TESTAMENTARY SUCCESSION

II. WILLS
A. Definition. Art 783

Art. 783. A will is an act whereby a person is permitted, with the formalities
prescribed by law, to control to a certain degree the disposition of this
estate, to take effect after his death. (667a)

Better definition:
A will is a personal, solemn, revocable, and free act by which a capacitated
person disposes of his property and rights and declares or complies with the
duties to take effect after his death.

T: A will is a specie of conveyance whereby a person is permitted, with the

formalities prescribed by law to control to a certain degree disposition of his
property to take effect after his death. However, when there is no disposition of
property, it is submitted that, although the instrument may be considered as a
will, it does not have to be probated. All other relevant legal matters stated in the
will may take effect even without probating such as the acknowledgement of a
natural child.

A will is not necessarily an act of liberality or generosity. The inheritance may be

so burdened with legacies that all benefit to the heir is nullified.

B. Characteristics Art 783, 839(3) & (4), 828, 796-798, 777,

818, 784-787

1. purely
personal act;
2. free act
w/o fraud, violence, etc.
3. disposi
tion of property
4. essenti
ally revocable
5. formall
y executed
6. testato
r must have testamentary capacity
7. Unilate
ral act and;
8. Mortis
causa

Balane:
 9. individual (Art. 818)
10. executed with animus testandi (Art. 783)
11. Statutory (Art. 783)

Art. 783. A will is an act whereby a person is permitted, with the formalities
prescribed by law, to control to a certain degree the disposition of this
estate, to take effect after his death. (667a)

B: The word “Act” is too broad and should have been limited to a more specific
term such as instrument or document in view of Art. 804 that every will must be
in writing.

The requirement of form prescribed respectively for attested and holographic

wills.

The testator’s power of disposition is limited by the rules on legitimes.

Will making is purely statutory being defined as “permitted”.

Art. 839. The will shall be disallowed in any of the following cases:
(1) If the formalities required by law have not been complied with;
(2) If the testator was insane, or otherwise mentally incapable of
making a will, at the time of its execution;
(3) If it was executed through force or under duress, or the influence
of fear, or threats;
(4) If it was procured by undue and improper pressure and influence,
on the part of the beneficiary or of some other person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that the
instrument he signed should be his will at the time of affixing his
signature thereto. (n)

B: This is an exclusive enumeration for the causes of disallowance of a will. These

are matters involved in the formal validity. A probate decree once final , forecloses
any subsequent challenge on any of the matter enumerated in this article.
If any of these grounds is proved the will is void. A will is either valid or void. If
none of the defects are present the will is valid; if any defect is present the will is
void. The issue on formal validity is what the probate proceedings will determine.
There is no such thing as a voidable will.

Art. 828. A will may be revoked by the testator at any time before his death.
Any waiver or restriction of this right is void. (737a)
T: During the life of the testator the will is said to be ambulatory and may be
altered, revoked, or superseded at any time. Its is of no possible effect as a will
while the maker lives.

A will may be revoked at pleasure. Revocation is an act of the mind, terminating

the potential capacity of the will to operate at the death of the testator,
manifested by some outward and visible act or sign, symbolic thereof.

Revocation vs. Nullity

1. act of testator 1. proceeds from law
2. presupposes a valid act 2. inherent from the will
3. inter vivos 3. invoked After death
4. testator cannot renounce 4. can be disregarded by heirs

B: This characteristic is consistent with the principle laid down in Art. 777,
successional rights vest only upon death.

Art. 796. All persons who are not expressly prohibited by law may make a
will. (662)

T: The law presumes capacity to make a will, thus, one must be expressly be
prohibited by law to be disqualified.

Only natural persons may make a will. Juridical persons are not granted T.C.

Even spendthrifths or prodigal under guardianship, can make a will. A peson

under civil interdiction can make a will, he is only disqualified from dispositions
of property inter vivos, but not by act mortis causa.

Art. 797. Persons of either sex under eighteen years of age cannot make a
will. (n)

The manner of computation of age, sustains the view that the required age is
reached at the commencement of the day preceeding the anniversary of the
birthday; that is, it is sufficient that the last day of the eighteenth year shall have
commenced. The law does not recognize fractions of a day and this construction
is more in accord with the liberal policy of the law to presume capacity to make
will.

Art. 798. In order to make a will it is essential that the testator be of sound
mind at the time of its execution. (n)

T: Sound Mind is meant that the testator is able to execute his will with an
understanding of the nature of the act, such as the recollection of the property
he means to dispose of, of the persons who are or who moght reasonably be the
objects of his bounty and the manner in which it is to be distributed among
them. It is sufficient if he understands what he is about, even if he has less
mental capacity than would be required to make a contract.

B: the legal importance and implication of mental capacity is that the law is
interested in the legal consequences of the testator’s mental capacity or
incapacity not in the medical aspects of mental disease. Concievably, the testator
could be mentally aberrant medically but testamentarily capable or, vice versa,
mentally competent medically but testamentariy incompetent.

Art. 777. The rights to the succession are transmitted from the moment of
the death of the decedent. (657a)

B: the vesting of the successional right occurs immediately upon the decedent’s
death, without a moments interruption.

Art. 818. Two or more persons cannot make a will jointly, or in the same
instrument, either for their reciprocal benefit or for the benefit of a third
person. (669)

T: A joint will is one where the same instrument is made the will of two or more
persons and is jointly signed by them. Such will may be probate upon the death
of one and subsequently probated again upon the death of the other testator.
Usually made to dispose joint properties.

Mutual will, OTOH, may be defined as the separate wills of two persons, which
are reciprocal in their provisions. A will that is both joint and mutual is one
executed jointly by two or more persons and which shows on its face that the
devises are made one in consideration of the other.

Ratio for prohibition:

1. purely personal and unilateral characteristic of wills are defeated
2. contrary to the revocable character of wills, if one revokes the will no
document is left for the other to revoke specially in cases were the
revocation is done by destroying or tearing the will.
3. may expose a testator to undue influence
4. may tempt one to kill the other testator
5. against public policy
6. Dimunition of Testamentary secrecy

What is actually prohibited, therefore, is the execution of a will in a SINGLE

DOCUMENT and by ONE ACT.

B: if there are separate documents, each serving one independent will, even if
they are written on the same sheet or even back to back, they are not joint wills.
Art. 784. The making of a will is a strictly personal act; it cannot be left in
whole or in part of the discretion of a third person, or accomplished through
the instrumentality of an agent or attorney. (670a)

T: The testator cannot substitute the mind or will of another for his own. But the
mere mechanical act of drafting the will may be done by a third person, inasmuch
as such act does not constitute a delegation of the will or disposition.

Art. 785. The duration or efficacy of the designation of heirs, devisees or

legatees, or the determination of the portions which they are to take, when
referred to by name, cannot be left to the discretion of a third person.

T: The matters mentioned in this article are testamentary in nature; they

constitute expressions of the will or disposition of the testator. Hence, pursuant
to Art. 784, it cannot be delegated.

B: The ff. constitute the essence of will making or the exercise of the disposing
power, and thus, non-delegable:
1. the designation of heirs, devisees, legatees;
2. the duration or efficacy of such designation including such things as
conditions, terms, substitutions
3. the determination of the portions they are to receive

Art. 786. The testator may entrust to a third person the distribution of
specific property or sums of money that he may leave in general to specified
classes or causes, and also the designation of the persons, institutions or
establishments to which such property or sums are to be given or applied.
(671a)

T: the third person here does not make any disposition, but simply carries out
details in the execution of the testamentary disposition made by the testator
himself in the will.

B: for this article to take effect the testator must determine the ff:
1. the property or amount of money given and;
2. the class or cause to be benefited
and the ff. may be delegated:
1. designation of persons, institutions, or establishments within the class
or cause;
2. the manner of distribution.

Art. 787. The testator may not make a testamentary disposition in such
manner that another person has to determine whether or not it is to be
operative. (n)

C. Interpretation of Wills Arts 788, 789, 790-794, 930

Art. 788. If a testamentary disposition admits of different interpretations,
in case of doubt, that interpretation by which the disposition is to be
operative shall be preferred. (n)

T: The presumption is that the testator intended a lawful rather than an unlawful
thing, and courts will not seek an interpretation that will nullify his will or any
part thereof. That construction must be followed which will sustain and uphold
the will in all its parts, if it can be done consistently with the established rules
of law. If the will is susceptible of two interpretations, the doubt must be resolved
in favor of the construction which will give effect to the will, rather than the one
which will defeat it.

Art. 789. When there is an imperfect description, or when no person or

property exactly answers the description, mistakes and omissions must be
corrected, if the error appears from the context of the will or from extrinsic
evidence, excluding the oral declarations of the testator as to his intention;
and when an uncertainty arises upon the face of the will, as to the
application of any of its provisions, the testator's intention is to be
ascertained from the words of the will, taking into consideration the
circumstances under which it was made, excluding such oral declarations.

T: The first part of this article pertains to patent or extrinsic ambiguity which
appears upon the face of the instrument such as when the testator gives a devise
or legacy to “SOME of the six children of his cousin Juan”

The second part pertains to latent or intrinsic ambiguity which cannot be seen
from a mere perusal or reading of the will but appears only upon consideration
of extrinsic circumstances, such as giving legacy to “my cousin Pedro”, when in
fact he has two cousins named Pedro. Thus. It occurs when:

1. two or more persons or things answer the name or description;

2. misdescription of the beneficiary or the gift

Extrinsic evidence is admissible to show the situation of the testator and all the
relevant facts and circumstances surrounding him at the time of making the will,
for the purpose of explaining or resolving patent ambiguity.

B: method of resolving ambiguity, whether latent or patent is any evidence

admissible and relevant excluding the oral declarations of testator as to his
intention.

Ratio for the exclusion: B: can a dead man refute a tale?

T: the testator whose lips have been sealed by death can no longer deny or affirm
the truth of what witnesses may say he declared, would create confusion and
give rise to false claims.

Art. 790. The words of a will are to be taken in their ordinary and
grammatical sense, unless a clear intention to use them in another sense
can be gathered, and that other can be ascertained.

Technical words in a will are to be taken in their technical sense, unless

the context clearly indicates a contrary intention, or unless it satisfactorily
appears that he was unacquainted with such technical sense. (675a)

Intent of the testator is the supreme law in succession. All rules of construction
are designed to ascertain and give effect to the intention unless the latter is
contrary to law, morals, and public policy.

The words and provisions in the will must be plainly construed in order to avoid
violations of his intentions and real purpose.

Wills drafted by skilled persons or lawyers are to be construed with strictness

giving account to the word’s technical meaning, while words stated by persons
not learned in the law are interpreted liberally and in their ordinary acceptation.
Holographic wills usually made by persons not learned in the law should be
construed liberally in their ordinary acceptation foregoing the technical meaning
in pursuance of the policy of the law of preference on testacy than intestacy.

Art. 791. The words of a will are to receive an interpretation which will give
to every expression some effect, rather than one which will render any of
the expressions inoperative; and of two modes of interpreting a will, that is
to be preferred which will prevent intestacy. (n)

Its to be presumed that every word or clause was intended by the testator to have
some meaning; and no word or clause should be rejected if it is at all possible to
give it reasonable effect. Where two constructions are possible, the one
disregarding a word or clause of the will, and the other giving effect to the will as
a whole, th latter interpretation must be followed.

Art. 792. The invalidity of one of several dispositions contained in a will

does not result in the invalidity of the other dispositions, unless it is to be
presumed that the testator would not have made such other dispositions if
the first invalid disposition had not been made. (n)

B: The article makes applicable to wills the severability or separability principle

in statutory construction frequently provided in a separability clause.
Art. 793. Property acquired after the making of a will shall only pass
thereby, as if the testator had possessed it at the time of making the will,
should it expressly appear by the will that such was his intention. (n)

T: This article is inconsistent with the principle of inheritance laid down under
the code. The inheritance includes all the property, rights, and obligations not
extinguished by death. To follow this article would mean that only the property
at the time of making the will shall be transmitted to the heir unless there is an
express declaration under the will to include properties acquired before death of
testator but after making the will. This contravenes Art. 777 of the code.

Hence, it must be construed as referring only to devises and legacies and not to
inheritance. After all this article is under the chapter of testamentary
dispositions. The problem now arises with its irreconcilable conflict with Art.
930.

Art. 794. Every devise or legacy shall cover all the interest which the
testator could device or bequeath in the property disposed of, unless it
clearly appears from the will that he intended to convey a less interest. (n)

T: When the Testator does not state the extent of the interest that he gives to the
legatee or devisee in the property transmitted, it is understood that his whole
interest passes, no more no less. But the testator, under the present article, may
manifest his intention to convey a less interest; and under article 929, he may
expressly convey a larger interest. In such cases, the intention of the testator will
be followed.

Art. 930. The legacy or devise of a thing belonging to another person is

void, if the testator erroneously believed that the thing pertained to him.
But if the thing bequeathed, though not belonging to the testator when he
made the will, afterwards becomes his, by whatever title, the disposition
shall take effect. (862a)

The presumption under this article is that had the testator known the fact that
another owns the property, he would not have made the legacy. The ignorance
of the testator is presumed by law.

Its must be noted that if the subsequent change of ownership transferred the
thing to the very person to whom it was being given as a devise or legacy, and by
lucrative title, or to another third person, the legacy is void.

Solla v. Ascuenta, 49 Phil. 333

Dña. Maria Solla died in June, 1883, in the municipality of Cabugao, Ilocos Sur,
leaving a will executed and recorded in accordance with the laws then in force,
but which had not been probated in accordance with the Code of Civil Procedure.
There were named in said will, as legatees Sergio Solla, Cayetano Solla, Josefa
Solla, Jacinto Serna, Rosenda Lagmay, Silvestra Sajor and Matias Sevedea, and
Leandro Serrano, as universal heir, with their shares given them by the will
above-mentioned.

Said legatees or their descendants or heirs did not judicially claim their legacies
during the life-time of Leandro Serrano, of which he had taken possession,
neither was any testamentary proceeding instituted for the settlement of the
estate left by Maria Solla and that Leandro Serrano did not deliver the legacies
in question, which he possessed in his name until his death, having declared the
property for taxation as his own and collected the income therefrom for himself.

As may also be seen Leandro Serrano named his son Simeon Serrano, as executor
of his will and that he directed him to put all of his property in order and to
separate that which came from his deceased grandmother Maria Solla, which he
gives to his said son Simeon Serrano and orders that same be disposed of
exclusively in conformity with the wishes of his said grandmother, not forgetting
the souls of all of his grandmother's relatives and of his own for whose repose nine
masses were to be said annually during nine days, with a solemn mass on the
first and last days.

In order to determine the testator's intention, the court should place itself as
near as possible in his position, and hence, where the language of the will is
ambiguous or doubtful, should take into consideration the situation of the
testator and the facts and circumstances surrounding him at the time the will
was executed. (40 Cyc., 1392.) Where the testator's intention is manifest from
the context of the will and surrounding circumstances, but is obscured by inapt
and inaccurate modes of expression, the language will be subordinated to the
intention, and in order to give effect to such intention, as far as possible, the
court may depart from the strict wording and read a word or phrase in a sense
different from that which is ordinarily attributed to it, and for such purpose may
mould or change the language of the will, such as restricting its application or
supplying omitted words or phrases. (40 Cyc., 1399.)

In the present case, it clearly appearing that it was Maria Solla's intention, in
ordering her universal heir Leandro Serrano in her will at the hour of his death,
to insist upon the compliance of her orders by his heirs, that the latter should
comply with her pious orders and that she did not mean her orders concerning
her legacies, the compliance of which she had entrusted to Leandro Serrano, we
are authorized to restrict the application of the words "all that I have here
ordered" used by the said Maria Solla and the words "all her orders" used by
Leandro Serrano in their respective wills limiting them to the pious orders and
substituting the phrase "in regard to the annual masses" after the words used
by both testators, respectively.
The trial court, therefore, committed an error in interpreting the order of Leandro
Serrano mentioned in his will as applicable to the provisions of Maria Solla's will
relative to the legacies and not to the pious bequests exclusively.

D. Law Governing Form

Art. 795. The validity of a will as to its form depends upon the observance
of the law in force at the time it is made. (n)

The general rule is that given in the present article, that the validity of the
execution of a will is controlled by the statute in force at the time of execution;
and a statute enacted subsequent to the execution and prior to the death of the
testator, changing the rules respecting the form of the instrument, the capacity
of the testator, and the like, has no retrospective effect.

However, the intrinsic validity of the will, although executed in the Philippines,
is governed by the laws of the state or country of which the testator was a citizen
or subject at the time of his death. The place of execution has no effect whatever
upon the validity of the provisions of the will.

The law may be changed after the will has been made. The provisions may be
valid at the time it was made but may be contrary to the law at the time of the
death of the testator. In such case, the law at the time of the death of the testator
will apply. It is the law at the time when the succession opens which must
determine the intrinsic validity of the provisions of the will, because it is at this
time that the rights are transmitted to the heirs, devisees, or legatees.

Art. 17. The forms and solemnities of contracts, wills, and other public
instruments shall be governed by the laws of the country in which they are
executed.

When the acts referred to are executed before the diplomatic or consular
officials of the Republic of the Philippines in a foreign country, the
solemnities established by Philippine laws shall be observed in their
execution.

Prohibitive laws concerning persons, their acts or property, and those

which have, for their object, public order, public policy and good customs
shall not be rendered ineffective by laws or judgments promulgated, or by
determinations or conventions agreed upon in a foreign country. (11a)

Art. 18. In matters which are governed by the Code of Commerce and
special laws, their deficiency shall be supplied by the provisions of this
Code.
Matters connected with the performance of contracts are regulated by the law
prevailing at the place of performance. Remedies, such as the bringing of suit,
admissibility of evidence, and the statute of limitations, depend upon the law of
the place where the action is brought.

In terms of the validity and effect of obligations, the following rules shall be
followed. First, the law designated by the parties shall be applied; if there is no
stipulation on the matter, and the parties of the same nationality, their national
law shall be applied; if this is not the case, the law of the place of perfection of
the obligation shall govern its fulfillment; but if these places are not specified
and they cannot be deduced from the nature and circumstances of the
obligation, then the law of the domicile of the passive subjects shall apply.

Art. 810. A person may execute a holographic will which must be entirely
written, dated, and signed by the hand of the testator himself. It is subject
to no other form, and may be made in or out of the Philippines, and need
not be witnessed. (678, 688a)

Art. 815. When a Filipino is in a foreign country, he is authorized to make

a will in any of the forms established by the law of the country in which he
may be. Such will may be probated in the Philippines. (n)

The article follows the general rule that the law governing the formal validity of
wills is the law of the place where it is executed. Yet a Filipino may make will in
a foreign country in conformity with our laws and not of the place of execution.
Article 816 and 817 shall govern.

Art. 816. The will of an alien who is abroad produces effect in the
Philippines if made with the formalities prescribed by the law of the place
in which he resides, or according to the formalities observed in his country,
or in conformity with those which this Code prescribes. (n)

Art. 817. A will made in the Philippines by a citizen or subject of another

country, which is executed in accordance with the law of the country of
which he is a citizen or subject, and which might be proved and allowed by
the law of his own country, shall have the same effect as if executed
according to the laws of the Philippines. (n)

If an alien executes a will in the Philippines, not in conformity with our law, but
in conformity with the law of his own state or country, the will can be probated
in the Philippines.

Art. 818. Two or more persons cannot make a will jointly, or in the same
instrument, either for their reciprocal benefit or for the benefit of a third
person. (669)
A joint will is one where the same instrument is made the will of two or more
persons and is jointly signed by them. Such will may be probate upon the death
of one and subsequently probated again upon the death of the other testator.
Usually made to dispose joint properties.

Mutual will, OTOH, may be defined as the separate wills of two persons, which
are reciprocal in their provisions. A will that is both joint and mutual is one
executed jointly by two or more persons and which shows on its face that the
devises are made one in consideration of the other.

Ratio for prohibition:

a. purely personal and unilateral characteristic of wills are defeated
b. contrary to the revocable character of wills, if one revokes the will no
document is left for the other to revoke specially in cases were the
revocation is done by destroying or tearing the will.
c. may expose a testator to undue influence
d. may tempt one to kill the other testator
e. against public policy

What is actually prohibited, therefore, is the execution of a will in a SINGLE

DOCUMENT and by ONE ACT.

Art. 819. Wills, prohibited by the preceding article, executed by Filipinos

in a foreign country shall not be valid in the Philippines, even though
authorized by the laws of the country where they may have been executed.
(733a)

Fleumer vs. Hix

It is the theory of the petitioner that the alleged will was executed in Elkins, West
Virginia, on November 3, 1925, by Hix who had his residence in that jurisdiction,
and that the laws of West Virginia govern. To this end, there was submitted a
copy of section 3868 of Acts 1882, c. 84 as found in West Virginia Code,
Annotated, by Hogg, Charles E., vol. 2, 1914, p. 1690, and as certified to by the
Director of the National Library. But this was far from a compliance with the law.
The laws of a foreign jurisdiction do not prove themselves in our courts. The
courts of the Philippine Islands are not authorized to take judicial notice of the
laws of the various States of the American Union. Such laws must be proved as
facts. (In re Estate of Johnson [1918], 39 Phil., 156.) Here the requirements of
the law were not met. There was no showing that the book from which an extract
was taken was printed or published under the authority of the State of West
Virginia, as provided in section 300 of the Code of Civil Procedure. Nor was the
extract from the law attested by the certificate of the officer having charge of the
original, under the seal of the State of West Virginia, as provided in section 301
of the Code of Civil Procedure. No evidence was introduced to show that the
extract from the laws of West Virginia was in force at the time the alleged will
was executed.

While the appeal was pending submission in this court, the attorney for the
appellant presented an unverified petition asking the court to accept as part of
the evidence the documents attached to the petition. One of these documents
discloses that a paper writing purporting to be the last will and testament of
Edward Randolph Hix, deceased, was presented for probate on June 8, 1929, to
the clerk of Randolph County, State of West Virginia, in vacation, and was duly
proven by the oaths of Dana Wamsley and Joseph L. Madden, the subscribing
witnesses thereto, and ordered to be recorded and filed. It was shown by another
document that, in vacation, on June 8, 1929, the clerk of court of Randolph
County, West Virginia, appointed Claude W. Maxwell as administrator, cum
testamento annexo, of the estate of Edward Randolph Hix, deceased. In this
connection, it is to be noted that the application for the probate of the will in the
Philippines was filed on February 20, 1929, while the proceedings in West
Virginia appear to have been initiated on June 8, 1929. These facts are strongly
indicative of an intention to make the Philippines the principal administration
and West Virginia the ancillary administration. However this may be, no attempt
has been made to comply with the provisions of sections 637, 638, and 639 of
the Code of Civil Procedure, for no hearing on the question of the allowance of a
will said to have been proved and allowed in West Virginia has been requested.
There is no showing that the deceased left any property at any place other than
the Philippine Islands and no contention that he left any in West Virginia.

Reference has been made by the parties to a divorce purported to have been
awarded Edward Randolph Hix from Annie Cousins Hix on October 8, 1925, in
the State of West Virginia. The present proceedings do not call for any specific
pronouncements on the validity or invalidity of this alleged divorce.For all of the
foregoing, the judgment appealed from will be affirmed, with the costs of this
instance against the appellant.Villamor, Ostrand, Johns, Romualdez and Villa-
Real, JJ., concur.

Dela Cerna vs. Potot

"It appears that on May 9, 1939, the spouses, Bernabe de la Cerna and Gervasia
Rebaca, executed a joint last will and testament in the local dialect whereby they
willed that 'our two parcels of land acquired during our marriage together with
all improvements thereon shall be given to Manuela Rebaca, our niece, whom we
have nurtured since childhood, because God did not give us any child in our
union, Manuela Rebaca being married to Nicolas Potot', and that 'while each of
the testator is yet living, he or she will continue to enjoy the fruits of the two
lands aforementioned', the said two parcels of land being covered by Tax No.
4676 and Tax No. 6677, both situated in sitio Bucao, barrio Lugo, municipality
of Borbon, province of Cebu. Bernabe de la Cerna died on August 30, 1939, and
the aforesaid will was submitted to probate by said Gervasia and Manuela before
the Court of First Instance of Cebu which, after due publication as required by
law and there being no opposition, heard the evidence.

The appealed decision correctly held that the final decree of probate, entered in
1939 by the Court of First Instance of Cebu (when the testator, Bernabe de la
Cerna, died), has conclusive effect as to his last will and testament, despite the
fact that even then the Civil Code already decreed the invalidity of joint wills,
whether in favor of the joint testators, reciprocally, or in favor of a third party
(Art. 669, old Civil Code). The error thus committed by the probate court was an
error of law, that should have been corrected by appeal, but which did not affect
the jurisdiction of the probate court, nor the conclusive effect of its final decision,
however erroneous. A final judgment rendered on a petition for the probate of a
will is binding upon the whole world (Manalo vs. Paredes, 47 Phil. 938; In re
Estate of Johnson, 39 Phil. 156); and public policy and sound practice demand
that at the risk of occasional errors, judgment of courts should become final at
some definite date fixed by law. Interest rei publicae ut finis sit litium (Dy Cay
vs. Crossfield, 38 Phil. 521, and other cases cited in 2 Moran, Comments on the
Rules of Court 1963 Ed., p. 322).

Petitioners, as heirs and successors of the late Bernabe de la Cerna, are

concluded by the 1939 decree admitting his will to probate. The contention that
being void the will cannot be validated, overlooks that the ultimate decision on
whether an act is valid or void rests with the courts, and here they have spoken
with finality when the will was probated in 1939. On this count, the dismissal of
their action for partition was correct.

But the Court of Appeals should have taken into account also, to avoid future
misunderstanding, that the probate decree in 1939 could only affect the share
of the deceased husband, Bernabe de la Cerna. It could not include the
disposition of the share of the wife, Gervasia Rebaca, who was then still alive,
and over whose interest in the conjugal properties the probate court acquired no
jurisdiction, precisely because her estate could not then be in issue. Be it
remembered that prior to the Civil Code, a will could not be probated during the
testator's lifetime.

It follows that the validity of the joint will, in so far as the estate of the wife was
concerned, must be, on her death, reexamined and adjudicated de novo (from
the beginning), since a joint will is considered a separate will of each testator.
Thus regarded, the holding of the Court of First Instance of Cebu that the joint
will is one prohibited by law was correct as to the participation of the deceased
Gervasia Rebaca in the properties in question, for the reasons extensively
discussed in our decision in Bilbao vs. Bilbao, 87 Phil. 144, that explained the
previous holding in Macrohon vs. Saavedra, 51 Phil., 267. Therefore, the
undivided interest of Gervasia Rebaca should pass upon her death to her heirs
intestate, and not exclusively to the testamentary heir, unless some other valid
will in her favor is shown to exist, or unless she be the only heir intestate of said
Gervasia. It is unnecessary to emphasize that the fact that joint wills should be
in common usage could not make them valid when our Civil Codes consistently
invalidated them, because laws are only repealed by other subsequent laws, and
no usage to the contrary may prevail against their observance.

E. Law Governing Content

1. As to time

Art. 2263. Rights to the inheritance of a person who died, with or without
a will, before the effectivity of this Code, shall be governed by the Civil
Code of 1889, by other previous laws, and by the Rules of Court. The
inheritance of those who, with or without a will, die after the beginning of
the effectivity of this Code, shall be adjudicated and distributed in
accordance with this new body of laws and by the Rules of Court; but the
testamentary provisions shall be carried out insofar as they may be
permitted by this Code. Therefore, legitimes, betterments, legacies and
bequests shall be respected; however, their amount shall be reduced if in
no other manner can every compulsory heir be given his full share
according to this Code. (Rule 12a)

The decisive fact which gives origin to the right of heirs, devisees and legatees is
the death of the decedent. This is the basis of the present article. Thus, the
provisions of the new code relaxing the rigidity of the rules of the old code
regarding proof or recognition of natural children, were held inapplicable to one
claiming recognition and a share in the estate of the alleged natural father who
died before the new code went into effect.

2. As to successional rights

Art. 16. Real property as well as personal property is subject to the law of
the country where it is stipulated.

However, intestate and testamentary successions, both with respect to the

order of succession and to the amount of successional rights and to the
intrinsic validity of testamentary provisions, shall be regulated by the
national law of the person whose succession is under consideration,
whatever may be the nature of the property and regardless of the country
wherein said property may be found. (10a)

The distribution of the estate is governed by the law of the nation of the deceased;
the present article applies in such case. It may involve various questions such
as:
1. order of succession in intestacy
2. intrinsic validity of a will
3. extent of property an heir is entitled
4. capacity to succeed of heirs
 5. questions of preterition, disinheritance, and collation.

In above cases, the national law of the decedent applies and the ratio of which is
stated by Dean Capistrano in this wise:

With regard to succession there is only one will, express in testatmentary and
presumed in intestate succession. The oneness and universality of the
inheritance cannot be divided or broken up merely because of the different
countries where the properties of the estate are situated.

The intrinsic validity of the provisions of the will of a foreigner who dies in the
Philippines is to be determined by the laws of his own state or country, and not
by those of the Philippines. The second paragraph of this article can only invoked
when the deceased eas vested with a descendible interest in property within the
jurisdiction of the Philippines.

When a foreign law is invoked it must be proved. (fluemer vs. Hix)

In re the estate of Amos G. Bellis

Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the
United States." By his first wife, Mary E. Mallen, whom he divorced, he had five
legitimate children: Edward A. Bellis, George Bellis (who pre-deceased him in
infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman; by his
second wife, Violet Kennedy, who survived him, he had three legitimate children:
Edwin G. Bellis, Walter S. Bellis and Dorothy Bellis; and finally, he had three
illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma
Bellis.

On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which

he directed that after all taxes, obligations, and expenses of administration are
paid for, his distributable estate should be divided, in trust, in the following order
and manner: (a) $240,000.00 to his first wife, Mary E. Mallen; (b) P120,000.00
to his three illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis, and
Miriam Palma Bellis, or P40,000.00 each and (c) after the foregoing two items
have been satisfied, the remainder shall go to his seven surviving children by his
first and second wives, namely: Edward A. Bellis, Henry A. Bellis, Alexander
Bellis, and Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis, and Dorothy
E. Bellis, in equal shares.

Subsequently, or on July 8, 1958, Amos G. Bellis died, a resident of San Antonio,

Texas, U.S.A. His will was admitted to probate in the Court of First Instance of
Manila on September 15, 1958.

The People's Bank and Trust Company, as executor of the will, paid all the
bequests therein including the amount of $240,000.00 in the form of shares of
stock to Mary E. Mallen and to the three (3) illegitimate children, Amos Bellis,
Jr., Maria Cristina Bellis and Miriam Palma Bellis, various amounts totalling
P40,000.00 each in satisfaction of their respective legacies, or a total of
P120,000.00, which it released from time to time according as the lower court
approved and allowed the various motions or petitions filed by the latter three
requesting partial advances on account of their respective legacies.

On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their
respective oppositions to the project of partition on the ground that they were
deprived of their legitimes as illegitimate children and, therefore, compulsory
heirs of the deceased.

Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national
law of the decedent, in intestate or testamentary successions, with regard to four
items: (a) the order of succession; (b) the amount of successional rights; (c) the
intrinsic validity of the provisions of the will; and (d) the capacity to succeed.
They provide that —

"Art 16. Real property as well as personal property is subject to the law
of the country where it is situated.

"However", intestate and testamentary successions, both with respect to

the order of succession and to the amount of successional rights and to
the intrinsic validity of testamentary provisions, shall be regulated by
the national law of the person whose succession is under consideration,
whatever may be the nature of the property and regardless of the country
wherein said property may be found."

"Art. 1039. Capacity to succeed is governed by the law of the nation of

the decedent."

Appellants would however counter that Article 17, paragraph three, of the Civil
Code, stating that —

"Prohibitive laws concerning persons, their acts or property, and those

which have for their object public order, public policy and good customs
shall not be rendered ineffective by laws, or judgments promulgated, or by
determinations or conventions agreed upon in a foreign country."

prevails as the exception to Art. 16, par. 2 of the Civil Code aforequoted. This is
not correct. Precisely, Congress deleted the phrase, "notwithstanding the
provisions of this and the next preceding article" when they incorporated Art. 11
of the old Civil Code as Art. 17 of the new Civil Code, while reproducing without
substantial change the second paragraph of Art. 10 of the old Civil Code as Art.
16 in the new. It must have been their purpose to make the second paragraph
of Art. 16 a specific provision in itself which must be applied in testate and
intestate successions. As further indication of this legislative intent, Congress
added a new provision, under Art. 1039, which decrees that capacity to succeed
is to be governed by the national law of the decedent.

It is therefore evident that whatever public policy or good customs may be

involved in our system of legitimes, Congress has not intended to extend the
same to the succession of foreign nationals. For it has specifically chosen to
leave, inter alia, the amount of successional rights, to the decedent's national
Law. Specific provisions must prevail over general ones.
Appellants would also point out that the decedent executed two wills
— one to govern his Texas estate and the other his Philippine estate
— arguing from this that he intended Philippine law to govern his
Philippine estate. Assuming that such was the decedent's intention
in executing a separate Philippine will, it would not alter the law, for
as this Court ruled in Miciano vs. Brimo, 50 Phil. 867, 870, a provision
in a foreigner's will to the effect that his properties shall be
distributed in accordance with Philippine law and not with his
national law, is illegal and void, for his national law cannot be ignored
in regard to those matters that Article 10 — now Article 16 — of the
Civil Code states said national law should govern.

The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of
Texas, U.S.A., and that under the laws of Texas, there are no forced heirs or
legitimes. Accordingly, since the intrinsic validity of the provision of the will and
the amount of successional rights are to be determined under Texas law, the
Philippine law on legitimes cannot be applied to the testacy of Amos G. Bellis.

Cayetano vs. Leonides 129 SCRA 522

On January 31, 1977, Adoracion C. Campos died, leaving her father, petitioner
Hermogenes Campos and her sisters, private respondent Nenita C. Paguia,
Remedios C. Lopez and Marieta C. Medina as the surviving heirs. As Hermogenes
Campos was the only compulsory heir, he executed an Affidavit of Adjudication
under Rule 74, Section I of the Rules of Court whereby he adjudicated unto
himself the ownership of the entire estate of the deceased Adoracion Campos.

Eleven months after, on November 25, 1977, Nenita C. Paguia filed a petition for
the reprobate of a will of the deceased, Adoracion Campos, which was allegedly
executed in the United States and for her appointment as administratrix of the
estate of the deceased testatrix.

In her petition, Nenita alleged that the testatrix was an American citizen at the
time of her death and was a permanent resident of 4633 Ditman Street,
Philadelphia, Pennsylvania, U.S.A.; that the testatrix died in Manila on January
31, 1977 while temporarily residing with her sister at 2167 Leveriza, Malate,
Manila; that during her lifetime, the testatrix made her last will and testament
on July 10, 1975, according to the laws of Pennsylvania, U.S.A., nominating
Wilfredo Barzaga of New Jersey as executor; that after the testatrix' death, her
last will and testament was presented, probated, allowed, and registered with
the Registry of Wills at the County of Philadelphia, U.S.A., that Clement L.
McLaughlin, the administrator who was appointed after Dr. Barzaga had
declined and waived his appointment as executor in favor of the former, is also
a resident of Philadelphia, U.S.A., and that therefore, there is an urgent need for
the appointment of an administratrix to administer and eventually distribute the
properties of the estate located in the Philippines.

Meanwhile, on June 6, 1982, petitioner Hermogenes Campos died and left a will,
which, incidentally has been questioned by the respondent, his children and
forced heirs as, on its face patently null and void, and a fabrication, appointing
Polly Cayetano as the executrix of his last will and testament. Cayetano,
therefore, filed a motion to substitute herself as petitioner in the instant case
which was granted by the court on September 13, 1982.

ISSUE: Whether or not a compulsory heir may be validly excluded by a will

executed by a foreign testator?

HELD: YES
RATIO: Although on its face, the will appeared to have preterited the petitioner
and thus, the respondent judge should have denied its reprobate outright, the
private respondents have sufficiently established that Adoracion was, at the time
of her death, an American citizen and a permanent resident of Philadelphia,
Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and 1039 of the Civil
Code which respectively provide:

Art. 16 par. (2)."However, intestate and testamentary successions, both with

respect to the order of succession and to the amount of successional rights and
to the intrinsic validity of testamentary provisions, shall be regulated by the
national law of the person whose succession is under consideration, whatever
may be the nature of the property and regardless of the country wherein said
property may be found."

Art. 1039."Capacity to succeed is governed by the law of the nation of the

decedent."

the law which governs Adoracion Campo's will is the law of Pennsylvania, U.S.A.,
which is the national law of the decedent. Although the parties admit that the
Pennsylvania law does not provide for legitimes and that all the estate may be
given away by the testatrix to a complete stranger, the petitioner argues that
such law should not apply because it would be contrary to the sound and
established public policy and would run counter to the specific provisions of
Philippine Law.
It is a settled rule that as regards the intrinsic validity of the provisions of the
will, as provided for by Article 16 (2) and 1039 of the Civil Code, the national law
of the decedent must apply. This was squarely applied in the case of Bellis v.
Bellis (20 SCRA 358) wherein we ruled:"It is therefore evident that whatever
public policy or good customs may be involved in our system of legitimes,
Congress has not intended to extend the same to the succession of foreign
nationals. For it has specifically chosen to leave, inter alia, the amount of
successional rights, to the decedent's national law. Specific provisions must
prevail over general ones.

III. TESTAMENTARY CAPACITY AND INTENT

A. Who may make a will? Arts. 796-803

Art. 796. All persons who are not expressly prohibited by law may make a
will. (662)

Art. 797. Persons of either sex under eighteen years of age cannot make a
will. (n)

Art. 798. In order to make a will it is essential that the testator be of sound
mind at the time of its execution. (n)

Art. 799. To be of sound mind, it is not necessary that the testator be in

full possession of all his reasoning faculties, or that his mind be wholly
unbroken, unimpaired, or unshattered by disease, injury or other cause.
It shall be sufficient if the testator was able at the time of making the will
to know the nature of the estate to be disposed of, the proper objects of his
bounty, and the character of the testamentary act. (n)

B: requisite of sanity to execute a will is based on the testator’s ability to know

three things:

1. Nature of the estate to be disposed- the testator should have a

fairly accurate knowledge of what he owns. Accurate should be understood
in the relative sense. The more one owns the less accurate is one’s
knowledge of his estate expected to be. Henry Sy might have a far less
accurate picture of his economic empire than a poverty stricken laborer.
2. Proper objects of his bounty- under ordinary circumstances, the
testator should know his relatives in the proximate degrees. As the degree
of relationship goes further, it is less likely that he knows them.
3. Character of the testamentary act- it is not required, in order for
this requisite to be present, that the testator know the legal nature of a
will with the erudition of a civilest. All that he need know is that the
document he is executing is one that disposes of his property upon death.
T: Neither sickness, old age, deafness, senile debility, blindness, nor poor
memory is by itself sufficient to establish a presumption of lack of testamentary
capacity, actual insanity need not exist in order that a person may be said to
lack testamentary capacity. It is enough that the mental condition be such that
there is want of understanding of the nature and consequences of the disposition
by will.

Art. 800. The law presumes that every person is of sound mind, in the
absence of proof to the contrary.

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

Art. 801. Supervening incapacity does not invalidate an effective will, nor
is the will of an incapable validated by the supervening of capacity. (n)

The capacity of the person who leaves a will is to be determined as of the time of
execution of such will. Any prior or subsequent incapacity will not affect the
validity of the will. It will, however, in cases of prior incapacity within 30 days
from the making of the will merely shift the burden of proof of capacity on the
person maintaining the validity of the will. (Art. 800)

Art. 802. A married woman may make a will without the consent of her
husband, and without the authority of the court. (n)

Art. 803. A married woman may dispose by will of all her separate property
as well as her share of the conjugal partnership or absolute community
property. (n)

B. Supervening incapacity. Art. 801

Art. 801. Supervening incapacity does not invalidate an effective will, nor
is the will of an incapable validated by the supervening of capacity. (n)

The capacity of the person who leaves a will is to be determined as of the time of
execution of such will. Any prior or subsequent incapacity will not affect the
validity of the will. It will, however, in cases of prior incapacity within 30 days
from the making of the will merely shift the burden of proof of capacity on the
person maintaining the validity of the will. (Art. 800)

Baltazar v. Laxa, G.R. No. 174489, April 11, 2012

FACTS: Paciencia was a 78 y/o spinster when she made her last will and
testament in the Pampango dialect on Sept. 13, 1981. The will, executed in the
house of retired Judge Limpin, was read to Paciencia twice. After which,
Paciencia expressed in the presence of the instrumental witnesses that the
document is her last will and testament. She thereafter affixed her signature at
the end of the said document on page 3 and then on the left margin of pages 1,
2 and 4 thereof.

Childless and without any brothers or sisters, Paciencia bequeathed all her
properties to respondent Lorenzo Laxa and his wife Corazon Laza and their
children Luna and Katherine. Lorenzo is Paciencia’s nephew whom she treated
as her own son. Conversely, Lorenzo came to know and treated Paciencia as his
own mother.

Six days after the execution of the Will (Sept. 19, 1981), Paciencia left for USA.
There, she resided with Lorenzo and his family until her death on Jan. 4, 1996.
In the interim, the Will remained in the custody of Judge Limpin.

More than 4 years after the death of Paciencia or on Apr. 27, 2000, Lorenzo filed
a petition with the RTC of Guagua, Pampanga for the probate of the Will of
Paciencia and for the issuance of Letters of Administration in his favor.

On Jun 23, 2000 one of petitioners, Antonio Baltazar filed an opposition to

Lorenzo’s petition. Antonio averred that the properties subject of Paciencia’s Will
belong to Nicomeda Mangalindan, his predecessor-in-interest; hence, Paciencia
had no right to bequeath them to Lorenzo. Also, one of the petitioners, Rosie
Mateo testified that Paciencia is in the state of being “mangulyan” or forgetful
making her unfit for executing a will and that the execution of the will had been
procured by undue and improper pressure and influence.

Petitioners also opposed the issuance of the Letters of Administration in

Lorenzo’s favor arguing that Lorenzo was disqualified to be appointed as such,
he being a citizen and resident of the USA. Petitioners prayed that Letters of
Administration be instead issued in favor of Antonio.

RTC denies the petition for probate of the will and concluded that when Paciencia
signed the will, she was no longer possessed of the sufficient reason or strength
of mind to have the testamentary capacity. On appeal, CA reversed the decision
of the RTC and granted the probate of the will. The petitioner went up to SC for
a petition for review on Certiorari.

ISSUE: Whether the authenticity and due execution of the will was sufficiently
established to warrant its allowance for probate.

HELD: Yes. A careful examination of the face of the Will shows faithful
compliance with the formalities laid down by law. The signatures of the testatrix,
Paciencia, her instrumental witnesses and the notary public, are all present and
evident on the Will. Further, the attestation clause explicitly states the critical
requirement that the testatrix and her instrumental witnesses attested and
subscribed to the Will in the presence of the testator and of one another. In fact,
even the petitioners acceded that the signature of Paciencia in the Will may be
authentic although they question of her state of mind when she signed the same
as well as the voluntary nature of said act.

The burden to prove that Paciencia was of unsound mind at the time of the
execution of the will lies on the shoulders of the petitioners. The SC agree with
the position of the CA that the state of being forgetful does not necessarily make
a person mentally unsound so as to render him unfit to execute a Will.
Forgetfulness is not equivalent to being of unsound mind. Besides, Art. 799 of
the NCC states: “To be of unsound mind, it is not necessary that the testator be
in full possession of all his reasoning faculties, or that his mind be wholly
unbroken, unimpaired, or unshattered by disease, injury or other cause. It shall
be sufficient if the testator was able at the time of making the Will to know the
nature of the estate to be disposed of, the proper objects of his bounty, and the
character of the testamentary act.”

IV. SOLEMNITIES OF WILLS

A. Kinds of Wills. Arts. 804, 810

Art. 804. Every will must be in writing and executed in a language or dialect
known to the testator. (n)

Art. 810. A person may execute a holographic will which must be entirely
written, dated, and signed by the hand of the testator himself. It is subject
to no other form, and may be made in or out of the Philippines, and need
not be witnessed. (678, 688a)

T: the following are the advantages of a holographic will:

1. simple and easy to make for those a) who have no means to employ a lawyer,
b) who are timid and wants to reread their wills before signing, c) those who have
only very little property to dispose
2. It induces foreigners in this jurisdiction to set down their last wishes;
3. guaranties the absolute secrecy of the testamentary disposition because it is
not witnessed.

The disadvantages are:

1. does not gauranty testamentary capacity of testator;
2. no protection against vices of consent which may not be known in case of
death;
3. due to faulty expression, it may not express the true will of the testator;
4. for the same reason, it can be easily concealed.
May a blind testator make a valid holographic will? There is no question as to
notarial wills it being allowed under the law provided the will was read twice to
the testator. As to holographic wills, it is submitted that it may be allowed. The
testator, having written the holographic will by his own hand, knows what it
contains. He may have learned to write before he became blind, or in spite of his
blindness. This view has been sustained in Louisiana, where it has been held
that blindness does not of itself prevent the making of a valid holographic.

A HW may be in any form, but the intent to dispose mortis causa must clearly
appear in the context.

What would be the effect of words written by another and inserted among the
words written by the testator?

1. if insertion was made after execution bu w/o consent, such is deemed not
written;
2. if the insertion was after execution with the consent of testator, the will
remains valid but the insertion void;
3. if insertion was after execution and validated by testator by his signature, the
entire will is void because it is not wholly written by the testator himself;
4. if insertion is contemporaneous to the execution the effect same as no. 3.

As to date, the day, month, and year on which the will was made should be
indicated therein. The day and the month, however, may be indicated by
implication, so long as the designation leaves no room for doubt as to exact date.
The validity of the holographic will is defeated by the fact that part of the date is
printed. Such as that written on a daily planner though the contents are entirely
written by the hand but the testator relied on the date indicated on the planner,
the same is still extrinsically void.

Signatures of witnesses to a HW will not invalidate the will, but will be

disregarded as a mere surplusage.

B. Notarial Wills
1. General requirements. Art. 804

Art. 804. Every will must be in writing and executed in a language or dialect
known to the testator. (n)

Our law does not recognize nuncupative wills, which is one that is not written,
but orally declared by the testator in his last illness, in contemplation of death,
and before a sufficient number of competent witnesses.

The above requirement applies to both holographic and notarial. In notarial wills
it is immaterial who performs the mechanical act writing the will, so long as the
testator signs it or has somebody sign his name in his presence upon his
direction.

As to the language or dialect, when a will is executed in a certain province or

locality, in the dialect currently used in such province or locality, there arises a
presumption that the testator knew the dialect so used, in the absence of
contrary evidence. It is not required that the will express that the language is
known by the testator it is a fact which may be proved by evidence aliunde.

The attestation clause of an ordinary will does not have to be written in a

language or dialect known to the testator. It is not part of the testamentary
disposition. The language used in the attestation clause does not even have to
be known to the witness; it should, however, be translated to them.

Suroza v. Honrado, 110 SCRA 388

Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (Philippine
Scouts), Fort McKinley, married Marcelina Salvador in 1923 (p. 150, Spec. Proc.
No. 7816). They were childless. They reared a boy named Agapito who used the
surname Suroza and who considered them as his parents as shown in his 1945
marriage contract with Nenita de Vera (p. 15, Rollo of CA-G.R. No. 08654, p. 148,
Rollo of Testate Case showing that Agapito was 5 years old when Mauro married
Marcelina in 1923).

Mauro died in 1942. Marcelina, as a veteran's widow, became a pensioner of the

Federal Government. That explains why on her death she had accumulated some
cash in two banks.

Agapito and Nenita begot a child named Lilia who became a medical technologist
and went abroad. Agapito also became a soldier. He was disabled and his wife
Nenita was appointed as his guardian in 1953 when he was declared an
incompetent in Special Proceedings No. 1807 of the Court of First Instance of
Rizal, Pasig Branch I (p. 16, Rollo of CA-G.R. No. 08654-R)

In that connection, it should be noted that a woman named Arsenia de la Cruz

wanted also to be his guardian in another proceeding. Arsenia tried to prove that
Nenita was living separately from Agapito and that she (Nenita) admitted to
Marcelina that she was unfaithful to Agapito (pp. 61-63, Record of testate case)
Judge Bienvenido A. Tan dismissed the second guardianship proceeding and
confirmed Nenita's appointment as guardian of Agapito (p. 16, Rollo of CA case).
Agapito has been staying in a veteran's hospital in San Francisco or Palo Alto,
California (p. 87, Record)

On a date not indicated in the record, the spouses Antonio Sy and Hermogena
Talan begot a child named Marilyn Sy, who, when a few days old, was entrusted
to Arsenia de la Cruz (apparently a girl friend of Agapito) and who was later
delivered to Marcelina Salvador Suroza who brought her up as a supposed
daughter of Agapito and as her granddaughter (pp. 23-26, Rollo of CA-G.R. No.
SP-08654-R). Marilyn used the surname Suroza. She stayed with Marcelina but
was not legally adopted by Agapito. She married Oscar Medrano and is residing
at 7666 J.B. Roxas Street, Makati, apparently a neighbor of Marina Paje, a
resident of 7668 J.B. Roxas Street.

Marcelina supposedly executed a notarial will in Manila on July 23, 1973,

when she was 73 years old. That will, which is in English, was thumb
marked by her. She was illiterate. Her letters in English to the Veterans
Administration were also thumb marked by her (pp. 38-39, CA Rollo). In that
will, Marcelina bequeathed all her estate to her supposed granddaughter
Marilyn.

On April 24, Nenita filed in the testate case an omnibus petition "to set aside
proceedings, admit opposition with counter-petition of administration and
preliminary injunction." Nenita in that motion reiterated her allegation that
Marilyn was a stranger to Marcelina, that the will was not duly executed and
attested, that it was procured by means of undue influence employed by Marina
and Marilyn and that the thumb marks of the testatrix were procured by fraud
or trick.

About ten months later, in a verified complaint dated October 12,1978, filed in
this Court, Nenita charged Judge Honrado with having probated the fraudulent
will of Marcelina. The complainant reiterated her contention that the testatrix
was illiterate as shown by the fact that she affixed her thumb mark to the will
and that she did not know English, the language in which the will was written.
(In the decree of probate Judge Honrado did not make any finding that the will
was written in a language known to the testatrix).

Nenita further alleged that Judge Honrado, in spite of his knowledge that the
testatrix had a son named Agapito (the testatrix's supposed sole compulsory and
legal heir), who was preterited in the will, did not take into account the
consequences of such a preterition.

We hold that disciplinary action should be taken against respondent judge for
his improper disposition of the testate case which might have resulted in a
miscarriage of justice because the decedent's legal heirs and not the instituted
heiress in the void will should have inherited the decedent's estate.

A judge may be criminally liable for knowingly rendering an unjust judgment or

interlocutory order or rendering a manifestly unjust judgment or interlocutory
order by reason of inexcusable negligence or ignorance (Arts. 204 to 206, Revised
Penal Code)
In this case, respondent judge, on perusing the will and noting that it was written
in English and was thumb marked by an obviously illiterate testatrix, could have
readily perceived that the will is void.

In the opening paragraph of the will, it was stated that English was a language
"understood and known" to the testatrix. But in its concluding paragraph, it was
stated that the will was read to the testatrix "and translated into Filipino
language." (p. 16, Record of testate case) That could only mean that the will was
written in a language not known to the illiterate testatrix and, therefore, it is void
because of the mandatory provision of Article 804 of the Civil Code that every
will must be executed in a language or dialect known to the testator. Thus, a will
written in English, which was not known to the Igorot testator, is void and was
disallowed (Acop vs. Piraso, 52 Phil. 660)

The hasty preparation of the will is shown in the attestation clause and notarial
acknowledgment where Marcelina Salvador Suroza is repeatedly referred to as
the "testator" instead of "testatrix."

Had respondent judge been careful and observant, he could have noted not only
the anomaly as to the language of the will but also that there was something
wrong in instituting the supposed granddaughter as sole heiress and giving
nothing at all to her supposed father who was still alive. Furthermore, after the
hearing conducted by respondent deputy clerk of court, respondent judge could
have noticed that the notary was not presented as a witness.

In spite of the absence of an opposition, respondent judge should have personally

conducted the hearing on the probate of the will so that he could have
ascertained whether the will was validly executed. Under the circumstances, we
find his negligence and dereliction of duty to be inexcusable.

2. Specific requirements. Arts. 805, 806

Art. 805. Every will, other than a holographic will, must be subscribed at
the end thereof by the testator himself or by the testator's name written by
some other person in his presence, and by his express direction, and
attested and subscribed by three or more credible witnesses in the presence
of the testator and of one another.

The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and
every page thereof, except the last, on the left margin, and all the pages
shall be numbered correlatively in letters placed on the upper part of each
page.

The attestation shall state the number of pages used upon which the will is
written, and the fact that the testator signed the will and every page
thereof, or caused some other person to write his name, under his express
direction, in the presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the presence of
the testator and of one another.

If the attestation clause is in a language not known to the witnesses, it

shall be interpreted to them. (n)

T: The object of the solemnities surrounding the execution of wills is to close the
door against bad faith and fraud, to avoid substitution of wills and testaments
and to guaranty their truth and authenticity. Therefore the laws on this subject
should be interpreted in such a way as to attain these primordial ends. Both one
must not lose sight of the fact that it is not the object of the law to restrain and
curtail the exercise of the right to make a will.

Signed by Testator
Signing is making a sign, token, or emblem; and what that shall be depends
upon the individual. The material thing is that the testator made the mark to
authenticate the writing as his will and whatever he puts on it for that purpose
will suffice.

Attested and subscribed by witnesses

Attestation is the act of the senses, subscription is the act of the hand; one is
mental, the other is mechanical. To attest a will is to know that it is published a
such, and to certify the facts required to constitute an actual legal publication;
but to subscribe a paper as a will is only to write on the paper the names of the
witnesses, for the sole purpose of identification. To attest as witness to a will is
therefore to observe, perceive, discern, and take notice of what is done in
executing a will. The witness subscribe with his hand, and attest with his eyes
and ears.

Purpose of attesting and subscribing:

1. identification of the instrument;
2. protection of testator fraud and deception and other vices of consent;
3. to ascertain the TC of the testator

The witnesses need not even know the contents of the will because what they
attest to is the due execution and the signing of the testator.

It is presumed that a witness has the qualifications prescribed by law, unless

the contrary is established. His credibility depends upon the appreciation of his
testimony and arises from the belief and appreciation of the court that he is
telling the truth. His competency arise or is required to exist at the time of
execution of the will.

As to order of signing, there are two views:

Strict approach; The general rule has been, that everything required to be done
by the testator in the execution of a will shall precede in point of time the
subscription by the attesting witness, and if the signatures of the latter precede
the signing by the testator there is no proper attestation, and the will is void, for
until the testator has signed, there is no will and nothing to attest.

Liberal approach; where the witnesses and the testator all sign in the presence
of one another, it is not essential that the testator sign first, if the signing and
the attestation be parts of the same transaction; in such case, where the acts
are substantially contemporaneous, it cannot be said that there is any
substantial priority.

The latter view is upheld by most courts. In the absence of proof to the contrary,
it will be presumed that the testator signed first.

Purpose of requiring presence of each other:

1. to prevent another paper being substituted for the will fraudulently;
2. so that each may be a witness of the other and;
3. to render fabrication of testimony more difficult.

When testator is blind; when witness subscribe his will in the same room or
within reasonable close proximity and within his hearing, they subscribe in his
presence. Evidently, the rule is that they should be within the cognizance of his
remaining senses, such that he knows what is being done.

The testator and witnesses must sign on the left margin of every page, the failure
of all of them to sign the left margin is a fatal defect

The purpose of numbering of pages is to afford a means for determinig whether

any sheet or page of the will has been removed. Except only when will was written
on a single page.

An attestation clause is a memorandum of facts attending the execution of the

will and is that part of the instrument wherein the witnesses certify that the
instrument has been executed before them, and the manner of execution.

The attestation clause duly signed is the best evidence as to date of signing

The law does not require the attestation to be contained in a single clause. Thus,
where a will did not contain a separate independent attestation clause, but the
concluding paragraph of the body of the will was written in the tenor of an
attestation, stating the facts required by law to be set forth in an attestation
clause, and the penultimate paragraph of the will stated the number of pages
used, it was held to be sufficient though in the first person and signed by the
testator provided it was signed by the witnesses.
Any failure to state a material fact in the attestation clause will render the will
null and void. Oral evidence will not cure any alleged defect because the statute
of frauds does not apply to wills. The statute relates to contracts and agreement
only this may be cured by the oral ratification of the parties.

Date-
in an ordinary will date is not an essential part. Only HW requires a date. Neither
a statement of the place of execution is required and the absence of both facts
does not invalidate the will.

Art. 806. Every will must be acknowledged before a notary public by the
testator and the witnesses. The notary public shall not be required to retain
a copy of the will, or file another with the Office of the Clerk of Court. (n)

T: This article applies only to ordinary or attested wills. It has no application to

a holographic will which does not have to be witnessed. Since acknowledgement
before a notary public must be made by the testator and the witness, it is obvious
that the law contemplates only ordinary wills.

The signing of the will by the testator and the witnesses, and the
acknowledgement of said will before a notary public need not be done in a single
act unlike the in the old code because his presence is required due to the fact
that he prepares the will. Under the present code, it is enough that the testator
and witnesses acknowledge to him its execution for such acknowledgement is
indispensable for the validity of the will. An interval of time may elapse between
the actual signing of the will and the acknowledgement before the notary public.
It is important also that testamentary capacity must exist also at the time of
acknowledgement, because this is an essential part of the execution of the will.
The purpose of acknowledgement is to minimize fraud and undue pressure and
this purpose can be attained whether acknowledgement takes place at same time
as the signing or at some time thereafter.

The prohibition under this article on the retention of a copy by the notary is
grounded on the desire of the testator to safeguard the secrecy of the contents of
the will during the lifetime of the testator so he will not be the object of
importunities or pressure to change his will on the part of designing persons or
relatives, or it may be that the testator wants to keep the secret of the will during
his lifetime.

B: Special Requirements of attested wills are as follows

1. subscribed by the testator or his agent in his presence and by his
express direction at the end thereof, in the presence of the witnesses
2. attested and subscribed by at least three credible witnesses in the
presence of the testator and of one another;
3. the testator or his agent must sign every page except the last, on the
left margin in the presence of the witnesses;
 4. the witnesses must sign every page except last, on the left margin in
the presence of the testator and of one another;
5. all pages numbered correlatively in letters above page;
6. attestation clause stating:
a. number of pages;
b. testator or his agent under his direction signed the will and every
page thereof, in the presence of the witnesses;
c. the witnesses witnessed and signed every page in the presence of
testator and of one another;
7. acknowledged before a notary public

Garcia v. Lacuesta, 90 Phil. 489

This is an appeal from a decision of the Court of Appeals disallowing the will of
Antero Mercado dated January 3, 1943. The will is written in the Ilocano dialect
and contains the following attestation clause:

"We, the undersigned, by these presents do declare that the foregoing testament
of Antero Mercado was signed by himself and also by us below his name and of
this attestation clause and that of the left margin of the three pages thereof. Page
three the continuation of this attestation clause; this will is written in Ilocano
dialect which is spoken and understood by the testator, and it bears the
corresponding number in letter which compose of three pages and all of them
were signed in the presence of the testator and witnesses, and the witnesses in
the presence of the testator and all and each and every one of us witnesses.

"In testimony, whereof, we sign this testament, this the third day of January,
one thousand nine hundred forty three, (1943) A.D.

(Sgd.) "NUMERIANO EVANGELISTA (Sgd.) ROSENDO CORTES

(Sgd.) BIBIANA ILLEGIBLE"

The will appears to have been signed by Atty. Florentino Javier who wrote the
name of Antero Mercado, followed below by "A ruego del testador" and the name
of Florentino Javier. Antero Mercado is alleged to have written a cross
immediately after his name. The Court of Appeals, reversing the judgment of the
Court of First Instance of Ilocos Norte, ruled that the attestation clause failed (1)
to certify that the will was signed on all the left margins of the three pages and
at the end of the will by Atty. Florentino Javier at the express request of the
testator in the presence of the testator and each and every one of the witnesses;
(2) to certify that after the signing of the name of the testator by Atty. Javier at
the former's request said testator has written a cross at the end of his name and
on the left margin of the three pages of which the will consists and at the end
thereof; (3) to certify that the three witnesses signed the will in all the pages
thereon in the presence of the testator and of each other.
In our opinion, the attestation clause is fatally defective for failing to state that
Antero Mercado caused Atty. Florentino Javier to write the testator's name under
his express direction, as required by section 618 of the Code of Civil Procedure.
The herein petitioner (who is appealing by way of certiorari from the decision of
the Court of Appeals) argues, however, that there is no need for such recital
because the cross written by the testator after his name is a sufficient signature
and the signature of Atty. Florentino Javier is a surplusage. Petitioner's theory
is that the cross is as much a signature as a thumbmark, the latter having been
held sufficient by this Court in the cases of De Gala vs. Gonzales and Ona, 53
Phil., 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil., 848;
Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.

It is not here pretended that the cross appearing on the will is the usual signature
of Antero Mercado or even one of the ways by which he signed his name. After
mature reflection, we are not prepared to liken the mere sign of a cross to a
thumbmark, and the reason is obvious. The cross cannot and does not have the
trustworthiness of a thumbmark.

What has been said makes it unnecessary for us to determine whether there is
a sufficient recital in the attestation clause as to the signing of the will by the
testator in the presence of the witnesses, and by the latter in the presence of the
testator and of each other. Wherefore, the appealed decision is hereby affirmed,
with costs against the petitioner. So ordered.

Balonan v. Abellana, 109 Phil. 358

Appeal from a decision of the Court of First Instance of Zamboanga City

admitting to probate the will of one Anacleta Abellana.

"It appears on record that the last Will and Testament (Exhibit 'A'), which is
sought to be probated, is written in the Spanish language and consists of two (2)
typewritten pages (pages 4 and 5 of the record) double space. The first page is
signed by Juan Bello and under his name appears typewritten 'Por la testadora
Anacleta Abellana, residence Certificate A-1167629, Enero 20, 1951, Ciudad de
Zamboanga', and on the second page appears the signature of the three (3)
instrumental witnesses Blas Sebastian, Faustino Macaso and Rafael Ignacio, at
the bottom of which appears the signature of T. de los Santos and below his
signature is his official designation as the notary public who notarized the said
testament. On the first page on the left margin of the said instrument also appear
the signatures of the instrumental witnesses. On the second page, which is the
last page of the said last Will and Testament, also appears the signature of the
three (3) instrumental witnesses and on that second page on the left margin
appears the signature of Juan Bello under whose name appears handwritten the
following phrase, 'Por la Testadora Anacleta Abellana'. The will is duly
acknowledged before Notary Public, Attorney Timoteo de los Santos." (Italics
supplied.)
The present law, Article 805 of the Civil Code, in part provides as follows:

"Every will, other than a holographic will, must be subscribed at the end thereof
by the testator himself or by the testator's name written by some other person
in his presence, and by his express direction, and attested and subscribed by
three or more credible witnesses in the presence of the testator and of one
another." (Italics supplied.)

Note that the old law as well as the new require that the testator himself sign the
will, or if he cannot do so, the testator's name must be written by some other
person in his presence and by his express direction. Applying this provision this
Court said in the case of Ex Parte Pedro Arcenas, et al., 4 Phil., 700:

"It will be noticed from the above-quoted section 618 of the Code of Civil
Procedure that where the testator does not know how, or is unable, to sign, it
will not be sufficient that one of the attesting witnesses signs the will at the
testator's request, the notary certifying thereto as provided in article 695 of the
Civil Code, which, in this respect, was modified by section 618 above referred to,
but it is necessary that the testator's name be written by the person signing in
his stead in the place where he would have signed if he knew how or was able so
to do, and this in the testator's presence and by his express direction; so that a
will signed in a manner different than that prescribed by law shall not be valid
and will not be allowed to be probated.

The same ruling was laid down in the case of Cuison vs. Concepcion, 5 Phil.,
552. In the case of Barut vs. Cabacungan, 21 Phil., 461, we held that the
important thing is that it clearly appears that the name of the testatrix was
signed at her express direction; it is unimportant whether the person who writes
the name of the testatrix signs his own or not. Cases of the same import are as
follows: (Ex Parte Juan Ondevilla, 13 Phil., 479, Caluya vs. Domingo, 27 Phil.,
330; Garcia vs. Lacuesta, 90 Phil., 489).

In the case at bar the name of the testatrix, Anacleta Abellana, does not appear
written under the will by said Abellana herself, or by Dr. Juan Abello. There is,
therefore, a failure to comply with the express requirement in the law that the
testator must himself sign the will, or that his name be affixed thereto by Some
other person in his presence and by his express direction. It appearing that the
above provision of the law has not been complied with, we are constrained to
declare that the said will of the deceased Anacleta Abellana may not be admitted
to probate.

Nera v. Rimando, 18 Phil. 450

The only question raised by the evidence in this case as to the due execution of
the instrument propounded as a will in the court below, is whether one of the
subscribing witnesses was present in the small room where it was executed at
the time when the testator and the other subscribing witnesses attached their
signatures; or whether at that time he was outside, some eight or ten feet away,
in a large room connecting with the smaller room by a doorway, across which
was hung a curtain which made it impossible for one in the outside room to see
the testator and the other subscribing witnesses in the act of attaching their
signatures to the instrument.

A majority of the members of the court is of opinion that this subscribing witness
was in the small room with the testator and the other subscribing witnesses at
the time when they attached their signatures to the instrument, and this finding,
of course, disposes of the appeal and necessitates the affirmance of the decree
admitting the document to probate as the last will and testament of the deceased.

The trial judge does not appear to have considered the determination of this
question of fact of vital importance in the determination of this case, as he was
of opinion that under the doctrine laid down in the case of Jaboneta vs. Gustilo
(5 Phil. Rep., 541) the alleged fact that one of the subscribing witnesses was in
the outer room when the testator and the other describing witnesses signed the
instrument in the inner room, had it been proven, would not be sufficient in itself
to invalidate the execution of the will. But we are unanimously of opinion that
had this subscribing witness been proven to have been in the outer room at the
time when the testator and the other subscribing witnesses attached their
signatures to the instrument in the inner room, it would have been invalid as a
will, the attaching of those signatures under circumstances not being done "in
the presence" of the witness in the outer room. This because the line of vision
from this witness to the testator and the other subscribing witnesses would
necessarily have been impeded by the curtain separating the inner from the
outer one "at the moment of inscription of each signature."

In the case just cited, on which the trial court relied, we held that:

"The true test of presence of the testator and the witnesses in the execution of a
will is not whether they actually saw each other sign, but whether they might
have been seen each other sign, had they chosen to do so, considering their
mental and physical condition and position with relation to each other at the
moment of inscription of each signature."

But it is especially to be noted that the position of the parties with relation to
each other at the moment of the subscription of each signature, must be such
that they may see each other sign if they choose to do so. This, of course, does
not mean that the testator and the subscribing witnesses may be held to have
executed the instrument in the presence of each other if it appears that they
would not have been able to see each other sign at that moment, without
changing their relative positions or existing conditions. The evidence in the case
relied upon by the trial judge discloses that "at the moment when the witness
Javellana signed the document he was actually and physically present and in
such position with relation to Jaboneta that he could see everything that took
place by merely casting his eyes in the proper direction and without any physical
obstruction to prevent his doing so." And the decision merely laid down the
doctrine that the question whether the testator and the subscribing witnesses to
an alleged will sign the instrument in the presence of each other does not depend
upon proof of the fact that their eyes were actually cast upon the paper at the
moment of its subscription by each of them, but that at that moment existing
conditions and their position with relation to each other were such that by merely
casting the eyes in the proper direction they could have seen each other sign. To
extend the doctrine further would open the door to the possibility of all manner
of fraud, substitution, and the like, and would defeat the purpose for which this
particular condition is prescribed in the code as one of the requisites in the
execution of a will.

The decree entered by the court below admitting the instrument propounded
therein to probate as the last will and testament of Pedro Rimando, deceased, is
affirmed with costs of this instance against the appellant.

Taboada v. Rosal, 118 SCRA 195

In the petition for probate filed with the respondent court, the petitioner attached the
alleged last will and testament of the late Dorotea Perez. Written in Cebuano-Visayan
dialect, the will consists of two pages. The first page contains the entire testamentary
dispositions and is signed at the end or bottom of the page by the testatrix alone and at
the left hand margin by the three (3) instrumental witnesses. The second page which
contains the attestation clause and the acknowledgment is signed at the end of the
attestation clause by the three 13) attesting witnesses and at the left hand margin by the
testatrix.

Since no opposition was filed after the petitioner's compliance with the requirement of
publications, the trial court commissioned the branch clerk of court to receive the
petitioner's evidence. Accordingly, the petitioner submitted his evidence and presented
Vicente Timkang, one of the subscribing witnesses to the will, who testified on its
genuineness and due execution.

The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned
order denying the probate of the will of Dorotea Perez for want of a formality in its
execution. In the same order, the petitioner was also required to submit the names of the
intestate heirs with their corresponding addresses so that they could be properly notified
and could intervene in the summary settlement of the estate.
The respondent Judge interprets the above-quoted provision of law to require that, for a
notarial will to be valid, it is not enough that only the testatrix signs at the "end" but all
the three subscribing witnesses must also sign at the same place or at the end, in the
presence of the testatrix and of one another because the attesting witnesses to a will attest
not merely the will itself but also the signature of the testator. It is not sufficient
compliance to sign the page, where the end of the will is found, at the left hand margin
of that page.

On the other hand, the petitioner maintains that Article 805 of the Civil Code does not
make it a condition precedent or a matter of absolute necessity for the extrinsic validity
of the will that the signatures of the subscribing witnesses should be specifically located
at the end of the will after the signature of the testatrix. He contends that it would be
absurd that the legislature intended to place so heavy an import on the space or particular
location where the signatures are to be found as long as this space or particular location
wherein the signatures are found is consistent with good faith and the honest frailties of
human nature.

For the validity of a formal notarial will, does Article 805 of the Civil Code require that
the testatrix and all the three instrumental and attesting witnesses sign at the end of the
will and in the presence of the testatrix and of one another?

Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed
at its end by the testator himself or by the testator's name written by another person in
his presence, and by his express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one another.

It must be noted that the law uses the terms attested and subscribed. Attestation consists
in witnessing the testator's execution of the will in order to see and take note mentally
that those things are done which the statute requires for the execution of a will and that
the signature of the testator exists as a fact. On the other hand, subscription is the signing
of the witnesses' names upon the same paper for the purpose of identification of such
paper as the will which was executed by the testator. (Ragsdale v. Hill, 269 SW 2d 911).

Insofar as the requirement of subscription is concerned, it is our considered view that the
will in this case was subscribed in a manner which fully satisfies the purpose of
identification.

The law is to be liberally construed, "the underlying and fundamental objective

permeating the provisions on the law on wills in this project consists in the liberalization
of the manner of their execution with the end in view of giving the testator more freedom
in expressing his last wishes but with sufficient safeguards and restrictions to prevent the
commission of fraud and the exercise of undue and improper pressure and influence
upon the testator. This objective is in accord with the modern tendency in respect to the
formalities in the execution of a will" (Report of the Code Commission, p. 103).

The objects of attestation and of subscription were fully met and satisfied in the present
case when the instrumental witnesses signed at the left margin of the sole page which
contains all the testamentary dispositions, especially so when the will was properly
identified by subscribing witness Vicente Timkang to be the same will executed by the
testatrix. There was no question of fraud or substitution behind the questioned order.

We have examined the will in question and noticed that the attestation clause failed to
state the number of pages used in writing the will. This would have been a fatal defect
were it not for the fact that, in this case, it is discernible from the entire will that it is really
and actually composed of only two pages duly signed by the testatrix and her
instrumental witnesses. As earlier stated, the first page which contains the entirety of the
testamentary dispositions is signed by the testatrix at the end or at the bottom while the
instrumental witnesses signed at the left margin. The other page which is marked as
"Pagina dos" comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "This Last Will and Testament consists of two pages
including this page."

The ratio decidendi of these cases seems to be that the attestation clause must contain a
statement of the number of sheets or passes composing the will and that if this is missing
or is omitted, it will have the effect of invalidating the will if the deficiency cannot be
supplied, not by evidence aliunde, but by a consideration or examination of the will itself.
But here the situation is different. While the attestation clause does not state the number
of sheets or pages upon which the will is written, however, the last part of the body of
the will contains a statement that it is composed of eight pages, which circumstance in
our opinion takes this case out of the rigid rule of construction and places it within the
realm of similar cases where a broad and more liberal view has been adopted to prevent
the will of the testator from being defeated by purely technical considerations."

" . . . Impossibility of substitution of this page is assured not only (sic) the fact that the
testatrix and two other witnesses, did sign the defective page, but also by its bearing the
coincident imprint of the seal of the notary public before whom the testament was ratified
by testatrix and all three witnesses. The law should not be so strictly and literally
interpreted as to penalize the testatrix on account of the inadvertence of a single witness
over whose conduct she had no control, where the purpose of the law to guarantee the
identity of the testament and its component pages is sufficiently attained, no intentional
or deliberate deviation existed, and the evidence on record attest to the full observance
of the statutory requisites. Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz
1459, at 1479 (decision on reconsideration) 'witnesses may sabotage the will by muddling
or bungling it or the attestation clause.'"
WHEREFORE, the present petition is hereby granted. The orders of the respondent Court
which denied the probate of the will, the motion for reconsideration of the denial of
probate, and the motion for appointment of a special administrator are set aside.

Echavez v. Dozen Construction, G.R. No. 192916,

October 11, 2010

Vicente Echavez (Vicente) was the absolute owner of the subject lots donated to
petitioner Manuel Echavez (Manuel) through a Deed of Donation Mortis Causa,
sans attestation clause, acknowledged before a notary public. Manuel accepted
the donation. Vicente sold the same lots in favor of Dozen Construction and
Development Corporation (Dozen Corporation). Manuel filed a petition to approve
Vicente’s donation mortis causa in his favor and an action to annul the contracts
of sale Vicente executed in favor of Dozen Corporation.

ISSUE

Whether or not the donation mortis causa is valid despite the non-conformity
with the formalities of a will.

RULING

NO. A donation mortis causa must comply with the formalities prescribed by law
for the validity of wills, “otherwise, the donation is void and would produce no
effect.” Articles 805 and 806 of the Civil Code should have been applied. Although
the witnesses in the present case acknowledged the execution of the Deed of
Donation Mortis Causa before the notary public, this is not the avowal the law
requires from the instrumental witnesses to the execution of a decedent’s will.
Hence, the donation is void, while the sale to Dozen Construction is valid.

In re Enrique Lopez. Lopez v. Lopez, G.R. No. 189984,

November 12, 2012

The RTC disallowed the probate of the will for failure to comply with the required
statement in the attestation clause as to the number of pages used upon which
the will is written. While the acknowledgment portion stated that the will consists
of 7 pages including the page on which the ratification and acknowledgment are
written, the RTC observed that it has 8 pages including the acknowledgment
portion. As such, it disallowed the will for not having been executed and attested
in accordance with law.

ISSUE
Whether or not the discrepancy between the number of pages in the attestation
clause and the actual number of pages in the will that would warrant its
disallowance.

RULING

YES. The provisions of the Civil Code on Forms of Wills, particularly, Articles 805
and 809 of the Civil Code provide that the attestation must state the number of
pages used upon which the will is written. The purpose of the law is to safeguard
against possible interpolation or omission of one or some of its pages and prevent
any increase or decrease in the pages. Here, the will actually consists of 8 pages
including its acknowledgment which discrepancy cannot be explained by mere
examination of the will itself but through the presentation of evidence aliunde.

Icasiano v. Icasiano, 11 SCRA 422

This special proceeding was begun on October 2, 1958 by a petition for the
allowance and admission to probate of the original, Exhibit "A" as the alleged will
of Josefa Villacorte, deceased, and for the appointment of petitioner Celso
Icasiano as executor thereof.

The evidence presented for the petitioner is to the effect that Josefa Villacorte
died in the City of Manila on September 12, 1958; that on June 2, 1956, the late
Josefa Villacorte executed a last will and testament in duplicate at the house of
her daughter Mrs. Felisa Icasiano at Pedro Guevara Street, Manila, published
before and attested by three instrumental witnesses, namely: attorneys Justo P.
Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that the will was
acknowledged by the testatrix and by the said three instrumental witnesses on
the same date before attorney Jose Oyengco Ong, Notary Public in and for the
City of Manila; and that the will was actually prepared by attorney Fermin
Samson, who was also present during the execution and signing of the
decedent's last will and testament, together with former Governor Emilio Rustia
of Bulacan, Judge Ramon Icasiano and a little girl. Of the said three instrumental
witnesses to the execution of the decedent's last will and testament, attorneys
Torres and Natividad were in the Philippines at the time of the hearing, and both
testified as to the due execution and authenticity of the said will. So did the
Notary Public before whom the will was acknowledged by the testatrix and
attesting witnesses, and also attorneys Fermin Samson, who actually prepared
the document. The latter also testified upon cross examination that he prepared
one original and two copies of Josefa Villacorte last will and testament at his
house in Baliuag, Bulacan, but he brought only one original and one signed copy
to Manila, retaining one unsigned copy in Bulacan.

The records show that the original of the will, which was surrendered
simultaneously with the filing of the petition and marked as Exhibit "A" consists
of five pages, and while signed at the end and in every page, it does not contain
the signature of one of the attesting witnesses, Atty. Jose V. Natividad, on page
three (3) thereof; but the duplicate copy attached to the amended and
supplemental petition and marked as Exhibit "A-1" is signed by the testatrix and
her three attesting witnesses in each and every page.

Witness Natividad who testified on his failure to sign page three (3) of the original,
admits that he may have lifted two pages instead of one when he signed the
same, but affirmed that page three (3) was signed in his presence.

We have examined the record and are satisfied, as the trial court was, that the
testatrix signed both original and duplicate copies (Exhibits "A" and "A-1",
respectively) of the will spontaneously, on the same in the presence of the three
attesting witnesses, the notary public who acknowledged the will; and Atty.
Samson, who actually prepared the documents; that the will and its duplicate
were executed in Tagalog, a language known to and spoken by both the testator
and the witnesses, and read to and by the testatrix and Atty. Fermin Samson,
together before they were actually signed; that the attestation clause is also in a
language known to and spoken by the testatrix and the witnesses. The opinion
of expert for oppositors, Mr. Felipe Logan, that the signatures of the testatrix
appearing in the duplicate original were not written by the same had which wrote
the signatures in the original will leaves us unconvinced, not merely because it
is directly contradicted by expert Martin Ramos for the proponents, but
principally because of the paucity of the standards used by him to support the
conclusion that the differences between the standard and questioned signatures
are beyond the writer's range of normal scriptural variation. The expert has, in
fact, used as standards only three other signatures of the testatrix besides those
affixed to the original of the testament (Exh. A); and we feel that with so few
standards the expert's opinion and the signatures in the duplicate could not be
those of the testatrix becomes extremely hazardous. This is particularly so since
the comparison charts Nos. 3 and 4 fail to show convincingly that the are radical
differences that would justify the charge of forgery, taking into account the
advanced age of the testatrix, the evident variability of her signatures, and the
effect of writing fatigue, the duplicate being signed right the original. These,
factors were not discussed by the expert.

Nor do we find adequate evidence of fraud or undue influence. The fact that some
heirs are more favored than others is proof of neither (see In re Butalid, 10 Phil.
27; Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronal, 45 Phil. 216). Diversity
of apportionment is the usual reason for making a testament; otherwise, the
decedent might as well die intestate. The testamentary dispositions that the heirs
should not inquire into other property and that they should respect the
distribution made in the will, under penalty of forfeiture of their shares in the
free part do not suffice to prove fraud or undue influence. They appear motivated
by the desire to prevent prolonged litigation which, as shown by ordinary
experience, often results in a sizeable portion of the estate being diverted into
the hands of non-heirs and speculators. Whether these clauses are valid or not
is a matter to be litigated on another occassion. It is also well to note that, as
remarked by the Court of Appeals in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud
and undue influence are mutually repugnant and exclude each other; their
joining as grounds for opposing probate shows absence of definite evidence
against the validity of the will.

On the question of law, we hold that the inadvertent failure of one witness to
affix his signature to one page of a testament, due to the simultaneous lifting of
two pages in the course of signing, is not per se sufficient to justify denial of
probate. Impossibility of substitution of this page is assured not only the fact
that the testatrix and two other witnesses did sign the defective page, but also
by its bearing the coincident imprint of the seal of the notary public before whom
the testament was ratified by testatrix and all three witnesses. The law should
not be so strictly and literally interpreted as to penalize the testatrix on account
of the inadvertence of a single witness over whose conduct she had no control,
where the purpose of the law to guarantee the identity of the testament and its
component pages is sufficiently attained, no intentional or deliberate deviation
existed, and the evidence on record attests to the full observance of the statutory
requisites. Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459,
at 1479 (decision on reconsideration) "witnesses may sabotage the will by
muddling or bungling it or the attestation clause".

This would not be the first time that this Court departs from a strict and literal
application of the statutory requirements, where the purposes of the law are
otherwise satisfied. Thus, despite the literal tenor of the law, this Court has held
that a testament, with the only page signed at its foot by testator and witnesses,
but not in the left margin, could nevertheless be probated (Abangan vs. Abangan,
41 Phil. 476); and that despite the requirement for the correlative lettering of the
pages of a will, the failure to make the first page either by letters or numbers is
not a fatal defect (Lopez vs. Liboro, 81 Phil. 429). These precedents exemplify the
Court's policy to require satisfaction of the legal requirements in order to guard
against fraud and bid faith but without undue or unnecessary curtailment of the
testamentary privilege.

The appellants also argue that since the original of the will is in existence and
available, the duplicate (Exh. A-1) is not entitled to probate. Since they opposed
probate of original because it lacked one signature in its third page, it is easily
discerned that oppositors-appellants run here into a dilemma; if the original is
defective and invalid, then in law there is no other will but the duly signed carbon
duplicate (Exh. A-1), and the same is probatable. If the original is valid and can
be probated, then the objection to the signed duplicate need not be considered,
being superfluous and irrelevant. At any rate, said duplicate, Exhibit A-1, serves
to prove that the omission of one signature in the third page of the original
testament was inadvertent and not intentional.
That the carbon duplicate, Exhibit A-1, was produced and admitted without a
new publication does not affect the jurisdiction of the probate court, already
conferred by the original publication of the petition for probate. The amended
petition did not substantially alter the one first filed, but merely supplemented
it by disclosing the existence of the duplicate, and no showing is made that new
interests were involved (the contents of Exhibit A and A-1 are admittedly
identical); and appellants were duly notified of the proposed amendment. It is
nowhere proved or claimed that the amendment deprived the appellants of any
substantial right, and we see no error in admitting the amended petition.
IN VIEW OF THE FOREGOING, the decision appealed from is affirmed

Cruz v. Villasor, 54 SCRA, 31

Petition to review on certiorari the judgment of the Court of First Instance of

Cebu allowing the probate of the last will and testament of the late Valente Z.
Cruz. Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said
deceased, opposed the allowance of the will (Exhibit "E"), alleging that the will
was executed through fraud, deceit, misrepresentation and undue influence;
that the said instrument was executed without the testator having been fully
informed of the contents thereof, particularly as to what properties he was
disposing; and that the supposed last will and testament was not executed in
accordance with law. Notwithstanding her objection, the Court allowed the
probate of the said last will and testament. Hence this appeal by certiorari which
was given due course.

The only question presented for determination, on which the decision of the case
hinges, is whether the supposed last will and testament of Valente Z. Cruz
(Exhibit "E") was executed in accordance with law, particularly Articles 805 and
806 of the new Civil Code, the first requiring at least three credible witnesses to
attest and subscribe to the will, and the second requiring the testator and the
witnesses to acknowledge the will before a notary public.

Of the three instrumental witnesses thereto, namely, Deogracias T. Jamaoas,

Jr., Dr. Francisco Pañares, and Atty. Angel H. Teves, Jr., one of them, the last
named, is at the same time the Notary Public before whom the will was supposed
to have been acknowledged.

After weighing the merits of the conflicting claims of the parties, We are inclined
to sustain that of the appellant that the last will and testament in question was
not executed in accordance with law. The notary public before whom the will was
acknowledged cannot be considered as the third instrumental witness since he
cannot acknowledge before himself his having signed the will. To acknowledge
before means to avow (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v Castro,
100 Phil. 239, 247); to own as genuine, to assent, to admit; and "before" means
in front or preceding in space or ahead of. (The New Webster Encyclopedic
Dictionary of the English Language, p. 72; Funk & Wagnalls New Standard
Dictionary of the English Language, p. 252; Webster's New International
Dictionary 2d. p. 245.) Consequently, if the third witness were the notary public
himself, he would have to avow, assent, or admit his having signed the will in
front of himself. This cannot be done because he cannot split his personality into
two so that one will appear before the other to acknowledge his participation in
the making of the will. To permit such a situation to obtain would be sanctioning
a sheer absurdity.

Furthermore, the function of a notary public is, among others, to guard against
any illegal or immoral arrangements. Balinon v. De Leon, 50 O. G. 583.) That
function would be defeated if the notary public were one of the attesting or
instrumental witnesses. For them he would be interested in sustaining the
validity of the will as it directly involves himself and the validity of his own act.
It would place him in an inconsistent position and the very purpose of the
acknowledgment, which is to minimize fraud (Report of the Code Commission p.
106-107), would be thwarted. These authorities do not serve the purpose of the
law in this jurisdiction or are not decisive of the issue herein, because the
notaries public and witnesses referred to in the aforecited cases merely acted as
instrumental, subscribing or attesting witnesses, and not as acknowledging
witnesses. Here the notary public acted not only as attesting witness but also as
acknowledging witness, a situation not envisaged by Article 805 of the Civil Code.

To allow the notary public to act as third witness, or one of the attesting and
acknowledging witnesses, would have the effect of having only two attesting
witnesses to the will which would be in contravention of the provisions of Article
805 requiring at least three credible witnesses to act as such and of Article 806
which requires that the testator and the required number of witnesses must
appear before the notary public to acknowledge the will. The result would be, as
has been said, that only two witnesses appeared before the notary public for that
purpose. In the circumstances, the law would not be duly observed.

Gabucan v. Manta, 95 SCRA 752

This case is about the dismissal of a petition for the probate of a notarial will on
the ground that it does not bear a thirty-centavo documentary stamp.

The Court of First Instance of Camiguin in its "decision" of December 28, 1977
in Special Proceeding No. 41 for the probate of the will of the late Rogaciano
Gabucan, dismissed the proceeding (erroneously characterizes as an "action").

The proceeding was dismissed because the requisite documentary stamp was
not affixed to the notarial acknowledgment in the will and, hence, according to
respondent The probate court assumed that the notarial acknowledgment of the
said will is subject to the thirty-centavo documentary stamp tax fixed in section
225 of the Tax Code, now section 237 of the 1977 Tax Code. Judge, it was not
admissible in evidence, citing section 238 of the Tax Code.
We hold that the lower court manifestly erred in declaring that, because no
documentary stamp was affixed to the will, there was "no will and testament to
probate" and, consequently, the alleged "action must of necessity be dismissed."
What the probate court should have done was to require the petitioner or
proponent to affix the requisite thirty-centavo documentary stamp to the notarial
acknowledgment of the will which is the taxable portion of that document.

That procedure may be implied from the provision of section 238 that the non-
admissibility of the document, which does not bear the requisite documentary
stamp, subsists only "until the requisite stamp or stamps shall have been affixed
thereto and cancelled."

Thus, it was held that the documentary stamp may be affixed at the time the
taxable document is presented in evidence (Del Castillo vs. Madrileña, 49 Phil.
749) If the promissory note does not bear a documentary stamp, the court should
have allowed plaintiff's tender of a stamp to supply the deficiency. (Rodriguez vs.
Martinez, 5 Phil. 67, 71. Note the holding in Azarraga vs. Rodriguez, 9 Phil. 637,
that the lack of the documentary stamp on a document does not invalidate such
document. See Cia. General de Tabacos vs. Jeanjaquet, 12 Phil. 195, 201-2 and
Delgado and Figueroa vs. Amenabar, 16 Phil. 403, 405-6.)

Javellana v. Ledesma, 97 Phil. 258

By order of July 23, 1953, the Court of First Instance of Iloilo admitted to probate
the documents in the Visayan dialect, marked Exhibits D and E, as the
testament and codicil duly executed by the deceased Da. Apolinaria Ledesma
Vda. de Javellana, on March 30, 1950, and May 29, 1952, respectively, with
Ramon Tabiana, Gloria Montinola de Tabiana and Vicente Yap as witnesses. The
contestant, Da. Matea Ledesma, sister and nearest surviving relative of said
deceased, appealed from the decision, insisting that the said exhibits were not
executed in conformity with law. The appeal was made directly to this Court
because the value of the properties involved exceeded two hundred thousand
pesos.

Originally the opposition to the probate also charged that the testatrix lacked
testamentary capacity and that the dispositions were procured through undue
influence. These grounds were abandoned at the hearing in the court below,
where the issue was concentrated into three specific questions: (1) whether the
testament of 1950 was executed by the testatrix in the presence of the
instrumental witnesses; (2) whether the acknowledgment clause was signed and
the notarial seal affixed by the notary without the presence of the testatrix and
the witnesses; and (3) if so, whether the codicil was thereby rendered invalid and
ineffective. These questions are the same ones presented to us for resolution.
The contestant argues that the Court below erred in refusing credence to her
witnesses Maria Paderogao and Vidal Allado, cook and driver, respectively, of the
deceased Apolinaria Ledesma. Both testified that on March 30, 1950, they saw
and heard Vicente Yap (one of the witnesses to the will) inform the deceased that
he had brought the "testamento" and urge her to go to attorney Tabiana's office
to sign it; that Da. Apolinaria manifested that she could not go, because she was
not feeling well; and that upon Yap's insistence that the will had to be signed in
the attorney's office and not elsewhere, the deceased took the paper and signed
it in the presence of Yap alone, and returned it with the statement that no one
would question it because the property involved was exclusively hers.

At any rate, as observed by the Court below, whether or not the notary signed
the certification of acknowledgment in the presence of the testatrix and the
witnesses, does not affect the validity of the codicil. Unlike the Code of 1889 (Art.
699), the new Civil Code does not require that the signing of the testator,
witnesses and notary should be accomplished in one single act. A comparison of
Articles 805 and 806 of the new Civil Code reveals that while testator and
witnesses must sign in the presence of each other, all that is thereafter required
is that "every will must be acknowledged before a notary public by the testator
and the witnesses" (Art. 806); i.e., that the latter should avow to the certifying
officer the authenticity of their signatures and the voluntariness of their actions
in executing the testamentary disposition. This was done in the case before us.
The subsequent signing and sealing by the notary of his certification that the
testament was duly acknowledged by the participants therein is no part of the
acknowledgment itself nor of the testamentary act. Hence their separate
execution out of the presence of the testatrix and her witnesses can not be said
to violate the rule that testaments should be completed without interruption
(Andalis vs. Pulgueras, 59 Phil. 643), or, as the Roman maxim puts it, "uno
eodem die ac tempore in eadem loco", and no reversible error was committed by
the Court in so holding. It is noteworthy that Article 806 of the new Civil Code
does not contain words requiring that the testator and the witnesses should
acknowledge the testament on the same day or occasion that it was executed.

Witnesses to a will
a. Who are competent? Arts.820, 821,824

Art. 820. Any person of sound mind and of the age of eighteen years or
more, and not bind, deaf or dumb, and able to read and write, may be a
witness to the execution of a will mentioned in Article 805 of this Code. (n)

T: these are witnesses under an ordinary will.

B: Six qualifications of a witness: 1. sound mind; 2. 18 years of age; 3. not blind,

deaf or dumb,; 4. literateor able to read and write; domicile in the Philippines;6.
not convicted of a crime involving, falsification, perjury, or false testimony.
Art. 821. The following are disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines;
(2) Those who have been convicted of falsification of a document,
perjury or false testimony. (n)
T: The law requires that the witness be domiciled in the Philippines mere
residence is not sufficient. Domicile under Art. 50, Art. 50. For the exercise of
civil rights and the fulfillment of civil obligations, the domicile of natural persons
is the place of their habitual residence. (40a)
Ratio of domicile requirement:
1. availability of witness when will is probated if the same is within the
Philippines;
2. witness domiciled in the Philippines more likely to know the testator
and be ablr to testify on his mental condition at the time of execution of
the will.
Except of course if the will was executed in a foreign country the domicile
requirement does not apply.
There is citizenship requirement only domicile requirement. Even aliens may
witness as long as they are domiciled here.
As to conviction of perjury, falsification, and false testimony, it is presumed that
such witness cannot be relied upon fot truthfulness. Conviction for any other
crime, however, is not a disqualification
The notary public before whom the will was acknowledged cannot act as witness
because he cannot acknowledge before himself his having signed the will; this
cannot be done because it would place him in an inconsistent position and the
very purpose of the acknowledgement, which is to minimize fraud would be
thwarted.
Art. 824. A mere charge on the estate of the testator for the payment of
debts due at the time of the testator's death does not prevent his creditors
from being competent witnesses to his will. (n)
B: Because This is not a testamentary disposition

Gonzales v. CA, 90 SCRA 183

b. Supervening incompetency. Art. 822

c. Competency of interested witness. Art. 823

3. Special Requirements for deaf, deaf-mute & blind testators.

Arts. 807-808

Garcia v. Vasquez, 32 SCRA 489

4. Substantial Compliance. Art. 809

C. Holographic Wills
1. General requirements. Art.804
2. Specific requirements. Art. 810, 812, 813
 Roxas v. De Jesus, 134 SCRA 245
Kalaw v. Relova, 132 SCRA 237

V. INCORPORATION OF DOCUMENT BY REFERENCE. Art. 827

VI. CODICILS

A. Definition. Art. 825, 830

B. Solemnities. Art. 826

VII. REVOCATION OF WILLS AND TESTAMENTARY DISPOSITIONS

A. Definition of revocation
B. When may revocation be effected. Art. 828
C. Law governing revocation. Art. 829
D. Modes of revocation. Art. 830

Gago v. Mamuyac, 49 Phil. 902

Casiano v. CA, 158 SCRA 451

E. Effect of revocation. Arts. 831-834

F. Doctrine of Dependent Relative Revocation

Molo v. Molo, 90 Phil. 37

VIII. REPUBLICATION AND REVIVAL OF WILLS - Arts. 835-837

IX. ALLOWANCE OF WILLS. Art. 838

A. Concept of probate

Agtarap v. Agtarap, G.R. No. 177099 and 177192, June 8,

2011

B. Necessity of probate

De Borja v. De Borja, 46 SCRA 577

C. Modes of probate

D. Requirements for probate. Art. 811

 Gan v. Yap, 104 Phil 509
Rodelas v. Aranza, 119 SCRA 16
Azaola v. Singson, 109 Phil. 102
Codoy v. Calugay, 312 SCRA 333
Uy Kiao Eng v. Nixon Lee, G.R. No. 176831, January 15, 2010
Palaganas v. Palaganas, G.R. No. 169144, January 26, 2011

E. Effect of allowance of wills

Gallanosa .v. Arcangel, 83 SCRA 676

De la Cerna v. Leonides, 129 SCRA 33
Roberts v. Leonides, 129 SCRA 33
Nepomuceno v. Ca, 139 SCRA 206

X. DISALLOWANCE OF WILLS. Arts. 839, 1335, 1337, 1338

Pascual v. de la Cruz, 28 SCRA 421

XI. LEGITIME

A. Concept. Art. 886

B. Who are entitled to legitimes: Compulsory heirs. Arts. 887,

902

Rosales v. Rosales, 148 SCRA 69

C. Concurrence of compulsory heirs and their corresponding

legitimes.
Arts. 888-890, 892-901, 903, Art. 39, P.D. 603

D. Restrictions regarding the legitime. Arts. 904, 872, 905-907,

1347

Santiago v. Santiago, et. al., G.R. 179859, August 9, 2010

E. Determination or computation. Arts.908-913

COLLATION. Arts. 1061-1077

Arellano v. Pascual, G.R. No. 189776, December 15, 2010

 Gregorio v. Madarang, G.R. No. 185226, February 11, 2010
Dizon-Rivera v. Dizon, 33 SCRA 554
De Roma v. CA, 152 SCRA 205
Locsin v. CA, 206 SCRA 383

F. Freedom to dispose free portion. Art. 914

Principles Affecting Legitime

XII. PRETERITION. Arts. 854, 906, 855, 918

Heirs of Policronio Ureta, Sr. v. Heirs of Liberato Ureta, G.R. No.

165748 and 165930, September 14, 2011
Aznar v. Duncan, 17 SCRA 590
Nuguid v. Nuguid, 17 SCRA 449
Reyes v. Barreto-Datu, 19 SCRA 85
Escuin v. Escuin, 11 Phil. 332
Balanay v. Martinez, 64 SCRA 452
Solano v. CA, 126 SCRA 122
Acain v. CA, 155 SCRA 100

XIII. RESERVA TRONCAL. Art. 891

Edroso v. Sablan, 25 Phil. 295

Seinnes v. Esparcia, 1 SCRA 750
Florentino v. Florentino, 40 Phil. 480
Padura v. Baldovino, 104 Phil. 1065
Chua v.CFI, 78 SCRA 406
Gonzales v. CFI 104 SCRA 161
De Papa v. Camacho, 144 SCRA 281

XIV. RESERVA ADOPTIVA. Art. 39, PD 603

Banawa v. Mirano, 97 SCRA 517

Teotico v. del Val, 13 SCRA 406

XV. DISINHERITANCE. Arts. 915-923

Principles Affecting the Freely Disposable Portion

XVI. INSTITUTION OF HEIRS

A. In General
1. Definition. Art. 840
2. Requisites for valid institution of heirs. Relate to Arts.
785, 787
3. Effect if will institutes no heir. Art. 841
4. Freedom of disposition. Art. 842
5. Manner of designating an heir. Art. 843-844 in relation
to Art.789.
6. Disposition in favor of an unknown person. Art. 845
7. Disposition in favor of a definite class. Art. 845 in relation to.
Art. 786
8. Equality of heirs. Arts. 846, 848
9. Individuality of institution. Art. 847
10. Simultaneity of institution. Art. 849
11. Institution based on a false cause. Art. 850

Austria v. Reyes, 31 SCRA 754

12. Shares in the institution. Arts. 851-853

13. Predecease of heirs. Art. 856

B. Kinds of Institution
1. Simple or Pure. Art. 777
2. Conditional. Art. 871
a. Kinds

Vda. De Kilayko v. Tengco, 207 SCRA 600

b. Inoperative conditions. Arts. 872- 874, relate to Art.

1183
c. Disposition Captatoria. Art. 875
d. Compliance. Arts. 876- 877, 2nd par.
e. Effect. Arts. 1034, 3rd par., 879, 880, 881, 884

3. Institution with a Term

a. Kinds Art. 885, 1st par.
b. Effect. Arts. 878, 885 2nd par. in relation to 880.

4. Modal Institution. Arts 882-883