EN BANC G.R. No.

L-4963 January 29, 1953

MARIA USON, plaintiff-appellee, vs. MARIA DEL ROSARIO, CONCEPCION NEBREDA, CONRADO NEBREDA, DOMINADOR NEBREDA, AND FAUSTINO NEBREDA, Jr., defendants-appellants. Priscilo Evangelista Brigido G. Estrada for appellant. BAUTISTA ANGELO, J.: This is an action for recovery of the ownership and possession of five (5) parcels of land situated in the Municipality of Labrador, Province of Pangasinan, filed by Maria Uson against Maria del Rosario and her four children named Concepcion, Conrado, Dominador, and Faustino, surnamed Nebreda, who are all of minor age, before the Court of First Instance of Pangasinan. Maria Uson was the lawful wife of Faustino Nebreda who upon his death in 1945 left the lands involved in this litigation. Faustino Nebreda left no other heir except his widow Maria Uson. However, plaintiff claims that when Faustino Nebreda died in 1945, his common-law wife Maria del Rosario took possession illegally of said lands thus depriving her of their possession and enjoyment. Defendants in their answer set up as special defense that on February 21, 1931, Maria Uson and her husband, the late Faustino Nebreda, executed a public document whereby they agreed to separate as husband and wife and, in consideration of their separation, Maria Uson was given a parcel of land by way of alimony and in return she renounced her right to inherit any other property that may be left by her husband upon his death (Exhibit 1). After trial, at which both parties presented their respective evidence, the court rendered decision ordering the defendants to restore to the plaintiff the ownership and possession of the lands in dispute without special pronouncement as to costs. Defendants interposed the present appeal. There is no dispute that Maria Uson, plaintiff-appellee, is the lawful wife of Faustino Nebreda, former owner of the five parcels of lands litigated in the present case. There is likewise no dispute that Maria del Rosario, one of the defendants-appellants, was merely a common-law wife of the late Faustino Nebreda with whom she had four illegitimate children, her now co-defendants. It likewise appears that Faustino Nebreda died in 1945 much prior to the effectivity of the new Civil Code. With this background, it is evident that when Faustino Nebreda died in 1945 the five parcels of land he was seized of at the time passed from the moment of his death to his only heir, his widow Maria Uson (Article 657, old Civil Code).As this Court aptly said, "The property belongs to the heirs at the moment of the death of the ancestor as completely as if the ancestor had executed and delivered to them a deed for the same before his death" (Ilustre vs. Alaras Frondosa, 17 Phil., 321). From that moment, therefore, the rights of inheritance of Maria Uson over the lands in question became vested. The claim of the defendants that Maria Uson had relinquished her right over the lands in question because she expressly renounced to inherit any future property that her husband may acquire and leave upon his death in the deed of separation they had entered into on February 21, 1931, cannot be entertained for the simple reason that future inheritance cannot be the subject of a contract nor for appellee.

can it be renounced (1 Manresa, 123, sixth edition; Tolentino on Civil Code, p. 12; Osorio vs. Osorio and Ynchausti Steamship Co., 41 Phil., 531). But defendants contend that, while it is true that the four minor defendants are illegitimate children of the late Faustino Nebreda and under the old Civil Code are not entitled to any successional rights, however, under the new Civil Code which became in force in June, 1950, they are given the status and rights of natural children and are entitled to the successional rights which the law accords to the latter (article 2264 and article 287, new Civil Code), and because these successional rights were declared for the first time in the new code, they shall be given retroactive effect even though the event which gave rise to them may have occurred under the prior legislation (Article 2253, new Civil Code). There is no merit in this claim. Article 2253 above referred to provides indeed that rights which are declared for the first time shall have retroactive effect even though the event which gave rise to them may have occurred under the former legislation, but this is so only when the new rights do not prejudice any vested or acquired right of the same origin. Thus, said article provides that "if a right should be declared for the first time in this Code, it shall be effective at once, even though the act or event which gives rise thereto may have been done or may have occurred under the prior legislation, provided said new right does not prejudice or impair any vested or acquired right, of the same origin." As already stated in the early part of this decision, the right of ownership of Maria Uson over the lands in question became vested in 1945 upon the death of her late husband and this is so because of the imperative provision of the law which commands that the rights to succession are transmitted from the moment of death (Article 657, old Civil Code). The new right recognized by the new Civil Code in favor of the illegitimate children of the deceased cannot, therefore, be asserted to the impairment of the vested right of Maria Uson over the lands in dispute. As regards the claim that Maria Uson, while her deceased husband was lying in state, in a gesture of pity or compassion, agreed to assign the lands in question to the minor children for the reason that they were acquired while the deceased was living with their mother and Maria Uson wanted to assuage somewhat the wrong she has done to them, this much can be said; apart from the fact that this claim is disputed, we are of the opinion that said assignment, if any, partakes of the nature of a donation of real property, inasmuch as it involves no material consideration, and in order that it may be valid it shall be made in a public document and must be accepted either in the same document or in a separate one (Article 633, old Civil Code). Inasmuch as this essential formality has not been followed, it results that the alleged assignment or donation has no valid effect. WHEREFORE, the decision appealed from is affirmed, without costs. Paras, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes, Jugo and Labrador, JJ., concur.

G.R. No. L-4170

January 31, 1952

Intestate of the late AGUSTIN MONTILLA, SR.; PEDRO LITONJUA, a movant-appellant, vs. AGUSTIN B. MONTILLA, JR., administrator-appellee; CLAUDIO MONTILLA, oppositor-appellee. Carlos Hilado and Jose V. Corua for the administrator. Jose M. Estacion for movant. Gaudencio Occeo and Jose Ur. Carbonell for oppositor. PARAS, C.J.: In Civil Case No. 868 of the court of First Instance of Negros Occidental, Pedro L. Litonjua obtained a judgment against Claudio Montilla for the payment of the sum of P4,000 with legal interest, plus costs amounting to P39.00 In due time, a writ of execution was issued, but no property of Claudio Montilla was found which could be levied upon. On June 12, 1950 Pedro L. Litonjua filed in special Proceeding No 32 of the Court of First Instance of Negros Occidental, Intestate Estate of Agustin Montilla, Sr., deceased, a motion praying that the interest, property and participation of Claudio Montilla, one of the heirs of Agustin Montilla, Sr., in the latter's intestate estate be sold and out of the proceed the judgment debt of Claudio Montilla in favor of Pedro L. Litonjua be paid. This motion was opposed by Claudio Montilla and by Agustin Montilla, Jr., administrator of the intestate estate. On August 7, 1950, the Court of First Instance of Negros Occidental issued an order denying the motion. From this order Pedro L. Litonjua appealed. In the case of Ortiga Brothers and Co. vs. Enage and Yap Tico, 18 Phil. 345, it was held that the creditor of the heirs of a deceased person is entitled to collect his claim out of the property which pertains by inheritance to said heirs, only after the debts of the testate or intestate succession have been paid and when the net assets that are divisible among the heirs are known, because the debts of the deceased must first be paid before his heirs can inherit. It was therein also held that a person who is not a creditor of a deceased, testate or intestate, has no right to intervene either in the proceedings brought in connection with the estate or in the settlement of the succession. We quote hereunder pertinent passages of the decision. A person who, having claim against a deceased person which should be considered by the committee does not, after publication of the required notice, exhibit his claim to the committee as provided by law, shall be barred from recovering such demand or from pleading the same as an offset to any action, under the provisions of section 695 of the Code of Civil Procedure, excepting the case referred to in section 701 of the same; with still less reason can one who is not a creditor of the said deceased intervene in the proceedings relative to the latter's intestate estate and to the settlement of his succession (article 1034 of the Civil Code), because such creditor has no right or interest that call for the protection of the law and the courts, except in any remainder which may be found due the heir. It is true that Yap Tico, as the creditor of the widow and heirs of the deceased Ildefonso, is entitled to collect what is due him out of the property left by the latter and which was inherited by such widow and heirs, but it is no less that only after all the debts of the said estate have been paid can it be known what net remainder will be left for division among the heirs, because the debts of the deceased must be paid before his heirs can inherit. (Arts. 659 et

seq. 1026, 1027, and 1032 of the civil Code, and secs. 734 et seq., Code of Civil Code Procedure.) An execution cannot legally be levied upon the property of an intestate succession to pay the debts of the widow and heirs of the deceased, until the credits held against the latter at the time of his death shall have been paid can the remaining property that pertains to the said debtors heirs can be attached (Art. 1034, aforecited, Civil Code.) (pp. 350-251) The foregoing pronouncements are perfectly applicable to the case at bar, because the appellant is not a creditor of the deceased Agustin Montilla, Sr. and he seeks to collect his claim out of the inheritance of Claudio Montilla, an heir, before the net assets of the intestate estate have been determined. Wherefore, the appealed order is affirmed, and it is so ordered with costs against the appellant. Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes, Jugo and Bautista Angelo, JJ., concur.

EN BANC G.R. No. L-44837 November 23, 1938 LEDESMA, plaintiffs-appellees,

SOCORRO LEDESMA and ANA QUITCO vs. CONCHITA MCLACHLIN, ET AL., defendants-appellants. Adriano T. Simeon Bitanga for appellees. de la Cruz

for

appellants.

VILLA-REAL, J.: This case is before us by virtue of an appeal taken by the defendants Conchita McLachlin, Lorenzo Quitco, Jr., Sabina Quitco, Rafael Quitco and Marcela Quitco, from the decision of the Court of First Instance of Occidental Negros, the dispositive part of which reads: For the foregoing considerations, the court renders judgment in this case declaring Ana Quitco Ledesma an acknowledged natural daughter of the deceased Lorenzo M. Quitco, for legal purposes, but absolving the defendants as to the prayer in the first cause of action that the said Ana Quitco Ledesma be declared entitled to share in the properties left by the deceased Eusebio Quitco. As to the second cause of action, the said defendants are ordered to pay to the plaintiff Socorro Ledesma, jointly and severally, only the sum of one thousand five hundred pesos(P1,500), with legal interest thereon from the filing of this complaint until fully paid. No pronouncement is made as to the costs. So ordered. In support of their appeal, the appellants assign the following errors allegedly committed by the trial court in its aforesaid decision: 1. That the trial court erred in holding, that the action for the recovery of the sum of P1,500, representing the last installment of the note Exhibit C has not yet prescribed. 2. That the trial court erred in holding that the property inherited by the defendants from their deceased grandfather by the right of representation is subject to the debts and obligations of their deceased father who died without any property whatsoever.
lawphi1.net

3. That the trial court erred in condemning the defendants to pay jointly and severally the plaintiff Socorro Ledesma the sum of P1,500. The only facts to be considered in the determination of the legal questions raised in this appeal are those set out in the appealed decision, which have been established at the trial, namely: In the year 1916, the plaintiff Socorro Ledesma lived maritally with Lorenzo M. Quitco, while the latter was still single, of which relation, lasting until the year 1921, was born a daughter who is the other plaintiff Ana Quitco Ledesma. In 1921, it seems hat the relation

between Socorro Ledesma and Lorenzo M. Quitco came to an end, but the latter executed a deed (Exhibit A), acknowledging the plaintiff Ana Quitco Ledesma as his natural daughter and on January 21, 1922, he issued in favor of the plaintiff Socorro Ledesma a promissory note (Exhibit C), of the following tenor: P2,000. For value received I promise to pay Miss Socorro Ledesma the sum of two thousand pesos (P2,000). Philippine currency under the following terms: Two hundred and fifty pesos (P250) to be paid on the first day of March 1922; another two hundred and fifty pesos (P250)to be paid on the first day of November 1922; the remaining one thousand and five hundred (P1,500) to be paid two years from the date of the execution of this note. San Enrique, Occ. Negros, P. I., Jan. 21, 1922. Subsequently, Lorenzo M. Quitco married the defendant Conchita McLachlin, with whom he had four children, who are the other defendants. On March 9, 1930, Lorenzo M. Quitco died (Exhibit 5), and, still later, that is, on December 15, 1932, his father Eusebio Quitco also died, and as the latter left real and personal properties upon his death, administration proceedings of said properties were instituted in this court, the said case being known as the "Intestate of the deceased Eusebio Quitco," civil case No. 6153 of this court. Upon the institution of the intestate of the deceased Eusebio Quitco and the appointment of the committee on claims and appraisal, the plaintiff Socorro Ledesma, on August 26, 1935, filed before said committee the aforequoted promissory note for payment, and the commissioners, upon receipt of said promissory note, instead of passing upon it, elevated the same to this court en consulta (Exhibit F), and as the Honorable Jose Lopez Vito, presiding over the First Branch, returned said consulta and refrained from giving his opinion thereon (Exhibit C), the aforesaid commissioners on claims and appraisal, alleging lack of jurisdiction to pass upon the claim, denied he same (Exhibit H). On November 14, 1933 (Exhibit I), the court issued an order of declaration of heirs in the intestate of the deceased Eusebio Quitco, and as Ana Quitco Ledesma was not included among the declared heirs, Socorro Ledesma, as mother of Ana Quitco Ledesma, asked for the reconsideration of said order, a petition which the court denied. From the order denying the said petition no appeal was taken, and in lieu thereof there was filed the complaint which gives rise to this case. The first question to be decided in this appeal, raised in the first assignment of alleged error, is whether or not the action to recover the sum of P1,500, representing the last installment for the payment of the promissory note Exhibit C, has prescribed. According to the promissory note Exhibit C, executed by the deceased Lorenzo M. Quitco, on January 21, 1922, the last installment of P1,500 should be paid two years from the date of the execution of said promissory note, that is, on January 21, 1924. The complaint in the present case was filed on June 26, 1934, that is, more than ten years after he expiration of the said period. The fact that the plaintiff Socorro Ledesma filed her claim, on August 26, 1933, with the committee on claims and appraisal appointed in the intestate of Eusebio Quitco, does not suspend the running of the prescriptive period of the judicial action for the recovery of said debt, because the claim for the unpaid balance of the amount of the promissory note should no have been presented in the intestate of Eusebio Quitco, the said deceased not being the one who executed the same, but in the intestate of Lorenzo M. Quitco, which should have been instituted by the said Socorro Ledesma as provided in section 642 of the Code of Civil Procedure, authorizing a creditor to institute said case through the appointment of an administrator for the purpose of collecting his credit. More than ten years having

thus elapsed from the expiration of the period for the payment of said debt of P1,500, the action for its recovery has prescribed under section 43, No. 1, of the Code of Civil Procedure. The first assignment of alleged error is, therefore, well-founded. As to the second assignment of alleged error, consisting in that the trial court erred in holding that the properties inherited by the defendants from their deceased grandfather by representation are subject to the payment of debts and obligations of their deceased father, who died without leaving any property, while it is true that under the provisions of articles 924 to 927 of the Civil Code, a children presents his father or mother who died before him in the properties of his grandfather or grandmother, this right of representation does not make the said child answerable for the obligations contracted by his deceased father or mother, because, as may be seen from the provisions of the Code of Civil Procedure referring to partition of inheritances, the inheritance is received with the benefit of inventory, that is to say, the heirs only answer with the properties received from their predecessor. The herein defendants, as heirs of Eusebio Quitco, in representation of their father Lorenzo M. Quitco, are not bound to pay the indebtedness of their said father from whom they did not inherit anything. The second assignment of alleged error is also well-founded. Being a mere sequel of the first two assignments of alleged errors, the third assignment of error is also well-founded. For the foregoing considerations, we are of the opinion and so hold: (1) That the filing of a claim before the committee on claims and appraisal, appointed in the intestate of the father, for a monetary obligation contracted by a son who died before him, does not suspend the prescriptive period of the judicial action for the recovery of said indebtedness; (2) that the claim for the payment of an indebtedness contracted by a deceased person cannot be filed for its collection before the committee on claims and appraisal, appointed in the intestate of his father, and the propertiesinherited from the latter by the children of said deceased do not answer for the payment of the indebtedness contracted during the lifetime of said person. Wherefore, the appealed judgment is reversed, and the defendants are absolved from the complaint, with the costs to the appellees. So ordered. Avancea, C.J., Imperial, Diaz, Laurel and Concepcion, JJ., concur.

THIRD DIVISION
G.R. No. 113725 June 29, 2000 JOHNNY S. RABADILLA, 1 petitioner, vs. COURT OF APPEALS AND MARIA MARLENA 2 COSCOLUELLA Y BELLEZA VILLACARLOS, respondents.

PURISIMA, J.: This is a petition for review of the decision of the Court of Appeals, 3 dated December 23, 1993, in CA-G.R. No. CV35555, which set aside the decision of Branch 52 of the Regional Trial Court in Bacolod City, and ordered the defendants-appellees (including herein petitioner), as heirs of Dr. Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its fruits and interests, to the estate of Aleja Belleza.
1wphi1.nt

The antecedent facts are as follows: In a Codicil appended to the Last Will and Testament of testatrix Aleja Belleza, Dr. Jorge Rabadilla, predecessor-ininterest of the herein petitioner, Johnny S. Rabadilla, was instituted as a devisee of 511, 855 square meters of 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: FIRST I give, leave and bequeath the following property owned by me to Dr. Jorge Rabadilla resident of 141 P. Villanueva, Pasay City: (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. (b) That should Jorge Rabadilla die ahead of me, the aforementioned property and the rights which I shall set forth hereinbelow, shall be inherited and acknowledged by the children and spouse of Jorge Rabadilla. xxx xxx 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 an 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. Petitioner contends that the Court of Appeals erred in resolving the appeal in accordance with Article 882 of the New Civil Code on modal institutions and in deviating from the sole issue raised which is the absence or prematurity of the cause of action. Petitioner maintains that Article 882 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" should the obligation to deliver the fruits to herein private respondent be not complied with. And since the testatrix died single and without issue, there can be no valid substitution and such testamentary provision cannot be given any effect. The petitioner theorizes further that there can be no valid substitution for 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, under Articles 843 8 and 845 9 of the New Civil Code, the substitution should be deemed as not written. The contentions of petitioner are untenable. Contrary to his supposition that the Court of Appeals deviated from the issue posed before it, which was the propriety of the dismissal of the complaint on the ground of prematurity of cause of action, there was no such deviation. The Court of Appeals found that the private respondent had a cause of action against the petitioner. The disquisition made on modal institution was, precisely, to 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. It is a general rule under the law on succession that successional rights are transmitted from the moment of death of the decedent 10 and compulsory heirs are called to succeed by operation of law. The legitimate children and descendants, in relation to their legitimate parents, and the widow or widower, are compulsory heirs. 11 Thus, the petitioner, his mother and sisters, as compulsory heirs of the instituted heir, Dr. Jorge Rabadilla, succeeded the later by operation of law, without need of further proceedings, and the successional rights were transmitted to them from the moment of death of the decedent, Dr. Jorge Rabadilla. Under Article 776 of the New Civil Code, inheritance includes all the property, rights and obligations of a person, not extinguished by his death. Conformably, whatever rights Dr. Jorge Rabadilla had by virtue of subject Codicil were transmitted to his forced heirs, at the time of his death. And 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 heirs upon his death.

In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge Rabadilla, subject to the condition that the usufruct thereof would be 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 deliver the fruits of the lot involved to herein private respondent. Such obligation of the instituted heir reciprocally corresponds to the right of private respondent over the usufruct, the fulfillment or performance of which is now being demanded by the latter through the institution of the case at bar. Therefore, private respondent has a cause of action against petitioner and the trial court erred in dismissing the complaint below. 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 near descendants should there be non-compliance with the obligation to deliver the piculs of sugar to private respondent. Again, the contention is without merit. Substitution is the designation by the testator of a person or persons to take the place of the heir or heirs first instituted. Under substitutions in general, the testator may either (1) provide for the designation of another heir to whom the property shall pass in case the original heir should die before him/her, renounce the inheritance or be incapacitated to inherit, as in a simple substitution, 12 or (2) leave his/her property to one person with the express charge that it be transmitted subsequently to another or others, as in a fideicommissary substitution. 13 The Codicil sued upon contemplates neither of the two. In simple substitutions, the second heir takes the inheritance in default of the first heir by reason of incapacity, predecease or renunciation. 14 In the 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 the Codicil provides is that, should Dr. Jorge Rabadilla or his heirs not fulfill the conditions imposed in the Codicil, the property referred to shall be seized and turned over to the testatrix's near descendants. Neither is there a fideicommissary substitution here and on this point, petitioner is correct. In a fideicommissary substitution, the first heir is strictly mandated to preserve the property and to transmit the same later to the second heir.15 In the case under consideration, the instituted heir is in 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 property and its transmission to the second heir. "Without this obligation to preserve clearly imposed by the testator in his will, there is no fideicommissary substitution." 16 Also, the near descendants' right to 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 of the usufruct to private respondent. Another important element of a fideicommissary substitution is also missing here. Under Article 863, the second heir or the fideicommissary to whom the property is transmitted must not be beyond one degree from the first heir or the fiduciary. A fideicommissary substitution is therefore, void if the first heir is not related by first degree to the second heir.17 In the case under scrutiny, the near descendants are not at all related to the instituted heir, Dr. Jorge Rabadilla. 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 therefore, Article 882 of the New Civil Code is the provision of law in point. Articles 882 and 883 of the New Civil Code provide: Art. 882. The statement of the object of the institution or the application of the property left by the testator, or the charge imposed on him, shall not be considered as a condition unless it appears that such was his intention. That which has been left in this manner may be claimed at once provided that the instituted heir or his heirs give security for compliance with the wishes of the testator and for the return of anything he or they may receive, together with its fruits and interests, if he or they should disregard this obligation. Art. 883. When without the fault of the heir, an institution referred to in the preceding article cannot take effect in the exact manner stated by the testator, it shall he complied with in a manner most analogous to and in conformity with his wishes.

The institution of an heir in the manner prescribed in Article 882 is what is known in the law of succession as aninstitucion sub modo or a modal 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. 18A "mode" imposes an obligation upon the heir or legatee but it does not affect the efficacy of his rights to the succession.19 On the other hand, in a conditional testamentary disposition, the condition must happen or be fulfilled in order for the heir to be entitled to succeed the testator. The 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 From the provisions of the Codicil litigated upon, it can be gleaned unerringly that the testatrix intended that subject property be inherited by Dr. Jorge Rabadilla. It is likewise clearly worded that the testatrix imposed an obligation on the said instituted heir and his successors-in-interest to deliver one hundred piculs of sugar to the herein private respondent, Marlena Coscolluela Belleza, during the lifetime of the latter. However, the testatrix did not make Dr. Jorge Rabadilla's inheritance and the effectivity of his institution as a devisee, dependent on the performance of the said obligation. It is clear, though, that should the obligation be not complied with, the property shall be turned over to the testatrix's near descendants. The manner of institution of Dr. Jorge Rabadilla under subject Codicil is evidently modal in nature because it imposes a charge upon the instituted heir without, however, affecting the efficacy of such institution. Then too, since testamentary dispositions are generally acts of liberality, an obligation imposed upon the heir should not be considered a condition unless it clearly appears from the Will itself that such was the intention of the testator. In case of doubt, the institution should be considered as modal and not conditional. 22 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 property itself from the instituted heir because the right to seize was expressly limited to violations by the buyer, lessee or mortgagee. In the interpretation of Wills, when an uncertainty arises on the face of the Will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the Will, taking into consideration the circumstances under which it was made. 23 Such construction as will sustain and uphold the Will in all its parts must be adopted. 24 Subject Codicil provides that the instituted heir is under obligation to deliver One Hundred (100) piculs of sugar yearly to Marlena Belleza Coscuella. Such obligations is imposed on the instituted heir, Dr. Jorge Rabadilla, his heirs, and their buyer, lessee, or mortgagee should they sell, lease, mortgage or otherwise negotiate the property involved. The Codicil further provides that in the event that the obligation to deliver the sugar is not respected, Marlena Belleza Coscuella shall seize the property and turn it over to the testatrix's near descendants. The non-performance of the said obligation is thus with the sanction of seizure of the property and reversion thereof to the testatrix's near descendants. Since the said obligation is clearly imposed by the testatrix, not only on the instituted heir but also on his successors-in-interest, the sanction imposed by the testatrix in case of non-fulfillment of said obligation should equally apply to the instituted heir and his successors-in-interest. Similarly unsustainable is petitioner's submission that by virtue of the amicable settlement, the said obligation imposed by the Codicil has been assumed by the lessee, and whatever obligation petitioner had become the obligation of the lessee; that petitioner is deemed to have made a substantial and constructive compliance of his obligation through the 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 amicable settlement and not the seizure of subject property. Suffice it to state that a Will is a personal, solemn, revocable and free act by 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 strictly followed. Thus, a Will cannot be the subject of a compromise agreement which would thereby defeat the very purpose of making a Will. 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 AFFIRMED. No pronouncement as to costs. SO ORDERED.

THIRD DIVISION G.R. No. 103577 October 7, 1996 ROMULO A. CORONEL, ALARICO A. CORONEL, ANNETTE A. CORONEL, ANNABELLE C. GONZALES (for herself and on behalf of Florida C. Tupper, as attorney-in-fact), CIELITO A. CORONEL, FLORAIDA A. ALMONTE, and CATALINA BALAIS MABANAG, petitioners, vs. THE COURT OF APPEALS, CONCEPCION D. ALCARAZ, and RAMONA PATRICIA ALCARAZ, assisted by GLORIA F. NOEL as attorney-in-fact, respondents.

MELO, J.:p The petition before us has its roots in a complaint for specific performance to compel herein petitioners (except the last named, Catalina Balais Mabanag) to consummate the sale of a parcel of land with its improvements located along Roosevelt Avenue in Quezon City entered into by the parties sometime in January 1985 for the price of P1,240,000.00. The undisputed facts of the case were summarized by respondent court in this wise: On January 19, 1985, defendants-appellants Romulo Coronel, et al. (hereinafter referred to as Coronels) executed a document entitled "Receipt of Down Payment" (Exh. "A") in favor of plaintiff Ramona Patricia Alcaraz (hereinafter referred to as Ramona) which is reproduced hereunder: RECEIPT OF DOWN PAYMENT P1,240,000.00 Total amount 50,000 Down payment P1,190,000.00 Balance Received from Miss Ramona Patricia Alcaraz of 146 Timog, Quezon City, the sum of Fifty Thousand Pesos purchase price of our inherited house and lot, covered by TCT No. 119627 of the Registry of Deeds of Quezon City, in the total amount of P1,240,000.00. We bind ourselves to effect the transfer in our names from our deceased father, Constancio P. Coronel, the transfer certificate of title immediately upon receipt of the down payment above-stated. On our presentation of the TCT already in or name, We will immediately execute the deed of absolute sale of said property and Miss Ramona Patricia Alcaraz shall immediately pay the balance of the P1,190,000.00. Clearly, the conditions appurtenant to the sale are the following:

1. Ramona will make a down payment of Fifty Thousand (P50,000.00) Pesos upon execution of the document aforestated; 2. The Coronels will cause the transfer in their names of the title of the property registered in the name of their deceased father upon receipt of the Fifty Thousand (P50,000.00) Pesos down payment; 3. Upon the transfer in their names of the subject property, the Coronels will execute the deed of absolute sale in favor of Ramona and the latter will pay the former the whole balance of One Million One Hundred Ninety Thousand (P1,190,000.00) Pesos. On the same date (January 15, 1985), plaintiff-appellee Concepcion D. Alcaraz (hereinafter referred to as Concepcion), mother of Ramona, paid the down payment of Fifty Thousand (P50,000.00) Pesos (Exh. "B", Exh. "2"). On February 6, 1985, the property originally registered in the name of the Coronels' father was transferred in their names under TCT No. 327043 (Exh. "D"; Exh. "4") On February 18, 1985, the Coronels sold the property covered by TCT No. 327043 to intervenor-appellant Catalina B. Mabanag (hereinafter referred to as Catalina) for One Million Five Hundred Eighty Thousand (P1,580,000.00) Pesos after the latter has paid Three Hundred Thousand (P300,000.00) Pesos (Exhs. "F-3"; Exh. "6-C") For this reason, Coronels canceled and rescinded the contract (Exh. "A") with Ramona by depositing the down payment paid by Concepcion in the bank in trust for Ramona Patricia Alcaraz. On February 22, 1985, Concepcion, et al., filed a complaint for specific performance against the Coronels and caused the annotation of a notice of lis pendens at the back of TCT No. 327403 (Exh. "E"; Exh. "5"). On April 2, 1985, Catalina caused the annotation of a notice of adverse claim covering the same property with the Registry of Deeds of Quezon City (Exh. "F"; Exh. "6"). On April 25, 1985, the Coronels executed a Deed of Absolute Sale over the subject property in favor of Catalina (Exh. "G"; Exh. "7"). On June 5, 1985, a new title over the subject property was issued in the name of Catalina under TCT No. 351582 (Exh. "H"; Exh. "8"). (Rollo, pp. 134-136) In the course of the proceedings before the trial court (Branch 83, RTC, Quezon City) the parties agreed to submit the case for decision solely on the basis of documentary exhibits. Thus, plaintiffs therein (now private respondents) proffered their documentary evidence accordingly marked as Exhibits "A" through "J", inclusive of their corresponding submarkings. Adopting these same exhibits as their own, then defendants (now petitioners)

accordingly offered and marked them as Exhibits "1" through "10", likewise inclusive of their corresponding submarkings. Upon motion of the parties, the trial court gave them thirty (30) days within which to simultaneously submit their respective memoranda, and an additional 15 days within which to submit their corresponding comment or reply thereof, after which, the case would be deemed submitted for resolution. On April 14, 1988, the case was submitted for resolution before Judge Reynaldo Roura, who was then temporarily detailed to preside over Branch 82 of the RTC of Quezon City. On March 1, 1989, judgment was handed down by Judge Roura from his regular bench at Macabebe, Pampanga for the Quezon City branch, disposing as follows: WHEREFORE, judgment for specific performance is hereby rendered ordering defendant to execute in favor of plaintiffs a deed of absolute sale covering that parcel of land embraced in and covered by Transfer Certificate of Title No. 327403 (now TCT No. 331582) of the Registry of Deeds for Quezon City, together with all the improvements existing thereon free from all liens and encumbrances, and once accomplished, to immediately deliver the said document of sale to plaintiffs and upon receipt thereof, the said document of sale to plaintiffs and upon receipt thereof, the plaintiffs are ordered to pay defendants the whole balance of the purchase price amounting to P1,190,000.00 in cash. Transfer Certificate of Title No. 331582 of the Registry of Deeds for Quezon City in the name of intervenor is hereby canceled and declared to be without force and effect. Defendants and intervenor and all other persons claiming under them are hereby ordered to vacate the subject property and deliver possession thereof to plaintiffs. Plaintiffs' claim for damages and attorney's fees, as well as the counterclaims of defendants and intervenors are hereby dismissed. No pronouncement as to costs. So Ordered. Macabebe, Pampanga for Quezon City, March 1, 1989. (Rollo, p. 106) A motion for reconsideration was filed by petitioner before the new presiding judge of the Quezon City RTC but the same was denied by Judge Estrella T. Estrada, thusly: The prayer contained in the instant motion, i.e., to annul the decision and to render anew decision by the undersigned Presiding Judge should be denied for the following reasons: (1) The instant case became submitted for decision as of April 14, 1988 when the parties terminated the presentation of their respective documentary evidence and when the Presiding Judge at that time was Judge Reynaldo Roura. The fact that they were allowed to file memoranda at some future date did not change the fact that the hearing of the case was terminated before Judge Roura and therefore the same should be submitted to him for decision; (2) When the defendants and intervenor did not object to the authority of Judge Reynaldo Roura to decide the case prior to the rendition of the decision, when they met for the first time before the undersigned Presiding Judge at the hearing of a pending incident in Civil Case No. Q-46145 on November 11, 1988, they were deemed to have

acquiesced thereto and they are now estopped from questioning said authority of Judge Roura after they received the decision in question which happens to be adverse to them; (3) While it is true that Judge Reynaldo Roura was merely a Judge-on-detail at this Branch of the Court, he was in all respects the Presiding Judge with full authority to act on any pending incident submitted before this Court during his incumbency. When he returned to his Official Station at Macabebe, Pampanga, he did not lose his authority to decide or resolve such cases submitted to him for decision or resolution because he continued as Judge of the Regional Trial Court and is of co-equal rank with the undersigned Presiding Judge. The standing rule and supported by jurisprudence is that a Judge to whom a case is submitted for decision has the authority to decide the case notwithstanding his transfer to another branch or region of the same court (Sec. 9, Rule 135, Rule of Court). Coming now to the twin prayer for reconsideration of the Decision dated March 1, 1989 rendered in the instant case, resolution of which now pertains to the undersigned Presiding Judge, after a meticulous examination of the documentary evidence presented by the parties, she is convinced that the Decision of March 1, 1989 is supported by evidence and, therefore, should not be disturbed. IN VIEW OF THE FOREGOING, the "Motion for Reconsideration and/or to Annul Decision and Render Anew Decision by the Incumbent Presiding Judge" dated March 20, 1989 is hereby DENIED. SO ORDERED. Quezon City, Philippines, July 12, 1989. (Rollo, pp. 108-109) Petitioners thereupon interposed an appeal, but on December 16, 1991, the Court of Appeals (Buena, Gonzaga-Reyes, Abad Santos (P), JJ.) rendered its decision fully agreeing with the trial court. Hence, the instant petition which was filed on March 5, 1992. The last pleading, private respondents' Reply Memorandum, was filed on September 15, 1993. The case was, however, re-raffled to undersigned ponente only on August 28, 1996, due to the voluntary inhibition of the Justice to whom the case was last assigned. While we deem it necessary to introduce certain refinements in the disquisition of respondent court in the affirmance of the trial court's decision, we definitely find the instant petition bereft of merit. The heart of the controversy which is the ultimate key in the resolution of the other issues in the case at bar is the precise determination of the legal significance of the document entitled "Receipt of Down Payment" which was offered in evidence by both parties. There is no dispute as to the fact that said document embodied the binding contract between Ramona Patricia Alcaraz on the one hand, and the heirs of Constancio P. Coronel on the other, pertaining to a particular house and lot covered by TCT No. 119627, as defined in Article 1305 of the Civil Code of the Philippines which reads as follows:

Art. 1305. A contract is a meeting of minds between two persons whereby one binds himself, with respect to the other, to give something or to render some service. While, it is the position of private respondents that the "Receipt of Down Payment" embodied a perfected contract of sale, which perforce, they seek to enforce by means of an action for specific performance, petitioners on their part insist that what the document signified was a mere executory contract to sell, subject to certain suspensive conditions, and because of the absence of Ramona P. Alcaraz, who left for the United States of America, said contract could not possibly ripen into a contract absolute sale. Plainly, such variance in the contending parties' contentions is brought about by the way each interprets the terms and/or conditions set forth in said private instrument. Withal, based on whatever relevant and admissible evidence may be available on record, this, Court, as were the courts below, is now called upon to adjudge what the real intent of the parties was at the time the said document was executed. The Civil Code defines a contract of sale, thus: Art. 1458. By the contract of sale one of the contracting parties obligates himself to transfer the ownership of and to deliver a determinate thing, and the other to pay therefor a price certain in money or its equivalent. Sale, by its very nature, is a consensual contract because it is perfected by mere consent. The essential elements of a contract of sale are the following: a) Consent or meeting of the minds, that is, consent to transfer ownership in exchange for the price; b) Determinate subject matter; and c) Price certain in money or its equivalent. Under this definition, a Contract to Sell may not be considered as a Contract of Sale because the first essential element is lacking. In a contract to sell, the prospective seller explicity reserves the transfer of title to the prospective buyer, meaning, the prospective seller does not as yet agree or consent to transfer ownership of the property subject of the contract to sell until the happening of an event, which for present purposes we shall take as the full payment of the purchase price. What the seller agrees or obliges himself to do is to fulfill is promise to sell the subject property when the entire amount of the purchase price is delivered to him. In other words the full payment of the purchase price partakes of a suspensive condition, the non-fulfillment of which prevents the obligation to sell from arising and thus, ownership is retained by the prospective seller without further remedies by the prospective buyer. In Roque vs. Lapuz (96 SCRA 741 [1980]), this Court had occasion to rule: Hence, We hold that the contract between the petitioner and the respondent was a contract to sell where the ownership or title is retained by the seller and is not to pass until the full payment of the price, such payment being a positive suspensive condition and failure of which is not a breach, casual or

serious, but simply an event that prevented the obligation of the vendor to convey title from acquiring binding force. Stated positively, upon the fulfillment of the suspensive condition which is the full payment of the purchase price, the prospective seller's obligation to sell the subject property by entering into a contract of sale with the prospective buyer becomes demandable as provided in Article 1479 of the Civil Code which states: Art. 1479. A promise to buy and sell a determinate thing for a price certain is reciprocally demandable. An accepted unilateral promise to buy or to sell a determinate thing for a price certain is binding upon the promissor if the promise is supported by a consideration distinct from the price. A contract to sell may thus be defined as a bilateral contract whereby the prospective seller, while expressly reserving the ownership of the subject property despite delivery thereof to the prospective buyer, binds himself to sell the said property exclusively to the prospective buyer upon fulfillment of the condition agreed upon, that is, full payment of the purchase price. A contract to sell as defined hereinabove, may not even be considered as a conditional contract of sale where the seller may likewise reserve title to the property subject of the sale until the fulfillment of a suspensive condition, because in a conditional contract of sale, the first element of consent is present, although it is conditioned upon the happening of a contingent event which may or may not occur. If the suspensive condition is not fulfilled, the perfection of the contract of sale is completely abated (cf. Homesite and housing Corp. vs. Court of Appeals, 133 SCRA 777 [1984]). However, if the suspensive condition is fulfilled, the contract of sale is thereby perfected, such that if there had already been previous delivery of the property subject of the sale to the buyer, ownership thereto automatically transfers to the buyer by operation of law without any further act having to be performed by the seller. In a contract to sell, upon the fulfillment of the suspensive condition which is the full payment of the purchase price, ownership will not automatically transfer to the buyer although the property may have been previously delivered to him. The prospective seller still has to convey title to the prospective buyer by entering into a contract of absolute sale. It is essential to distinguish between a contract to sell and a conditional contract of sale specially in cases where the subject property is sold by the owner not to the party the seller contracted with, but to a third person, as in the case at bench. In a contract to sell, there being no previous sale of the property, a third person buying such property despite the fulfillment of the suspensive condition such as the full payment of the purchase price, for instance, cannot be deemed a buyer in bad faith and the prospective buyer cannot seek the relief of reconveyance of the property. There is no double sale in such case. Title to the property will transfer to the buyer after registration because there is no defect in the ownerseller's title per se, but the latter, of course, may be used for damages by the intending buyer. In a conditional contract of sale, however, upon the fulfillment of the suspensive condition, the sale becomes absolute and this will definitely affect the seller's title thereto. In fact, if there had been previous delivery of the subject property, the seller's ownership or title to the

property is automatically transferred to the buyer such that, the seller will no longer have any title to transfer to any third person. Applying Article 1544 of the Civil Code, such second buyer of the property who may have had actual or constructive knowledge of such defect in the seller's title, or at least was charged with the obligation to discover such defect, cannot be a registrant in good faith. Such second buyer cannot defeat the first buyer's title. In case a title is issued to the second buyer, the first buyer may seek reconveyance of the property subject of the sale. With the above postulates as guidelines, we now proceed to the task of deciphering the real nature of the contract entered into by petitioners and private respondents. It is a canon in the interpretation of contracts that the words used therein should be given their natural and ordinary meaning unless a technical meaning was intended (Tan vs. Court of Appeals, 212 SCRA 586 [1992]). Thus, when petitioners declared in the said "Receipt of Down Payment" that they Received from Miss Ramona Patricia Alcaraz of 146 Timog, Quezon City, the sum of Fifty Thousand Pesos purchase price of our inherited house and lot, covered by TCT No. 1199627 of the Registry of Deeds of Quezon City, in the total amount of P1,240,000.00. without any reservation of title until full payment of the entire purchase price, the natural and ordinary idea conveyed is that they sold their property. When the "Receipt of Down Payment" is considered in its entirety, it becomes more manifest that there was a clear intent on the part of petitioners to transfer title to the buyer, but since the transfer certificate of title was still in the name of petitioner's father, they could not fully effect such transfer although the buyer was then willing and able to immediately pay the purchase price. Therefore, petitioners-sellers undertook upon receipt of the down payment from private respondent Ramona P. Alcaraz, to cause the issuance of a new certificate of title in their names from that of their father, after which, they promised to present said title, now in their names, to the latter and to execute the deed of absolute sale whereupon, the latter shall, in turn, pay the entire balance of the purchase price. The agreement could not have been a contract to sell because the sellers herein made no express reservation of ownership or title to the subject parcel of land. Furthermore, the circumstance which prevented the parties from entering into an absolute contract of sale pertained to the sellers themselves (the certificate of title was not in their names) and not the full payment of the purchase price. Under the established facts and circumstances of the case, the Court may safely presume that, had the certificate of title been in the names of petitioners-sellers at that time, there would have been no reason why an absolute contract of sale could not have been executed and consummated right there and then. Moreover, unlike in a contract to sell, petitioners in the case at bar did not merely promise to sell the properly to private respondent upon the fulfillment of the suspensive condition. On the contrary, having already agreed to sell the subject property, they undertook to have the certificate of title changed to their names and immediately thereafter, to execute the written deed of absolute sale. Thus, the parties did not merely enter into a contract to sell where the sellers, after compliance by the buyer with certain terms and conditions, promised to sell the property to the latter. What may be perceived from the respective undertakings of the parties to the

contract is that petitioners had already agreed to sell the house and lot they inherited from their father, completely willing to transfer full ownership of the subject house and lot to the buyer if the documents were then in order. It just happened, however, that the transfer certificate of title was then still in the name of their father. It was more expedient to first effect the change in the certificate of title so as to bear their names. That is why they undertook to cause the issuance of a new transfer of the certificate of title in their names upon receipt of the down payment in the amount of P50,000.00. As soon as the new certificate of title is issued in their names, petitioners were committed to immediately execute the deed of absolute sale. Only then will the obligation of the buyer to pay the remainder of the purchase price arise. There is no doubt that unlike in a contract to sell which is most commonly entered into so as to protect the seller against a buyer who intends to buy the property in installment by withholding ownership over the property until the buyer effects full payment therefor, in the contract entered into in the case at bar, the sellers were the one who were unable to enter into a contract of absolute sale by reason of the fact that the certificate of title to the property was still in the name of their father. It was the sellers in this case who, as it were, had the impediment which prevented, so to speak, the execution of an contract of absolute sale. What is clearly established by the plain language of the subject document is that when the said "Receipt of Down Payment" was prepared and signed by petitioners Romeo A. Coronel, et al., the parties had agreed to a conditional contract of sale, consummation of which is subject only to the successful transfer of the certificate of title from the name of petitioners' father, Constancio P. Coronel, to their names. The Court significantly notes this suspensive condition was, in fact, fulfilled on February 6, 1985 (Exh. "D"; Exh. "4"). Thus, on said date, the conditional contract of sale between petitioners and private respondent Ramona P. Alcaraz became obligatory, the only act required for the consummation thereof being the delivery of the property by means of the execution of the deed of absolute sale in a public instrument, which petitioners unequivocally committed themselves to do as evidenced by the "Receipt of Down Payment." Article 1475, in correlation with Article 1181, both of the Civil Code, plainly applies to the case at bench. Thus, Art. 1475. The contract of sale is perfected at the moment there is a meeting of minds upon the thing which is the object of the contract and upon the price. From the moment, the parties may reciprocally demand performance, subject to the provisions of the law governing the form of contracts. Art. 1181. In conditional obligations, the acquisition of rights, as well as the extinguishment or loss of those already acquired, shall depend upon the happening of the event which constitutes the condition. Since the condition contemplated by the parties which is the issuance of a certificate of title in petitioners' names was fulfilled on February 6, 1985, the respective obligations of the parties under the contract of sale became mutually demandable, that is, petitioners, as sellers, were obliged to present the transfer certificate of title already in their names to private respondent Ramona P. Alcaraz, the buyer, and to immediately execute the deed of

absolute sale, while the buyer on her part, was obliged to forthwith pay the balance of the purchase price amounting to P1,190,000.00. It is also significant to note that in the first paragraph in page 9 of their petition, petitioners conclusively admitted that: 3. The petitioners-sellers Coronel bound themselves "to effect the transfer in our names from our deceased father Constancio P. Coronel, the transfer certificate of title immediately upon receipt of the downpayment abovestated". The sale was still subject to this suspensive condition. (Emphasis supplied.) (Rollo, p. 16) Petitioners themselves recognized that they entered into a contract of sale subject to a suspensive condition. Only, they contend, continuing in the same paragraph, that: . . . Had petitioners-sellers not complied with this condition of first transferring the title to the property under their names, there could be no perfected contract of sale. (Emphasis supplied.) (Ibid.) not aware that they set their own trap for themselves, for Article 1186 of the Civil Code expressly provides that: Art. 1186. The condition shall be deemed fulfilled when the obligor voluntarily prevents its fulfillment. Besides, it should be stressed and emphasized that what is more controlling than these mere hypothetical arguments is the fact that the condition herein referred to was actually and indisputably fulfilled on February 6, 1985, when a new title was issued in the names of petitioners as evidenced by TCT No. 327403 (Exh. "D"; Exh. "4"). The inevitable conclusion is that on January 19, 1985, as evidenced by the document denominated as "Receipt of Down Payment" (Exh. "A"; Exh. "1"), the parties entered into a contract of sale subject only to the suspensive condition that the sellers shall effect the issuance of new certificate title from that of their father's name to their names and that, on February 6, 1985, this condition was fulfilled (Exh. "D"; Exh. "4"). We, therefore, hold that, in accordance with Article 1187 which pertinently provides Art. 1187. The effects of conditional obligation to give, once the condition has been fulfilled, shall retroact to the day of the constitution of the obligation . . . In obligation to do or not to do, the courts shall determine, in each case, the retroactive effect of the condition that has been complied with. the rights and obligations of the parties with respect to the perfected contract of sale became mutually due and demandable as of the time of fulfillment or occurrence of

the suspensive condition on February 6, 1985. As of that point in time, reciprocal obligations of both seller and buyer arose. Petitioners also argue there could been no perfected contract on January 19, 1985 because they were then not yet the absolute owners of the inherited property. We cannot sustain this argument. Article 774 of the Civil Code defines Succession as a mode of transferring ownership as follows: Art. 774. Succession is a mode of acquisition by virtue of which the property, rights and obligations to be extent and value of the inheritance of a person are transmitted through his death to another or others by his will or by operation of law. Petitioners-sellers in the case at bar being the sons and daughters of the decedent Constancio P. Coronel are compulsory heirs who were called to succession by operation of law. Thus, at the point their father drew his last breath, petitioners stepped into his shoes insofar as the subject property is concerned, such that any rights or obligations pertaining thereto became binding and enforceable upon them. It is expressly provided that rights to the succession are transmitted from the moment of death of the decedent (Article 777, Civil Code; Cuison vs. Villanueva, 90 Phil. 850 [1952]). Be it also noted that petitioners' claim that succession may not be declared unless the creditors have been paid is rendered moot by the fact that they were able to effect the transfer of the title to the property from the decedent's name to their names on February 6, 1985. Aside from this, petitioners are precluded from raising their supposed lack of capacity to enter into an agreement at that time and they cannot be allowed to now take a posture contrary to that which they took when they entered into the agreement with private respondent Ramona P. Alcaraz. The Civil Code expressly states that: Art. 1431. Through estoppel an admission or representation is rendered conclusive upon the person making it, and cannot be denied or disproved as against the person relying thereon. Having represented themselves as the true owners of the subject property at the time of sale, petitioners cannot claim now that they were not yet the absolute owners thereof at that time. Petitioners also contend that although there was in fact a perfected contract of sale between them and Ramona P. Alcaraz, the latter breached her reciprocal obligation when she rendered impossible the consummation thereof by going to the United States of America, without leaving her address, telephone number, and Special Power of Attorney (Paragraphs 14 and 15, Answer with Compulsory Counterclaim to the Amended Complaint, p. 2; Rollo, p. 43), for which reason, so petitioners conclude, they were correct in unilaterally rescinding rescinding the contract of sale.

We do not agree with petitioners that there was a valid rescission of the contract of sale in the instant case. We note that these supposed grounds for petitioners' rescission, are mere allegations found only in their responsive pleadings, which by express provision of the rules, are deemed controverted even if no reply is filed by the plaintiffs (Sec. 11, Rule 6, Revised Rules of Court). The records are absolutely bereft of any supporting evidence to substantiate petitioners' allegations. We have stressed time and again that allegations must be proven by sufficient evidence (Ng Cho Cio vs. Ng Diong, 110 Phil. 882 [1961]; Recaro vs. Embisan, 2 SCRA 598 [1961]. Mere allegation is not an evidence (Lagasca vs. De Vera, 79 Phil. 376 [1947]). Even assuming arguendo that Ramona P. Alcaraz was in the United States of America on February 6, 1985, we cannot justify petitioner-sellers' act of unilaterally and extradicially rescinding the contract of sale, there being no express stipulation authorizing the sellers to extarjudicially rescind the contract of sale. (cf. Dignos vs. CA, 158 SCRA 375 [1988]; Taguba vs. Vda. de Leon, 132 SCRA 722 [1984]) Moreover, petitioners are estopped from raising the alleged absence of Ramona P. Alcaraz because although the evidence on record shows that the sale was in the name of Ramona P. Alcaraz as the buyer, the sellers had been dealing with Concepcion D. Alcaraz, Ramona's mother, who had acted for and in behalf of her daughter, if not also in her own behalf. Indeed, the down payment was made by Concepcion D. Alcaraz with her own personal check (Exh. "B"; Exh. "2") for and in behalf of Ramona P. Alcaraz. There is no evidence showing that petitioners ever questioned Concepcion's authority to represent Ramona P. Alcaraz when they accepted her personal check. Neither did they raise any objection as regards payment being effected by a third person. Accordingly, as far as petitioners are concerned, the physical absence of Ramona P. Alcaraz is not a ground to rescind the contract of sale. Corollarily, Ramona P. Alcaraz cannot even be deemed to be in default, insofar as her obligation to pay the full purchase price is concerned. Petitioners who are precluded from setting up the defense of the physical absence of Ramona P. Alcaraz as above-explained offered no proof whatsoever to show that they actually presented the new transfer certificate of title in their names and signified their willingness and readiness to execute the deed of absolute sale in accordance with their agreement. Ramona's corresponding obligation to pay the balance of the purchase price in the amount of P1,190,000.00 (as buyer) never became due and demandable and, therefore, she cannot be deemed to have been in default. Article 1169 of the Civil Code defines when a party in a contract involving reciprocal obligations may be considered in default, to wit: Art. 1169. Those obliged to deliver or to do something, incur in delay from the time the obligee judicially or extrajudicially demands from them the fulfillment of their obligation. xxx xxx xxx In reciprocal obligations, neither party incurs in delay if the other does not comply or is not ready to comply in a proper manner with what is incumbent upon him. From the moment one of the parties fulfill his obligation, delay by the other begins. (Emphasis supplied.)

There is thus neither factual nor legal basis to rescind the contract of sale between petitioners and respondents. With the foregoing conclusions, the sale to the other petitioner, Catalina B. Mabanag, gave rise to a case of double sale where Article 1544 of the Civil Code will apply, to wit: Art. 1544. If the same thing should have been sold to different vendees, the ownership shall be transferred to the person who may have first taken possession thereof in good faith, if it should be movable property. Should if be immovable property, the ownership shall belong to the person acquiring it who in good faith first recorded it in Registry of Property. Should there be no inscription, the ownership shall pertain to the person who in good faith was first in the possession; and, in the absence thereof to the person who presents the oldest title, provided there is good faith. The record of the case shows that the Deed of Absolute Sale dated April 25, 1985 as proof of the second contract of sale was registered with the Registry of Deeds of Quezon City giving rise to the issuance of a new certificate of title in the name of Catalina B. Mabanag on June 5, 1985. Thus, the second paragraph of Article 1544 shall apply. The above-cited provision on double sale presumes title or ownership to pass to the first buyer, the exceptions being: (a) when the second buyer, in good faith, registers the sale ahead of the first buyer, and (b) should there be no inscription by either of the two buyers, when the second buyer, in good faith, acquires possession of the property ahead of the first buyer. Unless, the second buyer satisfies these requirements, title or ownership will not transfer to him to the prejudice of the first buyer. In his commentaries on the Civil Code, an accepted authority on the subject, now a distinguished member of the Court, Justice Jose C. Vitug, explains: The governing principle is prius tempore, potior jure (first in time, stronger in right). Knowledge by the first buyer of the second sale cannot defeat the first buyer's rights except when the second buyer first registers in good faith the second sale (Olivares vs. Gonzales, 159 SCRA 33). Conversely, knowledge gained by the second buyer of the first sale defeats his rights even if he is first to register, since knowledge taints his registration with bad faith (see also Astorga vs. Court of Appeals, G.R. No. 58530, 26 December 1984). In Cruz vs. Cabana (G.R. No. 56232, 22 June 1984, 129 SCRA 656), it has held that it is essential, to merit the protection of Art. 1544, second paragraph, that the second realty buyer must act in good faith in registering his deed of sale (citing Carbonell vs. Court of Appeals, 69 SCRA 99, Crisostomo vs. CA, G.R. No. 95843, 02 September 1992). (J. Vitug Compendium of Civil Law and Jurisprudence, 1993 Edition, p. 604). Petitioner point out that the notice of lis pendens in the case at bar was annoted on the title of the subject property only on February 22, 1985, whereas, the second sale between petitioners Coronels and petitioner Mabanag was supposedly perfected prior thereto or on February 18, 1985. The idea conveyed is that at the time petitioner Mabanag, the second buyer, bought the property under a clean title, she was unaware of any adverse claim or previous sale, for which reason she is buyer in good faith.

We are not persuaded by such argument. In a case of double sale, what finds relevance and materiality is not whether or not the second buyer was a buyer in good faith but whether or not said second buyer registers such second sale in good faith, that is, without knowledge of any defect in the title of the property sold. As clearly borne out by the evidence in this case, petitioner Mabanag could not have in good faith, registered the sale entered into on February 18, 1985 because as early as February 22, 1985, a notice of lis pendens had been annotated on the transfer certificate of title in the names of petitioners, whereas petitioner Mabanag registered the said sale sometime in April, 1985. At the time of registration, therefore, petitioner Mabanag knew that the same property had already been previously sold to private respondents, or, at least, she was charged with knowledge that a previous buyer is claiming title to the same property. Petitioner Mabanag cannot close her eyes to the defect in petitioners' title to the property at the time of the registration of the property. This Court had occasions to rule that: If a vendee in a double sale registers that sale after he has acquired knowledge that there was a previous sale of the same property to a third party or that another person claims said property in a pervious sale, the registration will constitute a registration in bad faith and will not confer upon him any right. (Salvoro vs. Tanega, 87 SCRA 349 [1978]; citing Palarca vs. Director of Land, 43 Phil. 146; Cagaoan vs. Cagaoan, 43 Phil. 554; Fernandez vs. Mercader, 43 Phil. 581.) Thus, the sale of the subject parcel of land between petitioners and Ramona P. Alcaraz, perfected on February 6, 1985, prior to that between petitioners and Catalina B. Mabanag on February 18, 1985, was correctly upheld by both the courts below. Although there may be ample indications that there was in fact an agency between Ramona as principal and Concepcion, her mother, as agent insofar as the subject contract of sale is concerned, the issue of whether or not Concepcion was also acting in her own behalf as a co-buyer is not squarely raised in the instant petition, nor in such assumption disputed between mother and daughter. Thus, We will not touch this issue and no longer disturb the lower courts' ruling on this point. WHEREFORE, premises considered, the instant petition is hereby DISMISSED and the appealed judgment AFFIRMED. SO ORDERED. Narvasa, C.J., Davide, Jr. and Francisco, JJ., concur. Panganiban, J., took no part.

FIRST DIVISION

G.R. No. 125835 July 30, 1998 NATALIA CARPENA OPULENCIA, petitioner, vs. COURT OF APPEALS, ALADIN SIMUNDAC and MIGUEL OLIVAN, respondents.

PANGANIBAN, J.: Is a contract to sell a real property involved in restate proceedings valid and binding without the approval of the probate court? Statement of the Case This is the main question raised in this petition for review before us, assailing the Decision 1 of the Court of Appeals 2 in CA-GR CV No. 41994 promulgated on February 6, 1996 and its Resolution 3 dated July 19, 1996. The challenged Decision disposed as follows: WHEREFORE, premises considered, the order of the lower court dismissing the complaint is SET ASIDE and judgment is hereby rendered declaring the CONTRACT TO SELL executed by appellee in favor of appellants as valid and binding, subject to the result of the administration proceedings of the testate Estate of Demetrio Carpena.
SO ORDERED. 4

Petitioner's Motion for Reconsideration was denied in the challenged Resolution. 5 The Facts The antecedent facts, as succinctly narrated by Respondent Court of Appeals, are: In a complaint for specific performance filed with the court a quo [herein private respondents] Aladin Simundac and Miguel Oliven alleged that [herein petitioner] Natalia Carpena Opulencia executed in their favor a "CONTRACT TO SELL" Lot 2125 of the Sta. Rosa Estate, consisting of 23,766 square meters located in Sta. Rosa, Laguna at P150.00 per square meter; that plaintiffs paid a downpayment of P300,000.00 but defendant, despite demands, failed to comply with her obligations under the contract. [Private respondents] therefore prayed that [petitioner] be ordered to perform her contractual obligations and to further pay damages, attorney's fee and litigation expenses.

In her traverse, [petitioner] admitted the execution of the contract in favor of plaintiffs and receipt of P300,000.00 as downpayment. However, she put forward the following affirmative defenses: that the property subject of the contract formed part of the Estate of Demetrio Carpena (petitioner's father), in respect of which a petition for probate was filed with the Regional Trial Court, Branch 24, Bian, Laguna; that at the time the contract was executed, the parties were aware of the pendency of the probate proceeding; that the contract to sell was not approved by the probate court; that realizing the nullity of the contract [petitioner] had offered to return the downpayment received from [private respondents], but the latter refused to accept it; that [private respondents] further failed to provide funds for the tenant who demanded P150,00.00 in payment of his tenancy rights on the land; that [petitioner] had chosen to rescind the contract. At the pre-trial conference the parties stipulated on [sic] the following facts: 1. That on February 3, 1989, [private respondents] and [petitioner] entered into a contract to sell involving a parcel of land situated in Sta. Rosa, Laguna, otherwise known as Lot No. 2125 of the Sta. Rosa Estate. 2. That the price or consideration of the said sell [sic] is P150.00 per square meters; 3. That the amount of P300,000.00 had already been received by [petitioner]; 4. That the parties have knowledge that the property subject of the contract to sell is subject of the probate proceedings; 5. That [as] of this time, the probate Court has not yet issued an order either approving or denying the said sale. (p. 3, appealed Order of September 15, 1992, pp. 109-112, record). [Private respondents] submitted their evidence in support of the material allegations of the complaint. In addition to testimonies of witnesses, [private respondents] presented the following documentary evidences: (1) Contract to Sell (Exh A); (2) machine copy of the last will and testament of Demetrio Carpena (defendant's father) to show that the property sold by defendant was one of those devised to her in said will (Exh B); (3) receipts signed by defendant for the downpayment in the total amount of P300,000.00 (Exhs C, D & E); and (4) demand letters sent to defendant (Exhs F & G). It appears that [petitioner], instead of submitting her evidence, filed a Demurrer to Evidence. In essence, defendant maintained that the contract to sell was null and void for want of approval by the probate court. She further argued that the contract was subject to a suspensive condition, which was the probate of the will of defendant's father Demetrio Carpena. An Opposition was filed by [private respondents]. It appears further that in an Order dated December 15, 1992 the court a quo granted the demurrer to evidence and dismissed the complaint. It justified its action in dismissing the complaint in the following manner:

It is noteworthy that when the contract to sell was consummated, no petition was filed in the Court with notice to the heirs of the time and place of hearing, to show that the sale is necessary and beneficial. A sale of properties of an estate as beneficial to the interested parties must comply with the requisites provided by law, (Sec. 7, Rule 89, Rules of Court) which are mandatory, and without them, the authority to sell, the sale itself, and the order approving it, would be null and void ab initio. (Arcilla vs. David, 77 Phil. 718, Gabriel, et al., vs. Encarnacion, et al., L-6736, May 4, 1954; Bonaga vs. Soler, 2 Phil. 755) Besides, it is axiomatic that where the estate of a deceased person is already the subject of a testate or intestate proceeding, the administrator cannot enter into any transaction involving it without prior approval of the probate Court. (Estate of Obave, vs. Reyes, 123 SCRA 767).
As held by the Supreme Court, a decedent's representative (administrator) is not estopped from questioning the validity of his own void deed purporting to convey land. (Bona vs. Soler, 2 Phil, 755). In the case at bar, the [petitioner,] realizing the illegality of the transaction[,] has interposed the nullity of the contract as her defense, there being no approval from the probate Court, and, in good faith offers to return the money she received from the [private respondents]. Certainly, the administratrix is not estop[ped] from doing so and the action to declare the inexistence of contracts do not prescribe. This is what precipitated the filing of [petitioner's] demurrer to evidence. 6

The trial court's order of dismissal was elevated to the Court of Appeals by private respondents who alleged: 1. The lower court erred in concluding that the contract to sell is null and void, there being no approval of the probate court. 2. The lower court erred in concluding that [petitioner] in good faith offers to return the money to [private respondents]. 3. The lower court erred in concluding that [petitioner] is not under estoppel to question the validity of the contract to sell.
4. The lower court erred in not ruling on the consideration of the contract to sell which is tantamount to plain unjust enrichment of [petitioner] at the expense of [private respondents]. 7

Public Respondent's Ruling Declaring the Contract to Sell valid, subject to the outcome of the testate proceedings on Demetrio Carpena's estate, the appellate court set aside the trial court's dismissal of the complaint and correctly ruled as follows: It is apparent from the appealed order that the lower court treated the contract to sell executed by appellee as one made by the administratrix of the Estate of Demetrio Carpena for the benefit of the estate. Hence, its main reason for voiding the contract in question was the absence of the probate court's approval. Presumably, what the lower court had in mind was the sale of the estate or part thereof made by the administrator for the benefit of the estate, as authorized under Rule 89 of the Revised Rules of Court, which

requires the approval of the probate court upon application therefor with notice to the heirs, devisees and legatees. However, as adverted to by appellants in their brief, the contract to sell in question is not covered by Rule 89 of the Revised Rules of Court since it was made by appellee in her capacity as an heir, of a property that was devised to her under the will sought to be probated. Thus, while the document inadvertently stated that appellee executed the contract in her capacity as "executrix and administratrix" of the estate, a cursory reading of the entire text of the contract would unerringly show that what she undertook to sell to appellants was one of the "other properties given to her by her late father," and more importantly, it was not made for the benefit of the estate but for her own needs. To illustrate this point, it is apropos to refer to the preambular or preliminary portion of the document, which reads: WHEREAS, the SELLER is the lawful owner of a certain parcel of land, which is more particularly described as follows: xxx xxx xxx xxx xxx xxx xxx xxx xxx WHEREAS, the SELLER suffers difficulties in her living and has forced to offer the sale of the above-described property, "which property was only one among the other properties given to her by her late father," to anyone who can wait for complete clearance of the court on the Last Will Testament of her father. WHEREAS, the SELLER in order to meet her need of cash, has offered for sale the said property at ONE HUNDRED FIFTY PESOS (150.00) Philippine Currency, per square meter unto the BUYERS, and with this offer, the latter has accepted to buy and/or purchase the same, less the area for the road and other easements indicated at the back of Transfer Certificate of Title No. 2125 duly confirmed after the survey to be conducted by the BUYER's Licensed Geodetic Engineer, and whatever area [is] left. (Emphasis added). To emphasize, it is evident from the foregoing clauses of the contract that appellee sold Lot 2125 not in her capacity as executrix of the will or administratrix of the estate of her father, but as an heir and more importantly as owner of said lot which, along with other properties, was devised to her under the will sought to be probated. That being so, the requisites stipulated in Rule 89 of the Revised Rules of Court which refer to a sale made by the administrator for the benefit of the estate do not apply. xxx xxx xxx

It is noteworthy that in a Manifestation filed with this court by appellants, which is not controverted by appellee, it is mentioned that the last will and testament of Demetrio Carpena was approved in a final judgment rendered in Special Proceeding No. B-979 by the Regional Trial Court, Branch 24 Bian, Laguna. But of course such approval does not terminate the proceeding[s] since the settlement of the estate will ensue. Such proceedings will consist, among others, in the issuance by the court of a notice to creditors (Rule 86), hearing of money claims and payment of taxes and estate debts (Rule 88) and distribution of the residue to the heirs or persons entitled thereto (Rule 90). In effect, the final execution of the deed of sale itself upon appellants' payment of the balance of the purchase price will have to wait for the settlement or termination of the administration proceedings of the Estate of Demetrio Carpena. Under the foregoing premises, what the trial court should have done with the complaint was not to dismiss it but to simply put on hold further proceedings until such time that the estate or its residue will be distributed in accordance with the approved will. The rule is that when a demurrer to the evidence is granted by the trial court but reversed on appeal, defendant loses the right to adduce his evidence. In such a case, the appellate court will decide the controversy on the basis of plaintiff's evidence. In the case at bench, while we find the contract to sell valid and binding between the parties, we cannot as yet order appellee to perform her obligations under the contract because the result of the administration proceedings of the testate Estate of Demetrio Carpena has to be awaited. Hence, we shall confine our adjudication to merely declaring the validity of the questioned Contract to Sell. Hence, this appeal. 8 The Issue Petitioner raises only one issue: Whether or not the Contract to Sell dated 03 February 1989 executed by the [p]etitioner and [p]rivate [r]espondent[s] without the requisite probate court approval is valid. The Court's Ruling The petition has no merit. Contract to Sell Valid In a nutshell, petitioner contends that "where the estate of the deceased person is already the subject of a testate or intestate proceeding, the administrator cannot enter into any transaction involving it without prior approval of the Probate Court." 9 She maintains that the Contract to Sell is void because it was not approved by the probate court, as required by Section 7, Rule 89 of the Rules of Court: Sec. 7. Regulations for granting authority to sell, mortgage, or otherwise encumber estate. The court having jurisdiction of the estate of the

deceased may authorize the executor or administrator to sell, mortgage, or otherwise encumber real estate, in cases provided by these rules and when it appears necessary or beneficial, under the following regulations: xxx xxx xxx Insisting that the above rule should apply to this case, petitioner argues that the stipulations in the Contract to Sell require her to act in her capacity as an executrix or administratrix. She avers that her obligation to eject tenants pertains to the administratrix or executrix, the estate being the landlord of the said tenants. 10 Likewise demonstrating that she entered into the contract in her capacity as executor is the stipulation that she must effect the conversion of subject land from irrigated rice land to residential land and secure the necessary clearances from government offices. Petitioner alleges that these obligations can be undertaken only by an executor or administrator of an estate, and not by an heir. 11 The Court is not persuaded. As correctly ruled by the Court of Appeals, Section 7 of Rule 89 of the Rules of Court is not applicable, because petitioner entered into the Contract to Sell in her capacity as an heiress, not as an executrix or administratrix of the estate. In the contract, she represented herself as the "lawful owner" and seller of the subject parcel of land. 12 She also explained the reason for the sale to be "difficulties in her living" conditions and consequent "need of cash." 13 These representations clearly evince that she was not acting on behalf of the estate under probate when she entered into the Contract to Sell. Accordingly, the jurisprudence cited by petitioners has no application to the instant case. We emphasize that hereditary rights are vested in the heir or heirs from the moment of the decedent's death. 14Petitioner, therefore, became the owner of her hereditary share the moment her father died. Thus, the lack of judicial approval does not invalidate the Contract to Sell, because the petitioner has the substantive right to sell the whole or a part of her share in the estate of her late father. 15 Thus, in Jakosalem vs. Rafols, 16 the Court resolved an identical issue under the old Civil Code and held: Art. 440 of the Civil Code provides that "the possession of hereditary property is deemed to be transmitted to the heir without interruption from the instant of the death of the decedent, in case the inheritance be accepted." And Manresa with reason states that upon the death of a person, each of his heirs "becomes the undivided owner of the whole estate left with respect to the part or portion which might be adjudicated to him, a community of ownership being thus formed among the coowners of the estate while it remains undivided." . . . And according to article 399 of the Civil Code, every part owner may assign or mortgage his part in the common property, and the effect of such assignment or mortgage shall be limited to the portion which may be allotted him in the partition upon the dissolution of the community. Hence, where some of the heirs, without the concurrence of the others, sold a property left by their deceased father, this Court, speaking thru its then Chief Justice Cayetano Arellano, said that the sale was valid, but that the effect thereof was limited to the share which may be allotted to the vendors upon the partition of the estate. Administration of the Estate Not Prejudiced by the Contract to Sell

Petitioner further contends that "[t]o sanction the sale at this stage would bring about a partial distribution of the decedent's estate pending the final termination of the testate proceedings." 17 This becomes all the more significant in the light of the trial court's finding, as stated in its Order dated August 20, 1997, that "the legitimate of one of the heirs has been impaired." 18 Petitioner's contention is not convincing. The Contract to Sell stipulates that petitioner's offer to sell is contingent on the "complete clearance of the court on the Last Will Testament of her father." 19 Consequently, although the Contract to Sell was perfected between the petitioner and private respondents during the pendency of the probate proceedings, the consummation of the sale or the transfer of ownership over the parcel of land to the private respondents is subject to the full payment of the purchase price and to the termination and outcome of the testate proceedings. Therefore, there is no basis for petitioner's apprehension that the Contract to Sell may result in a premature partition and distribution of the properties of the estate. Indeed, it is settled that "the sale made by an heir of his share in an inheritance, subject to the pending administration, in no wise stands in the way of such administration." 20 Estoppel Finally, petitioner is estopped from backing out of her representations in her valid Contract to Sell with private respondents, from whom she had already received P300,000 as initial payment of the purchase price. Petitioner may not renege on her own acts and representations, to the prejudice of the private respondents who have relied on them. 21 Jurisprudence teaches us that neither the law nor the courts will extricate a party from an unwise or undesirable contract he or she entered into with all the required formalities and with full awareness of its consequences. 22 WHEREFORE, the petition is hereby DENIED and the assailed Decision of the Court of Appeals AFFIRMED. Costs against petitioner. SO ORDERED. Davide, Jr., Bellosillo, Vitug and Quisumbing, JJ., concur.

SECOND DIVISION G.R. No. 165300 April 23, 2010

ATTY. PEDRO M. FERRER, Petitioner, vs. SPOUSES ALFREDO DIAZ and IMELDA DIAZ, REINA COMANDANTE and SPOUSES BIENVENIDO PANGAN and ELIZABETH PANGAN, Respondents. DECISION DEL CASTILLO, J.: The basic questions to be resolved in this case are: Is a waiver of hereditary rights in favor of another executed by a future heir while the parents are still living valid? Is an adverse claim annotated on the title of a property on the basis of such waiver likewise valid and effective as to bind the subsequent owners and hold them liable to the claimant? This Petition for Review on Certiorari1 under Rule 45 of the Rules of Court assails the December 12, 2003 Decision2 of the Court of Appeals (CA) in CA-G.R. CV No. 70888.3 Said Decision modified the June 14, 2001 Summary Judgment4 of the Regional Trial Court (RTC) of Quezon City in Civil Case No. Q-99-38876 by holding respondents Spouses Bienvenido and Elizabeth Pangan (the Pangans) not solidarily liable with the other respondents, Spouses Alfredo and Imelda Diaz (the Diazes) and Reina Comandante (Comandante), to petitioner Atty. Pedro M. Ferrer (Atty. Ferrer). Likewise assailed is the CA Resolution5 dated September 10, 2004 which denied petitioners as well as respondents Spouses Diaz and Comandantes respective motions for reconsideration. The parties respective versions of the factual antecedents are as follows: Version of the Petitioner Petitioner Atty. Ferrer claimed in his original Complaint6 that on May 7, 1999, the Diazes, as represented by their daughter Comandante, through a Special Power of Attorney (SPA),7 obtained from him a loan of P1,118,228.00. The loan was secured by a Real Estate Mortgage Contract8 by way of second mortgage over Transfer Certificate of Title (TCT) No. RT-66049 and a Promissory Note10 payable within six months or up to November 7, 1999. Comandante also issued to petitioner postdated checks to secure payment of said loan. Petitioner further claimed that prior to this or on May 29, 1998, Comandante, for a valuable consideration ofP600,000.00, which amount formed part of the abovementioned secured loan, executed in his favor an instrument entitled Waiver of Hereditary Rights and Interests Over a Real Property (Still Undivided),11 the pertinent portions of which read: I, REINA D. COMANDANTE, of legal age, Filipino, married, with residence and postal address at No. 6, Road 20, Project 8, Quezon City, Metro Manila, Philippines, for a valuable consideration of SIX HUNDRED THOUSAND PESOS (P600,000.00) which constitutes my legal obligation/loan to Pedro M. Ferrer, likewise of legal age, Filipino, married to Erlinda B. Ferrer, with residence and postal address at No. 9, Lot 4, Puerto Rico Street, Loyola Grand Villas, Quezon City, Metro Manila, Philippines, by virtue of these presents, do hereby

WAIVE, and/or REPUDIATE all my hereditary rights and interests as a legitimate heir/daughter of Sps. Alfredo T. Diaz and Imelda G. Diaz in favor of said Pedro M. Ferrer, his heirs and assigns over a certain parcel of land together with all the improvements found thereon and which property is more particularly described as follows: TRANSFER CERTIFICATE OF TITLE NO. RT-6604 (82020) PR-18887 xxxx and which property is titled and registered in the name of my parents Alfredo T. Diaz and Imelda G. Diaz, as evidenced by Transfer Certificate of Title No. RT 6604 (82020) PR18887. (sgd.) REINA D. COMANDANTE Affiant On the basis of said waiver, petitioner executed an Affidavit of Adverse Claim12 which he caused to be annotated at the back of TCT No. RT-6604 on May 26, 1999. The Diazes, however, reneged on their obligation as the checks issued by Comandante were dishonored upon presentment. Despite repeated demands, said respondents still failed and refused to settle the loan. Thus, petitioner filed on September 29, 1999 a Complaint13 for Collection of Sum of Money Secured by Real Estate Mortgage Contract against the Diazes and Comandante docketed as Civil Case No. Q-99-38876 and raffled to Branch 224 of RTC, Quezon City. Petitioner twice amended his complaint. First, by including as an alternative relief the Judicial Foreclosure of Mortgage14 and, second, by impleading as additional defendants the Pangans as the mortgaged property covered by TCT No. RT-6604 was already transferred under their names in TCT No. N-209049. Petitioner prayed in his second amended complaint that all the respondents be ordered to jointly and solidarily pay him the sum ofP1,118,228.00, exclusive of interests, and/or for the judicial foreclosure of the property pursuant to the Real Estate Mortgage Contract. Version of the Respondents In her Answer15 to petitioners original complaint, Comandante alleged that petitioner and his wife were her fellow members in the Couples for Christ Movement. Sometime in 1998, she sought the help of petitioner with regard to the mortgage with a bank of her parents lot located at No. 6, Rd. 20, Project 8, Quezon City and covered by TCT No. RT-6604. She also sought financial accommodations from the couple on several occasions which totaledP500,000.00. Comandante, however, claimed that these loans were secured by chattel mortgages over her taxi units in addition to several postdated checks she issued in favor of petitioner. As she could not practically comply with her obligation, petitioner and his wife, presented to Comandante sometime in May 1998 a document denominated as Waiver of Hereditary Rights and Interests Over a Real Property (Still Undivided) pertaining to a waiver of her hereditary share over her parents abovementioned property. Purportedly, the execution of

said waiver was to secure Comandantes loan with the couple which at that time had already ballooned to P600,000.00 due to interests. A year later, the couple again required Comandante to sign the following documents: (1) a Real Estate Mortgage Contract over her parents property; and, (2) an undated Promissory Note, both corresponding to the amount ofP1,118,228.00, which petitioner claimed to be the total amount of Comandantes monetary obligation to him exclusive of charges and interests. Comandante alleged that she reminded petitioner that she was not the registered owner of the subject property and that although her parents granted her SPA, same only pertains to her authority to mortgage the property to banks and other financial institutions and not to individuals. Petitioner nonetheless assured Comandante that the SPA was also applicable to their transaction. As Comandante was still hesitant, petitioner and his wife threatened to foreclose the formers taxi units and present the postdated checks she issued to the bank for payment. For fear of losing her taxi units which were the only source of her livelihood, Comandante was thus constrained to sign the mortgage agreement as well as the promissory note. Petitioner, however, did not furnish her with copies of said documents on the pretext that they still have to be notarized, but, as can be gleaned from the records, the documents were never notarized. Moreover, Comandante claimed that the SPA alluded to by petitioner in his complaint was not the same SPA under which she thought she derived the authority to execute the mortgage contract. Comandante likewise alleged that on September 29, 1999 at 10:00 o clock in the morning, she executed an Affidavit of Repudiation/Revocation of Waiver of Hereditary Rights and Interests Over A (Still Undivided) Real Property,16 which she caused to be annotated on the title of the subject property with the Registry of Deeds of Quezon City on the same day. Interestingly, petitioner filed his complaint later that day too. By way of special and affirmative defenses, Comandante asserted in her Answer to the amended complaint17 that said complaint states no cause of action against her because the Real Estate Mortgage Contract and the waiver referred to by petitioner in his complaint were not duly, knowingly and validly executed by her; that the Waiver of Hereditary Rights and Interests Over a Real Property (Still Undivided) is a useless document as its execution is prohibited by Article 1347 of the Civil Code,18 hence, it cannot be the source of any right or obligation in petitioners favor; that the Real Estate Mortgage was of doubtful validity as she executed the same without valid authority from her parents; and, that the prayer for collection and/or judicial foreclosure was irregular as petitioner cannot seek said remedies at the same time. Apart from executing the affidavit of repudiation, Comandante also filed on October 4, 1999 a Petition for Cancellation of Adverse Claim (P.E. 2468) Under The Memorandum of Encumbrances of TCT No. RT-6604 (82020) PR-1888719 docketed as LRC Case No. Q12009 (99) and raffled to Branch 220 of RTC, Quezon City. Petitioner who was impleaded as respondent therein moved for the consolidation of said case20 with Civil Case No. Q-9938876. On June 24, 2000, Branch 220 of RTC, Quezon City ordered the consolidation of LRC Case No. Q-12009 (99) with Civil Case No. Q-99-38876. Accordingly, the records of the former case was forwarded to Branch 224. For their part, the Diazes asserted that petitioner has no cause of action against them. They claimed that they do not even know petitioner and that they did not execute any SPA in favor of Comandante authorizing her to mortgage for the second time the subject property. They also contested the due execution of the SPA as it was neither authenticated before the Philippine Consulate in the United States nor notarized before a notary public in the State of

New York where the Diazes have been residing for 16 years. They claimed that they do not owe petitioner anything. The Diazes also pointed out that the complaint merely refers to Comandantes personal obligation to petitioner with which they had nothing to do. They thus prayed that the complaint against them be dismissed.21 At the Pangans end, they alleged that they acquired the subject property by purchase in good faith and for a consideration of P3,000,000.00 on November 11, 1999 from the Diazes through the latters daughter Comandante who was clothed with SPA acknowledged before the Consul of New York. The Pangans immediately took actual possession of the property without anyone complaining or protesting. Soon thereafter, they were issued TCT No. N209049 in lieu of TCT No. RT-6604 which was cancelled. 22 However, on December 21, 1999, they were surprised upon being informed by petitioner that the subject land had been mortgaged to him by the Diazes. Upon inquiry from Comandante, the latter readily admitted that she has a personal loan with petitioner for which the mortgage of the property in petitioners favor was executed. She admitted, though, that her parents were not aware of such mortgage and that they did not authorize her to enter into such contract. Comandante also informed the Pangans that the signatures of her parents appearing on the SPA are fictitious and that it was petitioner who prepared such document. As affirmative defense, the Pangans asserted that the annotation of petitioners adverse claim on TCT No. RT-6604 cannot impair their rights as new owners of the subject property. They claimed that the Waiver of Hereditary Rights and Interests Over a Real Property (Still Undivided) upon which petitioners adverse claim is anchored cannot be the source of any right or interest over the property considering that it is null and void under paragraph 2 of Article 1347 of the Civil Code. Moreover, the Pangans asserted that the Real Estate Mortgage Contract cannot bind them nor in any way impair their ownership of subject property because it was not registered before the Register of Deeds.23 All the respondents interposed their respective counterclaims and prayed for moral and exemplary damages and attorneys fees in varying amounts. After the parties have submitted their respective pre-trial briefs, the Diazes filed on March 29, 2001 a Motion for Summary Judgment24 alleging that: first, since the documents alluded to by petitioner in his complaint were defective, he was not entitled to any legal right or relief; and, second, it was clear from the pleadings that it is Comandante who has an outstanding obligation with petitioner which the latter never denied. With these, the Diazes believed that there is no genuine issue as to any material fact against them and, hence, they were entitled to summary judgment. On May 7, 2001, petitioner also filed a Motion for Summary Judgment,25 claiming that his suit against the respondents is meritorious and well-founded and that same is documented and supported by law and jurisprudence. He averred that his adverse claim annotated at the back of TCT No. RT-6604, which was carried over in TCT No. 209049 under the names of the Pangans, is not merely anchored on the Waiver of Hereditary Rights and Interests Over a Real Property (Still Undivided) executed by Comandante, but also on the Real Estate Mortgage likewise executed by her in representation of her parents and in favor of petitioner. Petitioner insisted that said adverse claim is not frivolous and invalid and is registrable under Section 70 of Presidential Decree (PD) No. 1529. In fact, the Registrar of Deeds of Quezon City had already determined the sufficiency and/or validity of such registration by annotating

said claim, and this, respondents failed to question. Petitioner further averred that even before the sale and transfer to the Pangans of the subject property, the latter were already aware of the existence of his adverse claim. In view of these, petitioner prayed that his Motion for Summary Judgment be granted. Ruling of the Regional Trial Court After the filing of the parties respective Oppositions to the said motions for summary judgment, the trial court, in an Order dated May 31, 2001,26 deemed both motions for summary judgment submitted for resolution. Quoting substantially petitioners allegations in his Motion for Summary Judgment, it thereafter rendered on June 14, 2001 a Summary Judgment27 in favor of petitioner, the dispositive portion of which reads: WHEREFORE, premises considered, summary judgment is hereby rendered in favor of plaintiff and against defendants by: a) ORDERING all defendants jointly and solidarily to pay plaintiff the sum of ONE MILLION ONE HUNDRED EIGHTEEN THOUSAND TWO HUNDRED TWENTY EIGHT PESOS (P1,118,228.00) which is blood money of plaintiff; b) ORDERING the Honorable Registrar of Deeds of Quezon City that the rights and interest of the plaintiff over subject property be annotated at the back of T.C.T. No. N-209049; c) SENTENCING all defendants to pay plaintiffs expenses of TEN THOUSAND PESOS (P10,000.00) and to pay the costs of suit. IT IS SO ORDERED.28 The Pangans, the Diazes, and Comandante appealed to the CA.29 The Pangans faulted the trial court in holding them jointly and severally liable with the Diazes and Comandante for the satisfaction of the latters personal obligation to petitioner in the total amount of P1,118,228.00. The Diazes and Comandante, on the other hand, imputed error upon the trial court in rendering summary judgment in favor of petitioner. They averred that assuming the summary judgment was proper, the trial court should not have considered the Real Estate Mortgage Contract and the Promissory Note as they were defective, as well as petitioners frivolous and non-registrable adverse claim. In its Decision30 dated December 12, 2003, the CA declared Comandantes waiver of hereditary rights null and void. However, it found the Real Estate Mortgage executed by Comandante on behalf of her parents as binding between the parties thereto. As regards the Pangans, the CA ruled that the mortgage contract was not binding upon them as they were purchasers in good faith and for value. The property was free from the mortgage encumbrance of petitioner when they acquired it as they only came to know of the adverse claim through petitioners phone call which came right after the formers acquisition of the property. The CA further ruled that as Comandantes waiver of hereditary rights and interests upon which petitioners adverse claim was based is a nullity, it could not be a source of any right in his favor. Hence, the Pangans were not bound to take notice of such claim and are thus not liable to petitioner.

Noticeably, the appellate court did not rule on the propriety of the issuance of the Summary Judgment as raised by the Diazes and Comandante. In the ultimate, the CA merely modified the assailed Summary Judgment of the trial court by excluding the Pangans among those solidarily liable to petitioner, in effect affirming in all other respects the assailed summary judgment, viz: WHEREFORE, foregoing premises considered, the Decision of the Regional Trial Court of Quezon City, Branch 224 in Civil Case No. Q-99-38876 is hereby MODIFIED, as follows: 1. Ordering defendants-appellants Comandante and Spouses Diaz to jointly and severally pay plaintiff the sum of Php 1,118, 228.00; and 2. Ordering defendants-appellants Comandante and Spouses Diaz to jointly and severally pay plaintiff the amount of Php10,000.00 plus cost of suit. SO ORDERED.31 Petitioners Motion for Reconsideration32 having been denied by the CA in its Resolution33 dated September 10, 2004, he now comes to us through this petition for review on certiorari insisting that the Pangans should, together with the other respondents, be held solidarily liable to him for the amount of P1,118,228.00. Our Ruling The petition lacks merit. Petitioner merely reiterates his contentions in the Motion for Summary Judgment he filed before the trial court. He insists that his Adverse Claim annotated at the back of TCT No. RT6604 is not merely anchored on Comandantes Waiver of Hereditary Rights and Interests Over A Real Property (Still Undivided) but also on her being the attorney-in-fact of the Diazes when she executed the mortgage contract in favor of petitioner. He avers that his adverse claim is not frivolous or invalid and is registrable as the Registrar of Deeds of Quezon City even allowed its annotation. He also claims that even prior to the sale of subject property to the Pangans, the latter already knew of his valid and existing adverse claim thereon and are, therefore, not purchasers in good faith. Thus, petitioner maintains that the Pangans should be held, together with the Diazes and Comandante, jointly and severally liable to him in the total amount of P1,118,228.00. Petitioners contentions are untenable. The Affidavit of Adverse Claim executed by petitioner reads in part: xxxx 1. That I am the Recipient/Benefactor of compulsory heirs share over an undivided certain parcel of land together with all the improvements found therein x x x as evidenced by Waiver of Hereditary Rights and Interests Over A Real Property, executed by REINA D. COMANDANTE (a compulsory/legitimate heir of Sps. Alfredo T. Diaz and Imelda G. Diaz), x x x.

2. That in order to protect my interest over said property as a Recipient/Benefactor, for the registered owners/parents might dispose (of) and/or encumber the same in a fraudulent manner without my knowledge and consent, for the owners duplicate title was not surrendered to me, it is petitioned that this Affidavit of Adverse Claim be ANNOTATED at the back of the said title particularly on the original copy of Transfer Certificate of Title No. RT-6604 (82020) PR-18887 which is on file with the Register of Deeds of Quezon City. 3. That I am executing this Affidavit in order to attest (to) the truth of the foregoing facts and to petition the Honorable Registrar of Deeds, Quezon City, to annotate this Affidavit of Adverse Claim at the back of the said title particularly the original copy of Transfer Certificate of Title No. RT-6604 (82020) PR-18887 which is on file with the said office, so that my interest as Recipient/Benefactor of the said property will be protected especially the registered owner/parents, in a fraudulent manner might dispose (of) and/or encumber the same without my knowledge and consent. (Emphasis ours) Clearly, petitioners Affidavit of Adverse Claim was based solely on the waiver of hereditary interest executed by Comandante. This fact cannot be any clearer especially so when the inscription of his adverse claim at the back of TCT No. RT-6604 reads as follows: P.E. 2468/T-(82020)RT-6604 - - AFFIDAVIT OF ADVERSE CLAIM - - Executed under oath by PEDRO M. FERRER, married to Erlinda B. Ferrer, claiming among others that they have a claim, the interest over said property as Recipient/Benefactor, by virtue of a waiver of Hereditary Rights and Interest over a real property x x x34 (Emphasis ours) Therefore, there is no basis for petitioners assertion that the adverse claim was also anchored on the mortgage contract allegedly executed by Comandante on behalf of her parents. The questions next to be resolved are: Is Comandantes waiver of hereditary rights valid? Is petitioners adverse claim based on such waiver likewise valid and effective? We note at the outset that the validity of petitioners adverse claim should have been determined by the trial court after the petition for cancellation of petitioners adverse claim filed by Comandante was consolidated with Civil Case No. Q-99-38876.35 This is in consonance with Section 70 of PD 1529 which provides: Section 70. Adverse Claim. Whoever claims any part or interest in registered land adverse to the registered owner, arising subsequent to the date of the original registration, may, if no other provision is made in this Decree for registering the same, make a statement in writing setting forth fully his alleged right or interest, and how or under whom acquired, a reference to the number of the certificate of title of the registered owner, the name of the registered owner, and a description of the land in which the right or interest is claimed. The statement shall be signed and sworn to, and shall state the adverse claimants residence, and a place at which all notices may be served upon him. This statement shall be entitled to registration as an adverse claim on the certificate of title. The adverse claim shall be effective for a period of thirty days from the date of registration. After the lapse of said period, the annotation of adverse claim may be cancelled upon filing of a verified petition therefor by the party in interest: Provided, however, That after cancellation, no second adverse claim based on the same ground shall be registered by the same claimant.

Before the lapse of thirty days aforesaid, any party in interest may file a petition in the Court of First Instance where the land is situated for the cancellation of the adverse claim, and the court shall grant a speedy hearing upon the question of validity of such adverse claim, and shall render judgment as may be just and equitable. If the adverse claim is adjudged to be invalid, the registration thereof shall be ordered cancelled. If, in any case, the court, after notice and hearing, shall find that the adverse claim thus registered was frivolous, it may fine the claimant in an amount not less than one thousand pesos nor more than five thousand pesos, in its discretion. Before the lapse of thirty days, the claimant may withdraw his adverse claim by filing with the Register of Deeds a sworn petition to that effect. (Emphasis ours) Pursuant to the third paragraph of the afore-quoted provision, it has been held that the validity or efficaciousness of an adverse claim may only be determined by the Court upon petition by an interested party, in which event, the Court shall order the immediate hearing thereof and make the proper adjudication as justice and equity may warrant. And, it is only when such claim is found unmeritorious that the registration of the adverse claim may be cancelled.36 As correctly pointed out by respondents, the records is bereft of any showing that the trial court conducted any hearing on the matter. Instead, what the trial court did was to include this material issue among those for which it has rendered its summary judgment as shown by the following portion of the judgment: x x x it will be NOTED that subject Adverse Claim annotated at the back of Transfer Certificate of Title No. RT-6604 (82020) PR-18887, and carried over to defendants-Sps. Pangans Title No. N-20909, is not merely anchored on defendant Reina Comandantes "Waiver of Hereditary Rights and Interest Over a Real Property" but also on her being the Attorney-In-Fact of the previous registered owners/parents/defendants Sps. Alfredo and Imelda Diaz about the Real Estate Mortgage Contract for a loan of P1,118,228.00 which is a blood money of the plaintiff.Moreover, subject Adverse Claim in LRC Case No. Q-12009 (99) is NOT frivolous and invalid and consequently, REGISTRABLE by virtue of Section 110 of the Land Registration Act (now Section 70 of Presidential Decree No. 1529). 37 (Emphasis ours) It does not escape our attention that the trial court merely echoed the claim of petitioner that his adverse claim subject of LRC Case No. Q-12009 (99) is not frivolous, invalid and is consequently registrable. We likewise lament the apparent lack of effort on the part of said court to make even a short ratiocination as to how it came up with said conclusion. In fact, what followed the above-quoted portion of the summary judgment are mere recitals of the arguments raised by petitioner in his motion for summary judgment. And in the dispositive portion, the trial court merely casually ordered that petitioners adverse claim be inscribed at the back of the title of the Pangans. What is worse is that despite this glaring defect, the CA manifestly overlooked the matter even if respondents vigorously raised the same before it. Be that as it may, respondents efforts of pointing out this flaw, which we find significant, have not gone to naught as will be hereinafter discussed. All the respondents contend that the Waiver of Hereditary Rights and Interest Over a Real Property (Still Undivided) executed by Comandante is null and void for being violative of Article 1347 of the Civil Code, hence, petitioners adverse claim which was based upon such waiver is likewise void and cannot confer upon the latter any right or interest over the property.

We agree with the respondents. Pursuant to the second paragraph of Article 1347 of the Civil Code, no contract may be entered into upon a future inheritance except in cases expressly authorized by law. For the inheritance to be considered "future", the succession must not have been opened at the time of the contract. A contract may be classified as a contract upon future inheritance, prohibited under the second paragraph of Article 1347, where the following requisites concur: (1) That the succession has not yet been opened. (2) That the object of the contract forms part of the inheritance; and, (3) That the promissor has, with respect to the object, an expectancy of a right which is purely hereditary in nature.38 In this case, there is no question that at the time of execution of Comandantes Waiver of Hereditary Rights and Interest Over a Real Property (Still Undivided), succession to either of her parents properties has not yet been opened since both of them are still living. With respect to the other two requisites, both are likewise present considering that the property subject matter of Comandantes waiver concededly forms part of the properties that she expect to inherit from her parents upon their death and, such expectancy of a right, as shown by the facts, is undoubtedly purely hereditary in nature. From the foregoing, it is clear that Comandante and petitioner entered into a contract involving the formers future inheritance as embodied in the Waiver of Hereditary Rights and Interest Over a Real Property (Still Undivided) executed by her in petitioners favor. In Taedo v. Court of Appeals,39 we invalidated the contract of sale between Lazaro Taedo and therein private respondents since the subject matter thereof was a "one hectare of whatever share the former shall have over Lot 191 of the cadastral survey of Gerona, Province of Tarlac and covered by Title T-13829 of the Register of Deeds of Tarlac." It constitutes a part of Taedos future inheritance from his parents, which cannot be the source of any right nor the creator of any obligation between the parties. Guided by the above discussions, we similarly declare in this case that the Waiver of Hereditary Rights and Interest Over a Real Property (Still Undivided) executed by Comandante in favor of petitioner as not valid and that same cannot be the source of any right or create any obligation between them for being violative of the second paragraph of Article 1347 of the Civil Code. Anent the validity and effectivity of petitioners adverse claim, it is provided in Section 70 of PD 1529, that it is necessary that the claimant has a right or interest in the registered land adverse to the registered owner and that it must arise subsequent to registration. Here, as no right or interest on the subject property flows from Comandantes invalid waiver of hereditary rights upon petitioner, the latter is thus not entitled to the registration of his adverse claim. Therefore, petitioners adverse claim is without any basis and must consequently be adjudged invalid and ineffective and perforce be cancelled. Albeit we have already resolved the issues raised by petitioner, we shall not stop here as the Diazes and Comandante in their Comment40 call our attention to the failure of the CA to pass upon the issue of the propriety of the issuance by the trial court of the Summary Judgment in

favor of petitioner despite the fact that they have raised this issue before the appellate court. They argue that summary judgment is proper only when there is clearly no genuine issue as to any material fact in the action. Thus, where the defendant presented defenses tendering factual issue which call for presentation of evidence, as when he specifically denies the material allegations in the complaint, summary judgment cannot be rendered. The Diazes and Comandante then enumerate the genuine issues in the case which they claim should have precluded the trial court from issuing a summary judgment in petitioners favor. First, the execution of the SPA in favor of Comandante referred to by petitioner in his complaint was never admitted by the Diazes. They assert that as such fact is disputed, trial should have been conducted to determine the truth of the matter, same being a genuine issue. Despite this, the trial court merely took the word of the plaintiff and assumed that said document was indeed executed by them. Second, although Comandante acknowledges that she has a personal obligation with petitioner, she nevertheless, did not admit that it was in the amount of P1,118,228.00. Instead, she claims only the amount of P500,000.00 or P600,000.00 (if inclusive of interest) as her obligation. Moreover, the Diazes deny borrowing any money from petitioner and neither did the Pangans owe him a single centavo. Thus, the true amount of the obligation due the petitioner and how each of the respondents are responsible for such amount are genuine issues which need formal presentation of evidence. Lastly, they aver that the trial court ignored factual and material issues such as the lack of probative value of Comandantes waiver of hereditary rights as well as of the SPA; the fact that Comandante signed the mortgage contract and promissory note in her personal capacity; and, that all such documents were prepared by petitioner who acted as a lawyer and the creditor of Comandante at the same time. Rule 35 of the Rules of Court provides for summary judgment, the pertinent provisions of which are the following: Section 1. Summary Judgment for claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory relief may, at any time after the pleading in answer thereto has been served, move with supporting affidavits, depositions or admissions for a summary judgment in his favor upon all or any part thereof. Section 2. Summary Judgment for the defending party. A party against whom a claim, counterclaim or cross-claim is asserted or a declaratory relief is sought may, at any time, move with supporting affidavits, depositions or admissions for a summary judgment in his favor as to all or any part thereof. Section 3. Motion and proceedings thereon. The motion shall be served at least ten (10) days before the time specified for the hearing. The adverse party may serve opposing affidavits, depositions, or admissions at least three (3) days before the hearing. After the hearing, the judgment sought shall be rendered forthwith if the pleadings, supporting affidavits, depositions and admissions on file, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. As can be deduced from the above provisions, summary judgment is a procedural devise resorted to in order to avoid long drawn out litigations and useless delays. When the pleadings on file show that there are no genuine issues of facts to be tried, the Rules of Court allows a party to obtain immediate relief by way of summary judgment. That is, when the facts are not in dispute, the court is allowed to decide the case summarily by applying the law to the material facts. Conversely, where the pleadings tender a genuine issue, summary

judgment is not proper. A genuine issue is such fact which requires the presentation of evidence as distinguished from a sham, fictitious, contrived or false claim.41 Here, we find the existence of genuine issues which removes the case from the coverage of summary judgment. The variance in the allegations of the parties in their pleadings is evident. Petitioner anchors his complaint for sum of money and/or judicial foreclosure on the alleged real estate mortgage over the subject property allegedly entered into by Comandante in behalf of her parents to secure payment of a loan amounting to P1,118,228.00. To support this claim, petitioner attached to his complaint (1) the SPA alleged to have been executed by the Diazes; (2) the Real Estate Mortgage Contract pertaining to the amount ofP1,118,228.00; and, (3) a Promissory Note. Comandante, in her Answer to petitioners Amended Complaint, assailed the validity and due execution of the abovementioned documents. She asserted that the same were not duly, knowingly and validly executed by her and that it was petitioner who prepared all of them. Also, although she admitted owing petitioner, same was not an absolute admission as she limited herself to an obligation amounting only to P600,000.00 inclusive of charges and interests. She likewise claimed that such obligation is her personal obligation and not of her parents. The Diazes, for their part, also denied that they executed the SPA authorizing their daughter to mortgage their property to petitioner as well as having any obligation to the latter. Clearly, there are genuine issues in this case which require the presentation of evidence. For one, it is necessary to ascertain in a full blown trial the validity and due execution of the SPA, the Real Estate Mortgage and the Promissory Notes because the determination of the following equally significant questions depends on them, to wit: (1) Are the Diazes obligated to petitioner or is the obligation a purely personal obligation of Comandante? and, (2) Is the sum of P1,118,228.00 as shown in the Real Estate Mortgage and the Promissory Note, the amount which is really due the petitioner? To stress, trial courts have limited authority to render summary judgments and may do so only when there is clearly no genuine issue as to any material fact. When the facts as pleaded by the parties are disputed or contested, proceedings for summary judgment cannot take the place of trial.42 From the foregoing, it is apparent that the trial court should have refrained from issuing the summary judgment but instead proceeded to conduct a full blown trial of the case. In view of this, the present case should be remanded to the trial court for further proceedings and proper disposition according to the rudiments of a regular trial on the merits and not through an abbreviated termination of the case by summary judgment. WHEREFORE, the petition is DENIED. The assailed Decision of the Court of Appeals dated December 12, 2003 insofar as it excluded the respondents Spouses Bienvenido Pangan and Elizabeth Pangan from among those solidarily liable to petitioner Atty. Pedro M. Ferrer, is AFFIRMED. The inscription of the adverse claim of petitioner Atty. Pedro M. Ferrer on T.C.T. No. N-209049 is hereby ordered CANCELLED. Insofar as its other aspects are concerned, the assailed Decision is SET ASIDE and VACATED. The case is REMANDED to the Regional Trial Court of Quezon City, Branch 224 for further proceedings in accordance with this Decision. SO ORDERED

SECOND DIVISION

G.R. No. 12099 October 30, 1997 MANUEL G. REYES, MILA G. REYES, DANILO G. REYES, LYN AGAPE, ESTEBANA GALOLO, and CELSA AGAPE, petitioners, vs. COURT OF APPEALS AND JULIO VIVARES, respondent.

TORRES, JR., J.: Unless legally flawed, a testator's intention in his last will and testament is its "life and soul" which deserves reverential observance. The controversy before us deals with such a case. Petitioners Manuel G. Reyes, Mila G. Reyes, Danilo G. Reyes, Lyn Agape, Marites Agape, Estebana Galolo and Celsa Agape, the oppositors in Special Proceedings No. 112 for the probate of the will of Torcuato J. Reyes, assail in this petition for review the decision of the Court of Appeals 1 dated November 29, 1995, the dispositive portion of which reads: Wherefore, premises considered, the judgment appealed from allowing or admitting the will of Torcuato J. Reyes to probate and directing the issuance of Letters Testamentary in favor of petition Julio A. Vivares as executor without bond is AFFIRMED but modified in that the declaration that paragraph II of the Torcuato Reyes' last will and testament, including subparagraphs (a) and (b) are null and void for being contrary to law is hereby SET ASIDE, said paragraph II and subparagraphs (a) and (b) are declared VALID. Except as above modified, the judgment appealed from is AFFIRMED.
SO ORDERED. 2

The antecedent facts: On January 3, 1992, Torcuato J. Reyes executed his last will and testament declaring therein in part, to wit: xxx xxx xxx II. I give and bequeath to my wife Asuncion "Oning" R. Reyes the following properties to wit: a. All my shares of our personal properties consisting among others of jewelries, coins, antiques, statues, tablewares, furnitures, fixtures and the building;

b. All my shares consisting of one half (1/2) or 50% of all the real estates I own in common with my brother Jose, situated in Municipalities of Mambajao, Mahinog, Guinsiliban, Sagay all in Camigiun; real estates in Lunao, Gingoog, Caamulan, Sugbongcogon, Boloc-Boloc, Kinoguitan, Balingoan, Sta. Ines, Talisay, all in the province of Misamis Oriental. 3

The will consisted of two pages and was signed by Torcuato Reyes in the presence of three witnesses: Antonio Veloso, Gloria Borromeo, and Soledad Gaputan. Private respondent Julio A. Vivares was designated the executor and in his default or incapacity, his son Roch Alan S. Vivares. Reyes died on May 12, 1992 and on May 21, 1992, private respondent filed a petition for probate of the will before the Regional Trial Court of Mambajao, Camiguin. The petition was set for hearing and the order was published in the Mindanao Daily Post, a newspaper of general circulation, once a week for three consecutive weeks. Notices were likewise sent to all the persons named in the petition. On July 21, 1992, the recognized natural children of Torcuato Reyes with Estebana Galolo, namely Manuel, Mila, and Danilo all surnamed Reyes, and the deceased's natural children with Celsa Agape, namely Lyn and Marites Agape, filed an opposition with the following allegations: a) that the last will and testament of Reyes was not executed and attested in accordance with the formalities of law; and b) that Asuncion Reyes Ebarle exerted undue and improper influence upon the testator at the time of the execution of the will. The opposition further averred that Reyes was never married to and could never marry Asuncion Reyes, the woman he claimed to be his wife in the will, because the latter was already married to Lupo Ebarle who was still then alive and their marriage was never annulled. Thus, Asuncion can not be a compulsory heir for her open cohabitation with Reyes was violative of public morals. On July 22, 1992, the trial court issued an order declaring that it had Acquired jurisdiction over the petition and, therefore, allowed the presentation of evidence. After the presentation of evidence and submission of the respective memoranda, the trial court issued its decision on April 23, 1993. The trial court declared that the will was executed in accordance with the formalities prescribed by law. It, however, ruled that Asuncion Reyes, based on the testimonies of the witnesses, was never married to the deceased Reyes and, therefore, their relationship was an adulterous one. Thus: The admission in the will by the testator to the illicit relationship between him and ASUNCION REYES EBARLE who is somebody else's wife, is further bolstered, strengthened, and confirmed by the direct testimonies of the petitioner himself and his two "attesting" witnesses during the trial.
In both cases, the common denominator is the immoral, meretrecious, adulterous and illicit relationship existing between the testator and the devisee prior to the death of the testator, which constituted the sole and primary consideration for the devise or legacy, thus making the will intrinsically invalid. 4

The will of Reyes was admitted to probate except for paragraph II (a) and (b) of the will which was declared null and void for being contrary to law and morals. Hence, Julio Vivares filed an appeal before the Court of Appeals with the allegation that the oppositors failed to present any competent evidence that Asuncion Reyes was legally married to another person during the period of her cohabitation with Torcuato Reyes. On November 29, 1995, the Court of Appeals promulgated the assailed decision which affirmed the trial court's decision admitting the will for probate but with the modification that paragraph II including subparagraphs (a) and (b) were declared valid. The appellate court stated:
Considering that the oppositors never showed any competent, documentary or otherwise during the trial to show that Asuncion "Oning" Reyes' marriage to the testator was inexistent or void, either because of a pre-existing marriage or adulterous relationship, the trial court gravely erred in striking down paragraph II (a) and (b) of the subject Last Will and Testament, as void for being contrary to law and morals. Said declarations are not sufficient to destroy the presumption of marriage. Nor is it enough to overcome the very declaration of the testator that Asuncion Reyes is his wife. 5

Dissatisfied with the decision of the Court of Appeals, the oppositors filed this petition for review. Petitioners contend that the findings and conclusion of the Court of Appeals was contrary to law, public policy and evidence on record. Torcuato Reyes and Asuncion "Oning" Reyes were collateral relatives up to the fourth civil degree. Witness Gloria Borromeo testified that Oning Reyes was her cousin as her mother and the latter's father were sister and brother. They were also nieces of the late Torcuato Reyes. Thus, the purported marriage of the deceased Reyes and Oning Reyes was void ab initio as it was against public policy pursuant to Article 38 (1) of the Family Code. Petitioners further alleged that Oning Reyes was already married to Lupo Ebarle at the time she was cohabiting with the testator hence, she could never contract any valid marriage with the latter. Petitioners argued that the testimonies of the witnesses as well as the personal declaration of the testator, himself, were sufficient to destroy the presumption of marriage. To further support their contention, petitioners attached a copy of the marriage certificate of Asuncion Reyes and Lupo Ebarle. 6 The petition is devoid of merit. As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be probated. 7 Thus, the court merely inquires on its due execution, whether or not it complies with the formalities prescribed by law, and the testamentary capacity of the testator. It does not determine nor even by implication prejudge the validity or efficacy of the will's provisions. 8 The intrinsic validity is not considered since the consideration thereof usually comes only after the will has been proved and allowed. There are, however, notable circumstances wherein the intrinsic validity was first determined as when the defect of the will is apparent on its face and the probate of the will may become a useless ceremony if it is intrinsically invalid. 9 The intrinsic validity of a will may be passed upon because "practical considerations" demanded it as when there is preterition of heirs or the testamentary provisions are of doubtful legality. 10Where the parties agree that the intrinsic validity be first determined, the probate court may also do

so. 11Parenthetically, the rule on probate 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. 12 The case at bar arose from the institution of the petition for the probate of the will of the late Torcuato Reyes. Perforce, the only issues to be settled in the said proceeding were: (1) whether or not the testator had animus testandi; (2) whether or not vices of consent attended the execution of the will; and (3) whether or not the formalities of the will had been complied with. Thus, the lower court was not asked to rule upon the intrinsic validity or efficacy of the provisions of the will. As a result, the declaration of the testator that Asuncion "Oning" Reyes was his wife did not have to be scrutinized during the probate proceedings. The propriety of the institution of Oning Reyes as one of the devisees/legatees already involved inquiry on the will's intrinsic validity and which need not be inquired upon by the probate court. The lower court erroneously invoked the ruling in Nepomuceno vs. Court of Appeals (139 SCRA 206) in the instant case. In the case aforesaid, the testator himself, acknowledged his illicit relationship with the devisee, to wit: Art. IV. That since 1952, I have been living, as man and wife, with one Sofia J. Nepomuceno, whom I declared and avow to be entitled to my love an [sic] affection, for all the things which she has done for me, now and in the past; that while Sofia J. Nepomuceno has with my full knowledge and consent, did comfort and represent myself as her own husband, in truth and in fact, as well as in the eyes of the law, I could not bind her to me in the holy bonds of matrimony because of my aforementioned previous marriage. Thus, the very tenor of the will invalidates the legacy because the testator admitted he was disposing of the properties to a person with whom he had been living in concubinage. 13 To remand the case would only be a waste of time and money since the illegality or defect was already patent. This case is different from the Nepomuceno case. Testator Torcuato Reyes merely stated in his will that he was bequeathing some of his personal and real properties to his wife, Asuncion "Oning" Reyes. There was never an open admission of any illicit relationship. In the case of Nepomuceno, the testator admitted that he was already previously married and that he had an adulterous relationship with the devisee. We agree with the Court of Appeals that the trial court relied on uncorroborated testimonial evidence that Asuncion Reyes was still married to another during the time she cohabited with the testator. The testimonies of the witnesses were merely hearsay and even uncertain as to the whereabouts or existence of Lupo Ebarle, the supposed husband of Asuncion. Thus: The foregoing testimony cannot go against the declaration of the testator that Asuncion "Oning" Reyes is his wife. In Alvarado v. City Government of Tacloban (supra) the Supreme Court stated that the declaration of the of the husband is competent evidence to show the fact of marriage.
Considering that the oppositors never showed any competent evidence, documentary or otherwise during the trial to show that Asuncion "Oning" Reyes' marriage to the testator was inexistent or void, either because of a pre-existing marriage or adulterous relationship, the trial court gravely erred in striking down

paragraph II (a) and (b) of the subject Last Will and Testament, as void for being contrary to law and morals. Said declarations are not sufficient to destroy the presumption of marriage. Nor is it enough to overcome the very declaration of the testator that Asuncion Reyes is his wife. 14

In the elegant language of Justice Moreland written decades ago, he said A will is the testator speaking after death. Its provisions have substantially the same force and effect in the probate court as if the testator stood before the court in full life making the declarations by word of mouth as they appear in the will. That was the special purpose of the law in the creation of the instrument known as the last will and testament. Men wished to speak after they were dead and the law, by the creation of that instrument, permitted them to do so. . . . All doubts must be resolved in favor of the testator's having meant just what he said. (Santos vs. Manarang, 27 Phil. 209). Petitioners tried to refute this conclusion of the Court of Appeals by presenting belatedly a copy of the marriage certificate of Asuncion Reyes and Lupo Ebarle. Their failure to present the said certificate before the probate court to support their position that Asuncion Reyes had an existing marriage with Ebarle constituted a waiver and the same evidence can no longer be entertained on appeal, much less in this petition for review. This Court would not try the case anew or settle factual issues since its jurisdiction is confined to resolving questions of law which have been passed upon by the lower courts. The settled rule is that the factual findings of the appellate court will not be disturbed unless shown to be contrary to the evidence on the record, which petitioners have not shown in this case. 15 Considering the foregoing premises, we sustain the findings of the appellate court it appearing that it did not commit a reversible error in issuing the challenged decision. ACCORDINGLY, decision appealed from dated November 29, 1995, is hereby AFFIRMED and the instant petition for review is DENIED for lack of merit. SO ORDERED. Regalado, Romero, Puno and Mendoza, JJ., concur.

FIRST DIVISION G.R. No. L-62952 October 9, 1985 SOFIA J. NEPOMUCENO, petitioner, vs. THE HONORABLE COURT OF APPEALS, RUFINA GOMEZ, OSCAR JUGO ANG, CARMELITA JUGO,respondents.

GUTIERREZ, JR., J.: This is a petition for certiorari to set aside that portion of the decision of the respondent Court of Appeals (now intermediate Appellate Court) dated June 3, 1982, as amended by the resolution dated August 10, 1982, declaring as null and void the devise in favor of the petitioner and the resolution dated December 28, 1982 denying petitioner's motion for reconsideration. Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and Testament duly signed by him at the end of the Will on page three and on the left margin of pages 1, 2 and 4 thereof in the presence of Celestina Alejandro, Myrna C. Cortez, and Leandro Leano, who in turn, affixed their signatures below the attestation clause and on the left margin of pages 1, 2 and 4 of the Will in the presence of the testator and of each other and the Notary Public. The Will was acknowledged before the Notary Public Romeo Escareal by the testator and his three attesting witnesses. In the said Will, the testator named and appointed herein petitioner Sofia J. Nepomuceno as his sole and only executor of his estate. It is clearly stated in the Will that the testator was legally married to a certain Rufina Gomez by whom he had two legitimate children, Oscar and Carmelita, but since 1952, he had been estranged from his lawfully wedded wife and had been living with petitioner as husband and wife. In fact, on December 5, 1952, the testator Martin Jugo and the petitioner herein, Sofia J. Nepomuceno were married in Victoria, Tarlac before the Justice of the Peace. The testator devised to his forced heirs, namely, his legal wife Rufina Gomez and his children Oscar and Carmelita his entire estate and the free portion thereof to herein petitioner. The Will reads in part: Art. III. That I have the following legal heirs, namely: my aforementioned legal wife, Rufina Gomez, and our son, Oscar, and daughter Carmelita, both surnamed Jugo, whom I declare and admit to be legally and properly entitled to inherit from me; that while I have been estranged from my above-named wife for so many years, I cannot deny that I was legally married to her or that we have been separated up to the present for reasons and justifications known fully well by them: Art. IV. That since 1952, 1 have been living, as man and wife with one Sofia J. Nepomuceno, whom I declare and avow to be entitled to my love and affection, for all the things which she has done for me, now and in the past; that while Sofia J. Nepomuceno has with my full knowledge and consent, did comport and represent myself as her own husband, in truth and in fact, as

well as in the eyes of the law, I could not bind her to me in the holy bonds of matrimony because of my aforementioned previous marriage; On August 21, 1974, the petitioner filed a petition for the probate of the last Will and Testament of the deceased Martin Jugo in the Court of First Instance of Rizal, Branch XXXIV, Caloocan City and asked for the issuance to her of letters testamentary. On May 13, 1975, the legal wife of the testator, Rufina Gomez and her children filed an opposition alleging inter alia that the execution of the Will was procured by undue and improper influence on the part of the petitioner; that at the time of the execution of the Will, the testator was already very sick and that petitioner having admitted her living in concubinage with the testator, she is wanting in integrity and thus, letters testamentary should not be issued to her. On January 6, 1976, the lower court denied the probate of the Will on the ground that as the testator admitted in his Will to cohabiting with the petitioner from December 1952 until his death on July 16, 1974, the Will's admission to probate will be an Idle exercise because on the face of the Will, the invalidity of its intrinsic provisions is evident. The petitioner appealed to the respondent-appellate court. On June 2, 1982, the respondent court set aside the decision of the Court of First Instance of Rizal denying the probate of the will. The respondent court declared the Will to be valid except that the devise in favor of the petitioner is null and void pursuant to Article 739 in relation with Article 1028 of the Civil Code of the Philippines. The dispositive portion of the decision reads: WHEREFORE, the decision a quo is hereby set aside, the will in question declared valid except the devise in favor of the appellant which is declared null and void. The properties so devised are instead passed on in intestacy to the appellant in equal shares, without pronouncement as to cost. On June 15, 1982, oppositors Rufina Gomez and her children filed a "Motion for Correction of Clerical Error" praying that the word "appellant" in the last sentence of the dispositive portion of the decision be changed to "appellees" so as to read: "The properties so devised are instead passed on intestacy to the appellees in equal shares, without pronouncement as to costs." The motion was granted by the respondent court on August 10, 1982. On August 23, 1982, the petitioner filed a motion for reconsideration. This was denied by the respondent court in a resolution dated December 28, 1982. The main issue raised by the petitioner is whether or not the respondent court acted in excess of its jurisdiction when after declaring the last Will and Testament of the deceased Martin Jugo validly drawn, it went on to pass upon the intrinsic validity of the testamentary provision in favor of herein petitioner. The petitioner submits that the validity of the testamentary provision in her favor cannot be passed upon and decided in the probate proceedings but in some other proceedings because the only purpose of the probate of a Will is to establish conclusively as against everyone that a Will was executed with the formalities required by law and that the testator has the mental capacity to execute the same. The petitioner further contends that even if the

provisions of paragraph 1 of Article 739 of the Civil Code of the Philippines were applicable, the declaration of its nullity could only be made by the proper court in a separate action brought by the legal wife for the specific purpose of obtaining a declaration of the nullity of the testamentary provision in the Will in favor of the person with whom the testator was allegedly guilty of adultery or concubinage. The respondents on the other hand contend that the fact that the last Will and Testament itself expressly admits indubitably on its face the meretricious relationship between the testator and the petitioner and the fact that petitioner herself initiated the presentation of evidence on her alleged ignorance of the true civil status of the testator, which led private respondents to present contrary evidence, merits the application of the doctrine enunciated in Nuguid v. Felix Nuguid, et al. (17 SCRA 449) and Felix Balanay, Jr. v. Hon. Antonio Martinez, et al.(G.R. No. L- 39247, June 27, 1975). Respondents also submit that the admission of the testator of the illicit relationship between him and the petitioner put in issue the legality of the devise. We agree with the respondents. The respondent court acted within its jurisdiction when after declaring the Will to be validly drawn, it went on to pass upon the intrinsic validity of the Will and declared the devise in favor of the petitioner null and void. The general rule is that in probate proceedings, the court's area of inquiry is limited to an examination and resolution of the extrinsic validity of the Will. The rule is expressed thus: xxx xxx xxx ... It is elementary that a probate decree finally and definitively settles all questions concerning capacity of the testator and the proper execution and witnessing of his last Will and testament, irrespective of whether its provisions are valid and enforceable or otherwise. (Fernandez v. Dimagiba,21 SCRA 428) The petition below being for the probate of a Will, the court's area of inquiry is limited to the extrinsic validity thereof. The testators testamentary capacity and the compliance with the formal requisites or solemnities prescribed by law are the only questions presented for the resolution of the court. Any inquiry into the intrinsic validity or efficacy of the provisions of the will or the legality of any devise or legacy is premature. xxx xxx xxx True or not, the alleged sale is no ground for the dismissal of the petition for probate. Probate is one thing; the validity of the testamentary provisions is another. The first decides the execution of the document and the testamentary capacity of the testator; the second relates to descent and distribution (Sumilang v. Ramagosa, 21 SCRA 1369) xxx xxx xxx To establish conclusively as against everyone, and once for all, the facts that a will was executed with the formalities required by law and that the testator was in a condition to make a will, is the only purpose of the proceedings

under the new code for the probate of a will. (Sec. 625). The judgment in such proceedings determines and can determine nothing more. In them the court has no power to pass upon the validity of any provisions made in the will. It can not decide, for example, that a certain legacy is void and another one valid. ... (Castaneda v. Alemany, 3 Phil. 426) The rule, however, is not inflexible and absolute. Given 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. In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted the petitioner as universal heir and completely preterited her surviving forced heirs. A will of this nature, no matter how valid it may appear extrinsically, would be null and void. Separate or latter proceedings to determine the intrinsic validity of the testamentary provisions would be superfluous. Even before establishing the formal validity of the will, the Court in Balanay .Jr. v. Martinez (64 SCRA 452) passed upon the validity of its intrinsic provisions. Invoking "practical considerations", we stated: The basic issue is whether the probate court erred in passing upon the intrinsic validity of the will, before ruling on its allowance or formal validity, and in declaring it void. We are of the opinion that in view of certain unusual provisions of the will, which are of dubious legality, and because of the motion to withdraw the petition for probate (which the lower court assumed to have been filed with the petitioner's authorization) the trial court acted correctly in passing upon the will's intrinsic validity even before its formal validity had been established. The probate of a will might become an Idle ceremony if on its face it appears to be intrinsically void. Where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue (Nuguid v. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with Sumilang vs. Ramagosa L-23135, December 26, 1967, 21 SCRA 1369; Cacho v. Udan L-19996, April 30, 1965, 13 SCRA 693). There appears to be no more dispute at this time over the extrinsic validity of the Will. Both parties are agreed that the Will of Martin Jugo was executed with all the formalities required by law and that the testator had the mental capacity to execute his Will. The petitioner states that she completely agrees with the respondent court when in resolving the question of whether or not the probate court correctly denied the probate of Martin Jugo's last Will and Testament, it ruled: This being so, the will is declared validly drawn. (Page 4, Decision, Annex A of Petition.) On the other hand the respondents pray for the affirmance of the Court of Appeals' decision in toto.

The only issue, therefore, is the jurisdiction of the respondent court to declare the testamentary provision in favor of the petitioner as null and void. We sustain the respondent court's jurisdiction. As stated in Nuguid v. Nuguid, (supra): 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 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. (Section 2, Rule 1, Rules of Court. Case, et al. v. Jugo, et al., 77 Phil. 517, 522). After all, there exists a justiciable controversy crying for solution. We see no useful purpose that would be served if we remand the nullified provision to the proper court in a separate action for that purpose simply because, in the probate of a will, the court does not ordinarily look into the intrinsic validity of its provisions. Article 739 of the Civil Code provides: The following donations shall be void: (1) Those made between persons who were guilty of adultery or concubinage at the time of the donation; (2) Those made between persons found guilty of the same criminal offense, in consideration thereof; (3) Those made to a public officer or his wife, descendants and ascendants, by reason of his office. In the case referred to in No. 1, the action for declaration of nullity may be brought by the spouse of the donor or donee; and the guilt of the donor and donee may be proved by preponderance of evidence in the same action. Article 1028 of the Civil Code provides: The prohibitions mentioned in Article 739, concerning donations inter vivos shall apply to testamentary provisions. In Article III of the disputed Will, executed on August 15, 1968, or almost six years before the testator's death on July 16, 1974, Martin Jugo stated that respondent Rufina Gomez was his legal wife from whom he had been estranged "for so many years." He also declared that respondents Carmelita Jugo and Oscar Jugo were his legitimate children. In Article IV, he stated that he had been living as man and wife with the petitioner since 1952. Testator Jugo declared that the petitioner was entitled to his love and affection. He stated that Nepomuceno represented Jugo as her own husband but "in truth and in fact, as well as in the eyes of the law, I could not bind her to me in the holy bonds of matrimony because of my aforementioned previous marriage.

There is no question from the records about the fact of a prior existing marriage when Martin Jugo executed his Will. There is also no dispute that the petitioner and Mr. Jugo lived together in an ostensible marital relationship for 22 years until his death. It is also a fact that on December 2, 1952, Martin Jugo and Sofia J. Nepomuceno contracted a marriage before the Justice of the Peace of Victoria, Tarlac. The man was then 51 years old while the woman was 48. Nepomuceno now contends that she acted in good faith for 22 years in the belief that she was legally married to the testator. The records do not sustain a finding of innocence or good faith. As argued by the private respondents: First. The last will and testament itself expressly admits indubitably on its face the meretricious relationship between the testator and petitioner, the devisee. Second. Petitioner herself initiated the presentation of evidence on her alleged ignorance of the true civil status of the testator, which led private respondents to present contrary evidence. In short, the parties themselves dueled on the intrinsic validity of the legacy given in the will to petitioner by the deceased testator at the start of the proceedings. Whether or not petitioner knew that testator Martin Jugo, the man he had lived with as man and wife, as already married, was an important and specific issue brought by the parties before the trial court, and passed upon by the Court of Appeals. Instead of limiting herself to proving the extrinsic validity of the will, it was petitioner who opted to present evidence on her alleged good faith in marrying the testator. (Testimony of Petitioner, TSN of August 1, 1982, pp. 56-57 and pp. 62-64). Private respondents, naturally, presented evidence that would refute the testimony of petitioner on the point. Sebastian Jugo, younger brother of the deceased testator, testified at length on the meretricious relationship of his brother and petitioner. (TSN of August 18,1975). Clearly, the good faith of petitioner was by option of the parties made a decisive issue right at the inception of the case. Confronted by the situation, the trial court had to make a ruling on the question. When the court a quo held that the testator Martin Jugo and petitioner 'were deemed guilty of adultery or concubinage', it was a finding that petitioner was not the innocent woman she pretended to be.

xxx xxx xxx 3. If a review of the evidence must be made nonetheless, then private respondents respectfully offer the following analysis: FIRST: The secrecy of the marriage of petitioner with the deceased testator in a town in Tarlac where neither she nor the testator ever resided. If there was nothing to hide from, why the concealment' ? Of course, it maybe argued that the marriage of the deceased with private respondent Rufina Gomez was likewise done in secrecy. But it should be remembered that Rufina Gomez was already in the family way at that time and it would seem that the parents of Martin Jugo were not in favor of the marriage so much so that an action in court was brought concerning the marriage. (Testimony of Sebastian Jugo, TSN of August 18, 1975, pp. 29-30) SECOND: Petitioner was a sweetheart of the deceased testator when they were still both single. That would be in 1922 as Martin Jugo married respondent Rufina Gomez on November 29, 1923 (Exh. 3). Petitioner married the testator only on December 5, 1952. There was a space of about 30 years in between. During those 30 years, could it be believed that she did not even wonder why Martin Jugo did not marry her nor contact her anymore after November, 1923 - facts that should impel her to ask her groom before she married him in secrecy, especially so when she was already about 50 years old at the time of marriage. THIRD: The fact that petitioner broke off from Martin Jugo in 1923 is by itself conclusive demonstration that she new that the man she had openly lived for 22 years as man and wife was a married man with already two children. FOURTH: Having admitted that she knew the children of respondent Rufina Gomez, is it possible that she would not have asked Martin Jugo whether or not they were his illegitimate or legitimate children and by whom? That is unFilipino. FIFTH: Having often gone to Pasig to the residence of the parents of the deceased testator, is it possible that she would not have known that the mother of private respondent Oscar Jugo and Carmelita Jugo was respondent Rufina Gomez, considering that the houses of the parents of Martin Jugo (where he had lived for many years) and that of respondent Rufina Gomez were just a few meters away? Such pretentions of petitioner Sofia Nepomuceno are unbelievable. They are, to say the least, inherently improbable, for they are against the experience in common life and the ordinary instincts and promptings of human nature that a woman would not bother at all to ask the man she was going to marry whether or not he was already married to another, knowing that her groom had children. It would be a story that would strain human credulity to the limit if petitioner did not know that Martin Jugo was already a married man in view of the irrefutable fact that it was precisely his marriage to respondent Rufina Gomez that led petitioner to break off with the deceased during their younger years.

Moreover, the prohibition in Article 739 of the Civil Code is against the making of a donation between persons who are living in adultery or concubinage. It is the donation which becomes void. The giver cannot give even assuming that the recipient may receive. The very wordings of the Will invalidate the legacy because the testator admitted he was disposing the properties to a person with whom he had been living in concubinage. WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the Court of Appeals, now Intermediate Appellate Court, is AFFIRMED. No costs. SO ORDERED. Teehankee (Chairman), Melencio-Herrera, Plana, Relova, De la Fuente and Patajo, JJ., concur.

EN BANC G.R. No. L-14074 November 7, 1918

In the matter of the probation of the will of Jose Riosa. MARCELINO CASAS, applicant-appellant, Vicente de Vera for petitioner-appellant.

MALCOLM, J.: The issue which this appeal presents is whether in the Philippine Islands the law existing on the date of the execution of a will, or the law existing at the death of the testator, controls. Jose Riosa died on April 17, 1917. He left a will made in the month of January, 1908, in which he disposed of an estate valued at more than P35,000. The will was duly executed in accordance with the law then in force, namely, section 618 of the Code of Civil Procedure. The will was not executed in accordance with Act No. 2645, amendatory of said section 618, prescribing certain additional formalities for the signing and attestation of wills, in force on and after July 1, 1916. In other words, the will was in writing, signed by the testator, and attested and subscribed by three credible witnesses in the presence of the testator and of each other; but was not signed by the testator and the witnesses on the left margin of each and every page, nor did the attestation state these facts. The new law, therefore, went into effect after the making of the will and before the death of the testator, without the testator having left a will that conforms to the new requirements. Section 618 of the Code of Civil Procedure reads: No will, except as provided in the preceding section, shall be valid to pass any estate, real or personal, nor charge or affect the same, unless it be in writing and signed by the testator, or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of each other. The attestation shall state the fact that the testator signed the will, or caused it to be signed by some other person, at his express direction, in the presence of three witnesses, and that they attested and subscribed it in his presence and in the presence of each other. But the absence of such form of attestation shall not render the will invalid if it is proven that the will was in fact signed and attested as in this section provided. Act No. 2645 has amended section 618 of the Code of Civil Procedure so as to make said section read as follows: SEC. 618. Requisites of will. No will, except as provided in the preceding section, shall be valid to pass any estate, real or personal, nor charge or affect the

same, unless it be written in the language or dialect known by the testator and signed by him, or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of each other. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each, and every page thereof, on the left margin, and said pages shall be numbered correlatively in letters placed on the upper part of each sheet. 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. This court has heretofore held in a decision handed down by the Chief Justice, as to a will made after the date Act No. 2645 went into effect, that it must comply with the provisions of this law. (Caraig vs Tatlonghari, R. G. No. 12558, dated March 23, 1918 [not published].) The court has further held in a decision handed down by Justice Torres, as to will executed by a testator whose death took place prior to the operative date of Act No. 2645, that the amendatory act is inapplicable. (Bona vs. Briones, [1918], 38 Phil., 276.) The instant appeal presents an entirely different question. The will was execute prior to the enactment of Act No. 2645 and the death occurred after the enactment of this law. There is a clear cleavage of authority among the cases and the text-writers, as to the effect of a change in the statutes prescribing the formalities necessary to be observed in the execution of a will, when such change is made intermediate to the execution of a will and the death of a testator. (See generally 40 Cyc., 1076. and any textbook on Wills, and Lane's Appeal from Probate [1889], 57 Conn., 182.) The rule laid down by the courts in many jurisdictions is that the statutes in force at the testator's death are controlling, and that a will not executed in conformity with such statutes is invalid, although its execution was sufficient at the time it was made. The reasons assigned for applying the later statute are the following: "As until the death of the testator the paper executed by him, expressing his wishes, is not a will, but a mere inchoate act which may or may not be a will, the law in force at the testator's death applies and controls the proof of the will." (Sutton vs. Chenault [1855], 18 Ga., 1.) Were we to accept the foregoing proposition and the reasons assigned for it, it would logically result that the will of Jose Riosa would have to be held invalid. The rule prevailing in many other jurisdictions is that the validity of the execution of a will must be tested by the statutes in force at the time of its execution and that statutes subsequently enacted have no retrospective effect. This doctrine is believed to be supported by the weight of authority. It was the old English view; in Downs (or Downing) vs. Townsend (Ambler, 280), Lord Hardwicke is reported to have said that "the general rule as to testaments is, that the time of the testament, and not the testator's death, is regarded." It is also the modern view, including among other decisions one of the Supreme Court of Vermont from which State many of the sections of the Code if Civil Procedure of the Philippine Islands relating to wills are taken. (Giddings vs. Turgeon [1886], 58 Vt., 103.) Of the numerous decisions of divergent tendencies, the opinion by the learned Justice Sharswood (Taylorvs. Mitchell [1868], 57 Pa. St., 209) is regarded to be the best considered. In this opinion is found the following: Retrospective laws generally if not universally work injustice, and ought to be so construed only when the mandate of the legislature is imperative. When a testator

makes a will, formally executed according to the requirements of the law existing at the time of its execution, it would unjustly disappoint his lawful right of disposition to apply to it a rule subsequently enacted, though before his death. While it is true that every one is presumed to know the law, the maxim in fact is inapplicable to such a case; for he would have an equal right to presume that no new law would affect his past act, and rest satisfied in security on that presumption. . . . It is true, that every will is ambulatory until the death of the testator, and the disposition made by it does not actually take effect until then. General words apply to the property of which the testator dies possessed, and he retains the power of revocation as long as he lives. The act of bequeathing or devising, however, takes place when the will is executed, though to go into effect at a future time. A third view, somewhat larger in conception than the preceding one, finding support in the States of Alabama and New York, is that statutes relating to the execution of wills, when they increase the necessary formalities, should be construed so as not to impair the validity of a will already made and, when they lessen the formalities required, should be construed so as to aid wills defectively executed according to the law in force at the time of their making (Hoffman vs. Hoffman, [1855], 26 Ala., 535; Price vs. Brown, 1 Bradf., Surr. N.Y., 252.) This court is given the opportunity to choose between the three rules above described. Our selection, under such circumstances, should naturally depend more on reason than on technicality. Above all, we cannot lose sight of the fact that the testator has provided in detail for the disposition of his property and that his desires should be respected by the courts. Justice is a powerful pleader for the second and third rules on the subject. The plausible reasoning of the authorities which back the first proposition is, we think, fallacious. The act of bequeathing or devising is something more than inchoate or ambulatory. In reality, it becomes a completed act when the will is executed and attested according to the law, although it does not take effect on the property until a future time.
lawphil.net

It is, of course, a general rule of statutory construction, as this court has said, that "all statutes are to be construed as having only a prospective operation unless the purpose and intention of the Legislature to give them a retrospective effect is expressly declared or is necessarily implied from the language used. In every case of doubt, the doubt must be resolved against the restrospective effect." (Montilla vs. Corporacion de PP. Agustinos [1913], 24 Phil., 220. See also Chew Heong vs. U.S. [1884], 112 U.S., 536; U.S. vs American Sugar Ref. Co. [1906], 202 U.S., 563.) Statute law, as found in the Civil Code, is corroborative; article 3 thereof provides that "laws shall not have a retroactive effect, unless therein otherwise prescribed." The language of Act No. 2645 gives no indication of retrospective effect. Such, likewise, has been the uniform tendency of the Supreme Court of the Philippine Islands on cases having special application to testamentary succession. (Abello vs. Kock de Monaterio [1904], 3 Phil., 558; Timbol vs. Manalo [1906], 6 Phil., 254; Bona vs. Briones, supra; In the Matter of the Probation of the Will of Bibiana Diquia [1918], R. G. No. 13176, 1 concerning the language of the Will. See also section 617, Code of Civil Procedure.) The strongest argument against our accepting the first two rules comes out of section 634 of the Code of Civil Procedure which, in negative terms, provides that a will shall be disallowed in either of five cases, the first being "if not executed and attested as in this Act provided." Act No. 2645 has, of course, become part and parcel of the Code of Civil Procedure. The will in question is admittedly not executed and attested as provided by the

Code of Civil Procedure as amended. Nevertheless, it is proper to observe that the general principle in the law of wills inserts itself even within the provisions of said section 634. Our statute announces a positive rule for the transference of property which must be complied with as completed act at the time of the execution, so far as the act of the testator is concerned, as to all testaments made subsequent to the enactment of Act No. 2645, but is not effective as to testaments made antecedent to that date. To answer the question with which we began this decision, we adopt as our own the second rule, particularly as established by the Supreme Court of Pennsylvania. The will of Jose Riosa is valid. The order of the Court of First Instance for the Province of Albay of December 29, 1917, disallowing the will of Jose Riosa, is reversed, and the record shall be returned to the lower court with direction to admit the said will to probate, without special findings as to costs. So ordered. Arellano, C.J., Torres, Johnson, Street, Avancea and Fisher, JJ., concur.

EN BANC G.R. No. L-7188 August 9, 1954

In re: Will and Testament of the deceased REVEREND SANCHO ABADIA. SEVERINA A. VDA. DE ENRIQUEZ, ET AL., petitioners-appellees, vs. MIGUEL ABADIA, ET AL., oppositors-appellants. Manuel A. Zosa, Luis B. Ladonga, Mariano A. Zosa and B. G. Advincula for appellants. C. de la Victoria for appellees. MONTEMAYOR, J.: On September 6, 1923, Father Sancho Abadia, parish priest of Talisay, Cebu, executed a document purporting to be his Last Will and Testament now marked Exhibit "A". Resident of the City of Cebu, he died on January 14, 1943, in the municipality of Aloguinsan, Cebu, where he was an evacuee. He left properties estimated at P8,000 in value. On October 2, 1946, one Andres Enriquez, one of the legatees in Exhibit "A", filed a petition for its probate in the Court of First Instance of Cebu. Some cousins and nephews who would inherit the estate of the deceased if he left no will, filed opposition. During the hearing one of the attesting witnesses, the other two being dead, testified without contradiction that in his presence and in the presence of his co-witnesses, Father Sancho wrote out in longhand Exhibit "A" in Spanish which the testator spoke and understood; that he (testator) signed on he left hand margin of the front page of each of the three folios or sheets of which the document is composed, and numbered the same with Arabic numerals, and finally signed his name at the end of his writing at the last page, all this, in the presence of the three attesting witnesses after telling that it was his last will and that the said three witnesses signed their names on the last page after the attestation clause in his presence and in the presence of each other. The oppositors did not submit any evidence. The learned trial court found and declared Exhibit "A" to be a holographic will; that it was in the handwriting of the testator and that although at the time it was executed and at the time of the testator's death, holographic wills were not permitted by law still, because at the time of the hearing and when the case was to be decided the new Civil Code was already in force, which Code permitted the execution of holographic wills, under a liberal view, and to carry out the intention of the testator which according to the trial court is the controlling factor and may override any defect in form, said trial court by order dated January 24, 1952, admitted to probate Exhibit "A", as the Last Will and Testament of Father Sancho Abadia. The oppositors are appealing from that decision; and because only questions of law are involved in the appeal, the case was certified to us by the Court of Appeals. The new Civil Code (Republic Act No. 386) under article 810 thereof provides that a person may execute a holographic will which must be entirely written, dated and signed by the testator himself and need not be witnessed. It is a fact, however, that at the time that Exhibit "A" was executed in 1923 and at the time that Father Abadia died in 1943, holographic wills were not permitted, and the law at the time imposed certain requirements for the execution of wills, such as numbering correlatively each page (not folio or sheet) in letters and signing on the left hand margin by the testator and by the three attesting witnesses, requirements which were not complied with in Exhibit "A" because the back pages of the first two folios of

the will were not signed by any one, not even by the testator and were not numbered, and as to the three front pages, they were signed only by the testator. Interpreting and applying this requirement this Court in the case of In re Estate of Saguinsin, 41 Phil., 875, 879, referring to the failure of the testator and his witnesses to sign on the left hand margin of every page, said: . . . . This defect is radical and totally vitiates the testament. It is not enough that the signatures guaranteeing authenticity should appear upon two folios or leaves; three pages having been written on, the authenticity of all three of them should be guaranteed by the signature of the alleged testatrix and her witnesses. And in the case of Aspe vs. Prieto, 46 Phil., 700, referring to the same requirement, this Court declared: From an examination of the document in question, it appears that the left margins of the six pages of the document are signed only by Ventura Prieto. The noncompliance with section 2 of Act No. 2645 by the attesting witnesses who omitted to sign with the testator at the left margin of each of the five pages of the document alleged to be the will of Ventura Prieto, is a fatal defect that constitutes an obstacle to its probate. What is the law to apply to the probate of Exh. "A"? May we apply the provisions of the new Civil Code which not allows holographic wills, like Exhibit "A" which provisions were invoked by the appellee-petitioner and applied by the lower court? But article 795 of this same new Civil Code expressly provides: "The validity of a will as to its form depends upon the observance of the law in force at the time it is made." The above provision is but an expression or statement of the weight of authority to the affect that the validity of a will is to be judged not by the law enforce at the time of the testator's death or at the time the supposed will is presented in court for probate or when the petition is decided by the court but at the time the instrument was executed. One reason in support of the rule is that although the will operates upon and after the death of the testator, the wishes of the testator about the disposition of his estate among his heirs and among the legatees is given solemn expression at the time the will is executed, and in reality, the legacy or bequest then becomes a completed act. This ruling has been laid down by this court in the case of In re Will of Riosa, 39 Phil., 23. It is a wholesome doctrine and should be followed. Of course, there is the view that the intention of the testator should be the ruling and controlling factor and that all adequate remedies and interpretations should be resorted to in order to carry out said intention, and that when statutes passed after the execution of the will and after the death of the testator lessen the formalities required by law for the execution of wills, said subsequent statutes should be applied so as to validate wills defectively executed according to the law in force at the time of execution. However, we should not forget that from the day of the death of the testator, if he leaves a will, the title of the legatees and devisees under it becomes a vested right, protected under the due process clause of the constitution against a subsequent change in the statute adding new legal requirements of execution of wills which would invalidate such a will. By parity of reasoning, when one executes a will which is invalid for failure to observe and follow the legal requirements at the time of its execution then upon his death he should be regarded and declared as having died intestate, and his heirs will then inherit by intestate succession, and no subsequent law with more liberal requirements or which dispenses with such requirements as to execution should be allowed to validate a defective will and thereby divest the heirs of their vested rights in the

estate by intestate succession. The general rule is that the Legislature can not validate void wills (57 Am. Jur., Wills, Sec. 231, pp. 192-193). In view of the foregoing, the order appealed from is reversed, and Exhibit "A" is denied probate. With costs. Paras, C.J., Pablo, Bengzon, Padilla, Reyes, A., Jugo, Bautista Angelo, Labrador, Concepcion and Rey

EN BANC G.R. No. L-23678 June 6, 1967

TESTATE ESTATE OF AMOS G. BELLIS, deceased. PEOPLE'S BANK and TRUST COMPANY, executor. MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS, oppositors-appellants, vs. EDWARD A. BELLIS, ET AL., heirs-appellees. Vicente R. Macasaet and Jose D. Villena for oppositors appellants. Paredes, Poblador, Cruz and Nazareno for heirs-appellees E. A. Bellis, et al. Quijano and Arroyo for heirs-appellees W. S. Bellis, et al. J. R. Balonkita for appellee People's Bank & Trust Company. Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman. BENGZON, J.P., J.: This is a direct appeal to Us, upon a question purely of law, from an order of the Court of First Instance of Manila dated April 30, 1964, approving the project of partition filed by the executor in Civil Case No. 37089 therein.
1wph1.t

The facts of the case are as follows: Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the United States." By his first wife, Mary E. Mallen, whom he divorced, he had five legitimate children: Edward A. Bellis, George Bellis (who pre-deceased him in infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman; by his second wife, Violet Kennedy, who survived him, he had three legitimate children: Edwin G. Bellis, Walter S. Bellis and Dorothy Bellis; and finally, he had three illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis. On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that after all taxes, obligations, and expenses of administration are paid for, his distributable estate should be divided, in trust, in the following order and manner: (a) $240,000.00 to his first wife, Mary E. Mallen; (b) P120,000.00 to his three illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis, Miriam Palma Bellis, or P40,000.00 each and (c) after the foregoing two items have been satisfied, the remainder shall go to his seven surviving children by his first and second wives, namely: Edward A. Bellis, Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis, and Dorothy E. Bellis, in equal shares.
1wph1.t

Subsequently, or on July 8, 1958, Amos G. Bellis died a resident of San Antonio, Texas, U.S.A. His will was admitted to probate in the Court of First Instance of Manila on September 15, 1958. The People's Bank and Trust Company, as executor of the will, paid all the bequests therein including the amount of $240,000.00 in the form of shares of stock to Mary E. Mallen and to the three (3) illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis, various amounts totalling P40,000.00 each in satisfaction of their respective legacies, or a total of P120,000.00, which it released from time to time according as the lower court

approved and allowed the various motions or petitions filed by the latter three requesting partial advances on account of their respective legacies. On January 8, 1964, preparatory to closing its administration, the executor submitted and filed its "Executor's Final Account, Report of Administration and Project of Partition" wherein it reported, inter alia, the satisfaction of the legacy of Mary E. Mallen by the delivery to her of shares of stock amounting to $240,000.00, and the legacies of Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis in the amount of P40,000.00 each or a total of P120,000.00. In the project of partition, the executor pursuant to the "Twelfth" clause of the testator's Last Will and Testament divided the residuary estate into seven equal portions for the benefit of the testator's seven legitimate children by his first and second marriages. On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective oppositions to the project of partition on the ground that they were deprived of their legitimes as illegitimate children and, therefore, compulsory heirs of the deceased. Amos Bellis, Jr. interposed no opposition despite notice to him, proof of service of which is evidenced by the registry receipt submitted on April 27, 1964 by the executor.1 After the parties filed their respective memoranda and other pertinent pleadings, the lower court, on April 30, 1964, issued an order overruling the oppositions and approving the executor's final account, report and administration and project of partition. Relying upon Art. 16 of the Civil Code, it applied the national law of the decedent, which in this case is Texas law, which did not provide for legitimes. Their respective motions for reconsideration having been denied by the lower court on June 11, 1964, oppositors-appellants appealed to this Court to raise the issue of which law must apply Texas law or Philippine law. In this regard, the parties do not submit the case on, nor even discuss, the doctrine of renvoi, applied by this Court in Aznar v. Christensen Garcia, L-16749, January 31, 1963. Said doctrine is usually pertinent where the decedent is a national of one country, and a domicile of another. In the present case, it is not disputed that the decedent was both a national of Texas and a domicile thereof at the time of his death.2 So that even assuming Texas has a conflict of law rule providing that the domiciliary system (law of the domicile) should govern, the same would not result in a reference back (renvoi) to Philippine law, but would still refer to Texas law. Nonetheless, if Texas has a conflicts rule adopting the situs theory (lex rei sitae) calling for the application of the law of the place where the properties are situated, renvoi would arise, since the properties here involved are found in the Philippines. In the absence, however, of proof as to the conflict of law rule of Texas, it should not be presumed different from ours.3Appellants' position is therefore not rested on the doctrine of renvoi. As stated, they never invoked nor even mentioned it in their arguments. Rather, they argue that their case falls under the circumstances mentioned in the third paragraph of Article 17 in relation to Article 16 of the Civil Code. Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the decedent, in intestate or testamentary successions, with regard to four items: (a) the order of succession; (b) the amount of successional rights; (e) the intrinsic validity of the provisions of the will; and (d) the capacity to succeed. They provide that

ART. 16. Real property as well as personal property is subject to the law of the country where it is situated. However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may he the nature of the property and regardless of the country wherein said property may be found. ART. 1039. Capacity to succeed is governed by the law of the nation of the decedent. Appellants would however counter that Art. 17, paragraph three, of the Civil Code, stating that Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. prevails as the exception to Art. 16, par. 2 of the Civil Code afore-quoted. This is not correct. Precisely, Congressdeleted the phrase, "notwithstanding the provisions of this and the next preceding article" when they incorporated Art. 11 of the old Civil Code as Art. 17 of the new Civil Code, while reproducing without substantial change the second paragraph of Art. 10 of the old Civil Code as Art. 16 in the new. It must have been their purpose to make the second paragraph of Art. 16 a specific provision in itself which must be applied in testate and intestate succession. As further indication of this legislative intent, Congress added a new provision, under Art. 1039, which decrees that capacity to succeed is to be governed by the national law of the decedent. It is therefore evident that whatever public policy or good customs may be involved in our System of legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For it has specifically chosen to leave, inter alia, the amount of successional rights, to the decedent's national law. Specific provisions must prevail over general ones. Appellants would also point out that the decedent executed two wills one to govern his Texas estate and the other his Philippine estate arguing from this that he intended Philippine law to govern his Philippine estate. Assuming that such was the decedent's intention in executing a separate Philippine will, it would not alter the law, for as this Court ruled in Miciano v. Brimo, 50 Phil. 867, 870, a provision in a foreigner's will to the effect that his properties shall be distributed in accordance with Philippine law and not with his national law, is illegal and void, for his national law cannot be ignored in regard to those matters that Article 10 now Article 16 of the Civil Code states said national law should govern. The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and that under the laws of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic validity of the provision of the will and the amount of successional rights are to be determined under Texas law, the Philippine law on legitimes cannot be applied to the testacy of Amos G. Bellis.

Wherefore, the order of the probate court is hereby affirmed in toto, with costs against appellants. So ordered.

EN BANC G.R. No. L-16749 January 31, 1963

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 about twenty-eight years ago, and who is now residing at No. 665 Rodger 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 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. Opposition to the approval of the project of partition was filed by Helen Christensen Garcia, insofar as it deprives her (Helen) of her legitime as an acknowledged natural child, she having been declared by Us in G.R. Nos. L-11483-84 an acknowledged natural child of the deceased Edward E. 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 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 internal law of California alone, but the entire law thereof because several foreign elements are involved, that the forum is the Philippines and 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 declared an acknowledged natural child of the decedent, she is deemed for all purposes legitimate from the time of her birth. The court below ruled that as Edward E. Christensen was a citizen of the United States and of the State of California at the time of his death, the successional rights and intrinsic validity of the provisions in his will are to be 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 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 reconsideration, but these were denied. Hence, this appeal. The most important assignments of error are as follows: I THE LOWER COURT ERRED IN IGNORING THE DECISION OF THE HONORABLE SUPREME COURT THAT HELEN IS THE ACKNOWLEDGED NATURAL CHILD OF EDWARD E. CHRISTENSEN AND, CONSEQUENTLY, IN DEPRIVING HER OF HER JUST SHARE IN THE INHERITANCE. II THE LOWER COURT ERRED IN ENTIRELY IGNORING AND/OR FAILING TO RECOGNIZE THE EXISTENCE OF SEVERAL FACTORS, ELEMENTS AND CIRCUMSTANCES CALLING FOR THE APPLICATION OF INTERNAL LAW.

III THE LOWER COURT ERRED IN FAILING TO RECOGNIZE THAT UNDER INTERNATIONAL LAW, PARTICULARLY UNDER THE RENVOI DOCTRINE, THE INTRINSIC VALIDITY OF THE TESTAMENTARY DISPOSITION OF THE DISTRIBUTION OF THE ESTATE OF THE DECEASED EDWARD E. CHRISTENSEN SHOULD BE GOVERNED BY THE LAWS OF THE PHILIPPINES. IV THE LOWER COURT ERRED IN NOT DECLARING THAT THE SCHEDULE OF 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. 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 "CCDaney"; Exhs. "MM", "MM-l", "MM-2-Daney" and p. 473, t.s.n., July 21, 1953.)

1wph1.t

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 therenvoi, 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 renvoidoctrine, 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 renvoiis 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 therenvoi 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, 19171918, 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 and that the law to the contrary in the Philippines is the provision in said 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 law on conflict of laws in the California Civil Code, i.e., Article 946, which authorizes the reference or return of the question to the law of the testator's domicile. The conflict of laws rule in California, Article 946, Civil 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 California; such action would leave the issue incapable of determination 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 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. 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 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 of which the subject is a citizen, a law similar to or identical with Art. 946 of the California Civil Code. 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 will depriving his acknowledged natural child, the appellant, should be governed by the Philippine Law, the domicile, pursuant to Art. 946 of the Civil Code of California, not by the internal law of California.. WHEREFORE, the decision appealed from is hereby reversed and the case returned to the lower court with instructions that the partition be made as the Philippine law on succession provides. Judgment reversed, with costs against appellees. Padilla, Bautista Angelo, Concepcion, Reyes, Barrera, Paredes, Dizon, Regala and Makalintal, JJ., concur. Bengzon, C.J., took no part.

G.R. No. L-22595

November 1, 1927

Testate Estate of Joseph G. Brimo, JUAN MICIANO, administrator, petitioner-appellee, vs. ANDRE BRIMO, opponent-appellant. Ross, Lawrence and Selph for appellant. Camus and Delgado for appellee.

ROMUALDEZ, J.: The partition of the estate left by the deceased Joseph G. Brimo is in question in this case. The judicial administrator of this estate filed a scheme of partition. Andre Brimo, one of the brothers of the deceased, opposed it. The court, however, approved it. The errors which the oppositor-appellant assigns are: (1) The approval of said scheme of partition; (2) denial of his participation in the inheritance; (3) the denial of the motion for reconsideration of the order approving the partition; (4) the approval of the purchase made by the Pietro Lana of the deceased's business and the deed of transfer of said business; and (5) the declaration that the Turkish laws are impertinent to this cause, and the failure not to postpone the approval of the scheme of partition and the delivery of the deceased's business to Pietro Lanza until the receipt of the depositions requested in reference to the Turkish laws. The appellant's opposition is based on the fact that the partition in question puts into effect the provisions of Joseph G. Brimo's will which are not in accordance with the laws of his Turkish nationality, for which reason they are void as being in violation or article 10 of the Civil Code which, among other things, provides the following: Nevertheless, legal and testamentary successions, in respect to the order of succession as well as to the amount of the successional rights and the intrinsic validity of their provisions, shall be regulated by the national law of the person whose succession is in question, whatever may be the nature of the property or the country in which it may be situated. But the fact is that the oppositor did not prove that said testimentary dispositions are not in accordance with the Turkish laws, inasmuch as he did not present any evidence showing what the Turkish laws are on the matter, and in the absence of evidence on such laws, they are presumed to be the same as those of the Philippines. (Lim and Lim vs. Collector of Customs, 36 Phil., 472.) It has not been proved in these proceedings what the Turkish laws are. He, himself, acknowledges it when he desires to be given an opportunity to present evidence on this point; so much so that he assigns as an error of the court in not having deferred the approval

of the scheme of partition until the receipt of certain testimony requested regarding the Turkish laws on the matter. The refusal to give the oppositor another opportunity to prove such laws does not constitute an error. It is discretionary with the trial court, and, taking into consideration that the oppositor was granted ample opportunity to introduce competent evidence, we find no abuse of discretion on the part of the court in this particular. There is, therefore, no evidence in the record that the national law of the testator Joseph G. Brimo was violated in the testamentary dispositions in question which, not being contrary to our laws in force, must be complied with and executed.
lawphil.net

Therefore, the approval of the scheme of partition in this respect was not erroneous. In regard to the first assignment of error which deals with the exclusion of the herein appellant as a legatee, inasmuch as he is one of the persons designated as such in will, it must be taken into consideration that such exclusion is based on the last part of the second clause of the will, which says: Second. I like desire to state that although by law, I am a Turkish citizen, this citizenship having been conferred upon me by conquest and not by free choice, nor by nationality and, on the other hand, having resided for a considerable length of time in the Philippine Islands where I succeeded in acquiring all of the property that I now possess, it is my wish that the distribution of my property and everything in connection with this, my will, be made and disposed of in accordance with the laws in force in the Philippine islands, requesting all of my relatives to respect this wish, otherwise, I annul and cancel beforehand whatever disposition found in this will favorable to the person or persons who fail to comply with this request. The institution of legatees in this will is conditional, and the condition is that the instituted legatees must respect the testator's will to distribute his property, not in accordance with the laws of his nationality, but in accordance with the laws of the Philippines. If this condition as it is expressed were legal and valid, any legatee who fails to comply with it, as the herein oppositor who, by his attitude in these proceedings has not respected the will of the testator, as expressed, is prevented from receiving his legacy. The fact is, however, that the said condition is void, being contrary to law, for article 792 of the civil Code provides the following: Impossible conditions and those contrary to law or good morals shall be considered as not imposed and shall not prejudice the heir or legatee in any manner whatsoever, even should the testator otherwise provide. And said condition is contrary to law because it expressly ignores the testator's national law when, according to article 10 of the civil Code above quoted, such national law of the testator is the one to govern his testamentary dispositions. Said condition then, in the light of the legal provisions above cited, is considered unwritten, and the institution of legatees in said will is unconditional and consequently valid and effective even as to the herein oppositor.

It results from all this that the second clause of the will regarding the law which shall govern it, and to the condition imposed upon the legatees, is null and void, being contrary to law. All of the remaining clauses of said will with all their dispositions and requests are perfectly valid and effective it not appearing that said clauses are contrary to the testator's national law. Therefore, the orders appealed from are modified and it is directed that the distribution of this estate be made in such a manner as to include the herein appellant Andre Brimo as one of the legatees, and the scheme of partition submitted by the judicial administrator is approved in all other respects, without any pronouncement as to costs. So ordered. Street, Malcolm, Avancea, Villamor and Ostrand, JJ., concur.

FIRST DIVISION

G.R. No. 108581 December 8, 1999 LOURDES L. DOROTHEO, petitioner, vs. COURT OF APPEALS, NILDA D. QUINTANA, for Herself and as Attorney-in-Fact of VICENTE DOROTHEO and JOSE DOROTHEO, respondents.

YNARES-SANTIAGO, J.: May a last will and testament admitted to probate but declared intrinsically void in an order that has become final and executory still be given effect? This is the issue that arose from the following antecedents: Private respondents were the legitimate children of Alejandro Dorotheo and Aniceta Reyes. The latter died in 1969 without her estate being settled. Alejandro died thereafter. Sometime in 1977, after Alejandro's death, petitioner, who claims to have taken care of Alejandro before he died, filed a special proceeding for the probate of the latter's last will and testament. In 1981, the court issued an order admitting Alejandro's will to probate. Private respondents did not appeal from said order. In 1983, they filed a "Motion To Declare The Will Intrinsically Void." The trial court granted the motion and issued an order, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, Order is hereby issued declaring Lourdes Legaspi not the wife of the late Alejandro Dorotheo, the provisions of the last will and testament of Alejandro Dorotheo as intrinsically void, and declaring the oppositors Vicente Dorotheo, Jose Dorotheo and Nilda Dorotheo Quintana as the only heirs of the late spouses Alejandro Dorotheo and Aniceta Reyes, whose respective estates shall be liquidated and distributed according to the laws on intestacy upon payment of estate and other taxes due to the government.1

Petitioner moved for reconsideration arguing that she is entitled to some compensation since she took care of Alejandro prior to his death although she admitted that they were not married to each other. Upon denial of her motion for reconsideration, petitioner appealed to the Court of Appeals, but the same was dismissed for failure to file appellant's brief within the extended period granted. 2 This dismissal became final and executory on February 3, 1989 and a corresponding entry of judgment was forthwith issued by the Court of Appeals on May 16, 1989. A writ of execution was issued by the lower court to implement the final and executory Order. Consequently, private respondents filed several motions including a motion to compel petitioner to surrender to them the Transfer Certificates of Titles (TCT) covering the properties of the late Alejandro. When petitioner refused to surrender the TCT's, private respondents filed a motion for cancellation of said titles and for issuance of new titles in their names. Petitioner opposed the motion.

An Order was issued on November 29, 1990 by Judge Zain B. Angas setting aside the final and executory Order dated January 30, 1986, as well as the Order directing the issuance of the writ of execution, on the ground that the order was merely "interlocutory", hence not final in character. The court added that the dispositive portion of the said Order even directs the distribution of the estate of the deceased spouses. Private respondents filed a motion for reconsideration which was denied in an Order dated February 1, 1991. Thus, private respondents filed a petition before the Court of Appeals, which nullified the two assailed Orders dated November 29, 1990 and February 1, 1991. Aggrieved, petitioner instituted a petition for review arguing that the case filed by private respondents before the Court of Appeals was a petition under Rule 65 on the ground of grave abuse of discretion or lack of jurisdiction. Petitioner contends that in issuing the two assailed orders, Judge Angas cannot be said to have no jurisdiction because he was particularly designated to hear the case. Petitioner likewise assails the Order of the Court of Appeals upholding the validity of the January 30, 1986 Order which declared the intrinsic invalidity of Alejandro's will that was earlier admitted to probate. Petitioner also filed a motion to reinstate her as executrix of the estate of the late Alejandro and to maintain thestatus quo or lease of the premises thereon to third parties. 3 Private respondents opposed the motion on the ground that petitioner has no interest in the estate since she is not the lawful wife of the late Alejandro. The petition is without merit. A final and executory decision or order can no longer be disturbed or reopened no matter how erroneous it may be. In setting aside the January 30, 1986 Order that has attained finality, the trial court in effect nullified the entry of judgment made by the Court of Appeals. It is well settled that a lower court cannot reverse or set aside decisions or orders of a superior court, for to do so would be to negate the hierarchy of courts and nullify the essence of review. It has been ruled that a final judgment on probated will, albeit erroneous, is binding on the whole world. 4 It has been consistently held that if no appeal is taken in due time from a judgment or order of the trial court, the same attains finality by mere lapse of time. Thus, the order allowing the will became final and the question determined by the court in such order can no longer be raised anew, either in the same proceedings or in a different motion. The matters of due execution of the will and the capacity of the testator acquired the character ofres judicata and cannot again be brought into question, all juridical questions in connection therewith being for once and forever closed. 5 Such final order makes the will conclusive against the whole world as to its extrinsic validity and due execution. 6 It should be noted that probate proceedings deals generally with the extrinsic validity of the will sought to be probated, 7 particularly on three aspects:
whether the will submitted is indeed, the decedent's last will and testament;
n

compliance with the prescribed formalities for the execution of wills;

n n

the testamentary capacity of the testator; 8

n and the due execution of the last will and testament. 9

Under the Civil Code, due execution includes a determination of whether the testator was of sound and disposing mind at the time of its execution, that he had freely executed the will and was not acting under duress, fraud, menace or undue influence and that the will is genuine and not a forgery, 10 that he was of the proper testamentary age and that he is a person not expressly prohibited by law from making a will. 11 The intrinsic validity is another matter and questions regarding the same may still be raised even after the will has been authenticated. 12 Thus, it does not necessarily follow that an extrinsically valid last will and testament is always intrinsically valid. Even if the will was validly executed, if the testator provides for dispositions that deprives or impairs the lawful heirs of their legitime or rightful inheritance according to the laws on succession, 13 the unlawful provisions/dispositions thereof cannot be given effect. This is specially so when the courts had already determined in a final and executory decision that the will is intrinsically void. Such determination having attained that character of finality is binding on this Court which will no longer be disturbed. Not that this Court finds the will to be intrinsically valid, but that a final and executory decision of which the party had the opportunity to challenge before the higher tribunals must stand and should no longer be reevaluated. Failure to avail of the remedies provided by law constitutes waiver. And if the party does not avail of other remedies despite its belief that it was aggrieved by a decision or court action, then it is deemed to have fully agreed and is satisfied with the decision or order. As early as 1918, it has been declared that public policy and sound practice demand that, at the risk of occasional errors, judgments of courts must at some point of time fixed by law 14 become final otherwise there will be no end to litigation. Interes rei publicae ut finis sit litium the very object of which the courts were constituted was to put an end to controversies. 15 To fulfill this purpose and to do so speedily, certain time limits, more or less arbitrary, have to be set up to spur on the slothful. 16 The only instance where a party interested in a probate proceeding may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence, 17 which circumstances do not concur herein. Petitioner was privy to the suit calling for the declaration of the intrinsic invalidity of the will, as she precisely appealed from an unfavorable order therefrom. Although the final and executory Order of January 30, 1986 wherein private respondents were declared as the only heirs do not bind those who are not parties thereto such as the alleged illegitimate son of the testator, the same constitutes res judicata with respect to those who were parties to the probate proceedings. Petitioner cannot again raise those matters anew for relitigation otherwise that would amount to forum-shopping. It should be remembered that forum shopping also occurs when the same issue had already been resolved adversely by some other court. 18 It is clear from the executory order that the estates of Alejandro and his spouse should be distributed according to the laws of intestate succession. Petitioner posits that the January 30, 1986 Order is merely interlocutory, hence it can still be set aside by the trial court. In support thereof, petitioner argues that "an order merely declaring who are heirs and the shares to which set of heirs is entitled cannot be the basis of execution to require delivery of shares from one person to another particularly when no project of partition has been filed." 19 The trial court declared in the January 30, 1986 Order that petitioner is not the legal wife of Alejandro, whose only heirs are his three legitimate children (petitioners herein), and at the same time it nullified the will. But it should be noted that in the same Order, the trial court also said that the estate of the late spouses be distributed according to the laws of intestacy. Accordingly, it has no option but to implement that order of intestate distribution and not to reopen and again re-examine the intrinsic provisions of the same will.

It can be clearly inferred from Article 960 of the Civil Code, on the law of successional rights that testacy is preferred to intestacy. 20 But before there could be testate distribution, the will must pass the scrutinizing test and safeguards provided by law considering that the deceased testator is no longer available to prove the voluntariness of his actions, aside from the fact that the transfer of the estate is usually onerous in nature and that no one is presumed to give Nemo praesumitur donare. 21 No intestate distribution of the estate can be done until and unless the will had failed to pass both its extrinsic and intrinsic validity. If the will is extrinsically void, the rules of intestacy apply regardless of the intrinsic validity thereof. If it is extrinsically valid, the next test is to determine its intrinsic validity that is whether the provisions of the will are valid according to the laws of succession. In this case, the court had ruled that the will of Alejandro was extrinsically valid but the intrinsic provisions thereof were void. Thus, the rules of intestacy apply as correctly held by the trial court. Furthermore, Alejandro's disposition in his will of the alleged share in the conjugal properties of his late spouse, whom he described as his "only beloved wife", is not a valid reason to reverse a final and executory order. Testamentary dispositions of properties not belonging exclusively to the testator or properties which are part of the conjugal regime cannot be given effect. Matters with respect to who owns the properties that were disposed of by Alejandro in the void will may still be properly ventilated and determined in the intestate proceedings for the settlement of his and that of his late spouse's estate. Petitioner's motion for appointment as administratrix is rendered moot considering that she was not married to the late Alejandro and, therefore, is not an heir. WHEREFORE, the petition is DENIED and the decision appealed from is AFFIRMED. SO ORDERED. Davide, Jr., C.J., Puno, Kapunan and Pardo, JJ., concur.

EN BANC G.R. No. L-6801 March 14, 1912

JULIANA BAGTAS, plaintiffs-appellee, vs. ISIDRO PAGUIO, ET AL., defendants-appellants. Salas and Kalaw for appellants. Jose Santiago for appellee. TRENT, J.: This is an appeal from an order of the Court of First Instance of the Province of Bataan, admitting to probate a document which was offered as the last will and testament of Pioquinto Paguio y Pizarro. The will purports to have been executed in the pueblo of Pilar, Province of Bataan, on the 19th day of April, 1908. The testator died on the 28th of September, 1909, a year and five months following the date of the execution of the will. The will was propounded by the executrix, Juliana Bagtas, widow of the decedent, and the opponents are a son and several grandchildren by a former marriage, the latter being the children of a deceased daughter. The basis of the opposition to the probation of the will is that the same was not executed according to the formalities and requirements of the law touching wills, and further that the testator was not in the full of enjoyment and use of his mental faculties and was without the mental capacity necessary to execute a valid will. The record shows that the testator, Pioquinto Paguio, for some fourteen of fifteen years prior to the time of his death suffered from a paralysis of the left side of his body; that a few years prior to his death his hearing became impaired and that he lost the power of speech. Owing to the paralysis of certain muscles his head fell to one side, and saliva ran from his mouth. He retained the use of his right hand, however, and was able to write fairly well. Through the medium of signs he was able to indicate his wishes to his wife and to other members of his family. At the time of the execution of the will there were present the four testamentary witnesses, Agustin Paguio, Anacleto Paguio, and Pedro Paguio, and attorney, Seor Marco, and one Florentino Ramos. Anacleto Paguio and the attorney have since died, and consequently their testimony was not available upon the trial of the case in the lower court. The other three testamentary witnesses and the witness Florentino Ramos testified as to the manner in which the will was executed. According to the uncontroverted testimony of these witnesses the will was executed in the following manner: Pioquinto Paguio, the testator, wrote out on pieces of paper notes and items relating to the disposition of his property, and these notes were in turn delivered to Seor Marco, who transcribed them and put them in form. The witnesses testify that the pieces of paper upon which the notes were written are delivered to attorney by the testator; that the attorney read them to the testator asking if they were his testamentary dispositions; that the testator assented each time with an affirmative movement of his head; that after the will as a whole had been thus written by the attorney, it was read in a loud voice in the presence of the

testator and the witnesses; that Seor Marco gave the document to the testator; that the latter, after looking over it, signed it in the presence of the four subscribing witnesses; and that they in turn signed it in the presence of the testator and each other. These are the facts of record with reference to the execution of the will and we are in perfect accord with the judgment of the lower court that the formalities of the Code of Civil Procedure have been fully complied with. This brings us now to a consideration of appellants' second assignment of error, viz, the testator's alleged mental incapacity at the time of the execution of the will. Upon this point considerable evidence was adduced at the trial. One of the attesting witnesses testified that at the time of the execution of the will the testator was in his right mind, and that although he was seriously ill, he indicated by movements of his head what his wishes were. Another of the attesting witnesses stated that he was not able to say whether decedent had the full use of his mental faculties or not, because he had been ill for some years, and that he (the witnesses) was not a physician. The other subscribing witness, Pedro Paguio, testified in the lower court as a witness for the opponents. He was unable to state whether or not the will was the wish of the testator. The only reasons he gave for his statement were the infirmity and advanced age of the testator and the fact that he was unable to speak. The witness stated that the testator signed the will, and he verified his own signature as a subscribing witness. Florentino Ramos, although not an attesting witness, stated that he was present when the will was executed and his testimony was cumulative in corroboration of the manner in which the will was executed and as to the fact that the testator signed the will. This witness also stated that he had frequently transacted matters of business for the decedent and had written letters and made inventories of his property at his request, and that immediately before and after the execution of the will he had performed offices of his character. He stated that the decedent was able to communicate his thoughts by writing. The testimony of this witness clearly indicates the presence of mental capacity on the part of the testator. Among other witnesses for the opponents were two physician, Doctor Basa and Doctor Viado. Doctor Basa testified that he had attended the testator some four or five years prior to his death and that the latter had suffered from a cerebral congestion from which the paralysis resulted. The following question was propounded to Doctor Basa: Q. Referring to mental condition in which you found him the last time you attended him, do you think he was in his right mind? A. I can not say exactly whether he was in his right mind, but I noted some mental disorder, because when I spoke to him he did not answer me. Doctor Basa testified at more length, but the substance of his testimony is that the testator had suffered a paralysis and that he had noticed some mental disorder. He does not say that the testator was not in his right mind at the time of the execution of the will, nor does he give it at his opinion that he was without the necessary mental capacity to make a valid will. He did not state in what way this mental disorder had manifested itself other than that he had noticed that the testator did not reply to him on one occasion when he visited him. Doctor Viado, the other physician, have never seen the testator, but his answer was in reply to a hypothetical question as to what be the mental condition of a person who was 79 years old and who had suffered from a malady such as the testator was supposed to have had according to the testimony of Doctor Basa, whose testimony Doctor Viado had heard. He

replied and discussed at some length the symptoms and consequences of the decease from which the testator had suffered; he read in support of his statements from a work by a German Physician, Dr. Herman Eichost. In answer, however, to a direct question, he stated that he would be unable to certify to the mental condition of a person who was suffering from such a disease. We do not think that the testimony of these two physicians in any way strengthens the contention of the appellants. Their testimony only confirms the fact that the testator had been for a number of years prior to his death afflicted with paralysis, in consequence of which his physician and mental strength was greatly impaired. Neither of them attempted to state what was the mental condition of the testator at the time he executed the will in question. There can be no doubt that the testator's infirmities were of a very serious character, and it is quite evident that his mind was not as active as it had been in the earlier years of his life. However, we can not include from this that he wanting in the necessary mental capacity to dispose of his property by will. The courts have been called upon frequently to nullify wills executed under such circumstances, but the weight of the authority is in support if the principle that it is only when those seeking to overthrow the will have clearly established the charge of mental incapacity that the courts will intervene to set aside a testamentary document of this character. In the case of Bugnao vs. Ubag (14 Phil. Rep., 163), the question of testamentary capacity was discussed by this court. The numerous citations there given from the decisions of the United States courts are especially applicable to the case at bar and have our approval. In this jurisdiction the presumption of law is in favor of the mental capacity of the testator and the burden is upon the contestants of the will to prove the lack of testamentary capacity. (In the matter of the will of Cabigting, 14 Phil. Rep., 463; in the matter of the will of Butalid, 10 Phil. Rep., 27; Hernaez vs. Hernaez, 1 Phil. Rep., 689.) The rule of law relating to the presumption of mental soundness is well established, and the testator in the case at bar never having been adjudged insane by a court of competent jurisdiction, this presumption continues, and it is therefore incumbent upon the opponents to overcome this legal presumption by proper evidence. This we think they have failed to do. There are many cases and authorities which we might cite to show that the courts have repeatedly held that mere weakness of mind and body, induced by age and disease do not render a person incapable of making a will. The law does not require that a person shall continue in the full enjoyment and use of his pristine physical and mental powers in order to execute a valid will. If such were the legal standard, few indeed would be the number of wills that could meet such exacting requirements. The authorities, both medical and legal, are universal in statement that the question of mental capacity is one of degree, and that there are many gradations from the highest degree of mental soundness to the lowest conditions of diseased mentality which are denominated as insanity and idiocy. The right to dispose of property by testamentary disposition is as sacred as any other right which a person may exercise and this right should not be nullified unless mental incapacity is established in a positive and conclusive manner. In discussing the question of testamentary capacity, it is stated in volume 28, 70, of the American and English Encyclopedia of Law, that Contrary to the very prevalent lay impression, perfect soundness of mind is not essential to testamentary capacity. A testator may be afflicted with a variety of mental weaknesses, disorders, or peculiarities and still be capable in law of executing a valid will. (See the numerous cases there cited in support of this statement.)

The rule relating to testamentary capacity is stated in Buswell on Insanity, section 365, and quoted with approval inCampbell vs. Campbell (130 Ill., 466), as follows: To constitute a sound and disposing mind, it is not necessary that the mind shall be wholly unbroken, unimpaired, or unshattered by disease or otherwise, or that the testator should be in the full possession of his reasoning faculties. In note, 1 Jarman on Wills, 38, the rule is thus stated: The question is not so much, that was the degree of memory possessed by the testator, as, had he a disposing memory? Was he able to remember the property he was about to bequeath, the manner of disturbing it, and the objects of his bounty? In a word, were his mind and memory sufficiently sound to enable him to know and understand the business in which he was engaged at the time when he executed his will. (See authorities there cited.) In Wilson vs. Mitchell (101 Penn., 495), the following facts appeared upon the trial of the case: The testator died at the age of nearly 102 years. In his early years he was an intelligent and well informed man. About seven years prior to his death he suffered a paralytic stroke and from that time his mind and memory were mush enfeebled. He became very dull of hearing and in consequence of the shrinking of his brain he was affected with senile cataract causing total blindness. He became filthy and obscene in his habits, although formerly he was observant of the properties of life. The court, in commenting upon the case, said: Neither age, nor sickness, nor extreme distress, nor debility of body will affect the capacity to make a will, if sufficient intelligence remains. The failure of memory is not sufficient to create the incapacity, unless it be total, or extend to his immediate family or property. . . . xxx xxx xxx

Dougal (the testator) had lived over one hundred years before he made the will, and his physical and mental weakness and defective memory were in striking contrast with their strength in the meridian of his life. He was blind; not deaf, but hearing impaired; his mind acted slowly, he was forgetful or recent events, especially of names, and repeated questions in conversation; and sometimes, when aroused for sleep or slumber, would seem bewildered. It is not singular that some of those who had known him when he was remarkable for vigor and intelligence, are of the opinion that his reason was so far gone that he was incapable of making a will, although they never heard him utter an irrational expression. In the above case the will was sustained. In the case at bar we might draw the same contrast as was pictured by the court in the case just quoted. The striking change in the physical and mental vigor of the testator during the last years of his life may have led some of those who knew him in his earlier days to entertain doubts as to his mental capacity to make a will, yet we think that the statements of the witnesses to the execution of the will and statements of the conduct of the testator at that time all indicate that he unquestionably had mental capacity and that he exercised it on this occasion. At the time of the execution of the will it does not appear that his conduct was irrational in any particular. He seems to have comprehended clearly what the nature of the business was in which he was engaged. The evidence show that the writing and execution of the will occupied a period several hours and

that the testator was present during all this time, taking an active part in all the proceedings. Again, the will in the case at bar is perfectly reasonable and its dispositions are those of a rational person. For the reasons above stated, the order probating the will should be and the same is hereby affirmed, with costs of this instance against the appellants. Arellano, C.J., Torres, Mapa, Johnson, Carson and Moreland, JJ., concur.

EN BANC G.R. No. L-28946 January 16, 1929

In re estate of Piraso, deceased. SIXTO ACOP, petitioner-appellant, vs. SALMING PIRASO, ET AL., opponents-appellees. Gibbs and McDonough and Roman Ozaeta for appellant. Adolfo A. Scheerer for appellees. ROMUALDEZ, J.: This appeal was taken from the judgment of the Court of First Instance of Benguet, denying the probate of the instrument Exhibit A, as the last will and testament of the deceased Piraso. The proponent-appellant assigns the following as alleged errors of the lower court: 1. In holding that in order to be valid the will in question should have been drawn up in the Ilocano dialect. 2. In not holding that the testator Piraso did not know the Ilocano dialect well enough to understand a will drawn up in said dialect. 3. In refusing to admit the will in question to probate. The fundamental errors assigned refer chiefly to the part of the judgment which reads as follows: The evidence shows that Piraso knew how to speak the Ilocano dialect, although imperfectly, and could make himself understood in that dialect, and the court is of the opinion that his will should have been written in that dialect. Such statements were not unnecessary for the decision of the case, once it has been proved without contradiction, that the said deceased Piraso did not know English, in which language the instrument Exhibit A, alleged to be his will, is drawn. Section 628 of the Code of Civil Procedure, strictly provides that: "No will, except as provides in the preceding section" (as to wills executed by a Spaniard or a resident of the Philippine Islands, before the present Code of Civil Procedure went into effect), "shall be valid to pass any estate, real or personal, nor charge or affect the same, unless it be written in the language or dialect known by the testator," etc. (Emphasis supplied.) Nor can the presumption in favor of the will established by this court in Abangan vs. Abangan (40 Phil., 476), to the effect that the testator is presumed to know the dialect of the locality where he resides, unless there is proof to the contrary, even he invoked in support of the probate of said document Exhibit A, as a will, because, in the instant case, not only is it not proven that English is the language of the City of Baguio where the deceased Piraso lived and where Exhibit A was drawn, but that the record contains positive proof that

said Piraso knew no other language than the Igorrote dialect, with a smattering of Ilocano; that is, he did not know the English language in which Exhibit A is written. So that even if such a presumption could have been raised in this case it would have been wholly contradicted and destroyed. We consider the other question raised in this appeal needless and immaterial to the adjudication of this case, it having been, as it was, proven, that the instrument in question could not be probated as the last will and testament of the deceased Piraso, having been written in the English language with which the latter was unacquainted. Such a result based upon solidly established facts would be the same whether or not it be technically held that said will, in order to be valid, must be written in the Ilocano dialect; whether or not the Igorrote or Inibaloi dialect is a cultivated language and used as a means of communication in writing, and whether or not the testator Piraso knew the Ilocano dialect well enough to understand a will written in said dialect. The fact is, we repeat, that it is quite certain that the instrument Exhibit A was written in English which the supposed testator Piraso did not know, and this is sufficient to invalidate said will according to the clear and positive provisions of the law, and inevitably prevents its probate. The judgment appealed from is affirmed, with the costs of this instance against the appellant. So ordered. Avancea, C. J., Malcolm, Villamor, Ostrand and Villa-Real, JJ., concur.

EN BANC G.R. No. 15566 September 14, 1921

EUTIQUIA AVERA, petitioner-appellee, vs. MARINO GARCIA, and JUAN RODRIGUEZ, as guardian of the minors Cesar Garcia and Jose Garcia,objectors-appellants. Dionisio Villanueva for appellants. Marcelino Lontok for appellee. STREET, J.: In proceedings in the court below, instituted by Eutiquia Avera for probate of the will of one Esteban Garcia, contest was made by Marino Garcia and Juan Rodriguez, the latter in the capacity of guardian for the minors Jose Garcia and Cesar Garcia. Upon the date appointed for the hearing, the proponent of the will introduced one of the three attesting witnesses who testified with details not necessary to be here specified that the will was executed with all necessary external formalities, and that the testator was at the time in full possession of disposing faculties. Upon the latter point the witness was corroborated by the person who wrote the will at the request of the testator. Two of the attesting witnesses were not introduced, nor was their absence accounted for by the proponent of the will. When the proponent rested the attorney for the opposition introduced a single witness whose testimony tended to show in a vague and indecisive manner that at the time the will was made the testator was so debilitated as to be unable to comprehend what he was about. After the cause had been submitted for determination upon the proof thus presented, the trial judge found that the testator at the time of the making of the will was of sound mind and disposing memory and that the will had been properly executed. He accordingly admitted the will to probate. From this judgment an appeal was taken in behalf of the persons contesting the will, and the only errors here assigned have reference to the two following points, namely, first, 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; and, secondly, whether the will in question is rendered invalid by reason of the fact that the signature of the testator and of the three attesting witnesses are written on the right margin of each page of the will instead of the left margin. Upon the first point, while it is undoubtedly true that an uncontested will bay 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 the 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 the first time in this court. We believe this point is well taken, and the first assignment of error must be declared not 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 reason 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 relates 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 is 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 necessary to prove the will was in issue in the lower court. The second point involved in this case is whether, under section 618 of the Code of Civil Procedure, as amended by Act No. 2645, it is essential to the validity of a will in this jurisdiction that the names of the testator and the instrumental witnesses should be written on the left margin of each page, as required in said Act, and not upon the right margin, as in the will now before us; and upon this we are of the opinion that the will in question is valid. 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 doctrine is also deducible from cases heretofore decided by this court. Still some details at times creep into legislative enactments which are so trivial 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 right margin seems to be 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 no the right margin, provided they are on one or the other. In Caraig vs. Tatlonghari (R. G. 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. The instrument now before us contains the necessary signatures on every page, and the only point of deviation from the requirement of the statute is that these signatures appear in the right margin instead of the left. By the mode of signing adopted every page and provision of the will is authenticated and guarded from possible alteration in exactly the same degree that it would have been protected by being signed in the left margin; and the resources of casuistry could be exhausted without discovering the slightest difference between the consequences of affixing the signatures in one margin or the other. The same could not be said of a case like that of Estate of Saguinsin, supra, where only the leaves, or alternate pages, were signed and not each written page; for as observed in that case by our late lamented Chief Justice, it was possible that in the will as there originally executed by the testratrix only the alternative pages had been used, leaving blanks on the reverse sides, which conceivably might have been filled in subsequently. The controlling considerations on the point now before us were well stated In Re will of Abangan (40 Phil., 476, 479), where the court, speaking through Mr. Justice Avancea, in a case where the signatures were placed at the bottom of the page and not in the margin, said: The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution o will 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 requisites entirely unnecessary, useless and frustrative of the testator's last will, must be disregarded. In the case before us, where ingenuity could not suggest any possible prejudice to any person, as attendant upon the actual deviation from the letter of the law, such deviation must be considered too trivial to invalidate the instrument. It results that the legal errors assigned are not sustainable, and the judgment appealed from will be affirmed. It is so ordered, with costs against the appellants. Johnson, Araullo, Avancea and Villamor, JJ., concur.

THIRD DIVISION G.R. No. 122880 April 12, 2006

FELIX AZUELA, Petitioner, vs. COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO G. CASTILLO, Respondents. DECISION TINGA, J.: The core of this petition is a highly defective notarial will, purportedly executed by Eugenia E. Igsolo (decedent), who died on 16 December 1982 at the age of 80. In refusing to give legal recognition to the due execution of this document, the Court is provided the opportunity to assert a few important doctrinal rules in the execution of notarial wills, all self-evident in view of Articles 805 and 806 of the Civil Code. A will whose attestation clause does not contain the number of pages on which the will is written is fatally defective. A will whose attestation clause is not signed by the instrumental witnesses is fatally defective. And perhaps most importantly, a will which does not contain an acknowledgment, but a mere jurat, is fatally defective. Any one of these defects is sufficient to deny probate. A notarial will with all three defects is just aching for judicial rejection. There is a distinct and consequential reason the Civil Code provides a comprehensive catalog of imperatives for the proper execution of a notarial will. Full and faithful compliance with all the detailed requisites under Article 805 of the Code leave little room for doubt as to the validity in the due execution of the notarial will. Article 806 likewise imposes another safeguard to the validity of notarial wills that they be acknowledged before a notary public by the testator and the witnesses. A notarial will executed with indifference to these two codal provisions opens itself to nagging questions as to its legitimacy. The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial Court (RTC) of Manila. The petition filed by petitioner Felix Azuela sought to admit to probate the notarial will of Eugenia E. Igsolo, which was notarized on 10 June 1981. Petitioner is the son of the cousin of the decedent. The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full: HULING HABILIN NI EUGENIA E. IGSOLO SA NGALAN NG MAYKAPAL, AMEN: AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila, pitongput siyam (79) na gulang, nasa hustong pagi-isip, pag-unawa at memoria ay nag-hahayag na ito na ang aking huling habilin at testamento, at binabali wala ko lahat ang naunang ginawang habilin o testamento:

Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong sa kaugalian at patakaran ng simbahang katoliko at ang taga-pag-ingat (Executor) ng habiling ito ay magtatayo ng bantayog upang silbing ala-ala sa akin ng aking pamilya at kaibigan; Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking pamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa mahabang panahon, yaong mga bahay na nakatirik sa lote numero 28, Block 24 at nakapangalan sa Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng karapatan sa bahay na nakatirik sa inoopahan kong lote, numero 43, Block 24 na pag-aari ng Pechaten Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at lupa na nasa 500 San Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix Azuela at ang pagkakaloob kong ito ay walang pasubalit at kondiciones; Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling habiling ito at kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng piyansiya. Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981. (Sgd.) EUGENIA E. IGSOLO (Tagapagmana) PATUNAY NG MGA SAKSI Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawat dahon, sa harap ng lahat at bawat sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawat isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawat dahon ng kasulatan ito. EUGENIA E. IGSOLO address: 500 San Diego St. Sampaloc, Manila Res. Cert. No. A-7717-37 Issued at Manila on March 10, 1981. QUIRINO AGRAVA address: 1228-Int. 3, Kahilum Pandacan, Manila Res. Cert. No. A-458365 Issued at Manila on Jan. 21, 1981 LAMBERTO C. LEAO address: Avenue 2, Blcok 7, Lot 61, San Gabriel, G.MA., Cavite Res. Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981 JUANITO ESTRERA address: City Court Compound, City of Manila Res. Cert. No. A574829 Issued at Manila on March 2, 1981.

Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng Maynila. (Sgd.) PETRONIO Y. BAUTISTA Doc. No. 1232 ; NOTARIO PUBLIKO Page No. 86 ; Until Dec. 31, 1981 Book No. 43 ; PTR-152041-1/2/81-Manila Series of 1981 TAN # 1437-977-81 The three named witnesses to the will affixed their signatures on the left-hand margin of both pages of the will, but not at the bottom of the attestation clause. The probate petition adverted to only two (2) heirs, legatees and devisees of the decedent, namely: petitioner himself, and one Irene Lynn Igsolo, who was alleged to have resided abroad. Petitioner prayed that the will be allowed, and that letters testamentary be issued to the designated executor, Vart Prague. The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented herself as the attorney-in-fact of "the 12 legitimate heirs" of the decedent. 2 Geralda Castillo claimed that the will is a forgery, and that the true purpose of its emergence was so it could be utilized as a defense in several court cases filed by oppositor against petitioner, particularly for forcible entry and usurpation of real property, all centering on petitioners right to occupy the properties of the decedent.3 It also asserted that contrary to the representations of petitioner, the decedent was actually survived by 12 legitimate heirs, namely her grandchildren, who were then residing abroad. Per records, it was subsequently alleged that decedent was the widow of Bonifacio Igsolo, who died in 1965,4 and the mother of a legitimate child, Asuncion E. Igsolo, who predeceased her mother by three (3) months.5 Oppositor Geralda Castillo also argued that the will was not executed and attested to in accordance with law. She pointed out that decedents signature did not appear on the second page of the will, and the will was not properly acknowledged. These twin arguments are among the central matters to this petition. After due trial, the RTC admitted the will to probate, in an Order dated 10 August 1992.6 The RTC favorably took into account the testimony of the three (3) witnesses to the will, Quirino Agrava, Lamberto Leano, and Juanito Estrada. The RTC also called to fore "the modern tendency in respect to the formalities in the execution of a will x x x with the end in view of giving the testator more freedom in expressing his last wishes;"7 and from this perspective, rebutted oppositors arguments that the will was not properly executed and attested to in accordance with law. After a careful examination of the will and consideration of the testimonies of the subscribing and attesting witnesses, and having in mind the modern tendency in respect to the formalities in the execution of a will, i.e., the liberalization of the interpretation of the law on the formal requirements of a will with the end in view of giving the testator more freedom in expressing his last wishes, this Court is persuaded to rule that the will in question is authentic and had been executed by the testatrix in accordance with law. On the issue of lack of acknowledgement, this Court has noted that at the end of the will after the signature of the testatrix, the following statement is made under the sub-title, "Patunay Ng Mga Saksi":

"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni Eugenia N. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayong ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawat dahon, sa harap ng lahat at bawat sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawat isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawat dahon ng kasulatan ito." The aforequoted declaration comprises the attestation clause and the acknowledgement and is considered by this Court as a substantial compliance with the requirements of the law. On the oppositors contention that the attestation clause was not signed by the subscribing witnesses at the bottom thereof, this Court is of the view that the signing by the subscribing witnesses on the left margin of the second page of the will containing the attestation clause and acknowledgment, instead of at the bottom thereof, substantially satisfies the purpose of identification and attestation of the will. With regard to the oppositors argument that the will was not numbered correlatively in letters placed on upper part of each page and that the attestation did not state the number of pages thereof, it is worthy to note that the will is composed of only two pages. The first page contains the entire text of the testamentary dispositions, and the second page contains the last portion of the attestation clause and acknowledgement. Such being so, the defects are not of a serious nature as to invalidate the will. For the same reason, the failure of the testatrix to affix her signature on the left margin of the second page, which contains only the last portion of the attestation clause and acknowledgment is not a fatal defect. As regards the oppositors assertion that the signature of the testatrix on the will is a forgery, the testimonies of the three subscribing witnesses to the will are convincing enough to establish the genuineness of the signature of the testatrix and the due execution of the will.8 The Order was appealed to the Court of Appeals by Ernesto Castillo, who had substituted his since deceased mother-in-law, Geralda Castillo. In a Decision dated 17 August 1995, the Court of Appeals reversed the trial court and ordered the dismissal of the petition for probate.9 The Court of Appeals noted that the attestation clause failed to state the number of pages used in the will, thus rendering the will void and undeserving of probate.10 Hence, the present petition. Petitioner argues that the requirement under Article 805 of the Civil Code that "the number of pages used in a notarial will be stated in the attestation clause" is merely directory, rather than mandatory, and thus susceptible to what he termed as "the substantial compliance rule."11 The solution to this case calls for the application of Articles 805 and 806 of the Civil Code, which we replicate in full. Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page. The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court. The appellate court, in its Decision, considered only one defect, the failure of the attestation clause to state the number of pages of the will. But an examination of the will itself reveals several more deficiencies. As admitted by petitioner himself, the attestation clause fails to state the number of pages of the will.12 There was an incomplete attempt to comply with this requisite, a space having been allotted for the insertion of the number of pages in the attestation clause. Yet the blank was never filled in; hence, the requisite was left uncomplied with. The Court of Appeals pounced on this defect in reversing the trial court, citing in the process Uy Coque v. Navas L. Sioca13 and In re: Will of Andrada.14 In Uy Coque, the Court noted that among the defects of the will in question was the failure of the attestation clause to state the number of pages contained in the will.15In ruling that the will could not be admitted to probate, the Court made the following consideration which remains highly relevant to this day: "The purpose of requiring the number of sheets to be stated in the attestation clause is obvious; the document might easily be so prepared that the removal of a sheet would completely change the testamentary dispositions of the will and in the absence of a statement of the total number of sheets such removal might be effected by taking out the sheet and changing the numbers at the top of the following sheets or pages. If, on the other hand, the total number of sheets is stated in the attestation clause the falsification of the document will involve the inserting of new pages and the forging of the signatures of the testator and witnesses in the margin, a matter attended with much greater difficulty."16 The case of In re Will of Andrada concerned a will the attestation clause of which failed to state the number of sheets or pages used. This consideration alone was sufficient for the Court to declare "unanim[ity] upon the point that the defect pointed out in the attesting clause is fatal."17 It was further observed that "it cannot be denied that the x x x requirement affords additional security against the danger that the will may be tampered with; and as the Legislature has seen fit to prescribe this requirement, it must be considered material."18 Against these cited cases, petitioner cites Singson v. Florentino19 and Taboada v. Hon. Rosal,20 wherein the Court allowed probate to the wills concerned therein despite the fact that the attestation clause did not state the number of pages of the will. Yet the appellate court

itself considered the import of these two cases, and made the following distinction which petitioner is unable to rebut, and which we adopt with approval: Even a cursory examination of the Will (Exhibit "D"), will readily show that the attestation does not state the number of pages used upon which the will is written. Hence, the Will is void and undeserving of probate. We are not impervious of the Decisions of the Supreme Court in "Manuel Singson versus Emilia Florentino, et al., 92 Phil. 161 and Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA 195," to the effect that a will may still be valid even if the attestation does not contain the number of pages used upon which the Will is written. However, the Decisions of the Supreme Court are not applicable in the aforementioned appeal at bench. This is so because, in the case of "Manuel Singson versus Emilia Florentino, et al., supra," although the attestation in the subject Will did not state the number of pages used in the will, however, the same was found in the last part of the body of the Will: "x x x The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which requires that the attestation clause shall state the number of pages or sheets upon which the will is written, which requirement has been held to be mandatory as an effective safeguard against the possibility of interpolation or omission of some of the pages of the will to the prejudice of the heirs to whom the property is intended to be bequeathed (In re Will of Andrada, 42 Phil. 180; Uy Coque vs. Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to be that the attestation clause must contain a statement of the number of sheets or pages composing the will and that if this is missing or is omitted, it will have the effect of invalidating the will if the deficiency cannot be supplied, not by evidence aliunde, but by a consideration or examination of the will itself. But here the situation is different. While the attestation clause does not state the number of sheets or pages upon which the will is written, however, the last part of the body of the will contains a statement that it is composed of eight pages, which circumstance in our opinion takes this case out of the rigid rule of construction and places it within the realm of similar cases where a broad and more liberal view has been adopted to prevent the will of the testator from being defeated by purely technical considerations." (page 165-165, supra) (Underscoring supplied) In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial acknowledgement in the Will states the number of pages used in the: "x x x We have examined the will in question and noticed that the attestation clause failed to state the number of pages used in writing the will. This would have been a fatal defect were it not for the fact that, in this case, it is discernible from the entire will that it is really and actually composed of only two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first page which contains the entirety of the testamentary dispositions is signed by the testatrix at the end or at the bottom while the instrumental witnesses signed at the left margin. The other page which is marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The acknowledgment itself states that "this Last Will and Testament consists of two pages including this page" (pages 200-201, supra) (Underscoring supplied).

However, in the appeal at bench, the number of pages used in the will is not stated in any part of the Will. The will does not even contain any notarial acknowledgment wherein the number of pages of the will should be stated.21 Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code in 1950, at a time when the statutory provision governing the formal requirement of wills was Section 618 of the Code of Civil Procedure.22 Reliance on these cases remains apropos, considering that the requirement that the attestation state the number of pages of the will is extant from Section 618.23 However, the enactment of the Civil Code in 1950 did put in force a rule of interpretation of the requirements of wills, at least insofar as the attestation clause is concerned, that may vary from the philosophy that governed these two cases. Article 809 of the Civil Code states: "In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of article 805." In the same vein, petitioner cites the report of the Civil Code Commission, which stated that "the underlying and fundamental objective permeating the provisions on the [law] on [wills] in this project consists in the [liberalization] of the manner of their execution with the end in view of giving the testator more [freedom] in [expressing] his last wishes. This objective is in accord with the [modern tendency] in respect to the formalities in the execution of wills."24 However, petitioner conveniently omits the qualification offered by the Code Commission in the very same paragraph he cites from their report, that such liberalization be "but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator."25 Caneda v. Court of Appeals26 features an extensive discussion made by Justice Regalado, speaking for the Court on the conflicting views on the manner of interpretation of the legal formalities required in the execution of the attestation clause in wills.27 Uy Coque and Andrada are cited therein, along with several other cases, as examples of the application of the rule of strict construction.28 However, the Code Commission opted to recommend a more liberal construction through the "substantial compliance rule" under Article 809. A cautionary note was struck though by Justice J.B.L. Reyes as to how Article 809 should be applied: x x x The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself: whether all the pages are consecutively numbered; whether the signatures appear in each and every page; whether the subscribing witnesses are three or the will was notarized. All these are facts that the will itself can reveal, and defects or even omissions concerning them in the attestation clause can be safely disregarded. But the total number of pages, and whether all persons required to sign did so in the presence of each other must substantially appear in the attestation clause, being the only check against perjury in the probate proceedings.29 (Emphasis supplied.) The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed decision, considering that the failure to state the number of pages of the will in the attestation clause is one of the defects which cannot be simply disregarded. In Caneda itself, the Court refused to allow the probate of a will whose attestation clause failed to state that the witnesses subscribed their respective signatures to the will in the presence of the testator and of each other,30 the other omission cited by Justice J.B.L. Reyes which to his estimation cannot be lightly disregarded.

Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that omission which can be supplied by an examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the allowance to probate of the will being assailed. However, those omissions which cannot be supplied except by evidence aliunde would result in the invalidation of the attestation clause and ultimately, of the will itself."31 Thus, a failure by the attestation clause to state that the testator signed every page can be liberally construed, since that fact can be checked by a visual examination; while a failure by the attestation clause to state that the witnesses signed in one anothers presence should be considered a fatal flaw since the attestation is the only textual guarantee of compliance.32 The failure of the attestation clause to state the number of pages on which the will was written remains a fatal flaw, despite Article 809. The purpose of the law in requiring the clause to state the number of pages on which the will is written is to safeguard against possible interpolation or omission of one or some of its pages and to prevent any increase or decrease in the pages.33 The failure to state the number of pages equates with the absence of an averment on the part of the instrumental witnesses as to how many pages consisted the will, the execution of which they had ostensibly just witnessed and subscribed to. Following Caneda, there is substantial compliance with this requirement if the will states elsewhere in it how many pages it is comprised of, as was the situation in Singson and Taboada. However, in this case, there could have been no substantial compliance with the requirements under Article 805 since there is no statement in the attestation clause or anywhere in the will itself as to the number of pages which comprise the will. At the same time, Article 809 should not deviate from the need to comply with the formal requirements as enumerated under Article 805. Whatever the inclinations of the members of the Code Commission in incorporating Article 805, the fact remains that they saw fit to prescribe substantially the same formal requisites as enumerated in Section 618 of the Code of Civil Procedure, convinced that these remained effective safeguards against the forgery or intercalation of notarial wills.34 Compliance with these requirements, however picayune in impression, affords the public a high degree of comfort that the testator himself or herself had decided to convey property post mortem in the manner established in the will.35 The transcendent legislative intent, even as expressed in the cited comments of the Code Commission, is for the fruition of the testators incontestable desires, and not for the indulgent admission of wills to probate. The Court could thus end here and affirm the Court of Appeals. However, an examination of the will itself reveals a couple of even more critical defects that should necessarily lead to its rejection. For one, the attestation clause was not signed by the instrumental witnesses. While the signatures of the instrumental witnesses appear on the left-hand margin of the will, they do not appear at the bottom of the attestation clause which after all consists of their averments before the notary public. Cagro v. Cagro36 is material on this point. As in this case, "the signatures of the three witnesses to the will do not appear at the bottom of the attestation clause, although the page containing the same is signed by the witnesses on the left-hand margin."37 While three (3) Justices38 considered the signature requirement had been substantially complied with, a majority of six (6), speaking through Chief Justice Paras, ruled that the attestation clause had not been duly signed, rendering the will fatally defective.

There is no question that the signatures of the three witnesses to the will do not appear at the bottom of the attestation clause, although the page containing the same is signed by the witnesses on the left-hand margin. We are of the opinion that the position taken by the appellant is correct. The attestation clause is "a memorandum of the facts attending the execution of the will" required by law to be made by the attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation clause cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom thereof negatives their participation. The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin conform substantially to the law and may be deemed as their signatures to the attestation clause. This is untenable, because said signatures are in compliance with the legal mandate that the will be signed on the left-hand margin of all its pages. If an attestation clause not signed by the three witnesses at the bottom thereof, be admitted as sufficient, it would be easy to add such clause to a will on a subsequent occasion and in the absence of the testator and any or all of the witnesses.39 The Court today reiterates the continued efficacy of Cagro. Article 805 particularly segregates the requirement that the instrumental witnesses sign each page of the will, from the requisite that the will be "attested and subscribed by [the instrumental witnesses]." The respective intents behind these two classes of signature are distinct from each other. The signatures on the left-hand corner of every page signify, among others, that the witnesses are aware that the page they are signing forms part of the will. On the other hand, the signatures to the attestation clause establish that the witnesses are referring to the statements contained in the attestation clause itself. Indeed, the attestation clause is separate and apart from the disposition of the will. An unsigned attestation clause results in an unattested will. Even if the instrumental witnesses signed the left-hand margin of the page containing the unsigned attestation clause, such signatures cannot demonstrate these witnesses undertakings in the clause, since the signatures that do appear on the page were directed towards a wholly different avowal. The Court may be more charitably disposed had the witnesses in this case signed the attestation clause itself, but not the left-hand margin of the page containing such clause. Without diminishing the value of the instrumental witnesses signatures on each and every page, the fact must be noted that it is the attestation clause which contains the utterances reduced into writing of the testamentary witnesses themselves. It is the witnesses, and not the testator, who are required under Article 805 to state the number of pages used upon which the will is written; the fact that the testator had signed the will and every page thereof; and that they witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. The only proof in the will that the witnesses have stated these elemental facts would be their signatures on the attestation clause. Thus, the subject will cannot be considered to have been validly attested to by the instrumental witnesses, as they failed to sign the attestation clause. Yet, there is another fatal defect to the will on which the denial of this petition should also hinge. The requirement under Article 806 that "every will must be acknowledged before a notary public by the testator and the witnesses" has also not been complied with. The importance of this requirement is highlighted by the fact that it had been segregated from the other requirements under Article 805 and entrusted into a separate provision, Article 806.

The non-observance of Article 806 in this case is equally as critical as the other cited flaws in compliance with Article 805, and should be treated as of equivalent import. In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote "Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila."40 By no manner of contemplation can those words be construed as an acknowledgment. An acknowledgment is the act of one who has executed a deed in going before some competent officer or court and declaring it to be his act or deed.41 It involves an extra step undertaken whereby the signor actually declares to the notary that the executor of a document has attested to the notary that the same is his/her own free act and deed. It might be possible to construe the averment as a jurat, even though it does not hew to the usual language thereof. A jurat is that part of an affidavit where the notary certifies that before him/her, the document was subscribed and sworn to by the executor.42 Ordinarily, the language of the jurat should avow that the document was subscribed and sworn before the notary public, while in this case, the notary public averred that he himself "signed and notarized" the document. Possibly though, the word "ninotario" or "notarized" encompasses the signing of and swearing in of the executors of the document, which in this case would involve the decedent and the instrumental witnesses. Yet even if we consider what was affixed by the notary public as a jurat, the will would nonetheless remain invalid, as the express requirement of Article 806 is that the will be "acknowledged", and not merely subscribed and sworn to. The will does not present any textual proof, much less one under oath, that the decedent and the instrumental witnesses executed or signed the will as their own free act or deed. The acknowledgment made in a will provides for another all-important legal safeguard against spurious wills or those made beyond the free consent of the testator. An acknowledgement is not an empty meaningless act.43 The acknowledgment coerces the testator and the instrumental witnesses to declare before an officer of the law that they had executed and subscribed to the will as their own free act or deed. Such declaration is under oath and under pain of perjury, thus allowing for the criminal prosecution of persons who participate in the execution of spurious wills, or those executed without the free consent of the testator. It also provides a further degree of assurance that the testator is of certain mindset in making the testamentary dispositions to those persons he/she had designated in the will. It may not have been said before, but we can assert the rule, self-evident as it is under Article 806. A notarial will that is not acknowledged before a notary public by the testator and the witnesses is fatally defective, even if it is subscribed and sworn to before a notary public. There are two other requirements under Article 805 which were not fully satisfied by the will in question. We need not discuss them at length, as they are no longer material to the disposition of this case. The provision requires that the testator and the instrumental witnesses sign each and every page of the will on the left margin, except the last; and that all the pages shall be numbered correlatively in letters placed on the upper part of each page. In this case, the decedent, unlike the witnesses, failed to sign both pages of the will on the left margin, her only signature appearing at the so-called "logical end" 44 of the will on its first page. Also, the will itself is not numbered correlatively in letters on each page, but instead numbered with Arabic numerals. There is a line of thought that has disabused the notion that these two requirements be construed as mandatory.45 Taken in isolation, these omissions, by themselves, may not be sufficient to deny probate to a will. Yet even as these omissions are

not decisive to the adjudication of this case, they need not be dwelt on, though indicative as they may be of a general lack of due regard for the requirements under Article 805 by whoever executed the will. All told, the string of mortal defects which the will in question suffers from makes the probate denial inexorable. WHEREFORE, the petition is DENIED. Costs against petitioner. SO ORDERED.

THIRD DIVISION G.R. No. 157451 December 16, 2005 LETICIA VALMONTE ORTEGA, Petitioner, vs. JOSEFINA C. VALMONTE, Respondent. DECISION PANGANIBAN, J.: The law favors the probate of a will. Upon those who oppose it rests the burden of showing why it should not be allowed. In the present case, petitioner has failed to discharge this burden satisfactorily. For this reason, the Court cannot attribute any reversible error on the part of the appellate tribunal that allowed the probate of the will. The Case Before the Court is a Petition for Review1 under Rule 45 of the Rules of Court, seeking to reverse and set aside the December 12, 2002 Decision2 and the March 7, 2003 Resolution3 of the Court of Appeals (CA) in CA-GR CV No. 44296. The assailed Decision disposed as follows: "WHEREFORE, the appeal is GRANTED, and the Decision appealed from is REVERSED and SET ASIDE. In its place judgment is rendered approving and allowing probate to the said last will and testament of Placido Valmonte and ordering the issuance of letters testamentary to the petitioner Josefina Valmonte. Let this case be remanded to the court a quo for further and concomitant proceedings."4 The assailed Resolution denied petitioners Motion for Reconsideration. The Facts The facts were summarized in the assailed Decision of the CA, as follows: "x x x: Like so many others before him, Placido toiled and lived for a long time in the United States until he finally reached retirement. In 1980, Placido finally came home to stay in the Philippines, and he lived in the house and lot located at #9200 Catmon St., San Antonio Village, Makati, which he owned in common with his sister Ciriaca Valmonte and titled in their names in TCT 123468. Two years after his arrival from the United States and at the age of 80 he wed Josefina who was then 28 years old, in a ceremony solemnized by Judge Perfecto Laguio, Jr. on February 5, 1982. But in a little more than two years of wedded bliss, Placido died on October 8, 1984 of a cause written down as COR PULMONALE. "Placido executed a notarial last will and testament written in English and consisting of two (2) pages, and dated June 15, 1983 but acknowledged only on August 9, 1983. The first page contains the entire testamentary dispositions and a part of the attestation clause, and was signed at the end or bottom of that page by the testator and on the left hand margin by the three instrumental witnesses. The second page contains the continuation of the

attestation clause and the acknowledgment, and was signed by the witnesses at the end of the attestation clause and again on the left hand margin. It provides in the body that: LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN THE NAME OF THE LORD AMEN: I, PLACIDO VALMONTE, of legal age, married to Josefina Cabansag Valmonte, and a resident of 9200 Catmon Street, Makati, Metro Manila, 83 years of age and being of sound and disposing mind and memory, do hereby declare this to be my last will and testament: 1. It is my will that I be buried in the Catholic Cemetery, under the auspices of the Catholic Church in accordance with the rites and said Church and that a suitable monument to be erected and provided my by executrix (wife) to perpetuate my memory in the minds of my family and friends; 2. I give, devise and bequeath unto my loving wife, JOSEFINA C. VALMONTE, one half (1/2) portion of the follow-described properties, which belongs to me as [co-owner]: a. Lot 4-A, Block 13 described on plan Psd-28575, LRC, (GLRO), situated in Makati, Metro Manila, described and covered by TCT No. 123468 of the Register of Deeds of Pasig, MetroManila registered jointly as co-owners with my deceased sister (Ciriaca Valmonte), having share and share alike; b. 2-storey building standing on the above-described property, made of strong and mixed materials used as my residence and my wife and located at No. 9200 Catmon Street, Makati, Metro Manila also covered by Tax Declaration No. A-025-00482, Makati, Metro-Manila, jointly in the name of my deceased sister, Ciriaca Valmonte and myself as co-owners, share and share alike or equal co-owners thereof; 3. All the rest, residue and remainder of my real and personal properties, including my savings account bank book in USA which is in the possession of my nephew, and all others whatsoever and wherever found, I give, devise and bequeath to my said wife, Josefina C. Valmonte; 4. I hereby appoint my wife, Josefina C. Valmonte as sole executrix of my last will and testament, and it is my will that said executrix be exempt from filing a bond; IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of June 1983 in Quezon City, Philippines. "The allowance to probate of this will was opposed by Leticia on the grounds that: 1. Petitioner failed to allege all assets of the testator, especially those found in the USA; 2. Petitioner failed to state the names, ages, and residences of the heirs of the testator; or to give them proper notice pursuant to law; 3. Will was not executed and attested as required by law and legal solemnities and formalities were not complied with;

4. Testator was mentally incapable to make a will at the time of the alleged execution he being in an advance sate of senility; 5. Will was executed under duress, or the influence of fear or threats; 6. Will was procured by undue and improper influence and pressure on the part of the petitioner and/or her agents and/or assistants; and/or 7. Signature of testator was procured by fraud, or trick, and he did not intend that the instrument should be his will at the time of affixing his signature thereto; and she also opposed the appointment as Executrix of Josefina alleging her want of understanding and integrity. "At the hearing, the petitioner Josefina testified and called as witnesses the notary public Atty. Floro Sarmiento who prepared and notarized the will, and the instrumental witnesses spouses Eugenio Gomez, Jr. and Feliza Gomez and Josie Collado. For the opposition, the oppositor Leticia and her daughter Mary Jane Ortega testified. "According to Josefina after her marriage with the testator they lived in her parents house at Salingcob, Bacnotan, La Union but they came to Manila every month to get his $366.00 monthly pension and stayed at the said Makati residence. There were times though when to shave off on expenses, the testator would travel alone. And it was in one of his travels by his lonesome self when the notarial will was made. The will was witnessed by the spouses Eugenio and Feliza Gomez, who were their wedding sponsors, and by Josie Collado. Josefina said she had no knowledge of the existence of the last will and testament of her husband, but just serendipitously found it in his attache case after his death. It was only then that she learned that the testator bequeathed to her his properties and she was named the executrix in the said will. To her estimate, the value of property both real and personal left by the testator is worth more or less P100,000.00. Josefina declared too that the testator never suffered mental infirmity because despite his old age he went alone to the market which is two to three kilometers from their home cooked and cleaned the kitchen and sometimes if she could not accompany him, even traveled to Manila alone to claim his monthly pension. Josefina also asserts that her husband was in good health and that he was hospitalized only because of a cold but which eventually resulted in his death. "Notary Public Floro Sarmiento, the notary public who notarized the testators will, testified that it was in the first week of June 1983 when the testator together with the three witnesses of the will went to his house cum law office and requested him to prepare his last will and testament. After the testator instructed him on the terms and dispositions he wanted on the will, the notary public told them to come back on June 15, 1983 to give him time to prepare it. After he had prepared the will the notary public kept it safely hidden and locked in his drawer. The testator and his witnesses returned on the appointed date but the notary public was out of town so they were instructed by his wife to come back on August 9, 1983, and which they did. Before the testator and his witnesses signed the prepared will, the notary public explained to them each and every term thereof in Ilocano, a dialect which the testator spoke and understood. He likewise explained that though it appears that the will was signed by the testator and his witnesses on June 15, 1983, the day when it should have been executed had he not gone out of town, the formal execution was actually on August 9, 1983. He reasoned that he no longer changed the typewritten date of June 15, 1983 because he did not like the document to appear dirty. The notary public also testified that to his

observation the testator was physically and mentally capable at the time he affixed his signature on the will. "The attesting witnesses to the will corroborated the testimony of the notary public, and testified that the testator went alone to the house of spouses Eugenio and Feliza Gomez at GSIS Village, Quezon City and requested them to accompany him to the house of Atty. Floro Sarmiento purposely for his intended will; that after giving his instructions to Atty. Floro Sarmiento, they were told to return on June 15, 1983; that they returned on June 15, 1983 for the execution of the will but were asked to come back instead on August 9, 1983 because of the absence of the notary public; that the testator executed the will in question in their presence while he was of sound and disposing mind and that he was strong and in good health; that the contents of the will was explained by the notary public in the Ilocano and Tagalog dialect and that all of them as witnesses attested and signed the will in the presence of the testator and of each other. And that during the execution, the testators wife, Josefina was not with them. "The oppositor Leticia declared that Josefina should not inherit alone because aside from her there are other children from the siblings of Placido who are just as entitled to inherit from him. She attacked the mental capacity of the testator, declaring that at the time of the execution of the notarial will the testator was already 83 years old and was no longer of sound mind. She knew whereof she spoke because in 1983 Placido lived in the Makati residence and asked Leticias family to live with him and they took care of him. During that time, the testators physical and mental condition showed deterioration, aberrations and senility. This was corroborated by her daughter Mary Jane Ortega for whom Placido took a fancy and wanted to marry. "Sifting through the evidence, the court a quo held that [t]he evidence adduced, reduces the opposition to two grounds, namely: 1. Non-compliance with the legal solemnities and formalities in the execution and attestation of the will; and 2. Mental incapacity of the testator at the time of the execution of the will as he was then in an advanced state of senility "It then found these grounds extant and proven, and accordingly disallowed probate." 5 Ruling of the Court of Appeals Reversing the trial court, the appellate court admitted the will of Placido Valmonte to probate. The CA upheld the credibility of the notary public and the subscribing witnesses who had acknowledged the due execution of the will. Moreover, it held that the testator had testamentary capacity at the time of the execution of the will. It added that his "sexual exhibitionism and unhygienic, crude and impolite ways"6 did not make him a person of unsound mind. Hence, this Petition.7 Issues Petitioner raises the following issues for our consideration:

"I. Whether or not the findings of the probate court are entitled to great respect. "II. Whether or not the signature of Placido Valmonte in the subject will was procured by fraud or trickery, and that Placido Valmonte never intended that the instrument should be his last will and testament. "III. Whether or not Placido Valmonte has testamentary capacity at the time he allegedly executed the subject will."8 In short, petitioner assails the CAs allowance of the probate of the will of Placido Valmonte. This Courts Ruling The Petition has no merit. Main Issue: Probate of a Will At the outset, we stress that only questions of law may be raised in a Petition for Review under Section 1 of Rule 45 of the Rules of Court. As an exception, however, the evidence presented during the trial may be examined and the factual matters resolved by this Court when, as in the instant case, the findings of fact of the appellate court differ from those of the trial court.9 The fact that public policy favors the probate of a will does not necessarily mean that every will presented for probate should be allowed. The law lays down the procedures and requisites that must be satisfied for the probate of a will.10 Verily, Article 839 of the Civil Code states the instances when a will may be disallowed, as follows: "Article 839. The will shall be disallowed in any of the following cases: (1) If the formalities required by law have not been complied with; (2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution; (3) If it was executed through force or under duress, or the influence of fear, or threats; (4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person; (5) If the signature of the testator was procured by fraud;

(6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto." In the present case, petitioner assails the validity of Placido Valmontes will by imputing fraud in its execution and challenging the testators state of mind at the time. Existence of Fraud in the Execution of a Will Petitioner does not dispute the due observance of the formalities in the execution of the will, but maintains that the circumstances surrounding it are indicative of the existence of fraud. Particularly, she alleges that respondent, who is the testators wife and sole beneficiary, conspired with the notary public and the three attesting witnesses in deceiving Placido to sign it. Deception is allegedly reflected in the varying dates of the execution and the attestation of the will. Petitioner contends that it was "highly dubious for a woman at the prime of her young life [to] almost immediately plunge into marriage with a man who [was] thrice her age x x x and who happened to be [a] Fil-American pensionado,"11 thus casting doubt on the intention of respondent in seeking the probate of the will. Moreover, it supposedly "defies human reason, logic and common experience"12 for an old man with a severe psychological condition to have willingly signed a last will and testament. We are not convinced. Fraud "is a trick, secret device, false statement, or pretense, by which the subject of it is cheated. It may be of such character that the testator is misled or deceived as to the nature or contents of the document which he executes, or it may relate to some extrinsic fact, in consequence of the deception regarding which the testator is led to make a certain will which, but for the fraud, he would not have made."13 We stress that the party challenging the will bears the burden of proving the existence of fraud at the time of its execution.14 The burden to show otherwise shifts to the proponent of the will only upon a showing of credible evidence of fraud.15 Unfortunately in this case, other than the self-serving allegations of petitioner, no evidence of fraud was ever presented. It is a settled doctrine that the omission of some relatives does not affect the due execution of a will.16 That the testator was tricked into signing it was not sufficiently established by the fact that he had instituted his wife, who was more than fifty years his junior, as the sole beneficiary; and disregarded petitioner and her family, who were the ones who had taken "the cudgels of taking care of [the testator] in his twilight years."17 Moreover, as correctly ruled by the appellate court, the conflict between the dates appearing on the will does not invalidate the document, "because the law does not even require that a [notarial] will x x x be executed and acknowledged on the same occasion."18 More important, the will must be subscribed by the testator, as well as by three or more credible witnesses who must also attest to it in the presence of the testator and of one another.19Furthermore, the testator and the witnesses must acknowledge the will before a notary public.20 In any event, we agree with the CA that "the variance in the dates of the will as to its supposed execution and attestation was satisfactorily and persuasively explained by the notary public and the instrumental witnesses."21

The pertinent transcript of stenographic notes taken on June 11, 1985, November 25, 1985, October 13, 1986, and October 21, 1987 -- as quoted by the CA -- are reproduced respectively as follows: "Atty. Floro Sarmiento: Q You typed this document exhibit C, specifying the date June 15 when the testator and his witnesses were supposed to be in your office? A Yes sir. Q On June 15, 1983, did the testator and his witnesses come to your house? A They did as of agreement but unfortunately, I was out of town. xxxxxxxxx Q The document has been acknowledged on August 9, 1983 as per acknowledgement appearing therein. Was this the actual date when the document was acknowledged? A Yes sir. Q What about the date when the testator and the three witnesses affixed their respective signature on the first and second pages of exhibit C? A On that particular date when it was acknowledged, August 9, 1983. Q Why did you not make the necessary correction on the date appearing on the body of the document as well as the attestation clause? A Because I do not like anymore to make some alterations so I put it in my own handwriting August 9, 1983 on the acknowledgement. (tsn, June 11, 1985, pp. 8-10) Eugenio Gomez: Q It appears on the first page Mr. Witness that it is dated June 15, 1983, whereas in the acknowledgement it is dated August 9, 1983, will you look at this document and tell us this discrepancy in the date? A We went to Atty. Sarmiento together with Placido Valmonte and the two witnesses; that was first week of June and Atty. Sarmiento told us to return on the 15th of June but when we returned, Atty. Sarmiento was not there. Q When you did not find Atty. Sarmiento on June 15, 1983, did you again go back? A We returned on the 9th of August and there we signed. Q This August 9, 1983 where you said it is there where you signed, who were your companions?

A The two witnesses, me and Placido Valmonte. (tsn, November 25, 1985, pp. 7-8) Felisa Gomez on cross-examination: Q Why did you have to go to the office of Atty. Floro Sarmiento, three times? xxxxxxxxx A The reason why we went there three times is that, the first week of June was out first time. We went there to talk to Atty. Sarmiento and Placido Valmonte about the last will and testament. After that what they have talked what will be placed in the testament, what Atty. Sarmiento said was that he will go back on the 15th of June. When we returned on June 15, Atty. Sarmiento was not there so we were not able to sign it, the will. That is why, for the third time we went there on August 9 and that was the time we affixed our signature. (tsn, October 13, 1986, pp. 4-6) Josie Collado: Q When you did not find Atty. Sarmiento in his house on June 15, 1983, what transpired? A The wife of Atty. Sarmiento told us that we will be back on August 9, 1983. Q And on August 9, 1983 did you go back to the house of Atty. Sarmiento? A Yes, Sir. Q For what purpose? A Our purpose is just to sign the will. Q Were you able to sign the will you mentioned? A Yes sir. (tsn, October 21, 1987, pp. 4-5)"22 Notably, petitioner failed to substantiate her claim of a "grand conspiracy" in the commission of a fraud. There was no showing that the witnesses of the proponent stood to receive any benefit from the allowance of the will. The testimonies of the three subscribing witnesses and the notary are credible evidence of its due execution.23 Their testimony favoring it and the finding that it was executed in accordance with the formalities required by law should be affirmed, absent any showing of ill motives.24 Capacity to Make a Will In determining the capacity of the testator to make a will, the Civil Code gives the following guidelines: "Article 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution.

"Article 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or shattered by disease, injury or other cause. "It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act. "Article 800. The law presumes that every person is of sound mind, in the absence of proof to the contrary. "The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who opposes the probate of the will; but if the testator, one month, or less, before making his will was publicly known to be insane, the person who maintains the validity of the will must prove that the testator made it during a lucid interval." According to Article 799, the three things that the testator must have the ability to know to be considered of sound mind are as follows: (1) the nature of the estate to be disposed of, (2) the proper objects of the testators bounty, and (3) the character of the testamentary act. Applying this test to the present case, we find that the appellate court was correct in holding that Placido had testamentary capacity at the time of the execution of his will. It must be noted that despite his advanced age, he was still able to identify accurately the kinds of property he owned, the extent of his shares in them and even their locations. As regards the proper objects of his bounty, it was sufficient that he identified his wife as sole beneficiary. As we have stated earlier, the omission of some relatives from the will did not affect its formal validity. There being no showing of fraud in its execution, intent in its disposition becomes irrelevant. Worth reiterating in determining soundness of mind is Alsua-Betts v. CA,25 which held thus: "Between the highest degree of soundness of mind and memory which unquestionably carries with it full testamentary capacity, and that degrees of mental aberration generally known as insanity or idiocy, there are numberless degrees of mental capacity or incapacity and while on one hand it has been held that mere weakness of mind, or partial imbecility from disease of body, or from age, will not render a person incapable of making a will; a weak or feebleminded person may make a valid will, provided he has understanding and memory sufficient to enable him to know what he is about to do and how or to whom he is disposing of his property. To constitute a sound and disposing mind, it is not necessary that the mind be unbroken or unimpaired or unshattered by disease or otherwise. It has been held that testamentary incapacity does not necessarily require that a person shall actually be insane or of unsound mind."26 WHEREFORE, the Petition is DENIED, and the assailed Decision and Resolution of the Court of Appeals areAFFIRMED. Costs against petitioner. SO ORDERED. ARTEMIO V. PANGANIBAN Associate Justice

EN BANC G.R. No. L-4067 November 29, 1951

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner, vs. JULIANA LACUESTA, ET AL., respondents. Elviro L. Peralta and Hermenegildo A. Prieto for petitioner. Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents. PARAS, C.J.: This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado dated January 3, 1943. The will is written in the Ilocano dialect and contains the following attestation clause: We, the undersigned, by these presents to declare that the foregoing testament of Antero Mercado was signed by himself and also by us below his name and of this attestation clause and that of the left margin of the three pages thereof. Page three the continuation of this attestation clause; this will is written in Ilocano dialect which is spoken and understood by the testator, and it bears the corresponding number in letter which compose of three pages and all them were signed in the presence of the testator and witnesses, and the witnesses in the presence of the testator and all and each and every one of us witnesses. In testimony, whereof, we sign this statement, this the third day of January, one thousand nine hundred forty three, (1943) A.D. (Sgd.) NUMERIANO EVANGELISTA (Sgd.) BIBIANA ILLEGIBLE The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero Mercado, followed below by "A reugo del testator" and the name of Florentino Javier. Antero Mercado is alleged to have written a cross immediately after his name. The Court of Appeals, reversing the judgement of the Court of First Instance of Ilocos Norte, ruled that the attestation clause failed (1) to certify that the will was signed on all the left margins of the three pages and at the end of the will by Atty. Florentino Javier at the express request of the testator in the presence of the testator and each and every one of the witnesses; (2) to certify that after the signing of the name of the testator by Atty. Javier at the former's request said testator has written a cross at the end of his name and on the left margin of the three pages of which the will consists and at the end thereof; (3) to certify that the three witnesses signed the will in all the pages thereon in the presence of the testator and of each other. In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado caused Atty. Florentino Javier to write the testator's name under his express direction, as required by section 618 of the Code of Civil Procedure. The herein petitioner (who is appealing by way of certiorari from the decision of the Court of Appeals) argues, however, that there is no need for such recital because the cross written by the testator after (Sgd.) "ROSENDA CORTES

his name is a sufficient signature and the signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is that the cross is as much a signature as a thumbmark, the latter having been held sufficient by this Court in the cases of De Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429. It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado or even one of the ways by which he signed his name. After mature reflection, we are not prepared to liken the mere sign of the cross to a thumbmark, and the reason is obvious. The cross cannot and does not have the trustworthiness of a thumbmark. What has been said makes it unnecessary for us to determine there is a sufficient recital in the attestation clause as to the signing of the will by the testator in the presence of the witnesses, and by the latter in the presence of the testator and of each other. Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So ordered. Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista Angelo, JJ., concur.

EN BANC G.R. No. 1641 January 19, 1906

GERMAN JABONETA, plaintiff-appellant, vs. RICARDO GUSTILO, ET AL., defendants-appellees. Ledesma, Sumulong and Quintos for appellant. Del-Pan, Ortigas and Fisher for appellees. CARSON, J.: In these proceedings probate was denied the last will and testament of Macario Jaboneta, deceased, because the lower court was of the opinion from the evidence adduced at the hearing that Julio Javellana, one of the witnesses, did not attach his signature thereto in the presence of Isabelo Jena, another of the witnesses, as required by the provisions of section 618 of the Code of Civil Procedure. The following is a copy of the evidence which appears of record on this particular point, being a part of the testimony of the said Isabeo Jena: Q. A. Q. 1641 1641 1641 Who first signed the will? I signed it first, and afterwards Aniceto and the others. Who were those others to whom you have just referred?

A. 1641 After the witness Aniceto signed the will I left the house, because I was in a hurry, and at the moment when I was leaving I saw Julio Javellana with the pen in his hand in position ready to sign (en actitud de firmar). I believe he signed, because he was at the table. . . . Q. 1641 State positively whether Julio Javellana did or did not sign as a witness to the will. A. 1641 I can't say certainly, because as I was leaving the house I saw Julio Javellana with the pen in his hand, in position ready to sign. I believe he signed. Q. 1641 Why do you believe Julio Javellana signed?

A. 1641 Because he had the pen in his hand, which was resting on the paper, though I did not actually see him sign. Q. 1641 Explain this contradictory statement.

A. 1641 After I signed I asked permission to leave, because I was in a hurry, and while I was leaving Julio had already taken the pen in his hand, as it appeared, for the purpose of signing, and when I was near the door I happened to turn my face

and I saw that he had his hand with the pen resting on the will, moving it as if for the purpose of signing. Q. 1641 State positively whether Julio moved his hand with the pen as if for the purpose of signing, or whether he was signing A. I believe he was signing.

The truth and accuracy of the testimony of this witness does not seem to have been questioned by any of the parties to the proceedings, but the court, nevertheless, found the following facts: On the 26th day of December, 1901, Macario Jaboneta executed under the following circumstances the document in question, which has been presented for probate as his will: Being in the house of Arcadio Jarandilla, in Jaro, in this province, he ordered that the document in question be written, and calling Julio Javellana, Aniceto Jalbuena, and Isabelo Jena as witnesses, executed the said document as his will. They were all together, and were in the room where Jaboneta was, and were present when he signed the document, Isabelo Jena signing afterwards as a witness, at his request, and in his presence and in the presence of the other two witnesses. Aniceto Jalbuena then signed as a witness in the presence of the testator, and in the presence of the other two persons who signed as witnesses. At that moment Isabelo Jena, being in a hurry to leave, took his hat and left the room. As he was leaving the house Julio Javellana took the pen in his hand and put himself in position to sign the will as a witness, but did not sign in the presence of Isabelo Jena; but nevertheless, after Jena had left the room the said Julio Javellana signed as a witness in the presence of the testator and of the witness Aniceto Jalbuena. We can not agree with so much of the above finding of facts as holds that the signature of Javellana was not signed in the presence of Jena, in compliance with the provisions of section 618 of the Code of Civil Procedure. The fact that Jena was still in the room when he saw Javellana moving his hand and pen in the act of affixing his signature to the will, taken together with the testimony of the remaining witnesses which shows that Javellana did in fact there and then sign his name to the will, convinces us that the signature was affixed in the presence of Jena. The fact that he was in the act of leaving, and that his back was turned while a portion of the name of the witness was being written, is of no importance. He, with the other witnesses and the testator, had assembled for the purpose of executing the testament, and were together in the same room for that purpose, and at the moment when the witness Javellana signed the document he was actually and physically present and in such position with relation to Javellana that he could see everything which took place by merely casting his eyes in the proper direction, and without any physical obstruction to prevent his doing so, therefore we are of opinion that the document was in fact signed before he finally left the room. The purpose of a statutory requirement that the witness sign in the presence of the testator is said to be that the testator may have ocular evidence of the identity of the instrument subscribed by the witness and himself, and the generally accepted tests of presence are vision and mental apprehension. (See Am. & Eng. Enc. of Law, vol. 30, p. 599, and cases there cited.)

In the matter of Bedell (2 Connoly (N.Y.), 328) it was held that it is sufficient if the witnesses are together for the purpose of witnessing the execution of the will, and in a position to actually see the testator write, if they choose to do so; and there are many cases which lay down the rule that the true test of vision is not whether the testator actually saw the witness sign, but whether he might have seen him sign, considering his mental and physical condition and position at the time of the subscription. (Spoonemore vs. Cables, 66 Mo., 579.) The principles on which these cases rest and the tests of presence as between the testator and the witnesses are equally applicable in determining whether the witnesses signed the instrument in the presence of each other, as required by the statute, and applying them to the facts proven in these proceedings we are of opinion that the statutory requisites as to the execution of the instrument were complied with, and that the lower court erred in denying probate to the will on the ground stated in the ruling appealed from. We are of opinion from the evidence of record that the instrument propounded in these proceedings was satisfactorily proven to be the last will and testament of Macario Jaboneta, deceased, and that it should therefore be admitted to probate. The judgment of the trial court is reversed, without especial condemnation of costs, and after twenty days the record will be returned to the court form whence it came, where the proper orders will be entered in conformance herewith. So ordered. Arellano, C.J., Torres, Mapa, and Johnson, JJ., concur.

EN BANC G.R. No. L-20357 November 25, 1967

IN THE MATTER OF THE PETITION FOR THE ALLOWANCE OF THE WILL OF GREGORIO GATCHALIAN, deceased. PEDRO REYES GARCIA, petitioner-appellant, vs. FELIPE GATCHALIAN, AURORA G. CAMINS, ANGELES G. COSCA, FEDERICO G. TUBOG, VIRGINIA G. TALANAY and ANGELES G. TALANAY, oppositors-appellees. E. Debuque for petitioner-appellant. E. L. Segovia for oppositors-appellees. DIZON, J.: This is an appeal taken by Pedro Reyes Garcia from the decision of the Court of First Instance of Rizal in Special Proceedings No. 2623 denying the allowance of the will of the late Gregorio Gatchalian, on the ground that the attesting witnesses did not acknowledge it before a notary public, as required by law. On March 15, 1967, Gregorio Gatchalian, a widower of 71 years of age, died in the municipality of Pasig, Province of Rizal, leaving no forced heirs. On April 2 of the same year, appellant filed a petition with the above named court for the probate of said alleged will (Exhibit "C") wherein he was instituted as sole heir. Felipe Gatchalian, Aurora G. Camins, Angeles G. Cosca, Federico G. Tubog, Virginia G. Talanay and Angeles G. Talanay, appellees herein, opposed the petition on the ground, among others, that the will was procured by fraud; that the deceased did not intend the instrument signed by him to be as his will; and that the deceased was physically and mentally incapable of making a will at the time of the alleged execution of said will. After due trial, the court rendered the appealed decision finding the document Exhibit "C" to be the authentic last will of the deceased but disallowing it for failure to comply with the mandatory requirement of Article 806 of the New Civil Code that the will must be acknowledged before a notary public by the testator and the witnesses. An examination of the document (Exhibit "C") shows that the same was acknowledged before a notary public by the testator but not by the instrumental witnesses. Article 806 of the New Civil Code reads as follows: Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court. We have held heretofore that compliance with the requirement contained in the above legal provision to the effect that a will must be acknowledged before a notary public by the testator and also by the witnesses is indispensable for its validity (In re: Testate Estate of Alberto, G. R. No. L-11948, April 29, 1959). As the document under consideration does not comply with this requirement, it is obvious that the same may not be probated.

WHEREFORE, the decision appealed from is affirmed, with costs. Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur. Concepcion, C.J., and Reyes, J.B.L., J., took no part.

FIRST DIVISION G.R. No. L-32213 November 26, 1973 AGAPITA N. CRUZ, petitioner, vs. HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of First Instance of Cebu, and MANUEL B. LUGAY, respondents. Paul G. Gorrez for petitioner. Mario D. Ortiz for respondent Manuel B. Lugay. ESGUERRA, J.: Petition to review on certiorari the judgment of the Court First Instance of Cebu allowing the probate of the last will a testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said decease opposed the allowance of the will (Exhibit "E"), alleging the will was executed through fraud, deceit, misrepresentation and undue influence; that the said instrument was execute without the testator having been fully informed of the content thereof, particularly as to what properties he was disposing and that the supposed last will and testament was not executed in accordance with law. Notwithstanding her objection, the Court allowed the probate of the said last will and testament Hence this appeal by certiorari which was given due course. The only question presented for determination, on which the decision of the case hinges, is whether the supposed last will and testament of Valente Z. Cruz (Exhibit "E") was executed in accordance with law, particularly Articles 805 and 806 of the new Civil Code, the first requiring at least three credible witnesses to attest and subscribe to the will, and the second requiring the testator and the witnesses to acknowledge the will before a notary public. Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr. Francisco Paares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the Notary Public before whom the will was supposed to have been acknowledged. Reduced to simpler terms, the question was attested and subscribed by at least three credible witnesses in the presence of the testator and of each other, considering that the three attesting witnesses must appear before the notary public to acknowledge the same. As the third witness is the notary public himself, petitioner argues that the result is that only two witnesses appeared before the notary public to acknowledge the will. On the other hand, private respondent-appellee, Manuel B. Lugay, who is the supposed executor of the will, following the reasoning of the trial court, maintains that there is substantial compliance with the legal requirement of having at least three attesting witnesses even if the notary public acted as one of them, bolstering up his stand with 57 American Jurisprudence, p. 227 which, insofar as pertinent, reads as follows: It is said that there are, practical reasons for upholding a will as against the purely technical reason that one of the witnesses required by law signed as certifying to an acknowledgment of the testator's signature under oath rather than as attesting the execution of the instrument.

After weighing the merits of the conflicting claims of the parties, We are inclined to sustain that of the appellant that the last will and testament in question was not executed in accordance with law. The notary public before whom the will was acknowledged cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the will. To acknowledge before means to avow (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100 Phil. 239, 247); to own as genuine, to assent, to admit; and "before" means in front or preceding in space or ahead of. (The New Webster Encyclopedic Dictionary of the English Language, p. 72; Funk & Wagnalls New Standard Dictionary of the English Language, p. 252; Webster's New International Dictionary 2d. p. 245.) Consequently, if the third witness were the notary public himself, he would have to avow assent, or admit his having signed the will in front of himself. This cannot be done because he cannot split his personality into two so that one will appear before the other to acknowledge his participation in the making of the will. To permit such a situation to obtain would be sanctioning a sheer absurdity. Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral arrangement Balinon v. De Leon, 50 0. G. 583.) That function would defeated if the notary public were one of the attesting instrumental witnesses. For them he would be interested sustaining the validity of the will as it directly involves him and the validity of his own act. It would place him in inconsistent position and the very purpose of acknowledgment, which is to minimize fraud (Report of Code Commission p. 106-107), would be thwarted. Admittedly, there are American precedents holding that notary public may, in addition, act as a witness to the executive of the document he has notarized. (Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his signing merely as notary in a will nonetheless makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback, 122 So. 496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 A. 721;See also Trenwith v. Smallwood, 15 So. 1030). But these authorities do not serve the purpose of the law in this jurisdiction or are not decisive of the issue herein because the notaries public and witnesses referred to aforecited cases merely acted as instrumental, subscribing attesting witnesses, and not as acknowledging witnesses. He the notary public acted not only as attesting witness but also acknowledging witness, a situation not envisaged by Article 805 of the Civil Code which reads: ART. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will or file another with the office of the Clerk of Court. [Emphasis supplied] To allow the notary public to act as third witness, or one the attesting and acknowledging witnesses, would have the effect of having only two attesting witnesses to the will which would be in contravention of the provisions of Article 80 be requiring at least three credible witnesses to act as such and of Article 806 which requires that the testator and the required number of witnesses must appear before the notary public to acknowledge the will. The result would be, as has been said, that only two witnesses appeared before the notary public for or that purpose. In the circumstances, the law would not be duly in observed. FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate of the last will and testament of Valente Z. Cruz (Exhibit "E") is declared not valid and hereby set aside.

Cost against the appellee.

EN BANC G.R. No. L-12190 August 30, 1958

TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E. GAN, petitioner-appellant, vs. ILDEFONSO YAP, oppositor-appellee. Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for appellant. Arturo M. Tolentino for appellee. BENGZON, J.: On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of Santo Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila. On March 17, 1952, Fausto E. Gan initiated them proceedings in the Manila court of first instance with a petition for the probate of a holographic will allegedly executed by the deceased, substantially in these words: Nobyembre 5, 1951. Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay nagsasalaysay na ang aking kayamanan sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking mga kamag-anakang sumusunod: Vicente Esguerra, Sr. ............................................. Fausto E. Gan ......................................................... Rosario E. Gan ......................................................... Filomena Alto .......................................................... 5 Bahagi 2 Bahagi 2 Bahagi 1 Bahagi

Beatriz 1 Bahagi Alto .............................................................. At ang aking lahat ng ibang kayamanan sa Maynila at iba panglugar ay aking ipinamamana sa aking asawang si Idelfonso D. Yap sa kondisyong siya'y magpapagawa ng isang Health Center na nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa bayan ng Pulilan, Bulacan, na nakaukit ang aking pangalang Felicidad Esguerra-Alto. At kung ito ay may kakulangan man ay bahala na ang aking asawa ang magpuno upang matupad ang aking kagustuhan. (Lagda) Felicidad E. Alto-Yap.

Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not left any will, nor executed any testament during her lifetime. After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose, Judge,1 refused to probate the alleged will. A seventy-page motion for reconsideration failed. Hence this appeal. The will itself was not presented. Petitioner tried to establish its contents and due execution by the statements in open court of Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan Jimenez, whose testimonies may be summarized as follows: Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first cousin, Vicente Esguerra, her desire to make a will. She confided however that it would be useless if her husband discovered or knew about it. Vicente consulted with Fausto E. Gan, nephew of Felicidad, who was then preparing for the bar examinations. The latter replied it could be done without any witness, provided the document was entirely in her handwriting, signed and dated by her. Vicente Esguerra lost no time in transmitting the information, and on the strength of it, in the morning of November 5, 1951, in her residence at Juan Luna Street, Manila, Felicidad wrote, signed and dated a holographic will substantially of the tenor above transcribed, in the presence of her niece, Felina Esguerra (daughter of Vicente), who was invited to read it. In the afternoon of that day, Felicidad was visited by a distant relative, Primitivo Reyes, and she allowed him to read the will in the presence of Felina Esguerra, who again read it. Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan Jimenez, a niece. To these she showed the will, again in the presence of Felina Esguerra, who read it for the third time. When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last illness, she entrusted the said will, which was contained in a purse, to Felina Esguerra. But a few hours later, Ildefonso Yap, her husband, asked Felina for the purse: and being afraid of him by reason of his well-known violent temper, she delivered it to him. Thereafter, in the same day, Ildefonso Yap returned the purse to Felina, only to demand it the next day shortly before the death of Felicidad. Again, Felina handed it to him but not before she had taken the purse to the toilet, opened it and read the will for the last time.2 From the oppositor's proof it appears that Felicidad Esguerra had been suffering from heart disease for several years before her death; that she had been treated by prominent physicians, Dr. Agerico Sison, Dr. Agustin Liboro and others; that in May 1950 husband and wife journeyed to the United States wherein for several weeks she was treated for the disease; that thereafter she felt well and after visiting interesting places, the couple returned to this country in August 1950. However, her ailment recurred, she suffered several attacks, the most serious of which happened in the early morning of the first Monday of November 1951 (Nov. 5). The whole household was surprised and alarmed, even the teachers of the Harvardian Colleges occupying the lower floors and of by the Yap spouses. Physician's help was hurriedly called, and Dr. Tanjuaquio arrived at about 8:00 a.m., found the patient hardly breathing, lying in bed, her head held high by her husband. Injections and oxygen were administered. Following the doctor's advice the patient stayed in bed, and did nothing the whole day, her husband and her personal attendant, Mrs. Bantique, constantly at her side. These two persons swore that Mrs. Felicidad Esguerra Yap made no will, and could have made no will on that day.

The trial judge refused to credit the petitioner's evidence for several reasons, the most important of which were these: (a) if according to his evidence, the decedent wanted to keep her will a secret, so that her husband would not know it, it is strange she executed it in the presence of Felina Esguerra, knowing as she did that witnesses were unnecessary; (b) in the absence of a showing that Felina was a confidant of the decedent it is hard to believe that the latter would have allowed the former to see and read the will several times; (c) it is improbable that the decedent would have permitted Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte to read her will, when she precisely wanted its contents to remain a secret during her lifetime; (d) it is also improbable that her purpose being to conceal the will from her husband she would carry it around, even to the hospital, in her purse which could for one reason or another be opened by her husband; (e) if it is true that the husband demanded the purse from Felina in the U.S.T. Hospital and that the will was there, it is hard to believe that he returned it without destroying the will, the theory of the petitioner being precisely that the will was executed behind his back for fear he will destroy it. In the face of these improbabilities, the trial judge had to accept the oppositor's evidence that Felicidad did not and could not have executed such holographic will. In this appeal, the major portion of appellant's brief discussed the testimony of the oppositor and of his witnesses in a vigorous effort to discredit them. It appears that the same arguments, or most of them, were presented in the motion to reconsider; but they failed to induce the court a quo to change its mind. The oppositor's brief, on the other hand, aptly answers the criticisms. We deem it unnecessary to go over the same matters, because in our opinion the case should be decided not on the weakness of the opposition but on the strength of the evidence of the petitioner, who has the burden of proof. The Spanish Civil Code permitted the execution of holographic wills along with other forms. The Code of Civil Procedure (Act 190) approved August 7, 1901, adopted only one form, thereby repealing the other forms, including holographic wills. The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form and may be made in or out of the Philippines, and need not be witnessed." This is indeed a radical departure from the form and solemnities provided for wills under Act 190, which for fifty years (from 1901 to 1950) required wills to be subscribed by the testator and three credible witnesses in each andevery page; such witnesses to attest to the number of sheets used and to the fact that the testator signed in their presence and that they signed in the presence of the testator and of each other. The object of such requirements it has been said, is to close the door against bad faith and fraud, to prevent substitution of wills, to guarantee their truth and authencity (Abangan vs. Abangan, 40 Phil., 476) and to avoid those who have no right to succeed the testator would succeed him and be benefited with the probate of same. (Mendoza vs. Pilapil, 40 Off. Gaz., 1855). However, formal imperfections may be brushed aside when authenticity of the instrument is duly proved. (Rodriguez vs Yap, 40 Off. Gaz. 1st Supp. No. 3 p. 194.) Authenticity and due execution is the dominant requirements to be fulfilled when such will is submitted to the courts for allowance. For that purpose the testimony of one of the subscribing witnesses would be sufficient if there is no opposition (Sec. 5, Rule 77). If there is, the three must testify, if available. (Cabang vs. Delfinado, 34 Phil., 291;

Tolentino vs. Francisco, 57 Phil., 742). From the testimony of such witnesses (and of other additional witnesses) the court may form its opinion as to the genuineness and authenticity of the testament, and the circumstances its due execution. Now, in the matter of holographic wills, no such guaranties of truth and veracity are demanded, since as stated, they need no witnesses; provided however, that they are "entirely written, dated, and signed by the hand of the testator himself." The law, it is reasonable to suppose, regards the document itself as material proof of authenticity, and as its own safeguard, since it could at any time, be demonstrated to be or not to be in the hands of the testator himself. "In the probate of a holographic will" says the New Civil Code, "it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three such witnesses shall be required. In the absence of any such witnesses, (familiar with decedent's handwriting) and if the court deem it necessary, expert testimony may be resorted to." The witnesses so presented do not need to have seen the execution of the holographic will. They may be mistaken in their opinion of the handwriting, or they may deliberately lie in affirming it is in the testator's hand. However, the oppositor may present other witnesses who also know the testator's handwriting, or some expert witnesses, who after comparing the will with other writings or letters of the deceased, have come to the conclusion that such will has not been written by the hand of the deceased. (Sec. 50, Rule 123). And the court, in view of such contradictory testimony may use its own visual sense, and decide in the face of the document, whether the will submitted to it has indeed been written by the testator. Obviously, when the will itself is not submitted, these means of opposition, and of assessing the evidence are not available. And then the only guaranty of authenticity3 the testator's handwriting has disappeared. Therefore, the question presents itself, may a holographic will be probated upon the testimony of witnesses who have allegedly seen it and who declare that it was in the handwriting of the testator? How can the oppositor prove that such document was not in the testator's handwriting? His witnesses who know testator's handwriting have not examined it. His experts can not testify, because there is no way to compare the alleged testament with other documents admittedly, or proven to be, in the testator's hand. The oppositor will, therefore, be caught between the upper millstone of his lack of knowledge of the will or the form thereof, and the nether millstone of his inability to prove its falsity. Again the proponent's witnesses may be honest and truthful; but they may have been shown a faked document, and having no interest to check the authenticity thereof have taken no pains to examine and compare. Or they may be perjurers boldly testifying, in the knowledge that none could convict them of perjury, because no one could prove that they have not "been shown" a document which they believed was in the handwriting of the deceased. Of course, the competency of such perjured witnesses to testify as to the handwriting could be tested by exhibiting to them other writings sufficiently similar to those written by the deceased; but what witness or lawyer would not foresee such a move and prepare for it? His knowledge of the handwriting established, the witness (or witnesses) could simply stick to his statement: he has seen and read a document which he believed was in the deceased's handwriting. And the court and the oppositor would practically be at the mercy of such witness (or witnesses) not only as to the execution, but also as to the contents of the will. Does the law permit such a situation?

The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of a lost or destroyed will by secondary evidence the testimony of witnesses, in lieu of the original document. Yet such Rules could not have contemplated holographic wills which could not then be validly made here. (See also Sec. 46, Rule 123; Art. 830-New Civil Code.) Could Rule 77 be extended, by analogy, to holographic wills? Spanish commentators agree that one of the greatest objections to the holographic will is that it may be lost or stolen4 an implied admission that such loss or theft renders it useless.. This must be so, because the Civil Code requires it to be protocoled and presented to the judge, (Art. 689) who shall subscribe it and require its identity to be established by the three witnesses who depose that they have no reasonable doubt that the will was written by the testator (Art. 691). And if the judge considers that the identity of the will has been proven he shall order that it be filed (Art. 693). All these, imply presentation of the will itself. Art. 692 bears the same implication, to a greater degree. It requires that the surviving spouse and the legitimate ascendants and descendants be summoned so that they may make "any statement they may desire to submit with respect to the authenticity of the will." As it is universally admitted that the holographic will is usually done by the testator and by himself alone, to prevent others from knowing either its execution or its contents, the above article 692 could not have the idea of simply permitting such relatives to state whether they know of the will, but whetherin the face of the document itself they think the testator wrote it. Obviously, this they can't do unless the will itself is presented to the Court and to them. Undoubtedly, the intention of the law is to give the near relatives the choice of either complying with the will if they think it authentic, or to oppose it, if they think it spurious.5 Such purpose is frustrated when the document is not presented for their examination. If it be argued that such choice is not essential, because anyway the relatives may oppose, the answer is that their opposition will be at a distinct disadvantage, and they have the right and privilegeto comply with the will, if genuine, a right which they should not be denied by withholding inspection thereof from them. We find confirmation of these ideas--about exhibition of the document itself--in the decision of the Supreme Court of Spain of June 5, 1925, which denied protocolization or probate to a document containing testamentary dispositions in the handwriting of the deceased, but apparently mutilated, the signature and some words having been torn from it. Even in the face of allegations and testimonial evidence (which was controverted), ascribing the mutilation to the opponents of the will. The aforesaid tribunal declared that, in accordance with the provision of the Civil Code (Spanish) the will itself, whole and unmutilated, must be presented; otherwise, it shall produce no effect. Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del articulo 688 del Codigo civil, que para que sea valido el testamento olografo debera estar escrito todo el y firmado por testador, con expression del ao, mes y dia en que se otorque, resulta evidente que para la validez y eficacia de esos testamentos, no basta la demostracion mas o menos cumplida de que cuando se otorgaron se Ilenaron todos esos requisitos, sino que de la expresada redaccion el precepto legal, y por el tiempo en que el verbo se emplea, se desprende la necesidad de que el documento se encuentre en dichas condiciones en el momento de ser presentado a la Autoridad competente, para au adveracion y protocolizacion; y como consecuencia ineludible de ello, forzoso es affirmar que el de autos carece de

validez y aficacia, por no estarfirmado por el testador, cualquiera que sea la causa de la falta de firma, y sin perjuicio de las acciones que puedan ejercitar los perjudicados, bien para pedir indemnizacion por el perjuicio a la persona culpable, si la hubiere, o su castigo en via criminal si procediere, por constituir dicha omision un defecto insubsanable . . . . This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the basis of the Spanish Civil Code provisions on the matter.6 PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V, ley 15--E depues que los herederos e sus fijos ovieren esta manda, fasta ... annos muestrenla al obispo de la tierra, o al juez fasta VI meses y el obispo o el juez tomen otros tales tres escritos, que fuesen fechos por su mano daquel que fizo la manda; e por aquellos escriptos, si semjara la letra de la manda, sea confirmada la manda. E depues que todo esto fuere connoscido, el obispo o el juez, o otras testimonios confirmen el escripto de la manda otra vez, y en esta manera vala la manda. (Art. 689, Scaevola--Codigo Civil.) (According to the Fuero above, the will itself must be compared with specimens of the testators handwriting.) All of which can only mean: the courts will not distribute the property of the deceased in accordance with his holographic will, unless they are shown his handwriting and signature. 7 Parenthetically, it may be added that even the French Civil Law considers the loss of the holographic will to be fatal. (Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz Cruz, 1946, Tomo V, page 555). Taking all the above circumstances together, we reach the conclusion that the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will.8 Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this opinion as a Rule of Court for the allowance of such holographic wills. We hesitate, however, to make this Rule decisive of this controversy, simultaneously with its promulgation. Anyway, decision of the appeal may rest on the sufficiency, rather the insufficiency, of the evidence presented by petitioner Fausto E. Gan. At this point, before proceeding further, it might be convenient to explain why, unlike holographic wills, ordinary wills may be proved by testimonial evidence when lost or destroyed. The difference lies in the nature of the wills. In the first, the only guarantee of authenticity is the handwriting itself; in the second, the testimony of the subscribing or instrumental witnesses (and of the notary, now). The loss of the holographic will entails the loss of the only medium of proof; if the ordinary will is lost, the subscribing witnesses are available to authenticate. In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary) deliberately to lie. And then their lies could be checked and exposed, their whereabouts and acts on the particular day, the likelihood that they would be called by the testator, their intimacy with the testator, etc. And if they were intimates or trusted friends of the testator they are not likely to end themselves to any fraudulent scheme to distort his wishes. Last but not least, they can not receive anything on account of the will.

Whereas in the case of holographic wills, if oral testimony were admissible9 only one man could engineer the fraud this way: after making a clever or passable imitation of the handwriting and signature of the deceased, he may contrive to let three honest and credible witnesses see and read the forgery; and the latter, having no interest, could easily fall for it, and in court they would in all good faith affirm its genuineness and authenticity. The will having been lost the forger may have purposely destroyed it in an "accident" the oppositors have no way to expose the trick and the error, because the document itself is not at hand. And considering that the holographic will may consist of two or three pages, and only one of them need be signed, the substitution of the unsigned pages, which may be the most important ones, may go undetected. If testimonial evidence of holographic wills be permitted, one more objectionable feature feasibility of forgery would be added to the several objections to this kind of wills listed by Castan, Sanchez Roman and Valverde and other well-known Spanish Commentators and teachers of Civil Law.10 One more fundamental difference: in the case of a lost will, the three subscribing witnesses would be testifying to a fact which they saw, namely the act of the testator of subscribing the will; whereas in the case of a lost holographic will, the witnesses would testify as to their opinion of the handwriting which they allegedly saw, an opinion which can not be tested in court, nor directly contradicted by the oppositors, because the handwriting itself is not at hand. Turning now to the evidence presented by the petitioner, we find ourselves sharing the trial judge's disbelief. In addition to the dubious circumstances described in the appealed decision, we find it hard to believe that the deceased should show her will precisely to relatives who had received nothing from it: Socorro Olarte and Primitivo Reyes. These could pester her into amending her will to give them a share, or threaten to reveal its execution to her husband Ildefonso Yap. And this leads to another point: if she wanted so much to conceal the will from her husband, why did she not entrust it to her beneficiaries? Opportunity to do so was not lacking: for instance, her husband's trip to Davao, a few days after the alleged execution of the will. In fine, even if oral testimony were admissible to establish and probate a lost holographic will, we think the evidence submitted by herein petitioner is so tainted with improbabilities and inconsistencies that it fails to measure up to that "clear and distinct" proof required by Rule 77, sec. 6.11 Wherefore, the rejection of the alleged will must be sustained. Judgment affirmed, with costs against petitioner. Paras, C. J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes, J. B. L., Endencia and Felix, JJ., concur.

FIRST DIVISION G.R. No. L-58509 December 7, 1982 IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA deceased, MARCELA RODELAS, petitioner-appellant, vs. AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor. Luciano A. Joson for petitioner-appellant. Cesar Paralejo for oppositor-appellee.

RELOVA, J.: This case was certified to this Tribunal by the Court of Appeals for final determination pursuant to Section 3, Rule 50 of the Rules of Court. As found by the Court of Appeals: ... On January 11, 1977, appellant filed a petition with the Court of First Instance of Rizal for the probate of the holographic will of Ricardo B. Bonilla and the issuance of letters testamentary in her favor. The petition, docketed as Sp. Proc. No. 8432, was opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes Expedita Bonilla Frias and Ephraim Bonilla on the following grounds: (1) Appellant was estopped from claiming that the deceased left a will by failing to produce the will within twenty days of the death of the testator as required by Rule 75, section 2 of the Rules of Court; (2) The alleged copy of the alleged holographic will did not contain a disposition of property after death and was not intended to take effect after death, and therefore it was not a will (3) The alleged hollographic will itself,and not an alleged copy thereof, must be produced, otherwise it would produce no effect, as held in Gam v. Yap, 104 Phil. 509; and (4 ) The deceased did not leave any will, holographic or otherwise, executed and attested as required by law. The appellees likewise moved for the consolidation of the case with another case Sp. Proc. No, 8275). Their motion was granted by the court in an order dated April 4, 1977.

On November 13, 1978, following the consolidation of the cases, the appellees moved again to dismiss the petition for the probate of the will. They argued that: (1) The alleged holographic was not a last will but merely an instruction as to the management and improvement of the schools and colleges founded by decedent Ricardo B. Bonilla; and (2) Lost or destroyed holographic wills cannot be proved by secondary evidence unlike ordinary wills. Upon opposition of the appellant, the motion to dismiss was denied by the court in its order of February 23, 1979. The appellees then filed a motion for reconsideration on the ground that the order was contrary to law and settled pronouncements and rulings of the Supreme Court, to which the appellant in turn filed an opposition. On July 23, 1979, the court set aside its order of February 23, 1979 and dismissed the petition for the probate of the will of Ricardo B. Bonilla. The court said: ... It is our considered opinion that once the original copy of the holographic will is lost, a copy thereof cannot stand in lieu of the original. In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in the matter of holographic wills the law, it is reasonable to suppose, regards the document itself as the material proof of authenticity of said wills. MOREOVER, this Court notes that the alleged holographic will was executed on January 25, 1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the lapse of more than 14 years from the time of the execution of the will to the death of the decedent, the fact that the original of the will could not be located shows to our mind that the decedent had discarded before his death his allegedly missing Holographic Will. Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in which it is contended that the dismissal of appellant's petition is contrary to law and wellsettled jurisprudence. On July 7, 1980, appellees moved to forward the case to this Court on the ground that the appeal does not involve question of fact and alleged that the trial court committed the following assigned errors: I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY THEREOF; II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL; III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.

The only question here is whether a holographic will which was lost or cannot be found can be proved by means of a photostatic copy. Pursuant to Article 811 of the Civil Code, probate of holographic wills is the allowance of the will by the court after its due execution has been proved. The probate may be uncontested or not. If uncontested, at least one Identifying witness is required and, if no witness is available, experts may be resorted to. If contested, at least three Identifying witnesses are required. However, if the holographic will has been lost or destroyed and no other copy is available, the will can not be probated because the best and only evidence is the handwriting of the testator in said will. It is necessary that there be a comparison between sample handwritten statements of the testator and the handwritten will. But, a photostatic copy or xerox copy of the holographic will may be allowed because comparison can be made with the standard writings of the testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that "the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court," Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be admitted because then the authenticity of the handwriting of the deceased can be determined by the probate court. WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's motion for reconsideration dated August 9, 1979, of the Order dated July 23, 1979, dismissing her petition to approve the will of the late Ricardo B. Bonilla, is hereby SET ASIDE. SO ORDERED. Teehankee, Actg. C.J., Melencio-Herrera, Plana, Vasquez and Gutierrez, Jr., JJ., concur.

FIRST DIVISION G.R. No. L-58509 December 7, 1982 IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA deceased, MARCELA RODELAS, petitioner-appellant, vs. AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor. Luciano A. Joson for petitioner-appellant. Cesar Paralejo for oppositor-appellee.

RELOVA, J.: This case was certified to this Tribunal by the Court of Appeals for final determination pursuant to Section 3, Rule 50 of the Rules of Court. As found by the Court of Appeals: ... On January 11, 1977, appellant filed a petition with the Court of First Instance of Rizal for the probate of the holographic will of Ricardo B. Bonilla and the issuance of letters testamentary in her favor. The petition, docketed as Sp. Proc. No. 8432, was opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes Expedita Bonilla Frias and Ephraim Bonilla on the following grounds: (1) Appellant was estopped from claiming that the deceased left a will by failing to produce the will within twenty days of the death of the testator as required by Rule 75, section 2 of the Rules of Court; (2) The alleged copy of the alleged holographic will did not contain a disposition of property after death and was not intended to take effect after death, and therefore it was not a will (3) The alleged hollographic will itself,and not an alleged copy thereof, must be produced, otherwise it would produce no effect, as held in Gam v. Yap, 104 Phil. 509; and (4 ) The deceased did not leave any will, holographic or otherwise, executed and attested as required by law. The appellees likewise moved for the consolidation of the case with another case Sp. Proc. No, 8275). Their motion was granted by the court in an order dated April 4, 1977.

On November 13, 1978, following the consolidation of the cases, the appellees moved again to dismiss the petition for the probate of the will. They argued that: (1) The alleged holographic was not a last will but merely an instruction as to the management and improvement of the schools and colleges founded by decedent Ricardo B. Bonilla; and (2) Lost or destroyed holographic wills cannot be proved by secondary evidence unlike ordinary wills. Upon opposition of the appellant, the motion to dismiss was denied by the court in its order of February 23, 1979. The appellees then filed a motion for reconsideration on the ground that the order was contrary to law and settled pronouncements and rulings of the Supreme Court, to which the appellant in turn filed an opposition. On July 23, 1979, the court set aside its order of February 23, 1979 and dismissed the petition for the probate of the will of Ricardo B. Bonilla. The court said: ... It is our considered opinion that once the original copy of the holographic will is lost, a copy thereof cannot stand in lieu of the original. In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in the matter of holographic wills the law, it is reasonable to suppose, regards the document itself as the material proof of authenticity of said wills. MOREOVER, this Court notes that the alleged holographic will was executed on January 25, 1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the lapse of more than 14 years from the time of the execution of the will to the death of the decedent, the fact that the original of the will could not be located shows to our mind that the decedent had discarded before his death his allegedly missing Holographic Will. Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in which it is contended that the dismissal of appellant's petition is contrary to law and wellsettled jurisprudence. On July 7, 1980, appellees moved to forward the case to this Court on the ground that the appeal does not involve question of fact and alleged that the trial court committed the following assigned errors: I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY THEREOF; II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL; III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.

The only question here is whether a holographic will which was lost or cannot be found can be proved by means of a photostatic copy. Pursuant to Article 811 of the Civil Code, probate of holographic wills is the allowance of the will by the court after its due execution has been proved. The probate may be uncontested or not. If uncontested, at least one Identifying witness is required and, if no witness is available, experts may be resorted to. If contested, at least three Identifying witnesses are required. However, if the holographic will has been lost or destroyed and no other copy is available, the will can not be probated because the best and only evidence is the handwriting of the testator in said will. It is necessary that there be a comparison between sample handwritten statements of the testator and the handwritten will. But, a photostatic copy or xerox copy of the holographic will may be allowed because comparison can be made with the standard writings of the testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that "the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court," Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be admitted because then the authenticity of the handwriting of the deceased can be determined by the probate court. WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's motion for reconsideration dated August 9, 1979, of the Order dated July 23, 1979, dismissing her petition to approve the will of the late Ricardo B. Bonilla, is hereby SET ASIDE. SO ORDERED. Teehankee, Actg. C.J., Melencio-Herrera, Plana, Vasquez and Gutierrez, Jr., JJ., concur.

FIRST DIVISION G.R. No. L-38338 January 28, 1985 IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND BIBIANA ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS DE JESUS, petitioners, vs. ANDRES R. DE JESUS, JR., respondent. Raul S. Sison Law Office for petitioners. Rafael Dinglasan, Jr. for heir M. Roxas. Ledesma, Guytingco Velasco and Associates for Ledesa and A. R. de Jesus.

GUTIERREZ, JR., J.: This is a petition for certiorari to set aside the order of respondent Hon. Jose C. Colayco, Presiding Judge Court of First Instance of Manila, Branch XXI disallowing the probate of the holographic Will of the deceased Bibiana Roxas de Jesus. The antecedent facts which led to the filing of this petition are undisputed. After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus, Special Proceeding No. 81503 entitled "In the Matter of the Intestate Estate of Andres G. de Jesus and Bibiana Roxas de Jesus" was filed by petitioner Simeon R. Roxas, the brother of the deceased Bibiana Roxas de Jesus. On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator. After Letters of Administration had been granted to the petitioner, he delivered to the lower court a document purporting to be the holographic Will of the deceased Bibiana Roxas de Jesus. On May 26, 1973, respondent Judge Jose Colayco set the hearing of the probate of the holographic Win on July 21, 1973. Petitioner Simeon R. Roxas testified that after his appointment as administrator, he found a notebook belonging to the deceased Bibiana R. de Jesus and that on pages 21, 22, 23 and 24 thereof, a letter-win addressed to her children and entirely written and signed in the handwriting of the deceased Bibiana R. de Jesus was found. The will is dated "FEB./61 " and states: "This is my win which I want to be respected although it is not written by a lawyer. ... The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro Roxas de Jesus and Manuel Roxas de Jesus who likewise testified that the letter dated "FEB./61 " is the holographic Will of their deceased mother, Bibiana R. de Jesus. Both recognized the handwriting of their mother and positively Identified her signature. They further testified that their deceased mother understood English, the language in which the holographic Will is written, and that the date "FEB./61 " was the date when said Will was executed by their mother.

Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate" assailing the purported holographic Will of Bibiana R. de Jesus because a it was not executed in accordance with law, (b) it was executed through force, intimidation and/or under duress, undue influence and improper pressure, and (c) the alleged testatrix acted by mistake and/or did not intend, nor could have intended the said Will to be her last Will and testament at the time of its execution. On August 24, 1973, respondent Judge Jose C. Colayco issued an order allowing the probate of the holographic Will which he found to have been duly executed in accordance with law. Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging inter alia that the alleged holographic Will of the deceased Bibiana R. de Jesus was not dated as required by Article 810 of the Civil Code. She contends that the law requires that the Will should contain the day, month and year of its execution and that this should be strictly complied with. On December 10, 1973, respondent Judge Colayco reconsidered his earlier order and disallowed the probate of the holographic Will on the ground that the word "dated" has generally been held to include the month, day, and year. The dispositive portion of the order reads: WHEREFORE, the document purporting to be the holographic Will of Bibiana Roxas de Jesus, is hereby disallowed for not having been executed as required by the law. The order of August 24, 1973 is hereby set aside. The only issue is whether or not the date "FEB./61 " appearing on the holographic Will of the deceased Bibiana Roxas de Jesus is a valid compliance with the Article 810 of the Civil Code which reads: ART. 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. The petitioners contend that while Article 685 of the Spanish Civil Code and Article 688 of the Old Civil Code require the testator to state in his holographic Win the "year, month, and day of its execution," the present Civil Code omitted the phrase Ao mes y dia and simply requires that the holographic Will should be dated. The petitioners submit that the liberal construction of the holographic Will should prevail. Respondent Luz Henson on the other hand submits that the purported holographic Will is void for non-compliance with Article 810 of the New Civil Code in that the date must contain the year, month, and day of its execution. The respondent contends that Article 810 of the Civil Code was patterned after Section 1277 of the California Code and Section 1588 of the Louisiana Code whose Supreme Courts had consistently ruled that the required date includes the year, month, and day, and that if any of these is wanting, the holographic Will is invalid. The respondent further contends that the petitioner cannot plead liberal construction of Article 810 of the Civil Code because statutes prescribing the formalities to be observed in the execution of holographic Wills are strictly construed. We agree with the petitioner.

This will not be the first time that this Court departs from a strict and literal application of the statutory requirements regarding the due execution of Wills. We should not overlook the liberal trend of the Civil Code in the manner of execution of Wills, the purpose of which, in case of doubt is to prevent intestacy The underlying and fundamental objectives permeating the provisions of the law on wigs in this Project consists in the liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing his last wishes, but with sufficien safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator. This objective is in accord with the modem tendency with respect to the formalities in the execution of wills. (Report of the Code Commission, p. 103) In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v. Bustos (27 SCRA 327) he emphasized that: xxx xxx xxx ... The law has a tender regard for the will of the testator expressed in his last will and testament on the ground that any disposition made by the testator is better than that which the law can make. For this reason, intestate succession is nothing more than a disposition based upon the presumed will of the decedent. Thus, the prevailing policy is to require satisfaction of the legal requirements in order to guard against fraud and bad faith but without undue or unnecessary curtailment of testamentary privilege Icasiano v. Icasiano, 11 SCRA 422). If a Will has been executed in substantial compliance with the formalities of the law, and the possibility of bad faith and fraud in the exercise thereof is obviated, said Win should be admitted to probate (Rey v. Cartagena 56 Phil. 282). Thus, xxx xxx xxx ... More than anything else, the facts and circumstances of record are to be considered in the application of any given rule. If the surrounding circumstances point to a regular execution of the wilt and the instrument appears to have been executed substantially in accordance with the requirements of the law, the inclination should, in the absence of any suggestion of bad faith, forgery or fraud, lean towards its admission to probate, although the document may suffer from some imperfection of language, or other non-essential defect. ... (Leynez v. Leynez 68 Phil. 745). If the testator, in executing his Will, attempts to comply with all the requisites, although compliance is not literal, it is sufficient if the objective or purpose sought to be accomplished by such requisite is actually attained by the form followed by the testator. The purpose of the solemnities surrounding the execution of Wills has been expounded by this Court in Abangan v. Abanga 40 Phil. 476, where we ruled that:

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. ... In particular, a complete date is required to provide against such contingencies as that of two competing Wills executed on the same day, or of a testator becoming insane on the day on which a Will was executed (Velasco v. Lopez, 1 Phil. 720). There is no such contingency in this case. We have carefully reviewed the records of this case and found no evidence of bad faith and fraud in its execution nor was there any substitution of Wins and Testaments. There is no question that the holographic Will of the deceased Bibiana Roxas de Jesus was entirely written, dated, and signed by the testatrix herself and in a language known to her. There is also no question as to its genuineness and due execution. All the children of the testatrix agree on the genuineness of the holographic Will of their mother and that she had the testamentary capacity at the time of the execution of said Will. The objection interposed by the oppositor-respondent Luz Henson is that the holographic Will is fatally defective because the date "FEB./61 " appearing on the holographic Will is not sufficient compliance with Article 810 of the Civil Code. This objection is too technical to be entertained. As a general rule, the "date" in a holographic Will should include the day, month, and year of its execution. However, when as in the case at bar, there is no appearance of fraud, bad faith, undue influence and pressure and the authenticity of the Will is established and the only issue is whether or not the date "FEB./61" appearing on the holographic Will is a valid compliance with Article 810 of the Civil Code, probate of the holographic Will should be allowed under the principle of substantial compliance. WHEREFORE, the instant petition is GRANTED. The order appealed from is REVERSED and SET ASIDE and the order allowing the probate of the holographic Will of the deceased Bibiana Roxas de Jesus is reinstated. SO ORDERED. Teehankee (Chairman), Melencio-Herrera, Plana, Relova and De la Fuente, JJ., concur.

EN BANC G.R. No. L-14003 August 5, 1960

FEDERICO AZAOLA, petitioner-appellant, vs. CESARIO SINGSON, oppositor-appellee. F. Lavides and L.B. Alcuaz for appellant. Vicente J. Cuna and P.S. Singson for appellee. REYES, J.B.L., J.: This appeal, taken on points of law from a decision rendered on 15 January 1958 by the Court of First Instance of Quezon City in its Special Proceedings No. Q-2640, involves the determination of the quantity of evidence required for the probate of a holographic will. The established facts are thus summarized in the decision appealed from (Rec. App. pp. 2224): "Briefly speaking, the following facts were established by the petitioner; that on September 9, 1957, Fortunata S. Vda. de Yance died at 13 Luskot, Quezon City, known to be the last residence of said testatrix; that Francisco Azaola, petitioner herein for probate of the holographic will, submitted the said holographic will (Exh. C) whereby Maria Milagros Azaola was made the sole heir as against the nephew of deceased Cesario Singson; that witness Francisco Azaola testified that he saw the holographic will (Exh. C) one month, more or less, before the death of the testatrix, as the same was handed to him and his wife; that the witness testified also that he recognized all the signatures appearing in the holographic will (Exh. C) as the handwriting of the testatrix and to reinforce said statement, witness presented the mortgage (Exh. E), the special power of the attorney (Exh. F), and the general power of attorney (Exh. F-1), besides the deeds of sale (Exhs. G and G-1) including an affidavit (Exh. G-2), and that there were further exhibited in court two residence certificates (Exhs. H and H-1) to show the signatures of the testatrix, for comparison purposes; that said witness, Azaola, testified that the penmanship appearing in the aforesaid documentary evidence is in the handwriting of the testatrix as well as the signatures appearing in the aforesaid documentary evidence is in the handwriting of the testatrix as well as the signatures appearing therein are the signatures of the testatrix; that said witness, in answer to a question of his counsel admitted that the holographic will was handed to him by the testatrix. "apparently it must have been written by her" (t.s.n., p. 11). However, on page 16 on the same transcript of the stenographic notes, when the same witness was asked by counsel if he was familiar with the penmanship and handwriting of the deceased Fortunata Vda. de Yance, he answered positively in the affirmative and when he was asked again whether the penmanship referred to in the previous answer as appearing in the holographic will (Exh. C) was hers (testatrix'), he answered, "I would definitely say it is hers"; that it was also established in the proceedings that the assessed value of the property of the deceased in Luskot, Quezon City, is in the amount of P7,000.00. The opposition to the probate was on the ground that (1) the execution of the will was procured by undue and improper pressure and influence on the part of the petitioner and his

wife, and (2) that the testatrix did not seriously intend the instrument to be her last will, and that the same was actually written either on the 5th or 6th day of August 1957 and not on November 20, 1956 as appears on the will. The probate was denied on the ground that under Article 811 of the Civil Code, the proponent must present three witnesses who could declare that the will and the signature are in the writing of the testatrix, the probate being contested; and because the lone witness presented by the proponent "did not prove sufficiently that the body of the will was written in the handwriting of the testatrix." The proponent appealed, urging: first, that he was not bound to produce more than one witness because the will's authenticity was not questioned; and second, that Article 811 does not mandatorily require the production of three witnesses to identify the handwriting and signature of a holographic will, even if its authenticity should be denied by the adverse party. Article 811 of the Civil Code of the Philippines is to the following effect: ART. 811. In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required. In the absence of any competent witnesses referred to in the preceding paragraph, and if the court deems it necessary, expert testimony may be resorted to. (691a). We agree with the appellant that since the authenticity of the will was not contested, he was not required to produce more than one witness; but even if the genuineness of the holographic will were contested, we are of the opinion that Article 811 of our present Civil Code can not be interpreted as to require the compulsory presentation of three witnesses to identify the handwriting of the testator, under penalty of having the probate denied. Since no witness may have been present at the execution of a holographic will, none being required by law (Art. 810, new Civil Code), it becomes obvious that the existence of witness possessing the requisite qualifications is a matter beyond the control of the proponent. For it is not merely a question of finding and producing any three witnesses; they must be witnesses "who know the handwriting and signature of the testator" and who can declare (truthfully, of course, even if the law does not so express) "that the will and the signature are in the handwriting of the testator". There may be no available witness of the testator's hand; or even if so familiarized, the witnesses may be unwilling to give a positive opinion. Compliance with the rule of paragraph 1 of Article 811 may thus become an impossibility. That is evidently the reason why the second paragraph of Article 811 prescribes that in the absence of any competent witness referred to in the preceding paragraph, and if the court deems it necessary, expert testimony may be resorted to. As can be seen, the law foresees the possibility that no qualified witness may be found (or what amounts to the same thing, that no competent witness may be willing to testify to the authenticity of the will), and provides for resort to expert evidence to supply the deficiency. It may be true that the rule of this article (requiring that three witnesses be presented if the will is contested and only one if no contest is had) was derived from the rule established for ordinary testaments (cf. Cabang vs. Delfinado, 45 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742). But it can not be ignored that the requirement can be considered mandatory only

in the case of ordinary testaments, precisely because the presence of at least three witnesses at the execution of ordinary wills is made by law essential to their validity (Art. 805). Where the will is holographic, no witness need be present (Art. 10), and the rule requiring production of three witnesses must be deemed merely permissive if absurd results are to be avoided. Again, under Article 811, the resort to expert evidence is conditioned by the words "if the Court deem it necessary", which reveal that what the law deems essential is that the Court should be convinced of the will's authenticity. Where the prescribed number of witnesses is produced and the court is convinced by their testimony that the ill is genuine, it may consider it unnecessary to call for expert evidence. On the other hand, if no competent witness is available, or none of those produced is convincing, the Court may still, and in fact it should, resort to handwriting experts. The duty of the Court, in fine, is to exhaust all available lines of inquiry, for the state is as much interested as the proponent that the true intention of the testator be carried into effect. Commenting on analogous provisions of Article 691 of the Spanish Civil Code of 1889, the noted Commentator, Mucuis Scaevola (Vol. 12, 2nd Ed., p.421), sagely remarks: La manera como esta concebida la redaccion del ultimo apartado de dicho precepto induce la conclusion de que siempre o por lo menos, en la mayor parte de los casos, el Juez debe acudir al criterio pericial para que le ilustre acerca de la autenticidad del testamento olografo, aunque ya esten insertas en los autos del expediente las declaraciones testificales. La prudencia con que el Juez debe de proceder en resoluciones de transcendencia asi lo exige, y la indole delicada y peligrosa del testamento olografo lo hace necesario para mayor garantia de todos los interes comprometidos en aquel. En efecto, el cotejo pericial de letras puede ser una confirmacion facultativa del dicho profano de los testigos y un modo de desvanecer las ultimas dudas que pudieran ocurrir al Juez acerca de la autenticidad que trata de averigaur y declarar. Para eso se ha escrito la frase del citado ultimo apartado, (siempre que el Juez lo estime conveniente), haya habido o no testigos y dudaran o no estos respecto de los extremos por que son preguntados. El arbitrio judicial en este caso debe formarse con independencia de los sucesos y de su significacion, para responder debidamente de las resoluciones que haya de dictar. And because the law leaves it to the trial court if experts are still needed, no unfavourable inference can be drawn from a party's failure to offer expert evidence, until and unless the court expresses dissatisfaction with the testimony of the lay witnesses. Our conclusion is that the rule of the first paragraph of Article 811 of the Civil Code is merely directory and is not mandatory. Considering, however, that this is the first occasion in which this Court has been called upon to construe the import of said article, the interest of justice would be better served, in our opinion, by giving the parties ample opportunity to adduce additional evidence, including expert witnesses, should the Court deem them necessary.

In view of the foregoing, the decision appealed from is set aside, and the records ordered remanded to the Court of origin, with instructions to hold a new trial in conformity with this opinion. But evidence already on record shall not be retaken. No costs. Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Barrera and Gutierrez David, JJ., concur.

EN BANC G.R. No. L-2200 August 2, 1950

In re Will of Victor Bilbao. RAMON N. BILBAO, petitioner-appellant, vs. DALMACIO BILBAO, CLEOFAS BILBAO, EUSEBIA BILBAO, CATALINA BILBAO, FILEMON ABRINGE and FRANCISCO ACADEMIA, oppositors-appellee. Pedro Basa, Lamberto Macias and Francisco R. Capistrano for appellant. Perpetuo A. Sandiong and Quinciano Vailoces for appellees. MONTEMAYOR, J.: This is an appeal from a decision of the Court of First Instance of Negros Oriental denying the petition for admission to probate of the last will and testament of Victor S. Bilbao who died on July 13, 1943, which petition was filed by his widow and cotestator Ramona M. Navarro. The will in question was executed on October 6, 1931, on a single page or sheet by the deceased Victor Bilbao jointly with his wife Ramona M. Navarro. The two testators in their testament directed that "all of our respective private properties both real and personal, and all of our conjugal properties, and any other property belonging to either or both of us, be given and transmitted to anyone or either of us, who may survive the other, or who may remain the surviving spouse of the other." The petition for probate was opposed by one Filemon Abringe, a near relative of the deceased, among other grounds, that the alleged will was executed by the husband and wife for their reciprocal benefit and therefore not valid, and that it was not executed and attested to as required by law. After hearing, the trial court found the will to have been executed conjointly by the deceased husband and wife for their reciprocal benefit, and that a will of that kind is neither contemplated by Act No. 190, known as the Code of Civil Procedure nor permitted by article 669 of the Civil Code which provides: Two or more persons cannot make a will conjointly or in the same instrument, either for their reciprocal benefit or for the benefit of a third person. The only assignment of error made in the appeal is that "the lower court erred in not finding that a joint and reciprocal will particularly between husband and wife is valid under the present law." The thesis of the appellant is, that "Chapter XXXI, particularly sections 614, 618, Act 190, appears to be a complete enactment on the subject of execution of wills and may thus be regarded as the expression of the whole law thereon, and that it must be deemed to have impliedly repealed the provision of the Civil Code (Title III, Chapter I) on the matter ;" that inasmuch as the present law on wills as embodied in the Code of Civil Procedure has been taken from American law, it should be interpreted in accordance with the said law, and because joint and reciprocal wills are neither regarded as invalid nor on the contrary they are allowed, then article 669 of the Civil Code prohibiting the execution of joint wills whether reciprocal or for the benefit of a third party should be considered as having been repealed and superseded by the new law.

We have made a rather extensive study of the cases decided by our Supreme Court covering the field of wills, with particular attention to any reference to or ruling on article 669 of the Civil Code but we have failed to find any case wherein that particular codal provision has been discussed or applied, declaring it either repealed or still in force. The sole question and issue squarely raised in this appeal is, therefore one of first impression and naturally we are constrained to act and to proceed with care and caution, realizing the importance and far-reaching effects of any doctrine to be laid down by us in the present case. We cannot agree to the contention of the appellant that the provisions of the Code of Civil Procedure on wills have completely superseded Chapter I, Title III of the Civil Code on the same subject matter, resulting in the complete repeal of said Civil Code provisions. In the study we have made of this subject, we have found a number of cases decided by this court wherein several articles of the Civil Code regarding wills have not only been referred to but have also been applied side by side with the provisions of the Code of Civil Procedure. In the case of in the matter of the will Kabigting (14 Phil., 463), where the will was executed in the year 1908, articles 662 and 663 of the Civil Code regarding capacity and incapacity of persons to dispose by will, have been cited and applied together with section 618 of the Code of Civil Procedure regarding requisites of wills. In the case of Torres and Lopez De Bueno vs. Lopez (48 Phil., 772), article 666 of the Civil Code regarding mental capacity of the testator has been cited and applied together with section 614 and 634 of the Code of Civil Procedure regarding a will executed in 1924. In the case of Marin vs. Nacianceno (19 Phil., 238), article 667 of the Civil Code was cited in the dissenting opinion of Mr. Justice Torres. In the cases of Postigo vs. Borjal (13 Phil., 240); In re Estate of Calderon (26 Phil., 333); Natividad vs.Gabino (36 Phil., 663) wherein the wills involved had been executed after the enactment of the Code of Civil Procedure, particularly the sections regarding wills, article 675 of the Civil Code regarding interpretation of wills was cited and applied. In the case of Samson vs. Naval (41 Phil., 838), article 739 of the Civil Code regarding revocation of wills has been applied in harmony with section 623 of the Code of Civil Procedure. The will involved was executed in 1915 when the Code of Civil Procedure was already in force. The above-cited authorities all go to show that it is not exactly correct to say that the provisions of the Code of Civil Procedure regarding wills completely cover the subject matter and therefore have superseded the provisions of the Civil Code on the point. It is also contended that in the case of Macrohon Ong Ham vs. Saavedra (51 Phil., 267) a will executed in the year 1923, which was made jointly by husband and wife in the same instrument, was admitted to probate by the Court of First Instance of Zamboanga and the decision was affirmed by this court, thereby proving that this tribunal has disregarded the prohibition regarding the execution of wills conjointly under article 669 of the Civil Code, meaning that said article has already been repealed. After examining said case we find the contention untenable. It is true that the will already described was allowed probate by the trial court, but there was no appeal from the order approving the will on the ground of its validity, but only on the manner the properties involved were to be distributed or otherwise disposed of. The Supreme Court never touched this point of invalidity nor the applicability of article 669 of the Civil Code, but merely ruled that a testator may die both testate and

intestate, depending upon the properties sought to be disposed of by him and those to be inherited by his heirs on intestate succession when not covered by the will. As a rule this Tribunal does not pass upon the legality, enforceability, or applicability of a law unless that the point is raised and put in issue, and it is necessary to rule upon it in order to determine the case. The provision of article 669 of the Civil Code prohibiting the execution of a will by two or more persons conjointly or in the same instrument either for their reciprocal benefit or for the benefit of a third person, is not unwise and is not against public policy. The reason for this provision, especially as regards husbands and wife is that when a will is made jointly or in the same instrument, the spouse who is more aggressive, stronger in will or character and dominant is liable to dictate the terms of the will for his or her own benefit or for that of third persons whom he or she desires to favor. And, where the will is not only joint but reciprocal, either one of the spouses who may happen to be unscrupulous, wicked, faithless, or desperate, knowing as he or she does the terms of the will whereby the whole property of the spouses both conjugal and paraphernal goes to the survivor, may be tempted to kill or dispose of the other. Considering the wisdom of the provisions of this article 669 and the fact that it has not been repealed, at least not expressly, as well as the consideration that its provisions are not incompatible with those of the Code of Civil Procedure on the subject of wills, we believe and rule that said article 669 of the Civil Code is still in force. And we are not alone in this opinion. Mr. Justice Willard as shown by his notes on the Civil Code, on page 18 believes that this article 669 is still in force. Sinco and Capistrano in their work on the Civil Code, Vol. II, page 33, favorably cite Justice Willard's opinion that this article is still in force. Judge Camus in his book on the Civil Code does not include this article among those he considers repealed. Lastly, we find that this article 669 has been reproduced word for word in article 818 of the New Civil Code (Republic Act No. 386). The implication is that the Philippine Legislature that passed this Act and approved the New Civil Code, including the members of the Code Commission who prepared it, are of the opinion that the provisions of article 669 of the old Civil Code are not incompatible with those of the Code of Civil Procedure. In the case of Testate estate of the late Bernabe Rodriguez (CA-G.R. No. 1627 -R, July 1, 1948; 46 Off. Gaz., reference to this article 669 of the Civil Code, though indirectly. In the will involved therein, the testator Rodriguez instituted his wife his universal heir and the latter in her separate will equally instituted her husband Rodriguez as her universal heir; in other words they were reciprocal beneficiaries in their respective separate wills. Opposition to the probate of the will of Rodriguez was base on the prohibition contained in article 669 of the Civil Code. The Court of Appeals said that what the law prohibits under said article is two or more persons making a will conjointly or in the same instrument and not reciprocity in separate wills. In conclusion, we believe and hold that the provision of the Code of Civil procedure regarding wills have not repealed all the articles of the old Civil Code on the same subject matter, and that article 669 of the Civil Code is not incompatible or inconsistent with said provision of the Article 669 of the Civil Code is still in force. In view of the foregoing, the decision appealed form, is hereby affirmed, with costs. Ozaeta, Pablo, Bengzon, Tuason, and Reyes JJ., concur.

[G.R. No. 124371. November 23, 2000]

PAULA T. LLORENTE, petitioner, vs. COURT OF APPEALS and ALICIA F. LLORENTE, respondents. DECISION
PARDO, J.: The Case The case raises a conflict of laws issue. What is before us is an appeal from the decision of the Court of Appeals modifying that of the Regional Trial Court, Camarines Sur, Branch 35, Iriga City declaring respondent Alicia F. Llorente (herinafter referred to as Alicia), as coowners of whatever property she and the deceased Lorenzo N. Llorente (hereinafter referred to as Lorenzo) may have acquired during the twenty-five (25) years that they lived together as husband and wife. The Facts The deceased Lorenzo N. Llorente was an enlisted serviceman of the United States Navy from March 10, 1927 to September 30, 1957.
iii[3] i[1] ii[2]

On February 22, 1937, Lorenzo and petitioner Paula Llorente (hereinafter referred to as Paula) were married before a parish priest, Roman Catholic Church, in Nabua, Camarines Sur.
iv[4]

Before the outbreak of the Pacific War, Lorenzo departed for the United States and Paula stayed in the conjugal home in barrio Antipolo, Nabua, Camarines Sur.
v[5]

On November 30, 1943, Lorenzo was admitted to United States citizenship and Certificate of Naturalization No. 5579816 was issued in his favor by the United States District Court, Southern District of New York.
vi[6]

Upon the liberation of the Philippines by the American Forces in 1945, Lorenzo was granted an accrued leave by the U. S. Navy, to visit his wife and he visited the Philippines. He discovered that his wife Paula was pregnant and was living in and having an adulterous relationship with his brother, Ceferino
vii[7]

Llorente.

viii[8]

On December 4, 1945, Paula gave birth to a boy registered in the Office of the Registrar of Nabua as Crisologo Llorente, with the certificate stating that the child was not legitimate and the line for the fathers name was left blank.
ix[9]

Lorenzo refused to forgive Paula and live with her. In fact, on February 2, 1946, the couple drew a written agreement to the effect that (1) all the family allowances allotted by the United States Navy as part of Lorenzos salary and all other obligations for Paulas daily maintenance and support would be suspended; (2) they would dissolve their marital union in accordance with judicial proceedings; (3) they would make a separate agreement regarding their conjugal property acquired during their marital life; and (4) Lorenzo would not prosecute Paula for her adulterous act since she voluntarily admitted her fault and agreed to separate from Lorenzo peacefully. The agreement was signed by both Lorenzo and Paula and was witnessed by Paulas father and stepmother. The agreement was notarized by Notary Public Pedro Osabel.
x[10]

Lorenzo returned to the United States and on November 16, 1951 filed for divorce with the Superior Court of the State of California in and for the County of San Diego. Paula was represented by counsel, John Riley, and actively participated in the proceedings. On November 27, 1951, the Superior Court of the State of California, for the County of San Diego found all factual allegations to be true and issued an interlocutory judgment of divorce.
xi[11]

On December 4, 1952, the divorce decree became final. In the meantime, Lorenzo returned to the Philippines.

xii[12]

On January 16, 1958, Lorenzo married Alicia F. Llorente in Manila. Apparently, Alicia had no knowledge of the first marriage even if they resided in the same town as Paula, who did not oppose the marriage or cohabitation.
xiv[14]

xiii[13]

From 1958 to 1985, Lorenzo and Alicia lived together as husband and wife. Their twenty-five (25) year union produced three children, Raul, Luz and Beverly, all surnamed Llorente.
[15] xvi[16]

xv

On March 13, 1981, Lorenzo executed a Last Will and Testament. The will was notarized by Notary Public Salvador M. Occiano, duly signed by Lorenzo with attesting witnesses Francisco Hugo, Francisco Neibres and Tito Trajano. In the will, Lorenzo bequeathed all his property to Alicia and their three children, to wit:
(1) I give and bequeath to my wife ALICIA R. FORTUNO exclusively my residential house and lot, located at San Francisco, Nabua, Camarines Sur, Philippines, including ALL the personal properties and other movables or belongings that may be found or existing therein; (2) I give and bequeath exclusively to my wife Alicia R. Fortuno and to my children, Raul F. Llorente, Luz F. Llorente and Beverly F. Llorente, in equal shares, all my real properties whatsoever and wheresoever located, specifically my real properties located at Barangay Aro-Aldao, Nabua, Camarines Sur; Barangay Paloyon, Nabua, Camarines

Sur; Barangay Baras, Sitio Puga, Nabua, Camarines Sur; and Barangay Paloyon, Sitio Nalilidong, Nabua, Camarines Sur; (3) I likewise give and bequeath exclusively unto my wife Alicia R. Fortuno and unto my children, Raul F. Llorente, Luz F. Llorente and Beverly F. Llorente, in equal shares, my real properties located in Quezon City Philippines, and covered by Transfer Certificate of Title No. 188652; and my lands in Antipolo, Rizal, Philippines, covered by Transfer Certificate of Title Nos. 124196 and 165188, both of the Registry of Deeds of the province of Rizal, Philippines; (4) That their respective shares in the above-mentioned properties, whether real or personal properties, shall not be disposed of, ceded, sold and conveyed to any other persons, but could only be sold, ceded, conveyed and disposed of by and among themselves; (5) I designate my wife ALICIA R. FORTUNO to be the sole executor of this my Last Will and Testament, and in her default or incapacity of the latter to act, any of my children in the order of age, if of age; (6) I hereby direct that the executor named herein or her lawful substitute should served (sic) without bond; (7) I hereby revoke any and all my other wills, codicils, or testamentary dispositions heretofore executed, signed, or published, by me; (8) It is my final wish and desire that if I die, no relatives of mine in any degree in the Llorentes Side should ever bother and disturb in any manner whatsoever my wife Alicia R. Fortunato and my children with respect to any real or personal properties I gave and bequeathed respectively to each one of them by virtue of this Last Will and Testament.xvii[17]

On December 14, 1983, Lorenzo filed with the Regional Trial Court, Iriga, Camarines Sur, a petition for the probate and allowance of his last will and testament wherein Lorenzo moved that Alicia be appointed Special Administratrix of his estate.
xviii[18]

On January 18, 1984, the trial court denied the motion for the reason that the testator Lorenzo was still alive.
xix[19]

On January 24, 1984, finding that the will was duly executed, the trial court admitted the will to probate.
xx[20]

On June 11, 1985, before the proceedings could be terminated, Lorenzo died.
xxi[21]

On September 4, 1985, Paula filed with the same court a petition for letters of administration over Lorenzos estate in her favor. Paula contended (1) that she was Lorenzos surviving spouse, (2) that the various property were acquired during their marriage, (3) that Lorenzos will disposed of all his property in favor of Alicia and her children, encroaching on her legitime and 1/2 share in the conjugal property.
xxii[22] xxiii[23]

On December 13, 1985, Alicia filed in the testate proceeding (Sp. Proc. No. IR-755), a petition for the issuance of letters testamentary.
xxiv[24]

On October 14, 1985, without terminating the testate proceedings, the trial court gave due course to Paulas petition in Sp. Proc. No. IR-888.
xxv[25]

On November 6, 13 and 20, 1985, the order was published in the newspaper Bicol Star.
xxvi[26]

On May 18, 1987, the Regional Trial Court issued a joint decision, thus:
Wherefore, considering that this court has so found that the divorce decree granted to the late Lorenzo Llorente is void and inapplicable in the Philippines, therefore the marriage he contracted with Alicia Fortunato on January 16, 1958 at Manila is likewise void. This being so the petition of Alicia F. Llorente for the issuance of letters testamentary is denied. Likewise, she is not entitled to receive any share from the estate even if the will especially said so her relationship with Lorenzo having gained the status of paramour which is under Art. 739 (1). On the other hand, the court finds the petition of Paula Titular Llorente, meritorious, and so declares the intrinsic disposition of the will of Lorenzo Llorente dated March 13, 1981 as void and declares her entitled as conjugal partner and entitled to one-half of their conjugal properties, and as primary compulsory heir, Paula T. Llorente is also entitled to one-third of the estate and then one-third should go to the illegitimate children, Raul, Luz and Beverly, all surname (sic) Llorente, for them to partition in equal shares and also entitled to the remaining free portion in equal shares. Petitioner, Paula Llorente is appointed legal administrator of the estate of the deceased, Lorenzo Llorente. As such let the corresponding letters of administration issue in her favor upon her filing a bond in the amount (sic) of P100,000.00 conditioned for her to make a return to the court within three (3) months a true and complete inventory of all goods, chattels, rights, and credits, and estate which shall at any time come to her possession or to the possession of any other person for her, and from the proceeds to pay and discharge all debts, legacies and charges on the same, or such dividends thereon as shall be decreed or required by this court; to render a true and just account of her administration to the court within one (1) year, and at any other time when required by the court and to perform all orders of this court by her to be performed. On the other matters prayed for in respective petitions for want of evidence could not be granted. SO ORDERED.xxvii[27]

In time, Alicia filed with the trial court a motion for reconsideration of the aforequoted decision.
xxviii[28]

On September 14, 1987, the trial court denied Alicias motion for reconsideration but modified its earlier decision, stating that Raul and Luz Llorente are not children legitimate or otherwise of Lorenzo since they were not legally adopted by him. Amending its decision of May 18, 1987, the trial court declared Beverly Llorente as the only illegitimate child of Lorenzo, entitling her to one-third (1/3) of the estate and one-third (1/3) of the free portion of the estate.
xxix[29] xxx[30]

On September 28, 1987, respondent appealed to the Court of Appeals.

xxxi[31]

On July 31, 1995, the Court of Appeals promulgated its decision, affirming with modification the decision of the trial court in this wise:

WHEREFORE, the decision appealed from is hereby AFFIRMED with the MODIFICATION that Alicia is declared as co-owner of whatever properties she and the deceased may have acquired during the twenty-five (25) years of cohabitation. SO ORDERED.xxxii[32]

On August 25, 1995, petitioner filed with the Court of Appeals a motion for reconsideration of the decision.
xxxiii[33]

On March 21, 1996, the Court of Appeals, merit. Hence, this petition.
xxxv[35]

xxxiv[34]

denied the motion for lack of

The Issue Stripping the petition of its legalese and sorting through the various arguments raised, the issue is simple. Who are entitled to inherit from the late Lorenzo N. Llorente?
xxxvi[36]

We do not agree with the decision of the Court of Appeals. We remand the case to the trial court for ruling on the intrinsic validity of the will of the deceased. The Applicable Law The fact that the late Lorenzo N. Llorente became an American citizen long before and at the time of: (1) his divorce from Paula; (2) marriage to Alicia; (3) execution of his will; and (4) death, is duly established, admitted and undisputed. Thus, as a rule, issues arising from these incidents are necessarily governed by foreign law. The Civil Code clearly provides:
Art. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad. 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 succession, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found. (emphasis ours)

True, foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to take judicial notice of them. Like any other fact, they must be alleged and proved.
xxxvii[37]

While the substance of the foreign law was pleaded, the Court of Appeals did not admit the foreign law. The Court of Appeals and the trial court called to the fore the renvoi doctrine, where the case was referred back to the law of the decedents domicile, in this case, Philippine law. We note that while the trial court stated that the law of New York was not sufficiently proven, in the same breath it made the categorical, albeit equally unproven statement that American law follows the domiciliary theory hence, Philippine law applies when determining the validity of Lorenzos will.
xxxviii[38]

First, there is no such thing as one American law. The "national law" indicated in Article 16 of the Civil Code cannot possibly apply to general American law. There is no such law governing the validity of testamentary provisions in the United States. Each State of the union has its own law applicable to its citizens and in force only within the State. It can therefore refer to no other than the law of the State of which the decedent was a resident. Second, there is no showing that the application of the renvoi doctrine is called for or required by New York State law.
xxxix[39]

The trial court held that the will was intrinsically invalid since it contained dispositions in favor of Alice, who in the trial courts opinion was a mere paramour. The trial court threw the will out, leaving Alice, and her two children, Raul and Luz, with nothing. The Court of Appeals also disregarded the will. It declared Alice entitled to one half (1/2) of whatever property she and Lorenzo acquired during their cohabitation, applying Article 144 of the Civil Code of the Philippines. The hasty application of Philippine law and the complete disregard of the will, already probated as duly executed in accordance with the formalities of Philippine law, is fatal, especially in light of the factual and legal circumstances here obtaining. Validity of the Foreign Divorce In Van Dorn v. Romillo, Jr. we held that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorces, the same being considered contrary to our concept of public policy and morality. In the same case, the Court ruled that aliens may obtain divorces abroad, provided they are valid according to their national law.
xl[40]

Citing this landmark case, the Court held in Quita v. Court of Appeals, that once proven that respondent was no longer a Filipino citizen when he obtained the divorce from petitioner, the ruling in Van Dorn would become applicable and petitioner could very well lose her right to inherit from him.
xli[41]

In Pilapil v. Ibay-Somera,

xlii[42]

we recognized the divorce obtained by the

respondent in his country, the Federal Republic of Germany. There, we stated that divorce and its legal effects may be recognized in the Philippines insofar as respondent is concerned in view of the nationality principle in our civil law on the status of persons. For failing to apply these doctrines, the decision of the Court of Appeals must be reversed. We hold that the divorce obtained by Lorenzo H. Llorente from his first wife Paula was valid and recognized in this jurisdiction as a matter of comity. Now, the effects of this divorce (as to the succession to the estate of the decedent) are matters best left to the determination of the trial court.
xliii[43]

Validity of the Will The Civil Code provides:

Art. 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed. When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution. (underscoring ours)

The clear intent of Lorenzo to bequeath his property to his second wife and children by her is glaringly shown in the will he executed. We do not wish to frustrate his wishes, since he was a foreigner, not covered by our laws on family rights and duties, status, condition and legal capacity.
xliv[44]

Whether the will is intrinsically valid and who shall inherit from Lorenzo are issues best proved by foreign law which must be pleaded and proved. Whether the will was executed in accordance with the formalities required is answered by referring to Philippine law. In fact, the will was duly probated. As a guide however, the trial court should note that whatever public policy or good customs may be involved in our system of legitimes, Congress did not intend to extend the same to the succession of foreign nationals. Congress specifically left the amount of successional rights to the decedent's national law.
[45]

xlv

Having thus ruled, we find it unnecessary to pass upon the other issues raised. The Fallo WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals in CA-G. R. SP No. 17446 promulgated on July 31, 1995 is SET ASIDE. In lieu thereof, the Court REVERSES the decision of the Regional Trial Court and RECOGNIZES as VALID the decree of divorce granted in favor of the

deceased Lorenzo N. Llorente by the Superior Court of the State of California in and for the County of San Diego, made final on December 4, 1952. Further, the Court REMANDS the cases to the court of origin for determination of the intrinsic validity of Lorenzo N. Llorentes will and determination of the parties successional rights allowing proof of foreign law with instructions that the trial court shall proceed with all deliberate dispatch to settle the estate of the deceased within the framework of the Rules of Court. No costs. SO ORDERED. Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago, JJ., concur.

i ii iii iv v vi vii viii ix x xi xii xiii xiv xv xvi xvii xviii xix xx xxi xxii xxiii xxiv xxv xxvi xxvii xxviii xxix xxx xxxi xxxii xxxiii xxxiv xxxv xxxvi xxxvii xxxviii xxxix xl xli xlii xliii xliv xlv