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Amie Roxylen T.

de Luna Succession Mon 6:30-8:30


In the case of Mondoido v. De Roda (G.R. No. L-5561), the court held that future inheritance - says the Spanish Civil Code - may, however, enter into other contracts than those whose purpose is to practice the division between living a flow according to art. 1056. In other words, future properties cannot be sold.

In the instant case, there is no doubt they are written in a way that one cannot be sure if Ricardo was selling his participation in the estate of his late grandfather Edward alone or in those of his grandparents Edward and Antonina, but even if he had promised to sell its participation in the estate of his grandfather and grandmother, the promise of sale in terms of the latter property is null and gun denin value because it refers to selling future inheritance.

In Barretto v. Tuason (59 Phil 84), the court held that the first-born possessor of a moyorazgo, having the enjoyment and possession of the entailed estate subject to the ownership of the descendants of the founder in all their indefinite succession, and being strictly forbidden to sell, alienate or encumber the same in any manner whatsoever is only a usufructuary of the said estate. The essential elements of a fideicomiso exist in a mayorazgo in that it is a fiduciary charge made to the first born, the usufructuary possessor, to preserve the entailed properties in the family and to deliver them at the proper time to the succeeding first-born who shall possess and enjoy them. And while a mayorazgo should not be confused with a fideicomiso, the difference between them are not such as to make them incompatible with one another.

Amie Roxylen T. de Luna Succession Mon 6:30-8:30

In Tordilla v. Tordilla (60 Phil 62), the court held that In the this case, the second portion of contract clearly relates to the anticipated future inheritance and therefore is null and void under the provisions of Article 1271 of the Civil Code. If certain value is stated in a deed of donation, such value cannot be questioned when the properties are brought into collation. However, the Supreme Court declared such contention as incorrect as Article 1045 of the Civil Procedure provides for the assessment of the property at its actual value at the time of the donation. The actual value at the time of the donation is a question of fact which must be established by proof the same as any other fact. The attention of the Court was not called to any case in which article 840 of the Civil Code has been treated as entirely and completely repealed.


Article 805 provides that the will must be attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The gist of the cases cited is what does the phrase in the presence connotes. In the Jabonita v. Gustilo (5 Phil 241), the court held that in the presence does not require actually seeing, but the possibility of seeing without any physical obstruction. In the case at hand, the last will and testament of Macario Jaboneta was not probated because the lower court was of the opinion from the evidence adduced at the hearing that Julio Javellana, one of the witnesses, did not attach his signature thereto in the presence of Isabelo Jena, another of the witnesses, as required by the Code of Civil Procedure. If one of the subscribing witnesses was in the outer room while the signing occurred in the inner room, would it invalidate the execution of the will?

Amie Roxylen T. de Luna Succession Mon 6:30-8:30

No. The true test of vision is not whether the testator actually saw the witness sign, but whether he might have seen him sign, considering his mental and physical condition and position at the time of the subscription.

The eyes of the witnesses need not be actually cast upon the document at the moment of subscription by each of them; however, their position must be such that by merely casting their eyes in the proper direction they could have seen each other sign. In this case, the fact that Isabelo Jena, one of the witnesses was still in the room when he saw Julio Javellana, another witness moving his hand and pen in the act of affixing his signature to the will shows that the latter did in fact there and then sign his name to the will. But in Nera v. Rimando (18 Phil 450), the court held that if there is a curtain separating the testator and some witnesses from the other witnesses - - there would then be a physical obstruction between them, which blocks their view. At the time the will was executed, in a large room connecting with a smaller room by a doorway where a curtain hangs across, one of the witnesses was in the outside room when the other witnesses were attaching their signatures to the instrument. The Court ruled that had the witnesses been proven to be in the outer room when the testator and other witnesses signed the will in the inner room, it would have invalidated the will since the attaching of the signatures under the circumstances was not done 'in the presence' of the witnesses in the outer room. The line of vision of the witness to the testator and other witnesses was blocked by the curtain separating the rooms. The position of the parties must be such that with relation to each other at the moment of the attaching the signatures, they may see each other sign if they chose to. In that instance, the signing was not done in the presence of the witness in the outer room. Thus, the will is invalid. In the case at bar, the subscribing witness was in an outer room at the time the testator and the other witnesses attach their signatures to the instrument in an inner room. The line of vision of the witness to the testator and other witnesses was blocked by the curtain separating the rooms.


Amie Roxylen T. de Luna Succession Mon 6:30-8:30

#3 Article 805 requires that the will must be subscribed or signed by the testator himself or by the testators name written by another person x x x. It is a rule well-established that a testator, even if he knows how to write his name, may sign his will by the use of a mark. As held in the Garcia v. Lacuesta case (51 Phil 480), a testator can sign with a mere cross if it was his signature or if he intends it to be. However, if someone else writes the testators name for him, the mere placing by the testator of a cross after his name, without being stated in the attestation clause renders the will not valid. If it had been proved that the cross was his usual signature, the will could have been valid as it was properly signed. The case involves a will that was written in Ilocano dialect. The will appears to have been signed by Atty. Florentino Javier who wrote the name as requested by the testator followed below by 'A ruego del testador' and the name of Florentino Javier. In effect, it was signed by another although under the express direction of the testator. This fact however was not recited in the attestation clause. Mercado also affixed a cross on the will. Is the will valid? No. The will is void not because of the cross but because of the failure to state the signing of his name by somebody else. on the cross affixed on the will by the testator, the Court held that it is not prepared to liken the mere sign of a cross to a thumbmark for obvious reasonsthe cross does not have the trustworthiness of a thumb mark so it is not considered as a valid signature. In the case of De Gala v. Gonzales (Gr. L-4067), the court held that a testator can sign using his thumbmark. The attestation clause is not artistically drawn and that, standing alone, it does not quite meet the requirements of the statute, but taken in connection with the last clause of the body of the will, it is fairly clear and sufficiently carries out the legislative intent; it leaves no possible doubt as to the authenticity of the document.

Amie Roxylen T. de Luna Succession Mon 6:30-8:30

In this case, testatrix signed using a thumb mark. This is not mentioned in the attestation clause. But, in the last paragraph of the will, she mentioned that she signed it using her thumb mark. Is the will valid? Yes. It appeared in the attestation clause that the signature was affixed in the presence of the witnesses, and the form of the signature is sufficiently described and explained in the last clause of the body of the will. It may be conceded that the attestation clause does not, standing alone, quite meet the requirements of the statute, but taken in connection with the last clause of the body of the will, it is fairly clear and sufficiently carries out the legislative intent.


The crux of facts given by each case boils down to the validity of the will in instance of unauthorized alterations, cancellations or insertions that were made on the holographic will or on a testators signature. In the case of Kalaw vs. Relova (132 SCRA 327), the court ruled that in case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature. Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will litem not been noted under his signature, ... the Will is not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected or interlined. 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. In this case, Gregorio K. Kalaw, private respondent, claiming to be the sole heir of his deceased sister, Natividad K. Kalaw, filed a petition for the probate of her holographic Will. The

Amie Roxylen T. de Luna Succession Mon 6:30-8:30

holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as her sole heir. 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. The issue posed was 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. In the case of Ajero vs. Court Of Appeals (Gr. No. 106720), the failure to strictly observe other formalities will not result in the disallowance of a holographic will that is unquestionably handwritten by the testator. In a petition to admit a holographic will to probate, the only issues to be resolved are: (1) whether the instrument submitted is, indeed, the decedent's last will and testament; (2) whether said will was executed in accordance with the formalities prescribed by law; (3) whether the decedent had the necessary testamentary capacity at the time the will was executed; and, (4) whether the execution of the will and its signing were the voluntary acts of the decedent. Requirements under Art 813 and 814 on the authentication of changes and signing and dating of dispositions refer only to the validity of the dispositions, but not its probate. If the testator fails to sign and date some of the dispositions, the result is that these dispositions cannot be effectuated. Such failure however does not render the whole testament void. Only the requirements of Article 810 of the New Civil Code and not those found in Articles 813 and 814 are essential to the probate of a holographic will. Thus, it is also proper to note that the requirements of authentication of changes and signing and dating of dispositions appear in Articles 813 and 814 separate from that which provides for the necessary conditions for the validity of the holographic will as provided in Article 810. Thus, unless the unauthenticated alterations, cancellations or insertions were made on the date of the holographic will or on testator's signature, their presence does not invalidate the will itself. The lack of authentication will only result in disallowance of such changes. In the case at bar, spouses Ajero, petitioners, instituted for allowance of decedent's holographic will. They alleged that at the time of its execution, she was of sound and disposing mind, not acting under duress, fraud or undue influence. Clemente Sand, private respondent

Amie Roxylen T. de Luna Succession Mon 6:30-8:30

opposed the petition on the grounds that: neither the testament's body nor the signature therein was in decedent's handwriting; it contained alterations and corrections which were not duly signed by decedent; and, the will was procured by petitioners through improper pressure and undue influence. The petition was likewise opposed by Dr. Jose Ajero. He contested the disposition in the will of a house and lot located in Cabadbaran, Agusan Del Norte. He claimed that said property could not be conveyed by decedent in its entirety, as she was not its sole owner. The trial court admitted the decedent's holographic will to probate. Private respondent appealed. However, respondent court held that the holographic will of Anne Sand was not executed in accordance with the formalities prescribed by law. Was the Court of Appeals correct in disallowing the probate of the will based on the provisions of Art. 813 and Art. 814?


In the case of Gan vs. Yap (104 Phil 509), the court held that a lost or a destroyed holographic will cannot be proved by parol evidence or by the bare testimony of the witnesses who have seen or read it. The will is the best evidence of its existence and authenticity. 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. When the will itself is not submitted, the means of opposition and of assessing the evidence are not available. testators handwritinghas disappeared. In the instant case, the petitioner-appellant Gan filed a petition for probate of the holographic will allegedly executed by Felicidad Yap. Opposing the petition, her surviving husband, Ildefonso Yap asserted that the deceased had not left any will, nor executed any And then the only guaranty of authenticitythe

Amie Roxylen T. de Luna Succession Mon 6:30-8:30

testament during her lifetime. After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose, Judge, refused to probate the alleged will. The will itself was not presented. Petitioner tried to establish its contents and due execution by the statements of four witnesses who testified that Felicidad wrote, signed and dated a holographic will and that Felicidad allowed them to read the will. The issue raised was: May a holographic will be probated upon the testimony of witnesses who have allegedly seen it and who declare that it was in the handwriting of the testator? However, in Rodelas v. Aranza (119 SCRA 16), the court ruled that if the lost will has a photostatic copy, Xerox or machine copy, probate may be allowed because a comparison may be made between the handwritten statements and with the available handwriting specimens of the testator. If the holographic will has been lost or destroyed and no other copy is available, the will cannot 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. 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. Petitioner-appellant Marcela Rodelas filed a petition to probate the holographic will of Ricardo Bonilla and the issuance of letters testamentary in her favor. This was opposed by oppositor-appellee Aranza on the ground that the alleged holographic will itself, and not an alleged copy thereof, must be produced, otherwise it would produce no effect. The court dismissed the petition for the probate of the will. It held that once the original copy of the holographic will is lost, a copy thereof cannot stand in lieu of the original. Rodelas then appeal his case to the Court of Appeals. Hence, the appellees moved to forward the case to this Court. The issue of the case was whether a holographic will which was lost or cannot be found can be proved by means of a photostatic copy.

Amie Roxylen T. de Luna Succession Mon 6:30-8:30 ORGAN DONATION ACT OF 1991 (RA 7170) A Report
The law of persons provides an adequate legal regime for the bodies of living persons, and little would be gained by seeking to apply the law of property to them. However, once parts are removed from a living person, there is undoubtedly a case for the parts to be regarded as property."

Article 776 of the Civil Code provides that the inheritance includes all property, rights and obligations of a person which are not extinguished by his death. Properties include real and personal properties. Now, what about a human body? Is it classified as a property? May a person execute a legacy or donation of all or part of his body? It is a rule well-established that there are no property rights in a human body. Any interference with it is considered as an invasion of a personal right. The notion that a living body cannot be the subject of property has been extended to the body after death. The body does not form part of the deceaseds estate and cannot be disposed of by will. 1 This is known as the No Property Rule. The basis for the rule is that a corpse is a

nullius in bonis, i.e., in the legal ownership of nobody. However, the No Property Rule is
not absolute. It admits an exemption. RA 7170 or the Organ Donation Act of 1991 is an act which authorizes the legacy or donation of all or part of a human body after death for certain purposes. Thus, a person may execute a legacy or donation of all or part of his body after death.

Pawlowski, Mark (2009) Property in body parts and products of the human body. Liverpool Law Review, 30 (1). pp. 35-55. ISSN 0144-932X

Amie Roxylen T. de Luna Succession Mon 6:30-8:30 Any individual, at least eighteen (18) years of age and of sound mind, may give by way of legacy, to take effect after his death, all or part of his body for any purpose specified in Section 6 hereof.2 A decedent shall mean a deceased individual, not a living donor. However, it is interesting to note that no law explicitly prohibits the sale of human organs from live donors in the Philippines. A decedent may also refer to a still-born infant or fetus. Jurisprudence teaches us that the human embryo is not considered as a person because this classification was restricted to individuals who had been born alive. Nor could the embryo be properly classified as property. This act also enumerates the following persons who may become legatees or donees of human bodies or parts together with their specified purpose:: (a) Any hospital, physician or surgeon - For medical or dental education, research, advancement of medical or dental science, therapy or transplantation; (b) Any accredited medical or dental school, college or university - For education, research, advancement of medical or dental science, or therapy: (c) Any organ bank storage facility - For medical or dental education, research, therapy, or transplantation; and (d) Any specified individual - For therapy or transplantation needed by him.3 The legacy or donation can only be executed to those enumerated above only when each of their certain conditions is met. Legacy of all or part of the human body under Section 3 of the Act may be made by will. The rights to the succession are transmitted from the moment of the death of the decedent.4 Thus, the legacy becomes effective upon the death of the testator without waiting for probate of the will. If the will is not probated, or if it is declared invalid for testamentary

2 3

Section 3, RA 7170 Section 6, ib. 4 Article 777, Civil Code

Amie Roxylen T. de Luna Succession Mon 6:30-8:30 purposes, the legacy, to the extent that it was executed in good faith, is nevertheless valid and effective. The definition of death under this law is when there is an irreversible cessation of all brain functions and further attempts at resuscitation or continued supportive maintenance would not be successful in restoring such natural functions. Aside from a will, a legacy of all or part of the human body may also be made in any document. It may be a card or any paper designed to be carried on a person. It must be signed by the testator in the presence of two witnesses who must sign the document in his presence. If the testator cannot sign, the document may be signed for him at his discretion and in his presence, in the presence of two witnesses who must, likewise, sign the document in the presence of the testator. The legacy becomes effective still upon death of the testator. It shall be respected by and binding upon his executor or administrator, heirs, assigns, successors-in-interest and all members of the family. The delivery of the document of legacy during the testator's lifetime is not necessary to make the legacy valid. RA 7170 provides that the legacy may be made to a specified legatee or without specifying a legatee. However, the legatee may accept or reject the legacy or donation as the case may be. 5 If the legacy is made to a specified legatee who is not available at the time and place of the testator's death, the attending physician or surgeon, in the absence of any expressed indication that the testator desired otherwise, may accept the legacy as legatee.

Section 13 (a), ib.

Amie Roxylen T. de Luna Succession Mon 6:30-8:30 If the legacy does not specify a legatee, the legacy may be accepted by the attending physician or surgeon as legatee upon or following the testator's death. The physician who becomes a legatee under this subsection shall not participate in the procedures for removing or transplanting a part or parts of the body of the decedent. No one may own the human body of another. A human body is not a property per

se. However, RA 7170 allows the proprietary status to the human body and its parts in only a
few limited circumstances after death. There is no property in a corpse but if a dead body or its parts had undergone a process of skill with the object of preserving it for the purpose of medical or scientific examination or teaching purposes, it thereby acquired a usefulness or value and was, accordingly, capable of becoming property and of being stolen.