Professional Documents
Culture Documents
Succession Strategy To Uribe
Succession Strategy To Uribe
Legend:
T Senator Tolentinos comments
B Professor Balanes comments
I. GENERAL PROVISIONS
Wills is a form of succession.
Why emphasize wills a) wills will minimize conflict between
heirs; b) it represents the intent of the testator.
The law only provides for the aliquot portion of the estate
and the heirs may fight for specific properties but if there is
a will made - which divides and designates properties (even
the smallest jewelry) to particular heirs it will be better.
More often than not those who execute wills are those who
have many properties
A. Definition and Concepts
Art. 774. Succession is a mode of acquisition by virtue
of which the property, rights and obligations to the
extent of the value of the inheritance, of a person are
transmitted through his death to another or others either
by his will or by operation of law. (n)
Succession as a mode of acquisition is not limited to
acquiring ownership but includes the rights transmitted by
decedent.
Art. 712. Ownership is acquired by occupation and by
intellectual creation.
Ownership and other real rights over property are
acquired and transmitted by law, by donation, by estate
and intestate succession, and in consequence of certain
contracts, by tradition.
They may also be acquired by means of prescription.
Art. 1311. Contracts take effect only between the parties,
their assigns and heirs, except in case where the rights
and obligations arising from the contract are not
transmissible by their nature, or by stipulation or by
provision of law. The heir is not liable beyond the value
of the property he received from the decedent.
If a contract should contain some stipulation in favor of
a third person, he may demand its fulfillment provided
he communicated his acceptance to the obligor before
its revocation. A mere incidental benefit or interest of a
person is not sufficient. The contracting parties must
have clearly and deliberately conferred a favor upon a
third person.
When a person inherits does he acquire ownership? not
necessarily. He can only have the right which the decedent
has (e.g. least, etc) - pede usufruct lang ang ibibigay in so
far as testamentary provision is concerned.
Other modes of acquisition:
- tradition: mode of delivery must be a consequence of
certain contracts like delivery in sales to transfer
ownership
- prescriptions: acquisitive prescription only, not those
extinctive prescription which pertain to actions.
What concepts in the Family Code is related to Family
relations? legitimes, devices and legatees.
- intestate succession (only those within the family of
decedent, degree of closeness)
- concept of legitimes (only members of family)
The date of effectivity of the NCC August 30, 1950
The date of effectivity of the Family Code August 3, 1988
What law deals with succession before the NCC was made
effective Old Civil Code of 1889
The State
Art. 1011. In default of persons entitled to succeed in
accordance with the provisions of the preceding
Sections, the State shall inherit the whole estate. (956a)
3. Capacity to Succeed
The general rule is any person may succeed by
law or by will unless excluded by law.
Requisites of capacity to succeed: a) that there be
general civil capacity of the person, whether
natural or artificial, according to law; and b) that
here be no incapacity to succeed under express
provision of law.
a.
Determination
nephew or a son of his sister, who would be his thirddegree 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 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
C. Object of Succession
Art. 776. The inheritance includes all the property, rights
and obligations of a person which are not extinguished
by his death.
T- It is evident from this article that the inheritance does not
include everything that belongs to the deceased at the time
of his death. It is limited to the property, rights, and
obligations not extinguish by his death. Including those
transmissible rights and property accruing thereto from that
time pertain to the heir.
The following are the rights and obligations extinguished by
death:
1. those arising from marriage
2. action for legal separation belonging to the
innocent spouse
3. action to annul marriage
4. obligation to give legal support except those
expressly provided for by law
5. right to receive support
6. right of patria potestas
7. right of the guardian
8. right of usufruct
9. right of donor to revoke donation due to
ingratitude of donee
10. rights arising from agency not the effects
already executed
11. criminal responsibility
12. rights from public law such as suffrage and
public employment
The following rules are laid down
1. rights which are purely personal are by their
nature and purpose intransmissible, ex. Those
relating to civil personality, family rights, and
discharge of public office
2. rights which are patrimonial or relating to
property are, as ageneral rule, not extinguished by
death except those expressly provided by law or
by will of the testator such as usufruct and
personal servitudes.
3. rights of obligation are by nature
transmissible and may be part of inheritance, both
the right of the creditor and obligation of the debtor
except the following:
a. those which are personal, such as
personal qualifications of the debtor
have been taken into account
b. those that are intransmissible by
express agreement or will of testator
c. those that are intransmissible by
express provision of law like life
pensions given under contract
The heirs of the deceased are no longer liable for the debts
he may leave at the time of his death. Such debts are
chargeable against the property or assets left by the
deceased. In other words, the heirs are no longer liable
personally for the debts of the deceased ; such debts must
be collected only from the property left upon his death, and if
this should not be sufficient to cover all of them, the heirs
cannot be made to pay the uncollectible balance.
Inheritance consists of the mass of property, rights, and
obligations adjudicated to the heirs or transmitted to them
after deducting therefrom all the debts left by the deceased.
This should not be understood to mean, however, that
obligations are no longer a part of inheritance. Only the
money debts are chargeable against the estate left by the
deceased; these are obligations which do not pass to the
heirs, but constitute a charge against the hereditary
property.
Art. 781. The inheritance of a person (the decedent)
includes not only the property and the transmissible
rights and obligations existing at the time of his death,
but also those which have accrued thereto since the
opening of the succession.
Since ownership is vested in the heir from the moment of the
death of the predecessor, necessarily all accessions
subsequent to that moment must belong to such heir.
The criticism on this article is that the accession to such
property is not transmitted by death; it is acquired already by
virtue of the right of ownership which is vested from the
moment of the predecessors death in the successor. It is
judicially erroneous to say that inheritance includes such
accession. Even without this article, an heir would be entitled
to the accession and fruits which accrued since the death of
the decedent by virtue of the right of accession (ownweship).
Art. 1311. Contracts take effect only between the parties,
their assigns and heirs, except in case where the rights
and obligations arising from the contract are not
transmissible by their nature, or by stipulation or by
provision of law. The heir is not liable beyond the value
of the property he received from the decedent.
If a contract should contain some stipulation in favor of
a third person, he may demand its fulfillment provided
he communicated his acceptance to the obligor before
its revocation. A mere incidental benefit or interest of a
person is not sufficient. The contracting parties must
have clearly and deliberately conferred a favor upon a
third person.
10
11
12
Balane:
9. individual (Art. 818)
10. executed with animus testandi (Art. 783)
11. Statutory (Art. 783)
Art. 783. A will is an act whereby a person is permitted,
with the formalities prescribed by law, to control to a
certain degree the disposition of this estate, to take
effect after his death. (667a)
B: The word Act is too broad and should have been limited
to a more specific term such as instrument or document in
view of Art. 804 that every will must be in writing.
The requirement of form prescribed respectively for attested
and holographic wills.
The testators power of disposition is limited by the rules on
legitimes.
Will making is purely statutory being defined as permitted.
Art. 839. The will shall be disallowed in any of the
following cases:
(1) If the formalities required by law have not
been complied with;
13
14
The general rule is that given in the present article, that the
validity of the execution of a will is controlled by the statute
in force at the time of execution; and a statute enacted
subsequent to the execution and prior to the death of the
testator, changing the rules respecting the form of the
15
16
17
18
19
the witnesses need not even know the contents of the will
because what they attest to is the due execution and the
signing of the testator.
It is presumed that a witness has the qualifications
prescribed by law, unless the contrary is established. His
credibility depends upon the appreciation of his testimony
and arises from the belief and appreciation of the court that
he is telling the truth. His competency arise or is required to
exist at the time of execution of the will.
As to order of signing, there are two views:
Strict approach; The general rule has been, that everything
required to be done by the testator in the execution of a will
shall precede in point of time the subscription by the
attesting witness, and if the signatures of the latter precede
the signing by the testator there is no proper attestation, and
the will is void, for until the testator has signed, there is no
will and nothing to attest.
Liberal approach; where the witnesses and the testator all
sign in the presence of one another, it is not essential that
the testator sign first, if the signing and the attestation be
parts of the same transaction; in such case, where the acts
are substantially contemporaneous, it cannot be said that
there is any substantial priority.
The latter view is upheld by most courts. In the absence of
proof to the contrary, it will be presumed that the testator
signed first.
Purpose of requiring presence of each other:
1. to prevent another paper being substituted
for the will fraudulently;
2. so that each may be a witness of the other
and;
3. to render fabrication of testimony more
difficult.
When testator is blind; when witness subscribe his will in the
same room or within reasonable close proximity and within
his hearing, they subscribe in his presence. Evidently, the
rule is that they should be within the cognizance of his
remaining senses, such that he knows what is being done.
The testator and witnesses must sign on the left margin of
every page, the failure of all of them to sign the left margin is
a fatal defect
The purpose of numbering of pages is to afford a means for
determinig whether any sheet or page of the will has been
removed. Except only when will was written on a single
page.
An attestation clause is a memorandum of facts attending
the execution of the will and is that part of the instrument
wherein the witnesses certify that the instrument has been
executed before them, and the manner of execution.
The attestation clause duly signed is the best evidence as to
date of signing
The law does not require the attestation to be contained in a
single clause. Thus, where a will did not contain a separate
independent attestation clause, but the concluding
paragraph of the body of the will was written in the tenor of
an attestation, stating the facts required by law to be set
forth in an attestation clause, and the penultimate paragraph
of the will stated the number of pages used, it was held to be
sufficient though in the first person and signed by the
testator provided it was signed by the witnesses.
Any failure to state a material fact in the attestation clause
will render the will null and void. Oral evidence will not cure
any alleged defect because the statute of frauds does not
apply to wills. The statute relates to contracts and
agreement only this may be cured by the oral ratification of
the parties.
Date- in an ordinary will date is not an essential part. Only
HW requires a date. Neither a statement of the place of
execution is required and the absence of both facts does not
invalidate the will.
Art. 806. Every will must be acknowledged before a
notary public by the testator and the witnesses. The
notary public shall not be required to retain a copy of
the will, or file another with the Office of the Clerk of
Court. (n)
T: This article applies only to ordinary or attested wills. It has
no application to a holographic will which does not have to
be witnessed. Since acknowledgement before a notary
public must be made by the testator and the witness, it is
obvious that the law contemplates only ordinary wills.
The signing of the will by the testator and the witnesses, and
the acknowledgement of said will before a notary public
need not be done in a single act unlike the in the old code
because his presence is required due to the fact that he
prepares the will. Under the present code, it is enough that
the testator and witnesses acknowledge to him its execution
for such acknowledgement is indispensable for the validity of
the will. An interval of time may elapse between the actual
signing of the will and the acknowledgement before the
notary public. It is important also that testamentary capacity
must exist also at the time of acknowledgement, because
this is an essential part of the execution of the will.
The purpose of acknowledgement is to minimize fraud and
undue pressure and this purpose can be attained whether
acknowledgement takes place at the same time at same
time as the signing or at some time thereafter.
The prohibition under this article on the retention of a copy
by the notary is grounded on the desire of the testator to
20
"NUMERIANO EVANGELISTA
ROSENDO CORTES
BIBIANA ILLEGIBLE"
(Sgd.)
21
"NUMERIANO EVANGELISTA
ROSENDO CORTES
BIBIANA ILLEGIBLE"
(Sgd.)
22
enough that only the testatrix signs at the "end" but all the
three subscribing witnesses must also sign at the same
place or at the end, in the presence of the testatrix and of
one another because the attesting witnesses to a will attest
not merely the will itself but also the signature of the testator.
It is not sufficient compliance to sign the page, where the
end of the will is found, at the left hand margin of that page.
On the other hand, the petitioner maintains that Article 805
of the Civil Code does not make it a condition precedent or a
matter of absolute necessity for the extrinsic validity of the
will that the signatures of the subscribing witnesses should
be specifically located at the end of the will after the
signature of the testatrix. He contends that it would be
absurd that the legislature intended to place so heavy an
import on the space or particular location where the
signatures are to be found as long as this space or particular
location wherein the signatures are found is consistent with
good faith and the honest frailties of human nature.
For the validity of a formal notarial will, does Article 805 of
the Civil Code require that the testatrix and all the three
instrumental and attesting witnesses sign at the end of the
will and in the presence of the testatrix and of one another?
Undoubtedly, under Article 805 of the Civil Code, the will
must be subscribed or signed at its end by the testator
himself or by the testator's name written by another person
in his presence, and by his express direction, and attested
and subscribed by three or more credible witnesses in the
presence of the testator and of one another.
It must be noted that the law uses the terms attested and
subscribed. Attestation consists in witnessing the testator's
execution of the will in order to see and take note mentally
that those things are done which the statute requires for the
execution of a will and that the signature of the testator
exists as a fact. On the other hand, subscription is the
signing of the witnesses' names upon the same paper for the
purpose of identification of such paper as the will which was
executed by the testator. (Ragsdale v. Hill, 269 SW 2d 911).
Insofar as the requirement of subscription is concerned, it is
our considered view that the will in this case was subscribed
in a manner which fully satisfies the purpose of identification.
The law is to be liberally construed, "the underlying and
fundamental objective permeating the provisions on the law
on wills in this project consists in the liberalization of the
manner of their execution with the end in view of giving the
testator more freedom in expressing his last wishes but with
sufficient safeguards and restrictions to prevent the
commission of fraud and the exercise of undue and improper
pressure and influence upon the testator. This objective is in
accord with the modern tendency in respect to the
formalities in the execution of a will" (Report of the Code
Commission, p. 103).
The objects of attestation and of subscription were fully met
and satisfied in the present case when the instrumental
witnesses signed at the left margin of the sole page which
contains all the testamentary dispositions, especially so
when the will was properly identified by subscribing witness
Vicente Timkang to be the same will executed by the
testatrix. There was no question of fraud or substitution
behind the questioned order.
We have examined the will in question and noticed that the
attestation clause failed to state the number of pages used
in writing the will. This would have been a fatal defect were it
not for the fact that, in this case, it is discernible from the
entire will that it is really and actually composed of only two
pages duly signed by the testatrix and her instrumental
witnesses. As earlier stated, the first page which contains
the entirety of the testamentary dispositions is signed by the
testatrix at the end or at the bottom while the instrumental
witnesses signed at the left margin. The other page which is
marked as "Pagina dos" comprises the attestation clause
and the acknowledgment. The acknowledgment itself states
that "This Last Will and Testament consists of two pages
including this page."
The ratio decidendi of these cases seems to be that the
attestation clause must contain a statement of the number of
sheets or passes composing the will and that if this is
missing or is omitted, it will have the effect of invalidating the
will if the deficiency cannot be supplied, not by evidence
aliunde, but by a consideration or examination of the will
itself. But here the situation is different. While the attestation
clause does not state the number of sheets or pages upon
which the will is written, however, the last part of the body of
the will contains a statement that it is composed of eight
pages, which circumstance in our opinion takes this case out
of the rigid rule of construction and places it within the realm
of similar cases where a broad and more liberal view has
been adopted to prevent the will of the testator from being
defeated by purely technical considerations."
23
that the are radical differences that would justify the charge
of forgery, taking into account the advanced age of the
testatrix, the evident variability of her signatures, and the
effect of writing fatigue, the duplicate being signed right the
original. These, factors were not discussed by the expert.
Nor do we find adequate evidence of fraud or undue
influence. The fact that some heirs are more favored than
others is proof of neither (see In re Butalid, 10 Phil. 27;
Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronal, 45 Phil.
216). Diversity of apportionment is the usual reason for
making a testament; otherwise, the decedent might as well
die intestate. The testamentary dispositions that the heirs
should not inquire into other property and that they should
respect the distribution made in the will, under penalty of
forfeiture of their shares in the free part do not suffice to
prove fraud or undue influence. They appear motivated by
the desire to prevent prolonged litigation which, as shown by
ordinary experience, often results in a sizeable portion of the
estate being diverted into the hands of non-heirs and
speculators. Whether these clauses are valid or not is a
matter to be litigated on another occassion. It is also well to
note that, as remarked by the Court of Appeals in Sideco vs.
Sideco, 45 Off. Gaz. 168, fraud and undue influence are
mutually repugnant and exclude each other; their joining as
grounds for opposing probate shows absence of definite
evidence against the validity of the will.
On the question of law, we hold that the inadvertent failure of
one witness to affix his signature to one page of a testament,
due to the simultaneous lifting of two pages in the course of
signing, is not per se sufficient to justify denial of probate.
Impossibility of substitution of this page is assured not only
the fact that the testatrix and two other witnesses did sign
the defective page, but also by its bearing the coincident
imprint of the seal of the notary public before whom the
testament was ratified by testatrix and all three witnesses.
The law should not be so strictly and literally interpreted as
to penalize the testatrix on account of the inadvertence of a
single witness over whose conduct she had no control,
where the purpose of the law to guarantee the identity of the
testament and its component pages is sufficiently attained,
no intentional or deliberate deviation existed, and the
evidence on record attests to the full observance of the
statutory requisites. Otherwise, as stated in Vda. de Gil. vs.
Murciano, 49 Off. Gaz. 1459, at 1479 (decision on
reconsideration) "witnesses may sabotage the will by
muddling or bungling it or the attestation clause".
This would not be the first time that this Court departs from a
strict and literal application of the statutory requirements,
where the purposes of the law are otherwise satisfied. Thus,
despite the literal tenor of the law, this Court has held that a
testament, with the only page signed at its foot by testator
and witnesses, but not in the left margin, could nevertheless
be probated (Abangan vs. Abangan, 41 Phil. 476); and that
despite the requirement for the correlative lettering of the
pages of a will, the failure to make the first page either by
letters or numbers is not a fatal defect (Lopez vs. Liboro, 81
Phil. 429). These precedents exemplify the Court's policy to
require satisfaction of the legal requirements in order to
guard against fraud and bid faith but without undue or
unnecessary curtailment of the testamentary privilege.
The appellants also argue that since the original of the will is
in existence and available, the duplicate (Exh. A-1) is not
entitled to probate. Since they opposed probate of original
because it lacked one signature in its third page, it is easily
discerned that oppositors-appellants run here into a
dilemma; if the original is defective and invalid, then in law
there is no other will but the duly signed carbon duplicate
(Exh. A-1), and the same is probatable. If the original is valid
and can be probated, then the objection to the signed
duplicate need not be considered, being superfluous and
irrelevant. At any rate, said duplicate, Exhibit A-1, serves to
prove that the omission of one signature in the third page of
the original testament was inadvertent and not intentional.
That the carbon duplicate, Exhibit A-1, was produced and
admitted without a new publication does not affect the
jurisdiction of the probate court, already conferred by the
original publication of the petition for probate. The amended
petition did not substantially alter the one first filed, but
merely supplemented it by disclosing the existence of the
duplicate, and no showing is made that new interests were
involved (the contents of Exhibit A and A-1 are admittedly
identical); and appellants were duly notified of the proposed
amendment. It is nowhere proved or claimed that the
amendment deprived the appellants of any substantial right,
and we see no error in admitting the amended petition.
IN VIEW OF THE FOREGOING, the decision appealed from
is affirmed
Cruz vs. Villasor
Petition to review on certiorari the judgment of the Court of
First Instance of Cebu allowing the probate of the last will
and testament of the late Valente Z. Cruz. Petitionerappellant Agapita N. Cruz, the surviving spouse of the said
deceased, opposed the allowance of the will (Exhibit "E"),
alleging that the will was executed through fraud, deceit,
misrepresentation and undue influence; that the said
instrument was executed without the testator having been
fully informed of the contents thereof, particularly as to what
properties he was disposing; and that the supposed last will
24
25
26
27
28
29
4. can be disregarded by
t
B: This characteristic is consistent with the principle laid
down in Art. 777, successional rights vest only upon death.
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.
Definitions of revocation
30
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 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.
In view of the fact that the original will of 1919 could not be
found after the death of the testator Miguel Mamuyac and in
view of the positive proof that the same had been cancelled,
we are forced to the conclusion that the conclusions of the
lower court are in accordance with the weight of the
evidence.
Casiano vs. CA
On October 20, 1963, Adriana Maloto died leaving as heirs
her niece and nephews, the petitioners Aldina MalotoCasiano and Constancio Maloto, and the private
respondents Panfilo Maloto and Felino Maloto. Believing that
the deceased did not leave behind a last will and testament,
these four heirs commenced on November 4, 1963 an
intestate proceeding for the settlement of their aunt's estate.
The case was instituted in the then Court of First Instance of
Iloilo and was docketed as Special Proceeding No. 1736.
However, while the case was still in progress, or to be exact
on February 1, 1964, the parties Aldina, Constancio,
Panfilo, and Felino executed an agreement of
extrajudicial settlement of Adriana's estate. The agreement
provided for the division of the estate into four equal parts
among the parties. The Malotos then presented the
extrajudicial settlement agreement to the trial court for
approval which the court did on March 21, 1964. That should
have signalled the end of the controversy, but, unfortunately,
it had not.
Three years later, or sometime in March 1967, Atty. Sulpicio
Palma, a former associate of Adriana's counsel, the late
Atty. Eliseo Hervas, discovered a document entitled
"KATAPUSAN NGA PAGBULUT-AN (Testamento)," dated
January 3, 1940, and purporting to be the last will and
testament of Adriana. Atty. Palma claimed to have found the
testament, the original copy, while he was going through
some materials inside the cabinet drawer formerly used by
Atty. Hervas. The document was submitted to the office of
the clerk of the Court of First Instance of Iloilo on April 1,
1967. Incidentally, while Panfilo and Felino are still named
as heirs in the said will, Aldina and Constancio are
bequeathed much bigger and more valuable shares in the
estate of Adriana than what they received by virtue of the
agreement of extrajudicial settlement they had earlier
signed. The will likewise gives devises and legacies to other
parties, among them being the petitioners Asilo de Molo, the
Roman Catholic Church of Molo, and Purificacion Miraflor.
There is no doubt as to the testamentary capacity of the
testatrix and the due execution of the will. The heart of the
case lies on the issue as to whether or not the will was
revoked by Adriana. The provisions of the new Civil Code
pertinent to the issue can be found in Article 830.
Art. 830. No will shall be revoked except in the following
cases:
(1)
By implication of law; or
(2)
By some will, codicil, or other writing executed as
provided in case of wills: or
(3)
By burning, tearing, cancelling, or
obliterating the will with the intention of revoking it,
by the testator himself, or by some other person in
his presence, and by his express direction. If
burned, torn, cancelled, or obliterated by some
other person, without the express direction of the
testator, the will may still be established, and the
estate distributed in accordance therewith, if its
contents, and due execution, and the fact of its
unauthorized
destruction,
cancellation,
or
obliteration are established according to the Rules
of Court. (Emphasis Supplied.)
It is clear that the physical act of destruction of a will, like
burning in this case, does not per se constitute an effective
revocation, unless the destruction is coupled with animus
revocandi on the part of the testator. It is not imperative that
the physical destruction be done by the testator himself. It
may be performed by another person but under the express
direction and in the presence of the testator. Of course, it
goes without saying that the document destroyed must be
the will itself.
The respondent appellate court in assessing the evidence
presented by the private respondents as oppositors in the
trial court, concluded that the testimony of the two witnesses
who testified in favor of the will's revocation appear
"inconclusive." We share the same view. Nowhere in the
records before us does it appear that the two witnesses,
Guadalupe Vda. de Corral and Eladio Itchon, both illiterates,
were unequivocably positive that the document burned was
indeed Adriana's will. Guadalupe, we think, believed that the
papers she destroyed was the will only because, according
to her, Adriana told her so. Eladio, on the other hand,
obtained his information that the burned document was the
will because Guadalupe told him so, thus, his testimony on
this point is double hearsay.
At this juncture, we reiterate that "(it) is an important matter
of public interest that a purported will is not denied
legalization on dubious grounds. Otherwise, the very
institution of testamentary succession will be shaken to its
very foundations . . . " 4
One last note. The private respondents point out that
revocation could be inferred from the fact that "(a) major and
substantial bulk of the properties mentioned in the will had
been disposed of: while an insignificant portion of the
31
E. Effect of revocation
32
Disallowance
1. by decree of court
2. exclusive grounds by law
3. entire will
B. Necessity of Probate
A final decree of probate is conclusive as to the due
execution and formal validity of a will, hence, probate is
necessary to determine the following:
1. testator was of sound mind
33
34
35
36
37
38
39
X. DISALLOWANCE OF WILLS
Art. 839. The will shall be disallowed in any of the
following cases:
(1) If the formalities required by law have not
been complied with;
(2) If the testator was insane, or otherwise
mentally incapable of making a will, at the time
of its execution;
(3) If it was executed through force or under
duress, or the influence of fear, or threats;
(4) If it was procured by undue and improper
pressure and influence, on the part of the
beneficiary or of some other person;
(5) If the signature of the testator was procured
by fraud;
(6) If the testator acted by mistake or did not
intend that the instrument he signed should be
his will at the time of affixing his signature
thereto. (n)
Art. 1335. There is violence when in order to wrest
consent, serious or irresistible force is employed.
There is intimidation when one of the contracting parties
is compelled by a reasonable and well-grounded fear of
an imminent and grave evil upon his person or property,
or upon the person or property of his spouse,
descendants or ascendants, to give his consent.
To determine the degree of intimidation, the age, sex
and condition of the person shall be borne in mind.
A threat to enforce one's claim through competent
authority, if the claim is just or legal, does not vitiate
consent. (1267a)
Art. 1336. Violence or intimidation shall annul the
obligation, although it may have been employed by a
third person who did not take part in the contract. (1268)
Art. 1337. There is undue influence when a person takes
improper advantage of his power over the will of
another, depriving the latter of a reasonable freedom of
choice. The following circumstances shall be
considered: the confidential, family, spiritual and other
relations between the parties, or the fact that the person
alleged to have been unduly influenced was suffering
from mental weakness, or was ignorant or in financial
distress. (n)
Art. 1338. There is fraud when, through insidious words
or machinations of one of the contracting 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
40
41
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
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 owners 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:
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.
42
43
44
45
IC alone
IC w/ SS 1/3, 1/3
a.
b.
c.
IP alone
IP w/ LC or IC excluded by the latter
IP w/ SS ,
COLLATION
Art. 1061. Every compulsory heir, who succeeds with
other compulsory heirs, must bring into the mass of the
estate any property or right which he may have received
from the decedent, during the lifetime of the latter, by
way of donation, or any other gratuitous title, in order
that it may be computed in the determination of the
legitime of each heir, and in the account of the partition.
(1035a)
Art. 1062. Collation shall not take place among
compulsory heirs if the donor should have so expressly
provided, or if the donee should repudiate the
inheritance, unless the donation should be reduced as
inofficious. (1036)
Art. 1063. Property left by will is not deemed subject to
collation, if the testator has not otherwise provided, but
the legitime shall in any case remain unimpaired. (1037)
Art. 1064. When the grandchildren, who survive with
their uncles, aunts, or cousins, inherit from their
grandparents in representation of their father or mother,
they shall bring to collation all that their parents, if alive,
would have been obliged to bring, even though such
grandchildren have not inherited the property.
They shall also bring to collation all that they may have
received from the decedent during his lifetime, unless
the testator has provided otherwise, in which case his
wishes must be respected, if the legitime of the co-heirs
is not prejudiced. (1038)
Art. 1065. Parents are not obliged to bring to collation in
the inheritance of their ascendants any property which
may have been donated by the latter to their children.
(1039)
Art. 1066. Neither shall donations to the spouse of the
child be brought to collation; but if they have been given
by the parent to the spouses jointly, the child shall be
obliged to bring to collation one-half of the thing
donated. (1040)
Art. 1067. Expenses for support, education, medical
attendance,
even
in
extraordinary
illness,
apprenticeship, ordinary equipment, or customary gifts
are not subject to collation. (1041)
Art. 1068. Expenses incurred by the parents in giving
their children a professional, vocational or other career
shall not be brought to collation unless the parents so
provide, or unless they impair the legitime; but when
their collation is required, the sum which the child
would have spent if he had lived in the house and
company of his parents shall be deducted therefrom.
(1042a)
Art. 1069. Any sums paid by a parent in satisfaction of
the debts of his children, election expenses, fines, and
similar expenses shall be brought to collation. (1043a)
Art. 1070. Wedding gifts by parents and ascendants
consisting of jewelry, clothing, and outfit, shall not be
reduced as inofficious except insofar as they may
exceed one-tenth of the sum which is disposable by will.
(1044)
Art. 1071. The same things donated are not to be
brought to collation and partition, but only their value at
the time of the donation, even though their just value
may not then have been assessed.
Their subsequent increase or deterioration and even
their total loss or destruction, be it accidental or
culpable, shall be for the benefit or account and risk of
the donee. (1045a)
Art. 1072. In the collation of a donation made by both
parents, one-half shall be brought to the inheritance of
the father, and the other half, to that of the mother. That
given by one alone shall be brought to collation in his or
her inheritance. (1046a)
Art. 1073. The donee's share of the estate shall be
reduced by an amount equal to that already received by
him; and his co-heirs shall receive an equivalent, as
much as possible, in property of the same nature, class
and quality. (1047)
Art. 1074. Should the provisions of the preceding article
be impracticable, if the property donated was
immovable, the co-heirs shall be entitled to receive its
equivalent in cash or securities, at the rate of quotation;
and should there be neither cash or marketable
securities in the estate, so much of the other property as
may be necessary shall be sold at public auction.
If the property donated was movable, the co-heirs shall
only have a right to select an equivalent of other
personal property of the inheritance at its just price.
(1048)
Art. 1075. The fruits and interest of the property subject
to collation shall not pertain to the estate except from
the day on which the succession is opened.
For the purpose of ascertaining their amount, the fruits
and interest of the property of the estate of the same
46
47
De Roma vs. CA
48
49
50
51
It is, however, argued for the appellee that since the court's
distribution of the estate of the late Bibiano Barretto was
predicated on the project of partition executed by Salud
Barretto and the widow, Maria Gerardo (who signed for
herself and as guardian of the minor Milagros Barretto), and
since no evidence was taken of the filiation of the heirs, nor
were any findings of fact or law made, the decree of
distribution can have no greater validity than that of the basic
partition, and must stand or fall with it, being in the nature of
a judgment by consent, based on a compromise. Saminiada
vs. Mata, 92 Phil. 426, is invoked in support of the
proposition. That case is authority for the proposition that a
judgment by compromise may be set aside on the ground of
mistake or fraud, upon petition filed in due time, where
petition for "relief was filed before the compromise
agreement, a proceeding, was consummated" (cas. cit. at p.
436). In the case before us, however, the agreement of
partition was not only ratified by the court's decree of
distribution, but actually consummated, so much so that the
titles in the name of the deceased were cancelled, and new
certificates issued in favor of the heirs, long before the
decree was attacked. Hence, Saminiada vs. Mata does not
apply.
That defendant Milagros Barretto was a minor at the time the
probate court distributed the estate of her father in 1939
does not imply that the said court was without jurisdiction to
enter the decree of distribution.
The only instance that we can think of in which a
party interested in a probate proceedings 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 reopening of the same case by
proper motion within the reglementary period,
instead of an independent action the effect of
which, if successful, would be, as in the instant
case, for another court or judge to throw out a
decision or order already final and executed and
reshuffle properties long ago distributed and
disposed of."
". . . It is argued that Lucia Milagros Barretto was a
minor when she signed the partition, and that
Maria Gerardo was not her judicially appointed
guardian. The claim is not true. Maria Gerardo
signed as guardian of the minor. (Secs. 3 and 5,
Rule 97, Rules of Court.) The mere statement in
the project of partition that the guardianship
proceedings of the minor Lucia Milagros Barretto
are pending in the court, does not mean that the
guardian had not yet been appointed; it meant that
the guardianship proceedings, had not yet been
terminated and as a guardianship proceedings
begin with the appointment of a guardian, Maria
Gerardo must have been already appointed when
she signed the project of partition. There is,
therefore, no irregularity or defect or error in the
project of partition, apparent on the record of the
testate proceedings, which shows that Maria
Gerardo had no power or authority to sign the
project of partition as guardian of the minor Lucia
Milagros Barretto, and, consequently, no ground
for the contention that the order approving the
project of partition is absolutely null and void and
may
be
attacked
collaterally
in
these
proceedings."
Defendant-appellee further pleads that as her mother and
guardian (Maria Gerardo) could not have ignored that the
distributee Salud was not her child, the act of said widow in
agreeing to the oft-cited partition and distribution was a fraud
on appellee's rights and entitles her to relief. In the first
place, there is no evidence that when the estate of Bibiano
Barretto was judicially settled and distributed appellants'
predecessor, Salud Lim Boco Barretto, knew that she was
not Bibiano's child; so that if fraud was committed, it was the
widow, Maria Gerardo, who was solely responsible, and
neither Salud nor her minor children, appellants herein, can
be held liable therefor. In the second place, granting that
there was such fraud, relief therefrom can only be obtained
within 4 years from its discovery, and the record shows that
this period had elapsed long ago.
Because at the time of the distribution Milagros Barretto was
only 16 years old (Exhibit 24), she became of age five years
later, in 1944. On that year, her cause of action accrued to
contest on the ground of fraud the court decree distributing
her father's estate and the four-year period of limitation
started to run, to expire in 1948 (Section 43, Act 190). In
fact, conceding that Milagros only became aware of the true
facts in 1946 (Appellee's Brief, p. 27), her action still became
extinct in 1950. Clearly, therefore, the action was already
barred when in August 31, 1956 she filed her counterclaim in
this case contesting the decree of distribution of Bibiano
Barretto's estate.
52
Until all the known creditors and the legatees have been
paid, it shall be understood that the estate is under
administration, says article 1026 of the Civil Code, and in
conformity with this legal provision the supreme tribunal has
established the doctrine that "only after payment of all the
obligations of the estate can the net amount divisible among
the heirs be known." (Decision of March 2, 1896.)
Section 753 of the Code of Civil Procedure confirms the
provision of the Civil Code and the legal doctrine mentioned
above, inasmuch as it provides that, after payment of the
debts, funeral charges, and expenses of administration, and
the allowances for the expense of maintenance of the family
of the deceased, the court shall assign the residue of the
estate to the persons entitled to the same, naming the
persons and proportions or parts to which each is entitled,
etc.
So that by reason of the claims made by the creditor of the
estate of Emilio Escuin de los Santos and by her natural
son, duly recognized by his father, an ordinary action should
have been brought before the Court of First Instance, from
whose judgment appeal may be taken to this court by means
of the corresponding bill of exceptions under the provisions
of section 777 of the Code of Civil Procedure; and while the
ultimate decision in the matter of the said claims against the
resolution of the commissioners has not become final, and
until all the obligations of the estate have been paid, there
can really be no inheritance, nor can it be distributed among
the persons interested therein according to the will of the
testator, or under the provisions of the law.
With respect to the questions which form the basis of this
litigation and refer to the second assignment of errors, it
should be noted that the late testator did not leave any
legitimate descendants or ascendants, but did leave a
recognized natural child, the appellant minor, and a widow;
that the said minor, Emilio Escuin y Batac, is the general heir
of his natural father, the said testator, who recognized him
while living (art. 807, Civil Code), and in the present case is
entitled to one-third of his estate, which amount constitutes
the legal portion of a natural child (art. 842 of the said code);
and for the reason that the minor was ignored by his natural
father in his will, the designation of heirs made therein was,
as a matter of fact annulled by force of law, in so far as the
legal portion of the said minor was thereby impaired.
Legacies and betterments shall be valid, in so far as they are
not illegal, for the reason that a testator can not deprive the
heirs of their legal portions, except in the cases expressly
indicated by law. (Arts. 763, 813, 814, Civil Code.)
As has been seen, the testator wished to dispose of his
property in his will, designating as heirs his natural father,
Francisco Escuin, and his wife, Maria Teresa Ponce de
Leon, altogether ignoring his recognized natural child who is
his general heir. In view thereof, and for the reason that he
exceeded his rights, the said designation of heirs became
void in so far as it impaired the right of his general heir and
deprived him of his legal portion; the will, however, is valid
with respect to the two-thirds of the property which the
testator could freely dispose of. (Arts. 763, 764, 806, 813,
842, Civil Code.)
Notwithstanding the fact that the designation of heirs is
annulled and that the law recognizes the title of the minor,
Escuin y Batac, to one-third of the property of his natural
father, as his lawful and general heir, it is not proper to
assert that the late Emilio Escuin de los Santos died
intestate in order to establish the conclusion that his said
natural recognized child is entitled to succeed to the entire
estate under the provisions of article 939 of the Civil Code,
inasmuch as in accordance with the law a citizen may die
partly testate and partly intestate (art. 764, Civil Code). It is
clear and unquestionable that it was the wish of the testator
to favor his natural father and his wife with certain portions of
his property which, under the law, he had a right to dispose
of by will, as he has done, provided the legal portion of his
general heir was not thereby impaired, the two former
persons being considered as legatees under the will.
The above-mentioned will is neither null, void, nor illegal in
so far as the testator leaves two-thirds of his property to his
father and wife; testamentary provisions impairing the legal
portion of a general heir shall be reduced in so far as they
are illegal or excessive. (Art. 817, Civil Code.) The partition
of the property of the said testator shall be proceeded with in
accordance with the foregoing legal bases.
By virtue of the foregoing considerations it is our opinion that
the orders of the court below, of October 30, 1906, and
August 24, 1907, should be reversed, and upon receipt of a
certified copy of this decision the court below shall take
action in accordance with the law and the terms herein
contained with respect to the claims and appeals from the
resolutions of the commissioners pending judicial decision.
So ordered.
Balanay vs. Martinez
53
54
pass first upon the formal validity of the will. Generally, the
probate of the will is mandatory (Art. 838, Civil Code;
Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249;
Fernandez vs. Dimagiba, L-23638, October 12, 1967, 21
SCRA 428).
To give effect to the intention and wishes of the testatrix is
the first and principal law in the matter of testaments (DizonRivera vs. Dizon, L-24561, June 30, 1970, 33 SCRA 554,
561). Testacy is preferable to intestacy. An interpretation
that will render a testamentary disposition operative takes
precedence over a construction that will nullify a provision of
the will (Arts. 788 and 791, Civil Code).
Testacy is favored. Doubts are resolved in favor of testacy
especially where the will evinces an intention on the part of
the testator to dispose of practically his whole estate. So
compelling is the principle that intestacy should be avoided
and that the wishes of the testator should prevail that
sometimes the language of the will can be varied for the
purpose of giving it effect (Austria vs. Reyes, L-23079,
February 27, 1970, 31 SCRA 754, 762).
As far as is legally possible, the expressed desire of the
testator must be followed and the dispositions of the
properties in his will should be upheld (Estorque vs.
Estorque, L-19573, June 30, 1970, 33 SCRA 540, 546).
The law has a tender regard for the wishes of the testator as
expressed in his will because any disposition therein is
better than that which the law can make (Castro vs. Bustos,
L-25913, February 28, 1969, 27 SCRA 327, 341).
Solano vs. CA
On July 7, 1969, Bienvenido Garcia and Emeteria Garcia
(GARCIAS), claiming to be illegitimate children of Dr. Meliton
SOLANO, filed an action for recognition against him. In his
Answer, SOLANO denied paternity. On February 3, 1970,
during the pendency of the suit, SOLANO died. Petitioner
ZONIA Ana Solano was ordered substituted for the
DECEDENT as the only surviving heir mentioned in his Last
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
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,
55
56
57
58
59
60
61
62
63
64
65
66
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)
4. 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 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
A. Concept of substitution
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)
B. Kinds of substitution
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 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
67
68
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 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
("obligacin 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 Da. Leona Singson established a
mere sustitucin 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.
C. Time-limitation on inalienability
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
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
69
may petition the court for the first installment upon the
death of the testator, and for the following ones which
shall be due at the beginning of each period; such
payment shall not be returned, even though the legatee
should die before the expiration of the period which has
commenced. (880a)
Art. 946. If the thing bequeathed should be subject to a
usufruct, the legatee or devisee shall respect such right
until it is legally extinguished. (868a)
Art. 947. The legatee or devisee acquires a right to the
pure and simple legacies or devises from the death of
the testator, and transmits it to his heirs. (881a)
Art. 948. If the legacy or device is of a specific and
determinate thing pertaining to the testator, the legatee
or devisee acquires the ownership thereof upon the
death of the testator, as well as any growing fruits, or
unborn offspring of animals, or uncollected income; but
not the income which was due and unpaid before the
latter's death.
From the moment of the testator's death, the thing
bequeathed shall be at the risk of the legatee or devisee,
who shall, therefore, bear its loss or deterioration, and
shall be benefited by its increase or improvement,
without prejudice to the responsibility of the executor or
administrator. (882a)
Art. 949. If the bequest should not be of a specific and
determinate thing, but is generic or of quantity, its fruits
and interests from the time of the death of the testator
shall pertain to the legatee or devisee if the testator has
expressly so ordered. (884a)
Art. 950. If the estate should not be sufficient to cover all
the legacies or devises, their payment shall be made in
the following order:
(1) Remuneratory legacies or devises;
(2) Legacies or devises declared by the
testator to be preferential;
(3) Legacies for support;
(4) Legacies for education;
(5) Legacies or devises of a specific,
determinate thing which forms a part of the
estate;
(6) All others pro rata. (887a)
Art. 951. The thing bequeathed shall be delivered with all
its accessories and accessories and in the condition in
which it may be upon the death of the testator. (883a)
Art. 952. The heir, charged with a legacy or devise, or
the executor or administrator of the estate, must deliver
the very thing bequeathed if he is able to do so and
cannot discharge this obligation by paying its value.
Legacies of money must be paid in cash, even though
the heir or the estate may not have any.
The expenses necessary for the delivery of the thing
bequeathed shall be for the account of the heir or the
estate, but without prejudice to the legitime. (886a)
Art. 953. The legatee or devisee cannot take possession
of the thing bequeathed upon his own authority, but
shall request its delivery and possession of the heir
charged with the legacy or devise, or of the executor or
administrator of the estate should he be authorized by
the court to deliver it. (885a)
Art. 954. The legatee or devisee cannot accept a part of
the legacy or devise and repudiate the other, if the latter
be onerous.
Should he die before having accepted the legacy or
devise, leaving several heirs, some of the latter may
accept and the others may repudiate the share
respectively belonging to them in the legacy or devise.
(889a)
Art. 955. The legatee or devisee of two legacies or
devises, one of which is onerous, cannot renounce the
onerous one and accept the other. If both are onerous or
gratuitous, he shall be free to accept or renounce both,
or to renounce either. But if the testator intended that
the two legacies or devises should be inseparable from
each other, the legatee or devisee must either accept or
renounce both.
Any compulsory heir who is at the same time a legatee
or devisee may waive the inheritance and accept the
legacy or devise, or renounce the latter and accept the
former, or waive or accept both. (890a)
Art. 956. If the legatee or devisee cannot or is unwilling
to accept the legacy or devise, or if the legacy or devise
for any reason should become ineffective, it shall be
merged into the mass of the estate, except in cases of
substitution and of the right of accretion. (888a)
Art. 957. The legacy or devise shall be without effect:
(1) If the testator transforms the thing
bequeathed in such a manner that it does not
retain either the form or the denomination it
had;
(2) If the testator by any title or for any cause
alienates the thing bequeathed or any part
thereof, it being understood that in the latter
case the legacy or devise shall be without
effect only with respect to the part thus
alienated. If after the alienation the thing
should again belong to the testator, even if it
be by reason of nullity of the contract, the
70
71
72
"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.
73
74
75
76
77
78
79
1.
egitimate parents and ascendants
Art. 985. In default of legitimate children and
descendants of the deceased, his parents and
ascendants shall inherit from him, to the exclusion of
collateral relatives. (935a)
Art. 986. The father and mother, if living, shall inherit in
equal shares.
Should one only of them survive, he or she shall
succeed to the entire estate of the child. (936)
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)
2.
llegitimate parents
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)
D. Collateral Line
Art. 1003. If there are no descendants, ascendants,
illegitimate children, or a surviving spouse, the
collateral relatives shall succeed to the entire estate of
the deceased in accordance with the following articles.
(946a)
Art. 1004. Should the only survivors be brothers and
sisters of the full blood, they shall inherit in equal
shares. (947)
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
80
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)
Art. 1009. Should there be neither brothers nor sisters
nor children of brothers or sisters, the other collateral
relatives shall succeed to the estate.
The latter shall succeed without distinction of lines or
preference among them by reason of relationship by the
whole blood. (954a)
Art. 1010. The right to inherit ab intestato shall not
extend beyond the fifth degree of relationship in the
collateral line. (955a)
E. The State
Art. 1011. In default of persons entitled to succeed in
accordance with the provisions of the preceding
Sections, the State shall inherit the whole estate. (956a)
Art. 1012. In order that the State may take possession of
the property mentioned in the preceding article, the
pertinent provisions of the Rules of Court must be
observed. (958a)
Art. 1013. After the payment of debts and charges, the
personal property shall be assigned to the municipality
or city where the deceased last resided in the
Philippines, and the real estate to the municipalities or
cities, respectively, in which the same is situated.
If the deceased never resided in the Philippines, the
whole estate shall be assigned to the respective
municipalities or cities where the same is located.
Such estate shall be for the benefit of public schools,
and public charitable institutions and centers, in such
municipalities or cities. The court shall distribute the
estate as the respective needs of each beneficiary may
warrant.
The court, at the instance of an interested party, or on
its own motion, may order the establishment of a
permanent trust, so that only the income from the
property shall be used. (956a)
Art. 1014. If a person legally entitled to 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. (n)
Partition
Art. 1078. Where there are two or more heirs, the whole
estate of the decedent is, before its partition, owned in
common by such heirs, subject to the payment of debts
of the deceased. (n)
Art. 1079. Partition, in general, is the separation, division
and assignment of a thing held in common among those
to whom it may belong. The thing itself may be divided,
or its value. (n)
Art. 1080. Should a person make partition of his estate
by an act inter vivos, or by will, such partition shall be
respected, insofar as it does not prejudice the legitime
of the compulsory heirs.
A parent who, in the interest of his or her family, desires
to keep any agricultural, industrial, or manufacturing
enterprise intact, may avail himself of the right granted
him in this article, by ordering that the legitime of the
other children to whom the property is not assigned, be
paid in cash. (1056a)
Art. 1081. A person may, by an act inter vivos or mortis
causa, intrust the mere power to make the partition after
his death to any person who is not one of the co-heirs.
The provisions of this and of the preceding article shall
be observed even should there be among the co-heirs a
minor or a person subject to guardianship; but the
mandatary, in such case, shall make an inventory of the
property of the estate, after notifying the co-heirs, the
creditors, and the legatees or devisees. (1057a)
Art. 1082. Every act which is intended to put an end to
indivision among co-heirs and legatees or devisees is
deemed to be a partition, although it should purport to
be a sale, and exchange, a compromise, or any other
transaction. (n)
Art. 1083. Every co-heir has a right to demand the
division of the estate unless the testator should have
expressly forbidden its partition, in which case the
period of indivision shall not exceed twenty years as
provided in article 494. This power of the testator to
prohibit division applies to the legitime.
Even though forbidden by the testator, the co-ownership
terminates when any of the causes for which
partnership is dissolved takes place, or when the court
finds for compelling reasons that division should be
ordered, upon petition of one of the co-heirs. (1051a)
Art. 1084. Voluntary heirs upon whom some condition
has been imposed cannot demand a partition until the
condition has been fulfilled; but the other co-heirs may
demand it by giving sufficient security for the rights
which the former may have in case the condition should
be complied with, and until it is known that the condition
has not been fulfilled or can never be complied with, the
partition shall be understood to be provisional. (1054a)
Art. 1085. In the partition of the estate, equality shall be
observed as far as possible, dividing the property into
lots, or assigning to each of the co-heirs things of the
same nature, quality and kind. (1061)
Art. 1086. Should a thing be indivisible, or would be
much impaired by its being divided, it may be
adjudicated to one of the heirs, provided he shall pay
the others the excess in cash.
Nevertheless, if any of the heirs should demand that the
thing be sold at public auction and that strangers be
allowed to bid, this must be done. (1062)
Art. 1087. In the partition the co-heirs shall reimburse
one another for the income and fruits which each one of
them may have received from any property of the estate,
for any useful and necessary expenses made upon such
property, and for any damage thereto through malice or
neglect. (1063)
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 by the
vendor. (1067a)
Art. 1089. The titles of acquisition or ownership of each
property shall be delivered to the co-heir to whom said
property has been adjudicated. (1065a)
Art. 1090. When the title comprises two or more pieces
of land which have been assigned to two or more coheirs, or when it covers one piece of land which has
been divided between two or more co-heirs, the title
shall be delivered to the one having the largest interest,
and authentic copies of the title shall be furnished to the
other co-heirs at the expense of the estate. If the interest
81
be at the true and real price by them paid, namely, the total
sum of P115,250.00, and trial judge, after hearing the
evidence, believed defendants, that plaintiff had no more
right, to redeem, because, 'Plaintiff was informed of the
intended sale of the 6/7 share belonging to the Horillenos.'
82
83
84
85
86
87
88
89
90