EN BANC
The probate court erred in not holding that Molo's
G.R. No. L-2538 September 21, 1951
Testate Estate of the Deceased MARIANO MOLO Y LEGASPI.
JUANA JUAN VDA. DE MOLO, petitioner-appellee,
vs.
LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants.
BAUTISTA ANGELO, J.:
This is an appeal from an order of the Court of First Instance of
Rizal admitting to probate the last will and testament of the
deceased Mariano Molo y Legaspi executed on August 17, 1918.
The oppositors-appellants brought the case on appeal to this
Court for the reason that the value of the properties involved
exceeds P50,000.
Mariano Molo y Legaspi died on January 24, 1941, in the
municipality of Pasay, province of Rizal, without leaving any
forced heir either in the descending or ascending line. He was
survived, however, by his wife, the herein petitioner Juana Juan
Vda. de Molo, and by his nieces and nephew, the oppositors-
appellants, Luz Gliceria and Cornelio, all surnamed Molo, who
were the legitimate children of Candido Molo y Legaspi,
deceased brother of the testator. Mariano Molo y Legaspi left two
wills, one executed on August 17, 1918, (Exhibit A) and another
executed on June 20, 1939. (Exhibit I). The later will executed in
1918.
On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court
of First Instance of Rizal a petition, which was docketed as
special proceeding No. 8022 seeking the probate of the will
executed by the deceased on June 20, 1939. There being no
opposition, the will was probated. However, upon petition filed by
the herein oppositors, the order of the court admitting the will to
probate was set aside and the case was reopened. After hearing,
at which both parties presented their evidence, the court
rendered decision denying the probate of said will on the ground
that the petitioner failed to prove that the same was executed in
accordance with law.
In view of the disallowance of the will executed on June 20, 1939,
the widow on February 24, 1944, filed another petition for the
probate of the will executed by the deceased on August 17, 1918,
which was docketed as special proceeding No. 56, in the same
court. Again, the same oppositors filed an opposition to the
petition based on three grounds: (1) that petitioner is now
estopped from seeking the probate of the will of 1918; (2) that
said will has not been executed in the manner required by law
and (3) that the will has been subsequently revoked. But before
the second petition could be heard, the battle for liberation came
and the records of the case were destroyed. Consequently, a
petition for reconstitution was filed, but the same was found to be
impossible because neither petitioner nor oppositors could
produce the copies required for its reconstitution. As a result,
petitioner filed a new petition on September 14, 1946, similar to
the one destroyed, to which the oppositors filed an opposition
based on the same grounds as those contained in their former
opposition. Then, the case was set for trial, and on May 28, 1948,
the court issued an order admitting the will to probate already
stated in the early part of this decision. From this order the
oppositors appealed assigning six errors, to wit.
I. The probate court erred in not holding that the present
petitioner voluntarily and deliberately frustrated the
probate of the will dated June 20, 1939, in special
proceeding No. 8022, in order to enable her to obtain
the probate of another alleged will of Molo dated 191.
II. The court a quo erred in not holding that the petitioner
is now estopped from seeking the probate of Molo's
alleged will of 1918.
III. The lower court erred in not holding that petitioner
herein has come to court with "unclean hands" and as
such is not entitled to relief.
IV.
alleged will of August 17, 1918 was not executed in the
manner required by law.
V. The probate court erred in not holding that the alleged
will of 1918 was deliberately revoked by Molo himself.
VI. The lower court erred in not holding that Molo's will
of 1918 was subsequently revoked by the decedent's
will of 1939.
In their first assignment of error, counsel for oppositors contend
that the probate court erred in not holding that the petitioner
voluntarily and deliberately frustrated the probate of the will dated
June 20, 1939, in order to enable her to obtain the probate of the
will executed by the deceased on August 17, 1918, pointing out
certain facts and circumstances with their opinion indicate that
petitioner connived with the witness Canuto Perez in an effort to
defeat and frustrate the probate of the 1939 will because of her
knowledge that said will intrinsically defective in that "the one and
only testamentory disposition thereof was a "disposicion
captatoria". These circumstances, counsel for the appellants
contend, constitute a series of steps deliberately taken by
petitioner with a view to insuring the realization of her plan of
securing the probate of the 1918 will which she believed would
better safeguard her right to inherit from the decease.
These imputations of fraud and bad faith allegedly committed in
connection with special proceedings No. 8022, now closed and
terminated, are vigorously met by counsel for petitioner who
contends that to raise them in these proceedings which are
entirely new and distinct and completely independent from the
other is improper and unfair as they find no support whatsoever
in any evidence submitted by the parties in this case. They are
merely based on the presumptions and conjectures not
supported by any proof. For this reason, counsel, contends, the
lower court was justified in disregarding them and in passing them
sub silentio in its decision.
A careful examination of the evidence available in this case
seems to justify this contention. There is indeed no evidence
which may justify the insinuation that petitioner had deliberately
intended to frustrate the probate of the 1939 will of the deceased
to enable her to seek the probate of another will other than a mere
conjecture drawn from the apparently unexpected testimony of
Canuto Perez that he went out of the room to answer an urgent
call of nature when Artemio Reyes was signing the will and the
failure of petitioner later to impeach the character of said witness
in spite of the opportunity given her by the court to do so. Apart
from this insufficiency of evidence, the record discloses that this
failure has been explained by petitioner when she informed the
court that she was unable to impeach the character of her witness
Canuto Perez because of her inability to find witnesses who may
impeach him, and this explanation stands uncontradicted.
Whether this explanation is satisfactory or not, it is not now, for
us to determine. It is an incident that comes within the province
of the former case. The failure of petitioner to present the
testimony of Artemio Reyes at the hearing has also been
explained, and it appears that petitioner has filed because his
whereabouts could not be found. Whether this is true or not is
also for this Court to determine. It is likewise within the province
and function of the court in the former case. And the unfairness
of this imputation becomes more glaring when we stock of the
developments that had taken place in these proceedings which
show in bold relief the true nature of the conduct, behavior and
character of the petitioner so bitterly assailed and held in
disrepute by the oppositors.
It should be recalled that the first petition for the probate of the
will executed on June 20, 1939, was filed on February 7, 1941,
by the petitioner. There being no opposition, the will was
probated. Subsequently, however, upon petition of the herein
oppositors, the order of the court admitting said will to probate
was set aside, over the vigorous opposition of the herein
petitioner, and the case was reopened. The reopening was
ordered because of the strong opposition of the oppositors who
contended that he will had not been executed as required by law.
After the evidence of both parties had been presented, the
oppositors filed an extensive memorandum wherein they
reiterated their view that the will should be denied probate. And
on the strenght of this opposition, the court disallowed the will.
If petitioner then knew that the 1939 will was inherently defective
and would make the testamentary disposition in her favor invalid
and ineffective, because it is a "disposicion captatoria", which
knowledge she may easily acquire through consultation with a
lawyer, there was no need her to go through the order of filing the
petition for the probate of the will. She could accomplish her
desire by merely suppressing the will or tearing or destroying it,
and then take steps leading to the probate of the will executed in
1918. But for her conscience was clear and bade her to take the
only proper step possible under the circumstances, which is to
institute the necessary proceedings for the probate of the 1939
will. This she did and the will was admitted to probate. But then
the unexpected happened. Over her vigorous opposition, the
herein appellants filed a petition for reopening, and over her
vigorous objection, the same was granted and the case was
reopened. Her motion for reconsideration was denied. Is it her
fault that the case was reopened? Is it her fault that the order
admitting the will to probate was set aside? That was a
contingency which petitioner never expected. Had appellants not
filed their opposition to the probate of the will and had they limited
their objection to the intrinsic validity of said will, their plan to
defeat the will and secure the intestacy of the deceased would
have perhaps been accomplished. But they failed in their
strategy. If said will was denied probate it is due to their own
effort. It is now unfair to impute bad faith petitioner simply
because she exerted every effort to protect her own interest and
prevent the intestacy of the deceased to happen.
Having reached the foregoing conclusions, it is obvious that the
court did not commit the second and third errors imputed to it by
the counsel for appellants. Indeed, petitioner cannot be
considered guilty or estoppel which would prevent her from
seeking the probate of the 1918 will simply because of her effort
to obtain the allowance of the 1939 will has failed considering that
in both the 1918 and 1939 wills she was in by her husband as his
universal heir. Nor can she be charged with bad faith far having
done so because of her desire to prevent the intestacy of her
husband. She cannot be blamed being zealous in protecting her
interest.
The next contention of appellants refers to the revocatory clause
contained in 1939 will of the deceased which was denied probate.
They contend that, notwithstanding the disallowance of said will,
the revocatory clause is valid and still has the effect of nullifying
the prior of 1918.
Counsel for petitioner meets this argument by invoking the
doctrine laid down in the case of Samson vs. Naval, (41 Phil.,
838). He contends that the facts involved in that case are on all
fours with the facts of this case. Hence, the doctrine is that case
is here controlling.
There is merit in this contention. We have carefully read the facts
involved in the Samson case we are indeed impressed by their
striking similarity with the facts of this case. We do not need to
recite here what those facts are; it is enough to point out that they
contain many points and circumstances in common. No reason,
therefore, is seen by the doctrine laid down in that case (which
we quote hereunder) should not apply and control the present
case.
A subsequent will, containing a clause revoking a
previous will, having been disallowed, for the reason
that it was not executed in conformity with the provisions
of section 618 of the Code of Civil Procedure as to the
making of wills, cannot produce the effect of annulling
the previous will, inasmuch as said revocatory clause is
void. (41 Phil., 838.)
Apropos of this question, counsel for oppositors make the remark
that, while they do not disagree with the soundness of the ruling
laid down in the Samson case, there is reason to abandon said
ruling because it is archaic or antiquated and runs counter to the
modern trend prevailing in American jurisprudence. They
maintain that said ruling is no longer controlling but merely
represents the point of view of the minority and should, therefore,
be abandoned, more so if we consider the fact that section 623
of our Code of Civil Procedure, which governs the revocation of
wills, is of American origin and as such should follow the
prevailing trend of the majority view in the United States. A long
line of authorities is cited in support of this contention. And these
authorities hold the view, that "an express revocation is
immediately effective upon the execution of the subsequent will,
and does not require that it first undergo the formality of a probate
proceeding". (p. 63, appellants' brief .
While they are many cases which uphold the view entertained by
counsel for oppositors, and that view appears to be in controlling
the states where the decisions had been promulgated, however,
we are reluctant to fall in line with the assertion that is now the
prevailing view in the United States. In the search we have made
of American authorities on the subject, we found ourselves in a
pool of conflicting opinions perhaps because of the peculiar
provisions contained in the statutes adopted by each State in the
subject of revocation of wills. But the impression we gathered
from a review and the study of the pertinent authorities is that the
doctrine laid down in the Samson case is still a good law. On page
328 of the American Jurisprudence Vol. 57, which is a revision
Published in 1948, we found the following passages which in our
opinion truly reflect the present trend of American jurisprudence
on this matter affecting the revocation of wills:
SEC. 471. Observance of Formalities in Execution of
Instrument. Ordinarily, statutes which permit the
revocation of a will by another writing provide that to be
effective as a revocation, the writing must be executed
with the same formalities which are required to be
observed in the execution of a will. Accordingly, where,
under the statutes, attestation is necessary to the
making of a valid will, an unattested non testamentary
writing is not effective to revoke a prior will. It has been
held that a writing fails as a revoking instrument where
it is not executed with the formalities requisite for the
execution of a will, even though it is inscribed on the will
itself, although it may effect a revocation by cancellation
or obliteration of the words of the will. A testator cannot
reserve to himself the power to modify a will by a written
instrument subsequently prepared but not executed in
the manner required for a will.
SEC, 472. Subsequent Unexecuted, Invalid, or
Ineffective Will or Codicil. A will which is invalid
because of the incapacity of the testator, or of undue
influence can have no effect whatever as a revoking will.
Moreover, a will is not revoked by the unexecuted draft
of a later one. Nor is a will revoked by a defectively
executed will or codicil, even though the latter contains
a clause expressly revoking the former will, in a
jurisdiction where it is provided by a controlling statute
that no writing other than a testamentary instrument is
sufficient to revoke a will, for the simple reason that
there is no revoking will. Similarly where the statute
provides that a will may be revoked by a subsequent will
or other writing executed with the same formalities as
are required in the execution of wills, a defectively
executed will does not revoke a prior will, since it cannot
be said that there is a writing which complies with the
statute. Moreover, a will or codicil which, on account of
the manner in which it is executed, is sufficient to pass
only personally does not affect dispositions of real
estate made by a former will, even though it may
expressly purport to do so. The intent of the testator to
revoke is immaterial, if he has not complied with the
statute. (57 Am. Jur., 328, 329.)
We find the same opinion in the American Law Reports,
Annotated, edited in 1939. On page 1400, Volume 123, there
appear many authorities on the "application of rules where
second will is invalid", among which a typical one is the following:
It is universally agreed that where the second will is
invalid on account of not being executed in accordance
with the provisions of the statute, or where the testator
who has not sufficient mental capacity to make a will or
the will is procured through undue influence, or the such,
in other words, where the second will is really no will, it
does not revoke the first will or affect it in any manner.
Mort vs. Baker University (193-5) 229 Mo. App., 632, 78
S.W. (2d), 498.
These treaties cannot be mistaken. They uphold the view on
which the ruling in the Samson case is predicated. They reflect
the opinion that this ruling is sound and good and for this reason,
we see no justification for abondoning it as now suggested by
counsel for the oppositors.
It is true that our law on the matter (sec. 623, Code Civil
Procedure) provides that a will may be some will, codicil, or other
writing executed as proved in case of wills" but it cannot be said
that the 1939 will should be regarded, not as a will within the
meaning of said word, but as "other writing executed as provided
in the case of wills", simply because it was denied probate. And
even if it be regarded as any other writing within the meaning of
said clause, there is authority for holding that unless said writing
is admitted to probate, it cannot have the effect of revocation.
(See 57 Am. Jur. pp. 329-330).
But counsel for oppositors contemned that, regardless of said
revocatory clause, said will of 1918 cannot still be given effect
because of the presumption that it was deliberately revoked by
the testator himself. The oppositors contend that the testator,
after executing the 1939 will, and with full knowledge of the
recovatory clause contained said will, himself deliberately
destroyed the original of the 1918 will, and for that reason the will
submitted by petitioner for probate in these proceedings is only a
duplicate of said original.
There is no evidence which may directly indicate that the testator
deliberately destroyed the original of the 1918 will because of his
knowledge of the revocatory clause contained in the will he
executed in 1939. The only evidence we have is that when the
first will was executed in 1918, Juan Salcedo, who prepared it,
gave the original and copies to the testator himself and apparently
they remained in his possession until he executed his second will
in 1939. And when the 1939 will was denied probate on
November 29, 1943, and petitioner was asked by her attorney to
look for another will, she found the duplicate copy (Exhibit A)
among the papers or files of the testator. She did not find the
original.
If it can be inferred that the testator deliberately destroyed the
1918 will because of his knowledge of the revocatory clause of
the 1939 will, and it is true that he gave a duplicate copy thereof
to his wife, the herein petitioner, the most logical step for the
testator to take is to recall said duplicate copy in order that it may
likewise be destroyed. But this was not done as shown by the fact
that said duplicate copy remained in the possession of petitioner.
It is possible that because of the long lapse of twenty-one (21)
years since the first will was executed, the original of the will had
been misplaced or lost, and forgetting that there was a copy, the
testator deemed it wise to execute another will containing exactly
the same testamentary dispositions. Whatever may be the
conclusion we may draw from this chain of circumstances, the
stubborn fact is that there is no direct evidence of voluntary or
deliberate destruction of the first will by the testator. This matter
cannot be inference or conjectur.
Granting for the sake of argument that the earlier will was
voluntarily destroyed by the testator after the execution of the
second will, which revoked the first, could there be any doubt,
under this theory, that said earlier will was destroyed by the
testator in the honest belief that it was no longer necessary
because he had expressly revoked it in his will of 1939? In other
words, can we not say that the destruction of the earlier will was
but the necessary consequence of the testator's belief that the
revocatory clause contained in the subsequent will was valid and
the latter would be given effect? If such is the case, then it is our
opinion that the earlier will can still be admitted to probate under
the principle of "dependent relative revocation".
This doctrine is known as that of dependent relative
revocation, and is usually applied where the testator
cancels or destroys a will or executes an instrument
intended to revoke a will with a present intention to make
a new testamentary disposition as a substitute for the
old, and the new disposition is not made or, if made, fails
of effect for same reason. The doctrine is n limited to the
existence of some other document, however, and has
been applied where a will was destroyed as a
consequence of a mistake of law. . . . (68 C.J.P. 799).
The rule is established that where the act of destruction
is connected with the making of another will so as fairly
to raise the inference that the testator meant the
revocation of the old to depend upon the efficacy of a
new disposition intended to be substituted, the
revocation will be conditional and dependent upon the
efficacy of the new disposition; and if, for any reason,
the new will intended to be made as a substitute is
inoperative, the revocation fails and the original will
remains in full force. (Gardner, pp. 232, 233.)
This is the doctrine of dependent relative revocation.
The failure of a new testamentary disposition upon
whose validity the revocation depends, is equivalent to
the non-fulfillment of a suspensive conditions, and
hence prevents the revocation of the original will. But a
mere intent to make at some time a will in the place of
that destroyed will not render the destruction
conditional. It must appear that the revocation is
dependent upon the valid execution of a new will. (1
Alexander, p. 751; Gardner, p. 253.)
We hold therefore, that even in the supposition that the
destruction of the original will by the testator could be presumed
from the failure of the petitioner to produce it in court, such
destruction cannot have the effect of defeating the prior will of
1918 because of the fact that it is founded on the mistaken belief
that the will of 1939 has been validly executed and would be given
due effect. The theory on which this principle is predicated is that
the testator did not intend to die intestate. And this intention is
clearly manifest when he executed two wills on two different
occasion and instituted his wife as his universal heir. There can
therefore be no mistake as to his intention of dying testate.
The remaining question to be determined refers to the sufficiency
of the evidence to prove the due execution of the will.
The will in question was attested, as required by law, by three
witnesses, Lorenzo Morales, Rufino Enriquez, and Angel
Cuenca. The first two witnesses died before the commencement
of the present proceedings. So the only instrumental witness
available was Angel Cuenca and under our law and precedents,
his testimony is sufficient to prove the due execution of the will.
However, petitioner presented not only the testimony of Cuenca
but placed on the witness stand Juan Salcedo, the notary public
who prepared and notarized the will upon the express desire and
instruction of the testator, The testimony of these witnesses
shows that the will had been executed in the manner required by
law. We have read their testimony and we were impressed by
their readiness and sincerity. We are convinced that they told the
truth.
Wherefore, the order appealed from is hereby affirmed, with costs
against the appellants.1wphl.nt
Paras, C.J. Feria, Pablo Bengzon, Tuason and Jugo JJ., concur.
G.R. No. 45629 September 22, 1938
ANTILANO G. MERCADO, petitioner,
vs.
ALFONSO SANTOS, Judge of First Instance of
Pampanga, respondents.
ROSARIO BASA DE LEON, ET AL., intervenors.
LAUREL, J.:
On May 28, 1931, the petitioner herein filed in the Court of First
Instance of Pampanga a petition for the probate of the will of his
deceased wife, Ines Basa. Without any opposition, and upon the
testimony of Benigno F. Gabino, one of the attesting witnesses,
the probate court, on June 27,1931, admitted the will to probate.
Almost three years later, on April 11, 1934, the five intervenors
herein moved ex parte to reopen the proceedings, alleging lack
of jurisdiction of the court to probate the will and to close the
proceedings. Because filed ex parte, the motion was denied.
The same motion was filed a second time, but with notice to the
adverse party. The motion was nevertheless denied by the
probate court on May 24, 1934. On appeal to this court, the
order of denial was affirmed on July 26, 1935.
(Basa vs. Mercado, 33 Off. Gaz., 2521.)
It appears that on October 27, 1932, i. e., sixteen months after
the probate of the will of Ines Basa, intervenor Rosario Basa de
Leon filed with the justice of the peace court of San Fernando,
Pampanga, a complaint against the petitioner herein, for
falsification or forgery of the will probated as above indicated.
The petitioner was arrested. He put up a bond in the sum of
P4,000 and engaged the services of an attorney to undertake
his defense. Preliminary investigation of the case was continued
twice upon petition of the complainant. The complaint was finally
dismissed, at the instance of the complainant herself, in an
order dated December 8, 1932. Three months later, or on March
2, 1933, the same intervenor charged the petitioner for the
second time with the same offense, presenting the complaint
this time in the justice of the peace court of Mexico, Pampanga.
The petitioner was again arrested, again put up a bond in the
sum of P4,000, and engaged the services of counsel to defend
him. This second complaint, after investigation, was also
dismissed, again at the instance of the complainant herself who
alleged that the petitioner was in poor health. That was on April
27, 1933. Some nine months later, on February 2, 1934, to be
exact, the same intervenor accused the same petitioner for the
third time of the same offense. The information was filed by the
provincial fiscal of Pampanga in the justice of the peace court of
Mexico. The petitioner was again arrested, again put up a bond
of P4,000, and engaged the services of defense counsel. The
case was dismissed on April 24, 1934, after due investigation,
on the ground that the will alleged to have been falsified had
already been probated and there was no evidence that the
petitioner had forged the signature of the testatrix appearing
thereon, but that, on the contrary, the evidence satisfactorily
established the authenticity of the signature aforesaid.
Dissatisfied with the result, the provincial fiscal, on May 9, 1934,
moved in the Court of First Instance of Pampanga for
reinvestigation of the case. The motion was granted on May 23,
1934, and, for the fourth time, the petitioner was arrested, filed a
bond and engaged the services of counsel to handle his
defense. The reinvestigation dragged on for almost a year until
February 18, 1934, when the Court of First Instance ordered
that the case be tried on the merits. The petitioner interposed a
demurrer on November 25, 1935, on the ground that the will
alleged to have been forged had already been probated. This
demurrer was overruled on December 24, 1935, whereupon an
exception was taken and a motion for reconsideration and
notice of appeal were filed. The motion for reconsideration and
the proposed appeal were denied on January 14, 1936. The
case proceeded to trial, and forthwith petitioner moved to
dismiss the case claiming again that the will alleged to have
been forged had already been probated and, further, that the
order probating the will is conclusive as to the authenticity and
due execution thereof. The motion was overruled and the
petitioner filed with the Court of Appeals a petition
for certiorari with preliminary injunction to enjoin the trial court
from further proceedings in the matter. The injunction was
issued and thereafter, on June 19, 1937, the Court of Appeals
denied the petition for certiorari, and dissolved the writ of
preliminary injunction. Three justices dissented in a separate
opinion. The case is now before this court for review
on certiorari.
Petitioner contends (1) that the probate of the will of his
deceased wife is a bar to his criminal prosecution for the alleged
forgery of the said will; and, (2) that he has been denied the
constitutional right to a speedy trial.
1. Section 306 of our Code of Civil Procedure provides as to the
effect of judgments.
SEC. 306. Effect of judgment. The effect of a
judgment or final order in an action or special
proceeding before a court or judge of the Philippine
Islands or of the United States, or of any State or
Territory of the United States, having jurisdiction to
pronounce the judgment or order, may be as follows.
1. In case of a judgment or order against a specific
thing, or in respect to the probate of a will, or the
administration of the estate of a deceased person, or in
respect to the personal, political, or legal condition or
relation of a particular person, the judgment or order is
conclusive upon the title of the thing, the will or
administration, or the condition or relation of the
person Provided, That the probate of a will or granting
of letters of administration shall only be prima
facie evidence of the death of the testator or intestate.
xxx xxx xxx
(Emphasis ours.)
Section 625 of the same Code is more explicit as to the
conclusiveness of the due execution of a probate will. It says.
SEC. 625. Allowance Necessary, and Conclusive as to
Execution. No will shall pass either the real or
personal estate, unless it is proved and allowed in the
Court of First Instance, or by appeal to the Supreme
Court; and the allowance by the court of a will of real
and personal estate shall be conclusive as to its due
execution. (Emphasis ours.)
(In Manahan vs. Manahan 58 Phil., 448, 451), we held:
. . . The decree of probate is conclusive with respect to
the due execution thereof and it cannot be impugned
on any of the grounds authorized by law, except that of
fraud, in any separate or independent action or
proceeding. Sec. 625, Code of Civil Procedure;
Castaeda vs. Alemany, 3 Phil., 426;
Pimentel vs. Palanca, 5 Phil., 436; Sahagun vs. De
Gorostiza, 7 Phil., 347; Limjuco vs. Ganara, 11 Phil.,
393; Montaano vs. Suesa, 14 Phil., 676; in re Estate
of Johnson, 39 Phil, 156; Riera vs. Palmaroli, 40 Phil.,
105; Austria vs. Ventenilla, 21 Phil., 180;
Ramirez vs. Gmur, 42 Phil., 855; and Chiong
Jocsoy vs. Vano, 8 Phil., 119.
In 28 R. C. L., p. 377, section 378, it is said.
The probate of a will by the probate court having
jurisdiction thereof is usually considered as conclusive
as to its due execution and validity, and is also
conclusive that the testator was of sound and
disposing mind at the time when he executed the will,
and was not acting under duress, menace, fraud, or
undue influence, and that the will is genuine and not a
forgery. (Emphasis ours.)
As our law on wills, particularly section 625 of our Code of Civil
Procedure aforequoted, was taken almost bodily from the
Statutes of Vermont, the decisions of the Supreme Court of the
State relative to the effect of the probate of a will are of
persuasive authority in this jurisdiction. The Vermont statute as
to the conclusiveness of the due execution of a probated will
reads as follows.
SEC. 2356. No will shall pass either real or personal
estate, unless it is proved and allowed in the probate
court, or by appeal in the county or supreme court; and
the probate of a will of real or personal estate shall be
 conclusive as to its due execution. (Vermont Statutes,
p. 451.)
Said the Supreme Court of Vermont in the case of Missionary
Society vs. Eells (68 Vt., 497, 504): "The probate of a will by the
probate court having jurisdiction thereof, upon the due notice, is
conclusive as to its due execution against the whole world. (Vt.
St., sec. 2336; Fosters Exrs. vs. Dickerson, 64 Vt., 233.)"
The probate of a will in this jurisdiction is a proceeding in rem.
The provision of notice by Publication as a prerequisite to the
allowance of a will is constructive notice to the whole world, and
when probate is granted, the judgment of the court is binding
upon everybody, even against the State. This court held in the
case of Manalo vs. Paredes and Philippine Food Co. (47 Phil.,
938):
The proceeding for the probate of a will is one in
rem (40 Cyc., 1265), and the court acquires jurisdiction
over all the persons interested, through the publication
of the notice prescribed by section 630 of the Code of
Civil Procedure, and any order that may be entered
therein is binding against all of them.
Through the publication of the petition for the probate
of the will, the court acquires jurisdiction over all such
persons as are interested in said will; and any
judgment that may be rendered after said proceeding
is binding against the whole world.
In Everrett vs. Wing (103 Vt., 488, 492), the Supreme Court of
Vermont held.
In this State the probate of a will is a proceeding in
rem being in form and substance upon the will itself to
determine its validity. The judgment determines the
status of the instrument, whether it is or is not the will
of the testator. When the proper steps required by law
have been taken the judgment is binding upon
everybody, and makes the instrument as to all the
world just what the judgment declares it to be.
(Woodruff vs. Taylor, 20 Vt., 65, 73; Burbeck vs. Little,
50 Vt., 713, 715; Missionary Society vs. Eells, 68 Vt.,
497, 504; 35 Atl., 463.) The proceedings before the
probate court are statutory and are not governed by
common law rules as to parties or causes of action.
(Holdrige vs. Holdriges Estate, 53 Vt., 546, 550;
Purdy vs. Estate of Purdy, 67 Vt. 50, 55; 30 Atl., 695.)
No process is issued against anyone in such
proceedings, but all persons interested in determining
the state or conditions of the instrument are
constructively notified by the publication of notice as
required by G. L. 3219. (Woodruff vs. Taylor, supra; In
re Warners Estate 98 Vt., 254; 271; 127 Atl., 362.)
Section 333, paragraph 4, of the Code of Civil Procedure
establishes an incontrovertible presumption in favor of
judgments declared by it to be conclusive.
SEC. 333. Conclusive Presumptions. The following
presumptions or deductions, which the law expressly
directs to be made from particular facts, are deemed
conclusive.
xxx xxx xxx
4. The judgment or order of a court, when declared by
this code to be conclusive.
Conclusive presumptions are inferences which the law makes
so peremptory that it will not allow them to be overturned by any
contrary proof however strong. (Brant vs. Morning Journal
Assn., 80 N.Y.S., 1002, 1004; 81 App. Div., 183; see, also,
Joslyn vs. Puloer, 59 Hun., 129, 140, 13 N.Y.S., 311.) The will in
question having been probated by a competent court, the law
will not admit any proof to overthrow the legal presumption that
it is genuine and not a forgery.
The majority decision of the Court of Appeals cites English
decisions to bolster up its conclusion that "the judgment
admitting the will to probate is binding upon the whole world as
to the due execution and genuineness of the will insofar as civil
rights and liabilities are concerned, but not for the purpose of
punishment of a crime." The cases of Dominus Rex vs. Vincent,
93 English Reports, Full Reprint, 795, the first case being
decided in 1721, were cited to illustrate the earlier English
decisions to the effect that upon indictment for forging a will, the
probating of the same is conclusive evidence in the defendants
favor of its genuine character. Reference is made, however, to
the cases of Rex vs. Gibson, 168 English Reports, Full Reprint,
836, footnote (a), decided in 1802, and Rex vs. Buttery and
Macnamarra, 168 English Reports, Full Reprint, 836, decided in
1818, which establish a contrary rule. Citing these later cases,
we find the following quotation from Black on Judgments, Vol. II,
page 764.
A judgment admitting a will to probate cannot be
attacked collaterally although the will was forged; and a
payment to the executor named therein of a debt due
the decedent will discharge the same, notwithstanding
the spurious character of the instrument probated. It
has also been held that, upon an indictment for forging
a will, the probate of the paper in question is
conclusive evidence in the defendants favor of its
genuine character. But this particular point has lately
been ruled otherwise.
It was the case of Rex vs. Buttery, supra, which induced the
Supreme Court of Massachussetts in the case of
Waters vs. Stickney (12 Allen 1; 90 Am. Dec., 122) also cited by
the majority opinion, to hold that "according to later and sounder
decisions, the probate, though conclusive until set aside of the
disposition of the property, does not protect the forger from
punishment." This was reproduced in 28 R.C.L., p. 376, and
quoted in Barry vs. Walker (103 Fla., 533; 137 So., 711, 715),
and Thompson vs. Freeman (149 So., 740, 742), also cited in
support of the majority opinion of the Court of Appeals. The
dissenting opinion of the Court of Appeals in the instant case
under review makes a cursory study of the statutes obtaining in
England, Massachussetts and Florida, and comes to the
conclusion that the decisions cited in the majority opinion do not
appear to "have been promulgated in the face of statutes similar
to ours." The dissenting opinion cites Whartons Criminal
Evidence (11th ed., sec. 831), to show that the probate of a will
in England is only prima facie proof of the validity of the will (Op.
Cit. quoting Marriot vs. Marriot, 93 English Reprint, 770); and 21
L.R.A. (pp. 686689 and note), to show that in Massachussetts
there is no statute making the probate of a will conclusive, and
that in Florida the statute(sec. 1810, Revised Statutes) makes
the probate conclusive evidence as to the validity of the will with
regard to personal, and prima facie as to real estate. The cases
decided by the Supreme Court of Florida cited by the majority
opinion, supra, refer to wills of both personal and real estate.
The petitioner cites the case of State vs. McGlynn (20 Cal., 233,
decided in 1862), in which Justice Norton of the Supreme Court
of California, makes the following review of the nature of
probate proceedings in England with respect to wills personal
and real property.
In England, the probate of wills of personal estate
belongs to the Ecclesiastical Courts. No probate of a
will relating to real estate is there necessary. The real
estate, upon the death of the party seized, passes
immediately to the devisee under the will if there be
one; or if there be no will, to the heir at law. The person
who thus becomes entitled takes possession. If one
person claims to be the owner under a will, and
another denies the validity of the will and claims to be
the owner as heir at law, an action of ejectment is
brought against the party who may be in possession by
the adverse claimant; and on the trial of such an
action, the validity of the will is contested, and
evidence may be given by the respective parties as to
the capacity of the testator to make a will, or as to any
fraud practiced upon him, or as to the actual execution
of it, or as to any other circumstance affecting its
character as a valid devise of the real estate in dispute.
The decision upon the validity of the will in such action
becomes res adjudicata, and is binding and conclusive
 upon the parties to that action and upon any person
who may subsequently acquire the title from either of
those parties; but the decision has no effect upon other
parties, and does not settle what may be called the
status or character of the will, leaving it subject to be
enforced as a valid will, or defeated as invalid,
whenever other parties may have a contest depending
upon it. A probate of a will of personal property, on the
contrary, is a judicial determination of the character of
the will itself. It does not necessarily or ordinarily arise
from any controversy between adverse claimants, but
is necessary in order to authorize a disposition of the
personal estate in pursuance of its provisions. In case
of any controversy between adverse claimants of the
personal estate, the probate is given in evidence and is
binding upon the parties, who are not at liberty to
introduce any other evidence as to the validity of the
will.
The intervenors, on the other hand, attempt to show that the
English law on wills is different from that stated in the case of
State vs. McGlynn, supra, citing the following statutes.
1. The Wills Act, 1837 (7 Will. 4 E 1 Vict. c. 26).
2. The Court of Probate Act, 1857 (20 and 21 Vict. c.
77).
3. The Judicature Act, 1873 (36 and 37 Vict. c. 66).
The Wills Act of 1837 provides that probate may be granted of
"every instrumental purporting to be testamentary and executed
in accordance with the statutory requirements . . . if it disposes
of property, whether personal or real." The Ecclesiastical Courts
which took charge of testamentary causes (Ewells Blackstone
[1910], p. 460), were determined by the Court of Probate Act of
1857, and the Court of Probate in turn was, together with other
courts, incorporated into the Supreme Court of Judicature, and
transformed into the Probate Division thereof, by the Judicature
Act of 1873. (Lord Halsbury, The Laws of England[1910], pp.
151156.) The intervenors overlook the fact, however, that the
case of Rex vs. Buttery and Macnamarra, supra, upon which
they rely in support of their theory that the probate of a forged
will does not protect the forger from punishment, was decided
long before the foregoing amendatory statutes to the English
law on wills were enacted. The case of State vs. McGlynn may
be considered, therefore, as more or less authoritative on the
law of England at the time of the promulgation of the decision in
the case of Rex vs. Buttery and Macnamarra.
In the case of State vs. McGlynn, the Attorney General of
California filed an information to set aside the probate of the will
of one Broderick, after the lapse of one year provided by the law
of California for the review of an order probating a will, in order
that the estate may be escheated to the State of California for
the review of an probated will was forged and that Broderick
therefore died intestate, leaving no heirs, representatives or
devisees capable of inheriting his estate. Upon these facts, the
Supreme Court of California held.
The fact that a will purporting to be genuine will of
Broderick, devising his estate to a devisee capable of
inheriting and holding it, has been admitted to probate
and established as a genuine will by the decree of a
Probate Court having jurisdiction of the case, renders
it necessary to decide whether that decree, and the will
established by it, or either of them, can be set aside
and vacated by the judgment of any other court. If it
shall be found that the decree of the Probate Court, not
reversed by the appellate court, is final and conclusive,
and not liable to be vacated or questioned by any other
court, either incidentally or by any direct proceeding,
for the purpose of impeaching it, and that so long as
the probate stands the will must be recognized and
admitted in all courts to be valid, then it will be
immaterial and useless to inquire whether the will in
question was in fact genuine or forged.
(State vs. McGlynn, 20 Cal., 233; 81 Am. Dec., 118,
121.).
Although in the foregoing case the information filed by the State
was to set aside the decree of probate on the ground that the
will was forged, we see no difference in principle between that
case and the case at bar. A subtle distinction could perhaps be
drawn between setting aside a decree of probate, and declaring
a probated will to be a forgery. It is clear, however, that a duly
probated will cannot be declared to be a forgery without
disturbing in a way the decree allowing said will to probate. It is
at least anomalous that a will should be regarded as genuine for
one purpose and spurious for another.
The American and English cases show a conflict of authorities
on the question as to whether or not the probate of a will bars
criminal prosecution of the alleged forger of the probate will. We
have examined some important cases and have come to the
conclusion that no fixed standard maybe adopted or drawn
therefrom, in view of the conflict no less than of diversity of
statutory provisions obtaining in different jurisdictions. It
behooves us, therefore, as the court of last resort, to choose
that rule most consistent with our statutory law, having in view
the needed stability of property rights and the public interest in
general. To be sure, we have seriously reflected upon the
dangers of evasion from punishment of culprits deserving of the
severity of the law in cases where, as here, forgery is
discovered after the probate of the will and the prosecution is
had before the prescription of the offense. By and large,
however, the balance seems inclined in favor of the view that
we have taken. Not only does the law surround the execution of
the will with the necessary formalities and require probate to be
made after an elaborate judicial proceeding, but section 113, not
to speak of section 513, of our Code of Civil Procedure provides
for an adequate remedy to any party who might have been
adversely affected by the probate of a forged will, much in the
same way as other parties against whom a judgment is
rendered under the same or similar circumstances.
(Pecson vs.Coronel, 43 Phil., 358.)The aggrieved party may file
an application for relief with the proper court within a reasonable
time, but in no case exceeding six months after said court has
rendered the judgment of probate, on the ground of mistake,
inadvertence, surprise or excusable neglect. An appeal lies to
review the action of a court of first instance when that court
refuses to grant relief. (Banco Espaol Filipino vs. Palanca, 37
Phil., 921; Philippine Manufacturing Co. vs. Imperial, 47 Phil.,
810; Samia vs. Medina, 56 Phil., 613.) After a judgment allowing
a will to be probated has become final and unappealable, and
after the period fixed by section 113 of the Code of Civil
Procedure has expired, the law as an expression of the
legislative wisdom goes no further and the case ends there.
. . . The court of chancery has no capacity, as the
authorities have settled, to judge or decide whether a
will is or is not a forgery; and hence there would be an
incongruity in its assuming to set aside a probate
decree establishing a will, on the ground that the
decree was procured by fraud, when it can only arrive
at the fact of such fraud by first deciding that the will
was a forgery. There seems, therefore, to be a
substantial reason, so long as a court of chancery is
not allowed to judge of the validity of a will, except as
shown by the probate, for the exception of probate
decrees from the jurisdiction which courts of chancery
exercise in setting aside other judgments obtained by
fraud. But whether the exception be founded in good
reason or otherwise, it has become too firmly
established to be disregarded. At the present day, it
would not be a greater assumption to deny the general
rule that courts of chancery may set aside judgments
procured by fraud, than to deny the exception to that
rule in the case of probate decrees. We must
acquiesce in the principle established by the
authorities, if we are unable to approve of the reason.
Judge Story was a staunch advocate for the most
enlarged jurisdiction of courts of chancery, and was
compelled to yield to the weight of authority. He says
"No other excepted case is known to exist; and it is not
easy to discover the grounds upon which this
exception stands, in point of reason or principle,
although it is clearly settled by authority. (1 Storys Eq.
Jur. sec. 440.)" (State vs. McGlynn, 20 Cal., 233; 81
Am. Dec., 118, 129. See, also, Tracy vs. Muir, 121
American State Reports, 118, 125.)
We hold, therefore, that in view of the provisions of sections
306, 333 and 625 of our Code of Civil Procedure, criminal action
will not lie in this jurisdiction against the forger of a will which
had been duly admitted to probate by a court of competent
jurisdiction.
The resolution of the foregoing legal question is sufficient to
dispose of the case. However, the other legal question with
reference to the denial to the accused of his right to a speedy
trial having been squarely raised and submitted, we shall
proceed to consider the same in the light of cases already
adjudicated by this court.
2. The Constitution of the Philippines provides that "In all
criminal prosecutions the accused . . . shall enjoy the right . . . to
have a speedy . . . trial. . . . (Art. III, sec. 1, par. 17. See, also,
G.O. No. 58, sec. 15, No. 7.) Similar provisions are to be found
in the Presidents Instructions to the Second Philippine
Commission (par. 11), the Philippine Bill of July 1, 1902 (sec. 5,
par. 2) and the Jones Act of August 29, 1916 (sec. 3, par. 2).
The provisions in the foregoing organic acts appear to have
been taken from similar provisions in the Constitution of the
United States (6th Amendment) and those of the various states
of the American Union. A similar injunction is contained in the
Malolos Constitution (art. 8, Title IV), not to speak of other
constitutions. More than once this court had occasion to set
aside the proceedings in criminal cases to give effect to the
constitutional injunction of speedy trial. (Conde vs. Judge of
First Instance and Fiscal of Tayabas [1923], 45 Phil., 173;
Conde vs. Rivera and Unson[1924], 45 Phil., 650;
People vs. Castaeda and Fernandez[1936]), 35 Off. Gaz.,
1269; Kalaw vs. Apostol, Oct. 15, 1937, G.R. No. 45591;
Esguerra vs. De la Costa, Aug. 30,1938, G.R. No. 46039.).
In Conde vs. Rivera and Unson, supra, decided before the
adoption of our Constitution, we said.
Philippine organic and statutory law expressly
guarantee that in all criminal prosecutions the accused
shall enjoy the right to have a speedy trial. Aurelia
Conde, like all other accused persons, has a right to a
speedy trial in order that if innocent she may go free,
and she has been deprived of that right in defiance of
law. Dismissed from her humble position, and
compelled to dance attendance on courts while
investigations and trials are arbitrarily postponed
without her consent, is palpably and openly unjust to
her and a detriment to the public. By the use of
reasonable diligence, the prosecution could have
settled upon the appropriate information, could have
attended to the formal preliminary examination, and
could have prepared the case for a trial free from
vexatious, capricious, and oppressive delays.
In People vs. Castaeda and Fernandez, supra, this court found
that the accused had not been given a fair and impartial trial.
The case was to have been remanded to the court a quo for a
new trial before an impartial judge. This step, however, was
found unnecessary. A review of the evidence convinced this
court that a judgment of conviction for theft, as charged, could
not be sustained and, having in view the right to a speedy trial
guaranteed by the Constitution to every person accused of
crime, entered a judgment acquitting the accused, with costs de
oficio. We said.
. . . The Constitution, Article III, section 1, paragraph
17, guarantees to every accused person the right to a
speedy trial. This criminal proceeding has been
dragging on for almost five years now. The accused
have twice appealed to this court for redress from the
wrong that they have suffered at the hands of the trial
court. At least one of them, namely Pedro
Fernandez alias Piro, had been con-fined in prison
from July 20, 1932 to November 27, 1934, for inability
to post the required bond of P3,000 which was finally
reduced to P300. The Government should be the last
to set an example of delay and oppression in the
administration of justice and it is the moral and legal
obligation of this court to see that the criminal
proceedings against the accused come to an end and
that they be immediately dis-charged from the custody
of the law. (Conde vs. Rivera and Unson, 45 Phil.,
651.)
In Kalaw vs. Apostol, supra, the petitioner invoked and this court
applied and gave effect to the doctrines stated in the second
Conde case, supra. In granting the writs prayed for, this court,
after referring to the constitutional and statutory provisions
guaranteeing to persons accused of crime the right to a speedy
trial, said:
Se infiere de los preceptos legales transcritos que todo
acusado en causa criminal tiene derecho a ser juzgado
pronta y publicamente. Juicio rapido significa un
juicioque se celebra de acuerdo con la ley de
procedimiento criminal y los reglamentos, libre de
dilaciones vejatorias, caprichosas y opersivas
(Burnett vs.State, 76 Ark., 295; 88S. W., 956; 113
AMSR, 94; Stewart vs. State, 13 Ark., 720;
Peo. vs. Shufelt, 61 Mich., 237; 28 N. W., 79;
Nixon vs. State, 10 Miss., 497; 41 AMD., 601;
State vs. Cole, 4 Okl. Cr., 25; 109 P., 736;
State vs. Caruthers, 1 Okl. Cr., 428; 98 P., 474;
State vs. Keefe, 17 Wyo., 227, 98 p., 122;22 IRANS,
896; 17 Ann. Cas., 161). Segun los hechos admitidos
resulta que al recurrente se le concedio vista parcial
del asunto, en el Juzgado de Primera Instancia de
Samar, solo despues de haber transcurrido ya mas de
un ao y medio desde la presentacion de la primera
querella y desde la recepcion de la causa en dicho
Juzgado, y despues de haberse transferido dos veces
la vista delasunto sin su consentimiento. A esto debe
aadirse que laprimera transferencia de vista era
claramente injustificadaporque el motivo que se alego
consistio unicamente en laconveniencia personal del
ofendido y su abogado, no habiendose probado
suficientemente la alegacion del primero de quese
hallaba enfermo. Es cierto que el recurrente habia
pedido que, en vez de sealarse a vista el asunto para
el mayo de 1936, lo fuera para el noviembre del mismo
ao; pero,aparte de que la razon que alego era
bastante fuerte porquesu abogado se oponia a
comparecer por compromisos urgentes contraidos con
anterioridad y en tal circunstancia hubiera quedado
indefenso si hubiese sido obligado a entraren juicio,
aparece que la vista se pospuso por el Juzgado amotu
proprio, por haber cancelado todo el calendario judicial
preparado por el Escribano para el mes de junio.
Declaramos, con visto de estos hechos, que al
recurrents se leprivo de su derecho fundamental de
ser juzgado prontamente.
Esguerra vs. De la Costa, supra, was a petition
for mandamus to compel the respondent judge of the Court of
First Instance of Rizal to dismiss the complaint filed in a criminal
case against the petitioner, to cancel the bond put up by the
said petitioner and to declare the costs de oficio. In accepting
the contention that the petitioner had been denied speedy trial,
this court said:
Consta que en menos de un ao el recurrente fue
procesado criminalmente por el alegado delito de
abusos deshonestos, en el Juzgado de Paz del
Municipio de Cainta, Rizal. Como consecuencia de las
denuncias que contra el se presentaron fue arrestado
tres veces y para gozar de libertad provisional, en
espera de los juicios, se vio obligado a prestartres
fianzas por la suma de P1,000 cada una. Si no se da
fin al proceso que ultimamente se ha incoado contra el
recurrente la incertidumbre continuara cerniendose
sobre el y las consiguientes molestias y
preocupaciones continuaran igualmente abrumandole.
El Titulo III, articulo 1, No. 17,de la Constitucion
preceptua que en todo proceso criminalel acusado
tiene derecho de ser juzgado pronta y publicamente. El
Articulo 15, No. 7, de la Orden General No. 58 dispone
asimismo que en las causas criminales el acusado
tendra derecho a ser juzgado pronta y publicamente.
Si el recurrente era realmente culpable del delito que
se le imputo, tenia de todos modos derechos a que
fuera juzgado pronta y publicamente y sin dilaciones
arbitrarias y vejatorias. Hemos declarado
reiteradamente que existe un remedio positivo para los
 casos en que se viola el derecho constitucional del
acusado de ser juzgado prontamente. El acusado que
esprivado de su derecho fundomental de ser
enjuiciado rapidamente tiene derecho a pedir que se le
ponga en libertad, si estuviese detenido, o a que la
causa que pende contra el sea sobreseida
definitivamente. (Conde contra Rivera y Unson, 45 Jur.
Fil., 682; In the matter of Ford [1911], 160 Cal., 334; U.
S. vs. Fox [1880], 3 Mont., 512; Kalaw contra Apostol,
R. G. No. 45591, Oct. 15, 1937;
Pueblo contra Castaeda y Fernandez, 35 Gac. Of.,
1357.)
We are again called upon to vindicate the fundamental right to a
speedy trial. The facts of the present case may be at variance
with those of the cases hereinabove referred to. Nevertheless,
we are of the opinion that, under the circumstances, we should
consider the substance of the right instead of indulging in more
or less academic or undue factual differentiations. The petitioner
herein has been arrested four times, has put up a bond in the
sum of P4,000 and has engaged the services of counsel to
undertake his defense an equal number of times. The first arrest
was made upon a complaint filed by one of the intervenors
herein for alleged falsification of a will which, sixteen months
before, had been probated in court. This complaint, after
investigation, was dismissed at the complainant's own request.
The second arrest was made upon a complaint charging the
same offense and this complaint, too, was dismissed at the
behest of the complainant herself who alleged the quite startling
ground that the petitioner was in poor health. The third arrest
was made following the filing of an information by the provincial
fiscal of Pampanga, which information was dismissed, after due
investigation, because of insufficiency of the evidence. The
fourth arrest was made when the provincial fiscal secured a
reinvestigation of the case against the petitioner on the pretext
that he had additional evidence to present, although such
evidence does not appear to have ever been presented.
It is true that the provincial fiscal did not intervene in the case
until February 2, 1934, when he presented an information
charging the petitioner, for the third time, of the offense of
falsification. This, however, does not matter. The prosecution of
offenses is a matter of public interest and it is the duty of the
government or those acting in its behalf to prosecute all cases
to their termination without oppressive, capricious and vexatious
delay. The Constitution does not say that the right to a speedy
trial may be availed of only where the prosecution for crime is
commenced and undertaken by the fiscal. It does not exclude
from its operation cases commenced by private individuals.
Where once a person is prosecuted criminally, he is entitled to a
speedy trial, irrespective of the nature of the offense or the
manner in which it is authorized to be commenced. In any
event, even the actuations of the fiscal himself in this case is not
entirely free from criticism. From October 27, 1932, when the
first complaint was filed in the justice of the peace court of San
Fernando, to February 2, 1934, when the provincial fiscal filed
his information with the justice of the peace of Mexico, one year,
three months and six days transpired; and from April 27, 1933,
when the second criminal complaint was dismissed by the
justice of the peace of Mexico, to February 2, 1934, nine months
and six days elapsed. The investigation following the fourth
arrest, made after the fiscal had secured a reinvestigation of the
case, appears also to have dragged on for about a year. There
obviously has been a delay, and considering the antecedent
facts and circumstances within the knowledge of the fiscal, the
delay may not at all be regarded as permissible. In Kalaw vs.
Apostol, supra, we observed that the prosecuting officer all
prosecutions for public offenses (secs. 1681 and 2465 of the
Rev. Adm. Code), and that it is his duty to see that criminal
cases are heard without vexatious, capricious and oppressive
delays so that the courts of justice may dispose of them on the
merits and determine whether the accused is guilty or not. This
is as clear an admonition as could be made. An accused person
is entitled to a trial at the earliest opportunity. (Sutherland on the
Constitution, p. 664; United States vs. Fox, 3 Mont., 512.) He
cannot be oppressed by delaying he commencement of trial for
an unreasonable length of time. If the proceedings pending trial
are deferred, the trial itself is necessarily delayed. It is not to be
supposed, of course, that the Constitution intends to remove
from the prosecution every reasonable opportunity to prepare
for trial. Impossibilities cannot be expected or extraordinary
efforts required on the part of the prosecutor or the court. As
stated by the Supreme Court of the United States, "The right of
a speedy trial is necessarily relative. It is consistent with delays
and depends upon circumstances. It secures rights to a
defendant. It does not preclude the rights of public justice."
(Beavers vs. Haubert [1905], 198 U. S., 86; 25 S. Ct., 573; 49
Law. ed., 950, 954.).
It may be true, as seems admitted by counsel for the
intervenors, in paragraph 8, page 3 of his brief, that the delay
was due to "the efforts towards reaching an amicable
extrajudicial compromise," but this fact, we think, casts doubt
instead upon the motive which led the intervenors to bring
criminal action against the petitioner. The petitioner claims that
the intention of the intervenors was to press upon settlement,
with the continuous threat of criminal prosecution,
notwithstanding the probate of the will alleged to have been
falsified. Argument of counsel for the petitioner in this regard is
not without justification. Thus after the filing of the second
complaint with the justice of the peace court of Mexico,
complainant herself, as we have seen, asked for dismissal of
the complaint, on the ground that "el acusado tenia la salud
bastante delicada," and, apparently because of failure to arrive
at any settlement, she decided to renew her complaint.
Counsel for the intervenors contend and the contention is
sustained by the Court of Appeals that the petitioner did not
complain heretofore of the denial of his constitutional right to a
speedy trial. This is a mistake. When the petitioner, for the
fourth time, was ordered arrested by the Court of First Instance
of Pampanga, he moved for reconsideration of the order of
arrest, alleging, among other things, "Que por estas continuas
acusaciones e investigaciones, el acusado compareciente no
obstante su mal estado de salud desde el ao 1932 en que tuvo
que ser operado por padecer de tuberculosis ha tenido que
sostener litigios y ha sufrido la mar de humiliaciones y zozobras
y ha incudo en enormes gastos y molestias y ha desatendido su
quebrantada salud." The foregoing allegation was inserted on
page 6 of the amended petition for certiorari presented to the
Court of Appeals. The constitutional issue also appears to have
been actually raised and considered in the Court of Appeals. In
the majority opinion of that court, it is stated:
Upon the foregoing facts, counsel for the petitioner
submits for the consideration of this court the following
questions of law: First, that the respondent court acted
arbitrarily and with abuse of its authority, with serious
damage and prejudice to the rights and interests of the
petitioner, in allowing that the latter be prosecuted and
arrested for the fourth time, and that he be subjected,
also for the fourth time, to a preliminary investigation
for the same offense, hereby converting the court into
an instrument of oppression and vengeance on the
part of the alleged offended parties, Rosario Basa et
al.; . . . .
And in the dissenting opinion, we find the following opening
paragraph:
We cannot join in a decision declining to stop a
prosecution that has dragged for about five years and
caused the arrest on four different occasions of a law
abiding citizen for the alleged offense of falsifying a will
that years be competent jurisdiction.
From the view we take of the instant case, the petitioner is
entitled to have the criminal proceedings against him quashed.
The judgment of the Court of Appeals is hereby reversed,
without pronouncement regarding costs. So ordered.
Avancea, C.J., Villa-Real, Imperial, Diaz and Concepcion,
JJ., concur.
G.R. No. 95329 January 27, 1993 Cadastral Record No. 229)
with the buildings and
HERACIO R. REVILLA, petitioner, improvements now found
vs. thereon, situated on the
HON. COURT OF APPEALS, FORTUNATO REVILLA, LUZ SW. line of Calle
REVILLA DAVID, LORETO REVILLA GUTIERREZ, Azcarraga; District of
VENERANDA REVILLA MANIQUEZ, NICASIO REVILLA, Quiapo. . . . containing an
PERFECTA REVILLA BALACANIA, JUSTINA REVILLA DEL area of SEVEN HUNDRED
ROSARIO and AGRIPINA REVILLA CHACON, respondents. SQUARE METERS AND
SEVENTY SQUARE
DECIMETERS (700.70),
Manahan, Conrado De Vera, Aquino & Associates Law Offices MORE OR LESS.
for petitioner.
Assessed value
Abad, Bautista & Associates for private respondents. P3,297,150.00

c) TRANSFER CERTIFICATE OF TITLE NO.

T-192136 REGISTRY OF DEEDS FOR THE
GRIO-AQUINO, J.: PROVINCE OF BULACAN

This is a petition for review of the decision dated September 13, A parcel of land (Lot 1245-
1990 of the Court of Appeals in CA-G.R. CV No. 18190 A-6 of the subd. plan (LRC)
affirming the decision of the Regional Trial Court of Manila, Psd-177051, being a
Branch 39, in Special Proceeding No. 86-38444 which portion of Lot 1245-A, Psd-
disallowed the second will supposedly executed on September 11366, LRC Cad. Rec. No.
13, 1982 by the late Don Cayetano Revilla whose first Will dated 700), situated in the Barrio
January 28, 1978 had been probated on March 21, 1980 on his of Salacot, Mun. of San
own petition in Special Proceeding No. 128828 of the same Miguel, Prov. of Bulacan,
court, while he was still alive. Island of Luzon. . . .
containing an area of TEN
In our resolution of November 19, 1990, we denied the petition THOUSAND (10,000)
for review for it raises only factual issues. However, upon the SQUARE METERS, more
petitioner's motion for reconsideration, we set aside that or less.
resolution and gave due course to the petition so that the parties
may argue their respective positions with more depth and Assessed value
scope. After a more thorough consideration of those arguments, P4.000.00
we are persuaded that the decision of the Court of Appeals
should not be changed. d) TRANSFER CERTIFICATE OF TITLE NO.
T-192137 REGISTRY OF DEEDS FOR THE
Don Cayetano Revilla y De la Fuente owned two valuable PROVINCE OF BULACAN
pieces of land with buildings on Calle Azcarraga (now C.M.
Recto Street) in the City of Manila, and six (6) parcels of land in A parcel of land [Lot 1245-
his hometown of San Miguel, Bulacan. These properties, now A-7 of the subd. plan (LRC)
worth some P30 million, are registered in his name and more Psd-177051, being a
particularly described as follows: portion of Lot 1245-A, Psd-
11366, LRC Cad. Rec. No.
a) TRANSFER CERTIFICATE OF TITLE NO. 700], situated in the Barrio
76620 (not TCT No. 170750-ind.) REGISTRY of Salacot, Mun. of San
OF DEEDS FOR THE CITY OF MANILA Miguel, Prov. of Bulacan,
Island of Luzon, . . .
A PARCEL OF LAND (Lot. containing an area of
No. 22 of Block No. 2565 of SEVEN THOUSAND
the Cadastral Survey of the EIGHT HUNDRED NINETY
City of Manila, Cadastral (7,890) SQUARE METERS,
Case No. 46, G.L.R.O. more or less.
Cadastral Record No. 229)
with the buildings and other Assessed value
improvements now found P3,790.00
thereon, situated on the
SW, line of Calle e) TRANSFER CERTIFICATE OF TITLE NO.
Azcarraga, District of T-22049 REGISTRY OF DEEDS FOR THE
Quiapo, . . . containing an PROVINCE OF BULACAN
area of ONE THOUSAND
ONE HUNDRED NINETY
THREE SQUARE METERS A parcel of land (Lot 1245-
AND SEVENTY SQUARE A-9 of the subd. plan (LRC)
DECIMETERS (1,193.70), Psd-177051, being a
more or less, Assessed portion of Lot 1245-A, Psd-
value P1,834,980.00. 11366, LRC Cad. Rec. No.
700), situated in the Barrio
of Salacot, Municipality of
b) TRANSFER CERTIFICATE OF TITLE NO. San Miguel, Prov. of
66173 (now TCT No. 170751-ind.) Bulacan, . . . containing an
REGISTRY OF DEEDS FOR THE CITY OF area of ONE THOUSAND
MANILA FIVE HUNDRED
FOURTEEN (1,514)
A PARCEL OF LAND ( Lot SQUARE METERS, more
No. 24 of Block No. 2565 of or less.
the Cadastral Survey of the
City of Manila, Cadastral
Case No. 46, G.L.R.O.
 Assessed value
P4,000.00
f) TRANSFER CERTIFICATE OF TITLE NO.
22263 REGISTRY OF DEEDS FOR THE
PROVINCE OF BULACAN
A parcel of land (Lot No.
722 of the Cadastral Survey
of San Miguel), situated in
the Municipality of San
Miguel. . . . containing an
area of SEVENTEEN
THOUSAND AND EIGHTY
SIX (17,086) SQUARE
METERS, more or less.
Assessed value
P4,190.00
g) TRANSFER CERTIFICATE OF TITLE NO.
T-242301 REGISTRY OF DEEDS FOR THE
PROVINCE OF BULACAN
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 or
less.
Assessed value
P8,600.00
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 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 masses to be said after his
death, and for the care of the religious images which he kept in
a chapel in San Miguel, Bulacan, where masses could be held
also (p. 126, Records).
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 Proceeding No.
128828 also went up in flames. Shortly thereafter, a petition for
the reconstitution of the records of Special Proceeding No.
128828 was filed, and after a proper hearing wherein Don
Cayetano testified again, the petition for reconstitution was
granted. (Exh. "34"). (pp. 51-52, 179, Rollo.)
Don Cayetano died on November 11, 1986 at the age of 91.
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
grounds for their opposition, they alleged:
. . . a) that on March 21, 1980 in Special
Proceeding No. 128828, the then Court of
First Instance of Manila, Branch 10, allowed
and admitted to probate the last will and
testament of the deceased Cayetano Revilla
and that since then and up to the time of his
death, Cayetano Revilla never informed 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 executed with undue and
improper pressure and influence on the part
of he 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 influence of fear
or of threats; and f) that the decedent acted
by mistake and the signatures in the alleged
will were procured by fraud or trick, and he did
not intend 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).
The private respondents also opposed Heracio's petition for
appointment as executor and/or special administrator of the
estate on the ground that the alleged will is null and void, hence
the designation therein of Heracio as executor is likewise null
and void, and that moreover, he is unfit for the trust (pp. 9-12.
Records).
In an order dated May 7, 1987, the lower court held in abeyance
the resolution of the issue with regard to 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.
The lone issue in this case is whether the Court of Appeals (and
the trial court) erred in disallowing the alleged second will of
Don Cayetano Revilla.
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 on 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.
ATTY. DAVID
 May I request that this letter
dated October 21, 1982, be
marked Exhibit "C" . . .
xxx xxx xxx
By the way Mr. Revilla, will
you tell us whether you can
still read when you signed
this letter?
A Yes, I can.
Q Did you read the
contents of this letter?
A Yes, I did.
Q When you were sick,
before you signed this letter
on October 21, 1982, were
you confined at the
hospital?
A Yes.
Q How long were you
confined at the hospital,
was it for one month?
A More than one month,
may be two months.
Q When you were in the
hospital you cannot sign
because you were sick?
A No, I cannot sign.
xxx xxx xxx
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?
A None, sir. (pp. 20-30,
tsn, November 27, 1982.)
He recognized the original will and acknowledged that he signed
it.
ATTY. DAVID
. . . we were granted by the
Court permission to come
here to find out from you
about your will approved by
the Court which was burned
which needs to be
reconstituted which Atty.
Dacanay undertook as your
counsel and I was included
because your heirs
requested me, . . . Since
the documents were
burned, we have here a
brown envelope which
states on its face "Buksan
ito pagkalibing ko" then a
signature Cayetano Revilla
that one in the Court
which was approved by the
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?
xxx xxx xxx
Q And at the back of this
envelope are four
signatures, are these your
signatures?
A (Looking over the four
signatures at the back of
the envelope) Yes, these
are all my signatures.
Q And your instructions
were to open this envelope
. . . "Buksan ito pagkalibing
ko."
A Yes, that is right.
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 testament is
what will prevail?
A Yes, sir. (pp. 119-
120, Rollo; Emphasis ours.)
He identified his first will and directed Atty. David to deliver it to
the Court: "siyang ibigay sa husgado" (p. 122. Rollo).
ATTY. DAVID
Now that I have told you in
the presence of your
grandson-in-law, Atty.
Latosa, that the last will and
testament which the court
admitted and allowed to
probate was burned, why I
asked you if this is the
envelope and you
remember this is the
envelope and you said you
do, and that the five
signatures appearing in this
envelope are your
signatures, now are you
willing to have this envelope
opened?
A Yes, kung anong
nandiyan, siyang ibigay sa
husgado. (p. 122, Rollo.)
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."
ATTY. DAVID
 Do you want to open this
now?
A Yes.
Q Do you wish to open
this envelope now?
A Yes, I want to open it
now.
(p. 23, Rollo.)
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 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.
Q And all 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.)
He recognized himself and his lawyer, Attorney Benjamin
Dacanay, in the pictures that were taken during the signing of
his first will.
Q Now, in this envelope
there are pictures five
pictures in all, will you go
over these and tell us if you
can remember any of those
persons appearing in the
pictures?
A This one, (testator
pointing to a person in the
picture) is Mr. Dacanay.
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?
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.)
Don Cayetano assured Attorney David that his original will was
his "genuine will and testament and not changed" (p.
134, Rollo).
ATTY. DAVID
xxx xxx xxx
We are doing this Mr.
Revilla because in case
there will be an opposition
to this last will and
testament we can prove
that this is the genuine will
and testament and not
changed.
A Yes, that is true sir,
that is the truth. (p.
134, Rollo.)
He declared that he did not execute another last will and
testament after the original will had been probated.
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?
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 he did not execute another will, was
not negative evidence. Evidence is negative when the witness
states that he did not see or know the occurrence of a fact, and
positive when the witness affirms that a fact did or did not occur
(2 Moore an Facts,
p 1338). Don Cayetano's declaration that he did not execute a
second will, constitutes positive evidence of a fact personally
known to himself: that he did not make a second will. As
correctly held by the Court of Appeals:
This categorical denial by the late Cayetano
Revilla must be believed by everybody. If he
denied having executed another will, who are
we to insist that he made another or second
will after the probate of his will dated January
28, 1978? The testimonies of the alleged
notary public as well as the three instrumental
witnesses of the alleged second will of the
late Cayetano Revilla cannot outweigh the
denial of the late Cayetano Revilla. . . . . (p.
95, 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 the reconstitution proceeding. Why was the
second will kept under wraps? Did Heracio fear that if Don
Cayetano were confronted with the document, he would have
disowned it? The explanation of the petitioner that an inquiry
into the existence of the second will "was totally uncalled for,
immaterial, and irrelevant" (p. 96, Rollo), is unconvincing. For if
the second will already existed on November 27, 1982, it would
have been Heracio's strongest argument against the
reconstitution of the probate of the first will.
The petitioner's argument that Don Cayetano's testimony is
inadmissible because petitioner's counsel, Attorney Layosa, had
no opportunity to
cross-examine him (p. 146, Rollo), does not wash. The
opportunity was there all the time. Attorney Layosa simply made
no attempt to exercise his right to
cross-examine Don Cayetano.
If Don Cayetano's testimony was "an honest mistake due to a
misapprehension of fact" as the petitioner 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.
Even the letter that Don Cayetano supposedly sent to the court
disowning the petition for reconstitution of the records of the first
probate proceeding, did not disclose that he had already made
another will. As pointedly observed by the Court of Appeals, if
Don Cayetano were aware that he made a second will, he
"could have easily told the Court that the reconstitution
proceeding was useless" because he had already made a
second will revoking the first
(pp. 54-55, Rollo).
The testimonies of the notary and attesting witnesses and even
the photographs of what purported to be the signing of the
second will were not given credit by the trial court and the Court
of Appeals. The court's observation that the photographs do not
show the nature of the document that was being signed, 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. CA., 139 SCRA 576; People vs. Cabanit, 139 SCRA
94).
Since the execution of the second will could not have occurred
on the date (September 13, 1982) appearing therein (for Don
Cayetano was admittedly sick in the hospital then) it must have
been procured at the time when the testator was a virtual
prisoner, held incommunicado, in his house. The 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 his second will.
Despite Judge Bengzon's order, Heracio did not cease his
efforts to monopolize Don Cayetano and his estate. To isolate
Don Cayetano and make him inacessible to the private
respondents, Heracio transferred him from his own house on
Claro M. Recto Avenue in Manila to Heracio's house in
Novaliches, Quezon City.
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 Horacio 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.
There was fraud because Don Cayetano was not apprised that
the document he was signing with Co, Barredo and Lim was a
second will revoking the dispositions of property that he made in
his first will. Had he been aware that it was a second will, and if
it were prepared at his own behest, he would not have denied
that he made it. He would probably have caused it to be
probated while he was still alive, as he did with his first will.
But apparently, the instrument was foisted on him without his
being aware of its true nature which the petitioner assiduously
concealed, not only from the court and the private respondents,
but from Don Cayetano himself.
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 everything.
The objection to the deposition of Don Cayetano for want of an
oath before he testified, is tardy. Objection to the lack of an oath
should have been made at the taking of his deposition. Section
29(d), Rule 24 of the Rules of Court provides:
(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 agreed,
gave them low marks for credibility. The factual observations of
the Court of Appeals on this point are quoted below:
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 were
not given credit by the lower court, and so
with this Court, because of major
contradictions in testimonies.
As regards notary public Atty. Mendoza, the court a
quo doubted his credibility as follows:
The prevarications on the testimonies
of witnesses are not difficult to find
especially if we consider that in a
second meeting only with Don
Cayetano, Atty. Mendoza would
readily be entrusted with the 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)
before he gave it to the witnesses for their
signatures (tsn., Aug. 13, 1987, pp. 47, 52).
The above citations of the inconsistencies and
contradictions fatally made by said witnesses
are only some of the more important ones 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.

. . . Added to this is the statement of

Atty. Mendoza that the old man could
understood (sic) both English or
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 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 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, which spells a
whale of difference in time element
and enormously distanced from the
truth. So also, his exaggerated
demonstration of the ability of the old
man in answering even small children
yes, sir, is too good to be true. . . . .
(pp. 33-34, Decision, pp. 176-177,
Records).

Witness Dr. Co's testimony that he did not

charge the late Cayetano Revilla for two
services rendered by him and that he only
charged when a third service was made was
also doubted by the lower court. Said the
court a quo:

. . . witnesses Co, a practicing dentist

was munificent enough not to charge
Don Cayetano for two time services
and only charged him the 3rd time.

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
G.R. No. 139587 November 22, 2000
IN THE MATTER OF THE INTESTATE ESTATE OF
DECEASED ISMAEL REYES, THE HEIRS OF OSCAR R.
REYES, petitioners,
vs.
CESAR R. REYES, respondent.
DECISION
GONZAGA-REYES, J.:
In this petition for review on certiorari, petitioners seek to annul
the decision of the respondent Court of Appeals in CA-G.R. CV
No. 467611 which affirmed the Order2 dated January 26, 1994 of
the Regional Trial Court, Branch 96, Quezon City, in Special
Proceeding No. 89-2519, a petition for issuance of letters of
administration, and the resolution dated July 28, 1999 denying
their motion for reconsideration.3
Spouses Ismael Reyes and Felisa Revita Reyes are the
registered owners of parcels of land situated in Arayat Street,
Cubao, Quezon City covered by Transfer Certificates of Title
Nos. 4983 and 3598 (39303). The spouses have seven children,
namely: Oscar, Araceli, Herminia, Aurora, Emmanuel, Cesar
and Rodrigo, all surnamed Reyes.
On April 18, 1973, Ismael Reyes died intestate. Prior to his
death, Ismael Reyes was notified by the Bureau of Internal
Revenue (BIR) of his income tax deficiency which arose out of
his sale of a parcel land located in Tandang Sora, Quezon City.
For failure to settle his tax liability, the amount increased to
about P172,724.40 and since no payment was made by the
heirs of deceased Ismael Reyes, the property covered by TCT
No. 4983 was levied4 sold and eventually forfeited by the
Bureau of Internal Revenue in favor of the government.5
Sometime in 1976, petitioners predecessor Oscar Reyes
availed of the BIRs tax amnesty and he was able to redeem the
property covered by TCT No. 49836 upon payment of the
reduced tax liability in the amount of about P18,000. 7
On May 18, 1982, the Office of the City Treasurer of Quezon
City sent a notice to Felisa Revita Reyes informing her that the
Arayat properties will be sold at public auction on August 25,
1982 for her failure to settle the real estate tax delinquency from
1974-1981.8
On December 15, 1986, petitioners predecessor Oscar Reyes
entered into an amnesty compromise agreement with the City
Treasurer and settled the accounts of Felisa R. Reyes. 9
On May 10, 1989, private respondent Cesar Reyes, brother of
Oscar Reyes, filed a petition for issuance of letters of
administration with the Regional Trial Court of Quezon City
praying for his appointment as administrator of the estate of the
deceased Ismael Reyes which estate included 50% of the
Arayat properties covered by TCT Nos. 4983 and 3598. 10 Oscar
Reyes filed his conditional opposition thereto on the ground that
the Arayat properties do not form part of the estate of the
deceased as he (Oscar) had acquired the properties by
redemption and or purchase.11
The probate court subsequently issued letters of administration
in favor of Cesar Reyes where the latter was ordered to submit
a true and complete inventory of properties pertaining to the
estate of the deceased and the special powers of attorney
executed by the other heirs who reside in the USA and that of
Aurora Reyes-Dayot conforming to his appointment as
administrator.12 Cesar Reyes filed an inventory of real and
personal properties of the deceased which included the Arayat
properties with a total area of 1,009 sq. meters. 13 On the other
hand, Oscar Reyes filed his objection to the inventory reiterating
that the Arayat properties had been forfeited in favor of the
government and he was the one who subsequently redeemed
the same from the BIR using his own funds. 14
A hearing on the inventory was scheduled where administrator
Cesar Reyes was required to present evidence to establish that
the properties belong to the estate of Ismael Reyes and the
oppositor to adduce evidence in support of his objection to the
inclusion of certain properties in the inventory.15 After hearing
the parties respective arguments, the probate court issued its
Order dated January 26, 1994, the dispositive portion of which
reads:16
"WHEREFORE, pursuant to the foregoing findings, the Court
hereby modifies the inventory submitted by the administrator
and declares to belong to the estate of the late Ismael Reyes
the following properties, to wit:
1. One half (1/2) of the agricultural land located in
Montalban, Rizal containing an area of 31,054 square
meters, covered by TCT 72730 with an approximate
value of P405,270.00;
2. One half (1/2) of two (2) adjoining residential lots
located on Arayat Street, Cubao, Quezon City, with
total area of 1,009 square meters, more or less,
covered by TCTs No. 4983 AND 3598 (39303), with an
approximate value of P3,027,000.00; but this
determination is provisional in character and shall be
without prejudice to the outcome of any action to be
brought hereafter in the proper Court on the issue of
ownership of the properties; and,
3. The building constructed by and leased to Sonny
Bernardo and all its rental income from the inception of
the lease, whether such income be in the possession
of oppositor, in which case he is hereby directed to
account therefor, or if such income be still unpaid by
Bernardo, in which case the administrator should move
to collect the same.
Consistent with the foregoing things, either of the administrator
oppositor, or heir Felisa R. Reyes, in her personal capacity as
apparent co-owner of the Arayat Street properties, may
commence the necessary proper action for settling the issue of
ownership of such properties in the Regional Trial Court in
Quezon City and to inform the Court of the commencement
thereof by any of them as soon as possible.
The administrator is hereby directed to verify and check
carefully on whether other properties, particularly the real
properties allegedly situated in Montalban, Rizal; in Marikina,
Metro Manila (near Boys Town); and in Bulacan, otherwise
referred to as the Hi-Cement property truly pertained to the
estate; to determine their present condition and the status of
their ownership; and to render a report thereon in writing within
thirty (30) days from receipt of this Order.
The motion demanding for accounting to be done by oppositor
Oscar Reyes is hereby denied for being unwarranted, except
whatever incomes he might have received from Sonny
Bernardo, which he is hereby directed to turn over to the
administrator within thirty (30) days from finality of this Order.
A motion for reconsideration was filed by Oscar Reyes which
was denied in an Order dated May 30, 1994.17 He then filed his
appeal with the respondent Court of Appeals. While the appeal
was pending, Oscar died and he was substituted by his heirs,
herein petitioners.
On May 6, 1999, the respondent Court issued its assailed
decision which affirmed the probate courts order. It ruled that
the probate courts order categorically stated that the inclusion
of the subject properties in the inventory of the estate of the
deceased Ismael Reyes "is provisional in character and shall be
without prejudice to the outcome of any action to be brought
hereafter in the proper court on the issue of ownership of the
properties"; that the provisional character of the inclusion of the
contested properties in the inventory as stressed in the order is
within the jurisdiction of intestate court. It further stated that
although the general rule that question of title to property cannot
be passed upon in the probate court admits of exceptions, i.e. if
the claimant and all other parties having legal interest in the
property consent, expressly or impliedly, to the submission of
the question to the probate court for adjudication, such has no
application in the instant case since petitioner-appellee and
oppositor-appellant are not the only parties with legal interest in
the subject property as they are not the only heirs of the
decedent; that it was never shown that all parties interested in
the subject property or all the heirs of the decedent consented
to the submission of the question of ownership to the intestate
court.
Petitioners filed their motion for reconsideration which was
denied in a resolution dated July 28, 1999. Hence this petition
for review on certiorari alleging that the respondent Court erred
(1) in ruling that the court a quo correctly included one half (1/2)
of the Arayat properties covered by TCT Nos. 4983 and 3598
(39303) in the inventory of the estate of the deceased Ismael
Reyes (2) in upholding that the court a quo has no jurisdiction to
determine the issue of ownership.
Petitioners argue that a probate courts jurisdiction is not limited
to the determination of who the heirs are and what shares are
due them as regards the estate of a deceased person since the
probate court has the power and competence to determine
whether a property should be excluded from the inventory of the
estate or not, thus the Court a quo committed a reversible error
when it included the Arayat properties in the inventory of the
estate of Ismael Reyes despite the overwhelming evidence
presented by petitioner-oppositor Oscar Reyes proving his claim
of ownership. Petitioners contend that their claim of ownership
over the Arayat properties as testified to by their predecessor
Oscar Reyes was based on two (2) grounds, to wit (1) his
redemption of the Arayat properties and (2) the abandonment of
the properties by his co-heirs; that his act of redeeming the
properties from the BIR in 1976 and therefter from the City
Treasurer of Quezon City using his own funds have the effect of
vesting ownership to him. Petitioners claim that private
respondent is already barred from claiming the Arayat
properties since he only filed this petition 16 years after the
death of Ismael Reyes and after the prices of the real properties
in Cubao have already escalated tremendously.
We find no merit in this argument.
The jurisdiction of the probate court merely relates to matters
having to do with the settlement of the estate and the probate of
wills of deceased persons, and the appointment and removal of
administrators, executors, guardians and trustees.18 The
question of ownership is as a rule, an extraneous matter which
the Probate Court cannot resolve with finality. 19 Thus, for the
purpose of determining whether a certain property should or
should not be included in the inventory of estate proceeding, the
probate court may pass upon the title thereto, but such
determination is provisional, not conclusive, and is subject to the
final decision in a separate action to resolve title. 20
We find that the respondent Court did not err in affirming the
provisional inclusion of the subject properties to the estate of the
deceased Ismael Reyes without prejudice to the outcome of any
action to be brought thereafter in the proper court on the issue
of ownership considering that the subject properties are still
titled under the torrens system in the names of spouses Ismael
and Felisa Revita Reyes which under the law is endowed with
incontestability until after it has been set aside in the manner
indicated in the law.21 The declaration of the provisional
character of the inclusion of the subject properties in the
inventory as stressed in the order is within the jurisdiction of the
Probate Court.
Petitioners next claim that as an exception to the rule that the
probate court is of limited jurisdiction, the court has jurisdiction
to resolve the issue of ownership when the parties interested
are all heirs of the deceased and they submitted the question of
title to the property, without prejudice to third persons.
Petitioners allege that the parties before the probate court were
all the heirs of deceased Ismael Reyes and they were allowed
to present evidence proving ownership over the subject
properties, thus private respondent cannot argue that he did not
in any way consent to the submission of the issue of ownership
to the probate court as the records of this case is replete with
evidence that he presented evidence in an attempt to prove
ownership of the subject properties.
We are not persuaded.
Settled is the rule that the Regional Trial Court acting as a
probate court exercises but limited jurisdiction, thus it has no
power to take cognizance of and determine the issue of title to
property claimed by a third person adversely to the decedent,
unless the claimant and all other parties having legal interest in
the property consent, expressly or impliedly, to the submission
of the question to the Probate Court for adjudgment, or the
interests of third persons are not thereby prejudiced. 22
The facts obtaining in this case, however, do not call for the
application of the exception to the rule. It bears stress that the
purpose why the probate court allowed the introduction of
evidence on ownership was for the sole purpose of determining
whether the subject properties should be included in the
inventory which is within the probate courts competence. Thus,
when private respondent Cesar Reyes was appointed as
administrator of the properties in the courts Order dated July
26, 1989, he was ordered to submit a true inventory and
appraisal of the real and personal properties of the estate which
may come into his possession or knowledge which private
respondent complied with. However, petitioner Oscar Reyes
submitted his objection to the inventory on the ground that it
included the subject properties which had been forfeited in favor
of the government on April 21, 1975 and which he subsequently
redeemed on August 19, 1976. The Court resolved the
opposition as follows:
At the hearing today of the pending incidents, it was agreed that
the said incidents could not be resolved without introduction of
evidence.
Accordingly, the hearing on the inventory of real and personal
properties is hereby set on April 24, 1990 at 10:00 A.M. at which
date and time the petitioner/administrator shall be required to
present evidence to establish that the properties stated in the
inventory belong to the estate of Ismael Reyes. The oppositor
shall thereafter adduce his evidence in support of his objection
to the inclusion of certain properties of the estates in the
inventory.
Notably, the Probate Court stated, from the start of the hearing,
that the hearing was for the merits of accounting and inventory,
thus it had jurisdiction to hear the opposition of Oscar Reyes to
the inventory as well as the respective evidence of the parties to
determine for purposes of inventory alone if they should be
included therein or excluded therefrom. In fact, the probate court
in its Order stated that "for resolution is the matter of the
inventory of the estate, mainly to consider what properties
should be included in the inventory and what should not be
included." There was nothing on record that both parties
submitted the issue of ownership for its final resolution. Thus the
respondent Court did not err in ruling that the trial court has no
jurisdiction to pass upon the issue of ownership conclusively.
In fact, the probate court, aware of its limited jurisdiction
declared that its determination of the ownership was merely
provisional and suggested that either the administrator or the
widow Felisa Reyes may commence the proper action in the
Regional Trial Court. Moreover, the court admitted that it was
not competent to pass upon the ownership of the subject
properties, thus:
"Although the testimony of the oppositor should have greater
persuasive value than that of the petitioner/administrator, mainly
because it agrees closely with the recitals of facts found in the
several public documents submitted as evidence in this case
and is corroborated to the greatest extent by the fact that the
properties were, indeed, abandoned in his possession since
1975 until the present, his alleged ownership of the Arayat
Street properties cannot still be sustained in a manner which
would warrant their exclusion from the administrators inventory.
"To begin with, there are portions in the records which show that
the oppositor himself was somehow uncertain about his rights
on the properties and the basis therefor. During his cross-
examination (tsn, Oct. 4, 1991), he gave the following
statements:
xxx xxx xxx
(Atty. Habitan)
Q: And if we will add the other taxes you have paid, (you) are
now claiming to be the owner of the Arayat property because
you have paid all these taxes?
A: The amounts I have paid and all the expenses I have and if I
had not paid all these amounts the property in question
would have been lost, sir.
Q: So, in effect, you are now claiming ownership over the
property, I want a categorical answer, Mr. Witness?
A: If I am going to sum up all these expenses, my share in the
Hi-Cement property, my share in the Bulacan property, the
amount of the property in Cubao is small and also all my
sufferings because of the property in Cubao, this cannot be paid
in terms of money, sir. (tsn, Oct. 4, 1991, pp. 10-12)
"On re-direct examination (tsn, Sept. 18, 1992), he clarified his
statements as follows:
xxx xxx xxx
(Atty, Javellana)
Q: Mr. Reyes, on cross-examination, you were asked by the
petitioners counsel whether because you had paid the BIR
P17,872.44 you are now claiming to be the owner of the
property in Arayat Street to which you answered no, will you
explain your answer?
A: When I paid almost P18,000.00, it does not mean that I claim
the property already; on the contrary, I have my own reasons
to claim it now on other conditions which are the following:
number one, there was a levy by the BIR on the property, it was
forfeited due to delinquency of real estate taxes; number two,
for abandonment, when my mother, brother(s) and sisters left
the property, they told me it is my problem and I should take
care of it. Number three, the disposition, my mother, my
brothers and sisters sold the property of my father, the Hi-
Cement and the property in Visayas Street without giving my
share. And another thing I have to sell my own property, my
own assets so that I can redeem from the BIR the Arayat
property and which I did with my personal funds, and number
five, nobody helped me in my problems regarding those
properties, I was alone and so I felt that the property in Arayat is
mine.
xxx xxx xxx
(tsn, Sept. 18, 1992, pp. 2-3)
Notwithstanding his clarifying statements on redirect
examination, the impression of the Court on the issue is not
entirely favorable to him. Apart from the absence of a specific
document of transfer, the circumstances and factors he gave
may not suffice in and by themselves to convey or transfer title,
for, at best, they may only be the basis of such transfer. They
may be considered as proof of the intention to dispose in his
favor or as evidence of a set off among the heirs, which seems
to be what he has in mind. There might also be substance in his
assertions about the abandonment in his favor, which, if raised
in the proper action, could constitute either prescription or
laches. It is hardly needed to stress, therefore, that more than
these are required to predicate the exclusion of the properties
from the inventory.
Another obtrusive reality stands out to invite notice: the BIR
levy was only made on the property covered in TCT 4983
and did not include the property covered in TCT 3598
(39303). This somehow detracts from the logic of the oppositors
assertion of ownership of the entire Arayat Street properties;
even if his assertion is valid and true, it can encompass, at
most, only the property subject of the BIRs levy and declaration
of forfeiture (i.e., TCT 4983), not the property covered by TCT
3598 (39303).1vvph!1
These pronouncements should not by any means diminish or
deprive the oppositor of whatever rights or properties he
believes or considers to be rightfully his. Although the
circumstances and factors he has given to the Court herein may
have legal consequences that could have defeated opposing-
claims and rendered oppositors claim on the properties
unassailable, this Courts competence to adjudicate thus in this
proceedings is clearly non-existent. In Baybayan vs.
Aquino (149 SCRA 186), it was held that the question of
ownership of a property alleged to be part of the estate must be
submitted to the Regional Trial Court in the exercise of its
general jurisdiction.
This ruling then, cannot be a final adjudication on the present
and existing legal ownership of the properties. Whatever is
declared herein ought not to preclude oppositor from
prosecuting an ordinary action for the purpose of having his
claims or rights established over the properties. If he still cares
hereafter to prosecute such claim of ownership adversely to the
estate and the apparent co-owner, his mother Felisa. As stated
in Valera, et al. vs. Judge Inserto, et al. (149 SCRA 533), this
Court, acting as a probate court, exercises but limited
jurisdiction; accordingly, its determination that property should
be included in the inventory or not is within its probate
jurisdiction, but such determination is only provisional in
character, not conclusive, and is subject to the final decision in a
separate action that may be instituted by the parties."
xxx xxx xxx
The aforecited findings clarify that there were several reasons
for having the issue of ownership ventilated elsewhere. Apart
from the fact that only one-half of the two lots known as the
Arayat property (i.e., the half that could pertain to the estate)
could be settled herein, there was the realization that the
evidence adduced so far (including that bearing on the
oppositors basis for excluding from the estate the property) was
inadequate or otherwise inconclusive.
A practical way of looking at the problem is that this Court,
sitting herein as an intestate court, does not consider itself
competent to rule on the ownership of the entire Arayat
property."
Finally, anent private respondents allegation that the instant
petition was filed one day late, hence should be dismissed, we
find the same to be devoid of merit. Petitioners received copy of
the decision denying their motion for reconsideration on August
13, 1999, thus they have until August 28, 1999 within which to
file petition for review. Petitioners filed their motion for extension
on August 27, 1999 praying for 30 days extension from August
28, 1999 or until September 27, 1999 to file their petition which
this Court granted. Petitioners filed their petition on September
27, 1999, which is within the period given by the Court.
WHEREFORE, premises considered, the petition for review is
DENIED.
SO ORDERED.
G.R. No. 157451 December 16, 2005
LETICIA VALMONTE ORTEGA, Petitioner,
vs.
JOSEFINA C. VALMONTE, Respondent.
DECISION
PANGANIBAN, J.:
The law favors the probate of a will. Upon those who oppose it
rests the burden of showing why it should not be allowed. In the
present case, petitioner has failed to discharge this burden
satisfactorily. For this reason, the Court cannot attribute any
reversible error on the part of the appellate tribunal that allowed
the probate of the will.
The Case
Before the Court is a Petition for Review 1 under Rule 45 of the
Rules of Court, seeking to reverse and set aside the December
12, 2002 Decision2 and the March 7, 2003 Resolution3 of the
Court of Appeals (CA) in CA-GR CV No. 44296. The assailed
Decision disposed as follows:
"WHEREFORE, the appeal is GRANTED, and the Decision
appealed from is REVERSED and SET ASIDE. In its place
judgment is rendered approving and allowing probate to the said
last will and testament of Placido Valmonte and ordering the
issuance of letters testamentary to the petitioner Josefina
Valmonte. Let this case be remanded to the court a quo for
further and concomitant proceedings."4
The assailed Resolution denied petitioners Motion for
Reconsideration.
The Facts
The facts were summarized in the assailed Decision of the CA,
as follows:
"x x x: Like so many others before him, Placido toiled and lived
for a long time in the United States until he finally reached
retirement. In 1980, Placido finally came home to stay in the
Philippines, and he lived in the house and lot located at #9200
Catmon St., San Antonio Village, Makati, which he owned in
common with his sister Ciriaca Valmonte and titled in their
names in TCT 123468. Two years after his arrival from the
United States and at the age of 80 he wed Josefina who was
then 28 years old, in a ceremony solemnized by Judge Perfecto
Laguio, Jr. on February 5, 1982. But in a little more than two
years of wedded bliss, Placido died on October 8, 1984 of a
cause written down as COR PULMONALE.
"Placido executed a notarial last will and testament written in
English and consisting of two (2) pages, and dated June 15,
1983 but acknowledged only on August 9, 1983. The first page
contains the entire testamentary dispositions and a part of the
attestation clause, and was signed at the end or bottom of that
page by the testator and on the left hand margin by the three
instrumental witnesses. The second page contains the
continuation of the attestation clause and the acknowledgment,
and was signed by the witnesses at the end of the attestation
clause and again on the left hand margin. It provides in the body
that:
LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN
THE NAME OF THE LORD AMEN:
I, PLACIDO VALMONTE, of legal age, married to Josefina
Cabansag Valmonte, and a resident of 9200 Catmon Street,
Makati, Metro Manila, 83 years of age and being of sound and
disposing mind and memory, do hereby declare this to be my
last will and testament:
1. It is my will that I be buried in the Catholic Cemetery, under
the auspices of the Catholic Church in accordance with the rites
and said Church and that a suitable monument to be erected
and provided my by executrix (wife) to perpetuate my memory in
the minds of my family and friends;
2. I give, devise and bequeath unto my loving wife, JOSEFINA
C. VALMONTE, one half (1/2) portion of the follow-described
properties, which belongs to me as [co-owner]:
a. Lot 4-A, Block 13 described on plan Psd-28575, LRC,
(GLRO), situated in Makati, Metro Manila, described and
covered by TCT No. 123468 of the Register of Deeds of Pasig,
Metro-Manila registered jointly as co-owners with my deceased
sister (Ciriaca Valmonte), having share and share alike;
b. 2-storey building standing on the above-described property,
made of strong and mixed materials used as my residence and
my wife and located at No. 9200 Catmon Street, Makati, Metro
Manila also covered by Tax Declaration No. A-025-00482,
Makati, Metro-Manila, jointly in the name of my deceased sister,
Ciriaca Valmonte and myself as co-owners, share and share
alike or equal co-owners thereof;
3. All the rest, residue and remainder of my real and personal
properties, including my savings account bank book in USA
which is in the possession of my nephew, and all others
whatsoever and wherever found, I give, devise and bequeath to
my said wife, Josefina C. Valmonte;
4. I hereby appoint my wife, Josefina C. Valmonte as sole
executrix of my last will and testament, and it is my will that said
executrix be exempt from filing a bond;
IN WITNESS WHEREOF, I have hereunto set my hand this
15th day of June 1983 in Quezon City, Philippines.
"The allowance to probate of this will was opposed by Leticia on
the grounds that:
1. Petitioner failed to allege all assets of the testator, especially
those found in the USA;
2. Petitioner failed to state the names, ages, and residences of
the heirs of the testator; or to give them proper notice pursuant
to law;
3. Will was not executed and attested as required by law and
legal solemnities and formalities were not complied with;
4. Testator was mentally incapable to make a will at the time of
the alleged execution he being in an advance sate of senility;
5. Will was executed under duress, or the influence of fear or
threats;
6. Will was procured by undue and improper influence and
pressure on the part of the petitioner and/or her agents and/or
assistants; and/or
7. Signature of testator was procured by fraud, or trick, and he
did not intend that the instrument should be his will at the time of
affixing his signature thereto;
and she also opposed the appointment as Executrix of Josefina
alleging her want of understanding and integrity.
"At the hearing, the petitioner Josefina testified and called as
witnesses the notary public Atty. Floro Sarmiento who prepared
and notarized the will, and the instrumental witnesses spouses
Eugenio Gomez, Jr. and Feliza Gomez and Josie Collado. For
the opposition, the oppositor Leticia and her daughter Mary
Jane Ortega testified.
"According to Josefina after her marriage with the testator they
lived in her parents house at Salingcob, Bacnotan, La Union but
they came to Manila every month to get his $366.00 monthly
pension and stayed at the said Makati residence. There were
times though when to shave off on expenses, the testator would
travel alone. And it was in one of his travels by his lonesome
self when the notarial will was made. The will was witnessed by
the spouses Eugenio and Feliza Gomez, who were their
wedding sponsors, and by Josie Collado. Josefina said she had
no knowledge of the existence of the last will and testament of
her husband, but just serendipitously found it in his attache case
after his death. It was only then that she learned that the
testator bequeathed to her his properties and she was named
the executrix in the said will. To her estimate, the value of
property both real and personal left by the testator is worth more
or less P100,000.00. Josefina declared too that the testator
never suffered mental infirmity because despite his old age he
went alone to the market which is two to three kilometers from
their home cooked and cleaned the kitchen and sometimes if
she could not accompany him, even traveled to Manila alone to
claim his monthly pension. Josefina also asserts that her
husband was in good health and that he was hospitalized only
because of a cold but which eventually resulted in his death.
"Notary Public Floro Sarmiento, the notary public who notarized
the testators will, testified that it was in the first week of June
1983 when the testator together with the three witnesses of the
will went to his house cum law office and requested him to
prepare his last will and testament. After the testator instructed
him on the terms and dispositions he wanted on the will, the
notary public told them to come back on June 15, 1983 to give
him time to prepare it. After he had prepared the will the notary
public kept it safely hidden and locked in his drawer. The
testator and his witnesses returned on the appointed date but
the notary public was out of town so they were instructed by his
wife to come back on August 9, 1983, and which they did.
Before the testator and his witnesses signed the prepared will,
the notary public explained to them each and every term thereof
in Ilocano, a dialect which the testator spoke and understood.
He likewise explained that though it appears that the will was
signed by the testator and his witnesses on June 15, 1983, the
day when it should have been executed had he not gone out of
town, the formal execution was actually on August 9, 1983. He
reasoned that he no longer changed the typewritten date of
June 15, 1983 because he did not like the document to appear
dirty. The notary public also testified that to his observation the
testator was physically and mentally capable at the time he
affixed his signature on the will.
"The attesting witnesses to the will corroborated the testimony
of the notary public, and testified that the testator went alone to
the house of spouses Eugenio and Feliza Gomez at GSIS
Village, Quezon City and requested them to accompany him to
the house of Atty. Floro Sarmiento purposely for his intended
will; that after giving his instructions to Atty. Floro Sarmiento,
they were told to return on June 15, 1983; that they returned on
June 15, 1983 for the execution of the will but were asked to
come back instead on August 9, 1983 because of the absence
of the notary public; that the testator executed the will in
question in their presence while he was of sound and disposing
mind and that he was strong and in good health; that the
contents of the will was explained by the notary public in the
Ilocano and Tagalog dialect and that all of them as witnesses
attested and signed the will in the presence of the testator and
of each other. And that during the execution, the testators wife,
Josefina was not with them.
"The oppositor Leticia declared that Josefina should not inherit
alone because aside from her there are other children from the
siblings of Placido who are just as entitled to inherit from him.
She attacked the mental capacity of the testator, declaring that
at the time of the execution of the notarial will the testator was
already 83 years old and was no longer of sound mind. She
knew whereof she spoke because in 1983 Placido lived in the
Makati residence and asked Leticias family to live with him and
they took care of him. During that time, the testators physical
and mental condition showed deterioration, aberrations and
senility. This was corroborated by her daughter Mary Jane
Ortega for whom Placido took a fancy and wanted to marry.
"Sifting through the evidence, the court a quo held that [t]he
evidence adduced, reduces the opposition to two grounds,
namely:
1. Non-compliance with the legal solemnities and formalities in
the execution and attestation of the will; and
2. Mental incapacity of the testator at the time of the execution
of the will as he was then in an advanced state of senility
"It then found these grounds extant and proven, and accordingly
disallowed probate."5
Ruling of the Court of Appeals
Reversing the trial court, the appellate court admitted the will of
Placido Valmonte to probate. The CA upheld the credibility of
the notary public and the subscribing witnesses who had
acknowledged the due execution of the will. Moreover, it held
that the testator had testamentary capacity at the time of the
execution of the will. It added that his "sexual exhibitionism and
unhygienic, crude and impolite ways"6 did not make him a
person of unsound mind.
Hence, this Petition.7
Issues
Petitioner raises the following issues for our consideration:
"I.
Whether or not the findings of the probate court are entitled to
great respect.
"II.
Whether or not the signature of Placido Valmonte in the subject
will was procured by fraud or trickery, and that Placido Valmonte
never intended that the instrument should be his last will and
testament.
"III.
Whether or not Placido Valmonte has testamentary capacity at
the time he allegedly executed the subject will."8
In short, petitioner assails the CAs allowance of the probate of
the will of Placido Valmonte.
This Courts Ruling
The Petition has no merit.
Main Issue:
Probate of a Will
At the outset, we stress that only questions of law may be raised
in a Petition for Review under Section 1 of Rule 45 of the Rules
of Court. As an exception, however, the evidence presented
during the trial may be examined and the factual matters
resolved by this Court when, as in the instant case, the findings
of fact of the appellate court differ from those of the trial court. 9
The fact that public policy favors the probate of a will does not
necessarily mean that every will presented for probate should
be allowed. The law lays down the procedures and requisites
that must be satisfied for the probate of a will. 10 Verily, Article
839 of the Civil Code states the instances when a will may be
disallowed, as follows:
"Article 839. The will shall be disallowed in any of the following
cases:
(1) If the formalities required by law have not been complied
with;
(2) If the testator was insane, or otherwise mentally incapable of
making a will, at the time of its execution;
(3) If it was executed through force or under duress, or the
influence of fear, or threats;
(4) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary or of some other person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that the
instrument he signed should be his will at the time of affixing his
signature thereto."
In the present case, petitioner assails the validity of Placido
Valmontes will by imputing fraud in its execution and
challenging the testators state of mind at the time.
Existence of Fraud in the
Execution of a Will
Petitioner does not dispute the due observance of the
formalities in the execution of the will, but maintains that the
circumstances surrounding it are indicative of the existence of
fraud. Particularly, she alleges that respondent, who is the
testators wife and sole beneficiary, conspired with the notary
public and the three attesting witnesses in deceiving Placido to
sign it. Deception is allegedly reflected in the varying dates of
the execution and the attestation of the will.
Petitioner contends that it was "highly dubious for a woman at
the prime of her young life [to] almost immediately plunge into
marriage with a man who [was] thrice her age x x x and who
happened to be [a] Fil-American pensionado,"11 thus casting
doubt on the intention of respondent in seeking the probate of
the will. Moreover, it supposedly "defies human reason, logic
and common experience"12 for an old man with a severe
psychological condition to have willingly signed a last will and
testament.
We are not convinced. Fraud "is a trick, secret device, false
statement, or pretense, by which the subject of it is cheated. It
may be of such character that the testator is misled or deceived
as to the nature or contents of the document which he executes,
or it may relate to some extrinsic fact, in consequence of the
deception regarding which the testator is led to make a certain
will which, but for the fraud, he would not have made."13
We stress that the party challenging the will bears the burden of
proving the existence of fraud at the time of its execution.14 The
burden to show otherwise shifts to the proponent of the will only
upon a showing of credible evidence of fraud.15 Unfortunately in
this case, other than the self-serving allegations of petitioner, no
evidence of fraud was ever presented.
It is a settled doctrine that the omission of some relatives does
not affect the due execution of a will. 16 That the testator was
tricked into signing it was not sufficiently established by the fact
that he had instituted his wife, who was more than fifty years his
junior, as the sole beneficiary; and disregarded petitioner and
her family, who were the ones who had taken "the cudgels of
taking care of [the testator] in his twilight years."17
Moreover, as correctly ruled by the appellate court, the conflict
between the dates appearing on the will does not invalidate the
document, "because the law does not even require that a
[notarial] will x x x be executed and acknowledged on the same
occasion."18 More important, the will must be subscribed by the
testator, as well as by three or more credible witnesses who
must also attest to it in the presence of the testator and of one
another.19Furthermore, the testator and the witnesses must
acknowledge the will before a notary public. 20 In any event, we
agree with the CA that "the variance in the dates of the will as to
its supposed execution and attestation was satisfactorily and
persuasively explained by the notary public and the instrumental
witnesses."21
The pertinent transcript of stenographic notes taken on June 11,
1985, November 25, 1985, October 13, 1986, and October 21,
1987 -- as quoted by the CA -- are reproduced respectively as
follows:
"Atty. Floro Sarmiento:
Q You typed this document exhibit C, specifying the date June
15 when the testator and his witnesses were supposed to be in
your office?
A Yes sir.
Q On June 15, 1983, did the testator and his witnesses come to
your house?
A They did as of agreement but unfortunately, I was out of town.
xxxxxxxxx
Q The document has been acknowledged on August 9, 1983 as
per acknowledgement appearing therein. Was this the actual
date when the document was acknowledged?
A Yes sir.
Q What about the date when the testator and the three
witnesses affixed their respective signature on the first and
second pages of exhibit C?
A On that particular date when it was acknowledged, August 9,
1983.
Q Why did you not make the necessary correction on the date
appearing on the body of the document as well as the
attestation clause?
A Because I do not like anymore to make some alterations so I
put it in my own handwriting August 9, 1983 on the
acknowledgement. (tsn, June 11, 1985, pp. 8-10)
Eugenio Gomez:
Q It appears on the first page Mr. Witness that it is dated June
15, 1983, whereas in the acknowledgement it is dated August 9,
1983, will you look at this document and tell us this discrepancy
in the date?
A We went to Atty. Sarmiento together with Placido Valmonte
and the two witnesses; that was first week of June and Atty.
Sarmiento told us to return on the 15th of June but when we
returned, Atty. Sarmiento was not there.
Q When you did not find Atty. Sarmiento on June 15, 1983, did
you again go back?
A We returned on the 9th of August and there we signed.
Q This August 9, 1983 where you said it is there where you
signed, who were your companions?
A The two witnesses, me and Placido Valmonte. (tsn,
November 25, 1985, pp. 7-8)
Felisa Gomez on cross-examination:
Q Why did you have to go to the office of Atty. Floro Sarmiento,
three times?
xxxxxxxxx
A The reason why we went there three times is that, the first
week of June was out first time. We went there to talk to Atty.
Sarmiento and Placido Valmonte about the last will and
testament. After that what they have talked what will be placed
in the testament, what Atty. Sarmiento said was that he will go
back on the 15th of June. When we returned on June 15, Atty.
Sarmiento was not there so we were not able to sign it, the will. his wife as sole beneficiary. As we have stated earlier, the
That is why, for the third time we went there on August 9 and omission of some relatives from the will did not affect its formal
that was the time we affixed our signature. (tsn, October 13, validity. There being no showing of fraud in its execution, intent
1986, pp. 4-6) in its disposition becomes irrelevant.

Josie Collado: Worth reiterating in determining soundness of mind is Alsua-

Betts v. CA,25 which held thus:
Q When you did not find Atty. Sarmiento in his house on June
15, 1983, what transpired? "Between the highest degree of soundness of mind and memory
which unquestionably carries with it full testamentary capacity,
A The wife of Atty. Sarmiento told us that we will be back on and that degrees of mental aberration generally known as
August 9, 1983. insanity or idiocy, there are numberless degrees of mental
capacity or incapacity and while on one hand it has been held
that mere weakness of mind, or partial imbecility from disease of
Q And on August 9, 1983 did you go back to the house of Atty. body, or from age, will not render a person incapable of making
Sarmiento? a will; a weak or feebleminded person may make a valid will,
provided he has understanding and memory sufficient to enable
A Yes, Sir. him to know what he is about to do and how or to whom he is
disposing of his property. To constitute a sound and disposing
Q For what purpose? mind, it is not necessary that the mind be unbroken or
unimpaired or unshattered by disease or otherwise. It has been
held that testamentary incapacity does not necessarily require
A Our purpose is just to sign the will. that a person shall actually be insane or of unsound mind."26

Q Were you able to sign the will you mentioned? WHEREFORE, the Petition is DENIED, and the assailed
Decision and Resolution of the Court of Appeals
A Yes sir. (tsn, October 21, 1987, pp. 4-5)"22 are AFFIRMED. Costs against petitioner.

Notably, petitioner failed to substantiate her claim of a "grand SO ORDERED.

conspiracy" in the commission of a fraud. There was no showing
that the witnesses of the proponent stood to receive any benefit
from the allowance of the will. The testimonies of the three
subscribing witnesses and the notary are credible evidence of
its due execution.23 Their testimony favoring it and the finding
that it was executed in accordance with the formalities required
by law should be affirmed, absent any showing of ill motives. 24

Capacity to Make a Will

In determining the capacity of the testator to make a will, the

Civil Code gives the following guidelines:

"Article 798. In order to make a will it is essential that the

testator be of sound mind at the time of its execution.

"Article 799. To be of sound mind, it is not necessary that the

testator be in full possession of all his reasoning faculties, or
that his mind be wholly unbroken, unimpaired, or shattered by
disease, injury or other cause.

"It shall be sufficient if the testator was able at the time of

making the will to know the nature of the estate to be disposed
of, the proper objects of his bounty, and the character of the
testamentary act.

"Article 800. The law presumes that every person is of sound

mind, in the absence of proof to the contrary.

"The burden of proof that the testator was not of sound mind at
the time of making his dispositions is on the person who
opposes the probate of the will; but if the testator, one month, or
less, before making his will was publicly known to be insane, the
person who maintains the validity of the will must prove that the
testator made it during a lucid interval."

According to Article 799, the three things that the testator must
have the ability to know to be considered of sound mind are as
follows: (1) the nature of the estate to be disposed of, (2) the
proper objects of the testators bounty, and (3) the character of
the testamentary act. Applying this test to the present case, we
find that the appellate court was correct in holding that Placido
had testamentary capacity at the time of the execution of his
will.

It must be noted that despite his advanced age, he was still able
to identify accurately the kinds of property he owned, the extent
of his shares in them and even their locations. As regards the
proper objects of his bounty, it was sufficient that he identified
G.R. Nos. 140371-72 November 27, 2006
DY YIENG SEANGIO, BARBARA D. SEANGIO and VIRGINIA
D. SEANGIO, Petitioners,
vs.
HON. AMOR A. REYES, in her capacity as Presiding Judge,
Regional Trial Court, National Capital Judicial Region,
Branch 21, Manila, ALFREDO D. SEANGIO, ALBERTO D.
SEANGIO, ELISA D. SEANGIO-SANTOS, VICTOR D.
SEANGIO, ALFONSO D. SEANGIO, SHIRLEY D. SEANGIO-
LIM, BETTY D. SEANGIO-OBAS and JAMES D.
SEANGIO, Respondents.
DECISION
AZCUNA, J.:
This is a petition for certiorari1 with application for the issuance
of a writ of preliminary injunction and/or temporary restraining
order seeking the nullification of the orders, dated August 10,
1999 and October 14, 1999, of the Regional Trial Court of
Manila, Branch 21 (the RTC), dismissing the petition for probate
on the ground of preterition, in the consolidated cases, docketed
as SP. Proc. No. 98-90870 and SP. Proc. No. 99-93396, and
entitled, "In the Matter of the Intestate Estate of Segundo C.
Seangio v. Alfredo D. Seangio, et al." and "In the Matter of the
Probate of the Will of Segundo C. Seangio v. Dy Yieng Seangio,
Barbara D. Seangio and Virginia Seangio."
The facts of the cases are as follows:
On September 21, 1988, private respondents filed a petition for
the settlement of the intestate estate of the late Segundo
Seangio, docketed as Sp. Proc. No. 9890870 of the RTC, and
praying for the appointment of private respondent Elisa D.
SeangioSantos as special administrator and guardian ad litem
of petitioner Dy Yieng Seangio.
Petitioners Dy Yieng, Barbara and Virginia, all surnamed
Seangio, opposed the petition. They contended that: 1) Dy
Yieng is still very healthy and in full command of her faculties; 2)
the deceased Segundo executed a general power of attorney in
favor of Virginia giving her the power to manage and exercise
control and supervision over his business in the Philippines; 3)
Virginia is the most competent and qualified to serve as the
administrator of the estate of Segundo because she is a
certified public accountant; and, 4) Segundo left a holographic
will, dated September 20, 1995, disinheriting one of the private
respondents, Alfredo Seangio, for cause. In view of the
purported holographic will, petitioners averred that in the event
the decedent is found to have left a will, the intestate
proceedings are to be automatically suspended and replaced by
the proceedings for the probate of the will.
On April 7, 1999, a petition for the probate of the holographic
will of Segundo, docketed as SP. Proc. No. 9993396, was filed
by petitioners before the RTC. They likewise reiterated that the
probate proceedings should take precedence over SP. Proc.
No. 9890870 because testate proceedings take precedence
and enjoy priority over intestate proceedings.2
The document that petitioners refer to as Segundos holographic
will is quoted, as follows:
Kasulatan sa pag-aalis ng mana
Tantunin ng sinuman
Ako si Segundo Seangio Filipino may asawa naninirahan sa
465-A Flores St., Ermita, Manila at nagtatalay ng maiwanag na
pag-iisip at disposisyon ay tahasan at hayagang inaalisan ko ng
lahat at anumang mana ang paganay kong anak na
si Alfredo Seangio dahil siya ay naging lapastangan sa akin at
isan beses siya ng sasalita ng masama harapan ko at mga
kapatid niya na si Virginia Seangio labis kong kinasama ng loob
ko at sasabe rin ni Alfredo sa akin na ako nasa ibabaw gayon
gunit daratin ang araw na ako nasa ilalim siya at siya nasa
ibabaw.
Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin
pagalan para makapagutang na kuarta siya at kanya asawa na
si Merna de los Reyes sa China Bangking Corporation na millon
pesos at hindi ng babayad at hindi ng babayad ito ay nagdulot
sa aking ng malaking kahihiya sa mga may-ari at stockholders
ng China Banking.
At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang
asawa na mga custome[r] ng Travel Center of the Philippines na
pinagasiwaan ko at ng anak ko si Virginia.
Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng
anak ko at hayanan kong inaalisan ng lahat at anoman mana na
si Alfredo at si Alfredo Seangio ay hindi ko siya anak at hindi
siya makoha mana.
Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng
Manila sa harap ng tatlong saksi. 3
(signed)
Segundo Seangio
Nilagdaan sa harap namin
(signed)
Dy Yieng Seangio (signed)
Unang Saksi ikalawang saksi
(signed)
ikatlong saksi
On May 29, 1999, upon petitioners motion, SP. Proc. No. 98
90870 and SP. Proc. No. 9993396 were consolidated.4
On July 1, 1999, private respondents moved for the dismissal of
the probate proceedings5 primarily on the ground that the
document purporting to be the holographic will of Segundo does
not contain any disposition of the estate of the deceased and
thus does not meet the definition of a will under Article 783 of
the Civil Code. According to private respondents, the will only
shows an alleged act of disinheritance by the decedent of his
eldest son, Alfredo, and nothing else; that all other compulsory
heirs were not named nor instituted as heir, devisee or legatee,
hence, there is preterition which would result to intestacy. Such
being the case, private respondents maintained that while
procedurally the court is called upon to rule only on the extrinsic
validity of the will, it is not barred from delving into the intrinsic
validity of the same, and ordering the dismissal of the petition
for probate when on the face of the will it is clear that it contains
no testamentary disposition of the property of the decedent.
Petitioners filed their opposition to the motion to dismiss
contending that: 1) generally, the authority of the probate court
is limited only to a determination of the extrinsic validity of the
will; 2) private respondents question the intrinsic and not the
extrinsic validity of the will; 3) disinheritance constitutes a
disposition of the estate of a decedent; and, 4) the rule on
preterition does not apply because Segundos will does not
constitute a universal heir or heirs to the exclusion of one or
more compulsory heirs.6
On August 10, 1999, the RTC issued its assailed order,
dismissing the petition for probate proceedings:
A perusal of the document termed as "will" by
oppositors/petitioners Dy Yieng Seangio, et al., clearly shows
that there is preterition, as the only heirs mentioned thereat are
Alfredo and Virginia. [T]he other heirs being omitted, Article 854
of the New Civil Code thus applies. However, insofar as the
widow Dy Yieng Seangio is concerned, Article 854 does not
apply, she not being a compulsory heir in the direct line.
As such, this Court is bound to dismiss this petition, for to do
otherwise would amount to an abuse of discretion. The
Supreme Court in the case of Acain v. Intermediate Appellate
Court [155 SCRA 100 (1987)] has made its position clear: "for
respondents to have tolerated the probate of the will and
allowed the case to progress when, on its face, the will appears
to be intrinsically void would have been an exercise in futility.
It would have meant a waste of time, effort, expense, plus
added futility. The trial court could have denied its probate
outright or could have passed upon the intrinsic validity of the
testamentary provisions before the extrinsic validity of the will
was resolved(underscoring supplied).
WHEREFORE, premises considered, the Motion to Suspend
Proceedings is hereby DENIED for lack of merit. Special
Proceedings No. 9993396 is hereby DISMISSED without
pronouncement as to costs.
SO ORDERED.7
Petitioners motion for reconsideration was denied by the RTC
in its order dated October 14, 1999.
Petitioners contend that:
THE RESPONDENT JUDGE ACTED IN EXCESS OF HER
JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION AND
DECIDED A QUESTION OF LAW NOT IN ACCORD WITH
LAW AND JURISPRUDENCE IN ISSUING THE QUESTIONED
ORDERS, DATED 10 AUGUST 1999 AND 14 OCTOBER 1999
(ATTACHMENTS "A" AND "B" HEREOF) CONSIDERING
THAT:
I he cited therein. In effect, Alfredo was disinherited by Segundo.
THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING
WITH SECTIONS 3 AND 4 OF RULE 76 OF THE RULES OF
COURT ON THE PROPER PROCEDURE FOR SETTING THE
CASE FOR INITIAL HEARING FOR THE ESTABLISHMENT
OF THE JURISDICTIONAL FACTS, DISMISSED THE
TESTATE CASE ON THE ALLEGED GROUND THAT THE
TESTATORS WILL IS VOID ALLEGEDLY BECAUSE OF THE
EXISTENCE OF PRETERITION, WHICH GOES INTO THE
INTRINSIC VALIDITY OF THE WILL, DESPITE THE FACT
THAT IT IS A SETTLED RULE THAT THE AUTHORITY OF
PROBATE COURTS IS LIMITED ONLY TO A
DETERMINATION OF THE EXTRINSIC VALIDITY OF THE
WILL, I.E., THE DUE EXECUTION THEREOF, THE
TESTATORS TESTAMENTARY CAPACITY AND THE
COMPLIANCE WITH THE REQUISITES OR SOLEMNITIES
PRESCRIBED BY LAW;
II
EVEN ASSUMING ARGUENDO THAT THE RESPONDENT
JUDGE HAS THE AUTHORITY TO RULE UPON THE
INTRINSIC VALIDITY OF THE WILL OF THE TESTATOR, IT
IS INDUBITABLE FROM THE FACE OF THE TESTATORS
WILL THAT NO PRETERITON EXISTS AND THAT THE WILL
IS BOTH INTRINSICALLY AND EXTRINSICALLY VALID; AND,
III
RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND
THE PROCEEDINGS IN THE INTESTATE CASE
CONSIDERING THAT IT IS A SETTLED RULE THAT
TESTATE PROCEEDINGS TAKE PRECEDENCE OVER
INTESTATE PROCEEDINGS.
Petitioners argue, as follows:
First, respondent judge did not comply with Sections 3 and 4 of
Rule 76 of the Rules of Court which respectively mandate the
court to: a) fix the time and place for proving the will when all
concerned may appear to contest the allowance thereof, and
cause notice of such time and place to be published three
weeks successively previous to the appointed time in a
newspaper of general circulation; and, b) cause the mailing of
said notice to the heirs, legatees and devisees of the testator
Segundo;
Second, the holographic will does not contain any institution of
an heir, but rather, as its title clearly states, Kasulatan ng Pag-
Aalis ng Mana, simply contains a disinheritance of a compulsory
heir. Thus, there is no preterition in the decedents will and the
holographic will on its face is not intrinsically void;
Third, the testator intended all his compulsory heirs, petitioners
and private respondents alike, with the sole exception of
Alfredo, to inherit his estate. None of the compulsory heirs in the
direct line of Segundo were preterited in the holographic will
since there was no institution of an heir;
Fourth, inasmuch as it clearly appears from the face of the
holographic will that it is both intrinsically and extrinsically valid,
respondent judge was mandated to proceed with the hearing of
the testate case; and,
Lastly, the continuation of the proceedings in the intestate case
will work injustice to petitioners, and will render nugatory the
disinheritance of Alfredo.
The purported holographic will of Segundo that was presented
by petitioners was dated, signed and written by him in his own
handwriting. Except on the ground of preterition, private
respondents did not raise any issue as regards the authenticity
of the document.
The document, entitled Kasulatan ng Pag-Aalis ng Mana,
unmistakably showed Segundos intention of excluding his
eldest son, Alfredo, as an heir to his estate for the reasons that
For disinheritance to be valid, Article 916 of the Civil Code
requires that the same must be effected through a will wherein
the legal cause therefor shall be specified. With regard to the
reasons for the disinheritance that were stated by Segundo in
his document, the Court believes that the incidents, taken as a
whole, can be considered a form of maltreatment of Segundo by
his son, Alfredo, and that the matter presents a sufficient cause
for the disinheritance of a child or descendant under Article 919
of the Civil Code:
Article 919. The following shall be sufficient causes for the
disinheritance of children and descendants, legitimate as well as
illegitimate:
(1) When a child or descendant has been found guilty
of an attempt against the life of the testator, his or her
spouse, descendants, or ascendants;
(2) When a child or descendant has accused the
testator of a crime for which the law prescribes
imprisonment for six years or more, if the accusation
has been found groundless;
(3) When a child or descendant has been convicted of
adultery or concubinage with the spouse of the
testator;
(4) When a child or descendant by fraud, violence,
intimidation, or undue influence causes the testator to
make a will or to change one already made;
(5) A refusal without justifiable cause to support the
parents or ascendant who disinherit such child or
descendant;
(6) Maltreatment of the testator by word or deed, by the
child or descendant;8
(7) When a child or descendant leads a dishonorable
or disgraceful life;
 (8) Conviction of a crime which carries with it the SO ORDERED.
penalty of civil interdiction.

Now, the critical issue to be determined is whether the

document executed by Segundo can be considered as a
holographic will.

A holographic will, as provided under Article 810 of the Civil

Code, must be entirely written, dated, and signed by the hand of
the testator himself. It is subject to no other form, and may be
made in or out of the Philippines, and need not be witnessed.

Segundos document, although it may initially come across as a

mere disinheritance instrument, conforms to the formalities of a
holographic will prescribed by law. It is written, dated and signed
by the hand of Segundo himself. An intent to dispose mortis
causa[9] can be clearly deduced from the terms of the
instrument, and while it does not make an affirmative disposition
of the latters property, the disinheritance of Alfredo,
nonetheless, is an act of disposition in itself. In other words, the
disinheritance results in the disposition of the property of the
testator Segundo in favor of those who would succeed in the
absence of Alfredo.10

Moreover, it is a fundamental principle that the intent or the will

of the testator, expressed in the form and within the limits
prescribed by law, must be recognized as the supreme law in
succession. All rules of construction are designed to ascertain
and give effect to that intention. It is only when the intention of
the testator is contrary to law, morals, or public policy that it
cannot be given effect.11

Holographic wills, therefore, being usually prepared by one who

is not learned in the law, as illustrated in the present case,
should be construed more liberally than the ones drawn by an
expert, taking into account the circumstances surrounding the
execution of the instrument and the intention of the testator.12 In
this regard, the Court is convinced that the document, even if
captioned as Kasulatan ng Pag-Aalis ng Mana, was intended by
Segundo to be his last testamentary act and was executed by
him in accordance with law in the form of a holographic will.
Unless the will is probated,13 the disinheritance cannot be given
effect.14

With regard to the issue on preterition,15 the Court believes that

the compulsory heirs in the direct line were not preterited in the
will. It was, in the Courts opinion, Segundos last expression to
bequeath his estate to all his compulsory heirs, with the sole
exception of Alfredo. Also, Segundo did not institute an heir16 to
the exclusion of his other compulsory heirs. The mere mention
of the name of one of the petitioners, Virginia, in the document
did not operate to institute her as the universal heir. Her name
was included plainly as a witness to the altercation between
Segundo and his son, Alfredo.1wphi1

Considering that the questioned document is Segundos

holographic will, and that the law favors testacy over intestacy,
the probate of the will cannot be dispensed with. Article 838 of
the Civil Code provides that no will shall pass either real or
personal property unless it is proved and allowed in accordance
with the Rules of Court. Thus, unless the will is probated, the
right of a person to dispose of his property may be rendered
nugatory.17

In view of the foregoing, the trial court, therefore, should have

allowed the holographic will to be probated. It is settled that
testate proceedings for the settlement of the estate of the
decedent take precedence over intestate proceedings for the
same purpose.18

WHEREFORE, the petition is GRANTED. The Orders of the

Regional Trial Court of Manila, Branch 21, dated August 10,
1999 and October 14, 1999, are set aside. Respondent judge is
directed to reinstate and hear SP Proc. No. 99-93396 for the
allowance of the holographic will of Segundo Seangio. The
intestate case or SP. Proc. No. 98-90870 is hereby suspended
until the termination of the aforesaid testate proceedings.

No costs.
G.R. No. 129505 January 31, 2000
OCTAVIO S. MALOLES II, petitioner,
vs.
PACITA DE LOS REYES PHILLIPS, respondent.
-----------------------------
G.R. No. 133359 January 31, 2000
OCTAVIO S. MALOLES II, petitioner,
vs.
COURT OF APPEALS, HON. FERNANDO V. GOROSPE, JR.,
in his Official Capacity as Presiding Judge of RTC-Makati,
Branch 61, and PACITA PHILLIPS as the alleged executrix
of the alleged will of the late Dr. Arturo de
Santos, respondents.
MENDOZA, J.:
These are petitions for review on certiorari of the decisions of
the Thirteenth and the Special Eighth Divisions of the Court of
Appeals which ruled that petitioner has no right to intervene in
the settlement of the estate of Dr. Arturo de Santos. The cases
were consolidated considering that they involve the same
parties and some of the issues raised are the same.
The facts which gave rise to these two petitions are as follows:
On July 20, 1995, Dr. Arturo de Santos, Filipino and a resident
of Makati City, filed a petition for probate of his will 1 in the
Regional Trial Court, Branch 61, Makati, docketed as Sp. Proc.
No. M-4223. In his petition, Dr. De Santos alleged that he had
no compulsory heirs; that he had named in his will as sole
legatee and devisee the Arturo de Santos Foundation, Inc.; that
he disposed by his will his properties with an approximate value
of not less than P2,000,000.00; and that copies of said will were
in the custody of the named executrix, private respondent Pacita
de los Reyes Phillips. A copy of the will2 was annexed to the
petition for probate.
On February 16, 1996, Judge Fernando V. Gorospe, Jr. of RTC-
Makati, Branch 61 issued an order granting the petition and
allowing the will. The order reads:
On 03 August 1995, the Court issued an Order setting
the hearing of the petition on 12 September 1995, at
8:30 o'clock in the morning, copies of which were
served to Arturo de Santos Foundation, Inc. and Ms.
Pacita de los Reyes Phillips (Officer's Return, dated 04
September 1995 attached to the records). When the
case was called for hearing on the date set, no
oppositor appeared nor any written opposition was
ever filed and on motion of petitioner, he was allowed
to adduce his evidence in support of the petition.
Petitioner personally appeared before this Court and
was placed on the witness stand and was directly
examined by the Court through "free wheeling"
questions and answers to give this Court a basis to
determine the state of mind of the petitioner when he
executed the subject will. After the examination, the
Court is convinced that petitioner is of sound and
disposing mind and not acting on duress, menace and
undue influence or fraud, and that petitioner signed his
Last Will and Testament on his own free and voluntary
will and that he was neither forced nor influenced by
any other person in signing it.
Furthermore, it appears from the petition and the
evidence adduced that petitioner in his lifetime,
executed his Last Will and Testament (Exhs. "A", "A-1",
"A-2", "A-4", "A-5") at his residence situated at 9
Bauhinia corner Intsia Streets, Forbes Park, Makati
City; said Last Will and Testament was signed in the
presence of his three (3) witnesses, namely, to wit: Dr.
Elpidio Valencia (Exhs. "A-6", "A-7", "A-8", "A-16", "A-
16-A"), Atty. Edward J. Berenguer (Exhs. "A-3", "A-3-
A", "A-9", "A-10", & "A-11"), and Atty. Victoria C. delos
Reyes (Exhs. "A-12", "A-13", "A-14", "A-17", & "A-18"),
who in turn, in the presence of the testator and in the
presence of each and all of the witnesses signed the
said Last Will and Testament and duly notarized before
Notary Public Anna Melissa L. Rosario (Exh. "A-15");
on the actual execution of the Last Will and Testament,
pictures were taken (Exhs. "B" to "B-3").
Petitioner has no compulsory heirs and Arturo de
Santos Foundation, Inc., with address at No. 9
Bauhinia corner Intsia Streets, Forbes Park, Makati
City has been named as sole legatee and devisee of
petitioner's properties, real and personal,
approximately valued at not less than P2 million, Ms.
Pacita de los Reyes Phillips was designated as
executor and to serve as such without a
bond.1wphi1.nt
From the foregoing facts, the Court finds that the
petitioner has substantially established the material
allegations contained in his petition. The Last Will and
Testament having been executed and attested as
required by law; that testator at the time of the
execution of the will was of sane mind and/or not
mentally incapable to make a Will; nor was it executed
under duress or under the influence of fear or threats;
that it was in writing and executed in the language
known and understood by the testator duly subscribed
thereof and attested and subscribed by three (3)
credible witnesses in the presence of the testator and
of another; that the testator and all the attesting
witnesses signed the Last Will and Testament freely
and voluntarily and that the testator has intended that
the instrument should be his Will at the time of affixing
his signature thereto.
WHEREFORE, as prayed for by the petitioner (testator
himself) the petition for the allowance of the Last Will
and Testament of Arturo de Santos is hereby
APPROVED and ALLOWED.
Shortly after the probate of his will, Dr. De Santos died on
February 26, 1996.
On April 3, 1996, petitioner Octavio S. Maloles II filed a motion
for intervention claiming that, as the only child of Alicia de
Santos (testator's sister) and Octavio L. Maloles, Sr., he was the
sole full-blooded nephew and nearest of kin of Dr. De Santos.
He likewise alleged that he was a creditor of the testator.
Petitioner thus prayed for the reconsideration of the order
allowing the will and the issuance of letters of administration in
his name.
On the other hand, private respondent Pacita de los Reyes
Phillips, the designated executrix of the will, filed a motion for
the issuance of letters testamentary with Branch 61. Later,
however, private respondent moved to withdraw her motion.
This was granted, while petitioner was required to file a
memorandum of authorities in support of his claim that said
court (Branch 61) still had jurisdiction to allow his intervention. 3
Petitioner filed his memorandum of authorities on May 13, 1996.
On the other hand, private respondent, who earlier withdrew her
motion for the issuance of letters testamentary in Branch 61,
refiled a petition for the same purpose with the Regional Trial
Court, Makati, which was docketed as Sp. Proc. No. M-4343
and assigned to Branch 65.
Upon private respondent's motion, Judge Salvador Abad Santos
of Branch 65 issued an order, dated June 28, 1996, appointing
her as special administrator of Dr. De Santos's estate.
On July 29, 1996, petitioner sought to intervene in Sp. Proc. No.
M-4343 and to set aside the appointment of private respondent
as special administrator. He reiterated that he was the sole and
full blooded nephew and nearest of kin of the testator; that he
came to know of the existence of Sp. Proc. No. M-4343 only by
accident; that the probate proceedings in Sp. Proc. No. M-4223
before Branch 61 of the same court was still pending; that
private respondent misdeclared the true worth of the testator's
estate; that private respondent was not fit to be the special
administrator of the estate; and that petitioner should be given
letters of administration for the estate of Dr. De Santos.
On August 28, 1996, Judge Abad Santos ordered the transfer of
Sp. Proc. No. M-4343 to Branch 61, on the ground that "[it] is
related to the case before Judge Gorospe of RTC Branch 61 . .
."
It appears, however, that in Sp. Proc. No. M-4223, Judge
Gorospe had denied on August 26, 1996 petitioner's motion for
intervention. Petitioner brought this matter to the Court of
Appeals which, in a decision4 promulgated on February 13,
1998, upheld the denial of petitioner's motion for intervention.
Meanwhile, Judge Gorospe issued an order, dated September
4, 1996, returning the records of Sp. Proc. No. M-4343 to
Branch 65 on the ground that there was a pending case
involving the Estate of Decedent Arturo de Santos pending
before said court. The order reads:
Acting on the ORDER dated 28 August 1996 of Branch
65, this Court, transferring this case to this Branch 61
on the ground that this case is related with a case
before this Court, let this case be returned to Branch
65 with the information that there is no related case
involving the ESTATE OF DECEDENT ARTURO DE
SANTOS pending before this Branch.
There is, however, a case filed by ARTURO DE
SANTOS, as petitioner under Rule 76 of the Rules of
Court for the Allowance of his will during his lifetime
docketed as SP. PROC. NO. M-4223 which was
already decided on 16 February 1996 and has become
final.
It is noted on records of Case No. M-4223 that after it
became final, herein Petitioner Pacita de los Reyes
Phillips filed a MOTION FOR THE ISSUANCE OF
LETTERS TESTAMENTARY, which was subsequently
withdrawn after this Court, during the hearing, already
ruled that the motion could not be admitted as the
subject matter involves a separate case under Rule 78
of the Rules of Court, and movant withdrew her motion
and filed this case (No. 4343).
Octavio de Santos Maloles [II] filed a MOTION FOR
INTERVENTION before Case No. M-4223 and this
motion was already DENIED in the order (Branch 61)
of 26 August 1996 likewise for the same grounds that
the matter is for a separate case to be filed under Rule
78 of the Rules of Court and cannot be included in this
case filed under Rule 76 of the Rules of Court.
It is further noted that it is a matter of policy that
consolidation of cases must be approved by the
Presiding Judges of the affected Branches.
Initially, in his decision dated September 23, 1996,5 Judge Abad
Santos appeared firm in his position that " . . . it would be
improper for (Branch 65) to hear and resolve the petition (Sp.
Proc. No. M-4343)," considering that the probate proceedings
were commenced with Branch 61. He thus ordered the transfer
of the records back to the latter branch. However, he later
recalled his decision and took cognizance of the case "to
expedite the proceedings." Thus, in his Order, dated October
21, 1996, he stated:
Considering the refusal of the Hon. Fernando V.
Gorospe, Jr. of Branch 61 to continue hearing this case
notwithstanding the fact that said branch began the
probate proceedings of the estate of the deceased and
must therefore continue to exercise its jurisdiction to
the exclusion of all others, until the entire estate of the
testator had been partitioned and distributed as per
Order dated 23 September 1996, this branch (Regional
Trial Court Branch 65) shall take cognizance of the
petition if only to expedite the proceedings, and under
the concept that the Regional Trial Court of Makati City
is but one court.
Furnish a copy of this order to the Office of the Chief
justice and the Office of the Court Administrator, of the
Supreme Court; the Hon. Fernando V. Gorospe, Jr.;
Pacita De Los Reyes Phillips, Petitioner; and Octavio
de Santos Maloles, Intervenor.
On November 4, 1996, Judge Abad Santos granted petitioner's
motion for intervention. Private respondent moved for a
reconsideration but her motion was denied by the trial court.
She then filed a petition for certiorari in the Court of Appeals
which, on February 26, 1997, rendered a decision6 setting aside
the trial court's order on the ground that petitioner had not
shown any right or interest to intervene in Sp. Proc. No. M-4343.
Hence, these petitions which raise the following issues:
1. Whether or not the Honorable Regional Trial Court
Makati, Branch 61 has lost jurisdiction to proceed
with the probate proceedings upon its issuance of an
order allowing the will of Dr. Arturo de Santos.
2. Whether or not the Honorable (Regional Trial Court
Makati, Branch 65) acquired jurisdiction over the
petition for issuance of letters testamentary filed by
(private) respondent.
3. Whether or not the petitioner, being a creditor of the
late Dr. Arturo de Santos, has a right to intervene and
oppose the petition for issuance of letters testamentary
filed by the respondent.
4. Whether or not (private) respondent is guilty of
forum shopping in filing her petition for issuance of
letters testamentary with the Regional Trial Court
Makati, Branch 65 knowing fully well that the probate
proceedings involving the same restate estate of the
decedent is still pending with the Regional Trial Court
Makati, Branch 61.
First. Petitioner contends that the probate proceedings in
Branch 61 of RTC-Makati did not terminate upon the issuance
of the order allowing the will of Dr. De Santos. Citing the cases
of Santiesteban v. Santiesteban7 and Tagle v. Manalo,8 he
argues that the proceedings must continue until the estate is
fully distributed to the lawful heirs, devisees, and legatees of the
testator, pursuant to Rule 73, 1 of the Rules of Court.
Consequently, petitioner contends that Branch 65 could not
lawfully act upon private respondent's petition for issuance of
letters testamentary.
The contention has no merit.
In cases for the probate of wills, it is well-settled that the
authority of the court is limited to ascertaining the extrinsic
validity of the will, i.e., whether the testator, being of sound
mind, freely executed the will in accordance with the formalities
prescribed by law.9
Ordinarily, probate proceedings are instituted only after the
death of the testator, so much so that, after approving and
allowing the will, the court proceeds to issue letters
testamentary and settle the estate of the testator. The cases
cited by petitioner are of such nature. In fact, in most
jurisdictions, courts cannot entertain a petition for probate of the
will of a living testator under the principle of ambulatory nature
of wills.10
However, Art. 838 of the Civil Code authorizes the filing of a
petition for probate of the will filed by the testator himself. It
provides:
CIVIL CODE, ART. 838. No will shall pass either real
or personal property unless it is proved and allowed in
accordance with the Rules of Court.
 The testator himself may, during his lifetime, petition
the court having jurisdiction for the allowance of his
will. In such case, the pertinent provisions of the Rules
of Court for the allowance of wills after the testator's
death shall govern.
The Supreme Court shall formulate such additional
Rules of Court as may be necessary for the allowance
of wills on petition of the testator.
Subject to the right of appeal, the allowance of the will,
either during the lifetime of the testator or after his
death, shall be conclusive as to its due execution.
Rule 76, 1 likewise provides:
Sec. 1. Who may petition for the allowance of will.
Any executor, devisee, or legatee named in a will, or
any other person interested in the estate, may, at any
time after the death of the testator, petition the court
having jurisdiction to have the will allowed, whether the
same be in his possession or not, or is lost or
destroyed.
The testator himself may, during his lifetime, petition in
the court for the allowance of his will.
The rationale for allowing the probate of wills during the lifetime
of testator has been explained by the Code Commission thus:
Most of the cases that reach the courts involve either
the testamentary capacity of the testator or the
formalities adopted in the execution of wills. There are
relatively few cases concerning the intrinsic validity of
testamentary dispositions. It is far easier for the courts
to determine the mental condition of a testator during
his lifetime than after his death. Fraud, intimidation and
undue influence are minimized. Furthermore, if a will
does not comply with the requirements prescribed by
law, the same may be corrected at once. The probate
during the testator's life, therefore, will lessen the
number of contest upon wills. Once a will is probated
during the lifetime of the testator, the only questions
that may remain for the courts to decide after the
testator's death will refer to the intrinsic validity of the
testamentary dispositions. It is possible, of course, that
even when the testator himself asks for the allowance
of the will, he may be acting under duress or undue
influence, but these are rare cases.
After a will has been probated during the lifetime of the
testator, it does not necessarily mean that he cannot
alter or revoke the same before his death. Should he
make a new will, it would also be allowable on his
petition, and if he should die before he has had a
chance to present such petition, the ordinary probate
proceeding after the testator's death would be in
order.11
Thus, after the allowance of the will of Dr. De Santos on
February 16, 1996, there was nothing else for Branch 61 to do
except to issue a certificate of allowance of the will pursuant to
Rule 73, 12 of the Rules of Court. There is, therefore, no basis
for the ruling of Judge Abad Santos of Branch 65 of RTC-Makati
that
Branch 61 of the Regional Trial Court of Makati having
begun the probate proceedings of the estate of the
deceased, it continues and shall continue to exercise
said jurisdiction to the exclusion of all others. It should
be noted that probate proceedings do not cease upon
the allowance or disallowance of a will but continues
up to such time that the entire estate of the testator
had been partitioned and distributed.
The fact that the will was allowed during the lifetime of
the testator meant merely that the partition and
distribution of the estate was to be suspended until the
latter's death. In other words, the petitioner, instead of
filing a new petition for the issuance of letters
testamentary, should have simply filed a manifestation
for the same purpose in the probate court.12
Petitioner, who defends the order of Branch 65 allowing him to
intervene, cites Rule 73, 1 which states:
Where estate of deceased persons settled. If the
decedent is an inhabitant of the Philippines at the time
of his death, whether a citizen or an alien, his will shall
be proved, or letters of administration granted, and his
estate settled, in the Court of First Instance in the
province in which he resides at the time of his death,
and if he is an inhabitant of a foreign country, the Court
of First Instance of any province in which he had
estate. The court first taking cognizance of the
settlement of the estate of a decedent, shall exercise
jurisdiction to the exclusion of all other courts. The
jurisdiction assumed by a court, so far as it depends on
the place of residence of the decedent, or of the
location of his estate, shall not be contested in a suit or
proceeding, except in an appeal from that court, in the
original case, or when the want of jurisdiction appears
on the record.
The above rule, however, actually provides for the venue of
actions for the settlement of the estate of deceased persons.
In Garcia Fule v. Court of Appeals, it was held:13
The aforequoted Section 1, Rule 73 (formerly Rule 75,
Section 1), specifically the clause "so far as it depends
on the place of residence of the decedent, or of the
location of the state," is in reality a matter of venue, as
the caption of the Rule indicates: "Settlement of Estate
of Deceased Persons. Venue and Processes." It could
not have been intended to define the jurisdiction over
the subject matter, because such legal provision is
contained in a law of procedure dealing merely with
procedural matters. Procedure is one thing, jurisdiction
over the subject matter is another. The power or
authority of the court over the subject matter "existed
was fixed before procedure in a given cause began."
That power or authority is not altered or changed by
procedure, which simply directs the manner in which
the power or authority shall be fully and justly
exercised. There are cases though that if the power is
not exercised conformably with the provisions of the
procedural law, purely, the court attempting to exercise
it loses the power to exercise it legally. However, this
does not amount to a loss of jurisdiction over the
subject matter. Rather, it means that the court may
thereby lose jurisdiction over the person or that the
judgment may thereby be rendered defective for lack of
something essential to sustain it. The appearance of
this provision in the procedural law at once raises a
strong presumption that it has nothing to do with the
jurisdiction of the court over the subject matter. In plain
words, it is just a matter of method, of convenience to
the parties.
Indeed, the jurisdiction over probate proceedings and settlement
of estates with approximate value of over P100,000.00 (outside
Metro Manila) or P200,000.00 (in Metro Manila) belongs to the
regional trial courts under B.P. Blg. 129, as amended. The
different branches comprising each court in one judicial region
do not possess jurisdictions independent of and incompatible
with each other.14
It is noteworthy that, although Rule 73, 1 applies insofar as the
venue of the petition for probate of the will of Dr. De Santos is
concerned, it does not bar other branches of the same court
from taking cognizance of the settlement of the estate of the
testator after his death. As held in the leading case of Bacalso v.
Ramolote:15
The various branches of the Court of First Instance of
Cebu under the Fourteenth Judicial District, are a
coordinate and co-equal courts, and the totality of
which is only one Court of First Instance. The
jurisdiction is vested in the court, not in the judges. And
when a case is filed in one branch, jurisdiction over the
 case does not attach to the branch or judge alone, to
the exclusion of the other branches. Trial may be held
or proceedings continue by and before another branch
or judge. It is for this reason that Section 57 of the
Judiciary Act expressly grants to the Secretary of
Justice, the administrative right or power to apportion
the cases among the different branches, both for the
convenience of the parties and for the coordination of
the work by the different branches of the same court.
The apportionment and distribution of cases does not
involve a grant or limitation of jurisdiction, the
jurisdiction attaches and continues to be vested in the
Court of First Instance of the province, and the trials
may be held by any branch or judge of the court.
Necessarily, therefore, Branch 65 of the RTC of Makati City has
jurisdiction over Sp. Proc. No. M-4343.
Second. Petitioner claims the right to intervene in and oppose
the petition for issuance of letters testamentary filed by private
respondent. He argues that, as the nearest next of kin and
creditor of the testator, his interest in the matter is material and
direct. In ruling that petitioner has no right to intervene in the
proceedings before Branch 65 of RTC-Makati City, the Court of
Appeals held:
The private respondent herein is not an heir or legatee
under the will of the decedent Arturo de Santos.
Neither is he a compulsory heir of the latter. As the
only and nearest collateral relative of the decedent, he
can inherit from the latter only in case of intestacy.
Since the decedent has left a will which has already
been probated and disposes of all his properties the
private respondent can inherit only if the said will is
annulled. His interest in the decedent's estate is,
therefore, not direct or immediate.
His claim to being a creditor of the estate is a belated
one, having been raised for the first time only in his
reply to the opposition to his motion to intervene, and,
as far as the records show, not supported by evidence.
. . . . [T]he opposition must come from one with a direct
interest in the estate or the will, and the private
respondent has none. Moreover, the ground cited in
the private respondent's opposition, that the petitioner
has deliberately misdeclared the truth worth and value
of the estate, is not relevant to the question of her
competency to act as executor. Section 2, Rule 76 of
the Rules of Court requires only an allegation of the
probable value and character of the property of the
estate. The true value can be determined later on in
the course of the settlement of the estate. 16
Rule 79, 1 provides:
Opposition to issuance of letters
testamentary. Simultaneous petition for administration.
Any person interested in a will may state in writing
the grounds why letters testamentary should not issue
to the persons named therein as executors, or any of
them, and the court, after hearing upon notice, shall
pass upon the sufficiency of such grounds. A petition
may, at the same time, be filed for letters of
administration with the will annexed.
Under this provision, it has been held that an "interested
person" is one who would be benefited by the estate, such as
an heir, or one who has a claim against the estate, such as a
creditor, and whose interest is material and direct, not merely
incidental or contingent.17
Even if petitioner is the nearest next of kin of Dr. De Santos, he
cannot be considered an "heir" of the testator. It is a
fundamental rule of testamentary succession that one who has
no compulsory or forced heirs may dispose of his entire estate
by will. Thus, Art. 842 of the Civil Code provides:
One who has no compulsory heirs may dispose by will
of all his estate or any part of it in favor of any person
having capacity to succeed.
One who has compulsory heirs may dispose of his
estate provided he does not contravene the provisions
of this Code with regard to the legitimate of said heirs.
Compulsory heirs are limited to the testator's
(1) Legitimate children and descendants, with respect
to their legitimate parents and ascendants;
(2) In default of the foregoing, legitimate parents and
ascendants, with respect to their legitimate children
and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children
by legal fiction;
(5) Other illegitimate children referred to in Article 287
of the Civil Code.18
Petitioner, as nephew of the testator, is not a compulsory heir
who may have been preterited in the testator's will.
Nor does he have any right to intervene in the settlement
proceedings based on his allegation that he is a creditor of the
deceased. Since the testator instituted or named an executor in
his will, it is incumbent upon the Court to respect the desires of
the testator. As we stated in Ozaeta v. Pecson:19
The choice of his executor is a precious prerogative of
a testator, a necessary concomitant of his right to
dispose of his property in the manner he wishes. It is
natural that the testator should desire to appoint one of
his confidence, one who can be trusted to carry out his
wishes in the disposal of his estate. The curtailment of
this right may be considered a curtailment of the right
to dispose.
Only if the appointed executor is incompetent, refuses the trust,
or fails to give bond may the court appoint other persons to
administer the estate.20 None of these circumstances is present
in this case.
Third. Petitioner contends that private respondent is guilty of
forum shopping when she filed the petition for issuance of
letters testamentary (Sp. Proc. No. M-4343) while the probate
proceedings (Sp. Proc. No. M-4223) were still pending.
According to petitioner, there is identity of parties, rights
asserted, and reliefs prayed for in the two actions which are
founded on the same facts, and a judgment in either will result
in res judicata in the other.
This contention has no merit. As stated earlier, the petition for
probate was filed by Dr. De Santos, the testator, solely for the
purpose of authenticating his will. Upon the allowance of his will,
the proceedings were terminated.1wphi1.nt
On the other hand, the petition for issuance of letters
testamentary was filed by private respondent, as executor of the
estate of Dr. De Santos, for the purpose of securing authority
from the Court to administer the estate and put into effect the
will of the testator. The estate settlement proceedings
commenced by the filing of the petition terminates upon the
distribution and delivery of the legacies and devises to the
persons named in the will. Clearly, there is no identity between
the two petitions, nor was the latter filed during the pendency of
the former. There was, consequently, no forum shopping.
WHEREFORE, the petition is DENIED and the decisions of the
Court of Appeals are hereby AFFIRMED.
SO ORDERED.
G.R. No. L-20374 October 11, 1923
In re of Dolores Coronel, deceased.
LORENZO PECSON, applicant-appellee,
vs.
AGUSTIN CORONEL, ET AL., opponents-appellants.
Fisher, DeWitt, Perkins and Brady for appellants.
Ross and Lawrence and Guillermo Lualhati for appellee.
ROMUALDEZ, J.:
On November 28, 1922, the Court of First Instance of
Pampanga probated as the last will and testament of Dolores
Coronel, the document Exhibit A, which translated is as follows:
In the name of God, Amen:
I, Dolores Coronel, resident of Betis, Guagua,
Pampanga, Philippine Islands, in the full exercise of my
mental faculties, do hereby make my last will and
testament, and revoke all former wills by me executed.
I direct and order that my body be buried in conformity
with my social standing.
That having no forced heirs, I will all my properties,
both movable and immovable, to my nephew, Lorenzo
Pecson, who is married to my niece Angela Coronel, in
consideration of the good services with he has
rendered, and is rendering to me with good will and
disinterestedness and to my full satisfaction.
I name and appoint my aforesaid nephew, Lorenzo
Pecson, executor of all that is willed and ordained in
this my will, without bond. Should he not be able to
discharge his duties as such executor for any reason
whatsoever, I name and appoint as substitute executor
my grandson Victor Pecson, a native and resident of
the town of Betis, without requiring him to give
bond. 1awph!l.net
All my real and paraphernal property as well as my
credits for I declare that I have no debts, are specified
in an inventory.
In testimony whereof and as I do not know how to write
my name, I have requested Vicente J. Francisco to
write my name at the foot hereof and on the left margin
of each of its sheet before me and all the undersigned
witnesses this July 1, 1918.
VICENTE J. FRANCISCO
"For the testatrix Dolores Coronel
The foregoing document was executed and declared
by Dolores Coronel to be her last will and testament in
our presence, and as the testatrix does not know how
to write her name, she requested Vicente J. Francisco
to sign her name under her express direction in our
presence, at the foot, and on the left margin of each
and every sheet, hereof. In testimony whereof, each of
us signed these presents in the presence of others and
of the testatrix at the foot hereof and on the margin of
each and everyone of the two sheets of which this
document is composed, which are numbered "one"
and "two" on the upper part of the face thereof.
(Sgd.) "MAXIMO VERGARA SOTERO
DUMAUAL MARCOS DE LOS SANTOS
MARIANO L.
CRISOSTOMO PABLO
BARTOLOME MARCOS DE LA
CRUZ DAMIAN CRISOSTOMO
On the left margin of the two sheets of the will the
following signatures also appear:
Mariano L. Crisostomo, Vicente J. Francisco for the
testatrix Dolores Coronel, M. Vergara, Pablo
Bartolome, Sotero Dumaual Crisostomo, Marcos de la
Cruz, Marcos de los Santos.
The petitioner for the probate of the will is Lorenzo Pecson,
husband of Angela Coronel, who is a niece of the deceased
Dolores Coronel.
The opponents are: Eriberto Coronel, Tito Coronel, Julian
Gozum, Cirila Santiago, widow of the deceased Macario
Gozum, in her own behalf and that of her three minor children,
Hilarion Coronel, Geronimo Coronel, Maria Coronel and her
husband Eladio Gongco, Juana Bituin, widow of the deceased
Hipolito Coronel, in her own behalf and that of her three
children, Generosa, Maria, and Jose, all minors, Rosario
Coronel, Agustin Coronel, Filomeno Coronel, Casimiro Coronel,
Alejo Coronel, Maria Coronel, Severina Coronel, Serapia
Coronel, Maria Juana de Ocampo, widow of the deceased
Manuel Coronel, Dionisia Coronel, and her husband Pantaleon
Gunlao.
The probate of this will is impugned on the following grounds:
(a) That the proof does not that the document Exhibit A above
copied contains the last will of Dolores Coronel, and (b) that the
attestation clause is not in accordance with the provisions of
section 618 of the Code of Civil Procedure, as amended by Act
No. 2645.
These are the two principal questions which are debated in this
case and which we will now examine separately.
As to the first, which is the one raised in the first assignment of
error, the appellants argue: First, that it was improbable and
exceptional that Dolores Coronel should dispose of her estate,
as set forth in the document Exhibit A, her true being that the
same be distributed among her blood relatives; and second, that
if such will not expressed in fact, it was due to extraneous illegal
influence.
Let us examine the first point.
The opponents contend that it was not, nor could it be, the will
of the testatrix, because it is not natural nor usual that she
should completely exclude her blood relatives from her vast
estate, in order to will the same to one who is only a relative by
affinity, there appearing no sufficient motive for such exclusion,
inasmuch as until the death of Dolores Coronel, she maintained
very cordial relations with the aforesaid relatives who had
helped her in the management and direction of her lands. It
appears, however, from the testimony of Attorney Francisco
(page 71, transcript of the stenographic notes) that Dolores
Coronel revealed to him her suspicion against some of her
nephews as having been accomplices in a robbery of which she
had been a victim.
As to whether or not Lorenzo Pecson rendered services to
Dolores Coronel, the opponents admit that he rendered them at
least from the year 1914, although there is proof showing that
he rendered such services long before that time.
The appellants emphasize the fact that family ties in this country
are very strongly knit and that the exclusion of relative one's
estate an exceptional case. It is true that ties of relationship in
the Philippines are very strong, but we understand that cases of
preterition of relatives from the inheritance are not rare. The
liberty to dispose of one's estate by will when there are no
forced heirs is rendered sacred by the civil Code in force in the
Philippines since 1889. It is so provided in the first paragraph of
article in the following terms:
 Any person who was no forced heirs may dispose by
will of all his property or any part of it in favor of any
person qualified to acquire it.
Even ignoring the precedents of this legal precept, the Code
embodying it has been in force in the Philippines for more than
a quarter of a century, and for this reason it is not tenable to say
that the excercise of the liberty thereby granted is necessarily
exceptional, where it is not shown that the inhabitants of this
country whose customs must have been take into consideration
by the legislator in adopting this legal precept, are averse to
such a liberty.
As to preference given to Lorenzo Pecson, it is not purely
arbitrary, nor a caprice or a whim of the moment. The proof
adduced by this appelle, although contradicted, shows by a
preponderance of evidence that besides the services which the
opponents admit had been rendered by him to Dolores Coronel
since the year 1914, he had also rendered services prior to that
time and was the administrator and manager of the affairs of
said Dolores in the last years of her life. And that this was not a
whim of the moment is shown by the fact that six years before
the execution of the will in question, said Lorenzo Pecson was
named and appointed by Dolores Coronel as her sole heir in the
document Exhibit B, which, translated, is as follows:
1. That my present property was acquired by me by
inheritance from my parents, but a great part thereof
was acquired by me by my own efforts and exertions;
2. That I have made no inventory of my properties, but
they can be seen in the title deeds in my possession
and in the declarations of ownership;
3. That I institute Lorenzo Pecson, married to Angela
Coronel, and a known resident of the town, my heir to
succeed to all my properties;
4. That I appoint my said heir, Lorenzo Pecson, as
executor, and, in his default, Victor Pecson, a resident
of the same town;
5. That as to my burial and other things connected with
the eternal rest of my soul, I leave them to the sound
direction of the aforesaid Lorenzo Pecson;
6. That as I cannot write I requested Martin Pangilinan,
a native and resident of this town, to write this will in
accordance with my wishes and precise instructions.
In testimony whereof I had the said Martin Pangilinan
write my name and surname, and affixed my mark
between my name and surname, and don Francisco
Dumaual, Don Mariano Sunglao, Don Sotero Dumaual,
Don Marcos de la Cruz and Don Martin Pangilinan
signed as witnesses, they having been present at the
beginning of, during, and after, the execution of this my
last will.
(Sgd.) "DOLORES CORONEL
Witnesses:
(Sgd.) "MARIANO SUNGLAO
MARCOS DE LA CRUZ
FRANCISCO DUMAUAL
SOTERO DUMAUAL
MARTIN PANGILINAN"
The appellants find in the testament Exhibit B something to
support their contention that the intention of Dolores Coronel
was to institute the said Pecson not as sole beneficiary, but
simply as executor and distributor of all her estate among her
heirs, for while Lorenzo Pecson's contention that he was
appointed sold beneficiary is based on the fact that he enjoyed
the confidence of Dolores Coronel in 1918 and administered all
her property, he did not exclusively have this confidence and
administration in the year 1912. Although such administration
and confidence were enjoyed by Pecson always jointly with
others and never exclusively, this fact does not show that the
will of the testatrix was to appoint Pecson only as executor and
distributor of her estate among the heirs, nor does it prevent
her, the testatrix, from instituting him in 1912 or 1918 as sole
beneficiary; nor does it constitute, lastly, a test for determining
whether or not such institution in favor of Pecson was the true
will of the testatrix.
We find, therefore, nothing strange in the preterition made by
Dolores Coronel of her blood relatives, nor in the designation of
Lorenzo Pecson as her sole beneficiary. Furthermore, although
the institution of the beneficiary here would not seem the most
usual and customary, still this would not be null per se.
In the absence of any statutory restriction every person
possesses absolute dominion over his property, and
may bestow it upon whomsoever he pleases without
regard to natural or legal claim upon his bounty. If the
testator possesses the requisite capacity to make a
will, and the disposition of his property is not affected
by fraud of undue influence, the will is not rendered
invalid by the fact that it is unnatural, unreasonable, or
unjust. Nothing can prevent the testator from making a
will as eccentric, as injudicious, or as unjust as caprice,
frivolity, or revenge can dictate. However, as has
already been shown, the unreasonable or unjustice of
a will may be considered on the question of
testamentary capacity. (40 Cyc., 1079.)
The testamentary capacity of Dolores Coronel is not disputed in
this case.
Passing to the second question, to wit, whether or not the true
last will of Dolores Coronel was expressed in the testament
Exhibit A, we will begin with expounding how the idea of making
the aforesaid will here controverted was borne and carried out.
About the year 1916 or 1917, Dolores showed the document
Exhibit B to Attorney Francisco who was then her legal adviser
and who, considering that in order to make the expression of
her last will more legally valid, though it necessary that the
statement be prepared in conformity with the laws in force at
time of the death of the testatrix, and observing that the will
Exhibit B lacked the extrinsic formalities required by Act No.
2645 enacted after its execution, advised Dolores Coronel that
the will be remade. She followed the advice, and Attorney
Francisco, after receiving her instructions, drew the will Exhibit
A in accordance therewith, and brought it to the house of
Dolores Coronel for its execution.
Pablo Bartolome read Exhibit A to Dolores Coronel in her
presence and that of the witnesses and asked her whether the
will was in accordance with her wishes. Dolores Coronel answer
that it was, and requested her attorney, Mr. Francisco, to sign
the will for her, which the attorney accordingly did in the
presence of the witnesses, who in turn signed it before the
testatrix and in the presence of each other.
Upon the filing of the motion for a rehearing on the first order
allowing the probate of the will, the opponents presented an
affidavit of Pablo Bartolome to the effect that, following
instructions of Lorenzo Pecson, he had informed the testatrix
that the contents of the will were that she entrusted Pecson with
the distribution of all her property among the relatives of the said
Dolores. But during the new trial Pablo Bartolome, in spite of
being present in the court room on the day of the trial, was not
introduced as a witness, without such an omission having been
satisfactorily accounted for.
While it is true that the petitioner was bound to present Pablo
Bartolome, being one of the witnesses who signed the will, at
the second hearing when the probate was controverted, yet we
cannot consider this point against the appellee for this was not
raised in any of the assignments of error made by the
appellants. (Art. 20, Rules of the Supreme Court.)
On the other hand, it was incumbent upon the opponents to
present Pablo Bartolome to prove before the court the
statement by him in his affidavit, since it was their duty to prove
what they alleged, which was that Dolores Coronel had not
understood the true contents of the will Exhibit A. Having
suppressed, without explanation, the testimony of Pablo
Bartolome, the presumption is against the opponents and that
is, that such a testimony would have been adverse had it been
produced at the hearing of the case before the court. (Sec 334,
subsec. 5, Code of Civil Procedure.)
The opponents call our attention to the fourth clause of the
document which says: "I name and appoint my aforesaid
nephew, Lorenzo Pecson, executor of all that is willed and
ordained in this my will, without bond. Should he not be able to
discharge his duties as such executor for any reason
whatsoever, I name and appoint as a substitute executor my
grandson Victor Pecson, resident of the town of Betis, without
requiring him to give bond," and contend that this clause is
repugnant to the institution of Lorenzo Pecson as sole
beneficiary of all her estate, for if such was the intention of the
testatrix, there would have been no necessity of appointing an
executor, nor any reason for designating a substitute in case
that the first one should not be able to discharge his duties, and
they perceived in this clause the idea which, according to them,
was not expressed in the document, and which was that Pecson
was simply to be a mere executor entrusted with the distribution
to the estate among the relatives of the testatrix, and that should
he not be able to do so, this duty would devolved upon his
substitutes.
But it is not the sole duty of an executor to distribute the estate,
which in estate succession, such as the instant case, has to be
distributed with the intervention of the court. All executor has,
besides, other duties and general and special powers intended
for the preservation, defense, and liquidation of the estate so
long as the same has not reached, by order of the court, the
hands of those entitled thereto.
The fact that Dolores Coronel foresaw the necessity of an
executor does not imply a negation of her desire to will all her
estate to Lorenzo Pecson. It is to be noted, furthermore, that in
the will, it was ordered that her body be given a burial in
accordance with her social standing and she had a perfect right
to designate a person who should see to it that this order was
complied with. One of the functions of an executor is the
fulfillment of what is ordained in the will.
It is argued that the will of the testatrix was to will her estate to
her blood relatives, for such was the promise made to Maria
Coronel, whom Rosario Coronel tends to corroborate. We do
not find such a promise to have been sufficiently proven, and
much less to have been seriously made and coupled with a
positive intention on the part of Dolores Coronel to fulfill the
same. In the absence of sufficient proof of fraud, or undue
influence, we cannot take such a promise into account, for even
if such a promise was in fact made, Dolores Coronel could
retract or forget it afterwards and dispose of her estate as she
pleased. Wills themselves, which contain more than mere
promises, are essentially revocable.
It is said that the true will of Dolores Coronel not expressed in
the will can be inferred from the phrase used by Jose M. Reyes
in his deposition when speaking of the purpose for which
Lorenzo Pecson was to receive the estate, to wit:
in order that the latter might dispose of the estate in the
most appropriate manner
Weight is given to this phrase from the circumstance that its
author was requested by Attorney Francisco to explain the
contents of Exhibit B and had acted as interpreter between
Dolores Coronel and Attorney Francisco at their interviews
previous to the preparation of Exhibit A, and had translated into
the Pampango dialect this last document, and, lastly, was
present at the execution of the will in question.
The disputed phrase "in order that the latter might dispose of the
estate in the most appropriate manner" was used by the witness
Reyes while sick in a hospital and testifying in the course of the
taking of his deposition.
The appellants interpret the expression "dispose in the most
appropriate manner" as meaning to say "distribute it among the
heirs." Limiting ourselves to its meaning, the expression is a
broad one, for the disposition may be effected in several and
various ways, which may not necessarily be a "distribution
among the heirs," and still be a "disposition in the most
appropriate manner." "To dispose" is not the same as "to
distribute."
To judge correctly the import of this phrase, the circumstances
under which it was used must be taken into account in this
particular instance. The witness Reyes, the author of the
phrase, was not expressing his own original ideas when he
used it, but was translating into Spanish what Dolores Coronel
had told him. According to the facts, the said witness is not a
Spaniard, that is to say, the Spanish language is not his native
tongue, but, perhaps, the Pampango dialect. It is an admitted
fact based on reason and experience that when a person
translates from one language to another, it is easier for him to
express with precision and accuracy when the version is from a
foreign language to a native one than vice-versa. The witness
Reyes translated from the Pampango dialect, which must be
more familiar to him, to the Spanish language which is not his
own tongue. And judging from the language used by him during
his testimony in this case, it cannot be said that this witness
masters the Spanish language. Thus is explained the fact that
when asked to give the reason for the appointment of an
executor in the will, he should say at the morning session
that "Dolores Coronel did appoint Don Lorenzo Pecson and in
his default, Victor Pecson, to act during her lifetime, but not after
he death," which was explained at the afternoon session by
saying "that Dolores Coronel did appoint Don Lorenzo Pecson
executor of all her estate during his lifetime and that in his
default, either through death or incapacity, Mr. Victor Pecson
was appointed executor." Taking into account all the
circumstances of this witness, there is ground to attribute his
inaccuracy as to the discharge of the duties of an executor, not
to ignorance of the elementary rule of law on the matter, for the
practice of which he was qualified, but to a non-mastery of the
Spanish language. We find in this detail of translation made by
the witness Reyes no sufficient reason to believe that the will
expressed by Dolores Coronel at the said interview with
Attorney Francisco was to appoint Lorenzo Pecson executor
and mere distributor of her estate among her heirs.
As to whether or not the burden of proof was on the petitioner to
establish that he was the sole legatee to the exclusion of the
relatives of Dolores Coronel, we understand that it was not his
duty to show the reasons which the testatrix may have had for
excluding her relatives from her estate, giving preference to him.
His duty was to prove that the will was voluntary and authentic
and he, who alleges that the estate was willed to another, has
the burden of proving his allegation.
Attorney Francisco is charged with having employed improper
means of making Lorenzo Pecson appear in the will as sole
beneficiary. However, after an examination of all the
proceedings had, we cannot find anything in the behavior of this
lawyer, relative to the preparation and execution of the will, that
would justify an unfavorable conclusion as to his personal and
professional conduct, nor that he should harbor any wrongful or
fraudulent purpose.
We find nothing censurable in his conduct in advising Dolores
Coronel to make a new will other than the last one, Exhibit B (in
the drawing of which he does not appear to her intervened), so
that the instrument might be executed with all the new
formalities required by the laws then in force; nor in the
preparation of the new will substantially in accordance with the
old one; nor in the selection of attesting witnesses who were
persons other than the relatives of Dolores Coronel. Knowing,
as he did, that Dolores was excluding her blood relatives from
the inheritance, in spite of her having been asked by him
whether their exclusion was due to a mere inadvertence, there
is a satisfactory explanation, compatible with honorable
conduct, why said attorney should prescind from such relatives
in the attesting of the will, to the end that no obstacle be placed
in the way to the probating thereof.
The fact that this attorney should presume that Dolores was to
ask him to sign the will for her and that he should prepare it
containing this detail is not in itself fraudulent. There was in this
case reason so to presume, and it appears that he asked her,
through Pablo Bartolome, whom she wanted to sign the
document in her stead.
No imputation can be made to this attorney of any interest in
favoring Lorenzo Pecson in the will, because the latter was
already his client at the execution of said will. Attorney
Francisco denied this fact, which we cannot consider proven
after examining the evidence.
The conduct observed by this attorney after the death of
Dolores Coronel in connection with the attempted arrangement
between Lorenzo Pecson and the opponents, does not, in our
opinion, constitute any data leading to the conclusion that an
heir different from the true one intended by the testatrix should
have been fraudulently made to appear instituted in the will
exhibit A. His attitude towards the opponents, as can be
gathered from the proceedings and especially from his letter
Exhibit D, does not show any perverse or fraudulent intent, but
rather a conciliatory purpose. It is said that such a step was well
calculated to prevent every possible opposition to the probate of
the will. Even admitting that one of his objects in entering into
such negotiations was to avoid every possible to the probate of
the will, such object is not incompatible with good faith, nor does
it necessarily justify the inference that the heir instituted in the
instrument was not the one whom the testatrix wanted
appointed.
The appellants find rather suspicious the interest shown by the
said attorney in trying to persuade Lorenzo Pecson to give them
some share of the estate. These negotiations were not carried
out by the attorney out of his own initiative, but at the instance of
the same opponent, Agustin Coronel, made by the latter in his
own behalf and that of his coopponents.
As to Lorenzo Pecson, we do not find in the record sufficient
proof to believe that he should have tried, through fraud or any
undue influence, to frustrate the alleged intention of the testatrix
to leave her estate to her blood relatives. The opponents
insinuate that Lorenzo Pecson employed Attorney Francisco to
carry out his reproachable designs, but such depraved
instrumentality was not proven, nor was it shown that said
lawyer, or Lorenzo Pecson, should have contrived or put into
execution any condemnable plan, nor that both should have
conspired for illegal purposes at the time of the preparation and
execution of the will Exhibit A.
Although Norberto Paras testified having heard, when the will
was being read to Dolores Coronel, the provision whereby the
estate was ordered distributed among the heirs, the
preponderance of the evidence is to the effect that said
Norberto Paras was not present at such reading of the will.
Appellant do not insist on the probative force of the testimony of
this witness, and do not oppose its being stricken out.
The data furnished by the case do not show, to our mind, that
Dolores Coronel should have had the intention of giving her
estate to her blood relatives instead of to Lorenzo Pecson at the
time of the execution of the will Exhibit A, nor that fraud or
whatever other illegal cause or undue influence should have
intervened in the execution of said testament. Neither fraud nor
evil is presumed and the record does not show either.
Turning to the second assignment of error, which is made to
consist in the will having been probated in spite of the fact that
the attestation clause was not in conformity with the provision of
section 618 of the Code of Civil Procedure, as amended by Act
No. 2645, let us examine the tenor of such clause which literally
is as follows:
The foregoing document was executed and declared
by Dolores Coronel to be her last will testament in our
presence, and as testatrix does not know how to write
her name, she requested Vicente J. Francisco to sign
her name under her express direction in our presence
at the foot and on the left margin of each and every
sheet hereof. In testimony whereof, each of us signed
these presents in the presence of others of the testatrix
at the foot hereof and on the margin of each and
everyone of the two pages of which this document is
composed. These sheets are numbered correlatively
with the words "one and "two on the upper part of the
face thereof.
(Sgd.) "Maximo Vergara, Sotero
Dumaual, Marcos de los Santos, Mariano L.
Crisostomo, Pablo Bartolome, Marcos de la
Cruz, Damian Crisostomo."
Appellants remark that it is not stated in this clause that the will
was signed by the witnesses in the presence of the testatrix
and of each other, as required by section 618 of the Code of
Civil Procedure, as amended, which on this particular point
provides the following:
The attestation shall state the number of sheets or
pages used, upon which the will is written, and the fact
that the testator signed the will and every page thereof,
or caused some other person to write his name, under
his express direction, in the presence of three
witnesses, and the latter witnessed and signed the will
and all pages thereof in the presence of the testator
and of each other.
Stress is laid on the phrase used in the attestation clause above
copied, to wit:
each of us signed in the presence of others.
Two interpretations can absolutely be given here to the
expression "of others." One, that insinuated by the appellants,
namely, that it is equivalent to "of other persons," and the other,
that contended by the appellee, to wit, that the phrase should be
held to mean "of the others," the article "the" having
inadvertently been omitted.
Should the first interpretation prevail and "other persons" be
taken to mean persons different from the attesting witnesses,
then one of the solemnities required by law would be lacking.
Should the second be adopted and "of others" construed as
meaning the other witnesses to the will, then the law would have
been complied with in this respect.
Including the concomitant words, the controverted phrase
results thus: "each of us signed these presents in the presence
of others and of the testatrix."
If we should omit the words "of others and," the expression
would be reduced to "each of us signed these presents in the
presence of the testatrix," and the statement that the witnesses
signed each in the presence of the others would be lacking. But
as a matter of fact, these words "of others and" are present.
Then, what for are they there? Is it to say that the witnesses
signed in the presence of other persons foreign to the execution
of the will, which is completely useless and to no purpose in the
case, or was it for some useful, rational, necessary object, such
as that of making it appear that the witnesses signed the will
each in the presence of the others? The first theory
presupposes that the one who drew the will, who is Attorney
Francisco, was an unreasonable man, which is an inadmissible
hypothesis, being repugnant to the facts shown by the record.
The second theory is the most obvious, logical and reasonable
under the circumstances. It is true that the expression proved to
be deficient. The deficiency may have been caused by the
drawer of the will or by the typist. If by the typist, then it must be
presumed to have been merely accidental. If by the drawer, it is
explainable taking into account that Spanish is not only not the
native language of the Filipinos, who, in general, still speak until
nowadays their own dialects, but also that such language is not
even the only official language since several years ago.
In Re will of Abangan (40 Phil., 476), this court said:
The object of the solemnities surrounding the
execution of wills is to close the door against bad faith
and fraud, to avoid substitution of wills and testaments
and to guarantee their truth and authenticity. Therefore
the laws on this subject should be interpreted in such a
 way as to attain these primordial ends. But, on the The judgment appealed from if affirmed with costs against the
other hand, also one must not lose sight of the fact that appellants. So ordered.
it is not the object of the law to restrain and curtail the
exercise of the right to make a will. So when an Araullo, C.J., Johnson, Street, Malcolm, Avancea, Villamor and
interpretation already given assures such ends, any Johns, JJ., concur.
other interpretation whatsoever, that adds nothing but
demands more requisite entirely unnecesary, useless
and frustrative of the testator's last will, must be
disregarded.

We believe it to be more reasonable to construe the disputed

phrase "of others" as meaning "of the other witnesses," and that
a grammatical or clerical error was committed consisting in the
omission of the article "the".

Grammatical or clerical errors are not usually considered of vital

importance when the intention is manifest in the will.

The court may correct clerical mistakes in writing, and

disregard technical rules of grammar as to the
construction of the language of the will when it
becomes necessary for it to do so in order to effectuate
the testators manifest intention as ascertained from the
context of the will. But unless a different construction is
so required the ordinary rules of grammar should be
adhered to in construing the will. (40 Cyc., 1404).

And we understand that in the present case the interpretation

we adopt is imperative, being the most adequate and
reasonable.

The case of In the matter of the estate of Geronima Uy Coque

(43 Phil., 405), decided by this court and invoked by the
appellants, refers so far as pertinent to the point herein at issue,
to an attestation clause wherein the statement that the
witnesses signed the will in the presence of each other is totally
absent. In the case at bar, there is the expression "in the
presence of others" whose reasonable interpretation is, as we
have said, "in the presence of the other witnesses." We do not
find any party between the present case and that of Re Estate
of Geronima Uy Coque above cited.

Finally, we will take up the question submitted by the opponents

as to the alleged insufficiency of the evidence to show that the
attesting witnesses Damian Crisostomo and Sotero Dumaual
were present at the execution of the will in controversy.
Although this point is raised in the first assignment of error
made by the appellants, and not in the second, it is discussed in
this place because it refers to the very fact of attestation.
However, we do not believe it necessary to analyze in detail the
evidence of both parties on this particular point. The evidence
leads us to the conclusion that the two witnesses
aforementioned were present at the execution and signing of
the will. Such is also the conclusion of the trial judge who, in this
respect, states the following, in his decision:

As to the question of whether or not the testatrix and witnesses

signed the document Exhibit A in accordance with the
provisions of law on the matter, that is, whether or not the
testatrix signed the will, or caused it to be signed, in the
presence of the witnesses, and the latter in turn signed in her
presence and that of each other, the court, after observing the
demeanor of the witnesses for both parties, is of the opinion that
those for the petitioner spoke the truth. It is neither probable nor
likely that a man versed in the law, such as Attorney Francisco,
who was present at the execution of the will in question, and to
whose conscientiousness in the matter of compliance with all
the extrinsic formalities of the execution of a will, and to nothing
else, was due the fact that the testatrix had cancelled her former
will (Exhibit B) and had new one (Exhibit A) prepared and
executed, should have consented the omission of formality
compliance with which would have required little or no effort;
namely, that of seeing to it that the testatrix and the attesting
witnesses were all present when their respective signatures
were affixed to the will." And the record does not furnish us
sufficient ground for deviating from the line reasoning and
findings of the trial judge.

In conclusion we hold that the assignments of error made by the

appellants are not supported by the evidence of record.
G.R. No. L-22036 April 30, 1979
TESTATE ESTATE OF THE LATE REVEREND FATHER
PASCUAL RIGOR. THE PARISH PRIEST OF THE ROMAN
CATHOLIC CHURCH OF VICTORIA, TARLAC, petitioner-
appellant,
vs.
BELINA RIGOR, NESTORA RIGOR, FRANCISCA ESCOBAR
DE RIGOR and JOVITA ESCOBAR DE
FAUSTO, respondents-appellees.
D. Taedo, Jr. for appellants.
J. Palanca, Sr. for appellee.
AQUINO, J.:
This case is about the efficaciousness or enforceability of a
devise of ricelands located at Guimba, Nueva Ecija, with a total
area of around forty- four hectares That devise was made in the
will of the late Father Pascual Rigor, a native of Victoria Tarlac,
in favor of his nearest male relative who would study for the
priesthood.
The parish priest of Victoria, who claimed to be a trustee of the
said lands, appealed to this Court from the decision of the Court
of Appeals affirming the order of the probate court declaring that
the said devise was inoperative (Rigor vs. Parish Priest of the
Roman Catholic Church of Victoria, Tarlac, CA-G.R. No. 24319-
R, August 1, 1963).
The record discloses that Father Rigor, the parish priest of
Pulilan, Bulacan, died on August 9, 1935, leaving a will
executed on October 29, 1933 which was probated by the Court
of First Instance of Tarlac in its order of December 5, 1935.
Named as devisees in the will were the testators nearest
relatives, namely, his three sisters: Florencia Rigor-Escobar,
Belina Rigor-Manaloto and Nestora Rigor-Quiambao. The
testator gave a devise to his cousin, Fortunato Gamalinda.
Title
No.
In addition, the will contained the following controversial bequest
(paragraphing supplied to facilitate comprehension of the
T-
testamentary provisions):
6530
Doy y dejo como legado CUATRO (4) T-
PARCELAS de terreno palayeros situados
6548 en
el municipiooo de Guimba de la provinciaaa
de NUEVA ECIJA, cuyo num. de T-
CERTIFICADO DE TRANSFERENCIA 6525DE
TITULO SON; Titulo Num. 6530, mide
16,249 m. cuadrados de superficie Titulo
T-
Num. 6548, mide 242,998 m. cuadrados 6521de
superficie y annual 6525, mide 62,665 m.
cuadrados de superficie; y Titulo Num. 6521,
mide 119,251 m. cuadrados de superficie;
a cualquier pariente mio varon mas cercano
que estudie la carrera eclesiatica hasta
ordenarse de Presbiterado o sea
Sacerdote; las condiciones de estate legado
son;
(1.a) Prohibe en absoluto la venta de estos
terrenos arriba situados objectos de este
legado;
(2.a) Que el legatario pariente mio mas
cercano tendra derecho de empezar a gozar
y administrar de este legado al principiar a
curzar la Sagrada Teologio, y ordenado de
Sacerdote, hasta su muerte; pero que pierde
el legatario este derecho de administrar y
gozar de este legado al dejar de continuar
sus estudios para ordenarse de Presbiterado
(Sacerdote).
Que el legatario una vez Sacerdote ya estara
obligado a celebrar cada ao VEINTE (20)
Misas rezadas en sufragio de mi alma y de
mis padres difuntos, y si el actual legatario,
quedase excomulgado, IPSO FACTO se le
despoja este legado, y la administracion de
esto pasara a cargo del actual Parroco y sus
sucesores de la Iglecia Catolica de Victoria,
Tarlac.
Y en intervalo de tiempo que no haya
legatario acondicionado segun lo arriba
queda expresado, pasara la administracion
de este legado a cargo del actual Parroco
Catolico y sus sucesores, de Victoria, Tarlac.
El Parroco administrador de estate legado,
acumulara, anualmente todos los productos
que puede tener estate legado, ganando o
sacando de los productos anuales el CINCO
(5) por ciento para su administracion, y los
derechos correspondientes de las VEINTE
(20) Misas rezadas que debiera el Parroco
celebrar cada ao, depositando todo lo
restante de los productos de estate legado,
en un banco, a nombre de estate legado.
To implement the foregoing bequest, the administratix in 1940
submitted a project containing the following item:
5. LEGACY OF THE CHURCH
That it be adjudicated in favor of the legacy
purported to be given to the nearest male
relative who shall take the priesthood, and in
the interim to be administered by the actual
Catholic Priest of the Roman Catholic Church
of Victoria, Tarlac, Philippines, or his
successors, the real properties hereinbelow
indicated, to wit:
Lot Area in Tax
No. Has. Dec.
3663 1.6249 18740
3445- 24.2998 18730
C
3670 6.2665 18736
3666 11.9251 18733
Total amount and value 44.1163 P13,090.00
Judge Roman A. Cruz in his order of August 15, 1940,
approving the project of partition, directed that after payment of
the obligations of the estate (including the sum of P3,132.26
due to the church of the Victoria parish) the administratrix
should deliver to the devisees their respective shares.
It may be noted that the administratrix and Judge Cruz did not
bother to analyze the meaning and implications of Father
Rigor's bequest to his nearest male relative who would study for
the priesthood. Inasmuch as no nephew of the testator claimed
the devise and as the administratrix and the legal heirs believed
that the parish priest of Victoria had no right to administer the
ricelands, the same were not delivered to that ecclesiastic. The
testate proceeding remained pending.
About thirteen years after the approval of the project of partition,
or on February 19, 1954, the parish priest of Victoria filed in the
pending testate proceeding a petition praying for the
appointment of a new administrator (succeeding the deceased
administration Florencia Rigor), who should deliver to the
church the said ricelands, and further praying that the
possessors thereof be ordered to render an accounting of the
fruits. The probate court granted the petition. A new
administrator was appointed. On January 31, 1957 the parish
priest filed another petition for the delivery of the ricelands to the
church as trustee.
The intestate heirs of Father Rigor countered with a petition
dated March 25, 1957 praying that the bequest be d inoperative
and that they be adjudged as the persons entitled to the said
ricelands since, as admitted by the parish priest of Victoria, "no
nearest male relative of" the testator "has ever studied for the
priesthood" (pp. 25 and 35, Record on Appeal). That petition
was opposed by the parish priest of Victoria.
Finding that petition to be meritorious, the lower court, through
Judge Bernabe de Aquino, declared the bequest inoperative
and adjudicated the ricelands to the testator's legal heirs in his
order of June 28, 1957. The parish priest filed two motions for
reconsideration.
Judge De Aquino granted the respond motion for
reconsideration in his order of December 10, 1957 on the
ground that the testator had a grandnephew named Edgardo G.
Cunanan (the grandson of his first cousin) who was a
seminarian in the San Jose Seminary of the Jesuit Fathers in
Quezon City. The administrator was directed to deliver the
ricelands to the parish priest of Victoria as trustee.
The legal heirs appealed to the Court of Appeals. It reversed
that order. It held that Father Rigor had created a testamentary
trust for his nearest male relative who would take the holy
orders but that such trust could exist only for twenty years
because to enforce it beyond that period would violate "the rule
against perpetuities. It ruled that since no legatee claimed the
ricelands within twenty years after the testator's death, the same
should pass to his legal heirs, citing articles 888 and 912(2) of
the old Civil Code and article 870 of the new Civil Code.
The parish priest in this appeal contends that the Court of
Appeals erred in not finding that the testator created a public
charitable trust and in not liberally construing the testamentary
provisions so as to render the trust operative and to prevent
intestacy.
As refutation, the legal heirs argue that the Court of Appeals d
the bequest inoperative because no one among the testator's
nearest male relatives had studied for the priesthood and not
because the trust was a private charitable trust. According to the
legal heirs, that factual finding is binding on this Court. They
point out that appellant priest's change of theory cannot be
countenanced in this appeal .
In this case, as in cases involving the law of contracts and
statutory construction, where the intention of the contracting
parties or of the lawmaking body is to be ascertained, the
primary issue is the determination of the testator's intention
which is the law of the case (dicat testor et erit lex. Santos vs.
Manarang, 27 Phil. 209, 215; Rodriguez vs. Court of Appeals, L-
28734, March 28, 1969, 27 SCRA 546).
The will of the testator is the first and principal law in the matter
of testaments. When his intention is clearly and precisely
expressed, any interpretation must be in accord with the plain
and literal meaning of his words, except when it may certainly
appear that his intention was different from that literally
expressed (In re Estate of Calderon, 26 Phil. 333).
The intent of the testator is the cardinal rule in the construction
of wills." It is "the life and soul of a will It is "the first greatest
rule, the sovereign guide, the polestar, in giving effect to a will".
(See Dissent of Justice Moreland in Santos vs. Manarang, 27
Phil. 209, 223, 237-8.)
One canon in the interpretation of the testamentary provisions is
that "the testator's intention is to be ascertained from the words
of the wilt taking into consideration the circumstances under
which it was made", but excluding the testator's oral
declarations as to his intention (Art. 789, Civil Code of the
Philippines).
To ascertain Father Rigor's intention, it may be useful to make
the following re-statement of the provisions of his will.
1. that he bequeathed the ricelands to anyone of his nearest
male relatives who would pursue an ecclesiastical career until
his ordination as a priest.
2. That the devisee could not sell the ricelands.
3. That the devisee at the inception of his studies in sacred
theology could enjoy and administer the ricelands, and once
ordained as a priest, he could continue enjoying and
administering the same up to the time of his death but the
devisee would cease to enjoy and administer the ricelands if he
discontinued his studies for the priesthood.
4. That if the devisee became a priest, he would be obligated to
celebrate every year twenty masses with prayers for the repose
of the souls of Father Rigor and his parents.
5. That if the devisee is excommunicated, he would be divested
of the legacy and the administration of the riceland would pass
to the incumbent parish priest of Victoria and his successors.
6. That during the interval of time that there is no qualified
devisee as contemplated above, the administration of the
ricelands would be under the responsibility of the incumbent
parish priest of Victoria and his successors, and
7. That the parish priest-administrator of the ricelands would
accumulate annually the products thereof, obtaining or getting
from the annual produce five percent thereof for his
administration and the fees corresponding to the twenty masses
with prayers that the parish priest would celebrate for each year,
depositing the balance of the income of the devise in the bank in
the name of his bequest.
From the foregoing testamentary provisions, it may be deduced
that the testator intended to devise the ricelands to his nearest
male relative who would become a priest, who was forbidden to
sell the ricelands, who would lose the devise if he discontinued
his studies for the priesthood, or having been ordained a priest,
he was excommunicated, and who would be obligated to say
annually twenty masses with prayers for the repose of the souls
of the testator and his parents.
On the other hand, it is clear that the parish priest of Victoria
would administer the ricelands only in two situations: one,
during the interval of time that no nearest male relative of the
testator was studying for the priesthood and two, in case the
testator's nephew became a priest and he was
excommunicated.
What is not clear is the duration of "el intervalo de tiempo que
no haya legatario acondicionado", or how long after the
testator's death would it be determined that he had a nephew
who would pursue an ecclesiastical vocation. It is that patent
ambiguity that has brought about the controversy between the
parish priest of Victoria and the testator's legal heirs.
Interwoven with that equivocal provision is the time when the
nearest male relative who would study for the priesthood should
be determined. Did the testator contemplate only his nearest
male relative at the time of his death? Or did he have in mind
any of his nearest male relatives at anytime after his death?
We hold that the said bequest refers to the testator's nearest
male relative living at the time of his death and not to any
indefinite time thereafter. "In order to be capacitated to inherit,
the heir, devisee or legatee must be living at the moment the
succession opens, except in case of representation, when it is
proper" (Art. 1025, Civil Code).
The said testamentary provisions should be sensibly or
reasonably construed. To construe them as referring to the
testator's nearest male relative at anytime after his death would
render the provisions difficult to apply and create uncertainty as
to the disposition of his estate. That could not have been his
intention.
In 1935, when the testator died, his nearest leagal heirs were
his three sisters or second-degree relatives, Mrs. Escobar, Mrs.
Manaloto and Mrs. Quiambao. Obviously, when the testator
specified his nearest male relative, he must have had in mind
his nephew or a son of his sister, who would be his third-degree
relative, or possibly a grandnephew. But since he could not
prognosticate the exact date of his death or state with certitude
what category of nearest male relative would be living at the
time of his death, he could not specify that his nearest male
relative would be his nephew or grandnephews (the son of his
nephew or niece) and so he had to use the term "nearest male
relative".
It is contended by the legal heirs that the said devise was in
reality intended for Ramon Quiambao, the testator's nephew
and godchild, who was the son of his sister, Mrs. Quiambao. To
prove that contention, the legal heirs presented in the lower
court the affidavit of Beatriz Gamalinda, the maternal
grandmother of Edgardo Cunanan, who deposed that after
Father Rigor's death her own son, Valentin Gamalinda, Jr., did
not claim the devise, although he was studying for the
priesthood at the San Carlos Seminary, because she (Beatriz)
knew that Father Rigor had intended that devise for his nearest
male relative beloning to the Rigor family (pp. 105-114, Record
on Appeal).
Mrs. Gamalinda further deposed that her own grandchild,
Edgardo G. Cunanan, was not the one contemplated in Father
Rigor's will and that Edgardo's father told her that he was not
consulted by the parish priest of Victoria before the latter filed
his second motion for reconsideration which was based on the
ground that the testator's grandnephew, Edgardo, was studying
for the priesthood at the San Jose Seminary.
Parenthetically, it should be stated at this juncture that Edgardo
ceased to be a seminarian in 1961. For that reason, the legal
heirs apprised the Court of Appeals that the probate court's
order adjudicating the ricelands to the parish priest of Victoria
had no more leg to stand on (p. 84, Appellant's brief).
Of course, Mrs. Gamalinda's affidavit, which is tantamount to
evidence aliunde as to the testator's intention and which is
hearsay, has no probative value. Our opinion that the said
bequest refers to the testator's nephew who was living at the
time of his death, when his succession was opened and the
successional rights to his estate became vested, rests on a
judicious and unbiased reading of the terms of the will.
Had the testator intended that the "cualquier pariente mio varon
mas cercano que estudie la camera eclesiatica" would include
indefinitely anyone of his nearest male relatives born after his
death, he could have so specified in his will He must have
known that such a broad provision would suspend for an
unlimited period of time the efficaciousness of his bequest.
(Father) Pascual Rigor has ever studied for the priesthood" (pp.
25 and 35, Record on Appeal).
Inasmuch as the testator was not survived by any nephew who
became a priest, the unavoidable conclusion is that the bequest
in question was ineffectual or inoperative. Therefore, the
administration of the ricelands by the parish priest of Victoria, as
envisaged in the wilt was likewise inoperative.
The appellant in contending that a public charitable trust was
constituted by the testator in is favor assumes that he was a
trustee or a substitute devisee That contention is untenable. A
reading of the testamentary provisions regarding the disputed
bequest not support the view that the parish priest of Victoria
was a trustee or a substitute devisee in the event that the
testator was not survived by a nephew who became a priest.
It should be understood that the parish priest of Victoria could
become a trustee only when the testator's nephew living at the
time of his death, who desired to become a priest, had not yet
entered the seminary or, having been ordained a priest, he was
excommunicated. Those two contingencies did not arise, and
could not have arisen in this case because no nephew of the
testator manifested any intention to enter the seminary or ever
became a priest.
The Court of Appeals correctly ruled that this case is covered by
article 888 of the old Civil Code, now article 956, which provides
that if "the bequest for any reason should be inoperative, it shall
be merged into the estate, except in cases of substitution and
those in which the right of accretion exists" ("el legado ... por
qualquier causa, no tenga efecto se refundira en la masa de la
herencia, fuera de los casos de sustitucion y derecho de
acrecer").
This case is also covered by article 912(2) of the old Civil Code,
now article 960 (2), which provides that legal succession takes
place when the will "does not dispose of all that belongs to the
testator." There being no substitution nor accretion as to the
said ricelands the same should be distributed among the
testator's legal heirs. The effect is as if the testator had made no
disposition as to the said ricelands.
The Civil Code recognizes that a person may die partly testate
and partly intestate, or that there may be mixed succession. The
old rule as to the indivisibility of the testator's win is no longer
valid. Thus, if a conditional legacy does not take effect, there will
be intestate succession as to the property recovered by the said
legacy (Macrohon Ong Ham vs. Saavedra, 51 Phil. 267).
We find no merit in the appeal The Appellate Court's decision is
affirmed. Costs against the petitioner.
SO ORDERED

What then did the testator mean by "el intervalo de tiempo que
no haya legatario acondicionado"? The reasonable view is that
he was referring to a situation whereby his nephew living at the
time of his death, who would like to become a priest, was still in
grade school or in high school or was not yet in the seminary. In
that case, the parish priest of Victoria would administer the
ricelands before the nephew entered the seminary. But the
moment the testator's nephew entered the seminary, then he
would be entitled to enjoy and administer the ricelands and
receive the fruits thereof. In that event, the trusteeship would be
terminated.

Following that interpretation of the will the inquiry would be

whether at the time Father Rigor died in 1935 he had a nephew
who was studying for the priesthood or who had manifested his
desire to follow the ecclesiastical career. That query is
categorically answered in paragraph 4 of appellant priest's
petitions of February 19, 1954 and January 31, 1957. He
unequivocally alleged therein that "not male relative of the late
 EN BANC
G.R. No. L-23079 February 27, 1970
RUBEN AUSTRIA, CONSUELO AUSTRIA-BENTA and
LAURO AUSTRIA MOZO, petitioners,
vs.
HON. ANDRES REYES, Judge, Court of First Instance of
Rizal, PERFECTO CRUZ, BENITA CRUZ-MENEZ ISAGANI
CRUZ, ALBERTO CRUZ and LUZ CRUZ-
SALONGA respondents.
Salonga, Ordoez, Yap, Sicat and Associates for petitioners.
Ruben Austria for himself and co-petitioners.
De los Santos, De los Santos and De los Santos for respondent
Perfecto Cruz.
Villareal, Almacen, Navarra and Amores for other respondents.
CASTRO, J.:
On July 7, 1956 Basilia Austria vda. de Cruz filed with the Court
of First Instance of Rizal (Special Proceedings 2457) a petition
for probate, ante mortem, of her last will and testament. The
probate was opposed by the present petitioners Ruben Austria,
Consuelo Austria-Benta and Lauro Austria Mozo, and still others
who, like the petitioner, are nephews and nieces of Basilia. This
opposition was, however, dismissed and the probate of the will
allowed after due hearing.
The bulk of the estate of Basilia, admittedly, was destined under
the will to pass on to the respondents Perfecto Cruz, Benita
Cruz-Meez, Isagani Cruz, Alberto Cruz, and Luz Cruz-
Salonga, all of whom had been assumed and declared by
Basilia as her own legally adopted children.
On April 23, 1959, more than two years after her will was
allowed to probate, Basilia died. The respondent Perfecto Cruz
was appointed executor without bond by the same court in
accordance with the provisions of the decedent's will,
notwithstanding the blocking attempt pursued by the petitioner
Ruben Austria.
Finally, on November 5, 1959, the present petitioners filed in the
same proceedings a petition in intervention for partition alleging
in substance that they are the nearest of kin of Basilia, and that
the five respondents Perfecto Cruz, et al., had not in fact been
adopted by the decedent in accordance with law, in effect
rendering these respondents mere strangers to the decedent
and without any right to succeed as heirs.
Notwithstanding opposition by the respondent Perfecto Cruz, as
executor of the estate, the court a quo allowed the petitioners'
intervention by its order of December 22, 1959, couched in
broad terms, as follows: "The Petition in Intervention for Partition
filed by the above-named oppositors [Ruben Austria, et al.,]
dated November 5, 1959 is hereby granted."
In the meantime, the contending sides debated the matter of
authenticity or lack of it of the several adoption papers produced
and presented by the respondents. On motion of the petitioners
Ruben Austria, et al., these documents were referred to the
National Bureau of Investigation for examination and advice.
N.B.I. report seems to bear out the genuineness of the
documents, but the petitioners, evidently dissatisfied with the
results, managed to obtain a preliminary opinion from a
Constabulary questioned-document examiner whose views
undermine the authenticity of the said documents. The
petitioners Ruben Austria, et al., thus moved the lower court to
refer the adoption papers to the Philippine Constabulary for
further study. The petitioners likewise located former personnel
of the court which appeared to have granted the questioned
adoption, and obtained written depositions from two of them
denying any knowledge of the pertinent adoption proceedings.
On February 6, 1963, more than three years after they were
allowed to intervene, the petitioners Ruben Austria, let al.,
moved the lower court to set for hearing the matter of the
genuineness of the adoption of the respondents Perfecto Cruz,
et al., by the late Basilia. Before the date set by the court for
hearing arrived, however, the respondent Benita Cruz-Meez
who entered an appearance separately from that of her brother
Perfecto Cruz, filed on February 28, 1963 a motion asking the
lower court, by way of alternative relief, to confine the
petitioners' intervention, should it be permitted, to properties not
disposed of in the will of the decedent.
On March 4, 1963, the lower court heard the respondent
Benita's motion. Both sides subsequently submitted their
respective memoranda, and finally, the lower court issued an
order on June 4, 1963, delimiting the petitioners' intervention to
the properties of the deceased which were not disposed of in
the will.
The petitioners moved the lower court to reconsider this latest
order, eliciting thereby an opposition, from the respondents. On
October 25, 1963 the same court denied the petitioners' motion
for reconsideration.
A second motion for reconsideration which set off a long
exchange of memoranda from both sides, was summarily
denied on April 21, 1964.
Hence this petition for certiorari, praying this Court to annul the
orders of June 4 and October 25, 1963 and the order of April 21,
1964, all restricting petitioners' intervention to properties that
were not included in the decedent's testamentary dispositions.
The uncontested premises are clear. Two interests are locked in
dispute over the bulk of the estate of the deceased. Arrayed on
one side are the petitioners Ruben Austria, Consuelo Austria-
Benta and Lauro Austria Mozo, three of a number of nephews
and nieces who are concededly the nearest surviving blood
relatives of the decedent. On the other side are the respondents
brothers and sisters, Perfecto Cruz, Benita Cruz-Meez, Isagani
Cruz, Alberto Cruz and Luz Cruz-Salonga, all of whom heirs in
the will of the deceased Basilia, and all of whom claim kinship
with the decedent by virtue of legal adoption. At the heart of the
controversy is Basilia's last will immaculate in its extrinsic
validity since it bears the imprimatur of duly conducted probate
proceedings.
The complaint in intervention filed in the lower court assails the
legality of the tie which the respondent Perfecto Cruz and his
brothers and sisters claim to have with the decedent. The lower
court had, however, assumed, by its orders in question, that the
validity or invalidity of the adoption is not material nor decisive
on the efficacy of the institution of heirs; for, even if the adoption
in question were spurious, the respondents Perfecto Cruz, et al.,
will nevertheless succeed not as compulsory heirs but as
testamentary heirs instituted in Basilia's will. This ruling
apparently finds support in article, 842 of the Civil Code which
reads:
One who has no compulsory heirs may
dispose of by will all his estate or any part of it
in favor of any person having capacity to
succeed.
One who has compulsory heirs may dispose
of his estate provided he does not contravene
the provisions of this Code with regard to the
legitime of said heirs.
The lower court must have assumed that since the petitioners
nephews and niece are not compulsory heirs, they do not
possess that interest which can be prejudiced by a free-
wheeling testamentary disposition. The petitioners' interest is
confined to properties, if any, that have not been disposed of in
the will, for to that extent intestate succession can take place
and the question of the veracity of the adoption acquires
relevance.
The petitioners nephews and niece, upon the other hand, insist
that the entire estate should descend to them by intestacy by
reason of the intrinsic nullity of the institution of heirs embodied
in the decedent's will. They have thus raised squarely the issue
of whether or not such institution of heirs would retain efficacy in
the event there exists proof that the adoption of the same heirs
by the decedent is false.
The petitioners cite, as the controlling rule, article 850 of the
Civil Code which reads:
The statement of a false cause for the
institution of an heir shall be considered as
not written, unless it appears from the will that
the testator would not have made such
institution if he had known the falsity of such
cause.
Coming closer to the center of the controversy, the petitioners
have called the attention of the lower court and this Court to the
following pertinent portions of the will of the deceased which
recite:
III
Ang aking mga sapilitang tagapagmana
(herederos forzosos) ay ang aking itinuturing
na mga anak na tunay (Hijos legalmente
adoptados) na sina Perfecto, Alberto, Luz,
Benita at Isagani, na pawang may apelyidong
Cruz.
xxx xxx xxx
Kung ako ay bawian ng Dios ng buhay, ay
aking ipinamamana ang aking mga ari-ariang
maiiwan, sa kaparaanang sumusunod:
A.Aking ipinamamana sa aking nabanggit
na limang anak na sina Perfecto, Alberto, Luz,
Benita at Isagani, na pawang may apelyidong
Cruz, na parepareho ang kaparti ng bawa't isa
at walang lamangan (en partes iguales),
bilang kanilang sapilitang mana (legiti[ma]),
ang kalahati () ng aking kaparti sa lahat ng
aming ari-ariang gananciales ng aking
yumaong asawang Pedro Cruz na
napapaloob sa Actuacion Especial No. 640 ng
Hukumang Unang Dulugan ng Rizal at
itinutukoy sa No. 1 ng parafo IV ng
testamentong ito, ang kalahati () ng mga
lagay na lupa at palaisdaan na nasa Obando
at Polo, Bulacan, na namana ko sa aking
yumaong ama na si Calixto Austria, at ang
kalahati () ng ilang lagay na lupa na nasa
Tinejeros, Malabon, Rizal, na aking namana
sa yumao kong kapatid na si Fausto Austria.
The tenor of the language used, the petitioners argue, gives rise
to the inference that the late Basilia was deceived into believing
that she was legally bound to bequeath one-half of her entire
estate to the respondents Perfecto Cruz, et al. as the latter's
legitime. The petitioners further contend that had the deceased
known the adoption to be spurious, she would not have
instituted the respondents at all the basis of the institution
being solely her belief that they were compulsory heirs. Proof
therefore of the falsity of the adoption would cause a nullity of
the institution of heirs and the opening of the estate wide to
intestacy. Did the lower court then abuse its discretion or act in
violation of the rights of the parties in barring the petitioners
nephews and niece from registering their claim even to
properties adjudicated by the decedent in her will?
Before the institution of heirs may be annulled under article 850
of the Civil Code, the following requisites must concur: First, the
cause for the institution of heirs must be stated in the
will; second, the cause must be shown to be false; and third, it
must appear from the face of the will that the testator would not
have made such institution if he had known the falsity of the
cause.
The petitioners would have us imply, from the use of the terms,
"sapilitang tagapagmana" (compulsory heirs) and "sapilitang
mana" (legitime), that the impelling reason or cause for the
institution of the respondents was the testatrix's belief that under
the law she could not do otherwise. If this were indeed what
prompted the testatrix in instituting the respondents, she did not
make it known in her will. Surely if she was aware that
succession to the legitime takes place by operation of law,
independent of her own wishes, she would not have found it
convenient to name her supposed compulsory heirs to their
legitimes. Her express adoption of the rules on legitimes should
very well indicate her complete agreement with that statutory
scheme. But even this, like the petitioners' own proposition, is
highly speculative of what was in the mind of the testatrix when
she executed her will. One fact prevails, however, and it is that
the decedent's will does not state in a specific or unequivocal
manner the cause for such institution of heirs. We cannot annul
the same on the basis of guesswork or uncertain implications.
And even if we should accept the petitioners' theory that the
decedent instituted the respondents Perfecto Cruz, et al. solely
because she believed that the law commanded her to do so, on
the false assumption that her adoption of these respondents
was valid, still such institution must stand.
Article 850 of the Civil Code, quoted above, is a positive
injunction to ignore whatever false cause the testator may have
written in his will for the institution of heirs. Such institution may
be annulled only when one is satisfied, after an examination of
the will, that the testator clearly would not have made the
institution if he had known the cause for it to be false. Now,
would the late Basilia have caused the revocation of the
institution of heirs if she had known that she was mistaken in
treating these heirs as her legally adopted children? Or would
she have instituted them nonetheless?
The decedent's will, which alone should provide the answer, is
mute on this point or at best is vague and uncertain. The
phrases, "mga sapilitang tagapagmana" and "sapilitang
mana," were borrowed from the language of the law on
succession and were used, respectively, to describe the class of
heirs instituted and the abstract object of the inheritance. They
offer no absolute indication that the decedent would have willed
her estate other than the way she did if she had known that she
was not bound by law to make allowance for legitimes. Her
disposition of the free portion of her estate (libre disposicion)
which largely favored the respondent Perfecto Cruz, the latter's
children, and the children of the respondent Benita Cruz, shows
a perceptible inclination on her part to give to the respondents
more than what she thought the law enjoined her to give to
them. Compare this with the relatively small devise of land
which the decedent had left for her blood relatives, including the
petitioners Consuelo Austria-Benta and Lauro Mozo and the
children of the petitioner Ruben Austria. Were we to exclude the
respondents Perfecto Cruz, et al. from the inheritance, then the
petitioners and the other nephews and nieces would succeed to
the bulk of the testate by intestacy a result which would
subvert the clear wishes of the decedent.
Whatever doubts one entertains in his mind should be swept
away by these explicit injunctions in the Civil Code: "The words
of a will are to receive an interpretation which will give to every
expression some effect, rather than one which will render any of
the expressions inoperative; and of two modes of interpreting a
will, that is to be preferred which will prevent intestacy." 1
Testacy is favored and doubts are resolved on its side,
especially where the will evinces an intention on the part of the
testator to dispose of practically his whole estate, 2 as was done
in this case. Moreover, so compelling is the principle that
intestacy should be avoided and the wishes of the testator
allowed to prevail, that we could even vary the language of the
will for the purpose of giving it effect.3 A probate court has
found, by final judgment, that the late Basilia Austria Vda. de
Cruz was possessed of testamentary capacity and her last will
executed free from falsification, fraud, trickery or undue
influence. In this situation, it becomes our duty to give full
expression to her will.4

At all events, the legality of the adoption of the respondents by

the testatrix can be assailed only in a separate action brought
for that purpose, and cannot be the subject of a collateral
attack.5

To the petitioners' charge that the lower court had no power to

reverse its order of December 22, 1959, suffice it to state that,
as borne by the records, the subsequent orders complained of
served merely to clarify the first an act which the court could
legally do. Every court has the inherent power to amend and
control its processes and orders so as to make them
conformable to law and justices.6 That the court a quo has
limited the extent of the petitioners' intervention is also within its
powers as articulated by the Rules of Court. 7

ACCORDINGLY, the present petition is denied, at petitioners

cost.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar,

Fernando, Teehankee, Barredo and Villamor, JJ., concur.
G.R. No. L-23445 June 23, 1966
REMEDIOS NUGUID, petitioner and appellant,
vs.
FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and
appellees.
Custodio O. Partade for petitioner and appellant.
Beltran, Beltran and Beltran for oppositors and appellees.
SANCHEZ, J.:
Rosario Nuguid, a resident of Quezon City, died on December
30, 1962, single, without descendants, legitimate or illegitimate.
Surviving her were her legitimate parents, Felix Nuguid and Paz
Salonga Nuguid, and six (6) brothers and sisters, namely:
Alfredo, Federico, Remedios, Conrado, Lourdes and Alberto, all
surnamed Nuguid.
On May 18, 1963, petitioner Remedios Nuguid filed in the Court
of First Instance of Rizal a holographic will allegedly executed
by Rosario Nuguid on November 17, 1951, some 11 years
before her demise. Petitioner prayed that said will be admitted
to probate and that letters of administration with the will
annexed be issued to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid,
concededly the legitimate father and mother of the deceased
Rosario Nuguid, entered their opposition to the probate of her
will. Ground therefor, inter alia, is that by the institution of
petitioner Remedios Nuguid as universal heir of the deceased,
oppositors who are compulsory heirs of the deceased in the
direct ascending line were illegally preterited and that in
consequence the institution is void.
On August 29, 1963, before a hearing was had on the petition
for probate and objection thereto, oppositors moved to dismiss
on the ground of absolute preterition.
On September 6, 1963, petitioner registered her opposition to
the motion to dismiss.1wph1.t
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.
1. Right at the outset, a procedural aspect has engaged our
attention. The case is 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 by law prescribed, are the
questions solely to be presented, 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
A peculiar situation is here thrust upon us. The parties shunted
aside the question of whether or not the will should be allowed
probate. For them, the meat of the case is the intrinsic validity of
the will. Normally, this comes only after the court has declared
that the will has been duly authenticated. 2 But petitioner and
oppositors, in the court below and here on appeal, travelled on
the issue of law, to wit: Is the will intrinsically a nullity?
We pause to reflect. If the case were to be remanded for
probate of the will, nothing will be gained. On the contrary, this
litigation will be protracted. And for aught that appears in the
record, in the event of probate or if the court rejects the will,
probability exists that the case will come up once again before
us on the same issue of the intrinsic validity or nullity of the will.
Result: waste of time, effort, expense, plus added anxiety.
These are the practical considerations that induce us to a belief
that we might as well meet head-on the issue of the validity of
the provisions of the will in question.3 After all, there exists a
justiciable controversy crying for solution.
2. Petitioner's sole assignment of error challenges the
correctness of the conclusion below that the will is a complete
nullity. This exacts from us a study of the disputed will and the
applicable statute.
Reproduced hereunder is the will:
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 Nuguid,
age 34, residing with me at 38-B Iriga, Q.C. In witness whereof,
I have signed my name this seventh day of November, nineteen
hundred and fifty-one.
(Sgd.) Illegible
T/ ROSARIO NUGUID
The statute we are called upon to apply in 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; but the devises and legacies shall be valid
insofar as they are not inofficious. ...
Except for inconsequential variation in terms, the foregoing is a
reproduction of Article 814 of the Civil Code of Spain of 1889,
which is similarly herein copied, thus
Art. 814. The preterition of one or all of the forced 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 void the institution of heir; but the
legacies and betterments4 shall be valid, in so far as
they are not inofficious. ...
A comprehensive understanding of the
term preterition employed in the law becomes a necessity. On
this point Manresa comments:
La pretericion consiste en omitar al heredero en el
testamento. O no se le nombra siquiera o aun
nombrandole como padre, hijo, etc., no se le instituya
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.
Para que exista pretericion, con arreglo al articulo 814,
basta que en el testamento omita el testador a uno
cualquiera de aquellos a quienes por su muerte
corresponda la herencia forzosa.
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.
It may now appear trite bat nonetheless helpful in giving us a
clear perspective of the problem before us, to have on hand a
clear-cut definition of the word annul:
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 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. N.J.S.A. 2:50 38 (now N.J.S.
 2A:34-35). Madden vs. Madden, 40 A. 2d 611, 614,
136 N..J Eq. 132.7
ANNUL. To reduce to nothing; annihilate; obliterate; to
make void or of no effect; to nullify; to abolish; to do
away with. Ex parte Mitchell, 123 W. Va. 283, 14 S.E.
2d. 771, 774.8
And now, back to the facts and the law. The deceased Rosario
Nuguid left no descendants, legitimate or illegitimate. But she
left forced heirs in the direct ascending line her parents, now
oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will
completely omits both of them: They thus received nothing by
the testament; tacitly, they were deprived of their legitime;
neither were they expressly disinherited. This is a clear case of
preterition. Such preterition in the words of Manresa "anulara
siempre la institucion de heredero, dando caracter absoluto a
este ordenamiento referring to the mandate of Article 814, now
854 of the Civil Code.9 The one-sentence will here institutes
petitioner as the sole, universal heir nothing more. No
specific legacies or bequests are therein provided for. It is in this
posture that we say that the nullity is complete. Perforce,
Rosario Nuguid died intestate. Says Manresa:
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 prejudique a la legitima del
deseheredado 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
The same view is expressed by Sanchez Roman:
La consecuencia 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
sucesion intestada total o parcial. Sera total, cuando el
testador que comete la pretericion, hubiese dispuesto
de todos los bienes por titulo universal de herencia en
favor de los herederos instituidos, cuya institucion se
anula, porque asi lo exige la generalidad del precepto
legal del art. 814, al determinar, como efecto de la
pretericion, el de que "anulara la institucion de
heredero." ... 11
Really, as we analyze the word annul employed in the statute,
there is no escaping the conclusion that the universal institution
of petitioner to the entire inheritance results in totally
abrogating the will. Because, the nullification of such institution
of universal heir without any other testamentary disposition in
the will amounts to a declaration that nothing at all was
written. Carefully worded and in clear terms, Article 854 offers
no leeway for inferential interpretation. Giving it an expansive
meaning will tear up by the roots the fabric of the statute. On
this point, Sanchez Roman cites the "Memoria annual del
Tribunal Supreme, correspondiente a 1908", which in our
opinion expresses the rule of interpretation, viz:
... El art. 814, que preceptua en tales casos de
pretericion la nulidad de la institucion de heredero, no
consiente interpretacion alguna favorable a la persona
instituida en el sentido antes expuesto aun cuando
parezca, y en algun caso pudiera ser, mas o menos
equitativa, porque una nulidad no significa en Derecho
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 en todo caso, como
habria que llamar a los de otra clase, cuando el
testador no hubiese distribudo 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 sea 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 constituiria una
interpretacion arbitraria, dentro del derecho positivo,
reputar como legatario a un heredero cuya institucion
fuese anulada con pretexto de que esto se acomodaba
mejor a la voluntad del testador, pues aun cuando asi
fuese, sera esto razon para modificar la ley, pero no
autoriza a una interpretacion contraria a sus terminos y
a los principios que informan la testamentifaccion,
pues no porque parezca mejor una cosa en el terreno
del Derecho constituyente, hay razon para convereste
juicio en regla de interpretacion, desvirtuando y
anulando por este procedimiento lo que el legislador
quiere establecer. 12
3. We should not be led astray by the statement in Article 854
that, annullment notwithstanding, "the devises and legacies
shall be valid insofar as they are not inofficious". Legacies and
devises merit consideration only when they are so expressly
given as such in a will. Nothing in Article 854 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 be, in
addition to such institution, a testamentary disposition granting
him bequests or legacies apart and separate from the nullified
institution of heir. Sanchez Roman, speaking of the two
component parts of Article 814, now 854, states that preterition
annuls the institution of the heir "totalmente por la pretericion";
but added (in reference to legacies and bequests) "pero
subsistiendo ... todas aquellas otras disposiciones que no se
refieren a la institucion de heredero ... . 13 As Manresa puts it,
annulment throws open to intestate succession the entire
inheritance including "la porcion libre (que) no hubiese
dispuesto en virtud de legado, mejora o donacion. 14
As aforesaid, there is no other provision in the will before us
except the institution of petitioner as universal heir. That
institution, by itself, is null and void. And, intestate succession
ensues.
4. Petitioner's mainstay is that the present is "a case of
ineffective disinheritance rather than one of preterition". 15From
this, petitioner draws the conclusion that Article 854 "does not
apply to the case at bar". This argument fails to appreciate the
distinction between pretention 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 privacion expresa de la legitima
constituye la desheredacion. La privacion tacita de la misma se
denomina pretericion." 18 Sanchez Roman emphasizes the
distinction by stating that disinheritance "es siempre voluntaria";
preterition, upon the other hand, is presumed to be
"involuntaria". 19 Express as disinheritance should be, the same
must be supported by a legal cause specified in the will itself. 20
The will here does not explicitly disinherit the testatrix's parents,
the forced heirs. It simply omits their names altogether. Said will
rather than be labeled ineffective disinheritance is clearly one in
which the said forced heirs suffer from preterition.
On top of this is the fact that the effects flowing from preterition
are totally different from those of disinheritance. Preterition
under Article 854 of the Civil Code, we repeat, "shall annul the
institution of heir". This annulment is in toto, unless in the will
there are, in addition, testamentary dispositions in the form of
devises or legacies. In ineffective disinheritance under Article
918 of the same Code, such disinheritance shall also "annul the
institution of heirs", put only "insofar as it may prejudice the
person disinherited", which last phrase was omitted in the case
of preterition. 21 Better stated yet, in disinheritance the nullity
is limited to that portion of the estate of which the disinherited
heirs have been illegally deprived. Manresa's expressive
language, in commenting on the rights of the preterited heirs in
the case of preterition on the one hand and legal disinheritance
on the other, runs thus: "Preteridos, adquiren el derecho a
todo; desheredados, solo les corresponde un tercio o dos
tercios, 22 el caso. 23
5. Petitioner insists that the compulsory heirs ineffectively
disinherited are entitled to receive their legitimes, but that the
institution of heir "is not invalidated," although the inheritance of
the heir so instituted is reduced to the extent of said legitimes. 24

This is best answered by a reference to the opinion of Mr. Chief

Justice Moran in the Neri case heretofore cited, viz:

But the theory is advanced that the bequest made by

universal title in favor of the children by the second
marriage should be treated as legado and mejora and,
accordingly, it must not be entirely annulled but merely
reduced. This theory, if adopted, will result in a
complete abrogation of Articles 814 and 851 of the
Civil Code. If every case of institution of heirs may be
made to fall into the concept of legacies and
betterments reducing the bequest accordingly, then the
provisions of Articles 814 and 851 regarding total or
partial nullity of the institution, would. be absolutely
meaningless and will never have any application at all.
And the remaining provisions contained in said article
concerning the reduction of inofficious legacies or
betterments would be a surplusage because they
would be absorbed by Article 817. Thus, instead of
construing, we would be destroying integral provisions
of the Civil Code.

The destructive effect of the theory thus advanced is

due mainly to a failure to distinguish institution of heirs
from legacies and betterments, and a general from a
special provision. With reference to article 814, which
is the only provision material to the disposition of this
case, it must be observed that the institution of heirs is
therein dealt with as a thing separate and distinct from
legacies or betterments. And they are separate and
distinct not only because they are distinctly and
separately treated in said article but because they are
in themselves different. Institution of heirs is a bequest
by universal title of property that is undetermined.
Legacy refers to specific property bequeathed by a
particular or special title. ... But again an institution of
heirs cannot be taken as a legacy. 25

The disputed order, we observe, declares the will in question "a

complete nullity". Article 854 of the Civil Code in turn merely
nullifies "the institution of heir". Considering, however, that the
will before us solely provides for the institution of petitioner as
universal heir, and nothing more, the result is the same. The
entire will is null.

Upon the view we take of this case, the order of November 8,

1963 under review is hereby affirmed. No costs allowed. So
ordered.
G.R. No. 72706 October 27, 1987
CONSTANTINO C. ACAIN, petitioner,
vs.
HON. INTERMEDIATE APPELLATE COURT (Third Special
Cases Division), VIRGINIA A. FERNANDEZ and ROSA
DIONGSON, respondents.
PARAS, J.:
This is a petition for review on certiorari of the decision * of
respondent. Court of Appeals in AC-G.R. SP No. 05744
promulgated on August 30, 1985 (Rollo, p. 108) ordering the
dismissal of the petition in Special Proceedings No, 591 ACEB
and its Resolution issued on October 23, 1985 (Rollo, p. 72)
denying respondents' (petitioners herein) motion for
reconsideration.
The dispositive portion of the questioned decision reads as
follows:
WHEREFORE, the petition is hereby granted
and respondent Regional Trial Court of the
Seventh Judicial Region, Branch XIII (Cebu
City), is hereby ordered to dismiss the petition
in Special Proceedings No. 591 ACEB No
special pronouncement is made as to costs.
The antecedents of the case, based on the summary of the
Intermediate Appellate Court, now Court of Appeals, (Rollo, pp.
108-109) are as follows:
On May 29, 1984 petitioner Constantino Acain filed on the
Regional Trial Court of Cebu City Branch XIII, a petition for the
probate of the will of the late Nemesio Acain and for the
issuance to the same petitioner of letters testamentary,
docketed as Special Proceedings No. 591 ACEB (Rollo, p. 29),
on the premise that Nemesio Acain died leaving a will in which
petitioner and his brothers Antonio, Flores and Jose and his
sisters Anita, Concepcion, Quirina and Laura were instituted as
heirs. The will allegedly executed by Nemesio Acain on
February 17, 1960 was written in Bisaya (Rollo, p. 27) with a
translation in English (Rollo, p. 31) submi'tted by petitioner
without objection raised by private respondents. The will
contained provisions on burial rites, payment of debts, and the
appointment of a certain Atty. Ignacio G. Villagonzalo as the
executor of the testament. On the disposition of the testator's
property, the will provided:
THIRD: All my shares that I may receive from
our properties. house, lands and money which
I earned jointly with my wife Rosa Diongson
shall all be given by me to my brother
SEGUNDO ACAIN Filipino, widower, of legal
age and presently residing at 357-C
Sanciangko Street, Cebu City. In case my
brother Segundo Acain pre-deceased me, all
the money properties, lands, houses there in
Bantayan and here in Cebu City which
constitute my share shall be given to me to
his children, namely: Anita, Constantino,
Concepcion, Quirina, laura, Flores, Antonio
and Jose, all surnamed Acain.
Obviously, Segundo pre-deceased Nemesio. Thus it is the
children of Segundo who are claiming to be heirs, with
Constantino as the petitioner in Special Proceedings No. 591
ACEB
After the petition was set for hearing in the lower court on June
25, 1984 the oppositors (respondents herein Virginia A.
Fernandez, a legally adopted daughter of tile deceased and the
latter's widow Rosa Diongson Vda. de Acain filed a motion to
dismiss on the following grounds for the petitioner has no legal
capacity to institute these proceedings; (2) he is merely a
universal heir and (3) the widow and the adopted daughter have
been pretirited. (Rollo, p. 158). Said motion was denied by the
trial judge.
After the denial of their subsequent motion for reconsideration in
the lower court, respondents filed with the Supreme Court a
petition for certiorari and prohibition with preliminary injunction
which was subsequently referred to the Intermediate Appellate
Court by Resolution of the Court dated March 11, 1985
(Memorandum for Petitioner, p. 3; Rollo, p. 159).
Respondent Intermediate Appellate Court granted private
respondents' petition and ordered the trial court to dismiss the
petition for the probate of the will of Nemesio Acain in Special
Proceedings No. 591 ACEB
His motion for reconsideration having been denied, petitioner
filed this present petition for the review of respondent Court's
decision on December 18, 1985 (Rollo, p. 6). Respondents'
Comment was filed on June 6, 1986 (Rollo, p. 146).
On August 11, 1986 the Court resolved to give due course to
the petition (Rollo, p. 153). Respondents' Memorandum was
filed on September 22, 1986 (Rollo, p. 157); the Memorandum
for petitioner was filed on September 29, 1986 (Rollo, p. 177).
Petitioner raises the following issues (Memorandum for
petitioner, p. 4):
(A) The petition filed in AC-G.R. No. 05744 for
certiorari and prohibition with preliminary
injunction is not the proper remedy under the
premises;
(B) The authority of the probate courts is
limited only to inquiring into the extrinsic
validity of the will sought to be probated and it
cannot pass upon the intrinsic validity thereof
before it is admitted to probate;
(C) The will of Nemesio Acain is valid and
must therefore, be admitted to probate. The
preterition mentioned in Article 854 of the
New Civil Code refers to preterition of
"compulsory heirs in the direct line," and does
not apply to private respondents who are not
compulsory heirs in the direct line; their
omission shall not annul the institution of
heirs;
(D) DICAT TESTATOR ET MERIT LEX. What
the testator says will be the law;
(E) There may be nothing in Article 854 of the
New Civil Code, that suggests that mere
institution of a universal heir in the will would
give the heir so instituted a share in the
inheritance but there is a definite distinct
intention of the testator in the case at bar,
explicitly expressed in his will. This is what
matters and should be in violable.
(F) As an instituted heir, petitioner has the
legal interest and standing to file the petition
in Sp. Proc. No. 591 ACEB for probate of the
will of Nemesio Acain and
(G) Article 854 of the New Civil Code is a bill
of attainder. It is therefore unconstitutional
and ineffectual.
The pivotal issue in this case is whether or not private
respondents have been pretirited.
Article 854 of the Civil Code provides:
Art. 854. The preterition or omission of one,
some, or all of the compulsory heirs in the
direct line, whether living at the time of the
 execution of the will or born after the death of
the testator, shall annul the institution of heir;
but the devisees and legacies shall be valid
insofar as they are not; inofficious.
If the omitted compulsory heirs should die
before the testator, the institution shall he
effectual, without prejudice to the right of
representation.
Preterition consists in the omission in the testator's will of the
forced heirs or anyone of them either because they are not
mentioned therein, or, though mentioned, they are neither
instituted as heirs nor are expressly disinherited (Nuguid v.
Nuguid, 17 SCRA 450 [1966]; Maninang v. Court of Appeals,
114 SCRA 478 [1982]). Insofar as the widow is concerned,
Article 854 of the Civil Code may not apply as she does not
ascend or descend from the testator, although she is a
compulsory heir. Stated otherwise, even if the surviving spouse
is a compulsory heir, there is no preterition even if she is
omitted from the inheritance, for she is not in the direct line. (Art.
854, Civil code) however, the same thing cannot be said of the
other respondent Virginia A. Fernandez, whose legal adoption
by the testator has not been questioned by petitioner
(.Memorandum for the Petitioner, pp. 8-9). Under Article 39 of
P.D. No. 603, known as the Child and Youth Welfare Code,
adoption gives to the adopted person the same rights and duties
as if he were a legitimate child of the adopter and makes the
adopted person a legal heir of the adopter. It cannot be denied
that she has totally omitted and preterited in the will of the
testator and that both adopted child and the widow were
deprived of at least their legitime. Neither can it be denied that
they were not expressly disinherited. Hence, this is a clear case
of preterition of the legally adopted child.
Pretention annuls the institution of an heir and annulment
throws open to intestate succession the entire inheritance
including "la porcion libre (que) no hubiese dispuesto en virtual
de legado mejora o donacion" Maniesa as cited in Nuguid v.
Nuguid, supra; Maninang v. Court of Appeals, 114 SCRA
[1982]). The only provisions which do not result in intestacy are
the legacies and devises made in the will for they should stand
valid and respected, except insofar as the legitimes are
concerned.
The universal institution of petitioner together with his brothers
and sisters to the entire inheritance of the testator results in
totally abrogating the will because the nullification of such
institution of universal heirs-without any other testamentary
disposition in the will-amounts to a declaration that nothing at all
was written. Carefully worded and in clear terms, Article 854 of
the Civil Code offers no leeway for inferential interpretation
(Nuguid v. Nuguid), supra. No legacies nor devises having been
provided in the will the whole property of the deceased has
been left by universal title to petitioner and his brothers and
sisters. The effect of annulling the "Institution of heirs will be,
necessarily, the opening of a total intestacy (Neri v. Akutin, 74
Phil. 185 [1943]) except that proper legacies and devises must,
as already stated above, be respected.
We now deal with another matter. In order that a person may be
allowed to intervene in a probate proceeding he must have an
interest iii the estate, or in the will, or in the property to be
affected by it either as executor or as a claimant of the estate
and an interested party is one who would be benefited by the
estate such as an heir or one who has a claim against the
estate like a creditor (Sumilang v. Ramagosa, 21 SCRA
1369/1967). Petitioner is not the appointed executor, neither a
devisee or a legatee there being no mention in the testamentary
disposition of any gift of an individual item of personal or real
property he is called upon to receive (Article 782, Civil Code). At
the outset, he appears to have an interest in the will as an heir,
defined under Article 782 of the Civil Code as a person called to
the succession either by the provision of a will or by operation of
law. However, intestacy having resulted from the preterition of
respondent adopted child and the universal institution of heirs,
petitioner is in effect not an heir of the testator. He has no legal
standing to petition for the probate of the will left by the
deceased and Special Proceedings No. 591 A-CEB must be
dismissed.
As a general rule certiorari cannot be a substitute for appeal,
except when the questioned order is an oppressive exercise of j
judicial authority (People v. Villanueva, 110 SCRA 465 [1981];
Vda. de Caldito v. Segundo, 117 SCRA 573 [1982]; Co Chuan
Seng v. Court of Appeals, 128 SCRA 308 [1984]; and Bautista
v. Sarmiento, 138 SCRA 587 [1985]). It is axiomatic that the
remedies of certiorari and prohibition are not available where
the petitioner has the remedy of appeal or some other plain,
speedy and adequate remedy in the course of law (DD
Comendador Construction Corporation v. Sayo (118 SCRA 590
[1982]). They are, however, proper remedies to correct a grave
abuse of discretion of the trial court in not dismissing a case
where the dismissal is founded on valid grounds (Vda. de
Bacang v. Court of Appeals, 125 SCRA 137 [1983]).
Special Proceedings No. 591 ACEB is for the probate of a will.
As stated by respondent Court, the general rule is that the
probate court's authority is limited only to the extrinsic validity of
the will, the due execution thereof, the testator's testamentary
capacity and the compliance with the requisites or solemnities
prescribed by law. The intrinsic validity of the will normally
comes only after the Court has declared that the will has been
duly authenticated. 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 (Nuguid v. Nuguid, 17 SCRA 449 [1966];
Sumilang v. Ramagosa, supra; Maninang v. Court of Appeals,
114 SCRA 478 [1982]; Cayetano v. Leonides, 129 SCRA 522
[1984]; and Nepomuceno v. Court of Appeals, 139 SCRA 206
[1985]).
The rule, however, is not inflexible and absolute. Under
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 (Nepomuceno v. Court of Appeals, supra).
In Nuguid v. Nuguid the oppositors to the probate moved to
dismiss on the ground of absolute preteriton The probate court
acting on the motion held that the will in question was a
complete nullity and dismissed the petition without costs. On
appeal the Supreme Court upheld the decision of the probate
court, induced by practical considerations. The Court said:
We pause to reflect. If the case were to be
remanded for probate of the will, nothing will
be gained. On the contrary, this litigation will
be protracted. And for aught that appears in
the record, in the event of probate or if the
court rejects the will, probability exists that the
case will come up once again before us on
the same issue of the intrinsic validity or
nullity of the will. Result: waste of time, effort,
expense, plus added anxiety. These are the
practical considerations that induce us to a
belief that we might as well meet head-on the
issue of the validity of the provisions of the will
in question. After all there exists a justiciable
controversy crying for solution.
In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to
dismiss the petition by the surviving spouse was grounded on
petitioner's lack of legal capacity to institute the proceedings
which was fully substantiated by the evidence during the
hearing held in connection with said motion. The Court upheld
the probate court's order of dismissal.
In Cayetano v. Leonides, supra one of the issues raised in the
motion to dismiss the petition deals with the validity of the
provisions of the will. Respondent Judge allowed the probate of
the will. The Court held that as on its face the will appeared to
have preterited the petitioner the respondent judge should have
denied its probate outright. Where circumstances demand that
intrinsic validity of testamentary provisions be passed upon
even before the extrinsic validity of the will is resolved, the
probate court should meet the issue. (Nepomuceno v. Court of
Appeals, supra; Nuguid v. Nuguid, supra).
In the instant case private respondents filed a motion to dismiss
the petition in Sp. Proceedings No. 591 ACEB of the Regional
Trial Court of Cebu on the following grounds: (1) petitioner has
no legal capacity to institute the proceedings; (2) he is merely a
universal heir; and (3) the widow and the adopted daughter
have been preterited (Rollo, p. 158). It was denied by the trial
court in an order dated January 21, 1985 for the reason that "the
grounds for the motion to dismiss are matters properly to be
resolved after a hearing on the issues in the course of the trial
on the merits of the case (Rollo, p. 32). A subsequent motion for
reconsideration was denied by the trial court on February 15,
1985 (Rollo, p. 109).
For private respondents to have tolerated the probate of the will
and allowed the case to progress when on its face the will
appears to be intrinsically void as petitioner and his brothers
and sisters were instituted as universal heirs coupled with the
obvious fact that one of the private respondents had been
preterited would have been an exercise in futility. It would have
meant a waste of time, effort, expense, plus added futility. The
trial court could have denied its probate outright or could have
passed upon the intrinsic validity of the testamentary provisions
before the extrinsic validity of the will was resolved (Cayetano v.
Leonides, supra; Nuquid v. Nuguid, supra. The remedies of
certiorari and prohibition were properly availed of by private
respondents.
Thus, this Court ruled that where the grounds for dismissal are
indubitable, the defendants had the right to resort to the more
speedy, and adequate remedies of certiorari and prohibition to
correct a grave abuse of discretion, amounting to lack of
jurisdiction, committed by the trial court in not dismissing the
case, (Vda. de Bacang v. Court of Appeals, supra) and even
assuming the existence of the remedy of appeal, the Court
harkens to the rule that in the broader interests of justice, a
petition for certiorari may be entertained, particularly where
appeal would not afford speedy and adequate relief. (Maninang
Court of Appeals, supra).
PREMISES CONSIDERED, the petition is hereby DENIED for
lack of merit and the questioned decision of respondent Court of
Appeals promulgated on August 30, 1985 and its Resolution
dated October 23, 1985 are hereby AFFIRMED.
SO ORDERED.
Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz,
Feliciano, Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ.,
concur.
Separate Opinions
MELENCIO-HERRERA, J., concurring:
I concur in the result on the basic proposition that preterition in
this case was by mistake or inadvertence.
To my mind, an important distinction has to be made as to
whether the omission of a forced heir in the will of a testator is
by mistake or inadvertence, or voluntary or intentional. If by
mistake or inadvertence, there is true preterirton and total
intestacy results. The reason for this is the "inability to
determine how the testator would have distributed his estate if
none of the heirs had been omitted or forgotten (An Outline of
Civil Law, J.B.L. Reyes and R.C. Puno, Vol. III, p. 54).
The requisites of preterition are:
1. The heir omitted is a forced heir (in the
direct line);
2. The ommission is by mistake or thru an
oversight.
3. The omission is complete so that the forced
heir received nothing in the will. (111 Padilla,
Civil Code Annotated, 1973 Edition, pp. 224-
225) (Parenthetical addendum supplied).
On the other hand, if the omission is intentional, the effect would
be a defective disinheritance covered by Article 918 of the Civil
Code in which case the institution of heir is not wholly void but
only insofar as it prejudices the legitime of the person
disinherited. Stated otherwise. the nullity is partial unlike in true
preterition where the nullity is total.
Pretention is presumed to be only an
involuntary omission; that is, that if the
testator had known of the existence of the
compulsory heir at the time of the execution of
the will, he would have instituted such heir.
On the other hand, if the testator attempts to
disinherit a compulsory heir, the presumption
of the law is that he wants such heir to receive
as little as possible from his estate. (III
Tolentino, Civil Code, 1973 Edition, pp. 174-
175).
In the case at bar, there seems to have been mistake or in
advertence in the omission of the adopted daughter, hence, my
concurrence in the result that total intestacy ensued.
Separate Opinions
MELENCIO-HERRERA, J., concurring:
I concur in the result on the basic proposition that preterition in
this case was by mistake or inadvertence.
To my mind, an important distinction has to be made as to
whether the omission of a forced heir in the will of a testator is
by mistake or inadvertence, or voluntary or intentional. If by
mistake or inadvertence, there is true preterirton and total
intestacy results. The reason for this is the "inability to
determine how the testator would have distributed his estate if
none of the heirs had been omitted or forgotten (An Outline of
Civil Law, J.B.L. Reyes and R.C. Puno, Vol. III, p. 54).
The requisites of preterition are:
1. The heir omitted is a forced heir (in the
direct line);
2. The ommission is by mistake or thru an
oversight.
3. The omission is complete so that the forced
heir received nothing in the will. (111 Padilla,
Civil Code Annotated, 1973 Edition, pp. 224-
225) (Parenthetical addendum supplied).
On the other hand, if the omission is intentional, the effect would
be a defective disinheritance covered by Article 918 of the Civil
Code in which case the institution of heir is not wholly void but
only insofar as it prejudices the legitime of the person
disinherited. Stated otherwise. the nullity is partial unlike in true
preterition where the nullity is total.
Pretention is presumed to be only an
involuntary omission; that is, that if the
testator had known of the existence of the
compulsory heir at the time of the execution of
the will, he would have instituted such heir.
On the other hand, if the testator attempts to
disinherit a compulsory heir, the presumption
of the law is that he wants such heir to receive
as little as possible from his estate. (III
Tolentino, Civil Code, 1973 Edition, pp. 174-
175).
In the case at bar, there seems to have been mistake or in
advertence in the omission of the adopted daughter, hence, my
concurrence in the result that total intestacy ensued.