The Incompetent, CARMEN CAÑIZA, represented by her legal Judgment was rendered by the MetroTC on April 13, 1992
April 13, 1992 in on those postulates, that it is beyond the power of Cañiza's legal
guardian, AMPARO EVANGELISTA, petitioner,
vs.
COURT OF APPEALS (SPECIAL FIRST DIVISION), PEDRO
ESTRADA and his wife, LEONORA ESTRADA, respondents.
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
judgment of the Regional Trial Court of Quezon City, Branch
1 cognizable in the first instance by the Regional Trial Court."
107, in a guardianship proceeding instituted by her niece, Amparo
2
A. Evangelista. She was so adjudged because of her advanced
3
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. The complaint was later
4
amended to identify the incompetent Cañiza as plaintiff, suing
through her legal guardian, Amparo Evangelista.
The amended Complaint pertinently alleged that plaintiff Cañiza
5
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."
In their Answer with Counterclaim, the defendants declared that
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.
Cañiza's favor, the Estradas being ordered to vacate the
6 guardian to oust them from the disputed premises.
premises and pay Cañiza P5,000.00 by way of attorney's fees.
But on appeal, the decision was reversed by the Quezon City
8
Regional Trial Court, Branch 96. By judgment rendered on
9
October 21, 1992, the RTC held that the "action by which the
10
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
Cañiza sought to have the Court of Appeals reverse the decision
of October 21, 1992, but failed in that attempt. In a
decision promulgated on June 2, 1993, the Appellate
11
Court affirmed the RTC's judgment in toto. It ruled that (a) the
12
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
In the responsive pleading filed by them on this Court's
requirement, the Estradas insist that the case against them was
15
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 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,
Carmen Cañiza died on March 19, 1994, and her heirs — the
16
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. An inquiry into
18
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 is quoted below:
21
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, and a complaint for unlawful detainer is sufficient if it
22
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 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. The situation is not much different from that of a tenant
24
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. In other words, one whose stay is merely
25
tolerated becomes a deforciant illegally occupying the land or
property the moment he is required to leave. Thus, in Asset
26
Privatization Trust vs. Court of Appeals, where a company,
27
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, the reason being
28
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. Now, the complaint filed by Cañiza's guardian alleges
29
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; and until admitted to
30
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.). An owner's
31
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 dated December
32
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 . . " By that appointment, it became Evangelista's duty
33
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. It also became her
34
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. That right to manage the
35
ward's estate carries with it the right to take possession thereof
and recover it from anyone who retains it, and bring and defend
36
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 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, the rule affords no advantage to the
39
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 of June 20, 1994, they were in fact substituted as
40
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. That action, not being a purely
42
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.
G.R. No. L-23445 June 23, 1966
REMEDIOS NUGUID, petitioner and appellant,
vs.
FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and
appellees.
Custodio O. Partade for petitioner and appellant.
Beltran, Beltran and Beltran for oppositors and appellees.
SANCHEZ, J.:
Rosario Nuguid, a resident of Quezon City, died on December 30,
1962, single, without descendants, legitimate or illegitimate.
Surviving her were her legitimate parents, Felix Nuguid and Paz
Salonga Nuguid, and six (6) brothers and sisters, namely: Alfredo,
Federico, Remedios, Conrado, Lourdes and Alberto, all surnamed
Nuguid.
On May 18, 1963, petitioner Remedios Nuguid filed in the Court of
First Instance of Rizal a holographic will allegedly executed by
Rosario Nuguid on November 17, 1951, some 11 years before her
demise. Petitioner prayed that said will be admitted to probate and
that letters of administration with the will annexed be issued to
her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid,
concededly the legitimate father and mother of the deceased
Rosario Nuguid, entered their opposition to the probate of her will.
Ground therefor, inter alia, is that by the institution of petitioner
Remedios Nuguid as universal heir of the deceased, oppositors —
who are compulsory heirs of the deceased in the direct ascending
line — were illegally preterited and that in consequence the
institution is void.
On August 29, 1963, before a hearing was had on the petition for
probate and objection thereto, oppositors moved to dismiss on the
ground of absolute preterition.
On September 6, 1963, petitioner registered her opposition to the
motion to dismiss. 1äwphï1.ñët
The court's order of November 8, 1963, held that "the will in
question is a complete nullity and will perforce create intestacy of
the estate of the deceased Rosario Nuguid" and dismissed the
petition without costs.
A motion to reconsider having been thwarted below, petitioner
came to this Court on appeal.
1. Right at the outset, a procedural aspect has engaged our
attention. The case is for the probate of a will. The court's area of
inquiry is limited — to an examination of, and resolution on,
the extrinsic validity of the will. The due execution thereof, the
testatrix's testamentary capacity, and the compliance with the
requisites or solemnities by law prescribed, are the
questions solely to be presented, and to be acted upon, by the
court. Said court at this stage of the proceedings — is not called
upon to rule on the intrinsic validity or efficacy of the provisions of
the will, the legality of any devise or legacy therein. 1
A peculiar situation is here thrust upon us. The parties shunted
aside the question of whether or not the will should be allowed
probate. For them, the meat of the case is the intrinsic validity of
the will. Normally, this comes only after the court has declared
that the will has been duly authenticated.2 But petitioner and
oppositors, in the court below and here on appeal, travelled on the
issue of law, to wit: Is the will intrinsically a nullity?
We pause to reflect. If the case were to be remanded for probate
of the will, nothing will be gained. On the contrary, this litigation
will be protracted. And for aught that appears in the record, in the
event of probate or if the court rejects the will, probability exists
that the case will come up once again before us on the same
issue of the intrinsic validity or nullity of the will. Result: waste of
time, effort, expense, plus added anxiety. These are the practical
considerations that induce us to a belief that we might as well
meet head-on the issue of the validity of the provisions of the will
in question.3 After all, there exists a justiciable controversy crying
for solution.
2. Petitioner's sole assignment of error challenges the correctness
of the conclusion below that the will is a complete nullity. This
exacts from us a study of the disputed will and the applicable
statute.
Reproduced hereunder is the will:
Nov. 17, 1951
I, ROSARIO NUGUID, being of sound and disposing mind and
memory, having amassed a certain amount of property, do hereby
give, devise, and bequeath all of the property which I may have
when I die to my beloved sister Remedios Nuguid, age 34,
residing with me at 38-B Iriga, Q.C. In witness whereof, I have
signed my name this seventh day of November, nineteen hundred
and fifty-one.
(Sgd.) Illegible
T/ ROSARIO NUGUID
The statute we are called upon to apply in Article 854 of the Civil
Code which, in part, provides:
ART. 854. The preterition or omission of one, some, or
all of the compulsory heirs in the direct line, whether
living at the time of the execution of the will or born after
the death of the testator, shall annul the institution of
heir; but the devises and legacies shall be valid insofar
as they are not inofficious. ...
Except for inconsequential variation in terms, the foregoing is a
reproduction of Article 814 of the Civil Code of Spain of 1889,
which is similarly herein copied, thus —
Art. 814. The preterition of one or all of the forced heirs in
the direct line, whether living at the time of the execution
of the will or born after the death of the testator, shall
void the institution of heir; but the legacies and
betterments4 shall be valid, in so far as they are not
inofficious. ...
A comprehensive understanding of the term preterition employed
in the law becomes a necessity. On this point Manresa comments:
La pretericion consiste en omitar al heredero en el
testamento. O no se le nombra siquiera o aun
nombrandole como padre, hijo, etc., no se le instituya
heredero ni se le deshereda expresamente ni se le
asigna parte alguna de los bienes, resultando privado de
un modo tacito de su derecho a legitima.
Para que exista pretericion, con arreglo al articulo 814,
basta que en el testamento omita el testador a uno
cualquiera de aquellos a quienes por su muerte
corresponda la herencia forzosa.
Se necesita, pues, a) Que la omision se refiera a un
heredero forzoso. b) Que la omision sea completa; que
el heredero forzoso nada reciba en el testamento.
It may now appear trite bat nonetheless helpful in giving us a clear
perspective of the problem before us, to have on hand a clear-cut
definition of the word annul:
To "annul" means to abrogate, to make void ... In
re Morrow's Estate, 54 A. 342, 343, 204 Pa. 484.6
The word "annul" as used in statute requiring court to
annul alimony provisions of divorce decree upon wife's
remarriage means to reduce to nothing; to annihilate;
obliterate; blot out; to make void or of no effect; to nullify;
to abolish. N.J.S.A. 2:50 — 38 (now N.J.S. 2A:34-35).
Madden vs. Madden, 40 A. 2d 611, 614, 136 N..J Eq.
132.7
ANNUL. To reduce to nothing; annihilate; obliterate; to
make void or of no effect; to nullify; to abolish; to do
away with. Ex parte Mitchell, 123 W. Va. 283, 14 S.E. 2d.
771, 774.8
And now, back to the facts and the law. The deceased Rosario
Nuguid left no descendants, legitimate or illegitimate. But she left
forced heirs in the direct ascending line her parents, now
oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will
completely omits both of them: They thus received nothing by the
testament; tacitly, they were deprived of their legitime; neither
were they expressly disinherited. This is a clear case of
preterition. Such preterition in the words of Manresa "anulara
siempre la institucion de heredero, dando caracter absoluto a este
ordenamiento referring to the mandate of Article 814, now 854 of
the Civil Code.9 The one-sentence will here institutes petitioner as
the sole, universal heir — nothing more. No specific legacies or
bequests are therein provided for. It is in this posture that we say
that the nullity is complete. Perforce, Rosario Nuguid died
intestate. Says Manresa:
En cuanto a la institucion de heredero, se anula. Lo que
se anula deja de existir, en todo o en parte? No se
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 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
provision. With reference to article 814, which is the only
provision material to the disposition of this case, it must
be observed that the institution of heirs is therein dealt
with as a thing separate and distinct from legacies or
betterments. And they are separate and distinct not only
because they are distinctly and separately treated in said
article but because they are in themselves different.
Institution of heirs is a bequest by universal title of
property that is undetermined. Legacy refers to specific
property bequeathed by a particular or special title. ... But
again an institution of heirs cannot be taken as a
legacy. 25
The disputed order, we observe, declares the will in question "a
complete nullity". Article 854 of the Civil Code in turn merely
nullifies "the institution of heir". Considering, however, that the will
before us solely provides for the institution of petitioner as
universal heir, and nothing more, the result is the same. The
entire will is null.
Upon the view we take of this case, the order of November 8,
1963 under review is hereby affirmed. No costs allowed. So
ordered.

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
G.R. No. 157451 December 16, 2005
LETICIA VALMONTE ORTEGA, Petitioner,
vs.
JOSEFINA C. VALMONTE, Respondent.
DECISION
PANGANIBAN, J.:
The law favors the probate of a will. Upon those who oppose it
rests the burden of showing why it should not be allowed. In the
present case, petitioner has failed to discharge this burden
satisfactorily. For this reason, the Court cannot attribute any
reversible error on the part of the appellate tribunal that allowed
the probate of the will.
The Case
Before the Court is a Petition for Review under Rule 45 of the
1 Cabansag Valmonte, and a resident of 9200 Catmon Street,
Rules of Court, seeking to reverse and set aside the December
12, 2002 Decision and the March 7, 2003 Resolution of the Court
2 3
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
Makati, Metro Manila, 83 years of age and being of sound and
disposing mind and memory, do hereby declare this to be my last
will and testament:
1. It is my will that I be buried in the Catholic Cemetery, under the
auspices of the Catholic Church in accordance with the rites and
said Church and that a suitable monument to be erected and
provided my by executrix (wife) to perpetuate my memory in the
minds of my family and friends;
2. I give, devise and bequeath unto my loving wife, JOSEFINA C.
VALMONTE, one half (1/2) portion of the follow-described
properties, which belongs to me as [co-owner]:
a. Lot 4-A, Block 13 described on plan Psd-28575, LRC, (GLRO),
situated in Makati, Metro Manila, described and covered by TCT
No. 123468 of the Register of Deeds of Pasig, Metro-Manila
registered jointly as co-owners with my deceased sister (Ciriaca
Valmonte), having share and share alike;
b. 2-storey building standing on the above-described property,
made of strong and mixed materials used as my residence and
my wife and located at No. 9200 Catmon Street, Makati, Metro
Manila also covered by Tax Declaration No. A-025-00482, Makati,
Metro-Manila, jointly in the name of my deceased sister, Ciriaca
Valmonte and myself as co-owners, share and share alike or
equal co-owners thereof;
3. All the rest, residue and remainder of my real and personal
properties, including my savings account bank book in USA which
is in the possession of my nephew, and all others whatsoever and
wherever found, I give, devise and bequeath to my said wife,
Josefina C. Valmonte;
4. I hereby appoint my wife, Josefina C. Valmonte as sole
executrix of my last will and testament, and it is my will that said
executrix be exempt from filing a bond;
IN WITNESS WHEREOF, I have hereunto set my hand this 15th
day of June 1983 in Quezon City, Philippines.’
"The allowance to probate of this will was opposed by Leticia on
the grounds that:
1. Petitioner failed to allege all assets of the testator, especially
those found in the USA;
2. Petitioner failed to state the names, ages, and residences of the
heirs of the testator; or to give them proper notice pursuant to law;
3. Will was not executed and attested as required by law and legal
solemnities and formalities were not complied with;
4. Testator was mentally incapable to make a will at the time of
the alleged execution he being in an advance sate of senility;
5. Will was executed under duress, or the influence of fear or
threats;
6. Will was procured by undue and improper influence and
pressure on the part of the petitioner and/or her agents and/or
assistants; and/or
7. Signature of testator was procured by fraud, or trick, and he did
not intend that the instrument should be his will at the time of
affixing his signature thereto;’
and she also opposed the appointment as Executrix of Josefina
alleging her want of understanding and integrity.
"At the hearing, the petitioner Josefina testified and called as
witnesses the notary public Atty. Floro Sarmiento who prepared
and notarized the will, and the instrumental witnesses spouses
Eugenio Gomez, Jr. and Feliza Gomez and Josie Collado. For the
opposition, the oppositor Leticia and her daughter Mary Jane
Ortega testified.
"According to Josefina after her marriage with the testator they
lived in her parents house at Salingcob, Bacnotan, La Union but
they came to Manila every month to get his $366.00 monthly
pension and stayed at the said Makati residence. There were
times though when to shave off on expenses, the testator would
travel alone. And it was in one of his travels by his lonesome self
when the notarial will was made. The will was witnessed by the
spouses Eugenio and Feliza Gomez, who were their wedding
sponsors, and by Josie Collado. Josefina said she had no
knowledge of the existence of the last will and testament of her
husband, but just serendipitously found it in his attache case after
his death. It was only then that she learned that the testator
bequeathed to her his properties and she was named the
executrix in the said will. To her estimate, the value of property
both real and personal left by the testator is worth more or less
P100,000.00. Josefina declared too that the testator never
suffered mental infirmity because despite his old age he went
alone to the market which is two to three kilometers from their
home cooked and cleaned the kitchen and sometimes if she could
not accompany him, even traveled to Manila alone to claim his
monthly pension. Josefina also asserts that her husband was in
good health and that he was hospitalized only because of a cold
but which eventually resulted in his death.
"Notary Public Floro Sarmiento, the notary public who notarized
the 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" did not make him a person of unsound
6
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. Verily, Article 839 of the
10
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 the
Execution of a Will
Petitioner does not dispute the due observance of the formalities
in the execution of the will, but maintains that the circumstances
surrounding it are indicative of the existence of fraud. Particularly,
she alleges that respondent, who is the 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," thus casting doubt
11
Q You typed this document exhibit C, specifying the date June 15
on the intention of respondent in seeking the probate of the will. when the testator and his witnesses were supposed to be in your
Moreover, it supposedly "defies human reason, logic and common office?
experience" for an old man with a severe psychological condition
12
to have willingly signed a last will and testament. A Yes sir.
We are not convinced. Fraud "is a trick, secret device, false Q On June 15, 1983, did the testator and his witnesses come to
statement, or pretense, by which the subject of it is cheated. It your house?
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 A They did as of agreement but unfortunately, I was out of town.
deception regarding which the testator is led to make a certain will
which, but for the fraud, he would not have made." 13
xxxxxxxxx
We stress that the party challenging the will bears the burden of Q The document has been acknowledged on August 9, 1983 as
proving the existence of fraud at the time of its execution. The
14
per acknowledgement appearing therein. Was this the actual date
burden to show otherwise shifts to the proponent of the will only when the document was acknowledged?
upon a showing of credible evidence of fraud. Unfortunately in
15
this case, other than the self-serving allegations of petitioner, no A Yes sir.
evidence of fraud was ever presented.
Q What about the date when the testator and the three witnesses
It is a settled doctrine that the omission of some relatives does not affixed their respective signature on the first and second pages of
affect the due execution of a will. That the testator was tricked
16
exhibit C?
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, A On that particular date when it was acknowledged, August 9,
1983.
who were the ones who had taken "the cudgels of taking care of
[the testator] in his twilight years."
17
Q Why did you not make the necessary correction on the date
appearing on the body of the document as well as the attestation
Moreover, as correctly ruled by the appellate court, the conflict
between the dates appearing on the will does not invalidate the clause?
document, "because the law does not even require that a [notarial]
will x x x be executed and acknowledged on the same A Because I do not like anymore to make some alterations so I
occasion." More important, the will must be subscribed by the
18
put it in my own handwriting August 9, 1983 on the
testator, as well as by three or more credible witnesses who must acknowledgement. (tsn, June 11, 1985, pp. 8-10)
also attest to it in the presence of the testator and of one
another. Furthermore, the testator and the witnesses must
19
Eugenio Gomez:
acknowledge the will before a notary public. In any event, we
20
agree with the CA that "the variance in the dates of the will as to
Q It appears on the first page Mr. Witness that it is dated June 15,
its supposed execution and attestation was satisfactorily and
1983, whereas in the acknowledgement it is dated August 9,
persuasively explained by the notary public and the instrumental
1983, will you look at this document and tell us this discrepancy in
witnesses." 21
the date?
The pertinent transcript of stenographic notes taken on June 11,
1985, November 25, 1985, October 13, 1986, and October 21, A We went to Atty. Sarmiento together with Placido Valmonte and
1987 -- as quoted by the CA -- are reproduced respectively as the two witnesses; that was first week of June and Atty. Sarmiento
follows: told us to return on the 15th of June but when we returned, Atty.
Sarmiento was not there.
"Atty. Floro Sarmiento:
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)
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. Their testimony favoring it and the finding that it
23
was executed in accordance with the formalities required by law
should be affirmed, absent any showing of ill motives. 24
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, which held thus:
25

Capacity to Make a Will

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
In determining the capacity of the testator to make a will, the Civil
Code gives the following guidelines:
"Article 798. In order to make a will it is essential that the testator
be of sound mind at the time of its execution.
"Article 799. To be of sound mind, it is not necessary that the
testator be in full possession of all his reasoning faculties, or that
his mind be wholly unbroken, unimpaired, or shattered by disease,
injury or other cause.
"It shall be sufficient if the testator was able at the time of making
the will to know the nature of the estate to be disposed of, the
"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

we went there on August 9 and that was the time we affixed our
signature. (tsn, October 13, 1986, pp. 4-6) proper objects of his bounty, and the character of the
testamentary act. WHEREFORE, the Petition is DENIED, and the assailed Decision
and Resolution of the Court of Appeals are AFFIRMED. Costs
Josie Collado: against petitioner.
"Article 800. The law presumes that every person is of sound
mind, in the absence of proof to the contrary.
Q When you did not find Atty. Sarmiento in his house on June 15, SO ORDERED.
1983, what transpired?
"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
A The wife of Atty. Sarmiento told us that we will be back on the probate of the will; but if the testator, one month, or less,
August 9, 1983. before making his will was publicly known to be insane, the
person who maintains the validity of the will must prove that the
Q And on August 9, 1983 did you go back to the house of Atty. testator made it during a lucid interval."
Sarmiento?
According to Article 799, the three things that the testator must
A Yes, Sir. 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
Q For what purpose? 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
A Our purpose is just to sign the will. testamentary capacity at the time of the execution of his will.

Q Were you able to sign the will you mentioned?

G.R. No. L-3062 September 28, 1951
HILARION C. TOLENTINO, plaintiff-appellant,
vs.
THE BOARD OF ACCOUNTANCY, ROBERT ORR FERGUSON
and HANS HAUSAMANN, defendants-appellees.
Quijano, Rosete & Tizon for plaintiff-appellant.
Perkins, Ponce Enrile, Contreras and Claro M. Recto for
defendant-appellee.
BAUTISTA ANGELO, J.:
This is an action for declaratory relief filed by plaintiff in the Court
of First Instance of Manila for the purpose of testing the
constitutionality of section 16-A of Commonwealth Act No. 3105,
otherwise known as the Philippine Accountancy Law, as amended
by Commonwealth Act No. 342. The ground advanced for the
claim of unconstitutionality is that "it is a class legislation since by
its terms it excludes persons engaged in other callings or
professions from adopting, acquiring or using a trade name in
connection with the practice of such callings or professions."
The action is addressed against the Board of Accountancy,
Robert Orr Ferguson, and Hans Hausamann and notice thereof
has been served on the Solicitor General under section 4 of rule
66 of the Rules of Court; but the Board of Accountancy did not
answer the complaint, nor has the Solicitor General intervened.
Only Ferguson and Hausamann appeared and answered through
counsel. Attorney Claro M. Recto was allowed to intervene
as amicus curiae. The case was submitted for judgment on the
pleadings. After the parties had submitted their memoranda, the
court dismissed the complaint holding that the disputed law does
not offend against the constitution. From that decision the plaintiff
appealed to this Court.
As the facts are not disputed, and the case was submitted on the
pleadings, we are quoting hereunder the facts as found by the
lower court in its decision.
The complaint alleges that the plaintiff is a Filipino citizen
and a certified public accountant duly admitted to the
practice of accountancy as per certificate No. 1224
issued on March 16, 1948; that the Board of
Accountancy is an administrative body created by law
and vested with the power and authority to regulate and
supervise the practice of the profession of accountancy
in the Philippines, and that the defendants Robert Orr
Ferguson and Hans Hausamann are foreigners, the
former being a British subject and the latter a Swiss
subject, both admitted to the practice of accountancy in
the Philippines; that said two defendants have been and
are practicing their profession as certified public
accountants under the trade name "Fleming and
Williamson"; and that Section 16-A of Act No. 3105 as
amended by Commonwealth Act No. 342, authorizing
accountants to practice their profession under a trade
name, is unconstitutional on the ground that it excludes
persons engaged in other callings and professions from
adopting or acquiring or using a trade name.
In their answer the defendant Robert Orr Ferguson and
Hans Hausamann practically admitted the foregoing
allegations of the complaint. Said defendants allege that
Commonwealth Act No. 342 amending Act No. 3105,
authorizing the use of a trade name in the practice of the
profession of accountancy is not a class legislation, nor
does it violate the provision of the Constitution with
respect to equal protection of the laws; that the plaintiff
has no right or interest adversely affected by said law
and that he is entitled to the benefits thereof and may
use a trade or name firm name in the practice of his
profession as accountant.
Upon leave the court Atty. Claro M. Recto appeared
as amicus curiae supporting the validity or
constitutionality of the provision of law questioned by the
plaintiff.
The parties are agreed as to the material facts alleged in
the pleadings. They are also agreed that the firm name
"Fleming and WIlliamson" is an old trade name of
accountants which was used originally in 1952 by
Messrs. D.M. Flemung and J. Williamson. The right to
use this firm name was sold to various parties until the
end it was acquired at the defendants Robert Orr
Ferguson and Hans Hausamann in 1946. on June 10,
1946, defendants Robert Orr Ferguson and Hans
Hausamann formed a co-partnership styled "Ferguson
and Hausamann" doing business under the trade name
"Fleming and Williamson". The articles of co-partnership
were presented for registration in the Securities and
Exchange Commission on the same date. On June 13,
1936, this trade name "Fleming and Williamson" was
registered in the Bureau of Commerce in accordance
with Act No. 3883, as amended by Act No. 4147, as the
firm name of the partnership "Ferguson and
Hausamann," under which the said defendants would
practice their profession as certified public accountants in
the Philippines.
On September 17, 1948, the partnership of "Ferguson
and Hausamann" applied for the renewal of the
registration of "Fleming and Williamson" as their trade
name in accordance with the provisions of Act No. 3883,
as amended by Act No. 4147, and on the same date said
trade name or business name was so registered. 1âwphïl.nêt
The defendant Board of Accountancy did not appear or
answer notwithstanding service of summons upon it and
the upon the Solicitor General. By agreement of the
parties, the case was submitted for decision upon the
pleadings presented and the memoranda filed by the
parties.
We believe that the issues involved in the present case may be
boiled down as follows: (1) whether or not the plaintiff has
sufficient cause of action to question the constitutionality of
Commonwealth act No. 342; and (2) whether or not said Act is
constitutional.
1. Plaintiff brought this action for the purpose of testing the
constitutionality of Commonwealth Act No. 342 because,
according to the complaint, it constitutes class legislation for "by
its term it excludes persons engaged in other callings or
professions from adopting, acquiring or using a trade name in
connection with such calling or profession." His main objection
centers on the exclusive character of the law which extends its
benefits only to those engaged in the profession of accountancy. It
is obvious that he seeks the declaratory relief not for his own
personal benefit, or because his rights or prerogatives as an
accountant, or as an individual, are adversely affected, but rather
for the benefit of persons belonging to other professions or
callings, who are not parties to this case. He does not claim
having suffered any prejudice or damage to him or to his rights or
prerogatives as an accountant by the use of the disputed name by
the defendants. His complaint is rather addressed against the
propriety of the use of said trade name by the defendants
because it is misleading and is liable to defraud the public.
Plaintiff, therefore, has no actual justiciable controversy against
the herein defendants which may give him the right to secure
relief by asserting the unconstitutionality of the law in question.
This case, therefore, does not properly come under rule 66 of the
Rules of Court which authorizes the institution of an action for
declaratory relief.
The authorities are unanimous that in order that an action for
declaratory relief may be entertained, it must be predicated on the
following requisite facts or conditions: (1) there must be a
justiciable controversy; (2) the controversy must be between
persons whose interests are adverse; (3) the party seeking
declaratory relief must have a legal interest in the controversy;
and (4) the issue involved must be ripe for judicial determination.
These requisite facts are wanting and, therefore, the complaint
must fail for lack of sufficient cause of action.
Justiciability; its requisites. — Except that accomplished
physical wrong need not be alleged in a petition for
declaratory relief, a case of such nature must exhibit all
the usual conditions of an ordinary action. There must be
(1) real parties in interest (2) asserting adverse claims
and (3) presenting a ripe issue. The Supreme Court of
Pennsylvania summarized its exhaustive opinion on the
requisites of justiciability of an action for declaratory relief
by saying that the court must be "satisfied that an actual
controversy, or the ripening seeds of one, exists between
parties, all of whom are sui juris and before the court,
and that the declaration sought will be a practical help in
ending the controversy." Justice Brandeis thought that
"the fact that the plaintiff's desires are thwarted by its
own doubts, or by the fears of others does not confer a
cause of action." But the doubt becomes a justiciable
controversy when it is translated into a claim of right
which is actually contested. (Moran's Comm. on the
Rules of Court, vol. II, pp. 131-132, 3rd Ed.).
Granting for the sake of argument that plaintiff has established the
requisite facts to entitle him to claim for declaratory relief, we are,
however, of the opinion that Commonwealth Act No. 342 does not
offend against the equal protection clause of our Constitution on
the ground of class legislation, for the reason that said Act applies
alike to all persons pursuing the same calling or profession under
the same conditions or requirements. Said Acts gives the right or
affords the same privileges to all accountants without distinction or
discrimination. This benefit is extended to the defendants as well
as to the plaintiff. The only requirement is that they should comply
with the provisions of Act No. 3883 as to the procedure to be
followed relative to the use of the chosen trade name. So long as
the law applies to all alike, the requirements of equal protection
are met. (Louisiana ex rel. Francis vs, Reswober, 329 U.S. 559).
The discriminations which are open to objections are those in
which persons engaged in the same business are subjected to
different privileges under the same conditions. (Soon Hing vs.
Crowley, 113 U.S., 703). The authorities on this point are
numerous but for our purpose it is sufficient to quote some which
are deemed representative.
It is a general rule that legislation which affects alike all
persons pursuing the same business under the same
conditions is not such class legislation as is prohibited by
constitutional provisions. The discrimination which are
open to objection are those in which persons engaged in
the same business are subjected to different restrictions
or are held entitled to different privileges under the same
conditions. Part of the liberty of a citizen consists in the
enjoyment, upon terms of equality with all others in
similar circumstances, of the privilege of pursuing an
ordinary calling or trade and of acquiring, holding, and
selling property. The constitutional guaranty as to the
equal protection of the laws, moreover, requires that no
impediment should be interposed to the pursuits of
anyone except as applied to the same pursuits by others
under similar circumstances and that no greater burdens
in engaging in a calling should be laid upon one than are
laid upon others in the same calling and condition. (12
Am. Jur., 187.).
The general rule is well settled that legislation which, in
carrying out a public purpose, is limited in its application,
if within the sphere of its operation its affects all persons
similarly situated, is not within the prohibition of the 14th
Amendment. The mere fact that legislation is based on a
classification and is made to apply only to a certain
limited group of persons, and not to others, does not
affect its validity, if it is so made that all persons subject
to its terms are treats alike under similar circumstances
and conditions. (12 A. Jur., 143.)
The legislature may classify professions, occupations,
and business, according to natural and reasonable lines
of distinction, and if a statute affects like all persons of
the same class it is not invalid as class legislation; . . .
(16 C.J. S., 966.)
Classification of businesses, occupations, and callings
may be made according to natural, reasonable, and well-
organized lines of distinction, and the mere fact that a
statute or ordinance applies only to a particular position
or profession, or to a particular trade occupation, or
business, or discriminates between persons in different
classes of occupations or lines or business, does not
renders it unconstitutional as class legislation, and such
statutes are valid whenever the partial application or
discrimination is based on real and reasonable
distinctions existing in the subject matter, and affects
alike all persons of the same class or pursuing the same
business under the same conditions; . . . (16 C.J.S.,
967.)
It is not true that Commonwealth Act. No. 342 precludes
practitioners of other professions, occupations or calling from
using a trade name in connection with the practice of their
professions, occupation or calling. While said Act does not
mention other professions, occupations or calling, it does not
mean that they are precluded from using a trade name as this
privilege is likewise given to them in other similar laws. We may
mention Commonwealth Act No. 294 for mechanical engineers,
Republic Act No. 318 for chemical engineers, and even the
corporation law as regards corporate names (Tolentino's
Commentaries on Commercial Laws, vol. II, p. 753).
Assuming that Commonwealth act No. 342 grants to accountants
a privilege not accorded to members of other professions or
callings, that alone would not render the Act discriminatory or
violative of the equal protection clause of the constitution, for that
clause only means "that no person or class of persons shall be
denied the same protection of the laws which is enjoyed by other
persons or other classes in the same place and in like
circumstances". (Missouri vs. Lewis, 101 U.S. 22, 31.) And the
Legislature may classify professions, occupations, and business
according to natural and reasonable lines of distinction, and if a
statute affects like all persons of the same class it is not invalid as
a class legislation." (16 C.J.S., 966).
The claim that Commonwealth Act No. 342 is discriminatory
because it was approved only to protect foreign accountants has
no basis in law or in fact, for there is nothing that bears it out. Said
Act applies to all accountants in general without distinction.
The claim that said Act contravenes the principle of separation of
powers is likewise untenable. The Act does not encroach upon the
powers of the Executive Department as represented by the Board
of Accountancy simply because it attempts to regulate the
profession of accountants. If our legislature can create the Board
of Accountancy, it can certainly amend the law that gave life to it
without in any way encrouching on the prerogatives of the
Executive Department of our government.
Wherefore, the decision appealed from is affirmed with costs
against the appellants.
G.R. No. L-20374 October 11, 1923
In re of Dolores Coronel, deceased.
LORENZO PECSON, applicant-appellee,
vs.
AGUSTIN CORONEL, ET AL., opponents-appellants.
Fisher, DeWitt, Perkins and Brady for appellants.
Ross and Lawrence and Guillermo Lualhati for appellee.
ROMUALDEZ, J.:
On November 28, 1922, the Court of First Instance of Pampanga
probated as the last will and testament of Dolores Coronel, the
document Exhibit A, which translated is as follows:
In the name of God, Amen:
I, Dolores Coronel, resident of Betis, Guagua,
Pampanga, Philippine Islands, in the full exercise of my
mental faculties, do hereby make my last will and
testament, and revoke all former wills by me executed.
I direct and order that my body be buried in conformity
with my social standing.
That having no forced heirs, I will all my properties, both
movable and immovable, to my nephew, Lorenzo
Pecson, who is married to my niece Angela Coronel, in
consideration of the good services with he has rendered,
and is rendering to me with good will and
disinterestedness and to my full satisfaction.
I name and appoint my aforesaid nephew, Lorenzo
Pecson, executor of all that is willed and ordained in this
my will, without bond. Should he not be able to discharge
his duties as such executor for any reason whatsoever, I
name and appoint as substitute executor my grandson
Victor Pecson, a native and resident of the town of Betis,
without requiring him to give bond. 1awph!l.net
All my real and paraphernal property as well as my
credits for I declare that I have no debts, are specified in
an inventory.
In testimony whereof and as I do not know how to write
my name, I have requested Vicente J. Francisco to write
my name at the foot hereof and on the left margin of
each of its sheet before me and all the undersigned
witnesses this July 1, 1918.
VICENTE J. FRANCISCO
"For the testatrix Dolores Coronel
The foregoing document was executed and declared by
Dolores Coronel to be her last will and testament in our
presence, and as the testatrix does not know how to
write her name, she requested Vicente J. Francisco to
sign her name under her express direction in our
presence, at the foot, and on the left margin of each and
every sheet, hereof. In testimony whereof, each of us
signed these presents in the presence of others and of
the testatrix at the foot hereof and on the margin of each
and everyone of the two sheets of which this document is
composed, which are numbered "one" and "two" on the
upper part of the face thereof.
(Sgd.) "MAXIMO VERGARA SOTERO
DUMAUAL MARCOS DE LOS SANTOS
MARIANO L.
CRISOSTOMO PABLO
BARTOLOME MARCOS DE LA
CRUZ DAMIAN CRISOSTOMO
On the left margin of the two sheets of the will the
following signatures also appear:
Mariano L. Crisostomo, Vicente J. Francisco for the
testatrix Dolores Coronel, M. Vergara, Pablo Bartolome,
Sotero Dumaual Crisostomo, Marcos de la Cruz, Marcos
de los Santos.
The petitioner for the probate of the will is Lorenzo Pecson,
husband of Angela Coronel, who is a niece of the deceased
Dolores Coronel.
The opponents are: Eriberto Coronel, Tito Coronel, Julian Gozum,
Cirila Santiago, widow of the deceased Macario Gozum, in her
own behalf and that of her three minor children, Hilarion Coronel,
Geronimo Coronel, Maria Coronel and her husband Eladio
Gongco, Juana Bituin, widow of the deceased Hipolito Coronel, in
her own behalf and that of her three children, Generosa, Maria,
and Jose, all minors, Rosario Coronel, Agustin Coronel, Filomeno
Coronel, Casimiro Coronel, Alejo Coronel, Maria Coronel,
Severina Coronel, Serapia Coronel, Maria Juana de Ocampo,
widow of the deceased Manuel Coronel, Dionisia Coronel, and her
husband Pantaleon Gunlao.
The probate of this will is impugned on the following grounds: (a)
That the proof does not that the document Exhibit A above copied
contains the last will of Dolores Coronel, and (b) that the
attestation clause is not in accordance with the provisions of
section 618 of the Code of Civil Procedure, as amended by Act
No. 2645.
These are the two principal questions which are debated in this
case and which we will now examine separately.
As to the first, which is the one raised in the first assignment of
error, the appellants argue: First, that it was improbable and
exceptional that Dolores Coronel should dispose of her estate, as
set forth in the document Exhibit A, her true being that the same
be distributed among her blood relatives; and second, that if such
will not expressed in fact, it was due to extraneous illegal
influence.
Let us examine the first point.
The opponents contend that it was not, nor could it be, the will of
the testatrix, because it is not natural nor usual that she should
completely exclude her blood relatives from her vast estate, in
order to will the same to one who is only a relative by affinity,
there appearing no sufficient motive for such exclusion, inasmuch
as until the death of Dolores Coronel, she maintained very cordial
relations with the aforesaid relatives who had helped her in the
management and direction of her lands. It appears, however, from
the testimony of Attorney Francisco (page 71, transcript of the
stenographic notes) that Dolores Coronel revealed to him her
suspicion against some of her nephews as having been
accomplices in a robbery of which she had been a victim.
As to whether or not Lorenzo Pecson rendered services to
Dolores Coronel, the opponents admit that he rendered them at
least from the year 1914, although there is proof showing that he
rendered such services long before that time.
The appellants emphasize the fact that family ties in this country
are very strongly knit and that the exclusion of relative one's
estate an exceptional case. It is true that ties of relationship in the
Philippines are very strong, but we understand that cases of
preterition of relatives from the inheritance are not rare. The liberty
to dispose of one's estate by will when there are no forced heirs is
rendered sacred by the civil Code in force in the Philippines since
1889. It is so provided in the first paragraph of article in the
following terms:
Any person who was no forced heirs may dispose by will
of all his property or any part of it in favor of any person
qualified to acquire it.
Even ignoring the precedents of this legal precept, the Code
embodying it has been in force in the Philippines for more than a
quarter of a century, and for this reason it is not tenable to say
that the excercise of the liberty thereby granted is necessarily
exceptional, where it is not shown that the inhabitants of this
country whose customs must have been take into consideration
by the legislator in adopting this legal precept, are averse to such
a liberty.
As to preference given to Lorenzo Pecson, it is not purely
arbitrary, nor a caprice or a whim of the moment. The proof
adduced by this appelle, although contradicted, shows by a
preponderance of evidence that besides the services which the
opponents admit had been rendered by him to Dolores Coronel
since the year 1914, he had also rendered services prior to that
time and was the administrator and manager of the affairs of said
Dolores in the last years of her life. And that this was not a whim
of the moment is shown by the fact that six years before the
execution of the will in question, said Lorenzo Pecson was named
and appointed by Dolores Coronel as her sole heir in the
document Exhibit B, which, translated, is as follows:
1. That my present property was acquired by me by
inheritance from my parents, but a great part thereof was
acquired by me by my own efforts and exertions;
2. That I have made no inventory of my properties, but
they can be seen in the title deeds in my possession and
in the declarations of ownership;
3. That I institute Lorenzo Pecson, married to Angela
Coronel, and a known resident of the town, my heir to
succeed to all my properties;
4. That I appoint my said heir, Lorenzo Pecson, as
executor, and, in his default, Victor Pecson, a resident of
the same town;
5. That as to my burial and other things connected with
the eternal rest of my soul, I leave them to the sound
direction of the aforesaid Lorenzo Pecson;
6. That as I cannot write I requested Martin Pangilinan, a
native and resident of this town, to write this will in
accordance with my wishes and precise instructions.
In testimony whereof I had the said Martin Pangilinan
write my name and surname, and affixed my mark
between my name and surname, and don Francisco
Dumaual, Don Mariano Sunglao, Don Sotero Dumaual,
Don Marcos de la Cruz and Don Martin Pangilinan
signed as witnesses, they having been present at the
beginning of, during, and after, the execution of this my
last will.
(Sgd.) "DOLORES CORONEL
Witnesses:
(Sgd.) "MARIANO SUNGLAO
MARCOS DE LA CRUZ
FRANCISCO DUMAUAL
SOTERO DUMAUAL
MARTIN PANGILINAN"
The appellants find in the testament Exhibit B something to
support their contention that the intention of Dolores Coronel was
to institute the said Pecson not as sole beneficiary, but simply as
executor and distributor of all her estate among her heirs, for while
Lorenzo Pecson's contention that he was appointed sold
beneficiary is based on the fact that he enjoyed the confidence of
Dolores Coronel in 1918 and administered all her property, he did
not exclusively have this confidence and administration in the year
1912. Although such administration and confidence were enjoyed
by Pecson always jointly with others and never exclusively, this
fact does not show that the will of the testatrix was to appoint
Pecson only as executor and distributor of her estate among the
heirs, nor does it prevent her, the testatrix, from instituting him in
1912 or 1918 as sole beneficiary; nor does it constitute, lastly, a
test for determining whether or not such institution in favor of
Pecson was the true will of the testatrix.
We find, therefore, nothing strange in the preterition made by
Dolores Coronel of her blood relatives, nor in the designation of
Lorenzo Pecson as her sole beneficiary. Furthermore, although
the institution of the beneficiary here would not seem the most
usual and customary, still this would not be null per se.
In the absence of any statutory restriction every person
possesses absolute dominion over his property, and may
bestow it upon whomsoever he pleases without regard to
natural or legal claim upon his bounty. If the testator
possesses the requisite capacity to make a will, and the
disposition of his property is not affected by fraud of
undue influence, the will is not rendered invalid by the
fact that it is unnatural, unreasonable, or unjust. Nothing
can prevent the testator from making a will as eccentric,
as injudicious, or as unjust as caprice, frivolity, or
revenge can dictate. However, as has already been
shown, the unreasonable or unjustice of a will may be
considered on the question of testamentary capacity. (40
Cyc., 1079.)
The testamentary capacity of Dolores Coronel is not disputed in
this case.
Passing to the second question, to wit, whether or not the true last
will of Dolores Coronel was expressed in the testament Exhibit A,
we will begin with expounding how the idea of making the
aforesaid will here controverted was borne and carried out.
About the year 1916 or 1917, Dolores showed the document
Exhibit B to Attorney Francisco who was then her legal adviser
and who, considering that in order to make the expression of her
last will more legally valid, though it necessary that the statement
be prepared in conformity with the laws in force at time of the
death of the testatrix, and observing that the will Exhibit B lacked
the extrinsic formalities required by Act No. 2645 enacted after its
execution, advised Dolores Coronel that the will be remade. She
followed the advice, and Attorney Francisco, after receiving her
instructions, drew the will Exhibit A in accordance therewith, and
brought it to the house of Dolores Coronel for its execution.
Pablo Bartolome read Exhibit A to Dolores Coronel in her
presence and that of the witnesses and asked her whether the will
was in accordance with her wishes. Dolores Coronel answer that
it was, and requested her attorney, Mr. Francisco, to sign the will
for her, which the attorney accordingly did in the presence of the
witnesses, who in turn signed it before the testatrix and in the
presence of each other.
Upon the filing of the motion for a rehearing on the first order
allowing the probate of the will, the opponents presented an
affidavit of Pablo Bartolome to the effect that, following
instructions of Lorenzo Pecson, he had informed the testatrix that
the contents of the will were that she entrusted Pecson with the
distribution of all her property among the relatives of the said
Dolores. But during the new trial Pablo Bartolome, in spite of
being present in the court room on the day of the trial, was not
introduced as a witness, without such an omission having been
satisfactorily accounted for.
While it is true that the petitioner was bound to present Pablo
Bartolome, being one of the witnesses who signed the will, at the
second hearing when the probate was controverted, yet we
cannot consider this point against the appellee for this was not
raised in any of the assignments of error made by the appellants.
(Art. 20, Rules of the Supreme Court.)
On the other hand, it was incumbent upon the opponents to
present Pablo Bartolome to prove before the court the statement
by him in his affidavit, since it was their duty to prove what they
alleged, which was that Dolores Coronel had not understood the
true contents of the will Exhibit A. Having suppressed, without
explanation, the testimony of Pablo Bartolome, the presumption is
against the opponents and that is, that such a testimony would
have been adverse had it been produced at the hearing of the
case before the court. (Sec 334, subsec. 5, Code of Civil
Procedure.)
The opponents call our attention to the fourth clause of the
document which says: "I name and appoint my aforesaid nephew,
Lorenzo Pecson, executor of all that is willed and ordained in this
my will, without bond. Should he not be able to discharge his
duties as such executor for any reason whatsoever, I name and
appoint as a substitute executor my grandson Victor Pecson,
resident of the town of Betis, without requiring him to give bond,"
and contend that this clause is repugnant to the institution of
Lorenzo Pecson as sole beneficiary of all her estate, for if such
was the intention of the testatrix, there would have been no
necessity of appointing an executor, nor any reason for
designating a substitute in case that the first one should not be
able to discharge his duties, and they perceived in this clause the
idea which, according to them, was not expressed in the
document, and which was that Pecson was simply to be a mere
executor entrusted with the distribution to the estate among the
relatives of the testatrix, and that should he not be able to do so,
this duty would devolved upon his substitutes.
But it is not the sole duty of an executor to distribute the estate,
which in estate succession, such as the instant case, has to be
distributed with the intervention of the court. All executor has,
besides, other duties and general and special powers intended for
the preservation, defense, and liquidation of the estate so long as
the same has not reached, by order of the court, the hands of
those entitled thereto.
The fact that Dolores Coronel foresaw the necessity of an
executor does not imply a negation of her desire to will all her
estate to Lorenzo Pecson. It is to be noted, furthermore, that in
the will, it was ordered that her body be given a burial in
accordance with her social standing and she had a perfect right to
designate a person who should see to it that this order was
complied with. One of the functions of an executor is the fulfillment
of what is ordained in the will.
It is argued that the will of the testatrix was to will her estate to her
blood relatives, for such was the promise made to Maria Coronel,
whom Rosario Coronel tends to corroborate. We do not find such
a promise to have been sufficiently proven, and much less to have
been seriously made and coupled with a positive intention on the
part of Dolores Coronel to fulfill the same. In the absence of
sufficient proof of fraud, or undue influence, we cannot take such
a promise into account, for even if such a promise was in fact
made, Dolores Coronel could retract or forget it afterwards and
dispose of her estate as she pleased. Wills themselves, which
contain more than mere promises, are essentially revocable.
It is said that the true will of Dolores Coronel not expressed in the
will can be inferred from the phrase used by Jose M. Reyes in his
deposition when speaking of the purpose for which Lorenzo
Pecson was to receive the estate, to wit:
in order that the latter might dispose of the estate in the
most appropriate manner
Weight is given to this phrase from the circumstance that its
author was requested by Attorney Francisco to explain the
contents of Exhibit B and had acted as interpreter between
Dolores Coronel and Attorney Francisco at their interviews
previous to the preparation of Exhibit A, and had translated into
the Pampango dialect this last document, and, lastly, was present
at the execution of the will in question.
The disputed phrase "in order that the latter might dispose of the
estate in the most appropriate manner" was used by the witness
Reyes while sick in a hospital and testifying in the course of the
taking of his deposition.
The appellants interpret the expression "dispose in the most
appropriate manner" as meaning to say "distribute it among the
heirs." Limiting ourselves to its meaning, the expression is a broad
one, for the disposition may be effected in several and various
ways, which may not necessarily be a "distribution among the
heirs," and still be a "disposition in the most appropriate manner."
"To dispose" is not the same as "to distribute."
To judge correctly the import of this phrase, the circumstances
under which it was used must be taken into account in this
particular instance. The witness Reyes, the author of the phrase,
was not expressing his own original ideas when he used it, but
was translating into Spanish what Dolores Coronel had told him.
According to the facts, the said witness is not a Spaniard, that is
to say, the Spanish language is not his native tongue, but,
perhaps, the Pampango dialect. It is an admitted fact based on
reason and experience that when a person translates from one
language to another, it is easier for him to express with precision
and accuracy when the version is from a foreign language to a
native one than vice-versa. The witness Reyes translated from the
Pampango dialect, which must be more familiar to him, to the
Spanish language which is not his own tongue. And judging from
the language used by him during his testimony in this case, it
cannot be said that this witness masters the Spanish language.
Thus is explained the fact that when asked to give the reason for
the appointment of an executor in the will, he should say at the
morning session that "Dolores Coronel did appoint Don Lorenzo
Pecson and in his default, Victor Pecson, to act during her
lifetime, but not after he death," which was explained at the
afternoon session by saying "that Dolores Coronel did appoint
Don Lorenzo Pecson executor of all her estate during his lifetime
and that in his default, either through death or incapacity, Mr.
Victor Pecson was appointed executor." Taking into account all
the circumstances of this witness, there is ground to attribute his
inaccuracy as to the discharge of the duties of an executor, not to
ignorance of the elementary rule of law on the matter, for the
practice of which he was qualified, but to a non-mastery of the
Spanish language. We find in this detail of translation made by the
witness Reyes no sufficient reason to believe that the will
expressed by Dolores Coronel at the said interview with Attorney
Francisco was to appoint Lorenzo Pecson executor and mere
distributor of her estate among her heirs.
As to whether or not the burden of proof was on the petitioner to
establish that he was the sole legatee to the exclusion of the
relatives of Dolores Coronel, we understand that it was not his
duty to show the reasons which the testatrix may have had for
excluding her relatives from her estate, giving preference to him.
His duty was to prove that the will was voluntary and authentic
and he, who alleges that the estate was willed to another, has the
burden of proving his allegation.
Attorney Francisco is charged with having employed improper
means of making Lorenzo Pecson appear in the will as sole
beneficiary. However, after an examination of all the proceedings
had, we cannot find anything in the behavior of this lawyer,
relative to the preparation and execution of the will, that would
justify an unfavorable conclusion as to his personal and
professional conduct, nor that he should harbor any wrongful or
fraudulent purpose.
We find nothing censurable in his conduct in advising Dolores
Coronel to make a new will other than the last one, Exhibit B (in
the drawing of which he does not appear to her intervened), so
that the instrument might be executed with all the new formalities
required by the laws then in force; nor in the preparation of the
new will substantially in accordance with the old one; nor in the
selection of attesting witnesses who were persons other than the
relatives of Dolores Coronel. Knowing, as he did, that Dolores was
excluding her blood relatives from the inheritance, in spite of her
having been asked by him whether their exclusion was due to a
mere inadvertence, there is a satisfactory explanation, compatible
with honorable conduct, why said attorney should prescind from
such relatives in the attesting of the will, to the end that no
obstacle be placed in the way to the probating thereof.
The fact that this attorney should presume that Dolores was to ask
him to sign the will for her and that he should prepare it containing
this detail is not in itself fraudulent. There was in this case reason
so to presume, and it appears that he asked her, through Pablo
Bartolome, whom she wanted to sign the document in her stead.
No imputation can be made to this attorney of any interest in
favoring Lorenzo Pecson in the will, because the latter was
already his client at the execution of said will. Attorney Francisco
denied this fact, which we cannot consider proven after examining
the evidence.
The conduct observed by this attorney after the death of Dolores
Coronel in connection with the attempted arrangement between
Lorenzo Pecson and the opponents, does not, in our opinion,
constitute any data leading to the conclusion that an heir different
from the true one intended by the testatrix should have been
fraudulently made to appear instituted in the will exhibit A. His
attitude towards the opponents, as can be gathered from the
proceedings and especially from his letter Exhibit D, does not
show any perverse or fraudulent intent, but rather a conciliatory
purpose. It is said that such a step was well calculated to prevent
every possible opposition to the probate of the will. Even admitting
that one of his objects in entering into such negotiations was to
avoid every possible to the probate of the will, such object is not
incompatible with good faith, nor does it necessarily justify the
inference that the heir instituted in the instrument was not the one
whom the testatrix wanted appointed.
The appellants find rather suspicious the interest shown by the
said attorney in trying to persuade Lorenzo Pecson to give them
some share of the estate. These negotiations were not carried out
by the attorney out of his own initiative, but at the instance of the
same opponent, Agustin Coronel, made by the latter in his own
behalf and that of his coopponents.
As to Lorenzo Pecson, we do not find in the record sufficient proof
to believe that he should have tried, through fraud or any undue
influence, to frustrate the alleged intention of the testatrix to leave
her estate to her blood relatives. The opponents insinuate that
Lorenzo Pecson employed Attorney Francisco to carry out his
reproachable designs, but such depraved instrumentality was not
proven, nor was it shown that said lawyer, or Lorenzo Pecson,
should have contrived or put into execution any condemnable
plan, nor that both should have conspired for illegal purposes at
the time of the preparation and execution of the will Exhibit A.
Although Norberto Paras testified having heard, when the will was
being read to Dolores Coronel, the provision whereby the estate
was ordered distributed among the heirs, the preponderance of
the evidence is to the effect that said Norberto Paras was not
present at such reading of the will. Appellant do not insist on the
probative force of the testimony of this witness, and do not oppose
its being stricken out.
The data furnished by the case do not show, to our mind, that
Dolores Coronel should have had the intention of giving her estate
to her blood relatives instead of to Lorenzo Pecson at the time of
the execution of the will Exhibit A, nor that fraud or whatever other
illegal cause or undue influence should have intervened in the
execution of said testament. Neither fraud nor evil is presumed
and the record does not show either.
Turning to the second assignment of error, which is made to
consist in the will having been probated in spite of the fact that the
attestation clause was not in conformity with the provision of
section 618 of the Code of Civil Procedure, as amended by Act
No. 2645, let us examine the tenor of such clause which literally is
as follows:
The foregoing document was executed and declared by
Dolores Coronel to be her last will testament in our
presence, and as testatrix does not know how to write
her name, she requested Vicente J. Francisco to sign her
name under her express direction in our presence at the
foot and on the left margin of each and every sheet
hereof. In testimony whereof, each of us signed these
presents in the presence of others of the testatrix at the
foot hereof and on the margin of each and everyone of
the two pages of which this document is composed.
These sheets are numbered correlatively with the words
"one and "two on the upper part of the face thereof.
(Sgd.) "Maximo Vergara, Sotero
Dumaual, Marcos de los Santos, Mariano L.
Crisostomo, Pablo Bartolome, Marcos de la
Cruz, Damian Crisostomo."
Appellants remark that it is not stated in this clause that the will
was signed by the witnesses in the presence of the testatrix
and of each other, as required by section 618 of the Code of Civil
Procedure, as amended, which on this particular point provides
the following:
The attestation shall state the number of sheets or pages
used, upon which the will is written, and the fact that the
testator signed the will and every page thereof, or
caused some other person to write his name, under his
express direction, in the presence of three witnesses,
and the latter witnessed and signed the will and all pages
thereof in the presence of the testator and of each other.
Stress is laid on the phrase used in the attestation clause above
copied, to wit:
each of us signed in the presence of others.
Two interpretations can absolutely be given here to the
expression "of others." One, that insinuated by the appellants,
namely, that it is equivalent to "of other persons," and the other,
that contended by the appellee, to wit, that the phrase should be
held to mean "of the others," the article "the" having inadvertently
been omitted.
Should the first interpretation prevail and "other persons" be taken
to mean persons different from the attesting witnesses, then one
of the solemnities required by law would be lacking. Should the
second be adopted and "of others" construed as meaning the
other witnesses to the will, then the law would have been
complied with in this respect.
Including the concomitant words, the controverted phrase results
thus: "each of us signed these presents in the presence of others
and of the testatrix."
If we should omit the words "of others and," the expression would
be reduced to "each of us signed these presents in the presence
of the testatrix," and the statement that the witnesses signed each
in the presence of the others would be lacking. But as a matter of
fact, these words "of others and" are present. Then, what for are
they there? Is it to say that the witnesses signed in the presence
of other persons foreign to the execution of the will, which is
completely useless and to no purpose in the case, or was it for
some useful, rational, necessary object, such as that of making it
appear that the witnesses signed the will each in the presence of
the others? The first theory presupposes that the one who drew
the will, who is Attorney Francisco, was an unreasonable man,
which is an inadmissible hypothesis, being repugnant to the facts
shown by the record. The second theory is the most obvious,
logical and reasonable under the circumstances. It is true that the
expression proved to be deficient. The deficiency may have been
caused by the drawer of the will or by the typist. If by the typist,
then it must be presumed to have been merely accidental. If by
the drawer, it is explainable taking into account that Spanish is not
only not the native language of the Filipinos, who, in general, still
speak until nowadays their own dialects, but also that such
language is not even the only official language since several years
ago.
In Re will of Abangan (40 Phil., 476), this court said:
The object of the solemnities surrounding the execution
of wills is to close the door against bad faith and fraud, to
avoid substitution of wills and testaments and to
guarantee their truth and authenticity. Therefore the laws
on this subject should be interpreted in such a way as to
attain these primordial ends. But, on the 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 The judgment appealed from if affirmed with costs against the
Phil., 405), decided by this court and invoked by the appellants, appellants. So ordered
refers so far as pertinent to the point herein at issue, to an
attestation clause wherein the statement that the witnesses
signed the will in the presence of each other is totally absent. In
the case at bar, there is the expression "in the presence of
others" whose reasonable interpretation is, as we have said, "in
the presence of the other witnesses." We do not find any party
between the present case and that of Re Estate of Geronima Uy
Coque above cited.
Finally, we will take up the question submitted by the opponents
as to the alleged insufficiency of the evidence to show that the
attesting witnesses Damian Crisostomo and Sotero Dumaual
were present at the execution of the will in controversy. Although
this point is raised in the first assignment of error made by the
appellants, and not in the second, it is discussed in this place
because it refers to the very fact of attestation. However, we do
not believe it necessary to analyze in detail the evidence of both
parties on this particular point. The evidence leads us to the
conclusion that the two witnesses aforementioned were present at
the execution and signing of the will. Such is also the conclusion
of the trial judge who, in this respect, states the following, in his
decision:
As to the question of whether or not the testatrix and witnesses
signed the document Exhibit A in accordance with the provisions
of law on the matter, that is, whether or not the testatrix signed the
will, or caused it to be signed, in the presence of the witnesses,
and the latter in turn signed in her presence and that of each
other, the court, after observing the demeanor of the witnesses for
both parties, is of the opinion that those for the petitioner spoke
the truth. It is neither probable nor likely that a man versed in the
law, such as Attorney Francisco, who was present at the
execution of the will in question, and to whose conscientiousness
in the matter of compliance with all the extrinsic formalities of the
execution of a will, and to nothing else, was due the fact that the
testatrix had cancelled her former will (Exhibit B) and had new one
(Exhibit A) prepared and executed, should have consented the
omission of formality compliance with which would have required
little or no effort; namely, that of seeing to it that the testatrix and
the attesting witnesses were all present when their respective
signatures were affixed to the will." And the record does not
furnish us sufficient ground for deviating from the line reasoning
and findings of the trial judge.
In conclusion we hold that the assignments of error made by the
appellants are not supported by the evidence of record.
G.R. No. 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
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
* of respondent. Constantino as the petitioner in Special Proceedings No. 591
ACEB
After the petition was set for hearing in the lower court on June
25, 1984 the oppositors (respondents herein Virginia A.
Fernandez, a legally adopted daughter of tile deceased and the
latter's widow Rosa Diongson Vda. de Acain filed a motion to
dismiss on the following grounds for the petitioner has no legal
capacity to institute these proceedings; (2) he is merely a
universal heir and (3) the widow and the adopted daughter have
been pretirited. (Rollo, p. 158). Said motion was denied by the trial
judge.
After the denial of their subsequent motion for reconsideration in
the lower court, respondents filed with the Supreme Court a
petition for certiorari and prohibition with preliminary injunction
which was subsequently referred to the Intermediate Appellate
Court by Resolution of the Court dated March 11, 1985
(Memorandum for Petitioner, p. 3; Rollo, p. 159).
Respondent Intermediate Appellate Court granted private
respondents' petition and ordered the trial court to dismiss the
petition for the probate of the will of Nemesio Acain in Special
Proceedings No. 591 ACEB
His motion for reconsideration having been denied, petitioner filed
this present petition for the review of respondent Court's decision
on December 18, 1985 (Rollo, p. 6). Respondents' Comment was
filed on June 6, 1986 (Rollo, p. 146).
On August 11, 1986 the Court resolved to give due course to the
petition (Rollo, p. 153). Respondents' Memorandum was filed on
September 22, 1986 (Rollo, p. 157); the Memorandum for
petitioner was filed on September 29, 1986 (Rollo, p. 177).
Petitioner raises the following issues (Memorandum for petitioner,
p. 4):
(A) The petition filed in AC-G.R. No. 05744 for
certiorari and prohibition with preliminary
injunction is not the proper remedy under the
premises;
(B) The authority of the probate courts is limited
only to inquiring into the extrinsic validity of the
will sought to be probated and it cannot pass
upon the intrinsic validity thereof before it is
admitted to probate;
(C) The will of Nemesio Acain is valid and must
therefore, be admitted to probate. The
preterition mentioned in Article 854 of the New
Civil Code refers to preterition of "compulsory
heirs in the direct line," and does not apply to
private respondents who are not compulsory
heirs in the direct line; their omission shall not
annul the institution of heirs;
(D) DICAT TESTATOR ET MERIT LEX. What
the testator says will be the law;
(E) There may be nothing in Article 854 of the
New Civil Code, that suggests that mere
institution of a universal heir in the will would
give the heir so instituted a share in the
inheritance but there is a definite distinct
intention of the testator in the case at bar,
explicitly expressed in his will. This is what
matters and should be in violable.
(F) As an instituted heir, petitioner has the legal
interest and standing to file the petition in Sp.
Proc. No. 591 ACEB for probate of the will of
Nemesio Acain and
(G) Article 854 of the New Civil Code is a bill of
attainder. It is therefore unconstitutional and
ineffectual.
The pivotal issue in this case is whether or not private
respondents have been pretirited.
Article 854 of the Civil Code provides:
 Art. 854. The preterition or omission of one,
some, or all of the compulsory heirs in the direct
line, whether living at the time of the execution
of the will or born after the death of the testator,
shall annul the institution of heir; but the
devisees and legacies shall be valid insofar as
they are not; inofficious.
If the omitted compulsory heirs should die
before the testator, the institution shall he
effectual, without prejudice to the right of
representation.
Preterition consists in the omission in the testator's will of the
forced heirs or anyone of them either because they are not
mentioned therein, or, though mentioned, they are neither
instituted as heirs nor are expressly disinherited (Nuguid v.
Nuguid, 17 SCRA 450 [1966]; Maninang v. Court of Appeals, 114
SCRA 478 [1982]). Insofar as the widow is concerned, Article 854
of the Civil Code may not apply as she does not ascend or
descend from the testator, although she is a compulsory heir.
Stated otherwise, even if the surviving spouse is a compulsory
heir, there is no preterition even if she is omitted from the
inheritance, for she is not in the direct line. (Art. 854, Civil code)
however, the same thing cannot be said of the other respondent
Virginia A. Fernandez, whose legal adoption by the testator has
not been questioned by petitioner (.Memorandum for the
Petitioner, pp. 8-9). Under Article 39 of P.D. No. 603, known as
the Child and Youth Welfare Code, adoption gives to the adopted
person the same rights and duties as if he were a legitimate child
of the adopter and makes the adopted person a legal heir of the
adopter. It cannot be denied that she has totally omitted and
preterited in the will of the testator and that both adopted child and
the widow were deprived of at least their legitime. Neither can it
be denied that they were not expressly disinherited. Hence, this is
a clear case of preterition of the legally adopted child.
Pretention annuls the institution of an heir and annulment throws
open to intestate succession the entire inheritance including "la
porcion libre (que) no hubiese dispuesto en virtual de legado
mejora o donacion" Maniesa as cited in Nuguid v. Nuguid, supra;
Maninang v. Court of Appeals, 114 SCRA [1982]). The only
provisions which do not result in intestacy are the legacies and
devises made in the will for they should stand valid and respected,
except insofar as the legitimes are concerned.
The universal institution of petitioner together with his brothers
and sisters to the entire inheritance of the testator results in totally
abrogating the will because the nullification of such institution of
universal heirs-without any other testamentary disposition in the
will-amounts to a declaration that nothing at all was written.
Carefully worded and in clear terms, Article 854 of the Civil Code
offers no leeway for inferential interpretation (Nuguid v. Nuguid),
supra. No legacies nor devises having been provided in the will
the whole property of the deceased has been left by universal title
to petitioner and his brothers and sisters. The effect of annulling
the "Institution of heirs will be, necessarily, the opening of a total
intestacy (Neri v. Akutin, 74 Phil. 185 [1943]) except that proper
legacies and devises must, as already stated above, be
respected.
We now deal with another matter. In order that a person may be
allowed to intervene in a probate proceeding he must have an
interest iii the estate, or in the will, or in the property to be affected
by it either as executor or as a claimant of the estate and an
interested party is one who would be benefited by the estate such
as an heir or one who has a claim against the estate like a creditor
(Sumilang v. Ramagosa, 21 SCRA 1369/1967). Petitioner is not
the appointed executor, neither a devisee or a legatee there being
no mention in the testamentary disposition of any gift of an
individual item of personal or real property he is called upon to
receive (Article 782, Civil Code). At the outset, he appears to have
an interest in the will as an heir, defined under Article 782 of the
Civil Code as a person called to the succession either by the
provision of a will or by operation of law. However, intestacy
having resulted from the preterition of respondent adopted child
and the universal institution of heirs, petitioner is in effect not an
heir of the testator. He has no legal standing to petition for the
probate of the will left by the deceased and Special Proceedings
No. 591 A-CEB must be dismissed.
As a general rule certiorari cannot be a substitute for appeal,
except when the questioned order is an oppressive exercise of j
judicial authority (People v. Villanueva, 110 SCRA 465 [1981];
Vda. de Caldito v. Segundo, 117 SCRA 573 [1982]; Co Chuan
Seng v. Court of Appeals, 128 SCRA 308 [1984]; and Bautista v.
Sarmiento, 138 SCRA 587 [1985]). It is axiomatic that the
remedies of certiorari and prohibition are not available where the
petitioner has the remedy of appeal or some other plain, speedy
and adequate remedy in the course of law (DD Comendador
Construction Corporation v. Sayo (118 SCRA 590 [1982]). They
are, however, proper remedies to correct a grave abuse of
discretion of the trial court in not dismissing a case where the
dismissal is founded on valid grounds (Vda. de Bacang v. Court of
Appeals, 125 SCRA 137 [1983]).
Special Proceedings No. 591 ACEB is for the probate of a will. As
stated by respondent Court, the general rule is that the probate
court's authority is limited only to the extrinsic validity of the will,
the due execution thereof, the testator's testamentary capacity
and the compliance with the requisites or solemnities prescribed
by law. The intrinsic validity of the will normally comes only after
the Court has declared that the will has been duly authenticated.
Said court at this stage of the proceedings is not called upon to
rule on the intrinsic validity or efficacy of the provisions of the will
(Nuguid v. Nuguid, 17 SCRA 449 [1966]; Sumilang v.
Ramagosa, supra; Maninang v. Court of Appeals, 114 SCRA 478
[1982]; Cayetano v. Leonides, 129 SCRA 522 [1984]; and
Nepomuceno v. Court of Appeals, 139 SCRA 206 [1985]).
The rule, however, is not inflexible and absolute. Under
exceptional circumstances, the probate court is not powerless to
do what the situation constrains it to do and pass upon certain
provisions of the will (Nepomuceno v. Court of Appeals, supra). In
Nuguid v. Nuguid the oppositors to the probate moved to dismiss
on the ground of absolute preteriton The probate court acting on
the motion held that the will in question was a complete nullity and
dismissed the petition without costs. On appeal the Supreme
Court upheld the decision of the probate court, induced by
practical considerations. The Court said:
We pause to reflect. If the case were to be
remanded for probate of the will, nothing will be
gained. On the contrary, this litigation will be
protracted. And for aught that appears in the
record, in the event of probate or if the court
rejects the will, probability exists that the case
will come up once again before us on the same
issue of the intrinsic validity or nullity of the will.
Result: waste of time, effort, expense, plus
added anxiety. These are the practical
considerations that induce us to a belief that we
might as well meet head-on the issue of the
validity of the provisions of the will in question.
After all there exists a justiciable controversy
crying for solution.
In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to
dismiss the petition by the surviving spouse was grounded on
petitioner's lack of legal capacity to institute the proceedings which
was fully substantiated by the evidence during the hearing held in
connection with said motion. The Court upheld the probate court's
order of dismissal.
In Cayetano v. Leonides, supra one of the issues raised in the
motion to dismiss the petition deals with the validity of the
provisions of the will. Respondent Judge allowed the probate of
the will. The Court held that as on its face the will appeared to
have preterited the petitioner the respondent judge should have
denied its probate outright. Where circumstances demand that
intrinsic validity of testamentary provisions be passed upon even
before the extrinsic validity of the will is resolved, the probate
court should meet the issue. (Nepomuceno v. Court of
Appeals, supra; Nuguid v. Nuguid, supra).

In the instant case private respondents filed a motion to dismiss

the petition in Sp. Proceedings No. 591 ACEB of the Regional
Trial Court of Cebu on the following grounds: (1) petitioner has no
legal capacity to institute the proceedings; (2) he is merely a
universal heir; and (3) the widow and the adopted daughter have
been preterited (Rollo, p. 158). It was denied by the trial court in
an order dated January 21, 1985 for the reason that "the grounds
for the motion to dismiss are matters properly to be resolved after
a hearing on the issues in the course of the trial on the merits of
the case (Rollo, p. 32). A subsequent motion for reconsideration
was denied by the trial court on February 15, 1985 (Rollo, p. 109).

For private respondents to have tolerated the probate of the will

and allowed the case to progress when on its face the will
appears to be intrinsically void as petitioner and his brothers and
sisters were instituted as universal heirs coupled with the obvious
fact that one of the private respondents had been preterited would
have been an exercise in futility. It would have meant a waste of
time, effort, expense, plus added futility. The trial court could have
denied its probate outright or could have passed upon the intrinsic
validity of the testamentary provisions before the extrinsic validity
of the will was resolved (Cayetano v. Leonides, supra; Nuquid v.
Nuguid, supra. The remedies of certiorari and prohibition were
properly availed of by private respondents.

Thus, this Court ruled that where the grounds for dismissal are
indubitable, the defendants had the right to resort to the more
speedy, and adequate remedies of certiorari and prohibition to
correct a grave abuse of discretion, amounting to lack of
jurisdiction, committed by the trial court in not dismissing the case,
(Vda. de Bacang v. Court of Appeals, supra) and even assuming
the existence of the remedy of appeal, the Court harkens to the
rule that in the broader interests of justice, a petition for certiorari
may be entertained, particularly where appeal would not afford
speedy and adequate relief. (Maninang Court of Appeals, supra).

PREMISES CONSIDERED, the petition is hereby DENIED for

lack of merit and the questioned decision of respondent Court of
Appeals promulgated on August 30, 1985 and its Resolution
dated October 23, 1985 are hereby AFFIRMED.

SO ORDERED.
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.
Ozamiz & Capistrano for petitioners.
Gullas, Leuterio, Tanner & Laput for 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.
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.
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.
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
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 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.
DONATO LAJOM, petitioner,
vs.
HON. JOSE N. LEUTERIO, Judge of the Court of First
Instance of Nueva Ecija, and RAFAEL VIOLA, respondents.
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 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:
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 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 of its filing, he did not know of the
existence of said property. Hence, the same was not in question
in case No. 8077, and was not covered by the decision therein
rendered and subsequently affirmed by the Supreme Court in
Case No. L-6457.
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.
Without prejudice, therefore, to the institution of the corresponding
intestate proceedings by the proper party, the petition herein
should, therefore, be, as it is hereby, denied, with costs against
the petitioner. It is so ordered.