G.R. No.

103554 May 28, 1993

TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO,

AUREA CABALLERO, OSCAR LAROSA, HELEN CABALLERO, SANTOS CABALLERO,
PABLO CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO
ABAPO, represented herein by his Attorney-in-Fact, ARMSTICIA * ABAPO VELANO, and
CONSESO CANEDA, represented herein by his heirs, JESUS CANEDA, NATIVIDAD
CANEDA and ARTURO CANEDA, petitioners, 
vs.
HON. COURT OF APPEALS and WILLIAM CABRERA, as Special Administrator of the
Estate of Mateo Caballero, respondents.

Palma, Palma & Associates for petitioners.

Emilio Lumontad, Jr. for private respondents.

REGALADO, J.:

Presented for resolution by this Court in the present petition for review on certiorari is the issue
of whether or not the attestation clause contained in the last will and testament of the late Mateo
Caballero complies with the requirements of Article 805, in relation to Article 809, of the Civil
Code.

The records show that on December 5, 1978, Mateo Caballero, a widower without any children
and already in the twilight years of his life, executed a last will and testament at his residence in
Talisay, Cebu before three attesting witnesses, namely, Cipriano Labuca, Gregorio Cabando
and Flaviano Toregosa. The said testator was duly assisted by his lawyer, Atty. Emilio
Lumontad, and a notary public, Atty. Filoteo Manigos, in the preparation of that last will.  It was
1

declared therein, among other things, that the testator was leaving by way of legacies and
devises his real and personal properties to Presentacion Gaviola, Angel Abatayo, Rogelio
Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of whom do not
appear to be related to the testator.2

Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed as
Special Proceeding No. 3899-R before Branch II of the then Court of First Instance of Cebu
seeking the probate of his last will and testament. The probate court set the petition for hearing
on August 20, 1979 but the same and subsequent scheduled hearings were postponed for one
reason to another. On May 29, 1980, the testator passed away before his petition could finally
be heard by the probate court.  On February 25, 1981, Benoni Cabrera, on of the legatees
3

named in the will, sough his appointment as special administrator of the testator's estate, the
estimated value of which was P24,000.00, and he was so appointed by the probate court in its
order of March 6, 1981. 4

Thereafter, herein petitioners, claiming to be nephews and nieces of the testator, instituted a
second petition, entitled "In the Matter of the Intestate Estate of Mateo Caballero" and docketed
as Special Proceeding No. 3965-R, before Branch IX of the aforesaid Court of First Instance of
Cebu. On October 18, 1982, herein petitioners had their said petition intestate proceeding
consolidated with Special Proceeding No. 3899-R in Branch II of the Court of First Instance of
Cebu and opposed thereat the probate of the Testator's will and the appointment of a special
administrator for his estate. 5

Benoni Cabrera died on February 8, 1982 hence the probate court, now known as Branch XV of
the Regional Trial Court of Cebu, appointed William Cabrera as special administrator on June
21, 1983. Thereafter, on July 20, 1983, it issued an order for the return of the records of Special
Proceeding No. 3965-R to the archives since the testate proceeding for the probate of the will
had to be heard and resolved first. On March 26, 1984 the case was reraffled and eventually
assigned to Branch XII of the Regional Trial Court of Cebu where it remained until the
conclusion of the probate proceedings. 6

In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners appeared as
oppositors and objected to the allowance of the testator's will on the ground that on the alleged
date of its execution, the testator was already in the poor state of health such that he could not
have possibly executed the same. Petitioners likewise reiterated the issue as to the
genuineness of the signature of the testator therein. 7

On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary public Atty.
Filoteo Manigos, testified that the testator executed the will in question in their presence while
he was of sound and disposing mind and that, contrary to the assertions of the oppositors,
Mateo Caballero was in good health and was not unduly influenced in any way in the execution
of his will. Labuca also testified that he and the other witnesses attested and signed the will in
the presence of the testator and of each other. The other two attesting witnesses were not
presented in the probate hearing as the had died by then. 8

On April 5, 1988, the probate court rendered a decision declaring the will in question as the last
will and testament of the late Mateo Caballero, on the ratiocination that:

. . . The self-serving testimony of the two witnesses of the oppositors cannot

overcome the positive testimonies of Atty. Filoteo Manigos and Cipriano Labuca
who clearly told the Court that indeed Mateo Caballero executed the Last Will
and Testament now marked Exhibit "C" on December 5, 1978. Moreover, the fact
that it was Mateo Caballero who initiated the probate of his Will during his lifetime
when he caused the filing of the original petition now marked Exhibit "D" clearly
underscores the fact that this was indeed his Last Will. At the start, counsel for
the oppositors manifested that he would want the signature of Mateo Caballero in
Exhibit "C" examined by a handwriting expert of the NBI but it would seem that
despite their avowal and intention for the examination of this signature of Mateo
Caballero in Exhibit "C", nothing came out of it because they abandoned the idea
and instead presented Aurea Caballero and Helen Caballero Campo as
witnesses for the oppositors.

All told, it is the finding of this Court that Exhibit "C" is the Last Will and
Testament of Mateo Caballero and that it was executed in accordance with all
the requisites of the law. 9

Undaunted by the said judgment of the probate court, petitioners elevated the case in the Court
of Appeals in CA-G.R. CV No. 19669. They asserted therein that the will in question is null and
void for the reason that its attestation clause is fatally defective since it fails to specifically state
that the instrumental witnesses to the will witnessed the testator signing the will in their
presence and that they also signed the will and all the pages thereof in the presence of the
testator and of one another.

On October 15, 1991, respondent court promulgated its decision   affirming that of the trial
10

court, and ruling that the attestation clause in the last will of Mateo Caballero substantially
complies with Article 805 of the Civil Code, thus:

The question therefore is whether the attestation clause in question may be

considered as having substantialy complied with the requirements of Art. 805 of
the Civil Code. What appears in the attestation clause which the oppositors claim
to be defective is "we do certify that the testament was read by him and the
attestator, Mateo Caballero, has published unto us the foregoing will consisting of
THREE PAGES, including the acknowledgment, each page numbered
correlatively in letters of the upper part of each page, as his Last Will and
Testament, and he has signed the same and every page thereof, on the spaces
provided for his signature and on the left hand margin in the presence of the said
testator and in the presence of each and all of us (emphasis supplied).

To our thinking, this is sufficient compliance and no evidence need be presented

to indicate the meaning that the said will was signed by the testator and by them
(the witnesses) in the presence of all of them and of one another. Or as the
language of the law would have it that the testator signed the will "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 not completely or ideally perfect in accordance with the wordings of
Art. 805 but (sic) the phrase as formulated is in substantial compliance with the
requirement of the law."  11

Petitioners moved for the reconsideration of the said ruling of respondent court, but the same
was denied in the latter's resolution of January 14, 1992,   hence this appeal now before us.
12

Petitioners assert that respondent court has ruled upon said issue in a manner not in accord
with the law and settled jurisprudence on the matter and are now questioning once more, on the
same ground as that raised before respondent court, the validity of the attestation clause in the
last will of Mateo Caballero.

We find the present petition to be meritorious, as we shall shortly hereafter, after some prefatory
observations which we feel should be made in aid of the rationale for our resolution of the
controversy.

1. A will has been defined as a species of conveyance whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree the disposition of his estate after his
death.   Under the Civil Code, there are two kinds of wills which a testator may execute.  the
13 14

first kind is the ordinary or attested will, the execution of which is governed by Articles 804 to
809 of the Code. Article 805 requires that:

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 should 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 witness, it shall be

interpreted to them.

In addition, the ordinary will must be acknowledged before a notary public by a testator and the
attesting witness.  hence it is likewise known as notarial will. Where the attestator is deaf or
15

deaf-mute, Article 807 requires that he must personally read the will, if able to do so. Otherwise,
he should designate two persons who would read the will and communicate its contents to him
in a practicable manner. On the other hand, if the testator is blind, the will should be read to him
twice; once, by anyone of the witnesses thereto, and then again, by the notary public before
whom it is acknowledged.  16

The other kind of will is the holographic will, which Article 810 defines as one that is entirely
written, dated, and signed by the testator himself. This kind of will, unlike the ordinary type,
requires no attestation by witnesses. A common requirement in both kinds of will is that they
should be in writing and must have been executed in a language or dialect known to the
testator. 
17

However, in the case of an ordinary or attested will, its attestation clause need not be written in
a language or dialect known to the testator since it does not form part of the testamentary
disposition. Furthermore, the language used in the attestation clause likewise need not even be
known to the attesting witnesses.   The last paragraph of Article 805 merely requires that, in
18

such a case, the attestation clause shall be interpreted to said witnesses.

An attestation clause refers to that part of an ordinary will whereby the attesting witnesses
certify that the instrument has been executed before them and to the manner of the execution
the same.   It is a separate memorandum or record of the facts surrounding the conduct of
19

execution and once signed by the witnesses, it gives affirmation to the fact that compliance with
the essential formalities required by law has been observed.   It is made for the purpose of
20

preserving in a permanent form a record of the facts that attended the execution of a particular
will, so that in case of failure of the memory of the attesting witnesses, or other casualty, such
facts may still be proved.  21

Under the third paragraph of Article 805, such a clause, the complete lack of which would result
in the invalidity of the will,   should state (1) the number of the pages used upon which the will is
22

written; (2) that the testator signed, or expressly caused another to sign, the will and every page
thereof in the presence of the attesting witnesses; and (3) that the attesting witnesses
witnessed the signing by the testator of the will and all its pages, and that saidwitnesses also
signed the will and every page thereof in the presence of the testator and of one another.
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;  whereas the subscription of the
23

signature of the testator and the attesting witnesses is made for the purpose of authentication
and identification, and thus indicates that the will is the very same instrument executed by the
testator and attested to by the witnesses.24

Further, by attesting and subscribing to the will, the witnesses thereby declare the due
execution of the will as embodied in the attestation clause.  The attestation clause, therefore,
25

provide strong legal guaranties for the due execution of a will and to insure the authenticity
thereof.  As it appertains only to the witnesses and not to the testator, it need be signed only by
26

them.  Where it is left unsigned, it would result in the invalidation of the will as it would be
27

possible and easy to add the clause on a subsequent occasion in the absence of the testator
and its witnesses.28

In its report, the Code Commission commented on the reasons of the law for requiring the
formalities to be followed in the execution of wills, in the following manner:

The underlying and fundamental objectives 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 with respect to the
formalities in the execution of wills. . . .
29

2. An examination of the last will and testament of Mateo Caballero shows that it is comprised of
three sheets all of which have been numbered correlatively, with the left margin of each page
thereof bearing the respective signatures of the testator and the three attesting witnesses. The
part of the will containing the testamentary dispositions is expressed in the Cebuano-Visayan
dialect and is signed at the foot thereof by the testator. The attestation clause in question, on
the other hand, is recited in the English language and is likewise signed at the end thereof by
the three attesting witnesses hereto.  Since it is the proverbial bone of contention, we reproduce
30

it again for facility of reference:

We, the undersigned attesting Witnesses, whose Residences and postal

addresses appear on the Opposite of our respective names, we do hereby certify
that the Testament was read by him and the testator, MATEO CABALLERO; has
published unto us the foregoing Will consisting of THREE PAGES, including the
Acknowledgment, each page numbered correlatively in the letters on the upper
part of each page, as his Last Will and Testament and he has the same and
every page thereof, on the spaces provided for his signature and on the left hand
margin, in the presence of the said testator and in the presence of each and all of
us.

It will be noted that Article 805 requires that the witness should both attest and subscribe to the
will in the presence of the testator and of one another. "Attestation" and "subscription" differ in
meaning. Attestation is the act of senses, while subscription is the act of the hand. The former is
mental, the latter mechanical, and to attest a will is to know that it was published as such, and to
certify the facts required to constitute an actual and legal publication; but to subscribe a paper
published as a will is only to write on the same paper the names of the witnesses, for the sole
purpose of identification. 31

In Taboada vs. Rizal,  we clarified that attestation consists in witnessing the testator's execution
32

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. As it
involves a mental act, there would be no means, therefore, of ascertaining by a physical
examination of the will whether the witnesses had indeed signed in the presence of the testator
and of each other unless this is substantially expressed in the attestation.

It is contended by petitioners that the aforequoted attestation clause, in contravention of the

express requirements of the third paragraph of Article 805 of the Civil Code for attestation
clauses, fails to specifically state the fact that the attesting witnesses the testator sign the will
and all its pages in their presence and that they, the witnesses, likewise signed the will and
every page thereof in the presence of the testator and of each other. We agree.

What is fairly apparent upon a careful reading of the attestation clause herein assailed is the
fact that while it recites that the testator indeed signed the will and all its pages in the presence
of the three attesting witnesses and states as well the number of pages that were used, the
same does not expressly state therein the circumstance that said witnesses subscribed their
respective signatures to the will in the presence of the testator and of each other.

The phrase "and he has signed the same and every page thereof, on the spaces provided for
his signature and on the left hand margin," obviously refers to the testator and not the
instrumental witnesses as it is immediately preceded by the words "as his Last Will and
Testament." On the other hand, although the words "in the presence of the testator and in the
presence of each and all of us" may, at first blush, appear to likewise signify and refer to the
witnesses, it must, however, be interpreted as referring only to the testator signing in the
presence of the witnesses since said phrase immediately follows the words "he has signed the
same and every page thereof, on the spaces provided for his signature and on the left hand
margin." What is then clearly lacking, in the final logical analysis , is the statement that the
witnesses signed the will and every page thereof in the presence of the testator and of one
another.

It is our considered view that the absence of that statement required by law is a fatal defect or
imperfection which must necessarily result in the disallowance of the will that is here sought to
be admitted to probate. Petitioners are correct in pointing out that the aforestated defect in the
attestation clause obviously cannot be characterized as merely involving the form of the will or
the language used therein which would warrant the application of the substantial compliance
rule, as contemplated in the pertinent provision thereon in the Civil Code, to wit:

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 not proved that
the will was in fact executed and attested in substantial compliance with all the
requirements of article 805" (Emphasis supplied.)
While it may be true that the attestation clause is indeed subscribed at the end thereof and at
the left margin of each page by the three attesting witnesses, it certainly cannot be conclusively
inferred therefrom that the said witness affixed their respective signatures in the presence of the
testator and of each other since, as petitioners correctly observed, the presence of said
signatures only establishes the fact that it was indeed signed, but it does not prove that the
attesting witnesses did subscribe to the will in the presence of the testator and of each other.
The execution of a will is supposed to be one act so that where the testator and the witnesses
sign on various days or occasions and in various combinations, the will cannot be stamped with
the imprimatur of effectivity.
33

We believe that the further comment of former Justice J.B.L. Reyes  regarding Article 809,
34

wherein he urged caution in the application of the substantial compliance rule therein, is correct
and should be applied in the case under consideration, as well as to future cases with similar
questions:

. . . 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 theses 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 ours.)

3. We stress once more that under Article 809, the defects and imperfections must only be with
respect to the form of the attestation or the language employed therein. Such defects or
imperfections would not render a will invalid should it be proved that the will was really executed
and attested in compliance with Article 805. In this regard, however, the manner of proving the
due execution and attestation has been held to be limited to merely an examination of the will
itself without resorting to evidence aliunde, whether oral or written.

The foregoing considerations do not apply where the attestation clause totally omits the fact that
the attesting witnesses signed each and every page of the will in the presence of the testator
and of each other.  In such a situation, the defect is not only in the form or language of the
35

attestation clause but the total absence of a specific element required by Article 805 to be
specifically stated in the attestation clause of a will. That is precisely the defect complained of in
the present case since there is no plausible way by which we can read into the questioned
attestation clause statement, or an implication thereof, that the attesting witness did actually
bear witness to the signing by the testator of the will and all of its pages and that said
instrumental witnesses also signed the will and every page thereof in the presence of the
testator and of one another.

Furthermore, the rule on substantial compliance in Article 809 cannot be revoked or relied on by
respondents since it presupposes that the defects in the attestation clause can be cured or
supplied by the text of the will or a consideration of matters apparent therefrom which would
provide the data not expressed in the attestation clause or from which it may necessarily be
gleaned or clearly inferred that the acts not stated in the omitted textual requirements were
actually complied within the execution of the will. In other words, defects must be remedied by
intrinsic evidence supplied by the will itself.
In the case at bar, contrarily, proof of the acts required to have been performed by the attesting
witnesses can be supplied by only extrinsic evidence thereof, since an overall appreciation of
the contents of the will yields no basis whatsoever from with such facts may be plausibly
deduced. What private respondent insists on are the testimonies of his witnesses alleging that
they saw the compliance with such requirements by the instrumental witnesses, oblivious of the
fact that he is thereby resorting to extrinsic evidence to prove the same and would accordingly
be doing by the indirection what in law he cannot do directly.

4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence of views as
to which manner of interpretation should be followed in resolving issues centering on
compliance with the legal formalities required in the execution of wills. The formal requirements
were at that time embodied primarily in Section 618 of Act No. 190, the Code of Civil Procedure.
Said section was later amended by Act No. 2645, but the provisions respecting said formalities
found in Act. No. 190 and the amendment thereto were practically reproduced and adopted in
the Civil Code.

One view advance the liberal or substantial compliance rule. This was first laid down in the case
of Abangan vs. Abangan,  where it was held that the object of the solemnities surrounding the
36

execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills
and testaments and to guarantee their truth and authenticity. Therefore, the laws on this subject
should be interpreted in such a way as to attain these primordial ends. Nonetheless, it was also
emphasized that 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, hence 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. The subsequent cases of Avera vs. Garcia,  Aldaba vs. Roque,  Unson vs.
37 38

Abella,  Pecson vs. Coronel,  Fernandez vs. Vergel de Dios, et al., and Nayve vs. Mojal, et
39 40 41

al.  all adhered to this position.

42

The other view which advocated the rule that statutes which prescribe the formalities that should
be observed in the execution of wills are mandatory in nature and are to be strictly construed
was followed in the subsequent cases of In the Matter of the Estate of Saguinsin,  In re Will of
43

Andrada,  Uy Coque vs. Sioca,  In re Estate of Neumark,  and Sano vs. Quintana.
44 45 46 47

Gumban vs. Gorecho, et al.,  provided the Court with the occasion to clarify the seemingly
48

conflicting decisions in the aforementioned cases. In said case of Gumban, the attestation
clause had failed to state that the witnesses signed the will and each and every page thereof on
the left margin in the presence of the testator. The will in question was disallowed, with these
reasons therefor:

In support of their argument on the assignment of error above-mentioned,

appellants rely on a series of cases of this court beginning with (I)n the Matter of
the (E)state of Saguinsin ([1920], 41 Phil., 875), continuing with In re Will of
Andrada [1921], 42 Phil., 180), Uy Coque vs. Navas L. Sioca [1922], 43 Phil.,
405), and In re Estate of Neumark ([1923], 46 Phil., 841), and ending with Sano
vs. Quintana ([1925], 48 Phil., 506). Appellee counters with the citation of a
series of cases beginning with Abangan vs. Abangan ([1919], 40 Phil., 476),
continuing through Aldaba vs. Roque ([1922], 43 Phil., 378), and Fernandez vs.
Vergel de Dios ([1924], 46 Phil., 922), and culminating in Nayve vs. Mojal and
Aguilar ([1924], 47 Phil., 152). In its last analysis, our task is to contrast and, if
possible, conciliate the last two decisions cited by opposing counsel, namely,
those of Sano vs. Quintana, supra, and Nayve vs. Mojal and Aguilar, supra.

In the case of Sano vs. Quintana, supra, it was decided that an attestation clause
which does not recite that the witnesses signed the will and each and every page
thereof on the left margin in the presence of the testator is defective, and such a
defect annuls the will. The case of Uy Coque vs. Sioca, supra, was cited, but the
case of Nayve vs. Mojal and Aguilar, supra, was not mentioned. In contrast, is
the decision in Nayve vs. Mojal and Aguilar, supra, wherein it was held that the
attestation clause must estate the fact that the testator and the witnesses
reciprocally saw the signing of the will, for such an act cannot be proved by the
mere exhibition of the will, if it is not stated therein. It was also held that the fact
that the testator and the witnesses signed each and every page of the will can be
proved also by the mere examination of the signatures appearing on the
document itself, and the omission to state such evident facts does not invalidate
the will.

It is a habit of courts to reaffirm or distinguish previous cases; seldom do they

admit inconsistency in doctrine. Yet here, unless aided impossible to reconcile
the Mojal and Quintana decisions. They are fundamentally at variance. If we rely
on one, we affirm. If we rely on the other, we reverse.

In resolving this puzzling question of authority, three outstanding points may be

mentioned. In the first place, the Mojal, decision was concurred in by only four
members of the court, less than a majority, with two strong dissenting opinions;
the Quintana decision was concurred in by seven members of the court, a clear
majority, with one formal dissent. In the second place, the Mojal decision was
promulgated in December, 1924, while the Quintana decision was promulgated
in December, 1925; the Quintana decision was thus subsequent in point of time.
And in the third place, the Quintana decision is believed more nearly to conform
to the applicable provisions of the law.

The right to dispose of property by will is governed entirely by statute. The law of
the case is here found in section 61 of the Code of Civil Procedure as amended
by Act No. 2645, and in section 634 of the same Code, as unamended. It is in
part provided in section 61, as amended that "No will . . . shall be
valid . . . unless . . .." It is further provided in the same section that "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." Codal section
634 provides that "The will shall be disallowed in either of the following case: 1.
If not executed and attested as in this Act provided." The law not alone carefully
makes use of the imperative, but cautiously goes further and makes use of the
negative, to enforce legislative intention. It is not within the province of the courts
to disregard the legislative purpose so emphatically and clearly expressed.
 We adopt and reaffirm the decision in the case of Sano vs. Quintana, supra, and,
to the extent necessary, modify the decision in the case of Nayve vs. Mojal and
Aguilar, supra. (Emphases in the original text).

But after the Gumban clarificatory pronouncement, there were decisions of the Court that once
more appeared to revive the seeming diversity of views that was earlier threshed out therein.
The cases of Quinto vs. Morata, Rodriguez vs. Alcala,  Enchevarria vs.
49 50

Sarmiento,  and Testate Estate of Toray  went the way of the ruling as restated in Gumban.
51 52

But De Gala vs. Gonzales, et al.,  Rey vs. Cartagena,  De Ticson vs. De Gorostiza, Sebastian
53 54 55

vs. Panganiban,  Rodriguez vs. Yap,  Grey vs. Fabia,  Leynez vs. Leynez,  Martir vs.
56 57 58 59

Martir,  Alcala vs. De Villa,  Sabado vs.

60 61

Fernandez,  Mendoza vs. Pilapil,   and Lopez vs. Liboro,  veered away from the strict
62 63 64

interpretation rule and established a trend toward an application of the liberal view.

The Code Commission, cognizant of such a conflicting welter of views and of the undeniable
inclination towards a liberal construction, recommended the codification of the substantial
compliance rule, as it believed this rule to be in accord with the modern tendency to give a
liberal approach to the interpretation of wills. Said rule thus became what is now Article 809 of
the Civil Code, with this explanation of the Code Commission:

The present law provides for only one form of executing a will, and that is, in
accordance with the formalities prescribed by Section 618 of the Code of Civil
Procedure as amended by Act No. 2645. The Supreme Court of the Philippines
had previously upheld the strict compliance with the legal formalities and had
even said that the provisions of Section 618 of the Code of Civil Procedure, as
amended regarding the contents of the attestation clause were mandatory, and
non-compliance therewith invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405).
These decisions necessarily restrained the freedom of the testator in disposing of
his property.

However, in recent years the Supreme Court changed its attitude and has
become more liberal in the interpretation of the formalities in the execution of
wills. This liberal view is enunciated in the cases of Rodriguez vs. Yap, G.R. No.
45924, May 18, 1939; Leynez vs. Leynez, G.R. No. 46097, October 18,
1939; Martir vs. Martir, G.R. No. 46995, June 21, 1940; and Alcala vs. Villa, G.R.
No. 47351, April 18, 1941.

In the above mentioned decisions of our Supreme Court, it has practically gone
back to the original provisions of Section 618 of the Code of Civil Procedure
before its amendment by Act No. 2645 in the year 1916. To turn this attitude into
a legislative declaration and to attain the main objective of the proposed Code in
the liberalization of the manner of executing wills, article 829 of the Project is
recommended, which reads:

"Art. 829. 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 829." 65
The so-called liberal rule, the Court said in Gil vs. Murciano,  "does not offer any puzzle or
66

difficulty, nor does it open the door to serious consequences. The later decisions do tell us when
and where to stop; they draw the dividing line with precision. They do not allow
evidence aliunde to fill a void in any part of the document or supply missing details that should
appear in the will itself. They only permit a probe into the will, an exploration into its confines, to
ascertain its meaning or to determine the existence or absence of the requisite formalities of
law. This clear, sharp limitation eliminates uncertainty and ought to banish any fear of dire
results."

It may thus be stated that the rule, as it now stands, is that omissions 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.
67

WHEREFORE, the petition is hereby GRANTED and the impugned decision of respondent
court is hereby REVERSED and SET ASIDE. The court a quo is accordingly directed to
forthwith DISMISS its Special Proceeding No. 3899-R (Petition for the Probate of the Last Will
and Testament of Mateo Caballero) and to REVIVE Special Proceeding No. 3965-R (In the
matter of the Intestate Estate of Mateo Caballero) as an active case and thereafter duly proceed
with the settlement of the estate of the said decedent.
G.R. No. L-38338 January 28, 1985

IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND BIBIANA

ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS DE JESUS, petitioners, 
vs.
ANDRES R. DE JESUS, JR., respondent.

Raul S. Sison Law Office for petitioners.

Rafael Dinglasan, Jr. for heir M. Roxas.

Ledesma, Guytingco Velasco and Associates for Ledesa and A. R. de Jesus.

GUTIERREZ, JR., J.:

This is a petition for certiorari to set aside the order of respondent Hon. Jose C. Colayco,
Presiding Judge Court of First Instance of Manila, Branch XXI disallowing the probate of the
holographic Will of the deceased Bibiana Roxas de Jesus.

The antecedent facts which led to the filing of this petition are undisputed.

After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus, Special
Proceeding No. 81503 entitled "In the Matter of the Intestate Estate of Andres G. de Jesus and
Bibiana Roxas de Jesus" was filed by petitioner Simeon R. Roxas, the brother of the deceased
Bibiana Roxas de Jesus.

On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator. After Letters of
Administration had been granted to the petitioner, he delivered to the lower court a document
purporting to be the holographic Will of the deceased Bibiana Roxas de Jesus. On May 26,
1973, respondent Judge Jose Colayco set the hearing of the probate of the holographic Win on
July 21, 1973.

Petitioner Simeon R. Roxas testified that after his appointment as administrator, he found a
notebook belonging to the deceased Bibiana R. de Jesus and that on pages 21, 22, 23 and 24
thereof, a letter-win addressed to her children and entirely written and signed in the handwriting
of the deceased Bibiana R. de Jesus was found. The will is dated "FEB./61 " and states: "This is
my win which I want to be respected although it is not written by a lawyer. ...

The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro Roxas de
Jesus and Manuel Roxas de Jesus who likewise testified that the letter dated "FEB./61 " is the
holographic Will of their deceased mother, Bibiana R. de Jesus. Both recognized the
handwriting of their mother and positively Identified her signature. They further testified that their
deceased mother understood English, the language in which the holographic Will is written, and
that the date "FEB./61 " was the date when said Will was executed by their mother.
Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate" assailing
the purported holographic Will of Bibiana R. de Jesus because a it was not executed in
accordance with law, (b) it was executed through force, intimidation and/or under duress, undue
influence and improper pressure, and (c) the alleged testatrix acted by mistake and/or did not
intend, nor could have intended the said Will to be her last Will and testament at the time of its
execution.

On August 24, 1973, respondent Judge Jose C. Colayco issued an order allowing the probate of
the holographic Will which he found to have been duly executed in accordance with law.

Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging inter alia that the
alleged holographic Will of the deceased Bibiana R. de Jesus was not dated as required by
Article 810 of the Civil Code. She contends that the law requires that the Will should contain the
day, month and year of its execution and that this should be strictly complied with.

On December 10, 1973, respondent Judge Colayco reconsidered his earlier order and
disallowed the probate of the holographic Will on the ground that the word "dated" has generally
been held to include the month, day, and year. The dispositive portion of the order reads:

WHEREFORE, the document purporting to be the holographic Will of Bibiana

Roxas de Jesus, is hereby disallowed for not having been executed as required
by the law. The order of August 24, 1973 is hereby set aside.

The only issue is whether or not the date "FEB./61 " appearing on the holographic Will of the
deceased Bibiana Roxas de Jesus is a valid compliance with the Article 810 of the Civil Code
which reads:

ART. 810. A person may execute a holographic will which must be entirely
written, dated, and signed by the hand of the testator himself. It is subject to no
other form, and may be made in or out of the Philippines, and need not be
witnessed.

The petitioners contend that while Article 685 of the Spanish Civil Code and Article 688 of the
Old Civil Code require the testator to state in his holographic Win the "year, month, and day of
its execution," the present Civil Code omitted the phrase Año mes y dia and simply requires that
the holographic Will should be dated. The petitioners submit that the liberal construction of the
holographic Will should prevail.

Respondent Luz Henson on the other hand submits that the purported holographic Will is void
for non-compliance with Article 810 of the New Civil Code in that the date must contain the year,
month, and day of its execution. The respondent contends that Article 810 of the Civil Code was
patterned after Section 1277 of the California Code and Section 1588 of the Louisiana Code
whose Supreme Courts had consistently ruled that the required date includes the year, month,
and day, and that if any of these is wanting, the holographic Will is invalid. The respondent
further contends that the petitioner cannot plead liberal construction of Article 810 of the Civil
Code because statutes prescribing the formalities to be observed in the execution of
holographic Wills are strictly construed.

We agree with the petitioner.

This will not be the first time that this Court departs from a strict and literal application of the
statutory requirements regarding the due execution of Wills. We should not overlook the liberal
trend of the Civil Code in the manner of execution of Wills, the purpose of which, in case of
doubt is to prevent intestacy —

The underlying and fundamental objectives permeating the provisions of the law
on wigs in this Project consists in the liberalization of the manner of their
execution with the end in view of giving the testator more freedom in expressing
his last wishes, but with sufficien safeguards and restrictions to prevent the
commission of fraud and the exercise of undue and improper pressure and
influence upon the testator.

This objective is in accord with the modem tendency with respect to the
formalities in the execution of wills. (Report of the Code Commission, p. 103)

In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v. Bustos (27 SCRA

327) he emphasized that:

xxx xxx xxx

... The law has a tender regard for the will of the testator expressed in his last will
and testament on the ground that any disposition made by the testator is better
than that which the law can make. For this reason, intestate succession is
nothing more than a disposition based upon the presumed will of the decedent.

Thus, the prevailing policy is to require satisfaction of the legal requirements in order to guard
against fraud and bad faith but without undue or unnecessary curtailment of testamentary
privilege Icasiano v. Icasiano, 11 SCRA 422). If a Will has been executed in substantial
compliance with the formalities of the law, and the possibility of bad faith and fraud in the
exercise thereof is obviated, said Win should be admitted to probate (Rey v. Cartagena 56 Phil.
282). Thus,

xxx xxx xxx

... More than anything else, the facts and circumstances of record are to be
considered in the application of any given rule. If the surrounding circumstances
point to a regular execution of the wilt and the instrument appears to have been
executed substantially in accordance with the requirements of the law, the
inclination should, in the absence of any suggestion of bad faith, forgery or fraud,
lean towards its admission to probate, although the document may suffer from
some imperfection of language, or other non-essential defect. ... (Leynez v.
Leynez 68 Phil. 745).

If the testator, in executing his Will, attempts to comply with all the requisites, although
compliance is not literal, it is sufficient if the objective or purpose sought to be accomplished by
such requisite is actually attained by the form followed by the testator.

The purpose of the solemnities surrounding the execution of Wills has been expounded by this
Court in Abangan v. Abanga 40 Phil. 476, where we ruled that:
 The object of the solemnities surrounding the execution of wills is to close the
door against bad faith and fraud, to avoid substitution of wills and testaments and
to guaranty their truth and authenticity. ...

In particular, a complete date is required to provide against such contingencies as that of two
competing Wills executed on the same day, or of a testator becoming insane on the day on
which a Will was executed (Velasco v. Lopez, 1 Phil. 720). There is no such contingency in this
case.

We have carefully reviewed the records of this case and found no evidence of bad faith and
fraud in its execution nor was there any substitution of Wins and Testaments. There is no
question that the holographic Will of the deceased Bibiana Roxas de Jesus was entirely written,
dated, and signed by the testatrix herself and in a language known to her. There is also no
question as to its genuineness and due execution. All the children of the testatrix agree on the
genuineness of the holographic Will of their mother and that she had the testamentary capacity
at the time of the execution of said Will. The objection interposed by the oppositor-respondent
Luz Henson is that the holographic Will is fatally defective because the date "FEB./61 "
appearing on the holographic Will is not sufficient compliance with Article 810 of the Civil Code.
This objection is too technical to be entertained.

As a general rule, the "date" in a holographic Will should include the day, month, and year of its
execution. However, when as in the case at bar, there is no appearance of fraud, bad faith,
undue influence and pressure and the authenticity of the Will is established and the only issue is
whether or not the date "FEB./61" appearing on the holographic Will is a valid compliance with
Article 810 of the Civil Code, probate of the holographic Will should be allowed under the
principle of substantial compliance.

WHEREFORE, the instant petition is GRANTED. The order appealed from is REVERSED and
SET ASIDE and the order allowing the probate of the holographic Will of the deceased Bibiana
Roxas de Jesus is reinstated.
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-
1

appellees.

Benjamin C. Santos Law Offices for petitioners.

Rodrigo V. Fontelera for private respondents.

PARAS, J.:

The sole issue in this case is whether or not the alleged holographic will of one Melecio
Labrador is dated, as provided for in Article 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 to quote the first paragraph of the second page of the holographic
1âwphi1

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).
G.R. No. L-14003             August 5, 1960

FEDERICO AZAOLA, petitioner-appellant, 
vs.
CESARIO SINGSON, oppositor-appellee.

F. Lavides and L.B. Alcuaz for appellant.

Vicente J. Cuna and P.S. Singson for appellee.

REYES, J.B.L., J.:

This appeal, taken on points of law from a decision rendered on 15 January 1958 by the Court
of First Instance of Quezon City in its Special Proceedings No. Q-2640, involves the
determination of the quantity of evidence required for the probate of a holographic will.

The established facts are thus summarized in the decision appealed from (Rec. App. pp. 22-24):

"Briefly speaking, the following facts were established by the petitioner; that on
September 9, 1957, Fortunata S. Vda. de Yance died at 13 Luskot, Quezon City, known
to be the last residence of said testatrix; that Francisco Azaola, petitioner herein for
probate of the holographic will, submitted the said holographic will (Exh. C) whereby
Maria Milagros Azaola was made the sole heir as against the nephew of deceased
Cesario Singson; that witness Francisco Azaola testified that he saw the holographic will
(Exh. C) one month, more or less, before the death of the testatrix, as the same was
handed to him and his wife; that the witness testified also that he recognized all the
signatures appearing in the holographic will (Exh. C) as the handwriting of the testatrix
and to reinforce said statement, witness presented the mortgage (Exh. E), the special
power of the attorney (Exh. F), and the general power of attorney (Exh. F-1), besides the
deeds of sale (Exhs. G and G-1) including an affidavit (Exh. G-2), and that there were
further exhibited in court two residence certificates (Exhs. H and H-1) to show the
signatures of the testatrix, for comparison purposes; that said witness, Azaola, testified
that the penmanship appearing in the aforesaid documentary evidence is in the
handwriting of the testatrix as well as the signatures appearing in the aforesaid
documentary evidence is in the handwriting of the testatrix as well as the signatures
appearing therein are the signatures of the testatrix; that said witness, in answer to a
question of his counsel admitted that the holographic will was handed to him by the
testatrix. "apparently it must have been written by her" (t.s.n., p. 11). However, on page
16 on the same transcript of the stenographic notes, when the same witness was asked
by counsel if he was familiar with the penmanship and handwriting of the deceased
Fortunata Vda. de Yance, he answered positively in the affirmative and when he was
asked again whether the penmanship referred to in the previous answer as appearing in
the holographic will (Exh. C) was hers (testatrix'), he answered, "I would definitely say it
is hers"; that it was also established in the proceedings that the assessed value of the
property of the deceased in Luskot, Quezon City, is in the amount of P7,000.00.

The opposition to the probate was on the ground that (1) the execution of the will was procured
by undue and improper pressure and influence on the part of the petitioner and his wife, and (2)
that the testatrix did not seriously intend the instrument to be her last will, and that the same
was actually written either on the 5th or 6th day of August 1957 and not on November 20, 1956
as appears on the will.

The probate was denied on the ground that under Article 811 of the Civil Code, the proponent
must present three witnesses who could declare that the will and the signature are in the writing
of the testatrix, the probate being contested; and because the lone witness presented by the
proponent "did not prove sufficiently that the body of the will was written in the handwriting of
the testatrix."

The proponent appealed, urging: first, that he was not bound to produce more than one witness
because the will's authenticity was not questioned; and second, that Article 811 does not
mandatorily require the production of three witnesses to identify the handwriting and signature
of a holographic will, even if its authenticity should be denied by the adverse party.

Article 811 of the Civil Code of the Philippines is to the following effect:

ART. 811. In the probate of a holographic will, it shall be necessary that at least one
witness who knows the handwriting and signature of the testator explicitly declare that
the will and the signature are in the handwriting of the testator. If the will is contested, at
least three of such witnesses shall be required.

In the absence of any competent witnesses referred to in the preceding paragraph, and
if the court deems it necessary, expert testimony may be resorted to. (691a).

We agree with the appellant that since the authenticity of the will was not contested, he was not
required to produce more than one witness; but even if the genuineness of the holographic will
were contested, we are of the opinion that Article 811 of our present Civil Code can not be
interpreted as to require the compulsory presentation of three witnesses to identify the
handwriting of the testator, under penalty of having the probate denied. Since no witness may
have been present at the execution of a holographic will, none being required by law (Art. 810,
new Civil Code), it becomes obvious that the existence of witness possessing the requisite
qualifications is a matter beyond the control of the proponent. For it is not merely a question of
finding and producing any three witnesses; they must be witnesses "who know the handwriting
and signature of the testator" and who can declare (truthfully, of course, even if the law does not
so express) "that the will and the signature are in the handwriting of the testator". There may be
no available witness of the testator's hand; or even if so familiarized, the witnesses may be
unwilling to give a positive opinion. Compliance with the rule of paragraph 1 of Article 811 may
thus become an impossibility. That is evidently the reason why the second paragraph of Article
811 prescribes that —

in the absence of any competent witness referred to in the preceding paragraph, and if
the court deems it necessary, expert testimony may be resorted to.

As can be seen, the law foresees the possibility that no qualified witness may be found (or what
amounts to the same thing, that no competent witness may be willing to testify to the
authenticity of the will), and provides for resort to expert evidence to supply the deficiency.

It may be true that the rule of this article (requiring that three witnesses be presented if the will is
contested and only one if no contest is had) was derived from the rule established for ordinary
testaments (cf. Cabang vs. Delfinado, 45 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742). But
it can not be ignored that the requirement can be considered mandatory only in the case of
ordinary testaments, precisely because the presence of at least three witnesses at the
execution of ordinary wills is made by law essential to their validity (Art. 805). Where the will is
holographic, no witness need be present (Art. 10), and the rule requiring production of three
witnesses must be deemed merely permissive if absurd results are to be avoided.

Again, under Article 811, the resort to expert evidence is conditioned by the words "if the Court
deem it necessary", which reveal that what the law deems essential is that the Court should be
convinced of the will's authenticity. Where the prescribed number of witnesses is produced and
the court is convinced by their testimony that the ill is genuine, it may consider it unnecessary to
call for expert evidence. On the other hand, if no competent witness is available, or none of
those produced is convincing, the Court may still, and in fact it should, resort to handwriting
experts. The duty of the Court, in fine, is to exhaust all available lines of inquiry, for the state is
as much interested as the proponent that the true intention of the testator be carried into effect.

Commenting on analogous provisions of Article 691 of the Spanish Civil Code of 1889, the
noted Commentator, Mucuis Scaevola (Vol. 12, 2nd Ed., p.421), sagely remarks:

La manera como esta concebida la redaccion del ultimo apartado de dicho precepto
induce la conclusion de que siempre o por lo menos, en la mayor parte de los casos, el
Juez debe acudir al criterio pericial para que le ilustre acerca de la autenticidad del
testamento olografo, aunque ya esten insertas en los autos del expediente las
declaraciones testificales. La prudencia con que el Juez debe de proceder en
resoluciones de transcendencia asi lo exige, y la indole delicada y peligrosa del
testamento olografo lo hace necesario para mayor garantia de todos los interes
comprometidos en aquel.

En efecto, el cotejo pericial de letras puede ser una confirmacion facultativa del dicho
profano de los testigos y un modo de desvanecer las ultimas dudas que pudieran ocurrir
al Juez acerca de la autenticidad que trata de averigaur y declarar. Para eso se ha
escrito la frase del citado ultimo apartado, (siempre que el Juez lo estime conveniente),
haya habido o no testigos y dudaran o no estos respecto de los extremos por que son
preguntados.

El arbitrio judicial en este caso debe formarse con independencia de los sucesos y de
su significacion, para responder debidamente de las resoluciones que haya de dictar.

And because the law leaves it to the trial court if experts are still needed, no unfavourable
inference can be drawn from a party's failure to offer expert evidence, until and unless the court
expresses dissatisfaction with the testimony of the lay witnesses.

Our conclusion is that the rule of the first paragraph of Article 811 of the Civil Code is merely
directory and is not mandatory.

Considering, however, that this is the first occasion in which this Court has been called upon to
construe the import of said article, the interest of justice would be better served, in our opinion,
by giving the parties ample opportunity to adduce additional evidence, including expert
witnesses, should the Court deem them necessary.
In view of the foregoing, the decision appealed from is set aside, and the records ordered
remanded to the Court of origin, with instructions to hold a new trial in conformity with this
opinion. But evidence already on record shall not be retaken. No costs.
This case was certified to this Tribunal by the Court of Appeals for final determination pursuant
to Section 3, Rule 50 of the Rules of Court.

As found by the Court of Appeals:

... On January 11, 1977, appellant filed a petition with the Court of First Instance
of Rizal for the probate of the holographic will of Ricardo B. Bonilla and the
issuance of letters testamentary in her favor. The petition, docketed as Sp. Proc.
No. 8432, was opposed by the appellees Amparo Aranza Bonilla, Wilferine
Bonilla Treyes Expedita Bonilla Frias and Ephraim Bonilla on the following
grounds:

(1) Appellant was estopped from claiming that the deceased left a will by failing
to produce the will within twenty days of the death of the testator as required by
Rule 75, section 2 of the Rules of Court;

(2) The alleged copy of the alleged holographic will did not contain a disposition
of property after death and was not intended to take effect after death, and
therefore it was not a will

(3) The alleged hollographic will itself,and not an alleged copy thereof, must be
produced, otherwise it would produce no effect, as held in Gam v. Yap, 104 Phil.
509; and

(4 ) The deceased did not leave any will, holographic or otherwise, executed and
attested as required by law.

The appellees likewise moved for the consolidation of the case with another case
Sp. Proc. No, 8275). Their motion was granted by the court in an order dated
April 4, 1977.

On November 13, 1978, following the consolidation of the cases, the appellees
moved again to dismiss the petition for the probate of the will. They argued that:

(1) The alleged holographic was not a last will but merely an instruction as to the
management and improvement of the schools and colleges founded by decedent
Ricardo B. Bonilla; and

(2) Lost or destroyed holographic wills cannot be proved by secondary evidence

unlike ordinary wills.

Upon opposition of the appellant, the motion to dismiss was denied by the court
in its order of February 23, 1979.

The appellees then filed a motion for reconsideration on the ground that the order
was contrary to law and settled pronouncements and rulings of the Supreme
Court, to which the appellant in turn filed an opposition. On July 23, 1979, the
 court set aside its order of February 23, 1979 and dismissed the petition for the
probate of the will of Ricardo B. Bonilla. The court said:

... It is our considered opinion that once the original copy of the holographic will is
lost, a copy thereof cannot stand in lieu of the original.

In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in
the matter of holographic wills the law, it is reasonable to suppose, regards the
document itself as the material proof of authenticity of said wills.

MOREOVER, this Court notes that the alleged holographic will was executed on
January 25, 1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the
lapse of more than 14 years from the time of the execution of the will to the death
of the decedent, the fact that the original of the will could not be located shows to
our mind that the decedent had discarded before his death his allegedly missing
Holographic Will.

Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in
which it is contended that the dismissal of appellant's petition is contrary to law and well-settled
jurisprudence.

On July 7, 1980, appellees moved to forward the case to this Court on the ground that the
appeal does not involve question of fact and alleged that the trial court committed the following
assigned errors:

I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC

WILL MAY NOT BE PROVED BY A COPY THEREOF;

II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS
DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL;

III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.

The only question here is whether a holographic will which was lost or cannot be found can be
proved by means of a photostatic copy. Pursuant to Article 811 of the Civil Code, probate of
holographic wills is the allowance of the will by the court after its due execution has been
proved. The probate may be uncontested or not. If uncontested, at least one Identifying witness
is required and, if no witness is available, experts may be resorted to. If contested, at least three
Identifying witnesses are required. However, if the holographic will has been lost or destroyed
and no other copy is available, the will can not be probated because the best and only evidence
is the handwriting of the testator in said will. It is necessary that there be a comparison between
sample handwritten statements of the testator and the handwritten will. But, a photostatic copy
or xerox copy of the holographic will may be allowed because comparison can be made with the
standard writings of the testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled
that "the execution and the contents of a lost or destroyed holographic will may not be proved
by the bare testimony of witnesses who have seen and/or read such will. The will itself must be
presented; otherwise, it shall produce no effect. The law regards the document itself as material
proof of authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may be proved
by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other
similar means, if any, whereby the authenticity of the handwriting of the deceased may be
exhibited and tested before the probate court," Evidently, the photostatic or xerox copy of the
lost or destroyed holographic will may be admitted because then the authenticity of the
handwriting of the deceased can be determined by the probate court.

WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's motion
for reconsideration dated August 9, 1979, of the Order dated July 23, 1979, dismissing her
petition to approve the will of the late Ricardo B. Bonilla, is hereby SET ASIDE.
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.
G.R. No. 76714 June 2, 1994

SALUD TEODORO VDA. DE PEREZ, petitioner, 

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

Natividad T. Perez for petitioner.

Benedicto T. Librojo for private respondents.

QUIASON, J.:

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

We grant the petition.

II

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

On August 23, 1979, Dr. Cunanan executed a last will and testament, bequeathing to his wife
"all the remainder" of his real and personal property at the time of his death "wheresoever
situated" (Rollo, p. 35). In the event he would survive his wife, he bequeathed all his property to
his children and grandchildren with Dr. Rafael G. Cunanan, Jr. as trustee. He appointed his wife
as executrix of his last will and testament and Dr. Rafael G. Cunanan, Jr. as substitute executor.
Article VIII of his will states:

If my wife, EVELYN PEREZ-CUNANAN, and I shall die under such

circumstances that there is not sufficient evidence to determine the order of our
deaths, then it shall be presumed that I predeceased her, and my estate shall be
administered and distributed, in all respects, in accordance with such
presumption (Rollo, p. 41).

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

If my husband, JOSE F. CUNANAN, and I shall die under such circumstances

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

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

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

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

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

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

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

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

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

On June 23, the probate court granted petitioner's motion of May 19, 1983. However, on July
21, the Cunanan heirs filed a motion to nullify the proceedings and to set aside the appointment
of, or to disqualify, petitioner as special administratrix of the estates of Dr. Jose F. Cunanan and
Dr. Evelyn Perez-Cunanan. The motion stated: (1) that being the "brothers and sisters and the
legal and surviving heirs" of Dr. Jose F. Cunanan, they had been "deliberately excluded" in the
petition for the probate of the separate wills of the Cunanan spouses thereby misleading the
Bulacan court to believe that petitioner was the sole heir of the spouses; that such
"misrepresentation" deprived them of their right to "due process in violation of Section 4, Rule
76 of the Revised Rules of Court; (2) that Dr. Rafael G. Cunanan, Jr., the executor of the estate
of the Cunanan spouses, was likewise not notified of the hearings in the Bulacan court; (3) that
the "misrepresentation and concealment committed by" petitioner rendered her unfit to be a
special administratrix; (4) that Dr. Rafael G. Cunanan, Jr. had, by virtue of a verified power of
attorney, authorized his father, 
Dr. Rafael Cunanan, Sr., to be his attorney-in-fact; and (5) that Dr. Rafael Cunanan, Sr. is
qualified to be a regular administrator "as practically all of the subject estate in the Philippines
belongs to their brother, Dr. Jose F. Cunanan" (Records, pp. 118-122). Hence, they prayed: (1)
that the proceedings in the case be declared null and void; (2) that the appointment of petitioner
as special administratrix be set aside; and (3) that Dr. Rafael Cunanan, Sr. be appointed the
regular administrator of the estate of the deceased spouses.

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

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

In their reply, the Cunanan heirs stressed that on November 24, 1982, petitioner and the
Cunanan heirs had entered into an agreement in the United States "to settle and divide equally
the estates," and that under Section 2 of Rule 77 the "court shall fix a time and place for the
hearing and cause notice thereof to be given as in case of an original will presented for
allowance" (Records, pp. 184-185).

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

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

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

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

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

On the same day, Judge de la Llana issued another order, denying the motion of petitioner for
the suspension of the proceedings but gave her 15 days upon arrival in the country within which
to act on the other order issued that same day. Contending that the second portion of the
second order left its finality to the discretion of counsel for petitioner, the Cunanans filed a
motion for the reconsideration of the objectionable portion of the said order so that it would
conform with the pertinent provisions of the Judiciary Reorganization Act of 1980 and the
Interim Rules of Court.

On April 30, 1985, the respondent Judge of Branch 18 of the Regional Trial Court, Malolos, to
which the reprobate case was reassigned, issued an order stating that "(W)hen the last will and
testament . . . was denied probate," the case was terminated and therefore all orders
theretofore issued should be given finality. The same Order amended the February 21, 1984
Order by requiring petitioner to turn over to the estate the inventoried property. It considered the
proceedings for all intents and purposes, closed (Records, 
p. 302).

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

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

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

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

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

However, without waiting for petitioner to adduce the additional evidence, respondent Judge
ruled in his order dated June 20, 1986 that he found "no compelling reason to disturb its ruling
of March 31, 1986" but allowed petitioner to "file anew the appropriate probate proceedings for
each of the testator" (Records, p. 391).

The Order dated June 20, 1986 prompted petitioner to file a second motion for reconsideration
stating that she was "ready to submit further evidence on the law obtaining in the State of New
York" and praying that she be granted "the opportunity to present evidence on what the law of
the State of New York has on the probate and allowance of wills" (Records, p. 393).

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

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

On September 11, 1986, petitioner filed a supplement to the motion for reconsideration,
citing Benigno v. De La Peña, 57 Phil. 305 (1932) (Records, 
p. 411), but respondent Judge found that this pleading had been filed out of time and that the
adverse party had not been furnished with a copy thereof. In her compliance, petitioner stated
that she had furnished a copy of the motion to the counsel of the Cunanan heirs and reiterated
her motion for a "final ruling on her supplemental motion" (Records, p. 421).

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

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

II

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

(a) two certificates of authentication of the respective wills of Evelyn and Jose by
the Consulate General of the Philippines (Exhs. "F" and "G");

(b) two certifications from the Secretary of State of New York and Custodian of
the Great Seal on the facts that Judge Bernard L. Reagan is the Surrogate of the
Country of Onondaga which is a court of record, that his signature and seal of
office are genuine, and that the Surrogate is duly authorized to grant copy of the
respective wills of Evelyn and Jose 
(Exhs. "F-1" and "G-1");

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

(d) the respective wills of Evelyn and Jose (Exhs. "F-3", "F-6" and Exh. "G-3" —
"G-6");
 (e) certificates of Judge Reagan and the Chief Clerk certifying to the
genuineness and authenticity of the exemplified copies of the two wills (Exhs. "F-
7" and "F-7");

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

(g) certifications from the Secretary of State that Judge Reagan is duly
authorized to grant exemplified copies of the decree of probate, letters
testamentary and all proceedings had and proofs duly taken 
(Exhs. "H-1" and "I-1");

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

(i) certification to the effect that it was during the term of Judge Reagan that a
decree admitting the wills to probate had been issued and appointing Rafael G.
Cunanan as alternate executor (Exhs. "H-3" and 
"I-10");

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

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

(l) certificates of Judge Reagan and the Chief Clerk on the genuineness and
authenticity of each other’s signatures in the exemplified copies of the decrees of
probate, letters testamentary and proceedings held in their court (Exhs. "H-6"
and "I-6") (Rollo, pp. 13-16).

Petitioner adds that the wills had been admitted to probate in the Surrogate Court’s Decision of
April 13, 1983 and that the proceedings were terminated on November 29, 1984.

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

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

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

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

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

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

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

A literal application of the Rules should be avoided if they would only result in the delay in the
administration of justice (Acain v. Intermediate Appellate Court, 155 SCRA 100 [1987]; Roberts
v. Leonidas, 129 SCRA 33 [1984]).

What the law expressly prohibits is the making of joint wills either for the testator’s reciprocal
benefit or for the benefit of a third person (Civil Code of the Philippines, Article 818). In the case
at bench, the Cunanan spouses executed separate wills. Since the two wills contain essentially
the same provisions and pertain to property which in all probability are conjugal in nature,
practical considerations dictate their joint probate. As this Court has held a number of times, it
will always strive to settle the entire controversy in a single proceeding leaving no root or branch
to bear the seeds of future litigation (Motoomull v. Dela Paz, 187 SCRA 743 [1990]).

This petition cannot be completely resolved without touching on a very glaring fact — petitioner
has always considered herself the sole heir of 
Dr. Evelyn Perez Cunanan and because she does not consider herself an heir of Dr. Jose F.
Cunanan, she noticeably failed to notify his heirs of the filing of the proceedings. Thus, even in
the instant petition, she only impleaded respondent Judge, forgetting that a judge whose order
is being assailed is merely a nominal or formal party (Calderon v. Solicitor General, 215 SCRA
876 [1992]).

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

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

WHEREFORE, the questioned Order is SET ASIDE. Respondent Judge shall allow petitioner
reasonable time within which to submit evidence needed for the joint probate of the wills of the
Cunanan spouses and see to it that the brothers and sisters of Dr. Jose F. Cunanan are given
all notices and copies of all pleadings pertinent to the probate proceedings.
G.R. No. 169144               January 26, 2011

IN RE: IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RUPERTA

PALAGANAS WITH PRAYER FOR THE APPOINTMENT OF SPECIAL ADMINISTRATOR,
MANUEL MIGUEL PALAGANAS and BENJAMIN GREGORIO PALAGANAS, Petitioners, 
vs.
ERNESTO PALAGANAS, Respondent.

DECISION

ABAD, J.:

This case is about the probate before Philippine court of a will executed abroad by a foreigner
although it has not been probated in its place of execution.

The Facts and the Case

On November 8, 2001 Ruperta C. Palaganas (Ruperta), a Filipino who became a naturalized

United States (U.S.) citizen, died single and childless. In the last will and testament she
executed in California, she designated her brother, Sergio C. Palaganas (Sergio), as the
executor of her will for she had left properties in the Philippines and in the U.S.

On May 19, 2003 respondent Ernesto C. Palaganas (Ernesto), another brother of Ruperta, filed
with the Regional Trial Court (RTC) of Malolos, Bulacan, a petition for the probate of Ruperta’s
will and for his appointment as special administrator of her estate.1 On October 15, 2003,
however, petitioners Manuel Miguel Palaganas (Manuel) and Benjamin Gregorio Palaganas
(Benjamin), nephews of Ruperta, opposed the petition on the ground that Ruperta’s will should
not be probated in the Philippines but in the U.S. where she executed it. Manuel and Benjamin
added that, assuming Ruperta’s will could be probated in the Philippines, it is invalid
nonetheless for having been executed under duress and without the testator’s full
understanding of the consequences of such act. Ernesto, they claimed, is also not qualified to
act as administrator of the estate.

Meantime, since Ruperta’s foreign-based siblings, Gloria Villaluz and Sergio, were on separate
occasions in the Philippines for a short visit, respondent Ernesto filed a motion with the RTC for
leave to take their deposition, which it granted. On April, 13, 2004 the RTC directed the parties
to submit their memorandum on the issue of whether or not Ruperta’s U.S. will may be probated
in and allowed by a court in the Philippines.

On June 17, 2004 the RTC issued an order:2 (a) admitting to probate Ruperta’s last will; (b)
appointing respondent Ernesto as special administrator at the request of Sergio, the U.S.-based
executor designated in the will; and (c) issuing the Letters of Special Administration to Ernesto.

Aggrieved by the RTC’s order, petitioner nephews Manuel and Benjamin appealed to the Court
of Appeals (CA),3arguing that an unprobated will executed by an American citizen in the U.S.
cannot be probated for the first time in the Philippines.
On July 29, 2005 the CA rendered a decision,4 affirming the assailed order of the RTC,5 holding
that the RTC properly allowed the probate of the will, subject to respondent Ernesto’s
submission of the authenticated copies of the documents specified in the order and his posting
of required bond. The CA pointed out that Section 2, Rule 76 of the Rules of Court does not
require prior probate and allowance of the will in the country of its execution, before it can be
probated in the Philippines. The present case, said the CA, is different from reprobate, which
refers to a will already probated and allowed abroad. Reprobate is governed by different rules or
procedures. Unsatisfied with the decision, Manuel and Benjamin came to this Court.

The Issue Presented

The key issue presented in this case is whether or not a will executed by a foreigner abroad
may be probated in the Philippines although it has not been previously probated and allowed in
the country where it was executed.

The Court’s Ruling

Petitioners Manuel and Benjamin maintain that wills executed by foreigners abroad must first be
probated and allowed in the country of its execution before it can be probated here. This, they
claim, ensures prior compliance with the legal formalities of the country of its execution. They
insist that local courts can only allow probate of such wills if the proponent proves that: (a) the
testator has been admitted for probate in such foreign country, (b) the will has been admitted to
probate there under its laws, (c) the probate court has jurisdiction over the proceedings, (d) the
law on probate procedure in that foreign country and proof of compliance with the same, and (e)
the legal requirements for the valid execution of a will.

But our laws do not prohibit the probate of wills executed by foreigners abroad although the
same have not as yet been probated and allowed in the countries of their execution. A foreign
will can be given legal effects in our jurisdiction. Article 816 of the Civil Code states that the will
of an alien who is abroad produces effect in the Philippines if made in accordance with the
formalities prescribed by the law of the place where he resides, or according to the formalities
observed in his country.6

In this connection, Section 1, Rule 73 of the 1997 Rules of Civil Procedure provides that if the
decedent is an inhabitant of a foreign country, the RTC of the province where he has an estate
may take cognizance of the settlement of such estate. Sections 1 and 2 of Rule 76 further state
that the executor, devisee, or legatee named in the will, or any other person interested in the
estate, may, at any time after the death of the testator, petition the court having jurisdiction to
have the will allowed, whether the same be in his possession or not, or is lost or destroyed.

Our rules require merely that the petition for the allowance of a will must show, so far as known
to the petitioner: (a) the jurisdictional facts; (b) the names, ages, and residences of the heirs,
legatees, and devisees of the testator or decedent; (c) the probable value and character of the
property of the estate; (d) the name of the person for whom letters are prayed; and (e) if the will
has not been delivered to the court, the name of the person having custody of it. Jurisdictional
facts refer to the fact of death of the decedent, his residence at the time of his death in the
province where the probate court is sitting, or if he is an inhabitant of a foreign country, the
estate he left in such province.7The rules do not require proof that the foreign will has already
been allowed and probated in the country of its execution.
In insisting that Ruperta’s will should have been first probated and allowed by the court of
California, petitioners Manuel and Benjamin obviously have in mind the procedure for the
reprobate of will before admitting it here. But, reprobate or re-authentication of a will already
probated and allowed in a foreign country is different from that probate where the will is
presented for the first time before a competent court. Reprobate is specifically governed by Rule
77 of the Rules of Court. Contrary to petitioners’ stance, since this latter rule applies only to
reprobate of a will, it cannot be made to apply to the present case. In reprobate, the local court
acknowledges as binding the findings of the foreign probate court provided its jurisdiction over
the matter can be established.

Besides, petitioners’ stand is fraught with impractically.  If the instituted heirs do not have the
1âwphi1

means to go abroad for the probate of the will, it is as good as depriving them outright of their
inheritance, since our law requires that no will shall pass either real or personal property unless
the will has been proved and allowed by the proper court.8

Notably, the assailed RTC order of June 17, 2004 is nothing more than an initial ruling that the
court can take cognizance of the petition for probate of Ruperta’s will and that, in the meantime,
it was designating Ernesto as special administrator of the estate. The parties have yet to
present evidence of the due execution of the will, i.e. the testator’s state of mind at the time of
the execution and compliance with the formalities required of wills by the laws of California. This
explains the trial court’s directive for Ernesto to submit the duly authenticated copy of Ruperta’s
will and the certified copies of the Laws of Succession and Probate of Will of California.

WHEREFORE, the Court DENIES the petition and AFFIRMS the Court of Appeals decision in
CA-G.R. CV 83564 dated July 29, 2005.
G.R. No. L-12767             November 16, 1918

In the matter of the estate of EMIL H. JOHNSON. EBBA INGEBORG JOHNSON, applicant-

appellant,

Hartigan & Welch for applicant and appellant.

Hartford Beaumont for Victor Johnson and others as appellees.
Chas. E. Tenney for Alejandra Ibañez de Johnson, personally and as guardian, 
and for Simeona Ibañez, appellees.

STREET, J.:

On February 4, 1916, Emil H. Johnson, a native of Sweden and a naturalized citizen of the
United States, died in the city of Manila, leaving a will, dated September 9, 1915, by which he
disposed of an estate, the value of which, as estimated by him, was P231,800. This document is
an holographic instrument, being written in the testator's own handwriting, and is signed by
himself and two witnesses only, instead of three witnesses required by section 618 of the Code
of Civil Procedure. This will, therefore, was not executed in conformity with the provisions of law
generally applicable to wills executed by inhabitants of these Islands, and hence could not have
been proved under section 618.

On February 9, 1916, however, a petition was presented in the Court of First Instance of the city
of Manila for the probate of this will, on the ground that Johnson was at the time of his death a
citizen of the State of Illinois, United States of America; that the will was duly executed in
accordance with the laws of that State; and hence could properly be probated here pursuant to
section 636 of the Code of Civil Procedure. This section reads as follows:

Will made here by alien. — A will made within the Philippine Islands by a citizen or
subject of another state or country, which is executed in accordance with the law of the
state or country of which he is a citizen or subject, and which might be proved and
allowed by the law of his own state or country, may be proved, allowed, and recorded in
the Philippine Islands, and shall have the same effect as if executed according to the
laws of these Islands.

The hearing on said application was set for March 6, 1916, and three weeks publication of
notice was ordered in the "Manila Daily Bulletin." Due publication was made pursuant to this
order of the court. On March 6, 1916, witnesses were examined relative to the execution of the
will; and upon March 16th thereafter the document was declared to be legal and was admitted
to probate. At the same time an order was made nominating Victor Johnson and John T. Pickett
as administrators of the estate, with the sill annexed. Shortly thereafter Pickett signified his
desire not to serve, and Victor Johnson was appointed sole administrator.

By the will in question the testator gives to his brother Victor one hundred shares of the
corporate stock in the Johnson-Pickett Rope Company; to his father and mother in Sweden, the
sum of P20,000; to his daughter Ebba Ingeborg, the sum of P5,000; to his wife, Alejandra
Ibañez, the sum of P75 per month, if she remains single; to Simeona Ibañez, spinster, P65 per
month, if she remains single. The rest of the property is left to the testator's five children —
Mercedes, Encarnacion, Victor, Eleonor and Alberto.

The biographical facts relative to the deceased necessary to an understanding of the case are
these: Emil H. Johnson was born in Sweden, May 25, 1877, from which country he emigrated to
the United States and lived in Chicago, Illinois, from 1893 to 1898. On May 9, 1898, at Chicago,
he was married to Rosalie Ackeson, and immediately thereafter embarked for the Philippine
Islands as a soldier in the Army of the United States. As a result of relations between Johnson
and Rosalie Ackeson a daughter, named Ebba Ingeborg, was born a few months after their
marriage. This child was christened in Chicago by a pastor of the Swedish Lutheran Church
upon October 16, 1898.

After Johnson was discharged as a soldier from the service of the United States he continued to
live in the Philippine Islands, and on November 20, 1902, the wife, Rosalie Johnson, was
granted a decree of divorce from him in the Circuit Court of Cook County, Illinois, on the ground
of desertion. A little later Johnson appeared in the United States on a visit and on January 10,
1903, procured a certificate of naturalization at Chicago. From Chicago he appears to have
gone to Sweden, where a photograph, exhibited in evidence in this case, was taken in which he
appeared in a group with his father, mother, and the little daughter, Ebba Ingeborg, who was
then living with her grandparents in Sweden. When this visit was concluded, the deceased
returned to Manila, where he prospered in business and continued to live until his death.

In this city he appears to have entered into marital relations with Alejandra Ibañez, by whom he
had three children, to wit, Mercedes, baptized May 31, 1903; Encarnacion, baptized April 29,
1906; and Victor, baptized December 9, 1907. The other two children mentioned in the will were
borne to the deceased by Simeona Ibañez.

On June 12, 1916, or about three months after the will had been probated, the attorneys for
Ebba Ingeborg Johnson entered an appearance in her behalf and noted an exception to the
other admitting the will to probate. On October 31, 1916, the same attorneys moved the court to
vacate the order of March 16 and also various other orders in the case. On February 20, 1917,
this motion was denied, and from this action of the trial court the present appeal has been
perfected.

As will be discerned, the purpose of the proceeding on behalf of the petitioner is to annul the
decree of probate and put the estate into intestate administration, thus preparing the way for the
establishment of the claim of the petitioner as the sole legitimate heir of her father.

The grounds upon which the petitioner seeks to avoid the probate are four in number and may
be stated, in the same sequence in which they are set forth in the petition, as follows:

(1) Emil H. Johnson was a resident of the city of Manila and not a resident of the State of Illinois
at the time the will in question was executed;

(2) The will is invalid and inadequate to pass real and personal property in the State of Illinois;

(3) The order admitting the will to probate was made without notice to the petitioner; and

(4) The order in question was beyond the jurisdiction of the court.
It cannot of course be maintained that a court of first instance lacks essential jurisdiction over
the probate of wills. The fourth proposition above stated must, accordingly, be interpreted in
relation with the third and must be considered as a corollary deduced from the latter. Moreover,
both the third and fourth grounds stated take precedence, by reason of their more fundamental
implications, over the first two; and a logical exposition of the contentions of the petitioner is
expressed in the two following propositions:

(I) The order admitting the will to probate was beyond the jurisdiction of the court and
void because made without notice to the petitioner;

(II) The judgment from which the petitioner seeks relief should be set aside because the
testator was not a resident of the State of Illinois and the will was not in conformity with
the laws of that State.

In the discussion which is to follow we shall consider the problems arising in this cae in the
order last above indicated. Upon the question, then, of the jurisdiction of the court, it is apparent
from an inspection of the record of the proceedings in the court below that all the steps
prescribed by law as prerequisites to the probate of a will were complied with in every respect
and that the probate was effected in external conformity with all legal requirements. This much
is unquestioned. It is, however, pointed out in the argument submitted in behalf of the petitioner,
that, at the time the court made the order of publication, it was apprised of the fact that the
petitioner lived in the United States and that as daughter and heir she was necessarily
interested in the probate of the will. It is, therefore, insisted that the court should have appointed
a date for the probate of the will sufficiently far in the future to permit the petitioner to be present
either in person or by representation; and it is said that the failure of the court thus to postpone
the probate of the will constitutes an infringement of that provision of the Philippine Bill which
declared that property shall not be taken without due process of law.

On this point we are of the opinion that the proceedings for the probate of the will were regular
and that the publication was sufficient to give the court jurisdiction to entertain the proceeding
and to allow the will to be probated.

As was said in the case of In re Davis (136 Cal., 590, 596), "the proceeding as to the probate of
a will is essentially one in rem, and in the very nature of things the state is allowed a wide
latitude in determining the character of the constructive notice to be given to the world in a
proceeding where it has absolute possession of the res. It would be an exceptional case where
a court would declare a statute void, as depriving a party of his property without due process of
law, the proceeding being strictly in rem, and the res within the state, upon the ground that the
constructive notice prescribed by the statute was unreasonably short."

In that case the petitioner had been domiciled in the Hawaiian Islands at the time of the
testator's death; and it was impossible, in view of the distance and means of communication
then existing, for the petitioner to appear and oppose the probate on the day set for the hearing
in California. It was nevertheless held that publication in the manner prescribed by statute
constituted due process of law. (See Estate of Davis, 151 Cal., 318; Tracy vs. Muir, 151 Cal.,
363.)

In the Davis case (136 Cal., 590) the court commented upon the fact that, under the laws of
California, the petitioner had a full year within which she might have instituted a proceeding to
contest the will; and this was stated as one of the reasons for holding that publication in the
manner provided by statute was sufficient. The same circumstance was commented upon in
O'Callaghan vs. O'Brien (199 U. S., 89), decided in the Supreme Court of the United States.
This case arose under the laws of the State of Washington, and it was alleged that a will had
been there probated without the notice of application for probate having been given as required
by law. It was insisted that this was an infringement of the Fourteenth Amendment of the
Constitution of the United States. This contention was, however, rejected and it was held that
the statutory right to contest the will within a year was a complete refutation of the argument
founded on the idea of a violation of the due process provision.

The laws of these Islands, in contrast with the laws in force in perhaps all of the States of the
American Union, contain no special provision, other than that allowing an appeal in the probate
proceedings, under which relief of any sort can be obtained from an order of a court of first
instance improperly allowing or disallowing a will. We do, however, have a provision of a
general nature authorizing a court under certain circumstances to set aside any judgment,
order, or other proceeding whatever. This provision is found in section 113 of the Code of Civil
Procedure, which reads as follows:

Upon such terms as may be just the court may relieve a party or his legal representative
from a judgment, order or other proceeding taken against him through his mistake,
inadvertence, surprise or excusable neglect; Provided, That application therefor be
made within a reasonable time, but in no case exceeding six months after such
judgment, order, or proceeding was taken.

The use of the word "judgment, order or other proceeding" in this section indicates an intention
on the part of the Legislature to give a wide latitude to the remedy here provided, and in our
opinion its operation is not to be restricted to judgments or orders entered in ordinary
contentious litigation where a plaintiff impleads a defendant and brings him into court by
personal service of process. In other words the utility of the provision is not limited to actions
proper but extends to all sorts of judicial proceedings.

In the second section of the Code of Civil Procedure it is declared that the provisions of this
Code shall be liberally construed to promote its object and to assist the parties in obtaining
speedy justice. We think that the intention thus exhibited should be applied in the interpretation
of section 113; and we hold that the word "party," used in this section, means any person having
an interest in the subject matter of the proceeding who is in a position to be concluded by the
judgment, order, to other proceeding taken.

The petitioner, therefore, in this case could have applied, under the section cited, at any time
within six months for March 16, 1916, and upon showing that she had been precluded from
appearing in the probate proceedings by conditions over which she had no control and that the
order admitting the will to probate had been erroneously entered upon insufficient proof or upon
a supposed state of facts contrary to the truth, the court would have been authorized to set the
probate aside and grant a rehearing. It is no doubt true that six months was, under the
circumstances, a very short period of time within which to expect the petitioner to appear and be
prepared to contest the probate with the proof which she might have desired to collect from
remote countries. Nevertheless, although the time allowed for the making of such application
was inconveniently short, the remedy existed; and the possibility of its use is proved in this case
by the circumstance that on June 12, 1916, she in fact here appeared in court by her attorneys
and excepted to the order admitting the will to probate.
It results that, in conformity with the doctrine announced in the Davis case, above cited, the
proceedings in the court below were conducted in such manner as to constitute due process of
law. The law supplied a remedy by which the petitioner might have gotten a hearing and have
obtained relief from the order by which she is supposed to have been injured; and though the
period within which the application should have been made was short, the remedy was both
possible and practicable.

From what has been said it follows that the order of March 16, 1916, admitting the will of Emil H.
Johnson to probate cannot be declared null and void merely because the petitioner was
unavoidably prevented from appearing at the original hearing upon the matter of the probate of
the will in question. Whether the result would have been the same if our system of procedure
had contained no such provision as that expressed in section 113 is a matter which we need not
here consider.

Intimately connected with the question of the jurisdiction of the court, is another matter which
may be properly discussed at this juncture. This relates to the interpretation to be placed upon
section 636 of the Code of Civil Procedure. The position is taken by the appellant that this
section is applicable only to wills of liens; and in this connection attention is directed to the fact
that the epigraph of this section speaks only of the will made here by an alien and to the further
fact that the word "state" in the body of the section is not capitalized. From this it is argued that
section 636 is not applicable to the will of a citizen of the United States residing in these
Islands.lawphil.net

We consider these suggestions of little weight and are of the opinion that, by the most
reasonable interpretation of the language used in the statute, the words "another state or
country" include the United States and the States of the American Union, and that the operation
of the statute is not limited to wills of aliens. It is a rule of hermeneutics that punctuation and
capitalization are aids of low degree in interpreting the language of a statute and can never
control against the intelligible meaning of the written words. Furthermore, the epigraph, or
heading,, of a section, being nothing more than a convenient index to the contents of the
provision, cannot have the effect of limiting the operative words contained in the body of the
text. It results that if Emil H. Johnson was at the time of his death a citizen of the United States
and of the State of Illinois, his will was provable under this section in the courts of the Philippine
Islands, provided the instrument was so executed as to be admissible to probate under the laws
of the State of Illinois.

We are thus brought to consider the second principal proposition stated at the outset of this
discussion, which raises the question whether the order f probate can be set aside in this
proceeding on the other ground stated in the petition, namely, that the testator was not a
resident of the State of Illinois and that the will was not made in conformity with the laws of that
State.

The order of the Court of First Instance admitting the will to probate recites, among other things:

That upon the date when the will in question was executed Emil H. Johnson was a
citizen of the United States, naturalized in the State of Illinois, County of Cook, and that
the will in question was executed in conformity with the dispositions of the law f the State
of Illinois.
We consider this equivalent to a finding that upon the date of the execution of the will the
testator was a citizen of the State of Illinois and that the will was executed in conformity with the
laws of that State. Upon the last point the finding is express; and in our opinion the statement
that the testator was a citizen of the United States, naturalized in the State of Illinois, should be
taken to imply that he was a citizen of the State of Illinois, as well as of the United States.

The naturalization laws of the United States require, as a condition precedent to the granting of
the certificate of naturalization, that the applicant should have resided at least five years in the
United States and for one year within the State or territory where the court granting the
naturalization papers is held; and in the absence of clear proof to the contrary it should be
presumed that a person naturalized in a court of a certain State thereby becomes a citizen of
that State as well as of the United States.

In this connection it should be remembered that the Fourteenth Amendment to the Constitution
of the United States declares, in its opening words, that all persons naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of the United States and of the State
wherein they reside.

It is noteworthy that the petition by which it is sought to annul the probate of this will does not
assert that the testator was not a citizen of Illinois at the date when the will was executed. The
most that is said on this point is he was "never a resident of the State of Illinois after the year
1898, but became and was a resident of the city of Manila," etc. But residence in the Philippine
Islands is compatible with citizenship in Illinois; and it must be considered that the allegations of
the petition on this point are, considered in their bearing as an attempt to refute citizenship in
Illinois, wholly insufficient.

As the Court of First Instance found that the testator was a citizen of the State of Illinois and that
the will was executed in conformity with the laws of that State, the will was necessarily and
properly admitted to probate. And how is it possible to evade the effect of these findings?

In Section 625 of the Code of Civil Procedure it is declared that "the allowance by the court of a
will of real or personal property shall be conclusive as to its due execution."

The due execution of a will involves conditions relating to a number of matters, such as the age
and mental capacity of the testator, the signing of the document by the testator, or by someone
in his behalf, and the acknowledgment of the instrument by him in the presence of the required
number of witnesses who affix their signatures to the will to attest the act. The proof of all these
requisites is involved in the probate; and as to each and all of them the probate is conclusive.
(Castañeda vs. Alemany, 3 Phil. Rep., 426; Pimentel vs. Palanca, 5 Phil. Rep., 436; Chiong
Joc-Soy vs. Vaño, 8 Phil. Rep., 119; Sanchez vs. Pascual, 11 Phil. Rep., 395;
Montañano vs. Suesa, 14 Phil. Rep., 676.)

Our reported cases do not contain the slightest intimation that a will which has been probated
according to law, and without fraud, can be annulled, in any other proceeding whatever, on
account of any supposed irregularity or defect in the execution of the will or on account of any
error in the action of the court upon the proof adduced before it. This court has never been
called upon to decide whether, in case the probate of a will should be procured by fraud, relief
could be granted in some other proceeding; and no such question is now presented. But it is
readily seen that if fraud were alleged, this would introduce an entirely different factor in the cae.
In Austrua vs. Ventenilla (21 Phil. Rep., 180, 184), it was suggested but not decided that relief
might be granted in case the probate of a will were procured by fraud.

The circumstance that the judgment of the trial court recites that the will was executed in
conformity with the law of Illinois and also, in effect, that the testator was a citizen of that State
places the judgment upon an unassailable basis so far as any supposed error apparent upon
the fact of the judgment is concerned. It is, however, probable that even if the judgment had not
contained these recitals, there would have been a presumption from the admission of the will to
probate as the will of a citizen of Illinois that the facts were as recited in the order of probate.

As was said by this court in the case of Banco Español-Filipino vs. Palanca (37 Phil. Rep., 921),
"There is no principle of law better settled than that after jurisdiction has once been acquired,
every act of a court of general jurisdiction shall be presumed to have been rightly done. This
rule is applied to every judgment or decree rendered in the various stages of the proceedings
from their initiation to their completion (Voorhees vs. United States Bank, 10 Pet., 314; 35 U. S.,
449); and if the record is silent with respect to any fact which must have established before the
court could have rightly acted, it will be presumed that such fact was properly brought to its
knowledge."

The Court of First Instance is a court of original and general jurisdiction; and there is no
difference in its faculties in this respect whether exercised in matters of probate or exerted in
ordinary contentious litigation. The trial court therefore necessarily had the power to determine
the facts upon which the propriety of admitting the will to probate depended; and the recital of
those facts in the judgment was probably not essential to its validity. No express ruling is,
however, necessary on this point.

What has been said effectually disposes of the petition considered in its aspect as an attack
upon the order of probate for error apparent on the face of the record. But the petitioner seeks
to have the judgment reviewed, it being asserted that the findings of the trial court — especially
on the question of the citizenship of the testator — are not supported by the evidence. It needs
but a moment's reflection, however, to show that in such a proceeding as this it is not possible
to reverse the original order on the ground that the findings of the trial court are unsupported by
the proof adduced before that court. The only proceeding in which a review of the evidence can
be secured is by appeal, and the case is not before us upon appeal from the original order
admitting the will to probate. The present proceedings by petition to set aside the order of
probate, and the appeal herein is from the order denying this relief. It is obvious that on appeal
from an order refusing to vacate a judgment it is not possible to review the evidence upon which
the original judgment was based. To permit this would operate unduly to protract the right of
appeal.

However, for the purpose of arriving at a just conception of the case from the point of view of the
petitioner, we propose to examine the evidence submitted upon the original hearing, in
connection with the allegations of the petition, in order to see, first, whether the evidence
submitted to the trial court was sufficient to justify its findings, and, secondly, whether the
petition contains any matter which would justify the court in setting the judgment, aside. In this
connection we shall for a moment ignore the circumstance that the petition was filed after the
expiration of the six months allowed by section 113 of the Code of Civil Procedure.

The principal controversy is over the citizenship of the testator. The evidence adduced upon this
point in the trial court consists of the certificate of naturalization granted upon January 10, 1903,
in the Circuit Court of Cook County, Illinois, in connection with certain biographical facts
contained in the oral evidence. The certificate of naturalization supplies incontrovertible proof
that upon the date stated the testator became a citizen of the United States, and inferentially
also a citizen of said State. In the testimony submitted to the trial court it appears that, when
Johnson first came to the United States as a boy, he took up his abode in the State of Illinois
and there remained until he came as a soldier in the United States Army to the Philippine
Islands. Although he remained in these Islands for sometime after receiving his discharge, no
evidence was adduced showing that at the time he returned to the United States, in the autumn
of 1902, he had then abandoned Illinois as the State of his permanent domicile, and on the
contrary the certificate of naturalization itself recites that at that time he claimed to be a resident
of Illinois.

Now, if upon January 10, 1903, the testator became a citizen of the United States and of the
State of Illinois, how has he lost the character of citizen with respect to either of these
jurisdictions? There is no law in force by virtue of which any person of foreign nativity can
become a naturalized citizen of the Philippine Islands; and it was, therefore, impossible for the
testator, even if he had so desired, to expatriate himself from the United States and change his
political status from a citizen of the United States to a citizen of these Islands. This being true, it
is to be presumed that he retained his citizenship in the State of Illinois along with his status as
a citizen of the United States. It would be novel doctrine to Americans living in the Philippine
Islands to be told that by living here they lose their citizenship in the State of their naturalization
or nativity.

We are not unmindful of the fact that when a citizen of one State leaves it and takes up his
abode in another State with no intention of returning, he immediately acquires citizenship in the
State of his new domicile. This is in accordance with that provision of the Fourteenth
Amendment to the Constitution of the United States which says that every citizen of the United
States is a citizen of the State where in he resides. The effect of this provision necessarily is
that a person transferring his domicile from one State to another loses his citizenship in the
State of his original above upon acquiring citizenship in the State of his new abode. The
acquisition of the new State citizenship extinguishes the old. That situation, in our opinion, has
no analogy to that which arises when a citizen of an American State comes to reside in the
Philippine Islands. Here he cannot acquire a new citizenship; nor by the mere change of
domicile does he lose that which he brought with him.

The proof adduced before the trial court must therefore be taken as showing that, at the time the
will was executed, the testator was, as stated in the order of probate, a citizen of the State of
Illinois. This, in connection with the circumstance that the petition does not even so much as
deny such citizenship but only asserts that the testator was a resident of the Philippine Islands,
demonstrates the impossibility of setting the probate aside for lack of the necessary citizenship
on the part of the testator. As already observed, the allegation of the petition on this point is
wholly insufficient to justify any relief whatever.

Upon the other point — as to whether the will was executed in conformity with the statutes of
the State of Illinois — we note that it does not affirmatively appear from the transaction of the
testimony adduced in the trial court that any witness was examined with reference to the law of
Illinois on the subject of the execution of will. The trial judge no doubt was satisfied that the will
was properly executed by examining section 1874 of the Revised Statutes of Illinois, as
exhibited in volume 3 of Starr & Curtis's Annotated Illinois Statutes, 2nd ed., p. 426; and he may
have assumed that he could take judicial notice of the laws of Illinois under section 275 of the
Code of Civil Procedure. If so, he was in our opinion mistaken. that section authorizes the courts
here to take judicial notice, among other things, of the acts of the legislative department of the
United States. These words clearly have reference to Acts of the Congress of the United States;
and we would hesitate to hold that our courts can, under this provision, take judicial notice of the
multifarious laws of the various American States. Nor do we think that any such authority can be
derived from the broader language, used in the same action, where it is said that our courts may
take judicial notice of matters of public knowledge "similar" to those therein enumerated. The
proper rule we think is to require proof of the statutes of the States of the American Union
whenever their provisions are determinative of the issues in any action litigated in the Philippine
courts.

Nevertheless, even supposing that the trial court may have erred in taking judicial notice of the
law of Illinois on the point in question, such error is not now available to the petitioner, first,
because the petition does not state any fact from which it would appear that the law of Illinois is
different from what the court found, and, secondly, because the assignment of error and
argument for the appellant in this court raises no question based on such supposed error.
Though the trial court may have acted upon pure conjecture as to the law prevailing in the State
of Illinois, its judgment could not be set aside, even upon application made within six months
under section 113 of the Code of Civil procedure, unless it should be made to appear
affirmatively that the conjecture was wrong. The petitioner, it is true, states in general terms that
the will in question is invalid and inadequate to pass real and personal property in the State of
Illinois, but this is merely a conclusion of law. The affidavits by which the petition is
accompanied contain no reference to the subject, and we are cited to no authority in the
appellant's brief which might tent to raise a doubt as to the correctness of the conclusion of the
trial court. It is very clear, therefore, that this point cannot be urged as of serious moment.

But it is insisted in the brief for the appellant that the will in question was not properly admissible
to probate because it contains provisions which cannot be given effect consistently with the laws
of the Philippine Islands; and it is suggested that as the petitioner is a legitimate heir of the
testator she cannot be deprived of the legitime to which she is entitled under the law governing
testamentary successions in these Islands. Upon this point it is sufficient to say that the probate
of the will does not affect the intrinsic validity of its provisions, the decree of probate being
conclusive only as regards the due execution of the will. (Code of Civil Procedure, secs. 625,
614; Sahagun vs. De Gorostiza, 7 Phil. Rep., 347, 349; Chiong Joc-Soy vs. Vaño, 8 Phil. Rep.,
119, 121; Limjuco vs. Ganara, 11 Phil. Rep., 393, 395.)

If, therefore, upon the distribution of this estate, it should appear that any legacy given by the
will or other disposition made therein is contrary to the law applicable in such case, the will must
necessarily yield upon that point and the law must prevail. Nevertheless, it should not be
forgotten that the intrinsic validity of the provisions of this will must be determined by the law of
Illinois and not, as the appellant apparently assumes, by the general provisions here applicable
in such matters; for in the second paragraph of article 10 of the Civil Code it is declared that
"legal and testamentary successions, with regard to the order of succession, as well as to the
amount of the successional rights and to the intrinsic validity of their provisions, shall be
regulated by the laws of the nation of the person whose succession is in question, whatever
may be the nature of the property and the country where it may be situate."

From what has been said, it is, we think, manifest that the petition submitted to the court below
on October 31, 1916, was entirely insufficient to warrant the setting aside of the other probating
the will in question, whether said petition be considered as an attack on the validity of the
decree for error apparent, or whether it be considered as an application for a rehearing based
upon the new evidence submitted in the affidavits which accompany the petition. And in this
latter aspect the petition is subject to the further fatal defect that it was not presented within the
time allowed by law.

It follows that the trial court committed no error in denying the relief sought. The order appealed
from is accordingly affirmed with costs. So ordered.
G.R. No. L-2200             August 2, 1950

In re Will of Victor Bilbao. RAMON N. BILBAO, petitioner-appellant, 

vs.
DALMACIO BILBAO, CLEOFAS BILBAO, EUSEBIA BILBAO, CATALINA BILBAO,
FILEMON ABRINGE and FRANCISCO ACADEMIA, oppositors-appellee.

Pedro Basa, Lamberto Macias and Francisco R. Capistrano for appellant.

Perpetuo A. Sandiong and Quinciano Vailoces for appellees.

MONTEMAYOR, J.:

This is an appeal from a decision of the Court of First Instance of Negros Oriental denying the
petition for admission to probate of the last will and testament of Victor S. Bilbao who died on
July 13, 1943, which petition was filed by his widow and cotestator Ramona M. Navarro.

The will in question was executed on October 6, 1931, on a single page or sheet by the
deceased Victor Bilbao jointly with his wife Ramona M. Navarro. The two testators in their
testament directed that "all of our respective private properties both real and personal, and all of
our conjugal properties, and any other property belonging to either or both of us, be given and
transmitted to anyone or either of us, who may survive the other, or who may remain the
surviving spouse of the other."

The petition for probate was opposed by one Filemon Abringe, a near relative of the deceased,
among other grounds, that the alleged will was executed by the husband and wife for their
reciprocal benefit and therefore not valid, and that it was not executed and attested to as
required by law. After hearing, the trial court found the will to have been executed conjointly by
the deceased husband and wife for their reciprocal benefit, and that a will of that kind is neither
contemplated by Act No. 190, known as the Code of Civil Procedure nor permitted by article 669
of the Civil Code which provides:

Two or more persons cannot make a will conjointly or in the same instrument, either for
their reciprocal benefit or for the benefit of a third person.

The only assignment of error made in the appeal is that "the lower court erred in not finding that
a joint and reciprocal will particularly between husband and wife is valid under the present law."
The thesis of the appellant is, that "Chapter XXXI, particularly sections 614, 618, Act 190,
appears to be a complete enactment on the subject of execution of wills and may thus be
regarded as the expression of the whole law thereon, and that it must be deemed to have
impliedly repealed the provision of the Civil Code (Title III, Chapter I) on the matter ;" that
inasmuch as the present law on wills as embodied in the Code of Civil Procedure has been
taken from American law, it should be interpreted in accordance with the said law, and because
joint and reciprocal wills are neither regarded as invalid nor on the contrary they are allowed,
then article 669 of the Civil Code prohibiting the execution of joint wills whether reciprocal or for
the benefit of a third party should be considered as having been repealed and superseded by
the new law.

We have made a rather extensive study of the cases decided by our Supreme Court covering
the field of wills, with particular attention to any reference to or ruling on article 669 of the Civil
Code but we have failed to find any case wherein that particular codal provision has been
discussed or applied, declaring it either repealed or still in force. The sole question and issue
squarely raised in this appeal is, therefore one of first impression and naturally we are
constrained to act and to proceed with care and caution, realizing the importance and far-
reaching effects of any doctrine to be laid down by us in the present case.

We cannot agree to the contention of the appellant that the provisions of the Code of Civil
Procedure on wills have completely superseded Chapter I, Title III of the Civil Code on the same
subject matter, resulting in the complete repeal of said Civil Code provisions. In the study we
have made of this subject, we have found a number of cases decided by this court wherein
several articles of the Civil Code regarding wills have not only been referred to but have also
been applied side by side with the provisions of the Code of Civil Procedure.

In the case of in the matter of the will Kabigting (14 Phil., 463), where the will was executed in
the year 1908, articles 662 and 663 of the Civil Code regarding capacity and incapacity of
persons to dispose by will, have been cited and applied together with section 618 of the Code of
Civil Procedure regarding requisites of wills.

In the case of Torres and Lopez De Bueno vs. Lopez (48 Phil., 772), article 666 of the Civil
Code regarding mental capacity of the testator has been cited and applied together with section
614 and 634 of the Code of Civil Procedure regarding a will executed in 1924.

In the case of Marin vs. Nacianceno (19 Phil., 238), article 667 of the Civil Code was cited in the
dissenting opinion of Mr. Justice Torres.

In the cases of Postigo vs. Borjal (13 Phil., 240); In re Estate of Calderon (26 Phil., 333);
Natividad vs. Gabino (36 Phil., 663) wherein the wills involved had been executed after the
enactment of the Code of Civil Procedure, particularly the sections regarding wills, article 675 of
the Civil Code regarding interpretation of wills was cited and applied.

In the case of Samson vs. Naval (41 Phil., 838), article 739 of the Civil Code regarding
revocation of wills has been applied in harmony with section 623 of the Code of Civil Procedure.
The will involved was executed in 1915 when the Code of Civil Procedure was already in force.

The above-cited authorities all go to show that it is not exactly correct to say that the provisions
of the Code of Civil Procedure regarding wills completely cover the subject matter and therefore
have superseded the provisions of the Civil Code on the point.

It is also contended that in the case of Macrohon Ong Ham vs. Saavedra (51 Phil., 267) a will
executed in the year 1923, which was made jointly by husband and wife in the same instrument,
was admitted to probate by the Court of First Instance of Zamboanga and the decision was
affirmed by this court, thereby proving that this tribunal has disregarded the prohibition
regarding the execution of wills conjointly under article 669 of the Civil Code, meaning that said
article has already been repealed. After examining said case we find the contention untenable.
It is true that the will already described was allowed probate by the trial court, but there was no
appeal from the order approving the will on the ground of its validity, but only on the manner the
properties involved were to be distributed or otherwise disposed of. The Supreme Court never
touched this point of invalidity nor the applicability of article 669 of the Civil Code, but merely
ruled that a testator may die both testate and intestate, depending upon the properties sought to
be disposed of by him and those to be inherited by his heirs on intestate succession when not
covered by the will. As a rule this Tribunal does not pass upon the legality, enforceability, or
applicability of a law unless that the point is raised and put in issue, and it is necessary to rule
upon it in order to determine the case.

The provision of article 669 of the Civil Code prohibiting the execution of a will by two or more
persons conjointly or in the same instrument either for their reciprocal benefit or for the benefit
of a third person, is not unwise and is not against public policy. The reason for this provision,
especially as regards husbands and wife is that when a will is made jointly or in the same
instrument, the spouse who is more aggressive, stronger in will or character and dominant is
liable to dictate the terms of the will for his or her own benefit or for that of third persons whom
he or she desires to favor. And, where the will is not only joint but reciprocal, either one of the
spouses who may happen to be unscrupulous, wicked, faithless, or desperate, knowing as he or
she does the terms of the will whereby the whole property of the spouses both conjugal and
paraphernal goes to the survivor, may be tempted to kill or dispose of the other.

Considering the wisdom of the provisions of this article 669 and the fact that it has not been
repealed, at least not expressly, as well as the consideration that its provisions are not
incompatible with those of the Code of Civil Procedure on the subject of wills, we believe and
rule that said article 669 of the Civil Code is still in force. And we are not alone in this opinion.
Mr. Justice Willard as shown by his notes on the Civil Code, on page 18 believes that this article
669 is still in force. Sinco and Capistrano in their work on the Civil Code, Vol. II, page 33,
favorably cite Justice Willard's opinion that this article is still in force. Judge Camus in his book
on the Civil Code does not include this article among those he considers repealed. Lastly, we
find that this article 669 has been reproduced word for word in article 818 of the New Civil Code
(Republic Act No. 386). The implication is that the Philippine Legislature that passed this Act
and approved the New Civil Code, including the members of the Code Commission who
prepared it, are of the opinion that the provisions of article 669 of the old Civil Code are not
incompatible with those of the Code of Civil Procedure.

In the case of Testate estate of the late Bernabe Rodriguez (CA-G.R. No. 1627 -R, July 1, 1948;
46 Off. Gaz., reference to this article 669 of the Civil Code, though indirectly. In the will involved
therein, the testator Rodriguez instituted his wife his universal heir and the latter in her separate
will equally instituted her husband Rodriguez as her universal heir; in other words they were
reciprocal beneficiaries in their respective separate wills. Opposition to the probate of the will of
Rodriguez was base on the prohibition contained in article 669 of the Civil Code. The Court of
Appeals said that what the law prohibits under said article is two or more persons making a will
conjointly or in the same instrument and not reciprocity in separate wills.

In conclusion, we believe and hold that the provision of the Code of Civil procedure regarding
wills have not repealed all the articles of the old Civil Code on the same subject matter, and that
article 669 of the Civil Code is not incompatible or inconsistent with said provision of the Article
669 of the Civil Code is still in force. In view of the foregoing, the decision appealed form, is
hereby affirmed, with costs.
G.R. No. L-2071             September 19, 1950

Testate estate of Isabel V. Florendo, deceased. TIRSO DACANAY, petitioner-appellant, 

vs.
PEDRO V. FLORENDO, ET AL., oppositor-appellees.

Sotto and Sotto for appellant.

Alafriz and Alafriz for appellees.

OZAETA, J.:

This is a special proceeding commenced in the Court of First Instance of La Union to probate a
joint and reciprocal will executed by the spouses Isabel V. Florendo and Tirso Dacanay on
October 20, 1940. Isabel V. Florendo having died, her surviving spouse Tirso Dacanay is
seeking to probate said joint and reciprocal will, which provides in substance that whoever of the
spouses, joint testators, shall survive the other, shall inherit all the properties of the latter, with
an agreement as to how the surviving spouse shall dispose of the properties in case of his or
her demise.

The relatives of the deceased Isabel V. Florendo opposed the probate of said will on various
statutory grounds.

Before hearing the evidence the trial court, after requiring and receiving from counsel for both
parties written arguments on the question of whether or not the said joint and reciprocal will may
be probated in view of article 669 of the Civil Code, issued an order dismissing the petition for
probate on the ground that said will is null and void ab initio as having been executed in
violation of article 669 of the Civil Code. From that order the proponent of the will has appealed.

Article 669 of the Civil Code reads as follows:

ART. 669. Two or more persons cannot make a will conjointly or in the same instrument,
either for their reciprocal benefit or for the benefit of a third person.

We agree with appellant's view, supported by eminent commentators, that the prohibition of
article 669 of the Civil Code is directed against the execution of a joint will, or the expression by
two or more testators of their wills in a single document and by one act, rather than against
mutual or reciprocal wills, which may be separately executed. Upon this premise, however,
appellant argues that article 669 of the Civil Code has been repealed by Act. No. 190, which he
claims provides for and regulates the extrinsic formalities of wills, contending that whether two
wills should be executed conjointly or separately is but a matter of extrinsic formality.

The question now raised by appellant has recently been decided by this court adversely to him
in In re Will of Victor Bilbao, supra, p. 144. It appears in that case that on October 6, 1931, the
spouses Victor Bilbao and Ramona M. Navarro executed a will conjointly, whereby they directed
that "all of our respective private properties both real and personal, and all of our conjugal
properties, and any other property belonging to either or both of us, be given and transmitted to
anyone or either of us, who may survive the other, or who may remain the surviving spouse of
the other." That will was denied probate by the Court of First Instance of Negros Oriental on the
ground that it was prohibited by article 669 of the Civil Code. The surviving spouse as proponent
of the joint will also contended that said article of the Civil Code has been repealed by sections
614 and 618 of the Code of Civil Procedure, Act No. 190. In deciding that question this court,
speaking through Mr. Justice Montemayor, said:

We cannot agree to the contention of the appellant that the provisions of the Code of
Civil Procedure on wills have completely superseded Chapter I, Title III of the Civil Code
on the same subject matter, resulting in the complete repeal of said Civil Code
provisions. In the study we have made of this subject, we have found a number of cases
decided by this court wherein several articles of the Civil Code regarding wills have not
only been referred to but have also been applied side by side with the provisions of the
Code of Civil Procedure.

xxx     xxx     xxx

The provision of article 669 of the Civil Code prohibiting the execution of a will by two or
more persons conjointly or in the same instrument either for their reciprocal benefit or for
the benefit of a third person, is not unwise and is not against public policy. The reason
for this provision, especially as regards husband and wife, is that when a will is made
jointly or in the same instrument, the spouse who is more aggressive, stronger in will or
character and dominant is liable to dictate the terms of the will for his or her own benefit
or for that of third persons whom he or she desires to favor. And, where the will is not
only joint but reciprocal, either one of the spouses who may happen to be unscrupulous,
wicked, faithless or desperate, knowing as he or she does the terms of the will whereby
the whole property of the spouses both conjugal and paraphernal goes to the survivor,
may be tempted to kill or dispose of the other.

Considering the wisdom of the provisions of this article 669 and the fact that it has not
been repealed, at least not expressly, as well as the consideration that its provisions are
not incompatible with those of the Code of Civil Procedure on the subject of wills, we
believe and rule that said article 669 of the Civil Code is still in force. And we are not
alone in this opinion. Mr. Justice Willard as shown by his Notes on the Civil Code, on
page 48 believes that this article 669 is still in force. Sinco and Capistrano in their work
on the Civil Code, Vol. II, page 33, favorably cite Justice Willard's opinion that this article
is still in force. Judge Camus in his book on the Civil Code does not include this article
among those he considers repealed. Lastly, we find that this article 669 has been
reproduced word for word in article 818 of the New Civil Code (Republic Act No. 386).
The implication is that the Philippine Legislature that passed this Act and approved the
New Civil Code, including the members of the Code Commission who prepared it, are of
the opinion that the provisions of article 669 of the old Civil Code are not incompatible
with those of the Code of Civil Procedure. In view of the foregoing, the order appealed
from is affirmed, with costs against the appellant.
G.R. No. L-37453 May 25, 1979

RIZALINA GABRIEL GONZALES, petitioner, 

vs.
HONORABLE COURT OF APPEALS and LUTGARDA SANTIAGO, respondents.

Francisco D. Rilloraza, Jr. for petitioners.

Angel A. Sison for private respondent.

GUERRERO, J.:

This is a petition for review of the decision of the Court of Appeals, First Division,  promulgated
1

on May 4, 1973 in CA G.R. No. 36523-R which reversed the decision of the Court of First
Instance of Rizal dated December 15, 1964 and allowed the probate of the last will and
testament of the deceased Isabel Gabriel. *

It appears that on June 24, 1961, herein private respondent Lutgarda Santiago filed a petition
with the Court of First Instance of Rizal docketed as Special Proceedings No. 3617, for the
probate of a will alleged to have been executed by the deceased Isabel Gabriel and designating
therein petitioner as the principal beneficiary and executrix.

There is no dispute in the records that the late Isabel Andres Gabriel died as a widow and
without issue in the municipality of Navotas, province of Rizal her place of residence, on June 7,
1961 at the age of eighty-five (85), having been born in 1876. It is likewise not controverted that
herein private respondent Lutgarda Santiago and petitioner Rizalina Gabriel Gonzales are
nieces of the deceased, and that private respondent, with her husband and children, lived with
the deceased at the latters residence prior an- d up to the time of her death.

The will submitted for probate, Exhibit "F", which is typewritten and in Tagalog, appears to have
been executed in Manila on the 15th day of April, 1961, or barely two (2) months prior to the
death of Isabel Gabriel. It consists of five (5) pages, including the pages whereon the attestation
clause and the acknowledgment of the notary public were written. The signatures of the
deceased Isabel Gabriel appear at the end of the will on page four and at the left margin of all
the pages. The attestation clause, which is found on page four, reads as follows:

PATUNAY NG MGA SAKSI

Kaming mga nakalagdang mga saksi o testigo na ang aming mga tinitirahan ay
nakasulat sa gawing kanan at kahilira ng aming mga pangalan sa ibaba nito, ay
pagpapatutuo na ipinakilala ipinaalam at ipinahayag sa amin ni Isabel Gabriel na
ang kasulatang ito na binubuo ng Limang Dahon (Five Pages) pati na ang
dahong ito, na siya niyang TESTAMENTO AT HULING HABILIN, ngayong ika 15
ng Abril, 1961, ay nilagdaan ng nasabing testadora na si Isabel Gabriel ang
nasabing testamento sa ibaba o ilalim ng kasulatan na nasa ika apat na dahon
(page four) at nasa itaas ng patunay naming ito, at sa kaliwang panig ng lahat at
 bawat dahon (and on the left hand margin of each and every page), sa harap ng
lahat at bawat isa sa amin, at kami namang mga saksi ay lumagda sa harap ng
nasabing testadora, at sa harap ng lahat at bawat isa sa amin, sa ilalim ng
patunay ng mga saksi at sa kaliwang panig ng lahat at bawa't dahon ng
testamentong ito.

At the bottom thereof, under the heading "Pangalan", are written the signatures of Matilde D.
Orobia, Celso D. Gimpaya and Maria R. Gimpaya, and opposite the same, under the heading
"Tirahan", are their respective places of residence, 961 Highway 54, Philamlife, for Miss Orobia,
and 12 Dagala St., Navotas, Rizal, for the two Gimpayas. Their signatures also appear on the
left margin of all the other pages. The WW is paged by typewritten words as follows: "Unang
Dahon" and underneath "(Page One)", "Ikalawang Dahon" and underneath "(Page Two)", etc.,
appearing at the top of each page.

The will itself provides that the testatrix desired to be buried in the Catholic Cemetery of
Navotas, Rizal in accordance with the rites of the Roman Catholic Church, all expenses to be
paid from her estate; that all her obligations, if any, be paid; that legacies in specified amounts
be given to her sister, Praxides Gabriel Vda. de Santiago, her brother Santiago Gabriel, and her
nephews and nieces, Benjamin, Salud, Rizalina (herein petitioner), Victoria, Ester, Andres, all
surnamed Gabriel, and Evangeline, Rudyardo Rosa, Andrea, Marcial, Numancia, Verena an
surnamed Santiago. To herein private respondent Lutgarda Santiago, who was described in the
will by the testatrix as "aking mahal na pamangkin na aking pinalaki, inalagaan at minahal na
katulad ng isang tunay na anak" and named as universal heir and executor, were bequeathed
all properties and estate, real or personal already acquired, or to be acquired, in her testatrix
name, after satisfying the expenses, debts and legacies as aforementioned.

The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner, assailing the
document purporting to be the will of the deceased on the following grounds:

1. that the same is not genuine; and in the alternative

2. that the same was not executed and attested as required by law;

3. that, at the time of the alleged execution of the purported wilt the decedent
lacked testamentary capacity due to old age and sickness; and in the second
alternative

4. That the purported WW was procured through undue and improper pressure
and influence on the part of the principal beneficiary, and/or of some other
person for her benefit.

Lutgarda Santiago filed her Answer to the Opposition on February 1, 1962. After trial, the
court a quo rendered judgment, the summary and dispositive portions of which read:

Passing in summary upon the grounds advanced by the oppositor, this Court
finds:

1. That there is no iota of evidence to support the contentio that the purported will
of the deceased was procured through undue and improper pressure and
influence on the part of the petitioner, or of some other person for her benefit;
 2. That there is insufficient evidence to sustain the contention that at the time of
the alleged execution of the purported will, the deceased lacked testamentary
capacity due to old age and sickness;

3. That sufficient and abundant evidence warrants conclusively the fact that the
purported will of the deceased was not executed and attested as required by law;

4. That the evidence is likewise conclusive that the document presented for
probate, Exhibit 'F' is not the purported win allegedly dictated by the deceased,
executed and signed by her, and attested by her three attesting witnesses on
April 15, 1961.

WHEREFORE, Exhibit "F", the document presented for probate as the last wig
and testament of the deceased Isabel Gabriel is here by DISALLOWED.

From this judgment of disallowance, Lutgarda Santiago appealed to respondent Court, hence,
the only issue decided on appeal was whether or not the will in question was executed and
attested as required by law. The Court of Appeals, upon consideration of the evidence adduced
by both parties, rendered the decision now under review, holding that the will in question was
signed and executed by the deceased Isabel Gabriel on April 15, 1961 in the presence of the
three attesting witnesses, Matilde Orobia, Celso Gimpaya and Maria Gimpaya, signing and
witnessing the document in the presence of the deceased and of each other as required by law,
hence allow ed probate.

Oppositor Rizalina Gabriel Gonzales moved for reconsideration   of the aforesaid decision and
3

such motion was opposed   by petitioner-appellant Lutgarda Santiago. Thereafter. parties
4

submitted their respective Memoranda,  and on August 28, 1973, respondent Court, Former
5

Special First Division, by Resolution   denied the motion for reconsideration stating that:
6

The oppositor-appellee contends that the preponderance of evidence shows that

the supposed last wig and testament of Isabel Gabriel was not executed in
accordance with law because the same was signed on several occasions, that
the testatrix did not sign the will in the presence of all the instrumental witnesses
did not sign the will in the presence of each other.

The resolution of the factual issue raised in the motion for reconsideration hinges
on the appreciation of the evidence. We have carefully re-examined the oral and
documentary evidence of record, There is no reason to alter the findings of fact in
the decision of this Court sought to be set aside.  7

In her petition before this Court, oppositor Rizalina Gabriel Gonzales contends that respondent
Court abused its discretion and/or acted without or in excess of its jurisdiction in reverssing the
findings of fact and conclusions of the trial court. The Court, after deliberating on the petition but
without giving due course resolved, in the Resolution dated Oct. 11, 1973 to require the
respondents to comment thereon, which comment was filed on Nov. 14, 1973. Upon
consideration of the allegations, the issues raised and the arguments adduced in the petition, as
well as the Comment   of private respondent thereon, We denied the petition by Resolution on
8

November 26, 1973,   the question raised being factual and for insufficient showing that the
9

findings of fact by respondent Court were unsupported by substantial evidence.

Subsequently, or on December 17, 1973, petitioner Rim Gabriel Goes fried a Motion for
Reconsideration   which private respondent answered by way of her Comment or
10

Opposition   filed on January 15, 1974. A Reply and Rejoinder to Reply followed. Finally, on
11

March 27, 1974, We resolved to give due course to the petition.

The petitioner in her brief makes the following assignment of errors:

I. The respondent Court of Appeals erred in holding that the document, Exhibit "F" was
executed and attested as required by law when there was absolutely no proof that the three
instrumental witnesses were credible witness

II. The Court of Appeals erred in reversing the finding of the lower court that the preparation and
execution of the win Exhibit "F", was unexpected and coincidental.

III. The Court of Appeals erred in finding that Atty, Paraiso was not previously furnished with the
names and residence certificates of the witnesses as to enable him to type such data into the
document Exhibit "F".

IV. The Court of Appeals erred in holding that the fact that the three typewritten lines under the
typewritten words "Pangalan" and "Tinitirahan" were left blank shows beyond cavil that the three
attesting witnesses were all present in the same occasion.

V. The Court of Appeals erred in reversing the trial court's finding that it was incredible that
Isabel Gabriel could have dictated the wilt Exhibit "F , without any note or document, to Atty.
Paraiso.

VI. The Court of Appeals erred in reversing the finding of the trial court that Matilde Orobia was
not physically present when the Will Exhibit "F" was allegedly signed on April 15, 1961 by the
deceased Isabel Gabriel and the other witnesses Celso Gimpaya and Maria Gimpaya.

VII. The Court of Appeals erred in holding that the trial court gave undue importance to the
picture takings as proof that the win was improperly executed.

VIII. The Court of Appeals erred in holding that the grave contradictions, evasions, and
misrepresentations of witnesses (subscribing and notary) presented by the petitioner had been
explained away, and that the trial court erred in rejecting said testimonies.

IX. The Court of Appeals acted in excess of its appellate jurisdiction or has so far departed from
the accepted and usual course of judicial proceedings, as to call for an exercise of the power of
supervision.

X. The Court of Appeals erred in reversing the decision of the trial court and admitting to
probate Exhibit "F", the alleged last will and testament of the deceased Isabel Gabriel.

It will be noted from the above assignments of errors that the same are substantially factual in
character and content. Hence, at the very outset, We must again state the oft-repeated and
well-established rule that in this jurisdiction, the factual findings of the Court of Appeals are not
reviewable, the same being binding and conclusive on this Court. This rule has been stated and
reiterated in a long line of cases enumerated in Chan vs. CA (L-27488, June 30, 1970, 33
SCRA 737, 743)   and Tapas vs. CA (L-22202, February 27; 1976, 69 SCRA 393),   and in the
12 13

more recent cases of Baptisia vs. Carillo and CA (L32192, July 30, 1976, 72 SCRA 214, 217)
and Vda. de Catindig vs. Heirs of Catalina Roque (L-25777, November 26, 1976, 74 SCRA 83,
88). In the case of Chan vs. CA, this Court said:

... from Guico v. Mayuga, a 1936 decision, the opinion being penned by the then Justice Recto,
it has been well-settled that the jurisdiction of tills Court in cases brought to us from the Court of
Appeals is limited to reviewing and revising the errors of law imputed to it, its findings of fact
being conclusive. More specifically, in a decision exactly a month later, this Court, speaking
through the then Justice Laurel, it was held that the same principle is applicable, even if the
Court of Appeals was in disagreement with the lower court as to the weight of the evidence with
a consequent reversal of its findings of fact ...

Stated otherwise, findings of facts by the Court of Appeals, when supported by substantive
evidence are not reviewable on appeal by certiorari. Said findings of the appellate court are final
and cannot be disturbed by Us particularly because its premises are borne out by the record or
based upon substantial evidence and what is more, when such findings are correct.
Assignments of errors involving factual issues cannot be ventilated in a review of the decision of
the Court of Appeals because only legal questions may be raised. The Supreme Court is not at
liberty to alter or modify the facts as set forth in the decision of the Court of Appeals sought to
be reversed. Where the findings of the Court of Appeals are contrary to those of the trial court, a
minute scrutiny by the Supreme Court is in order, and resort to duly-proven evidence becomes
necessary. The general rule We have thus stated above is not without some recognized
exceptions.

Having laid down the above legal precepts as Our foundation, We now proceed to consider
petitioner's assignments of errors.

Petitioner, in her first assignment, contends that the respondent Court of Appeals erred in
holding that the document, Exhibit "F", was executed and attested as required by law when
there was absolutely no proof that the three instrumental witnesses were credible witnesses.
She argues that the require. ment in Article 806, Civil Code, that the witnesses must be credible
is an absolute requirement which must be complied with before an alleged last will and
testament may be admitted to probate and that to be a credible witness, there must be evidence
on record that the witness has a good standing in his community, or that he is honest and
upright, or reputed to be trustworthy and reliable. According to petitioner, unless the
qualifications of the witness are first established, his testimony may not be favorably considered.
Petitioner contends that the term "credible" is not synonymous with "competent" for a witness
may be competent under Article 820 and 821 of the Civil Code and still not be credible as
required by Article 805 of the same Code. It is further urged that the term "credible" as used in
the Civil Code should receive the same settled and well- known meaning it has under the
Naturalization Law, the latter being a kindred legislation with the Civil Code provisions on wigs
with respect to the qualifications of witnesses.

We find no merit to petitioner's first assignment of error. Article 820 of the Civil Code provides
the qualifications of a witness to the execution of wills while Article 821 sets forth the
disqualification from being a witness to a win. These Articles state:

Art. 820. Any person of sound mind and of the age of eighteen years or more,
and not blind, deaf or dumb, and able to read and write, may be a witness to the
 execution of a will mentioned in article 806 of this Code. "Art. 821. The following
are disqualified from being witnesses to a will:

(1) Any person not domiciled in the Philippines,

(2) Those who have been convicted of falsification of a document, perjury or false
testimony.

Under the law, there is no mandatory requirement that the witness testify initially or at any time
during the trial as to his good standing in the community, his reputation for trustworthythiness
and reliableness, his honesty and uprightness in order that his testimony may be believed and
accepted by the trial court. It is enough that the qualifications enumerated in Article 820 of the
Civil Code are complied with, such that the soundness of his mind can be shown by or deduced
from his answers to the questions propounded to him, that his age (18 years or more) is shown
from his appearance, testimony , or competently proved otherwise, as well as the fact that he is
not blind, deaf or dumb and that he is able to read and write to the satisfaction of the Court, and
that he has none of the disqualifications under Article 821 of the Civil Code. We reject
petitioner's contention that it must first be established in the record the good standing of the
witness in the community, his reputation for trustworthiness and reliableness, his honesty and
uprightness, because such attributes are presumed of the witness unless the contrary is proved
otherwise by the opposing party.

We also reject as without merit petitioner's contention that the term "credible" as used in the
Civil Code should be given the same meaning it has under the Naturalization Law where the law
is mandatory that the petition for naturalization must be supported by two character witnesses
who must prove their good standing in the community, reputation for trustworthiness and
reliableness, their honesty and uprightness. The two witnesses in a petition for naturalization
are character witnesses in that being citizens of the Philippines, they personally know the
petitioner to be a resident of the Philippines for the period of time required by the Act and a
person of good repute and morally irreproachable and that said petitioner has in their opinion all
the qualifications necessary to become a citizen of the Philippines and is not in any way
disqualified under the provisions of the Naturalization Law (Section 7, Commonwealth Act No.
473 as amended).

In probate proceedings, the instrumental witnesses are not character witnesses for they merely
attest the execution of a will or testament and affirm the formalities attendant to said execution.
And We agree with the respondent that the rulings laid down in the cases cited by petitioner
concerning character witnesses in naturalization proceedings are not applicable to instrumental
witnesses to wills executed under the Civil Code of the Philippines.

In the case at bar, the finding that each and everyone of the three instrumental witnesses,
namely, Matilde Orobia, Celso Gimpaya and Maria Gimpaya, are competent and credible is
satisfactorily supported by the evidence as found by the respondent Court of Appeals, which
findings of fact this Tribunal is bound to accept and rely upon. Moreover, petitioner has not
pointed to any disqualification of any of the said witnesses, much less has it been shown that
anyone of them is below 18 years of age, of unsound mind, deaf or dumb, or cannot read or
write.

It is true that under Article 805 of the New Civil Code, 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, While the petitioner submits that Article 820 and 821 of the New Civil Code speak of
the competency of a witness due to his qualifications under the first Article and none of the
disqualifications under the second Article, whereas Article 805 requires the attestation of three
or more credible witnesses, petitioner concludes that the term credible requires something more
than just being competent and, therefore, a witness in addition to being competent under
Articles 820 and 821 must also be a credible witness under Article 805.

Petitioner cites American authorities that competency and credibility of a witness are not
synonymous terms and one may be a competent witness and yet not a credible one. She
exacerbates that there is no evidence on record to show that the instrumental witnesses are
credible in themselves, that is, that they are of good standing in the community since one was a
family driver by profession and the second the wife of the driver, a housekeeper. It is true that
Celso Gimpaya was the driver of the testatrix and his wife Maria Gimpaya, merely a
housekeeper, and that Matilde Orobia was a piano teacher to a grandchild of the testatrix But
the relation of employer and employee much less the humble or financial position of a person do
not disqualify him to be a competent testamentary witness. (Molo Pekson and Perez Nable vs.
Tanchuco, et al., 100 Phil. 344; Testate Estate of Raymundo, Off. Gaz., March 18,1941, p. 788).

Private respondent maintains that the qualifications of the three or more credible witnesses
mentioned in Article 805 of the Civil Code are those mentioned in Article 820 of the same Code,
this being obvious from that portion of Article 820 which says "may be Q witness to the
execution of a will mentioned in Article 805 of this Code," and cites authorities that the word
"credible" insofar as witnesses to a will are concerned simply means " competent." Thus, in the
case of Suntay vs. Suntay, 95 Phil. 500, the Supreme Court held that "Granting that a will was
duly executed and that it was in existence at the time of, and not revoked before, the death of
the testator, still the provisions of the lost wig must be clearly and distinctly proved by at least
two credible witnesses. 'Credible witnesses' mean competent witnesses and not those who
testify to facts from or upon hearsay. " emphasis supplied).

In Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344, the Supreme Court held
that "Section 620 of the same Code of Civil Procedure provides that any person of sound mind,
and of the age of eighteen years or more, and not blind, deaf, or dumb and able to read and
write, may be a witness to the execution of a will. This same provision is reproduced in our New
Civil Code of 1950, under Art. 820. The relation of employer and employee, or being a relative
to the beneficiary in a win, does not disqualify one to be a witness to a will. The main
qualification of a witness in the attestation of wills, if other qualifications as to age, mental
capacity and literacy are present, is that said witness must be credible, that is to say, his
testimony may be entitled to credence. There is a long line of authorities on this point, a few of
which we may cite:

A 'credible witness is one who is not is not to testify by mental incapacity, crime,
or other cause. Historical Soc of Dauphin County vs. Kelker 74 A. 619, 226 Pix
16, 134 Am. St. Rep. 1010. (Words and Phrases, Vol. 10, p. 340).

As construed by the common law, a 'credible witness' to a will means a

'competent witness.' Appeal of Clark, 95 A. 517, 114 Me. 105, Ann. Cas. 1917A,
837. (lbid, p. 341).
 Expression 'credible witness' in relation to attestation of wins means 'competent
witness that is, one competent under the law to testify to fact of execution of will.
Vernon's Ann. Civ St. art. 8283. Moos vs. First State Bank of Uvalde, Tex . Civ.
App. 60 S.W. 2nd 888, 889. (Ibid, p. 342)

The term 'credible', used in the statute of wills requiring that a will shall be
attested by two credible witnesses means competent; witnesses who, at the time
of attesting the will, are legally competent to testify, in a court of justice, to the
facts attested by subscribing the will, the competency being determined as of the
date of the execution of the will and not of the timr it is offered for probate, Smith
vs. Goodell 101 N.E. 255, 256, 258 111. 145. (Ibid.)

Credible witnesses as used in the statute relating to wills, means competent

witnesses — that is, such persons as are not legally disqualified from testifying in
courts of justice, by reason of mental incapacity, interest, or the commission of
crimes, or other cause excluding them from testifying generally, or rendering
them incompetent in respect of the particular subject matter or in the particular
suit. Hill vs. Chicago Title & Trust co 152 N.E. 545, 546, 322 111. 42. (Ibid. p,
343)

In the strict sense, the competency of a person to be an instrumental witness to a will is

determined by the statute, that is Art. 820 and 821, Civil Code, whereas his credibility depends
On the appreciation of his testimony and arises from the belief and conclusion of the Court that
said witness is telling the truth. Thus, in the case of Vda. de Aroyo v. El Beaterio del Santissimo
Rosario de Molo, No. L-22005, May 3, 1968, the Supreme Court held and ruled that:
"Competency as a witness is one thing, and it is another to be a credible witness, so credible
that the Court must accept what he says. Trial courts may allow a person to testify as a witness
upon a given matter because he is competent, but may thereafter decide whether to believe or
not to believe his testimony." In fine, We state the rule that the instrumental witnesses in Order
to be competent must be shown to have the qualifications under Article 820 of the Civil Code
and none of the disqualifications under Article 821 and for their testimony to be credible, that is
worthy of belief and entitled to credence, it is not mandatory that evidence be first established
on record that the witnesses have a good standing in the community or that they are honest and
upright or reputed to be trustworthy and reliable, for a person is presumed to be such unless the
contrary is established otherwise. In other words, the instrumental witnesses must be competent
and their testimonies must be credible before the court allows the probate of the will they have
attested. We, therefore, reject petitioner's position that it was fatal for respondent not to have
introduced prior and independent proof of the fact that the witnesses were "credible witnesses
that is, that they have a good standing in the community and reputed to be trustworthy and
reliable.

Under the second, third, fourth, fifth, sixth, seventh and eighth assignments of errors, petitioner
disputes the findings of fact of the respondent court in finding that the preparation and execution
of the will was expected and not coincidental, in finding that Atty. Paraiso was not previously
furnished with the names and residence certificates of the witnesses as to enable him to type
such data into the document Exhibit "F", in holding that the fact that the three typewritten lines
under the typewritten words "pangalan" and "tinitirahan" were left blank shows beyond cavil that
the three attesting witnesses were all present in the same occasion, in holding credible that
Isabel Gabriel could have dictated the will without note or document to Atty. Paraiso, in holding
that Matilde Orobia was physically present when the will was signed on April 15, 1961 by the
deceased Isabel Gabriel and the other witnesses Celso Gimpaya and Maria Gimpaya, in
holding that the trial court gave undue importance to the picture takings as proof that the will
was improperly executed, and in holding that the grave contradictions, evasions and
misrepresentations of the witnesses (subscribing and notary) presented by the petitioner had
been explained away.

Since the above errors are factual We must repeat what We have previously laid down that the
findings of fact of the appellate court are binding and controlling which We cannot review,
subject to certain exceptions which We win consider and discuss hereinafter. We are convinced
that the appellate court's findings are sufficiently justified and supported by the evidence on
record. Thus, the alleged unnaturalness characterizing the trip of the testatrix to the office of
Atty. Paraiso and bringing all the witnesses without previous appointment for the preparation
and execution of the win and that it was coincidental that Atty. Paraiso was available at the
moment impugns the finding of the Court of Appeals that although Atty. Paraiso admitted the
visit of Isabel Gabriel and of her companions to his office on April 15, 1961 was unexpected as
there was no prior appointment with him, but he explained that he was available for any
business transaction on that day and that Isabel Gabriel had earlier requested him to help her
prepare her will. The finding of the appellate court is amply based on the testimony of Celso
Gimpaya that he was not only informed on the morning of the day that he witnessed the will but
that it was the third time when Isabel Gabriel told him that he was going to witness the making
of her will, as well as the testimony of Maria Gimpaya that she was called by her husband Celso
Gimpaya to proceed to Isabel Gabriel's house which was nearby and from said house, they left
in a car to the lawyer's office, which testimonies are recited in the respondent Court's decision.

The respondent Court further found the following facts: that Celso Gimpaya and his wife Maria
Gimpaya obtained residence certificates a few days before Exhibit "F" was executed. Celso
Gimpaya's residence certificate No. A-5114942 was issued at Navotas, Rizal on April 13, 1961
while Maria Gimpaya's residence certificate No. A-5114974 was issued also at Navotas, Rizal
on April 14, 1961. The respondent Court correctly observed that there was nothing surprising in
these facts and that the securing of these residence certificates two days and one day,
respectively, before the execution of the will on April 15, 1961, far from showing an amazing
coincidence, reveals that the spouses were earlier notified that they would be witnesses to the
execution of Isabel Gabriel's will.

We also agree with the respondent Court's conclusion that the excursion to the office of Atty.
Paraiso was planned by the deceased, which conclusion was correctly drawn from the
testimony of the Gimpaya spouses that they started from the Navotas residence of the
deceased with a photographer and Isabel Gabriel herself, then they proceeded by car to Matilde
Orobia's house in Philamlife, Quezon City to fetch her and from there, all the three witnesses
(the Gimpayas and Orobia) passed by a place where Isabel Gabriel stayed for about ten to
fifteen minutes at the clinic of Dr. Chikiamco before they proceeded to Atty. Cipriano Paraiso's
office.

It is also evident from the records, as testified to by Atty. Paraiso, that previous to the day that.
the will was executed on April 15, 1961, Isabel Gabriel had requested him to help her in the
execution of her will and that he told her that if she really wanted to execute her will, she should
bring with her at least the Mayor of Navotas, Rizal and a Councilor to be her witnesses and that
he (Atty. Paraiso) wanted a medical certificate from a physician notwithstanding the fact that he
believed her to be of sound and disposition mind. From this evidence, the appellate court rightly
concluded, thus: "It is, therefore, clear that the presence of Isabel Gabriel and her witnesses
Matilde Orobia, Celso Gimpaya and Maria Gimpaya including the photographer in the law office
of Atty. Paraiso was not coincidental as their gathering was pre-arranged by Isabel Gabriel
herself."

As to the appellate court's finding that Atty. Paraiso was not previously furnished with the names
and residence certificates of the witnesses as to enable him to type such data into the document
Exhibit ' L which the petitioner assails as contradictory and irreconcilable with the statement of
the Court that Atty. Paraiso was handed a list (containing the names of the witnesses and their
respective residence certificates) immediately upon their arrival in the law office by Isabel
Gabriel and this was corroborated by Atty. Paraiso himself who testified that it was only on said
occasion that he received such list from Isabel Gabriel, We cannot agree with petitioner's
contention. We find no contradiction for the, respondent Court held that on the occasion of the
will making on April 15, 1961, the list was given immediately to Atty. Paraiso and that no such
list was given the lawyer in any previous occasion or date prior to April 15, 1961.

But whether Atty. Paraiso was previously furnished with the names and residence certificates of
the witnesses on a prior occasion or on the very occasion and date in April 15, 1961 when the
will was executed, is of no moment for such data appear in the notarial acknowledgment of
Notary Public Cipriano Paraiso, subscribed and sworn to by the witnesses on April 15, 1961
following the attestation clause duly executed and signed on the same occasion, April 15, 1961.
And since Exhibit "F" is a notarial will duly acknowledged by the testatrix and the witnesses
before a notary public, the same is a public document executed and attested through the
intervention of the notary public and as such public document is evidence of the facts in clear,
unequivocal manner therein expressed. It has in its favor the presumption of regularity. To
contradict all these, there must be evidence that is clear, convincing and more than merely
preponderant. (Yturalde vs. Azurin, 28 SCRA 407). We find no such evidence pointed by
petitioner in the case at bar.

Likewise, the conclusion of the Court of Appeals in holding that the fact that the three
typewritten lines under the typewritten words "pangalan ' and "tinitirahan" were left blank shows
beyond cavil that the three attesting witnesses were all present in the same occasion merits Our
approval because tills conclusion is supported and borne out by the evidence found by the
appellate court, thus: "On page 5 of Exhibit "F", beneath the typewritten words "names", "Res.
Tax Cert. date issued" and place issued the only name of Isabel Gabriel with Residence Tax
certificate No. A-5113274 issued on February 24, 1961 at Navotas Rizal appears to be in
typewritten form while the names, residence tax certificate numbers, dates and places of
issuance of said certificates pertaining to the three (3) witnesses were personally handwritten by
Atty. Paraiso. Again, this coincides with Atty. Paraiso's even the sale must be made to close
relatives; and the seventh was the appointment of the appellant Santiago as executrix of the will
without bond. The technical description of the properties in paragraph 5 of Exhibit F was not
given and the numbers of the certificates of title were only supplied by Atty. Paraiso. "

It is true that in one disposition, the numbers of the Torrens titles of the properties disposed and
the docket number of a special proceeding are indicated which Atty. Paraiso candidly admitted
were supplied by him, whereupon petitioner contends that it was incredible that Isabel Gabriel
could have dictated the will Exhibit "F" without any note or document to Atty. Paraiso,
considering that Isabel Gabriel was an old and sickly woman more than eighty-one years old
and had been suffering from a brain injury caused by two severe blows at her head and died of
terminal cancer a few weeks after the execution of Exhibit "F". While we can rule that this is a
finding of fact which is within the competency of the respondent appellate court in determining
the testamentary capacity of the testatrix and is, therefore, beyond Our power to revise and
review, We nevertheless hold that the conclusion reached by the Court of Appeals that the
testatrix dictated her will without any note or memorandum appears to be fully supported by the
following facts or evidence appearing on record. Thus, Isabel Gabriel, despite her age, was
particularly active in her business affairs as she actively managed the affairs of the movie
business ISABELITA Theater, paying the aparatistas herself until June 4, 1961, 3 days before
her death. She was the widow of the late Eligio Naval, former Governor of Rizal Province and
acted as coadministratrix in the Intestate Estate of her deceased husband Eligio Naval. The text
of the win was in Tagalog, a dialect known and understood by her and in the light of all the
circumstances, We agree with the respondent Court that the testatrix dictated her will without
any note or memorandum, a fact unanimously testified to by the three attesting witnesses and
the notary public himself.

Petitioner's sixth assignment of error is also bereft of merit. The evidence, both testimonial and
documentary is, according to the respondent court, overwhelming that Matilde Orobia was
physically present when the will was signed on April 15, 1961 by the testatrix and the other two
witnesses, Celso Gimpaya and Maria Gimpaya. Such factual finding of the appellate court is
very clear, thus: "On the contrary, the record is replete with proof that Matilde Orobia was
physically present when the will was signed by Isabel Gabriel on April '15, 1961 along with her
co-witnesses Celso Gimpaya and Maria Gimpaya. The trial court's conclusion that Orobia's
admission that she gave piano lessons to the child of the appellant on Wednesdays and
Saturdays and that April 15, 1961 happened to be a Saturday for which reason Orobia could not
have been present to witness the will on that — day is purely conjectural. Witness Orobia did
not admit having given piano lessons to the appellant's child every Wednesday and Saturday
without fail. It is highly probable that even if April 15, 1961 were a Saturday, she gave no piano
lessons on that day for which reason she could have witnessed the execution of the will. Orobia
spoke of occasions when she missed giving piano lessons and had to make up for the same.
Anyway, her presence at the law office of Atty. Paraiso was in the morning of April 15, 1961 and
there was nothing to preclude her from giving piano lessons on the afternoon of the same day in
Navotas, Rizal."

In addition to the testimony of Matilde Orobia, Celso Gimpaya and Maria Gimpaya that Matilde
was present on April 15, 1961 and that she signed the attestation clause to the will and on the
left-hand margin of each of the pages of the will, the documentary evidence which is the will
itself, the attestation clause and the notarial acknowledgment overwhelmingly and convincingly
prove such fact that Matilde Orobia was present on that day of April 15, 1961 and that she
witnessed the will by signing her name thereon and acknowledged the same before the notary
public, Atty. Cipriano P. Paraiso. The attestation clause which Matilde Orobia signed is the best
evidence as to the date of signing because it preserves in permanent form a recital of all the
material facts attending the execution of the will. This is the very purpose of the attestation
clause which is made for the purpose of preserving in permanent form a record of the facts
attending the execution of the will, so that in case of failure in the memory of the subscribing
witnesses, or other casualty they may still be proved. (Thompson on Wills, 2nd ed., Sec. 132;
Leynez vs. Leynez, 68 Phil. 745).

As to the seventh error assigned by petitioner faulting the Court of Appeals in holding that the
trial court gave undue importance to the picture-takings as proof that the win was improperly
executed, We agree with the reasoning of the respondent court that: "Matilde Orobia's
Identification of the photographer as "Cesar Mendoza", contrary to what the other two witnesses
(Celso and Maria Gimpaya) and Atty. Paraiso said that the photographer was Benjamin Cifra,
Jr., is at worst a minor mistake attributable to lapse of time. The law does not require a
photographer for the execution and attestation of the will. The fact that Miss Orobia mistakenly
Identified the photographer as Cesar Mendoza scarcely detracts from her testimony that she
was present when the will was signed because what matters here is not the photographer but
the photograph taken which clearly portrays Matilde Orobia herself, her co-witnesses Celso
Gimpaya. " Further, the respondent Court correctly held: "The trial court gave undue importance
to the picture takings, jumping therefrom to the conclusion that the will was improperly executed.
The evidence however, heavily points to only one occasion of the execution of the will on April
15, 1961 which was witnessed by Matilde Orobia, Celso Gimpaya and Maria Gimpaya. These
witnesses were quite emphatic and positive when they spoke of this occasion. Hence, their
Identification of some photographs wherein they all appeared along with Isabel Gabriel and Atty.
Paraiso was superfluous."

Continuing, the respondent Court declared: "It is true that the second picture-taking was
disclosed at the cross examination of Celso Gimpaya. But this was explained by Atty. Paraiso
as a reenactment of the first incident upon the insistence of Isabel Gabriel. Such reenactment
where Matilde Orobia was admittedly no longer present was wholly unnecessary if not pointless.
What was important was that the will was duly executed and witnessed on the first occasion on
April 15, 1961 , " and We agree with the Court's rationalization in conformity with logic, law and
jurisprudence which do not require picture-taking as one of the legal requisites for the execution
or probate of a will.

Petitioner points to alleged grave contradictions, evasions and misrepresentations of witnesses

in their respective testimonies before the trial court. On the other hand, the respondent Court of
Appeals held that said contradictions, evasions and misrepresentations had been explained
away. Such discrepancies as in the description of the typewriter used by Atty. Paraiso which he
described as "elite" which to him meant big letters which are of the type in which the will was
typewritten but which was Identified by witness Jolly Bugarin of the N.B.I. as pica the mistake in
mentioning the name of the photographer by Matilde Orobia to be Cesar Mendoza when
actually it was Benjamin Cifra, Jr.— these are indeed unimportant details which could have
been affected by the lapse of time and the treachery of human memory such that by themselves
would not alter the probative value of their testimonies on the true execution of the will, (Pascual
vs. dela Cruz, 28 SCRA 421, 424) for it cannot be expected that the testimony of every person
win be Identical and coinciding with each other with regard to details of an incident and that
witnesses are not expected to remember all details. Human experience teach us "that
contradictions of witnesses generally occur in the details of certain incidents, after a long series
of questionings, and far from being an evidence of falsehood constitute a demonstration of good
faith. In as much 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." (Lopez vs. Liboro, 81 Phil. 429).

It is urged of Us by the petitioner that the findings of the trial court should not have been
disturbed by the respondent appellate court because the trial court was in a better position to
weigh and evaluate the evidence presented in the course of the trial. As a general rule,
petitioner is correct but it is subject to well-established exceptions. The right of the Court of
Appeals to review, alter and reverse the findings of the trial court where the appellate court, in
reviewing the evidence has found that facts and circumstances of weight and influence have
been ignored and overlooked and the significance of which have been misinterpreted by the trial
court, cannot be disputed. Findings of facts made by trial courts particularly when they are
based on conflicting evidence whose evaluation hinges on questions of credibility of contending
witnesses hes peculiarly within the province of trial courts and generally, the appellate court
should not interfere with the same. In the instant case, however, the Court of Appeals found that
the trial court had overlooked and misinterpreted the facts and circumstances established in the
record. Whereas the appellate court said that "Nothing in the record supports the trial court's
unbelief that Isabel Gabriel dictated her will without any note or document to Atty. Paraiso;" that
the trial court's conclusion that Matilde Orobia could not have witnessed anybody signing the
alleged will or that she could not have witnessed Celso Gimpaya and Maria Gimpaya sign the
same or that she witnessed only the deceased signing it, is a conclusion based not on facts but
on inferences; that the trial court gave undue importance to the picture-takings, jumping
therefrom to the conclusion that the will was improperly executed and that there is nothing in the
entire record to support the conclusion of the court a quo that the will signing occasion was a
mere coincidence and that Isabel Gabriel made an appointment only with Matilde Orobia to
witness the signing of her will, then it becomes the duty of the appellate court to reverse findings
of fact of the trial court in the exercise of its appellate jurisdiction over the lower courts.

Still the petitioner insists that the case at bar is an exception to the rule that the judgment of the
Court of Appeals is conclusive as to the facts and cannot be reviewed by the Supreme Court.
Again We agree with the petitioner that among the exceptions are: (1) when the conclusion is a
finding grounded entirely on speculations, surmises or conjectures; (2) when the inference is
manifestly mistaken, absurd or impossible; (3) when there is a grave abuse of discretion; (4)
when the presence of each other as required by law. " Specifically, We affirm that on April 15,
1961 the testatrix Isabel Gabriel, together with Matilde Orobia, Celso Gimpaya and his wife
Maria Gimpaya, and a photographer proceeded in a car to the office of Atty. Cipriano Paraiso at
the Bank of P.I. Building, Manila in the morning of that day; that on the way, Isabel Gabriel
obtained a medical certificate from one Dr. Chikiamko which she gave to Atty. Paraiso upon
arriving at the latter's office and told the lawyer that she wanted her will to be made; that Atty.
Paraiso asked Isabel Gabriel to dictate what she wanted to be written in the will and the attorney
wrote down the dictation of Isabel Gabriel in Tagalog, a language known to and spoken by her;
that Atty. Paraiso read back to her what he wrote as dictated and she affirmed their correctness;
the lawyer then typed the will and after finishing the document, he read it to her and she told him
that it was alright; that thereafter, Isabel Gabriel signed her name at the end of the will in the
presence of the three witnesses Matilde Orobia, Celso Gimpaya and Maria Gimpaya and also at
the left-hand margin of each and every page of the document in the presence also of the said
three witnesses; that thereafter Matilde Orobia attested the will by signing her name at the end
of the attestation clause and at the left-hand margin of pages 1, 2, 3 and 5 of the document in
the presence of Isabel Gabriel and the other two witnesses, Celso Gimpaya and Maria
Gimpaya; then, Celso Gimpaya signed also the will at the bottom of the attestation clause and
at the left-hand margin of the other pages of the document in the presence of Isabel Gabriel,
Matilde Orobia and Maria Gimpaya; that Maria Gimpaya followed suit, signing her name at the
foot of the attestation clause and at the left-hand margin of every page in the presence of Isabel
Gabriel, Matilde Orobia and Celso Gimpaya; that thereafter, Atty. Paraiso notarized the will as
Page No. 94, Book No. IV, Series of 1961, in his Notarial Register. On the occasion of the
execution and attestation of the will, a photographer took pictures, one Exhibit "G", depicting
Matilde Orobia, the testatrix Isabel Gabriel, Celso Gimpaya, Maria Gimpaya and Atty. Paraiso,
taken on said occasion of the signing of the will, and another, Exhibit "H", showing Matilde
Orobia signing testimony that he had earlier advised Isabel Gabriel to bring with her at least the
Mayor and a Councilor of Navotas, Rizal to be her witnesses for he did not know beforehand the
Identities of the three attesting witnesses until the latter showed up at his law office with Isabel
Gabriel on April 15, 1961. Atty. Paraiso's claim which was not controverted that he wrote down
in his own hand the date appearing on page 5 of Exhibit "F" dissipates any lingering doubt that
he prepared and ratified the will on the date in question."
It is also a factual finding of the Court of Appeals in holding that it was credible that Isabel
Gabriel could have dictated the will, Exhibit "F", without any note or document to Atty. Paraiso
as against the contention of petitioner that it was incredible. This ruling of the respondent court
is fully supported by the evidence on record as stated in the decision under review, thus:
"Nothing in the record supports the trial court's unbelief that Isabel Gabriel dictated her will
without any note or document to Atty. Paraiso. On the contrary, all the three attesting witnesses
uniformly testified that Isabel Gabriel dictated her will to Atty. Paraiso and that other than the
piece of paper that she handed to said lawyer she had no note or document. This fact jibes with
the evidence — which the trial court itself believed was unshaken — that Isabel Gabriel was of
sound disposing memory when she executed her will.

Exhibit "F" reveals only seven (7) dispositions which are not complicated but quite simple. The
first was Isabel Gabriel's wish to be interred according to Catholic rites the second was a
general directive to pay her debts if any; the third provided for P1,000.00 for her sister Praxides
Gabriel Vda. de Santiago and P2,000.00 for her brother Santiago Gabriel; the fourth was a
listing of her 13 nephews and nieces including oppositor-appellee Rizalina Gabriel and the
amount for each legatee the fifth was the institution of the petitioner-appellant, Lutgarda
Santiago as the principal heir mentioning in general terms seven (7) types of properties; the
sixth disposed of the remainder of her estate which she willed in favor of appellant Lutgarda
Santiago but prohibiting the sale of such properties to anyone except in extreme situations in
which judgment is based on a misapprehension of facts; (5) when the findings of fact are
conflicting, (6) when the Court of Appeals, in making its findings, went beyond the issues of the
case and the same is contrary to the admissions of both appellant and appellee. (Roque vs.
Buan, et al., G.R. No. L-22459, Oct. 31, 1967; Ramos vs. Pepsi Cola Bottling Co., G.R. No. L-
22533, Feb. 9, 1967; Hilarion Jr. vs. City of Manila, G.R. No. L-19570; Sept. 14, 1967).

Petitioner's insistence is without merit. We hold that the case at bar does not fall within any of
the exceptions enumerated above. We likewise hold that the findings of fact of the respondent
appellate court are fully supported by the evidence on record. The conclusions are fully
sustained by substantial evidence. We find no abuse of discretion and We discern no
misapprehension of facts. The respondent Court's findings of fact are not conflicting. Hence, the
well-established rule that the decision of the Court of Appeals and its findings of fact are binding
and conclusive and should not be disturbed by this Tribunal and it must be applied in the case
at bar in its full force and effect, without qualification or reservation. The above holding simply
synthesize the resolutions we have heretofore made in respect ' to petitioner's previous
assignments of error and to which We have disagreed and, therefore, rejected.

The last assignments of error of petitioner must necessarily be rejected by Us as We find the
respondent Court acted properly and correctly and has not departed from the accepted and
usual course of judicial proceedings as to call for the exercise of the power of supervision by the
Supreme Court, and as We find that the Court of Appeals did not err in reversing the decision of
the trial court and admitting to probate Exhibit "F", the last will and testament of the deceased
Isabel Gabriel.

We rule that the respondent Court's factual findings upon its summation and evaluation of the
evidence on record is unassailable that: "From the welter of evidence presented, we are
convinced that the will in question was executed on April 15, 1961 in the presence of Matilde
Orobia, Celso Gimpaya and Maria Gimpaya signing and witnessing the same in the the will on a
table with Isabel Gabriel, Celso Gimpaya and Maria Gimpaya sitting around the table. Atty.
Paraiso, after finishing the notarial act, then delivered the original to Isabel Gabriel and retained
the other copies for his file and notarial register. A few days following the signing of the will,
Isabel Gabriel, Celso Gimpaya and another photographer arrived at the office of Atty. Paraiso
and told the lawyer that she wanted another picture taken because the first picture did not turn
out good. The lawyer told her that this cannot be done because the will was already signed but
Isabel Gabriel insisted that a picture be taken, so a simulated signing was performed during
which incident Matilde Orobia was not present.

Petitioner's exacerbation centers on the supposed incredibility of the testimonies of the

witnesses for the proponent of the will, their alleged evasions, inconsistencies and
contradictions. But in the case at bar, the three instrumental witnesses who constitute the best
evidence of the will making have testified in favor of the probate of the will. So has the lawyer
who prepared it, one learned in the law and long in the practice thereof, who thereafter
notarized it. All of them are disinterested witnesses who stand to receive no benefit from the
testament. The signatures of the witnesses and the testatrix have been identified on the will and
there is no claim whatsoever and by anyone, much less the petitioner, that they were not
genuine. In the last and final analysis, the herein conflict is factual and we go back to the rule
that the Supreme Court cannot review and revise the findings of facts of the respondent Court of
Appeals. WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is
hereby AFFIRMED, with costs against the petitioner.
G.R. No. 76464 February 29, 1988

TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA

MALOTO CASIANO, CONSTANCIO MALOTO, PURIFICACION
MIRAFLOR, ROMAN CATHOLIC CHURCH OF MOLO, AND ASILO
DE MOLO, petitioners, 
vs.
COURT OF APPEALS, PANFILO MALOTO AND FELINO
MALOTO, respondents.

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

For a better understanding of the controversy, a factual account would

be a great help.

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

Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a

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

Thus, on May 24, 1967, Aldina and Constancio, joined by the other
devisees and legatees named in the will, filed in Special Proceeding
No. 1736 a motion for reconsideration and annulment of the
proceedings therein and for the allowance of the will When the trial
court denied their motion, the petitioner came to us by way of a
petition for certiorari and mandamus assailing the orders of the trial
court .   As we stated earlier, we dismissed that petition and advised
3

that a separate proceeding for the probate of the alleged will would be
the appropriate vehicle to thresh out the matters raised by the
petitioners.

Significantly, the appellate court while finding as inconclusive the

matter on whether or not the document or papers allegedly burned by
the househelp of Adriana, Guadalupe Maloto Vda. de Coral, upon
instructions of the testatrix, was indeed the will, contradicted itself and
found that the will had been revoked. The respondent court stated that
the presence of animus revocandi in the destruction of the will had,
nevertheless, been sufficiently proven. The appellate court based its
finding on the facts that the document was not in the two safes in
Adriana's residence, by the testatrix going to the residence of Atty.
Hervas to retrieve a copy of the will left in the latter's possession, and,
her seeking the services of Atty. Palma in order to have a new will
drawn up. For reasons shortly to be explained, we do not view such
facts, even considered collectively, as sufficient bases for the
conclusion that Adriana Maloto's will had been effectively revoked.

There is no doubt as to the testamentary capacity of the testatrix and

the due execution of the will. The heart of the case lies on the issue as
to whether or not the will was revoked by Adriana.

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

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

cases:

(1) By implication of law; or

(2) By some will, codicil, or other writing executed as

provided in case of wills: or

(3) By burning, tearing, cancelling, or obliterating the will

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

It is clear that the physical act of destruction of a will, like burning in

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

In this case, while animus revocandi or the intention to revoke, may be

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

The respondent appellate court in assessing the evidence presented

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

At this juncture, we reiterate that "(it) is an important matter of public

interest that a purported win is not denied legalization on dubious
grounds. Otherwise, the very institution of testamentary succession
will be shaken to its very foundations ...."
4

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

The doctrine of res adjudicata finds no application in the present

controversy. For a judgment to be a bar to a subsequent case, the
following requisites must concur: (1) the presence of a final former
judgment; (2) the former judgment was rendered by a court having
jurisdiction over the subject matter and the parties; (3) the former
judgment is a judgment on the merits; and (4) there is, between the
first and the second action, Identity of parties, of subject matter, and of
cause of action.   We do not find here the presence of all the
5

enumerated requisites.

For one, there is yet, strictly speaking, no final judgment rendered

insofar as the probate of Adriana Maloto's will is concerned. The
decision of the trial court in Special Proceeding No. 1736, although
final, involved only the intestate settlement of the estate of Adriana. As
such, that judgment could not in any manner be construed to be final
with respect to the probate of the subsequently discovered will of the
decedent. Neither is it a judgment on the merits of the action for
probate. This is understandably so because the trial court, in the
intestate proceeding, was without jurisdiction to rule on the probate of
the contested will .   After all, an action for probate, as it implies, is
6

founded on the presence of a will and with the objective of proving its
due execution and validity, something which can not be properly done
in an intestate settlement of estate proceeding which is predicated on
the assumption that the decedent left no will. Thus, there is likewise
no Identity between the cause of action in intestate proceeding and
that in an action for probate. Be that as it may, it would be
remembered that it was precisely because of our ruling in G.R. No. L-
30479 that the petitioners instituted this separate action for the
probate of the late Adriana Maloto's will. Hence, on these grounds
alone, the position of the private respondents on this score can not be
sustained.

One last note. The private respondents point out that revocation could
be inferred from the fact that "(a) major and substantial bulk of the
properties mentioned in the will had been disposed of: while an
insignificant portion of the properties remained at the time of death (of
the testatrix); and, furthermore, more valuable properties have been
acquired after the execution of the will on January 3,1940."   Suffice it
7

to state here that as these additional matters raised by the private

respondents are extraneous to this special proceeding, they could
only be appropriately taken up after the will has been duly probated
and a certificate of its allowance issued.

WHEREFORE, judgment is hereby rendered REVERSING and

SETTING ASIDE the Decision dated June 7, 1985 and the Resolution
dated October 22, 1986, of the respondent Court of Appeals, and a
new one ENTERED for the allowance of Adriana Maloto's last will and
testament. Costs against the private respondents.
G.R. No. L-26317             January 29, 1927

Estate of Miguel Mamuyac, deceased. 

FRANCISCO GAGO, petitioner-appellant, 
vs.
CORNELIO MAMUYAC, AMBROSIO LARIOSA, 
FELICIANA BAUZON, and CATALINA MAMUYAC, opponents-
appellees.

Nicanor Tavora for appellant.

Jose Rivera for appellees.

JOHNSON, J.:

The purpose of this action was to obtain the probation of a last will and
testament of Miguel Mamuyac, who died on the 2d day of January,
1922, in the municipality of Agoo of the Province of La Union. It
appears from the record that on or about the 27th day of July, 1918,
the said Miguel Mamuyac executed a last will and testament (Exhibit
A). In the month of January, 1922, the said Francisco Gago presented
a petition in the Court of First Instance of the Province of La Union for
the probation of that will. The probation of the same was opposed by
Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina
Mamuyac (civil cause No. 1144, Province of La Union). After hearing
all of the parties the petition for the probation of said will was denied
by the Honorable C. M. Villareal on the 2d day of November, 1923,
upon the ground that the deceased had on the 16th day of April, 1919,
executed a new will and testament.

On the 21st day of February, 1925, the present action was

commenced. Its purpose was to secure the probation of the said will of
the 16th day of April, 1919 (Exhibit 1). To said petition Cornelio
Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina
Mamuyac presented their oppositions, alleging (a) that the said will is
a copy of the second will and testament executed by the said Miguel
Mamuyac; (b) that the same had been cancelled and revoked during
the lifetime of Miguel Mamuyac and (c) that the said will was not the
last will and testament of the deceased Miguel Mamuyac.

Upon the issue thus presented, the Honorable Anastacio R. Teodoro,

judge, after hearing the respective parties, denied the probation of
said will of April 16, 1919, upon the ground that the same had been
cancelled and revoked in the year 1920. Judge Teodoro, after
examining the evidence adduced, found that the following facts had
been satisfactorily proved:

That Exhibit A is a mere carbon of its original which remained in

the possession of the deceased testator Miguel Mamuyac, who
revoked it before his death as per testimony of witness Jose
Fenoy, who typed the will of the testator on April 16, 1919, and
Carlos Bejar, who saw on December 30, 1920, the original
Exhibit A (will of 1919) actually cancelled by the testator Miguel
Mamuyac, who assured Carlos Bejar that inasmuch as he had
sold him a house and the land where the house was built, he had
to cancel it (the will of 1919), executing thereby a new testament.
Narcisa Gago in a way corroborates the testimony of Jose
Fenoy, admitting that the will executed by the deceased (Miguel
Mamuyac) in 1919 was found in the possession of father Miguel
Mamuyac. The opponents have successfully established the fact
that father Miguel Mamuyac had executed in 1920 another will.
The same Narcisa Gago, the sister of the deceased, who was
living in the house with him, when cross-examined by attorney
for the opponents, testified that the original Exhibit A could not
be found. For the foregoing consideration and for the reason that
the original of Exhibit A has been cancelled by the deceased
father Miguel Mamuyac, the court disallows the probate of
Exhibit A for the applicant." From that order the petitioner
appealed.

The appellant contends that the lower court committed an error in not
finding from the evidence that the will in question had been executed
with all the formalities required by the law; that the same had been
revoked and cancelled in 1920 before his death; that the said will was
a mere carbon copy and that the oppositors were not estopped from
alleging that fact.

With reference to the said cancellation, it may be stated that there is

positive proof, not denied, which was accepted by the lower court, that
will in question had been cancelled in 1920. The law does not require
any evidence of the revocation or cancellation of a will to be
preserved. It therefore becomes difficult at times to prove the
revocation or cancellation of wills. The fact that such cancellation or
revocation has taken place must either remain unproved of be inferred
from evidence showing that after due search the original will cannot be
found. Where a will which cannot be found is shown to have been in
the possession of the testator, when last seen, the presumption is, in
the absence of other competent evidence, that the same was
cancelled or destroyed. The same presumption arises where it is
shown that the testator had ready access to the will and it cannot be
found after his death. It will not be presumed that such will has been
destroyed by any other person without the knowledge or authority of
the testator. The force of the presumption of cancellation or revocation
by the testator, while varying greatly, being weak or strong according
to the circumstances, is never conclusive, but may be overcome by
proof that the will was not destroyed by the testator with intent to
revoke it.

In view of the fat that the original will of 1919 could not be found after
the death of the testator Miguel Mamuyac and in view of the positive
proof that the same had been cancelled, we are forced to the
conclusion that the conclusions of the lower court are in accordance
with the weight of the evidence. In a proceeding to probate a will the
burden of proofs is upon the proponent clearly to establish not only its
execution but its existence. Having proved its execution by the
proponents, the burden is on the contestant to show that it has been
revoked. In a great majority of instances in which wills are destroyed
for the purpose of revoking them there is no witness to the act of
cancellation or destruction and all evidence of its cancellation perishes
with the testator. Copies of wills should be admitted by the courts with
great caution. When it is proven, however, by proper testimony that a
will was executed in duplicate and each copy was executed with all
the formalities and requirements of the law, then the duplicate may be
admitted in evidence when it is made to appear that the original has
been lost and was not cancelled or destroyed by the testator.
(Borromeo vs. Casquijo, G.R. No. L-26063.)1

After a careful examination of the entire record, we are fully persuaded

that the will presented for probate had been cancelled by the testator
in 1920. Therefore the judgment appealed from is hereby affirmed.
And without any finding as to costs, it is so ordered.
G.R. No. L-11823            February 11, 1918

CRISTINA SAMSON, DELFINA NAVAL, and SOR CONSOLACION

EUGENIO, petitioners-appellants, 
vs.
MONICA NAVAL, ROSA NAVAL, and CELESTINA
NAVAL, objectors-appellants.

Guillermo Lualhati for appellants.

Perfecto Gabriel for appellees.

ARAULLO, J.:

On September 20, 1915, attorney Perfecto Gabriel presented in the

Court of First Instance of the city of Manila for allowance as the will of
Simeona F. Naval, who died in said city two days previously, a
document executed by her of February 13, 1915, and in which he was
appointed executor. The case was recorded as No. 13386 and, after
hearing the petition for allowance filed by said executor, it was denied
on the ground that said document was not duly executed by the
deceased as her last will and testament, inasmuch as she did not sign
it in the presence of three witness and the two witnesses did not sign it
in the presence of each other. Thereafter the nieces and legatees of
the same deceased filed in the same court for allowance as her will,
another document executed by her on October 31, 1914, and,
consequently, the case was registered under another number, which
was No. 13579. The petition for allowance was opposed by Monica
Naval, Rosa Naval, and Cristina Naval on the ground that the will, the
allowance of which is asked, could not be allowed, because of the
existence of another will of subsequent date, executed during her
lifetime by the same Simeona F. Naval, and because said will has
been revoked by another executed subsequently by her during her
lifetime, and further, because sail will has not been executed with the
formalities required by existing laws. Trial having taken place, at which
evidence was adduced, the court on February 8, 1916, issued an
order, admitting said second document and ordering its allowance as
the last will and testament o said deceased. From said order the
opponents appealed to this court and transmitted to us the
corresponding declarations. Tow of the opponents, that is, Rosa and
Cristina Naval, assigned, as errors committed by the court, the
following:

1. The finding of the court that the will of October 31, 1914, has not
been revoked by that of February 13, 1915;

2. The act of the court in permitting the petitioner to institute and

proceed with the proceedings relative to the last case for the
allowance of the will, No. 13579, notwithstanding that proceedings had
already been had in the other case No. 13386 and final judgment
rendered therein; and

3. The act of the court in denying the motion for continuance of the
trial on the allowance of the will of October 31, 1914, which motion
was presented for the sole purpose of introducing evidence to show
the falsity of the signature appearing in said will and submitting said
signature to the Bureau of Science for analysis.

The other opponent, Monica Naval, assigned, besides the first two
errors already mentioned, the finding of the court that the disallowance
of the will of said deceased, dated February 13, 1915, on the ground
that is was not executed in such form that it could transmit real and
personal property, according to section 618 of the Code of Civil
Procedure, also had the effect of annulling the revocatory clause in
said will.

From the evidence it appears, as we have already stated, that the trial
court declared that the first document presented by the executor of the
deceased, Simeona F. Naval, as a will executed by her on February
13, 1915, and which was the subject-matter of case No. 13386 of said
court, could not be allowed, on the ground that it was not executed
with the requisites and formalities prescribed by law. Article 739 of the
Civil Code provides that a former will is by operation of law revoked by
another valid subsequent will, if the testator does not state in the later
will his desire that the former should subsist wholly or partly. In
harmony with this provision of substantive law, we find section 623 of
the Code of Civil Procedure, which provides that no will shall be
revoked, except by implication of law, otherwise than by some will,
codicil, or other writing executed as provided in case of wills.

Therefore, according to the legal provisions, in order that the will of

February 13, 1915, that is, the first document presented as the will of
the deceased Simeona F. Naval, could have the effect of revoking that
which was presented afterwards by the petitioners as executed by the
same deceased on October 31, 1914, that is, on a date previous to
the execution of the first, it was necessary and indispensable that the
later will, that is, that first presented for allowance, should be perfect
or valid, that it, executed as provided by lay in case of wills.

It also appears from the record that the opponents themselves

maintained that said later will, that is, that of February 13, 1915, was
not perfect, or executed as provided by law in case of wills, and the
Court of First Instance of Manila has so held in disallowing said
documents as the will of the deceased. So that it very evident that the
second will presented, that is, that of October 31, 1914, was not and
could not have been revoked by the first, and the court was not in
error in so holding in the order appealed from. We deem it
unnecessary to add a single word mere or cite well-known doctrines
and opinions of jurists in support of what has already been stated.

As to the second error assigned by the opponents, we believe it

sufficient to refer to what the court below stated in the judgment
appealed from. It is as follows:

The court finds no incongruency in the presentation of a prior will

when another will of subsequent date has been disallowed.
Disregarding the fact that the petitioners in this case were not
those who presented the will in No. 13386, in which the petition
was presented by the same D. Perfecto Gabriel as executor, it is
proper to take into account that the object of a petition for
allowance is to ask for an order declaring that a will has been
executed in accordance with the requisites and formalities
required by law. This is a question for the court to decide and is
out of the control of the party who presents the will. The
 allowance or disallowance of a will by a competent court
depends upon whether the evidence adduced at the trial shows
or does not show that the formalities required by law have been
complied with, and this cannot be determined in advance, as a
general rule, by the person who presents the testament. for he
has not always concurred in or seen the execution of the will.

If, therefore, the personal who presents a will and asks that if be
allowed does not secure its allowance, and he has in his
possession another will, or has information that another exists,
he does not contradict himself by asking for the allowance of the
will of earlier date merely because the later will was declared
invalid by the proper court. If in this case there is any who adopts
a contradictory position, it is the respondent himself, inasmuch
as in case No. 13386 he alleged, as a ground for the
disallowance of the will then presented, that it was not executed
in accordance with the law, and now he maintains the contrary,
for he claims that said will revoked that which is now presented.

With respect to the third error, it is beyond doubt that the court did not
commit it, for it appears that when the examination of the witness,
Cristina Samson, was finished and the court told Attorney Lualhati,
counsel for the respondents, to continue adducing his evidence, he
said he had no more proof, although he added that he would ask the
court to grant him permission to send the will of 1914 to the Bureau of
Science, which petition was objected to by the attorney for the
proponents and denied by the court. Immediately thereafter the
attorney for the opponents asked for the continuance of the trial, which
was also denied by the court, after objection was made by the
proponents. The attorney for the opponents excepted to said ruling.

Therefore, the petition of said attorney for the remission of said will to
the Bureau of Science, in the terms in which it was made to the court,
after ha had stated that he had no more evidence to present, signified
that he left it to the discretion of the court to grant it or not.
Furthermore, no exception was taken to the order to the order denying
this motion, and although the attorney for the opponents excepted to
the order denying the motion for continuance of the trial, such
exception was completely useless and ineffective for the purpose of
alleging before this court that the trial court erred in that respect, for
said resolution, being one of those left to the discretion of the court in
the exercise of it functions, according to section 141 of the Code of
Civil Procedure, it could not be the subject of an exception, unless the
court, in denying said motion, abused its discretional power and
thereby prejudiced the essential rights of the respondents, which is not
the case here.

The error which, in addition to the first two already mentioned, has
been assigned by the opponent and appellant, Monica Naval, and
refers, according to her, to the court's action in declaring that the
disallowance of the will of the deceased Simeona F. Naval, dated
February 13, 1915, for the reason that it was not executed in such
manner and from that it could transmit real and personal property,
according to the provisions of section 618 of the Code of Civil
Procedure, also had the effect of annulling the revocatory clause of
said will.

First of all, it is not true that the court made such statement in the
terms given in said assignment of error, that is, it is not true that the
court declared that, because said will was not executed in the form
required by law in order that it may transmit real and personal
property, according to the provisions of section 618, the disallowance
of said will also had the effect of annulling the revocatory clause
therein contained. In the order appealed from there is no declaration
or conclusion made in these terms. The court did not say that the
annulment of the revocatory clause in said will was the effect or
consequence of the fact that it was not allowed on the ground that it
was not executed in the form required by law in order that it may
transmit real and personal property. Referring to the construction,
given by the respondent to sections 618 and 623 of the Code of Civil
Procedure, to the effect that a subsequent will may revoke a previous
will, although the later will has not been allowed by the competent
court, it being sufficient that the intention of the testator to revoke the
previous will should be clearly expressed, and that, while the requisite
of allowance is necessary in order that it may transmit property from
one person to another, it is not necessary in order that it might
procedure other effects, for example, the effect of a revocatory clause,
or a clause of aknowledgment of a child, — what the court declared,
we repeat, was that although the revocation of a will should have been
effected, not by means of another will or codicil, but by mans of a
document, as authorized by said section 623, which document should
have the requisites and conditions fixed in section 618, the
presentation of the document to the court was necessary in order that
the latter might allow it, by declaring that it was executed with the
formalities required by law for the execution of a will, and finally
concluding that, just as to, is to be proved that the requisites of section
618 have been complied with in order that a will may be of value
through its allowance, so without such allowance the revocatory
clause like the other provisions of the will, has no value or effect
except to show extraneous matters, as, for example, the
acknowledgment of natural children, of some debt or obligation. In
such case, the document could produce effect, but not as will, but
simply as a written admission made by the person executing it. And It
is beyond doubt that the revocatory clause contained in a document,
like the present, which contains provisions proper of a will, as those
relating to legacies and distribution of the properties of the testator
after his death as well as the appointment of executors, is not matter
extraneous to the will, but merely a part thereof, intimately connected
with it as well as with the will or wills, the revocation of which is
declared in said clause; in short, the desire of the testator declared in
the revocatory clause is related to the desire of the same testator
expressed in the provisions of the testament in which said clause is
found and to that which he might have expressed in the testaments
which he may have previously executed. There is such relation
between the revocatory clause and the will which contains it, that if the
will does not produce legal effects, because it has not been executed
in accordance with the provisions of the law, neither would the
revocatory clause therein produce legal effects. And if, in the present
case, the so-called will of the deceased, Simeona F. Naval, dated
February 13, 1915, was not duly executed by her as her last will and
testament, ad declared by the court in its decision of November 19,
1915, in case No. 13386, for which reason its allowance was denied,
neither may it be maintained that the revocatory clause contained in
said will is the expression of the last will of said deceased. The
disallowance of the ill, therefore, produced the effect of annulling the
revocatory clause, not exactly because said will was not executed in
such from that it could transmit real and personal property, as
inaccurately alleged by the appellant, Monica Naval, to be the court's
finding, upon which said assignment of error is based, but because it
was proved that said will was not executed or signed with the
formalities and requisites required by section 618 of the Code of Civil
Procedure, a cause which also produces the nullity of the same will,
according to section 634 of said law; and of course what is invalid in
law can produce no effect whatever.

If the instrument propounded as a revocation be in form a will, it

must be perfect as such, and be subscribed and attested as is
required by the statute. An instrument intended to be a will, but
filing of its effect as such on account of some imperfection in its
structure or for want of due execution, cannot be set up for the
purpose of revoking a former will. (40 Cyc., p. 1177, and cases
cited therein.)

A subsequent will containing a clause revoking an earlier will

must, as a general rule, be admitted to probate before the clause
of revocation can have any effect, and the same kind, quality,
and method of proof is required for the establishment of the
subsequent will as was required for the establishment of the
former will. (40 Cyc., p. 1178, and cases cited therein.)

But admitting that the will said to have been executed by the
deceased Simeona F. Naval on February 13, 1915, notwithstanding its
inefficacy to transmit property for the reason that it has not been
executed, according to the provisions of said section 618 of the Code
of Civil Procedure, should be considered as executed by her in order
to express her desire, appearing in one of its clauses, to revoke and
annul any previous will of hers, as stated in clause 13, this being the
argument adduced by the appellant, Monica naval, in support of said
assignment of error — neither could it be maintained that, the
allowance of said will having been denied by the court on November
11, 1915, said revocatory clause subsists and the intention expressed
by the testratrix therein is valid and legally effective, for the simple
reason that, in order that a will may be revoked by a document, it is
necessary, according to the conclusive provisions of section 623 of
said procedural law, that such documents be executed according to
the provisions relating to will in section 618, and the will in question,
or, according to the respondent, the so-called document, was not
executed according to the provisions of said section, according to the
express finding of the trial court in its order of November 11, 1915,
acquiesced in by the opponent herself, and which is now final and
executory. Therefore, the disallowance of said will and the declaration
that it was not executed according to the provisions of law as to wills,
produced the effect of annulling said revocatory clause.

In support of the argument advanced in her brief said appellant,

Monica Naval, cites the declaration made by the Supreme Court of
Massachusetts in Wallis vs. Wallis (114 Mass., 510, 512)m which,
according to the appellant herself, was in the following terms:

If it be shown that a later will was duly executed and attested,

containing a clause expressly revoking former will nothing else
appearing as to its contents, it is nevertheless good as a
revocation, but it can only be made available by setting it up in
opposition to the probate of the earlier will.

In the decision of said case the finding referred to be by the appellant

appears not to have been made by the Supreme Court of
Massachusetts.

The syllabus of said decision says:

When a will revoking a former will is in existence, it must be

established in the Probate Court; but when it has been lost or
destroyed, and its contents cannot be sufficiently proved to admit
it to probate, it may nevertheless be availed of as a revocation in
opposition to the probate of the will revoked by it.:
And in the body of the decision there is a declaration, to which the
appellant must have desired to refer in her brief, which declaration
says:

If it can be proved that a later will was duly executed, attested

and subscribed, and that it contained a clause expressly
revoking all former wills, but evidence of the rest of its contents
cannot be obtained, it is nevertheless a good revocation; and it
can be made available only by allowing it to be set up in
opposition to the probate of the earlier will,. . .

The facts of the case in which this decision was rendered are different
from the facts of the case at bar. That was a case concerning a will
filed by one of the children of the testatrix, Mary Wallis, as her last will,
to the allowance of which another son objected, alleging that said will
had been revoked by another executed by the same deceased
subsequent to the will that was filed, and that it had been fraudulently
destroyed or taken by his brother, the proponent and his wife, or by
one of them, in order to deprive him of the rights conferred upon him
by said will. Therefore, the will said to have been subsequently
executed by the testatrix and in which, according to the oppositor, the
clause revocatory of the former will appeared, was not presented by
said oppositor, while the previous will was, in the contrary, filed for
allowance by the son of the testratrix, who appeared to be favored
therein, said oppositor having alleged that the subsequent will, that is,
that containing the revocatory clause, had been drawn, subscribed
and executed in accordance with the provisions of the law, a fact
which he was ready to prove just as he was ready to prove that it had
been destroyed or suppressed by the proponent, his brother and his
wife, or one of them. In the case at bar, the subsequent will containing
the revocatory clause of the previous will executed by the deceased
Simeona F. Naval was presented to the court for allowance and it was
disallowed — a fact which gave opportunity to the legatees of said
deceased to present a previous will executed by her on October 31,
1914, and said two wills having been successively presented,
evidence as to them was also successively adduced for their
allowance by the court.
Therefore, the declaration made by the Supreme Court of
Massachusetts in Wallis vs. Wallis (supra), to the effect that a
subsequent will containing a revocatory clause of previous wills,
constitutes a valid revocation and may be used in objecting to the
allowance of the previous will, even when it is not possible to obtain
proof of the remainder of the contents of said subsequent will, refers
to the case in which the latter had been taken away, destroyed or
suppressed, and it was impossible to present it for allowance, but
requires for that purpose that it be proved that said subsequent will
has been executed, attested, and subscribed in due form and that it
contained, furthermore, that revocatory clause. This is what said
declaration and, in relation thereto, also what the syllabus of the
decision thereof clearly says. The court, through Chief Justice Gray, in
giving its opinion, thus began by saying:

By our law, no will can be revoked by any subsequent

instrument, other than a "will, codicil or writing, signed, attested
and subscribed in the manner provided for making a will." And
when an instrument of revocation is in existence and capable of
being propounded for probate, its validity should be tried by a
direct proceeding instituted for the purpose in the Probate Court.
(Loughton vs. Atkins, 1 Pick., 535.)

It results, therefore, that while perfect parity does not exist between
the case decided by the Supreme Court of Massachusetts, to which
the appellant Monica Naval refers, and that which is not before us, it is
wholly unquestionable that, whether the case deals with a subsequent
will revocatory of a previous will, which may possibly be presented to
a probate court for allowance, or of a subsequent will, also revocatory
of a previous will, which could not be presented for allowance,
because it has been taken or hidding, or mislaid — in order that such
will may constitute a valid revocation and be utilized in the second
case, although the remaining provisions may not be proven, in
opposition to the allowance of the previous will, it is necessary to
prove that it was executed, attested, and subscribed in due form, and,
of course, also that it contained a clause expressly revoking the
previous will, or, what is the same thing, that said subsequent will has
been executed according to the provisions relating to wills, as
expressed in section 623 of the procedural law in force. There can be
no doubt whatever that this applies when the revocation had been
made to appear in a writing or document susceptible of presentation
for allowance, like the so-called will of the deceased Simeona F.
Naval, dated February 13, 1915, and considered by said respondent
and appellant as a mere document of revocation, for, as already seen
in said decision invoked by her, the requisite as to signing, attesting,
and subscribing in the form, required by law for the execution of wills
in order that it may revoke a previous will, is also required in a will as
well as in a codicil, or in a writing, and in referring to a document of
revocation, it is also expressed that its validity should be proved in a
direct proceeding, instituted for the purpose in a probate court. In the
case at bar, the document, executed by the deceased, Simeona F.
Naval, as her last will and testament, dated February 13, 1915, has
been presented for allowance; it validity has been proved by means of
said procedure in the Court of Probate of Manila, and that court
denied its allowance, on the ground that the document in question had
not been duly executed by the deceased, as her last will and
testament, because she did not sign in the presence of three
witnesses, and two of these witnesses did not sign in the presence of
each other, or what is the same thing, that said document has not be
attested and subscribed in the manner established by law for the
execution of will, or, in other words, as provided by law in case of wills,
as stated by section 623 of said procedural law, and this resolution
was acquiesced in, as already stated, by the respondents in this case,
and is, therefore, final and executory.

In conclusions, the doctrine laid down in the decision of the Supreme

Court of Massachusetts, invoked by the appellant, Monica Naval, is in
conformity with the provision of said section 623 of our procedural law
and article 739 of the Civil Code, and the will executed by the
deceased Simeona F. Naval on October 31, 1914, not having been
revoked, according to these provisions, by the will presented and
alleged as executed by the same deceased subsequently on February
13, 1915, the allowance of which was denied by the Court of First
Instance of Manila, the court below was not in error in ordering the
allowance of said will, that is, of that of October 31, 1914, as the last
will and testament of said deceased. Wherefore, the order appealed
from is affirmed, with the costs of this instance against the appellants.
So ordered.
G.R. No. L-2538             September 21, 1951

Testate Estate of the Deceased MARIANO MOLO Y LEGASPI.

JUANA JUAN VDA. DE MOLO, petitioner-appellee, 
vs.
LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants.

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

Delgado & Flores for appellee.

BAUTISTA ANGELO, J.:

This is an appeal from an order of the Court of First Instance of Rizal

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

Mariano Molo y Legaspi died on January 24, 1941, in the municipality

of Pasay, province of Rizal, without leaving any forced heir either in
the descending or ascending line. He was survived, however, by his
wife, the herein petitioner Juana Juan Vda. de Molo, and by his nieces
and nephew, the oppositors-appellants, Luz Gliceria and Cornelio, all
surnamed Molo, who were the legitimate children of Candido Molo y
Legaspi, deceased brother of the testator. Mariano Molo y Legaspi left
two wills, one executed on August 17, 1918, (Exhibit A) and another
executed on June 20, 1939. (Exhibit I). The later will executed in 1918.

On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court of

First Instance of Rizal a petition, which was docketed as special
proceeding No. 8022 seeking the probate of the will executed by the
deceased on June 20, 1939. There being no opposition, the will was
probated. However, upon petition filed by the herein oppositors, the
order of the court admitting the will to probate was set aside and the
case was reopened. After hearing, at which both parties presented
their evidence, the court rendered decision denying the probate of
said will on the ground that the petitioner failed to prove that the same
was executed in accordance with law.

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

I. The probate court erred in not holding that the present

petitioner voluntarily and deliberately frustrated the probate of
the will dated June 20, 1939, in special proceeding No. 8022, in
order to enable her to obtain the probate of another alleged will
of Molo dated 191.

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

III. The lower court erred in not holding that petitioner herein has
come to court with "unclean hands" and as such is not entitled to
relief.
 IV. The probate court erred in not holding that Molo's alleged will
of August 17, 1918 was not executed in the manner required by
law.

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

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

In their first assignment of error, counsel for oppositors contend that

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

These imputations of fraud and bad faith allegedly committed in

connection with special proceedings No. 8022, now closed and
terminated, are vigorously met by counsel for petitioner who contends
that to raise them in these proceedings which are entirely new and
distinct and completely independent from the other is improper and
unfair as they find no support whatsoever in any evidence submitted
by the parties in this case. They are merely based on the
presumptions and conjectures not supported by any proof. For this
reason, counsel, contends, the lower court was justified in
disregarding them and in passing them sub silentio in its decision.
A careful examination of the evidence available in this case seems to
justify this contention. There is indeed no evidence which may justify
the insinuation that petitioner had deliberately intended to frustrate the
probate of the 1939 will of the deceased to enable her to seek the
probate of another will other than a mere conjecture drawn from the
apparently unexpected testimony of Canuto Perez that he went out of
the room to answer an urgent call of nature when Artemio Reyes was
signing the will and the failure of petitioner later to impeach the
character of said witness in spite of the opportunity given her by the
court to do so. Apart from this insufficiency of evidence, the record
discloses that this failure has been explained by petitioner when she
informed the court that she was unable to impeach the character of
her witness Canuto Perez because of her inability to find witnesses
who may impeach him, and this explanation stands uncontradicted.
Whether this explanation is satisfactory or not, it is not now, for us to
determine. It is an incident that comes within the province of the
former case. The failure of petitioner to present the testimony of
Artemio Reyes at the hearing has also been explained, and it appears
that petitioner has filed because his whereabouts could not be found.
Whether this is true or not is also for this Court to determine. It is
likewise within the province and function of the court in the former
case. And the unfairness of this imputation becomes more glaring
when we stock of the developments that had taken place in these
proceedings which show in bold relief the true nature of the conduct,
behavior and character of the petitioner so bitterly assailed and held in
disrepute by the oppositors.

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

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

Having reached the foregoing conclusions, it is obvious that the court

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

The next contention of appellants refers to the revocatory clause

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

Counsel for petitioner meets this argument by invoking the doctrine

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

There is merit in this contention. We have carefully read the facts

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

A subsequent will, containing a clause revoking a previous will,

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

Apropos of this question, counsel for oppositors make the remark that,
while they do not disagree with the soundness of the ruling laid down
in the Samson case, there is reason to abandon said ruling because it
is archaic or antiquated and runs counter to the modern trend
prevailing in American jurisprudence. They maintain that said ruling is
no longer controlling but merely represents the point of view of the
minority and should, therefore, be abandoned, more so if we consider
the fact that section 623 of our Code of Civil Procedure, which
governs the revocation of wills, is of American origin and as such
should follow the prevailing trend of the majority view in the United
States. A long line of authorities is cited in support of this contention.
And these authorities hold the view, that "an express revocation is
immediately effective upon the execution of the subsequent will, and
does not require that it first undergo the formality of a probate
proceeding". (p. 63, appellants' brief .

While they are many cases which uphold the view entertained by
counsel for oppositors, and that view appears to be in controlling the
states where the decisions had been promulgated, however, we are
reluctant to fall in line with the assertion that is now the prevailing view
in the United States. In the search we have made of American
authorities on the subject, we found ourselves in a pool of conflicting
opinions perhaps because of the peculiar provisions contained in the
statutes adopted by each State in the subject of revocation of wills.
But the impression we gathered from a review and the study of the
pertinent authorities is that the doctrine laid down in the Samson case
is still a good law. On page 328 of the American Jurisprudence Vol.
57, which is a revision Published in 1948, we found the following
passages which in our opinion truly reflect the present trend of
American jurisprudence on this matter affecting the revocation of wills:

SEC. 471. Observance of Formalities in Execution of Instrument.

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

SEC, 472. Subsequent Unexecuted, Invalid, or Ineffective Will or

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

We find the same opinion in the American Law Reports, Annotated,

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

It is universally agreed that where the second will is invalid on

account of not being executed in accordance with the provisions
of the statute, or where the testator who has not sufficient mental
capacity to make a will or the will is procured through undue
influence, or the such, in other words, where the second will is
really no will, it does not revoke the first will or affect it in any
manner. Mort vs. Baker University (193-5) 229 Mo. App., 632, 78
S.W. (2d), 498.
These treaties cannot be mistaken. They uphold the view on which the
ruling in the Samson case is predicated. They reflect the opinion that
this ruling is sound and good and for this reason, we see no
justification for abondoning it as now suggested by counsel for the
oppositors.

It is true that our law on the matter (sec. 623, Code Civil Procedure)
provides that a will may be some will, codicil, or other writing executed
as proved in case of wills" but it cannot be said that the 1939 will
should be regarded, not as a will within the meaning of said word, but
as "other writing executed as provided in the case of wills", simply
because it was denied probate. And even if it be regarded as
any other writing within the meaning of said clause, there is authority
for holding that unless said writing is admitted to probate, it cannot
have the effect of revocation. (See 57 Am. Jur. pp. 329-330).

But counsel for oppositors contemned that, regardless of said

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

There is no evidence which may directly indicate that the testator

deliberately destroyed the original of the 1918 will because of his
knowledge of the revocatory clause contained in the will he executed
in 1939. The only evidence we have is that when the first will was
executed in 1918, Juan Salcedo, who prepared it, gave the original
and copies to the testator himself and apparently they remained in his
possession until he executed his second will in 1939. And when the
1939 will was denied probate on November 29, 1943, and petitioner
was asked by her attorney to look for another will, she found the
duplicate copy (Exhibit A) among the papers or files of the testator.
She did not find the original.
If it can be inferred that the testator deliberately destroyed the 1918
will because of his knowledge of the revocatory clause of the 1939
will, and it is true that he gave a duplicate copy thereof to his wife, the
herein petitioner, the most logical step for the testator to take is to
recall said duplicate copy in order that it may likewise be destroyed.
But this was not done as shown by the fact that said duplicate copy
remained in the possession of petitioner. It is possible that because of
the long lapse of twenty-one (21) years since the first will was
executed, the original of the will had been misplaced or lost, and
forgetting that there was a copy, the testator deemed it wise to
execute another will containing exactly the same testamentary
dispositions. Whatever may be the conclusion we may draw from this
chain of circumstances, the stubborn fact is that there is no direct
evidence of voluntary or deliberate destruction of the first will by the
testator. This matter cannot be inference or conjectur.

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

This doctrine is known as that of dependent relative revocation,

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

This is the doctrine of dependent relative revocation. The failure

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

We hold therefore, that even in the supposition that the destruction of

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

The remaining question to be determined refers to the sufficiency of

the evidence to prove the due execution of the will.

The will in question was attested, as required by law, by three

witnesses, Lorenzo Morales, Rufino Enriquez, and Angel Cuenca. The
first two witnesses died before the commencement of the present
proceedings. So the only instrumental witness available was Angel
Cuenca and under our law and precedents, his testimony is sufficient
to prove the due execution of the will. However, petitioner presented
not only the testimony of Cuenca but placed on the witness stand
Juan Salcedo, the notary public who prepared and notarized the will
upon the express desire and instruction of the testator, The testimony
of these witnesses shows that the will had been executed in the
manner required by law. We have read their testimony and we were
impressed by their readiness and sincerity. We are convinced that
they told the truth. Wherefore, the order appealed from is hereby
affirmed, with costs against the appellants.
1âwphïl.nêt
G.R. No. 17714             May 31, 1922

In the mater of the estate of Jesus de Leon. 

IGNACIA DIAZ, petitioner-appellant, 
vs.
ANA DE LEON, opponent-appellee.

Montinola, Montinola & Hontiveros and Jose Lopez Vito for appellant.
Francisco A. Delgado, Powell & Hill and Padilla & Treñas for appellee.

ROMUALDEZ, J.:

The only question raised in this case is whether or to the will executed
by Jesus de Leon, now, was revoked by him.

The petitioner denies such revocation, while the contestant affirms the
same by alleging that the testator revoked his will by destroying it, and
by executing another will expressly revoking the former.

We find that the second will Exhibit 1 executed by the deceased is not
cloth with all the necessary requisites to constitute a sufficient
revocation.

But according to the statute governing the subject in this jurisdiction,

the destruction of a will animo revocandi constitutes, in itself, a
sufficient revocation. (Sec. 623, Code of Civil Procedure.) lävvphì1·né+

From the evidence submitted in this case, it appears that the testator,
shortly after the execution of the first will in question, asked that the
same be returned to him. The instrument was returned to the testator
who ordered his servant to tear the document. This was done in his
presence and before a nurse who testified to this effect. After some
time, the testator, being asked by Dr. Cornelio Mapa about the will,
said that it had been destroyed.

The intention of revoking the will is manifest from the established fact
that the testator was anxious to withdraw or change the provisions he
had made in his first will. This fact is disclosed by the testator's own
statements to the witnesses Canto and the Mother Superior of the
Hospital where he was confined.

The original will herein presented for probate having been destroyed
with animo revocandi, cannot now be probated as the will and last
testament of Jesus de Leon. Judgement is affirmed with costs against
the petitioner. So ordered.
G.R. No. L-46078             May 25, 1939

In the matter of the will of the deceased Mauro Salvacion. 

GREGORIA REYNOSO, administratrix-appellant, 
vs.
JOSE E. TOLENTINO, guardian ad litem of the minors Maurito
and Remedios Aguila, 
JOAQUIN CAMPOSANO, guardian ad litem of the minor Corazon
Camposano, 
VALERIO SALVACION, NUMERIANO SALVACION, AMADEO
SALVACION, and MARTINA ALLA, legatees-appellants.

Feria and La O for administratrix and appellant.

Andres Laredo, Sumulong, Lavides and Sumulong, and Elias C.
Desembrana for legatees and appellants.

AVANCEÑA, C.J.:

Mauro Salvacion died on June 30, 1932 in the municipality of Lucena,

Province of Tayabas, without leaving any descendant or ascendant.
His widow, Gregoria Reynoso, who survived him, is now the
administratrix appointed in this testate proceeding.

The properties left by the deceased are conjugal in nature because

they were acquired during his marriage with his widow. He left a will
and a codicil upon his death, wherein he made a partition of the
conjugal properties between him and his widow, and disposed by way
of legacy of the half corresponding to him.

The attorney of the administration of this testate thereafter prepared

the partition of the properties left by the deceased between the widow
and the legatees.

The widow opposed the approval of this partition as to the coconut

trees, alleging that it is unequal not only as to the number of trees but
also as to the quality thereof. Over this opposition of the widow, the
court, without affording her an opportunity to substantiate her
opposition and present evidence in support thereof, approved the
partition. To this resolution the widow expected.

The legatees, on the other hand, also opposed the approval of the
partition in so far as it casts the burden of the widow's usufruct upon
one-half of what corresponds to each one. Moreover, these legatees
contend that the allowance received by the widow during the
liquidation of the conjugal properties should be charged against her in
so far as it exceeds the products of the properties allotted to her. The
court also overruled this opposition and approved the partition in this
respect.

In so far as it refers to the appeal of the widow, we are of the opinion

that the resolution of the court, approving the partition, is erroneous.
The court should have substantiated the opposition of the widow and
should have given her an opportunity to adduce evidence in its
support. However, the court, relying only upon the fact that the
partition was made in accordance with the will of the deceased,
approved it. The will, in so far as the the testator alone made therein a
partition of the conjugal properties by assigning to himself those which
he liked and to the wife those which she did not like, is illegal. The
conjugal property is one between husband and wife wherein each
one, except as to the administration thereof, has equal rights. Each
one has a right to one-half of these properties and each one occupies
the same position as to its ownership. It is an encroachment upon
these rights of each of the spouses if one of them could designate
which and how much these properties should correspond to him. Any
of this spouses is entitled to be heard in the partition of the conjugal
properties in order to defend his or her equal share.

As to the appeal of the legatees, the theory upon which it is based in

plainly erroneous. The usufruct which article 837 of the Civil Code
gives to the widow is upon one-half of the properties of the deceased
spouse and not upon the properties of the widow herself, such as the
half of the conjugal properties corresponding to her.

The contention that the allowance received by the widow should be

charged against her share in the conjugal properties in so far as it
exceeds the fruits of the properties corresponding to her, is perfectly
legal. But we are precluded from ruling upon this point, because there
is neither showing nor allegation as to the amount of the fruits of the
properties during the liquidation. Without this, we are not in a position
to decide whether or not the widow received by way of allowance
more than that corresponding to her from the fruits of the properties.

In view of the foregoing, the appealed judgment is modified in the

sense that the court should permit the widow to substantiate her
opposition and to present evidence in support thereof, and is affirmed
in all other respects, with the costs to the defendants as appellants
and legatees. So ordered.
G.R. No. L-35993         December 19, 1932

In re Estate of the deceased Gregorio Tolentino. ADELAIDA

TOLENTINO, petitioner-appellee, 
vs.
NATALIA FRANCISCO, ET AL., oppositors-appellants.

Laurel, Del Rosario & Lualhati for appellants.

Eduardo Gutierrez Repide for appellee.

STREET, J.:

This petition was filed in the Court of First Instance of Manila by

Adelaida Tolentino de Concepcion, for the purpose of procuring
probate of the will of Gregorio Tolentino, deceased, who died at the
hand of an assassin, in his home, No. 2541 Lico Street, in the District
of Santa Cruz, Manila, on November 9, 1930. In the inception of the
proceedings Eugene de Mitkiewicz was appointed special
coadministrator, and he joined as coplaintiff in the petition. Opposition
was made to the probate of the will by Ciriaco Francisco, Natalia
Francisco, and Gervasia Francisco, all cousins of the deceased and
residents of the City of Manila. Upon hearing the cause the trial court
overruled the opposition, declared the will to have been properly
executed, and allowed the probate thereof. From this order the three
opponents appealed.

At the time of his death on November 9, 1930, Gregorio Tolentino was

sixty-six years of age. During the more vigorous years of his life he
had been married to Benita Francisco, but she predeceased him years
ago. By their industry and frugality the two had accumulated a very
considerable estate which does not appear to have suffered any
material diminution in the years of Tolentino's widowhood. The pair
had no children, and the generous instincts of the survivor prompted
him to gather around him in his comfortable and commodious home a
number of his wife's kin; and by him various younger members of the
connection were supported and educated. At one time Tolentino
contemplated leaving his property mainly to these kin of his wife, of
the surname Francisco; and for several years prior to his death, he
had kept a will indicating this desire. However, in October, 1930,
strained relations, resulting from grave disagreements, developed
between Tolentino and the Francisco relations and he determined to
make a new will in which, apart from certain legacies in favor of a few
individuals, the bulk of his estate, worth probably about P150,000,
should be given to Adelaida Tolentino de Concepcion, as his universal
heir.

To this end, on October 17, 1930, Tolentino went to the office of

Eduardo Gutierrez Repide, an attorney at 97 General Luna, Manila,
and informed him that he wanted to make a new will and desired
Repide to draft it for him. After the necessary preliminary inquiries had
been made, the attorney suggested to Tolentino to return later,
bringing a copy of the will previously made. Accordingly, on the
second day thereafter, Tolentino again appeared in Repide's office
with the prior will; and the attorney proceeded to reduce the new will to
proper form. As the instrument was taking shape Tolentino stated that
he wanted the will to be signed in Repide's office, with Repide himself
as one of the attesting witnesses. For the other two witnesses
Tolentino requested that two attorneys attached to the office, namely,
Leoncio B. Monzon and Ramon L. Sunico, should serve. For this
reason, in the draft of the will, as it at first stood, the names of the
three above mentioned were inserted as the names of the three
attesting witnesses.

When the instrument had been reduced to proper form it was placed
in the hands of Tolentino, the testator, in order that he might take it
home to reflect over its provisions and consider whether it conformed
in all respects to his wishes. On the morning of October 21 he again
appeared in Repide's office and returned to him the draft of the will
with certain corrections. Among the changes thus made was the
suppression of the names of Monzon, Sunico, and Repide as attesting
witnesses, these names being substituted by the names of Jose
Syyap, Agustin Vergel de Dios, and Vicente Legarda. The explanation
given by the testator for desiring this change was that he had met
Jose Syyap on the Escolta, the day before, and had committed the
indiscretion of communicating the fact that he (Tolentino) was having
a new will made in which Monzon, Sunico, and Repide would appear
as the attesting witnesses. Now Syyap had been the draftsman of the
former will of Tolentino, and in this same will the name of Syyap
appeared as one of the attesting witnesses, the other two being
Vicente Legarda and Vergel de Dios. When, therefore, Syyap learned
that a new will was being drawn up without his intervention, he
showed profound disappointment, saying to Tolentino that he
considered it a gross offense that he, Legarda, and Vergel de Dios
should be eliminated as witnesses to the new will. Upon this
manifestation of feeling by Syyap, Tolentino decided to avail himself of
Syyap, Legarda, and Vergel de Dios as witnesses to this will also, and
he therefore requested Repide to change the names of the attesting
witnesses. After this point had been settled Tolentino stated that he
would request Syyap, Legarda, and Vergel de Dios to appear at the
office of Repide for the purpose of signing the will. To this end
Tolentino went away but returned later saying that he had spoken to
Syyap about it and that the latter strenuously objected, observing that
the will should be signed at a chop-suey restaurant ( panciteria).
Tolentino further stated to his attorney in this conversation that he had
arranged with Syyap and the other two intending witnesses to meet at
five o'clock in the afternoon of the next day, which was October 22, for
the purpose of executing the will.

Pursuant to these instructions Repide made the desired changes in

the will; and just before twelve o'clock noon of the next day Tolentino
returned to Repide's office and received from him the criminal
document with a carbon copy thereof. Repide advised the testator that
the copy should be executed with the same formality as the original in
order that the intention of the testator should not be frustrated by the
possible loss or destruction of the original.
lawphil.net

It is a custom in the office of Repide not to number the consecutive

pages of a will, on the typewriting machine, the duty of numbering the
pages being left to the testator himself. This precaution appears to
have been born of experience, and has been adopted by Repide to
prevent the possible destruction of a will by the mere erasure of the
figures or letters indicating the pagination, — a disaster which, in
Repide's experience, had occurred in at least one case. Accordingly,
upon delivering the completed will and carbon copy to the testator,
Repide took particular pains to instruct the testator to write the
consecutive paging of both original and duplicate before signing the
instrument.

At his interview the testator suggested to Repide that the latter should
also go to the place where the will was to be executed, so that he
might be present at the formality. The attorney replied that it was
impossible for him to do so as he had another engagement for the
hour indicated, which would prevent his attendance.

At about 4:30 p. m. on the same day, which was October 22, Tolentino
started in his car to pick up Syyap and Vergel de Dios at their
respective homes on Antipolo and Benavides streets. He then caused
his chauffeur to drive with the three to La Previsora Filipina, on Rizal
Avenue, where Vicente Legarda, the third intending witness was to be
found. Arriving at this place, the three entered the office of Legarda,
who was manager of the establishment, and they were invited to take
seats, which they did. Tolentino then suggested that the three should
go as his guests to a panciteria, where they could take refreshments
and the will could be executed. Legarda replied that he must decline
the invitation for he had an engagement to go to the Cosmos Club the
same afternoon. Upon this Tolentino asked Legarda to permit the will
to be signed in his office, and to this request Legarda acceded.

Tolentino thereupon drew two documents from his pocket saving that
it was his last will and testament, done in duplicate, and he proceeded
to read the original to the witnesses. After this had been completed,
Legarda himself took the will in hand and read it himself. He then
returned it to Tolentino, who thereupon proceeded, with pen and ink,
to number the pages of the will thus, "Pagina Primera", "Pagina
Segunda", etc. He then paged the duplicate copy of the will in the
same way. He next proceeded to sign the original will and each of its
pages by writing his name "G. Tolentino" in the proper places.
Following this, each of the three witnesses signed their own respective
names at the end of the will, at the end of the attesting clause, and in
the left margin of each page of the instrument. During this ceremony
all of the persons concerned in the act of attestation were present
together, and all fully advertent to the solemnity that engaged their
attention.

After the original of the will had been executed in the manner just
stated, the testator expressed his desire that the duplicate should be
executed in the same manner. To this Syyap objected, on the ground
that it was unnecessary; and in this view he was supported by Vergel
de Dios, with the result that the wishes of the testator on this point
could not be carried out. As the party was about to break up Tolentino
used these words: "For God's sake, as a favor, I request you not to let
any one know the contents of this will." The meeting then broke up
and Tolentino returned Syyap and Vergel de Dios to their homes in his
car. He then proceeded to the law office of Repide, arriving about 6:15
p. m. After preliminary explanations had been made, Tolentino
requested Repide to keep the will overnight in his safe, as it was
already too late to place it in the compartment which Tolentino was
then renting in the Oriental Safe Deposit, in the Kneedler Building. In
this connection the testator stated that he did not wish to take the will
to his home, as he knew that his relatives were watching him and
would take advantage of any carelessness on his part to pry into his
papers. Also, in this conversation Tolentino informed Repide of the
refusal of Syyap to execute the duplicate of the will.

After a good part of an hour had thus been spent at Repide's office by
the testator and after the original of the will had been deposited in
Repide's safe, Tolentino took the attorney to the latter's residence in
Ermita, and then returned to his own home, where he remained
without again going out that night. But promptly at nine o'clock the
next morning Tolentino presented himself at Repide's office for the
purpose of securing the will. Repide happened to be out and Tolentino
went away, but again returned the next day and received the will. With
the instrument thus in his possession he proceeded at once to the
Oriental Safe Deposit and there left the instrument in his private
compartment, No. 333, in which place it remained until withdrawn
some two weeks later by order of the court.

On the morning of November 9, 1930, Gregorio Tolentino was found

dead in his bed, having perished by the hands of an assassin.

The peculiarity of this case is that, upon the trial of this proceeding for
the probate of the will of the decedent, two of the attesting witnesses,
Jose Syyap and Vergel de Dios, repudiated their participation in the
execution of the will at the time and place stated; and while admitting
the genuineness of their signatures to the will, pretended that they had
severally signed the instrument, at the request of the testator, at
different places. Thus Syyap, testifying as a witness, claimed that the
testator brought the will to Syyap's house on the afternoon of October
21 — a time, be it remembered, when the will had not yet left the
hands of the draftsman — and upon learning that Syyap could not be
present at the time and place then being arranged for the execution of
the will, he requested Syyap, as a mere matter of complaisance, to
sign the will then, which Syyap did. Vergel de Dios has another story
to tell of isolated action, claiming that he signed the will in the evening
of October 22 at the Hospital of San Juan de Dios in Intramuros.

We are unable to give any credence to the testimony of these two

witnesses on this point, the same being an evident fabrication
designed for the purpose of defeating the will. In the first place, the
affirmative proof showing that the will was properly executed is
adequate, consistent, and convincing, consisting of the testimony of
the third attesting witness, Vicente Legarda, corroborated by Miguel
Legarda and Urbana Rivera, two disinterested individuals, employees
of La Previsora Filipina, who were present in Legarda's office when
the will was executed and who lent a discerning attention to what was
being done. In the second place, each of the seven signatures affixed
to his will by Syyap appear to the natural eye to have been made by
using the same pen and ink that was used by Legarda in signing the
will. The same is also probably true of the seven signatures made by
Vergel de Dios. This could hardly have happened if the signatures of
Syyap and Vergel de Dios had been affixed, as they now pretend, at
different times and places. In the third place, Both Syyap and Vergel
de Dios are impeached by proof of contradictory statements made by
them on different occasions prior to their appearance as witnesses in
this case. In this connection we note that, after the murder of Gregorio
Tolentino, and while the police authorities were investigating his
death, Nemesio Alferez, a detective, sent for Syyap and questioned
him concerning his relations with the deceased. Upon this occasion
Syyap stated that Gregorio Tolentino had lately made a will, that it had
been executed at the office of La Previsora Filipina under the
circumstances already stated, and that he himself had served as one
of the attesting witnesses.

With respect to Vergel de Dios we have the following fact: On the day
that Gregorio Tolentino was buried, Ramon Llorente, a member of the
city police force, was sent out to the cemetery in order that he might
be present and observe the demeanor on that occasion of such
Tolentino's kin as might be present. Llorente arrived before the funeral
cortege, having been taken out to the cemetery by Repide. While the
two were waiting at the cemetery, Llorente noted the presence of
Vergel de Dios, he requested the policeman to introduce him. In the
conversation that ensued Vergel de Dios stated with considerable
detail that Gregorio Tolentino had made a will just before his death,
that it was executed at La Previsora Filipina, and that he was one of
the witnesses who attested the instrument at that time and place.

Again, on a certain occasion subsequent to the death of Gregorio

Tolentino, Juan Concepcion the husband of Adelaida Tolentino,
accompanied by Genoveva de Mendoza, called upon Vergel de Dios,
and in the conversation that resulted Vergel de Dios told them that the
will was properly executed, that he was one of the attesting witnesses,
and that it had been signed by all of them in the office of La Previsora
Filipina.

These circumstances and other incidents revealed in the proof leave

no room for doubt in our mind that Syyap and Vergel de Dios have
entered into a conspiracy between themselves, and in concert with the
opponents, to defeat the will of Gregorio Tolentino although they are
well aware that said will was in all respects properly executed; and the
trial court, in our opinion, committed no error in admitting the will to
probate.

When a will is contested it is the duty of the proponent to call all of the
attesting witnesses, if available but the validity of the will in no wise
depends upon the united support of the will by all of those witnesses.
A will may be admitted to probate notwithstanding the fact that one or
more of the subscribing witnesses do not unite with the other, or
others, in proving all the facts upon which the validity of the will rests.
(Fernandez vs. Tantoco, 49 Phil., 380.) It is sufficient if the court is
satisfied from all the proof that the will was executed and attested in
the manner required by law. In this case we feel well assured that the
contested will was properly executed and the order admitting to it
probate was entirely proper.

The order appealed from will therefore be affirmed, with costs against
the appellants. So ordered.
G.R. No. 45629           September 22, 1938

ANTILANO G. MERCADO, petitioner, 
vs.
ALFONSO SANTOS, Judge of First Instance of
Pampanga, respondents.
ROSARIO BASA DE LEON, ET AL., intervenors.

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

Esperanza de la Cruz and Heracio Abistao for respondents.
Sotto and Sotto for intervenors.

LAUREL, J.:

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

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

Petitioner contends (1) that the probate of the will of his deceased wife
is a bar to his criminal prosecution for the alleged forgery of the said
will; and, (2) that he has been denied the constitutional right to a
speedy trial.

1. Section 306 of our Code of Civil Procedure provides as to the effect

of judgments.

SEC. 306. Effect of judgment. — The effect of a judgment or final

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

1. In case of a judgment or order against a specific thing, or in

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

xxx           xxx           xxx

(Emphasis ours.)

Section 625 of the same Code is more explicit as to the

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

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

. . . The decree of probate is conclusive with respect to the due

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

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

The probate of a will by the probate court having jurisdiction

thereof is usually considered as conclusive as to its due
execution and validity, and is also conclusive that the testator
was of sound and disposing mind at the time when he executed
the will, and was not acting under duress, menace, fraud, or
undue influence, and that the will is genuine and not a forgery.
(Emphasis ours.)

As our law on wills, particularly section 625 of our Code of Civil

Procedure aforequoted, was taken almost bodily from the Statutes of
Vermont, the decisions of the Supreme Court of the State relative to
the effect of the probate of a will are of persuasive authority in this
jurisdiction. The Vermont statute as to the conclusiveness of the due
execution of a probated will reads as follows.
 SEC. 2356. No will shall pass either real or personal estate,
unless it is proved and allowed in the probate court, or by appeal
in the county or supreme court; and the probate of a will of real
or personal estate shall be conclusive as to its due execution.
(Vermont Statutes, p. 451.)

Said the Supreme Court of Vermont in the case of Missionary

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

The probate of a will in this jurisdiction is a proceeding in rem. The

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

The proceeding for the probate of a will is one in rem (40 Cyc.,

1265), and the court acquires jurisdiction over all the persons
interested, through the publication of the notice prescribed by
section 630 of the Code of Civil Procedure, and any order that
may be entered therein is binding against all of them.

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

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

Vermont held.

In this State the probate of a will is a proceeding in rem being in

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

Section 333, paragraph 4, of the Code of Civil Procedure establishes

an incontrovertible presumption in favor of judgments declared by it to
be conclusive.

SEC. 333. Conclusive Presumptions. — The following

presumptions or deductions, which the law expressly directs to
be made from particular facts, are deemed conclusive.

xxx           xxx           xxx

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

to be conclusive.

Conclusive presumptions are inferences which the law makes so

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

The majority decision of the Court of Appeals cites English decisions

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

A judgment admitting a will to probate cannot be attacked

collaterally although the will was forged; and a payment to the
executor named therein of a debt due the decedent will
discharge the same, notwithstanding the spurious character of
the instrument probated. It has also been held that, upon an
indictment for forging a will, the probate of the paper in question
is conclusive evidence in the defendants favor of its genuine
character. But this particular point has lately been ruled
otherwise.

It was the case of Rex vs. Buttery, supra, which induced the Supreme

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

The petitioner cites the case of State vs. McGlynn (20 Cal., 233,

decided in 1862), in which Justice Norton of the Supreme Court of
California, makes the following review of the nature of probate
proceedings in England with respect to wills personal and real
property.

In England, the probate of wills of personal estate belongs to the

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

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

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

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

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

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

In the case of State vs. McGlynn, the Attorney General of California

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

The fact that a will purporting to be genuine will of Broderick,

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

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

The American and English cases show a conflict of authorities on the

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

We hold, therefore, that in view of the provisions of sections 306, 333

and 625 of our Code of Civil Procedure, criminal action will not lie in
this jurisdiction against the forger of a will which had been duly
admitted to probate by a court of competent jurisdiction.

The resolution of the foregoing legal question is sufficient to dispose of

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

2. The Constitution of the Philippines provides that "In all criminal

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

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

Philippine organic and statutory law expressly guarantee that in

all criminal prosecutions the accused shall enjoy the right to have
a speedy trial. Aurelia Conde, like all other accused persons, has
a right to a speedy trial in order that if innocent she may go free,
and she has been deprived of that right in defiance of law.
Dismissed from her humble position, and compelled to dance
attendance on courts while investigations and trials are arbitrarily
postponed without her consent, is palpably and openly unjust to
her and a detriment to the public. By the use of reasonable
diligence, the prosecution could have settled upon the
appropriate information, could have attended to the formal
 preliminary examination, and could have prepared the case for a
trial free from vexatious, capricious, and oppressive delays.

In People vs. Castañeda and Fernandez, supra, this court found that
the accused had not been given a fair and impartial trial. The case
was to have been remanded to the court a quo for a new trial before
an impartial judge. This step, however, was found unnecessary. A
review of the evidence convinced this court that a judgment of
conviction for theft, as charged, could not be sustained and, having in
view the right to a speedy trial guaranteed by the Constitution to every
person accused of crime, entered a judgment acquitting the accused,
with costs de oficio. We said.

. . . The Constitution, Article III, section 1, paragraph 17,

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

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

Se infiere de los preceptos legales transcritos que todo acusado

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

Esguerra vs. De la Costa, supra, was a petition for mandamus to

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

We are again called upon to vindicate the fundamental right to a

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

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

It may be true, as seems admitted by counsel for the intervenors, in

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

Counsel for the intervenors contend — and the contention is sustained

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

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

And in the dissenting opinion, we find the following opening

paragraph:

We cannot join in a decision declining to stop a prosecution that

has dragged for about five years and caused the arrest on four
 different occasions of a law abiding citizen for the alleged
offense of falsifying a will that years be competent jurisdiction.

From the view we take of the instant case, the petitioner is entitled to
have the criminal proceedings against him quashed. The judgment of
the Court of Appeals is hereby reversed, without pronouncement
regarding costs. So ordered.
 [G.R. No. L-5405.  January 31, 1956.]
ERNESTO M. GUEVARA, Petitioner, vs. ROSARIO GUEVARA and PEDRO C. QUINTO, Respondents.
 
DECISION
CONCEPCION, J.:
This is a petition for review by certiorari of a decision of the Court of Appeals. The pertinent facts are set
forth in said decision, from which we quote: chanroblesvirtua llawlibrary

“This case being the sequel to, and aftermath of, a previous litigation between the parties that reached
the Supreme Court, through the former Court of Appeals, it becomes necessary to restate the essential
antecedent facts to view the issues in proper perspective. For this purpose, it is important to recall that
on August 26, 1931, Victorino L. Guevara, a resident of Bayambang, Pangasinan, executed a will (Exhibit
A), distributing assorted movables and a residential lot among his children, Rosario and Ernesto
Guevara, and his stepchildren, Vivencio, Eduvigis, Dionista, Candida, and Pio Guevara. To his second wife
Augustia Posadas, the testator bequeathed, in addition to various movables, a portion of 25 hectares to
be taken out of a 259 odd hectare parcel outlined in Plan Psu-68618, plus another five (5) hectares in
settlement of her widow’s usufruct. The balance of the 259 odd hectares he distributed as follows: chanroblesvirtuallawlibrary

100 hectares reserved for disposal during the testator’s lifetime and for payment of his debts and family
expenses;
108.0854 hectares to his legitimate son Ernesto Guevara, including therein 43.2342 hectares by way of
mejora;
21.6171 hectares to ‘mi hija natural reconocida Rosario Guevara.’
Ernesto Guevara was appointed executor without bond.
On July 12, 1933, the same testator executed a deed of sale in favor of Ernesto Guevara, conveying to
the latter the southern half of the 259-hectare lot heretofore mentioned, and expressly recognized
Ernesto Guevara as owner of the northern half.
Prior to this sale, on November 1, 1932, Victorino and his son Ernesto had jointly applied for registration
of the big parcel (case No. 15174), but in view of the sale from the former to the latter, the decree was
issued in the name of Ernesto Guevara exclusively and for the whole tract, a certificate of title (No.
51691 of Pangasinan) being issued in his sole name on October 12, 1933.
Fifteen days previously, i.e., on September 27, 1933, Victorino Guevara died, but his will was not filed for
probate. About four years later, Rosario Guevara, claiming to be a recognized natural child of the
deceased Victorino, and on the assumption that he had died intestate, brought suit against Ernesto
Guevara to recover 423,492 square meters of the tract covered by certificate of title No. 51691 as the
portion that should correspond to her (Rosario) by way of legitime.
The case reached the former Court of Appeals in due course and was decided in Rosario Guevara’s favor
(Exhibit E);  but upon certiorari, the Supreme Court modified the judgment in December, 1943, as
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follows (Exhibit F);

‘Wherefore, that part of the decision of the Court of Appeals which declares in effect that
notwithstanding exhibit 2 and the issuance of original certificate of title No. 51691 in the name of
Ernesto M. Guevara, one-half of the land described in said certificate of title belongs to the estate of
Victorino L. Guevara and the other half to Ernesto M. Guevara in consideration of the latter’s
assumption of the obligation to pay all the debts of the deceased, is hereby affirmed;  but the chan roblesvirtualawlibrary

judgment of said court insofar as it awarded any relief to the Respondent Rosario Guevara in this action
is hereby reversed and set aside, and the parties are hereby ordered to present the document Exhibit A
to the proper court for probate in accordance with law, without prejudice to such action as the
provincial fiscal of Pangasinan may take against the responsible party or parties under section 4 of Rule
76. After the said document is approved and allowed by the court as the last will and testament of the
deceased Victorino L. Guevara, the heirs and legatees herein named may take such action, judicial or
extrajudicial, as may be necessary to partition the estate of the testator, taking into consideration the
pronouncements made in part II of this opinion. No finding as to costs in any of the three instances.’
(Appellant’s Brief, pp. 13-14.)
Claiming to act pursuant to the foregoing decision, Rosario Guevara commenced on October 5, 1945,
special proceedings No. 2646 in the Court of First Instance of Pangasinan for the probate of the will of
Victorino Guevara. In paragraph 10 of the petition, it was alleged: chanroblesvirtuallawlibrary

‘10.  Que dicho testamento, o sus disposiciones testamentarias, ha sido de jure revocado, o revocados,
en cuanto a la parcela de terreno de 259 hectareas descrita en dicho testamento, por haber el testador
enajenado o dispuesto intervivos de la misma en la forma mencionada en las tres decisiones supra-
mencionadas;  y que la solicitante pide la legalizacion de dicho testamento tan solo para los efectos
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del reconocimiento de hija natural hecha en dicho testamento a favor de la demandante y en

obediencia al mandato de la Corte Suprema en su decision supra.’ (Record on Appeal, p. 5.)
Notice of the petition having been duly published pursuant to Rule of Court 77, section 4, Ernesto
Guevara appeared and opposed the probate. Pedro L. Quinto, counsel for Rosario in the former
litigation, was allowed to intervene in view of his duly recorded attorney’s lien.
On January 31, 1946, Ernesto Guevara, through counsel, filed a motion to dismiss the petition on the
grounds that (a) the petition itself alleged that the will was revoked;  (b) that ‘whatever right to chan roblesvirtualawlibrary

probate the parties may have has already prescribed’ (Record on Appeal, p. 14);  and (c) that the chan roblesvirtualawlibrary

purpose of the probate was solely to have Petitioner Rosario declared an acknowledged natural child of
the deceased.
By order of December 9, 1946, Judge Sotero Rodas denied the motion to dismiss;  but upon motion of chan roblesvirtualawlibrary

reconsideration, Judge Mañalac of the same court, on June 23, 1937, reconsidered and set aside the
previous resolution and ordered the petition dismissed on the ground that Rosario Guevara’s petition
did not ask for the probate in toto of the will, contrary to the order of the Supreme Court;  that her chan roblesvirtualawlibrary

right to petition for the probate of the testament of Victorino L. Guevara had prescribed;  and that her chan roblesvirtualawlibrary

action for judicial declaration of acknowledgment had likewise prescribed.

An amended petition for the probate of the will in toto and another petition to reconsider the previous
order were subsequently denied;  the former on the ground that there was a radical change of theory
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from that embodied in the original petition, and the second for the same reasons stated in the order of
June 23, 1947. Rosario L. Guevara and Pedro L. Quinto thereupon brought the case on appeal to this
Court, assigning no less than twenty (20) alleged errors committed by the court below.” (Guevara vs.
Guevara, C.A. — G. R. No. 5416-R, promulgated December 26, 1951;  see Appendix to brief for chan roblesvirtualawlibrary

the Petitioner-Appellant, pp. 1-6.)

The dispositive part of the decision of the Court of Appeals reads as follows: chanroblesvirtuallawlibrary
“The order of dismissal of the petition for probate is reversed and the court of origin ordered to
reinstate the petition, and to hear and decide whether the will of Victorino Guevara, deceased, should
be allowed to probate. Costs against Appellees in both instances.” (Ibid.)
In his appeal therefrom, Petitioner Ernesto M. Guevara raises the following questions, to wit:  (a) chanroblesvirtua llawlibrary

Did Respondents herein duly perfect their appeal from the decision of the Court of First Instance of
Pangasinan? (b) Did the Court of Appeals have jurisdiction to entertain said appeal? (c) Is the petition for
probate of the alleged will of the deceased Victorino L. Guevara barred by the statute of limitations?
(1)  With reference to the first question, Petitioner has submitted the following statement 1 of the steps
taken since June 23, 1947, date of the resolution of Judge Mañalac, dismissing the petition for probate
of the last will and testament of Victoriano L. Guevara:chanroblesvirtua llawlibrary

“June 23, 1947 —

Date of Resolution appealed from.
July 14, 1947 —
Date of Joint Petition for Reconsideration filed by Appellants.
July 25, 1947 —
Date of Amended petition for probate of will.
July 25, 1947 —
Motion for admission of Amended Petition.
August 2, 1947 —
Appellants’ motion to postpone hearing on petition for reconsideration and motion for admission of
Amended Petition.
August 10, 1947 —
Appellants’ urgent motion for continuance of hearing on joint petition for Reconsideration as well as
Motion to Admit Amended Petition.
August 25, 1947 —
Motion for extension of time to file memorandum.
September 1, 1947 —
Memorandum for Appellants submitted.
October 7, 1947 —
Memorandum for Appellee submitted.
October 14, 1947 —
Appellants’ petition for ten (10) days to file reply memorandum.
November 1, 1947 —
Appellants’ petition to file reply memorandum on or before November 9, 1947.
November 8, 1947 —
Appellants’ petition for extension to file reply memorandum.
November 18, 1947 —
Verified reply of Appellant Rosario Guevara.
November 24, 1947 —
Reply memorandum of Pedro C. Quinto filed.
January 12, 1948 —
Court denies both petitions of July 14 and 25, 1947.
January 24, 1948 —
Notice of appeal to Supreme Court and petition for thirty (30) days’ extension by Appellant Rosario
Guevara.
January 29, 1948 —
Order granting petition for extension.
February 1, 1948 —
Another notice of appeal to Supreme Court and motion for thirty (30) days extension
by AppellantRosario Guevara.
February 28, 1948 —
Appellants’ ex-parte petition for further extension.
March 6, 1948 —
Original joint Record on Appeal filed. (This was so defective and incomplete it consisted of mere
disjointed sheets of paper intercalated with one another and was a mere token record on appeal.)
March 8, 1948 —
Another joint petition for reconsideration of Appellants.
March 11, 1948 —
Appellee’s objection to record on appeal.
March 17, 1948 —
Verified reply of Appellants to objection.
March 18, 1948 —
Appellee’s objection to joint petition for reconsideration.
June 19, 1948 —
Appellants’ memorandum in support of the joint petition for reconsideration.
July 23, 1948 —
Order of denial of Joint Petition and disapproving original record on appeal as incomplete and
giving Appellants within 10 days from notice.
July 26, 1948 —
Amended Notice of Appeal to the Court of Appeals instead of to the Supreme Court.
July 28 and 29, 1948 —
Appellants received copy of order of July 23, 1948.
August 1, 1948 —
Petition for five (5) days extension to file amended Record on Appeal filed by Appellant Pedro C. Quinto.
August 10, 1948 —
Appellants’ Joint Petition for last extension of two (2) days.
August 10, 1948 —
Filing of amended joint record on appeal. (This is also again so defective and incomplete as to constitute
another mere token record on appeal as required by the Rules.)
August 24, 1948 —
Appellants’ petition for ten (10) days period to reply to objection, if any was to be filed.
August 27, 1948 —
Appellee’s objection to amended record on appeal.
September 8, 1948 —
Appellants’ reply to objection.
October 20, 1948 —
Court order sustaining objection and gives Appellants fifteen (15) days from notice to redraft record on
appeal.
November 3, 1948 —
Appellants’ joint petition to reconsider order of disapproval of Amended Record on Appeal.
November 3, 1948 —
Appellants file re-amended joint record on appeal. (This again disregarded the orders of the court
regarding the contents of the record on appeal.).
November 22, 1948 —
Appellee objected to approval of re-amended joint record on appeal and prayed that order appealed
from be declared final.
March 22, 1949 —
Court sustains Appellee’s objection to record on appeal denying petition for reconsideration
and Appellants given fifteen (15) days from notice to satisfy requirements of court’s previous order.
April 8, 1949 —
Appellants file in Supreme Court petition for certiorari and mandamus attacking order of June 23, 1947.
April 11, 1949 —
Appellant Quinto’s petition for fifteen (15) days extension to file Re-amended Record on Appeal.
April 12, 1949 —
Supreme Court denies petition off-hand.
April 16, 1949 —
Appellant Rosario Guevara’s motion for fifteen (15) days extension for the same purpose.
April 21, 1949 —
Court granted extension prayed for to expire May 1, 1948.
April 21, 1949 —
Second Re-Amended Record on Appeal filed.
June 11, 1949 —
Appellee’s opposition to ‘Second Re-Amended Record on Appeal’.
June 29, 1949 —
Appellants’ joint notice of hearing on Second Re-Amended Record on Appeal for July 12, 1949.
July 10, 1949 —
Appellants’ joint reply to opposition.
July 12, 1949 —
Action on record on appeal deferred on petition of Atty. Quinto.
September 3, 1949 —
Appellant Quinto’s notice of hearing on Second Re-Amended Record on Appeal for September 28, 1949.
September 28, 1949 —
Order of court approving same.
December 8, 1949 —
Clerk of lower court sends records to appellate court.
December 10, 1949 —
Appellant Quinto’s motion ex-parte to have records sent up to appellate court.”
(Petitioner-Appellant’s Brief, pp. 41-47.)
Based upon the foregoing, Oppositor and Appellee Ernesto M. Guevara filed, with the Court of Appeals,
a motion praying that the appeal be dismissed: chanroblesvirtua llawlibrary

“(a)  Because due to the Appellant’s many and repeated dilatory tactics, the prosecution of their appeal
has been unduly and unreasonably delayed for a period which should strike anyone as totally without
justification. The resolution appealed from was dictated by the lower court on June 23, 1947, so that a
period of over two (2) years and nine (9) months until the date of this writing has elapsed, thus
establishing a record-holding delay which should not be sanctioned by the Courts as prejudicial to the
administration of justice.
“(b)  Because Appellants, in violation of Rule 48, section 3, did not diligently prosecute their appeal by
failing to have the record sent up to this Honorable Court within thirty (30) days from the time their
Second Re-amended Record on Appeal was approved on September 28, 1949;  and it was only so
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transmitted on December 8, 1949, that is after the lapse of two (2) months and ten (10) days.
“(c)  Because, at any rate, the first Amended Joint Record on Appeal was filed beyond the extension
granted by the Court and, consequently, the Appellants’ right to appeal has lapsed.” (Exhibit A, pp. 1-2).
The Court of Appeals denied said motion to dismiss for the following reasons: chanroblesvirtuallawlibrary

“A preliminary question was posed by the Appellee who prayed for the dismissal of the appeal on the
ground that Petitioners-Appellants had unreasonably delayed the perfection of the appeal, as the
Second Re-amended Joint Record on Appeal was not certified to this Court until December, 1949. After
considering the voluminous record, and the arguments of both parties, we are of the opinion that both
parties have contributed to the delay with lengthy memoranda, and repeated motions and objections.
Moreover, the points in question are important enough to deserve adequate consideration upon the
merits. Wherefore, the motion to dismiss the appeal should be and is hereby, overruled and denied.”
(Appendix to Brief for the Petitioner-Appellant, pp. 6- 7.)
It is urged by Petitioner herein that Respondents’ appeal from the decision of the Court of First Instance
of Pangasinan had not been duly perfected because:  (a) the original of the record on appeal did not chanroblesvirtua llawlibrary

comply with the Rules of Court;  (b) the record on appeal was filed after the lapse of the reglementary
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period;  (c) there has been an unprecedented delay in the filing of a satisfactory record on appeal; 
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and (d) the appeal should be deemed abandoned for violation of Rule 48, section 3, of the Rules of
roblesvirtualawlibra ry

Court.
The first ground is predicated upon the fact that, instead of transcribing the motions, petitions, orders
and resolutions incorporated in the original record on appeal, Respondents herein merely attached to
the original copy of said record on appeal, filed with the Court of First Instance of Pangasinan, their own
copies of said motions, petitions, orders and resolutions. Accordingly, the copy of said record on appeal
furnished to Petitioner herein did not contain or enclose the aforementioned parts of the record. It
appears, however, that the Respondents were given several extensions of time within which to comply
with the pertinent provisions of the Rules of Court and that Respondents eventually did so. There being
no question about the authority of the court of first instance to grant said extensions of time, it is clear
that the first ground, relied upon by Petitioner herein, is untenable.
In support of the second ground, it is alleged:  (a) that the original record on appeal was filed by Pedro chanroblesvirtuallawlibrary

C. Quinto only, and does not inure to the benefit of Rosario Guevara;  and (b) that Respondents had chan roblesvirtualawlibrary

lost their right to appeal by the lapse of the reglementary period. As regards the first
proposition, Petitioner asserts that Respondent Pedro C. Quinto had withdrawn his appearance as
counsel for Respondent Rosario Guevara;  that Quinto had, thereafter, intervened in the case in his
chan roblesvirtualawlibrary

own behalf, in order to enforce his attorney’s lien, as former counsel for Rosario Guevara;  that, chan roblesvirtualawlibrary

consequently, the original record on appeal and the petitions for extension of time to file an amended
record on appeal, filed by Pedro C. Quinto, were good only insofar as he is concerned, and cannot profit
Rosario Guevara, she having ceased to be his client long before the filing of said original record on
appeal and petitions for extension of time;  that this interest in the case arises from his rights as chan roblesvirtualawlibrary

former attorney for Respondent Rosario Guevara, and, as such, is subordinate to, and dependent upon,
the interest therein of said Rosario Guevara and the success of her claim therein;  and that, her appeal chan roblesvirtualawlibrary

not having been duly perfected, his appeal must be deemed to have no legal effect. There is no merit in
this pretense, for it appears, at the foot of said record on appeal, that Pedro C. Quinto had filed the
same, “for himself as Appellant and in behalf of Rosario Guevara, who authorized him to perfect the
appeal for both Appellants,” and that similar statements were made in the body and at the foot of said
petitions for extension of time. It is clear, therefore, that the aforementioned record on appeal and
motions should be deemed submitted, also, by Respondent Rosario Guevara. The position then held by
Pedro C. Quinto, as special prosecutor in the office of the Solicitor General, did not nullify his aforesaid
acts on behalf of Rosario Guevara. Besides, said acts would seem to have been performed by him, more
as attorney-in- fact than as counsel for Rosario Guevara, and this merely in connection with the
perfection of her appeal. We do not find therein anything objectionable, either legally or morally, in the
light of the circumstances surrounding the case.
The second proposition is based upon the following reasons: chanroblesvirtua llawlibrary

(a)  The aforementioned record on appeal and motions for extension of time filed by Quinto on behalf of
Rosario Guevara did not inure to her benefit, for which reason the reglementary period to appeal had
expired before the perfection of her appeal. For the reasons already adverted to, this argument is clearly
untenable.
(b)  The petition for reconsideration filed by Respondents on July 14, 1947, did not suspend the running
of the period to perfect the record on appeal, because said petition did not comply with the provisions
of Rule 37, section 1, of the Rules of Court, reading as follows: chanroblesvirtua llawlibrary

“Within thirty days after notice of the judgment in an action, the aggrieved party may move the trial
court to set aside the judgment end grant a new trial for one or more of the following causes materially
affecting the substantial rights of said party: chanroblesvirtuallawlibrary

(a)  Fraud, accident, mistake or excusable negligence which ordinary prudence could not have guarded
against and by reason of which such aggrieved party has probably been impaired in his rights;
(b)  Newly discovered evidence, which he could not, with reasonable diligence, have discovered, and
produced at the trial, and which if presented would probably alter the result;
(c)  Because excessive damages have been awarded, or the evidence was insufficient to justify the
decision, or it is against the law.”
Said petition for reconsideration appears, however, to be predicated, in effect, upon the ground that the
evidence is insufficient to justify the decision of the court of first instance, and that said decision is
contrary to law. It partakes, therefore, of the nature of a motion for new trial, stating specifically the
reasons in support thereof, and, hence, it suspended the period to appeal until the determination of
said motion.
Relative to the alleged unprecedented delay in the filing of a satisfactory record on appeal, we agree
with the finding of the Court of Appeals to the effect that the delay was due to the acts of
the Respondents, as well as of the Petitioner herein, for both had asked several postponements and
extensions of time, filed memoranda and reply memoranda, and raised or provoked a number of other
issues or incidents which necessarily delayed the perfection of the appeal. Obviously, Petitioner should
not be allowed to profit by said delay, to which he had actively contributed. 1
Lastly, Petitioner maintains that, although the record on appeal had been approved on September 28,
1949, it was not forwarded to the Court of Appeals until December 8, 1949. Section 3 of Rule 48 of the
Rules of Court provides:chanroblesvirtuallawlibrary

“If the record on appeal is not received by the Court of Appeals within thirty days after the approval
thereof, the Appellee may, upon notice to the Appellant, move the court to grant an order directing the
clerk of the lower court forthwith to transmit such record on appeal or to declare the same abandoned
for failure to prosecute.”
Considering that Respondents herein were not notified of the approval of the record on appeal until
December 8, 1949, on which date the record on appeal was forwarded to the Court of Appeals, and that
the aforementioned provision of the Rules of Court does impose upon said court the mandatory duty to
declare the appeal abandoned for failure to prosecute, we believe that no error was committed in giving
due course to the appeal and that the same has been duly perfected.
(2)  Did the Court of Appeals have jurisdiction to try the case, on appeal from the decision of the court of
first instance? Petitioner maintains the negative, upon the ground that the appeal involved only
questions of law. This is not correct, for the very motion for reconsideration adverted to above,
indicated that the appeal raised some issues of fact, such as, for instance, whether or not the will in
question was in the possession of Respondent Rosario Guevara and whether Respondent Quinto had
been authorized by her to perfect the appeal on her behalf. At any rate, the case is now before us and,
upon examination of the record and consideration of all the issues therein raised, we are of the opinion
that, had the appeal been forwarded directly to this Court, we would have disposed of it in the manner
set forth in the decision of the Court of Appeals, the review of which is sought by herein Appellant.
(3)  The last question for determination in this case is whether or not the petition for probate of the will
of Victorino L. Guevara is barred by the statute of limitations, considering that the testator died on
September 27, 1933, and that the petition for probate of said will was filed twelve (12) years later, or, to
be exact, on October 5, 1945. The Court of Appeals resolved the question in the negative, upon the
following grounds: chanroblesvirtuallawlibrary

“We are of the opinion that the Court below was in error when it declared that the petition for probate
of the will of Victorino Guevara was barred by prescription. The provision of Article 756 of the old Civil
Code (1042 of the New) and of Rule 76 of the Rules of Court, reiterating those of the old Code of Civil
Procedure (Act 190), point out that the presentation of a decedent’s will to the competent court has
always been deemed by our law as more of a duty than a right, and the neglect of such obligation carries
with it the corresponding penalty and it is inconsistent with that policy that the court should refuse to
admit wills to probate, without inquiry into their validity. The authority given to testators to dispose
freely of a portion of their estate would be imperfectly safeguarded, unless adequate measures were
provided by the state to assure that the wishes of the deceased would be carried out. Because the
decedent may no longer act to have his testamentary dispositions duly executed, the state authority
must take over the opposite vigilance and supervision, so that free testamentary disposition does not
remain a delusion and a dream. This was expressly recognized by the Supreme Court in its previous
decision, G. R. No. 48840 (Exhibit E) when it said:
chanroblesvirtuallawlibrary

‘  We hold that under section 1 of Rule 74, in relation to Rule 76, if the decedent left a will and no debts
 cralaw

and the heirs and legatees desire to make an extrajudicial partition of the estate, they must first present
that will to the court for probate and divide the estate in accordance with the will. They may not
disregard the provisions of the will unless those provisions are contrary to law. Neither may they do
away with the presentation of the will to the court for probate, because such suppression of the will is
contrary to law and public policy. 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, as is attempted to be done in the instant case.
Absent legatees and devisees, or such of them as may have no knowledge of the will, could be cheated
of their inheritance thru the collusion of some of the heirs who might agree to the partition of the estate
among themselves to the exclusion of others.’ (Italics supplied)
“In holding the statute of limitations applicable to the probate of wills, the court below failed to notice
that its doctrine was destructive of the right of testamentary disposition and violative of the owner’s
right to control his property within the legal limits. The appealed order in fact leaves wills at the mercy
and whim of custodians and heirs interested in their suppression. The lower court would in effect
abdicate the tutelary power that passed to the Republic from the former sovereigns, that ‘potestad
suprema que en mi reside para velar por el puntual cumplimiento de las ultimas voluntades’, asserted as
one of the royal prerogatives in the ‘Real Cedula’ of March 18, 1776.
“It is not without purpose that Rule of Court 77 prescribes that any ‘person interested in the estate may,
at any time after the death of the testator, petition the court having jurisdiction to have the will
allowed’. Taken from the Code of Procedure of California, this provision has been interpreted as
meaning that the statute of limitations has no application to probate of wills. In the case of In re Hume’s
Estate, 179 Calif. 338, 176 Pac. 681, the California Supreme Court ruled that: chanroblesvirtua llawlibrary

‘The chapter of the Code relating to the probate of wills does not provide for opposition to such probate
on the ground of the bar of the statute of limitations, but, in effect, excludes it from the category of
grounds allowed as a basis for such opposition. Section 1299 declares that any person interested in the
estate ‘may at any time after the death of the testator, petition the court having jurisdiction to have the
will proved.’ This implies that there is no arbitrary time limit.’
As additional reasons, the same Court stated: chanroblesvirtua llawlibrary

‘  Section 1317 declares:  If the court is satisfied, upon the proof taken or from the facts found by the
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jury that the will was duly executed and that the will testator at the time of its execution was of sound
and disposing mind and not acting under duress menace fraud, or undue influence, a certificate of the
proof and the facts found, signed by the judge and attested by the seal of the court, must be attached to
the will.’
‘This excludes the bar of the statute of limitation from consideration as one of the matters which may be
shown in opposition to the probate. This is further emphasized by section 1341, which, in substance,
declares that, if upon the verdict of the jury the facts mentioned in section 1317 as aforesaid appear to
be established, the court ‘must’ admit the will to probate. Section 1314 thus makes it imperative that
the court shall admit the will to probate if the execution is proven and the grounds of opposition
authorized by section 1312 are not established. This clearly implies that no grounds of opposition other
than those enumerated in section 1312 may be set up, and it leaves no place for the application of the
statute of limitations.
‘It is further to be observed that, notwithstanding the positive and comprehensive language of sections
343 and 369, if taken literally, there can be no doubt that they cannot apply to all special proceedings of
a civil nature. Proceedings for a change of name, or in arbitration, or for voluntary dissolution of a
corporation, or for guardianship, or for a married woman to become a sole trader, are all within the
definition of the phrase, and each is enumerated, classed, and defined as such proceeding by the Code.
If the statute of limitations applied, it would begin to run against such proceedings as soon as the right
to institute them accrued. Yet from the very nature of these proceedings it is obvious that neither of
them could be subject to such limitation.
‘This construction of these Code provisions is confirmed by the long-continued and uniform practice and
the universal understanding of the bench and bar of the state on the subject.’
x x x                    x x x                    x x x
‘Action to quiet title frequently involve wills of persons who have died many years before the action was
begun. The section contemplates that such a will, although not yet probated, may be construed in the
action and may be afterwards probated, and it clearly shows that the Legislature did not understand
that the right to probate such will would be barred if the testator had died more than four years before
the petition for probate was filed.
‘This uniform practice and understanding of the bench and bar, and of the legislative department of the
state also, is a strong argument to the effect that the statute of limitations does not apply to such
proceedings. The authorities on the effect of such long acquiescence are numerous.’
“The Statute of Limitations upon which the court below has relied, sections 38 to 50 of the old Code of
Civil Procedure, Act 190, undertakes to fix limits for the filing of ‘civil actions’, but none for ‘special
proceedings’ of which probate is admittedly one. The distinction is not purely verbal, but based on
differences that make the limitation to ‘actions’ inapplicable to ‘special proceedings’. In this regard, the
Supreme Court of New York has adequately remarked (In re Canfield’s Will, 300 NYS 502): chanroblesvirtuallawlibrary

‘A Respondent in a private proceeding owes no legal duty or obligation to the proponent as such,
wherefore it is impossible for him to violate such non-existent obligation. Furthermore such a
proceeding is not instituted for the vindication of any personal right to the proponent. The subject-
matter is therefore wholly absent which could give rise to any ‘cause of action’ against
any Respondent therein.
‘The primary purpose of the proceeding is not to establish the existence of the right of any living person,
but to determine whether or not the decedent has performed the acts specified by the pertinent
statutes which are the essential prerequisites to personal direction of the mode of devolution of his
property on death. There is no legal but merely a moral duty resting upon a proponent to attempt to
validate the wishes of the departed, and he may and frequently does receive no personal benefit from
the performance of the act.
‘One of the most fundamental conceptions of probate law, is that it is the duty of the court to
effectuate, in so far as may be compatible with the public interest, the devolutionary wishes of a
deceased person (Matter of Watson’s Will, 262 N.Y. 284, 294, 186 N.E. 787;  Matter of Marriman’s chan roblesvirtualawlibrary

Estate, 124 Misc. 320, 325, 208 N.Y.S. 672;  Foley, S. affirmed 217 App. Div. 733, 216 N.Y.S. 842; 
chan roblesvirtualawlibrary chan

Matter of Lensman’s Estate, 137 Misc. 77, 78, 243 N.Y.S. 126, Henderson, S., Matter of Drake’s Estate,
roblesvirtualawlibra ry

160 Misc. 587, 598, 290 N.Y.S. 581). To that end, the court is, in effect, an additional party to every
litigation affecting the disposal of the assets of the deceased. Matter of Van Valkenburgh’s Estate, 164
Misc. 295, 296, 298 N.Y.S. 219. A determination, therefore, that the mere non-action of a person upon
whom no legal duty rested in this regard, could have the effect of subverting the wishes of one who was
no longer able to protect his own unquestionable rights, would strike at the very foundation of all
conceptions of justice as administered in probate courts.’
“These decisions are of high persuasive value (Cu vs. Republic, G. R. L-3018, July 18, 1951);  they chan roblesvirtualawlibrary

represent the trend of authority (57 Am. Jur. 585), and enable us to conclude that reason and precedent
reject the applicability of the Statute of Limitations to probate proceedings, because these are not
exclusively established in the interest of the surviving heirs, but primarily for the protection of the
testator’s expressed wishes, that are entitled to respect as an effect of his ownership and right of
disposition. If the probate of validly executed wills is required by public policy, as declared by the
Supreme Court in the previous case, G.R. 48840 (Exhibit E), the state could not have intended the
statute of limitations to defeat that policy.
“It is true, as ruled by the trial court, that the rights of parties ‘should not be left hanging in uncertainty
for periods of time far in excess of the maximum period of ten years allowed by law’;  but the obvious chan roblesvirtualawlibrary

remedy is for the other interested persons to petition for the production of the will and for its probate,
or to inflict upon the guilty party the penalties prescribed by Rule 76 or declare the unworthiness of the
heir under the Civil Code for concealing or suppressing the testament;  but not to dismiss the petition
chan roblesvirtualawlibrary

for probate, however belatedly submitted, and thereby refuse sanction to testamentary dispositions
executed with all the formalities prescribed by law, incidentally prejudicing also those testamentary
heirs who do not happen to be successors ab intestato. That in this particular case the appealed rule
may not work injustice would not excuse its adoption as a general norm applicable to all cases.
“It is likewise reasonable to assume that if the Supreme Court had considered the ten-year limitation
applicable to probate proceedings, it would not have ordered the parties on December 29, 1943 ‘to
present the document Exhibit A to the proper court for probate in accordance with law’, because the
ten years from the death of the testator expired in September of that same year, two months before the
decision. It is safe to assume that the high Court would not order a useless step. The reasoning that the
phrase ‘in accordance with law’ was a qualification signifying ‘if still legally possible’, appears to be far-
fetched and unjustified. The plain import of the words employed by the high Court is that the probate
should follow the procedure provided for the purpose.”
x x x                    x x x                    x x x
“The other reasons advanced by the court a quo in support of its order dismissing the petition are also
untenable. The allegation contained in paragraph 10 of the original petition, that ‘the will, or its
testamentary dispositions, had been de jure revoked in so far as the parcel of 259 hectares described in
said will’ is concerned, does not justify the finding that the probate would be pointless. What is alleged
is a partial revocation, only as to the parcel of land affected;  but as previously shown, the will chan roblesvirtualawlibrary

disposed of other property besides that one. And even granting that the next allegation to the effect
that Plaintiff sought to probate ‘only for the purposes of her acknowledgment as natural child in said
will’, constitutes an averment that the will had been fully revoked, the same would at the most
constitute a conclusion or inference that the lower court was not bound to admit. Because
the Appellant claimed or believed that the revocation of the will as to the large parcel of land,
constituted a total revocation of the testament is no reason why the court should concur in the same
belief or conclusion, especially when the will itself, appended to the petition, showed that there were
other properties and other heirs or legatees, and the trial court had before it the decision of the
Supreme Court ordering the filing of the will for its probate because, as stated in its decision, such a step
was enjoined by law and public policy. Moreover, the defect, if any, incurred in failing to ask for the
probate in toto of the will, was subsequently cured and corrected in the amended petition, where not
only the objectionable statements were eliminated, but others added indicating the existence of a
partible estate.
“Assuming that the original petition violated the order of the Supreme Court in so far as it did not ask for
the allowance of the entire will, the court below erred in dismissing the petition, for it thereby
sanctioned further disobedience to the order of the superior court. Once again, it must be repeated that
the order of dismissal failed to take into account that the case involved not only the interests of Rosario
Guevara, and those of the Appellee Ernesto Guevara and the other legatees, but specially the express
desires of the testator;  and that the protection and defense of the latter developed upon the court
chan roblesvirtualawlibrary

itself, since no one else made any move to enforce them.

“Even if the other heirs had failed to show interest in the case (a fact not properly inferable from their
non-intervention in the case, because the order of publication of the petition only called for those
interested to ‘appear to contest the allowance’ and not to support it) (Rec. on App., p. 7), and even if the
other heirs had already received their shares, the order refusing the probate remains indefensible. If the
other heirs were not interested, there remained the wishes of the testator to be supported and
protected, if validly expressed. If the heirs had distributed the estate, the distribution was illegal and
improper unless the will be first probated. The Supreme Court so ruled in its previous decision (G. R.
48840) heretofore quoted.
‘Even if the decedent left no debts and nobody raises any question as to the authenticity and due
execution of the will, none of the heirs may sue for the partition of the estate in accordance with that
will without first securing its allowance or probate by the court:  first, because the law expressly
chanroblesvirtuallawlibrary

provides that ‘no will shall pass either real or personal estate unless it is proved and allowed in the
proper court;  and, second, because the probate of a will, which is a proceeding in rem, cannot be
chan roblesvirtualawlibrary

dispensed with and substituted by any other proceeding, judicial or extrajudicial, without offending
against public policy designed to effectuate the testator’s right to dispose of his property by will in
accordance with law and to protect the rights of the heirs and legatees under the will thru the means
provided by law, among which are the publication and the personal notices to each and all of said heirs
and legatees. Nor may the court approve and allow the will presented in evidence in such an action for
partition, which is one in personam, any more than it could decree the registration under the Torrens
system of the land involved in an ordinary action for revindicacion or partition.’
“From whatever angle the case is viewed, a hearing on the allowance of the will is unavoidable. The
persistent, albeit obnoxious, attempts of Rosario Guevara to sidetrack the will are not remedied by
dismissing the petition for probate of will, and allowing Ernesto to retain a greater interest than that
intended by the testator.” (Appendix to brief for the Petitioner-Appellant, pp. 7-15, 17-20.)
We are fully in accord with these findings which we adopt as ours.
In view of the foregoing, the decision appealed from is hereby affirmed, with the costs of this instance
against the Petitioner.
 [G.R. No. 78778 :  December 3, 1990.]
191 SCRA 814
LEONIDA CORONADO, FELIX BUENO, MELANIA RETIZOS, BERNARDINO
BUENASEDA and JOVITA MONTEFALCON, Petitioners, vs.  THE COURT OF APPEALS
and JUANA BUENO ALBOVIAS, Respondents.
 
 
DECISION
 
PARAS, J.:
 
This is a petition for review on certiorari seeking to reverse the decision* of the respondent
appellate court dated March 3, 1987 CA-G.R. CV No. 06911 entitled "Juana (Bueno)
Albovias et al., v. Leonida Coronado, et al.," affirming the decision of the lower court, the
decretal portion of which reads: : nad

"WHEREFORE, premises considered, judgment is hereby rendered:

1. Declaring Leonida Coronado to have no title or interest over the property in
question, hence, has no authority to dispose of the same in favor of her co-
defendants;
2. Declaring the sales executed by Coronado and subsequent transactions involving
the same property null and void ab initio;
3. Declaring the plaintiff to be the true and legal owner of the subject parcel of land;
4. Ordering the defendants to vacate the subject premises and to surrender
possession thereof unto the plaintiff;
5. Ordering the defendants to jointly and severally pay unto the plaintiff the sum of
P2,000.00 as attorney's fees and P10,000.00 as moral and exemplary damages.
Costs against the defendants." (Rollo, p. 17)
As found by the respondent appellate court, the property subject of this case is a parcel of
land situated in Nagcarlan, Laguna, containing 277 square meters, more particularly
described as follows:: nad

"A parcel of land situated in the Poblacion, Municipality of Nagcarlan, province of

Laguna. Bounded on the North, by property of Epifania Irlandez (formerly Bonifacio
Formentera); on the East, by that of Julio Lopez; on the South, by that of Dalmacio
Monterola (formerly Domingo Bueno); and on the West, by C. Lirio Street.
Containing an area of two hundred seventy seven (277) square meters, more or less.
Assessed at P3,320.00 under tax declaration No. 241." (Ibid., p. 15)
Said parcel of land is being contested by Juana Albovias, herein private respondent, on the
one hand, and Leonida-Coronado, Felix Bueno, Melania Retizos, Bernardino Buenseda and
Jovita Montefalcon, herein petitioners, on the other hand.
Juana Albovias (JUANA, for brevity) claims that the property in question is a portion of a
bigger lot referred to as Parcel G in the last will and testament executed in 1918 by Melecio
Artiaga, grandfather of JUANA. This bigger lot was inherited under that will by JUANA, her
brother Domingo Bueno, and two other grandchildren, namely Bonifacio and Herminigildo,
both surnamed Formentera. Parcel G is described as follows:
"Isang lagay na lupa na ang bahagi ay walang tanim na halaman at ang bahagi naman ay
may tanim na saguing, tumatayo sa gawin Canloran ng Calle Avenida Rizal nitong
Nagcarlan, at humahangan sa Ibaba; sa ari cong Testador; sa Silangan, sa cay Enrique
Jovellano; sa Ilaya, sa namatay na Perfecto Nanagas, at sa Canloran, tubig na
pinamamagatang San Cido." (Ibid., p. 16)
JUANA further claims that sometime in 1925 or 1926, C. Lirio Street was created by the
Municipality of Nagcarla traversing said Parcel G and thus dividing it into two portions, one
on the west of C. Lirio St. and the other to the east of said street. Parcel G was divided by
the heirs in the following manner; the land was divided into two portions, the northern
portion of which was adjudicated in favor of the Formenteras and the southern portion was
given to JUANA and Doming Bueno. The southern portion in turn was partitioned between
JUANA and Domingo Bueno, the former getting the northern part adjoining the lot of the
Formenteras, and the latter the southern part which adjoins the lot of Perfecto Nanagas (not
owned by Dalmacio Monterola). The part allocated to Domingo was later sold by him to
Dalmacio Monterola, owner of the adjoining property (Ibid.). : nad

Moreover, JUANA claims that her property was included together with the two parcels of
land owned by Dalmacio Monterola, which were sold by Monterola's successor-in-interest
Leonida Coronado (now married to Felix Bueno) to Melania Retizos on April 18, 1970.
Melania Retizos in turn sold the lots, including that one being claimed by JUANA, to the
spouse Bernardino Buenaseda and Jovita Montefalcon, now the present possessors thereof,
sometime in 1974 (Ibid., pp. 16-17).
On the other hand, Leonida Coronado and her co-petitioners (CORONADO, for brevity) claim
that the property in question was bequeathed to Leonida Coronado under a Will executed by
Dr. Dalmacio Monterola, who was allegedly in possession thereof even before the outbreak
of World War II (Ibid., p. 107).
Parenthetically, said will was probated under Sp. Proc. No. SC-283, entitled "Testate Estate
of the Deceased Monterola Leonida F. Coronado, petitioner (Ibid., p. 105). JUANA, together
with her husband, opposed the said probate. Despite their opposition, however, the Will was
allowed by the then Court of First Instance of Laguna, Sta. Cruz Branch (Ibid., p. 106). On
appeal, said decision was affirmed by the Court of Appeals in CA-G.R. No. 40353, entitled
"Leonida F. Coronado, petitioner-appellee v. Heirs of Dr. Dalmacio Monterola, oppositors-
appellants" (Ibid.). It is not apparent, however, from the record whether or not said
decision has already become final and executory.
As a result of the conflicting claims over the property in question, JUANA filed an action for
quieting of title, declaratory relief and damages against CORONADO in the Regional Trial
Court of the Fourth Judicial Region, Branch XXVI, Sta. Cruz, Laguna, docketed as Civil Case
No. 7345 (Ibid., p. 4).
As adverted to above (first par.), the lower court rendered judgment in favor of JUANA.
Not satisfied with the decision of the lower court, CORONADO elevated the case to the Court
of Appeals, which affirmed the decision appealed from (Ibid., p. 20). Hence, this petition.
:-cralaw

CORONADO raised the following assigned errors:

I
THE RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN ARRIVING AT A CONCLUSION
WHICH IS CONTRARY TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN NOT
APPLYING THE APPLICABLE PROVISION OF LAW AND JURISPRUDENCE LAID DOWN BY THIS
HONORABLE COURT. (Ibid., p. 108)
II
THERE IS NO EVIDENCE PRESENTED TO SHOW THAT THE LAND IN QUESTION CLAIMED BY
PRIVATE RESPONDENT IS THE SAME PROPERTY ADJUDICATED TO JUANA BUENO UNDER
THE WILL OF THE DECEASED MELECIO ARTIAGA; NEITHER IS THERE EVIDENCE TO SHOW
THAT SAID WILL HAD BEEN PROBATED. (Ibid., p. 114)
III
PRIVATE RESPONDENT IS IN ESTOPPEL FROM QUESTIONING THE OWNERSHIP OF THE
PETITIONER OVER THE LAND IN QUESTION HAVING FAILED TO RAISE THE SAME IN THE
ESTATE PROCEEDING IN THE TRIAL COURT AND EVEN ON APPEAL. (Ibid., p. 119)
IV
THE RESPONDENT COURT OF APPEALS MISAPPRECIATED THE EVIDENCE SUBMITTED AND
FACTS ADMITTED ON RECORD. IT THEREFORE COMMITTED GRAVE AND SERIOUS ERROR.
(Ibid., p. 121)
As required by this Court, CORONADO filed their memorandum on May 8, 1989 (Ibid., p.
105); while that of JUANA was filed on October 13, 1989 (Ibid., p. 139).
The petition is devoid of merit.
Under the first assigned error, CORONADO assails the respondent appellate court's finding
that Dr. Dalmacio Monterola could not have acquired the subject land by acquisitive
prescription. Citing Art. 1116 of the New Civil Code in relation to Section 41 of the Code of
Civil Procedure, CORONADO claims that JUANA had already foreclosed whatever right or
legal title she had over the property in question, the reason being that Monterola's
continued possession of the said property for over ten years since 1934 ripened into full and
absolute ownership (Ibid., p. 112).
The argument has no factual basis.
Time and again, it has been ruled that the jurisdiction of the Supreme Court in cases
brought to it from the Court of Appeals is limited to reviewing and revising the errors of law
imputed to it, its findings of fact being conclusive. It is not the function of the Supreme
Court to analyze or weigh such evidence all over again, its jurisdiction being limited to
reviewing errors of law that might have been committed. Absent, therefore, a showing that
the findings complained of are totally devoid of support in the record, so that they are so
glaringly erroneous as to constitute serious abuse of discretion, such findings must stand,
for the Supreme Court is not expected or required to examine or contrast the oral and
documentary evidence submitted by the parties (Andres v. Manufacturers Hanover & Trust
Corporation, G.R. 82670, September 15, 1989). There are no convincing reasons in the
instant case to depart from this rule.
As found by the respondent appellate court, Monterola never claimed ownership over the
property in question. As a matter of fact, one of the deeds of donation executed by
Monterola in favor of Leonida Coronado acknowledged that the boundary owner on the
property conveyed to her is JUANA. This is precisely the reason why during the lifetime of
the late Dalmacio Monterola, JUANA had always been allowed to enter and reap the benefits
or produce of the said property. It was only after the death of said Monterola in 1970 that
Leonida Coronado prohibited JUANA from entering it (Ibid., p. 18). :- nad

Even assuming arguendo that Monterola was indeed in continued possession of the said
property for over ten years since 1934, said possession is insufficient to constitute the
fundamental basis of the prescription. Possession, under the Civil Code, to constitute the
foundation of a prescriptive right, must be possession under claim of title (en concepto de
dueno), or to use the common law equivalent of the term, it must be adverse. Acts of
possessory character performed by one who holds by mere tolerance of the owner are
clearly not en concepto de dueno, and such possessory acts, no matter how long so
continued, do not start the running of the period of prescription (Manila Electric Company v.
Intermediate Appellate Court, G.R. 71393, June 28, 1989).
In this case, Monterola, as found by the respondent appellate court and the lower court,
never categorically claimed ownership over the property in question, much less his
possession thereof en concepto de dueno. Accordingly, he could not have acquired said
property by acquisitive prescription.
Anent the contention of CORONADO that Leonida Coronado could tack her possession to
that of Monterola, so that claim of legal title or ownership over the subject property, even
against the petitioners, the Buenasesas, who are purchasers for value and in good faith, is a
foregone or settled issue, the respondent appellate court aptly answered the same in this
wise:
"It follows that Leonida Coronado could not have derived ownership of the land in question
from her predecessor-in-interest Dalmacio Monterola, whether by prescription or by some
other title. Neither can she claim acquisitive prescription in her own name. It was only in
1970 after the death of Dalmacio Monterola that she asserted her claim of ownership
adverse to that of plaintiff-appellee. Having knowledge that she had no title over the land in
question, she must be deemed to have claimed it in bad faith. Under Article 1137 of the
Civil Code, ownership and other real rights over immovables prescribe through
uninterrupted adverse possession thereof for thirty years, without need of title or good
faith. And even granting that she had no notice or defect in her title and was, therefore, in
good faith, a period of ten years of possession is necessary for her to acquire the land by
ordinary prescription. (Article 1134, Civil Code). But she can claim to have possessed the
land only in 1968, the year the Monterola lots were donated to her. The period, however,
was interrupted in 1975, or 7 years after, when the complaint below was filed." (Rollo, pp.
18-19)
Under the second assigned error, CORONADO claims that the will under which JUANA
inherited the property in question from her grandfather, Melecio Artiaga, was never
probated; hence, said transfer for ownership was ineffectual considering that under Rule 75,
Sec. 1 of the Rules of Court (formerly Sec. 125 of Act No. 190, no will shall pass either real
or personal property unless it is proved and allowed in the proper court (Ibid., p. 115).
The contention is without merit. chanrobles virtual law library

While it is true that no will shall pass either real or personal property unless it is proved and
allowed in the proper court (Art. 838, Civil Code), the questioned will, however, may be
sustained on the basis of Article 1056 of the Civil Code of 1899, which was in force at the
time said document was executed by Melecio Artiaga in 1918. The said article read as
follows:
"Article 1056. If the testator should make a partition of his properties by an act inter vivos,
or by will, such partition shall stand in so far as it does not prejudice the legitime of the
forced heir." (Mang-Oy v. Court of Appeals, 144 SCRA 33 [1986])
In this case, nowhere was it alleged nor shown that Leonida Coronado is entitled to legitime
from Melecio Artiaga. The truth of the matter is that the record is bereft of any showing that
Leonida Coronado and the late Melecio Artiaga were related to each other.
Under the third assigned error, CORONADO claims that JUANA is estopped from questioning
the ownership of Leonida Coronado over the land in question having failed to raise the same
in the estate proceedings in the trial court and even on appeal (Rollo, p. 119).
The contention is likewise without merit.
Normally, the probate of a will does not look into its intrinsic validity. The authentication of
a will decides no other questions 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 the wills. It does not determine nor even by implication prejudge the validity or efficiency
of the provisions of the will, thus may be impugned as being vicious or null, notwithstanding
its authentication. The question relating to these points remain entirely unaffected, and may
be raised even after the will has been authenticated (Maninang, et al., v. Court of Appeals,
114 SCRA 473 [1982]). Consequently, JUANA is not estopped from questioning the
ownership of the property in question, notwithstanding her having objected to the probate
of the will executed by Monterola under which Leonida Coronado is claiming title to the said
property.:-cralaw

Under the fourth assigned error, it is alleged by CORONADO that JUANA's petition is weak
for want of factual and legal support; the weakness of JUANA's position lies in the fact that
she did not only fail to identify the subject land, but also failed to explain the discrepancy in
the boundary of the property she is claiming to be hers (Rollo, p. 125).
The contention is unavailing.
The fact that JUANA failed to identify the property in question and to explain the
discrepancy in the boundary of said property, assuming they are true, is immaterial, in view
of the findings of the lower court as to the identity of the property in question. Moreover,
the lower court found sufficient evidence to support the conclusion that the property in
question is the same property adjudicated to JUANA under the will of Melecio Artiaga, and
that CORONADO has no right whatsoever to said property (Ibid., p. 20). Such findings are
conclusive upon this Court (Reynolds Philippine Corporation v. Court of Appeals, 169 SCRA
220 [1989]).
PREMISES CONSIDERED, the decision appealed from is hereby AFFIRMED.
G.R. No. 129505           January 31, 2000

OCTAVIO S. MALOLES II, petitioner, 

vs.
PACITA DE LOS REYES PHILLIPS, respondent.

-----------------------------

G.R. No. 133359           January 31, 2000

OCTAVIO S. MALOLES II, petitioner, 

vs.
COURT OF APPEALS, HON. FERNANDO V. GOROSPE, JR., in his
Official Capacity as Presiding Judge of RTC-Makati, Branch 61,
and PACITA PHILLIPS as the alleged executrix of the alleged will
of the late Dr. Arturo de Santos, respondents.

MENDOZA, J.:

These are petitions for review on certiorari of the decisions of the

Thirteenth and the Special Eighth Divisions of the Court of Appeals
which ruled that petitioner has no right to intervene in the settlement of
the estate of Dr. Arturo de Santos. The cases were consolidated
considering that they involve the same parties and some of the issues
raised are the same.

The facts which gave rise to these two petitions are as follows:

On July 20, 1995, Dr. Arturo de Santos, Filipino and a resident of

Makati City, filed a petition for probate of his will in the Regional Trial
1 

Court, Branch 61, Makati, docketed as Sp. Proc. No. M-4223. In his
petition, Dr. De Santos alleged that he had no compulsory heirs; that
he had named in his will as sole legatee and devisee the Arturo de
Santos Foundation, Inc.; that he disposed by his will his properties
with an approximate value of not less than P2,000,000.00; and that
copies of said will were in the custody of the named executrix, private
respondent Pacita de los Reyes Phillips. A copy of the will was
2 

annexed to the petition for probate.

On February 16, 1996, Judge Fernando V. Gorospe, Jr. of RTC-
Makati, Branch 61 issued an order granting the petition and allowing
the will. The order reads:

On 03 August 1995, the Court issued an Order setting the

hearing of the petition on 12 September 1995, at 8:30 o'clock in
the morning, copies of which were served to Arturo de Santos
Foundation, Inc. and Ms. Pacita de los Reyes Phillips (Officer's
Return, dated 04 September 1995 attached to the records).
When the case was called for hearing on the date set, no
oppositor appeared nor any written opposition was ever filed and
on motion of petitioner, he was allowed to adduce his evidence
in support of the petition.

Petitioner personally appeared before this Court and was placed

on the witness stand and was directly examined by the Court
through "free wheeling" questions and answers to give this Court
a basis to determine the state of mind of the petitioner when he
executed the subject will. After the examination, the Court is
convinced that petitioner is of sound and disposing mind and not
acting on duress, menace and undue influence or fraud, and that
petitioner signed his Last Will and Testament on his own free
and voluntary will and that he was neither forced nor influenced
by any other person in signing it.

Furthermore, it appears from the petition and the evidence

adduced that petitioner in his lifetime, executed his Last Will and
Testament (Exhs. "A", "A-1", "A-2", "A-4", "A-5") at his residence
situated at 9 Bauhinia corner Intsia Streets, Forbes Park, Makati
City; said Last Will and Testament was signed in the presence of
his three (3) witnesses, namely, to wit: Dr. Elpidio Valencia
(Exhs. "A-6", "A-7", "A-8", "A-16", "A-16-A"), Atty. Edward J.
Berenguer (Exhs. "A-3", "A-3-A", "A-9", "A-10", & "A-11"), and
Atty. Victoria C. delos Reyes (Exhs. "A-12", "A-13", "A-14", "A-
17", & "A-18"), who in turn, in the presence of the testator and in
the presence of each and all of the witnesses signed the said
Last Will and Testament and duly notarized before Notary Public
Anna Melissa L. Rosario (Exh. "A-15"); on the actual execution
 of the Last Will and Testament, pictures were taken (Exhs. "B" to
"B-3").

Petitioner has no compulsory heirs and Arturo de Santos

Foundation, Inc., with address at No. 9 Bauhinia corner Intsia
Streets, Forbes Park, Makati City has been named as sole
legatee and devisee of petitioner's properties, real and personal,
approximately valued at not less than P2 million, Ms. Pacita de
los Reyes Phillips was designated as executor and to serve as
such without a bond. 1âwphi1.nêt

From the foregoing facts, the Court finds that the petitioner has
substantially established the material allegations contained in his
petition. The Last Will and Testament having been executed and
attested as required by law; that testator at the time of the
execution of the will was of sane mind and/or not mentally
incapable to make a Will; nor was it executed under duress or
under the influence of fear or threats; that it was in writing and
executed in the language known and understood by the testator
duly subscribed thereof and attested and subscribed by three (3)
credible witnesses in the presence of the testator and of another;
that the testator and all the attesting witnesses signed the Last
Will and Testament freely and voluntarily and that the testator
has intended that the instrument should be his Will at the time of
affixing his signature thereto.

WHEREFORE, as prayed for by the petitioner (testator himself)

the petition for the allowance of the Last Will and Testament of
Arturo de Santos is hereby APPROVED and ALLOWED.

Shortly after the probate of his will, Dr. De Santos died on February
26, 1996.

On April 3, 1996, petitioner Octavio S. Maloles II filed a motion for

intervention claiming that, as the only child of Alicia de Santos
(testator's sister) and Octavio L. Maloles, Sr., he was the sole full-
blooded nephew and nearest of kin of Dr. De Santos. He likewise
alleged that he was a creditor of the testator. Petitioner thus prayed for
the reconsideration of the order allowing the will and the issuance of
letters of administration in his name.

On the other hand, private respondent Pacita de los Reyes Phillips,

the designated executrix of the will, filed a motion for the issuance of
letters testamentary with Branch 61. Later, however, private
respondent moved to withdraw her motion. This was granted, while
petitioner was required to file a memorandum of authorities in support
of his claim that said court (Branch 61) still had jurisdiction to allow his
intervention.3

Petitioner filed his memorandum of authorities on May 13, 1996. On

the other hand, private respondent, who earlier withdrew her motion
for the issuance of letters testamentary in Branch 61, refiled a petition
for the same purpose with the Regional Trial Court, Makati, which was
docketed as Sp. Proc. No. M-4343 and assigned to Branch 65.

Upon private respondent's motion, Judge Salvador Abad Santos of

Branch 65 issued an order, dated June 28, 1996, appointing her as
special administrator of Dr. De Santos's estate.

On July 29, 1996, petitioner sought to intervene in Sp. Proc. No. M-

4343 and to set aside the appointment of private respondent as
special administrator. He reiterated that he was the sole and full
blooded nephew and nearest of kin of the testator; that he came to
know of the existence of Sp. Proc. No. M-4343 only by accident; that
the probate proceedings in Sp. Proc. No. M-4223 before Branch 61 of
the same court was still pending; that private respondent misdeclared
the true worth of the testator's estate; that private respondent was not
fit to be the special administrator of the estate; and that petitioner
should be given letters of administration for the estate of Dr. De
Santos.

On August 28, 1996, Judge Abad Santos ordered the transfer of Sp.
Proc. No. M-4343 to Branch 61, on the ground that "[it] is related to
the case before Judge Gorospe of RTC Branch 61 . . ."
It appears, however, that in Sp. Proc. No. M-4223, Judge Gorospe
had denied on August 26, 1996 petitioner's motion for intervention.
Petitioner brought this matter to the Court of Appeals which, in a
decision promulgated on February 13, 1998, upheld the denial of
4 

petitioner's motion for intervention.

Meanwhile, Judge Gorospe issued an order, dated September 4,

1996, returning the records of Sp. Proc. No. M-4343 to Branch 65 on
the ground that there was a pending case involving the Estate of
Decedent Arturo de Santos pending before said court. The order
reads:

Acting on the ORDER dated 28 August 1996 of Branch 65, this

Court, transferring this case to this Branch 61 on the ground that
this case is related with a case before this Court, let this case be
returned to Branch 65 with the information that there is no
related case involving the ESTATE OF DECEDENT ARTURO
DE SANTOS pending before this Branch.

There is, however, a case filed by ARTURO DE SANTOS, as

petitioner under Rule 76 of the Rules of Court for the Allowance
of his will during his lifetime docketed as SP. PROC. NO. M-
4223 which was already decided on 16 February 1996 and has
become final.

It is noted on records of Case No. M-4223 that after it became

final, herein Petitioner Pacita de los Reyes Phillips filed a
MOTION FOR THE ISSUANCE OF LETTERS
TESTAMENTARY, which was subsequently withdrawn after this
Court, during the hearing, already ruled that the motion could not
be admitted as the subject matter involves a separate case
under Rule 78 of the Rules of Court, and movant withdrew her
motion and filed this case (No. 4343).

Octavio de Santos Maloles [II] filed a MOTION FOR

INTERVENTION before Case No. M-4223 and this motion was
already DENIED in the order (Branch 61) of 26 August 1996
likewise for the same grounds that the matter is for a separate
 case to be filed under Rule 78 of the Rules of Court and cannot
be included in this case filed under Rule 76 of the Rules of Court.

It is further noted that it is a matter of policy that consolidation of

cases must be approved by the Presiding Judges of the affected
Branches.

Initially, in his decision dated September 23, 1996, Judge Abad

5 

Santos appeared firm in his position that " . . . it would be improper for
(Branch 65) to hear and resolve the petition (Sp. Proc. No. M-4343),"
considering that the probate proceedings were commenced with
Branch 61. He thus ordered the transfer of the records back to the
latter branch. However, he later recalled his decision and took
cognizance of the case "to expedite the proceedings." Thus, in his
Order, dated October 21, 1996, he stated:

Considering the refusal of the Hon. Fernando V. Gorospe, Jr. of

Branch 61 to continue hearing this case notwithstanding the fact
that said branch began the probate proceedings of the estate of
the deceased and must therefore continue to exercise its
jurisdiction to the exclusion of all others, until the entire estate of
the testator had been partitioned and distributed as per Order
dated 23 September 1996, this branch (Regional Trial Court
Branch 65) shall take cognizance of the petition if only to
expedite the proceedings, and under the concept that the
Regional Trial Court of Makati City is but one court.

Furnish a copy of this order to the Office of the Chief justice and
the Office of the Court Administrator, of the Supreme Court; the
Hon. Fernando V. Gorospe, Jr.; Pacita De Los Reyes Phillips,
Petitioner; and Octavio de Santos Maloles, Intervenor.

On November 4, 1996, Judge Abad Santos granted petitioner's motion

for intervention. Private respondent moved for a reconsideration but
her motion was denied by the trial court. She then filed a petition
for certiorari in the Court of Appeals which, on February 26, 1997,
rendered a decision setting aside the trial court's order on the ground
6 
that petitioner had not shown any right or interest to intervene in Sp.
Proc. No. M-4343.

Hence, these petitions which raise the following issues:

1. Whether or not the Honorable Regional Trial Court — Makati,

Branch 61 has lost jurisdiction to proceed with the probate
proceedings upon its issuance of an order allowing the will of Dr.
Arturo de Santos.

2. Whether or not the Honorable (Regional Trial Court — Makati,

Branch 65) acquired jurisdiction over the petition for issuance of
letters testamentary filed by (private) respondent.

3. Whether or not the petitioner, being a creditor of the late Dr.

Arturo de Santos, has a right to intervene and oppose the
petition for issuance of letters testamentary filed by the
respondent.

4. Whether or not (private) respondent is guilty of forum

shopping in filing her petition for issuance of letters testamentary
with the Regional Trial Court — Makati, Branch 65 knowing fully
well that the probate proceedings involving the same restate
estate of the decedent is still pending with the Regional Trial
Court — Makati, Branch 61.

First. Petitioner contends that the probate proceedings in Branch 61 of

RTC-Makati did not terminate upon the issuance of the order allowing
the will of Dr. De Santos. Citing the cases of Santiesteban
v. Santiesteban and Tagle v. Manalo, he argues that the proceedings
7  8 

must continue until the estate is fully distributed to the lawful heirs,
devisees, and legatees of the testator, pursuant to Rule 73, §1 of the
Rules of Court. Consequently, petitioner contends that Branch 65
could not lawfully act upon private respondent's petition for issuance
of letters testamentary.

The contention has no merit.

In cases for the probate of wills, it is well-settled that the authority of
the court is limited to ascertaining the extrinsic validity of the will, i.e.,
whether the testator, being of sound mind, freely executed the will in
accordance with the formalities prescribed by law. 9

Ordinarily, probate proceedings are instituted only after the death of

the testator, so much so that, after approving and allowing the will, the
court proceeds to issue letters testamentary and settle the estate of
the testator. The cases cited by petitioner are of such nature. In fact,
in most jurisdictions, courts cannot entertain a petition for probate of
the will of a living testator under the principle of ambulatory nature of
wills.
10

However, Art. 838 of the Civil Code authorizes the filing of a petition
for probate of the will filed by the testator himself. It provides:

CIVIL CODE, ART. 838. No will shall pass either real or personal
property unless it is proved and allowed in accordance with the
Rules of Court.

The testator himself may, during his lifetime, petition the court
having jurisdiction for the allowance of his will. In such case, the
pertinent provisions of the Rules of Court for the allowance of
wills after the testator's death shall govern.

The Supreme Court shall formulate such additional Rules of

Court as may be necessary for the allowance of wills on petition
of the testator.

Subject to the right of appeal, the allowance of the will, either

during the lifetime of the testator or after his death, shall be
conclusive as to its due execution.

Rule 76, §1 likewise provides:

Sec. 1. Who may petition for the allowance of will. — Any

executor, devisee, or legatee named in a will, or any other
person interested in the estate, may, at any time after the death
of the testator, petition the court having jurisdiction to have the
 will allowed, whether the same be in his possession or not, or is
lost or destroyed.

The testator himself may, during his lifetime, petition in the court
for the allowance of his will.

The rationale for allowing the probate of wills during the lifetime of
testator has been explained by the Code Commission thus:

Most of the cases that reach the courts involve either the
testamentary capacity of the testator or the formalities adopted in
the execution of wills. There are relatively few cases concerning
the intrinsic validity of testamentary dispositions. It is far easier
for the courts to determine the mental condition of a testator
during his lifetime than after his death. Fraud, intimidation and
undue influence are minimized. Furthermore, if a will does not
comply with the requirements prescribed by law, the same may
be corrected at once. The probate during the testator's life,
therefore, will lessen the number of contest upon wills. Once a
will is probated during the lifetime of the testator, the only
questions that may remain for the courts to decide after the
testator's death will refer to the intrinsic validity of the
testamentary dispositions. It is possible, of course, that even
when the testator himself asks for the allowance of the will, he
may be acting under duress or undue influence, but these are
rare cases.

After a will has been probated during the lifetime of the testator,
it does not necessarily mean that he cannot alter or revoke the
same before his death. Should he make a new will, it would also
be allowable on his petition, and if he should die before he has
had a chance to present such petition, the ordinary probate
proceeding after the testator's death would be in order. 11

Thus, after the allowance of the will of Dr. De Santos on February 16,
1996, there was nothing else for Branch 61 to do except to issue a
certificate of allowance of the will pursuant to Rule 73, §12 of the
Rules of Court. There is, therefore, no basis for the ruling of Judge
Abad Santos of Branch 65 of RTC-Makati that —

Branch 61 of the Regional Trial Court of Makati having begun the

probate proceedings of the estate of the deceased, it continues
and shall continue to exercise said jurisdiction to the exclusion of
all others. It should be noted that probate proceedings do not
cease upon the allowance or disallowance of a will but continues
up to such time that the entire estate of the testator had been
partitioned and distributed.

The fact that the will was allowed during the lifetime of the
testator meant merely that the partition and distribution of the
estate was to be suspended until the latter's death. In other
words, the petitioner, instead of filing a new petition for the
issuance of letters testamentary, should have simply filed a
manifestation for the same purpose in the probate court. 12

Petitioner, who defends the order of Branch 65 allowing him to

intervene, cites Rule 73, §1 which states:

Where estate of deceased persons settled. — If the decedent is

an inhabitant of the Philippines at the time of his death, whether
a citizen or an alien, his will shall be proved, or letters of
administration granted, and his estate settled, in the Court of
First Instance in the province in which he resides at the time of
his death, and if he is an inhabitant of a foreign country, the
Court of First Instance of any province in which he had estate.
The court first taking cognizance of the settlement of the estate
of a decedent, shall exercise jurisdiction to the exclusion of all
other courts. The jurisdiction assumed by a court, so far as it
depends on the place of residence of the decedent, or of the
location of his estate, shall not be contested in a suit or
proceeding, except in an appeal from that court, in the original
case, or when the want of jurisdiction appears on the record.
The above rule, however, actually provides for the venue of actions for
the settlement of the estate of deceased persons. In Garcia Fule
v. Court of Appeals, it was held:
13

The aforequoted Section 1, Rule 73 (formerly Rule 75, Section

1), specifically the clause "so far as it depends on the place of
residence of the decedent, or of the location of the state," is in
reality a matter of venue, as the caption of the Rule indicates:
"Settlement of Estate of Deceased Persons. Venue and
Processes." It could not have been intended to define the
jurisdiction over the subject matter, because such legal provision
is contained in a law of procedure dealing merely with procedural
matters. Procedure is one thing, jurisdiction over the subject
matter is another. The power or authority of the court over the
subject matter "existed was fixed before procedure in a given
cause began." That power or authority is not altered or changed
by procedure, which simply directs the manner in which the
power or authority shall be fully and justly exercised. There are
cases though that if the power is not exercised conformably with
the provisions of the procedural law, purely, the court attempting
to exercise it loses the power to exercise it legally. However, this
does not amount to a loss of jurisdiction over the subject matter.
Rather, it means that the court may thereby lose jurisdiction over
the person or that the judgment may thereby be rendered
defective for lack of something essential to sustain it. The
appearance of this provision in the procedural law at once raises
a strong presumption that it has nothing to do with the jurisdiction
of the court over the subject matter. In plain words, it is just a
matter of method, of convenience to the parties.

Indeed, the jurisdiction over probate proceedings and settlement of

estates with approximate value of over P100,000.00 (outside Metro
Manila) or P200,000.00 (in Metro Manila) belongs to the regional trial
courts under B.P. Blg. 129, as amended. The different branches
comprising each court in one judicial region do not possess
jurisdictions independent of and incompatible with each other. 14
It is noteworthy that, although Rule 73, §1 applies insofar as the venue
of the petition for probate of the will of Dr. De Santos is concerned, it
does not bar other branches of the same court from taking cognizance
of the settlement of the estate of the testator after his death. As held in
the leading case of Bacalso v. Ramolote: 15

The various branches of the Court of First Instance of Cebu

under the Fourteenth Judicial District, are a coordinate and co-
equal courts, and the totality of which is only one Court of First
Instance. The jurisdiction is vested in the court, not in the judges.
And when a case is filed in one branch, jurisdiction over the case
does not attach to the branch or judge alone, to the exclusion of
the other branches. Trial may be held or proceedings continue
by and before another branch or judge. It is for this reason that
Section 57 of the Judiciary Act expressly grants to the Secretary
of Justice, the administrative right or power to apportion the
cases among the different branches, both for the convenience of
the parties and for the coordination of the work by the different
branches of the same court. The apportionment and distribution
of cases does not involve a grant or limitation of jurisdiction, the
jurisdiction attaches and continues to be vested in the Court of
First Instance of the province, and the trials may be held by any
branch or judge of the court.

Necessarily, therefore, Branch 65 of the RTC of Makati City has

jurisdiction over Sp. Proc. No. M-4343.

Second. Petitioner claims the right to intervene in and oppose the

petition for issuance of letters testamentary filed by private
respondent. He argues that, as the nearest next of kin and creditor of
the testator, his interest in the matter is material and direct. In ruling
that petitioner has no right to intervene in the proceedings before
Branch 65 of RTC-Makati City, the Court of Appeals held:

The private respondent herein is not an heir or legatee under the

will of the decedent Arturo de Santos. Neither is he a compulsory
heir of the latter. As the only and nearest collateral relative of the
decedent, he can inherit from the latter only in case of intestacy.
 Since the decedent has left a will which has already been
probated and disposes of all his properties the private
respondent can inherit only if the said will is annulled. His
interest in the decedent's estate is, therefore, not direct or
immediate.

His claim to being a creditor of the estate is a belated one,

having been raised for the first time only in his reply to the
opposition to his motion to intervene, and, as far as the records
show, not supported by evidence.

. . . . [T]he opposition must come from one with a direct interest

in the estate or the will, and the private respondent has none.
Moreover, the ground cited in the private respondent's
opposition, that the petitioner has deliberately misdeclared the
truth worth and value of the estate, is not relevant to the question
of her competency to act as executor. Section 2, Rule 76 of the
Rules of Court requires only an allegation of the probable value
and character of the property of the estate. The true value can
be determined later on in the course of the settlement of the
estate.16

Rule 79, §1 provides:

Opposition to issuance of letters testamentary. Simultaneous

petition for administration. — Any person interested in a will may
state in writing the grounds why letters testamentary should not
issue to the persons named therein as executors, or any of them,
and the court, after hearing upon notice, shall pass upon the
sufficiency of such grounds. A petition may, at the same time, be
filed for letters of administration with the will annexed.

Under this provision, it has been held that an "interested person" is

one who would be benefited by the estate, such as an heir, or one
who has a claim against the estate, such as a creditor, and whose
interest is material and direct, not merely incidental or contingent. 17
Even if petitioner is the nearest next of kin of Dr. De Santos, he cannot
be considered an "heir" of the testator. It is a fundamental rule of
testamentary succession that one who has no compulsory or forced
heirs may dispose of his entire estate by will. Thus, Art. 842 of the
Civil Code provides:

One who has no compulsory heirs may dispose by will of all his
estate or any part of it in favor of any person having capacity to
succeed.

One who has compulsory heirs may dispose of his estate

provided he does not contravene the provisions of this Code with
regard to the legitimate of said heirs.

Compulsory heirs are limited to the testator's —

(1) Legitimate children and descendants, with respect to their

legitimate parents and ascendants;

(2) In default of the foregoing, legitimate parents and

ascendants, with respect to their legitimate children and
descendants;

(3) The widow or widower;

(4) Acknowledged natural children, and natural children by legal

fiction;

(5) Other illegitimate children referred to in Article 287 of the Civil

Code. 18

Petitioner, as nephew of the testator, is not a compulsory heir who

may have been preterited in the testator's will.

Nor does he have any right to intervene in the settlement proceedings

based on his allegation that he is a creditor of the deceased. Since the
testator instituted or named an executor in his will, it is incumbent
upon the Court to respect the desires of the testator. As we stated
in Ozaeta v. Pecson: 19
 The choice of his executor is a precious prerogative of a testator,
a necessary concomitant of his right to dispose of his property in
the manner he wishes. It is natural that the testator should desire
to appoint one of his confidence, one who can be trusted to carry
out his wishes in the disposal of his estate. The curtailment of
this right may be considered a curtailment of the right to dispose.

Only if the appointed executor is incompetent, refuses the trust, or

fails to give bond may the court appoint other persons to administer
the estate. None of these circumstances is present in this case.
20 

Third. Petitioner contends that private respondent is guilty of forum

shopping when she filed the petition for issuance of letters
testamentary (Sp. Proc. No. M-4343) while the probate proceedings
(Sp. Proc. No. M-4223) were still pending. According to petitioner,
there is identity of parties, rights asserted, and reliefs prayed for in the
two actions which are founded on the same facts, and a judgment in
either will result in res judicata in the other.

This contention has no merit. As stated earlier, the petition for probate
was filed by Dr. De Santos, the testator, solely for the purpose of
authenticating his will. Upon the allowance of his will, the proceedings
were terminated. 1âwphi1.nêt

On the other hand, the petition for issuance of letters testamentary

was filed by private respondent, as executor of the estate of Dr. De
Santos, for the purpose of securing authority from the Court to
administer the estate and put into effect the will of the testator. The
estate settlement proceedings commenced by the filing of the petition
terminates upon the distribution and delivery of the legacies and
devises to the persons named in the will. Clearly, there is no identity
between the two petitions, nor was the latter filed during the pendency
of the former. There was, consequently, no forum shopping.
WHEREFORE, the petition is DENIED and the decisions of the Court
of Appeals are hereby AFFIRMED.
G.R. No. 115925            August 15, 2003

SPOUSES RICARDO PASCUAL and CONSOLACION

SIOSON, petitioners, 
vs.
COURT OF APPEALS and REMEDIOS S. EUGENIO-
GINO, respondents.

CARPIO, J.:

The Case

This is a petition for review of the Decision1 dated 31 January 1994 of

the Court of Appeals ordering the Register of Deeds of Metro Manila,
District III, to place TCT No. (232252) 1321 in the name of respondent
Remedios S. Eugenio-Gino. The Decision ordered the Register of
Deeds to cancel the names of petitioners Ricardo Pascual and
Consolacion Sioson ("petitioners") in TCT No. (232252) 1321. The
Decision also directed petitioners to pay respondent moral and
exemplary damages and attorney’s fees.

The Facts

Petitioner Consolacion Sioson ("CONSOLACION") and respondent

Remedios S. Eugenio-Gino ("REMEDIOS") are the niece and
granddaughter, respectively, of the late Canuto Sioson ("CANUTO").
CANUTO and 11 other individuals, including his sister Catalina Sioson
("CATALINA") and his brother Victoriano Sioson ("VICTORIANO"),
were co-owners of a parcel of land in Tanza, Navotas, Metro Manila.
The property, known as Lot 2 of Plan Psu 13245, had an area of 9,347
square meters and was covered by Original Certificate of Title No.
4207 issued by the Register of Deeds of Rizal. CATALINA, CANUTO,
and VICTORIANO each owned an aliquot 10/70 share or 1,335
square meters of Lot 2.2

On 20 November 1951, CANUTO had Lot 2 surveyed and subdivided

into eight lots (Lot Nos. 2-A to 2-H) through Subdivision Plan Psd
34713 which the Director of Lands approved on 30 May 1952. Lot No.
2-A, with an area of 670 square meters, and Lot No. 2-E, with an area
of 2,000 square meters, were placed under CANUTO’s name. Three
other individuals took the remaining lots.3

On 26 September 1956, CANUTO and CONSOLACION executed a

Kasulatan ng Bilihang Tuluyan4("KASULATAN"). Under the
KASULATAN, CANUTO sold his 10/70 share in Lot 2 in favor of
CONSOLACION for P2,250.00. The KASULATAN, notarized by
Notary Public Jose T. de los Santos of Navotas, provides:

Na ako, CANUTO SIOSON, mamamayang Pilipino, may

katampatang gulang, kasal kay Raymunda San Diego, at
naninirahan sa Tanza, Navotas, Rizal, sa bisa at pamamagitan
ng kasulatang ito ay nagpapatunay at nagpapatibay:

1. Na ako ang lubos at tunay na may-ari ng 10/70 bahaging

hindi hati (10/70 porcion pro-indiviso) ng isang lagay na
lupa (Lote No. 2, Plano Psu-13245), na nasa sa nayon ng
Tanza, Municipio ng Navotas, Provincia ng Rizal, at ang
descripcion o pagkakakilanlan ng nasabing lote ay
nakasaad sa Certificado Original, de Titulo No. 4207 ng
Oficina ng Registrador de Titulos ng Rizal, gaya ng
sumusunod:

xxxx

2. Na dahil at alang-alang sa halagang Dalawang Libo

Dalawang Daan at Limampung Piso (P2,250.00), salaping
Pilipino, na sa akin ay ibinayad ni CONSOLACION
SIOSON, kasal kay Ricardo S. Pascual, may sapat na
gulang, mamamayang Pilipino, at naninirahan sa Dampalit,
Malabon, Rizal at ang pagkakatanggap ng nasabing halaga
ay aking inaamin at pinatutunayan, ay aking ipinagbili,
inilipat at isinalin, sa pamamagitan ng bilihang tuluyan at
walang pasubali a favor [sic] sa nasabing si
CONSOLACION SIOSON, sa kanyang tagapagmana at
mapaglilipatan ang lahat ng aking titulo, karapatan at
kaparti na binubuo ng 10/70 bahaging hindi hati (10/70
 porcion pro-indiviso) ng loteng descrito or tinutukoy sa itaas
nito. (Emphasis supplied)

CONSOLACION immediately took possession of Lot Nos. 2-A

and 2-E. She later declared the land for taxation purposes and
paid the corresponding real estate taxes.5

On 23 October 1968, the surviving children of CANUTO, namely,

Felicidad and Beatriz, executed a joint affidavit6("JOINT AFFIDAVIT")
affirming the KASULATAN in favor of CONSOLACION. They also
attested that the lots their father had sold to CONSOLACION were Lot
Nos. 2-A and 2-E of Subdivision Plan Psd 34713. The JOINT
AFFIDAVIT reads:

KAMING sina FELICIDAD SIOSON at BEATRIZ SIOSON,

pawang mga Pilipino, kapuwa may sapat na gulang at
naninirahan, ang una sa Tanza, Navotas at ang ikalawa sa
Concepcion, Malabon, lalawigan ng Rizal, sa ilalim ng isang
ganap na panunumpa alinsunod sa batas, ay malayang
nagsasalaysay ng mga sumusunod:

Na kami ang mga buhay na anak na naiwan ni CANUTO

SIOSON na nagmamay-ari ng 10/70 bahaging hindi hati
(10/70 porcion pro-indiviso) ng isang lagay na lupa (Lote
No. 2, plano Psu-13245), na nasa Nayon ng Tanza,
Navotas, Rizal, at ang mga palatandaan nito ay nasasaad
sa Certificado Original de Titulo No. 4207 ng Tanggapan
ng Registrador de Titulos ng Rizal;

Na sa lubos naming kaalaman, ay ipinagbili ng aming Ama

na si Canuto Sioson ang kaniyang buong bahagi na 10/70
sa nasabing Lote No. 2, kay CONSOLACION SIOSON,
may-bahay ni Ricardo S. Pascual, na taga Dampalit,
Malabon, Rizal, sa halagang P2,250.00, salaping pilipino,
noong ika 16 [sic] ng Septiembre, 1956, sa pamamagitan
ng isang KASULATAN NG BILIHANG TULUYAN na
pinagtibay sa harap ng Notario Publico Jose T. de los
 Santos nang pechang nabanggit, sa Navotas, Rizal, (Doc.
No. 194, Page No. 84; Book No. IV; Series of 1956);

Na ang nasabing lupa na ipinagbili ng aming Ama kay

Consolacion Sioson ni Pascual, ay nakikilala ngayong mga
Lote No. 2-A at Lote 2-E ng Plano de Subdivision Psd-
34713; na pinagtibay ng Assistant Director of Lands noong
Mayo 30, 1952;

Na aming ngayong pinatitibayan ang pagka-pagbili ng

bahagi ng aming Ama kay Consolacion Sioson ni Pascual
ng ngayo’y nakikilalang Lote No. 2-A at Lote No. 2-E ng
Plano de Subdivision Psd-34713. (Emphasis supplied)

On 28 October 1968, CONSOLACION registered the KASULATAN

and the JOINT AFFIDAVIT with the Office of the Register of Deeds of
Rizal ("Register of Deeds"). Based on these documents, the Register
of Deeds issued to CONSOLACION Transfer Certificate of Title No.
(232252) 1321 covering Lot Nos. 2-A and 2-E of Subdivision Plan Psd
34713 with a total area of 2,670 square meters.

On 4 February 1988, REMEDIOS filed a complaint against

CONSOLACION and her spouse Ricardo Pascual in the Regional
Trial Court of Malabon, Branch 165, for "Annulment or Cancellation of
Transfer Certificate [of Title] and Damages." REMEDIOS claimed that
she is the owner of Lot Nos. 2-A and 2-E because CATALINA devised
these lots to her in CATALINA’s last will and testament7 ("LAST
WILL") dated 29 May 1964. REMEDIOS added that CONSOLACION
obtained title to these lots through fraudulent means since the area
covered by TCT (232252) 1321 is twice the size of CANUTO’s share
in Lot 2. REMEDIOS prayed for the cancellation of CONSOLACION’s
title, the issuance of another title in her name, and the payment to her
of damages.

Petitioners sought to dismiss the complaint on the ground of

prescription. Petitioners claimed that the basis of the action is fraud,
and REMEDIOS should have filed the action within four years from the
registration of CONSOLACION’s title on 28 October 1968 and not
some 19 years later on 4 February 1988. REMEDIOS opposed the
motion, claiming that she became aware of CONSOLACION’s
adverse title only in February 1987. CONSOLACION maintained that
she had timely filed her complaint within the four-year prescriptive on
4 February 1988.

In its order of 28 April 1988, the trial court denied petitioners’ motion to
dismiss. The trial court held that the reckoning of the prescriptive
period for filing REMEDIOS’ complaint is evidentiary in nature and
must await the presentation of the parties’ evidence during the trial.
During the pre-trial stage, REMEDIOS clarified that she was claiming
only CATALINA’s 10/70 share in Lot 2, or 1,335 square meters, which
constitute ½ of the area of Lot Nos. 2-A and 2-E.8 The trial of the case
then ensued.

The Ruling of the Trial Court

On 26 November 1990, the trial court rendered judgment dismissing

the case and ordering REMEDIOS to pay petitioners P10,000 as
attorney’s fees and the cost of suit. The trial court held that the action
filed by REMEDIOS is based on fraud, covered by the four-year
prescriptive period. The trial court also held that REMEDIOS knew of
petitioners’ adverse title on 19 November 1982 when REMEDIOS
testified against petitioners in an ejectment suit petitioners had filed
against their tenants in Lot Nos. 2-A and 2-E. Thus, the complaint of
REMEDIOS had already prescribed when she filed it on 4 February
1988.

The trial court further ruled that REMEDIOS has no right of action
against petitioners because CATALINA’s LAST WILL from which
REMEDIOS claims to derive her title has not been admitted to
probate. Under Article 838 of the Civil Code, no will passes real or
personal property unless it is allowed in probate in accordance with
the Rules of Court. The dispositive portion of the trial court’s decision
provides:

WHEREFORE, judgment is hereby rendered in favor of the

defendants and against plaintiff, ordering:
 1. The dismissal of this case;

2. The plaintiff to pay the defendants the sum of Ten

Thousand (P10,000.00) Pesos as and for attorney’s fees;
and

3. The plaintiff to pay the costs of suit.9

REMEDIOS appealed to the Court of Appeals.

The Ruling of the Court of Appeals

On 31 January 1994, the Court of Appeals rendered judgment

reversing the decision of the trial court. The appellate court held that
what REMEDIOS filed was a suit to enforce an implied trust allegedly
created in her favor when CONSOLACION fraudulently registered her
title over Lot Nos. 2-A and 2-E. Consequently, the prescriptive period
for filing the complaint is ten years, not four. The Court of Appeals
counted this ten-year period from 19 November 1982. Thus, when
REMEDIOS filed her complaint on 4 February 1988, the ten-year
prescriptive period had not yet expired.

The appellate court held that CATALINA’s unprobated LAST WILL

does not preclude REMEDIOS from seeking reconveyance of Lot Nos.
2-A and 2-E as the LAST WILL may subsequently be admitted to
probate. The dispositive portion of the appellate court’s ruling
provides:

WHEREFORE, the decision appealed from is REVERSED and

SET ASIDE. The Registry of Deeds of Rizal or Metro Manila,
District III, is ordered to place Transfer Certificate of Title No.
(232252) 1321 under the name of Remedios S. Eugenio-Gino as
executor of the will of Catalina Sioson and cancel the names of
the Spouses Ricardo Pascual and Consolacion Sioson inscribed
over said title as owners of the covered lot. Defendants-
appellees spouses Ricardo Pascual and Consolacion Sioson are
ordered to pay plaintiff-appellant Remedios S. Eugenio-Gino
moral damages in the amount of P50,000.00, exemplary
 damages of P20,000[.00] and attorney’s fees of P20,000.00
and P500.00 per appearance.10

Petitioners sought reconsideration of the ruling. However, the Court of

Appeals denied their motion in its order dated 15 June 1994.

Hence, this petition.

The Issues

Petitioners allege the following assignment of errors:

I. THE COURT OF APPEALS ERRED IN HOLDING THAT

PRIVATE RESPONDENT’S CAUSE OF ACTION IS NOT
BARRED BY PRESCRIPTION WHICH FINDING IS
MANIFESTLY CONTRARY TO LAW AND THE APPLICABLE
DECISIONS OF THIS HONORABLE COURT.

II. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT

PRIVATE RESPONDENT DOES NOT HAVE ANY TITLE AND
HAS UTTERLY FAILED TO PROVE ANY TITLE TO THE LOTS
INVOLVED IN THIS CASE, AND IN ORDERING THE
CANCELLATION OF THE CERTIFICATE OF TITLE OF
PETITIONERS.

III. THE COURT OF APPEALS ACTED WITH GRAVE ABUSE

OF DISCRETION AMOUNTING TO LACK OF JURISDICTION
AND IN GROSS VIOLATION OF THE RULES OF COURT IN
ORDERING THE ENTIRE PROPERTY COVERED BY
TRANSFER CERTIFICATE OF TITLE NO. (232252) 1321 TO
BE PLACED IN THE NAME OF PRIVATE RESPONDENT,
BECAUSE THE CLAIM OF PRIVATE RESPONDENT IS
LIMITED ONLY TO ONE-HALF (1/2) PORTION OF THE
PROPERTY, AND THE OTHER HALF THEREOF
UNQUESTIONABLY BELONGS TO PETITIONERS.

IV. THE COURT OF APPEALS ERRED IN HOLDING THAT

PETITIONERS ACTED FRAUDULENTLY AND IN BAD FAITH
IN SECURING THEIR CERTIFICATE OF TITLE TO THE
 PROPERTY INVOLVED IN THIS CASE, AND IN ORDERING
PETITIONERS TO PAY PRIVATE RESPONDENTS MORAL
DAMAGES, EXEMPLARY DAMAGES AND ATTORNEY’S
FEES.11

The pivotal questions are: (1) whether prescription bars the action filed
by REMEDIOS, and (2) whether REMEDIOS is a real party-in-interest.

The Ruling of the Court

The petition has merit.

The Action is Barred by Prescription

The trial court held that the action filed by REMEDIOS is one based
on fraud. REMEDIOS’ action seeks to recover real property that
petitioners allegedly acquired through fraud. Consequently, the trial
court held that the action prescribes in four years counted from
REMEDIOS’ actual discovery of petitioners’ adverse title. The trial
court concluded that REMEDIOS belatedly filed her suit on 4 February
1988 because she actually knew of petitioners’ adverse title since 19
November 1982.

On the other hand, the Court of Appeals held that what REMEDIOS
filed was a suit to enforce an implied trust. REMEDIOS had ten years
counted from actual notice of the breach of trust, that is, the assertion
of adverse title, within which to bring her action. The appellate court
held that REMEDIOS seasonably filed her complaint on 4 February
1988 because she allegedly discovered petitioners’ adverse title only
on 19 November 1982.

What REMEDIOS filed was an action to enforce an implied trust but

the same is already barred by prescription.

Prescriptive Period is 10 Years Counted

From Registration of Adverse Title

The four-year prescriptive period relied upon by the trial court applies
only if the fraud does not give rise to an implied trust, and the action is
to annul a voidable contract under Article 139012 of the Civil Code. In
such a case, the four-year prescriptive period under Article
139113 begins to run from the time of discovery of the mistake,
violence, intimidation, undue influence or fraud.

In the present case, REMEDIOS does not seek to annul the

KASULATAN. REMEDIOS does not assail the KASULATAN as a
voidable contract. In fact, REMEDIOS admits the validity of the sale of
1,335 square meters of land under the KASULATAN. However,
REMEDIOS alleges that the excess area of 1,335 meters is not part of
the sale under the KASULATAN. REMEDIOS seeks the removal of
this excess area from TCT No. (232252) 1321 that was issued to
CONSOLACION. Consequently, REMEDIOS’ action is for "Annulment
or Cancellation of Transfer Certificate [of Title] and Damages."14

REMEDIOS’ action is based on an implied trust under Article 1456

since she claims that the inclusion of the additional 1,335 square
meters in TCT No. (232252) 1321 was without basis. In effect,
REMEDIOS asserts that CONSOLACION acquired the additional
1,335 square meters through mistake or fraud and thus
CONSOLACION should be considered a trustee of an implied trust for
the benefit of the rightful owner of the property. Clearly, the applicable
prescriptive period is ten years under Article 1144 and not four years
under Articles 1389 and 1391.

It is now well-settled that the prescriptive period to recover property

obtained by fraud or mistake, giving rise to an implied trust under
Article 145615 of the Civil Code, is ten years pursuant to Article
1144.16 This ten-year prescriptive period begins to run from the date
the adverse party repudiates the implied trust, which repudiation takes
place when the adverse party registers the land.17

REMEDIOS filed her complaint on 4 February 1988 or more than 19

years after CONSOLACION registered her title over Lot Nos. 2-A and
2-E on 28 October 1968. Unquestionably, REMEDIOS filed the
complaint late thus warranting its dismissal. As the Court recently
declared in Spouses Alfredo v. Spouses Borras,18 —

Following Caro,19 we have consistently held that an action for

reconveyance based on an implied trust prescribes in ten years. We
went further by specifying the reference point of the ten-year
prescriptive period as the date of the registration of the deed or the
issuance of the title.

The Court of Appeals’ Reckoning of

Prescriptive Period from Actual Notice

of Adverse Title Not Justified

In holding that the action filed by REMEDIOS has not prescribed, the
Court of Appeals invoked this Court’s ruling in Adille v. Court of
Appeals.20 In Adille, the Court reckoned the ten-year prescriptive
period for enforcing implied trusts not from registration of the adverse
title but from actual notice of the adverse title by the cestui que trust.
However, the Court, in justifying its deviation from the general rule,
explained:

[W]hile actions to enforce a constructive trust prescribes (sic) in ten

years, reckoned from the date of the registration of the property, we x
x x are not prepared to count the period from such date in this
case. We note the petitioner’s sub rosa efforts to get hold of the
property exclusively for himself beginning with his fraudulent
misrepresentation in his unilateral affidavit of extrajudicial settlement
that he is "the only heir and child of his mother Feliza["] with the
consequence that he was able to secure title in his name also.
(Emphasis supplied)

Such commission of specific fraudulent conduct is absent in the

present case. Other than asserting that petitioners are guilty of fraud
because they secured title to Lot Nos. 2-A and 2-E with an area twice
bigger than what CANUTO allegedly sold to CONSOLACION,
REMEDIOS did not present any other proof of petitioners’ fraudulent
conduct akin to Adille.

CONSOLACION obtained title to Lot Nos. 2-A and 2-E through the
KASULATAN executed by CANUTO and the JOINT AFFIDAVIT
executed by his surviving children, one of whom, Felicidad, is the
mother of REMEDIOS. The KASULATAN referred to the sale of
CANUTO’s 10/70 share in Lot 2 without specifying the area of the lot
sold. The JOINT AFFIDAVIT referred to the "Plano de Subdivision
Psd-34713" without also specifying the area of the lot sold. However,
Subdivision Plan Psd 34713, as certified by the Assistant Director of
Lands on 30 May 1952, showed an area of 2,670 square meters in the
name of CANUTO. Based on these documents, the Register of Deeds
issued TCT No. (232252) 1321 to CONSOLACION covering an area
of 2,670 square meters.

REMEDIOS does not assail the KASULATAN or the JOINT

AFFIDAVIT as fictitious or forged. REMEDIOS even admits the
authenticity of Subdivision Plan Psd 34713 as certified by the
Assistant Director of Lands.21 Moreover, REMEDIOS has not
contested petitioners’ claim that CANUTO doubled his share in Lot 2
by acquiring VICTORIANO’s share.22

Plainly, the increase in the area sold from 1,335 square meters to
2,670 square meters is a glaring mistake. There is, however, no proof
whatsoever that this increase in area was the result of fraud.
Allegations of fraud in actions to enforce implied trusts must be proved
by clear and convincing evidence.23 Adille, which is anchored on
fraud,24cannot apply to the present case.

At any rate, even if we apply Adille to this case, prescription still bars
REMEDIOS’ complaint. As executrix of CATALINA’s LAST WILL,
REMEDIOS submitted to the then Court of First Instance of Caloocan
in Special Proceedings Case No. C-208 the inventory of all the
property comprising CATALINA’s estate, which included Lot Nos. 2-A
and 2-E. In a motion dated 7 November 1977, CONSOLACION
sought the exclusion of these lots from the inventory, invoking her title
over them. REMEDIOS was served a copy of the motion on 8
November 1977 against which she filed an opposition. Nevertheless,
the trial court overruled REMEDIOS’ objection. In its order of 3
January 1978, the trial court granted CONSOLACION’s motion and
ordered the exclusion of Lot Nos. 2-A and 2-E from the estate of
CATALINA. REMEDIOS did not appeal from this ruling.

REMEDIOS thus had actual notice of petitioners’ adverse title on 8

November 1977. Even if, for the sake of argument, the ten-year
prescriptive period begins to run upon actual notice of the adverse
title, still REMEDIOS’ right to file this suit has prescribed. REMEDIOS
had until 11 November 1987 within which to file her complaint. When
she did so on 4 February 1988, the prescriptive period had already
lapsed.

Respondent is Not a Real Party-in-Interest

Not only does prescription bar REMEDIOS’ complaint. REMEDIOS is

also not a real party-in-interest who can file the complaint, as the trial
court correctly ruled.

The 1997 Rules of Civil Procedure require that every action must be
prosecuted or defended in the name of the real party-in-interest who is
the party who stands to benefit or suffer from the judgment in the
suit.25 If one who is not a real party-in-interest brings the action, the
suit is dismissible for lack of cause of action.26

REMEDIOS anchored her claim over Lot Nos. 2-A and 2-E (or over its
one-half portion) on the devise of these lots to her under CATALINA’s
LAST WILL. However, the trial court found that the probate court did
not issue any order admitting the LAST WILL to probate. REMEDIOS
does not contest this finding. Indeed, during the trial, REMEDIOS
admitted that Special Proceedings Case No. C-208 is still pending.27

Article 838 of the Civil Code states that "[N]o will shall pass either real
or personal property unless it is proved and allowed in accordance
with the Rules of Court." This Court has interpreted this provision to
mean, "until admitted to probate, [a will] has no effect whatever and no
right can be claimed thereunder."28 REMEDIOS anchors her right in
filing this suit on her being a devisee of CATALINA’s LAST WILL.
However, since the probate court has not admitted CATALINA’s LAST
WILL, REMEDIOS has not acquired any right under the LAST WILL.
REMEDIOS is thus without any cause of action either to seek
reconveyance of Lot Nos. 2-A and 2-E or to enforce an implied trust
over these lots.

The appellate court tried to go around this deficiency by ordering the

reconveyance of Lot Nos. 2-A and 2-E to REMEDIOS in her capacity
as executrix of CATALINA’s LAST WILL. This is inappropriate
because REMEDIOS sued petitioners not in such capacity but as the
alleged owner of the disputed lots. Thus, REMEDIOS alleged in her
complaint:

3. The plaintiff is a niece and compulsory heir of the late CATALINA

SIOSON who died single and without any child of her own and who,
during her lifetime, was the owner of those two (2) parcels of land
located at Tanza, Navotas, Rizal (now Metro Manila), formerly
covered by Original Certificate of Title No. 4207 of the Registry of
Deeds for the Province of Rizal, x x x.

4. The plaintiff, aside from being the compulsory heir of the deceased
CATALINA SIOSON, has sole and exclusive claim of ownership over
the above-mentioned two (2) parcels of land by virtue of a will or
"Huling Habilin at Pagpapasiya" executed by Catalina Sioson on May
19, 1964 before Notary Public Efren Y. Angeles at Navotas, Rizal, in
which document the deceased Catalina Sioson specifically and
exclusively bequeathed to the plaintiff the above-mentioned Lots 2-A
and 2-E of Psd-34713 approved by the Bureau of Lands on May 30,
1952. Copy of the "Huling Habilin at Pagpapasiya" consisting of four
(4) pages is hereto attached and forms an integral part hereof as
Annex "A;"

5. Sometime on or about February, 1987, plaintiff discovered that the

above-mentioned Lots 2-A and 2-E of subdivision plan Psd-34713 are
now registered or titled in the name of the defendants under Transfer
Certificate of Title No. (232252) 1321 of the Registry of Deeds of
Rizal, now Metro-Manila District III. Copy of the title is hereto attached
and forms an integral part hereof as Annex "B;"

6. Upon further inquiry and investigation, plaintiff discovered that the

defendants were able to obtain title in their name of the said parcels of
land by virtue of a "Kasulatan ng Bilihang Tuluyan" allegedly executed
by Canuto Sioson on September 26, 1956 before Notary Public Jose
[T.] de los Santos of Navotas, Metro-Manila. Copy of the said
document is hereto attached and forms an integral part hereof as
Annex "C;"

7. The plaintiff also discovered that although x x x the original sale did
not specify the parcels of land sold by Canuto Sioson, the defendants
submitted an alleged Affidavit executed by Felicidad Sioson and
Beatriz Sioson identifying the lots sold by Canuto Sioson to the
defendants as Lots 2-A and 2-E of subdivision plan Psd-34713. Copy
of the Affidavit dated October 3, 1968 on the basis of which the
present Transfer Certificate of Title No. (232252) 1321 was issued to
the defendants is hereto attached and forms an integral part hereof as
Annex "D;"

8. The defendants are clearly guilty of fraud in presenting the

aforementioned Affidavit (Annex "D") to the Register of Deeds as the
basis of their claim to Lots 2-A and 2-E in view of the fact that the
parcels sold to them by Canuto Sioson, assuming there was such a
sale, were different parcels of land, Lots 2-A and 2-E being the
properties of the late Catalina Sioson who bequeathed the same to
the plaintiff.

xxxx

12. Because of the defendants’ fraudulent actuations on this matter,

plaintiff suffered and continious [sic] to suffer moral damages arising
from anxiety, shock and wounded feelings. Defendants should also be
assessed exemplary damages by way of a lesson to deter them from
again committing the fraudulent acts, or acts of similar nature, by
virtue of which they were able to obtain title to the parcels of land
involved in this case x x x.29 (Emphasis supplied)
Indeed, all throughout the proceedings below and even in her
Comment to this petition, REMEDIOS continued to pursue her claim
as the alleged owner of one-half of the disputed lots.

Other Matters Raised in the Petition

The Court deems it unnecessary to pass upon the other errors

petitioners assigned concerning the award of damages and attorneys
fees to REMEDIOS. Such award assumes that REMEDIOS is a real
party-in-interest and that she timely filed her complaint. As earlier
shown, this is not the case.

WHEREFORE, we GRANT the petition. The Decision of the Court of

Appeals dated 31 January 1994 and its Resolution dated 15 June
1994 are SET ASIDE. The complaint filed by respondent Remedios
Eugenio-Gino, dated 2 February 1988 is DISMISSED.
G.R. No. 144915             February 23, 2004

CAROLINA CAMAYA, FERDINAND CAMAYA, EDGARDO

CAMAYA and ANSELMO MANGULABNAN,petitioners 
vs.
BERNARDO PATULANDONG, respondent.

DECISION

CARPIO-MORALES, J.:

Before this Court is a petition for review on certiorari under Rule 45 of

the 1997 Revised Rules of Court seeking the reversal of the Court of
Appeals Decision dated June 19, 2000 in CA-G.R. CV No. 53757, "In
re: Petition for the Probate of the Codicil (Will) of Rufina Reyes;
Bernardo Patulandong v. Anselmo Mangulabnan v. Carolina G.
Camaya, Ferdinand Camaya and Edgardo Camaya."

On November 17, 1972, Rufina Reyes (testatrix) executed a notarized

will wherein she devised, among others, Lot No. 288-A to her
grandson Anselmo Mangulabnan (Mangulabnan). The pertinent
portion of her will reads:

IKALIMA. - Aking inihahayag at ginagawa na tagapagmana, sa aking

kusang loob, ang pinalaki kong APO na si ANSELMO P.
MANGULABNAN, may sapat na gulang, kasal kay Flora Umagap, at
naninirahan sa San Lorenzo, Gapan, Nueva Ecija, at anak ng aking
anak na si SIMPLICIA, at sa aking APO na si ANSELMO ay aking
ipinagkakaloob at ipinamamana, sa aking pagkamatay, ang mga
sumusunod kong pagaari:

LOT NO. TITLE NO. KINALALAGYAN NABANGGIT SA

288-A NT-47089 Sta. Cruz (1) p. 2
3348-A 100629 Poblacion (2) p. 2
3349-B 100630 Poblacion (3) p. 2
xxx1 (Underscoring in the original; emphasis supplied)

The testatrix’s son Bernardo Patulandong (Patulandong), respondent

herein, was in the will appointed as the executor.

During her lifetime, the testatrix herself filed a petition for the probate
of her will before the then Court of First Instance (CFI) of Nueva Ecija
where it was docketed as Sp. Pro. No. 128.

By Order2 of January 11, 1973, the CFI admitted the will to probate.

On June 27, 1973, the testatrix executed a codicil modifying above-

quoted paragraph five of her will in this wise:

UNA. - Ang Lote No. 288-A na nakalagay sa barrio ng Sta. Cruz,

Gapan, Nueva Ecija, magsukat 36,384 metro cuadrados, at
nagtataglay ng TCT No. NT-47089, na aking ipinamana sa aking
apong si ANSELMO P. MANGULABNAN, sangayon sa Pangkat IKA-
LIMA, pp. 5-6, ng aking HULING HABILIN (Testamento), ay ipinasiya
kong ipagkaloob at ipamana sa aking mga anak na sina BERNARDO,
SIMPLICIA, GUILLERMA at JUAN nagaapellidong PATULANDONG,
at sa aking apong si ANSELMO P. MANGULABNAN, sa
magkakaparehong bahagi na tig-ikalimang bahagi bawat isa sa kanila.

IKALAWA. - Na maliban sa pagbabagong ito, ang lahat ng mga

tadhana ng aking HULING HABILIN ay aking pinagtitibay na muli.

x x x3 (Underscoring in the original; emphasis supplied) On May 14,

1988, the testatrix died.

Mangulabnan later sought the delivery to him by executor

Patulandong of the title to Lot 288-A. Patulandong refused to heed the
request, however, in view of the codicil which modified the testator’s
will.

Mangulabnan thus filed an "action for partition" against Patulandong

with the Regional Trial Court of Gapan, Nueva Ecija, docketed as Civil
Case No. 552 (the partition case).
On June 8, 1989, the trial court rendered a decision in the partition
case,4 the dispositive portion of which reads:

WHEREFORE, the court orders the partitioning of the properties and

the defendant to deliver the copy of the Transfer Certificate of Title No.
NT-47089.

However, in view of the case cited by the plaintiff himself, the court
holds that the partition is without prejudice
[to]... the probate of the codicil in accordance with the Rules of Court,
[P]alacios vs. Catimbang Palacios cited by the plaintiff:

"After a will has been probated during the lifetime of the testator, it
does not necessarily mean that he cannot alter or revoke the same
before his death. Should he make a new will, it would also be
allowable of his petition and if he should die before he had a chance to
present such petition, the ordinary probate proceedings after the
testator’s death would be in order."

The Court also orders that the right of the tenants of the agricultural
land in question should be protected meaning to say that the tenants
should not be ejected. (Emphasis and underscoring supplied)

On July 17, 1989 Patulandong filed before the Regional Trial Court of
Nueva Ecija a petition5 for probate of the codicil of the testatrix,
docketed as Sp. Proc. No. 218.

On December 28, 1989, the probate court issued an Order6 setting the

petition for hearing and ordering the publication of said order.

On February 7, 1991, by virtue of the decision in the partition case,

Mangulabnan caused the cancellation of the title of the testatrix over
Lot No. 288-A and TCT No. NT-2157507 was issued in his name.

Mangulabnan later sold to herein petitioners Camayas Lot No. 288-A

by a Deed of Sale dated February 19, 1991.8TCT No. NT-215750 was
thus cancelled and TCT No. NT-2164469 was issued in the name of
the Camayas.
On January 16, 1996, the trial rendered a decision10 in Sp. Proc. No.
218 admitting the codicil to probate and disposing as follows:

WHEREFORE, in view of all the foregoing, judgment is hereby

rendered in the following manner:

1. Declaring Transfer Certificate of Title No. NT-215750 issued

by the Register of Deeds of Nueva Ecija in the name of Anselmo
Mangulabnan dated February 7, 1991 and the Deed of Absolute
Sale executed by him in favor of the intervenors Carolina,
Ferdinand and Edgardo, all surnamed Camaya on February 19,
1991 and Transfer Certificate of Title No. NT-216446 under date
March 18, 1991 issued in the names of the above-named
intervenors as NULL and VOID and of no force and effect; and,

2. Ordering the Register of Deeds of Nueva Ecija to cancel

Transfer of Certificate of Title Nos. NT-215750 and NT-216446
and reissue the corresponding Certificate of Titles to Bernardo R.
Patulandong, Filipino, married to Gorgonia Mariano residing at
San Vicente, Gapan, Nueva Ecija, Juan R. Patulandong, Filipino,
widower and residing at San Lorenzo, Gapan, Nueva Ecija;
Guillerma R. Patulandong Linsangan of legal age, Filipino,
widow and residing at San Vicente, Gapan, Nueva Ecija,
Simplicia R. Patulandong Mangulabnan, of legal age, widow, and
residing at San Lorenzo, Gapan, Nueva Ecija and her grandson,
Anselmo Mangulabnan with full personal circumstances stated
herein to the extent of one fifth (1/5) each pursuant to the
approved codicil (will) of Rufina Reyes dated June 27, 1973.11

The Camayas who had been allowed to intervene in Sp. Proc. No.
218, and Mangulabnan, filed a Motion for Reconsideration of the
above-said decision but it was denied by Order12 of February 28,1996.

On appeal to the Court of Appeals, the Camayas and Mangulabnan

(hereinafter referred to as petitioners) raised the following errors:

1. THERE WERE SERIOUS SUBSTANTIAL DEPARTURES

FROM THE FORMALITIES REQUIRED BY THE RULES, THE
 LAW, AND THE AUTHORITY OF THE REGIONAL TRIAL
COURT SETTING AS A PROBATE COURT.

2. THE OPPOSITOR DID NOT ONLY ACQUIRE LOT NO. 288-A

BY WILL BUT HE ALSO ACQUIRED THE SAME BY
PARTITION IN A CIVIL CASE WHERE THE DECISION HAS
ALREADY REACHED ITS FINALITY AND THEREFORE CAN
NO LONGER BE NEGATED BY A QUESTIONABLE CODICIL.

3. THAT THE SUBJECT LOT 288-A IS NO LONGER WITHIN

THE REACHED (sic) OF THE PETITIONER CONSIDERING
THAT THE OPPOSITOR VENDOR HAD A CLEAN TITLE AND
THAT THE INTERVENORS-VENDEED HAD ACQUIRED THE
SAME BY WAY OF SALE AS INNOCENT PURCHASER IN
GOOD FAITH AND FOR VALUE.13

By Decision14 of June 19, 2000, the Court of Appeals affirmed that of

the trial court.

Hence, the present petition for Review on Certiorari proffering the

following issues:

1. Whether the probate court exceeded its jurisdiction when it

declared null and void and ordered the cancellation of the TCTs
of petitioners and the deed of sale; and

2. Whether the final judgment in Civil Case No. 552 bars the
allowance of the codicil.

As to the first issue, petitioners contend that the under the law, the
probate court has no power, authority, and jurisdiction to declare null
and void the sale and titles of petitioners;15 and that the probate court
can only resolve the following issues:

1. Whether or not the instrument which is offered for probate is

the last will and testament of the decedent; in other words, the
question is one of identity[;]
 2. Whether or not the will has been executed in accordance with
the formalities prescribed by law; in other words, the question is
one of due execution[; and]

3. Whether the testator had testamentary capacity at the time of

the execution of the will; in other words, the question is one of
capacity.16

In Cuizon v. Ramolete,  17 this Court elucidated on the limited

jurisdiction of a probate court, to wit:

It is well-settled rule that a probate court or one in charge of

proceedings whether testate or intestate cannot adjudicate or
determine title to properties claimed to be a part of the estate and
which are equally claimed to belong to outside parties. All that said
court could do as regards said properties is to determine whether they
should or should not be included in the inventory or list of properties to
be administered by the administrator. If there is no dispute, well and
good; but if there is, then the parties, the administrator, and the
opposing parties have to resort to an ordinary action for a final
determination of the conflicting claims of title because the probate
court cannot do so.

xxx

Having been apprised of the fact that the property in question was in
the possession of third parties and more important, covered by a
transfer certificate of title issued in the name of such third parties, the
respondent court should have denied the motion of the respondent
administrator and excluded the property in question from the inventory
of the property of the estate. It had no authority to deprive such third
persons of their possession and ownership of the property. x x x
(Emphasis and underscoring supplied)

Following Cuizon, the probate court exceeded its jurisdiction when it

further declared the deed of sale and the titles of petitioners null and
void, it having had the effect of depriving them possession and
ownership of the property.
Moreover, following Section 48 of the Property Registry Decree which
reads:

SECTION 48. Certificate not subject to collateral attack. - A certificate

of title shall not be subject to collateral attack. It cannot be altered,
modified, or cancelled except in a direct proceeding in accordance
with law,

petitioners’ titles cannot, under probate proceedings, be declared null

and void.

As to the second issue, petitioners argue that by allowing the codicil to

probate, it in effect amended the final judgment in the partition case
which is not allowed by law;18 and that petitioner Camayas are
innocent purchasers for value and enjoy the legal presumption that the
transfer was lawful.19

Petitioners’ first argument does not persuade.

Though the judgment in the partition case had become final and
executory as it was not appealed, it specifically provided in its
dispositive portion that the decision was "without prejudice [to] ...
the probate of the codicil." The rights of the prevailing parties in said
case were thus subject to the outcome of the probate of the codicil.

The probate court being bereft of authority to rule upon the validity of
petitioners’ titles, there is no longer any necessity to dwell on the
merits of petitioners Camayas’ claim that they are innocent purchasers
for value and enjoy the legal presumption that the transfer was lawful.

WHEREFORE, the petition is GRANTED IN PART.

The Decision of the Court of Appeals dated June 19, 2000 in CA-G.R.
CV No. 53757 affirming the January 16, 1996 Decision of Regional
Trial Court, Branch 35, of Gapan, Nueva Ecija, is hereby AFFIRMED
with MODIFICATION.

The decision allowing the codicil is AFFIRMED, but the 1) declaration

as null and void of Transfer Certificate of Title No. NT-215750 issued
on February 7, 1991 by the Register of Deeds of Nueva Ecija in the
name of Anselmo Mangulabnan, the February 19, 1991 Deed of
Absolute Sale executed by him in favor of the intervenors - herein
petitioners Carolina, Ferdinand and Edgardo Camaya, and Transfer
Certificate of Title No. NT-216446 issued on March 18, 1991 in favor
of the petitioners Camayas, and 2) the order for the Register of Deeds
of Nueva Ecija to cancel Transfer of Certificate of Title Nos. NT-
215750 and NT-216446 and reissue the corresponding Certificate of
Titles to Bernardo R. Patulandong, Juan R. Patulandong, Guillerma R.
Patulandong Linsangan, Simplicia R. Patulandong Mangulabnan, and
Anselmo Mangulabnan to the extent of one-fifth (1/5) each pursuant to
the approved codicil are SET ASIDE, without prejudice to respondent
and his co-heirs’ ventilation of their right in an appropriate action.
G.R. No. 168156             December 6, 2006

HEIRS OF ROSENDO LASAM, Represented by Rogelio Lasam

and Atty. Edward P. Llonillo, petitioners, 
vs.
VICENTA UMENGAN, respondent.

DECISION

CALLEJO, SR., J.:

Before the Court is the petition for review on certiorari filed by the

Heirs of Rosendo Lasam, represented by Rogelio M. Lasam and Atty.
Edward P. Llonillo, seeking the reversal of the Decision1 dated
February 16, 2005 of the Court of Appeals (CA) in CA-G.R. SP No.
80032. The assailed decision reversed and set aside the decision of
the Regional Trial Court (RTC) of Tuguegarao City, Cagayan and
dismissed, for lack of merit, the complaint for unlawful detainer file by
the said heirs against respondent Vicenta Umengan.

The RTC decision affirmed that of the Municipal Trial Court in Cities
(MTCC) of the same city, Branch III, which had rendered judgment in
favor of the heirs of Rosendo Lasam and directed the ejectment of
respondent Vicenta Umengan from the lot subject of litigation.

The present petition likewise seeks the reversal of the CA Resolution

dated May 17, 2005 denying the motion for reconsideration filed by
the heirs of Rosendo Lasam.

As culled from the records, the backdrop of the present case is as

follows –
The lot subject of the unlawful detainer case is situated in Tuguegarao
City, Cagayan. It is the eastern half portion of Lot No. 5427 and Lot
No. 990. The first lot, Lot No. 5427 containing an area of 1,037 square
meters, is covered by Original Certificate of Title (OCT) No. 196. The
second lot, Lot No. 990 containing an area of 118 sq m, is covered by
OCT No. 1032. These lots are registered in the names of the original
owners, spouses Pedro Cuntapay and Leona Bunagan.

In an instrument denominated as Deed of Confirmation and

acknowledged before a notary public on June 14, 1979, the heirs of
the said spouses conveyed the ownership of Lots Nos. 990 and 5427
in favor of their two children, Irene Cuntapay and Isabel Cuntapay. In
another instrument entitled Partition Agreement and acknowledged
before a notary public on December 28, 1979, it was agreed that the
eastern half portion (subject lot) of Lots Nos. 990 and 5427 shall
belong to the heirs of Isabel Cuntapay. On the other hand, the
remaining portion thereof (the west portion) shall belong to the heirs of
Irene Cuntapay. The subject lot (eastern half portion) has an area of
554 sq m.

Isabel Cuntapay had four children by her first husband, Domingo

Turingan, namely: Abdon, Sado (deceased), Rufo and Maria. When
Domingo Turingan passed away, Isabel Cuntapay remarried Mariano
Lasam. She had two other children by him, namely: Trinidad and
Rosendo.

Sometime in January 2001, the heirs of Rosendo Lasam (son of

Isabel Cuntapay by her second husband) filed with the MTCC a
complaint for unlawful detainer against Vicenta Umengan, who was
then occupying the subject lot. Vicenta Umengan is the daughter of
Abdon Turingan (son of Isabel Cuntapay by her first husband).

In their complaint, the heirs of Rosendo Lasam alleged that they are
the owners of the subject lot, having inherited it from their father.
Rosendo Lasam was allegedly the sole heir of the deceased Pedro
Cuntapay through Isabel Cuntapay. During his lifetime, Rosendo
Lasam allegedly temporarily allowed Vicenta Umengan to occupy the
subject lot sometime in 1955. The latter and her husband allegedly
promised that they would vacate the subject lot upon demand.
However, despite written notice and demand by the heirs of Rosendo
Lasam, Vicenta Umengan allegedly unlawfully refused to vacate the
subject lot and continued to possess the same. Accordingly, the heirs
of Rosendo Lasam were constrained to institute the action for
ejectment.

In her Answer with Counterclaim, Vicenta Umengan specifically

denied the material allegations in the complaint. She countered that
when Isabel Cuntapay passed away, the subject lot was inherited by
her six children by her first and second marriages through intestate
succession. Each of the six children allegedly had a pro indiviso share
of 1/6 of the subject lot.

It was further alleged by Vicenta Umengan that her father, Abdon

Turingan, purchased the respective 1/6 shares in the subject lot of his
siblings Maria and Sado. These conveyances were allegedly
evidenced by the Deed of Sale dated March 3, 1975, appearing as
Doc. No. 88, Page No. 36, Book No. XIV, series of 1975 of the notarial
book of Atty. Pedro Lagui.

Prior thereto, Rufo already sold his 1/6 share in the subject lot to
Vicenta Umengan and her husband as evidenced by the Deed of Sale
dated June 14, 1961, appearing as Doc. No. 539, Page No. 41, Book
No. V, series of 1961 of the notarial book of Atty. Pedro Lagui. Also on
June 14, 1961, Abdon donated his 1/6 share in the subject lot to her
daughter Vicenta Umengan as evidenced by the Deed of Donation
appearing as Doc. No. 538, Page No. 41, Book No. V, series of 1961
of the notarial book of the same notary public.

According to Vicenta Umengan, the children of Isabel Cuntapay by her

second husband (Rosendo and Trinidad Lasam) own only 2/6 portion
of the subject lot. She thus prayed that the complaint for ejectment be
dismissed and that the heirs of Rosendo Lasam be ordered to pay her
damages.

The MTCC rendered judgment in favor of the heirs of Rosendo Lasam

and directed the ejectment of Vicenta Umengan. In so ruling, the
MTCC gave credence to the newly discovered last will and testament
(entitled Testamento Abierto) purportedly executed by Isabel
Cuntapay where she bequeathed the subject lot to her son, Rosendo
Lasam, thus:

x x x my share 1/5th (one-fifth) of the Cuntapay heirs, bordered

on the North by Sr. Elia Canapi; to the South, by Calle
Aguinaldo; to the East, by Calle P. Burgos and the West, by the
late Don Luis Alonso; on the property which is my share stands a
house of light materials where I presently reside; this 1/5th (one-
fifth) share of my inheritance from the Cuntapays I leave to my
son Rosendo Lasam and also the aforementioned house of light
material x x x2

The MTCC reasoned that the heirs of Rosendo Lasam anchored their
claim over the subject lot on the last will and testament of Isabel
Cuntapay while Vicenta Umengan hinged hers on intestate
succession and legal conveyances. Citing jurisprudence3 and Article
10804 of the Civil Code, the MTCC opined that testacy was favored
and that intestacy should be avoided and the wishes of the testator
should prevail. It observed that the last will and testament of Isabel
Cuntapay was not yet probated as required by law; nonetheless, the
institution of a probate proceeding was not barred by prescription.

With the finding that the subject lot was already bequeathed by Isabel
Cuntapay to Rosendo Lasam, the MTCC held that the siblings Abdon,
Sado, Rufo and Maria Turingan no longer had any share therein.
Consequently, they could not convey to Vicenta Umengan what they
did not own. On the issue then of who was entitled to possession of
the subject lot, the MTCC ruled in favor of the heirs of Rosendo
Lasam as it found that Vicenta Umengan’s possession thereof was by
mere tolerance. The dispositive portion of the MTCC decision reads:

WHEREFORE, in the light of the foregoing considerations, this

Court Resolve[d] to order the EJECTMENT of VICENTA T.
UMENGAN and in her place INSTITUTE THE HEIRS OF
ROSENDO LASAM.
 It is further ordered the defendant shall pay the Heirs of Rosendo
Lasam the sum of P500.00 pesos representing the monthly
rental of the land from August 2000 to the time this case shall
have been terminated.

Ordering the defendant to pay the plaintiffs the amount

of P20,000.00 attorney’s fees plus cost of this litigation.

So Ordered.5

On appeal, the RTC affirmed in toto the decision of the MTCC. The

RTC echoed the reasoning of the MTCC that the testamentary
disposition of the property of Isabel Cuntapay should be respected,
and that the heirs of Rosendo Lasam have a better right to possess
the subject lot.

Undaunted, Vicenta Umengan filed an appeal with the CA. She

argued that the MTCC had no jurisdiction over the case as it involved
the recovery of ownership of the subject lot, not merely recovery
of possession or unlawful detainer. She also assailed the RTC’s and
the MTCC’s holding that the purported Testamento Abierto of Isabel
Cuntapay prevails over Vicenta Umengan’s muniments of title and,
consequently, the heirs of Rosendo Lasam have a better right to the
subject lot than Vicenta Umengan.

In the assailed Decision dated February 16, 2005, the CA reversed

and set aside the decision of the RTC. The appellate court
preliminarily upheld the jurisdiction of the MTCC over the subject
matter as it found that the allegations in the complaint made out a
case for unlawful detainer. The heirs of Rosendo Lasam in their
complaint, according to the CA, only sought for Vicenta Umengan to
vacate and surrender possession of the subject lot. The CA also
rejected the contention of the heirs of Rosendo Lasam that the issue
of ownership of the subject lot had already been settled in another
case, Civil Case No. 4917, before RTC (Branch 3) of Tuguegarao
City. The CA stated that the trial court’s order dismissing the said case
was not a "judgment on the merits" as to constitute res judicata.
However, the CA declared that the RTC, as well as the MTCC, erred
in ruling that, by virtue of the purported last will and testament of
Isabel Cuntapay, the heirs of Rosendo Lasam have a better right to
the subject lot over Vicenta Umengan. The CA explained that the said
last will and testament did not comply with the formal requirements of
the law on wills.6

Specifically, the CA found that the pages of the purported last will and
testament were not numbered in accordance with the law. Neither did
it contain the requisite attestation clause. Isabel Cuntapay as testator
and the witnesses to the will did not affix their respective signatures on
the second page thereof. The said instrument was likewise not
acknowledged before a notary public by the testator and the
witnesses. The CA even raised doubts as to its authenticity, noting
that while Isabel Cuntapay died in 1947 and the heirs of Rosendo
Lasam claimed that they discovered the same only in 1997, a date –
May 19, 1956 – appears on the last page of the purported will. The CA
opined that if this was the date of execution, then the will was
obviously spurious. On the other hand, if this was the date of its
discovery, then the CA expressed bafflement as to why the heirs of
Rosendo Lasam, through their mother, declared in the Partition
Agreement dated December 28, 1979 that Isabel Cuntapay died
intestate.

It was observed by the CA that as against these infirmities in the claim

of the heirs of Rosendo Lasam, Vicenta Umengan presented a Deed
of Sale and a Deed of Donation to justify her possession of the subject
lot. The CA noted that she has also possessed the subject property
since 1955. Such prior possession, the CA held, gave Vicente
Umengan the right to remain in the subject lot until a person with a
better right lawfully ejects her. The heirs of Rosendo Lasam do not
have such a better right. The CA stressed that the ruling on the issue
of physical possession does not affect the title to the subject lot nor
constitute a binding and conclusive adjudication on the merits on the
issue of ownership. The parties are not precluded from filing the
appropriate action to directly contest the ownership of or the title to the
subject lot.
The decretal portion of the assailed decision of the CA reads:

WHEREFORE, premises considered, the appeal is GRANTED.

The August 29, 2003 decision of the RTC, Branch 1,
Tuguegarao City, Cagayan in Civil Case No. 5924 is hereby
REVERSED and SET ASIDE. Private respondents’ complaint for
unlawful detainer against petitioner is dismissed for lack of merit.

SO ORDERED.7

The heirs of Rosendo Lasam sought the reconsideration thereof but

their motion was denied by the CA in its Resolution dated May 17,
2005.

The heirs of Rosendo Lasam (petitioners) now come to the Court

alleging that the CA committed reversible error in setting aside the
decision of the RTC, which had affirmed that of the MTCC, and
dismissing their complaint for unlawful detainer against respondent
Vicenta Umengan.

Petitioners argue that the CA erred when it held, on one hand, that the
MTCC had jurisdiction over the subject matter of the complaint as the
allegations therein make out a case for unlawful detainer but, on the
other hand, proceeded to discuss the validity of the last will and
testament of Isabel Cuntapay.

Petitioners insist that respondent is holding the subject lot by mere

tolerance and that they, as the heirs of Rosendo Lasam who was the
rightful owner of the subject lot, have a better right thereto. It was
allegedly error for the CA to declare the last will and testament of
Isabel Cuntapay as null and void for its non-compliance with the
formal requisites of the law on wills. The said matter cannot be
resolved in an unlawful detainer case, which only involves the issue of
material or physical possession of the disputed property. In any case,
they maintain that the said will complied with the formal requirements
of the law.
It was allegedly also erroneous for the CA to consider in respondent’s
favor the deed of sale and deed of donation covering portions of the
subject lot, when these documents had already been passed upon by
the RTC (Branch 3) of Tuguegarao City in Civil Case No. 4917 when it
dismissed the respondent’s complaint for partition of the subject lot.
The said order allegedly constituted res judicata and may no longer be
reviewed by the CA.

Petitioners emphasize that in an unlawful detainer case, the only issue

to be resolved is who among the parties is entitled to the physical or
material possession of the property in dispute. On this point, the
MTCC held (and the same was affirmed by the RTC) that petitioners
have a better right since the "merely tolerated" possession of the
respondent had already expired upon the petitioners’ formal demand
on her to vacate. In support of this claim, they point to the affidavit of
Heliodoro Turingan, full brother of the respondent, attesting that the
latter’s possession of the subject lot was by mere tolerance of
Rosendo Lasam who inherited the same from Isabel Cuntapay.

According to petitioners, respondent’s predecessors-in-interest from

whom she derived her claim over the subject lot by donation and sale
could not have conveyed portions thereof to her, as she had claimed,
because until the present, it is still covered by OCT Nos. 196 and
1032 under the names of Pedro and Leona Cuntapay. Their
respective estates have not been settled up to now.

It is also the contention of petitioners that the CA should have

dismissed outright respondent’s petition filed therewith for failure to
comply with the technical requirements of the Rules of Court.
Specifically, the petition was not allegedly properly verified, lacked
statement of material dates and written explanation on why personal
service was not made.

This last contention of petitioners deserves scant consideration. The

technical requirements for filing an appeal are not sacrosanct. It has
been held that while the requirements for perfecting an appeal must
be strictly followed as they are considered indispensable interdictions
against needless delays and for orderly discharge of judicial business,
the law does admit of exceptions when warranted by
circumstances.8 In the present case, the CA cannot be faulted in
choosing to overlook the technical defects of respondent’s appeal.
After all, technicality should not be allowed to stand in the way of
equitably and completely resolving the rights and obligations of the
parties.9

The Court shall now resolve the substantive issues raised by

petitioners.

It is well settled that in ejectment suits, the only issue for resolution is
the physical or material possession of the property involved,
independent of any claim of ownership by any of the party litigants.
However, the issue of ownership may be provisionally ruled upon for
the sole purpose of determining who is entitled to possession de
facto.10

In the present case, petitioners base their claim of right to possession

on the theory that their father, Rosendo Lasam, was the sole owner of
the subject lot by virtue of the newly discovered last will and testament
of Isabel Cuntapay bequeathing the same to him. Respondent is
allegedly holding the subject lot by mere tolerance of Rosendo Lasam
and, upon the petitioners’ formal demand on her to vacate the same,
respondent’s right to possess it has expired.

On the other hand, respondent hinges her claim of possession on the

legal conveyances made to her by the children of Isabel Cuntapay by
her first husband, namely, Maria, Rufo, Sado and Abdon. These
conveyances were made through the sale and donation by the said
siblings of their respective portions in the subject lot to respondent as
evidenced by the pertinent deeds.

The CA correctly held that, as between the respective claims of

petitioners and respondent, the latter has a better right to possess the
subject lot.

As earlier stated, petitioners rely on the last will and testament of

Isabel Cuntapay that they had allegedly newly discovered. On the
basis of this instrument, the MTCC and RTC ruled that petitioners
have a better right to the possession of the subject lot because,
following the law on succession, it should be respected and should
prevail over intestate succession.

However, contrary to the ruling of the MTCC and RTC, the purported
last will and testament of Isabel Cuntapay could not properly be relied
upon to establish petitioners’ right to possess the subject lot because,
without having been probated, the said last will and testament could
not be the source of any right.

Article 838 of the Civil Code is instructive:

Art. 838. No will shall pass either real or personal property

unless it is proved and allowed in accordance with the Rules of
Court.

The testator himself may, during his lifetime, petition the court
having jurisdiction for the allowance of his will. In such case, the
pertinent provisions of the Rules of Court for the allowance of
wills after the testator’s death shall govern.

The Supreme Court shall formulate such additional Rules of

Court as may be necessary for the allowance of wills on petition
of the testator.

Subject to the right of appeal, the allowance of the will, either

during the lifetime of the testator or after his death, shall be
conclusive as to its due execution.

In Cañiza v. Court of Appeals,11 the Court ruled that: "[a] will is

essentially ambulatory; at any time prior to the testator’s death, it may
be changed or revoked; and until admitted to probate, it has no effect
whatever and no right can be claimed thereunder, the law being quite
explicit: ‘No will shall pass either real or personal property unless it is
proved and allowed in accordance with the Rules of Court.’"12

Dr. Tolentino, an eminent authority on civil law, also explained that

"[b]efore any will can have force or validity it must be probated. To
probate a will means to prove before some officer or tribunal, vested
by law with authority for that purpose, that the instrument offered to be
proved is the last will and testament of the deceased person whose
testamentary act it is alleged to be, and that it has been executed,
attested and published as required by law, and that the testator was of
sound and disposing mind. It is a proceeding to establish the validity
of the will."13 Moreover, the presentation of the will for probate is
mandatory and is a matter of public policy.14

Following the above truisms, the MTCC and RTC, therefore,

erroneously ruled that petitioners have a better right to possess the
subject lot on the basis of the purported last will and testament of
Isabel Cuntapay, which, to date, has not been probated. Stated in
another manner, Isabel Cuntapay’s last will and testament, which has
not been probated, has no effect whatever and petitioners cannot
claim any right thereunder.

Hence, the CA correctly held that, as against petitioners’ claim,

respondent has shown a better right of possession over the subject lot
as evidenced by the deeds of conveyances executed in her favor by
the children of Isabel Cuntapay by her first marriage.

Contrary to the claim of petitioners, the dismissal of respondent’s

action for partition in Civil Case No. 4917 before the RTC (Branch 3)
of Tuguegarao City does not constitute res judicata on the matter of
the validity of the said conveyances or even as to the issue of the
ownership of the subject lot. The order dismissing respondent’s action
for partition in Civil Case No. 4917 stated thus:

For resolution is a motion to dismiss based on defendants’

[referring to the petitioners herein] affirmative defenses
consisting inter alia in the discovery of a last will and testament
of Isabel Cuntapay, the original owner of the land in dispute.

xxx

It appears, however, that the last will and testament of the late
Isabel Cuntapay has not yet been allowed in probate, hence,
 there is an imperative need to petition the court for the allowance
of said will to determine once and for all the proper legitimes of
legatees and devisees before any partition of the property may
be judicially adjudicated.

It is an elementary rule in law that testate proceedings take

precedence over any other action especially where the will
evinces the intent of the testator to dispose of his whole estate.

With the discovery of the will of the late Isabel Cuntapay in favor
of the defendants, the Court can order the filing of a petition for
the probate of the same by the interested party.

WHEREFORE, in light of the foregoing considerations, let the

above-entitled case be as it is hereby DISMISSED.

SO ORDERED.15

For there to be res judicata, the following elements must be present:

(1) finality of the former judgment; (2) the court which rendered it had
jurisdiction over the subject matter and the parties; (3) it must be a
judgment on the merits; and (4) there must be, between the first and
second actions, identity of parties, subject matter and causes of
action.16 The third requisite, i.e., that the former judgment must be a
judgment on the merits, is not present between the action for partition
and the complaint a quo for unlawful detainer. As aptly observed by
the CA:

Our reading of the Orders (dated June 16, 1997 and October 13,
1997) in Civil Case No. 4917 reveals that the RTC, Branch 3,
Tuguegarao, Cagayan, dismissed the complaint for partition
because of the discovery of the alleged last will and testament of
Isabel Cuntapay. The court did not declare respondents
[referring to the petitioners herein] the owners of the disputed
property. It simply ordered them to petition the court for the
allowance of the will to determine the proper legitimes of the
heirs prior to any partition. Instead of filing the appropriate
petition for the probate of Isabel Cuntapay’s will, the respondents
 filed the present complaint for unlawful detainer. Viewed from
this perspective, we have no doubt that the court’s Orders cited
by the respondents are not "judgments on the merits" that would
result in the application of the principle of res judicata. Where the
trial court merely refrained from proceeding with the case and
granted the motion to dismiss with some clarification without
conducting a trial on the merits, there is no res judicata.17

Further, it is not quite correct for petitioners to contend that the

children of Isabel Cuntapay by her first marriage could not have
conveyed portions of the subject lot to respondent, as she had
claimed, because until the present, it is still covered by OCT Nos. 196
and 1032 under the names of Pedro and Leona Cuntapay. To recall, it
was already agreed by the heirs of the said spouses in a Partition
Agreement dated December 28, 1979 that the subject lot would
belong to Isabel Cuntapay. The latter died leaving her six children by
both marriages as heirs. Considering that her purported last will and
testament has, as yet, no force and effect for not having been
probated, her six children are deemed to be co-owners of the subject
lot having their respective pro indiviso shares. The conveyances made
by the children of Isabel Cuntapay by her first marriage of their
respective pro indiviso shares in the subject lot to respondent are valid
because the law recognizes the substantive right of heirs to dispose of
their ideal share in the co-heirship and/co-ownership among the heirs.
The Court had expounded the principle in this wise:

This Court had the occasion to rule that there is no doubt that an
heir can sell whatever right, interest, or participation he may
have in the property under administration. This is a matter which
comes under the jurisdiction of the probate court.

The right of an heir to dispose of the decedent’s property, even if

the same is under administration, is based on the Civil Code
provision stating that the possession of hereditary property is
deemed transmitted to the heir without interruption and from the
moment of the death of the decedent, in case the inheritance is
accepted. Where there are however, two or more heirs, the
 whole estate of the decedent is, before its partition, owned in
common by such heirs.

The Civil Code, under the provisions of co-ownership, further

qualifies this right. Although it is mandated that each co-owner
shall have the full ownership of his part and of the fruits and
benefits pertaining thereto, and thus may alienate, assign or
mortgage it, and even substitute another person in its enjoyment,
the effect of the alienation or the mortgage, with respect to the
co-owners, shall be limited to the portion which may be allotted
to him in the division upon the termination of the co-ownership.
In other words, the law does not prohibit a co-owner from selling,
alienating or mortgaging his ideal share in the property held in
common.

As early as 1942, this Court has recognized said right of an heir

to dispose of property under administration. In the case of Teves
de Jakosalem vs. Rafols, et al., it was said that the sale made by
an heir of his share in an inheritance, subject to the result of the
pending administration, in no wise, stands in the way of such
administration. The Court then relied on the provision of the old
Civil Code, Article 440 and Article 399 which are still in force as
Article 533 and Article 493, respectively, in the new Civil Code.
The Court also cited the words of a noted civilist, Manresa:
"Upon the death of a person, each of his heirs ‘becomes the
undivided owner of the whole estate left with respect to the part
or portion which might be adjudicated to him, a community of
ownership being thus formed among the co-owners of the estate
which remains undivided.’"18

Contrary to the assertion of petitioners, therefore, the conveyances

made by the children of Isabel Cuntapay by her first marriage to
respondent are valid insofar as their pro indiviso shares are
concerned. Moreover, the CA justifiably held that these conveyances,
as evidenced by the deed of donation and deed of sale presented by
respondent, coupled with the fact that she has been in possession of
the subject lot since 1955, establish that respondent has a better right
to possess the same as against petitioners whose claim is largely
based on Isabel Cuntapay’s last will and testament which, to date, has
not been probated; hence, has no force and effect and under which no
right can be claimed by petitioners. Significantly, the probative value of
the other evidence relied upon by petitioners to support their claim,
which was the affidavit of Heliodoro Turingan, was not passed upon
by the MTCC and the RTC. Their respective decisions did not even
mention the same.

In conclusion, it is well to stress the CA’s admonition that –

x x x our ruling on the issue of physical possession does not

affect title to the property nor constitute a binding and conclusive
adjudication on the merits on the issue of ownership. The parties
are not precluded from filing the appropriate action directly
contesting the ownership of or the title to the property.19

Likewise, it is therefore in this context that the CA’s finding on the

validity of Isabel Cuntapay’s last will and testament must be
considered. Such is merely a provisional ruling thereon for the sole
purpose of determining who is entitled to possession de facto.

WHEREFORE, premises considered, the petition is DENIED. The

assailed Decision dated February 16, 2005 and the Resolution dated
May 17, 2005 of the Court of Appeals in CA-G.R. SP No. 80032
are AFFIRMED.
G.R. No. L-12207           December 24, 1959

JUAN PALACIOS, petitioner-appellant, 
vs.
MARIA CATIMBANG PALACIOS, oppositor-appellee.

Augusto Francisco and Vicente Reyes Villavicencio for appellant.

Laureano C. Alano and Enrique A. Amador for appellee.

BAUTISTA ANGELO, J.:

Juan Palacios executed his last will and testament on June 25, 1946
and availing himself of the provisions of the new Civil Code, he filed
on May 23, 1956 before the Court of First Instance of Batangas a
petition for its approval. In said will, he instituted as his sole heirs his
natural children Antonio C. Palacios and Andrea C. Palacios.

On June 21, 1956, Maria Catimbang filed a opposition to the probate

of the will alleging that she is the acknowledged natural daughter of
petitioner but that she was completely ignored in said will thus
impairing here legitime.

After the presentation of petitioner's evidence relative to the essential

requisites and formalities provided by law for the validity of a will, the
court on July 6, 1956 issued an order admitting the will to probate. The
court, however, set a date for the hearing of the opposition relative to
the intrinsic validity of the will and, after proper hearing concerning this
incident, the court issued another order declaring oppositor to be the
natural child of petitioner and annulling the will insofar as it impairs her
legitime, with costs against petitioner.

From this last order, petitioner gave notice of his intention to appeal
directly to the Supreme Court, and accordingly, the record was
elavated to this Court.
It should be noted that petition instituted the present proceeding in
order to secure the probate of his will availing himself of the provisions
of Article 838, paragraph 2, of the new Civil Code, which permit a
testator to petition the proper court during his lifetime for the allowance
of his will, but to such petition on Maria Catimbang filed an opposition
alleging that she is the acknowledged natural daughter of petitioner
but that she was completely ignored in the will thus impairing her
object to the probate of the will insofar as it due execution is
concerned or on the ground that it has not complied with the
formalities prescribed by law; rather she objects to its intrinsic validity
or to the legality of the provisions of the will.

We hold that such opposition cannot be entertained in this proceeding

because its only purpose is merely to determine if the will has been
executed in accordance with the requirements of the law, much less if
the purpose of the opposition is to show that the oppositor is an
acknowledged natural child who allegedly has been ignored in the will
for issue cannot be raised here but in a separate action. This is
especially so when the testator, as in the present case, is still alive
and has merely filed a petition for the allowance of his will leaving the
effects thereof after his death.
lawphi1.net

This is in line with our ruling in Montañano vs. Suesa, 14 Phil., 676,
wherein we said: "The authentication of the will decides no other
questions 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 a will. It does not determine nor even by
implication prejudge the validity or efficiency of the provisions; that
may be impugned as being vicious or null, notwithstanding its
authentication. The questions relating to these points remain entirely
un-affected, and may be raised even after the will has been
authenticated."

On the other hand, "after a will has been probated during the lifetime
of a testator, it does not necessarily mean that he cannot alter or
revoke the same before he has had a chance to present such petition,
the ordinary probate proceedings after the testator's death would be in
order" (Report of the Code Commission, pp. 53-54).The reason for
this comment is that the rights to the succession are transmitted from
the moment of the death of the decedent (Article 777, new Civil
Code.).

It is clear that the trial court erred in entertaining the opposition and in
annulling the portion of the will which allegedly impairs the legitime of
the oppositor on the ground that, as it has found, she is an extraneous
matter which should be treshed out in a separate action. Wherefore,
the order appealed from is set aside, without pronouncement as to
costs.
G.R. No. L-16763 December 22, 1921

PASCUAL COSO, petitioner-appellant, 
vs.
FERMINA FERNANDEZ DEZA, ET AL., objectors-appellees.

Eduardo Gutierrez Repide & Felix Socias for appellant. 

Jose Varela Calderon & Benito Jimenez Zoboli for appellees.

OSTRAND, J.:

This is an appeal from a decision of the Court of First Instance of

Manila setting aside a will on the ground of undue influence alleged to
have been exerted over the mind of a testator by one Rosario Lopez.
The will gives the tercio de libre disposicion to an illegitimate son had
by the testator with said Rosario Lopez, and also provides for the
payment to her of nineteen hundred Spanish duros by way the
reimbursement for expenses incurred by her in taking care of the
testator in Barcelona during the years 1909 to 1916, when he is
alleged to have suffered from a severe illness.

The evidence shows that the testator, a married man and resident of
the Philippine Islands, became acquainted with Rosario Lopez in
Spain in 1898 and that he had illicit returns with her for many years
thereafter. After his return to the Philippines she followed him, arriving
in Manila in February, 1918, and remained in close communication
with him until his death in February, 1919. There is no doubt that she
exercised some influence over him and the only question for our
determination is whether this influence was of such a character as to
vitiate the will.

The English and American rule in regard to undue influence is thus

stated in 40 Cyc., 1144-1149.
 Mere general or reasonable influence over a testator is not
sufficient to invalidate a will; to have that effect the influence
must be "undue." The rule as to what constitutes "undue
influence" has been variously stated, but the substance of the
different statements is that, to be sufficient to avoid a will, the
influence exerted must be of a kind that so overpowers and
subjugates the mind of the testator as to destroy his free agency
and make his express the will of another, rather than his own. 1awphil.net

. . . such influence must be actually exerted on the mind of the

testator in regard to the execution of the will in question, either at
time of the execution of the will, or so near thereto as to be still
operative, with the object of procuring a will in favor of particular
parties, and it must result in the making of testamentary
dispositions which the testator would not otherwise have
made. . . .

. . . and while the same amount of influence may become

"undue" when exercised by one occupying an improper and
adulterous relation to testator, the mere fact that some influence
is exercised by a person sustaining that relation does not
invalidate a will, unless it is further shown that the influence
destroys the testator's free agency.

The burden is upon the parties challenging the will to show that undue
influence, in the sense above expressed, existed at the time of its
execution and we do not think that this burden has been carried in the
present case. While it is shown that the testator entertained strong
affections for Rosario Lopez, it does not appear that her influence so
overpowered and subjugated his mind as to "destroy his free agency
and make him express the will of another rather than his own." He
was an intelligent man, a lawyer by profession, appears to have
known his own mind, and may well have been actuated only by a
legitimate sense of duty in making provisions for the welfare of his
illegitimate son and by a proper feeling of gratitude in repaying
Rosario Lopez for the sacrifices she had made for him. Mere affection,
even if illegitimate, is not undue influence and does not invalidate a
will. No imposition or fraud has been shown in the present case.
 Influence gained by kindness and affection will not be regarded
as `undue,' if no imposition or fraud be practiced, even though it
induces the testator to make an unequal and unjust disposition of
his property in favor of those who have contributed to his comfort
and ministered to his wants, if such disposition is voluntarily
made. (Mackall vs. Mackall, 135 U. S., 1677.)

It may be further observed that under the Civil Law the right of a
person with legal heirs to dispose of his property by will is limited to
only a portion of his estate, and that under the law in force in these
Islands before the enactment of the Code of Civil Procedure, the only
outside influences affecting the validity of a will were duress, deceit,
and fraud. The present doctrine of undue influence originated in a
legal system where the right of the testator to dispose of his property
by will was nearly unlimited. Manifestly, greater safeguards in regard
to execution of wills may be warranted when the right to so dispose of
property is unlimited than when it is restricted to the extent it is in this
jurisdiction. There is, therefore, certainly no reason for giving the
doctrine of undue influence a wider scope here than it enjoys in the
United States.

For the reasons stated, the decision of the lower court disallowing the
will of Federico Gimenez Zoboli is hereby reversed and it is ordered
that the will be admitted to probate. No costs will be allowed. So
ordered.
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
1

dispositive portion of which reads;

PREMISES CONSIDERED, the questioned decision of

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

The earlier Decision was rendered by the RTC of Quezon City,

Branch 94,   in Sp. Proc. No. Q-37171, and the instrument
2

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 omitted.)
3

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
4

that the decedent did 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 to probate, the only
5

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
7

the New Civil Code, thus:

A person may execute a holographic will which must be

entirely written, dated, and signed by the hand of the
testator himself. It is subject to no other form, and may be
made in or out of the Philippines, and need not be
witnessed. (Emphasis supplied.)

Failure to strictly observe other formalities will not result in the

disallowance of a holographic will that is unquestionably
handwritten by the testator.

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

Likewise, a holographic will can still be admitted to probate,

notwithstanding non-compliance with the provisions of Article 814. In
the case of Kalaw vs. Relova 132 SCRA 237 242 (1984), this Court
held:

Ordinarily, when a number of erasures, corrections, and

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

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
9

itself.   The lack of authentication will only result in disallowance of

10

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
11

indubitably stated in her holographic will that the Cabadbaran property

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

IN VIEW WHEREOF, the instant petition is GRANTED. The Decision

of the Court of Appeals in CA-G.R. CV No. 22840, dated March 30,
1992, is REVERSED and SET ASIDE, except with respect to the
invalidity of the disposition of the entire house and lot in Cabadbaran,
Agusan del Norte. The Decision of the Regional Trial Court of Quezon
City, Branch 94 in Sp. Proc. No. Q-37171, dated November 19, 1988,
admitting to probate the holographic will of decedent Annie Sand, is
hereby REINSTATED, with the above qualification as regards the
Cabadbaran property. No costs.
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.
G.R. No. 168660               June 30, 2009

HILARION, JR. and ENRICO ORENDAIN, represented by FE D.

ORENDAIN, Petitioners,1 
vs.
TRUSTEESHIP OF THE ESTATE OF DOÑA MARGARITA
RODRIGUEZ, Respondent.

DECISION

NACHURA, J.:

This petition for certiorari, filed under Rule 65 of the Rules of Court,
assails the Order2 of the Regional Trial Court (RTC) of Manila, Branch
4 in SP. PROC. No. 51872 which denied petitioners’ (Hilarion, Jr. and
Enrico Orendain, heirs of Hilarion Orendain, Sr.) Motion to Dissolve
the Trusteeship of the Estate of Doña Margarita Rodriguez.

First, we revisit the long settled facts.

On July 19, 1960, the decedent, Doña Margarita Rodriguez, died in

Manila, leaving a last will and testament. On September 23, 1960, the
will was admitted to probate by virtue of the order of the Court of First
Instance of Manila City (CFI Manila) in Special Proceeding No. 3845.
On August 27, 1962, the CFI Manila approved the project of partition
presented by the executor of Doña Margarita Rodriguez’s will.

At the time of her death, the decedent left no compulsory or forced

heirs and, consequently, was completely free to dispose of her
properties, without regard to legitimes,3 as provided in her will. Some
of Doña Margarita Rodriguez’s testamentary dispositions
contemplated the creation of a trust to manage the income from her
properties for distribution to beneficiaries specified in the will, to wit:

xxxx

CLAUSULA SEGUNDA O PANG-DALAWA: - x x x Ipinaguutos ko na

matapos magawa ang pagaayos ng aking Testamentaria at masara
na ang Expediente ng aking Testamentaria, ang lahat ng pagaare ko
sa aking ipinaguutos na pangasiwaan sa habang panahon ay
ipagbukas sa Juzgado ng tinatawag na "FIDEICOMISO" at ang
ilalagay na "fideicomisario" ang manga taong nasabi ko na sa itaas
nito, at ang kanilang gaganahin ay ang nasasabi sa testamentong ito
na gaganahen ng tagapangasiwa at albacea. x x x x

CLAUSULA TERCERA O PANG-TATLO: - Ipinaguutos ko na ang

kikitain ng lahat ng aking pagaare, na ang hindi lamang kasama ay
ang aking lupain na nasasabi sa Certificado de Transferencia de
Titulo No. 7156 (Lote No. 1088-C), Certificado Original de Titulo No.
4588 (LOTE No. 2492), Certificado Original de Titulo No. 4585 (Lote
No. 1087) ng lalawigan ng Quezon, at ang bahaging maytanim na
palay ng lupang nasasaysay sa Certificado Original de Titulo No. 4587
(Lote No. 1180) ng Quezon, ay IIPUNIN SA BANCO upang maibayad
sa anillaramiento, ang tinatawag na "estate Tax", ang "impuesto de
herencia" na dapat pagbayaran ng aking pinagbibigyan na kasama na
din ang pagbabayaran ng "Fideicomiso", gastos sa abogado na
magmamakaalam ng testamentaria at gastos sa Husgado. Ngunit
bago ipasok sa Banco ang kikitaen ng nabangit na manga gagaare,
ay aalisin muna ang manga sumusunod na gastos:

xxxx

CLAUSULA DECIMA O PANG-SAMPU: - Ipinaguutos ko na ang

manga pagaareng nasasabi sa Clausulang ito ay pangangasiwaan sa
habang panahon, at ito nga ang ipagbubukas ng "Fideicomiso" sa
Jusgado pagkatapos na maayos ang naiwanan kong pagaare. Ang
pangangasiwaang pagaare ay ang manga sumusunod:

xxxx

Ang lahat ng pagaaring nasasabe sa Clusulang ito (hindi kasama ang

"generator" at automovil) hindi maisasanla o maipagbibili kailan man,
maliban sa pagaaring nasa Quezon Boulevard, Maynila, na maaring
isanla kung walang fondo na gagamitin sa ipagpapaigui o
ipagpapagawa ng panibago alinsunod sa kaayusang hinihingi ng
panahon.
xxxx

CLAUSULA DECIMA SEGUNDA O PANG-LABING DALAWA: - Ang

kuartang matitipon sa Banco ayon sa tagubilin na nasasaysay sa
Clausulang sinusundan nito ay gagamitin sa manga sumusunod na
pagkakagastusan; at ganito din ang gagawin sa lahat ng aking
pagaare na nasasakop ng fideicomiso at walang ibang pinaguukulan.
Ang pagkakagastusan na ito ay ang sumusunod:

xxxx

CLAUSULA VIGESIMA CUARTA O PANG-DALAWANGPU AT APAT:

- Ipinaguutos ko sa aking manga Tagapangasiwa na sa fondong
ipinapasok sa Banco para sa gastos ng Niña Maria, Misa at iba pa,
kukuha sila na kakailanganin para maitulong sa manga sumusunod:
Florentina Luna, Roberta Ponce, Marciada Ponce, Benita Ponce,
Constancia Pineda, Regino Pineda, Tomas Payumo, Rosito Payumo,
Loreto Payumo, Brigido Santos at Quintin Laino, Hilarion Orendain at
manga anak. Ang manga dalaga kung sakali at inabutan ng
pagkamatay ko na ako ay pinagtiisan at hindi humiwalay sa akin, kung
magkasakit ay ipagagamot at ibabayad sa medico, at ibibili ng gamot,
at kung kailangan ang operacion ay ipaooperacion at ipapasok sa
Hospital na kinababagayan ng kaniyang sakit, at kahit
maypagkakautang pa sa "impuesto de herencia at estate tax" ay
ikukuha sa nasabing fondo at talagang ibabawas doon, at ang
paggagamot ay huag pagtutuusan, at ang magaalaga sa kanya ay
bibigyan ng gastos sa pagkain at sa viaje at iba pa na manga
kailangan ng nagaalaga. Kung nasa provincia at dadalhin ditto sa
Maynila ay bibigyan ng gastos sa viaje ang maysakit at ang kasama
sa viaje, at ang magaalaga ay dito tutuloy sa bahay sa Tuberias at
Tanduay na natatalaga sa manga may servicio sa akin, at kung
mamatay at gusting iuwi sa provincia ang bangkay ay iupa at doon
ilibing at dapit ng Pare at hated sa nicho na natotoka sa kanya. Ganito
din ang gagawain kung mayasawa man ay nasa poder ko ng ako ay
mamatay. Ang wala sa poder ko datapua at nagservicio sa akin,
kaparis ng encargado, ang gagawaing tulong ay ipagagamot, ibibili ng
gamot at kung kailangan ang operacion o matira sa Hospital,
ipaooperacion at ipagbabayad sa Hospital.4 (emphasis supplied)
xxxx

As regards Clause 10 of the will which explicitly prohibits the

alienation or mortgage of the properties specified therein, we had
occasion to hold, in Rodriguez, etc., et al. v. Court of Appeals, et
al.,5 that the clause, insofar as the first twenty-year period is
concerned, does not violate Article 8706 of the Civil Code. We
declared, thus:

The codal provision does not need any interpretation. It speaks

categorically. What is declared void is the testamentary disposition
prohibiting alienation after the twenty-year period. In the interim, such
a provision does not suffer from the vice of invalidity. It cannot be
stricken down. Time and time again, We have said, and We now
repeat, that when a legal provision is clear and to the point, there is no
room for interpretation. It must be applied according to its literal terms.

Even with the purpose that the testatrix had in mind were not as
unequivocal, still the same conclusion emerges. There is no room for
intestacy as would be the effect if the challenged resolution of January
8, 1968 were not set aside. The wishes of the testatrix constitute the
law. Her will must be given effect. This is so even if there could be an
element of uncertainty insofar as the ascertainment thereof is
concerned. In the language of a Civil Code provision: "If a
testamentary disposition admits of different interpretations, in case of
doubt, that interpretation by which the disposition is to be operative
shall be preferred." Nor is this all. A later article of the Civil Code
equally calls for observance. Thus: "The words of a will are to receive
an interpretation which will give to every expression some effect,
rather than one which will render any of the expressions inoperative;
and of two modes of interpreting a will, that is to be preferred which
will prevent intestacy."

xxxx

Nothing can be clearer, therefore, than that [Petra, Antonia and Rosa,
all surnamed Rodriguez] could not challenge the provision in question.
[They] had no right to vindicate. Such a right may never arise. The
twenty-year period is still with us. What would transpire thereafter is
still locked up in the inscrutable future, beyond the power of mere
mortals to foretell. At any rate, We cannot anticipate. Nor should We.
We do not possess the power either of conferring a cause of action to
a party when, under the circumstances disclosed, it had none.7

Almost four decades later, herein petitioners Hilarion, Jr. and Enrico
Orendain, heirs of Hilarion Orendain, Sr. who was mentioned in
Clause 24 of the decedent’s will, moved to dissolve the trust on the
decedent’s estate, which they argued had been in existence for more
than twenty years, in violation of Articles 8678 and 870 of the Civil
Code, and inconsistent with our ruling in Rodriguez v. Court of
Appeals.9

On April 18, 2005, the RTC issued the herein assailed Order:10

The above-cited provisions of the civil code find no application in the

present motion to dissolve the trust created by the testatrix. There is
no question that the testamentary disposition of Doña Margarita
Rodriguez prohibiting the mortgage or sale of properties mentioned in
clause X of her Last Will and Testament forevermore is void after the
lapse of the twenty year period. However, it does not mean that the
trust created by [the] testatrix in order to carry out her wishes under
clauses 12, 13 and 24 will also become void upon expiration of the
twenty year period. As ruled by the Supreme Court in Emetrio
Barcelon v. CA, "the codal provision cited in Art. 870 is clear and
unequivocal and does not need any interpretation. What is declared
void is the testamentary disposition prohibiting alienation after the
twenty year period." Hence, the trustees may dispose of the properties
left by the testatrix in order to carry out the latter’s testamentary
disposition.

The question as to whether a trust can be perpetual, the same finds

support in Article 1013[,] paragraph 4 of the Civil Code, which
provides that "the Court, at the instance of an interested party or its
motion, may order the establishment of a permanent trust so that only
the income from the property shall be used." In the present case, the
testatrix directed that all the twenty five (25) pieces of property listed in
the tenth clause should be placed under the trusteeship and should be
perpetually administered by the trustees and a certain percentage of
the income from the trust estate should be deposited in a bank and
should be devoted for the purposes specifically indicated in the
clauses 12, 13 and 24. 1awphi1

The wishes of the testatrix constitute the law. Her will must be given
effect. This is even if there could be an element of uncertainty insofar
as the ascertainment thereof is concerned. This Court so emphatically
expressed it in a decision rendered more than sixty years ago. Thus,
respect for the will of a testator as [an] expression of his last
testamentary disposition, constitutes the principal basis of the rules
which the law prescribes for the correct interpretation of all of the
clauses of the will; the words and provision therein written must be
plainly construed in order to avoid a violation of his intentions and real
purpose. The will of the testator clearly and explicitly stated must be
respected and complied with as an inviolable law among the parties in
interest. Such is the doctrine established by the Supreme Court of
Spain, constantly maintained in a great number of decisions.

Hence, this petition, positing the following issues:

1. WHETHER THE TRUSTEESHIP OVER THE PROPERTIES

LEFT BY DOÑA MARGARITA RODRIGUEZ CAN BE
DISSOLVED APPLYING ARTICLES 867 AND 870 OF THE
CIVIL CODE.

2. WHETHER THE LOWER COURT IS CORRECT IN STATING

THAT THE ABOVE-CITED PROVISIONS OF THE CIVIL CODE
FINDS NO APPLICATION IN THE PRESENT MOTION TO
DISSOLVE THE TRUST CREATED BY THE TESTATRIX.

3. CONCOMITANT THERETO, [WHETHER] THE LOWER

COURT [IS] CORRECT IN APPLYING ARTICLE 1013
PARAGRAPH 4 OF THE CIVIL CODE.11

Before we delve into the foregoing issues, it is noteworthy that the

present petition, albeit captioned as a petition for certiorari, is actually
a petition for review on certiorari, raising only pure questions of law.
On more than one occasion, we have allowed erroneously labeled
actions based on the averments contained in the petition or
complaint.12 Thus, we now disregard the incorrect designation and
treat this as a petition for review on certiorari under Rule 45 of the
Rules of Court.

The petition is impressed with merit.

The issues being intertwined, we shall discuss them jointly.

Quite categorical from the last will and testament of the decedent is
the creation of a perpetual trust for the administration of her properties
and the income accruing therefrom, for specified beneficiaries. The
decedent, in Clause 10 of her will, listed a number of properties to be
placed under perpetual administration of the trust. In fact, the
decedent unequivocally forbade the alienation or mortgage of these
properties. In all, the decedent did not contemplate the disposition of
these properties, but only sought to bequeath the income derived
therefrom to various sets of beneficiaries.

On this score, we held in Rodriguez v. Court of Appeals13 that the

perpetual prohibition was valid only for twenty (20) years. We affirmed
the CA’s holding that the trust stipulated in the decedent’s will
prohibiting perpetual alienation or mortgage of the properties violated
Articles 867 and 870 of the Civil Code. However, we reversed and set
aside the CA’s decision which declared that that portion of the
decedent’s estate, the properties listed in Clause 10 of the will, ought
to be distributed based on intestate succession, there being no
institution of heirs to the properties covered by the perpetual trust.

As previously quoted, we reached a different conclusion and upheld

the trust, only insofar as the first twenty-year period is concerned. We
refrained from forthwith declaring the decedent’s testamentary
disposition as void and the properties enumerated in Clause 10 of the
will as subject to intestate succession. We held that, in the interim,
since the twenty-year period was then still upon us, the wishes of the
testatrix ought to be respected.
Thus, at present, there appears to be no more argument that the trust
created over the properties of the decedent should be dissolved as the
twenty-year period has, quite palpably, lapsed.

Notwithstanding the foregoing, the RTC ruled otherwise and held that:
(a) only the perpetual prohibition to alienate or mortgage is declared
void; (b) the trust over her properties stipulated by the testatrix in
Clauses 12, 13 and 24 of the will remains valid; and (c) the trustees
may dispose of these properties in order to carry out the latter’s
testamentary disposition.

We disagree.

Apparent from the decedent’s last will and testament is the creation of
a trust on a specific set of properties and the income accruing
therefrom. Nowhere in the will can it be ascertained that the decedent
intended any of the trust’s designated beneficiaries to inherit these
properties. The decedent’s will did not institute any heir thereto, as
clearly shown by the following:

1. Clause 2 instructed the creation of trust;

2. Clause 3 instructed that the remaining income from specified

properties, after the necessary deductions for expenses,
including the estate tax, be deposited in a fund with a bank;

3. Clause 10 enumerated the properties to be placed in trust for

perpetual administration (pangasiwaan sa habang panahon);

4. Clauses 11 and 12 directed how the income from the

properties ought to be divided among, and distributed to the
different beneficiaries; and

5. Clause 24 instructed the administrators to provide medical

support to certain beneficiaries, to be deducted from the fund
deposits in the bank mentioned in Clauses 2 and 3.

Plainly, the RTC was mistaken in denying petitioners’ motion to

dissolve and ordering the disposition of the properties in Clause 10
according to the testatrix’s wishes. As regards these properties,
intestacy should apply as the decedent did not institute an heir
therefor. Article 782, in relation to paragraph 2, Article 960 of the Civil
Code, provides:

Art. 782. An heir is a person called to the succession either by the

provision of a will or by operation of law.

xxxx

Art. 960. Legal or intestate succession takes place:

xxxx

(2) When the will does not institute an heir to, or dispose of all the
property belonging to the testator. In such case, legal succession shall
take place only with respect to the property of which the testator has
not disposed;

xxx

We find as erroneous the RTC’s holding that paragraph 4,14 Article

1013 of the same code specifically allows a perpetual trust, because
this provision of law is inapplicable. Suffice it to state that the article is
among the Civil Code provisions on intestate succession, specifically
on the State inheriting from a decedent, in default of persons entitled
to succeed. Under this article, the allowance for a permanent trust,
approved by a court of law, covers property inherited by the State by
virtue of intestate succession. The article does not cure a void
testamentary provision which did not institute an heir. Accordingly, the
article cannot be applied to dispose of herein decedent’s properties.

We are not unmindful of our ruling in Palad, et al. v. Governor of

Quezon Province, et al.15 where we declared, thus:

Article 870 of the New Civil Code, which regards as void any
disposition of the testator declaring all or part of the estate inalienable
for more than 20 years, is not violated by the trust constituted by the
late Luis Palad; because the will of the testator does not interdict the
alienation of the parcels devised. The will merely directs that the
income of said two parcels be utilized for the establishment,
maintenance and operation of the high school.

Said Article 870 was designed "to give more impetus to the
socialization of the ownership of property and to prevent the
perpetuation of large holdings which give rise to agrarian troubles."
The trust herein involved covers only two lots, which have not been
shown to be a large landholding. And the income derived therefrom is
being devoted to a public and social purpose – the education of the
youth of the land. The use of said parcels therefore is in a sense
socialized. There is no hint in the record that the trust has spawned
agrarian conflicts.16

In this case, however, we reach a different conclusion as the testatrix

specifically prohibited the alienation or mortgage of her properties
which were definitely more than the two (2) properties in the aforecited
case. The herein testatrix’s large landholdings cannot be subjected
indefinitely to a trust because the ownership thereof would then
effectively remain with her even in the afterlife.

In light of the foregoing, therefore, the trust on the testatrix’s properties

must be dissolved and this case remanded to the lower court to
determine the following:

1. The properties listed in Clause 10 of the will, constituting the

perpetual trust, which are still within reach and have not been
disposed of as yet; and

2. The intestate heirs of the decedent, with the nearest relative of

the deceased entitled to inherit the remaining properties.

One final note. To obviate confusion, we clarify that the petitioners,

although correct in moving for the dissolution of the trust after the
twenty-year period, are not necessarily declared as intestate heirs of
the decedent. Our remand of the case to the RTC means that the
probate court should now make a determination of the heirship of the
intestate heirs of the decedent where petitioners, and all others
claiming to be heirs of the decedent, should establish their status as
such consistent with our ruling in Heirs of Yaptinchay v. Hon. del
Rosario.17

WHEREFORE, premises considered, the petition is GRANTED. The

Order of the Regional Trial Court of Manila, Branch 4 in SP. PROC.
No. 51872 is REVERSED and SET ASIDE. The trust approved by the
Regional Trial Court of Manila, Branch 4 in SP. PROC. No. 51872 is
DISSOLVED. We ORDER the Regional Trial Court of Manila, Branch
4 in SP. PROC. No. 51872 to determine the following:

1. the properties listed in Clause 10 of Doña Margarita

Rodriguez’s will, constituting the perpetual trust, which are still
within reach and have not been disposed of as yet; and

2. the intestate heirs of Doña Margarita Rodriguez, with the

nearest relative of the decedent entitled to inherit the remaining
properties.
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 proceedings5 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. 1âwphi1

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.
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.7 1avvphi1

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 99216 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 Damian22 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.
G.R. No. L-62952 October 9, 1985

SOFIA J. NEPOMUCENO, petitioner, 
vs.
THE HONORABLE COURT OF APPEALS, RUFINA GOMEZ,
OSCAR JUGO ANG, CARMELITA JUGO, respondents.

GUTIERREZ, JR., J.:

This is a petition for certiorari to set aside that portion of the decision
of the respondent Court of Appeals (now intermediate Appellate
Court) dated June 3, 1982, as amended by the resolution dated
August 10, 1982, declaring as null and void the devise in favor of the
petitioner and the resolution dated December 28, 1982 denying
petitioner's motion for reconsideration.

Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will
and Testament duly signed by him at the end of the Will on page three
and on the left margin of pages 1, 2 and 4 thereof in the presence of
Celestina Alejandro, Myrna C. Cortez, and Leandro Leano, who in
turn, affixed their signatures below the attestation clause and on the
left margin of pages 1, 2 and 4 of the Will in the presence of the
testator and of each other and the Notary Public. The Will was
acknowledged before the Notary Public Romeo Escareal by the
testator and his three attesting witnesses.

In the said Will, the testator named and appointed herein petitioner
Sofia J. Nepomuceno as his sole and only executor of his estate. It is
clearly stated in the Will that the testator was legally married to a
certain Rufina Gomez by whom he had two legitimate children, Oscar
and Carmelita, but since 1952, he had been estranged from his
lawfully wedded wife and had been living with petitioner as husband
and wife. In fact, on December 5, 1952, the testator Martin Jugo and
the petitioner herein, Sofia J. Nepomuceno were married in Victoria,
Tarlac before the Justice of the Peace. The testator devised to his
forced heirs, namely, his legal wife Rufina Gomez and his children
Oscar and Carmelita his entire estate and the free portion thereof to
herein petitioner. The Will reads in part:

Art. III. That I have the following legal heirs, namely: my

aforementioned legal wife, Rufina Gomez, and our son,
Oscar, and daughter Carmelita, both surnamed Jugo,
whom I declare and admit to be legally and properly
entitled to inherit from me; that while I have been estranged
from my above-named wife for so many years, I cannot
deny that I was legally married to her or that we have been
separated up to the present for reasons and justifications
known fully well by them:

Art. IV. That since 1952, 1 have been living, as man and
wife with one Sofia J. Nepomuceno, whom I declare and
avow to be entitled to my love and affection, for all the
things which she has done for me, now and in the past; that
while Sofia J. Nepomuceno has with my full knowledge and
consent, did comport and represent myself as her own
husband, in truth and in fact, as well as in the eyes of the
law, I could not bind her to me in the holy bonds of
matrimony because of my aforementioned previous
marriage;

On August 21, 1974, the petitioner filed a petition for the probate of
the last Will and Testament of the deceased Martin Jugo in the Court
of First Instance of Rizal, Branch XXXIV, Caloocan City and asked for
the issuance to her of letters testamentary.

On May 13, 1975, the legal wife of the testator, Rufina Gomez and her
children filed an opposition alleging inter alia that the execution of the
Will was procured by undue and improper influence on the part of the
petitioner; that at the time of the execution of the Will, the testator was
already very sick and that petitioner having admitted her living in
concubinage with the testator, she is wanting in integrity and thus,
letters testamentary should not be issued to her.
On January 6, 1976, the lower court denied the probate of the Will on
the ground that as the testator admitted in his Will to cohabiting with
the petitioner from December 1952 until his death on July 16, 1974,
the Will's admission to probate will be an Idle exercise because on the
face of the Will, the invalidity of its intrinsic provisions is evident.

The petitioner appealed to the respondent-appellate court.

On June 2, 1982, the respondent court set aside the decision of the
Court of First Instance of Rizal denying the probate of the will. The
respondent court declared the Will to be valid except that the devise in
favor of the petitioner is null and void pursuant to Article 739 in relation
with Article 1028 of the Civil Code of the Philippines. The dispositive
portion of the decision reads:

WHEREFORE, the decision a quo is hereby set aside, the

will in question declared valid except the devise in favor of
the appellant which is declared null and void. The
properties so devised are instead passed on in intestacy to
the appellant in equal shares, without pronouncement as to
cost.

On June 15, 1982, oppositors Rufina Gomez and her children filed a
"Motion for Correction of Clerical Error" praying that the word
"appellant" in the last sentence of the dispositive portion of the
decision be changed to "appellees" so as to read: "The properties so
devised are instead passed on intestacy to the appellees in equal
shares, without pronouncement as to costs." The motion was granted
by the respondent court on August 10, 1982.

On August 23, 1982, the petitioner filed a motion for reconsideration.

This was denied by the respondent court in a resolution dated
December 28, 1982.

The main issue raised by the petitioner is whether or not the

respondent court acted in excess of its jurisdiction when after
declaring the last Will and Testament of the deceased Martin Jugo
validly drawn, it went on to pass upon the intrinsic validity of the
testamentary provision in favor of herein petitioner.

The petitioner submits that the validity of the testamentary provision in

her favor cannot be passed upon and decided in the probate
proceedings but in some other proceedings because the only purpose
of the probate of a Will is to establish conclusively as against
everyone that a Will was executed with the formalities required by law
and that the testator has the mental capacity to execute the same.
The petitioner further contends that even if the provisions of paragraph
1 of Article 739 of the Civil Code of the Philippines were applicable,
the declaration of its nullity could only be made by the proper court in
a separate action brought by the legal wife for the specific purpose of
obtaining a declaration of the nullity of the testamentary provision in
the Will in favor of the person with whom the testator was allegedly
guilty of adultery or concubinage.

The respondents on the other hand contend that the fact that the last
Will and Testament itself expressly admits indubitably on its face the
meretricious relationship between the testator and the petitioner and
the fact that petitioner herself initiated the presentation of evidence on
her alleged ignorance of the true civil status of the testator, which led
private respondents to present contrary evidence, merits the
application of the doctrine enunciated in Nuguid v. Felix Nuguid, et
al. (17 SCRA 449) and Felix Balanay, Jr. v. Hon. Antonio Martinez, et
al. (G.R. No. L- 39247, June 27, 1975). Respondents also submit that
the admission of the testator of the illicit relationship between him and
the petitioner put in issue the legality of the devise. We agree with the
respondents.

The respondent court acted within its jurisdiction when after declaring
the Will to be validly drawn, it went on to pass upon the intrinsic
validity of the Will and declared the devise in favor of the petitioner null
and void.

The general rule is that in probate proceedings, the court's area of

inquiry is limited to an examination and resolution of the extrinsic
validity of the Will. The rule is expressed thus:
xxx xxx xxx

... It is elementary that a probate decree finally and

definitively settles all questions concerning capacity of the
testator and the proper execution and witnessing of his last
Will and testament, irrespective of whether its provisions
are valid and enforceable or otherwise. (Fernandez v.
Dimagiba, 21 SCRA 428)

The petition below being for the probate of a Will, the

court's area of inquiry is limited to the extrinsic validity
thereof. The testators testamentary capacity and the
compliance with the formal requisites or solemnities
prescribed by law are the only questions presented for the
resolution of the court. Any inquiry into the intrinsic validity
or efficacy of the provisions of the will or the legality of any
devise or legacy is premature.

xxx xxx xxx

True or not, the alleged sale is no ground for the dismissal

of the petition for probate. Probate is one thing; the validity
of the testamentary provisions is another. The first decides
the execution of the document and the testamentary
capacity of the testator; the second relates to descent and
distribution (Sumilang v. Ramagosa, 21 SCRA 1369)

xxx xxx xxx

To establish conclusively as against everyone, and once

for all, the facts that a will was executed with the formalities
required by law and that the testator was in a condition to
make a will, is the only purpose of the proceedings under
the new code for the probate of a will. (Sec. 625). The
judgment in such proceedings determines and can
determine nothing more. In them the court has no power to
pass upon the validity of any provisions made in the will. It
can not decide, for example, that a certain legacy is void
 and another one valid. ... (Castaneda v. Alemany, 3 Phil.
426)

The rule, however, is not inflexible and absolute. Given exceptional

circumstances, the probate court is not powerless to do what the
situation constrains it to do and pass upon certain provisions of the
Will.

In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the

testator instituted the petitioner as universal heir and completely
preterited her surviving forced heirs. A will of this nature, no matter
how valid it may appear extrinsically, would be null and void. Separate
or latter proceedings to determine the intrinsic validity of the
testamentary provisions would be superfluous.

Even before establishing the formal validity of the will, the Court
in Balanay .Jr. v. Martinez (64 SCRA 452) passed upon the validity of
its intrinsic provisions.

Invoking "practical considerations", we stated:

The basic issue is whether the probate court erred in

passing upon the intrinsic validity of the will, before ruling
on its allowance or formal validity, and in declaring it void.

We are of the opinion that in view of certain unusual

provisions of the will, which are of dubious legality, and
because of the motion to withdraw the petition for probate
(which the lower court assumed to have been filed with the
petitioner's authorization) 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
(Nuguid v. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare
with Sumilang vs. Ramagosa L-23135, December 26,
 1967, 21 SCRA 1369; Cacho v. Udan L-19996, April 30,
1965, 13 SCRA 693).

There appears to be no more dispute at this time over the extrinsic

validity of the Will. Both parties are agreed that the Will of Martin Jugo
was executed with all the formalities required by law and that the
testator had the mental capacity to execute his Will. The petitioner
states that she completely agrees with the respondent court when in
resolving the question of whether or not the probate court correctly
denied the probate of Martin Jugo's last Will and Testament, it ruled:

This being so, the will is declared validly drawn. (Page 4,

Decision, Annex A of Petition.)

On the other hand the respondents pray for the affirmance of the
Court of Appeals' decision in toto.

The only issue, therefore, is the jurisdiction of the respondent court to

declare the testamentary provision in favor of the petitioner as null and
void.

We sustain the respondent court's jurisdiction. As stated in Nuguid v.

Nuguid, (supra):

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 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. (Section 2, Rule 1, Rules of Court.
Case, et al. v. Jugo, et al., 77 Phil. 517, 522). After all,
there exists a justiciable controversy crying for solution.
We see no useful purpose that would be served if we remand the
nullified provision to the proper court in a separate action for that
purpose simply because, in the probate of a will, the court does not
ordinarily look into the intrinsic validity of its provisions.

Article 739 of the Civil Code provides:

The following donations shall be void:

(1) Those made between persons who were guilty of

adultery or concubinage at the time of the donation;

(2) Those made between persons found guilty of the same

criminal offense, in consideration thereof;

(3) Those made to a public officer or his wife, descendants

and ascendants, by reason of his office.

In the case referred to in No. 1, the action for declaration of

nullity may be brought by the spouse of the donor or
donee; and the guilt of the donor and donee may be proved
by preponderance of evidence in the same action.

Article 1028 of the Civil Code provides:

The prohibitions mentioned in Article 739, concerning

donations inter vivos shall apply to testamentary
provisions.

In Article III of the disputed Will, executed on August 15, 1968, or

almost six years before the testator's death on July 16, 1974, Martin
Jugo stated that respondent Rufina Gomez was his legal wife from
whom he had been estranged "for so many years." He also declared
that respondents Carmelita Jugo and Oscar Jugo were his legitimate
children. In Article IV, he stated that he had been living as man and
wife with the petitioner since 1952. Testator Jugo declared that the
petitioner was entitled to his love and affection. He stated that
Nepomuceno represented Jugo as her own husband but "in truth and
in fact, as well as in the eyes of the law, I could not bind her to me in
the holy bonds of matrimony because of my aforementioned previous
marriage.

There is no question from the records about the fact of a prior existing
marriage when Martin Jugo executed his Will. There is also no dispute
that the petitioner and Mr. Jugo lived together in an ostensible marital
relationship for 22 years until his death.

It is also a fact that on December 2, 1952, Martin Jugo and Sofia J.

Nepomuceno contracted a marriage before the Justice of the Peace of
Victoria, Tarlac. The man was then 51 years old while the woman was
48. Nepomuceno now contends that she acted in good faith for 22
years in the belief that she was legally married to the testator.

The records do not sustain a finding of innocence or good faith. As

argued by the private respondents:

First. The last will and testament itself expressly admits

indubitably on its face the meretricious relationship
between the testator and petitioner, the devisee.

Second. Petitioner herself initiated the presentation of

evidence on her alleged ignorance of the true civil status of
the testator, which led private respondents to present
contrary evidence.

In short, the parties themselves dueled on the intrinsic

validity of the legacy given in the will to petitioner by the
deceased testator at the start of the proceedings.

Whether or not petitioner knew that testator Martin Jugo,

the man he had lived with as man and wife, as already
married, was an important and specific issue brought by the
parties before the trial court, and passed upon by the Court
of Appeals.

Instead of limiting herself to proving the extrinsic validity of

the will, it was petitioner who opted to present evidence on
her alleged good faith in marrying the testator. (Testimony
of Petitioner, TSN of August 1, 1982, pp. 56-57 and pp. 62-
64).

Private respondents, naturally, presented evidence that

would refute the testimony of petitioner on the point.

Sebastian Jugo, younger brother of the deceased testator,

testified at length on the meretricious relationship of his
brother and petitioner. (TSN of August 18,1975).

Clearly, the good faith of petitioner was by option of the

parties made a decisive issue right at the inception of the
case.

Confronted by the situation, the trial court had to make a

ruling on the question.

When the court a quo held that the testator Martin Jugo

and petitioner 'were deemed guilty of adultery or
concubinage', it was a finding that petitioner was not the
innocent woman she pretended to be.

xxx xxx xxx

3. If a review of the evidence must be made nonetheless,

then private respondents respectfully offer the following
analysis:

FIRST: The secrecy of the marriage of petitioner with the

deceased testator in a town in Tarlac where neither she nor
the testator ever resided. If there was nothing to hide from,
why the concealment' ? Of course, it maybe argued that the
marriage of the deceased with private respondent Rufina
Gomez was likewise done in secrecy. But it should be
remembered that Rufina Gomez was already in the family
way at that time and it would seem that the parents of
Martin Jugo were not in favor of the marriage so much so
that an action in court was brought concerning the
marriage. (Testimony of Sebastian Jugo, TSN of August
18, 1975, pp. 29-30)

SECOND: Petitioner was a sweetheart of the deceased

testator when they were still both single. That would be in
1922 as Martin Jugo married respondent Rufina Gomez on
November 29, 1923 (Exh. 3). Petitioner married the testator
only on December 5, 1952. There was a space of about 30
years in between. During those 30 years, could it be
believed that she did not even wonder why Martin Jugo did
not marry her nor contact her anymore after November,
1923 - facts that should impel her to ask her groom before
she married him in secrecy, especially so when she was
already about 50 years old at the time of marriage.

THIRD: The fact that petitioner broke off from Martin Jugo
in 1923 is by itself conclusive demonstration that she new
that the man she had openly lived for 22 years as man and
wife was a married man with already two children.

FOURTH: Having admitted that she knew the children of

respondent Rufina Gomez, is it possible that she would not
have asked Martin Jugo whether or not they were his
illegitimate or legitimate children and by whom? That is un-
Filipino.

FIFTH: Having often gone to Pasig to the residence of the

parents of the deceased testator, is it possible that she
would not have known that the mother of private
respondent Oscar Jugo and Carmelita Jugo was
respondent Rufina Gomez, considering that the houses of
the parents of Martin Jugo (where he had lived for many
years) and that of respondent Rufina Gomez were just a
few meters away?

Such pretentions of petitioner Sofia Nepomuceno are

unbelievable. They are, to say the least, inherently
improbable, for they are against the experience in common
 life and the ordinary instincts and promptings of human
nature that a woman would not bother at all to ask the man
she was going to marry whether or not he was already
married to another, knowing that her groom had children. It
would be a story that would strain human credulity to the
limit if petitioner did not know that Martin Jugo was already
a married man in view of the irrefutable fact that it was
precisely his marriage to respondent Rufina Gomez that led
petitioner to break off with the deceased during their
younger years.

Moreover, the prohibition in Article 739 of the Civil Code is against the
making of a donation between persons who are living in adultery or
concubinage. It is the donation which becomes void. The giver cannot
give even assuming that the recipient may receive. The very wordings
of the Will invalidate the legacy because the testator admitted he was
disposing the properties to a person with whom he had been living in
concubinage. WHEREFORE, the petition is DISMISSED for lack of
merit. The decision of the Court of Appeals, now Intermediate
Appellate Court, is AFFIRMED. No costs.
G.R. No. L-39247 June 27, 1975

In the Matter of the Petition to Approve the Will of Leodegaria

Julian. FELIX BALANAY, JR., petitioner, 
vs.
HON. ANTONIO M. MARTINEZ, Judge of the Court of First
Instance of Davao, Branch VI; AVELINA B. ANTONIO and DELIA
B. LANABAN, respondents.

Roberto M. Sarenas for petitioner.

Jose B. Guyo for private respondents.

AQUINO, J.:

Felix Balanay, Jr. appealed by certiorari from the order of the Court of

First Instance of Davao dated February 28, 1974, declaring illegal and
void the will of his mother, Leodegaria Julian, converting the testate
proceeding into an intestate proceeding and ordering the issuance of
the corresponding notice to creditors (Special Case No. 1808). The
antecedents of the appeal are as follows:

Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on February

12, 1973 in Davao City at the age of sixty-seven. She was survived by
her husband, Felix Balanay, Sr., and by their six legitimate children
named Felix Balanay, Jr., Avelina B. Antonio, Beatriz B. Solamo,
Carolina B. Manguiob, Delia B. Lanaban and Emilia B. Pabaonon.

Felix J. Balanay, Jr. filed in the lower court a petition dated February
27, 1973 for the probate of his mother's notarial will dated September
5, 1970 which is written in English. In that will Leodegaria Julian
declared (a) that she was the owner of the "southern half of nine
conjugal lots (par. II); (b) that she was the absolute owner of two
parcels of land which she inherited from her father (par. III), and (c)
that it was her desire that her properties should not be divided among
her heirs during her husband's lifetime and that their legitimes should
be satisfied out of the fruits of her properties (Par. IV).

Then, in paragraph V of the will she stated that after her husband's
death (he was eighty-two years old in 1973) her paraphernal lands
and all the conjugal lands (which she described as "my properties")
should be divided and distributed in the manner set forth in that part of
her will. She devised and partitioned the conjugal lands as if they were
all owned by her. She disposed of in the will her husband's one half
share of the conjugal assets. *
Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the will on the grounds of lack of testamentary capacity, undue influence,
preterition of the husband and alleged improper partition of the conjugal estate. The oppositors claimed that Felix Balanay, Jr. should collate
certain properties which he had received from the testatrix.

Felix Balanay, Jr., in his reply to the opposition, attached thereto an

affidavit of Felix Balanay, Sr. dated April 18, 1973 wherein he
withdrew his opposition to the probate of the will and affirmed that he
was interested in its probate. On the same date Felix Balanay, Sr.
signed an instrument captioned "Conformation (sic) of Division and
Renunciation of Hereditary Rights" wherein he manifested that out of
respect for his wife's will he "waived and renounced' his hereditary
rights in her estate in favor of their six children. In that same
instrument he confirmed the agreement, which he and his wife had
perfected before her death, that their conjugal properties would be
partitioned in the manner indicated in her will.

Avelina B. Antonio, an oppositor, in her rejoinder contended that the

affidavit and "conformation" of Felix Balanay, Sr. were void. The lower
court in its order of June 18, 1973 "denied" the opposition and reset
for hearing the probate of the will. It gave effect to the affidavit and
conformity of Felix Balanay, Sr. In an order dated August 28, 1973 it
appointed its branch clerk of court as special administrator of the
decedent's estate.

Mrs. Antonio moved for the reconsideration of the lower court's order
of June 18, 1973 on the grounds (a) that the testatrix illegally claimed
that she was the owner of the southern half of the conjugal lots and (b)
that she could not partition the conjugal estate by allocating portions of
the nine lots to her children. Felix Balanay, Jr., through his counsel,
Hermenegildo Cabreros, opposed that motion. The lower court denied
it in its order of October 15, 1973.

In the meanwhile, another lawyer appeared in the case. David O.

Montaña, Sr., claiming to be the lawyer of petitioner Felix Balanay, Jr.
(his counsel of record was Atty. Cabreros), filed a motion dated
September 25, 1973 for "leave of court to withdraw probate of alleged
will of Leodegaria Julian and requesting authority to proceed by
intestate estate proceeding." In that motion Montaña claimed to be the
lawyer not only of the petitioner but also of Felix Balanay, Sr., Beatriz
B. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon.

Montaña in his motion assailed the provision of the will which

partitioned the conjugal assets or allegedly effected a compromise of
future legitimes. He prayed that the probate of the will be withdrawn
and that the proceeding be converted into an intestate proceeding. In
another motion of the same date he asked that the corresponding
notice to creditors be issued.

Avelina B. Antonio and Delia B. Lanaban, through Atty. Jose B. Guyo,

in their comments dated October 15, 1973 manifested their conformity
with the motion for the issuance of a notice to creditors. They prayed
that the will be declared void for being contrary to law and that an
intestacy be declared.

The lower court, acting on the motions of Atty. Montaña, assumed that
the issuance of a notice to creditors was in order since the parties had
agreed on that point. It adopted the view of Attys. Montaña and Guyo
that the will was void. So, in its order of February 28, 1974 it
dismissed the petition for the probate, converted the testate
proceeding into an intestate proceeding, ordered the issuance of a
notice to creditors and set the intestate proceeding for hearing on April
1 and 2, 1974. The lower court did not abrogate its prior orders of
June 18 and October 15, 1973. The notice to creditors was issued on
April 1, 1974 and published on May 2, 9 and 16 in the Davao Star in
spite of petitioner's motion of April 17, 1974 that its publication be held
in abeyance.
Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas, in a
verified motion dated April 15, 1974, asked for the reconsideration of
the lower court's order of February 28, 1974 on the ground that Atty.
Montaña had no authority to withdraw the petition for the allowance of
the will. Attached to the motion was a copy of a letter dated March 27,
1974 addressed to Atty. Montaña and signed by Felix Balanay, Jr.,
Beatriz V. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon,
wherein they terminated Montaña's services and informed him that his
withdrawal of the petition for the probate of the will was without their
consent and was contrary to their repeated reminder to him that their
mother's will was "very sacred" to them.

Avelina B. Antonio and Delia B. Lanaban opposed the motion for

reconsideration. The lower court denied the motion in its order of June
29, 1974. It clarified that it declared the will void on the basis of its own
independent assessment of its provisions and not because of Atty.
Montaña's arguments.

The basic issue is whether the probate court erred in passing upon the
intrinsic validity of the will, before ruling on its allowance or formal
validity, and in declaring it void.

We are of the opinion that in view of certain unusual provisions of the

will, which are of dubious legality, and because of the motion to
withdraw the petition for probate (which the lower court assumed to
have been filed with the petitioner's authorization), 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 (Nuguid vs. Nuguid, 64 O.G. 1527, 17 SCRA 449.
Compare with Sumilang vs. Ramagosa, L-23135, December 26, 1967,
21 SCRA 1369; Cacho vs. Udan, L-19996, April 30, 1965, 13 SCRA
693).1äwphï1.ñët

But the probate court erred in declaring, in its order of February 28,
1974 that the will was void and in converting the testate proceeding
into an intestate proceeding notwithstanding the fact that in its order of
June 18, 1973 , it gave effect to the surviving husband's conformity to
the will and to his renunciation of his hereditary rights which
presumably included his one-half share of the conjugal estate.

The rule is that "the invalidity of one of several dispositions contained

in a will does not result in the invalidity of the other dispositions,
unless it is to be presumed that the testator would not have made
such other dispositions if the first invalid disposition had not been
made" (Art. 792, Civil Code). "Where some of the provisions of a will
are valid and others invalid, the valid parts will be upheld if they can
be separated from the invalid without defeating the intention of the
testator or interfering with the general testamentary scheme, or doing
injustice to the beneficiaries" (95 C.J.S. 873).

The statement of the testatrix that she owned the "southern half of the
conjugal lands is contrary to law because, although she was a
coowner thereof, her share was inchoate and proindiviso (Art. 143,
Civil Code; Madrigal and Paterno vs. Rafferty and Concepcion, 38
Phil. 414). But That illegal declaration does not nullify the entire will. It
may be disregarded.

The provision of the will that the properties of the testatrix should not
be divided among her heirs during her husband's lifetime but should
be kept intact and that the legitimes should be paid in cash is contrary
to article 1080 of the Civil Code which 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.

A parent who, in the interest of his or her family, to keep

any agricultural, industrial, or manufacturing enterprise
intact, may avail himself of the right granted him in this
article, by ordering that the legitime of the other children to
whom the property is not assigned be paid in cash. (1056a)
The testatrix in her will made a partition of the entire conjugal estate
among her six children (her husband had renounced his hereditary
rights and his one-half conjugal share). She did not assign the whole
estate to one or more children as envisaged in article 1080. Hence,
she had no right to require that the legitimes be paid in cash. On the
other hand, her estate may remain undivided only for a period of
twenty years. So, the provision that the estate should not be divided
during her husband's lifetime would at most be effective only for
twenty years from the date of her death unless there are compelling
reasons for terminating the coownership (Art. 1083, Civil Code).

Felix Balanay, Sr. could validly renounce his hereditary rights and his
one-half share of the conjugal partnership (Arts. 179[1] and 1041, Civil
Code) but insofar as said renunciation partakes of a donation of his
hereditary rights and his one-half share in the conjugal estate (Art.
1060[1] Civil Code), it should be subject to the limitations prescribed in
articles 750 and 752 of the Civil Code. A portion of the estate should
be adjudicated to the widower for his support and maintenance. Or at
least his legitime should be respected.

Subject to the foregoing observations and the rules on collation, the

will is intrinsically valid and the partition therein may be given effect if it
does not prejudice the creditors and impair the legitimes. The
distribution and partition would become effective upon the death of
Felix Balanay, Sr. In the meantime, the net income should be
equitably divided among the children and the surviving spouse.

It should be stressed that by reason of the surviving husband's

conformity to his wife's will and his renunciation of his hereditary
rights, his one-half conjugal share became a part of his deceased
wife's estate. His conformity had the effect of validating the partition
made in paragraph V of the will without prejudice, of course, to the
rights of the creditors and the legitimes of the compulsory heirs.

Article 793 of the Civil Code provides that "property acquired after the
making of a will shall only pass thereby, as if the testator had it at the
time of making the will, should it expressly appear by the will that such
was his intention". Under article 930 of the Civil Code "the legacy or
devise of a thing belonging to another person is void, if the testator
erroneously believed that the thing pertained to him. But if the thing
bequeathed, though not belonging to the testator when he made the
will, afterwards becomes his, by whatever title, the disposition shall
take effect."

In the instant case there is no doubt that the testatrix and her husband
intended to partition the conjugal estate in the manner set forth in
paragraph V of her will. It is true that she could dispose of by will only
her half of the conjugal estate (Art. 170, Civil Code) but since the
husband, after the dissolution of the conjugal partnership, had
assented to her testamentary partition of the conjugal estate, such
partition has become valid, assuming that the will may be probated.

The instant case is different from the Nuguid case, supra, where the

testatrix instituted as heir her sister and preterited her parents. Her will
was intrinsically void because it preterited her compulsory heirs in the
direct line. Article 854 of the Civil Code 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." Since
the preterition of the parents annulled the institution of the sister of the
testatrix and there were no legacies and devises, total intestacy
resulted (.Art. 960[2], Civil Code).1äwphï1.ñët

In the instant case, the preterited heir was the surviving spouse. His
preterition did not produce intestacy. Moreover, he signified his
conformity to his wife's will and renounced his hereditary rights. .

It results that the lower court erred in not proceeding with the probate
of the will as contemplated in its uncancelled order of June 18, 1973.
Save in an extreme case where the will on its face is intrinsically void,
it is the probate court's duty to pass first upon the formal validity of the
will. Generally, the probate of the will is mandatory (Art. 838, Civil
Code; Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249; Fernandez
vs. Dimagiba, L-23638, October 12, 1967, 21 SCRA 428).
As aptly stated by Mr. Justice Barredo, "the very existence of a
purported testament is in itself prima facie proof that the supposed
testator has willed that his estate should be distributed in the manner
therein provided, and it is incumbent upon the state that, if legally
tenable, such desire be given effect independent of the attitude of the
parties affected thereby" (Resolution, Vda. de Precilla vs. Narciso, L-
27200, August 18, 1972, 46 SCRA 538, 565).

To give effect to the intention and wishes of the testatrix is the first and
principal law in the matter of testaments (Dizon-Rivera vs. Dizon, L-
24561, June 30, 1970, 33 SCRA 554, 561). Testacy is preferable to
intestacy. An interpretation that will render a testamentary disposition
operative takes precedence over a construction that will nullify a
provision of the will (Arts. 788 and 791, Civil Code).

Testacy is favored. Doubts are resolved in favor of testacy especially

where the will evinces an intention on the part of the testator to
dispose of practically his whole estate. So compelling is the principle
that intestacy should be avoided and that the wishes of the testator
should prevail that sometimes the language of the will can be varied
for the purpose of giving it effect (Austria vs. Reyes, L-23079,
February 27, 1970, 31 SCRA 754, 762).

As far as is legally possible, the expressed desire of the testator must

be followed and the dispositions of the properties in his will should be
upheld (Estorque vs. Estorque, L-19573, June 30, 1970, 33 SCRA
540, 546).

The law has a tender regard for the wishes of the testator as
expressed in his will because any disposition therein is better than that
which the law can make (Castro vs. Bustos, L-25913, February 28,
1969, 27 SCRA 327, 341).

Two other errors of the lower court may be noticed. It erred in issuing
a notice to creditors although no executor or regular administrator has
been appointed. The record reveals that it appointed a special
administrator. A notice to creditors is not in order if only a special
administrator has been appointed. Section 1, Rule 86 of the Rules of
Court, in providing that "immediately after granting letters of
testamentary or of administration, the court shall issue a notice
requiring all persons having money claims against the decedent to file
them in the office of the clerk of said court" clearly contemplates the
appointment of an executor or regular administrator and not that of a
special administrator.

It is the executor or regular administrator who is supposed to oppose

the claims against the estate and to pay such claims when duly
allowed (See. 10, Rule 86 and sec. 1, Rule 88, Rules of Court).

We also take this occasion to point out that the probate court's
appointment of its branch clerk of court as special administrator (p.
30, Rollo) is not a salutary practice because it might engender the
suspicion that the probate Judge and his clerk of court are in cahoots
in milking the decedent's estate. Should the branch clerk of court
commit any abuse or devastavit in the course of his administration, the
probate Judge might find it difficult to hold him to a strict
accountability. A court employee should devote his official time to his
official duties and should not have as a sideline the administration of a
decedent's estate.

WHEREFORE, the lower court's orders of February 28, and June 29,
1974 are set aside and its order of June 18, 1973, setting for hearing
the petition for probate, is affirmed. The lower court is directed to
conduct further proceedings in Special Case No. 1808 in consonance
with this opinion. Costs, against the private respondents.