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Uson v. Del Rosario, G.R. No. L-4963, January 29, 1953.

Maria Uson was the lawful wife of Faustino Nebreda who upon his death in 1945 left the
lands involved in this litigation. Faustino Nebreda left no other heir except his widow
Maria Uson. Maria Uson sought to recover lands held by Maria del Rosario who had
four illegitimate children with Nebreda, which the latter contends that her children are
given the status and rights of natural children and are entitled to the successional rights,
and because these successional rights were declared for the first time in the new code,
they shall be given retroactive effect.

Whether or not the illegitimate children may have successional rights under the new
Civil Code by way of its retroactive effect.

NO. Article 2253 above referred to provides indeed that rights which are declared for
the first time shall have retroactive effect even though the event which gave rise to them
may have occurred under the former legislation, but this is so only when the new rights
do not prejudice any vested or acquired right of the same origin. The law commands
that the rights to succession are transmitted from the moment of death (Article 657, old
Civil Code). The new right recognized by the new Civil Code in favor of the illegitimate
children of the deceased cannot, therefore, be asserted to the impairment of the vested
right of Maria Uson over the lands in dispute.

Borja v. Borja
46 SCRA 577


Francisco de Borja filed a petition for probate of the will of his wife who died, Josefa
Tangco, with the CFI of Rizal. He was appointed executor and administrator, until he
died; his son Jose became the sole administrator. Francisco had taken a 2nd wife
Tasiana before he died; she instituted testate proceedings with the CFI of Nueva Ecija
upon his death and was appointed special administatrix. Jose and Tasiana entered upon
a compromise agreement, but Tasiana opposed the approval of
the compromise agreement. She argues that it was no valid, because the heirs cannot
enter into such kind of agreement without first probating the will of Francisco, and at
the time the agreement was made, the will was still being probated with the CFI of
Nueva Ecija.

W/N the compromise agreement is valid, even if the will of Francisco has not yet been


YES, the compromise agreement is valid.

The agreement stipulated that Tasiana will receive P800,000 as full payment for her
hereditary share in the estate of Francisco and Josefa.

There was here no attempt to settle or distribute the estate of Francisco de Borjaamong
the heirs thereto before the probate of his will. The clear object of the contract was
merely the conveyance by Tasiana Ongsingco of any and all her individual share and
interest, actual or eventual, in the estate of Francisco de Borjaand Josefa Tangco. There
is no stipulation as to any other claimant, creditor or legatee.

And as a hereditary share in a decedent’s estate is transmitted or vested immediately

from the moment of the death of such causante or predecessor in interest (Civil Code of
the Philippines, Art. 777) there is no legal bar to a successor (with requisite contracting
capacity) disposing of her or his hereditary share immediately after such death, even if
the actual extent of such share is not determined until the subsequent liquidation of the

Bonilla v. Barcena, G.R. No. L-41715, June 18, 1976.

Fortunata Barcena filed an action to quiet title over parcels of land. Pending the
proceeding, she died. The counsel for deceased plaintiff filed a written manifestation
praying that the minors Rosalio Bonilla and Salvacion Bonilla be allowed to substitute
their deceased mother, but the court denied the counsel’s prayer for lack of merit, and
dismissed the complaint on the ground that a dead person has no legal personality to

Whether or not a court action survives, through the heirs, after the death of the plaintiff.

YES. Article 777 of the Civil Code provides “that the rights to the succession are
transmitted from the moment of the death of the decedent.” From the moment of the
death of the decedent, the heirs become the absolute owners of his property, subject to
the rights and obligations of the decedent, and they cannot be deprived of their rights
thereto except by the methods provided for by law. When Fortunata Barcena, therefore,
died her claim or right to the parcels of land in litigation, was not extinguished by her
death but was transmitted to her heirs upon her death. Her heirs have thus acquired
interest in the properties in litigation and became parties in interest in the case. There is,
therefore, no reason for the respondent Court not to allow their substitution as parties in
interest for the deceased plaintiff.

G.R. No. L-46364 April 6, 1990


GRADO, respondents.

Antonio E. Bengzon III for petitioners.

Agustin U. Cruz for private respondents.


Before Us is a petition for review on certiorari of the following Decision 1 and

Resolution 2 of the Honorable Court of Appeals: (1) Decision, dated March 1, 1977 in
C.A.-G.R. No. 49178-R entitled "Sulpicia Jimenez, et al., v. Vicente Fernandez, et al."
affirming in toto the judgment of the Court of First Instance of Pangasinan, Third Judicial
District in Civil Case No. 14802-I between the same parties and (2) Resolution dated
June 3, 1977 denying plaintiffs-appellants' motion for reconsideration.

As gathered from the records, the factual background of this case is as follows:

The land in question is the Eastern portion with an area of Four Hundred Thirty Six
(436) square meters of that parcel of residential land situated in Barrio Dulig (now
Magsaysay), Municipality of Labrador, Pangasinan actually covered by Transfer
Certificate of Title No. 82275 (Exhibit A) issued in the name of Sulpicia Jimenez.

The entire parcel of land with an area of 2,932 square meters, formerly belonged to
Fermin Jimenez. Fermin Jimenez has two (2) sons named Fortunato and Carlos
Jimenez. This Fortunato Jimenez who predeceased his father has only one child, the
petitioner Sulpicia Jimenez. After the death of Fermin Jimenez, the entire parcel of land
was registered under Act 496 in the name of Carlos Jimenez and Sulpicia Jimenez
(uncle and niece) in equal shares pro-indiviso. As a result of the registration case
Original Certificate of Title No. 50933 (Exhibit 8) was issued on February 28, 1933, in
the names of Carlos Jimenez and Sulpicia Jimenez, in equal shares pro-indiviso.
Carlos Jimenez died on July 9, 1936 and his illegitimate daughter, Melecia Cayabyab,
also known as Melecia Jimenez, took possession of the eastern portion of the property
consisting of 436 square meters.

On January 20, 1944, Melecia Jimenez sold said 436 square meter-portion of the
property to Edilberto Cagampan and defendant Teodora Grado executed a contract
entitled "Exchange of Real Properties" whereby the former transferred said 436 square
meter-portion to the latter, who has been in occupation since.

On August 29, 1969, plaintiff Sulpicia Jimenez executed an affidavit adjudicating unto
herself the other half of the property appertaining to Carlos Jimenez, upon manifestation
that she is the only heir of her deceased uncle. Consequently Transfer Certificate of
Title No. 82275 was issued on October 1, 1969 in petitioner's name alone over the
entire 2,932 square meter property.

On April 1, 1970, Sulpicia Jimenez, joined by her husband, instituted the present action
for the recovery of the eastern portion of the property consisting of 436 square meters
occupied by defendant Teodora Grado and her son.

After trial on the merits, the lower court rendered judgment, the dispositive portion of
which reads:

WHEREFORE, decision is hereby rendered dismissing the complaint and holding

the defendant, Teodora Grado, the absolute owner of the land in question;
ordering the plaintiffs to pay to the defendant the amount of P500.00 as
damages, as attorney's fees, and to pay the costs of suit.

SO ORDERED. (Rollo, p. 20)

Petitioner appealed the above judgment to the respondent Court of Appeals and on
March 1, 1977, respondent Court of Appeals rendered a decision affirming the same in
toto. Said decision was rendered by a special division of five (5) justices, with the Hon.
Lourdes San Diego, dissenting.

Petitioners within the reglementary period granted by the Honorable Court of Appeals,
filed therewith a motion for reconsideration. But said motion for reconsideration was
denied by the Court of Appeals in its resolution dated June 3, 1977.

In their appeal to the respondent Court of Appeals from the aforequoted decision of the
trial court, herein petitioner raised the following assignments of error to wit:



















From the foregoing, this petition for review was filed.

We find merit in the petition.

From the start the respondent court erred in not declaring that Melecia Jimenez
Cayabyab also known as Melecia Jimenez, is not the daughter of Carlos Jimenez and
therefore, had no right over the property in question. Respondents failed to present
concrete evidence to prove that Melecia Cayabyab was really the daughter of Carlos
Jimenez. Nonetheless, assuming for the sake of argument that Melecia Cayabyab was
the illegitimate daughter of Carlos Jimenez there can be no question that Melecia
Cayabyab had no right to succeed to the estate of Carlos Jimenez and could not have
validly acquired, nor legally transferred to Edilberto Cagampan that portion of the
property subject of this petition.

It is well-settled in this jurisdiction that the rights to the succession are transmitted from
the moment of the death of the decedent (Art. 777, Civil Code). Moreover, Art. 2263 of
the Civil Code provides as follows:

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 . . . (Rollo, p. 17)

Thus, since Carlos Jimenez, owner of one-half pro-indiviso portion of that parcel of land
then covered by Original Certificate of title No. 50933, died on July 9, 1936 (Exhibit "F")
way before the effectivity of the Civil Code of the Philippines, the successional rights
pertaining to his estate must be determined in accordance with the Civil Code of 1889.

Citing the case of Cid v. Burnaman (24 SCRA 434) wherein this Court categorically held

To be an heir under the rules of Civil Code of 1889 (which was the law in force
when Carlos Jimenez died and which should be the governing law in so far as
the right to inherit from his estate was concerned), a child must be either a child
legitimate, legitimated, or adopted, or else an acknowledged natural child — for
illegitimate not natural are disqualified to inherit. (Civil Code of 1889, Art. 807,

Even assuming that Melecia Cayabyab was born out of the common-law-relationship
between her mother (Maria Cayabyab) and Carlos Jimenez, she could not even be
considered an acknowledged natural child because Carlos Jimenez was then legally
married to Susana Abalos and therefore not qualified to marry Maria Cayabyab and
consequently Melecia Cayabyab was an illegitimate spurious child and not entitled to
any successional rights in so far as the estate of Carlos Jimenez was concerned.

Melecia Cayabyab in the absence of any voluntary conveyance to her by Carlos

Jimenez or Sulpicia Jimenez of the litigated portion of the land could not even legally
transfer the parcel of land to Edilberto Cagampan who accordingly, could not also
legally transfer the same to herein private respondents.

Analyzing the case before Us in this manner, We can immediately discern another error
in the decision of the respondent court, which is that the said court sustained and made
applicable to the case at bar the ruling in the case of Arcuino, et al., v. Aparis and
Puray, No. L-23424, January 31, 1968, 22 SCRA 407, wherein We held that:

. . . it is true that the lands registered under the Torrens System may not be
acquired by prescription but plaintiffs herein are not the registered owners. They
merely claim to have acquired by succession, their alleged title or interest in lot
No. 355. At any rate plaintiffs herein are guilty of laches.

The respondent court relying on the Arcuino case, concluded that respondents had
acquired the property under litigation by prescription. We cannot agree with such
conclusion, because there is one very marked and important difference between the
case at bar and that of the Arcuino case, and that is, that since 1933 petitioner Sulpicia
Jimenez was a title holder, the property then being registered in her and her uncle
Carlos Jimenez' name. In the Arcuino case, this Supreme Court held. "(I)t is true that
lands registered under the Torrens System may not be acquired by prescription but
plaintiffs herein are not the registered owners." (Rollo, p. 38) Even in the said cited case
the principle of imprescriptibility of Torrens Titles was respected.

Melecia Cayabyab's possession or of her predecessors-in-interest would be unavailing

against the petitioner Sulpicia Jimenez who was the holder pro-indiviso with Carlos
Jimenez of the Torrens Certificate of Title covering a tract of land which includes the
portion now in question, from February 28, 1933, when the Original Certificate of Title
No. 50933 (Exhibit 8) was issued.

No possession by any person of any portion of the land covered by said original
certificate of titles, could defeat the title of the registered owner of the land covered by
the certificate of title. (Benin v. Tuason, L-26127, June 28, 1974, 57 SCRA 531)

Sulpicia's title over her one-half undivided property remained good and continued to be
good when she segregated it into a new title (T.C.T No. 82275, Exhibit "A") in 1969.
Sulpicia's ownership over her one-half of the land and which is the land in dispute was
always covered by a Torrens title, and therefore, no amount of possession thereof by
the respondents, could ever defeat her proprietary rights thereon. It is apparent, that the
right of plaintiff (now petitioner) to institute this action to recover possession of the
portion of the land in question based on the Torrens Title of Sulpicia Jimenez, T.C.T.
No. 82275 (Exhibit "A") is imprescriptible and not barred under the doctrine of laches.
(J.M. Tuason & Co. v. Macalindong, L-15398, December 29, 1962, Francisco v. Cruz, et
al., 43 O.G. 5105) Rollo, p. 39)

The respondent Court of Appeals declared the petitioner Sulpicia Jimenez guilty of
laches and citing the ruling in the case of Heirs of Lacamen v. Heirs of Laruan (65
SCRA 605), held that, since petitioner Sulpicia Jimenez executed her Affidavit of Self-
Adjudication only in 1969, she lost the right to recover possession of the parcel of land
subject of the litigation.

In this instance, again We rule for the petitioner. There is no absolute rule as to what
constitutes laches or staleness of demand; each case is to be determined according to
its particular circumstances. The question of laches is addressed to the sound discretion
of the court and since laches is an equitable doctrine, its application is controlled by
equitable considerations. It cannot be worked to defeat justice or to perpetrate fraud and
injustice. It would be rank injustice and patently inequitous to deprive the lawful heirs of
their rightful inheritance.

Petitioner Sulpicia Jimenez is entitled to the relief prayed for, declaring her to be the
sole and absolute owner of the land in question with right to its possession and
enjoyment. Since her uncle Carlos Jimenez died in 1936, his pro-indiviso share in the
properties then owned in co-ownership with his niece Sulpicia descended by intestacy
to Sulpicia Jimenez alone because Carlos died without any issue or other heirs.

After all, the professed objective of Act No. 496, otherwise known as the Land
Registration Act or the law which established the Torrens System of Land Registration
in the Philippines is that the stability of the landholding system in the Philippines
depends on the confidence of the people in the titles covering the properties. And to this
end, this Court has invariably upheld the indefeasibility of the Torrens Title and in,
among others, J.M. Tuason and Co., Inc. v. Macalindong (6 SCRA 938), held that "the
right of the appellee to file an action to recover possession based on its Torrens Title
is imprescriptible and not barred under the doctrine of laches.

WHEREFORE, the Petition for Review is hereby GRANTED. The Decision and
Resolution dated March 1, 1977 and June 3, 1977 in CA G.R. No. L-49178-R are SET


G.R. No. L-25966 November 1, 1926

In the matter of the estate of Tomas Rodriguez, deceased. MANUEL TORRES,

special administrator, and LUZ LOPEZ DE BUENO, heir, appellee,
MARGARITA LOPEZ, opponent-appellant.

Marcaida, Capili and Ocampo and Camus, Delgado and Recto for appellant.
Araneta and Zaragoza for appellee.

This appeal involves a controversy over one-half of the estate of Tomas Rodriguez,
decedent. The appellant, Margarita Lopez, claims said half by the intestate succession
as next of kin and nearest heir; while the appellee, Luz Lopez de Bueno, claims the
same by accredition and in the character of universal heir the will of the decedent. The
trial court decided the point of controversy in favor of Luz Lopez de Bueno, and
Margariat Lopez appealed.

The facts necessary to an understanding of the case are these: On January 3, 1924,
Tomas Rodriguez executed his last will and testament, in the second clause of which he

I institute as the only and universal heirs to all my property, my cousin Vicente F.
Lopez and his daughter Luz Lopez de Bueno.

Prior to the time of the execution of this will the testator, Tomas Rodriguez, had been
judicially declared incapable of taking care of himself and had been placed under the
care of his cousin Vicente F. Lopez, as guardian. On January 7, 1924, or only four days
after the will above-mentioned was made, Vicente F. Lopez died; and the testator,
Tomas Rodriguez, died on February 25, 1924, thereafter. At the time the will was made
Vicente F. Lopez had not presented his final accounts as guardian, and no such
accounts had been presented by him at the time of his death. Margariat Lopez was a
cousin and nearest relative of the decedent. The will referred to, and after having been
contested, has been admitted to probate by judicial determination (Torres and Lopez de
Bueno vs. Lopez, 48 Phil., 772).

Our discussion of the legal problem presented should begin with article 753 of the Civil
Code which in effect declares that, with certain exceptions in favor of near relatives, no
testamentary provision shall be valid when made by a ward in favor of his guardian
before the final accounts of the latter have been approved. This provision is of
undoubted application to the situation before us; and the provision made in the will of
Tomas Rodriguez in favor of Vicente F. Lopez was not any general incapacity on his
part, but a special incapacity due to the accidental relation of guardian and ward
existing between the parties.

We now pass to article 982 of the Civil Code, defining the right of accretion. It is there
declared, in effect, that accretion take place in a testamentary succession, first when the
two or more persons are called to the same inheritance or the same portion thereof
without special designation of shares; and secondly, when one of the persons so called
dies before the testator or renounces the inheritance or is disqualifying to receive it. In
the case before us we have a will calling Vicente F. Lopez and his daughter, Luz Lopez
de Bueno, to the same inheritance without special designation of shares. In addition to
this, one of the persons named as heir has predeceased the testator, this person being
also disqualified to receive the estate even if he had been alive at the time of the
testator's death. This article (982) is therefore also of exact application to the case in
hand; and its effect is to give to the survivor, Luz Lopez de Bueno, not only the
undivided half which she would have received in conjunction with her father if he had
been alive and qualified to take, but also the half which pertained to him. There was no
error whatever, therefore, in the order of the trial court declaring Luz Lopez de Bueno
entitled to the whole estate.

The argument in favor of the appellant supposes that there has supervened a partial
intestacy with respect to the half of the estate which was intended for Vicente F. Lopez
and that this half has descended to the appellant, Margarita Lopez, as next of kin and
sole heir at law of the decedent. In this connection attention is directed to article 764 of
the Civil Code wherein it is declared, among other things, that a will may be valid even
though the person instituted as heir is disqualified to inherit. Our attention is next invited
to article 912 wherein it is declared, among other things, that legal succession takes
place if the heir dies before the testator and also when the heir instituted is disqualified
to succeed. Upon these provisions an argument is planted conducting to the conclusion
that the will of Tomas Rodriguez was valid, notwithstanding the fact that one of the
individuals named as heirs in the will was disqualified to take, and that as a
consequence Margarita Lopez s entitled to inherit the share of said disqualified heir.

We are the opinion that this contention is untenable and that the appellee clearly has
the better right. In playing the provisions of the Code it is the duty of the court to
harmonize its provisions as far as possible, giving due effect to all; and in case of
conflict between two provisions the more general is to be considered as being limited by
the more specific. As between articles 912 and 983, it is obvious that the former is the
more general of the two, dealing, as it does, with the general topic of intestate
succession while the latter is more specific, defining the particular conditions under
which accretion takes place. In case of conflict, therefore, the provisions of the former
article must be considered limited by the latter. Indeed, in subsection 3 of article 912 the
provision with respect to intestate succession is expressly subordinated to article 983 by
the expression "and (if) there is no right of accretion." It is true that the same express
qualification is not found in subsection 4 of article 912, yet it must be so understood, in
view of the rule of interpretation above referred to, by which the more specific is held to
control the general. Besides, this interpretation supplies the only possible means of
harmonizing the two provisions. In addition to this, article 986 of the Civil Code affords
independent proof that intestate succession to a vacant portion can only occur when
accretion is impossible.

The attorneys for the appellant direct attention to the fact that, under paragraph 4 of
article 912, intestate succession occurs when the heir instituted is disqualified to
succeed (incapaz de suceder), while, under the last provision in paragraph 2 of article
982, accretion occurs when one of the persons called to inherit under the will is
disqualified to receive the inheritance (incapaz de recibirla). A distinction is then drawn
between incapacity to succeed and incapacity to take, and it is contended that the
disability of Vicente F. Lopez was such as to bring the case under article 912 rather
than 982. We are of the opinion that the case cannot be made to turn upon so refined
an interpretation of the language of the Code, and at any rate the disability to which
Vicente F. Lopez was subject was not a general disability to succeed but an accidental
incapacity to receive the legacy, a consideration which makes a case for accretion
rather than for intestate succession.

The opinions of the commentators, so far as they have expressed themselves on the
subject, tend to the conclusion that the right of accretion with regard to portions of an
inheritance left vacant by the death or disqualification of one of the heirs or his
renunciation of the inheritance is governed by article 912, without being limited, to the
extent supposed in appellant's brief, by provisions of the Code relative to intestate
succession (Manresa, Comentarios al Codigo Civil Español, 4th ed., vol. VII, pp. 310,
311; id., 34; 13 Mucius Scaevola, pp. 372, 373, 285-287; 16 Mucius Scaevola, 186).
Says Escriche: "It is to be understood that one of the coheirs or colegatees fails if
nonexistent at the time of the making of the will, or he renounces the inheritance or
legacy, if he dies before the testator, if the condition be not fulfilled, or if he becomes
otherwise incapacitated. . . . (Diccionario de Legislacion y Jurisprudencia, vol. I, p.

In conclusion it may be worth observing that there has always existed both in the civil
and in the common law a certain legal intendment, amounting to a mild presumption,
against partial intestacy. In Roman law, as is well known, partial testacy systems a
presumption against it, — a presumption which has its basis in the supposed intention
of the testator.

The judgment appealed from will be affirmed, and it is so ordered, with costs against the

Suroza v. Honrado
110 SCRA 388


Spouses Mauro Suroza and Marcelina Salvador, who were childless, reared a boy named
Agapito. Agapito and his wife Nenita de Vera had a daughter named Lilia. Nenita
became Agapito’s guardian when he became disabled. A certain Arsenia de la Cruz also
wanted to be his guardian in another proceeding but it was dismissed. Arsenia then
delivered a child named Marilyn Sy to Marcelina who brought her up as a supposed
daughter of Agapito. Marilyn used the surname Suroza although not legally adopted by
Agapito. When Marcelina (who was an illiterate) was 73 years old, she supposedly
executed a notarial will which was in English and thumbmarked by her. In the will, she
allegedly bequeathed all her properties to Marilyn. She also named as executrix her
laundrywoman, Marina Paje. Paje filed a petition for probate of Marcelina’s will. Judge
Honrado appointed Paje as administratrix and issued orders allowing the latter to
withdraw money from the savings account of Marcelina and Marilyn, and instructing
the sheriff to eject the occupants of testatrix’s house, among whom was Nenita. She and
the other occupants filed a motion to set aside the order ejecting them, alleging that
Agapito was the sole heir of the deceased, and that Marilyn was not the decedent’s
granddaughter. Despite this, Judge Honrado issued an order probating Marcelina’s will.
Nenita filed an omnibus petition to set aside proceedings, admit opposition with
counter-petition for administration and preliminary injunction, and an opposition to
the probate of the will and a counter-petition for letters of administration, which were
dismissed by Judge Honrado. Instead of appealing, Nenita filed a case to annul the
probate proceedings but Judge Honrado dismissed it. The judge then closed the
testamentary proceeding after noting that the executrix had delivered the estate to
Marilyn, and that the estate tax had been paid.

Ten months later, Nenita filed a complaint before the SC, charging Judge Honrado with
having probated the fraudulent will of Marcelina. She reiterated her contentionthat the
testatrix was illiterate as shown by the fact that she affixed her thumbmark to the will
and that she did not know English, the language in which the will was written. She
further alleged that Judge Honrado did not take into account the consequences of the
preterition of testatrix’s son, Agapito. Judge Honrado in his comment did not deal
specifically with the allegations but merely pointed to the fact that Nenita did not appeal
from the decree of probate and that in a motion, she asked for a thirty day period within
which to vacate the house of the testatrix. Nenita subsequently filed in the CA a petition
for certiorari and prohibition against Judge Honrado wherein she prayed that the will,
the decree of probate and all the proceedings in the probate case be declared void. The
CA dismissed the petition because Nenita’s remedy was an appeal and her failure to do
so did not entitle her to resort to the special civil action of certiorari. Relying on that
decision, Judge Honrado filed a MTD the administrative case for having allegedly
become moot and academic.


W/N disciplinary action be taken against respondent judge for having admitted to
probate a will, which on its face is void because it is written in English, a language not
known to the illiterate testatrix, and which is probably a forged will because she and the
attesting witnesses did not appear before the notary as admitted by the notary himself.


YES. Respondent judge, on perusing the will and noting that it was written in English
and was thumbmarked 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”.
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

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 the 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 conductedthe hearing on the probate of the
will so that he could have ascertained whether the will was validly executed.

Matias v. Salud
L-10751, 23 June 1958


The CFI denied probate of the will of Gabina Raquel. It must be noted that
Gabina Raquel was suffering from herpes zoster that afflicted the right arm and
shoulder of the testatrix, which made writing difficult and a painful act. Thus, upon the
insistence of the attorney, Gabina attempted to sign, but since it was so painful she just
managed to thumbmarked the foot of the document and the left margin at each page.
The parties opposing the probate of the will contended that the will was void due to the
irregularities in the execution thereof.

One of the points raised by the oppositors was that the finger mark can not be regarded
as the decedent’s valid signature as it does not show distinct identifying ridgelines. And
since the finger mark was an invalid signature, there must appear in the attestation
clause that another person wrote the testator’s name at his request.


W/N the will was valid.


YES. As to the clarity of the ridge impressions, it is so dependent on

aleatory requirements as to require dexterity that can be expected of very few persons;
testators should not be required to possess the skill of trained officers.

And as to the validity of the thumbprints as signature, the SC held that it has been held
in a long line of cases that a thumbprint is always a valid and sufficient signature for the
purpose of complying with the requirement of the article.

Furthermore, the validity of thumbprints should not be limited in cases of illness or

infirmity. A thumbprint is considered as a valid and sufficient signature in complying
with the requirements of the article.

A will was executed by Antero Mercado wherein it appears that it was signed by Atty. Florentino
Javiwe who wrote the name of Antero. The testator was alleged to have written a cross
immediately after his name. The Court of First Instance found that the will was valid but the
Court of Appeals reversed the lower court’s decision holding 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. 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 witnesses signed the will in all the pages thereon in the presence of the testator and of
each other. Hence, this appeal.
Whether or not the attestation clause is valid.
The attestation clause is fatally defective for failing to state that Antero Mercado caused Atty.
Javier to write the testator’s name under his express direction, as required by section 168 of the
Code of Civil Procedure. 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, the SC is not prepared to liken the mere sign of the cross to a thumbmark and the
reason is obvious. The cross cannot and does not have the trustworthiness of a thumbmark.

Barut v. Cabacungan
21 P 461


Barut applied for the probate of the will of deceased, Maria Salomon. The testatrix
stated in the will that being unable to read or write, the will was read to her by
Ciriaco Concepcion and Timotea Inoselda and that she had instructed Severo Agayan
to sign her name to it as testatrix. The probate was contested by a number of
the relatives of the deceased on various grounds.

The probate court found that the will was not entitled to probate because “the
handwriting of the person who it is alleged signed the name of the testatrix to the will
for and on her behalf looked more like the handwriting of one of the other witnesses to
the will than to the person whose handwriting it was alleged to be” (i.e. The probate
court denied probate because the signature seemed to not have been by Severo Agayan
but by another witness).


Was the dissimilarity in handwriting sufficient to deny probate of the will?


No. The SC found that the mere dissimilarity in writing is sufficient to overcome the
uncontradicted testimony of all the witnesses that the signature of the testatrix was
written by Severo Agayan. It is also immaterial who writes the name of the testatrix
provided it is written at her request and in her presence and in the presence of all the
witnesses to the execution of the will.

Based on Section 618 of the Code of Civil Procedure, it is clear that with respect to the
validity of the will, it is unimportant whether the person who writes the name of the
testatrix signs his own or not. The important thing is that it clearly appears that the
name of the testatrix was signed at her express direction in the presence of 3 witnesses
and that they attested and subscribed it in her presence and in the presence of each
other. It may be wise that the one who signs the testator’s name signs also his own; but
that is not essential to the validity of the will.

The court also held that the 3 cases cited by the lower court was not applicable. In those
cases, the person who signed the will for the testator wrote his own name instead of the
testator’s, so that the testator’s name nowhere appeared in the will, and were thus wills
not duly executed.

Balonan vs. Abellana GR No. L-15153, August 31, 1960

Facts: A 2-page Will and Testament by the testatrix Anacleta Abellana was sought to be
probated at rhe CFI of Zamboanga City. ON the second page, which is the last page of
the Will, on the left margin appears the signature of Juan Bello under whose name
appears handwritten the following phrase 'Por la Testadora Anacleta Abellana' (for the
tetattrix Anacleta Abellana). (The CFI admitted the probate of the will. Hence, this
appeal, the petitioner contending that the signature of Juan A. Abello on top of the
phrase ‘por la tetadora Anacleta Abellana did not comply with the requirements of the
law prescribing the manner in which it ill be executed.)

ISSUE: Does the signature of Dr. Juan A. Abello above the typewritten statement "Por
la Testadora Anacleta Abellana . . ., Ciudad de Zamboanga," comply with the
requirements of the law prescribing the manner in which a will shall be executed?

HELD: 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.)

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
G.R. No. L-5971
February 27, 1911
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.
What is the true test of the testator’s or the witness’ presence in the signing of a will?
The Supreme Court emphasized 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 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.
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.
The Supreme Court, in this case, determined that all the parties were in the same small room
when each other signed. Hence, they were in each other’s presence (though the facts of the case
didn’t elaborate – the SC just ruled so). The SC ruled that if some of the witnesses were really in
the outer room (a fact which was not established according to the SC) separated by a curtain,
then the will is invalid, the attaching of those signatures under circumstances not being done “in
the presence” of the witness in the outer room.
*Citing Jaboneta v. Gustilo, the court 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.
The question is whether the testator and the subscribing witnesses to an alleged will signed 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.

Taboada vs. Rosal GR L-36033. November 5, 1982

FACTS – Petitioner Apolonio Taboada filed a petition for probate of the will of the late
Dorotea perez. The will consisted of two pages, the first page containing all the
testamentary dispositions of the testator and was signed at the end or bottom of the
page by the testatrix alone and at the left hand margin by the three instrumental
witnesses. The second page consisted of the attestation clause and the
acknowledgment was signed at the end of the attestation clause by the three witnesses
and at the left hand margin by the testatrix. The trial court disallowed the will for want of
formality in its execution because the will was signed at the bottom of the page solely by
the testatrix, while the three witnesses only signed at the left hand margin of the page.
The judge opined that compliance with the formalities of the law required that the
witnesses also sign at the end of the will because the witnesses attest not only the will
itself but the signature of the testatrix. Hence, this petition.

ISSUE – Was the object of attestation and subscription fully when the instrumental
witnesses signed at the left margin of the sole page which contains all the testamentary



On certiorari, the Supreme Court held a) that the objects of attestation and 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 a subscribing witness to be the
same will executed by the testatrix; and b) that the failure of the attestation clause to
state the number of pages used in writing the will would have been a fatal defect were it
not for the fact that it is really and actually composed of only two pages duly signed by
the testatrix and her instrumental witnesses.

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).

The signatures of the instrumental witnesses on the left margin of the first page of the
will attested not only to the genuineness of the signature of the testatrix but also the due
execution of the will as embodied in the attestation clause.

While perfection in the drafting of a will may be desirable, unsubstantial departure from
the usual forms should be ignored, especially where the authenticity of the will is not
assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).

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.

Icasiano vs. Icasiano

G.R. No. L-18979 June 30, 1964
1. Celso Icasiano, filed a petition for the probate of the will of Josefa Villacorte and
for his appointment as executor thereof. It appears from the evidence that the
testatrix died on September 12, 1958. She executed a will in Tagalog, and through the
help of her lawyer, it was prepared in duplicates, an original and a carbon copy.

2. On the day that it was subscribed and attested, the lawyer only brought the
original copy of the will while the carbon duplicate (unsigned) was left in Bulacan.
One of the witnesses failed to sign one of the pages in the original copy but admitted
he may have lifted 2 pages simultaneously instead when he signed the will.
Nevertheless, he affirmed that the will was signed by the testator and other witnesses
in his presence.

Issue: Whether or not the failure of one of the subscribing witnesses to affix his
signature to a page is sufficient to deny probate of the will

RULING: No, the failure to sign was entirely through pure oversight or mere
inadvertence. Since the duplicated bore the required signatures, this proves that the
omission was not intentional. Even if the original is in existence, a duplicate may still
be admitted to probate since the original is deemed to be defective, then in law,
there is no other will bu the duly signed carbon duplicate and the same can be

The law should not be strictly and literally interpreted as to penalize the testatrix on
account of the inadvertence of a single witness over whose conduct she has no control
of. Where the purpose of the law is to guarantee the identity of the testament and its
component pages, and there is no intentional or deliberate deviation existed.

Note that this ruling should not be taken as a departure from the rules that the will
should be signed by the witnesses on every page. The carbon copy duplicate was
regular in all respects.

Testate Estate of Cagro vs. Cagro

G.R. L-5826

1. The case is an appeal interposed by the oppositors from a decision of the CFI of
Samar which admitted to probate a will allegedly executed by Vicente Cagro who died
in Pambujan, Samar on Feb. 14, 1949.
2. The appellants insisted that the will is defective because the attestation was not
signed by the witnesses at the bottom although the page containing the same was
signed by the witnesses on the left hand margin.

3. Petitioner contended that the signatures of the 3 witnesses on the left hand margin
conform substantially to law and may be deemed as their signatures to the attestation

Issue: Whether or not the will is valid

HELD: Will is not valid. The attestation clause is a memorandum of the facts attending
the execution of the will. It is required by law to be made by the attesting witnesses
and it must necessarily bear their signatures.
An unsigned attestation clause cannot be considered as an act of the witnesses since
the omission of their signatures at the bottom negatives their participation.

Moreover, the signatures affixed on the let hand margin is not substantial
conformance to the law. The said signatures were merely in conformance with the
requirement that the will must be signed on the left-hand margin of all its pages. If
the attestation clause is unsigned by the 3 witnesses at the bottom, it would be easier
to add clauses to a will on a subsequent occasion and in the absence of the testator
and any or all of the witnesses.

The probate of the will is denied.

Abangan vs. Abangan Digest
Abangan v. Abangan


1. On September 1917, the CFI of Cebu admitted to probate Ana Abangan's will executed on
July 1916. It is from this decision which the opponent appealed. It is alleged that the records do
not show the testatrix knew the dialect in which the will was written.

Issue: Whether or not the will was validly probated

YES. The circumstance appearing on the will itself, that it was executed in Cebu City and in the
dialect of the place where the testarix is a resident is enough to presume that she knew this
dialect in the absence of any proof to the contrary. On the authority of this case and that of
Gonzales v Laurel, it seems that for the presumption to apply, the following must appear: 1)
that the will must be in a language or dialect generally spoken in the place of execution, and, 2)
that the testator must be a native or resident of the said locality

Abangan v. Abangan, 40 Phil 476, AVANCENA

On September 19, 1917, CFI of Cebu admitted to probate Ana Abangan’s will executed
July, 1916. From this decision the opponents appealed.

The will consists of 2 sheets. The first contains all the disposition of the testatrix, duly
signed at the bottom by Martin Montalban (in the name and under the direction of the
testatrix) and by three witnesses. The following sheet contains only the attestation
clause duly signed at the bottom by the three instrumental witnesses. Neither of these
sheets is signed on the left margin by the testatrix and the three witnesses, nor
numbered by letters. These omissions, according to appellants’ contention, are defects
whereby the probate of the will should have been denied.

Whether or not the will was duly admitted to probate.

YES. In requiring that each and every sheet of the will be signed on the left margin by
the testator and three witnesses in the presence of each other, Act No. 2645 evidently
has for its object the avoidance of substitution of any of said sheets which may change
the disposition of the testatrix. But when these dispositions are wholly written on only
one sheet (as in the instant case) signed at the bottom by the testator and three
witnesses, their signatures on the left margin of said sheet are not anymore necessary
as such will be purposeless.

In requiring that each and every page of a will must be numbered correlatively in letters
placed on the upper part of the sheet, it is likewise clear that the object of Act No. 2645
is to know whether any sheet of the will has been removed. But, when all the dispositive
parts of a will are written on one sheet only, the object of the statute disappears
because the removal of this single sheet, although unnumbered, cannot be hidden.

In a will consisting of two sheets the first of which contains all the testamentary
dispositions and is signed at the bottom by the testator and three witnesses and the
second contains only the attestation clause and is signed also at the bottom by the
three witnesses, it is not necessary that both sheets be further signed on their margins
by the testator and the witnesses, or be paged.

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 primordal ends. But, on the other hand, also one must not
lose sight of the fact that it is not the object of the law to restrain and curtail the exercise
of the right to make a will. So when an interpretation already given assures such ends,
any other interpretation whatsoever, that adds nothing but demands more requisites
entirely unnecessary, useless and frustative of the testator’s last will, must be

In RE Tampoy: Diosdada Alberastine, petitioner

GR L-14322, 25 February 1960 (107 Phil 100)En Banc, Bautista Angelo (p): 10
On 19 November 1939, Petronila Tampoy, a widow and without children, requested
withBonifacio Minoza to read a testament and explain its contents to her in her house in
San Miguel street,municipality of Argao, province of Cebu in 19 November 1939, which
he did in the presence of tree

instrumental witnesses, Rosario K. Chan, Mauricio de la Pena, and Simeona Omboy.

After confirmingthe contents of the testament, she requested Bonifacio Minoza to write
her name at the foot of the

testament in the second page, which he did, and after which she stamped her
thumbmark betweenher name and surname in the presence of all three instrumental
witnesses. Bonifacio Minoza alsosigned at the foot of the testament, in the second
page, in the presence of the testator and all threeabovenamed witnesses. However, the
testator, just like Bonifacio Minoza, did not sign on the leftmargin or any part of the first
page of the testament, composed of two pages. All the threeinstrumental witnesses
signed at the foot of the acknowledgment written in the second page of thetestament,
and the left margin of the first and second page, in the presence of the testator,
BonifacioMinoza, Atty. Kintanar, and the others. The testament was executed freely
and spontaneously, withouthaving been threatened, forced and intimidated, and not
having exercised on her (the testator) undue

influence, being the same in full use of her mental faculties and enjoying good
health. On 22 February1957, the testator died in here house in Argao.On 7 March
1957, or two weeks after, the heir found in the testament, Carman Aberastine
died,leaving her mother, the petitioner Diosdada Alberastine. After trial on the probate
o a documentpurportedly to be the last and testament of Petronila Rampoy, the trial
court denied the petition on

the ground that the left hand margin of the first page of the will does not bear the
thumbmark of thetestatrix. Petitioner appealed from this ruling. The Court of Appeals
certified the case to the Supreme

Court because it involves purely a question of law.

Whether the absence of the testator¶s thumbmark in the first page is fatal to render
the willvoid
Statutes prescribing the formalities to be observed in the execution of wills are very
strictlyconstrued. A will must be executed in accordance with the statutory
requirements; otherwise it isentirely void. In the present case, the contention that the
petition for probate is unopposed, and thatthe three testimonial witnesses testified and
manifested to the court that the document expresses thetrue and voluntary will of the
deceased, cannot be sustained as it runs counter to the expressprovision of the law.
Since the will suffers the fatal defect, as it does not bear the thumbmark of thetestatrix
on its first page even if it bears the signature of the three instrumental witnesses, the

fails to comply with the law and therefore cannot be admitted to probate.The Supreme
Court affirmed the appealed order, without pronouncement as to costs.

Cruz v. Villasor, G.R. L-32213 November 26, 1973

The CFI of Cebu allowed the probate of the last will and testament of the late Valenti
Cruz. However, the petitioner opposed the allowance of the will alleging that it was
executed through fraud, deceit, misrepresentation, and undue influence. He further
alleged that the instrument was executed without the testator having been informed of
its contents and finally, that it was not executed in accordance with law.

One of the witnesses, Angel Tevel Jr. was also the notary before whom the will was
acknowledged. Despite the objection, the lower court admitted the will to probate on the
ground that there is substantial compliance with the legal requirements of having at
least 3 witnesses even if the notary public was one of them.

Whether or not the will is valid in accordance with Art. 805 and 806 of the NCC

No. The will is not valid. The notary public cannot be considered as the third
instrumental witness since he cannot acknowledge before himself his having signed the
said will. An acknowledging officer cannot serve as witness at the same time.

To acknowledge before means to avow, or to own as genuine, to assent, admit, and

‘before’ means in front of or preceding in space or ahead of. The notary cannot split his
personality into two so that one will appear before the other to acknowledge his
participation int he making of the will. To permit such situation would be absurd.

Finally, the function of a notary among others is to guard against any illegal or immoral
arrangements, a function defeated if he were to be one of the attesting or instrumental
witnesses. He would be interested in sustaining the validity of the will as it directly
involves himself and the validity of his own act. he would be in an inconsistent position,
thwarting the very purpose of the acknowledgment, which is to minimize fraud.

Gabucan vs. Manta

on 12:25 PM in Case Digests, Taxation

95 SCRA 752 (1980)

o DOCUMENTARY STAMP TAX: Rule on Admissibility of Document as Evidence


This case is about the dismissal of a petition for the probate of the notarial will of the late
Rogaciano Gabucan on the ground that it does not bear a thirty-centavo documentary stamp. The
probate court refused to reconsider the dismissal in spite of petitioner’s manifestation that he had
already attached the documentary stamp to the original of the will.


W/N the probate correct was correct in dismissing the petition on the ground of failure to affix
the documentary stamp to the will


The Court held 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. The documentary stamp may be affixed at the time the
taxable document is presented in evidence.

Javellana vs. Ledesma, G.R. No. L-7179

The CFI of Iloilo admitted to probate a will and codicil executed by the deceased
Apolinaria Ledesma in July 1953. This testament was deemed executed on May 1950
and May 1952. The contestant was the sister and nearest surviving relative of the
deceased. She appealed from this decision alleging that the will were not executed in
accordance with law.

The testament was executed at the house of the testatrix. One the other hand, the
codicil was executed after the enactment of the New Civil Code (NCC), and therefore
had to be acknowledged before a notary public. Now, the contestant, who happens to
be one of the instrumental witnesses asserted that after the codicil was signed and
attested at the San Pablo hospital, that Gimotea (the notary) signed and sealed it on the
same occasion. Gimotea, however, said that he did not do so, and that the act of
signing and sealing was done afterwards.

One of the allegations was that the certificate of acknowledgement to the codicil was
signed somewhere else or in the office of the notary. The ix and the witnesses at the
hospital, was signed and sealed by the notary only when he brought it in his office.

Whether or not the signing and sealing of the will or codicil in the absence of the testator
and witnesses affects the validity of the will

No. Unlike in the Old Civil Code of 1899, the NCC does not require that the signing of
the testator, the witnesses and the notary be accomplished in one single act. All that is
required is that every will must be acknowledged before a notary public by the testator
and witnesses. The subsequent signing and sealing is not part of the acknowledgement
itself nor of the testamentary act. Their separate execution out of the presence of the
testator and the witnesses cannot be a violation of the rule that testaments should be
completed without interruption.

Assigned Case No. 39: Roxas vs. De Jesus Jr.134 SCRA 245Petitioners:
"In the matter of the intestate estate of Andres G. De Jesus and Bibiana Roxas De
Jesus,Simeon R. Roxas & Pedro Roxas De Jesus
Andres R. De Jesus, Jr.

-Pet.- Simeon R. Roxas, brother of the deceased Bibiana Roxas De Jesus, was
appointedadministrator of the Holographic Will of the deceased Bibiana Roxas De
Jesus. 26-May-1973, JudgeColayco set the probate of the holographic will. Pet.-Simeon
testified that he found a notebookbelonging to the deceased (Bibiana R. De Jesus), that
on pages 21-24, a letter-Will address to herchildren and entirely written and signed in
the handwriting of the deceased Bibiana was found. TheWill dated "FEB./61" and
states:"This is my Will which I want to be respected although it is notwritten by a
lawyer. x x x". His testimony was supported by the testimonies of Pedro R. De jesus
andManuel Roxas.-However, Respondent Luz R. Henson (another compulsory heir),
Opposed to probate the Willbecause:a. It was not executed in accordance with the
Law;b. It was executed through force, intimidation and/or under duress, undue
influence andimproper pressure, andc. the alleged testatrix (Bibiana R. De jesus) acted
by mistake and/or did not intend, nor couldhave intended the said Will to be her Last
Will and Testament at the time of its execution.-Aug 24,1973, Judge Colayco dismissed
the appeal and allow the probate of the Holographic Will ofBibiana R. De Jesus-
Respondent file a motion for reconsideration opposing that the said date "FEB./61" was
not inaccordance with Article 810 of the Civil Code which provides that in the
holographic will, it shouldprovide the Day, month, and year the will was executed.
-W/N the Date "FEB./61" appearing on the holographic will of the deceased Bibiana R.
De Jesus is avalid compliance with the Article 810 of the Civil Code.
- Yes, as a general rule, the "date" in a Holographic Will should be include the day,
month, and yearof its execution. HOWEVER, when as in the case at bar, there is no
appearance of fraud, bad faith,undue influence and pressure and the authenticity of the
Will is established and the only issue iswhether or not the date "FEB./61" is a valid
compliance with Article 810 of the Civil Code, probateof the holographic will should
be allowed under the principle of substantial compliance.- There is no question that the
holographic will of the deceased Bibiana R. de Jesus was entirelywritten, dated and
signed by her, in the language of which she known. All of her children agreed onthe
genuineness of the Holographic Will of their mother.

Labrador v. CA
184 SCRA 170


Melecio died leaving behind a parcel of land to his heirs. However, during probate
proceedings, Jesus and Gaudencio filed an opposition on the ground that the will has
been extinguished by implication of law alleging that before Melecio’s death, the land
was sold to them evidenced by TCT No. 21178. Jesus eventually sold it to Navat.
Trial court admitted the will to probate and declared the TCT null and void. However,
the CA on appeal denied probate on the ground that it was undated.


W/N the alleged holographic will is dated, as provided for in Article 810 of CC.


YES. The law does not specify a particular location where the date should be placed in
the will. The only requirements are that the date be in the will itself and executed in the
hand of the testator.

The intention to show March 17 1968 as the date of the execution is plain from the tenor
of the succeeding words of the paragraph. It states that “this being in the month of
March 17th day, in the year 1968, and this decision and or instruction of mine is the
matter to be followed. And the one who made this writing is no other than Melecio
Labrador, their father.” This clearly shows that this is a unilateral act of Melecio who
plainly knew that he was executing a will.

Kalaw v. Relova
132 SCRA 237


On September 1, 1971,Gregorio Kalaw, claiming to be the sole heir of his deceased sister,
Natividad Kalaw, filed a petition for the probate of her holographic Will executed on
December 24, 1968.

The holographic Will, as first written, named Rosa Kalaw, a sister of the testatrix as her
sole heir. She opposed probate alleging that the holographic Will contained alterations,
corrections, and insertions without the proper authentication by the full signature of the
testatrix as required by Article 814 of the Civil Code reading: Art. 814. In case of any
insertion, cancellation, erasure or alteration in a holographic will the testator must
authenticate the same by his full signature.

ROSA’s position was that the holographic Will, as first written, should be given effect
and probated so that she could be the sole heir thereunder.

Trial Court denied petition to probate the holographic will. Reconsideration denied.


W/N the original unaltered text after subsequent alterations and insertions were voided
by the Trial Court for lack of authentication by the full signature of the testatrix, should
be probated or not, with Rosa as sole heir.


Ordinarily, when a number of erasures, corrections, and interlineations made by the

testator in a holographic Will litem not been noted under his signature, … the Will is not
thereby invalidated as a whole, but at most only as respects the particular words erased,
corrected or interlined.

However, when as in this case, the holographic Will in dispute had only one substantial
provision, which was altered by substituting the original heir with another, but
which alteration did not carry the requisite of full authentication by the full signature of
the testator, the effect must be that the entire Will is voided or revoked for the simple
reason that nothing remains in the Will after that which could remain valid. To state
that the Will as first written should be given efficacy is to disregard the seeming change
of mind of the testatrix. But that change of mind can neither be given effect because she
failed to authenticate it in the manner required by law by affixing her full signature,
The ruling in Velasco, supra, must be held confined to such insertions, cancellations,
erasures or alterations in a holographic Will, which affect only the efficacy of
the altered words themselves but not the essence and validity of the Will itself. As it is,
with the erasures, cancellations and alterations made by the testatrix herein, her real
intention cannot be determined with certitude.

Gan v. Yap
104 P 509


Felicidad Yap died of a heart failure, leaving properties in Pulilan, Bulacan, and in

Fausto E. Gan, her nephew, initiated the proceedings in the Manila CFI with a petition
for the probate of a holographic will allegedly executed by the deceased.
The will was not presented because Felicidad’s husband, Ildefonso, supposedly took it.
What was presented were witness accounts of relatives who knew of her intention to
make a will and allegedly saw it as well. According to the witnesses, Felicidad did not
want her husband to know about it, but she had made known to her other relatives that
she made a will.

Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased
had not left any will, nor executed any testament during her lifetime.
After hearing the parties and considering their evidence, the Judge refused to probate
the alleged will on account of the discrepancies arising from the facts. For one thing, it is
strange that Felicidad made her will known to so many of her relatives when she wanted
to keep it a secret and she would not have carried it in her purse in the hospital, knowing
that her husband may have access to it. There was also no evidence presented that her
niece was her confidant.

In the face of these improbabilities, the trial judge had to accept the oppositor’s evidence
that Felicidad did not and could not have executed such holographic will.


1. May a holographic will be probated upon the testimony of witnesses who have
allegedly seen it and who declare that it was in the handwriting of the testator?
2. W/N Felicidad could have executed the holographic will.


1. No. The will must be presented.

The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. “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.”

This is a radical departure from the form and solemnities provided for wills under Act
190, which for fifty years (from 1901 to 1950) required wills to be subscribed by the
testator and three credible witnesses in each and every page; such witnesses to attest to
the number of sheets used and to the fact that the testator signed in their presence and
that they signed in the presence of the testator and of each other. Authenticity and due
execution is the dominant requirements to be fulfilled when such will is submitted to the
courts for allowance. For that purpose the testimony of one of the subscribing witnesses
would be sufficient if there is no opposition (Sec. 5, Rule 77). If there is, the three must
testify, if available. From the testimony of such witnesses (and of other additional
witnesses) the court may form its opinion as to the genuineness and authenticity of the
testament, and the circumstances its due execution.

With regard to holographic wills, no such guaranties of truth and veracity are
demanded, since as stated, they need no witnesses; provided however, that they are
“entirely written, dated, and signed by the hand of the testator himself.”
“In the probate of a holographic will” says the New Civil Code, “it shall be necessary that
at least one witness who knows the handwriting and signature of the testator explicitly
declare that the will and the signature are in the handwriting of the testator. If the will
is contested, at least three such witnesses shall be required. In the absence of any such
witnesses, (familiar with decedent’s handwriting) and if the court deem it necessary,
expert testimony may be resorted to.”

The witnesses need not have seen the execution of the holographic will, but they must be
familiar with the decedent’s handwriting. Obviously, when the will itself is
not submitted, these means of opposition, and of assessing the evidence are not
available. And then the only guaranty of authenticity — the testator’s handwriting — has

The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of a lost or
destroyed will by secondary — evidence the testimony of witnesses, in lieu of the original
document. Yet such Rules could not have contemplated holographic wills which could
not then be validly made here. Could Rule 77 be extended, by analogy, to holographic
wills? (NO)

Spanish commentators agree that one of the greatest objections to the holographic will
is that it may be lost or stolen — an implied admission that such loss or theft renders it

As it is universally admitted that the holographic will is usually done by the testator and
by himself alone, to prevent others from knowing either its execution or its contents, the
above article 692 could not have the idea of simply permitting such relatives to state
whether they know of the will, but whether in the face of the document itself they think
the testator wrote it. Obviously, this they can’t do unless the will itself is presented to the
Court and to them.
This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly
the basis of the Spanish Civil Code provisions on the matter.(According to the Fuero, the
will itself must be compared with specimens of the testators handwriting.)

All of which can only mean: the courts will not distribute the property of the deceased in
accordance with his holographic will, unless they are shown his handwriting and

Taking all the above circumstances together, we reach the conclusion that the execution
and the contents of a lost or destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such will.
At this point, before proceeding further, it might be convenient to explain why, unlike
holographic wills, ordinary wills may be proved by testimonial evidence when lost or
destroyed. The difference lies in the nature of the wills. In the first, the only guarantee of
authenticity is the handwriting itself; in the second, the testimony of the subscribing or
instrumental witnesses (and of the notary, now). The loss of the holographic will entails
the loss of the only medium of proof; if the ordinary will is lost, the subscribing
witnesses are available to authenticate.

In the case of ordinary wills, it is quite hard to convince three witnesses (four with the
notary) deliberately to lie. And then their lies could be checked and exposed, their
whereabouts and acts on the particular day, the likelihood that they would be called by
the testator, their intimacy with the testator, etc. And if they were intimates or trusted
friends of the testator they are not likely to end themselves to any fraudulent scheme to
distort his wishes. Last but not least, they can not receive anything on account of the

Whereas in the case of holographic wills, if oral testimony were admissible only one man
could engineer the fraud this way: after making a clever or passable imitation of the
handwriting and signature of the deceased, he may contrive to let three honest
and credible witnesses see and read the forgery; and the latter, having no interest, could
easily fall for it, and in court they would in all good faith affirm its genuineness and
authenticity. The will having been lost — the forger may have purposely destroyed it in
an “accident” — the oppositors have no way to expose the trick and the error, because
the document itself is not at hand. And considering that the holographic will may consist
of two or three pages, and only one of them need be signed, the substitution of the
unsigned pages, which may be the most important ones, may go undetected.

If testimonial evidence of holographic wills be permitted, one more objectionable

feature — feasibility of forgery — would be added to the several objections to this kind of
wills listed by Castan, Sanchez Roman and Valverde and other well-known Spanish
Commentators and teachers of Civil Law.

One more fundamental difference: in the case of a lost will, the three subscribing
witnesses would be testifying to a fact which they saw, namely the act of the testator of
subscribing the will; whereas in the case of a lost holographic will, the witnesses would
testify as to their opinion of the handwriting which they allegedly saw, an opinion which
can not be tested in court, nor directly contradicted by the oppositors, because the
handwriting itself is not at hand.

In fine, even if oral testimony were admissible to establish and probate a lost
holographic will, we think the evidence submitted by herein petitioner is so tainted with
improbabilities and inconsistencies that it fails to measure up to that “clear and distinct”
proof required by Rule 77, sec. 6.

2. No. Even if oral testimony were admissible to establish and probate a lost holographic
will, we think the evidence submitted by herein petitioner is so tainted with
improbabilities and inconsistencies that it fails to measure up to that “clear and distinct”
proof required by Rule 77, sec. 6.

Rodelas v. Aranza
119 SCRA 16


Rodelas filed a petition with the CFI of Rizal for the probate of the holographic will of
Ricardo B. Bonilla and the issuance of letters testamentary in her favor.
Aranza, et al. filed a MTD on the grounds of:

1.Rodelas was estopped from claiming that the deceased left a will by failing to produce
the will within twenty days of the death of the testator as required by Rule 75, section 2
of the Rules of Court;

2.the copy of the alleged holographic will did not contain a disposition of property after
death and was not intended to take effect after death, and therefore it was not a will, it
was merely an instruction as to the management and improvement of the schools
and colleges founded by the decedent;

3.the hollographic will itself, and not an alleged copy thereof, must be produced,
otherwise it would produce no effect because lost or destroyed holographic wills cannot
be proved by secondary evidence unlike ordinary wills.

4.the deceased did not leave any will, holographic or otherwise, executed and attested as
required by law.

MTD was denied. Aranza et al. filed an MR, Rodelas filed an opposition.

The CFI set aside its order and dismissed the petition for the probate of the will stating
that “in the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that ‘in the
matter of holographic wills the law, it is reasonable to suppose, regards the document
itself as the material proof of authenticity of said wills.”

And that the alleged holographic will was executed on January 25, 1962 while Ricardo
B. Bonilla died on May 13, 1976. The lapse of more than 14 years from the time of
the execution of the will to the death of the decedent and the fact that the original of the
will could not be located shows to that the decedent had discarded the
alleged holographic will before his death.

Rodelas filed an MR which was denied. Rodelas appealed to the CA. Aranza et al. moved
to forward the case to the SC as it involves a question of law not of fact.


W/N a holographic will which was lost or cannot be found can be proved by means of a
photostatic copy.


If the holographic will has been lost or destroyed and no other copy is available, the will
cannot be probated because the best and only evidence is the handwriting of the testator
in said will. It is necessary that there be a comparison between
sample handwritten statements of the testator and the handwritten will.

But, a photostatic copy or xerox copy of the holographic will may be allowed
because comparison can be made by the probate court with the standard writings of the
testator. The probate court would be able to determine the authenticity of the
handwriting of the testator.

In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that “the execution and the
contents of a lost or destroyed holographic will may not be proved by the bare testimony
of witnesses who have seen and/or read such will. The will itself must be presented;
otherwise, it shall produce no effect. The law regards the document itself as material
proof of authenticity.” But, in Footnote 8 of said decision, it says that “Perhaps it may be
proved by a photographic or photostatic copy. Even a mimeographed or carbon copy; or
by other similar means, if any, whereby the authenticity of the handwriting of the
deceased may be exhibited and tested before the probate court,”

Gonzales v. CA
G.R. No. L-37453 May 25, 1979
Guerrero, J. (Ponente)

1. Petitioner Rizalina Gonzales and Lutgarda Santiago (Private respondent) are the nieces
of the deceased Isabel Gabriel who died a widow. A will was thereafter submitted to
probate. The said will was typewritten, in Tagalog and appeared to have been executed
in April 1961 or two months prior to the death of Isabel. It consisted of 5 pages including
the attestation and acknowledgment, with the signature of testatrix on page 4 and the
left margin of all the pages.

2. Lutgarda was named as the universal heir and executor. The petitioner opposed the
3. The lower court denied the probate on the ground that the will was not executed and
attested in accordance with law on the issue of the competency and credibility of the

Issue: Whether or not the credibility of the subscribing witnesses is material to the
validity of a will

RULING: No. The law requires only that witnesses posses the qualifications under Art. 820
(NCC) and none of the disqualifications of Art. 802. There is no requirement that they are
of good standing or reputation in the community, for trustworthiness, honesty and
uprightness in order that his testimony is believed and accepted in court. For the
testimony to be credible, it is not mandatory that evidence be established on record that
the witnesses have good standing in the the community. Competency is distinguished
from credibility, the former being determined by Art. 820 while the latter does not
require evidence of such good standing. Credibility depends on the convincing weight of
his testimony in court.
GR No. 76464 Maloto vs CA
Facts: Adriana Maloto died leaving as heirs her niece and
nephews, the petitioners Aldina Maloto- Casiano and Constancio,
Maloto, and the private respondents Panfilo Maloto and Felino
Maloto. Believing that the deceased did not leave behind a last
will and testament, these four heirs commenced an intestate
proceeding for the settlement of their aunt’s estate. While the
case was still in progress, they executed an extrajudicial
settlement of Adriana’s estate dividing it into four equal parts
among themselves. They presented the same and successfully
gained court approval. Three years later, a document was
discovered entitled “KATAPUSAN NGA PAGBUBULAT-AN
(Testamento),” purporting to be the last will and testament of
Adriana. Malotos oppposed the probate of the Will stating among
others that the said will was revoked. Two witnesses were
presented to prove that the will was burned by Adriana herself.

Issue: Whether or not the will was validly revoked.

Held: No, the will was not validly revoked. A valid revocation
must be done with animus revocandi or the intention to revoke
coupled with an overt physical act of burning, tearing,
obliterating, or cancelling the will carried out by the testator
or by another person in his presence and under his express
direction. The document or papers burned by Adriana’s maid,
Guadalupe, was not satisfactorily established–that such was the
will of Adriana Maloto. And that the burning was not proven to
have been done under the express direction of Adriana. Also the
burning was not in her presence. Both witnesses stated that they
were the only ones present at the place where papers were
burned. The act done by the witnesses could not have constituted
a valid revocation of Adriana’s Will.

Gago vs. Mamuyac

G.R. No. L-26317 January 29, 1927
Johnson, J. (Ponente)

1. Previously, Francisco Gago filed a petition for the probate of a will of Miguel Mamuyac
executed on July 27, 1918. The oppositors alleged that the said will was already annulled
and revoked. It appeared that on April 16, 1919, the deceased executed another will. The
lower court denied the probate of the first will on the ground of the existence of the
second will.

2. Another petition was filed to seek the probate of the second will. The oppositors
alleged that the second will presented was merely a copy. According to the witnesses,
the said will was allegedly revoked as per the testimony of Jose Tenoy, one of the
witnesses who typed the document. Another witness testified that on December 1920 the
original will was actually cancelled by the testator.

3. The lower court denied the probate and held that the same has been annulled and

Issue: Whether or not there was a valid revocation of the will

RULING: Yes. The will was already cancelled in 1920. This was inferred when after due
search, the original will cannot be found. When the will which cannot be found in shown
to be in the possession of the testator when last seen, the presumption is that in the
absence of other competent evidence, the same was deemed cancelled or destroyed. The
same presumption applies when it is shown that the testator has ready access to the will
and it can no longer be found after his death.
Diaz v. De Leon
G.R. No. 17714 May 31, 1922

1. Jesus de Leon executed 2 wills, the second will was not deemed in conformance to the
requirements under the law. After executing his first will, he asked it to be immediately
returned to him. As it was returned, he instructed his servant to tear it. This was done in
the testator's presence and his nurse. After sometime, he was asked by his physician
about the incident wherein he replied that the will has already been destroyed.

Issue: Whether or not there was a valid revocation of the will

RULING: Yes. His intention to revoke is manifest from the facts that he was anxious to
withdraw or change the provisions he made in the first will. This fact was shown from his
own statements to the witnesses and the mother superior of the hospital where he was
subsequently confined. The original will which was presented for probate is deemed
destroyed hence, it cannot be probated as the last will and testament of testator.

Molo v. Molo Digest

Molo vs. Molo

G.R. No. L-2538 September 21, 1951

Bautista Angelo, J. (Ponente)

Doctrine of Dependent Relative Revocation

1. Marcos Molo executed 2 wills, one in August 1918 and another in June 1939. The
latter will contained a revocation clause which expressly revoked the will in 1918. He
died without any forced heirs but he was survived by his wife, herein petitioner Juana.
The oppositors to the probate were his nephews and nieces.

2. Only a carbon copy of the second will was found. The widow filed a petition for the
probate of the 1939 will. It was admitted to probate but subsequently set aside on ground
that the petitioner failed to prove its due execution.

3. As a result, the petitioner filed another petition for the probate of the 1918 will this
time. Again the oppositors alleged that said will had already been revoked under the 1939
will. They contended that despite the disallowance of the 1939 will, the revocation
clause is valid and thus effectively nullified the 1918 will.

Issue: Whether or not the 1918 will can still be valid despite the revocation in the
subsequent disallowed 1939 will

RULING: Yes.The court applied the doctrine laid down in Samson v. Naval that a
subsequent will,containing a clause revoking a previous will, having been disallowed for
the reason that it was not executed in accordance with law cannot produce the effect of
annulling the previous will, inasmuch as the said revocatory clause is void.
There was no valid revocation in this case. No evidence was shown that the testator
deliberately destroyed the original 1918 will because of his knowledge of the revocatory
clause contained in the will executed in 1939.The earlier will can still be probated
under the principle of dependent relative revocation.The doctrine applies when a
testator cancels or destroys a will or executes an instrument intended to revoke a will
with the intention to make a new testamentary disposition as substitute for the old,
and the new disposition fails of effect for some reason.


vs. VENICIO ESCOLIN, ET AL., respondent
56 S 266


Linnie Jane Hodges, a married woman and a citizen of Texas, USA, was a domiciliary of
the Philippines at the moment of her death. With respect to the validity
of certain testamentary provisions, she had made a will in favor of her husband. A
question arose as to what exactly were the laws of Texas on the matter at
the precise moment of her death (for while one group, contended that Texan Law should
result to renvoi, the other group contended that no renvoi was possible).


Whether or not the Texas law should apply.


The Supreme Court held that what the Texas law contains at the time of Jane Hodges’
death is a question of fact to be resolved by the evidence that would be presented in the
probate court. At the time of her death, Texas law governs, thus, it would be the law to
be applied (and not said law at any other time).

Palacios vs Ramirez
Palacios vs Ramirez


The testator instituted Wanda as the first heir, and Juan and Horacio as second heir in a fideicommissary
substitution. Juan and Horacio are strangers to Wanda.

Whether or not the fideicommissary substitution is valid.


No, becuase the second heirs are not within one degree relation ship or strangers to Wanda.

A fideicommissary substitution is void if first heir is not related in the 1st degree to the second heir.—As
regards the substitution in its fideicommissary aspect, the appellants are correct in their claim that it is
void for the following reasons: The substitutes (Juan Pablo Jankowski and Horace V. Ramirez) are not
related to Wanda, the heir originally instituted. Art 863 of the Civil Code validates a fideicommissary
substitution “provided such substitution does not go beyond one degree from the heir originally

Crisologo vs Singson
Crisologo vs Singson


Donya Leona left a will stating that upon Consolacions Crisologo's death death—whether this happens
before or after that of Donya Leona's death—Consolacion's share shall belong to the brothers of the
Donya Leona.


Whether or not such substitution is a fideicommissary substitution.


No, it is not fideicommissary substitution.

A careful perusal of the testamentary clause under consideration shows that the substitution of heirs
provided for therein is not expressly made of the o f ideicommissa kind, nor does it contain a clear
statement to the effect that appellee, during her lifetime, shall only enjoy usufructuary rights over the
property bequeathed to her, naked ownership thereof being vested in the brothers of the testatrix. As
already stated, it merely provides that upon appellee's death—whether this happens before or after that
of the testatrix—her share shall belong to the brothers of the testatrix.

Designation of heirs; Purpose of fideicommissary substitution.—It is of the essence of a fideicommissary

substitution that an obligation be clearly imposed upon the first heir to preserve and transmit to another
the whole or part of the estate bequeathed to him, upon his death or upon the happening of a particular

The last will of the deceased Dña. Leona Singson, established a mere sustitucion vulgar, the substitution
Consolacion Florentino by the brothers of the testatrix to be effective or to take place upon the death of
the former, whether it happens before or after that of the testatrix.

Miciano vs Brimo
TITLE: Juan Miciano v Andre Brimo

CITATION: GR No.22595, November 1, 1927| 50 Phil 867


Juan Miciano, judicial administrator of the estate in question, filed a scheme of partition. Andre
Brimo, one of the brothers of the deceased (Joseph Brimo) opposed Miciano’s participation in the
inheritance. Joseph Brimo is a Turkish citizen.

ISSUE: Whether Turkish law or Philippine law will be the basis on the distribution of Joseph
Brimo’s estates.


Though the last part of the second clause of the will expressly said that “it be made and disposed of
in accordance with the laws in force in the Philippine Island”, this condition, described as impossible
conditions, shall be considered as not imposed and shall not prejudice the heir or legatee in any
manner whatsoever, even should the testator otherwise provide. Impossible conditions are further
defined as those contrary to law or good morals. Thus, national law of the testator shall govern in his
testamentary dispositions.

The court approved the scheme of partition submitted by the judicial administrator, in such manner
as to include Andre Brimo, as one of the legatees.


18 SCRA 47


Rosalina Santos filed a for the probate of the last will allegedly executed by the deceased Maxima
Santos Vda. de Blas. The nearest of kin of the deceased were her brothers and a sister, nephews and
nieces. Rosalinda Santos, is one of said nieces. Among devisees mentioned in the will is Flora Blas de
Buenaventura. She is not related by blood to the deceased. However, Flora Blas de Buenaventura and
Justo Garcia filed an opposition to the probate of said will. After the probate court had received the
evidence for both the petitioner and oppositors, but before the latter could close their evidence, Flora Blas
filed a manifestation that she is withdrawing her opposition to the probate of the will, however, the
proceedings continued however as to the opposition of Justo Garcia.

Thereafter the court issued an order allowing the probate of the will. After the order had become
final and executory, Flora Blas filed a petition praying for the delivery to her of a fishpond as a specific
devise in her.

To this petition, inspite of apparent understanding, Rosalina Santos filed an opposition

predicated on the ground that said specific devise in favor of Flora was forfeited in favor of the other
residuary heirs, pursuant to a provision of the will that should any of the heirs, devisees or legatees
contest or oppose its probate, the latter shall lose his or her right to receive any inheritance or benefit
under it, which shall be forfeited in favor of the other heirs, devisees and legatees.


Whether or not Flora’s actuations amount to the violation of the “no contest and forfeiture” clause
of the will.


No. From the foregoing premises it cannot be said that Flora's actuations impaired the true
intention of the testatrix in regard to the "no-contest and forfeiture" clause of the will. Flora's act of
withdrawing her opposition before she had rested her case contributed to the speedy probation of the will.
Since the withdrawal came before Flora had rested her case, it precluded the defeat of the probate upon
the strength of Flora's evidence. Through said withdrawal, Flora conformed to the testatrix's wish that her
dispositions of her properties under the will be carried out. It follows that, taken as a whole, Flora's
actuations subserved rather than violated the testatrix's intention.