THIRD DIVISION In their Answer with Counterclaim, the defendants declared that In the responsive pleading filed by them
responsive pleading filed by them on this Court's
G.R. No. 110427 February 24, 1997
The Incompetent, CARMEN CAÑIZA, represented by her legal
guardian, AMPARO EVANGELISTA, petitioner,
vs. COURT OF APPEALS (SPECIAL FIRST DIVISION), PEDRO
ESTRADA and his wife, LEONORA ESTRADA, respondents.
NARVASA, C.J.:
On November 20, 1989, being then ninety-four (94) years of
age, Carmen Cañiza, a spinster, a retired pharmacist, and former
professor of the College of Chemistry and Pharmacy of the
University of the Philippines, was declared incompetent by
judgment1 of the Regional Trial Court of Quezon City, Branch
107,2 in a guardianship proceeding instituted by her niece,
Amparo A. Evangelista.3 She was so adjudged because of her
advanced age and physical infirmities which included cataracts
in both eyes and senile dementia. Amparo A. Evangelista was
appointed legal guardian of her person and estate.
Cañiza was the owner of a house and lot at No. 61 Tobias St.,
Quezon City. On September 17, 1990, her guardian Amparo
Evangelista commenced a suit in the Metropolitan Trial Court
(MetroTC) of Quezon City (Branch 35) to eject the spouses
Pedro and Leonora Estrada from said premises.4 The complaint
was later amended to identify the incompetent Cañiza as
plaintiff, suing through her legal guardian, Amparo Evangelista.
The amended Complaint5 pertinently alleged that plaintiff
Cañiza was the absolute owner of the property in question,
covered by TCT No. 27147; that out of kindness, she had
allowed the Estrada Spouses, their children, grandchildren and
sons-in-law to temporarily reside in her house, rent-free; that
Cañiza already had urgent need of the house on account of her
advanced age and failing health, "so funds could be raised to
meet her expenses for support, maintenance and medical
treatment;" that through her guardian, Cañiza had asked the
Estradas verbally and in writing to vacate the house but they
had refused to do so; and that "by the defendants' act of
unlawfully depriving plaintiff of the possession of the house in
question, they . . (were) enriching themselves at the expense of
the incompetent, because, while they . . (were) saving money by
not paying any rent for the house, the incompetent . . (was)
losing much money as her house could not be rented by others."
Also alleged was that the complaint was "filed within one (1)
year from the date of of first letter of demand dated February 3,
1990."
they had been living in Cañiza's house since the 1960's; that in
consideration of their faithful service they had been considered
by Cañiza as her own family, and the latter had in fact executed
a holographic will on September 4, 1988 by which she
"bequeathed" to the Estradas the house and lot in question.
Judgment was rendered by the MetroTC on April 13, 1992 in
Cañiza's favor,6 the Estradas being ordered to vacate the
premises and pay Cañiza P5,000.00 by way of attorney's fees.
But on appeal,8 the decision was reversed by the Quezon City
Regional Trial Court, Branch 96.9 By judgment rendered on
October 21, 1992, 10 the RTC held that the "action by which the
issue of defendants' possession should be resolved is accion
publiciana, the obtaining factual and legal situation . .
demanding adjudication by such plenary action for recovery of
possession cognizable in the first instance by the Regional Trial
Court."
Cañiza sought to have the Court of Appeals reverse the decision
of October 21, 1992, but failed in that attempt. In a
decision 11 promulgated on June 2, 1993, the Appellate
Court 12 affirmed the RTC's judgment in toto. It ruled that (a) the
proper remedy for Cañiza was indeed an accion publiciana in the
RTC, not an accion interdictal in the MetroTC, since the
"defendants have not been in the subject premises as mere
tenants or occupants by tolerance, they have been there as a
sort of adopted family of Carmen Cañiza," as evidenced by what
purports to be the holographic will of the plaintiff; and (b) while
"said will, unless and until it has passed probate by the proper
court, could not be the basis of defendants' claim to the
property, . . it is indicative of intent and desire on the part of
Carmen Cañiza that defendants are to remain and are to
continue in their occupancy and possession, so much so that
Cañiza's supervening incompetency can not be said to have
vested in her guardian the right or authority to drive the
defendants out." 13
Through her guardian, Cañiza came to this Court praying for
reversal of the Appellate Court's judgment. She contends in the
main that the latter erred in (a) holding that she should have
pursued an accion publiciana, and not an accion interdictal; and
in (b) giving much weight to "a xerox copy of an alleged
holographic will, which is irrelevant to this case." 14
requirement, 15 the Estradas insist that the case against them
was really not one of unlawful detainer; they argue that since
possession of the house had not been obtained by them by any
"contract, express or implied," as contemplated by Section 1,
Rule 70 of the Rules of Court, their occupancy of the premises 1
could not be deemed one "terminable upon mere demand (and
hence never became unlawful) within the context of the law."
Neither could the suit against them be deemed one of forcible
entry, they add, because they had been occupying the property
with the prior consent of the "real owner," Carmen Cañiza,
which "occupancy can even ripen into full ownership once the
holographic will of petitioner Carmen Cañiza is admitted to
probate." They conclude, on those postulates, that it is beyond
the power of Cañiza's legal guardian to oust them from the
disputed premises.
Carmen Cañiza died on March 19, 1994, 16 and her heirs — the
aforementioned guardian, Amparo Evangelista, and Ramon C.
Nevado, her niece and nephew, respectively — were by this
Court's leave, substituted for her. 17
Three issues have to be resolved: (a) whether or not an
ejectment action is the appropriate judicial remedy for recovery
of possession of the property in dispute; (b)
assuming desahucio to be proper, whether or not Evangelista, as
Cañiza's legal guardian had authority to bring said action; and (c)
assuming an affirmative answer to both questions, whether or
not Evangelista may continue to represent Cañiza after the
latter's death.
I
It is axiomatic that what determines the nature of an action as
well as which court has jurisdiction over it, are the allegations of
the complaint and the character of the relief sought. 18 An
inquiry into the averments of the amended complaint in the
Court of origin is thus in order. 19
The amended Complaint alleges: 20
6. That the plaintiff Carmen Cañiza, is the sole and absolute
owner of a house and lot at No. 61 Scout Tobias, Quezon City,
which property is now the subject of this complaint;
xxx xxx xxx
9. That the defendants, their children, grandchildren and sons-
in-law, were allowed to live temporarily in the house
of plaintiff Carmen Cañiza, for free, out of her kindness;
10. That the plaintiff, through her legal guardian, has duly
notified the defendants, for them to vacate the said house, but
the two (2) letters of demand were ignored and the defendants
refused to vacate the same. . .
11. That the plaintiff, represented by her legal guardian, Amparo
Evangelista, made another demand on the defendants for them
to vacate the premises, before Barangay Captain Angelina A.
Diaz of Barangay Laging Handa, Quezon City, but after two (2)
conferences, the result was negative and no settlement was
reached. A photocopy of the Certification to File Action dated
July 4, 1990, issued by said Barangay Captain is attached,
marked Annex "D" and made an integral part hereof;
12. That the plaintiff has given the defendants more than thirty
(30) days to vacate the house, but they still refused to vacate
the premises, and they are up to this time residing in the said
place;
13. That this complaint is filed within one (1) year from the date
of first letter of demand dated February 3, 1990 (Annex "B")
sent by the plaintiff to the defendants, by her legal guardian —
Amparo Evangelista;
14. By the defendants' act of unlawfully depriving the plaintiff of
the possession of the house in question, they are enriching
themselves at the expense of the incompetent plaintiff because,
while they are saving money by not paying any rent for the
house, the plaintiff is losing much money as her house could not
be rented by others;
15. That the plaintiff's health is failing and she needs the house
urgently, so that funds could be raised to meet her expenses for
her support, maintenance and medical treatment;
16. That because of defendants' refusal to vacate the house at
No. 61 Scout Tobias, Quezon City, the plaintiff, through her legal
guardian, was compelled to go to court for justice, and she has
to spend P10,000.00 as attorney's fees.
Its prayer 21 is quoted below:
WHEREFORE, in the interest of justice and the rule of
law, plaintiff, Carmen Cañiza, represented by her legal guardian,
Amparo Evangelista, respectfully prays to this Honorable Court,
to render judgment in favor of plaintiff and against the
defendants as follows:
1. To order the defendants, their children, grandchildren, sons-
in-law and other persons claiming under them, to vacate the
house and premises at No. 6 1 Scout Tobias, Quezon City, so
that its possession can be restored to the plaintiff Carmen
Cañiza; and
2. To pay attorney's fees in the amount of P10,000.00;
3. To pay the costs of the suit.
In essence, the amended complaint states:
1) that the Estradas were occupying Cañiza's house by tolerance
— having been "allowed to live temporarily . . (therein) for free,
out of . . (Cañiza's) kindness;"
2) that Cañiza needed the house "urgently" because her "health
. . (was) failing and she . . (needed) funds . . to meet her
expenses for her support, maintenance and medical treatment;"
3) that through her general guardian, Cañiza requested the
Estradas several times, orally and in writing, to give back
possession of the house;
4) that the Estradas refused and continue to refuse to give back
the house to Cañiza, to her continuing prejudice; and
5) that the action was filed within one (1) year from the last
demand to vacate.
Undoubtedly, a cause of action for desahucio has been
adequately set out. It is settled that in an action for unlawful
detainer, it suffices to allege that the defendant is unlawfully
withholding possession from the plaintiff is deemed
sufficient, 22 and a complaint for unlawful detainer is sufficient if
it alleges that the withholding of possession or the refusal to
vacate is unlawful without necessarily employing the
terminology of the law. 23
The Estradas' first proffered defense derives from a literal
construction of Section 1, Rule 70 of the Rules of Court
which inter alia authorizes the institution of an unlawful
detainer suit when "the possession of any land or building is
unlawfully withheld after the expiration or termination of the
right to hold possession, by virtue of any contract, express or
implied." They contend that since they did not acquire
possession of the property in question "by virtue of any contract,
express or implied" — they having been, to repeat, "allowed to 2
live temporarily . . (therein) for free, out of . . (Cañiza's)
kindness" — in no sense could there be an "expiration or
termination of . . (their) right to hold possession, by virtue of any
contract, express or implied." Nor would an action for forcible
entry lie against them, since there is no claim that they had
"deprived (Cañiza) of the possession of . . (her property) by
force, intimidation, threat, strategy, or stealth.
The argument is arrant sophistry. Cañiza's act of allowing the
Estradas to occupy her house, rent-free, did not create a
permanent and indefeasible right of possession in the latter's
favor. Common sense, and the most rudimentary sense of
fairness clearly require that that act of liberality be implicitly, but
no less certainly, accompanied by the necessary burden on the
Estradas of returning the house to Cañiza upon her demand.
More than once has this Court adjudged that a person who
occupies the land of another at the latter's tolerance or
permission without any contract between them is necessarily
bound by an implied promise that he will vacate upon demand,
failing which a summary action for ejectment is the proper
remedy against him. 24 The situation is not much different from
that of a tenant whose lease expires but who continues in
occupancy by tolerance of the owner, in which case there is
deemed to be an unlawful deprivation or withholding of
possession as of the date of the demand to vacate. 25 In other
words, one whose stay is merely tolerated becomes a deforciant
illegally occupying the land or property the moment he is
required to leave. 26 Thus, in Asset Privatization Trust vs. Court of
Appeals, 27 where a company, having lawfully obtained
possession of a plant upon its undertaking to buy the same,
refused to return it after failing to fulfill its promise of payment
despite demands, this Court held that "(a)fter demand and its
repudiation, . . (its) continuing possession . . became illegal and
the complaint for unlawful detainer filed by the
. . (plant's owner) was its proper remedy.
It may not be amiss to point out in this connection that where
there had been more than one demand to vacate, the one-year
period for filing the complaint for unlawful detainer must be
reckoned from the date of the last demand, 28 the reason being
that the lessor has the option to waive his right of action based
on previous demands and let the lessee remain meanwhile in
the premises. 29 Now, the complaint filed by Cañiza's guardian
alleges that the same was "filed within one (1) year from the
date of the first letter of demand dated February 3, 1990."
Although this averment is not in accord with law because there
is in fact a second letter of demand to vacate, dated February
27, 1990, the mistake is inconsequential, since the complaint
was actually filed on September 17, 1990, well within one year
from the second (last) written demand to vacate.
The Estradas' possession of the house stemmed from the
owner's express permission. That permission was subsequently
withdrawn by the owner, as was her right; and it is immaterial
that the withdrawal was made through her judicial guardian, the
latter being indisputably clothed with authority to do so. Nor is it
of any consequence that Carmen Cañiza had executed a will
bequeathing the disputed property to the Estradas; that
circumstance did not give them the right to stay in the premises
after demand to vacate on the theory that they might in future
become owners thereof, that right of ownership being at best
inchoate, no transfer of ownership being possible unless and
until the will is duly probated.
Thus, at the time of the institution of the action of desahucio,
the Estradas had no legal right to the property, whether as
possessors by tolerance or sufferance, or as owners. They could
not claim the right of possession by sufferance; that had been
legally ended. They could not assert any right of possession
flowing from their ownership of the house; their status as
owners is dependent on the probate of the holographic will by
which the property had allegedly been bequeathed to them —
an event which still has to take place; in other words, prior to
the probate of the will, any assertion of possession by them
would be premature and inefficacious.
In any case, the only issue that could legitimately be raised
under the circumstances was that involving the Estradas'
possession by tolerance, i.e., possession de facto, not de jure. It
is therefore incorrect to postulate that the proper remedy for
Cañiza is not ejectment but accion publiciana, a plenary action in
the RTC or an action that is one for recovery of the right to
possession de jure.
II
The Estradas insist that the devise of the house to them by
Cañiza clearly denotes her intention that they remain in
possession thereof, and legally incapacitated her judicial
guardian, Amparo Evangelista, from evicting them therefrom,
since their ouster would be inconsistent with the ward's will.
A will is essentially ambulatory; at any time prior to the
testator's death, it may be changed or revoked; 30 and until
admitted to probate, it has no effect whatever and no right can
be claimed thereunder, the law being quite explicit: "No will
shall pass either real or personal property unless it is proved and
allowed in accordance with the Rules of Court" (ART.
838, id.). 31 An owner's intention to confer title in the future to
persons possessing property by his tolerance, is not inconsistent
with the former's taking back possession in the meantime for
any reason deemed sufficient. And that in this case there was
sufficient cause for the owner's resumption of possession is
apparent: she needed to generate income from the house on
account of the physical infirmities afflicting her, arising from her
extreme age.
Amparo Evangelista was appointed by a competent court the
general guardian of both the person and the estate of her aunt,
Carmen Cañiza. Her Letters of Guardianship 32 dated December
19, 1989 clearly installed her as the "guardian over the person
and properties of the incompetent CARMEN CANIZA with full
authority to take possession of the property of said incompetent
in any province or provinces in which it may be situated and to
perform all other acts necessary for the management of her
properties . . " 33 By that appointment, it became Evangelista's
duty to care for her aunt's person, to attend to her physical and
spiritual needs, to assure her well-being, with right to custody of
her person in preference to relatives and friends. 34 It also
became her right and duty to get possession of, and exercise
control over, Cañiza's property, both real and personal, it being
recognized principle that the ward has no right to possession or
control of his property during her incompetency. 35 That right to
manage the ward's estate carries with it the right to take
possession thereof and recover it from anyone who retains
it, 36 and bring and defend such actions as may be needful for
this purpose. 37
Actually, in bringing the action of desahucio, Evangelista was
merely discharging the duty to attend to "the comfortable and
suitable maintenance of the ward" explicitly imposed on her by
Section 4, Rule 96 of the Rules of Court, viz.:
Sec. 4. Estate to be managed frugally, and proceeds applied to 3
maintenance of ward. — A guardian must manage the estate of
his ward frugally and without waste, and apply the income and
profits thereof, so far as maybe necessary, to the comfortable
and suitable maintenance of the ward and his family, if there be
any; and if such income and profits be insufficient for that
purpose, the guardian may sell or encumber the real estate,
upon being authorized by order to do so, and apply to such of
the proceeds as may be necessary to such maintenance.
Finally, it may be pointed out in relation to the Estradas's
defenses in the ejectment action, that as the law now stands,
even when, in forcible entry and unlawful detainer cases, the
defendant raises the question of ownership in his pleadings and
the question of possession cannot be resolved without deciding
the issue of ownership, the Metropolitan Trial Courts, Municipal
Trial Courts, and Municipal Circuit Trial Courts nevertheless have
the undoubted competence to resolve "the issue of ownership .
. only to determine the issue of possession." 38
III
As already stated, Carmen Cañiza passed away during the
pendency of this appeal. The Estradas thereupon moved to
dismiss the petition, arguing that Cañiza's death automatically
terminated the guardianship, Amaparo Evangelista lost all
authority as her judicial guardian, and ceased to have legal
personality to represent her in the present appeal. The motion is
without merit.
While it is indeed well-established rule that the relationship of
guardian and ward is necessarily terminated by the death of
either the guardian or the ward, 39 the rule affords no advantage
to the Estradas. Amparo Evangelista, as niece of Carmen Cañiza,
is one of the latter's only two (2) surviving heirs, the other being
Cañiza's nephew, Ramon C. Nevado. On their motion and by
Resolution of this Court 40 of June 20, 1994, they were in fact
substituted as parties in the appeal at bar in place of the
deceased, in accordance with Section 17, Rule 3 of the Rules of
Court, viz.: 41
Sec. 18. Death of a party. — After a party dies and the claim is
not thereby extinguished, the court shall order, upon proper
notice, the legal representative of the deceased to appear and
be substituted for the deceased within a period of thirty (30)
days, or within such time as may be granted. If the legal
representative fails to appear within said time, the court may
order the opposing party to procure the appointment of a legal
representative of the deceased within a time to be specified by
the court, and the representative shall immediately appear for
and on behalf of the interest of the deceased. The court charges
involved in procuring such appointment, if defrayed by the
opposing party, may be recovered as costs. The heirs of the
deceased may be allowed to be substituted for the deceased,
without requiring the appointment of an executor or
administrator and the court may appoint guardian ad litem for
the minor heirs.
To be sure, an ejectment case survives the death of a party.
Cañiza's demise did not extinguish the desahucio suit instituted
by her through her guardian. 42 That action, not being a purely
personal one, survived her death; her heirs have taken her place
and now represent her interests in the appeal at bar.
WHEREFORE, the petition is GRANTED. The Decision of the
Court of Appeals promulgated on June 2, 1993 — affirming the
Regional Trial Court's judgment and dismissing petitioner's
petition for certiorari — is REVERSED and SET ASIDE, and the
Decision dated April 13, 1992 of the Metropolitan Trial Court of
Quezon City, Branch 35, in Civil Case No. 3410 is REINSTATED
and AFFIRMED. Costs against private respondents.
SO ORDERED.
EN BANC
G.R. No. L-23445 June 23, 1966
REMEDIOS NUGUID, petitioner and appellant,
vs. FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and
appellees.
SANCHEZ, J.:
Rosario Nuguid, a resident of Quezon City, died on December
30, 1962, single, without descendants, legitimate or illegitimate.
Surviving her were her legitimate parents, Felix Nuguid and Paz
Salonga Nuguid, and six (6) brothers and sisters, namely:
Alfredo, Federico, Remedios, Conrado, Lourdes and Alberto, all
surnamed Nuguid.
On May 18, 1963, petitioner Remedios Nuguid filed in the Court
of First Instance of Rizal a holographic will allegedly executed by
Rosario Nuguid on November 17, 1951, some 11 years before
her demise. Petitioner prayed that said will be admitted to
probate and that letters of administration with the will annexed
be issued to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid,
concededly the legitimate father and mother of the deceased
Rosario Nuguid, entered their opposition to the probate of her
will. Ground therefor, inter alia, is that by the institution of
petitioner Remedios Nuguid as universal heir of the deceased,
oppositors — who are compulsory heirs of the deceased in the
direct ascending line — were illegally preterited and that in
consequence the institution is void.
On August 29, 1963, before a hearing was had on the petition
for probate and objection thereto, oppositors moved to dismiss
on the ground of absolute preterition.
On September 6, 1963, petitioner registered her opposition to
the motion to dismiss.
The court's order of November 8, 1963, held that "the will in
question is a complete nullity and will perforce create intestacy
of the estate of the deceased Rosario Nuguid" and dismissed the
petition without costs.
A motion to reconsider having been thwarted below, petitioner
came to this Court on appeal.
1. Right at the outset, a procedural aspect has engaged our
attention. The case is for the probate of a will. The court's area
of inquiry is limited — to an examination of, and resolution on,
the extrinsic validity of the will. The due execution thereof, the
testatrix's testamentary capacity, and the compliance with the
requisites or solemnities by law prescribed, are the
questions solely to be presented, and to be acted upon, by the
court. Said court at this stage of the proceedings — is not called
upon to rule on the intrinsic validity or efficacy of the provisions
of the will, the legality of any devise or legacy therein.1
A peculiar situation is here thrust upon us. The parties shunted
aside the question of whether or not the will should be allowed
probate. For them, the meat of the case is the intrinsic validity
of the will. Normally, this comes only after the court has
declared that the will has been duly authenticated.2 But
petitioner and oppositors, in the court below and here on
appeal, travelled on the issue of law, to wit: Is the will
intrinsically a nullity?
We pause to reflect. If the case were to be remanded for
probate of the will, nothing will be gained. On the contrary, this
litigation will be protracted. And for aught that appears in the 4
record, in the event of probate or if the court rejects the will,
probability exists that the case will come up once again before
us on the same issue of the intrinsic validity or nullity of the will.
Result: waste of time, effort, expense, plus added anxiety. These
are the practical considerations that induce us to a belief that
we might as well meet head-on the issue of the validity of the
provisions of the will in question.3 After all, there exists a
justiciable controversy crying for solution.
2. Petitioner's sole assignment of error challenges the
correctness of the conclusion below that the will is a complete
nullity. This exacts from us a study of the disputed will and the
applicable statute.
Reproduced hereunder is the will:
Nov. 17, 1951
I, ROSARIO NUGUID, being of sound and disposing mind and
memory, having amassed a certain amount of property, do
hereby give, devise, and bequeath all of the property which I
may have when I die to my beloved sister Remedios Nuguid, age
34, residing with me at 38-B Iriga, Q.C. In witness whereof, I
have signed my name this seventh day of November, nineteen
hundred and fifty-one.
(Sgd.) Illegible
T/ ROSARIO NUGUID
The statute we are called upon to apply in Article 854 of the Civil
Code which, in part, provides:
ART. 854. The preterition or omission of one, some, or all of the
compulsory heirs in the direct line, whether living at the time of
the execution of the will or born after the death of the testator,
shall annul the institution of heir; but the devises and legacies
shall be valid insofar as they are not inofficious. ...
Except for inconsequential variation in terms, the foregoing is a
reproduction of Article 814 of the Civil Code of Spain of 1889,
which is similarly herein copied, thus —
Art. 814. The preterition of one or all of the forced heirs in the
direct line, whether living at the time of the execution of the will
or born after the death of the testator, shall void the institution
of heir; but the legacies and betterments4 shall be valid, in so far
as they are not inofficious. ...
A comprehensive understanding of the
term preterition employed in the law becomes a necessity. On
this point Manresa comments:
La pretericion consiste en omitar al heredero en el testamento.
O no se le nombra siquiera o aun nombrandole como padre,
hijo, etc., no se le instituya heredero ni se le deshereda
expresamente ni se le asigna parte alguna de los bienes,
resultando privado de un modo tacito de su derecho a legitima.
Para que exista pretericion, con arreglo al articulo 814, basta
que en el testamento omita el testador a uno cualquiera de
aquellos a quienes por su muerte corresponda la herencia
forzosa.
Se necesita, pues, a) Que la omision se refiera a un heredero
forzoso. b) Que la omision sea completa; que el heredero
forzoso nada reciba en el testamento.
It may now appear trite bat nonetheless helpful in giving us a
clear perspective of the problem before us, to have on hand a
clear-cut definition of the word annul:
To "annul" means to abrogate, to make void ... In re Morrow's
Estate, 54 A. 342, 343, 204 Pa. 484.6
The word "annul" as used in statute requiring court to annul
alimony provisions of divorce decree upon wife's remarriage
means to reduce to nothing; to annihilate; obliterate; blot out;
to make void or of no effect; to nullify; to abolish. N.J.S.A. 2:50
— 38 (now N.J.S. 2A:34-35). Madden vs. Madden, 40 A. 2d 611,
614, 136 N..J Eq. 132.7
ANNUL. To reduce to nothing; annihilate; obliterate; to make
void or of no effect; to nullify; to abolish; to do away with. Ex
parte Mitchell, 123 W. Va. 283, 14 S.E. 2d. 771, 774.8
And now, back to the facts and the law. The deceased Rosario
Nuguid left no descendants, legitimate or illegitimate. But she
left forced heirs in the direct ascending line her parents, now
oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will
completely omits both of them: They thus received nothing by
the testament; tacitly, they were deprived of their legitime;
neither were they expressly disinherited. This is a clear case of
preterition. Such preterition in the words of Manresa "anulara
siempre la institucion de heredero, dando caracter absoluto a
este ordenamiento referring to the mandate of Article 814, now
854 of the Civil Code.9 The one-sentence will here institutes
petitioner as the sole, universal heir — nothing more. No
specific legacies or bequests are therein provided for. It is in this
posture that we say that the nullity is complete. Perforce,
Rosario Nuguid died intestate. Says Manresa:
En cuanto a la institucion de heredero, se anula. Lo que se anula
deja de existir, en todo o en parte? No se añade limitacion
alguna, como en el articulo 851, en el que se expresa que se
anulara la institucion de heredero en cuanto prejudique a la
legitima del deseheredado Debe, pues, entenderse que la
anulacion es completa o total, y que este articulo como especial
en el caso que le motiva rige con preferencia al 817. 10
The same view is expressed by Sanchez Roman: —
La consecuencia de la anulacion o nulidad de la institucion de
heredero por pretericion de uno, varios o todos los forzosos en
linea recta, es la apertura de la sucesion intestada total o
parcial. Sera total, cuando el testador que comete la pretericion,
hubiese dispuesto de todos los bienes por titulo universal de
herencia en favor de los herederos instituidos, cuya institucion
se anula, porque asi lo exige la generalidad del precepto legal
del art. 814, al determinar, como efecto de la pretericion, el de
que "anulara la institucion de heredero." ... 11
Really, as we analyze the word annul employed in the statute,
there is no escaping the conclusion that the universal institution
of petitioner to the entire inheritance results in totally
abrogating the will. Because, the nullification of such institution
of universal heir — without any other testamentary disposition
in the will — amounts to a declaration that nothing at all was
written. Carefully worded and in clear terms, Article 854 offers
no leeway for inferential interpretation. Giving it an expansive
meaning will tear up by the roots the fabric of the statute. On
this point, Sanchez Roman cites the "Memoria annual del
Tribunal Supreme, correspondiente a 1908", which in our
opinion expresses the rule of interpretation, viz:
... El art. 814, que preceptua en tales casos de pretericion la
nulidad de la institucion de heredero, no consiente
interpretacion alguna favorable a la persona instituida en el
sentido antes expuesto aun cuando parezca, y en algun caso
pudiera ser, mas o menos equitativa, porque una nulidad no
significa en Derecho sino la suposicion de que el hecho o el acto
no se ha realizado, debiendo por lo tanto procederse sobre tal
base o supuesto, y consiguientemente, en un testamento donde 5
falte la institucion, es obligado llamar a los herederos forzosos
en todo caso, como habria que llamar a los de otra clase,
cuando el testador no hubiese distribudo todos sus bienes en
legados, siendo tanto mas obligada esta consecuencia legal
cuanto que, en materia de testamentos, sabido es, segun tiene
declarado la jurisprudencia, con repeticion, que no basta que
sea conocida la voluntad de quien testa si esta voluntad no
aparece en la forma y en las condiciones que la ley ha exigido
para que sea valido y eficaz, por lo que constituiria una
interpretacion arbitraria, dentro del derecho positivo, reputar
como legatario a un heredero cuya institucion fuese anulada con
pretexto de que esto se acomodaba mejor a la voluntad del
testador, pues aun cuando asi fuese, sera esto razon para
modificar la ley, pero no autoriza a una interpretacion contraria
a sus terminos y a los principios que informan la
testamentifaccion, pues no porque parezca mejor una cosa en el
terreno del Derecho constituyente, hay razon para convereste
juicio en regla de interpretacion, desvirtuando y anulando por
este procedimiento lo que el legislador quiere establecer. 12
3. We should not be led astray by the statement in Article 854
that, annullment notwithstanding, "the devises and legacies
shall be valid insofar as they are not inofficious". Legacies and
devises merit consideration only when they are so expressly
given as such in a will. Nothing in Article 854 suggests that
the mere institution of a universal heir in a will — void because
of preterition — would give the heir so instituted a share in the
inheritance. As to him, the will is inexistent. There must be, in
addition to such institution, a testamentary disposition granting
him bequests or legacies apart and separate from the nullified
institution of heir. Sanchez Roman, speaking of the two
component parts of Article 814, now 854, states that preterition
annuls the institution of the heir "totalmente por la pretericion";
but added (in reference to legacies and bequests) "pero
subsistiendo ... todas aquellas otras disposiciones que no se
refieren a la institucion de heredero ... . 13 As Manresa puts it,
annulment throws open to intestate succession the entire
inheritance including "la porcion libre (que) no hubiese
dispuesto en virtud de legado, mejora o donacion. 14
As aforesaid, there is no other provision in the will before us
except the institution of petitioner as universal heir. That
institution, by itself, is null and void. And, intestate succession
ensues.
4. Petitioner's mainstay is that the present is "a case of
ineffective disinheritance rather than one of
preterition". 15 From this, petitioner draws the conclusion that
Article 854 "does not apply to the case at bar". This argument
fails to appreciate the distinction between pretention and
disinheritance.
Preterition "consists in the omission in the testator's will of the
forced heirs or anyone of them, either because they are not
mentioned therein, or, though mentioned, they are neither
instituted as heirs nor are expressly
disinherited." 16 Disinheritance, in turn, "is
a testamentary disposition depriving any compulsory heir of his
share in the legitime for a cause authorized by law. " 17 In
Manresa's own words: "La privacion expresa de la legitima
constituye la desheredacion. La privacion tacita de la misma se
denomina pretericion." 18 Sanchez Roman emphasizes the
distinction by stating that disinheritance "es
siempre voluntaria"; preterition, upon the other hand, is
presumed to be "involuntaria". 19 Express as disinheritance
should be, the same must be supported by a legal cause
specified in the will itself. 20
The will here does not explicitly disinherit the testatrix's parents,
the forced heirs. It simply omits their names altogether. Said will
rather than be labeled ineffective disinheritance is clearly one in
which the said forced heirs suffer from preterition.
On top of this is the fact that the effects flowing from preterition
are totally different from those of disinheritance. Preterition
under Article 854 of the Civil Code, we repeat, "shall annul the
institution of heir". This annulment is in toto, unless in the will
there are, in addition, testamentary dispositions in the form of
devises or legacies. In ineffective disinheritance under Article
918 of the same Code, such disinheritance shall also "annul the
institution of heirs", put only "insofar as it may prejudice the
person disinherited", which last phrase was omitted in the case
of preterition. 21 Better stated yet, in disinheritance the nullity
is limited to that portion of the estate of which the disinherited
heirs have been illegally deprived. Manresa's expressive
language, in commenting on the rights of the preterited heirs in
the case of preterition on the one hand and legal disinheritance
on the other, runs thus: "Preteridos, adquiren el derecho a
todo; desheredados, solo les corresponde un tercio o dos
tercios, 22 el caso. 23
5. Petitioner insists that the compulsory heirs ineffectively
disinherited are entitled to receive their legitimes, but that the
institution of heir "is not invalidated," although the inheritance
of the heir so instituted is reduced to the extent of said
legitimes. 24
This is best answered by a reference to the opinion of Mr. Chief
Justice Moran in the Neri case heretofore cited, viz:
But the theory is advanced that the bequest made by universal
title in favor of the children by the second marriage should be
treated as legado and mejora and, accordingly, it must not be
entirely annulled but merely reduced. This theory, if adopted,
will result in a complete abrogation of Articles 814 and 851 of
the Civil Code. If every case of institution of heirs may be made
to fall into the concept of legacies and betterments reducing the
bequest accordingly, then the provisions of Articles 814 and 851
regarding total or partial nullity of the institution, would. be
absolutely meaningless and will never have any application at
all. And the remaining provisions contained in said article
concerning the reduction of inofficious legacies or betterments
would be a surplusage because they would be absorbed by
Article 817. Thus, instead of construing, we would be destroying
integral provisions of the Civil Code.
The destructive effect of the theory thus advanced is due mainly
to a failure to distinguish institution of heirs from legacies and
betterments, and a general from a special provision. With
reference to article 814, which is the only provision material to
the disposition of this case, it must be observed that the
institution of heirs is therein dealt with as a thing separate and
distinct from legacies or betterments. And they are separate and
distinct not only because they are distinctly and separately
treated in said article but because they are in themselves
different. Institution of heirs is a bequest by universal title of
property that is undetermined. Legacy refers to specific
property bequeathed by a particular or special title. ... But again
an institution of heirs cannot be taken as a legacy. 25”
The disputed order, we observe, declares the will in question "a
complete nullity". Article 854 of the Civil Code in turn merely
nullifies "the institution of heir". Considering, however, that the
will before us solely provides for the institution of petitioner as
universal heir, and nothing more, the result is the same. The
entire will is null.
Upon the view we take of this case, the order of November 8,
1963 under review is hereby affirmed. No costs allowed. So 6
ordered.
THIRD DIVISION
G.R. No. 157451 December 16, 2005
LETICIA VALMONTE ORTEGA, Petitioner,
vs. JOSEFINA C. VALMONTE, Respondent.
DECISION
PANGANIBAN, J.:
The law favors the probate of a will. Upon those who oppose it
rests the burden of showing why it should not be allowed. In the
present case, petitioner has failed to discharge this burden
satisfactorily. For this reason, the Court cannot attribute any
reversible error on the part of the appellate tribunal that
allowed the probate of the will.
The Case
Before the Court is a Petition for Review1 under Rule 45 of the
Rules of Court, seeking to reverse and set aside the December
12, 2002 Decision2 and the March 7, 2003 Resolution3 of the
Court of Appeals (CA) in CA-GR CV No. 44296. The assailed
Decision disposed as follows:
"WHEREFORE, the appeal is GRANTED, and the Decision
appealed from is REVERSED and SET ASIDE. In its place judgment
is rendered approving and allowing probate to the said last will
and testament of Placido Valmonte and ordering the issuance of
letters testamentary to the petitioner Josefina Valmonte. Let
this case be remanded to the court a quo for further and
concomitant proceedings."4
The assailed Resolution denied petitioner’s Motion for
Reconsideration.
The Facts
The facts were summarized in the assailed Decision of the CA, as
follows:
"x x x: Like so many others before him, Placido toiled and lived
for a long time in the United States until he finally reached
retirement. In 1980, Placido finally came home to stay in the
Philippines, and he lived in the house and lot located at #9200
Catmon St., San Antonio Village, Makati, which he owned in
common with his sister Ciriaca Valmonte and titled in their
names in TCT 123468. Two years after his arrival from the
United States and at the age of 80 he wed Josefina who was
then 28 years old, in a ceremony solemnized by Judge Perfecto
Laguio, Jr. on February 5, 1982. But in a little more than two
years of wedded bliss, Placido died on October 8, 1984 of a
cause written down as COR PULMONALE.
"Placido executed a notarial last will and testament written in
English and consisting of two (2) pages, and dated June 15, 1983
but acknowledged only on August 9, 1983. The first page
contains the entire testamentary dispositions and a part of the
attestation clause, and was signed at the end or bottom of that
page by the testator and on the left hand margin by the three
instrumental witnesses. The second page contains the
continuation of the attestation clause and the acknowledgment,
and was signed by the witnesses at the end of the attestation
clause and again on the left hand margin. It provides in the body
that:
‘LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN THE
NAME OF THE LORD AMEN:
‘I, PLACIDO VALMONTE, of legal age, married to Josefina
Cabansag Valmonte, and a resident of 9200 Catmon Street,
Makati, Metro Manila, 83 years of age and being of sound and
disposing mind and memory, do hereby declare this to be my
last will and testament:
1. It is my will that I be buried in the Catholic Cemetery, under
the auspices of the Catholic Church in accordance with the rites
and said Church and that a suitable monument to be erected
and provided my by executrix (wife) to perpetuate my memory
in the minds of my family and friends;
2. I give, devise and bequeath unto my loving wife, JOSEFINA C.
VALMONTE, one half (1/2) portion of the follow-described
properties, which belongs to me as [co-owner]:
a. Lot 4-A, Block 13 described on plan Psd-28575, LRC, (GLRO),
situated in Makati, Metro Manila, described and covered by TCT
No. 123468 of the Register of Deeds of Pasig, Metro-Manila
registered jointly as co-owners with my deceased sister (Ciriaca
Valmonte), having share and share alike;
b. 2-storey building standing on the above-described property,
made of strong and mixed materials used as my residence and
my wife and located at No. 9200 Catmon Street, Makati, Metro
Manila also covered by Tax Declaration No. A-025-00482,
Makati, Metro-Manila, jointly in the name of my deceased sister,
Ciriaca Valmonte and myself as co-owners, share and share alike
or equal co-owners thereof;
3. All the rest, residue and remainder of my real and personal
properties, including my savings account bank book in USA
which is in the possession of my nephew, and all others
whatsoever and wherever found, I give, devise and bequeath to
my said wife, Josefina C. Valmonte;
4. I hereby appoint my wife, Josefina C. Valmonte as sole
executrix of my last will and testament, and it is my will that said
executrix be exempt from filing a bond;
IN WITNESS WHEREOF, I have hereunto set my hand this 15th
day of June 1983 in Quezon City, Philippines.’
"The allowance to probate of this will was opposed by Leticia on
the grounds that:
1. Petitioner failed to allege all assets of the testator, especially
those found in the USA;
2. Petitioner failed to state the names, ages, and residences of
the heirs of the testator; or to give them proper notice pursuant
to law;
3. Will was not executed and attested as required by law and
legal solemnities and formalities were not complied with;
4. Testator was mentally incapable to make a will at the time of
the alleged execution he being in an advance sate of senility;
5. Will was executed under duress, or the influence of fear or
threats;
6. Will was procured by undue and improper influence and
pressure on the part of the petitioner and/or her agents and/or
assistants; and/or
7. Signature of testator was procured by fraud, or trick, and he
did not intend that the instrument should be his will at the time
of affixing his signature thereto;’
and she also opposed the appointment as Executrix of Josefina
alleging her want of understanding and integrity.
"At the hearing, the petitioner Josefina testified and called as
witnesses the notary public Atty. Floro Sarmiento who prepared
and notarized the will, and the instrumental witnesses spouses
Eugenio Gomez, Jr. and Feliza Gomez and Josie Collado. For the
opposition, the oppositor Leticia and her daughter Mary Jane
Ortega testified.
"According to Josefina after her marriage with the testator they
lived in her parents house at Salingcob, Bacnotan, La Union but
they came to Manila every month to get his $366.00 monthly
pension and stayed at the said Makati residence. There were
times though when to shave off on expenses, the testator would
travel alone. And it was in one of his travels by his lonesome self
when the notarial will was made. The will was witnessed by the
spouses Eugenio and Feliza Gomez, who were their wedding
sponsors, and by Josie Collado. Josefina said she had no
knowledge of the existence of the last will and testament of her
husband, but just serendipitously found it in his attache case
after his death. It was only then that she learned that the
testator bequeathed to her his properties and she was named 7
the executrix in the said will. To her estimate, the value of
property both real and personal left by the testator is worth
more or less P100,000.00. Josefina declared too that the
testator never suffered mental infirmity because despite his old
age he went alone to the market which is two to three
kilometers from their home cooked and cleaned the kitchen and
sometimes if she could not accompany him, even traveled to
Manila alone to claim his monthly pension. Josefina also asserts
that her husband was in good health and that he was
hospitalized only because of a cold but which eventually
resulted in his death.
"Notary Public Floro Sarmiento, the notary public who notarized
the testator’s will, testified that it was in the first week of June
1983 when the testator together with the three witnesses of the
will went to his house cum law office and requested him to
prepare his last will and testament. After the testator instructed
him on the terms and dispositions he wanted on the will, the
notary public told them to come back on June 15, 1983 to give
him time to prepare it. After he had prepared the will the notary
public kept it safely hidden and locked in his drawer. The
testator and his witnesses returned on the appointed date but
the notary public was out of town so they were instructed by his
wife to come back on August 9, 1983, and which they did.
Before the testator and his witnesses signed the prepared will,
the notary public explained to them each and every term
thereof in Ilocano, a dialect which the testator spoke and
understood. He likewise explained that though it appears that
the will was signed by the testator and his witnesses on June 15,
1983, the day when it should have been executed had he not
gone out of town, the formal execution was actually on August
9, 1983. He reasoned that he no longer changed the typewritten
date of June 15, 1983 because he did not like the document to
appear dirty. The notary public also testified that to his
observation the testator was physically and mentally capable at
the time he affixed his signature on the will.
"The attesting witnesses to the will corroborated the testimony
of the notary public, and testified that the testator went alone
to the house of spouses Eugenio and Feliza Gomez at GSIS
Village, Quezon City and requested them to accompany him to
the house of Atty. Floro Sarmiento purposely for his intended
will; that after giving his instructions to Atty. Floro Sarmiento,
they were told to return on June 15, 1983; that they returned on
June 15, 1983 for the execution of the will but were asked to
come back instead on August 9, 1983 because of the absence of
the notary public; that the testator executed the will in question
in their presence while he was of sound and disposing mind and
that he was strong and in good health; that the contents of the
will was explained by the notary public in the Ilocano and
Tagalog dialect and that all of them as witnesses attested and
signed the will in the presence of the testator and of each other.
And that during the execution, the testator’s wife, Josefina was
not with them.
"The oppositor Leticia declared that Josefina should not inherit
alone because aside from her there are other children from the
siblings of Placido who are just as entitled to inherit from him.
She attacked the mental capacity of the testator, declaring that
at the time of the execution of the notarial will the testator was
already 83 years old and was no longer of sound mind. She knew
whereof she spoke because in 1983 Placido lived in the Makati
residence and asked Leticia’s family to live with him and they
took care of him. During that time, the testator’s physical and
mental condition showed deterioration, aberrations and senility.
This was corroborated by her daughter Mary Jane Ortega for
whom Placido took a fancy and wanted to marry.
"Sifting through the evidence, the court a quo held that [t]he
evidence adduced, reduces the opposition to two grounds,
namely:
1. Non-compliance with the legal solemnities and formalities in
the execution and attestation of the will; and
2. Mental incapacity of the testator at the time of the execution
of the will as he was then in an advanced state of senility
"It then found these grounds extant and proven, and accordingly
disallowed probate."5
Ruling of the Court of Appeals
Reversing the trial court, the appellate court admitted the will of
Placido Valmonte to probate. The CA upheld the credibility of
the notary public and the subscribing witnesses who had
acknowledged the due execution of the will. Moreover, it held
that the testator had testamentary capacity at the time of the
execution of the will. It added that his "sexual exhibitionism and
unhygienic, crude and impolite ways"6 did not make him a
person of unsound mind.
Hence, this Petition.7
Issues
Petitioner raises the following issues for our consideration:
"I.
Whether or not the findings of the probate court are entitled to
great respect.
"II.
Whether or not the signature of Placido Valmonte in the subject
will was procured by fraud or trickery, and that Placido
Valmonte never intended that the instrument should be his last
will and testament.
"III.
Whether or not Placido Valmonte has testamentary capacity at
the time he allegedly executed the subject will."8
In short, petitioner assails the CA’s allowance of the probate of
the will of Placido Valmonte.
This Court’s Ruling
The Petition has no merit.
Main Issue:
Probate of a Will
At the outset, we stress that only questions of law may be raised
in a Petition for Review under Section 1 of Rule 45 of the Rules
of Court. As an exception, however, the evidence presented
during the trial may be examined and the factual matters
resolved by this Court when, as in the instant case, the findings
of fact of the appellate court differ from those of the trial court.9
The fact that public policy favors the probate of a will does not
necessarily mean that every will presented for probate should
be allowed. The law lays down the procedures and requisites
that must be satisfied for the probate of a will.10 Verily, Article
839 of the Civil Code states the instances when a will may be
disallowed, as follows:
"Article 839. The will shall be disallowed in any of the following
cases:
(1) If the formalities required by law have not been complied
with;
(2) If the testator was insane, or otherwise mentally incapable of
making a will, at the time of its execution;
(3) If it was executed through force or under duress, or the
influence of fear, or threats;
(4) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary or of some other
person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that the
instrument he signed should be his will at the time of affixing his
signature thereto."
In the present case, petitioner assails the validity of Placido
Valmonte’s will by imputing fraud in its execution and
challenging the testator’s state of mind at the time.
Existence of Fraud in them Execution of a Will
Petitioner does not dispute the due observance of the 8
formalities in the execution of the will, but maintains that the
circumstances surrounding it are indicative of the existence of
fraud. Particularly, she alleges that respondent, who is the
testator’s wife and sole beneficiary, conspired with the notary
public and the three attesting witnesses in deceiving Placido to
sign it. Deception is allegedly reflected in the varying dates of
the execution and the attestation of the will.
Petitioner contends that it was "highly dubious for a woman at
the prime of her young life [to] almost immediately plunge into
marriage with a man who [was] thrice her age x x x and who
happened to be [a] Fil-American pensionado,"11 thus casting
doubt on the intention of respondent in seeking the probate of
the will. Moreover, it supposedly "defies human reason, logic
and common experience"12 for an old man with a severe
psychological condition to have willingly signed a last will and
testament.
We are not convinced. Fraud "is a trick, secret device, false
statement, or pretense, by which the subject of it is cheated. It
may be of such character that the testator is misled or deceived
as to the nature or contents of the document which he
executes, or it may relate to some extrinsic fact, in consequence
of the deception regarding which the testator is led to make a
certain will which, but for the fraud, he would not have made."13
We stress that the party challenging the will bears the burden of
proving the existence of fraud at the time of its execution.14 The
burden to show otherwise shifts to the proponent of the will
only upon a showing of credible evidence of
fraud.15 Unfortunately in this case, other than the self-serving
allegations of petitioner, no evidence of fraud was ever
presented.
It is a settled doctrine that the omission of some relatives does
not affect the due execution of a will.16 That the testator was
tricked into signing it was not sufficiently established by the fact
that he had instituted his wife, who was more than fifty years his
junior, as the sole beneficiary; and disregarded petitioner and
her family, who were the ones who had taken "the cudgels of
taking care of [the testator] in his twilight years."17
Moreover, as correctly ruled by the appellate court, the conflict
between the dates appearing on the will does not invalidate the
document, "because the law does not even require that a
[notarial] will x x x be executed and acknowledged on the same
occasion."18 More important, the will must be subscribed by the
testator, as well as by three or more credible witnesses who
must also attest to it in the presence of the testator and of one
another.19 Furthermore, the testator and the witnesses must
acknowledge the will before a notary public.20 In any event, we
agree with the CA that "the variance in the dates of the will as to
its supposed execution and attestation was satisfactorily and
persuasively explained by the notary public and the instrumental
witnesses."21
The pertinent transcript of stenographic notes taken on June 11,
1985, November 25, 1985, October 13, 1986, and October 21,
1987 -- as quoted by the CA -- are reproduced respectively as
follows:
"Atty. Floro Sarmiento:
Q You typed this document exhibit C, specifying the date June
15 when the testator and his witnesses were supposed to be in
your office?
A Yes sir.
Q On June 15, 1983, did the testator and his witnesses come to
your house?
A They did as of agreement but unfortunately, I was out of town.
xxxxxxxxx
Q The document has been acknowledged on August 9, 1983 as
per acknowledgement appearing therein. Was this the actual
date when the document was acknowledged?
A Yes sir.
Q What about the date when the testator and the three
witnesses affixed their respective signature on the first and
second pages of exhibit C?
A On that particular date when it was acknowledged, August 9,
1983.
Q Why did you not make the necessary correction on the date
appearing on the body of the document as well as the
attestation clause?
A Because I do not like anymore to make some alterations so I
put it in my own handwriting August 9, 1983 on the
acknowledgement. (tsn, June 11, 1985, pp. 8-10)
Eugenio Gomez:
Q It appears on the first page Mr. Witness that it is dated June
15, 1983, whereas in the acknowledgement it is dated August 9,
1983, will you look at this document and tell us this discrepancy
in the date?
A We went to Atty. Sarmiento together with Placido Valmonte
and the two witnesses; that was first week of June and Atty.
Sarmiento told us to return on the 15th of June but when we
returned, Atty. Sarmiento was not there.
Q When you did not find Atty. Sarmiento on June 15, 1983, did
you again go back?
A We returned on the 9th of August and there we signed.
Q This August 9, 1983 where you said it is there where you
signed, who were your companions?
A The two witnesses, me and Placido Valmonte. (tsn, November
25, 1985, pp. 7-8)
Felisa Gomez on cross-examination:
Q Why did you have to go to the office of Atty. Floro Sarmiento,
three times?
xxxxxxxxx
A The reason why we went there three times is that, the first
week of June was out first time. We went there to talk to Atty.
Sarmiento and Placido Valmonte about the last will and
testament. After that what they have talked what will be placed
in the testament, what Atty. Sarmiento said was that he will go
back on the 15th of June. When we returned on June 15, Atty.
Sarmiento was not there so we were not able to sign it, the will.
That is why, for the third time we went there on August 9 and
that was the time we affixed our signature. (tsn, October 13,
1986, pp. 4-6)
Josie Collado:
Q When you did not find Atty. Sarmiento in his house on June
15, 1983, what transpired?
A The wife of Atty. Sarmiento told us that we will be back on
August 9, 1983.
Q And on August 9, 1983 did you go back to the house of Atty.
Sarmiento?
A Yes, Sir.
Q For what purpose?
A Our purpose is just to sign the will.
Q Were you able to sign the will you mentioned?
A Yes sir. (tsn, October 21, 1987, pp. 4-5)"22
Notably, petitioner failed to substantiate her claim of a "grand
conspiracy" in the commission of a fraud. There was no showing
that the witnesses of the proponent stood to receive any benefit
from the allowance of the will. The testimonies of the three
subscribing witnesses and the notary are credible evidence of its
due execution.23 Their testimony favoring it and the finding that
it was executed in accordance with the formalities required by
law should be affirmed, absent any showing of ill motives.24
Capacity to Make a Will
In determining the capacity of the testator to make a will, the
Civil Code gives the following guidelines:
"Article 798. In order to make a will it is essential that the 9
testator be of sound mind at the time of its execution.
"Article 799. To be of sound mind, it is not necessary that the
testator be in full possession of all his reasoning faculties, or that
his mind be wholly unbroken, unimpaired, or shattered by
disease, injury or other cause.
"It shall be sufficient if the testator was able at the time of
making the will to know the nature of the estate to be disposed
of, the proper objects of his bounty, and the character of the
testamentary act.
"Article 800. The law presumes that every person is of sound
mind, in the absence of proof to the contrary.
"The burden of proof that the testator was not of sound mind at
the time of making his dispositions is on the person who
opposes the probate of the will; but if the testator, one month,
or less, before making his will was publicly known to be insane,
the person who maintains the validity of the will must prove
that the testator made it during a lucid interval."
According to Article 799, the three things that the testator must
have the ability to know to be considered of sound mind are as
follows: (1) the nature of the estate to be disposed of, (2) the
proper objects of the testator’s bounty, and (3) the character of
the testamentary act. Applying this test to the present case, we
find that the appellate court was correct in holding that Placido
had testamentary capacity at the time of the execution of his
will.
It must be noted that despite his advanced age, he was still able
to identify accurately the kinds of property he owned, the extent
of his shares in them and even their locations. As regards the
proper objects of his bounty, it was sufficient that he identified
his wife as sole beneficiary. As we have stated earlier, the
omission of some relatives from the will did not affect its formal
validity. There being no showing of fraud in its execution, intent
in its disposition becomes irrelevant.
Worth reiterating in determining soundness of mind is Alsua-
Betts v. CA,25 which held thus:
"Between the highest degree of soundness of mind and memory
which unquestionably carries with it full testamentary capacity,
and that degrees of mental aberration generally known as
insanity or idiocy, there are numberless degrees of mental
capacity or incapacity and while on one hand it has been held
that mere weakness of mind, or partial imbecility from disease
of body, or from age, will not render a person incapable of
making a will; a weak or feebleminded person may make a valid
will, provided he has understanding and memory sufficient to
enable him to know what he is about to do and how or to whom
he is disposing of his property. To constitute a sound and
disposing mind, it is not necessary that the mind be unbroken or
unimpaired or unshattered by disease or otherwise. It has been
held that testamentary incapacity does not necessarily require
that a person shall actually be insane or of unsound mind."26
WHEREFORE, the Petition is DENIED, and the assailed Decision
and Resolution of the Court of Appeals are AFFIRMED. Costs
against petitioner.
SO ORDERED.
EN BANC
G.R. No. L-35993 December 19, 1932
In re Estate of the deceased Gregorio Tolentino. ADELAIDA
TOLENTINO, petitioner-appellee,
vs. NATALIA FRANCISCO, ET AL., oppositors-appellants.
STREET, J.:
This petition was filed in the Court of First Instance of Manila by
Adelaida Tolentino de Concepcion, for the purpose of procuring
probate of the will of Gregorio Tolentino, deceased, who died at
the hand of an assassin, in his home, No. 2541 Lico Street, in the
District of Santa Cruz, Manila, on November 9, 1930. In the
inception of the proceedings Eugene de Mitkiewicz was
appointed special coadministrator, and he joined as coplaintiff in
the petition. Opposition was made to the probate of the will by
Ciriaco Francisco, Natalia Francisco, and Gervasia Francisco, all
cousins of the deceased and residents of the City of Manila.
Upon hearing the cause the trial court overruled the opposition,
declared the will to have been properly executed, and allowed
the probate thereof. From this order the three opponents
appealed.
At the time of his death on November 9, 1930, Gregorio
Tolentino was sixty-six years of age. During the more vigorous
years of his life he had been married to Benita Francisco, but she
predeceased him years ago. By their industry and frugality the
two had accumulated a very considerable estate which does not
appear to have suffered any material diminution in the years of
Tolentino's widowhood. The pair had no children, and the
generous instincts of the survivor prompted him to gather
around him in his comfortable and commodious home a number
of his wife's kin; and by him various younger members of the
connection were supported and educated. At one time
Tolentino contemplated leaving his property mainly to these kin
of his wife, of the surname Francisco; and for several years prior
to his death, he had kept a will indicating this desire. However,
in October, 1930, strained relations, resulting from grave
disagreements, developed between Tolentino and the Francisco
relations and he determined to make a new will in which, apart
from certain legacies in favor of a few individuals, the bulk of his
estate, worth probably about P150,000, should be given to
Adelaida Tolentino de Concepcion, as his universal heir.
To this end, on October 17, 1930, Tolentino went to the office of
Eduardo Gutierrez Repide, an attorney at 97 General Luna,
Manila, and informed him that he wanted to make a new will
and desired Repide to draft it for him. After the necessary
preliminary inquiries had been made, the attorney suggested to
Tolentino to return later, bringing a copy of the will previously
made. Accordingly, on the second day thereafter, Tolentino
again appeared in Repide's office with the prior will; and the
attorney proceeded to reduce the new will to proper form. As
the instrument was taking shape Tolentino stated that he
wanted the will to be signed in Repide's office, with Repide
himself as one of the attesting witnesses. For the other two
witnesses Tolentino requested that two attorneys attached to
the office, namely, Leoncio B. Monzon and Ramon L. Sunico,
should serve. For this reason, in the draft of the will, as it at first
stood, the names of the three above mentioned were inserted
as the names of the three attesting witnesses.
When the instrument had been reduced to proper form it was
placed in the hands of Tolentino, the testator, in order that he
might take it home to reflect over its provisions and consider
whether it conformed in all respects to his wishes. On the
morning of October 21 he again appeared in Repide's office and
returned to him the draft of the will with certain corrections.
Among the changes thus made was the suppression of the
names of Monzon, Sunico, and Repide as attesting witnesses,
these names being substituted by the names of Jose Syyap,
Agustin Vergel de Dios, and Vicente Legarda. The explanation
given by the testator for desiring this change was that he had
met Jose Syyap on the Escolta, the day before, and had
committed the indiscretion of communicating the fact that he
(Tolentino) was having a new will made in which Monzon,
Sunico, and Repide would appear as the attesting witnesses.
Now Syyap had been the draftsman of the former will of
Tolentino, and in this same will the name of Syyap appeared as
one of the attesting witnesses, the other two being Vicente
Legarda and Vergel de Dios. When, therefore, Syyap learned
that a new will was being drawn up without his intervention, he 10
showed profound disappointment, saying to Tolentino that he
considered it a gross offense that he, Legarda, and Vergel de
Dios should be eliminated as witnesses to the new will. Upon
this manifestation of feeling by Syyap, Tolentino decided to avail
himself of Syyap, Legarda, and Vergel de Dios as witnesses to
this will also, and he therefore requested Repide to change the
names of the attesting witnesses. After this point had been
settled Tolentino stated that he would request Syyap, Legarda,
and Vergel de Dios to appear at the office of Repide for the
purpose of signing the will. To this end Tolentino went away but
returned later saying that he had spoken to Syyap about it and
that the latter strenuously objected, observing that the will
should be signed at a chop-suey restaurant ( panciteria).
Tolentino further stated to his attorney in this conversation that
he had arranged with Syyap and the other two intending
witnesses to meet at five o'clock in the afternoon of the next
day, which was October 22, for the purpose of executing the
will.
Pursuant to these instructions Repide made the desired changes
in the will; and just before twelve o'clock noon of the next day
Tolentino returned to Repide's office and received from him the
criminal document with a carbon copy thereof. Repide advised
the testator that the copy should be executed with the same
formality as the original in order that the intention of the
testator should not be frustrated by the possible loss or
destruction of the original.lawphil.net
It is a custom in the office of Repide not to number the
consecutive pages of a will, on the typewriting machine, the
duty of numbering the pages being left to the testator himself.
This precaution appears to have been born of experience, and
has been adopted by Repide to prevent the possible destruction
of a will by the mere erasure of the figures or letters indicating
the pagination, — a disaster which, in Repide's experience, had
occurred in at least one case. Accordingly, upon delivering the
completed will and carbon copy to the testator, Repide took
particular pains to instruct the testator to write the consecutive
paging of both original and duplicate before signing the
instrument.
At his interview the testator suggested to Repide that the latter
should also go to the place where the will was to be executed,
so that he might be present at the formality. The attorney
replied that it was impossible for him to do so as he had another
engagement for the hour indicated, which would prevent his
attendance.
At about 4:30 p. m. on the same day, which was October 22,
Tolentino started in his car to pick up Syyap and Vergel de Dios
at their respective homes on Antipolo and Benavides streets. He
then caused his chauffeur to drive with the three to La Previsora
Filipina, on Rizal Avenue, where Vicente Legarda, the third
intending witness was to be found. Arriving at this place, the
three entered the office of Legarda, who was manager of the
establishment, and they were invited to take seats, which they
did. Tolentino then suggested that the three should go as his
guests to a panciteria, where they could take refreshments and
the will could be executed. Legarda replied that he must decline
the invitation for he had an engagement to go to the Cosmos
Club the same afternoon. Upon this Tolentino asked Legarda to
permit the will to be signed in his office, and to this request
Legarda acceded.
Tolentino thereupon drew two documents from his pocket
saving that it was his last will and testament, done in duplicate,
and he proceeded to read the original to the witnesses. After
this had been completed, Legarda himself took the will in hand
and read it himself. He then returned it to Tolentino, who
thereupon proceeded, with pen and ink, to number the pages of
the will thus, "Pagina Primera", "Pagina Segunda", etc. He then
paged the duplicate copy of the will in the same way. He next
proceeded to sign the original will and each of its pages by
writing his name "G. Tolentino" in the proper places. Following
this, each of the three witnesses signed their own respective
names at the end of the will, at the end of the attesting clause,
and in the left margin of each page of the instrument. During
this ceremony all of the persons concerned in the act of
attestation were present together, and all fully advertent to the
solemnity that engaged their attention.
After the original of the will had been executed in the manner
just stated, the testator expressed his desire that the duplicate
should be executed in the same manner. To this Syyap objected,
on the ground that it was unnecessary; and in this view he was
supported by Vergel de Dios, with the result that the wishes of
the testator on this point could not be carried out. As the party
was about to break up Tolentino used these words: "For God's
sake, as a favor, I request you not to let any one know the
contents of this will." The meeting then broke up and Tolentino
returned Syyap and Vergel de Dios to their homes in his car. He
then proceeded to the law office of Repide, arriving about 6:15
p. m. After preliminary explanations had been made, Tolentino
requested Repide to keep the will overnight in his safe, as it was
already too late to place it in the compartment which Tolentino
was then renting in the Oriental Safe Deposit, in the Kneedler
Building. In this connection the testator stated that he did not
wish to take the will to his home, as he knew that his relatives
were watching him and would take advantage of any
carelessness on his part to pry into his papers. Also, in this
conversation Tolentino informed Repide of the refusal of Syyap
to execute the duplicate of the will.
After a good part of an hour had thus been spent at Repide's
office by the testator and after the original of the will had been
deposited in Repide's safe, Tolentino took the attorney to the
latter's residence in Ermita, and then returned to his own home,
where he remained without again going out that night. But
promptly at nine o'clock the next morning Tolentino presented
himself at Repide's office for the purpose of securing the will.
Repide happened to be out and Tolentino went away, but again
returned the next day and received the will. With the instrument
thus in his possession he proceeded at once to the Oriental Safe
Deposit and there left the instrument in his private
compartment, No. 333, in which place it remained until
withdrawn some two weeks later by order of the court.
On the morning of November 9, 1930, Gregorio Tolentino was
found dead in his bed, having perished by the hands of an
assassin.
The peculiarity of this case is that, upon the trial of this
proceeding for the probate of the will of the decedent, two of
the attesting witnesses, Jose Syyap and Vergel de Dios,
repudiated their participation in the execution of the will at the
time and place stated; and while admitting the genuineness of
their signatures to the will, pretended that they had severally
signed the instrument, at the request of the testator, at
different places. Thus Syyap, testifying as a witness, claimed that
the testator brought the will to Syyap's house on the afternoon
of October 21 — a time, be it remembered, when the will had
not yet left the hands of the draftsman — and upon learning
that Syyap could not be present at the time and place then
being arranged for the execution of the will, he requested
Syyap, as a mere matter of complaisance, to sign the will then,
which Syyap did. Vergel de Dios has another story to tell of
isolated action, claiming that he signed the will in the evening of
October 22 at the Hospital of San Juan de Dios in Intramuros.
We are unable to give any credence to the testimony of these
two witnesses on this point, the same being an evident 11
fabrication designed for the purpose of defeating the will. In the
first place, the affirmative proof showing that the will was
properly executed is adequate, consistent, and convincing,
consisting of the testimony of the third attesting witness,
Vicente Legarda, corroborated by Miguel Legarda and Urbana
Rivera, two disinterested individuals, employees of La Previsora
Filipina, who were present in Legarda's office when the will was
executed and who lent a discerning attention to what was being
done. In the second place, each of the seven signatures affixed
to his will by Syyap appear to the natural eye to have been made
by using the same pen and ink that was used by Legarda in
signing the will. The same is also probably true of the seven
signatures made by Vergel de Dios. This could hardly have
happened if the signatures of Syyap and Vergel de Dios had
been affixed, as they now pretend, at different times and places.
In the third place, Both Syyap and Vergel de Dios are impeached
by proof of contradictory statements made by them on different
occasions prior to their appearance as witnesses in this case. In
this connection we note that, after the murder of Gregorio
Tolentino, and while the police authorities were investigating his
death, Nemesio Alferez, a detective, sent for Syyap and
questioned him concerning his relations with the deceased.
Upon this occasion Syyap stated that Gregorio Tolentino had
lately made a will, that it had been executed at the office of La
Previsora Filipina under the circumstances already stated, and
that he himself had served as one of the attesting witnesses.
With respect to Vergel de Dios we have the following fact: On
the day that Gregorio Tolentino was buried, Ramon Llorente, a
member of the city police force, was sent out to the cemetery in
order that he might be present and observe the demeanor on
that occasion of such Tolentino's kin as might be present.
Llorente arrived before the funeral cortege, having been taken
out to the cemetery by Repide. While the two were waiting at
the cemetery, Llorente noted the presence of Vergel de Dios, he
requested the policeman to introduce him. In the conversation
that ensued Vergel de Dios stated with considerable detail that
Gregorio Tolentino had made a will just before his death, that it
was executed at La Previsora Filipina, and that he was one of the
witnesses who attested the instrument at that time and place.
Again, on a certain occasion subsequent to the death of
Gregorio Tolentino, Juan Concepcion the husband of Adelaida
Tolentino, accompanied by Genoveva de Mendoza, called upon
Vergel de Dios, and in the conversation that resulted Vergel de
Dios told them that the will was properly executed, that he was
one of the attesting witnesses, and that it had been signed by all
of them in the office of La Previsora Filipina.
These circumstances and other incidents revealed in the proof
leave no room for doubt in our mind that Syyap and Vergel de
Dios have entered into a conspiracy between themselves, and in
concert with the opponents, to defeat the will of Gregorio
Tolentino although they are well aware that said will was in all
respects properly executed; and the trial court, in our opinion,
committed no error in admitting the will to probate.
When a will is contested it is the duty of the proponent to call all
of the attesting witnesses, if available but the validity of the will
in no wise depends upon the united support of the will by all of
those witnesses. A will may be admitted to probate
notwithstanding the fact that one or more of the subscribing
witnesses do not unite with the other, or others, in proving all
the facts upon which the validity of the will rests.
(Fernandez vs. Tantoco, 49 Phil., 380.) It is sufficient if the court
is satisfied from all the proof that the will was executed and
attested in the manner required by law. In this case we feel well
assured that the contested will was properly executed and the
order admitting to it probate was entirely proper.
The order appealed from will therefore be affirmed, with costs
against the appellants. So ordered.
EN BANC
G.R. No. L-20374 October 11, 1923
In re of Dolores Coronel, deceased.
LORENZO PECSON, applicant-appellee,
vs. AGUSTIN CORONEL, ET AL., opponents-appellants.
ROMUALDEZ, J.:
On November 28, 1922, the Court of First Instance of Pampanga
probated as the last will and testament of Dolores Coronel, the
document Exhibit A, which translated is as follows:
In the name of God, Amen:
I, Dolores Coronel, resident of Betis, Guagua, Pampanga,
Philippine Islands, in the full exercise of my mental faculties, do
hereby make my last will and testament, and revoke all former
wills by me executed.
I direct and order that my body be buried in conformity with my
social standing.
That having no forced heirs, I will all my properties, both
movable and immovable, to my nephew, Lorenzo Pecson, who is
married to my niece Angela Coronel, in consideration of the
good services with he has rendered, and is rendering to me with
good will and disinterestedness and to my full satisfaction.
I name and appoint my aforesaid nephew, Lorenzo Pecson,
executor of all that is willed and ordained in this my will, without
bond. Should he not be able to discharge his duties as such
executor for any reason whatsoever, I name and appoint as
substitute executor my grandson Victor Pecson, a native and
resident of the town of Betis, without requiring him to give
bond.
All my real and paraphernal property as well as my credits for I
declare that I have no debts, are specified in an inventory.
In testimony whereof and as I do not know how to write my
name, I have requested Vicente J. Francisco to write my name at
the foot hereof and on the left margin of each of its sheet
before me and all the undersigned witnesses this July 1, 1918.
VICENTE J. FRANCISCO
"For the testatrix Dolores Coronel
The foregoing document was executed and declared by Dolores
Coronel to be her last will and testament in our presence, and as
the testatrix does not know how to write her name, she
requested Vicente J. Francisco to sign her name under her
express direction in our presence, at the foot, and on the left
margin of each and every sheet, hereof. In testimony whereof,
each of us signed these presents in the presence of others and
of the testatrix at the foot hereof and on the margin of each and
everyone of the two sheets of which this document is
composed, which are numbered "one" and "two" on the upper
part of the face thereof.
(Sgd.) "MAXIMO VERGARA SOTERO
DUMAUAL MARCOS DE LOS SANTOS
MARIANO L. CRISOSTOMO PABLO
BARTOLOME MARCOS DE LA CRUZ DAMIAN
CRISOSTOMO
On the left margin of the two sheets of the will the following
signatures also appear: 12
Mariano L. Crisostomo, Vicente J. Francisco for the testatrix
Dolores Coronel, M. Vergara, Pablo Bartolome, Sotero Dumaual
Crisostomo, Marcos de la Cruz, Marcos de los Santos.
The petitioner for the probate of the will is Lorenzo Pecson,
husband of Angela Coronel, who is a niece of the deceased
Dolores Coronel.
The opponents are: Eriberto Coronel, Tito Coronel, Julian
Gozum, Cirila Santiago, widow of the deceased Macario Gozum,
in her own behalf and that of her three minor children, Hilarion
Coronel, Geronimo Coronel, Maria Coronel and her husband
Eladio Gongco, Juana Bituin, widow of the deceased Hipolito
Coronel, in her own behalf and that of her three children,
Generosa, Maria, and Jose, all minors, Rosario Coronel, Agustin
Coronel, Filomeno Coronel, Casimiro Coronel, Alejo Coronel,
Maria Coronel, Severina Coronel, Serapia Coronel, Maria Juana
de Ocampo, widow of the deceased Manuel Coronel, Dionisia
Coronel, and her husband Pantaleon Gunlao.
The probate of this will is impugned on the following grounds:
(a) That the proof does not that the document Exhibit A above
copied contains the last will of Dolores Coronel, and (b) that the
attestation clause is not in accordance with the provisions of
section 618 of the Code of Civil Procedure, as amended by Act
No. 2645.
These are the two principal questions which are debated in this
case and which we will now examine separately.
As to the first, which is the one raised in the first assignment of
error, the appellants argue: First, that it was improbable and
exceptional that Dolores Coronel should dispose of her estate,
as set forth in the document Exhibit A, her true being that the
same be distributed among her blood relatives; and second, that
if such will not expressed in fact, it was due to extraneous illegal
influence.
Let us examine the first point.
The opponents contend that it was not, nor could it be, the will
of the testatrix, because it is not natural nor usual that she
should completely exclude her blood relatives from her vast
estate, in order to will the same to one who is only a relative by
affinity, there appearing no sufficient motive for such exclusion,
inasmuch as until the death of Dolores Coronel, she maintained
very cordial relations with the aforesaid relatives who had
helped her in the management and direction of her lands. It
appears, however, from the testimony of Attorney Francisco
(page 71, transcript of the stenographic notes) that Dolores
Coronel revealed to him her suspicion against some of her
nephews as having been accomplices in a robbery of which she
had been a victim.
As to whether or not Lorenzo Pecson rendered services to
Dolores Coronel, the opponents admit that he rendered them at
least from the year 1914, although there is proof showing that
he rendered such services long before that time.
The appellants emphasize the fact that family ties in this country
are very strongly knit and that the exclusion of relative one's
estate an exceptional case. It is true that ties of relationship in
the Philippines are very strong, but we understand that cases of
preterition of relatives from the inheritance are not rare. The
liberty to dispose of one's estate by will when there are no
forced heirs is rendered sacred by the civil Code in force in the
Philippines since 1889. It is so provided in the first paragraph of
article in the following terms:
Any person who was no forced heirs may dispose by will of all
his property or any part of it in favor of any person qualified to
acquire it.”
Even ignoring the precedents of this legal precept, the Code
embodying it has been in force in the Philippines for more than
a quarter of a century, and for this reason it is not tenable to say
that the excercise of the liberty thereby granted is necessarily
exceptional, where it is not shown that the inhabitants of this
country whose customs must have been take into consideration
by the legislator in adopting this legal precept, are averse to
such a liberty.
As to preference given to Lorenzo Pecson, it is not purely
arbitrary, nor a caprice or a whim of the moment. The proof
adduced by this appelle, although contradicted, shows by a
preponderance of evidence that besides the services which the
opponents admit had been rendered by him to Dolores Coronel
since the year 1914, he had also rendered services prior to that
time and was the administrator and manager of the affairs of
said Dolores in the last years of her life. And that this was not a
whim of the moment is shown by the fact that six years before
the execution of the will in question, said Lorenzo Pecson was
named and appointed by Dolores Coronel as her sole heir in the
document Exhibit B, which, translated, is as follows:
1. That my present property was acquired by me by inheritance
from my parents, but a great part thereof was acquired by me
by my own efforts and exertions;
2. That I have made no inventory of my properties, but they can
be seen in the title deeds in my possession and in the
declarations of ownership;
3. That I institute Lorenzo Pecson, married to Angela Coronel,
and a known resident of the town, my heir to succeed to all my
properties;
4. That I appoint my said heir, Lorenzo Pecson, as executor, and,
in his default, Victor Pecson, a resident of the same town;
5. That as to my burial and other things connected with the
eternal rest of my soul, I leave them to the sound direction of
the aforesaid Lorenzo Pecson;
6. That as I cannot write I requested Martin Pangilinan, a native
and resident of this town, to write this will in accordance with
my wishes and precise instructions.
In testimony whereof I had the said Martin Pangilinan write my
name and surname, and affixed my mark between my name and
surname, and don Francisco Dumaual, Don Mariano Sunglao,
Don Sotero Dumaual, Don Marcos de la Cruz and Don Martin
Pangilinan signed as witnesses, they having been present at the
beginning of, during, and after, the execution of this my last will.
(Sgd.) "DOLORES CORONEL
Witnesses:
(Sgd.) "MARIANO SUNGLAO
MARCOS DE LA CRUZ
FRANCISCO DUMAUAL
SOTERO DUMAUAL
MARTIN PANGILINAN"
The appellants find in the testament Exhibit B something to
support their contention that the intention of Dolores Coronel
was to institute the said Pecson not as sole beneficiary, but
simply as executor and distributor of all her estate among her
heirs, for while Lorenzo Pecson's contention that he was
appointed sold beneficiary is based on the fact that he enjoyed
the confidence of Dolores Coronel in 1918 and administered all
her property, he did not exclusively have this confidence and
administration in the year 1912. Although such administration
and confidence were enjoyed by Pecson always jointly with 13
others and never exclusively, this fact does not show that the
will of the testatrix was to appoint Pecson only as executor and
distributor of her estate among the heirs, nor does it prevent
her, the testatrix, from instituting him in 1912 or 1918 as sole
beneficiary; nor does it constitute, lastly, a test for determining
whether or not such institution in favor of Pecson was the true
will of the testatrix.
We find, therefore, nothing strange in the preterition made by
Dolores Coronel of her blood relatives, nor in the designation of
Lorenzo Pecson as her sole beneficiary. Furthermore, although
the institution of the beneficiary here would not seem the most
usual and customary, still this would not be null per se.
In the absence of any statutory restriction every person
possesses absolute dominion over his property, and may bestow
it upon whomsoever he pleases without regard to natural or
legal claim upon his bounty. If the testator possesses the
requisite capacity to make a will, and the disposition of his
property is not affected by fraud of undue influence, the will is
not rendered invalid by the fact that it is unnatural,
unreasonable, or unjust. Nothing can prevent the testator from
making a will as eccentric, as injudicious, or as unjust as caprice,
frivolity, or revenge can dictate. However, as has already been
shown, the unreasonable or unjustice of a will may be
considered on the question of testamentary capacity. (40 Cyc.,
1079.)
The testamentary capacity of Dolores Coronel is not disputed in
this case.
Passing to the second question, to wit, whether or not the true
last will of Dolores Coronel was expressed in the testament
Exhibit A, we will begin with expounding how the idea of making
the aforesaid will here controverted was borne and carried out.
About the year 1916 or 1917, Dolores showed the document
Exhibit B to Attorney Francisco who was then her legal adviser
and who, considering that in order to make the expression of
her last will more legally valid, though it necessary that the
statement be prepared in conformity with the laws in force at
time of the death of the testatrix, and observing that the will
Exhibit B lacked the extrinsic formalities required by Act No.
2645 enacted after its execution, advised Dolores Coronel that
the will be remade. She followed the advice, and Attorney
Francisco, after receiving her instructions, drew the will Exhibit A
in accordance therewith, and brought it to the house of Dolores
Coronel for its execution.
Pablo Bartolome read Exhibit A to Dolores Coronel in her
presence and that of the witnesses and asked her whether the
will was in accordance with her wishes. Dolores Coronel answer
that it was, and requested her attorney, Mr. Francisco, to sign
the will for her, which the attorney accordingly did in the
presence of the witnesses, who in turn signed it before the
testatrix and in the presence of each other.
Upon the filing of the motion for a rehearing on the first order
allowing the probate of the will, the opponents presented an
affidavit of Pablo Bartolome to the effect that, following
instructions of Lorenzo Pecson, he had informed the testatrix
that the contents of the will were that she entrusted Pecson
with the distribution of all her property among the relatives of
the said Dolores. But during the new trial Pablo Bartolome, in
spite of being present in the court room on the day of the trial,
was not introduced as a witness, without such an omission
having been satisfactorily accounted for.
While it is true that the petitioner was bound to present Pablo
Bartolome, being one of the witnesses who signed the will, at
the second hearing when the probate was controverted, yet we
cannot consider this point against the appellee for this was not
raised in any of the assignments of error made by the
appellants. (Art. 20, Rules of the Supreme Court.)
On the other hand, it was incumbent upon the opponents to
present Pablo Bartolome to prove before the court the
statement by him in his affidavit, since it was their duty to prove
what they alleged, which was that Dolores Coronel had not
understood the true contents of the will Exhibit A. Having
suppressed, without explanation, the testimony of Pablo
Bartolome, the presumption is against the opponents and that
is, that such a testimony would have been adverse had it been
produced at the hearing of the case before the court. (Sec 334,
subsec. 5, Code of Civil Procedure.)
The opponents call our attention to the fourth clause of the
document which says: "I name and appoint my aforesaid
nephew, Lorenzo Pecson, executor of all that is willed and
ordained in this my will, without bond. Should he not be able to
discharge his duties as such executor for any reason
whatsoever, I name and appoint as a substitute executor my
grandson Victor Pecson, resident of the town of Betis, without
requiring him to give bond," and contend that this clause is
repugnant to the institution of Lorenzo Pecson as sole
beneficiary of all her estate, for if such was the intention of the
testatrix, there would have been no necessity of appointing an
executor, nor any reason for designating a substitute in case
that the first one should not be able to discharge his duties, and
they perceived in this clause the idea which, according to them,
was not expressed in the document, and which was that Pecson
was simply to be a mere executor entrusted with the
distribution to the estate among the relatives of the testatrix,
and that should he not be able to do so, this duty would
devolved upon his substitutes.
But it is not the sole duty of an executor to distribute the estate,
which in estate succession, such as the instant case, has to be
distributed with the intervention of the court. All executor has,
besides, other duties and general and special powers intended
for the preservation, defense, and liquidation of the estate so
long as the same has not reached, by order of the court, the
hands of those entitled thereto.
The fact that Dolores Coronel foresaw the necessity of an
executor does not imply a negation of her desire to will all her
estate to Lorenzo Pecson. It is to be noted, furthermore, that in
the will, it was ordered that her body be given a burial in
accordance with her social standing and she had a perfect right
to designate a person who should see to it that this order was
complied with. One of the functions of an executor is the
fulfillment of what is ordained in the will.
It is argued that the will of the testatrix was to will her estate to
her blood relatives, for such was the promise made to Maria
Coronel, whom Rosario Coronel tends to corroborate. We do
not find such a promise to have been sufficiently proven, and
much less to have been seriously made and coupled with a
positive intention on the part of Dolores Coronel to fulfill the
same. In the absence of sufficient proof of fraud, or undue
influence, we cannot take such a promise into account, for even
if such a promise was in fact made, Dolores Coronel could
retract or forget it afterwards and dispose of her estate as she
pleased. Wills themselves, which contain more than mere
promises, are essentially revocable.
It is said that the true will of Dolores Coronel not expressed in
the will can be inferred from the phrase used by Jose M. Reyes
in his deposition when speaking of the purpose for which
Lorenzo Pecson was to receive the estate, to wit:
in order that the latter might dispose of the estate in the most
appropriate manner 14
Weight is given to this phrase from the circumstance that its
author was requested by Attorney Francisco to explain the
contents of Exhibit B and had acted as interpreter between
Dolores Coronel and Attorney Francisco at their interviews
previous to the preparation of Exhibit A, and had translated into
the Pampango dialect this last document, and, lastly, was
present at the execution of the will in question.
The disputed phrase "in order that the latter might dispose of
the estate in the most appropriate manner" was used by the
witness Reyes while sick in a hospital and testifying in the course
of the taking of his deposition.
The appellants interpret the expression "dispose in the most
appropriate manner" as meaning to say "distribute it among the
heirs." Limiting ourselves to its meaning, the expression is a
broad one, for the disposition may be effected in several and
various ways, which may not necessarily be a "distribution
among the heirs," and still be a "disposition in the most
appropriate manner." "To dispose" is not the same as "to
distribute."
To judge correctly the import of this phrase, the circumstances
under which it was used must be taken into account in this
particular instance. The witness Reyes, the author of the phrase,
was not expressing his own original ideas when he used it, but
was translating into Spanish what Dolores Coronel had told him.
According to the facts, the said witness is not a Spaniard, that is
to say, the Spanish language is not his native tongue, but,
perhaps, the Pampango dialect. It is an admitted fact based on
reason and experience that when a person translates from one
language to another, it is easier for him to express with precision
and accuracy when the version is from a foreign language to a
native one than vice-versa. The witness Reyes translated from
the Pampango dialect, which must be more familiar to him, to
the Spanish language which is not his own tongue. And judging
from the language used by him during his testimony in this case,
it cannot be said that this witness masters the Spanish language.
Thus is explained the fact that when asked to give the reason for
the appointment of an executor in the will, he should say at the
morning session that "Dolores Coronel did appoint Don Lorenzo
Pecson and in his default, Victor Pecson, to act during her
lifetime, but not after he death," which was explained at the
afternoon session by saying "that Dolores Coronel did appoint
Don Lorenzo Pecson executor of all her estate during his lifetime
and that in his default, either through death or incapacity, Mr.
Victor Pecson was appointed executor." Taking into account all
the circumstances of this witness, there is ground to attribute
his inaccuracy as to the discharge of the duties of an executor,
not to ignorance of the elementary rule of law on the matter,
for the practice of which he was qualified, but to a non-mastery
of the Spanish language. We find in this detail of translation
made by the witness Reyes no sufficient reason to believe that
the will expressed by Dolores Coronel at the said interview with
Attorney Francisco was to appoint Lorenzo Pecson executor and
mere distributor of her estate among her heirs.
As to whether or not the burden of proof was on the petitioner
to establish that he was the sole legatee to the exclusion of the
relatives of Dolores Coronel, we understand that it was not his
duty to show the reasons which the testatrix may have had for
excluding her relatives from her estate, giving preference to
him. His duty was to prove that the will was voluntary and
authentic and he, who alleges that the estate was willed to
another, has the burden of proving his allegation.
Attorney Francisco is charged with having employed improper
means of making Lorenzo Pecson appear in the will as sole
beneficiary. However, after an examination of all the
proceedings had, we cannot find anything in the behavior of this
lawyer, relative to the preparation and execution of the will,
that would justify an unfavorable conclusion as to his personal
and professional conduct, nor that he should harbor any
wrongful or fraudulent purpose.
We find nothing censurable in his conduct in advising Dolores
Coronel to make a new will other than the last one, Exhibit B (in
the drawing of which he does not appear to her intervened), so
that the instrument might be executed with all the new
formalities required by the laws then in force; nor in the
preparation of the new will substantially in accordance with the
old one; nor in the selection of attesting witnesses who were
persons other than the relatives of Dolores Coronel. Knowing, as
he did, that Dolores was excluding her blood relatives from the
inheritance, in spite of her having been asked by him whether
their exclusion was due to a mere inadvertence, there is a
satisfactory explanation, compatible with honorable conduct,
why said attorney should prescind from such relatives in the
attesting of the will, to the end that no obstacle be placed in the
way to the probating thereof.
The fact that this attorney should presume that Dolores was to
ask him to sign the will for her and that he should prepare it
containing this detail is not in itself fraudulent. There was in this
case reason so to presume, and it appears that he asked her,
through Pablo Bartolome, whom she wanted to sign the
document in her stead.
No imputation can be made to this attorney of any interest in
favoring Lorenzo Pecson in the will, because the latter was
already his client at the execution of said will. Attorney Francisco
denied this fact, which we cannot consider proven after
examining the evidence.
The conduct observed by this attorney after the death of
Dolores Coronel in connection with the attempted arrangement
between Lorenzo Pecson and the opponents, does not, in our
opinion, constitute any data leading to the conclusion that an
heir different from the true one intended by the testatrix should
have been fraudulently made to appear instituted in the will
exhibit A. His attitude towards the opponents, as can be
gathered from the proceedings and especially from his letter
Exhibit D, does not show any perverse or fraudulent intent, but
rather a conciliatory purpose. It is said that such a step was well
calculated to prevent every possible opposition to the probate
of the will. Even admitting that one of his objects in entering
into such negotiations was to avoid every possible to the
probate of the will, such object is not incompatible with good
faith, nor does it necessarily justify the inference that the heir
instituted in the instrument was not the one whom the testatrix
wanted appointed.
The appellants find rather suspicious the interest shown by the
said attorney in trying to persuade Lorenzo Pecson to give them
some share of the estate. These negotiations were not carried
out by the attorney out of his own initiative, but at the instance
of the same opponent, Agustin Coronel, made by the latter in
his own behalf and that of his coopponents.
As to Lorenzo Pecson, we do not find in the record sufficient
proof to believe that he should have tried, through fraud or any
undue influence, to frustrate the alleged intention of the
testatrix to leave her estate to her blood relatives. The
opponents insinuate that Lorenzo Pecson employed Attorney
Francisco to carry out his reproachable designs, but such
depraved instrumentality was not proven, nor was it shown that
said lawyer, or Lorenzo Pecson, should have contrived or put
into execution any condemnable plan, nor that both should
have conspired for illegal purposes at the time of the 15
preparation and execution of the will Exhibit A.
Although Norberto Paras testified having heard, when the will
was being read to Dolores Coronel, the provision whereby the
estate was ordered distributed among the heirs, the
preponderance of the evidence is to the effect that said
Norberto Paras was not present at such reading of the will.
Appellant do not insist on the probative force of the testimony
of this witness, and do not oppose its being stricken out.
The data furnished by the case do not show, to our mind, that
Dolores Coronel should have had the intention of giving her
estate to her blood relatives instead of to Lorenzo Pecson at the
time of the execution of the will Exhibit A, nor that fraud or
whatever other illegal cause or undue influence should have
intervened in the execution of said testament. Neither fraud nor
evil is presumed and the record does not show either.
Turning to the second assignment of error, which is made to
consist in the will having been probated in spite of the fact that
the attestation clause was not in conformity with the provision
of section 618 of the Code of Civil Procedure, as amended by
Act No. 2645, let us examine the tenor of such clause which
literally is as follows:
The foregoing document was executed and declared by Dolores
Coronel to be her last will testament in our presence, and as
testatrix does not know how to write her name, she requested
Vicente J. Francisco to sign her name under her express
direction in our presence at the foot and on the left margin of
each and every sheet hereof. In testimony whereof, each of us
signed these presents in the presence of others of the testatrix
at the foot hereof and on the margin of each and everyone of
the two pages of which this document is composed. These
sheets are numbered correlatively with the words "one and
"two on the upper part of the face thereof.
(Sgd.) "Maximo Vergara, Sotero
Dumaual, Marcos de los Santos, Mariano L.
 Crisostomo, Pablo Bartolome, Marcos de la
Cruz, Damian Crisostomo."
Appellants remark that it is not stated in this clause that the will
was signed by the witnesses in the presence of the testatrix
and of each other, as required by section 618 of the Code of Civil
Procedure, as amended, which on this particular point provides
the following:
The attestation shall state the number of sheets or pages used,
upon which the will is written, and the fact that the testator
signed the will and every page thereof, or caused some other
person to write his name, under his express direction, in the
presence of three witnesses, and the latter witnessed and
signed the will and all pages thereof in the presence of the
testator and of each other.”
Stress is laid on the phrase used in the attestation clause above
copied, to wit:
each of us signed in the presence of others.
Two interpretations can absolutely be given here to the
expression "of others." One, that insinuated by the appellants,
namely, that it is equivalent to "of other persons," and the other,
that contended by the appellee, to wit, that the phrase should
be held to mean "of the others," the article "the" having
inadvertently been omitted.
Should the first interpretation prevail and "other persons" be
taken to mean persons different from the attesting witnesses,
then one of the solemnities required by law would be lacking.
Should the second be adopted and "of others" construed as
meaning the other witnesses to the will, then the law would
have been complied with in this respect.
Including the concomitant words, the controverted phrase
results thus: "each of us signed these presents in the presence of
others and of the testatrix."
If we should omit the words "of others and," the expression
would be reduced to "each of us signed these presents in the
presence of the testatrix," and the statement that the witnesses
signed each in the presence of the others would be lacking. But
as a matter of fact, these words "of others and" are present.
Then, what for are they there? Is it to say that the witnesses
signed in the presence of other persons foreign to the execution
of the will, which is completely useless and to no purpose in the
case, or was it for some useful, rational, necessary object, such
as that of making it appear that the witnesses signed the will
each in the presence of the others? The first theory presupposes
that the one who drew the will, who is Attorney Francisco, was
an unreasonable man, which is an inadmissible hypothesis,
being repugnant to the facts shown by the record. The second
theory is the most obvious, logical and reasonable under the
circumstances. It is true that the expression proved to be
deficient. The deficiency may have been caused by the drawer
of the will or by the typist. If by the typist, then it must be
presumed to have been merely accidental. If by the drawer, it is
explainable taking into account that Spanish is not only not the
native language of the Filipinos, who, in general, still speak until
nowadays their own dialects, but also that such language is not
even the only official language since several years ago.
In Re will of Abangan (40 Phil., 476), this court said:
The object of the solemnities surrounding the execution of wills
is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guarantee their truth
and authenticity. Therefore the laws on this subject should be
interpreted in such a way as to attain these primordial ends.
But, on the 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 requisite
entirely unnecesary, useless and frustrative of the testator's last
will, must be disregarded.
We believe it to be more reasonable to construe the disputed
phrase "of others" as meaning "of the other witnesses," and that
a grammatical or clerical error was committed consisting in the
omission of the article "the".
Grammatical or clerical errors are not usually considered of vital
importance when the intention is manifest in the will.
The court may correct clerical mistakes in writing, and disregard
technical rules of grammar as to the construction of the
language of the will when it becomes necessary for it to do so in
order to effectuate the testators manifest intention as
ascertained from the context of the will. But unless a different
construction is so required the ordinary rules of grammar should
be adhered to in construing the will. (40 Cyc., 1404).
And we understand that in the present case the interpretation
we adopt is imperative, being the most adequate and
reasonable.
The case of In the matter of the estate of Geronima Uy Coque
(43 Phil., 405), decided by this court and invoked by the 16
appellants, refers so far as pertinent to the point herein at issue,
to an attestation clause wherein the statement that the
witnesses signed the will in the presence of each other is totally
absent. In the case at bar, there is the expression "in the
presence of others" whose reasonable interpretation is, as we
have said, "in the presence of the other witnesses." We do not
find any party between the present case and that of Re Estate of
Geronima Uy Coque above cited.
Finally, we will take up the question submitted by the opponents
as to the alleged insufficiency of the evidence to show that the
attesting witnesses Damian Crisostomo and Sotero Dumaual
were present at the execution of the will in controversy.
Although this point is raised in the first assignment of error
made by the appellants, and not in the second, it is discussed in
this place because it refers to the very fact of attestation.
However, we do not believe it necessary to analyze in detail the
evidence of both parties on this particular point. The evidence
leads us to the conclusion that the two witnesses
aforementioned were present at the execution and signing of
the will. Such is also the conclusion of the trial judge who, in this
respect, states the following, in his decision:
As to the question of whether or not the testatrix and witnesses
signed the document Exhibit A in accordance with the provisions
of law on the matter, that is, whether or not the testatrix signed
the will, or caused it to be signed, in the presence of the
witnesses, and the latter in turn signed in her presence and that
of each other, the court, after observing the demeanor of the
witnesses for both parties, is of the opinion that those for the
petitioner spoke the truth. It is neither probable nor likely that a
man versed in the law, such as Attorney Francisco, who was
present at the execution of the will in question, and to whose
conscientiousness in the matter of compliance with all the
extrinsic formalities of the execution of a will, and to nothing
else, was due the fact that the testatrix had cancelled her
former will (Exhibit B) and had new one (Exhibit A) prepared and
executed, should have consented the omission of formality
compliance with which would have required little or no effort;
namely, that of seeing to it that the testatrix and the attesting
witnesses were all present when their respective signatures
were affixed to the will." And the record does not furnish us
sufficient ground for deviating from the line reasoning and
findings of the trial judge.
In conclusion we hold that the assignments of error made by the
appellants are not supported by the evidence of record.
The judgment appealed from if affirmed with costs against the
appellants. So ordered.
EN BANC
G.R. No. 72706 October 27, 1987
CONSTANTINO C. ACAIN, petitioner,
vs. HON. INTERMEDIATE APPELLATE COURT (Third Special Cases
Division), VIRGINIA A. FERNANDEZ and ROSA DIONGSON,
respondents.
PARAS, J.:
This is a petition for review on certiorari of the decision * of
respondent. Court of Appeals in AC-G.R. SP No. 05744
promulgated on August 30, 1985 (Rollo, p. 108) ordering the
dismissal of the petition in Special Proceedings No, 591 ACEB
and its Resolution issued on October 23, 1985 (Rollo, p. 72)
denying respondents' (petitioners herein) motion for
reconsideration.
The dispositive portion of the questioned decision reads as
follows:
WHEREFORE, the petition is hereby granted and respondent
Regional Trial Court of the Seventh Judicial Region, Branch XIII
(Cebu City), is hereby ordered to dismiss the petition in Special
Proceedings No. 591 ACEB No special pronouncement is made
as to costs.
The antecedents of the case, based on the summary of the
Intermediate Appellate Court, now Court of Appeals, (Rollo, pp.
108-109) are as follows:
On May 29, 1984 petitioner Constantino Acain filed on the
Regional Trial Court of Cebu City Branch XIII, a petition for the
probate of the will of the late Nemesio Acain and for the
issuance to the same petitioner of letters testamentary,
docketed as Special Proceedings No. 591 ACEB (Rollo, p. 29), on
the premise that Nemesio Acain died leaving a will in which
petitioner and his brothers Antonio, Flores and Jose and his
sisters Anita, Concepcion, Quirina and Laura were instituted as
heirs. The will allegedly executed by Nemesio Acain on February
17, 1960 was written in Bisaya (Rollo, p. 27) with a translation in
English (Rollo, p. 31) submi'tted by petitioner without objection
raised by private respondents. The will contained provisions on
burial rites, payment of debts, and the appointment of a certain
Atty. Ignacio G. Villagonzalo as the executor of the testament.
On the disposition of the testator's property, the will provided:
THIRD: All my shares that I may receive from our properties.
house, lands and money which I earned jointly with my wife
Rosa Diongson shall all be given by me to my brother SEGUNDO
ACAIN Filipino, widower, of legal age and presently residing at
357-C Sanciangko Street, Cebu City. In case my brother Segundo
Acain pre-deceased me, all the money properties, lands, houses
there in Bantayan and here in Cebu City which constitute my
share shall be given to me to his children, namely: Anita,
Constantino, Concepcion, Quirina, laura, Flores, Antonio and
Jose, all surnamed Acain.
Obviously, Segundo pre-deceased Nemesio. Thus it is the
children of Segundo who are claiming to be heirs, with
Constantino as the petitioner in Special Proceedings No. 591
ACEB
After the petition was set for hearing in the lower court on June
25, 1984 the oppositors (respondents herein Virginia A.
Fernandez, a legally adopted daughter of tile deceased and the
latter's widow Rosa Diongson Vda. de Acain filed a motion to
dismiss on the following grounds for the petitioner has no legal
capacity to institute these proceedings; (2) he is merely a
universal heir and (3) the widow and the adopted daughter have
been pretirited. (Rollo, p. 158). Said motion was denied by the
trial judge.
After the denial of their subsequent motion for reconsideration
in the lower court, respondents filed with the Supreme Court a
petition for certiorari and prohibition with preliminary injunction
which was subsequently referred to the Intermediate Appellate
Court by Resolution of the Court dated March 11, 1985
(Memorandum for Petitioner, p. 3; Rollo, p. 159).
Respondent Intermediate Appellate Court granted private
respondents' petition and ordered the trial court to dismiss the
petition for the probate of the will of Nemesio Acain in Special
Proceedings No. 591 ACEB
His motion for reconsideration having been denied, petitioner
filed this present petition for the review of respondent Court's
decision on December 18, 1985 (Rollo, p. 6). Respondents'
Comment was filed on June 6, 1986 (Rollo, p. 146).
On August 11, 1986 the Court resolved to give due course to the
petition (Rollo, p. 153). Respondents' Memorandum was filed on
September 22, 1986 (Rollo, p. 157); the Memorandum for
petitioner was filed on September 29, 1986 (Rollo, p. 177).
Petitioner raises the following issues (Memorandum for 17
petitioner, p. 4):
(A) The petition filed in AC-G.R. No. 05744 for certiorari and
prohibition with preliminary injunction is not the proper remedy
under the premises;
(B) The authority of the probate courts is limited only to
inquiring into the extrinsic validity of the will sought to be
probated and it cannot pass upon the intrinsic validity thereof
before it is admitted to probate;
(C) The will of Nemesio Acain is valid and must therefore, be
admitted to probate. The preterition mentioned in Article 854 of
the New Civil Code refers to preterition of "compulsory heirs in
the direct line," and does not apply to private respondents who
are not compulsory heirs in the direct line; their omission shall
not annul the institution of heirs;
(D) DICAT TESTATOR ET MERIT LEX. What the testator says will
be the law;
(E) There may be nothing in Article 854 of the New Civil Code,
that suggests that mere institution of a universal heir in the will
would give the heir so instituted a share in the inheritance but
there is a definite distinct intention of the testator in the case at
bar, explicitly expressed in his will. This is what matters and
should be in violable.
(F) As an instituted heir, petitioner has the legal interest and
standing to file the petition in Sp. Proc. No. 591 ACEB for
probate of the will of Nemesio Acain and
(G) Article 854 of the New Civil Code is a bill of attainder. It is
therefore unconstitutional and ineffectual.
The pivotal issue in this case is whether or not private
respondents have been pretirited.
Article 854 of the Civil Code provides:
Art. 854. The preterition or omission of one, some, or all of the
compulsory heirs in the direct line, whether living at the time of
the execution of the will or born after the death of the testator,
shall annul the institution of heir; but the devisees and legacies
shall be valid insofar as they are not; inofficious.
If the omitted compulsory heirs should die before the testator,
the institution shall he effectual, without prejudice to the right
of representation.”
Preterition consists in the omission in the testator's will of the
forced heirs or anyone of them either because they are not
mentioned therein, or, though mentioned, they are neither
instituted as heirs nor are expressly disinherited (Nuguid v.
Nuguid, 17 SCRA 450 [1966]; Maninang v. Court of Appeals, 114
SCRA 478 [1982]). Insofar as the widow is concerned, Article 854
of the Civil Code may not apply as she does not ascend or
descend from the testator, although she is a compulsory heir.
Stated otherwise, even if the surviving spouse is a compulsory
heir, there is no preterition even if she is omitted from the
inheritance, for she is not in the direct line. (Art. 854, Civil code)
however, the same thing cannot be said of the other respondent
Virginia A. Fernandez, whose legal adoption by the testator has
not been questioned by petitioner (.Memorandum for the
Petitioner, pp. 8-9). Under Article 39 of P.D. No. 603, known as
the Child and Youth Welfare Code, adoption gives to the
adopted person the same rights and duties as if he were a
legitimate child of the adopter and makes the adopted person a
legal heir of the adopter. It cannot be denied that she has totally
omitted and preterited in the will of the testator and that both
adopted child and the widow were deprived of at least their
legitime. Neither can it be denied that they were not expressly
disinherited. Hence, this is a clear case of preterition of the
legally adopted child.
Pretention annuls the institution of an heir and annulment
throws open to intestate succession the entire inheritance
including "la porcion libre (que) no hubiese dispuesto en virtual
de legado mejora o donacion" Maniesa as cited in Nuguid v.
Nuguid, supra; Maninang v. Court of Appeals, 114 SCRA [1982]).
The only provisions which do not result in intestacy are the
legacies and devises made in the will for they should stand valid
and respected, except insofar as the legitimes are concerned.
The universal institution of petitioner together with his brothers
and sisters to the entire inheritance of the testator results in
totally abrogating the will because the nullification of such
institution of universal heirs-without any other testamentary
disposition in the will-amounts to a declaration that nothing at
all was written. Carefully worded and in clear terms, Article 854
of the Civil Code offers no leeway for inferential interpretation
(Nuguid v. Nuguid), supra. No legacies nor devises having been
provided in the will the whole property of the deceased has
been left by universal title to petitioner and his brothers and
sisters. The effect of annulling the "Institution of heirs will be,
necessarily, the opening of a total intestacy (Neri v. Akutin, 74
Phil. 185 [1943]) except that proper legacies and devises must,
as already stated above, be respected.
We now deal with another matter. In order that a person may
be allowed to intervene in a probate proceeding he must have
an interest iii the estate, or in the will, or in the property to be
affected by it either as executor or as a claimant of the estate
and an interested party is one who would be benefited by the
estate such as an heir or one who has a claim against the estate
like a creditor (Sumilang v. Ramagosa, 21 SCRA 1369/1967).
Petitioner is not the appointed executor, neither a devisee or a
legatee there being no mention in the testamentary disposition
of any gift of an individual item of personal or real property he is
called upon to receive (Article 782, Civil Code). At the outset, he
appears to have an interest in the will as an heir, defined under
Article 782 of the Civil Code as a person called to the succession
either by the provision of a will or by operation of law. However,
intestacy having resulted from the preterition of respondent
adopted child and the universal institution of heirs, petitioner is
in effect not an heir of the testator. He has no legal standing to
petition for the probate of the will left by the deceased and
Special Proceedings No. 591 A-CEB must be dismissed.
As a general rule certiorari cannot be a substitute for appeal,
except when the questioned order is an oppressive exercise of j
judicial authority (People v. Villanueva, 110 SCRA 465 [1981];
Vda. de Caldito v. Segundo, 117 SCRA 573 [1982]; Co Chuan
Seng v. Court of Appeals, 128 SCRA 308 [1984]; and Bautista v.
Sarmiento, 138 SCRA 587 [1985]). It is axiomatic that the
remedies of certiorari and prohibition are not available where
the petitioner has the remedy of appeal or some other plain,
speedy and adequate remedy in the course of law (DD
Comendador Construction Corporation v. Sayo (118 SCRA 590
[1982]). They are, however, proper remedies to correct a grave
abuse of discretion of the trial court in not dismissing a case
where the dismissal is founded on valid grounds (Vda. de Bacang
v. Court of Appeals, 125 SCRA 137 [1983]).
Special Proceedings No. 591 ACEB is for the probate of a will. As
stated by respondent Court, the general rule is that the probate
court's authority is limited only to the extrinsic validity of the
will, the due execution thereof, the testator's testamentary
capacity and the compliance with the requisites or solemnities
prescribed by law. The intrinsic validity of the will normally
comes only after the Court has declared that the will has been
duly authenticated. Said court at this stage of the proceedings is 18
not called upon to rule on the intrinsic validity or efficacy of the
provisions of the will (Nuguid v. Nuguid, 17 SCRA 449 [1966];
Sumilang v. Ramagosa, supra; Maninang v. Court of Appeals, 114
SCRA 478 [1982]; Cayetano v. Leonides, 129 SCRA 522 [1984];
and Nepomuceno v. Court of Appeals, 139 SCRA 206 [1985]).
The rule, however, is not inflexible and absolute. Under
exceptional circumstances, the probate court is not powerless to
do what the situation constrains it to do and pass upon certain
provisions of the will (Nepomuceno v. Court of Appeals, supra).
In Nuguid v. Nuguid the oppositors to the probate moved to
dismiss on the ground of absolute preteriton The probate court
acting on the motion held that the will in question was a
complete nullity and dismissed the petition without costs. On
appeal the Supreme Court upheld the decision of the probate
court, induced by practical considerations. The Court said:
We pause to reflect. If the case were to be remanded for
probate of the will, nothing will be gained. On the contrary, this
litigation will be protracted. And for aught that appears in the
record, in the event of probate or if the court rejects the will,
probability exists that the case will come up once again before
us on the same issue of the intrinsic validity or nullity of the will.
Result: waste of time, effort, expense, plus added anxiety. These
are the practical considerations that induce us to a belief that
we might as well meet head-on the issue of the validity of the
provisions of the will in question. After all there exists a
justiciable controversy crying for solution.”
In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to
dismiss the petition by the surviving spouse was grounded on
petitioner's lack of legal capacity to institute the proceedings
which was fully substantiated by the evidence during the
hearing held in connection with said motion. The Court upheld
the probate court's order of dismissal.
In Cayetano v. Leonides, supra one of the issues raised in the
motion to dismiss the petition deals with the validity of the
provisions of the will. Respondent Judge allowed the probate of
the will. The Court held that as on its face the will appeared to
have preterited the petitioner the respondent judge should have
denied its probate outright. Where circumstances demand that
intrinsic validity of testamentary provisions be passed upon even
before the extrinsic validity of the will is resolved, the probate
court should meet the issue. (Nepomuceno v. Court of
Appeals, supra; Nuguid v. Nuguid, supra).
In the instant case private respondents filed a motion to dismiss
the petition in Sp. Proceedings No. 591 ACEB of the Regional
Trial Court of Cebu on the following grounds: (1) petitioner has
no legal capacity to institute the proceedings; (2) he is merely a
universal heir; and (3) the widow and the adopted daughter
have been preterited (Rollo, p. 158). It was denied by the trial
court in an order dated January 21, 1985 for the reason that
"the grounds for the motion to dismiss are matters properly to
be resolved after a hearing on the issues in the course of the
trial on the merits of the case (Rollo, p. 32). A subsequent
motion for reconsideration was denied by the trial court on
February 15, 1985 (Rollo, p. 109).
For private respondents to have tolerated the probate of the
will and allowed the case to progress when on its face the will
appears to be intrinsically void as petitioner and his brothers
and sisters were instituted as universal heirs coupled with the
obvious fact that one of the private respondents had been
preterited would have been an exercise in futility. It would have
meant a waste of time, effort, expense, plus added futility. The
trial court could have denied its probate outright or could have
passed upon the intrinsic validity of the testamentary provisions
before the extrinsic validity of the will was resolved (Cayetano v.
Leonides, supra; Nuquid v. Nuguid, supra. The remedies of
certiorari and prohibition were properly availed of by private
respondents.
Thus, this Court ruled that where the grounds for dismissal are
indubitable, the defendants had the right to resort to the more
speedy, and adequate remedies of certiorari and prohibition to
correct a grave abuse of discretion, amounting to lack of
jurisdiction, committed by the trial court in not dismissing the
case, (Vda. de Bacang v. Court of Appeals, supra) and even
assuming the existence of the remedy of appeal, the Court
harkens to the rule that in the broader interests of justice, a
petition for certiorari may be entertained, particularly where
appeal would not afford speedy and adequate relief. (Maninang
Court of Appeals, supra).
PREMISES CONSIDERED, the petition is hereby DENIED for lack
of merit and the questioned decision of respondent Court of
Appeals promulgated on August 30, 1985 and its Resolution
dated October 23, 1985 are hereby AFFIRMED.
SO ORDERED.
EN BANC
G.R. No. L-47799 June 13, 1941
Administration of the estate of Agripino Neri y Chavez.
ELEUTERIO NERI, ET AL., petitioners,
vs. IGNACIA AKUTIN AND HER CHILDREN, respondents.
MORAN, J.:
Agripino Neri y Chavez, who died on December 12, 1931, had by
his first marriage six children named Eleuterio, Agripino,
Agapito, Getulia, Rosario and Celerina; and by his second
marriage with Ignacia Akutin, five children named Gracia,
Godofredo, Violeta, Estela Maria, and Emma. Getulia, daughter
in the first marriage, died on October 2, 1923, that is, a little less
than eight years before the death of said Agripino Neri y Chavez,
and was survived by seven children named Remedios,
Encarnacion, Carmen, Trinidad, Luz, Alberto and Minda. In
Agripino Neri's testament, which was admitted to probate on
March 21, 1932, he willed that his children by the first marriage
shall have no longer any participation in his estate, as they had
already received their corresponding shares during his lifetime.
At the hearing for the declaration of heirs, the trial court found,
contrary to what the testator had declared in his will, that all his
children by the first and second marriages intestate heirs of the
deceased without prejudice to one-half of the improvements
introduced in the properties during the existence of the last
conjugal partnership, which should belong to Ignacia Akutin. The
Court of Appeals affirmed the trial court's decision with the
modification that the will was "valid with respect to the two-
thirds part which the testator could freely dispose of. "This
judgment of the Court of Appeals is now sought to be reviewed
in this petition for certiorari.
The decisive question here raised is whether, upon the
foregoing facts, the omission of the children of the first marriage
annuls the institution of the children of the first marriage as sole
heirs of the testator, or whether the will may be held valid, at
least with respect to one-third of the estate which the testator
may dispose of as legacy and to the other one-third which he
may bequeath as betterment, to said children of the second
marriage.
The Court of Appeals invoked the provisions of article 851 of the
Civil Code, which read in part as follows:
Disinheritance made without a statement of the cause, or for a
cause the truth of which, if contradicted, is not proven, ... shall
annul the institution of the heir in so far as it prejudices the
person disinherited; but the legacies, betterments, and other
testamentary dispositions, in so far as they do no encroach upon
the legitime, shall be valid.” 19
The appellate court thus seemed to have rested its judgment
upon the impression that the testator had intended to
disinherit, though ineffectively, the children of the first
marriage. There is nothing in the will that supports this
conclusion. True, the testator expressly denied them any share
in his estate; but the denial was predicated, not upon the desire
to disinherit, but upon the belief, mistaken though it was, that
the children by the first marriage had already received more
than their corresponding shares in his lifetime in the form of
advancement. Such belief conclusively negatives all inference as
to any intention to disinherit, unless his statement to that effect
is prove to be deliberately fictitious, a fact not found by the
Court of Appeals. The situation contemplated in the above
provision is one in which the purpose to disinherit is clear, but
upon a cause not stated or not proved, a situation which does
not obtain in the instant case.
The Court of Appeals quotes Manresa thus:
En el terreno de los principios, la solucion mas justa del
problema que hemos hecho notar al comentar el articulo, seria
distinguir el caso en que el heredero omitido viviese al otorgarse
el testamento, siendo conocida su existencia por el testador, de
aquel en que, o naciese despues, o se ignorase su existencia,
aplicando en el primer caso la doctrina del articulo 851, y en el
segundo la del 814. (6 Manresa, 354-355.)
But it must be observed that this opinion is founded on mere
principles (en el terreno de los principios) and not on the
express provisions of the law. Manresa himself admits that
according to law, "no existe hoy cuestion alguna en esta
materia: la pretericion produce siempre los mismos efectos, ya
se refiera a personas vivas al hacer el testamento o nacidas
despues. Este ultimo grupo solo puede hacer relacion a los
descendientes legitimos, siempre que ademas tengan derecho a
legitima." (6 Manresa, 381.)
Appellants, on the other hand, maintain that the case is one of
voluntary preterition of four of the children by the first
marriage, and of involuntary preterition of the children by the
deceased Getulia, also of the first marriage, and is thus
governed by the provisions of article 814 of the Civil Code,
which read in part as follows:
The preterition of one or all of the forced heirs in the direct line,
whether living at the time of the execution of the will or born
after the death of the testator, shall void the institution of heir;
but the legacies and betterments shall be valid, in so far as they
are not inofficious.”
Preterition consists in the omission in the testator's will of the
forced heirs or anyone of them, either because they are not
mentioned therein, or, though mentioned, they are neither
instituted as heirs nor are expressly disinherited.(Cf. 6 Manresa,
346.) In the instant case, while the children of the first marriage
were mentioned in the will, they were not accorded any share in
the heriditary property, without expressly being disinherited. It
is, therefore, a clear case of preterition as contended by
appellants. The omission of the forced heirs or anyone of them,
whether voluntary or involuntary, is a preterition if the purpose
to disinherit is not expressly made or is not at least manifest.
Except as to "legacies and betterments" which "shall be valid in
so far as they are not inofficious" (art. 814 of the Civil Code),
preterition avoids the institution of heirs and gives rise to
intestate succession. (Art. 814, Civil Code; Decisions of the
Supreme Court of Spain of June 17, 1908 and February 27,
1909.) In the instant case, no such legacies or betterments have
been made by the testator. "Mejoras" or betterments must be
expressly provided, according to articles 825 and 828 of the Civil
Code, and where no express provision therefor is made in the
will, the law would presume that the testator had no intention
to that effect. (Cf. 6 Manresa, 479.) In the will here in question,
no express betterment is made in favor of the children by the
second marriage; neither is there any legacy expressly made in
their behalf consisting of the third available for free disposal.
The whole inheritance is accorded the heirs by the second
marriage upon the mistaken belief that the heirs by the first
marriage have already received their shares. Were it not for this
mistake, the testator's intention, as may be clearly inferred from
his will, would have been to divide his property equally among
all his children.
Judgment of the Court of Appeals is reversed and that of the
trial court affirmed, without prejudice to the widow's legal
usufruct, with costs against respondents.
EN BANC
G.R. No. L-23079 February 27, 1970
RUBEN AUSTRIA, CONSUELO AUSTRIA-BENTA and LAURO
AUSTRIA MOZO, petitioners,
vs. HON. ANDRES REYES, Judge, Court of First Instance of Rizal,
PERFECTO CRUZ, BENITA CRUZ-MENEZ ISAGANI CRUZ, ALBERTO
CRUZ and LUZ CRUZ-SALONGA respondents.
CASTRO, J.:
On July 7, 1956 Basilia Austria vda. de Cruz filed with the Court
of First Instance of Rizal (Special Proceedings 2457) a petition for
probate, ante mortem, of her last will and testament. The
probate was opposed by the present petitioners Ruben Austria,
Consuelo Austria-Benta and Lauro Austria Mozo, and still others
who, like the petitioner, are nephews and nieces of Basilia. This
opposition was, however, dismissed and the probate of the will
allowed after due hearing.
The bulk of the estate of Basilia, admittedly, was destined under
the will to pass on to the respondents Perfecto Cruz, Benita
Cruz-Meñez, Isagani Cruz, Alberto Cruz, and Luz Cruz-Salonga, all
of whom had been assumed and declared by Basilia as her own
legally adopted children.
On April 23, 1959, more than two years after her will was
allowed to probate, Basilia died. The respondent Perfecto Cruz
was appointed executor without bond by the same court in
accordance with the provisions of the decedent's will,
notwithstanding the blocking attempt pursued by the petitioner
Ruben Austria.
Finally, on November 5, 1959, the present petitioners filed in
the same proceedings a petition in intervention for partition
alleging in substance that they are the nearest of kin of Basilia,
and that the five respondents Perfecto Cruz, et al., had not in
fact been adopted by the decedent in accordance with law, in
effect rendering these respondents mere strangers to the
decedent and without any right to succeed as heirs.
Notwithstanding opposition by the respondent Perfecto Cruz, as
executor of the estate, the court a quo allowed the petitioners'
intervention by its order of December 22, 1959, couched in
broad terms, as follows: "The Petition in Intervention for
Partition filed by the above-named oppositors [Ruben Austria, et
al.,] dated November 5, 1959 is hereby granted."
In the meantime, the contending sides debated the matter of
authenticity or lack of it of the several adoption papers
produced and presented by the respondents. On motion of the
petitioners Ruben Austria, et al., these documents were referred
to the National Bureau of Investigation for examination and
advice. N.B.I. report seems to bear out the genuineness of the 20
documents, but the petitioners, evidently dissatisfied with the
results, managed to obtain a preliminary opinion from a
Constabulary questioned-document examiner whose views
undermine the authenticity of the said documents. The
petitioners Ruben Austria, et al., thus moved the lower court to
refer the adoption papers to the Philippine Constabulary for
further study. The petitioners likewise located former personnel
of the court which appeared to have granted the questioned
adoption, and obtained written depositions from two of them
denying any knowledge of the pertinent adoption proceedings.
On February 6, 1963, more than three years after they were
allowed to intervene, the petitioners Ruben Austria, let al.,
moved the lower court to set for hearing the matter of the
genuineness of the adoption of the respondents Perfecto Cruz,
et al., by the late Basilia. Before the date set by the court for
hearing arrived, however, the respondent Benita Cruz-Meñez
who entered an appearance separately from that of her brother
Perfecto Cruz, filed on February 28, 1963 a motion asking the
lower court, by way of alternative relief, to confine the
petitioners' intervention, should it be permitted, to properties
not disposed of in the will of the decedent.
On March 4, 1963, the lower court heard the respondent
Benita's motion. Both sides subsequently submitted their
respective memoranda, and finally, the lower court issued an
order on June 4, 1963, delimiting the petitioners' intervention to
the properties of the deceased which were not disposed of in
the will.
The petitioners moved the lower court to reconsider this latest
order, eliciting thereby an opposition, from the respondents. On
October 25, 1963 the same court denied the petitioners' motion
for reconsideration.
A second motion for reconsideration which set off a long
exchange of memoranda from both sides, was summarily denied
on April 21, 1964.
Hence this petition for certiorari, praying this Court to annul the
orders of June 4 and October 25, 1963 and the order of April 21,
1964, all restricting petitioners' intervention to properties that
were not included in the decedent's testamentary dispositions.
The uncontested premises are clear. Two interests are locked in
dispute over the bulk of the estate of the deceased. Arrayed on
one side are the petitioners Ruben Austria, Consuelo Austria-
Benta and Lauro Austria Mozo, three of a number of nephews
and nieces who are concededly the nearest surviving blood
relatives of the decedent. On the other side are the respondents
brothers and sisters, Perfecto Cruz, Benita Cruz-Meñez, Isagani
Cruz, Alberto Cruz and Luz Cruz-Salonga, all of whom heirs in the
will of the deceased Basilia, and all of whom claim kinship with
the decedent by virtue of legal adoption. At the heart of the
controversy is Basilia's last will — immaculate in its extrinsic
validity since it bears the imprimatur of duly conducted probate
proceedings.
The complaint in intervention filed in the lower court assails the
legality of the tie which the respondent Perfecto Cruz and his
brothers and sisters claim to have with the decedent. The lower
court had, however, assumed, by its orders in question, that the
validity or invalidity of the adoption is not material nor decisive
on the efficacy of the institution of heirs; for, even if the
adoption in question were spurious, the respondents Perfecto
Cruz, et al., will nevertheless succeed not as compulsory heirs
but as testamentary heirs instituted in Basilia's will. This ruling
apparently finds support in article, 842 of the Civil Code which
reads:
One who has no compulsory heirs may dispose of by will all his
estate or any part of it in favor of any person having capacity to
succeed.
One who has compulsory heirs may dispose of his estate
provided he does not contravene the provisions of this Code
with regard to the legitime of said heirs.”
The lower court must have assumed that since the petitioners
nephews and niece are not compulsory heirs, they do not
possess that interest which can be prejudiced by a free-wheeling
testamentary disposition. The petitioners' interest is confined to
properties, if any, that have not been disposed of in the will, for
to that extent intestate succession can take place and the
question of the veracity of the adoption acquires relevance.
The petitioners nephews and niece, upon the other hand, insist
that the entire estate should descend to them by intestacy by
reason of the intrinsic nullity of the institution of heirs embodied
in the decedent's will. They have thus raised squarely the issue
of whether or not such institution of heirs would retain efficacy
in the event there exists proof that the adoption of the same
heirs by the decedent is false.
The petitioners cite, as the controlling rule, article 850 of the
Civil Code which reads:
The statement of a false cause for the institution of an heir shall
be considered as not written, unless it appears from the will that
the testator would not have made such institution if he had
known the falsity of such cause.”
Coming closer to the center of the controversy, the petitioners
have called the attention of the lower court and this Court to
the following pertinent portions of the will of the deceased
which recite:
III
Ang aking mga sapilitang tagapagmana (herederos forzosos) ay
ang aking itinuturing na mga anak na tunay (Hijos legalmente
adoptados) na sina Perfecto, Alberto, Luz, Benita at Isagani, na
pawang may apelyidong Cruz.
xxx xxx xxx
Kung ako ay bawian ng Dios ng buhay, ay aking ipinamamana
ang aking mga ari-ariang maiiwan, sa kaparaanang sumusunod:
A.—Aking ipinamamana sa aking nabanggit na limang anak na
sina Perfecto, Alberto, Luz, Benita at Isagani, na pawang may
apelyidong Cruz, na parepareho ang kaparti ng bawa't isa at
walang lamangan (en partes iguales), bilang kanilang sapilitang
mana (legiti[ma]), ang kalahati (½) ng aking kaparti sa lahat ng
aming ari-ariang gananciales ng aking yumaong asawang Pedro
Cruz na napapaloob sa Actuacion Especial No. 640 ng Hukumang
Unang Dulugan ng Rizal at itinutukoy sa No. 1 ng parafo IV ng
testamentong ito, ang kalahati (½) ng mga lagay na lupa at
palaisdaan na nasa Obando at Polo, Bulacan, na namana ko sa
aking yumaong ama na si Calixto Austria, at ang kalahati (½) ng
ilang lagay na lupa na nasa Tinejeros, Malabon, Rizal, na aking
namana sa yumao kong kapatid na si Fausto Austria.
The tenor of the language used, the petitioners argue, gives rise
to the inference that the late Basilia was deceived into believing
that she was legally bound to bequeath one-half of her entire
estate to the respondents Perfecto Cruz, et al. as the latter's
legitime. The petitioners further contend that had the deceased
known the adoption to be spurious, she would not have
instituted the respondents at all — the basis of the institution
being solely her belief that they were compulsory heirs. Proof
therefore of the falsity of the adoption would cause a nullity of 21
the institution of heirs and the opening of the estate wide to
intestacy. Did the lower court then abuse its discretion or act in
violation of the rights of the parties in barring the petitioners
nephews and niece from registering their claim even to
properties adjudicated by the decedent in her will?
Before the institution of heirs may be annulled under article 850
of the Civil Code, the following requisites must concur: First, the
cause for the institution of heirs must be stated in the
will; second, the cause must be shown to be false; and third, it
must appear from the face of the will that the testator would
not have made such institution if he had known the falsity of the
cause.
The petitioners would have us imply, from the use of the terms,
"sapilitang tagapagmana" (compulsory heirs) and "sapilitang
mana" (legitime), that the impelling reason or cause for the
institution of the respondents was the testatrix's belief that
under the law she could not do otherwise. If this were indeed
what prompted the testatrix in instituting the respondents, she
did not make it known in her will. Surely if she was aware that
succession to the legitime takes place by operation of law,
independent of her own wishes, she would not have found it
convenient to name her supposed compulsory heirs to their
legitimes. Her express adoption of the rules on legitimes should
very well indicate her complete agreement with that statutory
scheme. But even this, like the petitioners' own proposition, is
highly speculative of what was in the mind of the testatrix when
she executed her will. One fact prevails, however, and it is that
the decedent's will does not state in a specific or unequivocal
manner the cause for such institution of heirs. We cannot annul
the same on the basis of guesswork or uncertain implications.
And even if we should accept the petitioners' theory that the
decedent instituted the respondents Perfecto Cruz, et al. solely
because she believed that the law commanded her to do so, on
the false assumption that her adoption of these respondents
was valid, still such institution must stand.
Article 850 of the Civil Code, quoted above, is a positive
injunction to ignore whatever false cause the testator may have
written in his will for the institution of heirs. Such institution
may be annulled only when one is satisfied, after an
examination of the will, that the testator clearly would not have
made the institution if he had known the cause for it to be false.
Now, would the late Basilia have caused the revocation of the
institution of heirs if she had known that she was mistaken in
treating these heirs as her legally adopted children? Or would
she have instituted them nonetheless?
The decedent's will, which alone should provide the answer, is
mute on this point or at best is vague and uncertain. The
phrases, "mga sapilitang tagapagmana" and "sapilitang
mana," were borrowed from the language of the law on
succession and were used, respectively, to describe the class of
heirs instituted and the abstract object of the inheritance. They
offer no absolute indication that the decedent would have
willed her estate other than the way she did if she had known
that she was not bound by law to make allowance for legitimes.
Her disposition of the free portion of her estate (libre
disposicion) which largely favored the respondent Perfecto Cruz,
the latter's children, and the children of the respondent Benita
Cruz, shows a perceptible inclination on her part to give to the
respondents more than what she thought the law enjoined her
to give to them. Compare this with the relatively small devise of
land which the decedent had left for her blood relatives,
including the petitioners Consuelo Austria-Benta and Lauro
Mozo and the children of the petitioner Ruben Austria. Were we
to exclude the respondents Perfecto Cruz, et al. from the
inheritance, then the petitioners and the other nephews and
nieces would succeed to the bulk of the testate by intestacy — a
result which would subvert the clear wishes of the decedent.
Whatever doubts one entertains in his mind should be swept
away by these explicit injunctions in the Civil Code: "The words
of a will are to receive an interpretation which will give to every
expression some effect, rather than one which will render any of
the expressions inoperative; and of two modes of interpreting a
will, that is to be preferred which will prevent intestacy." 1
Testacy is favored and doubts are resolved on its side, especially
where the will evinces an intention on the part of the testator to
dispose of practically his whole estate,2 as was done in this case.
Moreover, so compelling is the principle that intestacy should be
avoided and the wishes of the testator allowed to prevail, that
we could even vary the language of the will for the purpose of
giving it effect.3 A probate court has found, by final judgment,
that the late Basilia Austria Vda. de Cruz was possessed of
testamentary capacity and her last will executed free from
falsification, fraud, trickery or undue influence. In this situation,
it becomes our duty to give full expression to her will.4
At all events, the legality of the adoption of the respondents by
the testatrix can be assailed only in a separate action brought
for that purpose, and cannot be the subject of a collateral
attack.5
To the petitioners' charge that the lower court had no power to
reverse its order of December 22, 1959, suffice it to state that,
as borne by the records, the subsequent orders complained of
served merely to clarify the first — an act which the court could
legally do. Every court has the inherent power to amend and
control its processes and orders so as to make them
conformable to law and justices.6 That the court a quo has
limited the extent of the petitioners' intervention is also within
its powers as articulated by the Rules of Court.7
ACCORDINGLY, the present petition is denied, at petitioners
cost.
EN BANC
G.R. No. L-13557 April 25, 1960
DONATO LAJOM, petitioner,
vs. HON. JOSE N. LEUTERIO, Judge of the Court of First Instance of
Nueva Ecija, and RAFAEL VIOLA, respondents.
M. Almario and J. T. Lajom for petitioner.
M. H. de Joya for respondents.
CONCEPCION, J.:
This is a petition for a writ of certiorari and mandamus to set
aside certain orders, and reinstate another order, of respondent
Judge.
The factual background of this case may be found in our
decision in G. R. No. L-6457, entitled "Donato Lajom vs. Jose
Viola, et al." (promulgated May 30, 1956), from which we quote:
Maximo Viola died on September 3, 1933. Judicial proceedings
of his testate estate were instituted in the Court of First Instance
of Bulacan (Civil Case No. 4741) and closed on March 17, 1937.
An agreement of partition and distribution (dated October 25,
1935) was executed by and between Jose P. Viola, Rafael Viola
and Silvio Viola, legitimate children of Maximo Viola and Juana
Toura, whereby the properties left by their father, Maximo
Viola, were divided among themselves. On March 17, 1939,
Donato Lajom (plaintiff-appellee herein) filed in the Court of
First Instance of Nueva Ecija a complaint, amended on May 16,
1939, praying, among other things, that he be declared a natural
child of Maximo Viola, impliedly recognized and acknowledged
in accordance with the laws in force prior to the Civil Code,
thereby being a co-heir of Jose P. Viola, Rafael Viola and Silvio
Viola (defendants-appellants); that the agreement of partition
and distribution executed in 1935 by these three legitimate 22
children of Maximo Viola be declaired null and void after
collation, payment of debts and accounting of fruits, anew
partition be ordered adjusdication one-seventh of the estate left
by Maximo Viola by Donato Lajom and two-seventh to each of
the three appellants. The latter filed a demurrer to the amended
complaint which was sustained by the Court of First Instance of
Nueva Ecija in its order of July 31, 1939, holding that the
allegation of the amended complaint called for the exercise of
probate jurisdication and that as the complaint showed that the
will of the deceased Maximo Viola had already been probated in
the Court of First Instance of Bulacan which had first taken
cognizance of the settlement of his estate, the Court of First
Instance of Nueva Ecija could not subsequently assume the
same jurisdiction. Upon appeal to the Supreme Court by the
plaintiff-appellee, the order sustaining the demurrer was
reversed and the case was remanded to the Court of First
Instance of Nueva Ecija for further proceeding.
On December 21, 1942, the defendants-appellants accordingly
filed an answer to the amended complaint containing specific
denials and setting up the affirmative defenses that the
appellants are the sole heirs of Maximo Viola; that
corresponding judicial proceedings of his testate estate were
duly instituted and terminated in the Court of First Instance of
Bulacan, of which plaintiff-appellee was fully aware; that the
action was filed by the appellee two years after the termination
of said testate proceedings and almost six years after the death
of Maximo Viola, without having previously asserted any right
whatsoever to any part of said estate, and he is therefore now
barred from doing so; and that assuming the appellee to be an
acknowledged natural child of Maximo Viola, his right of action
had prescribed. After trial, the Court of First Instance of Nueva
Ecija rendered a decision in favor of the plaintiff, the dispositive
part of which reads as follows:
EN VISTA DE LAS CONSIDERACIONES ARRIBA EXPUESTAS, el
Juzgado falla este asunto a favor del demandante y contra de los
demandados, declarando al demandante, Donato Lajom, hijo
natural, implicita y tacitamente, reconocido por su padre, el
difundo Dr. Maximo Viola, de acuerdo con la Ley de Toro; se
declara la particion y distribucion hecha por los demandados
"Convenio de Particion y Adjudicacion de los Bienes Dejados por
el Difundo Dr. Maximo Viola, ilegal, nulo y de ningun valor; se
ordena la colacion de los bienes en cuestion, poniendo los
mismos en manos de un administrador judicial; se ordena a
todos y cada uno de los aqui demandados a presentar una
liquidacion de los frutos y ptoductos provenientes de dichas
propiedades asignadas a cada uno de ellos desde el Octubre 25,
1935, con el fin de una nueva distribucion; se ordena a los
demandados Jose P. Viola y Silvio Viola a someter una
liquidacion de los frutos y productos de las tres parcelas de
terreno mencionadas en los parrafos 1 y 2 del Annex "A" que
han sido puestas bajo su administracion en el Procedimiento
Especial No. 4741 del Juzgado de Primera Instancia de Bulacan a
partir del 3 del Septembre de 1933; y finalmente, se ordena la
particion y adjudicacion a favor del demandante de una septima
(¹/7) parte de dichas propiedades y productos; dos septimas
(2/7) parbes a cada uno de los aqui demandados, cuando todas
esas propiedadespertenecientes al finado Dr. Maximo Viola sean
colados, todas las deudas pagodas y los frutos rendidos. Con
costas.
Said decision of the Court of First Instance of Nueva Ecija was,
on appeal, affirmed by this Court in said case No. L-6457 on May
30, 1956.
When the decision of this Court became final, the records were
remanded to the lower court where plaintiff filed a motion for
the execution of the judgment, the collation of all properties of
the late Dr. Maximo Viola and the redistribution of his estate as
indicated in said judgment. Acting on the motion, respondent
Judge issued an order dated October 30, 1956, pertinent parts
of which are of the following tenor:
The decision annulled the partition entered into by the
defendants and ordered the "collation of all the properties in
question", placing the same in the hands of a judicial
administrator. What the properties in question are, do not
clearly appear. In the inventory attached to the original
complaint, 75 parcels of land were enumerated. In the
agreement of partition which was annulled, the inventory of the
estate of the late Dr. Maximo Viola enumerates only 47 parcels
of land. These 47 parcels, according to the agreement of
partition, were all conjugal. In the motion for execution, plaintiff
now enumerates 84 parcels of land. The decision did not state
what properties belonged to the late Dr. Maximo Viola, but it
did provide for the partition of all the estate belonging to the
late Dr. Viola after the same had been collated and all the debts
paid and the fruits me liquidated. It would he manifestly unfair
to either party to consider the 75 parcels of land enumerated in
the inventory attached to the amended complaint as the
conjugal properties of the late Dr. Maximo Viola and his
deceased wife, or to limit the same to the 47 parcels
enumerated in the inventory of the estate of the late Dr.
Maximo Viola attached to the agreement of partition. As a
starting point, however, ½ of the 47 parcels enumerated in the
agreement of partition and marked, as Exhibit F-1, which is
Exhibit A of the deed of partition, are undoubtedly the
properties of the late Maximo Viola which must be partitioned
among the plaintiff and the defendants in accordance with the
decision. Accordingly, the defendants, who are in possession of
each and everyone of these 47 parcels, are hereby ordered to
deliver the same to the judicial administrator to be hereinafter
appointed, for his administration until the final partition in
accordance with the decision of this Court. As there is a
disagreement among the parties with respect to the other
properties, the plaintiff is hereby ordered to submit within 15
days upon receipt of this order a list of such other properties
which he believes belong to the late Dr. Maximo Viola. The
defendants shall file their opposition thereto within a like period
after which the same shall be set for hearing to determine
whether or not such properties belong to he late Dr. Maximo
Viola and which should be partitioned among his heir's.
The decision ordering the defendants to collate is questioned by
the defendants, first, on ground that what has been left by will
should not be collated, and second, that what has been left by
way of donation to some of the defendants should not also be
collated. The decision requires the defendants to collate all the
properties of the late Dr. Maximo viola so that they may be
partitioned among the heirs. That decision is now final, and it is
not for this, Court to say that the Court rendering the decision
had committed an error. If error there had been, it is now
beyond the power of this Court or any Court to correct the
same. However, the will having completely omitted the plaintiff
who is a compulsory heir, and having disposed of all the
properties in favor of the defendants, it naturally encroached
upon the legitime of the plaintiff. Such testamentary
dispositions may not impair the legitimate (Art. 1037, Spanish
Civil Code). In another sense, the plaintiff, being a compulsory
heir in the direct line, and having been preterited, the institution
is annulled in its entirety (Art. 814, Spanish Civil Code now Art.
854, N.C.C., Neri vs. Akutin, 72 Phil., 322).
With respect to the properties donated by the late Dr. Maximo
Viola and his wife to some of the defendants, the same must be
collated, but the donation having been made jointly by the
spouses, only ½ thereof must be brought into collation in
accordance with Article 1046 of the Spanish Civil Code.
Moreover, the same things donated are not to be brought to
collation and partition, but only their value at the time of the
donation in accordance with Article 1045 also of the Spanish 23
Code.
In accordance with the agreement of the parties, Mr. Manuel V.
Gallego, Jr. is hereby appointed administrator of the properties
herein collated and may take his oath and assume the
performance of his duties upon the filing of a bond in the sum of
P20,000.
In accordance with the dispositive part of the decisions, the
defendants Jose P. Viola and Silvio Viola are hereby ordered to
submit a liquidation of the fruits and products of the three
parcels of land mentioned in paragraphs 1 and 2 of Annex A.
Each and everyone of the defendants is hereby ordered to
submit a liquidation of the fruits and products of the properties
assigned to each and everyone of them from October 25, 1935,
all within 15 days from the receipt of this order.”
When Rafael Viola filed the report required in this order, Donato
Lajom noticed that nothing was said in the aforementioned
report concerning the fruits of a riceland, with an area of 215
hectares, allegedly donated by Dr. Maximo Viola to said Rafael
Viola. So, Lajom asked that Rafael Viola be ordered to include
the products of said riceland in his report, in order that the
property may be included in the redistribution of the Viola
Estate. Rafael Viola objected thereto upon the ground that said
property was not "mentioned or included in the complaint filed
in this case." The objection was sustained and the petition was
denied in an order dated October 30, 1957, stating that:
. . . In paragraph II of the amended complaint (p. 43 of the
record) only the donation inter vivos in favor of the defendants
Jose Viola and Silvio Viola were questioned. The dispositive part
of the decision required the defendants to collate the properties
in question. The properties which were donated to Rafael Viola
had not been put in issue by the pleadings and they are not in
question and, therefore, cannot be deemed to have been
embraced in the dispositive part of the decision requiring the
defendants to collate the properties in question.”
A motion for reconsideration of said order of October 30, 1957
was denied, on January 30, 1958, upon the ground that:
The decision required the defendants to collate the properties in
question. The properties donated to Rafael Viola and which are
sought to be collated by the plaintiff are not in question, not
having been put in issue by the pleadings. Neither are they
mentioned in the inventory of the 75 parcels which are annexed
to the complaint. If the court, in its previous orders, made
mention of collation of all the properties of the deceased, the
court had committed an error, and, therefore, corrects that
error in accordance with this order and in the order of October
30, 1957.”
Thereupon Lajom instituted the present case
for certiorari and mandamus, with the prayer:
. . . that the respondent Judge be ordered to set aside his Order
of October 30, 1957 and January 30, 1958 and reinstate his
original Order of October 30, 1956 requiring 'the defendants to
collate all the properties of the late Dr. Maxinio Viola so that
they may be partitioned among the heirs' and 'with respect to
the property donated by the late Dr. Maximo Viola and his wife
to some of the defendants the same must be collated.”
Petitioner maintains that the riceland aforementioned was
involved in case G. R. No. L-6457, because respondents
maintained in their brief and in the motion for reconsideration
filed by them in the Supreme Court that the lower court had
erred in ordering the collation of all the properties of the
deceased. Moreover, he urges that the order of respondent
Judge of October 30, 1956, had already declared that all
properties of the deceased, including those donated by him,
were subject to collation; that said order became final and
executory, no appeal having been taken therefrom; and that,
consequently, said order could not be validly modified or
reversed by the aforementioned orders of respondent Judge,
dated October 30, 1957 and January 30, 1958.
We find no merit in this pretense. The decision affirmed by this
Court in G. R. No. L-6457 ordained the collation of the
"properties in question". The properties in question were
described in an inventory attached to petitioner's original
complaint in case No. 8077 and did not include the
aforementioned riceland, with an area of 215 hectares. Indeed,
Lajom admits that he did not include, and could not have
included or mentioned it, in his complaint because, at the time Without prejudice, therefore, to the institution of the
of its filing, he did not know of the existence of said property. corresponding intestate proceedings by the proper party, the
Hence, the same was not in question in case No. 8077, and was petition herein should, therefore, be, as it is hereby, denied,
not covered by the decision therein rendered and subsequently with costs against the petitioner. It is so ordered.
affirmed by the Supreme Court in Case No. L-6457.
24
It is not accurate to say that the order of October 30, 1956, had
directed the collation of all property of the deceased. It did not
even require the collation of 75 parcels of land enumerated in
the inventory already adverted to. It expressed the view that
one-half of the 47 parcels covered by the agreement of partition
therein nullified, should be delivered to the administrator to be
hereinafter appointed. Then it added:
. . . As there is a disagreement among the parties with respect to
the other properties, the plaintiff is hereby ordered to submit
within 15 days upon receipt of this order a list of such other
properties which he believes belong to the late Dr. Maximo
Viola. The defendants shall file their opposition thereto within a
like period after which the same shall be set for hearing to
determine whether or not such properties belong to the late Dr.
Maximo Viola and which should be partitioned among his heirs.”
Thus, it left the question whether other properties should be
collated or not open for future determination. In any event,
respondent Judge was merely enforcing a decision that had
already become final. Any order directing what was not required
in said decision — and the same contained no pronouncement
with respect to the riceland adverted to above — would be in
excess of his jurisdiction and therefore, null and void.
It is next alleged that petitioner having been the victim of
preterition, the institution of heirs made by the deceased Dr.
Maximo Viola became ineffective, and that Civil Case No. 8077
was thereby converted into an intestate proceedings for the
settlement of his estate. This contention is clearly untenable.
There might have been merit therein if we were dealing with a
special proceedings for the settlement of the testate estate of a
deceased person, which, in consequence of said preterition,
would thereby acquire the character of a proceeding for the
settlement of an intestate estate, with jurisdiction over any and
all properties of the deceased. But, Civil Case No. 8077 is an
ordinary civil action, and the authority of the court having
jurisdiction over the same is limited to the properties described
in the pleadings, which admittedly do not include the
aforementioned riceland.