Section 6
seeks to avoid is for the lessee to substitute a third party in place of the lessee without the lessor’s consent. This
merely reiterates what Article 1649 of the Civil Code provides:

Art. 1649. The lessee cannot assign the lease without the consent of the lessor, unless there is a stipulation to the
contrary.

In any case, HDSJ also acknowledged that Ramon is its month-to-month lessee. Thus, the death of German did not
terminate the lease contract executed with HDSJ, but instead continued with Ramon as the lessee. HDSJ recognized
Ramon as its lessee in a letter dated 1 March 2001:

We acknowledge the fact that Hospicio de San Jose has been accepting the payment of your rentals since the
demise of Mr. [German] Inocencio. Hence, an implied contract of lease between the two of you exists. However,
since there is no stipulation as to the period of the contract and you are paying a monthly rental to our client, the
period for the lease is on a month-to-month basis (Art. 1687). Thus as of this date, your contract should expire on
March 31, 2001.37

Section 6 of the lease contract requires written consent of the lessor before the lease may be assigned or transferred.
In Tamio v. Tecson,38 we explained the nature of an assignment of lease:

In the case of cession or assignment of lease rights on real property, there is a novation by the substitution of the
person of one of the parties — the lessee. The personality of the lessee, who dissociates from the lease, disappears;
only two persons remain in the juridical relation — the lessor and the assignee who is converted into the new
lessee.39

Assignment or transfer of lease, which is covered by Article 1649 of the Civil Code, is different from a sublease
arrangement, which is governed by Article 1650 of the same Code. In a sublease, the lessee becomes in turn a
lessor to a sublessee. The sublessee then becomes liable to pay rentals to the original lessee. However, the juridical
relation between the lessor and lessee is not dissolved. The parties continue to be bound by the original lease
contract. Thus, in a sublease arrangement, there are at least three parties and two distinct juridical relations.40

Ramon had a right to sublease the premises since the lease contract did not contain any stipulation forbidding
subleasing. Article 1650 of the Civil Code states:

Art. 1650. When in the contract of lease of things there is no express prohibition, the lessee may sublet the thing
leased, in whole or in part, without prejudice to his responsibility for the performance of the contract toward the lessor.

Therefore, we hold that the sublease contracts executed by Ramon were valid.

We also find that HDSJ did not commit tortious interference. Article1314 of the Civil Code states:

Art. 1314. Any third person who induces another to violate his contract shall be liable for damages to the other
contracting party.
As correctly pointed out by the Inocencios, tortious interference has the following elements: (1) existence of a valid
contract; (2) knowledge on the part of the third person of the existence of the contract; and (3) interference of the third
person without legal justification or excuse.41

The facts of the instant case show that there were valid sublease contracts which were known to HDSJ. However, we
find that the third element is lacking in this case.

In So Ping Bun v. Court of Appeals,42 we held that there was no tortious interference if the intrusion was impelled by
purely economic motives. In So Ping Bun, we explained that:

Authorities debate on whether interference may be justified where the defendant acts for the sole purpose of
furthering his own financial or economic interest. One view is that, as a general rule, justification for interfering with
the business relations of another exists where the actor’s motive is to benefit himself. Such justification does not exist
where his sole motive is to cause harm to the other. Added to this, some authorities believe that it is not necessary
that the interferer’s interest outweighs that of the party whose rights are invaded, and that an individual acts under an
economic interest that is substantial, not merely de minimis, such that wrongful and malicious motives are negatived,
for he acts in self- protection. Moreover, justification for protecting one’s financial position should not be made to
depend on a comparison of his economic interest in the subject matter with that of others. It is sufficient if the impetus
of his conduct lies in a proper business interest rather than in wrongful motives. 43

The evidence shows that HDSJ entered into agreements with Ramon’s former sublessees for purely economic
reasons (payment of rentals). HDSJ had a right to collect the rentals from the sublessees upon termination of the
lease contract. It does not appear that HDSJ was motivated by spite or ill will towards the Inocencios.

The Inocencios claim ownership over the buildings since these are separate and distinct from the land on which they
are erected. Thus, as owners of the buildings, they have a right to lease the buildings to third persons, even after
termination of the lease contract with HDSJ. To bolster their claim of ownership, the Inocencios presented the
following evidence: (1) the building permit;44

(2) the receipt for the payment of the permit fee;45 (3) the Tax Declarations; and (4) the proof of payment of
insurance.46 The Inocencios also claimed that:

as the Inocencios owned the Subject Buildings, it is respectfully submitted, and it should be clear that when they
entered into lease contracts with tenants for the lease of portions of the said buildings, these contracts were
independent contracts of lease over their own building and not sub-leases of the parcel of land which they leased
from Respondent. It is Respondent’s inaccurate characterization of the leasing by the Inocencios of portions of their
own building that has obfuscated the legal issues in this case and partially led to the incorrect decisions of the courts
a quo.47

We do not agree. In Duellome v. Gotico48 and Caleon v. Agus Development Corporation,49

we held that the lease of a building includes the lease of the lot and consequently, the rentals of the building include
the rentals of the lot. As correctly pointed out by HDSJ in its Comment:50

x x x When the Inocencios leased the buildings to third parties, they also "leased" to the third parties the plot of land
on which the buildings stood — either by implied transfer of the lease covering the plot of the land, or by sublease.
Either way, x x x the Inocencios themselves must have a valid lease contract with [HDSJ] over the land. However,
when the lease contract x x x with HDSJ ended on 31March 2001, Ramon lost his status as lessee of the land, and
therefore, had no authority to transfer the lease or sublease the land. x x x. 51

However, we find that the CA erred in not applying Article 1678 of the Civil Code which provides:

Art. 1678. If the lessee makes, in good faith, useful improvements which are suitable to the use for which the lease is
intended, without altering the form or substance of the property leased, the lessor upon the termination of the lease
shall pay the lessee one-half of the value of the improvements at that time. Should the lessor refuse to reimburse said
amount, the lessee may remove the improvements, even though the principal thing may suffer damage thereby. He
shall not, however, cause any more impairment upon the property leased than is necessary.
With regard to ornamental expenses, the lessee shall not be entitled to any reimbursement, but he may remove the
ornamental objects, provided no damage is caused to the principal thing, and the lessor does not choose to retain
them by paying their value at the time the lease is extinguished.

The foregoing provision applies if the improvements were: (1) introduced in good faith; (2) useful; and (3) suitable to
the use for which the lease is intended, without altering the form and substance. 52

We find that the aforementioned requisites are satisfied in this case. The buildings were constructed before
1âwphi1

German’s demise, during the subsistence of a valid contract of lease. It does not appear that HDSJ prohibited
German from constructing the buildings. Thus, HDSJ should have reimbursed German (or his estate) half of the value
of the improvements as of 2001. If HDSJ is not willing to reimburse the Inocencios, then the latter should be allowed
to demolish the buildings.

We also find that the action for unlawful detainer was not barred by prescription. Section 1, Rule 70 of the Rules of
Court provides that actions for unlawful detainer must be filed "within one (1) year after such unlawful deprivation or
withholding of possession." In interpreting the foregoing provision, this Court, in Republic v. Sunvar Realty
Development Corporation,53 held that:

The one-year period to file an unlawful detainer case is not counted from the expiration of the lease contract on 31
December 2002. Indeed, the last demand for petitioners to vacate is the reckoning period for determining the one-
year period in an action for unlawful detainer. "Such one year period should be counted from the date of plaintiff’s last
demand on defendant to vacate the real property, because only upon the lapse of that period does the possession
become unlawful."54

HDSJ’s last demand was made on 3 March 2005, and it filed the complaint for unlawful detainer on 28 June 2005.
Thus, the complaint was filed within the period provided under the Rules of Court.

WHEREFORE, the petition is PARTLY GRANTED. The Decision dated 12 January 2012 of the Court of Appeals in
CA-G.R. SP No. 117009 is AFFIRMED with modification. The case is hereby REMANDED to the Metropolitan Trial
Court of Pasay, Branch 48, for determination of the value or the improvements to be paid to the lnocencios, if
Hospicio de San Jose desires to keep the improvements. Otherwise, the Inocencios shall be allowed to demolish the
buildings at their expense.

SO ORDERED.

G.R. No. 118248 April 5, 2000

DKC HOLDINGS CORPORATION,petitioner,

vs.
COURT OF APPEALS, VICTOR U. BARTOLOME and REGISTER OF DEEDS FOR METRO MANILA, DISTRICT
III, respondents.

YNARES-SANTIAGO, J.:

This is a petition for review on certiorari seeking the reversal of the December 5, 1994 Decision of the Court of
Appeals in CA-G.R. CV No. 40849 entitled "DKC Holdings Corporation vs. Victor U. Bartolome, et al.", affirming in
1

toto the January 4, 1993 Decision of the Regional Trial Court of Valenzuela, Branch 172, which dismissed Civil Case
2

No. 3337-V-90 and ordered petitioner to pay P30,000.00 as attorney's fees.

The subject of the controversy is a 14,021 square meter parcel of land located in Malinta, Valenzuela, Metro Manila
which was originally owned by private respondent Victor U. Bartolome's deceased mother, Encarnacion Bartolome,
under Transfer Certificate of Title No. B-37615 of the Register of Deeds of Metro Manila, District III. This lot was in
front of one of the textile plants of petitioner and, as such, was seen by the latter as a potential warehouse site.
On March 16, 1988, petitioner entered into a Contract of Lease with Option to Buy with Encarnacion Bartolome,
whereby petitioner was given the option to lease or lease with purchase the subject land, which option must be
exercised within a period of two years counted from the signing of the Contract. In turn, petitioner undertook to pay
P3,000.00 a month as consideration for the reservation of its option. Within the two-year period, petitioner shall serve
formal written notice upon the lessor Encarnacion Bartolome of its desire to exercise its option. The contract also
provided that in case petitioner chose to lease the property, it may take actual possession of the premises. In such an
event, the lease shall be for a period of six years, renewable for another six years, and the monthly rental fee shall be
P15,000.00 for the first six years and P18,000.00 for the next six years, in case of renewal.

Petitioner regularly paid the monthly P3,000.00 provided for by the Contract to Encarnacion until her death in January
1990. Thereafter, petitioner coursed its payment to private respondent Victor Bartolome, being the sole heir of
Encarnacion. Victor, however, refused to accept these payments.

Meanwhile, on January 10, 1990, Victor executed an Affidavit of Self-Adjudication over all the properties of
Encarnacion, including the subject lot. Accordingly, respondent Register of Deeds cancelled Transfer Certificate of
Title No. B-37615 and issued Transfer Certificate of Title No. V-14249 in the name of Victor Bartolome.

On March 14, 1990, petitioner served upon Victor, via registered mail, notice that it was exercising its option to lease
the property, tendering the amount of P15,000.00 as rent for the month of March. Again, Victor refused to accept the
tendered rental fee and to surrender possession of the property to petitioner.

Petitioner thus opened Savings Account No. 1-04-02558-I-1 with the China Banking Corporation, Cubao Branch, in
the name of Victor Bartolome and deposited therein the P15,000.00 rental fee for March as well as P6,000.00
reservation fees for the months of February and March.

Petitioner also tried to register and annotate the Contract on the title of Victor to the property. Although respondent
Register of Deeds accepted the required fees, he nevertheless refused to register or annotate the same or even enter
it in the day book or primary register.
1âwphi1.nêt

Thus, on April 23, 1990, petitioner filed a complaint for specific performance and damages against Victor and the
Register of Deeds, docketed as Civil Case No. 3337-V-90 which was raffled off to Branch 171 of the Regional Trial
3

Court of Valenzuela. Petitioner prayed for the surrender and delivery of possession of the subject land in accordance
with the Contract terms; the surrender of title for registration and annotation thereon of the Contract; and the payment
of P500,000.00 as actual damages, P500,000.00 as moral damages, P500,000.00 as exemplary damages and
P300,000.00 as attorney's fees.

Meanwhile, on May 8, 1990, a Motion for Intervention with Motion to Dismiss was filed by one Andres Lanozo, who
4

claimed that he was and has been a tenant-tiller of the subject property, which was agricultural riceland, for forty-five
years. He questioned the jurisdiction of the lower court over the property and invoked the Comprehensive Agrarian
Reform Law to protect his rights that would be affected by the dispute between the original parties to the case.

On May 18, 1990, the lower court issued an Order referring the case to the Department of Agrarian Reform for
5

preliminary determination and certification as to whether it was proper for trial by said court.

On July 4, 1990, the lower court issued another Order referring the case to Branch 172 of the RTC of Valenzuela
6

which was designated to hear cases involving agrarian land, after the Department of Agrarian Reform issued a letter-
certification stating that referral to it for preliminary determination is no longer required.

On July 16, 1990, the lower court issued an Order denying the Motion to Intervene, holding that Lanozo's rights may
7

well be ventilated in another proceeding in due time.

After trial on the merits, the RTC of Valenzuela, Branch 172 rendered its Decision on January 4, 1993, dismissing the
Complaint and ordering petitioner to pay Victor P30,000.00 as attorney's fees. On appeal to the CA, the Decision was
affirmed in toto.

Hence, the instant Petition assigning the following errors:

(A)
 FIRST ASSIGNMENT OF ERROR

THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THE PROVISION ON THE NOTICE
TO EXERCISE OPTION WAS NOT TRANSMISSIBLE.

(B)

SECOND ASSIGNMENT OF ERROR

THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THE NOTICE OF OPTION MUST BE
SERVED BY DKC UPON ENCARNACION BARTOLOME PERSONALLY.

(C)

THIRD ASSIGNMENT OF ERROR

THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THE CONTRACT WAS ONE-SIDED
AND ONEROUS IN FAVOR OF DKC.

(D)

FOURTH ASSIGNMENT OF ERROR

THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THE EXISTENCE OF A

REGISTERED TENANCY WAS FATAL TO THE VALIDITY OF THE CONTRACT.

(E)

FIFTH ASSIGNMENT OF ERROR

THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT PLAINTIFF-APPELLANT WAS

LIABLE TO DEFENDANT-APPELLEE FOR ATTORNEY'S FEES. 8

The issue to be resolved in this case is whether or not the Contract of Lease with Option to Buy entered into by the
late Encarnacion Bartolome with petitioner was terminated upon her death or whether it binds her sole heir, Victor,
even after her demise.

Both the lower court and the Court of Appeals held that the said contract was terminated upon the death of
Encarnacion Bartolome and did not bind Victor because he was not a party thereto.

Art. 1311 of the Civil Code provides, as follows —

Art. 1311. Contracts take effect only between the parties, their assigns and heirs, except in case where the
rights and obligations arising from the contract are not transmissible by their nature, or by stipulation or by
provision of law. The heir is not liable beyond the value of the property he received from the decedent.

xxx xxx xxx

The general rule, therefore, is that heirs are bound by contracts entered into by their predecessors-in-interest except
when the rights and obligations arising therefrom are not transmissible by (1) their nature, (2) stipulation or (3)
provision of law.

In the case at bar, there is neither contractual stipulation nor legal provision making the rights and obligations under
the contract intransmissible. More importantly, the nature of the rights and obligations therein are, by their nature,
transmissible.
The nature of intransmissible rights as explained by Arturo Tolentino, an eminent civilist, is as follows:

Among contracts which are intransmissible are those which are purely personal, either by provision of law,
such as in cases of partnerships and agency, or by the very nature of the obligations arising therefrom, such
as those requiring special personal qualifications of the obligor. It may also be stated that contracts for the
payment of money debts are not transmitted to the heirs of a party, but constitute a charge against his
estate. Thus, where the client in a contract for professional services of a lawyer died, leaving minor heirs,
and the lawyer, instead of presenting his claim for professional services under the contract to the probate
court, substituted the minors as parties for his client, it was held that the contract could not be enforced
against the minors; the lawyer was limited to a recovery on the basis of quantum meruit. 9

In American jurisprudence, "(W)here acts stipulated in a contract require the exercise of special knowledge, genius,
skill, taste, ability, experience, judgment, discretion, integrity, or other personal qualification of one or both parties, the
agreement is of a personal nature, and terminates on the death of the party who is required to render such service." 10

It has also been held that a good measure for determining whether a contract terminates upon the death of one of the
parties is whether it is of such a character that it may be performed by the promissor's personal representative.
Contracts to perform personal acts which cannot be as well performed by others are discharged by the death of the
promissor. Conversely, where the service or act is of such a character that it may as well be performed by another, or
where the contract, by its terms, shows that performance by others was contemplated, death does not terminate the
contract or excuse nonperformance. 11

In the case at bar, there is no personal act required from the late Encarnacion Bartolome. Rather, the obligation of
Encarnacion in the contract to deliver possession of the subject property to petitioner upon the exercise by the latter
of its option to lease the same may very well be performed by her heir Victor.

As early as 1903, it was held that "(H)e who contracts does so for himself and his heirs." In 1952, it was ruled that if
12

the predecessor was duty-bound to reconvey land to another, and at his death the reconveyance had not been made,
the heirs can be compelled to execute the proper deed for reconveyance. This was grounded upon the principle that
heirs cannot escape the legal consequence of a transaction entered into by their predecessor-in-interest because
they have inherited the property subject to the liability affecting their common ancestor. 13

It is futile for Victor to insist that he is not a party to the contract because of the clear provision of Article 1311 of the
Civil Code. Indeed, being an heir of Encarnacion, there is privity of interest between him and his deceased mother.
He only succeeds to what rights his mother had and what is valid and binding against her is also valid and binding as
against him. This is clear from Parañaque Kings Enterprises vs. Court of Appeals, where this Court rejected a
14 15

similar defense —

With respect to the contention of respondent Raymundo that he is not privy to the lease contract, not being
the lessor nor the lessee referred to therein, he could thus not have violated its provisions, but he is
nevertheless a proper party. Clearly, he stepped into the shoes of the owner-lessor of the land as, by virtue
of his purchase, he assumed all the obligations of the lessor under the lease contract. Moreover, he
received benefits in the form of rental payments. Furthermore, the complaint, as well as the petition, prayed
for the annulment of the sale of the properties to him. Both pleadings also alleged collusion between him
and respondent Santos which defeated the exercise by petitioner of its right of first refusal.

In order then to accord complete relief to petitioner, respondent Raymundo was a necessary, if not
indispensable, party to the case. A favorable judgment for the petitioner will necessarily affect the rights of
respondent Raymundo as the buyer of the property over which petitioner would like to assert its right of first
option to buy.

In the case at bar, the subject matter of the contract is likewise a lease, which is a property right. The death of a party
does not excuse nonperformance of a contract which involves a property right, and the rights and obligations
thereunder pass to the personal representatives of the deceased. Similarly, nonperformance is not excused by the
death of the party when the other party has a property interest in the subject matter of the contract. 16

Under both Article 1311 of the Civil Code and jurisprudence, therefore, Victor is bound by the subject Contract of
Lease with Option to Buy.
That being resolved, we now rule on the issue of whether petitioner had complied with its obligations under the
contract and with the requisites to exercise its option. The payment by petitioner of the reservation fees during the
two-year period within which it had the option to lease or purchase the property is not disputed. In fact, the payment
of such reservation fees, except those for February and March, 1990 were admitted by Victor. This is clear from the
17

transcripts, to wit —

ATTY. MOJADO:

One request, Your Honor. The last payment which was allegedly made in January 1990 just indicate in that
stipulation that it was issued November of 1989 and postdated January 1990 and then we will admit all.

COURT:

All reservation fee?

ATTY. MOJADO:

Yes, Your Honor.

COURT:

All as part of the lease?

ATTY. MOJADO:

Reservation fee, Your Honor. There was no payment with respect to payment of rentals. 18

Petitioner also paid the P15,000.00 monthly rental fee on the subject property by depositing the same in China Bank
Savings Account No. 1-04-02558-I-1, in the name of Victor as the sole heir of Encarnacion Bartolome, for the
19

months of March to July 30, 1990, or a total of five (5) months, despite the refusal of Victor to turn over the subject
property.20

Likewise, petitioner complied with its duty to inform the other party of its intention to exercise its option to lease
through its letter dated Match 12, 1990, well within the two-year period for it to exercise its option. Considering that
21

at that time Encarnacion Bartolome had already passed away, it was legitimate for petitioner to have addressed its
letter to her heir.
1âwphi1

It appears, therefore, that the exercise by petitioner of its option to lease the subject property was made in
accordance with the contractual provisions. Concomitantly, private respondent Victor Bartolome has the obligation to
surrender possession of and lease the premises to petitioner for a period of six (6) years, pursuant to the Contract of
Lease with Option to Buy.

Coming now to the issue of tenancy, we find that this is not for this Court to pass upon in the present petition. We
note that the Motion to Intervene and to Dismiss of the alleged tenant, Andres Lanozo, was denied by the lower court
and that such denial was never made the subject of an appeal. As the lower court stated in its Order, the alleged right
of the tenant may well be ventilated in another proceeding in due time.

WHEREFORE, in view of the foregoing, the instant Petition for Review is GRANTED. The Decision of the Court of
Appeals in CA-G.R. CV No. 40849 and that of the Regional Trial Court of Valenzuela in Civil Case No. 3337-V-90 are
both SET ASIDE and a new one rendered ordering private respondent Victor Bartolome to:

(a) surrender and deliver possession of that parcel of land covered by Transfer Certificate of Title No. V-
14249 by way of lease to petitioner and to perform all obligations of his predecessor-in-interest, Encarnacion
Bartolome, under the subject Contract of Lease with Option to Buy;
 (b) surrender and deliver his copy of Transfer Certificate of Title No. V-14249 to respondent Register of
Deeds for registration and annotation thereon of the subject Contract of Lease with Option to Buy;

(c) pay costs of suit.

Respondent Register of Deeds is, accordingly, ordered to register and annotate the subject Contract of Lease with
Option to Buy at the back of Transfer Certificate of Title No. V-14249 upon submission by petitioner of a copy thereof
to his office.

SO ORDERED. 1âw phi1.nêt

G.R. Nos. 140371-72 November 27, 2006

DY YIENG SEANGIO, BARBARA D. SEANGIO and VIRGINIA D. SEANGIO, Petitioners,

vs.
HON. AMOR A. REYES, in her capacity as Presiding Judge, Regional Trial Court, National Capital Judicial
Region, Branch 21, Manila, ALFREDO D. SEANGIO, ALBERTO D. SEANGIO, ELISA D. SEANGIO-SANTOS,
VICTOR D. SEANGIO, ALFONSO D. SEANGIO, SHIRLEY D. SEANGIO-LIM, BETTY D. SEANGIO-OBAS and
JAMES D. SEANGIO, Respondents.

DECISION

AZCUNA, J.:

This is a petition for certiorari1 with application for the issuance of a writ of preliminary injunction and/or temporary
restraining order seeking the nullification of the orders, dated August 10, 1999 and October 14, 1999, of the Regional
Trial Court of Manila, Branch 21 (the RTC), dismissing the petition for probate on the ground of preterition, in the
consolidated cases, docketed as SP. Proc. No. 98-90870 and SP. Proc. No. 99-93396, and entitled, "In the Matter of
the Intestate Estate of Segundo C. Seangio v. Alfredo D. Seangio, et al." and "In the Matter of the Probate of the Will
of Segundo C. Seangio v. Dy Yieng Seangio, Barbara D. Seangio and Virginia Seangio."

The facts of the cases are as follows:

On September 21, 1988, private respondents filed a petition for the settlement of the intestate estate of the late
Segundo Seangio, docketed as Sp. Proc. No. 98–90870 of the RTC, and praying for the appointment of private
respondent Elisa D. Seangio–Santos as special administrator and guardian ad litem of petitioner Dy Yieng Seangio.

Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed the petition. They contended that: 1) Dy
Yieng is still very healthy and in full command of her faculties; 2) the deceased Segundo executed a general power of
attorney in favor of Virginia giving her the power to manage and exercise control and supervision over his business in
the Philippines; 3) Virginia is the most competent and qualified to serve as the administrator of the estate of Segundo
because she is a certified public accountant; and, 4) Segundo left a holographic will, dated September 20, 1995,
disinheriting one of the private respondents, Alfredo Seangio, for cause. In view of the purported holographic will,
petitioners averred that in the event the decedent is found to have left a will, the intestate proceedings are to be
automatically suspended and replaced by the proceedings for the probate of the will.

On April 7, 1999, a petition for the probate of the holographic will of Segundo, docketed as SP. Proc. No. 99–93396,
was filed by petitioners before the RTC. They likewise reiterated that the probate proceedings should take
precedence over SP. Proc. No. 98–90870 because testate proceedings take precedence and enjoy priority over
intestate proceedings.2

The document that petitioners refer to as Segundo’s holographic will is quoted, as follows:

Kasulatan sa pag-aalis ng mana

Tantunin ng sinuman

Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A Flores St., Ermita, Manila at nagtatalay ng
maiwanag na pag-iisip at disposisyon ay tahasan at hayagang inaalisan ko ng lahat at anumang mana ang paganay
kong anak na si Alfredo Seangio dahil siya ay naging lapastangan sa akin at isan beses siya ng sasalita ng masama
harapan ko at mga kapatid niya na si Virginia Seangio labis kong kinasama ng loob ko at sasabe rin ni Alfredo sa
akin na ako nasa ibabaw gayon gunit daratin ang araw na ako nasa ilalim siya at siya nasa ibabaw.

Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin pagalan para makapagutang na kuarta siya at kanya
asawa na si Merna de los Reyes sa China Bangking Corporation na millon pesos at hindi ng babayad at hindi ng
babayad ito ay nagdulot sa aking ng malaking kahihiya sa mga may-ari at stockholders ng China Banking.

At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na mga custome[r] ng Travel Center of the
Philippines na pinagasiwaan ko at ng anak ko si Virginia.

Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak ko at hayanan kong inaalisan ng lahat at anoman
mana na si Alfredo at si Alfredo Seangio ay hindi ko siya anak at hindi siya makoha mana.

Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng Manila sa harap ng tatlong saksi. 3

(signed)

Segundo Seangio

Nilagdaan sa harap namin

(signed)

Dy Yieng Seangio (signed)

Unang Saksi ikalawang saksi

(signed)

ikatlong saksi

On May 29, 1999, upon petitioners’ motion, SP. Proc. No. 98–90870 and SP. Proc. No. 99–93396 were
consolidated.4

On July 1, 1999, private respondents moved for the dismissal of the probate proceedings 5 primarily on the ground
that the document purporting to be the holographic will of Segundo does not contain any disposition of the estate of
the deceased and thus does not meet the definition of a will under Article 783 of the Civil Code. According to private
respondents, the will only shows an alleged act of disinheritance by the decedent of his eldest son, Alfredo, and
nothing else; that all other compulsory heirs were not named nor instituted as heir, devisee or legatee, hence, there is
preterition which would result to intestacy. Such being the case, private respondents maintained that while
procedurally the court is called upon to rule only on the extrinsic validity of the will, it is not barred from delving into
the intrinsic validity of the same, and ordering the dismissal of the petition for probate when on the face of the will it is
clear that it contains no testamentary disposition of the property of the decedent.

Petitioners filed their opposition to the motion to dismiss contending that: 1) generally, the authority of the probate
court is limited only to a determination of the extrinsic validity of the will; 2) private respondents question the intrinsic
and not the extrinsic validity of the will; 3) disinheritance constitutes a disposition of the estate of a decedent; and, 4)
the rule on preterition does not apply because Segundo’s will does not constitute a universal heir or heirs to the
exclusion of one or more compulsory heirs.6

On August 10, 1999, the RTC issued its assailed order, dismissing the petition for probate proceedings:
A perusal of the document termed as "will" by oppositors/petitioners Dy Yieng Seangio, et al., clearly shows that there
is preterition, as the only heirs mentioned thereat are Alfredo and Virginia. [T]he other heirs being omitted, Article 854
of the New Civil Code thus applies. However, insofar as the widow Dy Yieng Seangio is concerned, Article 854 does
not apply, she not being a compulsory heir in the direct line.

As such, this Court is bound to dismiss this petition, for to do otherwise would amount to an abuse of discretion. The
Supreme Court in the case of Acain v. Intermediate Appellate Court [155 SCRA 100 (1987)] has made its position
clear: "for … 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 … 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(underscoring
supplied).

WHEREFORE, premises considered, the Motion to Suspend Proceedings is hereby DENIED for lack of merit.
Special Proceedings No. 99–93396 is hereby DISMISSED without pronouncement as to costs.

SO ORDERED.7

Petitioners’ motion for reconsideration was denied by the RTC in its order dated October 14, 1999.

Petitioners contend that:

THE RESPONDENT JUDGE ACTED IN EXCESS OF HER JURISDICTION OR WITH GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION AND DECIDED A QUESTION OF LAW
NOT IN ACCORD WITH LAW AND JURISPRUDENCE IN ISSUING THE QUESTIONED ORDERS, DATED 10
AUGUST 1999 AND 14 OCTOBER 1999 (ATTACHMENTS "A" AND "B" HEREOF) CONSIDERING THAT:

THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING WITH SECTIONS 3 AND 4 OF RULE 76 OF THE
RULES OF COURT ON THE PROPER PROCEDURE FOR SETTING THE CASE FOR INITIAL HEARING FOR THE
ESTABLISHMENT OF THE JURISDICTIONAL FACTS, DISMISSED THE TESTATE CASE ON THE ALLEGED
GROUND THAT THE TESTATOR’S WILL IS VOID ALLEGEDLY BECAUSE OF THE EXISTENCE OF
PRETERITION, WHICH GOES INTO THE INTRINSIC VALIDITY OF THE WILL, DESPITE THE FACT THAT IT IS A
SETTLED RULE THAT THE AUTHORITY OF PROBATE COURTS IS LIMITED ONLY TO A DETERMINATION OF
THE EXTRINSIC VALIDITY OF THE WILL, I.E., THE DUE EXECUTION THEREOF, THE TESTATOR’S
TESTAMENTARY CAPACITY AND THE COMPLIANCE WITH THE REQUISITES OR SOLEMNITIES PRESCRIBED
BY LAW;

II

EVEN ASSUMING ARGUENDO THAT THE RESPONDENT JUDGE HAS THE AUTHORITY TO RULE UPON THE
INTRINSIC VALIDITY OF THE WILL OF THE TESTATOR, IT IS INDUBITABLE FROM THE FACE OF THE
TESTATOR’S WILL THAT NO PRETERITON EXISTS AND THAT THE WILL IS BOTH INTRINSICALLY AND
EXTRINSICALLY VALID; AND,

III

RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE PROCEEDINGS IN THE INTESTATE CASE
CONSIDERING THAT IT IS A SETTLED RULE THAT TESTATE PROCEEDINGS TAKE PRECEDENCE OVER
INTESTATE PROCEEDINGS.

Petitioners argue, as follows:

First, respondent judge did not comply with Sections 3 and 4 of Rule 76 of the Rules of Court which respectively
mandate the court to: a) fix the time and place for proving the will when all concerned may appear to contest the
allowance thereof, and cause notice of such time and place to be published three weeks successively previous to the
appointed time in a newspaper of general circulation; and, b) cause the mailing of said notice to the heirs, legatees
and devisees of the testator Segundo;

Second, the holographic will does not contain any institution of an heir, but rather, as its title clearly states, Kasulatan
ng Pag-Aalis ng Mana, simply contains a disinheritance of a compulsory heir. Thus, there is no preterition in the
decedent’s will and the holographic will on its face is not intrinsically void;

Third, the testator intended all his compulsory heirs, petitioners and private respondents alike, with the sole exception
of Alfredo, to inherit his estate. None of the compulsory heirs in the direct line of Segundo were preterited in the
holographic will since there was no institution of an heir;

Fourth, inasmuch as it clearly appears from the face of the holographic will that it is both intrinsically and extrinsically
valid, respondent judge was mandated to proceed with the hearing of the testate case; and,

Lastly, the continuation of the proceedings in the intestate case will work injustice to petitioners, and will render
nugatory the disinheritance of Alfredo.

The purported holographic will of Segundo that was presented by petitioners was dated, signed and written by him in
his own handwriting. Except on the ground of preterition, private respondents did not raise any issue as regards the
authenticity of the document.

The document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably showed Segundo’s intention of excluding his
eldest son, Alfredo, as an heir to his estate for the reasons that he cited therein. In effect, Alfredo was disinherited by
Segundo.

For disinheritance to be valid, Article 916 of the Civil Code requires that the same must be effected through a will
wherein the legal cause therefor shall be specified. With regard to the reasons for the disinheritance that were stated
by Segundo in his document, the Court believes that the incidents, taken as a whole, can be considered a form of
maltreatment of Segundo by his son, Alfredo, and that the matter presents a sufficient cause for the disinheritance of
a child or descendant under Article 919 of the Civil Code:

Article 919. The following shall be sufficient causes for the disinheritance of children and descendants, legitimate as
well as illegitimate:

(1) When a child or descendant has been found guilty of an attempt against the life of the testator, his or her
spouse, descendants, or ascendants;

(2) When a child or descendant has accused the testator of a crime for which the law prescribes
imprisonment for six years or more, if the accusation has been found groundless;

(3) When a child or descendant has been convicted of adultery or concubinage with the spouse of the
testator;

(4) When a child or descendant by fraud, violence, intimidation, or undue influence causes the testator to
make a will or to change one already made;

(5) A refusal without justifiable cause to support the parents or ascendant who disinherit such child or
descendant;

(6) Maltreatment of the testator by word or deed, by the child or descendant;8

(7) When a child or descendant leads a dishonorable or disgraceful life;

(8) Conviction of a crime which carries with it the penalty of civil interdiction.
Now, the critical issue to be determined is whether the document executed by Segundo can be considered as a
holographic will.

A holographic will, as provided under Article 810 of the Civil Code, must be entirely written, dated, and signed by the
hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not
be witnessed.

Segundo’s document, although it may initially come across as a mere disinheritance instrument, conforms to the
formalities of a holographic will prescribed by law. It is written, dated and signed by the hand of Segundo himself. An
intent to dispose mortis causa[9] can be clearly deduced from the terms of the instrument, and while it does not make
an affirmative disposition of the latter’s property, the disinheritance of Alfredo, nonetheless, is an act of disposition in
itself. In other words, the disinheritance results in the disposition of the property of the testator Segundo in favor of
those who would succeed in the absence of Alfredo.10

Moreover, it is a fundamental principle that the intent or the will of the testator, expressed in the form and within the
limits prescribed by law, must be recognized as the supreme law in succession. All rules of construction are designed
to ascertain and give effect to that intention. It is only when the intention of the testator is contrary to law, morals, or
public policy that it cannot be given effect.11

Holographic wills, therefore, being usually prepared by one who is not learned in the law, as illustrated in the present
case, should be construed more liberally than the ones drawn by an expert, taking into account the circumstances
surrounding the execution of the instrument and the intention of the testator. 12 In this regard, the Court is convinced
that the document, even if captioned as Kasulatan ng Pag-Aalis ng Mana, was intended by Segundo to be his last
testamentary act and was executed by him in accordance with law in the form of a holographic will. Unless the will is
probated,13 the disinheritance cannot be given effect.14

With regard to the issue on preterition,15 the Court believes that the compulsory heirs in the direct line were not
preterited in the will. It was, in the Court’s opinion, Segundo’s last expression to bequeath his estate to all his
compulsory heirs, with the sole exception of Alfredo. Also, Segundo did not institute an heir16 to the exclusion of his
other compulsory heirs. The mere mention of the name of one of the petitioners, Virginia, in the document did not
operate to institute her as the universal heir. Her name was included plainly as a witness to the altercation between
Segundo and his son, Alfredo. 1âwphi 1

Considering that the questioned document is Segundo’s holographic will, and that the law favors testacy over
intestacy, the probate of the will cannot be dispensed with. Article 838 of the Civil Code provides that no will shall
pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. Thus,
unless the will is probated, the right of a person to dispose of his property may be rendered nugatory. 17

In view of the foregoing, the trial court, therefore, should have allowed the holographic will to be probated. It is settled
that testate proceedings for the settlement of the estate of the decedent take precedence over intestate proceedings
for the same purpose.18

WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court of Manila, Branch 21, dated August
10, 1999 and October 14, 1999, are set aside. Respondent judge is directed to reinstate and hear SP Proc. No. 99-
93396 for the allowance of the holographic will of Segundo Seangio. The intestate case or SP. Proc. No. 98-90870 is
hereby suspended until the termination of the aforesaid testate proceedings.

No costs.

SO ORDERED.

G.R. No. 42258 September 5, 1936

In re Will of the deceased Leoncia Tolentino. VICTORIO PAYAD, petitioner-appellant,
vs.
AQUILINA TOLENTINO, oppositor-appellant.

Vicente Foz, Marciano Almario, and Leonardo Abola for petitioner-appellant.

Leodegario Azarraga for oppositor-appellant.

DIAZ, J.:

There are two motions filed by the oppositor Aquilina Tolentino, pending resolution: That of January 29, 1935, praying
for the reconsideration of the decision of the court and that of the same date, praying for a new trial.

The oppositor bases her motion for reconsideration upon the following facts relied upon in her pleading:

1. That the testatrix did not personally place her thumbmark on her alleged will;

2. That the testatrix did not request Attorney Almario to write her name and surname on the spaces of the will where
she should place her thumbmarks;

3. That the will in question was not signed by the testatrix on the date indicated therein;

4. That the testatrix never made the will in question; and

5. That on the date the will in question was executed, the testatrix was no longer in a physical or mental condition to
make it.

We have again reviewed the evidence to determine once more whether the errors assigned by the oppositor in her
brief have not been duly considered, whether some fact or detail which might have led us to another conclusion has
been overlooked, or whether the conclusions arrived at in our decision are not supported by the evidence. We have
found that the testatrix Leoncia Tolentino, notwithstanding her advanced age of 92 years, was in good health until
September 1, 1933. She had a slight cold on said date for which reason she was visited by her physician, Dr.
Florencio Manuel. Said physician again visited her three or four days later and found her still suffering from said
illness but there was no indication that she had but a few days to live. She ate comparatively well and conserved her
mind and memory at least long after noon of September 7, 1933. She took her last nourishment of milk in the morning
of the following day, September 8, 1933, and death did not come to her until 11 o'clock sharp that morning.

The will in question was prepared by Attorney Marciano Almario between 11 and 12 o'clock noon on September 7,
1933, in the house of the testatrix Leoncia Tolentino, after she had expressed to said attorney her desire to make a
will and bequeath her property to the petitioner Victorio Payad in compensation according to her, for his diligent and
faithful services rendered to her. Victorio Payad had grown up under the care of the testatrix who had been in her
home from childhood. The will was written by Attorney Almario in his own handwriting, and was written in Spanish
because he had been instructed to do so by the testatrix. It was later read to her in the presence of Pedro L. Cruz,
Jose Ferrer Cruz, Perfecto L. Ona and other persons who were then present. The testatrix approved all the contents
of the document and requested Attorney Almario to write her name where she had to sign by means of her
thumbmark in view of the fact that her fingers no longer had the necessary strength to hold a pen. She did after
having taken the pen and tried to sign without anybody's help. Attorney Almario proceeded to write the name of the
testatrix on the three pages composing the will and the testatrix placed her thumbmark on said writing with the help of
said attorney, said help consisting in guiding her thumb in order to place the mark between her name and surname,
after she herself had moistened the tip of her thumb with which she made such mark, on the ink pad which was
brought to her for said purpose. Said attorney later signed the three pages of the will in the presence of the testatrix
and also of Pedro L. Cruz, and Jose Ferrer Cruz and Perfecto L. Ona, who, in turn, forthwith signed it successively
and exactly under the same circumstances above stated.

In support of her claim that the testatrix did not place her thumbmark on the will on September 7, 1983, and that she
never made said will because she was no longer physically or mentally in a condition do so, the oppositor cites the
testimony of Julian Rodriguez, Gliceria Quisonia, Paz de Leon and her own.
Julian Rodriguez and Gliceria Quisonia testified that they had not seen Attorney Almario in the morning of September
7, 1933, in the house of the deceased where they were then living, and that the first time that they saw him there was
at about 12 o'clock noon on September 8th of said year, when Leoncia Tolentino was already dead, Gliceria Quisonia
stating that on that occasion Almario arrived there accompanied only by woman named Pacing. They did not state
that Almario was accompanied by Pedro L. Cruz, Jose Ferrer Cruz and Perfecto L. Ona, the instrumental witnesses
of the will. Said two witnesses, however, could not but admit that their room was situated at the other end of the
rooms occupied by the deceased herself and by the petitioner Victorio Payad, and that their said room and that of
Victorio Payad are separated by the stairs of the house; that Gliceria Quisonia saw the deceased only once on the
7th and twice on the 8th, and that Julian Rodriguez stayed in his room, without leaving it, from 9 to 12 o'clock a. m. on
the 7th of said month. Gliceria Quisonia further stated that in the morning of September 7th, she prepared the
noonday meal in the kitchen which was situated under the house. Under such circumstances it is not strange that the
two did not see the testatrix when, according to the evidence for the petitioner, she made her will and signed it by
means of her thumbmark. In order to be able to see her and also Almario and the instrumental witnesses of the will,
on that occasion, it was necessary for them to enter the room where the deceased was, or at least the adjoining room
where the will was prepared by Attorney Almario, but they did not do so.

Gliceria Quisonia and Julian Rodriguez also testified that on the 7th the testatrix was already so weak that she could
not move and that she could hardly be understood because she could no longer enunciate, making it understood
thereby, that in such condition it was absolutely impossible for her to make any will. The attorney for the oppositor
insists likewise and more so because, according to him and his witness Paz de Leon, two days before the death of
the testatrix, or on September 6, 1933, she could not even open her eyes or make herself understood.

The testimony of said witnesses is not sufficient to overthrow, or discredit the testimony of the petitioner-appellant or
that of Attorney Almario and the three instrumental witnesses of the will because, to corroborate them, we have of
record the testimony of the physician of the deceased and the accountant Ventura Loreto who are two disinterested
witnesses, inasmuch as the outcome of these proceedings does not affect them in the least. The two testified that
two, three or four days before the death of the testatrix, they visited her in her home, the former professionally, and
the latter as an acquaintance, and they then found her not so ill as to be unable to move or hold a conversation. They
stated that she spoke to them intelligently; that she answered all the questions which they had put to her, and that
she could still move in spite of her weakness.

In view of the foregoing facts and considerations, we deem it clear that the oppositor's motion for reconsideration is
unfounded.

The oppositor's motion for a new trial is based upon the following facts: (1) That upon her death, the deceased left a
letter signed by herself, placed in a stamped envelope and addressed to Teodoro R. Yangco, with instructions not to
open it until after her death; (2) that there are witnesses competent to testify on the letter in question, in addition to
other evidence discovered later, which could not be presented at the trial; (3) that in the letter left by the deceased,
she transfers all her property to Teodoro R. Yangco stating therein that, upon her death, all the property in question
should become Yangco's. From this alleged fact, the oppositor infers that the deceased never had and could not
have had the intention to make the will in question, and (4) that said oppositor knew of the existence of said letter
only after her former attorney, Alejandro Panis, had been informed thereof in May, 1935, by one of Teodoro R.
Yangco's attorneys named Jose Cortes.

Subsequent to the presentation of the motion for a new trial, the oppositor filed another supplementary motion
alleging that she had discovered some additional new evidence consisting in the affidavit of Attorney Gabino
Fernando Viola wherein the latter affirms that Victorio Payad had called him on September 5, 1933, to prepare the
will of the deceased but he did not do so because after seeing her he had been convinced that she could not make a
will because she had lost her speech and her eyes were already closed.

The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola, substantially affirming the facts alleged by the
oppositor, are attached to both motions for a new trial.

The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola are not and cannot be newly discovered
evidence, and are not admissible to warrant the holding of a new trial, because the oppositor had been informed of
the facts affirmed by Attorney Jose Cortes in his affidavit long before this case was decided by this court. It is stated
in said affidavit that in May, 1935, Attorney Jose Cortes revealed to the attorney for oppositor the fact that the
deceased had left a letter whereby she transferred all her property to Teodoro R. Yangco, and the judgment was
rendered only on January 15, 1936, or eight months later.
The oppositor contends that she had no reason to inform the court of said newly discovered evidence inasmuch as
the judgment of the lower court was favorable to her. She, however, overlooks the fact that she also appealed from
the decision of the lower court and it was her duty, under the circumstances, to inform this court of the discovery of
said allegedly newly discovered evidence and to take advantage of the effects thereof because, by so doing, she
could better support her claim that the testatrix made no will, much less the will in question. Said evidence, is not new
and is not of the nature of that which gives rise to a new trial because, under the law, in order that evidence may be
considered newly discovered evidence and may serve as a ground for a new trial, it is necessary (a) that it could not
have been discovered in time, even by the exercise of due diligence; (b) that it be material, and (c) that it also be of
such a character as probably to change the result if admitted (section 497, Act No. 190; Banal vs. Safont, 8 Phil.,
276).

The affidavit of Attorney Cortes is neither material nor important in the sense that, even considering it newly
discovered evidence, it will be sufficient to support the decision of the lower court and modify that of this court. It is
simply hearsay or, at most, corroborative evidence. The letter of the deceased Leoncia Tolentino to Teodoro R.
Yangco would, in the eyes of the law, be considered important or material evidence but this court has not the letter in
question before it, and no attempt was ever made to present a copy thereof.

The affidavit of Attorney Gabino Fernando Viola or testimony he may give pursuant thereto is not more competent
than that of Attorney Jose Cortes because, granting that when he was called by Victorio Payad to help the deceased
Leoncia Tolentino to make her will and he went to her house on September 5, 1933, the deceased was almost
unconscious, was unintelligible and could not speak, it does not necessarily mean that on the day she made her will,
September 7, 1933, she had not recovered consciousness and all her mental faculties to capacitate her to dispose of
all her property. What Attorney Gabino Fernando Viola may testify pursuant to his affidavit in question is not and can
not be newly discovered evidence of the character provided for by law, not only because it does not exclude the
possibility that testatrix had somewhat improved in health, which possibility became a reality at the time she made her
will because she was then in the full enjoyment of her mental faculties, according to the testimony of Pedro L. Cruz,
Jose Ferrer Cruz, Perfecto L. Ona, Victorio Payad and Marciano Almario, but also because during the hearing of
these proceedings in the Court of First Instance, Attorney Viola was present, and the oppositor then could have very
well called him to the witness stand, inasmuch as her attorney already knew what Attorney Viola was to testify about,
yet she did not call him. The last fact is shown by the following excerpt from pages 148 to 150 of the transcript:

Mr. PANIS (attorney for the oppositor, addressing the court): Your Honor, I should like to present as the last
witness Attorney Fernando Viola who was called by the petitioner Victoria Payad to prepare the will of the
deceased in his favor on September 5, 1933.

COURT: But, Mr. Panis, are you going to testify for Attorney Fernando Viola? — Mr. PANIS: No, Your
Honor.

COURT: Well, where is that attorney? Where is that witness whom you wish to call to the witness stand? —
Mr. PANIS: Your Honor, he is busy in the branch, presided over by Judge Sison.

COURT: And when can he come? Mr. — PANIS. I am now going to find out, Your Honor. If the other party,
Your Honor, is willing to admit what said witness is going to testify in the sense that said Attorney Fernando
Viola went to the house of the deceased on September 5, 1933, for the purpose of talking to the deceased
to draft the will upon petition of Mr. Victorio Payad; if the other party admits that, then I am going waive the
presentation of the witness Mr. Fernando Viola.

Mr. ALMARIO (attorney for the petitioner): We cannot admit that.

COURT: The court had already assumed beforehand that the other party would not admit that proposition.

Mr. PANIS: I request Your Honor to reserve us the right to call the witness, Mr. Viola, without prejudice to
the other party's calling the witness it may wish to call.

COURT: The court reserves to the oppositor its right to call Attorney Viola to the witness stand.
If, after all, the oppositor did not decide to call Attorney Viola to testify as a witness in her favor, it might have been
because she considered his testimony unimportant and unnecessary, and at the present stage of the proceedings, it
is already too late to claim that what said attorney may now testify is a newly discovered evidence.

For the foregoing considerations, those stated by this court in the original decision, and the additional reason that, as
held in the case of Chung Kiat vs. Lim Kio (8 Phil., 297), the right to a new trial on the ground of newly discovered
evidence is limited to ordinary cases pending in this court on bills of exceptions, the motion for reconsideration and a
new trial filed by the oppositor are hereby denied, ordering that the record be remanded immediately to the lower
court. So ordered.

Avanceña, C. J., Villa-Real, Abad Santos, Imperial, and Laurel, JJ., concur.

G.R. No. L-4067 November 29, 1951

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.

Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.

Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.

PARAS, C.J.:

This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado dated January 3,
1943. The will is written in the Ilocano dialect and contains the following attestation clause:

We, the undersigned, by these presents to declare that the foregoing testament of Antero Mercado was
signed by himself and also by us below his name and of this attestation clause and that of the left margin of
the three pages thereof. Page three the continuation of this attestation clause; this will is written in Ilocano
dialect which is spoken and understood by the testator, and it bears the corresponding number in letter
which compose of three pages and all them were signed in the presence of the testator and witnesses, and
the witnesses in the presence of the testator and all and each and every one of us witnesses.

In testimony, whereof, we sign this statement, this the third day of January, one thousand nine hundred forty
three, (1943) A.D.

(Sgd.) NUMERIANO EVANGELISTA (Sgd.) "ROSENDA CORTES

(Sgd.) BIBIANA ILLEGIBLE

The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero Mercado, followed
below by "A reugo del testator" and the name of Florentino Javier. Antero Mercado is alleged to have written a cross
immediately after his name. The Court of Appeals, reversing the judgement of the Court of First Instance of Ilocos
Norte, ruled that the attestation clause failed (1) to certify that the will was signed on all the left margins of the three
pages and at the end of the will by Atty. Florentino Javier at the express request of the testator in the presence of the
testator and each and every one of the witnesses; (2) to certify that after the signing of the name of the testator by
Atty. Javier at the former's request said testator has written a cross at the end of his name and on the left margin of
the three pages of which the will consists and at the end thereof; (3) to certify that the three witnesses signed the will
in all the pages thereon in the presence of the testator and of each other.

In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado caused Atty. Florentino
Javier to write the testator's name under his express direction, as required by section 618 of the Code of Civil
Procedure. The herein petitioner (who is appealing by way of certiorari from the decision of the Court of Appeals)
argues, however, that there is no need for such recital because the cross written by the testator after his name is a
sufficient signature and the signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is that the cross is
as much a signature as a thumbmark, the latter having been held sufficient by this Court in the cases of De
Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil., 848;
Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.

It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado or even one of
the ways by which he signed his name. After mature reflection, we are not prepared to liken the mere sign of the
cross to a thumbmark, and the reason is obvious. The cross cannot and does not have the trustworthiness of a
thumbmark.

What has been said makes it unnecessary for us to determine there is a sufficient recital in the attestation clause as
to the signing of the will by the testator in the presence of the witnesses, and by the latter in the presence of the
testator and of each other.

Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So ordered.

Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista Angelo, JJ., concur.

G.R. No. L-6285 February 15, 1912

PEDRO BARUT, petitioner-appellant,

vs.
FAUSTINO CABACUNGAN, ET AL., opponents-appellees.

A. M. Jimenez for appellant.

Ramon Querubin for appellees.

MORELAND, J.:

This case is closely connected with the case of Faustino Cabacungan vs. Pedro Barut and another, No. 6284,1 just
decided by this court, wherein there was an application for the probate of an alleged last will and testament of the
same person the probate of whose will is involved in this suit.

This appeal arises out of an application on the part of Pedro Barut to probate the last will and testament of Maria
Salomon, deceased. It is alleged in the petition of the probate that Maria Salomon died on the 7th day of November,
1908, in the pueblo of Sinait, Ilocos Sur, leaving a last will and testament bearing date March 2, 1907. Severo
Agayan, Timotea Inoselda, Catalino Ragasa, and A. M. Jimenez are alleged to have been witnesses to the execution
thereof. By the terms of said will Pedro Barut received the larger part of decedent's property.

The original will appears on page 3 of the record and is in the Ilocano dialect. Its translation into Spanish appears at
page 11. After disposing of her property the testatrix revoked all former wills by her made. She also stated in said will
that being unable to read or write, the same had been read to her by Ciriaco Concepcion and Timotea Inoselda and
that she had instructed Severo Agayan to sign her name to it as testatrix.

The probate of the will was contested and opposed by a number of the relatives of the deceased on various grounds,
among them that a later will had been executed by the deceased. The will referred to as being a later will is the one
involved in case No. 6284 already referred to. Proceeding for the probate of this later will were pending at the time.
The evidence of the proponents and of the opponents was taken by the court in both cases for the purpose of
considering them together.

In the case before us the learned probate court found that the will was not entitled to probate upon the sole ground
that the handwriting of the person who it is alleged signed the name of the testatrix to the will for and on her behalf
looked more like the handwriting of one of the other witnesses to the will than that of the person whose handwriting it
was alleged to be. We do not believe that the mere dissimilarity in writing thus mentioned by the court is sufficient to
overcome the uncontradicted testimony of all the witnesses to the will that the signature of the testatrix was written by
Severo Agayan at her request and in her presence and in the presence of all the witnesses to the will. It is immaterial
who writes the name of the testatrix provided it is written at her request and in her presence and in the presence of all
the witnesses to the execution of the will.

The court seems , by inference at least, to have had in mind that under the law relating to the execution of a will it is
necessary that the person who signs the name of the testatrix must afterwards sign his own name; and that, in view
of the fact that, in the case at bar, the name signed below that of the testatrix as the person who signed her name,
being, from its appearance, not the same handwriting as that constituting the name of the testatrix, the will is
accordingly invalid, such fact indicating that the person who signed the name of the testatrix failed to sign his own.
We do not believe that this contention can be sustained. Section 618 of the Code of Civil Procedure reads as follows:

No will, except as provided in the preceding section, shall be valid to pass any estate, real or personal, nor
charge or effect the same, unless it be in writing and signed by the testator, or by the testator's name written
by some other person in his presence, and by his expenses direction, and attested and subscribed by three
or more credible witnesses in the presence of the testator and of each. . . .

This is the important part of the section under the terms of which the court holds that the person who signs the name
of the testator for him must also sign his own name The remainder of the section reads:

The attestation shall state the fact that the testator signed the will, or caused it to be signed by some other
person, at his express direction, in the presence of three witnesses, and that they attested and subscribed it
in his presence and in the presence of each other. But the absence of such form of attestation shall not
render the will invalid if it is proven that the will was in fact signed and attested as in this section provided.

From these provisions it is entirely clear that, with respect to the validity of the will, it is unimportant whether the
person who writes the name of the testatrix signs his own or not. The important thing is that it clearly appears that the
name of the testatrix was signed at her express direction in the presence of three witnesses and that they attested
and subscribed it in her presence and in the presence of each other. That is all the statute requires. It may be wise as
a practical matter that the one who signs the testator's name signs also his own; but that it is not essential to
the validity of the will. Whether one parson or another signed the name of the testatrix in this case is absolutely
unimportant so far as the validity of her will is concerned. The plain wording of the statute shows that the requirement
laid down by the trial court, if it did lay down, is absolutely unnecessary under the law; and the reasons underlying the
provisions of the statute relating to the execution of wills do not in any sense require such a provision. From the
standpoint of language it is an impossibility to draw from the words of the law the inference that the persons who
signs the name of the testator must sign his own name also. The law requires only three witnesses to a will, not four.

Nor is such requirement found in any other branch of the law. The name of a person who is unable to write may be
signed by another by express direction to any instrument known to the law. There is no necessity whatever, so far as
the validity of the instrument is concerned, for the person who writes the name of the principal in the document to sign
his own name also. As a matter of policy it may be wise that he do so inasmuch as it would give such intimation as
would enable a person proving the document to demonstrate more readily the execution by the principal. But as a
matter of essential validity of the document, it is unnecessary. The main thing to be established in the execution of
the will is the signature of the testator. If that signature is proved, whether it be written by himself or by another at his
request, it is none the less valid, and the fact of such signature can be proved as perfectly and as completely when
the person signing for the principal omits to sign his own name as it can when he actually signs. To hold a will invalid
for the lack of the signature of the person signing the name of the principal is, in the particular case, a complete
abrogation of the law of wills, as it rejects and destroys a will which the statute expressly declares is valid.

There have been cited three cases which it is alleged are in opposition to the doctrine which we have herein laid
down. They are Ex parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas (4 Phil. Rep., 700), and
Guison vs.Concepcion (5 Phil. Rep., 551). Not one of these cases is in point. The headnote in the case last above
stated gives an indication of what all of cases are and the question involved in each one of them. It says:

The testatrix was not able to sign it for her. Instead of writing her name he wrote his own upon the will. Held,
That the will was not duly executed.
All of the above cases are precisely of this character. Every one of them was a case in which the person who signed
the will for the testator wrote his own name to the will instead of writing that of the testator, so that the testator's name
nowhere appeared attached to the will as the one who executed it. The case of Ex parte Arcenas contains the
following paragraph:

Where a testator does not know, or is unable for any reason, to sign the will himself, it shall be signed in the
following manner: "John Doe, by the testator, Richard Roe;" or in this form: "By the testator. John Doe,
Richard Roe." All this must be written by the witness signing at the request of the testator.

The only question for decision in that case, as we have before stated, was presented by the fact that the person who
was authorized to sign the name of the testator to the will actually failed to sign such name but instead signed his
own thereto. The decision in that case related only to that question.

Aside from the presentation of an alleged subsequent will the contestants in this case have set forth no reason
whatever why the will involved in the present litigation should not be probated. The due and legal execution of the will
by the testatrix is clearly established by the proofs in this case. Upon the facts, therefore, the will must be probated.
As to the defense of a subsequent will, that is resolved in case No. 6284 of which we have already spoken. We there
held that said later will not the will of the deceased.

The judgment of the probate court must be and is hereby reversed and that court is directed to enter an order in the
usual form probating the will involved in this litigation and to proceed with such probate in accordance with law.

Arellano, C.J., Mapa and Carson, JJ., concur.

G.R. No. L-18979 June 30, 1964

IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTE.

CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.

Jose W. Diokno for petitioner-appellee.

Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.

REYES, J.B.L., J.:

Appeal from an order of the Court of First Instance of Manila admitting to probate the document and its duplicate,
marked as Exhibits "A" and "A-1", as the true last will and testament of Josefa Villacorte, deceased, and appointing
as executor Celso Icasiano, the person named therein as such.

This special proceeding was begun on October 2, 1958 by a petition for the allowance and admission to probate of
the original, Exhibit "A" as the alleged will of Josefa Villacorte, deceased, and for the appointment of petitioner Celso
Icasiano as executor thereof.

The court set the proving of the alleged will for November 8, 1958, and caused notice thereof to be published for
three (3) successive weeks, previous to the time appointed, in the newspaper "Manila chronicle", and also caused
personal service of copies thereof upon the known heirs.

On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her opposition; and on November 10, 1958,
she petitioned to have herself appointed as a special administrator, to which proponent objected. Hence, on
November 18, 1958, the court issued an order appointing the Philippine Trust Company as special administrator. 1äwphï1.ñët
On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a manifestation adopting as his own
Natividad's opposition to the probate of the alleged will.

On March 19, 1959, the petitioner proponent commenced the introduction of his evidence; but on June 1, 1959, he
filed a motion for the admission of an amended and supplemental petition, alleging that the decedent left a will
executed in duplicate with all the legal requirements, and that he was, on that date, submitting the signed duplicate
(Exhibit "A-1"), which he allegedly found only on or about May 26, 1959. On June 17, 1959, oppositors Natividad
Icasiano de Gomez and Enrique Icasiano filed their joint opposition to the admission of the amended and
supplemental petition, but by order of July 20, 1959, the court admitted said petition, and on July 30, 1959, oppositor
Natividad Icasiano filed her amended opposition. Thereafter, the parties presented their respective evidence, and
after several hearings the court issued the order admitting the will and its duplicate to probate. From this order, the
oppositors appealed directly to this Court, the amount involved being over P200,000.00, on the ground that the same
is contrary to law and the evidence.

The evidence presented for the petitioner is to the effect that Josefa Villacorte died in the City of Manila on
September 12, 1958; that on June 2, 1956, the late Josefa Villacorte executed a last will and testament in duplicate at
the house of her daughter Mrs. Felisa Icasiano at Pedro Guevara Street, Manila, published before and attested by
three instrumental witnesses, namely: attorneys Justo P. Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy;
that the will was acknowledged by the testatrix and by the said three instrumental witnesses on the same date before
attorney Jose Oyengco Ong, Notary Public in and for the City of Manila; and that the will was actually prepared by
attorney Fermin Samson, who was also present during the execution and signing of the decedent's last will and
testament, together with former Governor Emilio Rustia of Bulacan, Judge Ramon Icasiano and a little girl. Of the
said three instrumental witnesses to the execution of the decedent's last will and testament, attorneys Torres and
Natividad were in the Philippines at the time of the hearing, and both testified as to the due execution and authenticity
of the said will. So did the Notary Public before whom the will was acknowledged by the testatrix and attesting
witnesses, and also attorneys Fermin Samson, who actually prepared the document. The latter also testified upon
cross examination that he prepared one original and two copies of Josefa Villacorte last will and testament at his
house in Baliuag, Bulacan, but he brought only one original and one signed copy to Manila, retaining one unsigned
copy in Bulacan.

The records show that the original of the will, which was surrendered simultaneously with the filing of the petition and
marked as Exhibit "A" consists of five pages, and while signed at the end and in every page, it does not contain the
signature of one of the attesting witnesses, Atty. Jose V. Natividad, on page three (3) thereof; but the duplicate copy
attached to the amended and supplemental petition and marked as Exhibit "A-1" is signed by the testatrix and her
three attesting witnesses in each and every page.

The testimony presented by the proponents of the will tends to show that the original of the will and its duplicate were
subscribed at the end and on the left margin of each and every page thereof by the testatrix herself and attested and
subscribed by the three mentioned witnesses in the testatrix's presence and in that of one another as witnesses
(except for the missing signature of attorney Natividad on page three (3) of the original); that pages of the original and
duplicate of said will were duly numbered; that the attestation clause thereof contains all the facts required by law to
be recited therein and is signed by the aforesaid attesting witnesses; that the will is written in the language known to
and spoken by the testatrix that the attestation clause is in a language also known to and spoken by the witnesses;
that the will was executed on one single occasion in duplicate copies; and that both the original and the duplicate
copies were duly acknowledged before Notary Public Jose Oyengco of Manila on the same date June 2, 1956.

Witness Natividad who testified on his failure to sign page three (3) of the original, admits that he may have lifted two
pages instead of one when he signed the same, but affirmed that page three (3) was signed in his presence.

Oppositors-appellants in turn introduced expert testimony to the effect that the signatures of the testatrix in the
duplicate (Exhibit "A-1") are not genuine nor were they written or affixed on the same occasion as the original, and
further aver that granting that the documents were genuine, they were executed through mistake and with undue
influence and pressure because the testatrix was deceived into adopting as her last will and testament the wishes of
those who will stand to benefit from the provisions of the will, as may be inferred from the facts and circumstances
surrounding the execution of the will and the provisions and dispositions thereof, whereby proponents-appellees
stand to profit from properties held by them as attorneys-in-fact of the deceased and not enumerated or mentioned
therein, while oppositors-appellants are enjoined not to look for other properties not mentioned in the will, and not to
oppose the probate of it, on penalty of forfeiting their share in the portion of free disposal.
We have examined the record and are satisfied, as the trial court was, that the testatrix signed both original and
duplicate copies (Exhibits "A" and "A-1", respectively) of the will spontaneously, on the same in the presence of the
three attesting witnesses, the notary public who acknowledged the will; and Atty. Samson, who actually prepared the
documents; that the will and its duplicate were executed in Tagalog, a language known to and spoken by both the
testator and the witnesses, and read to and by the testatrix and Atty. Fermin Samson, together before they were
actually signed; that the attestation clause is also in a language known to and spoken by the testatrix and the
witnesses. The opinion of expert for oppositors, Mr. Felipe Logan, that the signatures of the testatrix appearing in the
duplicate original were not written by the same had which wrote the signatures in the original will leaves us
unconvinced, not merely because it is directly contradicted by expert Martin Ramos for the proponents, but principally
because of the paucity of the standards used by him to support the conclusion that the differences between the
standard and questioned signatures are beyond the writer's range of normal scriptural variation. The expert has, in
fact, used as standards only three other signatures of the testatrix besides those affixed to the original of the
testament (Exh. A); and we feel that with so few standards the expert's opinion and the signatures in the duplicate
could not be those of the testatrix becomes extremely hazardous. This is particularly so since the comparison charts
Nos. 3 and 4 fail to show convincingly that the are radical differences that would justify the charge of forgery, taking
into account the advanced age of the testatrix, the evident variability of her signatures, and the effect of writing
fatigue, the duplicate being signed right the original. These, factors were not discussed by the expert.

Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned signatures does not appear
reliable, considering the standard and challenged writings were affixed to different kinds of paper, with different
surfaces and reflecting power. On the whole, therefore, we do not find the testimony of the oppositor's expert
sufficient to overcome that of the notary and the two instrumental witnesses, Torres and Natividad (Dr. Diy being in
the United States during the trial, did not testify).

Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs are more favored than others
is proof of neither (see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronal, 45 Phil. 216).
Diversity of apportionment is the usual reason for making a testament; otherwise, the decedent might as well die
intestate. The testamentary dispositions that the heirs should not inquire into other property and that they should
respect the distribution made in the will, under penalty of forfeiture of their shares in the free part do not suffice to
prove fraud or undue influence. They appear motivated by the desire to prevent prolonged litigation which, as shown
by ordinary experience, often results in a sizeable portion of the estate being diverted into the hands of non-heirs and
speculators. Whether these clauses are valid or not is a matter to be litigated on another occassion. It is also well to
note that, as remarked by the Court of Appeals in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud and undue influence are
mutually repugnant and exclude each other; their joining as grounds for opposing probate shows absence of definite
evidence against the validity of the will.

On the question of law, we hold that the inadvertent failure of one witness to affix his signature to one page of a
testament, due to the simultaneous lifting of two pages in the course of signing, is not per se sufficient to justify denial
of probate. Impossibility of substitution of this page is assured not only the fact that the testatrix and two other
witnesses did sign the defective page, but also by its bearing the coincident imprint of the seal of the notary public
before whom the testament was ratified by testatrix and all three witnesses. The law should not be so strictly and
literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct
she had no control, where the purpose of the law to guarantee the identity of the testament and its component pages
is sufficiently attained, no intentional or deliberate deviation existed, and the evidence on record attests to the full
observance of the statutory requisites. Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479
(decision on reconsideration) "witnesses may sabotage the will by muddling or bungling it or the attestation clause".

That the failure of witness Natividad to sign page three (3) was entirely through pure oversight is shown by his own
testimony as well as by the duplicate copy of the will, which bears a complete set of signatures in every page. The
text of the attestation clause and the acknowledgment before the Notary Public likewise evidence that no one was
aware of the defect at the time.

This would not be the first time that this Court departs from a strict and literal application of the statutory
requirements, where the purposes of the law are otherwise satisfied. Thus, despite the literal tenor of the law, this
Court has held that a testament, with the only page signed at its foot by testator and witnesses, but not in the left
margin, could nevertheless be probated (Abangan vs. Abangan, 41 Phil. 476); and that despite the requirement for
the correlative lettering of the pages of a will, the failure to make the first page either by letters or numbers is not a
fatal defect (Lopez vs. Liboro, 81 Phil. 429). These precedents exemplify the Court's policy to require satisfaction of
the legal requirements in order to guard against fraud and bid faith but without undue or unnecessary curtailment of
the testamentary privilege.
The appellants also argue that since the original of the will is in existence and available, the duplicate (Exh. A-1) is
not entitled to probate. Since they opposed probate of original because it lacked one signature in its third page, it is
easily discerned that oppositors-appellants run here into a dilemma; if the original is defective and invalid, then in law
there is no other will but the duly signed carbon duplicate (Exh. A-1), and the same is probatable. If the original is
valid and can be probated, then the objection to the signed duplicate need not be considered, being superfluous and
irrelevant. At any rate, said duplicate, Exhibit A-1, serves to prove that the omission of one signature in the third page
of the original testament was inadvertent and not intentional.

That the carbon duplicate, Exhibit A-1, was produced and admitted without a new publication does not affect the
jurisdiction of the probate court, already conferred by the original publication of the petition for probate. The amended
petition did not substantially alter the one first filed, but merely supplemented it by disclosing the existence of the
duplicate, and no showing is made that new interests were involved (the contents of Exhibit A and A-1 are admittedly
identical); and appellants were duly notified of the proposed amendment. It is nowhere proved or claimed that the
amendment deprived the appellants of any substantial right, and we see no error in admitting the amended petition.

IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with costs against appellants.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Paredes, Regala and Makalintal, JJ., concur.
Barrera and Dizon, JJ., took no part.

G.R. No. 16008 September 29, 1921

IN RE WILL OF THE DECEASED LUCINA ANDRADA, LUCILA ARCE, petitioner-appellant.

J. Dorado, J. Tirol, and J. Hontiveros for appellant.

STREET, J.:

Lucina Andrada died on June 5, 19919, in the Municipality of Capiz, Province of Capiz; and soon thereafter a petition
was presented to the Cour of First Instance of Capiz by Lucila Arce to establish a document purporting to be the last
will and testament of the deceased. Upon hearing the petition, his Honor, Judge Antonio Villareal, declared that the
document in question had not been executed in conformity with the requirements of section 618 of the Coe of Civil
Procedure, as amended by Act No. 2645 of the Philippine Legislature. He therefore refused to admit the purported
will to probate, and the petitioner appealed.

The attesting clause of the will in question is incorporated in the will itself, constituting the last paragraph thereof; and
its defect consists in the fact that it does not state the number of sheets or pages upon which the will is written,
though it does state that the testatrix and the instrumental witnesses signed on every page, as is in fact obvious from
an inspection of the instrument. Each of the pages moreover bears successively the Visayan words, "isa," "duha,"
"tatlo," "apat," "lima," which mean respectively "one," "two," "three," "four," "five," Visayan being the dialect in which
the instrument is written.

By section 618 of the Code of Civil Procedure, as amended by Act No. 2645, it is required that each and every page
of the will shall be numbered correlatively in letters and that the attesting clause shall state the number of sheets or
pages used.

Without decising in this case whether the will in question is rendered invalid by reason of the manner in which the
pages are numbered, the court is unanimous upon the point that the defect pointed out in the attesting clause is fatal.
The law plainly says that the attestation shall state the number of sheets or pages used, the eident purpose being to
safeguard the document from the possiblity of the interpolation of additional pages or the omission of some of the
pages actually used. It is true that this point is also safeguarded by the other two requirements that the pages shall be
consecutively lettered and that each page shall be singed on the left margin by the testator and the witnesses. In light
of these requirements it is really difficult to see any practical necessity for the additional requirement that the attesting
clause shall state the number of sheets or pages used. Nevertheless, it cannot be denied that the last mentioned
requirement affords additional secuirty against the danger that the will may be tampered with; and as the Legislature
has seen fit to prescribe this requirement, it must be considered material.

In two cases we have held that the failure to comply with the strict requirements of this law does not invalidate the
instrument, but the irregularities presented in those cases were entirely rivial, the defect in one case being that a willin
which the dispositive part consisted of a single sheet was not signed in the margin in addition to being signed at the
bottom (In re will of Abangan, 40 Phil., 476); in the others, that the pages comprising the body of the will were signed
by the testator and witnesses on the right margin instead of the left (Avera vs. Garcia and Rodriguez, p. 145, ante). In
the case now before us the defect is, in our opinion, of more significance; and the rule here applicable is that
enunciated in Caraig vs. Tatlonghari, R.G. No. 12558, decided March 23, 1918, not reported, and (In re estate of
Saguinsim, 41 Phil., 875), in each of which the will was held to be invalid.

It results that the trial judge did not err in refusing probate of the will, and the judgment must be affirmed. It is so
ordered, with costs against the appellant.

Johnson, Araullo, Avanceña and Villamor, JJ., concur.

G.R. No. L-5826 April 29, 1953

Testate estate of the late VICENTE CAGRO. JESUSA CAGRO, petitioner-appellee,

vs.
PELAGIO CAGRO, ET AL., oppositors-appellants.

Clouduallo Lucero and Vicente C. Santos for appellants.

Marciano Chitongco and Zosimo B. Echanova for appellee.

PARAS, C.J.:

This is an appeal interposed by the oppositors from a decision of the Court of First Instance of Samar, admitting to
probate the will allegedly executed by Vicente Cagro who died in Laoangan, Pambujan, Samar, on February 14,
1949.

The main objection insisted upon by the appellant in that the will is fatally defective, because its attestation clause is
not signed by the attesting witnesses. There is no question that the signatures of the three witnesses to the will do not
appear at the bottom of the attestation clause, although the page containing the same is signed by the witnesses on
the left-hand margin.

We are of the opinion that the position taken by the appellant is correct. The attestation clause is 'a memorandum of
the facts attending the execution of the will' required by law to be made by the attesting witnesses, and it must
necessarily bear their signatures. An unsigned attestation clause cannot be considered as an act of the witnesses,
since the omission of their signatures at the bottom thereof negatives their participation.

The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin conform
substantially to the law and may be deemed as their signatures to the attestation clause. This is untenable, because
said signatures are in compliance with the legal mandate that the will be signed on the left-hand margin of all its
pages. If an attestation clause not signed by the three witnesses at the bottom thereof, be admitted as sufficient, it
would be easy to add such clause to a will on a subsequent occasion and in the absence of the testator and any or all
of the witnesses.

Wherefore, the appealed decision is reversed and the probate of the will in question denied. So ordered with costs
against the petitioner and appellee.

Pablo, Bengzon, Montemayor, Jugo and Labrador, JJ., concur.

Separate Opinions

BAUTISTA ANGELO, J., dissenting:

I dissent. In my opinion the will in question has substantially complied with the formalities of the law and, therefore,
should be admitted to probate . It appears that the will was signed by the testator and was attested by three
instrumental witnesses, not only at the bottom, but also on the left-hand margin. The witnesses testified not only that
the will was signed by the testator in their presence and in the presence of each other but also that when they did so,
the attestation clause was already written thereon. Their testimony has not been contradicted. The only objection set
up by the oppositors to the validity of the will is the fact that the signatures of the instrumental witnesses do not
appear immediately after the attestation clause.

This objection is too technical to be entertained. In the case of Abangan vs. Abangan, (40 Phil., 476), this court said
that when the testamentary dispositions "are wholly written on only one sheet signed at the bottom by the testator and
three witnesses (as the instant case),their signatures on the left margin of said sheet would be completely
purposeless." In such a case, the court said, the requirement of the signatures on the left hand margin was not
necessary because the purpose of the law — which is to avoid the substitution of any of the sheets of the will, thereby
changing the testator's dispositions — has already been accomplished. We may say the same thing in connection
with the will under consideration because while the three instrumental witnesses did not sign immediately by the
majority that it may have been only added on a subsequent occasion and not at the uncontradicted testimony of said
witnesses to the effect that such attestation clause was already written in the will when the same was signed.

The following observation made by this court in the Abangan case is very fitting:

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 i 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 already given assures such ends, any other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary useless and frustrative of the testator's last will, must be
disregarded. (supra)

We should not also overlook the liberal trend of the New Civil Code in the matter of interpretation of wills, the purpose
of which, in case of doubt, is to give such interpretation that would have the effect of preventing intestacy (article 788
and 791, New Civil Code)

I am therefore of the opinion that the will in question should be admitted to probate.

Feria, J., concurs.

TUASON, J., dissenting:

I cuncur in Mr. Justice Bautista's dissenting opinion and may add that the majority decision erroneously sets down as
a fact that the attestation clause was no signed when the witnesses signatures appear on the left margin and the real
and only question is whether such signatures are legally sufficient.

The only answers, in our humble opinion, is yes. The law on wills does not provide that the attesting witness should
sign the clause at the bottom. In the absence of such provision, there is no reason why signatures on the margin are
not good. A letter is not any the less the writter's simply because it was signed, not at the conventional place but on
the side or on top.
Feria, J., concurs.

G.R. No. L-7179 June 30, 1955

Testate Estate of the Late Apolinaria Ledesma. FELICIDAD JAVELLANA, petitioner-appellee,

vs.
DOÑA MATEA LEDESMA, oppositor-appellant.

Fulgencio Vega and Felix D. Bacabac for appellant.

Benjamin H. Tirot for appellee.

REYES, J.B.L., J.:

By order of July 23, 1953, the Court of First Instance of Iloilo admitted to probate the documents in the Visayan
dialect, marked Exhibits D and E, as the testament and codicil duly executed by the deceased Da. Apolinaria
Ledesma Vda. de Javellana, on March 30, 1950, and May 29, 1952, respectively, with Ramon Tabiana, Gloria
Montinola de Tabiana and Vicente Yap as witnesses. The contestant, Da. Matea Ledesma, sister and nearest
surviving relative of said deceased, appealed from the decision, insisting that the said exhibits were not executed in
conformity with law. The appeal was made directly to this Court because the value of the properties involved
exceeded two hundred thousand pesos.

Originally the opposition to the probate also charged that the testatrix lacked testamentary capacity and that the
dispositions were procured through undue influence. These grounds were abandoned at the hearing in the court
below, where the issue was concentrated into three specific questions: (1) whether the testament of 1950 was
executed by the testatrix in the presence of the instrumental witnesses; (2) whether the acknowledgment clause was
signed and the notarial seal affixed by the notary without the presence of the testatrix and the witnesses; and (3) if so,
whether the codicil was thereby rendered invalid and ineffective. These questions are the same ones presented to us
for resolution.

The contestant argues that the Court below erred in refusing credence to her witnesses Maria Paderogao and Vidal
Allado, cook and driver, respectively, of the deceased Apolinaria Ledesma. Both testified that on March 30, 1950,
they saw and heard Vicente Yap (one of the witnesses to the will) inform the deceased that he had brought the
"testamento" and urge her to go to attorney Tabiana's office to sign it; that Da. Apolinaria manifested that she could
not go, because she was not feeling well; and that upon Yap's insistence that the will had to be signed in the
attorney's office and not elsewhere, the deceased took the paper and signed it in the presence of Yap alone, and
returned it with the statement that no one would question it because the property involved was exclusively hers.

Our examination of the testimony on record discloses no grounds for reversing the trial Court's rejection of the
improbable story of the witnesses. It is squarely contradicted by the concordant testimony of the instrumental
witnesses, Vicente Yap, Atty. Ramon Tabiana, and his wife Gloria Montinola, who asserted under oath that the
testament was executed by testatrix and witnesses in the presence of each other, at the house of the decedent on
General Hughes St., Iloilo City, on March 30, 1950. And it is highly unlikely, and contrary to usage, that either
Tabiana or Yap should have insisted that Da. Apolinaria, an infirm lady then over 80 years old, should leave her own
house in order to execute her will, when all three witnesses could have easily repaired thither for the purpose.
Moreover, the cross-examination has revealed fatal flaws in the testimony of Contestant's witnesses. Both claim to
have heard the word "testamento" for the first time when Yap used it; and they claimed ability to recall that word four
years later, despite the fact that the term meant nothing to either. It is well known that what is to be remembered must
first be rationally conceived and assimilated (II Moore on Facts, p. 884). Likewise, Maria Paderogao was positive that
Yap brought the will, and that the deceased alone signed it, precisely on March 30, 1950; but she could remember no
other date, nor give satisfactory explanation why that particular day stuck in her mind. Worse still, Allado claimed to
have heard what allegedly transpired between Yap and Da. Apolinaria from the kitchen of the house, that was later
proved to have been separated from the deceased's quarters, and standing at a much lower level, so that
conversations in the main building could not be distinctly heard from the kitchen. Later, on redirect examination,
Allado sought to cure his testimony by claiming that he was upstairs in a room where the servants used to eat when
he heard Yap converse with his mistress; but this correction is unavailing, since it was plainly induced by two highly
leading questions from contestant's counsel that had been previously ruled out by the trial Court. Besides, the
contradiction is hardly consonant with this witness' 18 years of service to the deceased.

Upon the other hand, the discrepancies in the testimony of the instrumental witnesses urged upon us by the
contestant-appellant, concerning the presence or absence of Aurelio Montinola at the signing of the testament or of
the codicil, and the identity of the person who inserted the date therein, are not material and are largely imaginary,
since the witness Mrs. Tabiana confessed inability to remember all the details of the transaction. Neither are we
impressed by the argument that the use of some Spanish terms in the codicil and testament (like legado, partes
iguales, plena propiedad) is proof that its contents were not understood by the testatrix, it appearing in evidence that
those terms are of common use even in the vernacular, and that the deceased was a woman of wide business
interests.

The most important variation noted by the contestants concerns that signing of the certificate of acknowledgment (in
Spanish) appended to the Codicil in Visayan, Exhibit E. Unlike the testament, this codicil was executed after the
enactment of the new Civil Code, and, therefore, had to be acknowledged before a notary public (Art. 806). Now, the
instrumental witnesses (who happen to be the same ones who attested the will of 1950) asserted that after the codicil
had been signed by the testatrix and the witnesses at the San Pablo Hospital, the same was signed and sealed by
notary public Gimotea on the same occasion. On the other hand, Gimotea affirmed that he did not do so, but brought
the codicil to his office, and signed and sealed it there. The variance does not necessarily imply conscious perversion
of truth on the part of the witnesses, but appears rather due to a well-established phenomenon, the tendency of the
mind, in recalling past events, to substitute the usual and habitual for what differs slightly from it (II Moore on Facts, p.
878; The Ellen McGovern, 27 Fed. 868, 870).

At any rate, as observed by the Court below, whether or not the notary signed the certification of acknowledgment in
the presence of the testatrix and the witnesses, does not affect the validity of the codicil. Unlike the Code of 1889
(Art. 699), the new Civil Code does not require that the signing of the testator, witnesses and notary should be
accomplished in one single act. A comparison of Articles 805 and 806 of the new Civil Code reveals that while
testator and witnesses sign in the presence of each other, all that is thereafter required is that "every will must be
acknowledged before a notary public by the testator and the witnesses" (Art. 806); i.e., that the latter should avow to
the certifying officer the authenticity of their signatures and the voluntariness of their actions in executing the
testamentary disposition. This was done in the case before us. The subsequent signing and sealing by the notary of
his certification that the testament was duly acknowledged by the participants therein is no part of the
acknowledgment itself nor of the testamentary act. Hence their separate execution out of the presence of the testatrix
and her witnesses can not be said to violate the rule that testaments should be completed without interruption
(Andalis vs. Pulgueras, 59 Phil. 643), or, as the Roman maxim puts it, "uno codem die ac tempore in eadem loco",
and no reversible error was committed by the Court in so holding. It is noteworthy that Article 806 of the new Civil
Code does not contain words requiring that the testator and the witnesses should acknowledge the testament on the
same day or occasion that it was executed.

The decision admitting the will to probate is affirmed, with costs against appellant.

Bengzon, Acting C.J., Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo, Labrador, and Concepcion, JJ.,concur.

G.R. No. L-32213 November 26, 1973

AGAPITA N. CRUZ, petitioner,

vs.
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of First Instance of Cebu, and
MANUEL B. LUGAY, respondents.

Paul G. Gorrez for petitioner.

Mario D. Ortiz for respondent Manuel B. Lugay.

ESGUERRA, J.:

Petition to review on certiorari the judgment of the Court First Instance of Cebu allowing the probate of the last will a
testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said decease
opposed the allowance of the will (Exhibit "E"), alleging the will was executed through fraud, deceit, misrepresentation
and undue influence; that the said instrument was execute without the testator having been fully informed of the
content thereof, particularly as to what properties he was disposing and that the supposed last will and testament was
not executed in accordance with law. Notwithstanding her objection, the Court allowed the probate of the said last will
and testament Hence this appeal by certiorari which was given due course.

The only question presented for determination, on which the decision of the case hinges, is whether the supposed
last will and testament of Valente Z. Cruz (Exhibit "E") was executed in accordance with law, particularly Articles 805
and 806 of the new Civil Code, the first requiring at least three credible witnesses to attest and subscribe to the will,
and the second requiring the testator and the witnesses to acknowledge the will before a notary public.

Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr. Francisco Pañares and Atty.
Angel H. Teves, Jr., one of them, the last named, is at the same time the Notary Public before whom the will was
supposed to have been acknowledged. Reduced to simpler terms, the question was attested and subscribed by at
least three credible witnesses in the presence of the testator and of each other, considering that the three attesting
witnesses must appear before the notary public to acknowledge the same. As the third witness is the notary public
himself, petitioner argues that the result is that only two witnesses appeared before the notary public to acknowledge
the will. On the other hand, private respondent-appellee, Manuel B. Lugay, who is the supposed executor of the will,
following the reasoning of the trial court, maintains that there is substantial compliance with the legal requirement of
having at least three attesting witnesses even if the notary public acted as one of them, bolstering up his stand with
57 American Jurisprudence, p. 227 which, insofar as pertinent, reads as follows:

It is said that there are, practical reasons for upholding a will as against the purely technical reason
that one of the witnesses required by law signed as certifying to an acknowledgment of the
testator's signature under oath rather than as attesting the execution of the instrument.

After weighing the merits of the conflicting claims of the parties, We are inclined to sustain that of the appellant that
the last will and testament in question was not executed in accordance with law. The notary public before whom the
will was acknowledged cannot be considered as the third instrumental witness since he cannot acknowledge before
himself his having signed the will. To acknowledge before means to avow (Javellana v. Ledesma, 97 Phil. 258, 262;
Castro v. Castro, 100 Phil. 239, 247); to own as genuine, to assent, to admit; and "before" means in front or
preceding in space or ahead of. (The New Webster Encyclopedic Dictionary of the English Language, p. 72; Funk &
Wagnalls New Standard Dictionary of the English Language, p. 252; Webster's New International Dictionary 2d. p.
245.) Consequently, if the third witness were the notary public himself, he would have to avow assent, or admit his
having signed the will in front of himself. This cannot be done because he cannot split his personality into two so that
one will appear before the other to acknowledge his participation in the making of the will. To permit such a situation
to obtain would be sanctioning a sheer absurdity.

Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral arrangement
Balinon v. De Leon, 50 0. G. 583.) That function would defeated if the notary public were one of the attesting
instrumental witnesses. For them he would be interested sustaining the validity of the will as it directly involves him
and the validity of his own act. It would place him in inconsistent position and the very purpose of acknowledgment,
which is to minimize fraud (Report of Code Commission p. 106-107), would be thwarted.

Admittedly, there are American precedents holding that notary public may, in addition, act as a witness to the
executive of the document he has notarized. (Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA 482; Sawyer v.
Cox, 43 Ill. 130). There are others holding that his signing merely as notary in a will nonetheless makes him a witness
thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d.
911, Tyson Utterback, 122 So. 496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 A. 721; See
also Trenwith v. Smallwood, 15 So. 1030). But these authorities do not serve the purpose of the law in this jurisdiction
or are not decisive of the issue herein because the notaries public and witnesses referred to aforecited cases merely
acted as instrumental, subscribing attesting witnesses, and not as acknowledging witnesses. He the notary public
acted not only as attesting witness but also acknowledging witness, a situation not envisaged by Article 805 of the
Civil Code which reads:
 ART. 806. Every will must be acknowledged before a notary public by the testator and the
witnesses. The notary public shall not be required to retain a copy of the will or file another with the
office of the Clerk of Court. [Emphasis supplied]

To allow the notary public to act as third witness, or one the attesting and acknowledging witnesses, would have the
effect of having only two attesting witnesses to the will which would be in contravention of the provisions of Article 80
be requiring at least three credible witnesses to act as such and of Article 806 which requires that the testator and the
required number of witnesses must appear before the notary public to acknowledge the will. The result would be, as
has been said, that only two witnesses appeared before the notary public for or that purpose. In the circumstances,
the law would not be duly in observed.

FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate of the last will and
testament of Valente Z. Cruz (Exhibit "E") is declared not valid and hereby set aside.

Cost against the appellee.

Makalintal, C.J., Castro, Teehankee, Makasiar and Muñoz Palma, JJ., concur.

G.R. No. 6845 September 1, 1914

YAP TUA, petitioner-appellee,

vs.
YAP CA KUAN and YAP CA KUAN, objectors-appellants.

Chicote and Miranda for appellants.

O'Brien and DeWitt for appellee.

JOHNSON, J.:

It appears from the record that on the 23d day of August, 1909, one Perfecto Gabriel, representing the petitioner, Yap
Tua, presented a petition in the Court of First Instance of the city of Manila, asking that the will of Tomasa Elizaga
Yap Caong be admitted to probate, as the last will and testament of Tomasa Elizaga Yap Caong, deceased. It
appears that the said Tomasa Elizaga Yap Caong died in the city of Manila on the 11th day of August, 1909.
Accompanying said petition and attached thereto was the alleged will of the deceased. It appears that the will was
signed by the deceased, as well as Anselmo Zacarias, Severo Tabora, and Timoteo Paez.

Said petition, after due notice was given, was brought on for hearing on the 18th day of September, 1909. Timoteo
Paez declared that he was 48 years of age; that he had known the said Tomasa Elizaga Yap Caong; that she had
died on the 11th day of August, 1909; that before her death she had executed a last will and testament; that he was
present at the time of the execution of the same; that he had signed the will as a witness; that Anselmo Zacarias and
Severo Tabora had also signed said will as witnesses and that they had signed the will in the presence of the
deceased.

Pablo Agustin also declared as a witness and said that he was 40 years of age; that he knew Tomasa Elizaga Yap
Caong during her lifetime; that she died on the 11th day of August, 1909, in the city of Manila; that before her death
she had executed a last will and testament; that he was present at the time said last will was executed; that there
were also present Timoteo Paez and Severo Tabora and a person called Anselmo; that the said Tomasa Elizaga Yap
Caong signed the will in the presence of the witnesses; that he had seen her sign the will with his own eyes; that the
witnesses had signed the will in the presence of the said Tomasa Elizaga Yap Caong and in the presence of each
other; that the said Tomasa Elizaga Yap Caong signed the will voluntarily, and in his judgment, she was in the
possession of her faculties; that there were no threats or intimidation used to induce her to sign the will; that she
signed it voluntarily.

No further witnesses were called and there was no further opposition presented to the legalization of the said will.
After hearing the foregoing witnesses, the Honorable A. S. Crossfield, judge, on the 29th day of September, 1909,
ordered that the last will and testament of Tomasa Elizaga Yap Caong be allowed and admitted to probate. The will
was attached to the record and marked Exhibit A. The court further ordered that one Yap Tua be appointed as
executor of the will, upon the giving of a bond, the amount of which was to be fixed later.

From the record it appears that no further proceedings were had until the 28th of February, 1910, when Yap Ca Kuan
and Yap Ca Llu appeared and presented a petition, alleging that they were interested in the matters of the said will
and desired to intervene and asked that a guardian ad litem be appointed to represent them in the cause.

On the 1st day of March, 1910, the court appointed Gabriel La O as guardian ad litem of said parties. Gabriel La O
accepted said appointment, took the oath of office and entered upon the performance of his duties as guardian ad
litem of said parties. On the 2d day of March, 1910, the said Gabriel La O appeared in court and presented a motion
in which he alleged, in substance:

First. That the will dated the 11th day of August, 1909, and admitted to probate by order of the court on the 29th day
of September, 1909, was null, for the following reasons:

(a) Because the same had not been authorized nor signed by the witnesses as the law prescribes.

(b) Because at the time of the execution of the will, the said Tomasa Elizaga Yap Caong was not then
mentally capacitated to execute the same, due to her sickness.

(c) Because her signature to the will had been obtained through fraud and illegal influence upon the part of
persons who were to receive a benefit from the same, and because the said Tomasa Elizaga Yap Caong
had no intention of executing the same.

Second. That before the execution of the said will, which they alleged to be null, the said Tomasa Elizaga Yap Caong
had executed another will, with all the formalities required by law, upon the 6th day of August, 1909.

Third. That the said Yap Ca Kuan and Yap Ca Llu were minors and that, even though they had been negligent in
presenting their opposition to the legalization of the will, said negligence was excusable, on account of their age.

Upon the foregoing facts the court was requested to annul and set aside the order of the 29th day of September,
1909, and to grant to said minors an opportunity to present new proof relating to the due execution of said will. Said
petition was based upon the provisions of section 113 of the Code of Procedure in Civil Actions.

While it is not clear from the record, apparently the said minors in their petition for a new trial, attached to said petition
the alleged will of August 6, 1909, of the said Tomasa Elizaga Yap Caong, and the affidavits of Severo Tabora,
Clotilde and Cornelia Serrano.

Upon the 10th day of March, 1910, upon the hearing of said motion for a rehearing, the Honorable A. S. Crossfield,
judge, granted said motion and ordered that the rehearing should take place upon the 18th day of March, 1910, and
directed that notice should be given to the petitioners of said rehearing and to all other persons interested in the will.
At the rehearing a number of witnesses were examined.

It will be remembered that one of the grounds upon which the new trial was requested was that the deceased,
Tomasa Elizaga Yap Caong, had not signed the will (Exhibit A) of the 11th of August, 1909; that in support of that
allegation, the protestants, during the rehearing, presented a witness called Tomas Puzon. Puzon testified that he
was a professor and an expert in handwriting, and upon being shown the will (of August 11, 1909) Exhibit A, testified
that the name and surname on Exhibit A, in his judgment were written by two different hands, though the given name
is the same as that upon Exhibit 1 (the will of August 6, 1909), because he found in the name "Tomasa" on Exhibit A
a similarity in the tracing to the "Tomasa" in Exhibit 1; that comparing the surname on Exhibit A with the surname on
Exhibit 1 he found that the character of the writing was thoroughly distinguished and different by the tracing and by
the direction of the letters in the said two exhibits; that from his experience and observation he believed that the name
"Tomasa" and "Yap Caong," appearing in the signature on Exhibit A were written by different person.

Puzon, being cross-examined with reference to his capacity as an expert in handwriting, testified that while he was a
student in the Ateneo de Manila, he had studied penmanship; that he could not tell exactly when that was, except that
he had concluded his course in the year 1882; that since that time he had been a telegraph operator for seventeen
years and that he had acted as an expert in hand- writing in the courts in the provinces.

Gabriel La O was called as a witness during the rehearing and testified that he had drawn the will of the 6th of
August, 1909, at the request of Tomasa Elizaga Yap Caong; that it was drawn in accordance with her request and
under her directions; that she had signed it; that the same had been signed by three witnesses in her presence and in
the presence of each other; that the will was written in her house; that she was sick and was lying in her bed, but that
she sat up to sign the will; that she signed the will with great difficulty; that she was signed in her right mind.

The said Severo Tabora was also called as a witness again during the rehearing. He testified that he knew Tomasa
Elizaga Yap Caong during her lifetime; that she was dead; that his signature as a witness to Exhibit A (the will of
August 11, 1909) was placed there by him; that the deceased, Tomasa Elizaga Yap Caong, became familiar with the
contents of the will because she signed it before he (the witness) did; that he did not know whether anybody there
told her to sign the will or not; that he signed two bills; that he did not know La O; that he did not believe that Tomasa
had signed the will (Exhibit A) before he arrived at the house; that he was not sure that he had seen Tomasa Elizaga
Yap Caong sign Exhibit A because there were many people and there was a screen at the door and he could not see;
that he was called a a witness to sign the second will and was told by the people there that it was the same as the
first; that the will (Exhibit A) was on a table, far from the patient, in the house but outside the room where the patient
was; that the will was signed by Paez and himself; that Anselmo Zacarias was there; that he was not sure whether
Anselmo Zacarias signed the will or not; that he was not sure whether Tomasa Elizaga Yap Caong could see the
table on which the will was written at the time it was signed or not; that there were many people in the house; that he
remembered the names of Pedro and Lorenzo; that he could not remember the names of any others; that the will
remained on the table after he signed it; that after he signed the will he went to the room where Tomasa was lying;
that the will was left on the table outside; that Tomasa was very ill; that he heard the people asking Tomasa to sign
the will after he was (the witness) had signed it; that he saw Paez sign the will, that he could not remember whether
Anselmo Zacarias had signed the will, because immediately after he and Paez signed it, he left because he was
hungry; that the place where the table was located was in the same house, on the floor, about two steps down from
the floor on which Tomasa was.

Rufino R. Papa, was called as a witness for the purpose of supporting the allegation that Tomasa Elizaga Yap Caong
was mentally incapacitated to make the will dated August 11, 1909 (Exhibit A). Papa declared that he was a
physician; that he knew Tomasa Elizaga Yap Caong; that he had treated her in the month of August; that he visited
her first on the 8th day of August; that he visited her again on the 9th and 10th days of August; that on the first visit he
found the sick woman completely weak — very weak from her sickness, in the third stage of tuberculosis; that she
was lying in bed; that on the first visit he found her with but little sense, the second day also, and on the third day she
had lost all her intelligence; that she died on the 11th of August; tat he was requested to issue the death certificate;
that when he asked her (Tomasa) whether she was feeling any pain or anything of that kind, she did not answer at
all; that she was in a condition of stupor, induced, as he believed, by the stage of uraemia from which she was
suffering.

Anselmo Zacarias, who had signed the will of August 11, 1909, was also called as a witnesses during the rehearing.
He testified that he had known Tomasa Elizaga Yap Caong since he was a child; that Tomasa was dead; that he had
written the will exhibit A; that it was all in his writing except the last part, which was written by Carlos Sobaco; that he
had written the will Exhibit A at the request of the uncle of Tomasa; that Lorenzo, the brother of the deceased, was
the one who had instructed him as to the terms of the will ; that the deceased had not spoken to him concerning the
terms of the will; that the will was written in the dining room of the residence of the deceased; that Tomasa was in
another room different from that in which the will was written; that the will was not written in the presence of Tomasa;
that he signed the will as a witness in the room where Tomasa was lying; that the other witnesses signed the will in
the same room that when he went into the room where the sick woman was (Tomasa Elizaga Yap Caong) Lorenzo
had the will in his hands; that when Lorenzo came to the bed he showed the will to his sister (Tomasa) and requested
her to sign it; that she was lying stretched out on the bed and two women, who were taking care of her, helped her to
sit up, supporting her by lacing their hands at her back; that when she started to write her name, he withdrew from the
bed on account of the best inside the room; when he came back again to the sick bed the will was signed and was
again in the hands of Lorenzo; that he did not see Tomasa sign the will because he withdrew from the room; that he
did not know whether Tomasa had been informed of the contents of the will or not; he supposed she must have read
it because Lorenzo turned the will over to her; that when Lorenzo asked her to sign the will, he did not know what she
said — he could not hear her voice; that he did not know whether the sick woman was him sign the will or not; that he
believed that Tomasa died the next day after the will had been signed; that the other two witnesses, Timoteo Paez
and Severo Tabora, had signed the will in the room with the sick woman; that he saw them sign the will and that they
saw him sign it; that he was not sure whether the testatrix could have seen them at the time they signed the will or
not; that there was a screen before the bed; that he did not think that Lorenzo had been giving instructions as to the
contents of the will; that about ten or fifteen minutes elapsed from the time Lorenzo handed the will to Tomasa before
she started to sign it; that the pen with which she signed the will as given to her and she held it.

Clotilde Mariano testified that he was a cigarette maker; that he knew Tomasa Elizaga Yap Caong and that she was
dead; that she had made two wills; that the first one was written by La O and the second by Zacarias; that he was
present at the time Zacarias wrote the second one; that he was present when the second will was taken to Tomasa
for signature; that Lorenzo had told Tomasa that the second will was exactly like the first; that Tomasa said she could
not sign it.

On cross examination he testified that there was a lot of visitors there; that Zacarias was not there; that Paez and
Tabora were there; that he had told Tomasa that the second will was exactly like the first.

During the rehearing Cornelia Serrano and Pedro Francisco were also examined as witnesses. There is nothing in
their testimony, however, which in our opinion is important.

In rebuttal Julia e la Cruz was called as a witness. She testified that she was 19 years of age; that she knew Tomasa
Elizaga Yap Caong during her lifetime; that she lived in the house of Tomasa during the last week of her illness; that
Tomasa had made two wills; that she was present when the second one was executed; that a lawyer had drawn the
will in the dining room and after it had been drawn and everything finished , it was taken to where Doña Tomasa was,
for her signature; that it was taken to her by Anselmo Zacarias; that she was present at the time Tomasa signed the
will that there were many other people present also; that she did not see Timoteo Paez there; that she saw Severo
Tabora; that Anselmo Zacarias was present; that she did not hear Clotilde Mariano ask Tomasa to sign the will; that
she did not hear Lorenzo say to Tomasa that the second will was the same sa the first; that Tomasa asked her to
help her to sit up and to put a pillow to her back when Zacarias gave her some paper or document and asked her to
sign it; that she saw Tomasa take hold of the pen and try to sign it but she did not see the place she signed the
document, for the reason that she left the room; that she saw Tomasa sign the document but did not see on what
place on the document she signed; and that a notary public came the next morning; that Tomasa was able to move
about in the bed; that she had seen Tomasa in the act of starting to write her signature when she told her to get her
some water.

Yap Cao Quiang was also called as a witness in rebuttal. He testified that he knew Tomasa Elizaga Yap Caong and
knew that she had made a will; that he saw the will at the time it was written; that he saw Tomasa sign it on her head;
that he did not hear Lorenzo ask Tomasa to sign the will; that Lorenzo had handed the will to Tomasa to sign; that he
saw the witnesses sign the will on a table near the bed; that the table was outside the curtain or screen and near the
entrance to the room where Tomasa was lying.

Lorenzo Yap Caong testified as a witness on rebuttal. He said that he knew Anselmo Zacarias and that Zacarias
wrote the will of Tomasa Elizaga Yap Caong; that Tomasa had given him instructions; that Tomasa had said that she
sign the will; that the will was on a table near the bed of Tomasa; that Tomasa, from where she was lying in the bed,
could seethe table where the witnesses had signed the will.

During the rehearing certain other witnesses were also examined; in our opinion, however, it is necessary to quote
from them for the reason that their testimony in no way affects the preponderance of proof above quoted.

At the close of the rehearing the Honorable A. S. Crossfield, judge, in an extended opinion, reached the conclusion
that the last will and testament of Tomasa Elizaga Yap Caong, which was attached to the record and marked Exhibit
A was the last will and testament of the said Tomasa Elizaga Yap Caong and admitted it to probate and ordered that
the administrator therefore appointed should continue as such administrator. From that order the protestants
appealed to this court, and made the following assignments of error:

I. The court erred in declaring that the will, Exhibit A, was executed by the deceased Tomasa Yap Caong,
without the intervention of any external influence on the part of other persons.

II. The court erred in declaring that the testator had clear knowledge and knew what she was doing at the
time of signing the will.

III. The court erred in declaring that the signature of the deceased Tomasa Yap Caong in the first will,
Exhibit 1, is identical with that which appears in the second will, Exhibit A.
 IV. The court erred in declaring that the will, Exhibit A, was executed in accordance with the law.

With reference to the first assignment of error, to wit, that undue influence was brought to bear upon Tomasa Elizaga
Yap Caong in the execution of her will of August 11th, 1909 (Exhibit A), the lower court found that no undue influence
had been exercised over the mind of the said Tomasa Elizaga Yap Caong. While it is true that some of the witnesses
testified that the brother of Tomasa, one Lorenzo, had attempted to unduly influence her mind in the execution of he
will, upon the other hand, there were several witnesses who testified that Lorenzo did not attempt, at the time of the
execution of the will, to influence her mind in any way. The lower court having had an opportunity to see, to hear, and
to note the witnesses during their examination reached the conclusion that a preponderance of the evidence showed
that no undue influence had been used. we find no good reason in the record for reversing his conclusions upon that
question.

With reference to the second assignment of error to wit, that Tomasa Elizaga Yap Caong was not of sound mind and
memory at the time of the execution of the will, we find the same conflict in the declarations of the witnesses which
we found with reference to the undue influence. While the testimony of Dr. Papa is very strong relating to the mental
condition of Tomasa Elizaga Yap Caong, yet, nevertheless, his testimony related to a time perhaps twenty-four hours
before the execution of the will in question (Exhibit A). Several witnesses testified that at the time the will was
presented to her for her signature, she was of sound mind and memory and asked for a pen and ink and kept the will
in her possession for ten or fifteen minutes and finally signed it. The lower court found that there was a
preponderance of evidence sustaining the conclusion that Tomasa Elizaga Yap Caong was of sound mind and
memory and in the possession of her faculties at the time she signed this will. In view of the conflict in the testimony
of the witnesses and the finding of the lower court, we do not feel justified in reversing his conclusions upon that
question.

With reference to the third assignment of error, to wit, that the lower court committed an error in declaring that the
signature of Tomasa Elizaga Yap Caong, on her first will (August 6, 1909, Exhibit 1), is identical with that which
appears in the second will (August 11, 1909, Exhibit A), it may be said:

First. That whether or not Tomasa Elizaga Yap Caong executed the will of August 6, 1909 (Exhibit 1), was not the
question presented to the court. The question presented was whether or not she had duly executed the will of August
11, 1909 (Exhibit A).

Second. There appears to be but little doubt that Tomasa Elizaga Yap Caong did execute the will of August 6, 1909.
Several witnesses testified to that fact. The mere fact, however, that she executed a former will is no proof that she
did not execute a later will. She had a perfect right, by will, to dispose of her property, in accordance with the
provisions of law, up to the very last of moment her life. She had a perfect right to change, alter, modify or revoke any
and all of her former wills and to make a new one. Neither will the fact that the new will fails to expressly revoke all
former wills, in any way sustain the charge that she did not make the new will.

Third. In said third assignment of error there is involved in the statement that "The signature of Tomasa Elizaga Yap
Caong, in her first will (Exhibit 1) was not identical with that which appears in her second will (Exhibit A)" the inference
that she had not signed the second will and all the argument of the appellants relating to said third assignment of
error is based upon the alleged fact that Tomasa Elizaga Yap Caong did not sign Exhibit A. Several witnesses
testified that they saw her write the name "Tomasa." One of the witnesses testified that she had written her full name.
We are of the opinion, and we think the law sustains our conclusion, that if Tomasa Elizaga Yap Caong signed any
portion of her name tot he will, with the intention to sign the same, that the will amount to a signature. It has been held
time and time again that one who makes a will may sign the same by using a mark, the name having been written by
others. If writing a mark simply upon a will is sufficient indication of the intention of the person to make and execute a
will, then certainly the writing of a portion or all of her name ought to be accepted as a clear indication of her intention
to execute the will. (Re Goods of Savory, 15 Jur., 1042; Addy vs. Grix, 8 Ves. Jr., 504; Baker vs. Dening, 8 Ad. and
El., 94 Long vs. Zook, 13 Penn., 400; Vernon vs. Kirk, 30 Penn., 218; Cozzen's Will, 61 Penn., 196; Re Goods of
Emerson, L. R. 9 Ir., 443; Main vs. Ryder, 84 Penn., 217.)

We find a very interesting case reported in 131 Pennsylvania State, 220 (6 L. R. A., 353), and cited by the appellees,
which was known as "Knox's Appeal." In this case one Harriett S. Knox died very suddenly on the 17th of October,
1888, at the residence of her father. After her death a paper was found in her room, wholly in her handwriting, written
with a lead pencil, upon three sides of an ordinary folded sheet of note paper and bearing the signature simply of
"Harriett." In this paper the deceased attempted to make certain disposition of her property. The will was presented
for probate. The probation was opposed upon the ground that the same did not contain the signature of the
deceased. That was the only question presented to the court, whether the signature, in the form above indicated, was
a sufficient signature to constitute said paper the last will and testament of Harriett S. Knox. It was admitted that the
entire paper was in the handwriting of the deceased. In deciding that question, Justice Mitchell said:

The precise case of a signature by the first name only, does not appear to have arisen either in England or
the United States; but the principle on which the decisions already referred to were based, especially those
in regard to signing by initials only, are equally applicable to the present case, and additional force is given
to them by the decisions as to what constitutes a binding signature to a contract. (Palmer vs. Stephens, 1
Denio, 478; Sanborne vs. Flager, 9 Alle, 474; Weston vs. Myers, 33 Ill., 424; Salmon Falls, etc. Co. vs.
Goddard, 14 How. (U. S.), 446.)

The man who cannot write and who is obliged to make his mark simply therefor, upon the will, is held to "sign" as
effectually as if he had written his initials or his full name. It would seem to be sufficient, under the law requiring a
signature by the person making a will, to make his mark, to place his initials or all or any part of his name thereon. In
the present case we think the proof shows, by a large preponderance, that Tomasa Elizaga Yap Caong, if she did not
sign her full name, did at least sign her given name "Tomasa," and that is sufficient to satisfy the statute.

With reference to the fourth assignment of error, it may be said that the argument which was preceded is sufficient to
answer it also.

During the trial of the cause the protestants made a strong effort to show that Tomasa Elizaga Yap Caong did not
sign her name in the presence of the witnesses and that they did not sign their names in their presence nor in the
presence of each other. Upon that question there is considerable conflict of proof. An effort was made to show that
the will was signed by the witnesses in one room and by Tomasa in another. A plan of the room or rooms in which the
will was signed was presented as proof and it was shown that there was but one room; that one part of the room was
one or two steps below the floor of the other; that the table on which the witnesses signed the will was located upon
the lower floor of the room. It was also shown that from the bed in which Tomasa was lying, it was possible for her to
see the table on which the witnesses signed the will. While the rule is absolute that one who makes a will must sign
the same in the presence of the witnesses and that the witnesses must sign in the presence of each other, as well as
in the presence of the one making the will, yet, nevertheless, the actual seeing of the signatures made is not
necessary. It is sufficient if the signatures are made where it is possible for each of the necessary parties, if they
desire to see, may see the signatures placed upon the will.

In cases like the present where there is so much conflict in the proof, it is very difficult for the courts to reach
conclusions that are absolutely free from doubt. Great weight must be given by appellate courts who do not see or
hear the witnesses, to the conclusions of the trial courts who had that opportunity.

Upon a full consideration of the record, we find that a preponderance of the proof shows that Tomasa Elizaga Yap
Caong did execute, freely and voluntarily, while she was in the right use of all her faculties, the will dated August 11,
1909 (Exhibit A). Therefore the judgment of the lower court admitting said will to probate is hereby affirmed with
costs.

Arellano, C. J., Torres, Carson, Moreland and Araullo, JJ., concur.

G.R. No. L-13431 November 12, 1919

In re will of Ana Abangan.

GERTRUDIS ABANGAN, executrix-appellee,
vs.
ANASTACIA ABANGAN, ET AL., opponents-appellants.

Filemon Sotto for appellants.

M. Jesus Cuenco for appellee.
AVANCEÑA, J.:

On September 19, 1917, the Court of First Instance of Cebu admitted to probate Ana Abangan's will executed July,
1916. From this decision the opponent's appealed.

Said document, duly probated as Ana Abangan's will, consists of two sheets, the first of which contains all of the
disposition of the testatrix, duly signed at the bottom by Martin Montalban (in the name and under the direction of the
testatrix) and by three witnesses. The following sheet contains only the attestation clause duly signed at the bottom
by the three instrumental witnesses. Neither of these sheets is signed on the left margin by the testatrix and the three
witnesses, nor numbered by letters; and these omissions, according to appellants' contention, are defects whereby
the probate of the will should have been denied. We are of the opinion that the will was duly admitted to probate.

In requiring that each and every sheet of the will should also be signed on the left margin by the testator and three
witnesses in the presence of each other, Act No. 2645 (which is the one applicable in the case) evidently has for its
object (referring to the body of the will itself) to avoid the substitution of any of said sheets, thereby changing the
testator's dispositions. But when these dispositions are wholly written on only one sheet signed at the bottom by the
testator and three witnesses (as the instant case), their signatures on the left margin of said sheet would be
completely purposeless. In requiring this signature on the margin, the statute took into consideration, undoubtedly,
the case of a will written on several sheets and must have referred to the sheets which the testator and the witnesses
do not have to sign at the bottom. A different interpretation would assume that the statute requires that this sheet,
already signed at the bottom, be signed twice. We cannot attribute to the statute such an intention. As these
signatures must be written by the testator and the witnesses in the presence of each other, it appears that, if the
signatures at the bottom of the sheet guaranties its authenticity, another signature on its left margin would be
unneccessary; and if they do not guaranty, same signatures, affixed on another part of same sheet, would add
nothing. We cannot assume that the statute regards of such importance the place where the testator and the
witnesses must sign on the sheet that it would consider that their signatures written on the bottom do not guaranty the
authenticity of the sheet but, if repeated on the margin, give sufficient security.

In requiring that each and every page of a will must be numbered correlatively in letters placed on the upper part of
the sheet, it is likewise clear that the object of Act No. 2645 is to know whether any sheet of the will has been
removed. But, when all the dispositive parts of a will are written on one sheet only, the object of the statute
disappears because the removal of this single sheet, although unnumbered, cannot be hidden.

What has been said is also applicable to the attestation clause. Wherefore, without considering whether or not this
clause is an essential part of the will, we hold that in the one accompanying the will in question, the signatures of the
testatrix and of the three witnesses on the margin and the numbering of the pages of the sheet are formalities not
required by the statute. Moreover, referring specially to the signature of the testatrix, we can add that same is not
necessary in the attestation clause because this, as its name implies, appertains only to the witnesses and not to the
testator since the latter does not attest, but executes, the will.

Synthesizing our opinion, we hold that 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.

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 primordal ends. But, on the other hand, also one must
not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a
will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds
nothing but demands more requisites entirely unnecessary, useless and frustative of the testator's last will, must be
disregarded. lawphil.net

As another ground for this appeal, it is alleged the records do not show that the testarix knew the dialect in which the
will is written. But the circumstance appearing in the will itself that same was executed in the city of Cebu and in the
dialect of this locality where the testatrix was a neighbor is enough, in the absence of any proof to the contrary, to
presume that she knew this dialect in which this will is written.

For the foregoing considerations, the judgment appealed from is hereby affirmed with costs against the appellants.
So ordered.

Arellano, C.J., Torres, Johnson, Araullo, Street and Malcolm, JJ., concur.

G.R. No. L-1787 August 27, 1948

Testacy of Sixto Lopez. JOSE S. LOPEZ, petitioner-appellee,

vs.
AGUSTIN LIBORO, oppositor-appellant.

Tirona, Gutierrez and Adorable for appellant.

Ramon Diokno for appellee.

TUASON, J.:

In the Court of First Instance of Batangas the appellant opposed unsuccessfully the probate of what purports to be
the last will and testament (Exhibit A) of Don Sixto Lopez, who died at the age of 83 in Balayan, Batangas, on March
3, 1947, almost six months after the document in question was executed. In the court below, the present appellant
specified five grounds for his opposition, to wit: (1) that the deceased never executed the alleged will; (2) that his
signature appearing in said will was a forgery; (3) that at the time of the execution of the will, he was wanting in
testamentary as well as mental capacity due to advanced age; (4) that, if he did ever execute said will, it was not
executed and attested as required by law, and one of the alleged instrumental witnesses was incapacitated to act as
such; and it was procured by duress, influence of fear and threats and undue and improper pressure and influence on
the part of the beneficiaries instituted therein, principally the testator's sister, Clemencia Lopez, and the herein
proponent, Jose S. Lopez; and (5) that the signature of the testator was procured by fraud or trick.

In this instance only one of these objections is reiterated, formulated in these words: "That the court a quo erred in
holding that the document Exhibit "A" was executed in all particulars as required by law." To this objection is added
the alleged error of the court "in allowing the petitioner to introduce evidence that Exhibit "A" was written in a
language known to the decedent after petitioner rested his case and over the vigorous objection of the oppositor.

The will in question comprises two pages, each of which is written on one side of a separate sheet. The first sheet is
not paged either in letters or in Arabic numerals. This, the appellant believes, is a fatal defect.

The purpose of the law in prescribing the paging of wills is guard against fraud, and to afford means of preventing the
substitution or of defecting the loss of any of its pages. (Abangan vs. Abangan, 40 Phil., 476.) In the present case, the
omission to put a page number on the first sheet, if that be necessary, is supplied by other forms of identification
more trustworthy than the conventional numerical words or characters. The unnumbered page is clearly identified as
the first page by the internal sense of its contents considered in relation to the contents of the second page. By their
meaning and coherence, the first and second lines on the second page are undeniably a continuation of the last
sentence of the testament, before the attestation clause, which starts at the bottom of the preceding page.
Furthermore, the unnumbered page contains the caption "TESTAMENTO," the invocation of the Almighty, and a
recital that the testator was in full use of his testamentary faculty, — all of which, in the logical order of sequence,
precede the direction for the disposition of the marker's property. Again, as page two contains only the two lines
above mentioned, the attestation clause, the mark of the testator and the signatures of the witnesses, the other sheet
can not by any possibility be taken for other than page one. Abangan vs. Abangan, supra, and Fernandez vs. Vergel
de Dios, 46 Phil., 922 are decisive of this issue.

Although not falling within the purview and scope of the first assignment of error, the matter of the credibility of the
witnesses is assailed under this heading. On the merits we do not believe that the appellant's contention deserves
serious consideration. Such contradictions in the testimony of the instrumental witnesses as are set out in the
appellant's brief are incidents not all of which every one of the witnesses can be supposed to have perceived, or to
recall in the same order in which they occurred.

Everyday life and the result of investigations made in the field of experimental psychology show that the
contradictions of witnesses generally occur in the details of a certain incident, after a long series of
questioning, and far from being an evidence of falsehood constitute a demonstration of good faith. Inasmuch
as not all those who witness an incident are impressed in like manner, it is but natural that in relating their
impressions they should not agree in the minor details; hence, the contradictions in their testimony. (People
vs. Limbo, 49 Phil., 99.)

The testator affixed his thumbmark to the instrument instead of signing his name. The reason for this was that the
testator was suffering from "partial paralysis." While another in testator's place might have directed someone else to
sign for him, as appellant contends should have been done, there is nothing curious or suspicious in the fact that the
testator chose the use of mark as the means of authenticating his will. It was a matter of taste or preference. Both
ways are good. A statute requiring a will to be "signed" is satisfied if the signature is made by the testator's mark. (De
Gala vs. Gonzales and Ona, 53 Phil., 108; 28 R. C. L., 117.)

With reference to the second assignment of error, we do not share the opinion that the trial court communicated an
abuse of discretion in allowing the appellant to offer evidence to prove knowledge of Spanish by the testator, the
language in which the will is drawn, after the petitioner had rested his case and after the opponent had moved for
dismissal of the petition on the ground of insufficiency of evidence. It is within the discretion of the court whether or
not to admit further evidence after the party offering the evidence has rested, and this discretion will not be reviewed
except where it has clearly been abused. (64 C. J., 160.) More, it is within the sound discretion of the court whether or
not it will allow the case to be reopened for the further introduction of evidence after a motion or request for a nonsuit,
or a demurrer to the evidence, and the case may be reopened after the court has announced its intention as to its
ruling on the request, motion, or demurrer, or has granted it or has denied the same, or after the motion has been
granted, if the order has not been written, or entered upon the minutes or signed. (64 C. J., 164.)

In this jurisdiction this rule has been followed. After the parties have produced their respective direct proofs, they are
allowed to offer rebutting evidence only, but, it has been held, the court, for good reasons, in the furtherance of
justice, may permit them to offer evidence upon their original case, and its ruling will not be disturbed in the appellate
court where no abuse of discretion appears. (Siuliong and Co. vs. Ylagan, 43 Phil., 393; U. S. vs. Alviar, 36 Phil.,
804.) So, generally, additional evidence is allowed when it is newly discovered, or where it has been omitted through
inadvertence or mistake, or where the purpose of the evidence is to the evidence is to correct evidence previously
offered. (I Moran's Comments on the Rules of Court, 2d ed., 545; 64 C. J., 160-163.) The omission to present
evidence on the testator's knowledge of Spanish had not been deliberate. It was due to a misapprehension or
oversight.

Although alien to the second assignment of error, the appellant impugns the will for its silence on the testator's
understanding of the language used in the testament. There is no statutory requirement that such knowledge be
expressly stated in the will itself. It is a matter that may be established by proof aliunde. This Court so impliedly ruled
in Gonzales vs. Laurel, 46 Phil., 781, in which the probate of a will written in Tagalog was ordered although it did not
say that the testator knew that idiom. In fact, there was not even extraneous proof on the subject other than the fact
that the testator resided in a Tagalog region, from which the court said "a presumption arises that said Maria Tapia
knew the Tagalog dialect.

The order of the lower court ordering the probate of the last will and testament of Don Sixto Lopez is affirmed, with
costs.

Paras, Pablo, Perfecto, Bengzon, Briones and Padilla, JJ., concur.

G.R. No. L-4067 November 29, 1951

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.

Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.

Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.

PARAS, C.J.:

This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado dated January 3,
1943. The will is written in the Ilocano dialect and contains the following attestation clause:

We, the undersigned, by these presents to declare that the foregoing testament of Antero Mercado was
signed by himself and also by us below his name and of this attestation clause and that of the left margin of
the three pages thereof. Page three the continuation of this attestation clause; this will is written in Ilocano
dialect which is spoken and understood by the testator, and it bears the corresponding number in letter
which compose of three pages and all them were signed in the presence of the testator and witnesses, and
the witnesses in the presence of the testator and all and each and every one of us witnesses.

In testimony, whereof, we sign this statement, this the third day of January, one thousand nine hundred forty
three, (1943) A.D.

(Sgd.) NUMERIANO EVANGELISTA (Sgd.) "ROSENDA CORTES

(Sgd.) BIBIANA ILLEGIBLE

The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero Mercado, followed
below by "A reugo del testator" and the name of Florentino Javier. Antero Mercado is alleged to have written a cross
immediately after his name. The Court of Appeals, reversing the judgement of the Court of First Instance of Ilocos
Norte, ruled that the attestation clause failed (1) to certify that the will was signed on all the left margins of the three
pages and at the end of the will by Atty. Florentino Javier at the express request of the testator in the presence of the
testator and each and every one of the witnesses; (2) to certify that after the signing of the name of the testator by
Atty. Javier at the former's request said testator has written a cross at the end of his name and on the left margin of
the three pages of which the will consists and at the end thereof; (3) to certify that the three witnesses signed the will
in all the pages thereon in the presence of the testator and of each other.

In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado caused Atty. Florentino
Javier to write the testator's name under his express direction, as required by section 618 of the Code of Civil
Procedure. The herein petitioner (who is appealing by way of certiorari from the decision of the Court of Appeals)
argues, however, that there is no need for such recital because the cross written by the testator after his name is a
sufficient signature and the signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is that the cross is
as much a signature as a thumbmark, the latter having been held sufficient by this Court in the cases of De
Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil., 848;
Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.

It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado or even one of
the ways by which he signed his name. After mature reflection, we are not prepared to liken the mere sign of the
cross to a thumbmark, and the reason is obvious. The cross cannot and does not have the trustworthiness of a
thumbmark.

What has been said makes it unnecessary for us to determine there is a sufficient recital in the attestation clause as
to the signing of the will by the testator in the presence of the witnesses, and by the latter in the presence of the
testator and of each other.

Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So ordered.

Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista Angelo, JJ., concur.
G.R. No. L-36033 November 5, 1982
IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA PEREZ, (deceased):
APOLONIO TABOADA, petitioner,
vs.
HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern Leyte, (Branch III,
Maasin), respondent.

Erasmo M. Diola counsel for petition.

Hon. Avelino S. Rosal in his own behalf.

GUTIERREZ, JR. J.:

This is a petition for review of the orders issued by the Court of First Instance of Southern Leyte, Branch III, in Special
Proceedings No. R-1713, entitled "In the Matter of the Petition for Probate of the Will of Dorotea Perez, Deceased;
Apolonio Taboada, Petitioner", which denied the probate of the will, the motion for reconsideration and the motion for
appointment of a special administrator.

In the petition for probate filed with the respondent court, the petitioner attached the alleged last will and testament of
the late Dorotea Perez. Written in the Cebuano-Visayan dialect, the will consists of two pages. The first page contains
the entire testamentary dispositions and is signed at the end or bottom of the page by the testatrix alone and at the
left hand margin by the three (3) instrumental witnesses. The second page which contains the attestation clause and
the acknowledgment is signed at the end of the attestation clause by the three (3) attesting witnesses and at the left
hand margin by the testatrix.

Since no opposition was filed after the petitioner's compliance with the requirement of publication, the trial court
commissioned the branch clerk of court to receive the petitioner's evidence. Accordingly, the petitioner submitted his
evidence and presented Vicente Timkang, one of the subscribing witnesses to the will, who testified on its
genuineness and due execution.

The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned order denying the probate of the
will of Dorotea Perez for want of a formality in its execution. In the same order, the petitioner was also required to
submit the names of the intestate heirs with their corresponding addresses so that they could be properly notified and
could intervene in the summary settlement of the estate.

Instead of complying with the order of the trial court, the petitioner filed a manifestation and/or motion, ex
partepraying for a thirty-day period within which to deliberate on any step to be taken as a result of the disallowance
of the will. He also asked that the ten-day period required by the court to submit the names of intestate heirs with their
addresses be held in abeyance.

The petitioner filed a motion for reconsideration of the order denying the probate of the will. However, the motion
together with the previous manifestation and/or motion could not be acted upon by the Honorable Ramon C.
Pamatian due to his transfer to his new station at Pasig, Rizal. The said motions or incidents were still pending
resolution when respondent Judge Avelino S. Rosal assumed the position of presiding judge of the respondent court.

Meanwhile, the petitioner filed a motion for the appointment of special administrator.

Subsequently, the new Judge denied the motion for reconsideration as well as the manifestation and/or motion
filed ex parte. In the same order of denial, the motion for the appointment of special administrator was likewise denied
because of the petitioner's failure to comply with the order requiring him to submit the names of' the intestate heirs
and their addresses.

The petitioner decided to file the present petition.

For the validity of a formal notarial will, does Article 805 of the Civil Code require that the testatrix and all the three
instrumental and attesting witnesses sign at the end of the will and in the presence of the testatrix and of one
another?

Article 805 of the Civil Code provides:

Every will, other than a holographic will, must be subscribed at the end thereof by the testator
himself or by the testator's name written by some other person in his presence, and by his express
direction, and attested and subscribed by three or more credible witnesses in the presence of the
testator and of one another.

The testator or the person requested by him to write his name and the instrumental witnesses of
the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left
margin, and all the pages shall be numbered correlatively in letters placed on the upper part of
each page.

The attestation shall state the number of pages used upon which the will is written, and the fact that
the testator signed the will and every page thereof, or caused some other person to write his name,
under his express direction, in the presence of the instrumental witnesses, and that the lacier
witnesses and signed the will and the pages thereof in the presence of the testator and of one
another.

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

The respondent Judge interprets the above-quoted provision of law to require that, for a notarial will to be valid, it is
not enough that only the testatrix signs at the "end" but an the three subscribing witnesses must also sign at the
same place or at the end, in the presence of the testatrix and of one another because the attesting witnesses to a will
attest not merely the will itself but also the signature of the testator. It is not sufficient compliance to sign the page,
where the end of the will is found, at the left hand margin of that page.

On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it a condition precedent
or a matter of absolute necessity for the extrinsic validity of the wig that the signatures of the subscribing witnesses
should be specifically located at the end of the wig after the signature of the testatrix. He contends that it would be
absurd that the legislature intended to place so heavy an import on the space or particular location where the
signatures are to be found as long as this space or particular location wherein the signatures are found is consistent
with good faith and the honest frailties of human nature.

We find the petition meritorious.

Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end by the testator
himself or by the testator's name written by another person in his presence, and by his express direction, and attested
and subscribed by three or more credible witnesses in the presence of the testator and of one another.

It must be noted that the law uses the terms attested and subscribed Attestation consists in witnessing the testator's
execution of the will in order to see and take note mentally that those things are, done which the statute requires for
the execution of a will and that the signature of the testator exists as a fact. On the other hand, subscription is the
signing of the witnesses' names upon the same paper for the purpose of Identification of such paper as the will which
was executed by the testator. (Ragsdale v. Hill, 269 SW 2d 911).

Insofar as the requirement of subscription is concerned, it is our considered view that the will in this case was
subscribed in a manner which fully satisfies the purpose of Identification.

The signatures of the instrumental witnesses on the left margin of the first page of the will attested not only to the
genuineness of the signature of the testatrix but also the due execution of the will as embodied in the attestation
clause.
While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual forms should be
ignored, especially where the authenticity of the will is not assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).

The law is to be liberally construed, "the underlying and fundamental objective permeating the provisions on the law
on wills in this project consists in the liberalization of the manner of their execution with the end in view of giving the
testator more freedom in expressing his last wishes but with sufficient safeguards and restrictions to prevent the
commission of fraud and the exercise of undue and improper pressure and influence upon the testator. This objective
is in accord with the modern tendency in respect to the formalities in the execution of a will" (Report of the Code
commission, p. 103).

Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were not for the defect in the place of
signatures of the witnesses, he would have found the testimony sufficient to establish the validity of the will.

The objects of attestation and of subscription were fully met and satisfied in the present case when the instrumental
witnesses signed at the left margin of the sole page which contains all the testamentary dispositions, especially so
when the will was properly Identified by subscribing witness Vicente Timkang to be the same will executed by the
testatrix. There was no question of fraud or substitution behind the questioned order.

We have examined the will in question and noticed that the attestation clause failed to state the number of pages
used in writing the will. This would have been a fatal defect were it not for the fact that, in this case, it is discernible
from the entire wig that it is really and actually composed of only two pages duly signed by the testatrix and her
instrumental witnesses. As earlier stated, the first page which contains the entirety of the testamentary dispositions is
signed by the testatrix at the end or at the bottom while the instrumental witnesses signed at the left margin. The
other page which is marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "This Last Will and Testament consists of two pages including this page".

In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the following observations with respect to the
purpose of the requirement that the attestation clause must state the number of pages used:

The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645,
which requires that the attestation clause shall state the number of pages or sheets upon which the
win is written, which requirement has been held to be mandatory as an effective safeguard against
the possibility of interpolation or omission of some of the pages of the will to the prejudice of the
heirs to whom the property is intended to be bequeathed (In re will of Andrada, 42 Phil., 180; Uy
Coque vs. Navas L. Sioca, 43 Phil. 405; Gumban vs. Gorecho, 50 Phil. 30; Quinto vs. Morata, 54
Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to be
that the attestation clause must contain a statement of the number of sheets or pages composing
the will and that if this is missing or is omitted, it will have the effect of invalidating the will if the
deficiency cannot be supplied, not by evidence aliunde, but by a consideration or examination of
the will itself. But here the situation is different. While the attestation clause does not state the
number of sheets or pages upon which the will is written, however, the last part of the body of the
will contains a statement that it is composed of eight pages, which circumstance in our opinion
takes this case out of the rigid rule of construction and places it within the realm of similar cases
where a broad and more liberal view has been adopted to prevent the will of the testator from being
defeated by purely technical considerations.

Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a similar liberal approach:

... Impossibility of substitution of this page is assured not only (sic) the fact that the testatrix and two
other witnesses did sign the defective page, but also by its bearing the coincident imprint of the
seal of the notary public before whom the testament was ratified by testatrix and all three
witnesses. The law should not be so strictly and literally interpreted as to penalize the testatrix on
account of the inadvertence of a single witness over whose conduct she had no control where the
purpose of the law to guarantee the Identity of the testament and its component pages is
sufficiently attained, no intentional or deliberate deviation existed, and the evidence on record
attests to the fun observance of the statutory requisites. Otherwise, as stated in Vda. de Gil. Vs.
Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration) 'witnesses may sabotage the
will by muddling or bungling it or the attestation clause.
WHEREFORE, the present petition is hereby granted. The orders of the respondent court which denied the probate
of tile will, the motion for reconsideration of the denial of probate, and the motion for appointment of a special
administrator are set aside. The respondent court is ordered to allow the probate of the wig and to conduct further
proceedings in accordance with this decision. No pronouncement on costs.

SO ORDERED.

Melencio-Herrera (Acting Chairperson), Plana, Vasquez and Relova, JJ., concur.

Teehankee, J, is on leave.

G.R. No. L-5971 February 27, 1911

BEATRIZ NERA, ET AL., plaintiffs-appellees,

vs.
NARCISA RIMANDO, defendant-appellant.

Valerio Fontanilla and Andres Asprer for appellant.

Anacleto Diaz for appellees.

CARSON, J.:

The only question raised by the evidence in this case as to the due execution of the instrument propounded as a will
in the court below, is whether one of the subscribing witnesses was present in the small room where it was executed
at the time when the testator and the other subscribing witnesses attached their signatures; or whether at that time he
was outside, some eight or ten feet away, in a large room connecting with the smaller room by a doorway, across
which was hung a curtain which made it impossible for one in the outside room to see the testator and the other
subscribing witnesses in the act of attaching their signatures to the instrument.

A majority of the members of the court is of opinion that this subscribing witness was in the small room with the
testator and the other subscribing witnesses at the time when they attached their signatures to the instrument, and
this finding, of course, disposes of the appeal and necessitates the affirmance of the decree admitting the document
to probate as the last will and testament of the deceased.

The trial judge does not appear to have considered the determination of this question of fact of vital importance in the
determination of this case, as he was of opinion that under the doctrine laid down in the case of Jaboneta vs.
Gustilo (5 Phil. Rep., 541) the alleged fact that one of the subscribing witnesses was in the outer room when the
testator and the other describing witnesses signed the instrument in the inner room, had it been proven, would not be
sufficient in itself to invalidate the execution of the will. But we are unanimously of opinion that had this subscribing
witness been proven to have been in the outer room at the time when the testator and the other subscribing
witnesses attached their signatures to the instrument in the inner room, it would have been invalid as a will, the
attaching of those signatures under circumstances not being done "in the presence" of the witness in the outer room.
This because the line of vision from this witness to the testator and the other subscribing witnesses would necessarily
have been impeded by the curtain separating the inner from the outer one "at the moment of inscription of each
signature."

In the case just cited, on which the trial court relied, we held that:

The true test of presence of the testator and the witnesses in the execution of a will is not whether they
actually saw each other sign, but whether they might have been seen each other sign, had they chosen to
do so, considering their mental and physical condition and position with relation to each other at the moment
of inscription of each signature.
But it is especially to be noted that the position of the parties with relation to each other at the moment of the
subscription of each signature, must be such that they may see each other sign if they choose to do so. This, of
course, does not mean that the testator and the subscribing witnesses may be held to have executed the instrument
in the presence of each other if it appears that they would not have been able to see each other sign at that moment,
without changing their relative positions or existing conditions. The evidence in the case relied upon by the trial judge
discloses that "at the moment when the witness Javellana signed the document he was actually and physically
present and in such position with relation to Jaboneta that he could see everything that took place by merely casting
his eyes in the proper direction and without any physical obstruction to prevent his doing so." And the decision merely
laid down the doctrine that the question whether the testator and the subscribing witnesses to an alleged will sign the
instrument in the presence of each other does not depend upon proof of the fact that their eyes were actually cast
upon the paper at the moment of its subscription by each of them, but that at that moment existing conditions and
their position with relation to each other were such that by merely casting the eyes in the proper direction they could
have seen each other sign. To extend the doctrine further would open the door to the possibility of all manner of
fraud, substitution, and the like, and would defeat the purpose for which this particular condition is prescribed in the
code as one of the requisites in the execution of a will.

The decree entered by the court below admitting the instrument propounded therein to probate as the last will and
testament of Pedro Rimando, deceased, is affirmed with costs of this instance against the appellant.

Arellano, C. J., Mapa, Moreland and Trent, JJ., concur.

G.R. No. L-30289 March 26, 1929

SERAPIA DE GALA, petitioner-appellant,

vs.
APOLINARIO GONZALES and SINFOROSO ONA, opponents-appellants.

Sumulong, Lavides & Hilado for petitioner-appellant.

Godofredo Reyes for opponent-appellant Gonzales.
Ramon Diokno for opponent-appellant Ona.

OSTRAND, J.:

On November 23, 1920, Severina Gonzales executed a will in which Serapia de Gala, a niece of Severina, was
designated executrix. The testatrix died in November, 1926, leaving no heirs by force of law, and on December 2,
1926, Serapia, through her counsel, presented the will for probate. Apolinario Gonzales, a nephew of the deceased,
filed an opposition to the will on the ground that it had not been executed in conformity with the provisions of section
618 of the Code of Civil Procedure. On April 2, 1927, Serapia de Gala was appointed special administratrix of the
estate of the deceased. She returned an inventory of the estate on March 31, 1927, and made several demands upon
Sinforoso Ona, the surviving husband of the deceased, for the delivery to her of the property inventoried and of which
he was in possession.

On September 20, 1928, the Court of First Instance ordered Sinforoso Ona to deliver to Serapia de Gala all the
property left by the deceased. Instead of delivering the property as ordered, Sinforoso filed a motion asking the
appointment of Serapia de Gala as special administratrix be cancelled and that he, Sinforoso, be appointed in her
stead. The motion was opposed by both Apolinario Gonzales and by Serapia de Gala, but on March 3, 1928, it was
nevertheless granted, Serapia was removed, and Sinforoso was appointed special administrator in her place,
principally on the ground that he had possession of the property in question and that his appointment would simplify
the proceedings.

In the meantime and after various continuances and delays, the court below in an order dated January 20, 1928,
declared the will valid and admitted it to probate. All of the parties appealed, Serapia de Gala from the order removing
her from the office of special administratrix, and Apolinario Gonzales and Sinforoso Ona from the order probating the
will.
Serapia's appeal requires but little discussion. The burden of the argument of her counsel is that a special
administrator cannot be removed except for one or more of the causes stated in section 653 of the Code of Civil
Procedure. But that section can only apply to executors and regular administrators, and the office of a special
administrator is quite different from that of regular administrator. The appointment of a special administrator lies
entirely in the sound discretion of the court; the function of such an administrator is only to collect and preserve the
property of the deceased and to return an inventory thereof; he cannot be sued by a creditor and cannot pay any
debts of the deceased. The fact that no appeal can be taken from the appointment of a special administrator indicates
that both his appointment and his removal are purely discretionary, and we cannot find that the court below abused
its discretion in the present case. In removing Serapia de Gala and appointing the present possessor of the property
pending the final determination of the validity of the will, the court probably prevented useless litigation.

The appellants Sinforoso Ona and Apolinario Gonzales argue that the will in question was not executed in the form
prescribed by section 618 of the Code of Civil Procedure as amended by Act No. 2645. That section reads as follows:

No will, except as provided in the preceding section, shall be valid to pass any estate, real or personal, nor
charge or affect the same, unless it be written in the language or dialect known by the testator and signed by
him, or by the testator's name written by some other person in his presence, and by his express direction,
and attested and subscribed by three or more credible witnesses in the presence of the testator and of each
other. The testator or the person requested by him to write his name and the instrumental witnesses of the
will, shall also sign, as aforesaid, each and every page thereof, on the left margin, and said pages shall be
numbered correlatively in letters placed on the upper part of each sheet. 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.

The principal points raised by the appeal are (1) that the person requested to sign the name of the testatrix signed
only the latter's name and not her own; (2) that the attestation clause does not mention the placing of the thumb-mark
of the testatrix in the will; and (3) that the fact that the will had been signed in the presence of the witnesses was not
stated in the attestation clause but only in the last paragraph of the body of the will.

The first point can best be answered by quoting the language of this court in the case of the Estate of Maria Salva, G.
R. No. 26881:1

An examination of the will in question disclosed that it contains five pages. The name of the old woman,
Maria Salva, was written on the left hand margin of the first four pages and at the end of the will. About in
the center of her name she placed her thumb-mark. About in the center of her name she placed her thumb-
mark. The three witnesses likewise signed on the left-hand margin and at the end of the will.

On these facts, the theory of the trial judge was that under the provisions of section 618 of the Code of Civil
Procedure, as amended by Act No. 2645, it was essential to the validity of the will that the person writing the
name of the maker of the will also sign. Under the law prior to the amendment, it had been held by this court
that where a testator is unable to write and his name is signed by another at his request, in his presence and
in that of the subscribing witnesses thereto, it is unimportant, so far as the validity of the will is concerned,
whether the person who writes the name of the testator signs his own or not. (Barut vs. Cabacungan (1912),
21 Phil., 461). But his Honor, the trial judge emphasizes that the amendment introduced into the law the
following sentence: 'The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof, on the left margin . . ..' This
requirement, it is said, was not lived up to in this instance.

There is, however, an entirely different view which can be taken of the situation. This is that the testatrix
placed her thumb-mark on the will in the proper places. When, therefore, the law says that the will shall be
'signed' by the testator or testatrix, the law is fulfilled not only by the customary written signature but by the
testator or testatrix' thumb-mark. The construction put upon the word 'signed' by most courts is the original
meaning of a signum or sign, rather than the derivative meaning of a sign manual or handwriting. A statute
requiring a will to be 'signed' is satisfied if the signature is made by the testator's mark. (28 R. C. L., pp. 116-
117).
The opinion quoted is exactly in point. The testatrix thumb-mark appears in the center of her name as written by
Serapia de Gala on all of the pages of the will.

The second and third points raised by Sinforoso Ona and Apolinario Gonzales are sufficiently refuted by quoting the
last clause of the body of the will together with the attestation clause, both of which are written in the Tagalog dialect.
These clauses read as follows:

Sa katunayang ang kasulatang ito, na may anim na dahon, ay siyang naglalaman ng aking huling tagubilin,
at sa hindi ko kaalamang lumagda ng aking pangalan, ipinamanhik ko sa aking pamankin na si Serapia de
Gala na isulat ang aking pangalan at apellido, at sa tapat ay inilagda ko ang titik ng kanang daliri kong
hinlalaki, sa walkas at sa bawat isa sa anim (6) na dahon ng kasulatang ito, at ito's ginawa niya sa kautusan
at sa harap ko at ng tatlong saksing nagpapatutuo sa huli ngayon ika dalawang po't tatlo ng Nobiembre ng
1920.

(Sgd.) SEVERINA GONZALES

Pinatutunayan namin na ang kasulatang ito na binubuo ng anim (6) na dahon na pinirmahan sa harap namin
ni Serapia de Gala sa kahilingan ni Severina Gonzales sa wakas at sa mga gilid ng bawa't isa sa anim (6)
na dahon at isinaysay na ang kasulatang ito ay siyang huling habilin o testamento ni Severina Gonzales, ay
pinirmahan namin, bilang mga saksi sa wakas at sa gilid ng bawa't dahon sa harap at sa kahilingan ng
tinurang testadora, at ang bawat isa sa amin ay pumirma sa harap ng lahat at bawat isa sa amin, ngayon ika
dalawang po't tatlo ng noviembre ng taong 1920 ng taong 1920.

(Sgd.) ELEUTERIO NATIVIDAD

JUAN SUMULONG
FRANCISCO NATIVIDAD

The translation in English of the clauses quoted reads as follows:

In virtue of this will, consisting of six pages, that contains my last wish, and because of the fact that I cannot
sign my name, I request my niece Serapia de Gala to write my name, and above this I placed my right
thumb-mark at the end of this will and to each of the six pages of this document, and this was done at my
direction and in the presence of three attesting witnesses, this 23rd of November, 1920.

(Sgd.) SEVERINA GONZALES

We certify that this document, which is composed of six (6) sheets and was signed in our presence by
Serapia de Gala at the request of Severina Gonzales at the end and on the margins of each of the six (6)
sheets and was declared to contain the last will and testament of Severina Gonzales, was signed by us as
witnesses at the end and on the margins of each sheet in the presence and at the request of said testatrix,
and each of us signed in the presence of all and each of us, this 23rd day of November of the year 1920.

(Sgd.) ELEUTERIO NATIVIDAD

JUAN SUMULONG
FRANCISCO NATIVIDAD

As will be seen, it is not mentioned in the attestation clause that the testatrix signed by thumb-mark, but it does there
appear that the signature was affixed in the presence of the witnesses, and the form of the signature is sufficiently
described and explained in the last clause of the body of the will. It maybe conceded that the attestation clause is not
artistically drawn and that, standing alone, it does not quite meet the requirements of the statute, but taken in
connection with the last clause of the body of the will, it is fairly clear and sufficiently carries out the legislative intent;
it leaves no possible doubt as to the authenticity of the document.

The contention of the appellants Sinforoso Ona and Apolinario Gonzales that the fact that the will had been signed in
the presence of the witnesses was not stated in the attestation clause is without merit; the fact is expressly stated in
that clause.

In our opinion, the will is valid, and the orders appealed from are hereby affirmed without costs. So ordered.
Johnson, Street, Malcolm, Johns, Romualdez and Villa-Real, JJ., concur.

G.R. No. 1641 January 19, 1906

GERMAN JABONETA, plaintiff-appellant,

vs.
RICARDO GUSTILO, ET AL., defendants-appellees.

Ledesma, Sumulong and Quintos for appellant.

Del-Pan, Ortigas and Fisher for appellees.

CARSON, J.:

In these proceedings probate was denied the last will and testament of Macario Jaboneta, deceased, because the
lower court was of the opinion from the evidence adduced at the hearing that Julio Javellana, one of the witnesses,
did not attach his signature thereto in the presence of Isabelo Jena, another of the witnesses, as required by the
provisions of section 618 of the Code of Civil Procedure.

The following is a copy of the evidence which appears of record on this particular point, being a part of the testimony
of the said Isabeo Jena:

Q. 1641 Who first signed the will?

A. 1641 I signed it first, and afterwards Aniceto and the others.

Q. 1641 Who were those others to whom you have just referred?

A. 1641 After the witness Aniceto signed the will I left the house, because I was in a hurry, and at the
moment when I was leaving I saw Julio Javellana with the pen in his hand in position ready to sign (en
actitud de firmar). I believe he signed, because he was at the table. . . .

Q. 1641 State positively whether Julio Javellana did or did not sign as a witness to the will.

A. 1641 I can't say certainly, because as I was leaving the house I saw Julio Javellana with the pen in
his hand, in position ready to sign. I believe he signed.

Q. 1641 Why do you believe Julio Javellana signed?

A. 1641 Because he had the pen in his hand, which was resting on the paper, though I did not actually
see him sign.

Q. 1641 Explain this contradictory statement.

A. 1641 After I signed I asked permission to leave, because I was in a hurry, and while I was leaving
Julio had already taken the pen in his hand, as it appeared, for the purpose of signing, and when I was near
the door I happened to turn my face and I saw that he had his hand with the pen resting on the will, moving it
as if for the purpose of signing.

Q. 1641 State positively whether Julio moved his hand with the pen as if for the purpose of signing, or
whether he was signing

A. I believe he was signing.

The truth and accuracy of the testimony of this witness does not seem to have been questioned by any of the parties
to the proceedings, but the court, nevertheless, found the following facts:

On the 26th day of December, 1901, Macario Jaboneta executed under the following circumstances the
document in question, which has been presented for probate as his will:

Being in the house of Arcadio Jarandilla, in Jaro, in this province, he ordered that the document in question
be written, and calling Julio Javellana, Aniceto Jalbuena, and Isabelo Jena as witnesses, executed the said
document as his will. They were all together, and were in the room where Jaboneta was, and were present
when he signed the document, Isabelo Jena signing afterwards as a witness, at his request, and in his
presence and in the presence of the other two witnesses. Aniceto Jalbuena then signed as a witness in the
presence of the testator, and in the presence of the other two persons who signed as witnesses. At that
moment Isabelo Jena, being in a hurry to leave, took his hat and left the room. As he was leaving the house
Julio Javellana took the pen in his hand and put himself in position to sign the will as a witness, but did not
sign in the presence of Isabelo Jena; but nevertheless, after Jena had left the room the said Julio Javellana
signed as a witness in the presence of the testator and of the witness Aniceto Jalbuena.

We can not agree with so much of the above finding of facts as holds that the signature of Javellana was not signed
in the presence of Jena, in compliance with the provisions of section 618 of the Code of Civil Procedure. The fact that
Jena was still in the room when he saw Javellana moving his hand and pen in the act of affixing his signature to the
will, taken together with the testimony of the remaining witnesses which shows that Javellana did in fact there and
then sign his name to the will, convinces us that the signature was affixed in the presence of Jena. The fact that he
was in the act of leaving, and that his back was turned while a portion of the name of the witness was being written, is
of no importance. He, with the other witnesses and the testator, had assembled for the purpose of executing the
testament, and were together in the same room for that purpose, and at the moment when the witness Javellana
signed the document he was actually and physically present and in such position with relation to Javellana that he
could see everything which took place by merely casting his eyes in the proper direction, and without any physical
obstruction to prevent his doing so, therefore we are of opinion that the document was in fact signed before he finally
left the room.

The purpose of a statutory requirement that the witness sign in the presence of the testator is said to be that
the testator may have ocular evidence of the identity of the instrument subscribed by the witness and
himself, and the generally accepted tests of presence are vision and mental apprehension. (See Am. & Eng.
Enc. of Law, vol. 30, p. 599, and cases there cited.)

In the matter of Bedell (2 Connoly (N.Y.), 328) it was held that it is sufficient if the witnesses are together for the
purpose of witnessing the execution of the will, and in a position to actually see the testator write, if they choose to do
so; and there are many cases which lay down the rule that the true test of vision is not whether the testator actually
saw the witness sign, but whether he might have seen him sign, considering his mental and physical condition and
position at the time of the subscription. (Spoonemore vs. Cables, 66 Mo., 579.)

The principles on which these cases rest and the tests of presence as between the testator and the witnesses are
equally applicable in determining whether the witnesses signed the instrument in the presence of each other, as
required by the statute, and applying them to the facts proven in these proceedings we are of opinion that the
statutory requisites as to the execution of the instrument were complied with, and that the lower court erred in
denying probate to the will on the ground stated in the ruling appealed from.

We are of opinion from the evidence of record that the instrument propounded in these proceedings was satisfactorily
proven to be the last will and testament of Macario Jaboneta, deceased, and that it should therefore be admitted to
probate.

The judgment of the trial court is reversed, without especial condemnation of costs, and after twenty days the record
will be returned to the court form whence it came, where the proper orders will be entered in conformance herewith.
So ordered.

Arellano, C.J., Torres, Mapa, and Johnson, JJ., concur.

G.R. No. 157451 December 16, 2005

LETICIA VALMONTE ORTEGA, Petitioner,

vs.
JOSEFINA C. VALMONTE, Respondent.

DECISION

PANGANIBAN, J.:

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

The Case

Before the Court is a Petition for Review under Rule 45 of the Rules of Court, seeking to reverse and set aside the
1

December 12, 2002 Decision and the March 7, 2003 Resolution of the Court of Appeals (CA) in CA-GR CV No.
2 3

44296. The assailed Decision disposed as follows:

"WHEREFORE, the appeal is GRANTED, and the Decision appealed from is REVERSED and SET ASIDE. In its
place judgment is rendered approving and allowing probate to the said last will and testament of Placido Valmonte
and ordering the issuance of letters testamentary to the petitioner Josefina Valmonte. Let this case be remanded to
the court a quo for further and concomitant proceedings." 4

The assailed Resolution denied petitioner’s Motion for Reconsideration.

The Facts

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

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

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

‘LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN THE NAME OF THE LORD AMEN:

‘I, PLACIDO VALMONTE, of legal age, married to Josefina Cabansag Valmonte, and a resident of 9200 Catmon
Street, Makati, Metro Manila, 83 years of age and being of sound and disposing mind and memory, do hereby
declare this to be my last will and testament:

1. It is my will that I be buried in the Catholic Cemetery, under the auspices of the Catholic Church in accordance with
the rites and said Church and that a suitable monument to be erected and provided my by executrix (wife) to
perpetuate my memory in the minds of my family and friends;
2. I give, devise and bequeath unto my loving wife, JOSEFINA C. VALMONTE, one half (1/2) portion of the follow-
described properties, which belongs to me as [co-owner]:

a. Lot 4-A, Block 13 described on plan Psd-28575, LRC, (GLRO), situated in Makati, Metro Manila, described and
covered by TCT No. 123468 of the Register of Deeds of Pasig, Metro-Manila registered jointly as co-owners with my
deceased sister (Ciriaca Valmonte), having share and share alike;

b. 2-storey building standing on the above-described property, made of strong and mixed materials used as my
residence and my wife and located at No. 9200 Catmon Street, Makati, Metro Manila also covered by Tax Declaration
No. A-025-00482, Makati, Metro-Manila, jointly in the name of my deceased sister, Ciriaca Valmonte and myself as
co-owners, share and share alike or equal co-owners thereof;

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

4. I hereby appoint my wife, Josefina C. Valmonte as sole executrix of my last will and testament, and it is my will that
said executrix be exempt from filing a bond;

IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of June 1983 in Quezon City, Philippines.’

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

1. Petitioner failed to allege all assets of the testator, especially those found in the USA;

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

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

4. Testator was mentally incapable to make a will at the time of the alleged execution he being in an advance sate of
senility;

5. Will was executed under duress, or the influence of fear or threats;

6. Will was procured by undue and improper influence and pressure on the part of the petitioner and/or her agents
and/or assistants; and/or

7. Signature of testator was procured by fraud, or trick, and he did not intend that the instrument should be his will at
the time of affixing his signature thereto;’

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

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

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

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

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

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

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

1. Non-compliance with the legal solemnities and formalities in the execution and attestation of the will; and

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

"It then found these grounds extant and proven, and accordingly disallowed probate." 5

Ruling of the Court of Appeals

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

Hence, this Petition. 7

Issues
Petitioner raises the following issues for our consideration:

"I.

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

"II.

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

"III.

Whether or not Placido Valmonte has testamentary capacity at the time he allegedly executed the subject will." 8

In short, petitioner assails the CA’s allowance of the probate of the will of Placido Valmonte.

This Court’s Ruling

The Petition has no merit.

Main Issue:

Probate of a Will

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

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

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

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

(2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution;

(3) If it was executed through force or under duress, or the influence of fear, or threats;

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

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

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

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

Existence of Fraud in the

Execution of a Will

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

Petitioner contends that it was "highly dubious for a woman at the prime of her young life [to] almost immediately
plunge into marriage with a man who [was] thrice her age x x x and who happened to be [a] Fil-American
pensionado," thus casting doubt on the intention of respondent in seeking the probate of the will. Moreover, it
11

supposedly "defies human reason, logic and common experience" for an old man with a severe psychological
12

condition to have willingly signed a last will and testament.

We are not convinced. Fraud "is a trick, secret device, false statement, or pretense, by which the subject of it is
cheated. It may be of such character that the testator is misled or deceived as to the nature or contents of the
document which he executes, or it may relate to some extrinsic fact, in consequence of the deception regarding
which the testator is led to make a certain will which, but for the fraud, he would not have made." 13

We stress that the party challenging the will bears the burden of proving the existence of fraud at the time of its
execution. The burden to show otherwise shifts to the proponent of the will only upon a showing of credible evidence
14

of fraud. Unfortunately in this case, other than the self-serving allegations of petitioner, no evidence of fraud was
15

ever presented.

It is a settled doctrine that the omission of some relatives does not affect the due execution of a will. That the testator
16

was tricked into signing it was not sufficiently established by the fact that he had instituted his wife, who was more
than fifty years his junior, as the sole beneficiary; and disregarded petitioner and her family, who were the ones who
had taken "the cudgels of taking care of [the testator] in his twilight years."
17

Moreover, as correctly ruled by the appellate court, the conflict between the dates appearing on the will does not
invalidate the document, "because the law does not even require that a [notarial] will x x x be executed and
acknowledged on the same occasion." More important, the will must be subscribed by the testator, as well as by
18

three or more credible witnesses who must also attest to it in the presence of the testator and of one
another. Furthermore, the testator and the witnesses must acknowledge the will before a notary public. In any event,
19 20

we agree with the CA that "the variance in the dates of the will as to its supposed execution and attestation was
satisfactorily and persuasively explained by the notary public and the instrumental witnesses." 21

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

"Atty. Floro Sarmiento:

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

A Yes sir.

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

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

xxxxxxxxx

Q The document has been acknowledged on August 9, 1983 as per acknowledgement appearing therein. Was this
the actual date when the document was acknowledged?

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

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

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

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

Eugenio Gomez:

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

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

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

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

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

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

Felisa Gomez on cross-examination:

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

xxxxxxxxx

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

Josie Collado:

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

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

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

A Yes, Sir.

Q For what purpose?

A Our purpose is just to sign the will.

Q Were you able to sign the will you mentioned?

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

Notably, petitioner failed to substantiate her claim of a "grand conspiracy" in the commission of a fraud. There was no
showing that the witnesses of the proponent stood to receive any benefit from the allowance of the will. The
testimonies of the three subscribing witnesses and the notary are credible evidence of its due execution. Their23

testimony favoring it and the finding that it was executed in accordance with the formalities required by law should be
affirmed, absent any showing of ill motives. 24

Capacity to Make a Will

In determining the capacity of the testator to make a will, the Civil Code gives the following guidelines:

"Article 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution.

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

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

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

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

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

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

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

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

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

SO ORDERED.
G.R. No. 122880 April 12, 2006

FELIX AZUELA, Petitioner,

vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO G. CASTILLO, Respondents.

DECISION

TINGA, J.:

The core of this petition is a highly defective notarial will, purportedly executed by Eugenia E. Igsolo (decedent), who
died on 16 December 1982 at the age of 80. In refusing to give legal recognition to the due execution of this
document, the Court is provided the opportunity to assert a few important doctrinal rules in the execution of notarial
wills, all self-evident in view of Articles 805 and 806 of the Civil Code.

A will whose attestation clause does not contain the number of pages on which the will is written is fatally
defective. A will whose attestation clause is not signed by the instrumental witnesses is fatally defective.
And perhaps most importantly, a will which does not contain an acknowledgment, but a mere jurat, is fatally
defective. Any one of these defects is sufficient to deny probate. A notarial will with all three defects is just
aching for judicial rejection.

There is a distinct and consequential reason the Civil Code provides a comprehensive catalog of imperatives for the
proper execution of a notarial will. Full and faithful compliance with all the detailed requisites under Article 805 of the
Code leave little room for doubt as to the validity in the due execution of the notarial will. Article 806 likewise imposes
another safeguard to the validity of notarial wills — that they be acknowledged before a notary public by the testator
and the witnesses. A notarial will executed with indifference to these two codal provisions opens itself to nagging
questions as to its legitimacy.

The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial Court (RTC) of Manila. The
petition filed by petitioner Felix Azuela sought to admit to probate the notarial will of Eugenia E. Igsolo, which was
notarized on 10 June 1981. Petitioner is the son of the cousin of the decedent.

The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full:

HULING HABILIN NI EUGENIA E. IGSOLO

SA NGALAN NG MAYKAPAL, AMEN:

AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila, pitongput siyam (79) na gulang,
nasa hustong pagi-isip, pag-unawa at memoria ay nag-hahayag na ito na ang aking huling habilin at testamento, at
binabali wala ko lahat ang naunang ginawang habilin o testamento:

Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong sa kaugalian at patakaran ng
simbahang katoliko at ang taga-pag-ingat (Executor) ng habiling ito ay magtatayo ng bantayog upang silbing ala-ala
sa akin ng aking pamilya at kaibigan;

Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking pamangkin na si Felix Azuela, na
siyang nag-alaga sa akin sa mahabang panahon, yaong mga bahay na nakatirik sa lote numero 28, Block 24 at
nakapangalan sa Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng karapatan sa bahay na nakatirik sa
inoopahan kong lote, numero 43, Block 24 na pag-aari ng Pechaten Corporation. Ipinagkakaloob kong buong buo
ang lahat ng karapatan sa bahay at lupa na nasa 500 San Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix
Azuela at ang pagkakaloob kong ito ay walang pasubali’t at kondiciones;

Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling habiling ito at kagustuhan ko
rin na hindi na kailanman siyang mag-lagak ng piyansiya.

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

PATUNAY NG MGA SAKSI

Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni Eugenia E.
Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing
tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawa’t dahon, sa harap ng lahat at
bawa’t sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at
bawa’t isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawa’t dahon ng kasulatan ito.

EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.

QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981

LAMBERTO C. LEAÑO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981

JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.

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

(Sgd.)
PETRONIO Y. BAUTISTA

Doc. No. 1232 ; NOTARIO PUBLIKO

Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-81

The three named witnesses to the will affixed their signatures on the left-hand margin of both pages of the will, but
not at the bottom of the attestation clause.

The probate petition adverted to only two (2) heirs, legatees and devisees of the decedent, namely: petitioner himself,
and one Irene Lynn Igsolo, who was alleged to have resided abroad. Petitioner prayed that the will be allowed, and
that letters testamentary be issued to the designated executor, Vart Prague.

The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented herself as the attorney-in-fact
of "the 12 legitimate heirs" of the decedent.2 Geralda Castillo claimed that the will is a forgery, and that the true
purpose of its emergence was so it could be utilized as a defense in several court cases filed by oppositor against
petitioner, particularly for forcible entry and usurpation of real property, all centering on petitioner’s right to occupy the
properties of the decedent.3 It also asserted that contrary to the representations of petitioner, the decedent was
actually survived by 12 legitimate heirs, namely her grandchildren, who were then residing abroad. Per records, it
was subsequently alleged that decedent was the widow of Bonifacio Igsolo, who died in 1965, 4 and the mother of a
legitimate child, Asuncion E. Igsolo, who predeceased her mother by three (3) months.5
Oppositor Geralda Castillo also argued that the will was not executed and attested to in accordance with law. She
pointed out that decedent’s signature did not appear on the second page of the will, and the will was not properly
acknowledged. These twin arguments are among the central matters to this petition.

After due trial, the RTC admitted the will to probate, in an Order dated 10 August 1992. 6 The RTC favorably took into
account the testimony of the three (3) witnesses to the will, Quirino Agrava, Lamberto Leano, and Juanito Estrada.
The RTC also called to fore "the modern tendency in respect to the formalities in the execution of a will x x x with the
end in view of giving the testator more freedom in expressing his last wishes;" 7 and from this perspective, rebutted
oppositor’s arguments that the will was not properly executed and attested to in accordance with law.

After a careful examination of the will and consideration of the testimonies of the subscribing and attesting witnesses,
and having in mind the modern tendency in respect to the formalities in the execution of a will, i.e., the liberalization of
the interpretation of the law on the formal requirements of a will with the end in view of giving the testator more
freedom in expressing his last wishes, this Court is persuaded to rule that the will in question is authentic and had
been executed by the testatrix in accordance with law.

On the issue of lack of acknowledgement, this Court has noted that at the end of the will after the signature of the
testatrix, the following statement is made under the sub-title, "Patunay Ng Mga Saksi":

"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni Eugenia N.
Igsolo, tagapagmana na siya niyang Huling Habilin, ngayong ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing
tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawa’t dahon, sa harap ng lahat at
bawa’t sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at
bawa’t isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawa’t dahon ng kasulatan ito."

The aforequoted declaration comprises the attestation clause and the acknowledgement and is considered by this
Court as a substantial compliance with the requirements of the law.

On the oppositor’s contention that the attestation clause was not signed by the subscribing witnesses at the bottom
thereof, this Court is of the view that the signing by the subscribing witnesses on the left margin of the second page of
the will containing the attestation clause and acknowledgment, instead of at the bottom thereof, substantially satisfies
the purpose of identification and attestation of the will.

With regard to the oppositor’s argument that the will was not numbered correlatively in letters placed on upper part of
each page and that the attestation did not state the number of pages thereof, it is worthy to note that the will is
composed of only two pages. The first page contains the entire text of the testamentary dispositions, and the second
page contains the last portion of the attestation clause and acknowledgement. Such being so, the defects are not of a
serious nature as to invalidate the will. For the same reason, the failure of the testatrix to affix her signature on the left
margin of the second page, which contains only the last portion of the attestation clause and acknowledgment is not a
fatal defect.

As regards the oppositor’s assertion that the signature of the testatrix on the will is a forgery, the testimonies of the
three subscribing witnesses to the will are convincing enough to establish the genuineness of the signature of the
testatrix and the due execution of the will.8

The Order was appealed to the Court of Appeals by Ernesto Castillo, who had substituted his since deceased
mother-in-law, Geralda Castillo. In a Decision dated 17 August 1995, the Court of Appeals reversed the trial court and
ordered the dismissal of the petition for probate.9 The Court of Appeals noted that the attestation clause failed to state
the number of pages used in the will, thus rendering the will void and undeserving of probate. 10

Hence, the present petition.

Petitioner argues that the requirement under Article 805 of the Civil Code that "the number of pages used in a notarial
will be stated in the attestation clause" is merely directory, rather than mandatory, and thus susceptible to what he
termed as "the substantial compliance rule."11

The solution to this case calls for the application of Articles 805 and 806 of the Civil Code, which we replicate in full.
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by
the testator's name written by some other person in his presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also
sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be
numbered correlatively in letters placed on the upper part of each page.

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

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

Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public
shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court.

The appellate court, in its Decision, considered only one defect, the failure of the attestation clause to state the
number of pages of the will. But an examination of the will itself reveals several more deficiencies.

As admitted by petitioner himself, the attestation clause fails to state the number of pages of the will. 12 There was an
incomplete attempt to comply with this requisite, a space having been allotted for the insertion of the number of pages
in the attestation clause. Yet the blank was never filled in; hence, the requisite was left uncomplied with.

The Court of Appeals pounced on this defect in reversing the trial court, citing in the process Uy Coque v. Navas L.
Sioca13 and In re: Will of Andrada.14 In Uy Coque, the Court noted that among the defects of the will in question was
the failure of the attestation clause to state the number of pages contained in the will. 15 In ruling that the will could not
be admitted to probate, the Court made the following consideration which remains highly relevant to this day: "The
purpose of requiring the number of sheets to be stated in the attestation clause is obvious; the document might
easily be so prepared that the removal of a sheet would completely change the testamentary dispositions of
the will and in the absence of a statement of the total number of sheets such removal might be effected by
taking out the sheet and changing the numbers at the top of the following sheets or pages. If, on the other
hand, the total number of sheets is stated in the attestation clause the falsification of the document will involve the
inserting of new pages and the forging of the signatures of the testator and witnesses in the margin, a matter
attended with much greater difficulty."16

The case of In re Will of Andrada concerned a will the attestation clause of which failed to state the number of sheets
or pages used. This consideration alone was sufficient for the Court to declare "unanim[ity] upon the point that the
defect pointed out in the attesting clause is fatal."17 It was further observed that "it cannot be denied that the x x x
requirement affords additional security against the danger that the will may be tampered with; and as the Legislature
has seen fit to prescribe this requirement, it must be considered material." 18

Against these cited cases, petitioner cites Singson v. Florentino19 and Taboada v. Hon. Rosal,20 wherein the Court
allowed probate to the wills concerned therein despite the fact that the attestation clause did not state the number of
pages of the will. Yet the appellate court itself considered the import of these two cases, and made the following
distinction which petitioner is unable to rebut, and which we adopt with approval:

Even a cursory examination of the Will (Exhibit "D"), will readily show that the attestation does not state the number of
pages used upon which the will is written. Hence, the Will is void and undeserving of probate.

We are not impervious of the Decisions of the Supreme Court in "Manuel Singson versus Emilia Florentino, et al., 92
Phil. 161 and Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA 195," to the effect that a will may still
be valid even if the attestation does not contain the number of pages used upon which the Will is written. However,
the Decisions of the Supreme Court are not applicable in the aforementioned appeal at bench. This is so because, in
the case of "Manuel Singson versus Emilia Florentino, et al., supra," although the attestation in the subject Will did
not state the number of pages used in the will, however, the same was found in the last part of the body of the Will:
"x x x

The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which requires that the
attestation clause shall state the number of pages or sheets upon which the will is written, which requirement has
been held to be mandatory as an effective safeguard against the possibility of interpolation or omission of some of the
pages of the will to the prejudice of the heirs to whom the property is intended to be bequeathed (In re Will of
Andrada, 42 Phil. 180; Uy Coque vs. Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50 Phil. 30; Quinto vs.
Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to be that the
attestation clause must contain a statement of the number of sheets or pages composing the will and that if this is
missing or is omitted, it will have the effect of invalidating the will if the deficiency cannot be supplied, not by
evidence aliunde, but by a consideration or examination of the will itself. But here the situation is different. While the
attestation clause does not state the number of sheets or pages upon which the will is written, however, the last part
of the body of the will contains a statement that it is composed of eight pages, which circumstance in our opinion
takes this case out of the rigid rule of construction and places it within the realm of similar cases where a broad and
more liberal view has been adopted to prevent the will of the testator from being defeated by purely technical
considerations." (page 165-165, supra) (Underscoring supplied)

In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial acknowledgement in the Will states the
number of pages used in the:

"x x x

We have examined the will in question and noticed that the attestation clause failed to state the number of pages
used in writing the will. This would have been a fatal defect were it not for the fact that, in this case, it is discernible
from the entire will that it is really and actually composed of only two pages duly signed by the testatrix and her
instrumental witnesses. As earlier stated, the first page which contains the entirety of the testamentary dispositions is
signed by the testatrix at the end or at the bottom while the instrumental witnesses signed at the left margin. The
other page which is marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "this Last Will and Testament consists of two pages including this page" (pages
200-201, supra) (Underscoring supplied).

However, in the appeal at bench, the number of pages used in the will is not stated in any part of the Will. The will
does not even contain any notarial acknowledgment wherein the number of pages of the will should be stated. 21

Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code in 1950, at a time when the
statutory provision governing the formal requirement of wills was Section

618 of the Code of Civil Procedure.22 Reliance on these cases remains apropos, considering that the requirement that
the attestation state the number of pages of the will is extant from Section 618. 23 However, the enactment of the Civil
Code in 1950 did put in force a rule of interpretation of the requirements of wills, at least insofar as the attestation
clause is concerned, that may vary from the philosophy that governed these two cases. Article 809 of the Civil Code
states: "In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved
that the will was in fact executed and attested in substantial compliance with all the requirements of article 805."

In the same vein, petitioner cites the report of the Civil Code Commission, which stated that "the underlying and
fundamental objective permeating the provisions on the [law] on [wills] in this project consists in the [liberalization] of
the manner of their execution with the end in view of giving the testator more [freedom] in [expressing] his last
wishes. This objective is in accord with the [modern tendency] in respect to the formalities in the execution of
wills."24 However, petitioner conveniently omits the qualification offered by the Code Commission in the very same
paragraph he cites from their report, that such liberalization be "but with sufficient safeguards and restrictions to
prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator." 25

Caneda v. Court of Appeals26 features an extensive discussion made by Justice Regalado, speaking for the Court on the
conflicting views on the manner of interpretation of the legal formalities required in the execution of the attestation clause in
wills.27 Uy Coque and Andrada are cited therein, along with several other cases, as examples of the application of the rule of
strict construction.28 However, the Code Commission opted to recommend a more liberal construction through the "substantial
compliance rule" under Article 809. A cautionary note was struck though by Justice J.B.L. Reyes as to how Article 809 should be
applied:
x x x The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself:
whether all the pages are consecutively numbered; whether the signatures appear in each and every page; whether
the subscribing witnesses are three or the will was notarized. All these are facts that the will itself can reveal, and
defects or even omissions concerning them in the attestation clause can be safely disregarded. But the total
number of pages, and whether all persons required to sign did so in the presence of each other must
substantially appear in the attestation clause, being the only check against perjury in the probate
proceedings.29 (Emphasis supplied.)

The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed decision, considering that the
failure to state the number of pages of the will in the attestation clause is one of the defects which cannot be simply
disregarded. In Caneda itself, the Court refused to allow the probate of a will whose attestation clause failed to state
that the witnesses subscribed their respective signatures to the will in the presence of the testator and of each
other,30 the other omission cited by Justice J.B.L. Reyes which to his estimation cannot be lightly disregarded.

Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that omission which can be supplied by
an examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and,
correspondingly, would not obstruct the allowance to probate of the will being assailed. However, those omissions
which cannot be supplied except by evidence aliunde would result in the invalidation of the attestation clause and
ultimately, of the will itself."31 Thus, a failure by the attestation clause to state that the testator signed every page can
be liberally construed, since that fact can be checked by a visual examination; while a failure by the attestation clause
to state that the witnesses signed in one another’s presence should be considered a fatal flaw since the attestation is
the only textual guarantee of compliance.32

The failure of the attestation clause to state the number of pages on which the will was written remains a fatal flaw,
despite Article 809. The purpose of the law in requiring the clause to state the number of pages on which the will is
written is to safeguard against possible interpolation or omission of one or some of its pages and to prevent any
increase or decrease in the pages.33 The failure to state the number of pages equates with the absence of an
averment on the part of the instrumental witnesses as to how many pages consisted the will, the execution of which
they had ostensibly just witnessed and subscribed to. Following Caneda, there is substantial compliance with this
requirement if the will states elsewhere in it how many pages it is comprised of, as was the situation
in Singson and Taboada. However, in this case, there could have been no substantial compliance with the
requirements under Article 805 since there is no statement in the attestation clause or anywhere in the will itself as to
the number of pages which comprise the will.

At the same time, Article 809 should not deviate from the need to comply with the formal requirements as
enumerated under Article 805. Whatever the inclinations of the members of the Code Commission in incorporating
Article 805, the fact remains that they saw fit to prescribe substantially the same formal requisites as enumerated in
Section 618 of the Code of Civil Procedure, convinced that these remained effective safeguards against the forgery
or intercalation of notarial wills.34 Compliance with these requirements, however picayune in impression, affords the
public a high degree of comfort that the testator himself or herself had decided to convey property post mortem in the
manner established in the will.35 The transcendent legislative intent, even as expressed in the cited comments
of the Code Commission, is for the fruition of the testator’s incontestable desires, and not for the indulgent
admission of wills to probate.

The Court could thus end here and affirm the Court of Appeals. However, an examination of the will itself reveals a
couple of even more critical defects that should necessarily lead to its rejection.

For one, the attestation clause was not signed by the instrumental witnesses. While the signatures of the
instrumental witnesses appear on the left-hand margin of the will, they do not appear at the bottom of the attestation
clause which after all consists of their averments before the notary public.

Cagro v. Cagro36 is material on this point. As in this case, "the signatures of the three witnesses to the will do not
appear at the bottom of the attestation clause, although the page containing the same is signed by the witnesses on
the left-hand margin."37 While three (3) Justices38 considered the signature requirement had been substantially
complied with, a majority of six (6), speaking through Chief Justice Paras, ruled that the attestation clause had not
been duly signed, rendering the will fatally defective.

There is no question that the signatures of the three witnesses to the will do not appear at the bottom of the
attestation clause, although the page containing the same is signed by the witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The attestation clause is "a memorandum of
the facts attending the execution of the will" required by law to be made by the attesting witnesses, and it must
necessarily bear their signatures. An unsigned attestation clause cannot be considered as an act of the witnesses,
since the omission of their signatures at the bottom thereof negatives their participation.

The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin conform
substantially to the law and may be deemed as their signatures to the attestation clause. This is untenable, because
said signatures are in compliance with the legal mandate that the will be signed on the left-hand margin of all its
pages. If an attestation clause not signed by the three witnesses at the bottom thereof, be admitted as sufficient, it
would be easy to add such clause to a will on a subsequent occasion and in the absence of the testator and any or all
of the witnesses.39

The Court today reiterates the continued efficacy of Cagro. Article 805 particularly segregates the requirement that
the instrumental witnesses sign each page of the will, from the requisite that the will be "attested and subscribed by
[the instrumental witnesses]." The respective intents behind these two classes of signature are distinct from each
other. The signatures on the left-hand corner of every page signify, among others, that the witnesses are aware that
the page they are signing forms part of the will. On the other hand, the signatures to the attestation clause establish
that the witnesses are referring to the statements contained in the attestation clause itself. Indeed, the attestation
clause is separate and apart from the disposition of the will. An unsigned attestation clause results in an unattested
will. Even if the instrumental witnesses signed the left-hand margin of the page containing the unsigned attestation
clause, such signatures cannot demonstrate these witnesses’ undertakings in the clause, since the signatures that do
appear on the page were directed towards a wholly different avowal.

The Court may be more charitably disposed had the witnesses in this case signed the attestation clause itself, but not
the left-hand margin of the page containing such clause. Without diminishing the value of the instrumental witnesses’
signatures on each and every page, the fact must be noted that it is the attestation clause which contains the
utterances reduced into writing of the testamentary witnesses themselves. It is the witnesses, and not the testator,
who are required under Article 805 to state the number of pages used upon which the will is written; the fact that the
testator had signed the will and every page thereof; and that they witnessed and signed the will and all the pages
thereof in the presence of the testator and of one another. The only proof in the will that the witnesses have stated
these elemental facts would be their signatures on the attestation clause.

Thus, the subject will cannot be considered to have been validly attested to by the instrumental witnesses, as they
failed to sign the attestation clause.

Yet, there is another fatal defect to the will on which the denial of this petition should also hinge. The requirement
under Article 806 that "every will must be acknowledged before a notary public by the testator and the witnesses" has
also not been complied with. The importance of this requirement is highlighted by the fact that it had been segregated
from the other requirements under Article 805 and entrusted into a separate provision, Article 806. The non-
observance of Article 806 in this case is equally as critical as the other cited flaws in compliance with Article 805, and
should be treated as of equivalent import.

In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote "Nilagdaan ko at ninotario ko
ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila."40 By no manner of contemplation can those words
be construed as an acknowledgment. An acknowledgment is the act of one who has executed a deed in going before
some competent officer or court and declaring it to be his act or deed. 41 It involves an extra step undertaken whereby
the signor actually declares to the notary that the executor of a document has attested to the notary that the same is
his/her own free act and deed.

It might be possible to construe the averment as a jurat, even though it does not hew to the usual language thereof.
A jurat is that part of an affidavit where the notary certifies that before him/her, the document was subscribed and
sworn to by the executor.42 Ordinarily, the language of the jurat should avow that the document was subscribed and
sworn before the notary public, while in this case, the notary public averred that he himself "signed and notarized" the
document. Possibly though, the word "ninotario" or "notarized" encompasses the signing of and swearing in of the
executors of the document, which in this case would involve the decedent and the instrumental witnesses.

Yet even if we consider what was affixed by the notary public as a jurat, the will would nonetheless remain invalid, as
the express requirement of Article 806 is that the will be "acknowledged", and not merely subscribed and sworn to.
The will does not present any textual proof, much less one under oath, that the decedent and the instrumental
witnesses executed or signed the will as their own free act or deed. The acknowledgment made in a will provides for
another all-important legal safeguard against spurious wills or those made beyond the free consent of the testator. An
acknowledgement is not an empty meaningless act. 43 The acknowledgment coerces the testator and the instrumental
witnesses to declare before an officer of the law that they had executed and subscribed to the will as their own free
act or deed. Such declaration is under oath and under pain of perjury, thus allowing for the criminal prosecution of
persons who participate in the execution of spurious wills, or those executed without the free consent of the testator.
It also provides a further degree of assurance that the testator is of certain mindset in making the testamentary
dispositions to those persons he/she had designated in the will.

It may not have been said before, but we can assert the rule, self-evident as it is under Article 806. A notarial will
that is not acknowledged before a notary public by the testator and the witnesses is fatally defective, even if
it is subscribed and sworn to before a notary public.

There are two other requirements under Article 805 which were not fully satisfied by the will in question. We need not
discuss them at length, as they are no longer material to the

disposition of this case. The provision requires that the testator and the instrumental witnesses sign each and every
page of the will on the left margin, except the last; and that all the pages shall be numbered correlatively in letters
placed on the upper part of each page. In this case, the decedent, unlike the witnesses, failed to sign both pages of
the will on the left margin, her only signature appearing at the so-called "logical end"44 of the will on its first page.
Also, the will itself is not numbered correlatively in letters on each page, but instead numbered with Arabic numerals.
There is a line of thought that has disabused the notion that these two requirements be construed as
mandatory.45Taken in isolation, these omissions, by themselves, may not be sufficient to deny probate to a will. Yet
even as these omissions are not decisive to the adjudication of this case, they need not be dwelt on, though
indicative as they may be of a general lack of due regard for the requirements under Article 805 by whoever executed
the will.

All told, the string of mortal defects which the will in question suffers from makes the probate denial inexorable.

WHEREFORE, the petition is DENIED. Costs against petitioner.

SO ORDERED.

G.R. No. 189984 November 12, 2012

IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE LAST WILL AND TESTAMENT OF ENRIQUE
S. LOPEZ RICHARD B. LOPEZ, Petitioner,
vs.
DIANA JEANNE LOPEZ, MARYBETH DE LEON and VICTORIA L. TUAZON, Respondents.

RESOLUTION

PERLAS-BERNABE, J.:

This Petition for Review on Certiorari assails the March 30, 2009 Decision and October 22, 2009 Resolution of the
1 2

Court of Appeals (CA) in CA-G.R. CV No. 87064 which affirmed the August 26, 2005 Decision of the Regional Trial
3

Court of Manila, Branch 42 (RTC), in SP. Proc. No. 99-95225 disallowing the probate of the Last Will and Testament
of Enrique S. Lopez.

The Factual Antecedents

On June 21, 1999, Enrique S. Lopez (Enrique) died leaving his wife, Wendy B. Lopez, and their four legitimate
children, namely, petitioner Richard B. Lopez (Richard) and the respondents Diana Jeanne Lopez (Diana), Marybeth
de Leon (Marybeth) and Victoria L. Tuazon (Victoria) as compulsory heirs. Before Enrique’s death, he executed a
Last Will and Testament on August 10, 1996 and constituted Richard as his executor and administrator.
4

On September 27, 1999, Richard filed a petition for the probate of his father's Last Will and Testament before the
RTC of Manila with prayer for the issuance of letters testamentary in his favor. Marybeth opposed the petition
contending that the purported last will and testament was not executed and attested as required by law, and that it
was procured by undue and improper pressure and influence on the part of Richard. The said opposition was also
adopted by Victoria.

After submitting proofs of compliance with jurisdictional requirements, Richard presented the attesting witnesses,
namely: Reynaldo Maneja; Romulo Monteiro; Ana Maria Lourdes Manalo (Manalo); and the notary public who
notarized the will, Atty. Perfecto Nolasco (Atty. Nolasco). The instrumental witnesses testified that after the late
Enrique read and signed the will on each and every page, they also read and signed the same in the latter's presence
and of one another. Photographs of the incident were taken and presented during trial. Manalo further testified that
she was the one who prepared the drafts and revisions from Enrique before the final copy of the will was made.

Likewise, Atty. Nolasco claimed that Enrique had been his client for more than 20 years. Prior to August 10, 1996, the
latter consulted him in the preparation of the subject will and furnished him the list of his properties for distribution
among his children. He prepared the will in accordance with Enrique's instruction and that before the latter and the
attesting witnesses signed it in the presence of one another, he translated the will which was written in English to
Filipino and added that Enrique was in good health and of sound mind at that time.

On the other hand, the oppositors presented its lone witness, Gregorio B. Paraon (Paraon), Officer-in-Charge of the
Notarial Section, Office of the Clerk of Court, RTC, Manila. His testimony centered mainly on their findings that Atty.
Nolasco was not a notary public for the City of Manila in 1996, which on cross examination was clarified after Paraon
discovered that Atty. Nolasco was commissioned as such for the years 1994 to 1997.

Ruling of the RTC

In the Decision dated August 26, 2005, the RTC disallowed the probate of the will for failure to comply with Article
5

805 of the Civil Code which requires a statement in the attestation clause of the number of pages used upon which
the will is written. It held that while Article 809 of the same Code requires mere substantial compliance of the form laid
down in Article 805 thereof, the rule only applies if the number of pages is reflected somewhere else in the will with
no evidence aliunde or extrinsic evidence required. While the acknowledgment portion stated that the will consists of
7 pages including the page on which the ratification and acknowledgment are written, the RTC observed that it has 8
pages including the acknowledgment portion. As such, it disallowed the will for not having been executed and
attested in accordance with law.

Aggrieved, Richard filed a Notice of Appeal which the RTC granted in the Order dated October 26, 2005. 6

Ruling of the Court of Appeals

On March 30, 2009, the CA issued the assailed decision dismissing the appeal. It held that the RTC erroneously
7

granted Richard's appeal as the Rules of Court is explicit that appeals in special proceedings, as in this case, must be
made through a record on appeal. Nevertheless, even on the merits, the CA found no valid reason to deviate from the
findings of the RTC that the failure to state the number of pages of the will in the attestation clause was fatal. It noted
that while Article 809 of the Civil Code sanctions mere substantial compliance with the formal requirements set forth
in Article 805 thereof, there was a total omission of such fact in the attestation clause. Moreover, while the
acknowledgment of the will made mention of "7 pages including the page on which the ratification and
acknowledgment are written," the will had actually 8 pages including the acknowledgment portion thus, necessitating
the presentation of evidence aliunde to explain the discrepancy. Richard's motion for reconsideration from the
decision was likewise denied in the second assailed Resolution dated October 22, 2009.
8

Hence, the instant petition assailing the propriety of the CA's decision.

Ruling of the Court

The petition lacks merit.

The provisions of the Civil Code on Forms of Wills, particularly, Articles 805 and 809 of the Civil Code provide:

ART. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by
the testator's name written by some other person in his presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also
sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be
numbered correlatively in letters placed on the upper part of each page.

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

If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. (underscoring
1âwphi1

supplied)

ART. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved
that the will was in fact executed and attested in substantial compliance with all the requirements of Article 805.

The law is clear that the attestation must state the number of pages used upon which the will is written. The purpose
of the law is to safeguard against possible interpolation or omission of one or some of its pages and prevent any
increase or decrease in the pages. 9

While Article 809 allows substantial compliance for defects in the form of the attestation clause, Richard likewise
failed in this respect. The statement in the Acknowledgment portion of the subject last will and testament that it
"consists of 7 pages including the page on which the ratification and acknowledgment are written" cannot be deemed
10

substantial compliance. The will actually consists of 8 pages including its acknowledgment which discrepancy cannot
be explained by mere examination of the will itself but through the presentation of evidence aliund. On this score is
11

the comment of Justice J.B.L. Reyes regarding the application of Article 809, to wit:

x x x The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself:
whether all the pages are consecutively numbered; whether the signatures appear in each and every page; whether
the subscribing witnesses are three or the will was notarized. All these are facts that the will itself can reveal, and
defects or even omissions concerning them in the attestation clause can be safely disregarded. But the total number
of pages, and whether all persons required to sign did so in the presence of each other must substantially appear in
the attestation clause, being the only check against perjury in the probate proceedings. (Emphasis supplied)
12

Hence, the CA properly sustained the disallowance of the will. Moreover, it correctly ruled that Richard pursued the
wrong mode of appeal as Section 2(a), Rule 41 of the Rules of Court explicitly provides that in special proceedings,
as in this case, the appeal shall be made by record on appeal.

WHEREFORE, premises considered, the petition is DENIED.

SO ORDERED.

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

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

Benjamin C. Santos Law Offices for petitioners.

Rodrigo V. Fontelera for private respondents.

PARAS, J.:

The sole issue in this case is whether or not the alleged holographic will of one Melecio Labrador is dated, as
provided for in Article 810 of the New Civil Code.
2

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

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

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

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

After both parties had rested and submitted their respective evidence, the trial court rendered a joint decision dated
February 28, 1985, allowing the probate of the holographic will and declaring null and void the Deed of Absolute sale.
The court a quo had also directed the respondents (the defendants in Civil Case No. 934-I) to reimburse to the
petitioners the sum of P5,000.00 representing the redemption price for the property paid by the plaintiff-petitioner
Sagrado with legal interest thereon from December 20, 1976, when it was paid to vendee a retro.

Respondents appealed the joint decision to the Court of Appeals, which on March 10, 1988 modified said joint
decision of the court a quo by denying the allowance of the probate of the will for being undated and reversing the
order of reimbursement. Petitioners' Motion for Reconsideration of the aforesaid decision was denied by the Court of
Appeals, in the resolution of June 13, 1988. Hence, this petition.

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

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

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

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

ENGLISH INTERPRETATION OF THE WILL OF THE

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

I — First Page

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

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

II — Second Page

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

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

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

III — THIRD PAGE

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

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

The petition, which principally alleges that the holographic will is really dated, although the date is not in its usual
place, is impressed with merit.
The will has been dated in the hand of the testator himself in perfect compliance with Article 810. It is worthy of note
1âwphi1

to quote the first paragraph of the second page of the holographic will, viz:

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

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

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

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

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

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

SO ORDERED.

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

G.R. No. 106720 September 15, 1994

SPOUSES ROBERTO AND THELMA AJERO, petitioners,

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

Miguel D. Larida for petitioners.

Montilla Law Office for private respondent.

PUNO, J.:

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

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

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

The earlier Decision was rendered by the RTC of Quezon City, Branch 94, in Sp. Proc. No. Q-37171, and
2

the instrument submitted for probate is the holographic will of the late Annie Sand, who died on November
25, 1982.

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

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

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

Notwithstanding the oppositions, the trial court admitted the decedent's holographic will to probate. It found, inter alia:

Considering then that the probate proceedings herein must decide only the question of identity of
the will, its due execution and the testamentary capacity of the testatrix, this probate court finds no
reason at all for the disallowance of the will for its failure to comply with the formalities prescribed
by law nor for lack of testamentary capacity of the testatrix.

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

xxx xxx xxx

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

xxx xxx xxx

As to the question of the testamentary capacity of the testratix, (private respondent) Clemente
Sand himself has testified in Court that the testatrix was completely in her sound mind when he
visited her during her birthday celebration in 1981, at or around which time the holographic will in
 question was executed by the testatrix. To be of sound mind, it is sufficient that the testatrix, at the
time of making the will, knew the value of the estate to be disposed of, the proper object of her
bounty, and the characterof the testamentary act . . . The will itself shows that the testatrix even
had detailed knowledge of the nature of her estate. She even identified the lot number and square
meters of the lots she had conveyed by will. The objects of her bounty were likewise identified
explicitly. And considering that she had even written a nursing book which contained the law and
jurisprudence on will and succession, there is more than sufficient showing that she knows the
character of the testamentary act.

In this wise, the question of identity of the will, its due execution and the testamentary capacity of
the testatrix has to be resolved in favor of the allowance of probate of the will submitted herein.

Likewise, no evidence was presented to show sufficient reason for the disallowance of herein
holographic will. While it was alleged that the said will was procured by undue and improper
pressure and influence on the part of the beneficiary or of some other person, the evidence
adduced have not shown any instance where improper pressure or influence was exerted on the
testatrix. (Private respondent) Clemente Sand has testified that the testatrix was still alert at the
time of the execution of the will, i.e., at or around the time of her birth anniversary celebration in
1981. It was also established that she is a very intelligent person and has a mind of her own. Her
independence of character and to some extent, her sense of superiority, which has been testified to
in Court, all show the unlikelihood of her being unduly influenced or improperly pressured to make
the aforesaid will. It must be noted that the undue influence or improper pressure in question herein
only refer to the making of a will and not as to the specific testamentary provisions therein which is
the proper subject of another proceeding. Hence, under the circumstances, this Court cannot find
convincing reason for the disallowance of the will herein.

Considering then that it is a well-established doctrine in the law on succession that in case of
doubt, testate succession should be preferred over intestate succession, and the fact that no
convincing grounds were presented and proven for the disallowance of the holographic will of the
late Annie Sand, the aforesaid will submitted herein must be admitted to probate. (Citations
3

omitted.)

On appeal, said Decision was reversed, and the petition for probate of decedent's will was dismissed. The Court of
Appeals found that, "the holographic will fails to meet the requirements for its validity." It held that the decedent did
4

not comply with Articles 813 and 814 of the New Civil Code, which read, as follows:

Art. 813: When a number of dispositions appearing in a holographic will are signed without being
dated, and the last disposition has a signature and date, such date validates the dispositions
preceding it, whatever be the time of prior dispositions.

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

It alluded to certain dispositions in the will which were either unsigned and undated, or signed but not dated. It also
found that the erasures, alterations and cancellations made thereon had not been authenticated by decedent.

Thus, this appeal which is impressed with merit.

Section 9, Rule 76 of the Rules of Court provides that will shall be disallowed in any of the following cases:

(a) If not executed and attested as required by law;

(b) If the testator was insane, or otherwise mentally incapable to make a will, at the time of its
execution;

(c) If it was executed under duress, or the influence of fear, or threats;

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

(e) If the signature of the testator was procured by fraud or trick, and he did not intend that the
instrument should be his will at the time of fixing his signature thereto.

In the same vein, Article 839 of the New Civil Code reads:

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

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

(2) If the testator was insane, or otherwise mentally incapable of making a will, at
the time of its execution;

(3) If it was executed through force or under duress, or the influence of fear, or
threats;

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

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

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

These lists are exclusive; no other grounds can serve to disallow a will. Thus, in a petition to admit a holographic will
5

to probate, the only issues to be resolved are: (1) whether the instrument submitted is, indeed, the decedent's last will
and testament; (2) whether said will was executed in accordance with the formalities prescribed by law; (3) whether
the decedent had the necessary testamentary capacity at the time the will was executed; and, (4) whether the
execution of the will and its signing were the voluntary acts of the decedent. 6

In the case at bench, respondent court held that the holographic will of Anne Sand was not executed in accordance
with the formalities prescribed by law. It held that Articles 813 and 814 of the New Civil Code, ante, were not
complied with, hence, it disallowed the probate of said will. This is erroneous.

We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that:

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

For purposes of probating non-holographic wills, these formal solemnities include the subscription, attestation, and
acknowledgment requirements under Articles 805 and 806 of the New Civil Code.

In the case of holographic wills, on the other hand, what assures authenticity is the requirement that they be totally
autographic or handwritten by the testator himself, as provided under Article 810 of the New Civil Code, thus:
7

A person may execute a holographic will which must be entirely written, dated, and signed by the
hand of the testator himself. It is subject to no other form, and may be made in or out of the
Philippines, and need not be witnessed. (Emphasis supplied.)
 Failure to strictly observe other formalities will not result in the disallowance of a holographic will that is
unquestionably handwritten by the testator.

A reading of Article 813 of the New Civil Code shows that its requirement affects the validity of the dispositions
contained in the holographic will, but not its probate. If the testator fails to sign and date some of the dispositions, the
result is that these dispositions cannot be effectuated. Such failure, however, does not render the whole testament
void.

Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance with the provisions of
Article 814. In the case of Kalaw vs. Relova 132 SCRA 237 242 (1984), this Court held:

Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a
holographic Will have not been noted under his signature, . . . the Will is not thereby invalidated as
a whole, but at most only as respects the particular words erased, corrected or interlined. Manresa
gave an identical commentary when he said "la omission de la salvedad no anula el testamento,
segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de 1985." (Citations
8

omitted.)

Thus, unless the unauthenticated alterations, cancellations or insertions were made on the date of the holographic
will or on testator's signature, their presence does not invalidate the will itself. The lack of authentication will only
9 10

result in disallowance of such changes.

It is also proper to note that the requirements of authentication of changes and signing and dating of dispositions
appear in provisions (Articles 813 and 814) separate from that which provides for the necessary conditions for the
validity of the holographic will (Article 810). The distinction can be traced to Articles 678 and 688 of the Spanish Civil
Code, from which the present provisions covering holographic wills are taken. They read as follows:

Art. 678: A will is called holographic when the testator writes it himself in the form and with the
requisites required in Article 688.

Art. 688: Holographic wills may be executed only by persons of full age.

In order that the will be valid it must be drawn on stamped paper corresponding to the year of its
execution, written in its entirety by the testator and signed by him, and must contain a statement of
the year, month and day of its execution.

If it should contain any erased, corrected, or interlined words, the testator must identify them over
his signature.

Foreigners may execute holographic wills in their own language.

This separation and distinction adds support to the interpretation that only the requirements of Article 810 of the New
Civil Code — and not those found in Articles 813 and 814 of the same Code — are essential to the probate of a
holographic will.

The Court of Appeals further held that decedent Annie Sand could not validly dispose of the house and lot located in
Cabadbaran, Agusan del Norte, in its entirety. This is correct and must be affirmed.

As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought
to be probated. However, in exceptional instances, courts are not powerless to do what the situation constrains them
to do, and pass upon certain provisions of the will. In the case at bench, decedent herself indubitably stated in her
11

holographic will that the Cabadbaran property is in the name of her late father, John H. Sand (which led oppositor Dr.
Jose Ajero to question her conveyance of the same in its entirety). Thus, as correctly held by respondent court, she
cannot validly dispose of the whole property, which she shares with her father's other heirs.

IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No.
22840, dated March 30, 1992, is REVERSED and SET ASIDE, except with respect to the invalidity of the disposition
of the entire house and lot in Cabadbaran, Agusan del Norte. The Decision of the Regional Trial Court of Quezon
City, Branch 94 in Sp. Proc. No. Q-37171, dated November 19, 1988, admitting to probate the holographic will of
decedent Annie Sand, is hereby REINSTATED, with the above qualification as regards the Cabadbaran property. No
costs.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.

#Footnotes

1 Sixteenth Division, composed of Associate Justices Luis L. Victor (ponente), Ricardo J. Francisco
(chairman), and Pacita Cañizares-Nye.

2 Presided by Judge Filemon H. Mendoza.

3 Rollo, pp. 37-39.

4 Impugned Decision, p. 5; Rollo, p. 46.

5 Pecson vs. Coronel, 45 Phil. 216 (1923); See 3 EDGARDO L. PARAS, Civil Code of the
Philippines Annotated (1989), pp. 145-146.

6 See Montanaño vs. Suesa, 14 Phil. 676 (1909).

7 See Fernando vs. Villalon, 3 Phil. 386 (1904).

8 See Velasco vs. Lopez, 1 Phil. 720, 725 (1903), citing a Decision of the Supreme Court of Spain,
dated April 4, 1895; See also, 3 MANRESA, Commentarios al Codigo Español (Quinta ed.), p.
483; See further, 3 ARTURO M. TOLENTINO, Commentaries & Jurisprudence on the Civil Code
(1973), p. 107, citing Castan 341, 5 Valverde 82; 3 AMBROSIO PADILLA, Civil Code Annotated
(1987),
pp. 157-158; 2 RAMON C. AQUINO and CAROLINA C. GRIÑO-AQUINO (1990), p. 42.

9 3 PARAS, op. cit.

10 It must be noted, however, that in Kalaw, this Court laid down an exception to the general rule,
when it invalidated the entire will because of an unauthenticated erasure made by the testator. In
that case, the will had only one substantial provision. This was altered by substituting the original
heir with another , with such alteration being unauthenticated. This was altered by substituting the
original heir with another, with such alteration being unauthenticated. This Court held that the whole
will was void "for the simple reason that nothing remains in the Will after (the provision is
invalidated) which could remain valid. To state that the Will as first written should be given efficacy
is to disregard the seeming change of mind of the testatrix. But, that change of mind can neither be
given effect because she failed to authenticate it in the manner required by law by affixing her full
signature."

11 Nepomuceno vs. Court of Appeals, 139 SCRA 206 (1985); See Nuguid vs. Nuguid, 17 SCRA
449 (1966); See also Cayetano vs. Leonidas, 129 SCRA 522 (1984).

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

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

Leandro H. Fernandez for petitioner.

Antonio Quintos and Jose M. Yacat for respondents.

MELENCIO-HERRERA, J.:

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

The holographic Will reads in full as follows:

My Last will and Testament

In the name of God, Amen.

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

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

xxx xxx xxx

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

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

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

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

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

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

SO ORDERED.

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

From that Order, dated September 3, 1973, denying probate, and the Order dated November 2, 1973 denying
reconsideration, ROSA filed this Petition for Review on certiorari on the sole legal question of whether or not
the original unaltered text after subsequent alterations and insertions were voided by the Trial Court for lack of
authentication by the full signature of the testatrix, should be probated or not, with her as sole heir.

Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will
litem not been noted under his signature, ... the Will is not thereby invalidated as a whole, but at most only as
respects the particular words erased, corrected or interlined.1 Manresa gave an Identical commentary when he said "la omision
de la salvedad no anula el testamento, segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de 1895." 2

However, when as in this case, the holographic Will in dispute had only one substantial provision, which was altered
by substituting the original heir with another, but which alteration did not carry the requisite of full authentication by
the full signature of the testator, the effect must be that the entire Will is voided or revoked for the simple reason that
nothing remains in the Will after that which could remain valid. To state that the Will as first written should be given
efficacy is to disregard the seeming change of mind of the testatrix. But that change of mind can neither be given
effect because she failed to authenticate it in the manner required by law by affixing her full signature,

The ruling in Velasco, supra, must be held confined to such insertions, cancellations, erasures or alterations in a
holographic Will, which affect only the efficacy of the altered words themselves but not the essence and validity of the
Will itself. As it is, with the erasures, cancellations and alterations made by the testatrix herein, her real intention
cannot be determined with certitude. As Manresa had stated in his commentary on Article 688 of the Spanish Civil
Code, whence Article 814 of the new Civil Code was derived:

... No infringe lo dispuesto en este articulo del Codigo (el 688) la sentencia que no declara la
nulidad de un testamento olografo que contenga palabras tachadas, enmendadas o entre
renglones no salvadas por el testador bajo su firnia segun previene el parrafo tercero del mismo,
porque, en realidad, tal omision solo puede afectar a la validez o eficacia de tales palabras, y
nunca al testamento mismo, ya por estar esa disposicion en parrafo aparte de aquel que determine
las condiciones necesarias para la validez del testamento olografo, ya porque, de admitir lo
contrario, se Ilegaria al absurdo de que pequefias enmiendas no salvadas, que en nada afectasen
a la parte esencial y respectiva del testamento, vinieran a anular este, y ya porque el precepto
contenido en dicho parrafo ha de entenderse en perfecta armonia y congruencia con el art. 26 de
la ley del Notariado que declara nulas las adiciones apostillas entrerrenglonados, raspaduras y
tachados en las escrituras matrices, siempre que no se salven en la forma prevenida, paro no el
documento que las contenga, y con mayor motivo cuando las palabras enmendadas, tachadas, o
entrerrenglonadas no tengan importancia ni susciten duda alguna acerca del pensamiento del
testador, o constituyan meros accidentes de ortografia o de purez escrituraria, sin trascendencia
alguna(l).

Mas para que sea aplicable la doctrina de excepcion contenida en este ultimo fallo, es preciso que
las tachaduras, enmiendas o entrerrenglonados sin salvar saan de pala bras que no afecter4
alteren ni uarien de modo substancial la express voluntad del testador manifiesta en el documento.
Asi lo advierte la sentencia de 29 de Noviembre de 1916, que declara nulo un testamento olografo
 por no estar salvada por el testador la enmienda del guarismo ultimo del año en que fue
extendido (Emphasis ours).
3

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

SO ORDERED.

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

Relova, J., took no part.

Separate Opinions

TEEHANKEE, J., concurring:

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

Separate Opinions

TEEHANKEE, J., concurring:

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

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". 15From this, petitioner draws the conclusion that Article 854 "does not apply to the case at bar". This
argument fails to appreciate the distinction between pretention and disinheritance.

Preterition "consists in the omission in the testator's will of the forced heirs or anyone of them, either because they
are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly
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.

Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Bengzon, J.P. and Zaldivar, JJ., concur.

G.R. No. 141882 March 11, 2005

J.L.T. AGRO, INC., represented by its Manager, JULIAN L. TEVES, Petitioner,

vs.
ANTONIO BALANSAG and HILARIA CADAYDAY, respondents.

DECISION

TINGA, J.:

Once again, the Court is faced with the perennial conflict of property claims between two sets of heirs, a conflict
ironically made grievous by the fact that the decedent in this case had resorted to great lengths to allocate which
properties should go to which set of heirs.

This is a Rule 45 petition assailing the Decision1 dated 30 September 1999 of the Court of Appeals which reversed
the Decision2 dated 7 May 1993 of the Regional Trial Court (RTC), Branch 45, of Bais City, Negros Oriental.

The factual antecedents follow.

Don Julian L. Teves (Don Julian) contracted two marriages, first with Antonia Baena (Antonia), and after her death,
with Milagros Donio Teves (Milagros Donio). Don Julian had two children with Antonia, namely: Josefa Teves Escaño
(Josefa) and Emilio Teves (Emilio). He had also four (4) children with Milagros Donio, namely: Maria Evelyn Donio
Teves (Maria Evelyn), Jose Catalino Donio Teves (Jose Catalino), Milagros Reyes Teves (Milagros Reyes) and
Pedro Reyes Teves (Pedro).3

The present controversy involves a parcel of land covering nine hundred and fifty-four (954) square meters, known as
Lot No. 63 of the Bais Cadastre, which was originally registered in the name of the conjugal partnership of Don Julian
and Antonia under Original Certificate of Title (OCT) No. 5203 of the Registry of Deeds of Bais City. When Antonia
died, the land was among the properties involved in an action for partition and damages docketed as Civil Case No.
3443 entitled "Josefa Teves Escaño v. Julian Teves, Emilio B. Teves, et al." 4 Milagros Donio, the second wife of Don
Julian, participated as an intervenor. Thereafter, the parties to the case entered into a Compromise
Agreement5 which embodied the partition of all the properties of Don Julian.

On the basis of the compromise agreement and approving the same, the Court of First Instance (CFI) of Negros
Oriental, 12th Judicial District, rendered a Decision6 dated 31 January 1964. The CFI decision declared a tract of land
known as Hacienda Medalla Milagrosa as property owned in common by Don Julian and his two (2) children of the
first marriage. The property was to remain undivided during the lifetime of Don Julian.7 Josefa and Emilio likewise
were given other properties at Bais, including the electric plant, the "movie property," the commercial areas, and the
house where Don Julian was living. The remainder of the properties was retained by Don Julian, including Lot No. 63.

Paragraph 13 of the Compromise Agreement, at the heart of the present dispute, lays down the effect of the eventual
death of Don Julian vis-à-vis his heirs:

13. That in the event of death of Julian L. Teves, the properties hereinafter adjudicated to Josefa Teves
Escaňo and Emilio B. Teves, (excluding the properties comprised as Hacienda Medalla Milagrosa together
 with all its accessories and accessions) shall be understood as including not only their one-half share which
they inherited from their mother but also the legitimes and other successional rights which would correspond
to them of the other half belonging to their father, Julian L. Teves. In other words, the properties now
selected and adjudicated to Julian L. Teves (not including his share in the Hacienda Medalla
Milagrosa) shall exclusively be adjudicated to the wife in second marriage of Julian L. Teves and his four
minor children, namely, Milagros Donio Teves, his two acknowledged natural children Milagros Reyes Teves
and Pedro Reyes Teves and his two legitimated children Maria Evelyn Donio Teves and Jose Catalino
Donio Teves. (Emphasis supplied)

On 16 November 1972, Don Julian, Emilio and Josefa executed a Deed of Assignment of Assets with Assumption of
Liabilities8 in favor of J.L.T. Agro, Inc. (petitioner). Less than a year later, Don Julian, Josefa and Emilio also executed
an instrument entitled Supplemental to the Deed of Assignment of Assets with the Assumption of Liabilities
(Supplemental Deed)9 dated 31 July 1973. This instrument which constitutes a supplement to the earlier deed of
assignment transferred ownership over Lot No. 63, among other properties, in favor of petitioner. 10 On 14 April 1974,
Don Julian died intestate.

On the strength of the Supplemental Deed in its favor, petitioner sought the registration of the subject lot in its name.
A court, so it appeared, issued an order11 cancelling OCT No. 5203 in the name of spouses Don Julian and Antonia
on 12 November 1979, and on the same date TCT No. T-375 was issued in the name of petitioner.12 Since then,
petitioner has been paying taxes assessed on the subject lot. 13

Meanwhile, Milagros Donio and her children had immediately taken possession over the subject lot after the
execution of the Compromise Agreement. In 1974, they entered into a yearly lease agreement with spouses Antonio
Balansag and Hilaria Cadayday, respondents herein.14 On Lot No. 63, respondents temporarily established their
home and constructed a lumber yard. Subsequently, Milagros Donio and her children executed a Deed of
Extrajudicial Partition of Real Estate15 dated 18 March 1980. In the deed of partition, Lot No. 63 was allotted to
Milagros Donio and her two (2) children, Maria Evelyn and Jose Catalino. Unaware that the subject lot was already
registered in the name of petitioner in 1979, respondents bought Lot No. 63 from Milagros Donio as evidenced by
the Deed of Absolute Sale of Real Estate16 dated 9 November 1983.

At the Register of Deeds while trying to register the deed of absolute sale, respondents discovered that the lot was
already titled in the name of petitioner. Thus, they failed to register the deed.17

Respondents, as vendees of Lot No. 63, filed a complaint before the RTC Branch 45 of Bais City, seeking the
declaration of nullity and cancellation of TCT No. T-375 in the name of petitioner and the transfer of the title to Lot No.
63 in their names, plus damages.18

After hearing, the trial court dismissed the complaint filed by respondents. The dispositive portion of the decision
reads:

WHEREFORE, premises considered, by preponderance of evidence, this Court finds judgment in favor of
the defendant and against the plaintiff, and thus hereby orders:

(1) That complaint be dismissed;

(2) That plaintiffs vacate the subject land, particularly identified as Lot No. 63 registered under
Transfer Certificate of Title No. T-375;

(3) That plaintiffs pay costs.

Finding no basis on the counterclaim by defendant, the same is hereby ordered dismissed. 19

The trial court ruled that the resolution of the case specifically hinged on the interpretation of paragraph 13 of
the Compromise Agreement.20 It added that the direct adjudication of the properties listed in the Compromise
Agreement was only in favor of Don Julian and his two children by the first marriage, Josefa and Emilio. 21Paragraph
13 served only as an amplification of the terms of the adjudication in favor of Don Julian and his two children by the
first marriage.
According to the trial court, the properties adjudicated in favor of Josefa and Emilio comprised their shares in the
estate of their deceased mother Antonia, as well as their potential share in the estate of Don Julian upon the latter’s
death. Thus, upon Don Julian’s death, Josefa and Emilio could not claim any share in his estate, except their proper
share in the Hacienda Medalla Milagrosa which was adjudicated in favor of Don Julian in the Compromise
Agreement. As such, the properties adjudicated in favor of Don Julian, except Hacienda Medalla Milagrosa, were free
from the forced legitimary rights of Josefa and Emilio, and Don Julian was under no impediment to allocate the
subject lot, among his other properties, to Milagros Donio and her four (4) children.22

The trial court further stressed that with the use of the words "shall be," the adjudication in favor of Milagros Donio
and her four (4) children was not final and operative, as the lot was still subject to future disposition by Don Julian
during his lifetime.23 It cited paragraph 1424 of the Compromise Agreement in support of his conclusion.25 With Lot No.
63 being the conjugal property of Don Julian and Antonia, the trial court also declared that Milagros Donio and her
children had no hereditary rights thereto except as to the conjugal share of Don Julian, which they could claim only
upon the death of the latter.26

The trial court ruled that at the time of Don Julian’s death on 14 April 1974, Lot No. 63 was no longer a part of his
estate since he had earlier assigned it to petitioner on 31 July 1973. Consequently, the lot could not be a proper
subject of extrajudicial partition by Milagros Donio and her children, and not being the owners they could not have
sold it. Had respondents exercised prudence before buying the subject lot by investigating the registration of the
same with the Registry of Deeds, they would have discovered that five (5) years earlier, OCT No. 5203 had already
been cancelled and replaced by TCT No. T-375 in the name of petitioner, the trial court added.27

The Court of Appeals, however, reversed the trial court’s decision. The decretal part of the appellate decision reads:

WHEREFORE, premises considered, the decision appealed from is hereby REVERSED and SET ASIDE
and a new one is entered declaring the Transfer Certificate of Title No. T-375 registered in the name of
J.L.T. Agro, Inc. as null and void.

With costs against defendant J.L.T. Agro, Inc. represented by its Manager, Julian L. Teves.

SO ORDERED.28

Per the appellate court, the Compromise Agreement incorporated in CFI decision dated 31 January 1964, particularly
paragraph 13 thereof, determined, adjudicated and reserved to Don Julian’s two sets of heirs their future legitimes in
his estate except as regards his (Don Julian’s) share in Hacienda Medalla Milagrosa. 29 The two sets of heirs acquired
full ownership and possession of the properties respectively adjudicated to them in the CFI decision and Don Julian
himself could no longer dispose of the same, including Lot No. 63. The disposition in the CFI decision constitutes res
judicata.30 Don Julian could have disposed of only his conjugal share in the Hacienda Medalla Milagrosa.31

The appellate court likewise emphasized that nobody in his right judgment would preterit his legal heirs by simply
executing a document like the Supplemental Deed which practically covers all properties which Don Julian had
reserved in favor of his heirs from the second marriage. It also found out that the blanks reserved for the Book No.
and Page No. at the upper right corner of TCT No. T-375, "to identify the exact location where the said title was
registered or transferred," were not filled up, thereby indicating that the TCT is "spurious and of dubious origin." 32

Aggrieved by the appellate court’s decision, petitioner elevated it to this Court via a petition for review on certiorari,
raising pure questions of law.

Before this Court, petitioner assigns as errors the following rulings of the appellate court, to wit: (a) that future legitime
can be determined, adjudicated and reserved prior to the death of Don Julian; (b) that Don Julian had no right to
dispose of or assign Lot No. 63 to petitioner because he reserved the same for his heirs from the second marriage
pursuant to the Compromise Agreement; (c) that the Supplemental Deed was tantamount to a preterition of his heirs
from the second marriage; and (d) that TCT No. T-375 in the name of petitioner is spurious for not containing entries
on the Book No. and Page No.33

While most of petitioner’s legal arguments have merit, the application of the appropriate provisions of law to the facts
borne out by the evidence on record nonetheless warrants the affirmance of the result reached by the Court of
Appeals in favor of respondents.
Being the key adjudicative provision, paragraph 13 of the Compromise Agreement has to be quoted again:

13. That in the event of death of Julian L. Teves, the properties herein adjudicated to Josefa Teves Escaño
and Emilio B. Teves, (excluding the properties comprised as Hacienda Medalla Milagrosa together with all
its accessories and accessions) shall be understood as including not only their one-half share which they
inherited from their mother but also the legitimes and other successional rights which would correspond to
them of the other half belonging to their father, Julian L.Teves. In other words, the properties now
selected and adjudicated to Julian L. Teves (not including his share in the Hacienda Medalla
Milagrosa) shall exclusively be adjudicated to the wife in second marriage of Julian L. Teves and his
four minor children, namely, Milagros Donio Teves, his two acknowledged natural children Milagros
Reyes Teves and Pedro Reyes Teves and his two legitimated children Maria Evelyn Donio Teves and
Jose Catalino Donio Teves." (Emphasis supplied)

With the quoted paragraph as basis, the Court of Appeals ruled that the adjudication in favor of the heirs of Don
Julian from the second marriage became automatically operative upon the approval of the Compromise Agreement,
thereby vesting on them the right to validly dispose of Lot No. 63 in favor of respondents.

Petitioner argues that the appellate court erred in holding that future legitime can be determined, adjudicated and
reserved prior to the death of Don Julian. The Court agrees. Our declaration in Blas v. Santos34 is relevant, where we
defined future inheritance as any property or right not in existence or capable of determination at the time of the
contract, that a person may in the future acquire by succession. Article 1347 of the New Civil Code explicitly
provides:

ART. 1347. All things which are not outside the commerce of men, including future things, may be the object
of a contract. All rights which are not intransmissible may also be the object of contracts.

No contract may be entered into upon future inheritance except in cases expressly authorized by
law.

All services which are not contrary to law, morals, good customs, public order or public policy may likewise be the
object of a contract.

Well-entrenched is the rule that all things, even future ones, which are not outside the commerce of man may be the
object of a contract. The exception is that no contract may be entered into with respect to future inheritance, and the
exception to the exception is the partition inter vivos referred to in Article 1080.35

For the inheritance to be considered "future," the succession must not have been opened at the time of the
contract.36 A contract may be classified as a contract upon future inheritance, prohibited under the second paragraph
of Article 1347, where the following requisites concur:

(1) That the succession has not yet been opened;

(2) That the object of the contract forms part of the inheritance; and

(3) That the promissor has, with respect to the object, an expectancy of a right which is purely hereditary in
nature.37

The first paragraph of Article 1080, which provides the exception to the exception and therefore aligns with the
general rule on future things, reads:

ART. 1080. Should a person make a partition of his estate by an act inter vivos, or by will, such partition
shall be respected, insofar as it does not prejudice the legitime of the compulsory heirs.

....

In interpreting this provision, Justice Edgardo Paras advanced the opinion that if the partition is made by an act inter
vivos, no formalities are prescribed by the Article.38 The partition will of course be effective only after death. It
does not necessarily require the formalities of a will for after all it is not the partition that is the mode of acquiring
ownership. Neither will the formalities of a donation be required since donation will not be the mode of acquiring the
ownership here after death; since no will has been made it follows that the mode will be succession (intestate
succession). Besides, the partition here is merely the physical determination of the part to be given to each heir. 39

The historical antecedent of Article 1080 of the New Civil Code is Article 1056 40 of the old Civil Code. The only
change in the provision is that Article 1080 now permits any person (not a testator, as under the old law) to partition
his estate by act inter vivos. This was intended to abrogate the then prevailing doctrine that for a testator to partition
his estate by an act inter vivos, he must first make a will with all the formalities provided by law. 41

Article 1056 of the old Civil Code (now Article 1080) authorizes a testator to partition inter vivos his property, and
distribute them among his heirs, and this partition is neither a donation nor a testament, but an instrument of a
special character, sui generis, which is revocable at any time by the causante during his lifetime, and does not
operate as a conveyance of title until his death. It derives its binding force on the heirs from the respect due to the
will of the owner of the property, limited only by his creditors and the intangibility of the legitime of the forced heirs. 42

The partition inter vivos of the properties of Don Julian is undoubtedly valid pursuant to Article 1347. However,
considering that it would become legally operative only upon the death of Don Julian, the right of his heirs from the
second marriage to the properties adjudicated to him under the compromise agreement was but a mere expectancy.
It was a bare hope of succession to the property of their father. Being the prospect of a future acquisition, the interest
by its nature was inchoate. It had no attribute of property, and the interest to which it related was at the time
nonexistent and might never exist.43

Evidently, at the time of the execution of the deed of assignment covering Lot No. 63 in favor of petitioner, Don Julian
remained the owner of the property since ownership over the subject lot would only pass to his heirs from the second
marriage at the time of his death. Thus, as the owner of the subject lot, Don Julian retained the absolute right to
dispose of it during his lifetime. His right cannot be challenged by Milagros Donio and her children on the ground that
it had already been adjudicated to them by virtue of the compromise agreement.

Emerging as the crucial question in this case is whether Don Julian had validly transferred ownership of the subject
lot during his lifetime. The lower court ruled that he had done so through the Supplemental Deed. The appellate court
disagreed, holding that the Supplemental Deed is not valid, containing as it does a prohibited preterition of Don
Julian’s heirs from the second marriage. Petitioner contends that the ruling of the Court of Appeals is erroneous. The
contention is well-founded.

Article 854 provides that 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. Manresa defines preterition as
the omission of the heir in the will, either by not naming him at all or, while mentioning him as father, son, etc., by not
instituting him as heir without disinheriting him expressly, nor assigning to him some part of the properties. 44 It is the
total omission of a compulsory heir in the direct line from inheritance. 45 It consists in the silence of the testator with
regard to a compulsory heir, omitting him in the testament, either by not mentioning him at all, or by not giving him
anything in the hereditary property but without expressly disinheriting him, even if he is mentioned in the will in the
latter case.46 But there is no preterition where the testator allotted to a descendant a share less than the legitime,
since there was no total omission of a forced heir.47

In the case at bar, Don Julian did not execute a will since what he resorted to was a partition inter vivos of his
properties, as evidenced by the court approved Compromise Agreement. Thus, it is premature if not irrelevant to
speak of preterition prior to the death of Don Julian in the absence of a will depriving a legal heir of his legitime.
Besides, there are other properties which the heirs from the second marriage could inherit from Don Julian upon his
death. A couple of provisions in the Compromise Agreement are indicative of Don Julian’s desire along this
line.48Hence, the total omission from inheritance of Don Julian’s heirs from the second marriage, a requirement for
preterition to exist, is hardly imaginable as it is unfounded.

Despite the debunking of respondents’ argument on preterition, still the petition would ultimately rise or fall on
whether there was a valid transfer effected by Don Julian to petitioner. Notably, Don Julian was also the president
and director of petitioner, and his daughter from the first marriage, Josefa, was the treasurer thereof. There is of
course no legal prohibition against such a transfer to a family corporation. Yet close scrutiny is in order, especially
considering that such transfer would remove Lot No. 63 from the estate from which Milagros and her children could
inherit. Both the alleged transfer deed and the title which necessarily must have emanated from it have to be
subjected to incisive and detailed examination.

Well-settled, of course, is the rule that a certificate of title serves as evidence of an indefeasible title to the property in
favor of the person whose name appears therein.49 A certificate of title accumulates in one document a precise and
correct statement of the exact status of the fee held by its owner. The certificate, in the absence of fraud, is the
evidence of title and shows exactly the real interest of its owner. 50

To successfully assail the juristic value of what a Torrens title establishes, a sufficient and convincing quantum of
evidence on the defect of the title must be adduced to overcome the predisposition in law in favor of a holder of a
Torrens title. Thus, contrary to the appellate court’s ruling, the appearance of a mere thumbmark of Don Julian
instead of his signature in the Supplemental Deed would not affect the validity of petitioner’s title for this Court has
ruled that a thumbmark is a recognized mode of signature. 51

The truth, however, is that the replacement of OCT No. 5203 in the name of Julian by T.C.T. No. T-375 is marred by
a grave irregularity which is also an illegality, as it contravenes the orthodox, conventional and normal process
established by law. And, worse still, the illegality is reflected on the face of both titles. Where, as in this case, the
transferee relies on a voluntary instrument to secure the issuance of a new title in his name such instrument has to be
presented to the Registry of Deeds. This is evident from Sections 53 and 57 of Presidential Decree (P.D.) No. 1529
or the Property Registration Decree. The sections read, thus:

SEC. 53. Presentation of owner’s duplicate upon entry of new certificate. – No voluntary instrument shall
be registered by the Register of Deeds unless the owner’s duplicate certificate is presented with such
instrument, except in cases expressly provided for in this Decree or upon order of the court, for cause
shown. (Emphasis supplied)

....

SEC. 57. Procedure in registration of conveyances. – An owner desiring to convey his registered land in fee
simple shall execute and register a deed of conveyance in a form sufficient in law. The Register of
Deeds shall thereafter make out in the registration book a new certificate of title to the grantee and shall
prepare and deliver to him an owner’s duplicate certificate. The Register of Deeds shall note upon the
original and duplicate certificate the date of transfer, the volume and page of the registration book in which
the new certificate is registered and a reference by number to the last preceding certificate. The original and
the owner’s duplicate of the grantor’s certificate shall be stamped "cancelled." The deed of conveyance
shall be filed and endorsed with the number and the place of registration of the certificate of title of
the land conveyed. (Emphasis supplied)

As petitioner bases its right to the subject lot on the Supplemental Deed, it should have presented it to the Register of
Deeds to secure the transfer of the title in its name. Apparently, it had not done so. There is nothing on OCT No.
5203 or on the succeeding TCT No. T-375 either which shows that it had presented the Supplemental Deed. In fact,
there is absolutely no mention of a reference to said document in the original and transfer certificates of title. It is in
this regard that the finding of the Court of Appeals concerning the absence of entries on the blanks intended for the
Book No. and Page No. gains significant relevance. Indeed, this aspect fortifies the conclusion that the cancellation of
OCT No. 5203 and the consequent issuance of TCT No. T-375 in its place are not predicated on a valid transaction.

What appears instead on OCT No. 5203 is the following pertinent entry:

Entry No. 1374: Kind: Order: Executed in favor of J.L.T. AGRO, INC.

CONDITIONS: Lost owner’s duplicate is hereby cancelled, and null and void and a new Certificate of
Title No. 375 is issued per Order of the Court of First Instance on file in this office.

Date of Instrument: November 12, 1979

Date of Inscription: Nov. 12, 1979 4:00 P.M.

 (SGD) MANUEL C. MONTESA
Acting Deputy Register of Deeds II
(Emphasis supplied)52

What the entry indicates is that the owner’s duplicate of OCT No. 5203 was lost, a petition for the reconstitution of the
said owner’s duplicate was filed in court, and the court issued an order for the reconstitution of the owner’s duplicate
and its replacement with a new one. But if the entry is to be believed, the court concerned (CFI, according to the
entry) issued an order for the issuance of a new title which is TCT No. T-375 although the original of OCT No. 5203
on file with the Registry of Deeds had not been lost.

Going by the legal, accepted and normal process, the reconstitution court may order the reconstitution and
replacement of the lost title only, nothing else. Since what was lost is the owner’s copy of OCT No. 5203, only that
owner’s copy could be ordered replaced. Thus, the Register of Deeds exceeded his authority in issuing not just a
reconstituted owner’s copy of the original certificate of title but a new transfer certificate of title in place of the original
certificate of title. But if the court order, as the entry intimates, directed the issuance of a new transfer certificate of
title—even designating the very number of the new transfer certificate of title itself—the order would be patently
unlawful. A court cannot legally order the cancellation and replacement of the original of the O.C.T. which has not
been lost,53 as the petition for reconstitution is premised on the loss merely of the owner’s duplicate of the OCT

Apparently, petitioner had resorted to the court order as a convenient contrivance to effect the transfer of title to the
subject lot in its name, instead of the Supplemental Deed which should be its proper course of action. It was so
constrained to do because the Supplemental Deed does not constitute a deed of conveyance of the "registered land
in fee simple" "in a form sufficient in law," as required by Section 57 of P.D. No. 1529.

A plain reading of the pertinent provisions of the Supplemental Deed discloses that the assignment is not supported
by any consideration. The provision reads:

....

WHEREAS, in the Deed of Assignment of Assets with the Assumption of Liabilities executed by Julian L.
Teves, Emilio B. Teves and Josefa T. Escaño at Dumaguete City on 16th day of November 1972 and ratified
in the City of Dumaguete before Notary Public Lenin Victoriano, and entered in the latter’s notarial register
as Doc. No. 367; Page No. 17; Book No. V; series of 1972, Julian L. Teves, Emilio B. Teves and Josefa T.
Escaño, transferred, conveyed and assigned unto J.L.T. AGRO, INC., all its assets and liabilities as
reflected in the Balance Sheet of the former as of December 31, 1971.

WHEREAS, on the compromise agreement, as mentioned in the Decision made in the Court of First
Instance of Negros Oriental, 12th Judicial District Branch II, on Dec. 31, 1964 pertaining to Civil Case No.
3443 the following properties were adjudicated to Don Julian L. Teves. We quote.

From the properties at Bais

Adjudicated to Don Julian L.Teves

....

Lot No. 63, Tax Dec. No. 33, Certificate of Title No. 5203, together with all improvements. Assessed value -
P2,720.00

....

WHEREAS, this Deed of Assignment is executed by the parties herein in order to effect the registration of
the transfer of the above corporation.

NOW, THEREFORE, for and in consideration of the above premises the ASSIGNOR hereby transfers,
conveys, and assigns unto J.L.T. AGRO, INC., the above described parcel of land[s] with a fair market
value of EIGHTY-FOUR THOUSAND PESOS (P84,000.00), Philippine Currency, and which transfer,
conveyance and assignment shall become absolute upon signing. 54 (Emphasis supplied)
The amount of P84,000.00 adverted to in the dispositive portion of the instrument does not represent the
consideration for the assignment made by Don Julian. Rather, it is a mere statement of the fair market value of allthe
nineteen (19) properties enumerated in the instrument, of which Lot No. 63 is just one, that were transferred by Don
Julian in favor of petitioner. Consequently, the testimony55 of petitioner’s accountant that the assignment is supported
by consideration cannot prevail over the clear provision to the contrary in the Supplemental Deed.

The Court of Appeals, on the other hand, apparently considered the 1948 mortgage which is annotated on the back
of the TCT No. T-375 as the consideration for the assignment.56 However, the said annotation57 shows that the
mortgage was actually executed in favor of Rehabilitation Finance Corporation, not of petitioner. 58 Clearly, said
mortgage, executed as it was in favor of the Rehabilitation Finance Corporation and there being no showing that
petitioner itself paid off the mortgate obligation, could not have been the consideration for the assignment to
petitioner.

Article 1318 of the New Civil Code enumerates the requisites of a valid contract, namely: (1) consent of the
contracting parties; (2) object certain which is the subject matter of the contract; and (3) Cause of the obligation
which is established.

Thus, Article 1352 declares that contracts without cause, or with unlawful cause produce no effect whatsoever. Those
contracts lack an essential element and they are not only voidable but void or inexistent pursuant to Article 1409,
paragraph (2).59 The absence of the usual recital of consideration in a transaction which normally should be
supported by a consideration such as the assignment made by Don Julian of all nineteen (19) lots he still had at the
time, coupled with the fact that the assignee is a corporation of which Don Julian himself was also the President and
Director, forecloses the application of the presumption of existence of consideration established by law.60

Neither could the Supplemental Deed validly operate as a donation. Article 749 of the New Civil Code is clear on the
point, thus:

Art. 749. In order that the donation of the immovable may be valid, it must be made in a public document,
specifying therein the property donated and the value of the charges which the donee must satisfy.

The acceptance may be made in the same deed of donation or in a separate public document, but it shall
not take effect unless it is done during the lifetime of the donor.

If the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic form,
and this step shall be noted in both instruments.

In Sumipat, et al v. Banga, et al.,61 this Court declared that title to immovable property does not pass from the donor
to the donee by virtue of a deed of donation until and unless it has been accepted in a public instrument and the
donor duly notified thereof. The acceptance may be made in the very same instrument of donation. If the acceptance
does not appear in the same document, it must be made in another. Where the deed of donation fails to show the
acceptance, or where the formal notice of the acceptance, made in a separate instrument, is either not given to the
donor or else not noted in the deed of donation and in the separate acceptance, the donation is null and void.

In the case at bar, although the Supplemental Deed appears in a public document,62 the absence of acceptance by
the donee in the same deed or even in a separate document is a glaring violation of the requirement.

One final note. From the substantive and procedural standpoints, the cardinal objectives to write finis to a protracted
litigation and avoid multiplicity of suits are worth pursuing at all times. 63 Thus, this Court has ruled that appellate
courts have ample authority to rule on specific matters not assigned as errors or otherwise not raised in an appeal, if
these are indispensable or necessary to the just resolution of the pleaded issues. 64 Specifically, matters not assigned
as errors on appeal but consideration of which are necessary in arriving at a just decision and complete resolution of
the case, or to serve the interest of justice or to avoid dispensing piecemeal justice.65

In the instant case, the correct characterization of the Supplemental Deed, i.e., whether it is valid or void, is
unmistakably determinative of the underlying controversy. In other words, the issue of validity or nullity of the
instrument which is at the core of the controversy is interwoven with the issues adopted by the parties and the rulings
of the trial court and the appellate court.66 Thus, this Court is also resolute in striking down the alleged deed in this
case, especially as it appears on its face to be a blatant nullity.
WHEREFORE, foregoing premises considered, the Decision dated 30 September 1999 of the Court of Appeals is
hereby AFFIRMED. Costs against petitioner J.L.T. Agro, Inc.

SO ORDERED.

Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Chico-Nazario, JJ., concur.

G.R. No. L-57848 June 19, 1982

RAFAEL E. MANINANG and SOLEDAD L. MANINANG, petitioners,

vs.
COURT OF APPEALS, HON. RICARDO L. PRONOVE, JR., as Judge of the Court of First Instance of Rizal and
BERNARDO S. ASENETA, respondents.

MELENCIO-HERRERA, J.:

A Petition to Review the Decision of April 28, 1981 of respondent Appellate Court in CA-G.R. No. 12032-R entitled
"Rafael E. Maninang and Soledad L. Maninang vs. Hon. Ricardo Pronove, Judge of the Court of First Instance of
Rizal, Pasig, Branch XI, and Bernardo S. Aseneta".

Pertinent to the controversy are the following antecedental facts:

On May 21, 1977, Clemencia Aseneta, single, died at the Manila Sanitarium Hospital at age 81. She left a
holographic will, the pertinent portions of which are quoted hereunder:

xxx xxx xxx

It is my will that all my real properties located in Manila, Makati, Quezon City, Albay and Legaspi
City and all my personal properties shagllbe inherited upon my death by Dra. Soledad L. Maninang
with whose family I have lived continuously for around the last 30 years now. Dra. Maninang and
her husband Pamping have been kind to me. ... I have found peace and happiness with them even
during the time when my sisters were still alive and especially now when I am now being troubled
by my nephew Bernardo and niece Salvacion. I am not incompetent as Nonoy would like me to
appear. I know what is right and wrong. I can decide for myself. I do not consider Nonoy as my
adopted son. He has made me do things against my will.

xxx xxx xxx

On June 9, 1977, petitioner Soledad Maninang filed a Petition for probate of the Will of the decedent with the Court of
First Instance-Branch IV, Quezon City (Sp. Proc. No. Q-23304, hereinafter referred to as the Testate Case).

On July 25, 1977, herein respondent Bernardo Aseneta, who, as the adopted son, claims to be the sole heir of
decedent Clemencia Aseneta, instituted intestate proceedings with the Court of First Instance-Branch XI, Pasig, Rizal
(Sp. Proc. No. 8569, called hereinafter the Intestate Case" for brevity).

On December 23, 1977, the Testate and Intestate Cases were ordered consolidated before Branch XI, presided by
respondent Judge.

Respondent Bernardo then filed a Motion to Dismiss the Testate Case on the ground that the holographic will was
null and void because he, as the only compulsory heir, was preterited and, therefore, intestacy should ensue. In
support of said Motion to Dismiss, respondent Bernardo cited the cases of Neri vs. Akutin (72 Phil. 322); Nuguid vs.
Nuguid (17 SCRA 449), and Ramos vs. Baldovino (2 CA Rep. 2nd, 878). 1

In her Opposition to said Motion to Dismiss, petitioner Soledad averred that it is still the rule that in a case
for 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; and that respondent Bernardo was effectively disinherited by the decedent. 2

On September 8, 1980, the lower Court ordered the dismissal of the Testate Case in this wise:

For reasons stated in the motion to dismiss filed by petitioner Bernardo S. Aseneta which the Court
finds meritorious, the petition for probate of will filed by Soledad L. Maninang and which was
docketed as Sp. Proc. No. Q-23304 is DISMISSED, without pronouncement as to costs.

On December 19, 1980, the lower Court denied reconsideration for lack of merit and in the same Order appointed
Bernardo as the administrator of the intestate estate of the deceased Clemencia Aseneta "considering that he is a
forced heir of said deceased while oppositor Soledad Maninang is not, and considering further that Bernardo Aseneta
has not been shown to be unfit to perform the duties of the trust. "

Petitioners Maninang resorted to a certiorari Petition before respondent Court of Appeals alleging that the lower Court
exceeded its jurisdiction in issuing the Orders of dismissal of the Testate Case (September 8, 1980) and denial of
reconsideration (December 19, 1980).

On April 28, 1981, respondent Court 3 denied certiorari and ruled that the trial Judge's Order of dismissal was
final in nature as it finally disposed of the Testate Case and, therefore, appeal was the proper remedy,
which petitioners failed to avail of. Continuing, it said that even granting that the lower Court committed
errors in issuing the questioned Orders, those are errors of judgment reviewable only by appeal and not
by Certiorari. 'Thus, this Petition before us.

We find that the Court a quo a quo acted in excess of its jurisdiction when it dismissed the Testate Case. Generally,
the probate of a Will is mandatory.

No will shall pass either real or personal property unless it is proved and allowed in accordance
with the Rules of Court. 4

The law enjoins the probate of the Will and public policy requires it, because unless the Will is probated
and notice thereof given to the whole world, the right of a person to dispose of his property by Will may be
rendered nugatory. 5

Normally, the probate of a Will does not look into its intrinsic validity.

... The authentication of a will decides no other question than such as touch upon the capacity of
the testator and the compliance with those requisites or solemnities which the law prescribes for
the validity of wills. It does not determine nor even by implication prejudge the validity or efficiency
(sic) of the provisions, these may be impugned as being vicious or null, notwithstanding its
authentication. The que0stions relating to these points remain entirely unaffected, and may be
raised even after the will has been authenticated .... 6

Opposition to the intrinsic validity or legality of the provisions of the will cannot be entertained in
Probate proceeding because its only purpose is merely to determine if the will has been executed
in accordance with the requirements of the law. 7

Respondent Bernardo, however, relies on the pronouncement in Nuguid vs. Nuguid 8, reading:

In a proceeding 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 prescribed by law. The
 intrinsic validity of the will normally comes only after the court has declared that the will has been
duly authenticated. However, where practical considerations demand that the intrinsic validity of the
will be passed upon, even before it is probated, the Court should meet that issue. (Emphasis
supplied)

Our ruling in Balanay vs. Hon. Martinez 9 had a similar thrust:

The trial court acted correctly in passing upon the will's intrinsic validity even before its formal
validity had been established. The probate of a will might become an Idle ceremony if on its face it
appears to be intrinsically void. Where practical considerations demand that the intrinsic validity of
the will be passed upon, even before it is probated, the court should meet the issue.

The Nuguid and the Balanay cases provide the exception rather than the rule. The intrinsic validity of the Wills in
those cases was passed upon even before probate because "practical considerations" so demanded. Moreover, for
the parties in the Nuguid case, the "meat of the controversy" was the intrinsic validity of the Will; in fact, the parties in
that case "shunted aside the question of whether or not the Will should be allowed probate." Not so in the case before
us now where the probate of the Will is insisted on by petitioners and a resolution on the extrinsic validity of the Will
demanded.

Moreover, in the Nuguid case, this Court ruled that the Will was intrinsically invalid as it completely preterited the
parents of the testator. In the instant case, a crucial issue that calls for resolution is whether under the terms of the
decedent's Will, private respondent had been preterited or disinherited, and if the latter, whether it was a valid
disinheritance. Preterition and disinheritance are two diverse concepts.

... 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." (Neri vs. Akutin, 72 Phil. 325). Disinheritance, in turn, "is a
testamentary disposition depriving any compulsory heirs of his share in the legitimate for a cause
authorized by law." (Justice J.B.L. Reyes and R.C. Puno, "An Outline of Philippine Civil Law", 1956
ed., Vol. III, p. 8, citing cases) Disinheritance is always "voluntary", preterition upon the other hand,
is presumed to be "involuntary" (Sanchez Roman, Estudios de Derecho Civil 2nd edition, Volume
2.o p. 1131). 10

The effects of preterition and disinheritance are also totally different.

... The effects flowing from preterition are totally different from those of disinheritance. Pretention
under Article 854 of the New Civil Code shall annul the institution of heir. This annulment is in toto,
unless in the wail 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", but only "insofar as it may prejudice the person disinherited",
which last phrase was omitted in the case of preterition (III Tolentino, Civil Code of the Philippines,
1961 Edition, p. 172). Better stated yet, in disinheritance the nullity is limited to that portion of the
estate of which the disinherited heirs have been illegally deprived. 11

By virtue of the dismissal of the Testate Case, the determination of that controversial issue has not been
thoroughly considered. We gather from the assailed Order of the trial Court that its conclusion was that
respondent Bernardo has been preterited We are of opinion, however, that from the face of the Will, that
conclusion is not indubitable.

As held in the case of Vda. de Precilla vs. Narciso 12

... it is as important a matter of public interest that a purported will is not denied legalization on
dubious grounds. Otherwise, the very institution of testamentary succession will be shaken to its
foundation, ...

Coming now to the procedural aspect, suffice it to state that in view of our finding that respondent Judge had acted in
excess of his jurisdiction in dismissing the Testate Case, certiorari is a proper remedy. An act done by a Probate
Court in excess of its jurisdiction may be corrected by Certiorari. 13 And even assuming the existence of the
remedy of appeal, we harken 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.

WHEREFORE, the Decision in question is set aside and the Orders of the Court of First Instance-Branch XI, Rizal,
dated September 8, 1980 and December 19, 1980, are nullified. Special Proceeding No. Q-23304 is hereby
remanded to said Court of First Instance-Branch XI. Rizal, therein to be reinstated and consolidated with Special
Proceeding No. 8569 for further proceedings.

No pronouncement as to costs.

SO ORDERED.

Teehankee (Chairman), Makasiar, Plana and Relova JJ., concur.

Vasquez, J., took no part.

Gutierrez, Jr., J., I concur.

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.

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

G.R. No. 6878 September 13, 1913

MARCELINA EDROSO, petitioner-appellant,

vs.
PABLO and BASILIO SABLAN, opponents-appellees.

Francisco Dominguez for appellant.

Crispin Oben for appellees.

ARELLANO, C.J.:

The subject matter of this appeal is the registration of certain property classified as required by law to be reserved.
Marcelina Edroso applied for registration and issuance of title to two parcels of land situated in the municipality of
Pagsanjan, Province of Laguna, one of 1 hectare 77 ares and 63 centares, and the other 1 hectare 6 ares and 26
centares. Two applications were filed, one for each parcel, but both were heard and decided in a single judgment.

Marcelina Edroso was married to Victoriano Sablan until his death on September 22, 1882. In this marriage they had
a son named Pedro, who was born on August 1, 1881, and who at his father's death inherited the two said parcels.
Pedro also died on July 15, 1902, unmarried and without issue and by this decease the two parcels of land passed
through inheritance to his mother, Marcelina Edroso. Hence the hereditary title whereupon is based the application
for registration of her ownership.

Two legitimate brothers of Victoriano Sablan — that is, two uncles german of Pedro Sablan — appeared in the case
to oppose the registration, claiming one of two things: Either that the registration be denied, "or that if granted to her
the right reserved by law to the opponents be recorded in the registration of each parcel." (B. of E., 11, 12.)

The Court of Land Registration denied the registration and the application appealed through a bill of exceptions.

Registration was denied because the trial court held that the parcels of land in question partake of the nature of
property required by law to be reserved and that in such a case application could only be presented jointly in the
names of the mother and the said two uncles of Pedro Sablan.

The appellant impugns as erroneous the first idea advanced (second assignment of error), and denies that the land
which are the subject matter of the application are required by law to be reserved — a contention we regard as
indefensible.

Facts: (1) The applicant acquired said lands from her descendant Pedro Sablan by inheritance; (2) Pedro Sablan had
acquired them from his ascendant Victoriano Sablan, likewise by inheritance; (3) Victoriano Sablan had likewise
acquired them by inheritance from his ascendants, Mariano Sablan and Maria Rita Fernandez, they having been
adjudicated to him in the partition of hereditary property had between him and his brothers. These are admitted facts.

A very definite conclusions of law is that the hereditary title is one without a valuable consideration [gratuitous title],
and it is so characterized in article 968 of the Civil Code, for he who acquires by inheritance gives nothing in return for
what he receives; and a very definite conclusion of law also is that the uncles german are within the third degree of
blood relationship.

The ascendant who inherits from his descendant property which the latter acquired without a valuable
consideration from another ascendant, or from a brother or sister, is under obligation to reserve what he has
acquired by operation of law for the relatives who are within the third degree and belong to the line whence
the property proceeded. (Civil Code, art. 811.)

Marcelina Edroso, ascendant of Pedro Sablan, inherited from him these two parcels of land which he had acquired
without a valuable consideration — that is, by inheritance from another ascendant, his father Victoriano. Having
acquired them by operation of law, she is obligated to relatives within the third degree and belong to the line of
Mariano Sablan and Maria Rita Fernandez, whence the lands proceeded. The trial court's ruling that they partake of
the nature property required by law to be reserved is therefore in accordance with the law.
But the appellant contends that it is not proven that the two parcels of land in question have been acquired by
operation of law, and that only property acquired without a valuable consideration, which is by operation of law, is
required by law to reserved.

The appellees justly argue that this defense was not alleged or discussed in first instance, but only herein. Certainly,
the allegation in first instance was merely that "Pedro Sablan acquired the property in question in 1882, before the
enforcement of the Civil Code, which establishes the alleged right required by law to be reserved, of which the
opponents speak; hence, prescription of the right of action; and finally, opponents' renunciation of their right,
admitting that it existed and that they had it" (p. 49).

However that be, it is not superflous to say, although it may be unnecessary, that the applicant inherited the two
parcels of land from her son Pedro, who died "unmarried and without issue." The trial court so held as a conclusion of
fact, without any objection on the appellant's part. (B. of E., 17, 20.) When Pedro Sablan died without issue, his
mother became his heir by virtue of her right to her son's legal portion under article 935 of the Civil Code:

In the absence of legitimate children and descendants of the deceased, his ascendants shall from him, to
the exclusion of collaterals.

The contrary could only have occurred if the heiress had demonstrated that any of these lands had passed into her
possession by free disposal in her son's will; but the case presents no testamentary provision that demonstrate any
transfer of property from the son to the mother, not by operation of law, but by her son's wish. The legal presumption
is that the transfer of the two parcels of land was abintestate or by operation of law, and not by will or the wish of the
predecessor in interest. (Act No. 190, sec. 334, No. 26.) All the provision of article 811 of the Civil Code have
therefore been fully complied with.

If Pedro Sablan had instituted his mother in a will as the universal heiress of his property, all he left at death would
not be required by law to be reserved, but only what he would have perforce left her as the legal portion of a
legitimate ascendant.

The legal portion of the parents or ascendants is constituted by one-half of the hereditary estate of the
children and descendants. The latter may unrestrictedly dispose of the other half, with the exception of what
is established in article 836. (Civil Code, art. 809.)

In such case only the half constituting the legal portion would be required by law to be reserved, because it is what by
operation of law could full to the mother from her son's inheritance; the other half at free disposal would not have to
be reserved. This is all that article 811 of the Civil Code says.

No error has been incurred in holding that the two parcels of land which are the subject matter of the application are
required by law to be reserved, because the interested party has not proved that either of them became her
inheritance through the free disposal of her son.

Proof testate succession devolves upon the heir or heiress who alleges it. It must be admitted that a half of Pedro
Sablan's inheritance was acquired by his mother by operation of law. The law provides that the other half is also
presumed to be acquired by operation of law — that is, by intestate succession. Otherwise, proof to offset this
presumption must be presented by the interested party, that is, that the other half was acquired by the man's wish
and not by operation of law.

Nor is the third assignments of error admissible — that the trial court failed to sustain the renunciation of the right
required by law to be reserved, which the applicant attributes to the opponents. Such renunciation does not appear in
the case. The appellant deduces it from the fact that the appellees did not contradict the following statement of hers
at the trial:

The day after my brother-in-law Pablo Sablan dies and was buried, his brother came to my house and said that those
rice lands were mine, because we had already talked about making delivery of them. (p. 91).

The other brother alluded to is Basilio Sablan, as stated on page 92. From the fact that Basilio Sablan said that the
lands belong to the appellant and must be delivered to her it cannot be deduced that he renounced the right required
by law to be reserved in such lands by virtue of the provisions of article 811 of the Civil Code, for they really belong to
her and must be delivered to her.

The fourth assignments of error set up the defense of prescription of the right of action. The appellant alleges
prescription of the opponent's right of action for requiring fulfillment of the obligation they attribute to her recording in
the property registry the right required by law to be reserved, in accordance with the provisions of the Mortgage Law;
and as such obligation is created by law, it prescribed in the time fixed in No. 2 of section 43 of Act No. 190. She
adds: "Prescription of the right alleged to the reserved by force of law has not been invoked." (Eight allegation.)

The appellant does not state in her brief what those provisions of the Mortgage Law are. Nor did she do so in first
instance, where she says only the following, which is quoted from the record: "I do not refer to the prescription of the
right required by law to be reserved in the property; I refer to the prescription of the right of action of those who are
entitled to the guaranty of that right for seeking that guaranty, for those who are entitled to that right the Mortgage
Law grants a period of time for recording it in the property registry, if I remember correctly, ninety days, for seeking
entry in the registry; but as they have not exercised that right of action, such right of action for seeking here that it be
recorded has prescribed. The right of action for requiring that the property be reserved has not prescribed, but the
right of action for guaranteeing in the property registry that this property is required by law to be reserved" (p. 69 of
the record).

The appellees reply: It is true that their right of action has prescribed for requiring the applicant to constitute the
mortgage imposed by the Mortgage Law for guaranteeing the effectiveness of the required by law to be reserved; but
because that right of action has prescribed, that property has not been divested of its character of property required
by law to be reserved; that it has such character by virtue of article 8112 of the Civil Code, which went into effect in
the Philippine in December, 1889, and not by virtue of the Mortgage Law, which only went into effect in the country by
law of July 14, 1893; that from December, 1889, to July, 1893, property which under article 811 of the Civil Code
acquired the character of property reserved by operation of law was such independently of the Mortgage Law, which
did not yet form part of the positive legislation of the country; that although the Mortgage Law has been in effect in the
country since July, 1893, still it has in no way altered the force of article 811 of the Civil Code, but has operated to
reinforce the same merely by granting the right of action to the persons in whose favor the right is reserved by
operation of law to require of the person holding the property a guaranty in the form of a mortgage to answer for the
enforcement, in due time, of the right; that to lose the right of action to the guaranty is not to lose the right itself; that
the right reserved is the principal obligation and the mortgage the accessory obligation, and loss of the accessory
does not mean loss of the principal. (Fifth and sixth allegations.)

The existence of the right required by law to be reserved in the two parcels of land in question being indisputable,
even though it be admitted that the right of action which the Mortgage Law grants as a guaranty of final enforcement
of such right has prescribed, the only thing to be determined by this appeal is the question raised in the first
assignment of error, that is, how said two parcels of land can and ought to be registered, not in the property registry
newly established by the Mortgage Law, but in the registry newly organized by Act No. 496. But as the have slipped
into the allegations quoted some rather inexact ideas that further obscure such an intricate subject as this of the
rights required to be reserved in Spanish-Philippine law, a brief disgression on the most essential points may not be
out of place here.

The Mortgage Law of July 14, 1893, to which the appellees allude, is the amended one of the colonies, not the first
enforced in the colonies and consequently in the Philippines. The preamble of said amended Mortgage Law states:

The Mortgage Law in force in Spain for thirty years went into effect, with the modifications necessary for its
adaptation, in the Antilles on May 1, 1880, and in the Philippines on December 1, 1889, thus commencing in
those regions the renovation of the law on real property, and consequently of agrarian credit.

The Civil Code went into effect in the Philippines in the same year, 1889, but on the eight day.

Two kinds of property required by law to be reserved are distinguished in the Civil Code, as set forth in article 968
thereof, where it says:

Besides the reservation imposed by article 811, the widow or widower contracting a seconds marriage shall be
obliged to set apart for the children and descendants of the first marriage the ownership of all the property he or she
may have required from the deceased spouse by will, by intestate succession, by gift, or other transfer without a
valuable consideration."
The Mortgage Law of Spain and the first law that went into effect in the Philippines on December 1, 189, do not
contain any provision that can be applied to the right reserved by article 811 of the Civil Code, for such right is a
creation of the Civil Code. In those laws appear merely the provisions intended to guarantee the effectiveness of the
right in favor of the children of the first marriage when their father or mother contracts a second marriage.
Nevertheless, the holding of the supreme court of Spain, for the first time set forth in the decision on appeal of
November 8, 1894, has been reiterated:

That while the provisions of articles 977 and 978 of the Civil Code that tend to secure the right required to be
reserved in the property refer especially to the spouses who contract second or later marriages, they do not
thereby cease to be applicable to the right establishes in article 811, because, aside from the legal reason,
which is the same in both cases, such must be the construction from the important and conclusive
circumstance that said provisions are set forth in the chapter that deals with inheritances in common, either
testate or intestate, and because article 968, which heads the section that deals in general with property
required by law to be reserved, makes reference to the provisions in article 811; and it would consequently
be contradictory to the principle of the law and of the common nature of said provisions not to hold them
applicable to that right.

Thus it was again stated in a decision on appeal, December 30, 1897, that: "As the supreme court has already
declared, the guaranties that the Code fixes in article 977 and 978 for the rights required by law to the reserved to
which said articles refer, are applicable to the special right dealt with in article 811, because the same principle exists
and because of the general nature of the provisions of the chapter in which they are found."

From this principle of jurisprudence it is inferred that if from December, 1889, to July, 1893, a case had occurred of a
right required to be reserved by article 811, the persons entitled to such right would have been able to institute,
against the ascendant who must make the reservation, proceedings for the assurance and guaranty that article 977
and 978 grant to the children of a first marriage against their father or mother who has married again. The
proceedings for assurance, under article 977; are: Inventory of the property subject to the right reserved, annotation
in the property registry of such right reserved in the real property and appraisal of the personal property; and the
guaranty, under article 978, is the assurance by mortgage, in the case of realty, of the value of what is validly
alienated.

But since the amended Mortgage Law went into effect by law of July 14, 1893, in the Philippines this is not only a
principle of jurisprudence which may be invoked for the applicability to the right reserved in article 811 of the
remedies of assurance and guaranty provided for the right reserved in article 968, but there is a positive provision of
said law, which is an advantage over the law of Spain, to wit, article 199, which read thus:

The special mortgage for guaranteeing the right reserved by article 811 of the Civil Code can only be
required by the relatives in whose favor the property is to be reserved, if they are of age; if minors, it will be
require by the person who should legally represent them. In either case the right of the persons in whose
favor the property must be reserved will be secured by the same requisites as set forth in the preceding
article (relative to the right reserved by article 968 of the Civil Code), applying to the person obligated to
reserve the right the provisions with respect to the father.

In article 168 of the same law the new subsection 2 is added in connection with article 199 quoted, so that said article
168 reads as thus:

Legal mortgage is established:

1. . . .

2. In favor of the relatives to whom article 811 of the Civil Code refers, for the property required to be
reserved, upon the property of the person obliged to reserve it.

This being admitted, and admitted also that both the litigating parties agree that the period of ninety days fixed for the
right of action to the guaranty, that is, to require the mortgage that guarantees the effectiveness of the right required
by law to be reserved, has prescribed, it is necessary to lay down a principle in this matter. Now it should by noted
that such action has not prescribed, because the period of ninety days fixed by the Mortgage Law is not for the
exercise of the right of action of the persons entitled to the right reserved, but for the fulfillment of the obligation of the
person who must make the reservation.
Article 191 of the reads thus: "If ninety days pass without the father's instituting in court the proceeding to which the
foregoing article refers, the relatives themselves may demand fulfillment, etc., . . . applying, according to said article
199, to the person obligated to reserve the right the provisions with respect to the father."

Article 203 of the regulation for the application of the Mortgage Law says: "In the case of article 199 of the law the
proceedings to which article 190 thereof refers will be instituted within the ninety days succeeding the date of the date
of the acceptation of the inheritance by the person obligated to reserve the property; after this period has elapsed, the
interested parties may require the institution of such proceedings, if they are of age; and in any other case, their legal
representatives."

Thus it clearly appears that the lapse of the ninety days is not the expiration by prescription of the period for the right
must be reserved, but really the commencement thereof, enables them to exercise it at any time, since no limits is set
in the law. So, if the annotation of the right required by law to be reserved in the two parcels of land in question must
be made in the property registry of the Mortgage Law, the persons entitled to it may now institute proceedings to that
end, and an allegation of prescription against the exercise of such right of action cannot be sustained.

Since the applicant confesses that she does not allege prescription of the right of action for requiring that the property
be reserved, for she explicitly so stated at the trial, and as the case presents no necessity for the proceedings that
should be instituted in accordance with the provisions of the Mortgage Law, this prescription of the right of action
cannot take place, because such right of action does not exist with reference to instituting proceedings for annotation
in the registry of Act No. 496 of the right to the property required by law to be reserved. It is sufficient, as was done in
the present case, to intervene in the registration proceedings with the claim set up by the two opponents for recording
therein the right reserved in either parcel of land.

Now comes the main point in the appeal. The trial court denied the registration because of this finding set forth in its
decision:

Absolute title to the two parcels of land undoubtedly belongs to the applicant and the two uncles of the
deceased Pedro Sablan, and the application cannot be made except in the name of all of them in common.
(B. of E., p. 20.)

It must be remembered that absolute title consists of the rights to use, enjoy, dispose of, and recover. The person
who has in himself all these rights has the absolute or complete ownership of the thing; otherwise, the person who
has the right to use and enjoy will have the usufruct, and the person who has the rights of disposal and recovery the
direct title. The person who by law, act, or contract is granted the right of usufruct has the first two rights or using an
enjoying, and then he is said not to have the fee simple — that is, the rights of disposal and recovery, which pertain to
another who, after the usufruct expires, will come into full ownership.

The question set up in the first assignment of error of the appellant's brief is this:

What are the rights in the property of the person who holds it subject to the reservation of article 811 of the
Civil Code?

There are not lacking writers who say, only those of a usufructuary, the ultimate title belonging to the person in whose
favor the reservation is made. If that were so, the person holding the property could not apply for registration of title,
but the person in whose favor it must be reserved, with the former's consent. This opinion does not seem to be
admissible, although it appears to be supported by decisions of the supreme court of Spain of May 21, 1861, and
June 18, 1880, prior to the Civil Code, and of June 22, 1895, somewhat subsequent to the enforcement thereof.

Another writer says: "This opinion only looks at two salient points — the usufruct and the fee simple; the remaining
features of the arrangement are not perceived, but become obscure in the presence of that deceptive emphasis
which only brings out two things: that the person holding the property will enjoy it and that he must keep what he
enjoys for other persons." (Manresa, VII, 189.)

In another place he says: "We do not believe that the third opinion can now be maintained — that is, that the
surviving spouse (the person obliged by article 968 to make the reservation) can be regarded as a mere usufructuary
and the descendants immediately as the owner; such theory has no serious foundation in the Code." (Ibid., 238.)
The ascendants who inherits from a descendants, whether by the latter's wish or by operation of law, requires the
inheritance by virtue of a title perfectly transferring absolute ownership. All the attributes of the right of ownership
belong to him exclusively — use, enjoyment, disposal and recovery. This absolute ownership, which is inherent in the
hereditary title, is not altered in the least, if there be no relatives within the third degree in the line whence the
property proceeds or they die before the ascendant heir who is the possessor and absolute owner of the property. If
there should be relatives within the third degree who belong to the line whence the property proceeded, then a
limitation to that absolute ownership would arise. The nature and scope of this limitation must be determined with
exactness in order not to vitiate rights that the law wishes to be effective. The opinion which makes this limitation
consist in reducing the ascendant heir to the condition in of a mere usufructuary, depriving him of the right of disposal
and recovery, does not seem to have any support in the law, as it does not have, according to the opinion that he has
been expressed in speaking of the rights of the father or mother who has married again. There is a marked difference
between the case where a man's wish institutes two persons as his heirs, one as usufructuary and the other as owner
of his property, and the case of the ascendant in article 811 or of the father or mother in article 968. In the first case,
there is not the slightest doubt that the title to the hereditary property resides in the hereditary owner and he can
dispose of and recover it, while the usufructuary can in no way perform any act of disposal of the hereditary property
(except that he may dispose of the right of usufruct in accordance with the provisions of article 480 of the Civil Code),
or any act of recovery thereof except the limited one in the form prescribed in article 486 of the Code itself, because
he totally lacks the fee simple. But the ascendants who holds the property required by article 811 to be reserved, and
the father of mother required by article 986 to reserve the right, can dispose of the property they might itself, the
former from his descendant and the latter from his of her child in first marriage, and recover it from anyone who may
unjustly detain it, while the persons in whose favor the right is required to be reserved in either case cannot perform
any act whatsoever of disposal or of recovery.

Article 975 states explicitly that the father or mother required by article 9687 to reserve the right may dispose of the
property itself:

Alienation of the property required by law to be reserved which may be made by the surviving
spouse after contracting a second marriage shall be valid only if at his or her death no legitimate children or
descendants of the first marriage survive, without prejudice to the provisions of the Mortgage of Law.

It thus appears that the alienation is valid, although not altogether effective, but under a condition subsequent, to wit:
"If at his or her death no legitimate children or descendants of the first marriage survive."

If the title did not reside in the person holding the property to be reserved, his alienation thereof would necessarily be
null and void, as executed without a right to do so and without a right which he could transmit to the acquirer. The law
says that the alienation subsists (to subject is to continue to exist) "without prejudice to the provisions of the Mortgage
Law." Article 109 of this Law says:

The possessor of property subject to conditions subsequent that are still pending may mortgage or alienate
it, provided always that he preserve the right of the parties interested in said conditions by expressly
reserving that right in the registration.

In such case, the child or legitimate descendants of the first marriage in whose favor the right is reserved cannot
impugn the validity of the alienation so long as the condition subsequent is pending, that is, so long as the remarried
spouse who must reserve the right is alive, because it might easily happen that the person who must reserve the right
should outlive all the person in whose favor the right is reserved and then there would be no reason for the condition
subsequent that they survive him, and, the object of the law having disappeared, the right required to be reserved
would disappear, and the alienation would not only be valid but also in very way absolutely effective. Consequently,
the alienation is valid when the right required by law to be reserved to the children is respected; while the effects of
the alienation depend upon a condition, because it will or will not become definite, it will continue to exist or cease to
exist, according to circumstances. This is what the law establishes with reference to the reservation of article 968,
wherein the legislator expressly directs that the surviving spouse who contracts a second marriage shall reserve to
the children or descendants of the first marriage ownership. Article 811 says nothing more than that the ascendants
must make the reservation.

Manresa, with his recognized ability, summarizes the subject under the heading, "Rights and obligations during the
existence of the right required by law to be reserved," in these words:
During the whole period between the constitution in legal form of the right required by law to be reserved and the
extinction thereof, the relatives within the third degree, after the right that in their turn may pertain to them has
been assured, have only an expectation, and therefore they do not even have the capacity to transmit that
expectation to their heirs.

The ascendant is in the first place a usufructuary who should use and enjoy the things according to their nature, in
the manner and form already set forth in commenting upon the article of the Code referring to use and usufruct.

But since in addition to being the usufructuary he is, even though conditionally, the owner in fee simple of the
property, he can dispose of it in the manner provided in article 974 and 976 of the same Code. Doubt arose also on
this point, but the Direccion General of the registries, in an opinion of June 25, 1892, declared that articles 974 and
975, which are applicable by analogy, for they refer to property reserved by law, reveal in the clearest manner the
attitude of the legislator on this subject, and the relatives with the third degree ought not to be more privileged in the
right reserved in article 811 than the children in the right reserved by article 975, chiefly for the reason that the right
required to be reserved carries with it a condition subsequent, and the property subject to those conditions can validly
be alienated in accordance with article 109 of the Mortgage Law, such alienation to continue, pending fulfillment of
the condition." (Civil Code, VI, 270.)

Another commentator corroborates the foregoing in every way. He says:

The ascendants acquires that property with a condition subsequent, to wit, whether or not there exists at the
time of his death relatives within the third degree of the descendants from whom they inherit in the line
whence the property proceeds. If such relatives exist, they acquire ownership of the property at the death of
the ascendants. If they do not exist, the ascendants can freely dispose thereof. If this is true, since the
possessor of property subject to conditions subsequent can alienate and encumber it, the ascendants may
alienate the property required by law to be reserved, but he will alienate what he has and nothing more
because no one can give what does not belong to him, and the acquirer will therefore receive a limited and
revocable title. The relatives within the third degree will in their turn have an expectation to the property
while the ascendant lives, an expectation that cannot be transmitted to their heirs, unless these are also
within the third degree. After the person who is required by law to reserve the right has died, the relatives
may rescind the alienation of the realty required by law to be reserved and they will complete ownership, in
fee simple, because the condition and the usufruct have been terminated by the death of the usufructuary.
(Morell, Estudios sobre bienes reservable, 304, 305.)

The conclusion is that the person required by article 811 to reserve the right has, beyond any doubt at all, the rights
of use and usufruct. He has, moreover, for the reasons set forth, the legal title and dominion, although under a
condition subsequent. Clearly he has, under an express provision of the law, the right to dispose of the property
reserved, and to dispose of is to alienate, although under a condition. He has the right to recover it, because he is the
one who possesses or should possess it and have title to it, although a limited and revocable one. In a word, the legal
title and dominion, even though under a condition, reside in him while he lives. After the right required by law to be
reserved has been assured, he can do anything that a genuine owner can do.

On the other hand, the relatives within the third degree in whose favor of the right is reserved cannot dispose of the
property, first because it is no way, either actually, constructively or formally, in their possession; and, moreover,
because they have no title of ownership or of the fee simple which they can transmit to another, on the hypothesis
that only when the person who must reserve the right should die before them will they acquire it, thus creating a fee
simple, and only then will they take their place in the succession of the descendants of whom they are relatives within
the third degree, that it to say, a second contingent place in said legitimate succession in the fashion of aspirants to a
possible future legacy. If any of the persons in whose favor the right is reserved should, after their rights has been
assured in the registry, dare to dispose of even nothing more than the fee simple of the property to be reserved his
act would be null and void, for, as was definitely decided in the decision on appeal of December 30, 1897, it is
impossible to determine the part "that might pertain therein to the relative at the time he exercised the right, because
in view of the nature and scope of the right required by law to be reserved the extent of his right cannot be foreseen,
for it may disappear by his dying before the person required to reserve it, just as may even become absolute should
that person die."

Careful consideration of the matter forces the conclusion that no act of disposal inter vivos of the person required by
law to reserve the right can be impugned by him in whose favor it is reserved, because such person has all,
absolutely all, the rights inherent in ownership, except that the legal title is burdened with a condition that the third
party acquirer may ascertain from the registry in order to know that he is acquiring a title subject to a condition
subsequent. In conclusion, it seems to us that only an act of disposal mortis causa in favor of persons other than
relatives within the third degree of the descendants from whom he got the property to be reserved must be prohibited
to him, because this alone has been the object of the law: "To prevent persons outside a family from securing, by
some special accident of life, property that would otherwise have remained therein." (Decision of December 30,
1897.)

Practically, even in the opinion of those who reduce the person reserving the right to the condition of a mere
usufructuary, the person in whose favor it must be reserved cannot attack the alienation that may be absolutely made
of the property the law requires to be reserved, in the present case, that which the appellant has made of the two
parcels of land in question to a third party, because the conditional alienation that is permitted her is equivalent to an
alienation of the usufruct, which is authorized by article 480 of the Civil Code, and, practically, use and enjoyment of
the property required by law to be reserved are all that the person who must reserve it has during his lifetime, and in
alienating the usufruct all the usefulness of the thing would be transmitted in an incontrovertible manner. The
question as to whether or not she transmits the fee simple is purely academic, sine re, for it is not real, actual
positive, as is the case of the institution of two heirs, one a usufructuary and the other the owner, by the express wish
of the predecessor in interest.

If the person whom article 811 requires to reserve the right has all the rights inherent in ownership, he can use, enjoy,
dispose of and recover it; and if, in addition to usufructuary, he is in fact and in law the real owner and can alienate it,
although under a condition, the whole question is reduced to the following terms:

Cannot the heir of the property required by law to reserved, merely because a condition subsequent is annexed to his
right of disposal, himself alone register the ownership of the property he has inherited, when the persons in whose
favor the reservation must be made degree thereto, provided that the right reserved to them in the two parcels of land
be recorded, as the law provides?

It is well known that the vendee under pacto de retracto acquires all the rights of the vendor:

The vendee substitutes the vendor in all his rights and actions. (Civil Code, art. 1511.)

If the vendor can register his title, the vendee can also register this same title after he has once acquired it. This title,
however, in its attribute of being disposable, has a condition subsequent annexed — that the alienation the purchaser
may make will be terminated, if the vendor should exercise the right granted him by article 1507, which says:

Conventional redemption shall take place when the vendor reserves to himself the right to recover the thing sold, with
the obligation to comply with article 1518, and whatever more may have been agreed upon," that is, if he recovers the
thing sold by repaying the vendee the price of the sale and other expenses. Notwithstanding this condition
subsequent, it is a point not at all doubtful now that the vendee may register his title in the same way as the owner of
a thing mortgaged — that is to say, the latter with the consent of his creditor and the former with the consent of the
vendor. He may alienate the thing bought when the acquirer knows by well from the title entered in the registry that
he acquires a title revocable after a fixed period, a thing much more certain and to be expected than the purely
contingent expectation of the person in whose favor is reserved a right to inherit some day what another has
inherited. The purpose of the law would be defeated in not applying to the person who must make the reservation the
provision therein relative to the vendee under pacto de retracto, since the argument in his favor is the more power
and conclusive; ubi eadem ratio, eadem legis dispositivo.

Therefore, we reverse the judgment appealed from, and in lieu thereof decide and declare that the applicant is
entitled to register in her own name the two parcels of land which are the subject matter of the applicants, recording
in the registration the right required by article 811 to be reserved to either or both of the opponents, Pablo Sablan and
Basilio Sablan, should they survive her; without special findings as to costs.

Torres, Mapa, Johnson, Carson and Trent, JJ., concur.

DIONISIA PADURA, ET AL. VERSUS MELANIA BALDOVINO, ET AL.

DIONISIA PADURA, ET AL. VERSUS MELANIA BALDOVINO, ET AL.
104 PHIL 1065
FACTS: Agustin Padura died on April 26, 1908 leaving a last will and testament wherein he
bequeathed his properties among his children, Manuel (child on his first wife), Candelaria and
Fortunato (children on his second wife), and his surviving spouse, Benita Garing. Fortunate was
adjudicated four parcels of land. Fortunato died unmarried without having executed a will; and not
having any issue, the said parcels of land were inherited exclusively by her mother.
On August 26, 1934, Candelaria died leaving as her only heirs, her four legitimate children, Cristeta,
Melania, Anicia and Pablo, all surnamed Baldovino. Years later Manuel Padura also died. Surviving
him are his legitimate children, Dionisia, Felisa, Flora, Gornelio, Francisco, Juana, and Severino, all
surnamed Padura. Upon the death of Benita Garing (the reservista), the question on the distribution
of the said parcels became a dispute between the nephews and nieces of Fortunato by half-blood
(Paduras) and the nephew and nieces by full-blood (Baldovinos).
ISSUE: How should the four parcels of land be divided among the nephews and nieces of
Fortunato?
RULING: Proximity of degree and right of representation are basic principles of ordinary intestate
succession; so is the rule that whole blood brothers and nephews are entitled to a share double that
of brothers and nephews of half-blood.
In other words, the reserva troncal merely determines the group of relatives (reservatarios) to whom
the property should be returned; but within that group, the individual right to the property should
be decided by the applicable rules of ordinary intestate succession, since Art. 891 does not specify
otherwise.
The reservatarios who are nephews of the whole blood are declared entitled to a share twice as large
as that of the nephews of the half-blood.
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G.R. No. L-12957 March 24, 1961

CONSTANCIO SIENES, ET AL., plaintiffs-appellants,

vs.
FIDEL ESPARCIA, ET AL., defendants-appellees.

Proceso R. Remollo for plaintiffs-appellants.

Leonardo D. Mancao for defendants-appellees.

DIZON, J.:

Appellants commenced this action below to secure judgment (1) declaring null and void the sale executed by Paulina
and Cipriana Yaeso in favor of appellees, the spouses Fidel Esparcia and Paulina Sienes; (2) ordering the Esparcia
spouses to reconvey to appellants Lot 3368 of the Cadastral Survey of Ayuquitan (now Amlan), Oriental Negros; and
(3) ordering all the appellees to pay, jointly and severally, to appellants the sum of P500.00 as damages, plus the
costs of suit. In their answer appellees disclaimed any knowledge or information regarding the sale allegedly made on
April 20, 1951 by Andrea Gutang in favor of appellants and alleged that, if such sale was made, the same was void
on the ground that Andrea Gutang had no right to dispose of the property subject matter thereof. They further alleged
that said property had never been in possession of appellants, the truth being that appellees, as owners, had been in
continuous possession thereof since the death of Francisco Yaeso. By way of affirmative defense and counterclaim,
they further alleged that on July 30, 1951, Paulina and Cipriana Yaeso, as the only surviving heirs of Francisco
Yaeso, executed a public instrument of sale in favor of the spouses Fidel Esparcia and Paulina Sienes, the said sale
having been registered together with an affidavit of adjudication executed by Paulina and Cipriana on July 18, 1951,
as sole surviving heirs of the aforesaid deceased; that since then the Esparcias had been in possession of the
property as owners.

After trial upon the issues thus joined, the lower court rendered judgment as follows:

IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered declaring (1) that the sale of Lot No.
3368 made by Andrea Gutang to the plaintiff spouses Constancio Sienes and Genoveva Silay is void, and
the reconveyance prayed for by them is denied; (2) that the sale made by Paulina and Cipriana Yaeso in
favor of defendants Fidel Esparcia and Paulina Sienes involving the same lot is also void, and they have no
valid title thereto; and (3) that the reservable property in question is part of and must be reverted to the
estate of Cipriana Yaeso, the lone surviving relative and heir of Francisco Yaeso at the death of Andrea
Gutang as of December 13, 1951. No pronouncement as to the costs.

From the above decision the Sienes spouse interposed the present appeal, their principal contentions being, firstly,
that the lower court erred in holding that Lot 3368 of the Cadastral Survey of Ayuquitan was a reservable property;
secondly, in annulling the sale of said lot executed by Andrea Gutang in their favor; and lastly, in holding that Cipriana
Yaeso, as reservee, was entitled to inherit said land.

There is no dispute as to the following facts:

Lot 3368 originally belonged to Saturnino Yaeso. With his first wife, Teresa Ruales, he had four children named
Agaton, Fernando, Paulina and Cipriana, while with his second wife, Andrea Gutang, he had an only son named
Francisco. According to the cadastral records of Ayuquitan, the properties left by Saturnino upon his death — the
date of which does not clearly appear of record — were left to his children as follows: Lot 3366 to Cipriana, Lot 3367
to Fernando, Lot 3375 to Agaton, Lot 3377 (southern portion) to Paulina, and Lot 3368 (western portion) to Francisco.
As a result of the cadastral proceedings, Original Certificate of Title No. 10275 covering Lot 3368 was issued in the
name of Francisco. Because Francisco was a minor at the time, his mother administered the property for him,
declared it in her name for taxation purposes (Exhs A & A-1), and paid the taxes due thereon (Exhs. B, C, C-1 & C-2).
When Francisco died on May 29, 1932 at the age of 20, single and without any descendant, his mother, as his sole
heir, executed the public instrument Exhibit F entitled EXTRAJUDICIAL SETTLEMENT AND SALE whereby, among
other things, for and in consideration of the sum of P800.00 she sold the property in question to appellants. When
thereafter said vendees demanded from Paulina Yaeso and her husband Jose Esparcia, the surrender of Original
Certificate of Title No. 10275 — which was in their possession — the latter refused, thus giving rise to the filing of the
corresponding motion in the cadastral record No. 507. The same, however, was denied (Exhs. 8 & 9).

Thereafter, or more specifically, on July 30, 1951, Cipriana and Paulina Yaeso, the surviving half-sisters of Francisco,
and who as such had declared the property in their name, on January 1, 1951 executed a deed of sale in favor of the
spouses Fidel Esparcia and Paulina Sienes (Exh. 2) who, in turn, declared it in their name for tax purposes and
thereafter secured the issuance in their name of Transfer Certificate of Title No. T-2141 (Exhs. 5 & 5-A).

As held by the trial court, it is clear upon the facts already stated, that the land in question was reservable property.
Francisco Yaeso inherited it by operation of law from his father Saturnino, and upon Francisco's death, unmarried
and without descendants, it was inherited, in turn, by his mother, Andrea Gutang. The latter was, therefore, under
obligation to reserve it for the benefit of relatives within the third degree belonging to the line from which said property
came, if any survived her. The record discloses in this connection that Andrea Gutang died on December 13, 1951,
the lone reservee surviving her being Cipriana Yaeso who died only on January 13, 1952 (Exh. 10).

In connection with reservable property, the weight of opinion is that the reserve creates two resolutory conditions,
namely, (1) the death of the ascendant obliged to reserve and (2) the survival, at the time of his death, of relatives
within the third degree belonging to the line from which the property came (6 Manresa 268-269; 6 Sanchez Roman
1934). This Court has held in connection with this matter that the reservista has the legal title and dominion to the
reservable property but subject to a resolutory condition; that he is like a life usufructuary of the reservable property;
that he may alienate the same but subject to reservation, said alienation transmitting only the revocable and
conditional ownership of the reservists, the rights acquired by the transferee being revoked or resolved by the survival
of reservatarios at the time of the death of the reservista (Edroso vs. Sablan, 25 Phil. 295; Lunsod vs. Ortega, 46 Phil.
664; Florentino vs. Florentino, 40 Phil. 480; and Director of Lands vs. Aguas, 65 Phil. 279).
The sale made by Andrea Gutang in favor of appellees was, therefore, subject to the condition that the vendees
would definitely acquire ownership, by virtue of the alienation, only if the vendor died without being survived by any
person entitled to the reservable property. Inasmuch much as when Andrea Gutang died, Cipriana Yaeso was still
alive, the conclusion becomes inescapable that the previous sale made by the former in favor of appellants became
of no legal effect and the reservable property subject matter thereof passed in exclusive ownership to Cipriana.

On the other hand, it is also clear that the sale executed by the sisters Paulina and Cipriana Yaeso in favor of the
spouses Fidel Esparcia and Paulina Sienes was subject to a similar resolutory condition. The reserve instituted by
law in favor of the heirs within the third degree belonging to the line from which the reservable property came,
constitutes a real right which the reservee may alienate and dispose of, albeit conditionally, the condition being that
the alienation shall transfer ownership to the vendee only if and when the reservee survives the person obliged to
reserve. In the present case, Cipriana Yaeso, one of the reservees, was still alive when Andrea Gutang, the person
obliged to reserve, died. Thus the former became the absolute owner of the reservable property upon Andrea's death.
While it may be true that the sale made by her and her sister prior to this event, became effective because of the
occurrence of the resolutory condition, we are not now in a position to reverse the appealed decision, in so far as it
orders the reversion of the property in question to the Estate of Cipriana Yaeso, because the vendees — the
Esparcia spouses did — not appeal therefrom.

WHEREFORE, the appealed decision — as above modified — is affirmed, with costs, and without prejudice to
whatever action in equity the Esparcia spouses may have against the Estate of Cipriana Yaeso for the reconveyance
of the property in question.

Bengzon, Actg. C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera and Paredes,
JJ.,concur.

G.R. No. L-14856 November 15, 1919

ENCARNACION FLORENTINO, ET AL., plaintiffs-appellants,

vs.
MERCEDES FLORENTINO, ET AL., defendants-appellees.

Ramon Querubin, Simeon Ramos and Orense and Vera for appellants.
Vicente Foz, Jose Singsong Tongson and Angel Encarnacion for appellees.

TORRES, J.:

On January 17, 1918, counsel for Encarnacion (together with her husband Simeon Serrano), Gabriel, Magdalena,
Ramon, Miguel, Victorino, and Antonino of the surname Florentino; for Miguel Florentino, guardian ad litem of the
minor Rosario Florentino; for Eugenio Singson, the father and guardian ad litem of Emilia, Jesus, Lourdes, Caridad,
and Dolores of the surname Singson y Florentino; and for Eugenio Singson, guardian of the minors Jose and
Asuncion Florentino, filed a complaint in the Court of First Instance of Ilocos Sur, against Mercedes Florentino and
her husband, alleging as follows:

That Apolonio Isabelo Florentino II married the first time Antonia Faz de Leon; that during the marriage he begot nine
children called, Jose, Juan, Maria, Encarnacion, Isabel, Espirita, Gabriel, Pedro, and Magdalena of the surname
Florentino y de Leon; that on becoming a widower he married the second time Severina Faz de Leon with whom he
had two children, Mercedes and Apolonio III of the surname Florentino y de Leon; that Apolonio Isabelo Florentino II
died on February 13, 1890; that he was survived by his second wife Severina Faz de Leon and the ten children first
above mentioned; that his eleventh son, Apolonio III, was born on the following 4th of March 1890.
That of the deceased Apolonio Isabelo's aforementioned eleven children, Juan, Maria and Isabel died single, without
leaving any ascendants or descendants; that Ramon, Miguel, Victorino, Antonio, and Rosario are the legitimate
children of the deceased Jose Florentino who was one of the children of the deceased Apolonio Isabelo; that Emilia,
Jesus, Lourdes, Caridad, and Dolores are the legitimate children of Espirita Florentino, now deceased, and her
husband Eugenio Singson; that Jose and Asuncion are the children of Pedro Florentino, another son of the deceased
Apolonio Isabelo Florentino.

That on January 17 and February 13, 1890, Apolonio Isabelo Florentino executed a will before the notary public of
Ilocos Sur, instituting as his universal heirs his aforementioned ten children, the posthumos Apolonio III and his
widow Severina Faz de Leon; that he declared, in one of the paragraphs of said will, all his property should be divided
among all of his children of both marriages.

That, in the partition of the said testator's estate, there was given to Apolonio Florentino III, his posthumos son, the
property marked with the letters A, B, C, D, E, and F in the complaint, a gold rosary, pieces of gold, of silver and of
table service, livestock, palay, some personal property and other objects mentioned in the complaint.

That Apolonio Florentino III, the posthumos son of the second marriage, died in 1891; that his mother, Severina Faz
de Leon, succeeded to all his property described in the complaint; that the widow, Severina Faz de Leon died on
November 18, 1908, leaving a will instituting as her universal heiress her only living daughter, Mercedes Florentino;
that, as such heir, said daughter took possession of all the property left at the death of her mother, Severina Faz de
Leon; that among same is included the property, described in the complaint, which the said Severina Faz de Leon
inherited from her deceased son, the posthumos Apolonio, as reservable property; that, as a reservist, the heir of the
said Mercedes Florentino deceased had been gathering for herself alone the fruits of lands described in the
complaint; that each and every one of the parties mentioned in said complaint is entitled to one-seventh of the fruits
of the reservable property described therein, either by direct participation or by representation, in the manner
mentioned in paragraph 9 of the complaint.

That several times the plaintiffs have, in an amicable manner, asked the defendants to deliver their corresponding
part of the reservable property; that without any justifiable motive the defendants have refused and do refuse to
deliver said property or to pay for its value; that for nine years Mercedes Florentino has been receiving, as rent for the
lands mentioned, 360 bundles of palay at fifty pesos per bundle and 90 bundles of corn at four pesos per bundle; that
thereby the plaintiffs have suffered damages in the sum of fifteen thousand four hundred and twenty-eight pesos and
fifty-eight centavos, in addition to three hundred and eight pesos and fifty-eight centavos for the value of the fruits not
gathered, of one thousand pesos (P1,000) for the unjustifiable retention of the aforementioned reservable property
and for the expenses of this suit. Wherefore they pray it be declared that all the foregoing property is reservable
property; that the plaintiffs had and do have a right to the same, in the quantity and proportion mentioned in the
aforementioned paragraph 9 of the complaint; that the defendants Mercedes Florentino and her husband be ordered
to deliver to the plaintiffs their share of the property in question, of the palay and of the corn above mentioned, or their
value; and that they be condemned to pay the plaintiffs the sum of one thousand pesos (P1,000) together with the
costs of this instance.

To the preceding complaint counsel for the defendants demurred, alleging that the cause of action is based on the
obligation of the widow Severina Faz de Leon to reserve the property she inherited from her deceased son Apolonio
Florentino y de Leon who, in turn, inherited same from his father Apolonio Isabelo Florentino; that, there being no
allegation to the contrary, it is to be presumed that the widow Severina Faz de Leon did not remarry after the death of
this husband nor have any natural child; that the right claimed by the plaintiffs is not that mentioned in article 968 and
the following articles, but that established in article 811 of the Civil Code; that the object of the provisions of the
aforementioned articles is to avoid the transfer of said reservable property to those extraneous to the family of the
owner thereof; that if the property inherited by the widow Severina Faz de Leon from her deceased son Apolonio
Florentino y Faz de Leon (property which originated from his father and her husband) has all passed into the hands of
the defendant, Mercedes Florentino y Encarnacion, a daughter of the common ancestor's second marriage (said
Apolonio Isabelo Florentino with the deceased Severina Faz de Leon) it is evident that the property left at the death of
the posthumos son Apolonio Florentino y Faz de Leon did not pass after the death of his mother Severina, his
legitimate heirs as an ascendant, into the hands of strangers; that said property having been inherited by Mercedes
Florentino y Encarnacion from her mother (Severina), article 811 of the Civil Code is absolutely inapplicable to the
present case because, when the defendant Mercedes, by operation law, entered into and succeeded to, the
possession, of the property lawfully inherited from her mother Severina Faz de Leon, said property had, while in the
possession of her mother, lost the character of reservable property — there being a legitimate daughter of Severina
Faz de Leon with the right to succeed her in all her rights, property and actions; that the restraints of the law whereby
said property may not passed into the possession of strangers are void, inasmuch as the said widow had no
obligation to reserve same, as Mercedes Florentino is a forced heiress of her mother Severina Faz de Leon; that, in
the present case, there is no property reserved for the plaintiffs since there is a forced heiress, entitled to the property
left by the death of the widow Severina Faz de Leon who never remarried; that the obligation to reserve is secondary
to the duty of respecting the legitime; that in the instant case, the widow Severina Faz de Leon was in duty bound to
respect the legitime of her daughter Mercedes the defendant; that her obligation to reserve the property could not be
fulfilled to the prejudice of the legitime which belongs to her forced heiress, citing in support of these statements the
decision of the supreme court of Spain of January 4, 1911; that, finally, the application of article 811 of the Civil Code
in favor of the plaintiffs would presuppose the exclusion of the defendant from here right to succeed exclusively to all
the property, rights and actions left by her legitimate mother, although the said defendant has a better right than the
plaintiffs; and that there would be injustice if the property claimed be adjudicated to the plaintiffs, as well as violation
of section 5 of the Jones Law which invalidates any law depriving any person of an equal protection. Wherefore they
prayed that the demurrer be sustained, with costs against the plaintiffs.

After the hearing of the demurrer, on August 22, 1918, the judge absolved the defendants from the complaint and
condemned the plaintiffs to pay the costs.

Counsel for the plaintiffs excepted to this order, moved to vacate it and to grant them a new trial; said motion was
overruled; the plaintiffs expected thereto and filed the corresponding bill of exceptions which was allowed, certified
and forwarded to the clerk of this court.

On appeal the trial judge sustained the demurrer of the defendants to the complaint of the plaintiffs, but, instead of
ordering the latter to amend their complaint within the period prescribed by the rules — undoubtedly believing that the
plaintiffs could not alter nor change the facts constituting the cause of action, and that, as both parties were agreed
as to the facts alleged in the complaint as well as in the demurrer, every question reduced itself to one of the law,
already submitted to the decision of the court — the said judge, disregarding the ordinary procedure established by
law, decided the case by absolving the defendants from the complaint and by condemning the plaintiffs to pay the
costs of the instance.

There certainly was no real trial, inasmuch as the defendants, instead of answering the complaint of the plaintiffs,
confined themselves to filing a demurrer based on the ground that the facts alleged in the complaint do not constitute
a cause of action. However, the judge preferred to absolve the defendants, thereby making an end to the cause,
instead of dismissing the same, because undoubtedly he believed, in view of the controversy between the parties,
that the arguments adduced to support the demurrer would be the same which the defendants would allege in their
answer — those dealing with a mere question of law which the courts would have to decide — and that, the demurrer
having been sustained, if the plaintiffs should insist — they could do no less — upon alleging the same facts as those
set out in their complaint and if another demurrer were afterwards set up, he would be obliged to dismiss said
complaint with costs against the plaintiffs — in spite of being undoubtedly convinced in the instant case that the
plaintiffs absolutely lack the right to bring the action stated in their complaint.

Being of the opinion that the emendation of the indicated defects is not necessary — as in this case what has been
done does not prejudice the parties — the appellate court will now proceed to decide the suit according to its merits,
as found in the record and to the legal provisions applicable to the question of law in controversy so that unnecessary
delay and greater expense may be avoided, inasmuch as, even if all the ordinary proceedings be followed, the suit
would be subsequently decided in the manner and terms that it is now decided in the opinion thoughtfully and
conscientiously formed for its determination.

In order to decide whether the plaintiffs are or are not entitled to invoke, in their favor, the provisions of article 811 of
the Civil Code, and whether the same article is applicable to the question of law presented in this suit, it is necessary
to determine whether the property enumerated in paragraph 5 of the complaint is of the nature of reservable property;
and if so, whether in accordance with the provision of the Civil Code in article 811, Severina Faz de Leon (the widow
of the deceased Apolonio Isabelo Florentino) who inherited said property from her son Apolonio Florentino III (born
after the death of his father Apolonio Isabelo) had the obligation to preserve and reserve same for the relatives, within
the third degree, of her aforementioned deceased son Apolonio III.

The above mentioned article reads:

Any ascendant who inherits from his descendant any property acquired by the latter gratuitously from some
other ascendant, or from a brother or sister, is obliged to reserve such of the property as he may have
 acquired by operation of law for the benefit of relatives within the third degree belonging to the line from
which such property came.

During the marriage of Apolonio Isabelo Florentino II and Severina Faz de Leon two children were born, namely the
defendant Mercedes Florentino and Apolonio Florentino III (born after the death of his father). At the death of
Apolonio Isabelo Florentino under a will, his eleven children succeeded to the inheritance he left, one of whom, the
posthumos son Apolonio III, was given, as his share, the aforementioned property enumerated in the complaint. In
1891 the said posthumos son Apolonio Florentino III died and was succeeded by his legitimate mother Severina Faz
de Leon, who inherited the property he left and who on dying, November 18, 1908, instituted by will as her sole
heiress her surviving daughter, Mercedes Florentino, the defendant herein, who took possession of all property left by
her father, same constituting the inheritance. Included in said inheritance is the property, specified in by the
posthumos son Apolonio Florentino III from his father Apolonio Isabelo Florentino, and which, at the death of the said
posthumos son, had in turn been inherited by his mother, Severina Faz de Leon. Even if Severina left in her will said
property, together with her own, to her only daughter and forced heiress, Mercedes Florentino, nevertheless this
property had not lost its reservable nature inasmuch as it originated from the common ancestor of the litigants,
Apolonio Isabelo; was inherited by his son Apolonio III; was transmitted by same (by operation of law) to his
legitimate mother and ascendant, Severina Faz de Leon.

The posthumos son, Apolonio Florentino III, acquired the property, now claimed by his brothers, by a lucrative title or
by inheritance from his aforementioned legitimate father, Apolonio Isabelo Florentino II. Although said property was
inherited by his mother, Severina Faz de Leon, nevertheless, she was in duty bound, according to article 811 of the
Civil Code, to reserve the property thus acquired for the benefit of the relatives, within the third degree, of the line
from which such property came.

According to the provisions of law, ascendants do not inherit the reservable property, but its enjoyment, use or trust,
merely for the reason that said law imposes the obligation to reserve and preserve same for certain designated
persons who, on the death of the said ascendants reservists, (taking into consideration the nature of the line from
which such property came) acquire the ownership of said property in fact and by operation of law in the same manner
as forced heirs (because they are also such) — said property reverts to said line as long as the aforementioned
persons who, from the death of the ascendant-reservists, acquire in fact the right of reservatarios (person for whom
property is reserved), and are relatives, within the third degree, of the descendant from whom the reservable property
came.

Any ascendant who inherits from his descendant any property, while there are living, within the third degree, relatives
of the latter, is nothing but a life usufructuary or a fiduciary of the reservable property received. He is, however, the
legitimate owner of his own property which is not reservable property and which constitutes his legitime, according to
article 809 of the Civil Code. But if, afterwards, all of the relatives, within the third degree, of the descendant (from
whom came the reservable property) die or disappear, the said property becomes free property, by operation of law,
and is thereby converted into the legitime of the ascendant heir who can transmit it at his death to his legitimate
successors or testamentary heirs. This property has now lost its nature of reservable property, pertaining thereto at
the death of the relatives, called reservatarios, who belonged within the third degree to the line from which such
property came. lawphil.net

Following the order prescribed by law in legitimate succession, when there are relatives of the descendant within the
third degree, the right of the nearest relative, called reservatario, over the property which the reservista (person
holding it subject to reservation) should return to him, excludes that of the one more remote. The right of
representation cannot be alleged when the one claiming same as a reservatario of the reservable property is not
among the relatives within the third degree belonging to the line from which such property came, inasmuch as the
right granted by the Civil Code in article 811 is in the highest degree personal and for the exclusive benefit of
designated persons who are the relatives, within the third degree, of the person from whom the reservable property
came. Therefore, relatives of the fourth and the succeeding degrees can never be considered as reservatarios, since
the law does not recognize them as such.

In spite of what has been said relative to the right of representation on the part of one alleging his right
as reservatario who is not within the third degree of relationship, nevertheless there is right of representation on the
part of reservatarios who are within the third degree mentioned by law, as in the case of nephews of the deceased
person from whom the reservable property came. These reservatarios have the right to represent their ascendants
(fathers and mothers) who are the brothers of the said deceased person and relatives within the third degree in
accordance with article 811 of the Civil Code.
In this case it is conceded without denial by defendants, that the plaintiffs Encarnacion, Gabriel and Magdalena are
the legitimate children of the first marriage of the deceased Apolonio Isabelo Florentino II; that Ramon, Miguel,
Ceferino, Antonio, and Rosario are both grandchildren of Apolonio Isabelo Florentino II, and children of his deceased
son, Jose Florentino; that the same have the right to represent their aforementioned father, Jose Florentino; that
Emilia, Jesus, Lourdes, Caridad, and Dolores are the legitimate children of the deceased Espirita Florentino, one of
the daughters of the deceased Apolonio Isabelo Florentino II, and represent the right of their aforementioned mother;
and that the other plaintiffs, Jose and Asuncion, have also the right to represent their legitimate father Pedro
Florentino one of the sons of the aforementioned Apolonio Isabelo Florentino II. It is a fact, admitted by both parties,
that the other children of the first marriage of the deceased Apolonio Isabelo Florentino II died without issue so that
this decision does not deal with them.

There are then seven "reservatarios" who are entitled to the reservable property left at the death of Apolonio III; the
posthumos son of the aforementioned Apolonio Isabelo II, to wit, his three children of his first marriage —
Encarnacion, Gabriel, Magdalena; his three children, Jose, Espirita and Pedro who are represented by their own
twelve children respectively; and Mercedes Florentino, his daughter by a second marriage. All of the plaintiffs are the
relatives of the deceased posthumos son, Apolonio Florentino III, within the third degree (four of whom being his half-
brothers and the remaining twelve being his nephews as they are the children of his three half-brothers). As the first
four are his relatives within the third degree in their own right and the other twelve are such by representation, all of
them are indisputably entitled as reservatarios to the property which came from the common ancestor, Apolonio
Isabelo, to Apolonio Florentino III by inheritance during his life-time, and in turn by inheritance to his legitimate
mother, Severina Faz de Leon, widow of the aforementioned Apolonio Isabelo Florentino II.

In spite of the provisions of article 811 of the Civil Code already cited, the trial judge refused to accept the theory of
the plaintiffs and, accepting that of the defendants, absolved the latter from the complaint on the ground that said
article is absolutely inapplicable to the instant case, inasmuch as the defendant Mercedes Florentino survived her
brother, Apolonio III, from whom the reservable property came and her mother, Severina Faz de Leon, the widow of
her father, Apolonio Isabelo Florentino II; that the defendant Mercedes, being the only daughter of Severina Faz de
Leon, is likewise her forced heiress; that when she inherited the property left at the death of her mother, together with
that which came from her deceased brother Apolonio III, the fundamental object of article 811 of the Code was
thereby complied with, inasmuch as the danger that the property coming from the same line might fall into the hands
of strangers had been avoided; and that the hope or expectation on the part of the plaintiffs of the right to acquire the
property of the deceased Apolonio III never did come into existence because there is a forced heiress who is entitled
to such property.

The judgment appealed from is also founded on the theory that article 811 of the Civil Code does not destroy the
system of legitimate succession and that the pretension of the plaintiffs to apply said article in the instant case would
be permitting the reservable right to reduce and impair the forced legitimate which exclusively belongs to the
defendant Mercedes Florentino, in violation of the precept of article 813 of the same Code which provides that the
testator cannot deprive his heirs of their legitime, except in the cases expressly determined by law. Neither can he
impose upon it any burden, condition, or substitution of any kind whatsoever, saving the provisions concerning the
usufruct of the surviving spouse, citing the decision of the Supreme Court of Spain of January 4, 1911.

The principal question submitted to the court for decision consists mainly in determining whether they property left at
the death of Apolonio III, the posthumos son of Apolonio Isabelo II, was or was not invested with the character of
reservable property when it was received by his mother, Severina Faz de Leon.

The property enumerated by the plaintiffs in paragraph 5 of their complaint came, without any doubt whatsoever, from
the common ancestor Apolonio Isabelo II, and when, on the death of Apolonio III without issue the same passed by
operation of law into the hands of his legitimate mother, Severina Faz de Leon, it became reservable property, in
accordance with the provision of article 811 of the Code, with the object that the same should not fall into the
possession of persons other than those comprehended within the order of person other than those comprehended
within the order of succession traced by the law from Apolonio Isabelo II, the source of said property. If this property
was in fact clothed with the character and condition of reservable property when Severina Faz de Leon inherited
same from her son Apolonio III, she did not thereby acquire the dominion or right of ownership but only the right of
usufruct or of fiduciary with the necessary obligation to preserve and to deliver or return it as such reservable property
to her deceased son's relatives within the third degree, among whom is her daughter, Mercedes Florentino.

Reservable property neither comes, nor falls under, the absolute dominion of the ascendant who inherits and
receives same from his descendant, therefore it does not form part of his own property nor become the legitimate of
his forced heirs. It becomes his own property only in case that all the relatives of his descendant shall have died
(reservista) in which case said reservable property losses such character.

With full right Severina Faz de Leon could have disposed in her will of all her own property in favor of her only living
daughter, Mercedes Florentino, as forced heiress. But whatever provision there is in her will concerning the
reservable property received from her son Apolonio III, or rather, whatever provision will reduce the rights of the
other reservatarios, the half brothers and nephews of her daughter Mercedes, is unlawful, null and void, inasmuch as
said property is not her own and she has only the right of usufruct or of fiduciary, with the obligation to preserve and
to deliver same to the reservatarios, one of whom is her own daughter, Mercedes Florentino.

It cannot reasonably be affirmed, founded upon an express provision of law, that by operation of law all of the
reservable property, received during lifetime by Severina Faz de Leon from her son, Apolonio III, constitutes or forms
parts of the legitime pertaining to Mercedes Florentino. If said property did not come to be the legitimate and
exclusive property of Severina Faz de Leon, her only legitimate and forced heiress, the defendant Mercedes, could
not inherit all by operation of law and in accordance with the order of legitimate succession, because the other
relatives of the deceased Apolonio III, within the third degree, as well as herself are entitled to such reservable
property.

For this reason, in no manner can it be claimed that the legitime of Mercedes Florentino, coming from the inheritance
of her mother Severina Faz de Leon, has been reduced and impaired; and the application of article 811 of the Code
to the instant case in no way prejudices the rights of the defendant Mercedes Florentino, inasmuch as she is entitled
to a part only of the reservable property, there being no lawful or just reason which serves as real foundation to
disregard the right to Apolonio III's other relatives, within the third degree, to participate in the reservable property in
question. As these relatives are at present living, claiming for it with an indisputable right, we cannot find any
reasonable and lawful motive why their rights should not be upheld and why they should not be granted equal
participation with the defendant in the litigated property.

The claim that because of Severina Faz de Leon's forced heiress, her daughter Mercedes, the property received from
the deceased son Apolonio III lost the character, previously held, of reservable property; and that the mother, the said
Severina, therefore, had no further obligation to reserve same for the relatives within the third degree of the deceased
Apolonio III, is evidently erroneous for the reason that, as has been already stated, the reservable property, left in a
will by the aforementioned Severina to her only daughter Mercedes, does not form part of the inheritance left by her
death nor of the legitimate of the heiress Mercedes. Just because she has a forced heiress, with a right to her
inheritance, does not relieve Severina of her obligation to reserve the property which she received from her deceased
son, nor did same lose the character of reservable property, held before the reservatariosreceived same.

It is true that when Mercedes Florentino, the heiress of the reservista Severina, took possession of the property in
question, same did not pass into the hands of strangers. But it is likewise true that the said Mercedes is not the
only reservataria. And there is no reason founded upon law and upon the principle of justice why the
other reservatarios, the other brothers and nephews, relatives within the third degree in accordance with the precept
of article 811 of the Civil Code, should be deprived of portions of the property which, as reservable property, pertain
to them.

From the foregoing it has been shown that the doctrine announced by the Supreme Court of Spain on January 4,
1911, for the violation of articles 811, 968 and consequently of the Civil Code is not applicable in the instant case.

Following the provisions of article 813, the Supreme Court of Spain held that the legitime of the forced heirs cannot
be reduced or impaired and said article is expressly respected in this decision.

However, in spite of the efforts of the appellee to defend their supposed rights, it has not been shown, upon any legal
foundation, that the reservable property belonged to, and was under the absolute dominion of, the reservista, there
being relatives within the third degree of the person from whom same came; that said property, upon passing into the
hands of the forced heiress of the deceased reservista, formed part of the legitime of the former; and that the said
forced heiress, in addition to being a reservataria, had an exclusive right to receive all of said property and to deprive
the other reservatarios, her relatives within the third degree of certain portions thereof.

Concerning the prayer in the complaint relative to the indemnity for damages and the delivery of the fruits collected, it
is not proper to grant the first for there is no evidence of any damage which can give rise to the obligation of refunding
same. As to the second, the delivery of the fruits produced by the land forming the principal part of the reservable
property, the defendants are undoubtedly in duty bound to deliver to the plaintiffs six-sevenths of the fruits or rents of
the portions of land claimed in the complaint, in the quantity expressed in paragraph 11 of the same, from January
17, 1918, the date the complaint was filed; and the remaining seventh part should go to the defendant Mercedes.

For the foregoing reasons it follows that with the reversal of the order of decision appealed from we should declare,
as we hereby do, that the aforementioned property, inherited by the deceased Severina Faz de Leon from her son
Apolonio Florentino III, is reservable property; that the plaintiffs, being relatives of the deceased Apolonio III within the
third degree, are entitled to six-sevenths of said reservable property; that the defendant Mercedes is entitled to the
remaining seventh part thereof; that the latter, together with her husband Angel Encarnacion, shall deliver to the
plaintiffs, jointly, six-sevenths of the fruits or rents, claimed from said portion of the land and of the quantity claimed,
from January 17, 1918, until fully delivered; and that the indemnity for one thousand pesos (P1,000) prayed for in the
complaint is denied, without special findings as to the costs of both instances. So ordered.

Arellano, C.J., Johnson, Araullo, Street, Malcolm and Avanceña, JJ., concur.

G.R. No. 192828 November 28, 2011

RAMON S. CHING AND PO WING PROPERTIES, INC., Petitioners,

vs.
HON. JANSEN R. RODRIGUEZ, in his capacity as Presiding Judge of the Regional Trial Court of Manila,
Branch 6, JOSEPH CHENG, JAIME CHENG, MERCEDES IGNE AND LUCINA SANTOS, substituted by her son,
EDUARDO S. BALAJADIA, Respondents.

RESOLUTION

REYES, J.:

The Case

Before us is a Petition for Review on Certiorari1 under Rule 45 of the Rules of Court assailing the December 14, 2009
Decision2 and July 8, 2010 Resolution3 of the Court of Appeals (CA) in CA-G.R. SP No. 99856. The dispositive
portion of the assailed Decision reads:

WHEREFORE, in view of all the foregoing premises, judgment is hereby rendered by us DENYING the petition filed
in this case and AFFIRMING the assailed Orders dated March 15, 2007 and May 16, 2007 issued by the respondent
Judge of the Regional Trial Court (RTC), Branch 6, in Manila in Civil Case No. 02-105251.4

The assailed Resolution denied the petitioners' Motion for Reconsideration.

The Factual Antecedents

Sometime between November 25, 2002 and December 3, 2002, 5 the respondents filed a Complaint6 against the
petitioners and Stronghold Insurance Company, Global Business Bank, Inc. (formerly PhilBank), Elena Tiu Del Pilar,
Asia Atlantic Resources Ventures, Inc., Registers of Deeds of Manila and Malabon, and all persons claiming rights or
titles from Ramon Ching (Ramon) and his successors-in-interest.

The Complaint, captioned as one for "Disinheritance, Declaration of Nullity of Agreement and Waiver, Affidavit of
Extra-Judicial Settlement, Deed of Absolute Sale, Transfer Certificates of Title with Prayer for [the] Issuance of [a]
Temporary Restraining Order and [a] Writ of Preliminary Injunction," was docketed as Civil Case No. 02-105251 and
raffled to Branch 8 of the Regional Trial Court of Manila (RTC).

In the Complaint, the respondents alleged the following as causes of action:

 First Cause of Action. They are the heirs of Lim San, also known as Antonio Ching / Tiong Cheng / Ching
Cheng Suy (Antonio). Respondents Joseph Cheng (Joseph) and Jaime Cheng (Jaime) are allegedly the
children of Antonio with his common-law wife, respondent Mercedes Igne (Mercedes). Respondent Lucina
Santos (Lucina) claimed that she was also a common-law wife of Antonio. The respondents averred that
Ramon misrepresented himself as Antonio's and Lucina's son when in truth and in fact, he was adopted and
his birth certificate was merely simulated. On July 18, 1996, Antonio died of a stab wound. Police
investigators identified Ramon as the prime suspect and he now stands as the lone accused in a criminal
case for murder filed against him. Warrants of arrest issued against him have remained unserved as he is at
large. From the foregoing circumstances and upon the authority of Article 919 7 of the New Civil Code (NCC),
the respondents concluded that Ramon can be legally disinherited, hence, prohibited from receiving any
share from the estate of Antonio.

Second Cause of Action. On August 26, 1996, prior to the conclusion of the police investigations tagging
Ramon as the prime suspect in the murder of Antonio, the former made an inventory of the latter's estate.
Ramon misrepresented that there were only six real estate properties left by Antonio. The respondents
alleged that Ramon had illegally transferred to his name the titles to the said properties. Further, there are
two other parcels of land, cash and jewelries, plus properties in Hongkong, which were in Ramon's
possession.

Third Cause of Action. Mercedes, being of low educational attainment, was sweet-talked by Ramon into
surrendering to him a Global Business Bank, Inc. (Global Bank) Certificate of Time Deposit of
₱4,000,000.00 in the name of Antonio, and the certificates of title covering two condominium units in
Binondo which were purchased by Antonio using his own money but which were registered in Ramon's
name. Ramon also fraudulently misrepresented to Joseph, Jaime and Mercedes that they will promptly
receive their complete shares, exclusive of the stocks in Po Wing Properties, Inc. (Po Wing), from the estate
of Antonio. Exerting undue influence, Ramon had convinced them to execute an Agreement 8 and a
Waiver9 on August 20, 1996. The terms and conditions stipulated in the Agreement and Waiver, specifically,
on the payment by Ramon to Joseph, Jaime and Mercedes of the amount of ₱22,000,000.00, were not
complied with. Further, Lucina was not informed of the execution of the said instruments and had not
received any amount from Ramon. Hence, the instruments are null and void.

Fourth Cause of Action. Antonio's 40,000 shares in Po Wing, which constitute 60% of the latter's total
capital stock, were illegally transferred by Ramon to his own name through a forged document of sale
executed after Antonio died. Po Wing owns a ten-storey building in Binondo. Ramon's claim that he bought
the stocks from Antonio before the latter died is baseless. Further, Lucina's shares in Po Wing had also
banished into thin air through Ramon's machinations.

Fifth Cause of Action. On October 29, 1996, Ramon executed an Affidavit of Extra-Judicial Settlement of
Estate10 adjudicating solely to himself Antonio's entire estate to the prejudice of the respondents. By virtue of
the said instrument, new Transfer Certificates of Title (TCTs) covering eight real properties owned by
Antonio were issued in Ramon's name. Relative to the Po Wing shares, the Register of Deeds of Manila had
required Ramon to post a Surety Bond conditioned to answer for whatever claims which may eventually
surface in connection with the said stocks. Co-defendant Stronghold Insurance Company issued the bond in
Ramon's behalf.

Sixth Cause of Action. Ramon sold Antonio's two parcels of land in Navotas to co-defendant Asia Atlantic
Business Ventures, Inc. Another parcel of land, which was part of Antonio's estate, was sold by Ramon to
co-defendant Elena Tiu Del Pilar at an unreasonably low price. By reason of Ramon's lack of authority to
dispose of any part of Antonio's estate, the conveyances are null and void ab initio.

Since Ramon is at large, his wife, Belen Dy Tan Ching, now manages Antonio's estate. She has no intent to convey
to the respondents their shares in the estate of Antonio.

The respondents thus prayed for the following in their Complaint:

1. x x x a temporary restraining order be issued restraining the defendant RAMON CHING and/or his attorney-in-fact
Belen Dy Tan Ching from disposing, selling or alienating any property that belongs to the estate of the deceased
ANTONIO CHING;
xxx

4. x x x

a.) Declaring that the defendant RAMON CHING who murdered his father ANTONIO CHING disqualified as
heir and from inheriting to (sic) the estate of his father;

b.) Declaring the nullity of the defendant RAMON CHING transfer (sic) of the six [6] parcels of land from the
name of his father ANTONIO CHING to his name covered by TCT No. x x x;

c.) Declaring the nullity of the AGREEMENT and WAIVER executed by plaintiffs x x x in favor of x x x
RAMON CHING for being patently immoral, invalid, illegal, simulated and (sic) sham;

d.) Declaring the nullity of the transfer of the shares of stocks at (sic) PO WING from the names of
ANTONIO CHING and LUCINA SANTOS to the defendant ANTONIO CHING's name for having been
illegally procured through the falsification of their signatures in the document purporting the transfer thereof;

e.) Declaring the nullity and to have no force and effect the AFFIDAVIT OF SETTLEMENT OF ESTATE
executed by x x x RAMON CHING for being contrary to law and existing jurisprudence;

f.) Declaring the nullity of the DEED OF SALES (sic) executed by x x x RAMON CHING (i) over two (2)
parcels of land x x x to defendant ASIA ATLANTIC BUSINESS VENTURES, Inc.; and (ii) one (1) parcel of
land x x x sold to x x x ELENA TIU DEL PILAR for having illegally procured the ownership and titles of the
above properties;

x x x.11

The petitioners filed with the RTC a Motion to Dismiss 12 alleging forum shopping, litis pendentia, res judicata and the
respondents as not being the real parties in interest.

On July 30, 2004, the RTC issued an Omnibus Order13 denying the petitioners' Motion to Dismiss.

The respondents filed an Amended Complaint14 dated April 7, 2005 impleading Metrobank as the successor-in-
interest of co-defendant Global Bank. The Amended Complaint also added a seventh cause of action relative to the
existence of a Certificate of Premium Plus Acquisition (CPPA) in the amount of ₱4,000,000.00 originally issued by
PhilBank to Antonio. The respondents prayed that they be declared as the rightful owners of the CPPA and that it be
immediately released to them. Alternatively, the respondents prayed for the issuance of a hold order relative to the
CPPA to preserve it during the pendency of the case.

On April 22, 2005, the petitioners filed their Consolidated Answer with Counterclaim.15

On October 28, 2005, the RTC issued an Order16 admitting the respondents' Amended Complaint. The RTC stressed
that Metrobank had already filed Manifestations admitting that as successor-in-interest of Global Bank, it now
possesses custody of Antonio's deposits. Metrobank expressed willingness to abide by any court order as regards
the disposition of Antonio's deposits. The petitioners' Motion for Reconsideration filed to assail the aforecited Order
was denied by the RTC on May 3, 2006.

On May 29, 2006, the petitioners filed their Consolidated Answer with Counterclaim to the respondents' Amended
Complaint.

On August 11, 2006, the RTC issued a pre-trial order.17

On January 18, 2007, the petitioners filed a Motion to Dismiss18 the respondents' Amended Complaint on the alleged
ground of the RTC's lack of jurisdiction over the subject matter of the Complaint. The petitioners argued that since the
Amended Complaint sought the release of the CPPA to the respondents, the latter's declaration as heirs of Antonio,
and the propriety of Ramon's disinheritance, the suit partakes of the nature of a special proceeding and not an
ordinary action for declaration of nullity. Hence, jurisdiction pertains to a probate or intestate court and not to the RTC
acting as an ordinary court.

On March 15, 2007, the RTC issued an Order19 denying the petitioners' Motion to Dismiss on grounds:

In the case at bar, an examination of the Complaint would disclose that the action delves mainly on the question of
ownership of the properties described in the Complaint which can be properly settled in an ordinary civil action. And
as pointed out by the defendants, the action seeks to declare the nullity of the Agreement, Waiver, Affidavit of Extra-
Judicial Settlement, Deed of Absolute Sale, Transfer Certificates of Title, which were all allegedly executed by
defendant Ramon Ching to defraud the plaintiffs. The relief of establishing the status of the plaintiffs which
could have translated this action into a special proceeding was nowhere stated in the Amended Complaint.
With regard [to] the prayer to declare the plaintiffs as the rightful owner[s] of the CPPA and that the same be
immediately released to them, in itself poses an issue of ownership which must be proved by plaintiffs by
substantial evidence. And as emphasized by the plaintiffs, the Amended Complaint was intended to implead
Metrobank as a co-defendant.

As regards the issue of disinheritance, the court notes that during the Pre-trial of this case, one of the issues raised
by the defendants Ramon Ching and Po Wing Properties is: Whether or not there can be disinheritance in intestate
succession? Whether or not defendant Ramon Ching can be legally disinherited from the estate of his father? To the
mind of the Court, the issue of disinheritance, which is one of the causes of action in the Complaint, can be fully
settled after a trial on the merits. And at this stage, it has not been sufficiently established whether or not there is a
will.20 (Emphasis supplied.)

The above Order, and a subsequent Order dated May 16, 2007 denying the petitioners' Motion for Reconsideration,
became the subjects of a petition for certiorari filed with the CA. The petition, docketed as CA-G.R. SP No. 99856,
raised the issue of whether or not the RTC gravely abused its discretion when it denied the petitioners' Motion to
Dismiss despite the fact that the Amended Complaint sought to establish the status or rights of the respondents
which subjects are within the ambit of a special proceeding.

On December 14, 2009, the CA rendered the now assailed Decision 21 denying the petition for certiorari on grounds:

Our in-depth assessment of the condensed allegations supporting the causes of action of the amended complaint
induced us to infer that nothing in the said complaint shows that the action of the private respondents should
be threshed out in a special proceeding, it appearing that their allegations were substantially for the
enforcement of their rights against the alleged fraudulent acts committed by the petitioner Ramon Ching. The
private respondents also instituted the said amended complaint in order to protect them from the
consequence of the fraudulent acts of Ramon Ching by seeking to disqualify Ramon Ching from inheriting
from Antonio Ching as well as to enjoin him from disposing or alienating the subject properties, including
the ₱4 Million deposit with Metrobank. The intestate or probate court has no jurisdiction to adjudicate such issues,
which must be submitted to the court in the exercise of its general jurisdiction as a regional trial court. Furthermore,
we agree with the trial court that the probate court could not take cognizance of the prayer to disinherit Ramon Ching,
given the undisputed fact that there was no will to be contested in a probate court.

The petition at bench apparently cavils the subject amended complaint and complicates the issue of jurisdiction by
reiterating the grounds or defenses set up in the petitioners' earlier pleadings. Notwithstanding, the jurisdiction of the
court over the subject matter is determined by the allegations of the complaint without regard to whether or not the
private respondents (plaintiffs) are entitled to recover upon all or some of the causes of action asserted therein. In this
regard, the jurisdiction of the court does not depend upon the defenses pleaded in the answer or in the motion to
dismiss, lest the question of jurisdiction would almost entirely depend upon the petitioners (defendants). 22 Hence, we
focus our resolution on the issue of jurisdiction on the allegations in the amended complaint and not on the defenses
pleaded in the motion to dismiss or in the subsequent pleadings of the petitioners.

In fine, under the circumstances of the present case, there being no compelling reason to still subject the action
of the petitioners in a special proceeding since the nullification of the subject documents could be achieved
in the civil case, the lower court should proceed to evaluate the evidence of the parties and render a decision
thereon upon the issues that it defined during the pre-trial in Civil Case No. 02-105251.23 (emphasis supplied)

The petitioners' Motion for Reconsideration was denied by the CA through a Resolution24 issued on July 8, 2010.
 The Issue

The instant Petition for Review on Certiorari25 is anchored on the issue of:

Whether or not the RTC should have granted the Motion to Dismiss filed by the PETITIONERS on the alleged ground
of the RTC's lack of jurisdiction over the subject matter of the Amended Complaint, to wit, (a) filiations with Antonio of
Ramon, Jaime and Joseph; (b) rights of common-law wives, Lucina and Mercedes, to be considered as heirs of
Antonio; (c) determination of the extent of Antonio's estate; and (d) other matters which can only be resolved in a
special proceeding and not in an ordinary civil action.

The petitioners argue that only a probate court has the authority to determine (a) who are the heirs of a decedent; (b)
the validity of a waiver of hereditary rights; (c) the status of each heir; and (d) whether the property in the inventory is
conjugal or the exclusive property of the deceased spouse.26 Further, the extent of Antonio's estate, the status of the
contending parties and the respondents' alleged entitlement as heirs to receive the proceeds of Antonio's CPPA now
in Metrobank's custody are matters which are more appropriately the subjects of a special proceeding and not of an
ordinary civil action.

The respondents opposed27 the instant petition claiming that the petitioners are engaged in forum shopping.
Specifically, G.R. Nos. 17550728 and 183840,29 both involving the contending parties in the instant petition were filed
by the petitioners and are currently pending before this Court. Further, in Mendoza v. Hon. Teh,30 the SC declared
that whether a particular matter should be resolved by the RTC in the exercise of its general jurisdiction or its limited
probate jurisdiction, is not a jurisdictional issue but a mere question of procedure. Besides, the petitioners, having
validly submitted themselves to the jurisdiction of the RTC and having actively participated in the trial of the case, are
already estopped from challenging the RTC's jurisdiction over the respondents' Complaint and Amended Complaint. 31

The Court's Ruling

We resolve to deny the instant petition.

The petitioners failed to comply with a lawful order of this Court directing them to file their reply to the respondents'
Comment/Opposition to the instant Petition. While the prescribed period to comply expired on March 15, 2011, the
petitioners filed their Manifestation that they will no longer file a reply only on October 10, 2011 or after the lapse of
almost seven months.

Further, no reversible errors were committed by the RTC and the CA when they both ruled that the denial of the
petitioners' second motion to dismiss Civil Case No. 02-105251 was proper.

Even without delving into the procedural allegations of the respondents that the petitioners engaged in forum
shopping and are already estopped from questioning the RTC's jurisdiction after having validly submitted to it when
the latter participated in the proceedings, the denial of the instant Petition is still in order. Although the respondents'
Complaint and Amended Complaint sought, among others, the disinheritance of Ramon and the release in favor of
the respondents of the CPPA now under Metrobank's custody, Civil Case No. 02-105251 remains to be an ordinary
civil action, and not a special proceeding pertaining to a settlement court.

An action for reconveyance and annulment of title with damages is a civil action, whereas matters relating to
settlement of the estate of a deceased person such as advancement of property made by the decedent, partake of
the nature of a special proceeding, which concomitantly requires the application of specific rules as provided for in the
Rules of Court.32 A special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular
fact.33 It is distinguished from an ordinary civil action where a party sues another for the enforcement or protection of
a right, or the prevention or redress of a wrong.34 To initiate a special proceeding, a petition and not a complaint
should be filed.

Under Article 916 of the NCC, disinheritance can be effected only through a will wherein the legal cause therefor shall
be specified. This Court agrees with the RTC and the CA that while the respondents in their Complaint and Amended
Complaint sought the disinheritance of Ramon, no will or any instrument supposedly effecting the disposition of
Antonio's estate was ever mentioned. Hence, despite the prayer for Ramon's disinheritance, Civil Case No. 02-
105251 does not partake of the nature of a special proceeding and does not call for the probate court's exercise of its
limited jurisdiction.
The petitioners also argue that the prayers in the Amended Complaint, seeking the release in favor of the
respondents of the CPPA under Metrobank's custody and the nullification of the instruments subject of the complaint,
necessarily require the determination of the respondents' status as Antonio's heirs.

It bears stressing that what the respondents prayed for was that they be declared as the rightful owners of the CPPA
which was in Mercedes' possession prior to the execution of the Agreement and Waiver. The respondents also
prayed for the alternative relief of securing the issuance by the RTC of a hold order relative to the CPPA to preserve
Antonio's deposits with Metrobank during the pendency of the case. It can thus be said that the respondents' prayer
relative to the CPPA was premised on Mercedes' prior possession of and their alleged collective ownership of the
same, and not on the declaration of their status as Antonio's heirs. Further, it also has to be emphasized that the
respondents were parties to the execution of the Agreement 35 and Waiver36 prayed to be nullified. Hence, even
without the necessity of being declared as heirs of Antonio, the respondents have the standing to seek for the
nullification of the instruments in the light of their claims that there was no consideration for their execution, and that
Ramon exercised undue influence and committed fraud against them. Consequently, the respondents then claimed
that the Affidavit of Extra-Judicial Settlement of Antonio’s estate executed by Ramon, and the TCTs issued upon the
authority of the said affidavit, are null and void as well. Ramon's averment that a resolution of the issues raised shall
first require a declaration of the respondents' status as heirs is a mere defense which is not determinative of which
court shall properly exercise jurisdiction.

In Marjorie Cadimas v. Marites Carrion and Gemma Hugo,37 the Court declared:

It is an elementary rule of procedural law that jurisdiction of the court over the subject matter is determined by the
allegations of the complaint irrespective of whether or not the plaintiff is entitled to recover upon all or some of the
claims asserted therein. As a necessary consequence, the jurisdiction of the court cannot be made to depend upon
the defenses set up in the answer or upon the motion to dismiss, for otherwise, the question of jurisdiction would
almost entirely depend upon the defendant. What determines the jurisdiction of the court is the nature of the action
pleaded as appearing from the allegations in the complaint. The averments in the complaint and the character of the
relief sought are the matters to be consulted. 1âwphi1

In sum, this Court agrees with the CA that the nullification of the documents subject of Civil Case No. 02-105251
could be achieved in an ordinary civil action, which in this specific case was instituted to protect the respondents from
the supposedly fraudulent acts of Ramon. In the event that the RTC will find grounds to grant the reliefs prayed for by
the respondents, the only consequence will be the reversion of the properties subject of the dispute to the estate of
Antonio. Civil Case No. 02-105251 was not instituted to conclusively resolve the issues relating to the administration,
liquidation and distribution of Antonio's estate, hence, not the proper subject of a special proceeding for the
settlement of the estate of a deceased person under Rules 73-91 of the Rules of Court.

The respondents' resort to an ordinary civil action before the RTC may not be strategically sound, because a
settlement proceeding should thereafter still follow, if their intent is to recover from Ramon the properties alleged to
have been illegally transferred in his name. Be that as it may, the RTC, in the exercise of its general jurisdiction,
cannot be restrained from taking cognizance of respondents' Complaint and Amended Complaint as the issues raised
and the prayers indicated therein are matters which need not be threshed out in a special proceeding.

WHEREFORE, the instant petition is DENIED. The petitioners' (a) Opposition to the respondents' Motion to Admit
Substitution of Party;38 and (b) Manifestation39 through counsel that they will no longer file a reply to the respondents'
Comment/Opposition to the instant petition are NOTED.

SO ORDERED.

G.R. No. L-66574 February 21, 1990

ANSELMA DIAZ, guardian of VICTOR, RODRIGO, ANSELMINA and MIGUEL, all surnamed SANTERO, and
FELIXBERTA PACURSA, guardian of FEDERICO SANTERO, et al., petitioners,
vs.
INTERMEDIATE APPELLATE COURT and FELISA PAMUTI JARDIN, respondents.
Ambrosio Padilla, Mempin & Reyes Law Offices for petitioners.

Pedro S. Sarino for respondent Felisa Pamuti Jardin.

RESOLUTION

PARAS, J.:

The decision of the Second Division of this Court in the case of Anselma Diaz, et al. vs. Intermediate Appellate Court,
et al., G.R. No. 6574, promulgated June 17, 1987 declaring Felisa Pamuti-Jardin to be the sole legitimate heir to the
intestate estate of the late Simona Pamuti Vda. de Santero, and its Resolution of February 24, 1988 denying the
Motion for Reconsideration dated July 2, 1987, are being challenged in this Second Motion for Reconsideration dated
July 5, 1988. After the parties had filed their respective pleadings, the Court, in a resolution dated October 27, 1988,
resolved to grant the request of the petitioners for oral argument before the court en banc, and the case was set for
hearing on November 17, 1988 to resolve the question: Does the term "relatives" in Article 992 of the New Civil Code
which reads:

An illegitimate child has no right to inherit ab intestato from the legitimate children or relatives of his
father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate
child.

include the legitimate parents of the father or mother of the illegitimate children? Invited to discuss as amici
curiaeduring the hearing were the following: Justice Jose B.L. Reyes, former Justice Minister Ricardo C. Puno, Dr.
Arturo Tolentino, former Justice Eduardo Caguioa, and Professor Ruben Balane.

The facts of the case, as synthesized in the assailed decision, are as follows:

It is undisputed: 1) that Felisa Pamuti Jardin is a niece of Simona Pamuti Vda. de Santero who
together with Felisa's mother Juliana were the only legitimate children of the spouses Felipe Pamuti
and Petronila Asuncion; 2) that Juliana married Simon Jardin and out of their union were born
Felisa Pamuti and another child who died during infancy; 3) that Simona Pamuti Vda. de Santero is
the widow of Pascual Santero and the mother of Pablo Santero; 4) that Pablo Santero was the only
legitimate son of his parents Pascual Santero and Simona Pamuti Vda. de Santero; 5) that Pascual
Santero died in 1970; Pablo Santero in 1973 and Simona Santero in 1976; 6) that Pablo Santero,
at the time of his death was survived by his mother Simona Santero and his six minor natural
children to wit: four minor children with Anselma Diaz and two minor children with Felixberta
Pacursa.
(pp. 1-2, Decision; pp. 190-191, Rollo)

Briefly stated, the real issue in the instant case is this — who are the legal heirs of Simona Pamuti Vda. de Santero
— her niece Felisa Pamuti-Jardin or her grandchildren (the natural children of Pablo Santero)?

The present controversy is confined solely to the intestate estate of Simona Pamuti Vda. de Santero. In connection
therewith, We are tasked with determining anew whether petitioners as illegitimate children of Pablo Santero could
inherit from Simona Pamuti Vda. de Santero, by right of representation of their father Pablo Santero who is a
legitimate child of Simona Pamuti Vda. de Santero.

Petitioners claim that the amendment of Articles 941 and 943 of the old Civil Code (Civil Code of Spain) by Articles
990 and 992 of the new Civil Code (Civil Code of the Philippines) constitute a substantial and not merely a formal
change, which grants illegitimate children certain successional rights. We do not dispute the fact that the New Civil
Code has given illegitimate children successional rights, which rights were never before enjoyed by them under the
Old Civil Code. They were during that time merely entitled to support. In fact, they are now considered as compulsory
primary heirs under Article 887 of the new Civil Code (No. 5 in the order of intestate succession). Again, We do not
deny that fact. These are only some of the many rights granted by the new Code to illegitimate children. But that is
all. A careful evaluation of the New Civil Code provisions, especially Articles 902, 982, 989, and 990, claimed by
petitioners to have conferred illegitimate children the right to represent their parents in the inheritance of their
legitimate grandparents, would in point of fact reveal that such right to this time does not exist.

Let Us take a closer look at the above-cited provisions.

Art.902. The rights of illegitimate children set forth in the preceding articles are transmitted upon
their death to their descendants, whether legitimate or illegitimate.

Art. 982. The grandchildren and other descendants shall inherit by right of representation and if any
one of them should have died, leaving several heirs, the portion pertaining to him shall be divided
among the latter in equal portions. (933)

Art. 989. If, together with illegitimate children, there should survive descendants of
another illegitimate child who is dead, the former shall succeed in their own right and the latter by
right of representation. (940a)

Art. 990. The hereditary rights granted by the two preceding articles to illegitimate children shall be
transmitted upon their death to their descendants, who shall inherit by right of representation from
their deceased grandparent. (941a) Emphasis supplied).

Articles 902, 989, and 990 clearly speak of successional rights of illegitimate children, which rights are transmitted to
their descendants upon their death. The descendants (of these illegitimate children) who may inherit by virtue of the
right of representation may be legitimate or illegitimate. In whatever manner, one should not overlook the fact that the
persons to be represented are themselves illegitimate. The three named provisions are very clear on this matter. The
right of representation is not available to illegitimate descendants of legitimate children in the inheritance of a
legitimate grandparent. It may be argued, as done by petitioners, that the illegitimate descendant of a legitimate child
is entitled to represent by virtue of the provisions of Article 982, which provides that "the grandchildren and other
descendants shall inherit by right of representation." Such a conclusion is erroneous. It would allow intestate
succession by an illegitimate child to the legitimate parent of his father or mother, a situation which would set at
naught the provisions of Article 992. Article 982 is inapplicable to instant case because Article 992 prohibits
absolutely a succession ab intestato between the illegitimate child and the legitimate children and relatives of the
father or mother. It may not be amiss to state that Article 982 is the general rule and Article 992 the exception.

"The rules laid down in Article 982 that 'grandchildren and other descendants shall inherit by right of representation
and in Article 902 that the rights of illegitimate children ... are transmitted upon their death to their descendants,
whether legitimate or illegitimate are subject to the limitation prescribed by Article 992 to the end that an illegitimate
child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother."' (Amicus
Curiae's Opinion by former Justice Minister Ricardo C. Puno, p. 12)

"Article 992 of the New Civil Code provides a barrier or iron curtain in that it prohibits absolutely a succession ab
intestato between the illegitimate child and the legitimate children and relatives of the father or mother of said
illegitimate child. They may have a natural tie of blood, but this is not recognized by law for the purpose of Article 992.
Between the legitimate family and the illegitimate family there is presumed to be an intervening antagonism and
incompatibility. The illegitimate child is disgracefully looked down upon by the legitimate family; and the family is in
turn, hated by the illegitimate child; the latter considers the privileged condition of the former, and the resources of
which it is thereby deprived; the former, in turn, sees in the illegitimate child nothing but the product of sin, palpable
evidence of a blemish broken in life; the law does no more than recognize this truth, by avoiding further ground of
resentment." (7 Manresa 110 cited in Grey v. Fable 40 OG (First S) No. 3, p. 196).

According to petitioners, the commentaries of Manresa as above- quoted are based on Articles 939 to 944 of the old
Civil Code and are therefore inapplicable to the New Civil Code and to the case at bar. Petitioners further argue that
the consistent doctrine adopted by this Court in the cases of Llorente vs. Rodriguez, et al., 10 Phil., 585; Centeno vs.
Centeno, 52 Phil. 322, and Oyao vs. Oyao, 94 Phil. 204, cited by former Justice Minister Justice Puno, Justice
Caguioa, and Prof. Balane, which identically held that an illegitimate child has no right to succeed ab intestato the
legitimate father or mother of his natural parent (also a legitimate child himself is already abrogated by the
amendments made by the Now Civil Code and thus cannot be made to apply to the instant case.

Once more, We decline to agree with petitioner. We are fully aware of certain substantial changes in our law of
succcession, but there is no change whatsoever with respect to the provision of Article 992 of the Civil Code.
Otherwise, by the said substantial change, Article 992, which was a reproduction •f Article 943 of the Civil Code of
Spain, should have been suppressed or at least modified to clarify the matters which are now the subject of the
present controversy. While the New Civil Code may have granted successional rights to illegitimate children, those
articles, however, in conjunction with Article 992, prohibit the right of representation from being exercised where the
person to be represented is a legitimate child. Needless to say, the determining factor is the legitimacy or illegitimacy
of the person to be represented. If the person to be represented is an illegitimate child, then his descendants,
whether legitimate or illegitimate, may represent him; however, if the person to be represented is legitimate, his
illegitimate descendants cannot represent him because the law provides that only his legitimate descendants may
exercise the right of representation by reason of the barrier imposed Article 992. In this wise, the commentaries of
Manresa on the matter in issue, even though based on the old Civil Code, are still very much applicable to the New
Civil Code because the amendment, although substantial, did not consist of giving illegitimate children the right to
represent their natural parents (legitimate) in the intestate succession of their grandparents (legitimate). It is with the
same line of reasoning that the three aforecited cases may be said to be still applicable to the instant case.

Equally important are the reflections of the Illustrious Hon. Justice Jose B.L. Reyes which also find support from other
civilists. We quote:

In the Spanish Civil Code of 1889 the right of representation was admitted only within the legitimate
family; so much so that Article 943 of that Code prescribed that an illegitimate child can not
inherit ab intestato from the legitimate children and relatives of his father and mother. The Civil
Code of the Philippines apparently adhered to this principle since it reproduced Article 943 of the
Spanish Code in its own Art. 992, but with fine inconsistency, in subsequent articles (990, 995 and
998) our Code allows the hereditary portion of the illegitimate child to pass to his own descendants,
whether legitimate or illegitimate. So that while Art. 992 prevents the illegitimate issue of a
legitimate child from representing him in the intestate succession of the grandparent, the
illegitimates of an illegitimate child can now do so. This difference being indefensible and
unwarranted, in the future revision of the Civil Code we shall have to make a choice and decide
either that the illegitimate issue enjoys in all cases the right of representation, in which case Art.
992 must be suppressed; or contrariwise maintain said article and modify Articles 992 and 998. The
first solution would be more in accord with an enlightened attitude vis-a-vis illegitimate children.
(Reflections on the Reform of hereditary Succession, JOURNAL of the Integrated Bar of the
Philippines, First Quartet 1976, Volume 4, Number 1, pp. 40-41). (p. 7, Decision; p. 196, Rollo)

It is therefore clear from Article 992 of the New Civil Code that the phrase "legitimate children and relatives of his
father or mother" includes Simona Pamuti Vda. de Santero as the word "relative" is broad enough to comprehend all
the kindred of the person spoken of. (Comment, p. 139 Rollo citing p. 2862 Bouvier's Law Dictionary vol. 11, Third
Revision, Eight Edition) The record reveals that from the commencement of this case the only parties who claimed to
be the legitimate heirs of the late Simona Pamuti Vda. de Santero are Felisa Pamuti Jardin and the six minor natural
or illegitimate children of Pablo Santero. Since petitioners herein are barred by the provisions of Article 992, the
respondent Intermediate Appellate Court did not commit any error in holding Felisa Pamuti Jardin to be the sole
legitimate heir to the intestate estate of the late Simona Pamuti Vda. de Santero.

It is Our shared view that the word "relatives" should be construed in its general acceptation. Amicus curiae Prof.
Ruben Balane has this to say:

The term relatives, although used many times in the Code, is not defined by it. In accordance
therefore with the canons of statutory interpretation, it should be understood to have a general and
inclusive scope, inasmuch as the term is a general one. Generalia verba sunt generaliter
intelligenda. That the law does not make a distinction prevents us from making one: Ubi lex non
distinguit, nec nos distinguera debemus. Esrinche, in his Diccionario de Legislacion y
Jurisprudencia defines parientes as "los que estan relacionados por los vinculos de la sangre, ya
sea por proceder unos de otros, como los descendientes y ascendientes, ya sea por proceder de
una misma raiz o tronco, como los colaterales. (cited in Scaevola, op. cit., p. 457). (p. 377, Rollo)

According to Prof. Balane, to interpret the term relatives in Article 992 in a more restrictive sense than it is used and
intended is not warranted by any rule of interpretation. Besides, he further states that when the law intends to use the
term in a more restrictive sense, it qualifies the term with the word collateral, as in Articles 1003 and 1009 of the New
Civil Code.
Thus, the word "relatives" is a general term and when used in a statute it embraces not only collateral relatives but
also all the kindred of the person spoken of, unless the context indicates that it was used in a more restrictive or
limited sense — which as already discussed earlier, is not so in the case at bar.

To recapitulate, We quote this:

The lines of this distinction between legitimates and illegitimates. which goes back very far in legal
history, have been softened but not erased by present law. Our legislation has not gone so far as to
place legitimate and illegitimate children on exactly the same footing. Even the Family Code of
1987 (EO 209) has not abolished the gradation between legitimate and illegitimate children
(although it has done away with the sub-classification of illegitimates into natural and 'spurious'). It
would thus be correct to say that illegitimate children have only those rights which are expressly or
clearly granted to them by law (vide Tolentino, Civil Code of the Philippines, 1973 ed., vol. III, p.
291). (Amicus Curiae's Opinion by Prof. Ruben Balane, p. 12).

In the light of the foregoing, We conclude that until Article 992 is suppressed or at least amended to clarify the term
"relatives" there is no other alternative but to apply the law literally. Thus, We hereby reiterate the decision of June
17, 1987 and declare Felisa Pamuti-Jardin to be the sole heir to the intestate estate of Simona Pamuti Vda. de
Santero, to the exclusion of petitioners.

WHEREFORE, the second Motion for Reconsideration is DENIED, and the assailed decision is hereby AFFIRMED.

SO ORDERED.

G.R. No. 183053 June 16, 2010

IN THE MATTER OF THE INTESTATE ESTATE OF CRISTINA AGUINALDO-SUNTAY; EMILIO A.M. SUNTAY
III,Petitioner,
vs.
ISABEL COJUANGCO-SUNTAY, Respondent.

DECISION

NACHURA, J.:

Unlike Pope Alexander VI1 who, faced with the impasse between Spain and Portugal, deftly and literally divided the
exploration, or more appropriately, the riches of the New World by issuing the Inter Caetera, 2 we are confronted with
the difficult, albeit, all too familiar tale of another family imbroglio over the estate of a decedent. 3

This is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the Decision of the Court of
Appeals (CA) in CA-G.R. CV No. 74949,4 reversing the decision of the Regional Trial Court (RTC), Branch 78,
Malolos, Bulacan, in Special Proceeding Case No. 117-M-95.5

Before anything else, we disentangle the facts.

On June 4, 1990, the decedent, Cristina Aguinaldo-Suntay (Cristina), married to Dr. Federico Suntay (Federico), died
intestate. In 1979, their only son, Emilio Aguinaldo Suntay (Emilio I), predeceased both Cristina and Federico. At the
time of her death, Cristina was survived by her husband, Federico, and several grandchildren, including herein
petitioner Emilio A.M. Suntay III (Emilio III) and respondent Isabel Cojuangco-Suntay.

During his lifetime, Emilio I was married to Isabel Cojuangco, and they begot three children, namely: herein
respondent, Isabel; Margarita; and Emilio II, all surnamed Cojuangco-Suntay. Emilio I’s marriage to Isabel Cojuangco
was subsequently annulled. Thereafter, Emilio I had two children out of wedlock, Emilio III and Nenita Suntay Tañedo
(Nenita), by two different women, Concepcion Mendoza and Isabel Santos, respectively.
Despite the illegitimate status of Emilio III, he was reared ever since he was a mere baby, nine months old, by the
spouses Federico and Cristina and was an acknowledged natural child of Emilio I. Nenita is an acknowledged natural
child of Emilio I and was likewise brought up by the spouses Federico and Cristina.

As previously adverted to, the marriage between Emilio I and Isabel was annulled. 6 Consequently, respondent and
her siblings Margarita and Emilio II, lived with their mother on Balete Drive, Quezon City, separately from their father
and paternal grandparents.

Parenthetically, after the death of Emilio I, Federico filed a petition for visitation rights over his grandchildren:
respondent Isabel, Margarita, and Emilio II. Although the Juvenile and Domestic Relations Court in Quezon City
granted the petition and allowed Federico one hour of visitation monthly, initially reduced to thirty minutes, it was
altogether stopped because of a manifestation filed by respondent Isabel, articulating her sentiments on the
unwanted visits of her grandparents.

Significantly, Federico, after the death of his spouse, Cristina, or on September 27, 1993, adopted their illegitimate
grandchildren, Emilio III and Nenita.71avv phi1

On October 26, 1995, respondent filed a petition for the issuance of letters of administration in her favor, containing
the following allegations:

[A]t the time of [the decedent’s] death, [she] was a resident of the Municipality of Hagonoy, Province of Bulacan; that
the [decedent] left an estate of real and personal properties, with a probable gross value of ₱29,000,000.00; that the
names, ages and residences of the surviving heirs of the [decedent] are: (1) Federico C. Suntay, 89 years old,
surviving spouse and a resident of x x x; (2) Isabel Cojuangco-Suntay, 36 years old, legitimate granddaughter and a
resident of x x x; (3) Margarita Cojuangco-Suntay, 39 years old, legitimate granddaughter and a resident of x x x; and
(4) Emilio Cojuangco-Suntay, 35 years old, legitimate grandson and a resident of x x x; and that as far as
[respondent] knew, the decedent left no debts or obligation at the time of her death. 8

Disavowing the allegations in the petition of his grandchild, respondent Isabel, Federico filed his opposition on
December 21, 1995, alleging, among others, that:

[B]eing the surviving spouse of Cristina, he is capable of administering her estate and he should be the one
appointed as its administrator; that as part owner of the mass of conjugal properties left by Cristina, he must be
accorded legal preference in the administration thereof; that Isabel and her family had been alienated from their
grandparents for more than thirty (30) years; that the enumeration of heirs in the petition was incomplete as it did not
mention the other children of his son[,] namely: Emilio III and Nenita S. Tañedo; that he is better situated to protect
the integrity of the estate of Cristina as even before the death of his wife[,] he was already the one who managed
their conjugal properties; that the probable value of the estate as stated in the petition was grossly overstated (sic);
and that Isabel’s allegation that some of the properties are in the hands of usurpers is untrue. 9

Meanwhile, after a failed attempt by the parties to settle the proceedings amicably, Federico filed a Manifestation
dated March 13, 1999, nominating his adopted son, Emilio III, as administrator of the decedent’s estate on his behalf,
in the event he would be adjudged as the one with a better right to the letters of administration.

Subsequently, the trial court granted Emilio III’s Motion for Leave to Intervene considering his interest in the outcome
of the case. Emilio III filed his Opposition-In-Intervention, which essentially echoed the allegations in his grandfather’s
opposition, alleging that Federico, or in his stead, Emilio III, was better equipped than respondent to administer and
manage the estate of the decedent, Cristina. Additionally, Emilio III averred his own qualifications that: "[he] is
presently engaged in aquaculture and banking; he was trained by the decedent to work in his early age by involving
him in the activities of the Emilio Aguinaldo Foundation which was established in 1979 in memory of her
grandmother’s father; the significant work experiences outside the family group are included in his curriculum vitae;
he was employed by the oppositor [Federico] after his graduation in college with management degree at F.C.E.
Corporations and Hagonoy Rural Bank; x x x."10

In the course of the proceedings, on November 13, 2000, Federico died.

After the testimonies of both parties’ witnesses were heard and evidence on their respective allegations were
adduced, the trial court rendered a decision on November 9, 2001, appointing herein petitioner, Emilio III, as
administrator of decedent Cristina’s intestate estate, to wit:

WHEREFORE, the petition of Isabel Cojuangco[-]Suntay is DENIED and the Opposition[-]in[-]Intervention is

GRANTED.

Accordingly, the Intervenor, Emilio A.M. Suntay, III is hereby appointed administrator of the estate of the decedent
Cristina Aguinaldo Suntay, who shall enter upon the execution of his trust upon the filing of a bond in the amount of
₱200,000.00, conditioned as follows:

(1) To make and return within three (3) months, a true and complete inventory;

(2) To administer the estate and to pay and discharge all debts, legatees, and charge on the same, or
dividends thereon;

(3) To render a true and just account within one (1) year, and at any other time when required by the court,
and

(4) To perform all orders of the Court.

Once the said bond is approved by the court, let Letters of Administration be issued in his favor.

SO ORDERED.11

Aggrieved, respondent filed an appeal before the CA, which reversed and set aside the decision of the RTC, revoked
the Letters of Administration issued to Emilio III, and appointed respondent as administratrix of the intestate estate of
the decedent, Cristina, to wit:

WHEREFORE, in view of all the foregoing, the assailed decision dated November 9, 2001 of Branch 78, Regional
Trial Court of Malolos, Bulacan in SPC No. 117-M-95 is REVERSED and SET ASIDE and the letters of administration
issued by the said court to Emilio A.M. Suntay III, if any, are consequently revoked. Petitioner Isabel Cojuangco[-
]Suntay is hereby appointed administratrix of the intestate estate of Cristina Aguinaldo Suntay. Let letters of
administration be issued in her favor upon her filing of a bond in the amount of Two Hundred Thousand
(₱200,000.00) Pesos.

No pronouncement as to costs.

SO ORDERED.12

The motion for reconsideration of Emilio III having been denied, he appeals by certiorari to this Court, raising the
following issues:

A. IN THE APPOINTMENT OF AN ADMINISTRATOR OF THE ESTATE UNDER SECTION 6 OF RULE 78 OF THE

RULES OF COURT, WHETHER ARTICLE 992 OF THE CIVIL CODE APPLIES; and

B. UNDER THE UNDISPUTED FACTS WHERE HEREIN PETITIONER WAS REARED BY THE DECEDENT AND
HER SPOUSE SINCE INFANCY, WHETHER ARTICLE 992 OF THE NEW CIVIL CODE APPLIES SO AS TO BAR
HIM FROM BEING APPOINTED ADMINISTRATOR OF THE DECEDENT’S ESTATE.13

In ruling against the petition of herein respondent, the RTC ratiocinated, thus:

Evidence objectively assessed and carefully evaluated, both testimonial and documentary, the court opines that it is
to the best interest of the estate of the decedent and all claimants thereto, that the Intervenor, Emilio A.M. Suntay III,
be appointed administrator of the estate in the above-entitled special proceedings.
Based on the evidence and demeanor of the parties in court, [respondent’s immediate] family and that of the
decedent are apparently estranged. The root cause of which, is not for this court to ascertain nor is this the right time
and the proper forum to dwell upon. What matters most at this time is the welfare of the estate of the decedent in the
light of such unfortunate and bitter estrangement.

The Court honestly believes that to appoint the petitioner would go against the wishes of the decedent who raised
[Emilio III] from infancy in her home in Baguio City as her own child. Certainly, it would go against the wishes of the
surviving spouse x x x who nominated [Emilio III] for appointment as administrator.

As between [respondent] and the oppositor [Federico], the latter is accorded preference as the surviving spouse
under Sec 6(a), Rule 78, Rules of Court. On the basis of such preference, he vigorously opposed the appointment of
the petitioner and instead nominated [Emilio III], his grandchild and adopted child. Such nomination, absent any valid
and justifiable reason, should not be imperiously set aside and insouciantly ignored, even after the oppositor
[Federico] has passed away, in order to give effect to the order of preference mandated by law. Moreover, from the
viewpoint of the estate, the nomination of [Emilio III] appear[s] intrinsically meritorious. For the benefit of the estate
and its claimants, creditors, as well as heirs, the administrator should be one who is prepared, academically and by
experience, for the demands and responsibilities of the position. While [respondent], a practicing physician, is not
unqualified, it is clear to the court that when it comes to management of real estate and the processing and payment
of debts, [Emilio III], a businessman with an established track record as a manager has a decided edge and
therefore, is in a position to better handle the preservation of the estate.14

In marked contrast, the CA zeroed in on Emilio III’s status as an illegitimate child of Emilio I and, thus, barred from
representing his deceased father in the estate of the latter’s legitimate mother, the decedent. On the whole, the CA
pronounced that Emilio III, who was merely nominated by Federico, and which nomination hinged upon the latter’s
appointment as administrator of the decedent’s estate, cannot be appointed as the administrator of the decedent’s
estate for the following reasons:15

1. The appointment of Emilio III was subject to a suspensive condition, i.e., Federico’s appointment as
administrator of the estate, he being the surviving spouse of Cristina, the decedent. The death of Federico
before his appointment as administrator of Cristina’s estate rendered his nomination of Emilio III inoperative;

2. As between the legitimate offspring (respondent) and illegitimate offspring (Emilio III) of decedent’s son,
Emilio I, respondent is preferred, being the "next of kin" referred to by Section 6, Rule 78 of the Rules of
Court, and entitled to share in the distribution of Cristina’s estate as an heir;

3. Jurisprudence has consistently held that Article 992 16 of the Civil Code bars the illegitimate child from
inheriting ab intestato from the legitimate children and relatives of his father or mother. Thus, Emilio III, who
is barred from inheriting from his grandmother, cannot be preferred over respondent in the administration of
the estate of their grandmother, the decedent; and

4. Contrary to the RTC’s finding, respondent is as much competent as Emilio III to administer and manage
the subject estate for she possesses none of the disqualifications specified in Section 1, 17 Rule 78 of the
Rules of Court.

The pivotal issue in this case turns on who, as between Emilio III and respondent, is better qualified to act as
administrator of the decedent’s estate.

We cannot subscribe to the appellate court’s ruling excluding Emilio III in the administration of the decedent’s
undivided estate. Mistakenly, the CA glosses over several undisputed facts and circumstances:

1. The underlying philosophy of our law on intestate succession is to give preference to the wishes and
presumed will of the decedent, absent a valid and effective will;

2. The basis for Article 992 of the Civil Code, referred to as the iron curtain bar rule, 18 is quite the opposite
scenario in the facts obtaining herein for the actual relationship between Federico and Cristina, on one hand,
and Emilio III, on the other, was akin to the normal relationship of legitimate relatives;
 3. Emilio III was reared from infancy by the decedent, Cristina, and her husband, Federico, who both
acknowledged him as their grandchild;

4. Federico claimed half of the properties included in the estate of the decedent, Cristina, as forming part of
their conjugal partnership of gains during the subsistence of their marriage;

5. Cristina’s properties forming part of her estate are still commingled with that of her husband, Federico,
because her share in the conjugal partnership, albeit terminated upon her death, remains undetermined and
unliquidated; and

6. Emilio III is a legally adopted child of Federico, entitled to share in the distribution of the latter’s estate as
a direct heir, one degree from Federico, not simply representing his deceased illegitimate father, Emilio I.

From the foregoing, it is patently clear that the CA erred in excluding Emilio III from the administration of the
decedent’s estate. As Federico’s adopted son, Emilio III’s interest in the estate of Cristina is as much apparent to this
Court as the interest therein of respondent, considering that the CA even declared that "under the law, [Federico],
being the surviving spouse, would have the right of succession over a portion of the exclusive property of the
decedent, aside from his share in the conjugal partnership." Thus, we are puzzled why the CA resorted to a strained
legal reasoning – Emilio III’s nomination was subject to a suspensive condition and rendered inoperative by reason of
Federico’s death – wholly inapplicable to the case at bar.

Section 6, Rule 78 of the Rules of Court lists the order of preference in the appointment of an administrator of an
estate:

SEC. 6. When and to whom letters of administration granted. – If no executor is named in the will, or the executor or
executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate, administration shall be
granted:

(a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the
court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if
competent and willing to serve;

(b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be
incompetent or unwilling, or if the husband or widow, or next of kin, neglects for thirty (30) days after the
death of the person to apply for administration or to request that administration be granted to some other
person, it may be granted to one or more of the principal creditors, if competent and willing to serve;

(c) If there is no such creditor competent and willing to serve, it may be granted to such other person as the
court may select.

However, the order of preference is not absolute for it depends on the attendant facts and circumstances of each
case.19 Jurisprudence has long held that the selection of an administrator lies in the sound discretion of the trial
court.20 In the main, the attendant facts and circumstances of this case necessitate, at the least, a joint administration
by both respondent and Emilio III of their grandmother’s, Cristina’s, estate.

In the case of Uy v. Court of Appeals,21 we upheld the appointment by the trial court of a co-administration between
the decedent’s son and the decedent’s brother, who was likewise a creditor of the decedent’s estate. In the same
vein, we declared in Delgado Vda. de De la Rosa v. Heirs of Marciana Rustia Vda. de Damian 22 that:

[i]n the appointment of an administrator, the principal consideration is the interest in the estate of the one to be
appointed. The order of preference does not rule out the appointment of co-administrators, specially in cases where
justice and equity demand that opposing parties or factions be represented in the management of the estates, a
situation which obtains here.

Similarly, the subject estate in this case calls to the succession other putative heirs, including another illegitimate
grandchild of Cristina and Federico, Nenita Tañedo, but who was likewise adopted by Federico, and the two (2)
siblings of respondent Isabel, Margarita and Emilio II. In all, considering the conflicting claims of the putative heirs,
and the unliquidated conjugal partnership of Cristina and Federico which forms part of their respective estates, we
are impelled to move in only one direction, i.e., joint administration of the subject estate.

One final note. Counsel for petitioner meticulously argues that Article 992 of the Civil Code, the successional bar
between the legitimate and illegitimate relatives of a decedent, does not apply in this instance where facts indubitably
demonstrate the contrary – Emilio III, an illegitimate grandchild of the decedent, was actually treated by the decedent
and her husband as their own son, reared from infancy, educated and trained in their businesses, and eventually
legally adopted by decedent’s husband, the original oppositor to respondent’s petition for letters of administration.

We are not unmindful of the critiques of civilists of a conflict and a lacuna in the law concerning the bone of
contention that is Article 992 of the Civil Code, beginning with the eminent Justice J.B.L. Reyes:

In the Spanish Civil Code of 1889 the right of representation was admitted only within the legitimate family; so much
so that Article 943 of that Code prescribed that an illegitimate child can not inherit ab intestato from the legitimate
children and relatives of his father and mother. The Civil Code of the Philippines apparently adhered to this principle
since it reproduced Article 943 of the Spanish Code in its own Art. 992, but with fine inconsistency, in subsequent
articles (990, 995 and 998) our Code allows the hereditary portion of the illegitimate child to pass to his own
descendants, whether legitimate or illegitimate. So that while Art. 992 prevents the illegitimate issue of a legitimate
child from representing him in the intestate succession of the grandparent, the illegitimates of an illegitimate child can
now do so. This difference being indefensible and unwarranted, in the future revision of the Civil Code we shall have
to make a choice and decide either that the illegitimate issue enjoys in all cases the right of representation, in which
case Art. 992 must be suppressed; or contrariwise maintain said article and modify Articles 995 and 998. The first
solution would be more in accord with an enlightened attitude vis-à-vis illegitimate children.23

Manresa explains the basis for the rules on intestate succession:

The law [of intestacy] is founded… on the presumed will of the deceased… Love, it is said, first descends, then
ascends, and, finally, spreads sideways. Thus, the law first calls the descendants, then the ascendants, and finally
the collaterals, always preferring those closer in degree to those of remoter degrees, on the assumption that the
deceased would have done so had he manifested his last will… Lastly, in default of anyone called to succession or
bound to the decedent by ties of blood or affection, it is in accordance with his presumed will that his property be
given to charitable or educational institutions, and thus contribute to the welfare of humanity.24

Indeed, the factual antecedents of this case accurately reflect the basis of intestate succession, i.e., love first
descends, for the decedent, Cristina, did not distinguish between her legitimate and illegitimate grandchildren. Neither
did her husband, Federico, who, in fact, legally raised the status of Emilio III from an illegitimate grandchild to that of
a legitimate child. The peculiar circumstances of this case, painstakingly pointed out by counsel for petitioner,
overthrow the legal presumption in Article 992 of the Civil Code that there exist animosity and antagonism between
legitimate and illegitimate descendants of a deceased.

Nonetheless, it must be pointed out that judicial restraint impels us to refrain from making a final declaration of
heirship and distributing the presumptive shares of the parties in the estates of Cristina and Federico, considering
that the question on who will administer the properties of the long deceased couple has yet to be settled.

Our holding in Capistrano v. Nadurata25 on the same issue remains good law:

[T]he declaration of heirs made by the lower court is premature, although the evidence sufficiently shows who are
entitled to succeed the deceased. The estate had hardly been judicially opened, and the proceeding has not as yet
reached the stage of distribution of the estate which must come after the inheritance is liquidated.

Section 1, Rule 90 of the Rules of Court does not depart from the foregoing admonition:

Sec. 1. When order for distribution of residue is made. – x x x. If there is a controversy before the court as to who are
the lawful heirs of the deceased person or as to the distributive shares to which each person is entitled under the law,
the controversy shall be heard and decided as in ordinary cases.
No distribution shall be allowed until the payment of the obligations above mentioned has been made or provided for,
unless the distributees, or any of them, give a bond, in a sum to be fixed by the court, conditioned for the payment of
said obligations within such time as the court directs.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No. 74949 is
REVERSED and SET ASIDE. Letters of Administration over the estate of decedent Cristina Aguinaldo-Suntay shall
issue to both petitioner Emilio A.M. Suntay III and respondent Isabel Cojuangco-Suntay upon payment by each of a
bond to be set by the Regional Trial Court, Branch 78, Malolos, Bulacan, in Special Proceeding Case No. 117-M-95.
The Regional Trial Court, Branch 78, Malolos, Bulacan is likewise directed to make a determination and to declare
the heirs of decedent Cristina Aguinaldo-Suntay according to the actual factual milieu as proven by the parties, and
all other persons with legal interest in the subject estate. It is further directed to settle the estate of decedent Cristina
Aguinaldo-Suntay with dispatch. No costs.

SO ORDERED.

G.R. No. 77867 February 6, 1990

ISABEL DE LA PUERTA, petitioner,

vs.
THE HONORABLE COURT OF APPEALS and CARMELITA DE LA PUERTA, respondents.

Isabel de la Puerta for and in her own behalf.

Gilbert D. Camaligan for private respondent.

CRUZ, J.:

The basic issue involved in this case is the filiation of private respondent Carmelita de la Puerta, who claims
successional lights to the estate of her alleged grandmother.

Dominga Revuelta died on July 3, 1966, at the age of 92, with a will leaving her properties to her three surviving
children, namely, Alfredo, Vicente and Isabel, all surnamed de la Puerta. Isabel was given the free portion in addition
to her legitime and was appointed executrix of the will. 1

The petition for the probate of the will filed by Isabel was opposed by her brothers, who averred that their mother was
already senile at the time of the execution of the will and did not fully comprehend its meaning. Moreover, some of the
properties listed in the inventory of her estate belonged to them exclusively. 2

Meantime, Isabel was appointed special administratrix by the probate court. Alfredo subsequently died, leaving
3

Vicente the lone oppositor. 4

On August 1, 1974, Vicente de la Puerta filed with the Court of First Instance of Quezon a petition to adopt Carmelita
de la Puerta. After hearing, the petition was granted. However, the decision was appealed by Isabel to the Court of
5

Appeals. During the pendency of the appeal, Vicente died, prompting her to move for the dismissal of the case 6

On November 20, 1981, Carmelita, having been allowed to intervene in the probate proceedings, filed a motion for
the payment to her of a monthly allowance as the acknowledged natural child of Vicente de la Puerta. At the hearing
7

on her motion, Carmelita presented evidence to prove her claimed status to which Isabel was allowed to submit
counter-evidence.
On November 12,1982, the probate court granted the motion, declaring that it was satisfied from the evidence at
hand that Carmelita was a natural child of Vicente de la Puerta and was entitled to the amounts claimed for her
support. The court added that "the evidence presented by the petitioner against it (was) too weak to discredit the
same. 8

On appeal, the order of the lower court was affirmed by the respondent court, which is now in turn being challenged
9

in this petition before us.

The petitioner's main argument is that Carmelita was not the natural child of Vicente de la Puerta, who was married to
Genoveva de la Puerta in 1938 and remained his wife until his death in 1978. Carmelita's real parents are Juanita
Austrial and Gloria Jordan.

Invoking the presumption of legitimacy, she argues that Carmelita was the legitimate child of Juanita Austrial and
Gloria Jordan, who were legally or presumably married. Moreover, Carmelita could not have been a natural child of
Vicente de la Puerta because he was already married at the time of her birth in 1962.

To prove her point, Isabel presented Amado Magpantay, who testified that he was a neighbor of Austrial and Jordan.
According to him, the two were living as husband and wife and had three children, including a girl named "Puti,"
presumably Carmelita. He said though that he was not sure if the couple was legally married. 10

Another witness, Genoveva de la Puerta, Identified herself as Vicente de la Puerta's wife but said they separated two
years after their marriage in 1938 and were never reconciled. In 1962, Gloria Jordan started living with Vicente de la
Puerta in his house, which was only five or six houses away from where she herself was staying. Genoveva said that
the relationship between her husband and Gloria was well known in the community. 11

In finding for Carmelita, the lower court declared that:

. . . By her evidence, it was shown to the satisfaction of the Court that she was born on December
18, 1962 per her birth certificate (Exh. A); that her father was Vicente de la Puerta and her mother
is Gloria Jordan who were living as common law husband and wife until his death on June 14,
1978; that Vicente de la Puerta was married to, but was separated from, his legal wife Genoveva
de la Puerta; that upon the death of Vicente de la Puerta on June 14, 1978 without leaving a last
will and testament, she was the only child who survived him together with his spouse Genoveva de
la Puerta with whom he did not beget any child; that she was treated by Vicente de la Puerta as a
true child from the time of her birth until his father died; that the fact that she was treated as a child
of Vicente de la Puerta is shown by the family pictures showing movant with Vicente de la Puerta
(Exhs. D, D-1 and D-2) and school records wherein he signed the report cards as her parent (Exh.
E and E-1); that during the hearing of her adoption case in Special Proceeding No. 0041 in Branch
V of this Court at Mauban, Quezon, Vicente de la Puerta categorically stated in court that Carmelita
de la Puerta is his daughter with Gloria Jordan (Exhs. B and B-1); that it was Vicente de la Puerta
during his lifetime who spent for her subsistence, support and education; . . . 12

This is a factual finding that we do not see fit to disturb, absent any of those circumstances we have laid down in a
long line of decisions that will justify reversal. Among these circumstances are: (1) the conclusion is a finding
13

grounded entirely on speculation, surmise and conjecture; (2) the inference made is manifestly mistaken; (3) there is
grave abuse of discretion; (4) the judgment is based on a misapprehension of facts; (5) the findings of fact are
conflicting; (6) the Court of Appeals went beyond the issues of the case and its findings are contrary to the
admissions of both appellant and appellees; (7) the findings of fact of the Court of Appeals are contrary to those of
the trial court; (8) said findings of facts are conclusions without citation of specific evidence on which they are based;
(9) the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the
respondents; and (10) the findings of fact of the Court of Appeals are premised on the supposed absence of evidence
and contradicted by the evidence on record.

The petitioner insists on the application of the following provisions of the Civil Code to support her thesis that
Carmelita is not the natural child of Vicente de la Puerta but the legitimate child of Juanito Austrial and Gloria Jordan:

Art. 255. Children born after one hundred and eighty days following the celebration of the marriage,
and before three hundred days following its dissolution or the separation of the spouses shall be
presumed to be legitimate.
 Against this presumption no evidence shall be admitted other than that of the physical impossibility
of the husband's having access to his wife within the first one hundred and twenty days of the three
hundred which preceded the birth of the child.

This physical impossibility may be caused:

(1) By the impotence of the husband;

(2) By the fact that the husband and wife were living separately in such a way that access was not
possible;

(3) By the serious illness of the husband.

Art. 256. The child shall be presumed legitimate, although the mother may have declared against
its legitimacy or may have been sentenced as an adulteress.

These rules are in turn based on the presumption that Juanito and Gloria were married at the time of Carmelita's birth
in 1962, pursuant to Rule 131, Sec. 5(bb) of the Rules of Court, providing that:

Sec. 5. Disputable presumptions.—The following presumptions are satisfactory if uncontradicted,

but may be contradicted and overcome by other evidence:

xxx xxx xxx

(bb) That a man and woman deporting themselves as husband and wife have entered into a lawful
contract of marriage;

But this last-quoted presumption is merely disputable and may be refuted with evidence to the contrary. As the Court
sees it, such evidence has been sufficiently established in the case at bar.

The cases cited by the petitioner are not exactly in point because they involve situations where the couples lived
14

continuously as husband and wife and so could be reasonably presumed to be married. In the case before us, there
was testimony from Vicente's own wife that her husband and Gloria lived together as a married couple, thereby
rebutting the presumption that Gloria was herself the lawful wife of Juanita Austrial.

Such testimony would for one thing show that Juanito and Gloria did not continuously live together as a married
couple. Moreover, it is not explained why, if he was really married to her, Juanito did not object when Gloria left the
conjugal home and started openly consorting with Vicente, and in the same neighborhood at that. That was
unnatural, to say the least. It was different with Genoveva for she herself swore that she had separated from Vicente
two years after their marriage and had long lost interest in her husband. In fact, she even renounced in open court
any claim to Vicente's estate. 15

The presumption of marriage between Juanito and Gloria having been destroyed, it became necessary for the
petitioner to submit additional proof to show that the two were legally married. She did not.

Turning now to the evidence required to prove the private respondent's filiation, we reject the petitioner's contention
that Article 278 of the Civil Code is not available to Carmelita. It is error to contend that as she is not a natural child
but a spurious child (if at all) she cannot prove her status by the record of birth, a will, a statement before a court of
record, or any authentic writing. On the contrary, it has long been settled that:

The so-called spurious children or illegitimate children other than natural children, commonly known
as bastards, include adulterous children or those born out of wedlock to a married woman
cohabiting with a man other than her husband or to a married man cohabiting with a woman other
than his wife. They are entitled to support and successional rights (Art. 287, CC). But their filiation
must be duly proven.(Ibid, Art. 887)
 How should their filiation be proven? Article 289 of the Civil Code allows the investigation of the
paternity or maternity of spurious children under the circumstances specified in Articles 283 and
284 of the Civil Code. The implication is that the rules on compulsory recognition of natural children
are applicable to spurious children.

Spurious children should not be in a better position than natural children. The rules on proof of
filiation of natural children or the rule on voluntary and compulsory acknowledgment for natural
children may be applied to spurious children. 16

This being so, we need not rule now on the admissibility of the private respondent's certificate of birth as proof of her
filiation. That status was sufficiently established by the sworn testimony of Vicente de la Puerta at the hearing of the
petition for adoption on September 6, 1976, where he categorically declared as follows:

Q What relation if any do you have with Carmelita de la Puerta?

A She is my daughter. 17

Finally, we move to the most crucial question, to wit: May Carmelita de la Puerta claim support and successional
rights to the estate of Dominga Revuelta?

According to Article 970 of the Civil Code:

Art. 970. Representation is a right created by fiction of law, by virtue of which the representative is
raised to the place and the degree of the person represented, and acquires the rights which the
latter would have if he were living or if he could have inherited.

The answer to the question posed must be in the negative. The first reason is that Vicente de la Puerta did not
predecease his mother; and the second is that Carmelita is a spurious child.

It is settled that —

In testamentary succession, the right of representation can take place only in the following cases:
first, when the person represented dies before the testator; second, when the person represented
is incapable of succeeding the testator; and third, when the person represented is disinherited by
the testator. In all of these cases, since there is a vacancy in the inheritance, the law calls the
children or descendants of the person represented to succeed by right of representation. 18

xxx xxx xxx

The law is clear that there is representation only when relatives of a deceased person try to
succeed him in his rights which he would have had if still living. In the present case, however, said
deceased had already succeeded his aunt, the testatrix herein. . . . It is a fact that at the time of the
death of the testatrix, Reynaldo Cuison was still alive. He died two months after her (testatrix's)
death. And upon his death, he transmitted to his heirs, the petitioners herein Elisa Cuison et al., the
legacy or the right to succeed to the legacy. . . . In other words, the herein petitioners-appellants
are not trying to succeed to the right to the property of the testatrix, but rather to the right of the
legatee Reynaldo Cuison in said property. 19

Not having predeceased Dominga Revuelta, her son Vicente had the right to inherit from her directly or in his own
right. No right of representation was involved, nor could it be invoked by Carmelita upon her father's death, which
came after his own mother's death. It would have been different if Vicente was already dead when Dominga Revuelta
died. Carmelita could then have inherited from her in representation of her father Vicente, assuming the private
respondent was a lawful heir.

But herein lies the crux, for she is not. As a spurious child of Vicente, Carmelita is barred from inheriting from
Dominga because of Article 992 of the Civil Code, which lays down the barrier between the legitimate and illegitimate
families. This article provides quite clearly:
 Art. 992. An illegitimate child has no right to inherit ab intestato from the legitimate children and
relatives of his father or mother; nor shall such children or relatives inherit in the same manner from
the illegitimate child.

Applying this rule in Leonardo v. Court of Appeals, this Court declared:

20

. . . even if it is true that petitioner is the child of Sotero Leonardo, still he cannot, by right of
representation, claim a share of the estate left by the deceased Francisca Reyes considering that,
as found again by the Court of Appeals, he was born outside wedlock as shown by the fact that
when he was born, his alleged putative father and mother were not yet married, and what is more,
his alleged father's first marriage was still subsisting. At most, petitioner would be an illegitimate
child who has no right to inherit ab intestato from the legitimate children and relatives of his father,
like the deceased Francisca Reyes.

The reason for this rule was explained in the recent case of Diaz v. Intermediate Appellate Court, thus:
21

Article 992 of the New Civil Code provides a barrier or iron curtain in that it prohibits absolutely a
succession ab intestato between the illegitimate child and the legitimate children and relatives of
the father or mother of said legitimate child. They may have a natural tie of blood, but this is not
recognized by law for the purpose of Article 992. Between the legitimate family and the illegitimate
family there is presumed to be an intervening antagonism and incompatibility. The illegitimate child
is disgracefully looked down upon by the legitimate family; the family is in turn, hated by the
illegitimate child the latter considers the privileged condition of the former, and the resources of
which it is thereby deprived; the former in turn sees in the illegitimate child nothing but the product
of sin, palpable evidence of a blemish broken in life; the law does no more than recognize this truth,
by avoiding further ground of resentment. 22

Indeed, even as an adopted child, Carmelita would still be barred from inheriting from Dominga Revuelta for there
would be no natural kindred ties between them and consequently, no legal ties to bind them either. As aptly pointed
out by Dr. Arturo M. Tolentino:

If the adopting parent should die before the adopted child, the latter cannot represent the former in
the inheritance from the parents or ascendants of the adopter. The adopted child is not related to
the deceased in that case, because the filiation created by fiction of law is exclusively between the
adopter and the adopted. "By adoption, the adopters can make for themselves an heir, but they
cannot thus make one for their kindred. 23

The result is that Carmelita, as the spurious daughter of Vicente de la Puerta, has successional rights to the intestate
estate of her father but not to the estate of Dominga Revuelta. Her claims for support and inheritance should
therefore be filed in the proceedings for the settlement of her own father's
estate and cannot be considered in the probate of Dominga Revuelta's Will.
24

WHEREFORE, the petition is GRANTED and the appealed decision is hereby REVERSED and SET ASIDE, with
costs against the private respondent. It is so ordered.

Narvasa, Gancayco, Griño-Aquino and Medialdea, JJ., concur.

G.R. No. 189776 December 15, 2010

AMELIA P. ARELLANO, represented by her duly appointed guardians, AGNES P. ARELLANO and NONA P.
ARELLANO, Petitioner,
vs.
FRANCISCO PASCUAL and MIGUEL PASCUAL, Respondents.
 DECISION

CARPIO MORALES, J.:

Angel N. Pascual Jr. died intestate on January 2, 1999 leaving as heirs his siblings, namely: petitioner Amelia P.
Arellano who is represented by her daughters1 Agnes P. Arellano (Agnes) and Nona P. Arellano, and respondents
Francisco Pascual and Miguel N. Pascual.2

In a petition for "Judicial Settlement of Intestate Estate and Issuance of Letters of Administration," docketed as
Special Proceeding Case No. M-5034, filed by respondents on April 28, 2000 before the Regional Trial Court (RTC)
of Makati, respondents alleged, inter alia, that a parcel of land (the donated property) located in Teresa Village,
Makati, which was, by Deed of Donation, transferred by the decedent to petitioner the validity of which donation
respondents assailed, "may be considered as an advance legitime" of petitioner.

Respondent’s nephew Victor was, as they prayed for, appointed as Administrator of the estate by Branch 135 of the
Makati RTC.3

Respecting the donated property, now covered in the name of petitioner by Transfer Certificate of Title No. 181889 of
the Register of Deeds of Makati, which respondents assailed but which they, in any event, posited that it "may be
considered as an advance legitime" to petitioner, the trial court, acting as probate court, held that it was precluded
from determining the validity of the donation.

Provisionally passing, however, upon the question of title to the donated property only for the purpose of determining
whether it formed part of the decedent’s estate,4 the probate court found the Deed of Donation valid in light of the
presumption of validity of notarized documents. It thus went on to hold that it is subject to collation following Article
1061 of the New Civil Code which reads:5

Every compulsory heir, who succeeds with other compulsory heirs, must bring into the mass of the estate any
property or right which he may have received from the decedent, during the lifetime of the latter, by way of donation,
or any other gratuitous title in order that it may be computed in the determination of the legitime of each heir, and in
the account of the partition.

The probate court thereafter partitioned the properties of the intestate estate. Thus it disposed:

WHEREFORE, premises considered, judgment is hereby rendered declaring that:

1. The property covered by TCT No. 181889 of the Register of Deeds of Makati as part of the estate of
Angel N. Pascual;

2. The property covered by TCT No. 181889 to be subject to collation;

3. 1/3 of the rental receivables due on the property at the mezzanine and the 3rd floor of Unit 1110 Tanay
St., Makati City form part of the estate of Angel N. Pascual;

4. The following properties form part of the estate of Angel N. Pascual:

a. 1/3 share in the House and Lot at 1110 Tanay St., Rizal Village Makati TCT No. 348341 and 1/3
share in the rental income thereon;

b. 1/3 share in the Vacant Lot with an area of 271 square meters located at Tanay St., Rizal
Village, Makati City, TCT No. 119063;

c. Agricultural land with an area of 3.8 hectares located at Puerta Galera Mindoro covered by OCT
No. P-2159;
 d. Shares of stocks in San Miguel Corporation covered by the following Certificate Numbers:
A0011036, A006144, A082906, A006087, A065796, A11979, A049521, C86950, C63096, C55316,
C54824, C120328, A011026, C12865, A10439, A021401, A007218, A0371, S29239, S40128,
S58308, S69309;

e. Shares of stocks in Paper Industries Corp. covered by the following Certificate Numbers:
S29239, S40128, S58308, S69309, A006708, 07680, A020786, S18539, S14649;

f. ¼ share in Eduardo Pascual’s shares in Baguio Gold Mining Co.;

g. Cash in Banco De Oro Savings Account No. 2 014 12292 4 in the name of Nona Arellano;

i. Property previously covered by TCT No. 119053 now covered by TCT No. 181889, Register of
Deeds of Makati City;

j. Rental receivables from Raul Arellano per Order issued by Branch 64 of the Court on November
17, 1995.

5. AND the properties are partitioned as follows:

a. To heir Amelia P. Arellano-the property covered by TCT No. 181889;

b. To heirs Francisco N. Pascual and Miguel N. Pascual-the real properties covered by TCT Nos.
348341 and 119063 of the Register of Deeds of Makati City and the property covered by OCT No.
2159, to be divided equally between them up to the extent that each of their share have been
equalized with the actual value of the property in 5(a) at the time of donation, the value of which
shall be determined by an independent appraiser to be designated by Amelia P. Arellano, Miguel N.
Pascual and Francisco N. Pascual. If the real properties are not sufficient to equalize the shares,
then Francisco’s and Miguel’s shares may be satisfied from either in cash property or shares of
stocks, at the rate of quotation. The remaining properties shall be divided equally among Francisco,
Miguel and Amelia. (emphasis and underscoring supplied)

Before the Court of Appeals, petitioner faulted the trial court in holding that

. . . THE PROPERTY DONATED TO APPELLANT AMELIA PASCUAL ARELLANO IS PART OF THE ESTATE OF
ANGEL PASCUAL, JR.

II

. . . THE PROPERTY DONATED TO APPELLANT IS SUBJECT TO COLLATION UNDER ARTICLE 1061 OF THE
NEW CIVIL CODE.

III

. . . APPELLEES WHO ARE MERELY COLLATERAL RELATIVES OF DECEASED ANGEL N. PASCUAL JR. AS
HIS COMPULSORY HEIRS ENTITLED TO LEGITIMES.

xxxx

and

V
. . . IN NOT PARTITIONING THE ESTATE OF ANGEL N. PASCUAL JR. EQUALLY AMONG HIS LEGAL OR
INTESTATE HEIRS.6 (underscoring supplied)

By Decision7 of July 20, 2009, the Court of Appeals found petitioner’s appeal "partly meritorious." It sustained the
probate court’s ruling that the property donated to petitioner is subject to collation in this wise:

Bearing in mind that in intestate succession, what governs is the rule on equality of division, We hold that the property
subject of donation inter vivos in favor of Amelia is subject to collation. Amelia cannot be considered a creditor of the
decedent and we believe that under the circumstances, the value of such immovable though not strictly in the
concept of advance legitime, should be deducted from her share in the net hereditary estate. The trial court therefore
committed no reversible error when it included the said property as forming part of the estate of Angel N.
Pascual.8 (citation omitted; emphasis and underscoring supplied) 1avvph!1

The appellate court, however, held that, contrary to the ruling of the probate court, herein petitioner "was able to
submit prima facie evidence of shares of stocks owned by the [decedent] which have not been included in the
inventory submitted by the administrator."

Thus, the appellate court disposed, quoted verbatim:

WHEREFORE, premises considered, the present appeal is hereby PARTLY GRANTED. The Decision dated January
29, 2008 of the Regional Trial Court of Makati City, Branch 135 in Special Proceeding Case No. M-5034 is
hereby REVERSED and SET ASIDE insofar as the order of inclusion of properties of the Intestate Estate of Angel N.
Pascual, Jr. as well as the partition and distribution of the same to the co-heirs are concerned.

The case is hereby REMANDED to the said court for further proceedings in accordance with the disquisitions
herein.9 (underscoring supplied)

Petitioner’s Partial Motion for Reconsideration10 having been denied by the appellate court by Resolution 11 of October
7, 2009, the present petition for review on certiorari was filed, ascribing as errors of the appellate court its ruling

. . . THAT THE PROPERTY DONATED BY ANGEL N. PASCUAL, JR. TO PETITIONER AMELIA PASCUAL
ARELLANO IS PART OF HIS ESTATE AT THE TIME OF HIS DEATH.

II

. . . THAT THE PROPERTY DONATED TO PETITIONER IS SUBJECT TO COLLATION UNDER ARTICLE 1061 OF
THE NEW CIVIL CODE.

III

. . . THAT RESPONDENTS ARE COMPULSORY HEIRS OF THEIR DECEASED BROTHER ANGEL N. PASCUAL
JR. AND ARE ENTITLED TO LEGITIMES.

IV

. . . IN NOT PARTITIONING THE ESTATE OF ANGEL N. PASCUAL, JR. EQUALLY AMONG PETITIONER AND
RESPONDENTS, AS HIS LEGAL OR INTESTATE HEIRS.12 (underscoring supplied)

Petitioners thus raise the issues of whether the property donated to petitioner is subject to collation; and whether the
property of the estate should have been ordered equally distributed among the parties.

On the first issue:

The term collation has two distinct concepts: first, it is a mere mathematical operation by the addition of the value of
donations made by the testator to the value of the hereditary estate; and second, it is the return to the hereditary
estate of property disposed of by lucrative title by the testator during his lifetime. 13

The purposes of collation are to secure equality among the compulsory heirs in so far as is possible, and to
determine the free portion, after finding the legitime, so that inofficious donations may be reduced. 14

Collation takes place when there are compulsory heirs, one of its purposes being to determine the legitime and the
free portion. If there is no compulsory heir, there is no legitime to be safeguarded. 15

The records do not show that the decedent left any primary, secondary, or concurring compulsory heirs. He was only
survived by his siblings, who are his collateral relatives and, therefore, are not entitled to any legitime – that part of
the testator’s property which he cannot dispose of because the law has reserved it for compulsory heirs. 16

The compulsory heirs may be classified into (1) primary, (2) secondary, and (3) concurring. The primary compulsory
heirs are those who have precedence over and exclude other compulsory heirs; legitimate children and descendants
are primary compulsory heirs. The secondary compulsory heirs are those who succeed only in the absence of the
primary heirs; the legitimate parents and ascendants are secondary compulsory heirs. The concurring compulsory
heirs are those who succeed together with the primary or the secondary compulsory heirs; the illegitimate children,
and the surviving spouse are concurring compulsory heirs. 17

The decedent not having left any compulsory heir who is entitled to any legitime, he was at liberty to donate all his
properties, even if nothing was left for his siblings-collateral relatives to inherit. His donation to petitioner, assuming
that it was valid,18 is deemed as donation made to a "stranger," chargeable against the free portion of the
estate.19There being no compulsory heir, however, the donated property is not subject to collation.

On the second issue:

The decedent’s remaining estate should thus be partitioned equally among his heirs-siblings-collateral relatives,
herein petitioner and respondents, pursuant to the provisions of the Civil Code, viz:

Art. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives
shall succeed to the entire estate of the deceased in accordance with the following articles. (underscoring supplied)

Art. 1004. Should the only survivors be brothers and sisters of the full blood, they shall inherit in equal shares.
(emphasis and underscoring supplied)

WHEREFORE, the petition is GRANTED. The Court of Appeals Decision ordering the collation of the property
donated to petitioner, Amelia N. Arellano, to the estate of the deceased Angel N. Pascual, Jr. is set aside.

Let the records of the case be REMANDED to the court of origin, Branch 135 of the Makati Regional Trial Court,
which is ordered to conduct further proceedings in the case for the purpose of determining what finally forms part of
the estate, and thereafter to divide whatever remains of it equally among the parties.

SO ORDERED.