Wills & Succession/ Atty Uribe

SUCCESSION  Art. 782. An heir is a person called to the succession either

by the provision of a will or by operation of law.
Legend:
T – Senator Tolentino comments Devisees and legatees are persons to whom gifts of real and
B – Professor Balane comments personal property are respectively given by virtue of a will.

I. GENERAL PROVISIONS  Art. 887. The following are compulsory heirs:

A. Definition and Concepts (1) Legitimate children and descendants, with respect to their
legitimate parents and ascendants;
 Art. 774. Succession is a mode of acquisition by virtue of
which the property, rights and obligations to the extent of the (2)
(2) In defau
default
lt of the
the fore
forego
goin
ing,
g, legi
legiti
timat
mate
e pare
parents
nts and
and
value of the inheritance, of a person are transmitted through ascend
ascendant
ants,
s, with
with respec
respectt to their
their legiti
legitimate
mate childr
children
en and
his death to another or others either by his will or by descendants;
operation of law. (n) (3) The widow or widower;
 Art. 712. Ownership is acquired by occupation and by (4) Acknowledged natural children, and natural children by
intellectual creation. legal fiction;
Ownership and other real rights over property are acquired (5) Other illegitimate children referred to in Article 287.
and transmitted
transmitted by law, by donation,
donation, by estate and intestate
succes
successio
sion,
n, and in conseq
consequen
uence
ce of certai
certain
n contra
contracts,
cts, by Compulsory heirs mentioned in Nos. 3, 4, and 5 are not
tradition. excluded by those in Nos. 1 and 2; neither do they exclude
one another.
They may also be acquired by means of prescription.
In all cases of illegitimate children, their filiation must be duly
 Art. 1311. Contracts take effect only between the parties, proved.
their assigns and heirs, except in case where the rights and
obligations arising from the contract are not transmissible by The father or mother
mother of illegi
illegitim
timate
ate childr
children
en of the three
their nature, or by stipulation or by provision of law. The heir classes mentioned, shall inherit from them in the manner and
is not liable beyond the value of the property he received to the extent established by this Code. (807a)
from the decedent.
The Collateral Relatives
If a contract should contain some stipulation in favor of a third
 Art. 1003. If there are no descendants, ascendants,
pers
personon,, he maymay dema
demand
nd itsits fulf
fulfil
illm
lmen
entt prov
provid
ided
ed he
illegi
illegitima
timate
te childr
children,
en, or a surviv
surviving
ing spouse
spouse,, the collat
collatera
erall
commun
communica icated
ted his accept
acceptanc
ance
e to the obligo
obligorr before
before its
relatives shall succeed to the entire estate of the deceased in
revocation. A mere incidental benefit or interest of a person is
accordance with the following articles. (946a)
not sufficient.
sufficient. The contracting
contracting parties must have clearly and
deliberately conferred a favor upon a third person.  Art. 1004. Should the only survivors be brothers and sisters
of the full blood, they shall inherit in equal shares. (947)
Fund
Fundam
amen
enta
tall Chan
Change
ges
s in the
the NCC
NCC in line
line with
with the
the
purpose of Socialization  Art. 1005. Should brothers and sisters survive together with
1. The surviving spouse is given a better status in terms of neph
nephewewss and
and niec
nieces
es,, who
who are
are the
the chil
childr
dren
en of thethe
descendant's brothers and sisters of the full blood, the former
succession to the property of the decease husband, her right
shall inherit per capita, and the latter per stirpes. In relation to
to the property was improved from a mere usufruct to full
 Article 975 which states
s tates  Art. 975. When children of one
ownership.
or more brothers or sisters of the deceased survive,
2. The illegitimate children are now given successional rights they shall inherit from the latter by representation,
unli
unlike
ke the
the old
old civi
civill code
code whic
which
h does
does not.
not. Furth
Further
er,, the if they survive with their uncles or aunts. But if they
illegitimate child’s mother or father not related by blood has a alone survive, they shall inherit in equal portions.
chan
chance ce of inhe
inheri
riti
ting
ng,, thus
thus,, furth
further
erin
ing
g the
the purp
purpos
osee of
socialization preventing a the property from staying within the • Division per capita entails a division of
same family. the estate
estate into
into as many
many equal
equal parts
parts as
there are persons to succeed. If there are
3. The Legitime of the compulsory heirs is increased from 1/3 three
three childr
children,
en, for insta
instance
nce,, each
each will
will
to ½ rece
receiv
ive,
e, per
per capi
capita
ta,, one
one thir
thirdd of the
the
4. The free portion of the estate of the deceased is likewise estate. Division per capita is the general
increased. rule.

B. Subjects of Succession • Division per stirpes is made when a sole

1. Who are the subjects?
descen
descendan
dantt or a group
group of descen
descendan
dants
ts
represent a person in intestate
The Decedent succes
successio
sion.
n. The sole
sole repres
represent
entati
ative
ve or
group of representatives are counted as
 Art. 775. In this Title, "decedent" is the general term applied one
one head
head.. Thus
Thus,, shou
should
ld a fath
father
er be
to the
the pers
person
on whos
whose e prop
proper
erty
ty is tran
transm
smit
itted
ted thro
througughh survived by a son and four children of
succession, whether or not he left a will. If he left a will, he is another son who predeceased him, then,
also called the testator. the estate is divided per stirpes. The first
The Heir, devisee, Legatee half is given to the surviving son and the
other
other half shall
shall be divided
divided among
among the
four grandchildren.

- jann - 1
Wills & Succession/ Atty Uribe
 Art. 1006. Should brother and sisters of the full blood survive court ( the city or municipality where the land is
togeth
together
er with
with brothe
brothers
rs and sisters
sisters of the half blood,
blood, the situated ). The State, therefore does not ipso
former shall be entitled to a share double that of the latter. facto
facto beco
become
me thethe owne
ownerr of the
the esta
estate
te left
left
(949) without heir. Its right to claim must be based on
a court’s ruling allowing it to have the estate,
 Art. 1007. In case brothers and sisters of the half blood, after compliance with the procedure laid down
some on the father's and some on the mother's side, are the by the Rules of Court. (Rule 91)
only
only surviv
survivors
ors,, all shall
shall inheri
inheritt in equal
equal shares
shares withou
withoutt
distinction as to the origin of the property. (950)  Art. 1012. In order that the State may take possession of the
property
property mentioned
mentioned in the preceding article, the pertinent
pertinent
 Art. 1008. Children of brothers and sisters of the half blood provisions of the Rules of Court must be observed. (958a)
shall succeed per capita or per stirpes, in accordance with
the rules laid down for the brothers and sisters of the full  Art. 1013. After the payment of debts and charges, the
blood. (915) personal property shall be assigned to the municipality or city
where the deceased last resided in the Philippines, and the
 Art. 1009. Should there be neither brothers nor sisters nor real
real estate
estate to the munici
municipal
paliti
ities
es or cities
cities,, respec
respectiv
tively
ely,, in
children of brothers or sisters, the other collateral relatives which the same is situated.
shall succeed to the estate.
If the deceased never resided in the Philippines, the whole
The
The latte
latterr shal
shalll succe
succeed
ed with
withou
outt dist
distin
incti
ction
on of line
lines
s or
estate shall be assigned to the respective municipalities or
prefere
preference
nce among
among them
them by reason
reason of relati
relations
onship
hip by the cities where the same is located.
whole blood. (954a)
Such estate shall be for the benefit of public schools, and
 Art. 1010. The right to inherit ab intestato shall not extend publ
public
ic char
charititab
able
le inst
instit
itut
utio
ions
ns and
and centcenter
ers,
s, in suchsuch
beyond the fifth degree of relationship in the collateral line. municipalities or cities. The court shall distribute the estate as
(955a) the respective needs of each beneficiary may warrant.
The court, at the instance of an interested party, or on its own
• when there are no brothers whether the full of motion, may order the establishment of a permanent trust, so
half blood, the other collateral relatives succeed that only the income from the property shall be used. (956a)
which whom, however, are limited within the 5th  Art. 1014. If a person legally entitled to the estate of the
degree
degree of relati
relations
onship
hip.. Becaus
Becausee beyond
beyond this
this deceased appears and files a claim thereto with the court
degree, it is safe to say that, there is hardly any within five years from the date the property was delivered to
affe
affecti
ction
on to merit
merit succ
succesessi
sion
on.. Henc
Hence,
e, for
for the State, such person shall be entitled to the possession of
succes
successio
sion
n purpos
purposeses these
these person
persons
s are no the
the same
same,, or if sold
sold the
the muni
munici
cipa
pali
lity
ty or city
city shal
shalll be
longer considered relatives. accountable
accountable to him for such part of the proceeds
proceeds as may not
The following rules shall apply: 1. the nearest have been lawfully spent.
•

relative exclude the farther. 2. collateral of the 2. Relationships (Intestate or Legal Heirs)
same degree inherit equal parts, there being no
right of representation, 3. They succeed without Art. 963.
963. Proximi
Proximity
ty of relati
relations
onship
hip is determ
determine
ined
d by the
distinction or lines or preference among them number of generations. Each generation forms a degree.
on account of the whole blood relationship  Art. 964. A series of degrees forms a line, which may be
either direct or collateral.

The State  A direct line is that constituted by the series of degrees

among ascendants and descendants.
Art.
Art. 1011
1011.. In defa
defaulultt of pers
person
ons
s enti
entitl
tled
ed to succ
succee
eed
d in
accordance with the provisions of the preceding Sections, the  A collateral line is that constituted by the series of degrees
State shall inherit the whole estate. (956a) among persons who are not ascendants and descendants,
but who come from a common ancestor. (916a)
• When
When a pers
person
on dies
dies inte
intesta
state
te,, leav
leavin
ing
g no  Art. 965. The direct line is either descending or ascending.
compul
compulsor
sory
y heir,
heir, nor any other
other relati
relatives
ves to
succeed him by law, the natural result would be The former unites the head of the family with those who
the complete abandonment of the property. descend from him.

• The estate becomes subject to appropriation by The

The latt
latter
er bind
binds
s a pers
person
on with
with thos
those
e from
from whom
whom he
anyone.
anyone. This condition would result in conflicts descends. (917)
detrimental to the public and economic order.  Art. 966. In the line, as many degrees are counted as there
are generations or persons, excluding the progenitor.
• In view of this, the law awards the property to
the
the State
State,, in repr
represe
esenta
ntati
tion
on of the
the peop
people
le.. In the direct line, ascent is made to the common ancestor.
Rati
Ratio:
o: a) Dicta
Dictate
ted
d by publ
publicic poli
policy
cy and,
and, b) Thus, the child is one degree removed from the parent, two
priv
private
ate prop
proper
erty
ty is enjo
enjoye
yed d only
only unde
underr the from the grandfather, and three from the great-grandparent.
protection of the State, and when no longer
used, it should revert back to the State. In the collateral line, ascent is made to the common ancestor
and then descent
descent is made
made to the person
person with whom the
• The reversion of the res nullius property can computation is to be made. Thus, a person is two degrees
removed from his brother, three from his uncle, who is the
only be done through an Escheat proceedings
instituted by the Solicitor General to the proper

- jann - 2
Wills & Succession/ Atty Uribe
brother of his father, four from his first cousin, and so forth.
(918a)
 Art. 967. Full blood relationship is that existing between
persons who have the same father and the same mother.
Half blood relationship is that existing between persons who
have the same father, but not the same mother, or the same
mother, but not the same father. (920a)
However, intestate and testamentary successions, both
with respect to the order of succession and to the
amount of successional rights and to the intrinsic validity
of testamentary provisions, shall be regulated by the
national law of the person whose succession is under
consideration, whatever may be the nature of the
property and regardless of the country wherein said
property may be found. (10a)

 Art. 968. If there are several relatives of the same degree,

and one or some of them are unwilling or incapacitated to Cayetano vs. Leonides 129 SCRA 522
succeed, his portion shall accrue to the others of the same On January 31, 1977, Adoracion C. Campos died, leaving
degree, save the right of representation when it should take her father, petitioner Hermogenes Campos and her sisters,
place. (922) private respondent Nenita C. Paguia, Remedios C. Lopez
and
and Mari
Mariet
etaa C. Medi
Medina
na as thethe surv
surviiving
ving heir
heirs.
s. As
• In such cases as above, the shares would have
Hermog
Hermogene
eness Campos
Campos was the only only compul
compulsorsory
y heir,
heir, he
perta
pertain
ined
ed to thos
those
e who
who repu
repudidiat
ated
ed or are are executed an Affidavit of Adjudication under Rule 74, Section I
incapa
incapacit
citate
ated
d do not pass
pass to relati
relatives
ves of the of the Rules of Court whereby he adjudicated unto himself
next degree, but are retained by other relatives the ownership of the entire estate of the deceased Adoracion
of the
the same
same degr
degree
ee thro
throug
ughh the
the righ
rightt of Campos.
accr
accret
etio
ion,
n, with
with the exce
excepti
ption
on of thethe case
casess
where the right of representation obtains. The Eleven
Eleven months after, on NovembNovember
er 25, 1977, Nenita
Nenita C.
right to represent a living person obtains only in Paguia
Paguia filed
filed a petiti
petition
on for the reprob
reprobate
ate of a will
will of the
cases of disinheritance and incapacity. deceased, Adoracion Campos, which was allegedly executed
in the United States and for her appointment as administratrix
of the estate of the deceased testatrix.
 Art. 969. If the inheritance should be repudiated by the In her petiti
petition,
on, Nenita alleged
alleged that
that the testatrix
testatrix was an
neares
nearestt relati
relative,
ve, should
should there
there be one only,
only, or by all the  American citizen at the time of her death and was a
nearest relatives called by law to succeed, should there be perman
permanentent reside
residentnt of 4633
4633 Ditman
Ditman Street,
Street, Philad
Philadelp
elphia
hia,,
several, those of the following degree shall inherit in their Pennsy
Pennsylva
lvania
nia,, U.S.A.;
U.S.A.; that the testatri
testatrix
x died
died in Manila
Manila on
own
own righ
rightt and
and cann
cannot
ot repr
repres
esen
entt the
the perso
personn or pers
person
ons
s January 31, 1977 while temporarily residing with her sister at
repudiating the inheritance. 2167 Leveriza, Malate, Manila; that during her lifetime, the
* The article only pertains to repudiation. What then testatrix made her last will and testament on July 10, 1975,
would be the effect of incapacity of the only nearest relative? according to the laws of Pennsylvania, U.S.A., nominating
The right of representation may or may not obtain. Should Wilfredo Barzaga of New Jersey as executor; that after the
the incapacitated
incapacitated heir be the child of the decease,
decease, and he in testatrix' death, her last will and testament was presented,
turn has children, the latter may represent the incapacitated probated, allowed, and registered with the Registry of Wills at
heir. the
the Coun
Countyty of Phil Philad
adel
elph
phia
ia,, U.S.
U.S.A.
A.,, that
that Clem
Clemen entt L.
McLaughlin, the administrator who was appointed after Dr.
Barz
Barzag
agaa had
had decl
declin
ined
ed and
and waiv
waived
ed his
his appo
appoin
intme
tment
nt as
3. Capacity to Succeed exec
execut
utor
or in favofavorr of the
the form
former
er,, is also
also a resi
reside
dent
nt of
Philadelphia, U.S.A., and that therefore, there is an urgent
The general rule is any person may succeed by law need for the appointment of an administratrix to administer
or by will unless excluded by law. and eventually
eventually distribute
distribute the properties
properties of the estate located
in the Philippines.
Requisites of capacity to succeed: a) that there be
genera
generall civil
civil capaci
capacity
ty of the person
person,, whether
whether natural
natural or Meanwhile, on June 6, 1982, petitioner Hermogenes Campos
artificial, according to law; and b) that here be no incapacity died and left a will, which, incidentally has been questioned
to succeed under express provision of law. by the respondent, his children and forced heirs as, on its
face patently null and void, and a fabrication, appointing Polly
a. Dete
Deterrminat
inatio
ion
n
Cayeta
Cayetanono as the executrix
executrix of his last will
will and testament.
testament.
 Art. 1034. In order to judge the capacity of the heir, Cayetano, therefore, filed a motion to substitute herself as
devisee or legatee, his qualification at the time of the petitioner
petitioner in the instant case which was granted
granted by the court
death of the decedent shall be the criterion. on September 13, 1982.
In cases falling under Nos. 2, 3, or 5 of Article 1032, it ISSUE: Whether or not a compulsory heir may be validly
shal
shalll be nece
necessa
ssary
ry to wait
wait unti
untill fina
finall judg
judgme
ment
nt is excluded by a will executed by a foreign testator?
rend
renderered
ed,, and
and in the case fall
fallin
ing
g unde
underr No.
No. 4, the
the
expiration of the month allowed for the report. HELD: YES
If the institution, devise or legacy should be conditional, RATIO:
RATIO: Althou
Although
gh on its face, the will appear
appeareded to have
have
the time of the compliance with the condition shall also preter
preterite
ited
d the petiti
petitione
onerr and thus,
thus, the respon
responden
dentt judge
judge
be considered. shou
should
ld have
have deni
denied
ed its
its repr
reprob
obate
ate outri
outrigh
ght,
t, the
the priv
privat
ate
e
respondents
respondents have sufficiently
sufficiently established
established that Adoracion
Adoracion
 Art. 1039. Capacity to succeed is governed by the law of was, at the time of her death, an American citizen and a
the nation of the decedent permanent
permanent resident
resident of Philadelphi
Philadelphia,
a, Pennsylvani
Pennsylvania,
a, U.S.A.
 Art. 16. Real property as well as personal property is Therefore, under Article 16 par. (2) and 1039 of the Civil
subject to the law of the country where it is stipulated. Code which respectively provide:

- jann - 3
Wills & Succession/ Atty Uribe
 Art. 16 par. (2)."However, intestate and
testamentary successions, both with respect to the
order of succession and to the amount of
successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the
national law of the person whose succession is
under consideration, whatever may be the nature of
the property and regardless of the country wherein
said property may be found."
 Art. 1039."Capacity to succeed is governed by the law of the
nation of the decedent."
the law which governs Adoracion Campo's will is the law of
Pennsylvania, U.S.A., which is the national law of the
decedent. Although the parties admit that the Pennsylvania
law does not provide for legitimes and that all the estate may
be given away by the testatrix to a complete stranger, the
petitioner argues that such law should not apply because it
would be contrary to the sound and established public policy
and would run counter to the specific provisions of Philippine
Law.
It is a settled rule that as regards the intrinsic validity of the
provisions of the will, as provided for by Article 16 (2) and
1039 of the Civil Code, the national law of the decedent must
apply. This was squarely applied in the case of Bellis v. Bellis
(20 SCRA 358) wherein we ruled:"It is therefore evident that
whatever public policy or good customs may be involved in
our system of legitimes, Congress has not intended to extend
the same to the succession of foreign nationals. For it has
specifically chosen to leave, inter alia, the amount of
successional rights, to the decedent's national law. Specific
provisions must prevail over general ones.
 b. Who may succeed?
 Art. 1024. Persons not incapacitated by law may succeed by
will or  ab intestato.
The provisions relating to incapacity by will are equally
applicable to intestate succession. (744, 914)
• the second paragraph above merely enunciates
a general rule because Article 1027 and 1028
clearly are exceptions which do not apply to
intestate succession but only that of
testamentary dispositions.
• Kinds of Incapacity: a) absolute or per se and
b) relative or per accidens
 Art. 1025. In order to be capacitated to inherit, the heir,
devisee or legatee must be living at the moment the
succession opens, except in case of representation, when it
is proper.
 A child already conceived at the time of the death of the
decedent is capable of succeeding provided it be born later
under the conditions prescribed in article 41. (n)
* Those not existing at the time of death is
incapacitated to succeed except on conditional wills where
succession only opens upon the happening of the condition.
 Art. 1026. A testamentary disposition may be made to the
State, provinces, municipal corporations, private
- jann -
corporations, organizations, or associations for religious,
scientific, cultural, educational, or charitable purposes.
 All other corporations or entities may succeed under a will,
unless there is a provision to the contrary in their charter or
the laws of their creation, and always subject to the same.
(746a)
 Art. 1029. Should the testator dispose of the whole or part of
his property for prayers and pious works for the benefit of his
soul, in general terms and without specifying its application,
the executor, with the court's approval shall deliver one-half
thereof or its proceeds to the church or denomination to
which the testator may belong, to be used for such prayers
and pious works, and the other half to the State, for the
purposes mentioned in Article 1013. (747a)
 Art. 1030. Testamentary provisions in favor of the poor in
general, without designation of particular persons or of any
community, shall be deemed limited to the poor living in the
domicile of the testator at the time of his death, unless it
should clearly appear that his intention was otherwise.
The designation of the persons who are to be considered as
poor and the distribution of the property shall be made by the
person appointed by the testator for the purpose; in default of
such person, by the executor, and should there be no
executor, by the justice of the peace, the mayor, and the
municipal treasurer, who shall decide by a majority of votes
all questions that may arise. In all these cases, the approval
of the Court of First Instance shall be necessary.
The preceding paragraph shall apply when the testator
has disposed of his property in favor of the poor of a
definite locality.
Parish Priest of Victoria vs. Rigor 
This case is about the efficaciousness or enforceability of a
devise of ricelands located at Guimba, Nueva Ecija, with a
total area of around forty-four hectares. That devise was
made in the will of the late Father Pascual Rigor, a native of
Victoria, Tarlac, in favor of his nearest male relative who
would study for the priesthood.
The record discloses that Father Rigor, the parish priest of
Pulilan, Bulacan, died on August 9, 1935, leaving a will
executed on October 29, 1933 which was probated by the
Court of First Instance of Tarlac in its order of December 5,
1935. Named as devisees in the will were the testator's
nearest relatives, namely, his three sisters: Florencia Rigor-
Escobar, Belina Rigor-Manaloto and Nestora Rigor-
Quiambao. The testator gave a devise to his cousin,
Fortunato Gamalinda.
 About thirteen years after the approval of the project of
partition, or on February 19, 1954, the parish priest of
Victoria filed in the pending testate proceeding a petition
praying for the appointment of a new administrator
(succeeding the deceased administratrix, Florencia Rigor),
who should deliver to the church the said ricelands, and
further praying that the possessors thereof be ordered to
render an accounting of the fruits. The probate court granted
the petition. A new administrator was appointed. On January
31, 1957 the parish priest filed another petition for the
delivery of the ricelands to the church as trustee.
4
Wills & Succession/ Atty Uribe
The intestate heirs of Father Rigor countered with a petition
dated March 25, 1957 praying that the bequest be declared
inoperative and that they be adjudged as the persons entitled
to the said ricelands since, as admitted by the parish priest of
Victoria, "no nearest male relative of" the testator "has
ever studied for the priesthood" (pp. 25 and 35, Record on
 Appeal). That petition was opposed by the parish priest of
Victoria.
Judge De Aquino granted the second motion for
reconsideration in his order of December 10, 1957 on the
ground that the testator had a grandnephew named Edgardo
G. Cunanan (the grandson of his first cousin) who was a
seminarian in the San Jose Seminary of the Jesuit Fathers in
Quezon City. The administrator was directed to deliver the
ricelands to the parish priest of Victoria as trustee.
The legal heirs appealed to the Court of Appeals. It reversed
that order. It held that Father Rigor had created a
testamentary trust for his nearest male relative who would
take the holy orders but that such trust could exist only for
twenty years because to enforce it beyond that period would
violate "the rule against perpetuities". It ruled that since no
legatee claimed the ricelands within twenty years after the
testator's death, the same should pass to his legal heirs,
citing articles 888 and 912(2) of the old Civil Code and article
870 of the new Civil Code.
The will of the testator is the first and principal law in the
matter of testaments. When his intention is clearly and
precisely expressed, any interpretation must be in accord
with the plain and literal meaning of his words, except when it
may certainly appear that his intention was different from that
literally expressed (In re Estate of Calderon, 26 Phil. 333
"The intent of the testator is the cardinal rule in the
construction of wills." It is "the life and soul of a will". It is
"the first greatest rule, the sovereign guide, the polestar, in
giving effect to a will"
From the foregoing testamentary provisions, it may be
deduced that the testator intended to devise the
ricelands to his nearest male relative who would become
a priest, who was forbidden to sell the ricelands, who would
lose the devise if he discontinued his studies for the
priesthood, or having been ordained a priest, he was
excommunicated, and who would be obligated to say
annually twenty masses with prayers for the repose of the
souls of the testator and his parents.
On the other hand, it is clear that the parish priest of Victoria
would administer   the ricelands only in two situations: one,
during the interval of time that no nearest male relative of the
testator was studying for the priesthood and two, in case the
testator's nephew became a priest and he was
excommunicated.
What is not clear is the duration of "el intervalo de tiempo que
no haya legatario acondicionado", or how long after the
testator's death would it be determined  that he had a nephew
who would pursue an ecclesiastical vocation. It is that patent
ambiguity that has brought about the controversy between
the parish priest of Victoria and the testator's legal heirs.
Interwoven with that equivocal provision is the time when the
nearest male relative who would study for the priesthood
should be determined. Did the testator contemplate only his
nearest male relative at the time of his death? Or did he have
in mind any of his nearest male relatives at anytime after his
death?
- jann -
We hold that the said bequest refers to the testator's nearest
male relative living at the time of his death and not to any
indefinite time thereafter. "In order to be capacitated to
inherit, the heir, devisee or legatee must be living at the
moment the succession opens, except in case of
representation, when it is proper " (Art. 1025, Civil Code).
The said testamentary provisions should be sensibly or
reasonably construed. To construe them as referring to the
testator's nearest male relative at anytime after his death
would render the provisions difficult to apply   and create
uncertainty as to the disposition of his estate. That could not
have been his intention.
In 1935, when the testator died, his nearest legal heirs were
his three sisters or second-degree relatives, Mrs. Escobar,
Mrs. Manaloto and Mrs. Quiambao. Obviously, when the
testator specified his nearest male relative, he must have had
in mind his nephew or a son of his sister, who would be his
third-degree relative, or possibly a grandnephew. But since
he could not prognosticate the exact date of his death or
state with certitude what category of nearest male relative
would be living at the time of his death, he could not specify
that his nearest male relative would be his nephew or
grandnephews (the sons of his nephew or niece) and so he
had to use the term "nearest male relative".
Parenthetically, it should be stated at this juncture that
Edgardo ceased to be a seminarian in 1961. For that reason,
the legal heirs apprised the Court of Appeals that the probate
court's order adjudicating the ricelands to the parish priest of
Victoria had no more leg to stand on (p. 84, Appellant's brief).
Had the testator intended that the "cualquier pariente mio
varon mas cercano que estudie la carrera eclesiastica"
would include indefinitely anyone of his nearest male
relatives born after his death, he could have so specified in
his will. He must have known that such a broad provision
would suspend for an unlimited period of time the
efficaciousness of his bequest.
Following that interpretation of the will, the inquiry would be
whether at the time Father Rigor died in 1935 he had a
nephew who was studying for the priesthood or who had
manifested his desire to follow the ecclesiastical career. That
query is categorically answered in paragraph 4 of appellant
priest's petitions of February 19, 1954 and January 31, 1957.
He unequivocally alleged therein that "no nearest male
relative of the late (Father) Pascual Rigor has ever studied
for the priesthood" (pp. 25 and 35, Record on Appeal).
Inasmuch as the testator was not survived by any nephew
who became a priest, the unavoidable conclusion is that the
bequest in question was ineffectual or inoperative. Therefore,
the administration of the ricelands by the parish priest of
Victoria, as envisaged in the will, was likewise inoperative.
The Court of Appeals correctly ruled that this case is covered
by article 888 of the old Civil Code, now article 956, which
provides that if "the bequest for any reason should be
inoperative, it shall be merged into the estate, except in
cases of substitution and those in which the right of accretion
exists" ("el legado . . . por qualquier causa, no tenga efecto,
se refundir en la masa de la herencia, fuera de los casos de
sustitucion y derecho de acrecer").
This case is also covered by article 912(2) of the old Civil
Code, now article 960(2), which provides that legal
succession takes place when the will "does not dispose of all
that belongs to the testator." There being no substitution nor
5
Wills & Succession/ Atty Uribe
accretion as to the said ricelands, the same should be
distributed among the testator's legal heirs. The effect is as if
the testator had made no disposition as to the said ricelands.
The Civil Code recognizes that a person may die partly
testate and partly intestate, or that there may be mixed
succession. The old rule as to the indivisibility of the
testator's will is no longer valid. Thus, if a conditional legacy
does not take effect, there will be intestate succession as to
the property covered by the said legacy (Macrohon Ong Ham
vs. Saavedra, 51 Phil. 267).
c. Who are incapable of succeeding?
 Art. 1027. The following are incapable of succeeding:
(1) The priest who heard the confession of the testator
during his last illness, or the minister of the gospel who
extended spiritual aid to him during the same period;
(2) The relatives of such priest or minister of the gospel
within the fourth degree , the church, order, chapter,
community, organization, or institution to which such
priest or minister may belong;
(3) A guardian with respect to testamentary dispositions
given by a ward in his favor before the final accounts of
the guardianship have been approved, even if the
testator should die after the approval thereof;
nevertheless, any provision made by the ward in favor of
the guardian when the latter is his ascendant,
descendant, brother, sister, or spouse, shall be valid;
(4) Any attesting witness to the execution of a will, the
spouse, parents, or children, or any one claiming under
such witness, spouse, parents, or children; in relation to
 Art. 823. If a person attests the execution of a
 will, to whom or to whose spouse, or parent, or
child, a devise or legacy is given by such will,
such devise or legacy shall, so far only as
concerns such person, or spouse, or parent, or
child of such person, or any one claiming under
such person or spouse, or parent, or child, be
 void, unless there are three other competent
 witnesses to such will. However, such person so
attesting shall be admitted as a witness as if such
devise or legacy had not been made or given. (n)
(5) Any physician, surgeon, nurse, health officer or
druggist who took care of the testator during his last
illness;
(6) Individuals, associations and corporations not
permitted by law to inherit. (745, 752, 753, 754a)
 Art. 1028. The prohibitions mentioned in article 739,
concerning donations inter vivos shall apply to
testamentary provisions.
 Art. 1031. A testamentary provision in favor of a
disqualified person, even though made under the guise
of an onerous contract, or made through an
intermediary, shall be void. (755)
 Art. 1032. The following are incapable of succeeding by
reason of unworthiness:
(1) Parents  who have abandoned their children or
induced their daughters to lead a corrupt or immoral life,
or attempted against their virtue;
- jann -
(2) Any person who has been convicted of an attempt
against the life of the testator, his or her spouse,
descendants, or ascendants;
(3) Any person who 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;
(4) Any heir of full age who, having knowledge of the
violent death of the testator, should fail to report it to an
officer of the law within a month, unless the authorities
have already taken action; this prohibition shall not apply
to cases wherein, according to law, there is no obligation
to make an accusation;
(5) Any person convicted of adultery or concubinage with
the spouse of the testator;
(6) Any person who by fraud, violence, intimidation, or
undue influence should cause the testator to make a will
or to change one already made;
(7) Any person who by the same means prevents
another from making a will, or from revoking one already
made, or who supplants, conceals, or alters the latter's
will;
(8) Any person who falsifies or forges a supposed will
of the decedent. (756, 673, 674a)
 Art. 1033. The cause of unworthiness shall be without
effect if the testator had knowledge thereof at the time
he made the will, or if, having known of them
subsequently, he should condone them in writing. (757a)
d. Effect of alienations by the excluded heir 
 Art. 1036. Alienations of hereditary property, and acts of
administration performed by the excluded heir, before
the judicial order of exclusion, are valid as to the third
persons who acted in good faith; but the co-heirs shall
have a right to recover damages from the disqualified
heir.
e. Rights of the excluded Heir 
 Art. 1035. If the person excluded from the inheritance by
reason of incapacity should be a child or descendant of
the decedent and should have children or descendants,
the latter shall acquire his right to the legitime.
The person so excluded shall not enjoy the usufruct and
administration of the property thus inherited by his
children
 Art. 1037. The unworthy heir who is excluded from t he
succession has a right to demand indemnity or any
expenses incurred in the preservation of the hereditary
property, and to enforce such credits as he may have
against the estate.
 Art. 1014. If a person legally entitled t o the estate of the
deceased appears and files a claim thereto with the
court within five years from the date the property was
delivered to the State, such person shall be entitled to
the possession of the same, or if sold the municipality or
city shall be accountable to him for such part of the
proceeds as may not have been lawfully spent.
f. Liabilities of the excluded heir 
 Art. 1038. Any person incapable of succession, who,
disregarding the prohibition stated in the preceding
6
Wills & Succession/ Atty Uribe
the inheritance in his capacity as a testamentary heir, he
is understood to have repudiated it in both capacities.
Should he repudiate it as an intestate heir, without
knowledge of his being a testamentary heir, he may still
accept it in the latter capacity. (1009)
T: The repudiation of the express will of the testator includes
that of the presumed will, but the repudiation of the latter still
leaves the express will open to respect.
Ratio: An heir by will who repudiates the same, manifests his
dislike to become an heir in any concept. By his act reveals
the fact that he does not deserve to become his successor
even by intestacy.
OTOH, when an heir repudiates as legal heir may later
accept by will on the reason that a person may not desire to
succeed by intestacy but is willing to succeed by
testamentary capacity in order to follow the wishes of the
dead.
Art. 1056. The acceptance or repudiation of an
inheritance, once made, is irrevocable, and cannot be
impugned, except when it was made through any of the
causes that vitiate consent, or when an unknown will
appears. (997)
Other causes or revocation:
1. one who accepts or repudiates who is not entitled to
the inheritance has no legal effect.
2. when institution depends upon the fulfillment of a
suspensive condition which is not realized
3. birth of a posthumous child not born or is born dead
Art. 1057. Within thirty days after the court has issued an
order for the distribution of the estate in accordance with
the Rules of Court, the heirs, devisees and legatees shall
signify to the court having jurisdiction whether they
accept or repudiate the inheritance.
If they do not do so within that time, they are deemed to
have accepted the inheritance. (n)
CASES:
5. Uson vs. Del Rosario
Maria Uson was the lawful wife of Faustino Nebreda who
upon his death in 1945 left the lands involved in this litigation.
Faustino Nebreda left no other heir except his widow Maria
Uson. However, plaintiff claims that when Faustino Nebreda
died in 1945, his common- law wife Maria del Rosario took
possession illegally of said lands thus depriving her of their
possession and enjoyment.
Defendants in their answer set up as special defense that on
February 21, 1931, Maria Uson and her husband, the late
Faustino Nebreda, executed a public document whereby they
agreed to separate as husband and wife and, in
consideration of their separation, Maria Uson was given a
parcel of land by way of alimony and in return she renounced
- jann -
her right to inherit any other property that may be left by her
husband upon his death (Exhibit 1). After trial, at which both
parties presented their respective evidence, the court
rendered decision ordering the defendants to restore to the
plaintiff the ownership and possession of the lands in dispute
without special pronouncement as to costs. Defendants
interposed the present appeal.
There is no dispute that Maria Uson, plaintiff-appellee, is the
lawful wife of Faustino Nebreda, former owner of the five
parcels of lands litigated in the present case. There is
likewise no dispute that Maria del Rosario, one of the
defendants-appellants, was merely a common-law wife of the
late Faustino Nebreda with whom she had four illegitimate
children, her now co-defendants. It likewise appears that
Faustino Nebreda died in 1945 much prior to the effectivity of
the new Civil Code. With this background, it is evident that
when Faustino Nebreda died in 1945 the five parcels of land
he was seized of at the time passed from the moment of his
death to his only heir, his widow Maria Uson (Article 657, old
Civil Code). As this Court aptly said, "The property belongs
to the heirs at the moment of the death of the ancestor
as completely as if the ancestor had executed and
delivered to them a deed for the same before his death"
(Ilustre vs. Alaras Frondosa, 17 Phil., 321). From that
moment, therefore, the rights of inheritance of Maria Uson
over the lands in question became vested.
The claim of the defendants that Maria Uson had
relinquished her right over the lands in question because she
expressly renounced to inherit any future property that her
husband may acquire and leave upon his death in the deed
of separation they had entered into on February 21, 1931,
cannot be entertained for the simple reason that future
inheritance cannot be the subject of a contract nor can it be
renounced (1 Manresa, 123, sixth edition; Tolentino on Civil
Code, p. 12; Osorio vs. Osorio and Ynchausti Steamship Co.,
41 Phil., 531).
But defendants contend that, while it is true that the four
minor defendants are illegitimate children of the late Faustino
Nebreda and under the old Civil Code are not entitled to any
successional rights, however, under the new Civil Code
which became in force in June, 1950, they are given the
status and rights of natural children and are entitled to the
successional rights which the law accords to the latter (Article
2264 and article 287, new Civil Code), and because these
successional rights were declared for the first time in the new
code, they shall be given retroactive effect even though the
event which gave rise to them may have occurred under the
prior legislation (Article 2253, new Civil Code).
There is no merit in this claim. Article 2253 above referred to
provides indeed that rights which are declared for the first
time shall have retroactive effect even though the event
which gave rise to them may have occurred under the former
legislation, but this is so only when the new rights do not
prejudice any vested or acquired right of the same
origin . Thus, said article provides that "if a right should be
declared for the first time in this Code, it shall be effective at
once, even though the act or event which gives rise thereto
may have been done or may have occurred under the prior
legislation, provided said new right does not prejudice or
impair any vested or acquired right, of the same origin."  As
already stated in the early part of this decision, the right of
ownership of Maria Uson over the lands in question became
vested in 1945 upon the death of her late husband and this is
so because of the imperative provision of the law which
commands that the rights to succession are transmitted from
13
Wills & Succession/ Atty Uribe
the moment of death (Article 657, old Civil Code). The new
right recognized by the new Civil Code in favor of the
illegitimate chil d ren of the deceased cannot, therefore, be
asserted to the impairment of the vested right of Maria Uson
over the lands in dispute.
 As regards the claim that Maria Uson, while her deceased
husband was lying in state, in a gesture of pity or
compassion, agreed to assign the lands in question to the
minor children for the reason that they were acquired while
the deceased was living with their mother and Maria Uson
wanted to assuage somewhat the wrong she has done to
them, this much can be said; apart from the fact that this
claim is disputed, we are of the opinion that said assignment,
if any, partakes of the nature of a donation of real property,
inasmuch as it involves no material consideration, and in
order that it may be valid it shall be made in a public
document and must be accepted either in the same
document or in a separate one (Article 633, old Civil Code).
Inasmuch as this essential formality has not been followed, it
results that the alleged assignment or donation has no valid
effect. Wherefore, the decision appealed from is affirmed,
without costs.
6. De Borja vs. De Borja
It is uncontested that Francisco de Borja, upon the death of
his wife Josefa Tangco on 6 October 1940, filed a petition for
the probate of her will which was docketed as Special
Proceeding No. R-7866 of the Court of First Instance of
Rizal, Branch I. The will was probated on 2 April 1941. In
1946, Francisco de Borja was appointed executor and
administrator: in 1952, their son, Jose de Borja, was
appointed co-administrator. When Francisco died, on 14 April
1954, Jose became the sole administrator of the testate
estate of his mother, Jose Tangco While a widower
Francisco de Borja allegedly took unto himself a second wife,
Tasiana Ongsingco. Upon Francisco's death, Tasiana
instituted testate proceedings in the Court of First Instance of
Nueva Ecija, where, in 1955, she was appointed special
administratrix. The validity of Tasiana's marriage to Francisco
was questioned in said proceeding.
The relationship between the children of the first marriage
and Tasiana Ongsingco has been plagued with several court
suits and counter-suits; including the three cases at bar,
some eighteen (18) cases remain pending determination in
the courts. The testate estate of Josefa Tangco alone has
been unsettled for more than a quarter of a century. In order
to put an end to all these litigations, a compromise
agreement was entered into on 12 October 1963, 2 by and
between "[T]he heir and son of Francisco de Borja by his first
marriage, namely, Jose de Borja personally and as
administrator of the Testate Estate of Josefa Tangco," and
"[T]he heir and surviving spouse of Francisco de Borja by his
second marriage, Tasiana Ongsingco Vda. de Borja, assisted
by her lawyer, Atty. Luis Panaguiton, Jr."
On 16 May 1966, Jose de Borja submitted for Court approval
the agreement of 12 October 1963 to the Court of First
Instance of Rizal, in Special Proceeding No. R-7866; and
again, on 8 August 1966, to the Court of First Instance of
Nueva Ecija, in Special Proceeding No. 832. Tasiana
Ongsingco Vda. de de Borja opposed in both instances. The
Rizal court approved the compromise agreement, but the
Nueva Ecija court declared it void and unenforceable.
Special administratrix Tasiana Ongsingco Vda. de de Borja
appealed the Rizal Court's order of approval (now Supreme
Court G.R. case No. L-28040), while administrator Jose de
- jann -
Borja appealed the order of disapproval (G.R. case No. L-
28568) by the Court of First Instance of Nueva Ecija.
The genuineness and due execution of the compromise
agreement of 12 October 1963 is not disputed, but its validity
is, nevertheless, attacked by Tasiana Ongsingco on the
ground that: (1) the heirs cannot enter into such kind of
agreement without first probating the will of Francisco de
Borja; (2) that the same involves a compromise on the
validity of the marriage between Francisco de Borja and
Tasiana Ongsingco; and (3) that even if it were valid, it has
ceased to have force and effect.
In assailing the validity of the agreement of 12 October 1963,
Tasiana Ongsingco and the Probate Court of Nueva Ecija
rely on this Court's decision in Guevara vs. Guevara. 74 Phil.
479, wherein the Court's majority held the view that the
presentation of a will for probate is mandatory and that the
settlement and distribution of an estate on the basis of
intestacy when the decedent left a will, is against the law and
public policy. It is likewise pointed out by appellant Tasiana
Ongsingco that Section 1 of Rule 74 of the Revised Rules
explicitly conditions the validity of an extrajudicial settlement
of a decedent's estate by agreement between heirs, upon the
facts that "(if) the decedent left no will and no debts, and the
heirs are all of age, or the minors are represented by their
 judicial and legal representatives . . ." The will of Francisco
de Borja having been submitted to the Nueva Ecija Court and
still pending probate when the 1963 agreement was made,
those circumstances, it is argued, bar the validity of the
agreement.
Upon the other hand, in claiming the validity of the
compromise agreement, Jose de Borja stresses that at the
time it was entered into, on 12 October 1963, the governing
provision was Section 1, Rule 74 of the original Rules of
Court of 1940, which allowed the extrajudicial settlement of
the estate of a deceased person regardless of whether he left
a will or not. He also relies on the dissenting opinion of
Justice Moran, in Guevara vs. Guevara, 74 Phil. 479,
wherein was expressed the view that if the parties have
already divided the estate in accordance with a decedent's
will, the probate of the will is a useless ceremony; and if they
have divided the estate in a different manner, the probate of
the will is worse than useless.
This provision evidences beyond doubt that the ruling in the
Guevara case is not applicable to the cases at bar. There
was here no attempt to settle or distribute the estate of
Francisco de Borja among the heirs thereto before the
probate of his will. The clear object of the contract was
merely the conveyance by Tasiana Ongsingco of any and all
her individual share and interest, actual or eventual, in the
estate of Francisco de Borja and Josefa Tangco. There is no
stipulation as to any other claimant, creditor or legatee And
as a hereditary share in a decedent's estate is transmitted or
vested immediately from the moment of the death of such
causante or predecessor in interest (Civil Code of the
Philippines, Art. 777) 3 there is no legal bar to a successor
(with requisite contracting capacity) disposing of her or his
hereditary share immediately after such death, even if the
actual extent of such share is not determined until the
subsequent liquidation of the estate. 4 Of course, the effect
of such alienation is to be deemed limited to what is
ultimately adjudicated to the vendor heir. However, the
aleatory character of the contract does not affect the validity
of the transaction; neither does the coetaneous agreement
that the numerous litigations between the parties (the
approving order of the Rizal Court enumerates fourteen of
14
Wills & Succession/ Atty Uribe
them, Rec. App. pp. 79-82) are to be considered settled and
should be dismissed, although such stipulation, as noted by
the Rizal Court, gives the contract the character of a
compromise that the law favors, for obvious reasons, if only
because it serves to avoid a multiplicity of suits.
It is likewise worthy of note in this connection that as the
surviving spouse of Francisco de Borja, Tasiana Ongsingco
was his compulsory heir under article 995 et seq. of the
present Civil Code. Wherefore, barring unworthiness or valid
disinheritance, her successional interest existed independent
of Francisco de Borja's last will and testament, and would
exist even if such will were not probated at all. Thus, the
prerequisite of a previous probate of the will, as established
in the Guevara and analogous cases, can not apply to the
case of Tasiana Ongsingco Vda. de de Borja.
This brings us to the plea that the Court of First In stance of
Rizal had no jurisdiction to approve the compromise with
Jose de Borja (Annex A) because Tasiana Ongsingco was
not an heir in the estate of Josefa Tangco pending settlement
in the Rizal Court, but she was an heir of Francisco de Borja,
whose estate was the object of Special Proceeding No. 832
of the Court of First Instance of Nueva Ecija. This
circumstance is irrelevant, since what was sold by Tasiana
Ongsingco was only her eventual share in the estate of her
late husband, not the estate itself; and as already shown, that
eventual share she owned from the time of Francisco's death
and the Court of Nueva Ecija could not bar her selling it. As
owner of her undivided hereditary share, Tasiana could
dispose of it in favor of whomsoever she chose Such
alienation is expressly recognized and provided for by article
1088 of the present Civil Code:
 Art. 1088. Should any of the heirs sell his hereditary
rights to a stranger before the partition, any or all of the co-
heirs may be subrogated to the rights of the purchaser by
reimbursing him for the price of the sale, provided they do so
within the period of one month from the time they were
notified in writing of the sale of the vendor."
Tasiana Ongsingco further argues that her contract with Jose
de Borja (Annex "A") is void because it amounts to a
compromise as to her status and marriage with the late
Francisco de Borja. The point is without merit, for the very
opening paragraph of the agreement with Jose de Borja
(Annex "A") describes her as "the heir and surviving spouse
of Francisco de Borja by his second marriage, Tasiana
Ongsingco Vda. de de Borja", which is in itself definite
admission of her civil status. There is nothing in the text of
the agreement that would show that this recognition of
Ongsingco's status as the surviving spouse of Francisco de
Borja was only made in consideration of the cession of her
hereditary rights.
It is difficult to believe, however, that the amicable settlement
referred to in the order and motion above-mentioned was the
compromise agreement of 13 October 1963, which already
had been formally signed and executed by the parties and
duly notarized. What the record discloses is that some time
after its formalization, Ongsingco had unilaterally attempted
to back out from the compromise agreement, pleading
various reasons restated in the opposition to the Court's
approval of Annex "A" (Record on Appeal, L-20840, page
23): that the same was invalid because of the lapse of the
allegedly intended resolutory period of 60 days and because
the contract was not preceded by the probate of Francisco de
Borja's will, as required by this Court's Guevarra vs. Guevara
ruling; that Annex "A" involved a compromise affecting
- jann -
Ongsingco's status as wife and widow of Francisco de Borja,
etc., all of which objections have been already discussed.
It was natural that in view of the widow's attitude, Jose de
Borja should attempt to reach a new settlement or novatory
agreement before seeking judicial sanction and enforcement
of Annex "A", since the latter step might ultimately entail a
longer delay in attaining final remedy. That the attempt to
reach another settlement failed is apparent from the letter of
Ongsingco's counsel to Jose de Borja quoted in pages 35-36
of the brief for appellant Ongsingco in G.R. No. L-28040; and
it is more than probable that the order of 21 September 1964
and the motion of 17 June 1964 referred to the failure of the
parties' quest for a more satisfactory compromise. But the
inability to reach a novatory accord can not invalidate the
original compromise (Annex "A") and justifies the act of Jose
de Borja in finally seeking a court order for its approval and
enforcement from the Court of First Instance of Rizal, which,
as heretofore described, decreed that the agreement be
ultimately performed within 120 days from the finality of the
order, now under appeal. We conclude that in so doing, the
Rizal court acted in accordance with law, and, therefore, its
order should be upheld, while the contrary resolution of the
Court of First Instance of Nueva Ecija should be, and is,
reversed.
7. Bonilla vs. Barcena
On March 31, 1975 Fortunata Barcena, mother of minors
Rosalio Bonilla and Salvacion Bonilla and wife of Ponciano
Bonilla, instituted a civil action in the Court of First Instance
of Abra, to quiet title over certain parcels of land located in
 Abra. On August 4, 1975, the defendants filed another
motion to dismiss the complaint on the ground that Fortunata
Barcena is dead and, therefore, has no legal capacity to sue.
Said motion to dismiss was heard on August 14, 1975. In
said hearing, counsel for the plaintiff confirmed the death of
Fortunata Barcena and asked for substitution by her minor
children and her husband, the petitioners herein; but the
court after the hearing immediately dismissed the case on
the ground that a dead person cannot be a real party in
interest and has no legal personality to sue.
On August 28, 1975, the court denied the motion for
reconsideration filed by counsel for the plaintiff for lack of
merit. On September 1, 1975, counsel for deceased plaintiff
filed a written manifestation praying that the minors Rosalio
Bonilla and Salvacion Bonilla be allowed to substitute their
deceased mother, but the court denied the counsel's prayer
for lack of merit. From the order, counsel for the deceased
plaintiff filed a second motion for reconsideration of the order
dismissing the complaint claiming that the same is in violation
of Sections 16 and 17 of Rule 3 of the Rules of Court but the
same was denied.
The Court reverses the respondent Court and sets aside its
order dismissing the complaint in Civil Case No. 856 and its
orders denying the motion for reconsideration of said order of
dismissal. While it is true that a person who is dead cannot
sue in court, yet he can be substituted by his heirs in
pursuing the case up to its completion. The records of this
case show that the death of Fortunata Barcena took place on
July 9, 1975 while the complaint was filed on March 31,
1975. This means that when the complaint was filed on
March 31, 1975, Fortunata Barcena was still alive, and
therefore, the court had acquired jurisdiction over her person.
If thereafter she died, the Rules of Court prescribes the
procedure whereby a party who died during the pendency of
the proceeding can be substituted. Under Section 16, Rule 3
15
Wills & Succession/ Atty Uribe
expr
expres
essl
sly
y appe
appear
ar by the
the will
will that
that such
such was
was his
his Said legatees or their descendants or heirs did not judicially
intention. (n) claim their legacies during the life-time of Leandro Serrano, of
whic
whichh he had had take
taken
n poss
possesessi
sion
on,, nei
neither
ther was
was any
any
T: This article is inconsistent with the principle of inheritance testamentary proceeding instituted for the settlement of the
laid down under the code. The inheritance includes all the estate left by Maria Solla and that Leandro Serrano did not
property,
property, rights, and obligatio
obligations
ns not extinguish
extinguished
ed by death.
death. deliver the legacies in question, which he possessed in his
To follow this article would mean that only the property at name until his death, having declared the property for taxation
the time of making the will shall be transmitted to the heir as his own and collected the income therefrom for himself.
unless
unless there
there is an express
express declarat
declaration
ion under
under the will to
include properties acquired before death of testator but after  As may also be seen Leandro Serrano named his son
making the will. This contravenes Art. 777 of the code. Simeon Serrano, as executor of his will and that he directed
him to put all of his property in order and to separate that
which
which came from his deceased grandmother
grandmother Maria Solla,
Hence, it must be construed as referring only to devises and which he gives to his said son Simeon Serrano and orders
legacies and not to inheritance. After all this article is under that same be disposed of exclusively in conformity with the
the chapter of testamentary dispositions. The problem now wishes of his said grandmother, not forgetting the souls of all
arises with its irreconcilable conflict with Art. 930.
of his grandmot
grandmotherher's
's relati
relatives
ves and of his own for whose
whose
repose nine masses were to be said annually during nine
 Art. 794. Every devise
devise or legacy shall cover all the days, with a solemn mass on the first and last days.
interest which the testator could device or bequeath In order to determine the testator's intention, the court should
in the property disposed of, unless it clearly appears place itself as near as possible in his position, and hence,
from the will that he intended to convey a less where the language of the will is ambiguous or doubtful,
interest. (n) should take into consideration the situation of the testator
and the facts and circumstances surrounding him at the time
T: When the Testator does not state the extent of the interest the will was executed.
executed. (40 Cyc., 1392.) Where the testator's
testator's
that he gives to the legatee or devisee in the property inten
intentio
tion
n is mani
manifefest
st from
from the
the conte
context
xt of the will
will and
and
transmitted, it is understood that his whole interest passes, surrou
surroundi
nding
ng circum
circumsta
stance
nces,
s, but is obscur
obscured
ed by inapt
inapt and
no more no less. But the testator, under the present article, inac
inaccu
cura
rate
te mode
modes s of expr
expres
essi
sion
on,, the lang
langua
uage
ge will
will be
may manifest his intention to convey a less interest; and subordinated to the intention, and in order to give effect to
under article 929, he may expressly convey a larger interest. such intention,
intention, as far as possible, the court may depart from
In such cases, the intention of the testator will be followed. the strict wording and read a word or phrase in a sense
different from that which is ordinarily attributed to it, and for
such purpose may mould or change the language of the will,
 Art. 930. The legacy or devise of a thing belonging to such as restricting its application or supplying omitted words
another person is void, if the testator erroneously or phrases. (40 Cyc., 1399.)
 believed that the thing pertained to him. But if the
thin
thingg bequ
bequea
eath
thed
ed,, thou
though
gh not
not belo
belongngin
ing
g to the
the In the present case, it clearly appearing that it was Maria
testator when he made the will, afterwards becomes Solla'
Solla'ss intent
intention
ion,, in orderi
ordering
ng her univer
universal
sal heir
heir Leandr
Leandro o
his,
his, by whatev
whatever
er title,
title, the dispos
dispositi
ition
on shall
shall take
take Serrano in her will at the hour of his death, to insist upon the
effect. (862a) compliance of her orders by his heirs, that the latter should
comply with her pious orders and that she did not mean her
The presumption under this article is that had the testator orders concerning her legacies, the compliance of which she
known the fact that another owns the property, he would not had entrus
entrusted
ted to Leandr
Leandro o Serran
Serrano,
o, we are author
authorize
izedd to
have
have made
made the
the lega
legacy
cy.. The
The igno
ignora
ranc
ncee of the
the test
testat
ator
or is restri
restrict
ct the applicat
application
ion of the words "all that I have
have here
here
presumed by law. ordered" used by the said Maria Solla and the words "all her
orders"
orders" used by Leandro Serrano in their respective
respective wills
limiting them to the pious orders and substituting the phrase
Its must be noted that if the subsequent change of ownership "in regard to the annual masses" after the words used by
transferred the thing to the very person to whom it was being both testators, respectively.
given
given as a devise
devise or legacy
legacy,, and by lucrat
lucrative
ive title,
title, or to The trial court, therefore, committed an error in interpreting
another third person, the legacy is void. the
the orde
orderr of Lean
Leandr
droo Serra
Serrano
no ment
mentio
ione
ned
d in his
his will
will as
applicable to the provisions of Maria Solla's will relative to the
Solla vs. Ascuenta legacies and not to the pious bequests exclusively.

Dña. Maria Solla died in June, 1883, in the municipality of

D. Law Governing Form
Cabugao, Ilocos Sur, leaving a will executed and recorded in
accordance with the laws then in force, but which had not
 Art. 795. The validity
validity of a will as to its
its form depends
been
been prob
probat
ated
ed in acco
accord
rdan
ance
ce with
with the
the Code
Code of Civi
Civill
upon the observance of the law in force at the time it
Procedure.
is made. (n)
There
There were
were named
named in said
said will,
will, as legate
legatees
es Sergio
Sergio Solla,
Solla,
Caye
Cayetan
tanoo Soll
Solla,
a, Jose
Josefa
fa Solla
Solla,, Jaci
Jacinto
nto Sern
Serna,
a, Rose
Rosend
nda a
Lagmay, The general rule is that given in the present article, that the
Silvestra Sajor and Matias Sevedea, and Leandro Serrano,  validity of the execution of a will is controlled by the statute
as universal heir, with their shares given them by the will in force at the time of execution; and a statute enacted
above-mentioned. subsequent to the execution and prior to the death of the
testator, changing the rules respecting the form of the

- jann - 22
Wills & Succession/ Atty Uribe
instrument, the capacity of the testator, and the like, has no  Art. 815. When a Filipino is in a foreign country, he
retrospective effect. is auth
author
oriz
ized
ed to make
make a will
will in any
any of the
the form
formss
established by the law of the country in which he
However, the intrinsic validity of the will, although executed may be. Such will may be probated in the
in the Philippines, is governed by the laws of the state or Philippines. (n)
country of which the testator was a citizen or subject at the
time of his death. The place of execution has no effect The article follows the general rule that the law governing the
 whatever upon the validity of the provisions
provisions of the will. formal vailidity of wills is the law of the place where it is
executed. Yet a Filipino may make will in a foreigh country in
The law may be changed after the will has been made. The conformity with our laws and not of the place of execution.
provisions may be valid at the time it was made but may be  Article 816 and 817 shall
shall govern.
contrary to the law at the time of the death of the testator. In
such case, the law at the time of the death of the testator will
apply. It is the law at the time when the succession opens  Art. 816. The will of an alien who is abroad produces
 which must determine the intrinsic
intrinsic validity of the provisions effect in the Philippines if made with the formalities
of the will, because it is at this time that the rights are pres
prescr
crib
ibed
ed by the
the law
law of the
the plac
place
e in whic
which
h he
transmitted to the heirs, devisees, or legatees. resides, or according to the formalities observed in
his country, or in conformity with those which this
Code prescribes. (n)
 Art. 17. The forms and solemnities of contracts,
 wills, and other public instruments shall be  Art. 817. A will made in the Philippines by a citizen
governed by the laws of the country in which they or subject of another country, which is executed in
are executed. accordance with the law of the country of which he is
a citizen or subject, and which might be proved and
allowed by the law of his own country, shall have the
 When the acts referred to are executed before the same effect as if executed according to the laws of
diplomatic or consular officials of the Republic of the Philippines. (n)
the Philippines in a foreign country, the solemnities
established by Philippine laws shall be observed in
their execution. If an alie
alien
n exec
execut
utes
es a will
will in the
the Phil
Philip
ippi
pine
nes,
s, not
not in
conformity with our law, but in conformity with the law of his
own
own stat
statee or count
country
ry,, the
the will
will can
can be prob
probat
ated
ed in the
the
Prohibitiv
Prohibitivee laws concerning
concerning persons,
persons, their
their acts or Philippines.
proper
property,
ty, and those
those which
which have,
have, for their
their object
object,,
public order, public policy and good customs shall
not be rendered
rendered ineffective
ineffective by laws or judgments
judgments  Art. 818. Two or more persons cannot make a will
promulgated, or by determinations or conventions  jointly, or in the same instrument, either for their
agreed upon in a foreign country. (11a) reci
recipr
proc
ocal
al bene
benefi
fitt or for
for the
the bene
benefi
fitt of a thir
third
d
person. (669)
 Art. 18. In matters which are governed by the Code
of Commerce and special laws, their deficiency shall  A joint will is one where the same instrument is made the will
 be supplied by the provisions of this Code. (16a) of two or more persons and is jointly signed by them. Such
 will may be probate upon the death of one and subsequently
probated again upon the death of the other testator. Usually
made to dispose joint properties.
Matters
Matters connected
connected with the performance
performance of contracts are
regulated
regulated by the law prevailin
prevailingg at the place of performanc
performance.e.
Remedi
Remedies,
es, such as the bringi
bringing
ng of suit,
suit, admiss
admissibi
ibilit
lity
y of Mutual will, OTOH, may be defined as the separate wills of
evidence, and the statute of limitations, depend upon the law two persons, which are reciprocal
reciprocal in their provisions.
provisions. A will
of the place where the action is brought. that is both joint and mutual is one executed jointly by teo or
more persons and which shows on its face that the devises are
made one in consideration of the other.
In terms of the validity and effect of obligations, the following
rules
rules shall
shall be follow
followed.
ed. First,
First, the law design
designate
ated
d by the
parti
parties
es shall
shall be applie
applied;
d; if there is no stipul
stipulati
ation
on on the Ratio for prohibition:
matter, and the parties of the same nationality, their national
law shall be applied; if this is not the case, the law of the place a. purely
purely perso
personal
nal and
and unilater
unilateral
al charac
character
terist
istic
ic of wills
wills
of perfection of the obligation shall govern its fulfillment; but are defeated
if these places are not specified and they cannot be deduced  b. contrary to the revocable character of wills, if one
from the nature and circumstances of the obligation, then the revokes the will no document is left for the other to
law of the domicile of the passive subjects shall apply. revoke specially in cases were the revocation is done
 by destroying or tearing the will.
 Art. 810. A person may execute a holographic will c. may
may expos
exposee a testat
testator
or to undu
unduee influ
influenc
encee
 which must be entirely written, dated, and signed by d. may
may tempt
tempt one
one toto kill
kill the
the othe
otherr testa
testator
tor
the hand of the testator himself. It is subject to no e. agai
agains
nstt pub
publi
licc pol
polic
icy 
y 
othe
otherr form
form,, and
and may
may be made
made in or outout of the
the
Philippines, and need not be witnessed. (678, 688a)  What is actually prohibited, therefore, is the execution of a
 will in a SINGLE DOCUMENT
DOCUMENT and by ONE ACT.

- jann - 23
Wills & Succession/ Atty Uribe
 Art. 819. Wills, prohibited by the preceding article, Virginia. The present proceedings do not call for any specific
executed by Filipinos in a foreign country shall not pronouncements on the validity or invalidity of this alleged
 be valid in the Philippines, even though authorized divorce.For all of the foregoing, the judgment appealed from
 by the laws of the country where they may have been will be affirmed, with the costs of this instance against the
executed. (733a) appellant.V
appellant.Villamo
illamor,
r, Ostrand,
Ostrand, Johns, Romualdez and Villa-
Real, JJ., concur.

Fleumer vs. Hix

Dela Cerna vs. Potot
It is the theory of the petitioner that the alleged will was
"It appears that on May 9, 1939, the spouses, Bernabe de la
executed in Elkins, West Virginia, on November 3, 1925, by
Cerna and Gervasia Rebaca, executed a joint last will and
Hix who had his residence in that jurisdiction, and that the
testament in the local dialect whereby they willed that 'our
laws
laws of West
West Virg
Virgin
inia
ia gove
govern
rn.. To this
this end,
end, ther
there
e was
was
two parcels of land acquired during our marriage together
submitted a copy of section 3868 of Acts 1882, c. 84 as
with all improvements thereon shall be given to Manuela
found in West Virginia Code, Annotated, by Hogg, Charles
Rebaca, our niece, whom we have nurtured since childhood,
E., vol. 2, 1914, p. 1690, and as certified to by the Director of
because God did not give us any child in our union, Manuela
the National Library. But this was far from a compliance with
Rebaca being married to Nicolas Potot', and that 'while each
the
the law.
law. The
The laws
laws of a forei
foreign
gn juri
jurisd
sdic
icti
tion
on do not
not prov
prove
e
of the testator is yet living, he or she will continue to enjoy the
themselves in our courts. The courts of the Philippine Islands
fruits of the two lands aforementioned', the said two parcels
are not authorized to take judicial notice of the laws of the
of land being covered by Tax No. 4676 and Tax No. 6677,
various States of the American Union. Such laws must be
both situated in sitio Bucao, barrio Lugo, municipality of
proved as facts. (In re Estate of Johnson [1918], 39 Phil.,
Borbon, province of Cebu. Bernabe de la Cerna died on
156.) Here the requirements of the law were not met. There
 August 30, 1939, and the aforesaid will was submitted to
was no showing that the book from which an extract was
probate by said Gervasia and Manuela before the Court of
taken was printed or published under the authority of the
First Instance of Cebu which, after due publication as
State of West Virginia, as provided in section 300 of the
required by law and there being no opposition, heard the
Code of Civil Procedure. Nor was the extract from the law
evidence,
attested by the certificate of the officer having charge of the
original, under the seal of the State of West Virginia, as The appealed decision correctly held that the final decree of
provided in section 301 of the Code of Civil Procedure. No probate, entered in 1939 by the Court of First Instance of
evidence was introduced to show that the extract from the Cebu (when the testator, Bernabe de la Cerna, died), has
laws of West Virginia was in force at the time the alleged will conclusive effect as to his last will and testament, despite the
was executed. fact
fact that
that even
even then
then the Civil Code alread
already
y decree
decreed d the
invalidity of joint wills, whether in favor of the joint testators,
While the appeal was pending submission in this court, the reciprocally, or in favor of a third party (Art. 669, old Civil
attorney
attorney for the appellant
appellant presented an unverified
unverified petition Code). The error thus committed by the probate court was an
aski
asking
ng thethe cour
courtt to acce
accept
pt as part
part of the
the evid
eviden
ence
ce the error of law, that should have been corrected by appeal, but
documents attached to the petition. One of these documents which did not affect the jurisdiction of the probate court, nor
discloses that a paper writing purporting to be the last will the conclusive effect of its final decision, however erroneous.
and testame
testament nt of Edward
Edward Randol
Randolph ph Hix,
Hix, deceas
deceased,
ed, was  A final judgment rendered on a petition for the probate of a
pres
presenented
ted for prob
probatate
e on June
June 8, 1929
1929,, to the clerk
clerk of will is binding upon the whole world (Manalo vs. Paredes, 47
Randolph County, State of West Virginia, in vacation, and Phil. 938; In re Estate of Johnson, 39 Phil. 156); and public
was duly proven by the oaths of Dana Wamsley Wamsley and Joseph poli
policy
cy and
and soun
soundd prac
practi
tice
ce dema
demand nd that
that at the riskrisk of
L. Madden, the subscribing witnesses thereto, and ordered to occasional errors, judgment of courts should become final at
be recorded and filed. It was shown by another document some definite date fixed by law. Interest rei publicae ut finis
that
that,, in vaca
vacati
tion
on,, on June
June 8, 1929
1929,, the
the cler
clerk
k of court
court of sit litium (Dy Cay vs. Crossfield, 38 Phil. 521, and other
Randol
Randolph ph County
County,, West
West Virgin
Virginia,
ia, appoin
appointed
ted Claude
Claude W. cases cited in 2 Moran, Comments on the Rules of Court
Maxwell as administrator, cum testamento annexo, of the 1963 Ed., p. 322).
esta
estatete of EdwaEdward rd Rand
Randol
olph
ph Hix,
Hix, dece
deceas
ased
ed.. In this
this
connec
connectio tion,
n, it is to be noted that the applicati
application
on for the
probate of the will in the Philippines was filed on February 20, Petitioners, as heirs and successors of the late Bernabe de la
1929, while the proceedings in West Virginia appear to have Cerna, are concluded by the 1939 decree admitting his will to
been
been initia
initiated
ted on JuneJune 8, 1929.
1929. These
These facts
facts are strongly
strongly probate. The contention that being void the will cannot be
indicative of an intention to make the Philippines the principal validated, overlooks that the ultimate decision on whether an
administration and West Virginia the ancillary administration. act is valid or void rests with the courts, and here they have
However this may be, no attempt has been made to comply spoken with finality when the will was probated in 1939. On
with the provisions of sections 637, 638, and 639 of the Code this
this count,
count, the dismis
dismissal
sal of their
their action
action for partiti
partition
on was
of Civil Procedure, for no hearing on the question of the correct.
allowance of a will said to have been proved and allowed in
West Virginia has been requested. There is no showing that But the Court of Appeals should have taken into account
the deceased left any property at any place other than the also,
also, to avoid
avoid future
future misund
misunders
erstan
tandin
ding,
g, that
that the probat
probatee
Philippine Islands and no contention that he left any in West decree in 1939 could only affect the share of the deceased
Virginia. husban
husband,
d, Bernab
Bernabe e de la Cerna.
Cerna. It could
could not include
include the
disposition of the share of the wife, Gervasia Rebaca, who
Refer
Referen
ence
ce has
has been
been made
made by the
the parti
parties
es to a divo
divorc
rce
e was then still alive, and over whose interest in the conjugal
purported to have been awarded Edward Randolph Hix from prop
proper
ertie
ties
s the probprobate
ate cour
courtt acqu
acquir
ired
ed no jurijurisd
sdic
ictio
tion,
n,
 Annie Cousins Hix on October 8, 1925, in the State of West precisely because her estate could not then be in issue. Be it

- jann - 24
Wills & Succession/ Atty Uribe
remembered that prior to the Civil Code, a will could not be
probated during the testator's lifetime.
It follows that the validity of the joint will, in so far as the
estate of the wife was concerned, must be, on her death,
reexamined and adjudicated de novo (from the beginning),
since a joint will is considered a separate will of each
testator. Thus regarded, the holding of the Court of First
Instance of Cebu that the joint will is one prohibited by law
was correct as to the participation of the deceased Gervasia
Rebaca in the properties in question, for the reasons
extensively discussed in our decision in Bilbao vs. Bilbao, 87
Phil. 144, that explained the previous holding in Macrohon
vs. Saavedra, 51 Phil., 267. Therefore, the undivided interest
of Gervasia Rebaca should pass upon her death to her heirs
intestate, and not exclusively to the testamentary heir, unless
some other valid will in her favor is shown to exist, or unless
she be the only heir intestate of said Gervasia. It is
unnecessary to emphasize that the fact that joint wills should
be in common usage could not make them valid when our
Civil Codes consistently invalidated them, because laws are
only repealed by other subsequent laws, and no usage to the
contrary may prevail against their observance.
E. Law Governing Content
1. As to time
Art. 2263. Rights to the inheritance of a person who died,
with or without a will, before the effectivity of this Code,
shall be governed by the Civil Code of 1889, by other
previous laws, and by the Rules of Court. The
inheritance of those who, with or without a will, die after
the beginning of the effectivity of this Code, shall be
adjudicated and distributed in accordance with this new
body of laws and by the Rules of Court; but the
testamentary provisions shall be carried out insofar as
they may be permitted by this Code. Therefore,
legitimes, betterments, legacies and bequests shall be
respected; however, their amount shall be reduced if in
no other manner can every compulsory heir be given his
full share according to this Code. (Rule 12a)
The decisive fact which gives origin to the right of heirs,
devisees and legatees is the death of the decedent. This is
the basis of the present article. Thus, the provisions of the
new code relaxing the rigidity of the rules of the old code
regarding proof or recognition of natural children, were held
inapplicable to one claiming recognition and a share in the
estate of the alleged natural father who died before the new
code went into effect.
2. As to successional rights
 Art. 16. Real property as well as personal property is
subject to the law of the country where it is
stipulated.
However, intestate and testamentary successions,
 both with respect to the order of succession and to
the amount of successional rights and to the
intrinsic validity of testamentary provisions, shall be
regulated by the national law of the person whose
succession is under consideration, whatever may be
the nature of the property and regardless of the
country wherein said property may be found. (10a)
- jann -
The distribution of the estate is governed by the law of the
nation of the deceased; the present article applies in such
case. It may involve various questions such as:
1. order of succession in intestacy
2. intrinsic validity of a will
3. extent of property an heir is entitled
4. capacity to succeed of heirs
5. questions of preterition, disinheritance, and
collation.
In above cases, the national law of the decedent applies and
the ratio of which is stated by Dean Capistrano in this wise:
With regard to succession there is only one will, express in
testatmentary and presumed in intestate succession. The
oneness and universality of the inheritance cannot be divided
or broken up merely because of the different countries where
the properties of the estate are situated.
The intrinsic validity of the provisions of the will of a foreigner
who dies in the Philippines is to be determined by the laws of
his own state or country, and not by those of the Philippines.
The second paragraph of this article can only invoked when
the deceased eas vested with a descendible interest in
property within the jurisdiction of the Philippines.
When a foreign law is invoked it must be proved. (fluemer vs.
Hix)
In re the estate of Amos G. Bellis
 Amos G. Bellis, born in Texas, was "a citizen of the State of
Texas and of the United States." By his first wife, Mary E.
Mallen, whom he divorced, he had five legitimate children:
Edward A. Bellis, George Bellis (who pre-deceased him in
infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis
 Allsman; by his second wife, Violet Kennedy, who survived
him, he had three legitimate children: Edwin G. Bellis, Walter
S. Bellis and Dorothy Bellis; and finally, he had three
illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis
and Miriam Palma Bellis.
On August 5, 1952, Amos G. Bellis executed a will in the
Philippines, in which he directed that after all taxes,
obligations, and expenses of administration are paid for, his
distributable estate should be divided, in trust, in the following
order and manner: (a) $240,000.00 to his first wife, Mary E.
Mallen; (b) P120,000.00 to his three illegitimate children,
 Amos Bellis, Jr., Maria Cristina Bellis, and Miriam Palma
Bellis, or P40,000.00 each and (c) after the foregoing two
items have been satisfied, the remainder shall go to his
seven surviving children by his first and second wives,
namely: Edward A. Bellis, Henry A. Bellis, Alexander Bellis,
and Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis,
and Dorothy E. Bellis, in equal shares.
Subsequently, or on July 8, 1958, Amos G. Bellis died, a
resident of San Antonio, Texas, U.S.A. His will was admitted
to probate in the Court of First Instance of Manila on
September 15, 1958.
The People's Bank and Trust Company, as executor of the
will, paid all the bequests therein including the amount of
$240,000.00 in the form of shares of stock to Mary E. Mallen
and to the three (3) illegitimate children, Amos Bellis, Jr.,
Maria Cristina Bellis and Miriam Palma Bellis, various
amounts totalling P40,000.00 each in satisfaction of their
respective legacies, or a total of P120,000.00, which it
25
Wills & Succession/ Atty Uribe
released from time to time according as the lower court
approved and allowed the various motions or petitions filed
by the latter three requesting partial advances on account of
their respective legacies.
On January 17, 1964, Maria Cristina Bellis and Miriam Palma
Bellis filed their respective oppositions to the project of
partition on the ground that they were deprived of their
legitimes as illegitimate children and, therefore, compulsory
heirs of the deceased.
 Article 16, par. 2, and Art. 1039 of the Civil Code, render
applicable the national law of the decedent, in intestate or
testamentary successions, with regard to four items: (a) the
order of succession; (b) the amount of successional rights;
(c) the intrinsic validity of the provisions of the will; and (d)
the capacity to succeed. They provide that —
"Art 16. Real property as well as personal property
is subject to the law of the country where it is
situated.
"However", intestate and testamentary
successions, both with respect to the order of
succession and to the amount of successional
rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national
law of the person whose succession is under
consideration, whatever may be the nature of the
property and regardless of the country wherein
said property may be found."
"Art. 1039. Capacity to succeed is
governed by the law of the nation of the
decedent."
 Appellants would however counter that Article 17, paragraph
three, of the Civil Code, stating that —
"Prohibitive laws concerning persons, their acts or
property, and those which have for their object
public order, public policy and good customs shall
not be rendered ineffective by laws, or judgments
promulgated, or by determinations or conventions
agreed upon in a foreign country."
prevails as the exception to Art. 16, par. 2 of the Civil Code
aforequoted. This is not correct. Precisely, Congress deleted
the phrase, "notwithstanding the provisions of this and the
next preceding article" when they incorporated Art. 11 of the
old Civil Code as Art. 17 of the new Civil Code, while
reproducing without substantial change the second
paragraph of Art. 10 of the old Civil Code as Art. 16 in the
new. It must have been their purpose to make the second
paragraph of Art. 16 a specific provision in itself which must
be applied in testate and intestate successions. As further
indication of this legislative intent, Congress added a new
provision, under Art. 1039, which decrees that capacity to
succeed is to be governed by the national law of the
decedent.
It is therefore evident that whatever public policy or good
customs may be involved in our system of legitimes,
Congress has not intended to extend the same to the
succession of foreign nationals. For it has specifically chosen
to leave, inter alia, the amount of successional rights, to the
decedent's national Law. Specific provisions must prevail
over general ones.
 Appellants would also point out that the decedent executed
two wills — one to govern his Texas estate and the other his
- jann -
Philippine estate — arguing from this that he intended
Philippine law to govern his Philippine estate. Assuming that
such was the decedent's intention in executing a separate
Philippine will, it would not alter the law, for as this Court
ruled in Miciano vs. Brimo, 50 Phil. 867, 870, a provision in a
foreigner's will to the effect that his properties shall be
distributed in accordance with Philippine law and not with his
national law, is illegal and void, for his national law cannot be
ignored in regard to those matters that Article 10 — now
 Article 16 — of the Civil Code states said national law should
govern.
The parties admit that the decedent, Amos G. Bellis, was a
citizen of the State of Texas, U.S.A., and that under the laws
of Texas, there are no forced heirs or legitimes. Accordingly,
since the intrinsic validity of the provision of the will and the
amount of successional rights are to be determined under
Texas law, the Philippine law on legitimes cannot be applied
to the testacy of Amos G. Bellis.
Cayetano vs. Leonides 129 SCRA 522
On January 31, 1977, Adoracion C. Campos died, leaving
her father, petitioner Hermogenes Campos and her sisters,
private respondent Nenita C. Paguia, Remedios C. Lopez
and Marieta C. Medina as the surviving heirs. As
Hermogenes Campos was the only compulsory heir, he
executed an Affidavit of Adjudication under Rule 74, Section I
of the Rules of Court whereby he adjudicated unto himself
the ownership of the entire estate of the deceased Adoracion
Campos.
Eleven months after, on November 25, 1977, Nenita C.
Paguia filed a petition for the reprobate of a will of the
deceased, Adoracion Campos, which was allegedly executed
in the United States and for her appointment as administratrix
of the estate of the deceased testatrix.
In her petition, Nenita alleged that the testatrix was an
 American citizen at the time of her death and was a
permanent resident of 4633 Ditman Street, Philadelphia,
Pennsylvania, U.S.A.; that the testatrix died in Manila on
January 31, 1977 while temporarily residing with her sister at
2167 Leveriza, Malate, Manila; that during her lifetime, the
testatrix made her last will and testament on July 10, 1975,
according to the laws of Pennsylvania, U.S.A., nominating
Wilfredo Barzaga of New Jersey as executor; that after the
testatrix' death, her last will and testament was presented,
probated, allowed, and registered with the Registry of Wills at
the County of Philadelphia, U.S.A., that Clement L.
McLaughlin, the administrator who was appointed after Dr.
Barzaga had declined and waived his appointment as
executor in favor of the former, is also a resident of
Philadelphia, U.S.A., and that therefore, there is an urgent
need for the appointment of an administratrix to administer
and eventually distribute the properties of the estate located
in the Philippines.
Meanwhile, on June 6, 1982, petitioner Hermogenes Campos
died and left a will, which, incidentally has been questioned
by the respondent, his children and forced heirs as, on its
face patently null and void, and a fabrication, appointing Polly
Cayetano as the executrix of his last will and testament.
Cayetano, therefore, filed a motion to substitute herself as
petitioner in the instant case which was granted by the court
on September 13, 1982.
ISSUE: Whether or not a compulsory heir may be validly
excluded by a will executed by a foreign testator?
26
Wills & Succession/ Atty Uribe
HELD: YES
RATIO: Although on its face, the will appeared to have
preterited the petitioner and thus, the respondent judge
should have denied its reprobate outright, the private
respondents have sufficiently established that Adoracion
was, at the time of her death, an American citizen and a
permanent resident of Philadelphia, Pennsylvania, U.S.A.
Therefore, under Article 16 par. (2) and 1039 of the Civil
Code which respectively provide:
 Art. 16 par. (2)."However, intestate and
testamentary successions, both with respect to the
order of succession and to the amount of
successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the
national law of the person whose succession is
under consideration, whatever may be the nature of
the property and regardless of the country wherein
said property may be found."
 Art. 1039."Capacity to succeed is governed by the law of the
nation of the decedent."
the law which governs Adoracion Campo's will is the law of
Pennsylvania, U.S.A., which is the national law of the
decedent. Although the parties admit that the Pennsylvania
law does not provide for legitimes and that all the estate may
be given away by the testatrix to a complete stranger, the
petitioner argues that such law should not apply because it
would be contrary to the sound and established public policy
and would run counter to the specific provisions of Philippine
Law.
It is a settled rule that as regards the intrinsic validity of the
provisions of the will, as provided for by Article 16 (2) and
1039 of the Civil Code, the national law of the decedent must
apply. This was squarely applied in the case of Bellis v. Bellis
(20 SCRA 358) wherein we ruled:"It is therefore evident that
whatever public policy or good customs may be involved in
our system of legitimes, Congress has not intended to extend
the same to the succession of foreign nationals. For it has
specifically chosen to leave, inter alia, the amount of
successional rights, to the decedent's national law. Specific
provisions must prevail over general ones.
III. TESTAMENTARY CAPACITY
 A. Who may make a will?
 Art. 796. All persons who are not expressly
prohibited by law may make a will. (662)
 Art. 797. Persons of either sex under eighteen years
of age cannot make a will. (n)
 Art. 798. In order to make a will it is essential that
the testator be of sound mind at the time of its
execution. (n)
 Art. 799. To be of sound mind, it is not necessary
that the testator be in full possession of all his
reasoning faculties, or that his mind be wholly
unbroken, unimpaired, or unshattered by disease,
injury or other cause.
It shall be sufficient if the testator was able at the
time of making the will to know the nature of the
estate to be disposed of, the proper objects of his
- jann -
 bounty, and the character of the testamentary act.
(n)
B: requisite of sanity to execute a will is based on the
testator’s ability to know three things:
1. Nature of the estate to be disposed- the
testator should have a fairly accurate knowledge of
 what he owns. Accurate should be understood in the
relative sense. The more one owns the less accurate
is one’s knowledge of his estate expected to be.
Henry Sy might have a far less accurate picture of
his economic empire than a poverty stricken laborer.
2. Proper objects of his bounty - under ordinary
circumstances, the testator should know his
relatives in the proximate degrees. As the degree of
relationship goes further, it is less likely that he
knows them.
3. Character of the testamentary act- it is not
required, in order for this requisite to be present,
that the testator know the legal nature of a will with
the erudition of a civilest. All that he need know is
that the document he is executing is one that
disposes of his property upon death.
T: Neither sickness, old age, deafness, senile debility,
 blindness, nor poor memory is by itself sufficient to establish
a presumption of lack of testamentary capacity, actual
insanity need not exist in order that a person may be said to
lack testamentary capacity. It is enough that the mental
condition be such that there is want of understanding of the
nature and consequences of the disposition by will.
 Art. 800. The law presumes that every person is of
sound mind, in the absence of proof to the contrary.
The burden of proof that the testator was not of
sound mind at the time of making his dispositions is
on the person who opposes the probate of the will;
 but if the testator, one month, or less, before making
his will was publicly known to be insane, the person
 who maintains the validity of the will must prove
that the testator made it during a lucid interval. (n)
 Art. 801. Supervening incapacity does not invalidate
an effective will, nor is the will of an incapable
 validated by the supervening of capacity. (n)
The capacity of the person who leaves a will is to be
determined as of the time of execution of such will. Any prior
or subsequent incapacity will not affect the validity of the
 will. It will, however, in cases of prior incapacity within 30
days from the making of the will merely shift the burden of
proof of capacity on the person maintaining the validity of the
 will. (Art. 800)
 Art. 802. A married woman may make a will without
the consent of her husband, and without the
authority of the court. (n)
 Art. 803. A married woman may dispose by will of all
her separate property as well as her share of the
conjugal partnership or absolute community
27
Wills & Succession/ Atty Uribe
property. (n)
B. Supervening Incapacity
 Art. 801. Supervening incapacity does not invalidate
an effective will, nor is the will of an incapable
 validated by the supervening of capacity. (n)
The capacity of the person who leaves a will is to be
determined as of the time of execution of such will. Any prior
or subsequent incapacity will not affect the validity of the
 will. It will, however, in cases of prior incapacity within 30
days from the making of the will merely shift the burden of
proof of capacity on the person maintaining the validity of the
 will. (Art. 800)
IV. SOLEMNITIES OF WILLS
 A. Kinds of Wills
 Art. 804. Every will must be in writing and executed
in a language or dialect known to the testator. (n)
 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. (678, 688a)
T: the following are the advantages of a holographic will:
1. simple and easy to make for those a) who have no means to
employ a lawyer, b)who are timid and wants to reread their
 wills before signing, c) those who have only very little
property to dispose
2. It induces foreigners in this jurisdiction to set down their
last wishes;
3. guaranties the absolute secrecy of the testamentary
disposition because it is not witnessed.
The disadvantages are:
1. does not gauranty testamentary capacity of testator;
2. no protection against vices of consent which may not be
known in case of death;
3. due to faulty expression, it may not express the true will of
the testator;
4. for the same reason, it can be easily concealed.
May a blind testator make a valid holographic will? There is
no question as to notarial wills it being allowed under the law
provided the will was read twice to the testator. As to
holographic wills, it is submitted that it may be allowed. The
testator, having written the holographic will by his own hand,
knows what it contains. He may have learned to write before
he became blind, or inspite of his blindness. This view has
- jann -
 been sustained in Louisiana, where it has been held that
 blindness does not of itself prevent the making of a valid
holographic.
 A HW may be in any form, but the intent to dispose mortis
causa must clearly appear in the context.
 What would be the effect of words written by another and
inserted among the words written by the testator?
1. if insertion was made after execution bu w/o consent, such
is deemed not written;
2. if the insertion was after execution with the consent of
testator, the will remains valid but the insertion void;
3. if insertion was after execution and validated by testator by
his signature, the entire will is void because it is not wholly
 written by the testator himself;
4. if insertion is contemporaneous to the execution the effect
same as no. 3.
 As to date, the day, month, and year on which the will was
made should be indicated therein. The day and the month,
however, may be indicated by implication, so long as the
designation leaves no room for doubt as to exact date.
The validity of the holographic will is defeated by the fact that
part of the date is printed. Such as that written on a daily
planner though the contents are entirely written by the hand
 but the testator relied on the date indicated on the planner,
the same is still extrinsically void.
Signatures of witnesses to a HW will not invalidate the will,
 but will be disregarded as a mere surplusage.
B. Notarial Wiils
1. General Requirements
 Art. 804. Every will must be in writing and executed
in a language or dialect known to the testator. (n)
Our law does not recognize nuncupative wills, which is one
that is not written, but orally declared by the testator in his
last illness, in contemplation of death, and before a sufficient
number of competent witnesses.
The above requirement applies to both holographic and
notarial. In notarial wills it is immaterial who performs the
mechanical act writing the will, so long as the testator signs it
or has somebody sign his name in his presence upon his
direction.
 As to the language or dialect, when a will is executed in a
certain province or locality, in the dialect currently used in
such province or locality, there arises a presumption that the
testator knew the dialect so used, in the absence of contrary
evidence. It is not required that the will express that the
language is known by the testator it is a fact which may be
proved by evidence aliunde.
The attestation clause of an ordinary will does not have to be
written in a language or dialect known to the testator. It is not
28
Wills & Succession/ Atty Uribe
part of the testamentary disposition. The language used in
the attestation clause does not even have to be known to the
witness; it should, however, be translated to them.
Suroza vs. Hon. Honrado
Mauro Suroza, a corporal in the 45th Infantry of the U.S.
 Army (Philippine Scouts), Fort McKinley, married Marcelina
Salvador in 1923 (p. 150, Spec. Proc. No. 7816). They were
childless. They reared a boy named Agapito who used the
surname Suroza and who considered them as his parents as
shown in his 1945 marriage contract with Nenita de Vera (p.
15, Rollo of CA-G.R. No. 08654, p. 148, Rollo of Testate
Case showing that Agapito was 5 years old when Mauro
married Marcelina in 1923).
Mauro died in 1942. Marcelina, as a veteran's widow,
became a pensioner of the Federal Government. That
explains why on her death she had accumulated some cash
in two banks.
 Agapito and Nenita begot a child named Lilia who became a
medical technologist and went abroad. Agapito also became
a soldier. He was disabled and his wife Nenita was appointed
as his guardian in 1953 when he was declared an
incompetent in Special Proceedings No. 1807 of the Court of
First Instance of Rizal, Pasig Branch I (p. 16, Rollo of CA-
G.R. No. 08654-R)
In that connection, it should be noted that a woman named
 Arsenia de la Cruz wanted also to be his guardian in another
proceeding. Arsenia tried to prove that Nenita was living
separately from Agapito and that she (Nenita) admitted to
Marcelina that she was unfaithful to Agapito (pp. 61-63,
Record of testate case)
Judge Bienvenido A. Tan dismissed the second guardianship
proceeding and confirmed Nenita's appointment as guardian
of Agapito (p. 16, Rollo of CA case). Agapito has been
staying in a veteran's hospital in San Francisco or Palo Alto,
California (p. 87, Record)
On a date not indicated in the record, the spouses Antonio
Sy and Hermogena Talan begot a child named Marilyn Sy,
who, when a few days old, was entrusted to Arsenia de la
Cruz (apparently a girl friend of Agapito) and who was later
delivered to Marcelina Salvador Suroza who brought her up
as a supposed daughter of Agapito and as her
granddaughter (pp. 23-26, Rollo of CA-G.R. No. SP-08654-
R). Marilyn used the surname Suroza. She stayed with
Marcelina but was not legally adopted by Agapito. She
married Oscar Medrano and is residing at 7666 J.B. Roxas
Street, Makati, apparently a neighbor of Marina Paje, a
resident of 7668 J.B. Roxas Street.
Marcelina supposedly executed a notarial will in Manila
on July 23, 1973, when she was 73 years old. That will,
which is in English, was thumb marked by her. She was
illiterate. Her letters in English to the Veterans
Administration were also thumb marked by her   (pp. 38-
39, CA Rollo). In that will, Marcelina bequeathed all her
estate to her supposed granddaughter Marilyn.
On April 24, Nenita filed in the testate case an omnibus
petition "to set aside proceedings, admit opposition with
counter-petition of administration and preliminary injunction."
Nenita in that motion reiterated her allegation that Marilyn
- jann -
was a stranger to Marcelina, that the will was not duly
executed and attested, that it was procured by means of
undue influence employed by Marina and Marilyn and that
the thumb marks of the testatrix were procured by fraud or
trick.
 About ten months later, in a verified complaint dated October
12,1978, filed in this Court, Nenita charged Judge Honrado
with having probated the fraudulent will of Marcelina. The
complainant reiterated her contention that the testatrix was
illiterate as shown by the fact that she affixed her thumb mark
to the will and that she did not know English, the language in
which the will was written. (In the decree of probate Judge
Honrado did not make any finding that the will was written in
a language known to the testatrix).
Nenita further alleged that Judge Honrado, in spite of his
knowledge that the testatrix had a son named Agapito (the
testatrix's supposed sole compulsory and legal heir), who
was preterited in the will, did not take into account the
consequences of such a preterition.
We hold that disciplinary action should be taken against
respondent judge for his improper disposition of the testate
case which might have resulted in a miscarriage of justice
because the decedent's legal heirs and not the instituted
heiress in the void will should have inherited the decedent's
estate.
 A judge may be criminally liable for knowingly rendering an
unjust judgment or interlocutory order or rendering a
manifestly unjust judgment or interlocutory order by reason of
inexcusable negligence or ignorance (Arts. 204 to 206,
Revised Penal Code)
In this case, respondent judge, on perusing the will and
noting that it was written in English and was thumb marked
by an obviously illiterate testatrix, could have readily
perceived that the will is void.
In the opening paragraph of the will, it was stated that
English was a language "understood and known" to the
testatrix. But in its concluding paragraph, it was stated that
the will was read to the testatrix "and translated into Filipino
language." (p. 16, Record of testate case) That could only
mean that the will was written in a language not known to the
illiterate testatrix and, therefore, it is void because of the
mandatory provision of Article 804 of the Civil Code that
every will must be executed in a language or dialect known to
the testator. Thus, a will written in English, which was not
known to the Igorot testator, is void and was disallowed
(Acop vs. Piraso, 52 Phil. 660)
The hasty preparation of the will is shown in the attestation
clause and notarial acknowledgment where Marcelina
Salvador Suroza is repeatedly referred to as the "testator"
instead of "testatrix."
Had respondent judge been careful and observant, he could
have noted not only the anomaly as to the language of the
will but also that there was something wrong in instituting the
supposed granddaughter as sole heiress and giving nothing
at all to her supposed father who was still alive. Furthermore,
after the hearing conducted by respondent deputy clerk of
court, respondent judge could have noticed that the notary
was not presented as a witness.
In spite of the absence of an opposition, respondent judge
should have personally conducted the hearing on the probate
29
Wills & Succession/ Atty Uribe
done in the case before us. The subsequent signing and There is citizenship requirement only domicile requirement.
sealing by the notary of his certification that the testament Even aliens may witness as long as they are domiciled here.
was duly acknowledged by the participants therein is no part
of the acknow
acknowled
ledgme
gment
nt itself
itself nor of the testame
testamentar
ntaryy act.
act.  As to conviction of perjury, falsification, and false testimony,
Hence their separate execution out of the presence of the it is presumed that such witness cannot be relied upon fot
testatrix and her witnesses can not be said to violate the rule truthfulness. Conviction for any other crime, however, is not
that testaments should be completed
completed without interruption
interruption a disqualification
(Andal
(Andalis
is vs. Pulgueras
Pulgueras,, 59 Phil.
Phil. 643),
643), or, as the Roman
maxim puts it, "uno eodem die ac tempore in eadem loco",
and no reversible error was committed by the Court in so The notary public before whom the will was acknowledged
holding. It is noteworthy that Article 806 of the new Civil Code cannot act as witness because he cannot acknowledge before
does not contain words requiring that the testator and the himse
himself
lf his having
having signed
signed the will; this cannot
cannot be done
done
witnesses should acknowledge the testament on the same  because it would place him in an inconsistent position and
day or occasion that it was executed. the
the very
very purp
purpos
osee of the
the ackn
acknow
owle
ledge
dgeme
ment
nt,, whic
which
h is to
minimize fraud would be thwarted.
The decision admitting the will to probate is affirmed, with
costs against appellant.  Art. 824. A mere charge on the estate of the testator
for
for the
the paym
paymenentt of debt
debts
s due
due at the time
time of the
the
 Witnesses to a will testator's death does not prevent his creditors from
 being competent witnesses
witnesses to his will. (n)

d. who
who are
are comp
compet
eten
ent?
t?
B: Because This is not a testamentary disposition

 Art. 820. Any person of sound mind and of the age of

Gonzales vs. CA
eighteen years or more, and not bind, deaf or dumb,
and able to read and write, may be a witness to the This is a petition for review of the decision of the Court of
execution of a will mentioned in Article 805 of this  Appeals, First Division, 1 promulgated on May 4, 1973 in
Code. (n) CA-G. R. No. 36523-R which reversed the decision of the
Court of First Instance of Rizal dated December 15, 1964
T: these are witnesses under an ordinary will. and allowed the probate of the last will and testament of the
deceased Isabel Gabriel.
B: Six qualifications of a witness: 1. sound mind; 2. 18 years
of age; 3. not blind, deaf or dumb,; 4. literateor able to read It appears that on June 24, 1961, herein private respondent
and write; domicile in the Philippines;6. not convicted of a Lutgar
Lutgarda
da Santia
Santiago
go filed
filed a petitio
petition
n with
with the Court of First
First
crime involving, falsification, perjury, or false testimony. 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
 Art. 821. The following are disqualified from being
the principal beneficiary and executrix.
 witnesses to a will:
There is no dispute in the records that the late Isabel Andres
(1) Any person not domiciled in the Gabriel died as a widow and without issue in the municipality
Philippines; 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.
1876. It is likewi
likewise
se not contro
controver
verted
ted that
that herein
herein privat
private
e
(2)
(2) Thos
Those e who
who have
have been
been conv
conviicted
cted of respondent Lutgarda Santiago and petitioner Rizalina Gabriel
falsification of a document, perjury or false Gonzal
Gonzales
es are nieces of the deceas
deceased,
ed, and that
that privat
private
e
testimony. (n) respondent, with her husband and children, lived with the
deceased at the latter's residence prior and up to the time of
T: The law requir
requireses that
that the witness
witness be domici
domiciled
led in the her death.
Philippines mere residence is not sufficient. Domicile under
 Art. 50, Art. 50. For the exercise of civil rights and the The petiti
petition
on was oppose
opposed d by Rizali
Rizalina
na Gabrie
Gabriell Gonzal
Gonzales,
es,
fulfillment of civil obligations, the domicile of natural persons herein petitioner, assailing the document purporting to be the
is the place of their habitual residence. (40a) will of the deceased on the following grounds:
From
From this
this judgme
judgmentnt of disall
disallowa
owance
nce,, Lutgar
Lutgarda
da Santia
Santiago
go
Ratio of domicile requirement: appealed to respondent Court, hence, the only issue decided
on appe
appeal
al was
was whet
whethe
herr or not
not the will in ques
questi
tion
on was
was
1. avai
availa
labi
bili
lity
ty of witnes
witnesss when will
will is proba
probate
tedd if the
the execut
executed
ed and attested
attested as requir
required
ed by law.
law. The Court of
same is within the Philippines;  Appeals, upon consideration of the evidence adduced by
2. witness
witness domi
domicil
ciled
ed in the
the Philip
Philippin
pines
es more
more likely
likely to both parties, rendered the decision now under review, holing
know
know the
the test
testat
ator
or and
and be ablr
ablr to test
testif
ify
y on hishis that the will in question was signed and executed by the
mental condition at the time of execution of the will. 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
Except of course if the will was executed in a foreign country the presence of the deceased and of each other as required
the domicile requirement does not apply. by law, 2 hence allowed probate.
Peti
Petiti
tion
oner
er,, in her
her firs
firstt assi
assign
gnme
ment
nt,, cont
conten
ends
ds that
that the
resp
respon
onde
dent
nt Cour
Courtt of Appe
Appealals
s erre
erred
d in hold
holdin
ing
g that
that the
the

- jann - 38
Wills & Succession/ Atty Uribe
docu
documenment,t, Exhib
Exhibitit "F",
"F", was
was execexecute
uted
d and
and atte
atteste
sted d as laid
laid down
down in thethe case
casess cited
cited by peti
petiti
tion
oner
er conc
concer
erni
ning
ng
required by law when there was absolutely no proof that the character
character witnesses
witnesses in naturalizati
naturalization
on proceedings
proceedings are not
three instrumental witnesses were credible witnesses. She applicable to instrumental witnesses to wills executed under
argues that the requirement in Article 806, Civil Code, that the Civil Code of the Philippines.
the witnesses must be credible is an absolute requirement
which must be complied with before an alleged last will and In the case at bar, the finding that each and everyone of the
testa
testamen
mentt may
may be admi admittettedd to prob
probat
ate
e and
and that
that to be a three instrumental witnesses, namely, Matilde Orobia, Celso
credible witness, there must be evidence on record that the Gimpaya and Maria Gimpaya, are competent and credible is
witness has a good standing in his community, or that he is satisf
satisfacto
actoril
rily
y suppor
supported
ted by the evidence
evidence as found
found by the
honest and upright, or reputed to be trustworthy and reliable. respon
responden
dentt Court
Court of Appeal
Appeals,
s, which
which findin
findings
gs of fact
fact this
this
 According to petitioner, unless the qualifications of the Trib
Tribun
unal
al is boun
boundd to acce
accept
pt and
and rely
rely upon
upon.. More
Moreov
over
er,,
witnes
witness s are first
first establ
establish
ished,
ed, his testimo
testimony
ny may not be petitioner has not pointed to any disqualification of any of the
favora
favorably
bly consid
considere
ered.
d. Petiti
Petitione
onerr conten
contendsds that
that the term said witnesses,
witnesses, much less has it been shown that anyone of
"credible"
"credible" is not synonymous
synonymous with "competent" for a witness witness them is below 18 years of age, of unsound mind, deaf or
dumb, or cannot read or write.
may be competent under Article 820 and 821 of the Civil
Code and still not be credible as required by Article 805 of In the strict sense, the competency of a person to be an
the same Code. It is further urged that the term "credible" as instrumental witness to a will is determined by the statute,
used in the Civil Code should receive the same settled and that is Art. 820 and 821, Civil Code, whereas his credibility
well-known meaning it has under the Naturalization Law, the depends on the appreciation of his testimony and arises from
latte
latterr bein
being
g a kindkindrered
d legi
legisl
slat
atio
ion
n with
with the
the Civi
Civill Code
Code the belief and conclusion of the Court that said witness is
provis
provision
ionss on wills
wills with
with respec
respectt to the qualif
qualifica
icatio
tions
ns of telling the truth. Thus, in the case of Vda. de Aroyo v. El
witnesses. Beaterio del Santissimo Rosario de Molo, No. L-22005, May
We find no merit to petitioner's first assignment of error. 3, 1968,
968, thethe Supr
Supre
eme Cour
Courtt hel
held and
and rul
ruled that
that::
 Article 820 of the Civil Code provides the qualifications of a "Competency as a witness is one thing, and it is another to
be a credible witness, so credible that the Court must accept
witness to the execution of wills while Article 821 sets forth
the disqualif
disqualifica
icatio
tion
n from
from being
being a witnes
witness
s to a will.
will. These
These what he says. Trial courts may allow a person to testify as a
 Articles state: witness upon a given matter because he is competent, but
may thereafter decide whether to believe or not to believe his
"Art. 820. Any pe
person of
of so
sound mi
mind an
and of
of testimony."
the age of eighteen years or more, and not blind,
deaf or dumb, and able to read and write, may be a In fine, We state the rule that the instrumental witnesses in
witne
witness
ss to the exec
executi
ution
on of a will
will menti
mention
oned
ed in orde
orderr to be comp compe etent
tent must
must be showshown n to have
have thethe
article 805 of this Code. qualifications under Article 820 of the Civil Code and none of
the disqualifications under Article 821 and for their testimony
"Art.
rt. 821. The following are disqualifie
fied fro
from to be cred
credib
ible
le,, that
that is worth
worthyy of beli
belief
ef and
and enti
entitle
tled
d to
being witnesses to a will: cred
creden
ence
ce,, it is not not mand
mandatator
ory
y that
that evid
eviden
ence
ce be firsfirstt
esta
establ
blis
ishe
hedd on recorecord
rd that
that the witn
witnes
esse
sess have
have a goodgood
(1) Any person not domiciled in the standing in the community or that they are honest and upright
Philippines, or reputed to be trustworthy and reliable, for a person is
(2) Those who have been convicted of presum
presumed ed to be such such unless
unless the contra
contrary
ry is establ
establish
ished
ed
fals
falsif
ific
icat
atio
ion
n of a docu
docume
ment
nt,, perj
perjur
ury
y or fals
false
e otherwise. In other words, the instrumental witnesses must
testimony. be competent and their testimonies must be credible before
the court allows the probate of the will they have attested.
Under the law, there is no mandatory requirement that the We, therefore, reject petitioner's position that it was fatal for
witness testify initially or at any time during the trial as to his respondent
respondent not to have introduced
introduced prior and independent
independent
good
good stan
standi
ding
ng in the the comm
commununit
ity,
y, his
his repu
reputa
tati
tion
on for
for proof of the fact that the witnesses were "credible witnesses",
trus
trustw
twor
orth
thin
ines
esss andand relireliab
able
lene
ness
ss,, hishis hone
honest
sty
y and
and that is, that they have a good standing in the community and
uprightness
uprightness in order that his testimony may be believed and reputed to be trustworthy and reliable.
accepted by the trial court. It is enough that the qualifications
enumerated in Article 820 of the Civil Code are complied Peti
Petiti
tion
oner
er's
's exac
exacer
erba
bati
tion
on cent
center
ers
s on the the supp
suppososed
ed
with, such that the soundness of his mind can be shown by incred
incredibi
ibilit
lity
y of the testimo
testimonie
niess of the witnes
witnesses
ses for the
or deduced from his answers to the questions propounded to proponent of the will, their alleged evasions, inconsistencies
him, that his age (18 years or more) is shown from his and
and cont
contra radi
dict
ctio
ions
ns.. But
But in the
the case
case at bar,
bar, the
the thre
three
e
appearance, testimony, or competently proved otherwise, as instrumental witnesses who constitute the best evidence of
well as the fact that he is not blind, deaf or dumb and that he the will-making have testified in favor of the probate of the
is able to read and write to the satisfaction
satisfaction of the Court, and will. So has the lawyer who prepared it, one learned in the
that he has none of the disqualifications under Article 821 of law and long in the practice thereof, who thereafter notarized
the Civil Code. We reject petitioner's contention that it must it. All of themthem are disinter
disintereste
ested
d witnes
witnesses
ses who stand
stand to
first be established in the record the good standing of the receive no benefit from the testament. The signatures of the
witness in the community, his reputation for trustworthiness witnesses and the testatrix have been identified on the will
and reliableness, his honesty and uprightness, because such and there is no claim whatsoever and by anyone, much less
attributes are presumed of the witness unless the contrary is the petitioner, that they were not genuine. In the last and final
proved otherwise by the opposing party. analysis, the herein conflict is factual and we go back to the
rule that the Supreme Court cannot review and revise the
In probate proceedings, the instrumental witnesses are not findings of facts of the respondent Court of Appeals.
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 e. supe
superv
rveni
ening
ng inco
incomp
mpet
etenc
ency 
y 

- jann - 39
Wills & Succession/ Atty Uribe
 Art. 822. If the witnesses attesting the execution of a T: The reason for the requirement in this article is to make
 will are competent at the time of attesting, their the provisions of the will known to the testator, so that he
 becoming subsequently incompetent shall not may be able to object if they are not in accordance with his
prevent the allowance of the will. (n)  wishes. Failure to comply with this requirement mkes the will
invalid.
B: As in the case of TC the time of execution of the will is the
only relevant temporal
temporal criterion
criterion in the determination
determination of the  An illiterate testator can see the paper and the writing
competence of the witnesses. thereon, but ne cannot understand what is written because he
cannot read it. From the point of view of understanding or
J: competency determined at the time of execution of will and knowin
knowing g the contents
contents of the will, there
there is no differ
difference
ence
not at the time of presentation for probate.  between the illiterate testator and the blind testator.
Therefore,
Therefore, the present
present article
article should
should likewise
likewise apply to an
illiterate testator.
f. Comp
Compet
etenc
ency
y of int
inter
eres
este
ted
d witn
witnes
esse
sess
B: the burden of proof of the compliance of this aticle is is
 Art. 823. If a person attests the execution of a will, to upon the proponent. No requirement that such compliance is
 whom or to whose spouse, or parent, or child, a stated in the will or attestation clause
devise or legacy is given by such will, such devise or
legacy
legacy shall, so far only as concerns
concerns such person, or
spouse, or parent, or child of such person, or any Garcia vs. Vasquez
one
one clai
claimi
ming
ng unde
underr such
such pers
person
on or spou
spouse
se,, or Gliceria Avelino del Rosario died unmarried in the City of
parent, or child, be void, unless there are three other Manila
Manila on 2 Septem
Septemberber 1965,
1965, leavin
leaving g no descen
descenden
dents,
ts,
compet
competent
ent witnes
witnesses
ses to such will.
will. Howeve
However,r, such
such ascendants, brother or sister. At the time of her death, she
person so attesting shall be admitted as a witness as was said to be 90 years old more or less, and possessed of
if such devise or legacy had not been made or given. an estate consisting mostly of real properties.
(n) The petition was opposed separately by several groups of
alleged heirs the latter five groups of persons all claiming to
T: This
This articl
articlee does
does not refer to disqua
disqualif
lifica
icatio
tion
n to be a be relatives of Doña Gliceria within the fifth civil degree. The
 witness, but a disqualification to inherit. The devisee or oppositions
oppositions invariably
invariably charged
charged that the instrument
instrument executed
executed
legatee is not disqualified nor his spouse, parent or child to in 1960 was not intended by the deceased to be her true will;
 be witness as long as he is competent and credible under Art. that the signatures of the deceased appearing in the will was
821 but the devise or legacy, however, shall be void. proc
procur
ured
ed thro
throug
ughh undu
unduee and
and impr
improp
operer pres
pressu
sure
re and
and
influence the part of the beneficiaries and/or other persons;
But if the witness is not a devisee or legatee, but an heir, is that the testatrix did not know the object of her bounty; that
the instit
instituti
ution
on of such
such heir
heir void?
void? Notwit
Notwithst
hstand
anding ing the the instrument itself reveals irregularities in its execution, and
terminology
terminology of the article, we believe
believe that even as instituted
instituted that the formalities required by law for such execution have
heir,
eir, or spouspousse, pare
parent
nt chi
child is disq
disqua
uali
liffied.
ed. The
The not been complied with.
disqualification is intended to to aply to one succeeding by
 will, and it is not material in what concept he succeeds. T his Oppositor Lucio V. Garcia, who also presented for probate
is proved by Art. 1027 par. 4 on relative incapacity which the 1956 will of the deceased, joined the group of Dr. Jaime
makes no distinction between heirs, devisees or legatees. Rosari
Rosario o in regist
registeri
ering
ng opposi
oppositio
tionn to the appoin
appointme
tmentnt of
petitioner
petitioner Consuelo S. Gonzales
Gonzales Vda. de Precilla as special
special
admini
administra
stratri
trix,
x, on the ground
ground that
that the latter
latter posses
possessesses
B: this article pertains more on the capacity to succeed than interest adverse to the estate. After the parties were duly
the capacity to be a witness. The witness will remain as such heard, the probate court, in its order of 2 October 1965,
 but the legacy or devise shall be void. gran
granted
ted peti
petitio
tione
ner'
r's
s pray
prayer
er and
and appo
appoininted
ted her
her spec
specia
iall
administratrix of the estate upon a bond for P30,000.00. The
The disqualification applies only to testamentary disposition . order was premised on the fact the petitioner was managing
if the witness is also entitled to legitime or intestate share this the properties belonging to the estate even during the lifetime
shall not be affected. of the
the dece
deceas ased
ed,, and
and to appo
appoin intt anot
anothe
herr pers
person
on as
admi
admini nistr
strat
ator
or or co admi admini
nistr
strat
ator
or at that
that stag
stage
e of the
3. Specia
Speciall requir
requireme
ements
nts for
for deaf,
deaf, deaf
deaf mute and
and blind
blind proc
proceeeedi
ding
ng woul
wouldd only
only resu
result
lt in furth
further
er conf
confus
usio
ion
n and
and
testators difficulties.

On 25 August 1966, the Court issued an order admitting to

 Art. 807. If the testator be deaf, or a deaf-mute, he probate the 1960 will of Gliceria A. del Rosario (Exhibit "D").
must
must pers
person
onal
ally
ly read
read the
the will
will,, if able
able to do so;
so; In declaring the due execution of the will, the probate court
otherwise,
otherwise, he shall designate
designate two persons
persons to read it took note that no evidence had been presented to establish
and
and comm
commununic
icat
ate
e to him,
him, in some
some prac
practi
tica
cabl
ble
e that the testatrix was not of sound mind when the will was
manner, the contents thereof. (n) executed; that the fact that she had prepared an earlier will
did not, prevent her from executing another one thereafter;
 Art. 808. If the testator
testator is blind, the will
will shall be read that the fact that the 1956 will consisted of 12 pages whereas
to him
him twic
twice;e; once
once,, by one
one of the
the subs
subscr
crib
ibin
ing
g the 1960 testament was contained in one page does not
 witnesses, and again, by the notary public before render
render the latter invalid; that, the erasures
erasures and alterations
alterations in
 whom the will is acknowledged.
acknowledged. (n) the instrument were insignificant to warrant rejection; that the
inco
incons
nsis
isten
tenci
cies
es in the
the testi
testimo
moni
nies
es of the instr
instrum
umen
enta
tall
witnes
witnesses
ses which
which were
were noted
noted by the oppositor
oppositorss are even
even

- jann - 40
Wills & Succession/ Atty Uribe
indicative of their truthfulness. The probate court, also
considering that petitioner had already shown capacity to
administer the properties of the estate and that from the
provisions of the will she stands as the person most
concerned and interested therein, appointed said petitioner
regular administratrix with a bond for P50,000.00. From this
order all the oppositors appealed, the case being docketed in
this Court as G.R. No. L-27200.
Foremost of the questions to be determined here concerns
the correctness of the order allowing the probate of the 1960
will.
The records of the probate proceeding fully establish the fact
that the testatrix, Gliceria A. del Rosario, during her lifetime,
executed two wills: one on 9 June 1956 consisting of 12
pages and written in Spanish, a language that she knew and
spoke, witnessed by Messrs. Antonio Cabrera, Jesus Y.
 Ayala and Valentin Marquez, and acknowledged before
notary public Jose Ayala; and another dated 29 December
1960, consisting of 1 page and written in Tagalog, witnessed
by Messrs. Vicente Rosales, Francisco Decena, and
Francisco Lopez and acknowledged before notary public
Remigio M. Tividad.
Called to testify on the due execution of the 1960 will,
instrumental witnesses Decena, Lopez and Rosales
uniformly declared that they were individually requested by
 Alfonso Precilla (the late husband of petitioner special
administratrix) to witness the execution of the last will of
Doña Gliceria A. del Rosario; that they arrived at the house
of the old lady at No. 2074 Azcarraga, Manila, one after the
other, in the afternoon of 29 December 1960; that the
testatrix at the time was apparently of clear and sound mind,
although she was being aided by Precilla when she walked;
3 that the will, which was already prepared, was first read
"silently" by the testatrix herself before she signed it;
The oppositors-appellants in the present case, however,
challenging the correctness of the probate court's ruling,
maintain that on 29 December 1960 the eyesight of Gliceria
del Rosario was so poor and defective that she could not
have read the provisions of the will, contrary to the
testimonies of witnesses Decena, Lopez and Rosales.
On this point, we find the declarations in court of Dr. Jesus V.
Tamesis very material and illuminating. Said ophthalmologist,
whose expertise was admitted by both parties, testified,
among other things, that when Doña Gliceria del Rosario saw
him for consultation on 11 March 1960 he found her left eye
to have cataract (opaque lens), 15 and that it was "above
normal in pressure", denoting a possible glaucoma, a
disease that leads to blindness 16 As to the conditions of
her right eye
The foregoing testimony of the ophthalmologist who treated
the deceased and, therefore, has first hand knowledge of the
actual condition of her eyesight from August, 1960 up to
1963, fully establish the fact that notwithstanding the
operation and removal of the cataract in her left eye and her
being fitted with aphakic lens (used by cataract patients), her
vision remained mainly for viewing distant objects and not for
reading print. Thus, the conclusion is inescapable that with
the condition of her eyesight in August, 1960, and there is no
evidence that it had improved by 29 December 1960, Gliceria
del Rosario was incapable f reading, and could not have read
the provisions of the will supposedly signed by her on 29
December 1960. It is worth noting that the instrumental
witnesses stated that she read the instrument "silently" (t.s.n.,
pages 164-165). which is a conclusion and not a fact.
- jann -
 Against the background of defective eyesight of the alleged
testatrix, the appearance of the will, Exhibit "D", acquires
striking significance. Upon its face, the testamentary
provisions, the attestation clause and acknowledgment were
crammed together into a single sheet of paper, to much so
that the words had to be written very close on the top, bottom
and two sides of the paper, leaving no margin whatsoever;
the word "and" had to be written by the symbol "&",
apparently to save on space. Plainly, the testament was not
prepared with any regard for the defective vision of Doña
Gliceria. Further, typographical errors like "HULINH" for
"HULING" (last), "Alfonsa" ;or "Alfonso", "MERCRDRS" for
MERCEDES", "instrumental" for "Instrumental", and
"acknowledged" for "acknowledge'', remained uncorrected,
thereby indicating that execution thereof must have been
characterized by haste. It is difficult to understand that so
important a document containing the final disposition of one's
worldly possessions should be embodied in an informal and
untidily written instrument; or that the glaring spelling errors
should have escaped her notice if she had actually retained
the ability to read the purported will and had done so. The
record is thus convincing that the supposed testatrix could
not have physically read or understood the alleged
testament, Exhibit "D", and that its admission to probate was
erroneous and should be reversed.
Thus, for all intents and purpose of the rules on probate, the
deceased Gliceria del Rosario was, as appellant oppositors
contend, not unlike a blind testator, and the due execution of
her will would have required observance of the provisions of
 Article 808 of the Civil Code.
"ART. 808. If the testator is blind, the
will shall be read to him twice; once, by
one of the subscribing witnesses, and
again, by the notary public before whom
the will is acknowledged."
The rationale behind the requirement of reading the will to
the testator if he is blind or incapable of reading the will
himself (as when he is illiterate), 18 is to make the
provisions thereof known to him, so that he may be able to
object if they are not in accordance with his wishes. That the
aim of the law is to insure that the dispositions of the will are
properly communicated to and understood by the
handicapped testator, thus making them truly reflective of his
desire, is evidenced by the requirement that the will should
be read to the latter, not only once but twice, by two different
persons, and that the witnesses have to act within the range
of his (the testator's) other senses. 19
In connection with the will here in question, there is nothing in
the records to show that the above requisites have been
complied with. Clearly, as already stated, the 1960 will
sought to be probated suffers from infirmity that affects its
due execution.
On the matter of lis pendens (G.R. No. L-26864), the
provisions of the Rules of Court are clear: notice of the
pendency of an action may be recorded in the office of the
register of deeds of the province in which the property is
situated, if the action affects "the title or the right of
possession of (such) real property." 23 In the case at bar,
the pending action which oppositors seek to annotate in the
records of TCT Nos. 81735, 81736, and 81737 is the
mandamus proceeding filed in this Court (G.R. No. L-26615).
41
Wills & Succession/ Atty Uribe
 As previously discussed in this opinion, however, that case is
concerned merely with the correctness of the denial by the
probate court of the motion for the removal of Consuelo
Gonzales Vda. de Precilla as special administratrix of the
estate of the late Gliceria del Rosario. In short, the issue in
controversy there is simply the fitness or unfitness of said
special administratrix to continue holding the trust; it does not
involve or affect at all the title to, or possession of, the
properties covered by said TCT Nos. 81735, 81736 and
81737. Clearly, the pendency of such case (L-26615) is not
an action that can properly be annotated in the record of the
titles to the properties.
FOR THE FOREGOING REASONS, the order of the court
below allowing to probate the alleged 1960 will of Gliceria A.
del Rosario is hereby reversed and set aside.
4. Substantial compliance
 Art. 809. In the absence of bad faith, forgery, or
fraud, or undue and improper pressure and
influence, defects and imperfections in the form of
attestation or in the language used therein shall not
render the will invalid if it is proved that the will was
in fact executed and attested in substantial
compliance with all the requirements of Article 805.
T: The law on formal requirements of a will should be
liberally construed; while perfection in drafting is desirable,
unsubstantial departures should be ignored, as long as the
possibility of fraud and bad faith are obviated.
There are many people who are fluent and have a graet
mastery of grammar. Thus, grammatical errors which may be
noted from the general tenor of the attestation clause must,
therefore, be overlooked or corrected by construction, so as
not to frustrate the recognized intention of those who
intervened in the execution thereof. Where it appears from
the context of the attestation that certain words were
ommtied inadvertently, the court may supply the omission.
It is sufficient if from the language employed it can be
reasonably deduced that the attestation clause fulfills what
the law expects of it. Hence, an attestation clause will be held
sufficient, notwithstanding some imperfections in the
grammatical constructions, where it is evident that the defect
is due to carelessness of the clerk or to lac of mastery of the
language, if the meaning sought to be conveyed can be
determined from the clause itself.
Furthermore, the whole language of the attestation clause
must be taken together to determine whether the testaor
complied with the law.
The substantial compliance rule has been applied to such
extent as to allow the attestation clause to be contained in the
 body of the will itself and not a separate portion therein,
expressed in the first preson as a recital of the testator,
provided that it is also signed by the three instrumental
 witnesses.
Justice JBL Reyes’ criticism of this article is enlightening:
- jann -
The rule here is so broad that no matter how imperfect the
attestation clause happens to be, the same could be cured by
evidence aliunde. It thus renders the attestation of no value
in protecting fraud or really defective execution. The rule
must be limited to disregarding those defects that can be
supplied by an examination of the will itself:
1. Whether all the pages are consecutively numbered;
2. W signature appears in each page;
3. W the subscribing witnesses are three
4. W the will is notarized
 All these are facts that the will itself can reveal, and defects or
even omissions concerning them in the attestation clause can
 be safely disregarded. But the total number of pages, and
 whether all persons required to sign did so in the number of
pages, and whether all 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 probate
proceedings.
C. Holographic Wills
1. General requirements.
 Art. 804. Every will must be in writing and executed
in a language or dialect known to the testator. (n)
Our law does not recognize nuncupative wills, which is one
that is not written, but orally declared by the testator in his
last illness, in contemplation of death, and before a sufficient
number of competent witnesses.
The above requirement applies to both holographic and
notarial. In notarial wills it is immaterial who performs the
mechanical act writing the will, so long as the testator signs it
or has somebody sign his name in his presence upon his
direction.
 As to the language or dialect, when a will is executed in a
certain province or locality, in the dialect currently usd in such
province or locality, there arises a presumption that the
testator knew the dialect so used, in the absence of contrary
evidence. It is not required that the will express that the
language is known by the testator it is a fact which may be
proved by evidence aliunde.
The attestation clause of an ordinary will does not have to be
written in a language or dialect known to the testator. It is not
part of the testamentary disposition. The language used in
the attestation clause does not even have to be known to the
witness; it should, however, be translated to them.
 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. (678, 688a)
 T: the following are the advantages of a holographic will:
1. simple and easy to make for those a) who have no means to
employ a lawyer, b)who are timid and wants to reread their
 wills before signing, c) those who have only very little
property to dispose
42
Wills & Succession/ Atty Uribe
2. It induces foreigners in this jurisdiction to set down their
last wishes;
3. guaranties the absolute secrecy of the testamentary
disposition because it is not witnessed.
The disadvantages are:
1. does not gauranty testamentary capacity of testator;
2. no protection against vices of consent which may not be
known in case of death;
3. due to faulty expression, it may not express the true will of
the testator;
4. for the same reason, it can be easily concealed.
JBL Reyes criticizes this form of a will:
 A holographic wills are peculiarly dangerous in case of
persons who have written very little. The validity of these
 wills depends exclusively on the authenticity of the
handwriting, and if writing standards are not procurable, or
not contemporaneous, the courts are left to the mercy of the
mendacity of witnesses.
Its simplicity is an invitation to forgery, since the text may be
extremely short. If we want to permit the testator to keep his
 wishes secret in order to avoid importunity, it can be done on
the basis of the closed will. (tstamento cerrado)
May a blind testator make a valid holographic will? There is
no question as to notarial wills it being allowed under the law
provided the will was read twice to the testator. As to
holographic wills, it is submitted that it may be allowed. The
testator, having written the holographic will by his own hand,
knows what it contains. He may have learned to write before
he became blind, or inspite of his blindness. This view has
 been sustained in Louisiana, where it has been held that
 blindness does not of itself prevent the making of a valid
holographic.
 A HW may be in any form, but the intent to dispose mortis
causa must clearly appear in the context.
 What would be the effect of words written by another and
inserted among the words written by the testator?
1. if insertion was made after execution bu w/o consent, such
is deemed not written;
2. if the insertion was after execution with the consent of
testator, the will remains valid but the insertion void;
3. if insertion was after execution and validated by testator by
his signature, the entire will is void because it is not wholly
 written by the testator himself;
4. if insertion is contemporaneous to the execution the effect
same as no. 3.
- jann -
 As to date, the day, month, and year on which the will was
made should be indicated therein. The day and the
month,however, may be indicated by implication, so long as
the designation leaves no room for doubt as to exact date.
The validity of the holographic will is defeated by the fact that
part of the date is printed. Such as that written on a daily
planner though the contents are entirely written by the hand
 but the testator relied on the date indicated on the planner,
the same is still extrinsically void.
Signatures of witnesses to a HW will not invalidate the will,
 but will be disregarded as a mere surplusage.
 A person can make a HW in the form of a letter in which he
states his testamentary dispositions giving it a character of a
 will but the animus testatandi must be present.
Inaccuracy of the date due to involuntary error, or
inadvertence, the testator being in good faith, the court may
allow proof of the true date, provided such proof even
extrinsic can have a basis in the will itself.
The signature of the testator in HW is not the simple writing
of the name and surname of the testator. It is his name
 written by him in his usual and habitual manner.
Under our law, the signature musr be at the end of the will.
Thus can be inferred from article 812 by the reference to
dispositions “written below his signature” this phrase implies
that the signature is at the end of the will and any disposition
 below it must be further signed and dated.
 Art. 812. In holographic wills, the dispositions of the
testator written below his signature must be dated
and signed by him in order to make them valid as
testamentary dispositions. (n)
T: the dispositions written below the testator’s dignature to
the will are considered as independent of the will itself;
hence, they must be signed and d ated by the testator. If one is
not dated, even irf signed, that particular disposition will be
 void, without affecting the validity of others or of the will
itself. And an unsigned and undated postscript to a
holographic will is invalid as to testamentary disposition.
 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 a date,
such date validates the dispositions preceding it,
 whatever be the time of prior dispositions. (n)
B: Thus, in case of several additional dispositions the
additional ones before the last are dated but unsigned, only
the last will be valid provided the last is dated and signed.
Roxas vs. De Jesus
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-will 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
43
Wills & Succession/ Atty Uribe
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.
From that Order, GREGORIO moved for reconsideration
arguing that since the alterations and/or insertions were
made by 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
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. 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. WHEREFORE, this Petition is
hereby dismissed and the Decision of respondent Judge,
dated September 3, 1973, is hereby affirmed in toto. No
costs
V. INCORPORATION OF DOCUMENT BY REFERENCE
 Art. 827. If a will, executed as required by this Code,
incorporates into itself by reference any document
or paper, such document or paper shall not be
considered a part of the will unless the following
requisites are present:
(1) The document or paper referred to in the
 will must be in existence at the time of the
execution of the will;
- jann -
(2) The will must clearly describe and
identify the same, stating among other
things the number of pages thereof;
(3) It must be identified by clear and
satisfactory proof as the document or paper
referred to therein; and
(4) It must be signed by the testator and the
 witnesses on each and every page, except in
case of voluminous books of account or
inventories. (n)
Incorporation by reference is an exception to the rule that if
an instrument is not executed with all the formalities of a will
it cannot be admitted to probate. If a will duly executed and
witnessed according to the requirements of the statute,
incorporates in itself by reference any document or paper not
so executed and witnessed, whether such paper referred to
be in the form of a will or codicil, or of a deed or indenture, or
of a mere list or memorandum, the paper so referred to, if it
was in existence at the time of the execution of the will and is
identified by clear and satisfactory proof as the paper
referred to therein, will take effect as part of the will and be
admitted to probate as such.
To establish a separate writing as part of the will it must
appear on its face the ff:
1. there must be distinct reference to such writing, so
explicit as to identify it beyond doubt, less is
sufficient, including parol evidence received.
2. the reference must indicate the writing as already
existing;
3. it can only be given effect to the extent that it
appears prima facie to have been the wish of the
testator.
The following must likewise be shown by extrinsic proof:
1. that it is the very writing referred to in the will;
2. that it was in fact made before will was executed
B: This article refers to such documents as inventories,
books of account, documents of titile, and papers of similar
nature; the docs should under no circumstances, make
testamentary dispositions because formal requirements of
wills may be circumvented.
Can holographic wills incorporate documents by refernce?
It depends. No, because par. 4 of this article requires a
witness to sign on every page except voluminous docs. Only
ordinary wills requires witnesses unless of course a HW is
executed with witnesses superfluously.
VI. CODICIL
A. Definitions and Solemnities
 Art. 825. A codicil is supplement or addition to a
 will, made after the execution of a will and annexed
to be taken as a part thereof, by which disposition
made in the original will is explained, added to, or
altered. (n)
45
Wills & Succession/ Atty Uribe
 Art. 826. In order that a codicil may be effective, it
shall be executed as in the case of a will. (n)
T: After a testator has already made a will, a subsequent
instrument mortis causa may either be a codicil or a new will.
If the subsequent instrument explains the original will, or
alters, or adds to it, then it is a codicil. But if the later
instrument makes dispositions independent of those in the
original will, then it is a new will, not a codicil. A codicil is
always related to some prior will.
B: The distinctions, however, is purely academic because
 Article 826 requires the codicil to be in the form of a will
anyway.
Must the codicil conform to the form of the will to which it
refers?
The law does not require this. Thus, an attested will may
have a holographic codicil; a holographic will may have an
attested codicil. Needles to say, of course, the forms of the
will and the codicil may concur.
VII. REVOCATION OF WILLS AND TESTAMENTARY
DISPOSITIONS
 A. Definitions of revocation
Revocation is an act of the mind, terminating the potential
capacity of the will to operate at the death of the testator,
manifested by some outward and visible act or sign, symbolic
thereof.
Revocation is the recall of some power, authority, or a thing
granted or a destroying or making void of some deed that
had existence until the act of revocation made it void.
(Black’s Law Dictionary)
 Art. 828. A will may be revoked by the testator at any
time before his death. Any waiver or restriction of
this right is void. (737a)
T: During the life of the testator the will is said to be
ambulatory and may be altered, revoked, or superseded at
any time. Its is of no possible effect as a will while the maker
lives.
 A will may be revoked at pleasure. Revocation is an act of
the mind, terminating the potential capacity of the will to
operate at the death of the testator, manifested by some
outward and visible act or sign, symbolic thereof.
Revocation vs. Nullity
1. act of testator 1. proceeds from law
2. presupposes a valid act 2. inherent from the will
3. inter vivos 3. invoked After death
4. testator cannot renounce 4. can be disregarded by heirs
B: This characteristic is consistent with the principle laid
down in Art. 777, successional rights vest only upon death.
C. Law Governing revocation
- jann -
 Art. 829. A revocation done outside the Philippines,
 by a person who does not have his domicile in this
country, is valid when it is done according to the law
of the place where the will was made, or according to
the law of the place in which the testator had his
domicile at the time; and if the revocation takes
place in this country, when it is in accordance with
the provisions of this Code. (n)
Rules for revocation:
 A. if revocation in the Phil. Follow local laws
B. if outside the Phil.
1. testator not domiciled in the Phil
a) follow law of the place where will was
made, or
 b) follow law of the domicile of testator at
time of revocation
2. testator domiciled in the Phil. Art. 829 not
applicable:
a) follow Phil. Law- domiciliary principle, or
 b) follow law of place of revocation- lex loci
celebrationis, or
c) follow law of the place where will was made
( by analogy with Art. 829)
D. Modes of Revocation
 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. (n)
There is revocation by implication of law when certain acts or
events take place subsequent to making of a will, which
nullify or render inoperative either the will itself or some
testamentary disposition therein. Examples are the ff:
1. act of unworthiness by an heir, devisee, or legatee under
 Art. 1032;
46
Wills & Succession/ Atty Uribe
2. transformation, alienation or loss of the thing devised or
legacy after execution of will (art. 957);
3. Judicial demand by the testator of a credit given as legacy
art. 936;
4. preterition of compulsory heirs article 854;
5. sale of property given as devise or legacy for the payment
of the debts of the testator.
Enumeration is not exclusive.
Subsequent Instrument
 A subsequent will containing a clause revoking a previous
will should possess all the requisites of a will, whether it be
an ordinary or holographic will, and should be probated,in
order that the revocatory clause may produce the effect of
revoking the previous will.
Destruction of a will
1. the testator must at the time or
revocation be of sound mind. The same degree
of mental capacity is required to revoke a will
as to make one;
2. the burning, tearing, canceling, or
obliteration of the will must be done with animo
revocandi and must actually be carried out. The
mental process or intent to revoke must concur
with the physical fact or actual destruction of
the will;
where a testatrix was about to burn a will in an envelope, with
the intention of revoking it, but a third person fraudulently
replced the will inside thought he testatrix believed the will
was destroyed, still no revocation occurred. However, if the
third person is a devisee or legatee who prevents the
revocation by threats, fraud or violence, the will is revoked as
to him, by implication of law on the ground of unworthiness.
Third person may revoke a will if the same was done in the
presence of and by the express direction of the testator.
In cases where the destruction is unauthorized, there is no
revocation, and the contents of the will may be preoved by
secondary evidence.
If the will was already partly burned or torn but was only
saved upon the interference of a third person the will is still
deemed revoked as long as the testator intended to. No
matter how large or small the extent of the damage to the will
even if the same is still legible, the same is still deemed
revoked for all intents and purposes. This case is to be
differentiated from the will that was replaced because here
the actual will itself has commenced destruction.
Gago vs. Mamuyac
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
- jann -
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.
"That Exhibit A is a mere carbon copy of its original which
remained in the possession of the deceased testator Miguel
Mamuyac, who revoked it before his death as per testimony
of witnesses Jose Fenoy, who typed the will of the testator on
 April 16, 1919, and Carlos Bejar, who saw on December 30,
1920, the original of 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 of 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.
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 the 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 or
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.
47
Wills & Succession/ Atty Uribe
parties, the other is induced to enter into a contract
 which, without them, he would not have agreed to.
(1269)
T: A will void as to form does not transmit property. But it
can give rise to a natural obligation; so that even if a legatee
named therein cannot legally claim the legacy, the voluntary
delivery thereof by the intestate heir is valid.
Is a will executed by virtue of fraud upon testator susceptible
of ratification?
T: We submit that this conclusion overlooks the difference
 between the law on wills and the law on contracts. In the law
on contracts, fraud merely makes the contract voidable; while
in the law on wills, fraud is a ground for the disallowance of
the will, that is, it renders the will void ab initio. There is
nothing in the law on wills which allows implied confirmation
or ratification of a void will, while there are provsions
allowing it in the law on contracts.
However, the fact that the testOR did nor revoke his will after
knowledge of the alleged fraud may be evidence against the
existence of fraud.
Pascual vs. Dela Cruz
On 2 January 1960, Catalina de la Cruz, single and without
any surviving descendant or ascendant, died at the age of 89
in her residence at San Roque, Navotas, Rizal. On 14
January 1960, a petition for the probate of her alleged will
was filed in the Court of First Instance of Rizal by Andres
Pascual, who was named in the said will as executor and
sole heir of the decedent. 1
Opposing the petition, Pedro de la Cruz and 26 other
nephews and nieces of the late Catalina de la Cruz contested
the validity of the will on the grounds that the formalities
required by law were not complied with; that the testatrix was
mentally incapable of disposing of her properties by will at
the time of its execution; that the will was procured by undue
and improper pressure and influence on the part of the
petitioner; and that the signature of the testatrix was obtained
through fraud.
After hearing, during which the parties presented their
respective evidences, the probate court rendered judgment
upholding the due execution of the will, and, as therein
provided, appointed petitioner Andres Pascual executor and
administrator of the estate of the late Catalina de la Cruz
without bond. The oppositors appealed directly to the Court,
the properties involved being valued at more than
P300,000.00, raising only the issue of the due execution of
the will.
In this instance, oppositors-appellees claim that the
lower court erred in giving credence to the testimonies of the
subscribing witnesses and the notary that the will was duly
executed, notwithstanding the existence of inconsistencies
and contradictions in the testimonies, and in disregarding
their evidence that the will was not signed by all the
witnesses in the presence of one another, in violation of the
requirement of the law.
In this jurisdiction, it is the observed rule that, where a
will is contested, the subscribing with are generally regarded
as the best qualified to testify on its due execution. However,
it is similarly recognized that for the testimony of such
- jann -
witnesses to be entitled to full credit, it must be reasonable
and unbiased, and not overcome by competent evidence,
direct or circumstantial. 2 For it must be remembered that the
law does not simply require the presence of three
instrumental witnesses; it demands that the witnesses be
credible. 3
In connection with the issue under consideration, we
agree with the trial judge that the contradictions and
inconsistencies appearing in the testimonies of the witnesses
and the notary, pointed out by the oppositors-appellants
(such as the weather condition at the time the will was
executed; the sequence of the signing by the witnesses; and
the length of time it took to complete the act), relate to
unimportant details of the impressions of the witnesses about
certain details which could have been affected by the lapse
of time and the treachery of human memory, and which
inconsistencies, by themselves, would not alter the probative
value of their testimonies on the due execution of the will [cf.
Peo. vs. Sigue, 86 Phil. 139-140 (3 years interval)].
Not having heard Jiongco testify, this court is not in a position
to contradict the appreciation of the trial court that the voice
in the tape recording was not really that of Jiongco. And
considering that he denied that fact under oath, that the tape
recording was not supported by truly impartial evidence, and
was done without the knowledge of the witness, we cannot
see our way clear to rule that Jiongco has been successfully
impeached, and shown guilty of false testimony. It would be
dangerous to rule otherwise.
The second point that renders incredible the alleged
assertion of Jiongco in the tape recording, that he signed the
testament only in 1958 or 1959, is that in the Notarial
Registry of the notary, Gatdula, the ratification of the
testament appears among the entries for 1954, as well as in
the corresponding copies (Exhibit I) filed by him with
Bonifacio Sumulong, the employee in charge of the Notarial
Section of the Clerk of Court's office, who produced them at
the trial upon subpoena, and who testified to his having
searched for and found them in the vaults of the Clerk of
Court's office. No evidence exists that these documents were
not surrendered and filed at the Clerk of Court's office, as
required by law, and in the regular course of official duty.
Certainly, the notary could not have reported in 1954 what
did not happen until 1958.
In view of the evidence, we do not feel justified in
concluding that the trial court erred in accepting the
concordant testimony of the instrumental witnesses as
warranting the probate of the will in question, taking into
account the unexcelled opportunity of the court a quo to
observe the demeanor, and judge the credibility, of the
witness thereby. Furthermore, it would not be the first time in
this jurisdiction that a will has been admitted to probate even
if the instrumental witness testified contrary to the other two,
provided the court is satisfied, as in this case, that the will
was executed and attested in the manner provided by law
(Fernandez vs. Tantoco, 49 Phil. 380; Tolentino vs.
Francisco, 57 Phil. 742; Cuyugan vs. Baron, 69 Phil. 639;
Ramirez vs. Butte, 100 Phil 635). There is greater reason to
admit the will to probate where only the testimony of one
witness is subjected to serious, if unsuccessful attack.
Contestants further assail the admission to probate on
the ground that the execution of the will was tainted by fraud
and undue influence exerted by proponent on the testarix,
and affirm that it was error for the lower court to have
63
Wills & Succession/ Atty Uribe
rejected their claim. Said the court in this regard (Record on
 Appeal, page 87):
Before considering the correctness of these findings, it is
worthwhile to recall the basic principles on undue pressure
and influence as laid down by the jurisprudence of this Court:
that to be sufficient to avoid a will, the influence exerted
must be of a kind that so overpowers and subjugates the
mind of the testator as to destroy his free agency and
make him express the will of another rather than his own
(Coso vs. Fernandez Deza, 42 Phil. 596; Icasiano vs.
Icasiano, L-18979, 30 June 1964; Teotico vs. Del Val, L-
18753, 26 March 196); that the contention that a will was
obtained by undue influence or improper pressure cannot be
sustained on mere conjecture or suspicion, as it is enough
that there was opportunity to exercise undue influence, or a
possibility that it may have been exercised (Ozaeta vs.
Cuartero, L-5597, 31 May 1956); that the exercise of
improper pressure and undue influence must be supported
by substantial evidence that it was actually exercised
(Ozatea vs. Cuartero, ante; Teotico vs. Del Val, L-18753, 26
March 1965); that the burden is on the person challenging
the will to show that such influence was exerted at the time of
its execution (Teotico vs. Del Val, ante); that mere general or
reasonable influence is not sufficient to invalidate a will (Coso
vs. Fernandez Deza, ante); nor is moderate and reasonable
solicitation and entreaty addressed to the testator (Barreto
vs. Reyes, L-5831-31, 31 January 1956), or omission of
relatives, not forced heirs, evidence of undue influence
(Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronel, 45 Phil.
416).
Tested against these rulings, the circumstances
marshalled by the contestants certainly fail to establish actual
undue influence or improper pressure exercised on the
testarix by the proponent. Their main reliance is on the
assertion of the latter, in the course of his testimony, that the
deceased "did not like to sign anything unless I knew it"
(t.s.n., page 7, 27 January 1962), which does not amount to
proof that she would sign anything that proponent desired.
On the contrary, the evidence of contestants-appellants, that
proponent purchased a building in Manila for the testarix,
placed the title in his name, but caused the name "Catalina
de la Cruz" to be painted thereon in bold letters to mislead
the deceased, even if true, demonstrates that proponent's
influence was not such as to overpower to destroy the free
will of the testarix. Because if the mind of the latter were
really subjugated by him to the extent pictured by the
contestants, then proponent had no need to recourse to
the deception averred.lawphi1.� et 
Nor is the fact that it was proponent, and not the
testarix, who asked Dr. Sanchez to be one of the
instrumental witnesses evidence of such undue influence, for
the reason that the rheumetism of the testarix made it difficult
for her to look for all the witnesses. That she did not resort to
relatives or friends is, likewise explainable: it would have
meant the disclosure of the terms of her will to those
interested in her succession but who were not favored by
her, thereby exposing her to unpleasant importunity and
recriminations that an aged person would naturally seek to
avoid. The natural desire to keep the making of a will secret
can, likewise, account for the failure to probate the testament
during her lifetime.
We conclude that the trial court committed no error in
finding the appellant's evidence established at most grounds
for suspicion but fell far short of establishing actual exercise
of improper pressure or influence. Considering that testarix
- jann -
considered proponent as her own son, to the extent that she
expressed no objection to his being made the sole heir of her
sister, Florentina Cruz, in derogation of her own rights, we
find nothing abnormalin her instituting proponent also as her
own beneficiary. As stated by the Court in the Knutson case
�
The truth of the matter is that bequests and devises to those
in whom the testator has confidence and who have won his
affection are more likely to be free from undue influence that
bequests or devises to others. (In re Knutson's Will, 41 Pac.
2d 793). Appellants invoked presumption of undue influence
held to exist by American authorities where the beneficiary
participates in the drafting of execution of the will favoring
him; but since the will was prepared by Atty. Pascual,
although nephew of the proponent, we do not think the
presumption applies; for in the normal course of events, said
attorney would follow the instructions of the testatrix; and a
member of the bar in good standing may not be convicted of
unprofessional conduct, or of having conspired to falsify a
statement, except upon clear proof.
The charge of fraud, being premised on the existence
of undue influence, needs no separate discussion.
WHEREFORE, the decree of probate appealed from is
affirmed;
XI. LEGITIME
 A. Concept.
 Art. 886. Legitime is that part of the testator's
property which he cannot dispose of because the law
has reserved it for certain heirs who are, therefore,
called compulsory heirs. (806)
Three principal systems of distribution of hereditary property:
1. Absolute freedom of disposition
2. Total reservation
3. Partial reservation
T: Considering the customs and traditions of the Filipinos for
the sake of family solidarity, the present code preserved the
system of legitimes. However, changes have been made as
follows:
1. with respect to the amounts of that coumpulsory heirs
receive;
2. illegitimate children have been made compulsory heirs
though with a smaller legitime;
3. legitime of surviving spouse has been changed from a
mere usufruct to a full ownership.
4. eliminates the mejora which resulted in the increase of
both the legitime and the free portion
Thus, Justice JBL Reyes has this to say:
The increase of the legitime to ½ as against the 1/3 in the old
code, and the suppression of the mejora, operate to limit the
freedom of choice of the testator to a greater extent than
under the old code, for the testator, under that law, could at
least select the individual descendants who should receive
the third betterment.
Jurisprudence, however, interpreted the ultimate purpose of
the systems of legitime. It is a limitation upon the freedom of
the testator to dispose of his property. Its purpose is to
protect those heirs, for whom the testator is presumed to
64
Wills & Succession/ Atty Uribe
have an obligation to reserve certain portions of his estate,
from his unjust ire or weakness or thoughtlessness.
Ratio of the free portion:
1. An owner’s jus disponendi
2. man as a member of society can entertain not only
familial affections, but also legitimate affections to
his fellowmen, thus, should not be absolutely be
restrained from disposing property according to
dictates of generosity.
The legitime does not consist in determinate or specific
property which the testator must reserve for his compulsory
heirs. It consists of a part of fraction of the entire mass of the
hereditary estate. The standard for determination is fixed by
law, but quantity may vary according to number and relation
of the heirs to the testator.
B. Who are entitled?
 Art. 887. The following are compulsory heirs:
(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.
Compulsory heirs mentioned in Nos. 3, 4, and 5 are
not excluded by those in Nos. 1 and 2; neither do they
exclude one another.
In all cases of illegitimate children, their filiation
must be duly proved.
The father or mother of illegitimate children of the
three classes mentioned, shall inherit from them in
the manner and to the extent established by this
Code. (807a)
Compulsory heirs are those who succeed whether the testator
likes it or not and they cannot be deprived of their legitime
except only by disinheritance.
 An heir, of whatever class is absolutely free to accept or
renounce the inheritance because the law on legitime is a
restriction not on the freedom of the heir to accept or
repudiate, but on the freedom of testator to dispose of his
property.
Kinds of Compulsory heirs:
- jann -
1. Primary – those who exclude other compulsory
heirs ex. Legit children & ascendants
2. secondary – succeed only in the absence of the
primary. ex. Legit parents & ascenadants
3. Concurring – succeed together with the primary and
secondary cannot be excluded by them. Ex.
 Widow/er & illegit children
Legitimate children and ascendants  – in the ordinary
course of nature father or mother die ahead of the child; the
law confers preferential legitimary rights upon them. Thus
the law intends that property of the decedent pass not to
strangers but to his natural successor.
Legitimated Children – the NCC is silent as to this kind of
children but the Family code under Art. 272 grants the same
rights to legitimated as that of the legitimate. Hence they are
included as a compulsory heir.
 Adopted Children – Art. 189 of the FC provides that for
civil purposes, the adopted shall be deemed a legitimate child
of the adopters and both shall acquire reciprocal rights and
obligations from a parent-child relationship. Hence,
considered as legitimate child of the deceased adopting
parent both as CH and LH.
Illegitimate Parents – they are compulsory heirs only in
the absence of legitimate, or illegitimate children of the
decedent as provided under Art. 903.
 Adopting parents – they are not compulsory heirs of the
adopted child because Art. 190 of the FC only provides that
they shall be legal heirs of the deceased adopted and is silent
as to their becoming compulsory heir. This indicates that the
latter was not intended.
Ratio: Adoption is for the benefit of the adopted, and unless
the law clearly intends to favor the adopter, all doubts should
 be resolved against him. Because of the silence of the law on
legitimes, he cannot be entitiled to the legitime of the
legitimate parents; and in the law of testacy , he is not given,
in general, the same rights as a legitimate parent but only
such as are specifically provided in Article 190 of the FC.
Legitimes of CH are restrictions on the freedom of the
testator and must not be presumed but viewed strictly.
Illegitimate Children – the FC abolished the distinctions
in the old civil code thus merging them to one group.
Social and humanitarian reasons justify this grant of rights.
These children are brought to the world without their fault
and under circumstances beyond their control. To leave
illegitimate children w/o successional rights not only weighs
them down with the moral handicap of their status but also
denies them the material assistance which they may need
after their parent’s death so as not to become social burdens.
They are not required to be recognized by putative parents
 but must only prove their filiation.
In the enforcement of this new right it is the death of the
parent which determines the right of the child to succeed and
not the birth of the latter.
65
Wills & Succession/ Atty Uribe
equivalent to that legitime, then he cannot ask for more
unless, the testator provides it as addition to his legitime.
 Art. 893. If the testator leaves no legitimate
descendants, but leaves legitimate ascendants, the
surviving spouse shall have a right to one-fourth of
the hereditary estate.
This fourth shall be taken from the free portion of
the estate. (836a)
 Art. 894. If the testator leaves illegitimate children,
the surviving spouse shall be entitled to one-third of
the hereditary estate of the deceased and the
illegitimate children to another third. The remaining
third shall be at the free disposal of the testator. (n)
 Art. 895. The legitime of each of the acknowledged
natural children and each of the natural children by
legal fiction shall consist of one-half of the legitime
of each of the legitimate children or descendants.
The legitime of an illegitimate child who is neither
an acknowledged natural, nor a natural child by
legal fiction, shall be equal in every case to four-
fifths of the legitime of an acknowledged natural
child.
The legitime of the illegitimate children shall be
taken from the portion of the estate at the free
disposal of the testator, provided that in no case
shall the total legitime of such illegitimate children
exceed that free portion, and that the legitime of the
surviving spouse must first be fully satisfied. (840a)
 Article repealed by Article 176 of the Family Code which
provides that the legitime of each illegitimate children is one-
half of that of legitimate child.
Ratio: the law rewards more the fruits of legal unions, thus,
giving preference and greater portion of the hereditary estate.
However, for humanitarian reasons the illegitimate children
should not be disregarded because they are just as innocent
and blameless as the legitimate children for being born in this
 world beyond their control.
Limitations to the rights of Legitimate children:
1. filiation must be proved
2. their share comes only from the free portion
3. surviving spouse is preferred over them, the legitme of
the spouse is satisfied first
4. their share is susceptible of proportionate reduction if
their total legitimes exceeds the free portion
 Art. 896. Illegitimate children who may survive with
legitimate parents or ascendants of the deceased
shall be entitled to one-fourth of the hereditary
estate to be taken from the portion at the free
disposal of the testator. (841a)
 Art. 897. When the widow or widower survives with
legitimate children or descendants, and
- jann -
acknowledged natural children, or natural children
 by legal fiction, such surviving spouse shall be
entitled to a portion equal to the legitime of each of
the legitimate children which must be taken from
that part of the estate which the testator can freely
dispose of. (n)
 Art. 898. If the widow or widower survives with
legitimate children or descendants, and with
illegitimate children other than acknowledged
natural, or natural children by legal fiction, the
share of the surviving spouse shall be the same as
that provided in the preceding article. (n)
The Family Code has already abolished the distinction
 between natural and other illegitimate children placing them
under one category of illegitimate children.
 Art. 899. When the widow or widower survives with
legitimate parents or ascendants and with
illegitimate children, such surviving spouse shall be
entitled to one-eighth of the hereditary estate of the
deceased which must be taken from the free portion,
and the illegitimate children shall be entitled to one-
fourth of the estate which shall be taken also from
the disposable portion. The testator may freely
dispose of the remaining one-eighth of the estate. (n)
T: This seems to be an unjustified discrimination against the
surviving spouse because he receives a graeter or an equal
amount when she survives with either the IC or the LP but
 with both at the same time she only receives a measly 1/8 of
the estate. Undoubtedly, the code seems to have wanted to
save portion of the estate for the free disposal of the
deceased. This is not a sufficient justification for
discriminating against the surviving spouse and destroying
the balance between the legitimes, after vall, there are
instances in w/c the free portion is merely theoretical.
 Art. 900. If the only survivor is the widow or
 widower, she or he shall be entitled to one-half of the
hereditary estate of the deceased spouse, and the
testator may freely dispose of the other half. (837a)
If the marriage between the surviving spouse and the
testator was solemnized in articulo mortis, and the
testator died within three months from the time of
the marriage, the legitime of the surviving spouse as
the sole heir shall be one-third of the hereditary
estate, except when they have been living as husband
and wife for more than five years. In the latter case,
the legitime of the surviving spouse shall be that
specified in the preceding paragraph. (n)
Presupposes that the surviving spouse is the only compulsory
heir.
T: We believe that this rule will apply only when the deceased
is the spouse who was at the point of death at the time of
marriage; hence, it will not apply when the spouse who was at
the point of death at the time of marriage is the one who
survives, and the other is the one who dies w/in three months
after the marriage.
68
Wills & Succession/ Atty Uribe
Ratio for the rule is the presumption that the marriage is
contracted exclusively for inheriting. However, this suspicion
is erased if the spouses had been living together as husband
and wife for at least five years on account of companionship
and affection for such length of time.
This distinction does not apply to intestacy  the adopted is survived by illegitimate issue
 Art. 901. When the testator dies leaving illegitimate
children and no other compulsory heirs, such
illegitimate children shall have a right to one-half of
the hereditary estate of the deceased.
The other half shall be at the free disposal of the
testator. (842a)
 Art. 903. The legitime of the parents who have an
illegitimate child, when such child leaves neither
legitimate descendants, nor a surviving spouse, nor
illegitimate children, is one-half of the hereditary
estate of such illegitimate child. If only legitimate or
illegitimate children are left, the parents are not
entitled to any legitime whatsoever. If only the
 widow or widower survives with parents of the
illegitimate child, the legitime of the parents is one-
fourth of the hereditary estate of the child, and that
of the surviving spouse also one-fourth of the estate.
(n)
It must be noted that in illegitimate filiation, the right to
succeed in the ascending line terminates with the parent of
the deceased illegitimate child. There is, therefore, no
reciprocity of successional reights between the illegitimate
grandparent and the illegitimate grandchild.
P.D. 603; Art. 39. Effects of Adoption. - The adoption
shall:
(1) Give to the adopted person the same
rights and duties as if he were a legitimate
child of the adopter: Provided, That an
adopted child cannot acquire Philippine
citizenship by virtue of such adoption:
(2) Dissolve the authority vested in the
natural parent or parents, except where the
adopter is the spouse of the surviving natural
parent;
(3) Entitle the adopted person to use the
adopter's surname; and
(4) Make the adopted person a legal heir of
the adopter: Provided, That if the adopter is
survived by legitimate parents or ascendants
and by an adopted person, the latter shall
not have more successional rights than an
acknowledged natural child: Provided,
further, That any property received
gratuitously by the adopted from the adopter
shall revert to the adopter should the former
predecease the latter without legitimate
issue unless the adopted has, during his
lifetime, alienated such property: Provided,
- jann -
finally, That in the last case, should the
adopted leave no property other than that
received from the adopter, and he is survived
 by illegitimate issue or a spouse, such
illegitimate issue collectively or the spouse
shall receive one-fourth of such property; if
and a spouse, then the former collectively
shall receive one-fourth and the latter also
one-fourth, the rest in any case reverting to
the adopter, observing in the case of the
illegitimate issue the proportion provided
for in Article 895 of the Civil Code.
The adopter shall not be a legal heir of the adopted
person, whose parents by nature shall inherit from
him, except that if the latter are both dead, the
adopting parent or parents take the place of the
natural parents in the line of succession, whether
testate or interstate.
D. Restrictions regarding the legitime
 Art. 904. The testator cannot deprive his compulsory
heirs of their legitime, except in cases expressly
specified by law.
 Art. 872. The testator cannot impose any charge,
condition, or substitution whatsoever upon the
legitimes prescribed in this Code. Should he do so,
the same shall be considered as not imposed. (813a)
The legitime goes to the heir by operation of law and not by
the will of the testator; hence it cannot be subject to the
freedom of the latter to impose encumbrances, conditions
and substitutions. Any encumbrance is simply disregarded
and considered as not written. The CH’s right to the legitime
is free, unencumbered, and pure.
 Art. 905. Every renunciation or compromise as
regards a future legitime between the person owing
it and his compulsory heirs is void, and the latter
may claim the same upon the death of the former;
 but they must bring to collation whatever they may
have received by virtue of the renunciation or
compromise. (816)
1. The future legitime between is merely an
expectancy, and the heir does not acquire any right
over the same until death of testator.
2. The renunciation or compromise does not become
 valid by the mere failure of the compulsory heirs to
assert its invalidity because the matter of its legal
effect cannot be left to the will of the parties.
3. all renunciations of future legitimes are void.
However, a mere statement made by a son of the
properties ne has received from his father, still
living, for the purpose of taking the same into
account in case of partition in the event the father
dies, is not a renunciation or compromise on future
legitime.
4. Since the legitime is a part of the inheritance, and a
compromise is contract, it is obvious that all
compromises on future legitimes, by and between
69
Wills & Succession/ Atty Uribe
the heirs themselves to the exclusion of the testator,
must be held void if not under this article, under the
general prohibition of Art. 1347.
5. the nullity of the renunciation or compromise may
 be claimed, not only by the CH who made it, by co-
heirs prejudiced thereby.
6. the giving of donations as advance of the legitime is
not prohibited by this article nor 1347 but governed
 by rules on donation and the reduction thereof
 whenever inofficoius.
 Art. 906. Any compulsory heir to whom the testator
has left by any title less than the legitime belonging
to him may demand that the same be fully satisfied.
(815)
By the word testator, irt is believed thiat this principle applies
only when that which has been left is in a will or testament. If
there is no testatmentery disposition in his favor, the heir
cannot ask for completion of his legitime, because there is
nothing to complete; instead, there should be case of
preterition or total omission, and in such case the forced heir
in the direct line is entitled to ask, not merely for the
completion of his legitime, but for the annulment of the
institution of heir.
But when it is not evedent that the testator has forgotten the
compulsory heir and it appears as a fact that the compulsory
heir had already received something in the way of advance
upon his legitime, it cannot be presumed that the testator had
forgotten the compulsory heir. There is no real preterition,
although nothing has been left by will to the CH. The purpose
of Article 906 evidently is to give the compulsory heir only
that ehich has been reserved for him by the law, nothing less
nothing more. If he was not forgotten then he is entitled only
to that which the testator cannot deprive him.
Even when the CH has not been mentioned in the will or has
not been gien an advance on his legitime, if the testamentary
dispositions do not cover the entire estate but something is
left undisposed, and the CH is also a compulsory heir is also
an intestate heir. The indisposed portion would pass by the
rule of intestacy to the CH; if it is not enough to cover his
legitime, then he may ask for the completion of such legitme.
It is to be presumed that the testator intended to give him the
undisposed portion.
 Art. 907. Testamentary dispositions that impair or
diminish the legitime of the compulsory heirs shall
 be reduced on petition of the same, insofar as they
may be inofficious or excessive. (817)
Only the CHs whose legitme has been impaired can avail of
the right to ask for the reduction of inofficious donations,
devises, or legacies.
 Art. 1347. All things which are not outside the
commerce of men, including future things, may be
the object of a contract. All rights which are not
intransmissible may also be the object of contracts.
No contract may be entered into upon future
inheritance except in cases expressly authorized by
law.
- jann -
 All services which are not contrary to law, morals,
good customs, public order or public policy may
likewise be the object of a contract. (1271a)
It is essential that the object must be in existence at the time
of perfection of the contract, or that it has the possibility or
potentiality of coming into existence at some future time. By
way of exception, the law generally does not allow contracts
on future inheritance. In order to be future inheritance, the
succession must not have been opened at the time of the
contract. A contract to fall within the prohibition of this article,
the following requisites are necessary: 1. that the succession
is yet to be opened. 2. the object forms part of the
inheritance. 3. the promissor has an expectant right over the
object which is purely hereditary in nature.
 An agreement to partition an estate of a living person by
those who inherit from him is void. A contract renouncing the
right to inherit from one who is still alive is void.
 After the death of the person, however, the properties and
rights left by him by way of inheritance can be the subject
matter of a contract among or by his heirs, even before a
partition thereof has been made, because the rights of the
heirs are transmitted to them from the death of the
predecessor.
When the object of the contract is not a part of the
inheritance, the prohibition does not apply, even if delivery of
such object is dependent upon the death of one of the
contracting parties. Thus, life insurance contracts, and
stipulations providing for reversion of property donated in
marriage settlements in the event of the death of the donee,
are valid. Likewise, if the right of the party over the thing is
not by virtue of succession, but as creditor, the contract does
not fall within the prohibition of this article. It has been held
that in a contract of purchase by co-owners, it is valid to
stipulate that in the event of death of any of them, those who
survive will acquire the share of the predeceased.
E. Determination of computation
 Art. 908. To determine the legitime, the value of the
property left at the death of the testator shall be
considered, deducting all debts and charges, which
shall not include those imposed in the will.
Steps to determine legitime:
1. Determination of the value of the property which
remains at the time of the testator’s death; either by:
a. judicial proceedings in the settlement of
the estate assisted by tax appraisers
 b. true value of the property not merely
assessed value for taxation purposes
2. determination of the obligations, debts, and charges
 which have to be paid out or deducted from the
 value of the property 
3. the difference between the assets and the liabilities,
giving rise to the net hereditary estate;
4. addition to the net value of the estate of donations
subject to collation
70
Wills & Succession/ Atty Uribe
37. Esculin vs. Esculin Escuin and Eugenia de los Santos, and was recognized by
his father; and that the plaintiff minor, Emilio Escuin y Batac,
On the 19th of January, 1899, Emilio Antonio Escuin de los is one of the heirs of the late testator.
Santos
Santos executed
executed a will
will before
before a notary
notary public
public of Sevill
Sevilla,
a, Until all the known creditors and the legatees have been
Spain, stating therein that he was a native of Cavite, the son paid
paid,, it shal
shalll be unde
undersrsto
tood
od that
that the
the esta
estate
te is unde
underr
of Francisco Escuin and Eugenia de los Santos, the latter administration, says article 1026 of the Civil Code, and in
being
being deceas
deceased;
ed; that
that he was marrie
married d about
about six months conformity with this legal provision the supreme tribunal has
previously to Maria Teresa Ponce de Leon, and that he had established the doctrine that "only after payment of all the
no lawful
lawful descen
descendan
dants;
ts; the testato
testator,
r, howeve
however,
r, stated
stated in obligations of the estate can the net amount divisible among
clause three of his will, that in case he had a duly registered the heirs be known." (Decision of March 2, 1896.)
successor, his child would be his sole and universal heir; but
that if, as would probably be the case, there should be no Sectio
Sectionn 753 of the Code of Civil Civil Proced
Procedure
ure confirms
confirms the
such
such heir,
heir, then
then in clause
clause four he named
named his said
said father
father provision
provision of the Civil Code and the legal doctrine mentioned
Francisco Escuin, and his wife Maria Teresa Ponce de Leon above, inasmuch as it provides that, after payment of the
his universal heirs, they to divide the estate in equal shares debts, funeral charges, and expenses of administration, and
between them. the allowances for the expense of maintenance of the family
of the deceased, the court shall assign the residue of the
The testator died on the 20th of January, 1899, as certified to esta
estate
te to the
the pers
personons
s enti
entitl
tled
ed to thethe same
same,, nami
namingng the
the
by the municipal court of Magdalena, Sevilla, on the 20th of persons and proportions or parts to which each is entitled,
March, 1900. etc.
On the 30th of September, 1905, the court below found that So that by reason of the claims made by the creditor of the
Emilio Escuin y Batac was the recognized natural child of the estate of Emilio Escuin de los Santos and by her natural son,
late Emilio Escuin de los Santos, had by Julia Batac; that the duly recognized by his father, an ordinary action should have
testator was also the natural son of the defendant Francisco been brought before the Court of First Instance,
Instance, from whose
Escuin and Eugenia de los Santos, and was recognized by  judgment appeal may be taken to t o this court by means of the
his father; and that the plaintiff minor, Emilio Escuin y Batac, corres
correspon
pondin
ding
g bill
bill of except
exception
ionss under
under the provis
provision
ions
s of
is one of the heirs of the late testator. section 777 of the Code of Civil Procedure; and while the
ultimate
ultimate decision in the matter of the said claims against
against the
Upon the the will havinving been admitt mitte
ed to probrobate,
te, resolution of the commissioners has not become final, and
commissioner
commissioners s were appointed to consider
consider claims against until all the obligations of the estate have been paid, there
the estate, and, according to a report presented to the Court can really be no inheritance
inheritance,, nor can it be distributed
distributed among
of First Instance on the 20th of June, 1907, one claim was the persons interested therein according to the will of the
allowed amounting to 3,696.50 pesetas. testator, or under the provisions of the law.

It appears in the proposed partition of the 3d of September, With respect to the questions which form the basis of this
1906, that, according to the opinion of the administrator by litiga
litigatio
tion
n and refer
refer to the second assignmen
assignmentt of errors
errors,, it
whom it was signed and the result of the proceedings, the should
should be notednoted that the late testator
testator did not leave
leave any
property left by the testator, in accordance with the accounts legiti
legitimate
mate descen
descendan
dantsts or ascend
ascendant
ants,
s, but did leave
leave a
passe
assed
d upo
uponn by
by the
the cour
court,
t, amou
amountnted
ed to P8,2
P8,26868.0
.02
2 recognized natural child, the appellant minor, and a widow;
that the said minor, Emilio Escuin y Batac, is the general heir
Deducting this amount from the funds of his natural father, the said testator, who recognized him
of the
the esta
estate
te,, ther
there
e rema
remain
inss a balan
alance
ce of  while living (art. 807, Civil Code), and in the present case is
5,014.81 entitled to one-third of his estate, which amount constitutes
the legal portion of a natural child (art. 842 of the said code);
That
That the said
said credit
credit of P1,321.
P1,321.40,
40, equiva
equivalen
lentt to 3,696.
3,696.50
50 and for the reason that the minor was ignored
ignored by his natural
pesetas, allowed by the commissioners, is the only claim father in his will, the designation of heirs made therein was,
presen
presented
ted within
within the legal
legal term
term agains
againstt the estate;
estate; that
that as a matter of fact annulled by force of law, in so far as the
Francisco Escuin, the father of the testator, his wife or widow, lega
legall port
portio
ionn of the
the said
said mino
minorr was
was ther
thereb
eby
y impa
impair
ired
ed..
Teresa
Teresa Ponce de Leon, Leon, and his natura
naturall child,
child, the minor
minor Legacies and betterments shall be valid, in so far as they are
Emil
Emilio
io Escui
Escuinn y Bata
Batac,
c, repr
repres
esen
ented
ted by hishis moth
mother
er and
and not illegal,
illegal, for the reason
reason that a testator
testator can not deprive the
guardian
guardian Julia Batac, are entitled to the succession;
succession; that, by heirs of their legal portions, except in the cases expressly
setting aside one-third of the estate in favor of the natural son indicated by law. (   Arts. 763, 813, 814, Civil Code.)
recognized
recognized in accordance
accordance with article 842 of the Civil Code,
there only remains the question as to how the remaining two-  As has been seen, the testator wished to dispose of his
thirds
thirds of the inheri
inheritan
tance
ce shall
shall be bestow
bestowed,
ed, taking
taking into
into  property in his will, designating as heirs his natural father,
account the directions of the testator in his will; that the same Franci
Francisc
sco
o Escuin
Escuin,, and his wife,
wife, Maria
Maria Teresa
Teresa Ponce
Ponce de
does not disclose that he had left any child by his wife; that Leon, altogether ignoring his recognized natural child who is
the latter,
latter, as the widow
widow of the testator
testator,, beside
besides s being
being a his general heir. In view thereof, and for the reason that he
designated heir entitled to one-half of the hereditary funds, is exceeded his rights, the said designation of heirs became
entitled to the usufruct of the portion fixed by the law, and void in so far as it impaired the right of his general heir and
that the funds to be apportioned are composed wholly of deprived him of his legal portion; the will, however, is valid
cash or ready money. with
with respec
respectt to the two-thir
two-thirds
ds of the property
property which
which the
testator could freely dispose of.   (Arts. 763, 764, 806, 813,
On the 30th of September, 1905, the court below found that 842, Civil Code.)
Emilio Escuin y Batac was the recognized natural child of the
late Emilio Escuin de los Santos, had by Julia Batac; that the Notwit
Notwithst
hstand
anding
ing the fact
fact that
that the design
designati
ation
on of heirs
heirs is
testator was also the natural son of the defendant Francisco annulled and that the law recognizes the title of the minor,

- jann - 83
Wills & Succession/ Atty Uribe
Escuin y Batac, to one-third of the property of his natural Felix Balanay, Jr., in his reply to the opposition, attached
father, as his lawful and general heir, it is not proper to assert thereto an affidavit of Felix Balanay, Sr. dated April 18, 1973
that the late Emilio Escuin de los Santos died intestate in wherein
wherein he withdrew
withdrew his opposition
opposition to the probate of the will
orde
orderr to esta
establ
blis
ish
h the
the conc
conclu
lusi
sion
on that
that his
his said
said natu
natura
rall and affirmed that he was interested in its probate. On the
recognized child is entitled to succeed to the entire estate same date Felix Balanay, Sr. signed an instrument captioned
unde
underr the
the prov
provis
isio
ions
ns of arti
articl
cle
e 939
939 of the
the Civi
Civill Code
Code,, "Con
"Confoforma
rmatio
tion
n (sic)
(sic) of Divi
Divisi
sion
on andand RenuRenunc
ncia
iati
tion
on of
inasmuch as in accordance with the law a citizen may die Hereditary Rights" wherein he manifested
manifested that out of respect
 partly testate and partly intestate (art. 764, Civil Code). It is for his wife’s will he "waived and renounced" his hereditary
clear and unquestionable that it was the wish of the testator rights in her estate in favor of their six children. In that same
to favor his natural father and his wife with certain
certain portions of instrument he confirmed the agreement, which he and his
his property
property which, under the law, he had a right to disposedispose wife
wife had perfec
perfected
ted before
before her death,
death, that
that their
their conjug
conjugal
al
of by will, as he has done, provided the legal portion
portion of his  properties would be partitioned in the manner indicated in
genera
generall heir
heir was not thereb
therebyy impair
impaired,
ed, the two formerformer her will.
 persons being considered
considered as legatees under the the will. Montaña in his motion assailed the provision of the will which
parti
partiti
tion
oned
ed the
the conj
conjug
ugal
al asse
assets
ts or alle
allege
gedl
dly
y effe
effecte
cted
d a
The above-mentioned will is neither null, void, nor illegal in compromise of future legitimes. He prayed that the probate of
so far as the testator leaves two-thirds of his property to his the will be withdrawn and that the proceeding be converted
father and wife; testamentary provisions impairing the legal into an intestate proceeding. In another motion of the same
 portion of a general heir shall be reduced in so far as they date he asked that the corresponding notice to creditors be
are illegal or excessive. (Art. 817, Civil Code.) The partition issued.
of the property of the said testator shall be proceeded with in
accordance with the foregoing legal bases. The basic issue is whether the probate court erred in passing
By virtue of the foregoing considerations it is our opinion that upon
upon the intrinsi
intrinsic
c validi
validity
ty of the will, before
before ruling
ruling on its
the orders
orders of the court
court below,
below, of October
October 30, 1906, and allowance or formal validity, and in declaring it void.
 August 24, 1907, should be reversed, and upon receipt of a
certif
certified
ied copy
copy of this
this decisi
decision
on the court below
below shall
shall take
take We areare of the opinio
opinionn that
that in view
view of cert
certai
ain
n unus
unusua
uall
action
action in accorda
accordance
nce with the law and the terms terms herein
herein provis
provision
ionss of the will, which are of dubiou
dubious s legali
legality,
ty, and
contained with respect to the claims and appeals from the because of the motion to withdraw the petition for probate
resolutions of the commissioners pending judicial decision. (which the lower court assumed to have been filed with the
So ordered. petitioner’
petitioner’ss authorizatio
authorization),
n), the trial court acted correctly in
passing upon the will’s intrinsic validity even before its formal
Balanay vs. Martinez validity
validity had been established.
established. The probate of a will might
become an idle ceremony if on its face it appears to be
Felix Balanay, Jr. appealed by certiorari from the order of the intrinsically void. Where practical considerations demand that
Court of First Instance of Davao dated February 28, 1974, the intrinsic validity of the will be passed upon, even before it
declaring illegal and void the will of his mother, Leodegaria is probated, the court should issue  (Nuguid vs.
should meet the issue
Julian,
Julian, converting
converting the testate proceeding
proceeding into an intestate Nugu
Nuguidid,, 64 O.G.
O.G. 1527
1527,, 17 SCRA
SCRA 449.
449. Comp
Compar are
e with
with
proceeding and ordering the issuance of the corresponding Sumilang vs. Ramagosa, L-23135, December 26, 1967, 21
notice to creditors (Special Case No. 1808). The antecedents SCRA 1369; Cacho vs. Udan, L-19996, April 30, 1965, 13
of the appeal are as follows: SCRA 693).
Felix J. Balanay, Jr. filed in the lower court a petition dated
February 27, 1973 for the probate of his mother’s notarial will But
But the
the prob
probat
ate
e cour
courtt erre
erredd in decl
declar
arin
ing
g in its
its orde
orderr of
dated September 5, 1970 which is written in English. In that February 28, 1974 that the will was void and in converting the
will Leodegaria Julian declared (a) that she was the owner of test
testa
ate pro
procee
ceeding
ding into
nto an inteintest
stat
ate
e proc
procee
eed
ding
ing
the "southern
"southern half" of nine conjugal
conjugal lots (par. II); (b) that she notwithstanding the fact that in its order of June 18, 1973 it
was the absolute owner of two parcels of land which she gave effect to the surviving husband’s conformity to the will
inherited from her father (par. III), and (c) that it was her and
and to his
his renu
renunc
ncia
iati
tion
on of his
his here
heredi
dita
tary
ry righ
rights
ts whic
whichh
desire that her properties should not be divided among her presum
presumabl
ably
y includ
included
ed his one-ha
one-half
lf share
share of the conjug
conjugalal
heirs during her husband’s lifetime and that their legitimes estate.
should be satisfied out of the fruits of her properties (Par. IV).
The rule is that "the invalidity of one of several dispositions
Then, in paragraph V of the will she stated that after her contained in a will does not result in the invalidity of the other
husband’s death (he was eighty-two years old in 1973) her dispositions, unless it is to he presumed that the testator
paraph
paraphernernal
al lands
lands and all the conjug
conjugal
al lands
lands (which
(which she would
would not have made made such other dispositi
dispositions
ons if the first
descr
describibed
ed as "my"my prop
proper
erti
ties
es")
") shou
should
ld be divi
divide
ded
d andand invalid disposition had not been made" (Art. 792, Civil Code).
distributed in the manner set forth in that part of her will. She "Where some of the provisions
provisions of a will are valid and others
devised and partitioned the conjugal lands as if they were all invalid, the valid parts will be upheld if they can be separated
owned by her. She disposed of in the will her husband’s one- from the invalid without defeating the intention of the testator
half share of the conjugal assets. * or interfering with the general testamentary scheme, or doing
injustice to the beneficiaries" (95 C.J.S. 873).
Felix
Felix Balana
Balanay,
y, Sr. and Avelin
Avelina
a B. Antoni
Antonioo oppose
opposed d the
probate of the will on the grounds of lack of testamentary The statement of the testatrix that she owned the "southern
capaci
capacity,
ty, undue
undue influe
influence
nce,,  preterition of the husband and half"
half" of the
the conj
conjug
ugal
al land
lands
s is cont
contra
rary
ry to law
law beca
becaus
use,
e,
allege
alleged
d improp
improper
er partit
partition
ion of the conjug
conjugal estate..  The
al estate although she was a coowner thereof, her share was inchoate
opposi
oppositor
tors
s claime
claimed d that
that Felix
Felix Balana
Balanay,y, Jr. should
should collat
collate
e and proindiviso (Art. 143, Civil Code; Madrigal and Paterno
certain properties which he had received from the testatrix. vs. Rafferty and Concepcion, 38 Phil. 414). But that illegal

- jann - 84
Wills & Succession/ Atty Uribe
decl
declar
arati
ation
on does
does not
not null
nullif
ify
y the enti
entire
re will
will.. It may
may be dissolution of the conjugal partnership, had assented to her
disregarded. testamen
testamentary
tary partition of the conjugal
conjugal estate,
estate, such partition
partition
has become valid, assuming that the will may be probated.
The provision of the will that the properties of the testatrix
should not be divided among her heirs during her husband’s The instant case is different from the Nuguid case, supra,
lifetim
lifetime
e but should
should be kept
kept intact
intact and that
that the legitime
legitimes
s where the testatrix instituted as heir her sister and preterited
should be paid in cash is contrary to article 1080 of the Civil her
her pare
parents
nts.. Her
Her will
will was
was intri
intrins
nsic
ical
ally
ly void
void beca
because
use it
Code which reads: preterited her compulsory heirs in the direct line. Article 854
of the Civil Code provides that "the preterition or omission of
"ART. 1080. Should a pe
person mamake a one, some, or all of the compulsory heirs in the direct line,
partition of his estate by an act inter vivos, whether living at the time of the execution of the will or born
or by will, such partition shall be respected, after the death of the testator, shall annul the institution of
insofar as it does not prejudice the legitime heir; but the devises and legacies shall be valid insofar as
of the compulsory heirs. they are not inofficious." Since
Since the preterition
preterition of the parents
annulled the institution of the sister of the testatrix and there
"A parent who, in the interest of his or her were no legacies and devises, total intestacy resulted   (Art.
family
family,, desire
desires
s to keep
keep any agricu
agricultu
ltural
ral,, 960[2], Civil Code).
industr
industrial
ial,, or manufa
manufactucturin
ring
g enterp
enterpris
rise
e
inta
intact
ct,, may
may avai
availl hims
himsel
elff of the
the righ
rightt In the instan
instantt case,
case, the preter
preterite
ited
d heir
heir was the survivin
surviving
g
granted
granted him in this article,
article, by ordering
ordering that spouse. His preterition did not produce intestacy. Moreover,
the legitime of the other children to whom he signified his conformity to his wife’s will and renounced his
the property is not assigned, be paid in hereditary rights.
cash. (1056a)"
It results that the lower court erred in not proceeding with the
The testatrix in her will made a partition of the entire conjugal probate of the will as contemplated in its uncancelled order of
estate
estate among her six children
children (her husband
husband had renounced
renounced June 18, 19713. Save in an extreme case where the will on
his hereditary rights and his one-half conjugal share). She its face is intrinsically void, it is the probate court’s duty to
did not assign the whole estate to one or more children as pass first upon the formal validity of the will. Generally, the
envisaged in article 1080. Hence, she had no right to require prob
probate
ate of the willwill is mand
mandatoatoryry (Art.
(Art. 838,
838, Civi
Civill Code
Code;;
that the legitimes be paid in cash. On the other hand, her Guev
Guevararaa vs. Guev
Guevarara,
a, 74 Phil
Phil.. 479
479 andand 98 Phil
Phil.. 249;
249;
estate
estate may remain
remain undivi
undivided
ded only for a period
period of twenty
twenty Fernan
Fernandez
dez vs. Dimagi
Dimagiba,
ba, L-2363
L-23638, 8, Octobe
Octoberr 12, 1967,
1967, 21
years. So, the provision that the estate should not be divided SCRA 428).
during her husband’s lifetime would at most be effective only To give effect to the intention and wishes of the testatrix is
for twenty years from the date of her death unless there are the first and principal law in the matter of testaments (Dizon-
compellin
compelling g reasons
reasons for terminatin
terminatingg the coownershi
coownership p  (Art. Rivera vs. Dizon, L-24561, June 30, 1970, 33 SCRA 554,
1083, Civil Code). 561). Testacy is preferable to intestacy. An interpretation that
Subjec
Subjectt to the forego
foregoing
ing observati
observations
ons and the rules
rules on will
will render
render a testam
testament
entary
ary dispos
dispositiition
on operat
operativ
ive
e takes
takes
collation, the will is intrinsically valid and the partition therein  precedence over a construction that will nullify a provision of
may be given effect if it does not prejudice the creditors and the will (Arts. 788 and 791, Civil Code).
impair
impair the legiti
legitimes
mes.. The distri
distribut
bution
ion and partiti
partition
on would
would
become effective
effective upon the death of Felix Balanay,
Balanay, Sr. In the Testacy is favored. Doubts are resolved in favor of testacy
meantime, the net income should be equitably divided among especially where the will evinces an intention on the part of
the children and the surviving spouse. the testator to dispose of practically his whole estate. So
compelling is the principle that intestacy should be avoided
It shou
should ld be stre
stress
ssed
ed that
that by reas
reason
on of thethe surv
surviv
ivin
ing
g and
and that
that the
the wish
wishes
es of the
the testa
testator
tor shou
should
ld prev
prevai
aill that
that
husband’s conformity to his wife’s will and his renunciation of sometimes the language of the will can be varied for the
his hereditary rights, his one-half conjugal share be a part of purpos
purposee of giving
giving it effect
effect (Austri
(Austria
a vs. Reyes,
Reyes, L-2307
L-23079,9,
his deceased wife’s estate. His conformity had the effect of February 27, 1970, 31 SCRA 754, 762).
valida
validatin
tingg the partitio
partition
n made
made in paragr
paragraph
aph V of the will
without prejudice, of course, to the rights of the creditors and  As far as is legally possible, the expressed desire of the
the legitimes of the compulsory heirs. testa
testator
tor must
must be foll
follow
owed
ed and
and the
the disp
dispos
osit
itio
ions
ns of the
the
 Article 793 of the Civil Code provides that "property acquired prop
proper
ertie
ties
s in his
his will
will shou
should
ld be uphe
upheldld (Esto
(Estorq
rque
ue vs.
after the making of a will shall only pass thereby, as if the Estorque, L-19573, June 30, 1970, 33 SCRA 540, 546).
testator had possessed it at the time of making the will, The law has a tender regard for the wishes of the testator as
should it expressly appear by the will that such was his expressed in his will because any disposition therein is better
intention". Under article 930 of the Civil Code "the legacy or than that which the law can make   (Castro vs. Bustos, L-
devise of a thing belonging to another person is void, if the 25913, February 28, 1969, 27 SCRA 327, 341).
testator erroneously believed that the thing pertained to him.
But if the thing
thing bequea
bequeathed
thed,, though
though not belong
belonging
ing to the Solano vs. CA
testator when he made the will, afterwards becomes his, by
whatever title, the disposition shall take effect." On July 7, 1969, Bienvenido Garcia and Emeteria Garcia
(GARCIAS), claiming to be illegitimate children of Dr. Meliton
In the instant case there is no doubt that the testatrix and her SOLANO, filed an action for recognition against him. In his
husban
husband d intend
intended
ed to partit
partition
ion the conjugal
conjugal estate
estate in the  Answer, SOLANO denied paternity. On February 3, 1970,
manner set forth in paragraph V of her will. It is true that she during the pendency of the suit, SOLANO died. Petitioner
could
could dispose of by will only her half of the conjugal
conjugal estate ZONI
ZONIAA Ana
Ana Sola
Solano
no was
was orde
ordere
red
d subs
substi
titu
tute
ted
d for
for the
the
(Art.
(Art. 170,
170, Civil
Civil Code)
Code) but since
since the husband,
husband, after the DECEDENT as the only surviving heir mentioned in his Last

- jann - 85
Wills & Succession/ Atty Uribe
Will and Testament probated on March 10, 1969, or prior to
his death, in Special Proceedings No. 842 of the same Court.
ZONIA entered her formal appearance as a "substitute
defendant" on March 4, 1970 claiming additionally that she
was the sole heir of her father, SOLANO, and asking that she
be allowed to assume her duties as executrix of the probated
Will with the least interference from the GARCIAS who were
"mere pretenders to be illegitimate children of SOLANO".
In the hearing of May 13, 1970, the Trial Court specified the
legal issues to be treated in the parties' respective
Memoranda as: 1) the question of recognition of the
GARCIAS; 2) the correct status of ZONIA, and 3) the
hereditary share of each of them in view of the probated Will.
2 Will is conclusive only as to its due execution. 5 A probate
 Appealed to the Court of Appeals by ZONIA, said Court
affirmed the judgment in toto (CA-G.R. No. 49018).
ZONIA seeks a reversal of that affirmance in this petition,
which was given due course.
 At the outset, we should state that we are bound by the
findings of fact of both the Trial Court and the Appellate
Court, particularly, the finding that the GARCIAS and ZONIA
are, in fact, illegitimate children of the DECEDENT. The oral
testimony and the documentary evidence of record inevitably
point to that conclusion, as may be gleaned from the
following background facts: SOLANO, a resident of Tabaco,
 Albay, married Pilar Riosa. The latter died. On a world tour
he met a French woman, Lilly Gorand, who became his
second wife in 1928. The union was short-lived as she left
him in 1929. In the early part of 1930, SOLANO started
having amorous relations with Juana Garcia, out of which
affair was born Bienvenido Garcia on March 24, 1931
(Exhibits "A" & "3"); and on November 3, 1935, Emeteria
Garcia was born (Exhibits "B" & "2"). Their birth certificates
and baptismal certificates mention only the mother's name
without the father's name. The facts establish, however, that
SOLANO during his lifetime recognized the GARCIAS as his
children by acts of support and provisions for their education.
In 1935, SOLANO started living with Trinidad Tuagnon.
Three children were born out of this relation but only
petitioner ZONIA Ana Tuagnon, born on July 26, 1941, is
living. In her Birth Certificate, her status was listed as
"illegitimate"; her mother as Trinidad Tuagnon; her father as
"P.N.C." (Exhibit "V"), or "padre no conocido".
Directly challenged is the jurisdiction of the lower Court, in an
action for recognition: 1) to declare ZONIA as an illegitimate
child of SOLANO; 2) to order the division of the estate in the
same action despite the pendency of Special Proceedings
No. 842; and 3) to declare null and void the institution of heir
in the Last Will and Testament of SOLANO, which was duly
probated in the same Special Proceedings No. 842, and
concluding that total intestacy resulted.
ZONIA additionally assails the jurisdiction of the Trial Court in
declaring null and void the institution of heir in SOLANO's
will; in concluding that total intestacy resulted therefrom; and
distributing the shares of the parties in SOLANO's estate
when said estate was under the jurisdiction and control of the
Probate Court in Special Proceedings No. 842.
Normally, this would be the general rule. However, a peculiar
situation is thrust upon us here. It should be recalled that
SOLANO himself instituted the petition for probate of the Will
- jann -
during his lifetime, That proceeding was not one to settle the
estate of a deceased person that would be deemed
terminated only upon the final distribution of the residue of
the hereditary estate. With the Will allowed to probate, the
case would have terminated except that it appears that the
parties, after SOLANO's death, continued to file pleadings
therein Secondly, upon motion of the GARCIAS, and over the
objection of ZONIA, the Trial Court ordered the impleading of
the estate of SOLANO and proceeded on that basis. In
effect, therefore, the two cases were consolidated. The
records further disclose that the action for recognition (Civil
Case No. 3956) and Spec. Procs. No. 842 were pending
before the same Branch of the Court and before the same
Presiding Judge. Thirdly, it is settled that the allowance of a
decree is not concerned with the intrinsic validity or legality of
the provisions of the Will. 6
Thus, the Trial Court and the Appellate Court had jurisdiction
to conclude that, upon the facts, the GARCIAS and ZONIA
were in the same category as illegitimate children; that
ZONIA's acknowledgment as a "natural child" in a notarial
document executed by SOLANO and Trinidad Tuagnon on
December 22, 1943 was erroneous because at the time of
her birth in 1941, SOLANO was still married to Lilly Gorand,
his divorce having been obtained only in 1943, and,
therefore, did not have the legal capacity to contract
marriage at the time of ZONIA's conception, 7 that being
compulsory heirs, the GARCIAS were, in fact, preterited from
SOLANO's Last Will and Testament; and that as a result of
said preterition, the institution of ZONIA as sole heir by
SOLANO is null and void pursuant to Article 854 of the Civil
Code.
 As provided in the foregoing provision, the disposition in the
Will giving the usufruct in favor of Trinidad Tuagnon over the
five parcels of land in Bantayan, Tabaco, Albay, is a legacy,
recognized in Article 563 of the Civil Code, 9 and should be
respected in so far as it is not inofficious. 10
Since the legitime of illegitimate children consists of one-half
(1/2) of the hereditary estate, 13 the GARCIAS and ZONIA
each have a right to participation therein in the proportion of
one-third (1/3) each. ZONIA's hereditary share will, therefore,
be 1/2 + (1/3 of 1/2) or 4/6 of the estate, while the GARCIAS
will respectively be entitled to 1/3 of 1/2 or 1/6 of the value of
the estate.
The case of Nuguid vs. Nuguid, et al., 14 reiterating the
ruling in Neri, et al. vs. Akutin, et al., 15 which held that
where the institution of a universal heir is null and void due to
 preterition, the Will is a complete nullity and intestate
succession ensues, is not applicable herein because in the
Nuguid case, only a one-sentence Will  was involved with no
other provision except the institution of the sole and universal
heir; there was no specification of individual property; there
were no specific legacies or bequests. It was upon that
factual setting that this Court declared:
Acain vs. CA
On May 29, 1984 petitioner Constantino Acain filed in the
Regional Trial Court of Cebu City Branch XIII, a petition for
the probate of the will of the late Nemesio Acain and for the
issuance to the same petitioner of letters testamentary,
docketed as Special Proceedings No. 591-A-CEB (Rollo, p.
29), on the premise that Nemesio Acain died leaving a will in
86
Wills & Succession/ Atty Uribe
which petitioner and his brothers Antonio, Flores and Jose
and his sisters Anita, Concepcion, Quirina and Laura were
instituted as heirs. The will allegedly executed by Nemesio
 Acain on February 17, 1960 was written in Bisaya (Rollo, p.
27) with a translation in English (Rollo, p. 31) submitted by
 petitioner without objection raised by private respondents.
The will contained provisions on burial rites, payment of
debts, and the appointment of a certain Atty. Ignacio G.
Villagonzalo as the executor of the testament.
Obviously, Segundo pre-deceased Nemesio. Thus, it is the
children of Segundo who are claiming to be heirs, with
Constantino as the petitioner in Special Proceedings No.
591-A-CEB. After the petition was set for hearing in the
lower court on June 25, 1984 the oppositors (respondents
herein Virginia A. Fernandez, a legally adopted daughter
of the deceased and the latter's widow Rosa Diongson
Vda. de Acain) filed a motion to dismiss on the following
grounds: (1) the petitioner has no legal capacity to institute
these proceedings; (2) he is merely a universal heir and (3)
the widow and the adopted daughter have been preterited.
(Rollo, p. 158). Said motion was denied by the trial judge.
The pivotal issue in this case is whether or not private
respondents have been preterited.
 Article 854 of the Civil Code provides:
"Art. 854. The preterition or omission of one,
some, or all of the compulsory heirs in the direct
line, whether living at the time of the execution of
the will or born after the death of the testator, shall
annul the institution of heir; but the devisees and
legacies shall be valid insofar as they are not
inofficious.
If the omitted compulsory heirs should die before
the testator, the institution shall be effectual, without
prejudice to the right of representation."
Preterition consists in the omission in the testator's will of the
forced heirs or anyone of them either because they are not
mentioned therein, or, though mentioned, they are neither
instituted as heirs nor are expressly disinherited (Nuguid v.
Nuguid, 17 SCRA 450 [1966]; Maninang v. Court of Appeals,
114 SCRA 478 [1982]). Insofar as the widow is concerned,
 Article 854 of the Civil Code may not apply as she does not
ascend or descend from the testator, although she is a
compulsory heir. Stated otherwise, even if the surviving
spouse is a compulsory heir, there is no preterition even if
she is omitted from the inheritance, for she is not in the direct
line. (Art. 854, Civil Code) However, the same thing cannot
be said of the other respondent Virginia A. Fernandez,
whose legal adoption by the testator has not been
questioned by petitioner (Memorandum for the Petitioner, pp.
8-9). Under Article 39 of P.D. No. 603, known as the Child
and Youth Welfare Code, adoption gives to the adopted
 person the same rights and duties as if he were a legitimate
child of the adopter and makes the adopted person a legal
heir of the adopter. It cannot be denied that she was totally
omitted and preterited in the will of the testator and that both
adopted child and the widow were deprived of at least their
legitime. Neither can it be denied that they were not
expressly disinherited. Hence, this is a clear case of
 preterition of the legally adopted child.
- jann -
Preterition annuls the institution of an heir and annulment
throws open to intestate succession the entire inheritance
including "la porcion libre (que) no hubiese dispuesto en
virtual de legado, mejora o donacion" (Manresa, as cited in
Nuguid v. Nuguid, supra, Maninang v. Court of Appeals, 114
SCRA [19821). The only provisions which do not result in
intestacy are the legacies and devises made in the will for
they should stand valid and respected, except insofar as the
legitimes are concerned.
The universal institution of petitioner together with his
brothers and sisters to the entire inheritance of the testator
results in totally abrogating the will because the nullification
of such institution of universal heirs - without any other
testamentary disposition in the will - amounts to a declaration
that nothing at all was written. Carefully worded and in clear
terms, Article 854 of the Civil Code offers no leeway for
inferential interpretation (Nuguid v. Nuguid), supra. No
legacies nor devises having been provided in the will the
whole property of the deceased has been left by universal
title to petitioner and his brothers and sisters. The effect of
annulling the institution of heirs will be, necessarily, the
opening of a total intestacy (Neri v. Akutin, 74 Phil. 185
[1943]) except that proper legacies and devises must, as
already stated above, be respected.
For private respondents to have tolerated the probate of the
will and allowed the case to progress when on its face the will
appears to be intrinsically void as petitioner and his brothers
and sisters were instituted as universal heirs coupled with the
obvious fact that one of the private respondents had been
preterited would have been an exercise in futility. It would
have meant a waste of time, effort, expense, plus added
futility. The trial court could have denied its probate outright
or could have passed upon the intrinsic validity of the
testamentary provisions before the extrinsic validity of the will
was resolved (Cayetano v. Leonidas, supra; Nuguid v.
Nuguid, supra). The remedies of certiorari and prohibition
were properly availed of by private respondents.
Thus, this Court ruled that where the grounds for dismissal
are indubitable, the defendants had the right to resort to the
more speedy, and adequate remedies of certiorari and
prohibition to correct a grave abuse of discretion, amounting
to lack of jurisdiction, committed by the trial court in not
dismissing the case, (Vda. de Bacang v. Court of Appeals,
supra) and even assuming the existence of the remedy of
appeal, the Court harkens to the rule that in the broader
interests of justice, a petition for certiorari may be
entertained, particularly where appeal would not afford
speedy and adequate relief. (Maninang v. Court of Appeals,
supra).
PREMISES CONSIDERED, the petition is hereby DENIED
for lack of merit and the questioned decision of respondent
Court of Appeals promulgated on August 30, 1985 and its
Resolution dated October 23, 1985 are hereby AFFIRMED.
XII. RESERVA TRONCAL
 Art. 891. The ascendant who inherits from his
descendant any property which the latter may have
acquired by gratuitous title from another ascendant,
or a brother or sister, is obliged to reserve such
property as he may have acquired by operation of
law for the benefit of relatives who are within the
87
Wills & Succession/ Atty Uribe
third degree and who belong to the line from which
said property came. (871)
 A number of Reservas and Reversions where allowed under
the old civil code but they were eliminated under the new
civil code leaving only the Reserva Troncal. The elimination
 was in line with one of the principal objectives of the new civil
code in the law of succession; namely, to prevent the estate
from being entailed.
The following are some of the reasons for its abolition:
1. creates uncertainty in the pwnership of property, because
of the suspended ownership the reservista has no enthusiasm
to preserve or improve the property  spouses to reconvey to appellants Lot 3368 of the Cadastral
2. confinement of property w/in a certain family for
generations incompatible with the principle of socialization of
ownership
3. reserve is limited to the legitimate members of the family,
and the father or mother of a natural child who inherits
property from this child, and who in turn acquired it from
snother progenitor acquires absolute dominion of the
property w/o reservation.
4. in reserve viudal, the surviving spouse is obliged to resrve
properties left by deceased spouse to his if she remarries, but
the concubine is not obliged, thus, giving ptotection to
illegitimate relation.
Purpose of Reserva troncal
a. Resrve certain property in favor of certain relatives.
 b. maintain as is possible, with respect to the property to
 which it refers, a separation between the paternal and
maternal lines, so that property of one line may not pass to
the other, or through them to strangers.
Nature of Reserva
It creates a double resolutory condition to which the right of
ownership of the person obliged to reserve is subjected. The
resolutory condition, are first, the death of the ascendant
obliged to reserve, and, second, the survivial at that moment
of the relatives within the tird degree belonging to the line
from which the property came.
No reserve will exist in favor of illegitimate relatives, because
the law has not used qualifying terms natural or illegitimate
 with respect to the descendant or ascendant or relatives it is
to be presumed to refer only to legitimate ones.
Relatives within the third degree:
1st degree
1. father or mother only when no descendants,
2nd degree
- jann -
2. grandparents of the line where thw property came,
 brothers of full blood or half-blood
3rd degree
3. great GP, uncles by consanguinity full or half-blood, and
nephews and nieces of full or half blood.
38. Sienes vs. Esparcia
 Appellants commence this action below to secure judgments
(1) declaring null and void the sale executed by Paulina and
Cipriana Yaeso in favor of appellees, the spouses Fidel
Esparcia and Paulina Sienes; (2) ordering the Esparcia
Survey of Ayuquitan (now Amlan), Oriental Negros; and (3)
ordering all the appellees to pay, jointly and severally, to
appellants the sum of P500.00 as damages, plus the costs of
suit. In their answer appellees disclaimed any knowledge or
information regarding the sale allegedly made on April 20,
1951 by Andrea Gutang in favor of appellants and alleged
that if such sale was made, the same was void on the ground
that Andrea Gutang had no right to dispose of the property
subject matter thereof. They further alleged that said property
had never been in possession of appellants, the truth being
that appellees, as owners, had been in continuous
possession thereof since the death of Francisco Yaeso. By
way of affirmative defense and counterclaim, they further
alleged that on July 30, 1951, Paulina and Cipriana Yaeso,
as the only surviving heirs of Francisco Yaeso, executed a
public instrument of sale in favor of the spouses Fidel
Esparcia and Paulina Sienes, the said sale having been
registered together with an affidavit of adjudication executed
by Paulina and Cipriana on July 18, 1951, as sole surviving
heirs of the aforesaid deceased; that since then the
Esparcias had been in possession of the property as owners.
From the above decision the Sienes spouses interposed the
 present appeal, their principal contentions being, firstly, that
the lower court erred in holding that Lot 3368 of the
Cadastral Survey of Ayuquitan was a reservable property;
secondly, in annuling the sale of said lot executed by Andrea
Gutang in their favor; and lastly, in holding that Cipriana
Yaeso, as reservee, was entitled to inherit said land.
 As held by the trial court, it is clear upon the facts already
stated, that the land in question was reservable property.
Francisco Yaeso inherited it by operation of law from his
father Saturnino, and upon Francisco's death, unmarried and
without descendants, it was inherited, in turn, by his mother,
 Andrea Gutang. The latter was, therefore, under obligation to
reserve it for the benefit of relatives within the third degree
belonging to the line from which said property came, if any
survived her.  The record discloses in this connection that
 Andrea Gutang died on December 13, 1951, the lone
reservee surviving her being Cipriana Yaeso who died only
on January 13, 1952 (Exh. 10).
In connection with reservable property, the weight of opinion
is that the reserva creates two resolutory conditions, namely,
(1) the death of the ascendant obliged to reserve and (2) the
survival, at the time of his death, of relatives within the third
degree belonging to the line from which the property came (6
Manresa 268-269; 6 Sanchez Roman 1934). The Court has
held in connection with this matter that the reservista has the
legal title and dominion to the reservable property but subject
to a resolutory condition; that he is like a life usufructuary of
88
Wills & Succession/ Atty Uribe
In the instant case, the records will show that in the
settlement of the testate estate of Maria Lizares, the
executrix, Eustaquia Lizares submitted on January 8, 1971, a
project of partition in which the parcels of land, subject
matters of the complaint for reconveyance, were included as
property of the estate and assigned exclusively to Eustaquia
as a devisee of Maria Lizares. In accordance with said
project of partition which was approved by the probate court,
Encarnacion Lizares Vda. de Panlilio, Remedios Lizares Vda.
de Guinto, Felicidad Paredes Llopez, Rosario Paredes
Mendoza and Eustaquia Lizares executed an Agreement of
Partition and Subdivision on November 28, 1972, whereby
they agreed to terminate their co-ownership over Lots Nos.
550, 514, 553, 1287-C of SWO-7446 and 552 covered by
Transfer Certificates of Title Nos. T-65004, T-65005, T-
65006, T-65007 and T-65008. These facts taken altogether
show that the Lizares sisters recognized the decree of
partition sanctioned by the probate court and in fact reaped
the fruits thereof.
Hence, they are now precluded from attacking the validity of
the partition or any part of it in the guise of a complaint for
reconveyance. A party cannot, in law and in good conscience
be allowed to reap the fruits of a partition, agreement or
 judgment and repudiate what does not suit him. 39 Thus,
where a piece of land has been included in a partition and
there is no allegation that the inclusion was effected through
improper means or without petitioner's knowledge, the
partition barred any further litigation on said title and
operated to bring the property under the control and
 jurisdiction of the court for its proper disposition according to
the tenor of the partition. 40 The question of private
respondents' title over the lots in question has been
concluded by the partition and became a closed matter.
 A final decree of distribution of the estate of a deceased
person vests the title to the land of the estate in the
distributees. If the decree is erroneous, it should be corrected
by opportune appeal, for once it becomes final, its binding
effect is like any other judgment in rem, unless properly set
aside for lack of jurisdiction or fraud. Where the court has
validly issued a decree of distribution and the same has
become final, the validity or invalidity of the project of
partition becomes irrelevant. 41
It is a fundamental concept in the origin of every jural system,
a principle of public policy, that at the risk of occasional
errors, judgments of courts should become final at some
definite time fixed by law, interest rei publicae ut finis sit
litum. "The very object of which the courts were constituted
was to put an end to controversies." 42 The only instance
where a party interested in a probate proceeding may have a
final liquidation set aside is when he is left out by reason of
circumstances beyond his control or through mistake or
inadvertence not imputable to negligence. Even then, the
better practice to secure relief is the opening of the same by
proper motion within the reglementary period, instead of an
independent action, the effect of which if successful, would
be for another court or judge to throw out a decision or order
already final and executed and reshuffle properties long ago
distributed and disposed of. 43
The fundamental principle upon which the doctrine of res
 judicata rests is that parties ought not to be permitted to
litigate the same issue more than once, that, when a right or
fact has been judicially tried and determined by a court of
competent jurisdiction, or an opportunity for such trial has
been given, the judgment of the court, so long as it remains
- jann -
unreversed, should be conclusive upon the parties and those
in privity with then in law or estate. 44
Granting that res judicata has not barred the institution of
Civil Case No. 11639, the contention of Celsa L. Vda. de
Kilay ko et al. that they are conditional substitute heirs of
Eustaquia in the testate estate of Maria Lizares 46 is not
meritorious. While the allegation of the joint administrators
that paragraphs 10 and 11 of Maria Lizares' last will and
testament conceives of a fideicommissary substitution under
 Article 863 of the Civil Code is also baseless as said
paragraphs do not impose upon Eustaquia a clear obligation
to preserve the estate in favor of Celsa L. Vda. de Kilay ko, et
al., neither may said paragraphs be considered as providing
for a vulgar or simple substitution.
It should be remembered that when a testator merely names
an heir and provides that if such heir should die a second
heir also designated shall succeed, there is no
fideicommissary substitution. The substitution should then be
construed as a vulgar or simple substitution under Art. 859 of
the Civil Code but it shall be effective only if the first heir dies
before the testator. 47 In this case, the instituted heir,
Eustaquia, survived the testatrix, Maria Lizares. Hence, there
can be no substitution of heirs for, upon Maria Lizares death,
the properties involved unconditionally devolved upon
Eustaquia. Under the circumstances, the sisters of Maria
Lizares could only inherit the estate of Eustaquia by
operation of the law of intestacy
 With respect to the cancellation of the notice of lis pendens
on the properties involved, there is no merit in the contention
of Celsa L. Vda. de Kilay ko, et al., that the lower court acted
contrary to law and/or gravely abused its discretion in
cancelling the notice of lis pendens. The cancellation of such
a precautionary notice, being a mere incident in an action,
may be ordered by the court having jurisdiction over it at any
given time. 48 Under Sec. 24, Rule 14 of the Rules of
Court, a notice of lis pendens may be cancelled "after proper
showing that the notice is for the purpose of molesting the
adverse party, or that it is not necessary to protect the rights
of the party who caused it to be recorded" 49 In this case,
the lower court ordered the cancellation of said notice on the
principal reason that the administrators of the properties
involved are subject to the supervision of the court and the
said properties are under custodia legis. Therefore, such
notice was not necessary to protect the rights of Celsa L.
Vda. de Kilay ko, et al. More so in this case where it turned
out that their claim to the properties left by Eustaquia is
without any legal basis.
 Art. 872. The testator cannot impose any charge,
condition, or substitution whatsoever upon the
legitimes prescribed in this Code. Should he do so,
the same shall be considered as not imposed. (813a)
 Art. 873. Impossible conditions and those contrary
to law or good customs shall be considered as not
imposed and shall in no manner prejudice the heir,
even if the testator should otherwise provide. (792a)
 Art. 874. An absolute condition not to contract a first
or subsequent marriage shall be considered as not
 written unless such condition has been imposed on
the widow or widower by the deceased spouse, or by
the latter's ascendants or descendants.
104
Wills & Succession/ Atty Uribe
Nevertheless, the right of usufruct, or an allowance
or some personal prestation may be devised or
 bequeathed to any person for the time during which
he or she should remain unmarried or in
 widowhood. (793a)
 Art. 1183. Impossible conditions, those contrary to
good customs or public policy and those prohibited
 by law shall annul the obligation which depends
upon them. If the obligation is divisible, that part
thereof which is not affected by the impossible or
unlawful condition shall be valid.
The condition not to do an impossible thing shall be
considered as not having been agreed upon. (1116a)
 Art. 875. Any disposition made upon the condition
that the heir shall make some provision in his will in
favor of the testator or of any other person shall be
 void. (794a)
 Art. 876. Any purely potestative condition imposed
upon an heir must be fulfilled by him as soon as he
learns of the testator's death.
This rule shall not apply when the condition, already
complied with, cannot be fulfilled again. (795a)
 Art. 877. If the condition is casual or mixed, it shall
 be sufficient if it happens or be fulfilled at any time
 before or after the death of the testator, unless he
has provided otherwise.
Should it have existed or should it have been fulfilled
at the time the will was executed and the testator was
unaware thereof, it shall be deemed as complied
 with.
If he had knowledge thereof, the condition shall be
considered fulfilled only when it is of such a nature
that it can no longer exist or be complied with again.
(796)
 Art. 1034. In order to judge the capacity of the heir,
devisee or legatee, his qualification at the time of the
death of the decedent shall be the criterion.
In cases falling under Nos. 2, 3, or 5 of Article 1032,
it shall be necessary to wait until final judgment is
rendered, and in the case falling under No. 4, the
expiration of the month allowed for the report.
If the institution, devise or legacy should be
conditional, the time of the compliance with the
condition shall also be considered. (758a)
 Art. 879. If the potestative condition imposed upon
the heir is negative, or consists in not doing or not
giving something, he shall comply by giving a
security that he will not do or give that which has
 been prohibited by the testator, and that in case of
contravention he will return whatever he may have
- jann -
received, together with its fruits and interests.
(800a)
 Art. 880. If the heir be instituted under a suspensive
condition or term, the estate shall be placed under
administration until the condition is fulfilled, or
until it becomes certain that it cannot be fulfilled, or
until the arrival of the term.
The same shall be done if the heir does not give the
security required in the preceding article. (801a)
 Art. 881. The appointment of the administrator of
the estate mentioned in the preceding article, as well
as the manner of the administration and the rights
and obligations of the administrator shall be
governed by the Rules of Court. (804a)
 Art. 884. Conditions imposed by the testator upon
the heirs shall be governed by the rules established
for conditional obligations in all matters not
provided for by this Section. (791a)
Institution with a Term
 Art. 885. The designation of the day or time when
the effects of the institution of an heir shall
commence or cease shall be valid.
In both cases, the legal heir shall be considered as
called to the succession until the arrival of the
period or its expiration. But in the first case he shall
not enter into possession of the property until after
having given sufficient security, with the
intervention of the instituted heir. (805)
 Art. 878. A disposition with a suspensive term does
not prevent the instituted heir from acquiring his
rights and transmitting them to his heirs even before
the arrival of the term. (799a)
 Art. 880. If the heir be instituted under a suspensive
condition or term, the estate shall be placed under
administration until the condition is fulfilled, or
until it becomes certain that it cannot be fulfilled, or
until the arrival of the term.
The same shall be done if the heir does not give the
security required in the preceding article. (801a)
Modal Institutions
 Art. 882. The statement of the object of the
institution, or the application of the property left by
the testator, or the charge imposed by him, shall not
 be considered as a condition unless it appears that
such was his intention.
That which has been left in this manner may be
claimed at once provided that the instituted heir or
his heirs give security for compliance with the
105
Wills & Succession/ Atty Uribe
 wishes of the testator and for the return of anything
he or they may receive, together with its fruits and
interests, if he or they should disregard this
obligation. (797a)
 Art. 883. When without the fault of the heir, an
institution referred to in the preceding article
cannot take effect in the exact manner stated by the
testator, it shall be complied with in a manner most
analogous to and in conformity with his wishes.
If the person interested in the condition should
prevent its fulfillment, without the fault of the heir,
the condition shall be deemed to have been complied
 with. (798a)
XVII. SUBSTITUTION OF HEIRS
 Art. 857. Substitution is the appointment of another
heir so that he may enter into the inheritance in
default of the heir originally instituted. (n)
 Art. 858. Substitution of heirs may be:
(1) Simple or common;
(2) Brief or compendious;
(3) Reciprocal; or
(4) Fideicommissary. (n)
 Art. 859. The testator may designate one or more
persons to substitute the heir or heirs instituted in
case such heir or heirs should die before him, or
should not wish, or should be incapacitated to accept
the inheritance.
 A simple substitution, without a statement of the
cases to which it refers, shall comprise the three
mentioned in the preceding paragraph, unless the
testator has otherwise provided. (774)
 Art. 860. Two or more persons may be substituted
for one; and one person for two or more heirs. (778)
 Art. 861. If heirs instituted in unequal shares should
 be reciprocally substituted, the substitute shall
acquire the share of the heir who dies, renounces, or
is incapacitated, unless it clearly appears that the
intention of the testator was otherwise. If there are
more than one substitute, they shall have the same
share in the substitution as in the institution. (779a)
 Art. 862. The substitute shall be subject to the same
charges and conditions imposed upon the instituted
heir, unless and testator has expressly provided the
contrary, or the charges or conditions are personally
applicable only to the heir instituted. (780)
 Art. 863. A fideicommissary substitution by virtue of
 which the fiduciary or first heir instituted is
- jann -
entrusted with the obligation to preserve and to
transmit to a second heir the whole or part of the
inheritance, shall be valid and shall take effect,
provided such substitution does not go beyond one
degree from the heir originally instituted, and
provided further, that the fiduciary or first heir and
the second heir are living at the time of the death of
the testator. (781a)
 Art. 864. A fideicommissary substitution can never
 burden the legitime. (782a)
 Art. 865. Every fideicommissary substitution must
 be expressly made in order that it may be valid.
The fiduciary shall be obliged to deliver the
inheritance to the second heir, without other
deductions than those which arise from legitimate
expenses, credits and improvements, save in the
case where the testator has provided otherwise.
(783)
 Art. 866. The second heir shall acquire a right to the
succession from the time of the testator's death,
even though he should die before the fiduciary. The
right of the second heir shall pass to his heirs. (784)
 Art. 867. The following shall not take effect:
(1) Fideicommissary substitutions which are
not made in an express manner, either by
giving them this name, or imposing upon the
fiduciary the absolute obligation to deliver
the property to a second heir;
(2) Provisions which contain a perpetual
prohibition to alienate, and even a
temporary one, beyond the limit fixed in
article 863;
(3) Those which impose upon the heir the
charge of paying to various persons
successively, beyond the limit prescribed in
article 863, a certain income or pension;
(4) Those which leave to a person the whole
part of the hereditary property in order that
he may apply or invest the same according to
secret instructions communicated to him by
the testator. (785a)
 Art. 868. The nullity of the fideicommissary
substitution does not prejudice the validity of the
institution of the heirs first designated; the
fideicommissary clause shall simply be considered
as not written. (786)
 Art. 869. A provision whereby the testator leaves to a
person the whole or part of the inheritance, and to
another the usufruct, shall be valid. If he gives the
usufruct to various persons, not simultaneously, but
successively, the provisions of Article 863 shall
apply. (787a)
106
Wills & Succession/ Atty Uribe
Palacios vs. Ramirez
The main issue in this appeal is the manner of partitioning
the testate estate of Jose Eugenio Ramirez among the
principal beneficiaries, namely: his widow Marcelle Demoron
de Ramirez; his two grandnephews Roberto and Jorge
Ramirez; and his companion Wanda de Wrobleski.
The task is not trouble-free because the widow Marcelle is a
French who lives in Paris, while the companion Wanda is an
 Austrian who lives in Spain. Moreover, the testator provided
for substitutions.
Jose Eugenio Ramirez, a Filipino national, died in Spain on
December 11, 1964, with only his widow as compulsory heir.
His will was admitted to probate by the Court of First Instance
of Manila, Branch X, on July 27, 1965. Maria Luisa Palacios
was appointed administratrix of the estate. On June 23,
1966, the administratrix submitted a project of partition as
follows: the property of the deceased is to be divided into two
parts. One part shall go to the widow "en pleno dominio" in
satisfaction of her legitime; the other part or "free portion"
shall go to Jorge and Roberto Ramirez "en nuda propriedad."
Furthermore, one third (1/3) of the free portion is charged
with the widow's usufruct and the remaining two-third (2/3)
with a usufruct in favor of Wanda.
Jorge and Roberto opposed the project of partition on the
grounds: (a) that the provisions for vulgar substitution in favor
of Wanda de Wrobleski with respect to the widow's usufruct
and in favor of Juan Pablo Jankowski and Horacio V.
Ramirez, with respect to Wanda's usufruct are invalid
because of the first heirs (Marcelle and Wanda) survived the
testator; (b) that the provisions for fideicommissary
substitutions are also invalid because the first heirs are not
related to the second heirs or substitutes within the first
degree, as provided in Article 863 of the Civil Code; (c) that
the grant of a usufruct over real property in the Philippines in
favor of Wanda de Wrobleski, who is an alien, violates
Section 5, Article XIII of the Philippine Constitution; and that
(d) the proposed partition of the testator's interest in the
Santa Cruz (Escolta) Building between the widow Marcelle,
and the appellants, violates the testator's express will to give
this property to them. Nonetheless, the lower court approved
the project of partition in its order dated May 3, 1967. It is this
order which Jorge and Roberto have appealed to this Court.
The widow's legitime.
It is the one-third usufruct over the free portion which the
appellants question and justifiably so. It appears that the
court a quo approved the usufruct in favor of Marcelle
because the testament provides for a usufruct in her favor of
one-third of the estate. The court a quo erred for Marcelle
who is entitled to one-half of the estate "en pleno dominio" as
her legitime and which is more than what she is given under
the will is not entitled to have any additional share in the
estate. To give Marcelle more than her legitime will run
counter to the testator's intention for as stated above his
dispositions even impaired her legitime and tended to favor
Wanda.
The substitutions.
It may be useful to recall that "Substitution is the appointment
of another heir so that he may enter into the inheritance in
default of the heir originally instituted." (Art. 857, Civil Code.)
 And that there are several kinds of substitutions, namely:
simple or common, brief or compendious, reciprocal, and
- jann -
fideicommissary. (Art. 858, Civil Code.) According to
Tolentino, "Although the Code enumerates four classes,
there are really only two principal classes of substitutions: the
simple and the fideicommissary. The others are merely
variations of these two." (III Civil Code, p. 185 [1973]).
The simple or vulgar is that provided in Art. 859 of the Civil
Code which reads:
"ART. 859. The t estator may d esignate o ne
or more persons to substitute the heir or heirs
instituted in case such heir or heirs should die
before him, or should not wish, or should be
incapacitated to accept the inheritance.
"A simple substitution, without a statement of the
cases to which it refers, shall comprise the three
mentioned in the preceding paragraph, unless the
testator has otherwise provided."
The fideicommissary substitution is described in the Civil
Code as follows:
"ART. 863. A fideicommissary substitution by
virtue of which the fiduciary or first heir instituted is
entrusted with the obligation to preserve and to
transmit to a second heir the whole or part of
inheritance, shall be valid and shall take effect,
provided such substitution does not go beyond one
degree from the heir originally instituted, and
provided further that the fiduciary or first heir and
the second heir are living at time of the death of the
testator."
It will be noted that the testator provided for a vulgar
substitution in respect of the legacies of Roberto and Jorge
Ramirez, the appellants,
The appellants also question the "sustitucion vulgar y
fideicomisaria" in connection with Wanda's usufruct over two-
thirds of the estate in favor of Juan Pablo Jankowski and
Horace V. Ramirez.
They allege that the substitution in its vulgar aspect is void
because Wanda survived the testator or stated differently
because she did not predecease the testator. But dying
before the testator is not the only case for vulgar substitution
for it also includes refusal or incapacity to accept the
inheritance as provided in Art. 859 of the Civil Code, supra.
Hence, the vulgar substitution is valid.
 As regards the substitution in its fideicommissary aspect, the
appellants are correct in their claim that it is void for the
following reasons:
(a) The substitutes (Juan Pablo Jankowski and Horace
V. Ramirez) are not related to Wanda, the heir originally
instituted. Art. 863 of the Civil Code validates a
fideicommissary substitution "provided such substitution does
not go beyond one degree from the heir originally instituted."
"Scaevola, Maura, and Traviesas construe 'degree'
as designation, substitution, or transmission. The
Supreme Court of Spain has decidedly adopted this
construction. From this point of view, there can be
only one transmission or substitution, and the
substitute need not be related to the first heir.
Manresa, Morell, and Sanchez Roman, however,
construe the word 'degree' as generation, and the
present Code has obviously followed this
107
Wills & Succession/ Atty Uribe
interpretation, by providing that the substitution shall
not go beyond one degree 'from the heir originally
instituted.' The Code thus clearly indicates that the
second heir must be related to and be one
generation from the first heir.
"From this, it follows that the fideicommissary can
only be either a child or a parent of the first heir.
These are the only relatives who are one generation
or degree from the fiduciary." (Op. cit., pp. 193-
194.).
(b) There is no absolute duty imposed on Wanda to
transmit the usufruct to the substitutes as required by Arts.
865 and 867 of the Civil Code. In fact, the appellee admits
"that the testator contradicts the establishment of a
fideicommissary substitution when he permits the properties
subject of the usufruct to be sold upon mutual agreement of
the usufructuaries and the naked owners." (Brief, p. 26).
The usufruct of Wanda.
The court a quo upheld the validity of the usufruct given to
Wanda on the ground that the Constitution covers not only
succession by operation of law but also testamentary
succession. We are of the opinion that the Constitutional
provision which enables aliens to acquire private lands does
not extend to testamentary succession for otherwise the
prohibition will be for naught and meaningless. Any alien
would be able to circumvent the prohibition by paying money
to a Philippine landowner in exchange for a devise of a piece
of land.
This opinion notwithstanding, We uphold the usufruct in favor
of Wanda because a usufruct, albeit a real right, does not
vest title to the land in the usufructuary and it is the vesting of
title to land in favor of aliens which is proscribed by the
Constitution.
Crisologo vs. Singson
 Action for partition commenced by the spouses Consolacion
Florentino and Francisco Crisologo against Manuel Singson
in connection with a residential lot located at Plaridel St.,
Vigan, Ilocos Sur, with an area of approximately 193 square
meters, and the improvements existing thereon, covered by
Tax No. 10765-C. Their complaint alleged that Singson
owned one half proindiviso of said property and that
Consolacion Florentino owned the other half by virtue of the
provisions of the duly probated last will of Doña Leona
Singson, the original owner, and the project of partition
submitted to, and approved by the Court of First Instance of
Ilocos Sur in Special Proceeding No. 453; that plaintiffs had
made demands for the partition of said property, but
defendant refused to accede thereto, thus compelling them to
bring action.
Defendant's defense was that Consolacion Florentino was a
mere usufructuary of, and not owner of one half proindiviso of
the property in question, and that, therefore, she was not
entitled to demand partition thereof.
It is admitted that Doña Leona Singson, who died single on
January 13, 1948, was the owner of the property in question
at the time of her death. On July 31, 1951 she executed her
last will which was admitted to probate in Special Proceeding
No. 453 of the lower court whose decision was affirmed by
the Court of Appeals in G. R. No. 3605-R. At the time of the
- jann -
execution of the will her nearest living relatives were her
brothers Evaristo, Manuel and Dionisio Singson, and her
nieces Rosario, Emilia and Trinidad, and her grandniece
Consolacion, all surnamed Florentino.
The issue to be decided is whether the testamentary
disposition above-quoted provided for what is called
sustitución vulgar or for a sustitución fideicomisaria. This
issue is, we believe, controlled by the pertinent provisions of
the Civil Code in force in the Philippines prior to the effectivity
of the New Civil Code, in view of the fact that the testatrix
died on January 13, 1948. They are the following:
"ART. 774. The testator may designate one or more
persons to substitute the heir or heirs instituted in case
such heir or heirs should die before him, or should not wish
or should be unable to accept the inheritance.
"A simple substitution, without a statement of the cases to
which it is to apply, shall include the three mentioned in the
next preceding paragraph, unless the testator has
otherwise provided."
"ART. 781. Fidei-comissary substitutions by virtue of which
the heir is charged to preserve and transmit to a third
person the whole or part of the inheritance shall be valid
and effective, provided they do not go beyond the second
degree, or that they are made in favor of persons living at
the time of the death of the testator."
"ART. 785. The following shall be inoperative:
1. Fiduciary substitutions not made expressly, either
by giving them this name or by imposing upon the
fiduciary the absolute obligation of delivering the
property to a second heir." * * *.
In accordance with the first legal provision quoted above, the
testator may not only designate the heirs who will succeed
him upon his death, but also provide for substitutes in the
event that said heirs do not accept or are in no position to
accept the inheritance or legacies, or die ahead of him.
The testator may also bequeath his properties to a particular
person with the obligation, on the part of the latter, to deliver
the same to another person, totally or partially, upon the
occurrence of a particular event.
It is clear that the particular testamentary clause under
consideration provides for a substitution of the heir named
therein in this manner: that upon the death of Consolacion
Florentino-whether this occurs before or after that of the
testatrix-the property bequeathed to her shall be delivered
("se dará") or shall belong in equal parts to the testatrix's
three brothers, Evaristo, Manuel and Dionisio, or their forced
heirs, should anyone of them the ahead of Consolacion
Florentino. If this clause created what is known as sustitución
vulgar, the necessary result would be that Consolacion
Florentino, upon the death of the testatrix, became the owner
of one undivided half of the property, but if it provided for a
sustitución fideicomisaria, she would have acquired nothing
more than usufructuary rights over the same half. In the
former case, she would undoubtedly be entitled to partition,
but not in the latter. As Manresa says, if the fiduciary did not
acquire full ownership of the property bequeathed, by will, but
mere usufructuary rights thereon until the time came for him
to deliver said property to the fideicomisario, it is obvious that
the nude ownership over the property, upon the death of the
testatrix, passed to and was acquired by another person, and
108
Wills & Succession/ Atty Uribe
that person cannot be other than the fideicomisarrio. (6
Manreza, p. 145)
It seems to be of the essence of a fideicommissary
substitution that an obligation be clearly imposed upon the
first heir to preserve and transmit to another the whole or part
of the estate bequeathed to him, upon his death or upon the
happening of a particular event. For this reason Art. 785 of
the old Civil Code provides that a fideicommissary
substitution shall have no effect unless it is made expressly
("de una manera expresa") either by giving it such name, or
by imposing upon the first heir the absolute obligation
("obligación terminante") to deliver the inheritance to a
substitute or second heir.
 A careful perusal of the testamentary clause under
consideration shows that the substitution of heirs provided for
therein is not expressly made of the fideicommissary kind,
nor does it contain a clear statement to the effect that
appellee, during her lifetime, shall only enjoy usufructuary
rights over the property bequeathed to her, naked ownership
thereof being vested in the brothers of the testatrix. As
already stated, it merely provides that upon appellee's death-
whether this happens before or after that of the testatrix-her
share shall belong to the brothers of the testatrix.
In the light of the foregoing, we believe, and so hold, that the
last will of the deceased Dña. Leona Singson established a
mere sustitución vulgar, the substitution of Consolacion
Florentino by the brothers of the testatrix: to be effective or to
take place upon the death of the former, whether it happens
before or after that of the testatrix.
In view of the foregoing, the appealed judgment is affirmed,
with costs.
 Art. 870. The dispositions of the testator declaring
all or part of the estate inalienable for more than
twenty years are void. (n)
XVII. LEGACIES AND DEVISEES
 Art. 924. All things and rights which are within the
commerce of man be bequeathed or devised. (865a)
 Art. 925. A testator may charge with legacies and
devises not only his compulsory heirs but also the
legatees and devisees.
The latter shall be liable for the charge only to the
extent of the value of the legacy or the devise
received by them. The compulsory heirs shall not be
liable for the charge beyond the amount of the free
portion given them. (858a)
 Art. 926. When the testator charges one of the heirs
 with a legacy or devise, he alone shall be bound.
Should he not charge anyone in particular, all shall
 be liable in the same proportion in which they may
inherit. (859)
 Art. 927. If two or more heirs take possession of the
estate, they shall be solidarily liable for the loss or
destruction of a thing devised or bequeathed, even
- jann -
though only one of them should have been negligent.
(n)
 Art. 928. The heir who is bound to deliver the legacy
or devise shall be liable in case of eviction, if the
thing is indeterminate and is indicated only by its
kind. (860)
 Art. 929. If the testator, heir, or legatee owns only a
part of, or an interest in the thing bequeathed, the
legacy or devise shall be understood limited to such
part or interest, unless the testator expressly
declares that he gives the thing in its entirety. (864a)
 Art. 930. 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. (862a)
 Art. 931. If the testator orders that a thing belonging
to another be acquired in order that it be given to a
legatee or devisee, the heir upon whom the
obligation is imposed or the estate must acquire it
and give the same to the legatee or devisee; but if the
owner of the thing refuses to alienate the same, or
demands an excessive price therefor, the heir or the
estate shall only be obliged to give the just value of
the thing. (861a)
 Art. 932. The legacy or devise of a thing which at the
time of the execution of the will already belonged to
the legatee or devisee shall be ineffective, even
though another person may have some interest
therein.
If the testator expressly orders that the thing be
freed from such interest or encumbrance, the legacy
or devise shall be valid to that extent. (866a)
 Art. 933. If the thing bequeathed belonged to the
legatee or devisee at the time of the execution of the
 will, the legacy or devise shall be without effect, even
though it may have subsequently alienated by him.
If the legatee or devisee acquires it gratuitously after
such time, he can claim nothing by virtue of the
legacy or devise; but if it has been acquired by
onerous title he can demand reimbursement from
the heir or the estate. (878a)
 Art. 934. If the testator should bequeath or devise
something pledged or mortgaged to secure a
recoverable debt before the execution of the will, the
estate is obliged to pay the debt, unless the contrary
intention appears.
The same rule applies when the thing is pledged or
mortgaged after the execution of the will.
109
Wills & Succession/ Atty Uribe
to make the surviving spouse an intestate heir of the parent-
in-law, it would have so provided in the Code.
The aforesaid provision of law 3 refers to the estate of the
deceased spouse in which case the surviving spouse (widow
or widower) is a compulsory heir. It does not apply to the
estate of a parent-in-law. Indeed, the surviving spouse is
considered a third person as regards the estate of the parent-
in-law
By the same token, the provision of Article 999 of the Civil
Code aforecited does not support petitioner's claim. A careful
examination of the said Article confirms that the estate
contemplated therein is the estate of the deceased spouse.
The estate which is the subject matter of the intestate estate
proceedings in this case is that of the deceased Petra V.
Rosales, the mother-in-law of the petitioner. It is from the
estate of Petra V. Rosales that Macikequerox Rosales draws
a share of the inheritance by the right of representation as
provided by Article 981 of the Code.
 Article 971 explicitly declares that Macikequerox Rosales is
called to succession by law because of his blood relationship.
He does not succeed his father, Carterio Rosales (the person
represented) who predeceased his grandmother, Petra
Rosales, but the latter whom his father would have
succeeded. Petitioner cannot assert the same right of
representation as she has no filiation by blood with her
mother-in-law.
Petitioner however contends that at the time of the death of
her husband Carterio Rosales he had an inchoate or
contingent right to the properties of Petra Rosales as
compulsory heir. Be that as it may, said right of her husband
was extinguished by his death that is why it is their son
Macikequerox Rosales who succeeded from Petra Rosales
by right of representation. He did not succeed from his
deceased father, Carterio Rosales.
On the basis of the foregoing observations and conclusions,
We find it unnecessary to pass upon the second question
posed by the petitioner. Accordingly, it is Our considered
opinion, and We so hold, that a surviving spouse is not an
intestate heir of his or her parent-in-law. WHEREFORE, in
view of the foregoing, the Petition is hereby DENIED for lack
of merit, with costs against the petitioner. Let this case be
remanded to the trial court for further proceedings.
 Art. 962. In every inheritance, the relative nearest in
degree excludes the more distant ones, saving the
right of representation when it properly takes place.
Relatives in the same degree shall inherit in equal
shares, subject to the provisions of article 1006 with
respect to relatives of the full and half blood, and of
 Article 987, paragraph 2, concerning division
 between the paternal and maternal lines. (912a)
Delos Santos vs. Dela Cruz
From the record of this case, we cull the following salient
facts: On May 21, 1965, Gertrudes de los Santos filed a
complaint for specific performance against Maximo de la
Cruz, alleging, among others, that on August 24, 1963, she
and several co-heirs, including the defendant, executed an
extrajudicial partition agreement (a copy of which was
- jann -
attached to the complaint) over a certain portion of land with
an area of around 20,000 sq. m.; that the parties thereto had
agreed to adjudicate three (3) lots to the defendant, in
addition to his corresponding share, on condition that the
latter would undertake the development and subdivision of
the estate which was the subject matter of the agreement, all
expenses in connection therewith to be defrayed from the
proceeds of the sale of the aforementioned three (3) lots; that
in spite of demands by the plaintiff, by the other co-heirs, and
by the residents of the subdivision, the defendant refused to
perform his aforesaid obligation although he had already sold
the aforesaid lots. The plaintiff prayed the court to order the
defendant to comply with his obligation under the extra-
 judicial partition agreement and to pay the sum of P1,000.00
as attorney's fees and costs.
In his answer, the defendant admitted the due execution of
the extrajudicial partition agreement, but set up the
affirmative defenses that the plaintiff had no cause of action
against him because the said agreement was void with
respect to her, for the reason that the plaintiff was not an heir
of Pelagia de la Cruz, deceased owner of the property, and
was included in the extrajudicial partition agreement by
mistake; and that although he had disposed of the three lots
adjudicated to him, nevertheless the proceeds of the sale
were not sufficient to develop and improve properly the
subdivided estate. The answer contained a counterclaim
wherein the defendant alleged that the plaintiff had likewise
sold her share in the estate for P10,000.00, and that the
extrajudicial partition agreement being void insofar as the
latter was concerned, he was entitled to one-fourth (1/4) of
the proceeds as his share by way of reversion. The
defendant prayed that the complaint be dismissed; that the
extrajudicial partition agreement be declared void with
respect to the plaintiff; and, on his counterclaim, that the
plaintiff be ordered to pay him the sum of P2,500.00.
In its decision dated November 3, 1966, the court a quo held
that the defendant, being a party to the extrajudicial partition
agreement, was estopped from raising in issue the right of
the plaintiff to inherit from the decedent Pelagia de la Cruz;
hence, he must abide by the terms of the agreement. The
court ordered the defendant "to perform his obligations to
develop Lots 1, 2 and 3 of (LRC) Psd-29561 as described on
page 2 of the Extrajudicial Partition Agreement" (meaning,
apparently, that the defendant should develop the subdivision
because said Lots 1, 2 and 3 were intended to be sold for
this purpose), and to pay the plaintiff the sum of P2,000.00
as actual damages, the sum of P500.00 as attorney's fees,
and the costs. No disposition was made of defendant's
counterclaim. The defendant filed a "Motion for New Trial' but
the same was denied. Hence, this appeal.
In the stipulation of facts submitted to the court below, the
parties admit that the owner of the estate, subject matter of
the extrajudicial partition agreement, was Pelagia de la Cruz,
who died intestate on October 16, 1962 that defendant-
appellant is a nephew of the said decedent; that plaintiff-
appellee is a grandniece of Pelagia de la Cruz, her mother,
Marciana de la Cruz, being a niece of the said Pelagia de la
Cruz; that plaintiff-appellee's mother died on September 22,
1935, thus pre-deceasing Pelagia de la Cruz; and that the
purpose of the extrajudicial partition agreement was to divide
and distribute the estate among the heirs of Pelagia de la
Cruz.
115
Wills & Succession/ Atty Uribe
The pivotal question is whether, in the premises, plaintiff-
appellee is an heir of the decedent. We are convinced that
she is not. Plaintiff-appellee being a mere grandniece of
Pelagia de la Cruz, she could not inherit from the latter by
right of representation.
"ART. 972. The right of representation takes
place in the direct descending line, but never in the
ascending.
"In the collateral line, it takes place only in favor of
the children of brothers or sisters, whether they be
of the full or half blood."
Much less could plaintiff-appellee inherit in her own right.
"ART. 962. In every inheritance, the relative
nearest in degree excludes the more distant ones,
saving the right of representation when it properly
takes place . . ."
In the present case, the relatives "nearest in degree" to
Pelagia de la Cruz are her nephews and nieces, one of
whom is defendant-appellant. Necessarily, plaintiff-appellee,
a grandniece, is excluded by law from the inheritance.
But what is the legal effect of plaintiff-appellee's inclusion and
participation in the extrajudicial partition agreement insofar as
her right to bring the present action is concerned? They did
not confer upon her the right to institute this action. The
express purpose of the extrajudicial partition agreement, as
admitted by the parties in the stipulation of facts, was to
divide the estate among the heirs of Pelagia de la Cruz.
Indeed, the said agreement itself states that plaintiff-appellee
was participating therein in representation of her deceased
mother.
It is quite apparent that in executing the partition agreement,
the parties thereto were laboring under the erroneous belief
that plaintiff-appellee was one of the legal heirs of Pelagia de
la Cruz. Plaintiff-appellee not being such an heir, the partition
is void with respect to her, pursuant to Article 1105 of the
Civil Code, which reads:
"ART. 1105. A partition which includes a
person believed to be an heir, but who is not, shall
be void only with respect to such person."
Partition of property affected between a person entitled to
inherit from the deceased owner thereof and another person
who thought he was an heir, when he was not really and
lawfully such, to the prejudice of the rights of the true heir
designated by law to succeed the deceased, is null and void
(De Torres vs. De Torres, et al., 28 Phil. 49). A fortiori,
plaintiff-appellee could hardly derive from the agreement the
right to have its terms enforced.
The extrajudicial partition agreement being void with respect
to plaintiff-appellee, she may not be heard to assert estoppel
against defendant-appellant. Estoppel cannot be predicated
on a void contract (17 Am. Jur. 605), or on acts which are
 prohibited by law or are against public policy  sisters of the deceased survive, they shall inherit
The award of actual damages in favor of plaintiff-appellee
cannot be sustained in view of the conclusion we have
arrived at above. Furthermore, actual or compensatory
damages must be duly proved (Article 2199, Civil Code).
- jann -
Here, no proof of such damages was presented inasmuch as
the case was decided on a stipulation of facts and no
evidence was adduced before the trial court.
Such being the case, defendant-appellant is apparently
correct in his contention that the lower court erred in not
passing on his counterclaim and, consequently, in not
sentencing appellee to turn over to him his corresponding
share of said portion received by appellee under the void
partition. Remote relatives or unrelated persons who unduly
received and took possession of the property of a deceased
person without any right, by virtue of a null and void partition,
must restore it to the legitimate successor in the inheritance
(De Torres vs. De Torres, et al., supra). Of course, if such
share has already been disposed of by appellee to a bona
fide purchaser, as seems to be indicated in the unproven
allegations of the counterclaim, We cannot render judgment
awarding any specific amount to defendant-appellant as his
proportionate share of the proceeds of such sale for the
reason that, as already stated above, this aspect of the
counterclaim has not been touched upon in the stipulation of
facts nor has it been supported by evidence which appellant
should have presented in the lower court but did not.
C. Right Representation
 Art. 970. Representation is a right created by fiction
of law, by virtue of which the representative is raised
to the place and the degree of the person
represented, and acquires the rights which the latter
 would have if he were living or if he could have
inherited. (942a)
 Art. 971. The representative is called to the
succession by the law and not by the person
represented. The representative does not succeed
the person represented but the one whom the person
represented would have succeeded. (n)
 Art. 972. The right of representation takes place in
the direct descending line, but never in the
ascending.
In the collateral line, it takes place only in favor of
the children of brothers or sisters, whether they be
of the full or half blood. (925)
 Art. 973. In order that representation may take
place, it is necessary that the representative himself
 be capable of succeeding the decedent. (n)
 Art. 974. Whenever there is succession by
representation, the division of the estate shall be
made per stirpes, in such manner that the
representative or representatives shall not inherit
more than what the person they represent would
inherit, if he were living or could inherit. (926a)
 Art. 975. When children of one or more brothers or
from the latter by representation, if they survive
 with their uncles or aunts. But if they alone survive,
they shall inherit in equal portions. (927)
116
Wills & Succession/ Atty Uribe
 Art. 976. A person may represent him whose
inheritance he has renounced. (928a)
 Art. 977. Heirs who repudiate their share may not be
represented. (929a)
 Art. 982. The grandchildren and other descendants
shall inherit by right of representation, and if any
one of them should have died, leaving several heirs,
the portion pertaining to him shall be divided among
the latter in equal portions. (933)
 Art. 902. The rights of illegitimate children set forth
in the preceding articles are transmitted upon their
death to their descendants, whether legitimate or
illegitimate. (843a)
 Art. 992. An illegitimate child has no right to inherit
ab intestato from the legitimate children and
relatives of his father or mother; nor shall such
children or relatives inherit in the same manner
from the illegitimate child. (943a)
 Art. 1005. Should brothers and sisters survive
together with nephews and nieces, who are the
children of the descendant's brothers and sisters of
the full blood, the former shall inherit per capita,
and the latter per stirpes. (948)
 Art. 1006. Should brother and sisters of the full
 blood survive together with brothers and sisters of
the half blood, the former shall be entitled to a share
double that of the latter. (949)
 Art. 1007. In case brothers and sisters of the half
 blood, some on the father's and some on the
mother's side, are the only survivors, all shall inherit
in equal shares without distinction as to the origin of
the property. (950)
 Art. 1008. Children of brothers and sisters of the
half blood shall succeed per capita or per stirpes, in
accordance with the rules laid down for the brothers
and sisters of the full blood. (915)
Teotica vs. Del Val Chan
Maria Mortera y Balsalobre Vda. de Aguirre died on July 14,
1955 in the City of Manila leaving properties worth
P600,000.00. She left a will written in Spanish which she
executed at her residence in No. 2 Legarda St., Quiapo,
Manila. She affixed her signature at the bottom of the will and
on the left margin of each and every page thereof in the
presence of Pilar Borja, Pilar G. Sanchez, and Modesto
Formilleza, who in turn affixed their signatures below the
attestation clause and on the left margin of each and every
page of the will in the presence of the testatrix and of each
other. Said will was acknowledged before Notary Public
Niceforo S. Agaton by the testatrix and her witnesses.
 Among the many legacies and devises made in the will was
one of P20,000.00 to Rene A. Teotico, married to the
testatrix's niece named Josefina Mortera. To said spouses
- jann -
the testatrix left the usufruct of her interest in the Calvo
building, while the naked ownership thereof she left in equal
parts to her grandchildren who are the legitimate children of
said spouses. The testatrix also instituted Josefina Mortera
as her sole and universal heir to all the remainder of her
properties not otherwise disposed of in the will.
 Ana del Val Chan, claiming to be an adopted child of
Francisca Mortera, a deceased sister of the testatrix, as well
as an acknowledged natural child of Jose Mortera, a
deceased brother of the same testatrix, filed on September 2,
1955 an opposition to the probate of the will alleging the
following grounds: (1) said will was not executed as required
by law; (2) the testatrix was physically and mentally
incapable to execute the will at the time of its execution; and
(3) the will was executed under duress, threat or influence of
fear.
 After the parties had presented their evidence, the probate
court rendered its decision on November 10, 1960 admitting
the will to probate but declaring the disposition made in favor
of Dr. Rene Teotico void with the statement that the portion
to be vacated by the annulment should pass to the testatrix's
heirs by way of intestate succession.
The motions for reconsideration above adverted to having
been denied, both petitioner and oppositor appealed from the
decision, the former from that portion which nullifies the
legacy in favor of Dr. Rene Teotico and declares the vacated
portion as subject of succession in favor of the legal heirs,
and the latter from that portion which admits the will to
probate. And in this instance both petitioner and oppositor
assign several error which, stripped of non-essentials, may
be boiled down to the following: (1) Has oppositor Ana del
Val Chan the right to intervene in this proceeding?; (2) Has
the will in question been duly admitted to probate?; and (3)
Did the probate court commit an error in passing on the
intrinsic validity of the provisions of the will and in
determining who should inherit the portion to be vacated by
the nullification of the legacy made in favor of Dr. Rene
Teotico?
It is a well-settled rule that in order that a person may be
allowed to intervene in a probate proceeding he must have
an interest in the estate, or in the will, or in the property to be
affected by it either as executor or as a claimant of the estate
(Ngo The Hua vs. Chung Kiat Hua, et al., L-17091,
September 30, 1963); and an interested party has been
defined as one who would be benefitted by the estate such
as an heir or one who has a claim against the estate like a
creditor (Idem.). On the other hand, in Saguinsin vs.
Lindayag, et al., L-17750, December 17, 1962, this Court
said:
"According to Section 2, Rule 80 of the Rules of Court, a
petition for letters of administration must be filed by an
'interested person.' An interested party has been defined in
this connection as one who would be benefitted by the
estate, such as an heir, or one who has a claim against the
estate, such as a creditor (Intestate Estate of Julio
Magbanwa 40 O.G., 1171). And it is well settled in this
 jurisdiction that in civil actions as well as special proceedings,
the interest required in order that a person may be a party
thereto must be material and direct, and not merely indirect
or contingent. (Trillana vs. Crisostomo, G. R. No. L-3370,
 August 22, 1951; Rapinosa vs. Barrion, 70 Phil. 311)."
117
Wills & Succession/ Atty Uribe
to recover his mother's supposed intestate share in Yangco's
estate?
To answer that question, it is necessary to ascertain
Yangco's filiation. The trial court found that Yangco "a su
muerte tambien le sbrevivieron Luis y Paz appellidados
Yangco, hermanos naturales reconocidos por su padre
natural Luis R. Yangco". The basis of the trial court's
conclusion that Teodoro R. Yangco was an acknowledged
natural child and not a legitimate child was the statement in
the will of his father, Luis Rafael Yangco, dated June 14,
1907, that Teodoro and his three other children were his
acknowledged natural children.
On the other hand, the children of Ramona Arguelles and
Tomas Corpus are presumed to be legitimate. A marriage is
presumed to have taken place between Ramona and Tomas.
Semper praesumitur pro matrimonio. It is disputably
presumed "That a man and a woman deporting themselves
as husband and wife have entered into a lawful contract of
marriage"; "that a child born in lawful wedlock, there being no
divorce, absolute or from bed and board, is legitimate", and
"that things have happened according to the ordinary course
of nature and the ordinary habits of life" (Sec. 5[z], [bb] and
[cc], Rule 131, Rules of Court).
Since Teodoro R. Yangco was an acknowledged natural
child or was illegitimate and since Juanita Corpus was the
legitimate child of Jose Corpus, himself a legitimate child, we
hold that appellant Tomas Corpus has no cause of action for
the recovery of the supposed hereditary share of his mother,
Juanita Corpus, as a legal heir, in Yangco's estate. Juanita
Corpus was not a legal heir of Yangco because there is no
reciprocal succession between legitimate and illegitimate
relatives. The trial court did not err in dismissing the
complaint of Tomas Corpus.
 Appellant Corpus concedes that if Teodoro R. Yangco was a
natural child, he (Tomas Corpus) would have no legal
personality to intervene in the distribution of Yangco's estate
(p. 8, appellant's brief).
The rule in article 943 is now found in article 992 of the Civil
Code which provides that "an illegitimate child has no right to
inherit ab intestato from the legitimate children and relatives
of his father or mother; nor shall such children or relatives
inherit in the same manner from the illegitimate child".
That rule is based on the theory that the illegitimate child is
disgracefully looked upon by the legitimate family while the
legitimate family is, in turn, hated by the illegitimate child.
The law does not recognize the blood tie and seeks to avoid
further grounds of resentment (7 Manresa, Codigo Civil, 7th
Ed., pp. 185-6).
Under articles 944 and 945 of the spanish Civil Code, "if an
acknowledged natural or legitimated child should die without
issue, either legitimate or acknowledged, the father or mother
who acknowledged such child shall succeed to its entire
estate; and if both acknowledged it and are alive, they shall
inherit from it share and share alike. In default of natural
ascendants, natural and legitimated children shall be
succeeded by their natural brothers and sisters in
accordance with the rules established for legitimate brothers
and sisters." Hence, Teodoro R. Yangco's half brothers on
the Corpus side, who were legitimate, had no right to
succeed to his estate under the rules of intestacy.
- jann -
Following the rule in article 992, formerly article 943, it was
held that the legitimate relatives of the mother cannot
succeed her illegitimate child. By reason of that same rule,
the natural child cannot represent his natural father in the
succession to the estate of the legitimate grandparent
(Llorente vs. Rodriguez, 10 Phil. 585; Centeno vs. Centeno,
52 Phil. 322; Allarde vs. Abaya, 57 Phil. 909). The natural
daughter cannot succeed to the estate of her deceased
uncle, a legitimate brother of her natural mother (Anuran vs.
 Aquino and Ortiz, 38 Phil. 29).
Leonardo vs. CA
From the record, it appears that Francisca Reyes who died
intestate on July 12, 1942 was survived by two (2) daughters,
Maria and Silvestra Cailles, and a grandson, Sotero
Leonardo, the son of her daughter, Pascuala Cailles who
predeceased her. Sotero Leonardo died in 1944, while
Silvestra Cailles died in 1949 without any issue.
On October 29, 1964, petitioner Cresenciano Leonardo,
claiming to be the son of the late Sotero Leonardo, filed a
complaint for ownership of properties, sum of money and
accounting in the Court of First Instance of Rizal seeking
 judgment (1) to be declared one of the lawful heirs of the
deceased Francisca Reyes, entitled to one-half share in the
estate of said deceased jointly with defendant, private
respondent herein, Maria Cailles, (2) to have the properties
left by said Francisca Reyes, described in the complaint,
partitioned between him and defendant Maria Cailles, and (3)
to have an accounting of all the income derived from said
properties from the time defendants took possession thereof
until said accounting shall have been made, delivering to him
his share therein with legal interest.
 Answering the complaint, private respondent Maria Cailles
asserted exclusive ownership over the subject properties and
alleged that petitioner is an illegitimate child who cannot
succeed by right of representation. For his part, the other
defendant, private respondent James Bracewell, claimed that
said properties are now his by virtue of a valid and legal deed
of sale which Maria Cailles had subsequently executed in his
favor. These properties were allegedly mortgaged to
respondent Rural Bank of Parañaque, Inc. sometime in
September 1963.
I
"RESPONDENT COURT ERRED IN HOLDING
THAT THE PROPERTIES IN QUESTION ARE THE
EXCLUSIVE PROPERTIES OF PRIVATE
RESPONDENTS.
II
"RESPONDENT COURT ERRED IN HOLDING
THAT PETITIONER HAS NOT ESTABLISHED HIS
FILIATION.
III
"RESPONDENT COURT ERRED IN HOLDING
THAT PETITIONER, AS THE GREAT GRANDSON
OF FRANCISCA REYES, HAS NO LEGAL RIGHT
TO INHERIT BY REPRESENTATION."
To begin with, the Court of Appeals found the subject
properties to be the exclusive properties of the private
respondents.
123
Wills & Succession/ Atty Uribe
"After declaring it in her name, Maria Cailles paid
the realty taxes starting from 1918 up to 1948.
Thereafter as she and her son Narciso Bracewell,
left for Nueva Ecija, Francisca Reyes managed the
property and paid the realty tax of the land.
However, for unexplained reasons, she paid and
declared the same in her own name. Because of
this, plaintiff decided to run after this property,
erroneously thinking that as the great grandson of
Francisca Reyes, he had some proprietary right
over the same.
"After declaring it in her name, Maria Cailles likewise paid the
realty tax in 1917 and continued paying the same up to 1948.
Thereafter when she and her son, Narciso Bracewell,
established their residence in Nueva Ecija, Francisca Reyes
administered the property and like in the first case, declared
in 1949 the property in her own name. Thinking that the
property is the property of Francisca Reyes, plaintiff filed the
instant complaint, claiming a portion thereof as the same
allegedly represents the share of his father.
illegitimate child who has no right to inherit ab intestato from
the legitimate children and relatives of his father, like the
deceased Francisca Reyes. (Article 992, Civil Code of the
Philippines.)
2. Estate of Illegitimate decedent
a. Legitimate children and descendant
 Art. 903. The legitime of the parents who have an
illegitimate child, when such child leaves neither
legitimate descendants, nor a surviving spouse, nor
illegitimate children, is one-half of the hereditary
estate of such illegitimate child. If only legitimate or
illegitimate children are left, the parents are not
entitled to any legitime whatsoever. If only the
 widow or widower survives with parents of the
illegitimate child, the legitime of the parents is one-
fourth of the hereditary estate of the child, and that
of the surviving spouse also one-fourth of the estate.
(n)

"Going to the issue of filiation, plaintiff claims that he

 
is the son of Sotero Leonardo, the son of one of the
daughters (Pascuala) of Francisca Reyes. He
further alleges that since Pascuala predeceased
Francisca Reyes, and that his father, Sotero, who
subsequently died in 1944, survived Francisca  
Reyes, plaintiff can consequently succeed to the
estate of Francisca Reyes by right of representation.
"Since his supposed right will either rise or fall on
the proper evaluation of this vital evidence, We have
minutely scrutinized the same, looking for that vital
link connecting him to the family tree of the
deceased Francisca Reyes. However, this piece of
evidence does not in any way lend credence to his
tale.  
"This is because the name of the child described in
the birth certificate is not that of the plaintiff but a
certain 'Alfredo Leonardo' who was born on
 
September 13, 1938 to Sotero Leonardo and
Socorro Timbol. Other than his bare allegation,
plaintiff did not submit any durable evidence
showing that the 'Alfredo Leonardo' mentioned in
the birth certificate is no other than he himself.
Thus, even without taking time and space to go into
further details, We may safely conclude that plaintiff  
failed to prove his filiation which is a fundamental
requisite in this action where he is claiming to be an
heir in the inheritance in question." 4  
That is likewise a factual finding which may not be disturbed
in this petition for review in the absence of a clear showing  
that said finding is not supported by substantial evidence, or
that there was a grave abuse of discretion on the part of the  
court making the finding of fact.
Referring to the third assignment of error, even if it is true
that petitioner is the child of Sotero Leonardo, still he cannot,  
by right of representation, claim a share of the estate left by
the deceased Francisca Reyes considering that, as found
again by the Court of Appeals, he was born outside wedlock
as shown by the fact that when he was born on September
13, 1938, his alleged putative father and mother were not yet
married, and what is more, his alleged father's first marriage
was still subsisting. At most, petitioner would be an
Art. 987. In default of the father and mother, the
ascendants nearest in degree shall inherit.
Should there be more than one of equal degree
belonging to the same line they shall divide the
inheritance per capita; should they be of different
lines but of equal degree, one-half shall go to the
paternal and the other half to the maternal
ascendants. In each line the division shall be made
per capita. (937)
SUBSECTION 3. - Illegitimate Children
Art. 988. In the absence of legitimate descendants or
ascendants, the illegitimate children shall succeed to
the entire estate of the deceased. (939a)
Art. 989. If, together with illegitimate children, there
should survive descendants of another illegitimate
child who is dead, the former shall succeed in their
own right and the latter by right of representation.
(940a)
Art. 990. The hereditary rights granted by the two
preceding articles to illegitimate children shall be
transmitted upon their death to their descendants,
who shall inherit by right of representation from
their deceased grandparent. (941a)
Art. 991. If legitimate ascendants are left, the
illegitimate children shall divide the inheritance
with them, taking one-half of the estate, whatever be
the number of the ascendants or of the illegitimate
children. (942-841a)
Art. 992. An illegitimate child has no right to inherit
ab intestato from the legitimate children and
relatives of his father or mother; nor shall such
children or relatives inherit in the same manner
from the illegitimate child. (943a)

- jann - 124
Wills & Succession/ Atty Uribe
 Art. 993. If an illegitimate child should die without
issue, either legitimate or illegitimate, his father or
mother shall succeed to his entire estate; and if the
child's filiation is duly proved as to both parents,
 who are both living, they shall inherit from him
share and share alike. (944)
 Art. 994. In default of the father or mother, an
illegitimate child shall be succeeded by his or her
surviving spouse who shall be entitled to the entire
estate.
If the widow or widower should survive with
 brothers and sisters, nephews and nieces, she or he
shall inherit one-half of the estate, and the latter the
other half. (945a)
b. Illegitimate children and descendant
 Art. 990. The hereditary rights granted by the two
preceding articles to illegitimate children shall be
transmitted upon their death to their descendants,
 who shall inherit by right of representation from
their deceased grandparent. (941a)
 Art. 992. An illegitimate child has no right to inherit
ab intestato from the legitimate children and
relatives of his father or mother; nor shall such
children or relatives inherit in the same manner
from the illegitimate child. (943a)
B. Surviving Spouse
 Art. 995. In the absence of legitimate descendants
and ascendants, and illegitimate children and their
descendants, whether legitimate or illegitimate, the
surviving spouse shall inherit the entire estate,
 without prejudice to the rights of brothers and
sisters, nephews and nieces, should there be any,
under article 1001. (946a)
 Art. 996. If a widow or widower and legitimate
children or descendants are left, the surviving
spouse has in the succession the same share as that
of each of the children. (834a)
 Art. 997. When the widow or widower survives with
legitimate parents or ascendants, the surviving
spouse shall be entitled to one-half of the estate, and
the legitimate parents or ascendants to the other
half. (836a)
 Art. 998. If a widow or widower survives with
illegitimate children, such widow or widower shall
 be entitled to one-half of the inheritance, and the
illegitimate children or their descendants, whether
legitimate or illegitimate, to the other half. (n)
 Art. 999. When the widow or widower survives with
legitimate children or their descendants and
illegitimate children or their descendants, whether
legitimate or illegitimate, such widow or widower
- jann -
shall be entitled to the same share as that of a
legitimate child. (n)
 Art. 1000. If legitimate ascendants, the surviving
spouse, and illegitimate children are left, the
ascendants shall be entitled to one-half of the
inheritance, and the other half shall be divided
 between the surviving spouse and the illegitimate
children so that such widow or widower shall have
one-fourth of the estate, and the illegitimate
children the other fourth. (841a)
 Art. 1001. Should brothers and sisters or their
children survive with the widow or widower, the
latter shall be entitled to one-half of the inheritance
and the brothers and sisters or their children to the
other half. (953, 837a)
 Art. 1002. In case of a legal separation, if the
surviving spouse gave cause for the separation, he or
she shall not have any of the rights granted in the
preceding articles. (n)
Santillon vs. Miranda
On November 21, 1953, Santillon died without testament in
Tayug, Pangasinan, his residence, leaving one son Claro,
and his wife, Perfecta Miranda. During his marriage, Pedro
acquired several parcels of land located in that province.
 About four years after his death, Claro Santillon filed a
petition for letters of administration. Opposition to said
petition was entered by the widow Perfecta Miranda and the
spouses Benito U. Miranda and Rosario Corrales on the
following grounds: (a) that the properties enumerated in the
petition were all conjugal, except three parcels which
Perfecta Miranda claimed to be her exclusive properties; (b)
that Perfecta Miranda by virtue of two documents had
conveyed 3/4 of her undivided share in most of the properties
enumerated in the petition to said spouses Benito and
Rosario; (c) that administration of the estate was not
necessary, there being a case for partition pending; and (d)
that if administration was necessary at all, the oppositor
Perfecta Miranda and not the petitioner was better qualified
for the post. It appears that subsequently, oppositor Perfecta
Miranda was appointed administratrix of the estate.
On April 25, 1961, Claro filed a "Motion to Declare Share of
Heirs" and to resolve the conflicting claims of the parties with
respect to their respective rights in the estate. Invoking Art.
892 of the New Civil Code, he insisted that after deducting
1/2 from the conjugal properties as the conjugal share of
Perfecta, the remaining 1/2 must be divided as follows: 1/4
for her and 3/4 for him. Oppositor Perfecta, on the other
hand, claimed that besides her conjugal half, she was
entitled under Art. 996 of the New Civil Code, to another 1/2
of the remaining half. In other words, Claro claimed 3/4 of
Pedro's inheritance, while Perfecta claimed 1/2.
From this order, petitioner Claro Santillon has appealed to
this Court. Two questions of law are involved. The first,
raised in Perfecta's Motion to Dismiss Appeal, is whether the
order of the lower court is appealable. And the second,
raised in appellant's lone assignment of error, is: How shall
the estate of a person who dies intestate be divided when the
only survivors are the spouse and one legitimate child?
125
Wills & Succession/ Atty Uribe
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.
RULE 81
BONDS OF EXECUTORS AND
ADMINISTRATORS
SECTION 1. Bond to be given before
issuance of letters. Amount. Conditions.—Before
an executor or administrator enters upon the
execution of his trust, and letters testamentary
or of administration issue, he shall give a bond,
in such sum as the court directs, conditioned as
follows:
(a) To make and return to the court,
within three (3) months, a true and
complete inventory of all goods, chattels,
rights, credits, and estate of the deceased
which shall come to his possession or
knowledge or to the possession of any other
person for him;
(b) To administer according to these
rules, and, if an executor, according to the
will of the testator, all goods, chattels,
rights, credits, and estate which shall at any
time come to his possession or to the
possession of any other person for him, and
from the proceeds to pay and discharge all
debts, legacies, and charges on the same,
or such dividends thereon as shall be
decreed by the court;
- jann -
(c) To render a true and just account
of his administration to the court within one
(1) year, and at any other time when
required by the court;
(d) To perform all orders of the court
by him to be performed.
SEC. 2. Bond of executor where directed in
will. When further bond required.— If the testator
in his will directs that the executor serve
without bond, or with only his Individual bond,
he may be allowed by the court to give bond in
such sum and with such surety as the court
approves conditioned only to pay the debts of
the testator; but the court may require of the
executor a further bond in case of a change in
his circumstances, or for other sufficient cause,
with the conditions named in the last preceding
section.
SEC. 3. Bonds of joint executors and
administrators.— When two or more persons are
appointed executors or administrators the court
may take a separate bond from each, or a joint
bond from all.
SEC. 4. Bond of special administrator.—A
special administrator before entering upon the
duties of his trust shall give a bond, in such sum
as the court directs, conditioned that he will
make and return a true inventory of the goods,
chattels, rights, credits, and estate of the
deceased which come to his possession or
knowledge, and that he will truly account for
such as are received by him when required by
the court, and will deliver the same to the
person appointed executor or administrator, or
to such other person as may be authorized to
receive them.
RULE 84
GENERAL POWERS AND DUTIES OF
EXECUTORS AND ADMINISTRATORS
SECTION 1. Executor or administrator to
have access to partnership books and property.
How right enforced.— The executor or
administrator of the estate of a deceased
partner shall at all times have access to, and
may examine and take copies of, books and
papers relating to the partnership business, and
may examine and make invoices of the property
belonging to such partnership; and the surviving
partner or partners, on request, shall exhibit to
him all such books, papers, and property in their
hands or control. On the written application of
such executor or administrator, the Court
having jurisdiction of the estate may order any
such surviving partner or partners to freely
permit the exercise of the rights, and to exhibit
139
Wills & Succession/ Atty Uribe
the books, papers, and property, as in this
section provided, and may punish any partner
failing to do so for contempt.
SEC. 2. Executor or administrator to keep
buildings in repair.—An executor or
administrator shall maintain in tenantable repair
the houses and other structures and fences
belonging to the estate, and deliver the same in
such repair to the heirs or devisees when
directed so to do by the court.
SEC. 3. Executor or administrator to retain
whole estate to pay debts, and to administer
estate not willed.—An executor or administrator
shall have the right to the possession and
management of the real as well as the personal
estate of the deceased so long as it is necessary
for the payment of the debts and the expenses
of administration.
RULE 86
CLAIMS AGAINST ESTATE
SECTION 1. Notice to creditors to be issued
by court.— Immediately after granting letters
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.
SEC. 2. Time within which claims shall be
filed.—In the notice provided in the preceding
section, the court shall state the time for the
filing of claims against the estate, which shall
not be more than twelve (12) nor less than six
(6) months after the date of the first publication
of the notice. However, at any time before an
order of distribution is entered, on application of
a creditor who has failed to file his claim within
the time previously limited, the court may, for
cause shown and on such terms as are
equitable, allow such claim to be filed within a
time not exceeding one (1) month.
SEC. 3. Publication of notice to creditors.—
Every executor or administrator shall,
immediately alter the notice to creditors is
issued, cause the same to be published three
(3) weeks successively in a newspaper of
general circulation in the province, and to be
posted for the same period in four public places
in the province, and in two public places in the
municipality where the decedent last resided
SEC. 4. Filing copy of printed notice.—
Within ten (10) days after the notice has been
published and posted n accordance with the
preceding section, the executor or administrator
shall file or cause to be filed in the court a
printed copy of the notice accompanied with an
- jann -
affidavit setting forth the dates of the first and
last publication thereof and the name of the
newspaper in which the same is printed.
SEC. 5. Claims which must be filed under
the notice. If not filed, barred; exceptions.— All
claims for money against the decedent, arising
from contract, express or implied, whether the
same be due, not due, or contingent, all claims
for funeral expenses and expenses for the last
sickness of the decedent, and judgment for
money against the decedent, must be filed
within the time limited in the notice; otherwise
they are barred forever, except that they may
be set forth as counterclaims in any action that
the executor or administrator may bring against
the claimants. Where an executor or
administrator commences an action, or
prosecutes an action already commenced by
the deceased in his lifetime, the debtor may set
forth by answer the claims he has against the
decedent, instead of presenting them
independently to the court as herein provided,
and mutual claims may be set off against each
other in such action; and if final judgment is
rendered in favor of the defendant, the amount
so determined shall be considered the true
balance against the estate, as though the claim
had been presented directly before the court in
the administration proceedings. Claims not yet
due, or contingent, may be approved at their
present value.
SEC. 6. Solidary obligation of decedent .—
Where the obligation of the decedent is solidary
with another debtor, the claim shall be filed
against the decedent as if he were the only
debtor, without prejudice to the right of the
estate to recover contribution from the other
debtor. In a joint obligation of the decedent, the
claim shall be confined to the portion belonging
to him.
SEC. 7. Mortgage debt due from estate.— A
creditor holding a claim against the deceased
secured by mortgage or other collateral
security, may abandon the security and
prosecute his claim in the manner provided in
this rule, and share in the general distribution of
the assets of the estate; or he may foreclose his
mortgage or realize upon his security, by action
in court, making the executor or administrator a
party defendant, and if there is a judgment for a
deficiency, after the sale of the mortgaged
premises, or the property pledged, in the
foreclosure or other proceedings to realize upon
the security, he may claim his deficiency
 judgment in the manner provided in the
preceding section; or he may rely upon his
mortgage or other security alone, and foreclose
the same at any time within the period of the
140
Wills & Succession/ Atty Uribe
statute of limitations, and in that event he shall
not be admitted as a creditor, and shall receive
no share in the distribution of the other assets
of the estate; but nothing herein contained shall
prohibit the executor or administrator from
redeeming the property mortgaged or pledged,
by paying the debt for which it is held as
security, under the direction of the court, if the
court shall adjudge it to be for the best interest
of the estate that such redemption shall be
made.
SEC. 8. Claim of executor or administrator
against an estate.—If the executor or
administrator has a claim against the estate he
represents, he shall give notice thereof, in
writing, to the court, and the court shall appoint
a special administrator, who shall, in the
adjustment of such claim, have the same power
and be subject to the same liability as the
general administrator or executor in the
settlement of other claims. The court may order
the executor or administrator to pay to the
special administrator necessary funds to defend
such claim.
SEC. 9. How to file a claim. Contents thereof
Notice to executor or administrator.—A claim
may be filed by delivering the same with the
necessary vouchers to the clerk of court and by
serving a copy thereof on the executor or
administrator. If the claim be founded on a
bond, bill, note, or any other instrument, the
original need not be filed, but a copy thereof
with all indorsements shall be attached to the
claim and filed therewith. On demand, however,
of the executor or administrator, or by order of
the court or judge, the original shall be
exhibited, unless it be lost or destroyed, in
which case the claimant must accompany his
claim with affidavit or affidavits containing a
copy or particular description of the instrument
and stating its loss or destruction. When the
claim is due, it must be supported by affidavit
stating the amount justly due, that no payments
have been made thereon which are not
credited, and that there are no offsets to the
same, to the knowledge of the affiant. If the
claim is not due, or is contingent, when filed, it
must also be supported by affidavit stating the
particulars thereof. When the affidavit is made
by a person other than the claimant, he must
set forth therein the reason why it is not made
by the claimant. The claim once filed shall be
attached to the record of the case in which the
letters testamentary or of administration were
issued, although the court, in its discretion, and
as a matter of convenience, may order all the
claims to be collected in a separate folder.
- jann -
SEC. 10.  Answer of executor or
administrator. Offsets.—Within fifteen (15) days
after service of a copy of the claim on the
executor or administrator, he shall file his
answer admitting or denying the claim
specifically, and setting forth the substance of
the matters which are relied upon to support the
admission or denial. If he has no knowledge
sufficient to enable him to admit or deny
specifically, he shall state such want of
knowledge. The executor or administrator in his
answer shall allege in offset any claim which the
decedent before death had against the
claimant, and his failure to do so shall bar the
claim forever. A copy of the answer shall be
served by the executor or administrator on the
claimant. The court in its discretion may extend
the time for filing such answer.
SEC. 11. Disposition of admitted claim.—
 Any claim admitted entirely by the executor or
administrator shall immediately be submitted by
the clerk to the court who may approve the
same without hearing; but the court, in its
discretion, before approving the claim, may
order that known heirs, legatees, or devisees be
notified and heard. If upon hearing, an heir,
legatee, or devisee opposes the claim, the court
may, in its discretion, allow him fifteen (15)
days to file an answer to the claim in the
manner prescribed in the preceding section.
SEC. 12. Trial of contested claim.—Upon the
filing of an answer to a claim, or upon the
expiration of the time for such filing, the clerk of
court shall set the claim for trial with notice to
both parties. The court may refer the claim to a
commissioner.
SEC. 13.  Judgment appealable.— The
 judgment of the court approving or disapproving
a claim, shall be filed with the record of the
administration proceedings with notice to both
parties, and is appealable as in ordinary cases.
A judgment against the executor or
administrator shall be that he pay, in due course
of administration, the amount ascertained to be
due, and it shall not create any lien upon the
property of the estate, or give to the judgment
creditor any priority of payment.
SEC. 14. Costs.—When the executor or
administrator, in his answer, admits and offers
to pay part of a claim, and the claimant refuses
to accept the amount offered in satisfaction of
his claim, if he fails to obtain a more favorable
 judgment, he cannot recover costs, but must
pay to the executor or administrator costs from
the time of the offer. Where an action
commenced against the deceased for money
has been discontinued and the claim embraced
141
Wills & Succession/ Atty Uribe
therein presented as in this rule provided, the
prevailing party shall be allowed the costs of his
action up to the time of its discontinuance.
RULE 87
ACTIONS BY AND AGAINST EXECUTORS
AND ADMINISTRATORS
SECTION 1.  Actions which may and which
may not be brought against executor or
administrator.—No action upon a claim for the
recovery of money or debt or interest thereon
shall be commenced against the executor or
administrator; but actions to recover real or
personal property, or an interest therein, from
the estate, or to enforce a lien thereon, and
actions to recover damages for an injury to
person or property, real or personal, may be
commenced against him.
SEC. 2. Executor or administrator may bring
or defend actions which survive.—For the
recovery or protection of the property or rights
of the deceased, an executor or administrator
may bring or defend, in the right of the
deceased, actions for causes which survive.
SEC. 3. Heir may not sue until share
assigned.—When an executor or administrator is
appointed and assumes the trust, no action to
recover the title or possession of lands or for
damages done to such lands shall be
maintained against him by an heir or devisee
until there is an order of the court assigning
such lands to such heir or devisee or until the
time allowed for paying debts has expired.
SEC. 4. Executor or administrator may
compound with debtor.—With the approval of
the court, an executor or administrator may
compound with the debtor of the deceased for a
debt due, and may give a discharge of such
debt on receiving a just dividend of the estate of
the debtor.
SEC. 5. Mortgage due estate may be
foreclosed.—A mortgage belonging to the estate
of a deceased person, as mortgagee or assignee
of the right of a mortgagee, may be foreclosed
by the executor or administrator.
SEC. 6. Proceedings when property
concealed, embezzled, or fraudulently
conveyed.—If an executor or administrator, heir,
legatee, creditor, or other individual interested
in the estate of the deceased, complains to the
court having jurisdiction of the estate that a
person is suspected of having concealed,
embezzled, or conveyed away any of the
money, goods, or chattels of the deceased, or
that such person has in his possession or has
- jann -
knowledge of any deed, conveyance, bond,
contracts, or other writing which contains
evidence of or tends to disclose the right, title,
interest, or claim of the deceased to real or
personal estate, or the last will and testament of
the deceased, the court may cite such
suspected person to appear before it and may
examine him on oath on the matter of such
complaint; and if the person so cited refuses to
appear, or to answer on such examination such
interrogatories as are put to him, the court may
punish him for contempt, and may commit him
to prison until he submits to the order of the
court. The interrogatories put to any such
person, and his answers thereto, shall be in
writing and shall be filed in the clerk’s office.
SEC. 7. Person entrusted with estate
compelled to render account.— The court, on
complaint of an executor or administrator, may
cite a person entrusted by an executor or
administrator with any part of the estate of the
deceased to appear before it, and may require
such person to render a full account, on oath, of
the money, goods, chattels, bonds, accounts, or
other papers belonging to such estate as came
to his possession in trust for such executor or
administrator, and of his proceedings thereon;
and if the person so cited refuses to appear to
render such account, the court may punish him
for contempt as having disobeyed a lawful order
of the court.
SEC. 8. Embezzlement before letters
issued.—If a person, before the granting of
letters testamentary or of administration on the
estate of the deceased, embezzles or alienates
any of the money, goods, chattels, or effect of
such deceased, such person shall be liable to an
action in favor of the executor or administrator
of the estate for double the value of the
property sold, embezzled, or alienated, to be
recovered for the benefit of such estate.
SEC. 9. Property fraudulent conveyed by
deceased may be recovered. When executor or
administrator must bring action.—When there is
a deficiency of assets in the hands of an
executor or administrator for the payment of
debts and expenses of administration, and the
deceased in his lifetime had conveyed real or
personal property, or a right or interest therein,
or debt or credit, with intent to defraud his
creditors or to avoid any right debt, or duty; or
had so conveyed such property, right, interest,
debt, or creditors, and the subject of the
attempted conveyance would be liable to
attachment by any of them in his lifetime, the
executor or administrator may commence and
prosecute to final judgment an action for the
recovery of such property, right, interest, debts,
142
Wills & Succession/ Atty Uribe
or credit for the benefit of the creditors; but he
shall not be bound to commence the action
unless the creditors making the application pay
such part of the costs and expenses, or give
security therefor to the executor or
administrator, as the court deems equitable.
SEC. 10. When creditor may bring action.
Lien for cost.—When there is such a deficiency
of assets, and the deceased in his lifetime had
made or attempted such a conveyance, as is
stated in the last preceding section, and the
executor and administrator has not commenced
the action therein provided for, any creditor of
the estate may, with the permission of the
court, commence and prosecute to final
 judgment, in the name of the executor or
administrator, a like action for the recovery of
the subject of the conveyance or attempted
conveyance for the benefit of the creditors. But
the action shall not be commenced until the
creditor has filed in a court a bond executed to
the executor or administrator, in an amount
approved by the judge, conditioned to indemnify
the executor or administrator against the costs
and expenses incurred by reason of such action.
Such creditor shall have a lien upon any
 judgment recovered by him in the action for
such costs and other expenses incurred therein
as the court deems equitable. Where the
conveyance or attempted conveyance has been
made by the deceased in his lifetime in favor of
the executor or administrator, the action which
a creditor may bring shall be in the name of all
the creditors, and permission of the court and
filing of bond as above prescribed, are not
necessary.

- jann - 143