Wills Cases

THIRD DIVISION
The case arose when petitioner filed on September 20, 2001 a complaint for unlawful detainer against
the respondents, alleging that she is the lawful and registered owner of the property; and that in 1984,
[G.R. No. 175720. September 11, 2007.]
she allowed respondents Evangeline, Buenaventura and Belen, out of kindness and tolerance, to
personally occupy units A, B and D, respectively. However, without her knowledge and consent,
CRESENCIANA TUBO RODRIGUEZ (now deceased), substituted by
respondents separately leased the units to Montano Magpantay, Mel Navarro and Socorro Escota, who
SUSANA A. LLAGAS, petitioner, vs. EVANGELINE RODRIGUEZ, BELEN
despite repeated demands, failed and refused to vacate the premises and to pay the rentals thereof. 6
RODRIGUEZ and BUENAVENTURA RODRIGUEZ, respondents.

In their Answer, respondents claimed ownership over the subject property by succession. They alleged
that while petitioner is the registered owner of the property, however, she is not the lawful owner thereof
DECISION
because the June 14, 1984 Deed of Absolute Sale was simulated and void. As in Civil Case No. 01-1641
now pending before the RTC of Makati City, Branch 141, which they filed to assail the validity of the said
sale, respondents maintain that petitioner exerted undue influence over their father, who at that time was
YNARES-SANTIAGO, J p:
This petition for review on certiorari assails the Decision 1 of the Court of Appeals in CA-G.R. SP No.
91442 dated June 27, 2006, which set aside the Decision of the Regional Trial Court (RTC) of Makati
City, Branch 134, in Civil Case No. 03-517, and reinstated the Decision of the Metropolitan Trial Court
(MTC) of Makati City, Branch 63, in Civil Case No. 75717, dismissing the complaint for ejectment; as well
as the Resolution denying the motion for reconsideration.
Juanito Rodriguez owned a five-door apartment located at San Jose Street, Guadalupe Nuevo, Makati
City, and covered by TCT No. 144865. 2 On October 27, 1983, Juanito executed a "Huling Habilin at
seriously ill, to agree to the sale of the property for only P20,000.00 after knowing that only two
apartments were given to her in the Huling Habilin at Testamento. Further, she had no cause of action
against them for being a party to the August 23, 1990 Partition Agreement wherein they recognized each
other as co-owners and partitioned the property in accordance with the provision of the last will and
testament. 7
On February 26, 2002, the MTC rendered a judgment in favor of the respondents and held that the deed
of sale was simulated otherwise petitioner would not have entered into the Partition Agreement, which
legally conferred upon each heir exclusive ownership over their respective shares, thus:
Testamento" giving petitioner Cresenciana Tubo Rodriguez, his live-in partner, apartments D and E, and
WHEREFORE, the Complaint is DISMISSED. Plaintiff is ordered to pay attorney's
his children Benjamin Rodriguez (the deceased husband of respondent Evangeline Rodriguez),
fees of P10,000.00 and the costs of suit in favor of defendants.
apartment A, respondent Buenaventura Rodriguez, apartment B, and respondent Belen Rodriguez,

SO ORDERED. 8
apartment C. 3 SHIcDT
On appeal, the RTC reversed the decision of the MTC. It held that petitioner's certificate of title is a
However, on June 14, 1984, Juanito executed a Deed of Absolute Sale over the property in favor of
conclusive evidence of ownership of the land described therein; and that unless and until said title has
petitioner. 4 Thus, TCT No. 144865 was cancelled and a new TCT No. 150431 was issued in the name
been annulled by a court of competent jurisdiction, such title is existing and valid. This is true also with
of the petitioner. 5 aEIcHA
respect to the deed of sale. The present action, which involves only the issue of physical or material
possession, is not the proper action to challenge it. Further, the MTC erred when it relied heavily on
THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR OF LAW AND
the "Huling Habilin at Testamento," which was not probated hence has no effect and no right can be
GRAVE ABUSE OF DISCRETION IN REVERSING AND SETTING ASIDE THE
claimed therein. The Partition Agreement which was allegedly entered into pursuant to the Huling Habilin
DECISION OF THE REGIONAL TRIAL COURT AND REINSTATING THE
at Testamento should not also be considered. Thus:
DECISION OF THE METROPOLITAN TRIAL COURT DISMISSING
WHEREFORE, premises considered, the decision rendered by the Metropolitan
PETITIONER'S COMPLAINT FOR UNLAWFUL DETAINER. aTIEcA
Trial Court, Branch 63, Makati City, is hereby ordered REVERSED AND SET
ASIDE. Consequently, judgment is hereby rendered ordering the defendants and
all persons claiming rights under them to vacate the premises and surrender the
possession thereof to the plaintiff. Defendants are likewise ordered to pay jointly
and severally the plaintiff an amount of P5,000.00 a month per unit beginning 13
August 2001 until they finally vacate the premises and the costs of this
suit. HETDAC
II.
THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR OF LAW AND
GRAVE ABUSE OF DISCRETION IN DECLARING THAT THE PROPERTY, A
PARCEL OF LAND UPON WHICH A FIVE-UNIT APARTMENT STANDS,
BECAME THE SUBJECT OF JUANITO RODRIGUEZ'S HULING HABILIN AT
TESTAMENTO WHEREIN THE PROPERTY WAS DISTRIBUTED TO HIS HEIRS
(HEREIN RESPONDENTS) INCLUDING THE RESPONDENT (PETITIONER
HEREIN). 11
SO ORDERED. 9
Aggrieved, respondents filed a petition for review before the Court of Appeals which reversed and set
Petitioner alleges that as the registered owner of the subject property, she enjoys the right of possession
aside the decision of the RTC and reinstated the decision of the MTC. It held that the MTC correctly
thereof and that question of ownership cannot be raised in an ejectment case unless it is intertwined with
received evidence on ownership since the question of possession could not be resolved without deciding
the issue of possession. While the court may look into the evidence of title or ownership and
the issue of ownership. Further, the Huling Habilin at Testamento transmitted ownership of the specific
possession de jure to determine the nature of possession, it cannot resolve the issue of ownership
apartments not only to the respondents but also to the petitioner; and pursuant thereto, the parties
because the resolution of said issue would effect an adjudication on ownership which is not proper in the
executed the Partition Agreement in accordance with the wishes of the testator, thus:
summary action for unlawful detainer. Petitioner insists that the Court of Appeals erred in ruling that
the Huling Habilin at Testamento transmitted ownership of the specific apartments disregarding the fact
WHEREFORE, this Court resolves to REVERSE and SET ASIDE the Decision of
that the same is not probated yet and that the testator changed or revoked his will by selling the property
the Regional Trial Court. The decision dated February 26, 2002 of the
to petitioner prior to his death.
Metropolitan Trial Court, Branch 63, Makati City in Civil Case No. 75717
dismissing the complaint for ejectment is hereby REINSTATED. cHECAS
Contrarily, respondents pray that the instant petition for review be dismissed since the resolution of the
question of ownership by the MTC and the Court of Appeals was provisional only to resolve the issue of
SO ORDERED. 10
possession. Petitioner can always avail of legal remedies to have the issue of ownership passed upon by
The motion for reconsideration was denied hence, petitioner filed the present petition for review raising
the proper court. Aware of the provisional nature of the resolution on ownership in ejectment cases,
the following errors:
respondents filed Civil Case No. 01-1641 to assail the validity of the deed of sale of the property and the
I.
registration thereof in petitioner's name. DHITSc
The petition has merit.

An action for unlawful detainer exists when a person unlawfully withholds possession of any land or
building against or from a lessor, vendor, vendee or other persons, after the expiration or termination of
the right to hold possession, by virtue of any contract, express or implied. 12 The sole issue to be
resolved is the question as to who is entitled to the physical or material possession of the premises or
possession de facto. 13 Being a summary proceeding intended to provide an expeditious means of
The lower courts considered the following documentary evidence in arriving at their respective
decisions, albeit the RTC decision contradicts that of the MTC and Court of Appeals: 1) Huling Habilin at
Testamento executed by Juanito Rodriguez on October 27, 1983; 2) Deed of Sale of the property
executed by Juanito Rodriguez and the petitioner on June 14, 1984; 3) TCT No. 150431 in the name of
the petitioner; and 4) the August 23, 1990 Partition Agreement executed by both the respondents and the
petitioner. cEAHSC
protecting actual possession or right to possession of property, the question of title is not involved 14 and
Based on the foregoing documentary evidence, we find that there is preponderance of evidence in favor
should be raised by the affected party in an appropriate action in the proper court. 15 HIAcCD
of the petitioner's claim. Respondents failed to prove their right of possession, as the Huling Habilin at
However, when the issue of ownership is raised the court is not ousted of its jurisdiction. Section 16 of
Rule 70 of the Rules of Court provides:
Testamento and the Partition Agreement have no legal effect since the will has not been probated.
Before any will can have force or validity it must be probated. This cannot be dispensed with and is a
matter of public policy. 18 Article 838 of the Civil Code mandates that "[n]o will shall pass either real or
SEC 16. Resolving defense of ownership. When the defendant raises the
defense of ownership in his pleadings and the question of possession cannot be
resolved without deciding the issue of ownership, the issue of ownership shall be
resolved only to determine the issue of possession. TcSAaH
Thus, all that the trial court can do is to make an initial determination of who is the owner of the
property so that it can resolve who is entitled to its possession absent other evidence to resolve
ownership. 16 But this adjudication is only provisional and does not bar or prejudice an action
between the same parties involving title to the property. 17
In the case at bar, petitioner's cause of action for unlawful detainer was based on her alleged ownership
of land covered by TCT No. 150431 and that she merely tolerated respondents' stay thereat. However,
personal property unless it is proved and allowed in accordance with the Rules of Court." As the will was
not probated, the Partition Agreement which was executed pursuant thereto can not be given effect.
Thus, the fact that petitioner was a party to said agreement becomes immaterial in the determination of
the issue of possession. ECcTaH
Moreover, at the time the deed of sale was executed in favor of the petitioner, Juanito Rodriguez
remained the owner thereof since ownership would only pass to his heirs at the time of his death. Thus,
as owner of the property, he had the absolute right to dispose of it during his lifetime. Now, whether or
not the disposition was valid is an issue that can be resolved only in Civil Case No. 01-1641, an action
instituted by the respondents for that purpose. DCcIaE
We are, thus, left with the deed of sale and the certificate of title over the property to consider.
when respondents leased the apartments to other persons without her consent, their possession as well
as those persons claiming right under them became unlawful upon their refusal to vacate the premises
and to pay the rent. On the other hand, respondents assailed petitioner's title by claiming that the deed
of sale upon which it was based was simulated and void. They insisted that they were co-owners thus,
they have the right to possess the said property. To prove their claim, they presented the Huling Habilin
We agree with the RTC that a certificate of title is a conclusive evidence of ownership of the land
described therein; the validity of which shall not be subject to a collateral attack, especially in an
ejectment case which is summary in nature. DSATCI
In Ross Rica Sales Center, Inc. v. Ong, 19 the Court held that:
at Testamento of Juanito Rodriguez and the Partition Agreement. CTcSIA

The long settled rule is that the issue of ownership cannot be subject of a
collateral attack. IcTEAD
In Apostol v. Court of Appeals, this Court had the occasion to clarify this:
. . . Under Section 48 of Presidential Decree No. 1529, a certificate of
title shall not be subject to collateral attack. It cannot be altered,
modified or cancelled, except in a direct proceeding for that purpose in
accordance with law. The issue of the validity of the title of the
respondents can only be assailed in an action expressly instituted for
that purpose. Whether or not the petitioners have the right to claim
ownership over the property is beyond the power of the court a quo to
determine in an action for unlawful detainer. SECcIH
Further, in Co v. Militar, 20 it was held that:
[T]he Torrens System was adopted in this country because it was believed to be
the most effective measure to guarantee the integrity of land titles and to protect
their indefeasibility once the claim of ownership is established and
recognized. IaTSED
It is settled that a Torrens Certificate of title is indefeasible and binding upon the
whole world unless and until it has been nullified by a court of competent
jurisdiction. Under existing statutory and decisional law, the power to pass upon
the validity of such certificate of title at the first instance properly belongs to the
Regional Trial Courts in a direct proceeding for cancellation of title. aIcDCA
As the registered owner, petitioner had a right to the possession of the property,
which is one of the attributes of ownership. . . .
We emphasize, however, that our ruling on the issue of ownership is only provisional to determine who
between the parties has the better right of possession. It is, therefore, not conclusive as to the issue of
ownership, which is the subject matter of Civil Case No. 01-1641. Our ruling that petitioner has a better
right of possession was arrived at on the basis of evidence without prejudice to the eventual outcome of
the annulment case, where the issue as to who has title to the property in question is fully threshed out.
As the law
EN BANC
parents. Her will does not explicitly disinherit them but simply omits their names altogether. Said will
rather than he labelled ineffective disinheritance is clearly one in which the said forced heirs suffer from
[G.R. No. L-23445. June 23, 1966.]
REMEDIOS
NUGUID, petitioner-appellant, vs. FELIX
preterition.
NUGUID
and
PAZ
SALONGA NUGUID, oppositors-appellees.
3. ID.; ID.; PRETERITION DISTINGUISHED FROM DISINHERITANCE. Preterition "consists in the

omission in the testator's will of the forced heirs or anyone of them, either because the are not mentioned
therein, or, though mentioned, they are neither instituted as heirs nor are expressly disinherited." (Neri, et
al. vs. Akutin, at al., 72 Phil., p. 325.) Disinheritance; in turn, "is a testamentary disposition depriving any
Custodio O. Partade for petitioner-appellant.
compulsory heir of heir share in the legitime for a cause authorized by law." (Justice J.B.L. Reyes and
Beltran, Beltran & Beltran for oppositors-appellees.
R.C. Puno, "An Outline of Philippine Civil Law," 1956 ed., Vol. III, p. 8, citing cases.) Disinheritance is
always "voluntary"; preterition upon the other hand, is presumed to be "involuntary." (Sanchez Roman,
SYLLABUS
Estudios de Derecho Civil, 2nd edition, Volume 20, p. 1131.)

4. ID.; ID.; ID.; EFFECTS FLOWING FROM PRETERITION AND DISINHERITANCE. The effects
1. PROBATE OF WILL; COURT'S AREA OF INQUIRY LIMITED TO EXTRINSIC VALIDITY OF WILL;

WHEN COURT MAY RULE ON INTRINSIC VALIDITY; CASE AT BAR. In a proceeding for the probate
of a will, the court's area of inquiry is limited to an examination of, and resolution on, the extrinsic validity
of the will; the due execution thereof; the testatrix's testamentary capacity; and the compliance with the
requisites or solemnities prescribed the by law. In the case at bar, however, a peculiar situation exists.
The parties shunted aside the question of whether or not the will should be allowed probate. They
questioned the intrinsic validity of the will. Normally, this comes only after the court has declared that the
will has been duly authenticated. But if the case were to be remanded for probate of the will, nothing will
flowing from preterition are totally different from those of disinheritance. Preterition under Article 854 of
the Civil Code "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. (III Tolentino, Civil Code of the Philippines, 1961. Edition, p. 172.) Better stated yet, in
disinheritance the nullity is limited to that portion of the estate of which the disinherited heirs have been
illegally deprived.
be gained. In the event of probate or if the court rejects the will, probability exists that the case will come
up once again before this Court on the same issue of the intrinsic validity or nullity of the will. The result
would be waste of time, effort, expense, plus added anxiety. These practical considerations induce this
Court to meet head-on the issue of the nullity of the provisions of the will in question, there being a
justiciable controversy awaiting solution.
6. ID.; ID.; WHEN LEGACIES AND DEVISES MERIT CONSIDERATION. Legacies and devises merit
consideration only when they are so expressly given as such in a will. Nothing in Article 854 of the Civil
Code suggests that the mere institution of a universal heir in a will void because of preterition
would give the heir so instituted a share in the inheritance. As to him, the will is inexistent. There must
he, in addition to such institution, a testamentary disposition granting him bequests or legacies apart and
2. SUCCESSION; PRETERITION; OMISSION OF NAMES OF FORCED HEIRS. The deceased left

no descendants, legitimate or illegitimate. But she left forced heirs in the direct ascending time her
separate from the nullified institution of heir.
7. ID.; ID.; ID.; INSTITUTION OF HEIRS CANNOT BE CONSIDERED LEGACY. Petitioner insists that
On August 29, 1963, before a hearing was had on the petition for probate and objection thereto,
the compulsory heirs ineffectively disinherited are entitled to receive their legitimes, but that the
oppositors moved to dismiss on the ground of absolute preterition.
institution of heir "is not invalidated," although the inheritance of the heir so instituted is reduced to the
On September 6, 1963, petitioner registered her opposition to the motion to dismiss.
extent of said legitimes. This theory, if adopted, will result in a complete abrogation of Articles 814 and
851 of the Civil Code.If every case of institution of heirs may be made to fall into the concept of legacies
and betterments reducing the bequest accordingly, then the provisions of Articles 814 and 851 regarding
total or partial nullity of the institution, would be absolutely meaningless and will never have any
application at all. And the remaining provisions contained in said articles concerning the reduction of
The court's order of November 8, 1963, held that "the will in question is a complete nullity and will
perforce create intestacy of the estate of the deceased Rosario Nuguid" and dismissed the petition
without costs.
A motion to reconsider having been thwarted below, petitioner came to this Court on appeal.
inofficious legacies or betterments would be a surplusage because they would be absorbed by Article
1. Right at the outset, a procedural aspect has engaged our attention. The case is for the probate of a
817 of the same code.
will. The court's area of inquiry is limited to an examination of, and resolution on, the extrinsic validity
of the will. The due execution thereof, the testatrix's testamentary capacity, and the compliance with the
DECISION
requisites or solemnities by law prescribed, are the questions solely to be represented, and to be acted
upon, by the court. Said court at this stage of the proceedings is not called upon to rule on
the intrinsic validity or efficacy of the provisions of the will, the legality of any devise or legacy therein. 1
SANCHEZ, J p:
A peculiar situation is here thrust upon us. The parties shunted aside the question of whether or not the
Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, without descendants,
will should he allowed probate. For them, the meat of the case is the intrinsic validity of the will. Normally,
legitimate or illegitimate. Surviving her were her legitimate parents, Felix Nuguid and Paz Salonga
this comes only after the court has declared that the will been duly authenticated. 2 But petitioner and
Nuguid, and 6 brothers and sisters namely: Alfredo, Federico, Remedios, Conrado, Lourdes and Alberto,
oppositors, in the court below and here on appeal, travelled on the issue of law, to wit: Is the will
all surnamed Nuguid.
intrinsically a nullity?
On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of Rizal a holographic
We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On
will allegedly executed by Rosario Nuguid on November 17, 1951, some 11 years before her demise.
the contrary, this litigation will be protracted. And for aught that appears in the record, in the event of
Petitioner prayed that said will be admitted to probate and that letters of administration with the will
probate or if the court rejects the will, probability exists that the case will come once again before us on
annexed be issued to her.
the same issue of the intrinsic validity or nullity of the will. Result: waste of time, effort, expense, plus
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
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.
deceased, oppositors who are compulsory heirs of the deceased in the direct ascending line were
2. Petitioner's sole assignment of error challenges the correctness of the conclusion below that the will is
illegally preterited and that in consequence the institution is void.
a complete nullity. This exacts from us a study of the disputed will and the applicable statute.
Reproduced hereunder is the will:
heredero ni se le deshereda expresamente, ni se le asigna parte alguna de los

"Nov. 17, 1951.
I, ROSARIO NUGUID, being of sound and disposing mind and memory, having
amassed a certain amount of property, do hereby give, devise, and bequeath all
of the property which I may have when I die to my beloved sister Remedios
bienes, resultando privado de un modo tacito de su derecho a legitima.

Para que exista pretericion, con arreglo al articulo 814, basta que en el
testamento omita el testador a uno cualquiera de aquelloa a quienes por su
muerte corresponda la herencia forzosa.
Nuguid, age 34, residing with me at 38-B Iriga, Q.C. In witness whereof, I have
Se necesita, pues, a) Que la omision se refiera a un heredero forzoso.) b) Que la
signed my name this seventh day of November, nineteen hundred and fifty-one.
omision sea completa; que el heredero forzoso nada reciba en el testamento. 5
(Sgd.) Illegible
It may now appear trite but nonetheless helpful in giving us a clear perspective of the problem before us,
T/ ROSARIO NUGUID"
to have on hand a clear-cut definition of the word annul:
The statute we are called upon to apply is Article 854 of the Civil Code which, in part, provides:
"Art. 854. The preterition or omission of one, some, or all of the compulsory heirs
in the direct line, whether living at the time of the execution of the will or born after
the death of the testator. shall annul the institution of heir; the devises and
legacies shall be valid insofar as they are not inofficious . . ."
"To 'annul' means to abrogate, to make void;. . .In re Morrow's Estate, 54 A. 342,
343, 204 Pa. 484." 6
"The word 'annul' as used in the statute requiring court to annul alimony
provisions of divorce decree upon wife's remarriage means to reduce to nothing;
to annihilate; obliterate; blot out; to make void or of no effect; to nullify; to abolish.
Except for inconsequential variation in terms, the foregoing is a reproduction of Article 814 of the Civil
N.J.S.A. 2:50 38 (now N.J.S.2A:34-25). Madden vs. Madden, 40 A.2d 611,
Code of Spain of 1889, which is similarly herein copied, thus
614, 136 N.J. Eq. 132." 7
"Art. 814. The preterition of one or all of the forced heirs in the direct line, whether
"ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect;
living at the time of the execution of the will or born after the death of the testator,
to nullify; to abolish; to do away with. Ex parte Mitchell, 123 W. Va. 283, S.E. 2d.
shall void the institution of heir; but the legacies and betterments 4 shall be valid,
771, 774." 8
in so far as they are not inofficious. . ."
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
A comprehensive understanding of the term preterition employed in the law becomes a necessity. On
nothing by the testament; tacitly, they were deprived of their legitime; neither were they expressly
this point Manresa comments:
disinherited. This is a clear case of preterition. Such preterition in the words of Manresa "anular
"La pretericion consiste en omitir al heredero en el testamento. O no se le
siempre la institucin de heredero, dando carcter absoluto a este ordenamiento," referring to the
nombra siquiera, o aun nombrandole como padre, hijo, etc., no se leinstituye
mandate of Article 814, now 854 of the Civil Code.9 The one- sentence will here institutes petitioner as
the sole, universal heir nothing more. No specific legacies or bequests are therein provided for. It is in
this posture that we say that the nullity is complete. Perforce, Rosario Nuguid died intestate. Says
sino la suposicion de que el hecho o el acto no se ha realizado debiendo; por lo
Manresa:
tanto, procederse sobre tal base o supuesto, y consiguientemente, en un

"En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir,
en todo o en parte? No se aade limitacion alguna, como en el articulo 851, en el
que se expresa que se anulara la institucion de heredero en cuanto perjudique a
la legitima del desheredado. Debe, pues, entenderse que la anulacion es
completa o total, y que este articulo como especial en el caso que le motiva, rige
con preferencia al 817." 10
testamento donde falte la institucion, es obligado llamar a los herederos forzosos

en todo caso, como habria que llamar a los de otra clase, cuando el testador no
hubiese distribuido todos sus bienes en legados, siendo tanto mas obligada esta
consecuencia legal cuanto que, en materia de testamentos, sabido es, segun
tiene declarado la jurisprudencia, con repeticion, que no basta que seo conocida
la voluntad de quien testa si esta voluntad no aparece en la forma y en las
condiciones que la ley ha exigido para que sea valido y eficaz, por lo que
The same view is expressed by Snches Roman:
constituiria una interpretacion arbitraria, dentro del derecho positivo, reputar
"La consequencia de la anulacion o nulidad de la institucion de heredero por
como legatario a un heredero cuya institucion fuese anulada con pretexto de que
pretericion de uno, varios o todos los forzosos en linea recta, es la apertura de la
esto se acomodaba mejor a la voluntad del testador, pues aun cuando asi fuese,
sucesion intestada, total o parcial. Sera total, cuando el testador que comete la
sera esto razon para modificar la ley, pero que no outoriza a una interpretacion
pretericion, hubiere dispuesto de todos los bienes por titulo universal de herencia
contraria a sus terminos y a los principios que informan la testamentifaccion,
en favor de los herederos instituidos, cuya institucion se anula, porque asi lo
pues no porque parezca mejor una cosa en el terreno del Derecho constituyente,
exige la generalidad del precepto legal del art. 814, al determinar, como efecto de
hay razon para convertir este juicio en regla de interpretacin, desvirtuando y
la pretericion el de que 'anulara la institucion de heredero'. . ." 11
anulando por este procedimiento lo que el legislador quiere establecer." 12
Really, as we analyze the word annul employed in the statute, there is no escaping the conclusion that
3. We should not be led astray by the statement in Article 854 that, annulment notwithstanding, "the
the universal institution of petitioner to the entire inheritance results in totally abrogating the will.
devises and legacies shall be valid insofar as they are not inofficious." Legacies and devises merit
Because, the nullification of such institution of universal heir without any other testamentary
consideration only when they are so expressly given as such in a will. Nothing in Article 854 suggests
disposition in the will amounts to a declaration that nothing at all was written. Carefully worded and in
that the mere institution of a universal heir in a will void because of preterition would give the heir
clear terms, Article 854 offers no leeway for inferential interpretation. Giving it an expansive meaning will
so instituted a share in the inheritance. As to him, the will is inexistent. There must be, in addition to such
tear up by the roots the fabric of the statute. On this point, Snchez Romn cites the "Memoria annual
institution, a testamentary disposition granting him bequests or legacies apart and separate from the
del Tribunal Supremo, correspondiente a 1908," which in our opinion expresses the rule of
nullified institution of heir. Snchez Romn, speaking of the two component parts of Article 814, now
interpretation, viz:
854, states that preterition annuls the institution of the heir "totalmente por la pretericin"; but added (in
reference to legacies and bequests), "pero subsistiendo, . . . todas aquellas otras disposiciones que no
" . . . El art. 814, que preceptua en tales casos de pretericion la nulidad de la

se refieren a la institucin de heredero . . . " 13 As Manresa puts it, annulment throws open to intestate
institucion de heredero no consiente interpretacion alguno favorable a lo persona
succession the entire inheritance including la porcin libre (que) no hubiese dispuesto en virtud de
instituida en el sentido antes expuesto, aun cuando parezca, y en algun caso
legado, mejora o donacin." 14
pudiera ser, mas o menos equitativa, porque una nulidad no significa en Derecho
As aforesaid, there is no other provision in the will before us except the institution of petitioner as
5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to receive their
universal heir. That institution, by itself, is null and void. And, intestate succession ensues.
legitimes, but that the institution of heir "is not invalidated," although the inheritance of the heir so
4. Petitioner's mainstay is that the present is "a case of ineffective disinheritance rather than one of
instituted is reduced to the extent of said legitimes. 24
preterition." 15 From this, petitioner draws the conclusion that Article 854 "does not apply to the case at
bar." This argument fails to appreciate the distinction between preterition and disinheritance.
Preterition "consists in the omission in the testator's will of the forced heirs or anyone of them, either
because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor
are expressly disinherited." 16 Disinheritance, in turn, "is a testamentary disposition depriving any
compulsory heir of his share in the legitime for a cause authorized by law." 17 In Manresa's own words:
"La 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
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
The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It simply omits their
absolutely meaningless and will never have application at all. And the remaining
names altogether. Said will rather than be labeled ineffective disinheritance is clearly one in which the
provisions contained in said articles concerning the reduction of inofficious
said forced heirs suffer from preterition.
legacies or betterments would be a surplusage because they would be absorbed
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
by article 817. Thus, instead of construing, we would be destroying integral

provisions of the Civil Code.
heir." This annulment is in toto, unless in the will there are, in addition, testamentary dispositions in the
The destructive effect of the theory thus advanced is due mainly to a failure to
form of devises or legacies. In ineffective disinheritance under Article 918 of the same Code, such
distinguish institution of heirs from legacies and betterments, and a general from
disinheritance shall also "annul the institution of heirs," but only "insofar as it may prejudice the person
a special provision. With reference to Article 814, which is the only provision
disinherited," which last phrase was omitted in the case of preterition. 21 Better stated yet, in
material to the disposition of this case, it must be observed that the institution of
disinheritance the nullity is limited to that portion of the estate of which the disinherited heirs have been
heirs is therein dealt with a thing separate and distinct from legacies or
illegally deprived. Manresa's expressive language, in commenting on the rights of the preterited heirs in
betterment. And they are separate and distinct not only because they are
the case of preterition on the one hand and legal disinheritance on the other, runs thus:
distinctly and separately treated in said article but because they are in themselves
"Preteridos, adquieren el derecho a todo; deshereda dos, solo les corresponde un tercio o dos
different. Institution of heirs is a bequest by universal title of property that is
tercios, 22 segn el caso." 23
undetermined. Legacy refers to specific property bequeathed
FIRST DIVISION
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
[G.R. No. L-62952. October 9, 1985.]
SOFIA J. NEPOMUCENO, petitioner, vs. THE HONORABLE COURT OF

APPEALS, RUFINA GOMEZ, OSCAR JUGO ANG CARMELITA
portion thereof to herein petitioner. The Will reads in part: LibLex

"Art. III. That I have the following legal heirs, namely: my aforementioned legal
wife, Rufina Gomez, and our son, Oscar, and daughter Carmelita, both surnamed
Jugo, whom I declare and admit to be legally and properly entitled to inherit from
JUGO, respondents.
me; that while I have been estranged from my above-named wife for so many
years, I cannot deny that I was legally married to her or that we have been
DECISION
separated up to the present for reasons and justifications known fully well by
them;
GUTIERREZ, JR., J p:
"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,
This is a petition for certiorari to set aside that portion of the decision of the respondent Court of Appeals
for all the things which she has done for me, now and in the past; that while Sofia
(now Intermediate Appellate Court) dated June 3, 1982, as amended by the resolution dated August 10,
J. Nepomuceno has with my full knowledge and consent, did comport and
1982, declaring as null and void the devise in favor of the petitioner and the resolution dated December
represent myself as her own husband, in truth and in fact, as well as in the eyes
28, 1982 denying petitioner's motion for reconsideration.
of the law, I could not bind her to me in the holy bonds of matrimony because of
Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and Testament duly signed by him
my aforementioned previous marriage;"
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
On August 21, 1974, the petitioner filed a petition for the probate of the last Will and Testament of the
Celestina Alejandro, Myrna C. Cortez, and Leandro Leao, who in turn, affixed their signatures below the
deceased Martin Jugo in the Court of First Instance of Rizal, Branch XXXIV, Caloocan City and asked for
attestation clause and on the left margin of pages 1, 2 and 4 of the Will in the presence of the testator
the issuance to her of letters testamentary.
and of each other and the Notary Public. The Will was acknowledged before the Notary Public Romeo
On May 13, 1975, the legal wife of the testator, Rufina Gomez and her children filed an opposition
Escareal by the testator and his three attesting witnesses.
alleging inter alia that the execution of the Will was procured by undue and improper influence on the
In the said Will, the testator named and appointed herein petitioner Sofia J. Nepomuceno as his sole and
part of the petitioner; that at the time of the execution of the Will, the testator was already very sick and
only executor of his estate. It is clearly stated in the Will that the testator was legally married to a certain
that petitioner having admitted her living in concubinage with the testator, she is wanting in integrity and
Rufina Gomez by whom he had two legitimate children, Oscar and Carmelita, but since 1952, he had
thus letters testamentary should not be issued to her.
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
On January 6, 1976, the lower court denied the probate of the Will on the ground that as the testator
petitioner further contends that even if the provisions of paragraph 1 of Article 739 of the Civil Code of
admitted in his Will to cohabiting with the petitioner from December 1952 until his death on July 16,
the Philippines were applicable, the declaration of its nullity could only be made by the proper court in a
1974, the Will's admission to probate will be an idle exercise because on the face of the Will, the
separate action brought by the legal wife for the specific purpose of obtaining a declaration of the nullity
invalidity of its intrinsic provisions is evident.
of the testamentary provision in the Will in favor of the person with whom the testator was allegedly guilty
The petitioner appealed to the respondent-appellate court.

On June 2, 1982, the respondent court set aside the decision of the Court of First Instance of Rizal
denying the probate of the Will. The respondent court declared the Will to be valid except that the devise
in favor of the petitioner is null and void pursuant to Article 739 in relation with Article 1028 of the Civil
Code of the Philippines. The dispositive portion of the decision reads:
of adultery or concubinage.
The respondents on the other hand contend that the fact that the last Will and Testament itself expressly
admits indubitably on its face the meretricious relationship between the testator and the petitioner and
the fact that petitioner herself initiated the presentation of evidence on her alleged ignorance of the true
civil status of the testator, which led private respondents to present contrary evidence, merits the
application of the doctrine enunciated in Nuguid v. Felix Nuguid, et al. (17 SCRA 449) and Felix Balanay,
"WHEREFORE, the decision a quo is hereby set aside, the will in question
declared valid except the devise in favor of the appellant which is declared null
and void. The properties so devised are instead passed on in intestacy to the
Jr. v. Hon. Antonio Martinez, et al (G.R. No. L-39247, June 27, 1975). Respondents also submit that the
admission of the testator of the illicit relationship between him and the petitioner put in issue the legality
of the devise.
appellant in equal shares, without pronouncement as to costs."

We agree with the respondents.
On June 15, 1982, oppositors Rufina Gomez and her children filed a "Motion for Correction of Clerical
Error" praying that the word "appellant" in the last sentence of the dispositive portion of the decision be
changed to "appellees" so as to read: "The properties so devised are instead passed on intestacy to
the appellees in equal shares, without pronouncement as to costs." The motion was granted by the
respondent court on August 10, 1982.
On August 23, 1982, the petitioner filed a motion for reconsideration. This was denied by the respondent
The respondent court acted within its jurisdiction when after declaring the Will to be validly drawn, it went
on to pass upon the intrinsic validity of the Will and declared the devise in favor of the petitioner null and
void.
The general rule is that in probate proceedings, the court's area of inquiry is limited to an examination
and resolution of the extrinsic validity of the Will. The rule is expressed thus: LLphil
court in a resolution dated December 28, 1982. Cdpr
xxx xxx xxx
The main issue raised by the petitioner is whether or not the respondent court acted in excess of its
". . . It is elementary that a probate decree finally and definitively settles all
jurisdiction when after declaring the last Will and Testament of the deceased Martin Jugo validly drawn, it
questions concerning capacity of the testator and the proper execution and
went on to pass upon the intrinsic validity of the testamentary provision in favor of herein petitioner.
witnessing of his last Will and testament, irrespective of whether its provisions are
The petitioner submits that the validity of the testamentary provision in her favor cannot be passed upon
valid and enforceable or otherwise." (Fernandez v. Dimagiba, 21 SCRA 428).
and decided in the probate proceedings but in some other proceedings because the only purpose of the
"The petition below being for the probate of a Will, the court's area of inquiry is
probate of a Will is to establish conclusively as against everyone that a Will was executed with the
limited to the extrinsic validity thereof. The testator's testamentary capacity and
formalities required by law and that the testator has the mental capacity to execute the same. The
the compliance with the formal requisites or solemnities prescribed by law are the
only questions presented for the resolution of the court. Any inquiry into
Even before establishing the formal validity of the will, the Court in Balanay, Jr. v. Martinez (64 SCRA
the intrinsicvalidity or efficacy of the provisions of the will or the legality of any
452) passed upon the validity of its intrinsic provisions.
devise or legacy is premature.

xxx xxx xxx
Invoking "practical considerations", we stated:

"The basic issue is whether the probate court erred in passing upon the intrinsic
"True or not, the alleged sale is no ground for the dismissal of the petition for
validity of the will, before ruling on its allowance or formal validity, and in declaring
probate. Probate is one thing; the validity of the testamentary provisions is
it void.
another. The first decides the execution of the document and the testamentary
capacity of the testator; the second relates to descent and distribution." (Sumilang
v. Ramagosa 21 SCRA 1369).
xxx xxx xxx
"To establish conclusively as against everyone, and once for all, the facts that a
will was executed with the formalities required by law and that the testator was in
a condition to make a will, is the only purpose of the proceedings under the new
code for the probate of a will. (Sec. 625). The judgment in such proceedings
determines and can determine nothing more. In them the court has no power to
pass upon the validity of any provisions made in the will. It can not decide, for
example, that a certain legacy is void and another one valid. . . ." (Castaeda v.
Alemany, 3 Phil. 426)
The rule, however, is not inflexible and absolute. Given exceptional circumstances, the probate court is
not powerless to do what the situation constrains it to do and pass upon certain provisions of the Will.
"We are of the opinion that in view of certain unusual provisions of the will, which
are of dubious legality, and because of the motion to withdraw the petition for
probate (which the lower court assumed to have been filed with the petitioner's
authorization), the trial court acted correctly in passing upon the will's intrinsic
validity even before its formal validity had been established. The probate of a will
might become an idle ceremony if on its face it appears to be intrinsically void.
Where practical considerations demand that the intrinsic validity of the will be
passed upon, even before it is probated, the court should meet the issue (Nuguid
v. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with Sumilang v. Ramagosa, L23135, December 26, 1967, 21 SCRA 1369; Cacho v. Udan, L-19996, April 30,
1965, 13 SCRA 693).
There appears to be no more dispute at this time over the extrinsic validity of the Will. Both parties are
agreed that the Will of Martin Jugo was executed with all the formalities required by law and that the
testator had the mental capacity to execute his Will. The petitioner states that she completely agrees
with the respondent court when in resolving the question of whether or not the probate court correctly
In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted the petitioner as
denied the probate of Martin Jugo's last Will and Testament, it ruled:
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.
"This being so, the will is declared validly drawn." (Page 4, Decision, Annex A of
Petition.)
On the other hand the respondents pray for the affirmance of the Court of Appeals' decision in toto.
The only issue, therefore, is the jurisdiction of the respondent court to declare the testamentary provision
in favor of the petitioner as null and void.
We sustain the respondent court's jurisdiction. As stated in Nuguid v. Nuguid, (supra):

"We pause to reflect. If the case were to be remanded for probate of the will,
"The prohibitions mentioned in Article 739, concerning donations inter vivos shall
apply to testamentary provisions."
nothing will be gained. On the contrary, this litigation will be protracted. And for
In Article III of the disputed Will, executed on August 15, 1968, or almost six years before the testator's
aught that appears in the record, in the event of probate or if the court rejects the
death on July 16, 1974, Martin Jugo stated that respondent Rufina Gomez was his legal wife from whom
will, probability exists that the case will come up once again before us on the
he had been estranged "for so many years." He also declared that respondents Carmelita Jugo and
same issue of the intrinsic validity or nullity of the will. Result. waste of time, effort,
Oscar Jugo were his legitimate children. In Article IV, he stated that he had been living as man and wife
expense, plus added anxiety. These are the practical considerations that induce
with the petitioner since 1952. Testator Jugo declared that the petitioner was entitled to his love and
us to a belief that we might as well meet head-on the issue of the validity of the
affection. He stated that Nepomuceno represented Jugo as her own husband but "in truth and in fact, as
provisions of the will in question. (Section 2, Rule 1, Rules of Court. Case, et al. v.
well as in the eyes of the law, I could not bind her to me in the holy bonds of matrimony because of my
Jugo, et al., 77 Phil. 517, 522). After all, there exists a justiciable controversy
aforementioned previous marriage."
crying for solution.
There is no question from the records about the fact of a prior existing marriage when Martin Jugo
We see no useful purpose that would be served if we remand the nullified provision to the proper court in
executed his Will. There is also no dispute that the petitioner and Mr. Jugo lived together in an ostensible
a separate action for that purpose simply because, in the probate of a will, the court does not ordinarily
marital relationship for 22 years until his death.
look into the intrinsic validity of its provisions. cdphil

Article 739 of the Civil Code provides:
"The following donations shall be void:
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. prcd
(1) Those made between persons who were guilty of adultery or concubinage at
the time of the donation;
(2) Those made between persons found guilty of the same criminal offense, in
consideration thereof;
(3) Those made to a public officer or his wife, descendants and ascendants, by
reason of his office.
The records do not sustain a finding of innocence or good faith. As argued by the private respondents:
"First. The last will and testament itself expressly admits indubitably on its face
the meretricious relationship between the testator and petitioner, the devisee.
"Second. Petitioner herself initiated the presentation of evidence on her alleged
ignorance of the true civil status of the testator, which led private respondents to
present contrary evidence.
"In the case referred to in No. 1, the action for declaration of nullity may be
brought by the spouse of the donor or donee; and the guilt of the donor and
donee may be proved by preponderance of evidence in the same action.
Article 1028 of the Civil Code provides:
"In short, the parties themselves dueled on the intrinsic validity of the legacy given
in the will to petitioner by the deceased testator at the start of the proceedings.
"Whether or not petitioner knew that testator Martin Jugo, the man he had lived
it maybe argued that the marriage of the deceased
with as man and wife, as already married was an important and specific issue
with private respondent Rufina Gomez was likewise
brought by the parties before the trial court, and passed upon by the Court of
done in secrecy. But it should be remembered that
Appeals.
Rufina Gomez was already in the family way at that
"Instead of limiting herself to proving the extrinsic validity of the will, it was
petitioner who opted to present evidence on her alleged good faith in marrying the
testator. (Testimony of Petitioner, TSN of August 1, 1982, pp. 56-57 and pp. 62-
time and it would seem that the parents of Martin

Jugo were not in favor of the marriage so much so that
an action in court was brought concerning the
marriage. (Testimony of Sebastian Jugo, TSN of August
64).
18, 1975, pp. 29-30).

"Private respondents, naturally, presented evidence that would refute the
"SECOND: Petitioner was a sweetheart of the deceased
testimony of petitioner on the point.
testator when they were still both single. That would be
"Sebastian Jugo, younger brother of the deceased testator, testified at length on
in 1922 as Martin Jugo married respondent
the meretricious relationship of his brother and petitioner. (TSN of August 18,
Rufina Gomez on November 29, 1923 (Exh. 3).
1975).
Petitioner married the testator only on December 5,
"Clearly, the good faith of petitioner was by option of the parties made a decisive
issue right at the inception of the case.
1952. There was a space of about 30 years inbetween. During those 30 years, could it be believed
that she did not even wonder why Martin Jugo did not
"Confronted by the situation, the trial court had to make a ruling on the question.
marry her nor contact her anymore after November,
"When the court a quo held that the testator Martin Jugo and petitioner 'were
1923 facts that should impel her to ask her
deemed guilty of adultery or concubinage', it was a finding that petitioner was not
groom before she married him in secrecy, especially
the innocent woman she pretended to be."
so when she was already about 50 years old at the

time of marriage.
xxx xxx xxx
"THIRD: The fact that petitioner broke off from Martin Jugo
"3' If a review of the evidence must be made nonetheless, then private
in 1923 is by itself conclusive demonstration that
respondents respectfully offer the following analysis:
she knew that the man she had openly lived for 22
"FIRST: The secrecy of the marriage of petitioner with
the deceased testator in a town in Tarlac where
neither she nor the testator ever resided. If there was
nothing to hide from, why the concealment? Of course,
years as man and wife was a married man with

already two children.
"FOURTH: Having admitted that she knew the children
of respondent Rufina Gomez, is it possible that
she would not have asked Martin Jugo whether or

not they were ms illegitimate or legitimate children
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Relova, Dela Fuente and Patajo, JJ., concur.
and by whom? That is un-Filipino.

||| (Nepomuceno v. Court of Appeals, G.R. No. L-62952, [October 9, 1985], 223
"FIFTH: Having often gone to Pasig to the residence of
PHIL 418-429)
the parents of the deceased testator, is it possible
that she would not have known that the mother of
private respondent Oscar Jugo and Carmelita Jugo
was respondent Rufina Gomez, considering that
the houses of the parents of Martin Jugo (where he
had lived for many years) and that of respondent
Rufina Gomez were just a few meters away?
"Such pretentions of petitioner Sofia Nepomuceno are unbelievable. They are, to
say the least, inherently improbable, for they are against the experience in
common life and the ordinary instincts and promptings of human nature that a
woman would not bother at all to ask the man she was going to marry whether or
not he was already married to another, knowing that her groom had children. It
would be a story that would strain human credulity to the limit if petitioner did not
know that Martin Jugo was already a married man in view of the irrefutable fact
that it was precisely his marriage to respondent Rufina Gomez that led petitioner
to break off with the deceased during their younger years."
Moreover, the prohibition in Article 739 of the Civil Code is against the making of a donation between
persons who are living in adultery or concubinage. It is the donation which becomes void. The giver
cannot give even assuming that the recipient may receive. The very wordings of the Will invalidate the
legacy because the testator admitted he was disposing the properties to a person with whom he had
been living in concubinage. prcd
WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the Court of Appeals, now
Intermediate Appellate Court, is AFFIRMED. No costs.
FIRST DIVISION
in favor of private respondent arose when petitioner failed to comply with their obligation under the
codicil, and in ordering the reversion of Lot 1392 to the estate of testatrix. Aggrieved, petitioner
[G.R. No. 113725. June 29, 2000.]
availed of this recourse.

Successional rights are transmitted from the moment of death and compulsory heirs succeed the
JOHNNY S. RABADILLA, 1 petitioner, vs. COURT OF APPEALS AND MARIA

decedent not only to all the property but also to his rights and obligations. Hence, the heirs of Dr.
MARLENA 2 COSCOLLUELA Y BELLEZA VILLACARLOS, respondents.
Rabadilla is also obliged under the codicil to deliver 100 piculs of sugar to private respondent every year.
There is no substitution of heir where no substitute was provided by the testatrix in case the instituted
Romeo S. Perez for petitioner.
heir predecease her or in case of the latter's incapacity or renunciation nor was the instituted heir
Benjamin Santos & Ofelia Calcetas-Santos Law Offices collaborating counsel for respondent Marlene C.
mandated to preserve the property and to transmit it to the second heir.
Villacarlos.
Garcia Ines Villacarlos Garcia and Recina Law Offices for private respondents.
SYNOPSIS
SYLLABUS
1. CIVIL LAW; WILLS AND SUCCESSION; SUCCESSIONAL RIGHTS TRANSMITTED FROM

MOMENT OF DEATH OF DECEDENT. It is a general rule under the law on succession that
Dr. Jorge Rabadilla, in a codicil of Aleja Belleza, was instituted devisee of Lot No. 1392
successional rights are transmitted from the moment of death of the decedent and compulsory heirs are
with an area of 511,855 square meters with the obligation to deliver 100 piculs of sugar to herein
called to succeed by operation of law. The legitimate children and descendants, in relation to their
private respondent every year during the latter's lifetime. The codicil provides that the obligation is
legitimate parents, and the widow or widower, are compulsory heirs. Thus, the petitioner, his mother and
imposed not only on the instituted heir but also to his successors-in-interest and that in case of
sisters, as compulsory heirs of the instituted heir, Dr. Jorge Rabadilla, succeeded the latter by operation
failure to deliver, private respondent shall seize the property and turn it over to the testatrix's "near
of law, without need of further proceedings, and the successional rights were transmitted to them from
descendants." Dr. Rabadilla died and was survived by his wife and children, one of whom is herein
the moment of death of the decedent, Dr. Jorge Rabadilla.
petitioner. Private respondent, alleging failure of the heirs to comply with their obligation, filed a
complaint with the RTC praying for the reconveyance of the subject property to the surviving heirs
of the testatrix. During the pre-trial, a compromise agreement was concluded between the parties
wherein the lessee of the property assumed the delivery of 100 piculs of sugar to private
respondent. However, only partial delivery was made. Thereafter, the trial court dismissed the
complaint for lack of cause of action. The Court of Appeals, on appeal, reversed the decision and
held that the institution of Dr. Rabadilla is in the nature of a modal institution and a cause of action
2. ID.; ID.; INHERITANCE INCLUDES ALL PROPERTY, RIGHTS AND OBLIGATIONS NOT
EXTINGUISHED BY DEATH. Under Article 776 of the New Civil Code, inheritance includes all the
property, rights and obligations of a person, not extinguished by his death. Conformably, whatever rights
Dr. Jorge Rabadilla had by virtue of subject Codicil were transmitted to his forced heirs, at the time of his
death. And since obligations not extinguished by death also form part of the estate of the decedent;
corollarily, the obligations imposed by the Codicil on the deceased Dr. Jorge Rabadilla, were likewise
transmitted to his compulsory heirs upon his death.
3. ID.; ID.; SUBSTITUTION, DEFINED. Substitution is the designation by the testator of a person or
6. ID.; ID.; MODAL INSTITUTION DISTINGUISHED FROM CONDITIONAL TESTAMENTARY
persons to take the place of the heir or heirs first instituted. Under substitutions in general, the testator
DISPOSITION. The institution of an heir in the manner prescribed in Article 882 is what is known in
may either (1) provide for the designation of another heir to whom the property shall pass in case the
the law of succession as an institucion sub modo or a modal institution. In a modal institution, the
original heir should die before him/her, renounce the inheritance or be incapacitated to inherit, as in a
testator states (1) the object of the institution, (2) the purpose or application of the property left by the
simple substitution, or (2) leave his/her property to one person with the express charge that it be
testator, or (3) the charge imposed by the testator upon the heir. A "mode" imposes an obligation upon
transmitted subsequently to another or others, as in a fideicommissary substitution. dctai
the heir or legatee but it does not affect the efficacy of his rights to the succession. On the other hand, in
4. ID.; ID.; SIMPLE SUBSTITUTIONS DIFFERENT FROM CODICIL; CASE AT BAR. In simple
substitutions, the second heir takes the inheritance in default of the first heir by reason of incapacity,
predecease or renunciation. In the case under consideration, the provisions of subject Codicil do not
a conditional testamentary disposition, the condition must happen or be fulfilled in order for the heir to be
entitled to succeed the testator. The condition suspends but does not obligate; and the mode obligates
but does not suspend. To some extend, it is similar to a resolutory condition.
provide that should Dr. Jorge Rabadilla default due to predecease, incapacity or renunciation, the
7. ID.; ID.; OBLIGATION IMPOSED ON HEIRS SHOULD NOT BE CONSIDERED A CONDITION
testatrix's near descendants would substitute him. What the Codicil provides is that, should Dr. Jorge
UNLESS IT CLEARLY APPEARS FROM THE WILL ITSELF THAT SUCH WAS THE INTENTION OF
Rabadilla or his heirs not fulfill the conditions imposed in the Codicil, the property referred to shall be
THE TESTATOR. Since testamentary dispositions are generally acts of liberality, an obligation
seized and turned over the testatrix's near descendants.
imposed upon the heir should not be considered a condition unless it clearly appears from the Will itself
5. ID.; ID.; FIDEICOMMISSARY SUBSTITUTION DIFFERENT FROM CODICIL; CASE AT BAR.

Neither is there a fideicommissary substitution here and on this point, petitioner is correct. In a
that such was the intention of the testator. In case of doubt, the institution should be considered as
modal and not conditional.
fideicommissary substitution, the first heir is strictly mandated to preserve the property and to transmit
8. ID.; ID.; UNCERTAINTY ON APPLICATION OF ANY PROVISION, INTERPRETED ACCORDING TO
the same later to the second heir. In the case under consideration, the instituted heir is in fact allowed
TESTATOR'S INTENTION. In the interpretation of Wills, when an uncertainty arises on the face of the
under the Codicil to alienate the property provided the negotiation is with the near descendants or the
Will, as to the application of any of its provisions, the testator's intention is to be ascertained from the
sister of the testatrix. Thus, a very important element of a fideicommissary substitution is lacking; the
words of the Will, taking into consideration the circumstances under which it was made. Such
obligation clearly imposing upon the first heir the preservation of the property and its transmission to the
construction as will sustain and uphold the Will in all its parts must be adopted.
second heir. "Without this obligation to preserve clearly imposed by the testator in his will, there is no
fideicommissary substitution." Also, the near descendants' right to inherit from the testatrix is not definite.
The property will only pass to them should Dr. Jorge Rabadilla or his heirs not fulfill the obligation to
deliver part of the usufruct to private respondent. Another important element of a fideicommissary
substitution is also missing here. Under Article 863, the second heir or the fideicommissary to whom the
9. ID.; ID.; CANNOT BE THE SUBJECT OF COMPROMISE. A Will is a personal, solemn, revocable
and free act by which a person disposes of his property, to take effect after his death. Since the Will
expresses the manner in which a person intends how his properties be disposed, the wishes and desires
of the testator must be strictly followed. Thus, a Will cannot be the subject of a compromise agreement
which would thereby defeat the very purpose of making a Will.
property is transmitted must not be beyond one degree from the first heir or the fiduciary. A
fideicommissary substitution is therefore, void if the first heir is not related by first degree to the second
VITUG, J., separate opinion:
heir. In the case under scrutiny, the near descendants are not at all related to the instituted heir, Dr.
1. CIVIL LAW; WILLS AND SUCCESSION; SUBSTITUTION; KINDS. Substitution is the appointment
Jorge Rabadilla.
of another heir so that he may enter into the inheritance in defaultof the heir originally
instituted. Substitution is simple when the testator designates one or more persons to substitute the heir
that of the occurrence of a resolutory condition expressed in the will. In both instances, the property must
or heirs instituted in case the latter should die before him, or should not wish, or should be incapacitated
be returned to the estate of the decedent to then pass on under the rules on intestacy.
to accept the inheritance, and a substitution without a statement of the cases to which it refers shall
comprise all said three cases. There is no simple substitution that takes place where the heir originally
DECISION
instituted is able to succeed. Fideicommissary substitution, on the other hand, occurs when 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. Every fideicommissary substitution should be expressly made in order
PURISIMA, J p:
that it may be valid. The term "fideicommissary substitution" need not, however, be used in the will; it is
enough that there is a clear and unequivocal statement that one shall enjoy usufructuary or other rights,
This is a petition for review of the decision of the Court of Appeals, 3 dated December 23, 1993, in CA-
short of naked ownership or title, over certain property of the testator with the obligation to preserve the
G.R. No. CV-35555, which set aside the decision of Branch 52 of the Regional Trial Court in Bacolod
property and to transmit it to a second heir. It is essential for the validity of a fideicommissary substitution
City, and ordered the defendants-appellees (including herein petitioner), as heirs of Dr. Jorge Rabadilla,
that both heirs are living and qualified to succeed at the time of death by the testator and that the
to reconvey title over Lot No. 1392, together with its fruits and interests, to the estate of Aleja Belleza.
substitute does not go beyond one degree from the heir originally instituted.
The antecedent facts are as follows:

In a Codicil appended to the Last Will and Testament of testatrix Aleja Belleza, Dr. Jorge Rabadilla,
2. ID.; ID.; MODE DISTINGUISHED FROM CONDITION. A mode is distinguished from a condition
predecessor-in-interest of the herein petitioner, Johnny S. Rabadilla, was instituted as a devisee of
contemplated in the rules on succession in that the latter dictates the efficacy, either in a suspensive or
511,855 square meters of that parcel of land surveyed as Lot No. 1392 of the Bacolod Cadastre. The
resolutory manner, of a testamentary disposition while the former obligates the instituted heir to comply
said Codicil, which was duly probated and admitted in Special Proceedings No. 4046 before the then
with the mandate made by the testator but does not prevent the heir from at once claiming the
Court of First Instance of Negros Occidental, contained the following provisions:
inheritance provided he gives a security to ensure compliance with the will of the testator and the return
"FIRST
of the thing received together with its fruits and interests, "should (the heir) disregard the obligation." The
I give, leave and bequeath the following property owned by me to Dr. Jorge
obligation imposed upon the heir or legatee is deemed not to be a condition for his entry forthwith into
Rabadilla resident of 141 P. Villanueva, Pasay City:
the inheritance unless a contrary intention of the testator is evident. In case of doubt, the institution is
considered modal, rather than conditional. Much of the variance in the legal effects of the two classes,
(a) Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title
however, is now practically theoretical and merely conceptual. Under the old Civil Code an institucion
No. RT-4002 (10942), which is registered in my name according to the records of
sub modo could be said to be more akin to an institution sub demonstratione, or an expression of a wish
the Register of Deeds of Negros Occidental.
or suggestion of the testator that did not have any real obligatory force, that matter being left instead to
the discretion of the heir, i.e., whether to abide by it or not. The amendatory provisions of the new Civil
Code now hardly differentiates between the principal effect of the non-compliance with the mode and
(b) That should Jorge Rabadilla die ahead of me, the aforementioned property
and the rights which I shall set forth hereinbelow, shall be inherited and
acknowledged by the children and spouse of Jorge Rabadilla.
xxx xxx xxx

FOURTH
shall then have the obligation to give the ONE HUNDRED (100) piculs of sugar
until Maria Marlina shall die. I further command in this my addition (Codicil) that
my heir and his heirs of this Lot No. 1392, that they will obey and follow that
(a) It is also my command, in this my addition (Codicil), that should I die and
Jorge Rabadilla shall have already received the ownership of the said Lot No.
should they decide to sell, lease, mortgage, they cannot negotiate with others
than my near descendants and my sister." 4
1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT4002 (10942), and also at the time that the lease of Balbinito G. Guanzon of the
said lot shall expire, Jorge Rabadilla shall have the obligation until he dies, every
Pursuant to the same Codicil, Lot No. 1392 was transferred to the deceased, Dr. Jorge Rabadilla, and
Transfer Certificate of Title No. 44498 thereto issued in his name.
year to give Maria Marlina Coscolluela y Belleza, Seventy (75) (sic) piculs of
Dr. Jorge Rabadilla died in 1983 and was survived by his wife Rufina and children Johnny (petitioner),
Export sugar and Twenty Five (25) piculs of Domestic sugar, until the said Maria
Aurora, Ofelia and Zenaida, all surnamed Rabadilla.
Marlina Coscolluela y Belleza dies. Cdpr

On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos brought a complaint, docketed as
FIFTH
(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392 of the
Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10492),
Civil Case No. 5588, before Branch 52 of the Regional Trial Court in Bacolod City, against the abovementioned heirs of Dr. Jorge Rabadilla, to enforce the provisions of subject Codicil. The Complaint
alleged that the defendant-heirs violated the conditions of the Codicil, in that:
shall have the obligation to still give yearly, the sugar as specified in the Fourth
1. Lot No. 1392 was mortgaged to the Philippine National Bank and the Republic
paragraph of his testament, to Maria Marlina Coscolluela y Belleza on the month
Planters Bank in disregard of the testatrix's specific instruction to sell, lease, or
of December of each year.
mortgage only to the near descendants and sister of the testatrix.

SIXTH
I command, in this my addition (Codicil) that the Lot No. 1392, in the event that
the one to whom I have left and bequeathed, and his heir shall later sell, lease,
mortgage this said Lot, the buyer, lessee, mortgagee, shall have also the
obligation to respect and deliver yearly ONE HUNDRED (100) piculs of sugar to
2. Defendant-heirs failed to comply with their obligation to deliver one hundred

(100) piculs of sugar (75 piculs export sugar and 25 piculs domestic sugar) to
plaintiff Maria Marlena Coscolluela y Belleza from sugar crop years 1985 up to
the filing of the complaint as mandated by the Codicil, despite repeated demands
for compliance.
Maria Marlina Coscolluela y Belleza, on each month of December, SEVENTY
3. The banks failed to comply with the 6th paragraph of the Codicil which provided
FIVE (75) piculs of Export and TWENTY FIVE (25) piculs of Domestic, until Maria
that in case of the sale, lease, or mortgage of the property, the buyer, lessee, or
Marlina shall die, lastly should the buyer, lessee or the mortgagee of this lot, not
mortgagee shall likewise have the obligation to deliver 100 piculs of sugar per
have respected my command in this my addition (Codicil), Maria Marlina
crop year to herein private respondent.
Coscolluela y Belleza, shall immediately seize this Lot No. 1392 from my heir and
The plaintiff then prayed that judgment be rendered ordering defendant-heirs to reconvey/return Lot No.
the latter's heirs, and shall turn it over to my near desendants, (sic) and the latter
1392 to the surviving heirs of the late Aleja Belleza, the cancellation of TCT No. 44498 in the name of the
deceased, Dr. Jorge Rabadilla, and the issuance of a new certificate of title in the names of the surviving
For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED FIFTY
heirs of the late Aleja Belleza.
(P26,250.00) Pesos, payable on or before December of crop year

1988-89;
On February 26, 1990, the defendant-heirs were declared in default but on March 28, 1990 the Order of
Default was lifted, with respect to defendant Johnny S. Rabadilla, who filed his Answer, accordingly.

During the pre-trial, the parties admitted that:
1989-90;
On November 15, 1998, the plaintiff (private respondent) and a certain Alan Azurin, son-in-law of the
herein petitioner who was lessee of the property and acting as attorney-in-fact of defendant heirs, arrived
at an amicable settlement and entered into a Memorandum of Agreement on the obligation to deliver one
1990-91; and
hundred piculs of sugar, to the following effect:
"That for crop year 1988-89, the annuity mentioned in Entry No. 49074 of TCT
No. 44489 will be delivered not later than January of 1989, more specifically, to
1991-92." 5
wit:
75 piculs of 'A' sugar, and 25 piculs of 'B' sugar, or then existing in any
of our names, Mary Rose Rabadilla y Azurin or Alan Azurin, during
However, there was no compliance with the aforesaid Memorandum of Agreement except for a partial
delivery of 50.80 piculs of sugar corresponding to sugar crop year 1988-1989.
December of each sugar crop year; in Azucar Sugar Central; and, this
On July 22, 1991, the Regional Trial Court came out with a decision, dismissing the complaint and
is considered compliance of the annuity as mentioned, and in the same
disposing as follows:
manner will compliance of the annuity be in the next succeeding crop

years.
"WHEREFORE, in the light of the aforegoing findings, the Court finds that the
action is prematurely filed as no cause of action against the defendants has as
That the annuity above stated for crop year 1985-86, 1986-87, and
yet arose in favor of plaintiff. While there may be the non-performance of the
1987-88, will be complied in cash equivalent of the number of piculs as
command as mandated exaction from them simply because they are the children
mentioned therein and which is as herein agreed upon, taking into
of Jorge Rabadilla, the title holder/owner of the lot in question, does not warrant
consideration the composite price of sugar during each sugar crop year,
the filing of the present complaint. The remedy at bar must fall. Incidentally, being
which is in the total amount of ONE HUNDRED FIVE THOUSAND
in the category as creditor of the left estate, it is opined that plaintiff may initiate
PESOS (P105,000.00).
the intestate proceedings, if only to establish the heirs of Jorge Rabadilla and in
That the above-mentioned amount will be paid or delivered on a

staggered cash installment, payable on or before the end of December
of every sugar crop year, to wit:
order to give full meaning and semblance to her claim under the Codicil.
In the light of the aforegoing findings, the Complaint being prematurely filed is
that the testamentary institution of Dr. Jorge Rabadilla is a modal institution within the purview of Article
DISMISSED without prejudice. LexLib
882 of the New Civil Code.
SO ORDERED." 6
The petition is not impressed with merit.
On appeal by plaintiff, the First Division of the Court of Appeals reversed the decision of the trial court;
Petitioner contends that the Court of Appeals erred in resolving the appeal in accordance with Article 882
ratiocinating and ordering thus:
of the New Civil Code on modal institutions and in deviating from the sole issue raised which is the
"Therefore, the evidence on record having established plaintiff-appellant's right to

receive 100 piculs of sugar annually out of the produce of Lot No. 1392;
defendants-appellee's obligation under Aleja Belleza's codicil, as heirs of the
modal heir, Jorge Rabadilla, to deliver such amount of sugar to plaintiff-appellant;
defendants-appellee's admitted non-compliance with said obligation since 1985;
and, the punitive consequences enjoined by both the codicil and the Civil Code, of
absence or prematurity of the cause of action. Petitioner maintains that Article 882 does not find
application as there was no modal institution and the testatrix intended a mere simple substitution i.e.,
the instituted heir, Dr. Jorge Rabadilla, was to be substituted by the testatrix's "near descendants" should
the obligation to deliver the fruits to herein private respondent be not complied with. And since the
testatrix died single and without issue, there can be no valid substitution and such testamentary
provision cannot be given any effect.
seizure of Lot No. 1392 and its reversion to the estate of Aleja Belleza in case of
The petitioner theorizes further that there can be no valid substitution for the reason that the substituted
such non-compliance, this Court deems it proper to order the reconveyance of
heirs are not definite, as the substituted heirs are merely referred to as "near descendants" without a
title over Lot No. 1392 from the estates of Jorge Rabadilla to the estate of Aleja
definite identity or reference as to who are the "near descendants" and therefore, under Articles
Belleza. However, plaintiff-appellant must institute separate proceedings to re-
843 8 and 845 9 of the New Civil Code, the substitution should be deemed as not written.
open Aleja Belleza's estate, secure the appointment of an administrator, and

distribute Lot No. 1392 to Aleja Belleza's legal heirs in order to enforce her right,
reserved to her by the codicil, to receive her legacy of 100 piculs of sugar per
year out of the produce of Lot No. 1392 until she dies.
The contentions of petitioner are untenable. Contrary to his supposition that the Court of Appeals
deviated from the issue posed before it, which was the propriety of the dismissal of the complaint on the
ground of prematurity of cause of action, there was no such deviation. The Court of Appeals found that
the private respondent had a cause of action against the petitioner. The disquisition made on modal
Accordingly, the decision appealed from is SET ASIDE and another one entered
institution was, precisely, to stress that the private respondent had a legally demandable right against the
ordering defendants-appellees, as heirs of Jorge Rabadilla, to reconvey title over
petitioner pursuant to subject Codicil; on which issue the Court of Appeals ruled in accordance with law.
Lot No. 1392, together with its fruits and interests, to the estate of Aleja Belleza.
SO ORDERED." 7
Dissatisfied with the aforesaid disposition by the Court of Appeals, petitioner found his way to this
Court via the present petition, contending that the Court of Appeals erred in ordering the reversion of Lot
1392 to the estate of the testatrix Aleja Belleza on the basis of paragraph 6 of the Codicil, and in ruling
It is a general rule under the law on succession that successional rights are transmitted from the moment
of death of the decedent 10 and compulsory heirs are called to succeed by operation of law. The
legitimate children and descendants, in relation to their legitimate parents, and the widow or widower, are
compulsory heirs. 11 Thus, the petitioner, his mother and sisters, as compulsory heirs of the instituted
heir, Dr. Jorge Rabadilla, succeeded the latter by operation of law, without need of further proceedings,
and the successional rights were transmitted to them from the moment of death of the decedent, Dr.
Jorge Rabadilla. dctai
Under Article 776 of the New Civil Code, inheritance includes all the property, rights and obligations of a
renunciation, the testatrix's near descendants would substitute him. What the Codicil provides is that,
person, not extinguished by his death. Conformably, whatever rights Dr. Jorge Rabadilla had by virtue of
should Dr. Jorge Rabadilla or his heirs not fulfill the conditions imposed in the Codicil, the property
subject Codicil were transmitted to his forced heirs, at the time of his death. And since obligations not
referred to shall be seized and turned over to the testatrix's near descendants.
extinguished by death also form part of the estate of the decedent; corollarily, the obligations imposed by
the Codicil on the deceased Dr. Jorge Rabadilla, were likewise transmitted to his compulsory heirs upon
his death.
Neither is there a fideicommissary substitution here and on this point, petitioner is correct. In a
fideicommissary substitution, the first heir is strictly mandated to preserve the property and to transmit
the same later to the second heir. 15 In the case under consideration, the instituted heir is in fact allowed
In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge Rabadilla, subject to the
under the Codicil to alienate the property provided the negotiation is with the near descendants or the
condition that the usufruct thereof would be delivered to the herein private respondent every year. Upon
sister of the testatrix. Thus, a very important element of a fideicommissary substitution is lacking; the
the death of Dr. Jorge Rabadilla, his compulsory heirs succeeded to his rights and title over said
obligation clearly imposing upon the first heir the preservation of the property and its transmission to the
property, and they also assumed his (decedent's) obligation to deliver the fruits of the lot involved to
second heir. "Without this obligation to preserve clearly imposed by the testator in his will, there is no
herein private respondent. Such obligation of the instituted heir reciprocally corresponds to the right of
fideicommissary substitution." 16 Also, the near descendants' right to inherit from the testatrix is not
private respondent over the usufruct, the fulfillment or performance of which is now being demanded by
definite. The property will only pass to them should Dr. Jorge Rabadilla or his heirs not fulfill the
the latter through the institution of the case at bar. Therefore, private respondent has a cause of action
obligation to deliver part of the usufruct to private respondent.
against petitioner and the trial court erred in dismissing the complaint below.
Another important element of a fideicommissary substitution is also missing here. Under Article 863, the
Petitioner also theorizes that Article 882 of the New Civil Code on modal institutions is not applicable
second heir or the fideicommissary to whom the property is transmitted must not be beyond one degree
because what the testatrix intended was a substitution Dr. Jorge Rabadilla was to be substituted by
from the first heir or the fiduciary. A fideicommissary substitution is therefore, void if the first heir is not
the testatrix's near descendants should there be non-compliance with the obligation to deliver the piculs
related by first degree to the-second heir. 17 In the case under scrutiny, the near descendants are not at
of sugar to private respondent.
all related to the instituted heir, Dr. Jorge Rabadilla.
Again, the contention is without merit.
The Court of Appeals erred not in ruling that the institution of Dr. Jorge Rabadilla under subject Codicil is
Substitution is the designation by the testator of a person or persons to take the place of the heir or heirs
first instituted. Under substitutions in general, the testator may either (1) provide for the designation of
in the nature of a modal institution and therefore, Article 882 of the New Civil Code is the provision of law
in point. Articles 882 and 883 of the New Civil Code provide:
another heir to whom the property shall pass in case the original heir should die before him/her,
ARTICLE 882. The statement of the object of the institution or the application of
renounce the inheritance or be incapacitated to inherit, as in a simple substitution, 12 or (2) leave his/her
the property left by the testator, or the charge imposed on him, shall not be
property to one person with the express charge that it be transmitted subsequently to another or others,
considered as a condition unless it appears that such was his intention.
as in a fideicommissary substitution. 13 The Codicil sued upon contemplates neither of the two.
That which has been left in this manner may be claimed at once provided that the
In simple substitutions, the second heir takes the inheritance in default of the first heir by reason of
instituted heir or his heirs give security for compliance with the wishes of the
incapacity, predecease or renunciation. 14 In the case under consideration, the provisions of subject
testator and for the return of anything he or they may receive, together with its
Codicil do not provide that should Dr. Jorge Rabadilla default due to predecease, incapacity or
fruits and interests, if he or they should disregard this obligation.
ARTICLE 883. When without the fault of the heir, an institution referred to in the
Neither is there tenability in the other contention of petitioner that the private respondent has only a right
preceding article cannot take effect in the exact manner stated by the testator, it
of usufruct but not the right to seize the property itself from the instituted heir because the right to seize
shall be complied with in a manner most analogous to and in conformity with his
was expressly limited to violations by the buyer, lessee or mortgagee.
wishes.
In the interpretation of Wills, when an uncertainty arises on 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
The institution of an heir in the manner prescribed in Article 882 is what is known in the law of
succession as an institucion sub modo or a modal institution. In a modal institution, the testator states (1)
consideration the circumstances under which it was made. 23 Such construction as will sustain and
uphold the Will in all its parts must be adopted. 24
the object of the institution, (2) the purpose or application of the property left by the testator, or (3) the
Subject Codicil provides that the instituted heir is under obligation to deliver One Hundred (100) piculs of
charge imposed by the testator upon the heir. 18 A "mode" imposes an obligation upon the heir or
sugar yearly to Marlena Belleza Coscuella. Such obligation is imposed on the instituted heir, Dr. Jorge
legatee but it does not affect the efficacy of his rights to the succession. 19 On the other hand, in a
Rabadilla, his heirs, and their buyer, lessee, or mortgagee should they sell, lease, mortgage or otherwise
conditional testamentary disposition, the condition must happen or be fulfilled in order for the heir to be
negotiate the property involved. The Codicil further provides that in the event that the obligation to deliver
entitled to succeed the testator. The condition suspends but does not obligate; and the mode obligates
the sugar is not respected, Marlena Belleza Coscuella shall seize the property and turn it over to the
but does not suspend. 20 To some extent, it is similar to a resolutory condition. 21
testatrix's near descendants. The non-performance of the said obligation is thus with the sanction of
From the provisions of the Codicil litigated upon, it can be gleaned unerringly that the testatrix intended
that the subject property be inherited by Dr. Jorge Rabadilla. It is likewise clearly worded that the testatrix
imposed an obligation on the said instituted heir and his successors-in-interest to deliver one hundred
piculs of sugar to the herein private respondent, Marlena Coscolluela Belleza, during the lifetime of the
seizure of the property and reversion thereof to the testatrix's near descendants. Since the said
obligation is clearly imposed by the testatrix, not only on the instituted heir but also on his successors-ininterest, the sanction imposed by the testatrix in case of non-fulfillment of said obligation should equally
apply to the instituted heir and his successors-in-interest.
latter. However, the testatrix did not make Dr. Jorge Rabadilla's inheritance and the effectivity of his
Similarly unsustainable is petitioner's submission that by virtue of the amicable settlement, the said
institution as a devisee, dependent on the performance of the said obligation. It is clear, though, that
obligation imposed by the Codicil has been assumed by the lessee, and whatever obligation petitioner
should the obligation be not complied with, the property shall be turned over to the testatrix's near
had become the obligation of the lessee; that petitioner is deemed to have made a substantial and
descendants. The manner of institution of Dr. Jorge Rabadilla under subject Codicil is evidently modal in
constructive compliance of his obligation through the consummated settlement between the lessee and
nature because it imposes a charge upon the instituted heir without, however, affecting the efficacy of
the private respondent, and having consummated a settlement with the petitioner, the recourse of the
such institution.
private respondent is the fulfillment of the obligation under the amicable settlement and not the seizure of
Then too, since testamentary dispositions are generally acts of liberality, an obligation imposed upon the
subject property.
heir should not be considered a condition unless it clearly appears from the Will itself that such was the
Suffice it to state that a Will is a personal, solemn, revocable and free act by which a person disposes of
intention of the testator. In case of doubt, the institution should be considered as modal and not
his property, to take effect after his death. 25 Since the Will expresses the manner in which a person
conditional. 22
intends how his properties be disposed, the wishes and desires of the testator must be strictly followed.
Thus, a Will cannot be the subject of a compromise agreement which would thereby defeat the very
"b) That should Jorge Rabadilla die ahead of me, the aforementioned property
purpose of making a Will.
and the rights which I shall set forth hereinbelow, shall be inherited and
WHEREFORE, the petition is hereby DISMISSED and the decision of the Court of Appeals, dated
acknowledged by the children and spouse of Jorge Rabadilla.
December 23, 1993, in CA-G.R. No. CV-35555 AFFIRMED. No Pronouncement as to costs. prcd
xxx xxx xxx

FOURTH
SO ORDERED.
Melo, J., I concur as well in the separate opinion of Justice Vitug.
"(a) It is also my command, in this my addition (codicil), that should I die and
Jorge Rabadilla shall have already received the ownership of the said Lot No.
Vitug, J., see separate opininon (concurring in result).

1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RTPanganiban, J., I join the separate opinion of Justice Vitug.
4002(10942), and also at the time that the lease of Balbinito Guanzon of the said
lot shall expire, Jorge Rabadilla shall have the obligation until he dies, every year
Gonzaga-Reyes, J., took no part.
to give to Maria Marlina Coscolluela y Belleza, Seventy (75) (sic) piculs of Export
Separate Opinions
sugar and Twenty Five (25) piculs of Domestic sugar, until the said Maria Marlina
Coscolluela y Belleza dies.
VITUG, J., concurring:
"FIFTH
By virtue of a codicil appended to her will, Aleja Belleza devised a 511,856-square meter parcel of land in
"(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392 of
Bacolod City, denominated Lot No. 1392 of the Bacolod Cadastral Survey, to Jorge Ravadilla
the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002
(predecessor-in-interest of petitioner), 1 carrying with it an obligation to deliver to private respondent,
(10942), shall have the obligation to still give yearly, the sugar as specified in the
Maria Marlena Coscolluela y Belleza, one hundred piculs of sugar per crop year during her lifetime. The
Fourth paragraph of this testament, to Maria Marlina Coscolluela y Belleza on the
portions of the codicil, pertinent to the instant controversy, read:
month of December of each year.
"FIRST
"SIXTH
"I give, leave and bequeath the following property owned by me to Dr. Jorge
"I command, in this my addition (Codicil) that the Lot No. 1392, in the event that
Rabadilla, resident of 141 P. Villanueva, Pasay City:
the one to whom I have left and bequeathed, and his heir shall later sell, lease,
mortgage this said Lot, the buyer, lessee, mortgagee, shall have also the
"(a) Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title
obligation to respect and deliver yearly ONE HUNDRED (100) piculs of sugar to
No. RT-4002(10942), which is registered in my name according to the records of
Maria Marlina Coscolluela y Belleza, on each month of December, SEVENTY
the Register of Deeds of Negros Occidental.
FIVE (75) piculs of Export and TWENTY FIVE (25) piculs of Domestic, until Maria
Marlina shall die, lastly should the buyer, lessee, or the mortgagee of this lot, not
have respected my command in this my addition (Codicil), Maria Marlina
Belleza. However, plaintiff-appellant must institute separate proceedings to re-
Coscolluela y Belleza, shall immediately seize this Lot No. 1392 from my heir and
open Aleja Belleza's estate, secure the appointment of an administrator, and
the latter's heirs, and shall turn it over to my near descendants, 2 and the latter
distribute Lot No. 1392 to Aleja Belleza's legal heirs in order to enforce her right,
shall then have the obligation to give the ONE HUNDRED (100) piculs of sugar
reserved to her by the codicil, to receive her legacy of 100 piculs of sugar per
until Maria Marlina shall die. I further command in this my addition (Codicil) that
year out of the produce of Lot No. 1392 until she dies.
my heir and his heirs of this Lot No. 1392, that they will obey and follow that
should they decide to sell, lease, mortgage, they cannot negotiate with others
than my near descendants and my sister." 3
"Accordingly, the decision appealed from is SET ASIDE and another one entered
ordering defendants-appellees, as heirs of Jorge Rabadilla, to reconvey title over
Pursuant to the above provisions of the codicil, ownership of Lot No. 1392 was transferred to Jorge
Lot No. 1392, together with its fruits and interests, to the estate of Aleja Belleza.
Rabadilla and Transfer Certificate of Title No. T-44498 was issued in his name. LexLib
SO ORDERED." 5
Sometime in 1983, Jorge Rabadilla died, survived by his wife, Rufina, and their children Johnny, Aurora,
Ofelia and Zenaida.
Petitioner, in the instant petition for review, submits that the appellate court has erred in: (1) ordering the
reversion of Lot 1392 to the estate of Aleja Belleza on the basis of paragraph six of the codicil, and (2) in
On 21 August 1989, on account of the failure of the heirs of Jorge Rabadilla to comply with the obligation
ruling that the testamentary institution of Dr. Jorge Rabadilla is a modal institution within the purview of
under the codicil, private respondent filed an action, docketed Civil Case No. 5588, against the Rabadilla
Article 882 of the Civil Code. Additionally, he avers that respondent court has improvidently deviated
heirs before the Regional Trial Court, Branch 52, of Bacolod City for the reconveyance of Lot 1392 to the
from the sole issue raised which is the prematurity of the action before the court a quo. Upon the other
heirs of Aleja Belleza and the cancellation of Transfer Certificate of Title No. 44498 covering the property
hand, respondent would have this Court sustain the assailed decision of the Court of Appeals contending
in the name of Jorge Rabadilla.
that the appellate court is completely justified in delving into the nature of the institution in the codicil, the
The trial court dismissed the complaint "without prejudice." 4 On appeal taken by private respondent to
same having a direct significance on the issue of whether or not the complaint before the trial court has
the Court of Appeals, the appellate court set aside the appealed decision and held:
been prematurely filed. Private respondent adds that the institution in question is modal within the
"Therefore, the evidence on record having established plaintiff-appellant's right to
context of Article 882 of the Civil Code which gives her the right to seize the subject property.
receive 100 piculs of sugar annually out of the produce of Lot No. 1392;
I agree with my colleagues that "substitution" is not here apropos. Substitution is the appointment of
defendants-appellees' obligation under Aleja Belleza's codicil, as heirs of the
another heir so that he may enter into the inheritance in default of the heir originally
modal heir, Jorge Rabadilla, to deliver such amount of sugar to plaintiff-appellant;
instituted. 6 Substitution is simple when the testator designates one or more persons to substitute the
defendants-appellees' admitted non-compliance with said obligation since 1985;
heir or heirs instituted in case the latter should die before him, or should not wish, or should be
and, the punitive consequences enjoined by both the codicil and the Civil Code, of
incapacitated to accept the inheritance, and a substitution without a statement of the cases to which it
seizure of Lot No. 1392 and its reversion to the estate of Aleja Belleza in case of
refers shall comprise all said three cases. 7 There is no simple substitution that takes place where the
such non-compliance, this Court deems it proper to order the reconveyance of
heir originally instituted is able to succeed. 8 Fideicommissary substitution, on the other hand, occurs
title over Lot No. 1392 from the estate of Jorge Rabadilla to the estate of Aleja
when 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. 9 Every fideicommissary substitution should be
the heir from at once claiming the inheritance provided he gives security to ensure compliance with the
expressly made in order that it may be valid. 10 The term "fideicommissary substitution" need not,
will of the testator and the return of the thing received together with its fruits and interests, "should (the
however, be used in the will; It is enough that there is a clear and unequivocal statement that one shall
heir) disregard this obligation." The obligation imposed upon the heir or legatee is deemed not to be a
enjoy usufructuary or other rights, short of naked ownership or title, over certain property of the testator
condition for his entry forthwith into the inheritance unless a contrary intention of the testator is evident.
with the obligation to preserve the property and to transmit it to a second heir. 11 It is essential for the
In case of doubt, the institution is considered modal, rather than conditional. Much of the variance in the
validity of a fideicommissary substitution that both heirs are living and qualified to succeed at the time of
legal effects of the two classes, 14 however, is now practically theoretical and merely conceptual. Under
death by the testator and that the substitute does not go beyond one degree from the heir originally
the Old Civil Code 15 an institucion sub modo could be said to be more akin to an institution sub
instituted. The term "one degree" has been the subject of varied interpretation. One view is to the effect
demonstratione, or an expression of a wish or suggestion of the testator that did not have any real
that the term means one transfer, citing the Supreme Tribunal of Spain and as advocated by eminent
obligatory force, that matter being left instead to the discretion of the heir, i.e., whether to abide by it or
civilists as Justices J.B.L. Reyes, R. Puno, E. Caguioa, and D. Jurado. In Ramirez vs.
not. The amendatory provisions of the New Civil Code now hardly differentiates between the principal
Ramirez, 12 decided on 15 February 1982, the Court, however, adopted the literal view that "one
effect of the non-compliance with the mode and that of the occurrence of a resolutory condition
decree" means relationship or generation as so advanced by equally eminent writers Dr. A. Padilla,
expressed in the will. In both instances, the property must be returned to the estate of the decedent to
Justice E. Paras and Dr. A. Tolentino. In the subsequent case of the Testate Estate case of Fr.
then pass on under the rules of intestacy.
Aranas, 13 however, the Court upheld the usufructuary right of the Roman Catholic Church under a
ACCORDINGLY, I also vote for the dismissal of the instant petition.
legacy that now renders doubtful the continued validity of the Ramirez doctrine. dctai
||| (Rabadilla v. Court of Appeals, G.R. No. 113725, [June 29, 2000], 390 PHIL 11The institution of Jorge Rabadilla in the Belleza codicil partook the nature of an institution sub modo,
rather than one of substitution, governed by the provisions of Article 882 of the Civil Code. This law
provides:
"ARTICLE 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." (Italics supplied)
A mode is distinguished from a condition contemplated in the rules on succession in that the latter
dictates the efficacy, either in a suspensive or resolutory manner, of a testamentary disposition while the
former obligates the instituted heir to comply with the mandate made by the testator but does not prevent
36)
FIRST DIVISION
After a more thorough consideration of those arguments, we are persuaded that the decision of the
Court of Appeals should not be changed. LLjur
[G.R. No. 95329. January 27, 1993.]

Don Cayetano Revilla y De la Fuente owned two valuable pieces of land with buildings on Calle
HERACIO R. REVILLA, petitioner, vs. HON. COURT OF APPEALS,
FORTUNATO REVILLA, LUZ REVILLA DAVID, LORETO REVILLA
GUTIERREZ, VENERANDA REVILLA MANIQUEZ, NICASIO REVILLA,
Azcarraga (now C.M. Recto Street) in the City of Manila, and six (6) parcels of land in his hometown of
San Miguel, Bulacan. These properties, now worth some P30 million, are registered in his name and
more particularly described as follows:
PERFECTA REVILLA BALACANIA, JUSTINA REVILLA DEL ROSARIO and
"a) TRANSFER CERTIFICATE OF TITLE NO. 76620 (now TCT No. 170750-ind.)
AGRIPINA REVILLA CHACON,respondents.
REGISTRY OF DEEDS FOR THE CITY OF MANILA

"A PARCEL OF LAND (Lot No. 22 of Block No. 2565 of the
Manahan, Conrado De Vera, Aquino & Associates Law Offices for petitioner.
Cadastral Survey of the City of Manila, Cadastral Case No. 46,
Abad, Bautista & Associates for private respondents.
G.L.R.O. Cadastral Record No. 229) with the buildings and other
improvements now found thereon, situated on the SW, line of Calle
Azcarraga, District of Quiapo . . . containing an area of ONE
DECISION
THOUSAND ONE HUNDRED NINETY THREE SQUARE METERS

AND SEVENTY SQUARE DECIMETERS (1,193.70), more or less,
GRIO-AQUINO, J p:
Assessed value P1,834,980.00

"b) TRANSFER CERTIFICATE OF TITLE NO. 66173 (now TCT No. 170751-ind.)
This is a petition for review of the decision dated September 13, 1990 of the Court of Appeals in CA-G.R.
REGISTRY OF DEEDS FOR THE CITY OF MANILA
CV No. 18190 affirming the decision of the Regional Trial Court of Manila, Branch 39, in Special
Proceeding No. 86-38444 which disallowed the second will supposedly executed on September 13,
1982 by the late Don Cayetano Revilla whose first Will dated January 28, 1978 had been probated on
March 21, 1980 on his own petition in Special Proceeding No. 128828 of the same court, while he was
still alive.
"A PARCEL OF LAND (Lot No. 24 of Block No. 2565 of the

Cadastral Survey of the City of Manila, Cadastral Case No. 46,
G.L.R.O. Cadastral Record No. 229) with the buildings and
improvements now found thereon, situated on the SW, line of Calle
Azcarraga; District of Quiapo . . . containing an area of SEVEN
In our resolution of November 19, 1990, we denied the petition for review for it raises only factual issues.
However, upon the petitioner's motion for reconsideration, we set aside that resolution and gave due
HUNDRED SQUARE METERS AND SEVENTY SQUARE

DECIMETERS (700.70), MORE OR LESS.
course to the petition so that the parties may argue their respective positions with more depth and scope.
Assessed value P3,297,150.00.
"c) TRANSFER CERTIFICATE OF TITLE NO. T-192136 REGISTRY OF DEEDS
"f) TRANSFER CERTIFICATE OF TITLE NO. 22263 REGISTRY OF DEEDS FOR
FOR THE PROVINCE OF BULACAN
THE PROVINCE OF BULACAN
"A parcel of land (Lot 1245-A-6 of the subd. plan (LRC) Psd-
"A parcel of land (Lot No. 722 of the Cadastral Survey of San
177051, being a portion of Lot 1245-A, Psd-11366, LRC Cad. Rec. No.
Miguel), situated in the Municipality of San Miguel, . . . containing an
700), situated in the Barrio of Salacot, Mun. of San Miguel, Prov. of
area of SEVENTEEN THOUSAND AND EIGHTY SIX (17,086)
Bulacan, Island of Luzon. . . . containing an area of TEN THOUSAND
SQUARE METERS, more or less.
(10,000) SQUARE METERS, more or less.

Assessed value P4,000.00.
"d) TRANSFER CERTIFICATE OF TITLE NO. T-192137 REGISTRY OF DEEDS
Assessed value P4,190.00

"g) TRANSFER CERTIFICATE OF TITLE NO. T-242301 REGISTRY OF DEEDS

"A parcel of land [Lot 1245-A-7 of the subd. plan (LRC) Psd-
"A parcel of land (Lot 108 of the Cad. Survey of San Miguel),
situated in the Municipality of San Miguel, . . . containing an area of
FIVE HUNDRED AND SEVENTY THREE SQUARE METERS more of
700], situated in the Barrio of Salacot, Mun. of San Miguel, Prov. of
less.
Bulacan, Island of Luzon . . . containing an area of SEVEN
THOUSAND EIGHT HUNDRED NINETY (7,890) SQUARE METERS,

more or less.
"h) Cemetery lots with a mausoleum (Lots Nos. 66, 67, 68, 69, 70 and 71, Block
No. 3) situated at the Sta. Rita Memorial Park, San Miguel, Bulacan (no

"e) TRANSFER CERTIFICATE OF TITLE NO. T-22049 REGISTRY OF DEEDS
"A parcel of land (Lot 1245-A-9 of the subd. plan (LRC) Psd-
commercial value)." (pp. 63-64, Rollo.)

On January 28, 1978, Don Cayetano Revilla, a bachelor, without issue nor any surviving ascendants,
executed a last will and testament bequeathing all his properties to his nine (9) nephews and nieces, the
parties herein, who are full blood brothers and sisters, including the petitioner, Heracio Revilla. To each
of them, he bequeathed an undivided one-tenth (1/10) of his estate reserving the last tenth for the
700), situated in the Barrio of Salacot, Municipality of San Miguel, Prov.
masses to be said after his death, and for the care of the religious images which he kept in a chapel in
of Bulacan, . . . containing an area of ONE THOUSAND FIVE
San Miguel, Bulacan, where masses could be held also (p. 126, Records).
HUNDRED FOURTEEN (1,514) SQUARE METERS, more or less.

During his lifetime, Don Cayetano had himself sought the probate of his will and on March 21, 1980 the
Court of First Instance of Manila, Branch X, after due hearing in Special Proceeding No. 128828, allowed
and admitted said will to probate.
On November 19, 1981, however, the City Hall of Manila was destroyed by fire. The records of Special
The private respondents also opposed Heracio's petition for appointment as executor and/or special
Proceeding No. 128828 also went up in flames. Shortly thereafter, a petition for reconstitution of the
administrator of the estate on the ground that the alleged will is null and void, hence the designation
records of Special Proceeding No. 128828 was filed, and after a proper hearing wherein Don Cayetano
therein of Heracio as executor is likewise null and void, and that moreover, he is unfit for the trust (pp. 9-
testified again, the petition for reconstitution was granted (Exh. '34'). (pp. 51-52, 179, Rollo.).
12, Records).
Don Cayetano died on November 11, 1986 at the age of 91.
In an order dated May 7, 1987, the lower court held in abeyance the resolution of the issue with regard to
On November 19, 1986, Heracio Revilla, the oldest nephew, filed a petition for probate of another will,
allegedly executed by Don Cayetano on September 13, 1982 wherein he (Heracio) was instituted
as sole heir of his uncle's estate and executor of the will.
The probate of the second will was opposed by Heracio's eight (8) brothers and sisters, the private
respondents herein. As ground for their opposition, they alleged:
". . . a) that on March 21, 1980 in Special Proceeding No. 128828, the then Court
the propriety of Heracio's being appointed as executor (pp. 34-36, Records), but ordered the parties to
present their evidence pro and con vis-a-vis the probate of the second will (Ibid).
On December 1, 1987, the trial court rendered a decision disallowing the second will and, accordingly,
dismissed the case with costs against the petitioner (Decision, pp. 144-184, Records; pp. 52-53, Rollo.).
On appeal to the Court of Appeals (CA-G.R. CV No. 18190, Sept. 19, 1990), the decision of the lower
court was affirmed. This petition for review was filed by Heracio under Rule 45 of the Rules of Court.
of First Instance of Manila, Branch 10, allowed and admitted to probate the last
The lone issue in this case is whether the Court of Appeals (and the trial court) erred in disallowing the
will and testament of the deceased Cayetano Revilla and that since then and up
alleged second will of Don Cayetano Revilla. LibLex
to the time of his death. Cayetano Revilla never informed them that he revoked
the will dated January 28, 1978; (b) that the will sought to be probated was not
executed in accordance with law and that the signature of Cayetano Revilla was
different from his usual and customary signature; (c) that when the will was
allegedly executed the decedent was already of unsound mind or otherwise
mentally incapable of making a will or was already incompetent and could not,
without outside aid, take care of himself and manage his properties becoming
thereby an easy prey of deceit and exploitation; d) that the alleged will was
After a careful examination of the records, we share the appellate court's doubts regarding the
authenticity and due execution of the second will. Indeed, when Don Cayetano testified on November 27,
1982 in the reconstitution proceedings, he was unaware of the second will which he supposedly made
only two months previous on September 13, 1982. He identified his first will and declared that it was his
true and only will. He denied having subsequently made another will. He could not have executed a
second will September 13, 1982 because he was sick in the hospital at that time - for two (2) months
before October 21, 1982, or, in August to September 1982, and he did not, and could not, sign any
papers while he was confined in the hospital.
executed with undue and improper pressure and influence on the part of the
beneficiaries thereon or some other persons for their benefit; e) that the will is
void and ineffective for the reason that it was executed under duress or the
"ATTY. DAVID
influence of fear or of threats; and f) that the decedent acted by mistake and the
May I request that this letter dated October 21, 1982, be marked Exhibit
signatures in the alleged will were procured by fraud or trick, and he did not intend
'C'. . .
that the instrument should be his will at the time of fixing (sic) his signatures
thereto" (Opposition to Probate of Alleged Will, pp. 7-8, Records).
"xxx xxx xxx.
"By the way Mr. Revilla, will you tell us whether you can still read when
Cayetano Revilla - that one in the Court which was approved by the
you signed this letter?
Court we would like to request from you if this is the envelope which
contains a copy of the will and if this is your signature?
"A Yes, I can.
"xxx xxx xxx.
"Q Did you read the contents of this letter?
"Q And at the back of this envelope are four signatures, are these your
"A Yes, I did.
signatures?
"Q When you were sick, before you signed this letter on October 21, 1982, were
"A (Looking over the four signatures at the back of the envelope) Yes, these are
you confined at the hospital?
all my signatures.
"A Yes.
"Q And your instructions were to open this envelope . . . 'Buksan ito pagkalibing
"Q How long were you confined at the hospital, was it for one month?
ko.'
"A More than one month, may be two months.
"A Yes, that is right.
"Q When you were in the hospital you cannot sign because you were sick?
"Q And since you are still alive you asked the Court that your last will and
testament be approved and allowed and what is in the last will and
"A No, I cannot sign.
testament is what will prevail?

"xxx xxx xxx.
"A Yes, sir." (pp. 119-120, Rollo; Emphasis ours.)
"Q Will you tell us Don Cayetano if you ever executed a last will and testament
after this one has been probated by the Court?
He identified his first will and directed Atty. David to deliver it to the Court: "siyang ibigay sa husgado" (p.
122, Rollo).
"A None, sir." (pp. 20-30, tsn, November 27, 1982.)

"ATTY. DAVID
He recognized the original will and acknowledged that he signed it.
"Now that I have told you in the presence of your grandson-in-law, Atty.
"ATTY. DAVID
Latosa, that the last will and testament which the court admitted and
". . . we were granted by the Court permission to come here to find out
allowed to probate was burned, why I asked you if this is the envelope
from you about your will approved by the Court which was burned
and you remember this is the envelope and you said you do, and that
which needs to be reconstituted which Atty. Dacanay undertook as your
the five signatures appearing in this envelope are your signatures, now
counsel and I was included because your heirs requested me, . . .
are you willing to have this envelope opened?
Since the document were burned, we have here a brown envelope

"A Yes, kung anong nandiyan, siyang ibigay sa husgado." (p. 122, Rollo).
which states on its face 'Buksan ito pagkalibing ko' - then a signature
Although the envelope containing a copy of the first will was sealed, with instructions to open it after his
funeral, Don Cayetano wanted "to open it now" (p. 123, Rollo).
"ATTY. LATOSA
"Can you please read what is written in that envelope which you
allowed to be opened.
"A Yes, 'buksan ito pagkalibing ko.'
"Q And all the pages of this last will and testament were all signed by you which
reads Cayetano Revilla, will you go over these fourteen pages and tell
us if the signatures here reading Cayetano Revilla are your signatures?
"A (After going over the document, page by page and looking at the signature
reading Cayetano Revilla in every page).
"Yes, these are all my signatures, the ones reading Cayetano Revilla."
(p. 131, Rollo; Emphasis supplied.).
"ATTY. DAVID
He recognized himself and his lawyer, Attorney Benjamin Dacanay, in the pictures that were taken during
"Do you want to open this now?
"A Yes.
the signing of his first will.

"Q Now, in this envelope there are pictures five pictures in all, will you go over
"Q Do you wish to open this envelope now?
these and tell us if you can remember any of those persons appearing
in the pictures?
"A Yes, I want to open it now."(p. 123, Rollo.)

"A This one. (testator pointing to a person in the picture) is Mr. Dacanay.
Don Cayetano declared that he understood that the document inside the envelope was his will
["naiintindihan ko po iyon" (p. 131, Rollo)].
"Q This envelope which contained the last will and testament which I took the
contents in your presence and in the presence of the other
representation here including the representatives of the Court, the
document contained therein is entitled. 'Unang Pahina. Huling Habilin ni
"ATTY. DAVID
"May I request that this picture wherein Don Cayetano Revilla identified
Atty. Dacanay, be marked as Exhibit 'D'.).
"There is a person in this picture, the one second from the left, will you
go over it and see if you remember that person?
Don Cayetano Revilla.' consisting of fourteen pages, the title means

that this is your last will and testament?
"A Yes, Naiintindihan ko po iyon.
"Q And you executed this on the 28 of January as appearing . . . 28th of January
1978, as appearing on the 13th page of this last will and testament?
"A Yes.
"A I am that person.

"Q Now in this second picture, do you recognize anybody here?
"A Yes, I can recognize myself when I was signing the will.
"Q Who else do you know is present in that picture?
"A This one, he is Mr. Dacanay.
"Q How about the other one?
"A I don't know the others." (p. 133, Rollo; Emphasis supplied).
witnesses of the alleged second will of the late Cayetano Revilla cannot outweigh
the denial of the late Cayetano Revilla. . . ." (p. 95, Rollo.)
Don Cayetano assured Attorney David that his original will was his "genuine will and testament and not
changed" (p. 134, Rollo).
Significantly, although the petitioner opposed the reconstitution of Don Cayetano's first will, he did not
reveal the second will which Don Cayetano supposedly made only two (2) months before he testified in
"ATTY. DAVID
the reconstitution proceeding. Why was the second will kept under wraps? Did Heracio fear that if Don
"xxx xxx xxx.
Cayetano were confronted with the document, he would have disowned it? The explanation of the
"We are doing this Mr. Revilla because in case there will be an
petitioner that an inquiry into the existence of the second will "was totally uncalled for, immaterial, and
opposition to this last will and testament we can prove that this is the
irrelevant" (p. 96, Rollo), is unconvincing. For if the second will already existed on November 27, 1982, it
genuine will and testament and not changed.
would have been Heracio's strongest argument against the reconstitution of the probate of the first
will. LexLib
"A Yes, that is true sir, that is the truth." (p. 134, Rollo.)
The petitioner's argument that Don Cayetano's testimony is inadmissible because petitioner's counsel,
He declared that he did not execute another last will and testament after the original will had been
Attorney Layosa, had no opportunity to cross-examine him (p. 146, Rollo), does not wash. The
probated.
opportunity was there all the time. Attorney Layosa simply made no attempt to exercise his right to cross"Q Will you tell us Don Cayetano if you ever executed a last will and testament
examine Don Cayetano.
after this one has been probated by the Court?

If Don Cayetano's testimony was "an honest mistake due to a misapprehension of fact" as the petitioner
"A None, sir." (p. 135, Rollo.)
The petitioner's contention that Don Cayetano's denial constitutes "negative declaration" which has no
"probative value under the rules of evidence" (p. 73, Rollo) is not correct. Don Cayetano's assertion that
insists (p. 35, Rollo), that mistake would have been rectified by inviting his attention to the second will. It
seems, however, that Attorney Layosa was under constraint not to disclose the second will to Don
Cayetano.
he did not execute another will, was not negative evidence. Evidence is negative when the witness
Even the letter that Don Cayetano supposedly sent to the court disowning the petition for reconstitution
states that he did not see or know the occurrence of a fact, and positive when the witness affirms that a
of the records of the first probate proceeding, did not disclose that he had already made another will. As
fact did or did not occur (2 Moore on Facts, p. 1338). Don Cayetano's declaration that he did not execute
pointedly observed by the Court of Appeals, if Don Cayetano were aware that he made a second will, he
a second will, constitutes positive evidence of a fact personally known to himself: that he did not make a
"could have easily told the Court that the reconstitution proceeding was useless" because he had
second will. As correctly held by the Court of Appeals:
already made a second will revoking the first (pp. 54-55, Rollo).
"This categorical denial by the late Cayetano Revilla must be believed by
The testimonies of the notary and attesting witnesses and even the photographs of what purported to be
everybody. If he denied having executed another will, who are we to insist that he
the signing of the second will were not given credit by the trial court and the Court of Appeals. The
made another or second will after the probate of his will dated January 28, 1978?
court's observation that the photographs do not show the nature of the document that was being signed,
The testimonies of the alleged notary public as well as the three instrumental
nor the date of the transaction, is valid. The lower court's distrust for the testimonies of the attesting
witnesses to the second will deserves our highest respect (People vs. Sarol, 139 SCRA 125; Guita vs.
have denied that he made it. He would probably have caused it to be probated while he was still alive, as
CA, 139 SCRA 576; People vs. Cabanit, 139 SCRA 94).
he did with his first will.
Since the execution of the second will could not have occurred on the date (September 13, 1982)
But apparently, the instrument was foisted on him without his being aware of its true nature which the
appearing therein (for Don Cayetano was admittedly sick in the hospital then) it must have been
petitioner assiduously concealed, not only from the court and the private respondents, but from Don
procured at the time when the testator was a virtual prisoner, held incommunicado, in his house. The
Cayetano himself.
Honorable Judge (later Court of Appeals Justice) Eduardo Bengson had to issue an order commanding
the petitioner to allow his eight (8) brothers and sisters to visit Don Cayetano. Only then were they able
to penetrate the iron curtain that Heracio had placed around their uncle. A videotape, taken during their
pleasant visit with the old man and shown in court, belied Heracio's allegation that Don Cayetano was
displeased with his said nephews and nieces, that was why he left them out of second will.
That the dispositions in the second will were not made by Don Cayetano is proven by the omission
therefrom of Don Cayetano's reservation of one-tenth of his properties and the income thereof to pay for
holy masses for the repose of his soul and to be spent for the maintenance of his family chapel which
houses the religious images he owned in San Miguel, Bulacan. That provision in his first will, for his
personal benefit, would not have been deleted by Don Cayetano if his only purpose in making a second
will was to disinherit his eight nephews and nieces. But Heracio overdid himself. He wanted
Despite Judge Bengzon's order, Heracio did not cease his efforts to monopolize Don Cayetano and his
everything. llcd
estate. To isolate Don Cayetano and make him inaccessible to the private respondents, Heracio
The objection to the deposition of Don Cayetano for want of an oath before he testified, is tardy.
transferred him from his own house on Claro M. Recto Avenue in Manila to Heracio's house in
Objection to the lack of oath should have been made at the taking of his deposition. Section 29(d), Rule
Novaliches, Quezon City.
24 of the Rules of Court provides:
The execution of the second will in an environment of secrecy and seclusion and the disinheritance of
his eight (8) other nephews and nieces of whom he was equally fond, justified the trial court's and the
Court of Appeals' belief that undue influence was exercised by Heracio over Don Cayetano to make him
sign the second will (which Don Cayetano did not know to be such) in order to deprive his brothers and
sisters of their rightful share in their uncle's estate.
The employment of undue influence by Heracio was not "mutually repugnant" to fraud (p. 172, Rollo) as
the petitioner insists, for it was the means employed by Heracio to defraud his brothers and sisters of
their share in Don Cayetano's estate.
"(d) As to oral examination and other particulars.

"Errors and irregularities occurring at the oral examination in the manner of taking
the deposition, in the form of the questions or answers, in the oath or affirmation,
or in the conduct of the parties and errors of any kind which might be obviated,
removed, or cured if promptly prosecuted, are waived unless reasonable
objection thereto is made at the taking of the deposition." (Emphasis ours.)
While the petitioner puts much stock in the supposed due execution of the will and the competence of
the attesting witnesses Co, Barredo and Lim the trial court, with whom the Court of Appeals
There was fraud because Don Cayetano was not apprised that the document he was signing with Co,
agreed, gave them low marks for credibility. The factual observations of the Court of Appeals on this
Barredo and Lim was a second will revoking the dispositions of property that he made in his first will.
point are quoted below:
Had he been aware that it was a second will, and if it were prepared at his own behest, he would not
"Assuming for the sake of arguments that the second will was executed, the
testimonies of the notary public who prepared and before whom the will was
acknowledged, as well as those of the three (3) instrumental witnesses thereof
ability of the old man in answering even small children yes, sir, is too
were not given credit by the lower court, and so with this Court, because of major
good to be true . . .' (pp. 33-34, Decision, pp. 176-177, Records).
contradictions in their testimonies.
"Witness Dr. Co's testimony that he did not charge the late Cayetano Revilla for
"As regards notary public Atty. Mendoza, the court a quo doubted his credibility as
two services rendered by him and that he only charged when a third service was
follows:
made was also doubted by the lower court. Said the court a quo:
"'The prevarications on the testimonies of witnesses are not
'. . . witness Co, a practicing dentist was munificent enough
difficult to find especially if we consider that in a second meeting only
not to charge Don Cayetano for two time services and only charged him
with Don Cayetano, Atty. Mendoza would readily be entrusted with the
the 3rd time.'
delicate and confidential preparation of a second will, designed to

disinherit his eight nephews and nieces in favor of Heracio, the operator
of the bowling alley where witness Mendoza always play; . . .' (p. 36,
Decision; p. 179, Records).
'. . . Added to this is the statement of Atty. Mendoza that the
old man could understood (sic) both English and Tagalog. On this
score, this Court entertains doubt as to its truthfulness because it was
testified to by Barredo, prosecution witness and corroborated by Ms.
Bingel, principal witness for the oppositors, that the old man is versatile
in Tagalog as he is a Bulakeo but could not speak English except to
say word, yes, sir . . .' (p. 33, Decision, p. 176, Records).
"With respect to witness Alfredo Barredo, the truthfulness of his testimonies was
doubted by the lower court in this wise:
'. . . Another point noticed by this Court is the testimony of
It may be added here that the testimony of Dr. Co that the testator read his will in
silence before they were asked to affix their signatures (tsn., Aug. 17, 1987, pp.
30-31, 45) is completely different from the testimony of another witness
(Fernando Lim) who testified that the late Don Cayetano read his will aloud before
he gave it to the witnesses for their signatures (tsn., Aug. 13, 1987, pp. 47,
52). LibLex
"The above citations of the inconsistencies and contradictions fatally made by
said witnesses are only some of the more important one as discussed in the
decision of the lower court. But they are enough, to say the least, to convince this
Court that indeed said witnesses crossed the boundaries of their credibilities."
(pp. 56-57, Rollo.)
WHEREFORE, finding no reversible error in the decision of the Court of Appeals, the petition for review
is DENIED. Costs against the petitioner.
SO ORDERED.
Alfredo Barredo that after talking with Atty. Mendoza at the phone he
was asked by the old man to fetch the 2 witnesses however when
Cruz, Padilla and Bellosillo, JJ ., concur.
asked on direct examination, he stated that he stayed all along with the
old man and did not leave him even after talking with Atty. Mendoza,
||| (Revilla v. Court of Appeals, G.R. No. 95329, [January 27, 1993])
which spells a whale of difference in time element and enormously
distanced from the truth. So also, his exaggerated demonstration of the
SECOND DIVISION
the impressions or perceptions of the tribunal to the objective existence of the thing perceived. The law
does not need and does not attempt to consider theories of psychology as to the subjectivity of
[G.R. No. 93980. June 27, 1994.]
knowledge or the mediateness of perception. It assumes the objectivity of external nature; and, for the
purposes of judicial investigation, a thing perceived by the tribunal as existing does exist. "There are
CLEMENTE CALDE, petitioner, vs. THE COURT OF APPEALS, PRIMO
indeed genuine cases of inference by the tribunal from things perceived to other things unperceived
AGAWIN and DOMYAAN APED, respondents.
as, for example, from a person's size, complexion, and features, to his age; these cases of a real use of
inference can be later more fully distinguished . . . . But we are here concerned with nothing more than
SYLLABUS
matters directly perceived for example, that a person is of small height or is of dark complexion; as to
such matters, the perception by the tribunal that the person is small or large, or that he has a dark or
1. REMEDIAL LAW; EVIDENCE; FACTUAL FINDINGS OF THE COURT OF APPEALS; RULE; CASE
light complexion, is a mode of acquiring belief which is independent of inference from either testimonial
AT BAR, AN EXCEPTION. The question in the case at bench is one of fact: whether or not, based on
or circumstantial evidence. It is the tribunal's self-perception, or autopsy, of the thing itself. "From the
the evidence submitted, respondent appellate court erred in concluding that both decedent's Last Will
point of view of the litigant party furnishing this source of belief, it may be termed Autoptic Proference."
and Testament, and its Codicil were subscribed by the instrumental witnesses on separate occasions. As
3. ID.; ID.; ID.; RULE WHEN AUTOPTIC PROFERENCE CONTRADICTS TESTIMONIAL EVIDENCE.
a general rule, factual findings of the Court of Appeals are considered final and conclusive, and cannot
In the case at bench, the autoptic proference contradicts the testimonial evidence produced by
be reviewed on appeal to this court. In the present instance, however, there is reason to make an
petitioner. The will and its codicil, upon inspection by the respondent court, show in black and white or
exception to that rule, since the finding of the respondent court is contrary to that of the trial court.
more accurately, in black and blue that more than one pen was used by the signatories thereto. Thus,
2. ID.; ID.; SOURCES THEREOF; EXPLAINED. It is accepted that there are three sources from which
it was not erroneous nor baseless for respondent court to disbelieve petitioner's claim that both
a tribunal may properly acquire knowledge for making its decisions, namely: circumstantial evidence,
testamentary documents in question were subscribed to in accordance with the provisions of Art. 805 of
testimonial evidence, and real evidence or autoptic proference. Wigmore explains these sources as
the Civil Code.
follows: "If, for example, it is desired to ascertain whether the accused has lost his right hand and wears
4. ID.; ID.; WEIGHT OF EVIDENCE; TESTIMONY OF NOTARY PUBLIC ACKNOWLEDGING THE
an iron hook in place of it, one source of belief on the subject would be the testimony of a witness who
WILL, NOT ACCORDED GREAT WEIGHT IN CASE AT BAR. Neither did respondent court err when it
had seen the arm; in believing this testimonial evidence, there is an inference from the human assertion
did not accord great weight to the testimony of Judge Tomas A. Tolete. It is true that his testimony
to the fact asserted. A second source of belief would be the mark left on some substance grasped or
contains a narration of how the two testamentary documents were subscribed and attested to, starting
carried by the accused; in believing this circumstantial evidence, there is an inference from the
from decedent's thumbmarking thereof, to the alleged signing of the instrumental witnesses thereto in
circumstance to the thing producing it. A third source of belief remains, namely, the inspection by the
consecutive order. Nonetheless, nowhere in Judge Tolete's testimony is there any kind of explanation for
tribunal of the accused's arm. This source differs from the other two in committing any step of conscious
the different-colored signatures on the testaments.
inference or reasoning, and in proceeding by direct self-perception, or autopsy. "It is unnecessary, for
present purposes, to ask whether this is not, after all, a third source of inference, i.e., an inference from
DECISION
'Q: And when you were all signing this Exhibit 'B' and Exhibit 'B-1',
Exhibit 'B' and 'B-1' which is the testament was passed
around all of you so that each of you will sign consecutively?
PUNO, J p:
'A: Yes, sir.
This is a petition for review by certiorari of the Decision, dated March 27, 1990, of the Court of
'Q: Who was the first to sign?
Appeals 1 in CA-G.R. CV No. 19071, disallowing probate of the Last Will and Codicil executed by Calibia
'A: Calibia Lingdan Bulanglang.
Lingdan Bulanglang, who died on March 20, 1976.
'Q: After Calibia Lingdan Bulanglang was made to sign I withdraw
The records show that decedent left behind nine thousand pesos (P9,000.00) worth of property. She also
left a Last Will and Testament, dated October 30, 1972, and a Codicil thereto, dated July 24, 1973. Both
the question. How did Calibia Lingdan Bulanglang sign the

last will and testament?
documents contained the thumbmarks of decedent. They were also signed by three (3) attesting
witnesses each, and acknowledged before Tomas A. Tolete, then the Municipal Judge and Notary Public
Ex-Officio of Bauko, Mt. Province.
'A: She asked Judge Tolete the place where she will affix her
thumbmark so Judge Tolete directed her hand or her thumb
to her name.
Nicasio Calde, the executor named in the will, filed a Petition for its allowance before the RTC of Bontoc,
'Q: After she signed, who was the second to sign allegedly all of you
Mt. Province, Br. 36. 2 He died during the pendency of the proceedings, and was duly substituted by
there present?
petitioner. Private respondents, relatives of decedent, opposed the Petition filed by Calde, on the
following grounds: that the will and codicil were written in Ilocano, a dialect that decedent did not know;
'A: Jose Becyagen.
that decedent was mentally incapacitated to execute the two documents because of her advanced age,
'Q: With what did Jose Becyagen sign the testament, Exhibit 'B' and 'B-
illness and deafness; that decedent's thumbmarks were procured through fraud and undue influence;
and that the codicil was not executed in accordance with law. cdrep
On June 23, 1988, the trial court rendered judgment on the case, approving and allowing decedent's will
and its codicil. The decision was appealed to and reversed by the respondent Court of Appeals. It held:
". . . (T)he will and codicil could pass the safeguards under Article 805 of the New
Civil Code but for one crucial factor of discrepancy in the color of ink when the
instrumental witnesses affixed their respective signatures. When subjected to
cross-examination, Codcodio Nacnas as witness testified as follows:
'Q: And all of you signed on the same table?
'A: Yes, sir.
1'?
'A: Ballpen.
'Q: And after Jose Becyagen signed his name with the ballpen, who
was the next to sign? LLjur
'A: Me, sir.
'Q: And Jose Becyagen passed you the paper and the ballpen, Exhibit
'B' and 'B-1' plus the ballpen which used to sign so that you
could sign your name, is that correct?
'A: Yes, sir.
'Q: And then after you signed, who was the next to sign the document,
Exhibit 'B' and 'B-1'?
'A: Hilario Coto-ong.
Codicil. Verily, if the witnesses and testatrix used the same ballpen, then their
signatures would have been in only one color, not in various ones as shown in the
documents. Moreover, the signatures, in different colors as they are, appear to be
of different broadness, some being finer than the others, indicating that, contrary
'Q: So you passed also to Hilario Coto-ong the same Exhibit 'B' and 'Bto what the testamentary witnesses declared on the witness stand, not only one
1' and the ballpen so that he could sign his name as witness
ballpen was used, and, therefore, showing that the documents were not signed by
to the document, is it not?
the testatrix and instrumental witnesses in the presence of one another. . . ."
'A: Yes, sir.
'Q: And that is the truth and you swear that to be the truth before the
Honorable Court?
ATTY. DALOG:
(Rollo, pp. 44-46. Citations omitted.) LexLib

Petitioner unsuccessfully moved for reconsideration of the impugned Decision. His motion was
denied by the respondent court in its Order, dated May 24, 1990.
Thus, this appeal by petitioner who now puts in issue the correctness of the respondent court's
He already testified under oath, Your Honor.
conclusion that both decedent's will and codicil were not subscribed by the witnesses in the presence of
COURT:
the testator and of one another, contrary to the requirements of Article 805 of the Civil Code. He
Witness may answer.

'A: Yes, sir.
contends that:
"1. THE HONORABLE COURT OF APPEALS HAS DECIDED A QUESTION OF
SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW OR WITH THE
"For his part, Obanan Ticangan likewise admitted during cross-examination in

APPLICABLE DECISION OF THE SUPREME COURT BY CONCLUDING
regard to the codicil that:
BASED ON PURE SPECULATION OR SURMISES AND WITHOUT REGARD TO
"Q: When you signed Exhibit 'D' and 'D-1', did you all sign with the
same ballpen?
'A: One.'
"Such admissions from instrumental witnesses are indeed significant since they
THE TESTIMONY OF JUDGE TOLETE WHICH IS AN EVIDENCE OF

SUBSTANCE THAT THE WILL AND THE CODICIL OF THE LATE CALIBIA
LINGDAN BULANGLANG WERE SIGNED BY HER AND BY HER
INSTRUMENTAL WITNESSES ON DIFFERENT OCCASIONS;
point to no other conclusion than that the documents were not signed by them in
their presence but on different occasions since the same ballpen used by them
supposedly in succession could not have produced a different color from blue to
black and from black to blue. In fact, the attestation clause followed the same
pattern. The absurd sequence was repeated when they signed the codicil, for
which reason, We have no other alternative but to disallow the Last Will and
"2. THE HONORABLE COURT OF APPEALS HAS DECIDED A QUESTION OF

SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW OR WITH THE
APPLICABLE DECISIONS OF THE SUPREME COURT BY DISREGARDING
THE PROBATIVE VALUE OF THE ATTESTATION CLAUSES OF THE LAST
WILL AND TESTAMENT AND THE CODICIL OF THE LATE CALIBIA LINGDAN
was not explained by petitioner. Nobody of his six (6) witnesses testified that two pens were used by the
BULANGLANG."
signatories on the two documents. In fact, two (2) of petitioner's witnesses even testified that only one (1)
The petition must fail.

The question in the case at bench is one of fact: whether or not, based on the evidence submitted,
respondent appellate court erred in concluding that both decedent's Last Will and Testament, and its
Codicil were subscribed by the instrumental witnesses on separate occasions. As a general rule, factual
ballpen was used in signing the two testamentary documents.

It is accepted that there are three sources from which a tribunal may properly acquire knowledge for
making its decisions, namely: circumstantial evidence, testimonial evidence, and real evidence or
autoptic proference. Wigmore explains these sources as follows:
findings of the Court of Appeals are considered final and conclusive, and cannot be reviewed on appeal
"If, for example, it is desired to ascertain whether the accused has lost his right
to this court. In the present instance, however, there is reason to make an exception to that rule, since
hand and wears an iron hook in place of it, one source of belief on the subject
the finding of the respondent court is contrary to that of the trial court, viz.:
would be the testimony of a witness who had seen the arm; in believing this
". . . (Private respondents) pointed out however, that the assertions of petitioner's
witnesses are rife with contradictions, particularly the fact that the latter's
signatures on the documents in issue appear to have been written in ballpens of
different colors contrary to the statements of said witnesses that all of them
signed with only one ballpen. The implication is that the subscribing witnesses to
the Will and Codicil, and the testatrix did not simultaneously sign each of the
documents in one sitting but did it piecemeal a violation of Art. 805 of the
testimonial evidence, there is an inference from the human assertion to the fact
asserted. A second source of belief would be the mark left on some substance
grasped or carried by the accused; in believing this circumstantial evidence, there
is an inference from the circumstance to the thing producing it. A third source of
belief remains, namely, the inspection by the tribunal of the accused's arm. This
source differs from the other two in committing any step of conscious inference or
reasoning, and in proceeding by direct self-perception, or autopsy.
Code. This conclusion of the (private respondents) is purely circumstantial. From
"It is unnecessary, for present purposes, to ask whether this is not, after all, a third
this particular set of facts, numerous inferences without limits can be drawn
source of inference, i.e., an inference from the impressions or perceptions of the
depending on which side of the fence one is on. For instance, considering the
tribunal to the objective existence of the thing perceived. The law does not need
time interval that elapsed between the making of the Will and Codicil, and up to
and does not attempt to consider theories of psychology as to the subjectivity of
the filing of the petition for probate, the possibility is not remote that one or two of
knowledge or the mediateness of perception. It assumes the objectivity of
the attesting witnesses may have forgotten certain details that transpired when
external nature; and, for the purposes of judicial investigation, a thing perceived
they attested the documents in question. . . ." (Rollo, pp. 36-37.) LLphil
by the tribunal as existing does exist.
A review of the facts and circumstances upon which respondent Court of Appeals based its impugned
"There are indeed genuine cases of inference by the tribunal from things
finding, however, fails to convince us that the testamentary documents in question were subscribed and
perceived to other things unperceived as, for example, from a person's size,
attested by the instrumental witnesses during a single occasion.
complexion, and features, to his age; these cases of a real use of inference can
As sharply noted by respondent appellate court, the signatures of some attesting witnesses in
decedent's will and its codicil were written in blue ink, while the others were in black. This discrepancy
be later more fully distinguished . . . . But we are here concerned with nothing
more than matters directly perceived for example, that a person is of small
height or is of dark complexion; as to such matters, the perception by the tribunal

that the person is small or large, or that he has a dark or light complexion, is a
mode of acquiring belief which is independent of inference from either testimonial
or circumstantial evidence. It is the tribunal's self-perception, or autopsy, of the
thing itself.
"From the point of view of the litigant party furnishing this source of belief, it may
be termed Autoptic Proference." 3 (Citations omitted.)
In the case at bench, the autoptic proference contradicts the testimonial evidence produced by petitioner.
The will and its codicil, upon inspection by the respondent court, show in black and white or more
accurately, in black and blue that more than one pen was used by the signatories thereto. Thus, it was
not erroneous nor baseless for respondent court to disbelieve petitioner's claim that both testamentary
documents in question were subscribed to in accordance with the provisions ofArt. 805 of the Civil Code.
Neither did respondent court err when it did not accord great weight to the testimony of Judge Tomas A.
Tolete. It is true that his testimony contains a narration of how the two testamentary documents were
subscribed and attested to, starting from decedent's thumbmarking thereof, to the alleged signing of the
instrumental witnesses thereto in consecutive order. Nonetheless, nowhere in Judge Tolete's testimony
is there any kind of explanation for the different-colored signatures on the testaments. LLpr
IN VIEW WHEREOF, the instant Petition for Review is DENIED. The Decision of respondent Court of
Appeals, dated March 27, 1988, in CA-G.R. CV No. 19071 disallowing the Last Will and Testament, and
the Codicil thereto, of the decedent Calibia Lingdan Bulanglang is AFFIRMED IN TOTO. Costs against
petitioner.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Mendoza, JJ , concur.
||| (Calde v. Court of Appeals, G.R. No. 93980, [June 27, 1994])
SECOND DIVISION
3). In the said will, the appellant Maria Ventura, although an illegitimate child, was named and appointed
by the testator to be the executrix of his will and the administratrix of his estate (Record on Appeal, p. 7).
[G.R. No. L-26306. April 27, 1988.]

In due course, said will was admitted to probate on January 14, 1954 (Record on Appeal, pp. 8-10).
TESTATE ESTATE OF THE LATE GREGORIO VENTURA: MARIA
VENTURA, executrix-appellant, MIGUEL VENTURA and JUANA CARDONA, heirsappellants, vs.GREGORIA VENTURA and HUSBAND, EXEQUIEL VICTORIO,
MERCEDES VENTURA and HER HUSBAND, PEDRO D. CORPUZ, oppositors-
Gregorio Ventura died on September 26, 1955. On October 10, 1955, the appellant Maria Ventura filed a
motion for her appointment as executrix and for the issuance of letters testamentary in her favor (Record
on Appeal, pp. 10-11). On October 17, 1955, Maria Ventura was appointed executrix and the
corresponding letters testamentary was issued in her favor (Record on Appeal, pp. 11-12).
On or about July 26, 1956, Maria Ventura submitted an inventory of the estate of Gregorio Ventura
appellees.
(Record on Appeal, pp. 12-20).
DECISION
On June 17, 1960, she filed her accounts of administration for the years 1955 to 1960, inclusive. (Record
on Appeal, pp. 20-27). Said account of administration was opposed by the spouses Mercedes Ventura
and Pedro Corpuz on July 25, 1960 (Record on Appeal, pp. 27-33) and by Exequiel Victorio and
PARAS, J p:
Gregoria Ventura on August 5, 1963 (Record on Appeal, pp. 46-50). Both oppositions assailed the
veracity of the report as not reflecting the true income of the estate and the expenses which allegedly are
This is an appeal from the order of the Court of First Instance of Nueva Ecija, Guimba, Branch V in
not administration expenses. But on January 25, 1961, Maria Ventura filed a motion to hold in abeyance
Special Proceedings No. 812, Testate of the late Gregorio Ventura, dated October 5, 1965, removing the
the approval of the accounts of administration or to have their approval without the opposition of the
appellant Maria Ventura as executrix and administratrix of the estate of the late Gregorio Ventura, and in
spouses Mercedes Ventura and Pedro Corpuz and Gregoria Ventura and Exequiel Victorio on the
her place appointing the appellees Mercedes Ventura and Gregoria Ventura as joint administratrices of
ground that the question of the paternity of Mercedes Ventura and Gregoria Ventura is still pending final
the estate. (Record on Appeal, pp. 120-131.) LLphil
determination before the Supreme Court and that should they be adjudged the adulterous children of
Appellant Maria Ventura is the illegitimate daughter of the deceased Gregorio Ventura while Miguel
testator, as claimed, they are not entitled to inherit nor to oppose the approval of the accounts of
Ventura and Juana Cardona are his son and surviving spouse who are also the brother and mother of
administration (Record on Appeals, pp. 33-36). Spouses Mercedes Ventura and Pedro Corpuz filed on
Maria Ventura. On the other hand, appellees Mercedes and Gregoria Ventura are the deceased's
February 2, 1961 their opposition to the motion to hold in abeyance the approval of the accounts of
legitimate children with his former wife, the late Paulina Simpliciano (Record on Appeal, p. 122) but the
administration on the ground that Mercedes and Gregoria Ventura had already been declared by the
paternity of appellees was denied by the deceased in his will (Record on Appeal, p. 4).
Court of First Instance in Civil Cases No. 1064 and 1476, which cases are supposed to be pending
On December 14, 1953, Gregorio Ventura filed a petition for the probate of his will which did not include
the appellees and the petition was docketed as Special Proceedings No. 812 (Record on Appeal, pp. 1-
before the Supreme Court, as the legitimate children of Gregorio Ventura, hence, they have reason to
protect their interest (Record on Appeal, pp. 36-39). On February 9, 1961, the motion to hold in
abeyance the approval of the accounts was denied (Record on Appeal, pp. 39-40).
It appears that on July 12, 1963, the Court set the case for pre-trial on August 7, 1963 in connection with
supplemental motion to remove the executrix be denied or held in abeyance until after the status of
the accounts of the executrix Maria Ventura dated June 17, 1960 and the Motion to Annul Provision of
Mercedes and Gregoria Ventura as heirs of the testator is finally decided (Record on Appeal, pp. 85-
Will dated July 14, 1962 of Mercedes Ventura (Record on Appeal, p. 45).
101). On June 3, 1965, the Court, finding that the estate taxes have not been paid, ordered the
On October 22, 1963, four motions were filed by Mercedes Ventura and Gregoria Ventura, namely: (1)
motion to remove the executrix Maria Ventura which was supplemented on April 27, 1965; (2) motion to
require her to deposit the harvest of palay of the property under administration in a bonded warehouse;
(3) motion to render an accounting of the proceeds and expenses of Administration; and (4) motion to
require her to include in the inventory of the estate certain excluded properties (Record on Appeal, pp.
50-53; 71). An opposition to said motions was filed by the heirs Juana Cardona and Miguel Ventura and
by the executrix Maria Ventura herself (Record on Appeal, pp. 56-61; 61-70 and 71).
administratrix to pay the same within thirty (30) days. On September 13, 1965, the lower court denied the
suspension of the proceedings and deferred the resolution of the joint motion to remove executrix Maria
Ventura until after the examination of the physical fitness of said executrix to undertake her duties as
such. Also, it ordered the deposit of all palay to be harvested in the next agricultural year and
subsequent years to be deposited in a bonded warehouse to be selected by the Court and the palay so
deposited shall not be withdrawn without the express permission of the Court (Record on Appeal, pp.
103-105). On September 21, 1965, spouses Exequiel Victorio and Gregoria Ventura filed their opposition
to the accounts of administration of Maria Ventura dated May 17, 1965, while that of spouses Mercedes
On motion of counsel for Exequiel Victorio and Gregoria Ventura the joint motions to require an Up-todate Accounting and to Require Executrix Ventura to Include Excluded Properties in Her Inventory were
ordered withdrawn (Order dated February 2, 1965, Record on Appeal, p. 73). The other two motions
Ventura and Pedro Corpuz was filed on September 29, 1965, both oppositions alleging among others
that said accounts do not reflect the true and actual income of the estate and that the expenses reported
thereunder are fake, exorbitant and speculative (Record on Appeal, pp. 106-120).
were however set for hearing.

On October 5, 1965, the court a quo, finding that the executrix Maria Ventura has squandered the funds
The grounds of aforesaid joint motions to remove the executrix Maria Ventura are: (1) that she is grossly
incompetent; (2) that she has maliciously and purposely concealed certain properties of the estate in the
inventory; (3) that she is merely an illegitimate daughter who can have no harmonious relations with the
of the estate, was inefficient and incompetent, has failed to comply with the orders of the Court in the
matter of presenting up-to-date statements of accounts and neglected to pay the real estate taxes of the
estate, rendered the questioned decision, the dispositive portion of which reads:
appellees; (4) that the executrix has neglected to render her accounts and failed to comply with the
Order of the Court of December 12, 1963, requiring her to file her accounts of administration for the
years 1961 to 1963 (Record on Appeal, pp. 70 and 75-76) and the Order of June 11, 1964, reiterating
aforesaid Order of December 12, 1963 (Record on Appeal, p. 76); and (5) that she is with permanent
physical defect hindering her from efficiently performing her duties as an executrix (Record on Appeal,
pp. 50-53 and 74-79). LexLib
On May 17, 1965, the executrix Maria Ventura finally submitted her accounts of administration covering
the period 1961 to 1965 (Record on Appeal, pp. 79-84) which were again opposed by the spouses
Exequiel Victorio and Gregoria Ventura on September 21, 1965 and by the spouses Mercedes Ventura
and Pedro Corpuz on September 29, 1965 (Record on Appeal, pp. 106-120). On June 2, 1965, the
executrix filed her supplemental opposition to the aforesaid four motions, and prayed that the joint
"WHEREFORE, Maria Ventura is hereby removed as executrix and administratrix

of the estate and in her place Mercedes Ventura and Gregoria Ventura are hereby
appointed joint administratrices of the estate upon filing by each of them of a bond
of P7,000.00. Let letters of administration be issued to Mercedes Ventura and
Gregoria Ventura upon their qualification.
"IT IS SO ORDERED."
(Record on Appeal, pp. 120-131).
Hence, this appeal.
In their brief, appellants Maria Ventura and spouses Juana Cardona and Miguel Ventura assign the
The lower court erred in finding that the devises and bequests in favor of Maria
following errors allegedly committed by the probate court:
Ventura and Miguel Ventura as specified in paragraph 8 of the last Will and
Testament of the late Gregorio Ventura have ipso facto been annulled.
"ASSIGNMENT OF ERRORS
VII
I
"The lower court erred in ordering the removal of Maria Ventura as executrix and
administratrix of the will and estate of the deceased Gregorio Ventura without
giving her full opportunity to be heard and to present all her evidence.
The lower court erred in allowing the appellees Mercedes Ventura and Gregoria
Ventura to intervene in the hearing of the accounts of administration submitted by
the executrix Maria Ventura and/or in not suspending the hearing of the said
accounts until the said appellees have finally established their status as legitimate
II
children of the deceased Gregorio Ventura. cdll
The lower court erred in finding that the executrix Maria Ventura had squandered
VIII
and dissipated the funds of the estate under her administration.

The lower court erred in appointing (even without a proper petition for
III
appointment and much less a hearing on the appointment of) the appellees
The lower court erred in finding that the executrix Maria Ventura was inefficient
Mercedes Ventura and Gregoria Ventura who have an adverse interest as joint
and incompetent.
administratrices of the estate of the deceased Gregorio Ventura.

IX
IV
That, considering the circumstances surrounding the case, the lower court erred
The lower court erred in not appointing the surviving widow, Juana Cardona, or
in finding that the failure of Maria Ventura to submit her periodical accounting had
Miguel Ventura, as administratrix of the estate of Gregorio Ventura in case the
justified her removal as executrix.
removal of Maria Ventura as executrix and administratrix thereof is legally

justified.
V
X
The lower court erred in considering as an established fact that the appellees
Mercedes Ventura and Gregoria Ventura are the legitimate daughters of the
Considering that there are in fact two (2) factions representing opposite interests
deceased Gregorio Ventura.
in the estate, the lower court erred in not appointing Juana Cardona, or Miguel
Ventura, as one of the two (2) administratrices." (Joint Brief for the Appellants, pp.
1-4)
VI
On July 19, 1967, Atty. Arturo Tolentino (representing appellees Mercedes Ventura and Pedro Corpuz)
and Atty. Jose J. Francisco (representing Gregoria and Exequiel Victorio), having failed to submit their
respective briefs within the period for the purpose, which expired on July 2 and May 29, 1967,
the complaint;ordering the defendant Maria Ventura, as administratrix of the
respectively, the Supreme Court Resolved to consider this case submitted for decision WITHOUT SAID
estate of Gregorio Ventura to pay to Mercedes Ventura and Gregoria Ventura the
APPELLEES' BRIEF (Rollo, p. 152).
amount of P19,074.09 which shall be divided equally between Mercedes and
The crucial issue in this case is whether or not the removal of Maria Ventura as executrix is legally
justified. This issue has, however, become moot and academic in view of the decision of this Court in
related cases.
Gregoria Ventura; declaring that Mercedes Ventura and Pedro Corpuz are the
exclusive owners of the properties described in the certificates of Title Nos. T1102, T-1212, T-1213, T-1214, Exhibits 32, 33, 34 and 35, respectively; ordering
Mercedes Ventura and Pedro D. Corpuz to pay to the conjugal partnership of
At the outset, it is worthy to note that aside from the instant special proceedings, there are two other civil
cases involving the estate of the deceased Gregorio Ventura, namely, Civil Cases Nos. 1064 and 1476.
Civil Case No. 1064 was filed on December 2, 1952 by herein appellee Gregoria Ventura in the Court of
First Instance of Nueva Ecija, Branch I, against the other appellees herein Mercedes Ventura and their
father, Gregorio Ventura. Later Mercedes Ventura joined cause with Gregoria Ventura. (Record on
Appeal, p. 95). Gregoria and Mercedes Ventura claimed that they are the legitimate children of Gregorio
Ventura and his wife Paulina Simpliciano, who died in 1943, and asked that one-half of the properties
described in the complaint be declared as the share of their mother in the conjugal partnership, with
them as the only forced heirs of their mother Paulina (Joint Brief for the Appellants, pp. 53-68).
Subsequently, Civil Case No. 1476 was filed by Alipio, Eufracia and Juliana, all surnamed Simpliciano,
against Gregorio Ventura and the two sisters, Mercedes and Gregoria Ventura, before the Court of First
Instance of Nueva Ecija, Branch I. They alleged that as the only children of Modesto Simpliciano, sole
brother of Paulina Simpliciano, they, instead of Mercedes and Gregoria Ventura, whom they claimed are
adulterous children of Paulina with another man, Teodoro Ventura and as such are not entitled to inherit
Gregorio Ventura and Paulina Simpliciano the sum of P100,000.00, one-half of

which shall pertain to the estate of Gregorio Ventura and the other half to the
estate of Paulina Simpliciano to whom Mercedes and Gregoria Ventura have
succeeded, to be divided between Mercedes and Gregoria in equal parts; and
dismissing Civil Case No. 1476. The parties are urged to arrive at an amicable
partition of the properties herein adjudicated within twenty days from receipt of
this decision. Upon their failure to do so, the Court shall appoint commissioners to
divide the properties in accordance with the terms of the decision. Without
pronouncements as to costs." (Emphasis supplied). (Joint Brief for the Appellants,
pp. 37-38.)
Thereafter, on July 14, 1962, Mercedes Ventura filed a motion to annul the provisions of the will of the
deceased Gregorio Ventura in Special Proceedings No. 812, which motion was opposed by Miguel
Ventura and Juana Cardona and later by Maria Ventura. They claimed that the decision dated November
4, 1959 in Civil Cases Nos. 1064 and 1476 was not yet final. LexLib
from her, are the ones who should inherit the share of Paulina Simpliciano in the conjugal partnership
with Gregorio Ventura (Joint Brief For The Appellants, pp. 69-79).
On February 26, 1964, the trial court annulled the institution of the heirs in the probated will of Gregorio
Ventura. The motion for reconsideration of the aforesaid order filed by executrix Maria Ventura was
It appears that on November 4, 1959, after a joint hearing of Civil Cases Nos. 1064 and 1476, the lower
denied on June 11, 1964.
court rendered its judgment, the dispositive portion of which reads as follows:
Accordingly, Maria Ventura appealed the February 26, 1964 and June 11, 1964 orders of the probate
"WHEREFORE, judgment is hereby rendered declaring Mercedes Ventura and
Gregoria Ventura to be the legitimate daughters of Paulina Simpliciano and
Gregorio Ventura; declaring that as such legitimate daughters of Paulina
Simpliciano they are entitled to 1/2 of the properties described in paragraph six of
court in Special Proceedings No. 812 before the Supreme Court and was docketed as G.R. No. L-23878.
On May 27, 1977, this Court, through then Associate Justice Antonio P. Barredo, ruled, as follows:
"And so, acting on appellees' motion to dismiss appeal, it is Our considered
"When and to whom letters of administration granted. If no executor is named
opinion that the decision in civil Cases Nos. 1064 and 1476 declaring that
in the will, or the executor or executors are incompetent, refuse the trust, or fail to
appellees Mercedes and Gregoria Ventura are the legitimate children of the
give bond, or a person dies intestate, administration shall be granted:
deceased Gregorio Ventura and his wife, Paulina Simpliciano, and as such are
entitled to the annulment of the institution of heirs made in the probated will of
said deceased became final and executory upon the finality of the order,
(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;"
approving the partition directed in the decision in question. We need not indulge
xxx xxx xxx
in any discussion as to whether or not, as of the time the orders here in question
were issued by the trial court said decision had the nature of an interlocutory
In the case at bar, the surviving spouse of the deceased Gregorio Ventura is Juana Cardona while the
order only. To be sure, in the case of Miranda, aforementioned, the opinion of the
next of kin are: Mercedes and Gregoria Ventura and Maria and Miguel Ventura. The "next of kin" has
majority of the Court may well be invoked against appellant's pose. In any event,
been defined as those persons who are entitled under the statute of distribution to the decedent's
even if the Court were minded to modify again Miranda and go back to
property (Cooper vs. Cooper, 43 Ind. A 620, 88 NE 341). It is generally said that "the nearest of kin,
Fuentebella and Zaldariaga, and it is not, as of now there can be no
whose interest in the estate is more preponderant, is preferred in the choice of administrator. 'Among
question that the approval by the trial court in Civil Cases Nos. 1064 and 1476 of
members of a class the strongest ground for preference is the amount or preponderance of interest. As
the partition report of the commissioners appointed for the purpose, one of whom,
between next of kin, the nearest of kin is to be preferred.'" (Cabanas, et al. vs. Enage, et al., 40 Off. Gaz.
Emmanuel Mariano, is the husband of appellant, put a definite end to those
12 Suppl. 227; citing 12 Am. Jur. Sec, 77, p. 416, cited in Francisco Vicente J., The Revised Rules of
cases, leaving nothing else to be done in the trial court. That order of approval is
Court in the Philippines, Vol. V-B, 1970 Ed., p. 23).
an appealable one, and inasmuch as no appeal has been taken from the same, it
is beyond dispute that the decision in controversy has already become final and
executory in all respects. Hence, the case at bar has become moot and
academic. (Ventura vs. Ventura, 77 SCRA 159, May 27, 1977)
As decided by the lower court and sustained by the Supreme Court, Mercedes and Gregoria Ventura are
the legitimate children of Gregorio Ventura and his wife, the late Paulina Simpliciano. Therefore, as the
nearest of kin of Gregorio Ventura they are entitled to preference over the illegitimate children of
Gregorio Ventura, namely: Maria and Miguel Ventura. Hence, under the aforestated preference provided
Under Article 854 of the Civil Code, "the preterition or omission of one, some, or all of the compulsory
in Section 6 of Rule 78, the person or persons to be appointed administrator are Juana Cardona, as the
heirs in the direct line, whether living at the time of the execution of the will or born after the death of the
surviving spouse, or Mercedes and Gregoria Ventura as nearest of kin, or Juana Cardona and Mercedes
testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are
and Gregoria Ventura in the discretion of the Court, in order to represent both interests.
not inofficious," and as a result, intestacy follows, thereby rendering the previous appointment of Maria
Ventura as executrix moot and academic. This would now necessitate the appointment of another
administrator, under the following provision:
PREMISES CONSIDERED, the appeal interposed by appellants Maria Ventura, Juana Cardona and
Miguel Ventura is hereby DISMISSED.
Section 6, Rule 78 of the Rules of Court:

SO ORDERED.
Padilla and Sarmiento, JJ., concur.

Yap, C.J., I join the dissenting opinion of Justice Herrera.
Separate Opinion
MELENCIO-HERRERA, J., dissenting:
Consistent with my "concurrence in the result" in Acain vs. IAC, et als., G.R. No. 72706, October 27,
1987, preterition results in total intestacy if it was mistakenly made or through inadvertence. In this case
there was no mistake nor oversight whatsoever. The testator himself sought the probate of his Will
during his lifetime wherein he not only excluded his "forced heirs" but even denied paternity. prLL
Under the circumstances, the omission being obviously intentional, the effect is a defective
disinheritance covered by Article 918 of the Civil Code under which the institution of heir is not wholly
void but only in so far as it prejudices the legitimes of the persons disinherited. The nullity is partial unlike
in true preterition where the nullity is total.
This conclusion further finds support in the prevailing spirit in the codal provisions on succession, which
is to make the intention of the testator prevail (e.g., Articles 783, 790, 848, 852, 861, Civil Code).
||| (Testate Estate of Ventura v. Ventura, G.R. No. L-26306, [April 27, 1988], 243
PHIL 952-963)
EN BANC
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)
[G.R. No. L-24365. June 30, 1966.]

On October 29, 1964, the Court of First Instance of Davao issued an order approving the project of
IN THE MATTER OF THE INTESTATE ESTATE OF EDWARD E.
CHRISTENSEN, deceased. ADOLFO C. AZNAR, executor-appellee, vs. MARIA
LUCY CHRISTENSEN DUNCAN, oppositor-appellant. MARIA HELEN
CHRISTENSEN, oppositor-appellee.
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
J. Salonga and L.M. Abellera for oppositor-appellee.
as if the deceased had died intestate, saving only the legacies left in favor of certain other persons,
Carlos Dominguez, Jr. for executor-appellee.
which legacies have been duly approved by the lower court and distributed to the legatees.
M.R. Sotelo for appellant.
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
DECISION
necessary to cover the legitimate of Helen Garcia, equivalent to 1/4 of the entire estate.
The will of Edward E. Christensen contains, among others, the following clauses which are pertinent to
MAKALINTAL, J p:
the issue in this case:
Edward E. Christensen, a citizen of California with domicile in the Philippines, died leaving a will
"3. I declare . . . that I have but ONE (1) child, named MARIA LUCY
executed on March 5, 1951. The will was admitted to probate by the Court of First Instance of Davao in
CHRISTENSEN (Now Mrs. Bernard Daney), who was born in the Philippines
its decision of February 28, 1954. In that same decision the court declared that Maria Helen Christensen
about twenty-eight years ago, who is now residing at No. 665 Rodger Young
Garcia (hereinafter referred to as Helen Garcia) was a natural child of the deceased. The declaration
Village, Los Angeles, California, U.S.A. "4. I further declare that I now have no
was appealed to this Court, and was affirmed in its decision of February 14, 1958 (G.R. No. L-11484)
living ascendants, and no descendants except my above-named daughter,
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
MARIA LUCY CHRISTENSEN DANEY.

xxx xxx xxx
"7. I give, devise, and bequeath unto MARIA HELEN CHRISTENSEN, now
married to Eduardo Garcia, about eighteen years of age and who,
notwithstanding the fact that she was baptized Christensen, is not in any way
U.S.A., share and share alike, the share of any of the three above named who
related to me, nor has she been at any time adopted by me, and who, from all
may predecease me, to go in equal parts to the descendants of the deceased;
information I have now resides in Egpit, Digos, Davao, Philippines, the sum of
and, provided further, that should my sister Mrs. Carol Louise C. Borton die before
THREE THOUSAND SIX HUNDRED PESOS (P3,600), Philippine Currency, the
my own decease, then, and in that event, the share of my estate devised to her
same to be deposited in trust for the said Maria Helen Christensen with the Davao
herein I give, devise and bequeath to her children, Elizabeth Borton de Trevio, of
Branch of the Philippine National Bank, and paid to her at the rate of One
Mexico City, Mexico; Barbara Borton Philips, of Bakersfield, California, U.S.A., or
Hundred Pesos (P100.00), Philippine Currency per month until the principal
to the heirs of any of them who may die before my own decease, share and share
thereof as well as any interest which may have accrued thereon, is exhausted.'
alike."
xxx xxx xxx

"12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said
MARIA LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney now residing, as
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:
aforesaid, at No. 665 Rodger Young Village, Los Angeles, California, U.S.A., all
"ART. 854. The preterition or omission of one, some, or all of the compulsory heirs
the income from the rest, remainder, and residue of my property and estate, real,
in the direct line, whether living at the time of the execution of the will or born after
personal and/or mixed, of whatsoever kind or character, and wheresoever
the death of the testator, shall annul the institution of heir; but the devises and
situated, of which I may be possessed at my death and which may have come to
legacies shall be valid insofar as they are not inofficious."
me from any source whatsoever, during her lifetime; Provided, however, that
should the said MARIA LUCY CHRISTENSEN DANEY at anytime prior to her
decease having living issue, then and in that event, the life interest herein given
shall terminate, and if so terminated, then I give, devise, and bequeath to my
daughter, the said MARIA LUCY CHRISTENSEN DANEY the rest, remainder and
residue of my property with the same force and effect as if I had originally so
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:
given, devised and bequeathed it to her; and provided, further, that should the
said MARIA LUCY CHRISTENSEN DANEY die without living issue, then, and in
that event, I give, devise and bequeath all the rest, remainder and residue of my
property, one-half (1/2) to my well-beloved sister, Mrs. CARRIE LOUISE C.
BORTON, now residing at No. 2124, Twentieth Street, Bakersfield, California,
U.S.A., and one-half (1/2) to the children of my deceased brother, JOSEPH C.
"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."
CHRISTENSEN, namely: Mrs. Carol F. Ruggaver, of Los Angeles, California,
Thus, according to appellant, under both Articles 906 and 918, Helen Garcia is entitled only to her
U.S.A., and Joseph Raymond Christensen, of Manhattan Beach, California,
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.
legitima del heredero forzoso preterido, prescindiendo absoluta y totalmente de el
Commenting on Article 815, Manresa explains:
y no mencionandole en ninguna de sus disposiciones testamentarias, o no
"Como dice Goyena, en el caso de pretericion puede presumirse ignorancia o

falta de memoria en el testador; en el de dejar algo al heredero forzoso, no. Este
no se encuentra privado totalmente de su legitima: ha recibido por cualquier titulo
una porcion de los bienes hereditarios, porcion que no alcanza a completar la
legitima,pero que influeye poderosamente en el animo del legislador para
decidirle a adoptar una solucion bien diferente de la sealada para el caso de
pretericion."
instituyendole en parte alguna de la herencia, ni por titulo de heredero ni por el

de legatar o aunque le mencionara o nombrara sin dejarle mas o menos bienes.
Si le dejara algunos, por pocos que sean e insuficientes para cubrir su
legitima, ya no seria caso depretericion, sino de complemento de aquella. El
primer supuesto o de pretericion se regula por el articulo 814, y produce accion
de nulidad de la institucion de heredero; y el segundo, o de complemento de
legitima por el 815 y solo origina la accion ad suplementum, para completar la
legitima." (Sanchez Roman, Tomo VI, Vol. 2, p. 1131.)
"El testador no ha olvidado por completo al heredero forzoso; le ha dejado

bienes; pero haciendo un claculo equivocado, ha repartido en favor de extraos o
en favor de otros legitimarios por via de legado, donacion o mejora mayor
Manresa defines preterition as the omission of the heir in the will, either by not naming him at all or, while
cantidad de la que la ley de consentia disponer. El heredero forzoso no puede
mentioning him as father, son, etc., by not instituting him as heir without disinheriting him expressly,
perder su legitima, pero tampoco puede pedir mas que la misma. De aqui su
nor assigning to him some part of the properties. Manresa continues:
derecho a reclamar solamente lo que le falta; al complemento de la porcion que

forzosamente la corresponde."
" . . . Dejar el testador por cualquier titulo, equivale a disponer en testamento por
"Se necesita, pues: (a) Que la omision se refiera a un heredero forzoso; (b) Que
la omision sea completa; que el heredero forzoso nada reciba en el testamento.
xxx xxx xxx
titulo de herencia, legado o mejora, y en favor de legitimarios, de alguna cantidad

o porcion de bienes menos que la legitima o igual a la misma. Tal sentido, que es
el mas proprio en al articulo 815, no pubna tampoco con la doctrina de la
ley. Cuando en el testamento se deja algo al heredero forzoso, la pretericion es
incompleta: es mas formularia que real. Cuando en el testamento nada se deja el
legitimario, hay verdadera pretericion." (6 Manresa, 7th Ed., 1951, p. 437.)
"B. Que la omision sea completa Esta condicion se deduce del mismo Articulo
814 y resulta conevidencia al relacionar esta articulo con el 815. El heredero
forzoso a quien el testador deja algo por cualquier titulo en su testamento, no se
halla propiamente omitido, pues se le nombra y se le reconoce participacion en
los bienes hereditarios. Podria discutirse en el Articulo 814 si era o no necesario
que se reconociese el derecho del heredero como tal heredero, pero el arrticulo
On the difference between preterition of a compulsory heir and the right to ask for completion of his
legitime, Sanchez Roman says:
"La desheredacion, como expresa, es siempre voluntaria; la pretericion puede
serlo, pero se presume involuntaria la omision en que consiste, en cuanto olvida
o no atiende el testador en su testamento a la satisfaccion del derecho a la
815 desvanece esta duda. Aquel se ocupa de privacion completa o total, tacita;
este, de la privacion parcial. Los efectos deben ser y son, como veremos,
completamente distintos."
"La privacion de la legitima puede ser total o parcial.
"Privar totalmente de la legitima es negarla en absoluto al legitimario, despojarle
"RESPECTO DEL COMPLEMENTO DE LA LEGITIMA. Se inspira el Codigo
de ella por completo. A este caso se refiere el articulo 814. Privar parcialmente de
en esta materia en la doctrina clasica del Derecho romano y patrio (2); pero con
la legitima, es menguarla o reducirla, dejar al legitimario una porcion menor que
alguna racional modificacion. Concedian aquellos precedentes legales al
la que le corresponde. A este caso se refiere el articulo 815. El 813 sienta, pues,
heredero forzoso, a quien no se le dejaba por titulo de tal el completo de su
una regla general, y las consecuencias del que brantamiento de esta regla se
legitima, la accion para invalidar la institucion hecha en el testamento y reclamar
determina en los articulos 814 y 815." (6 Manresa p. 418.)
y obtener aquella mediante el ejercicio de la querella de inoficioso, y aun cuando
Again Sanchez Roman:
favorecido como donatorio, por otro titulo que fuera el de heredero, sino al honor
de que se le privaba no dandole este caracter, y solo cuando era instituido
"QUE LA OMISION SEA TOTAL. Aunque el articulo 814 no consigna de modo

expreso esta circunstancia de que la pretericion o falta de mencion e instituticion
o disposicion testamentaria a su favor, sea total, completa y absoluta, asi se
deduce de no hacer distinion o salvedad alguna empleandola en terminos
heredero en parte o cantidad inferior a lo que le correspondiera por legitima, era

cuando bastaba el ejercicio de la accion ad suplementum para completarla, sin
necesidad de anular las otras instituciones de heredero o demas disposiciones
contenidas en el testamento.
generales; pero sirve a confirmarlo de un modo indudable el siguiente articulo

815, al decir que el heredero forzoso a quien el testador haya dejado, por
cualquier titulo, menos de la legitima que la corresponda, podria pedir el
complemento de la misma, lo cual ya no son el caso ni los efectos de la
pretericion, que anula la institucion, sino simplemente los del suplemento
necesario para cubrir su legitima." (Sanchez Roman Tomo VI, Vol. 2.0 p.
1133.)
El Articulo 851 se aparta de este criterio estricto y se ajusta a la unica necesidad

que le inspira, cual es la de que se complete la legitima del heredero forzoso, a
quienpor cualquier titulo se haya dejado menos de lo que le corresponda, y se le
otorga tan solo el derecho de pedir el complemento de la misma sin necesidad de
que se anulen las disposiciones testamentarias, que se reduciran en lo que sean
inoficiosas, conforme al articulo 817, cuya interpretacion y sentido tienen ya en su
apoyo la sancion de la jurisprudencia (3); siendo condicion precisa que lo que se
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
hubiere dejado de menos de la legitima al heredero forzoso, lo haya sido en el

testamento o sea por disposicion del testador, segun lo revela el texto del
articulo, "el heredero forzoso a quien el testador haya dejado, etc., esto es, por
titulo de legado o donacionmortis causa en el testamento y no fuera de al."
(Sanchez Roman, Tomo VI, Vol. 2.0 p. 937.)"
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
While the classical view, pursuant to the Roman law, gave an affirmative answer to the question,
according to both Manresa (6 Manresa 7th 3rd. 436) and Sanchez Roman (Tomo VI, Vol. 2.0 p. 937),
that view was changed by Article 645 of the "Proyecto de Codigo de 1851," later on copied in Article 906
of our own Code. Sanchez Roman, in the citation given above, comments as follows:
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
will go to the other relatives of the testator named in the will. Without deciding this point, since it is not
completed. (6 Manresa, pp. 438, 441.)
one of the issues raised before us, we might call attention to the limitations imposed by law upon this
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
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.
Helen Garcia as his natural daughter, and limited her share to a legacy of P3,600.00. The fact that she
WHEREFORE, the order of the trial court dated October 29, 1964, approving the project of partition as
was subsequently declared judicially to possess such status is no reason to assume that had the judicial
submitted by the executor- appellee, is hereby set aside; and the case is remanded with instructions to
declaration come during his lifetime his subjective attitude towards her would have undergone any
partition as submitted by the executor-appellee, is hereby set aside; and the case is remanded with
change and that he would have willed his estate equally to her and to Lucy Duncan, who alone was
instructions to partition the hereditary estate anew as indicated in this decision, that is, by giving the
expressly recognized by him.
oppositor-appellee Maria Helen Christensen Garcia no more than the portion corresponding to her as
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
legitime, equivalent to one-fourth (1/4) of the hereditary estate, after deduction all debts and charges,
which shall not include those imposed in the will of the decedent, in accordance with Article 908 of the
Civil Code. Costs against appellees in this instance.
disinheriting the children by h is first marriage, he left nothing to them or, at least, some of them." In the
Concepcion, C.J., J.B.L. Reyes, Barrera, Dizon, Regala, J.P. Bengzon, Zaldivar and Sanchez,
case at bar the testator did not entirely omit oppositor-appellee Helen Garcia, but left her a legacy of
JJ., concur.
P3,600.00
The estate of the deceased Christensen upon his death consisted of 399 shares of stocks in the
RESOLUTION
Christensen Plantation Company and a certain amount in cash. One-fourth (1/4) of said estate
descended to Helen Garcia as her legitime. Since she became the owner of her share as of the moment
July 30, 1967
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
MAKALINTAL, J p:
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.
Oppositor-appellant has filed an ex-parte petition dated July 11, 1966, making reference to an alleged
oversight and asking for the corresponding correction, in the last paragraph before the dispositive part of
our decision, which reads as follows:
One point deserves to be here mentioned. although no reference to it has been made in the brief for
oppositor-appellant. 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
"One point deserves to be here mentioned, although no reference to it has been

made in the brief for oppositor-appellant. It is the institution of substituted 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
||| (In re: Aznar v. Duncan, G.R. No. L-24365, [June 30, 1966], 123 PHIL 1450-
decease she should have living issue, in which event she would inherit in full
1461)
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." (Decision, June 30, 1966, pages 14-15; emphasis
ours)
Oppositor-appellant points out that the matter of substitution of heirs was taken up and discussed in her
brief, particularly in pages 28 and 32 thereof. This is indeed quite true, but the reference to and
discussion of the rights of the substitute heirs (called American heirs in the brief) appears to be merely
for the purpose of refuting the theory advanced by appellees and not for the purpose of having the rights
of said heirs defined in so far as, under the terms of the will, they may affect the legitime of oppositorappellant. This point of course was not and could hardly have been squarely raised as an issue
inasmuch as the substitute heirs are not parties in this case. We have nevertheless called attention "to
the limitations imposed by law upon this kind of substitution," because in the brief for oppositor-appellant,
at page 45, she makes the conclusion "that the Last Will and Testament of Edward E. Christensen are
valid under Philippine Law and must be given full force and effect;" and to give them full force and effect
would precisely affect the legitime of oppositor-appellant.
WHEREFORE, the last paragraph before the dispositive part of our decision quoted above is amended
by eliminating the following phrase in the first sentence: "although no reference to it has been made in
the brief for oppositor-appellant."
Concepcion, C.J., J.B.L. Reyes, Barrera, Dizon, J.P. Bengzon, Zaldivar and Sanchez, JJ., concur.
Regala and Castro, JJ., took no part.
by a particular or special title. . . But again an institution of heirs cannot be taken

as a legacy," 25
The disputed order, we observe, declares the will in question "a complete nullity". Article 854 of the Civil
Code in turn merely nullifies "the institution of heir." Considering, however, that the will before us solely
provides for the institution of petitioner as universal heir, and nothing more, the result is the same. The
entire will is null.
Upon the view we take of this case, the order of November 8, 1963 under review is hereby affirmed. No
costs allowed. So ordered.
Concepcion, C.J., J.B.L. Reyes, Barrera, Dizon, Regala, Makalintal, J. P. Bengzon and Zaldivar,
JJ., concur.
||| (Nuguid v. Nuguid, G.R. No. L-23445, [June 23, 1966], 123 PHIL 1305-1317)
now stands, in an ejectment suit, the question of ownership may be provisionally ruled upon for the sole
City, Branch 134, in Civil Case No. 03-517, reversing the Decision of the Metropolitan Trial Court (MTC)
purpose of determining who is entitled to possession de facto. EScAID
of Makati City, Branch 63, in Civil Case No. 75717, is REINSTATED.
WHEREFORE, in view of the foregoing, the Decision of the Court of Appeals in CA-G.R. SP No. 91442
SO ORDERED.
dated June 27, 2006 is REVERSED and SET ASIDE. The Decision of the Regional Trial Court of Makati
Austria-Martinez, Chico-Nazario, Nachura and Reyes, JJ., concur.

||| (Rodriguez v. Rodriguez, G.R. No. 175720, [September 11, 2007], 559 PHIL 398-408)

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THIRD DIVISION

[G.R. No. 175720. September 11, 2007.]

CRESENCIANA TUBO RODRIGUEZ (now deceased), substituted by

SUSANA A. LLAGAS, petitioner, vs. EVANGELINE RODRIGUEZ, BELEN

RODRIGUEZ and BUENAVENTURA RODRIGUEZ, respondents.

WHEREFORE, the Complaint is DISMISSED. Plaintiff is ordered to pay attorney's

fees of P10,000.00 and the costs of suit in favor of defendants.

apartment A, respondent Buenaventura Rodriguez, apartment B, and respondent Belen Rodriguez,

THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR OF LAW AND

GRAVE ABUSE OF DISCRETION IN REVERSING AND SETTING ASIDE THE

DECISION OF THE REGIONAL TRIAL COURT AND REINSTATING THE

at Testamento should not also be considered. Thus:

DECISION OF THE METROPOLITAN TRIAL COURT DISMISSING

WHEREFORE, premises considered, the decision rendered by the Metropolitan

PETITIONER'S COMPLAINT FOR UNLAWFUL DETAINER. aTIEcA

the following errors:

registration thereof in petitioner's name. DHITSc

The petition has merit.

at Testamento of Juanito Rodriguez and the Partition Agreement. CTcSIA

[G.R. No. L-23445. June 23, 1966.]

NUGUID, petitioner-appellant, vs. FELIX

SALONGA NUGUID, oppositors-appellees.

3. ID.; ID.; PRETERITION DISTINGUISHED FROM DISINHERITANCE. Preterition "consists in the

Custodio O. Partade for petitioner-appellant.

Beltran, Beltran & Beltran for oppositors-appellees.

Estudios de Derecho Civil, 2nd edition, Volume 20, p. 1131.)

1. PROBATE OF WILL; COURT'S AREA OF INQUIRY LIMITED TO EXTRINSIC VALIDITY OF WILL;

2. SUCCESSION; PRETERITION; OMISSION OF NAMES OF FORCED HEIRS. The deceased left

separate from the nullified institution of heir.

oppositors moved to dismiss on the ground of absolute preterition.

On September 6, 1963, petitioner registered her opposition to the motion to dismiss.

all surnamed Nuguid.

annexed be issued to her.

illegally preterited and that in consequence the institution is void.

Reproduced hereunder is the will:

heredero ni se le deshereda expresamente, ni se le asigna parte alguna de los

bienes, resultando privado de un modo tacito de su derecho a legitima.

Se necesita, pues, a) Que la omision se refiera a un heredero forzoso.) b) Que la

omision sea completa; que el heredero forzoso nada reciba en el testamento. 5

to have on hand a clear-cut definition of the word annul:

N.J.S.A. 2:50 38 (now N.J.S.2A:34-25). Madden vs. Madden, 40 A.2d 611,

Code of Spain of 1889, which is similarly herein copied, thus

614, 136 N.J. Eq. 132." 7

"ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect;

in so far as they are not inofficious. . ."

nombra siquiera, o aun nombrandole como padre, hijo, etc., no se leinstituye

sino la suposicion de que el hecho o el acto no se ha realizado debiendo; por lo

tanto, procederse sobre tal base o supuesto, y consiguientemente, en un

testamento donde falte la institucion, es obligado llamar a los herederos forzosos

The same view is expressed by Snches Roman:

constituiria una interpretacion arbitraria, dentro del derecho positivo, reputar

"La consequencia de la anulacion o nulidad de la institucion de heredero por

pretericion de uno, varios o todos los forzosos en linea recta, es la apertura de la

contraria a sus terminos y a los principios que informan la testamentifaccion,

en favor de los herederos instituidos, cuya institucion se anula, porque asi lo

hay razon para convertir este juicio en regla de interpretacin, desvirtuando y

la pretericion el de que 'anulara la institucion de heredero'. . ." 11

anulando por este procedimiento lo que el legislador quiere establecer." 12

" . . . El art. 814, que preceptua en tales casos de pretericion la nulidad de la

instituted is reduced to the extent of said legitimes. 24

provisions contained in said articles concerning the reduction of inofficious

said forced heirs suffer from preterition.

legacies or betterments would be a surplusage because they would be absorbed