G.R. No. L-16749 January 31, 1963 about twenty-eight years ago, and who is now residing at No.
eight years ago, and who is now residing at No. 665 Rodger
IN THE MATTER OF THE TESTATE ESTATE OF EDWARD E. CHRISTENSEN,
DECEASED.
ADOLFO C. AZNAR, Executor and LUCY CHRISTENSEN, Heir of the deceased,
Executor and Heir-appellees,
vs.
HELEN CHRISTENSEN GARCIA, oppositor-appellant.
M. R. Sotelo for executor and heir-appellees.
Leopoldo M. Abellera and Jovito Salonga for oppositor-appellant.
LABRADOR, J.:
This is an appeal from a decision of the Court of First Instance of Davao,
Hon. Vicente N. Cusi, Jr., presiding, in Special Proceeding No. 622 of said
court, dated September 14, 1949, approving among things the final
accounts of the executor, directing the executor to reimburse Maria Lucy
Christensen the amount of P3,600 paid by her to Helen Christensen Garcia
as her legacy, and declaring Maria Lucy Christensen entitled to the residue
of the property to be enjoyed during her lifetime, and in case of death
without issue, one-half of said residue to be payable to Mrs. Carrie Louise C.
Borton, etc., in accordance with the provisions of the will of the testator
Edward E. Christensen. The will was executed in Manila on March 5, 1951
and contains the following provisions:
3. I declare ... that I have but ONE (1) child, named MARIA LUCY
CHRISTENSEN (now Mrs. Bernard Daney), who was born in the Philippines
Young Village, Los Angeles, California, U.S.A.
4. I further declare that I now have no living ascendants, and no
descendants except my above named daughter, MARIA LUCY CHRISTENSEN
DANEY.
xxx xxx xxx
7. I give, devise and bequeath unto MARIA HELEN CHRISTENSEN, now
married to Eduardo Garcia, about eighteen years of age and who,
notwithstanding the fact that she was baptized Christensen, is not in any
way related to me, nor has she been at any time adopted by me, and who,
from all information I have now resides in Egpit, Digos, Davao, Philippines,
the sum of THREE THOUSAND SIX HUNDRED PESOS (P3,600.00), Philippine
Currency the same to be deposited in trust for the said Maria Helen
Christensen with the Davao Branch of the Philippine National Bank, and paid
to her at the rate of One Hundred Pesos (P100.00), Philippine Currency per
month until the principal thereof as well as any interest which may have
accrued thereon, is exhausted..
xxx xxx xxx
12. I hereby give, devise and bequeath, unto my well-beloved daughter, the
said MARIA LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney), now residing
as aforesaid at No. 665 Rodger Young Village, Los Angeles, California, U.S.A.,
all the income from the rest, remainder, and residue of my property and
estate, real, personal and/or mixed, of whatsoever kind or character, and
wheresoever situated, of which I may be possessed at my death and which
may have come to me from any source whatsoever, during her lifetime: ....
It is in accordance with the above-quoted provisions that the executor in his The most important assignments of error are as follows:
final account and project of partition ratified the payment of only P3,600 to
Helen Christensen Garcia and proposed that the residue of the estate be
transferred to his daughter, Maria Lucy Christensen. I

Opposition to the approval of the project of partition was filed by Helen THE LOWER COURT ERRED IN IGNORING THE DECISION OF THE HONORABLE
Christensen Garcia, insofar as it deprives her (Helen) of her legitime as an SUPREME COURT THAT HELEN IS THE ACKNOWLEDGED NATURAL CHILD OF
acknowledged natural child, she having been declared by Us in G.R. Nos. L- EDWARD E. CHRISTENSEN AND, CONSEQUENTLY, IN DEPRIVING HER OF HER
11483-84 an acknowledged natural child of the deceased Edward E. JUST SHARE IN THE INHERITANCE.
Christensen. The legal grounds of opposition are (a) that the distribution
should be governed by the laws of the Philippines, and (b) that said order of
distribution is contrary thereto insofar as it denies to Helen Christensen, one II
of two acknowledged natural children, one-half of the estate in full
ownership. In amplification of the above grounds it was alleged that the law
that should govern the estate of the deceased Christensen should not be THE LOWER COURT ERRED IN ENTIRELY IGNORING AND/OR FAILING TO
the internal law of California alone, but the entire law thereof because RECOGNIZE THE EXISTENCE OF SEVERAL FACTORS, ELEMENTS AND
several foreign elements are involved, that the forum is the Philippines and CIRCUMSTANCES CALLING FOR THE APPLICATION OF INTERNAL LAW.
even if the case were decided in California, Section 946 of the California Civil
Code, which requires that the domicile of the decedent should apply, should
be applicable. It was also alleged that Maria Helen Christensen having been
III
declared an acknowledged natural child of the decedent, she is deemed for
all purposes legitimate from the time of her birth.

THE LOWER COURT ERRED IN FAILING TO RECOGNIZE THAT UNDER

INTERNATIONAL LAW, PARTICULARLY UNDER THE RENVOI DOCTRINE, THE
The court below ruled that as Edward E. Christensen was a citizen of the
INTRINSIC VALIDITY OF THE TESTAMENTARY DISPOSITION OF THE
United States and of the State of California at the time of his death, the
DISTRIBUTION OF THE ESTATE OF THE DECEASED EDWARD E. CHRISTENSEN
successional rights and intrinsic validity of the provisions in his will are to be
SHOULD BE GOVERNED BY THE LAWS OF THE PHILIPPINES.
governed by the law of California, in accordance with which a testator has
the right to dispose of his property in the way he desires, because the right
of absolute dominion over his property is sacred and inviolable (In re
IV
McDaniel's Estate, 77 Cal. Appl. 2d 877, 176 P. 2d 952, and In re Kaufman,
117 Cal. 286, 49 Pac. 192, cited in page 179, Record on Appeal). Oppositor
Maria Helen Christensen, through counsel, filed various motions for
THE LOWER COURT ERRED IN NOT DECLARING THAT THE SCHEDULE OF
reconsideration, but these were denied. Hence, this appeal.
DISTRIBUTION SUBMITTED BY THE EXECUTOR IS CONTRARY TO THE
PHILIPPINE LAWS.

V
THE LOWER COURT ERRED IN NOT DECLARING THAT UNDER THE PHILIPPINE
LAWS HELEN CHRISTENSEN GARCIA IS ENTITLED TO ONE-HALF (1/2) OF THE
ESTATE IN FULL OWNERSHIP.
There is no question that Edward E. Christensen was a citizen of the United
States and of the State of California at the time of his death. But there is
also no question that at the time of his death he was domiciled in the
Philippines, as witness the following facts admitted by the executor himself
in appellee's brief:
In the proceedings for admission of the will to probate, the facts of record
show that the deceased Edward E. Christensen was born on November 29,
1875 in New York City, N.Y., U.S.A.; his first arrival in the Philippines, as an
appointed school teacher, was on July 1, 1901, on board the U.S. Army
Transport "Sheridan" with Port of Embarkation as the City of San Francisco,
in the State of California, U.S.A. He stayed in the Philippines until 1904.
In December, 1904, Mr. Christensen returned to the United States and
stayed there for the following nine years until 1913, during which time he
resided in, and was teaching school in Sacramento, California.
Mr. Christensen's next arrival in the Philippines was in July of the year 1913.
However, in 1928, he again departed the Philippines for the United States
and came back here the following year, 1929. Some nine years later, in
1938, he again returned to his own country, and came back to the
Philippines the following year, 1939.
Wherefore, the parties respectfully pray that the foregoing stipulation of
facts be admitted and approved by this Honorable Court, without prejudice
to the parties adducing other evidence to prove their case not covered by
this stipulation of facts. 1äwphï1.ñët
Being an American citizen, Mr. Christensen was interned by the Japanese
Military Forces in the Philippines during World War II. Upon liberation, in
April 1945, he left for the United States but returned to the Philippines in
December, 1945. Appellees Collective Exhibits "6", CFI Davao, Sp. Proc. 622,
as Exhibits "AA", "BB" and "CC-Daney"; Exhs. "MM", "MM-l", "MM-2-Daney"
and p. 473, t.s.n., July 21, 1953.)
In April, 1951, Edward E. Christensen returned once more to California
shortly after the making of his last will and testament (now in question
herein) which he executed at his lawyers' offices in Manila on March 5,
1951. He died at the St. Luke's Hospital in the City of Manila on April 30,
1953. (pp. 2-3)
In arriving at the conclusion that the domicile of the deceased is the
Philippines, we are persuaded by the fact that he was born in New York,
migrated to California and resided there for nine years, and since he came
to the Philippines in 1913 he returned to California very rarely and only for
short visits (perhaps to relatives), and considering that he appears never to
have owned or acquired a home or properties in that state, which would
indicate that he would ultimately abandon the Philippines and make home
in the State of California.
Sec. 16. Residence is a term used with many shades of meaning from mere
temporary presence to the most permanent abode. Generally, however, it is
used to denote something more than mere physical presence. (Goodrich on
Conflict of Laws, p. 29)
As to his citizenship, however, We find that the citizenship that he acquired
in California when he resided in Sacramento, California from 1904 to 1913,
was never lost by his stay in the Philippines, for the latter was a territory of
the United States (not a state) until 1946 and the deceased appears to have
considered himself as a citizen of California by the fact that when he
executed his will in 1951 he declared that he was a citizen of that State; so
that he appears never to have intended to abandon his California citizenship
by acquiring another. This conclusion is in accordance with the following
principle expounded by Goodrich in his Conflict of Laws.
The terms "'residence" and "domicile" might well be taken to mean the
same thing, a place of permanent abode. But domicile, as has been shown,
has acquired a technical meaning. Thus one may be domiciled in a place
where he has never been. And he may reside in a place where he has no
domicile. The man with two homes, between which he divides his time,
certainly resides in each one, while living in it. But if he went on business
which would require his presence for several weeks or months, he might
properly be said to have sufficient connection with the place to be called a
resident. It is clear, however, that, if he treated his settlement as continuing
only for the particular business in hand, not giving up his former "home," he
could not be a domiciled New Yorker. Acquisition of a domicile of choice
requires the exercise of intention as well as physical presence. "Residence
simply requires bodily presence of an inhabitant in a given place, while
domicile requires bodily presence in that place and also an intention to
make it one's domicile." Residence, however, is a term used with many
shades of meaning, from the merest temporary presence to the most
permanent abode, and it is not safe to insist that any one use et the only
proper one. (Goodrich, p. 29)
The law that governs the validity of his testamentary dispositions is defined
in Article 16 of the Civil Code of the Philippines, which is as follows:
ART. 16. Real property as well as personal property is subject to the law of
the country where it is situated.
However, intestate and testamentary successions, both with respect to the
order of succession and to the amount of successional rights and to the
intrinsic validity of testamentary provisions, shall be regulated by the
national law of the person whose succession is under consideration,
whatever may be the nature of the property and regardless of the country
where said property may be found.
The application of this article in the case at bar requires the determination
of the meaning of the term "national law" is used therein.
There is no single American law governing the validity of testamentary
provisions in the United States, each state of the Union having its own
private law applicable to its citizens only and in force only within the state.
The "national law" indicated in Article 16 of the Civil Code above quoted can
not, therefore, possibly mean or apply to any general American law. So it
can refer to no other than the private law of the State of California.
The next question is: What is the law in California governing the disposition
of personal property? The decision of the court below, sustains the
contention of the executor-appellee that under the California Probate Code,
a testator may dispose of his property by will in the form and manner he
desires, citing the case of Estate of McDaniel, 77 Cal. Appl. 2d 877, 176 P. 2d
952. But appellant invokes the provisions of Article 946 of the Civil Code of
California, which is as follows:
If there is no law to the contrary, in the place where personal property is
situated, it is deemed to follow the person of its owner, and is governed by
the law of his domicile.
The existence of this provision is alleged in appellant's opposition and is not
denied. We have checked it in the California Civil Code and it is there.
Appellee, on the other hand, relies on the case cited in the decision and
testified to by a witness. (Only the case of Kaufman is correctly cited.) It is
argued on executor's behalf that as the deceased Christensen was a citizen
of the State of California, the internal law thereof, which is that given in the
abovecited case, should govern the determination of the validity of the
testamentary provisions of Christensen's will, such law being in force in the
State of California of which Christensen was a citizen. Appellant, on the
other hand, insists that Article 946 should be applicable, and in accordance
therewith and following the doctrine of the renvoi, the question of the
validity of the testamentary provision in question should be referred back to
the law of the decedent's domicile, which is the Philippines.
The theory of doctrine of renvoi has been defined by various authors, thus:
The problem has been stated in this way: "When the Conflict of Laws rule of
the forum refers a jural matter to a foreign law for decision, is the reference
to the purely internal rules of law of the foreign system; i.e., to the totality
of the foreign law minus its Conflict of Laws rules?"
On logic, the solution is not an easy one. The Michigan court chose to accept
the renvoi, that is, applied the Conflict of Laws rule of Illinois which referred
the matter back to Michigan law. But once having determined the the
Conflict of Laws principle is the rule looked to, it is difficult to see why the
reference back should not have been to Michigan Conflict of Laws. This
would have resulted in the "endless chain of references" which has so often
been criticized be legal writers. The opponents of the renvoi would have
looked merely to the internal law of Illinois, thus rejecting the renvoi or the
reference back. Yet there seems no compelling logical reason why the
original reference should be the internal law rather than to the Conflict of
Laws rule. It is true that such a solution avoids going on a merry-go-round,
but those who have accepted the renvoi theory avoid this inextricabilis
circulas by getting off at the second reference and at that point applying
internal law. Perhaps the opponents of the renvoi are a bit more consistent
for they look always to internal law as the rule of reference.
Strangely enough, both the advocates for and the objectors to the renvoi
plead that greater uniformity will result from adoption of their respective
views. And still more strange is the fact that the only way to achieve
uniformity in this choice-of-law problem is if in the dispute the two states
whose laws form the legal basis of the litigation disagree as to whether the
renvoi should be accepted. If both reject, or both accept the doctrine, the
result of the litigation will vary with the choice of the forum. In the case
stated above, had the Michigan court rejected the renvoi, judgment would
have been against the woman; if the suit had been brought in the Illinois
courts, and they too rejected the renvoi, judgment would be for the
woman. The same result would happen, though the courts would switch
with respect to which would hold liability, if both courts accepted the
renvoi.
The Restatement accepts the renvoi theory in two instances: where the title
to land is in question, and where the validity of a decree of divorce is
challenged. In these cases the Conflict of Laws rule of the situs of the land,
or the domicile of the parties in the divorce case, is applied by the forum,
but any further reference goes only to the internal law. Thus, a person's title
to land, recognized by the situs, will be recognized by every court; and every
divorce, valid by the domicile of the parties, will be valid everywhere.
(Goodrich, Conflict of Laws, Sec. 7, pp. 13-14.)
X, a citizen of Massachusetts, dies intestate, domiciled in France, leaving
movable property in Massachusetts, England, and France. The question
arises as to how this property is to be distributed among X's next of kin.
Assume (1) that this question arises in a Massachusetts court. There the rule
of the conflict of laws as to intestate succession to movables calls for an
application of the law of the deceased's last domicile. Since by hypothesis
X's last domicile was France, the natural thing for the Massachusetts court
to do would be to turn to French statute of distributions, or whatever
corresponds thereto in French law, and decree a distribution accordingly. An
examination of French law, however, would show that if a French court
were called upon to determine how this property should be distributed, it
would refer the distribution to the national law of the deceased, thus
applying the Massachusetts statute of distributions. So on the surface of
things the Massachusetts court has open to it alternative course of action:
(a) either to apply the French law is to intestate succession, or (b) to resolve
itself into a French court and apply the Massachusetts statute of
distributions, on the assumption that this is what a French court would do. If
it accepts the so-called renvoi doctrine, it will follow the latter course, thus
applying its own law.
This is one type of renvoi. A jural matter is presented which the conflict-of-
laws rule of the forum refers to a foreign law, the conflict-of-laws rule of
which, in turn, refers the matter back again to the law of the forum. This is
renvoi in the narrower sense. The German term for this judicial process is
'Ruckverweisung.'" (Harvard Law Review, Vol. 31, pp. 523-571.)
After a decision has been arrived at that a foreign law is to be resorted to as
governing a particular case, the further question may arise: Are the rules as
to the conflict of laws contained in such foreign law also to be resorted to?
This is a question which, while it has been considered by the courts in but a
few instances, has been the subject of frequent discussion by textwriters
and essayists; and the doctrine involved has been descriptively designated
by them as the "Renvoyer" to send back, or the "Ruchversweisung", or the
"Weiterverweisung", since an affirmative answer to the question postulated
and the operation of the adoption of the foreign law in toto would in many
cases result in returning the main controversy to be decided according to
the law of the forum. ... (16 C.J.S. 872.)
Another theory, known as the "doctrine of renvoi", has been advanced. The
theory of the doctrine of renvoi is that the court of the forum, in
determining the question before it, must take into account the whole law of
the other jurisdiction, but also its rules as to conflict of laws, and then apply
the law to the actual question which the rules of the other jurisdiction
prescribe. This may be the law of the forum. The doctrine of the renvoi has
generally been repudiated by the American authorities. (2 Am. Jur. 296)
The scope of the theory of renvoi has also been defined and the reasons for
its application in a country explained by Prof. Lorenzen in an article in the
Yale Law Journal, Vol. 27, 1917-1918, pp. 529-531. The pertinent parts of
the article are quoted herein below:
The recognition of the renvoi theory implies that the rules of the conflict of
laws are to be understood as incorporating not only the ordinary or internal
law of the foreign state or country, but its rules of the conflict of laws as
well. According to this theory 'the law of a country' means the whole of its
law.
xxx xxx xxx
Von Bar presented his views at the meeting of the Institute of International
Law, at Neuchatel, in 1900, in the form of the following theses:
(1) Every court shall observe the law of its country as regards the application
of foreign laws.
(2) Provided that no express provision to the contrary exists, the court shall
respect:
(a) The provisions of a foreign law which disclaims the right to bind its
nationals abroad as regards their personal statute, and desires that said
personal statute shall be determined by the law of the domicile, or even by
the law of the place where the act in question occurred.
(b) The decision of two or more foreign systems of law, provided it be
certain that one of them is necessarily competent, which agree in
attributing the determination of a question to the same system of law.
xxx xxx xxx
If, for example, the English law directs its judge to distribute the personal
estate of an Englishman who has died domiciled in Belgium in accordance
with the law of his domicile, he must first inquire whether the law of
Belgium would distribute personal property upon death in accordance with
the law of domicile, and if he finds that the Belgian law would make the
distribution in accordance with the law of nationality — that is the English
law — he must accept this reference back to his own law.
We note that Article 946 of the California Civil Code is its conflict of laws
rule, while the rule applied in In re Kaufman, Supra, its internal law. If the
law on succession and the conflict of laws rules of California are to be
enforced jointly, each in its own intended and appropriate sphere, the
principle cited In re Kaufman should apply to citizens living in the State, but
Article 946 should apply to such of its citizens as are not domiciled in
California but in other jurisdictions. The rule laid down of resorting to the
law of the domicile in the determination of matters with foreign element
involved is in accord with the general principle of American law that the
domiciliary law should govern in most matters or rights which follow the
person of the owner.
When a man dies leaving personal property in one or more states, and
leaves a will directing the manner of distribution of the property, the law of
the state where he was domiciled at the time of his death will be looked to
in deciding legal questions about the will, almost as completely as the law of
situs is consulted in questions about the devise of land. It is logical that,
since the domiciliary rules control devolution of the personal estate in case
of intestate succession, the same rules should determine the validity of an
attempted testamentary dispostion of the property. Here, also, it is not that
the domiciliary has effect beyond the borders of the domiciliary state. The
rules of the domicile are recognized as controlling by the Conflict of Laws
rules at the situs property, and the reason for the recognition as in the case
of intestate succession, is the general convenience of the doctrine. The New
York court has said on the point: 'The general principle that a dispostiton of
a personal property, valid at the domicile of the owner, is valid anywhere, is
one of the universal application. It had its origin in that international comity
which was one of the first fruits of civilization, and it this age, when business
intercourse and the process of accumulating property take but little notice
of boundary lines, the practical wisdom and justice of the rule is more
apparent than ever. (Goodrich, Conflict of Laws, Sec. 164, pp. 442-443.)
Appellees argue that what Article 16 of the Civil Code of the Philippines
pointed out as the national law is the internal law of California. But as above
explained the laws of California have prescribed two sets of laws for its
citizens, one for residents therein and another for those domiciled in other
jurisdictions. Reason demands that We should enforce the California
internal law prescribed for its citizens residing therein, and enforce the
conflict of laws rules for the citizens domiciled abroad. If we must enforce
the law of California as in comity we are bound to go, as so declared in
Article 16 of our Civil Code, then we must enforce the law of California in
accordance with the express mandate thereof and as above explained, i.e.,
apply the internal law for residents therein, and its conflict-of-laws rule for
those domiciled abroad.
It is argued on appellees' behalf that the clause "if there is no law to the
contrary in the place where the property is situated" in Sec. 946 of the
California Civil Code refers to Article 16 of the Civil Code of the Philippines governed by the Philippine Law, the domicile, pursuant to Art. 946 of the
and that the law to the contrary in the Philippines is the provision in said Civil Code of California, not by the internal law of California..
Article 16 that the national law of the deceased should govern. This
contention can not be sustained. As explained in the various authorities
cited above the national law mentioned in Article 16 of our Civil Code is the WHEREFORE, the decision appealed from is hereby reversed and the case
law on conflict of laws in the California Civil Code, i.e., Article 946, which returned to the lower court with instructions that the partition be made as
authorizes the reference or return of the question to the law of the the Philippine law on succession provides. Judgment reversed, with costs
testator's domicile. The conflict of laws rule in California, Article 946, Civil against appellees.
Code, precisely refers back the case, when a decedent is not domiciled in
California, to the law of his domicile, the Philippines in the case at bar. The
court of the domicile can not and should not refer the case back to Padilla, Bautista Angelo, Concepcion, Reyes, Barrera, Paredes, Dizon, Regala
California; such action would leave the issue incapable of determination and Makalintal, JJ., concur.
because the case will then be like a football, tossed back and forth between
the two states, between the country of which the decedent was a citizen Bengzon, C.J., took no part.
and the country of his domicile. The Philippine court must apply its own law
as directed in the conflict of laws rule of the state of the decedent, if the
question has to be decided, especially as the application of the internal law
of California provides no legitime for children while the Philippine law, Arts.
887(4) and 894, Civil Code of the Philippines, makes natural children legally
acknowledged forced heirs of the parent recognizing them.

Today is Sunday, September 09, 2018

The Philippine cases (In re Estate of Johnson, 39 Phil. 156; Riera vs.
Palmaroli, 40 Phil. 105; Miciano vs. Brimo, 50 Phil. 867; Babcock Templeton
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vs. Rider Babcock, 52 Phil. 130; and Gibbs vs. Government, 59 Phil. 293.)
cited by appellees to support the decision can not possibly apply in the case
at bar, for two important reasons, i.e., the subject in each case does not
appear to be a citizen of a state in the United States but with domicile in the
Philippines, and it does not appear in each case that there exists in the state Republic of the Philippines
of which the subject is a citizen, a law similar to or identical with Art. 946 of
the California Civil Code. SUPREME COURT

Manila

We therefore find that as the domicile of the deceased Christensen, a

citizen of California, is the Philippines, the validity of the provisions of his FIRST DIVISION
will depriving his acknowledged natural child, the appellant, should be
 Dr. Jose F. Cunanan and his wife, Dr. Evelyn Perez-Cunanan, who became
American citizens, established a successful medical practice in New York,
U.S.A. The Cunanans lived at No. 2896 Citation Drive, Pompey, Syracuse,
G.R. No. 76714 June 2, 1994 New York, with their children, Jocelyn, 18; Jacqueline, 16; and Josephine, 14.

SALUD TEODORO VDA. DE PEREZ, petitioner, On August 23, 1979, Dr. Cunanan executed a last will and testament,
bequeathing to his wife "all the remainder" of his real and personal
vs. property at the time of his death "wheresoever situated" (Rollo, p. 35). In
HON. ZOTICO A. TOLETE in his capacity as Presiding Judge, Branch 18, RTC, the event he would survive his wife, he bequeathed all his property to his
Bulacan, respondent. children and grandchildren with Dr. Rafael G. Cunanan, Jr. as trustee. He
appointed his wife as executrix of his last will and testament and Dr. Rafael
G. Cunanan, Jr. as substitute executor. Article VIII of his will states:
Natividad T. Perez for petitioner.

If my wife, EVELYN PEREZ-CUNANAN, and I shall die under such

Benedicto T. Librojo for private respondents. circumstances that there is not sufficient evidence to determine the order
of our deaths, then it shall be presumed that I predeceased her, and my
estate shall be administered and distributed, in all respects, in accordance
with such presumption (Rollo, p. 41).

QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of Court to
set aside the Order dated November 19, 1986 of the Regional Trial Court,
Branch 18, Bulacan presided by respondent Judge Zotico A. Tolete, in
Special Proceedings No. 1793-M.
We grant the petition.
Four days later, on August 27, Dr. Evelyn P. Cunanan executed her own last
will and testament containing the same provisions as that of the will of her
husband. Article VIII of her will states:
If my husband, JOSE F. CUNANAN, and I shall die under such circumstances
that there is not sufficient evidence to determine the order of our deaths,
then it shall be presumed that he predeceased me, and my estate shall be
administered and distributed in all respects, in accordance with such
presumption. (Rollo, p. 31).

II
On January 9, 1982, Dr. Cunanan and his entire family perished when they
were trapped by fire that gutted their home. Thereafter, Dr. Rafael G.
Cunanan, Jr. as trustee and substitute executor of the two wills, filed
separate proceedings for the probate thereof with the Surrogate Court of
the County of Onondaga, New York. On April 7, these two wills were
admitted to probate and letters testamentary were issued in his favor.
On February 21, 1983, Salud Teodoro Perez, the mother of Dr. Evelyn P.
Cunanan, and petitioner herein, filed with the Regional P. Cunanan, and
petitioner herein, filed with the Regional Trial Court, Malolos, Bulacan a
petition for the reprobate of the two bills ancillary to the probate
proceedings in New York. She also asked that she be appointed the special
administratrix of the estate of the deceased couple consisting primarily of a
farm land in San Miguel, Bulacan.
On March 9, the Regional Trial Court, Branch 16, Malolos, Bulacan, presided
by Judge Gualberto J. de la Llana, issued an order, directing the issuance of
letters of special administration in favor of petitioner upon her filing of a
P10,000.00 bond. The following day, petitioner posted the bond and took
her oath as special administration.
As her first act of administration, petitioner filed a motion, praying that the
Philippine Life Insurance Company be directed to deliver the proceeds in the
amount of P50,000.00 of the life insurance policy taken by Dr. Jose F.
Cunanan with Dr. Evelyn Perez-Cunanan and their daughter Jocelyn as
beneficiaries. The trial court granted the motion.
Counsel for the Philippine American Life Insurance Company then filed a
manifestation, stating that said company then filed a manifestation, stating
that said company had delivered to petitioner the amount of P49,765.85,
representing the proceeds of the life insurance policy of Dr. Jose F.
Cunanan.
In a motion dated May 19, 1983, petitioner asked that Dr. Rafael Cunanan,
Sr. be ordered to deliver to her a Philippine Trust Company passbook with
P25,594.00 in savings deposit, and the Family Savings Bank time deposit
certificates in the total amount of P12,412.52.
On May 31, Atty. Federico Alday filed a notice of appearance as counsel for
the heirs of Dr. Jose F. Cunanan, namely, Dr. Rafael Cunanan, Sr., Priscilla
Cunanan Bautista, Lydia Cunanan Ignacio, Felipe F. Cunanan and Loreto
Cunanan Concepcion (Cunanan heirs). He also manifested that before
receiving petitioner's motion of May 19, 1983, his clients were unaware of
the filing of the testate estate case and therefore, "in the interest of simple
fair play," they should be notified of the proceedings (Records, p. 110). He
prayed for deferment of the hearing on the motions of May 19, 1983.
Petitioner then filed a counter manifestation dated June 13, 1983, asserting:
(1) that the "Cunanan collaterals are neither heirs nor creditors of the late
Dr. Jose F. Cunanan" and therefore, they had "no legal or proprietary
interests to protect" and "no right to intervene"; (2) that the wills of Dr. Jose
F. Cunanan and Dr. Evelyn Perez-Cunanan, being American citizens, were
executed in accordance with the solemnities and formalities of New York
laws, and produced "effects in this jurisdiction in accordance with Art. 16 in
relation to Art. 816 of the Civil Code"; (3) that under Article VIII of the two
wills, it was presumed that the husband predeceased the wife; and (4) that
"the Cunanan collaterals are neither distributees, legatees or beneficiaries,
much less, heirs as heirship is only by institution" under a will or by
operation of the law of New York (Records, pp. 112-113).
On June 23, the probate court granted petitioner's motion of May 19, 1983.
However, on July 21, the Cunanan heirs filed a motion to nullify the
proceedings and to set aside the appointment of, or to disqualify, petitioner
as special administratrix of the estates of Dr. Jose F. Cunanan and Dr. Evelyn
Perez-Cunanan. The motion stated: (1) that being the "brothers and sisters
and the legal and surviving heirs" of Dr. Jose F. Cunanan, they had been
"deliberately excluded" in the petition for the probate of the separate wills
of the Cunanan spouses thereby misleading the Bulacan court to believe
that petitioner was the sole heir of the spouses; that such
"misrepresentation" deprived them of their right to "due process in
violation of Section 4, Rule 76 of the Revised Rules of Court; (2) that Dr.
Rafael G. Cunanan, Jr., the executor of the estate of the Cunanan spouses,
was likewise not notified of the hearings in the Bulacan court; (3) that the
"misrepresentation and concealment committed by" petitioner rendered
her unfit to be a special administratrix; (4) that Dr. Rafael G. Cunanan, Jr.
had, by virtue of a verified power of attorney, authorized his father,
Dr. Rafael Cunanan, Sr., to be his attorney-in-fact; and (5) that Dr. Rafael
Cunanan, Sr. is qualified to be a regular administrator "as practically all of
the subject estate in the Philippines belongs to their brother, Dr. Jose F.
Cunanan" (Records, pp. 118-122). Hence, they prayed: (1) that the
proceedings in the case be declared null and void; (2) that the appointment
of petitioner as special administratrix be set aside; and (3) that Dr. Rafael
Cunanan, Sr. be appointed the regular administrator of the estate of the
deceased spouses.
Thereafter, the Cunanan heirs filed a motion requiring petitioner to submit
an inventory or accounting of all monies received by her in trust for the
estate.
Jose F. Cunanan, he had willed all his worldly goods to his wife and nothing
to his brothers and sisters; and (5) that Dr. Rafael G. Cunanan, Jr. had
unlawfully disbursed $215,000.00 to the Cunanan heirs, misappropriated
$15,000.00 for himself and irregularly assigned assets of the estates to his
American lawyer (Records, pp. 151-160).
In their reply, the Cunanan heirs stressed that on November 24, 1982,
petitioner and the Cunanan heirs had entered into an agreement in the
United States "to settle and divide equally the estates," and that under
Section 2 of Rule 77 the "court shall fix a time and place for the hearing and
cause notice thereof to be given as in case of an original will presented for
allowance" (Records, pp. 184-185).
Petitioner asked that Dr. Rafael G. Cunanan, Jr. be cited for contempt of
court for failure to comply with the Order of June 23, 1983 and for
appropriating money of the estate for his own benefit. She also alleged that
she had impugned the agreement of November 24, 1982 before the
Surrogate Court of Onondaga, New York which rendered a decision on April
13, 1983, finding that "all assets are payable to Dr. Evelyn P. Cunanan’s
executor to be then distributed pursuant to EPTL4-1.1 subd [a] par [4]"
(Rollo, p. 52).

In her opposition, petitioner asserted: (1) that she was the "sole and only
On their part, the Cunanan heirs replied that petitioner was estopped from
heir" of her daughter, Dr. Evelyn Perez-Cunanan to the exclusion of the
claiming that they were heirs by the agreement to divide equally the
"Cunanan collaterals"; hence they were complete strangers to the
estates. They asserted that by virtue of Section 2 of Rule 77 of the Rules of
proceedings and were not entitled to notice; (2) that she could not have
Court, the provisions of Sections 3, 4 and 5 of Rule 76 on the requirement of
"concealed" the name and address of Dr. Rafael G. Cunanan, Jr. because his
notice to all heirs, executors, devisees and legatees must be complied with.
name was prominently mentioned not only in the two wills but also in the
They reiterated their prayer: (1) that the proceedings in the case be
decrees of the American surrogate court; (3) that the rule applicable to the
nullified; (2) that petitioner be disqualified as special administratrix; (3) that
case is Rule 77, not Rule 76, because it involved the allowance of wills
she be ordered to submit an inventory of all goods, chattels and monies
proved outside of the Philippines and that nowhere in Section 2 of Rule 77 is
which she had received and to surrender the same to the court; and (4) that
there a mention of notice being given to the executor who, by the same
Dr. Rafael Cunanan, Sr. be appointed the regular administrator.
provision, should himself file the necessary ancillary proceedings in this
country; (4) that even if the Bulacan estate came from the "capital" of Dr.
Petitioner filed a rejoinder, stating that in violation of the April 13, 1983
decision of the American court Dr. Rafael G. Cunanan, Jr. made
"unauthorized disbursements from the estates as early as July 7, 1982"
(Records, p. 231). Thereafter, petitioner moved for the suspension of the
proceedings as she had "to attend to the settlement proceedings" of the
estate of the Cunanan spouses in New York (Records, p. 242). The Cunanans
heirs opposed this motion and filed a manifestation, stating that petitioner
had received $215,000.00 "from the Surrogate’s Court as part of legacy"
based on the aforesaid agreement of November 24, 1982 (Records, p. 248).
On February 21, 1984, Judge de la Llana issued an order, disallowing the
reprobate of the two wills, recalling the appointment of petitioner as special
administratrix, requiring the submission of petitioner of an inventory of the
property received by her as special administratrix and declaring all pending
incidents moot and academic. Judge de la Llana reasoned out that petitioner
failed to prove the law of New York on procedure and allowance of wills and
the court had no way of telling whether the wills were executed in
accordance with the law of New York. In the absence of such evidence, the
presumption is that the law of succession of the foreign country is the same
as the law of the Philippines. However, he noted, that there were only two
witnesses to the wills of the Cunanan spouses and the Philippine law
requires three witnesses and that the wills were not signed on each and
every page, a requirement of the Philippine law.
On August 27, 1985, petitioner filed a motion for reconsideration of the
Order dated February 21, 1984, where she had sufficiently proven the
applicable laws of New York governing the execution of last wills and
testaments.
On the same day, Judge de la Llana issued another order, denying the
motion of petitioner for the suspension of the proceedings but gave her 15
days upon arrival in the country within which to act on the other order
issued that same day. Contending that the second portion of the second
order left its finality to the discretion of counsel for petitioner, the Cunanans
filed a motion for the reconsideration of the objectionable portion of the
said order so that it would conform with the pertinent provisions of the
Judiciary Reorganization Act of 1980 and the Interim Rules of Court.
On April 30, 1985, the respondent Judge of Branch 18 of the Regional Trial
Court, Malolos, to which the reprobate case was reassigned, issued an order
stating that "(W)hen the last will and testament . . . was denied probate,"
the case was terminated and therefore all orders theretofore issued should
be given finality. The same Order amended the February 21, 1984 Order by
requiring petitioner to turn over to the estate the inventoried property. It
considered the proceedings for all intents and purposes, closed (Records,
p. 302).
On August 12, petitioner filed a motion to resume proceedings on account
of the final settlement and termination of the probate cases in New York.
Three days later, petitioner filed a motion praying for the reconsideration of
the Order of April 30, 1985 on the strength of the February 21, 1984 Order
granting her a period of 15 days upon arrival in the country within which to
act on the denial of probate of the wills of the Cunanan spouses. On August
19, respondent Judge granted the motion and reconsidered the Order of
April 30, 1985.
On August 29, counsel for petitioner, who happens to be her daughter,
Natividad, filed a motion praying that since petitioner was ailing in Fort Lee,
New Jersey, U.S.A. and therefore incapacitated to act as special
administratrix, she (the counsel) should be named substitute special
administratrix. She also filed a motion for the reconsideration of the Order
of February 21, 1984, denying probate to the wills of the Cunanan spouses,
alleging that respondent Judge "failed to appreciate the significant
probative value of the exhibits . . . which all refer to the offer and admission
to probate of the last wills of the Cunanan spouses including all procedures
undertaken and decrees issued in connection with the said probate"
(Records, pp. 313-323).
 granted "the opportunity to present evidence on what the law of the State
of New York has on the probate and allowance of wills" (Records, p. 393).
Thereafter, the Cunanans heirs filed a motion for reconsideration of the
Order of August 19, 1985, alleging lack of notice to their counsel.

On July 18, respondent Judge denied the motion holding that to allow the
probate of two wills in a single proceeding "would be a departure from the
On March 31, 1986, respondent Judge to which the case was reassigned
typical and established mode of probate where one petition takes care of
denied the motion for reconsideration holding that the documents
one will." He pointed out that even in New York "where the wills in question
submitted by petitioner proved "that the wills of the testator domiciled
were first submitted for probate, they were dealt with in separate
abroad were properly executed, genuine and sufficient to possess real and
proceedings" (Records, p. 395).
personal property; that letters testamentary were issued; and that
proceedings were held on a foreign tribunal and proofs taken by a
competent judge who inquired into all the facts and circumstances and
On August 13, 1986, petitioner filed a motion for the reconsideration of the
being satisfied with his findings issued a decree admitting to probate the
Order of July 18, 1986, citing Section 3, Rule 2 of the Rules of Court, which
wills in question." However, respondent Judge said that the documents did
provides that no party may institute more than one suit for a single cause of
not establish the law of New York on the procedure and allowance of wills
action. She pointed out that separate proceedings for the wills of the
(Records, p. 381).
spouses which contain basically the same provisions as they even named
each other as a beneficiary in their respective wills, would go against "the
grain of inexpensive, just and speedy determination of the proceedings"
On April 9, 1986, petitioner filed a motion to allow her to present further
(Records, pp. 405-407).
evidence on the foreign law. After the hearing of the motion on April 25,
1986, respondent Judge issued an order wherein he conceded that
insufficiency of evidence to prove the foreign law was not a fatal defect and
On September 11, 1986, petitioner filed a supplement to the motion for
was curable by adducing additional evidence. He granted petitioner 45 days
reconsideration, citing Benigno v. De La Peña, 57 Phil. 305 (1932) (Records,
to submit the evidence to that effect.
p. 411), but respondent Judge found that this pleading had been filed out of
time and that the adverse party had not been furnished with a copy thereof.
However, without waiting for petitioner to adduce the additional evidence, In her compliance, petitioner stated that she had furnished a copy of the
respondent Judge ruled in his order dated June 20, 1986 that he found "no motion to the counsel of the Cunanan heirs and reiterated her motion for a
compelling reason to disturb its ruling of March 31, 1986" but allowed "final ruling on her supplemental motion" (Records, p. 421).
petitioner to "file anew the appropriate probate proceedings for each of the
testator" (Records, p. 391).
On November 19, respondent Judge issued an order, denying the motion for
reconsideration filed by petitioner on the grounds that "the probate of
The Order dated June 20, 1986 prompted petitioner to file a second motion separate wills of two or more different persons even if they are husband
for reconsideration stating that she was "ready to submit further evidence and wife cannot be undertaken in a single petition" (Records, pp. 376-378).
on the law obtaining in the State of New York" and praying that she be

Hence, petitioner instituted the instant petition, arguing that the evidence
offered at the hearing of April 11, 1983 sufficiently proved the laws of the
State of New York on the allowance of wills, and that the separate wills of
the Cunanan spouses need not be probated in separate proceedings.
II
Petitioner contends that the following pieces of evidence she had submitted
before respondent Judge are sufficient to warrant the allowance of the
wills:
(a) two certificates of authentication of the respective wills of Evelyn
and Jose by the Consulate General of the Philippines (Exhs. "F" and "G");
(b) two certifications from the Secretary of State of New York and
Custodian of the Great Seal on the facts that Judge Bernard L. Reagan is the
Surrogate of the Country of Onondaga which is a court of record, that his
signature and seal of office are genuine, and that the Surrogate is duly
authorized to grant copy of the respective wills of Evelyn and Jose
(Exhs. "F-1" and "G-1");
(c) two certificates of Judge Reagan and Chief Clerk Donald E. Moore
stating that they have in their records and files the said wills which were
recorded on April 7, 1982 (Exhs. "F-2" and "G-2");
(d) the respective wills of Evelyn and Jose (Exhs. "F-3", "F-6" and Exh.
"G-3" — "G-6");
(e) certificates of Judge Reagan and the Chief Clerk certifying to the
genuineness and authenticity of the exemplified copies of the two wills
(Exhs. "F-7" and "F-7");
(f) two certificates of authentication from the Consulate General of the
Philippines in New York (Exh. "H" and "F").
(g) certifications from the Secretary of State that Judge Reagan is duly
authorized to grant exemplified copies of the decree of probate, letters
testamentary and all proceedings had and proofs duly taken
(Exhs. "H-1" and "I-1");
(h) certificates of Judge Reagan and the Chief Clerk that letters
testamentary were issued to Rafael G. Cunanan (Exhs. "H-2" and "I-2");
(i) certification to the effect that it was during the term of Judge
Reagan that a decree admitting the wills to probate had been issued and
appointing Rafael G. Cunanan as alternate executor (Exhs. "H-3" and
"I-10");
(j) the decrees on probate of the two wills specifying that proceedings
were held and proofs duly taken (Exhs. "H-4" and "I-5");
(k) decrees on probate of the two wills stating that they were properly
executed, genuine and valid and that the said instruments were admitted to
probate and established as wills valid to pass real and personal property
(Exhs. "H-5" and "I-5"); and
(l) certificates of Judge Reagan and the Chief Clerk on the genuineness
and authenticity of each other’s signatures in the exemplified copies of the
The necessity of presenting evidence on the foreign laws upon which the
decrees of probate, letters testamentary and proceedings held in their court
probate in the foreign country is based is impelled by the fact that our
(Exhs. "H-6" and "I-6") (Rollo, pp. 13-16).
courts cannot take judicial notice of them (Philippine Commercial and
Industrial Bank v. Escolin, 56 SCRA 266 [1974]).

Petitioner adds that the wills had been admitted to probate in the Surrogate
Court’s Decision of April 13, 1983 and that the proceedings were terminated
Petitioner must have perceived this omission as in fact she moved for more
on November 29, 1984.
time to submit the pertinent procedural and substantive New York laws but
which request respondent Judge just glossed over. While the probate of a
will is a special proceeding wherein courts should relax the rules on
The respective wills of the Cunanan spouses, who were American citizens,
evidence, the goal is to receive the best evidence of which the matter is
will only be effective in this country upon compliance with the following
susceptible before a purported will is probated or denied probate (Vda. de
provision of the Civil Code of the Philippines:
Ramos v. Court of Appeals, 81 SCRA 393 [1978]).

Art. 816. The will of an alien who is abroad produces effect in the
There is merit in petitioner’s insistence that the separate wills of the
Philippines if made with the formalities prescribed by the law of the place in
Cunanan spouses should be probated jointly. Respondent Judge’s view that
which he resides, or according to the formalities observed in his country, or
the Rules on allowance of wills is couched in singular terms and therefore
in conformity with those which this Code prescribes.
should be interpreted to mean that there should be separate probate
proceedings for the wills of the Cunanan spouses is too literal and simplistic
an approach. Such view overlooks the provisions of Section 2, Rule 1 of the
Thus, proof that both wills conform with the formalities prescribed by New Revised Rules of Court, which advise that the rules shall be "liberally
York laws or by Philippine laws is imperative. construed in order to promote their object and to assist the parties in
obtaining just, speedy, and inexpensive determination of every action and
proceeding."
The evidence necessary for the reprobate or allowance of wills which have
been probated outside of the Philippines are as follows: (1) the due
execution of the will in accordance with the foreign laws; (2) the testator A literal application of the Rules should be avoided if they would only result
has his domicile in the foreign country and not in the Philippines; (3) the will in the delay in the administration of justice (Acain v. Intermediate Appellate
has been admitted to probate in such country; (4) the fact that the foreign Court, 155 SCRA 100 [1987]; Roberts v. Leonidas, 129 SCRA 33 [1984]).
tribunal is a probate court, and (5) the laws of a foreign country on
procedure and allowance of wills (III Moran Commentaries on the Rules of
Court, 1970 ed., pp. 419-429; Suntay v. Suntay, 95 Phil. 500 [1954]; Fluemer
What the law expressly prohibits is the making of joint wills either for the
v. Hix, 54 Phil. 610 [1930]). Except for the first and last requirements, the
testator’s reciprocal benefit or for the benefit of a third person (Civil Code of
petitioner submitted all the needed evidence.
the Philippines, Article 818). In the case at bench, the Cunanan spouses
executed separate wills. Since the two wills contain essentially the same
provisions and pertain to property which in all probability are conjugal in
WHEREFORE, the questioned Order is SET ASIDE. Respondent Judge shall
nature, practical considerations dictate their joint probate. As this Court has
allow petitioner reasonable time within which to submit evidence needed
held a number of times, it will always strive to settle the entire controversy
for the joint probate of the wills of the Cunanan spouses and see to it that
in a single proceeding leaving no root or branch to bear the seeds of future
the brothers and sisters of Dr. Jose F. Cunanan are given all notices and
litigation (Motoomull v. Dela Paz, 187 SCRA 743 [1990]).
copies of all pleadings pertinent to the probate proceedings.

This petition cannot be completely resolved without touching on a very

SO ORDERED.
glaring fact — petitioner has always considered herself the sole heir of

Dr. Evelyn Perez Cunanan and because she does not consider herself an heir
of Dr. Jose F. Cunanan, she noticeably failed to notify his heirs of the filing of Davide, Jr., Bellosillo and Kapunan, JJ., concur
the proceedings. Thus, even in the instant petition, she only impleaded
respondent Judge, forgetting that a judge whose order is being assailed is
merely a nominal or formal party (Calderon v. Solicitor General, 215 SCRA
876 [1992]).

The rule that the court having jurisdiction over the reprobate of a will shall
"cause notice thereof to be given as in case of an original will presented for Today is Sunday, September 09, 2018
allowance" (Revised Rules of Court, Rule 27, Section 2) means that with
regard to notices, the will probated abroad should be treated as if it were an
"original will" or a will that is presented for probate for the first time. Custom Search
Accordingly, compliance with Sections 3 and 4 of Rule 76, which require
publication and notice by mail or personally to the "known heirs, legatees,
and devisees of the testator resident in the Philippines" and to the executor,
if he is not the petitioner, are required.
Republic of the Philippines

SUPREME COURT
The brothers and sisters of Dr. Jose F. Cunanan, contrary to petitioner's
Manila
claim, are entitled to notices of the time and place for proving the wills.
Under Section 4 of Rule 76 of the Revised Rules of Court, the "court shall
also cause copies of the notice of the time and place fixed for proving the
EN BANC
will to be addressed to the designated or other known heirs, legatees, and
devisees of the testator, . . . "
G.R. No. 17857 June 12, 1922
In re will of Josefa Zalamea y Abella, deceased.
PEDRO UNSON, petitioner-appellee,
vs.
ANTONIO ABELLA, ET AL., opponents-appellants.
Crispin Oben for appellants.
Pedro Guevarra and Carlos Ledesma for appellee.
VILLAMOR, J.:
On July 19, 1918, Doña Josefa Zalamea y Abella, single, 60 years old, who
was residing in the municipality of Pagsanjan, Province of Laguna, executed
her last will and testament with an attached inventory of her properties,
Exhibits A and A-1, in the presence of three witnesses, who signed with her
all the pages of said documents. The testatrix died on the 6th of January,
1921, and, as the record shows, the executor appointed in the will, Pedro
Unson, filed in the court of First Instance of Laguna on the 19th of January
of the same year an application for the probate of the will and the issuance
of the proper letters of administration in his favor.
To said application an opposition was presently by Antonio Abella, Ignacia
Abella, Avicencia Abella, and Santiago Vito, alleging that the supposed will
of the deceased Zalamea was not executed in conformity with the provinces
of the law, inasmuch as it was not paged correlatively in letters, nor was
there any attestation clause in it, nor was it signed by the testatrix and the
witnesses in the presence of each other.
Trial having been held, the judge a quo overruled the opposition of the
contestants, and ordered the probate of the will, Exhibit A, and the
inventory, Exhibit A-1, holding that both documents contained the true and
last will of the deceased Josefa Zalamea.
From the judgment of the court below, the contestants have appealed, and
in their brief they assign three errors, which, in their opinion, justify the
reversal of the judgment appealed from.
The first error assigned by the appellants as committed by the court below
is its finding to the effect that Exhibit A, said to be the will of the deceased
Josefa Zalamea, was executed with all the solemnities required by the law.
The arguments advanced by appellants' counsel in support of the first
assignment of error tend to impeach the credibility of the witnesses for the
proponent, specially that of Eugenio Zalamea. We have made a careful
examination of the evidence, but have not found anything that would justify
us in disturbing the finding of the court a quo. The attesting witnesses,
Eugenio Zalamea and Gonzalo Abaya, clearly testify that together with the
other witness to the will, Pedro de Jesus, they did sign each and every page
of the will and of the inventory in the presence of each other and of the
testatrix, as the latter did likewise sign all the pages of the will and of the
inventory in their presence.
In their brief the appellants intimate that one of the pages of the will was
not signed by the testatrix, nor by the witnesses on the day of the execution
of the will, that is, on the 19th of July, 1918, basing their contention on the
testimony of Aurelio Palileo, who says that on one occasion Gonzalo Abaya
told him that one of the pages of the will had not been signed by the
witnesses, nor by the testatrix on the day of its execution. Palileo's
testimony is entirely contradicted by Gonzalo Abaya not only in the direct,
but in the rebuttal, evidence as well. To our mind, Palileo's testimony
cannot prevail over that of the attesting witnesses, Gonzalo Avaya and
Eugenio Zalamea. The appellants impeach the credibility of Eugenio
Zalamea, for having made a sworn declaration before the justice of the
peace of Santa Cruz, Laguna, before the trial of this case, to the effect that
he was really one of the witnesses to the will in question, which fact was
corroborated by himself at the trial. The appellants take Zalamea's
testimony in connection with the dismissal of a criminal case against a
nephew of his, in whose success he was interested, and infer from this fact
the partiality of his testimony. We deem this allegation of little importance
to impeach the credibility of the witness Zalamea, especially because his
testimony is corroborated by the other attesting witness. Gonzalo Abaya,
and by attorney Luis Abaya, who had prepared the testament at the
instance of the testatrix. The foregoing is sufficient for us to conclude that
the first assignment of error made by the appellants is groundless.
The appellants contend that the court below erred in admitting the will to
probate notwithstanding the omission of the proponent to produce one of
the attesting witnesses.
At the trial of this case the attorneys for the proponent stated to the court
that they had necessarily to omit the testimony of Pedro de Jesus, one of
the persons who appear to have witnessed the execution of the will, for
there were reasonable grounds to believe that said witness was openly
hostile to the proponent, inasmuch as since the announcement of the trial
of the petition for the probate of the will, said witness has been in frequent
communication with the contestants and their attorney, and has refused to
hold any conference with the attorneys for the proponent. In reply to this,
the attorney for the contestants, said to the court, "without discussing for
the present whether or not in view of those facts (the facts mentioned by
the attorneys for the petitioner), in the hypothesis that the same are
proven, they are relieved from producing that witness, for while it is a
matter not decided, it is a recognized rule that the fact that a witness is
hostile does not justify a party to omit his testimony; without discussing
this, I say, I move that said statement be stricken out, and if the proponent
wants these facts to stand to stand in the record, let him prove them." The
court a quo ruled, saying, "there is no need."
To this ruling of the court, the attorney for the appellants did not take any
exception.
In the case of Avera vs. Garcia and Rodriguez (42 Phil., 145), recently
decided by this court, in deciding the question whether a will can be
admitted to probate, where opposition is made, upon the proof of a single
attesting witness, without producing or accounting for the absence of the
other two, it was said; "while it is undoubtedly true that an uncontested will
may be proved by the testimony of only one of the three attesting
witnesses, nevertheless in Cabang vs. Delfinado (34 Phil., 291), this court
declared after an elaborate examination of the American and English
authorities that when a contest is instituted, all of the attesting witnesses
must be examined, if alive and within reach of the process of the court.
In the present case no explanation was made at the trial as to why all three
of the attesting witnesses were not produced, but the probable reason is
found in the fact that, although the petition for the probate of this will had
been pending from December 21, 1917, until the date set for the hearing,
which was April 5, 1919, no formal contest was entered until the very day
set for the hearing; and it is probable that the attorney for the 
proponent, believing in good faith that probate would not be contested,
repaired to the court with only one of the three attesting witnesses at hand,
and upon finding that the will was contested, incautiously permitted the
case to go to proof without asking for a postponement of the trial in order
that he might produce all the attesting witnesses.
Although this circumstance may explain why the three witnesses were not
produced, it does not in itself supply any basis for changing the rule
expounded in the case above referred to; and were it not for a fact now to
be mentioned, this court would probably be compelled to reverse this case
on the ground that the execution of the will had not been proved by a
sufficient number of attesting witnesses.
It appears, however, that this point was not raised by the appellant in the
lower court either upon the submission of the cause for determination in
that court or upon the occasion of the filing of the motion for a new trial.
Accordingly it is insisted for the appellee that this question cannot now be
raised for t he first time in this court. We believe this point is well taken, and
the first assignment of error must be declared not to be well taken. This
exact question has been decided by the Supreme Court of California
adversely to the contention of the appellant, and we see no reason why the
same rule of practice should not be observed by us. (Estate of McCarty, 58
Cal., 335, 337.)
There are at least two reasons why the appellate tribunals are disinclined to
permit certain questions to be raised for the first time in the second
instance. In the first place it eliminates the judicial criterion of the Court of
First Instance upon the point there presented and makes the appellate
court in effect a court of first instance with reference to that point, unless
the case is remanded for a new trial. In the second place, it permits, if it
does not encourage, attorneys to trifle with the administration of justice by
concealing from the trial court and from their opponent the actual point
upon which reliance is placed, while they are engaged in other discussions
more simulated than real. These considerations are, we think, decisive.
In ruling upon the point above presented we do not wish to be understood
as laying down any hard and fast rule that would prove an embarrassment
to this court in the administration of justice in the future. In one way or
another we are constantly here considering aspects of cases and applying
doctrines which have escaped the attention of all persons concerned in the
litigation below; and this is necessary if this court is to contribute the part
due from it in the correct decision of the cases brought before it. What we
mean to declare is that when we believe that substantial justice has been
done in the Court of First Instance, and the point relied on for reversal in
this court appears to be one which ought properly to have been presented
in that court, we will in the exercise of a sound discretion ignore such
question upon appeal; and this is the more proper when the question
relates to a defect which might have been cured in the Court of First
Instance if attention had been called to it there. In the present case, if the
appellant had raised this question in the lower court, either at the hearing
or upon a motion for a new trial, that court would have had the power, and
it would have been its duty, considering the tardy institution of the contest,
to have granted a new trial in order that all the witnesses to the will might
be brought into court. But instead of thus calling the error to the attention
of the court and his adversary, the point is first raised by the appellant in
this court. We hold that this is too late.
Properly understood, the case of Cabang vs. Delfinado, supra, contains
nothing inconsistent with the ruling we now make, for it appears from the
opinion in that case that the proponent of the will had obtained an order for
a republication and new trial for the avowed purpose of presenting the two
additional attesting witnesses who had not been previously examined, but
nevertheless subsequently failed without any apparent reason to take their
testimony. Both parties in that case were therefore fully apprised that the
question of the number of witnesses necessar to prove the will was in issue
in the lower court.
In the case at bar, we do not think this question properly to have been
raised at the trial, but in the memorandum submitted by the attorney for
the appellants to the trial court, he contended that the will could not be
admitted to probate because one of the witnesses to the will was not
produced, and that the voluntary non-production of this witness raises a
presumption against the pretension of the proponent. The trial court found
that the evidence introduced by the proponent, consisting of the testimony
of the two attesting witnesses and the other witness who was present at the
execution, and had charge of the preparation of the will and the inventory,
Exhibits A and A-1, was sufficient. As announced in Cabang vs. Delfinado,
supra, the general rule is that, where opposition is made to the probate of a
will, the attesting witnesses must be produced. But there are exceptions to
this rule, for instance, when a witness is dead, or cannot be served with
process of the court, or his reputation for truth has been questioned or he
appears hostile to the cause of the proponent. In such cases, the will may be
admitted to probate without the testimony of said witness, if, upon the
other proofs adduced in the case, the court is satisfied that the will has been
duly executed. Wherefore, we find that the non-production of the attesting
witness, Pedro de Jesus, as accounted for by the attorney for the proponent
at the trial, does not render void the decree of the court a quo, allowing the
probate.
But supposing that said witness, when cited, had testified adversely to the
application, this would not by itself have change the result reached by the
court a quo, for section 632 of the Code of Civil Procedure provides that a
will can be admitted to probate, notwithstanding that one or more
witnesses do not remember having attested it, provided the court is
satisfied upon the evidence adduced that the will has been executed and
signed in the manner prescribed by the law.
The last error assigned by the appellants is made to consist in the probate of
the inventory, Exhibit A-1, despite the fact that this exhibit has no
attestation clause in it, and its paging is made in Arabic numerals and not in
letters.
In the third paragraph of the will, reference is made to the inventory, Exhibit
A-1, and at the bottom of said will, the testatrix Josefa Zalamea says:
In witness whereof, I sign this will composed of ten folios including the page
containing the signatures and the attestation of the witnesses; I have
likewise signed the inventory attached to this will composed of ten folios in
the presence of Messrs. Gonzalo Abaya, Eugenio Zalamea, Pedro de Jesus,
in this municipality of Pagsanjan, Laguna, Philippine Islands, this 19th of July,
1918.
And the attestation clause is as follows:
The foregoing will composed of ten folios including this one whereunto we
have affixed our signatures, as well as the inventory of the properties of
Doña Josefa Zalamea y Abella, was read to Doña Josefa Zalamea y Abella,
and the latter affixed her name to the last, and each and every page of this
will and inventory composed of ten folios in our presence; and she declared
this to be her last will and testament and at her request we have affixed
hereunto our respective signatures in her presence and in the presence of
each other as witnesses to the will and the inventory this 19th of July, 1918,
at Pagsanjan, Laguna, P.I.
(Sgd.) GONZALO ABAYA,
EUGENIO ZALAMEA,
PEDRO DE JESUS.
In view of the fact that the inventory is referred to in the will as an integral
part of it, we find that the foregoing attestation clause is in compliance with
section 1 of Act No. 2645, which requires this solemnity for the validity of a
will, and makes unnecessary any other attestation clause at the end of the
inventory.
As to the paging of the will in Arabic numerals, instead of in letters, we
adhere to the doctrine announced in the case of Aldaba vs. Roque (p. 378,
ante), recently decided by this court. In that case the validity of the will was
assailed on the ground that its folios were paged with the letters A, B, C,
etc., instead of with the letters "one," two," "three," etc. It was held that
this way of numbering the pages of a will is in compliance with the spirit of
the law, inasmuch as either one of these methods indicates the correlation
of the pages and serves to prevent the abstraction of any of them. In the
course of the decision, we said: "It might be said that the object of the law
in requiring that the paging be made in letters is to make falsification more
difficult, but it should be noted that since all the pages of the testament are
signed at the margin by the testatrix and the witnesses, the difficulty of
forging the signatures in either case remains the same. In other words the
more or less degree of facility to imitate the writing of the letters A, B, C,
etc., does not make for the easiness to forge the signatures. And as in the
present case there exists the guaranty of the authenticity of the testament,
consisting in the signatures on the left margins of the testament and the
paging thereof as declared in the attestation clause, the holding of this court
in Abangan vs. Abangan (40 Phil., 476), might as well be repeated:
"The object of the solemnities surrounding the execution of wills is to close
the door against bad faith and fraud, to avoid substitution of wills and
testaments and to guaranty their truth and authenticity. Therefore the laws
on this subject should be interpreted in such a way as to attain these
primordial ends. 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 whatsoever, that adds
nothing but demands more requisites entirely unnecessary, useless, and
frustrative of the testator's last will, must be disregarded."
In that case the testament was written on one page, and the attestation
clause on another. Neither one of these pages was numbered in any way,
and it was held: "In a will consisting of two sheets the first of which contains
all the testamentary dispositions and is signed at the bottom by the testator
and three witnesses, and the second contains only the attestation clause
and is signed also at the bottom by the three witnesses it is not necessary
that both sheets be further signed on their margins by the testator and the
witnesses, or be paged."
This means that, according to the particular case, the emission of paging
does not necessarily render the testament invalid.
The law provides that the numbering of the pages should be in letters
placed on the upper part of the sheet, but if the paging should be placed in
the lower part, would the testament be void for this sole reason? We
believe not. The law also provides that the testator and the witnesses must
sign the left margin of each of the sheets of the testament; but if they
should sign on the right margin, would this fact also annul the testament?
Evidently not. This court has already held in Avera vs. Garcia and Rodriguez
(42 Phi., 145):
"It is true that the statute says that the testator and the instrumental
witnesses shall sign their names on the left margin of each and every page;
and it is undeniable that the general doctrine is to the effect that all
statutory requirements as to the execution of wills must be fully complied
with. The same execution for wills must be fully complied with. The same
doctrine is also deducible from cases heretofore decided by this court."
"Still some details at time creep into legislative enactments which are so
trivial that it would be absurd to suppose that the Legislature could have
attached any decisive importance to them. The provision to the effect that
the signatures of the testator and witnesses shall be written on the left
margin of each page — rather than on the margin — seems to be of this
character. So far as concerns the authentication of the will, and of every
part thereof, it can make no possible difference whether the names appear
on the left or on the right margin, provided they are on one or the other. In
Craig vs. Tatlonghari (G. R. No. 12558, decided March 23, 1918, not
reported), this court declared a will void which was totally lacking in the
signatures required to be written on its several pages; and in the case of Re
Estate of Saguinsin (41 Phil., 875) a will was likewise declared void which
contained the necessary signatures on the margin of each leaf (folio), but
not in the margin of each page containing written matter."
 International Legal Resources

We do not desire to intimate that the numbering in letters is a requisite of AUSL Exclusive
no importance. But since its principal object is to give the correlation of the
pages, we hold that his object may be attained by writing one, two, three,
etc., as well as by writing A, B, C, etc.

We see no reason why the same rule should not be applied where the Today is Sunday, September 09, 2018
paging is in Arabic numerals, instead of in letters, as in the inventory in
question. So that, adhering to the view taken by this court in the case of
Abangan vs. Abangan, and followed in Aldava vs. Roque, with regard to the Custom Search
appreciation of the solemnities of a will, we find that the judgement
appealed from should be, as is hereby, affirmed with the costs against the
appellants. So ordered.

Republic of the Philippines

Araullo, C.J., Malcolm, Avanceña, Ostrand, Johns and Romualdez, JJ., concur. SUPREME COURT

Manila

The Lawphil Project - Arellano Law Foundation SECOND DIVISION

G.R. No. 76464 February 29, 1988

Constitution TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO

Statutes CASIANO, CONSTANCIO MALOTO, PURIFICACION MIRAFLOR, ROMAN
CATHOLIC CHURCH OF MOLO, AND ASILO DE MOLO, petitioners,
Executive Issuances
vs.
Judicial Issuances
COURT OF APPEALS, PANFILO MALOTO AND FELINO MALOTO, respondents.
Other Issuances

Jurisprudence
SARMIENTO, J.:
This is not the first time that the parties to this case come to us. In fact, two
other cases directly related to the present one and involving the same
parties had already been decided by us in the past. In G.R. No. L-30479, 1
which was a petition for certiorari and mandamus instituted by the
petitioners herein, we dismissed the petition ruling that the more
appropriate remedy of the petitioners is a separate proceeding for the
probate of the will in question. Pursuant to the said ruling, the petitioners
commenced in the then Court of First Instance of Iloilo, Special Proceeding
No. 2176, for the probate of the disputed will, which was opposed by the
private respondents presently, Panfilo and Felino both surnamed Maloto.
The trial court dismissed the petition on April 30, 1970. Complaining against
the dismissal, again, the petitioners came to this Court on a petition for
review by certiorari. 2 Acting on the said petition, we set aside the trial
court's order and directed it to proceed to hear the case on the merits. The
trial court, after hearing, found the will to have already been revoked by the
testatrix. Adriana Maloto, and thus, denied the petition. The petitioners
appealed the trial court's decision to the Intermediate Appellate Court
which, on June 7, 1985, affirmed the order. The petitioners' motion for
reconsideration of the adverse decision proved to be of no avail, hence, this
petition.
For a better understanding of the controversy, a factual account would be a
great help.
On October 20, 1963, Adriana Maloto died leaving as heirs her niece and
nephews, the petitioners Aldina Maloto-Casiano and Constancio, Maloto,
and the private respondents Panfilo Maloto and Felino Maloto. Believing
that the deceased did not leave behind a last will and testament, these four
heirs commenced on November 4, 1963 an intestate proceeding for the
settlement of their aunt's estate. The case was instituted in the then Court
of First Instance of Iloilo and was docketed as Special Proceeding No. 1736.
However, while the case was still in progress, or to be exact on February 1,
1964, the parties — Aldina, Constancio, Panfilo, and Felino — executed an
agreement of extrajudicial settlement of Adriana's estate. The agreement
provided for the division of the estate into four equal parts among the
parties. The Malotos then presented the extrajudicial settlement agreement
to the trial court for approval which the court did on March 21, 1964. That
should have signalled the end of the controversy, but, unfortunately, it had
not.
Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a
former associate of Adriana's counsel, the late Atty. Eliseo Hervas,
discovered a document entitled "KATAPUSAN NGA PAGBUBULAT-AN
(Testamento)," dated January 3,1940, and purporting to be the last will and
testament of Adriana. Atty. Palma claimed to have found the testament, the
original copy, while he was going through some materials inside the cabinet
drawer formerly used by Atty. Hervas. The document was submitted to the
office of the clerk of the Court of First Instance of Iloilo on April 1, 1967.
Incidentally, while Panfilo and Felino are still named as heirs in the said will,
Aldina and Constancio are bequeathed much bigger and more valuable
shares in the estate of Adriana than what they received by virtue of the
agreement of extrajudicial settlement they had earlier signed. The will
likewise gives devises and legacies to other parties, among them being the
petitioners Asilo de Molo, the Roman Catholic Church of Molo, and
Purificacion Miraflor.
Thus, on May 24, 1967, Aldina and Constancio, joined by the other devisees
and legatees named in the will, filed in Special Proceeding No. 1736 a
motion for reconsideration and annulment of the proceedings therein and
for the allowance of the will When the trial court denied their motion, the
petitioner came to us by way of a petition for certiorari and mandamus
assailing the orders of the trial court . 3 As we stated earlier, we dismissed
that petition and advised that a separate proceeding for the probate of the
alleged will would be the appropriate vehicle to thresh out the matters
raised by the petitioners.
Significantly, the appellate court while finding as inconclusive the matter on
whether or not the document or papers allegedly burned by the househelp
of Adriana, Guadalupe Maloto Vda. de Coral, upon instructions of the
testatrix, was indeed the will, contradicted itself and found that the will had
been revoked. The respondent court stated that the presence of animus
revocandi in the destruction of the will had, nevertheless, been sufficiently
proven. The appellate court based its finding on the facts that the document
was not in the two safes in Adriana's residence, by the testatrix going to the
residence of Atty. Hervas to retrieve a copy of the will left in the latter's
possession, and, her seeking the services of Atty. Palma in order to have a
new will drawn up. For reasons shortly to be explained, we do not view such
facts, even considered collectively, as sufficient bases for the conclusion
that Adriana Maloto's will had been effectively revoked.
There is no doubt as to the testamentary capacity of the testatrix and the
due execution of the will. The heart of the case lies on the issue as to
whether or not the will was revoked by Adriana.
The provisions of the new Civil Code pertinent to the issue can be found in
Article 830.
Art. 830. No will shall be revoked except in the following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as provided in case
of wills: or
(3) By burning, tearing, cancelling, or obliterating the will with the
intention of revoking it, by the testator himself, or by some other person in
his presence, and by his express direction. If burned, torn cancelled, or
obliterated by some other person, without the express direction of the
testator, the will may still be established, and the estate distributed in
accordance therewith, if its contents, and due execution, and the fact of its
unauthorized destruction, cancellation, or obliteration are established
according to the Rules of Court. (Emphasis Supplied.)
It is clear that the physical act of destruction of a will, like burning in this
case, does not per se constitute an effective revocation, unless the
destruction is coupled with animus revocandi on the part of the testator. It
is not imperative that the physical destruction be done by the testator
himself. It may be performed by another person but under the express
direction and in the presence of the testator. Of course, it goes without
saying that the document destroyed must be the will itself.
In this case, while animus revocandi or the intention to revoke, may be
conceded, for that is a state of mind, yet that requisite alone would not
suffice. "Animus revocandi is only one of the necessary elements for the
effective revocation of a last will and testament. The intention to revoke
must be accompanied by the overt physical act of burning, tearing,
obliterating, or cancelling the will carried out by the testator or by another
person in his presence and under his express direction. There is paucity of
evidence to show compliance with these requirements. For one, the
document or papers burned by Adriana's maid, Guadalupe, was not
satisfactorily established to be a will at all, much less the will of Adriana
Maloto. For another, the burning was not proven to have been done under
the express direction of Adriana. And then, the burning was not in her
presence. Both witnesses, Guadalupe and Eladio, were one in stating that
they were the only ones present at the place where the stove (presumably
in the kitchen) was located in which the papers proffered as a will were
burned.
The respondent appellate court in assessing the evidence presented by the
private respondents as oppositors in the trial court, concluded that the
testimony of the two witnesses who testified in favor of the will's revocation
appear "inconclusive." We share the same view. Nowhere in the records
before us does it appear that the two witnesses, Guadalupe Vda. de Corral
and Eladio Itchon, both illiterates, were unequivocably positive that the
document burned was indeed Adriana's will. Guadalupe, we think, believed
that the papers she destroyed was the will only because, according to her,
Adriana told her so. Eladio, on the other hand, obtained his information that
the burned document was the will because Guadalupe told him so, thus, his
testimony on this point is double hearsay.
At this juncture, we reiterate that "(it) is an important matter of public
interest that a purported win is not denied legalization on dubious grounds.
Otherwise, the very institution of testamentary succession will be shaken to
its very foundations ...."4
The private respondents in their bid for the dismissal of the present action
for probate instituted by the petitioners argue that the same is already
barred by res adjudicata. They claim that this bar was brought about by the
petitioners' failure to appeal timely from the order dated November 16,
1968 of the trial court in the intestate proceeding (Special Proceeding No.
1736) denying their (petitioners') motion to reopen the case, and their
prayer to annul the previous proceedings therein and to allow the last will
and testament of the late Adriana Maloto. This is untenable.
The doctrine of res adjudicata finds no application in the present
controversy. For a judgment to be a bar to a subsequent case, the following
requisites must concur: (1) the presence of a final former judgment; (2) the
former judgment was rendered by a court having jurisdiction over the
subject matter and the parties; (3) the former judgment is a judgment on
the merits; and (4) there is, between the first and the second action,
Identity of parties, of subject matter, and of cause of action. 5 We do not
find here the presence of all the enumerated requisites.
For one, there is yet, strictly speaking, no final judgment rendered insofar as
the probate of Adriana Maloto's will is concerned. The decision of the trial
court in Special Proceeding No. 1736, although final, involved only the
intestate settlement of the estate of Adriana. As such, that judgment could
not in any manner be construed to be final with respect to the probate of
the subsequently discovered will of the decedent. Neither is it a judgment
on the merits of the action for probate. This is understandably so because
the trial court, in the intestate proceeding, was without jurisdiction to rule
on the probate of the contested will . 6 After all, an action for probate, as it
implies, is founded on the presence of a will and with the objective of
proving its due execution and validity, something which can not be properly
done in an intestate settlement of estate proceeding which is predicated on
the assumption that the decedent left no will. Thus, there is likewise no
Identity between the cause of action in intestate proceeding and that in an
action for probate. Be that as it may, it would be remembered that it was
precisely because of our ruling in G.R. No. L-30479 that the petitioners
instituted this separate action for the probate of the late Adriana Maloto's
will. Hence, on these grounds alone, the position of the private respondents
on this score can not be sustained.
One last note. The private respondents point out that revocation could be
inferred from the fact that "(a) major and substantial bulk of the properties
mentioned in the will had been disposed of: while an insignificant portion of
the properties remained at the time of death (of the testatrix); and,
furthermore, more valuable properties have been acquired after the
execution of the will on January 3,1940." 7 Suffice it to state here that as
these additional matters raised by the private respondents are extraneous
to this special proceeding, they could only be appropriately taken up after
the will has been duly probated and a certificate of its allowance issued.
WHEREFORE, judgment is hereby rendered REVERSING and SETTING ASIDE
the Decision dated June 7, 1985 and the Resolution dated October 22, 1986,
of the respondent Court of Appeals, and a new one ENTERED for the
allowance of Adriana Maloto's last will and testament. Costs against the
private respondents.
 5 Heirs of Matilde Cenizal Arguzon vs. Miclat, No. L-61049, April 15,
1985, 135 SCRA 678; Martinez vs. Court of Appeals, No. L-41425, November
This Decision is IMMEDIATELY EXECUTORY.
11, 1985,139 SCRA 558.

SO ORDERED.
6 See Circa Nila Development Corporation, et. al. vs. Hon. Salvador J.
Baylen, etc., et al., G.R. Nos. 69757-58, January 29, 1988.

Yap (Chairman), Melencio-Herrera, and Paras JJ., concur.

7 Rollo, 75.

Padilla, J., took no part.

The Lawphil Project - Arellano Law Foundation

Footnotes

1 Constancio Maloto, et al. vs. Hon. Emigdio V. Nietes, etc., et al., May Constitution
14, 1969.
Statutes

Executive Issuances
2 G.R. No. L-32328.
Judicial Issuances

Other Issuances
3 G.R. No. L-30479, supra.
Jurisprudence

International Legal Resources

4 Vda. de Precilla vs. Narciso, No. L-27200, August 18, 1972, 46 SCRA
AUSL Exclusive
538, 565-566, quoted in: Maninang vs. Court of Appeals, No. L-57848, June
19, 1982, 114 SCRA 78.

Today is Sunday, September 09, 2018

 brought the case on appeal to this Court for the reason that the value of the
properties involved exceeds P50,000.
Custom Search

Mariano Molo y Legaspi died on January 24, 1941, in the municipality of

Pasay, province of Rizal, without leaving any forced heir either in the
Republic of the Philippines descending or ascending line. He was survived, however, by his wife, the
herein petitioner Juana Juan Vda. de Molo, and by his nieces and nephew,
SUPREME COURT the oppositors-appellants, Luz Gliceria and Cornelio, all surnamed Molo,
Manila who were the legitimate children of Candido Molo y Legaspi, deceased
brother of the testator. Mariano Molo y Legaspi left two wills, one executed
on August 17, 1918, (Exhibit A) and another executed on June 20, 1939.
EN BANC (Exhibit I). The later will executed in 1918.

G.R. No. L-2538 September 21, 1951 On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court of First
Instance of Rizal a petition, which was docketed as special proceeding No.
8022 seeking the probate of the will executed by the deceased on June 20,
1939. There being no opposition, the will was probated. However, upon
Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN
petition filed by the herein oppositors, the order of the court admitting the
VDA. DE MOLO, petitioner-appellee,
will to probate was set aside and the case was reopened. After hearing, at
vs. which both parties presented their evidence, the court rendered decision
denying the probate of said will on the ground that the petitioner failed to
LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants.
prove that the same was executed in accordance with law.

Claro M. Recto and Serafin C. Dizon for appellants.

Delgado & Flores for appellee.
BAUTISTA ANGELO, J.:
This is an appeal from an order of the Court of First Instance of Rizal
admitting to probate the last will and testament of the deceased Mariano
Molo y Legaspi executed on August 17, 1918. The oppositors-appellants
In view of the disallowance of the will executed on June 20, 1939, the
widow on February 24, 1944, filed another petition for the probate of the
will executed by the deceased on August 17, 1918, which was docketed as
special proceeding No. 56, in the same court. Again, the same oppositors
filed an opposition to the petition based on three grounds: (1) that
petitioner is now estopped from seeking the probate of the will of 1918; (2)
that said will has not been executed in the manner required by law and (3)
that the will has been subsequently revoked. But before the second petition
could be heard, the battle for liberation came and the records of the case
were destroyed. Consequently, a petition for reconstitution was filed, but
the same was found to be impossible because neither petitioner nor
oppositors could produce the copies required for its reconstitution. As a
result, petitioner filed a new petition on September 14, 1946, similar to the
one destroyed, to which the oppositors filed an opposition based on the
same grounds as those contained in their former opposition. Then, the case
was set for trial, and on May 28, 1948, the court issued an order admitting
the will to probate already stated in the early part of this decision. From this
order the oppositors appealed assigning six errors, to wit.
I. The probate court erred in not holding that the present petitioner
voluntarily and deliberately frustrated the probate of the will dated June 20,
1939, in special proceeding No. 8022, in order to enable her to obtain the
probate of another alleged will of Molo dated 191.
II. The court a quo erred in not holding that the petitioner is now
estopped from seeking the probate of Molo's alleged will of 1918.
III. The lower court erred in not holding that petitioner herein has
come to court with "unclean hands" and as such is not entitled to relief.
IV. The probate court erred in not holding that Molo's alleged will of
August 17, 1918 was not executed in the manner required by law.
V. The probate court erred in not holding that the alleged will of 1918
was deliberately revoked by Molo himself.
VI. The lower court erred in not holding that Molo's will of 1918 was
subsequently revoked by the decedent's will of 1939.
In their first assignment of error, counsel for oppositors contend that the
probate court erred in not holding that the petitioner voluntarily and
deliberately frustrated the probate of the will dated June 20, 1939, in order
to enable her to obtain the probate of the will executed by the deceased on
August 17, 1918, pointing out certain facts and circumstances with their
opinion indicate that petitioner connived with the witness Canuto Perez in
an effort to defeat and frustrate the probate of the 1939 will because of her
knowledge that said will intrinsically defective in that "the one and only
testamentory disposition thereof was a "disposicion captatoria". These
circumstances, counsel for the appellants contend, constitute a series of
steps deliberately taken by petitioner with a view to insuring the realization
of her plan of securing the probate of the 1918 will which she believed
would better safeguard her right to inherit from the decease.
These imputations of fraud and bad faith allegedly committed in connection
with special proceedings No. 8022, now closed and terminated, are
vigorously met by counsel for petitioner who contends that to raise them in
these proceedings which are entirely new and distinct and completely
independent from the other is improper and unfair as they find no support
whatsoever in any evidence submitted by the parties in this case. They are
merely based on the presumptions and conjectures not supported by any
proof. For this reason, counsel, contends, the lower court was justified in
disregarding them and in passing them sub silentio in its decision.
A careful examination of the evidence available in this case seems to justify
this contention. There is indeed no evidence which may justify the
insinuation that petitioner had deliberately intended to frustrate the
probate of the 1939 will of the deceased to enable her to seek the probate
of another will other than a mere conjecture drawn from the apparently
unexpected testimony of Canuto Perez that he went out of the room to
answer an urgent call of nature when Artemio Reyes was signing the will
and the failure of petitioner later to impeach the character of said witness in
spite of the opportunity given her by the court to do so. Apart from this
insufficiency of evidence, the record discloses that this failure has been
explained by petitioner when she informed the court that she was unable to
impeach the character of her witness Canuto Perez because of her inability
to find witnesses who may impeach him, and this explanation stands
uncontradicted. Whether this explanation is satisfactory or not, it is not
now, for us to determine. It is an incident that comes within the province of
the former case. The failure of petitioner to present the testimony of
Artemio Reyes at the hearing has also been explained, and it appears that
petitioner has filed because his whereabouts could not be found. Whether
this is true or not is also for this Court to determine. It is likewise within the
province and function of the court in the former case. And the unfairness of
this imputation becomes more glaring when we stock of the developments
that had taken place in these proceedings which show in bold relief the true
nature of the conduct, behavior and character of the petitioner so bitterly
assailed and held in disrepute by the oppositors.
It should be recalled that the first petition for the probate of the will
executed on June 20, 1939, was filed on February 7, 1941, by the petitioner.
There being no opposition, the will was probated. Subsequently, however,
upon petition of the herein oppositors, the order of the court admitting said
will to probate was set aside, over the vigorous opposition of the herein
petitioner, and the case was reopened. The reopening was ordered because
of the strong opposition of the oppositors who contended that he will had
not been executed as required by law. After the evidence of both parties
had been presented, the oppositors filed an extensive memorandum
wherein they reiterated their view that the will should be denied probate.
And on the strenght of this opposition, the court disallowed the will.
If petitioner then knew that the 1939 will was inherently defective and
would make the testamentary disposition in her favor invalid and
ineffective, because it is a "disposicion captatoria", which knowledge she
may easily acquire through consultation with a lawyer, there was no need
her to go through the order of filing the petition for the probate of the will.
She could accomplish her desire by merely suppressing the will or tearing or
destroying it, and then take steps leading to the probate of the will
executed in 1918. But for her conscience was clear and bade her to take the
only proper step possible under the circumstances, which is to institute the
necessary proceedings for the probate of the 1939 will. This she did and the
will was admitted to probate. But then the unexpected happened. Over her
vigorous opposition, the herein appellants filed a petition for reopening, and
over her vigorous objection, the same was granted and the case was
reopened. Her motion for reconsideration was denied. Is it her fault that the
case was reopened? Is it her fault that the order admitting the will to
probate was set aside? That was a contingency which petitioner never
expected. Had appellants not filed their opposition to the probate of the will
and had they limited their objection to the intrinsic validity of said will, their
plan to defeat the will and secure the intestacy of the deceased would have
perhaps been accomplished. But they failed in their strategy. If said will was
denied probate it is due to their own effort. It is now unfair to impute bad
faith petitioner simply because she exerted every effort to protect her own
interest and prevent the intestacy of the deceased to happen.
Having reached the foregoing conclusions, it is obvious that the court did
not commit the second and third errors imputed to it by the counsel for
appellants. Indeed, petitioner cannot be considered guilty or estoppel which
would prevent her from seeking the probate of the 1918 will simply because
of her effort to obtain the allowance of the 1939 will has failed considering
that in both the 1918 and 1939 wills she was in by her husband as his
universal heir. Nor can she be charged with bad faith far having done so
because of her desire to prevent the intestacy of her husband. She cannot
be blamed being zealous in protecting her interest.
The next contention of appellants refers to the revocatory clause contained
in 1939 will of the deceased which was denied probate. They contend that,
notwithstanding the disallowance of said will, the revocatory clause is valid
and still has the effect of nullifying the prior of 1918.
Counsel for petitioner meets this argument by invoking the doctrine laid
down in the case of Samson vs. Naval, (41 Phil., 838). He contends that the
facts involved in that case are on all fours with the facts of this case. Hence,
the doctrine is that case is here controlling.

There is merit in this contention. We have carefully read the facts involved
in the Samson case we are indeed impressed by their striking similarity with
the facts of this case. We do not need to recite here what those facts are; it
is enough to point out that they contain many points and circumstances in
common. No reason, therefore, is seen by the doctrine laid down in that
case (which we quote hereunder) should not apply and control the present
case.
A subsequent will, containing a clause revoking a previous will, having been
disallowed, for the reason that it was not executed in conformity with the
provisions of section 618 of the Code of Civil Procedure as to the making of
wills, cannot produce the effect of annulling the previous will, inasmuch as
said revocatory clause is void. (41 Phil., 838.)
Apropos of this question, counsel for oppositors make the remark that,
while they do not disagree with the soundness of the ruling laid down in the
Samson case, there is reason to abandon said ruling because it is archaic or
antiquated and runs counter to the modern trend prevailing in American
jurisprudence. They maintain that said ruling is no longer controlling but
merely represents the point of view of the minority and should, therefore,
be abandoned, more so if we consider the fact that section 623 of our Code
of Civil Procedure, which governs the revocation of wills, is of American
origin and as such should follow the prevailing trend of the majority view in
the United States. A long line of authorities is cited in support of this
contention. And these authorities hold the view, that "an express revocation
is immediately effective upon the execution of the subsequent will, and
does not require that it first undergo the formality of a probate
proceeding". (p. 63, appellants' brief .
While they are many cases which uphold the view entertained by counsel
for oppositors, and that view appears to be in controlling the states where
the decisions had been promulgated, however, we are reluctant to fall in
line with the assertion that is now the prevailing view in the United States.
In the search we have made of American authorities on the subject, we
found ourselves in a pool of conflicting opinions perhaps because of the
peculiar provisions contained in the statutes adopted by each State in the
subject of revocation of wills. But the impression we gathered from a review
and the study of the pertinent authorities is that the doctrine laid down in
the Samson case is still a good law. On page 328 of the American
Jurisprudence Vol. 57, which is a revision Published in 1948, we found the
following passages which in our opinion truly reflect the present trend of
American jurisprudence on this matter affecting the revocation of wills:
SEC. 471. Observance of Formalities in Execution of Instrument. —
Ordinarily, statutes which permit the revocation of a will by another writing
provide that to be effective as a revocation, the writing must be executed
with the same formalities which are required to be observed in the
execution of a will. Accordingly, where, under the statutes, attestation is
necessary to the making of a valid will, an unattested non testamentary
writing is not effective to revoke a prior will. It has been held that a writing
fails as a revoking instrument where it is not executed with the formalities
requisite for the execution of a will, even though it is inscribed on the will
itself, although it may effect a revocation by cancellation or obliteration of
the words of the will. A testator cannot reserve to himself the power to
modify a will by a written instrument subsequently prepared but not
executed in the manner required for a will.
SEC, 472. Subsequent Unexecuted, Invalid, or Ineffective Will or
Codicil. — A will which is invalid because of the incapacity of the testator, or
of undue influence can have no effect whatever as a revoking will.
Moreover, a will is not revoked by the unexecuted draft of a later one. Nor
is a will revoked by a defectively executed will or codicil, even though the
latter contains a clause expressly revoking the former will, in a jurisdiction
where it is provided by a controlling statute that no writing other than a
testamentary instrument is sufficient to revoke a will, for the simple reason
that there is no revoking will. Similarly where the statute provides that a will
may be revoked by a subsequent will or other writing executed with the
same formalities as are required in the execution of wills, a defectively
executed will does not revoke a prior will, since it cannot be said that there
is a writing which complies with the statute. Moreover, a will or codicil
which, on account of the manner in which it is executed, is sufficient to pass
only personally does not affect dispositions of real estate made by a former
will, even though it may expressly purport to do so. The intent of the
testator to revoke is immaterial, if he has not complied with the statute. (57
Am. Jur., 328, 329.)
We find the same opinion in the American Law Reports, Annotated, edited
in 1939. On page 1400, Volume 123, there appear many authorities on the
"application of rules where second will is invalid", among which a typical
one is the following:
It is universally agreed that where the second will is invalid on account of
not being executed in accordance with the provisions of the statute, or
where the testator who has not sufficient mental capacity to make a will or
the will is procured through undue influence, or the such, in other words,
where the second will is really no will, it does not revoke the first will or
affect it in any manner. Mort vs. Baker University (193-5) 229 Mo. App., 632,
78 S.W. (2d), 498.
These treaties cannot be mistaken. They uphold the view on which the
ruling in the Samson case is predicated. They reflect the opinion that this
ruling is sound and good and for this reason, we see no justification for
abondoning it as now suggested by counsel for the oppositors.
It is true that our law on the matter (sec. 623, Code Civil Procedure)
provides that a will may be some will, codicil, or other writing executed as
proved in case of wills" but it cannot be said that the 1939 will should be
regarded, not as a will within the meaning of said word, but as "other
writing executed as provided in the case of wills", simply because it was
denied probate. And even if it be regarded as any other writing within the
meaning of said clause, there is authority for holding that unless said writing
is admitted to probate, it cannot have the effect of revocation. (See 57 Am.
Jur. pp. 329-330).
But counsel for oppositors contemned that, regardless of said revocatory
clause, said will of 1918 cannot still be given effect because of the
presumption that it was deliberately revoked by the testator himself. The
oppositors contend that the testator, after executing the 1939 will, and with
full knowledge of the recovatory clause contained said will, himself
deliberately destroyed the original of the 1918 will, and for that reason the
will submitted by petitioner for probate in these proceedings is only a
duplicate of said original.
There is no evidence which may directly indicate that the testator
deliberately destroyed the original of the 1918 will because of his
knowledge of the revocatory clause contained in the will he executed in
1939. The only evidence we have is that when the first will was executed in
1918, Juan Salcedo, who prepared it, gave the original and copies to the
testator himself and apparently they remained in his possession until he
executed his second will in 1939. And when the 1939 will was denied
probate on November 29, 1943, and petitioner was asked by her attorney to
look for another will, she found the duplicate copy (Exhibit A) among the
papers or files of the testator. She did not find the original.
If it can be inferred that the testator deliberately destroyed the 1918 will
because of his knowledge of the revocatory clause of the 1939 will, and it is
true that he gave a duplicate copy thereof to his wife, the herein petitioner,
the most logical step for the testator to take is to recall said duplicate copy
in order that it may likewise be destroyed. But this was not done as shown
by the fact that said duplicate copy remained in the possession of
petitioner. It is possible that because of the long lapse of twenty-one (21)
years since the first will was executed, the original of the will had been
misplaced or lost, and forgetting that there was a copy, the testator deemed
it wise to execute another will containing exactly the same testamentary
dispositions. Whatever may be the conclusion we may draw from this chain
of circumstances, the stubborn fact is that there is no direct evidence of
voluntary or deliberate destruction of the first will by the testator. This
matter cannot be inference or conjectur.
Granting for the sake of argument that the earlier will was voluntarily
destroyed by the testator after the execution of the second will, which
revoked the first, could there be any doubt, under this theory, that said
earlier will was destroyed by the testator in the honest belief that it was no
longer necessary because he had expressly revoked it in his will of 1939? In
other words, can we not say that the destruction of the earlier will was but
the necessary consequence of the testator's belief that the revocatory
clause contained in the subsequent will was valid and the latter would be
given effect? If such is the case, then it is our opinion that the earlier will can
still be admitted to probate under the principle of "dependent relative
revocation".
This doctrine is known as that of dependent relative revocation, and is
usually applied where the testator cancels or destroys a will or executes an
instrument intended to revoke a will with a present intention to make a new
testamentary disposition as a substitute for the old, and the new disposition
is not made or, if made, fails of effect for same reason. The doctrine is n
limited to the existence of some other document, however, and has been
applied where a will was destroyed as a consequence of a mistake of
law. . . . (68 C.J.P. 799).
The rule is established that where the act of destruction is connected with
the making of another will so as fairly to raise the inference that the testator
meant the revocation of the old to depend upon the efficacy of a new
disposition intended to be substituted, the revocation will be conditional
and dependent upon the efficacy of the new disposition; and if, for any
reason, the new will intended to be made as a substitute is inoperative, the
revocation fails and the original will remains in full force. (Gardner, pp. 232,
233.)
This is the doctrine of dependent relative revocation. The failure of a new
testamentary disposition upon whose validity the revocation depends, is
equivalent to the non-fulfillment of a suspensive conditions, and hence
prevents the revocation of the original will. But a mere intent to make at
some time a will in the place of that destroyed will not render the
destruction conditional. It must appear that the revocation is dependent
upon the valid execution of a new will. (1 Alexander, p. 751; Gardner, p.
253.)
We hold therefore, that even in the supposition that the destruction of the
original will by the testator could be presumed from the failure of the
petitioner to produce it in court, such destruction cannot have the effect of
defeating the prior will of 1918 because of the fact that it is founded on the
mistaken belief that the will of 1939 has been validly executed and would be
given due effect. The theory on which this principle is predicated is that the
testator did not intend to die intestate. And this intention is clearly manifest
when he executed two wills on two different occasion and instituted his
wife as his universal heir. There can therefore be no mistake as to his
intention of dying testate.
The remaining question to be determined refers to the sufficiency of the
evidence to prove the due execution of the will.
The will in question was attested, as required by law, by three witnesses,
Lorenzo Morales, Rufino Enriquez, and Angel Cuenca. The first two
witnesses died before the commencement of the present proceedings. So
the only instrumental witness available was Angel Cuenca and under our
law and precedents, his testimony is sufficient to prove the due execution of
the will. However, petitioner presented not only the testimony of Cuenca
but placed on the witness stand Juan Salcedo, the notary public who G.R. No. L-32797 March 27, 1974
prepared and notarized the will upon the express desire and instruction of
the testator, The testimony of these witnesses shows that the will had been
executed in the manner required by law. We have read their testimony and L. TOLENTINO, Petitioner, vs. FRANCISCO DE JESUS, AQUILINO PASCUAL,
we were impressed by their readiness and sincerity. We are convinced that and HONORABLE COURT OF APPEALS, Respondents.
they told the truth.

Salonga, Ordoñez, Sicat, Yap and Associates for petitioner.

Wherefore, the order appealed from is hereby affirmed, with costs against
the appellants.1âwphïl.nêt
Sumulong Law Office for respondents.

Paras, C.J. Feria, Pablo Bengzon, Tuason and Jugo JJ., concur.
MAKASIAR, J.:

The Lawphil Project - Arellano Law Foundation Petitioner Pio L. Tolentino seeks a reversal of the decision of the respondent
Court of Appeals promulgated August 24, 1970. The respondent Court of
Appeals summarized the evidence of petitioner and private respondents,
thus:

Petitioner's pertinent evidence: He began his service in the police force of

Constitution
Antipolo way back in 1934. On September 1, 1939, he was appointed
Statutes sergeant of police (Exhibit F) and on March 30, 1958, as Chief of Police
(Exhibit G). The latter appointment was "AUTHORIZED as temporary
Executive Issuances
pending receipt of the required medical certificate up to June 1st, 1959, and
Judicial Issuances APPROVED as permanent, subject to the usual physical and medical
examination effective June 19, 1959" by the Commissioner of Civil Service.
Other Issuances Petitioner was issued an insurance policy (Exhibit I) by the Government
Jurisprudence Service Insurance System on October 1, 1958. On April 18, 1960, he was
extended another appointment with an increase in salary effective July 1,
International Legal Resources 1959 (Exhibit H-2). The civil service commission gave on November 23,
AUSL Exclusive 1963, an examination for municipal chief of police (qualifying). He took and
passed the examination and his rating was released on January 31, 1964
(Exhibit E). In a fourth Indorsement (Exhibit D) by the Commissioner of Civil
Service to respondent Mayor dated April 13, 1964, which "refers to the
appointment of Mr. Pio L. Tolentino as chief of police of that municipality at
P2,280.00 per annum effective July 1, 1959" and his dismissal from the
service on January 22, 1964, the Commissioner stated among other things
that "considering Mr. Tolentino's passing the examination, his occupancy of
the position before the release of the results of the examination, and his
residence at Antipolo, Rizal, he is entitled to preference either for retention
or appointment to the position involved." The indorsement concluded that
"the dismissal order of that office should be recalled and Mr. Tolentino
should be reinstated in the service. This office has approved the
appointment of Mr. Tolentino under Section 24(c) of Republic Act 2260, in
view of the pendency of the centempt case against him." The advice to
reinstate petitioner was not heeded by respondent Mayor who had
appointed another member of the police force, one Jose S. Oliveros, to the
position in question.chanroblesvirtualawlibrarychanrobles virtual law library
Respondent Mayor presented the following evidence: (1) A second
indorsement to him by the Commissioner of Civil Service (Exhibit 9), dated
February 9, 1965, anent the claim of Jose Oliveros for the payment of his
salaries for the period from January 23 to December 15, 1964 wherein the
commissioner, after reviewing the circumstances attendant to the dismissal
of petitioner and the appointment of Oliveros, including the fourth
indorsement dated April 13, 1964 (Exhibit D), stated: "Under the
circumstances and on the basis of a valid and subsisting appointment which
has been approved by all authorities concerned, it, would appear that Mr.
Oliveros is entitled to salaries claimed for the period from January 23 to
December 15, 1964, for services actually rendered. Moreover, it appears
that the termination of Mr. Tolentino's services as chief of police on January
22, 1964 is legal, considering that his last appointment as such is temporary
which is good only until another appointment is made to take its place." (2)
A letter of the Commissioner to petitioner dated February 28, 1966 (Exhibit
12) informing the latter that his "examination papers in the chief of police
examination, as well as (his) eligibility resulting therefrom" were cancelled,
it appearing that he had failed to explain why his application for the
examination should not be disapprove in view of his failure to mention in his
answer to question No. 6 of the application a criminal case filed against him
although it was dismissed, the same being called for by the question,, and
which, had it been stated could have been ground for his disqualification to
take the examination pursuant to Section 17 of Executive Order 175 S. 1938.
It is also claimed that Oliveros has already acquired chief of police eligibility
under Section 9 of Republic Act No. 4864 and Memorandum Circular No 1,
S. 1967 of the Civil Service Commission (see p. 492,
Expediente).chanroblesvirtualawlibrarychanrobles virtual law library
xxx xxx xxxchanrobles virtual law library
Petitioner makes no pretense to any civil service eligibility except that of
chief of police which he acquired by passing the examination given therefor
on November 23, 1963. Although his first appointment on March 30, 1958
(Exhibit G) was approved as a permanent appointment, as he claims still in
legal contemplation he was not actually a permanent appointee under the
Civil Service Law since a permanent appointment implies civil service
eligibility (Ferrer, et al. vs. Hechanova, et al., L-24418, January 25, 1967, 19
SCRA 105). Let us take a closer look at petitioner's appointments. His first,
Exhibit C, carried the notation "AUTHORIZED as temporary ... up to June 18,
1959, and APPROVED as permanent ... effective June 19, 1959." His second
dated April 1, 1958 (Exhibit H) with an increase in salary effective July 1,
1958, was "APPROVED subject to the usual physical and medical
examination" by the Commissioner of Civil Service. His third dated April 18,
1960 (Exhibit H-2) with another increase in salary effective July 1, 1959, was
merely attested by the provincial treasurer. In petitioner's Exhibit D, an
indorsement of the Commissioner, dated April 13, 1964, involving
petitioner's third appointment, it was therein stated that said appointment
was approved under Section 24 (c) of Republic Act 2260 which refers to
provisional appointments. And finally in another indorsement of the
Commissioner dated February 9, 1965 (Exhibit 9), it was also stated that
petitioner's last appointment was temporary. His acceptance of said
appointment as temporary, the one subsisting when he was dismissed on
January 22, 1964, removed him from the constitutional protection to
security of tenure (Limchaypo vs. Court of Appeals, L-19528, December 29,
1964). Holding office under a temporary appointment, petitioner's
employment can be terminated at will and without need to show that the Rizal although the same was subsequently dismissed (Exhs. 11 &
termination is for cause (Taboada vs. Municipality of Badian, et al., 12).chanroblesvirtualawlibrarychanrobles virtual law library

L-14604, May 31, 1961; Cunado, et al. vs. Gamus et al., L-16782-83, May 30,
1963; Aguila vs. Castro, L-23778, December 24, 1965).
As correctly ruled by the Court of Appeals, acceptance of a temporary
appointment divests the temporary appointee of the constitutional security
of tenure against removal without cause even if he is a civil service eligible
It is patent from the foregoing recital that petitioner does not have any civil
(Mendiola, et al. vs. Tancinco, et al., L-26950, July 13, 1973, 52 SCRA 66, 71;
service eligibility except that of chief of police, the examination given
Festejo vs. Barreras, et al., L-25074, Dec. 27, 1969, 30 SCRA 873, 879;
therefor on November 23, 1963 which he passed according to the results
Esquillo vs. Ovido L-30341, Aug. 22, 1969, 29 SCRA 30, 32; Barangan vs.
released on January 31, 1964; that the respondent Mayor in his letter to
Hernando, L-28652, Feb. 28, 1969, 27 SCRA 239; Santos vs. Chico, L-24155,
petitioner dated January 22, 1964 stated that his appointment as chief of
Sept. 30, 1968, 23 SCRA 343, 346; Jimenea vs. Ganzon, Jan. 22, 1968, 22
police was terminated effective immediately but not later than the close of
SCRA 226, 229).chanroblesvirtualawlibrarychanrobles virtual law library
office hours on January 22, 1964 "for lack of the requisite civil service
eligibility" (Exhibit A); that petitioner's passing the police chief examination
was known only on January 31, 1964, about nine days after his provisional
Because petitioner had no civil service eligibility until he passed the chief of
appointment was terminated; that in an indorsement dated April 13, 1964,
police examination given on November 23, 1963, he could not be legally
the Commissioner of Civil Service stated that petitioner, having passed the
extended a permanent appointment to any position in the civil service prior
chief of police examination, "is entitled to preference either for retention or
to January 31, 1964 when the list of successful examinees was officially
appointment ..., the dismissal order should be recalled and Mr. Tolentino
released. His having passed the said chief of police examination, did not ipso
should be reinstated ...," approved the appointment of petitioner as chief of
facto convert his temporary appointment into a permanent one (Jimenez vs.
police effective July 1, 1959 "under Sec. 24(c) of Rep. Act 2260, in view of
Francisco, et al., 100 Phil. 1025).chanroblesvirtualawlibrarychanrobles
the pendency of the contempt case against him" (Exh. D or 8), which Section
virtual law library
24(c) refers to provisional appointments; that in another indorsement of the
commissioner of civil service dated February 9, 1965, said commissioner
stated "that the termination of Mr. Tolentino's services as chief of police on
January 24, 1964 (should be January 22, 1964) is legal, considering that his The findings of facts of the respondent Court of Appeals are conclusive on
last appointment as such is temporary which is good only until another the parties and on this Court (Tamayo vs. Callejo, L-25563, July 28, 1972, 46
appointment is made to take its place" (Exh. 9); that he accepted the said SCRA 27; Nery, et al. vs. Lorenzo, et al., L-23096 & L-23376, April 27, 1972,
temporary appointment, which was the one subsisting when he was 44 SCRA 431; Viacrucis vs. CA, L-29831, March 29, 1972, 44 SCRA 176; Dela
dismissed on January 22, 1964 by the respondent mayor; and that in a Cruz, et al. vs. CA, L-24000, Nov. 29, 1971, 42 SCRA 68; Naga Dev. Corp. vs.
subsequent letter to petitioner dated February 28, 1966, the civil service CA, L-28175, Sept. 30, 1971, 41 SCRA 105, 115; Lacson & Basilio vs. Pineda,
commissioner cancelled the chief of police civil service eligibility of et al., L-28523, July 16, 1971, 40 SCRA 35; Quiñano, et al. vs. CA, et al., L-
petitioner because petitioner failed to state in his application for chief of 23024, May 31, 1971, 39 SCRA 227; Reyes, et al. vs. CA, et al., L-28466,
police examination dated October 28, 1963 that he was accused of March 27, 1971, 38 SCRA 138, 142; Gotamco Hermanas vs. Shotwell, et al.,
prolonging the performance of duties and powers under Article 237 of the L-22519, March 27, 1971, 38 SCRA 112-117; Limjoco vs. CA, L-20656, Feb.
Revised Penal Code, in Crim. Case No. 11285 of the Court of First Instance of 27, 1971, 37 SCRA 663-669; De Garcia, et al. vs. CA, L-20264, Jan. 30, 1971,
37 SCRA 130, 136-137; Simeon vs. Peña, L-29049, Dec. 29, 1970, 36 SCRA
611), unless (1) the conclusion is a finding grounded entirely on speculation,
surmise and conjectures; (2) the inference made is manifestly mistaken; (3)
There is no showing that the petitioner secured a reconsideration of the
there is grave abuse of discretion; (4) the judgment is based on
1966 cancellation of his civil service eligibility nor a reversal of the same by
misapprehension of facts; (5) the Court of Appeals went beyond the issues
the Office of the President. Consequently, the cancellation stands and
of the case and its findings are contrary to the admission of both appellant
petitioner is devoid of any chief of police civil service eligibility to qualify
and appellees [Roque vs. Buan, L-22459, Oct. 31, 1967, 21 SCRA 648]; (6)
him for appointment to and to entitle him to remain in the position of chief
the findings of facts of the Court of Appeals are contrary to those of the trial
of police.chanroblesvirtualawlibrarychanrobles virtual law library
court; (7) said findings of facts are conclusions without citation of specific
evidence on which they are based; (8) the facts set forth in the petition as
well as in the petitioner's main and reply briefs are not disputed by the
respondents [Garcia vs. CA, L-26490, June 30, 1970, 33 SCRA 622]; and (9) Furthermore, in an order dated May 27, 1960 of then Judge Cecilia Muñoz
when the finding of fact of the Court of Appeals is premised on the absence Palma of the Court of First Instance of Rizal in Civil Case No. 6125 entitled
of evidence and is contradicted by evidence on record [Salazar vs. Gutierrez, "Rev. Fr. Pedro A. Hilario, etc., plaintiff, vs. Municipality of Antipolo,
L-21727, May 29, 1970, 33 SCRA 243].chanroblesvirtualawlibrarychanrobles defendant," petitioner Pio L. Tolentino was adjudged guilty of contempt for
virtual law library violation of the preliminary injunction issued in said case and sentenced to
thirty (30) days imprisonment (Exh. 4-A), which conviction was affirmed on
April 23, 1968 by the Court of Appeals in a decision penned by Mr. Justice
Jesus Perez with the penalty modified to only a fine of P200.00 with
Nowhere in his petition nor in his brief does petitioner dispute the express
subsidiary imprisonment in case of insolvency (see Maximo Gatlabayan et
finding of the respondent Court of Appeals that the Commissioner of Civil
al. vs. People of the Philippines, CA No. 10250-
Service in his indorsement dated February 9, 1965 stated that petitioner's
CR).chanroblesvirtualawlibrarychanrobles virtual law library
last appointment was temporary, that petitioner accepted the same and
that such temporary appointment was the one subsisting at the time of his
dismissal on January 22, 1964. Nor does petitioner negate the finding of fact
of the respondent Court of Appeals that the letter of the Commissioner of Such conviction hardly qualifies petitioner for the position of chief of police.
Civil Service to petitioner dated February 28, 1966 (Exh. 12) informed the Precisely, the Commissioner of Civil Service, in his indorsement dated April
latter that" "his examination papers in the chief of police examination, as 31, 1964, approved his appointment as provisional merely because of the
well as (his) eligibility resulting therefrom" were cancelled because he had pendency then of the contempt case against him. The inevitable conclusion
failed to explain why his application for the examination should not be is that if he were then already convicted by final judgment, the
disapproved in view of his failure to mention in his answer to question No. 6 Commissioner would have disapproved his
of the application about a criminal case filed against him although it was appointment.chanroblesvirtualawlibrarychanrobles virtual law library
dismissed, the same being called for by the question, and which, had it been
stated, could have been ground for his disqualification to take the
examination pursuant to Sec. 17 of Executive Order No. 175 S 1938." His WHEREFORE, THE PETITION IS HEREBY DISMISSED AND THE APPEALED
failure to give the required explanation affects his moral integrity which DECISION OF THE COURT OF APPEALS DATED AUGUST 24, 1970 IS HEREBY
disqualifies him from continuing in the position and constitutes AFFIRMED, WITH COSTS AGAINST PETITIONER.
unsatisfactory conduct to justify his being dropped from the
service.chanroblesvirtualawlibrarychanrobles virtual law library
Makalintal, C.J., Castro, Teehankee and Esguerra, JJ.,
concur.chanroblesvirtualawlibrarychanrobles virtual law library
Claro M. Recto and Benigno S. Aquino for petitioner.

Esperanza de la Cruz and Heracio Abistao for respondents.

Muñoz Palma J., took no part.
Sotto and Sotto for intervenors.

LAUREL, J.:

Today is Sunday, September 09, 2018

On May 28, 1931, the petitioner herein filed in the Court of First Instance of
Pampanga a petition for the probate of the will of his deceased wife, Ines
Basa. Without any opposition, and upon the testimony of Benigno F.
Custom Search
Gabino, one of the attesting witnesses, the probate court, on June 27,1931,
admitted the will to probate. Almost three years later, on April 11, 1934, the
five intervenors herein moved ex parte to reopen the proceedings, alleging
lack of jurisdiction of the court to probate the will and to close the
Republic of the Philippines proceedings. Because filed ex parte, the motion was denied. The same
motion was filed a second time, but with notice to the adverse party. The
SUPREME COURT motion was nevertheless denied by the probate court on May 24, 1934. On
Manila appeal to this court, the order of denial was affirmed on July 26, 1935. (Basa
vs. Mercado, 33 Off. Gaz., 2521.)

EN BANC
It appears that on October 27, 1932, i. e., sixteen months after the probate
of the will of Ines Basa, intervenor Rosario Basa de Leon filed with the
justice of the peace court of San Fernando, Pampanga, a complaint against
G.R. No. 45629 September 22, 1938
the petitioner herein, for falsification or forgery of the will probated as
above indicated. The petitioner was arrested. He put up a bond in the sum
of P4,000 and engaged the services of an attorney to undertake his defense.
ANTILANO G. MERCADO, petitioner,
Preliminary investigation of the case was continued twice upon petition of
vs. the complainant. The complaint was finally dismissed, at the instance of the
complainant herself, in an order dated December 8, 1932. Three months
ALFONSO SANTOS, Judge of First Instance of Pampanga, respondents. later, or on March 2, 1933, the same intervenor charged the petitioner for
ROSARIO BASA DE LEON, ET AL., intervenors. the second time with the same offense, presenting the complaint this time
in the justice of the peace court of Mexico, Pampanga. The petitioner was
again arrested, again put up a bond in the sum of P4,000, and engaged the
services of counsel to defend him. This second complaint, after
Petitioner contends (1) that the probate of the will of his deceased wife is a
investigation, was also dismissed, again at the instance of the complainant
bar to his criminal prosecution for the alleged forgery of the said will; and,
herself who alleged that the petitioner was in poor health. That was on April
(2) that he has been denied the constitutional right to a speedy trial.
27, 1933. Some nine months later, on February 2, 1934, to be exact, the
same intervenor accused the same petitioner for the third time of the same
offense. The information was filed by the provincial fiscal of Pampanga in
the justice of the peace court of Mexico. The petitioner was again arrested, 1. Section 306 of our Code of Civil Procedure provides as to the effect
again put up a bond of P4,000, and engaged the services of defense counsel. of judgments.
The case was dismissed on April 24, 1934, after due investigation, on the
ground that the will alleged to have been falsified had already been
probated and there was no evidence that the petitioner had forged the SEC. 306. Effect of judgment. — The effect of a judgment or final
signature of the testatrix appearing thereon, but that, on the contrary, the order in an action or special proceeding before a court or judge of the
evidence satisfactorily established the authenticity of the signature Philippine Islands or of the United States, or of any State or Territory of the
aforesaid. Dissatisfied with the result, the provincial fiscal, on May 9, 1934, United States, having jurisdiction to pronounce the judgment or order, may
moved in the Court of First Instance of Pampanga for reinvestigation of the be as follows.
case. The motion was granted on May 23, 1934, and, for the fourth time,
the petitioner was arrested, filed a bond and engaged the services of
counsel to handle his defense. The reinvestigation dragged on for almost a 1. In case of a judgment or order against a specific thing, or in respect
year until February 18, 1934, when the Court of First Instance ordered that to the probate of a will, or the administration of the estate of a deceased
the case be tried on the merits. The petitioner interposed a demurrer on person, or in respect to the personal, political, or legal condition or relation
November 25, 1935, on the ground that the will alleged to have been forged of a particular person, the judgment or order is conclusive upon the title of
had already been probated. This demurrer was overruled on December 24, the thing, the will or administration, or the condition or relation of the
1935, whereupon an exception was taken and a motion for reconsideration person Provided, That the probate of a will or granting of letters of
and notice of appeal were filed. The motion for reconsideration and the administration shall only be prima facie evidence of the death of the
proposed appeal were denied on January 14, 1936. The case proceeded to testator or intestate.
trial, and forthwith petitioner moved to dismiss the case claiming again that
the will alleged to have been forged had already been probated and,
further, that the order probating the will is conclusive as to the authenticity xxx xxx xxx
and due execution thereof. The motion was overruled and the petitioner
filed with the Court of Appeals a petition for certiorari with preliminary
injunction to enjoin the trial court from further proceedings in the matter. (Emphasis ours.)
The injunction was issued and thereafter, on June 19, 1937, the Court of
Appeals denied the petition for certiorari, and dissolved the writ of
preliminary injunction. Three justices dissented in a separate opinion. The Section 625 of the same Code is more explicit as to the conclusiveness of
case is now before this court for review on certiorari. the due execution of a probate will. It says.
 probate of a will are of persuasive authority in this jurisdiction. The Vermont
statute as to the conclusiveness of the due execution of a probated will
SEC. 625. Allowance Necessary, and Conclusive as to Execution. — No
reads as follows.
will shall pass either the real or personal estate, unless it is proved and
allowed in the Court of First Instance, or by appeal to the Supreme Court;
and the allowance by the court of a will of real and personal estate shall be
SEC. 2356. No will shall pass either real or personal estate, unless it is
conclusive as to its due execution. (Emphasis ours.)
proved and allowed in the probate court, or by appeal in the county or
supreme court; and the probate of a will of real or personal estate shall be
conclusive as to its due execution. (Vermont Statutes, p. 451.)
(In Manahan vs. Manahan 58 Phil., 448, 451), we held:

Said the Supreme Court of Vermont in the case of Missionary Society vs.
. . . The decree of probate is conclusive with respect to the due execution
Eells (68 Vt., 497, 504): "The probate of a will by the probate court having
thereof and it cannot be impugned on any of the grounds authorized by law,
jurisdiction thereof, upon the due notice, is conclusive as to its due
except that of fraud, in any separate or independent action or proceeding.
execution against the whole world. (Vt. St., sec. 2336; Fosters Exrs. vs.
Sec. 625, Code of Civil Procedure; Castañeda vs. Alemany, 3 Phil., 426;
Dickerson, 64 Vt., 233.)"
Pimentel vs. Palanca, 5 Phil., 436; Sahagun vs. De Gorostiza, 7 Phil., 347;
Limjuco vs. Ganara, 11 Phil., 393; Montañano vs. Suesa, 14 Phil., 676; in re
Estate of Johnson, 39 Phil, 156; Riera vs. Palmaroli, 40 Phil., 105; Austria vs.
The probate of a will in this jurisdiction is a proceeding in rem. The provision
Ventenilla, 21 Phil., 180; Ramirez vs. Gmur, 42 Phil., 855; and Chiong Jocsoy
of notice by Publication as a prerequisite to the allowance of a will is
vs. Vano, 8 Phil., 119.
constructive notice to the whole world, and when probate is granted, the
judgment of the court is binding upon everybody, even against the State.
This court held in the case of Manalo vs. Paredes and Philippine Food Co.
In 28 R. C. L., p. 377, section 378, it is said.
(47 Phil., 938):

The probate of a will by the probate court having jurisdiction thereof is

The proceeding for the probate of a will is one in rem (40 Cyc., 1265), and
usually considered as conclusive as to its due execution and validity, and is
the court acquires jurisdiction over all the persons interested, through the
also conclusive that the testator was of sound and disposing mind at the
publication of the notice prescribed by section 630 of the Code of Civil
time when he executed the will, and was not acting under duress, menace,
Procedure, and any order that may be entered therein is binding against all
fraud, or undue influence, and that the will is genuine and not a forgery.
of them.
(Emphasis ours.)

Through the publication of the petition for the probate of the will, the court
As our law on wills, particularly section 625 of our Code of Civil Procedure
acquires jurisdiction over all such persons as are interested in said will; and
aforequoted, was taken almost bodily from the Statutes of Vermont, the
decisions of the Supreme Court of the State relative to the effect of the
any judgment that may be rendered after said proceeding is binding against
the whole world.
In Everrett vs. Wing (103 Vt., 488, 492), the Supreme Court of Vermont held.
In this State the probate of a will is a proceeding in rem being in form and
substance upon the will itself to determine its validity. The judgment
determines the status of the instrument, whether it is or is not the will of
the testator. When the proper steps required by law have been taken the
judgment is binding upon everybody, and makes the instrument as to all the
world just what the judgment declares it to be. (Woodruff vs. Taylor, 20 Vt.,
65, 73; Burbeck vs. Little, 50 Vt., 713, 715; Missionary Society vs. Eells, 68
Vt., 497, 504; 35 Atl., 463.) The proceedings before the probate court are
statutory and are not governed by common law rules as to parties or causes
of action. (Holdrige vs. Holdriges Estate, 53 Vt., 546, 550; Purdy vs. Estate of
Purdy, 67 Vt. 50, 55; 30 Atl., 695.) No process is issued against anyone in
such proceedings, but all persons interested in determining the state or
conditions of the instrument are constructively notified by the publication of
notice as required by G. L. 3219. (Woodruff vs. Taylor, supra; In re Warners
Estate 98 Vt., 254; 271; 127 Atl., 362.)
Section 333, paragraph 4, of the Code of Civil Procedure establishes an
incontrovertible presumption in favor of judgments declared by it to be
conclusive.
SEC. 333. Conclusive Presumptions. — The following presumptions or
deductions, which the law expressly directs to be made from particular
facts, are deemed conclusive.
xxx xxx xxx
4. The judgment or order of a court, when declared by this code to be
conclusive.
Conclusive presumptions are inferences which the law makes so
peremptory that it will not allow them to be overturned by any contrary
proof however strong. (Brant vs. Morning Journal Assn., 80 N.Y.S., 1002,
1004; 81 App. Div., 183; see, also, Joslyn vs. Puloer, 59 Hun., 129, 140, 13
N.Y.S., 311.) The will in question having been probated by a competent
court, the law will not admit any proof to overthrow the legal presumption
that it is genuine and not a forgery.
The majority decision of the Court of Appeals cites English decisions to
bolster up its conclusion that "the judgment admitting the will to probate is
binding upon the whole world as to the due execution and genuineness of
the will insofar as civil rights and liabilities are concerned, but not for the
purpose of punishment of a crime." The cases of Dominus Rex vs. Vincent,
93 English Reports, Full Reprint, 795, the first case being decided in 1721,
were cited to illustrate the earlier English decisions to the effect that upon
indictment for forging a will, the probating of the same is conclusive
evidence in the defendants favor of its genuine character. Reference is
made, however, to the cases of Rex vs. Gibson, 168 English Reports, Full
Reprint, 836, footnote (a), decided in 1802, and Rex vs. Buttery and
Macnamarra, 168 English Reports, Full Reprint, 836, decided in 1818, which
establish a contrary rule. Citing these later cases, we find the following
quotation from Black on Judgments, Vol. II, page 764.
A judgment admitting a will to probate cannot be attacked collaterally
although the will was forged; and a payment to the executor named therein
of a debt due the decedent will discharge the same, notwithstanding the
spurious character of the instrument probated. It has also been held that,
upon an indictment for forging a will, the probate of the paper in question is
conclusive evidence in the defendants favor of its genuine character. But
this particular point has lately been ruled otherwise.
 possession. If one person claims to be the owner under a will, and another
denies the validity of the will and claims to be the owner as heir at law, an
It was the case of Rex vs. Buttery, supra, which induced the Supreme Court
action of ejectment is brought against the party who may be in possession
of Massachussetts in the case of Waters vs. Stickney (12 Allen 1; 90 Am.
by the adverse claimant; and on the trial of such an action, the validity of
Dec., 122) also cited by the majority opinion, to hold that "according to later
the will is contested, and evidence may be given by the respective parties as
and sounder decisions, the probate, though conclusive until set aside of the
to the capacity of the testator to make a will, or as to any fraud practiced
disposition of the property, does not protect the forger from punishment."
upon him, or as to the actual execution of it, or as to any other circumstance
This was reproduced in 28 R.C.L., p. 376, and quoted in Barry vs. Walker
affecting its character as a valid devise of the real estate in dispute. The
(103 Fla., 533; 137 So., 711, 715), and Thompson vs. Freeman (149 So., 740,
decision upon the validity of the will in such action becomes res adjudicata,
742), also cited in support of the majority opinion of the Court of Appeals.
and is binding and conclusive upon the parties to that action and upon any
The dissenting opinion of the Court of Appeals in the instant case under
person who may subsequently acquire the title from either of those parties;
review makes a cursory study of the statutes obtaining in England,
but the decision has no effect upon other parties, and does not settle what
Massachussetts and Florida, and comes to the conclusion that the decisions
may be called the status or character of the will, leaving it subject to be
cited in the majority opinion do not appear to "have been promulgated in
enforced as a valid will, or defeated as invalid, whenever other parties may
the face of statutes similar to ours." The dissenting opinion cites Whartons
have a contest depending upon it. A probate of a will of personal property,
Criminal Evidence (11th ed., sec. 831), to show that the probate of a will in
on the contrary, is a judicial determination of the character of the will itself.
England is only prima facie proof of the validity of the will (Op. Cit. quoting
It does not necessarily or ordinarily arise from any controversy between
Marriot vs. Marriot, 93 English Reprint, 770); and 21 L.R.A. (pp. 686689 and
adverse claimants, but is necessary in order to authorize a disposition of the
note), to show that in Massachussetts there is no statute making the
personal estate in pursuance of its provisions. In case of any controversy
probate of a will conclusive, and that in Florida the statute(sec. 1810,
between adverse claimants of the personal estate, the probate is given in
Revised Statutes) makes the probate conclusive evidence as to the validity
evidence and is binding upon the parties, who are not at liberty to introduce
of the will with regard to personal, and prima facie as to real estate. The
any other evidence as to the validity of the will.
cases decided by the Supreme Court of Florida cited by the majority
opinion, supra, refer to wills of both personal and real estate.

The intervenors, on the other hand, attempt to show that the English law on
wills is different from that stated in the case of State vs. McGlynn, supra,
The petitioner cites the case of State vs. McGlynn (20 Cal., 233, decided in
citing the following statutes.
1862), in which Justice Norton of the Supreme Court of California, makes
the following review of the nature of probate proceedings in England with
respect to wills personal and real property.
1. The Wills Act, 1837 (7 Will. 4 E 1 Vict. c. 26).

In England, the probate of wills of personal estate belongs to the

2. The Court of Probate Act, 1857 (20 and 21 Vict. c. 77).
Ecclesiastical Courts. No probate of a will relating to real estate is there
necessary. The real estate, upon the death of the party seized, passes
immediately to the devisee under the will if there be one; or if there be no
will, to the heir at law. The person who thus becomes entitled takes 3. The Judicature Act, 1873 (36 and 37 Vict. c. 66).
 that the decree of the Probate Court, not reversed by the appellate court, is
final and conclusive, and not liable to be vacated or questioned by any other
The Wills Act of 1837 provides that probate may be granted of "every
court, either incidentally or by any direct proceeding, for the purpose of
instrumental purporting to be testamentary and executed in accordance
impeaching it, and that so long as the probate stands the will must be
with the statutory requirements . . . if it disposes of property, whether
recognized and admitted in all courts to be valid, then it will be immaterial
personal or real." The Ecclesiastical Courts which took charge of
and useless to inquire whether the will in question was in fact genuine or
testamentary causes (Ewells Blackstone [1910], p. 460), were determined by
forged. (State vs. McGlynn, 20 Cal., 233; 81 Am. Dec., 118, 121.).
the Court of Probate Act of 1857, and the Court of Probate in turn was,
together with other courts, incorporated into the Supreme Court of
Judicature, and transformed into the Probate Division thereof, by the
Although in the foregoing case the information filed by the State was to set
Judicature Act of 1873. (Lord Halsbury, The Laws of England[1910], pp.
aside the decree of probate on the ground that the will was forged, we see
151156.) The intervenors overlook the fact, however, that the case of Rex
no difference in principle between that case and the case at bar. A subtle
vs. Buttery and Macnamarra, supra, upon which they rely in support of their
distinction could perhaps be drawn between setting aside a decree of
theory that the probate of a forged will does not protect the forger from
probate, and declaring a probated will to be a forgery. It is clear, however,
punishment, was decided long before the foregoing amendatory statutes to
that a duly probated will cannot be declared to be a forgery without
the English law on wills were enacted. The case of State vs. McGlynn may be
disturbing in a way the decree allowing said will to probate. It is at least
considered, therefore, as more or less authoritative on the law of England at
anomalous that a will should be regarded as genuine for one purpose and
the time of the promulgation of the decision in the case of Rex vs. Buttery
spurious for another.
and Macnamarra.

The American and English cases show a conflict of authorities on the

In the case of State vs. McGlynn, the Attorney General of California filed an
question as to whether or not the probate of a will bars criminal
information to set aside the probate of the will of one Broderick, after the
prosecution of the alleged forger of the probate will. We have examined
lapse of one year provided by the law of California for the review of an
some important cases and have come to the conclusion that no fixed
order probating a will, in order that the estate may be escheated to the
standard maybe adopted or drawn therefrom, in view of the conflict no less
State of California for the review of an probated will was forged and that
than of diversity of statutory provisions obtaining in different jurisdictions. It
Broderick therefore died intestate, leaving no heirs, representatives or
behooves us, therefore, as the court of last resort, to choose that rule most
devisees capable of inheriting his estate. Upon these facts, the Supreme
consistent with our statutory law, having in view the needed stability of
Court of California held.
property rights and the public interest in general. To be sure, we have
seriously reflected upon the dangers of evasion from punishment of culprits
deserving of the severity of the law in cases where, as here, forgery is
The fact that a will purporting to be genuine will of Broderick, devising his
discovered after the probate of the will and the prosecution is had before
estate to a devisee capable of inheriting and holding it, has been admitted
the prescription of the offense. By and large, however, the balance seems
to probate and established as a genuine will by the decree of a Probate
inclined in favor of the view that we have taken. Not only does the law
Court having jurisdiction of the case, renders it necessary to decide whether
surround the execution of the will with the necessary formalities and
that decree, and the will established by it, or either of them, can be set
require probate to be made after an elaborate judicial proceeding, but
aside and vacated by the judgment of any other court. If it shall be found
section 113, not to speak of section 513, of our Code of Civil Procedure
provides for an adequate remedy to any party who might have been
adversely affected by the probate of a forged will, much in the same way as
other parties against whom a judgment is rendered under the same or
similar circumstances. (Pecson vs. Coronel, 43 Phil., 358.)The aggrieved
party may file an application for relief with the proper court within a
reasonable time, but in no case exceeding six months after said court has
rendered the judgment of probate, on the ground of mistake, inadvertence,
surprise or excusable neglect. An appeal lies to review the action of a court
of first instance when that court refuses to grant relief. (Banco Español
Filipino vs. Palanca, 37 Phil., 921; Philippine Manufacturing Co. vs. Imperial,
47 Phil., 810; Samia vs. Medina, 56 Phil., 613.) After a judgment allowing a
will to be probated has become final and unappealable, and after the period
fixed by section 113 of the Code of Civil Procedure has expired, the law as
an expression of the legislative wisdom goes no further and the case ends
there.
. . . The court of chancery has no capacity, as the authorities have settled, to
judge or decide whether a will is or is not a forgery; and hence there would
be an incongruity in its assuming to set aside a probate decree establishing
a will, on the ground that the decree was procured by fraud, when it can
only arrive at the fact of such fraud by first deciding that the will was a
forgery. There seems, therefore, to be a substantial reason, so long as a
court of chancery is not allowed to judge of the validity of a will, except as
shown by the probate, for the exception of probate decrees from the
jurisdiction which courts of chancery exercise in setting aside other
judgments obtained by fraud. But whether the exception be founded in
good reason or otherwise, it has become too firmly established to be
disregarded. At the present day, it would not be a greater assumption to
deny the general rule that courts of chancery may set aside judgments
procured by fraud, than to deny the exception to that rule in the case of
probate decrees. We must acquiesce in the principle established by the
authorities, if we are unable to approve of the reason. Judge Story was a
staunch advocate for the most enlarged jurisdiction of courts of chancery,
and was compelled to yield to the weight of authority. He says "No other
excepted case is known to exist; and it is not easy to discover the grounds
upon which this exception stands, in point of reason or principle, although it
is clearly settled by authority. (1 Storys Eq. Jur. sec. 440.)" (State vs.
McGlynn, 20 Cal., 233; 81 Am. Dec., 118, 129. See, also, Tracy vs. Muir, 121
American State Reports, 118, 125.)
We hold, therefore, that in view of the provisions of sections 306, 333 and
625 of our Code of Civil Procedure, criminal action will not lie in this
jurisdiction against the forger of a will which had been duly admitted to
probate by a court of competent jurisdiction.
The resolution of the foregoing legal question is sufficient to dispose of the
case. However, the other legal question with reference to the denial to the
accused of his right to a speedy trial having been squarely raised and
submitted, we shall proceed to consider the same in the light of cases
already adjudicated by this court.
2. The Constitution of the Philippines provides that "In all criminal
prosecutions the accused . . . shall enjoy the right . . . to have a speedy . . .
trial. . . . (Art. III, sec. 1, par. 17. See, also, G.O. No. 58, sec. 15, No. 7.) Similar
provisions are to be found in the Presidents Instructions to the Second
Philippine Commission (par. 11), the Philippine Bill of July 1, 1902 (sec. 5,
par. 2) and the Jones Act of August 29, 1916 (sec. 3, par. 2). The provisions
in the foregoing organic acts appear to have been taken from similar
provisions in the Constitution of the United States (6th Amendment) and
those of the various states of the American Union. A similar injunction is
contained in the Malolos Constitution (art. 8, Title IV), not to speak of other
constitutions. More than once this court had occasion to set aside the
proceedings in criminal cases to give effect to the constitutional injunction
of speedy trial. (Conde vs. Judge of First Instance and Fiscal of Tayabas
[1923], 45 Phil., 173; Conde vs. Rivera and Unson[1924], 45 Phil., 650;
People vs. Castañeda and Fernandez[1936]), 35 Off. Gaz., 1269; Kalaw vs.
Apostol, Oct. 15, 1937, G.R. No. 45591; Esguerra vs. De la Costa, Aug.
30,1938, G.R. No. 46039.).
In Conde vs. Rivera and Unson, supra, decided before the adoption of our
Constitution, we said.
Philippine organic and statutory law expressly guarantee that in all criminal
prosecutions the accused shall enjoy the right to have a speedy trial. Aurelia
Conde, like all other accused persons, has a right to a speedy trial in order
that if innocent she may go free, and she has been deprived of that right in
defiance of law. Dismissed from her humble position, and compelled to
dance attendance on courts while investigations and trials are arbitrarily
postponed without her consent, is palpably and openly unjust to her and a
detriment to the public. By the use of reasonable diligence, the prosecution
could have settled upon the appropriate information, could have attended
to the formal preliminary examination, and could have prepared the case
for a trial free from vexatious, capricious, and oppressive delays.
In People vs. Castañeda and Fernandez, supra, this court found that the
accused had not been given a fair and impartial trial. The case was to have
been remanded to the court a quo for a new trial before an impartial judge.
This step, however, was found unnecessary. A review of the evidence
convinced this court that a judgment of conviction for theft, as charged,
could not be sustained and, having in view the right to a speedy trial
guaranteed by the Constitution to every person accused of crime, entered a
judgment acquitting the accused, with costs de oficio. We said.
. . . The Constitution, Article III, section 1, paragraph 17, guarantees to every
accused person the right to a speedy trial. This criminal proceeding has been
dragging on for almost five years now. The accused have twice appealed to
this court for redress from the wrong that they have suffered at the hands
of the trial court. At least one of them, namely Pedro Fernandez alias Piro,
had been con-fined in prison from July 20, 1932 to November 27, 1934, for
inability to post the required bond of P3,000 which was finally reduced to
P300. The Government should be the last to set an example of delay and
oppression in the administration of justice and it is the moral and legal
obligation of this court to see that the criminal proceedings against the
accused come to an end and that they be immediately dis-charged from the
custody of the law. (Conde vs. Rivera and Unson, 45 Phil., 651.)
In Kalaw vs. Apostol, supra, the petitioner invoked and this court applied
and gave effect to the doctrines stated in the second Conde case, supra. In
granting the writs prayed for, this court, after referring to the constitutional
and statutory provisions guaranteeing to persons accused of crime the right
to a speedy trial, said:
Se infiere de los preceptos legales transcritos que todo acusado en causa
criminal tiene derecho a ser juzgado pronta y publicamente. Juicio rapido
significa un juicioque se celebra de acuerdo con la ley de procedimiento
criminal y los reglamentos, libre de dilaciones vejatorias, caprichosas y
opersivas (Burnett vs. State, 76 Ark., 295; 88S. W., 956; 113 AMSR, 94;
Stewart vs. State, 13 Ark., 720; Peo. vs. Shufelt, 61 Mich., 237; 28 N. W., 79;
Nixon vs. State, 10 Miss., 497; 41 AMD., 601; State vs. Cole, 4 Okl. Cr., 25;
109 P., 736; State vs. Caruthers, 1 Okl. Cr., 428; 98 P., 474; State vs. Keefe,
17 Wyo., 227, 98 p., 122;22 IRANS, 896; 17 Ann. Cas., 161). Segun los hechos
admitidos resulta que al recurrente se le concedio vista parcial del asunto,
en el Juzgado de Primera Instancia de Samar, solo despues de haber
transcurrido ya mas de un año y medio desde la presentacion de la primera
querella y desde la recepcion de la causa en dicho Juzgado, y despues de
haberse transferido dos veces la vista delasunto sin su consentimiento. A
esto debe añadirse que laprimera transferencia de vista era claramente
injustificadaporque el motivo que se alego consistio unicamente en
laconveniencia personal del ofendido y su abogado, no habiendose probado
suficientemente la alegacion del primero de quese hallaba enfermo. Es
cierto que el recurrente habia pedido que, en vez de señalarse a vista el
asunto para el mayo de 1936, lo fuera para el noviembre del mismo año;
pero,aparte de que la razon que alego era bastante fuerte porquesu
abogado se oponia a comparecer por compromisos urgentes contraidos con
anterioridad y en tal circunstancia hubiera quedado indefenso si hubiese
sido obligado a entraren juicio, aparece que la vista se pospuso por el
Juzgado amotu proprio, por haber cancelado todo el calendario judicial
preparado por el Escribano para el mes de junio. Declaramos, con visto de
estos hechos, que al recurrents se leprivo de su derecho fundamental de ser
juzgado prontamente.
Esguerra vs. De la Costa, supra, was a petition for mandamus to compel the
respondent judge of the Court of First Instance of Rizal to dismiss the
complaint filed in a criminal case against the petitioner, to cancel the bond
put up by the said petitioner and to declare the costs de oficio. In accepting
the contention that the petitioner had been denied speedy trial, this court
said:
Consta que en menos de un año el recurrente fue procesado criminalmente
por el alegado delito de abusos deshonestos, en el Juzgado de Paz del
Municipio de Cainta, Rizal. Como consecuencia de las denuncias que contra
el se presentaron fue arrestado tres veces y para gozar de libertad
provisional, en espera de los juicios, se vio obligado a prestartres fianzas por
la suma de P1,000 cada una. Si no se da fin al proceso que ultimamente se
ha incoado contra el recurrente la incertidumbre continuara cerniendose
sobre el y las consiguientes molestias y preocupaciones continuaran
igualmente abrumandole. El Titulo III, articulo 1, No. 17,de la Constitucion
preceptua que en todo proceso criminalel acusado tiene derecho de ser
juzgado pronta y publicamente. El Articulo 15, No. 7, de la Orden General
No. 58 dispone asimismo que en las causas criminales el acusado tendra
derecho a ser juzgado pronta y publicamente. Si el recurrente era realmente
culpable del delito que se le imputo, tenia de todos modos derechos a que
fuera juzgado pronta y publicamente y sin dilaciones arbitrarias y vejatorias.
Hemos declarado reiteradamente que existe un remedio positivo para los
casos en que se viola el derecho constitucional del acusado de ser juzgado
prontamente. El acusado que esprivado de su derecho fundomental de ser
enjuiciado rapidamente tiene derecho a pedir que se le ponga en libertad, si
estuviese detenido, o a que la causa que pende contra el sea sobreseida
definitivamente. (Conde contra Rivera y Unson, 45 Jur. Fil., 682; In the
matter of Ford [1911], 160 Cal., 334; U. S. vs. Fox [1880], 3 Mont., 512;
Kalaw contra Apostol, R. G. No. 45591, Oct. 15, 1937; Pueblo contra
Castañeda y Fernandez, 35 Gac. Of., 1357.)
We are again called upon to vindicate the fundamental right to a speedy
trial. The facts of the present case may be at variance with those of the
cases hereinabove referred to. Nevertheless, we are of the opinion that,
under the circumstances, we should consider the substance of the right
instead of indulging in more or less academic or undue factual
differentiations. The petitioner herein has been arrested four times, has put
up a bond in the sum of P4,000 and has engaged the services of counsel to
undertake his defense an equal number of times. The first arrest was made
upon a complaint filed by one of the intervenors herein for alleged
falsification of a will which, sixteen months before, had been probated in
court. This complaint, after investigation, was dismissed at the
complainant's own request. The second arrest was made upon a complaint
charging the same offense and this complaint, too, was dismissed at the
behest of the complainant herself who alleged the quite startling ground
that the petitioner was in poor health. The third arrest was made following
the filing of an information by the provincial fiscal of Pampanga, which
information was dismissed, after due investigation, because of insufficiency
of the evidence. The fourth arrest was made when the provincial fiscal
secured a reinvestigation of the case against the petitioner on the pretext
that he had additional evidence to present, although such evidence does
not appear to have ever been presented.
It is true that the provincial fiscal did not intervene in the case until February
2, 1934, when he presented an information charging the petitioner, for the
third time, of the offense of falsification. This, however, does not matter.
The prosecution of offenses is a matter of public interest and it is the duty of
the government or those acting in its behalf to prosecute all cases to their
termination without oppressive, capricious and vexatious delay. The
Constitution does not say that the right to a speedy trial may be availed of
only where the prosecution for crime is commenced and undertaken by the
fiscal. It does not exclude from its operation cases commenced by private
individuals. Where once a person is prosecuted criminally, he is entitled to a
speedy trial, irrespective of the nature of the offense or the manner in
which it is authorized to be commenced. In any event, even the actuations
of the fiscal himself in this case is not entirely free from criticism. From
October 27, 1932, when the first complaint was filed in the justice of the
peace court of San Fernando, to February 2, 1934, when the provincial fiscal
filed his information with the justice of the peace of Mexico, one year, three
months and six days transpired; and from April 27, 1933, when the second
criminal complaint was dismissed by the justice of the peace of Mexico, to
February 2, 1934, nine months and six days elapsed. The investigation
following the fourth arrest, made after the fiscal had secured a
reinvestigation of the case, appears also to have dragged on for about a
year. There obviously has been a delay, and considering the antecedent
facts and circumstances within the knowledge of the fiscal, the delay may
not at all be regarded as permissible. In Kalaw vs. Apostol, supra, we
observed that the prosecuting officer all prosecutions for public offenses
(secs. 1681 and 2465 of the Rev. Adm. Code), and that it is his duty to see
that criminal cases are heard without vexatious, capricious and oppressive
delays so that the courts of justice may dispose of them on the merits and
determine whether the accused is guilty or not. This is as clear an
admonition as could be made. An accused person is entitled to a trial at the
earliest opportunity. (Sutherland on the Constitution, p. 664; United States
vs. Fox, 3 Mont., 512.) He cannot be oppressed by delaying he
commencement of trial for an unreasonable length of time. If the
proceedings pending trial are deferred, the trial itself is necessarily delayed.
It is not to be supposed, of course, that the Constitution intends to remove
from the prosecution every reasonable opportunity to prepare for trial.
Impossibilities cannot be expected or extraordinary efforts required on the
part of the prosecutor or the court. As stated by the Supreme Court of the
United States, "The right of a speedy trial is necessarily relative. It is
consistent with delays and depends upon circumstances. It secures rights to
a defendant. It does not preclude the rights of public justice." (Beavers vs.
Haubert [1905], 198 U. S., 86; 25 S. Ct., 573; 49 Law. ed., 950, 954.).
It may be true, as seems admitted by counsel for the intervenors, in
paragraph 8, page 3 of his brief, that the delay was due to "the efforts
towards reaching an amicable extrajudicial compromise," but this fact, we
think, casts doubt instead upon the motive which led the intervenors to
bring criminal action against the petitioner. The petitioner claims that the
intention of the intervenors was to press upon settlement, with the
continuous threat of criminal prosecution, notwithstanding the probate of
the will alleged to have been falsified. Argument of counsel for the
petitioner in this regard is not without justification. Thus after the filing of
the second complaint with the justice of the peace court of Mexico,
complainant herself, as we have seen, asked for dismissal of the complaint,
on the ground that "el acusado tenia la salud bastante delicada," and,
apparently because of failure to arrive at any settlement, she decided to
renew her complaint.
Counsel for the intervenors contend — and the contention is sustained by
the Court of Appeals — that the petitioner did not complain heretofore of
the denial of his constitutional right to a speedy trial. This is a mistake.
When the petitioner, for the fourth time, was ordered arrested by the Court
of First Instance of Pampanga, he moved for reconsideration of the order of
arrest, alleging, among other things, "Que por estas continuas acusaciones e
investigaciones, el acusado compareciente no obstante su mal estado de
salud desde el año 1932 en que tuvo que ser operado por padecer de
tuberculosis ha tenido que sostener litigios y ha sufrido la mar de
humiliaciones y zozobras y ha incudo en enormes gastos y molestias y ha
desatendido su quebrantada salud." The foregoing allegation was inserted
on page 6 of the amended petition for certiorari presented to the Court of
Appeals. The constitutional issue also appears to have been actually raised
and considered in the Court of Appeals. In the majority opinion of that
court, it is stated:
Upon the foregoing facts, counsel for the petitioner submits for the
consideration of this court the following questions of law: First, that the
respondent court acted arbitrarily and with abuse of its authority, with
serious damage and prejudice to the rights and interests of the petitioner, in
allowing that the latter be prosecuted and arrested for the fourth time, and
that he be subjected, also for the fourth time, to a preliminary investigation
for the same offense, hereby converting the court into an instrument of
oppression and vengeance on the part of the alleged offended parties,
Rosario Basa et al.; . . . .

And in the dissenting opinion, we find the following opening paragraph:
We cannot join in a decision declining to stop a prosecution that has
dragged for about five years and caused the arrest on four different
occasions of a law abiding citizen for the alleged offense of falsifying a will
that years be competent jurisdiction.
From the view we take of the instant case, the petitioner is entitled to have
the criminal proceedings against him quashed. The judgment of the Court of
Appeals is hereby reversed, without pronouncement regarding costs. So
ordered.
Avanceña, C.J., Villa-Real, Imperial, Diaz and Concepcion, JJ., concur.
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THIRD DIVISION
[G.R. No. 138731. December 11, 2000]
TESTATE ESTATE OF MARIA MANUEL Vda. DE BIASCAN, petitioner, vs.
ROSALINA C. BIASCAN, respondent.
DECISION
GONZAGA-REYES, J.:
This is a petition for review of the decision[1] of the Court of Appeals in CA-
G.R. SP Case No. 44306 affirming the orders dated October 22, 1996 and
February 12, 1997 of the Regional Trial Court, Branch 4, Manila. These
orders dismissed the appeal of petitioner from the orders dated April 2,
1981 and April 30, 1985 of the same Regional Trial Court.
The facts of the case are as follows:
On June 3, 1975, private respondent Rosalina J. Biascan filed a petition[2]
denominated as Special Proceeding No. 98037 at the then Court of First
Instance, Branch 4, Manila praying for her appointment as administratrix of
the intestate estate of Florencio Biascan and Timotea Zulueta. In an Order
dated August 13, 1975, private respondent was appointed as regular
administratrix of the estates.
On October 10, 1975, Maria Manuel Vda. De Biascan, the legal wife of
Florencio Biascan entered her appearance as Oppositor-Movant in SP. Proc.
No. 98037.[3] Simultaneous with her appearance, she filed a pleading
containing several motions including a motion for intervention, a motion for
the setting aside of private respondents appointment as special
administratrix and administratrix, and a motion for her appointment as
administratrix of the estate of Florencio Biascan.[4]
After an exchange of pleadings between the parties, Judge Serafin Cuevas,
then presiding judge of CFI Manila, Branch 4, issued an Omnibus Order[5]
dated November 13, 1975 which, among others, granted Marias
intervention and set for trial the motion to set aside the Orders appointing
respondent as administratrix.
On April 2, 1981, the trial court issued an Order[6] resolving that: (1) Maria
is the lawful wife of Florencio; (2) respondent and her brother are the
acknowledged natural children of Florencio; (3) all three are the legal heirs
of Florencio who are entitled to participate in the settlement proceedings;
(4) the motion to set aside the order appointing private respondent as
administratrix is denied; and (5) the motion to approve inventory and
appraisal of private respondent be deferred. Maria, through her counsel,
received a copy of this April 2, 1981 Order on April 9, 1981.[7]
On June 6, 1981, or fifty-eight (58) days after he receipt of the April 2, 1981
Order, Maria filed her motion for reconsideration[8] which private
respondent opposed.[9]
On November 15, 1981, the fourth floor of the City Hall of Manila was
completely gutted by fire. The records of the settlement proceedings were
among those lost in the fire. Thus, on January 2, 1985, private respondent
filed a Petition for Reconstitution[10] of the said records.
Due to the delay caused by the fire and the reconstitution of the records, it
was only on April 30, 1985 that the Regional Trial Court of Manila, Branch 4
issued an Order[11] denying Marias June 6, 1981 Motion for
Reconsideration.
Sometime thereafter, Maria died and her testate estate also became the
subject of settlement proceedings. Atty. Marcial F. Lopez was appointed as
interim special administrator and engaged the services of the Siguion Reyna
Montecillo and Ongsiako Law Offices on Behalf of the estate.
On August 21, 1996, the law firm was allegedly made aware of and given
notice of the April 30, 1985 Order when its associate visited Branch 4 of the
Regional Trial Court of Manila to inquire about the status of the case. The
associate checked the records if there was proof of service of the April 30,
1985 Order to the former counsel of Maria, Atty. Marcial F. Lopez, but he
discovered that there was none.[12] He was able to secure a
certification[13] from the Clerk of Court of the Regional Trial Court of
Manila, Branch 4 which stated that there was no proof of service of the
Order dated April 30, 1985 contained in the records of SP. Proc. No. 98037.
A Notice of Appeal[14] dated April 22, 1996 was filed by petitioner from the
Orders dated April 2, 1981 and April 30, 1985 of the trial court. While the
said notice of appeal was dated April 22, 1996, the stamp of the trial court
on the first page of the notice clearly indicated that the same was received
by the trial court on September 20, 1996. A Record of Appeal[15] dated
September 20, 1996 was likewise filed by petitioner.
On October 22, 1996, the trial court issued an Order[16] denying petitioners
appeal on the ground that the appeal was filed out of time. The trial court
ruled that the April 2, 1981 Order which was the subject of the appeal
already became final as the Motion for Reconsideration thereof was filed
sixty-five (65) days after petitioner received the same. In addition, the court
ruled that the notice of appeal itself was filed manifestly late as the same
was filed more than 11 years after the issuance of the June 11, 1985 Order
denying petitioners Motion for Reconsideration. The Motion for
Reconsideration dated November 13, 1996 of petitioner was likewise denied
by the trial court in an Order[17] dated February 12, 1997.
Not satisfied with this decision, petitioner filed a Petition for Certiorari with
Prayer for Mandatory Injunction[18] with the Court of Appeals questioning
the October 12, 1996 and February 12, 1997 Orders of the Regional Trial
Court.
In a Decision[19] dated February 16, 1999, the First Division of the Court of
Appeals denied the petition for certiorari of petitioner. Petitioners Motion
for Reconsideration was likewise denied by the appellate court in a
Resolution[20] dated May 18, 1999.
Hence, this Petition for Review on Certiorari where petitioner sets forth the
following ground for the reversal of the decision of the appellate court:
THE FIRST DIVISION OF THE COURT OF APPEALS (REVIEWING COURT) HAS
SANCTIONED THE DEPARTURE BY THE REGIONAL TRIAL COURT OF MANILA
BRANCH 4 (TRIAL COURT) FROM THE USUAL COURSE OF JUDICIAL
PROCEEDING IN ISSUING THE ASSAILED 16 FEBRUARY 1999 DECISION AND
THE 18 MAY 1999 RESOLUTION WHEN IT AFFIRMED THE ERRONEOUS
FINDING OF THE TRIAL COURT THAT THE ORDER DATED APRIL 2, 1981
BECAME FINAL AND EXECUTORY DESPITE THE FACT THAT NO OPPOSITION
ON ITS TIMELINESS WAS FILED AND MOREOVER NO RULING AS REGARDS
ITS TIMELINESS WAS MADE.[21]
There is no merit in the petition.
Section 1, Rule 109 of the Rules of Court enumerates the orders and
judgments in special proceedings which may be the subject of an appeal.
Thus:
Section 1. Orders or judgments from which appeals may be taken. An
interested person may appeal in a special proceeding from an order or
judgment rendered by a Regional Trial Court or a Juvenile and domestic
Relations Court, where such order or judgment:
(a) Allows or disallows a will;
(b) Determines who are the lawful heirs of a deceased person, or the
distributive shares of the estate to which such person is entitled;
(c) Allows, or disallows, in whole or in part, any claim against the estate of a
deceased person, or any claim presented on behalf of the estate in offset to
a claim against it;
(d) Settles the account of an executor, administrator, trustee or guardian;
(e) Constitutes, in proceedings relating to the settlement of the estate of a
deceased person, or the administration of a trustee or guardian, a final
determination in the lower court of the rights of the party appealing, except
that no appeal shall be allowed from the appointment of a special
administrator; and
(f) Is the final order or judgment rendered in the case, and affects the
substantial rights of the person appealing, unless it be an order granting or
denying a motion for new trial or for reconsideration.
An appeal is allowed in these aforesaid cases as these orders, decrees or
judgments issued by a court in a special proceeding constitute a final
determination of the rights of the parties so appealing.[22] In contrast,
interlocutory orders are not appealable as these are merely incidental to
judicial proceedings. In these cases, the court issuing such orders retains
control over the same and may thus modify, rescind, or revoke the same on
sufficient grounds at any time before the final judgment.[23]
In the instant case, the Order dated April 2, 1981 of the trial court decreed,
among others, that Maria Manuel Vda. De Biascan, the lawful wife of the
deceased Florencio Biascan, private respondent Rosalina Biascan and her
brother, German Biascan, are entitled to participate in the settlement
proceedings. Moreover, the said Order likewise denied Marias motion to set
aside the order appointing private respondent as regular administratrix of
the estate. These rulings of the trial court were precisely questioned by
Maria in her Motion for Reconsideration dated June 6, 1981.
The ruling of the trial court that Maria, private respondent Rosalina Biascan
and German Biascan were entitled to participate in the settlement
proceedings falls squarely under paragraph (b), Section 1, Rule 109 of the
Rules of Court as a proper subject of appeal. By so ruling, the trial court has
effectively determined that the three persons are the lawful heirs of the
deceased. As such, the same may be the proper subject of an appeal.
Similarly, the ruling of the trial court denying petitioners motion to set aside
the order appointing private respondent as the regular administratrix of the
estate of Florencio Bisacan is likewise a proper subject of an appeal. We
have previously held that an order of the trial court appointing a regular
administrator of a deceased persons estate is a final determination of the
rights of the parties thereunder, and is thus, appealable.[24] This is in
contrast with an order appointing a special administrator who is appointed
only for a limited time and for a specific purpose. Because of the temporary
character and special character of this appointment, the Rules deem it not
advisable for any party to appeal from said temporary appointment.[25]
Considering however that private respondent has aleready been appointed
as regular administratrix of the estate of Florencio Biascan, her appointment
as such may be questioned before the appellate court by way of appeal.
It is thus clear that the Order dated April 2, 1981 may be the proper subject
of an appeal in a special proceeding. In special proceedings, such as the
instant proceeding for settlement of estate, the period of appeal from any
decision or final order rendered therein is thirty (30) days, a notice of appeal
and a record on appeal being required.[26] The appeal period may only be
interrupted by the filing of a motion for new trial or reconsideration. Once
the appeal period expires without an appeal or a motion for reconsideration
or new trial being perfected, the decision or order becomes final.
With respect to the Order dated April 2, 1981 issued by the trial court,
petitioner admits that Maria Manuel Vda. De Biascan, its predecessor-in-
interest, received a copy of the same of April 9, 1981. Applying these rules,
Maria or her counsel had thirty (30) days or until May 9 within which to file
a notice of appeal with record on appeal. She may also file a motion for
reconsideration, in which case the appeal period is deemed interrupted.
Considering that it was only June 6, 1981, or a full fifty-eight (58) days after
receipt of the order, that a motion for reconsideration was filed, it is clear
that the same was filed out of time. As such, when the said motion for
reconsideration was filed, there was no more appeal period to interrupt as
the Order had already become final.
Petitioner insists, however, that the order dated April 2, 1981 of the trial
court did not become final and executory as no opposition on its timeliness
was filed and no ruling as regards its timeliness was made. Petitioner argues
that although its motion for reconsideration was denied in the Order dated
April 30, 1985, the denial was made on grounds other than its failure to ask
for a reconsideration within the period prescribed by law. As such,
petitioner concludes, any procedural defect attending the Motion for
Reconsideration was deemed cured when the trial court, in its Order dated
April 30, 1985, took cognizance of the same and rendered its ruling thereon.
There is no merit in this argument.
It is well-settled that judgment or orders become final and executory by
operation of law and not by judicial declaration. Thus, finality of a judgment
becomes a fact upon the lapse of the reglementary period of appeal if no
appeal is perfected[27] or motion for reconsideration or new trial is filed.
The trial court need not even pronounce the finality of the order as the
same becomes final by operation of law. In fact, the trial court could not
even validly entertain a motion for reconsideration filed after the lapse of
the period for taking an appeal.[28] As such, it is of no moment that the
opposing party failed to object to the timeliness of the motion for
reconsideration or that the court denied the same on grounds other than
timeliness considering that at the time the motion was filed, the Order
dated April 2, 1981 had already become final and executory. Being final and
executory, the trial court can no longer alter, modify, or reverse the
questioned order.[29] The subsequent filing of the motion for
reconsideration cannot disturb the finality of the judgment or order.[30]
Even if we assume that the Motion for Reconsideration filed by petitioner
had the effect of suspending the running of the appeal period for the April
2, 1981 Order, it is clear that petitioners notice of appeal of the orders of
the trial court was still filed out of time.
Under Section 3, Rule 41 of the Rules of Court then applicable, the time
during which a motion to set aside the judgment or order or for a new trial
shall be deducted from the period from which to make an appeal. The rule
further states that where the motion was filed during office hours of the last
day of the appeal period, the appeal must be perfected within the day
following that in which the party appealing received notice of the denial of
said motion.
The Order of the trial court denying petitioners Motion for Reconsideration
of the April 2, 1981 Order was issued on April 30, 1985. Allegedly, petitioner
was only made aware of this April 30, 1985 Order on August 21, 1996 when
it inquired from the trial court about the status of the case. Giving petitioner
the benefit of the doubt that it had indeed received notice of the order
denying its motion for reconsideration on August 21, 1996, it follows that
petitioner only had until the following day or on August 22, 1996 within
which to perfect the appeal.
At this point, we note with disapproval petitioners attempt to pass off its
Notice of Appeal as having been filed on August 22, 1996. In all its pleadings
before this Court and the Court of Appeals, petitioner insists that its Notice
of Appeal was filed the day after it secured the August 21, 1996 Certification
from the trial court. While the Notice of Appeal was ostensibly dated August
22, 1996, it is clear from the stamp[31] of the trial court that the same was
received only on September 20, 1996. Moreover, in the Order dated
October 22, 1996 of the trial court denying petitioners appeal, the court
clearly stated that the Notice of Appeal with accompanying Record on
Appeal was filed on September 20, 1996.
Considering that it is clear from the records that petitioners notice of appeal [6] Annex G, Petition; Rollo, pp.58-64.
was filed on September 20, 1996, the same was clearly filed out of time as it
only had until August 22, 1996 within which to file the said pleading. And
while the rules on special proceedings recognize that a motion for extension [7] Rollo, p. 11.
of time to file the notice of appeal and record of appeal may be granted,[32]

[8] Annex H, Petition; Rollo, pp. 65-67.

WHEREFORE, premises considered, we hereby DISMISS the petition for lack
of merit. The decision dated February 16, 1999 and the Resolution dated
May 18, 1999 of the Court of Appeals are hereby AFFIRMED. [9] Annex I, Petition; Rollo, pp. 68-70.

SO ORDERED. [10] Annex J, Petition; Rollo, pp. 71-72.

Melo, (Chairman), Vitug, and Panganiban, JJ., concur. [11] Annex K, Petition; Rollo, p. 73.

[12] Rollo, pp. 12-13.

[1] Per Associate Justice Jesus M. Elbinias with the concurrence of Associate
Justice Eugenio S. Labitoria and Associate Justice Marina L. Buzon.
[13] Annex L, Petition; Rollo, p. 74.

[2] Annex C, Petition; Rollo, pp. 33-35.

[14] Annex M, Petition; Rollo, pp. 76-77.

[3] Rollo, p. 3.
[15] Annex N, Petition; Rollo, pp. 78-80.

[4] Annex E, Petition; Rollo, pp. 37-55.

[16] Annex O, Petition; Rollo, pp. 81-82.

[5] Annex F, Petition; Rollo, pp. 56-57.

[17] Annex P, Petition; Rollo, p. 83.
[18] Annex Q, Petition; Rollo, pp.84-101.

[29] Government Service Insurance Systems vs. Gines, 219 SCRA 724;
Estoesta, Sr. vs. Court of Appeals, 179 SCRA 203; Agricultural and Industrial
[19] Annex A of Petition; Rollo, pp. 23-27.
Marketing, Inc. vs. Court of Appeals, 118 SCRA 49.

[20] Annex B of Petition; Rollo, pp. 29-31.

[30] Pfleider vs. Victoriano, 98 SCRA 491.

[21] Rollo, p. 14.

[31] Rollo, p. 76.

[22] Pan Realty Corporation vs. Court of Appeals, 167 SCRA 564.
[32] Lacsamana vs. Second Special Cases Division of the intermediate
Appellate Court, supra.

[23] Lilian Uy Tengsu Liu vs. Court of Appeals, 164 SCRA 417.

[24] Torres and De Jesus vs. Sicat Vda. De Morales, 93 Phil 155; Si Hong Eng
vs. Sy Lioc Suy, 8 Phil 594.
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[25] De Borja, etc. vs. Tan, etc. and De Borja, 97 Phil 872.
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[26] Section 19 (b), Interim Rules and Guidelines to Implement B.P. Blg. 129;
Lacsamana vs. Second Special Cases Division of the Intermediate Appellate
Court, 143 SCRA 643. Republic of the Philippines

SUPREME COURT

[27] Republic of the Phil. vs. Associacion Benevola de Cebu, 178 SCRA 692; Manila
Munez vs. C.A., 152 SCRA 197.

EN BANC
[28] Destileria Limtuaco & Co., Inc. vs. Court of Appeals, 143 SCRA 91.
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
This is best answered by a reference to the opinion of Mr. Chief Justice
Moran in the Neri case heretofore cited, viz:
But the theory is advanced that the bequest made by universal title in favor
of the children by the second marriage should be treated as legado and
mejora and, accordingly, it must not be entirely annulled but merely
reduced. This theory, if adopted, will result in a complete abrogation of
Articles 814 and 851 of the Civil Code. If every case of institution of heirs
may be made to fall into the concept of legacies and betterments reducing
the bequest accordingly, then the provisions of Articles 814 and 851
regarding total or partial nullity of the institution, would. be absolutely
meaningless and will never have any application at all. And the remaining
provisions contained in said article concerning the reduction of inofficious
legacies or betterments would be a surplusage because they would be
absorbed by Article 817. Thus, instead of construing, we would be
destroying integral provisions of the Civil Code.
The destructive effect of the theory thus advanced is due mainly to a failure
to distinguish institution of heirs from legacies and betterments, and a
general from a special provision. With reference to article 814, which is the
only provision material to the disposition of this case, it must be observed
that the institution of heirs is therein dealt with as a thing separate and
distinct from legacies or betterments. And they are separate and distinct not
only because they are distinctly and separately treated in said article but
because they are in themselves different. Institution of heirs is a bequest by
universal title of property that is undetermined. Legacy refers to specific
property bequeathed by a particular or special title. ... But again an
institution of heirs cannot be taken as a legacy. 25
The disputed order, we observe, declares the will in question "a complete
nullity". Article 854 of the Civil Code in turn merely nullifies "the institution
of heir". Considering, however, that the will before us solely provides for the
institution of petitioner as universal heir, and nothing more, the result is the
same. The entire will is null.
Upon the view we take of this case, the order of November 8, 1963 under
review is hereby affirmed. No costs allowed. So ordered.
 8Black's Law Dictionary, 4th ed., p. 117.

Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Bengzon,

J.P. and Zaldivar, JJ., concur.
9Manresa, id., p. 426.

Footnotes
10Manresa, id., pp. 431-432.

1Castañeda vs. Alemany, 3 Phil. 426, 428; Pimentel vs. Palanca, etc., et al., 5
11VI Sanchez Roman, Estudios de Derecho Civil, 2nd Edition, Volumen 2.o,
Phil. 436, 440-441; Limjuco vs. Ganara, 11 Phil. 393, 394-395; Montañano
p. 1140.
vs. Suesa, 14 Phil. 676, 679; Riera vs. Palmorali, et al., 40 Phil. 105, 116; In re
Estate of Johnson, 39 Phil. 156, 174; Palacios vs. Palacios, 58 O.G. No. 2, 220,
221; Teotico vs. Del Val, etc., L-18753, March 26, 1965.
12VI Sanchez Roman, id., p. 1138. This is also cited in the Neri case, 74 Phil.
192-193.
2Section 13, Rule 76 of the Rules of Court.

Justice J.B.L. Reyes and Judge R.C. Puno, in their work entitled "An Outline
of Philippine Civil Law", 1956 ed., Vol. III, p. 8; citing Gil vs. Murciano, L-
3Section 2, Rule 1, Rules of Court. Case, et al. vs. Jugo, et al., 77 Phil. 517,
3362, March 1, 1951, likewise opined that "the right to make a will is
522.
statutory, not a natural right, and must be subordinate to law and public
policy".

4Betterments are eliminated in the present Civil Code. II Padilla, Civil Code
Annotated, p. 1077.
13Sanchez Roman, id., p. 1141.

5VI Manresa, Commentarios al Codigo Civil Español, 7th Edition, (1951), p.

14Manresa, id., p. 434.
424.

15Petitioner's brief, p. 15.

6Words & Phrases, Vol. 3A, Permanent Ed., p. 3.

16Neri, et al. vs. Akutin, et al., supra, 72 Phil., at p. 325.

7Id., p. 4.
17Justice J.B.L. Reyes and Judge R.C. Puno, id., p. 106. The Lawphil Project - Arellano Law Foundation

18Manresa, id., p. 424. Justice Reyes and Judge Puno, id., 107, speaking of
the requisites of a valid disinheritance, confirm the theory that
disinheritance "must be express (not implied) (Art. 918 ; otherwise there is
preterition". Constitution

Statutes
19Sanchez Roman, id., p. 1131. Executive Issuances

Judicial Issuances
20Arts. 915, 916, Civil Code; II Padilla, Civil Code Annotated, pp. 750-752. Other Issuances

Jurisprudence
21III Tolentino, Civil Code of the Philippines, 1961 Edition, p. 172. International Legal Resources

AUSL Exclusive
22Now one-half, Articles 888 and 889, Civil Code.

THIRD DIVISION
23Manresa, id., p. 430.

[G.R. No. 110427. February 24, 1997]

24Petitioner's brief, p. 13.

The Incompetent, CARMEN CAIZA, represented by her legal guardian,

AMPARO EVANGELISTA, petitioner, vs. COURT OF APPEALS (SPECIAL FIRST
25Neri, et al. vs. Akutin, et al., 74 Phil. pp. 191-192.
DIVISION), PEDRO ESTRADA and his wife, LEONORA ESTRADA, respondents.

Arts. 817 and 851, Civil Code of Spain of 1889, referred to in the opinion
DECISION
above, are now Arts. 907 and 918 of the present Civil Code.

NARVASA, C.J.:
On November 20, 1989, being then ninety-four (94) years of age, Carmen
Caiza, 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[1] of the Regional Trial Court of Quezon
City, Branch 107,[2] in a guardianship proceeding instituted by her niece,
Amparo A. Evangelista.[3] She was so adjudged because of her advanced
age and physical infirmities which included cataracts in both eyes and senile
dementia. Amparo A. Evangelista was appointed legal guardian of her
person and estate.
Caiza was the owner of a house and lot at No. 61 Tobias St., Quezon City. On
September 17, 1990, her guardian Amparo Evangelista commenced a suit in
the Metropolitan Trial Court (MetroTC) of Quezon City (Branch 35) to eject
the spouses Pedro and Leonora Estrada from said premises.[4] The
complaint was later amended to identify the incompetent Caiza as plaintiff,
suing through her legal guardian, Amparo Evangelista.
The amended Complaint[5] pertinently alleged that plaintiff Caiza 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 Caiza 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,
Caiza 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 first letter of demand dated February 3, 1990."
In their Answer with Counterclaim, the defendants declared that they had
been living in Caiza's house since the 1960's; that in consideration of their
faithful service they had been considered by Caiza as her own family, and
the latter had in fact executed a holographic will on September 4, 1988 by
which she "bequeathed" to the Estradas the house and lot in question.
Judgment was rendered by the MetroTC on April 13, 1992 in Caiza's favor,
[6] the Estradas being ordered to vacate the premises and pay Caiza
P5,000.00 by way of attorney's fees.
But on appeal,[7] the decision was reversed by the Quezon City Regional
Trial Court, Branch 96.[8] By judgment rendered on October 21, 1992,[9] the
RTC held that the "action by which the issue of defendants' possession
should be resolved is accion publiciana, the obtaining factual and legal
situation ** demanding adjudication by such plenary action for recovery of
possession cognizable in the first instance by the Regional Trial Court."
Caiza sought to have the Court of Appeals reverse the decision of October
21, 1992, but failed in that attempt. In a decision[10] promulgated on June
2, 1993, the Appellate Court[11] affirmed the RTC's judgment in toto. It
ruled that (a) the proper remedy for Caiza 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
Caiza," 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 Caiza
that defendants are to remain and are to continue in their occupancy and
possession, so much so that Caiza's supervening incompetency can not be
said to have vested in her guardian the right or authority to drive the
defendants out."[12]
Through her guardian, Caiza came to this Court praying for reversal of the I
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 It is axiomatic that what determines the nature of an action as well as which
alleged holographic will, which is irrelevant to this case."[13] court has jurisdiction over it, are the allegations of the complaint and the
character of the relief sought.[17] An inquiry into the averments of the
amended complaint in the Court of origin is thus in order.[18]
In the responsive pleading filed by them on this Court's requirement,[14]
the Estradas insist that the case against them was really not one of unlawful
detainer; they argue that since possession of the house had not been The amended Complaint alleges:[19]
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 "6. That the plaintiff, Carmen Caiza, is the sole and absolute owner of a
never became unlawful) within the context of the law." Neither could the house and lot at No. 61 Scout Tobias, Quezon City, which property is now
suit against them be deemed one of forcible entry, they add, because they the subject of this complaint;
had been occupying the property with the prior consent of the "real owner,"
Carmen Caiza, which "occupancy can even ripen into full ownership once
the holographic will of petitioner Carmen Caiza is admitted to probate." ** ** **
They conclude, on those postulates, that it is beyond the power of Caiza's
legal guardian to oust them from the disputed premises.
9. That the defendants, their children, grandchildren and sons-in-law, were
allowed to live temporarily in the house of plaintiff, Carmen Caiza, for free,
Carmen Caiza died on March 19, 1994,[15] and her heirs -- the out of her kindness;
aforementioned guardian, Amparo Evangelista, and Ramon C. Nevado, her
niece and nephew, respectively -- were by this Court's leave, substituted for
her.[16]
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. **
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,
11. That the plaintiff, represented by her legal guardian, Amparo
as Caiza's legal guardian had authority to bring said action; and (c) assuming
Evangelista, made another demand on the defendants for them to vacate
an affirmative answer to both questions, whether or not Evangelista may
the premises, before Barangay Captain Angelina A. Diaz of Barangay Laging
continue to represent Caiza after the latter's death.
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[20] is quoted below:
"WHEREFORE, in the interest of justice and the rule of law, plaintiff, Carmen
Caiza, represented by her legal guardian. Amparo Evangelista, respectfully
prays to this Honorable Court, to render judgment in favor of plaintiff and
against the defendants as follows:
1. To order the defendants, their children, grandchildren, sons-in-law and
other persons claiming under them, to vacate the house and premises at
No. 61 Scout Tobias, Quezon City, so that its possession can be restored to
the plaintiff, Carmen Caiza: and
2. To pay attorney's fees in the amount of P10,000.00;
3. To pay the costs of the suit."
In essence, the amended complaint states:
1) that the Estradas were occupying Caiza's house by tolerance -- having
been "allowed to live temporarily ** (therein) for free, out of ** (Caiza's)
kindness;"
2) that Caiza 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, Caiza 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 Caiza, 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,[21] and a complaint for unlawful detainer is sufficient if
it alleges that the withholding of possession or the refusal to vacate is
unlawful without necessarily employing the terminology of the law.[22]
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 **
(Caiza'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 (Caiza) of the possession of
** (her property) by force, intimidation, threat, strategy, or stealth."
The argument is arrant sophistry. Caiza'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 act of liberality be
implicitly, but no less certainly, accompanied by the necessary burden on
the Estradas of returning the house to Caiza 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.[23] The situation is not much different from
that of a tenant whose lease expires but who continues in occupancy by
tolerance of the owner, in which case there is deemed to be an unlawful
deprivation or withholding of possession as of the date of the demand to
vacate.[24] In other words, one whose stay is merely tolerated becomes a
deforciant illegally occupying the land or property the moment he is
required to leave.[25] Thus, in Asset Privatization Trust vs. Court of Appeals,
[26] where a company, having lawfully obtained possession of a plant upon
its undertaking to buy the same, refused to return it after failing to fulfill its
promise of payment despite demands, this Court held that "(a)fter demand
and its repudiation, ** (its) continuing possession ** became illegal and the
complaint for unlawful detainer filed by the ** (plant's owner) was its
proper remedy."
It may not be amiss to point out in this connection that where there had
been more than one demand to vacate, the one-year period for filing the
complaint for unlawful detainer must be reckoned from the date of the last
demand,[27] the reason being that the lessor has the option to waive his
right of action based on previous demands and let the lessee remain
meanwhile in the premises.[28] Now, the complaint filed by Caiza's guardian
alleges that the same was "filed within one (1) year from the date of the
first letter of demand dated February 3, 1990." Although this averment is
not in accord with law because there is in fact a second letter of demand to
vacate, dated February 27, 1990, the mistake is inconsequential, since the
complaint was actually filed on September 17, 1990, well within one year
from the second (last) written demand to vacate.
The Estradas' possession of the house stemmed from the owner's express
permission. That permission was subsequently withdrawn by the owner, as
was her right; and it is immaterial that the withdrawal was made through
her judicial guardian, the latter being indisputably clothed with authority to
do so. Nor is it of any consequence that Carmen Caiza 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 Caiza 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 Caiza 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;[29] and until admitted to probate, it has no
effect whatever and no right can be claimed thereunder, the law being quite
explicit: "No will shall pass either real or personal property unless it is
proved and allowed in accordance with the Rules of Court" (ART. 838, id.).
[30] An owner's intention to confer title in the future to persons possessing
property by his tolerance, is not inconsistent with the former's taking back
possession in the meantime for any reason deemed sufficient. And that in
this case there was sufficient cause for the owner's resumption of
possession is apparent: she needed to generate income from the house on
account of the physical infirmities afflicting her, arising from her extreme
age.
Amparo Evangelista was appointed by a competent court the general
guardian of both the person and the estate of her aunt, Carmen Caiza. Her
Letters of Guardianship[31] dated December 19, 1989 clearly installed her
as the "guardian over the person and properties of the incompetent
CARMEN CAIZA 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 **
"[32] By that appointment, it became Evangelista's duty to care for her
aunt's person, to attend to her physical and spiritual needs, to assure her
well-being, with right to custody of her person in preference to relatives and
friends.[33] It also became her right and duty to get possession of, and
exercise control over, Caiza'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.[34] That right to manage the ward's
estate carries with it the right to take possession thereof and recover it from
anyone who retains it,[35] and bring and defend such actions as may be
needful for this purpose. [36]
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.:
 surviving heirs, the other being Caiza's nephew, Ramon C. Nevado. On their
motion and by Resolution of this Court[39] of June 20, 1994, they were in
"SEC. 4. Estate to be managed frugally, and proceeds applied to
fact substituted as parties in the appeal at bar in place of the deceased, in
maintenance of ward. A guardian must manage the estate of his ward
accordance with Section 17, Rule 3 of the Rules of Court, viz.:[40]
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
"SEC. 18. Death of a party. After a party dies and the claim is not thereby
insufficient for that purpose, the guardian may sell or encumber the real
extinguished, the court shall order, upon proper notice, the legal
estate, upon being authorized by order to do so, and apply to such of the
representative of the deceased to appear and be substituted for the
proceeds as may be necessary to such maintenance."
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
Finally, it may be pointed out in relation to the Estradas's defenses in the
representative of the deceased within a time to be specified by the court,
ejectment action, that as the law now stands, even when, in forcible entry
and the representative shall immediately appear for and on behalf of the
and unlawful detainer cases, the defendant raises the question of
interest of the deceased. The court charges involved in procuring such
ownership in his pleadings and the question of possession cannot be
appointment, if defrayed by the opposing party, may be recovered as costs.
resolved without deciding the issue of ownership, the Metropolitan Trial
The heirs of the deceased may be allowed to be substituted for the
Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts
deceased, without requiring the appointment of an executor or
nevertheless have the undoubted competence to resolve. "the issue of
administrator and the court may appoint guardian ad litem for the minor
ownership ** only to determine the issue of possession."[37]
heirs.

III
As already stated, Carmen Caiza passed away during the pendency of this
appeal. The Estradas thereupon moved to dismiss the petition, arguing that
Caiza'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,[38] the rule affords no advantage to the Estradas. Amparo
Evangelista, as niece of Carmen Caiza, is one of the latter's only two (2)
To be sure, an ejectment case survives the death of a party. Caiza's demise
did not extinguish the desahucio suit instituted by her through her guardian.
[41] That action, not being a purely personal one, survived her death; her
heirs have taken her place and now represent her interests in the appeal at
bar.
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals
promulgated on June 2, 1993 -- affirming the Regional Trial Court's
judgment and dismissing petitioner's petition for certiorari -- is REVERSED
and SET ASIDE, and the Decision dated April 13, 1992 of the Metropolitan
Trial Court of Quezon City, Branch 35, in Civil Case No. 3410 is REINSTATED
and AFFIRMED. Costs against private respondents.
SO ORDERED. [10] Rollo, pp. 27-32

Davide, Jr., Melo, Francisco, and Panganiban, JJ., concur. [11] Special First Division composed of Vailoces, J., ponente, with Lantin and
Mabutas, Jr., JJ., concurring.

[12] CA Decision, p. 4, Rollo, p. 30

[1] Petition, Annex "D", Rollo, pp. 41-43.

[13] Petition, p. 11, Rollo p. 18

[2] Presided over by Judge Delilah Vidallon-Magtolis

[14] Rollo, pp. 97-112

[3] Docketed as SP. PROC. No. Q-89-2603 of Branch 107, entitled "Petition
for Guardianship of the Person and Estate of the Incompetent Carmen
Caiza, Amparo A. Evangelista, Petitioner"
[15] Manifestation dated March 25, 1994

[4] Docketed as Civil Case No. 3410 for Ejectment with Damages
[16] Second Division Resolution dated June 20, 1994

[5] Petition, Annex "K", Rollo, pp. 55-59

[17] Sumulong vs. Court of Appeals, 232 SCRA 372 [1994], citing Abrin vs.
Campos, 203 SCRA 420 [1991]; Mariategui vs. Court of Appeals, 205 SCRA
337 [1992]; Abad vs. Court of First Instance, 206 SCRA 567 [1992]; Del
[6] Petition, Annex "B," Rollo, pp. 33-35.
Castillo vs. Aguinaldo, 212 SCRA 169 [1992]; Santos vs. Court of Appeals, 214
SCRA 162 [1992]; Ganadin vs. Ramos, 99 SCRA 6132 (1980); Ramirez v. Chit,
21 SCRA 1364 [1967]; Mediran vs. Villanueva, 37 Phil. 752 [1918]
[7] Docketed as Civil Case No. Q-92-12554

[18] Sarmiento vs. Court of Appeals, 150 SCRA 108 [1995]

[8] Presided Over by Judge Lucas P. Bersamin

[19] Rollo, pp. 56-57, underscoring in original text

[9] Rollo, pp. 36-40
[20] Rollo, pp. 57-58 [29] ART. 828, Civil Code

[21] Sumulong vs. Court of Appeals, 232 SCRA 372 [1994], citing Maddamu [30] ART. 838, Civil Code
vs. Judge of Municipal Court of Manila, 74 Phil. 230 [1943]

[31] Petition, Annex "E", Rollo, p. 44

[22] Sumulong vs. Court of Appeals, supra, citing Co Tiamco vs. Diaz, 75 Phil.
672 [1946]; Valderama Lumber Manufacturer's Co. vs. L.S. Sarmiento Co., 5
SCRA 287 [1962, Pangilinan vs. Aguilar, 43 SCRA 136 [1972] [32] Emphasis supplied

[23] Yu vs. de Lara, 6 SCRA 785 [1962]; Pangilinan vs. Aguilar, 43 SCRA 136 [33] Francisco, The Revised Rules of Court in the Philippines, 1970 Ed., Vol.
[1972], Dakudao vs. Consolacion, 122 SCRA 877 [1983]; Peran vs. Presiding V-B, p. 457, citing Ex-parte Fletcher, 142 So. 30; 39 C.J.S. 86
Judge, Br. II, CFI, Sorsogon, 125 SCRA 78 [1983]; Banco de Oro Savings and
Mortgage Bank vs. Court of Appeals, 182 SCRA 464 [1990]
[34] Francisco, The Revised Rules of Court in the Philippines, 1970 Ed. Vol. V-
B, p. 458, citing 39 C.J.S. 114-115.
[24] Vda. de Catchuela vs. Francisco, 98 SCRA 172 [1980] citing Calubayan
vs. Pascual, 21 SCRA 146, 148 [1967]
[35] Castillo v. Bustamante, 64 Phil. 839 [1937], cited in Moran, Comments
on the Rules of Court, Vol. 3, 1980 ed., p. 570
[25] Odsigue vs. Court of Appeals, 233 SCRA 626 [1994]

[36] Conchita Juachon vs. Felix Manalo, G.R. No. L-42, 77 Phil. 1092,
[26] 229 SCRA 627, 636 [1994] [January 20, 1947 unreported], cited in Moran, Comments on the Rules of
court, 1979 Ed., Volume I, p. 176

[27] Sarmiento vs. Court of Appeals, 250 SCRA 108 [1995] citing Sarona, et al
vs. Villegas, et al, 22 SCRA 1257 [1968] [37] Sec. 3, R.A. No. 7691, amending Sec. 33 of B.P. 129; SEE Wilmon Auto
Supply Corp. vs. Court of Appeals, 208 SCRA 108 [1992].

[28] Peas, Jr. vs. Court of Appeals, 233 SCRA 744 [1994] citing Racaza vs.
Susana Realty, Inc. 18 SCRA. 1172 [1966]. [38] Francisco, The Revised Rules of Court in the Phils., Vol. V-B, 1970 Ed.,
citing 25 Am. Jur. 37
[39] Second Division; SEE footnote 17, supra In re of Dolores Coronel, deceased.

LORENZO PECSON, applicant-appellee,

[40] Emphasis supplied vs.

AGUSTIN CORONEL, ET AL., opponents-appellants.

[41] Vda. de Salazar vs. Court of Appeals, et al., 250 SCRA 305 (Nov. 23,
1995) citing Vda. de Haberes vs. Court of Appeals, 104 SCRA 534 [1981];
Fisher, DeWitt, Perkins and Brady for appellants.
Republic vs. Bagtas, 6 SCRA 242 [1962]; Florendo Jr. vs. Coloma, 129 SCRA
304 [1984]. Ross and Lawrence and Guillermo Lualhati for appellee.

ROMUALDEZ, J.:

Today is Sunday, September 09, 2018 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:
Custom Search

In the name of God, Amen:

Republic of the Philippines

I, Dolores Coronel, resident of Betis, Guagua, Pampanga, Philippine Islands,
SUPREME COURT in the full exercise of my mental faculties, do hereby make my last will and
testament, and revoke all former wills by me executed.
Manila

I direct and order that my body be buried in conformity with my social

EN BANC
standing.

G.R. No. L-20374 October 11, 1923

That having no forced heirs, I will all my properties, both movable and which this document is composed, which are numbered "one" and "two" on
immovable, to my nephew, Lorenzo Pecson, who is married to my niece the upper part of the face thereof.
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. (Sgd.) "MAXIMO VERGARA SOTERO DUMAUAL MARCOS DE
LOS SANTOS

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 MARIANO L. CRISOSTOMO PABLO BARTOLOME
able to discharge his duties as such executor for any reason whatsoever, I MARCOS DE LA CRUZ DAMIAN CRISOSTOMO
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 On the left margin of the two sheets of the will the following signatures also
appear:

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.
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.

VICENTE J. FRANCISCO The opponents are: Eriberto Coronel, Tito Coronel, Julian Gozum, Cirila
"For the testatrix Dolores Coronel 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,
The foregoing document was executed and declared by Dolores Coronel to
Generosa, Maria, and Jose, all minors, Rosario Coronel, Agustin Coronel,
be her last will and testament in our presence, and as the testatrix does not
Filomeno Coronel, Casimiro Coronel, Alejo Coronel, Maria Coronel, Severina
know how to write her name, she requested Vicente J. Francisco to sign her
Coronel, Serapia Coronel, Maria Juana de Ocampo, widow of the deceased
name under her express direction in our presence, at the foot, and on the
Manuel Coronel, Dionisia Coronel, and her husband Pantaleon Gunlao.
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
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 Phil.,
405), decided by this court and invoked by the appellants, refers so far as
pertinent to the point herein at issue, to an attestation clause wherein the
statement that the witnesses signed the will in the presence of each other is
totally absent. In the case at bar, there is the expression "in the presence of
others" whose reasonable interpretation is, as we have said, "in the
presence of the other witnesses." We do not find any party between the
present case and that of Re Estate of Geronima Uy Coque above cited.
Finally, we will take up the question submitted by the opponents as to the
alleged insufficiency of the evidence to show that the attesting witnesses
Damian Crisostomo and Sotero Dumaual were present at the execution of
the will in controversy. Although this point is raised in the first assignment
of error made by the appellants, and not in the second, it is discussed in this
place because it refers to the very fact of attestation. However, we do not
believe it necessary to analyze in detail the evidence of both parties on this
particular point. The evidence leads us to the conclusion that the two
witnesses aforementioned were present at the execution and signing of the
will. Such is also the conclusion of the trial judge who, in this respect, states
the following, in his decision:
As to the question of whether or not the testatrix and witnesses signed the
document Exhibit A in accordance with the provisions of law on the matter,
that is, whether or not the testatrix signed the will, or caused it to be signed,
in the presence of the witnesses, and the latter in turn signed in her
presence and that of each other, the court, after observing the demeanor of
the witnesses for both parties, is of the opinion that those for the petitioner
spoke the truth. It is neither probable nor likely that a man versed in the
law, such as Attorney Francisco, who was present at the execution of the
will in question, and to whose conscientiousness in the matter of
compliance with all the extrinsic formalities of the execution of a will, and to
nothing else, was due the fact that the testatrix had cancelled her former Other Issuances
will (Exhibit B) and had new one (Exhibit A) prepared and executed, should
Jurisprudence
have consented the omission of formality compliance with which would
have required little or no effort; namely, that of seeing to it that the International Legal Resources
testatrix and the attesting witnesses were all present when their respective
signatures were affixed to the will." And the record does not furnish us AUSL Exclusive
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. Today is Sunday, September 09, 2018

The judgment appealed from if affirmed with costs against the appellants. Custom Search
So ordered.

Araullo, C.J., Johnson, Street, Malcolm, Avanceña, Villamor and Johns, JJ., Republic of the Philippines
concur.
SUPREME COURT

Manila

The Lawphil Project - Arellano Law Foundation

EN BANC

G.R. No. 72706 October 27, 1987

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

MELENCIO-HERRERA, J., concurring:

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,
I concur in the result on the basic proposition that preterition in this case
amounting to lack of jurisdiction, committed by the trial court in not
was by mistake or inadvertence.
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
To my mind, an important distinction has to be made as to whether the
entertained, particularly where appeal would not afford speedy and
omission of a forced heir in the will of a testator is by mistake or
adequate relief. (Maninang Court of Appeals, supra).
inadvertence, or voluntary or intentional. If by mistake or inadvertence,
there is true preterirton and total intestacy results. The reason for this is the
"inability to determine how the testator would have distributed his estate if
PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and
none of the heirs had been omitted or forgotten (An Outline of Civil Law,
the questioned decision of respondent Court of Appeals promulgated on
J.B.L. Reyes and R.C. Puno, Vol. III, p. 54).
August 30, 1985 and its Resolution dated October 23, 1985 are hereby
AFFIRMED.

The requisites of preterition are:

SO ORDERED.

1. The heir omitted is a forced heir (in the direct line);

Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz, Feliciano,

Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur.
2. The ommission is by mistake or thru an oversight.

MELENCIO-HERRERA, J., concurring:

3. The omission is complete so that the forced heir received nothing in the
will. (111 Padilla, Civil Code Annotated, 1973 Edition, pp. 224-225)
I concur in the result on the basic proposition that preterition in this case
(Parenthetical addendum supplied).
was by mistake or inadvertence.

On the other hand, if the omission is intentional, the effect would be a

To my mind, an important distinction has to be made as to whether the
defective disinheritance covered by Article 918 of the Civil Code in which
omission of a forced heir in the will of a testator is by mistake or
case the institution of heir is not wholly void but only insofar as it prejudices
inadvertence, or voluntary or intentional. If by mistake or inadvertence,
the legitime of the person disinherited. Stated otherwise. the nullity is
there is true preterirton and total intestacy results. The reason for this is the
partial unlike in true preterition where the nullity is total.
"inability to determine how the testator would have distributed his estate if
none of the heirs had been omitted or forgotten (An Outline of Civil Law,
J.B.L. Reyes and R.C. Puno, Vol. III, p. 54).
Pretention is presumed to be only an involuntary omission; that is, that if
the testator had known of the existence of the compulsory heir at the time
of the execution of the will, he would have instituted such heir. On the
The requisites of preterition are:
other hand, if the testator attempts to disinherit a compulsory heir, the
presumption of the law is that he wants such heir to receive as little as
possible from his estate. (III Tolentino, Civil Code, 1973 Edition, pp. 174-
175). 1. The heir omitted is a forced heir (in the direct line);

In the case at bar, there seems to have been mistake or in advertence in the
omission of the adopted daughter, hence, my concurrence in the result that
total intestacy ensued.
2. The ommission is by mistake or thru an oversight.
3. The omission is complete so that the forced heir received nothing in the
will. (111 Padilla, Civil Code Annotated, 1973 Edition, pp. 224-225)
(Parenthetical addendum supplied).

On the other hand, if the omission is intentional, the effect would be a

defective disinheritance covered by Article 918 of the Civil Code in which
case the institution of heir is not wholly void but only insofar as it prejudices
the legitime of the person disinherited. Stated otherwise. the nullity is
Separate Opinions
partial unlike in true preterition where the nullity is total.
 Other Issuances

Pretention is presumed to be only an involuntary omission; that is, that if Jurisprudence

the testator had known of the existence of the compulsory heir at the time
International Legal Resources
of the execution of the will, he would have instituted such heir. On the
other hand, if the testator attempts to disinherit a compulsory heir, the AUSL Exclusive
presumption of the law is that he wants such heir to receive as little as
possible from his estate. (III Tolentino, Civil Code, 1973 Edition, pp. 174-
175).

In the case at bar, there seems to have been mistake or in advertence in the Today is Sunday, September 09, 2018
omission of the adopted daughter, hence, my concurrence in the result that
total intestacy ensued.
Custom Search

Footnotes

* Penned by Justice Jose A. R. Melo and concurred in by Justices Republic of the Philippines
Milagros A. German and Nathanael P. De Pano, Jr. SUPREME COURT

Manila

The Lawphil Project - Arellano Law Foundation EN BANC

G.R. No. L-47799 June 13, 1941

Constitution Administration of the estate of Agripino Neri y Chavez. ELEUTERIO NERI, ET

Statutes AL., petitioners,

Executive Issuances vs.

Judicial Issuances 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.
Avanceña, C.J., Diaz, Laurel and Horrilleno, JJ., concur.
The Lawphil Project - Arellano Law Foundation
 Petitioners, in their petition for review on certiorari under Rule 45 of the
Rules of Court, seek a reversal of the 29th May 1996 decision of the Court of
Constitution
Appeals, basically affirming that rendered on 30 April 1991 by the Regional
Statutes Trial Court ("RTC") of Quezon City, Branch 23, adjudicating the property
subject matter of the litigation to respondents. The case and the factual
Executive Issuances setting found by the Court of Appeals do not appear to deviate significantly
Judicial Issuances from that made by the trial court.

Other Issuances

Jurisprudence During their lifetime, the spouses Julian C. Viado and Virginia P. Viado
owned several pieces of property, among them a house and lot located at
International Legal Resources 147 Isarog Street, La Loma, Quezon City, covered by Transfer Certificate of
AUSL Exclusive Title No. 42682. Virginia P. Viado died on 20 October 1982. Julian C. Viado
died three years later on 15 November 1985. Surviving them were their
children -- Nilo Viado, Leah Viado Jacobs, and herein petitioners Rebecca
Viado, married to Jose Non, and Delia Viado. Nilo Viado and Leah Viado
Jacobs both died on 22 April 1987. Nilo Viado left behind as his own sole
heirs herein respondents --- his wife Alicia Viado and their two children
Cherri Viado and Fe Fides Viado.
THIRD DIVISION

Petitioners and respondents shared, since 1977, a common residence at the

[G.R. No. 137287. February 15, 2000]
REBECCA VIADO NON, JOSE A. NON and DELIA VIADO, petitioners, vs. THE
HONORABLE COURT OF APPEALS, ALICIA N. VIADO, CHERRI VIADO and FE
FIDES VIADO, respondents. LEX
DECISION
Isarog property. Soon, however, tension would appear to have escalated
between petitioner Rebecca Viado and respondent Alicia Viado after the
former had asked that the property be equally divided between the two
families to make room for the growing children. Respondents, forthwith,
claimed absolute ownership over the entire property and demanded that
petitioners vacate the portion occupied by the latter. On 01 February 1988,
petitioners, asserting co-ownership over the property in question, filed a
case for partition before the Quezon City RTC (Branch 93). Jj sc

Respondents predicated their claim of absolute ownership over the subject

VITUG, J.: property on two documents --- a deed of donation executed by the late
Julian Viado covering his one-half conjugal share of the Isarog property in
favor of Nilo Viado and a deed of extrajudicial settlement in which Julian
Viado, Leah Viado Jacobs (through a power of attorney in favor of Nilo
Viado) and petitioner Rebecca Viado waived in favor of Nilo Viado their
rights and interests over their share of the property inherited from Virginia
The appellate court ruled correctly.
Viado. Both instruments were executed on 26 August 1983 and registered
on 07 January 1988 by virtue of which Transfer Certificate of Title No. 42682
was cancelled and new Transfer Certificate of Title No. 373646 was issued to
the heirs of Nilo Viado. When Virginia P. Viado died intestate in 1982, her part of the conjugal
property, the Isarog property in question included, was transmitted to her
heirs --- her husband Julian and their children Nilo Viado, Rebecca Viado,
Leah Viado and Delia Viado. The inheritance, which vested from the
Petitioners, in their action for partition, attacked the validity of the
moment of death of the decedent,[1] remained under a co-ownership
foregoing instruments, contending that the late Nilo Viado employed
regime[2] among the heirs until partition.[3] Every act intended to put an
forgery and undue influence to coerce Julian Viado to execute the deed of
end to indivision among co-heirs and legatees or devisees would be a
donation. Petitioner Rebecca Viado, in her particular case, averred that her
partition although it would purport to be a sale, an exchange, a
brother Nilo Viado employed fraud to procure her signature to the deed of
compromise, a donation or an extrajudicial settlement.[4]
extrajudicial settlement. She added that the exclusion of her retardate
sister, Delia Viado, in the extrajudicial settlement, resulted in the latter's
preterition that should warrant its annulment. Finally, petitioners
asseverated at the assailed instruments, although executed on 23 August In debunking the continued existence of a co-ownership among the parties
1983, were registered only five years later, on 07 January 1988, when the hereto, respondents rely on the deed of donation and deed of extrajudicial
three parties thereto, namely, Julian Viado, Nilo Viado and Leah Viado settlement which consolidated the title solely to Nilo Viado. Petitioners
Jacobs had already died. Sc jj assail the due execution of the documents on the grounds heretofore
expressed. Sj cj

Assessing the evidence before it, the trial court found for respondents and
adjudged Alicia Viado and her children as being the true owners of the
disputed property.
On appeal, the Court of Appeals affirmed the decision of the trial court with
modification by ordering the remand of the records of the case to the court
a quo for further proceedings to determine the value of the property and
the amount respondents should pay to petitioner Delia Viado for having
been preterited in the deed of extrajudicial settlement.
Petitioners are now before the Supreme Court to seek the reversal of the
decision of the Court of Appeals.
Unfortunately for petitioners, the issues they have raised boil down to the
appreciation of the evidence, a matter that has been resolved by both the
trial court and the appellate court. The Court of Appeals, in sustaining the
court a quo, has found the evidence submitted by petitioners to be utterly
wanting, consisting of, by and large, self-serving testimonies. While
asserting that Nilo Viado employed fraud, forgery and undue influence in
procuring the signatures of the parties to the deeds of donation and of
extrajudicial settlement, petitioners are vague, however, on how and in
what manner those supposed vices occurred. Neither have petitioners
shown proof why Julian Viado should be held incapable of exercising
sufficient judgment in ceding his rights and interest over the property to
Nilo Viado. The asseveration of petitioner Rebecca Viado that she has signed
the deed of extrajudicial settlement on the mistaken belief that the
instrument merely pertained to the administration of the property is too
tenuous to accept. It is also quite difficult to believe that Rebecca Viado, a
teacher by profession, could have misunderstood the tenor of the assailed
document.
[1] See Baritua vs. CA, 183 SCRA 565.

The fact alone that the two deeds were registered five years after the date
of their execution did not adversely affect their validity nor would such [2] There is co-ownership when the title of an undivided thing or right
circumstance alone be indicative of fraud. The registration of the documents belongs to different persons (see Article 484, Civil Code).
was a ministerial act[5] and merely created a constructive notice of its
contents against all third persons.[6] Among the parties, the instruments
remained completely valid and binding. Supreme [3] Partition is the division between two or more persons of real or personal
property which they own as co-partners, co-tenants or tenants in common,
effected by the setting apart of such interests so that they may enjoy and
The exclusion of petitioner Delia Viado, alleged to be a retardate, from the possess it in severalty. (Vilamor vs. CA, 162 SCRA 574.)
deed of extrajudicial settlement verily has had the effect of preterition. This
kind of preterition, however, in the absence of proof of fraud and bad faith,
does not justify a collateral attack on Transfer Certificate of Title No. [4] see Favor vs. CA, 194 SCRA 308.
373646. The relief, as so correctly pointed out by the Court of Appeals,
instead rests on Article 1104 of the Civil Code to the effect that where the
preterition is not attended by bad faith and fraud, the partition shall not be [5] The registrar of deed is not authorized to determine whether or not
rescinded but the preterited heir shall be paid the value of the share fraud was committed in the deed sought to be registered. (In re Consulta of
pertaining to her. Again, the appellate court has thus acted properly in Vicente J. Francisco on behalf of Cabantog, 67 Phil. 222.)
ordering the remand of the case for further proceedings to make the proper
valuation of the Isarog property and ascertainment of the amount due
petitioner Delia Viado.
[6] People vs. Reyes, 175 SCRA 597, 604, citing Legarda and Prieto vs.
Saleeby, 31 Phil. 590; Garcia vs. CA, 95 SCRA 380; Hongkong and Shanghai
Banking Corp. vs. Pauli, et al., 161 SCRA 634.
WHEREFORE, the instant petition is DENIED, and the decision, dated May
29, 1996, in CA-G.R. No. 37272 of the Court of Appeals is AFFIRMED. No
special pronouncement on costs. Court

SO ORDERED.

Today is Sunday, September 09, 2018

Melo, (Chairman), Panganiban, Purisima, and Gonzaga-Reyes, JJ., concur.
Custom Search plaintiff, against Andres Garchitorena, also deceased, represented by his
son, the defendant Mariano Garchitorena.

And as said Mariano Garchitorena held a judgment for P7,872.23 against

Republic of the Philippines
Joaquin Perez Alcantara, husband of the plaintiff, Carmen G. de Perez, the
SUPREME COURT sheriff pursuant to the writ of execution issued in said judgment, levied an
attachment on said amount deposited with La Urbana.
Manila

The plaintiff, alleging that said deposit belongs to the fideicommissary heirs
EN BANC of the decedent Ana Maria Alcantara, secured a preliminary injunction
restraining the execution of said judgment on the sum so attached. The
defendants contend that the plaintiff is the decedent's universal heiress,
G.R. No. L-31703 February 13, 1930 and pray for the dissolution of the injunction.

CARMEN G. DE PEREZ, trustee of the estate of Ana Maria Alcantara, The court below held that said La Urbana deposit belongs to the plaintiff's
plaintiff-appellee, children as fideicommissary heirs of Ana Maria Alcantara, and granted a
vs. final writ of injunction.

MARIANO GARCHITORENA, and JOSE CASIMIRO, Sheriff of the Court of First

Instance of Manila, defendants-appellants. The defendants insist in their contentions, and, in their appeal from the
decision of the trial court, assign the following errors:

L. D. Lockwood and Jose M. Casal for appellants.

Eduardo Gutierrez Repide and Leoncio B. Monzon for appellee. 1. The lower court erred in holding that a trust was created by the will of
Doña Ana Maria Alcantara.

ROMUALDEZ, J.:
2. The lower court erred in concluding and declaring that the amount of
P21,428.58 deposited with La Urbana is the property of the children of the
plaintiff as "herederos fidei-comisarios."
The amount of P21,428.58 is on deposit in the plaintiff's name with the
association known as La Urbana in Manila, as the final payment of the
liquidated credit of Ana Maria Alcantara, deceased, whose heiress is said
3. The lower court erred in making the injunction permanent and
condemning defendant to pay the costs.
The question here raised is confined to the scope and meaning of the
institution of heirs made in the will of the late Ana Maria Alcantara already
admitted to probate, and whose legal force and effect is not in dispute.
The clauses of said will relevant to the points in dispute, between the
parties are the ninth, tenth, and eleventh, quoted below:
Ninth. Being single and without any forced heir, to show my gratitude to my
niece-in-law, Carmen Garchitorena, of age, married to my nephew, Joaquin
Perez Alcantara, and living in this same house with me, I institute her as my
sole and universal heiress to the remainder of my estate after the payment
of my debts and legacies, so that upon my death and after probate of this
will, and after the report of the committee on claims and appraisal has been
rendered and approved, she will receive from my executrix and properties
composing my hereditary estate, that she may enjoy them with God's
blessing and my own.
Tenth. Should my heiress Carmen Garchitorena die, I order that my whole
estate shall pass unimpaired to her surviving children; and should any of
these die, his share shall serve to increase the portions of his surviving
brothers (and sisters) by accretion, in such wise that my estate shall never
pass out of the hands of my heiress or her children in so far as it is legally
possible.
Eleventh. Should my aforesaid heiress, Carmen Garchitorena, die after me
while her children are still in their minority, I order that my estate be
administered by my executrix, Mrs. Josefa Laplana, and in her default, by
Attorney Ramon Salinas and in his default, by his son Ramon Salinas; but the
direction herein given must not be considered as an indication of lack of
confidence in my nephew Joaquin Perez Alcantara, whom I relieve from the
duties of administering my estate, because I recognize that his character is
not adapted to management and administration.
The appellants contend that in these clauses the testatrix has ordered a
simple substitution, while the appellee contends that it is a fideicommissary
substitution.
This will certainly provides for a substitution of heirs, and of the three cases
that might give rise to a simple substitution (art. 774, Civil Code), only the
death of the instituted heiress before the testatrix would in the instant case
give place to such substitution, inasmuch as nothing is said of the waiver of
inheritance, or incapacity to accept it. As a matter of fact, however, clause
XI provides for the administration of the estate in case the heiress instituted
should die after the testatrix and while the substitute heirs are still under
age. And it is evident that, considering the nature of simple substitution by
the heir's death before the testator, and the fact that by clause XI in
connection with clause X, the substitution is ordered where the heiress
instituted dies after the testatrix, this cannot be a case of simple
substitution.
The existence of a substitution in the will is not and cannot be denied, and
since it cannot be a simple substitution in the light of the considerations
above stated, let us now see whether the instants case is a fideicommissary
substitution.
In clause IX, the testatrix institutes the plaintiff herein her sole and universal
heiress, and provides that upon her death (the testatrix's) and after probate
of the will and approval of the report of the committee on claims and
appraisal, said heiress shall receive and enjoy the whole hereditary estate.
Although this clause provides nothing explicit about substitution, it does not
contain anything in conflict with the idea of fideicommissary substitution.
The fact that the plaintiff was instituted the sole and universal heiress does
not prevent her children from receiving, upon her death and in conformity
with the express desire of the testatrix, the latter's hereditary estate, as
provided in the following (above quoted) clauses which cannot be
disregarded if we are to give a correct interpretation of the will. The word
sole does not necessarily exclude the idea of substitute heirs; and taking
these three clauses together, such word means that the plaintiff is the sole
heiress instituted in the first instance.
The disposition contained in clause IX, that said heiress shall receive and
enjoy the estate, is not incompatible with a fideicommissary substitution (it
certainly is incompatible with the idea of simple substitution, where the
heiress instituted does not receive the inheritance). In fact the enjoyment of
the inheritance is in conformity with the idea of fideicommissary
substitution, by virtue of which the heir instituted receives the inheritance
and enjoys it, although at the same time he preserves it in order to pass it
on the second heir. On this point the illustrious Manresa, in his Civil Code
(Vol. 6, pp. 142 and 143, 5th ed.), says:
Or, what amounts to the same thing, the fideicommissary substitution, as
held in the Resolution of June 25, 1895, February 10, 1899, and July 19,
1909, requires three things:
1. A first heir called primarily to the enjoyment of the estate.
2. An obligation clearly imposed upon him to preserve and transmit to a
third person the whole or a part of the estate.
3. A second heir.
To these requisites, the decision of November 18, 1918 adds another,
namely that the fideicommissarius be entitled to the estate from the time
the testator dies, since he is to inherit from the latter and not from the
fiduciary. (Emphasis ours.)
It appears from this quotation that the heir instituted or the fiduciary, as
referred to in articles 783 of the Civil Code, is entitled to enjoy the
inheritance. And it might here be observed, as a timely remark, that the
fideicommissum arising from a fideicommissary substitution, which is of
Roman origin, is not exactly equivalent to, nor may it be confused with, the
English "trust."
It should also be noted that said clause IX vests in the heiress only the right
to enjoy but not the right to dispose of the estate. It says, she may enjoy it,
but does not say she may dispose of it. This is an indication of the usufruct
inherent in fideicommissary substitution.
Clause X expressly provides for the substitution. It is true that it does not say
whether the death of the heiress herein referred to is before or after that of
the testatrix; but from the whole context it appears that in making the
provisions contained in this clause X, the testatrix had in mind a
fideicommissary substitution, since she limits the transmission of her estate
to the children of the heiress by this provision, "in such wise that my estate
shall never pass out of the hands of my heiress or her children in so far as it
is legally possible." Here it clearly appears that the testatrix tried to avoid
the possibility that the substitution might later be legally declared null for
transcending the limits fixed by article 781 of the Civil Code which
prescribed that fideicommissary substitutions shall be valid "provided they
do not go beyond the second degree."
Another clear and outstanding indication of fideicommissary substitution in
clause X is the provision that the whole estate shall pass unimpaired to the
heiress's children, that is to say the heiress is required to preserve the
whole estate, without diminution, in order to pass it on in due time to the
fideicommissary heirs. This provision complies with another of the
requisites of fideicommissary substitution according to our quotation from
Manresa inserted above.
Lastly, clause XI more clearly indicates the idea of fideicommissary
substitution, when a provision is therein made in the event the heiress
should die after the testatrix. That is, said clause anticipates the case where
the instituted heiress should die after the testatrix and after receiving and
enjoying the inheritance.
The foregoing leads us to the conclusion that all the requisites of a
fideicommissary substitution, according to the quotation from Manresa
above inserted, are present in the case of substitution now under
consideration, to wit:
1. At first heir primarily called to the enjoyment of the estate. In this case
the plaintiff was instituted an heiress, called to the enjoyment of the estate,
according to clause IX of the will.
2. An obligation clearly imposed upon the heir to preserve and transmit to a
third person the whole or a part of the estate. Such an obligation is imposed
in clause X which provides that the "whole estate shall pass unimpaired to
her (heiress's) surviving children;" thus, instead of leaving the heiress at
liberty to dispose of the estate by will, or of leaving the law to take its
course in case she dies intestate, said clause not only disposes of the estate
in favor of the heiress instituted, but also provides for the disposition
thereof in case she should die after the testatrix.
3. A second heir. Such are the children of the heiress instituted, who are
referred to as such second heirs both in clause X and in clause XI.
Finally, the requisite added by the decision of November 18, 1918, to wit,
that the fideicommissarius or second heir should be entitled to the estate
from the time of the testator's death, which in the instant case, is, rather
than a requisite, a necessary consequence derived from the nature of the
fideicommissary substitution, in which the second heir does not inherit from
the heir first instituted, but from the testator.
By virtue of this consequence, the inheritance in question does not belong
to the heiress instituted, the plaintiff herein, as her absolute property, but
to her children, from the moment of the death of the testatrix, Ana Maria
Alcantara.
Therefore, said inheritance, of which the amount referred to at the
beginning, which is on deposit with the association known as La Urbana in
the plaintiff's name, is a part, does not belong to her nor can it be subject to
the execution of the judgment against Joaquin Perez, who is not one of the
fideicommissary heirs.
The judgment appealed from is affirmed, with costs against the appellant,
Mariano Garchitorena. So ordered.
Johnson, Malcolm, Villamor, Ostrand, Johns and Villa-Real, JJ., concur.
Street, J., reserves his vote.
The Lawphil Project - Arellano Law Foundation
 This is a petition for review of the decision of the Court of Appeals,[3] dated
December 23, 1993, in CA-G.R. No. CV-35555, which set aside the decision
of Branch 52 of the Regional Trial Court in Bacolod City, and ordered the
Constitution defendants-appellees (including herein petitioner), as heirs of Dr. Jorge
Rabadilla, to reconvey title over Lot No. 1392, together with its fruits and
Statutes interests, to the estate of Aleja Belleza.
Executive Issuances

Judicial Issuances The antecedent facts are as follows:

Other Issuances

Jurisprudence In a Codicil appended to the Last Will and Testament of testatrix Aleja
International Legal Resources Belleza, Dr. Jorge Rabadilla, predecessor-in-interest of the herein petitioner,
Johnny S. Rabadilla, was instituted as a devisee of 511, 855 square meters of
AUSL Exclusive that parcel of land surveyed as Lot No. 1392 of the Bacolod Cadastre. The
said Codicil, which was duly probated and admitted in Special Proceedings
No. 4046 before the then Court of First Instance of Negros Occidental,
contained the following provisions:

THIRD DIVISION "FIRST

[G.R. No. 113725. June 29, 2000] I give, leave and bequeath the following property owned by me to Dr. Jorge
Rabadilla resident of 141 P. Villanueva, Pasay City:

JOHNNY S. RABADILLA,[1] petitioner, vs. COURT OF APPEALS AND MARIA

MARLENA[2] COSCOLUELLA Y BELLEZA VILLACARLOS, respondents. (a) Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of
Title No. RT-4002 (10942), which is registered in my name according to the
records of the Register of Deeds of Negros Occidental.
DECISION

(b) That should Jorge Rabadilla die ahead of me, the aforementioned
PURISIMA, J.: property and the rights which I shall set forth hereinbelow, shall be
inherited and acknowledged by the children and spouse of Jorge Rabadilla.

xxx
FOURTH
(a)....It is also my command, in this my addition (Codicil), that should I die
and Jorge Rabadilla shall have already received the ownership of the said
Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of
Title No. RT-4002 (10942), and also at the time that the lease of Balbinito G.
Guanzon of the said lot shall expire, Jorge Rabadilla shall have the obligation
until he dies, every year to give to Maria Marlina Coscolluela y Belleza,
Seventy (75) (sic) piculs of Export sugar and Twenty Five (25) piculs of
Domestic sugar, until the said Maria Marlina Coscolluela y Belleza dies.
FIFTH
(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392 of
the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002
(10492), shall have the obligation to still give yearly, the sugar as specified in
the Fourth paragraph of his testament, to Maria Marlina Coscolluela y
Belleza on the month of December of each year.
SIXTH
I command, in this my addition (Codicil) that the Lot No. 1392, in the event
that the one to whom I have left and bequeathed, and his heir shall later
sell, lease, mortgage this said Lot, the buyer, lessee, mortgagee, shall have
also the obligation to respect and deliver yearly ONE HUNDRED (100) piculs
of sugar to Maria Marlina Coscolluela y Belleza, on each month of
December, SEVENTY FIVE (75) piculs of Export and TWENTY FIVE (25) piculs
of Domestic, until Maria Marlina shall die, lastly should the buyer, lessee or
the mortgagee of this lot, not have respected my command in this my
addition (Codicil), Maria Marlina Coscolluela y Belleza, shall immediately
seize this Lot No. 1392 from my heir and the latter's heirs, and shall turn it
over to my near desendants, (sic) and the latter shall then have the
obligation to give the ONE HUNDRED (100) piculs of sugar until Maria
Marlina shall die. I further command in this my addition (Codicil) that my
heir and his heirs of this Lot No. 1392, that they will obey and follow that
should they decide to sell, lease, mortgage, they cannot negotiate with
others than my near descendants and my sister."[4]
Pursuant to the same Codicil, Lot No. 1392 was transferred to the deceased,
Dr. Jorge Rabadilla, and Transfer Certificate of Title No. 44498 thereto
issued in his name.
Dr. Jorge Rabadilla died in 1983 and was survived by his wife Rufina and
children Johnny (petitioner), Aurora, Ofelia and Zenaida, all surnamed
Rabadilla.
On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos brought
a complaint, docketed as Civil Case No. 5588, before Branch 52 of the
Regional Trial Court in Bacolod City, against the above-mentioned heirs of
Dr. Jorge Rabadilla, to enforce the provisions of subject Codicil. The
Complaint alleged that the defendant-heirs violated the conditions of the
Codicil, in that:
1. Lot No. 1392 was mortgaged to the Philippine National Bank and the
Republic Planters Bank in disregard of the testatrix's specific instruction to
sell, lease, or mortgage only to the near descendants and sister of the
testatrix.
2. Defendant-heirs failed to comply with their obligation to deliver one
hundred (100) piculs of sugar (75 piculs export sugar and 25 piculs domestic
sugar) to plaintiff Maria Marlena Coscolluela y Belleza from sugar crop years
1985 up to the filing of the complaint as mandated by the Codicil, despite
repeated demands for compliance.
3. The banks failed to comply with the 6th paragraph of the Codicil which
provided that in case of the sale, lease, or mortgage of the property, the
buyer, lessee, or mortgagee shall likewise have the obligation to deliver 100
piculs of sugar per crop year to herein private respondent.
The plaintiff then prayed that judgment be rendered ordering defendant-
heirs to reconvey/return-Lot No. 1392 to the surviving heirs of the late Aleja
Belleza, the cancellation of TCT No. 44498 in the name of the deceased, Dr.
Jorge Rabadilla, and the issuance of a new certificate of title in the names of
the surviving heirs of the late Aleja Belleza.
On February 26, 1990, the defendant-heirs were declared in default but on
March 28, 1990 the Order of Default was lifted, with respect to defendant
Johnny S. Rabadilla, who filed his Answer, accordingly.
During the pre-trial, the parties admitted that:
On November 15, 1998, the plaintiff (private respondent) and a certain Alan
Azurin, son-in-law of the herein petitioner who was lessee of the property
and acting as attorney-in-fact of defendant-heirs, arrived at an amicable
settlement and entered into a Memorandum of Agreement on the
obligation to deliver one hundred piculs of sugar, to the following effect:
"That for crop year 1988-89, the annuity mentioned in Entry No. 49074 of
TCT No. 44489 will be delivered not later than January of 1989, more
specifically, to wit:
75 piculs of 'A' sugar, and 25 piculs of 'B' sugar, or then existing in any of our
names, Mary Rose Rabadilla y Azurin or Alan Azurin, during December of
each sugar crop year, in Azucar Sugar Central; and, this is considered
compliance of the annuity as mentioned, and in the same manner will
compliance of the annuity be in the next succeeding crop years.
That the annuity above stated for crop year 1985-86, 1986-87, and 1987-88,
will be complied in cash equivalent of the number of piculs as mentioned
therein and which is as herein agreed upon, taking into consideration the
composite price of sugar during each sugar crop year, which is in the total
amount of ONE HUNDRED FIVE THOUSAND PESOS (P105,000.00).
That the above-mentioned amount will be paid or delivered on a staggered
cash installment, payable on or before the end of December of every sugar
crop year, to wit:
For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00)
Pesos, payable on or before December of crop year 1988-89;
For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00)
Pesos, payable on or before December of crop year 1989-90;
For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00)
Pesos, payable on or before December of crop year 1990-91; and
For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00)
Pesos, payable on or before December of crop year 1991-92."[5]
However, there was no compliance with the aforesaid Memorandum of
Agreement except for a partial delivery of 50.80 piculs of sugar
corresponding to sugar crop year 1988 -1989.
On July 22, 1991, the Regional Trial Court came out with a decision,
dismissing the complaint and disposing as follows:
"WHEREFORE, in the light of the aforegoing findings, the Court finds that
the action is prematurely filed as no cause of action against the defendants
has as yet arose in favor of plaintiff. While there maybe the non-
performance of the command as mandated exaction from them simply
because they are the children of Jorge Rabadilla, the title holder/owner of
the lot in question, does not warrant the filing of the present complaint. The
remedy at bar must fall. Incidentally, being in the category as creditor of the
left estate, it is opined that plaintiff may initiate the intestate proceedings, if
only to establish the heirs of Jorge Rabadilla and in order to give full
meaning and semblance to her claim under the Codicil.
In the light of the aforegoing findings, the Complaint being prematurely filed
is DISMISSED without prejudice.
SO ORDERED."[6]
On appeal by plaintiff, the First Division of the Court of Appeals reversed the
decision of the trial court; ratiocinating and ordering thus:
"Therefore, the evidence on record having established plaintiff-appellant's
right to receive 100 piculs of sugar annually out of the produce of Lot No.
1392; defendants-appellee's obligation under Aleja Belleza's codicil, as heirs
of the modal heir, Jorge Rabadilla, to deliver such amount of sugar to
plaintiff-appellant; defendants-appellee's admitted non-compliance with
said obligation since 1985; and, the punitive consequences enjoined by both
the codicil and the Civil Code, of seizure of Lot No. 1392 and its reversion to
the estate of Aleja Belleza in case of such non-compliance, this Court deems
it proper to order the reconveyance of title over Lot No. 1392 from the
estates of Jorge Rabadilla to the estate of Aleja Belleza. However, plaintiff-
appellant must institute separate proceedings to re-open Aleja Belleza's
estate, secure the appointment of an administrator, and distribute Lot No.
1392 to Aleja Belleza's legal heirs in order to enforce her right, reserved to
her by the codicil, to receive her legacy of 100 piculs of sugar per year out of
the produce of Lot No. 1392 until she dies.
Accordingly, the decision appealed from is SET ASIDE and another one
entered ordering defendants-appellees, as heirs of Jorge Rabadilla, to
reconvey title over Lot No. 1392, together with its fruits and interests, to the
estate of Aleja Belleza.
SO ORDERED."[7]
Dissatisfied with the aforesaid disposition by the Court of Appeals,
petitioner found his way to this Court via the present petition, contending
that the Court of Appeals erred in ordering the reversion of Lot 1392 to the
estate of the testatrix Aleja Belleza on the basis of paragraph 6 of the
Codicil, and in ruling that the testamentary institution of Dr. Jorge Rabadilla
is a modal institution within the purview of Article 882 of the New Civil
Code.
The petition is not impressed with merit.
 descendants, in relation to their legitimate parents, and the widow or
widower, are compulsory heirs.[11] Thus, the petitioner, his mother and
Petitioner contends that the Court of Appeals erred in resolving the appeal
sisters, as compulsory heirs of the instituted heir, Dr. Jorge Rabadilla,
in accordance with Article 882 of the New Civil Code on modal institutions
succeeded the latter by operation of law, without need of further
and in deviating from the sole issue raised which is the absence or
proceedings, and the successional rights were transmitted to them from the
prematurity of the cause of action. Petitioner maintains that Article 882
moment of death of the decedent, Dr. Jorge Rabadilla.
does not find application as there was no modal institution and the testatrix
intended a mere simple substitution - i.e. the instituted heir, Dr. Jorge
Rabadilla, was to be substituted by the testatrix's "near descendants"
Under Article 776 of the New Civil Code, inheritance includes all the
should the obligation to deliver the fruits to herein private respondent be
property, rights and obligations of a person, not extinguished by his death.
not complied with. And since the testatrix died single and without issue,
Conformably, whatever rights Dr. Jorge Rabadilla had by virtue of subject
there can be no valid substitution and such testamentary provision cannot
Codicil were transmitted to his forced heirs, at the time of his death. And
be given any effect.
since obligations not extinguished by death also form part of the estate of
the decedent; corollarily, the obligations imposed by the Codicil on the
deceased Dr. Jorge Rabadilla, were likewise transmitted to his compulsory
The petitioner theorizes further that there can be no valid substitution for
heirs upon his death.
the reason that the substituted heirs are not definite, as the substituted
heirs are merely referred to as "near descendants" without a definite
identity or reference as to who are the "near descendants" and therefore,
In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge
under Articles 843[8] and 845[9] of the New Civil Code, the substitution
Rabadilla, subject to the condition that the usufruct thereof would be
should be deemed as not written.
delivered to the herein private respondent every year. Upon the death of
Dr. Jorge Rabadilla, his compulsory heirs succeeded to his rights and title
over the said property, and they also assumed his (decedent's) obligation to
The contentions of petitioner are untenable. Contrary to his supposition
deliver the fruits of the lot involved to herein private respondent. Such
that the Court of Appeals deviated from the issue posed before it, which
obligation of the instituted heir reciprocally corresponds to the right of
was the propriety of the dismissal of the complaint on the ground of
private respondent over the usufruct, the fulfillment or performance of
prematurity of cause of action, there was no such deviation. The Court of
which is now being demanded by the latter through the institution of the
Appeals found that the private respondent had a cause of action against the
case at bar. Therefore, private respondent has a cause of action against
petitioner. The disquisition made on modal institution was, precisely, to
petitioner and the trial court erred in dismissing the complaint below.
stress that the private respondent had a legally demandable right against
the petitioner pursuant to subject Codicil; on which issue the Court of
Appeals ruled in accordance with law.
Petitioner also theorizes that Article 882 of the New Civil Code on modal
institutions is not applicable because what the testatrix intended was a
substitution - Dr. Jorge Rabadilla was to be substituted by the testatrix's
It is a general rule under the law on succession that successional rights are
near descendants should there be noncompliance with the obligation to
transmitted from the moment of death of the decedent[10] and compulsory
deliver the piculs of sugar to private respondent.
heirs are called to succeed by operation of law. The legitimate children and
 inherit from the testatrix is not definite. The property will only pass to them
should Dr. Jorge Rabadilla or his heirs not fulfill the obligation to deliver part
Again, the contention is without merit.
of the usufruct to private respondent.

Substitution is the designation by the testator of a person or persons to take

Another important element of a fideicommissary substitution is also missing
the place of the heir or heirs first instituted. Under substitutions in general,
here. Under Article 863, the second heir or the fideicommissary to whom
the testator may either (1) provide for the designation of another heir to
the property is transmitted must not be beyond one degree from the first
whom the property shall pass in case the original heir should die before
heir or the fiduciary. A fideicommissary substitution is therefore, void if the
him/her, renounce the inheritance or be incapacitated to inherit, as in a
first heir is not related by first degree to the second heir.[17] In the case
simple substitution,[12] or (2) leave his/her property to one person with the
under scrutiny, the near descendants are not at all related to the instituted
express charge that it be transmitted subsequently to another or others, as
heir, Dr. Jorge Rabadilla.
in a fideicommissary substitution.[13] The Codicil sued upon contemplates
neither of the two.

The Court of Appeals erred not in ruling that the institution of Dr. Jorge
Rabadilla under subject Codicil is in the nature of a modal institution and
In simple substitutions, the second heir takes the inheritance in default of
therefore, Article 882 of the New Civil Code is the provision of law in point.
the first heir by reason of incapacity, predecease or renunciation.[14] In the
Articles 882 and 883 of the New Civil Code provide:
case under consideration, the provisions of subject Codicil do not provide
that should Dr. Jorge Rabadilla default due to predecease, incapacity or
renunciation, the testatrix's near descendants would substitute him. What
Art. 882. The statement of the object of the institution or the application of
the Codicil provides is that, should Dr. Jorge Rabadilla or his heirs not fulfill
the property left by the testator, or the charge imposed on him, shall not be
the conditions imposed in the Codicil, the property referred to shall be
considered as a condition unless it appears that such was his intention.
seized and turned over to the testatrix's near descendants.

That which has been left in this manner may be claimed at once provided
Neither is there a fideicommissary substitution here and on this point,
that the instituted heir or his heirs give security for compliance with the
petitioner is correct. In a fideicommissary substitution, the first heir is
wishes of the testator and for the return of anything he or they may receive,
strictly mandated to preserve the property and to transmit the same later to
together with its fruits and interests, if he or they should disregard this
the second heir.[15] In the case under consideration, the instituted heir is in
obligation.
fact allowed under the Codicil to alienate the property provided the
negotiation is with the near descendants or the sister of the testatrix. Thus,
a very important element of a fideicommissary substitution is lacking; the
obligation clearly imposing upon the first heir the preservation of the Art. 883. When without the fault of the heir, an institution referred to in the
property and its transmission to the second heir. "Without this obligation to preceding article cannot take effect in the exact manner stated by the
preserve clearly imposed by the testator in his will, there is no testator, it shall be complied with in a manner most analogous to and in
fideicommissary substitution."[16] Also, the near descendants' right to conformity with his wishes.
 Neither is there tenability in the other contention of petitioner that the
private respondent has only a right of usufruct but not the right to seize the
The institution of an heir in the manner prescribed in Article 882 is what is
property itself from the instituted heir because the right to seize was
known in the law of succession as an institucion sub modo or a modal
expressly limited to violations by the buyer, lessee or mortgagee.
institution. In a modal institution, the testator states (1) the object of the
institution, (2) the purpose or application of the property left by the
testator, or (3) the charge imposed by the testator upon the heir.[18] A
In the interpretation of Wills, when an uncertainty arises on the face of the
"mode" imposes an obligation upon the heir or legatee but it does not affect
Will, as to the application of any of its provisions, the testator's intention is
the efficacy of his rights to the succession.[19] On the other hand, in a
to be ascertained from the words of the Will, taking into consideration the
conditional testamentary disposition, the condition must happen or be
circumstances under which it was made.[23] Such construction as will
fulfilled in order for the heir to be entitled to succeed the testator. The
sustain and uphold the Will in all its parts must be adopted.[24]
condition suspends but does not obligate; and the mode obligates but does
not suspend.[20] To some extent, it is similar to a resolutory condition.[21]

Subject Codicil provides that the instituted heir is under obligation to deliver
One Hundred (100) piculs of sugar yearly to Marlena Belleza Coscuella. Such
From the provisions of the Codicil litigated upon, it can be gleaned
obligation is imposed on the instituted heir, Dr. Jorge Rabadilla, his heirs,
unerringly that the testatrix intended that subject property be inherited by
and their buyer, lessee, or mortgagee should they sell, lease, mortgage or
Dr. Jorge Rabadilla. It is likewise clearly worded that the testatrix imposed
otherwise negotiate the property involved. The Codicil further provides that
an obligation on the said instituted heir and his successors-in-interest to
in the event that the obligation to deliver the sugar is not respected,
deliver one hundred piculs of sugar to the herein private respondent,
Marlena Belleza Coscuella shall seize the property and turn it over to the
Marlena Coscolluela Belleza, during the lifetime of the latter. However, the
testatrix's near descendants. The non-performance of the said obligation is
testatrix did not make Dr. Jorge Rabadilla's inheritance and the effectivity of
thus with the sanction of seizure of the property and reversion thereof to
his institution as a devisee, dependent on the performance of the said
the testatrix's near descendants. Since the said obligation is clearly imposed
obligation. It is clear, though, that should the obligation be not complied
by the testatrix, not only on the instituted heir but also on his successors-in-
with, the property shall be turned over to the testatrix's near descendants.
interest, the sanction imposed by the testatrix in case of non-fulfillment of
The manner of institution of Dr. Jorge Rabadilla under subject Codicil is
said obligation should equally apply to the instituted heir and his successors-
evidently modal in nature because it imposes a charge upon the instituted
in-interest.
heir without, however, affecting the efficacy of such institution.

Similarly unsustainable is petitioner's submission that by virtue of the

Then too, since testamentary dispositions are generally acts of liberality, an
amicable settlement, the said obligation imposed by the Codicil has been
obligation imposed upon the heir should not be considered a condition
assumed by the lessee, and whatever obligation petitioner had become the
unless it clearly appears from the Will itself that such was the intention of
obligation of the lessee; that petitioner is deemed to have made a
the testator. In case of doubt, the institution should be considered as modal
substantial and constructive compliance of his obligation through the
and not conditional.[22]
consummated settlement between the lessee and the private respondent,
and having consummated a settlement with the petitioner, the recourse of
the private respondent is the fulfillment of the obligation under the [2] Was spelled interchangeably in Rollo as Marlina.
amicable settlement and not the seizure of subject property.

[3] Penned by Justice Santiago M. Kapunan (Chairman) and concurred in by

Suffice it to state that a Will is a personal, solemn, revocable and free act by Justices Minerva P. Gonzaga-Reyes and Eduardo G. Montenegro, (Members)
which a person disposes of his property, to take effect after his death.[25]
Since the Will expresses the manner in which a person intends how his
properties be disposed, the wishes and desires of the testator must be [4] Annex "C", Rollo, pp. 34-35.
strictly followed. Thus, a Will cannot be the subject of a compromise
agreement which would thereby defeat the very purpose of making a Will.
[5] Rollo, pp. 65-66.

WHEREFORE, the petition is hereby DISMISSED and the decision of the

Court of Appeals, dated December 23, 1993, in CA-G.R. No. CV-35555 [6] RTC Decision, pp. 8-9.
AFFIRMED. No pronouncement as to costs

[7] CA Decision, p. 14.

SO ORDERED.

[8] Art. 843. The testator shall designate the heir by his name and surname,
Melo, J., (Chairman), concur in the separate opinion of Justice Vitug. and when there are two persons having the same names, he shall indicate
some circumstance by which the instituted heir may be known.

Vitug, J., see separate opinion. Even though the testator may have omitted the name of the heir, should he
designate him in such manner that there can be no doubt as to who has
been instituted, the institution shall be valid.
Panganiban, J., join the separate opinion of Justice Vitug.

[9] Art. 845. Every disposition in favor of an unknown person shall be void,
unless by some event or circumstance his identity becomes certain.
Gonzaga-Reyes, J., no part.
However, a disposition in favor of a definite class or group of persons shall
be valid.

[1] Was spelled interchangeably in Rollo as Ravadilla. [10] Article 777, New Civil Code.
[11] Ibid., Article 887.

[23] Article 789, NCC.

[12] Ibid., Article 859.

[24] Tolentino, supra, p. 34.

[13] Ibid., Article 863.

[25] Art. 783, NCC and Tolentino, p. 28-29.

[14] Ibid., Article 859.

[15] Arturo Tolentino, Commentaries and Jurisprudence on the Civil Code,

Volume III, p. 212.
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[16] Ibid., p. 212.

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[17] Ramirez vs. Vda. De Ramos, 111 SCRA 704.

Republic of the Philippines

[18] Tolentino, supra, pp. 241-242.
SUPREME COURT

Manila
[19] Ibid., p. 242.

EN BANC
[20] Ibid.

G.R. No. L-3891 December 19, 1907

[21] Jottings and Jurisprudence in Civil Law, Ruben Balane, p. 249.

ELENA MORENTE, petitioner-appellant,

[22] Tolentino, supra, p. 242.
vs.
GUMERSINDO DE LA SANTA, respondent-appellee.
Agoncillo and Ilustre, for appellant.
Agustin Alvares, for appellee.
WILLARD, J.:
The will of Consuelo Morente contains the following clauses:lawphil.net
1. I hereby order that all real estate which may belong to me shall pass
to my husband, Gumersindo de la Santa.
2. That my said husband shall not leave my brothers after my death,
and that he shall not marry anyone; should my said husband have children
by anyone, he shall not convey any portion of the property left by me,
except the one-third part thereof and the two remaining thirds shall be and
remain for my brother Vicente or his children should he have any.
3. After my death I direct my husband to dwell in the camarin in which
the bakery is located, which is one of the properties belonging to me.
Her husband, Gumersindo de la Santa, married again within four months of
the death of the testatrix. Elena Morente, a sister of the deceased, filed a
petition in the proceeding relating to the probate of the will of Consuelo
Morente pending in the Court of First Instance of the Province of Tayabas in
which she alleged the second marriage of Gumersindo de la Santa and
asked that the legacy to him above-mentioned be annulled. Objection was
made in the court below by the husband to the procedure followed by the
petitioner. The court below, however, held that the proceeding was proper
and from that holding the husband did not appeal. From the judgment of
the court below, the petitioner, Elena Morente, appealed.
In its judgment the court denied the petition. It was said, however, in the
decision, as we understand it, that the husband having married, he had the
right to the use of all the property during his life and that at his death two-
thirds thereof would pass to Vicente, a brother of the testatrix, and one-
third thereof could be disposed of by the husband. The construction given
to the will by the court below is not accepted by the appellant. She claims
that by the mere act of marriage the husband at once lost all rights acquired
by the will. It is neither alleged nor proven that any children have been born
to the husband since the death of the testatrix. lawphil.net
Article 790 of the Civil Code provides that testamentary provisions may be
made conditional and article 793 provides that a prohibition against another
marriage may in certain cases be validly imposed upon the widow or
widower. But the question in this case is, Did the testatrix intend to impose
a condition upon the absolute gift which is contained in the first clauses of
the will? It is to be observed that by the second clause she directs that her
husband shall not leave her sisters. It is provided in the third clause that he
must continue to live in a certain building. It is provided in the second clause
that he shall not marry again. To no one of these orders is attached the
condition that if he fails to comply with them he shall lose the legacy given
to him by the first clause of the will. It is nowhere expressly said that if he
does leave the testatrix's sisters, or does not continue to dwell in the
building mentioned in the will he shall forfeit the property given him in the
first clause; nor is it anywhere expressly said that if he marries again he shall
incur such a loss. But it is expressly provided that if one event does happen
the disposition of the property contained in the first clause of the will shall
be changed. It is said that if he has children by anyone, two-thirds of that
property shall pass to Vicente, the brother of the testatrix.
We are bound to construe the will with reference to all the clauses Constitution
contained therein, and with reference to such surrounding circumstances as
Statutes
duly appear in the case, and after such consideration we can not say that it
was the intention of the testatrix that if her husband married again he Executive Issuances
should forfeit the legacy above mentioned. In other words, there being no
express condition attached to that legacy in reference to the second Judicial Issuances
marriage, we can not say that any condition can be implied from the context Other Issuances
of the will. In the case of Chiong Joc-Soy vs. Jaime Vano (8 Phil. Rep., 119),
we held that the legacy contained in the will therein mentioned was not Jurisprudence
conditional. It is true that case arose under article 797 of the Civil Code, International Legal Resources
which perhaps is not strictly applicable to this case, but we think that it may
be argued from what is said in article 797 that, in order to make a AUSL Exclusive
testamentary provision conditional, such condition must fairly appear from
the language used in the will.

Whether the children mentioned in the second clause of the will are natural
children or legitimate children we do not decide, for no such question is
before us, the contingency mentioned in that part of the clause not having
arisen, and we limit ourselves to saying merely that by the subsequent
marriage of the husband he did not forfeit the legacy given to him by the
first part of the will. That was the only question before the court below. the
judgment of that court, denying the petition, is accordingly affirmed, with
the costs of this instance against the appellant. So ordered.

Arellano, C.J., Torres, Mapa, Johnson, Carson and Tracey, JJ., concur.

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