Constantino

C.
Hon.
INTERMEDIATE
G.R. No. 72706, October 27, 1987

ACAIN,

petitioner
APPELLATE

vs.
COURT

FACTS:
Constantino Acain filed on the Regional Trial Court a petition for the probate of the will of his late
Uncle, Nemesio Acain, on the premise that the latter died leaving a will in which the former and his
brothers and sisters were instituted as heirs. After the petition was set for hearing in the lower court,
Virginia Fernandez and Rosa Diongson, a legally adopted daughter and the widow of the deceased
respectively, filed a motion to dismiss on the grounds that: (1) Constantino Acain has no legal capacity to
institute the proceedings; (2) he is merely a universal heir; and (3) the widow and the adopted daughter
have been pretirited. Said motion was denied as well as the subsequent motion for reconsideration.
Consequently, Fernandez and Diongson filed with the Supreme Court a petition for certiorari and
prohibition with preliminary injunction which was subsequently referred to the Intermediate Appellate
Court. IAC granted Fernandez and Diongsons petition and ordered the trial court to dismiss the petition
for probate of the will. Due to the denial of Acains motion for reconsideration, he then filed a petition for
review on certiorari before the Supreme Court.
ISSUE:
Whether or not Virginia Fernandez and Rosa Diongson have been pretirited.
RULING:
Article 854 of the Civil Code:
The preterition or omission of one, some, or all of the compulsory heirs in the direct line,
whether living at the time of the execution of the will or born after the death of the testator,
shall annul the institution of heir; but the devisees and legacies shall be valid insofar as
they are not inofficious.
If the omitted compulsory heirs should die before the testator, the institution shall be
effectual, without prejudice to the right of representation.

Preterition consists in the omission in the testators will of the forced heirs or anyone of them either
because they are not mentioned therein, or though mentioned, they are neither instituted as heirs nor are
expressly disinherited. Insofar as the widow is concerned, Article 854 may not apply as she does not
ascend or descend from the testator, although she is a compulsory heir. However, the same thing cannot
be said of the legally adopted daughter. Under Article 39 of P.D. No. 603, known as the Child and Youth
Welfare Code, adoption gives to the adopted person the same rights and duties as if he were a legitimate
child of the adopter and makes the adopted person a legal heir of the adopter. It cannot be denied that
she was totally omitted and preterited in the will and that both the adopted child and the widow were
deprived of at least their legitime. Neither can it be denied that they were not expressly disinherited.
Hence, this is a clear case of preterition of the legally adopted child.
The universal institution of Acain together with his brothers and sisters to the entire inheritance of the
testator results in totally abrogating the will because the nullification of such institution of universal heirs
without any other testamentary disposition in the will amounts to a declaration that nothing at all was
written.

Danilo
ALUAD,
Zenaido
G.R. No. 176943, October 17, 2008

et

al.,
ALUAD,

petitioners

vs.
respondent

FACTS:
Petitioners mother, Maria Aluad and respondent Zenaido Aluad were raised by the childless spouses
Matilde and Crispin Aluad. Crispin was the owner of six lots of Pilar Cadastre, Capiz. After his death,
Matilde adjudicated the lots to herself and thereafter, she executed a Deed of Donation of Real Property
Inter Vivos in favor of Maria covering all the six lots. The Deed provided that such
will become effective upon the death of the Donor, but in the event that the Donee should
die before the Donor, the present donation shall be deemed rescinded. Provided,
however, that anytime during the lifetime of the Donor or anyone of them who should
survive, they could use, encumber or even dispose of any or even all of the parcels of the
land.
Matilde sold one of the lots to Zenaido and subsequently, Matilde executed a last will and testament
devising four (4) of the lots to Maria and the remaining lot to Zenaido. Maria died a few months after
Matildes death. Thereafter, Marias heirs (herein petitioners) filed before the RTC a complaint for
declaration and recovery of ownership and possession of the two lots conveyed and donated to Zenaido,
alleging that no rights have been transmitted to the latter because such lots have been previously
alienated to them to Maria via the Deed of Donation. The lower court decided in favor of the petitioners
however, CA reversed said decision upon appeal of Zenaido which held that the Deed of Donation was
actually a donation mortis causa, not inter vivos and as such it had to, but did not, comply with the
formalities of a will. Due to the denial of the petitioners Motion for Reconsideration, the present Petition
for Review has been filed.
ISSUES:
1. Whether or not the Deed of Donation is donation inter vivos and whether or not such deed is
valid.
2. If so, whether or not Matilde Aluad has the right to convey the lots in question to Zenaido
Aluad.
RULING:
The Court finds the donation to Maria Aluad (petitioners mother) one of mortis causa, it having the
following characteristics:
1. It conveys no title or ownership to the transferee before the death of the transferor, or what
amounts to the same thing, that the transferor should retain the ownership (full or naked) and
control of the property while alive;
2. That before the death of the transferor, the transfer should be revocable, by the transferor at
will, ad nutum, but revocability may be provided for indirectly by means of a reserved power
in the donor to dispose of the properties conveyed; and
3. That the transfer should be void of the transferor should survive the transferee.
The phrase in the earlier-qouted Deed of Donation to become effective upon the death of the
DONOR admits of no other interpretation than to mean that Matilde did not intend to transfer the
ownership of the six lots to petitioners mother during the formers lifetime. Further the statement,
anytime during the lifetime of the DONOR or anyone of them who should survive, they could use,
encumber or even dispose of any or even all the parcels of land herein donated, means that Matilde
retained ownership of the lots and reserved in her the right to dispose them. For the right to dispose of a
thing without other limitations than those established by law is an attribute of ownership. The phrase,

anyone of them who should survive is out of sync. For the Deed of Donation clearly stated that it would
take effect upon the death of the donor, hence, said phrase could only have referred to the donor.
The donation being then mortis causa, the formalities of a will should have been observed but they
were not, as it was witnessed by only two, not three or more witnesses following Article 805 of the Civil
Code. It is void and transmitted no right to petitioners mother. But even assuming arguendo that the
formalities were observed, since it was not probated, no right to the two lots was transmitted to Maria.
Matilde thus validly disposed the lot to Zenaido by her last will and testament, subject to the qualification
that her will must be probated. With respect to the conveyed lot, the same had been validly sold by
Matilde to Zenaido.

Estate
of
Miguel
Mamuyac,
Cornelio
MAMUYAC,
G.R. No. L-26317, January 29, 1927

Francisco
et

GAGO,
al.,

petitioner,
vs.
opponents.

FACTS:
Miguel Mamuyac executed a last will and testament on July 1918 and almost 4 years later, Francisco
Gago presented a petition in the CFI for the probation of such will which was opposed by Cornelia
Mamuyac et al. The petition was denied upon the ground that Mamuyac had executed a new will on April
1919. An action was filed to secure the probation of the said new will. The opponents alleged (a) that the
said will is a copy of the second will executed by Miguel; (b) that the same had been cancelled and
revoked during the lifetime of the testator; and (c) that the said will was not the last will and testament of
Miguel Mamuyac. The petition was then again denied upon the ground that the will of 1919 had been the
cancelled and revoked based on the evidence adduced by the trial court that the 1918 will is a mere
carbon of its original which remained in the possession of the deceased, who revoked it before a witness,
who typed the 1919 will of the testator, and before another person who witnessed the actual cancellation
by the testator in 1920. Hence, this appeal.
ISSUE:
Whether or not the will in question has been revoked and cancelled.
RULING:
The law does not require any evidence of the revocation or cancellation of a will to be preserved.
Where a will which cannot be found is shown to have been in the possession of the testator, when last
seen, the presumption is, in the absence of other competent evidence, that the same was cancelled or
destroyed. The same presumption arises where it is shown that the testator had ready access to the will
and it cannot be found after his death. It will not be presumed that such will has been destroyed by any
other person without the knowledge or authority of the testator. In view of the fact that the original will of
1919 could not be found after the death of the testator and in view of the positive proof that the same had
been cancelled, the conclusions of the lower court are in accordance with the weight of evidence.
After a careful examination of the entire record, we are fully persuaded that the will presented for
probate had been cancelled by the testator in 1920.

Heirs of Jesus Fran v. Hon. Bernardo LL. SalasG.R. No. L-53546; June 25, 1992
Facts:
Remedios Tiosejo died with neither descendants nor ascendants; she left real and personal properties
located in Cebu City, Ormoc City and Puerto Bello, Merida, Leyte. She left a last will and testament
wherein she bequeathed to her collateral relatives (b,s,n,n) all her properties. She designated Rosario

Tan or, upon the latter's death, Jesus Fran, as executor. Jesus Fran filed a pet for the probate of
Remedios' will. The pet alleged that Rosario was not physically well. Tan signed a waiver in favor of Fran
on the third page of the pet. The PRs (sisters of the deceased) filed a manifestation, alleging that they
needed time to study the petition because some heirs have been intentionally omitted. PRs did not file
any opposition. The pet thus became uncontested. The probate court rendered a decision admitting the
will to probate. Pet filed an Inventory of the Estate; copies thereof were furnished to the PRs. A Project
of Partition was submitted by the exec to the court. The PRs still did not make any objections. TC issued
its Order approving the partition. Thereafter, the aforesaid branch (which issued the order) was
converted to a Juvenile and Domestic Relations Court. PRs filed with the new branch a MR of the
probate judgment and the order of partition. Pets challenged the juris of the court. Respondent Judge
issued an order declaring the testamentary disposition as void.
Issue:
GAD of respondent Judge.
Ruling:
Yes. Respondent Judge committed grave abuse of discretion amounting to lack of jurisdiction when he
granted the Omnibus Motion for Reconsideration and thereafter set aside the probate judgment of 13
November 1972 in Sp. Proc. No. 3309-R, declared the subject will of the testatrix a forgery, nullified the
testamentary dispositions therein and ordered the conversion of the testate proceedings into one of
intestacy. After the probate court rendered its decision on 13 November 1972, and there having been
no claim presented despite publication of notice to creditors, petitioner Fran submitted a Project of
Partition which private respondent Maria M. Vda. de Gandiongco voluntarily signed and to which private
respondent Espina expressed her conformity through a certification filed with the probate court.
Assuming for the sake of argument that private respondents did not receive a formal notice of the
decision as they claim in their Omnibus Motion for Reconsideration, these acts nevertheless constitute
indubitable proof of their prior actual knowledge of the same. A formal notice would have been an idle
ceremony. Intestate proceedings, a decision logically precedes the project of partition, which is normally
an implementation of the will and is among the last operative acts to terminate the proceedings. If
private respondents did not have actual knowledge of the decision, they should have desisted from
performing the above acts and instead demanded from petitioner Fran the fulfillment of his alleged
promise to show them the will. The same conclusion refutes and defeats the plea that they were not
notified of the order authorizing the Clerk of Court to receive the evidence and that the Clerk of Court
did not notify them of the date of the reception of evidence. Besides, such plea must fail because
private respondents were present when the court dictated the said order.
Marcela Rodelas v. Amparo AranzaG.R. No. L-58509; December 7, 1982Facts:
Petitioner-appellant filed a petition with the CFI-Rizal for the probate of the holographic will of Ricardo
B. Bonilla and the issuance of letters testamentary in her favor. The petition was opposed by appellees
Amparo Aranza Bonilla, Wilferine Bonilla Treyes, Expedita BonillaFrias and Ephraim Bonilla. The grounds
of their opposition are as follows: 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.2. The alleged copy of the
will did not contain a disposition of property after death and was not intended to take effect.3. The
original must be presented and not the copy thereof.4. The deceased did not leave any will. The
appellees also moved for the dismissal of the petition for the probate of the will. The appellees' motions
were denied. They filed a Motion for recon. Motion for Reconsideration was approved. Appellant's
motion for recon was denied. Appellant appealed the case to the CA which certified the case to the SC
on hte ground that the appeal does not involve questions of fact.
Issue:
Whether or not a holo will which was lost or cannot be found can be proved by means of a photostatic
copy.
Ruling:
Yes. A photostatic copy or xerox copy of the holographic will may be allowed becausec omparison 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