SUCCESSION

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

same family. (Illegitimate children are not compulsory heirs

(no legitimes) under the old Civil Code they can inherit
only if made a devisee or legatee in a will).
3. The abolition of the reservation the reservas and
reversions (except reserve troncal, which was reincorporated
by Congress) has been abolished.
4. The free portion of the estate of the deceased is
increased from 1/3 to . By giving the property to anyone
who has the capacity to succeed by way of a will. In the
NCC limiting to the 5th degree of relatives the inheritance
because in default of the heirs the property will revert back
to the State.
* Other laws relevant to succession other than the Civil
Code
- Rules of Court
- Family Code changes:
shares is equal among illegitimate children (3 kinds acknowledged natural children, natural children by legal
fiction, acknowledged illegitimate children who are not
natural (spurious)) change pertained to illegitimate
children (regardless of kind-they will have the same share)
- use of surname of father of illegitimate children
Other changes in the NCC - Holographic will; Ante mortem
B. Subjects of Succession
1. Who are the subjects?
The Decedent (testator)
Art. 775. In this Title, "decedent" is the general term
applied to the person whose property is transmitted
through succession, whether or not he left a will. If he
left a will, he is also called the testator.
Devisee to those who, real property is given in a will
Legatee to those who, personal property is given in a will
Heir those who inherit in the general sense.
Is a devisee an heir? Is an heir a devisee? Not necessarily
the same,
An heir has an obligation to pay the credits as to the value
of the inheritance.
Difference of heirs (782) in general sense
Specific heirs instituted by a will; Devisee an heir in the
specific sense
Article 940 par 2 if the heir, legatee or devisee, who may
have been given the choice, dies before making it, this right
shall pass to the respective heirs
CLASSIFICATION OF HEIRS
1. Compulsory Heirs
a. Primary Compulsory Heir (PCH) only legitimate children
and decedents; adopted children (only have similar rights as
that of legitimate children; they have no right of
representation (iron curtain rule) cannot inherit from
grandparents)
*to be a compulsory heir must they be related by blood?
Not necessarily
- because of adoption (adopted children has no right of
representation they cannot inherit from grandparents).
- Spouse (not blood related [blood related can be married
only beyond the 4th degree (2nd degree cousins)]
Are all decedents compulsory heirs? No, only legitimate
children
b. Secondary Compulsory Heir (SCH) legitmate parents
and ascendants (will only inherit in default of PCH)
Illegitimate parents (parents of illegitimate children) are
compulsory heirs (secondary compulsory heirs)

Basis of Law of Succession

Instances supporting concept on law of property
- testamentary (because youre the owner, you have the
right to dispose the property)
- wills
- substitution

c. Concurring Compulsory Heir (CCH) surviving spouse;

illegitimate children
2. Voluntary Heirs
Only natural persons may be voluntary heirs? No, even
juridical persons may be voluntary heirs (based on CC 1026 & 782)

Legal Philosophy of the Civil Code on Succession

3. Legal Heirs
Socialization of ownership in succession more people will
benefit from the estate
Fundamental Changes in the NCC in line with the
purpose of Socialization
1. The surviving spouse is given a better status in terms of
succession to the property of the deceased husband, her
right to the property was improved from a mere usufruct to
full ownership.
2. The illegitimate children are now given successional rights
unlike the old civil code which does not. Further, the
illegitimate childs mother or father not related by blood has
a chance of inheriting, thus, furthering the purpose of
socialization preventing the property from staying within the

WHO ARE LEGAL HEIRS? (All compulsory heirs, collateral

relatives, the state)
The Heir, devisee, Legatee (All compulsory heirs)
Is there a limitation (like the collateral relatives) in the direct
line to be able to inherit? Say, up to the 10th civil degree? No
limitation provided by law but it is humanly impossible

a person may be considered compulsory heir

but it does not necessarily mean that he will inherit
he may be disinherited, etc. (tagapagmana vs.
magmamana)
Art. 782. An heir is a person called to the succession
either by the provision of a will or by operation of law.

Devisees and legatees are persons to whom gifts of real

and personal property are respectively given by virtue of
a will.
Art. 887. The following are compulsory heirs:
(1) Legitimate children and descendants, with respect to
their legitimate parents and ascendants; (PCH)
(2) In default of the foregoing, legitimate parents and
ascendants, with respect to their legitimate children and
descendants; (SCH)
(3) The widow or widower; (CCH)
(4) Acknowledged natural children and natural children
by legal fiction; (CCH)
(5) Other illegitimate children referred to in Article 287.
(CCH)
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) (SCH)
The Collateral Relatives (not necessarily legal heirs must
be within the 5th civil degree)
2nd cousins are heirs? No, because they are 6th degree
removed from the decedent
1st cousins 4 degrees removed
Nieces & nephews, aunts & uncles (from cousins), brother of
great grand father 5 degrees removed

collateral line. (955a)

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. 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
former shall inherit per capita, and the latter per stirpes.
In relation to Article 975 which states
Art. 975. When children of one or more brothers or
sisters of the deceased survive, they shall inherit from
the latter by representation, if they survive with their
uncles or aunts. But if they alone survive, they shall
inherit in equal portions.

Division per capita entails a division of the

estate into as many equal parts as there are
persons to succeed. If there are three
children, for instance, each will receive, per
capita, one third of the estate. Division per
capita is the general rule.

Division per stirpes is made when a sole

descendant or a group of descendants
represent a person in intestate succession.
The sole representative or group of
representatives are counted as one head.
Thus, should a father be survived by a son
and four children of another son who
predeceased him, then, the estate is divided
per stirpes. The first half is given to the
surviving son and the other half shall be
divided among the four grandchildren.
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)

When there are no brothers whether the full

of half blood, the other collateral relatives
succeed which whom, however, are limited
within the 5th degree of relationship.
Because beyond this degree, it is safe to say
that, there is hardly any affection to merit
succession. Hence, for succession purposes
these persons are no longer considered
relatives.
The following rules shall apply: 1. The
nearest relative exclude the farther. 2.
Collateral of the same degree inherit equal
parts, there being no right of representation,
3. They succeed without distinction or lines or
preference among them on account of the
whole blood relationship

When a person dies intestate, leaving no

compulsory heir, nor any other relatives to
succeed him by law, the natural result would
be the complete abandonment of the
property.
The estate becomes subject to appropriation
by anyone. This condition would result in
conflicts detrimental to the public and
economic order.
In view of this, the law awards the property to
the State, in representation of the people.
Ratio: a) Dictated by public policy and, b)
private property is enjoyed only under the
protection of the State, and when no longer
used, it should revert back to the State.
The reversion of the res nullius property can
only be done through an Escheat
proceedings instituted by the Solicitor
General to the proper court ( the city or
municipality where the land is situated ). The
State, therefore does not ipso facto become
the owner of the estate left without heir. Its
right to claim must be based on a courts
ruling allowing it to have the estate, after
compliance with the procedure laid down by
the Rules of Court. (Rule 91)

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.

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)

2. Relationships (Intestate or Legal Heirs)

Art. 1009. Should there be neither brothers nor sisters

nor children of brothers or sisters, the other collateral
relatives shall succeed to the estate.

Art. 964. A series of degrees forms a line, which may be

either direct or collateral.
A direct line is that constituted by the series of degrees
among ascendants and descendants.
A collateral line is that constituted by the series of
degrees among persons who are not ascendants and
descendants, but who come from a common ancestor.
(916a)

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

Art. 963. Proximity of relationship is determined by the

number of generations. Each generation forms a degree.

Art. 965. The direct line is either descending or

ascending.
The former unites the head of the family with those who
descend from him.
The latter binds a person with those from whom he
descends. (917)
Art. 966. In the line, as many degrees are counted as
there are generations or persons, excluding the
progenitor.
In the direct line, ascent is made to the common
ancestor. Thus, the child is one degree removed from
the parent, two from the grandfather, and three from the
great-grandparent.
In the collateral line, ascent is made to the common
ancestor and then descent is made to the person with
whom the computation is to be made. Thus, a person is
two degrees removed from his brother, three from his
uncle, who is the brother of his father, four from his first
cousin, and so forth. (918a)
Art. 967. Full blood relationship is that existing between
persons who have the same father and the same
mother.
Half blood relationship is that existing between persons
who have the same father, but not the same mother, or
the same mother, but not the same father. (920a)
Art. 968. If there are several relatives of the same
degree, and one or some of them are unwilling or
incapacitated to succeed, his portion shall accrue to the
others of the same degree, save the right of
representation when it should take place. (922)

In such cases as above, the shares would

have pertained to those who repudiated or
are incapacitated do not pass to relatives of
the next degree, but are retained by other
relatives of the same degree through the right
of accretion, with the exception of the cases
where the right of representation obtains. The
right to represent a living person obtains only
in cases of disinheritance and incapacity.

Art. 969. If the inheritance should be repudiated by the

nearest relative, should there be one only, or by all the
nearest relatives called by law to succeed, should there
be several, those of the following degree shall inherit in
their own right and cannot represent the person or
persons repudiating the inheritance.

The article only pertains to repudiation. What

then would be the effect of incapacity of the
only nearest relative? The right of
representation may or may not obtain.
Should the incapacitated heir be the child of
the decease, and he in turn has children, the
latter may represent the incapacitated heir.

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

Art. 1034. In order to judge the capacity of the heir,

devisee or legatee, his qualification at the time of the
death of the decedent shall be the criterion.
In cases falling under Nos. 2, 3, or 5 of Article 1032, it
shall be necessary to wait until final judgment is
rendered, and in the case falling under No. 4, the
expiration of the month allowed for the report.
If the institution, devise or legacy should be conditional,
the time of the compliance with the condition shall also
be considered.
Art. 1039. Capacity to succeed is governed by the law of
the nation of the decedent
Art. 16. Real property as well as personal property is
subject to the law of the country where it is stipulated.
However, intestate and testamentary successions, both
with respect to the order of succession and to the
amount of successional rights and to the intrinsic
validity of testamentary provisions, shall be regulated
by the national law of the person whose succession is
under consideration, whatever may be the nature of the
property and regardless of the country wherein said
property may be found. (10a)

1. Cayetano vs. Leonides 129 SCRA 522

On January 31, 1977, Adoracion C. Campos died,

leaving her father, petitioner Hermogenes Campos
and her sisters, private respondent Nenita C. Paguia,
Remedios C. Lopez and Marieta C. Medina as the
surviving heirs. As Hermogenes Campos was the only
compulsory heir, he executed an Affidavit of
Adjudication under Rule 74, Section I of the Rules of
Court whereby he adjudicated unto himself the
ownership of the entire estate of the deceased
Adoracion Campos.
Eleven months after, on November 25, 1977, Nenita
C. Paguia filed a petition for the reprobate of a will of
the deceased, Adoracion Campos, which was
allegedly executed in the United States and for her
appointment as administratrix of the estate of the
deceased testatrix.
In her petition, Nenita alleged that the testatrix was an
American citizen at the time of her death and was a
permanent resident of 4633 Ditman Street,
Philadelphia, Pennsylvania, U.S.A.; that the testatrix
died in Manila on January 31, 1977 while temporarily
residing with her sister at 2167 Leveriza, Malate,
Manila; that during her lifetime, the testatrix made her
last will and testament on July 10, 1975, according to
the laws of Pennsylvania, U.S.A., nominating Wilfredo
Barzaga of New Jersey as executor; that after the
testatrix' death, her last will and testament was
presented, probated, allowed, and registered with the
Registry of Wills at the County of Philadelphia, U.S.A.,
that Clement L. McLaughlin, the administrator who
was appointed after Dr. Barzaga had declined and
waived his appointment as executor in favor of the
former, is also a resident of Philadelphia, U.S.A., and
that therefore, there is an urgent need for the
appointment of an administratrix to administer and
eventually distribute the properties of the estate
located in the Philippines.
Meanwhile, on June 6, 1982, petitioner Hermogenes
Campos died and left a will, which, incidentally has
been questioned by the respondent, his children and
forced heirs as, on its face patently null and void, and
a fabrication, appointing Polly Cayetano as the
executrix of his last will and testament. Cayetano,
therefore, filed a motion to substitute herself as
petitioner in the instant case which was granted by
the court on September 13, 1982.
ISSUE: Whether or not a compulsory heir may be
validly excluded by a will executed by a foreign
testator?
HELD: YES
RATIO: Although on its face, the will appeared to
have preterited the petitioner and thus, the
respondent judge should have denied its reprobate
outright, the private respondents have sufficiently
established that Adoracion was, at the time of her
death, an American citizen and a permanent resident
of Philadelphia, Pennsylvania, U.S.A. Therefore,
under Article 16 par. (2) and 1039 of the Civil Code
which respectively provide:
Art. 16 par. (2)."However, intestate and
testamentary successions, both with respect
to the order of succession and to the amount
of successional rights and to the intrinsic
validity of testamentary provisions, shall be
regulated by the national law of the person
whose succession is under consideration,
whatever may be the nature of the property
and regardless of the country wherein said
property may be found."
Art. 1039."Capacity to succeed is governed by the law
of the nation of the decedent."
the law which governs Adoracion Campo's will is the
law of Pennsylvania, U.S.A., which is the national law
of the decedent. Although the parties admit that the
Pennsylvania law does not provide for legitimes and
that all the estate may be given away by the testatrix
to a complete stranger, the petitioner argues that such
law should not apply because it would be contrary to
the sound and established public policy and would run
counter to the specific provisions of Philippine Law.
It is a settled rule that as regards the intrinsic validity
of the provisions of the will, as provided for by Article
16 (2) and 1039 of the Civil Code, the national law of
the decedent must apply. This was squarely applied
in the case of Bellis v. Bellis (20 SCRA 358) wherein
we ruled:"It is therefore evident that whatever public

policy or good customs may be involved in our system

of legitimes, Congress has not intended to extend the
same to the succession of foreign nationals. For it has
specifically chosen to leave, inter alia, the amount of
successional rights, to the decedent's national law.
Specific provisions must prevail over general ones.
b. Who may succeed?
Art. 1024. Persons not incapacitated by law may succeed by
will or ab intestato.
The provisions relating to incapacity by will are equally
applicable to intestate succession. (744, 914)

The second paragraph above merely

enunciates a general rule because Article 1027
and 1028 clearly are exceptions which do not
apply to intestate succession but only that of
testamentary dispositions.

Kinds of Incapacity: a) absolute or per se and

b) relative or per accidens
Art. 1025. In order to be capacitated to inherit, the heir,
devisee or legatee must be living at the moment the
succession opens, except in case of representation, when it
is proper.
A child already conceived at the time of the death of the
decedent is capable of succeeding provided it be born later
under the conditions prescribed in article 41. (n)
* Those not existing at the time of death is
incapacitated to succeed except on conditional wills where
succession only opens upon the happening of the condition.
Art. 1026. A testamentary disposition may be made to the
State,
provinces,
municipal
corporations,
private
corporations, organizations, or associations for religious,
scientific, cultural, educational, or charitable purposes.
All other corporations or entities may succeed under a will,
unless there is a provision to the contrary in their charter or
the laws of their creation, and always subject to the same.
(746a)
Art. 1029. Should the testator dispose of the whole or part of
his property for prayers and pious works for the benefit of his
soul, in general terms and without specifying its application,
the executor, with the court's approval shall deliver one-half
thereof or its proceeds to the church or denomination to
which the testator may belong, to be used for such prayers
and pious works, and the other half to the State, for the
purposes mentioned in Article 1013. (747a)
Art. 1030. Testamentary provisions in favor of the poor in
general, without designation of particular persons or of any
community, shall be deemed limited to the poor living in the
domicile of the testator at the time of his death, unless it
should clearly appear that his intention was otherwise.
The designation of the persons who are to be considered as
poor and the distribution of the property shall be made by
the person appointed by the testator for the purpose; in
default of such person, by the executor, and should there be
no executor, by the justice of the peace, the mayor, and the
municipal treasurer, who shall decide by a majority of votes
all questions that may arise. In all these cases, the approval
of the Court of First Instance shall be necessary.
The preceding paragraph shall apply when the testator
has disposed of his property in favor of the poor of a
definite locality.

2. Parish Priest of Victoria vs. Rigor

This case is about the efficaciousness or
enforceability of a devise of ricelands located at
Guimba, Nueva Ecija, with a total area of around
forty-four hectares. That devise was made in the will
of the late Father Pascual Rigor, a native of Victoria,
Tarlac, in favor of his nearest male relative who would
study for the priesthood.
The record discloses that Father Rigor, the parish
priest of Pulilan, Bulacan, died on August 9, 1935,
leaving a will executed on October 29, 1933 which
was probated by the Court of First Instance of Tarlac
in its order of December 5, 1935. Named as devisees
in the will were the testator's nearest relatives,
namely, his three sisters: Florencia Rigor-Escobar,
Belina Rigor-Manaloto and Nestora Rigor-Quiambao.
The testator gave a devise to his cousin, Fortunato
Gamalinda.
About thirteen years after the approval of the project
of partition, or on February 19, 1954, the parish priest
of Victoria filed in the pending testate proceeding a
petition praying for the appointment of a new
administrator
(succeeding
the
deceased
administratrix, Florencia Rigor), who should deliver to
the church the said ricelands, and further praying that
the possessors thereof be ordered to render an
accounting of the fruits. The probate court granted the
petition. A new administrator was appointed. On
January 31, 1957 the parish priest filed another
petition for the delivery of the ricelands to the church
as trustee.

The intestate heirs of Father Rigor countered with a

petition dated March 25, 1957 praying that the
bequest be declared inoperative and that they be
adjudged as the persons entitled to the said ricelands
since, as admitted by the parish priest of Victoria, "no
nearest male relative of" the testator "has ever
studied for the priesthood" (pp. 25 and 35, Record
on Appeal). That petition was opposed by the parish
priest of Victoria.
Judge De Aquino granted the second motion for
reconsideration in his order of December 10, 1957 on
the ground that the testator had a grandnephew
named Edgardo G. Cunanan (the grandson of his first
cousin) who was a seminarian in the San Jose
Seminary of the Jesuit Fathers in Quezon City. The
administrator was directed to deliver the ricelands to
the parish priest of Victoria as trustee.
The legal heirs appealed to the Court of Appeals. It
reversed that order. It held that Father Rigor had
created a testamentary trust for his nearest male
relative who would take the holy orders but that such
trust could exist only for twenty years because to
enforce it beyond that period would violate "the rule
against perpetuities". It ruled that since no legatee
claimed the ricelands within twenty years after the
testator's death, the same should pass to his legal
heirs, citing articles 888 and 912(2) of the old Civil
Code and article 870 of the new Civil Code.
The will of the testator is the first and principal
law in the matter of testaments. When his intention
is clearly and precisely expressed, any interpretation
must be in accord with the plain and literal meaning of
his words, except when it may certainly appear that
his intention was different from that literally expressed
(In re Estate of Calderon, 26 Phil. 333
"The intent of the testator is the cardinal rule in
the construction of wills." It is "the life and soul of a
will". It is "the first greatest rule, the sovereign guide,
the polestar, in giving effect to a will"
From the foregoing testamentary provisions, it may
be deduced that the testator intended to devise
the ricelands to his nearest male relative who
would become a priest, who was forbidden to sell
the ricelands, who would lose the devise if he
discontinued his studies for the priesthood, or having
been ordained a priest, he was excommunicated, and
who would be obligated to say annually twenty
masses with prayers for the repose of the souls of the
testator and his parents.
On the other hand, it is clear that the parish priest of
Victoria would administer the ricelands only in two
situations: one, during the interval of time that no
nearest male relative of the testator was studying for
the priesthood and two, in case the testator's nephew
became a priest and he was excommunicated.
What is not clear is the duration of "el intervalo de
tiempo que no haya legatario acondicionado", or how
long after the testator's death would it be determined
that he had a nephew who would pursue an
ecclesiastical vocation. It is that patent ambiguity that
has brought about the controversy between the parish
priest of Victoria and the testator's legal heirs.
Interwoven with that equivocal provision is the time
when the nearest male relative who would study for
the priesthood should be determined. Did the testator
contemplate only his nearest male relative at the time
of his death? Or did he have in mind any of his
nearest male relatives at anytime after his death?
We hold that the said bequest refers to the testator's
nearest male relative living at the time of his death
and not to any indefinite time thereafter. "In order to
be capacitated to inherit, the heir, devisee or legatee
must be living at the moment the succession opens,
except in case of representation, when it is proper"
(Art. 1025, Civil Code).
The said testamentary provisions should be sensibly
or reasonably construed. To construe them as
referring to the testator's nearest male relative at
anytime after his death would render the provisions
difficult to apply and create uncertainty as to the
disposition of his estate. That could not have been his
intention.
In 1935, when the testator died, his nearest legal
heirs were his three sisters or second-degree
relatives, Mrs. Escobar, Mrs. Manaloto and Mrs.
Quiambao. Obviously, when the testator specified his
nearest male relative, he must have had in mind his

nephew or a son of his sister, who would be his 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

or legacy shall, so far only as concerns such

person, or spouse, or parent, or child of such
person, or any one claiming under such person or
spouse, or parent, or child, be void, unless there
are three other competent witnesses to such will.
However, such person so attesting shall be
admitted as a witness as if such devise or legacy
had not been made or given. (n)
(5) Any physician, surgeon, nurse, health officer or
druggist who took care of the testator during his last
illness;
(6) Individuals, associations and corporations not
permitted by law to inherit. (745, 752, 753, 754a)
Art. 1028. The prohibitions mentioned in article 739,
concerning donations inter vivos shall apply to
testamentary provisions.
It will be the third person who had a relationship who
will be incapacitated
Art. 1031. A testamentary provision in favor of a
disqualified person, even though made under the guise
of an onerous contract, or made through an
intermediary, shall be void. (755)
Art. 1032. The following are incapable of succeeding by
reason of unworthiness: Acts of unworthiness includes
bot testate and intestate succession
(1) Parents who have abandoned their children or
induced their daughters to lead a corrupt or immoral
life, or attempted against their virtue;
(2) Any person who has been convicted of an
attempt against the life of the testator, his or her
spouse, descendants, or ascendants;
Attempt against the life presupposes intent to kill; it is
the minimum wrong that can be done by a person to
another (if attempt is punished, what more of the more
serious crimes if committed (e.g. homicide/ murder)
(3) Any person who has accused the testator of a
crime for which the law prescribes imprisonment for six
years or more, if the accusation has been found
groundless;
(4) Any heir of full age who, having knowledge of the
violent death of the testator, should fail to report it to an
officer of the law within a month, unless the authorities
have already taken action; this prohibition shall not
apply to cases wherein, according to law, there is no
obligation to make an accusation;
(5) Any person convicted of adultery or concubinage
with the spouse of the testator; no conviction needed
only preponderance of evidence (Article 739 last
paragraph)
What is prohibited is the adulterous relationship during
the disposition of the will if it has ended long before
the execution of the will a person is entitled to inherit
(because what is prevented is the undue influence of
the paramour; and it is also against public morals)
Donations made after the affair are valid it might be
the reparation for the damaged caused by the decedent
(reputation of the paramour).
(6) Any person who by fraud, violence, intimidation, or
undue influence should cause the testator to make a
will or to change one already made;
(7) Any person who by the same means prevents
another from making a will, or from revoking one
already made, or who supplants, conceals, or alters the
latter's will;
(8) Any person who falsifies or forges a supposed will
of the decedent. (756, 673, 674a)
Acts of unworthiness can be committed after the death
of the decedent.
Forgery & concealment. It doesnt matter when the
forgery was made.
Art. 1033. The cause of unworthiness shall be without
effect if the testator had knowledge thereof at the time
he made the will, or if, having known of them
subsequently, he should condone them in writing.
(757a)
-----0----In the will of X, A was given inheritance. In the
proceeding, it was proved that A had an adulterous
relationship with the wife of X.
May A inherit? yes, if he is not convicted of adultery
or concubinage.
May A inherit even if he was convicted? Yes, if X
knew of the affair when he made the will it is implied
that he condoned the acts of his spouse & A.
Is it possible for A to still inherit even if preoponderance
is proved? yes, if the adulterous relationship had long
ended before the execution of the will.
-----o----A & B are half-brothers. B caused the death of As
child. B was given a house and lot as inheritance by X,
his father. Can B inherit? Article 1034, not without
conviction.
If B is convicted, he cannot inherit? not necessarily.
1) if the will was made after conviction (implied
condonation); 2) if in the causing o fthe death there
was no intent to kill (by reckless imprudence resulting
to death); 3) if A is not a descendant of X as when A

and B are half brothers by the other parent; 4) or if the

child is adopted there is no blood relation.
If X was an alien, then the national law of X will
determine the right of succession. (if X was a coprincipal of B Art 739)
-----0----d. Effect of alienations by the excluded heir
Art. 1036. Alienations of hereditary property, and acts
of administration performed by the excluded heir,
before the judicial order of exclusion, are valid as to the
third persons who acted in good faith; but the co-heirs
shall have a right to recover damages from the
disqualified heir.
e. Rights of the excluded Heir
Art. 1035. If the person excluded from the inheritance
by reason of incapacity should be a child or descendant
of the decedent and should have children or
descendants, the latter shall acquire his right to the
legitime.
The person so excluded shall not enjoy the usufruct
and administration of the property thus inherited by his
children
-----0---X died left a net estate of 300,000 intestate. He left 3
children A, B and C. C was incapacitated, but he has 2
children D and E. how much will each get?
= 150,000 is the legitime and 150,000 is the free
portion. A and B will each get 50,000 and D and E will
get 25,000 each.
If C is not incapacitated but he renounced his
inheritance his children will not inherit.
-----0----X was survived by legitimate children and spouse.
Spouse wants X buried in the city, the children wants X
buried in the hometown. Who has a beter right?
(actual case father left mother with the children left to
her care. The children did not see the father for 30
years. When mother died, father came who has a
better right to decide where to bury the decedent? SC
gave the ruling that the husband will have the right.
Is it not the compulsory heirs who will have the right to
determine where to bury the decedent? no, the body
of the deceased is not a property. The spouse evenif
he left for so long still has the right.
-----0----Art. 1037. The unworthy heir who is excluded from the
succession has a right to demand indemnity or any
expenses incurred in the preservation of the hereditary
property, and to enforce such credits as he may have
against the estate.
Art. 1014. If a person legally entitled 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.
f.
Liabilities of the excluded heir
Art. 1038. Any person incapable of succession, who,
disregarding the prohibition stated in the preceding
articles, entered into the possession of the hereditary
property, shall be obliged to return it together it its
accessions.
He shall be liable for all the fruits and rents he may
have received, or could have received through the
exercise of due diligence.
-----0----Are monetary obligations part of the inheritance? Yes
Article 773 and 774
An heir may only be compelled to pay (e.g. lease) as to
the extent of the value of the inheritance received.
Inherit first before deduction. From the inheritance will
be deducted amount for the payment of obligations.
-----0----g. Prescription of Action
Art. 1040. The action for a declaration of incapacity and
for the recovery of the inheritance, devise or legacy
shall be brought within five years from the time the
disqualified person took possession thereof. It may be
brought by any one who may have an interest in the
succession.
-----0----X died in 1999. A and B filed to declare C incapacitated
in 2006 and recover a rice field. May the case prosper?
it may prosper (Article 1040) the law provides that
action musth be within 5 years from the time the person
took possession of the property.
-----0----A found a deed of sale of a parcel of land with the
decedents signature. May the heirs be entitled to claim
the land 0 despite the deed of sale? Yes if the sale
was void (reyes v. CA). but it is subject to the
prescriptive period to have the contract annulled.
-----0-----

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.

As a general rule, rights and obligations under a contract are

transmitted to the heirs of the parties. The heirs cannot be
considered third parties, because there is privity of interest
between them and their predecessor. A lease contract is
transmissible to the heirs of the lessee. The heirs of a party
in whose favor a trust exists, may enforce the trust against
the trustee. The heirs of the parties to a contract may make
a valid novation of said contract.
Art. 1429. When a testate or intestate heir voluntarily
pays a debt of the decedent exceeding the value of the
property which he received by will or by the law of
intestacy from the estate of the deceased, the payment
is valid and cannot be rescinded by the payer.
Art. 1178. Subject to the laws, all rights acquired in
virtue of an obligation are transmissible, if there has
been no stipulation to the contrary.
As a general rule. Civil rights are transmissible except: 1)
expressly provided by law that they are not. 2) Stipulation of
the parties. 3) Personal rights of the debtor. An instrument
evidencing a credit may be transferred or assigned by the
creditor to another, and the transferee would be considered
in lawful possession of the same as well as the credit, unless
contrary is shown.
Transmissibility is the capability of the rights to be
transferred from one person to another.
Art. 1347. All things which are not outside the commerce
of men, including future things, may be the object of a
contract. All rights which are not intransmissible may
also be the object of contracts.
No contract may be entered into upon future inheritance
except in cases expressly authorized by law.
All services which are not contrary to law, morals, good
customs, public order or public policy may likewise be
the object of a contract.
It is essential that the object must be in existence at the time
of perfection of the contract, or that it has the possibility or
potentiality of coming into existence at some future time. By
way of exception, the law generally does not allow contracts
on future inheritance. In order to be future inheritance, the
succession must not have been opened at the time of the
contract. A contract to fall within the prohibition of this article,
the following requisites are necessary: 1. that the succession
is yet to be opened. 2. the object forms part of the
inheritance. 3. the promissor has an expectant right over the
object which is purely hereditary in nature.
An agreement to partition an estate of a living person by
those who inherit from him is void. A contract renouncing the
right to inherit from one who is still alive is void.
After the death of the person, however, the properties and
rights left by him by way of inheritance can be the subject
matter of a contract among or by his heirs, even before a
partition thereof has been made, because the rights of the
heirs are transmitted to them from the death of the
predecessor.
When the object of the contract is not a part of the
inheritance, the prohibition does not apply, even if delivery of
such object is dependent upon the death of one of the
contracting parties. Thus, life insurance contracts, and
stipulations providing for reversion of property donated in
marriage settlements in the event of the death of the donee,
are valid. Likewise, if the right of the party over the thing is
not by virtue of succession, but as creditor, the contract does
not fall within the prohibition of this article. It has been held
that in a contract of purchase by co-owners, it is valid to
stipulate that in the event of death of any of them, those who
survive will acquire the share of the predeceased.
(RPC) Art. 108. Obligation to make restoration,
reparation for damages, or indemnification for
consequential damages and actions to demand the
same; Upon whom it devolves. The obligation to
make restoration or reparation for damages and
indemnification for consequential damages devolves
upon the heirs of the person liable.
The action to demand restoration, reparation, and
indemnification likewise descends to the heirs of the
person injured.
The heirs of the person liable has no obligation if restoration
is not possible and the deceased left no property.
-----0----1 million is deposited at the bank at the time the will is
made. Upon death of X increased to 2 within 10 years
the amount increased to 3 million.
Inheritance upon death not after death. Will only be
valid if made after the death of the decedent future
inheritance not subject of .
(de borja vs de borja & bonilla vs. barcena)
Rights and obligations arising from contracts are
transmissible to the heir as a general rule.
Instances when not transmissible 1) based on nature;
2) stipulated in the contract; 3) by law
-----0-----

3. Reyes v. CA SC L-5620 July 31, 1954

4. Guinto v. Medina 50 OG # 1, p199, Oct 7, 1953
D. Opening of Succesion

Art. 777. The rights to the succession are transmitted

from the moment of the death of the decedent. (657a)
This article is criticized by some commentators. It is
contended that the right to succeed to the properties of a
person is not transmitted to anyone from the moment of the
death of such person. What happens is that the death of a
person consolidates and renders immutable, in a certain
sense, rights which up to that moment were nothing but
mere expectancy. These rights arise from the express will
of the testator or from the provisions of the law, but they
do not acquire solidity and effectiveness except from
the moment of death; before this event, the law may
change, the will of the testator may vary, and even
circumstances may be modified to such an extent that he
who is expected to receive property may be deprived of it;
but once death supervenes, the will of the testator
becomes immutable, the law as to the succession can no
longer be changed, disinheritance cannot be effected, and
the rights to the succession acquire a character of
marked permanence. What the article really means is that
succession is opened by the death of the person from whom
the inheritance comes.
The provision must therefore, be understood as meaning
that the rights to the succession of a person are transmitted
from the moment of his death, and by virtue of prior
manifestations of his will or of causes predetermined by law.
Two must be considered, therefore, the origin of the right,
and that which makes the right effective.
It is clear that the moment of death is the determining point
when the heirs acquire a definite right to inheritance whether
pure or conditional. It is immaterial whether a short or long
period of time elapse between the death of the predecessor
and the entry in the possession of the properties of the
inheritance, because the rights are always deemed to
retroact to the moment of death. The possession of
hereditary property is deemed transmitted to the heir without
interruption and from the moment of death of the decedent in
case the inheritance is accepted. The law avoids any gap to
ownership of property or a period wherein a property has no
clear owner or a period of res nullius.
Note: That death under this article is not limited to natural or
physical death, presumed death by virtue of prolonged legal
absence is included.
Art. 2263. Rights to the inheritance of a person who
died, with or without a will, before the effectivity of this
Code, shall be governed by the Civil Code of 1889, by
other previous laws, and by the Rules of Court. The
inheritance of those who, with or without a will, die after
the beginning of the effectivity of this Code, shall be
adjudicated and distributed in accordance with this new
body of laws and by the Rules of Court; but the
testamentary provisions shall be carried out insofar as
they may be permitted by this Code. Therefore,
legitimes, betterments, legacies and bequests shall be
respected; however, their amount shall be reduced if in
no other manner can every compulsory heir be given his
full share according to this Code. (Rule 12a)
The decisive fact which gives origin to the right of heirs,
devisees and legatees is the death of the decedent. This is
the basis of the present article. Thus, the provisions of the
new code relaxing the rigidity of the rules of the old code
regarding proof or recognition of natural children, were held
inapplicable to one claiming recognition and a share in the
estate of the alleged natural father who died before the new
code went into effect.
Art. 2253. The Civil Code of 1889 and other previous
laws shall govern rights originating, under said laws,
from acts done or events which took place under their
regime, even though this Code may regulate them in a
different manner, or may not recognize them. But if a
right should be declared for the first time in this Code, it
shall be effective at once, even though the act or event
which gives rise thereto may have been done or may
have occurred under prior legislation, provided said new
right does not prejudice or impair any vested or
acquired right, of the same origin. (Rule 1)
The second sentence of this article gives a retroactive effect
to newly created rights, provided they do not prejudice or
impair any vested or acquired right. Thus, compensation for
damages under article 21 of the new civil code, being a right
declared for the first time, shall be effective at once,
eventhough the acts giving rise thereto were done before the
effectivity of the new code. But the new successional rights
granted by the new Civil code in favor of illegitimate children
cannot be given retroactive effect and be made to apply to
the estate of a deceased who died before the effectivity of
the new Civil Code, for the same would have the effect of
impairing the vested rights of another who is deemed to
have become the owner of the deceaseds property upon the
latters death during the regime of the old Civil Code.
Art. 533. The possession of hereditary property is
deemed transmitted to the heir without interruption and
from the moment of the death of the decedent, in case
the inheritance is accepted.

One who validly renounces an inheritance is deemed

never to have possessed the same. (440)
The article relates to tacking of possession due to privity to
relations. By way of Example, A had been in possession of a
piece of land, which he thought was his, for eight years,
when he died. He left a son, B, who continued to occupy and
cultivate the land as administrator, while the settlement of
the properties left by A was pending. The proceedings in
court for the settlement of the estate lasted three years; in
these proceedings, B renounces his inheritance from A. The
next nearest relative of A, was C, a brother, who accepted
the inheritance. Legally, B has never been in possession
although he was materially or physically holding the
property, while C, who had never set foot upon the land, is
deemed to have been in possession from the very moment
that A died. So that, if later, a third person appears to claim
the property, C can assert ownership by prescription,
because, legally, the possession has not been interrupted
for eleven years, and ten years possession in good faith is
sufficient for prescription of ownership of real property.
Art. 1347. All things which are not outside the commerce
of men, including future things, may be the object of a
contract. All rights which are not intransmissible may
also be the object of contracts.
No contract may be entered into upon future inheritance
except in cases expressly authorized by law.
All services which are not contrary to law, morals, good
customs, public order or public policy may likewise be
the object of a contract.
Sale of future inheritance is void except in cases of Donation
Propter Nuptias (art. 84, NCC) and Partition Inter Vivos (art.
1080).
Ratio:
1. What an heir have is merely an inchoate right which does
not come to existence after death of predecessor.
2. The amount or extent of inheritance cannot be exactly
determined until death and after settlement thereof.
Art. 1461. Things having a potential existence may be
the object of the contract of sale.
The efficacy of the sale of a mere hope or expectancy is
deemed subject to the condition that the thing will come
into existence.
The sale of a vain hope or expectancy is void.
Art. 130. The future spouses may give each other in their
marriage settlements as much as one-fifth of their
present property, and with respect to their future
property, only in the event of death, to the extent laid
down by the provisions of this Code referring to
testamentary succession. (1331a)
Art. 131. The donor by reason of marriage shall release
the property donated from mortgages and all other
encumbrances upon the same, with the exception of
easements, unless in the marriage settlements or in the
contracts the contrary has been stipulated. (1332a)
Art. 132. A donation by reason of marriage is not
revocable, save in the following cases:
(1) If it is conditional and the condition is not
complied with;
(2) If the marriage is not celebrated;
(3) When the marriage takes place without the
consent of the parents or guardian, as required
by law;
(4) When the marriage is annulled, and the
donee acted in bad faith; thus, the implication of
this ground is that the donor in bad faith cannot
revoke.
(5) Upon legal separation, the donee being the
guilty spouse; thus, the implication of this article
is that the guilty donor spouse cannot revoke his
donation.
(6) When the donee has committed an act of
ingratitude as specified by the provisions of
this Code on donations in general. (1333a)
Art. 390. After an absence of seven years, it being
unknown whether or not the absentee still lives, he shall
be presumed dead for all purposes, except for those of
succession.
The absentee shall not be presumed dead for the
purpose of opening his succession till after an absence
of ten years. If he disappeared after the age of seventyfive years, an absence of five years shall be sufficient in
order that his succession may be opened. (n)
Art. 391. The following shall be presumed dead for all
purposes, including the division of the estate among the
heirs:
(1) A person on board a vessel lost during a
sea voyage, or an aeroplane which is missing,
who has not been heard of for four years since
the loss of the vessel or aeroplane;
(2) A person in the armed forces who has
taken part in war, and has been missing for
four years;
(3) A person who has been in danger of death
under other circumstances and his existence
has not been known for four years. (n)
Art. 84. If the future spouses agree upon a regime other
than the absolute community of property, they cannot
donate to each other in their marriage settlements more

than one-fifth of their present property. Any excess shall

be considered void.
Donations of future property shall be governed by the
provisions on testamentary succession and the
formalities of wills. (130a)
These donations, unlike donations of present property which
take effect upon the celebration of the marriage, take effect
upon the death of the donor spouse. It cannot be made in
the marriage settlement but in a will or testament. Its limits
are governed by the rules of testamentary succession
provided by the Civil Code. Since a will can be revoked by
the testator at any time before his death the donation propter
nuptias of future property may be so revoked. Persons other
than the affianced parties cannot give donations propter
nuptial of future property.
Art. 86. A donation by reason of marriage may be
revoked by the donor in the following cases:
(1) If the marriage is not celebrated or judicially
declared void ab initio except donations made
in the marriage settlements, which shall be
governed by Article 81;
(2) When the marriage takes place without the
consent of the parents or guardian, as required
by law;
(3) When the marriage is annulled, and the
donee acted in bad faith;
(4) Upon legal separation, the donee being the
guilty spouse;
(5) If it is with a resolutory condition and the
condition is complied with;
(6) When the donee has committed an act of
ingratitude as specified by the provisions of
the Civil Code on donations in general. (132a)
Art. 765. The donation may also be revoked at the
instance of the donor, by reason of ingratitude in the
following cases:
(1) If the donee should commit some offense
against the person, the honor or the property
of the donor, or of his wife or children under
his parental authority;
(2) If the donee imputes to the donor any
criminal offense, or any act involving moral
turpitude, even though he should prove it,
unless the crime or the act has been
committed against the donee himself, his wife
or children under his authority;
(3) If he unduly refuses him support when the
donee is legally or morally bound to give
support to the donor. (648a)
REQUISITES
FOR
THE
TRANSMISSION
OF
SUCCESSIONAL RIGHTS
1.
Express will of the testator or
provision of law
2.
Death of the person whose property
is subject of succession
3.
acceptance of the inheritance Art.
1041-1057
Express or tacit acceptance by the heir, devisee or legatee
is necessary to the perfection of the juridical relation in
succession, and indispensable to the transmission of
successional rights. To make a person succeed by the mere
fact of death of the predecessor is to deny him the right to
accept or repudiate the inheritance. However, a previous
declaration of heirship is not necessary in order that an heir
may assert his right to the property of the deceased. The
acceptance of the inheritance may, therefore, be said to be
the confirmation of the institution of the heir, the perfection of
the right to succeed.
Art. 1041. The acceptance or repudiation of the
inheritance is an act which is purely voluntary and free.
(988)
T: Acceptance is the act by which the person is called to
succeed by universal title either by the testator or by law
manifests his will of making his own the universality of the
rights and obligations which are transmitted to him.
Repudiation is the manifestation by such heir of his desire
not to succeed to the said universality.
T: Is partial acceptance allowed? Under the old civil code a
partial acceptance or repudiation is prohibited, this
prohibition was omitted in the NCC. Hence, it is submitted
that in the light of the present law, inheritance can be
accepted or repudiated partially. The argument that the
personality of the decedent cannot be continued in fraction
can no longer obtain in this jurisdiction. The heir in our law is
not the continuation of the personality of the deceased. He
stands on the same footing as a mere legatee in the Civil
Code. If the latter may accept or repudiate partially, there is
no legal reason why the heir should not be allowed to do so.
The greater right always includes the less; if total
acceptance or repudiation can be made, why not partial
acceptance or repudiation? The argument that creditors of
the estate would be prejudiced by partial acceptance has no
force; because, under our present laws, the creditors of the
estate must first be paid before it can be known whether ther
is any inheritance left to be accepted or repudiated.

Art. 1042. The effects of the acceptance or repudiation

shall always retroact to the moment of the death of the
decedent. (989)
The law seeks to insure continuity in the ownership of the
property, without hiatus or gap, even for a moment, from the
time of the death of the decedent.
The old civil code prohibited acceptance or repudiation with
a term. Is it now allowed under the NCC? No conditional
acceptance and repudiation is still prohibited. To permit this
kind of acceptance is and repudiation will be placing in
uncertainty the transmission of rights by succession. The
power to impose conditions on the transmission is inherent
only in the testator himself, as a logical consequence of his
freedom to dispose of his property. The person favored
cannot subject the transmission to conditions because he
has no right over the property until he accepts the
inheritance.
The very Nature of transmission of property by mortis causa
argues against the validity of acceptance or repudiation with
a term or condition. The law seeks to insure continuity in the
ownership of the property, without any hiatus or gap from the
time of the death of the decedent. Thus, to allow this would
be contrary to the principle of succession that inheritance is
transmitted upon death.
Art. 1043. No person may accept or repudiate an
inheritance unless he is certain of the death of the
person from whom he is to inherit, and of his right to the
inheritance. (991)
Requisites of acceptance: 1. certain of the death of the
decedent, 2. must survive the decedent, 3. must have
capacity to succeed, and 4. certain of his right to the
inheritance.
Ratio: the will of man is changeable. Even just before the
moment of his death he may change his mind. A person who
accepts from a living person an inheritance accepts or
repudiates nothing at all. If a person is uncertain of his right
to inherit then his acceptance or repudiation is ineffective.
Art. 1044. Any person having the free disposal of his
property may accept or repudiate an inheritance.
Any inheritance left to minors or incapacitated persons
may be accepted by their parents or guardians. Parents
or guardians may repudiate the inheritance left to their
wards only by judicial authorization.
The right to accept an inheritance left to the poor shall
belong to the persons designated by the testator to
determine the beneficiaries and distribute the property,
or in their default, to those mentioned in Article 1030.
(992a)
Acceptance presupposes not only rights but sometimes also
obligations. Repudiation, on the otherhand, means
alienation. Hence, persons having the capacity to succeed
but not having the capacity to dispose of their property may
not, therefore, accept or repudiate. Their legal
representatives may do so for them.
Exception to paragraph 2; where the act would be purely
beneficial to the minor or incapacitated person, the
intervention of the court is unnecessary. But where the
institution, devise or legacy is subject to a charge or
condition to be performed by the minor or incapacitated
beneficiary, we believe that the approval of the court should
be obtained. The minor should not be saddled with
obligations without the approval of the guardianship court.
Repudiation amounts to alienation of property; hence, there
must always be judicial authorization.
Art. 1045. The lawful representatives of corporations,
associations, institutions and entities qualified to
acquire property may accept any inheritance left to the
latter, but in order to repudiate it, the approval of the
court shall be necessary. (993a)
Art. 1046. Public official establishments can neither
accept nor repudiate an inheritance without the approval
of the government. (994)
Refers to organizations which have their own social and
public purpose, such as for culture separate from the mere
manifestation of governmental functions of the State.
Approval required by this article must be given by the head
of the department to which the public establishment belong
or is subordinated.
Art. 1047. A married woman of age may repudiate an
inheritance without the consent of her husband. (995a)
Art. 1048. Deaf-mutes who can read and write may
accept or repudiate the inheritance personally or
through an agent. Should they not be able to read and
write, the inheritance shall be accepted by their
guardians. These guardians may repudiate the same
with judicial approval. (996a)
Art. 1049. Acceptance may be express or tacit.
An express acceptance must be made in a public or
private document.
A tacit acceptance is one resulting from acts by which
the intention to accept is necessarily implied, or which
one would have no right to do except in the capacity of
an heir.
Acts of mere preservation or provisional administration
do not imply an acceptance of the inheritance if, through
such acts, the title or capacity of an heir has not been
assumed. (999a)

Art. 1050. An inheritance is deemed accepted:

(1) If the heirs sells, donates, or assigns his
right to a stranger, or to his co-heirs, or to any
of them;
(2) If the heir renounces the same, even though
gratuitously, for the benefit of one or more of
his co-heirs;
(3) If he renounces it for a price in favor of all
his co-heirs indiscriminately; but if this
renunciation should be gratuitous, and the coheirs in whose favor it is made are those upon
whom the portion renounced should devolve
by virtue of accretion, the inheritance shall not
be deemed as accepted. (1000)
Other acts of tacit acceptance:
1.
heir demands partition
2.
alienates some of the inheritance
3.
performs such acts which show the
clear intent ot accept.
4.
Art. 1057, failure to signify to court ones
acceptance or repudiation within 30 days from
distribution
Art. 1051. The repudiation of an inheritance shall be
made in a public or authentic instrument, or by petition
presented to the court having jurisdiction over the
testamentary or intestate proceedings. (1008)
T: The law considers the act of repudiation more solemn
than the act of acceptance; hence, the requirement of a
public or authentic writing or one presented to the judge.The
acceptance of an inheritance confirms the transmission of
the right, while repudiation makes this transmission
ineffective, producing thereby more violent and disturbing
consequences which the law cannot permit by mere
implications or presumptions.
Public instrument refers to one notarized and duly
acknowledged by a notary. Authentic here refers to one
whose genuinenessn is admitted or clearly proved.
Art. 1052. If the heir repudiates the inheritance to the
prejudice of his own creditors, the latter may petition the
court to authorize them to accept it in the name of the
heir.
The acceptance shall benefit the creditors only to an
extent sufficient to cover the amount of their credits.
The excess, should there be any, shall in no case
pertain to the renouncer, but shall be adjudicated to the
persons to whom, in accordance with the rules
established in this Code, it may belong. (1001)
The law seeks to protect the creditor. By the debtor-heirs
repudiation two are affected thereat. The co-heir who
receives more and the creditor who is prejudiced thereby.
The law favors the latter. The acceptance by the creditor
does not revoke the repudiation but only rescinds the same
to the extent sufficient to protect the interest of the creditors.
Requisites to entitle creditor to accept repudiated
inheritance:
1.
There must be a valid repudiation in
accord with law as to from
2.
There must be existing credits
3.
Judicial authorization must be obtained
by creditors to accept
4.
The repudiation prejudices the ceditors.
Exceptions:
1.
Creditors who became such after
repudiation
2.
inheritance is useless to the heir
because the debt of the estate exceeds the
inheritance left
3.
the heir-debtor is solvent and has
sufficient properties to cover his debt.
Art. 1053. If the heir should die without having accepted
or repudiated the inheritance his right shall be
transmitted to his heirs. (1006)
This is on the assumption that the heir of the heir who died
accepts his inheritance from the latter. Then he may accept
the inheritance from the original decedent.
Art. 1054. Should there be several heirs called to the
inheritance, some of them may accept and the others
may repudiate it. (1007a)
Art. 1055. If a person, who is called to the same
inheritance as an heir by will and ab intestato,
repudiates the inheritance in his capacity as a
testamentary heir, he is understood to have repudiated
it in both capacities.
Should he repudiate it as an intestate heir, without
knowledge of his being a testamentary heir, he may still
accept it in the latter capacity. (1009)
T: The repudiation of the express will of the testator includes
that of the presumed will, but the repudiation of the latter still
leaves the express will open to respect.
Ratio: An heir by will who repudiates the same, manifests his
dislike to become an heir in any concept. By his act reveals
the fact that he does not deserve to become his successor
even by intestacy.
OTOH, when an heir repudiates as legal heir may later
accept by will on the reason that a person may not desire to
succeed by intestacy but is willing to succeed by

testamentary capacity in order to follow the wishes of the

dead.
Art. 1056. The acceptance or repudiation of an
inheritance, once made, is irrevocable, and cannot be
impugned, except when it was made through any of the
causes that vitiate consent, or when an unknown will
appears. (997)
Other causes or revocation:
1.
one who accepts or repudiates who is
not entitled to the inheritance has no legal effect.
2.
when institution depends upon the
fulfillment of a suspensive condition which is not
realized
3.
birth of a posthumous child not born or
is born dead
Art. 1057. Within thirty days after the court has issued
an order for the distribution of the estate in accordance
with the Rules of Court, the heirs, devisees and legatees
shall signify to the court having jurisdiction whether
they accept or repudiate the inheritance.
If they do not do so within that time, they are deemed to
have
accepted
the
inheritance.
(n)
CASES:
5. Uson vs. Del Rosario
Maria Uson was the lawful wife of Faustino Nebreda who
upon his death in 1945 left the lands involved in this
litigation. Faustino Nebreda left no other heir except his
widow Maria Uson. However, plaintiff claims that when
Faustino Nebreda died in 1945, his common- law wife Maria
del Rosario took possession illegally of said lands thus
depriving her of their possession and enjoyment.
Defendants in their answer set up as special defense that on
February 21, 1931, Maria Uson and her husband, the late
Faustino Nebreda, executed a public document whereby
they agreed to separate as husband and wife and, in
consideration of their separation, Maria Uson was given a
parcel of land by way of alimony and in return she
renounced her right to inherit any other property that may be
left by her husband upon his death (Exhibit 1). After trial, at
which both parties presented their respective evidence, the
court rendered decision ordering the defendants to restore to
the plaintiff the ownership and possession of the lands in
dispute without special pronouncement as to costs.
Defendants interposed the present appeal.
There is no dispute that Maria Uson, plaintiff-appellee, is the
lawful wife of Faustino Nebreda, former owner of the five
parcels of lands litigated in the present case. There is
likewise no dispute that Maria del Rosario, one of the
defendants-appellants, was merely a common-law wife of
the late Faustino Nebreda with whom she had four
illegitimate children, her now co-defendants. It likewise
appears that Faustino Nebreda died in 1945 much prior to
the effectivity of the new Civil Code. With this background, it
is evident that when Faustino Nebreda died in 1945 the five
parcels of land he was seized of at the time passed from the
moment of his death to his only heir, his widow Maria Uson
(Article 657, old Civil Code). As this Court aptly said, "The
property belongs to the heirs at the moment of the death
of the ancestor as completely as if the ancestor had
executed and delivered to them a deed for the same
before his death" (Ilustre vs. Alaras Frondosa, 17 Phil.,
321). From that moment, therefore, the rights of inheritance
of Maria Uson over the lands in question became vested.
The claim of the defendants that Maria Uson had
relinquished her right over the lands in question because
she expressly renounced to inherit any future property that
her husband may acquire and leave upon his death in the
deed of separation they had entered into on February 21,
1931, cannot be entertained for the simple reason that future
inheritance cannot be the subject of a contract nor can it be
renounced (1 Manresa, 123, sixth edition; Tolentino on Civil
Code, p. 12; Osorio vs. Osorio and Ynchausti Steamship
Co., 41 Phil., 531).
But defendants contend that, while it is true that the four
minor defendants are illegitimate children of the late
Faustino Nebreda and under the old Civil Code are not
entitled to any successional rights, however, under the new
Civil Code which became in force in June, 1950, they are
given the status and rights of natural children and are
entitled to the successional rights which the law accords to
the latter (Article 2264 and article 287, new Civil Code), and
because these successional rights were declared for the first
time in the new code, they shall be given retroactive effect
even though the event which gave rise to them may have
occurred under the prior legislation (Article 2253, new Civil
Code).
There is no merit in this claim. Article 2253 above referred to
provides indeed that rights which are declared for the first
time shall have retroactive effect even though the event
which gave rise to them may have occurred under the
former legislation, but this is so only when the new rights
do not prejudice any vested or acquired right of the
same origin. Thus, said article provides that "if a right
should be declared for the first time in this Code, it shall be
effective at once, even though the act or event which gives
rise thereto may have been done or may have occurred
under the prior legislation, provided said new right does not

prejudice or impair any vested or acquired right, of the same

origin." As already stated in the early part of this decision,
the right of ownership of Maria Uson over the lands in
question became vested in 1945 upon the death of her late
husband and this is so because of the imperative provision
of the law which commands that the rights to succession are
transmitted from the moment of death (Article 657, old Civil
Code). The new right recognized by the new Civil Code in
favor of the illegitimate children of the deceased cannot,
therefore, be asserted to the impairment of the vested right
of Maria Uson over the lands in dispute.
As regards the claim that Maria Uson, while her deceased
husband was lying in state, in a gesture of pity or
compassion, agreed to assign the lands in question to the
minor children for the reason that they were acquired while
the deceased was living with their mother and Maria Uson
wanted to assuage somewhat the wrong she has done to
them, this much can be said; apart from the fact that this
claim is disputed, we are of the opinion that said
assignment, if any, partakes of the nature of a donation of
real property, inasmuch as it involves no material
consideration, and in order that it may be valid it shall be
made in a public document and must be accepted either in
the same document or in a separate one (Article 633, old
Civil Code). Inasmuch as this essential formality has not
been followed, it results that the alleged assignment or
donation has no valid effect. Wherefore, the decision
appealed from is affirmed, without costs.
6. De Borja vs. De Borja
It is uncontested that Francisco de Borja, upon the death of
his wife Josefa Tangco on 6 October 1940, filed a petition for
the probate of her will which was docketed as Special
Proceeding No. R-7866 of the Court of First Instance of
Rizal, Branch I. The will was probated on 2 April 1941. In
1946, Francisco de Borja was appointed executor and
administrator: in 1952, their son, Jose de Borja, was
appointed co-administrator. When Francisco died, on 14
April 1954, Jose became the sole administrator of the testate
estate of his mother, Jose Tangco While a widower
Francisco de Borja allegedly took unto himself a second
wife, Tasiana Ongsingco. Upon Francisco's death, Tasiana
instituted testate proceedings in the Court of First Instance
of Nueva Ecija, where, in 1955, she was appointed special
administratrix. The validity of Tasiana's marriage to
Francisco was questioned in said proceeding.
The relationship between the children of the first marriage
and Tasiana Ongsingco has been plagued with several court
suits and counter-suits; including the three cases at bar,
some eighteen (18) cases remain pending determination in
the courts. The testate estate of Josefa Tangco alone has
been unsettled for more than a quarter of a century. In order
to put an end to all these litigations, a compromise
agreement was entered into on 12 October 1963, 2 by and
between "[T]he heir and son of Francisco de Borja by his
first marriage, namely, Jose de Borja personally and as
administrator of the Testate Estate of Josefa Tangco," and
"[T]he heir and surviving spouse of Francisco de Borja by his
second marriage, Tasiana Ongsingco Vda. de Borja,
assisted by her lawyer, Atty. Luis Panaguiton, Jr."
On 16 May 1966, Jose de Borja submitted for Court
approval the agreement of 12 October 1963 to the Court of
First Instance of Rizal, in Special Proceeding No. R-7866;
and again, on 8 August 1966, to the Court of First Instance
of Nueva Ecija, in Special Proceeding No. 832. Tasiana
Ongsingco Vda. de de Borja opposed in both instances. The
Rizal court approved the compromise agreement, but the
Nueva Ecija court declared it void and unenforceable.
Special administratrix Tasiana Ongsingco Vda. de de Borja
appealed the Rizal Court's order of approval (now Supreme
Court G.R. case No. L-28040), while administrator Jose de
Borja appealed the order of disapproval (G.R. case No. L28568) by the Court of First Instance of Nueva Ecija.
The genuineness and due execution of the compromise
agreement of 12 October 1963 is not disputed, but its validity
is, nevertheless, attacked by Tasiana Ongsingco on the
ground that: (1) the heirs cannot enter into such kind of
agreement without first probating the will of Francisco de
Borja; (2) that the same involves a compromise on the
validity of the marriage between Francisco de Borja and
Tasiana Ongsingco; and (3) that even if it were valid, it has
ceased to have force and effect.
In assailing the validity of the agreement of 12 October
1963, Tasiana Ongsingco and the Probate Court of Nueva
Ecija rely on this Court's decision in Guevara vs. Guevara.
74 Phil. 479, wherein the Court's majority held the view that
the presentation of a will for probate is mandatory and that
the settlement and distribution of an estate on the basis of
intestacy when the decedent left a will, is against the law
and public policy. It is likewise pointed out by appellant
Tasiana Ongsingco that Section 1 of Rule 74 of the Revised
Rules explicitly conditions the validity of an extrajudicial
settlement of a decedent's estate by agreement between
heirs, upon the facts that "(if) the decedent left no will and no
debts, and the heirs are all of age, or the minors are
represented by their judicial and legal representatives . . ."
The will of Francisco de Borja having been submitted to the
Nueva Ecija Court and still pending probate when the 1963

10

agreement was made, those circumstances, it is argued, bar

the validity of the agreement.
Upon the other hand, in claiming the validity of the
compromise agreement, Jose de Borja stresses that at the
time it was entered into, on 12 October 1963, the governing
provision was Section 1, Rule 74 of the original Rules of
Court of 1940, which allowed the extrajudicial settlement of
the estate of a deceased person regardless of whether he
left a will or not. He also relies on the dissenting opinion of
Justice Moran, in Guevara vs. Guevara, 74 Phil. 479,
wherein was expressed the view that if the parties have
already divided the estate in accordance with a decedent's
will, the probate of the will is a useless ceremony; and if they
have divided the estate in a different manner, the probate of
the will is worse than useless.
This provision evidences beyond doubt that the ruling in the
Guevara case is not applicable to the cases at bar. There
was here no attempt to settle or distribute the estate of
Francisco de Borja among the heirs thereto before the
probate of his will. The clear object of the contract was
merely the conveyance by Tasiana Ongsingco of any and all
her individual share and interest, actual or eventual, in the
estate of Francisco de Borja and Josefa Tangco. There is no
stipulation as to any other claimant, creditor or legatee And
as a hereditary share in a decedent's estate is transmitted or
vested immediately from the moment of the death of such
causante or predecessor in interest (Civil Code of the
Philippines, Art. 777) 3 there is no legal bar to a successor
(with requisite contracting capacity) disposing of her or his
hereditary share immediately after such death, even if the
actual extent of such share is not determined until the
subsequent liquidation of the estate. 4 Of course, the effect
of such alienation is to be deemed limited to what is
ultimately adjudicated to the vendor heir. However, the
aleatory character of the contract does not affect the validity
of the transaction; neither does the coetaneous agreement
that the numerous litigations between the parties (the
approving order of the Rizal Court enumerates fourteen of
them, Rec. App. pp. 79-82) are to be considered settled and
should be dismissed, although such stipulation, as noted by
the Rizal Court, gives the contract the character of a
compromise that the law favors, for obvious reasons, if only
because it serves to avoid a multiplicity of suits.
It is likewise worthy of note in this connection that as the
surviving spouse of Francisco de Borja, Tasiana Ongsingco
was his compulsory heir under article 995 et seq. of the
present Civil Code. Wherefore, barring unworthiness or valid
disinheritance,
her
successional
interest
existed
independent of Francisco de Borja's last will and testament,
and would exist even if such will were not probated at all.
Thus, the prerequisite of a previous probate of the will, as
established in the Guevara and analogous cases, can not
apply to the case of Tasiana Ongsingco Vda. de de Borja.
This brings us to the plea that the Court of First In stance of
Rizal had no jurisdiction to approve the compromise with
Jose de Borja (Annex A) because Tasiana Ongsingco was
not an heir in the estate of Josefa Tangco pending
settlement in the Rizal Court, but she was an heir of
Francisco de Borja, whose estate was the object of Special
Proceeding No. 832 of the Court of First Instance of Nueva
Ecija. This circumstance is irrelevant, since what was sold by
Tasiana Ongsingco was only her eventual share in the
estate of her late husband, not the estate itself; and as
already shown, that eventual share she owned from the time
of Francisco's death and the Court of Nueva Ecija could not
bar her selling it. As owner of her undivided hereditary
share, Tasiana could dispose of it in favor of whomsoever
she chose Such alienation is expressly recognized and
provided for by article 1088 of the present Civil Code:
Art. 1088. Should any of the heirs sell his hereditary rights to
a stranger before the partition, any or all of the co-heirs may
be subrogated to the rights of the purchaser by reimbursing
him for the price of the sale, provided they do so within the
period of one month from the time they were notified in writing
of the sale of the vendor."
Tasiana Ongsingco further argues that her contract with
Jose de Borja (Annex "A") is void because it amounts to a
compromise as to her status and marriage with the late
Francisco de Borja. The point is without merit, for the very
opening paragraph of the agreement with Jose de Borja
(Annex "A") describes her as "the heir and surviving spouse
of Francisco de Borja by his second marriage, Tasiana
Ongsingco Vda. de de Borja", which is in itself definite
admission of her civil status. There is nothing in the text of
the agreement that would show that this recognition of
Ongsingco's status as the surviving spouse of Francisco de
Borja was only made in consideration of the cession of her
hereditary rights.
It is difficult to believe, however, that the amicable settlement
referred to in the order and motion above-mentioned was the
compromise agreement of 13 October 1963, which already
had been formally signed and executed by the parties and
duly notarized. What the record discloses is that some time
after its formalization, Ongsingco had unilaterally attempted
to back out from the compromise agreement, pleading
various reasons restated in the opposition to the Court's
approval of Annex "A" (Record on Appeal, L-20840, page
23): that the same was invalid because of the lapse of the

allegedly intended resolutory period of 60 days and because

the contract was not preceded by the probate of Francisco
de Borja's will, as required by this Court's Guevarra vs.
Guevara ruling; that Annex "A" involved a compromise
affecting Ongsingco's status as wife and widow of Francisco
de Borja, etc., all of which objections have been already
discussed.
It was natural that in view of the widow's attitude, Jose de
Borja should attempt to reach a new settlement or novatory
agreement before seeking judicial sanction and enforcement
of Annex "A", since the latter step might ultimately entail a
longer delay in attaining final remedy. That the attempt to
reach another settlement failed is apparent from the letter of
Ongsingco's counsel to Jose de Borja quoted in pages 35-36
of the brief for appellant Ongsingco in G.R. No. L-28040;
and it is more than probable that the order of 21 September
1964 and the motion of 17 June 1964 referred to the failure
of the parties' quest for a more satisfactory compromise. But
the inability to reach a novatory accord can not invalidate the
original compromise (Annex "A") and justifies the act of Jose
de Borja in finally seeking a court order for its approval and
enforcement from the Court of First Instance of Rizal, which,
as heretofore described, decreed that the agreement be
ultimately performed within 120 days from the finality of the
order, now under appeal. We conclude that in so doing, the
Rizal court acted in accordance with law, and, therefore, its
order should be upheld, while the contrary resolution of the
Court of First Instance of Nueva Ecija should be, and is,
reversed.
7. Bonilla vs. Barcena
On March 31, 1975 Fortunata Barcena, mother of minors
Rosalio Bonilla and Salvacion Bonilla and wife of Ponciano
Bonilla, instituted a civil action in the Court of First Instance
of Abra, to quiet title over certain parcels of land located in
Abra. On August 4, 1975, the defendants filed another
motion to dismiss the complaint on the ground that Fortunata
Barcena is dead and, therefore, has no legal capacity to sue.
Said motion to dismiss was heard on August 14, 1975. In
said hearing, counsel for the plaintiff confirmed the death of
Fortunata Barcena and asked for substitution by her minor
children and her husband, the petitioners herein; but the
court after the hearing immediately dismissed the case on
the ground that a dead person cannot be a real party in
interest and has no legal personality to sue.
On August 28, 1975, the court denied the motion for
reconsideration filed by counsel for the plaintiff for lack of
merit. On September 1, 1975, counsel for deceased plaintiff
filed a written manifestation praying that the minors Rosalio
Bonilla and Salvacion Bonilla be allowed to substitute their
deceased mother, but the court denied the counsel's prayer
for lack of merit. From the order, counsel for the deceased
plaintiff filed a second motion for reconsideration of the order
dismissing the complaint claiming that the same is in
violation of Sections 16 and 17 of Rule 3 of the Rules of
Court but the same was denied.
The Court reverses the respondent Court and sets aside its
order dismissing the complaint in Civil Case No. 856 and its
orders denying the motion for reconsideration of said order
of dismissal. While it is true that a person who is dead
cannot sue in court, yet he can be substituted by his heirs in
pursuing the case up to its completion. The records of this
case show that the death of Fortunata Barcena took place
on July 9, 1975 while the complaint was filed on March 31,
1975. This means that when the complaint was filed on
March 31, 1975, Fortunata Barcena was still alive, and
therefore, the court had acquired jurisdiction over her
person. If thereafter she died, the Rules of Court prescribes
the procedure whereby a party who died during the
pendency of the proceeding can be substituted. Under
Section 16, Rule 3 of the Rules of Court "whenever a party
to a pending case dies . . . it shall be the duty of his attorney
to inform the court promptly of such death . . . and to give
the name and residence of his executor, administrator,
guardian or other legal representatives." This duty was
complied with by the counsel for the deceased plaintiff when
he manifested before the respondent Court that Fortunata
Barcena died on July 9, 1975 and asked for the proper
substitution of parties in the case.
The respondent Court, however, instead of allowing the
substitution, dismissed the complaint on the ground that a
dead person has no legal personality to sue. This is a grave
error. Article 777 of the Civil Code provides "that the rights to
the succession are transmitted from the moment of the
death of the decedent." From the moment of the death of the
decedent, the heirs become the absolute owners of his
property, subject to the rights and obligations of the
decedent, and they cannot be deprived of their rights thereto
except by the methods provided for by law. 3 The moment
of death is the determining factor when the heirs acquire a
definite right to the inheritance whether such right be pure or
contingent. 4 The right of the heirs to the property of the
deceased vests in them even before judicial declaration of
their being heirs in the testate or intestate proceedings. 5
When Fortunata Barcena, therefore, died her claim or right
to the parcels of land in litigation in Civil Case No. 856, was
not extinguished by her death but was transmitted to her
heirs upon her death. Her heirs have thus acquired interest
in the properties in litigation and became parties in interest in

11

the case. There is, therefore, no reason for the respondent

Court to allow their substitution as parties in interest for the
deceased plaintiff.
8. Bough vs. Modesto

9. Borromeo-Herrera vs. Borromeo

Vito Borromeo, a widower and permanent resident of Cebu
City, died on March 13, 1952, in Paraaque, Rizal at the age
of 88 years, without forced heirs but leaving extensive
properties in the province of Cebu.
On April 19, 1952, Jose Junquera filed with the Court of First
Instance of Cebu a petition for the probate of a one page
document as the last will and testament left by the said
deceased, devising all his properties to Tomas, Fortunato
and Amelia, all surnamed Borromeo, in equal and undivided
shares, and designating Junquera as executor thereof. The
case was docketed as Special Proceedings No. 916-R. The
document, drafted in Spanish, was allegedly signed and
thumbmarked by the deceased in the presence of Cornelio
Gandionco, Eusebio Cabiluna, and Felixberto Leonardo who
acted as witnesses.
Oppositions to the probate of the will were filed. On May 28,
1960, after due trial, the probate court held that the
document presented as the will of the deceased was a
forgery.
On appeal to this Court, the decision of the probate court
disallowing the probate of the will was affirmed in Testate
Estate of Vito Borromeo, Jose H. Junquera, et al. v. Crispin
Borromeo, et al. (19 SCRA 656).
The testate proceedings was converted into an intestate
proceedings. Several parties came before the court filing
claims or petitions alleging themselves as heirs of the
intestate estate of Vito Borromeo. On April 10, 1969, the trial
court, invoking Art. 972 of the Civil Code, issued an order
declaring the following, to the exclusion of all others, as the
intestate heirs of the deceased Vito Borromeo:
1.Jose Cuenco Borromeo 2.Judge Crispin Borromeo
3.Vitaliana Borromeo 4.Patrocinio Borromeo Herrera 5.Salud
Borromeo 6.Asuncion Borromeo 7.
Marcial Borromeo
8.Amelinda Borromeo de Talam, and 9.The heirs of Canuto
Borromeo
The court also ordered that the assets of the intestate estate
of Vito Borromeo shall be divided into 4/9 and 5/9 groups
and distributed in equal and equitable shares among the 9
abovenamed declared intestate heirs.
Fortunato Borromeo filed a motion for reconsideration. In the
memorandum he submitted to support his motion for
reconsideration, Fortunato changed the basis for his claim to
a portion of the estate. He asserted and incorporated a
Waiver of Hereditary Rights dated July 31, 1967, supposedly
signed by Pilar N. Borromeo, Maria B. Putong. Jose
Borromeo, Canuto V. Borromeo, Jr., Salud Borromeo,
Patrocinio Borromeo-Herrera, Marcial Borromeo, Asuncion
Borromeo, Federico V. Borromeo, Consuelo B. Morales,
Remedios Alfonso and Amelinda B. Talam. In the waiver,
five of the nine heirs relinquished to Fortunato their shares in
the disputed estate. The motion was opposed on the ground
that the trial court, acting as a probate court, had no
jurisdiction to take cognizance of the claim; that respondent
Fortunato Borromeo is estopped from asserting the waiver
agreement; that the waiver agreement is void as it was
executed before the declaration of heirs; that the same is
void having been executed before the distribution of the
estate and before the acceptance of the inheritance; and
that it is void ab initio and inexistent for lack of subject
matter.
On December 24, 1974, after due hearing, the trial court
concluding that the five declared heirs who signed the
waiver agreement assigning their hereditary rights to
Fortunato Borromeo had lost the same rights, declared the
latter as entitled to 5/9 of the estate of Vito Borromeo.
In the present petition, the petitioner seeks to annul and set
aside the trial court's order dated December 24, 1974,
declaring respondent Fortunato Borromeo entitled to 5/9 of
the estate of Vito Borromeo and the July 7, 1975 order,
denying the motion for reconsideration.
It is further argued by the petitioner that the document
entitled "Waiver of Hereditary Rights" executed on July 31,
1967, aside from having been cancelled and revoked on
June 29, 1968, by Tomas L. Borromeo, Fortunato Borromeo
and Amelia Borromeo, is without force and effect because
there can be no effective waiver of hereditary rights before
there has been a valid acceptance of the inheritance the
heirs intend to transfer. Pursuant to Article 1043 of the Civil
Code, to make acceptance or repudiation of inheritance
valid, the person must be certain of the death of the one
from whom he is to inherit and of his right to the inheritance.
Since the petitioner and her co-heirs were not certain of their
right to the inheritance until they were declared heirs, their
rights were, therefore, uncertain. This view, according to the
petitioner, is also supported by Article 1057 of the same
Code which directs heirs, devisees, and legatees to signify

their acceptance or repudiation within thirty days after the

court has issued an order for the distribution of the estate.
Respondent Fortunato Borromeo on the other hand,
contends that under Article 1043 of the Civil Code there is
no need for a person to be first declared as heir before he
can accept or repudiate an inheritance. What is required is
that he must first be certain of the death of the person from
whom he is to inherit and that he must be certain of his right
to the inheritance. He points out that at the time of the
signing of the waiver document on July 31, 1967, the
signatories to the waiver document were certain that Vito
Borromeo was already dead as well as of their rights to the
inheritance as shown in the waiver document itself.
The prevailing jurisprudence on waiver of hereditary rights is
that "the properties included in an existing inheritance
cannot be considered as belonging to third persons with
respect to the heirs, who by fiction of law continue the
personality of the former. Nor do such properties have the
character of future property, because the heirs acquire a
right to succession from the moment of the death of the
deceased, by principle established in article 657 and applied
by article 661 of the Civil Code. according to which the heirs
succeed the deceased by the mere fact of death. More or
less, time may elapse from the moment of the death of the
deceased until the heirs enter into possession of the
hereditary property, but the acceptance in any event
retroacts to the moment of the death, in accordance with
article 989 of the Civil Code. The right is vested, although
conditioned upon the adjudication of the corresponding
hereditary portion." (Osorio v. Osorio and Ynchausti
Steamship Co., 41 Phil., 531). The heirs, therefore, could
waive their hereditary rights in 1967 even if the order to
partition the estate was issued only in 1969.
In this case, however, the purported "Waiver of Hereditary
Rights" cannot be considered to be effective. For a waiver to
exist, three elements are essential: (1) the existence of a
right; (2) the knowledge of the existence thereof; and (3) an
intention to relinquish such right. (People v. Salvador, (CA)
53 O.G. No. 22, p. 8116, 8120). The intention to waive a
right or advantage must be shown clearly and convincingly,
and when the only proof of intention rests in what a party
does, his act should be so manifestly consistent with, and
indicative of an intent to, voluntarily relinquish the particular
right or advantage that no other reasonable explanation of
his conduct is possible (67 C.J., 311). (Fernandez v. Sebido,
et al., 70 Phil., 151, 159).
The circumstances of this case show that the signatories to
the waiver document did not have the clear and convincing
intention to relinquish their rights. Thus: (1) On October 27,
1967, Fortunato, Tomas, and Amelia Borromeo filed a
pleading entitled "Compliance" wherein they submitted a
proposal for the amicable settlement of the case. In that
Compliance, they proposed to concede to all the eight (8)
intestate heirs of Vito Borromeo all properties, personal and
real, including all cash and sums of money in the hands of
the Special Administrator, as of October 31, 1967, not
contested or claimed by them in any action then pending in
the Court of First Instance of Cebu. In turn, the heirs would
waive and concede to them all the 14 contested lots. In this
document, the respondent recognizes and concedes that the
petitioner, like the other signatories to the waiver document,
is an heir of the deceased Vito Borromeo, entitled to share in
the estate.
This shows that the "Waiver of Hereditary Rights" was never
meant to be what the respondent now purports it to be. Had
the intent been otherwise, there would not be any reason for
Fortunato, Tomas, and Amelia Borromeo to mention the
heirs in the offer to settle the case amicably, and offer to
concede to them parts of the estate of the deceased; (2) On
April 21 and 30, 1969, the majority of the declared heirs
executed an Agreement on how the estate they inherited
shall be distributed. This Agreement of Partition was
approved by the trial court on August 15, 1969; (3) On June
29, 1968, the petitioner, among others, signed a document
entitled Deed of Assignment" purporting to transfer and
assign in favor of the respondent and Tomas and Amelia
Borromeo all her (Patrocinio B. Herrera's) rights, interests,
and participation as an intestate heir in the estate of the
deceased Vito Borromeo.
The stated consideration for said assignment was
P100,000.00; (4) On the same date, June 29, 1968, the
respondent Tomas, and Amelia Borromeo (assignees in the
aforementioned deed of assignment) in turn executed a
"Deed of Reconveyance" in favor of the heirs-assignors
named in the same deed of assignment. The stated
consideration was P50,000.00; (5) A Cancellation of Deed of
Assignment and Deed of Reconveyance was signed by
Tomas Borromeo and Amelia Borromeo on October 15,
1968, while Fortunato Borromeo signed this document on
March 24, 1969. In view of the foregoing, the questioned
order of the trial court dated December 24, 1974, is hereby
SET ASIDE.
E. Kinds of Succesion
Art. 778. Succession may be:
(1) Testamentary;
(2) Legal or intestate; or

12

(3) Mixed. (n)

Art. 779. Testamentary succession is that which results
from the designation of an heir, made in a will executed
in the form prescribed by law. (n)
B: Legal or Intestate succession is inexplicably not defined.
Curiously, the draft code contained a definition of this kind of
succession but for some unknown reasons it was not
included. It stated that an Intestate succession takes place
by operation of law in the absence of a valid will.
Art. 960. Legal or intestate succession takes place:
(1) If a person dies without a will, or with a void
will, or one which has subsequently lost its
validity;
(2) When the will does not institute an heir to,
or dispose of all the property belonging to the
testator. In such case, legal succession shall
take place only with respect to the property of
which the testator has not disposed;
(3) If the suspensive condition attached to the
institution of heir does not happen or is not
fulfilled, or if the heir dies before the testator,
or repudiates the inheritance, there being no
substitution, and no right of accretion takes
place;
(4) When the heir instituted is incapable of
succeeding, except in cases provided in this
Code. (912a)
T: A void will has no legal existence.
A void will and a will that later lost its validity are essentially
the same. The only difference between the two lies in the
fact that the first refers to a will that has never been valid,
but is null and void ab origine, ipso facto, while the second
refers to a valid will which later lost its validity.
Under Art. 841 a will is valid though there is no institution of
heir. In such cases the testamentary dispositions made in
accordance with law shall be carried out, and the remainder
of the property shall pass to legal heirs. Absence of
institution includes those institution which are void.
Other causes of intestacy:
1.
happening of a resolutory condition
which sets aside the institution of the heir
2.
expiration of the resolutory term or
period of institution of an heir, legatee or devisee
instituted up to a day certain
3.
noncompliance or the impossibility of
complying with the will of the testator.
4.
Preterition which results to annulment of
the institution of an heir
B: There are three instances contained in this paragraph,
although, legally, the result is the same in each instance,
i.e., there is no will.
In par. 2 validity should read as efficacy
Intestacy may be total or partial depending on the extent of
the disposition that turns out to be inoperative
Art. 780. Mixed succession is that effected partly by will
and partly by operation of law. (n)
Art. 130. The future spouses may give each other in their
marriage settlements as much as one-fifth of their
present property, and with respect to their future
property, only in the event of death, to the extent laid
down by the provisions of this Code referring to
testamentary succession.
Art. 1347. All things which are not outside the commerce
of men, including future things, may be the object of a
contract. All rights which are not intransmissible may
also be the object of contracts.
No contract may be entered into upon future inheritance
except in cases expressly authorized by law.
All services which are not contrary to law, morals, good
customs, public order or public policy may likewise be
the object of a contract.
Art. 752. The provisions of Article 750 notwithstanding,
no person may give or receive, by way of donation,
more than he may give or receive by will. The donation
shall be inofficious in all that it may exceed this
limitation. (636)
The limitation imposed by this article applies to persons who
have compulsory heirs. The amount that can be donated
depends upon the character of the compulsory heirs and the
amount of property at the time of the death of the donor. The
donation itself is not a nullity, but only subject to reduction in
so far as it exceeds what the donor could have given by will
to the donee. This amount is determinable only at the time of
the death of donor.
Art. 750. The donations may comprehend all the present
property of the donor, or part thereof, provided he
reserves, in full ownership or in usufruct, sufficient
means for the support of himself, and of all relatives
who, at the time of the acceptance of the donation, are
by law entitled to be supported by the donor. Without
such reservation, the donation shall be reduced in
petition of any person affected. (634a)

not void, but only susceptible of reduction. It is voidable with

respect to the amount necessary for the support of the donor
or his dependent relatives.
Art. 84. If the future spouses agree upon a regime other
than the absolute community of property, they cannot
donate to each other in their marriage settlements more
than one-fifth of their present property. Any excess shall
be considered void.
Donations of future property shall be governed by the
provisions on testamentary succession and the
formalities of wills. (130a)
These donations, unlike donations of present property which
take effect upon the celebration of the marriage, take effect
upon the death of the donor spouse. It cannot be made in
the marriage settlement but in a will or testament. Its limits
are governed by the rules of testamentary succession. Since
a will can be revoked by the testator at any time before his
death the donation propter nuptias of future property may be
so revoked. Persons other than the affianced parties cannot
give donations propter nuptias of future property.
There is no more contractual succession by virtue of the the
repeal of Article 130 of the Old Civil Code which was
amended under Article 84 of the Family Code. In mandating
the applicability of the rules on Succession to donation of
future property between spouses, the law, therefore,
eliminated this kind of succession. Hence, by implication
such type of succession under Article 84 is considered an
ordinary testamentary succession.
TESTAMENTARY SUCCESSION
II. WILLS
A. Definition
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)
Better definition:
A will is a personal, solemn, revocable, and free act by
which a capacitated person disposes of his property and
rights and declares or complies with the duties to take effect
after his death.
T: A will is a specie of conveyance whereby a person is
permitted, with the formalities prescribed by law to control to
a certain degree disposition of his property to take effect
after his death. However, when there is no disposition of
property, it is submitted that, although the instrument may be
considered as a will, it does not have to be probated. All
other relevant legal matters stated in the will may take effect
even without probating such as the acknowledgement of a
natural child.
A will is not necessarily an act of liberality or generosity. The
inheritance may be so burdened with legacies that all benefit
to the heir is nullified.
B. Characteristics
1.
2.
3.
4.
5.
6.
7.
8.

purely personal act;

free act w/o fraud, violence, etc.
disposition of property
essentially revocable
formally executed
testator must have testamentary capacity
Unilateral act and;
Mortis causa

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;

A donation of all the present property of the donor, without

the reservation of a sufficient amount for his subsistence, is

13

(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)
B: This is an exclusive enumeration for the causes of
disallowance of a will. These are matters involved in the
formal validity. A probate decree once final , forecloses any
subsequent challenge on any of the matter enumerated in
this article.
If any of these grounds is proved the will is void. A will is
either valid or void. If none of the defects are present the will
is valid; if any defect is present the will is void. The issue on
formal validity is what the probate proceedings will
determine. There is no such thing as a voidable will.
Art. 828. A will may be revoked by the testator at any
time before his death. Any waiver or restriction of this
right is void. (737a)
T: During the life of the testator the will is said to be
ambulatory and may be altered, revoked, or superseded at
any time. Its is of no possible effect as a will while the maker
lives.
A will may be revoked at pleasure. Revocation is an act of
the mind, terminating the potential capacity of the will to
operate at the death of the testator, manifested by some
outward and visible act or sign, symbolic thereof.
Revocation
vs.
Nullity
1. act of testator
1. proceeds from law
2. presupposes a valid act
2. inherent from the will
3. inter vivos
3. invoked After death
4. testator cannot renounce
4. can be disregarded by
heirs
B: This characteristic is consistent with the principle laid
down in Art. 777, successional rights vest only upon death.
Art. 796. All persons who are not expressly prohibited
by law may make a will. (662)
T: The law presumes capacity to make a will, thus, one must
be expressly be prohibited by law to be disqualified.
Only natural persons may make a will. Juridical persons are
not granted T.C.
Even spendthrifths or prodigal under guardianship, can
make a will. A peson under civil interdiction can make a will,
he is only disqualified fro dispositions of property inter vivos,
but not by act mortis causa.
Art. 797. Persons of either sex under eighteen years of
age cannot make a will. (n)
The manner of computation of age, sustains the view that
the required age is reached at the commencement of the
day preceeding the anniversary of the birthday; that is, it is
sufficient that the last day of the eighteenth year shall have
commenced. The law does not recognize fractions of a day
and this construction is more in accord with the liberal policy
of the law to presume capacity to make will.
Art. 798. In order to make a will it is essential that the
testator be of sound mind at the time of its execution.
(n)
T: Sound Mind is meant that the testator is able to execute
his will with an understanding of the nature of the act, such
as the recollection of the property he means to dispose of, of
the persons who are or who moght reasonably be the
objects of his bounty and the manner in which it is to be
distributed among them. It is sufficient if he understands
what he is about, even if he has less mental capacity than
would be required to make a contract.
B: the legal importance and implication of mental capacity is
that the law is interested in the legal consequences of the
testators mental capacity or incapacity not in the medical
aspects of mental disease. Concievably, the testator could
be mentally aberrant medically but testamentarily capable
or, vice versa, mentally competent medically but
testamentariy incompetent.
Art. 777. The rights to the succession are transmitted
from the moment of the death of the decedent. (657a)
B: the vesting of the successional right occurs immediately
upon the decedents death, without a moments interruption.
Art. 818. Two or more persons cannot make a will
jointly, or in the same instrument, either for their
reciprocal benefit or for the benefit of a third person.
(669)
T: A joint will is one where the same instrument is made the
will of two or more persons and is jointly signed by them.
Such will may be probate upon the death of one and

subsequently probated again upon the death of the other

testator. Usually made to dispose joint properties.
Mutual will, OTOH, may be defined as the separate wills of
two persons, which are reciprocal in their provisions. A will
that is both joint and mutual is one executed jointly by teo or
more persons and which shows on its face that the devises
are made one in consideration of the other.
Ratio for prohibition:
1. purely personal and unilateral characteristic
of wills are defeated
2. contrary to the revocable character of wills, if
one revokes the will no document is left for the
other to revoke specially in cases were the
revocation is done by destroying or tearing the
will.
3. may expose a testator to undue influence
4. may tempt one to kill the other testator
5. against public policy
6. Dimunition of Testamentary secrecy
What is actually prohibited, therefore, is the execution of a
will in a SINGLE DOCUMENT and by ONE ACT.
B: if there are separate documents, each serving one
independent will, even if they are written on the same sheet
or even back to back, they are not joint wills.
Art. 784. The making of a will is a strictly personal act; it
cannot be left in whole or in part of the discretion of a
third
person,
or
accomplished
through
the
instrumentality of an agent or attorney. (670a)
T: The testator cannot substitute the mind or will of another
for his own. But the mere mechanical act of drafting the will
may be done by a third person, inasmuch as such act does
not constitute a delegation of the will or disposition.
Art. 785. The duration or efficacy of the designation of
heirs, devisees or legatees, or the determination of the
portions which they are to take, when referred to by
name, cannot be left to the discretion of a third person.
(670a)
T: The matters mentioned in this article are testamentary in
nature; they constitute expressions of the will or disposition
of the testator. Hence, pursuant to Art. 784, it cannot be
delegated.
B: The ff. constitute the essence of will making or the
exercise of the disposing power, and thus, non-delegable:
1. the designation of heirs, devisees, legatees;
2. the duration or efficacy of such designation
including such things as conditions, terms,
substitutions
3. the determination of the portions they are to
recieve
Art. 786. The testator may entrust to a third person the
distribution of specific property or sums of money that
he may leave in general to specified classes or causes,
and also the designation of the persons, institutions or
establishments to which such property or sums are to
be given or applied. (671a)
T: the third person here does not make any disposition, but
simply carries out details in the execution of the
testamentary disposition made by the testator himself in the
will.
B: for this article to take effect the testator must determine
the ff:
1. the property or amount of money given and;
2. the class or cause to be benefited
and the ff. may be delegated:
1. designation of persons, institutions, or
establishments within the class or cause;
2. the manner of distribution.
Art. 787. The testator may not make a testamentary
disposition in such manner that another person has to
determine whether or not it is to be operative. (n)
C. Interpretation of Wills
Art. 788. If a testamentary disposition admits of different
interpretations, in case of doubt, that interpretation by
which the disposition is to be operative shall be
preferred. (n)
T: The presumption is that the testator intended a lawful
rather than an unlawful thing, and courts will not seek an
interpretation that will nullify his will or any part thereof.That
construction must be followed which will sustatn and uphold
the will in all its parts, if it can be done consistently with the
established rules of law. If the will is susceptible of two
interpretations , the doubt must be resolved in favor of the
construction which will give effect to the will, rather than the
one which will defeat it.
Art. 789. When there is an imperfect description, or
when no person or property exactly answers the
description, mistakes and omissions must be corrected,
if the error appears from the context of the will or from
extrinsic evidence, excluding the oral declarations of the
testator as to his intention; and when an uncertainty
arises upon the face of the will, as to the application of
any of its provisions, the testator's intention is to be
ascertained from the words of the will, taking into
consideration the circumstances under which it was
made, excluding such oral declarations. (n)

14

T: The first part of this article pertains to patent or extrinsic

ambiguity which appears upon the face of the instrument
such as when the testator gives a devise or legacy to
SOME of the six children of his cousin Juan
The second part pertains to latent or intrinsic ambiguity
which cannot be seen from a mere perusal or reading of the
will but appears only upon consideration of extrinsic
circumstances, such as giving legacy to my cousin Pedro,
when I fact he has two cousins named Pedro. Thus. It
occurs when:
1. two or more persons or things answer the
name or description;
2.
misdescription of the beneficiary or the gift
Extrinsic evidence is admissible to show the situation of the
testator and all the relevant facts and circumstances
surrounding him at the time of making the will, for the
purpose of explaining or resolving patent ambiguity.
B: method of resolving ambiguity, whether latent or patent is
any evidence admissible and relevant excluding the oral
declarations of testator as to his intention.
Ratio for the exclusion: B: can a dead man refute a tale?
T: the testator whose lips have been sealed by death can no
longer deny or affirm the truth of what witnesses may say he
declared, would create confusion and give rise to false
claims.
Art. 790. The words of a will are to be taken in their
ordinary and grammatical sense, unless a clear
intention to use them in another sense can be gathered,
and that other can be ascertained.
Technical words in a will are to be taken in their
technical sense, unless the context clearly indicates a
contrary intention, or unless it satisfactorily appears
that he was unacquainted with such technical sense.
(675a)
Intent of the testator is the supreme law in succession. All
rules of construction are designed to ascertain and give
effect to the intention unless the latter is contrary to law,
morals, and public policy.
The words and provisions in the will must be plainly
construed in order to avoid violations of his intentions and
real purpose.
Wills drated by skilled persons or lawyers are to be
construed with strictness giving account to the words
technical meaning, while words stated by persons not
learned in the law are interpreted liberally and in their
ordinary acceptation. Holographic wills usually made by
pesons not learned in the law should be construed liberally
in their ordinary acceptation foregoing the technical meaning
in pursuance of the policy of the law of preference on testacy
than intestacy.
Art. 791. The words of a will are to receive an
interpretation which will give to every expression some
effect, rather than one which will render any of the
expressions inoperative; and of two modes of
interpreting a will, that is to be preferred which will
prevent intestacy. (n)
Its to be presumed that every word or clause was intended
by the testator to have some meaning; and no word or
clause should be rejected if it is at all possible to give it
reasonable effect. Where two constructions are possible, the
one disregarding a word or clause of the will, and the other
giving effect to the will as a whole, th latter interpretation
must be followed.
Art. 792. The invalidity of one of several dispositions
contained in a will does not result in the invalidity of the
other dispositions, unless it is to be presumed that the
testator would not have made such other dispositions if
the first invalid disposition had not been made. (n)
B: The article makes applicable to wills the severability or
separability principle in statutory construction frequently
provided in a separability clause.
Art. 793. Property acquired after the making of a will
shall only pass thereby, as if the testator had possessed
it at the time of making the will, should it expressly
appear by the will that such was his intention. (n)
T: This article is inconsistent with the principle of inheritance
laid down under the code. The inheritance includes all the
property, rights, and obligations not extinguished by death.
To follow this article would mean that only the property at the
time of making the will shall be transmitted to the heir unless
there is an express declaration under the will to include
properties acquired before death of testator but after making
the will. This contravenes Art. 777 of the code.
Hence, it must be construed as referring only to devises and
legacies and not to inheritance. After all this article is under
the chapter of testamentary dispositions. The problem now
arises with its irreconcilable conflict with Art. 930.
Art. 794. Every devise or legacy shall cover all the
interest which the testator could device or bequeath in
the property disposed of, unless it clearly appears from
the will that he intended to convey a less interest. (n)

interest. In such cases, the intention of the testator will be

followed.

T: When the Testator does not state the extent of the

interest that he gives to the legatee or devisee in the
property transmitted, it is understood that his whole interest
passes, no more no less. But the testator, under the present
article, may manifest his intention to convey a less interest;
and under article 929, he may expressly convey a larger

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

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)
The presumption under this article is that had the testator
known the fact that another owns the property, he would not
have made the legacy. The ignorance of the testator is
presumed by law.
Its must be noted that if the subsequent change of
ownership transferred the thing to the very person to whom it
was being given as a devise or legacy, and by lucrative title,
or to another third person, the legacy is void.
Solla vs. Ascuenta
Da. Maria Solla died in June, 1883, in the municipality of
Cabugao, Ilocos Sur, leaving a will executed and recorded in
accordance with the laws then in force, but which had not
been probated in accordance with the Code of Civil
Procedure.
There were named in said will, as legatees Sergio Solla,
Cayetano Solla, Josefa Solla, Jacinto Serna, Rosenda
Lagmay,
Silvestra Sajor and Matias Sevedea, and Leandro Serrano,
as universal heir, with their shares given them by the will
above-mentioned.
Said legatees or their descendants or heirs did not judicially
claim their legacies during the life-time of Leandro Serrano,
of which he had taken possession, neither was any
testamentary proceeding instituted for the settlement of the
estate left by Maria Solla and that Leandro Serrano did not
deliver the legacies in question, which he possessed in his
name until his death, having declared the property for
taxation as his own and collected the income therefrom for
himself.
As may also be seen Leandro Serrano named his son
Simeon Serrano, as executor of his will and that he directed
him to put all of his property in order and to separate that
which came from his deceased grandmother Maria Solla,
which he gives to his said son Simeon Serrano and orders
that same be disposed of exclusively in conformity with the
wishes of his said grandmother, not forgetting the souls of all
of his grandmother's relatives and of his own for whose
repose nine masses were to be said annually during nine
days, with a solemn mass on the first and last days.
In order to determine the testator's intention, the court
should place itself as near as possible in his position, and
hence, where the language of the will is ambiguous or
doubtful, should take into consideration the situation of the
testator and the facts and circumstances surrounding him at
the time the will was executed. (40 Cyc., 1392.) Where the
testator's intention is manifest from the context of the will
and surrounding circumstances, but is obscured by inapt
and inaccurate modes of expression, the language will be
subordinated to the intention, and in order to give effect to
such intention, as far as possible, the court may depart from
the strict wording and read a word or phrase in a sense
different from that which is ordinarily attributed to it, and for
such purpose may mould or change the language of the will,
such as restricting its application or supplying omitted words
or phrases. (40 Cyc., 1399.)
In the present case, it clearly appearing that it was Maria
Solla's intention, in ordering her universal heir Leandro
Serrano in her will at the hour of his death, to insist upon the
compliance of her orders by his heirs, that the latter should
comply with her pious orders and that she did not mean her
orders concerning her legacies, the compliance of which she
had entrusted to Leandro Serrano, we are authorized to
restrict the application of the words "all that I have here
ordered" used by the said Maria Solla and the words "all her
orders" used by Leandro Serrano in their respective wills
limiting them to the pious orders and substituting the phrase
"in regard to the annual masses" after the words used by
both testators, respectively.
The trial court, therefore, committed an error in interpreting
the order of Leandro Serrano mentioned in his will as
applicable to the provisions of Maria Solla's will relative to
the legacies and not to the pious bequests exclusively.
D. Law Governing Form
Art. 795. The validity of a will as to its form depends
upon the observance of the law in force at the time it is
made.
(n)

15

instrument, the capacity of the testator, and the like, has no

retrospective effect.
However, the intrinsic validity of the will, although executed
in the Philippines, is governed by the laws of the state or
country of which the testator was a citizen or subject at the
time of his death. The place of execution has no effect
whatever upon the validity of the provisions of the will.
The law may be changed after the will has been made. The
provisions may be valid at the time it was made but may be
contrary to the law at the time of the death of the testator. In
such case, the law at the time of the death of the testator will
apply. It is the law at the time when the succession opens
which must determine the intrinsic validity of the provisions
of the will, because it is at this time that the rights are
transmitted to the heirs, devisees, or legatees.
Art. 17. The forms and solemnities of contracts, wills,
and other public instruments shall be governed by the
laws of the country in which they are executed.
When the acts referred to are executed before the
diplomatic or consular officials of the Republic of the
Philippines in a foreign country, the solemnities
established by Philippine laws shall be observed in their
execution.
Prohibitive laws concerning persons, their acts or
property, and those which have, for their object, public
order, public policy and good customs shall not be
rendered ineffective by laws or judgments promulgated,
or by determinations or conventions agreed upon in a
foreign country. (11a)
Art. 18. In matters which are governed by the Code of
Commerce and special laws, their deficiency shall be
supplied by the provisions of this Code. (16a)
Matters connected with the performance of contracts are
regulated by the law prevailing at the place of performance.
Remedies, such as the bringing of suit, admissibility of
evidence, and the statute of limitations, depend upon the law
of the place where the action is brought.
In terms of the validity and effect of obligations, the following
rules shall be followed. First, the law designated by the
parties shall be applied; if there is no stipulation on the
matter, and the parties of the same nationality, their national
law shall be applied; if this is not the case, the law of the
place of perfection of the obligation shall govern its
fulfillment; but if these places are not specified and they
cannot be deduced from the nature and circumstances of
the obligation, then the law of the domicile of the passive
subjects shall apply.
Art. 810. A person may execute a holographic will which
must be entirely written, dated, and signed by the hand
of the testator himself. It is subject to no other form, and
may be made in or out of the Philippines, and need not
be witnessed. (678, 688a)
Art. 815. When a Filipino is in a foreign country, he is
authorized to make a will in any of the forms established
by the law of the country in which he may be. Such will
may be probated in the Philippines. (n)
The article follows the general rule that the law governing
the formal vailidity of wills is the law of the place where it is
executed. Yet a Filipino may make will in a foreigh country in
conformity with our laws and not of the place of execution.
Article 816 and 817 shall govern.
Art. 816. The will of an alien who is abroad produces
effect in the Philippines if made with the formalities
prescribed by the law of the place in which he resides,
or according to the formalities observed in his country,
or in conformity with those which this Code prescribes.
(n)
Art. 817. A will made in the Philippines by a citizen or
subject of another country, which is executed in
accordance with the law of the country of which he is a
citizen or subject, and which might be proved and
allowed by the law of his own country, shall have the
same effect as if executed according to the laws of the
Philippines. (n)
If an alien executes a will in the Philippines, not in conformity
with our law, but in conformity with the law of his own state
or country, the will can be probated in the Philippines.
Art. 818. Two or more persons cannot make a will
jointly, or in the same instrument, either for their
reciprocal benefit or for the benefit of a third person.
(669)
A joint will is one where the same instrument is made the will
of two or more persons and is jointly signed by them. Such
will may be probate upon the death of one and subsequently
probated again upon the death of the other testator. Usually
made to dispose joint properties.
Mutual will, OTOH, may be defined as the separate wills of
two persons, which are reciprocal in their provisions. A will
that is both joint and mutual is one executed jointly by teo or
more persons and which shows on its face that the devises
are made one in consideration of the other.
Ratio for prohibition:
a. purely personal and unilateral characteristic
of wills are defeated

b. contrary to the revocable character of wills, if

one revokes the will no document is left for the
other to revoke specially in cases were the
revocation is done by destroying or tearing the
will.
c. may expose a testator to undue influence
d. may tempt one to kill the other testator
e. against public policy
What is actually prohibited, therefore, is the execution of a
will in a SINGLE DOCUMENT and by ONE ACT.
Art. 819. Wills, prohibited by the preceding article,
executed by Filipinos in a foreign country shall not be
valid in the Philippines, even though authorized by the
laws of the country where they may have been executed.
(733a)
Fleumer vs. Hix
It is the theory of the petitioner that the alleged will was
executed in Elkins, West Virginia, on November 3, 1925, by
Hix who had his residence in that jurisdiction, and that the
laws of West Virginia govern. To this end, there was
submitted a copy of section 3868 of Acts 1882, c. 84 as
found in West Virginia Code, Annotated, by Hogg, Charles
E., vol. 2, 1914, p. 1690, and as certified to by the Director of
the National Library. But this was far from a compliance with
the law. The laws of a foreign jurisdiction do not prove
themselves in our courts. The courts of the Philippine
Islands are not authorized to take judicial notice of the laws
of the various States of the American Union. Such laws
must be proved as facts. (In re Estate of Johnson [1918],
39 Phil., 156.) Here the requirements of the law were not
met. There was no showing that the book from which an
extract was taken was printed or published under the
authority of the State of West Virginia, as provided in section
300 of the Code of Civil Procedure. Nor was the extract from
the law attested by the certificate of the officer having charge
of the original, under the seal of the State of West Virginia,
as provided in section 301 of the Code of Civil Procedure.
No evidence was introduced to show that the extract from
the laws of West Virginia was in force at the time the alleged
will was executed.
While the appeal was pending submission in this court, the
attorney for the appellant presented an unverified petition
asking the court to accept as part of the evidence the
documents attached to the petition. One of these documents
discloses that a paper writing purporting to be the last will
and testament of Edward Randolph Hix, deceased, was
presented for probate on June 8, 1929, to the clerk of
Randolph County, State of West Virginia, in vacation, and
was duly proven by the oaths of Dana Wamsley and Joseph
L. Madden, the subscribing witnesses thereto, and ordered
to be recorded and filed. It was shown by another document
that, in vacation, on June 8, 1929, the clerk of court of
Randolph County, West Virginia, appointed Claude W.
Maxwell as administrator, cum testamento annexo, of the
estate of Edward Randolph Hix, deceased. In this
connection, it is to be noted that the application for the
probate of the will in the Philippines was filed on February
20, 1929, while the proceedings in West Virginia appear to
have been initiated on June 8, 1929. These facts are
strongly indicative of an intention to make the Philippines the
principal administration and West Virginia the ancillary
administration. However this may be, no attempt has been
made to comply with the provisions of sections 637, 638,
and 639 of the Code of Civil Procedure, for no hearing on
the question of the allowance of a will said to have been
proved and allowed in West Virginia has been requested.
There is no showing that the deceased left any property at
any place other than the Philippine Islands and no
contention that he left any in West Virginia.
Reference has been made by the parties to a divorce
purported to have been awarded Edward Randolph Hix from
Annie Cousins Hix on October 8, 1925, in the State of West
Virginia. The present proceedings do not call for any specific
pronouncements on the validity or invalidity of this alleged
divorce.For all of the foregoing, the judgment appealed from
will be affirmed, with the costs of this instance against the
appellant.Villamor, Ostrand, Johns, Romualdez and VillaReal, JJ., concur.
Dela Cerna vs. Potot
"It appears that on May 9, 1939, the spouses, Bernabe de la
Cerna and Gervasia Rebaca, executed a joint last will and
testament in the local dialect whereby they willed that 'our
two parcels of land acquired during our marriage together
with all improvements thereon shall be given to Manuela
Rebaca, our niece, whom we have nurtured since childhood,
because God did not give us any child in our union, Manuela
Rebaca being married to Nicolas Potot', and that 'while each
of the testator is yet living, he or she will continue to enjoy
the fruits of the two lands aforementioned', the said two
parcels of land being covered by Tax No. 4676 and Tax No.
6677, both situated in sitio Bucao, barrio Lugo, municipality
of Borbon, province of Cebu. Bernabe de la Cerna died on
August 30, 1939, and the aforesaid will was submitted to

16

probate by said Gervasia and Manuela before the Court of

First Instance of Cebu which, after due publication as
required by law and there being no opposition, heard the
evidence,
The appealed decision correctly held that the final decree of
probate, entered in 1939 by the Court of First Instance of
Cebu (when the testator, Bernabe de la Cerna, died), has
conclusive effect as to his last will and testament, despite
the fact that even then the Civil Code already decreed the
invalidity of joint wills, whether in favor of the joint testators,
reciprocally, or in favor of a third party (Art. 669, old Civil
Code). The error thus committed by the probate court was
an error of law, that should have been corrected by appeal,
but which did not affect the jurisdiction of the probate court,
nor the conclusive effect of its final decision, however
erroneous. A final judgment rendered on a petition for the
probate of a will is binding upon the whole world (Manalo vs.
Paredes, 47 Phil. 938; In re Estate of Johnson, 39 Phil. 156);
and public policy and sound practice demand that at the risk
of occasional errors, judgment of courts should become final
at some definite date fixed by law. Interest rei publicae ut
finis sit litium (Dy Cay vs. Crossfield, 38 Phil. 521, and other
cases cited in 2 Moran, Comments on the Rules of Court
1963 Ed., p. 322).
Petitioners, as heirs and successors of the late Bernabe de
la Cerna, are concluded by the 1939 decree admitting his
will to probate. The contention that being void the will cannot
be validated, overlooks that the ultimate decision on whether
an act is valid or void rests with the courts, and here they
have spoken with finality when the will was probated in
1939. On this count, the dismissal of their action for partition
was correct.
But the Court of Appeals should have taken into account
also, to avoid future misunderstanding, that the probate
decree in 1939 could only affect the share of the deceased
husband, Bernabe de la Cerna. It could not include the
disposition of the share of the wife, Gervasia Rebaca, who
was then still alive, and over whose interest in the conjugal
properties the probate court acquired no jurisdiction,
precisely because her estate could not then be in issue. Be it
remembered that prior to the Civil Code, a will could not be
probated during the testator's lifetime.
It follows that the validity of the joint will, in so far as the
estate of the wife was concerned, must be, on her death,
reexamined and adjudicated de novo (from the beginning),
since a joint will is considered a separate will of each
testator. Thus regarded, the holding of the Court of First
Instance of Cebu that the joint will is one prohibited by law
was correct as to the participation of the deceased Gervasia
Rebaca in the properties in question, for the reasons
extensively discussed in our decision in Bilbao vs. Bilbao, 87
Phil. 144, that explained the previous holding in Macrohon
vs. Saavedra, 51 Phil., 267. Therefore, the undivided interest
of Gervasia Rebaca should pass upon her death to her heirs
intestate, and not exclusively to the testamentary heir,
unless some other valid will in her favor is shown to exist, or
unless she be the only heir intestate of said Gervasia. It is
unnecessary to emphasize that the fact that joint wills should
be in common usage could not make them valid when our
Civil Codes consistently invalidated them, because laws are
only repealed by other subsequent laws, and no usage to
the contrary may prevail against their observance.
E. Law Governing Content
1. As to time
Art. 2263. Rights to the inheritance of a person who
died, with or without a will, before the effectivity of this
Code, shall be governed by the Civil Code of 1889, by
other previous laws, and by the Rules of Court. The
inheritance of those who, with or without a will, die after
the beginning of the effectivity of this Code, shall be
adjudicated and distributed in accordance with this new
body of laws and by the Rules of Court; but the
testamentary provisions shall be carried out insofar as
they may be permitted by this Code. Therefore,
legitimes, betterments, legacies and bequests shall be
respected; however, their amount shall be reduced if in
no other manner can every compulsory heir be given his
full share according to this Code. (Rule 12a)
The decisive fact which gives origin to the right of heirs,
devisees and legatees is the death of the decedent. This is
the basis of the present article. Thus, the provisions of the
new code relaxing the rigidity of the rules of the old code
regarding proof or recognition of natural children, were held
inapplicable to one claiming recognition and a share in the
estate of the alleged natural father who died before the new
code went into effect.
2. As to successional rights
Art. 16. Real property as well as personal property is
subject to the law of the country where it is stipulated.
However, intestate and testamentary successions, both
with respect to the order of succession and to the
amount of successional rights and to the intrinsic
validity of testamentary provisions, shall be regulated
by the national law of the person whose succession is
under consideration, whatever may be the nature of the

property and regardless of the country wherein said

property may be found. (10a)
The distribution of the estate is governed by the law of the
nation of the deceased; the present article applies in such
case. It may involve various questions such as:
1. order of succession in intestacy
2. intrinsic validity of a will
3. extent of property an heir is entitled
4. capacity to succeed of heirs
5. questions of preterition, disinheritance, and
collation.
In above cases, the national law of the decedent applies and
the ratio of which is stated by Dean Capistrano in this wise:
With regard to succession there is only one will, express in
testatmentary and presumed in intestate succession. The
oneness and universality of the inheritance cannot be
divided or broken up merely because of the different
countries where the properties of the estate are situated.
The intrinsic validity of the provisions of the will of a foreigner
who dies in the Philippines is to be determined by the laws
of his own state or country, and not by those of the
Philippines. The second paragraph of this article can only
invoked when the deceased eas vested with a descendible
interest in property within the jurisdiction of the Philippines.
When a foreign law is invoked it must be proved. (fluemer
vs. Hix)
In re the estate of Amos G. Bellis
Amos G. Bellis, born in Texas, was "a citizen of the State of
Texas and of the United States." By his first wife, Mary E.
Mallen, whom he divorced, he had five legitimate children:
Edward A. Bellis, George Bellis (who pre-deceased him in
infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis
Allsman; by his second wife, Violet Kennedy, who survived
him, he had three legitimate children: Edwin G. Bellis, Walter
S. Bellis and Dorothy Bellis; and finally, he had three
illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis
and Miriam Palma Bellis.
On August 5, 1952, Amos G. Bellis executed a will in the
Philippines, in which he directed that after all taxes,
obligations, and expenses of administration are paid for, his
distributable estate should be divided, in trust, in the
following order and manner: (a) $240,000.00 to his first wife,
Mary E. Mallen; (b) P120,000.00 to his three illegitimate
children, Amos Bellis, Jr., Maria Cristina Bellis, and Miriam
Palma Bellis, or P40,000.00 each and (c) after the foregoing
two items have been satisfied, the remainder shall go to his
seven surviving children by his first and second wives,
namely: Edward A. Bellis, Henry A. Bellis, Alexander Bellis,
and Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis,
and Dorothy E. Bellis, in equal shares.
Subsequently, or on July 8, 1958, Amos G. Bellis died, a
resident of San Antonio, Texas, U.S.A. His will was admitted
to probate in the Court of First Instance of Manila on
September 15, 1958.
The People's Bank and Trust Company, as executor of the
will, paid all the bequests therein including the amount of
$240,000.00 in the form of shares of stock to Mary E. Mallen
and to the three (3) illegitimate children, Amos Bellis, Jr.,
Maria Cristina Bellis and Miriam Palma Bellis, various
amounts totalling P40,000.00 each in satisfaction of their
respective legacies, or a total of P120,000.00, which it
released from time to time according as the lower court
approved and allowed the various motions or petitions filed
by the latter three requesting partial advances on account of
their respective legacies.
On January 17, 1964, Maria Cristina Bellis and Miriam
Palma Bellis filed their respective oppositions to the project
of partition on the ground that they were deprived of their
legitimes as illegitimate children and, therefore, compulsory
heirs of the deceased.
Article 16, par. 2, and Art. 1039 of the Civil Code, render
applicable the national law of the decedent, in intestate or
testamentary successions, with regard to four items: (a) the
order of succession; (b) the amount of successional rights;
(c) the intrinsic validity of the provisions of the will; and (d)
the capacity to succeed. They provide that
"Art 16. Real property as well as personal
property is subject to the law of the country where
it is situated.
"However",
intestate
and
testamentary
successions, both with respect to the order of
succession and to the amount of successional
rights and to the intrinsic validity of
testamentary provisions, shall be regulated by
the national law of the person whose
succession is under consideration, whatever
may be the nature of the property and
regardless of the country wherein said property
may be found."
"Art. 1039.
Capacity to succeed is
governed by the law of the nation of the
decedent."
Appellants would however counter that Article 17, paragraph
three, of the Civil Code, stating that
"Prohibitive laws concerning persons, their acts or
property, and those which have for their object
public order, public policy and good customs shall
not be rendered ineffective by laws, or judgments

17

promulgated, or by determinations or conventions

agreed upon in a foreign country."
prevails as the exception to Art. 16, par. 2 of the Civil Code
aforequoted. This is not correct. Precisely, Congress deleted
the phrase, "notwithstanding the provisions of this and the
next preceding article" when they incorporated Art. 11 of the
old Civil Code as Art. 17 of the new Civil Code, while
reproducing without substantial change the second
paragraph of Art. 10 of the old Civil Code as Art. 16 in the
new. It must have been their purpose to make the second
paragraph of Art. 16 a specific provision in itself which must
be applied in testate and intestate successions. As further
indication of this legislative intent, Congress added a new
provision, under Art. 1039, which decrees that capacity to
succeed is to be governed by the national law of the
decedent.
It is therefore evident that whatever public policy or good
customs may be involved in our system of legitimes,
Congress has not intended to extend the same to the
succession of foreign nationals. For it has specifically
chosen to leave, inter alia, the amount of successional
rights, to the decedent's national Law. Specific provisions
must prevail over general ones.
Appellants would also point out that the decedent executed
two wills one to govern his Texas estate and the other his
Philippine estate arguing from this that he intended
Philippine law to govern his Philippine estate. Assuming that
such was the decedent's intention in executing a separate
Philippine will, it would not alter the law, for as this Court
ruled in Miciano vs. Brimo, 50 Phil. 867, 870, a provision in a
foreigner's will to the effect that his properties shall be
distributed in accordance with Philippine law and not with his
national law, is illegal and void, for his national law cannot
be ignored in regard to those matters that Article 10 now
Article 16 of the Civil Code states said national law should
govern.
The parties admit that the decedent, Amos G. Bellis, was a
citizen of the State of Texas, U.S.A., and that under the laws
of Texas, there are no forced heirs or legitimes. Accordingly,
since the intrinsic validity of the provision of the will and the
amount of successional rights are to be determined under
Texas law, the Philippine law on legitimes cannot be applied
to the testacy of Amos G. Bellis.
Cayetano vs. Leonides 129 SCRA 522
On January 31, 1977, Adoracion C. Campos died, leaving
her father, petitioner Hermogenes Campos and her sisters,
private respondent Nenita C. Paguia, Remedios C. Lopez
and Marieta C. Medina as the surviving heirs. As
Hermogenes Campos was the only compulsory heir, he
executed an Affidavit of Adjudication under Rule 74, Section
I of the Rules of Court whereby he adjudicated unto himself
the ownership of the entire estate of the deceased
Adoracion Campos.
Eleven months after, on November 25, 1977, Nenita C.
Paguia filed a petition for the reprobate of a will of the
deceased, Adoracion Campos, which was allegedly
executed in the United States and for her appointment as
administratrix of the estate of the deceased testatrix.
In her petition, Nenita alleged that the testatrix was an
American citizen at the time of her death and was a
permanent resident of 4633 Ditman Street, Philadelphia,
Pennsylvania, U.S.A.; that the testatrix died in Manila on
January 31, 1977 while temporarily residing with her sister at
2167 Leveriza, Malate, Manila; that during her lifetime, the
testatrix made her last will and testament on July 10, 1975,
according to the laws of Pennsylvania, U.S.A., nominating
Wilfredo Barzaga of New Jersey as executor; that after the
testatrix' death, her last will and testament was presented,
probated, allowed, and registered with the Registry of Wills
at the County of Philadelphia, U.S.A., that Clement L.
McLaughlin, the administrator who was appointed after Dr.
Barzaga had declined and waived his appointment as
executor in favor of the former, is also a resident of
Philadelphia, U.S.A., and that therefore, there is an urgent
need for the appointment of an administratrix to administer
and eventually distribute the properties of the estate located
in the Philippines.
Meanwhile, on June 6, 1982, petitioner Hermogenes
Campos died and left a will, which, incidentally has been
questioned by the respondent, his children and forced heirs
as, on its face patently null and void, and a fabrication,
appointing Polly Cayetano as the executrix of his last will
and testament. Cayetano, therefore, filed a motion to
substitute herself as petitioner in the instant case which was
granted by the court on September 13, 1982.
ISSUE: Whether or not a compulsory heir may be validly
excluded by a will executed by a foreign testator?
HELD: YES
RATIO: Although on its face, the will appeared to have
preterited the petitioner and thus, the respondent judge
should have denied its reprobate outright, the private
respondents have sufficiently established that Adoracion
was, at the time of her death, an American citizen and a
permanent resident of Philadelphia, Pennsylvania, U.S.A.
Therefore, under Article 16 par. (2) and 1039 of the Civil
Code which respectively provide:

Art. 16 par. (2)."However, intestate and

testamentary successions, both with respect to the
order of succession and to the amount of
successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the
national law of the person whose succession is
under consideration, whatever may be the nature
of the property and regardless of the country
wherein said property may be found."
Art. 1039."Capacity to succeed is governed by the law of the
nation of the decedent."
the law which governs Adoracion Campo's will is the law of
Pennsylvania, U.S.A., which is the national law of the
decedent. Although the parties admit that the Pennsylvania
law does not provide for legitimes and that all the estate may
be given away by the testatrix to a complete stranger, the
petitioner argues that such law should not apply because it
would be contrary to the sound and established public policy
and would run counter to the specific provisions of Philippine
Law.
It is a settled rule that as regards the intrinsic validity of the
provisions of the will, as provided for by Article 16 (2) and
1039 of the Civil Code, the national law of the decedent
must apply. This was squarely applied in the case of Bellis v.
Bellis (20 SCRA 358) wherein we ruled:"It is therefore
evident that whatever public policy or good customs may be
involved in our system of legitimes, Congress has not
intended to extend the same to the succession of foreign
nationals. For it has specifically chosen to leave, inter alia,
the amount of successional rights, to the decedent's national
law. Specific provisions must prevail over general ones.
III. TESTAMENTARY CAPACITY
A. Who may make a will?
Art. 796. All persons who are not expressly prohibited
by law may make a will. (662)
Art. 797. Persons of either sex under eighteen years of
age cannot make a will. (n)
Art. 798. In order to make a will it is essential that the
testator be of sound mind at the time of its execution.
(n)
Art. 799. To be of sound mind, it is not necessary that
the testator be in full possession of all his reasoning
faculties, or that his mind be wholly unbroken,
unimpaired, or unshattered by disease, injury or other
cause.
It shall be sufficient if the testator was able at the time of
making the will to know the nature of the estate to be
disposed of, the proper objects of his bounty, and the
character of the testamentary act. (n)
B: requisite of sanity to execute a will is based on the
testators ability to know three things:
1.
Nature of the estate to be disposedthe testator should have a fairly accurate
knowledge of what he owns. Accurate should be
understood in the relative sense. The more one
owns the less accurate is ones knowledge of his
estate expected to be. Henry Sy might have a far
less accurate picture of his economic empire than
a poverty stricken laborer.
2.
Proper objects of his bounty- under
ordinary circumstances, the testator should know
his relatives in the proximate degrees. As the
degree of relationship goes further, it is less likely
that he knows them.
3.
Character of the testamentary act- it
is not required, in order for this requisite to be
present, that the testator know the legal nature of
a will with the erudition of a civilest. All that he
need know is that the document he is executing is
one that disposes of his property upon death.
T: Neither sickness, old age, deafness, senile debility,
blindness, nor poor memory is by itself sufficient to establish
a presumption of lack of testamentary capacity, actual
insanity need not exist in order that a person may be said to
lack testamentary capacity. It is enough that the mental
condition be such that there is want of understanding of the
nature and consequences of the disposition by will.
Art. 800. The law presumes that every person is of
sound mind, in the absence of proof to the contrary.
The burden of proof that the testator was not of sound
mind at the time of making his dispositions is on the
person who opposes the probate of the will; but if the
testator, one month, or less, before making his will was
publicly known to be insane, the person who maintains
the validity of the will must prove that the testator made
it during a lucid interval. (n)
Art. 801. Supervening incapacity does not invalidate an
effective will, nor is the will of an incapable validated by
the supervening of capacity. (n)
The capacity of the person who leaves a will is to be
determined as of the time of execution of such will. Any prior
or subsequent incapacity will not affect the validity of the will.
It will, however, in cases of prior incapacity within 30 days
from the making of the will merely shift the burden of proof of
capacity on the person maintaining the validity of the will.
(Art. 800)

18

Art. 802. A married woman may make a will without the

consent of her husband, and without the authority of the
court. (n)
Art. 803. A married woman may dispose by will of all her
separate property as well as her share of the conjugal
partnership or absolute community property. (n)
B. Supervening Incapacity
Art. 801. Supervening incapacity does not invalidate an
effective will, nor is the will of an incapable validated by
the supervening of capacity. (n)
The capacity of the person who leaves a will is to be
determined as of the time of execution of such will. Any prior
or subsequent incapacity will not affect the validity of the will.
It will, however, in cases of prior incapacity within 30 days
from the making of the will merely shift the burden of proof of
capacity on the person maintaining the validity of the will.
(Art. 800)
IV. SOLEMNITIES OF WILLS
A. Kinds of Wills
Art. 804. Every will must be in writing and executed in a
language or dialect known to the testator. (n)
Art. 810. A person may execute a holographic will which
must be entirely written, dated, and signed by the hand
of the testator himself. It is subject to no other form, and
may be made in or out of the Philippines, and need not
be witnessed. (678, 688a)
T: the following are the advantages of a holographic will:
1. simple and easy to make for those a) who have no means
to employ a lawyer, b)who are timid and wants to reread
their wills before signing, c) those who have only very little
property to dispose
2. It induces foreigners in this jurisdiction to set down their
last wishes;
3. guaranties the absolute secrecy of the testamentary
disposition because it is not witnessed.
The disadvantages are:
1. does not gauranty testamentary capacity of testator;
2. no protection against vices of consent which may not be
known in case of death;
3. due to faulty expression, it may not express the true will of
the testator;
4. for the same reason, it can be easily concealed.
May a blind testator make a valid holographic will? There is
no question as to notarial wills it being allowed under the law
provided the will was read twice to the testator. As to
holographic wills, it is submitted that it may be allowed. The
testator, having written the holographic will by his own hand,
knows what it contains. He may have learned to write before
he became blind, or inspite of his blindness. This view has
been sustained in Louisiana, where it has been held that
blindness does not of itself prevent the making of a valid
holographic.
A HW may be in any form, but the intent to dispose mortis
causa must clearly appear in the context.
What would be the effect of words written by another and
inserted among the words written by the testator?
1. if insertion was made after execution bu w/o consent,
such is deemed not written;
2. if the insertion was after execution with the consent of
testator, the will remains valid but the insertion void;
3. if insertion was after execution and validated by testator
by his signature, the entire will is void because it is not
wholly written by the testator himself;
4. if insertion is contemporaneous to the execution the
effect same as no. 3.
As to date, the day, month, and year on which the will was
made should be indicated therein. The day and the month,
however, may be indicated by implication, so long as the
designation leaves no room for doubt as to exact date.
The validity of the holographic will is defeated by the fact
that part of the date is printed. Such as that written on a daily
planner though the contents are entirely written by the hand
but the testator relied on the date indicated on the planner,
the same is still extrinsically void.
Signatures of witnesses to a HW will not invalidate the will,
but will be disregarded as a mere surplusage.
B. Notarial Wiils
1. General Requirements
Art. 804. Every will must be in writing and executed in a
language or dialect known to the testator. (n)
Our law does not recognize nuncupative wills, which is one
that is not written, but orally declared by the testator in his
last illness, in contemplation of death, and before a sufficient
number of competent witnesses.
The above requirement applies to both holographic and
notarial. In notarial wills it is immaterial who performs the
mechanical act writing the will, so long as the testator signs
it or has somebody sign his name in his presence upon his
direction.
As to the language or dialect, when a will is executed in a
certain province or locality, in the dialect currently used in
such province or locality, there arises a presumption that the
testator knew the dialect so used, in the absence of contrary
evidence. It is not required that the will express that the

language is known by the testator it is a fact which may be

proved by evidence aliunde.
The attestation clause of an ordinary will does not have to be
written in a language or dialect known to the testator. It is not
part of the testamentary disposition. The language used in
the attestation clause does not even have to be known to the
witness; it should, however, be translated to them.
Suroza vs. Hon. Honrado
Mauro Suroza, a corporal in the 45th Infantry of the U.S.
Army (Philippine Scouts), Fort McKinley, married Marcelina
Salvador in 1923 (p. 150, Spec. Proc. No. 7816). They were
childless. They reared a boy named Agapito who used the
surname Suroza and who considered them as his parents as
shown in his 1945 marriage contract with Nenita de Vera (p.
15, Rollo of CA-G.R. No. 08654, p. 148, Rollo of Testate
Case showing that Agapito was 5 years old when Mauro
married Marcelina in 1923).
Mauro died in 1942. Marcelina, as a veteran's widow,
became a pensioner of the Federal Government. That
explains why on her death she had accumulated some cash
in two banks.
Agapito and Nenita begot a child named Lilia who became a
medical technologist and went abroad. Agapito also became
a soldier. He was disabled and his wife Nenita was
appointed as his guardian in 1953 when he was declared an
incompetent in Special Proceedings No. 1807 of the Court of
First Instance of Rizal, Pasig Branch I (p. 16, Rollo of CAG.R. No. 08654-R)
In that connection, it should be noted that a woman named
Arsenia de la Cruz wanted also to be his guardian in another
proceeding. Arsenia tried to prove that Nenita was living
separately from Agapito and that she (Nenita) admitted to
Marcelina that she was unfaithful to Agapito (pp. 61-63,
Record of testate case)
Judge Bienvenido A. Tan dismissed the second
guardianship
proceeding
and
confirmed
Nenita's
appointment as guardian of Agapito (p. 16, Rollo of CA
case). Agapito has been staying in a veteran's hospital in
San Francisco or Palo Alto, California (p. 87, Record)
On a date not indicated in the record, the spouses Antonio
Sy and Hermogena Talan begot a child named Marilyn Sy,
who, when a few days old, was entrusted to Arsenia de la
Cruz (apparently a girl friend of Agapito) and who was later
delivered to Marcelina Salvador Suroza who brought her up
as a supposed daughter of Agapito and as her
granddaughter (pp. 23-26, Rollo of CA-G.R. No. SP-08654R). Marilyn used the surname Suroza. She stayed with
Marcelina but was not legally adopted by Agapito. She
married Oscar Medrano and is residing at 7666 J.B. Roxas
Street, Makati, apparently a neighbor of Marina Paje, a
resident of 7668 J.B. Roxas Street.
Marcelina supposedly executed a notarial will in Manila
on July 23, 1973, when she was 73 years old. That will,
which is in English, was thumb marked by her. She was
illiterate. Her letters in English to the Veterans
Administration were also thumb marked by her (pp. 3839, CA Rollo). In that will, Marcelina bequeathed all her
estate to her supposed granddaughter Marilyn.
On April 24, Nenita filed in the testate case an omnibus
petition "to set aside proceedings, admit opposition with
counter-petition of administration and preliminary injunction."
Nenita in that motion reiterated her allegation that Marilyn
was a stranger to Marcelina, that the will was not duly
executed and attested, that it was procured by means of
undue influence employed by Marina and Marilyn and that
the thumb marks of the testatrix were procured by fraud or
trick.
About ten months later, in a verified complaint dated October
12,1978, filed in this Court, Nenita charged Judge Honrado
with having probated the fraudulent will of Marcelina. The
complainant reiterated her contention that the testatrix was
illiterate as shown by the fact that she affixed her thumb
mark to the will and that she did not know English, the
language in which the will was written. (In the decree of
probate Judge Honrado did not make any finding that the will
was written in a language known to the testatrix).
Nenita further alleged that Judge Honrado, in spite of his
knowledge that the testatrix had a son named Agapito (the
testatrix's supposed sole compulsory and legal heir), who
was preterited in the will, did not take into account the
consequences of such a preterition.
We hold that disciplinary action should be taken against
respondent judge for his improper disposition of the testate
case which might have resulted in a miscarriage of justice
because the decedent's legal heirs and not the instituted
heiress in the void will should have inherited the decedent's
estate.

19

A judge may be criminally liable for knowingly rendering an

unjust judgment or interlocutory order or rendering a
manifestly unjust judgment or interlocutory order by reason
of inexcusable negligence or ignorance (Arts. 204 to 206,
Revised Penal Code)
In this case, respondent judge, on perusing the will and
noting that it was written in English and was thumb marked
by an obviously illiterate testatrix, could have readily
perceived that the will is void.
In the opening paragraph of the will, it was stated that
English was a language "understood and known" to the
testatrix. But in its concluding paragraph, it was stated that
the will was read to the testatrix "and translated into Filipino
language." (p. 16, Record of testate case) That could only
mean that the will was written in a language not known to
the illiterate testatrix and, therefore, it is void because of the
mandatory provision of Article 804 of the Civil Code that
every will must be executed in a language or dialect known
to the testator. Thus, a will written in English, which was not
known to the Igorot testator, is void and was disallowed
(Acop vs. Piraso, 52 Phil. 660)
The hasty preparation of the will is shown in the attestation
clause and notarial acknowledgment where Marcelina
Salvador Suroza is repeatedly referred to as the "testator"
instead of "testatrix."
Had respondent judge been careful and observant, he could
have noted not only the anomaly as to the language of the
will but also that there was something wrong in instituting the
supposed granddaughter as sole heiress and giving nothing
at all to her supposed father who was still alive.
Furthermore, after the hearing conducted by respondent
deputy clerk of court, respondent judge could have noticed
that the notary was not presented as a witness.
In spite of the absence of an opposition, respondent judge
should have personally conducted the hearing on the
probate of the will so that he could have ascertained whether
the will was validly executed. Under the circumstances, we
find his negligence and dereliction of duty to be inexcusable.
2. Specific Requirements
Art. 805. Every will, other than a holographic will, must
be subscribed at the end thereof by the testator himself
or by the testator's name written by some other person
in his presence, and by his express direction, and
attested and subscribed by three or more credible
witnesses in the presence of the testator and of one
another.
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall
also sign, as aforesaid, each and every page thereof,
except the last, on the left margin, and all the pages
shall be numbered correlatively in letters placed on the
upper part of each page.
The attestation shall state the number of pages used
upon which the will is written, and the fact that the
testator signed the will and every page thereof, or
caused some other person to write his name, under his
express direction, in the presence of the instrumental
witnesses, and that the latter witnessed and signed the
will and all the pages thereof in the presence of the
testator and of one another.
If the attestation clause is in a language not known to
the witnesses, it shall be interpreted to them. (n)
T: The object of the solemnities surrounding the execution of
wills is to close the door against bad faith and fraud, to avoid
sunstitution of wills and testaments and to gauranty their
truth and authenticity. Therefore the laws on this subject
should be interpreted in such a way as to attain these
primordial ends. Both one must not lose sight of the fact that
it is not the object of the law to restrain and curtail the
exercise of the right to make a will.
Signed by Testator
Signing is making a sign, token, or emblem; and what that
shall be depends upon the individual. The material thing is
that the testator made the mark to authenticate the writing as
his will and whatever he puts on it for that purpose will
suffice.
Attested and subscribed by witnesses
Attestation is the act of the senses, subscription is the act of
the hand; one is mental, the other is mechanical. To attest a
will is to know that it is published a such, and to certify the
facts required to constitute an actual legal publication; but to
subscribe a paper as a will is only to write on the paper the
names of the witnesses, for the sole purpose of
identification. To attest as witness to a will is therefore to
observe, perceive, discern, and take notice of what is done
in executing a will. The witness subscribe with his hand, and
attest with his eyes and ears.
Purpose of attesting and subscribing:
1. identification of the instrument;
2. protection of testator fraud and deception and
other vices of consent;
3. to ascertain the TC of the testator

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

safeguard the secrecy of the contents of the will during the

lifetime of the testator so he will not be the object of
importunities or pressure to change his will on the part of
designing persons or relatives, or it may be that the testator
wants to keep the secret of the will during his lifetime.
B: Special Requirements of attested wills are as follows
1. subscribed by the testator or his agent in his
presence and by his express direction at the end
thereof, in the presence of the witnesses
2. attested and subscribed by at least three
credible witnesses in the presence of the testator
and of one another;
3. the testator or his agent must sign every
page except the last, on the left margin in the
presence of the witnesses;
4. the witnesses must sign every page except
last, on the left margin in the presence of the
testator and of one another;
5. all pages numbered correlatively in letters
above page;
6. attestation clause stating:
a. number of pages;
b. testator or his agent under his direction
signed the will and every page thereof, in the
presence of the witnesses;
c. the witnesses witnessed and signed
evry page in the presence of testator and of
one another;
7. acknowledged before a notary public
Garcia vs. la Cuesta
This is an appeal from a decision of the Court of Appeals
disallowing the will of Antero Mercado dated January 3,
1943. The will is written in the Ilocano dialect and contains
the following attestation clause:
"We, the undersigned, by these presents do
declare that the foregoing testament of Antero
Mercado was signed by himself and also by us
below his name and of this attestation clause and
that of the left margin of the three pages thereof.
Page three the continuation of this attestation
clause; this will is written in Ilocano dialect which is
spoken and understood by the testator, and it
bears the corresponding number in letter which
compose of three pages and all of them were
signed in the presence of the testator and
witnesses, and the witnesses in the presence of
the testator and all and each and every one of us
witnesses.
"In testimony, whereof, we sign this testament, this
the third day of January, one thousand nine
hundred forty three, (1943) A.D.
(Sgd.)
(Sgd.)

"NUMERIANO EVANGELISTA
ROSENDO CORTES
BIBIANA ILLEGIBLE"

(Sgd.)

The will appears to have been signed by Atty. Florentino

Javier who wrote the name of Antero Mercado, followed
below by "A ruego del testador" and the name of Florentino
Javier. Antero Mercado is alleged to have written a cross
immediately after his name. The Court of Appeals, reversing
the judgment of the Court of First Instance of Ilocos Norte,
ruled that the attestation clause failed (1) to certify that the
will was signed on all the left margins of the three pages and
at the end of the will by Atty. Florentino Javier at the express
request of the testator in the presence of the testator and
each and every one of the witnesses; (2) to certify that after
the signing of the name of the testator by Atty. Javier at the
former's request said testator has written a cross at the end
of his name and on the left margin of the three pages of
which the will consists and at the end thereof; (3) to certify
that the three witnesses signed the will in all the pages
thereon in the presence of the testator and of each other.
In our opinion, the attestation clause is fatally defective for
failing to state that Antero Mercado caused Atty. Florentino
Javier to write the testator's name under his express
direction, as required by section 618 of the Code of Civil
Procedure. The herein petitioner (who is appealing by way of
certiorari from the decision of the Court of Appeals) argues,
however, that there is no need for such recital because the
cross written by the testator after his name is a sufficient
signature and the signature of Atty. Florentino Javier is a
surplusage. Petitioner's theory is that the cross is as much a
signature as a thumbmark, the latter having been held
sufficient by this Court in the cases of De Gala vs. Gonzales
and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479;
Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil.,
296 and Lopez vs. Liboro, 81 Phil., 429.
It is not here pretended that the cross appearing on the will
is the usual signature of Antero Mercado or even one of the
ways by which he signed his name. After mature reflection,
we are not prepared to liken the mere sign of a cross to a
thumbmark, and the reason is obvious. The cross cannot
and does not have the trustworthiness of a thumbmark.

What has been said makes it unnecessary for us to

determine whether there is a sufficient recital in the
attestation clause as to the signing of the will by the testator
in the presence of the witnesses, and by the latter in the
presence of the testator and of each other. Wherefore, the
appealed decision is hereby affirmed, with costs against the
petitioner. So ordered.
Balona vs. Abellana
Appeal from a decision of the Court of First Instance of
Zamboanga City admitting to probate the will of one
Anacleta Abellana.
"It appears on record that the last Will and
Testament (Exhibit 'A'), which is sought to be
probated, is written in the Spanish language and
consists of two (2) typewritten pages (pages 4 and
5 of the record) double space. The first page is
signed by Juan Bello and under his name appears
typewritten 'Por la testadora Anacleta Abellana,
residence Certificate A-1167629, Enero 20, 1951,
Ciudad de Zamboanga', and on the second page
appears the signature of the three (3) instrumental
witnesses Blas Sebastian, Faustino Macaso and
Rafael Ignacio, at the bottom of which appears the
signature of T. de los Santos and below his
signature is his official designation as the notary
public who notarized the said testament. On the
first page on the left margin of the said instrument
also appear the signatures of the instrumental
witnesses. On the second page, which is the last
page of the said last Will and Testament, also
appears the signature of the three (3) instrumental
witnesses and on that second page on the left
margin appears the signature of Juan Bello under
whose name appears handwritten the following
phrase, 'Por la Testadora Anacleta Abellana'. The
will is duly acknowledged before Notary Public,
Attorney Timoteo de los Santos." (Italics supplied.)
The present law, Article 805 of the Civil Code, in part
provides as follows:
"Every will, other than a holographic will, must be
subscribed at the end thereof by the testator
himself or by the testator's name written by some
other person in his presence, and by his express
direction, and attested and subscribed by three or
more credible witnesses in the presence of the
testator and of one another." (Italics supplied.)
Note that the old law as well as the new require that the
testator himself sign the will, or if he cannot do so, the
testator's name must be written by some other person in his
presence and by his express direction. Applying this
provision this Court said in the case of Ex Parte Pedro
Arcenas, et al., 4 Phil., 700:
"It will be noticed from the above-quoted section
618 of the Code of Civil Procedure that where the
testator does not know how, or is unable, to sign,
it will not be sufficient that one of the attesting
witnesses signs the will at the testator's request,
the notary certifying thereto as provided in article
695 of the Civil Code, which, in this respect, was
modified by section 618 above referred to, but it is
necessary that the testator's name be written by
the person signing in his stead in the place where
he would have signed if he knew how or was able
so to do, and this in the testator's presence and by
his express direction; so that a will signed in a
manner different than that prescribed by law shall
not be valid and will not be allowed to be
probated.
The same ruling was laid down in the case of Cuison vs.
Concepcion, 5 Phil., 552. In the case of Barut vs.
Cabacungan, 21 Phil., 461, we held that the important thing
is that it clearly appears that the name of the testatrix was
signed at her express direction; it is unimportant whether the
person who writes the name of the testatrix signs his own or
not. Cases of the same import are as follows: (Ex Parte Juan
Ondevilla, 13 Phil., 479, Caluya vs. Domingo, 27 Phil., 330;
Garcia vs. Lacuesta, 90 Phil., 489).
In the case at bar the name of the testatrix, Anacleta
Abellana, does not appear written under the will by said
Abellana herself, or by Dr. Juan Abello. There is, therefore, a
failure to comply with the express requirement in the law that
the testator must himself sign the will, or that his name be
affixed thereto by Some other person in his presence and by
his express direction. It appearing that the above provision
of the law has not been complied with, we are constrained to
declare that the said will of the deceased Anacleta Abellana
may not be admitted to probate.
Nera vs. Rimando
The only question raised by the evidence in this case as to
the due execution of the instrument propounded as a will in
the court below, is whether one of the subscribing witnesses
was present in the small room where it was executed at the

21

time when the testator and the other subscribing witnesses

attached their signatures; or whether at that time he was
outside, some eight or ten feet away, in a large room
connecting with the smaller room by a doorway, across
which was hung a curtain which made it impossible for one
in the outside room to see the testator and the other
subscribing witnesses in the act of attaching their signatures
to the instrument.
A majority of the members of the court is of opinion that this
subscribing witness was in the small room with the testator
and the other subscribing witnesses at the time when they
attached their signatures to the instrument, and this finding,
of course, disposes of the appeal and necessitates the
affirmance of the decree admitting the document to probate
as the last will and testament of the deceased.
The trial judge does not appear to have considered the
determination of this question of fact of vital importance in
the determination of this case, as he was of opinion that
under the doctrine laid down in the case of Jaboneta vs.
Gustilo (5 Phil. Rep., 541) the alleged fact that one of the
subscribing witnesses was in the outer room when the
testator and the other describing witnesses signed the
instrument in the inner room, had it been proven, would not
be sufficient in itself to invalidate the execution of the will.
But we are unanimously of opinion that had this subscribing
witness been proven to have been in the outer room at the
time when the testator and the other subscribing witnesses
attached their signatures to the instrument in the inner room,
it would have been invalid as a will, the attaching of those
signatures under circumstances not being done "in the
presence" of the witness in the outer room. This because the
line of vision from this witness to the testator and the other
subscribing witnesses would necessarily have been
impeded by the curtain separating the inner from the outer
one "at the moment of inscription of each signature."
In the case just cited, on which the trial court relied, we held
that:
"The true test of presence of the testator and the
witnesses in the execution of a will is not whether
they actually saw each other sign, but whether
they might have been seen each other sign, had
they chosen to do so, considering their mental and
physical condition and position with relation to
each other at the moment of inscription of each
signature."
But it is especially to be noted that the position of the parties
with relation to each other at the moment of the subscription
of each signature, must be such that they may see each
other sign if they choose to do so. This, of course, does not
mean that the testator and the subscribing witnesses may be
held to have executed the instrument in the presence of
each other if it appears that they would not have been able
to see each other sign at that moment, without changing
their relative positions or existing conditions. The evidence in
the case relied upon by the trial judge discloses that "at the
moment when the witness Javellana signed the document
he was actually and physically present and in such position
with relation to Jaboneta that he could see everything that
took place by merely casting his eyes in the proper direction
and without any physical obstruction to prevent his doing
so." And the decision merely laid down the doctrine that the
question whether the testator and the subscribing witnesses
to an alleged will sign the instrument in the presence of each
other does not depend upon proof of the fact that their eyes
were actually cast upon the paper at the moment of its
subscription by each of them, but that at that moment
existing conditions and their position with relation to each
other were such that by merely casting the eyes in the
proper direction they could have seen each other sign. To
extend the doctrine further would open the door to the
possibility of all manner of fraud, substitution, and the like,
and would defeat the purpose for which this particular
condition is prescribed in the code as one of the requisites in
the execution of a will.
The decree entered by the court below admitting the
instrument propounded therein to probate as the last will and
testament of Pedro Rimando, deceased, is affirmed with
costs of this instance against the appellant.
Garcia vs. la Cuesta
This is an appeal from a decision of the Court of Appeals
disallowing the will of Antero Mercado dated January 3,
1943. The will is written in the Ilocano dialect and contains
the following attestation clause:
"We, the undersigned, by these presents do
declare that the foregoing testament of Antero
Mercado was signed by himself and also by us
below his name and of this attestation clause and
that of the left margin of the three pages thereof.
Page three the continuation of this attestation
clause; this will is written in Ilocano dialect which is

spoken and understood by the testator, and it

bears the corresponding number in letter which
compose of three pages and all of them were
signed in the presence of the testator and
witnesses, and the witnesses in the presence of
the testator and all and each and every one of us
witnesses.
"In testimony, whereof, we sign this testament, this
the third day of January, one thousand nine
hundred forty three, (1943) A.D.
(Sgd.)
(Sgd.)

"NUMERIANO EVANGELISTA
ROSENDO CORTES
BIBIANA ILLEGIBLE"

(Sgd.)

The will appears to have been signed by Atty. Florentino

Javier who wrote the name of Antero Mercado, followed
below by "A ruego del testador" and the name of Florentino
Javier. Antero Mercado is alleged to have written a cross
immediately after his name. The Court of Appeals, reversing
the judgment of the Court of First Instance of Ilocos Norte,
ruled that the attestation clause failed (1) to certify that the
will was signed on all the left margins of the three pages and
at the end of the will by Atty. Florentino Javier at the express
request of the testator in the presence of the testator and
each and every one of the witnesses; (2) to certify that after
the signing of the name of the testator by Atty. Javier at the
former's request said testator has written a cross at the end
of his name and on the left margin of the three pages of
which the will consists and at the end thereof; (3) to certify
that the three witnesses signed the will in all the pages
thereon in the presence of the testator and of each other.
In our opinion, the attestation clause is fatally defective for
failing to state that Antero Mercado caused Atty. Florentino
Javier to write the testator's name under his express
direction, as required by section 618 of the Code of Civil
Procedure. The herein petitioner (who is appealing by way of
certiorari from the decision of the Court of Appeals) argues,
however, that there is no need for such recital because the
cross written by the testator after his name is a sufficient
signature and the signature of Atty. Florentino Javier is a
surplusage. Petitioner's theory is that the cross is as much a
signature as a thumbmark, the latter having been held
sufficient by this Court in the cases of De Gala vs. Gonzales
and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479;
Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil.,
296 and Lopez vs. Liboro, 81 Phil., 429.
It is not here pretended that the cross appearing on the will
is the usual signature of Antero Mercado or even one of the
ways by which he signed his name. After mature reflection,
we are not prepared to liken the mere sign of a cross to a
thumbmark, and the reason is obvious. The cross cannot
and does not have the trustworthiness of a thumbmark.
What has been said makes it unnecessary for us to
determine whether there is a sufficient recital in the
attestation clause as to the signing of the will by the testator
in the presence of the witnesses, and by the latter in the
presence of the testator and of each other. Wherefore, the
appealed decision is hereby affirmed, with costs against the
petitioner. So ordered.
Taboado vs. Rosal
In the petition for probate filed with the respondent court, the
petitioner attached the alleged last will and testament of the
late Dorotea Perez. Written in Cebuano-Visayan dialect, the
will consists of two pages. The first page contains the entire
testamentary dispositions and is signed at the end or bottom
of the page by the testatrix alone and at the left hand margin
by the three (3) instrumental witnesses. The second page
which contains the attestation clause and the
acknowledgment is signed at the end of the attestation
clause by the three 13) attesting witnesses and at the left
hand margin by the testatrix.
Since no opposition was filed after the petitioner's
compliance with the requirement of publications, the trial
court commissioned the branch clerk of court to receive the
petitioner's evidence. Accordingly, the petitioner submitted
his evidence and presented Vicente Timkang, one of the
subscribing witnesses to the will, who testified on its
genuineness and due execution.
The trial court, thru then Presiding Judge Ramon C.
Pamatian issued the questioned order denying the probate
of the will of Dorotea Perez for want of a formality in its
execution. In the same order, the petitioner was also
required to submit the names of the intestate heirs with their
corresponding addresses so that they could be properly
notified and could intervene in the summary settlement of
the estate.
The respondent Judge interprets the above-quoted provision
of law to require that, for a notarial will to be valid, it is not

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."

" . . . Impossibility of substitution of this page is assured not

only (sic) the fact that the testatrix and two other witnesses,
did sign the defective page, but also by its bearing the
coincident imprint of the seal of the notary public before
whom the testament was ratified by testatrix and all three
witnesses. The law should not be so strictly and literally
interpreted as to penalize the testatrix on account of the
inadvertence of a single witness over whose conduct she had
no control, where the purpose of the law to guarantee the
identity of the testament and its component pages is
sufficiently attained, no intentional or deliberate deviation
existed, and the evidence on record attest 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.'"
WHEREFORE, the present petition is hereby granted. The
orders of the respondent Court which denied the probate of
the will, the motion for reconsideration of the denial of
probate, and the motion for appointment of a special
administrator are set aside.
Icasiano vs. Icasiano
This special proceeding was begun on October 2, 1958 by a
petition for the allowance and admission to probate of the
original, Exhibit "A" as the alleged will of Josefa Villacorte,
deceased, and for the appointment of petitioner Celso
Icasiano as executor thereof.
The evidence presented for the petitioner is to the effect that
Josefa Villacorte died in the City of Manila on September 12,
1958; that on June 2, 1956, the late Josefa Villacorte
executed a last will and testament in duplicate at the house
of her daughter Mrs. Felisa Icasiano at Pedro Guevara
Street, Manila, published before and attested by three
instrumental witnesses, namely: attorneys Justo P. Torres,
Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that the will
was acknowledged by the testatrix and by the said three
instrumental witnesses on the same date before attorney
Jose Oyengco Ong, Notary Public in and for the City of
Manila; and that the will was actually prepared by attorney
Fermin Samson, who was also present during the execution
and signing of the decedent's last will and testament,
together with former Governor Emilio Rustia of Bulacan,
Judge Ramon Icasiano and a little girl. Of the said three
instrumental witnesses to the execution of the decedent's
last will and testament, attorneys Torres and Natividad were
in the Philippines at the time of the hearing, and both
testified as to the due execution and authenticity of the said
will. So did the Notary Public before whom the will was
acknowledged by the testatrix and attesting witnesses, and
also attorneys Fermin Samson, who actually prepared the
document. The latter also testified upon cross examination
that he prepared one original and two copies of Josefa
Villacorte last will and testament at his house in Baliuag,
Bulacan, but he brought only one original and one signed
copy to Manila, retaining one unsigned copy in Bulacan.
The records show that the original of the will, which was
surrendered simultaneously with the filing of the petition and
marked as Exhibit "A" consists of five pages, and while
signed at the end and in every page, it does not contain the
signature of one of the attesting witnesses, Atty. Jose V.
Natividad, on page three (3) thereof; but the duplicate copy
attached to the amended and supplemental petition and
marked as Exhibit "A-1" is signed by the testatrix and her
three attesting witnesses in each and every page.
Witness Natividad who testified on his failure to sign page
three (3) of the original, admits that he may have lifted two
pages instead of one when he signed the same, but affirmed
that page three (3) was signed in his presence.
We have examined the record and are satisfied, as the trial
court was, that the testatrix signed both original and
duplicate copies (Exhibits "A" and "A-1", respectively) of the
will spontaneously, on the same in the presence of the three
attesting witnesses, the notary public who acknowledged the
will; and Atty. Samson, who actually prepared the
documents; that the will and its duplicate were executed in
Tagalog, a language known to and spoken by both the
testator and the witnesses, and read to and by the testatrix
and Atty. Fermin Samson, together before they were actually
signed; that the attestation clause is also in a language
known to and spoken by the testatrix and the witnesses. The
opinion of expert for oppositors, Mr. Felipe Logan, that the
signatures of the testatrix appearing in the duplicate original
were not written by the same had which wrote the signatures
in the original will leaves us unconvinced, not merely
because it is directly contradicted by expert Martin Ramos
for the proponents, but principally because of the paucity of
the standards used by him to support the conclusion that the
differences between the standard and questioned signatures
are beyond the writer's range of normal scriptural variation.
The expert has, in fact, used as standards only three other
signatures of the testatrix besides those affixed to the
original of the testament (Exh. A); and we feel that with so
few standards the expert's opinion and the signatures in the
duplicate could not be those of the testatrix becomes
extremely hazardous. This is particularly so since the
comparison charts Nos. 3 and 4 fail to show convincingly

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

and testament was not executed in accordance with law.

Notwithstanding her objection, the Court allowed the probate
of the said last will and testament. Hence this appeal by
certiorari which was given due course.
The only question presented for determination, on which the
decision of the case hinges, is whether the supposed last
will and testament of Valente Z. Cruz (Exhibit "E") was
executed in accordance with law, particularly Articles 805
and 806 of the new Civil Code, the first requiring at least
three credible witnesses to attest and subscribe to the will,
and the second requiring the testator and the witnesses to
acknowledge the will before a notary public.
Of the three instrumental witnesses thereto, namely,
Deogracias T. Jamaoas, Jr., Dr. Francisco Paares, and
Atty. Angel H. Teves, Jr., one of them, the last named, is at
the same time the Notary Public before whom the will was
supposed to have been acknowledged.
After weighing the merits of the conflicting claims of the
parties, We are inclined to sustain that of the appellant that
the last will and testament in question was not executed in
accordance with law. The notary public before whom the will
was acknowledged cannot be considered as the third
instrumental witness since he cannot acknowledge before
himself his having signed the will. To acknowledge before
means to avow (Javellana v. Ledesma, 97 Phil. 258, 262;
Castro v Castro, 100 Phil. 239, 247); to own as genuine, to
assent, to admit; and "before" means in front or preceding in
space or ahead of. (The New Webster Encyclopedic
Dictionary of the English Language, p. 72; Funk & Wagnalls
New Standard Dictionary of the English Language, p. 252;
Webster's New International Dictionary 2d. p. 245.)
Consequently, if the third witness were the notary public
himself, he would have to avow, assent, or admit his having
signed the will in front of himself. This cannot be done
because he cannot split his personality into two so that one
will appear before the other to acknowledge his participation
in the making of the will. To permit such a situation to obtain
would be sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among
others, to guard against any illegal or immoral
arrangements. Balinon v. De Leon, 50 O. G. 583.) That
function would be defeated if the notary public were one of
the attesting or instrumental witnesses. For them he would
be interested in sustaining the validity of the will as it directly
involves himself and the validity of his own act. It would
place him in an inconsistent position and the very purpose of
the acknowledgment, which is to minimize fraud (Report of
the Code Commission p. 106-107), would be thwarted.
These authorities do not serve the purpose of the law in this
jurisdiction or are not decisive of the issue herein, because
the notaries public and witnesses referred to in the
aforecited cases merely acted as instrumental, subscribing
or attesting witnesses, and not as acknowledging witnesses.
Here the notary public acted not only as attesting witness
but also as acknowledging witness, a situation not
envisaged by Article 805 of the Civil Code.
To allow the notary public to act as third witness, or one of
the attesting and acknowledging witnesses, would have the
effect of having only two attesting witnesses to the will which
would be in contravention of the provisions of Article 805
requiring at least three credible witnesses to act as such and
of Article 806 which requires that the testator and the
required number of witnesses must appear before the notary
public to acknowledge the will. The result would be, as has
been said, that only two witnesses appeared before the
notary public for that purpose. In the circumstances, the law
would not be duly observed.
Gabucan vs. Manta
This case is about the dismissal of a petition for the probate
of a notarial will on the ground that it does not bear a thirtycentavo documentary stamp.
The Court of First Instance of Camiguin in its "decision" of
December 28, 1977 in Special Proceeding No. 41 for the
probate of the will of the late Rogaciano Gabucan, dismissed
the proceeding (erroneously characterizes as an "action").
The proceeding was dismissed because the requisite
documentary stamp was not affixed to the notarial
acknowledgment in the will and, hence, according to
respondent The probate court assumed that the notarial
acknowledgment of the said will is subject to the thirtycentavo documentary stamp tax fixed in section 225 of the
Tax Code, now section 237 of the 1977 Tax Code. Judge, it
was not admissible in evidence, citing section 238 of the Tax
Code.
We hold that the lower court manifestly erred in declaring
that, because no documentary stamp was affixed to the will,
there was "no will and testament to probate" and,
consequently, the alleged "action must of necessity be
dismissed."
What the probate court should have done was to require the
petitioner or proponent to affix the requisite thirty-centavo
documentary stamp to the notarial acknowledgment of the
will which is the taxable portion of that document.
That procedure may be implied from the provision of section
238 that the non-admissibility of the document, which does
not bear the requisite documentary stamp, subsists only
"until the requisite stamp or stamps shall have been affixed
thereto and cancelled."

24

Thus, it was held that the documentary stamp may be

affixed at the time the taxable document is presented in
evidence (Del Castillo vs. Madrilea, 49 Phil. 749) If the
promissory note does not bear a documentary stamp, the
court should have allowed plaintiff's tender of a stamp to
supply the deficiency. (Rodriguez vs. Martinez, 5 Phil. 67,
71. Note the holding in Azarraga vs. Rodriguez, 9 Phil. 637,
that the lack of the documentary stamp on a document does
not invalidate such document. See Cia. General de Tabacos
vs. Jeanjaquet, 12 Phil. 195, 201-2 and Delgado and
Figueroa vs. Amenabar, 16 Phil. 403, 405-6.)
Javellana vs. Ledesma
By order of July 23, 1953, the Court of First Instance of Iloilo
admitted to probate the documents in the Visayan dialect,
marked Exhibits D and E, as the testament and codicil duly
executed by the deceased Da. Apolinaria Ledesma Vda. de
Javellana, on March 30, 1950, and May 29, 1952,
respectively, with Ramon Tabiana, Gloria Montinola de
Tabiana and Vicente Yap as witnesses. The contestant, Da.
Matea Ledesma, sister and nearest surviving relative of said
deceased, appealed from the decision, insisting that the said
exhibits were not executed in conformity with law. The
appeal was made directly to this Court because the value of
the properties involved exceeded two hundred thousand
pesos.
Originally the opposition to the probate also charged that the
testatrix lacked testamentary capacity and that the
dispositions were procured through undue influence. These
grounds were abandoned at the hearing in the court below,
where the issue was concentrated into three specific
questions: (1) whether the testament of 1950 was executed
by the testatrix in the presence of the instrumental
witnesses; (2) whether the acknowledgment clause was
signed and the notarial seal affixed by the notary without the
presence of the testatrix and the witnesses; and (3) if so,
whether the codicil was thereby rendered invalid and
ineffective. These questions are the same ones presented to
us for resolution.
The contestant argues that the Court below erred in refusing
credence to her witnesses Maria Paderogao and Vidal
Allado, cook and driver, respectively, of the deceased
Apolinaria Ledesma. Both testified that on March 30, 1950,
they saw and heard Vicente Yap (one of the witnesses to the
will) inform the deceased that he had brought the
"testamento" and urge her to go to attorney Tabiana's office
to sign it; that Da. Apolinaria manifested that she could not
go, because she was not feeling well; and that upon Yap's
insistence that the will had to be signed in the attorney's
office and not elsewhere, the deceased took the paper and
signed it in the presence of Yap alone, and returned it with
the statement that no one would question it because the
property involved was exclusively hers.
At any rate, as observed by the Court below, whether or not
the notary signed the certification of acknowledgment in the
presence of the testatrix and the witnesses, does not affect
the validity of the codicil. Unlike the Code of 1889 (Art. 699),
the new Civil Code does not require that the signing of the
testator, witnesses and notary should be accomplished in
one single act. A comparison of Articles 805 and 806 of the
new Civil Code reveals that while testator and witnesses
must sign in the presence of each other, all that is thereafter
required is that "every will must be acknowledged before a
notary public by the testator and the witnesses" (Art. 806);
i.e., that the latter should avow to the certifying officer the
authenticity of their signatures and the voluntariness of their
actions in executing the testamentary disposition. This was
done in the case before us. The subsequent signing and
sealing by the notary of his certification that the testament
was duly acknowledged by the participants therein is no part
of the acknowledgment itself nor of the testamentary act.
Hence their separate execution out of the presence of the
testatrix and her witnesses can not be said to violate the rule
that testaments should be completed without interruption
(Andalis vs. Pulgueras, 59 Phil. 643), or, as the Roman
maxim puts it, "uno eodem die ac tempore in eadem loco",
and no reversible error was committed by the Court in so
holding. It is noteworthy that Article 806 of the new Civil
Code does not contain words requiring that the testator and
the witnesses should acknowledge the testament on the
same day or occasion that it was executed.
The decision admitting the will to probate is affirmed, with
costs against appellant.
Witnesses to a will
d. who are competent?
Art. 820. Any person of sound mind and of the age of
eighteen years or more, and not bind, deaf or dumb, and
able to read and write, may be a witness to the
execution of a will mentioned in Article 805 of this Code.
(n)
T: these are witnesses under an ordinary will.
B: Six qualifications of a witness: 1. sound mind; 2. 18 years
of age; 3. not blind, deaf or dumb,; 4. literateor able to read

and write; domicile in the Philippines;6. not convicted of a

crime involving, falsification, perjury, or false testimony.
Art. 821. The following are disqualified from being
witnesses to a will:
(1) Any person not domiciled in the
Philippines;
(2) Those who have been convicted of
falsification of a document, perjury or false
testimony. (n)
T: The law requires that the witness be domiciled in the
Philippines mere residence is not sufficient. Domicile under
Art. 50, Art. 50. For the exercise of civil rights and the
fulfillment of civil obligations, the domicile of natural persons
is the place of their habitual residence. (40a)
Ratio of domicile requirement:
1.
availability of witness when will is
probated if the same is within the Philippines;
2.
witness domiciled in the Philippines
more likely to know the testator and be ablr to
testify on his mental condition at the time of
execution of the will.
Except of course if the will was executed in a foreign country
the domicile requirement does not apply.
There is citizenship requirement only domicile requirement.
Even aliens may witness as long as they are domiciled here.
As to conviction of perjury, falsification, and false testimony,
it is presumed that such witness cannot be relied upon fot
truthfulness. Conviction for any other crime, however, is not
a disqualification
The notary public before whom the will was acknowledged
cannot act as witness because he cannot acknowledge
before himself his having signed the will; this cannot be done
because it would place him in an inconsistent position and
the very purpose of the acknowledgement, which is to
minimize fraud would be thwarted.
Art. 824. A mere charge on the estate of the testator for
the payment of debts due at the time of the testator's
death does not prevent his creditors from being
competent witnesses to his will. (n)
B: Because This is not a testamentary disposition
Gonzales vs. CA
This is a petition for review of the decision of the Court of
Appeals, First Division, 1 promulgated on May 4, 1973 in
CA-G. R. No. 36523-R which reversed the decision of the
Court of First Instance of Rizal dated December 15, 1964
and allowed the probate of the last will and testament of the
deceased Isabel Gabriel.
It appears that on June 24, 1961, herein private respondent
Lutgarda Santiago filed a petition with the Court of First
Instance of Rizal docketed as Special Proceedings No.
3617, for the probate of a will alleged to have been executed
by the deceased Isabel Gabriel and designating therein
petitioner as the principal beneficiary and executrix.
There is no dispute in the records that the late Isabel Andres
Gabriel died as a widow and without issue in the municipality
of Navotas, province of Rizal her place of residence, on
June 7, 1961 at the age of eighty-five (85), having been born
in 1876. It is likewise not controverted that herein private
respondent Lutgarda Santiago and petitioner Rizalina
Gabriel Gonzales are nieces of the deceased, and that
private respondent, with her husband and children, lived with
the deceased at the latter's residence prior and up to the
time of her death.
The petition was opposed by Rizalina Gabriel Gonzales,
herein petitioner, assailing the document purporting to be the
will of the deceased on the following grounds:
From this judgment of disallowance, Lutgarda Santiago
appealed to respondent Court, hence, the only issue
decided on appeal was whether or not the will in question
was executed and attested as required by law. The Court of
Appeals, upon consideration of the evidence adduced by
both parties, rendered the decision now under review, holing
that the will in question was signed and executed by the
deceased Isabel Gabriel on April 15, 1961 in the presence of
the three attesting witnesses, Matilde Orobia, Celso
Gimpaya and Maria Gimpaya, signing and witnessing the
document in the presence of the deceased and of each
other as required by law, 2 hence allowed probate.
Petitioner, in her first assignment, contends that the
respondent Court of Appeals erred in holding that the
document, Exhibit "F", was executed and attested as
required by law when there was absolutely no proof that the
three instrumental witnesses were credible witnesses. She
argues that the requirement in Article 806, Civil Code, that
the witnesses must be credible is an absolute requirement
which must be complied with before an alleged last will and
testament may be admitted to probate and that to be a
credible witness, there must be evidence on record that the
witness has a good standing in his community, or that he is
honest and upright, or reputed to be trustworthy and reliable.
According to petitioner, unless the qualifications of the
witness are first established, his testimony may not be
favorably considered. Petitioner contends that the term
"credible" is not synonymous with "competent" for a witness
may be competent under Article 820 and 821 of the Civil
Code and still not be credible as required by Article 805 of
the same Code. It is further urged that the term "credible" as
used in the Civil Code should receive the same settled and

25

well-known meaning it has under the Naturalization Law, the

latter being a kindred legislation with the Civil Code
provisions on wills with respect to the qualifications of
witnesses.
We find no merit to petitioner's first assignment of error.
Article 820 of the Civil Code provides the qualifications of a
witness to the execution of wills while Article 821 sets forth
the disqualification from being a witness to a will. These
Articles state:
"Art. 820. Any person of sound mind and of the
age of eighteen years or more, and not blind, deaf
or dumb, and able to read and write, may be a
witness to the execution of a will mentioned in
article 805 of this Code.
"Art. 821. The following are disqualified from being
witnesses to a will:
(1)
Any person not domiciled in the
Philippines,
(2)
Those who have been convicted of
falsification of a document, perjury or false
testimony.
Under the law, there is no mandatory requirement that the
witness testify initially or at any time during the trial as to his
good standing in the community, his reputation for
trustworthiness and reliableness, his honesty and
uprightness in order that his testimony may be believed and
accepted by the trial court. It is enough that the qualifications
enumerated in Article 820 of the Civil Code are complied
with, such that the soundness of his mind can be shown by
or deduced from his answers to the questions propounded to
him, that his age (18 years or more) is shown from his
appearance, testimony, or competently proved otherwise, as
well as the fact that he is not blind, deaf or dumb and that he
is able to read and write to the satisfaction of the Court, and
that he has none of the disqualifications under Article 821 of
the Civil Code. We reject petitioner's contention that it must
first be established in the record the good standing of the
witness in the community, his reputation for trustworthiness
and reliableness, his honesty and uprightness, because
such attributes are presumed of the witness unless the
contrary is proved otherwise by the opposing party.
In probate proceedings, the instrumental witnesses are not
character witnesses for they merely attest the execution of a
will or testament and affirm the formalities attendant to said
execution. And We agree with the respondent that the
rulings laid down in the cases cited by petitioner concerning
character witnesses in naturalization proceedings are not
applicable to instrumental witnesses to wills executed under
the Civil Code of the Philippines.
In the case at bar, the finding that each and everyone of the
three instrumental witnesses, namely, Matilde Orobia, Celso
Gimpaya and Maria Gimpaya, are competent and credible is
satisfactorily supported by the evidence as found by the
respondent Court of Appeals, which findings of fact this
Tribunal is bound to accept and rely upon. Moreover,
petitioner has not pointed to any disqualification of any of the
said witnesses, much less has it been shown that anyone of
them is below 18 years of age, of unsound mind, deaf or
dumb, or cannot read or write.
In the strict sense, the competency of a person to be an
instrumental witness to a will is determined by the statute,
that is Art. 820 and 821, Civil Code, whereas his credibility
depends on the appreciation of his testimony and arises
from the belief and conclusion of the Court that said witness
is telling the truth. Thus, in the case of Vda. de Aroyo v. El
Beaterio del Santissimo Rosario de Molo, No. L-22005, May
3, 1968, the Supreme Court held and ruled that:
"Competency as a witness is one thing, and it is another to
be a credible witness, so credible that the Court must accept
what he says. Trial courts may allow a person to testify as a
witness upon a given matter because he is competent, but
may thereafter decide whether to believe or not to believe
his testimony."
In fine, We state the rule that the instrumental witnesses in
order to be competent must be shown to have the
qualifications under Article 820 of the Civil Code and none of
the disqualifications under Article 821 and for their testimony
to be credible, that is worthy of belief and entitled to
credence, it is not mandatory that evidence be first
established on record that the witnesses have a good
standing in the community or that they are honest and
upright or reputed to be trustworthy and reliable, for a person
is presumed to be such unless the contrary is established
otherwise. In other words, the instrumental witnesses must
be competent and their testimonies must be credible before
the court allows the probate of the will they have attested.
We, therefore, reject petitioner's position that it was fatal for
respondent not to have introduced prior and independent
proof of the fact that the witnesses were "credible
witnesses", that is, that they have a good standing in the
community and reputed to be trustworthy and reliable.
Petitioner's exacerbation centers on the supposed
incredibility of the testimonies of the witnesses for the
proponent of the will, their alleged evasions, inconsistencies
and contradictions. But in the case at bar, the three
instrumental witnesses who constitute the best evidence of
the will-making have testified in favor of the probate of the
will. So has the lawyer who prepared it, one learned in the

law and long in the practice thereof, who thereafter notarized

it. All of them are disinterested witnesses who stand to
receive no benefit from the testament. The signatures of the
witnesses and the testatrix have been identified on the will
and there is no claim whatsoever and by anyone, much less
the petitioner, that they were not genuine. In the last and
final analysis, the herein conflict is factual and we go back to
the rule that the Supreme Court cannot review and revise
the findings of facts of the respondent Court of Appeals.
e.
supervening incompetency
Art. 822. If the witnesses attesting the execution of a will
are competent at the time of attesting, their becoming
subsequently incompetent shall not prevent the
allowance of the will. (n)
B: As in the case of TC the time of execution of the will is the
only relevant temporal criterion in the determination of the
competence of the witnesses.
J: competency determined at the time of execution of will
and not at the time of presentation for probate.
f.
Competency of interested
witnesses
Art. 823. If a person attests the execution of a will, to
whom or to whose spouse, or parent, or child, a devise
or legacy is given by such will, such devise or legacy
shall, so far only as concerns such person, or spouse,
or parent, or child of such person, or any one claiming
under such person or spouse, or parent, or child, be
void, unless there are three other competent witnesses
to such will. However, such person so attesting shall be
admitted as a witness as if such devise or legacy had
not been made or given. (n)
T: This article does not refer to disqualification to be a
witness, but a disqualification to inherit. The devisee or
legatee is not disqualified nor his spouse, parent or child to
be witness as long as he is competent and credible under
Art. 821 but the devise or legacy, however, shall be void.
But if the witness is not a devisee or legatee, but an heir, is
the institution of such heir void? Notwithstanding the
terminology of the article, we believe that even as instituted
heir, or spouse, parent child is disqualified. The
disqualification is intended to to aply to one succeeding by
will, and it is not material in what concept he succeeds. This
is proved by Art. 1027 par. 4 on relative incapacity which
makes no distinction between heirs, devisees or legatees.
B: this article pertains more on the capacity to succeed than
the capacity to be a witness. The witness will remain as such
but the legacy or devise shall be void.
The disqualification applies only to testamentary disposition .
if the witness is also entitled to legitime or intestate share
this shall not be affected.
3.
pecial requirements for deaf, deaf mute and blind
testators
Art. 807. If the testator be deaf, or a deaf-mute, he must
personally read the will, if able to do so; otherwise, he
shall designate two persons to read it and communicate
to him, in some practicable manner, the contents
thereof. (n)
Art. 808. If the testator is blind, the will shall be read to
him twice; once, by one of the subscribing witnesses,
and again, by the notary public before whom the will is
acknowledged. (n)
T: The reason for the requirement in this article is to make
the provisions of the will known to the testator, so that he
may be able to object if they are not in accordance with his
wishes. Failure to comply with this requirement mkes the will
invalid.
An illiterate testator can see the paper and the writing
thereon, but ne cannot understand what is written because
he cannot read it. From the point of view of understanding or
knowing the contents of the will, there is no difference
between the illiterate testator and the blind testator.
Therefore, the present article should likewise apply to an
illiterate testator.
B: the burden of proof of the compliance of this aticle is is
upon the proponent. No requirement that such compliance is
stated in the will or attestation clause
Garcia vs. Vasquez
Gliceria Avelino del Rosario died unmarried in the City of
Manila on 2 September 1965, leaving no descendents,
ascendants, brother or sister. At the time of her death, she
was said to be 90 years old more or less, and possessed of
an estate consisting mostly of real properties.
The petition was opposed separately by several groups of
alleged heirs the latter five groups of persons all claiming to
be relatives of Doa Gliceria within the fifth civil degree. The
oppositions invariably charged that the instrument executed
in 1960 was not intended by the deceased to be her true will;
that the signatures of the deceased appearing in the will was
procured through undue and improper pressure and
influence the part of the beneficiaries and/or other persons;
that the testatrix did not know the object of her bounty; that
the instrument itself reveals irregularities in its execution,
and that the formalities required by law for such execution
have not been complied with.
Oppositor Lucio V. Garcia, who also presented for probate
the 1956 will of the deceased, joined the group of Dr. Jaime

26

Rosario in registering opposition to the appointment of

petitioner Consuelo S. Gonzales Vda. de Precilla as special
administratrix, on the ground that the latter possesses
interest adverse to the estate. After the parties were duly
heard, the probate court, in its order of 2 October 1965,
granted petitioner's prayer and appointed her special
administratrix of the estate upon a bond for P30,000.00. The
order was premised on the fact the petitioner was managing
the properties belonging to the estate even during the
lifetime of the deceased, and to appoint another person as
administrator or co administrator at that stage of the
proceeding would only result in further confusion and
difficulties.
On 25 August 1966, the Court issued an order admitting to
probate the 1960 will of Gliceria A. del Rosario (Exhibit "D").
In declaring the due execution of the will, the probate court
took note that no evidence had been presented to establish
that the testatrix was not of sound mind when the will was
executed; that the fact that she had prepared an earlier will
did not, prevent her from executing another one thereafter;
that the fact that the 1956 will consisted of 12 pages
whereas the 1960 testament was contained in one page
does not render the latter invalid; that, the erasures and
alterations in the instrument were insignificant to warrant
rejection; that the inconsistencies in the testimonies of the
instrumental witnesses which were noted by the oppositors
are even indicative of their truthfulness. The probate court,
also considering that petitioner had already shown capacity
to administer the properties of the estate and that from the
provisions of the will she stands as the person most
concerned and interested therein, appointed said petitioner
regular administratrix with a bond for P50,000.00. From this
order all the oppositors appealed, the case being docketed
in this Court as G.R. No. L-27200.
Foremost of the questions to be determined here concerns
the correctness of the order allowing the probate of the 1960
will.
The records of the probate proceeding fully establish the fact
that the testatrix, Gliceria A. del Rosario, during her lifetime,
executed two wills: one on 9 June 1956 consisting of 12
pages and written in Spanish, a language that she knew and
spoke, witnessed by Messrs. Antonio Cabrera, Jesus Y.
Ayala and Valentin Marquez, and acknowledged before
notary public Jose Ayala; and another dated 29 December
1960, consisting of 1 page and written in Tagalog, witnessed
by Messrs. Vicente Rosales, Francisco Decena, and
Francisco Lopez and acknowledged before notary public
Remigio M. Tividad.
Called to testify on the due execution of the 1960 will,
instrumental witnesses Decena, Lopez and Rosales
uniformly declared that they were individually requested by
Alfonso Precilla (the late husband of petitioner special
administratrix) to witness the execution of the last will of
Doa Gliceria A. del Rosario; that they arrived at the house
of the old lady at No. 2074 Azcarraga, Manila, one after the
other, in the afternoon of 29 December 1960; that the
testatrix at the time was apparently of clear and sound mind,
although she was being aided by Precilla when she walked;
3 that the will, which was already prepared, was first read
"silently" by the testatrix herself before she signed it;
The oppositors-appellants in the present case, however,
challenging the correctness of the probate court's ruling,
maintain that on 29 December 1960 the eyesight of Gliceria
del Rosario was so poor and defective that she could not
have read the provisions of the will, contrary to the
testimonies of witnesses Decena, Lopez and Rosales.
On this point, we find the declarations in court of Dr. Jesus
V. Tamesis very material and illuminating. Said
ophthalmologist, whose expertise was admitted by both
parties, testified, among other things, that when Doa
Gliceria del Rosario saw him for consultation on 11 March
1960 he found her left eye to have cataract (opaque lens),
15 and that it was "above normal in pressure", denoting a
possible glaucoma, a disease that leads to blindness
16
As to the conditions of her right eye
The foregoing testimony of the ophthalmologist who treated
the deceased and, therefore, has first hand knowledge of the
actual condition of her eyesight from August, 1960 up to
1963, fully establish the fact that notwithstanding the
operation and removal of the cataract in her left eye and her
being fitted with aphakic lens (used by cataract patients), her
vision remained mainly for viewing distant objects and not
for reading print. Thus, the conclusion is inescapable that
with the condition of her eyesight in August, 1960, and there
is no evidence that it had improved by 29 December 1960,
Gliceria del Rosario was incapable f reading, and could not
have read the provisions of the will supposedly signed by
her on 29 December 1960. It is worth noting that the
instrumental witnesses stated that she read the instrument
"silently" (t.s.n., pages 164-165). which is a conclusion and
not a fact.
Against the background of defective eyesight of the alleged
testatrix, the appearance of the will, Exhibit "D", acquires
striking significance. Upon its face, the testamentary

provisions, the attestation clause and acknowledgment were

crammed together into a single sheet of paper, to much so
that the words had to be written very close on the top,
bottom and two sides of the paper, leaving no margin
whatsoever; the word "and" had to be written by the symbol
"&", apparently to save on space. Plainly, the testament was
not prepared with any regard for the defective vision of Doa
Gliceria. Further, typographical errors like "HULINH" for
"HULING" (last), "Alfonsa" ;or "Alfonso", "MERCRDRS" for
MERCEDES", "instrumental" for "Instrumental", and
"acknowledged" for "acknowledge'', remained uncorrected,
thereby indicating that execution thereof must have been
characterized by haste. It is difficult to understand that so
important a document containing the final disposition of
one's worldly possessions should be embodied in an
informal and untidily written instrument; or that the glaring
spelling errors should have escaped her notice if she had
actually retained the ability to read the purported will and
had done so. The record is thus convincing that the
supposed testatrix could not have physically read or
understood the alleged testament, Exhibit "D", and that its
admission to probate was erroneous and should be
reversed.
Thus, for all intents and purpose of the rules on probate, the
deceased Gliceria del Rosario was, as appellant oppositors
contend, not unlike a blind testator, and the due execution of
her will would have required observance of the provisions of
Article 808 of the Civil Code.
"ART. 808.
If the testator is
blind, the will shall be read to him twice;
once, by one of the subscribing
witnesses, and again, by the notary
public before whom the will is
acknowledged."
The rationale behind the requirement of reading the will to
the testator if he is blind or incapable of reading the will
himself (as when he is illiterate),
18 is to make the
provisions thereof known to him, so that he may be able to
object if they are not in accordance with his wishes. That the
aim of the law is to insure that the dispositions of the will are
properly communicated to and understood by the
handicapped testator, thus making them truly reflective of his
desire, is evidenced by the requirement that the will should
be read to the latter, not only once but twice, by two different
persons, and that the witnesses have to act within the range
of his (the testator's) other senses. 19
In connection with the will here in question, there is nothing
in the records to show that the above requisites have been
complied with. Clearly, as already stated, the 1960 will
sought to be probated suffers from infirmity that affects its
due execution.
On the matter of lis pendens (G.R. No. L-26864), the
provisions of the Rules of Court are clear: notice of the
pendency of an action may be recorded in the office of the
register of deeds of the province in which the property is
situated, if the action affects "the title or the right of
possession of (such) real property." 23 In the case at bar,
the pending action which oppositors seek to annotate in the
records of TCT Nos. 81735, 81736, and 81737 is the
mandamus proceeding filed in this Court (G.R. No. L26615). As previously discussed in this opinion, however,
that case is concerned merely with the correctness of the
denial by the probate court of the motion for the removal of
Consuelo Gonzales Vda. de Precilla as special
administratrix of the estate of the late Gliceria del Rosario. In
short, the issue in controversy there is simply the fitness or
unfitness of said special administratrix to continue holding
the trust; it does not involve or affect at all the title to, or
possession of, the properties covered by said TCT Nos.
81735, 81736 and 81737. Clearly, the pendency of such
case (L-26615) is not an action that can properly be
annotated in the record of the titles to the properties.
FOR THE FOREGOING REASONS, the order of the court
below allowing to probate the alleged 1960 will of Gliceria A.
del Rosario is hereby reversed and set aside.
4.
Substantial compliance
Art. 809. In the absence of bad faith, forgery, or fraud, or
undue and improper pressure and influence, defects
and imperfections in the form of attestation or in the
language used therein shall not render the will invalid if
it is proved that the will was in fact executed and
attested in substantial compliance with all the
requirements of Article 805.
T: The law on formal requirements of a will should be
liberally construed; while perfection in drafting is desirable,
unsubstantial departures should be ignored, as long as the
possibility of fraud and bad faith are obviated.
There are many people who are fluent and have a graet
mastery of grammar. Thus, grammatical errors which may
be noted from the general tenor of the attestation clause
must, therefore, be overlooked or corrected by construction,
so as not to frustrate the recognized intention of those who

27

intervened in the execution thereof. Where it appears from

the context of the attestation that certain words were
ommtied inadvertently, the court may supply the omission.
It is sufficient if from the language employed it can be
reasonably deduced that the attestation clause fulfills what
the law expects of it. Hence, an attestation clause will be
held sufficient, notwithstanding some imperfections in the
grammatical constructions, where it is evident that the defect
is due to carelessness of the clerk or to lac of mastery of the
language, if the meaning sought to be conveyed can be
determined from the clause itself.
Furthermore, the whole language of the attestation clause
must be taken together to determine whether the testaor
complied with the law.
The substantial compliance rule has been applied to such
extent as to allow the attestation clause to be contained in
the body of the will itself and not a separate portion therein,
expressed in the first preson as a recital of the testator,
provided that it is also signed by the three instrumental
witnesses.
Justice JBL Reyes criticism of this article is enlightening:
The rule here is so broad that no matter how imperfect the
attestation clause happens to be, the same could be cured
by evidence aliunde. It thus renders the attestation of no
value in protecting fraud or really defective execution. The
rule must be limited to disregarding those defects that can
be supplied by an examination of the will itself:
1.
Whether all the pages are consecutively
numbered;
2.
W signature appears in each page;
3.
W the subscribing witnesses are three
4.
W the will is notarized
All these are facts that the will itself can reveal, and defects
or even omissions concerning them in the attestation clause
can be safely disregarded. But the total number of pages,
and whether all persons required to sign did so in the
number of pages, and whether all required to sign did so in
the presence of each other must substantially appear in the
attestation clause being the only check against perjury in
probate proceedings.
C. Holographic Wills
1.
eneral requirements.
Art. 804. Every will must be in writing and executed in a
language or dialect known to the testator. (n)
Our law does not recognize nuncupative wills, which is one
that is not written, but orally declared by the testator in his
last illness, in contemplation of death, and before a sufficient
number of competent witnesses.
The above requirement applies to both holographic and
notarial. In notarial wills it is immaterial who performs the
mechanical act writing the will, so long as the testator signs
it or has somebody sign his name in his presence upon his
direction.
As to the language or dialect, when a will is executed in a
certain province or locality, in the dialect currently usd in
such province or locality, there arises a presumption that the
testator knew the dialect so used, in the absence of contrary
evidence. It is not required that the will express that the
language is known by the testator it is a fact which may be
proved by evidence aliunde.
The attestation clause of an ordinary will does not have to be
written in a language or dialect known to the testator. It is not
part of the testamentary disposition. The language used in
the attestation clause does not even have to be known to the
witness; it should, however, be translated to them.
Art. 810. A person may execute a holographic will which
must be entirely written, dated, and signed by the hand
of the testator himself. It is subject to no other form, and
may be made in or out of the Philippines, and need not
be witnessed. (678, 688a)
T: the following are the advantages of a holographic will:
1. simple and easy to make for those a) who have no means
to employ a lawyer, b)who are timid and wants to reread
their wills before signing, c) those who have only very little
property to dispose
2. It induces foreigners in this jurisdiction to set down their
last wishes;
3. guaranties the absolute secrecy of the testamentary
disposition because it is not witnessed.
The disadvantages are:
1. does not gauranty testamentary capacity of testator;
2. no protection against vices of consent which may not be
known in case of death;
3. due to faulty expression, it may not express the true will of
the testator;
4. for the same reason, it can be easily concealed.
JBL Reyes criticizes this form of a will:
A holographic wills are peculiarly dangerous in case of
persons who have written very little. The validity of these
wills depends exclusively on the authenticity of the
handwriting, and if writing standards are not procurable, or
not contemporaneous, the courts are left to the mercy of the
mendacity of witnesses.

Its simplicity is an invitation to forgery, since the text may be

extremely short. If we want to permit the testator to keep his
wishes secret in order to avoid importunity, it can be done on
the basis of the closed will. (tstamento cerrado)
May a blind testator make a valid holographic will? There is
no question as to notarial wills it being allowed under the law
provided the will was read twice to the testator. As to
holographic wills, it is submitted that it may be allowed. The
testator, having written the holographic will by his own hand,
knows what it contains. He may have learned to write before
he became blind, or inspite of his blindness. This view has
been sustained in Louisiana, where it has been held that
blindness does not of itself prevent the making of a valid
holographic.
A HW may be in any form, but the intent to dispose mortis
causa must clearly appear in the context.
What would be the effect of words written by another and
inserted among the words written by the testator?
1. if insertion was made after execution bu w/o consent,
such is deemed not written;
2. if the insertion was after execution with the consent of
testator, the will remains valid but the insertion void;
3. if insertion was after execution and validated by testator
by his signature, the entire will is void because it is not
wholly written by the testator himself;
4. if insertion is contemporaneous to the execution the
effect same as no. 3.
As to date, the day, month, and year on which the will was
made should be indicated therein. The day and the
month,however, may be indicated by implication, so long as
the designation leaves no room for doubt as to exact date.
The validity of the holographic will is defeated by the fact
that part of the date is printed. Such as that written on a daily
planner though the contents are entirely written by the hand
but the testator relied on the date indicated on the planner,
the same is still extrinsically void.
Signatures of witnesses to a HW will not invalidate the will,
but will be disregarded as a mere surplusage.
A person can make a HW in the form of a letter in which he
states his testamentary dispositions giving it a character of a
will but the animus testatandi must be present.
Inaccuracy of the date due to involuntary error, or
inadvertence, the testator beingGin good faith, the court may
allow proof of the true date, provided such proof even
extrinsic can have a basis in the will itself.
The signature of the testator in HW is not the simple writing
of the name and surname of the testator. It is his name
written by him in his usual and habitual manner.
Under our law, the signature musr be at the end of the will.
Thus can be inferred from article 812 by the reference to
dispositions written below his signature this phrase implies
that the signature is at the end of the will and any disposition
below it must be further signed and dated.
Art. 812. In holographic wills, the dispositions of the
testator written below his signature must be dated and
signed by him in order to make them valid as
testamentary dispositions. (n)
T: the dispositions written below the testators dignature to
the will are considered as independent of the will itself;
hence, they must be signed and dated by the testator. If one
is not dated, even irf signed, that particular disposition will be
void, without affecting the validity of others or of the will
itself. And an unsigned and undated postscript to a
holographic will is invalid as to testamentary disposition.
Art. 813. When a number of dispositions appearing in a
holographic will are signed without being dated, and the
last disposition has a signature and a date, such date
validates the dispositions preceding it, whatever be the
time of prior dispositions. (n)
B: Thus, in case of several additional dispositions the
additional ones before the last are dated but unsigned, only
the last will be valid provided the last is dated and signed.
Roxas vs. De Jesus
Petitioner Simeon R. Roxas testified that after his
appointment as administrator, he found a notebook
belonging to the deceased Bibiana R. de Jesus and that on
pages 21, 22, 23 and 24 thereof, a letter-will addressed to
her children and entirely written and signed in the
handwriting of the deceased Bibiana R. de Jesus was found.
The will is dated "FEB./61" and states: "This is my will which
I want to be respected altho it is not written by a lawyer. . . "
On August 24, 1973, respondent Judge Jose C. Colayco
issued an order allowing the probate of the holographic Will
which he found to have been duly executed in accordance
with law.
Respondent Luz Roxas de Jesus filed a motion for
reconsideration alleging inter alia that the alleged
holographic Will of the deceased Bibiana R. de Jesus was
not dated as required by Article 810 of the Civil Code. She
contends that the law requires that the Will should contain
the day, month, and year of its execution and that this
should be strictly complied with.
The only issue is whether or not the date "FEB./61"
appearing on the holographic Will of the deceased Bibiana

28

Roxas de Jesus is a valid compliance with the Article 810 of

the Civil Code which reads:
ART. 810.
A person may execute a
holographic will which must be entirely written,
dated, and signed by the hand of the testator
himself. It is subject to no other form, and may be
made in or out of the Philippines, and need not be
witnessed."
The petitioners contend that while Article 685 of the Spanish
Civil Code and Article 688 of the Old Civil Code require the
testator to state in his holographic Will the "year, month, and
day of its execution," the present Civil Code omitted the
phrase "Ao, mes y dia" and simply requires that the
holographic Will should be dated. The petitioners submit that
the liberal construction of the holographic Will should prevail.
We agree with the petitioner.
This will not be the first time that this Court departs from a
strict and literal application of the statutory requirements
regarding the due execution of Wills. We should not overlook
the liberal trend of the Civil Code in the manner of execution
of Wills, the purpose of which, in case of doubt is to prevent
intestacy
"The underlying and fundamental objectives
permeating the provisions of the law on wills in this
Project consists in the liberalization of the manner
of their execution with the end in view of giving the
testator more freedom in expressing his last
wishes, but with sufficient safeguards and
restrictions to prevent the commission of fraud and
the exercise of undue and improper pressure and
influence upon the testator.
"This objective is in accord with the modern
tendency with respect to the formalities in the
execution of wills." (Report of the Code
Commission, p. 103)
". . . The law has a tender regard for the will of the
testator expressed in his last will and testament on
the ground that any disposition made by the
testator is better than that which the law can
make. For this reason, intestate succession is
nothing more than a disposition based upon the
presumed will of the decedent."
Thus, the prevailing policy is to require satisfaction of the
legal requirements in order to guard against fraud and bad
faith but without undue or unnecessary curtailment of
testamentary privilege (Icasiano v. Icasiano, 11 SCRA 422).
If a Will has been executed in substantial compliance with
the formalities of the law, and the possibility of bad faith and
fraud in the exercise thereof is obviated, said Will should be
admitted to probate
We have carefully reviewed the records of this case and
found no evidence of bad faith and fraud in its execution nor
was there any substitution of Wills and Testaments. There is
no question that the holographic Will of the deceased
Bibiana Roxas de Jesus was entirely written, dated, and
signed by the testatrix herself and in a language known to
her. There is also no question as to its genuineness and due
execution. All the children of the testatrix agree on the
genuineness of the holographic Will of their mother and that
she had the testamentary capacity at the time of the
execution of said Will. The objection interposed by the
oppositor-respondent Luz Henson is that the holographic
Will is fatally defective because the date "FEB./61"
appearing on the holographic Will is not sufficient
compliance with Article 810 of the Civil Code. This objection
is too technical to be entertained.
As a general rule, the "date" in a holographic Will should
include the day, month, and year of its execution. However,
when as in the case at bar, there is no appearance of fraud,
bad faith, undue influence and pressure and the authenticity
of the Will is established and the only issue is whether or not
the date "FEB./61" appearing on the holographic Will is a
valid compliance with Article 810 of the Civil Code, probate
of the holographic Will should be allowed under the principle
of substantial compliance.
WHEREFORE, the instant petition is GRANTED. The order
appealed from is REVERSED and SET ASIDE and the order
allowing the probate of the holographic Will of the deceased
Bibiana Roxas de Jesus is reinstated
Kalaw vs. Relova
On September 1, 1971, private respondent GREGORIO K.
KALAW, claiming to be the sole heir of his deceased sister,
Natividad K. Kalaw, filed a petition before the Court of First
Instance of Batangas, Branch VI, Lipa City, for the probate
of her holographic Will executed on December 24, 1968.

The holographic Will, as first written, named ROSA K.

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

case of any insertion,

erasure or alteration in a
will, the testator must
the same by his full

ROSA's position was that the holographic Will, as first

written, should be given effect and probated so that she
could be the sole heir thereunder.
From that Order, GREGORIO moved for reconsideration
arguing that since the alterations and/or insertions were
made by the testatrix, the denial to probate of her
holographic Will would be contrary to her right of
testamentary disposition. Reconsideration was denied in an
Order, dated November 2, 1973, on the ground that "Article
814 of the Civil Code being clear and explicit, (it) requires no
necessity for interpretation."
From that order, dated September 3, 1973, denying probate,
and the Order dated November 2, 1973 denying
reconsideration, ROSA filed this Petition for Review on
Certiorari on the sole legal question of whether or not the
original unaltered text after subsequent alterations and
insertions were voided by the Trial Court for lack of
authentication by the full signature of the testatrix, should be
probated or not, with her as sole heir.
Ordinarily, when a number of erasures, corrections, and
interlineations made by the testator in a holographic Will
have not been noted under his signature, . . . the Will is not
thereby invalidated as a whole, but at most only as respects
the particular words erased, corrected or interlined. 1
Manresa gave an identical commentary when he said "la
omision de la salvedad no anula el testamento, segun la
regla de jurisprudencia establecida en la sentencia de 4 de
Abril de 1895." 2
However, when as in this case, the holographic Will in
dispute had only one substantial provision, which was
altered by substituting the original heir with another, but
which alteration did not carry the requisite of full
authentication by the full signature of the testator, the effect
must be that the entire Will is voided or revoked for the
simple reason that nothing remains in the Will after that
which could remain valid. To state that the Will as first
written should be given efficacy is to disregard the seeming
change of mind of the testatrix. But that change of mind can
neither be given effect because she failed to authenticate it
in the manner required by law by affixing her full signature.
The ruling in Velasco, supra, must be held confined to such
insertions, cancellations, erasures or alterations in a
holographic Will, which affect only the efficacy of the altered
words themselves but not the essence and validity of the
Will itself. As it is, with the erasures, cancellations and
alterations made by the testatrix herein, her real intention
cannot be determined with certitude. WHEREFORE, this
Petition is hereby dismissed and the Decision of respondent
Judge, dated September 3, 1973, is hereby affirmed in toto.
No costs
V. INCORPORATION OF DOCUMENT BY REFERENCE
Art. 827. If a will, executed as required by this Code,
incorporates into itself by reference any document or
paper, such document or paper shall not be considered
a part of the will unless the following requisites are
present:
(1) The document or paper referred to in the
will must be in existence at the time of the
execution of the will;
(2) The will must clearly describe and identify
the same, stating among other things the
number of pages thereof;
(3) It must be identified by clear and
satisfactory proof as the document or paper
referred to therein; and
(4) It must be signed by the testator and the
witnesses on each and every page, except in
case of voluminous books of account or
inventories. (n)
Incorporation by reference is an exception to the rule that if
an instrument is not executed with all the formalities of a will
it cannot be admitted to probate. If a will duly executed and
witnessed according to the requirements of the statute,
incorporates in itself by reference any document or paper
not so executed and witnessed, whether such paper referred
to be in the form of a will or codicil, or of a deed or indenture,
or of a mere list or memorandum, the paper so referred to, if
it was in existence at the time of the execution of the will and
is identified by clear and satisfactory proof as the paper
referred to therein, will take effect as part of the will and be
admitted to probate as such.

29

To establish a separate writing as part of the will it must

appear on its face the ff:
1.
here must be distinct reference to such writing, so
explicit as to identify it beyond doubt, less is
sufficient, including parol evidence received.
2.
he reference must indicate the writing as already
existing;
3.
t can only be given effect to the extent that it
appears prima facie to have been the wish of the
testator.

4. testator cannot renounce

heirs

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.

B: The distinctions, however, is purely academic because

Article 826 requires the codicil to be in the form of a will
anyway.

C. Law Governing revocation t

Art. 829. A revocation done outside the Philippines, by a
person who does not have his domicile in this country,
is valid when it is done according
to the law of the place
i
where the will was made, or according to the law of the
place in which the testator had his domicile at the time;
and if the revocation takes place in this country, when it
is in accordance with the provisions of this Code. (n)
Rules for revocation:
A. if revocation in the
t Phil. Follow local laws
B. if outside the Phil.
1. testator not domiciled
t
in the Phil
a) follow law of the place where will
was made, or
b) follow law of the domicile of
testator at time of revocation
2. testator domiciled in the Phil. Art. 829 not
applicable:
a) follow Phil. Law- domiciliary
principle, or
b) follow law of place of revocationlex loci celebrationis, or
c) follow law of the place where will
was made ( by analogy with Art. 829)
D. Modes of Revocation
Art. 830. No will shall be revoked except in the following
cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing
executed as provided in case of wills; or
(3) By burning, tearing, cancelling, or
obliterating the will with the intention of
revoking it, by the testator himself, or by some
other person in his presence, and by his
express direction. If burned, torn, cancelled, or
obliterated by some other person, without the
express direction of the testator, the will may
still be established, and the estate distributed
in accordance therewith, if its contents, and
due execution, and the fact of its unauthorized
destruction, cancellation, or obliteration are
established according to the Rules of Court.
(n)
There is revocation by implication of law when certain acts
or events take place subsequent to making of a will, which
nullify or render inoperative either the will itself or some
testamentary disposition therein. Examples are the ff:

Must the codicil conform to the form of the will to which it

refers?

1. act of unworthiness by an heir, devisee, or legatee under

Art. 1032;

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.

2. transformation, alienation or loss of the thing devised or

legacy after execution of will (art. 957);

The following must likewise be shown by extrinsic proof:

1.
hat it is the very writing referred to in the will;
2.
hat it was in fact made before will was executed
B: This article refers to such documents as inventories,
books of account, documents of titile, and papers of similar
nature; the docs should under no circumstances, make
testamentary dispositions because formal requirements of
wills may be circumvented.
Can holographic wills incorporate documents by refernce?
It depends. No, because par. 4 of this article requires a
witness to sign on every page except voluminous docs. Only
ordinary wills requires witnesses unless of course a HW is
executed with witnesses superfluously.
VI. CODICIL
A.

Definitions and Solemnities

Art. 825. A codicil is supplement or addition to a will,

made after the execution of a will and annexed to be
taken as a part thereof, by which disposition made in the
original will is explained, added to, or altered. (n)
Art. 826. In order that a codicil may be effective, it shall
be executed as in the case of a will. (n)
T: After a testator has already made a will, a subsequent
instrument mortis causa may either be a codicil or a new will.
If the subsequent instrument explains the original will, or
alters, or adds to it, then it is a codicil. But if the later
instrument makes dispositions independent of those in the
original will, then it is a new will, not a codicil. A codicil is
always related to some prior will.

VII. REVOCATION OF WILLS AND TESTAMENTARY

DISPOSITIONS
A.

Definitions of revocation

Revocation is an act of the mind, terminating the potential

capacity of the will to operate at the death of the testator,
manifested by some outward and visible act or sign,
symbolic thereof.
Revocation is the recall of some power, authority, or a thing
granted or a destroying or making void of some deed that
had existence until the act of revocation made it void.
(Blacks Law Dictionary)

3. Judicial demand by the testator of a credit given as legacy

art. 936;
4. preterition of compulsory heirs article 854;
5. sale of property given as devise or legacy for the payment
of the debts of the testator.
Enumeration is not exclusive.
Subsequent Instrument
A subsequent will containing a clause revoking a previous
will should possess all the requisites of a will, whether it be
an ordinary or holographic will, and should be probated,in
order that the revocatory clause may produce the effect of
revoking the previous will.
Destruction of a will

Art. 828. A will may be revoked by the testator at any

time before his death. Any waiver or restriction of this
right is void. (737a)
T: During the life of the testator the will is said to be
ambulatory and may be altered, revoked, or superseded at
any time. Its is of no possible effect as a will while the maker
lives.
A will may be revoked at pleasure. Revocation is an act of
the mind, terminating the potential capacity of the will to
operate at the death of the testator, manifested by some
outward and visible act or sign, symbolic thereof.
Revocation
vs.
Nullity
1. act of testator
1. proceeds from law
2. presupposes a valid act
2. inherent from the will
3. inter vivos
3. invoked After death

1. the testator must at the time or

revocation be of sound mind. The same
degree of mental capacity is required to
revoke a will as to make one;
2. the burning, tearing, canceling, or
obliteration of the will must be done with
animo revocandi and must actually be carried
out. The mental process or intent to revoke
must concur with the physical fact or actual
destruction of the will;
where a testatrix was about to burn a will in an envelope,
with the intention of revoking it, but a third person
fraudulently replced the will inside thought he testatrix
believed the will was destroyed, still no revocation occurred.
However, if the third person is a devisee or legatee who
prevents the revocation by threats, fraud or violence, the will
is revoked as to him, by implication of law on the ground of
unworthiness.

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

properties remained at the time of death (of the testatrix);

and, furthermore, more valuable properties have been
acquired after the execution of the will on January 3, 1940."
7 Suffice it to state here that as these additional matters
raised by the private respondents are extraneous to this
special proceeding, they could only be appropriately taken
up after the will has been duly probated and a certificate of
its allowance issued.
WHEREFORE, judgment is hereby rendered REVERSING
and SETTING ASIDE the Decision dated June 7, 1985 and
the Resolution dated October 22, 1986, of the respondent
Court of Appeals, and a new one ENTERED for the
allowance of Adriana Maloto's last will and testament. Costs
against the private respondents.

1918, (Exhibit A) and another executed on June 20, 1939,

(Exhibit I). The latter will contains a clause which expressly
revokes the will executed in 1918.

E. Effect of revocation

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

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

Art. 831. Subsequent wills which do not revoke the

previous ones in an express manner, annul only such
dispositions in the prior wills as are inconsistent with or
contrary to those contained in the latter wills. (n)
Revocation may be:
Express- when the later declares the former or all former
wills revoked.
Implied- when it merely makes disposition inconsistent with
the provisions of the former wills, the later will annuls only
such disposiotion in prior wills as are inconsisten with those
contained in the subsequent will. Or if there appears an
intention of the testator to dispose of his property in a
manner different from the first will, it is to the extent revoked.
If two similar wills are executed on the same day they may
constituted as the same will.
Art. 832. A revocation made in a subsequent will shall
take effect, even if the new will should become
inoperative by reason of the incapacity of the heirs,
devisees or legatees designated therein, or by their
renunciation. (740a)
The Doctrine of Dependent Relative Revocation entails that
the revocation will be conditional and dependent upon the
efficacy of the new disposition; and if, for any reason, the
new will intended to be made as substitute is inoperative, the
revocation fails and the original will remain in full force. The
failure of the new testamentary disposition is equivalent to
the non-fulfillment of a suspensive condition which prebvents
revocation of the first will.
The article contemplates a case where a subsequent will
revokes a prior one, and the validity of the later will is
established, but its provisions cannot be carried out because
of incapacity of or renunciation by the beneficiaries named
therein. The revocation is ineffective, because of the clear
intent of the testator to revoke , contained in a valid will. The
validity of the new will prevents the operation of the principle
of dependent relative revocation, even if the new
dispositions cannot be carried out.
Art. 833. A revocation of a will based on a false cause or
an illegal cause is null and void. (n)
T: if the act of revocation is induced by a belief which turns
out to be false, there is no revocation. The fact, with regard
to which the mistake was made, must, however, appear
upon the face of the instrument. Parol evidence not
competent tp prove revocation was induced by false
assumption of fact or law.
Where the facts alleged by the testator were peculiarly w/in
his knowledge, or the testator must have known the truth of
the facts alleged by him, it does not matter whether they are
true or not; the revocation in such case is absolute.
B: Requisites for Article 833:
1. the cause must be concrete, factual and not
purely subjective
2. it must be false;
3. the testator must know its falsity
4. it must appear that the testator is revoking
because of the cause which is false.
5. the illegal cause should be stated in the will
as the cause of revocation
Art. 834. The recognition of an illegitimate child does not
lose its legal effect, even though the will wherein it was
made should be revoked. (714)
T: the recognition does not lose its legal effect even if the will
is revoked, because the recognition is not a testamentary
disposition; it takes effect upon the execution of the will and
not upon the death of the testator.
B: Recognition is an irrevocable act, even if will is revoked
recognition remains.
Molo vs. Molo
Mariano Molo y Legaspi died on January 24, 1941, in the
municipality of Pasay, province of Rizal, without leaving any
forced heir either in the descending or ascending line. He
was survived, however, by his wife, the herein petitioner
Juana Juan Vda. de Molo, and by his nieces and nephew,
the oppositors-appellants, Luz, Gliceria and Cornelio, all
surnamed Molo, who were the legitimate children of Candido
Molo y Legaspi, deceased brother of the testator. Mariano
Molo y Legaspi left two wills, one executed on August 17,

The next contention of appellants refers to the revocatory

clause contained in the 1939 will of the deceased which was
denied probate. They contend that, notwithstanding the
disallowance of said will, the revocatory clause is valid and
still has the effect of nullifying the prior will of 1918. Counsel
for petitioner meets this argument by invoking the doctrine
laid down in the case of Samson vs. Naval, (41 Phil., 838).
He contends that the facts involved in that case are on all
fours with the facts of this case. Hence, the doctrine in that
case is here controlling.

"A subsequent will, containing a clause revoking a previous

will, having been disallowed, for the reason that it was not
executed in conformity with the provisions of section 618 of
the Code of Civil Procedure as to the making of wills, cannot
produce the effect of annulling the previous will, inasmuch
as said revocatory clause is void." (41 Phil., 838.)
"It is universally agreed that where the second will
is invalid on account of not being executed in
accordance with the provisions of the statute, or
where the testator has not sufficient mental
capacity to make a will or the will is procured
through undue influence, or the such, in other
words, where the second will is really no will, it
does not revoke the first will or affect it in any
manner." Mort vs. Baker University (1935) 229
Mo. App., 632, 78 S. W. (2d), 498."
These treaties cannot be mistaken. They uphold the view on
which the ruling in the Samson case is predicated. They
reflect the opinion that this ruling is sound and good and for
this reason we see no justification for abandoning it as now
suggested by counsel for the oppositors.
It is true that our law on the matter (sec. 623, Code of Civil
Procedure) provides that a will may be revoked "by some
will, codicil, or other writing executed as provided in case of
wills"; but it cannot be said that the 1939 will should be
regarded, not as a will within the meaning of said word, but
as "other writing executed as provided in the case of wills",
simply because it was denied probate. And even if it be
regarded as any other writing within the meaning of said
clause, there is authority for holding that unless said writing
is admitted to probate, it cannot have the effect of
revocation. (See 57 Am. Jur. pp. 329-330).
Granting for the sake of argument that the earlier will was
voluntarily destroyed by the testator after the execution of
the second will, which revoked the first, could there be any
doubt, under this theory, that said earlier will was destroyed
by the testator in the honest belief that it was no longer
necessary because he had expressly revoked it in his will of
1939? In other words, can we not say that the destruction of
the earlier will was but the necessary consequence of the
testator's belief that the revocatory clause contained in the
subsequent will was valid and the latter would be given
effect? If such is the case, then it is our opinion that the
earlier will can still be admitted to probate under the principle
of "dependent relative revocation".
"This doctrine is known as that of dependent
relative revocation, and is usually applied where
the testator cancels or destroys a will or executes
an instrument intended to revoke a will with a
present intention to make a new testamentary
disposition as a substitute for the old, and the new
disposition is not made or, if made, fails of effect
for some reason. The doctrine is not limited to the
existence of some other document, however, and
has been applied where a will was destroyed as a
consequence of a mistake of law . . .." (68 C. J. p.
799).
"The rule is established that where the act of
destruction is connected with the making of
another will so as fairly to raise the inference that
the testator meant the revocation of the old to
depend upon the efficacy of the new disposition
intended to be substituted, the revocation will be
conditional and dependent upon the efficacy of the
new disposition; and if, for any reason, the new
will intended to be made as a substitute is
inoperative, the revocation fails and the original
will remains in full force." (Gardner, pp. 232, 233.)

32

"This is the doctrine of dependent relative

revocation. The failure of the new testamentary
disposition, upon whose validity the revocation
depends, is equivalent to the non-fulfillment of a
suspensive condition, and hence prevents the
revocation of the original will. But a mere intent to
make at some time a will in place of that destroyed
will not render the destruction conditional. It must
appear that the revocation is dependent upon the
valid execution of a new will." (1 Alexander, p.
751; Gardner, p. 233.)
We hold, therefore, that even in the supposition that the
destruction of the original will by the testator could be
presumed from the failure of the petitioner to produce it in
court, such destruction cannot have the effect of defeating
the prior will of 1918 because of the fact that it is founded on
the mistaken belief that the will of 1939 has been validly
executed and would be given due effect. The theory on
which this principle is predicated is that the testator did not
intend to die intestate. And this intention is clearly manifest
when he executed two wills on two different occasions and
instituted his wife as his universal heir. There can therefore
be no mistake as to his intention of dying testate.
The remaining question to be determined refers to the
sufficiency of the evidence to prove the due execution of the
will.
The will in question was attested, as required by law, by
three witnesses, Lorenzo Morales, Rufino Enriquez, and
Angel Cuenca. The first two witnesses died before the
commencement of the present proceedings. So the only
instrumental witness available was Angel Cuenca and under
our law and precedents, his testimony is sufficient to prove
the due execution of the will. However, petitioner presented
not only the testimony of Cuenca but placed on the witness
stand Juan Salcedo, the notary public who prepared and
notarized the will upon the express desire and instruction of
the testator. The testimony of these witnesses shows that
the will had been executed in the manner required by law.
We have read their testimony and we were impressed by
their readiness and sincerity. We are convinced that they
told the truth.
VIII. REPUBLICATION AND REVIVAL OF WILLS
Art. 835. The testator cannot republish, without
reproducing in a subsequent will, the dispositions
contained in a previous one which is void as to its form.
(n)
Art. 836. The execution of a codicil referring to a
previous will has the effect of republishing the will as
modified by the codicil. (n)
Art. 837. If after making a will, the testator makes a
second will expressly revoking the first, the revocation
of the second will does not revive the first will, which
can be revived only by another will or codicil. (739a)
IX. ALLOWANCE OF WILLS
Art. 838. No will shall pass either real or personal
property unless it is proved and allowed in accordance
with the Rules of Court.
The testator himself may, during his lifetime, petition the
court having jurisdiction for the allowance of his will. In
such case, the pertinent provisions of the Rules of Court
for the allowance of wills after the testator's a death
shall govern.
The Supreme Court shall formulate such additional
Rules of Court as may be necessary for the allowance of
wills on petition of the testator.
Subject to the right of appeal, the allowance of the will,
either during the lifetime of the testator or after his
death, shall be conclusive as to its due execution. (n)
A. Concept of Probate
To probate a will means to prove before some officer or
tribunal, vested by law with authority for that purpose, that
the instrument offered to be proved is the last will and
testament of the deceased person whose testamentary act it
is alleged to be, and that it has been executed, attested and
published as required by law, and that the testator was of
sound and disposing mind. It is a civil proceeding to
establish the validity of the will.
Revocation
vs.
1. by the act of testator
2. even without cause
3. may be partial

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

2. consent was not vitiated

3. will was signed by the required number of witnesses
4. it is genuine and authentic
In sum it involves:
a. Testatmentary Capacity
b. due execution thereof
c. genuineness
6. De Borja vs. De Borja
It is uncontested that Francisco de Borja, upon the death of
his wife Josefa Tangco on 6 October 1940, filed a petition for
the probate of her will which was docketed as Special
Proceeding No. R-7866 of the Court of First Instance of
Rizal, Branch I. The will was probated on 2 April 1941. In
1946, Francisco de Borja was appointed executor and
administrator: in 1952, their son, Jose de Borja, was
appointed co-administrator. When Francisco died, on 14
April 1954, Jose became the sole administrator of the testate
estate of his mother, Jose Tangco While a widower
Francisco de Borja allegedly took unto himself a second
wife, Tasiana Ongsingco. Upon Francisco's death, Tasiana
instituted testate proceedings in the Court of First Instance
of Nueva Ecija, where, in 1955, she was appointed special
administratrix. The validity of Tasiana's marriage to
Francisco was questioned in said proceeding.
The relationship between the children of the first marriage
and Tasiana Ongsingco has been plagued with several court
suits and counter-suits; including the three cases at bar,
some eighteen (18) cases remain pending determination in
the courts. The testate estate of Josefa Tangco alone has
been unsettled for more than a quarter of a century. In order
to put an end to all these litigations, a compromise
agreement was entered into on 12 October 1963, 2 by and
between "[T]he heir and son of Francisco de Borja by his
first marriage, namely, Jose de Borja personally and as
administrator of the Testate Estate of Josefa Tangco," and
"[T]he heir and surviving spouse of Francisco de Borja by his
second marriage, Tasiana Ongsingco Vda. de Borja,
assisted by her lawyer, Atty. Luis Panaguiton, Jr."
On 16 May 1966, Jose de Borja submitted for Court
approval the agreement of 12 October 1963 to the Court of
First Instance of Rizal, in Special Proceeding No. R-7866;
and again, on 8 August 1966, to the Court of First Instance
of Nueva Ecija, in Special Proceeding No. 832. Tasiana
Ongsingco Vda. de de Borja opposed in both instances. The
Rizal court approved the compromise agreement, but the
Nueva Ecija court declared it void and unenforceable.
Special administratrix Tasiana Ongsingco Vda. de de Borja
appealed the Rizal Court's order of approval (now Supreme
Court G.R. case No. L-28040), while administrator Jose de
Borja appealed the order of disapproval (G.R. case No. L28568) by the Court of First Instance of Nueva Ecija.
The genuineness and due execution of the compromise
agreement of 12 October 1963 is not disputed, but its validity
is, nevertheless, attacked by Tasiana Ongsingco on the
ground that: (1) the heirs cannot enter into such kind of
agreement without first probating the will of Francisco de
Borja; (2) that the same involves a compromise on the
validity of the marriage between Francisco de Borja and
Tasiana Ongsingco; and (3) that even if it were valid, it has
ceased to have force and effect.
In assailing the validity of the agreement of 12 October
1963, Tasiana Ongsingco and the Probate Court of Nueva
Ecija rely on this Court's decision in Guevara vs. Guevara.
74 Phil. 479, wherein the Court's majority held the view that
the presentation of a will for probate is mandatory and that
the settlement and distribution of an estate on the basis of
intestacy when the decedent left a will, is against the law
and public policy. It is likewise pointed out by appellant
Tasiana Ongsingco that Section 1 of Rule 74 of the Revised
Rules explicitly conditions the validity of an extrajudicial
settlement of a decedent's estate by agreement between
heirs, upon the facts that "(if) the decedent left no will and no
debts, and the heirs are all of age, or the minors are
represented by their judicial and legal representatives . . ."
The will of Francisco de Borja having been submitted to the
Nueva Ecija Court and still pending probate when the 1963
agreement was made, those circumstances, it is argued, bar
the validity of the agreement.
Upon the other hand, in claiming the validity of the
compromise agreement, Jose de Borja stresses that at the
time it was entered into, on 12 October 1963, the governing
provision was Section 1, Rule 74 of the original Rules of
Court of 1940, which allowed the extrajudicial settlement of
the estate of a deceased person regardless of whether he
left a will or not. He also relies on the dissenting opinion of
Justice Moran, in Guevara vs. Guevara, 74 Phil. 479,
wherein was expressed the view that if the parties have
already divided the estate in accordance with a decedent's
will, the probate of the will is a useless ceremony; and if they
have divided the estate in a different manner, the probate of
the will is worse than useless.
This provision evidences beyond doubt that the ruling in the
Guevara case is not applicable to the cases at bar. There
was here no attempt to settle or distribute the estate of
Francisco de Borja among the heirs thereto before the
probate of his will. The clear object of the contract was

33

merely the conveyance by Tasiana Ongsingco of any and all

her individual share and interest, actual or eventual, in the
estate of Francisco de Borja and Josefa Tangco. There is no
stipulation as to any other claimant, creditor or legatee And
as a hereditary share in a decedent's estate is transmitted or
vested immediately from the moment of the death of such
causante or predecessor in interest (Civil Code of the
Philippines, Art. 777) 3 there is no legal bar to a successor
(with requisite contracting capacity) disposing of her or his
hereditary share immediately after such death, even if the
actual extent of such share is not determined until the
subsequent liquidation of the estate. 4 Of course, the effect
of such alienation is to be deemed limited to what is
ultimately adjudicated to the vendor heir. However, the
aleatory character of the contract does not affect the validity
of the transaction; neither does the coetaneous agreement
that the numerous litigations between the parties (the
approving order of the Rizal Court enumerates fourteen of
them, Rec. App. pp. 79-82) are to be considered settled and
should be dismissed, although such stipulation, as noted by
the Rizal Court, gives the contract the character of a
compromise that the law favors, for obvious reasons, if only
because it serves to avoid a multiplicity of suits.
It is likewise worthy of note in this connection that as the
surviving spouse of Francisco de Borja, Tasiana Ongsingco
was his compulsory heir under article 995 et seq. of the
present Civil Code. Wherefore, barring unworthiness or valid
disinheritance,
her
successional
interest
existed
independent of Francisco de Borja's last will and testament,
and would exist even if such will were not probated at all.
Thus, the prerequisite of a previous probate of the will, as
established in the Guevara and analogous cases, can not
apply to the case of Tasiana Ongsingco Vda. de de Borja.
This brings us to the plea that the Court of First In stance of
Rizal had no jurisdiction to approve the compromise with
Jose de Borja (Annex A) because Tasiana Ongsingco was
not an heir in the estate of Josefa Tangco pending
settlement in the Rizal Court, but she was an heir of
Francisco de Borja, whose estate was the object of Special
Proceeding No. 832 of the Court of First Instance of Nueva
Ecija. This circumstance is irrelevant, since what was sold by
Tasiana Ongsingco was only her eventual share in the
estate of her late husband, not the estate itself; and as
already shown, that eventual share she owned from the time
of Francisco's death and the Court of Nueva Ecija could not
bar her selling it. As owner of her undivided hereditary
share, Tasiana could dispose of it in favor of whomsoever
she chose Such alienation is expressly recognized and
provided for by article 1088 of the present Civil Code:
Art. 1088. Should any of the heirs sell his hereditary rights to
a stranger before the partition, any or all of the co-heirs may
be subrogated to the rights of the purchaser by reimbursing
him for the price of the sale, provided they do so within the
period of one month from the time they were notified in writing
of the sale of the vendor."
Tasiana Ongsingco further argues that her contract with
Jose de Borja (Annex "A") is void because it amounts to a
compromise as to her status and marriage with the late
Francisco de Borja. The point is without merit, for the very
opening paragraph of the agreement with Jose de Borja
(Annex "A") describes her as "the heir and surviving spouse
of Francisco de Borja by his second marriage, Tasiana
Ongsingco Vda. de de Borja", which is in itself definite
admission of her civil status. There is nothing in the text of
the agreement that would show that this recognition of
Ongsingco's status as the surviving spouse of Francisco de
Borja was only made in consideration of the cession of her
hereditary rights.
It is difficult to believe, however, that the amicable settlement
referred to in the order and motion above-mentioned was the
compromise agreement of 13 October 1963, which already
had been formally signed and executed by the parties and
duly notarized. What the record discloses is that some time
after its formalization, Ongsingco had unilaterally attempted
to back out from the compromise agreement, pleading
various reasons restated in the opposition to the Court's
approval of Annex "A" (Record on Appeal, L-20840, page
23): that the same was invalid because of the lapse of the
allegedly intended resolutory period of 60 days and because
the contract was not preceded by the probate of Francisco
de Borja's will, as required by this Court's Guevarra vs.
Guevara ruling; that Annex "A" involved a compromise
affecting Ongsingco's status as wife and widow of Francisco
de Borja, etc., all of which objections have been already
discussed.
It was natural that in view of the widow's attitude, Jose de
Borja should attempt to reach a new settlement or novatory
agreement before seeking judicial sanction and enforcement
of Annex "A", since the latter step might ultimately entail a
longer delay in attaining final remedy. That the attempt to
reach another settlement failed is apparent from the letter of
Ongsingco's counsel to Jose de Borja quoted in pages 35-36
of the brief for appellant Ongsingco in G.R. No. L-28040;
and it is more than probable that the order of 21 September
1964 and the motion of 17 June 1964 referred to the failure
of the parties' quest for a more satisfactory compromise. But
the inability to reach a novatory accord can not invalidate the

original compromise (Annex "A") and justifies the act of Jose

de Borja in finally seeking a court order for its approval and
enforcement from the Court of First Instance of Rizal, which,
as heretofore described, decreed that the agreement be
ultimately performed within 120 days from the finality of the
order, now under appeal. We conclude that in so doing, the
Rizal court acted in accordance with law, and, therefore, its
order should be upheld, while the contrary resolution of the
Court of First Instance of Nueva Ecija should be, and is,
reversed.
C. Modes of Probate
Two kinds of probate under Art. 838
1. Ante mortem probate or that which is had
during the lifetime of the testator. This is an
innovation to our laws on succession.
Ratio:
a. easier for the courts to determine the mental
condition of testator during his lifetime.
b. Fraud, intimidation, undue influence are
minimized
c. If will found to be non conforming to the
requirements provided for by law the same maybe
corrected at once
d. Will lessen the number of contest upon wills,
since testator still alive his animus testandi is
determinable at once.
2. Post mortem or that which is had after death
D. Requirements for Probate
The Revised rules of Court provides for the requirements
and procedure for probating a will as follows:
RULE 75
PRODUCTION OF WILL. ALLOWANCE OF WILL
NECESSARY
SECTION 1. Allowance necessary. Conclusive as to
execution.No will shall pass either real or personal estate
unless it is proved and allowed in the proper court. Subject
to the right of appeal, such allowance of the will shall be
conclusive as to its due execution.
SEC. 2. Custodian of will to deliver.The person who has
custody of a will shall, within twenty (20) days after he knows
of the death of the testator, deliver the will to the court
having jurisdiction, or to the executor named In the will.
SEC. 3. Executor to present will and accept or refuse
trust.A person named as executor in a will shall, within
twenty (20) days after he knows of the death of the testator,
or within twenty (20) days after he knows that be is named
executor if he obtained such knowledge after the death of
the testator, present such will to the court having jurisdiction,
unless the will has reached the court in any other manner,
and shall, within such period, signify to the court in writing
his acceptance of the trust or his refusal to accept it.
SEC. 4. Custodian and executor subject to fine for
neglect.A person who neglects any of the duties required
in the two last preceding sections without excuse
satisfactory to the court shall be fined not exceeding two
thousand pesos.
SEC. 5. Person retaining will may be committed.A person
having custody of a will after the death of the testator who
neglects without reasonable cause to deliver the same,
when ordered so to do, to the court having jurisdiction, may
be committed to prison and there kept until he delivers the
will.
RULE 76
ALLOWANCE OR DISALLOWANCE OF WILL
SECTION 1. Who may petition for the allowance of will.
Any executor, devisee, or legatee named in a will, or any
other person interested in the estate, may, at any time after
the death of the testator, petition the court having jurisdiction
to have the will allowed, whether the same be in his
possession or not, or is lost or destroyed.
The testator himself may, during his lifetime, petition the
court for the allowance of his will.
SEC. 2. Contents of petition.A petition for the allowance of
a will must show, so far as known to the petitioner:
(a) The jurisdictional facts;
(b) The names, ages, and residences of the heirs,
legatees, and devisees of the testator or decedent;
(c) The probable value and character of the property of
the estate;
(d) The name of the person for whom letters are
prayed;
(e) If the will has not been delivered to the court, the
name of the person having custody of it.
But no defect in the petition shall render void the allowance
of the will, or the issuance of letters testamentary or of
administration with the will annexed.
SEC. 3. Court to appoint time for proving will. Notice thereof
to be published.When a will is delivered to, or a petition for
the allowance of a will is filed in, the court having jurisdiction,
such court shall fix a time and place for proving the will when
all concerned may appear to contest the allowance thereof,

34

and shall cause notice of such time and place to be

published three (3) weeks successively, previous to the time
appointed, in a newspaper of general circulation in the
province.
But no newspaper publication shall be made where the
petition for probate has been filed by the testator himself.
SEC. 4. Heirs, devisees, legatees, and executors to be
notified by mail or personally.The court shall also cause
copies of the notice of the time and place fixed for proving
the will to be addressed to the designated or other known
heirs, legatees, and devisees of the testator resident in the
Philippines at their places of residence, and deposited in the
post office with the postage thereon prepaid at least twenty
(20) days before the hearing, if such places of residence be
known. A copy of the notice must in like manner be mailed to
the person named as executor, if he be not the petitioner,
also, to any person named as co-executor not petitioning, if
their places of residence be known. Personal service of
copies of the notice at least ten (10) days before the day of
hearing shall be equivalent to mailing.
If the testator asks for the allowance of his own will, notice
shall be sent only to his compulsory heirs.
SEC. 5. Proof at hearing. What sufficient in absence of
contest.At the hearing compliance with the provisions of
the last two preceding sections must be shown before the
introduction of testimony in support of the will. All such
testimony shall be taken under oath and reduced to writing.
If no person appears to contest the allowance of the will, the
court may grant allowance thereof on the testimony of one of
the subscribing witnesses only, if such witness testify that
the will was executed as is required by law.
In the case of a holographic will, it shall be necessary that at
least one witness who knows the handwriting and signature
of the testator explicitly declare that the will and the
signature are in the handwriting of the testator. In the
absence of any such competent witness, and if the court
deem it necessary, expert testimony may be resorted to.
SEC. 6. Proof of lost or destroyed will. Certificate
thereupon.No will shall be proved as a lost or destroyed
will unless the execution and validity of the same be
established and the will is proved to have been in existence
at the time of the death of the testator, or is shown to have
been fraudulently or accidentally destroyed in the lifetime of
the testator without his knowledge, nor unless its provisions
are clearly and distinctly proved by at least two (2) credible
witnesses. When a lost will is proved, the provisions thereof
must be distinctly stated and certified by the judge, under the
seal of the court, and the certificate must be filed and
recorded as other wills are filed and recorded.
SEC. 7. Proof when witnesses do not reside in province.If
it appears at the time fixed for the hearing that none of the
subscribing witnesses resides in the province, but that the
deposition of one or more of them can be taken elsewhere,
the court may, on motion, direct It to be taken, and may
authorize a photographic copy of the will to be made and to
be presented to the witness on his examination, who may be
asked the same questions with respect to it and to the
handwriting of the testator and others, as would be pertinent
and competent if the original will were present.
SEC. 8. Proof when witnesses dead or insane or do not
reside in the Philippines.If it appears at the time fixed for
the hearing that the subscribing witnesses are dead or
insane, or that none of them resides in the Philippines, the
court may admit the testimony of other witnesses to prove
the sanity of the testator, and the due execution of the will;
and as evidence of the execution of the will, it may admit
proof of the handwriting of the testator and of the subscribing
witnesses, or of any of them.
SEC. 9. Grounds for disallowing will.The will shall be
disallowed in any of the following cases:
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally
incapable to make a will, at the time of its execution;
(c) If it was executed under duress, or the influence of
fear, or threats;
(d) If it was procured by undue and improper pressure
and influence, on the part of the beneficiary, or of
some other person for his benefit;
(e) If the signature of the testator was procured by
fraud or trick, and he did not intend that the instrument
should be his will at the time of fixing his signature
thereto.
SEC. 10. Contestant to file grounds of contest.Anyone
appearing to contest the will must state in writing his
grounds for opposing its allowance, and serve a copy
thereof on the petitioner and other parties interested in the
estate.
SEC. 11. Subscribing witnesses produced or accounted for
where will contested.If the will is contested, all the
subscribing witnesses, and the notary in the case of wills
executed under the Civil Code of the Philippines, if present
in the Philippines, and not insane, must be produced and
examined, and the death, absence, or insanity of any of
them must be satisfactorily shown to the court. If all or some
of such witnesses are present in the Philippines but outside
the province where the will has been filed, their deposition
must be taken. If any or all of them testify against the due
execution of the will, or do not remember having attested to

it, or are otherwise of doubtful credibility, the will may,

nevertheless, be allowed if the court is satisfied from the
testimony of other witnesses and from all the evidence
presented that the will was executed and attested in the
manner required by law.
If a holographic will is contested, the same shall be allowed
if at least three (3) witnesses who know the handwriting of
the testator explicitly declare that the will and the signature
are in the handwriting of the testator; in the absence of any
competent witness, and if the court deem it necessary,
expert testimony may be resorted to.
SEC. 12. Proof where testator petitions for allowance of
holographic will.Where the testator himself petitions for the
probate of his holographic will and no contest is filed, the
fact that he affirms that the holographic will and the
signature are in his own handwriting, shall be sufficient
evidence of the genuineness and due execution thereof. If
the holographic will is contested, the burden of disproving
the genuineness and due execution thereof shall be on the
contestant The testator may, in his turn, present such
additional proof as may be necessary to rebut the evidence
for the contestant.
SEC. 13. Certificate of allowance attached to proved will. To
be recorded in the Office of Register of Deeds.If the court
is satisfied, upon proof taken and filed, that the will was duly
executed, and that the testator at the time of its execution
was of sound and disposing mind, and not acting under
duress, menace, and undue influence, or fraud, a certificate
of its allowance, signed by the judge, and attested by the
seal of the court shall be attached to the will and the will and
certificate filed and recorded by the clerk. Attested copies of
the will devising real estate and of certificate of allowance
thereof, shall be recorded in the register of deeds of the
province in which the lands lie.
Art. 811. In the probate of a holographic will, it shall be
necessary that at least one witness who knows the
handwriting and signature of the testator explicitly
declare that the will and the signature are in the
handwriting of the testator. If the will is contested, at
least three of such witnesses shall be required.
In the absence of any competent witness referred to in
the preceding paragraph, and if the court deem it
necessary, expert testimony may be resorted to. (619a)
Gan vs. Yap
On November 20, 1951, Felicidad Esguerra Alto Yap died of
heart failure in the University of Santo Tomas Hospital,
leaving properties in Pulilan, Bulacan, and in the City of
Manila.
On March 17, 1952, Fausto E. Gan initiated these
proceedings in the Manila court of first instance with a
petition for the probate of a holographic will allegedly
executed by the deceased, Opposing the petition, her
surviving husband Ildefonso Yap asserted that the deceased
had not left any will, nor executed any testament during her
lifetime.
Sometime in 1950 after her last trip abroad, Felicidad
Esguerra mentioned to her first cousin, Vicente Esguerra,
her desire to make a will. She confided however that it would
be useless if her husband discovered or knew about it.
Vicente consulted with Fausto E. Gan, nephew of Felicidad,
who was then preparing for the bar examinations. The latter
replied it could be done without any witness, provided the
document was entirely in her handwriting, signed and dated
by her. Vicente Esguerra lost no time in transmitting the
information, and on the strength of it, in the morning of
November 5, 1951, in her residence at Juan Luna Street,
Manila, Felicidad wrote, signed and dated a holographic will
substantially of the tenor above transcribed, in the presence
of her niece, Felina Esguerra (daughter of Vicente), who was
invited to read it. In the afternoon of that day, Felicidad was
visited by a distant relative, Primitivo Reyes, and she
allowed him to read the will in the presence of Felina
Esguerra, who again read it.
The trial judge refused to credit the petitioner's evidence for
several reasons, the most important of which were these: (a)
if according to his evidence, the decedent wanted to keep
her will a secret, so that her husband would not know it, it is
strange she executed it in the presence of Felina Esguerra,
knowing as she did that witnesses were unnecessary; (b) in
the absence of a showing that Felina was a confidant of the
decedent it is hard to believe that the latter would have
allowed the former to see and read the will several times; (c)
it is improbable that the decedent would have permitted
Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte to
read her will, when she precisely wanted its contents to
remain a secret during her lifetime; (d) it is also improbable
that her purpose being to conceal the will from her husband
she would carry it around, even to the hospital, in her purse
which could for one reason or another be opened by her
husband; (e) if it is true that the husband demanded the
purse from Felina in the U.S.T. Hospital and that the will was
there, it is hard to believe that he returned it without
destroying the will, the theory of the petitioner being
precisely that the will was executed behind his back for fear
he will destroy it.
The New Civil Code effective in 1950 revived holographic
wills in its arts. 810-814. "A person may execute a

35

holographic will which must be entirely written, dated, and

signed by the hand of the testator himself. It is subject to no
other form and may be made in or out of the Philippines, and
need not be witnessed."
The object of such requirements it has been said, is to close
the door against bad faith and fraud, to prevent substitution
of wills, to guarantee their truth and authenticity (Abangan
vs. Abangan, 40 Phil., 476) and to avoid that those who
have no right to succeed the testator would succeed him and
be benefited with the probate of same. (Mendoza vs. Pilapil,
40 off. Gaz., 1855). However, formal imperfections may be
brushed aside when authenticity of the instrument is duly
proved.
Now, in the matter of holographic wills, no such guaranties
of truth and veracity are demanded, since as stated, they
need no witnesses; provided however, that they are "entirely
written, dated, and signed by the hand of the testator
himself." The law, it is reasonable to suppose, regards the
document itself as material proof of authenticity, and as its
own safeguard, since it could at any time, be demonstrated
to be or not to be in the hands of the testator himself.
"In the probate of a holographic will" says the New Civil
Code, "it shall be necessary that at least one witness who
knows the handwriting and signature of the testator explicitly
declare that the will and the signature are in the handwriting
of the testator. If the will is contested, at least three such
witnesses shall be required. In the absence of any such
witnesses, (familiar with decedent's handwriting) and if the
court deem it necessary, expert testimony may be resorted
to."
The witnesses so presented do not need to have seen the
execution of the holographic will. They may be mistaken in
their opinion of the handwriting, or they may deliberately lie
in affirming it is in the testator's hand. However, the
oppositor may present other witnesses who also know the
testator's handwriting, or some expert witnesses, who after
comparing the will with other writings or letters of the
deceased, have come to the conclusion that such will has
not been written by the hand of the deceased. (Sec. 50, Rule
123). And the court, in view of such contradictory testimony
may use its own visual sense, and decide in the face of the
document, whether the will submitted to it has indeed been
written by the testator.
Taking all the above circumstances together, we reach the
conclusion that the execution and the contents of a lost or
destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such will.
At this point, before proceeding further, it might be
convenient to explain why, unlike holographic wills, ordinary
wills may be proved by testimonial evidence when lost or
destroyed. The difference lies in the nature of the wills. In
the first, the only guarantee of authenticity is the handwriting
itself; in the second, the testimony of the subscribing or
instrumental witnesses (and of the notary, now). The loss of
the holographic will entails the loss of the only medium of
proof; if the ordinary will is lost, the subscribing witnesses
are available to authenticate.
In the case of ordinary wills, it is quite hard to convince three
witnesses (four with the notary) deliberately to lie. And then
their lies could be checked and exposed, their whereabouts
and acts on the particular day, the likelihood that they would
be called by the testator, their intimacy with the testator, etc.
And if they were intimates or trusted friends of the testator
they are not likely to lend themselves to any fraudulent
scheme to distort his wishes. Last but not least, they can not
receive anything on account of the will.
Whereas in the case of holographic wills, if oral testimony
were admissible 9 only one man could engineer the whole
fraud this way: after making a clever or passable imitation of
the handwriting and signature of the deceased, he may
contrive to let three honest and credible witnesses see and
read the forgery; and the latter, having no interest, could
easily fall for it, and in court they would in all good faith
affirm its genuineness and authenticity. The will having been
lost the forger may have purposely destroyed it in an
"accident" the oppositors have no way to expose the trick
and the error, because the document itself is not at hand.
And considering that the holographic will may consist of two
or three pages, and only one of them need be signed, the
substitution of the unsigned pages, which may be the most
important ones, may go undetected.
If testimonial evidence of holographic wills be permitted, one
more objectionable feature feasibility of forgery would
be added to the several objections to this kind of wills listed
by Castan, Sanchez Roman and Valverde and other wellknown Spanish Commentators and teachers of Civil Law. 10
One more fundamental difference: in the case of a lost will,
the three subscribing witnesses would be testifying to a fact
which they saw, namely the act of the testator of subscribing
the will; whereas in the case of a lost holographic will, the
witnesses would testify as to their opinion of the handwriting
which they allegedly saw, an opinion which can not be
tested in court, nor directly contradicted by the oppositors,
because the handwriting itself is not at hand.
Turning now to the evidence presented by the petitioner, we
find ourselves sharing the trial judge's disbelief. In addition to
the dubious circumstances described in the appealed
decision, we find it hard to believe that the deceased should

show her will precisely to relatives who had received nothing

from it: Socorro Olarte and Primitivo Reyes. These could
pester her into amending her will to give them a share, or
threaten to reveal its execution to her husband Ildefonso
Yap. And this leads to another point: if she wanted so much
to conceal the will from her husband, why did she not entrust
it to her beneficiaries? Opportunity to do so was not lacking:
for instance, her husband's trip to Davao, a few days after
the alleged execution of the will.
In fine, even if oral testimony were admissible to establish
and probate a lost holographic will, we think the evidence
submitted by herein petitioner is so tainted with
improbabilities and inconsistencies that it fails to measure up
to that "clear and distinct" proof required by Rule 77, sec. 6.
11
Rodelas vs. Aranza
". . . On January 11, 1977, appellant filed a petition
with the Court of First Instance of Rizal for the
probate of the holographic will of Ricardo B.
Bonilla and the issuance of letters testamentary in
her favor. The petition, docketed as Sp. Proc. No.
8432, was opposed by the appellees Amparo
Aranza Bonilla, Wilferine Bonilla Treyes, Expedita
Bonilla Frias and Ephraim Bonilla on the following
grounds:
"(3)
The alleged holographic will
itself, and not an alleged copy thereof,
must be produced, otherwise it would
produce no effect, as held in Gan v.
Yap, 104 Phil. 509; and
The only question here is whether a holographic will
which was lost or can not be found can be proved by
means of a photostatic copy. Pursuant to Article 811 of the
Civil Code, probate of holographic wills is the allowance of
the will by the court after its due execution has been proved.
The probate may be uncontested or not. If uncontested, at
least one identifying witness is required and, if no witness is
available, experts may be resorted to. If contested, at least
three identifying witnesses are required. However, if the
holographic will has been lost or destroyed and no other
copy is available, the will can not be probated because the
best and only evidence is the handwriting of the testator in
said will. It is necessary that there be a comparison between
sample handwritten statements of the testator and the
handwritten will. But, a photostatic copy or xerox copy of the
holographic will may be allowed because comparison can be
made with the standard writings of the testator. In the case
of Gan vs. Yap, 104 Phil. 509, the Court ruled that "the
execution and the contents of a lost or destroyed
holographic will may not be proved by the bare testimony of
witnesses who have seen and/or read such will. The will
itself must be presented; otherwise, it shall produce no
effect. The law regards the document itself as material
proof of authenticity." But, in Footnote 8 of said decision, it
says that "Perhaps it may be proved by a photographic or
photostatic copy. Even a mimeographed or carbon copy; or
by other similar means, if any, whereby the authenticity of
the handwriting of the deceased may be exhibited and
tested before the probate court." Evidently, the photostatic or
xerox copy of the lost or destroyed holographic will may be
admitted because then the authenticity of the handwriting of
the deceased can be determined by the probate court.
WHEREFORE, the order of the lower court dated October 3,
1979, denying appellant's motion for reconsideration dated
August 9, 1979, of the Order dated July 23, 1979, dismissing
her petition to approve the will of the late Ricardo B. Bonilla,
is hereby SET ASIDE.
Azaola vs. Singson
"Briefly speaking, the following facts were
established by the petitioner; that on September 9,
1957, Fortunata S. Vda. de Yance died at 13
Luskot, Quezon City, known to be the last
residence of said testatrix; that Francisco Azaola,
petitioner herein for probate of the holographic
will, submitted the said holographic will (Exh. C)
whereby Maria Milagros Azaola was made the
sole heir as against the nephew of the deceased
Cesario Singson; that witness Francisco Azaola
testified that he saw the holographic will (Exh. C)
one month, more or less, before the death of the
testatrix, as the same was handed to him and his
wife; that the witness testified also that he
recognized all the signatures appearing in the
holographic will (Exh. C) as the handwriting of the
testatrix and to reinforce said statement, witness
presented the mortgage (Exh. E), the special
power of attorney (Exh. F), and the general power
of attorney (Exh. F-1), besides the deeds of sale
(Exhs. G and G-1) including an affidavit (Exh. G2), and that there were further exhibited in court
two residence certificates (Exhs. H and H-1) to
show the signatures of the testatrix, for
comparison purposes; that said witness, Azaola,

36

testified that the penmanship appearing in the

aforesaid documentary evidence is in the
handwriting of the testatrix as well as the
signatures appearing therein are the signatures of
the testatrix; that said witness, in answer to a
question of his counsel admitted that the
holographic will was handed to him by the
testatrix, "apparently it must have been written by
her" (t.s.n., p. 11). However, on page 16 on the
same transcript of the stenographic notes, when
the same witness was asked by counsel if he was
familiar with the penmanship and handwriting of
the deceased Fortunata Vda. de Yance, he
answered positively in the affirmative and when he
was asked again whether the penmanship
referred to in the previous answer as appearing in
the holographic will (Exh. C) was hers (testatrix'),
he answered, "I would definitely say it is hers"; that
it was also established in the proceedings that the
assessed value of the property of the deceased in
Luskot, Quezon City, is in the amount of
P7,000.00."
The opposition to the probate was on the ground that (1) the
execution of the will was procured by undue and improper
pressure and influence on the part of the petitioner and his
wife, and (2) that the testatrix did not seriously intend the
instrument to be her last will, and that the same was actually
written either on the 5th or 6th day of August 1957 and not
on November 20, 1956 as appears on the will.
The probate was denied on the ground that under Article
811 of the Civil Code, the proponent must present three
witnesses who could declare that the will and the signature
are in the writing of the testatrix, the probate being
contested; and because the lone witness presented by the
proponent "did not prove sufficiently that the body of the will
was written in the handwriting of the testatrix."
The proponent appealed, urging: first, that he was not bound
to produce more than one witness because the will's
authenticity was not questioned; and second, that Article 811
does not mandatorily require the production of three
witnesses to identify the handwriting and signature of a
holographic will, even if its authenticity should be denied by
the adverse party.
We agree with the appellant that since the authenticity of the
will was not contested, he was not required to produce more
than one witness; but even if the genuineness of the
holographic will were contested, we are of the opinion that
Article 811 of our present Civil Code can not be interpreted
as to require the compulsory presentation of three witnesses
to identify the handwriting of the testator, under penalty of
having the probate denied. Since no witness may have been
present at the execution of a holographic will, none being
required by law (Art. 810, new Civil Code), it becomes
obvious that the existence of witnesses possessing the
requisite qualifications is a matter beyond the control of the
proponent. For it is not merely a question of finding and
producing any three witnesses; they must be witnesses "who
know the handwriting and signature of the testator" and who
can declare (truthfully, of course, even if the law does not so
express) "that the will and the signature are in the
handwriting of the testator". There may be no available
witness acquainted with the testator's hand; or even if so
familiarized, the witnesses may be unwilling to give a
positive opinion. Compliance with the rule of paragraph 1 of
Article 811 may thus become an impossibility.
As can be seen, the law foresees the possibility that no
qualified witness may be found (or what amounts to the
same thing, that no competent witness may be willing to
testify to the authenticity of the will), and provides for resort
to expert evidence to supply the deficiency.
It may be true that the rule of this article (requiring that three
witnesses be presented if the will is contested and only one
if no contest is had) was derived from the rule established
for ordinary testaments (cf. Cabang vs. Delfinado, 45 Phil.,
291; Tolentino vs. Francisco, 57 Phil. 742). But it can not be
ignored that the requirement can be considered mandatory
only in the case of ordinary testaments, precisely because
the presence of at least three witnesses at the execution of
ordinary wills is made by law essential to their validity (Art.
805). Where the will is holographic, no witness need be
present (Art. 10), and the rule requiring production of three
witnesses must be deemed merely permissive if absurd
results are to be avoided.
Again, under Article 811, the resort to expert evidence is
conditioned by the words "if the Court deem it necessary",
which reveal that what the law deems essential is that the
Court should be convinced of the will's authenticity. Where
the prescribed number of witnesses is produced and the
court is convinced by their testimony that the will is genuine,
it may consider it unnecessary to call for expert evidence.
On the other hand, if no competent witness is available, or
none of those produced is convincing, the Court may still,

and in fact it should, resort to handwriting experts. The duty

of the court, in fine, is to exhaust all available lines of inquiry,
for the state is as much interested as the proponent that the
true intention of the testator be carried into effect.
And because the law leaves it to the trial court to decide if
experts are still needed, no unfavourable inference can be
drawn from a party's failure to offer expert evidence, until
and unless the court expresses dissatisfaction with the
testimony of the lay witnesses. Our conclusion is that the
rule of the first paragraph of Article 811 of the Civil Code is
merely directory and is not mandatory.
Considering, however, that this is the first occasion in which
this Court has been called upon to construe the import of
said article, the interest of justice would be better served, in
our opinion, by giving the parties ample opportunity to
adduce additional evidence, including expert witnesses,
should the Court deem them necessary. In view of the
foregoing, the decision appealed from is set aside, and the
records ordered remanded to the Court of origin, with
instructions to hold a new trial in conformity with this opinion.
But evidence already on record shall not be retaken. No
costs.
Codoy vs. Calugay
On April 6, 1990, Evangeline Calugay, Josephine Salcedo
and Eufemia Patigas, devisees and legatees of the
holographic will of the deceased Matilde Seo Vda. de
Ramonal, filed with the Regional Trial Court, Misamis
Oriental, Branch 18, a petition 3 for probate of the
holographic will of the deceased, who died on January 16,
1990.
In the petition, respondents claimed that the deceased
Matilde Seo Vda. de Ramonal, was of sound and disposing
mind when she executed the will on August 30, 1978, that
there was no fraud, undue influence, and duress employed
in the person of the testator, and the will was written
voluntarily. The assessed value of the decedents property,
including all real and personal property was about
P400,000.00, at the time of her death. 4
On June 28, 1990, Eugenia Ramonal Codoy and Manuel
Ramonal filed an opposition 5 to the petition for probate,
alleging that the holographic will was a forgery and that the
same is even illegible. This gives an impression that a "third
hand" of an interested party other than the "true hand" of
Matilde Seo Vda. de Ramonal executed the holographic
will.
Petitioners argued that the repeated dates incorporated or
appearing on the will after every disposition is out of the
ordinary. If the deceased was the one who executed the will,
and was not forced, the dates and the signature should
appear at the bottom after the dispositions, as regularly done
and not after every disposition. And assuming that the
holographic will is in the handwriting of the deceased, it was
procured by undue and improper pressure and influence on
the part of the beneficiaries, or through fraud and trickery.
On December 12, 1990, respondents filed a notice of
appeal, 8 and in support of their appeal, the respondents
once again reiterated the testimony of the following
witnesses, namely: (1) Augusto Neri; (2) Generosa Senon;
(3) Matilde Ramonal Binanay; (4) Teresita Vedad; (5) Fiscal
Rodolfo Waga; and (6) Evangeline Calugay.
According to the Court of Appeals, Evangeline Calugay,
Matilde Ramonal Binanay and other witnesses definitely and
in no uncertain terms testified that the handwriting and
signature in the holographic will were those of the testator
herself.Thus, upon the unrebutted testimony of appellant
Evangeline Calugay and witness Matilde Ramonal Binanay,
the Court of Appeals sustained the authenticity of the
holographic will and the handwriting and signature therein,
and allowed the will to probate.
In this petition, the petitioners ask whether the provisions of
Article 811 of the Civil Code are permissive or mandatory.
The article provides, as a requirement for the probate of a
contested holographic will, that at least three witnesses
explicitly declare that the signature in the will is the genuine
signature of the testator.
We are convinced, based on the language used, that Article
811 of the Civil Code is mandatory. The word "shall"
connotes a mandatory order. We have ruled that "shall" in a
statute commonly denotes an imperative obligation and is
inconsistent with the idea of discretion and that the
presumption is that the word "shall," when used in a statute
is mandatory." 11
Laws are enacted to achieve a goal intended and to guide
against an evil or mischief that aims to prevent. In the case
at bar, the goal to achieve is to give effect to the wishes of
the deceased and the evil to be prevented is the possibility
that unscrupulous individuals who for their benefit will
employ means to defeat the wishes of the testator.
What Ms. Binanay saw were pre-prepared receipts and
letters of the deceased, which she either mailed or gave to
her tenants. She did not declare that she saw the deceased
sign a document or write a note. In her testimony it was
also evident that Ms. Binanay kept the fact about the will
from petitioners, the legally adopted children of the

37

deceased. Such actions put in issue her motive of keeping

the will a secret to petitioners and revealing it only after the
death of Matilde Seo Vda. de Ramonal. So, the only
reason that Evangeline can give as to why she was familiar
with the handwriting of the deceased was because she lived
with her since birth. She never declared that she saw the
deceased write a note or sign a document.
From the testimonies of these witnesses, the Court of
Appeals allowed the will to probate and disregard the
requirement of three witnesses in case of contested
holographic will, citing the decision in Azaola vs. Singson, 31
ruling that the requirement is merely directory and not
mandatory. In the case of Ajero vs. Court of Appeals, 32
we said that "the object of the solemnities surrounding the
execution of wills is to close the door against bad faith and
fraud, to avoid substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore, the laws on
this subject should be interpreted in such a way as to attain
these primordial ends. But, on the other hand, also one must
not lose sight of the fact that it is not the object of the law to
restrain and curtail the exercise of the right to make a will."
However, we cannot eliminate the possibility of a false
document being adjudged as the will of the testator, which is
why if the holographic will is contested, that law requires
three witnesses to declare that the will was in the
handwriting of the deceased. The will was found not in the
personal belongings of the deceased but with one of the
respondents, who kept it even before the death of the
deceased. In the testimony of Ms. Binanay, she revealed
that the will was in her possession as early as 1985, or five
years before the death of the deceased.
There was no opportunity for an expert to compare the
signature and the handwriting of the deceased with other
documents signed and executed by her during her lifetime.
The only chance at comparison was during the crossexamination of Ms. Binanay when the lawyer of petitioners
asked Ms. Binanay to compare the documents which
contained the signature of the deceased with that of the
holographic will and she is not a handwriting expert. Even
the former lawyer of the deceased expressed doubts as to
the authenticity of the signature in the holographic will.
A visual examination of the holographic will convince us that
the strokes are different when compared with other
documents written by the testator. The signature of the
testator in some of the disposition is not readable. There
were uneven strokes, retracing and erasures on the will.
Comparing the signature in the holographic will dated
August 30, 1978, 33 and the signatures in several
documents such as the application letter for pasture permit
dated December 30, 1980, 34 and a letter dated June 16,
1978, 35 the strokes are different. In the letters, there are
continuous flows of the strokes, evidencing that there is no
hesitation in writing unlike that of the holographic will. We,
therefore, cannot be certain that the holographic will was in
the handwriting by the deceased.
IN VIEW WHEREOF, the decision appealed from is SET
ASIDE. The records are ordered remanded to the court of
origin with instructions to allow petitioners to adduce
evidence in support of their opposition to the probate of the
holographic will of the deceased Matilde Seo Vda. de
Ramonal.
E. Effect of Allowance of wills
The matter of due execution of the will and capacity of the
testator acquire the character of res judicata and cannot
again be brought into question, all judicial questions in
connection therewith being for once and forever closed.
The probate court does not look upon the intrinsic validity of
the will. However, it was held that the trial court may pass
upon the intrinsic validity even before its formal validity had
been established. Otherwise, the probate of the will might
become an idle ceremony if on its face it appears intrinsically
void. Where practical considerations demand that the
intrinsic validity of the will be passed upon even before
probated; the court should meet the issue.
Gallanosa vs. Arcangel
The case involves the sixty-one parcels of land in Sorsogon
left by Florentino Hitosis, with an estimated value of
P50,000, and claims for damages exceeding one million
pesos.
On June 24, 1939 a petition for the probate of his will was
filed in the Court of First Instance of Sorsogon (Special
Proceeding No. 3171). The notice of hearing was duly
published In that will. Florentino bequeathed his one-half
share in the conjugal estate to his second wife, Tecla
Dollentas, and, should Tecla predecease him, as was the
case, his one-half share would be assigned to the spouses
Pedro Gallanosa and Corazon Grecia, the reason being that
Pedro, Tecla's son by her first marriage, grew up under the
care of Florentino: he had treated Pedro as his foster child,
and Pedro has rendered services to Florentino and Tecla.
Florentino likewise bequeathed his separate properties
consisting of three parcels of abaca land and parcel of
riceland to his protege (sasacuyang ataman) Adolfo
Fortajada, a minor.

On October 24, 1941, the testamentary heirs, the Gallanosa

spouses and Adolfo Fortajada, submitted a project of
partition covering sixty-one parcels of land located in various
parts of Sorsogon, large cattle and several pieces of
personal property which were distributed in accordance with
Florentino's will. The heirs assumed the obligations of the
estate amounting to P7,129.27 in the portion of P2,376.42
for Adolfo Fortajada and P4,752.85 for the Gallanosa
spouses. The project of partition was approved by Judge
Doroteo Amador in his order of March 13, 1943, thus
confirming the heirs' possession of their respective shares.
The testator's legal heirs did not appeal from the decree of
probate and from the order of partition and distribution.
On February 20, 1952, Leon Hitosis and the heirs of
Florentino's deceased brothers and sisters instituted an
action in the Court of First Instance of Sorsogon against
Pedro Gallanosa for the recovery of the said sixty-one
parcels of land. They alleged that they, by themselves or
through their predecessors-in-interest, had been in
continuous possession of those lands en concepto de dueo
and that Gallanosa entered those lands in 1951 and
asserted ownership over the lands. They prayed that they be
declared the owners of the lands and that they be restored
to the possession thereof. They also claimed damages (Civil
Case No. 696).
The plaintiffs did not appeal from that order of dismissal
which should have set the matter at rest. But the same
plaintiffs or oppositors to the probate of the will, and their
heirs, with a persistence befitting a more meritorious case,
filed on September 21, 1967, or fifteen years after the
dismissal of Civil Case No. 696 and twenty-eight years after
the probate of the will, another action in the same court
against the Gallanosa spouses and Adolfo Fortajada for the
"annulment" of the will of Florentino Hitosis and for the
recovery of the same sixty-one parcels of land. They prayed
for the appointment of a receiver.
The petitioners or the defendants below contend in this
certiorari case that the lower court has no jurisdiction to set
aside the 1939 decree of probate and the 1952 order of
dismissal in Civil Case No. 696 and that it acted with grave
abuse of discretion in not dismissing private respondents'
1967 complaint.
The issue is whether, under the facts set forth above, the
private respondents have a cause of action for the
"annulment" of the will of Florentino Hitosis and for the
recovery of the sixty-one parcels of land adjudicated under
that will to the petitioners. We hold that the lower court
committed a grave abuse of discretion in reconsideration its
order of dismissal and in ignoring the 1939 testamentary
case and the 1952 Civil Case No. 696 which is the same as
the instant 1967 case.
What the plaintiffs seek is the "annulment" of a last will and
testament duly probated in 1939 by the lower court itself.
The proceeding is coupled with an action to recover the
lands adjudicated to the defendants by the same court in
1943 by virtue of the probated will, which action is a
resuscitation of the complaint of the same parties that the
same court dismissed in 1952. It is evident from the
allegations of the complaint and from defendants' motion to
dismiss that plaintiffs' 1967 action is barred by res judicata a
double-barrelled defense, and by prescription, acquisitive
and extinctive, or by what are known in the jus civile and the
jus gentium as usucapio, longi temporis possesio and
praescriptio (See Ramos vs. Ramos, L-19872, December 3,
1974, 61 SCRA 284).
We say that the defense of res judicata, as a ground for the
dismissal of plaintiffs' 1967 complaint, is a two-pronged
defense because (1) the 1939 and 1943 decrees of probate
and distribution in Special Proceeding No. 3171 and (2) the
1952 order of dismissal in Civil Case No. 696 of the lower
court constitute bars by former judgment
The 1939 decree of probate is conclusive as to the due
execution or formal validity of the will. That means that the
testator was of sound and disposing mind at the time when
he executed the will and was not acting under duress,
menace, fraud, or undue influence; that the will was signed
by him in the presence of the required number of witnesses,
and that the will is genuine and is not a forgery. Accordingly,
these facts cannot again be questioned in a subsequent
proceeding, not even in a criminal action for the forgery of
the will. After the finality of the allowance of a will, the issue
as to the voluntariness of its execution cannot be raised
anymore
It is a fundamental concept in the organization of every jural
system, a principle of public policy, that, at the risk of
occasional errors, judgments of courts should become final
at some definite date fixed by law. Interest rei publicae ut
finis sit litum. The very object for which the courts were
constituted was to put an end to controversies. After the
period for seeking relief from a final order or judgment under
Rule 38 of the Rules of Court has expired, a final judgment
or order can be set aside only on the grounds of (a) lack of
jurisdiction or lack of due process of law or (b) that the
judgment was obtained by means of extrinsic or collateral
fraud. In the latter case, the period for annulling the
judgment is four years from the discovery of the fraud
That ruling is a glaring error Article 1410 cannot possibly
apply to last wills and testaments. The trial court and

38

plaintiffs' counsel relied upon the case of Dingle vs.

Guillermo, 48 O.G. 4410, allegedly decided by this Court,
which cited the ruling in Tipton vs. Velasco, 6 Phil. 67, that
mere lapse of time cannot give efficacy to void contracts, a
ruling elevated to the category of a codal provision in article
1410. The Dingle case was decided by the Court of Appeals.
Even the trial court did not take pains to verify the
misrepresentation of plaintiffs' counsel that the Dingle case
was decided by this Court. An elementary knowledge of civil
law could have alerted the trial court to the egregious error
of plaintiffs' counsel in arguing that article 1410 applies to
wills.
Roberts vs. Leonidas
The question in this case is whether a petition for allowance
of wills and to annul a partition, approved in an intestate
proceeding by Branch 20 of the Manila Court of First
Instance, can be entertained by its Branch 38 (after a
probate in the Utah district court).
Antecedents. Edward M. Grimm, an American resident of
Manila, died at 78 in the Makati Medical Center on
November 27, 1977. He was survived by his second wife,
Maxine Tate Grimm, and their two children, named Edward
Miller Grimm II (Pete) and Linda Grimm, and by Juanita
Grimm Morris and Ethel Grimm Roberts (McFadden), his two
children by a first marriage which ended in divorce (SubAnnexes A and B, pp. 36-47, Rollo).
He executed on January 23, 1959 two wills in San
Francisco, California. One will disposed of his Philippine
estate which he described as conjugal property of himself
and his second wife. The second will disposed of his estate
outside the Philippines.
In both wills, the second wife and two children were favored.
The two children of the first marriage were given their
legitimes in the will disposing of the estate situated in this
country. In the will dealing with his property outside this
country, the testator said: "I purposely have made no
provision in this will for my daughter, Juanita Grimm Morris,
or my daughter, Elsa Grimm McFadden (Ethel Grimm
Roberts), because I have provided for each of them in a
separate will disposing of my Philippine property." (First
clause, pp. 43-47, Rollo).
The two wills and a codicil were presented for probate by
Maxine Tate Grimm and E. La Var Tate on March 7, 1978 in
Probate No. 3720 of the Third Judicial District Court of
Tooele County, Utah. Juanita Grimm Morris of Cupertino,
California and Mrs. Roberts of 15 C. Benitez Street,
Horseshoe Village, Quezon City were notified of the probate
proceeding
Two weeks later, or on April 25, 1978, Maxine and her two
children Linda and Pete, as the first parties, and Ethel,
Juanita Grimm Morris and their mother Juanita Kegley
Grimm, as the second parties, with knowledge of the
intestate proceeding in Manila, entered into a compromise
agreement in Utah regarding the estate. It was signed by
David E. Salisbury and Donald B. Holbrook, as lawyers of
the parties, by Pete and Linda and the attorney-in-fact of
Maxine and by the attorney-in-fact of Ethel, Juanita Grimm
Morris and Juanita Kegley Grimm.
In that agreement, it was stipulated that Maxine, Pete and
Ethel would be designated as personal representatives
(administrators) of Grimm's Philippine estate (par. 2). It was
also stipulated that Maxine's one-half conjugal share in the
estate should be reserved for her and that would not be less
than $1,500,000 plus the homes in Utah and Santa Mesa,
Manila (par. 4). The agreement indicated the computation of
the "net distributable estate". It recognized that the estate
was liable to pay the fees of the Angara law firm
Acting on the declaration of heirs and project of partition
signed and filed by lawyers Limqueco and Macaraeg (not
signed by Maxine and her two children), Judge Conrado M.
Molina in his order of July 27, 1979 adjudicated to Maxine
one-half (4/8) of the decedent's Philippine estate and oneeighth (1/8) each to his four children or 12-1/2% (pp. 140142, Record). No mention at all was made of the will in that
order.
Petition to annul partition and testate proceeding No.
134559. On September 8, 1980, Rogelio A. Vinluan of the
Angara law firm, in behalf of Maxine, Pete and Linda, filed in
Branch 38 of the lower court a petition praying for the
probate of Grimm's two wills (already probated in Utah), that
the 1979 partition approved by the intestate court be set
aside and the letters of administration revoked, that Maxine
be appointed executrix and that Ethel and Juanita Morris be
ordered to account for the properties received by them and
to return the same to Maxine (pp. 25-35, Rollo).
Grimm's second wife and two children alleged that they were
defraud due to the machinations of the Roberts spouses,
that the 1978 Utah compromise agreement was illegal, that

the intestate proceeding is void because Grimm died testate

and that the partition was contrary to the decedent's wills.
Ethel filed a motion to dismiss the petition. Judge Leonidas
denied it for lack of merit in his order of October 27, 1980.
Ethel then filed a petition for certiorari and prohibition in this
Court, praying that the testate proceeding be dismissed, or,
alternatively that the two proceedings be consolidated and
heard in Branch 20 and that the matter of the annulment of
the Utah compromise agreement be heard prior to the
petition for probate (pp. 22-23, Rollo).
Ruling. We hold that respondent judge did not commit
any grave abuse of discretion, amounting to lack of
jurisdiction, in denying Ethel's motion to dismiss.
A testate proceeding is proper in this case because Grimm
died with two wills and "no will shall pass either real or
personal property unless it is proved and allowed" (Art. 838,
Civil Code; sec. 1, Rule 75, Rules of Court). The probate of
the will is mandatory (Guevara vs. Guevara, 74 Phil. 479
and 98 Phil. 249; Baluyot vs. Pao, L-42088, May 7, 1976,
71 SCRA 86). It is anomalous that the estate of a person
who died testate should be settled in an intestate
proceeding. Therefore, the intestate case should be
consolidated with the testate proceeding and the judge
assigned to the testate proceeding should continue hearing
the two cases.
Ethel may file within twenty days from notice of the finality of
this judgment an opposition and answer to the petition
unless she considers her motion to dismiss and other
pleadings sufficient for the purpose. Juanita G. Morris, who
appeared in the intestate case, should be served with copies
of orders, notices and other papers in the testate case.
WHEREFORE, the petition is dismissed. The temporary
restraining order is dissolved. No costs.
Nepomuceno vs. CA
Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left
a last Will and Testament duly signed by him at the end of
the Will on page three and on the left margin of pages 1, 2
and 4 thereof in the presence of Celestina Alejandro, Myrna
C. Cortez, and Leandro Leao, who in turn, affixed their
signatures below the attestation clause and on the left
margin of pages 1, 2 and 4 of the Will in the presence of the
testator and of each other and the Notary Public. The Will
was acknowledged before the Notary Public Romeo
Escareal by the testator and his three attesting witnesses.
In the said Will, the testator named and appointed herein
petitioner Sofia J. Nepomuceno as his sole and only
executor of his estate. It is clearly stated in the Will that the
testator was legally married to a certain Rufina Gomez by
whom he had two legitimate children, Oscar and Carmelita,
but since 1952, he had been estranged from his lawfully
wedded wife and had been living with petitioner as husband
and wife. In fact, on December 5, 1952, the testator Martin
Jugo and the petitioner herein, Sofia J. Nepomuceno were
married in Victoria, Tarlac before the Justice of the Peace.
The testator devised to his forced heirs, namely, his legal
wife Rufina Gomez and his children Oscar and Carmelita his
entire estate and the free portion thereof to herein petitioner.
On August 21, 1974, the petitioner filed a petition for the
probate of the last Will and Testament of the deceased
Martin Jugo in the Court of First Instance of Rizal, Branch
XXXIV, Caloocan City and asked for the issuance to her of
letters testamentary. On May 13, 1975, the legal wife of the
testator, Rufina Gomez and her children filed an opposition
alleging inter alia that the execution of the Will was procured
by undue and improper influence on the part of the
petitioner; that at the time of the execution of the Will, the
testator was already very sick and that petitioner having
admitted her living in concubinage with the testator, she is
wanting in integrity and thus letters testamentary should not
be issued to her.
On January 6, 1976, the lower court denied the probate of
the Will on the ground that as the testator admitted in his Will
to cohabiting with the petitioner from December 1952 until
his death on July 16, 1974, the Will's admission to probate
will be an idle exercise because on the face of the Will, the
invalidity of its intrinsic provisions is evident.
On June 2, 1982, the respondent court set aside the
decision of the Court of First Instance of Rizal denying the
probate of the Will. The respondent court declared the Will to
be valid except that the devise in favor of the petitioner is
null and void pursuant to Article 739 in relation with Article
1028 of the Civil Code of the Philippines.
The main issue raised by the petitioner is whether or not the
respondent court acted in excess of its jurisdiction when
after declaring the last Will and Testament of the deceased
Martin Jugo validly drawn, it went on to pass upon the
intrinsic validity of the testamentary provision in favor of
herein petitioner.

39

The petitioner submits that the validity of the testamentary

provision in her favor cannot be passed upon and decided in
the probate proceedings but in some other proceedings
because the only purpose of the probate of a Will is to
establish conclusively as against everyone that a Will was
executed with the formalities required by law and that the
testator has the mental capacity to execute the same. The
petitioner further contends that even if the provisions of
paragraph 1 of Article 739 of the Civil Code of the
Philippines were applicable, the declaration of its nullity
could only be made by the proper court in a separate action
brought by the legal wife for the specific purpose of obtaining
a declaration of the nullity of the testamentary provision in
the Will in favor of the person with whom the testator was
allegedly guilty of adultery or concubinage.
We agree with the respondents. The respondent court acted
within its jurisdiction when after declaring the Will to be
validly drawn, it went on to pass upon the intrinsic validity of
the Will and declared the devise in favor of the petitioner null
and void. The general rule is that in probate proceedings,
the court's area of inquiry is limited to an examination and
resolution of the extrinsic validity of the Will.
"Art IV. That since 1952, I have been
living, as man and wife, with one Sofia
J. Nepomuceno, whom I declare and
avow to be entitled to may love and
affection, for all the things which she
has done for me, now and in the past;
that while Sofia J. Nepomuceno has
with my full knowledge and consent, did
comport and represent myself as her
own husband, in truth and in fact, as
well as in the eyes of the law, I could not
bind her to me in the holy bonds of
matrimony
because
of
my
aforementioned previous marriage;"
The rule, however, is not inflexible and absolute. Given
exceptional circumstances, the probate court is not
powerless to do what the situation constrains it to do and
pass upon certain provisions of the Will.
In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court,
the testator instituted the petitioner as universal heir and
completely preterited her surviving forced heirs. A will of this
nature, no matter how valid it may appear extrinsically,
would be null and void. Separate or latter proceedings to
determine the intrinsic validity of the testamentary provisions
would be superfluous.
"We are of the opinion that in view of certain unusual
provisions of the will, which are of dubious legality, and
because of the motion to withdraw the petition for probate
(which the lower court assumed to have been filed with the
petitioner's authorization), the trial court acted correctly in
passing upon the will's intrinsic validity even before its formal
validity had been established. The probate of a will might
become an idle ceremony if on its face it appears to be
intrinsically void. Where practical considerations demand
that the intrinsic validity of the will be passed upon, even
before it is probated, the court should meet the issue
There appears to be no more dispute at this time over the
extrinsic validity of the Will. Both parties are agreed that the
Will of Martin Jugo was executed with all the formalities
required by law and that the testator had the mental capacity
to execute his Will. The petitioner states that she completely
agrees with the respondent court when in resolving the
question of whether or not the probate court correctly denied
the probate of Martin Jugo's last Will and Testament, The
only issue, therefore, is the jurisdiction of the respondent
court to declare the testamentary provision in favor of the
petitioner as null and void.
There is no question from the records about the fact of a
prior existing marriage when Martin Jugo executed his Will.
There is also no dispute that the petitioner and Mr. Jugo
lived together in an ostensible marital relationship for 22
years until his death. It is also a fact that on December 2,
1952, Martin Jugo and Sofia J. Nepomuceno contracted a
marriage before the Justice of the Peace of Victoria, Tarlac.
The man was then 51 years old while the woman was 48.
Nepomuceno now contends that she acted in good faith for
22 years in the belief that she was legally married to the
testator.
Moreover, the prohibition in Article 739 of the Civil Code is
against the making of a donation between persons who are
living in adultery or concubinage. It is the donation which
becomes void. The giver cannot give even assuming that the
recipient may receive. The very wordings of the Will
invalidate the legacy because the testator admitted he was
disposing the properties to a person with whom he had been
living in concubinage.
WHEREFORE, the petition is
DISMISSED for lack of merit.

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

witnesses in the presence of one another, in violation of the

requirement of the law.
In this jurisdiction, it is the observed rule that, where a
will is contested, the subscribing with are generally regarded
as the best qualified to testify on its due execution. However,
it is similarly recognized that for the testimony of such
witnesses to be entitled to full credit, it must be reasonable
and unbiased, and not overcome by competent evidence,
direct or circumstantial. 2 For it must be remembered that the
law does not simply require the presence of three
instrumental witnesses; it demands that the witnesses be
credible. 3
In connection with the issue under consideration, we
agree with the trial judge that the contradictions and
inconsistencies appearing in the testimonies of the
witnesses and the notary, pointed out by the oppositorsappellants (such as the weather condition at the time the will
was executed; the sequence of the signing by the witnesses;
and the length of time it took to complete the act), relate to
unimportant details of the impressions of the witnesses
about certain details which could have been affected by the
lapse of time and the treachery of human memory, and
which inconsistencies, by themselves, would not alter the
probative value of their testimonies on the due execution of
the will [cf. Peo. vs. Sigue, 86 Phil. 139-140 (3 years
interval)].
Not having heard Jiongco testify, this court is not in a
position to contradict the appreciation of the trial court that
the voice in the tape recording was not really that of Jiongco.
And considering that he denied that fact under oath, that the
tape recording was not supported by truly impartial
evidence, and was done without the knowledge of the
witness, we cannot see our way clear to rule that Jiongco
has been successfully impeached, and shown guilty of false
testimony. It would be dangerous to rule otherwise.
The second point that renders incredible the alleged
assertion of Jiongco in the tape recording, that he signed the
testament only in 1958 or 1959, is that in the Notarial
Registry of the notary, Gatdula, the ratification of the
testament appears among the entries for 1954, as well as in
the corresponding copies (Exhibit I) filed by him with
Bonifacio Sumulong, the employee in charge of the Notarial
Section of the Clerk of Court's office, who produced them at
the trial upon subpoena, and who testified to his having
searched for and found them in the vaults of the Clerk of
Court's office. No evidence exists that these documents
were not surrendered and filed at the Clerk of Court's office,
as required by law, and in the regular course of official duty.
Certainly, the notary could not have reported in 1954 what
did not happen until 1958.
In view of the evidence, we do not feel justified in
concluding that the trial court erred in accepting the
concordant testimony of the instrumental witnesses as
warranting the probate of the will in question, taking into
account the unexcelled opportunity of the court a quo to
observe the demeanor, and judge the credibility, of the
witness thereby. Furthermore, it would not be the first time in
this jurisdiction that a will has been admitted to probate even
if the instrumental witness testified contrary to the other two,
provided the court is satisfied, as in this case, that the will
was executed and attested in the manner provided by law
(Fernandez vs. Tantoco, 49 Phil. 380; Tolentino vs.
Francisco, 57 Phil. 742; Cuyugan vs. Baron, 69 Phil. 639;
Ramirez vs. Butte, 100 Phil 635). There is greater reason to
admit the will to probate where only the testimony of one
witness is subjected to serious, if unsuccessful attack.
Contestants further assail the admission to probate on
the ground that the execution of the will was tainted by fraud
and undue influence exerted by proponent on the testarix,
and affirm that it was error for the lower court to have
rejected their claim. Said the court in this regard (Record on
Appeal, page 87):
Before considering the correctness of these findings, it is
worthwhile to recall the basic principles on undue pressure
and influence as laid down by the jurisprudence of this
Court: that to be sufficient to avoid a will, the influence
exerted must be of a kind that so overpowers and
subjugates the mind of the testator as to destroy his
free agency and make him express the will of another
rather than his own (Coso vs. Fernandez Deza, 42 Phil.
596; Icasiano vs. Icasiano, L-18979, 30 June 1964; Teotico
vs. Del Val, L-18753, 26 March 196); that the contention that
a will was obtained by undue influence or improper pressure
cannot be sustained on mere conjecture or suspicion, as it is
enough that there was opportunity to exercise undue
influence, or a possibility that it may have been exercised
(Ozaeta vs. Cuartero, L-5597, 31 May 1956); that the
exercise of improper pressure and undue influence must be
supported by substantial evidence that it was actually
exercised (Ozatea vs. Cuartero, ante; Teotico vs. Del Val, L18753, 26 March 1965); that the burden is on the person
challenging the will to show that such influence was exerted
at the time of its execution (Teotico vs. Del Val, ante); that
mere general or reasonable influence is not sufficient to
invalidate a will (Coso vs. Fernandez Deza, ante); nor is
moderate and reasonable solicitation and entreaty
addressed to the testator (Barreto vs. Reyes, L-5831-31, 31
January 1956), or omission of relatives, not forced heirs,

evidence of undue influence (Bugnao vs. Ubag, 14 Phil. 163;

Pecson vs. Coronel, 45 Phil. 416).
Tested against these rulings, the circumstances
marshalled by the contestants certainly fail to establish
actual undue influence or improper pressure exercised on
the testarix by the proponent. Their main reliance is on the
assertion of the latter, in the course of his testimony, that the
deceased "did not like to sign anything unless I knew it"
(t.s.n., page 7, 27 January 1962), which does not amount to
proof that she would sign anything that proponent desired.
On the contrary, the evidence of contestants-appellants, that
proponent purchased a building in Manila for the testarix,
placed the title in his name, but caused the name "Catalina
de la Cruz" to be painted thereon in bold letters to mislead
the deceased, even if true, demonstrates that proponent's
influence was not such as to overpower to destroy the free
will of the testarix. Because if the mind of the latter were
really subjugated by him to the extent pictured by the
contestants, then proponent had no need to recourse to
the deception averred.lawphi1.et
Nor is the fact that it was proponent, and not the
testarix, who asked Dr. Sanchez to be one of the
instrumental witnesses evidence of such undue influence,
for the reason that the rheumetism of the testarix made it
difficult for her to look for all the witnesses. That she did not
resort to relatives or friends is, likewise explainable: it would
have meant the disclosure of the terms of her will to those
interested in her succession but who were not favored by
her, thereby exposing her to unpleasant importunity and
recriminations that an aged person would naturally seek to
avoid. The natural desire to keep the making of a will secret
can, likewise, account for the failure to probate the
testament during her lifetime.
We conclude that the trial court committed no error in
finding the appellant's evidence established at most grounds
for suspicion but fell far short of establishing actual exercise
of improper pressure or influence. Considering that testarix
considered proponent as her own son, to the extent that she
expressed no objection to his being made the sole heir of
her sister, Florentina Cruz, in derogation of her own rights,
we find nothing abnormalin her instituting proponent also as
her own beneficiary. As stated by the Court in the Knutson
case
The truth of the matter is that bequests and devises to those
in whom the testator has confidence and who have won his
affection are more likely to be free from undue influence that
bequests or devises to others. (In re Knutson's Will, 41 Pac.
2d 793). Appellants invoked presumption of undue influence
held to exist by American authorities where the beneficiary
participates in the drafting of execution of the will favoring
him; but since the will was prepared by Atty. Pascual,
although nephew of the proponent, we do not think the
presumption applies; for in the normal course of events, said
attorney would follow the instructions of the testatrix; and a
member of the bar in good standing may not be convicted of
unprofessional conduct, or of having conspired to falsify a
statement, except upon clear proof.
The charge of fraud, being premised on the existence
of undue influence, needs no separate discussion.
WHEREFORE, the decree of probate appealed from is
affirmed;
XI. LEGITIME
A. Concept.
Art. 886. Legitime is that part of the testator's property
which he cannot dispose of because the law has
reserved it for certain heirs who are, therefore, called
compulsory heirs. (806)

Three principal systems of distribution of hereditary property:

1. Absolute freedom of disposition
2. Total reservation
3. Partial reservation
T: Considering the customs and traditions of the Filipinos for
the sake of family solidarity, the present code preserved the
system of legitimes. However, changes have been made as
follows:
1. with respect to the amounts of that coumpulsory heirs
receive;
2. illegitimate children have been made compulsory heirs
though with a smaller legitime;
3. legitime of surviving spouse has been changed from a
mere usufruct to a full ownership.
4. eliminates the mejora which resulted in the increase of
both the legitime and the free portion

Thus, Justice JBL Reyes has this to say:

The increase of the legitime to as against the 1/3 in the
old code, and the suppression of the mejora, operate to limit
the freedom of choice of the testator to a greater extent than

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.

Illegitimate Children the FC abolished the distinctions in

the old civil code thus merging them to one group.
Social and humanitarian reasons justify this grant of rights.
These children are brought to the world without their fault
and under circumstances beyond their control. To leave
illegitimate children w/o successional rights not only weighs
them down with the moral handicap of their status but also
denies them the material assistance which they may need
after their parents death so as not to become social
burdens.
They are not required to be recognized by putative parents
but must only prove their filiation.
In the enforcement of this new right it is the death of the
parent which determines the right of the child to succeed
and not the birth of the latter.
Surviving Spouse there should be a valid marriage
between the deceased and the surviving spouse. Thus, the
following marriages has different effect on the capacity of the
widow or widower to succeed:
1.
null and void marriages such as
incestuous or bigamous ones. Except in cases of
bigamous marriages where two wives contract in
good faith with the same husband, both are
entitled to inherit equally from the deceased
husband.
2.
Voidable marriages entitle the widow/er
to legitime because there exists a valid marriage
until it is annulled. Thus, once annulled before
death of a spouse they are incapacitated to inherit.
However, pending the case of annulment and one
spouse dies the widow/er, nevertheless, inherits
the legitime because the marriage can no longer
be annulled after death of one.
3.
Legal separation of the spouses before
death entitles the widow/er the Legitime if he /she
is the innocent spouse. Unless reconciliation
occurred before the death of the spouse, the
survivor will inherit regardless of his guilt. In such
case that the decree is pending upon death of one
spouse then the decision should be awaited. The
fact that the innocent spouse instituted the legal
separation manifest his desire to not to allow the
guilty spouse to benefir fro his estate. The
accident of death should not defeat this purpose.
4.
Separation in fact by amicable
settlement does not incapacitate the guilty spouse
to inherit though there may be valid grounds for
legal separation there being no judicial decree, the
right of legitime is preserved.
Art. 902. The rights of illegitimate children set forth in
the preceding articles are transmitted upon their death
to their descendants, whether legitimate or illegitimate.
(843a)
The article allows the legitimate and illegitimate descendants
to represent the illegitimate child who predecease his own
parent. But the illegitimate children of of an illegitimate child
can represent the latter only in the rights set forth in the
preceding articles namely 894, 895, 896, 899, and 901.
The criticism on this article is that the law gives better rights
to the illegitimate children of an illegitimate child and not to
the illegitimate children of a legitimate child. This is absurd
since the position of the illegitimate children is no better than
or equal to that of the legitimate child. However, though
unfair to the latter this is an express provision of law which
we are confronted with. Thus, dura lex sed lex
Rosales vs. Rosales
In this Petition for Review of two (2) Orders of the Court of
First Instance of Cebu the question raised is whether the
widow whose husband predeceased his mother can inherit
from the latter, her mother-in-law.
In the course of the intestate proceedings, the trial court
issued an Order dated June 16, 1972 declaring the following
individuals the legal heirs of the deceased and prescribing
their respective share of the estate Fortunato T. Rosales
(husband) 1/4; Magna R. Acebes (daughter), 1/4;
Macikequerox Rosales, 1/4; and Antonio Rosales (son), 1/4.
This declaration was reiterated by the trial court in its Order
dated February 4, 1975. These Orders notwithstanding,
Irenea Rosales insisted in getting a share of the estate in her
capacity as the surviving spouse of the late Carterio
Rosales, son of the deceased, claiming that she is a
compulsory heir of her mother-in-law together with her son,
Macikequerox Rosales.
In sum, the petitioner poses two (2) questions for Our
resolution. First is a widow (surviving spouse) an intestate
heir of her mother-in-law? Second are the Orders of the
trial court which excluded the widow from getting a share of
the estate in question final as against the said widow?
Our answer to the first question is in the negative. Intestate
or legal heirs are classified into two (2) groups, namely,
those who inherit by their own right, and those who inherit by
the right of representation. 1 Restated, an intestate heir can
only inherit either by his own right, as in the order of
intestate succession provided for in the Civil Code, 2 or by

42

the right of representation provided for in Article 981 of the

same law.
There is no provision in the Civil Code which states that a
widow (surviving spouse) is an intestate heir of her motherin-law. The entire Code is devoid of any provision which
entitles her to inherit from her mother-in-law either by her
own right or by the right of representation. The provisions of
the Code which relate to the order of intestate succession
(Articles 978 to 1014) enumerate with meticulous exactitude
the intestate heirs of a decedent, with the State as the final
intestate heir. The conspicuous absence of a provision
which makes a daughter-in-law an intestate heir of the
deceased all the more confirms Our observation. If the
legislature intended to make the surviving spouse an
intestate heir of the parent-in-law, it would have so provided
in the Code.
The aforesaid provision of law 3 refers to the estate of the
deceased spouse in which case the surviving spouse (widow
or widower) is a compulsory heir. It does not apply to the
estate of a parent-in-law. Indeed, the surviving spouse is
considered a third person as regards the estate of the
parent-in-law
By the same token, the provision of Article 999 of the Civil
Code aforecited does not support petitioner's claim. A
careful examination of the said Article confirms that the
estate contemplated therein is the estate of the deceased
spouse. The estate which is the subject matter of the
intestate estate proceedings in this case is that of the
deceased Petra V. Rosales, the mother-in-law of the
petitioner. It is from the estate of Petra V. Rosales that
Macikequerox Rosales draws a share of the inheritance by
the right of representation as provided by Article 981 of the
Code.
Article 971 explicitly declares that Macikequerox Rosales is
called to succession by law because of his blood
relationship. He does not succeed his father, Carterio
Rosales (the person represented) who predeceased his
grandmother, Petra Rosales, but the latter whom his father
would have succeeded. Petitioner cannot assert the same
right of representation as she has no filiation by blood with
her mother-in-law.
Petitioner however contends that at the time of the death of
her husband Carterio Rosales he had an inchoate or
contingent right to the properties of Petra Rosales as
compulsory heir. Be that as it may, said right of her husband
was extinguished by his death that is why it is their son
Macikequerox Rosales who succeeded from Petra Rosales
by right of representation. He did not succeed from his
deceased father, Carterio Rosales.
On the basis of the foregoing observations and conclusions,
We find it unnecessary to pass upon the second question
posed by the petitioner. Accordingly, it is Our considered
opinion, and We so hold, that a surviving spouse is not an
intestate heir of his or her parent-in-law. WHEREFORE, in
view of the foregoing, the Petition is hereby DENIED for lack
of merit, with costs against the petitioner. Let this case be
remanded to the trial court for further proceedings.
C. Concurrence of compulsory heirs and their legitimes.
Art. 888. The legitime of legitimate children and
descendants consists of one-half of the hereditary
estate of the father and of the mother.
The latter may freely dispose of the remaining half,
subject to the rights of illegitimate children and of the
surviving spouse as hereinafter provided. (808a)
The enlargement of the legitime and the free portion to half
each is primarily the result of removal of the 1/3 mejora or
betterment in the old code where the testator disposes a
portion in favor of his legitimate children for their betterment
or reward. The NCC eliminated the mejora for the following
reasons:
1. The natural inequalities among children is but
imaginary and parent reward merely on better
qualities of one children
2. such reward may be effected by the father or
mother by disposing of part or all of the free half
3. the testator should have greater freedom to
dispoe of his estate by will
the supposed free portion is not always disposable by the
testator; it is expressly made subject to the rights of
illegitimate children and the surviving spouse. Only the
remainder thereafter shall be disposable, if there is any left.
Art. 889. The legitime of legitimate parents or
ascendants consists of one-half of the hereditary
estates of their children and descendants.
The children or descendants may freely dispose of the
other half, subject to the rights of illegitimate children
and of the surviving spouse as hereinafter provided.
(809a)
Art. 890. The legitime reserved for the legitimate parents
shall be divided between them equally; if one of the

parents should have died, the whole shall pass to the

survivor.
If the testator leaves neither father nor mother, but is
survived by ascendants of equal degree of the paternal
and maternal lines, the legitime shall be divided equally
between both lines. If the ascendants should be of
different degrees, it shall pertain entirely to the ones
nearest in degree of either line. (810)
Art. 892. If only one legitimate child or descendant of the
deceased survives, the widow or widower shall be
entitled to one-fourth of the hereditary estate. In case of
a legal separation, the surviving spouse may inherit if it
was the deceased who had given cause for the same.
If there are two or more legitimate children or
descendants, the surviving spouse shall be entitled to a
portion equal to the legitime of each of the legitimate
children or descendants.
In both cases, the legitime of the surviving spouse shall
be taken from the portion that can be freely disposed of
by the testator. (834a)
T: As to legitimate children, the law makes no distinction
whether of the previous marriage or the marriage dissolved
by death, hence, children in both cases are included
The surviving spouse concurring with legitimate children
receives only equal to the legitime of each of the legitimate
children and ascendants.
What if there are no legitimate children only
descendants? Does this mean that the spouse shall
receive equal to each descendants which may be even
more than the number of children of the deceased? NO.
whatever the number of descendants is immaterial the
divisor is still the number of children they represent because
the descendants only inherit by representation. Even if all
the children repudiate the legitime the divisor shall still be
the number of children. But if only some of the children
repudiate, the basis of computation should be the number of
children who accept the inheritance
If the surviving spouse receives a devise or legacy, is he
entitiled to the same in addition to his legitime?
T: if the testator gives a devise or legacy to the surviving
spouse, and there is enough of the portion subject to his
disposal which can cover such devise or legacy, then the
surviving spouse should get the devise or legacy in addition
to his legitime. To merge the devise or legacy in the legitime
would leave a part of the free portion undisposed of; this is
contrary to the policy of law against intestate succession and
against the express will of the testator. We believe,
therefore, that the devise or legacy should be first taken from
the remaining disposable portion, and if there is any excess
of the devise or legacy over the disposable portion, that
excess charged against or merged in the legitime of the
surviving spouse.
If however, the legitime of the surviving spouse is already
protected by the disposition giving him an amount or portion
equivalent to that legitime, then he cannot ask for more
unless, the testator provides it as addition to his legitime.
Art. 893. If the testator leaves no legitimate
descendants, but leaves legitimate ascendants, the
surviving spouse shall have a right to one-fourth of the
hereditary estate.
This fourth shall be taken from the free portion of the
estate. (836a)
Art. 894. If the testator leaves illegitimate children, the
surviving spouse shall be entitled to one-third of the
hereditary estate of the deceased and the illegitimate
children to another third. The remaining third shall be at
the free disposal of the testator. (n)
Art. 895. The legitime of each of the acknowledged
natural children and each of the natural children by legal
fiction shall consist of one-half of the legitime of each of
the legitimate children or descendants.
The legitime of an illegitimate child who is neither an
acknowledged natural, nor a natural child by legal
fiction, shall be equal in every case to four-fifths of the
legitime of an acknowledged natural child.
The legitime of the illegitimate children shall be taken
from the portion of the estate at the free disposal of the
testator, provided that in no case shall the total legitime
of such illegitimate children exceed that free portion,
and that the legitime of the surviving spouse must first
be fully satisfied. (840a)
Article repealed by Article 176 of the Family Code which
provides that the legitime of each illegitimate children is onehalf of that of legitimate child.
Ratio: the law rewards more the fruits of legal unions, thus,
giving preference and greater portion of the hereditary
estate. However, for humanitarian reasons the illegitimate
children should not be disregarded because they are just as
innocent and blameless as the legitimate children for being
born in this world beyond their control.
Limitations to the rights of Legitimate children:
1. filiation must be proved
2. their share comes only from the free portion
3. surviving spouse is preferred over them, the
legitme of the spouse is satisfied first
4. their share is susceptible of proportionate
reduction if their total legitimes exceeds the free
portion

43

Art. 896. Illegitimate children who may survive with

legitimate parents or ascendants of the deceased shall
be entitled to one-fourth of the hereditary estate to be
taken from the portion at the free disposal of the
testator. (841a)
Art. 897. When the widow or widower survives with
legitimate children or descendants, and acknowledged
natural children, or natural children by legal fiction,
such surviving spouse shall be entitled to a portion
equal to the legitime of each of the legitimate children
which must be taken from that part of the estate which
the testator can freely dispose of. (n)
Art. 898. If the widow or widower survives with
legitimate children or descendants, and with illegitimate
children other than acknowledged natural, or natural
children by legal fiction, the share of the surviving
spouse shall be the same as that provided in the
preceding article. (n)
The Family Code has already abolished the distinction
between natural and other illegitimate children placing them
under one category of illegitimate children.
Art. 899. When the widow or widower survives with
legitimate parents or ascendants and with illegitimate
children, such surviving spouse shall be entitled to oneeighth of the hereditary estate of the deceased which
must be taken from the free portion, and the illegitimate
children shall be entitled to one-fourth of the estate
which shall be taken also from the disposable portion.
The testator may freely dispose of the remaining oneeighth of the estate. (n)
T: This seems to be an unjustified discrimination against the
surviving spouse because he receives a graeter or an equal
amount when she survives with either the IC or the LP but
with both at the same time she only receives a measly 1/8 of
the estate. Undoubtedly, the code seems to have wanted to
save portion of the estate for the free disposal of the
deceased. This is not a sufficient justification for
discriminating against the surviving spouse and destroying
the balance between the legitimes, after vall, there are
instances in w/c the free portion is merely theoretical.
Art. 900. If the only survivor is the widow or widower,
she or he shall be entitled to one-half of the hereditary
estate of the deceased spouse, and the testator may
freely dispose of the other half. (837a)
If the marriage between the surviving spouse and the
testator was solemnized in articulo mortis, and the
testator died within three months from the time of the
marriage, the legitime of the surviving spouse as the
sole heir shall be one-third of the hereditary estate,
except when they have been living as husband and wife
for more than five years. In the latter case, the legitime
of the surviving spouse shall be that specified in the
preceding paragraph. (n)
Presupposes that the surviving spouse is the only
compulsory heir.
T: We believe that this rule will apply only when the
deceased is the spouse who was at the point of death at the
time of marriage; hence, it will not apply when the spouse
who was at the point of death at the time of marriage is the
one who survives, and the other is the one who dies w/in
three months after the marriage.
Ratio for the rule is the presumption that the marriage is
contracted exclusively for inheriting. However, this suspicion
is erased if the spouses had been living together as husband
and wife for at least five years on account of companionship
and affection for such length of time.
This distinction does not apply to intestacy
Art. 901. When the testator dies leaving illegitimate
children and no other compulsory heirs, such
illegitimate children shall have a right to one-half of the
hereditary estate of the deceased.
The other half shall be at the free disposal of the
testator. (842a)
Art. 903. The legitime of the parents who have an
illegitimate child, when such child leaves neither
legitimate descendants, nor a surviving spouse, nor
illegitimate children, is one-half of the hereditary estate
of such illegitimate child. If only legitimate or illegitimate
children are left, the parents are not entitled to any
legitime whatsoever. If only the widow or widower
survives with parents of the illegitimate child, the
legitime of the parents is one-fourth of the hereditary
estate of the child, and that of the surviving spouse also
one-fourth of the estate. (n)
It must be noted that in illegitimate filiation, the right to
succeed in the ascending line terminates with the parent of
the deceased illegitimate child. There is, therefore, no
reciprocity of successional reights between the illegitimate
grandparent and the illegitimate grandchild.
P.D. 603; Art. 39. Effects of Adoption. - The adoption
shall:
(1) Give to the adopted person the same rights
and duties as if he were a legitimate child of
the adopter: Provided, That an adopted child
cannot acquire Philippine citizenship by virtue
of such adoption:

(2) Dissolve the authority vested in the natural

parent or parents, except where the adopter is
the spouse of the surviving natural parent;
(3) Entitle the adopted person to use the
adopter's surname; and
(4) Make the adopted person a legal heir of the
adopter: Provided, That if the adopter is
survived by legitimate parents or ascendants
and by an adopted person, the latter shall not
have more successional rights than an
acknowledged natural child: Provided, further,
That any property received gratuitously by the
adopted from the adopter shall revert to the
adopter should the former predecease the
latter without legitimate issue unless the
adopted has, during his lifetime, alienated
such property: Provided, finally, That in the
last case, should the adopted leave no
property other than that received from the
adopter, and he is survived by illegitimate
issue or a spouse, such illegitimate issue
collectively or the spouse shall receive onefourth of such property; if the adopted is
survived by illegitimate issue and a spouse,
then the former collectively shall receive onefourth and the latter also one-fourth, the rest in
any case reverting to the adopter, observing in
the case of the illegitimate issue the proportion
provided for in Article 895 of the Civil Code.
The adopter shall not be a legal heir of the adopted
person, whose parents by nature shall inherit from him,
except that if the latter are both dead, the adopting
parent or parents take the place of the natural parents in
the line of succession, whether testate or interstate.
D. Restrictions regarding the legitime
Art. 904. The testator cannot deprive his compulsory
heirs of their legitime, except in cases expressly
specified by law.
Art. 872. The testator cannot impose any charge,
condition, or substitution whatsoever upon the legitimes
prescribed in this Code. Should he do so, the same shall
be considered as not imposed. (813a)
The legitime goes to the heir by operation of law and not by
the will of the testator; hence it cannot be subject to the
freedom of the latter to impose encumbrances, conditions
and substitutions. Any encumbrance is simply disregarded
and considered as not written. The CHs right to the legitime
is free, unencumbered, and pure.
Art. 905. Every renunciation or compromise as regards a
future legitime between the person owing it and his
compulsory heirs is void, and the latter may claim the
same upon the death of the former; but they must bring
to collation whatever they may have received by virtue
of the renunciation or compromise. (816)
1. The future legitime between is merely an
expectancy, and the heir does not acquire any
right over the same until death of testator.
2. The renunciation or compromise does not
become valid by the mere failure of the
compulsory heirs to assert its invalidity because
the matter of its legal effect cannot be left to the
will of the parties.
3. all renunciations of future legitimes are void.
However, a mere statement made by a son of the
properties ne has received from his father, still
living, for the purpose of taking the same into
account in case of partition in the event the father
dies, is not a renunciation or compromise on future
legitime.
4. Since the legitime is a part of the inheritance,
and a compromise is contract, it is obvious that all
compromises on future legitimes, by and between
the heirs themselves to the exclusion of the
testator, must be held void if not under this article,
under the general prohibition of Art. 1347.
5. the nullity of the renunciation or compromise
may be claimed, not only by the CH who made it,
by co-heirs prejudiced thereby.
6. the giving of donations as advance of the
legitime is not prohibited by this article nor 1347
but governed by rules on donation and the
reduction thereof whenever inofficoius.
Art. 906. Any compulsory heir to whom the testator has
left by any title less than the legitime belonging to him
may demand that the same be fully satisfied. (815)
By the word testator, irt is believed thiat this principle applies
only when that which has been left is in a will or testament. If
there is no testatmentery disposition in his favor, the heir
cannot ask for completion of his legitime, because there is
nothing to complete; instead, there should be case of
preterition or total omission, and in such case the forced heir
in the direct line is entitled to ask, not merely for the
completion of his legitime, but for the annulment of the
institution of heir.
But when it is not evedent that the testator has forgotten the
compulsory heir and it appears as a fact that the compulsory

44

heir had already received something in the way of advance

upon his legitime, it cannot be presumed that the testator
had forgotten the compulsory heir. There is no real
preterition, although nothing has been left by will to the CH.
The purpose of Article 906 evidently is to give the
compulsory heir only that ehich has been reserved for him
by the law, nothing less nothing more. If he was not
forgotten then he is entitled only to that which the testator
cannot deprive him.
Even when the CH has not been mentioned in the will or has
not been gien an advance on his legitime, if the
testamentary dispositions do not cover the entire estate but
something is left undisposed, and the CH is also a
compulsory heir is also an intestate heir. The indisposed
portion would pass by the rule of intestacy to the CH; if it is
not enough to cover his legitime, then he may ask for the
completion of such legitme. It is to be presumed that the
testator intended to give him the undisposed portion.
Art. 907. Testamentary dispositions that impair or
diminish the legitime of the compulsory heirs shall be
reduced on petition of the same, insofar as they may be
inofficious or excessive. (817)
Only the CHs whose legitme has been impaired can avail of
the right to ask for the reduction of inofficious donations,
devises, or legacies.
Art. 1347. All things which are not outside the commerce
of men, including future things, may be the object of a
contract. All rights which are not intransmissible may
also be the object of contracts.
No contract may be entered into upon future inheritance
except in cases expressly authorized by law.
All services which are not contrary to law, morals, good
customs, public order or public policy may likewise be
the object of a contract. (1271a)
It is essential that the object must be in existence at the time
of perfection of the contract, or that it has the possibility or
potentiality of coming into existence at some future time. By
way of exception, the law generally does not allow contracts
on future inheritance. In order to be future inheritance, the
succession must not have been opened at the time of the
contract. A contract to fall within the prohibition of this article,
the following requisites are necessary: 1. that the succession
is yet to be opened. 2. the object forms part of the
inheritance. 3. the promissor has an expectant right over the
object which is purely hereditary in nature.
An agreement to partition an estate of a living person by
those who inherit from him is void. A contract renouncing the
right to inherit from one who is still alive is void.
After the death of the person, however, the properties and
rights left by him by way of inheritance can be the subject
matter of a contract among or by his heirs, even before a
partition thereof has been made, because the rights of the
heirs are transmitted to them from the death of the
predecessor.
When the object of the contract is not a part of the
inheritance, the prohibition does not apply, even if delivery of
such object is dependent upon the death of one of the
contracting parties. Thus, life insurance contracts, and
stipulations providing for reversion of property donated in
marriage settlements in the event of the death of the donee,
are valid. Likewise, if the right of the party over the thing is
not by virtue of succession, but as creditor, the contract does
not fall within the prohibition of this article. It has been held
that in a contract of purchase by co-owners, it is valid to
stipulate that in the event of death of any of them, those who
survive will acquire the share of the predeceased.
E. Determination of computation
Art. 908. To determine the legitime, the value of the
property left at the death of the testator shall be
considered, deducting all debts and charges, which
shall not include those imposed in the will.
Steps to determine legitime:
1. Determination of the value of the property
which remains at the time of the testators death;
either by:
a. judicial
proceedings
in
the
settlement of the estate assisted by tax
appraisers
b. true value of the property not
merely assessed value for taxation
purposes
2. determination of the obligations, debts, and
charges which have to be paid out or deducted
from the value of the property
3. the difference between the assets and the
liabilities, giving rise to the net hereditary estate;
4. addition to the net value of the estate of
donations subject to collation
5. determination of the amount of legitimes by
getting from the total thus found the portion that
the law provides as the legitimes of each
respective CH.
The remainder after deduction of the debts and charges is
the net hereditary estate.
Collation, in the first concept is the imaginary or fictitious
reconstitution of the estate of the testator by mere
mathematical process of adding all that is donated during
the lifrtime of the testator to CH or strangers.

The second concept entails that property donated by the

testator during his lifetime must be brought back actually and
returened to the hereditary estate whenever it is found that
such donation exceeds the disposable portion of the estate.
The purpose of which is to complete the assets necessary
for the payment of the shares of the compulsory heirs.
Collation is thus for the benefit of the CH, and not the
creditors of the decedent. The presence of the latter,
however, must be determined at the time of the testators
death, not at the time the donation was made. The value of
the property donated, however, is determined on the date
the donations were made.
To the net value of the hereditary estate, shall be added
the value of all donations by the testator that are subject
to collation, at the time he made them. (818a)
Art. 909. Donations given to children shall be charged to
their legitime.
Donations made to strangers shall be charged to that
part of the estate of which the testator could have
disposed by his last will.
Insofar as they may be inofficious or may exceed the
disposable portion, they shall be reduced according to
the rules established by this Code. (819a)
Art. 910. Donations which an illegitimate child may have
received during the lifetime of his father or mother, shall
be charged to his legitime.
Should they exceed the portion that can be freely
disposed of, they shall be reduced in the manner
prescribed by this Code. (847a)
Any donation to the grandchild is not subject to collation
because the same is not a CH but it may be charged against
the free portion as a donation to stranger.
When the donation to a compulsory heir exceeds his
legitime, the excess is chargeable against the free portion
which is at the disposal of the the testator, just as any
donation to stranger, subject to the resk of reduction.
If the donation to a stranger exceeds the free portion, then it
will have to be reduced as inofficious. The purpose of the
law is not to prevent the stranger from getting more from the
inheritance, but to ascertain that the CH do not get less than
what pertains to them as legitime.
Art. 911. After the legitime has been determined in
accordance with the three preceding articles, the
reduction shall be made as follows:
(1) Donations shall be respected as long as the
legitime can be covered, reducing or annulling,
if necessary, the devises or legacies made in
the will;
(2) The reduction of the devises or legacies
shall be pro rata, without any distinction
whatever.
If the testator has directed that a certain devise
or legacy be paid in preference to others, it
shall not suffer any reduction until the latter
have been applied in full to the payment of the
legitime.
(3) If the devise or legacy consists of a
usufruct or life annuity, whose value may be
considered greater than that of the disposable
portion, the compulsory heirs may choose
between complying with the testamentary
provision and delivering to the devisee or
legatee the part of the inheritance of which the
testator could freely dispose. (820a)
Donation intervivos is preferred over disposition mortis
causa. Ratio:
1. Donation intervivos are by nature irrevocable
to allow annulment on account of legacies and
devise in excess of free portion in effect allows the
revocation to depend on the will of the donortestator.
2. Donation is a bilateral act based on the
sgreement of donor and donee while a will is
unilateral;
3. Priority in time is priority in right.
The article provides a rule on preference to determine which
devise or legacy is to be reduced whenervr it execeeds the
free portion or to the extent that it impairs the legitime.
Art. 950 also provides the following order of reduction of
legacy or devise:
1. remunatory legacy or devise;
2. legacy or devise declared by testator to be
preferred;
3. legacies for support;
4. legacies for education;
5. specific determinate thing ehich form part of the
estate;
6. all others pro rata.
Where lies the distintion bet. 950 and 911?
Article 911 will apply as to the manner of reducing legacies:
a. when reduction is necessary to preserve
legitime of CH from impairment wheter there are
donation inter vivos;
b. when although legitime has been preserve by
the testator, by giving sufficient portion to cover
legitime of CH, thereare donations inter vivos
concurring with legacies or devises within the free
portion.

45

Article 950 applies when the question of reduction is

exclusively among the legatees themselves, either because
ther are no compulsory heirs, or because the legitme of CH
has already been provided for by the testator in his will and
there are no donation inter vivos.
As to usufruct, use or habitation, or life annuity there shall be
taken into account the probable life of the beneficiary in
accordance with the American Tropical Experience table at
8% per annum.
Donations are reduced first the most recent ones with regard
the excess. Thus, priority in time priority in right. If several
donations made on the same date they are reduced pro rata
A property donated once alienated by donee cannot be set
aside. It would be dangerous to the stability of property and
inimical to the freedom of alienation.
In the above instance, can the inofficious part of the
donation be taken from other proerty of the donee?
We believe that in such case the donee should be made to
respond fro the value of the excess or inofficoius part. It was
the act of the donee which made it impossible to recover the
inofficoius part to the hereditary estate. He is conclusively
presumed to knoe that that the donation stands the risk of
reduction.
What if the donee is insolvent and cannot return anything to
the estate to complete the impaired legitime; who shall bear
the loss?
It is submitted that that the amount to be returned by the
insolvent must be borne and paid by those whose donation
are within the free portion. As between the compulsory heir,
whose rights are derived from law, and the donees, whose
rights spring from the will of the deceased, the former should
be protected from the impairment of their shares.
Art. 912. If the devise subject to reduction should
consist of real property, which cannot be conveniently
divided, it shall go to the devisee if the reduction does
not absorb one-half of its value; and in a contrary case,
to the compulsory heirs; but the former and the latter
shall reimburse each other in cash for what respectively
belongs to them.
The devisee who is entitled to a legitime may retain the
entire property, provided its value does not exceed that
of the disposable portion and of the share pertaining to
him as legitime. (821)
Art. 913. If the heirs or devisees do not choose to avail
themselves of the right granted by the preceding article,
any heir or devisee who did not have such right may
exercise it; should the latter not make use of it, the
property shall be sold at public auction at the instance
of any one of the interested parties. (822)
T: Division under this article means a material division, which
is inconvenient, because the the property is not susceptible
of such division, or because it will lose or diminish its value
or utitlity when so divided. Hence, although the law
specifically refers only to devise, it should be considered
applicable to all objects whether movable or immovable, of
the same nature, such as vessels.
Query: if the reduction should be exactly of the value,
does it mean that the hir gets to retain it not being less than
? does not absorb
It is submitted that the thing should be retained by the
devisee. The intention of the testaor in making a devise of a
determinate object is clearly so that the legatee may enjoy
that particular property. Out of respect for this intention, and
since the will of the testator is the governing law in the
succession, the thing should be given to the devisee in case
he is entitled to half its value and the heirs the other half.
Summary of Legitimes of Compulsory Heirs
1. Legitimate Children with other CH
c. LC alone
d. 1 LC w/ SS- ,
e. 2 or more LC w/ SS , same as 1 LC
receives
f.
LC w/ IC , half of 1 LC
g. 1LC, SS, IC , , half of 1 LC
h. LCs, SS, IC , same as 1 LC, half of 1 LC
2. Legitimate Parents & Ascendants w/ other CH
a.
b.
c.
d.

LPA alone 1/2

LPA w/ SS ,
LPA w/ IC ,
LPA, SS, IC , 1/8,

3. Illegitimate Children w/ other IC

a.
b.

IC alone
IC w/ SS 1/3, 1/3

4. Surviving Spouse alone

Except in articulo mortis marriage and spouse dies w/in
3 mos. Surviving spouse entitled only to 1/3
5. Illegitimate Parents w/ other CH

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

kind and quality as that subject to collation shall be

made the standard of assessment. (1049)
Art. 1076. The co-heirs are bound to reimburse to the
donee the necessary expenses which he has incurred
for the preservation of the property donated to him,
though they may not have augmented its value.
The donee who collates in kind an immovable which has
been given to him must be reimbursed by his co-heirs
for the improvements which have increased the value of
the property, and which exist at the time the partition if
effected.
As to works made on the estate for the mere pleasure of
the donee, no reimbursement is due him for them; he
has, however, the right to remove them, if he can do so
without injuring the estate. (n)
Art. 1077. Should any question arise among the co-heirs
upon the obligation to bring to collation or as to the
things which are subject to collation, the distribution of
the estate shall not be interrupted for this reason,
provided adequate security is given. (1050)
Dizon-Rivera vs. Dizon
On January 28, 1961, the testatrix, Agripina J. Valdez. a
widow, died in Angeles, Pampanga, and was survived by
seven compulsory heirs, to wit, six legitimate children named
Estela Dizon, Tomas V. Dizon, Bernardita Dizon, Marina
Dizon (herein executrix-appellee), Angelina Dizon and
Josefina Dizon, and a legitimate grand-daughter named Lilia
Dizon, who is the only legitimate child and heir of Ramon
Dizon, a pre-deceased legitimate son of the said decedent.
Six of these seven compulsory heirs (except Marina Dizon,
the executrix-appellee) are the oppositors-appellants.
In her will, the testatrix divided, distributed and disposed of
all her properties appraised at P1,801,960.00 (except, two
small parcels of land appraised at P5,849.60, household
furniture valued at P2,500.00, a bank deposit in the sum of
P409.95 and ten shares of Pampanga Sugar Development
Company valued at P350.00) among her abovenamed heirs.
Testate proceedings were in due course commenced 2 and
by order dated March 13, 1961, the last will and testament of
the decedent was duly allowed and admitted to probate, and
the appellee Marina Dizon-Rivera was appointed executrix
of the testatrix' estate, and upon her filing her bond and oath
of office, letters testamentary were duly issued to her.
The real and personal properties of the testatrix at the time
of her death thus had a total appraised value of
P1,811,695.60, and the legitime of each of the seven
compulsory heirs amounted to P129,362.11. 3 (1/7 of the
half of the estate reserved for the legitime of legitimate
children and descendants). 4 In her will, the testatrix
"commanded that her property be divided" in accordance
with her testamentary disposition, whereby she devised and
bequeathed specific real properties comprising practically
the entire bulk of her estate among her six children and eight
grandchildren.
Under the oppositors' counter-project of partition, the
testamentary disposition made by the testatrix of practically
her whole estate of P1,801,960.01, as above stated, were
proposed to be reduced to the amounts set forth after the
names of the respective heirs and devisees totalling one-half
while the other half of the estate (P905,534.78) would he
deemed as constituting the legitime of the executrix-appellee
and oppositors-appellants, to be divided among them in
seven equal parts of P129,362.11 as their respective
legitimes.
The lower court, after hearing, sustained and approved the
executrix' project of partition, ruling that "(A)rticles 906 and
907 of the New Civil Code specifically provide that when the
legitime is impaired or prejudiced, the same shall be
completed and satisfied. While it is true that this process has
been followed and adhered to in the two projects of partition,
it is observed that the executrix and the oppositors differ in
respect to the source from which the portion or portions shall
be taken in order to fully restore the impaired legitime. The
proposition of the oppositors, if upheld, will substantially
result in a distribution of intestacy, which is in controversion
of Article 791 of the New Civil Code" adding that "the
testatrix has chosen to favor certain heirs in her will for
reasons of her own, cannot be doubted. This is legally
permissible within the limitation of the law, as aforecited."
With reference to the payment in cash of some P230,552.38,
principally by the executrix as the largest beneficiary of the
will to be paid to her five co-heirs, the oppositors (excluding
Tomas Dizon), to complete their-impaired legitimes, the
lower court ruled that "(T)he payment in cash so as to make
the proper adjustment to meet with the requirements of the
law in respect to legitimes which have been impaired is, in
our opinion, a practical and valid solution in order to give
effect to the last wishes of the testatrix."
m the lower court's orders of approval, oppositors-appellants
have filed this appeal, and raise anew the following issues:

1. Whether or not the testamentary dispositions

made in the testatrix' will are in the nature of devises
imputable to the free portion of her estate, and
therefore subject to reduction;
2. Whether the appellants are entitled to the devise
plus their legitime under Article 1063, or merely to
demand completion of their legitime under Article 906
of the Civil Code; and
3. Whether the appellants may be compelled to
accept payment in cash on account of their legitime,
instead of some of the real properties left by the
Testatrix;
The testator's wishes and intention constitute the first and
principal law in the matter of testaments, and to paraphrase
an early decision of the Supreme Court of Spain. 9 when
expressed clearly and precisely in his last will amount to the
only law whose mandate must imperatively be faithfully
obeyed and complied with by his executors, heirs and
devisees and legatees, and neither these interested parties
nor the courts may substitute their own criterion for the
testator's will. Guided and restricted by these fundamental
premises, the Court finds for the appellee.
This was properly complied with in the executrix-appellee's
project of partition, wherein the five oppositors-appellants
namely Estela. Bernardita, Angelina, Josefina and Lilia, were
adjudicated the properties respectively distributed and
assigned to them by the testatrix in her will, and the
differential to complete their respective legitimes of
P129,362.11 each were taken from the cash and/or
properties of the executrix-appellee, Marina, and their cooppositor-appellant, Tomas, who admittedly were favored by
the testatrix and received in the partition by will more than
their respective legitimes.
This right of a testator to partition his estate by will was
recognized even in Article 1056 of the old Civil Code which
has been reproduced now as Article 1080 of the present
Civil Code. The only amendment in the provision was that
Article 1080 "now permits any person (not a testator, as
under the old law) to partition his estate by act inter vivos."
11 This was intended to repeal the then prevailing doctrine
12 that for a testator to partition his estate by an act inter
vivos, he must first make a will with all the formalities
provided by law. Authoritative commentators doubt the
efficacy of the amendment
13 but the question does not
here concern us, for this is a clear case of partition by will,
duly admitted to probate, which perforce must be given full
validity and effect. Aside from the provisions of Articles 906
and 907 above quoted, other codal provisions support the
executrix-appellee's project of partition as approved by the
lower court rather than the counter-project of partition
proposed by oppositors-appellants whereby they would
reduce the testamentary disposition or partition made by the
testatrix to one-half and limit the same, which they would
consider as mere devises or legacies, to one-half of the
estate as the disposable free portion, and apply the other
half of the estate to payment of the legitimes of the seven
compulsory heirs. Oppositors' proposal would amount
substantially to a distribution by intestacy and pro tanto
nullify the testatrix' will, contrary to Article 791 of the Civil
Code. It would further run counter to the provisions of Article
1091 of the Civil Code that "(A) partition legally made
confers upon each heir the exclusive ownership of the
property adjudicated to him.
The burden of oppositors' contention is that the testamentary
dispositions in their favor are in the nature of devises of real
property, citing the testatrix' repeated use of the words "I
bequeath" in her assignment or distribution of her real
properties to the respective heirs. From this erroneous
premise, they proceed to the equally erroneous conclusion
that "the legitime of the compulsory heirs passes to them by
operation of law and that the testator can only dispose of the
free portion, that is, the remainder of the estate after
deducting the legitime of the compulsory heirs . . . and all
testamentary dispositions, either in the nature of institution of
heirs or of devises or legacies, have to be taken from the
remainder of the testator's estate constituting the free
portion."
Oppositors' conclusions necessarily are in error. The
testamentary dispositions of the testatrix, being dispositions
in favor of compulsory heirs, do not have to be taken only
from the free portion of the estate, as contended, for the
second paragraph of Article 842 of the Civil Code precisely
provides that "(O)ne who has compulsory heirs may dispose
of his estate provided he does not contravene the provisions
of this Code with regard to the legitime of said heirs." And
even going by oppositors' own theory of bequests, the
second paragraph of Article 912 of the Civil Code covers
precisely the case of the executrix-appellee, who admittedly
was favored by the testatrix with the large bulk of her estate
in providing that "(T)he devisee who is entitled to a legitime
may retain the entire property, provided its value does not

47

exceed that of the disposable portion and of the share

pertaining to him as legitime." For "diversity of apportionment
is the usual reason for making a testament; otherwise, the
decedent might as well die intestate." 18 Fundamentally, of
course, the dispositions by the testatrix constituted a
partition by will, which by mandate of Article 1080 of the Civil
Code and of the other cited codal provisions upholding the
primacy of the testator's last will and testament, have to be
respected insofar as they do not prejudice the legitime of the
other compulsory heirs.
Oppositors' invoking of Article 1063 of the Civil Code that
"(P)roperty 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" and invoking of the
construction thereof given by some authorities that "'not
deemed subject to collation' in this article really means not
imputable to or chargeable against the legitime", while it may
have some plausibility 19 in an appropriate case, has no
application in the present ease. Here, we have a case of a
distribution and partition of the entire estate by the testatrix,
without her having made any previous donations during her
lifetime which would require collation to determine the
legitime of each heir nor having left merely some properties
by will which would call for the application of Articles 1061 to
1063 of the Civil Code on collation. The amount of the
legitime of the heirs is here determined and undisputed.
With this resolution of the decisive issue raised by
oppositors-appellants, the secondary issues are likewise
necessarily resolved. Their right was merely to demand
completion of their legitime under Article 906 of the Civil
Code and this has been complied with in the approved
project of partition, and they can no longer demand a further
share from the remaining portion of the estate, as
bequeathed and partitioned by the testatrix principally to the
executrix-appellee.
Neither may the appellants legally insist on their legitime
being completed with real properties of the estate instead of
being paid in cash, per the approved project of partition. The
properties are not available for the purpose, as the testatrix
had specifically partitioned and distributed them to her heirs,
and the heirs are called upon, as far as feasible to comply
with and give effect to the intention of the testatrix as
solemnized in her will, by implementing her manifest wish of
transmitting the real properties intact to her named
beneficiaries, principally the executrix-appellee. The
appraisal report of the properties of the estate as filed by the
commissioner appointed by the lower court was approved in
toto upon joint petition of the parties, and hence, there
cannot be said to be any question and none is presented
as to fairness of the valuation thereof or that the legitime
of the heirs in terms of cash has been understated. The
plaint of oppositors that the purchasing value of the
Philippine peso has greatly declined since the testatrix'
death in January, 1961 provides no legal basis or
justification for overturning the wishes and intent of the
testatrix. The transmission of rights to the succession are
transmitted from the moment of death of the decedent
(Article 777, Civil Code) and accordingly, the value thereof
must be reckoned as of then, as otherwise, estates would
never be settled if there were to be a revaluation with every
subsequent fluctuation in the values of the currency and
properties of the estate. There is evidence in the record that
prior to November 25, 1964, one of the oppositors,
Bernardita, accepted the sum of P50,000.00 on account of
her inheritance, which, per the parties' manifestation,
20
"does not in any way affect the adjudication made to her in
the projects of partition of either party as the same is a mere
advance of the cash that she should receive in both projects
of partition." The payment in cash by way of making the
proper adjustments in order to meet the requirements of the
law on non-impairment of legitimes as well as to give effect
to the last will of the testatrix has invariably been availed of
and sanctioned. 21 That her co-oppositors would receive
their cash differentials only now when the value of the
currency has declined further, whereas they could have
received them earlier, like Bernardita, at the time of approval
of the project of partition and when the peso's purchasing
value was higher, is due to their own decision of pursuing
the present appeal.

upon is whether these lands are subject to collation. The

private respondent vigorously argues that it is, conformably
to Article 1061 of the Civil Code. Buhay, for her part, citing
Article 1062, claims she has no obligation to collate because
the decedent prohibited such collation and the donation was
not officious.
The issue was resolved in favor of the petitioner by the trial
court, * which held that the decedent, when she made the
donation in favor of Buhay, expressly prohibited collation.
Moreover, the donation did not impair the legitimes of the
two adopted daughters as it could be accommodated in, and
in fact was imputed to, the free portion of Candelaria's
estate. 3
On appeal, the order of the trial court was reversed, the
respondent court
** holding that the deed of donation
contained no express prohibition to collate as an exception
to Article 1062. Accordingly, it ordered collation and equally
divided the net estate of the decedent, including the fruits of
the donated property, between Buhay and Rosalinda. 4
We agree with the respondent court that there is nothing in
the above provisions expressly prohibiting the collation of
the donated properties. As the said court correctly observed,
the phrase "sa pamamagitan ng pagbibigay na di na
mababawing muli" merely described the donation as
"irrevocable" and should not be construed as an express
prohibition against collation. 6 The fact that a donation is
irrevocable does not necessarily exempt the subject thereof
from the collation required under Article 1061.
We surmise from the use of such terms as "legitime" and
"free portion" in the deed of donation that it was prepared by
a lawyer, and we may also presume he understood the legal
consequences of the donation being made. It is reasonable
to suppose, given the precise language of the document,
that he would have included therein an express prohibition to
collate if that had been the donor's intention.
Anything less than such express prohibition will not suffice
under the clear language of Article 1062. The suggestion
that there was an implied prohibition because the properties
donated were imputable to the free portion of the decedent's
estate merits little consideration. Imputation is not the
question here, nor is it claimed that the disputed donation is
officious. The sole issue is whether or not there was an
express prohibition to collate, and we see none.
The intention to exempt from collation should be expressed
plainly and unequivocally as an exception to the general rule
announced in Article 1062. Absent such a clear indication of
that intention, we apply not the exception but the rule, which
is categorical enough.
Locsin vs. CA
Mariano Locsin executed a Last Will and Testament
instituting his wife, Catalina, as the sole and universal heir of
all his properties 3 . The will was drawn up by his wife's
nephew and trusted legal adviser, Attorney Salvador
Lorayes. Attorney Lorayes disclosed that the spouses being
childless, they had agreed that their properties, after both of
them shall have died should revert to their respective sides
of the family, i.e., Mariano's properties would go to his
"Locsin relatives" (i.e., brothers and sisters or nephews and
nieces), and those of Catalina to her "Jaucian relatives. 4 "
Don Mariano Locsin died of cancer on September 14, 1948
after a lingering illness. In due time, his will was probated in
Special Proceedings No. 138, CFI of Albay without any
opposition from both sides of the family. As directed in his
will, Doa Catalina was appointed executrix of his estate.
Her lawyer in the probate proceedings was Attorney
Lorayes. In the inventory of her husband's estate 5 which
she submitted to the probate court for approval, 6 Catalina
declared that "all items mentioned from Nos. 1 to 33 are the
private properties of the deceased and form part of his
capital at the time of the marriage with the surviving spouse,
while items Nos. 34 to 42 are conjugal." 7

Candelaria de Roma had two legally adopted daughters,

Buhay de Roma and Rosalinda de Roma. She died intestate
on April 30, 1971, and administration proceedings were
instituted in the Court of First Instance of Laguna by the
private respondent as guardian of Rosalinda. Buhay was
appointed administratrix and in due time filed an inventory of
the estate. This was opposed by Rosalinda on the ground
that certain properties earlier donated by Candelaria to
Buhay, and the fruits thereof, had not been included. 1

Among her own and Don Mariano's relatives, Doa Catalina

was closest to her nephew, Attorney Salvador Lorayes, her
nieces, Elena Jaucian, Maria Lorayes-Cornelio and Maria
Olbes-Velasco, and the husbands of the last two: Hostilio
Cornelio and Fernando Velasco.
8 Her trust in Hostilio
Cornelio was such that she made him custodian of all the
titles of her properties; and before she disposed of any of
them, she unfailingly consulted her lawyer-nephew, Attorney
Salvador Lorayes. It was Atty. Lorayes who prepared the
legal documents and, more often than not, the witnesses to
the transactions were her nieces Elena Jaucian, Maria
Lorayes-Cornelio, Maria Olbes-Velasco, or their husbands.
Her niece, Elena Jaucian, was her life-long companion in her
house.

The properties in question consisted of seven parcels of

coconut land worth P10,297.50. 2 There is no dispute
regarding their valuation; what the parties cannot agree

Don Mariano relied on Doa Catalina to carry out the terms

of their compact, hence, nine (9) years after his death, as if
in obedience to his voice from the grave, and fully cognizant

De Roma vs. CA

48

that she was also advancing in years, Doa Catalina began

transferring, by sale, donation or assignment, Don
Mariano's, as well as her own, properties to their respective
nephews and nieces. She made the following sales and
donations of properties which she had received from her
husband's estate, to his Locsin nephews and nieces:
Doa Catalina died on July 6, 1977. Four years before her
death, she had made a will on October 22, 1973 affirming
and ratifying the transfers she had made during her lifetime
in favor of her husband's, and her own, relatives. After the
reading of her will, all the relatives agreed that there was no
need to submit it to the court for probate because the
properties devised to them under the will had already been
conveyed to them by the deceased when she was still alive,
except some legacies which the executor of her will or
estate, Attorney Salvador Lorayes, proceeded to distribute.
In 1989, or six (6) years after Doa Catalina's demise, some
of her Jaucian nephews and nieces who had already
received their legacies and hereditary shares from her
estate, filed action in the Regional Trial Court of Legaspi City
(Branch VIII, Civil Case No. 7152) to recover the properties
which she had conveyed to the Locsins during her lifetime,
alleging that the conveyances were in officious, without
consideration, and intended solely to circumvent the laws on
succession. Those who were closest to Doa Catalina did
not join the action.
After the trial, judgment was rendered on July 8, 1985 in
favor of the plaintiffs (Jaucian), and against the Locsin
defendants
The petition has merit and should be granted. The trial court
and the Court of Appeals erred in declaring the private
respondents, nephews and nieces of Doa Catalina J. Vda.
de Locsin, entitled to inherit the properties which she had
already disposed of more than ten (10) years before her
death. For those properties did not form part of her
hereditary estate, i.e., "the property and transmissible rights
and obligations existing at the time of (the decedent's) death
and those which have accrued thereto since the opening of
the succession."
10 The rights to a person's succession
are transmitted from the moment of his death, and do not
vest in his heirs until such time.
11 Property which Doa
Catalina had transferred or conveyed to other persons
during her lifetime no longer formed part of her estate at the
time of her death to which her heirs may lay claim. Had she
died intestate, only the property that remained in her estate
at the time of her death devolved to her legal heirs; and even
if those transfers were, one and all, treated as donations, the
right arising under certain circumstances to impugn and
compel the reduction or revocation of a decedent's gifts inter
vivos does not inure to the respondents since neither they
nor the donees are compulsory (or forced) heirs. 12
There is thus no basis for assuming an intention on the part
of Doa Catalina, in transferring the properties she had
received from her late husband to his nephews and nieces,
an intent to circumvent the law in violation of the private
respondents' rights to her succession. Said respondents are
not her compulsory heirs, and it is not pretended that she
had any such, hence there were no legitimes that could
conceivably be impaired by any transfer of her property
during her lifetime. All that the respondents had was an
expectancy that in nowise restricted her freedom to dispose
of even her entire estate subject only to the limitation set
forth in Art. 750, Civil Code which, even if it were breached,
the respondents may not invoke:
"Art 750. The
donation
may
comprehend all the present property of
the donor, or part thereof, provided he
reserves, in, full ownership or in
usufruct, sufficient means for the
support of himself, and of all relatives
who, at the time of the acceptance of
the donation, are by law entitled to be
supported by the donor. Without such
reservation, the donation shall be
reduced on petition of any person
affected. (634a).
The lower court capitalized on the fact that Doa Catalina
was already 90 years old when she died on July 6, 1977. It
insinuated that because of her advanced years she may
have been imposed upon, or unduly influenced and morally
pressured by her husband's nephews and nieces (the
petitioners) to transfer to them the properties which she had
inherited from Don Mariano's estate. The records do not
support that conjecture.
For as early as 1957, or twenty-eight (28) years before her
death, Doa Catalina had already begun transferring to her
Locsin nephews and nieces the properties which she
received from Don Mariano. She sold a 962-sq.m. lot on
January 26, 1957 to his nephew and namesake Mariano
Locsin II.
13 On April 7, 1966, or 19 years before she

passed away, she also sold a 43-hectare land to another

Locsin nephew, Jose R. Locsin.
14 The next year, or on
March 22, 1967, she sold a 5,000-sq.m. portion of Lot 2020
to Julian Locsin. 15
Among Doa Catalina's last transactions before she died in
1977 were the sales of property which she made in favor of
Aurea Locsin and Mariano Locsin in 1975. 18
There is not the slightest suggestion in the record that Doa
Catalina was mentally incompetent when she made those
dispositions. Indeed, how can any such suggestion be made
in light of the fact that even as she was transferring
properties to the Locsins, she was also contemporaneously
disposing of her other properties in favor of the Jaucians?
She sold to her nephew, Vicente Jaucian, on July 16, 1964
(21 years before her death) one-half (or 5,000 sq.m.) of Lot
2020. Three years later, or on March 22, 1967, she sold
another 5,000 sq.m. of the same lot to Jualian Locsin. 19
This Court finds no reason to disbelieve Attorney Lorayes'
testimony that before Don Mariano died, he and his wife
(Doa Catalina), being childless, had agreed that their
respective properties should eventually revert to their
respective lineal relatives. As the trusted legal adviser of the
spouses and a full-blood nephew of Doa Catalina, he would
not have spun a tale out of thin air that would also prejudice
his own interest.
Their desistance persuasively demonstrates that Doa
Catalina acted as a completely free agent when she made
the conveyances in favor of the petitioners. In fact,
considering their closeness to Doa Catalina it would have
been well-nigh impossible for the petitioners to employ
"fraud, undue pressure, and subtle manipulations" on her to
make her sell or donate her properties to them. Doa
Catalina's niece, Elena Jaucian, daughter of her brother,
Eduardo Jaucian, lived with her in her house. Her nephewin-law, Hostilio Cornelio, was the custodian of the titles of
her properties.
Apart from the foregoing considerations, the trial court and
the Court of Appeals erred in not dismissing this action for
annulment and reconveyance on the ground of prescription.
Commenced decades after the transactions had been
consummated, and six (6) years after Doa Catalina's death,
it prescribed four (4) years after the subject transactions
were recorded in the Registry of Property,
28 whether
considered an action based on fraud, or one to redress an
injury to the rights of the plaintiffs. The private respondents
may not feign ignorance of said transactions because the
registration of the deeds was constructive notice thereof to
them and the whole world. 29
WHEREFORE, the petition for review is granted.
F. Freedom to dispose free portion
Art. 914. The testator may devise and bequeath the free
portion as he may deem fit.
The article reiterates the principle embodied already in
article 842. thus, superfluous and at some point misleading.
In many cases, the testator cannot really dispose of part or
whole of the free portion, because the legitimes of
concurring compulsory heirs, like the surviving spouse and
illegitimate children when there are legitimate children or
descendants, are taken from the free portion. Hence, he can
only dispose that which is the remainder of the free portion
when this is partly consumed by the legitimes of concurring
compulsory heirs. The phrase, as he may deem fit, is
therefore erroneous. The testator does not absolute freedom
over the free portion when concurring CH are present and
only to those qualified to succeed.

PRINCIPLES AFFECTING LEGITIME

XII. PRETERITION
Art. 854. The preterition or omission of one, some, or all
of the compulsory heirs in the direct line, whether living
at the time of the execution of the will or born after the
death of the testator, shall annul the institution of heir;
but the devises and legacies shall be valid insofar as
they are not inofficious.
If the omitted compulsory heirs should die before the
testator, the institution shall be effectual, without
prejudice to the right of representation. (814a)
Art. 855. The share of a child or descendant omitted in a
will must first be taken from the part of the estate not
disposed of by the will, if any; if that is not sufficient, so

49

much as may be necessary must be taken proportionally

from the shares of the other compulsory heirs. (1080a)
The article does not necessarily refer to preterition. It refers
to a child or descendant omitted in a will.
The share of the omitted child is to be determined by other
provisions of law; once that is determined this article
provides the manner in which that share shall be satisfied.
This article suffers serious defects. The term cjold pr
descendant should be construed as compulsory heirs, in
much the same way that the first paragraph of article 909
has been construed by commentators to refer to compulsory
heirs.
Theree is patent fundamental mistake in the last sentence of
the article because it creates a confusion and does not
express the true intent of the law. It should have been
reworded in this wise:
the share of the compulsory heir omitted in a will must first
be taken from the part of the estate not diposed of by will, if
any; it that is not sufficient, so much as may be necessary
must be taken PROPORTIONALLY FROM THE SHARES
OF THE OTHER HEIRS GIVEN TO THEM BY WILL
Art. 906. Any compulsory heir to whom the testator has
left by any title less than the legitime belonging to him
may demand that the same be fully satisfied. (815)
If there is no testamentary disposition in his favor, the heir
cannot ask for completion of his legitime, because there is
nothing to complete; instead there should be a case
preterition or total omission, and in such case the forced heir
in the direct line is entitled to ask, not merely for the
completion of his legitime. But for the annulment of the
institution of heir.
Art. 918. Disinheritance without a specification of the
cause, or for a cause the truth of which, if contradicted,
is not proved, or which is not one of those set forth in
this Code, shall annul the institution of heirs insofar as
it may prejudice the person disinherited; but the devises
and legacies and other testamentary dispositions shall
be valid to such extent as will not impair the legitime.
(851a)
This article pertain to effects of a disinheritance which does
not have one or more of the essential requisites for its
validity. It likewise applies to cases of reconciliation after a
disinheritance has been made.
The ineffective disinheritance does not affect the disposition
of the testator with respect to the free portion. The reason is
the disinheritance in this case refers only only to the legitime
of the heir, and therefore, it is only this portion that is
affected by the nullity or ineffectiveness of such
disinheritance.
Where the disinheritance is ineffective in this case, the
compulsory heir must be given all that he is entitiled to
receive as if the disinheritance has not been made, without
prejudice to lawful dispositions made by the testator in favor
of others.
Aznar vs. Duncan
Edward E. Christensen, a citizen of California with domicile
in the Philippines, died leaving a will executed on March 5,
1951. The will was admitted to probate by the Court of First
Instance of Davao in its decision of February 28, 1954. In
that same decision the court declared that Maria Helen
Christensen Garcia (hereinafter referred to as Helen Garcia)
was a natural child of the deceased. The declaration was
appealed to this Court, and was affirmed in its decision of
February 14, 1958 (G.R. No. L-11484)
In another incident relative to the partition of the deceased's
estate, the trial court approved the project submitted by the
executor in accordance with the provisions of the will, which
said court found to be valid under the law of California.
Helen Garcia appealed form the order of approval, and this
Court, on January 31, 1963, reversed the same on the
ground that the validity of the provisions of the will should be
governed by Philippine law, and returned the case to the
lower court with instructions that the partition be made as
provided by said law (G.R. No. L-16749)
On October 29, 1964, the Court of First Instance of Davao
issued an order approving the project of partition submitted
by the executor, dated June 30, 1964, wherein the
properties of the estate were divided equally between Maria
Lucy Christensen Duncan (named in the will as Maria Lucy
Christensen Daney, and hereinafter referred to as merely
Lucy Duncan), whom the testator had expressly recognized
in his will as his daughter (natural) and Helen Garcia, who
had been judicially declared as such after his death. The
said order was based on the proposition that since Helen
Garcia had been preterited in the will the institution of Lucy
Duncan as heir was annulled, and hence the properties
passed to both of them as if the deceased had died
intestate, saving only the legacies left in favor of certain
other persons, which legacies have been duly approved by
the lower court and distributed to the legatees.
The case is once more before us on appeal, this time by
Lucy Duncan, on the sole question of whether the estate,
after deducting the legacies, should pertain to her and to
Helen Garcia in equal shares, or whether the inheritance of

Lucy Duncan as instituted heir should be merely reduced to

the extent necessary to cover the legitimate of Helen Garcia,
equivalent to 1/4 of the entire estate
The trial court ruled, and appellee now maintains, that there
has been preterition of Helen Garcia, a compulsory heir in
the direct line, resulting in the annulment of the institution of
heir pursuant to Article 854 of the Civil Code, which
provides:
On the other hand, appellant contends that this is not a case
of preterition, but is governed by Article 906 of the Civil
Code, which says: "Any compulsory heir to whom the
testator has left by any title less the legitime belonging to
him may demand that the same be fully satisfied," Appellant
also suggests that considering the provisions of the will
whereby the testator expressly denied his relationship with
Helen Garcia, but left to her a legacy nevertheless, although
less than the amount of her legitime, she was in effect
defectively disinherited within the meaning of Article 918,
which reads:
Thus, according to appellant, under both Articles 906 and
918, Helen Garcia is entitled only to her legitime, and not to
a share of the estate equal that of Lucy Duncan as if the
succession were intestate.
Article 854 is a reproduction of Article 814 of the Spanish
Civil Code; and Article 906 of Article 815. On the difference
between preterition of a compulsory heir and the right to ask
for completion of his legitime
Manresa defines preterition as the omission of the heir in the
will, either by not naming him at all or, while mentioning him
as father, son, etc., by not instituting him as heir without
disinheriting him expressly, nor assigning to him some part
of the properties.
The question may be posed: In order that the right of a
forced heir may be limited only to the completion of his
legitime (instead of the annulment of the institution of heirs)
is it necessary that what has been left to him in the will "by
any title," as by legacy, be granted to him in his capacity as
heir, that is, a titulo de heredero? In other words, should he
be recognized or referred to in the will as heir? This question
is pertinent because in the will of the deceased Edward E.
Christensen Helen Garcia is not mentioned as an heir
indeed her status as such is denied but is given a legacy
of P3,600.00
Manresa cites particularly three decisions of the Supreme
Court of Spain dated January 16, 1895, May 25, 1917, and
April 23, 1932, respectively. In each one of those cases the
testator left to one who was a forced heir a legacy worth less
than the legitime, but without referring to the legatee as an
heir or even as a relative, and willed the rest of the estate to
other persons. It was held that Article 815 applied, and the
heir could not ask that the institution of heirs be annulled
entirely, but only that the legitimate be completed. (6
Manresa, pp. 438, 441.)
The foregoing solution is indeed more in consonance with
the expressed wished of the testator in the present case as
may be gathered very clearly from the provisions of his will.
He refused to acknowledge Helen Garcia as his natural
daughter, and limited her share to a legacy of P3,600.00.
The fact that she was subsequently declared judicially to
possess such status is no reason to assume that had the
judicial declaration come during his lifetime his subjective
attitude towards her would have undergone any change and
that he would have willed his estate equally to her and to
Lucy Duncan, who alone was expressly recognized by him.
The decision of this Court in Neri, et al. v. Akutin, 74 Phil.
185, is cited by appellees in support of their theory of
preterition. That decision is not here applicable, because it
referred to a will where "the testator left all his property by
universal title to the children by his second marriage, and
(that) without expressly disinheriting the children by h is first
marriage, he left nothing to them or, at least, some of them."
In the case at bar the testator did not entirely omit oppositorappellee Helen Garcia, but left her a legacy of P3,600.00
The estate of the deceased Christensen upon his death
consisted of 399 shares of stocks in the Christensen
Plantation Company and a certain amount in cash. Onefourth (1/4) of said estate descended to Helen Garcia as her
legitime. Since she became the owner of her share as of the
moment of the death of the decedent (Arts. 774, 777, Civil
Code), she is entitled to a corresponding portion of all the
fruits or increments thereof subsequently accruing. These
include the stock dividends on the corporate holdings. The
contention of Lucy Duncan that all such dividends pertain to
her according to the terms of the will cannot be sustained,
for it would in effect impair the right of ownership of Helen
Garcia with respect to her legitime.

50

One point deserves to be here mentioned. although no

reference to it has been made in the brief for oppositorappellant. It is the institution of substitute heirs to the estate
bequeathed to Lucy Duncan in the event she should die
without living issue. This substitution results in effect from
the fact that under paragraph 12 of the will she is entitled
only to the income from said estate, unless prior to her
decease she should have living issue, in which event she
would inherit in full ownership; otherwise the property will go
to the other relatives of the testator named in the will.
Without deciding this point, since it is not one of the issues
raised before us, we might call attention to the limitations
imposed by law upon this kind of substitution, particularly
that which says that it can never burden the legitime (Art.
864 Civil Code), which means that the legitime must
descend to the heir concerned in fee simple.
Nuguid vs. Nuguid
Rosario Nuguid, a resident of Quezon City, died on
December 30, 1962, single, without descendants, legitimate
or illegitimate. Surviving her were her legitimate parents,
Felix Nuguid and Paz Salonga Nuguid, and 6 brothers and
sisters namely: Alfredo, Federico, Remedios, Conrado,
Lourdes and Alberto, all surnamed Nuguid. On May 18,
1963, petitioner Remedios Nuguid filed in the Court of First
Instance of Rizal a holographic will allegedly executed by
Rosario Nuguid on November 17, 1951, some 11 years
before her demise. Petitioner prayed that said will be
admitted to probate and that letters of administration with the
will annexed be issued to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid,
concededly the legitimate father and mother of the deceased
Rosario Nuguid, entered their opposition to the probate of
her will. Ground therefor, inter alia, is that by the institution of
petitioner Remedios Nuguid as universal heir of the
deceased, oppositors who are compulsory heirs of the
deceased in the direct ascending line were illegally
preterited and that in consequence the institution is void.
The court's order of November 8, 1963, held that "the will in
question is a complete nullity and will perforce create
intestacy of the estate of the deceased Rosario Nuguid" and
dismissed the petition without costs.
A peculiar situation is here thrust upon us. The parties
shunted aside the question of whether or not the will should
he allowed probate. For them, the meat of the case is the
intrinsic validity of the will. Normally, this comes only after
the court has declared that the will been duly authenticated.
2 But petitioner and oppositors, in the court below and here
on appeal, travelled on the issue of law, to wit: Is the will
intrinsically a nullity?
We pause to reflect. If the case were to be remanded for
probate of the will, nothing will be gained. On the contrary,
this litigation will be protracted. And for aught that appears in
the record, in the event of probate or if the court rejects the
will, probability exists that the case will come once again
before us on the same issue of the intrinsic validity or nullity
of the will. Result: waste of time, effort, expense, plus added
anxiety. These are the practical considerations that induce
us to a belief that we might as well meet head-on the issue
of the nullity of the provisions of the will in question. 3 After
all, there exists a justiciable controversy crying for solution.
Petitioner's sole assignment of error challenges the
correctness of the conclusion below that the will is a
complete nullity. The statute we are called upon to apply is
Article 854 of the Civil Code. A comprehensive
understanding of the term preterition employed in the law
becomes a necessity.
And now, back to the facts and the law. The deceased
Rosario Nuguid left no descendants, legitimate or
illegitimate. But she left forced heirs in the direct ascending
line her parents, now oppositors Felix Nuguid and Paz
Salonga Nuguid. And, the will completely omits both of them:
They thus received nothing by the testament; tacitly, they
were deprived of their legitime; neither were they expressly
disinherited. This is a clear case of preterition. Such
preterition in the words of Manresa "anular siempre la
institucin de heredero, dando carcter absoluto a este
ordenamiento," referring to the mandate of Article 814, now
854 of the Civil Code.
9 The one- sentence will here
institutes petitioner as the sole, universal heir nothing
more. No specific legacies or bequests are therein provided
for. It is in this posture that we say that the nullity is
complete. Perforce, Rosario Nuguid died intestate.
Really, as we analyze the word annul employed in the
statute, there is no escaping the conclusion that the
universal institution of petitioner to the entire inheritance
results in totally abrogating the will. Because, the nullification
of such institution of universal heir without any other
testamentary disposition in the will amounts to a
declaration that nothing at all was written. Carefully worded

and in clear terms, Article 854 offers no leeway for inferential

interpretation. Giving it an expansive meaning will tear up by
the roots the fabric of the statute. On this point, Snchez
Romn cites the "Memoria annual del Tribunal Supremo,
correspondiente a 1908," which in our opinion expresses the
rule of interpretation, viz:
As aforesaid, there is no other provision in the will before us
except the institution of petitioner as universal heir. That
institution, by itself, is null and void. And, intestate
succession ensues.
Preterition "consists in the omission in the testator's will of
the forced heirs or anyone of them, either because they are
not mentioned therein, or, though mentioned, they are
neither instituted as heirs nor are expressly disinherited."
16 Disinheritance, in turn, "is a testamentary disposition
depriving any compulsory heir of his share in the legitime for
a cause authorized by law."
17 In Manresa's own words:
"La privacin expresa de la legitima constituye le
desheredacin. La privacin tcita de la misma se denomina
pretericin. 18 Snchez Romn emphasizes the distinction
by stating that disinheritance "es siempre voluntaria";
preterition, upon the other hand, is presumed to be
"involuntaria." 19 Express as disinheritance should be, the
same must be supported by a legal cause specified in the
will itself. 20
The will here does not explicitly disinherit the testatrix's
parents, the forced heirs. It simply omits their names
altogether. Said will rather than be labeled ineffective
disinheritance is clearly one in which the said forced heirs
suffer from preterition.
On top of this the fact that the effects flowing from preterition
are totally different from those of disinheritance. Preterition
under Article 854 of the Civil Code, we repeat, "shall annul
the institution of heir." This annulment is in toto, unless in the
will there are, in addition, testamentary dispositions in the
form of devises or legacies. In ineffective disinheritance
under Article 918 of the same Code, such disinheritance
shall also "annul the institution of heirs," but only "insofar as
it may prejudice the person disinherited," which last phrase
was omitted in the case of preterition. 21 Better stated yet,
in disinheritance the nullity is limited to that portion of the
estate of which the disinherited heirs have been illegally
deprived. Manresa's expressive language, in commenting on
the rights of the preterited heirs in the case of preterition on
the one hand and legal disinheritance on the other, runs
thus: "Preteridos, adquieren el derecho a todo; deshereda
dos, solo les corresponde un tercio o dos tercios,
22
segn el caso." 23
This is best answered by a reference to the opinion of Mr.
Justice Moran in the Neri case heretofore cited, viz:
"But the theory is advanced that the bequest made
by universal title in favor of the children by the
second marriage should be treated as legado and
mejora and, accordingly, it must not be entirely
annulled but merely reduced. This theory, if
adopted, will result in a complete abrogation of
articles 814 and 851 of the Civil Code. If every
case of institution of heirs may be made to fall into
the concept of legacies and betterments reducing
the bequest accordingly, then the provisions of
articles 814 and 851 regarding total or partial
nullity of the institution, would be absolutely
meaningless and will]l never have application at
all. And the remaining provisions contained in said
articles concerning the reduction of inofficious
legacies or betterments would be a surplusage
because they would be absorbed by article 817.
Thus, instead of construing, we would be
destroying integral provisions of the Civil Code.
The destructive effect of the theory thus advanced
is due mainly to a failure to distinguish institution
of heirs from legacies and betterments, and a
general from a special provision. With reference to
Article 814, which is the only provision material to
the disposition of this case, it must be observed
that the institution of heirs is therein dealt with a
thing separate and distinct from legacies or
betterment. And they are separate and distinct not
only because they are distinctly and separately
treated in said article but because they are in
themselves different. Institution of heirs is a
bequest by universal title of property that is
undetermined. Legacy refers to specific property
bequeathed by a particular or special title. . . But
again an institution of heirs cannot be taken as a
legacy," 25
The disputed order, we observe, declares the will in question
"a complete nullity". Article 854 of the Civil Code in turn
merely nullifies "the institution of heir." Considering,
however, that the will before us solely provides for the
institution of petitioner as universal heir, and nothing more,
the result is the same. The entire will is null.

51

Reyes vs. Barretodatu

When Bibiano Barretto died on February 18, 1936,
in the City of Manila, he left his share of these
properties in a will to Salud Barretto, mother of
plaintiff's wards, and Lucia Milagros Barretto and a
small portion as legacies to his two sisters Rosa
Barretto and Felisa Barretto and his nephew and
nieces. The usufruct of the fishpond situated in
barrio
San
Roque,
Hagonoy,
Bulacan,
abovementioned, however, was reserved for his
widow, Maria Gerardo. In the meantime, Maria
Gerardo was appointed administratrix. By virtue
thereof, she prepared a project of partition, which
was signed by her in her own behalf and as
guardian of the minor Milagros Barretto. Said
project of Partition was approved by the Court of
First Instance of Manila on November 22, 1939.
The distribution of the estate and the delivery of
the shares of the heirs followed forthwith. As a
consequence, Salud Barretto took immediate
possession of her share and secured the
cancellation of the original certificates of title and
the issuance of new titles in her own name.
Having thus lost this fight for a share in the estate
of Maria Gerardo, as a legitimate heir of Maria
Gerardo, plaintiff now falls back upon the remnant
of the estate of the deceased Bibiano Barretto,
which was given in usufruct to his widow Maria
Gerardo. Hence, this action for the recovery of
one-half portion thereof.
This action afforded the defendant an opportunity
to set up her right of ownership, not only of the
fishpond under litigation, but of all the other
properties willed and delivered to Salud Barretto,
for being a spurious heir, and not entitled to any
share in the estate of Bibiano Barretto, thereby
directly attacking the validity, not only of the
project of partition but of the decision of the court
based thereon as well.
The defendant contends that the Project of
Partition from which Salud acquired the fishpond
in question is void ab initio and Salud Barretto did
not acquire any valid title thereto, and that the
court did not acquire any jurisdiction of the person
of the defendant, who was then a minor.' "
Finding for the defendant (now appellee), Milagros Barretto,
the lower court declared the project of partition submitted in
the proceedings for the settlement of the estate of Bibiano
Barretto (Civil Case No. 49629 of the Court of First Instance
of Manila) to be null and void ab initio (not merely voidable)
because the distributee, Salud Barretto, predecessor of
plaintiffs (now appellants), was not a daughter of the
spouses Bibiano Barretto and Maria Gerardo. The nullity of
the project of partition was decreed on the basis of Article
1081 of the Civil Code of 1889 (then in force) providing as
follows:
"A partition in which a person was believed to be
an heir, without being so, has been included, shall
be null and void."
Plaintiffs-appellants correctly point out that Article 1081 of
the old Civil Code has been misapplied to the present case
by the court below. The reason is obvious: Salud Barretto
admittedly had been instituted heir in the late Bibiano
Barretto's last will and testament together with defendant
Milagros; hence, the partition had between them could not
be one such had with a party who was believed to be an heir
without really being one, and was not null and void under
said article. The legal precept (Article 1081) does not speak
of children, or descendants, but of heirs (without distinction
between forced, voluntary or intestate ones), and the fact
that Salud happened not to be a daughter of the testator
does not preclude her being one of the heirs expressly
named in his testament; for Bibiano Barretto was at liberty to
assign the free portion of his estate to whomsoever he
chose. While the share (1/2) assigned to Salud impinged on
the legitime of Milagros, Salud did not for that reason cease
to be a testamentary heir of Bibiano Barretto.
Nor does the fact that Milagros was allotted in her father's
will a share smaller than her legitime invalidate the institution
of Salud as heir, since there was here no preterition, or total
omission, of a forced heir. For this reason, Neri vs. Akutin,
72 Phil. 322, invoked by appellee, is not at all applicable,
that case involving an instance of preterition or omission of
children of the testator's former marriage.
It is thus apparent that where a court has validly issued a
decree of distribution of the estate, and the same has
become final, the validity or invalidity of the project of
partition becomes irrelevant.

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

In resume, we hold (1) that the partition had between Salud

and Milagros Barretto in the proceedings for the settlement
of the estate of Bibiano Barretto, duly approved by the Court
of First Instance of Manila in 1939, in its Civil Case No.
49629, is not void for being contrary to either articles 1081 or
1814 of the Civil Code of 1889; (2) that Milagros Barretto's
action to contest said partition and decree of distribution is
barred by the statute of limitations; and (3) that her claim
that plaintiff-appellant guardian is a possessor in bad faith
and should account for the fruits received from the
properties inherited by Salud Barretto (nee Lim Boco) is
legally untenable. It follows that the plaintiffs' action for
partition of the fishpond described in the complaint should
have been given due course.
Wherefore, the decision of the Court of First Instance of
Bulacan now under appeal is reversed and set aside in so
far as it orders plaintiff-appellant to reconvey to appellee
Milagros Barretto Datu the properties enumerated in said
decision, and the same is affirmed in so far as it denies any
right of said appellee to accounting. Let the records be
returned to the court of origin, with instructions to proceed
with the action for partition of the fishpond (Lot No. 4, Plan
Psu-4709), covered by TCT No. T-13734 of the Office of the
Register of Deeds of Bulacan, and for the accounting of the
fruits thereof, as prayed for in the complaint. No costs.
37. Esculin vs. Esculin
On the 19th of January, 1899, Emilio Antonio Escuin de los
Santos executed a will before a notary public of Sevilla,
Spain, stating therein that he was a native of Cavite, the son
of Francisco Escuin and Eugenia de los Santos, the latter
being deceased; that he was married about six months
previously to Maria Teresa Ponce de Leon, and that he had
no lawful descendants; the testator, however, stated in
clause three of his will, that in case he had a duly registered
successor, his child would be his sole and universal heir; but
that if, as would probably be the case, there should be no
such heir, then in clause four he named his said father
Francisco Escuin, and his wife Maria Teresa Ponce de Leon
his universal heirs, they to divide the estate in equal shares
between them.
The testator died on the 20th of January, 1899, as certified
to by the municipal court of Magdalena, Sevilla, on the 20th
of March, 1900.
On the 30th of September, 1905, the court below found that
Emilio Escuin y Batac was the recognized natural child of
the late Emilio Escuin de los Santos, had by Julia Batac; that
the testator was also the natural son of the defendant
Francisco Escuin and Eugenia de los Santos, and was
recognized by his father; and that the plaintiff minor, Emilio
Escuin y Batac, is one of the heirs of the late testator.
Upon the will having been admitted to probate,
commissioners were appointed to consider claims against
the estate, and, according to a report presented to the Court
of First Instance on the 20th of June, 1907, one claim was
allowed amounting to 3,696.50 pesetas.
It appears in the proposed partition of the 3d of September,
1906, that, according to the opinion of the administrator by
whom it was signed and the result of the proceedings, the
property left by the testator, in accordance with the accounts
passed upon by the court, amounted to P8,268.02
Deducting this amount from the funds
of the estate, there remains a balance of 5,014.81
That the said credit of P1,321.40, equivalent to 3,696.50
pesetas, allowed by the commissioners, is the only claim
presented within the legal term against the estate; that
Francisco Escuin, the father of the testator, his wife or
widow, Teresa Ponce de Leon, and his natural child, the
minor Emilio Escuin y Batac, represented by his mother and
guardian Julia Batac, are entitled to the succession; that, by
setting aside one-third of the estate in favor of the natural
son recognized in accordance with article 842 of the Civil
Code, there only remains the question as to how the
remaining two-thirds of the inheritance shall be bestowed,
taking into account the directions of the testator in his will;
that the same does not disclose that he had left any child by
his wife; that the latter, as the widow of the testator, besides
being a designated heir entitled to one-half of the hereditary
funds, is entitled to the usufruct of the portion fixed by the
law, and that the funds to be apportioned are composed
wholly of cash or ready money.
On the 30th of September, 1905, the court below found that
Emilio Escuin y Batac was the recognized natural child of
the late Emilio Escuin de los Santos, had by Julia Batac; that
the testator was also the natural son of the defendant
Francisco Escuin and Eugenia de los Santos, and was
recognized by his father; and that the plaintiff minor, Emilio
Escuin y Batac, is one of the heirs of the late testator.

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

Felix Balanay, Jr. appealed by certiorari from the order of the

Court of First Instance of Davao dated February 28, 1974,
declaring illegal and void the will of his mother, Leodegaria
Julian, converting the testate proceeding into an intestate
proceeding and ordering the issuance of the corresponding
notice to creditors (Special Case No. 1808). The
antecedents of the appeal are as follows:
Felix J. Balanay, Jr. filed in the lower court a petition dated
February 27, 1973 for the probate of his mothers notarial
will dated September 5, 1970 which is written in English. In
that will Leodegaria Julian declared (a) that she was the
owner of the "southern half" of nine conjugal lots (par. II); (b)
that she was the absolute owner of two parcels of land which
she inherited from her father (par. III), and (c) that it was her
desire that her properties should not be divided among her
heirs during her husbands lifetime and that their legitimes
should be satisfied out of the fruits of her properties (Par.
IV).

although she was a coowner thereof, her share was

inchoate and proindiviso (Art. 143, Civil Code; Madrigal and
Paterno vs. Rafferty and Concepcion, 38 Phil. 414). But that
illegal declaration does not nullify the entire will. It may be
disregarded.

Then, in paragraph V of the will she stated that after her

husbands death (he was eighty-two years old in 1973) her
paraphernal lands and all the conjugal lands (which she
described as "my properties") should be divided and
distributed in the manner set forth in that part of her will. She
devised and partitioned the conjugal lands as if they were all
owned by her. She disposed of in the will her husbands
one-half share of the conjugal assets. *

"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)"

Felix Balanay, Sr. and Avelina B. Antonio opposed the

probate of the will on the grounds of lack of testamentary
capacity, undue influence, preterition of the husband and
alleged improper partition of the conjugal estate. The
oppositors claimed that Felix Balanay, Jr. should collate
certain properties which he had received from the testatrix.

The testatrix in her will made a partition of the entire

conjugal estate among her six children (her husband had
renounced his hereditary rights and his one-half conjugal
share). She did not assign the whole estate to one or more
children as envisaged in article 1080. Hence, she had no
right to require that the legitimes be paid in cash. On the
other hand, her estate may remain undivided only for a
period of twenty years. So, the provision that the estate
should not be divided during her husbands lifetime would at
most be effective only for twenty years from the date of her
death unless there are compelling reasons for terminating
the coownership (Art. 1083, Civil Code).
Subject to the foregoing observations and the rules on
collation, the will is intrinsically valid and the partition therein
may be given effect if it does not prejudice the creditors and
impair the legitimes. The distribution and partition would
become effective upon the death of Felix Balanay, Sr. In the
meantime, the net income should be equitably divided
among the children and the surviving spouse.

Felix Balanay, Jr., in his reply to the opposition, attached

thereto an affidavit of Felix Balanay, Sr. dated April 18, 1973
wherein he withdrew his opposition to the probate of the will
and affirmed that he was interested in its probate. On the
same date Felix Balanay, Sr. signed an instrument
captioned "Conformation (sic) of Division and Renunciation
of Hereditary Rights" wherein he manifested that out of
respect for his wifes will he "waived and renounced" his
hereditary rights in her estate in favor of their six children. In
that same instrument he confirmed the agreement, which he
and his wife had perfected before her death, that their
conjugal properties would be partitioned in the manner
indicated in her will.
Montaa in his motion assailed the provision of the will
which partitioned the conjugal assets or allegedly effected a
compromise of future legitimes. He prayed that the probate
of the will be withdrawn and that the proceeding be
converted into an intestate proceeding. In another motion of
the same date he asked that the corresponding notice to
creditors be issued.
The basic issue is whether the probate court erred in
passing upon the intrinsic validity of the will, before ruling on
its allowance or formal validity, and in declaring it void.
We are of the opinion that in view of certain unusual
provisions of the will, which are of dubious legality, and
because of the motion to withdraw the petition for probate
(which the lower court assumed to have been filed with the
petitioners authorization), the trial court acted correctly in
passing upon the wills intrinsic validity even before its formal
validity had been established. The probate of a will might
become an idle ceremony if on its face it appears to be
intrinsically void. Where practical considerations demand
that the intrinsic validity of the will be passed upon, even
before it is probated, the court should meet the issue
(Nuguid vs. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare
with Sumilang vs. Ramagosa, L-23135, December 26, 1967,
21 SCRA 1369; Cacho vs. Udan, L-19996, April 30, 1965,
13 SCRA 693).
But the probate court erred in declaring in its order of
February 28, 1974 that the will was void and in converting
the testate proceeding into an intestate proceeding
notwithstanding the fact that in its order of June 18, 1973 it
gave effect to the surviving husbands conformity to the will
and to his renunciation of his hereditary rights which
presumably included his one-half share of the conjugal
estate.
The rule is that "the invalidity of one of several dispositions
contained in a will does not result in the invalidity of the other
dispositions, unless it is to he presumed that the testator
would not have made such other dispositions if the first
invalid disposition had not been made" (Art. 792, Civil Code).
"Where some of the provisions of a will are valid and others
invalid, the valid parts will be upheld if they can be separated
from the invalid without defeating the intention of the testator
or interfering with the general testamentary scheme, or
doing injustice to the beneficiaries" (95 C.J.S. 873).
The statement of the testatrix that she owned the "southern
half" of the conjugal lands is contrary to law because,

The provision of the will that the properties of the testatrix

should not be divided among her heirs during her husbands
lifetime but should be kept intact and that the legitimes
should be paid in cash is contrary to article 1080 of the Civil
Code which reads:
"ART. 1080.
Should a person
make a partition of his estate by an act
inter vivos, or by will, such partition shall
be respected, insofar as it does not
prejudice the legitime of the compulsory
heirs.

It should be stressed that by reason of the surviving

husbands conformity to his wifes will and his renunciation of
his hereditary rights, his one-half conjugal share be a part of
his deceased wifes estate. His conformity had the effect of
validating the partition made in paragraph V of the will
without prejudice, of course, to the rights of the creditors and
the legitimes of the compulsory heirs.
Article 793 of the Civil Code provides that "property acquired
after the making of a will shall only pass thereby, as if the
testator had possessed it at the time of making the will,
should it expressly appear by the will that such was his
intention". Under article 930 of the Civil Code "the legacy or
devise of a thing belonging to another person is void, if the
testator erroneously believed that the thing pertained to him.
But if the thing bequeathed, though not belonging to the
testator when he made the will, afterwards becomes his, by
whatever title, the disposition shall take effect."
In the instant case there is no doubt that the testatrix and her
husband intended to partition the conjugal estate in the
manner set forth in paragraph V of her will. It is true that she
could dispose of by will only her half of the conjugal estate
(Art. 170, Civil Code) but since the husband, after the
dissolution of the conjugal partnership, had assented to her
testamentary partition of the conjugal estate, such partition
has become valid, assuming that the will may be probated.
The instant case is different from the Nuguid case, supra,
where the testatrix instituted as heir her sister and preterited
her parents. Her will was intrinsically void because it
preterited her compulsory heirs in the direct line. Article 854
of the Civil Code provides that "the preterition or omission of
one, some, or all of the compulsory heirs in the direct line,
whether living at the time of the execution of the will or born
after the death of the testator, shall annul the institution of
heir; but the devises and legacies shall be valid insofar as
they are not inofficious." Since the preterition of the parents
annulled the institution of the sister of the testatrix and there
were no legacies and devises, total intestacy resulted (Art.
960[2], Civil Code).
In the instant case, the preterited heir was the surviving
spouse. His preterition did not produce intestacy. Moreover,
he signified his conformity to his wifes will and renounced
his hereditary rights.
It results that the lower court erred in not proceeding with the
probate of the will as contemplated in its uncancelled order
of June 18, 19713. Save in an extreme case where the will
on its face is intrinsically void, it is the probate courts duty to

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,

which was duly probated in the same Special Proceedings

No. 842, and concluding that total intestacy resulted.
ZONIA additionally assails the jurisdiction of the Trial Court
in declaring null and void the institution of heir in SOLANO's
will; in concluding that total intestacy resulted therefrom; and
distributing the shares of the parties in SOLANO's estate
when said estate was under the jurisdiction and control of
the Probate Court in Special Proceedings No. 842.
Normally, this would be the general rule. However, a
peculiar situation is thrust upon us here. It should be recalled
that SOLANO himself instituted the petition for probate of the
Will during his lifetime, That proceeding was not one to settle
the estate of a deceased person that would be deemed
terminated only upon the final distribution of the residue of
the hereditary estate. With the Will allowed to probate, the
case would have terminated except that it appears that the
parties, after SOLANO's death, continued to file pleadings
therein Secondly, upon motion of the GARCIAS, and over
the objection of ZONIA, the Trial Court ordered the
impleading of the estate of SOLANO and proceeded on that
basis. In effect, therefore, the two cases were consolidated.
The records further disclose that the action for recognition
(Civil Case No. 3956) and Spec. Procs. No. 842 were
pending before the same Branch of the Court and before the
same Presiding Judge. Thirdly, it is settled that the
allowance of a Will is conclusive only as to its due execution.
5 A probate decree is not concerned with the intrinsic validity
or legality of the provisions of the Will. 6
Thus, the Trial Court and the Appellate Court had jurisdiction
to conclude that, upon the facts, the GARCIAS and ZONIA
were in the same category as illegitimate children; that
ZONIA's acknowledgment as a "natural child" in a notarial
document executed by SOLANO and Trinidad Tuagnon on
December 22, 1943 was erroneous because at the time of
her birth in 1941, SOLANO was still married to Lilly Gorand,
his divorce having been obtained only in 1943, and,
therefore, did not have the legal capacity to contract
marriage at the time of ZONIA's conception, 7 that being
compulsory heirs, the GARCIAS were, in fact, preterited
from SOLANO's Last Will and Testament; and that as a
result of said preterition, the institution of ZONIA as sole heir
by SOLANO is null and void pursuant to Article 854 of the
Civil Code.
As provided in the foregoing provision, the disposition in the
Will giving the usufruct in favor of Trinidad Tuagnon over the
five parcels of land in Bantayan, Tabaco, Albay, is a legacy,
recognized in Article 563 of the Civil Code, 9 and should be
respected in so far as it is not inofficious. 10
Since the legitime of illegitimate children consists of one-half
(1/2) of the hereditary estate, 13 the GARCIAS and ZONIA
each have a right to participation therein in the proportion of
one-third (1/3) each. ZONIA's hereditary share will,
therefore, be 1/2 + (1/3 of 1/2) or 4/6 of the estate, while the
GARCIAS will respectively be entitled to 1/3 of 1/2 or 1/6 of
the value of the estate.
The case of Nuguid vs. Nuguid, et al., 14 reiterating the
ruling in Neri, et al. vs. Akutin, et al., 15 which held that
where the institution of a universal heir is null and void due
to preterition, the Will is a complete nullity and intestate
succession ensues, is not applicable herein because in the
Nuguid case, only a one-sentence Will was involved with no
other provision except the institution of the sole and
universal heir; there was no specification of individual
property; there were no specific legacies or bequests. It was
upon that factual setting that this Court declared:
Acain vs. CA
On May 29, 1984 petitioner Constantino Acain filed in the
Regional Trial Court of Cebu City Branch XIII, a petition for
the probate of the will of the late Nemesio Acain and for the
issuance to the same petitioner of letters testamentary,
docketed as Special Proceedings No. 591-A-CEB (Rollo, p.
29), on the premise that Nemesio Acain died leaving a will in
which petitioner and his brothers Antonio, Flores and Jose
and his sisters Anita, Concepcion, Quirina and Laura were
instituted as heirs. The will allegedly executed by Nemesio
Acain on February 17, 1960 was written in Bisaya (Rollo, p.
27) with a translation in English (Rollo, p. 31) submitted by
petitioner without objection raised by private respondents.
The will contained provisions on burial rites, payment of
debts, and the appointment of a certain Atty. Ignacio G.
Villagonzalo as the executor of the testament.
Obviously, Segundo pre-deceased Nemesio. Thus, it is the
children of Segundo who are claiming to be heirs, with
Constantino as the petitioner in Special Proceedings No.
591-A-CEB. After the petition was set for hearing in the
lower court on June 25, 1984 the oppositors (respondents
herein Virginia A. Fernandez, a legally adopted daughter
of the deceased and the latter's widow Rosa Diongson
Vda. de Acain) filed a motion to dismiss on the following

55

grounds: (1) the petitioner has no legal capacity to institute

these proceedings; (2) he is merely a universal heir and (3)
the widow and the adopted daughter have been preterited.
(Rollo, p. 158). Said motion was denied by the trial judge.
The pivotal issue in this case is whether or not private
respondents have been preterited.

entertained, particularly where appeal would not afford

speedy and adequate relief. (Maninang v. Court of Appeals,
supra).
PREMISES CONSIDERED, the petition is hereby DENIED
for lack of merit and the questioned decision of respondent
Court of Appeals promulgated on August 30, 1985 and its
Resolution dated October 23, 1985 are hereby AFFIRMED.

Article 854 of the Civil Code provides:

"Art. 854. The preterition or omission of one,
some, or all of the compulsory heirs in the direct
line, whether living at the time of the execution of
the will or born after the death of the testator, shall
annul the institution of heir; but the devisees and
legacies shall be valid insofar as they are not
inofficious.
If the omitted compulsory heirs should die before
the testator, the institution shall be effectual,
without prejudice to the right of representation."
Preterition consists in the omission in the testator's will of the
forced heirs or anyone of them either because they are not
mentioned therein, or, though mentioned, they are neither
instituted as heirs nor are expressly disinherited (Nuguid v.
Nuguid, 17 SCRA 450 [1966]; Maninang v. Court of Appeals,
114 SCRA 478 [1982]). Insofar as the widow is concerned,
Article 854 of the Civil Code may not apply as she does not
ascend or descend from the testator, although she is a
compulsory heir. Stated otherwise, even if the surviving
spouse is a compulsory heir, there is no preterition even if
she is omitted from the inheritance, for she is not in the
direct line. (Art. 854, Civil Code) However, the same thing
cannot be said of the other respondent Virginia A.
Fernandez, whose legal adoption by the testator has not
been questioned by petitioner (Memorandum for the
Petitioner, pp. 8-9). Under Article 39 of P.D. No. 603, known
as the Child and Youth Welfare Code, adoption gives to the
adopted person the same rights and duties as if he were a
legitimate child of the adopter and makes the adopted
person a legal heir of the adopter. It cannot be denied that
she was totally omitted and preterited in the will of the
testator and that both adopted child and the widow were
deprived of at least their legitime. Neither can it be denied
that they were not expressly disinherited. Hence, this is a
clear case of preterition of the legally adopted child.
Preterition annuls the institution of an heir and annulment
throws open to intestate succession the entire inheritance
including "la porcion libre (que) no hubiese dispuesto en
virtual de legado, mejora o donacion" (Manresa, as cited in
Nuguid v. Nuguid, supra, Maninang v. Court of Appeals, 114
SCRA [19821). The only provisions which do not result in
intestacy are the legacies and devises made in the will for
they should stand valid and respected, except insofar as the
legitimes are concerned.
The universal institution of petitioner together with his
brothers and sisters to the entire inheritance of the testator
results in totally abrogating the will because the nullification
of such institution of universal heirs - without any other
testamentary disposition in the will - amounts to a
declaration that nothing at all was written. Carefully worded
and in clear terms, Article 854 of the Civil Code offers no
leeway for inferential interpretation (Nuguid v. Nuguid),
supra. No legacies nor devises having been provided in the
will the whole property of the deceased has been left by
universal title to petitioner and his brothers and sisters. The
effect of annulling the institution of heirs will be, necessarily,
the opening of a total intestacy (Neri v. Akutin, 74 Phil. 185
[1943]) except that proper legacies and devises must, as
already stated above, be respected.
For private respondents to have tolerated the probate of the
will and allowed the case to progress when on its face the
will appears to be intrinsically void as petitioner and his
brothers and sisters were instituted as universal heirs
coupled with the obvious fact that one of the private
respondents had been preterited would have been an
exercise in futility. It would have meant a waste of time,
effort, expense, plus added futility. The trial court could have
denied its probate outright or could have passed upon the
intrinsic validity of the testamentary provisions before the
extrinsic validity of the will was resolved (Cayetano v.
Leonidas, supra; Nuguid v. Nuguid, supra). The remedies of
certiorari and prohibition were properly availed of by private
respondents.
Thus, this Court ruled that where the grounds for dismissal
are indubitable, the defendants had the right to resort to the
more speedy, and adequate remedies of certiorari and
prohibition to correct a grave abuse of discretion, amounting
to lack of jurisdiction, committed by the trial court in not
dismissing the case, (Vda. de Bacang v. Court of Appeals,
supra) and even assuming the existence of the remedy of
appeal, the Court harkens to the rule that in the broader
interests of justice, a petition for certiorari may be

XII. RESERVA TRONCAL

Art. 891. The ascendant who inherits from his
descendant any property which the latter may have
acquired by gratuitous title from another ascendant, or a
brother or sister, is obliged to reserve such property as
he may have acquired by operation of law for the benefit
of relatives who are within the third degree and who
belong to the line from which said property came. (871)
A number of Reservas and Reversions where allowed under
the old civil code but they were eliminated under the new
civil code leaving only the Reserva Troncal. The elimination
was in line with one of the principal objectives of the new
civil code in the law of succession; namely, to prevent the
estate from being entailed.
The following are some of the reasons for its abolition:
1. creates uncertainty in the pwnership of property, because
of the suspended ownership the reservista has no
enthusiasm to preserve or improve the property
2. confinement of property w/in a certain family for
generations incompatible with the principle of socialization of
ownership
3. reserve is limited to the legitimate members of the family,
and the father or mother of a natural child who inherits
property from this child, and who in turn acquired it from
snother progenitor acquires absolute dominion of the
property w/o reservation.
4. in reserve viudal, the surviving spouse is obliged to resrve
properties left by deceased spouse to his if she remarries,
but the concubine is not obliged, thus, giving ptotection to
illegitimate relation.
Purpose of Reserva troncal
a. Resrve certain property in favor of certain relatives.
b. maintain as is possible, with respect to the property to
which it refers, a separation between the paternal and
maternal lines, so that property of one line may not pass to
the other, or through them to strangers.
Nature of Reserva
It creates a double resolutory condition to which the right of
ownership of the person obliged to reserve is subjected. The
resolutory condition, are first, the death of the ascendant
obliged to reserve, and, second, the survivial at that moment
of the relatives within the tird degree belonging to the line
from which the property came.
No reserve will exist in favor of illegitimate relatives, because
the law has not used qualifying terms natural or illegitimate
with respect to the descendant or ascendant or relatives it is
to be presumed to refer only to legitimate ones.
Relatives within the third degree:
1st degree
1. father or mother only when no descendants,
2nd degree
2. grandparents of the line where thw property came,
brothers of full blood or half-blood
3rd degree
3. great GP, uncles by consanguinity full or half-blood, and
nephews and nieces of full or half blood.
38. Sienes vs. Esparcia
Appellants commence this action below to secure judgments
(1) declaring null and void the sale executed by Paulina and
Cipriana Yaeso in favor of appellees, the spouses Fidel
Esparcia and Paulina Sienes; (2) ordering the Esparcia
spouses to reconvey to appellants Lot 3368 of the Cadastral
Survey of Ayuquitan (now Amlan), Oriental Negros; and (3)
ordering all the appellees to pay, jointly and severally, to
appellants the sum of P500.00 as damages, plus the costs
of suit. In their answer appellees disclaimed any knowledge
or information regarding the sale allegedly made on April 20,
1951 by Andrea Gutang in favor of appellants and alleged
that if such sale was made, the same was void on the
ground that Andrea Gutang had no right to dispose of the
property subject matter thereof. They further alleged that
said property had never been in possession of appellants,
the truth being that appellees, as owners, had been in
continuous possession thereof since the death of Francisco
Yaeso. By way of affirmative defense and counterclaim, they
further alleged that on July 30, 1951, Paulina and Cipriana
Yaeso, as the only surviving heirs of Francisco Yaeso,
executed a public instrument of sale in favor of the spouses
Fidel Esparcia and Paulina Sienes, the said sale having
been registered together with an affidavit of adjudication
executed by Paulina and Cipriana on July 18, 1951, as sole
surviving heirs of the aforesaid deceased; that since then the
Esparcias had been in possession of the property as
owners.

56

From the above decision the Sienes spouses interposed the

present appeal, their principal contentions being, firstly, that
the lower court erred in holding that Lot 3368 of the
Cadastral Survey of Ayuquitan was a reservable property;
secondly, in annuling the sale of said lot executed by Andrea
Gutang in their favor; and lastly, in holding that Cipriana
Yaeso, as reservee, was entitled to inherit said land.
As held by the trial court, it is clear upon the facts already
stated, that the land in question was reservable property.
Francisco Yaeso inherited it by operation of law from his
father Saturnino, and upon Francisco's death, unmarried and
without descendants, it was inherited, in turn, by his mother,
Andrea Gutang. The latter was, therefore, under obligation
to reserve it for the benefit of relatives within the third degree
belonging to the line from which said property came, if any
survived her. The record discloses in this connection that
Andrea Gutang died on December 13, 1951, the lone
reservee surviving her being Cipriana Yaeso who died only
on January 13, 1952 (Exh. 10).
In connection with reservable property, the weight of opinion
is that the reserva creates two resolutory conditions, namely,
(1) the death of the ascendant obliged to reserve and (2) the
survival, at the time of his death, of relatives within the third
degree belonging to the line from which the property came
(6 Manresa 268-269; 6 Sanchez Roman 1934). The Court
has held in connection with this matter that the reservista
has the legal title and dominion to the reservable property
but subject to a resolutory condition; that he is like a life
usufructuary of the reservable property; that he may alienate
the same but subject to reservation, said alienation
transmitting only the revocable and conditional ownership of
the reservista, the rights acquired by the transferee being
revoked or resolved by the survival of reservatorios at the
time of death of the reservista (Edroso vs. Sablan, 25 Phil.,
295; Lunsod vs. Ortega, 46 Phil., 664; Florentino vs.
Florentino, 40 Phil., 480; and Director of Lands vs. Aguas,
63 Phil., 279).
The sale made by Andrea Gutang in favor of appellees was,
therefore, subject to the condition that the vendees would
definitely acquire ownership, by virtue of the alienation, only
if the vendor died without being survived by any person
entitled to the reservable property. Inasmuch as when
Andrea Gutang died, Cipriano Yaeso was still alive, the
conclusion becomes inescapable that the previous sale
made by the former in favor of appellants became of no legal
effect and the reservable property subject matter thereof
passed in exclusive ownership to Cipriana.
On the other hand, it is also clear that the sale executed by
the sisters Paulina and Cipriana Yaesco in favor of the
spouse Fidel Esparcia and Paulina Sienes was subject to a
similar resolutory condition. The reserve instituted by law in
favor of the heirs within the third degree belonging to the line
from which the reservable property came, constitutes a real
right which the reservee may alienate and dispose of, albeit
conditionally, the condition being that the alienation shall
transfer ownership to the vendee only if and when the
reservee survives the person obliged to reserve. In the
present case, Cipriana Yaeso, one of the reservees, was still
alive when Andrea Gutang, the person obliged to reserve,
died. Thus the former became the absolute owner of the
reservable property upon Andrea's death. While it may be
true that the sale made by her and her sister prior to this
event, became effective because of the occurrence of the
resolutory condition, we are not now in a position to reverse
the appealed decision, in so far as it orders the reversion of
the property in question to the Estate of Cipriana Yaeso,
because the vendees the Esparcia spouses did not
appeal therefrom.
WHEREFORE, the appealed decision as above modified
is affirmed, with costs, and without prejudice to whatever
action in equity the Esparcia spouses may have against the
Estate of Cipriana Yaeso for the reconveyance of the
property in question.
Florentino vs. Florentino
That Apolonio Isabelo Florentino II married the first time
Antonia Faz de Leon; that during the marriage he begot nine
children called Jose, Juan, Maria, Encarnacion, Isabel,
Espirita, Gabriel, Pedro, and Magdalena of the surname
Florentino y de Leon; that on becoming a widower he
married the second time Severina Faz de Leon with whom
he had two children, Mercedes and Apolonio III of the
surname Florentino y de Leon; that Apolonio Isabelo
Florentino II died on February 13, 1890; that he was
survived by his second wife Severina Faz de Leon and the
ten children first above mentioned; that his eleventh son,
Apolonio III, was born on the following 4th of March 1890.
That on January 17 and February 13, 1890, Apolonio
Isabelo Florentino executed a will before the notary public of
Ilocos Sur, instituting as his universal heirs his
aforementioned ten children, the posthumos ApoIonio III and
his widow Severina Faz de Leon; that he declared, in one of

the paragraphs of said will, all his property should be divided

among all of his children of both marriages.
That Apolonio Florentino III, the posthumos son of the
second marriage, died in 1891; that his mother, Severina
Faz de Leon, succeeded to all his property described in the
complaint; that the widow, Severina Faz de Leon died on
November 18, 1908, leaving a will instituting as her universal
heiress her only living daughter, Mercedes Florentino; that,
as such heir, said daughter took possession of all the
property left at the death of her mother, Severina Faz de
Leon; that among same is included the property, described
in the complaint, which the said Severina Faz de Leon
inherited from her deceased son, the posthumos Apolonio,
as reservable property; that, as a reservist, the heir of the
said Mercedes Florentino deceased had been gathering for
herself alone the fruits of lands described in the complaint;
that each and every one of the parties mentioned in said
complaint is entitled to one-seventh of the fruits of the
reservable property described therein, either by direct
participation or by representation, in the manner mentioned
in paragraph 9 of the complaint.
In order to decide whether the plaintiffs are or are not
entitled to invoke, in their favor, the provisions of article 811
of the Civil Code, and whether the same article is applicable
to the question of law presented in this suit, it is necessary to
determine whether the property enumerated in paragraph 5
of the complaint is of the nature of reservable property; and,
if so, whether in accordance with the provision of the Civil
Code in article 811, Severina Faz de Leon (the widow of the
deceased Apolonio Isabelo Florentino) who inherited said
property from her son Apolonio Florentino III (born after the
death of his father Apolonio Isabelo) had the obligation to
preserve and reserve same for the relatives, within the third
degree, of her aforementioned deceased son Apolonio III.
The posthumos son, Apolonio Florentino III, acquired the
property, now claimed by his brothers, by a lucrative title or
by inheritance from his aforementioned legitimate father,
Apolonio Isabelo Florentino II. Although said property was
inherited by his mother, Severina Faz de Leon,
nevertheless, she was in duty bound, according to article
811 of the Civil Code, to reserve the property thus acquired
for the benefit of the relatives, within the third degree, of the
line from which such property came.
According to the provisions of law, ascendants do not inherit
the reservable property, but its enjoyment, use or trust,
merely for the reason that said law imposes the obligation to
reserve and preserve same for certain designated persons
who, on the death of the said ascendants-reservists, (taking
into consideration the nature of the line from which such
property came) acquire the ownership of said property in fact
and by operation of law in the same manner as forced heirs
(because they are also such) said property reverts to said
line as long as the aforementioned persons who, from the
death of the ascendantreservists, acquire in fact the right of
reservatarios (persons for whom property is reserved), and
are relatives, within the third degree, of the descendant from
whom the reservable property came.
Any ascendant who inherits from his descendant any
property, while there are living, within the third degree,
relatives of the latter, is nothing but a life usufructuary or a
fiduciary of the reservable property received. He is, however,
the legitimate owner of his own property which is not
reservable, property and which constitutes his legitime,
according to article 809 of the Civil Code. But if, afterwards,
all of the relatives, within the third degree, of the descendant
(from whom came the reservable property) die or disappear,
the said property becomes free property, by operation of
law, and is thereby converted into the legitime of the
ascendant heir who can transmit it at his death to his
legitimate successors or testamentary heirs. This property
has now lost its nature of reservable property, pertaining
thereto at the death of the relatives, called reservatarios,
who belonged within the third degree to the line from which
such property came.
Following the order prescribed by law in legitimate
succession, when there are relatives of the descendant
within the third degree, the right of the nearest relative,
called reservatario, over the property which the reservista
(person holding it subject to reservation) should return to
him, excludes that of the one more remote. The right of
representation cannot be alleged when the one claiming
same as a reservatario of the reservable property is not
among the relatives within the third degree belonging to the
line from which such property came, inasmuch as the right
granted by the Civil Code in article 811 is in the highest
degree personal and for the exclusive benefit of designated
persons who are the relatives, within the third degree, of the
person from whom the reservable property came. Therefore,
relatives of the fourth and the succeeding degrees can never
be considered as reservatarios, since the law does not
recognize them as such.
In spite of what has been said relative to the right of
representation on the part of one alleging his right as
reservatario who is not within the third degree of
relationship, nevertheless there is right of representation on
the part of reservatarios who are within the third degree,
mentioned by law, as in the case of nephews of the
deceased person from whom the reservable property came.

57

These reservatarios have the right to represent their

ascendants (fathers and mothers) who are the brothers of
the said deceased person and relatives within the third
degree in accordance with article 811 of the Civil Code.
There are then seven "reservatarios" who are entitled to the
reservable property left at the death of Apolonio III; the
posthumos son of the aforementioned Apolonio Isabelo II, to
wit, his three children of his first marriage- Encarnacion,
Gabriel, Magdalena; his three children, Jose, Espirita and
Pedro who are represented by their own twelve children
respectively; and Mercedes Florentino, his daughter by a
second marriage. All of the plaintiffs are the relatives of the
deceased posthumos son, Apolonio Florentino III, within the
third degree (four of whom being his half-brothers and the
remaining twelve being his nephews as they are the children
of his three half-brothers). As the first four are his relatives
within the third degree in their own right and the other twelve
are such by representation, all of them are indisputably
entitled as reservatarios to the property which came from the
common ancestor, Apolonio Isabelo, to Apolonio Florentino
III by inheritance during his life-time, and in turn by
inheritance to his legitimate mother, Severina Faz de Leon,
widow of the aforementioned Apolonio Isabelo Florentino II.
The judgment appealed from is also founded on the theory
that article 811 of the Civil Code does not destroy the
system of legitimate succession and that the pretension of
the plaintiffs to apply said article in the instant case would be
permitting the reservable right to reduce and impair the
forced legitime which exclusively belongs to the defendant
Mercedes Florentino, in violation of the precept of article 813
of the same Code which provides that the testator cannot
deprive his heirs of their legitime, except in the cases
expressly determined by law. Neither can he impose upon it
any burden, condition, or substitution of any kind
whatsoever, saving the provisions concerning the usufruct of
the surviving spouse, citing the decision of the Supreme
Court of Spain of January 4, 1911.
The principal question submitted to the court for decision
consists mainly in determining whether the property left at
the death of Apolonio III, the posthumos son of Apolonio
Isabelo II, was or was not invested with the character of
reservable property when it was received by his mother,
Severina Faz de Leon.
The property enumerated by the plaintiffs in paragraph 5 of
their complaint came, without any doubt whatsoever, from
the common ancestor Apolonio Isabelo II, and when, on the
death of Apolonio III without issue, the same passed by
operation of law into the hands of his legitimate mother,
Severina Faz de Leon, it became reservable property, in
accordance with the provision of article 811 of the Code,
with the object that the same should not fall into the
possession of persons other than those comprehended
within the order of succession traced by the law from
Apolonio Isabelo II, the source of said property. If this
property was in fact clothed with the character and condition
of reservable property when Severina Faz de Leon inherited
same from her son Apolonio, III, she did not thereby acquire
the dominion or right of ownership but only the right of
usufruct or of fiduciary, with the necessary obligation to
preserve and to deliver or return it as such reservable
property to her deceased son's relatives within the third
degree, among whom is her daughter, Mercedes Florentino.
Reservable property neither comes, nor falls under, the
absolute dominion of the ascendant who inherits and
receives same from his descendant, therefore it does not
form part of his own property nor become the legitimate of
his forced heirs. It becomes his own property only in case
that all the relatives of his descendant shall have died
(reservista), in which case said reservable property losses
such character.
With full right Severina Faz de Leon could have disposed in
her will of all her own property in favor of her only living
daughter, Mercedes Florentino, as forced heiress. But
whatever provision there is in her will concerning the
reservable property received from her son Apolonio III, or
rather, whatever provision will reduce the rights of the other
reservatarios, the half brothers and nephews of her daughter
Mercedes, is unlawful, null and void, inasmuch as said
property is not her own and she has only the right of usufruct
or of fiduciary, with the obligation to preserve and to deliver
same to the reservatarios, one of whom is her own daughter,
Mercedes Florentino.
For this reason, in no manner can it be claimed that the
legitime of Mercedes Florentino, coming from the in
heritance of her mother Severina Faz de Leon, has been
reduced and impaired; and the application of article 811 of
the Code to the instant case in no way prejudices the rights
of the defendant Mercedes Florentino, inasmuch as she is
entitled to a part only of the reservable property, there being
no lawfull or just reason which serves as real foundation to
disregard the right to Apolonio III's other relatives, within the
third degree, to participate in the reservable property in
question. As these relatives are at present living, claiming for
it with an indisputable right, we cannot find any reasonable
and lawful motive why their rights should not be upheld and
why they should not be granted equal participation with the
defendant in the litigated property.

Just because she has a forced heiress, with a right to her

inheritance, does not relieve Severina of her obligation to
reserve the property which she received from her deceased
son, nor did same lose the character of reservable property,
held before the reservatarios received same
For the foregoing reasons it follows that with the reversal of
the order of decision appealed from we should declare, as
we hereby do, that the aforementioned property, inherited by
the deceased Severina Faz de Leon from her son Apolonio
Florentino III, is reservable property; that the plaintiffs, being
relatives of the deceased Apolonio III within the third degree,
are entitled to six-sevenths of said reoervable property; that
the defendant Mercedes is entitled to the remaining seventh
part thereof; that the latter, together with her husband Angel
Encarnacion, shall deliver to the plaintiffs, jointly, sixsevenths of the fruits or rents, claimed from said portion of
the land and of the quantity claimed, from January 17, 1918,
until fully delivered; and that the indemnity for one thousand
pesos (P1,000) prayed for in the complaint is denied, without
special findings as to the costs of both instances. So
ordered.
Chua vs. CFI
It appears that in the first marriage of Jose Frias Chua with
Patricia S. Militar alias Sy Quio, he sired three children,
namely: Ignacio, Lorenzo and Manuel, all surnamed Frias
Chua. When Patricia S. Militar died, Jose Frias Chua
contracted a second marriage with Consolacion de la Torre
with whom he had a child by the name of Juanito Frias
Chua. Manuel Frias Chua died without leaving any issue.
Then in 1929, Jose Frias Chua died intestate leaving his
widow Consolacion de la Torre and his son Juanito Frias
Chua of the second marriage and sons Ignacio Frias Chua
and Lorenzo Frias Chua of his first marriage. In Intestate
Proceeding No. 4816, the lower court issued an order dated
January 15, 1931 1 adjudicating, among others, the onehalf (1/2) portion of Lot No. 399 and the sum of P8,000.00 in
favor of Jose Frias Chua's widow, Consolacion de la Torre,
the other half of Lot No. 399 in favor of Juanito Frias Chua,
his son in the second marriage; marriage; P3,000.00 in favor
of Lorenzo Frias Chua; and P1,550.00 in favor of Ignacio
Frias, Chua , his sons in the second marriage; By the virtue
of said adjudication, Transfer Certificate of Title No. TR-980
(14483) 2 dated April 28, 1932 was issued by the Register
of Deeds in the names of Consolacion de la Torre and
Juanito Frias Chua as owners-pro-indiviso of Lot No. 339.
On February 27, 1952, Juanito Frias Chua of the second
marriage died intestate without any issue. After his death, is
mother Consolacion de la Torre succeeded to his proindiviso share of her son Juanito as a result of which
Transfer Certificate of Title No. 31796 covering the whole
Lot No. 399 was issued in her name. Then on March 5,
1966, Consolacion de la Torre died intestate leaving no
direct heir either in the descending or ascending line except
her brother and sisters.
on May 11, 1966 before the respondent Court of First
Instance of Negros Occidental, Branch V, praying that the
one-half (1/2) portion of Lot No. 399 which formerly
belonged to Juanito Frias Chua but which passed to
Consolacion de la Torre upon the latter's death, be declared
as reservable property for the reason that the lot in question
was subject to reserva troncal pursuant to Article 981 of the
New Civil code. private respondent as administratrix of the
estate of the Consolacion de la Torre and the heirs of the
latter traversed individually the complaint of petitioners. 4
On July 29, 1968, the respondent Court rendered a decision
dismissing the complaint of petitioners. Hence this instant
petition.
The pertinent provision on reserva troncal under the New
Civil Code provides:
"ART. 891.
The ascendant who
inherits from his descendant any
property which the latter may have
required by gratuitous title from another
ascendant, or a brother or sister, is
obliged to reserve such property as he
may have acquired by operation of law
for the benefit of relatives who are within
the third degree and belong to the line
Iron which said property came."
Pursuant to the foregoing provision, in order that a property
may be impressed with a reservable character the following
requisites must exist, to wit: (1) that the property was
acquired by a descendant from an ascendant or from a
brother or sister by gratuitous title; (2) that said descendant
died without an issue: (3) that the property is inherited by
another ascendant by operation of law; and (4) that there are
relatives within the third degree belonging to the line from
which said property came. 5 In the case before Us, all of the
foregoing requisites are present. Thus, as borne out by the

58

records, Juanito Frias Chua of the second marriage died

intestate in 1952; he died without leaving any issue; his proindiviso of 1/2 share of Lot No. 399 was acquired by his
mother, Consolacion de la Torre by operation of law. When
Consolacion de la Torre died, Juanito Frias Chua who died
intestate had relatives within the third degree. These
relatives are Ignacio Frias Chua and Dominador Chua and
Remedios Chua, the supposed legitimate children of the
deceased Lorenzo Frias Chua, who are the petitioners
herein.
The crux of the problem in instant petition is focused on the
first requisite of reserva troncal whether the property in
question as acquired by Juanito Frias Chua from his father,
Jose Frias Chua, gratuitously or not. In resolving this point,
the respondent Court said:
We are not prepared to sustain the respondent Court's
conclusion that the lot in question is not subject to a reserva
troncal under Art. 891 of the New Civil Code. It is, As
explained by Manresa which this Court quoted with approval
in Cabardo v. Villanueva, 44 Phil. 186, "The transmission is
gratuitous or by gratuitous title when the recipient does not
give anything in return." It matters not whether the property
transmitted be or be not subject to any prior charges; what is
essential is that the transmission be made gratuitously, or by
an act of mere liberality of the person making it, without
imposing any obligation on the part of the recipient; and that
the person receiving the property gives or does nothing in
return; or, as ably put by an eminent Filipino commentator,
6 "the essential thing is that the person who transmits it does
so gratuitously, from pure generosity, without requiring from
the transferee any prestation." It is evident from the record
that the transmission of the property in question to Juanito
Frias Chua of the second marriage upon the death of his
father Jose Frias Chua was by means of a hereditary
succession and therefore gratuitous.
But the obligation of paying the Standard Oil Co. of New
York the amount of P3,971.20 is imposed upon Consolacion
de la Torre and Juanito Frias Chua not personally by the
deceased Jose Frias Chua in his last will and testament but
by an order of the court in the Testate Proceeding No. 4816
dated January 15, 1931. As long as the transmission of the
property to the heirs is free from any condition imposed by
the deceased himself and the property is given out of pure
generosity, it is gratuitous. It does not matter if later the court
orders one of the heirs, in this case Juanito Frias Chua, to
pay the Standard Oil Co. of New York the amount of
P3,971.20 This does not change the gratuitous nature of the
transmission of the property to him. As far as the deceased
Jose Frias Chua is concerned the transmission of the
property to his heirs is gratuitous. This being the case the lot
in question is subject to reserva troncal under Art. 891 of the
New Civil Code.
De papa vs. Camacho
They stipulate that Romana Tioco during her lifetime
gratuitously donated four (4) parcels of land to her niece
Toribia Tioco (legitimate sister of plaintiffs), which parcels of
land are presently covered by Transfer Certificates of Title
Nos. A-64165, 64166 and 64167 of the Registry of Deeds of
Manila, copies of which are attached to this stipulation as
Annexes 'B', 'B-1', and 'B-2'.
They stipulate that Toribia Tioco died intestate in 1915,
survived by her husband, Eustacio Dizon, and their two
legitimate children, Faustino Dizon and Trinidad Dizon
(mother of defendant Dalisay D. Tongko-Camacho) and
leaving the afore-mentioned four (4) parcels of land as the
inheritance of her said two children in equal pro-indiviso
shares.
They stipulate that in 1937, Faustino Dizon died intestate,
single and without issue, leaving his one-half (1/2) proindiviso share in the seven (7) parcels of land abovementioned to his father, Eustacio Dizon, as his sole intestate
heir, who received the said property subject to a reserva
troncal which was subsequently annotated on the Transfer
Certificates of Title Annexes 'B', 'B-l', 'B-2', 'C' and 'C-1'.
They stipulate that in 1939 Trinidad Dizon-Tongko died
intestate, and her rights and interests in the parcels of land
abovementioned were inherited by her only legitimate child,
defendant Dalisay D. Tongko-Camacho, subject to the
usufructuary right of her surviving husband, defendant Primo
Tongko. They stipulate that on June 14, 1965, Eustacio
Dizon died intestate, survived his only legitimate
descendant, defendant Dalisay D. Tongko-Camacho.
The parties agree that defendant Dalisay D. TongkoCamacho now owns one-half (1/2) of all the seven (7)
parcels of land abovementioned as her inheritance from her
mother, Trinidad Dizon-Tongko.
The parties hereby agree to submit for judicial determination
in this case the legal issue of whether defendant Dalisay D.

Tongko-Camacho is entitled to the whole of the seven (7)

parcels of land in question, or whether the plaintiffs, as third
degree relatives of Faustino Dizon are reservatarios
(together with said defendant) of the one-half pro-indiviso
share therein which was inherited by Eustacio Dizon from
his son Faustino Dizon, and entitled to three-fourths (3/4) of
said one-half pro-indiviso share, or three-eights (3/8) of said
seven (7) parcels of land, and, therefore, to three eights
(3/8) of the rentals collected and to be collected by
defendant Dalisay P. Tongko Camacho from the tenants of
said parcels of land, minus the expenses and/or real estate
taxes corresponding to plaintiffs' share in the rentals.
In view of the fact that the parties are close blood relatives
and have acted upon legal advice in pursuing their
respective claims, and in order to restore and preserve
harmony in their family relations, they hereby waive all their
claims against each other for damages (other than legal
interest on plaintiffs' share in the rentals which this
Honorable Court may deem proper to award), attorney's fees
and expenses of litigation which shall be borne by the
respective parties." 1
The issue raised is whether, as contended by the plaintiffsappellees and ruled by the lower Court, all relatives of the
praepositus within the third degree in the appropriate line
succeed without distinction to the reservable property upon
the death of the reservista, as seems to be implicit in Art.
891 of the Civil Code, which reads: or, as asserted by the
defendant-appellant, the rights of said relatives are subject
to, and should be determined by, the rules on intestate
succession.
That question has already been answered in Padura vs.
Baldovino, 3 where the reservatario was survived by eleven
nephews and nieces of the praepositus in the line of origin,
four of whole blood and seven of half blood, and the claim
was also made that all eleven were entitled to the
reversionary property in equal shares. This Court, speaking
through Mr. Justice J.B.L. Reyes, declared the principles of
intestacy to be controlling, and ruled that the nephews and
nieces of whole blood were each entitled to a share double
that of each of the nephews and nieces of half blood in
accordance with Article 1006 of the Civil Code.
"The issue in this appeal may be formulated as follows: In a
case of reserva troncal where the only reservatarios
(reserves) surviving the reservista, and belonging to the line
of origin, are nephews of the descendant (prepositus), but
some are nephews of the half blood and the others are
nephews of the whole blood, should the reserved properties
be apportioned among them equally, or should the nephews
of the whole blood take a share twice as large as that of the
nephews of the half blood?
The case is one of first impression and has divided the
Spanish commentators on the subject. After mature
reflection, we have concluded that the position of the
appellants is correct. The reserva troncal is a special rule
designed primarily to assure the return of the reservable
property to the third degree relatives belonging to the line
from which the property originally came, and avoid its being
dissipated into and by the relatives of the inheriting
ascendant (reservista).
"Following the order prescribed by law in legitimate
succession when there are relatives of the descendant
within the third degree, the right of the nearest relative,
called reservatario, over the property which the reservista
(person holding it subject to reservation) should return to
him, excludes that of the one more remote. The right of
representation cannot be alleged when the one claiming
same as a reservatario of the reservable property is not
among the relatives within the third degree belonging to the
line from which such property came, inasmuch as the right
granted by the Civil Code in Article 811 is in the highest
degree personal and for the exclusive benefit of designated
persons who are within the third degree of the person from
whom the reservable property came. Therefore, relatives of
the fourth and the succeeding degrees can never be
considered as reservatarios, since the law does not
recognize them as such.
"In spite of what has been said relative to the right of
representation on the part of one alleging his right as
reservatario who is not within the third degree of
relationship, nevertheless there is right of representation on
the part of reservatarios who are within the third degree
mentioned by law, as in the case of nephews of the
deceased person from whom the reservable property came .
. ."
Proximity of degree and right of representation are basic
principles of ordinary intestate succession; so is the rule that
whole blood brothers and nephews are entitled to a share
double that of brothers and nephews of half blood. If in
determining the rights of the reservatarios inter se, proximity
of degree and the right of representation of nephews are

59

made to apply, the rule of double share for immediate

collaterals of the whole blood should be likewise operative.
In other words, the reserva troncal merely determines the
group of relatives (reservatarios) to whom the property
should be returned; but within that group, the individual right
to the property should be decided by the applicable rules of
ordinary intestate succession, since Art. 891 does not
specify otherwise. This conclusion is strengthened by the
circumstance that the reserva being an exceptional case, its
application should be limited to what is strictly needed to
accomplish the purpose of the law.
Reversion of the reservable property being governed by the
rules on intestate succession, the plaintiffs-appellees must
be held without any right thereto because, as aunt and
uncles, respectively, of Faustino Dizon (the praepositus),
they are excluded from the succession by his niece, the
defendant-appellant, although they are related to him within
the same degree as the latter.
It will be seen that under the preceding articles, brothers and
sisters and nephews and nieces inherited ab intestato ahead
of the surviving spouse, while other collaterals succeeded
only after the widower or widow. The present Civil Code of
the Philippines merely placed the spouse on a par with the
nephews and nieces and brothers and sisters of the
deceased, but without altering the preferred position of the
latter vis a vis the other collaterals."
This conclusion is fortified by the observation, also made in
Padura, supra, that as to the reservable property, the
reservatarios do not inherit from the reservista, but from the
descendant praepositus:
". . . It is likewise clear that the reservable property is no part
of the estate of the reservista, who may not dispose of it by
will, as long as there are reservatarios existing (Arroyo vs.
Gerona, 58 Phil. 237). The latter, therefore, do not inherit
from the reservista, but from the descendant prepositus, of
whom the reservatarios are the heirs mortis causa, subject
to the condition that they must survive the reservista.
"The contention that an intestacy proceeding is still
necessary rests upon the assumption that the reservatario
will succeed in, or inherit, the reservable property from the
reservista. This is not true. The reservatario is not the
reservista's successor mortis causa nor is the reservable
property part of the reservista's estate; the reservatario
receives the property as a conditional heir of the descendant
(prepositus), said property merely reverting to the line of
origin from which it had temporarily and accidentally strayed
during the reservista's lifetime. The authorities are all agreed
that there being reservatarios that survive the reservista, the
matter must be deemed to have enjoyed no more than a life
interest in the reservable property.
It is a consequence of these principles that upon the death
of the reservista, the reservatario nearest to the prepositus
(the appellee in this case) becomes, automatically and by
operation of law, the owner of the reservable property. As
already stated, that property is no part of the estate of the
reservista, and does not even answer for the debts of the
latter . . ."
Had the reversionary property passed directly from the
praepositus, there is no doubt that the plaintiffs-appellees
would have been excluded by the defendant-appellant under
the rules of intestate succession. There is no reason why a
different result should obtain simply because "the
transmission of the property was delayed by the interregnum
of the reserva;" 6 i.e., the property took a "detour" through
an ascendant thereby giving rise to the reservation
before its transmission to the reservatario. Upon the
stipulated facts, and by virtue of the rulings already cited, the
defendant-appellant Dalisay Tongko-Camacho is entitled to
the entirety of the reversionary property to the exclusion of
the plaintiffs-appellees.
XIV. RESERVA ADOPTIVA
P.D. 603; Art. 39. Effects of Adoption. - The adoption
shall:
(1) Give to the adopted person the same rights
and duties as if he were a legitimate child of
the adopter: Provided, That an adopted child
cannot acquire Philippine citizenship by virtue
of such adoption:
(2) Dissolve the authority vested in the natural
parent or parents, except where the adopter is
the spouse of the surviving natural parent;
(3) Entitle the adopted person to use the
adopter's surname; and
(4) Make the adopted person a legal heir of the
adopter: Provided, That if the adopter is
survived by legitimate parents or ascendants
and by an adopted person, the latter shall not
have more successional rights than an
acknowledged natural child: Provided, further,

That any property received gratuitously by the

adopted from the adopter shall revert to the
adopter should the former predecease the
latter without legitimate issue unless the
adopted has, during his lifetime, alienated
such property: Provided, finally, That in the
last case, should the adopted leave no
property other than that received from the
adopter, and he is survived by illegitimate
issue or a spouse, such illegitimate issue
collectively or the spouse shall receive onefourth of such property; if the adopted is
survived by illegitimate issue and a spouse,
then the former collectively shall receive onefourth and the latter also one-fourth, the rest in
any case reverting to the adopter, observing in
the case of the illegitimate issue the proportion
provided for in Article 895 of the Civil Code.
The adopter shall not be a legal heir of the adopted
person, whose parents by nature shall inherit from him,
except that if the latter are both dead, the adopting
parent or parents take the place of the natural parents in
the line of succession, whether testate or interstate.

Teotica vs. Del Val Chan

Maria Mortera y Balsalobre Vda. de Aguirre died on July 14,
1955 in the City of Manila leaving properties worth
P600,000.00. She left a will written in Spanish which she
executed at her residence in No. 2 Legarda St., Quiapo,
Manila. She affixed her signature at the bottom of the will
and on the left margin of each and every page thereof in the
presence of Pilar Borja, Pilar G. Sanchez, and Modesto
Formilleza, who in turn affixed their signatures below the
attestation clause and on the left margin of each and every
page of the will in the presence of the testatrix and of each
other. Said will was acknowledged before Notary Public
Niceforo S. Agaton by the testatrix and her witnesses.
Among the many legacies and devises made in the will was
one of P20,000.00 to Rene A. Teotico, married to the
testatrix's niece named Josefina Mortera. To said spouses
the testatrix left the usufruct of her interest in the Calvo
building, while the naked ownership thereof she left in equal
parts to her grandchildren who are the legitimate children of
said spouses. The testatrix also instituted Josefina Mortera
as her sole and universal heir to all the remainder of her
properties not otherwise disposed of in the will.
Ana del Val Chan, claiming to be an adopted child of
Francisca Mortera, a deceased sister of the testatrix, as well
as an acknowledged natural child of Jose Mortera, a
deceased brother of the same testatrix, filed on September
2, 1955 an opposition to the probate of the will alleging the
following grounds: (1) said will was not executed as required
by law; (2) the testatrix was physically and mentally
incapable to execute the will at the time of its execution; and
(3) the will was executed under duress, threat or influence of
fear.
After the parties had presented their evidence, the probate
court rendered its decision on November 10, 1960 admitting
the will to probate but declaring the disposition made in favor
of Dr. Rene Teotico void with the statement that the portion
to be vacated by the annulment should pass to the testatrix's
heirs by way of intestate succession.
The motions for reconsideration above adverted to having
been denied, both petitioner and oppositor appealed from
the decision, the former from that portion which nullifies the
legacy in favor of Dr. Rene Teotico and declares the vacated
portion as subject of succession in favor of the legal heirs,
and the latter from that portion which admits the will to
probate. And in this instance both petitioner and oppositor
assign several error which, stripped of non-essentials, may
be boiled down to the following: (1) Has oppositor Ana del
Val Chan the right to intervene in this proceeding?; (2) Has
the will in question been duly admitted to probate?; and (3)
Did the probate court commit an error in passing on the
intrinsic validity of the provisions of the will and in
determining who should inherit the portion to be vacated by
the nullification of the legacy made in favor of Dr. Rene
Teotico?
It is a well-settled rule that in order that a person may be
allowed to intervene in a probate proceeding he must have
an interest in the estate, or in the will, or in the property to be
affected by it either as executor or as a claimant of the
estate (Ngo The Hua vs. Chung Kiat Hua, et al., L-17091,
September 30, 1963); and an interested party has been
defined as one who would be benefitted by the estate such
as an heir or one who has a claim against the estate like a
creditor (Idem.). On the other hand, in Saguinsin vs.
Lindayag, et al., L-17750, December 17, 1962, this Court
said:

60

"According to Section 2, Rule 80 of the Rules of Court, a

petition for letters of administration must be filed by an
'interested person.' An interested party has been defined in
this connection as one who would be benefitted by the
estate, such as an heir, or one who has a claim against the
estate, such as a creditor (Intestate Estate of Julio
Magbanwa 40 O.G., 1171). And it is well settled in this
jurisdiction that in civil actions as well as special
proceedings, the interest required in order that a person may
be a party thereto must be material and direct, and not
merely indirect or contingent. (Trillana vs. Crisostomo, G. R.
No. L-3370, August 22, 1951; Rapinosa vs. Barrion, 70 Phil.
311)."
The question now may be asked: Has oppositor any interest
in any of the provisions of the will, and, in the negative,
would she acquire any right to the estate in the event that
the will is denied probate?

decided by this Court in a long line of decisions among

which the following may be cited: "Opposition to the intrinsic
validity or legality of the provisions of the will cannot be
entertained in probate proceeding because its only purpose
is merely to determine if the will has been executed in
accordance with the requirements of the law."
"To establish conclusively as against everyone, and once for
all, the facts that a will was executed with the formalities
required by law and that the testator was in a condition to
make a will, is the only purpose of the proceedings under the
new code for the probate of a will. (Sec. 625.) The judgment
in such proceedings determines and can determine nothing
more. In them the court has no power to pass upon the
validity of any provisions made in the will. It can not decide,
for example, that a certain legacy is void and another one
valid."
II. DISINHERITANCE

Under the terms of the will, oppositor has no right to

intervene because she has no interest in the estate either as
heir, executor, or administrator, nor does she have any claim
to any property affected by the will, because it nowhere
appears therein any provision designating her as heir,
legatee or devisee of any portion of the estate. She has also
no interest in the will either as administratrix or executrix.
Neither has she any claim against any portion of the estate
because she is not a co-owner thereof, and while she
previously had an interest in the Calvo building located in
Escolta, she had already disposed of it long before the
execution of the will.
"'Between the natural child and the legitimate relatives of the
father or mother who acknowledged it, the Code denies any
right of succession. They cannot be called relatives and they
have no right to inherit. Of course, there is a blood tie, but
the law does not recognize it. In this, article 943 is based
upon the reality of the facts and upon the presumptive will of
the interested parties; the natural child is disgracefully
looked down upon by the legitimate family; the legitimate
family is, in turn, hated by the natural child; the latter
considers the privileged condition of the former and the
resources of which it is thereby deprived; the former, in turn,
sees in the natural child nothing but the product of sin, a
palpable evidence of a blemish upon the family. Every
relation is ordinarily broken in life; the law does no more
them recognize this truth, by avoiding further grounds of
resentment.' (7 Manresa, 3d ed., p. 110.)"
The oppositor cannot also derive comfort from the fact that
she is an adopted child of Francisca Mortera because under
our law the relationship established by adoption is limited
solely to the adopter and the adopted does not extend to the
relatives of the adopting parents or of the adopted child
except only as expressly provided for by law. Hence, no
relationship is created between the adopted and the
collaterals of the adopting parents. As a consequence, the
adopted is an heir of the adopter but not of the relatives of
the adopter.
"The relationship established by the adoption, however, is
limited to the adopting parent, and does not extend to his
other relatives, except as expressly provided by law. Thus,
the adopted child cannot be considered as a relative of the
ascendants and collaterals of the adopting parents, nor of
the legitimate children which they may have after the
adoption, except that the law imposes certain impediments
to marriage by reason of adoption. Neither are the children
of the adopted considered as descendants of the adopter.
The relationship created is exclusively between, the adopter
and the adopted, and does not extend to the relatives of
either." (Tolentino, Civil Code of the Philippines, Vol. 1, p.
652)
We have examined the evidence on the matter and we are
fully in accord with the foregoing observation. Moreover, the
mere claim that Josefina Mortera and her husband Rene
Teotico had the opportunity to exert pressure on the testatrix
simply because she lived in their house several years prior
to the execution of the will and that she was old and
suffering from hypertension in that she was virtually isolated
from her friends for several years prior to her death is
insufficient to disprove what the instrumental witnesses had
testified that the testatrix freely and voluntarily and with full
consciousness of the solemnity of the occasion executed the
will under consideration. The exercise of improper pressure
and undue influence must be supported by substantial
evidence and must be of a kind that would overpower and
subjugate the mind of the testatrix as to destroy her free
agency and make her express the will of another rather than
her own (Coso vs. Deza, 42 Phil., 596). The burden is on the
person challenging the will that such influence was exerted
at the time of its execution, a matter which here was not
done, for the evidence presented not only is sufficient but
was disproved by the testimony the instrumental witnesses.
The question of whether the probate court could determine
the intrinsic validity of the provisions of a will has been

Art. 915. A compulsory heir may, in consequence of

disinheritance, be deprived of his legitime, for causes
expressly stated by law. (848a)
Disinheritance may be defined as the act by which the
testator, for a just cause, deprives a compulsory heir of his
right to the legitime.
It is a means given to the testator to punish such of his
compulsory heirs who have committed acts which render
them unworthy of benefit or generosity. The law saves the
testator from the pain of seeing a portion of his property
pass forcibly to an ungrateful heir or to one who may have
brought dishonor to him.
A disinheritance totally excludes the disinherited heir from
the inheritance not only the legitme but the entire amount
that he would have received as intestate heir.
Ratio: the law of intestacy is merely the presumed will of the
testator, and cannot prevail over the expressed will in the
form of a valid disinheritance. If the disinheritance deprives
the compulsory heir of his legitime reserved by law to him all
the more that he should be deprived of the portion which ca
nbe freely disposed of.
As to the intestate heirs such as the collateral relatives or
those within the fifth civil degree of consanguinity the
testator may disinherit them for any reason at all. They are
not heirs protected by law as a compulsory heir designated.
Since they are mere heirs of the presumed will their
succession depends only upon the discretion of the testator
or his presumed will when none was made.
Art. 916. Disinheritance can be effected only through a
will wherein the legal cause therefor shall be specified.
(849)
Art. 917. The burden of proving the truth of the cause for
disinheritance shall rest upon the other heirs of the
testator, if the disinherited heir should deny it. (850)
Requisites of disinheritance:
1. heir must be designated by name as to leave
no doubt;
2. must be for cause provided by law;
3. made in the will;
4. made expressly stating the causes in the will;
5. cause msut be certain, true , and proved
6. must be unconditional;
7. must be total
There can be no extension of the causes for disinheritance
by analogy. The causes assigned by the testator may be
graver or more serious than those given by the law, but if
they are not among those enumerated by the law, the
disinheritance will be ineffective.
The will must be valid. Otherwise, the disinheritance will not
be effective.
The law does not admit tacit disinheritance.
The last will of a person may be expressed in different
statements, all of them combined being considered as one
last expression of his will mortis causa. There will be a valid
disinheritance if the cause for it has been expressed in one
statement, and the disinheritance is made in another,
provided that the necessary connection between the cause
and the disinheritance is clearly established.
As a general rule, a disineritance must be unconditional. But
when the disinheritance is made in the form of a conditional
pardon, it is generally considered as walid. In such case,
there is an existing legal cause for disinheritance, but the
pardon for such cause is made dependent upon some
condition. The condition, however, should be related to the
cause for disinheritance, and not by a mere caprice or whim
of the testator. Ir is clear that it is the conditional pardon, and
not the conditional disinheritance, properly speaking, that is
allowable.
A partial disinheritance with partial pardon is inconceivable.
The offense is one; it cannot be separated into component
parts. The testator cannot be partly offended and partly not.
Art. 918. Disinheritance without a specification of the
cause, or for a cause the truth of which, if contradicted,
is not proved, or which is not one of those set forth in
this Code, shall annul the institution of heirs insofar as

61

it may prejudice the person disinherited; but the devises

and legacies and other testamentary dispositions shall
be valid to such extent as will not impair the legitime.
(851a)
This article pertain to effects of a disinheritance which does
not have one or more of the essential requisites for its
validity. It likewise applies to cases of reconciliation after a
disinheritance has been made.
The ineffective disinheritance does not affect the disposition
of the testator with respect to the free portion. The reason is
the disinheritance in this case refers only only to the legitime
of the heir, and therefore, it is only this portion that is
affected by the nullity or ineffectiveness of such
disinheritance.
Where the disinheritance is ineffective in this case, the
compulsory heir must be given all that he is entitiled to
receive as if the disinheritance has not been made, without
prejudice to lawful dispositions made by the testator in favor
of others.
Art. 919. The following shall be sufficient causes for the
disinheritance of children and descendants, legitimate
as well as illegitimate:
(1) When a child or descendant has been found
guilty of an attempt against the life of the
testator, his or her spouse, descendants, or
ascendants;
(2) When a child or descendant has accused
the testator of a crime for which the law
prescribes imprisonment for six years or more,
if the accusation has been found groundless;
(3) When a child or descendant has been
convicted of adultery or concubinage with the
spouse of the testator;
(4) When a child or descendant by fraud,
violence, intimidation, or undue influence
causes the testator to make a will or to change
one already made;
(5) A refusal without justifiable cause to
support the parent or ascendant who
disinherits such child or descendant;
(6) Maltreatment of the testator by word or
deed, by the child or descendant;
(7) When a child or descendant leads a
dishonorable or disgraceful life;
(8) Conviction of a crime which carries with it
the penalty of civil interdiction. (756, 853, 674a)
Attempt against the life includes all the different degrees of
commission of the crime, such as attempted, frustrated, and
consummated. It is essential though, that the heir be
convicted despite the following:
a. prescription of penalty;
b. pardon and amnesty both of which imply
conviction;
c. mere accomplice in the crime
Exception on attempt against the life are the following:
1. intention is lacking
2. conviction for mere reckless imprudence or
negligence though mitigated
3. justifying circumstance under the RPC
4. accessory after the fact
5. prosecution dismissed even if provisional
only
6. prescription of the crime
7. appeal to the higher court reverses conviction
Elements od false accusation:
1. act of accusing the testator;
2. judicial declaration that such accusation is
false;
3. offense charged is punishable be 6 years
imprisonment.
The heir convicted of adultery or concubinage with the
spouse of testator is disinherited by the law. But the law
does not provide when the testator himself is guilty of
adultery. In such case article 1028 will apply in relation to
article 729, prohibition to donate to a paramour.
Judicial demand for support is not necessary. The law does
not require it, the question of whether there has been a
refusal to give such support without justifiable cause is open
to proof if the disinherited child or descendant denies it.
Article 303 gives cause for the termination of the obligation
the support and these are justifiable grounds to refuse
support except of course the death of the preson entitiled to
support.
Art. 303. The obligation to give support shall also cease:
(1) Upon the death of the recipient;
(2) When the resources of the obligor have been
reduced to the point where he cannot give the
support without neglecting his own needs and
those of his family;
(3) When the recipient may engage in a trade,
profession, or industry, or has obtained work, or
has improved his fortune in such a way that he no
longer needs the allowance for his subsistence;
(4) When the recipient, be he a forced heir or not,
has committed some act which gives rise to
disinheritance;
(5) When the recipient is a descendant, brother or
sister of the obligor and the need for support is

caused by his or her bad conduct or by the lack of

application to work, so long as this cause subsists.
(152a)
Maltreatment by deed covers all acts of violence against the
testator short of an attempt against the life. Maltreatment by
word amounts to slander addressed directly against the
testator himself conviction, though, is not necessary. Except
when:
1. unintentional;
2. on account of lack of discernment due to
tender age or mental incapacity
What is dishonorable or disgraceful life is largely a matter of
appreciation and opinion. If denied, the burden of proof is
lodeged to the others interested in the estate. Ultimately, it is
the opinion of the court which will be the basis of the
disinheritance.
The conviction of the crime which carries the penalty of Civil
interdiction must be by final judgement.
Art. 920. The following shall be sufficient causes for the
disinheritance of parents or ascendants, whether
legitimate or illegitimate:
(1) When the parents have abandoned their
children or induced their daughters to live a
corrupt or immoral life, or attempted against
their virtue;
(2) When the parent or ascendant has been
convicted of an attempt against the life of the
testator, his or her spouse, descendants, or
ascendants;
(3) When the parent or ascendant has accused
the testator of a crime for which the law
prescribes imprisonment for six years or more,
if the accusation has been found to be false;
(4) When the parent or ascendant has been
convicted of adultery or concubinage with the
spouse of the testator;
(5) When the parent or ascendant by fraud,
violence, intimidation, or undue influence
causes the testator to make a will or to change
one already made;
(6) The loss of parental authority for causes
specified in this Code;
(7) The refusal to support the children or
descendants without justifiable cause;
(8) An attempt by one of the parents against
the life of the other, unless there has been a
reconciliation between them. (756, 854, 674a)
Abandonment should be understood in a general sense, so
as to include failure to give due care, attention, and support.
What is corrupt and immoral life will ultimately be MATTER
OF JUDICIAL APPRAISAL and opinion, if the parent denies
this cause for disinheritance. The acts which the daughter
has been indiuced by the parent to commit should be
proved. Daughters in the article must be construed to
include all female descendants.
Attempt against the virtue does not require final conviction. It
is enough that he has committed acts which would have
amounted to rape, seduction, or acts of lasciviousness,
against such daughter.
Loss of parental are provided for in the Family Code.
Art. 229. Unless subsequently revived by a final judgment,
parental authority also terminates:
(1) Upon adoption of the child;
(2) Upon appointment of a general guardian;
(3) Upon judicial declaration of abandonment of
the child in a case filed for the purpose;
(4) Upon final judgment of a competent court
divesting the party concerned of parental
authority; or
(5) Upon judicial declaration of absence or
incapacity of the person exercising parental
authority. (327a)
Art. 230. Parental authority is suspended upon conviction of
the parent or the person exercising the same of a crime
which carries with it the penalty of civil interdiction. The
authority is automatically reinstated upon service of the
penalty or upon pardon or amnesty of the offender. (330a)
Art. 231. The court in an action filed for the purpose in a
related case may also suspend parental authority if the
parent or the person exercising the same:
(1) Treats the child with excessive harshness or
cruelty;
(2) Gives the child corrupting orders, counsel or
example;
(3) Compels the child to beg; or
(4) Subjects the child or allows him to be
subjected to acts of lasciviousness.
The grounds enumerated above are deemed to include
cases which have resulted from culpable negligence of the
parent or the person exercising parental authority.
If the degree of seriousness so warrants, or the welfare of
the child so demands, the court shall deprive the guilty party
of parental authority or adopt such other measures as may
be proper under the circumstances.
The suspension or deprivation may be revoked and the
parental authority revived in a case filed for the purpose or in
the same proceeding if the court finds that the cause
therefor has ceased and will not be repeated. (33a)

62

Art. 232. If the person exercising parental authority has

subjected the child or allowed him to be subjected to sexual
abuse, such person shall be permanently deprived by the
court of such authority. (n)
There are temporary loss of parental authority which causes
disinheritance but will the recovery of authority revoke the
disinheritance? No. the cause for disinheritance subsists
even when parental authority is regained. The reason
advanced is that the real cause for disinheritance is not the
loss of the parental authority, but the fact of having
committed something sufficient to occasion such loss. The
right to inherit is odious, because it involves the deprivation
of property; this fact, together with the fact that
disinheritaqnce is an exception to the rules of legitime
justifies a strict construction.
Attempt against the life does not require conviction of the
offending parent. But the reconciliation between the
offending parent and the parent against whose life the
attempt was made deprives the child of the right to disinherit
the offender.
Art. 921. The following shall be sufficient causes for
disinheriting a spouse:
(1) When the spouse has been convicted of an
attempt against the life of the testator, his or
her descendants, or ascendants;
(2) When the spouse has accused the testator
of a crime for which the law prescribes
imprisonment of six years or more, and the
accusation has been found to be false;
(3) When the spouse by fraud, violence,
intimidation, or undue influence cause the
testator to make a will or to change one
already made;
(4) When the spouse has given cause for legal
separation;
(5) When the spouse has given grounds for the
loss of parental authority;
(6) Unjustifiable refusal to support the children
or the other spouse. (756, 855, 674a)
It is the fact of having given cause for the legal separation
which is the ground; in other words, it is necessary that the
legal separation be actually obtained.
Art. 55. A petition for legal separation may be filed on any of
the following grounds:
(1) Repeated physical violence or grossly abusive
conduct directed against the petitioner, a common
child, or a child of the petitioner;
(2) Physical violence or moral pressure to compel
the petitioner to change religious or political
affiliation;
(3) Attempt of respondent to corrupt or induce the
petitioner, a common child, or a child of the
petitioner, to engage in prostitution, or connivance
in such corruption or inducement;
(4) Final judgment sentencing the respondent to
imprisonment of more than six years, even if
pardoned;
(5) Drug addiction or habitual alcoholism of the
respondent;
(6) Lesbianism or homosexuality of the
respondent;
(7) Contracting by the respondent of a subsequent
bigamous marriage, whether in the Philippines or
abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of
the petitioner; or
(10) Abandonment of petitioner by respondent
without justifiable cause for more than one year.
For purposes of this Article, the term "child" shall include a
child by nature or by adoption. (9a)
Art. 63. The decree of legal separation shall have the
following effects:
(1) The spouses shall be entitled to live separately
from each other, but the marriage bonds shall not
be severed;
(2) The absolute community or the conjugal
partnership shall be dissolved and liquidated but
the offending spouse shall have no right to any
share of the net profits earned by the absolute
community or the conjugal partnership, which shall
be forfeited in accordance with the provisions of
Article 43(2);
(3) The custody of the minor children shall be
awarded to the innocent spouse, subject to the
provisions of Article 213 of this Code; and
(4) The offending spouse shall be disqualified from
inheriting from the innocent spouse by intestate
succession. Moreover, provisions in favor of the
offending spouse made in the will of the innocent
spouse shall be revoked by operation of law.
(106a)
Art. 922. A subsequent reconciliation between the
offender and the offended person deprives the latter of
the right to disinherit, and renders ineffectual any
disinheritance that may have been made. (856)

General pardon is not sufficient. The pardon must expressly

refer to the heir disinherited and specifically to the acts
causing the disinheritance. Such pardon must be accepted
by the heir. There must be a real reconciliation between the
parties.
There are some grounds for disinheritance which are also
causes for incapacity by reason of unworthiness. What then
would be the effect of a subsequent reconciliation between
the parties, if a disinheritance has already been made on
any of the grounds which are also causes for unworthiness?
Same effect, the heir may inherit as a CH and intestate.
Incapacity by reason of unworthiness is merely an
expression of the implied will of a person who has not
expressed his intention in a will. If the express intention,
manifested by the testator in a disinheriting clause in a will,
is rendered ineffective by a subsequent reconciliation, how
can the implied intention be logically held to exist?
If a disinheritance has been made, and then reconciliation
takes place, it will be the same as if there had been no
disinheritance. The disinheritance does not legally exist, and
the rights established by law in favor of the person
provisionally disinherited recover their supremacy over the
express disposition of thetestator.
Disinheritance may be revoked by:
1. reconciliation;
2. subsequent institution of the disinherited heir;
3. the nullity of the will containing the
disinheritance, such as when denied probate.
Once revoked it cannot be renewed except for other
causes subsequent to the revocation. Thus, after
reconciliation a new disinheritance can be based only
on new grounds.
Art. 923. The children and descendants of the person
disinherited shall take his or her place and shall
preserve the rights of compulsory heirs with respect to
the legitime; but the disinherited parent shall not have
the usufruct or administration of the property which
constitutes
the
legitime.
(857)
The causes of disinheritance are personal to the disinherited
heir; he alone is at fault, and nobody else should suffer the
effects of such culpability. His children and ascendants
therefore should not be penalized for acts not imputable to
them.
The article allows the children and descendants of the
person disinherited to take his place and retain the rights of
compulsory heirs in respect to the legitime.
The disinherited person can be represented only if he is a
child or descendant, a disinherited ascendant or spouse
cannot be represented. Right of representation applies.
The representation should extend to everything that would
have passed to the disinherited heir by operation of law; this
includes the amount that pertains to him as intestate heir
and not only that as compulsory heir.
PRINCIPLES AFFECTING THE FREELY DISPOSABLE
PORTION
XVI. INSTITUTION OF HEIRS
A. In General
Art. 840. Institution of heir is an act by virtue of which a
testator designates in his will the person or persons
who are to succeed him in his property and
transmissible rights and obligations. (n)
The will of the testator is the supreme law which succession
is governed, thus, the beneficiaries under the will must be
designated with clearness so that there can be no doubt as
to who are intended by the testator.
Since the institution of heirs and the designation of legatees
and devisees spring exclusively from the will of the testator,
only the portion of the inheritance that is subject to the
disposal of the testator would be affected by such institution
or designation. It cannot affect the portion known as the
legitime.
Art. 785. The duration or efficacy of the designation of
heirs, devisees or legatees, or the determination of the
portions which they are to take, when referred to by
name, cannot be left to the discretion of a third person.
(670a)
T: The matters mentioned in this article are testamentary in
nature; they constitute expressions of the will or disposition
of the testator. Hence, pursuant to Art. 784, it cannot be
delegated.

63

B: The ff. constitute the essence of will making or the

exercise of the disposing power, and thus, non-delegable:
1. the designation of heirs, devisees, legatees;
2. the duration or efficacy of such designation
including such things as conditions, terms,
substitutions
3. the determination of the portions they are to
recieve
Art. 787. The testator may not make a testamentary
disposition in such manner that another person has to
determine whether or not it is to be operative. (n)
Art. 841. A will shall be valid even though it should not
contain an institution of an heir, or such institution
should not comprise the entire estate, and even though
the person so instituted should not accept the
inheritance or should be incapacitated to succeed.
The heir may be instituted to succeed to the whole or to an
aliquot part of the inheritance. The existence of the
institution does not depend upon the designation or name
which the testator gives to his testamentary disposition.
In such cases the testamentary dispositions made in
accordance with law shall be complied with and the
remainder of the estate shall pass to the legal heirs.
(764)
Art. 842. One who has no compulsory heirs may dispose
by will of all his estate or any part of it in favor of any
person having capacity to succeed.
The article pertains to the principle of freedom of distribution
by will. The extent of his freedom of disposition depends
upon the existence, knid, and number of compulsory heirs.
When there are CH the law limits this freedom to such extent
that legitime is not impaired. Besides the civil law, special
laws also restrict this freedom such as the Public Land Act
which vests upon the heirs of the applicant or grantee the
ownership of land in such case that the latter dies. Thus, he
does not have free disposal of the subject land.
The body of the deceased testator will not pass under his
will or become part of the estate because it is not a property.
But the testator may be allowed to such extent for scientific
or educational purposes.
One who has compulsory heirs may dispose of his
estate provided he does not contravene the provisions
of this Code with regard to the legitime of said heirs.
(763a)
Art. 843. The testator shall designate the heir by his
name and surname, and when there are two persons
having the same names, he shall indicate some
circumstance by which the instituted heir may be
known.
Even though the testator may have omitted the name of
the heir, should he designate him in such manner that
there can be no doubt as to who has been instituted, the
institution shall be valid. (772)
Art. 844. An error in the name, surname, or
circumstances of the heir shall not vitiate the institution
when it is possible, in any other manner, to know with
certainty the person instituted.
If among persons having the same names and
surnames, there is a similarity of circumstances in such
a way that, even with the use of the other proof, the
person instituted cannot be identified, none of them
shall be an heir. (773a)
Art. 789. When there is an imperfect description, or
when no person or property exactly answers the
description, mistakes and omissions must be corrected,
if the error appears from the context of the will or from
extrinsic evidence, excluding the oral declarations of the
testator as to his intention; and when an uncertainty
arises upon the face of the will, as to the application of
any of its provisions, the testator's intention is to be
ascertained from the words of the will, taking into
consideration the circumstances under which it was
made, excluding such oral declarations. (n)
T: The first part of this article pertains to patent or extrinsic
ambiguity which appears upon the face of the instrument
such as when the testator gives a devise or legacy to
SOME of the six children of his cousin Juan
The second part pertains to latent or intrinsic ambiguity
which cannot be seen from a mere perusal or reading of the
will but appears only upon consideration of extrinsic
circumstances, such as giving legacy to my cousin Pedro,
when I fact he has two cousins named Pedro. Thus. It
occurs when:
1. two or more persons or things answer the name or
description;
2.
misdescription of the beneficiary or the gift
Extrinsic evidence is admissible to show the situation of the
testator and all the relevant facts and circumstances
surrounding him at the time of making the will, for the
purpose of explaining or resolving patent ambiguity.
B: method of resolving ambiguity, whether latent or patent is
any evidence admissible and relevant excluding the oral
declarations of testator as to his intention.
Ratio for the exclusion: B: can a dead man refute a tale?
T: the testator whose lips have been sealed by death can no
longer deny or affirm the truth of what witnesses may say he
declared, would create confusion and give rise to false
claims.

Art. 845. Every disposition in favor of an unknown

person shall be void, unless by some event or
circumstance his identity becomes certain. However, a
disposition in favor of a definite class or group of
persons shall be valid. (750a)
Art. 786. The testator may entrust to a third person the
distribution of specific property or sums of money that
he may leave in general to specified classes or causes,
and also the designation of the persons, institutions or
establishments to which such property or sums are to
be given or applied. (671a)
T: the third person here does not make any disposition, but
simply carries out details in the execution of the
testamentary disposition made by the testator himself in the
will.
B: for this article to take effect the testator must determine
the ff:
1. the property or amount of money given and;
2. the class or cause to be benefited
and the ff. may be delegated:
1. designation
of
persons,
institutions,
or
establishments within the class or cause;
2. the manner of distribution.
Art. 846. Heirs instituted without designation of shares
shall inherit in equal parts. (765)
Art. 848. If the testator should institute his brothers and
sisters, and he has some of full blood and others of half
blood, the inheritance shall be distributed equally
unless a different intention appears. (770a)
Art. 847. When the testator institutes some heirs
individually and others collectively as when he says, "I
designate as my heirs A and B, and the children of C,"
those collectively designated shall be considered as
individually instituted, unless it clearly appears that the
intention of the testator was otherwise. (769a)
Art. 849. When the testator calls to the succession a
person and his children they are all deemed to have
been instituted simultaneously and not successively.
(771)
Art. 850. The statement of a false cause for the
institution of an heir shall be considered as not written,
unless it appears from the will that the testator would
not have made such institution if he had known the
falsity of such cause. (767a)
Austria vs. Reyes
On July 7, 1956 Basilia Austria vda. de Cruz filed with the
Court of First Instance of Rizal (Special Proceedings 2457) a
petition for probate, ante mortem, of her last will and
testament. The probate was opposed by the present
petitioners Ruben Austria, Consuelo Austria-Benta and
Lauro Austria Mozo, and still others who, like the petitioner,
are nephews and nieces of Basilia. This opposition was,
however, dismissed and the probate of the will allowed after
due hearing.
The bulk of the estate of Basilia, admittedly, was destined
under the will to pass on to the respondents Perfecto Cruz,
Benita Cruz-Meez, Isagani Cruz, Alberto Cruz, and Luz
Cruz-Salonga, all of whom had been assumed and declared
by Basilia as her own legally adopted children.
Finally, on November 5, 1959, the present petitioners filed in
the same proceedings a petition in intervention for partition
alleging in substance that they are the nearest of kin of
Basilia, and that the five respondents Perfecto Cruz, et al.,
had not in fact been adopted by the decedent in accordance
with law, in effect rendering these respondents mere
strangers to the decedent and without any right to succeed
as heirs.
In the meantime, the contending sides debated the matter of
authenticity or lack of it of the several adoption papers
produced and presented by the respondents. On motion of
the petitioners Ruben Austria, et al., these documents were
referred to the National Bureau of Investigation for
examination and advice. N.B.I. report seems to bear out the
genuineness of the documents, but the petitioners, evidently
dissatisfied with the results, managed to obtain a preliminary
opinion from a Constabulary questioned-document examiner
whose views undermine the authenticity of the said
documents. The petitioners Ruben Austria, et al., thus
moved the lower court to refer the adoption papers to the
Philippine Constabulary for further study. The petitioners
likewise located former personnel of the court which
appeared to have granted the questioned adoption, and
obtained written depositions from two of them denying any
knowledge of the pertinent adoption proceedings.
The complaint in intervention filed in the lower court assails
the legality of the tie which the respondent Perfecto Cruz
and his brothers and sisters claim to have with the decedent.
The lower court had, however, assumed, by its orders in
question, that the validity or invalidity of the adoption is not
material nor decisive on the efficacy of the institution of
heirs; for, even if the adoption in question were spurious, the
respondents Perfecto Cruz, et al., will nevertheless succeed
not as compulsory heirs but as testamentary heirs instituted

64

in Basilia's will. This ruling apparently finds support in article

842 of the Civil Code which reads:
"One who has no compulsory heirs may
dispose of by will all his estate or any
part of it in favor of any person having
capacity to succeed.
"One who has compulsory heirs may
dispose of his estate provided he does
not contravene the provisions of this
Code with regard to the legitime of said
heirs."
The petitioners nephews and niece, upon the other hand,
insist that the entire estate should descend to them by
intestacy by reason of the intrinsic nullity of the institution of
heirs embodied in the decedent's will. They have thus raised
squarely the issue of whether or not such institution of heirs
would retain efficacy in the event there exists proof that the
adoption of the same heirs by the decedent is false.
The petitioners cite, as the controlling rule, article 850 of the
Civil Code which reads:
"The statement of a false cause for the
institution of an heir shall be considered
as not written, unless it appears from
the will that the testator would not have
made such institution if he had known
the falsity of such cause."
The tenor of the language used, the petitioners argue, gives
rise to the inference that the late Basilia was deceived into
believing that she was legally bound to bequeath one-half of
her entire estate to the respondents Perfecto Cruz, et al. as
the latter's legitime. The petitioners further contend that had
the deceased known the adoption to be spurious, she would
not have instituted the respondents at all the basis of the
institution being solely her belief that they were compulsory
heirs. Proof therefore of the falsity of the adoption would
cause a nullity of the institution of heirs and the opening of
the estate wide to intestacy. Did the lower court then abuse
its discretion or act in violation of the rights of the parties in
barring the petitioners nephews and niece from registering
their claim even to properties adjudicated by the decedent in
her will?
Before the institution of heirs may be annulled under article
850 of the Civil Code, the following requisites must concur:
First, the cause for the institution of heirs must be stated in
the will; second, the cause must be shown to be false; and
third, it must appear from the face of the will that the testator
would not have made such institution if he had known the
falsity of the cause.
The petitioners would have us imply, from the use of the
terms, "sapilitang tagapagmana" (compulsory heirs) and
"sapilitang mana" (legitime), that the impelling reason or
cause for the institution of the respondents was the
testatrix's belief that under the law she could not do
otherwise. If this were indeed what prompted the testatrix in
instituting the respondents, she did not make it known in her
will. Surely if she was aware that succession to the legitime
takes place by operation of law, independent of her own
wishes, she would not have found it convenient to name her
supposed compulsory heirs to their legitimes. Her express
adoption of the rules on legitimes should very well indicate
her complete agreement with that statutory scheme. But
even this, like the petitioners' own proposition, is highly
speculative of what was in the mind of the testatrix when she
executed her will. One fact prevails, however, and it is that
the decedent's will does not state in a specific or
unequivocal manner the cause for such institution of heirs.
We cannot annul the same on the basis of guesswork or
uncertain implications.
And even if we should accept the petitioners' theory that the
decedent instituted the respondents perfecto Cruz, et al.
solely because she believed that the law commanded her to
do so, on the false assumption that her adoption of these
respondents was valid, still such institution must stand.

class of heirs instituted and the abstract object of the

inheritance. They offer no absolute indication that the
decedent would have willed her estate other than the way
she did if she had known that she was not bound by law to
make allowance for legitimes. Her disposition of the free
portion of her estate (libre disposicion) which largely favored
the respondent Perfecto Cruz, the latter's children, and the
children of the respondent Benita Cruz, shows a perceptible
inclination on her part to give to the respondents more than
what she thought the law enjoined her to give to them.
Compare this with the relatively small devise of land which
the decedent had left for her blood relatives, including the
petitioners Consuelo Austria-Benta and Lauro Mozo and the
children of the petitioner Ruben Austria. Were we to exclude
the respondents Perfecto Cruz, et al, from the inheritance,
then the petitioners and the other nephews and nieces
would succeed to the bulk of the estate by intestacy a
result which would subvert the clear wishes of the decedent.
Whatever doubts one entertains in his mind should be swept
away by these explicit injunctions in the Civil Code: "The
words of a will are to receive an interpretation which will give
to every expression some effect, rather than one which will
render any of the expressions inoperative; and of two modes
of interpreting a will, that is to be preferred which will prevent
intestacy." 1
Testacy is favored and doubts are resolved on its side,
especially where the will evinces an intention on the part of
the testator to dispose of practically his whole estate, 2 as
was done in this case. Moreover, so compelling is the
principle that intestacy should be avoided and the wishes of
the testator allowed to prevail, that we could even vary the
language of the will for the purpose of giving it effect. 3 A
probate court has found, by final judgment, that the late
Basilia Austria Vda. de Cruz was possessed of testamentary
capacity and her last will executed free from falsification,
fraud, trickery or undue influence. In this situation, it
becomes our duty to give full expression to her will. 4
At all events, the legality of the adoption of the respondents
by the testatrix can be assailed only in a separate action
brought for that purpose, and cannot be the subject of a
collateral attack. 5
Art. 851. If the testator has instituted only one heir, and
the institution is limited to an aliquot part of the
inheritance, legal succession takes place with respect to
the remainder of the estate.
The same rule applies if the testator has instituted
several heirs, each being limited to an aliquot part, and
all the parts do not cover the whole inheritance. (n)
Art. 852. If it was the intention of the testator that the
instituted heirs should become sole heirs to the whole
estate, or the whole free portion, as the case may be,
and each of them has been instituted to an aliquot part
of the inheritance and their aliquot parts together do not
cover the whole inheritance, or the whole free portion,
each part shall be increased proportionally. (n)
Art. 853. If each of the instituted heirs has been given an
aliquot part of the inheritance, and the parts together
exceed the whole inheritance, or the whole free portion,
as the case may be, each part shall be reduced
proportionally. (n)
Art. 856. A voluntary heir who dies before the testator
transmits nothing to his heirs.
A compulsory heir who dies before the testator, a
person incapacitated to succeed, and one who
renounces the inheritance, shall transmit no right to his
own heirs except in cases expressly provided for in this
Code. (766a)
B. Kinds of Institution
1. Simple or Pure
Art. 777. The rights to the succession are transmitted
from the moment of the death of the decedent. (657a)
2. Conditional
Art. 871. The institution of an heir may be made
conditionally, or for a certain purpose or cause. (790a)
Viuda de Kilayko vs. Tengco

Article 850 of the Civil Code, quoted above, is a positive

injunction to ignore whatever false cause the testator may
have written in his will for the institution of heirs. Such
institution may be annulled only when one is satisfied, after
an examination of the will, that the testator clearly would not
have made the institution if he had known the cause for it to
be false. Now, would the late Basilia have caused the
revocation of the institution of heirs if she had known that
she was mistaken in treating these heirs as her legally
adopted children? Or would she have instituted them
nonetheless?
The decedent's will, which alone should provide the answer,
is mute on this point or at best is vague and uncertain. The
phrases, "mga sapilitang tagapagmana" and "sapilitang
mana," were borrowed from the language of the law on
succession and were used, respectively, to describe the

These consolidated cases seek to annul the orders 1 dated

September 20, 1978, January 7, 1977 and January 31, 1977
of the then Court of First Instance of Negros Occidental,
Branch IV, respectively, cancelling the notice of lis pendens
filed by Celsa L. Vda. de Kilayko, et al. with the Register of
Deeds of Negros Occidental, denying the motion for
reconsideration of the order dated September 20, 1976 filed
by Celsa L. Vda. de Kilay ko, et al., and holding in abeyance
the resolution of defendants' motion to dismiss.
On January 28, 1968, Maria Lizares y Alunan died without
any issue leaving said "testamento" in the possession and
custody of her niece, Eustaquia Lizares. 3 On February 6,
1968, Eustaquia filed a petition for the settlement of the
testate estate of Maria Lizares y Alunan, before the Court of

65

First Instance of Negros Occidental, Branch IV, docketed as

Special Proceedings No. 8452. 4
On July 10, 1968, Eustaquia filed a project of partition 6
which was granted by the probate court in an order dated
January 8, 1971. Simultaneously, said court declared the
heirs, devisees, legatees and usufructuaries mentioned in
the project of partition as the only heirs, devisees, legatees
and usufructuaries of the estate; adjudicated to them the
properties respectively assigned to each and every one of
them, and ordered the Register of Deeds of Negros
Occidental and Bacolod City to effect the corresponding
transfer of the real properties to said heirs as well as the
transfer of shares, stocks, and dividends in different
corporations, companies and partnerships in the name of
Maria Lizares to the heirs and legatees, and the closure of
the testate proceedings of Maria Lizares. 7
A year later or on November 23, 1973, Eustaquia Lizares
died single without any descendant.
11 In due time,
Rodolfo Lizares and Amelo Lizares were appointed joint
administrators of Eustaquia's intestate estate.
On the strength of the testamentary provisions contained in
paragraphs 10 and 11 of the will of Maria Lizares, which
were allegedly in the nature of a simple substitution, Celsa
Vda. de Kilayko, Encarnacion Vda. de Panlilio, and
Remedios Vda. de Guinto (hereinafter collectively referred to
as Celsa L. Vda. de Kilayko, et al.) filed a motion in Special
Proceedings No. 8452 to reopen once again the testate
estate proceedings of Maria Lizares. They prayed among
others that a substitute administrator be appointed; that the
order dated January 8, 1971 be reconsidered and amended
by declaring them as heirs to 1/3 of 1/14 of Hda. Minuluan
and to 1/6 of Hda. Matab-ang, both of which form an
aggregate area of 33 hectares; that the Register of Deeds of
Negros Occidental, after such amendment, be ordered to
register at the back of their respective certificates of title, the
order of probate and a "declaration" that movants are the
heirs of said properties, and correspondingly issue new
certificates of title in their names. 12
Two (2) sets of intestate heirs of the deceased Eustaquia
Lizares namely: Socorro L. Vda. de Escario, Rodolfo
Lizares, Mario Lizares, Lucrecia Gustilo, and Aurora Lizares
Wagner opposed the aforesaid motion. They alleged that the
court had no more jurisdiction to reopen the testate estate
proceedings of Maria Lizares as the order of closure had
long become final and that the testamentary provisions
sought to be enforced are null and void. 13
On April 13, 1977, the joint administrators filed before this
Court a petition for certiorari, prohibition and/or mandamus
with prayer for a writ of preliminary injunction. It was
docketed as G.R. No. L-45965. Petitioners contend that the
lower court had no jurisdiction over Civil Case No. 11639 as
it involves the interpretation of the will of Maria Lizares, its
implementation and/or the adjudication of her properties.
They assert that the matter had been settled in Special
Proceedings No. 8452 which had become final and
unappealable long before the complaint in Civil Case No.
11639 was filed, and therefore, the cause of action in the
latter case was barred by the principle of res judicata. They
aver that the claim of Celsa, Encarnacion and Remedios,
sisters of Maria Lizares, over the properties left by their
niece Eustaquia and which the latter had inherited by will
from Maria Lizares, was groundless because paragraphs 10
and 11 of Maria's will on which Celsa L. Vda. de Kilayko, et
al. base their claim, conceived of a fideicommissary
substitution of heirs. Petitioners contend that said provisions
of the will are not valid because under Article 863 of the Civil
Code, they constitute an invalid fideicommissary substitution
of heirs.
The petition in G.R. No. L-45965 is impressed with merit.
In testate succession, there can be no valid partition among
the heirs until after the will has been probated. 30 The law
enjoins the probate of a will and the public requires it,
because unless a will is probated and notice thereof given to
the whole world, the right of a person to dispose of his
property by will may be rendered nugatory.
31 The
authentication of a will decides no other question than such
as touch upon the capacity of the testator and the
compliance with those requirements or solemnities which the
law prescribes for the validity of a will. 32
The probate court, in the exercise of its jurisdiction to
distribute the estate, has the power to determine the
proportion or parts to which each distributee is entitled . . .
37 A project of partition is merely a proposal for the
distribution of the hereditary estate which the court may
accept or reject. It is the court that makes that distribution of
the estate and determines the persons entitled thereto. 38
In the instant case, the records will show that in the
settlement of the testate estate of Maria Lizares, the
executrix, Eustaquia Lizares submitted on January 8, 1971,
a project of partition in which the parcels of land, subject
matters of the complaint for reconveyance, were included as

property of the estate and assigned exclusively to Eustaquia

as a devisee of Maria Lizares. In accordance with said
project of partition which was approved by the probate court,
Encarnacion Lizares Vda. de Panlilio, Remedios Lizares
Vda. de Guinto, Felicidad Paredes Llopez, Rosario Paredes
Mendoza and Eustaquia Lizares executed an Agreement of
Partition and Subdivision on November 28, 1972, whereby
they agreed to terminate their co-ownership over Lots Nos.
550, 514, 553, 1287-C of SWO-7446 and 552 covered by
Transfer Certificates of Title Nos. T-65004, T-65005, T65006, T-65007 and T-65008. These facts taken altogether
show that the Lizares sisters recognized the decree of
partition sanctioned by the probate court and in fact reaped
the fruits thereof.
Hence, they are now precluded from attacking the validity of
the partition or any part of it in the guise of a complaint for
reconveyance. A party cannot, in law and in good
conscience be allowed to reap the fruits of a partition,
agreement or judgment and repudiate what does not suit
him. 39 Thus, where a piece of land has been included in
a partition and there is no allegation that the inclusion was
effected through improper means or without petitioner's
knowledge, the partition barred any further litigation on said
title and operated to bring the property under the control and
jurisdiction of the court for its proper disposition according to
the tenor of the partition.
40 The question of private
respondents' title over the lots in question has been
concluded by the partition and became a closed matter.
A final decree of distribution of the estate of a deceased
person vests the title to the land of the estate in the
distributees. If the decree is erroneous, it should be
corrected by opportune appeal, for once it becomes final, its
binding effect is like any other judgment in rem, unless
properly set aside for lack of jurisdiction or fraud. Where the
court has validly issued a decree of distribution and the
same has become final, the validity or invalidity of the project
of partition becomes irrelevant. 41
It is a fundamental concept in the origin of every jural
system, a principle of public policy, that at the risk of
occasional errors, judgments of courts should become final
at some definite time fixed by law, interest rei publicae ut
finis sit litum. "The very object of which the courts were
constituted was to put an end to controversies."
42 The
only instance where a party interested in a probate
proceeding may have a final liquidation set aside is when he
is left out by reason of circumstances beyond his control or
through mistake or inadvertence not imputable to
negligence. Even then, the better practice to secure relief is
the opening of the same by proper motion within the
reglementary period, instead of an independent action, the
effect of which if successful, would be for another court or
judge to throw out a decision or order already final and
executed and reshuffle properties long ago distributed and
disposed of. 43
The fundamental principle upon which the doctrine of res
judicata rests is that parties ought not to be permitted to
litigate the same issue more than once, that, when a right or
fact has been judicially tried and determined by a court of
competent jurisdiction, or an opportunity for such trial has
been given, the judgment of the court, so long as it remains
unreversed, should be conclusive upon the parties and
those in privity with then in law or estate. 44
Granting that res judicata has not barred the institution of
Civil Case No. 11639, the contention of Celsa L. Vda. de
Kilay ko et al. that they are conditional substitute heirs of
Eustaquia in the testate estate of Maria Lizares 46 is not
meritorious. While the allegation of the joint administrators
that paragraphs 10 and 11 of Maria Lizares' last will and
testament conceives of a fideicommissary substitution under
Article 863 of the Civil Code is also baseless as said
paragraphs do not impose upon Eustaquia a clear obligation
to preserve the estate in favor of Celsa L. Vda. de Kilay ko,
et al., neither may said paragraphs be considered as
providing for a vulgar or simple substitution.
It should be remembered that when a testator merely names
an heir and provides that if such heir should die a second
heir also designated shall succeed, there is no
fideicommissary substitution. The substitution should then
be construed as a vulgar or simple substitution under Art.
859 of the Civil Code but it shall be effective only if the first
heir dies before the testator. 47 In this case, the instituted
heir, Eustaquia, survived the testatrix, Maria Lizares. Hence,
there can be no substitution of heirs for, upon Maria Lizares
death, the properties involved unconditionally devolved upon
Eustaquia. Under the circumstances, the sisters of Maria
Lizares could only inherit the estate of Eustaquia by
operation of the law of intestacy
With respect to the cancellation of the notice of lis pendens
on the properties involved, there is no merit in the contention
of Celsa L. Vda. de Kilay ko, et al., that the lower court acted
contrary to law and/or gravely abused its discretion in
cancelling the notice of lis pendens. The cancellation of such
a precautionary notice, being a mere incident in an action,

66

may be ordered by the court having jurisdiction over it at any

given time.
48 Under Sec. 24, Rule 14 of the Rules of
Court, a notice of lis pendens may be cancelled "after proper
showing that the notice is for the purpose of molesting the
adverse party, or that it is not necessary to protect the rights
of the party who caused it to be recorded" 49 In this case,
the lower court ordered the cancellation of said notice on the
principal reason that the administrators of the properties
involved are subject to the supervision of the court and the
said properties are under custodia legis. Therefore, such
notice was not necessary to protect the rights of Celsa L.
Vda. de Kilay ko, et al. More so in this case where it turned
out that their claim to the properties left by Eustaquia is
without any legal basis.
Art. 872. The testator cannot impose any charge,
condition, or substitution whatsoever upon the legitimes
prescribed in this Code. Should he do so, the same shall
be considered as not imposed. (813a)
Art. 873. Impossible conditions and those contrary to
law or good customs shall be considered as not
imposed and shall in no manner prejudice the heir, even
if the testator should otherwise provide. (792a)
Art. 874. An absolute condition not to contract a first or
subsequent marriage shall be considered as not written
unless such condition has been imposed on the widow
or widower by the deceased spouse, or by the latter's
ascendants or descendants.
Nevertheless, the right of usufruct, or an allowance or
some personal prestation may be devised or
bequeathed to any person for the time during which he
or she should remain unmarried or in widowhood. (793a)
Art. 1183. Impossible conditions, those contrary to good
customs or public policy and those prohibited by law
shall annul the obligation which depends upon them. If
the obligation is divisible, that part thereof which is not
affected by the impossible or unlawful condition shall be
valid.
The condition not to do an impossible thing shall be
considered as not having been agreed upon. (1116a)
Art. 875. Any disposition made upon the condition that
the heir shall make some provision in his will in favor of
the testator or of any other person shall be void. (794a)
Art. 876. Any purely potestative condition imposed upon
an heir must be fulfilled by him as soon as he learns of
the testator's death.
This rule shall not apply when the condition, already
complied with, cannot be fulfilled again. (795a)
Art. 877. If the condition is casual or mixed, it shall be
sufficient if it happens or be fulfilled at any time before
or after the death of the testator, unless he has provided
otherwise.
Should it have existed or should it have been fulfilled at
the time the will was executed and the testator was
unaware thereof, it shall be deemed as complied with.
If he had knowledge thereof, the condition shall be
considered fulfilled only when it is of such a nature that
it can no longer exist or be complied with again. (796)
Art. 1034. In order to judge the capacity of the heir,
devisee or legatee, his qualification at the time of the
death of the decedent shall be the criterion.
In cases falling under Nos. 2, 3, or 5 of Article 1032, it
shall be necessary to wait until final judgment is
rendered, and in the case falling under No. 4, the
expiration of the month allowed for the report.
If the institution, devise or legacy should be conditional,
the time of the compliance with the condition shall also
be considered. (758a)
Art. 879. If the potestative condition imposed upon the
heir is negative, or consists in not doing or not giving
something, he shall comply by giving a security that he
will not do or give that which has been prohibited by the
testator, and that in case of contravention he will return
whatever he may have received, together with its fruits
and interests. (800a)
Art. 880. If the heir be instituted under a suspensive
condition or term, the estate shall be placed under
administration until the condition is fulfilled, or until it
becomes certain that it cannot be fulfilled, or until the
arrival of the term.
The same shall be done if the heir does not give the
security required in the preceding article. (801a)
Art. 881. The appointment of the administrator of the
estate mentioned in the preceding article, as well as the
manner of the administration and the rights and
obligations of the administrator shall be governed by
the Rules of Court. (804a)
Art. 884. Conditions imposed by the testator upon the
heirs shall be governed by the rules established for
conditional obligations in all matters not provided for by
this Section. (791a)
3. Institution with a Term
Art. 885. The designation of the day or time when the
effects of the institution of an heir shall commence or
cease shall be valid.
In both cases, the legal heir shall be considered as
called to the succession until the arrival of the period or

its expiration. But in the first case he shall not enter into
possession of the property until after having given
sufficient security, with the intervention of the instituted
heir. (805)
Art. 878. A disposition with a suspensive term does not
prevent the instituted heir from acquiring his rights and
transmitting them to his heirs even before the arrival of
the term. (799a)
Art. 880. If the heir be instituted under a suspensive
condition or term, the estate shall be placed under
administration until the condition is fulfilled, or until it
becomes certain that it cannot be fulfilled, or until the
arrival of the term.
The same shall be done if the heir does not give the
security required in the preceding article. (801a)
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

fiduciary the absolute obligation to deliver the

property to a second heir;
(2) Provisions which contain a perpetual
prohibition to alienate, and even a temporary
one, beyond the limit fixed in article 863;
(3) Those which impose upon the heir the
charge of paying to various persons
successively, beyond the limit prescribed in
article 863, a certain income or pension;
(4) Those which leave to a person the whole
part of the hereditary property in order that he
may apply or invest the same according to
secret instructions communicated to him by
the testator. (785a)
Art. 868. The nullity of the fideicommissary substitution
does not prejudice the validity of the institution of the
heirs first designated; the fideicommissary clause shall
simply be considered as not written. (786)
Art. 869. A provision whereby the testator leaves to a
person the whole or part of the inheritance, and to
another the usufruct, shall be valid. If he gives the
usufruct to various persons, not simultaneously, but
successively, the provisions of Article 863 shall apply.
(787a)
Palacios vs. Ramirez
The main issue in this appeal is the manner of partitioning
the testate estate of Jose Eugenio Ramirez among the
principal beneficiaries, namely: his widow Marcelle Demoron
de Ramirez; his two grandnephews Roberto and Jorge
Ramirez; and his companion Wanda de Wrobleski.
The task is not trouble-free because the widow Marcelle is a
French who lives in Paris, while the companion Wanda is an
Austrian who lives in Spain. Moreover, the testator provided
for substitutions.
Jose Eugenio Ramirez, a Filipino national, died in Spain on
December 11, 1964, with only his widow as compulsory heir.
His will was admitted to probate by the Court of First
Instance of Manila, Branch X, on July 27, 1965. Maria Luisa
Palacios was appointed administratrix of the estate. On June
23, 1966, the administratrix submitted a project of partition
as follows: the property of the deceased is to be divided into
two parts. One part shall go to the widow "en pleno dominio"
in satisfaction of her legitime; the other part or "free portion"
shall go to Jorge and Roberto Ramirez "en nuda
propriedad." Furthermore, one third (1/3) of the free portion
is charged with the widow's usufruct and the remaining twothird (2/3) with a usufruct in favor of Wanda.
Jorge and Roberto opposed the project of partition on the
grounds: (a) that the provisions for vulgar substitution in
favor of Wanda de Wrobleski with respect to the widow's
usufruct and in favor of Juan Pablo Jankowski and Horacio
V. Ramirez, with respect to Wanda's usufruct are invalid
because of the first heirs (Marcelle and Wanda) survived the
testator; (b) that the provisions for fideicommissary
substitutions are also invalid because the first heirs are not
related to the second heirs or substitutes within the first
degree, as provided in Article 863 of the Civil Code; (c) that
the grant of a usufruct over real property in the Philippines in
favor of Wanda de Wrobleski, who is an alien, violates
Section 5, Article XIII of the Philippine Constitution; and that
(d) the proposed partition of the testator's interest in the
Santa Cruz (Escolta) Building between the widow Marcelle,
and the appellants, violates the testator's express will to give
this property to them. Nonetheless, the lower court approved
the project of partition in its order dated May 3, 1967. It is
this order which Jorge and Roberto have appealed to this
Court.
The widow's legitime.
It is the one-third usufruct over the free portion which the
appellants question and justifiably so. It appears that the
court a quo approved the usufruct in favor of Marcelle
because the testament provides for a usufruct in her favor of
one-third of the estate. The court a quo erred for Marcelle
who is entitled to one-half of the estate "en pleno dominio"
as her legitime and which is more than what she is given
under the will is not entitled to have any additional share in
the estate. To give Marcelle more than her legitime will run
counter to the testator's intention for as stated above his
dispositions even impaired her legitime and tended to favor
Wanda.
The substitutions.
It may be useful to recall that "Substitution is the
appointment of another heir so that he may enter into the
inheritance in default of the heir originally instituted." (Art.
857, Civil Code.) And that there are several kinds of
substitutions, namely: simple or common, brief or
compendious, reciprocal, and fideicommissary. (Art. 858,
Civil Code.) According to Tolentino, "Although the Code
enumerates four classes, there are really only two principal
classes of substitutions: the simple and the fideicommissary.
The others are merely variations of these two." (III Civil
Code, p. 185 [1973]).

The simple or vulgar is that provided in Art. 859 of the Civil

Code which reads:
"ART. 859.
The 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."
The fideicommissary substitution is described in the Civil
Code as follows:
"ART. 863.
A fideicommissary substitution
by virtue of which the fiduciary or first heir
instituted is entrusted with the obligation to
preserve and to transmit to a second heir the
whole or part of inheritance, shall be valid and
shall take effect, provided such substitution does
not go beyond one degree from the heir originally
instituted, and provided further that the fiduciary or
first heir and the second heir are living at time of
the death of the testator."
It will be noted that the testator provided for a vulgar
substitution in respect of the legacies of Roberto and Jorge
Ramirez, the appellants,
The appellants also question the "sustitucion vulgar y
fideicomisaria" in connection with Wanda's usufruct over
two-thirds of the estate in favor of Juan Pablo Jankowski and
Horace V. Ramirez.
They allege that the substitution in its vulgar aspect is void
because Wanda survived the testator or stated differently
because she did not predecease the testator. But dying
before the testator is not the only case for vulgar substitution
for it also includes refusal or incapacity to accept the
inheritance as provided in Art. 859 of the Civil Code, supra.
Hence, the vulgar substitution is valid.
As regards the substitution in its fideicommissary aspect, the
appellants are correct in their claim that it is void for the
following reasons:
(a)
The substitutes (Juan Pablo Jankowski and
Horace V. Ramirez) are not related to Wanda, the heir
originally instituted. Art. 863 of the Civil Code validates a
fideicommissary substitution "provided such substitution
does not go beyond one degree from the heir originally
instituted."
"Scaevola, Maura, and Traviesas construe
'degree'
as
designation,
substitution,
or
transmission. The Supreme Court of Spain has
decidedly adopted this construction. From this
point of view, there can be only one transmission
or substitution, and the substitute need not be
related to the first heir. Manresa, Morell, and
Sanchez Roman, however, construe the word
'degree' as generation, and the present Code has
obviously followed this interpretation, by providing
that the substitution shall not go beyond one
degree 'from the heir originally instituted.' The
Code thus clearly indicates that the second heir
must be related to and be one generation from the
first heir.
"From this, it follows that the fideicommissary can
only be either a child or a parent of the first heir.
These are the only relatives who are one
generation or degree from the fiduciary." (Op. cit.,
pp. 193-194.).
(b)
There is no absolute duty imposed on Wanda to
transmit the usufruct to the substitutes as required by Arts.
865 and 867 of the Civil Code. In fact, the appellee admits
"that the testator contradicts the establishment of a
fideicommissary substitution when he permits the properties
subject of the usufruct to be sold upon mutual agreement of
the usufructuaries and the naked owners." (Brief, p. 26).
The usufruct of Wanda.
The court a quo upheld the validity of the usufruct given to
Wanda on the ground that the Constitution covers not only
succession by operation of law but also testamentary
succession. We are of the opinion that the Constitutional
provision which enables aliens to acquire private lands does
not extend to testamentary succession for otherwise the
prohibition will be for naught and meaningless. Any alien
would be able to circumvent the prohibition by paying money
to a Philippine landowner in exchange for a devise of a piece
of land.

68

This opinion notwithstanding, We uphold the usufruct in

favor of Wanda because a usufruct, albeit a real right, does
not vest title to the land in the usufructuary and it is the
vesting of title to land in favor of aliens which is proscribed
by the Constitution.
Crisologo vs. Singson
Action for partition commenced by the spouses Consolacion
Florentino and Francisco Crisologo against Manuel Singson
in connection with a residential lot located at Plaridel St.,
Vigan, Ilocos Sur, with an area of approximately 193 square
meters, and the improvements existing thereon, covered by
Tax No. 10765-C. Their complaint alleged that Singson
owned one half proindiviso of said property and that
Consolacion Florentino owned the other half by virtue of the
provisions of the duly probated last will of Doa Leona
Singson, the original owner, and the project of partition
submitted to, and approved by the Court of First Instance of
Ilocos Sur in Special Proceeding No. 453; that plaintiffs had
made demands for the partition of said property, but
defendant refused to accede thereto, thus compelling them
to bring action.
Defendant's defense was that Consolacion Florentino was a
mere usufructuary of, and not owner of one half proindiviso
of the property in question, and that, therefore, she was not
entitled to demand partition thereof.
It is admitted that Doa Leona Singson, who died single on
January 13, 1948, was the owner of the property in question
at the time of her death. On July 31, 1951 she executed her
last will which was admitted to probate in Special
Proceeding No. 453 of the lower court whose decision was
affirmed by the Court of Appeals in G. R. No. 3605-R. At the
time of the execution of the will her nearest living relatives
were her brothers Evaristo, Manuel and Dionisio Singson,
and her nieces Rosario, Emilia and Trinidad, and her
grandniece Consolacion, all surnamed Florentino.
The issue to be decided is whether the testamentary
disposition above-quoted provided for what is called
sustitucin vulgar or for a sustitucin fideicomisaria. This
issue is, we believe, controlled by the pertinent provisions of
the Civil Code in force in the Philippines prior to the
effectivity of the New Civil Code, in view of the fact that the
testatrix died on January 13, 1948. They are the following:
"ART. 774. The testator may designate one or more
persons to substitute the heir or heirs instituted in case
such heir or heirs should die before him, or should not
wish or should be unable to accept the inheritance.
"A simple substitution, without a statement of the cases to
which it is to apply, shall include the three mentioned in
the next preceding paragraph, unless the testator has
otherwise provided."
"ART. 781. Fidei-comissary substitutions by virtue of
which the heir is charged to preserve and transmit to a
third person the whole or part of the inheritance shall be
valid and effective, provided they do not go beyond the
second degree, or that they are made in favor of persons
living at the time of the death of the testator."
"ART. 785. The following shall be inoperative:
1.
Fiduciary substitutions not made
expressly, either by giving them this name or by
imposing upon the fiduciary the absolute
obligation of delivering the property to a second
heir." * * *.
In accordance with the first legal provision quoted above, the
testator may not only designate the heirs who will succeed
him upon his death, but also provide for substitutes in the
event that said heirs do not accept or are in no position to
accept the inheritance or legacies, or die ahead of him.
The testator may also bequeath his properties to a particular
person with the obligation, on the part of the latter, to deliver
the same to another person, totally or partially, upon the
occurrence of a particular event.
It is clear that the particular testamentary clause under
consideration provides for a substitution of the heir named
therein in this manner: that upon the death of Consolacion
Florentino-whether this occurs before or after that of the
testatrix-the property bequeathed to her shall be delivered
("se dar") or shall belong in equal parts to the testatrix's
three brothers, Evaristo, Manuel and Dionisio, or their forced
heirs, should anyone of them the ahead of Consolacion
Florentino. If this clause created what is known as
sustitucin vulgar, the necessary result would be that
Consolacion Florentino, upon the death of the testatrix,
became the owner of one undivided half of the property, but
if it provided for a sustitucin fideicomisaria, she would have
acquired nothing more than usufructuary rights over the
same half. In the former case, she would undoubtedly be
entitled to partition, but not in the latter. As Manresa says, if
the fiduciary did not acquire full ownership of the property
bequeathed, by will, but mere usufructuary rights thereon

until the time came for him to deliver said property to the
fideicomisario, it is obvious that the nude ownership over the
property, upon the death of the testatrix, passed to and was
acquired by another person, and 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

or devise; but if it has been acquired by onerous title he

can demand reimbursement from the heir or the estate.
(878a)
Art. 934. If the testator should bequeath or devise
something pledged or mortgaged to secure a
recoverable debt before the execution of the will, the
estate is obliged to pay the debt, unless the contrary
intention appears.
The same rule applies when the thing is pledged or
mortgaged after the execution of the will.
Any other charge, perpetual or temporary, with which
the thing bequeathed is burdened, passes with it to the
legatee or devisee. (867a)
Art. 935. The legacy of a credit against a third person or
of the remission or release of a debt of the legatee shall
be effective only as regards that part of the credit or
debt existing at the time of the death of the testator.
In the first case, the estate shall comply with the legacy
by assigning to the legatee all rights of action it may
have against the debtor. In the second case, by giving
the legatee an acquittance, should he request one.
In both cases, the legacy shall comprise all interests on
the credit or debt which may be due the testator at the
time of his death. (870a)
Art. 936. The legacy referred to in the preceding article
shall lapse if the testator, after having made it, should
bring an action against the debtor for the payment of his
debt, even if such payment should not have been
effected at the time of his death.
The legacy to the debtor of the thing pledged by him is
understood to discharge only the right of pledge. (871)
Art. 937. A generic legacy of release or remission of
debts comprises those existing at the time of the
execution of the will, but not subsequent ones. (872)
Art. 938. A legacy or devise made to a creditor shall not
be applied to his credit, unless the testator so expressly
declares.
In the latter case, the creditor shall have the right to
collect the excess, if any, of the credit or of the legacy or
devise. (837a)
Art. 939. If the testator orders the payment of what he
believes he owes but does not in fact owe, the
disposition shall be considered as not written. If as
regards a specified debt more than the amount thereof
is ordered paid, the excess is not due, unless a contrary
intention appears.
The foregoing provisions are without prejudice to the
fulfillment of natural obligations. (n)
Art. 940. In alternative legacies or devises, the choice is
presumed to be left to the heir upon whom the
obligation to give the legacy or devise may be imposed,
or the executor or administrator of the estate if no
particular heir is so obliged.
If the heir, legatee or devisee, who may have been given
the choice, dies before making it, this right shall pass to
the respective heirs.
Once made, the choice is irrevocable.
In the alternative legacies or devises, except as herein
provided, the provisions of this Code regulating
obligations of the same kind shall be observed, save
such modifications as may appear from the intention
expressed by the testator. (874a)
Art. 941. A legacy of generic personal property shall be
valid even if there be no things of the same kind in the
estate.
A devise of indeterminate real property shall be valid
only if there be immovable property of its kind in the
estate.
The right of choice shall belong to the executor or
administrator who shall comply with the legacy by the
delivery of a thing which is neither of inferior nor of
superior quality. (875a)
Art. 942. Whenever the testator expressly leaves the
right of choice to the heir, or to the legatee or devisee,
the former may give or the latter may choose whichever
he may prefer. (876a)
Art. 943. If the heir, legatee or devisee cannot make the
choice, in case it has been granted him, his right shall
pass to his heirs; but a choice once made shall be
irrevocable. (877a)
Art. 944. A legacy for education lasts until the legatee is
of age, or beyond the age of majority in order that the
legatee may finish some professional, vocational or
general course, provided he pursues his course
diligently.
A legacy for support lasts during the lifetime of the
legatee, if the testator has not otherwise provided.
If the testator has not fixed the amount of such legacies,
it shall be fixed in accordance with the social standing
and the circumstances of the legatee and the value of
the estate.
If the testator or during his lifetime used to give the
legatee a certain sum of money or other things by way
of support, the same amount shall be deemed
bequeathed, unless it be markedly disproportionate to
the value of the estate. (879a)
Art. 945. If a periodical pension, or a certain annual,
monthly, or weekly amount is bequeathed, the legatee

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

legacy or devise shall not thereafter be valid,

unless the reacquisition shall have been
effected by virtue of the exercise of the right of
repurchase;
(3) If the thing bequeathed is totally lost during
the lifetime of the testator, or after his death
without the heir's fault. Nevertheless, the
person obliged to pay the legacy or devise
shall be liable for eviction if the thing
bequeathed should not have been determinate
as to its kind, in accordance with the
provisions of Article 928. (869a)
Art. 958. A mistake as to the name of the thing
bequeathed or devised, is of no consequence, if it is
possible to identify the thing which the testator intended
to bequeath or devise. (n)
Art. 959. A disposition made in general terms in favor of
the testator's relatives shall be understood to be in favor
of
those
nearest
in
degree.
(751)
Fernandez vs. Dimagiba
It appears from the record that on January 19, 1955, Ismaela
Dimagiba, now respondent, submitted to the Court of First
Instance a petition for the probate of the purported will of the
late Benedicta de los Reyes, executed on October 22, 1930,
and annexed to the petition. The will instituted the petitioner
as the sole heir of the estate of the deceased. The petition
was set for hearing, and in due time, Dionisio Fernandez,
Eusebio Reyes and Luisa Reyes, and one month later,
Mariano, Cesar, Leonor and Paciencia, all surnamed Reyes,
all claiming to be heirs intestate of the decedent, filed
oppositions to the probate asked. Grounds advanced for the
opposition were forgery, vices of consent of the testatrix,
estoppel by laches of the proponent, and revocation of the
will by two deeds of conveyance of the major portion of the
estate made by the testatrix in favor of the proponent in
1943 and 1944, but which conveyances were finally set
aside by this Supreme Court in a decision promulgated on
August 3, 1954, in cases G.R. Nos. L-5618 and L-5620
(unpublished).
Oppositors Fernandez and Reyes petitioned for
reconsideration and/or new trial, insisting that the issues of
estoppel and revocation be considered and resolved;
whereupon, on July 27, 1959, the Court overruled the claim
that proponent was in estoppel to ask for the probate of the
will, but "reserving unto the parties the right to raise the
issue of implied revocation at the opportune time."
On February 27, 1962, after receiving further evidence on
the issue whether the execution by the testatrix of deeds of
sale of the larger portion of her estate in favor of the
testamentary heir, made in 1943 and 1944, subsequent to
the execution of her 1930 testament, had revoked the latter
under Article 957(2) of the 1950 Civil Code (Art. 869 of the
Civil Code of 1889), the trial Court resolved against the
oppositors and held the will of the late Benedicta de los
Reyes "unaffected and unrevoked by the deeds of sale."
Whereupon, the oppositors elevated the case to the Court of
Appeals.
In this instance, both sets of oppositors-appellants pose
three main issues: (a) whether or not the decree of the Court
of First Instance allowing the will to probate had become
final for lack of appeal; (b) whether or not the order of the
Court of origin dated July 27, 1959, overruling the estoppel
invoked by oppositors-appellants had likewise become final;
and (c) whether or not the 1930 will of Benedicta de los
Reyes had been impliedly revoked by her execution of
deeds of conveyance in favor of the proponent on March 26,
1943 and April 3, 1944.
There being no controversy that the probate decree of the
Court below was not appealed on time, the same had
become final and conclusive. Hence, the appellate courts
may no longer revoke said decree nor review the evidence
upon which it is made to rest. Thus, the appeal belatedly
lodged against the decree was correctly dismissed.
The alleged revocation implied from the execution of the
deeds of conveyance in favor of the testamentary heir is
plainly irrelevant to and separate from the question of
whether the testament was duly executed. For one, if the will
is not entitled to probate, or its probate is denied, all
questions of revocation becomes superfluous: in law, there
is no such will and hence there would be nothing to revoke.
Then, again, the revocation invoked by the oppositorsappellants is not an express one, but merely implied from
subsequent acts of the- testatrix allegedly evidencing an
abandonment of the original intention to bequeath or devise
the properties concerned. As such, the revocation would not
affect the will itself, but merely the particular devise or
legacy. Only the total and absolute revocation can preclude
probate of the revoked testament (Trillana vs. Crisostomo,
supra).
As to the issue of estoppel, we have already ruled in
Guevara vs. Guevara, 98 Phil. 249, that the presentation

and probate of a will are requirements of public policy, being

primarily designed to protect the testator's expressed
wishes, which are entitled to respect as a consequence of
the decedent's ownership and right of disposition within legal
limits. Evidence of it is the duty imposed on a custodian of a
will to deliver the same to the Court, and the fine and
imprisonment prescribed for its violation (Revised Rule 75) It
would be non-sequitur to allow public policy to be evaded on
the pretext of estoppel. Whether or not the order overruling
the allegation of estoppel is still appealable or not, the
defense is patently unmeritorious and the Court of Appeals
correctly so ruled.
The last issue, that of revocation, is predicated on paragraph
2 of Article 957 of the Civil Code of 1
As observed by the Court of Appeals, the existence of any
such change or departure from the original intent of the
testatrix, expressed in her 1930 testament, is rendered
doubtful by the circumstance that the subsequent alienations
in 1943 and 1944 were executed in favor of the legatee
herself, appellee Dimagiba. In fact, as found by the Court of
Appeals in its decision annulling these conveyances
(affirmed in that point by this Supreme Court in Reyes vs.
Court of Appeals and Dimagiba, L-5618 and L-5620,
promulgated on July 31, 1954), "no consideration whatever
was paid by respondent Dimagiba" on account of the
transfers, thereby rendering it even more doubtful whether in
conveying the property to her legatee, the testatrix merely
intended to comply in advance with what she had ordained
in her testament, rather than an alteration or departure
therefrom. 1 Revocation being an exception, we believe,
with the Courts below, that in the circumstances of the
particular case, Article 957 of the Civil Code of the
Philippines does not apply to the case at bar.
Not only that, but even if it were applicable, the annulment of
the conveyances would not necessarily result in the
revocation of the legacies, if we bear in mind that the
findings made in the decision decreeing the annulment of
the subsequent 1943 and 1944 deeds of sale were also that
If the annulment was due to undue influence, as the quoted
passage implies, then the transferor was not expressing her
own free will and intent in making the conveyances. Hence,
it can not be concluded, either, that such conveyances
established a decision on her part to abandon the original
legacy. True it is that the legal provision quoted prescribes
that the recovery of the alienated property "even if it be by
reason of the nullity of the contract" does not revive the
legacy; but as pointed out by Scaevola (Codigo Civil, Vol.
XV, 4th Ed., pp. 324-325) the "nullity of the contract" can not
be taken in an absolute sense. 2 Certainly, it could not be
maintained, for example, that if a testator's subsequent
alienation were voided because the testator was mentally
deranged at the time, the revocatory effect ordained by the
article should still ensue. And the same thing could be said if
the alienation (posterior to the will) were avoided on account
of physical or mental duress. Yet, an alienation through
undue influence in no way differs from one made through
violence or intimidation. In either case, the transferor is not
expressing his real intent, 3 and it can not held that there
was in fact an alienation that could produce a revocation of
the anterior bequest.
Belen vs. BPI
Benigno Diaz executed a codicil on September 29, 1944 On
November 7, 1944, Benigno Diaz died; and the aforesaid
codicil, together with the will, was admitted to probate in
Special Proceedings No. 894 of the same Court of First
Instance of Manila. The proceedings for the administration of
the estate of Benigno Diaz were closed in 1950 and the
estate was thereafter put under the administration of the
appellee Bank of the Philippine Islands, as trustee for the
benefit of the legatees.
Filomena Diaz died on February 8, 1954, leaving two
legitimate children, Milagros Belen de Olaguera, married,
with seven (7) legitimate children, and Onesima D. Belen,
single.
On March 19, 1958, Onesima D. Belen filed a petition in
Special Proceedings No. 9226, contending that the amount
that would have appertained to Filomena Diaz under the
codicil should now be divided (equally) only between herself
and Milagros Belen de Olaguera, as the surviving children of
the said deceased, to the exclusion, in other words, of the
seven (7) legitimate children of Milagros Belen de Olaguera.
The court, in its order of May 23, 1958, denied, as we initially
pointed out, Onesima's petition.
From this order Onesima D. Belen has appealed to this
Court, insisting that (1) the Court below was in error in
holding that its former resolution of September 16, 1955 had
been affirmed by our decision of February 28, 1958 in the
case of Arguelles vs. Belen de Olaguera, G. R. No. L-10164
Feb. 28, 1958; and (2) that the term "sus descendientes

71

legitimos," as used in the codicil, should be interpreted to

mean descendants nearest in degree to the original legatee
Filomena Diaz. In the present case, they are her two
daughters (Milagros and Onesima Belen), thereby excluding
the seven grandchildren of said legatee.
As to the actual meaning of the provision
"El resto se distribuira a las siguientes personas que aun
viven, o a sus descendientes legitimos",
it is undeniable that by this clause the testator ordained a
simple substitution (sustitucion vulgar) with a plurality of
substitutes for each legatee. This form of substitution is
authorized by the first part of Article 860 of the Civil Code
(Art. 778 of the Code of 1889):
"Two or more persons may be substituted for one; and one
person for two or more heirs."
The issue is now squarely before us: do the words "sus
descendientes legitimos" refer conjointly to all living
descendants (children and grandchildren) of the legatee, as
a class; or do they refer to the descendants nearest in
degree?
Appellant Onesima Belen contends that the phrase should
be taken to mean the relatives nearest in degree to
Filomena Diaz; and that the legacy should be therefore
divided equally between her and her sister Milagros Belen
de Olaguera, to the exclusion of the latter's sons and
daughters, grandchildren of the original legatee, Filomena
Diaz. As authority in support of her thesis, appellant invokes
Article 959 of the Civil Code of the Philippines (reproducing
ne varietur Article 751 of the Code of 1889):

"The meaning of the word 'descendants', when used in a will

or deed to designate a class to take property passing by the
will or deed, has been frequently considered and decided by
the courts of England and the United States. The
established rule in England from an early date was that the
word 'descendants' or the word 'issue', unexplained by
anything in the context of the instrument, means all persons
descending lineally from another, to the remotest degree,
and includes persons so descended, even though their
parents are living, and that such descendants take per
capita and not per stirpes."
"The courts of this country are divided on the question of
whether in case of a gift or conveyance to 'descendants' or
'issue', children take concurrently with their parents. The socalled English rule has been adhered to in New York, New
Jersey, and Tennessee. . . . On the other hand, the courts of
Massachusetts, Maine, Rhode Island and South Carolina
have held that, in case of a gift or conveyance to
descendants or issue, unexplained by anything in the
context of the instrument, children do not take concurrently
with their parents."
We conclude that in the absence of other indications of
contrary intent, the proper rule to apply in the instant case is
that the testator, by designating a class or group of legatees,
intended all members thereof to succeed per capita, in
consonance with article 846. So that the original legacy to
Filomena Diaz should be equally divided among her
surviving children and grandchildren.
LEGAL OR INTESTATE SUCCESSION
XIX. GENERAL PROVISIONS
A. In General

"A distribution made in general terms in favor of the

testator's relatives shall be understood as made in favor of
those nearest in degree."
The argument fails to note that this article is specifically
limited in its application to the case where the beneficiaries
are relatives of the testator, not those of the legatee. In such
an event, the law assumes that the testator intended to refer
to the rules of intestacy, in order to benefit the relatives
closest to him, because, as Manresa observes,
But the ratio legis (that among a testator's relatives the
closest are dearest) obviously does not apply where the
beneficiaries are relatives of another person (the legatee)
and not of the testator. There is no logical reason in this
case to presume that the testator intended to refer to the
rules of intestacy, for he precisely made a testament and
provided substitutes for each legatee; nor can it be said that
his affections would prefer the nearest relatives of the
legatee to those more distant, since he envisages all of them
in a group, and only as mere substitutes for a preferred
beneficiary.
Should Article 959 (old Art. 751) be applied by analogy?
There are various reasons against this. The most important
one is that under this article, as recognized by the principal
commentators on the Code of 1889, the nearest exclude all
the farther relatives and the right of representation does not
operate.
The result would be that by applying to the descendants of
Filomena Diaz the "nearest relatives" rule of Article 959, the
inheritance would be limited to her children, or anyone of
them, excluding the grandchildren altogether. This could
hardly be the intention of the testator who, in the selfsame
clause 10 of his codicil (ante), speaks of "cuatro hijos de mi
difunto hermano Fabian" and of "los hijos de Domingo
Legarda," as well as of "descendientes legitimos" of the
other legatees, to us indicating clearly that he understood
well that hijos and descendientes are not synonymous
terms. Observe that, in referring to the substitutes of
Filomena Diaz, Nestor Santiago and Isabel M. de Santiago,
the testator, does not even use the description "sus hijos o
descendientes," but only "descendientes".
There is no doubt that, the testator's intention being the
cardinal rule of succession in the absence of compulsory
(forced) heirs, he could have rendered inoperative all the
articles mentioned, if he had so desired. But without any
other supporting circumstances, we deem it extremely
conjectural to hold that by the simple expression "o a sus
descendientes legitimos," the testator Benigno Diaz did
intend to circumvent all the legal provisions heretofore
quoted. It was incumbent upon appellant to prove such
intention on the part of the testator; yet she has not done so.
It is interesting to note that even under the Anglo-Saxon
doctrine, the courts are divided on the question whether a
bequest to "relatives" or "issue," made in general terms,
gives rise to a succession per capita or per stirpes. In Wyeth,
et al., vs. Crane, 174 N.E. 871, the Supreme Court of Illinois
said:

Art. 960. Legal or intestate succession takes place:

(1) If a person dies without a will, or with a void
will, or one which has subsequently lost its
validity;
(2) When the will does not institute an heir to,
or dispose of all the property belonging to the
testator. In such case, legal succession shall
take place only with respect to the property of
which the testator has not disposed;
(3) If the suspensive condition attached to the
institution of heir does not happen or is not
fulfilled, or if the heir dies before the testator,
or repudiates the inheritance, there being no
substitution, and no right of accretion takes
place;
(4) When the heir instituted is incapable of
succeeding, except in cases provided in this
Code. (912a)
Art. 961. In default of testamentary heirs, the law vests
the inheritance, in accordance with the rules hereinafter
set forth, in the legitimate and illegitimate relatives of
the deceased, in the surviving spouse, and in the State.
(913a)
Rosales vs. Rosales
In this Petition for Review of two (2) Orders of the Court of
First Instance of Cebu the question raised is whether the
widow whose husband predeceased his mother can inherit
from the latter, her mother-in-law.
In the course of the intestate proceedings, the trial court
issued an Order dated June 16, 1972 declaring the following
individuals the legal heirs of the deceased and prescribing
their respective share of the estate Fortunato T. Rosales
(husband) 1/4; Magna R. Acebes (daughter), 1/4;
Macikequerox Rosales, 1/4; and Antonio Rosales (son), 1/4.
This declaration was reiterated by the trial court in its Order
dated February 4, 1975. These Orders notwithstanding,
Irenea Rosales insisted in getting a share of the estate in her
capacity as the surviving spouse of the late Carterio
Rosales, son of the deceased, claiming that she is a
compulsory heir of her mother-in-law together with her son,
Macikequerox Rosales.
In sum, the petitioner poses two (2) questions for Our
resolution. First is a widow (surviving spouse) an intestate
heir of her mother-in-law? Second are the Orders of the
trial court which excluded the widow from getting a share of
the estate in question final as against the said widow?
Our answer to the first question is in the negative. Intestate
or legal heirs are classified into two (2) groups, namely,
those who inherit by their own right, and those who inherit by
the right of representation. 1 Restated, an intestate heir can
only inherit either by his own right, as in the order of
intestate succession provided for in the Civil Code, 2 or by
the right of representation provided for in Article 981 of the
same law.

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There is no provision in the Civil Code which states that

a widow (surviving spouse) is an intestate heir of her
mother-in-law. The entire Code is devoid of any provision
which entitles her to inherit from her mother-in-law either by
her own right or by the right of representation. The
provisions of the Code which relate to the order of intestate
succession (Articles 978 to 1014) enumerate with meticulous
exactitude the intestate heirs of a decedent, with the State
as the final intestate heir. The conspicuous absence of a
provision which makes a daughter-in-law an intestate heir of
the deceased all the more confirms Our observation. If the
legislature intended to make the surviving spouse an
intestate heir of the parent-in-law, it would have so provided
in the Code.
The aforesaid provision of law 3 refers to the estate of the
deceased spouse in which case the surviving spouse (widow
or widower) is a compulsory heir. It does not apply to the
estate of a parent-in-law. Indeed, the surviving spouse is
considered a third person as regards the estate of the
parent-in-law
By the same token, the provision of Article 999 of the Civil
Code aforecited does not support petitioner's claim. A
careful examination of the said Article confirms that the
estate contemplated therein is the estate of the deceased
spouse. The estate which is the subject matter of the
intestate estate proceedings in this case is that of the
deceased Petra V. Rosales, the mother-in-law of the
petitioner. It is from the estate of Petra V. Rosales that
Macikequerox Rosales draws a share of the inheritance by
the right of representation as provided by Article 981 of the
Code.
Article 971 explicitly declares that Macikequerox Rosales is
called to succession by law because of his blood
relationship. He does not succeed his father, Carterio
Rosales (the person represented) who predeceased his
grandmother, Petra Rosales, but the latter whom his father
would have succeeded. Petitioner cannot assert the same
right of representation as she has no filiation by blood with
her mother-in-law.
Petitioner however contends that at the time of the death of
her husband Carterio Rosales he had an inchoate or
contingent right to the properties of Petra Rosales as
compulsory heir. Be that as it may, said right of her husband
was extinguished by his death that is why it is their son
Macikequerox Rosales who succeeded from Petra Rosales
by right of representation. He did not succeed from his
deceased father, Carterio Rosales.
On the basis of the foregoing observations and conclusions,
We find it unnecessary to pass upon the second question
posed by the petitioner. Accordingly, it is Our considered
opinion, and We so hold, that a surviving spouse is not an
intestate heir of his or her parent-in-law. WHEREFORE, in
view of the foregoing, the Petition is hereby DENIED for lack
of merit, with costs against the petitioner. Let this case be
remanded to the trial court for further proceedings.

heir of Pelagia de la Cruz, deceased owner of the property,

and was included in the extrajudicial partition agreement by
mistake; and that although he had disposed of the three lots
adjudicated to him, nevertheless the proceeds of the sale
were not sufficient to develop and improve properly the
subdivided estate. The answer contained a counterclaim
wherein the defendant alleged that the plaintiff had likewise
sold her share in the estate for P10,000.00, and that the
extrajudicial partition agreement being void insofar as the
latter was concerned, he was entitled to one-fourth (1/4) of
the proceeds as his share by way of reversion. The
defendant prayed that the complaint be dismissed; that the
extrajudicial partition agreement be declared void with
respect to the plaintiff; and, on his counterclaim, that the
plaintiff be ordered to pay him the sum of P2,500.00.
In its decision dated November 3, 1966, the court a quo held
that the defendant, being a party to the extrajudicial partition
agreement, was estopped from raising in issue the right of
the plaintiff to inherit from the decedent Pelagia de la Cruz;
hence, he must abide by the terms of the agreement. The
court ordered the defendant "to perform his obligations to
develop Lots 1, 2 and 3 of (LRC) Psd-29561 as described on
page 2 of the Extrajudicial Partition Agreement" (meaning,
apparently, that the defendant should develop the
subdivision because said Lots 1, 2 and 3 were intended to
be sold for this purpose), and to pay the plaintiff the sum of
P2,000.00 as actual damages, the sum of P500.00 as
attorney's fees, and the costs. No disposition was made of
defendant's counterclaim. The defendant filed a "Motion for
New Trial' but the same was denied. Hence, this appeal.
In the stipulation of facts submitted to the court below, the
parties admit that the owner of the estate, subject matter of
the extrajudicial partition agreement, was Pelagia de la Cruz,
who died intestate on October 16, 1962 that defendantappellant is a nephew of the said decedent; that plaintiffappellee is a grandniece of Pelagia de la Cruz, her mother,
Marciana de la Cruz, being a niece of the said Pelagia de la
Cruz; that plaintiff-appellee's mother died on September 22,
1935, thus pre-deceasing Pelagia de la Cruz; and that the
purpose of the extrajudicial partition agreement was to divide
and distribute the estate among the heirs of Pelagia de la
Cruz.
The pivotal question is whether, in the premises, plaintiffappellee is an heir of the decedent. We are convinced that
she is not. Plaintiff-appellee being a mere grandniece of
Pelagia de la Cruz, she could not inherit from the latter by
right of representation.
"ART. 972.
The right of representation
takes place in the direct descending line, but
never in the ascending.
"In the collateral line, it takes place only in favor of
the children of brothers or sisters, whether they be
of the full or half blood."
Much less could plaintiff-appellee inherit in her own right.

Art. 962. In every inheritance, the relative nearest in

degree excludes the more distant ones, saving the right
of representation when it properly takes place.
Relatives in the same degree shall inherit in equal
shares, subject to the provisions of article 1006 with
respect to relatives of the full and half blood, and of
Article 987, paragraph 2, concerning division between
the
paternal
and
maternal
lines.
(912a)
Delos Santos vs. Dela Cruz

"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.

From the record of this case, we cull the following salient

facts: On May 21, 1965, Gertrudes de los Santos filed a
complaint for specific performance against Maximo de la
Cruz, alleging, among others, that on August 24, 1963, she
and several co-heirs, including the defendant, executed an
extrajudicial partition agreement (a copy of which was
attached to the complaint) over a certain portion of land with
an area of around 20,000 sq. m.; that the parties thereto had
agreed to adjudicate three (3) lots to the defendant, in
addition to his corresponding share, on condition that the
latter would undertake the development and subdivision of
the estate which was the subject matter of the agreement, all
expenses in connection therewith to be defrayed from the
proceeds of the sale of the aforementioned three (3) lots;
that in spite of demands by the plaintiff, by the other coheirs, and by the residents of the subdivision, the defendant
refused to perform his aforesaid obligation although he had
already sold the aforesaid lots. The plaintiff prayed the court
to order the defendant to comply with his obligation under
the extra-judicial partition agreement and to pay the sum of
P1,000.00 as attorney's fees and costs.

But what is the legal effect of plaintiff-appellee's inclusion

and participation in the extrajudicial partition agreement
insofar as her right to bring the present action is concerned?
They did not confer upon her the right to institute this action.
The express purpose of the extrajudicial partition agreement,
as admitted by the parties in the stipulation of facts, was to
divide the estate among the heirs of Pelagia de la Cruz.
Indeed, the said agreement itself states that plaintiffappellee was participating therein in representation of her
deceased mother.

In his answer, the defendant admitted the due execution of

the extrajudicial partition agreement, but set up the
affirmative defenses that the plaintiff had no cause of action
against him because the said agreement was void with
respect to her, for the reason that the plaintiff was not an

Partition of property affected between a person entitled to

inherit from the deceased owner thereof and another person
who thought he was an heir, when he was not really and
lawfully such, to the prejudice of the rights of the true heir
designated by law to succeed the deceased, is null and void

It is quite apparent that in executing the partition agreement,

the parties thereto were laboring under the erroneous belief
that plaintiff-appellee was one of the legal heirs of Pelagia
de la Cruz. Plaintiff-appellee not being such an heir, the
partition is void with respect to her, pursuant to Article 1105
of the Civil Code, which reads:
"ART. 1105.
A partition which includes a
person believed to be an heir, but who is not, shall
be void only with respect to such person."

73

(De Torres vs. De Torres, et al., 28 Phil. 49). A fortiori,

plaintiff-appellee could hardly derive from the agreement the
right to have its terms enforced.
The extrajudicial partition agreement being void with respect
to plaintiff-appellee, she may not be heard to assert estoppel
against defendant-appellant. Estoppel cannot be predicated
on a void contract (17 Am. Jur. 605), or on acts which are
prohibited by law or are against public policy
The award of actual damages in favor of plaintiff-appellee
cannot be sustained in view of the conclusion we have
arrived at above. Furthermore, actual or compensatory
damages must be duly proved (Article 2199, Civil Code).
Here, no proof of such damages was presented inasmuch
as the case was decided on a stipulation of facts and no
evidence was adduced before the trial court.
Such being the case, defendant-appellant is apparently
correct in his contention that the lower court erred in not
passing on his counterclaim and, consequently, in not
sentencing appellee to turn over to him his corresponding
share of said portion received by appellee under the void
partition. Remote relatives or unrelated persons who unduly
received and took possession of the property of a deceased
person without any right, by virtue of a null and void partition,
must restore it to the legitimate successor in the inheritance
(De Torres vs. De Torres, et al., supra). Of course, if such
share has already been disposed of by appellee to a bona
fide purchaser, as seems to be indicated in the unproven
allegations of the counterclaim, We cannot render judgment
awarding any specific amount to defendant-appellant as his
proportionate share of the proceeds of such sale for the
reason that, as already stated above, this aspect of the
counterclaim has not been touched upon in the stipulation of
facts nor has it been supported by evidence which appellant
should have presented in the lower court but did not.
C. Right Representation
Art. 970. Representation is a right created by fiction of
law, by virtue of which the representative is raised to the
place and the degree of the person represented, and
acquires the rights which the latter would have if he
were living or if he could have inherited. (942a)
Art. 971. The representative is called to the succession
by the law and not by the person represented. The
representative does not succeed the person represented
but the one whom the person represented would have
succeeded. (n)
Art. 972. The right of representation takes place in the
direct descending line, but never in the ascending.
In the collateral line, it takes place only in favor of the
children of brothers or sisters, whether they be of the
full or half blood. (925)
Art. 973. In order that representation may take place, it is
necessary that the representative himself be capable of
succeeding the decedent. (n)
Art. 974. Whenever there is succession by
representation, the division of the estate shall be made
per stirpes, in such manner that the representative or
representatives shall not inherit more than what the
person they represent would inherit, if he were living or
could inherit. (926a)
Art. 975. When children of one or more brothers or
sisters of the deceased survive, they shall inherit from
the latter by representation, if they survive with their
uncles or aunts. But if they alone survive, they shall
inherit in equal portions. (927)
Art. 976. A person may represent him whose inheritance
he has renounced. (928a)
Art. 977. Heirs who repudiate their share may not be
represented.
(929a)
Art. 982. The grandchildren and other descendants shall
inherit by right of representation, and if any one of them
should have died, leaving several heirs, the portion
pertaining to him shall be divided among the latter in
equal portions. (933)
Art. 902. The rights of illegitimate children set forth in
the preceding articles are transmitted upon their death
to their descendants, whether legitimate or illegitimate.
(843a)
Art. 992. An illegitimate child has no right to inherit ab
intestato from the legitimate children and relatives of his
father or mother; nor shall such children or relatives
inherit in the same manner from the illegitimate child.
(943a)
Art. 1005. Should brothers and sisters survive together
with nephews and nieces, who are the children of the
descendant's brothers and sisters of the full blood, the
former shall inherit per capita, and the latter per stirpes.
(948)
Art. 1006. Should brother and sisters of the full blood
survive together with brothers and sisters of the half
blood, the former shall be entitled to a share double that
of the latter. (949)

Art. 1007. In case brothers and sisters of the half blood,

some on the father's and some on the mother's side, are
the only survivors, all shall inherit in equal shares
without distinction as to the origin of the property. (950)
Art. 1008. Children of brothers and sisters of the half
blood shall succeed per capita or per stirpes, in
accordance with the rules laid down for the brothers and
sisters of the full blood. (915)
Teotica vs. Del Val Chan
Maria Mortera y Balsalobre Vda. de Aguirre died on July 14,
1955 in the City of Manila leaving properties worth
P600,000.00. She left a will written in Spanish which she
executed at her residence in No. 2 Legarda St., Quiapo,
Manila. She affixed her signature at the bottom of the will
and on the left margin of each and every page thereof in the
presence of Pilar Borja, Pilar G. Sanchez, and Modesto
Formilleza, who in turn affixed their signatures below the
attestation clause and on the left margin of each and every
page of the will in the presence of the testatrix and of each
other. Said will was acknowledged before Notary Public
Niceforo S. Agaton by the testatrix and her witnesses.
Among the many legacies and devises made in the will was
one of P20,000.00 to Rene A. Teotico, married to the
testatrix's niece named Josefina Mortera. To said spouses
the testatrix left the usufruct of her interest in the Calvo
building, while the naked ownership thereof she left in equal
parts to her grandchildren who are the legitimate children of
said spouses. The testatrix also instituted Josefina Mortera
as her sole and universal heir to all the remainder of her
properties not otherwise disposed of in the will.
Ana del Val Chan, claiming to be an adopted child of
Francisca Mortera, a deceased sister of the testatrix, as well
as an acknowledged natural child of Jose Mortera, a
deceased brother of the same testatrix, filed on September
2, 1955 an opposition to the probate of the will alleging the
following grounds: (1) said will was not executed as required
by law; (2) the testatrix was physically and mentally
incapable to execute the will at the time of its execution; and
(3) the will was executed under duress, threat or influence of
fear.
After the parties had presented their evidence, the probate
court rendered its decision on November 10, 1960 admitting
the will to probate but declaring the disposition made in favor
of Dr. Rene Teotico void with the statement that the portion
to be vacated by the annulment should pass to the testatrix's
heirs by way of intestate succession.
The motions for reconsideration above adverted to having
been denied, both petitioner and oppositor appealed from
the decision, the former from that portion which nullifies the
legacy in favor of Dr. Rene Teotico and declares the vacated
portion as subject of succession in favor of the legal heirs,
and the latter from that portion which admits the will to
probate. And in this instance both petitioner and oppositor
assign several error which, stripped of non-essentials, may
be boiled down to the following: (1) Has oppositor Ana del
Val Chan the right to intervene in this proceeding?; (2) Has
the will in question been duly admitted to probate?; and (3)
Did the probate court commit an error in passing on the
intrinsic validity of the provisions of the will and in
determining who should inherit the portion to be vacated by
the nullification of the legacy made in favor of Dr. Rene
Teotico?
It is a well-settled rule that in order that a person may be
allowed to intervene in a probate proceeding he must have
an interest in the estate, or in the will, or in the property to be
affected by it either as executor or as a claimant of the
estate (Ngo The Hua vs. Chung Kiat Hua, et al., L-17091,
September 30, 1963); and an interested party has been
defined as one who would be benefitted by the estate such
as an heir or one who has a claim against the estate like a
creditor (Idem.). On the other hand, in Saguinsin vs.
Lindayag, et al., L-17750, December 17, 1962, this Court
said:
"According to Section 2, Rule 80 of the Rules of Court, a
petition for letters of administration must be filed by an
'interested person.' An interested party has been defined in
this connection as one who would be benefitted by the
estate, such as an heir, or one who has a claim against the
estate, such as a creditor (Intestate Estate of Julio
Magbanwa 40 O.G., 1171). And it is well settled in this
jurisdiction that in civil actions as well as special
proceedings, the interest required in order that a person may
be a party thereto must be material and direct, and not
merely indirect or contingent. (Trillana vs. Crisostomo, G. R.
No. L-3370, August 22, 1951; Rapinosa vs. Barrion, 70 Phil.
311)."
The question now may be asked: Has oppositor any interest
in any of the provisions of the will, and, in the negative,
would she acquire any right to the estate in the event that
the will is denied probate?

74

Diaz vs. IAC

Under the terms of the will, oppositor has no right to
intervene because she has no interest in the estate either as
heir, executor, or administrator, nor does she have any claim
to any property affected by the will, because it nowhere
appears therein any provision designating her as heir,
legatee or devisee of any portion of the estate. She has also
no interest in the will either as administratrix or executrix.
Neither has she any claim against any portion of the estate
because she is not a co-owner thereof, and while she
previously had an interest in the Calvo building located in
Escolta, she had already disposed of it long before the
execution of the will.
"'Between the natural child and the legitimate relatives of the
father or mother who acknowledged it, the Code denies any
right of succession. They cannot be called relatives and they
have no right to inherit. Of course, there is a blood tie, but
the law does not recognize it. In this, article 943 is based
upon the reality of the facts and upon the presumptive will of
the interested parties; the natural child is disgracefully
looked down upon by the legitimate family; the legitimate
family is, in turn, hated by the natural child; the latter
considers the privileged condition of the former and the
resources of which it is thereby deprived; the former, in turn,
sees in the natural child nothing but the product of sin, a
palpable evidence of a blemish upon the family. Every
relation is ordinarily broken in life; the law does no more
them recognize this truth, by avoiding further grounds of
resentment.' (7 Manresa, 3d ed., p. 110.)"
The oppositor cannot also derive comfort from the fact that
she is an adopted child of Francisca Mortera because under
our law the relationship established by adoption is limited
solely to the adopter and the adopted does not extend to the
relatives of the adopting parents or of the adopted child
except only as expressly provided for by law. Hence, no
relationship is created between the adopted and the
collaterals of the adopting parents. As a consequence, the
adopted is an heir of the adopter but not of the relatives of
the adopter.
"The relationship established by the adoption, however, is
limited to the adopting parent, and does not extend to his
other relatives, except as expressly provided by law. Thus,
the adopted child cannot be considered as a relative of the
ascendants and collaterals of the adopting parents, nor of
the legitimate children which they may have after the
adoption, except that the law imposes certain impediments
to marriage by reason of adoption. Neither are the children
of the adopted considered as descendants of the adopter.
The relationship created is exclusively between, the adopter
and the adopted, and does not extend to the relatives of
either." (Tolentino, Civil Code of the Philippines, Vol. 1, p.
652)
We have examined the evidence on the matter and we are
fully in accord with the foregoing observation. Moreover, the
mere claim that Josefina Mortera and her husband Rene
Teotico had the opportunity to exert pressure on the testatrix
simply because she lived in their house several years prior
to the execution of the will and that she was old and
suffering from hypertension in that she was virtually isolated
from her friends for several years prior to her death is
insufficient to disprove what the instrumental witnesses had
testified that the testatrix freely and voluntarily and with full
consciousness of the solemnity of the occasion executed the
will under consideration. The exercise of improper pressure
and undue influence must be supported by substantial
evidence and must be of a kind that would overpower and
subjugate the mind of the testatrix as to destroy her free
agency and make her express the will of another rather than
her own (Coso vs. Deza, 42 Phil., 596). The burden is on the
person challenging the will that such influence was exerted
at the time of its execution, a matter which here was not
done, for the evidence presented not only is sufficient but
was disproved by the testimony the instrumental witnesses.
The question of whether the probate court could determine
the intrinsic validity of the provisions of a will has been
decided by this Court in a long line of decisions among
which the following may be cited: "Opposition to the intrinsic
validity or legality of the provisions of the will cannot be
entertained in probate proceeding because its only purpose
is merely to determine if the will has been executed in
accordance with the requirements of the law."
"To establish conclusively as against everyone, and once for
all, the facts that a will was executed with the formalities
required by law and that the testator was in a condition to
make a will, is the only purpose of the proceedings under the
new code for the probate of a will. (Sec. 625.) The judgment
in such proceedings determines and can determine nothing
more. In them the court has no power to pass upon the
validity of any provisions made in the will. It can not decide,
for example, that a certain legacy is void and another one
valid."

Private respondent filed a Petition dated January 23, 1976

with the Court of First Instance of Cavite in Sp. Proc. Case
No. B-21, "In The Matter of the Intestate Estate of the late
Simona Pamuti Vda. de Santero," praying among other
things, that the corresponding letters of Administration be
issued in her favor and that she be appointed as special
administratrix of the properties of the deceased Simona
Pamuti Vda. de Santero.
It is undisputed: 1) that Felisa Pamuti Jardin is a niece of
Simona Pamuti Vda. de Santero who together with Felisa's
mother Juliana were the only legitimate children of the
spouses Felipe Pamuti and Petronila Asuncion; 2) that
Juliana married Simon Jardin and out of their union were
born Felisa Pamuti and another child who died during
infancy; 3) that Simona Pamuti Vda. de Santero is the widow
of Pascual Santero and the mother of Pablo Santero; 4) that
Pablo Santero was the only legitimate son of his parents
Pascual Santero and Simona Pamuti Vda. de Santero; 5)
that Pascual Santero died in 1970; Pablo Santero in 1973
and Simona Santero in 1976; 6) that Pablo Santero, at the
time of his death was survived by his mother Simona
Santero and his six minor natural children to wit: four minor
children with Anselma Diaz and two minor children with
Felixberta Pacursa.
Petitioner Anselma Diaz, as guardian of her minor children,
filed her "Opposition and Motion to Exclude Felisa PamutiJardin dated March 13, 1980, from further taking part or
intervening in the settlement of the intestate estate of
Simona Pamuti Vda. de Santero, as well as in the intestate
estate of Pascual Santero and Pablo Santero.
On May 20, 1980, Judge Ildefonso M. Bleza issued an order
excluding Felisa Jardin "from further taking part or
intervening in the settlement of the intestate estate of
Simona Pamuti Vda. de Santero, as well as in the intestate
estates of Pascual Santero and Pablo Santero and declared
her to be, not an heir of the deceased Simona Pamuti Vda.
de Santero." 3
After her Motion for Reconsideration was denied by the trial
court in its order dated November 1, 1980, Felisa P. Jardin
filed her appeal to the Intermediate Appellate Court in CAG.R. No. 69814-R. A decision 4 was rendered by the
Intermediate Appellate Court on December 14, 1983
(reversing the decision of the trial court) the dispositive
portion of which reads "WHEREFORE, finding the Order
appealed from not consistent with the facts and law
applicable, the same is hereby set aside and another one
entered sustaining the Orders of December 1 and 9, 1976
declaring the petitioner as the sole heir of Simona Pamuti
Vda. de Santero and ordering oppositors-appellees not to
interfere in the proceeding for the declaration of heirship in
the estate of Simona Pamuti Vda. de Santero."

The real issue in this case may be briefly stated as follows

who are the legal heirs of Simona Pamuti Vda. de
Santero her niece Felisa Pamuti Jardin or her
grandchildren (the natural children of Pablo Santero)?
The dispute at bar refers only to the intestate estate of
Simona Pamuti Vda. de Santero and the issue here is
whether oppositors-appellees (petitioners herein) as
illegitimate children of Pablo Santero could inherit from
Simona Pamuti Vda. de Santero, by right of representation
of their father Pablo Santero who is a legitimate child of
Simona Pamuti Vda. de Santero.
Now then what is the appropriate law on the matter?
Petitioners contend in their pleadings that Art. 990 of the
New Civil Code is the applicable law on the case. They
contend that said provision of the New Civil Code modifies
the rule in Article 941 (Old Civil Code) and recognizes the
right of representation (Art. 970) to descendants, whether
legitimate or illegitimate and that Art. 941, Spanish Civil
Code denied illegitimate children the right to represent their
deceased parents and inherit from their deceased
grandparents, but that Rule was expressly changed and/or
amended by Art. 990 New Civil Code which expressly grants
the illegitimate children the right to represent their deceased
father (Pablo Santero) in the estate of their grandmother
(Simona Pamuti)" 5
Petitioners' contention holds no water. Since the hereditary
conflict refers solely to the intestate estate of Simona Pamuti
Vda. de Santero, who is the legitimate mother of Pablo
Santero, the applicable law is the provision of Art. 992 of the
Civil Code which reads as follows:
ART. 992.
An illegitimate child has no
right to inherit ab intestato from the legitimate
children and relatives of his father or mother; nor
shall such children or relatives inherit in the same
manner from the illegitimate child. (943a).

75

Pablo Santero is a legitimate child, he is not an illegitimate

child. On the other hand, the oppositors (petitioners herein)
are the illegitimate children of Pablo Santero.
Article 992 of the New Civil Code provides a barrier or iron
curtain in that it prohibits absolutely a succession ab
intestato between the illegitimate child and the legitimate
children and relatives of the father or mother of said
legitimate child. They may have a natural tie of blood, but
this is not recognized by law for the purposes of Art. 992.
Between the legitimate family and the illegitimate family
there is presumed to be an intervening antagonism and
incompatibility. The illegitimate child is disgracefully looked
down upon by the legitimate family; the family is in turn,
hated by the illegitimate child; the latter considers the
privileged condition of the former, and the resources of
which it is thereby deprived; the former, in turn, sees in the
illegitimate child nothing but the product of sin, palpable
evidence of a blemish broken in life; the law does no more
than recognize this truth, by avoiding further grounds of
resentment. 6
Thus, petitioners herein cannot represent their father Pablo
Santero in the succession of the letter to the intestate estate
of his legitimate mother Simona Pamuti Vda. de Santero,
because of the barrier provided for under Art. 992 of the
New Civil Code.
"In the Spanish Civil Code of 1889 the right of
representation was admitted only within the
legitimate family; so much so that Article 943 of
that Code prescribed that an illegitimate child can
not inherit ab intestato from the legitimate children
and relatives of his father and mother. The Civil
Code of the Philippines apparently adhered to this
principle since it reproduced Article 943 of the
Spanish Code in its own Art. 992, but with fine
inconsistency, in subsequent articles (990, 995
and 998) our Code allows the hereditary portion of
the illegitimate child to pass to his own
descendants, whether legitimate or illegitimate. So
that while Art, 992 prevents the illegitimate issue
of a legitimate child from representing him in the
intestate succession of the grandparent, the
illegitimates of an illegitimate child can now do so.
This
difference
being
indefensible
and
unwarranted, in the future revision of the Civil
Code we shall have to make a choice and decide
either that the illegitimate issue enjoys in all cases
the right of representation, in which case Art. 992
must be suppressed; or contrariwise maintain said
article and modify Articles 995 and 998. The first
solution would be more in accord with an
enlightened attitude vis-a-vis illegitimate children.
(Reflections on the Reform of Hereditary
Succession, JOURNAL of the Integrated Bar of
the Philippines, First Quater, 1976, Volume 4,
Number 1, pp. 40-41).
It is therefore clear from Article 992 of the New Civil Code
that the phrase "legitimate children and relatives of his father
or mother" includes Simona Pamuti Vda. de Santero as the
word "relative" includes all the kindred of the person spoken
of. 7 The record shows that from the commencement of this
case the only parties who claimed to be the legitimate heirs
of the late Simona Pamuti Vda. de Santero are Felisa
Pamuti Jardin and the six minor natural or illegitimate
children of Pablo Santero. Since petitioners herein are
barred by the provisions of Article 992, the respondent
Intermediate Appellate Court did not commit any error in
holding Felisa Pamuti-Jardin to be the sole legitimate heir to
the intestate estate of the late Simona Pamuti Vda. de
Santero.
WHEREFORE, this petition is hereby DISMISSED, and the
assailed decision is hereby AFFIRMED
Debacayo vs. Feraris
Melodia Ferraris was a resident of Cebu City until 1937
when she transferred to Intramuros, Manila. She was known
to have resided there continuously until 1944. Thereafter, up
to the filing on December 22, 1960 of the petition for the
summary settlement of her estate, she has not been heard
of and her whereabouts are still unknown. More than ten
(10) years having elapsed since the last time she was known
to be alive, she was declared presumptively dead for
purposes of opening her succession and distributing her
estate among her heirs.
Melodia Ferraris left properties in Cebu City, consisting of
one third (1/3) share in the estate of her aunt, Rosa Ferraris,
valued at P6,000.00, more or less, and which was
adjudicated to her in Special Proceeding No. 13-V of the
same court.
The deceased Melodia Ferraris left no surviving direct
descendant, ascendant, or spouse, but was survived only by

collateral relatives, namely, Filomena Abellana de Bacayo,

an aunt, and half- sister of decedent's father, Anacleto
Ferraris; and by Gaudencia, Catalina, Conchita, and Juanito,
all surnamed Ferraris, her nieces and nephew, who were the
children of Melodia's only brother of full blood, Arturo
Ferraris, who pre-deceased her (the decedent). These two
classes of heirs claim to be the nearest intestate heirs and
seek to participate in the estate of said Melodia Ferraris.
The sole issue to be resolved in this case is: Who should
inherit the intestate estate of a deceased person when he or
she is survived only by collateral relatives, to wit: an aunt
and the children of a brother who predeceased him or her?
Otherwise, will the aunt concur with the children of the
decedent's brother in the inheritance or will the former be
excluded by the latter?
Against the above ruling, petitioner-appellant contends in the
present appeal that she is of the same or equal degree of
relationship as the oppositors-appellees, three degrees
removed from the decedent; and that under article 975 of the
New Civil Code no right or representation could take place
when the nieces and nephew of the decedent do not concur
with an uncle or aunt, as in the case at bar, but rather the
former succeed in their own right.
We agree with appellants that as an aunt of the deceased,
she is as far distant as the nephews from the decedent
(three degrees) since in the collateral line to which both
kinds of relatives belong degrees are counted by first
ascending to the common ancestor and then descending to
the heir (Civil Code, Art. 966). Appellant is likewise right in
her contention that nephews and nieces alone do not inherit
by right of representation (i.e., per stirpes) unless concurring
with brothers or sisters of the deceased, as provided
expressly by Article 975:
"ART. 975.
When children of one or more
brothers or sisters of the deceased survive, they
shall inherit from the latter by representation, if
they survive with their uncles or aunts. But if they
alone survive, they shall inherit in equal portions."
Nevertheless, the trial court was correct when it held that, in
case of intestacy, nephews and nieces of the de cujus
exclude all other collaterals (aunts and uncles, first cousins,
etc.) from the succession. This is readily apparent from
articles 1001, 1004, 1005, and 1009 of the Civil Code of the
Philippines, that provided as follows:
Under the last article (1009), the absence of brothers,
sisters, nephews and nieces of the decedent is a
precondition to the other collaterals (uncles, cousins, etc.)
being called to the succession. This was also and more
clearly the case under the Spanish Civil Code of 1889, that
immediately preceded the Civil Code now in force (R. A.
386). Thus, Articles 952 and 954 of the Code of 1889
prescribed as follows:
"ART. 952.
In the absence of brothers or
sisters and of nephews or nieces, children of the
former, whether of the whole blood or not, the
surviving spouse, if not separated by a final
decree of divorce shall succeed to the entire
estate of the deceased."
"ART. 954.
Should there be neither
brothers nor sisters, nor children of brothers or
sisters, nor a surviving spouse, the other collateral
relatives shall succeed to the estate of deceased.
The latter shall succeed without distinction of lines
or preference among them by reason of the whole
blood."
It will be seen that under the preceding articles, brothers and
sisters and nephews and nieces inherited ab intestato ahead
of the surviving spouse, while other collaterals succeeded
only after the widower or widow. The present Civil Code of
the Philippines merely placed the spouse on a par with the
nephews and nieces and brothers and sisters of the
deceased, but without altering the preferred position of the
latter vis a vis the other collaterals.
Appellants quote paragraph 2 of Tolentino's commentaries
to Article 1009 of the present Civil Code as declaring that
Article 1009 does not establish a rule of preference. Which is
true as to "other collaterals", since preference among them
is according to their proximity to the decedent, as
established by Article 962, paragraph 1.
"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."
But Tolentino does not state that nephews and nieces
concur with other collaterals of equal degree. On the
contrary, in the first paragraph of his commentaries to Article

76

1009 (Vol. II, p. 439) (which counsel for appellants had

unethically omitted to quote), Tolentino expressly states:
"Other Collaterals. The last of the relatives of
the decedent to succeed in intestate succession
are the collaterals other than brothers or sisters or
children of brothers or sisters. They are, however,
limited to relatives within the fifth degree. Beyond
this, we can safely say, there is hardly any
affection to merit the succession of collaterals.
Under the law, therefore, persons beyond the fifth
degree are no longer considered as relatives, for
successional purposes.
"Article 1009 does not state any order of
preference. However, this article should be
understood in connection with the general rule that
the nearest relatives exclude the farther.
Collaterals of the same degree inherit in equal
parts, there being no right of representation. They
succeed without distinction of lines or preference
among them on account of the whole blood
relationship." (Italics supplied)
We, therefore, hold, and so rule, that under our laws of
succession, a decedent's uncles and aunts may not succeed
ab intestato so long as nephews and nieces of the decedent
survive and are willing and qualified to succeed.
Corpus vs. Corpus
Teodoro R. Yangco died in Manila on April 20, 1939 at the
age of seventy-seven years. His will dated August 29, 1934
was probated in the Court of First Instance of Manila in
Special Proceeding No. 54863. The decree of probate was
affirmed in this Court's 1941 decision in Corpus vs. Yangco,
73 Phil. 527. The complete text of the will is quoted in that
decision.
Teodoro R. Yangco was the son of Luis Rafael Yangco and
Ramona Arguelles, the widow of Tomas Corpus. Before her
union with Luis Rafael Yangco, Ramona had begotten five
children with Tomas Corpus, two of whom were the
aforenamed Pablo Corpus and Jose Corpus.
Pursuant to the order of the probate court, a project of
partition dated November 26, 1945 was submitted by the
administrator and the legatees named in the will. That
project of partition was opposed by the estate of Luis R.
Yangco whose counsel contended that an intestacy should
be declared because the will does not contain an institution
of heir. It was also opposed by Atty. Roman A. Cruz, who
represented Juanita Corpus, Pedro Martinez and Juliana de
Castro. Juanita Corpus was already dead when Atty. Cruz
appeared as her counsel.
The probate court in its order of December 26, 1946
approved the project of partition. It held that in certain
clauses of the will the testator intended to conserve his
properties not in the sense of disposing of them after his
death but for the purpose of preventing that "tales bienes
fuesen malgastados o desfilpar rados por los legatarios" and
that if the testator intended a perpetual prohibition against
alienation, that condition would be regarded "como no
puesta o no existente". It concluded that "no hay motivos
legales o morales para que la sucession de Don Teodoro R.
Yangco sea declarada intestada."
On September 20, 1949, the legatees executed an
agreement for the settlement and physical partition of the
Yangco estate. The probate court approved that agreement
and noted that the 1945 project of partition was pro tanto
modified. That did not set at rest the controversy over the
Yangco estate.
The trial court in its decision of July 2, 1956 dismissed the
action on the grounds of res judicata and laches. It held that
the intrinsic validity of Yangco's will was passed upon in its
order dated December 26, 1946 in Special Proceeding No.
54863 approving the project of partition for the testator's
estate.
Appellant Corpus contends in this appeal that the trial court
erred in holding (1) that Teodoro R. Yangco was a natural
child, (2) that his will had been duly legalized, and (3) that
plaintiff's action is barred by res judicata and laches.
In the disposition of this appeal, it is not necessary to resolve
whether Yangco's will had been duly legalized and whether
the action of Tomas Corpus is barred by res judicata and
laches. The appeal may be resolved by determining whether
Juanita Corpus, the mother of appellant Tomas Corpus, was
a legal heir of Yangco. Has Tomas Corpus a cause of action
to recover his mother's supposed intestate share in Yangco's
estate?
To answer that question, it is necessary to ascertain
Yangco's filiation. The trial court found that Yangco "a su
muerte tambien le sbrevivieron Luis y Paz appellidados

Yangco, hermanos naturales reconocidos por su padre

natural Luis R. Yangco". The basis of the trial court's
conclusion that Teodoro R. Yangco was an acknowledged
natural child and not a legitimate child was the statement in
the will of his father, Luis Rafael Yangco, dated June 14,
1907, that Teodoro and his three other children were his
acknowledged natural children.
On the other hand, the children of Ramona Arguelles and
Tomas Corpus are presumed to be legitimate. A marriage is
presumed to have taken place between Ramona and
Tomas. Semper praesumitur pro matrimonio. It is disputably
presumed "That a man and a woman deporting themselves
as husband and wife have entered into a lawful contract of
marriage"; "that a child born in lawful wedlock, there being
no divorce, absolute or from bed and board, is legitimate",
and "that things have happened according to the ordinary
course of nature and the ordinary habits of life" (Sec. 5[z],
[bb] and [cc], Rule 131, Rules of Court).
Since Teodoro R. Yangco was an acknowledged natural
child or was illegitimate and since Juanita Corpus was the
legitimate child of Jose Corpus, himself a legitimate child, we
hold that appellant Tomas Corpus has no cause of action for
the recovery of the supposed hereditary share of his mother,
Juanita Corpus, as a legal heir, in Yangco's estate. Juanita
Corpus was not a legal heir of Yangco because there is no
reciprocal succession between legitimate and illegitimate
relatives. The trial court did not err in dismissing the
complaint of Tomas Corpus.
Appellant Corpus concedes that if Teodoro R. Yangco was a
natural child, he (Tomas Corpus) would have no legal
personality to intervene in the distribution of Yangco's estate
(p. 8, appellant's brief).
The rule in article 943 is now found in article 992 of the Civil
Code which provides that "an illegitimate child has no right to
inherit ab intestato from the legitimate children and relatives
of his father or mother; nor shall such children or relatives
inherit in the same manner from the illegitimate child".
That rule is based on the theory that the illegitimate child is
disgracefully looked upon by the legitimate family while the
legitimate family is, in turn, hated by the illegitimate child.
The law does not recognize the blood tie and seeks to avoid
further grounds of resentment (7 Manresa, Codigo Civil, 7th
Ed., pp. 185-6).
Under articles 944 and 945 of the spanish Civil Code, "if an
acknowledged natural or legitimated child should die without
issue, either legitimate or acknowledged, the father or
mother who acknowledged such child shall succeed to its
entire estate; and if both acknowledged it and are alive, they
shall inherit from it share and share alike. In default of
natural ascendants, natural and legitimated children shall be
succeeded by their natural brothers and sisters in
accordance with the rules established for legitimate brothers
and sisters." Hence, Teodoro R. Yangco's half brothers on
the Corpus side, who were legitimate, had no right to
succeed to his estate under the rules of intestacy.
Following the rule in article 992, formerly article 943, it was
held that the legitimate relatives of the mother cannot
succeed her illegitimate child. By reason of that same rule,
the natural child cannot represent his natural father in the
succession to the estate of the legitimate grandparent
(Llorente vs. Rodriguez, 10 Phil. 585; Centeno vs. Centeno,
52 Phil. 322; Allarde vs. Abaya, 57 Phil. 909). The natural
daughter cannot succeed to the estate of her deceased
uncle, a legitimate brother of her natural mother (Anuran vs.
Aquino and Ortiz, 38 Phil. 29).

XX. ORDER OF INTESTATE SUCCESSION

A. Descending Direct Line
1.
state of legitimate decedent
a.
llegitimate children
Art. 983. If illegitimate children survive with legitimate
children, the shares of the former shall be in the
proportions prescribed by Article 895. (n)
Art. 988. In the absence of legitimate descendants or
ascendants, the illegitimate children shall succeed to
the entire estate of the deceased. (939a)
Art. 989. If, together with illegitimate children, there
should survive descendants of another illegitimate child
who is dead, the former shall succeed in their own right
and the latter by right of representation. (940a)
Art. 990. The hereditary rights granted by the two
preceding articles to illegitimate children shall be
transmitted upon their death to their descendants, who

77

shall inherit by right of representation from their

deceased grandparent. (941a)
Art. 991. If legitimate ascendants are left, the illegitimate
children shall divide the inheritance with them, taking
one-half of the estate, whatever be the number of the
ascendants or of the illegitimate children. (942-841a)
Art. 992. An illegitimate child has no right to inherit ab
intestato from the legitimate children and relatives of his
father or mother; nor shall such children or relatives
inherit in the same manner from the illegitimate child.
(943a)
Corpus vs. Corpus
Teodoro R. Yangco died in Manila on April 20, 1939 at the
age of seventy-seven years. His will dated August 29, 1934
was probated in the Court of First Instance of Manila in
Special Proceeding No. 54863. The decree of probate was
affirmed in this Court's 1941 decision in Corpus vs. Yangco,
73 Phil. 527. The complete text of the will is quoted in that
decision.
Teodoro R. Yangco was the son of Luis Rafael Yangco and
Ramona Arguelles, the widow of Tomas Corpus. Before her
union with Luis Rafael Yangco, Ramona had begotten five
children with Tomas Corpus, two of whom were the
aforenamed Pablo Corpus and Jose Corpus.
Pursuant to the order of the probate court, a project of
partition dated November 26, 1945 was submitted by the
administrator and the legatees named in the will. That
project of partition was opposed by the estate of Luis R.
Yangco whose counsel contended that an intestacy should
be declared because the will does not contain an institution
of heir. It was also opposed by Atty. Roman A. Cruz, who
represented Juanita Corpus, Pedro Martinez and Juliana de
Castro. Juanita Corpus was already dead when Atty. Cruz
appeared as her counsel.
The probate court in its order of December 26, 1946
approved the project of partition. It held that in certain
clauses of the will the testator intended to conserve his
properties not in the sense of disposing of them after his
death but for the purpose of preventing that "tales bienes
fuesen malgastados o desfilpar rados por los legatarios" and
that if the testator intended a perpetual prohibition against
alienation, that condition would be regarded "como no
puesta o no existente". It concluded that "no hay motivos
legales o morales para que la sucession de Don Teodoro R.
Yangco sea declarada intestada."
On September 20, 1949, the legatees executed an
agreement for the settlement and physical partition of the
Yangco estate. The probate court approved that agreement
and noted that the 1945 project of partition was pro tanto
modified. That did not set at rest the controversy over the
Yangco estate.
The trial court in its decision of July 2, 1956 dismissed the
action on the grounds of res judicata and laches. It held that
the intrinsic validity of Yangco's will was passed upon in its
order dated December 26, 1946 in Special Proceeding No.
54863 approving the project of partition for the testator's
estate.
Appellant Corpus contends in this appeal that the trial court
erred in holding (1) that Teodoro R. Yangco was a natural
child, (2) that his will had been duly legalized, and (3) that
plaintiff's action is barred by res judicata and laches.
In the disposition of this appeal, it is not necessary to resolve
whether Yangco's will had been duly legalized and whether
the action of Tomas Corpus is barred by res judicata and
laches. The appeal may be resolved by determining whether
Juanita Corpus, the mother of appellant Tomas Corpus, was
a legal heir of Yangco. Has Tomas Corpus a cause of action
to recover his mother's supposed intestate share in Yangco's
estate?
To answer that question, it is necessary to ascertain
Yangco's filiation. The trial court found that Yangco "a su
muerte tambien le sbrevivieron Luis y Paz appellidados
Yangco, hermanos naturales reconocidos por su padre
natural Luis R. Yangco". The basis of the trial court's
conclusion that Teodoro R. Yangco was an acknowledged
natural child and not a legitimate child was the statement in
the will of his father, Luis Rafael Yangco, dated June 14,
1907, that Teodoro and his three other children were his
acknowledged natural children.
On the other hand, the children of Ramona Arguelles and
Tomas Corpus are presumed to be legitimate. A marriage is
presumed to have taken place between Ramona and
Tomas. Semper praesumitur pro matrimonio. It is disputably
presumed "That a man and a woman deporting themselves
as husband and wife have entered into a lawful contract of
marriage"; "that a child born in lawful wedlock, there being
no divorce, absolute or from bed and board, is legitimate",
and "that things have happened according to the ordinary

course of nature and the ordinary habits of life" (Sec. 5[z],

[bb] and [cc], Rule 131, Rules of Court).
Since Teodoro R. Yangco was an acknowledged natural
child or was illegitimate and since Juanita Corpus was the
legitimate child of Jose Corpus, himself a legitimate child, we
hold that appellant Tomas Corpus has no cause of action for
the recovery of the supposed hereditary share of his mother,
Juanita Corpus, as a legal heir, in Yangco's estate. Juanita
Corpus was not a legal heir of Yangco because there is no
reciprocal succession between legitimate and illegitimate
relatives. The trial court did not err in dismissing the
complaint of Tomas Corpus.
Appellant Corpus concedes that if Teodoro R. Yangco was a
natural child, he (Tomas Corpus) would have no legal
personality to intervene in the distribution of Yangco's estate
(p. 8, appellant's brief).
The rule in article 943 is now found in article 992 of the Civil
Code which provides that "an illegitimate child has no right to
inherit ab intestato from the legitimate children and relatives
of his father or mother; nor shall such children or relatives
inherit in the same manner from the illegitimate child".
That rule is based on the theory that the illegitimate child is
disgracefully looked upon by the legitimate family while the
legitimate family is, in turn, hated by the illegitimate child.
The law does not recognize the blood tie and seeks to avoid
further grounds of resentment (7 Manresa, Codigo Civil, 7th
Ed., pp. 185-6).
Under articles 944 and 945 of the spanish Civil Code, "if an
acknowledged natural or legitimated child should die without
issue, either legitimate or acknowledged, the father or
mother who acknowledged such child shall succeed to its
entire estate; and if both acknowledged it and are alive, they
shall inherit from it share and share alike. In default of
natural ascendants, natural and legitimated children shall be
succeeded by their natural brothers and sisters in
accordance with the rules established for legitimate brothers
and sisters." Hence, Teodoro R. Yangco's half brothers on
the Corpus side, who were legitimate, had no right to
succeed to his estate under the rules of intestacy.
Following the rule in article 992, formerly article 943, it was
held that the legitimate relatives of the mother cannot
succeed her illegitimate child. By reason of that same rule,
the natural child cannot represent his natural father in the
succession to the estate of the legitimate grandparent
(Llorente vs. Rodriguez, 10 Phil. 585; Centeno vs. Centeno,
52 Phil. 322; Allarde vs. Abaya, 57 Phil. 909). The natural
daughter cannot succeed to the estate of her deceased
uncle, a legitimate brother of her natural mother (Anuran vs.
Aquino and Ortiz, 38 Phil. 29).
Leonardo vs. CA
From the record, it appears that Francisca Reyes who died
intestate on July 12, 1942 was survived by two (2)
daughters, Maria and Silvestra Cailles, and a grandson,
Sotero Leonardo, the son of her daughter, Pascuala Cailles
who predeceased her. Sotero Leonardo died in 1944, while
Silvestra Cailles died in 1949 without any issue.
On October 29, 1964, petitioner Cresenciano Leonardo,
claiming to be the son of the late Sotero Leonardo, filed a
complaint for ownership of properties, sum of money and
accounting in the Court of First Instance of Rizal seeking
judgment (1) to be declared one of the lawful heirs of the
deceased Francisca Reyes, entitled to one-half share in the
estate of said deceased jointly with defendant, private
respondent herein, Maria Cailles, (2) to have the properties
left by said Francisca Reyes, described in the complaint,
partitioned between him and defendant Maria Cailles, and
(3) to have an accounting of all the income derived from said
properties from the time defendants took possession thereof
until said accounting shall have been made, delivering to
him his share therein with legal interest.
Answering the complaint, private respondent Maria Cailles
asserted exclusive ownership over the subject properties
and alleged that petitioner is an illegitimate child who cannot
succeed by right of representation. For his part, the other
defendant, private respondent James Bracewell, claimed
that said properties are now his by virtue of a valid and legal
deed of sale which Maria Cailles had subsequently executed
in his favor. These properties were allegedly mortgaged to
respondent Rural Bank of Paraaque, Inc. sometime in
September 1963.
I
"RESPONDENT COURT ERRED IN HOLDING
THAT THE PROPERTIES IN QUESTION ARE
THE EXCLUSIVE PROPERTIES OF PRIVATE
RESPONDENTS.
II

78

"RESPONDENT COURT ERRED IN HOLDING

THAT PETITIONER HAS NOT ESTABLISHED
HIS FILIATION.
III
"RESPONDENT COURT ERRED IN HOLDING
THAT
PETITIONER,
AS
THE
GREAT
GRANDSON OF FRANCISCA REYES, HAS NO
LEGAL
RIGHT
TO
INHERIT
BY
REPRESENTATION."
To begin with, the Court of Appeals found the subject
properties to be the exclusive properties of the private
respondents.
"After declaring it in her name, Maria Cailles paid
the realty taxes starting from 1918 up to 1948.
Thereafter as she and her son Narciso Bracewell,
left for Nueva Ecija, Francisca Reyes managed
the property and paid the realty tax of the land.
However, for unexplained reasons, she paid and
declared the same in her own name. Because of
this, plaintiff decided to run after this property,
erroneously thinking that as the great grandson of
Francisca Reyes, he had some proprietary right
over the same.
"After declaring it in her name, Maria Cailles likewise paid
the realty tax in 1917 and continued paying the same up to
1948. Thereafter when she and her son, Narciso Bracewell,
established their residence in Nueva Ecija, Francisca Reyes
administered the property and like in the first case, declared
in 1949 the property in her own name. Thinking that the
property is the property of Francisca Reyes, plaintiff filed the
instant complaint, claiming a portion thereof as the same
allegedly represents the share of his father.
"Going to the issue of filiation, plaintiff claims that
he is the son of Sotero Leonardo, the son of one
of the daughters (Pascuala) of Francisca Reyes.
He further alleges that since Pascuala
predeceased Francisca Reyes, and that his father,
Sotero, who subsequently died in 1944, survived
Francisca Reyes, plaintiff can consequently
succeed to the estate of Francisca Reyes by right
of representation.
"Since his supposed right will either rise or fall on
the proper evaluation of this vital evidence, We
have minutely scrutinized the same, looking for
that vital link connecting him to the family tree of
the deceased Francisca Reyes. However, this
piece of evidence does not in any way lend
credence to his tale.
"This is because the name of the child described
in the birth certificate is not that of the plaintiff but
a certain 'Alfredo Leonardo' who was born on
September 13, 1938 to Sotero Leonardo and
Socorro Timbol. Other than his bare allegation,
plaintiff did not submit any durable evidence
showing that the 'Alfredo Leonardo' mentioned in
the birth certificate is no other than he himself.
Thus, even without taking time and space to go
into further details, We may safely conclude that
plaintiff failed to prove his filiation which is a
fundamental requisite in this action where he is
claiming to be an heir in the inheritance in
question." 4
That is likewise a factual finding which may not be disturbed
in this petition for review in the absence of a clear showing
that said finding is not supported by substantial evidence, or
that there was a grave abuse of discretion on the part of the
court making the finding of fact.
Referring to the third assignment of error, even if it is true
that petitioner is the child of Sotero Leonardo, still he cannot,
by right of representation, claim a share of the estate left by
the deceased Francisca Reyes considering that, as found
again by the Court of Appeals, he was born outside wedlock
as shown by the fact that when he was born on September
13, 1938, his alleged putative father and mother were not yet
married, and what is more, his alleged father's first marriage
was still subsisting. At most, petitioner would be an
illegitimate child who has no right to inherit ab intestato from
the legitimate children and relatives of his father, like the
deceased Francisca Reyes. (Article 992, Civil Code of the
Philippines.)
2.
state of Illegitimate decedent
a.
egitimate children and descendant
Art. 903. The legitime of the parents who have an
illegitimate child, when such child leaves neither
legitimate descendants, nor a surviving spouse, nor
illegitimate children, is one-half of the hereditary estate
of such illegitimate child. If only legitimate or illegitimate
children are left, the parents are not entitled to any
legitime whatsoever. If only the widow or widower

survives with parents of the illegitimate child, the

legitime of the parents is one-fourth of the hereditary
estate of the child, and that of the surviving spouse also
one-fourth of the estate. (n)
Art. 987. In default of the father and mother, the
ascendants nearest in degree shall inherit.
Should there be more than one of equal degree
belonging to the same line they shall divide the
inheritance per capita; should they be of different lines
but of equal degree, one-half shall go to the paternal and
the other half to the maternal ascendants. In each line
the division shall be made per capita. (937)
SUBSECTION 3. - Illegitimate Children
Art. 988. In the absence of legitimate descendants or
ascendants, the illegitimate children shall succeed to
the entire estate of the deceased. (939a)
Art. 989. If, together with illegitimate children, there
should survive descendants of another illegitimate child
who is dead, the former shall succeed in their own right
and the latter by right of representation. (940a)
Art. 990. The hereditary rights granted by the two
preceding articles to illegitimate children shall be
transmitted upon their death to their descendants, who
shall inherit by right of representation from their
deceased grandparent. (941a)
Art. 991. If legitimate ascendants are left, the illegitimate
children shall divide the inheritance with them, taking
one-half of the estate, whatever be the number of the
ascendants or of the illegitimate children. (942-841a)
Art. 992. An illegitimate child has no right to inherit ab
intestato from the legitimate children and relatives of his
father or mother; nor shall such children or relatives
inherit in the same manner from the illegitimate child.
(943a)
Art. 993. If an illegitimate child should die without issue,
either legitimate or illegitimate, his father or mother
shall succeed to his entire estate; and if the child's
filiation is duly proved as to both parents, who are both
living, they shall inherit from him share and share alike.
(944)
Art. 994. In default of the father or mother, an illegitimate
child shall be succeeded by his or her surviving spouse
who shall be entitled to the entire estate.
If the widow or widower should survive with brothers
and sisters, nephews and nieces, she or he shall inherit
one-half of the estate, and the latter the other half. (945a)
b.
llegitimate children and descendant
Art. 990. The hereditary rights granted by the two
preceding articles to illegitimate children shall be
transmitted upon their death to their descendants, who
shall inherit by right of representation from their
deceased grandparent. (941a)
Art. 992. An illegitimate child has no right to inherit ab
intestato from the legitimate children and relatives of his
father or mother; nor shall such children or relatives
inherit in the same manner from the illegitimate child.
(943a)
B. Surviving Spouse
Art. 995. In the absence of legitimate descendants and
ascendants, and illegitimate children and their
descendants, whether legitimate or illegitimate, the
surviving spouse shall inherit the entire estate, without
prejudice to the rights of brothers and sisters, nephews
and nieces, should there be any, under article 1001.
(946a)
Art. 996. If a widow or widower and legitimate children
or descendants are left, the surviving spouse has in the
succession the same share as that of each of the
children. (834a)
Art. 997. When the widow or widower survives with
legitimate parents or ascendants, the surviving spouse
shall be entitled to one-half of the estate, and the
legitimate parents or ascendants to the other half. (836a)
Art. 998. If a widow or widower survives with illegitimate
children, such widow or widower shall be entitled to
one-half of the inheritance, and the illegitimate children
or their descendants, whether legitimate or illegitimate,
to the other half. (n)
Art. 999. When the widow or widower survives with
legitimate children or their descendants and illegitimate
children or their descendants, whether legitimate or
illegitimate, such widow or widower
E
shall be entitled to
the same share as that of a legitimate child. (n)
Art. 1000. If legitimate ascendants,
L
the surviving spouse,
and illegitimate children are left, the ascendants shall be
entitled to one-half of the inheritance, and the other half
shall be divided between the surviving spouse and the
illegitimate children so that such widow or widower
shall have one-fourth of the estate, and the illegitimate
children the other fourth. (841a)
Art. 1001. Should brothers and sisters or their children
survive with the widow or widower, the latter shall be

79

entitled to one-half of the inheritance and the brothers

and sisters or their children to the other half. (953, 837a)
Art. 1002. In case of a legal separation, if the surviving
spouse gave cause for the separation, he or she shall
not have any of the rights granted in the preceding
articles. (n)
Santillon vs. Miranda
On November 21, 1953, Santillon died without testament in
Tayug, Pangasinan, his residence, leaving one son Claro,
and his wife, Perfecta Miranda. During his marriage, Pedro
acquired several parcels of land located in that province.
About four years after his death, Claro Santillon filed a
petition for letters of administration. Opposition to said
petition was entered by the widow Perfecta Miranda and the
spouses Benito U. Miranda and Rosario Corrales on the
following grounds: (a) that the properties enumerated in the
petition were all conjugal, except three parcels which
Perfecta Miranda claimed to be her exclusive properties; (b)
that Perfecta Miranda by virtue of two documents had
conveyed 3/4 of her undivided share in most of the
properties enumerated in the petition to said spouses Benito
and Rosario; (c) that administration of the estate was not
necessary, there being a case for partition pending; and (d)
that if administration was necessary at all, the oppositor
Perfecta Miranda and not the petitioner was better qualified
for the post. It appears that subsequently, oppositor Perfecta
Miranda was appointed administratrix of the estate.
On April 25, 1961, Claro filed a "Motion to Declare Share of
Heirs" and to resolve the conflicting claims of the parties with
respect to their respective rights in the estate. Invoking Art.
892 of the New Civil Code, he insisted that after deducting
1/2 from the conjugal properties as the conjugal share of
Perfecta, the remaining 1/2 must be divided as follows: 1/4
for her and 3/4 for him. Oppositor Perfecta, on the other
hand, claimed that besides her conjugal half, she was
entitled under Art. 996 of the New Civil Code, to another 1/2
of the remaining half. In other words, Claro claimed 3/4 of
Pedro's inheritance, while Perfecta claimed 1/2.
From this order, petitioner Claro Santillon has appealed to
this Court. Two questions of law are involved. The first,
raised in Perfecta's Motion to Dismiss Appeal, is whether the
order of the lower court is appealable. And the second,
raised in appellant's lone assignment of error, is: How shall
the estate of a person who dies intestate be divided when
the only survivors are the spouse and one legitimate child?
The Second Issue: Petitioner rests his claim to 3/4 of his
father's estate on Art. 892, of the New Civil Code which
provides that:

estate in equal parts.

1 Senator Tolentino in his
commentaries writes as follows:
"One child Surviving. If there is only one
legitimate child surviving with the spouse, since
they share equally, one-half of the estate goes to
the child and the other half goes to the surviving
spouse. Although the law refers to "children or
descendants," the rule in statutory construction
that the plural can be understood to include the
singular is applicable in his case." (Tolentino, Civil
Code of the Philippines, Vol. III, p. 436.)
The theory of those holding otherwise, seems to be
premised on these propositions: (a) Art. 996 speaks of
"children," therefore it does not apply when there is only one
"child"; consequently Art. 892 (and Art. 888) should be
applied, thru a process of judicial construction and analogy;
(b) Art. 996 is unjust or unfair because whereas in testate
succession, the widow is assigned one-fourth only (Art. 892),
she would get 1/2 in intestate. Children: It is a maxim of
statutory construction that words in plural include the
singular. 2 So Art. 996 could or should be read (and so
applied): "if the widow or widower and a legitimate child are
left, the surviving spouse has the same share as that of the
child." Indeed, if we refuse to apply the article to this case on
the ground that "child" is not included in "children", the
consequences would be tremendous, because "children" will
not include "child"
In fact, those who say, "children" in Art. 996 does not include
"child" seem to be inconsistent when they argue from the
premise that "in testate succession the only legitimate child
gets one-half and the widow, one-fourth." The inconsistency
is clear, because the only legitimate child gets one-half
under Art. 888, which speaks of "children", not "child". So if
"children" in Art. 888 includes "child", the same meaning
should be given to Art. 996.
Unfairness of Art. 996. Such position, more clearly stated
is this: In testate succession, where there is only one child of
the marriage, the child gets one-half, and the widow or
widower one-fourth. But in intestate, if Art. 996 is applied
now, the child gets one-half, and the widow or widower onehalf. Unfair or inequitable, they insist.
On this point, it is not correct to assume that in testate
succession the widow or widower "gets only one-fourth." She
or he may get one-half if the testator so wishes. So, the
law virtually leaves it to each of the spouses to decide (by
testament) whether his or her only child shall get more than
his or her survivor.
C. Ascending Direct line

"If only the legitimate child or descendant of the

deceased survives, the widow or widower shall be
entitled to one-fourth of the hereditary estate. . . .'
As she gets one-fourth, therefore, I get 3/4, says Claro.
Perfecta, on the other hand, cites Art. 996 which provides:
"If a widow or widower and legitimate children or
descendants are left, the surviving spouse has in
the succession the same share as that of each of
the children."
Replying to Perfecta's claim, Claro says the article is unjust
and inequitable to the extent that it grants the widow the
same share as that of the children in intestate succession,
whereas in testate, she is given 1/4 and the only child 1/2.
Oppositor Perfecta Miranda, on the other hand, contends
that Art. 996 should control, regardless of its alleged
inequity, being as it is, a provision on intestate succession
involving a surviving spouse and a legitimate child,
inasmuch as in statutory construction, the plural word
"children" includes the singular, "child".
Art. 892 of the New Civil Code falls under the chapter on
Testamentary Succession; whereas Art. 996 comes under
the chapter on Legal or Intestate Succession. Such being
the case, it is obvious that Claro cannot rely on Art. 892 to
support his claim to 3/4 of his father's estate. Art. 892 merely
fixes the legitime of the surviving spouse and Art. 888
thereof, the legitime of children in testate succession. While
it may indicate the intent of the law with respect to the ideal
shares that a child and a spouse should get when they
concur with each other, it does not fix the amount of shares
that such child and spouse are entitled to when intestacy
occurs. Because if the latter happens, the pertinent provision
on intestate succession shall apply; i. e. Art. 996.
This is, remember, intestate proceedings. In the New Civil
Code's chapter in legal or intestate succession, the only
article applicable is Art. 996. Our colleague Mr. Justice J. B.
L. Reyes, professor of Civil Law, is quoted as having
expressed the opinion that under this article, when the
widow survives with only one legitimate child, they share the

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)

PROVISIONS COMMON TO TESTATE AND INTESTATE

SUCCESSION
XXI. Right of Accretion
Art. 1015. Accretion is a right by virtue of which, when
two or more persons are called to the same inheritance,
devise or legacy, the part assigned to the one who
renounces or cannot receive his share, or who died
before the testator, is added or incorporated to that of
his co-heirs, co-devisees, or co-legatees. (n)
Art. 1016. In order that the right of accretion may take
place in a testamentary succession, it shall be
necessary:
(1) That two or more persons be called to the
same inheritance, or to the same portion
thereof, pro indiviso; and
(2) That one of the persons thus called die
before the testator, or renounce the
inheritance, or be incapacitated to receive it.
(928a)
Art. 1017. The words "one-half for each" or "in equal
shares" or any others which, though designating an
aliquot part, do not identify it by such description as
shall make each heir the exclusive owner of determinate
property, shall not exclude the right of accretion.
In case of money or fungible goods, if the share of each
heir is not earmarked, there shall be a right of accretion.
(983a)
Art. 1018. In legal succession the share of the person
who repudiates the inheritance shall always accrue to
his co-heirs. (981)
Art. 1021. Among the compulsory heirs the right of
accretion shall take place only when the free portion is
left to two or more of them, or to any one of them and to
a stranger.
Should the part repudiated be the legitime, the other coheirs shall succeed to it in their own right, and not by
the right of accretion. (985)

Art. 1022. In testamentary succession, when the right of

accretion does not take place, the vacant portion of the
instituted heirs, if no substitute has been designated,
shall pass to the legal heirs of the testator, who shall
receive it with the same charges and obligations. (986)
Art. 1023. Accretion shall also take place among
devisees, legatees and usufructuaries under the same
conditions
established
for
heirs.
(987a)
XXII. Partition and Distribution of Estate
A.

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

of each co-heir should be the same, the oldest shall

have
the
title.
(1066a)
Alsua-Betts vs. CA

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.'

Sps. Doromal vs. CA, Javellana

Lot 3504 of the cadastral survey of Iloilo, situated in the
poblacion of La Paz, one of its districts, with an area of a
little more than 2-1/2 hectares was originally decreed in the
name of the late Justice Antonio Horilleno, in 1916, under
Original Certificate of Title No. 1314, Exh. A; but before he
died, on a date not particularized in the record, he executed
a last will and testament attesting to the fact that it was a coownership between himself and his brothers and sisters,
Exh. C; so that the truth was that the owners or better
stated, the co-owners were; beside Justice Horilleno, 'Luis,
Soledad, Fe, Rosita, Carlos and Esperanza,'
all surnamed Horilleno, and since Esperanza had already
died, she was succeeded by her only daughter and heir
herein plaintiff. Filomena Javellana, in the proportion of 1/7
undivided ownership each; now then, even though their right
had not as yet been annotated in the title, the co-owners led
by Carlos, and as to deceased Justice Antonio Horilleno, his
daughter Mary, sometime since early 1967, had wanted to
sell their shares, or if possible if Filomena Javellana were
agreeable, to sell the entire property, and they hired an
acquaintance Cresencia Harder, to look for buyers, and the
latter came to interest defendants, the father and son,
named Ramon Doromal, Sr. and Jr., and in preparation for
the execution of the sale, since the brothers and sisters
Horilleno were scattered in various parts of the country,
Carlos in Ilocos Sur, Mary in Baguio, Soledad and Fe, in
Mandaluyong, Rizal, and Rosita in Basilan City, they all
executed various powers of attorney in favor of their niece,
Mary H. Jimenez Exh. 1-8, they also caused preparation of
a power of attorney of identical tenor for signature by
plaintiff, Filomena Javellana, Exh. M, and sent it with a letter
of Carlos, Exh. 7 dated 18 January, 1968 unto her thru Mrs.
Harder, and here, Carlos informed her that the price was
P4.00 a square meter, although it now turns out
according to Exh. 3 that as early as 22 October, 1967,
Carlos had received in check as earnest money from
defendant Ramon Doromal, Jr., the sum of P5,000.00 and
the price therein agreed upon was five (P5.00) pesos a
square meter, as indeed in another letter also of Carlos
to Plaintiff in 5 November, 1967, Exh. 6, he had told her that
the Doromals had given the earnest money of P5,000.00 at
P5.00 a square meter, at any rate, plaintiff not being
agreeable, did not sign the power of attorney, and the rest
of the co-owners went ahead with their sale of their 6/7,
Carlos first seeing to it that the deed of sale by their
common attorney in fact, Mary H. Jimenez be signed and
ratified as it was signed and ratified in Candon, Ilocos Sur,
on 15 January, 1968, Exh. 2, then brought to Iloilo by Carlos
in the same month, and because the Register of Deeds of
Iloilo refused to register right away, since the original
registered owner, Justice Antonio Horilleno was already
dead, Carlos had to ask as he did, hire Atty. Teotimo
Arandela to file a petition within the cadastral case, on 26
February, 1968, for the purpose, Exh. C, after which Carlos
returned to Luzon, and after compliance with the requisites
of publication, hearing and notice, the petition was
approved, and we now see that on 29 April, 1968, Carlos
already back in Iloilo went to the Register of Deeds and
caused the registration of the order of the cadastral court
approving the issuance of a new title in the name of the coowners, as well as of the deed of sale to the Doromals, as a
result of which on that same date, a new title was issued
TCT No. 23152, in the name of the Horillenos to 6/7 and
plaintiff Filomena Javellana to 1/7, Exh. D, only to be
cancelled on the same day under TCT No. 23153, Exh. 2,
already in the names of the vendees Doromals for 6/7 and
to herein plaintiff, Filomena Javellana, 1/7, and the next day
30 April, 1968, the Doromals paid unto Carlos by check, the
sum of P97,000.00 Exh. 1, of Chartered Bank which was
later substituted by check of Phil. National Bank, because
there was no Chartered Bank Branch in Ilocos Sur, but
besides this amount paid in check, the Doromals according
to their evidence still paid an additional amount in cash of
P18,250.00 since the agreed price was P5.00 a square
meter; and thus was consummated the transaction, but it is
here where complications set in.
plaintiff's lawyer, Atty. Arturo H. Villanueva, bringing with
him her letter of that date and then and there said lawyer
manifested to the Doromals that he had the P30,000.00 with
him in cash, and tendered it to them, for the exercise of the
legal redemption, the Doromals were aghast, and refused,
and the very next day, as has been said, 11 June, 1968,
plaintiff filed this case, and in the trial, thru oral and
documentary proofs, sought to show that as co-owner, she
had the right to redeem at the price stated in the deed of
sale, Exh. 2, namely P30,000.00 of the same; but
defendants in answer, and in their evidence, oral and
documentary sought to show that plaintiff had no more right
to redeem, and that if ever she should have, that it should

Upon these facts, the Court of Appeals reversed the trial

court's decision and held that although respondent
Javellana was informed of her co-owners' proposal to sell
the land in question to petitioners she was, however, "never
notified . . . least of all, in writing", of the actual execution
and registration of the corresponding deed of sale, hence,
said respondent's right to redeem had not yet expired at the
time she made her offer for that purpose thru her letter of
June 10, 1968 delivered to petitioners on even date. The
intermediate court further held that the redemption price to
be paid by respondent should be that stated in the deed of
sale which is P30,000 notwithstanding that the
preponderance of the evidence proves that the actual price
paid by petitioners was P115,250.
We cannot agree with petitioners Petitioners do not question
respondent's right to redeem, she being admittedly a 1/7 coowner of the property in dispute. The thrust of their first
assignment of error is that for purposes of Article 1623 of the
Civil Code which provides that:"ART. 1623.The right of legal
pre-emption or redemption shall not be exercised except
within thirty days from the notice in writing by the prospective
vendor, or by the vendor, as the case may be. The deed of
sale shall not be recorded in the Registry of Property, unless
accompanied by an affidavit of the vendor that he has given
written notice thereof to all possible redemptioners. The right
of redemption of co-owners excludes that of adjoining
owners."
the letters sent by Carlos Horilleno to respondent and dated
January 18, 1968, Exhibit 7, and November 5, 1967, Exhibit
6, constituted the required notice in writing from which the
30-day period fixed in said provision should be computed.
But to start with, there is no showing that said letters were in
fact received by respondent and when they were actually
received. Besides, petitioners do not pinpoint which of these
two letters, their dates being more than two months apart, is
the required notice. In any event, as found by the appellate
court, neither of said letters referred to a consummated
sale.
The fact alone that in the later letter of January 18, 1968 the
price indicated was P4.00 per square meter while in that of
November 5, 1967, what was stated was P5.00 per square
meter negatives the possibility that a "price definite" had
already been agreed upon. While P5,000 might have indeed
been paid to Carlos in October, 1967, there is nothing to
show that the same was in the concept of the earnest money
contemplated in Article 1482 of the Civil Code, invoked by
petitioner, as signifying perfection of the sale. Viewed in the
backdrop of the factual milieu thereof extant in the record,
We are more inclined to believe that the said P5,000 were
paid in the concept of earnest money as the term was
understood under the Old Civil Code, that is, as a guarantee
that the buyer would not back out, considering that it is not
clear that there was already a definite agreement as to the
price then and that petitioners were decided to buy 6/7 only
of the property should respondent Javellana refuse to agree
to part with her 1/7 share.
We are of the considered opinion and so hold that for
purposes of the co-owner's right of redemption granted by
Article 1620 of the Civil Code, the notice in writing which
Article 1623 requires to be made to the other co-owners and
from receipt of which the 30-day period to redeem should be
counted is a notice not only of a perfected sale but of the
actual execution and delivery of the deed of sale. This is
implied from the latter portion of Article 1623 which requires
that before a register of deeds can record a sale by a coowner, there must be presented to him, an affidavit to the
effect that the notice of the sale had been sent in writing to
the other co-owners.
The only other pivotal issue raised by petitioners relates to
the price which respondent offered for the redemption in
question. In this connection, from the decision of the Court of
Appeals, We gather that there is "decisive preponderance of
evidence" establishing "that the price paid by defendants
was not that stated in the document, Exhibit 2, of P30,000
but much more, at least P97,000, according to the check,
Exhibit 1, if not a total of P115,250.00 because another
amount in cash of P18,250 was paid afterwards." It is,
therefore, the contention of petitioners here that considering
said finding of fact of the intermediate court, it erred in
holding nevertheless that "the redemption price should be
that stated in the deed of sale."
Again, petitioners' contention cannot be sustained. As stated
in the decision under review, the trial court found that "the
consideration of P30,000 only was placed in the deed of sale
to minimize the payment of the registration fees, stamps and
sales tax." With this undisputed fact in mind, it is impossible

82

for the Supreme Court to sanction petitioners' pragmatic but

immoral posture. Being patently violative of public policy and
injurious to public interest, the seemingly wide practice of
understating considerations of transactions for the purpose
of evading taxes and fees due to the government must be
condemned and all parties guilty thereof must be made to
suffer the consequences of their ill-advised agreement to
defraud the state. Verily, the trial court fell short of its
devotion and loyalty to the Republic in officially giving its
stamp of approval to the stand of petitioners and even
berating respondent Javellana as wanting to enrich herself
"at the expense of her own blood relatives who are her
aunts, uncles and cousins." On the contrary, said "blood
relatives" should have been sternly told, as We here hold,
that they are in pari-delicto with petitioners in committing tax
evasion and should not receive any consideration from any
court in respect to the money paid for the sale in dispute.
Their situation is similar to that of parties to an illegal
contract. 1
1st According to Art. 1619'Legal redemption is the right to
be subrogated, upon the same terms and conditions
stipulated in the contract, in the place of one who acquires a
thing by purchase or dation in payment, or by any other
transaction whereby ownership is transmitted by onerous
title.' pp. 471-472, New Civil Code, If it be argued that
foregoing solution would mean unjust enrichment for
plaintiff, it need only be remembered that plaintiff's right is
not contractual, but a mere legal one, the exercise of a right
granted by the law, and the law is definite that she can
subrogate herself in place of the buyer,'upon the same
terms and conditions stipulated in the contract,' in the words
of Art. 1619, and here the price. 'stipulated in the contract'
was P30,000.00, in other words, if this be possible
enrichment on the part of Filomena, it was not unjust but
just enrichment because permitted by the law; if it still be
argued that plaintiff would thus be enabled to abuse her
right, the answer simply is that what she is seeking to
enforce is not an abuse but a mere exercise of a right; if it
he stated that just the same, the effect of sustaining plaintiff
would be to promote not justice but injustice, the answer
again simply is that this solution is not unjust because it only
binds the parties to make good their solemn representation
to possible redemptioners on the price of the sale, to what
they had solemnly averred in a public document required by
the law to be the only basis for that exercise of redemption;"
(Pp. 24-27, Record.) WHEREFORE, the decision of the
Court of Appeals is affirmed, with costs against petitioners.
Alonzo vs. CA
The question is sometimes asked, in serious inquiry or in
curious conjecture, whether we are a court of law or a court
of justice. Do we apply the law even if it is unjust or do we
administer justice even against the law? Thus queried, we
do not equivocate. The answer is that we do neither
because we are a court both of law and of justice. We apply
the law with justice for that is our mission and purpose in the
scheme of our Republic. This case is an illustration.
Five brothers and sisters inherited in equal pro indiviso
shares a parcel of land registered in the mane of their
deceased parents under OCT No. 10977 of the Registry of
Deeds of Tarlac. 1
On March 15, 1963, one of them, Celestino Padua,
transferred his undivided share of the herein petitioners for
the sum of P550.00 by way of absolute sale. 2 One year
later, on April 22, 1964, Eustaquia Padua, his sister, sold her
own share to the same vendees, in an instrument
denominated "Con Pacto de Retro Sale," for the sum of
P440.00. 3
By virtue of such agreements, the petitioners occupied, after
the said sales, an area corresponding to two-fifths of the
said lot, representing the portions sold to them. The vendees
subsequently enclosed the same with a fence. In 1975, with
their consent, their son Eduardo Alonzo and his wife built a
semi-concrete house on a part of the enclosed area. 4
On February 25, 1976, Mariano Padua, one of the five coheirs, sought to redeem the area sold to the spouses
Alonzo, but his complaint was dismissed when it appeared
that he was an American citizen. 5 On May 27, 1977,
however, Tecla Padua, another co-heir, filed her own
complaint invoking the same right of redemption claimed by
her brother. 6
The only real question in this case, therefore, is the correct
interpretation and application of the pertinent law as invoked,
interestingly enough, by both the petitioners and the private
respondents. This is Article 1088 of the Civil Code, providing
as follows:
"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."
Thus, according to Justice J.B.L. Reyes, who was the
ponente of the Court, furnishing the co-heirs with a copy of
the deed of sale of the property subject to redemption would
satisfy the requirement for written notice. "So long, therefore,
as the latter (i.e., the redemptioner) is informed in writing of
the sale and the particulars thereof," he declared, "the thirty
days for redemption start running."
As "it is thus apparent that the Philippine legislature in Article
1623 deliberately selected a particular method of giving
notice, and that notice must be deemed exclusive," the Court
held that notice given by the vendees and not the vendor
would not toll the running of the 30-day period.
The petition before us appears to be an illustration of the
Holmes dictum that "hard cases make bad laws" as the
petitioners obviously cannot argue against the fact that there
was really no written notice given by the vendors to their coheirs. Strictly applied and interpreted, Article 1088 can lead
to only one conclusion, to wit, that in view of such deficiency,
the 30-day period for redemption had not begun to run,
much less expired in 1977.
Thus, we interpret and apply the law not independently of
but in consonance with justice. Law and justice are
inseparable, and we must keep them so. To be sure, there
are some laws that, while generally valid, may seem
arbitrary when applied in a particular case because of its
peculiar circumstances. In such a situation, we are not
bound, because only of our nature and functions, to apply
them just the same, in slavish obedience to their language.
What we do instead is find a balance between the word and
the will, that justice may be done even as the law is obeyed.
As judges, we are not automatons. We do not and must not
unfeelingly apply the law as it is worded, yielding like robots
to the literal command without regard to its cause and
consequence. "Courts are apt to err by sticking too closely to
the words of a law," so we are warned, by Justice Holmes
again, "where these words import a policy that goes beyond
them."
13 While we admittedly may not legislate, we
nevertheless have the power to interpret the law in such a
way as to reflect the will of the legislature. While we may not
read into the law a purpose that is not there, we
nevertheless have the right to read out of it the reason for its
enactment. In doing so, we defer not to "the letter that killeth"
but to "the spirit that vivifieth," to give effect to the
lawmaker's will.
In requiring written notice, Article 1088 seeks to ensure that
the redemptioner is properly notified of the sale and to
indicate the date of such notice as the starting time of the
30-day period of redemption. Considering the shortness of
the period, it is really necessary, as a general rule, to
pinpoint the precise date it is supposed to begin, to obviate
any problem of alleged delays, sometimes consisting of only
a day or two.
Was there a valid notice? Granting that the law requires the
notice to be written, would such notice be necessary in this
case? Assuming there was a valid notice although it was not
in writing, would there be any question that the 30-day
period for redemption had expired long before the complaint
was filed in 1977?
In the face of the established facts, we cannot accept the
private respondents' pretense that they were unaware of the
sales made by their brother and sister in 1963 and 1964. By
requiring written proof of such notice, we would be closing
our eyes to the obvious truth in favor of their palpably false
claim of ignorance, thus exalting the letter of the law over its
purpose. The purpose is clear enough: to make sure that the
redemptioners are duly notified. We are satisfied that in this
case the other brothers and sisters were actually informed,
although not in writing, of the sales made in 1963 and 1964,
and that such notice was sufficient.
Now, when did the 30-day period of redemption begin?
While we do not here declare that this period started from
the dates of such sales in 1963 and 1964, we do say that
sometime between those years and 1976, when the first
complaint for redemption was filed, the other co-heirs were
actually informed of the sale and that thereafter the 30-day
period started running and ultimately expired. This could
have happened any time during the interval of thirteen years,
when none of the co-heirs made a move to redeem the
properties sold. By 1977, in other words, when Tecla Padua
filed her complaint, the right of redemption had already been
extinguished because the period for its exercise had already
expired.
"While the general rule is, that to charge a party
with laches in the assertion of an alleged right it is
essential that he should have knowledge of the
facts upon which he bases his claim, yet if the

83

circumstances were such as should have induced

inquiry, and the means of ascertaining the truth
were readily available upon inquiry, but the party
neglects to make it, he will be chargeable with
laches, the same as if he had known the facts."
15
It was the perfectly natural thing for the co-heirs to wonder
why the spouses Alonzo, who were not among them, should
enclose a portion of the inherited lot and build thereon a
house of strong materials. This definitely was not the act of a
temporary possessor or a mere mortgagee. This certainly
looked like an act of ownership. Yet, given this unseemly
situation, none of the co-heirs saw fit to object or at least
inquire, to ascertain the facts, which were readily available. It
took all of thirteen years before one of them chose to claim
the right of redemption, but then it was already too late.
We realize that in arriving at our conclusion today, we are
deviating from the strict letter of the law, which the
respondent court understandably applied pursuant to
existing jurisprudence. The said court acted properly as it
had no competence to reverse the doctrines laid down by
this Court in the above-cited cases. In fact, and this should
be clearly stressed, we ourselves are not abandoning the De
Conejero and Buttle doctrines. What we are doing simply is
adopting an exception to the general rule, in view of the
peculiar circumstances of this case.
The co-heirs in this case were undeniably informed of the
sales although no notice in writing was given them. And
there is no doubt either that the 30-day period began and
ended during the 14 years between the sales in question
and the filing of the complaint for redemption in 1977,
without the co-heirs exercising their right of redemption.
These are the justifications for this exception.
WHEREFORE, the petition is granted. The decision of the
respondent court is REVERSED
Bautista vs. Grino-Aquino
Can the property of the surviving husband be the subject of
an extrajudicial partition of the estate of the deceased wife?
This is the singular issue in this petition.
In Civil Case No. 4033-P, petitioners instituted an action in
the Court of First Instance of Rizal to declare the deed of
extrajudicial partition, deed of absolute sale, Transfer
Certificates of Title Nos. 14182, 14186 and 15665 all of
Registry of Deeds of Pasay City and Tax Declaration No.
5147, null and void.
That both parties admit that the land in question was
registered in the name of petitioner Manuel Bautista under
T.C.T No. 2210, and the latter inherited this land from his
father, Mariano Bautista;
Both petitioners and private respondents admit that on Dec.
22, 1966, a Deed of Extrajudicial Partition was executed.
Private respondents were signatories to the deed, and the
signature of petitioner Manuel Bautista was supposed to
appear in that document, although petitioner Manuel
Bautista denied having signed that Extrajudicial Partition;
Both parties admit that upon registration of the Deed of
Extrajudicial Partition, T.C.T. No. 2210 was cancelled and in
lieu thereof, T.C.T.-T-14182 was issued; The parties admit
that the private respondents, with the exception of Manolito
Bautista, executed a Deed of Absolute Sale in favor of
Manolito Bautista of that property;Upon registration of the
Deed of Sale, T.C.T.-T-14182 was cancelled and in lieu
thereof, T.C.T. No. T-14186 was issued to Manolito Bautista;
n August 7, 1969, Manolito Bautista executed a Deed of
Sale in favor of the other private respondents and upon
registration of said Deed of Sale, T.C.T. Nos. T-15665, T15666, T-15667, T-15668, T-15669, T-15670, T-15671, were
issued to private respondents;
Parties admit that petitioner Manuel Bautista married his
second wife Emiliana Tamayo;
Parties admit that Manuel Bautista and his second wife,
Emiliana Tamayo, had only a child, Evangeline Bautista,
born on April 29, 1949;
That the property in question was the subject matter of
extrajudicial partition of property on December 22, 1966,
among the heirs of the late Juliana Nojadera, the first wife of
Manuel Bautista;
Manuel Bautista denied participation in the Extrajudicial
Partition of Property;
On August 1, 1974, all the parties agreed to submit to the
NBI the questioned signature of Manuel Bautista;
That the NBI concluded that the questioned
document was authentic. (Pp. 37-38, rollo; pp. 2-3
of decision of respondent court).
In a decision of January 14, 1983, the trial court dismissed
the complaint with costs against plaintiffs. On appeal, a
decision was rendered in due course by the Court of

Appeals on August 3, 1987, affirming the decision of the trial

court.
PUBLIC RESPONDENTS AUTHORIZED THE
EXTRAJUDICIAL PARTITION OF FUTURE
INHERITANCE IN CLEAR VIOLATION OF
ARTICLE 1347 OF THE NEW CIVIL CODE;
PUBLIC RESPONDENTS AUTHORIZED THE
PRETERITION OF PETITIONER EVANGELINE
BAUTISTA IN VIOLATION OF THE LAW ON
SUCCESSION." (P. 7, petition for review; p. 8,
rollo)
The petition is impressed with merit.
The findings of facts of both the trial court and the
respondent Appellate Court that the signature of Manuel
Bautista in the questioned Deed of Extrajudicial Partition is
authentic, as examined by the NBI, can no longer be
questioned in this proceeding. Nevertheless, even granting
that the signature of Manuel Bautista in the questioned
Extrajudicial Deed of Partition is genuine, an examination of
the document based on admitted and proven facts renders
the document fatally defective. The extrajudicial partition
was supposed to be a partition without court intervention of
the estate of the late Juliana Nojadera, first wife of Manuel
Bautista, constituting the subject property. In the same
document Manuel Bautista appears to have waived his right
or share in the property in favor of private respondents.
However, the property subject matter of said extrajudicial
partition does not belong to the estate of Juliana Nojadera. It
is the exclusive property of Manuel Bautista who inherited
the same from his father Mariano Bautista, which was
registered in his name under T.C.T. No. 2210.
Under Section 1, Rule 74 of the Rules of Court an
extrajudicial settlement of the Estate applies only to the
estate left by the decedent who died without a will, and with
no creditors, and the heirs are all of age or the minors are
represented by their judicial or legal representatives. If the
property does not belong to the estate of the decedent
certainly it cannot be the subject matter of an extrajudicial
partition.
As the subject property does not belong to the estate of
Juliana Nojadera, the Deed of Extrajudicial Partition, is void
ab initio being contrary to law. To include in an extrajudicial
partition property which does not pertain to the estate of the
deceased would be to deprive the lawful owner thereof of his
property without due process of law. Only property of the
estate of the decedent which is transmitted by succession
can be the lawful subject matter of an extrajudicial partition.
In this case, the said partition obviously prejudices the right
of Manuel Bautista as exclusive owner of the property.
The said partition also effectively resulted in the preterition of
the right of Evangeline Bautista as a compulsory heir of
Manuel Bautista, daughter of the latter by his second
marriage. It is difficult to believe that Manuel Bautista would
wittingly overlook and ignore the right of her daughter
Evangeline to share in the said property. It is not surprising
that he denied signing the said document. Moreover, private
respondents knew Evangeline Bautista who is their halfsister to be a compulsory heir. The court finds that her
preterition was attended with bad faith hence the said
partition must be rescinded.
The Court observes that after the execution of said
extrajudicial partition and issuance of the title in their names,
private respondents except Manolito Bautista in turn
executed a deed of absolute sale of the property in favor of
the latter in whose name the title was also issued. And yet
soon thereafter another deed of sale was executed this time
by Manolito Bautista selling back the same property to
private respondents in whose names the respective titles
were thus subsequently issued. This series of transactions
between and among private respondents is an indication of
a clever scheme to place the property beyond the reach of
those lawfully entitled thereto.
Moreover, such extrajudicial partition cannot constitute a
partition of the property during the lifetime of its owner,
Manuel Bautista. Partition of future inheritance is prohibited
by law.
As said Extrajudicial Partition dated December 22, 1966, of
property belonging exclusively to petitioner Manuel Bautista,
is null and void ab initio it follows that all subsequent
transactions involving the same property between and
among the private respondents are also null and void.
Delos Santos vs. Dela Cruz
From the record of this case, we cull the following salient
facts: On May 21, 1965, Gertrudes de los Santos filed a

84

complaint for specific performance against Maximo de la

Cruz, alleging, among others, that on August 24, 1963, she
and several co-heirs, including the defendant, executed an
extrajudicial partition agreement (a copy of which was
attached to the complaint) over a certain portion of land with
an area of around 20,000 sq. m.; that the parties thereto had
agreed to adjudicate three (3) lots to the defendant, in
addition to his corresponding share, on condition that the
latter would undertake the development and subdivision of
the estate which was the subject matter of the agreement, all
expenses in connection therewith to be defrayed from the
proceeds of the sale of the aforementioned three (3) lots;
that in spite of demands by the plaintiff, by the other coheirs, and by the residents of the subdivision, the defendant
refused to perform his aforesaid obligation although he had
already sold the aforesaid lots. The plaintiff prayed the court
to order the defendant to comply with his obligation under
the extra-judicial partition agreement and to pay the sum of
P1,000.00 as attorney's fees and costs.

insofar as her right to bring the present action is concerned?

They did not confer upon her the right to institute this action.
The express purpose of the extrajudicial partition agreement,
as admitted by the parties in the stipulation of facts, was to
divide the estate among the heirs of Pelagia de la Cruz.
Indeed, the said agreement itself states that plaintiffappellee was participating therein in representation of her
deceased mother.

In his answer, the defendant admitted the due execution of

the extrajudicial partition agreement, but set up the
affirmative defenses that the plaintiff had no cause of action
against him because the said agreement was void with
respect to her, for the reason that the plaintiff was not an
heir of Pelagia de la Cruz, deceased owner of the property,
and was included in the extrajudicial partition agreement by
mistake; and that although he had disposed of the three lots
adjudicated to him, nevertheless the proceeds of the sale
were not sufficient to develop and improve properly the
subdivided estate. The answer contained a counterclaim
wherein the defendant alleged that the plaintiff had likewise
sold her share in the estate for P10,000.00, and that the
extrajudicial partition agreement being void insofar as the
latter was concerned, he was entitled to one-fourth (1/4) of
the proceeds as his share by way of reversion. The
defendant prayed that the complaint be dismissed; that the
extrajudicial partition agreement be declared void with
respect to the plaintiff; and, on his counterclaim, that the
plaintiff be ordered to pay him the sum of P2,500.00.

Partition of property affected between a person entitled to

inherit from the deceased owner thereof and another person
who thought he was an heir, when he was not really and
lawfully such, to the prejudice of the rights of the true heir
designated by law to succeed the deceased, is null and void
(De Torres vs. De Torres, et al., 28 Phil. 49). A fortiori,
plaintiff-appellee could hardly derive from the agreement the
right to have its terms enforced.

In its decision dated November 3, 1966, the court a quo held

that the defendant, being a party to the extrajudicial partition
agreement, was estopped from raising in issue the right of
the plaintiff to inherit from the decedent Pelagia de la Cruz;
hence, he must abide by the terms of the agreement. The
court ordered the defendant "to perform his obligations to
develop Lots 1, 2 and 3 of (LRC) Psd-29561 as described on
page 2 of the Extrajudicial Partition Agreement" (meaning,
apparently, that the defendant should develop the
subdivision because said Lots 1, 2 and 3 were intended to
be sold for this purpose), and to pay the plaintiff the sum of
P2,000.00 as actual damages, the sum of P500.00 as
attorney's fees, and the costs. No disposition was made of
defendant's counterclaim. The defendant filed a "Motion for
New Trial' but the same was denied. Hence, this appeal.
In the stipulation of facts submitted to the court below, the
parties admit that the owner of the estate, subject matter of
the extrajudicial partition agreement, was Pelagia de la Cruz,
who died intestate on October 16, 1962 that defendantappellant is a nephew of the said decedent; that plaintiffappellee is a grandniece of Pelagia de la Cruz, her mother,
Marciana de la Cruz, being a niece of the said Pelagia de la
Cruz; that plaintiff-appellee's mother died on September 22,
1935, thus pre-deceasing Pelagia de la Cruz; and that the
purpose of the extrajudicial partition agreement was to divide
and distribute the estate among the heirs of Pelagia de la
Cruz.
The pivotal question is whether, in the premises, plaintiffappellee is an heir of the decedent. We are convinced that
she is not. Plaintiff-appellee being a mere grandniece of
Pelagia de la Cruz, she could not inherit from the latter by
right of representation.
"ART. 972.
The right of representation
takes place in the direct descending line, but
never in the ascending.
"In the collateral line, it takes place only in favor of
the children of brothers or sisters, whether they be
of the full or half blood."
Much less could plaintiff-appellee inherit in her own right.
"ART. 962.
In every inheritance, the
relative nearest in degree excludes the more
distant ones, saving the right of representation
when it properly takes place . . ."
In the present case, the relatives "nearest in degree" to
Pelagia de la Cruz are her nephews and nieces, one of
whom is defendant-appellant. Necessarily, plaintiff-appellee,
a grandniece, is excluded by law from the inheritance.
But what is the legal effect of plaintiff-appellee's inclusion
and participation in the extrajudicial partition agreement

It is quite apparent that in executing the partition agreement,

the parties thereto were laboring under the erroneous belief
that plaintiff-appellee was one of the legal heirs of Pelagia
de la Cruz. Plaintiff-appellee not being such an heir, the
partition is void with respect to her, pursuant to Article 1105
of the Civil Code, which reads:
"ART. 1105.
A partition which includes a
person believed to be an heir, but who is not, shall
be void only with respect to such person."

The extrajudicial partition agreement being void with respect

to plaintiff-appellee, she may not be heard to assert estoppel
against defendant-appellant. Estoppel cannot be predicated
on a void contract (17 Am. Jur. 605), or on acts which are
prohibited by law or are against public policy
The award of actual damages in favor of plaintiff-appellee
cannot be sustained in view of the conclusion we have
arrived at above. Furthermore, actual or compensatory
damages must be duly proved (Article 2199, Civil Code).
Here, no proof of such damages was presented inasmuch
as the case was decided on a stipulation of facts and no
evidence was adduced before the trial court.
Such being the case, defendant-appellant is apparently
correct in his contention that the lower court erred in not
passing on his counterclaim and, consequently, in not
sentencing appellee to turn over to him his corresponding
share of said portion received by appellee under the void
partition. Remote relatives or unrelated persons who unduly
received and took possession of the property of a deceased
person without any right, by virtue of a null and void partition,
must restore it to the legitimate successor in the inheritance
(De Torres vs. De Torres, et al., supra). Of course, if such
share has already been disposed of by appellee to a bona
fide purchaser, as seems to be indicated in the unproven
allegations of the counterclaim, We cannot render judgment
awarding any specific amount to defendant-appellant as his
proportionate share of the proceeds of such sale for the
reason that, as already stated above, this aspect of the
counterclaim has not been touched upon in the stipulation of
facts nor has it been supported by evidence which appellant
should have presented in the lower court but did not.
B.
ffects of Partition
Art. 1091. A partition legally made confers upon each
heir the exclusive ownership of the property adjudicated
to him. (1068)
Art. 1092. After the partition has been made, the co-heirs
shall be reciprocally bound to warrant the title to, and
the quality of, each property adjudicated. (1069a)
Art. 1093. The reciprocal obligation of warranty referred
to in the preceding article shall be proportionate to the
respective hereditary shares of the co-heirs, but if any
one of them should be insolvent, the other co-heirs shall
be liable for his part in the same proportion, deducting
the part corresponding to the one who should be
indemnified.
Those who pay for the insolvent heir shall have a right
of action against him for reimbursement, should his
financial condition improve. (1071)
Art. 1094. An action to enforce the warranty among heirs
must be brought within ten years from the date the right
of action accrues. (n)
Art. 1095. If a credit should be assigned as collectible,
the co-heirs shall not be liable for the subsequent
insolvency of the debtor of the estate, but only for his
insolvency at the time the partition is made.
The warranty of the solvency of the debtor can only be
enforced during the five years following the partition.
Co-heirs do not warrant bad debts, if so known to, and
accepted by, the distributee. But if such debts are not
assigned to a co-heir, and should be collected, in whole
or in part, the amount collected shall be distributed
proportionately among the heirs. (1072a)
Art. 1096. The obligation of warranty among co-heirs
shall cease in the following cases:

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(1) When the testator himself has made the

partition, unless it appears, or it may be
reasonably presumed, that his intention was
otherwise, but the legitime shall always remain
unimpaired;
(2) When it has been so expressly stipulated in
the agreement of partition, unless there has
been bad faith;
(3) When the eviction is due to a cause
subsequent to the partition, or has been
caused by the fault of the distributee of the
property. (1070a)
Guilas vs. CFI of Pampanga
It appears from the records that Jacinta Limson de Lopez, of
Guagua, Pampanga was married to Alejandro Lopez y
Siongco. They had no children.
On April 28, 1936, Jacinta executed a will instituting her
husband Alejandro as her sole heir and executor (pp. 20-21,
rec.).
In a Resolution dated October 26, 1953 in Sp. Proc. No. 894
entitled "En el Asunto de la Adopcion de la Menor Juanita
Lopez y Limson" (pp. 92-94, 103, rec.), herein petitioner
Juanita Lopez, then single and now married to Federico
Guilas, was declared legally adopted daughter and legal heir
of the spouses Jacinta and Alejandro. After adopting legally
herein petitioner Juanita Lopez, the testatrix Doa Jacinta
did not execute another will or codicil so as to include
Juanita Lopez as one of her heirs.
Nevertheless, in a project of partition dated March 19, 1960
executed by both Alejandro Lopez and Juanita LopezGuilas, the right of Juanita Lopez to inherit from Jacinta was
recognized and Lots Nos. 3368 and 3441 (Jacinta's
paraphernal property), described and embraced in Original
Certificate of Title No. 13092, both situated in Bacolor,
Pampanga
In an order dated April 23, 1960, the lower court approved
the said project of partition and directed that the records of
the case be sent to the archieves, upon payment of the
estate and inheritance taxes (
On April 10, 1964, herein petitioner Juanita Lopez-Guilas
filed a separate ordinary action to set aside and annul the
project of partition, which case was docketed as Civil Case
2539 entitled "Juanita Lopez-Guilas vs. Alejandro Lopez" in
the Court of First Instance of Pampanga, on the ground of
lesion, preterition and fraud, and pray further that Alejandro
Lopez be ordered to submit a statement of accounts of all
the crops and to deliver immediately to Juanita lots nos.
3368 and 3441 of the Bacolor Cadastre, which were
allocated to her under the project of partition (p. 132, rec.).
In an order dated April 27, 1966, the lower court denied
Juanita's motion to set aside the order of October 2, 1964 on
the ground that the parties themselves agreed to suspend
resolution of her petition for the delivery of her shares until
after the civil action for annulment of the project of partition
has been finally settled and decided (Annex "O", p. 72, rec.).

does not prevent the heir from bringing an action to obtain

his share, provided the prescriptive period therefor has not
elapsed (Mari vs. Bonilla, 83 Phil., 137). The better practice,
however, for the heir who has not received his share, is to
demand his share through a proper motion in the same
probate or administration proceedings, or for reopening of
the probate or administrative proceedings if it had already
been closed, and not through an independent action, which
would be tried by another court or Judge which may thus
reverse a decision or order of the probate on intestate court
already final and executed and re-shuffle properties long ago
distributed and disposed of (Ramos vs. Ortuzar, 89 Phil.,
730, 741-742; Timbol vs. Cano, supra.; Jingco vs. Daluz, L5107, April 24, 1953, 92 Phil. 1082; Roman Catholic vs
Agustines, L-14710, March 29, 1960, 107 Phil., 455, 460461).
Section 1 of Rule 90 of the Revised Rules of Court of 1964
as worded, which secures for the heirs or legatees the right
to "demand and recover their respective shares from the
executor or administrator, or any other person having the
same in his possession", re-states the aforecited doctrines.
The case of Austria vs. Heirs of Ventenilla (99 Phil. 1068)
does not control the present controversy; because the
motion filed therein for the removal of the administratrix and
the appointment of a new administrator in her place was
rejected by the court on the ground of laches as it was filed
after the lapse of about 38 years from October 5, 1910 when
the court issued an order settling and deciding the issues
raised by the motion (L-10018, September 19, 1956, 99
Phil., 1069-1070). In the case at bar, the motion filed by
petitioner for the delivery of her share was filed on July 20,
1964, which is just more than 3 years from August 28, 1961
when the amended project of partition was approved and
within 5 years from April 23, 1960 when the original project
of partition was approved. Clearly, her right to claim the two
lots allocated to her under the project of partition had not yet
expired. And in the light of Section 1 of Rule 90 of the
Revised Rules of Court of 1964 and the jurisprudence above
cited, the order dated December 15, 1960 of the probate
court closing and terminating the probate case did not legally
terminate the testate proceedings, for her share under the
project of partition has not been delivered to her.
While it is true that the order dated October 2, 1964 by
agreement of the parties suspended resolution of her
petition for the delivery of her shares until after the decision
in the civil action for the annulment of the project of partition
(Civil Case 2539) she filed on April 10, 1964; the said order
lost its validity and efficacy when the herein petitioner filed
on June 11, 1965 an amended complaint in said Civil Case
2539 wherein she recognized the partial legality and validity
of the said project of partition insofar as the allocation in her
favor of lots Nos. 3368 and 3441 in the delivery of which she
has been insisting all along
De los Santos vs. Dela Cruz (see previous chapter)
Agutines vs. CFI

Juanita filed a motion dated May 9, 1966 for the

reconsideration of the order dated April 27, 1966 (Annex "P",
pp. 73-77, rec.), to which Alejandro filed an opposition dated
June 8, 1966 (Annex "Q", pp. 112-113, rec.).
Subsequently, Alejandro filed a motion dated July 25, 1966;
praying that the palay deposited with Fericsons and Ideal
Rice Mill by the ten (10) tenants of the two parcels in
question be delivered to him (Annex "R", pp. 114-116, rec.),
to which Juanita filed an opposition dated July 26, 1966
(Annex "S", pp. 117-121, rec.).
In an order dated September 8, 1966, the lower court denied
the motion for reconsideration of the order dated April 27,
1966, and directed Fericsons Inc. and the Ideal Rice Mills to
deliver to Alejandro or his representative the 229 cavans and
46 kilos and 325 and 1/2 cavans and 23 kilos of palay
respectively deposited with the said rice mills upon the filing
by Alejandro of a bond in the amount of P12,000.00 duly
approved by the court (Annex "T", pp. 122-127 rec.).
Hence, this petition for certiorari and mandamus.
The position of petitioner Juanita Lopez-Guilas should be
sustained and the writs prayed for granted.
The probate court loses jurisdiction of an estate under
administration only after the payment of all the debts and the
remaining estate delivered to the heirs entitled to receive the
same. The finality of the approval of the project of partition
by itself alone does not terminate the probate proceeding
(Timbol vs. Cano, 1 SCRA 1271, 1276, L-15445, April 29,
1961; Siguiong vs. Tecson, 89 Phil., pp. 28-30). As long as
the order of the distribution of the estate has not been
complied with, the probate proceedings cannot be deemed
closed and terminated (Siguiong vs. Tecson, supra.);
because a judicial partition is not final and conclusive and

A nine-hectare land in Marilao, Bulacan, is the subject of a

three-cornered dispute between Severo Valenzuela on one
side and the relatives of his deceased wife Generosa
Agustines on the other, with the Archbishop of Manila as
intervenor.
In August, 1934, Generosa Agustines died leaving a will
which was subsequently submitted for probate in the Court
of First Instance of Bulacan in special proceedings No. 4944.
Having no children, she named her surviving husband
Severo Valenzuela the universal heir, but she specified
some bequests. There was opposition to the approval of the
will; however, after some negotiations, the sister (Josefa)
and the nephews and nieces of the decedent (the other
petitioners in this special civil action) executed on February
8, 1935, an extrajudicial partition with the respondent Severo
Valenzuela, expressing conformity with the probate of the
testament and dividing the properties of the deceased. They
promised specifically to respect the wishes of the testatrix,
Other items of the estate were apportioned among the
signers of the deed of partition, which, submitted for
approval, was confirmed by the probate court on October 31,
1936, in an order directing the administrator to deliver the
respective shares to the heirs or legatees after paying the
corresponding inheritance taxes. No appeal was ever taken
from such order.
Years passed. Severo Valenzuela failed to transmit the lot or
part thereof to the parish church of Polo or to the Roman
Catholic Archbishop of Manila. Wherefore, in May, 1944, the
Agustines connections, petitioners herein, filed a complaint
against Severo Valenzuela (civil case No. 158) seeking the
return to them of that nine-hectare lot in Quiririt, alleging his
breach of trust, plus renunciation on the part of the church of
Polo that had reportedly neglected to demand compliance
with the beneficial legacy.

86

After the liberation and after they had become aware of

Valenzuela's act that tended to frustrate their civil action No.
158, the petitioners herein submitted motions for
reconsideration, the main theme of which was that the said
last order amended the decree of distribution of October 31,
1936, which had become final long ago. All was to no avail.
Hence they started this special civil action to annul the order
of December 2, 1944, on the concrete proposition that the
court had no jurisdiction to issue it, the order of October 31,
1936, having become final and executory eight years before.
They contend, first, that under the will, and in accordance
with the partition approved by the court in 1936, the Polo
church was entitled to nine hectares in the Quiririt farm of
Generosa. They argue next that when that church
repudiated the nine-hectare lot, it again became a part of the
whole Quiririt property which, under the partition, had been
adjudicated to them.
On the other hand, Severo Valenzuela's position is that the
whole nine-hectare realty was awarded to him, subject to his
obligation to donate to the Polo church such portion thereof
as he may designate in his discretion.
The intervenor, the Archbishop of Manila, representing the
Polo church, shares the petitioner's opinion that a ninehectare lot had been granted to said church. He maintains,
however, that no voluntary renunciation of the legacy ever
took place.
It will be recalled that the will of Generosa
Agustines contained a provision directing her
husband to donate a portion of her Quiririt farm
not exceeding nine hectares to the Polo church.
What was the share of the church of Polo under
the will and the extrajudicial partition?
After examining and analyzing the circumstances of this
litigation, we reach the conclusion that, as contended by
petitioners and the intervenor, the extrajudicial partition
definitely allotted a nine-hectare parcel to the Polo church.
Supposing, that under the will Valenzuela's discretion
included the determination of the area to be transferred
and not merely the selection of the site where the ninehectare portion is to be segregated still it seems clear that
in the partition he elected or agreed that a nine-hectare
portion shall be conveyed to the Polo church for masses.
It is markworthy that, in addition to the nine-hectare portion,
the deed mentions another parcel of three hectares
exclusively given to Valenzuela. If the parties had not
contemplated a nine-hectare donation to the Polo church,
but empowered Valenzuela to fix the area subsequently,
they would have assigned to him 12 hectares, with the
provision that he will separate therefrom such portion as he
may desire to convey to the parish of Polo. They did not say
so. Instead they clearly stipulated that nine hectares were
destined for "misas" (to the Church), and that three hectares
would be reserved for him.
It is quite probable that if Generosa's kin had known, in the
course of bargaining, that Valenzuela would not deliver all
the nine hectares to the Polo church but would retain eight
hectares thereof, they would not have ceded to him an
additional lot of three hectares.
Proof positive that he had no choice as to the number of
hectares is the fact that for eight years he never exercised it,
keeping for himself in breach of trust the fruits of all the land.
He might have ideas repugnant to the religious beliefs of his
wife in regard to the celebration of masses for the dead. But
as a man of honor, as the surviving partner, he had no
excuse to set his own notions against those of his departed
spouse, especially on a subject that concerned the
disposition of her own properties. The will of the testatrix is
law 1 . And his action in fixing one hectare, when his wife
bequeathed a portion not exceeding nine hectares is surely
such abuse of discretion (if he had any) that will not easily
commend itself to judicial approbation.
To make ourselves clear, we must state at the risk of
repetition that although under the provisions of the will
Severo Valenzuela might have elected to transfer to the Polo
church a portion less than nine hectares, however, in the
deed of partition he agreed exercising his discretion to
assign nine hectares for masses (to the Polo church). It must
be emphasized that in the distribution of the decedent's
assets, we must face the deed of partition which bears the
court's fiat. The last will becomes secondary in value.
Important to bear this distinction in mind, because both in
Valenzuela's motion and in the court's order approving the
assignment of one hectare, only the will was quoted, and not
the extrajudicial partition. Valenzuela's motion invoking the
will exclusively induced the court into error.
A third reason to hold that the document of partition deeded
nine hectares to the Polo church is the fact that the court
and the parties considered it a final settlement of all the

rights of all concerned, the court approving it in toto and

ordering the administrator to deliver to the beneficiaries their
respective portions or legacies. The court's order even wrote
finish to the expediente. And the parties, including Severo
Valenzuela regarded it as final for eight years, until he found
it necessary, for his own interests, to make another move
indirectly amending the final settlement of October, 1936.
Now then, if that partition avowedly settled the estate and
accomplished its distribution, the implication is unavoidable
that it left nothing to future judicial action or determination.
Consequently it did not contemplate any subsequent fixing
by Valenzuela, and approval by the court, of the portion to
be transmitted to the Church of Polo. The parties deemed it
final because the rights of all beneficiaries were therein
defined with certainty. Therefore, the attempt by the
surviving husband to modify it eight years thereafter was
completely beyond the pale of the law.
C.
ecission and Nullity of Partition
Art. 1097. A partition may be rescinded or annulled for
the same causes as contracts. (1073a)
Art. 1098. A partition, judicial or extra-judicial, may also
be rescinded on account of lesion, when any one of the
co-heirs received things whose value is less, by at least
one-fourth, than the share to which he is entitled,
considering the value of the things at the time they were
adjudicated. (1074a)
Art. 1099. The partition made by the testator cannot be
impugned on the ground of lesion, except when the
legitime of the compulsory heirs is thereby prejudiced,
or when it appears or may reasonably be presumed, that
the intention of the testator was otherwise. (1075)
Art. 1100. The action for rescission on account of lesion
shall prescribe after four years from the time the
partition was made. (1076)
Art. 1101. The heir who is sued shall have the option of
indemnifying the plaintiff for the loss, or consenting to a
new partition.
Indemnity may be made by payment in cash or by the
delivery of a thing of the same kind and quality as that
awarded to the plaintiff.
If a new partition is made, it shall affect neither those
who have not been prejudiced nor those have not
received more than their just share. (1077a)
Art. 1102. An heir who has alienated the whole or a
considerable part of the real property adjudicated to him
cannot maintain an action for rescission on the ground
of lesion, but he shall have a right to be indemnified in
cash. (1078a)
Art. 1103. The omission of one or more objects or
securities of the inheritance shall not cause the
rescission of the partition on the ground of lesion, but
the partition shall be completed by the distribution of
the objects or securities which have been omitted.
(1079a)
Art. 1104. A partition made with preterition of any of the
compulsory heirs shall not be rescinded, unless it be
proved that there was bad faith or fraud on the part of
the other persons interested; but the latter shall be
proportionately obliged to pay to the person omitted the
share which belongs to him. (1080)
Art. 1105. A partition which includes a person believed
to be an heir, but who is not, shall be void only with
respect to such person. (1081a)
Revised Rules of Court
RULE 90
DISTRIBUTION AND PARTITION OF THE ESTATE
SECTION 1. When order for distribution of residue made.
When the debts, funeral charges, and expenses of
administration, the allowance to the widow, and inheritance
tax, if any, chargeable to the estate in accordance with law,
have been paid, the court, on the application of the executor
or administrator, or of a person interested in the estate, and
after hearing upon notice, shall assign the residue of the
estate to the persons entitled to the same, naming them and
the proportions, or parts, to which each is entitled, and such
persons may demand and recover their respective shares
from the executor or administrator, or any other person
having the same in his possession. If there is a controversy
before the court as to who are the lawful heirs of the
deceased person or as to the distributive shares to which
each person is entitled under the law, the controversy shall
be heard and decided as in ordinary cases.
No distribution shall be allowed until the payment of the
obligations above mentioned has been made or provided for,
unless the distributees, or any of them, give a bond, in a
sum to be fixed by the court, conditioned for the payment of
said obligations within such time as the court directs.
SEC. 2. Questions as to advancement to be determined.
Questions as to advancement made, or alleged to have
been made, by the deceased to any heir may be heard and
determined by the court having jurisdiction of the estate
proceedings; and the final order of the court thereon shall be
binding on the person raising the questions and on the heir.

87

SEC. 3. By whom expenses of partition paid.If at the time

of the distribution the executor or administrator has retained
sufficient effects in his hands which may lawfully be applied
for the expenses of partition of the properties distributed,
such expenses of partition may be paid by such executor or
administrator when it appears equitable to the court and not
inconsistent with the intention of the testator; otherwise, they
shall be paid by the parties in proportion to their respective
shares or interest in the premises, and the apportionment
shall be settled and allowed by the court, and, if any person
interested in the partition does not pay his proportion or
share, the court may issue an execution in the name of the
executor or administrator against the party not paying for the
sum assessed.
SEC. 4. Recording the order of partition of estate.Certified
copies of final orders and judgments of the court relating to
the real estate or the partition thereof shall be recorded in
the registry of deeds of the province where the property is
situated.
XXIII. EXECUTORS AND ADMINISTRATORS
Art. 1058. All matters relating to the appointment,
powers and duties of executors and administrators and
concerning the administration of estates of deceased
persons shall be governed by the Rules of Court. (n)
Art. 1059. If the assets of the estate of a decedent which
can be applied to the payment of debts are not sufficient
for that purpose, the provisions of Articles 2239 to 2251
on Preference of Credits shall be observed, provided
that the expenses referred to in Article 2244, No. 8, shall
be those involved in the administration of the
decedent's estate. (n)
Art. 1060. A corporation or association authorized to
conduct the business of a trust company in the
Philippines may be appointed as an executor,
administrator, guardian of an estate, or trustee, in like
manner as an individual; but it shall not be appointed
guardian of the person of a ward. (n)
Relevant provisions from the Rules of Court
RULE 78
LETTERS TESTAMENTARY AND OF ADMINISTRATION,
WHEN AND TO WHOM ISSUED
SECTION 1. Who are incompetent to serve as a executors
or administrators.No person is competent to serve as
executor or administrator who:
(a) Is a minor;
(b) Is not a resident of the Philippines; and
(c) Is in the opinion of the court unfit to execute the
duties of the trust by reason of drunkenness,
improvidence, or want of understanding or integrity, or
by reason of conviction of an offense involving moral
turpitude.
SEC. 2. Executor of executor not to administer estate.The
executor of an executor shall not, as such, administer the
estate of the first testator.
SEC. 3. Married women may serve.A married woman may
serve as executrix or administratrix, and the marriage of a
single woman shall not affect her authority so to serve under
a previous appointment
SEC 4 Letters testamentary issued when will allowed.
When a will has been proved and allowed, the court shall
issue letters testamentary thereon to the person named as
executor therein, if he is competent, accepts the trust, and
gives bond as required by these rules
SEC. 5. Where some coexecutors disqualified others may
act.When all of the executors named in a will can not act
because of incompetency, refusal to accept the trust, or
failure to give bond, on the part of one or more of them,
letters testamentary may issue to such of them as are
competent, accept and give bond, and they may perform the
duties and discharge the trust required by the will.
SEC. 6. When and to whom letters of administration
granted.If no executor is named in the will, or the executor
or executors are incompetent, refuse the trust, or fail to give
bond, or a person dies intestate, administration shall be
granted:
(a) To the surviving husband or wife, as the case may
be, or next of kin, or both, in the discretion of the court,
or to such person as such surviving husband or wife,
or next of kin, requests to have appointed, if
competent and willing to serve;
(b) If such surviving husband or wife, as the case may
be, or next of kin, or the person selected by them, be
incompetent or unwilling, or if the husband or widow,
or next of kin, neglects for thirty (30) days after the
death of the person to apply for administration or to
request that administration be granted to some other
person, it may be granted to one or more of the
principal creditors, if competent and willing to serve;
(c) If there is no such creditor competent and willing to
serve, it may be granted to such other person as the
court may select.
RULE 81
BONDS OF EXECUTORS AND ADMINISTRATORS

SECTION 1. Bond to be given before issuance of letters.

Amount. Conditions.Before an executor or administrator
enters upon the execution of his trust, and letters
testamentary or of administration issue, he shall give a bond,
in such sum as the court directs, conditioned as follows:
(a) To make and return to the court, within three (3)
months, a true and complete inventory of all goods,
chattels, rights, credits, and estate of the deceased
which shall come to his possession or knowledge or to
the possession of any other person for him;
(b) To administer according to these rules, and, if an
executor, according to the will of the testator, all
goods, chattels, rights, credits, and estate which shall
at any time come to his possession or to the
possession of any other person for him, and from the
proceeds to pay and discharge all debts, legacies, and
charges on the same, or such dividends thereon as
shall be decreed by the court;
(c) To render a true and just account of his
administration to the court within one (1) year, and at
any other time when required by the court;
(d) To perform all orders of the court by him to be
performed.
SEC. 2. Bond of executor where directed in will. When
further bond required.If the testator in his will directs that
the executor serve without bond, or with only his Individual
bond, he may be allowed by the court to give bond in such
sum and with such surety as the court approves conditioned
only to pay the debts of the testator; but the court may
require of the executor a further bond in case of a change in
his circumstances, or for other sufficient cause, with the
conditions named in the last preceding section.
SEC. 3. Bonds of joint executors and administrators.When
two or more persons are appointed executors or
administrators the court may take a separate bond from
each, or a joint bond from all.
SEC. 4. Bond of special administrator.A special
administrator before entering upon the duties of his trust
shall give a bond, in such sum as the court directs,
conditioned that he will make and return a true inventory of
the goods, chattels, rights, credits, and estate of the
deceased which come to his possession or knowledge, and
that he will truly account for such as are received by him
when required by the court, and will deliver the same to the
person appointed executor or administrator, or to such other
person as may be authorized to receive them.
RULE 84
GENERAL POWERS AND DUTIES OF EXECUTORS AND
ADMINISTRATORS
SECTION 1. Executor or administrator to have access to
partnership books and property. How right enforced.The
executor or administrator of the estate of a deceased partner
shall at all times have access to, and may examine and take
copies of, books and papers relating to the partnership
business, and may examine and make invoices of the
property belonging to such partnership; and the surviving
partner or partners, on request, shall exhibit to him all such
books, papers, and property in their hands or control. On the
written application of such executor or administrator, the
Court having jurisdiction of the estate may order any such
surviving partner or partners to freely permit the exercise of
the rights, and to exhibit the books, papers, and property, as
in this section provided, and may punish any partner failing
to do so for contempt.
SEC. 2. Executor or administrator to keep buildings in
repair.An executor or administrator shall maintain in
tenantable repair the houses and other structures and
fences belonging to the estate, and deliver the same in such
repair to the heirs or devisees when directed so to do by the
court.
SEC. 3. Executor or administrator to retain whole estate to
pay debts, and to administer estate not willed.An executor
or administrator shall have the right to the possession and
management of the real as well as the personal estate of the
deceased so long as it is necessary for the payment of the
debts and the expenses of administration.
RULE 86
CLAIMS AGAINST ESTATE
SECTION 1. Notice to creditors to be issued by court.
Immediately after granting letters testamentary or of
administration, the court shall issue a notice requiring all
persons having money claims against the decedent to file
them in the office of the clerk of said court.
SEC. 2. Time within which claims shall be filed.In the
notice provided in the preceding section, the court shall state
the time for the filing of claims against the estate, which shall
not be more than twelve (12) nor less than six (6) months
after the date of the first publication of the notice. However,
at any time before an order of distribution is entered, on
application of a creditor who has failed to file his claim within
the time previously limited, the court may, for cause shown
and on such terms as are equitable, allow such claim to be
filed within a time not exceeding one (1) month.
SEC. 3. Publication of notice to creditors.Every executor
or administrator shall, immediately alter the notice to
creditors is issued, cause the same to be published three (3)
weeks successively in a newspaper of general circulation in
the province, and to be posted for the same period in four

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public places in the province, and in two public places in the

municipality where the decedent last resided
SEC. 4. Filing copy of printed notice.Within ten (10) days
after the notice has been published and posted n
accordance with the preceding section, the executor or
administrator shall file or cause to be filed in the court a
printed copy of the notice accompanied with an affidavit
setting forth the dates of the first and last publication thereof
and the name of the newspaper in which the same is
printed.
SEC. 5. Claims which must be filed under the notice. If not
filed, barred; exceptions.All claims for money against the
decedent, arising from contract, express or implied, whether
the same be due, not due, or contingent, all claims for
funeral expenses and expenses for the last sickness of the
decedent, and judgment for money against the decedent,
must be filed within the time limited in the notice; otherwise
they are barred forever, except that they may be set forth as
counterclaims in any action that the executor or
administrator may bring against the claimants. Where an
executor or administrator commences an action, or
prosecutes an action already commenced by the deceased
in his lifetime, the debtor may set forth by answer the claims
he has against the decedent, instead of presenting them
independently to the court as herein provided, and mutual
claims may be set off against each other in such action; and
if final judgment is rendered in favor of the defendant, the
amount so determined shall be considered the true balance
against the estate, as though the claim had been presented
directly before the court in the administration proceedings.
Claims not yet due, or contingent, may be approved at their
present value.
SEC. 6. Solidary obligation of decedent.Where the obligation of the decedent is solidary with another debtor, the claim
shall be filed against the decedent as if he were the only
debtor, without prejudice to the right of the estate to recover
contribution from the other debtor. In a joint obligation of the
decedent, the claim shall be confined to the portion
belonging to him.
SEC. 7. Mortgage debt due from estate.A creditor holding
a claim against the deceased secured by mortgage or other
collateral security, may abandon the security and prosecute
his claim in the manner provided in this rule, and share in
the general distribution of the assets of the estate; or he may
foreclose his mortgage or realize upon his security, by action
in court, making the executor or administrator a party
defendant, and if there is a judgment for a deficiency, after
the sale of the mortgaged premises, or the property pledged,
in the foreclosure or other proceedings to realize upon the
security, he may claim his deficiency judgment in the
manner provided in the preceding section; or he may rely
upon his mortgage or other security alone, and foreclose the
same at any time within the period of the statute of
limitations, and in that event he shall not be admitted as a
creditor, and shall receive no share in the distribution of the
other assets of the estate; but nothing herein contained shall
prohibit the executor or administrator from redeeming the
property mortgaged or pledged, by paying the debt for which
it is held as security, under the direction of the court, if the
court shall adjudge it to be for the best interest of the estate
that such redemption shall be made.
SEC. 8. Claim of executor or administrator against an
estate.If the executor or administrator has a claim against
the estate he represents, he shall give notice thereof, in
writing, to the court, and the court shall appoint a special
administrator, who shall, in the adjustment of such claim,
have the same power and be subject to the same liability as
the general administrator or executor in the settlement of
other claims. The court may order the executor or
administrator to pay to the special administrator necessary
funds to defend such claim.
SEC. 9. How to file a claim. Contents thereof Notice to
executor or administrator.A claim may be filed by
delivering the same with the necessary vouchers to the clerk
of court and by serving a copy thereof on the executor or
administrator. If the claim be founded on a bond, bill, note, or
any other instrument, the original need not be filed, but a
copy thereof with all indorsements shall be attached to the
claim and filed therewith. On demand, however, of the
executor or administrator, or by order of the court or judge,
the original shall be exhibited, unless it be lost or destroyed,
in which case the claimant must accompany his claim with
affidavit or affidavits containing a copy or particular
description of the instrument and stating its loss or
destruction. When the claim is due, it must be supported by
affidavit stating the amount justly due, that no payments
have been made thereon which are not credited, and that
there are no offsets to the same, to the knowledge of the
affiant. If the claim is not due, or is contingent, when filed, it
must also be supported by affidavit stating the particulars
thereof. When the affidavit is made by a person other than
the claimant, he must set forth therein the reason why it is
not made by the claimant. The claim once filed shall be
attached to the record of the case in which the letters
testamentary or of administration were issued, although the
court, in its discretion, and as a matter of convenience, may
order all the claims to be collected in a separate folder.

SEC. 10. Answer of executor or administrator. Offsets.

Within fifteen (15) days after service of a copy of the claim
on the executor or administrator, he shall file his answer
admitting or denying the claim specifically, and setting forth
the substance of the matters which are relied upon to
support the admission or denial. If he has no knowledge
sufficient to enable him to admit or deny specifically, he shall
state such want of knowledge. The executor or administrator
in his answer shall allege in offset any claim which the
decedent before death had against the claimant, and his
failure to do so shall bar the claim forever. A copy of the
answer shall be served by the executor or administrator on
the claimant. The court in its discretion may extend the time
for filing such answer.
SEC. 11. Disposition of admitted claim.Any claim admitted
entirely by the executor or administrator shall immediately be
submitted by the clerk to the court who may approve the
same without hearing; but the court, in its discretion, before
approving the claim, may order that known heirs, legatees,
or devisees be notified and heard. If upon hearing, an heir,
legatee, or devisee opposes the claim, the court may, in its
discretion, allow him fifteen (15) days to file an answer to the
claim in the manner prescribed in the preceding section.
SEC. 12. Trial of contested claim.Upon the filing of an
answer to a claim, or upon the expiration of the time for such
filing, the clerk of court shall set the claim for trial with notice
to both parties. The court may refer the claim to a
commissioner.
SEC. 13. Judgment appealable.The judgment of the court
approving or disapproving a claim, shall be filed with the
record of the administration proceedings with notice to both
parties, and is appealable as in ordinary cases. A judgment
against the executor or administrator shall be that he pay, in
due course of administration, the amount ascertained to be
due, and it shall not create any lien upon the property of the
estate, or give to the judgment creditor any priority of
payment.
SEC. 14. Costs.When the executor or administrator, in his
answer, admits and offers to pay part of a claim, and the
claimant refuses to accept the amount offered in satisfaction
of his claim, if he fails to obtain a more favorable judgment,
he cannot recover costs, but must pay to the executor or
administrator costs from the time of the offer. Where an
action commenced against the deceased for money has
been discontinued and the claim embraced therein
presented as in this rule provided, the prevailing party shall
be allowed the costs of his action up to the time of its
discontinuance.
RULE 87
ACTIONS BY AND AGAINST EXECUTORS AND
ADMINISTRATORS
SECTION 1. Actions which may and which may not be
brought against executor or administrator.No action upon
a claim for the recovery of money or debt or interest thereon
shall be commenced against the executor or administrator;
but actions to recover real or personal property, or an
interest therein, from the estate, or to enforce a lien thereon,
and actions to recover damages for an injury to person or
property, real or personal, may be commenced against him.
SEC. 2. Executor or administrator may bring or defend
actions which survive.For the recovery or protection of the
property or rights of the deceased, an executor or
administrator may bring or defend, in the right of the
deceased, actions for causes which survive.
SEC. 3. Heir may not sue until share assigned.When an
executor or administrator is appointed and assumes the
trust, no action to recover the title or possession of lands or
for damages done to such lands shall be maintained against
him by an heir or devisee until there is an order of the court
assigning such lands to such heir or devisee or until the time
allowed for paying debts has expired.
SEC. 4. Executor or administrator may compound with
debtor.With the approval of the court, an executor or
administrator may compound with the debtor of the
deceased for a debt due, and may give a discharge of such
debt on receiving a just dividend of the estate of the debtor.
SEC. 5. Mortgage due estate may be foreclosed.A
mortgage belonging to the estate of a deceased person, as
mortgagee or assignee of the right of a mortgagee, may be
foreclosed by the executor or administrator.
SEC. 6. Proceedings when property concealed, embezzled,
or fraudulently conveyed.If an executor or administrator,
heir, legatee, creditor, or other individual interested in the
estate of the deceased, complains to the court having
jurisdiction of the estate that a person is suspected of having
concealed, embezzled, or conveyed away any of the money,
goods, or chattels of the deceased, or that such person has
in his possession or has knowledge of any deed,
conveyance, bond, contracts, or other writing which contains
evidence of or tends to disclose the right, title, interest, or
claim of the deceased to real or personal estate, or the last
will and testament of the deceased, the court may cite such
suspected person to appear before it and may examine him
on oath on the matter of such complaint; and if the person so
cited refuses to appear, or to answer on such examination
such interrogatories as are put to him, the court may punish
him for contempt, and may commit him to prison until he
submits to the order of the court. The interrogatories put to

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any such person, and his answers thereto, shall be in writing

and shall be filed in the clerks office.
SEC. 7. Person entrusted with estate compelled to render
account.The court, on complaint of an executor or
administrator, may cite a person entrusted by an executor or
administrator with any part of the estate of the deceased to
appear before it, and may require such person to render a
full account, on oath, of the money, goods, chattels, bonds,
accounts, or other papers belonging to such estate as came
to his possession in trust for such executor or administrator,
and of his proceedings thereon; and if the person so cited
refuses to appear to render such account, the court may
punish him for contempt as having disobeyed a lawful order
of the court.
SEC. 8. Embezzlement before letters issued.If a person,
before the granting of letters testamentary or of
administration on the estate of the deceased, embezzles or
alienates any of the money, goods, chattels, or effect of such
deceased, such person shall be liable to an action in favor of
the executor or administrator of the estate for double the
value of the property sold, embezzled, or alienated, to be
recovered for the benefit of such estate.
SEC. 9. Property fraudulent conveyed by deceased may be
recovered. When executor or administrator must bring
action.When there is a deficiency of assets in the hands of
an executor or administrator for the payment of debts and
expenses of administration, and the deceased in his lifetime
had conveyed real or personal property, or a right or interest
therein, or debt or credit, with intent to defraud his creditors
or to avoid any right debt, or duty; or had so conveyed such
property, right, interest, debt, or creditors, and the subject of
the attempted conveyance would be liable to attachment by
any of them in his lifetime, the executor or administrator may
commence and prosecute to final judgment an action for the
recovery of such property, right, interest, debts, or credit for
the benefit of the creditors; but he shall not be bound to
commence the action unless the creditors making the
application pay such part of the costs and expenses, or give
security therefor to the executor or administrator, as the
court deems equitable.
SEC. 10. When creditor may bring action. Lien for cost.
When there is such a deficiency of assets, and the deceased
in his lifetime had made or attempted such a conveyance, as
is stated in the last preceding section, and the executor and
administrator has not commenced the action therein
provided for, any creditor of the estate may, with the
permission of the court, commence and prosecute to final
judgment, in the name of the executor or administrator, a like
action for the recovery of the subject of the conveyance or
attempted conveyance for the benefit of the creditors. But
the action shall not be commenced until the creditor has filed
in a court a bond executed to the executor or administrator,
in an amount approved by the judge, conditioned to
indemnify the executor or administrator against the costs
and expenses incurred by reason of such action. Such
creditor shall have a lien upon any judgment recovered by
him in the action for such costs and other expenses incurred
therein as the court deems equitable.
Where the
conveyance or attempted conveyance has been made by
the deceased in his lifetime in favor of the executor or
administrator, the action which a creditor may bring shall be
in the name of all the creditors, and permission of the court
and filing of bond as above prescribed, are not necessary.

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