[G.R. No. L-8437. November 28, 1956.

]
ESTATE OF K. H. HEMADY, deceased, vs. LUZON SURETY CO., INC.,
claimant-Appellant.
DECISION
REYES, J. B. L., J.:
Appeal by Luzon Surety Co., Inc., from an order of the Court of First Instance of
Rizal, presided by Judge Hermogenes Caluag, dismissing its claim against the Estate
of K. H. Hemady (Special Proceeding No. Q-293) for failure to state a cause of
action.
The Luzon Surety Co. had filed a claim against the Estate based on twenty different
indemnity agreements, or counter bonds, each subscribed by a distinct principal
and by the deceased K. H. Hemady, a surety solidary guarantor) in all of them, in
consideration of the Luzon Surety Co.s of having guaranteed, the various principals
in favor of different creditors. The twenty counterbonds, or indemnity agreements,
all contained the following stipulations:chanroblesvirtuallawlibrary
Premiums. As consideration for this suretyship, the undersigned jointly and
severally, agree to pay the COMPANY the sum of ________________ (P______) pesos,
Philippines Currency, in advance as premium there of for every __________ months or
fractions thereof, this ________ or any renewal or substitution thereof is in effect.
Indemnity. The undersigned, jointly and severally, agree at all times to indemnify
the COMPANY and keep it indemnified and hold and save it harmless from and
against any and all damages, losses, costs, stamps, taxes, penalties, charges, and
expenses of whatsoever kind and nature which the COMPANY shall or may, at any
time sustain or incur in consequence of having become surety upon this bond or
any extension, renewal, substitution or alteration thereof made at the instance of
the undersigned or any of them or any order executed on behalf of the undersigned
or any of them; chan roblesvirtualawlibraryand to pay, reimburse and make good to
the COMPANY, its successors and assigns, all sums and amount of money which it or
its representatives shall pay or cause to be paid, or become liable to pay, on
account of the undersigned or any of them, of whatsoever kind and nature,
including 15% of the amount involved in the litigation or other matters growing out
of or connected therewith for counsel or attorneys fees, but in no case less than
P25. It is hereby further agreed that in case of extension or renewal of this ________
we equally bind ourselves for the payment thereof under the same terms and
conditions as above mentioned without the necessity of executing another
indemnity agreement for the purpose and that we hereby equally waive our right to
be notified of any renewal or extension of this ________ which may be granted under
this indemnity agreement.
Interest on amount paid by the Company. Any and all sums of money so paid by
the company shall bear interest at the rate of 12% per annum which interest, if not
paid, will be accummulated and added to the capital quarterly order to earn the
same interests as the capital and the total sum thereof, the capital and interest,
shall be paid to the COMPANY as soon as the COMPANY shall have become liable

therefore, whether it shall have paid out such sums of money or any part thereof or
not.
xxx

xxx

xxx

Waiver. It is hereby agreed upon by and between the undersigned that any
question which may arise between them by reason of this document and which has
to be submitted for decision to Courts of Justice shall be brought before the Court of
competent jurisdiction in the City of Manila, waiving for this purpose any other
venue. Our right to be notified of the acceptance and approval of this indemnity
agreement is hereby likewise waived.
xxx

xxx

xxx

Our Liability Hereunder. It shall not be necessary for the COMPANY to bring suit
against the principal upon his default, or to exhaust the property of the principal,
but the liability hereunder of the undersigned indemnitor shall be jointly and
severally, a primary one, the same as that of the principal, and shall be exigible
immediately upon the occurrence of such default. (Rec. App. pp. 98- 102.)
The Luzon Surety Co., prayed for allowance, as a contingent claim, of the value of
the twenty bonds it had executed in consideration of the counterbonds, and further
asked for judgment for the unpaid premiums and documentary stamps affixed to
the bonds, with 12 per cent interest thereon.
Before answer was filed, and upon motion of the administratrix of Hemadys estate,
the lower court, by order of September 23, 1953, dismissed the claims of Luzon
Surety Co., on two grounds:chanroblesvirtuallawlibrary (1) that the premiums due
and cost of documentary stamps were not contemplated under the indemnity
agreements to be a part of the undertaking of the guarantor (Hemady), since they
were not liabilities incurred after the execution of the counterbonds; chan
roblesvirtualawlibraryand (2) that whatever losses may occur after Hemadys
death, are not chargeable to his estate, because upon his death he ceased to be
guarantor.
Taking up the latter point first, since it is the one more far reaching in effects, the
reasoning of the court below ran as follows:chanroblesvirtuallawlibrary
The administratrix further contends that upon the death of Hemady, his liability as
a guarantor terminated, and therefore, in the absence of a showing that a loss or
damage was suffered, the claim cannot be considered contingent. This Court
believes that there is merit in this contention and finds support in Article 2046 of
the new Civil Code. It should be noted that a new requirement has been added for a
person to qualify as a guarantor, that is:chanroblesvirtuallawlibrary integrity. As
correctly pointed out by the Administratrix, integrity is something purely personal
and is not transmissible. Upon the death of Hemady, his integrity was not
transmitted to his estate or successors. Whatever loss therefore, may occur after
Hemadys death, are not chargeable to his estate because upon his death he
ceased to be a guarantor.
Another clear and strong indication that the surety company has exclusively relied
on the personality, character, honesty and integrity of the now deceased K. H.
Hemady, was the fact that in the printed form of the indemnity agreement there is a
paragraph entitled Security by way of first mortgage, which was expressly waived
and renounced by the security company. The security company has not demanded

from K. H. Hemady to comply with this requirement of giving security by way of first
mortgage. In the supporting papers of the claim presented by Luzon Surety
Company, no real property was mentioned in the list of properties mortgaged which
appears at the back of the indemnity agreement. (Rec. App., pp. 407-408).
We find this reasoning untenable. Under the present Civil Code (Article 1311), as
well as under the Civil Code of 1889 (Article 1257), the rule is that
Contracts take effect only as between the parties, their assigns and heirs, except in
the case where the rights and obligations arising from the contract are not
transmissible by their nature, or by stipulation or by provision of law.
While in our successional system the responsibility of the heirs for the debts of their
decedent cannot exceed the value of the inheritance they receive from him, the
principle remains intact that these heirs succeed not only to the rights of the
deceased but also to his obligations. Articles 774 and 776 of the New Civil Code
(and Articles 659 and 661 of the preceding one) expressly so provide, thereby
confirming Article 1311 already quoted.
ART. 774. Succession is a mode of acquisition by virtue of which the property,
rights and obligations to the extent of the value of the inheritance, of a person are
transmitted through his death to another or others either by his will or by operation
of law.
ART. 776. The inheritance includes all the property, rights and obligations of a
person which are not extinguished by his death.
In
Mojica
vs.
Fernandez,
ruled:chanroblesvirtuallawlibrary

Phil.

403,

this

Supreme

Court

Under the Civil Code the heirs, by virtue of the rights of succession are subrogated
to all the rights and obligations of the deceased (Article 661) and cannot be
regarded as third parties with respect to a contract to which the deceased was a
party, touching the estate of the deceased (Barrios vs. Dolor, 2 Phil. 44).
xxx

xxx

xxx

The principle on which these decisions rest is not affected by the provisions of the
new Code of Civil Procedure, and, in accordance with that principle, the heirs of a
deceased person cannot be held to be third persons in relation to any contracts
touching the real estate of their decedent which comes in to their hands by right of
inheritance; chan roblesvirtualawlibrarythey take such property subject to all the
obligations resting thereon in the hands of him from whom they derive their rights.
(See also Galasinao vs. Austria, 51 Off. Gaz. (No. 6) p. 2874 and de Guzman vs.
Salak, 91 Phil., 265).
The binding effect of contracts upon the heirs of the deceased party is not altered
by the provision in our Rules of Court that money debts of a deceased must be
liquidated and paid from his estate before the residue is distributed among said
heirs (Rule 89). The reason is that whatever payment is thus made from the estate
is ultimately a payment by the heirs and distributees, since the amount of the paid
claim in fact diminishes or reduces the shares that the heirs would have been
entitled to receive.
Under our law, therefore, the general rule is that a partys contractual rights and
obligations are transmissible to the successors. The rule is a consequence of the

progressive depersonalization of patrimonial rights and duties that, as observed

by Victorio Polacco, has characterized the history of these institutions. From the
Roman concept of a relation from person to person, the obligation has evolved into
a relation from patrimony to patrimony, with the persons occupying only a
representative position, barring those rare cases where the obligation is strictly
personal, i.e., is contracted intuitu personae, in consideration of its performance by
a specific person and by no other. The transition is marked by the disappearance of
the imprisonment for debt.
Of the three exceptions fixed by Article 1311, the nature of the obligation of the
surety or guarantor does not warrant the conclusion that his peculiar individual
qualities are contemplated as a principal inducement for the contract. What did the
creditor Luzon Surety Co. expect of K. H. Hemady when it accepted the latter as
surety in the counterbonds? Nothing but the reimbursement of the moneys that the
Luzon Surety Co. might have to disburse on account of the obligations of the
principal debtors. This reimbursement is a payment of a sum of money, resulting
from an obligation to give; chan roblesvirtualawlibraryand to the Luzon Surety Co., it
was indifferent that the reimbursement should be made by Hemady himself or by
some one else in his behalf, so long as the money was paid to it.
The second exception of Article 1311, p. 1, is intransmissibility by stipulation of the
parties. Being exceptional and contrary to the general rule, this intransmissibility
should not be easily implied, but must be expressly established, or at the very least,
clearly inferable from the provisions of the contract itself, and the text of the
agreements sued upon nowhere indicate that they are non-transferable.
(b) Intransmisibilidad por pacto. Lo general es la transmisibilidad de darechos y
obligaciones;chan roblesvirtualawlibraryle excepcion, la intransmisibilidad. Mientras
nada se diga en contrario impera el principio de la transmision, como elemento
natural a toda relacion juridica, salvo las personalisimas. Asi, para la no transmision,
es menester el pacto expreso, porque si no, lo convenido entre partes trasciende a
sus herederos.
Siendo estos los continuadores de la personalidad del causante, sobre ellos recaen
los efectos de los vinculos juridicos creados por sus antecesores, y para evitarlo, si
asi se quiere, es indespensable convension terminante en tal sentido.
Por su esencia, el derecho y la obligacion tienden a ir ms all de las personas que
les dieron vida, y a ejercer presion sobre los sucesores de esa persona; chan
roblesvirtualawlibrarycuando no se quiera esto, se impone una estipulacion
limitativa expresamente de la transmisibilidad o de cuyos tirminos claramente se
deduzca la concresion del concreto a las mismas personas que lo otorgon.
(Scaevola, Codigo Civil, Tomo XX, p. 541-542) (Emphasis supplied.)
Because under the law (Article 1311), a person who enters into a contract is
deemed to have contracted for himself and his heirs and assigns, it is unnecessary
for him to expressly stipulate to that effect; chan roblesvirtualawlibraryhence, his
failure to do so is no sign that he intended his bargain to terminate upon his death.
Similarly, that the Luzon Surety Co., did not require bondsman Hemady to execute a
mortgage indicates nothing more than the companys faith and confidence in the
financial stability of the surety, but not that his obligation was strictly personal.
The third exception to the transmissibility of obligations under Article 1311 exists
when they are not transmissible by operation of law. The provision makes

reference to those cases where the law expresses that the rights or obligations are
extinguished by death, as is the case in legal support (Article 300), parental
authority (Article 327), usufruct (Article 603), contracts for a piece of work (Article
1726), partnership (Article 1830 and agency (Article 1919). By contract, the articles
of the Civil Code that regulate guaranty or suretyship (Articles 2047 to 2084)
contain no provision that the guaranty is extinguished upon the death of the
guarantor or the surety.
The lower court sought to infer such a limitation from Art. 2056, to the effect that
one who is obliged to furnish a guarantor must present a person who possesses
integrity, capacity to bind himself, and sufficient property to answer for the
obligation which he guarantees. It will be noted, however, that the law requires
these qualities to be present only at the time of the perfection of the contract of
guaranty. It is self-evident that once the contract has become perfected and
binding, the supervening incapacity of the guarantor would not operate to
exonerate
him
of
the
eventual
liability
he
has
contracted; chan
roblesvirtualawlibraryand if that be true of his capacity to bind himself, it should
also be true of his integrity, which is a quality mentioned in the article alongside the
capacity.
The foregoing concept is confirmed by the next Article 2057, that runs as
follows:chanroblesvirtuallawlibrary
ART. 2057. If the guarantor should be convicted in first instance of a crime
involving dishonesty or should become insolvent, the creditor may demand another
who has all the qualifications required in the preceding article. The case is excepted
where the creditor has required and stipulated that a specified person should be
guarantor.
From this article it should be immediately apparent that the supervening dishonesty
of the guarantor (that is to say, the disappearance of his integrity after he has
become bound) does not terminate the contract but merely entitles the creditor to
demand a replacement of the guarantor. But the step remains optional in the
creditor:chanroblesvirtuallawlibrary it
is
his
right,
not
his
duty; chan
roblesvirtualawlibraryhe may waive it if he chooses, and hold the guarantor to his
bargain. Hence Article 2057 of the present Civil Code is incompatible with the trial
courts stand that the requirement of integrity in the guarantor or surety makes the
latters undertaking strictly personal, so linked to his individuality that the guaranty
automatically terminates upon his death.
The contracts of suretyship entered into by K. H. Hemady in favor of Luzon Surety
Co. not being rendered intransmissible due to the nature of the undertaking, nor by
the stipulations of the contracts themselves, nor by provision of law, his eventual
liability thereunder necessarily passed upon his death to his heirs. The contracts,
therefore, give rise to contingent claims provable against his estate under section 5,
Rule 87 (2 Moran, 1952 ed., p. 437; chan roblesvirtualawlibraryGaskell & Co. vs. Tan
Sit, 43 Phil. 810, 814).
The most common example of the contigent claim is that which arises when a
person is bound as surety or guarantor for a principal who is insolvent or dead.
Under the ordinary contract of suretyship the surety has no claim whatever against
his principal until he himself pays something by way of satisfaction upon the
obligation which is secured. When he does this, there instantly arises in favor of the

surety the right to compel the principal to exonerate the surety. But until the surety
has contributed something to the payment of the debt, or has performed the
secured obligation in whole or in part, he has no right of action against anybody
no claim that could be reduced to judgment. (May vs. Vann, 15 Pla., 553; chan
roblesvirtualawlibraryGibson
vs.
Mithell,
16
Pla.,
519; chan
roblesvirtualawlibraryMaxey vs. Carter, 10 Yarg. [Tenn.], 521 Reeves vs. Pulliam, 7
Baxt. [Tenn.], 119; chan roblesvirtualawlibraryErnst vs. Nou, 63 Wis., 134.)
For Defendant administratrix it is averred that the above doctrine refers to a case
where the surety files claims against the estate of the principal debtor; chan
roblesvirtualawlibraryand it is urged that the rule does not apply to the case before
us, where the late Hemady was a surety, not a principal debtor. The argument
evinces a superficial view of the relations between parties. If under the Gaskell
ruling, the Luzon Surety Co., as guarantor, could file a contingent claim against the
estate of the principal debtors if the latter should die, there is absolutely no reason
why it could not file such a claim against the estate of Hemady, since Hemady is a
solidary co-debtor of his principals. What the Luzon Surety Co. may claim from the
estate of a principal debtor it may equally claim from the estate of Hemady, since,
in view of the existing solidarity, the latter does not even enjoy the benefit of
exhaustion of the assets of the principal debtor.
The foregoing ruling is of course without prejudice to the remedies of the
administratrix against the principal debtors under Articles 2071 and 2067 of the
New Civil Code.
Our conclusion is that the solidary guarantors liability is not extinguished by his
death, and that in such event, the Luzon Surety Co., had the right to file against the
estate a contingent claim for reimbursement. It becomes unnecessary now to
discuss the estates liability for premiums and stamp taxes, because irrespective of
the solution to this question, the Luzon Suretys claim did state a cause of action,
and its dismissal was erroneous.
Wherefore, the order appealed from is reversed, and the records are ordered
remanded to the court of origin, with instructions to proceed in accordance with law.
Costs against the Administratrix- Appellee. SO ORDERED.

G.R. No. 125888 August 13, 1998

SPOUSES
ERNESTO
and
EVELYN
SICAD, petitioners,
vs.
COURT OF APPEALS, CATALINO VALDERRAMA, JUDY CRISTINA M.
VALDERRAMA and JESUS ANTONIO VALDERRAMA, respondents.

NARVASA, C.J.:

The issue raised in the appeal by certiorari at bar centers on the character of a deed
of donation executed by the late Aurora Virto DA. de Motinola of the City of Iloilo
as either inter vivos or mortis causa. That deed, entitled "DEED OF DONATION INTER
VIVOS," 1 was executed by Montinola on December 11, 1979. It named as donees
her grandchildren, namely: Catalino Valderrama, Judy Cristina Valderrama and Jesus
Antonio Valderrama: and treated of a parcel of land, Lot 3231 of the Cadastral
Survey of Panay, located at Brgy. Pawa, Panay, Capiz, covered by Transfer Certificate
of Title No. T-16105 in the name of Montinola. The deed also contained the
signatures of the donees in acknowledgment of their acceptance of the donation.
Montinola's Secretary, Gloria Salvilla, afterwards presented the deed for recording in
the Property Registry, and the Register of Deeds cancelled TCT No. T-16105 (the
donor's title) and, in its place, issued TCT No. T-16622 on February 7, 1980, in the
names of the donees. 2 Montinola however retained the owner's duplicate copy of
the new title (No. T-16622), as well as the property itself, until she transferred the
same ten (10) years later, on July 10, 1990, to the spouses, Ernesto and Evelyn
Sicad.
On March 12, 1987, Aurora Montinola drew up a deed of revocation of the
donation, 3 and caused it to be annotated as an adverse claim on TCT No. T-16622
(issued, as aforestated, in her grandchildren's names). Then, on August 24, 1990,
she filed a petition with the Regional Trial Court in Roxas City for the cancellation of
said TCT No. T-16622 and the reinstatement of TCT No. T- 16105 (in her name), the
case being docketed as Special Proceeding No. 3311. Her petition was founded on
the theory that the donation to her three (3) grandchildren was one mortis
causa which thus had to comply with the formalities of a will; and since it had not,
the donation was void and could not effectively serve as basis for the cancellation of
TCT No. T-16105 and the issuance in its place of TCT No. T-16622.
The donees (Montinola's grandchildren) opposed the petition. In their opposition
dated August 29, 1990, they averred that the donation in their favor was one inter
vivos which, having fully complied with the requirements therefor set out in Article
729 of the Civil Code, was perfectly valid and efficacious. They also expressed doubt
about the sincerity of their grandmother's intention to recover the donated
property, since she had not pursued the matter of its revocation after having it
annotated as an adverse claim.
The case, originally treated as a special proceeding, was subsequently considered
by the lower Court as an ordinary civil action in view of the allegations and issues
raised in the pleadings. Pre-trial was had, followed by trial on the merits which was
concluded with the filing of the parties' memoranda. The Trial Court then rendered
judgment on March 27, 1991, holding that the donation was indeed one inter vivos,
and dismissing Aurora Montinola's petition for lack of merit. 4 The matter of its
revocation was not passed upon.

Montinola elevated the case to the Court of Appeals, her appeal being docketed as
CA-G.R. CV No. 33202. She however died on March 10, 1993, 5 while the appeal was
pending.
Shortly after Montinola's demise, a "Manifestation and Motion" dated March 31,
1993 was filed by Ernesto Sicad and Evelyn Bofill-Sicad, herein petitioners, 6 in
which they (a) alleged that they had become the owners of the property covered by
TCT No. T-16622 in virtue of a "deed of definite sale dated May 25, 1992"
accomplished by Montinola in their favor, which was confirmed by "an affidavit
dated November 26, 1997 also executed by the latter, and (b) prayed that they be
substituted as appellants and allowed to prosecute the case in their own behalf.
Another motion was subsequently presented under date of April 7, 1993, this time
by the legal heirs of Aurora Montinola, namely: Ofelia M. de Leon, Estela M. Jaen and
Teresita M. Valderama. They declared that they were not interested in pursuing the
case, and asked that the appeal be withdrawn. Montinola's counsel opposed the
motion.
On June 21, 1993, the Court of Appeals issued a Resolution: (a) ordering the
substitution of the persons above mentioned Ofelia de Leon, Estela M, Jaen, and
Teresita M. Valderama as plaintiffs-appellants in place of the late Aurora
Montinola, as well as the joinder of the spouses Ernesto and Evelyn Bofill-Sicad as
additional appellants; 7 and (b) denying the motion for the withdrawal of the appeal.
On June 30, 1995, the Eighth Division of the Court of Appeals promulgated its
Decision on the case affirming the judgment of the Regional Trial Court; 8 and on July
31, 1996, it denied the separate motions for reconsideration filed by Ofelia M. de
Leon, Estela M. Jaen, and Teresita M. Valderrama, on the one hand, and by the
spouses, Ernest and Evelyn Sicad, on the other. 9
The Sicad Spouses have appealed to this Court; and here, they contend that the
following errors were committed by the Appellate Tribunal, to wit:
1) ** in ruling that the donation was inter vivos and in not
giving due weight to the revocation of the donation; and
2) ** in not ordering that the case be remanded for
further reception of evidence. 10
The Comment filed for private respondents (the donees) under date of December
19, 1996 deals with what they consider the "principal issue in this case ** (i.e.)
whether the donation is mortis causa or inter vivos," and sets forth the argument
that the "donor clearly intended to effect the immediate transfer of ownership to
the donees." that the prohibition in the deed of donation "against selling the
property within ten (10) years after the death of the donor does not indicate that
the donation ismortis causa," that the donor's "alleged act of physically keeping the
title does not suggest any intention to defer the effectivity of the donation," that the

"payment of real property taxes is consistent with the donor's' reservation of the
right of usufruct," that the donor's intent "is not determined by ** (her) self-serving
post-execution declarations," the "donation was never effectively revoked," and
petitioners "have waived their right to question the proceedings in the trial court." 11
The Reply of the Sicad Spouses dated March 14, 1997 reiterates their thesis that the
donation was mortis causa, that "the provisions of the deed of donation indicate
that it was intended to take effect upon the death of the donor," that "the
circumstances surrounding the execution of the deed, and the subsequent actions
of the donor incontrovertibly signify the donor's intent to transfer the property only
after her death," that the donor "did not intend to give effect to the donation," and
that the procedure adopted by the Trial Court in the case was fatally defective. 12 A
"Rejoinder" dated April 3, 1997 was then submitted by the Valderramas, traversing
the assertions of the Reply. 13
Considering the focus of the opposing parties, and their conflicting theories, on the
intention of Aurora Montinola in executing the document entitled "Deed of Donation
Inter Vivos," it is needful to review the circumstances of the signing of that
document by Montinola, as ostensible donor, and her grandchildren, as ostensible
donees.
The evidence establishes that on December 11, 1979, when the deed of donation
prepared by Montinola's lawyer (Atty. Treas) was read and explained by the latter
to the parties, Montinola expressed her wish that the donation take effect only after
ten (10) years from her death, and that the deed include a prohibition on the sale of
the property for such period. Accordingly, a new proviso was inserted in the deed
reading: "however, the donees shall not sell or encumber the properties herein
donated within 10 years after the death of the donor." 14 The actuality of the
subsequent insertion of this new proviso is apparent on the face of the instrument:
the intercalation is easily perceived and identified it was clearly typed on a
different machine, and is crammed into the space between the penultimate
paragraph of the deed and that immediately preceding it. 15
Not only did Aurora Montinola order the insertion in the deed of that restrictive
proviso, but also, after recordation of the deed of donation, she never stopped
treating the property as her own. She continued, as explicity authorized in the deed
itself, to possess the property, enjoy its fruits and otherwise exercise the rights of
dominion, paying the property taxes as they fell due all these she did until she
transferred the Property to the Sicad Spouses on July 10, 1990. She did not give the
new certificate of title to the ostensible donees but retained it, too, until she
delivered it to the Sicads on the occasion of the sale of the property to them. In any
event, the delivery of the title to the donees would have served no useful purpose
since, as just stated, they were prohibited to effect any sale or encumbrance thereof
for a period of ten (10) years after the ostensible donor's decease. And consistent
with these acts denoting retention of ownership of the property was Montinola's
openly expressed view that the donation was ineffectual and could not be given
effect even after ten (10) years from her death. For this view she sought to obtain

judicial approval. She brought suit on August 24, 1990 to cancel TCT No. T-16622
(issued to her grandchildren) premised precisely on the invalidity of the donation for
failure to comply with the requisites of testamentary dispositions. Before that, she
attempted to undo the conveyance to her grandchildren by executing a deed of
revocation of the donation on March 12, 1987, and causing annotation thereof as an
adverse claim on said TCT No. T-16622. She also exercised indisputable acts of
ownership over said property by executing, as just stated, deeds intended to pass
title over it to third parties petitioners herein. 16
As already intimated, the real nature of a deed is to be ascertained by both its
language and the intention of the parties as demonstrated by the circumstances
attendant upon its execution. In this respect, case law has laid down significant
parameters. Thus, in a decision handed down in 1946, 17 this Court construed a
deed purporting to be a donation inter vivosto be in truth one mortis causa because
it stipulated (like the one now being inquired into) "that all rents, proceeds, fruits, of
the donated properties shall remain for the exclusive benefit and disposal of the
donor, Margarita David, during her lifetime; and that, without the knowledge and
consent of the donor, the donated properties could not be disposed of in any way,
whether by sale, mortgage, barter, or in any other way possible," On these essential
premises, the Court said, such a donation must be deemed one "mortis causa,
because the combined effect of the circumstances surrounding the execution of the
deed of donation and of the above-quoted clauses thereof ** (was that) the most
essential elements of ownership the right to dispose of the donated properties
and the right to enjoy the products, profits, possession remained with Margarita
David during her lifetime, and would accrue to the donees only after Margarita
David's death." So, too, in the case at bar, did these rights remain with Aurora
Montinola during her lifetime, and could not pass to the donees until ten (10) years
after her death.
In another case decided in 1954 involving a similar issue, Bonsato v. Court of
Appeals, 18 this Court emphasized that the decisive characteristics of a
donation mortis causa, which it had taken into account in David v. Sison, were that
"the donor not only reserved for herself all the fruits of the property allegedly
conveyed, but what is even more important, specially provided that "without the
knowledge and consent of the donor, the donated properties could not be disposed
of in any way,; thereby denying to the transferees the most essential attribute of
ownership, the power to dispose of the properties."
A donation which purports to be one inter vivos but withholds from the donee the
right to dispose of the donated property during the donor's lifetime is in truth
one mortis causa. In a donation mortis causa "the right of disposition is not
transferred to the donee while the donor is still alive." 19
In the instant case, nothing of any consequence was transferred by the deed of
donation in question to Montinola's grandchildren, the ostensible donees. They did
not get possession of the property donated. They did not acquire the right to the
fruits thereof, or any other right of dominion over the property. More importantly,

they did not acquire the right to dispose of the property this would accrue to
them only after ten (10) years from Montinola's death. Indeed, they never even laid
hands on the certificate of title to the same. They were therefore simply "paper
owners" of the donated property. All these circumstances, including, to repeat, the
explicit provisions of the deed of donation reserving the exercise of rights of
ownership to the donee and prohibiting the sale or encumbrance of the property
until ten (10) years after her death ineluctably lead to the conclusion that the
donation in question was a donation mortis causa, contemplating a transfer of
ownership to the donees only after the donor's demise.
The case of Alejandro v. Geraldez 20 cited by the Court of Appeals in support of its
challenged judgment is not quite relevant. For in the deed of donation there in
issue, there was a partial relinquishment of the right to dispose of the property, in
the event only that this became necessary "to defray the expenses and support of
the donors." That limited right to dispose of the donated lots, said this Court,
"implies that ownership had passed to ** (the donees) by means of the donation
and **, therefore, the donation was already effective during the donors' lifetime.
That is a characteristic of a donation inter vivos." On the other hand, in the case at
bar, the donees were expressly prohibited to make any disposition of any nature or
for any purpose whatever during the donor's lifetime, and until ten (10) years after
her death a prohibition which, it may be added, makes inapplicable the ruling
in Castro v. Court of Appeals, 21 where no such prohibition was imposed, and the
donor retained only the usufruct over the property.
The Valderramas' argument that the donation is inter vivos in character and that the
prohibition against their disposition of the donated property is merely a condition
which, if violated, would give cause for its revocation, begs the question. It assumes
that they have the right to make a disposition of the property, which they do not.
The argument also makes no sense, because if they had the right to dispose of the
property and did in fact dispose of it to a third person, the revocation of the
donation they speak of would be of no utility or benefit to the donor, since such a
revocation would not necessarily result in the restoration of the donor's ownership
and enjoyment of the property.
It is also error to suppose that the donation under review should be deemed
one inter vivos simply because founded on considerations of love and affection.
In Alejandro v. Geraldez, supra, 22 this Court also observed that "the fact that the
donation is given in consideration of love and affection ** is not a characteristic of
donations inter vivos (solely) because transfers mortis causa may also be made for
the same reason." Similarly, in Bonsato v. Court of Appeals, supra, this Court opined
that the fact "that the conveyance was due to the affection of the donor for the
donees and the services rendered by the latter, is of no particular significance in
determining whether the deeds, Exhs. "1" and "2," constitute transfers inter vivos or
not, because a legacy may have identical motivation." 23
Finally, it is germane to advert to the legal principle in Article 1378 of the Civil Code
to the effect that in case of doubt relative to a gratuitous contract, the construction

must
be
interests," 24

that

entailing

"the

least

transmission

of

rights

and

The donation in question, though denominated inter vivos, is in truth one mortis
causa; it is void because the essential requisites for its validity have not been
complied with.
WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CV No. 33202 dated
June 30, 1995 as well as the Resolution denying reconsideration thereof, and the
Decision of the Regional Trial Court in Special Case No. 3311 are SET ASIDE.
The Deed of Donation Inter Vivos (Exh. "A") executed by Aurora Virto Vda. de
Montinola on December 11, 1979 in favor of Catalino M. Valderrama, Judy Cristina
M. Valderrama and Jesus Antonio M. Valderrama is declared null and void. The
Register of Deeds of Roxas City is directed to cancel Transfer Certificate of Title No.
T-16622, revive and reinstate Transfer Certificate of Title No. T-16105.
SO ORDERED.

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.

for

appellee.

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 defendantsappellants, 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 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.
G.R. No. L-28040 August 18, 1972
TESTATE ESTATE OF JOSEFA TANGCO, JOSE DE BORJA, administratorappellee; JOSE DE BORJA, as administrator, CAYETANO DE BORJA, MATILDE
DE BORJA and CRISANTO DE BORJA (deceased) as Children of Josefa
Tangco, appellees,
vs.
TASIANA VDA. DE DE BORJA, Special Administratrix of the Testate Estate of
Francisco de Borja, appellant. .
G.R. No L-28568 August 18, 1972
TESTATE ESTATE OF THE LATE FRANCISCO DE BORJA, TASIANA O. VDA. DE
DE
BORJA,
special
Administratrix
appellee,
vs.
JOSE DE BORJA, oppositor-appellant.
G.R. No. L-28611 August 18, 1972
TASIANA 0. VDA. DE BORJA, as Administratrix of the Testate Estate of the
late
Francisco
de
Borja, plaintiff-appellee,

vs.
JOSE DE BORJA, as Administrator of the Testate Estate of the late Josefa
Tangco, defendant-appellant.
L-28040
Pelaez, Jalandoni & Jamir for administrator-appellee.
Quiogue & Quiogue for appellee Matilde de Borja.
Andres Matias for appellee Cayetano de Borja.
Sevilla & Aquino for appellant.
L-28568
Sevilla & Aquino for special administratrix-appellee.
Pelaez, Jalandoni & Jamir for oppositor-appellant.
L-28611
Sevilla & Aquino for plaintiff-appellee.
Pelaez, Jalandoni & Jamir and David Gueverra for defendant-appellant.

REYES, J.B.L., J.:p

Of these cases, the first, numbered L-28040 is an appeal by Tasiana Ongsingco Vda.
de de Borja, special administratrix of the testate estate of Francisco de Borja, 1 from
the approval of a compromise agreement by the Court of First Instance of Rizal,
Branch I, in its Special Proceeding No. R-7866, entitled, "Testate Estate of Josefa
Tangco, Jose de Borja, Administrator".
Case No. L-28568 is an appeal by administrator Jose Borja from the disapproval of
the same compromise agreement by the Court of First Instance of Nueva Ecija,
Branch II, in its Special Proceeding No. 832, entitled, "Testate Estate of Francisco de
Borja, Tasiana O. Vda. de de Borja, Special Administratrix".
And Case No. L-28611 is an appeal by administrator Jose de Borja from the decision
of the Court of First Instance of Rizal, Branch X, in its Civil Case No. 7452, declaring
the Hacienda Jalajala Poblacion, which is the main object of the aforesaid
compromise agreement, as the separate and exclusive property of the late
Francisco de Borja and not a conjugal asset of the community with his first wife,
Josefa Tangco, and that said hacienda pertains exclusively to his testate estate,

which is under administrator in Special Proceeding No. 832 of the Court of First
Instance of Nueva Ecija, Branch II.
It is uncontested that Francisco de Borja, upon the death of his wife Josefa Tangco
on 6 October 1940, filed a petition for the probate of her will which was docketed as
Special Proceeding No. R-7866 of the Court of First Instance of Rizal, Branch I. The
will was probated on 2 April 1941. In 1946, Francisco de Borja was appointed
executor and administrator: in 1952, their son, Jose de Borja, was appointed coadministrator. When Francisco died, on 14 April 1954, Jose became the sole
administrator of the testate estate of his mother, Josefa Tangco. While a widower
Francisco de Borja allegedly took unto himself a second wife, Tasiana Ongsingco.
Upon Francisco's death, Tasiana instituted testate proceedings in the Court of First
Instance of Nueva Ecija, where, in 1955, she was appointed special administratrix.
The validity of Tasiana's marriage to Francisco was questioned in said proceeding.
The relationship between the children of the first marriage and Tasiana Ongsingco
has been plagued with several court suits and counter-suits; including the three
cases at bar, some eighteen (18) cases remain pending determination in the courts.
The testate estate of Josefa Tangco alone has been unsettled for more than a
quarter of a century. In order to put an end to all these litigations, a compromise
agreement was entered into on 12 October 1963, 2 by and between "[T]he heir and
son of Francisco de Borja by his first marriage, namely, Jose de Borja personally and
as administrator of the Testate Estate of Josefa Tangco," and "[T]he heir and
surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco
Vda. de Borja, assisted by her lawyer, Atty. Luis Panaguiton Jr." The terms and
conditions of the compromise agreement are as follows:
AGREEMENT
THIS AGREEMENT made and entered into by and between
The heir and son of Francisco de Borja by his first marriage, namely,
Jose de Borja personally and as administrator of the Testate Estate of
Josefa Tangco,
AND
The heir and surviving spouse of Francisco de Borja by his second
marriage, Tasiana Ongsingco Vda. de Borja, assisted by her lawyer,
Atty. Luis Panaguiton Jr.
WITNESSETH
THAT it is the mutual desire of all the parties herein terminate and
settle, with finality, the various court litigations, controversies, claims,
counterclaims, etc., between them in connection with the
administration, settlement, partition, adjudication and distribution of

the assets as well as liabilities of the estates of Francisco de Borja and

Josefa Tangco, first spouse of Francisco de Borja.
THAT with this end in view, the parties herein have agreed voluntarily
and without any reservations to enter into and execute this agreement
under the following terms and conditions:
1. That the parties agree to sell the Poblacion portion of the Jalajala
properties situated in Jalajala, Rizal, presently under administration in
the Testate Estate of Josefa Tangco (Sp. Proc. No. 7866, Rizal), more
specifically described as follows:
Linda al Norte con el Rio Puwang que la separa de la
jurisdiccion del Municipio de Pililla de la Provincia de Rizal,
y con el pico del Monte Zambrano; al Oeste con Laguna
de Bay; por el Sur con los herederos de Marcelo de Borja;
y por el Este con los terrenos de la Familia Maronilla
with a segregated area of approximately 1,313 hectares at the amount
of P0.30 per square meter.
2. That Jose de Borja agrees and obligates himself to pay Tasiana
Ongsingco Vda. de de Borja the total amount of Eight Hundred
Thousand Pesos (P800,000) Philippine Currency, in cash, which
represent P200,000 as his share in the payment and P600,000 as prorata shares of the heirs Crisanto, Cayetano and Matilde, all surnamed
de Borja and this shall be considered as full and complete payment
and settlement of her hereditary share in the estate of the late
Francisco de Borja as well as the estate of Josefa Tangco, Sp. Proc. No.
832-Nueva Ecija and Sp. Proc. No. 7866-Rizal, respectively, and to any
properties bequeathed or devised in her favor by the late Francisco de
Borja by Last Will and Testament or by Donation Inter Vivos or Mortis
Causa or purportedly conveyed to her for consideration or otherwise.
The funds for this payment shall be taken from and shall depend upon
the receipt of full payment of the proceeds of the sale of Jalajala,
"Poblacion."
3. That Tasiana Ongsingco Vda. de de Borja hereby assumes payment
of that particular obligation incurred by the late Francisco de Borja in
favor of the Rehabilitation Finance Corporation, now Development Bank
of the Philippines, amounting to approximately P30,000.00 and also
assumes payment of her 1/5 share of the Estate and Inheritance taxes
on the Estate of the late Francisco de Borja or the sum of P3,500.00,
more or less, which shall be deducted by the buyer of Jalajala,
"Poblacion" from the payment to be made to Tasiana Ongsingco Vda.
de Borja under paragraph 2 of this Agreement and paid directly to the

Development Bank of the Philippines and the heirs-children of

Francisco de Borja.
4. Thereafter, the buyer of Jalajala "Poblacion" is hereby authorized to
pay directly to Tasiana Ongsingco Vda. de de Borja the balance of the
payment due her under paragraph 2 of this Agreement (approximately
P766,500.00) and issue in the name of Tasiana Ongsingco Vda. de de
Borja, corresponding certified checks/treasury warrants, who, in turn,
will issue the corresponding receipt to Jose de Borja.
5. In consideration of above payment to Tasiana Ongsingco Vda. de de
Borja, Jose de Borja personally and as administrator of the Testate
Estate of Josefa Tangco, and Tasiana Ongsingco Vda. de de Borja, for
themselves and for their heirs, successors, executors, administrators,
and assigns, hereby forever mutually renounce, withdraw, waive,
remise, release and discharge any and all manner of action or actions,
cause or causes of action, suits, debts, sum or sums of money,
accounts, damages, claims and demands whatsoever, in law or in
equity, which they ever had, or now have or may have against each
other, more specifically Sp. Proceedings Nos. 7866 and 1955, CFI-Rizal,
and Sp. Proc. No. 832-Nueva Ecija, Civil Case No. 3033, CFI Nueva Ecija
and Civil Case No. 7452-CFI, Rizal, as well as the case filed against
Manuel Quijal for perjury with the Provincial Fiscal of Rizal, the
intention being to completely, absolutely and finally release each
other, their heirs, successors, and assigns, from any and all liability,
arising wholly or partially, directly or indirectly, from the
administration, settlement, and distribution of the assets as well as
liabilities of the estates of Francisco de Borja and Josefa Tangco, first
spouse of Francisco de Borja, and lastly, Tasiana Ongsingco Vda. de de
Borja expressly and specifically renounce absolutely her rights as heir
over any hereditary share in the estate of Francisco de Borja.
6. That Tasiana Ongsingco Vda. de de Borja, upon receipt of the
payment under paragraph 4 hereof, shall deliver to the heir Jose de
Borja all the papers, titles and documents belonging to Francisco de
Borja which are in her possession and said heir Jose de Borja shall issue
in turn the corresponding receive thereof.
7. That this agreement shall take effect only upon the fulfillment of the
sale of the properties mentioned under paragraph 1 of this agreement
and upon receipt of the total and full payment of the proceeds of the
sale of the Jalajala property "Poblacion", otherwise, the non-fulfillment
of the said sale will render this instrument NULL AND VOID AND
WITHOUT EFFECT THEREAFTER.
IN WITNESS WHEREOF, the parties hereto have her unto set their
hands in the City of Manila, Philippines, the 12th of October, 1963.

On 16 May 1966, Jose de Borja submitted for Court approval the agreement of 12
October 1963 to the Court of First Instance of Rizal, in Special Proceeding No. R7866; and again, on 8 August 1966, to the Court of First Instance of Nueva Ecija, in
Special Proceeding No. 832. Tasiana Ongsingco Vda. de de Borja opposed in both
instances. The Rizal court approved the compromise agreement, but the Nueva
Ecija court declared it void and unenforceable. Special administratrix Tasiana
Ongsingco Vda. de de Borja appealed the Rizal Court's order of approval (now
Supreme Court G.R. case No. L-28040), while administrator Jose de Borja appealed
the order of disapproval (G.R. case No. L-28568) by the Court of First Instance of
Nueva Ecija.
The genuineness and due execution of the compromised agreement of 12 October
1963 is not disputed, but its validity is, nevertheless, attacked by Tasiana Ongsingco
on the ground that: (1) the heirs cannot enter into such kind of agreement without
first probating the will of Francisco de Borja; (2) that the same involves a
compromise on the validity of the marriage between Francisco de Borja and Tasiana
Ongsingco; and (3) that even if it were valid, it has ceased to have force and effect.
It is likewise pointed out by appellant Tasiana Ongsingco that Section 1 of
Rule 74 of the Revised Rules explicitly conditions the validity of an extrajudicial
settlement of a decedent's estate by agreement between heirs, upon the facts that
"(if) the decedentleft no will and no debts, and the heirs are all of age, or the minors
are represented by their judicial and legal representatives ..." The will of Francisco
de Borja having been submitted to the Nueva Ecija Court and still pending probate
when the 1963 agreement was made, those circumstances, it is argued, bar the
validity of the agreement.
Upon the other hand, in claiming the validity of the compromise agreement, Jose de
Borja stresses that at the time it was entered into, on 12 October 1963, the
governing provision was Section 1, Rule 74 of the original Rules of Court of 1940,
which allowed the extrajudicial settlement of the estate of a deceased person
regardless of whether he left a will or not. He also relies on the dissenting opinion of
Justice Moran, in Guevara vs. Guevara, 74 Phil. 479, wherein was expressed the
view that if the parties have already divided the estate in accordance with a
decedent's will, the probate of the will is a useless ceremony; and if they have
divided the estate in a different manner, the probate of the will is worse than
useless.
The doctrine of Guevara vs. Guevara, ante, is not applicable to the case at bar. This
is apparent from an examination of the terms of the agreement between Jose de
Borja and Tasiana Ongsingco. Paragraph 2 of said agreement specifically stipulates
that the sum of P800,000 payable to Tasiana Ongsingco
shall be considered as full complete payment settlement of her
hereditary share in the estate of the late Francisco de Borja as well as
the estate of Josefa Tangco, ... and to any properties bequeathed or
devised in her favor by the late Francisco de Borja by Last Will and

Testament or by Donation Inter Vivos or Mortis Causa or purportedly

conveyed to her for consideration or otherwise.
This provision evidences beyond doubt that the ruling in the Guevara case is not
applicable to the cases at bar. There was here no attempt to settle or distribute the
estate of Francisco de Borja among the heirs thereto before the probate of his will.
The clear object of the contract was merely the conveyance by Tasiana Ongsingco
of any and all her individual share and interest, actual or eventual in the estate of
Francisco de Borja and Josefa Tangco. There is no stipulation as to any other
claimant, creditor or legatee. And as a hereditary share in a decedent's estate is
transmitted or vested immediately from the moment of the death of
such causante or predecessor in interest (Civil Code of the Philippines, Art.
777) 3 there is no legal bar to a successor (with requisite contracting capacity)
disposing of her or his hereditary share immediately after such death, even if the
actual extent of such share is not determined until the subsequent liquidation of the
estate. 4 Of course, the effect of such alienation is to be deemed limited to what is
ultimately adjudicated to the vendor heir. However, the aleatory character of the
contract does not affect the validity of the transaction; neither does the coetaneous
agreement that the numerous litigations between the parties (the approving order
of the Rizal Court enumerates fourteen of them, Rec. App. pp. 79-82) are to be
considered settled and should be dismissed, although such stipulation, as noted by
the Rizal Court, gives the contract the character of a compromise that the law
favors, for obvious reasons, if only because it serves to avoid a multiplicity of suits.
It is likewise worthy of note in this connection that as the surviving spouse of
Francisco de Borja, Tasiana Ongsingco was his compulsory heir under article 995 et
seq. of the present Civil Code. Wherefore, barring unworthiness or valid
disinheritance, her successional interest existed independent of Francisco de Borja's
last will and testament and would exist even if such will were not probated at all.
Thus, the prerequisite of a previous probate of the will, as established in the
Guevara and analogous cases, can not apply to the case of Tasiana Ongsingco Vda.
de de Borja.
Since the compromise contract Annex A was entered into by and between "Jose de
Borja personally and as administrator of the Testate Estate of Josefa Tangco" on the
one hand, and on the other, "the heir and surviving spouse of Francisco de Borja by
his second marriage, Tasiana Ongsingco Vda. de de Borja", it is clear that the
transaction was binding on both in their individual capacities, upon the perfection of
the contract, even without previous authority of the Court to enter into the same.
The only difference between an extrajudicial compromise and one that is submitted
and approved by the Court, is that the latter can be enforced by execution
proceedings. Art. 2037 of the Civil Code is explicit on the point:
8. Art. 2037. A compromise has upon the parties the effect and
authority of res judicata; but there shall be no execution except in
compliance with a judicial compromise.

It is argued by Tasiana Ongsingco that while the agreement Annex A

expressed no definite period for its performance, the same
was intended to have a resolutory period of 60 days for its
effectiveness. In support of such contention, it is averred that such a
limit was expressly stipulated in an agreement in similar terms entered
into by said Ongsingco with the brothers and sister of Jose de Borja, to
wit, Crisanto, Matilde and Cayetano, all surnamed de Borja, except that
the consideration was fixed at P600,000 (Opposition, Annex/Rec. of
Appeal, L-28040, pp. 39- 46) and which contained the following clause:
III. That this agreement shall take effect only upon the consummation
of the sale of the property mentioned herein and upon receipt of the
total and full payment of the proceeds of the sale by the herein owner
heirs-children of Francisco de Borja, namely, Crisanto, Cayetano and
Matilde, all surnamed de Borja; Provided that if no sale of the said
property mentioned herein is consummated, or the non-receipt of the
purchase price thereof by the said owners within the period of sixty
(60) days from the date hereof, this agreement will become null and
void and of no further effect.
Ongsingco's argument loses validity when it is considered that Jose de Borja was not
a party to this particular contract (Annex 1), and that the same appears not to have
been finalized, since it bears no date, the day being left blank "this day of
October 1963"; and while signed by the parties, it was not notarized, although
plainly intended to be so done, since it carries a proposed notarial ratification
clause. Furthermore, the compromise contract with Jose de Borja (Annex A),
provides in its par. 2 heretofore transcribed that of the total consideration of P800,
000 to be paid to Ongsingco, P600,000 represent the "prorata share of the heirs
Crisanto, Cayetano and Matilde all surnamed de Borja" which corresponds to the
consideration of P600,000 recited in Annex 1, and that circumstance is proof that
the duly notarized contract entered into wit Jose de Borja under date 12 October
1963 (Annex A), was designed to absorb and supersede the separate unformalize
agreement with the other three Borja heirs. Hence, the 60 days resolutory term in
the contract with the latter (Annex 1) not being repeated in Annex A, can not apply
to the formal compromise with Jose de Borja. It is moreover manifest that the
stipulation that the sale of the Hacienda de Jalajala was to be made within sixty
days from the date of the agreement with Jose de Borja's co-heirs (Annex 1) was
plainly omitted in Annex A as improper and ineffective, since the Hacienda de
Jalajala (Poblacion) that was to be sold to raise the P800,000 to be paid to
Ongsingco for her share formed part of the estate of Francisco de Borja and could
not be sold until authorized by the Probate Court. The Court of First Instance of Rizal
so understood it, and in approving the compromise it fixed a term of 120 days
counted from the finality of the order now under appeal, for the carrying out by the
parties for the terms of the contract.
This brings us to the plea that the Court of First Instance of Rizal had no jurisdiction
to approve the compromise with Jose de Borja (Annex A) because Tasiana Ongsingco

was not an heir in the estate of Josefa Tangco pending settlement in the Rizal Court,
but she was an heir of Francisco de Borja, whose estate was the object of Special
Proceeding No. 832 of the Court of First Instance of Nueva Ecija. This circumstance
is irrelevant, since what was sold by Tasiana Ongsingco was only her eventual share
in the estate of her late husband, not the estate itself; and as already shown, that
eventual share she owned from the time of Francisco's death and the Court of
Nueva Ecija could not bar her selling it. As owner of her undivided hereditary share,
Tasiana could dispose of it in favor of whomsoever she chose. Such alienation is
expressly recognized and provided for by article 1088 of the present Civil Code:
Art. 1088. Should any of the heirs sell his hereditary rights to a
stranger before the partition, any or all of the co-heirs may be
subrogated to the rights of the purchaser by reimbursing him for the
price of the sale, provided they do so within the period of one month
from the time they were notified in writing of the sale of the vendor.
If a sale of a hereditary right can be made to a stranger, then a fortiori sale thereof
to a coheir could not be forbidden.
Tasiana Ongsingco further argues that her contract with Jose de Borja (Annex "A") is
void because it amounts to a compromise as to her status and marriage with the
late Francisco de Borja. The point is without merit, for the very opening paragraph
of the agreement with Jose de Borja (Annex "A") describes her as "the heir and
surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco
Vda. de de Borja", which is in itself definite admission of her civil status. There is
nothing in the text of the agreement that would show that this recognition of
Ongsingco's status as the surviving spouse of Francisco de Borja was only made in
consideration of the cession of her hereditary rights.
It is finally charged by appellant Ongsingco, as well as by the Court of First Instance
of Nueva Ecija in its order of 21 September 1964, in Special Proceedings No. 832
(Amended Record on Appeal in L-28568, page 157), that the compromise
agreement of 13 October 1963 (Annex "A") had been abandoned, as shown by the
fact that, after its execution, the Court of First Instance of Nueva Ecija, in its order of
21 September 1964, had declared that "no amicable settlement had been arrived at
by the parties", and that Jose de Borja himself, in a motion of 17 June 1964, had
stated that the proposed amicable settlement "had failed to materialize".
It is difficult to believe, however, that the amicable settlement referred to in the
order and motion above-mentioned was the compromise agreement of 13 October
1963, which already had been formally signed and executed by the parties and duly
notarized. What the record discloses is that some time after its formalization,
Ongsingco had unilaterally attempted to back out from the compromise agreement,
pleading various reasons restated in the opposition to the Court's approval of Annex
"A" (Record on Appeal, L-20840, page 23): that the same was invalid because of the
lapse of the allegedly intended resolutory period of 60 days and because the
contract was not preceded by the probate of Francisco de Borja's will, as required by

this Court's Guevarra vs. Guevara ruling; that Annex "A" involved a compromise
affecting Ongsingco's status as wife and widow of Francisco de Borja, etc., all of
which objections have been already discussed. It was natural that in view of the
widow's attitude, Jose de Borja should attempt to reach a new settlement or
novatory agreement before seeking judicial sanction and enforcement of Annex "A",
since the latter step might ultimately entail a longer delay in attaining final remedy.
That the attempt to reach another settlement failed is apparent from the letter of
Ongsingco's counsel to Jose de Borja quoted in pages 35-36 of the brief for
appellant Ongsingco in G.R. No. 28040; and it is more than probable that the order
of 21 September 1964 and the motion of 17 June 1964 referred to the failure of the
parties' quest for a more satisfactory compromise. But the inability to reach a
novatory accord can not invalidate the original compromise (Annex "A") and justifies
the act of Jose de Borja in finally seeking a court order for its approval and
enforcement from the Court of First Instance of Rizal, which, as heretofore
described, decreed that the agreement be ultimately performed within 120 days
from the finality of the order, now under appeal.
We conclude that in so doing, the Rizal court acted in accordance with law, and,
therefore, its order should be upheld, while the contrary resolution of the Court of
First Instance of Nueva Ecija should be, and is, reversed.
In her brief, Tasiana Ongsingco also pleads that the time elapsed in the appeal has
affected her unfavorably, in that while the purchasing power of the agreed price of
P800,000 has diminished, the value of the Jalajala property has increased. But the
fact is that her delay in receiving the payment of the agreed price for her hereditary
interest was primarily due to her attempts to nullify the agreement (Annex "A") she
had formally entered into with the advice of her counsel, Attorney Panaguiton. And
as to the devaluation de facto of our currency, what We said in Dizon Rivera vs.
Dizon, L-24561, 30 June 1970, 33 SCRA 554, that "estates would never be settled if
there were to be a revaluation with every subsequent fluctuation in the values of
currency and properties of the estate", is particularly opposite in the present case.
Coming now to Case G.R. No. L-28611, the issue is whether the Hacienda de Jalajala
(Poblacion), concededly acquired by Francisco de Borja during his marriage to his
first wife, Josefa Tangco, is the husband's private property (as contended by his
second spouse, Tasiana Ongsingco), or whether it forms part of the conjugal
(ganancial) partnership with Josefa Tangco. The Court of First Instance of Rizal
(Judge Herminio Mariano, presiding) declared that there was adequate evidence to
overcome the presumption in favor of its conjugal character established by Article
160 of the Civil Code.
We are of the opinion that this question as between Tasiana Ongsingco and Jose de
Borja has become moot and academic, in view of the conclusion reached by this
Court in the two preceding cases (G.R. No. L-28568), upholding as valid the cession
of Tasiana Ongsingco's eventual share in the estate of her late husband, Francisco
de Borja, for the sum of P800,000 with the accompanying reciprocal quit-claims

between the parties. But as the question may affect the rights of possible creditors
and legatees, its resolution is still imperative.
It is undisputed that the Hacienda Jalajala, of around 4,363 hectares, had been
originally acquired jointly by Francisco de Borja, Bernardo de Borja and Marcelo de
Borja and their title thereto was duly registered in their names as co-owners in Land
Registration Case No. 528 of the province of Rizal, G.L.R.O. Rec. No. 26403 (De Barjo
vs. Jugo, 54 Phil. 465). Subsequently, in 1931, the Hacienda was partitioned among
the co-owners: the Punta section went to Marcelo de Borja; the Bagombong section
to Bernardo de Borja, and the part in Jalajala proper (Poblacion) corresponded to
Francisco de Borja (V. De Borja vs. De Borja 101 Phil. 911, 932).
The lot allotted to Francisco was described as
Una Parcela de terreno en Poblacion, Jalajala: N. Puang River; E.
Hermogena Romero; S. Heirs of Marcelo de Borja O. Laguna de Bay;
containing an area of 13,488,870 sq. m. more or less, assessed at
P297,410. (Record on Appeal, pages 7 and 105)
On 20 November 1962, Tasiana O. Vda. de Borja, as Administratrix of the Testate
Estate of Francisco de Borja, instituted a complaint in the Court of First Instance of
Rizal (Civil Case No. 7452) against Jose de Borja, in his capacity as Administrator of
Josefa Tangco (Francisco de Borja's first wife), seeking to have the Hacienda above
described declared exclusive private property of Francisco, while in his answer
defendant (now appellant) Jose de Borja claimed that it was conjugal property of his
parents (Francisco de Borja and Josefa Tangco), conformably to the presumption
established by Article 160 of the Philippine Civil Code (reproducing Article 1407 of
the Civil Code of 1889), to the effect that:
Art. 160. All property of the marriage is presumed to belong to the
conjugal partnership, unless it be proved that it pertains exclusively to
the husband or to the wife.
Defendant Jose de Borja further counterclaimed for damages, compensatory, moral
and exemplary, as well as for attorney's fees.
After trial, the Court of First Instance of Rizal, per Judge Herminio Mariano, held that
the plaintiff had adduced sufficient evidence to rebut the presumption, and declared
the Hacienda de Jalajala (Poblacion) to be the exclusive private property of the late
Francisco de Borja, and his Administratrix, Tasiana Ongsingco Vda. de Borja, to be
entitled to its possession. Defendant Jose de Borja then appealed to this Court.
The evidence reveals, and the appealed order admits, that the character of the
Hacienda in question as owned by the conjugal partnership De Borja-Tangco was
solemnly admitted by the late Francisco de Borja no less than two times: first, in the
Reamended Inventory that, as executor of the estate of his deceased wife Josefa
Tangco, he filed in the Special Proceedings No. 7866 of the Court of First Instance of

Rizal on 23 July 1953 (Exhibit "2"); and again, in the Reamended Accounting of the
same date, also filed in the proceedings aforesaid (Exhibit "7"). Similarly, the
plaintiff Tasiana O. Vda. de Borja, herself, as oppositor in the Estate of Josefa Tangco,
submitted therein an inventory dated 7 September 1954 (Exhibit "3") listing the
Jalajala property among the "Conjugal Properties of the Spouses Francisco de Borja
and Josefa Tangco". And once more, Tasiana Ongsingco, as administratrix of the
Estate of Francisco de Borja, in Special Proceedings No. 832 of the Court of First
Instance of Nueva Ecija, submitted therein in December, 1955, an inventory wherein
she listed the Jalajala Hacienda under the heading "Conjugal Property of the
Deceased Spouses Francisco de Borja and Josefa Tangco, which are in the
possession of the Administrator of the Testate Estate of the Deceased Josefa Tangco
in Special Proceedings No. 7866 of the Court of First Instance of Rizal" (Exhibit "4").
Notwithstanding the four statements aforesaid, and the fact that they are plain
admissions against interest made by both Francisco de Borja and the Administratrix
of his estate, in the course of judicial proceedings in the Rizal and Nueva Ecija
Courts, supporting the legal presumption in favor of the conjugal community, the
Court below declared that the Hacienda de Jalajala (Poblacion) was not conjugal
property, but the private exclusive property of the late Francisco de Borja. It did so
on the strength of the following evidences: (a) the sworn statement by Francis de
Borja on 6 August 1951 (Exhibit "F") that
He tomado possession del pedazo de terreno ya delimitado
(equivalente a 1/4 parte, 337 hectareas) adjunto a mi terreno personal
y exclusivo (Poblacion de Jalajala, Rizal).
and (b) the testimony of Gregorio de Borja, son of Bernardo de Borja, that the entire
Hacienda had been bought at a foreclosure sale for P40,100.00, of which amount
P25,100 was contributed by Bernardo de Borja and P15,000. by Marcelo de Borja;
that upon receipt of a subsequent demand from the provincial treasurer for realty
taxes the sum of P17,000, Marcelo told his brother Bernardo that Francisco (son of
Marcelo) wanted also to be a co-owner, and upon Bernardo's assent to the proposal,
Marcelo issue a check for P17,000.00 to pay the back taxes and said that the
amount would represent Francisco's contribution in the purchase of the Hacienda.
The witness further testified that
Marcelo de Borja said that that money was entrusted to him by
Francisco de Borja when he was still a bachelor and which he derived
from his business transactions. (Hearing, 2 February 1965, t.s.n., pages
13-15) (Emphasis supplied)
The Court below, reasoning that not only Francisco's sworn statement overweighed
the admissions in the inventories relied upon by defendant-appellant Jose de Borja
since probate courts can not finally determine questions of ownership of inventoried
property, but that the testimony of Gregorio de Borja showed that Francisco de
Borja acquired his share of the original Hacienda with his private funds, for which
reason that share can not be regarded as conjugal partnership property, but as

exclusive property of the buyer, pursuant to Article 1396(4) of Civil Code of 1889
and Article 148(4) of the Civil Code of the Philippines.
The following shall be the exclusive property of each spouse:
xxx xxx xxx
(4) That which is purchased with exclusive money of the wife or of the
husband.
We find the conclusions of the lower court to be untenable. In the first place,
witness Gregorio de Borja's testimony as to the source of the money paid by
Francisco for his share was plain hearsay, hence inadmissible and of no probative
value, since he was merely repeating what Marcelo de Borja had told him
(Gregorio). There is no way of ascertaining the truth of the statement, since both
Marcelo and Francisco de Borja were already dead when Gregorio testified. In
addition, the statement itself is improbable, since there was no need or occasion for
Marcelo de Borja to explain to Gregorio how and when Francisco de Borja had
earned the P17,000.00 entrusted to Marcelo. A ring of artificiality is clearly
discernible in this portion of Gregorio's testimony.
As to Francisco de Borja's affidavit, Exhibit "F", the quoted portion thereof (ante,
page 14) does not clearly demonstrate that the "mi terreno personal y exclusivo
(Poblacion de Jalajala, Rizal) " refers precisely to the Hacienda in question. The
inventories (Exhibits 3 and 4) disclose that there were two real properties in Jalajala
owned by Francisco de Borja, one of 72.038 sq. m., assessed at P44,600, and a
much bigger one of 1,357.260.70 sq. m., which is evidently the Hacienda de Jalajala
(Poblacion). To which of these lands did the affidavit of Francisco de Borja (Exhibit
"F") refer to? In addition, Francisco's characterization of the land as "mi terreno
personal y exclusivo" is plainly self-serving, and not admissible in the absence of
cross examination.
It may be true that the inventories relied upon by defendant-appellant (Exhibits "2",
"3", "4" and "7") are not conclusive on the conjugal character of the property in
question; but as already noted, they are clear admissions against the pecuniary
interest of the declarants, Francisco de Borja and his executor-widow, Tasiana
Ongsingco, and as such of much greater probative weight than the self-serving
statement of Francisco (Exhibit "F"). Plainly, the legal presumption in favor of the
conjugal character of the Hacienda de Jalajala (Poblacion) now in dispute has not
been rebutted but actually confirmed by proof. Hence, the appealed order should be
reversed and the Hacienda de Jalajala (Poblacion) declared property of the conjugal
partnership of Francisco de Borja and Josefa Tangco.
No error having been assigned against the ruling of the lower court that claims for
damages should be ventilated in the corresponding special proceedings for the
settlement of the estates of the deceased, the same requires no pro announcement
from this Court.

IN VIEW OF THE FOREGOING, the appealed order of the Court of First Instance of
Rizal in Case No. L-28040 is hereby affirmed; while those involved in Cases Nos. L28568 and L-28611 are reversed and set aside. Costs against the appellant Tasiana
Ongsingco Vda. de Borja in all three (3) cases.
Concepcion, C.J., Makalintal, Zaldivar, Castro, Teehankee, Barredo, Makasiar,
Antonio and Esguerra, JJ., concur.
Fernando, J., took no part.

G.R. No. L-41715 June 18, 1976

ROSALIO BONILLA (a minor) SALVACION BONILLA (a minor) and PONCIANO
BONILLA
(their
father)
who
represents
the
minors, petitioners,
vs.
LEON BARCENA, MAXIMA ARIAS BALLENA, ESPERANZA BARCENA, MANUEL
BARCENA, AGUSTINA NERI, widow of JULIAN TAMAYO and HON. LEOPOLDO
GIRONELLA of the Court of First Instance of Abra,respondents.
Federico Paredes for petitioners.
Demetrio V. Pre for private respondents.

MARTIN, J:
This is a petition for review 1 of the Order of the Court of First Instance of Abra in
Civil Case No. 856, entitled Fortunata Barcena vs. Leon Barcena, et al., denying the
motions for reconsideration of its order dismissing the complaint in the
aforementioned case.
On March 31, 1975 Fortunata Barcena, mother of minors Rosalio Bonilla and
Salvacion Bonilla and wife of Ponciano Bonilla, instituted a civil action in the Court of
First Instance of Abra, to quiet title over certain parcels of land located in Abra.
On May 9, 1975, defendants filed a written motion to dismiss the complaint, but
before the hearing of the motion to dismiss, the counsel for the plaintiff moved to
amend the complaint in order to include certain allegations therein. The motion to
amend the complaint was granted and on July 17, 1975, plaintiffs filed their
amended complaint.
On August 4, 1975, the defendants filed another motion to dismiss the complaint on
the ground that Fortunata Barcena is dead and, therefore, has no legal capacity to
sue. Said motion to dismiss was heard on August 14, 1975. In said hearing, counsel
for the plaintiff confirmed the death of Fortunata Barcena, and asked for substitution

by her minor children and her husband, the petitioners herein; but the court after
the hearing immediately dismissed the case on the ground that a dead person
cannot be a real party in interest and has no legal personality to sue.
On August 19, 1975, counsel for the plaintiff received a copy of the order dismissing
the complaint and on August 23, 1975, he moved to set aside the order of the
dismissal pursuant to Sections 16 and 17 of Rule 3 of the Rules of Court. 2
On August 28, 1975, the court denied the motion for reconsideration filed by
counsel for the plaintiff for lack of merit. On September 1, 1975, counsel for
deceased plaintiff filed a written manifestation praying that the minors Rosalio
Bonilla and Salvacion Bonilla be allowed to substitute their deceased mother, but
the court denied the counsel's prayer for lack of merit. From the order, counsel for
the deceased plaintiff filed a second motion for reconsideration of the order
dismissing the complaint claiming that the same is in violation of Sections 16 and
17 of Rule 3 of the Rules of Court but the same was denied.
Hence, this petition for review.
The Court reverses the respondent Court and sets aside its order dismissing the
complaint in Civil Case No. 856 and its orders denying the motion for
reconsideration of said order of dismissal. While it is true that a person who is dead
cannot sue in court, yet he can be substituted by his heirs in pursuing the case up
to its completion. The records of this case show that the death of Fortunata Barcena
took place on July 9, 1975 while the complaint was filed on March 31, 1975. This
means that when the complaint was filed on March 31, 1975, Fortunata Barcena
was still alive, and therefore, the court had acquired jurisdiction over her person. If
thereafter she died, the Rules of Court prescribes the procedure whereby a party
who died during the pendency of the proceeding can be substituted. Under Section
16, Rule 3 of the Rules of Court "whenever a party to a pending case dies ... it shall
be the duty of his attorney to inform the court promptly of such death ... and to give
the name and residence of his executor, administrator, guardian or other legal
representatives." This duty was complied with by the counsel for the deceased
plaintiff when he manifested before the respondent Court that Fortunata Barcena
died on July 9, 1975 and asked for the proper substitution of parties in the case. The
respondent Court, however, instead of allowing the substitution, dismissed the
complaint on the ground that a dead person has no legal personality to sue. This is
a grave error. Article 777 of the Civil Code provides "that the rights to the
succession are transmitted from the moment of the death of the decedent." From
the moment of the death of the decedent, the heirs become the absolute owners of
his property, subject to the rights and obligations of the decedent, and they cannot
be deprived of their rights thereto except by the methods provided for by law. 3 The
moment of death is the determining factor when the heirs acquire a definite right to
the inheritance whether such right be pure or contingent. 4 The right of the heirs to
the property of the deceased vests in them even before judicial declaration of their
being heirs in the testate or intestate proceedings. 5 When Fortunata Barcena,
therefore, died her claim or right to the parcels of land in litigation in Civil Case No.
856, was not extinguished by her death but was transmitted to her heirs upon her
death. Her heirs have thus acquired interest in the properties in litigation and
became parties in interest in the case. There is, therefore, no reason for the

respondent Court not to allow their substitution as parties in interest for the
deceased plaintiff.
Under Section 17, Rule 3 of the Rules of Court "after a party dies and the claim is
not thereby extinguished, the court shall order, upon proper notice, the legal
representative of the deceased to appear and be substituted for the deceased,
within such time as may be granted ... ." The question as to whether an action
survives or not depends on the nature of the action and the damage sued for. 6 In
the causes of action which survive the wrong complained affects primarily and
principally property and property rights, the injuries to the person being merely
incidental, while in the causes of action which do not survive the injury complained
of is to the person, the property and rights of property affected being
incidental. 7 Following the foregoing criterion the claim of the deceased plaintiff
which is an action to quiet title over the parcels of land in litigation affects primarily
and principally property and property rights and therefore is one that survives even
after her death. It is, therefore, the duty of the respondent Court to order the legal
representative of the deceased plaintiff to appear and to be substituted for her. But
what the respondent Court did, upon being informed by the counsel for the
deceased plaintiff that the latter was dead, was to dismiss the complaint. This
should not have been done for under the same Section 17, Rule 3 of the Rules of
Court, it is even the duty of the court, if the legal representative fails to appear, to
order the opposing party to procure the appointment of a legal representative of the
deceased. In the instant case the respondent Court did not have to bother ordering
the opposing party to procure the appointment of a legal representative of the
deceased because her counsel has not only asked that the minor children be
substituted for her but also suggested that their uncle be appointed as guardian ad
litem for them because their father is busy in Manila earning a living for the family.
But the respondent Court refused the request for substitution on the ground that the
children were still minors and cannot sue in court. This is another grave error
because the respondent Court ought to have known that under the same Section
17, Rule 3 of the Rules of Court, the court is directed to appoint a guardian ad
litem for the minor heirs. Precisely in the instant case, the counsel for the deceased
plaintiff has suggested to the respondent Court that the uncle of the minors be
appointed to act as guardian ad litem for them. Unquestionably, the respondent
Court has gravely abused its discretion in not complying with the clear provision of
the Rules of Court in dismissing the complaint of the plaintiff in Civil Case No. 856
and refusing the substitution of parties in the case.
IN VIEW OF THE FOREGOING, the order of the respondent Court dismissing the
complaint in Civil Case No. 856 of the Court of First Instance of Abra and the
motions for reconsideration of the order of dismissal of said complaint are set aside
and the respondent Court is hereby directed to allow the substitution of the minor
children, who are the petitioners therein for the deceased plaintiff and to appoint a
qualified person as guardian ad litem for them. Without pronouncement as to costs.
SO ORDERED.
Teehankee (Chairman), Makasiar, Esguerra and Muoz Palma, JJ., concur.
Footnotes

1 Which this Court treats as special civil action as per its Resolution
dated February 11, 1976.
2 Section 16. Duty of Attorney upon which death, incapacity or
incompetency of party. - Whenever a party to a pending case dies,
becomes incapacitated or incompetent, it shall be the duty of his
attorney to inform the court promptly of such death, incapacity or
incompetency, and to give the name and residence of his executor,
administrator, guardian or other legal representative.
Section 17. Death of party.After a party dies and the claim is not
thereby extinguished, the court shall order, upon proper notice, the
legal representative of the deceased to appear and to be substituted
for deceased, within a period of thirty (30) days, or within such time as
may be granted. If the legal representative fails to appear within said
time, the court may order the opposing party to procure the
appointment of a legal representative of the within a time to be
specified by the court, and the representative shall immediately
appear for and on behalf of the interest of the deceased. The court
charges involved in procuring such appointment, if defrayed by the
opposing party, may be recovered as costs. The heirs of the deceased
may be allowed to be substituted for the deceased, without requiring
the appointment of an executor or administrator and the court may
appoint guardianad litem for the minor heirs.
3 Buan vs. Heirs of Buan, 53 Phil. 654.
4 Ibarle vs. Po, 92 Phil. 721.
5 Morales, et al. vs. Ybanez, 98 Phil. 677.
6 Iron Gate Bank vs. Brady, 184 U.S. 665, 22 SCT 529, 46 L. ed. 739.
7 Wenber vs. St. Paul City Co., 97 Feb. 140 R. 39 C.C.A. 79.
G.R. No. 75884 September 24, 1987
JULITA GO ONG, FOR HERSELF AND AS JUDICIAL GUARDIAN OF STEVEN GO
ONG, petitioners,
vs.
THE HON. COURT OF APPEALS, ALLIED BANKING CORPORATION and the
CITY SHERIFF OF QUEZON CITY,respondents.

PARAS, J.:

This is a petition for review on certiorari of the March 21, 1986 Decision * of the
Court of Appeals in AC-G.R. CV No. 02635, "Julita Ong etc. vs. Allied Banking Corp.
et al." affirming, with modification, the January 5, 1984 Decision of the Regional Trial
Court of Quezon City in Civil Case No. Q-35230.
The uncontroverted facts of this case, as found by the Court of Appeals, are as
follows:
...: Two (2) parcels of land in Quezon City Identified as Lot No. 12, Block
407, Psd 37326 with an area of 1960.6 sq. m. and Lot No. 1, Psd
15021, with an area of 3,660.8 sq. m. are covered by Transfer
Certificate of Title No. 188705 in the name of "Alfredo Ong Bio Hong
married to Julita Go Ong "(Exh. D). Alfredo Ong Bio Hong died on
January 18, 1975 and Julita Go Ong was appointed administratrix of her
husband's estate in Civil Case No. 107089. The letters of
administration was registered on TCT No. 188705 on October 23, 1979.
Thereafter, Julita Go Ong sold Lot No. 12 to Lim Che Boon, and TCT No.
188705 was partially cancelled and TCT No. 262852 was issued in favor
of Lim Che Boon covering Lot No. 12 (Exh. D-4). On June 8, 1981 Julita
Go Ong through her attorney-in-fact Jovita K. Yeo (Exh. 1) mortgaged
Lot No. 1 to the Allied Banking Corporation to secure a loan of
P900,000.00 obtained by JK Exports, Inc. The mortgage was registered
on TCT No. 188705 on the same date with the following notation: "...
mortgagee's consent necessary in case of subsequent alienation or
encumbrance of the property other conditions set forth in Doc. No.
340, Page No. 69, Book No. XIX, of the Not. Public of Felixberto Abad".
On the loan there was due the sum of P828,000.00 and Allied Banking
Corporation tried to collect it from Julita Go Ong, (Exh. E). Hence, the
complaint alleging nullity of the contract for lack of judicial approval
which the bank had allegedly promised to secure from the court. In
response thereto, the bank averred that it was plaintiff Julita Go Ong
who promised to secure the court's approval, adding that Julita Go Ong
informed the defendant that she was processed the sum of
P300,000.00 by the JK Exports, Inc. which will also take charge of the
interest of the loan.
Concluding, the trial court ruled:
Absent (of) any evidence that the property in question is
the capital of the deceased husband brought into the
marriage, said property should be presumed as acquired
during the marriage and, therefore, conjugal property,
After the dissolution of the marriage with the death of
plaintiff's husband, the plaintiff acquired, by law, her
conjugal share, together with the hereditary rights
thereon. (Margate vs. Rabacal, L-14302, April 30, 1963).

Consequently, the mortgage constituted on said property,

upon express authority of plaintiff, notwithstanding the
lack of judicial approval, is valid, with respect to her
conjugal share thereon, together with her hereditary
rights.
On appeal by petitioner, respondent Court of Appeals affirmed, with modification,
the appealed decision (Record, pp. 19-22). The dispositive portion of the appellate
court's decision reads:
WHEREFORE, with the modification that the extrajudicial foreclosure
proceedings instituted by defendant against plaintiff shall be held in
abeyance to await the final result of Civil Case No. 107089 of the Court
of First Instance of Manila, 6th Judicial District Branch XXXII, entitled
"IN THE MATTER OF THE INTESTATE ESTATE OF THE LATE ALFREDO
ONG BIO: JULITA GO ONG, ADMINISTRATRIX". In pursuance with which
the restraining order of the lower court in this case restraining the sale
of the properties levied upon is hereby ordered to continue in full force
and effect coterminous with the final result of Civil Case No. 107089,
the decision appealed from is hereby affirmed. Costs against plaintiffappellant.
SO ORDERED.
On April 8, 1986, petitioner moved for the reconsideration of the said decision (Ibid.,
pp. 24-29), but in a Resolution dated September 11, 1986, respondent court denied
the motion for lack of merit (Ibid., p. 23). Hence, the instant petition (Ibid., pp. 617).
The Second Division of this Court, in a Resolution dated November 19, 1986 (Rollo,
p. 30), without giving due course to the petition, resolved to require private
respondent to comment thereon and it did on February 19, 1987 (Ibid., pp. 37-42).
Thereafter, in a Resolution dated April 6, 1987, the petition was given due course
and the parties were required to file their respective memoranda (Ibid., p. 43).
Petitioner filed her Memorandum on May 13, 1987 (Ibid., pp. 45-56), while private
respondent filed its Memorandum on May 20, 1987 (Ibid., pp. 62-68).
The sole issue in this case is
WHETHER OR NOT THE MORTGAGE CONSTITUTED OVER THE PARCEL OF LAND
UNDER PETITIONER'S ADMINISTRATION IS NULL AND VOID FOR WANT OF JUDICIAL
APPROVAL.
The instant petition is devoid of merit.

The well-settled rule that the findings of fact of the trial court are entitled to great
respect, carries even more weight when affirmed by the Court of Appeals as in the
case at bar.
In brief, the lower court found: (1) that the property under the administration of
petitioner the wife of the deceased, is a community property and not the
separate property of the latter; (2) that the mortgage was constituted in the wife's
personal capacity and not in her capacity as administratrix; and (3) that the
mortgage affects the wife's share in the community property and her inheritance in
the estate of her husband.
Petitioner, asserting that the mortgage is void for want of judicial approval, quoted
Section 7 of Rule 89 of the Rules of Court and cited several cases wherein this Court
ruled that the regulations provided in the said section are mandatory.
While petitioner's assertion may have merit insofar as the rest of the estate of her
husband is concerned the same is not true as regards her conjugal share and her
hereditary rights in the estate. The records show that petitioner willingly and
voluntarily mortgaged the property in question because she was processed by JK
Exports, Inc. the sum of P300,000.00 from the proceeds of the loan; and that at the
time she executed the real estate mortgage, there was no court order authorizing
the mortgage, so she took it upon herself, to secure an order.
Thus, in confirming the findings of the lower court, as supported by law and the
evidence, the Court of Appeals aptly ruled that Section 7 of Rule 89 of the Rules of
Court is not applicable, since the mortgage was constituted in her personal capacity
and not in her capacity as administratrix of the estate of her husband.
Nevertheless, petitioner, citing the cases of Picardal, et al. vs. Lladas (21 SCRA
1483) and Fernandez, et al. vs. Maravilla (10 SCRA 589), further argues that in the
settlement proceedings of the estate of the deceased spouse, the entire conjugal
partnership property of the marriage is under administration. While such may be in
a sense true, that fact alone is not sufficient to invalidate the whole mortgage,
willingly and voluntarily entered into by the petitioner. An opposite view would
result in an injustice. Under similar circumstances, this Court applied the provisions
of Article 493 of the Civil Code, where the heirs as co-owners shall each have the
full ownership of his part and the fruits and benefits pertaining thereto, and he may
therefore alienate, assign or mortgage it, and even effect of the alienation or
mortgage, with respect to the co-owners, shall be limited to the portion which may
be allotted to him in the division upon the termination of the co-ownership
(Philippine National Bank vs. Court of Appeals, 98 SCRA 207 [1980]).
Consequently, in the case at bar, the trial court and the Court of Appeals cannot be
faulted in ruling that the questioned mortgage constituted on the property under
administration, by authority of the petitioner, is valid, notwithstanding the lack of
judicial approval, with respect to her conjugal share and to her hereditary rights.
The fact that what had been mortgaged was in custodia legis is immaterial, insofar

as her conjugal share and hereditary share in the property is concerned for after all,
she was the ABSOLUTE OWNER thereof. This ownership by hers is not disputed, nor
is there any claim that the rights of the government (with reference to taxes) nor
the rights of any heir or anybody else have been prejudiced for impaired. As stated
by Associate Justice (later Chief Justice) Manuel Moran in Jakosalem vs. Rafols, et
al., 73 Phil. 618
The land in question, described in the appealed decision, originally
belonged to Juan Melgar. The latter died and the judicial administration
of his estate was commenced in 1915 and came to a close on
December 2, 1924, only. During the pendency of the said
administration, that is, on July 5, 1917, Susana Melgar, daughter of the
deceased Juan Melgar, sold the land with the right of repurchase to
Pedro Cui, subject to the stipulation that during the period for the
repurchase she would continue in possession of the land as lessee of
the purchase. On December 12, 1920, the partition of the estate left by
the deceased Juan Melgar was made, and the land in question was
adjudicated to Susana Melgar. In 1921, she conveyed, in payment of
professional fees, one-half of the land in favor of the defendantappellee Nicolas Rafols, who entered upon the portion thus conveyed
and has been in possession thereof up to the present. On July 23, 1921,
Pedro Cui brought an action to recover said half of the land from
Nicolas Rafols and the other half from the other defendants, and while
that case was pending, or about August 4, 1925, Pedro Cui donated the
whole land in question to Generosa Teves, the herein plaintiffappellant, after trial, the lower court rendered a decision absolving
Nicolas Rafols as to the one-half of the land conveyed to him by
Susana Melgar, and declaring the plaintiff owner of the other half by
express acknowledgment of the other defendants. The plaintiff
appealed from that part of the judgment which is favorable to Nicolas
Rafols.
The lower court absolved Nicolas Rafols upon the theory that Susana
Melgar could not have sold anything to Pedro Cui because the land was
then in custodia legis, that is, under judicial administration. This is
error. That the land could not ordinary be levied upon while in custodia
legis,does not mean that one of the heirs may not sell the right,
interest or participation which he has or might have in the lands under
administration. The ordinary execution of property in custodia legis is
prohibited in order to avoid interference with the possession by the
court. But the sale made by an heir of his share in an inheritance,
subject to the result of the pending administration, in no wise stands in
the way of such administration.
The reference to judicial approval in Sec. 7, Rule 89 of the Rules of Court cannot
adversely affect the substantiverights of private respondent to dispose of her Ideal
[not inchoate, for the conjugal partnership ended with her husband's death, and her

hereditary rights accrued from the moment of the death of the decedent (Art. 777,
Civil Code) share in the co-heirship and/or co-ownership formed between her and
the other heirs/co-owners (See Art. 493, Civil Code, supra.). Sec. 7, Art. 89 of the
Civil Code applies in a case where judicial approval has to be sought in connection
with, for instance, the sale or mortgage of property under administration for the
payment, say of a conjugal debt, and even here, the conjugal and hereditary shares
of the wife are excluded from the requisite judicial approval for the reason already
adverted to hereinabove, provided of course no prejudice is caused others,
including the government.
Moreover, petitioner is already estopped from questioning the mortgage. An
estoppel may arise from the making of a promise even though without
consideration, if it was intended that the promise should be relied upon and in fact it
was relied upon, and if a refusal to enforce it would be virtually to sanction the
perpetration of fraud or would result in other injustice (Gonzalo Sy Trading vs.
Central Bank, 70 SCRA 570).
PREMISES CONSIDERED, the instant petition is hereby DENIED and the assailed
decision of the Court of Appeals is hereby AFFIRMED.
SO ORDERED.

G.R. No. L-15499

February 28, 1962

ANGELA
M.
vs.
MANUEL UY and SONS, INC., defendant-appellee.

BUTTE, plaintiff-appellant,

Delgado,
Flores
and
Macapagal
Pelaez and Jalandoni for defendant-appellee.

for

plaintiff-appellant.

REYES, J.B.L., J.:

Appeal from a decision of the Court of First instance of Manila dismissing the action
for legal redemption filed by plaintiff-appellant.
It appears that Jose V. Ramirez, during his lifetime, was a co-owner of a house and
lot located at Sta. Cruz, Manila, as shown by Transfer Certificate of Title No. 52789,
issued in the name of the following co-owners: Marie Garnier Vda. de Ramirez, 1/6;
Jose V. Ramirez, 1/6; Jose E. Ramirez, 1/6; Rita de Ramirez, 1/6; and Jose Ma.
Ramirez, 1/6.
On October 20, 1951, Jose V. Ramiqrez died. Subsequently, Special Proceeding No.
15026 was instituted to settle his estate, that included the one-sixth (1/6) undivided

share in the aforementioned property. And although his last will and testament,
wherein he bequeathed his estate to his children and grandchildren and one-third
(1/3) of the free portion to Mrs. Angela M. Butte, hereinafter referred to as plaintiffappellant, has been admitted to probate, the estate proceedings are still pending up
to the present on account of the claims of creditors which exceed the assets of the
deceased. The Bank of the Philippine Islands was appointed judicial administrator.
Meanwhile, on December 9, 1958, Mrs. Marie Garnier Vda. de Ramirez, one of the
co-owners of the late Jose V. Ramirez in the Sta. Cruz property, sold her undivided
1/6 share to Manuel Uy & Sons, Inc. defendant-appellant herein, for the sum of
P500,000.00. After the execution by her attorney-in-fact, Mrs. Elsa R. Chambers, of
an affidavit to the effect that formal notices of the sale had been sent to all possible
redemptioners, the deed of sale was duly registered and Transfer Certificate of Title
No. 52789 was cancelled in lieu of which a new one was issued in the name of the
vendee and the other-co-owners.
On the same day (December 9, 1958), Manuel Uy & Sons, Inc. sent a letter to the
Bank of the Philippine Islands as judicial administrator of the estate of the late Jose
V. Ramirez informing it of the above-mentioned sale. This letter, together with that
of the bank, was forwarded by the latter to Mrs. Butte c/o her counsel Delgado,
Flores & Macapagal, Escolta, Manila, and having received the same on December
10, 1958, said law office delivered them to plaintiff-appellant's son, Mr. Miguel Papa,
who in turn personally handed the letters to his mother, Mrs. Butte, on December
11 and 12, 1958. Aside from this letter of defendant-appellant, the vendor, thru her
attorney-in-fact Mrs. Chambers, wrote said bank on December 11, 1958 confirming
vendee's letter regarding the sale of her 1/6 share in the Sta. Cruz property for the
sum of P500,000.00. Said letter was received by the bank on December 15, 1958
and having endorsed it to Mrs. Butte's counsel, the latter received the same on
December 16, 1958. Appellant received the letter on December 19, 1958.
On January 15, 1959, Mrs. Angela M. Butte, thru Atty. Resplandor Sobretodo, sent a
letter and a Philippine National Bank cashier's check in the amount of P500,000.00
to Manuel Uy & Sons, Inc. offering to redeem the 1/6 share sold by Mrs. Marie
Garnier Vda. de Ramirez. This tender having been refused, plaintiff on the same day
consigned the amount in court and filed the corresponding action for legal
redemption. Without prejudice to the determination by the court of the reasonable
and fair market value of the property sold which she alleged to be grossly excessive,
plaintiff prayed for conveyance of the property, and for actual, moral and exemplary
damages.
After the filing by defendant of its answer containing a counterclaim, and plaintiff's
reply thereto, trial was held, after which the court rendered decision on May 13,
1959, dismissing plaintiff's complaint on the grounds that she has no right to
redeem the property and that, if ever she had any, she exercised the same beyond
the statutory 30-day period for legal redemptions provided by the Civil Code. The
counterclaim of defendant for damages was likewise dismissed for not being
sufficiently established. Both parties appealed directly to this Court.

Based on the foregoing facts, the main issues posed in this appeal are: (1) whether
or not plaintiff-appellant, having been bequeathed 1/3 of the free portion of the
estate of Jose V. Ramirez, can exercise the right of legal redemption over the 1/6
share sold by Mrs. Marie Garnier Vda. de Ramirez despite the presence of the
judicial administrator and pending the final distribution of her share in the testate
proceedings; and (2) whether or not she exercised the right of legal redemption
within the period prescribed by law.
The applicable law involved in the present case is contained in Articles 1620, p. 1,
and 1623 of the Civil Code of the Philippines, which read as follows:
ART. 1620. A co-owner of a thing may exercise the right of redemption in case
the shares of all the other-co-owners or of any of them, are sold to a third
person. If the price of the alienation is grossly excessive, the redemptioner
shall pay only a reasonable one.
Should two or more co-owners desire to exercise the right of redemption,
they may only do so in proportion to the share they may respectively have in
the thing owned in common. (1522a)
ART. 1623. The right of legal predemption or redemption shall not be
exercised except within thirty days from the notice in writing by the
respective vendor, or by the vendor, as the case may be. The deed of sale
shall not be accorded in the Registry of Property, unless accompanied by an
affidavit of the vendor that he has given written notice thereof at all possible
redemptioners.
The right of redemption of co-owners excludes that of adjoining owners.
(1524a)
That the appellant Angela M. Butte is entitled to exercise the right of legal
redemption is clear. As testamentary heir of the estate of J.V. Ramirez, she and her
co-heirs acquired an interest in the undivided one-sixth (1/6) share owned by her
predecessor (causante) in the Santa Cruz property, from the moment of the death
of the aforesaid co-owner, J.V. Ramirez. By law, the rights to the succession of a
deceased persons are transmitted to his heirs from the moment of his death, and
the right of succession includes all property rights and obligations that survive the
decedent.
ART. 776. The inheritance includes all the property, rights and obligations of a
person which are not extinguished by his death. (659)
ART. 777. The rights to the succession are transmitted from the moment of
the death of the decedent. (657a)

ART. 947. The legatee or devisee acquires a right to the pure and simple
legacies or devisees from the death of the testator, and transmits it to his
heirs. (881a)
The principle of transmission as of the time of the predecessor's death is basic in
our Civil Code, and is supported by other related articles. Thus, the capacity of the
heir is determined as of the time the decedent died (Art. 1034); the legitime is to be
computed as of the same moment(Art. 908), and so is the in officiousness of the
donation inter vivos (Art. 771). Similarly, the legacies of credit and remission are
valid only in the amount due and outstanding at the death of the testator (Art.
935),and the fruits accruing after that instant are deemed to pertain to the legatee
(Art. 948).
As a consequence of this fundamental rule of succession, the heirs of Jose V.
Ramirez acquired his undivided share in the Sta. Cruz property from the moment of
his death, and from that instant, they became co-owners in the aforesaid property,
together with the original surviving co-owners of their decedent (causante). A coowner of an undivided share is necessarily a co-owner of the whole. Wherefore, any
one of the Ramirez heirs, as such co-owner, became entitled to exercise the right of
legal redemption (retracto de comuneros) as soon as another co-owner (Maria
Garnier Vda. de Ramirez) had sold her undivided share to a stranger, Manuel Uy &
Sons, Inc. This right of redemption vested exclusively in consideration of the
redemptioner's share which the law nowhere takes into account.
The situation is in no wise altered by the existence of a judicial administrator of the
estate of Jose V. Ramirez while under the Rules of Court the administrator has the
right to the possession of the real and personal estate of the deceased, so far as
needed for the payment of the decedent's debts and the expenses of administration
(sec. 3, Rule 85), and the administrator may bring or defend actions for the recovery
or protection of the property or rights of the deceased (sec. 2, Rule 88), such rights
of possession and administration do not include the right of legal redemption of the
undivided share sold to Uy & Company by Mrs. Garnier Ramirez. The reason is
obvious: this right of legal redemption only came into existence when the sale to Uy
& Sons, Inc. was perfected, eight (8) years after the death of Jose V. Ramirez, and
formed no part of his estate. The redemption right vested in the heirs originally, in
their individual capacity, they did not derivatively acquire it from their decedent, for
when Jose V. Ramirez died, none of the other co-owners of the Sta. Cruz property
had as yet sold his undivided share to a stranger. Hence, there was nothing to
redeem and no right of redemption; and if the late Ramirez had no such right at his
death, he could not transmit it to his own heirs. Much less could Ramirez acquire
such right of redemption eight years after his death, when the sale to Uy & Sons,
Inc. was made; because death extinguishes civil personality, and, therefore, all
further juridical capacity to acquire or transmit rights and obligations of any kind
(Civil Code of the Phil., Art. 42).
It is argued that the actual share of appellant Mrs. Butte in the estate of Jose V.
Ramirez has not been specifically determined as yet, that it is still contingent; and

that the liquidation of estate of Jose V. Ramirez may require the alienation of the
decedent's undivided portion in the Sta. Cruz property, in which event Mrs. Butte
would have no interest in said undivided portion. Even if it were true, the fact would
remain that so long as that undivided share remains in the estate, the heirs of Jose
V. Ramirez own it, as the deceased did own it before his demise, so that his heirs are
now as much co-owners of the Sta. Cruz property as Jose V. Ramirez was himself a
co-owner thereof during his lifetime. As co-owners of the property, the heirs of Jose
V. Ramirez, or any one of them, became personally vested with right of legal
redemption as soon as Mrs. Garnier sold her own pro-indiviso interest to Uy & Sons.
Even if subsequently, the undivided share of Ramirez (and of his heirs) should
eventually be sold to satisfy the creditors of the estate, it would not destroy their
ownership of it before the sale, but would only convey or transfer it as in turn sold
(of it actually is sold) to pay his creditors. Hence, the right of any of the Ramirez
heirs to redeem the Garnier share will not be retroactively affected. All that the law
requires is that the legal redemptioner should be a co-owner at the time the
undivided share of another co-owner is sold to a stranger. Whether or not the
redemptioner will continue being a co-owner after exercising the legal redemptioner
is irrelevant for the purposes of law.
Nor it can be argued that if the original share of Ramirez is sold by the
administrator, his heirs would stand in law as never having acquired that share. This
would only be true if the inheritance is repudiated or the heir's quality as such is
voided. But where the heirship is undisputed, the purchaser of hereditary property is
not deemed to have acquired the title directly from the deceased Ramirez, because
a dead man can not convey title, nor from the administrator who owns no part of
the estate; the purchaser can only derive his title from the Ramirez heirs,
represented by the administrator, as their trustee or legal representative.
The right of appellant Angela M. Butte to make the redemption being established,
the next point of inquiry is whether she had made or tendered the redemption price
within the 30 days from notices as prescribed by law. This period, be it noted, is
peremptory, because the policy of the law is not to leave the purchaser's title in
uncertainty beyond the established 30-day period. In considering whether or not the
offer to redeem was timely, we think that the notice given by the vendee (buyer)
should not be taken into account. The text of Article 1623 clearly and expressly
prescribes that the thirty days for making the redemption are to be counted from
notice in writing by the vendor. Under the old law (Civ. Code of 1889, Art. 1524), it
was immaterial who gave the notice; so long as the redeeming co-owner learned of
the alienation in favor of the stranger, the redemption period began to run. It is thus
apparent that the Philippine legislature in Article 1623 deliberately selected a
particular method of giving notice, and that method must be deemed exclusive (39
Am. Jur., 237; Payne vs. State, 12 S.W. [2d] 528). As ruled in Wampler vs. Lecompte,
150 Atl. 458 (affd. in 75 Law Ed. [U.S.] 275)
Why these provisions were inserted in the statute we are not informed, but
we may assume until the contrary is shown, that a state of facts in respect
thereto existed, which warranted the legislature in so legislating.

The reasons for requiring that the notice should be given by the seller, and not by
the buyer, are easily divined. The seller of an undivided interest is in the best
position to know who are his co-owners that under the law must be notified of the
sale. Also, the notice by the seller removes all doubts as to the fact of the sale, its
perfection; and its validity, the notice being a reaffirmation thereof, so that the
party need not entertain doubt that the seller may still contest the alienation. This
assurance would not exist if the notice should be given by the buyer.
The notice which became operative is that given by Mrs. Chambers, in her capacity
as attorney-in-fact of the vendor Marie Garnier Vda. de Ramirez. Under date of
December 11, 1958, she wrote the Administrator Bank of the Philippine Islands that
her principal's one-sixth (1/6) share in the Sta. Cruz property had been sold to
Manuel Uy & Sons, Inc. for P500,000.00. The Bank received this notice on December
15, 1958, and on the same day endorsed it to Mrs. Butte, care of Delgado, Flores
and Macapagal (her attorneys), who received the same on December 16, 1958. Mrs.
Butte tendered redemption and upon the vendee's refusal, judicially consigned the
price of P500,000.00 on January 15, 1959. The latter date was the last one of the
thirty days allowed by the Code for the redemption, counted by excluding
December 16, 1958 and including January 15, 1959, pursuant to Article 13 of the
Civil Code. Therefore, the redemption was made in due time.
The date of receipt of the vendor's notice by the Administrator Bank (December 15)
can not be counted as determining the start of thirty days; for the Administrator of
the estate was not a proper redemptioner, since, as previously shown, the right to
redeem the share of Marie Garnier did not form part of the estate of Jose V. Ramirez.
We find no jurisdiction for appellant's claim that the P500,000,00. paid by Uy &
Sons, Inc. for the Garnier share is grossly excessive. Gross excess cannot be
predicated on mere individual estimates of market price by a single realtor.
The redemption and consignation having been properly made, the Uy counterclaim
for damages and attorney's fees predicated on the assumption that plaintiff's action
was clearly unfounded, becomes untenable.
PREMISES CONSIDERED, the judgment appealed from is hereby reversed and set
aside, and another one entered:
(a) Declaring the consignation of P500,000,00 made by appellant Angela M.
Butte duly and properly made;
(b) Declaring that said appellant properly exercised in due time the legal
redemption of the one-sixth (1/6) undivided portion of the land covered by
Certificate of Title No. 59363 of the Office of the Register of Deeds of the City
of Manila, sold on December 9, 1958 by Marie Garnier Vda. de Ramirez to
appellant Manuel Uy & Sons, Inc.

(c) Ordering appellant Manuel Uy & Sons, Inc. to accept the consigned price
and to convey to Angela M. Butte the undivided portion above referred to,
within 30 days from the time our decision becomes final, and subsequently to
account for the rentals and fruits of the redeemed share from and after
January 15, 1958, until its conveyance; and.
(d) Ordering the return of the records to the court of origin for further
proceedings conformable to this opinion.
Without finding as to costs.

G.R. No. L-24434

January 17, 1968

HEIRS OF PEDRO REGANON, JOVENCIA REGANON, MENCIA REGANON,

JOSEFA REGANON, VIOLETA REGANON, and FLORA REGANON, plaintiffsappellees,
vs.
RUFINO IMPERIAL, defendant-appellant.
Torcuato
L.
Galon
V. Lacaya for defendant-appellant.

for

plaintiffs-appellees.

BENGZON, J.P., J.:

This is an appeal from the orders dated June 9, 1964, July 14, 1964 and August 11,
1964, respectively, of the Court of First Instance of Zamboanga del Norte (Dipolog,
Branch II).
The facts of the case are admitted by both parties.
On February 22, 1963, the heirs of Pedro Reganon filed a complaint for recovery of
ownership and possession of about one-hectare portion of a parcel of land (Lot No. 1
or Lot No. 4952, situated at Miasi, Polanco, Zamboanga del Norte, covered by O.T.C.
No. 1447, with an area of 7.9954 hectares), with damages, against Rufino Imperial.
Defendant not having filed an answer within the reglementary period, the plaintiffs
on April 8, 1963 filed a motion to declare the former in default. The trial court
granted the motion in its order dated April 10, 1963.
On April 23, 1963, the plaintiffs presented their evidence ex parte before the Clerk
of Court acting as Commissioner. The court a quo on May 6, 1963, rendered a
decision declaring the plaintiffs lawful owners of the land in question and entitled to
its peaceful possession and enjoyment; ordering defendant immediately to vacate
the portion occupied by him and to restore the peaceful possession thereof to

plaintiffs; and sentencing defendant to pay plaintiffs the amount of P1,929.20 and
the costs.
On November 29, 1963, the plaintiffs filed a motion for issuance of a writ of
execution. This was granted by the trial court in its order of December 9, 1963.
The Deputy Provincial Sheriff submitted on February 8, 1964 a sheriff's return of
proceedings reporting the garnishment and sale of a carabao and goat belonging to
defendant for P153.00, and the attachment and sale of defendant's parcel of land
covered by Tax Declaration No. 4694, situated in Sicet, Polanco, Zamboanga del
Norte, for P500.00 both sales having been made to the only bidder, plaintiffs'
counsel Atty. Vic T. Lacaya.
On March 13, 1964, the Philippine National Bank deposited in the Philippine National
Bank-Dipolog Branch the residuary estate of its former ward, Eulogio Imperial, in the
sum of P10,303.80, pursuant to an order of Branch I of the Court of First Instance of
Zamboanga del Norte in Sp. Proc. No. R-145.
On May 25, 1964, the heirs of said Eulogio Imperial, one of whom is defendant,
executed a Deed of Extrajudicial Partition of the residuary estate, wherein was
apportioned P1,471.97 as defendant Rufino Imperial's share.
Informed of this development, the plaintiffs filed on June 5, 1964 an ex parte motion
for issuance of an alias writ of execution and of an order directing the manager, or
the representative, of the Philippine National Bank-Dipolog Branch, to hold the share
of defendant and deliver the same to the provincial sheriff of the province to be
applied to the satisfaction of the balance of the money judgment. This was granted
by the trial court (Branch II) in its order dated June 9, 1964.
On June 17, 1964, the Deputy Provincial Sheriff issued a sheriffs notification for levy
addressed to defendant, giving notice of the garnishment of the rights, interests,
shares and participation that defendant may have over the residuary estate of the
late Eulogio Imperial, consisting of the money deposited in the Philippine National
Bank-Dipolog Branch.
Defendant, through counsel, appearing for the first time before the trial court, on
June 24, 1964 filed a motion for reconsideration of the order dated June 9, 1964,
and to quash the alias writ of execution issued pursuant to it, to which plaintiffs filed
their opposition on July 6, 1964. On July 14, 1964, the trial court denied defendant's
aforesaid motion.
Defendant's second motion for reconsideration likewise having denied by the trial
court in its order of August 11, 1964, defendant appealed to Us, raising the
following issues:

(1) Upon the death of a ward, is the money accumulated in his guardianship
proceedings and deposited in a bank, still considered in custodia legis and
therefore cannot be attached?
(2) Is the residuary estate of a U.S. veteran, which consists in the aggregate
accumulated sum from the monthly allowances given him by the United
States Veterans Administration (USVA) during his lifetime, exempt from
execution?
Defendant-appellant argues that the property of an incompetent under guardianship
is in custodia legis and therefore can not be attached.
It is true that in a former case 1 it was held that property under custodia legis can
not be attached. But this was under the old Rules of Court. The new Rules of
Court 2 now specifically provides for the procedure to be followed in case what is
attached is in custodia legis. 3 The clear import of this new provision is that property
under custodia legis is now attachable, subject to the mode set forth in said rule.
Besides, the ward having died, the guardianship proceedings no longer subsist:
The death of the ward necessarily terminates the guardianship, and
thereupon all powers and duties of the guardian cease, except the duty,
which remains, to make a proper accounting and settlement in the probate
court. 4
As a matter of fact, the guardianship proceedings was ordered conditionally closed
by Branch I of the Court of First Instance of Zamboanga del Norte in which it was
pending, in its order of February 8, 1964, where it stated
In the meantime, the guardian Philippine National Bank is hereby directed to
deposit the residuary estate of said ward with its bank agency in Dipolog, this
province, in the name of the estate of the deceased ward Eulogio Imperial,
preparatory to the eventual distribution of the same to the heirs when the
latter shall be known, and upon proof of deposit of said residuary estate, the
guardian Philippine National Bank shall forthwith be relieved from any
responsibility as such, and this proceeding shall be considered closed and
terminated. 5
And the condition has long been fulfilled, because on March 13, 1964 the Philippine
National Bank-Manila deposited the residuary estate of the ward with the Philippine
National Bank-Dipolog Branch, evidenced by a receipt attached to the records in Sp.
Proc. No. R-145. 6
When Eulogio Imperial died on September 13, 1962, the rights to his succession
from the moment of his death were transmitted to his heirs, one of whom is his
son and heir, defendant-appellant herein. 7 This automatic transmission can not but

proceed with greater ease and certainty than in this case where the parties agree
that the residuary estate is not burdened with any debt. For,
The rights to the succession of a person are transmitted from the moment of
death, and where, as in this case, the heir is of legal age and the estate is not
burdened with any debts, said heir immediately succeeds, by force of law, to
the dominion, ownership, and possession of the properties of his predecessor
and consequently stands legally in the shoes of the latter. 8
That the interest of an heir in the estate of a deceased person may be attached for
purposes of execution, even if the estate is in the process of settlement before the
courts, is already a settled matter in this jurisdiction. 9
It is admitted that the heirs of Eulogio Imperial, including herein defendantappellant, have on May 25, 1964 executed a Deed of Extrajudicial Partition. This
instrument suffices to settle the entire estate of the decedent provided all the
requisites for its validity are fulfilled 10 even without the approval of the court.
Therefore, the estate for all practical purposes have been settled. The heirs are at
full liberty to withdraw the residuary estate from the Philippine National BankDipolog Branch and divide it among themselves. The only reason they have not
done so is because of the alleged illegal withdrawal from said estate of the amount
of P1,080.00 by one Gloria Gomez by authority of Branch I of the Court of First
Instance of Zamboanga del Norte, which incident is now on appeal before the Court
of Appeals. This appeal, however, does not detract any from the fact that the
guardianship proceedings is closed and terminated and the residuary estate no
longer under custodia legis.
Finally, it is defendant-appellant's position that the residuary estate of Eulogio
Imperial, a former U.S. veteran, having been set aside from the monthly allowances
given him by the United States Veterans Administration (USVA) during his lifetime, is
exempt from execution.
Any pension, annuity, or gratuity granted by a Government to its officers or
employees in recognition of past services rendered, is primordially aimed at tiding
them over during their old age and/or disability. This is therefore a
right personalissima, purely personal because founded on necessity. It requires no
argument to show that where the recipient dies, the necessity motivating or
underlying its grant necessarily ceases to be. Even more so in this case where the
law 11 providing for the exemption is calculated to benefit U.S. veterans residing
here, and is therefore merely a manifestation of comity.
Besides, as earlier stated, the heirs of Eulogio Imperial, one of whom is appellant,
have already executed a Deed of Extrajudicial Partition the end result of which is
that the property is no longer the property of the estate but of the individual heirs.
And it is settled that:

When the heirs by mutual agreement have divided the estate among
themselves, one of the heirs can not therefore secure the appointment of an
administrator to take charge of and administer the estate or a part
thereof. The property is no longer the property of the estate, but of the
individual heirs, whether it remains undivided or not. 12
WHEREFORE, the orders appealed from are hereby affirmed, with costs against
defendant-appellant. So ordered.1wph1.t
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles
and Fernando, JJ., concur.
Footnotes
G.R. No. L-25049

August 30, 1968

FILEMON RAMIREZ, MONICA RAMIREZ, and JOSE

appellants,
vs.
ARTEMIO BALTAZAR, ET AL., defendants-appellees.

EGUARAS, plaintiffs-

Eduardo
M.
Peralta
for
plaintiffs-appellants.
Tomas P. Anonuevo for defendants-appellees Artemio Baltazar and Susana Flores.
Tirso Caballero for defendant-appellee Artemio Diawan.
ANGELES, J.:
On appeal from an order dismissing the complaint, on motion to dismiss, in Civil
Case No. SC-319 of the Court of First Instance of Laguna.
It appears that on 6 January 1959, Victoriana Eguaras single, made and executed a
real estate mortgage over a parcel of land, owned by her in fee simple, as security
for a loan of P2,170.00 in favor of the spouses Artemio Baltazar and Susana Flores.
Upon the demise of the mortgagor, the mortgagees, as creditors of the deceased,
on 16 September 1960 filed a petition for the intestate proceedings of her estate, in
the Court of First Instance of Laguna, docketed as Civil Case No. SC-99 wherein said
mortgages, as petitioners, alleged that Filemon Ramirez and Monica Ramirez are the
heirs of the deceased. Filemon Ramirez was appointed administrator of the estate;
however, having failed to qualify, on 16 January 1961, the court appointed Artemio
Diawan, then a deputy clerk of court, administrator of the estate who, in due time,
qualified for the office.
On 19 April 1961, the mortgagees, Artemio Baltazar and Susana Flores, filed a
complaint for foreclosure of the aforesaid mortgage, against Artemio Diawan, in his
capacity as administrator of the estate, docketed as Civil Case No. SC-292 of the
Court of First Instance of Laguna. The defendant-administrator was duly served with

summons but he failed to answer, whereupon, on petition of the plaintiffs said

defendant was declared in default. The case was referred to a commissioner to
receive the evidence for the plaintiffs, and defendant-administrator, as deputy clerk
of court, acted as such hearing commissioner. 1wph1.t
On 16 August 1961, decision was rendered decreeing the foreclosure of the
mortgaged property and the sale thereof, if, within ninety days from finality of the
decision, the obligation was not fully paid. The judgment not having been satisfied,
a writ of execution was issued for the sale of the mortgaged property, and after
compliance with the requirements of the law regarding the sending, posting and
publication of the notice of sale, the Sheriff sold the property at public auction to
the highest bidder, who happened to be the plaintiffs themselves, for the sum of
P2,888.50 covering the amount of the judgment, plus the expenses of the sale and
the Sheriff's fees. On petition of the plaintiffs, the sale was confirmed by the court
on 26 January 1962.
On 6 February 1962, Filemon Ramirez, Monica Ramirez and Jose Eguaras, the first
two being the heirs named in the petition for intestate proceedings, filed a
complaint designated "For the Annulment of all Proceedings in said Civil Case No.
SC-292 for the Foreclosure of the Mortgage", against the spouses Artemio Baltazar
and Susana Flores, and Artemio Diawan, in his capacity as administrator of the
estate of Victoriana Eguaras, deceased, and Silverio Talabis, in his capacity as
deputy provincial sheriff of Laguna, docketed as Civil Case No. SC-319 of the Court
of First Instance of Laguna.
The facts hereinabove narrated are, succinctly, contained in the complaint in said
Civil Case No. SC-319, with the additional averments that the defendant Diawan, the
deputy clerk of court appointed as administrator of the intestate estate of the
deceased, acted in collusion with the other defendants Artemio Baltazar and Susana
Flores, deliberately and in fraud of the plaintiffs: (a) in allowing the reglementary
period within which to file an answer to lapse without notifying and/or informing the
said plaintiffs of the complaint for foreclosure, as a result of which he was declared
in default to the prejudice of the estate which he represents; (b) that had the
plaintiffs (Monica and Filemon) been notified of the pendency of the case, the
defendant administrator could have interposed a counterclaim because payment in
the sum of P1,548.52 had been made and received by the mortgagees on account
of the debt; (c) in presiding as hearing officer in the ex parte hearing in Civil Case
No. 292, to receive evidence for plaintiffs therein, notwithstanding the fact that
there was another deputy clerk of court available who could have acted in his stead,
as a result of which an anomalous situation was created whereby he was a
defendant and at the same time a commissioner receiving evidence against himself
as administrator; (d) in allowing judgment to become final without notifying the
plaintiffs; (e) in deliberately, allowing the 90-day period within which to make
payment to expire without notifying the heirs, as a result of which the said heirs
were not afforded an opportunity to make payments ordered by the Court in its
decision; and (f) in refusing to help the heirs seek postponement of the auction sale.
It is also alleged that it was only when the property foreclosed was published for

sale at public auction that the heirs came to know about the foreclosure
proceedings.
The defendants spouses, Artemio Baltazar and Susana Flores, filed a motion to
dismiss the complaint on the ground that the plaintiffs have no legal capacity to
sue; defendant Diawan likewise moved to dismiss on two grounds: that plaintiffs
have no legal capacity to sue and that the complaint states no cause of
action. 1wph1.t
Despite vigorous opposition interposed by the plaintiffs against the aforesaid
motions to dismiss, the court, on 13 March 1962, dismissed the complaint with costs
against the plaintiffs, reasoning thus: that "upon consideration of the evidence, said
defendant could not have offered any evidence to avoid the foreclosure of the
mortgage which the Court found to be in order. Under the circumstances and with
the apparent disinterestedness of Filemon and Rolando to qualify as administrator
when appointed, there could not have been any connivance and/or collusion
between plaintiffs in this case and Artemio Diawan as administrator"; and that
plaintiffs have no legal capacity to sue since their status as legal heirs of the
deceased has yet to be determined precisely in Special Proceeding No. SC-99, and
until such status is so fixed by the Court, they have no cause of action against
defendants.
In that order of 13 March 1962, the court also denied plaintiffs' petition for the
issuance of a writ of preliminary injunction to enjoin defendants from entering and
taking physical possession of the land in question on the ground "that possession
thereof was effected and delivered by the Provincial Sheriff to Artemio Baltazar and
Susana Flores on February, 1962."
Reconsideration of the aforesaid order having been denied, the plaintiffs took the
present appeal where they assigned the following errors: (1) in holding that
plaintiffs-appellants have no legal capacity to sue until their status as legal heirs of
the deceased is determined in Special Proceeding No. SC-99; (2) in ruling that there
was no collusion or connivance among the defendants-appellees, despite the fact
that the issue in the motion to dismiss is purely legal, not factual; and (3) in denying
the petition for a writ of preliminary injunction.
At the outset, let it be remembered that the defendants-appellees, in availing
themselves of the defense that the plaintiffs-appellants had not been declared to be
the heirs of the deceased Victoriana Eguaras, have overlooked the fact that the
(defendants-appellees) themselves in their petition for intestate proceedings (Case
SC-99) have alleged that Filemon Ramirez and Monica Ramirez, two of herein
plaintiffs-appellants, are the heirs of the deceased. Insofar as defendants-appellees
are concerned, it is our opinion that they are estopped from questioning the heirship
of these two named persons to the estate of the deceased.
There is no question that the rights to succession are automatically transmitted to
the heirs from the moment of the death of the decedent. 1 While, as a rule, the

formal declaration or recognition to such successional rights needs judicial

confirmation, this Court has, under special circumstances, protected these rights
from encroachments made or attempted before the judicial declaration. 2 In Pascual
vs. Pascual,3 it was ruled that although heirs have no legal standing in court upon
the commencement of testate or intestate proceedings, this rule admits of an
exception as "when the administrator fails or refuses to act in which event the heirs
may act in his place."
A similar situation obtains in the case at bar. The administrator is being charged to
have been in collusion and connivance with the mortgagees of a property of the
deceased, allowing its foreclosure without notifying the heirs, to the prejudice of the
latter. Since the ground for the present action to annul the aforesaid foreclosure
proceedings is the fraud resulting from such insidious machinations and collusion in
which the administrator has allegedly participated, it would be farfetched to expect
the said administrator himself to file the action in behalf of the estate. And who else
but the heirs, who have an interest to assert and to protect, would bring the action?
Inevitably, this case should fall under the exception, rather than the general rule
that pending proceedings for the settlement of the estate, the heirs have no right to
commence an action arising out of the rights belonging to the deceased.
On the second point raised, We fully agree with the plaintiffs-appellants that the
lower court had gone too far in practically adjudicating the case on the merits when
it made the observation that "there could not have been any connivance and/or
collusion between plaintiffs in this case and Artemio Diawan as administrator." A
thorough scrutiny of the allegations in the motions to dismiss filed by defendantsappellees does not indicate that that question was ever put at issue therein. On the
other hand, the controversy on the existence or inexistence of collusion between
the parties as a result of which judgment was rendered against the estate is the
very core of the complaint that was dismissed. Undoubtedly, the cause of action is
based on Section 30, Rule 132 of the Rules of Court.
We are not, however, in accord with the third assigned error the denial of the
motion for the issuance of preliminary injunction for it puts at issue the factual
finding made by the lower court that the defendants had already been placed in
possession of the property. At this stage of the proceeding, and considering the
nature of the case before Us, such a question is, at this time, beyond the
competence of the Court.
PREMISES CONSIDERED, the order appealed from is hereby set aside insofar as it
dismissed the complaint in Civil Case No. SC-319, and the records be remanded to
the lower court for further proceedings. Costs against defendants-appellees. The
Clerk of Court is directed to furnish a copy of this decision to the Department of
Justice for its information.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro and
Fernando, JJ., concur.

G.R. No. 119730 September 2, 1999

RODOLFO
NOCEDA, petitioner,
vs.
COURT OF APPEALS and AURORA ARBIZO DIRECTO, respondents.

GONZAGA-REYES, J.:
This petition for review on certiorari under Rule 45 of the Rules of Court seeks to
reverse the decision dated March 31, 1995 of the respondent Court of Appeals 1 in
CA GR CV No. 38126, affirming with modification the decision of the Regional Trial
Court, Branch 71, of Iba, Zambales, 2 in an action by private respondent against
petitioner for recovery of possession and ownership and rescission/annulment of
donation.
The facts of
follows: 3

the

case

as summarized

by the respondent Court are

as

On June 1, 1981, plaintiff Aurora Directo, defendant Rodolfo Noceda,

and Maria Arbizo, the daughter, grandson, and widow, respectively, of
the late Celestino Arbizo, who died in 1956, extrajudicially settled a
parcel of land, Lot 1121, located at Bitaog, San Isidro, Cabangan,
Zambales, which was said to have an area of 66,530 square meters.
Plaintiff Directo's share was 11,426 square meters, defendant Noceda
got 13,294 square meters, and the remaining 41,810 square meters
went to Maria Arbizo (Exhibit G). On the same date, plaintiff Directo
donated 625 square meters of her share to defendant Noceda, who is
her nephew being the son of her deceased sister, Carolina (Exhibit D).
However, on August 17, 1981, another extrajudicial settlementpartition of Lot 1121 was executed by plaintiff Directo, defendant
Noceda, and Maria Arbizo. Three fifths of the said land went to Maria
Arbizo while plaintiff Directo and defendant Noceda got only one-fifth
each. In said extrajudicial settlement-partition as well as in the Tax
Declaration 16-0032 over Lot 1121 in the name of the late Celestino
Arbizo, the said parcel of land was said to have an area of only 29,845
square meters (Exhibit C). Sometime in 1981, defendant Noceda
constructed his house on the land donated to him by plaintiff Directo.
Plaintiff Directo fenced the portion allotted to her in the extrajudicial
settlement, excluding the donated portion, and constructed thereon
three huts. But in 1985, defendant Noceda removed the fence earlier
constructed by plaintiff Directo, occupied the three huts (3) and fenced
the entire land of plaintiff Directo without her consent. Plaintiff Directo
demanded from defendant Noceda to vacate her land, but the latter
refused. Hence, plaintiff Directo filed the present suit, a complaint for
the recovery of possession and ownership and rescission/annulment of

donation, against defendant Noceda before the lower court. During the
trial, the lower court ordered that a relocation survey of Lot 1121 be
conducted by Engr. Edilberto Quejada of the Bureau of Lands. After the
survey of Lot 1121 in the presence of both parties, Engr. Edilberto
Quejada reported that the area of Lot 1121 stated in the extrajudicial
settlement-partition of August 17, 1981 was smaller than the actual
area of Lot 1121 which is 127,298 square meters. Engr. Quejada
subdivided Lot 1121, excluding the portions occupied by third persons,
known as Lot 8, the salvage zone and the road lot, on the basis of the
actual occupancy of Lot 1121 by the heirs of the late Celestino Arbizo
and the extrajudicial settlement-partition of August 17, 1981. The
portion denominated as Lot A, with an area of 12,957 square meters
was the share of defendant Noceda; Lot C, with the same area as that
of Lot A, was the share of plaintiff Directo, a portion of which was
donated to defendant Noceda; and Lot B, with an area of 38,872
square meters, went to Maria Arbizo (Exhibit E).
On November 6, 1991, the Regional Trial Court, Branch 71, of Iba, Zambales
rendered
a
decision,
the
dispositive
portion
of
which
reads
as
follows: 4
WHEREFORE, in view of the foregoing considerations, the Court hereby
renders judgment:
(a) Declaring the Extra-Judicial Settlement-Partition dated August 19,
1981, valid;
(b) Declaring the Deed of Donation dated June 1, 1981, revoked;
(c) Ordering the defendant to vacate and reconvey that donated
portion of Lot 2, Lot 1121 subject of the Deed of Donation dated June 1,
1981 to the plaintiff or her heirs or assigns;
(d) Ordering the defendant to remove the house built inside the
donated portion at the defendant's expense or pay a monthly rental of
P300.00 Philippine Currency;
(e) Ordering the defendant to pay attorney's fees in the amount of
P5,000.00; and
(f) To pay the cost.
Rodolfo Nocedo appealed to the respondent Court which affirmed the trial court as
follows: 5
WHEREFORE, judgment is hereby rendered, ORDERING defendant
Rodolfo Noceda to VACATE the portion known as Lot "C" of Lot 1121

per Exhibit E, which was allotted to plaintiff Aurora Arbizo Directo.

Except for this modification, the Decision, dated November 6, 1991, of
the RTC-Iba, Zambales, Branch 71, in Civil Case No. RTC-354-I, is
hereby AFFIRMED in all other respects. Costs against defendant
Rodolfo Noceda.
Dissatisfied, petitioner filed the instant petition for review with the following
assignment of errors: 6
THE COURT OF APPEALS ERRED IN HOLDING THAT THE
SUBJECT PROPERTY IDENTIFIED AS LOT 1121 CONTAINS
AN AREA IN EXCESS OF THAT STATED IN ITS TAX
DECLARATION.
THE COURT OF APPEALS ERRED IN HOLDING THAT LOT
1121 SHOULD BE PARTITIONED IN ACCORDANCE WITH
THE EXTRA-JUDICIAL SETTLEMENT DATED 17 AUGUST
1981.
THE COURT OF APPEALS ERRED IN ADJUDICATING AND
ALLOTING LOT "C" AS APPEARING IN THE SURVEY PLAN
PREPARED BY GEODETIC ENGINEER EDILBERTO QUEJADA
TO THE RESPONDENT.
THE COURT OF APPEALS ERRED IN FINDING THAT THE
PETITIONER USURPED AN AREA ADJUDICATED TO THE
RESPONDENT.
THE COURT OF APPEALS ERRED IN REVOKING THE DEED
OF DONATION DATED 1 JUNE 1981.
The first issue raised refers to the actual area of the subject lot known as Lot 1121,
which was registered under Tax Declaration No. 16-0032 under the name of the late
Celestino Arbizo. Petitioner claims that Tax Declaration No. 16-0032 contains only an
area of 29,845 sq. meter; thus the respondent Court exceeded its judicial authority
when it sustained the lower court's findings that the subject property actually
contains an area of 127,289 square meters.
We find the argument unmeritorious. The records disclose that the trial court in an
Order dated June 8, 1987 gave both parties to this case the chance to have the
subject property re-surveyed by a licensed surveyor to determine the actual area of
Lot 1121. 7 Plaintiff Aurora Directo filed a motion/compliance where she suggested
that Geodetic Engineer Edilberto V. Quejada of the Bureau of Lands, Iba, Zambales
be commissioned to undertake the survey 8 said motion was also sent to
defendant's counsel, Atty. Eufracio Pagunuran for Comment, 9 but Atty. Pagunuran
however failed to file his Comment within the given period. Thus the trial court
designated Engineer Quejada to undertake the survey of Lot 1121. 10 Petitioner

Noceda through counsel belatedly filed his Comment without any opposition to the
appointment of Engineer Quejada but proposed that the latter be tasked to solely
(a) re-survey, determine and identify the metes and bounds of the lot covered by
Tax Declaration No. 16-0032; (b) to identify the areas occupied by the parties
therein; and (c) to conduct the re-survey with notice and in the presence of the
parties therein and their respective counsels. 11 The Comment was not, however,
acted upon by the trial court in view of its earlier Order directing Engineer Quejada
to undertake the survey of the land. 12 Engr. Quejada conducted the survey with the
conformity and in the presence of both parties, taking into consideration the
extrajudicial partition dated August 17, 1981, deed of donation dated June 1, 1981
executed by plaintiff Aurora Directo in favor of defendant Rodolfo Noceda and the
actual area occupied by the parties, 13 as well as the sketch plan 14 and the
technical description of Lot 1121 taken from the Records Section of the Bureau of
Lands, Manila. 15 The report and the survey plan submitted by Engr. Quejada were
approved by the Trial Court in an Order dated December 7, 1987. 16 These
circumstances show that the lower court ordered the re-survey of the lot to
determine the actual area of Lot 1121 and such survey was done with the
conformity and in the presence of both parties. The actual land area based on the
survey plan which was conducted in the presence of both parties, showed a much
bigger area than the area declared in the tax declaration but such differences are
not uncommon as early tax declarations are, more often than not, based on
approximation or estimation rather than on computation. 17 We hold that the
respondent court did not err in sustaining the trial court's findings that the actual
area of Lot 1121 is 127,289 square meters.
Petitioner also contends that said judicial determination improperly encroaches on
the rights and claims of third persons who were never impleaded below; that the
subject lot was also declared in the name of one Cecilia Obispo and a Free Patent
over the said lot was also issued in her name and that there are several residential
houses constructed and existing on Lot 8 of lot 112l, thus these
possessors/occupants of Lot 8 should be joined as defendants for their non-inclusion
would be fatal to respondent's cause of action.
We find no merit in this argument. The respondent Court correctly ratiocinated on
this issue as follows: 18
The fact that Cecilia Obispo has tax declarations in her name over Lot
1121 and several persons occupied a portion thereof did not make
them indispensable parties in the present case. Defendant Noceda
merely presented the tax declarations in the name of Cecilia Obispo
without the alleged free patent in her name. Moreover, no evidence
was presented showing that Cecilia Obispo possessed or claimed
possession of Lot 1121. Tax receipts and declarations of ownership for
tax purposes are not conclusive evidence of ownership of property
(Republic
vs.
Intermediate
Appellate
Court,
224
SCRA
285).1wphi1.nt

It was not necessary that the occupants of a portion of Lot 1121,

designated as Lot 8, be impleaded in the present case. Lot 8, though
part of Lot 1121, was excluded by Engr. Quejada in determining the
respective portions of Lot 1121 occupied by plaintiff Directo, defendant
Noceda and Maria Arbizo pursuant to the extrajudicial settlement
which they executed on August 17, 1981. The result of the present suit
shall not in any way affect the occupants of Lot 8, since the issues
involved in the present case are the usurpation by defendant Noceda
of the land adjudicated to plaintiff Directo and the propriety of the
cancellation of the deed of donation in favor of defendant Noceda due
to his ingratitude to plaintiff Directo.
Notably, defendant's counsel requested for the appearance of Cecilia Obispo and
despite notice to her to appear in court and bring with her the alleged free patent in
her name, 19 she failed to appear and even failed to intervene to protect whatever
interest and right she has over the subject lot. As to the other possessors of
residential houses in Lot 8 of Lot 1121, they are not considered as indispensable
parties to this case. A party is not indispensable to the suit if his interest in the
controversy or subject matter is distinct and divisible from the interest of the other
parties and will not necessarily be prejudiced by a judgment which does complete
justice to the parties in court. 20 Private respondent is not claiming the entire area of
Lot 1121 but only a portion thereof which was adjudicated to her based on the
August 17, 1981 extrajudicial settlement and which was denominated in the survey
plan as Lot C of Lot 1121; thus there was no need to implead the occupants of Lot 8.
Petitioner further claims that the subject property could not be partitioned based on
the extrajudicial settlement-partition dated August 17, 1981, since the distributive
share of the heirs of the late Celestino Arbizo and the area of Lot 1121 stated
therein were different from the extrajudicial settlement executed on June 1, 1981;
that the discrepancies between the two deeds of partition with respect to the area
of Lot 1121 and the respective share of the parties therein indicated that they never
intended that any of the deeds to be the final determination of the portions of Lot
1121 allotted to them; that the extrajudicial settlement-partition of August 17, 1981
could not effectively subdivide Lot 1121 because it partitioned only 29,845 square
meters, and not its actual area of 127,298 square meters.
We see no cogent reason to disturb the findings of the respondent Court as
follows: 21
The discrepancies between the extrajudicial settlements executed by
plaintiff Directo, defendant Noceda and Maria Arbizo on June 1, 1981
and August 17, 1981 only meant that the latter was intended to
supersede the former. The signature of defendant Noceda in the
extrajudicial settlement of August 17, 1981 would show his conformity
to the new apportionment of Lot 1121 among the heirs of the late
Celestino Arbizo. The fact that defendant Noceda occupied the portion
allotted to him in the extrajudicial settlement, as well as the donated

portion of the share of plaintiff Directo, presupposes his knowledge of

the extent of boundaries of the portion of Lot 1121 allotted to him.
Moreover, the statement in the extrajudicial settlement of August 17,
1981 with respect to the area of Lot 1121, which was 29,845 square
meters, is not conclusive because it was found out, after the relocation
survey was conducted on Lot 1121, that the parties therein occupied
an area larger than what they were supposed to possess per the
extrajudicial settlement-partition of August 17, 1981.
Although in the extrajudicial settlement dated August 17, 1981 the heirs of
Celestino Arbizo partitioned only a 29,845 square meter lot to conform with the area
declared under tax declaration 16-0032 yet the heirs were each actually occupying
a bigger portion the total area of which exceeded 29,845 square meters. This was
confirmed by Geodetic Engineer Quejada in his report submitted to the trial court
where he stated among other things: 22
7. that upon computation of actual survey, it is informed (sic) that the
area dated (sic) as per extrajudicial settlement-partition in the name of
Celestino Arbizo was smaller than the computed lots of their actual
occupancy as per survey on the ground;
8. The Lot A, Lot B, and Lot C as appearing on prepared plan for ready
reference was subdivided, base (sic) on stated sharing as per EXTRA
JUDICIAL SETTLEMENT-PARTITION base (sic) on actual occupancy.
The survey conducted on Lot 1121 was only a confirmation of the actual
areas being occupied by the heirs taking into account the percentage
proportion adjudicated to each heir on the basis of their August 17, 1981
extrajudicial settlement.
Petitioner further alleges that the said partition tries to vest in favor of a third
person, Maria Arbizo, a right over the said property notwithstanding the
absence of evidence establishing that she is an heir of the late Celestino
Arbizo since Maria Arbizo was never impleaded as a party in this case and her
interest over Lot 1121 was not established.
Such contention deserves scant consideration. We find no compelling basis to
disturb the finding of the trial court on this factual issue, as follows: 23
In effect, the defendant denies the allegation of the plaintiff that Maria
Arbizo was the third wife of Celestino Arbizo and Agripina is her half
sister with a common father. On this point, the Court believes the
version of the plaintiff. The Court observes that in the "Extra-Judicial
Settlement-Partition" (Exhibit "C"), Maria Arbizo is named one of the
co-heirs of the defendant, being the widow of his grandfather,
Celestino Arbizo. The names of Anacleto and Agripina do not also
appear in the Extra-judicial Settlement and Partition because according

to the plaintiff, they had sold their shares to Maria Arbizo. And the
defendant is one of the signatories to the said Deed of Extra-judicial
Settlement-Partition acknowledged before Notary Public Artemio
Maranon. Under the circumstances, the Court is convinced that the
defendant knew that Maria Arbizo was the widow of Celestino Arbizo
and he knew of the sale of the share of Anacleto Arbizo his share, as
well as that of Agripina. When the defendant signed the Extra-Judicial
Settlement, he was already an adult since when he testified in 1989,
he gave his age as 50 years old. So that in 1981, he was already 41
years old. If he did not know all of these, the defendant would have not
agreed to the sharing and signed this document and acknowledged it
before the Notary Public. And who could have a better knowledge of
the relationship of Agripina and Maria Arbizo to Celestino Arbizo than
the latter's daughter? Besides, at the time of the execution of the
Extra-Judicial Settlement-Partition by the plaintiff and defendant, they
were still in good terms. There was no reason for the plaintiff to favor
Maria Arbizo and Agripina Arbizo over the defendant. Furthermore, the
defendant had failed to support his allegation that when his
grandfather died he had no wife and child.
We likewise find unmeritorious petitioner's claim that there exist no factual and
legal basis for the adjudication of Lot C of Lot 1121 to private respondent Aurora
Directo. It bears stress that the relocation survey plan prepared by Geodetic
Engineer Quejada was based on the extrajudicial settlement dated August 17, 1981,
and the actual possession by the parties and the technical description of Lot 1121.
It was established by the survey plan that based on the actual possession of the
parties, and the extrajudicial settlement among the heirs the portion denominated
as Lot C of Lot 1121 of the survey plan was being occupied by private respondent
Aurora Directo and it was also shown that it is in Lot C where the 625 square meter
area donated by private respondent Directo to petitioner is located. There is no
obstacle to adjudicate Lot C to private respondent as her rightful share allotted to
her in the extrajudicial settlement.
Petitioner argues that he did not usurp the property of respondent Directo since, to
date, the metes and bounds of the parcel of land left by their predecessor in
interest, Celestino Arbizo, are still undetermined since no final determination as to
the exact areas properly pertaining to the parties herein; hence they are still
considered as co-owners thereof.
We do not agree.
In this case the source of co-ownership among the heirs was intestate
succession. Where there are two or more heirs, the whole estate of the
decedent is, before its partition, owned in common by such heirs subject to
the payment of debts of the deceased. 24 Partition, in general, is the
separation, division and assignment of a thing held in common among those
to whom it may belong. 25 The purpose of partition is to put an end to co-

ownership. It seeks a severance of the individual interest of each co-owner,

vesting in each a sole estate in specific property and giving to each one a
right to enjoy his estate without supervision or interference from the
other. 26 And one way of effecting a partition of the decedent's estate is by
the heirs themselves extrajudicially. The heirs of the late Celestino Arbizo
namely Maria Arbizo, Aurora A. Directo (private respondent) and Rodolfo
Noceda (petitioner) entered into an extrajudicial settlement of the estate on
August 17, 1981 and agreed to adjudicate among themselves the property
left by their predecessor-in-interest in the following manner:
To Rodolfo Noceda goes the northern one-fifth (1/5) portion containing
an area of 5,989 sq. meters;
To Maria Arbizo goes the middle three-fifths (3/5) portion; and To
Aurora Arbizo goes the southern one-fifth (1/5) portion. 27
In the survey plan submitted by Engineer Quejada, the portions indicated by red
lines and numbered alphabetically were based on the percentage proportion in the
extrajudicial settlement and the actual occupancy of each heir which resulted to
these divisions as follows: 28
Lot A; the area is 2,957 sq.m. goes to Rodolfo A. Noceda (1/5)
Lot B; 38,872 sq.m. Maria Arbizo (3/5)
Lot C; 12,957 sq.m. Aurora Arbizo (1/5)
Thus, the areas allotted to each heir are now specifically delineated in the
survey plan. There is no co-ownership where portion owned is concretely
determined and identifiable, though not technically described, or that said
portions are still embraced in one and the same certificate of title does not
make said portions less determinable or identifiable, or distinguishable, one
from the other, nor that dominion over each portion less exclusive, in their
respective owners. 29 A partition legally made confers upon each heir the
exclusive ownership of the property adjudicated to him. 30
We also find unmeritorious petitioner's argument that since there was no
effective and real partition of the subject lot there exists no basis for the
charge of usurpation and hence there is also no basis for finding ingratitude
against him. It was established that petitioner Noceda occupied not only the
portion donated to him by private respondent Aurora Arbizo-Directo but he
also fenced the whole area of Lot C which belongs to private respondent
Directo, thus petitioner's act of occupying the portion pertaining to private
respondent Directo without the latter's knowledge and consent is an act of
usurpation which is an offense against the property of the donor and
considered as an act of ingratitude of a donee against the donor. 31 The law

does not require conviction of the donee; it is enough that the offense be
proved in the action for revocation. 32
Finally, petitioner contends that granting revocation is proper, the right to enforce
the same had already prescribed since as admitted by private respondent,
petitioner usurped her property in the first week of September 1985 while the
complaint for revocation was filed on September 16, 1986, thus more than one (1)
year had passed from the alleged usurpation by petitioner of private respondent's
share in Lot 1121. We are not persuaded. The respondent Court rejected such
argument in this wise:
Art. 769 of the New Civil Code states that: "The action granted to the
donor by reason of ingratitude cannot be renounced in advance. This
action prescribes within one year to be counted from the time the
donor had knowledge of the fact and it was possible for him to bring
the action." As expressly stated, the donor must file the action to
revoke his donation within one year from the time he had knowledge of
the ingratitude of the donee. Also, it must be shown that it was
possible for the donor to institute the said action within the same
period. The concurrence of these two requisites must be shown by
defendant Noceda in order to bar the present action. Defendant
Noceda failed to do so. He reckoned the one year prescriptive period
from the occurrence of the usurpation of the property of plaintiff
Directo in the first week of September, 1985, and not from the time the
latter had the knowledge of the usurpation. Moreover, defendant
Noceda failed to prove that at the time plaintiff Directo acquired
knowledge of his usurpation, it was possible for plaintiff Directo to
institute an action for revocation of her donation.
The action to revoke by reason of ingratitude prescribes within one (1) year to be
counted from the time (a) the donor had knowledge of the fact; (b) provided that it
was possible for him to bring the action. It is incumbent upon petitioner to show
proof of the concurrence of these two conditions in order that the one (1) year
period for bringing the action be considered to have already prescribed. No
competent proof was adduced by petitioner to prove his allegation. In Civil Cases,
the party having the burden of proof must establish his case by preponderance of
evidence. 33 He who alleges a fact has the burden of proving it and a mere
allegation is not evidence. 34
Factual findings of the Court of Appeals, supported by substantial evidence on
record are final and conclusive on the parties and carry even more weight when the
Court
of
Appeals
affirms
the
factual
findings
of
the
trial
35
court; for it is not the function of this Court to re-examine all over again the oral
and documentary evidence submitted by the parties unless the findings of fact of
the Court of Appeals are not supported by the evidence on record or the judgment
is based on the misapprehension of facts. 36 The jurisdiction of this court is thus
limited to reviewing errors of law unless there is a showing that the findings

complained of are totally devoid of support in the record or that they are so
glaringly erroneous as to constitute serious abuse of discretion. 37 We find no such
showing in this case.
We find that both the trial court and the respondent Court had carefully considered
the questions of fact raised below and the respondent Court's conclusions are based
on the evidence on record. No cogent reason exists for disturbing such
findings. 38 We also note that petitioner in this petition merely rehashed the same
issues and arguments raised in the respondent Court in whose decision we find no
reversible error. Clearly, petitioner failed to present any substantial argument to
justify a reversal of the assailed decision.
WHEREFORE, the petition
appellant.1wphi1.nt

for

review

is

hereby

DENIED.

Costs

against

SO ORDERED.
Melo, Vitug, Panganiban and Purisima, JJ., concur.
Footnotes

G.R. No. 126950 July 2, 1999

NELSON NUFABLE, SILMOR NUFABLE and AQUILINA NUFABLE, petitioners,
vs.
GENEROSA NUFABLE, VILFOR NUFABLE, MARCELO NUFABLE, and the
COURT OF bbAPPEALS, respondents.

GONZAGA-REYES, J.:
This petition for review on certiorari seeks to reverse and set aside the Decision
dated November 25, 1995 of the Fifth Division 1 of the Court of Appeals for allegedly
being contrary to law.
The following facts as found by the Court of Appeals are undisputed:
Edras Nufable owned at Poblacion, Manjuyod, Negros Oriental,
consisting of 948 square meters, more or less. He died on August 9,
1965 and was survived by his children, namely: Angel Custodio,
Generosa, Vilfor and Marcelo, all surnamed Nufable. Upon petition for
probate filed by said heirs and after due publication and hearing, the
then Court of First Instance of Negros Oriental (Branch II) issued an
Order dated March 30, 1966 admitting to probate the last will and

testament executed by the deceased Edras Nufable (Exhs. B, C and C1).

On June 6, 1966 the same court issued an Order approving the
Settlement of Estate submitted by the heirs of the late ESdras Nufable,
portions of which read:
KNOW ALL MEN BY THESE PRESENTS:
We, ANGEL CUSTODIO NUFABLE, GENEROSA NUFABLE,
VILFOR NUFABLE and MARCELO NUFABLE, all of legal ages
(sic), Filipinos, and with residence and postal address at
Manjuyod, Negros Oriental, Philippines,
HEREBY DECLARE AND MAKE MANIFEST
1. That on August 9, 1965, Rev. Fr. Esdras Nufable died
leaving (a) Last Will and Testament (marked Exh. G)
disposing (of) his properties or estate in favor of his four
legitimate children, namely: Angel Custodio Nufable,
Generosa Nufable, Vilfor Nufable and Marcelo Nufable;
2. That on March 30, 1966 the said Last Will and
Testament was probated by the Honorable Court, Court of
First Instance of Negros Oriental, and is embodied in the
same order appointing an Administratrix, Generosa
Nufable, but to qualify only if she put up a necessary bond
of P1,000.00;
3. That herein legitimate children prefer not to appoint an
Administratrix, as agreed upon (by) all the heirs, because
they have no objection as to the manner of disposition of
their share made by the testator, the expenses of the
proceedings and that they have already taken possession
of their respective shares in accordance with the will;
4. That the herein heirs agreed, as they hereby agree to
settle the estate in accordance with the terms and
condition of the will in the following manner, to wit:
a) That the parcel of land situated in Poblacion Manjuyod,
Negros Oriental remains undivided for community
ownership but respecting conditions imposed therein (sic)
in the will;
xxx xxx xxx

(Exhs. "E" and "E-1")

Two months earlier, or on March 15, 1966, spouses Angel Custodio and
Aquilina Nufable mortgaged the entire property located at Manjuyod to
the Development Bank of the Philippines [DBP] (Pre-trial Order, dated
January 7, 1992, p. 103, Original Records). Said mortgagors became
delinquent for which reason the mortgaged property was foreclosed by
DBP on February 26, 1973 (id.).
On January 11, 1980, Nelson Nufable, the son of Angel Custodio
Nufable (who died on August 29, 1978 [TSN, Testimony of Nelson
Nufable, Hearing of August 18, 1992, p. 17]), purchased said property
from DBP (Exh. "1").
Generosa, Vilfor and Marcelo, all surnamed Nufable filed with the lower
court a complaint dated July 25, 1985 "To Annul Fraudulent
Transactions, to Quiet Title and To Recover Damages' against Nelson
Nufable, and wife, Silmor Nufable and his mother Aquilina Nufable.
Plaintiffs pray:
WHEREFORE, plaintiffs pray this Honorable Court that
after trial judgment be rendered ordering:
(a) That the said Deed of Sale (Annex "C") executed by
the Development Bank of the Philippines in favor of the
defendants be declared null and void as far as the three
fourths (3/4) rights which belongs (sic) to the plaintiffs are
concerned;
(b) That the said three fourths (3/4) rights over the above
parcel in question be declared as belonging to the
plaintiffs at one fourth right to each of them;
(c) To order the defendants to pay jointly and severally to
the plaintiffs by way of actual and moral damages the
amount of P10,000.00 and another P5,000.00 as
Attorney's fees, and to pay the costs.
(d) Plus any other amount which this Court may deem just
and equitable. (p. 6, Original Records)
In their Answer, defendants contend:
4. Paragraph 4 is denied, the truth being that the late
Angel Nufable was the exclusive owner of said property,
that as such owner he mortgaged the same to the
Development Bank of the Philippines on March 15, 1966,

that said mortgage was foreclosed and the DBP became

the successful bidder at the auction sale, that ownership
was consolidated in the name of the DBP, and that
defendant Nelson Nufable bought said property from the
DBP thereafter. During this period, the plaintiffs never
questioned the transactions which were public, never filed
any third party claim nor attempted to redeem said
property as redemptioners, and that said Deed of Sale,
Annex "B" to the complaint, is fictitious, not being
supported by any consideration; (pp. 20-21, id.)
The Deed of Sale (Annex "B"), referred to by the parties is a notarized
Deed of Sale, dated July 12, 1966 (marked as Exhibit "H") by virtue of
which, spouses Angel and Aquilina Nufable, as vendors, sold 3/4
portion of the subject property to herein plaintiffs for and in
consideration of P1,000.00 (Exh. "5"). 2
On November 29, 1995, the Court of Appeals rendered judgment, the dispositive
portion 3 of which reads:
WHEREFORE, the appealed decision of the lower court is REVERSED
and SET ASIDE. A new judgment is hereby entered declaring plaintiffsappellants as the rightful co-owners of the subject property and
entitled to possession of 3/4 southern portion thereof; and defendantappellee Nelson Nufable to 1/4 portion.
No award on damages.
No costs.
Defendants-appellees' Motion for Reconsideration was denied for lack of merit in the
Resolution of the Court of Appeals 4 dated October 2, 1996.
Hence, the present petition. Petitioners raise the following grounds for the petition:
1. Honorable Court of Appeals erred in considering as controlling the
probate of the Last Will and Testament of Esdras Nufable, the probate
thereof not being an issue in this case;
2. The Honorable Court of Appeals erred in not considering the fact
that the Development Bank of the Philippines became absolute,
exclusive, legal and rightful owner of the land in question, from whom
petitioner Nelson Nufable acquired the same by purchase and that,
therefore, no award can be made in favor of private respondent unless
and until the Development Bank of the Philippines' title thereto is first
declared null and void by the court.

The Court of Appeals, in its decision, stated that the trial court failed to take into
consideration the probated will of the late Esdras Nufable bequeathing the subject
property to all his four children. 5 In the present petition, petitioner present the issue
of whether or not the Last Will and Testament of Esdras Nufable and its subsequent
probate are pertinent and material to the question of the right of ownership of
petitioner Nelson Nufable who purchased the land in question from, and as acquired
property of, the Development Bank of the Philippines (DBP, for short). They contend
that the probate of the Last Will Testament and of Esdras Nufable did not determine
the ownership of the land in question as against third parties.1wphi1.nt
As a general rule, courts in probate proceedings are limited only to passing upon
the extrinsic validity of the will sought to be probated, the due execution thereof,
the testator's testamentary capacity and the compliance with the requisites or
solemnities prescribes by law. Said court at this stage of the proceedings is not
called to rule on the rule on the intrinsic validity or efficacy of the will. 6 The
question of the intrinsic validity of a will normally comes only after the court has
declared that the will has been duly authenticated.
The records show that upon petition for probate filed by the heirs of the late Esdras
Nufable, an Order dated March 30, 1966 was issued by then Court of First Instance
of Negros Oriental, Branch II, admitting to probate the last will and testament
executed by the decedent. 7 Thereafter, on June 6, 1966, the same court approved
the Settlement of Estate submitted by the heirs of the late Esdras Nufable wherein
they agreed "(T)hat the parcel land situated in Poblacion Manjuyod, Negros Oriental
remains undivided for community ownership but respecting conditions imposed
therein (sic) in the will." 8 In paragraph 3 thereof, they stated that "they have no
objection as to the manner of disposition of their share made by the testator, the
expenses of the proceeding and that they have already taken possession of their
respective shares in accordance with the will." Verily, it was the heirs of the late
Esdras Nufable who agreed among themselves on the disposition of their shares.
The probate court simply approved the agreement among the heirs which approval
was necessary for the validity of any disposition of the decedent's estate. 9
It should likewise be noted that the late Esdras Nufable died on August 9, 1965.
When the entire property located at Manjuyod was mortgaged on March 15, 1966
by his son Angel Custodio with DBP, the other heirs of Esdras namely: Generosa,
Vilfor and Marcelo had already acquired successional rights over the said
property. This is so because of the principle contained in Article 777 of the Civil
Code to the effect that the rights to the succession are transmitted from the
moment of death of the decedent. Accordingly, for the purpose of transmission of
rights, it does not matter whether the Last Will and Testament of the late Esdras
Nufable was admitted on March 30, 1966 or thereafter or that the Settlement of
Estate was approved on June 6, 1966 or months later. It is to be noted that the
probated will of the late Esdras Nufable specifically referred to the subject property
in stating that "the land situated in the Poblacion, Manjuyod, Negros Oriental,
should not be divided because this must remain in common for them, but it is
necessary to allow anyone of them brothers and sisters to construct a house

therein." 10 It was therefor the will of the decedent that the subject property should
undivided, although the restriction should not exceed twenty (20) years pursuant to
Article 870 11 of the Civil Code.
Thus, when Angel Nufable and his spouses mortgaged the subject property to DBP
on March 15, 1966, they had no right to mortgage the entire property. Angel's right
over the subject property was limited only to 1/4 pro indivisoshare. As co-owner of
the subject property, Angel's right to sell, assign or mortgage is limited to that
portion that may be allotted to him upon termination of the co-ownership. Wellentrenched is the rule that a co-owner can only alienate his pro indiviso share in the
co-owned property. 12
The Court of Appeals did not err in ruling that Angel Custodio Nufable "had no right
to mortgage the subject property in its entirety. His right to encumber said property
was limited only to 1/4 pro indiviso share of the property in question." 13 Article 493
of the Civil Code spells out the rights or co-owners over a co-owned property.
Pursuant to said Article, a co-owner shall have full ownership of his part and of the
fruits and benefits pertaining thereto. He has the right to alienate, assign or
mortgage it, and even substitute another person in its enjoyment. As a mere part
owner, he cannot alienate the shares of the other co-owners. The prohibition is
premised on the elementary rule that "no one can give what he does not have." 14
Moreover, respondents stipulated that they were not aware of the mortgage by
petitioners of the subject property. 15 This being the case, a co-owner does not lose
his part ownership of a co-owned property when his share is mortgaged by another
co-owner without the former's knowledge and consent 16 as in the case at bar. It has
likewise been ruled that the mortgage of the inherited property is not binding
against co-heirs who never benefitted. 17
Furthermore, the Deed of Sale dated June 17, 1966 marked as Exhibit "H" executed
by spouses Angel and Aquilina Nufable in favor of respondents Generosa, Vilfor and
Marcelo wherein the former sold, ceded and transferred back to the latter the 3/4
portion of the subject property bolsters respondents' claim that there was coownership. Petitioner Nelson himself claimed that he was aware of the aforesaid
Deed of Sale. 18
Anent the second ground of the petition, petitioners allege that the Development
Bank of the Philippines acquired ownership of the land in question through
foreclosure, purchase and consolidation of ownership. Petitioners argue that if
petitioner Nelson Nufable had not bought said land from the DBP, private
respondents, in order to acquire said property, must sue said bank for the recovery
thereof, and in so doing, must allege grounds for the annulment of documents
evidencing the bank's ownership thereof. Petitioners contend that since petitioner
Nelson Nufable simply bought the whole land from the bank, they cannot be
deprived of the ownership of 3/4 without making any pronouncement as to the
legality or illegality of the bank's ownership of said land. It is argued that there was
no evidence to warrant declaration of nullity of the bank's acquisition of said land;

and that neither was there a finding by the court that the bank illegally acquired the
said property.
As adverted to above, when the subject property was mortgaged by Angel Custodio,
he had no right to mortgage the entire property but only with respect to his 1/4 pro
indiviso share as the property was subject to the successional rights of the other
heirs of the late Esdras. Moreover, in case of foreclosure; a sale would result in the
transmission of title to the buyer which is feasible only if the seller can be in a
position to convey ownership of the things sold. 19 And in one case, 20 it was held
that a foreclosure would be ineffective unless the mortgagor has title to the
property to be foreclosed. Therefore, as regards the remaining 3/4 pro
indiviso share, the same was held in trust for the party rightfully entitled
thereto, 21 who are the private respondents herein.
Pursuant to Article 1451 of the Civil Code, when land passes by succession to any
person and he causes the legal title to be put in the name of another, a trust is
established by implication of law for the benefit of the true owner. Likewise, under
Article 1456 of the same Code, if property is acquired through mistake or fraud, the
person obtaining it is, by force of law, considered a trustee of an implied trust for
the benefit of the person from whom the property comes. In the case of Noel
vs. Court of Appeals, 22 this Court held that "a buyer of a parcel of land at a public
auction to satisfy a judgment against a widow acquired only one-half interest on the
land corresponding to the share of the widow and the other half belonging to the
heirs of her husband became impressed with a constructive trust in behalf of said
heirs."
Neither does the fact that DBP succeeded in consolidating ownership over the
subject property in its name terminate the existing co-ownership. Registration of
property is not a means of acquiring ownership. 23 When the subject property was
sold to and consolidated in the name of DBP, it being the winning bidder in the
public auction, DBP merely held the 3/4 portion in trust for the private respondents.
When petitioner Nelson purchased the said property, he merely stepped into the
shoes of DBP and acquired whatever rights and obligations appertain thereto.
This brings us to the issue of whether or not the DBP should have been impleaded
as party-defendant in the case at bar. Petitioners contend that DBP was never
impleaded and that due process requires that DBP be impleaded so that it can
defend its sale to petitioner Nelson Nufable; and that it was the duty of private
respondents, and not of petitioner Nelson, to implead the bank and ask for the
annulment of documents evidencing the bank's ownership of the disputed land.
In the Rejoinder to the Reply, private respondents that the non-inclusion of DBP as a
"necessary party" was not questioned by petitioners from the time the Complaint
was filed until the case was "finished." It was only after the adverse decision by the
respondent Court of Appeals that petitioners raised the issue.

At the outset, it should be stated petitioners never raised this issue in their Answers
and pursuant to Section 2, Rule 9 of the Rules of Court, defenses and objections not
pleaded either in a motion to dismiss or in the answer are deemed waived.
Nonetheless, the rule is that indispensable parties, i.e., parties in interest without
whom no final determination can be had of an action, shall be joined either as
plaintiffs or defendants; the inclusion as a party, i.e., persons who are not
indispensable but ought to be parties if complete relief is to be accorded as
between those already parties, the court may, in its discretion, proceed in the action
without making such persons parties, and the judgment rendered therein shall be
without prejudice to the rights of such persons. 25 Proper parties, therefore, have
been described as parties whose presence in necessary in order to adjudicate the
whole controversy, but whose interests are so far separable that a final decree can
be made in their absence without affecting them. 26 Any claim against a party may
be severed and proceeded with separately. 27
The pivotal issue to be determined is whether DBP is an indispensable party in this
case.
Private respondents do not question the legality of the foreclosure of the mortgaged
property and the subsequent sale of the same to DBP. The subject property was
already purchased by petitioner Nelson from DBP and latter, by such sale,
transferred its rights and obligations to the former. Clearly, petitioners' interest in
the controversy is distinct and separable from the interest of DBP and a final
determination can be had of the action despite the non-inclusion of DBP as partydefendant. Hence, DBP, not being an indispensable party, did not have to be
impleaded in this case.
WHEREFORE, there being no reversible error in the decision appealed from, the
petition for review on certiorari is hereby DENIED.1wphi1.nt
G.R. No. L-14070

March 29, 1961

MARIA GERVACIO BLAS, MANUEL GERVACIO BLAS, LEONCIO GERVACIO

BLAS
and
LODA
GERVACIO
BLAS, plaintiffs-appellants,
vs.
ROSALINA SANTOS, in her capacity as Special Administratrix of the Estate
of the deceased MAXIMA SANTOS VDA. DE BLAS, in Sp. Proc. No. 2524,
Court of First Instance of Rizal, defendants-appellants. MARTA GERVACIO
BLAS and DR. JOSE CHIVI, defendants-appellants.
Teofilo
Sison
and
Nicanor
Sison
for
plaintiffs-appellants.
De los Santos, Caluag, Pascal and Felizardo for defendants-appellees.
LABRADOR, J.:
This action was instituted by plaintiffs against the administration of the estate of
Maxima Santos, to secure a judicial declaration that one-half of the properties left

by Maxima Santos Vda. de Blas, the greater bulk of which are set forth and
described in the project of partition presented in the proceedings for the
administration of the estate of the deceased Simeon Blas, had been promised by
the deceased Maxima Santos to be delivered upon her death and in her will to the
plaintiffs, and requesting that the said properties so promised be adjudicated to the
plaintiffs. The complaint also prays for actual damages in the amount of P50,000.
(Record on Appeal, pp. 1-65.) The alleged promise of the deceased Maxima Santos
is contained in a document executed by Maxima Santos on December 26, 1936
attached to the complaint as Annex "H" and introduced at the trial as Exhibit "A".
(Ibid., pp. 258-259.) The complaint also alleges that the plaintiffs are entitled to
inherit certain properties enumerated in paragraph 3 thereof, situated in Malabon,
Rizal and Obando, Bulacan, but which properties have already been in included in
the inventory of the estate of the deceased Simeon Blas and evidently partitioned
and conveyed to his heirs in the proceedings for the administration of his (Simeon
Blas) estate.
Defendant, who is the administratrix of the estate of the deceased Maxima Santos
Vda. de Blas, filed an answer with a counterclaim, and later, an amended answer
and a counterclaim. The said amended answer admits the allegations of the
complaint as to her capacity as administratrix the death of Simeon Blas on January
3, 1937; the fact that Simeon Blas and Marta Cruz begot three children only one of
whom, namely, Eulalio Blas, left legitimate descendants; that Simeon Blas
contracted a second marriage with Maxima Santos on June 28, 1898. She denies for
lack of sufficient information and belief, knowledge edge of the first marriage of
Simeon Blas to Marta Cruz, the averment that Simeon Blas and Marta Cruz acquired
properties situated in Obando, Bulacan, that said properties were utilized as capital,
etc. As special defenses, she alleges that the properties of the spouses Blas and
Santos had been settled and liquidated in the project of partition of the estate of
said Simeon Blas; that pursuant to the project of partition, plaintiffs and some
defendants had already received the respective properties adjudicated to them;
that the plaintiffs and the defendants Marta Geracio and Jose Chivi are estopped
from impugning the validity of the project of partition of the estate of the deceased
Simeon Blas and from questioning the ownership in the properties conveyed in the
project of partition to Maxima Santos as her own exclusive property; that the
testament executed by Maxima Santos is valid, the plain plaintiffs having no right to
recover any portion of Maxima Santos' estate now under administration by the
court. A counterclaim for the amount of P50,000 as damages is also included in the
complaint, as also a cross-claim against Marta Gervacio Blas and Jose Chivi.
Trial of the case was Conducted and, thereafter, the court, Hon. Gustave Victoriano,
presiding, rendered judgment dismissing the complaint, with costs against plaintiff,
and dismissing also the counterclaim and cross-claim decision ,the plaintiffs filed by
the defendants. From this district have appealed to this Court.
The facts essential to an understanding of the issues involved in the case may be
briefly summarized as follows: Simeon Blas contracted a first marriage with Marta
Cruz sometime before 1898. They had three children, only one of whom, Eulalio, left
children, namely, Maria Gervacio Blas, one of the plaintiffs, Marta Gervacio Blas, one
of the defendants, and Lazaro Gervacio Blas. Lazaro died in 1950, and is survived by
three legitimate children who are plaintiffs herein, namely, Manuel Gervacio Blas,

Leoncio Gervacio Blas and Loida Gervacio Blas. Marta Cruz died in 1898, and the
following year, Simeon Blas contracted a second marriage with Maxima Santos. At
the time of this second marriage, no liquidation of the properties required by
Simeon Blas and Marta Cruz was made. Three of the properties left are fishponds
located in Obando, Bulacan. Maxima Santos does not appear to have apported
properties to her marriage with Simeon Blas.
On December 26, 1936, only over a week before over a week before his death on
January 9, 1937, Simeon Blas executed a last will and testament. In the said
testament Simeon Blas makes the following declarations:
I
2. Sa panahon ng aking pangalawang asawa, MAXIMA SANTOS DE BLAS, ay
nagkaroon ako at nakatipon ng mga kayamanan (bienes) at pag-aari
(propriedades) na ang lahat ng lupa, palaisdaan at iba pang pag-aari ay
umaabot sa halagang ANIM NA RAAN PITONG PU'T WALONG DAAN LIBO
WALONG DAAN WALONG PUNG PISO (678,880-00) sang-ayon sa mga halaga
sa amillarimento (valor Amillarado.)
II
1. Ang kalahati ng lahat ng aming pag-aari, matapos mabayaran ang lahat ng
aking o aming pag-kakautang na mag-asawa, kung mayroon man, yayamang
ang lahat ng ito ay kita sa loob ng matrimonio (bienes ganaciales) ay bahagi
ng para sa aking asawa, MAXIMA SANTOS DE BLAS, sang-ayon sa batas.
(Record on Appeal, pp. 250-251.)
The above testamentary provisions may be translated as follows:
I
2. During my second marriage with Maxima Santos de Blas, I possessed and
acquired wealth and properties, consisting of lands, fishponds and other kinds
of properties, the total assessed value of which reached the amount
P678,880.00.
II
1. One-half of our properties, after the payment of my and our indebtedness,
all these properties having been acquired during marriage (conjugal
properties), constitutes the share of my wife Maxima Santos de Blas,
according to the law.
At the time of the execution of said will, Andres Pascual a son-in-law of the testator,
and Avelina Pascual and others, were present. Andres Pascual had married a
descendant by the first marriage. The will was prepared by Andres Pascual, with the
help of his nephew Avelino Pascual. The testator asked Andres Pascual to prepare a
document which was presented in court as Exhibit "A", thus:

Q Was there anybody who asked you to prepare this document?

A Don Simeon Blas asked me to prepare this document (referring to Exhibit
"A"), (t.s.n., Sarmiento to, P. 24).
The reason why the testator ordered the preparation of Exhibit "A" was because the
properties that the testator had acquired during his first marriage with Marta Cruz
had not been liquidated and were not separated from those acquired during the
second marriage. Pascual's testimony is as follows:
Q To whom do you refer with the word "they"?
A Simeon Blas and his first wife, Marta Cruz. When Marta Cruz died they
had not made a liquidation of their conjugal properties and so all those
properties were included all in the assets of the second marriage, and that is
the reason why this document was prepared. (t.s.n., Sarmiento, p. 36.)
The above testimony is fully corroborated by that of Leoncio Gervacio, son-in-law of
Simeon Blas.
Q Please state to the Court?
A My children were claiming from their grandfather Simeon Blas the
properties left by their grandmother Marta Cruz in the year 1936.
Q And what happened with that claim of your children against Simeon Blas
regarding the assets or properties of the first marriage that were left after the
death of Marta Cruz in 1936?
A The claim was not pushed through because they reached into an
agreement whereby the parties Simeon Blas Maxima Santos, Maria Gervacio
Bias, Marta Gervacio Blas and Lazaro Gervacio Blas agreed that Simeon Blas
and Maxima Blas will give one-half of the estate of Simeon Blas. (t.s.n.,
Sarmiento, pp. 143-144).
The document which was thus prepared and which is marked as Exhibit "A" reads in
Tagalog, thus:
MAUNAWA NG SINO MANG MAKABABASA:
Na akong si MAXIMA SANTOS DE BLAS, nasa hustong gulang, kasal kay
SIMEON BLAS, taga bayan ng Malabon, Rizal, Philippines, sa pamamagitan ng
kasulatang ito ay malaya kong ipinahahayag:
Na aking nabasa at naunawa ang testamento at huling kalooban na nilagdaan
ng aking asawa, SIMEON BLAS, at ipinahahayag ko sa ilalim ng aking
karangalan at sa harap ng aking asawa na igagalang at pagpipitaganan ang
lahat at bawa't isang bahagi ng nabanggit na testamento at ipinangangako
ko pa sa pamamagitan ng kasulatang ito na ang lahat ng maiiwang pag-aari

at kayamanan naming mag-asawa, na nauukol at bahaging para sa akin sa

paggawa ko naman ng aking testamento ay ipagkakaloob ko ang kalahati ()
sa mga herederos at legatarios o pinamamanahan ng aking nabanggit na
asawa, SIMEON BLAS, sa kaniyang testamento, na ako'y makapipili o
makahihirang na kahit kangino sa kanila ng aking pagbibigyan at
pamamanahan sang-ayon sa paggalang, paglilingkod, at pakikisama ng
gagawin sa akin.
SA KATUNAYAN NG LAHAT NG ITO ay nilagdaan ko ang kasulatang ito ngayon
ika 26 ng Diciembre ng taong 1936, dito sa San Francisco del Monte, San
Juan, Rizal, Philippines. (Exh. "A", pp. 29-30 Appellant's brief).

(Fdo.) MAXIMA SANTOS DE BLAS

and which, translated into English, reads as follows:

KNOW ALL MEN BY THESE PRESENTS:
That I MAXIMA SANTOS DE BLAS, of legal age, married to SIMEON BLAS,
resident of Malabon, Rizal, Philippines, voluntarily state:
That I have read and knew the contents of the will signed by my husband,
SIMEON BLAS, (2) and I promise on my word of honor in the presence of my
husband that I will respect and obey all and every disposition of said will (3)
and furthermore, I promise in this document that all the properties my
husband and I will leave, the portion and share corresponding to me when I
make my will, I will give one-half () to the heirs and legatees or the
beneficiaries named in the will of my husband, (4) and that I can select or
choose any of them, to whom I will give depending upon the respect, service
and treatment accorded to me.
IN WITNESS WHEREOF, I signed this document this 26th day of December,
1936 at San Francisco del Monte, San Juan, Rizal, Philippines. (Exh. "A", pp.
30-31, Appellant's brief).

(Sgd.) MAXIMA SANTOS DE BLAS

The court below held that said Exhibit "A" has not created any right in favor of
plaintiffs which can serve as basis for the complaint; that neither can it be
considered as a valid and enforceable contract for lack of consideration and
because it deals with future inheritance. The court also declared that Exhibit "A" is
not a will because it does not comply with the requisites for the execution of a will;
nor could it be considered as a donation, etc.

Both the court below in its decision and the appellees in their brief before us, argue
vehemently that the heirs of Simeon Blas and his wife Marta Cruz can no longer
make any claim for the unliquidated conjugal properties acquired during said first
marriage, because the same were already included in the mass of properties
constituting the estate of the deceased Simeon Blas and in the adjudications made
by virtue of his will, and that the action to recover the same has prescribed. This
contention is correct. The descendants of Marta Cruz can no longer claim the
conjugal properties that she and her husband may have required during their
marriage although no liquidation of such properties and delivery thereof to the heirs
of Marta Cruz have been made, no action to recover said propertied having been
presented in the proceedings for the settlement of the estate of Simeon Blas.
But the principal basis for the plaintiffs' action in the case at bar is the document
Exhibit "A". It is not disputed that this document was prepared at the instance of
Simeon Blas for the reason that the conjugal properties of me on Blas for the reason
his first marriage had not been liquidated; that it was prepared at the same time as
the will of Simeon Blas on December 26, 1936, at the instance of the latter himself.
It is also not disputed that the document was signed by Maxima Santos and one
copy thereof, which was presented in court as Exhibit "A", was kept by plaintiffs'
witness Andres Pascual.
Plaintiffs-appellants argue before us that Exhibit "A" is both a trust agreement and a
contract in the nature of a compromise to avoid litigation. Defendants-appellees, in
answer, claim that it is neither a trust agreement nor a compromise a agreement.
Considering that the properties of the first marriage of Simeon Blas had not been
liquidated when Simeon Blas executed his will on December 26, 1936', and the
further fact such properties where actually , and the further fact that included as
conjugal properties acquired during the second marriage, we find, as contended by
plaintiffs-appellants that the preparation and execution of Exhibit "A" was ordered
by Simeon Blas evidently to prevent his heirs by his first marriage from contesting
his will and demanding liquidation of the conjugal properties acquired during the
first marriage, and an accounting of the fruits and proceeds thereof from the time of
the death of his first wife.
Exhibit "A", therefore, appears to be the compromise defined in Article 1809 of the
Civil Code of Spain, in force at the time of the execution of Exhibit "A", which
provides as follows:
Compromise is a contract by which each of the parties in interest, by
giving, promising, or retaining something avoids the provocation of a suitor
terminates one which has already the provocation been instituted. (Emphasis
supplied.)
Exhibit "A" states that the maker (Maxima Santos) had read and knew the contents
of the will of her husband read and knew the contents of the will Simeon Blas she
was evidently referring to the declaration in the will(of Simeon Blas) that his
properties are conjugal properties and one-half thereof belongs to her (Maxima
Santos) as her share of the conjugal assets under the law. The agreement or
promise that Maxima Santos makes in Exhibit "A" is to hold one-half of her said
share in the conjugal assets in trust for the heirs and legatees of her husband in his

will, with the obligation of conveying the same to such of his heirs or legatees as
she may choose in her last will and testament. It is to be noted that the conjugal
properties referred to are those that were actually existing at that time, December
26, 1936. Simeon Blas died on January 9, 1937. On June 2, 1937, an inventory of the
properties left by him, all considered conjugal, was submitted by Maxima Santos
herself as administratrix of his estate. A list of said properties is found in Annex "E",
the complete inventory submitted by Maxima Santos Vda. de Blas, is administratrix
of the estate of her husband, dated March 10, 1939. The properties which were
given to Maxima Santos as her share in the conjugal properties are also specified in
the project of partition submitted by said Maxima Santos herself on March 14, 1939.
(Record on Appeal, pp. 195-241.) Under Exhibit "A", therefore, Maxima Santos
contracted the obligation and promised to give one-half of the above indicated
properties to the heirs and legatees of Simeon Blas.
Counsel for the defendant-appellee claims Exhibit "A" is a worthless piece of paper
because it is not a will nor a donation mortis causa nor a contract. As we have in
indicated above, it is a compromise and at the same time a contract with a
sufficient cause or consideration. It is also contended that it deals with future
inheritance. We do not think that Exhibit "A" is a contract on future inheritance. it is
an obligation or promise made by the maker to transmit one-half of her share in the
conjugal properties acquired with her husband, which properties are stated or
declared to be conjugal properties in the will of the husband. The conjugal
properties were in existence at the time of the execution of Exhibit "A" on December
26, 1936. As a matter of fact, Maxima Santos included these properties in her
inventory of her husband's estate of June 2, 1937. The promise does not refer to any
properties that the maker would inherit upon the death of her husband, because it
is her share in the conjugal assets. That the kind of agreement or promise contained
in Exhibit "A" is not void under Article 1271 of the old Civil Code, has been decided
by the Supreme Court of Spain in its decision of October 8, 19154, thus:
Que si bien el art. 1271 del Codigo civil dispone que sobre la herenciafutura
no se podra celebrar otros contratos que aquellos cuyo objecto seapracticar
entre vivos la division de un caudal, conforme al articulo 1056, esta
prohibicion noes aplicable al caso, porque la obligacion que contrajoel recurr
en contrato privado de otorgar testamento e instituir heredera a su subrina
de los bienes que adquirio en virtud de herencia, procedentes desu finada
consorte que le quedasen sobrantes despues de pagar las deudas, y del
ganacial que se expresa, asi como de reconocer, ademas, con alguna cosaa
otros sobrinos, se refiere a bienes conocidos y determinados existentes
cuando tal compromisi se otorgo, y no a la universalidad de una herencia
que, sequn el art. 659 del citado Codigo civil, as determina a muerte,
constituyendola todos los bienes, derechos y obligaciones que por ella no
sehayan extinguido: ..." (Emphasis supplied.)
It will be noted that what is prohibited to be the subject matter of a contract under
Article 1271 of the Civil Code is "future inheritance." To us future inheritance is any
property or right not in existence or capable of determination at the time of the
contract, that a person may in the future acquire by succession. The properties
subject of the contract Exhibit "A" are well defined properties, existing at the time of
the agreement, which Simeon Blas declares in his statement as belonging to his

wife as her share in the conjugal partnership. Certainly his wife's actual share in the
conjugal properties may not be considered as future inheritance because they were
actually in existence at the time Exhibit "A" was executed.
The trial court held that the plaintiffs-appellants in the case at bar are concluded by
the judgement rendered in the proceedings for the settlement of the estate of
Simeon Blas for the reason that the properties left by him belonged to himself and
his wife Maxima Santos; that the project of partition in the said case, adjudicating to
Maxima Santos one-half as her share in the conjugal properties, is a bar to another
action on the same subject matter, Maxima Santos having become absolute owner
of the said properties adjudicated in her favor. As already adverted to above, these
contentions would be correct if applied to the claim of the plaintiffs-appellants that
said properties were acquired with the first wife of Simeon Blas, Marta Cruz. But the
main ground upon which plaintiffs base their present action is the document Exhibit
"A", already fully considered above. As this private document contains the express
promise made by Maxima Santos to convey in her testament, upon her death, onehalf of the conjugal properties she would receive as her share in the conjugal
properties, the action to enforce the said promise did not arise until and after her
death when it was found that she did not comply with her above-mentioned
promise. (Art. 1969, old Civil Code.) The argument that the failure of the plaintiffsappellants herein to oppose the project of partition in the settlement of the estate of
Simeon Blas, especially that portion of the project which assigned to Maxima Santos
one-half of all the conjugal properties bars their present action, is, therefore, devoid
of merit. It may be added that plaintiffs-appellants did not question the validity of
the project of partition precisely because of the promise made by Maxima Santos in
the compromise Exhibit "A"; they acquised in the approval of said project of
partition because they were relying on the promise made by Maxima Santos in
Exhibit "A", that she would transmit one-half of the conjugal properties that she was
going to receive as her share in the conjugal partnership upon her death and in her
will, to the heirs and legatees of her husband Simeon Blas.
Neither can the claim of prescription be considered in favor of the defendants. The
right of action arose at the time of the death of Maxima Santos on October 5,1956,
when she failed to comply with the promise made by her in Exhibit "A". The
plaintiffs-appellants immediately presented this action on December 27, 1956, upon
learning of such failure on the part of Maxima Santos to comply with said promise.
This defense is, therefore, also without merit.
It is next contended by the defendant-appellee that Maxima Santos complied with
her above-mentioned promise, that Andres Pascual, Tomasa Avelino, Justo Garcia,
Ludovico Pimpin and Marta Gervacio Blas were given substancial legacies in the will
and testament of Maxima Santos. To determine whether she had actually complied
with the promise made in Exhibit "A", there is herein set forth a list only of the
fishponds and their respective areas as contained in the list of properties she
acquired as her share in the conjugal partnership, which list includes, besides many
ricelands as well as residential lots, thus:

31. Paco, Obando, Bulacan

5.8396 has.

32. Pangjolo, Obando

34.
Batang
Pampanga

Pirasuan,

3.5857

Lubao,

"

11.9515

"

30.2059

"

35. Calangian, Lubao, Pampanga

215.4325

"

38. Bakuling, Lubao, Pampanga

39. Bakuling, Lubao, Pampanga

8.3763

"

23.0730

"

40. Bangkal, Sinubli

41. Tagulod,

6.8692

44. Bangkal Pugad

(a 34.2779
)

"

(b 51.7919
)

"

(c
) 2.5202

45. Magtapat
Pampanga

Bangkal,

"

Lubao, (a 18.0024
)

"

"

(b
) 7.3265

"

(c 53.5180
)

"

46.
Pinanganakan,
Pampanga

Lubao,

159.0078

47.
Emigdio
Pampanga

Lubao,

34.5229

"

80.5382

"

43.3350

"

Lingid,

"

48. Propios, Lubao, Pampanga

49. Batang Mabuanbuan, Sexmoan,

Pampanga

50.
Binatang
Mabuanbuan,
Sexmoan, Pampanga

51. Sapang
Pampanga

52.
Kay
Pampanga

Magtua,

Limpin,

Sexmoan,

3.5069

"

56,8242

"

Sexmoan,

53. Calise Mabalumbum, Sexmoan,

Pampanga

5.0130

"

23.8935

54. Messapinit Kineke, Sexmoan, (a

Pampanga
) 5.2972

"

"

(b
) 5.9230

"

(c
) 1.4638

"

(d
) 1.4638

"

(e
) 2.8316

"

10.4412

"

(f)

(g
) 3.9033

"

(h 11.9263
)

(i) 6.0574

55. Dalang,
Pampanga

Banga,

Sexmoan,

"

"

23.3989

"

147.1242

"

62. Alaminos, Pangasinan

80. Mangasu Sexmoan, Pampanga

10.000

81.

21.6435

Don

Tomas,

Sexmoan,

"

"

Pampanga

16.0000
82. Matikling, Lubao, Pampanga

Total area ...............................

"

1045.7863
"

(See Record on Record,

pp. 195-241.)

In her will, Maxima Santos devised to Marta Gervacio Blas the 80-hectare fishpond
situated in Lubao, Pampanga. The fishpond devised is evidently that designated as
"Propios" in Lubao, Pampanga, item No. 8 in the list of properties adjudicated to her
in the project of partition. (Record on Appeal, p. 215.) Considering that the total
area of the fishponds amount to 1045.7863 hectares, the 80 hectares devised to
Marta Gervacio Blas is not even one-tenth of the total area of the fishponds. Add to
this the fact that in the will she imposed upon Marta Gervacio Blas de Chivi an
existing obligation on said fishponds, namely, its lease in 1957 and the duty to pay
out of the rentals thereof an obligation to the Rehabilitation Finance Corporation
RFC (Ibid., pp. 262-263.) Angelina Blas was given only a lot of 150 square meters in
Hulong Duhat, Malabon, Rizal, and Leony Blas, the sum of P300.00 (Ibid., p. 264.)
It is evident from a consideration of the above figures and facts that Maxima Santos
did not comply with her obligation to devise one-half of her conjugal properties to
the heirs and legatees of her husband. She does not state that she had complied
with such obligation in her will. If she intended to comply therewith by giving some
of the heirs of Simeon Blas the properties mentioned above, the most that can be
considered in her favor is to deduct the value of said properties from the total
amount of properties which she had undertaken to convey upon her death.
All the issues in the pleadings of the parties and in their respective briefs, have now
been fully discussed and considered. Reiterating what we have stated above, we
declare that by Exhibit "A", a compromise to avoid litigation, Maxima Santos
promised to devise to the heirs and legatees of her husband Simeon Blas, one-half
of the properties she received as her share in the conjugal partnership of herself
and her husband, which share is specified in the project of partition submitted by
herself on March 14, 1939 in the settlement of the estate of her husband, and which
is found on pages 195 to 240 of the record on appeal and on pages 27 to 46 of the
project of partition, submitted by Maxima Santos herself before the Court of First
Instance of Rizal in Civil Case No. 6707, entitled "Testamentaria del Finado Don
Simeon Blas, Maxima Santos Vda. de Bias, Administradora"; and that she failed to
comply with her aforementioned obligation. (Exhibit "A")

WHEREFORE, the judgment appealed from is hereby reversed and the defendantappellee, administratrix of the estate of Maxima Santos, is ordered to convey and
deliver one-half of the properties adjudicated o Maxima Santos as her share in the
conjugal properties in said Civil Case No. 6707, entitled "Testamentaria del Finado
Don Simeon Blas, Maxima Santos Vda. de Blas, Administradora", to the heirs and
the legatees of her husband Simeon Blas. Considering that all said heirs and
legatees, designated in the will of Simeon Blas as the persons for whose benefit
Exhibit "A" had been executed, have not appeared in these proceedings, the record
is hereby remanded to the court below, with instructions that, after the conveyance
of the properties hereinabove ordered had been effected, the said heirs and
legatees (of Simeon Blas) file adversary pleadings to determine the participation of
each and every one of them in said properties. Costs against the defendantappellee Rosalina Santos.
Padilla,
Parades
and
Reyes,
J.B.L.
and
Barrera,
JJ., concur
Bengzon,
C.J., reserves
Concepcion, J., took no part.

in

Dizon,
JJ., concur.
a
separate
opinion.
his
vote.

Separate Opinions
REYES, J.B.L., J., concurring:
I concur in the opinion of Mr. Justice Labrador, and would only add that the doctrine
in the decision of 8 October 1915 of the Supreme Court of Spain, applied in the
main opinion, is not a mere accident nor an isolated instance, but one of a series of
decisions reaffirming the legal proposition therein laid down. Thus, the Presiding
Justice Castan of the Spanish Tribunal Supremo, in volume 3 of his Treaties on Civil
Law (1951 Edition, page 344, footnote 2), observes that:
(2) IA sentencia de 16 de mayo de 1940 declare que segun la doctrina
sentada por el Tribunal Supremo en sua fallos de 8 de Octubre de 1915 y 26
de Octubre de 1926 y por la Direction de los Registros en au resolution de 19
de mayo de 1917, la prohibition contenida en el art. 1271 se refiere unica y
exclusivamente a los paetos sobre la universalidad de una heren cia que,
segun el art. 659, se determine a la muerte del cau sante constituyendola
todos los bienes, derechos y obligaciones que por ella no se hayan extinguido
y no al pacto sobre bienes conocidos y determinados, existentes cuando tal
compromiso se otorgo, en el dominio del cedente.
And in a later decision of 25 April 1951, the Supreme Court of Spain once ore
insisted on the rule that a successional agreement concerning property already
owned by the grantor at the time the contract was perfected is not banned by,
Article 1271 of the Spanish Civil Code according to Article 1847 of the Civil Code of
the Philippines):
CONSIDERANDO: Que el tercer motive del recurso de doa M. G. G., y el sexto
del formulado por doa D. G. G., hacen roferencia a la ultima de las tres
cuestiones que son ob jato del debate en ambos recurso interpuestos esto es

la dis cutida cesion que las hermanas senoras G. G., hoy recurrentes, hicieron
a doa C. A. de la mitad de los bienes muebles e innuebles que recibiesen
por herencia de doa M. P.,procedentes de la de doa M. A. P., antes N.,
consignada en documents privado de fecha 2 de noviembre de 1929, firmado
y reconocida su autenticidad por las tres senoras interesa das, cuya validez y
eficacia es objeto de la cuarta pieza de los presentee autos acumulados y si
se examination con determiento el documento aludido y el acto que en el se
consigna habra de advertirse de modo notorio que se halla afectado de vicio
de nulidad porque su objeto son unos bienes que clara mente se petpresa
que han de entrar en el patrimonio de las cendentes mediantes una
transmission hereditaria, lo que conatituye el pacto sobre herencia futura
prohibido por el parrafo segundo del articulo 1271 del Codigo Civil, ya que no
se concreta sobre bienes conocido y determinados, existentes en el del
cedents cuando el compromiso de otorgo, sino que se refiem a la
universalidad de que habrian de adra la muerte del causante sentido en el
que conforme a la jurisprudencia de esta Sala es de plena aplicacion la norma
a tiva antes citada, y al no haberio asi entendido la Sala de instancia, ha
incurrido en la infmccion de interpreter erro to y por ello ha hecho aplicacion
de indebida de dicho precepto y precede la estimacion de los motivo que
aprincipio se citan y que denuncian la estimada infraccion, produciendo la
casacion de la sentencia recurrida en el extremo a que los dichos motives se
refieren. (Sentencia 25 abril 1951) (Emphasis Supplied)
It can thus be seen that the constant authoritative in interpretation of the
prohibition against agreements involving future inheritance requires not only that a
future succession be contemplated but also that the subject matter of the bargain
should be either the universality or complex or mass of property owned by the
grantor at the time of his death, or else an aliquot portion thereof. Castan, in his
Treaties already mentioned, sums up the rulings in this wise:
Por otra parte, se ha de entender: 1. Que la cesion oenajenacion de los
derechos hereditarios puede bacerse una vez falle cido el causante, aunque
no se haya entrado en possession matetrial de los bienes 2. Que la
prohibition legal se refiere solo a los contratos concluidos sobre la herencia
misma o alguna de sus cuotas, no sobre objetos aislados que,
eventualmente, hayan de adquirirse a virtud de la herencia.
It has been contended that the doctrine thus stated confuses future inheritance
(herencia futura) with futureproperty (bienes futuros). This is a misapprehension. In
construing the term "future inheritance" as the contingent universality or complex
of property rights and obligations that are passed to the heirs upon the death of the
grantor, the rule advocated merely correlates the prohibition against contracts over
"future inheritance" with the definition of "inheritance" given in Article 659 of the
Spanish Civil Code, which is now Article 776 of the Civil Code of the Philippines:
ART. 776. The inheritance includes all the property, rights and obligations of a
person which are not extinguished by his death.
The inheritance of a person may, and usually does, include not only property that
he already owns at a given time, but also his future property, that is to say, the

property that he may subsequently acquire. But it may include only future property
whenever he should dispose of the present property before he dies. And future
inheritance may include only property he already owns at any given moment, if he
should thereafter acquire no other property until his death. In any case, the
inheritance or estate cons of the totality of and liabilities he holds at the time of his
demise, and not what he at any other time. If the questioned contract envisages all
or a fraction of that contingent mass, then it is a contract over herencia futurall
otherwise it is not. The statutory prohibition, in other words, is not so much
concerned with the process of transfer as with the subject matter of the bargain. It
is addressed to "future inheritance", not "future succession".
Of course, it can be said that every single item of property that a man should hold
at any given instant of his life may become a part of his inheritance if he keeps it
long enough. But is that mere possibility (or even probability) sufficient to do upon a
contract over an individual item of existing property the outlaw brand of "contract
over future inheritance"? If it should ever be, then no agreement concerning present
property can escape the legal ban. No donation inter vivos, no reversionary clause,
no borrowing of money, and no alienation, not even a contract of sale (or other
contract in praisenti for that matter), with or without deferred delivery, will avoid
the reproach that it concerns or affects the grantor's "future inheritance". It is
permissible to doubt whether the law ever contemplated the sweeping away of the
entire contractual system so carefully regulated in the Code.
The restrictive interpretation given by the Spanish Supreme Court to the codal
prohibition of agreements involving future inheritance is justified not only by the
fact that the prohibition limits contractual freedom (and therefore, should not be
given extensive interpretation), but also because there is no real or substantial
difference between (1) an agreement whereby a person, for a valuable
consideration, agrees to bequeath some of the property he already owns, and (2) a
contract whereby he dispose of that property, subject to the condition that he will
be entitled to its usufruct until the time he dies. The court has repeatedly
sanctioned even donations inter vivoswherein the donor has reserved to elf the
right to enjoy the donated property for the remainder of his days, and riders the
actual transfer of on to the time of his death (Guzman vs. Ibea 67 Phil. 633; Balagui
vs Dongso, 53 Phil. 673; Laureta vs. Mata, 44 Phil. 668). Whatever objection is
raised against the effects of the first kind of contracts can be made to apply to the
second.
Mature reflection will show that where present (existing) property is the object of
the bargain, all arguments brandished against Conventions over future succession
(post mortem) are just as applicable to other contracts de praesenti with deferred
execution, the validity of which has never been questioned. Thus, the loss of the
power to bequeath the bargained property to persons of the grantor's choice, and
the awakening of the grantee's desire for the early death of the grantor (the Roman
"votum mortis captandae") in order to obtain prompt control of the contracted
goods, occur in both cases. In truth, the latter ground would bar even a contract of
life insurance in favor of a stated beneficiary. It may also be noted that since the
later part of the nineteenth century, the civilists have recognized that the progress
in social relations has rendered such objections obsolete (Puig Pea, Derecho Civil,
Vol. V, part I, 613 et seq.).

But where the contract involves the universality of the estate that will be left at a
person's death (the "herencia future" as understood by the Spanish Tribunal
Supreno), there is another reason which I believe to be the true justification for the
legal interdiction, and it is this: that if a man were to be allowed to bargain away all
the property he expects to leave behind (i.e., his estate as a whole), he would
practically remain without any incentive to practice thrift and frugality or to
conserve and invest his earnings and property. He would then be irresistibly drawn
to be a wasteful spend-thrift, a social parasite, without any regard for his future,
because whatever he leaves belong to another by virtue of his contract. The
disastrous effects upon family and society if such agreements were to be held
binding can be readily imagined. Hence, the interpretation given to Article 1271
(now Art. 1347) by the Supreme Court of Spain appears amply supported by
practical reasons, and there is no ground to deny its application.
Much emphasis has been placed on the provisions of the contract Exhibit "A" that
the widow, Maxima Santos de Blas, would execute a testament in favor of the
appellees. To me this is purely secondary, since it is merely the method selected by
the parties for carrying out the widow's agreement to convey to the appellees the
property in question without her losing its enjoyment during her natural life, and
does not affect the substance or the validity of the transaction. To ensure the
widow's possession of the property and the perception of its fruits while she was
alive the means logically selected was to return it by will, since such a conveyance
could only be operative after death. There might be a doubt as to the validity of this
arrangement if the widows promise had been purely gratuitous, because then it
could be argued that the promise involved a hybrid donation mortis causa yet
irrevocable;1 but here the obligation to return is concededly irrevocable and
supported by adequate consideration duly received in advance.
Since the agreement in the instant case did not refer to the future estate of the
widow of Blas, but only to part of her present property at the time the contract was
made; since the promise to retransfer one-half of her conjugal share was supported
by adequate consideration as shown in the main decision; since the contract
obviated protracted litigation and complicated accounting in settling the conjugal
partnership of Blas and his first (deceased) wife; and since the testament that the
widow promised to make was merely the mode chosen to perform the contract and
carry out the promised devolution of the property, being thus of secondary
importance, I can see no reason for declaring the entire arrangement violative of
the legal interdiction of contracts over future inheritance, and disappoint the
legitimate expectation held by the heirs of the first wife during all these years.

BARRERA, J., concurring:

It seems to me clear that the document Exhibit "A", basis of the action of the
plaintiffs-appellants, refers specifically to and affects solely the share of the grantor
Maxima Santos in the conjugal properties as determined and specified in the will of
her husband Simeon Blas, whose provisions, which she expressly acknowledged to
have read and understood, constitute the raison d'etre of her promise to deliver or

convey, by will, one-half of that specific share to the heirs and legatees named in
her husband's will (who are his heirs by his first marriage). Nowhere in the
document Exhibit "A" is there reference, to hereditary estate that she herself would
leave behind at the time of her own demise which legally would be her "future
inheritance." For this reason, I believe the contractual obligation assumed by
Maxima Santos in virtue of Exhibit "A" does not come within the prohibition of
Article 1271 of the Spanish Civil Code, now Article 1347 of the Civil Code of the
Philippines.
I, therefore, concur in the opinions of Justices Labrador and Reyes.

BAUTISTA ANGELO, J., dissenting:

While I agree with the theory that the document Exhibit "A" does not involve a
contract on future inheritance but a promise made by Maxima Santos to transmit
one-half of her share in the conjugal property acquired during her marriage to
Simeon Blas to the heirs and legatees of the latter, I am however of the opinion that
herein appellants have no cause of action because Maxima Santos has Substantially
complied with her promise.
It should be noted that Maxima Santos' promise to transmit is predicated on the
condition that she can freely choose and select from among the heirs and legatees
of her husband those to whom she would like to give and bequeath depending on
the respect, service and companionship that they may render to her. Her
commitment is not an absolute promise to give to all but only to whom she may
choose and select. And here this promise has been substantially complied with.
Thus, it appears that Maxima Santos selected eight such heirs and legatees
instituted in the will of her husband. Note that appellant Marta Gervacio Bias, who
has given a legacy of only P38,000.00 in the will of Simeon Blas, who was given by
her a legacy worth around P400,000.00, appellants Loida Gervacio Blas (or Luding
Blas) and Leoncio (Leony) Gervacio Blas were given a legacy of P300.00 each every
year to last during their lifetime; And Lorenzo Santos was given a legacy of two
fishponds and one-tenth of the whole residuary estate. It may be stated that
although appellant Maria Gervacio Blas was not given any legacy in Maxima Santos'
will, yet her son Simeon Dungao was given a legacy of a residential land in Tonsuya,
Malabon.
I, therefore, consider not in keeping with the nature of the pledge made by Maxima
Santos the decision of the majority in ordering her administratrix to convey and
deliver one-half of her share in the conjugal property to all the heirs and legatees of
her husband Simeon Blas, because only such heirs and legatees are entitled to
share in the property as may be selected by Maxima Santos, and this she has
already done. For these reasons, I dissent.
G.R. No. L-47799

June 13, 1941

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

ET
AL., petitioners,
vs.
IGNACIA AKUTIN AND HER CHILDREN, respondents.
Ozamiz
&
Capistrano
Gullas, Leuterio, Tanner & Laput for respondents.

for

petitioners.

MORAN, J.:
Agripino Neri y Chavez, who died on December 12, 1931, had by his first marriage
six children named Eleuterio, Agripino, Agapito, Getulia, Rosario and Celerina; and
by his second marriage with Ignacia Akutin, five children named Gracia, Godofredo,
Violeta, Estela Maria, and Emma. Getulia, daughter in the first marriage, died on
October 2, 1923, that is, a little less than eight years before the death of said
Agripino Neri y Chavez, and was survived by seven children named Remedios,
Encarnacion, Carmen, Trinidad, Luz, Alberto and Minda. In Agripino Neri's testament,
which was admitted to probate on March 21, 1932, he willed that his children by the
first marriage shall have no longer any participation in his estate, as they had
already received their corresponding shares during his lifetime. At the hearing for
the declaration of heirs, the trial court found, contrary to what the testator had
declared in his will, that all his children by the first and second marriages intestate
heirs of the deceased without prejudice to one-half of the improvements introduced
in the properties during the existence of the last conjugal partnership, which should
belong to Ignacia Akutin. The Court of Appeals affirmed the trial court's decision
with the modification that the will was "valid with respect to the two-thirds part
which the testator could freely dispose of. "This judgment of the Court of Appeals is
now sought to be reviewed in this petition for certiorari.
The decisive question here raised is whether, upon the foregoing facts, the omission
of the children of the first marriage annuls the institution of the children of the
second marriage as sole heirs of the testator, or whether the will may be held valid,
at least with respect to one-third of the estate which the testator may dispose of as
legacy and to the other one-third which he may bequeath as betterment, to said
children of the second marriage.
The Court of Appeals invoked the provisions of article 851 of the Civil Code, which
read in part as follows:
Disinheritance made without a statement of the cause, or for a cause the
truth of which, if contradicted, is not proven, ... shall annul the institution of
the heir in so far as it prejudices the person disinherited; but the legacies,
betterments, and other testamentary dispositions, in so far as they do no
encroach upon the legitime, shall be valid.
The appellate court thus seemed to have rested its judgment upon the impression
that the testator had intended to disinherit, though ineffectively, the children of the

first marriage. There is nothing in the will that supports this conclusion. True, the
testator expressly denied them any share in his estate; but the denial was
predicated, not upon the desire to disinherit, but upon the belief, mistaken though it
was, that the children by the first marriage had already received more than their
corresponding shares in his lifetime in the form of advancement. Such belief
conclusively negatives all inference as to any intention to disinherit, unless his
statement to that effect is prove to be deliberately fictitious, a fact not found by the
Court of Appeals. The situation contemplated in the above provision is one in which
the purpose to disinherit is clear, but upon a cause not stated or not proved, a
situation which does not obtain in the instant case.
The Court of Appeals quotes Manresa thus:
En el terreno de los principios, la solucion mas justa del problema que hemos
hecho notar al comentar el articulo, seria distinguir el caso en que el
heredero omitido viviese al otorgarse el testamento, siendo conocida su
existencia por el testador, de aquel en que, o naciese despues, o se ignorase
su existencia, aplicando en el primer caso la doctrina del articulo 851, y en el
segundo la del 814. (6 Manresa, 354-355.)
But it must be observed that this opinion is founded on mere principles (en el
terreno de los principios) and not on the express provisions of the law. Manresa
himself admits that according to law, "no existe hoy cuestion alguna en esta
materia: la pretericion produce siempre los mismos efectos, ya se refiera a personas
vivas al hacer el testamento o nacidas despues. Este ultimo grupo solo puede hacer
relacion a los descendientes legitimos, siempre que ademas tengan derecho a
legitima." (6 Manresa, 381.)
Appellants, on the other hand, maintain that the case is one of voluntary preterition
of four of the children by the first marriage, and of involuntary preterition of the
children by the deceased Getulia, also of the first marriage, and is thus governed by
the provisions of article 814 of the Civil Code, which read in part as follows:
The preterition of one or all of the forced heirs in the direct line, whether
living at the time of the execution of the will or born after the death of the
testator, shall void the institution of heir; but the legacies and betterments
shall be valid, in so far as they are not inofficious.
Preterition consists in the omission in the testator's will of the forced heirs or
anyone of them, either because they are not mentioned therein, or, though
mentioned, they are neither instituted as heirs nor are expressly disinherited.(Cf. 6
Manresa, 346.) In the instant case, while the children of the first marriage were
mentioned in the will, they were not accorded any share in the heriditary property,
without expressly being disinherited. It is, therefore, a clear case of preterition as
contended by appellants. The omission of the forced heirs or anyone of them,
whether voluntary or involuntary, is a preterition if the purpose to disinherit is not
expressly made or is not at least manifest.

Except as to "legacies and betterments" which "shall be valid in so far as they are
not inofficious" (art. 814 of the Civil Code), preterition avoids the institution of heirs
and gives rise to intestate succession. (Art. 814, Civil Code; Decisions of the
Supreme Court of Spain of June 17, 1908 and February 27, 1909.) In the instant
case, no such legacies or betterments have been made by the testator. "Mejoras" or
betterments must be expressly provided, according to articles 825 and 828 of the
Civil Code, and where no express provision therefor is made in the will, the law
would presume that the testator had no intention to that effect. (Cf. 6 Manresa,
479.) In the will here in question, no express betterment is made in favor of the
children by the second marriage; neither is there any legacy expressly made in their
behalf consisting of the third available for free disposal. The whole inheritance is
accorded the heirs by the second marriage upon the mistaken belief that the heirs
by the first marriage have already received their shares. Were it not for this
mistake, the testator's intention, as may be clearly inferred from his will, would have
been to divide his property equally among all his children.
Judgment of the Court of Appeals is reversed and that of the trial court affirmed,
without prejudice to the widow's legal usufruct, with costs against respondents.
Avancea, C.J., Diaz, Laurel and Horrilleno, JJ., concur.
DY YIENG SEANGIO, G.R. Nos. 140371-72
BARBARA D. SEANGIO
and VIRGINIA D. SEANGIO,
Petitioners, Present:
PUNO, J., Chairperson,
versus - SANDOVAL-GUTIERREZ,
CORONA,
AZCUNA, and
HON. AMOR A. REYES, in her GARCIA, JJ.
capacity as Presiding Judge,
Regional Trial Court, National
Capital Judicial Region, Branch 21,
Manila, ALFREDO D. SEANGIO,
ALBERTO D. SEANGIO, ELISA D. Promulgated:
SEANGIO-SANTOS, VICTOR D.
SEANGIO, ALFONSO D. SEANGIO,
SHIRLEY D. SEANGIO-LIM, November 27, 2006
BETTY D. SEANGIO-OBAS and
JAMES D. SEANGIO,
Respondents.
x ---------------------------------------------------------------------------------------- x
DECISION
AZCUNA, J.:

This is a petition for certiorari[1] with application for the issuance of a writ of
preliminary injunction and/or temporary restraining order seeking the nullification of
the orders, dated August 10, 1999 and October 14, 1999, of the Regional Trial Court
of Manila, Branch 21 (the RTC), dismissing the petition for probate on the ground of
preterition, in the consolidated cases, docketed as SP. Proc. No. 98-90870 and SP.
Proc. No. 99-93396, and entitled, In the Matter of the Intestate Estate of Segundo C.
Seangio v. Alfredo D. Seangio, et al. and In the Matter of the Probate of the Will of
Segundo C. Seangio v. Dy Yieng Seangio, Barbara D. Seangio and Virginia Seangio.
The facts of the cases are as follows:
On September 21, 1988, private respondents filed a petition for the settlement of
the intestate estate of the late Segundo Seangio, docketed as Sp. Proc. No. 9890870
of the RTC, and praying for the appointment of private respondent Elisa D.
SeangioSantos as special administrator and guardian ad litem of petitioner Dy Yieng
Seangio.
Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed
the petition. They contended that: 1) Dy Yieng is still very healthy and in full
command of her faculties; 2) the deceased Segundo executed a general power of
attorney in favor of Virginia giving her the power to manage and exercise control
and supervision over his business in the Philippines; 3) Virginia is the most
competent and qualified to serve as the administrator of the estate of Segundo
because she is a certified public accountant; and, 4) Segundo left a holographic will,
dated September 20, 1995, disinheriting one of the private respondents, Alfredo
Seangio, for cause. In view of the purported holographic will, petitioners averred
that in the event the decedent is found to have left a will, the intestate proceedings
are to be automatically suspended and replaced by the proceedings for the probate
of the will.
On April 7, 1999, a petition for the probate of the holographic will of Segundo,
docketed as SP. Proc. No. 9993396, was filed by petitioners before the RTC. They
likewise reiterated that the probate proceedings should take precedence over SP.
Proc. No. 9890870 because testate proceedings take precedence and enjoy priority
over intestate proceedings.[2]

The document that petitioners refer to as Segundos holographic will is quoted, as

follows:
Kasulatan sa pag-aalis ng mana
Tantunin ng sinuman
Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A
Flores St., Ermita, Manila at nagtatalay ng maiwanag na pag-iisip at
disposisyon ay tahasan at hayagang inaalisan ko ng lahatat anumang
mana ang paganay kong anak na si Alfredo Seangio dahil siya ay
naging lapastangan sa akin at isan beses siya ng sasalita ng masama
harapan ko at mga kapatid niya na si Virginia Seangio labis kong
kinasama ng loob ko at sasabe rin ni Alfredo sa akin na ako nasa
ibabaw gayon gunit daratin ang araw na ako nasa ilalim siya at siya
nasa ibabaw.
Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin pagalan
para makapagutang na kuarta siya at kanya asawa na si Merna de los
Reyes sa China Bangking Corporation na millon pesos at hindi ng
babayad at hindi ng babayad ito ay nagdulot sa aking ng malaking
kahihiya sa mga may-ari at stockholders ng China Banking.
At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na
mga custome[r] ng Travel Center of the Philippines na pinagasiwaan ko
at ng anak ko si Virginia.
Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak ko
at hayanan kong inaalisan ng lahat at anoman mana na si Alfredo at si
Alfredo Seangio ay hindi ko siya anak at hindi siya makoha mana.
Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod
ng Manila sa harap ng tatlong saksi. [3]
(signed)
Segundo Seangio
Nilagdaan sa harap namin
(signed)
Dy Yieng Seangio (signed)
Unang Saksi ikalawang saksi
(signed)
ikatlong saksi

On May 29, 1999, upon petitioners motion, SP. Proc. No. 9890870 and SP. Proc. No.
9993396 were consolidated.[4]
On July 1, 1999, private respondents moved for the dismissal of the probate
proceedings[5] primarily on the ground that the document purporting to be the

holographic will of Segundo does not contain any disposition of the estate of the
deceased and thus does not meet the definition of a will under Article 783 of the
Civil Code. According to private respondents, the will only shows an alleged act of
disinheritance by the decedent of his eldest son, Alfredo, and nothing else; that all
other compulsory heirs were not named nor instituted as heir, devisee or legatee,
hence, there is preterition which would result to intestacy. Such being the case,
private respondents maintained that while procedurally the court is called upon to
rule only on the extrinsic validity of the will, it is not barred from delving into the
intrinsic validity of the same, and ordering the dismissal of the petition for probate
when on the face of the will it is clear that it contains no testamentary disposition of
the property of the decedent.
Petitioners filed their opposition to the motion to dismiss contending that: 1)
generally, the authority of the probate court is limited only to a determination of the
extrinsic validity of the will; 2) private respondents question the intrinsic and not the
extrinsic validity of the will; 3) disinheritance constitutes a disposition of the estate
of a decedent; and, 4) the rule on preterition does not apply because Segundos will
does not constitute a universal heir or heirs to the exclusion of one or more
compulsory heirs.[6]
On August 10, 1999, the RTC issued its assailed order, dismissing the petition
for probate proceedings:
A perusal of the document termed as will by oppositors/petitioners Dy
Yieng Seangio, et al., clearly shows that there is preterition, as the only
heirs mentioned thereat are Alfredo and Virginia. [T]he other heirs
being omitted, Article 854 of the New Civil Code thus applies. However,
insofar as the widow Dy Yieng Seangio is concerned, Article 854 does
not apply, she not being a compulsory heir in the direct line.
As such, this Court is bound to dismiss this petition, for to do otherwise
would amount to an abuse of discretion. The Supreme Court in the
case of Acain v. Intermediate Appellate Court [155 SCRA 100 (1987)]
has made its position clear: for respondents to have tolerated the
probate of the will and allowed the case to progress when, on its face,
the will appears to be intrinsically void would have been an exercise in
futility. It would have meant a waste of time, effort, expense, plus
added futility. The trial court could have denied its probate outright or
could have passed upon the intrinsic validity of the testamentary
provisions before the extrinsic validity of the will was
resolved (underscoring supplied).
WHEREFORE, premises considered, the Motion to Suspend Proceedings
is hereby DENIED for lack of merit. Special Proceedings No. 9993396 is
hereby DISMISSED without pronouncement as to costs.
SO ORDERED.[7]

Petitioners motion for reconsideration was denied by the RTC in its order
dated October 14, 1999.
Petitioners contend that:
THE RESPONDENT JUDGE ACTED IN EXCESS OF HER JURISDICTION OR
WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTIONAND DECIDED A QUESTION OF LAW NOT IN ACCORD
WITH LAW AND JURISPRUDENCE IN ISSUING THE QUESTIONED
ORDERS, DATED 10 AUGUST 1999 AND 14 OCTOBER 1999
(ATTACHMENTS A AND B HEREOF) CONSIDERING THAT:
I
THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING WITH SECTIONS
3 AND 4 OF RULE 76 OF THE RULES OF COURT ON THE PROPER
PROCEDURE FOR SETTING THE CASE FOR INITIAL HEARING FOR THE
ESTABLISHMENT OF THE JURISDICTIONAL FACTS, DISMISSED THE
TESTATE CASE ON THE ALLEGED GROUND THAT THE TESTATORS WILL
IS VOID ALLEGEDLY BECAUSE OF THE EXISTENCE OF PRETERITION,
WHICH GOES INTO THE INTRINSIC VALIDITY OF THE WILL, DESPITE THE
FACT THAT IT IS A SETTLED RULE THAT THE AUTHORITY OF PROBATE
COURTS IS LIMITED ONLY TO A DETERMINATION OF THE EXTRINSIC
VALIDITY OF THE WILL, I.E., THE DUE EXECUTION THEREOF, THE
TESTATORS TESTAMENTARY CAPACITY AND THE COMPLIANCE WITH THE
REQUISITES OR SOLEMNITIES PRESCRIBED BY LAW;
II
EVEN ASSUMING ARGUENDO THAT THE RESPONDENT JUDGE HAS
THE AUTHORITY TO RULE UPON THE INTRINSIC VALIDITY OF THE WILL
OF THE TESTATOR, IT IS INDUBITABLE FROM THE FACE OF THE
TESTATORS WILL THAT NO PRETERITON EXISTS AND THAT THE WILL IS
BOTH INTRINSICALLY AND EXTRINSICALLY VALID; AND,
III
RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE
PROCEEDINGS IN THE INTESTATE CASE CONSIDERING THAT IT IS A
SETTLED RULE THAT TESTATE PROCEEDINGS TAKE PRECEDENCE OVER
INTESTATE PROCEEDINGS.
Petitioners argue, as follows:
First, respondent judge did not comply with Sections 3 and 4 of Rule 76 of the Rules
of Court which respectively mandate the court to: a) fix the time and place for
proving the will when all concerned may appear to contest the allowance thereof,
and cause notice of such time and place to be published three weeks successively
previous to the appointed time in a newspaper of general circulation; and, b) cause

the mailing of said notice to the heirs, legatees and devisees of the testator
Segundo;
Second, the holographic will does not contain any institution of an heir, but rather,
as its title clearly states, Kasulatan ng Pag-Aalis ng Mana, simply contains a
disinheritance of a compulsory heir. Thus, there is no preterition in the decedents
will and the holographic will on its face is not intrinsically void;
Third, the testator intended all his compulsory heirs, petitioners and private
respondents alike, with the sole exception of Alfredo, to inherit his estate. None of
the compulsory heirs in the direct line of Segundo were preterited in the holographic
will since there was no institution of an heir;
Fourth, inasmuch as it clearly appears from the face of the holographic will that it is
both intrinsically and extrinsically valid, respondent judge was mandated to proceed
with the hearing of the testate case; and,
Lastly, the continuation of the proceedings in the intestate case will work injustice
to petitioners, and will render nugatory the disinheritance of Alfredo.
The purported holographic will of Segundo that was presented by petitioners was
dated, signed and written by him in his own handwriting. Except on the ground of
preterition, private respondents did not raise any issue as regards the authenticity
of the document.
The document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably showed
Segundos intention of excluding his eldest son, Alfredo, as an heir to his estate for
the reasons that he cited therein. In effect, Alfredo was disinherited by Segundo.
For disinheritance to be valid, Article 916 of the Civil Code requires that the same
must be effected through a will wherein the legal cause therefor shall be specified.
With regard to the reasons for the disinheritance that were stated by Segundo in his
document, the Court believes that the incidents, taken as a whole, can be
considered a form of maltreatment of Segundo by his son, Alfredo, and that the
matter presents a sufficient cause for the disinheritance of a child or descendant
under Article 919 of the Civil Code:

Article 919. The following shall be sufficient causes for the

disinheritance of children and descendants, legitimate as well as
illegitimate:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)

When a child or descendant has been found guilty of an

attempt against the life of the testator, his or her spouse,
descendants, or ascendants;
When a child or descendant has accused the testator of a
crime for which the law prescribes imprisonment for six years or
more, if the accusation has been found groundless;
When a child or descendant has been convicted of
adultery or concubinage with the spouse of the testator;
When a child or descendant by fraud, violence,
intimidation, or undue influence causes the testator to make a
will or to change one already made;
A refusal without justifiable cause to support the parents
or ascendant who disinherit such child or descendant;
Maltreatment of the testator by word or deed, by the child
or descendant;[8]
When a child or descendant leads a dishonorable or
disgraceful life;
Conviction of a crime which carries with it the penalty of
civil interdiction.

Now, the critical issue to be determined is whether the document executed by

Segundo can be considered as a holographic will.
A holographic will, as provided under Article 810 of the Civil Code, 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.
Segundos document, although it may initially come across as a mere disinheritance
instrument, conforms to the formalities of a holographic will prescribed by law. It is
written, dated and signed by the hand of Segundo himself. An intent to
dispose mortis causa[9] can be clearly deduced from the terms of the instrument,
and while it does not make an affirmative disposition of the latters property, the
disinheritance of Alfredo, nonetheless, is an act of disposition in itself. In other
words, the disinheritance results in the disposition of the property of the testator
Segundo in favor of those who would succeed in the absence of Alfredo. [10]

Moreover, it is a fundamental principle that the intent or the will of the testator,
expressed in the form and within the limits prescribed by law, must be recognized
as the supreme law in succession. All rules of construction are designed to ascertain
and give effect to that intention. It is only when the intention of the testator is
contrary to law, morals, or public policy that it cannot be given effect. [11]
Holographic wills, therefore, being usually prepared by one who is not learned in the
law, as illustrated in the present case, should be construed more liberally than the
ones drawn by an expert, taking into account the circumstances surrounding the
execution of the instrument and the intention of the testator. [12] In this regard, the
Court is convinced that the document, even if captioned as Kasulatan ng Pag-Aalis
ng Mana, was intended by Segundo to be his last testamentary act and was
executed by him in accordance with law in the form of a holographic will. Unless the
will is probated,[13] the disinheritance cannot be given effect. [14]

With regard to the issue on preterition, [15] the Court believes that the
compulsory heirs in the direct line were not preterited in the will. It was, in the
Courts opinion, Segundos last expression to bequeath his estate to all his
compulsory heirs, with the sole exception of Alfredo. Also, Segundo did not institute
an heir[16] to the exclusion of his other compulsory heirs. The mere mention of the
name of one of the petitioners, Virginia, in the document did not operate to institute
her as the universal heir. Her name was included plainly as a witness to the
altercation between Segundo and his son, Alfredo.
Considering that the questioned document is Segundos holographic will, and that
the law favors testacy over intestacy, the probate of the will cannot be dispensed
with. Article 838 of the Civil Code provides that no will shall pass either real or
personal property unless it is proved and allowed in accordance with the Rules of
Court. Thus, unless the will is probated, the right of a person to dispose of his
property may be rendered nugatory.[17]
In view of the foregoing, the trial court, therefore, should have allowed the
holographic will to be probated. It is settled that testate proceedings for the
settlement of the estate of the decedent take precedence over intestate
proceedings for the same purpose.[18]
WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court of
Manila, Branch 21, dated August 10, 1999 and October 14, 1999, are set aside.
Respondent judge is directed to reinstate and hear SP Proc. No. 99-93396 for the
allowance of the holographic will of Segundo Seangio. The intestate case or SP. Proc.
No. 98-90870 is hereby suspended until the termination of the aforesaid testate
proceedings.
No costs.
SO ORDERED.

G.R. No. L-24561 June 30, 1970

MARINA
DIZON-RIVERA, executrix-appellee,
vs.
ESTELA DIZON, TOMAS V. DIZON, BERNARDITA DIZON, JOSEFINA DIZON,
ANGELINA DIZON and LILIA DIZON, oppositors-appellants.
Punzalan, Yabut & Eusebio for executrix-appellee.

Leonardo Abola for oppositors-appellants.

TEEHANKEE, J.:
Appeal from orders of the Court of First Instance of Pampanga approving the
Executrix-appellee's project of partition instead of Oppositors-Appellants' proposed
counter-project of partition. 1
On January 28, 1961, the testatrix, Agripina J. Valdez, a widow, died in Angeles,
Pampanga, and was survived by seven compulsory heirs, to wit, six legitimate
children named Estela Dizon, Tomas V. Dizon, Bernardita Dizon, Marina Dizon (herein
executrix-appellee), Angelina Dizon and Josefina Dizon, and a legitimate
granddaughter named Lilia Dizon, who is the only legitimate child and heir of
Ramon Dizon, a pre-deceased legitimate son of the said decedent. Six of these
seven compulsory heirs (except Marina Dizon, the executrix-appellee) are the
oppositors-appellants.
The deceased testatrix left a last will executed on February 2, 1960 and written in
the Pampango dialect. Named beneficiaries in her will were the above-named
compulsory heirs, together with seven other legitimate grandchildren, namely Pablo
Rivera, Jr., Gilbert D. Garcia, Cayetano Dizon, Francisco Rivera, Agripina Ayson, Jolly
Jimenez and Laureano Tiambon.
In her will, the testatrix divided, distributed and disposed of all her properties
appraised at P1,801,960.00 (except two small parcels of land appraised at
P5,849.60, household furniture valued at P2,500.00, a bank deposit in the sum of
P409.95 and ten shares of Pampanga Sugar Development Company valued at
P350.00) among her above-named heirs.
Testate proceedings were in due course commenced 2 and by order dated March 13,
1961, the last will and testament of the decedent was duly allowed and admitted to
probate, and the appellee Marina Dizon-Rivera was appointed executrix of the
testatrix' estate, and upon her filing her bond and oath of office, letters
testamentary were duly issued to her.
After the executrix filed her inventory of the estate, Dr. Adelaido Bernardo of
Angeles, Pampanga was appointed commissioner to appraise the properties of the
estate. He filed in due course his report of appraisal and the same was approved in
toto by the lower court on December 12, 1963 upon joint petition of the parties.
The real and personal properties of the testatrix at the time of her death thus had a
total appraised value of P1,811,695.60, and the legitime of each of the seven
compulsory heirs amounted to P129,362.11. 3 (/7 of the half of the estate reserved
for the legitime of legitimate children and descendants). 4 In her will, the testatrix
"commanded that her property be divided" in accordance with her testamentary

disposition, whereby she devised and bequeathed specific real properties

comprising practically the entire bulk of her estate among her six children and eight
grandchildren. The appraised values of the real properties thus respectively devised
by the testatrix to the beneficiaries named in her will, are as follows:
1.
Estela
Dizon
.......................................
P
98,474.80
2.
Angelina
Dizon
..................................
106,307.06
3.
Bernardita
Dizon
..................................
51,968.17
4.
Josefina
Dizon
......................................
52,056.39
5.
Tomas
Dizon
.......................................
131,987.41
6.
Lilia
Dizon
..............................................
72,182.47
7.
Marina
Dizon
.....................................
1,148,063.71
8.
Pablo
Rivera,
Jr.
......................................
69,280.00
9.
Lilia
Dizon,
Gilbert
Garcia,
Cayetano
Dizon,
Francisco
Rivera,
Agripina
Ayson,
Dioli
or
Jolly
Jimenez,
Laureano
Tiamzon
................. 72,540.00
Total Value ...................... P1,801,960.01
The executrix filed her project of partition dated February 5, 1964, in substance
adjudicating the estate as follows:
(1) with the figure of P129,254.96 as legitime for a basis Marina
(exacultrix-appellee) and Tomas (appellant) are admittedly considered
to have received in the will more than their respective legitime, while
the rest of the appellants, namely, Estela, Bernardita, Angelina,
Josefina and Lilia received less than their respective legitime;
(2) thus, to each of the latter are adjudicated the properties
respectively given them in the will, plus cash and/or properties, to
complete their respective legitimes to P129,254.96; (3) on the other
hand, Marina and Tomas are adjudicated the properties that they
received in the will less the cash and/or properties necessary to
complete the prejudiced legitime mentioned in number 2 above;
(4) the adjudications made in the will in favor of the grandchildren
remain untouched.<re||an1w>
On the other hand oppositors submitted their own counter-project of
partition dated February 14, 1964, wherein they proposed the
distribution of the estate on the following basis:
(a) all the testamentary dispositions were proportionally reduced to the
value of one-half () of the entire estate, the value of the said one-half
() amounting to P905,534.78; (b) the shares of the OppositorsAppellants should consist of their legitime, plus the devises in their
favor proportionally reduced; (c) in payment of the total shares of the

appellants in the entire estate, the properties devised to them plus

other properties left by the Testatrix and/or cash are adjudicated to
them; and (d) to the grandchildren who are not compulsory heirs are
adjudicated the properties respectively devised to them subject to
reimbursement by Gilbert D. Garcia, et al., of the sums by which the
devise in their favor should be proportionally reduced.
Under the oppositors' counter-project of partition, the testamentary disposition
made by the testatrix of practically her whole estate of P1,801,960.01, as above
stated, were proposed to be reduced to the amounts set forth after the names of
the respective heirs and devisees totalling one-half thereof as follows:
1.
Estela
Dizon
...........................................
P
2.
Angelina
Dizon
.........................................
3.
Bernardita
Dizon
.......................................
4.
Josefina
Dizon
..........................................
5.
Tomas
V.
Dizon
.........................................
6.
Lilia
Dizon
..................................................
7.
Marina
Dizon
...........................................
8.
Pablo
Rivera,
Jr.
.........................................
9. Grandchildren Gilbert Garcia et al .......... 36,452.80

49,485.56
53,421.42
26,115.04
26,159.38
65,874.04
36,273.13
576,938.82
34,814.50

T o t a l ................................................... P905,534.78
while the other half of the estate (P905,534.78) would be deemed as constituting
the legitime of the executrix-appellee and oppositors-appellants, to be divided
among them in seven equal parts of P129,362.11 as their respective legitimes.
The lower court, after hearing, sustained and approved the executrix' project of
partition, ruling that "(A)rticles 906 and 907 of the New Civil Code specifically
provide that when the legitime is impaired or prejudiced, the same shall be
completed and satisfied. While it is true that this process has been followed and
adhered to in the two projects of partition, it is observed that the executrix and the
oppositors differ in respect to the source from which the portion or portions shall be
taken in order to fully restore the impaired legitime. The proposition of the
oppositors, if upheld, will substantially result in a distribution of intestacy, which is
in controversion of Article 791 of the New Civil Code" adding that "the testatrix has
chosen to favor certain heirs in her will for reasons of her own, cannot be doubted.
This is legally permissible within the limitation of the law, as aforecited." With
reference to the payment in cash of some P230,552.38, principally by the executrix
as the largest beneficiary of the will to be paid to her five co-heirs, the oppositors
(excluding Tomas Dizon), to complete their impaired legitimes, the lower court ruled
that "(T)he payment in cash so as to make the proper adjustment to meet with the
requirements of the law in respect to legitimes which have been impaired is, in our
opinion, a practical and valid solution in order to give effect to the last wishes of the
testatrix."

From the lower court's orders of approval, oppositors-appellants have filed this
appeal, and raise anew the following issues: .
1. Whether or not the testamentary dispositions made in the testatrix' will are in the
nature of devises imputable to the free portion of her estate, and therefore subject
to reduction;
2. Whether the appellants are entitled to the devise plus their legitime under Article
1063, or merely to demand completion of their legitime under Article 906 of the
Civil Code; and
3. Whether the appellants may be compelled to accept payment in cash on account
of their legitime, instead of some of the real properties left by the Testatrix;
which were adversely decided against them in the proceedings below.
The issues raised present a matter of determining the avowed intention of the
testatrix which is "the life and soul of a will." 5 In consonance therewith, our Civil
Code included the new provisions found in Articles 788 and 791 thereof that "(I)f a
testamentary disposition admits of different interpretations, in case of doubt, that
interpretation by which the disposition is to be operative shall be preferred" and
"(T)he words of a will are to receive an interpretation which will give to every
expression some effect, rather than one which will render any of the expressions
inoperative; and of two modes of interpreting a will, that is to be preferred which
will prevent intestacy." In Villanueva vs. Juico 6 for violation of these rules of
interpretation as well as of Rule 123, section 59 of the old Rules of Court, 7 the
Court, speaking through Mr. Justice J.B.L. Reyes, overturned the lower court's
decision and stressed that "the intention and wishes of the testator, when clearly
expressed in his will, constitute the fixed law of interpretation, and all questions
raised at the trial, relative to its execution and fulfillment, must be settled in
accordance therewith, following the plain and literal meaning of the testator's
words, unless it clearlyappears that his intention was otherwise." 8
The testator's wishes and intention constitute the first and principal law in the
matter of testaments, and to paraphrase an early decision of the Supreme Court of
Spain, 9 when expressed clearly and precisely in his last will amount to the only law
whose mandate must imperatively be faithfully obeyed and complied with by his
executors, heirs and devisees and legatees, and neither these interested parties nor
the courts may substitute their own criterion for the testator's will. Guided and
restricted by these fundamental premises, the Court finds for the appellee.
1. Decisive of the issues at bar is the fact that the testatrix' testamentary
disposition was in the nature of a partition of her estate by will. Thus, in the third
paragraph of her will, after commanding that upon her death all her obligations as
well as the expenses of her last illness and funeral and the expenses for probate of
her last will and for the administration of her property in accordance with law, be
paid, she expressly provided that "it is my wish and I command that my property be

divided" in accordance with the dispositions immediately thereafter following,

whereby she specified each real property in her estate and designated the
particular heir among her seven compulsory heirs and seven other grandchildren to
whom she bequeathed the same. This was a valid partition 10of her estate, as
contemplated and authorized in the first paragraph of Article 1080 of the Civil Code,
providing that "(S)hould a person make a partition of his estate by an act inter
vivos or by will, such partition shall be respected, insofar as it does not prejudice
the legitime of the compulsory heirs." This right of a testator to partition his estate
is subject only to the right of compulsory heirs to their legitime. The Civil Code thus
provides the safeguard for the right of such compulsory heirs:
ART. 906. Any compulsory heir to whom the testator has left by any
title less than the legitime belonging to him may demand that the
same be fully satisfied.
ART. 907. Testamentary dispositions that impair or diminish the
legitime of the compulsory heirs shall be reduced on petition of the
same, insofar as they may be inofficious or excessive.
This was properly complied with in the executrix-appellee's project of
partition, wherein the five oppositors-appellants namely Estela,
Bernardita, Angelina, Josefina and Lilia, were adjudicated the properties
respectively distributed and assigned to them by the testatrix in her
will, and the differential to complete their respective legitimes of
P129,362.11 each were taken from the cash and/or properties of the
executrix-appellee, Marina, and their co-oppositor-appellant, Tomas,
who admittedly were favored by the testatrix and received in the
partition by will more than their respective legitimes.
2. This right of a testator to partition his estate by will was recognized even in
Article 1056 of the old Civil Code which has been reproduced now as Article 1080 of
the present Civil Code. The only amendment in the provision was that Article 1080
"now permits any person (not a testator, as under the old law) to partition his estate
by actinter vivos." 11 This was intended to repeal the then prevailing doctrine 12 that
for a testator to partition his estate by an actinter vivos, he must first make a will
with all the formalities provided by law. Authoritative commentators doubt the
efficacy of the amendment 13 but the question does not here concern us, for this is a
clear case of partition by will, duly admitted to probate, which perforce must be
given full validity and effect. Aside from the provisions of Articles 906 and 907
above quoted, other codal provisions support the executrix-appellee's project of
partition as approved by the lower court rather than the counter-project of partition
proposed by oppositors-appellants whereby they would reduce the testamentary
disposition or partition made by the testatrix to one-half and limit the same, which
they would consider as mere devises or legacies, to one-half of the estate as the
disposable free portion, and apply the other half of the estate to payment of the
legitimes of the seven compulsory heirs. Oppositors' proposal would amount
substantially to a distribution by intestacy and pro tanto nullify the testatrix' will,

contrary to Article 791 of the Civil Code. It would further run counter to the
provisions of Article 1091 of the Civil Code that "(A) partition legally made confers
upon each heir the exclusive ownership of the property adjudicated to him."
3. In Habana vs. Imbo, 14 the Court upheld the distribution made in the will of the
deceased testator Pedro Teves of two large coconut plantations in favor of his
daughter, Concepcion, as against adverse claims of other compulsory heirs, as
being a partition by will, which should be respected insofar as it does not prejudice
the legitime of the compulsory heirs, in accordance with Article 1080 of the Civil
Code. In upholding the sale made by Concepcion to a stranger of the plantations
thus partitioned in her favor in the deceased's will which was being questioned by
the other compulsory heirs, the Court ruled that "Concepcion Teves by operation of
law, became the absolute owner of said lots because 'A partition legally made
confers upon each heir the exclusive ownership of the property adjudicated to him'
(Article 1091, New Civil Code), from the death of her ancestors, subject to rights
and obligations of the latter, and, she can not be deprived of her rights thereto
except by the methods provided for by law (Arts. 657, 659, and 661, Civil
Code). 15 Concepcion Teves could, as she did, sell the lots in question as part of her
share of the proposed partition of the properties, especially when, as in the present
case, the sale has been expressly recognized by herself and her co-heirs ..."
4. The burden of oppositors' contention is that the testamentary dispositions in their
favor are in the nature of devises of real property, citing the testatrix' repeated use
of the words "I bequeath" in her assignment or distribution of her real properties to
the respective heirs. From this erroneous premise, they proceed to the equally
erroneous conclusion that "the legitime of the compulsory heirs passes to them by
operation of law and that the testator can only dispose of the free portion, that is,
the remainder of the estate after deducting the legitime of the compulsory heirs ...
and all testamentary dispositions, either in the nature of institution of heirs or of
devises or legacies, have to be taken from the remainder of the testator's estate
constituting the free portion." 16
Oppositors err in their premises, for the adjudications and assignments in the
testatrix' will of specific properties to specific heirs cannot be considered all devises,
for it clearly appear from the whole context of the will and the disposition by the
testatrix of her whole estate (save for some small properties of little value already
noted at the beginning of this opinion) that her clear intention was to partition her
whole estate through her will. The repeated use of the words "I bequeath" in her
testamentary dispositions acquire no legal significance, such as to convert the same
into devises to be taken solely from the free one-half disposable portion of the
estate. Furthermore, the testatrix' intent that her testamentary dispositions were by
way of adjudications to the beneficiaries as heirs and not as mere devisees, and
that said dispositions were therefore on account of the respective legitimes of the
compulsory heirs is expressly borne out in the fourth paragraph of her will,
immediately following her testamentary adjudications in the third paragraph in this
wise: "FOURTH: I likewise command that in case any of those I named as my heirs in
this testament any of them shall die before I do, his forced heirs under the law

enforced at the time of my death shall inherit the properties I bequeath to said
deceased." 17
Oppositors' conclusions necessarily are in error. The testamentary dispositions of
the testatrix, being dispositions in favor of compulsory heirs, do not have to be
taken only from the free portion of the estate, as contended, for the second
paragraph of Article 842 of the Civil Code precisely provides that "(O)ne who has
compulsory heirs may dispose of his estate provided he does not contravene the
provisions of this Code with regard to the legitime of said heirs." And even going by
oppositors' own theory of bequests, the second paragraph of Article 912 Civil Code
covers precisely the case of the executrix-appellee, who admittedly was favored by
the testatrix with the large bulk of her estate in providing that "(T)he devisee who is
entitled to a legitime may retain the entire property, provided its value does not
exceed that of the disposable portion and of the share pertaining to him as
legitime." For "diversity of apportionment is the usual reason for making a
testament; otherwise, the decedent might as well die intestate." 18 Fundamentally,
of course, the dispositions by the testatrix constituted a partition by will, which by
mandate of Article 1080 of the Civil Code and of the other cited codal provisions
upholding the primacy of the testator's last will and testament, have to be
respected insofar as they do not prejudice the legitime of the other compulsory
heirs.
Oppositors' invoking of Article 1063 of the Civil Code that "(P)roperty left by will is
not deemed subject to collation, if the testator has not otherwise provided, but the
legitime shall in any case remain unimpaired" and invoking of the construction
thereof given by some authorities that "'not deemed subject to collation' in this
article really means not imputable to or chargeable against the legitime", while it
may have some plausibility 19 in an appropriate case, has no application in the
present case. Here, we have a case of a distribution and partition of the entire
estate by the testatrix, without her having made any previous donations during her
lifetime which would require collation to determine the legitime of each heir nor
having left merely some properties by will which would call for the application of
Articles 1061 to 1063 of the Civil Code on collation. The amount of the legitime of
the heirs is here determined and undisputed.
5. With this resolution of the decisive issue raised by oppositors-appellants, the
secondary issues are likewise necessarily resolved. Their right was merely to
demand completion of their legitime under Article 906 of the Civil Code and this has
been complied with in the approved project of partition, and they can no longer
demand a further share from the remaining portion of the estate, as bequeathed
and partitioned by the testatrix principally to the executrix-appellee.
Neither may the appellants legally insist on their legitime being completed with real
properties of the estate instead of being paid in cash, per the approved project of
partition. The properties are not available for the purpose, as the testatrix had
specifically partitioned and distributed them to her heirs, and the heirs are called
upon, as far as feasible to comply with and give effect to the intention of the

testatrix as solemnized in her will, by implementing her manifest wish of

transmitting the real properties intact to her named beneficiaries, principally the
executrix-appellee. The appraisal report of the properties of the estate as filed by
the commissioner appointed by the lower court was approved in toto upon joint
petition of the parties, and hence, there cannot be said to be any question and
none is presented as to fairness of the valuation thereof or that the legitime of
the heirs in terms of cash has been understated. The plaint of oppositors that the
purchasing value of the Philippine peso has greatly declined since the testatrix'
death in January, 1961 provides no legal basis or justification for overturning the
wishes and intent of the testatrix. The transmission of rights to the succession are
transmitted from the moment of death of the decedent (Article 777, Civil Code) and
accordingly, the value thereof must be reckoned as of then, as otherwise, estates
would never be settled if there were to be a revaluation with every subsequent
fluctuation in the values of the currency and properties of the estate. There is
evidence in the record that prior to November 25, 1964, one of the oppositors,
Bernardita, accepted the sum of P50,000.00 on account of her inheritance, which,
per the parties' manifestation, 20 "does not in any way affect the adjudication made
to her in the projects of partition of either party as the same is a mere advance of
the cash that she should receive in both projects of partition." The payment in cash
by way of making the proper adjustments in order to meet the requirements of the
law on non-impairment of legitimes as well as to give effect to the last will of the
testatrix has invariably been availed of and sanctioned. 21 That her co-oppositors
would receive their cash differentials only now when the value of the currency has
declined further, whereas they could have received them earlier, like Bernardita, at
the time of approval of the project of partition and when the peso's purchasing
value was higher, is due to their own decision of pursuing the present appeal.
ACCORDINGLY, the orders appealed from are hereby affirmed. Without cost.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Fernando,
Barredo and Villamor, JJ., concur.
G.R. No. L-22036 April 30, 1979
TESTATE ESTATE OF THE LATE REVEREND FATHER PASCUAL RIGOR. THE
PARISH PRIEST OF THE ROMAN CATHOLIC CHURCH OF VICTORIA,
TARLAC, petitioner-appellant,
vs.
BELINA RIGOR, NESTORA RIGOR, FRANCISCA ESCOBAR DE RIGOR and
JOVITA ESCOBAR DE FAUSTO,respondents-appellees.
D. Taedo, Jr. for appellants.
J. Palanca, Sr. for appellee.

AQUINO, J.:
This case is about the efficaciousness or enforceability of a devise of ricelands
located at Guimba, Nueva Ecija, with a total area of around forty- four hectares That
devise was made in the will of the late Father Pascual Rigor, a native of Victoria
Tarlac, in favor of his nearest male relative who would study for the priesthood.
The parish priest of Victoria, who claimed to be a trustee of the said lands, appealed
to this Court from the decision of the Court of Appeals affirming the order of the
probate court declaring that the said devise was inoperative (Rigor vs. Parish Priest
of the Roman Catholic Church of Victoria, Tarlac, CA-G.R. No. 24319-R, August 1,
1963).
The record discloses that Father Rigor, the parish priest of Pulilan, Bulacan, died on
August 9, 1935, leaving a will executed on October 29, 1933 which was probated by
the Court of First Instance of Tarlac in its order of December 5, 1935. Named as
devisees in the will were the testators nearest relatives, namely, his three sisters:
Florencia Rigor-Escobar, Belina Rigor-Manaloto and Nestora Rigor-Quiambao. The
testator gave a devise to his cousin, Fortunato Gamalinda.
In addition, the will contained the following controversial bequest (paragraphing
supplied to facilitate comprehension of the testamentary provisions):
Doy y dejo como legado CUATRO (4) PARCELAS de terreno palayeros
situados en el municipiooo de Guimba de la provinciaaa de NUEVA
ECIJA, cuyo num. de CERTIFICADO DE TRANSFERENCIA DE TITULO SON;
Titulo Num. 6530, mide 16,249 m. cuadrados de superficie Titulo
Num. 6548, mide 242,998 m. cuadrados de superficie y annual 6525,
mide 62,665 m. cuadrados de superficie; y Titulo Num. 6521, mide
119,251 m. cuadrados de superficie; a cualquier pariente mio varon
mas cercano que estudie la carrera eclesiatica hasta ordenarse de
Presbiterado o sea Sacerdote; las condiciones de estate legado son;
(1.a) Prohibe en absoluto la venta de estos terrenos arriba situados
objectos de este legado;
(2.a) Que el legatario pariente mio mas cercano tendra derecho de
empezar a gozar y administrar de este legado al principiar a curzar la
Sagrada Teologio, y ordenado de Sacerdote, hasta su muerte; pero que
pierde el legatario este derecho de administrar y gozar de este legado
al dejar de continuar sus estudios para ordenarse de Presbiterado
(Sacerdote).
Que el legatario una vez Sacerdote ya estara obligado a celebrar cada
ao VEINTE (20) Misas rezadas en sufragio de mi alma y de mis padres
difuntos, y si el actual legatario, quedase excomulgado, IPSO FACTO se
le despoja este legado, y la administracion de esto pasara a cargo del
actual Parroco y sus sucesores de la Iglecia Catolica de Victoria, Tarlac.

Y en intervalo de tiempo que no haya legatario acondicionado segun lo

arriba queda expresado, pasara la administracion de este legado a
cargo del actual Parroco Catolico y sus sucesores, de Victoria, Tarlac.
El Parroco administrador de estate legado, acumulara, anualmente
todos los productos que puede tener estate legado, ganando o
sacando de los productos anuales el CINCO (5) por ciento para su
administracion, y los derechos correspondientes de las VEINTE (20)
Misas rezadas que debiera el Parroco celebrar cada ao, depositando
todo lo restante de los productos de estate legado, en un banco, a
nombre de estate legado.
To implement the foregoing bequest, the administratix in 1940 submitted a project
containing the following item:
5. LEGACY OF THE CHURCH
That it be adjudicated in favor of the legacy purported to be given to
the nearest male relative who shall take the priesthood, and in the
interim to be administered by the actual Catholic Priest of the Roman
Catholic Church of Victoria, Tarlac, Philippines, or his successors, the
real properties hereinbelow indicated, to wit:

Title
No.

Lot
No.

Are
a in
Has
.

Tax
Dec.

Ass
.
Val
ue

T6530

3663

1.6
249

187
40

P
340
.00

T6548

3445
-C

24.
299
8

187
30

7,2
90.
00

T6525

3670

6.2
665

187
36

1,8
80.
00

T6521

3666

11.
925
1

187
33

3,5
80.
00

Total amount and value 44.1163 P13,090.00

Judge Roman A. Cruz in his order of August 15, 1940, approving the project of
partition, directed that after payment of the obligations of the estate (including the
sum of P3,132.26 due to the church of the Victoria parish) the administratrix should
deliver to the devisees their respective shares.
It may be noted that the administratrix and Judge Cruz did not bother to analyze the
meaning and implications of Father Rigor's bequest to his nearest male relative who
would study for the priesthood. Inasmuch as no nephew of the testator claimed the
devise and as the administratrix and the legal heirs believed that the parish priest
of Victoria had no right to administer the ricelands, the same were not delivered to
that ecclesiastic. The testate proceeding remained pending.
About thirteen years after the approval of the project of partition, or on February 19,
1954, the parish priest of Victoria filed in the pending testate proceeding a petition
praying for the appointment of a new administrator (succeeding the deceased
administration Florencia Rigor), who should deliver to the church the said ricelands,
and further praying that the possessors thereof be ordered to render an accounting
of the fruits. The probate court granted the petition. A new administrator was
appointed. On January 31, 1957 the parish priest filed another petition for the
delivery of the ricelands to the church as trustee.
The intestate heirs of Father Rigor countered with a petition dated March 25, 1957
praying that the bequest be d inoperative and that they be adjudged as the persons
entitled to the said ricelands since, as admitted by the parish priest of Victoria, "no
nearest male relative of" the testator "has ever studied for the priesthood" (pp. 25
and 35, Record on Appeal). That petition was opposed by the parish priest of
Victoria.
Finding that petition to be meritorious, the lower court, through Judge Bernabe de
Aquino, declared the bequest inoperative and adjudicated the ricelands to the
testator's legal heirs in his order of June 28, 1957. The parish priest filed two
motions for reconsideration.
Judge De Aquino granted the respond motion for reconsideration in his order of
December 10, 1957 on the ground that the testator had a grandnephew named
Edgardo G. Cunanan (the grandson of his first cousin) who was a seminarian in the
San Jose Seminary of the Jesuit Fathers in Quezon City. The administrator was
directed to deliver the ricelands to the parish priest of Victoria as trustee.

The legal heirs appealed to the Court of Appeals. It reversed that order. It held that
Father Rigor had created a testamentary trust for his nearest male relative who
would take the holy orders but that such trust could exist only for twenty years
because to enforce it beyond that period would violate "the rule against
perpetuities. It ruled that since no legatee claimed the ricelands within twenty years
after the testator's death, the same should pass to his legal heirs, citing articles 888
and 912(2) of the old Civil Code and article 870 of the new Civil Code.
The parish priest in this appeal contends that the Court of Appeals erred in not
finding that the testator created a public charitable trust and in not liberally
construing the testamentary provisions so as to render the trust operative and to
prevent intestacy.
As refutation, the legal heirs argue that the Court of Appeals d the bequest
inoperative because no one among the testator's nearest male relatives had studied
for the priesthood and not because the trust was a private charitable trust.
According to the legal heirs, that factual finding is binding on this Court. They point
out that appellant priest's change of theory cannot be countenanced in this appeal .
In this case, as in cases involving the law of contracts and statutory construction,
where the intention of the contracting parties or of the lawmaking body is to be
ascertained, the primary issue is the determination of the testator's intention which
is the law of the case (dicat testor et erit lex. Santos vs. Manarang, 27 Phil. 209,
215; Rodriguez vs. Court of Appeals, L-28734, March 28, 1969, 27 SCRA 546).
The will of the testator is the first and principal law in the matter of testaments.
When his intention is clearly and precisely expressed, any interpretation must be in
accord with the plain and literal meaning of his words, except when it may certainly
appear that his intention was different from that literally expressed (In re Estate of
Calderon, 26 Phil. 333).
The intent of the testator is the cardinal rule in the construction of wills." It is "the
life and soul of a will It is "the first greatest rule, the sovereign guide, the polestar,
in giving effect to a will". (See Dissent of Justice Moreland in Santos vs. Manarang,
27 Phil. 209, 223, 237-8.)
One canon in the interpretation of the testamentary provisions is that "the testator's
intention is to be ascertained from the words of the wilt taking into consideration
the circumstances under which it was made", but excluding the testator's oral
declarations as to his intention (Art. 789, Civil Code of the Philippines).
To ascertain Father Rigor's intention, it may be useful to make the following restatement of the provisions of his will.
1. that he bequeathed the ricelands to anyone of his nearest male relatives who
would pursue an ecclesiastical career until his ordination as a priest.
2. That the devisee could not sell the ricelands.

3. That the devisee at the inception of his studies in sacred theology could enjoy
and administer the ricelands, and once ordained as a priest, he could continue
enjoying and administering the same up to the time of his death but the devisee
would cease to enjoy and administer the ricelands if he discontinued his studies for
the priesthood.
4. That if the devisee became a priest, he would be obligated to celebrate every
year twenty masses with prayers for the repose of the souls of Father Rigor and his
parents.
5. That if the devisee is excommunicated, he would be divested of the legacy and
the administration of the riceland would pass to the incumbent parish priest of
Victoria and his successors.
6. That during the interval of time that there is no qualified devisee as
contemplated above, the administration of the ricelands would be under the
responsibility of the incumbent parish priest of Victoria and his successors, and
7. That the parish priest-administrator of the ricelands would accumulate annually
the products thereof, obtaining or getting from the annual produce five percent
thereof for his administration and the fees corresponding to the twenty masses with
prayers that the parish priest would celebrate for each year, depositing the balance
of the income of the devise in the bank in the name of his bequest.
From the foregoing testamentary provisions, it may be deduced that the testator
intended to devise the ricelands to his nearest male relative who would become a
priest, who was forbidden to sell the ricelands, who would lose the devise if he
discontinued his studies for the priesthood, or having been ordained a priest, he
was excommunicated, and who would be obligated to say annually twenty masses
with prayers for the repose of the souls of the testator and his parents.
On the other hand, it is clear that the parish priest of Victoria would administer the
ricelands only in two situations: one, during the interval of time that no nearest
male relative of the testator was studying for the priesthood and two, in case the
testator's nephew became a priest and he was excommunicated.
What is not clear is the duration of "el intervalo de tiempo que no haya legatario
acondicionado", or how long after the testator's death would it be determined that
he had a nephew who would pursue an ecclesiastical vocation. It is that patent
ambiguity that has brought about the controversy between the parish priest of
Victoria and the testator's legal heirs.
Interwoven with that equivocal provision is the time when the nearest male relative
who would study for the priesthood should be determined. Did the testator
contemplate only his nearest male relative at the time of his death? Or did he have
in mind any of his nearest male relatives at anytime after his death?
We hold that the said bequest refers to the testator's nearest male relative living at
the time of his death and not to any indefinite time thereafter. "In order to be

capacitated to inherit, the heir, devisee or legatee must be living at the moment the
succession opens, except in case of representation, when it is proper" (Art. 1025,
Civil Code).
The said testamentary provisions should be sensibly or reasonably construed. To
construe them as referring to the testator's nearest male relative at anytime after
his death would render the provisions difficult to apply and create uncertainty as to
the disposition of his estate. That could not have been his intention.
In 1935, when the testator died, his nearest leagal heirs were his three sisters or
second-degree relatives, Mrs. Escobar, Mrs. Manaloto and Mrs. Quiambao.
Obviously, when the testator specified his nearest male relative, he must have had
in mind his nephew or a son of his sister, who would be his third-degree relative, or
possibly a grandnephew. But since he could not prognosticate the exact date of his
death or state with certitude what category of nearest male relative would be living
at the time of his death, he could not specify that his nearest male relative would be
his nephew or grandnephews (the son of his nephew or niece) and so he had to use
the term "nearest male relative".
It is contended by the legal heirs that the said devise was in reality intended for
Ramon Quiambao, the testator's nephew and godchild, who was the son of his
sister, Mrs. Quiambao. To prove that contention, the legal heirs presented in the
lower court the affidavit of Beatriz Gamalinda, the maternal grandmother of
Edgardo Cunanan, who deposed that after Father Rigor's death her own son,
Valentin Gamalinda, Jr., did not claim the devise, although he was studying for the
priesthood at the San Carlos Seminary, because she (Beatriz) knew that Father
Rigor had intended that devise for his nearest male relative beloning to the Rigor
family (pp. 105-114, Record on Appeal).
Mrs. Gamalinda further deposed that her own grandchild, Edgardo G. Cunanan, was
not the one contemplated in Father Rigor's will and that Edgardo's father told her
that he was not consulted by the parish priest of Victoria before the latter filed his
second motion for reconsideration which was based on the ground that the
testator's grandnephew, Edgardo, was studying for the priesthood at the San Jose
Seminary.
Parenthetically, it should be stated at this juncture that Edgardo ceased to be a
seminarian in 1961. For that reason, the legal heirs apprised the Court of Appeals
that the probate court's order adjudicating the ricelands to the parish priest of
Victoria had no more leg to stand on (p. 84, Appellant's brief).
Of course, Mrs. Gamalinda's affidavit, which is tantamount to evidence aliunde as to
the testator's intention and which is hearsay, has no probative value. Our opinion
that the said bequest refers to the testator's nephew who was living at the time of
his death, when his succession was opened and the successional rights to his estate
became vested, rests on a judicious and unbiased reading of the terms of the will.
Had the testator intended that the "cualquier pariente mio varon mas cercano que
estudie la camera eclesiatica" would include indefinitely anyone of his nearest male

relatives born after his death, he could have so specified in his will He must have
known that such a broad provision would suspend for an unlimited period of time
the efficaciousness of his bequest.
What then did the testator mean by "el intervalo de tiempo que no haya legatario
acondicionado"? The reasonable view is that he was referring to a situation whereby
his nephew living at the time of his death, who would like to become a priest, was
still in grade school or in high school or was not yet in the seminary. In that case,
the parish priest of Victoria would administer the ricelands before the nephew
entered the seminary. But the moment the testator's nephew entered the seminary,
then he would be entitled to enjoy and administer the ricelands and receive the
fruits thereof. In that event, the trusteeship would be terminated.
Following that interpretation of the will the inquiry would be whether at the time
Father Rigor died in 1935 he had a nephew who was studying for the priesthood or
who had manifested his desire to follow the ecclesiastical career. That query is
categorically answered in paragraph 4 of appellant priest's petitions of February 19,
1954 and January 31, 1957. He unequivocally alleged therein that "not male relative
of the late (Father) Pascual Rigor has ever studied for the priesthood" (pp. 25 and
35, Record on Appeal).
Inasmuch as the testator was not survived by any nephew who became a priest, the
unavoidable conclusion is that the bequest in question was ineffectual or
inoperative. Therefore, the administration of the ricelands by the parish priest of
Victoria, as envisaged in the wilt was likewise inoperative.
The appellant in contending that a public charitable trust was constituted by the
testator in is favor assumes that he was a trustee or a substitute devisee That
contention is untenable. A reading of the testamentary provisions regarding the
disputed bequest not support the view that the parish priest of Victoria was a
trustee or a substitute devisee in the event that the testator was not survived by a
nephew who became a priest.
It should be understood that the parish priest of Victoria could become a trustee
only when the testator's nephew living at the time of his death, who desired to
become a priest, had not yet entered the seminary or, having been ordained a
priest, he was excommunicated. Those two contingencies did not arise, and could
not have arisen in this case because no nephew of the testator manifested any
intention to enter the seminary or ever became a priest.
The Court of Appeals correctly ruled that this case is covered by article 888 of the
old Civil Code, now article 956, which provides that if "the bequest for any reason
should be inoperative, it shall be merged into the estate, except in cases of
substitution and those in which the right of accretion exists" ("el legado ... por
qualquier causa, no tenga efecto se refundira en la masa de la herencia, fuera de
los casos de sustitucion y derecho de acrecer").
This case is also covered by article 912(2) of the old Civil Code, now article 960 (2),
which provides that legal succession takes place when the will "does not dispose of

all that belongs to the testator." There being no substitution nor accretion as to the
said ricelands the same should be distributed among the testator's legal heirs. The
effect is as if the testator had made no disposition as to the said ricelands.
The Civil Code recognizes that a person may die partly testate and partly intestate,
or that there may be mixed succession. The old rule as to the indivisibility of the
testator's win is no longer valid. Thus, if a conditional legacy does not take effect,
there will be intestate succession as to the property recovered by the said legacy
(Macrohon Ong Ham vs. Saavedra, 51 Phil. 267).
We find no merit in the appeal The Appellate Court's decision is affirmed. Costs
against the petitioner.
SO ORDERED
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.
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and
Castro, JJ., concur.

G.R. No. L-1787

August 27, 1948

Testacy
of
Sixto
Lopez.
JOSE
vs.
AGUSTIN LIBORO, oppositor-appellant.
Tirona,
Gutierrez
Ramon Diokno for appellee.

and

S.

Adorable

LOPEZ, petitioner-appellee,

for

appellant.

TUASON, J.:
In the Court of First Instance of Batangas the appellant opposed unsuccessfully the
probate of what purports to be the last will and testament (Exhibit A) of Don Sixto
Lopez, who died at the age of 83 in Balayan, Batangas, on March 3, 1947, almost six
months after the document in question was executed. In the court below, the
present appellant specified five grounds for his opposition, to wit: (1) that the
deceased never executed the alleged will; (2) that his signature appearing in said
will was a forgery; (3) that at the time of the execution of the will, he was wanting in
testamentary as well as mental capacity due to advanced age; (4) that, if he did
ever execute said will, it was not executed and attested as required by law, and one
of the alleged instrumental witnesses was incapacitated to act as such; and it was
procured by duress, influence of fear and threats and undue and improper pressure
and influence on the part of the beneficiaries instituted therein, principally the
testator's sister, Clemencia Lopez, and the herein proponent, Jose S. Lopez; and (5)
that the signature of the testator was procured by fraud or trick.
In this instance only one of these objections is reiterated, formulated in these
words: "That the court a quo erred in holding that the document Exhibit "A" was
executed in all particulars as required by law." To this objection is added the alleged
error of the court "in allowing the petitioner to introduce evidence that Exhibit "A"
was written in a language known to the decedent after petitioner rested his case
and over the vigorous objection of the oppositor.
The will in question comprises two pages, each of which is written on one side of a
separate sheet. The first sheet is not paged either in letters or in Arabic numerals.
This, the appellant believes, is a fatal defect.
The purpose of the law in prescribing the paging of wills is guard against fraud, and
to afford means of preventing the substitution or of defecting the loss of any of its
pages. (Abangan vs. Abangan, 40 Phil., 476.) In the present case, the omission to
put a page number on the first sheet, if that be necessary, is supplied by other
forms of identification more trustworthy than the conventional numerical words or
characters. The unnumbered page is clearly identified as the first page by the
internal sense of its contents considered in relation to the contents of the second
page. By their meaning and coherence, the first and second lines on the second
page are undeniably a continuation of the last sentence of the testament, before
the attestation clause, which starts at the bottom of the preceding page.
Furthermore, the unnumbered page contains the caption "TESTAMENTO," the
invocation of the Almighty, and a recital that the testator was in full use of his

testamentary faculty, all of which, in the logical order of sequence, precede the
direction for the disposition of the marker's property. Again, as page two contains
only the two lines above mentioned, the attestation clause, the mark of the testator
and the signatures of the witnesses, the other sheet can not by any possibility be
taken for other than page one. Abangan vs. Abangan, supra, andFernandez vs.
Vergel de Dios, 46 Phil., 922 are decisive of this issue.
Although not falling within the purview and scope of the first assignment of error,
the matter of the credibility of the witnesses is assailed under this heading. On the
merits we do not believe that the appellant's contention deserves serious
consideration. Such contradictions in the testimony of the instrumental witnesses as
are set out in the appellant's brief are incidents not all of which every one of the
witnesses can be supposed to have perceived, or to recall in the same order in
which they occurred.
Everyday life and the result of investigations made in the field of
experimental psychology show that the contradictions of witnesses generally
occur in the details of a certain incident, after a long series of questioning,
and far from being an evidence of falsehood constitute a demonstration of
good faith. Inasmuch as not all those who witness an incident are impressed
in like manner, it is but natural that in relating their impressions they should
not agree in the minor details; hence, the contradictions in their testimony.
(People vs. Limbo, 49 Phil., 99.)
The testator affixed his thumbmark to the instrument instead of signing his name.
The reason for this was that the testator was suffering from "partial paralysis."
While another in testator's place might have directed someone else to sign for him,
as appellant contends should have been done, there is nothing curious or suspicious
in the fact that the testator chose the use of mark as the means of authenticating
his will. It was a matter of taste or preference. Both ways are good. A statute
requiring a will to be "signed" is satisfied if the signature is made by the testator's
mark. (De Gala vs. Gonzales and Ona, 53 Phil., 108; 28 R. C. L., 117.)
With reference to the second assignment of error, we do not share the opinion that
the trial court communicated an abuse of discretion in allowing the appellant to
offer evidence to prove knowledge of Spanish by the testator, the language in which
the will is drawn, after the petitioner had rested his case and after the opponent had
moved for dismissal of the petition on the ground of insufficiency of evidence. It is
within the discretion of the court whether or not to admit further evidence after the
party offering the evidence has rested, and this discretion will not be reviewed
except where it has clearly been abused. (64 C. J., 160.) More, it is within the sound
discretion of the court whether or not it will allow the case to be reopened for the
further introduction of evidence after a motion or request for a nonsuit, or
a demurrer to the evidence, and the case may be reopened after the court has
announced its intention as to its ruling on the request, motion, or demurrer, or has
granted it or has denied the same, or after the motion has been granted, if the
order has not been written, or entered upon the minutes or signed. (64 C. J., 164.)

In this jurisdiction this rule has been followed. After the parties have produced their
respective direct proofs, they are allowed to offer rebutting evidence only, but, it
has been held, the court, for good reasons, in the furtherance of justice, may permit
them to offer evidence upon their original case, and its ruling will not be disturbed
in the appellate court where no abuse of discretion appears. (Siuliong and Co. vs.
Ylagan, 43 Phil., 393; U. S. vs. Alviar, 36 Phil., 804.) So, generally, additional
evidence is allowed when it is newly discovered, or where it has been omitted
through inadvertence or mistake, or where the purpose of the evidence is to the
evidence is to correct evidence previously offered. (I Moran's Comments on the
Rules of Court, 2d ed., 545; 64 C. J., 160-163.) The omission to present evidence on
the testator's knowledge of Spanish had not been deliberate. It was due to a
misapprehension or oversight.
Although alien to the second assignment of error, the appellant impugns the will for
its silence on the testator's understanding of the language used in the testament.
There is no statutory requirement that such knowledge be expressly stated in the
will itself. It is a matter that may be established by proof aliunde. This Court so
impliedly ruled in Gonzales vs. Laurel, 46 Phil., 781, in which the probate of a will
written in Tagalog was ordered although it did not say that the testator knew that
idiom. In fact, there was not even extraneous proof on the subject other than the
fact that the testator resided in a Tagalog region, from which the court said "a
presumption arises that said Maria Tapia knew the Tagalog dialect.
The order of the lower court ordering the probate of the last will and testament of
Don Sixto Lopez is affirmed, with costs.
G.R. No. L-23372

June 14, 1967

IN RE: INTESTATE ESTATE OF THE LATE PIO DURAN. CIPRIANO DURAN and
MIGUEL
DURAN, petitioners-appellants,
vs.
JOSEFINA B. DURAN, movant-oppositor and appellee.
A. C. Aguilar, N. J. Quisumbing and E. Quisumbing-Fernando for petitionersappellants.
Bausa, Ampil and Suarez for movant-oppositor-appellee.
BENGZON J.P, J.:
Pio Duran died without testament on February 28, 1961 in Guinobatan Albay. Among
his alleged heirs are Josefina Duran, as surviving spouse; several brothers and
sisters; nephews and nieces.
Subsequent to his death, on June 2, 1962, Cipriano Duran, one of the surviving
brothers, executed a public instrument assigning and renouncing his hereditary
rights to the decedent's estate in favor of Josefina Duran, for the consideration of
P2,500.00.

A year later, on June 8, 1963, Cipriano Duran filed in the Court of First Instance of
Albay a petition for intestate proceedings to settle Pio Duran's estate, further asking
that he be named the administrator. An ex parte motion to be appointed special
administrator was also filed by him.
Against said petition, Josefina Duran filed on August 9, 1963 an opposition, praying
for its dismissal upon the ground that the petitioner is not an "interested person" in
the estate, in view of the deed of transfer and renunciation the estate, in view of
afore-stated, attaching a copy of the same; in the alternative, she asked to be
appointed administratrix.
Replying to this, Cipriano alleged, on September 11, 1963, alleged in his opposition
to the motion to dismiss, that Josefina Duran was not the decedent's wife. Anent the
deed of assignment, he contended that the same was procured thru fraud, with
gross inadequacy of price and vitiated by lesion.
Still later, another brother of the decedent, Miguel Duran, filed on September 14,
1963, a petition to be joined as co-petitioner of Cipriano. Josefina Duran moved to
strike out said petition as an improper attempt to intervene in the case. She also
filed a reply to Cipriano's opposition to her motion to dismiss. In turn, Miguel filed an
opposition to Josefina's motion to strike out.1wph1.t
Acting on said motions, on June 3, 1964, the Court of First Instance issued an order
dismissing the petition of Cipriano for his lack of interest in the estate. Said lack of
interest was premised on the deed of transfer executed by Cipriano, regarding
which the court declared itself without power to examine in said proceedings,
collaterally, the alleged fraud, inadequacy of price and lesion that would render it
rescissible or voidable. And with the petition's dismissal, Miguel's petition to be
joined as co-petitioner was deemed without leg to stand on.
Appeal to Us directly, on questions of law, was taken by Cipriano and Miguel Duran.
The Rules of Court provides that a petition for administration and settlement of an
estate must be filed by an "interested person" (See. 2, Rule 79). Appellants contend
that the deed of assignment executed by Cipriano did not operate to render him a
person without interest in the estate. Relying on In re Irene Santos, L-11848, May
31, 1962, they argue that an assignment by one heir of his share in the estate to a
co-heir amounts to a partition needing approval by the settlement court to be
effective; and that the assigning heir does not lose his status as a person interested
in the estate, even after said assignment is approved by the court.
The situation in the Santos case involves an assignment between co-heirs pendente
lite, during the course of settlement proceedings, properly and validly commenced.
At the time of said assignment, therefore, the settlement court had already acquired
jurisdiction over the properties of estate. As a result, any assignment regarding the
same had to be approved by said court. And since the approval the court is not

deemed final until the estate is closed the assigning heir remains an interested
person in proceedings even after said approval, which can be vacated is given.
In the present case, however, the assignment took place when no settlement
proceedings was pending. The properties subject matter of the assignment were not
under the jurisdiction of a settlement court. Allowing that the assignment must be
deemed a partition as between the assignor and assignee, the same does not need
court approval to be effective as between the parties. An extrajudicial partition is
valid as between the participants even if the requisites of Sec. 1, Rule 74 for
extrajudicial partition are not followed, since said requisites are for purposes of
binding creditors and non-participating heirs only (Hernandez v. Andal, 78 Phil. 196).
Should it be contended that said partition was attended with fraud, lesion or
inadequacy of price, the remedy is to rescind or to annul the same in an action for
that purpose. And in the meanwhile, assigning heir cannot initiate a settlement
proceedings, for until the deed of assignment is annulled or rescinded, it is deemed
valid and effective against him, so that he is left without that "interest" in the estate
required to petite for settlement proceedings.
Anent appellant Miguel Duran, he sought in his petition below to "join petitioner
Cipriano Duran as co-petitioner in the latter's petition . . . and incorporates herein
by adoption all the allegations made in said petition." (Record on Appeal, pp. 45-46).
The same, therefore, amounted to a petition to intervene in the settlement
proceedings. As aptly ruled by the court a quo, since there was really no settlement
proceedings in the first place, the petition to intervene must be denied.
Finally, although Josefina Duran prayed to be appointed administratrix, her doing so
did not amount to ratification of the petition for settlement under the ruling
in Eusebio v. Valmores, 97 Phil. 163, since she did so merely by way of an
alternative prayer, should her motion to dismiss fail. And said motion to dismiss was
properly sustained.
Wherefore, the dismissal order appealed from is hereby affirmed, with costs against
appellants. So ordered.
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.

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
Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.

petitioner.

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.)
CORTES

"ROSENDA

(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 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.
G.R. No. L-5971

February 27, 1911

BEATRIZ
NERA,
ET
vs.
NARCISA RIMANDO, defendant-appellant.
Valerio
Fontanilla
and
Anacleto Diaz for appellees.

Andres

AL., plaintiffs-appellees,

Asprer

for

appellant.

CARSON, J.:
The only question raised by the evidence in this case as to the due execution of the
instrument propounded as a will in the court below, is whether one of the
subscribing witnesses was present in the small room where it was executed at the
time when the testator and the other subscribing witnesses attached their
signatures; or whether at that time he was outside, some eight or ten feet away, in
a large room connecting with the smaller room by a doorway, across which was
hung a curtain which made it impossible for one in the outside room to see the
testator and the other subscribing witnesses in the act of attaching their signatures
to the instrument.
A majority of the members of the court is of opinion that this subscribing witness
was in the small room with the testator and the other subscribing witnesses at the
time when they attached their signatures to the instrument, and this finding, of
course, disposes of the appeal and necessitates the affirmance of the decree
admitting the document to probate as the last will and testament of the deceased.
The trial judge does not appear to have considered the determination of this
question of fact of vital importance in the determination of this case, as he was of
opinion that under the doctrine laid down in the case of Jaboneta vs. Gustilo (5 Phil.
Rep., 541) the alleged fact that one of the subscribing witnesses was in the outer
room when the testator and the other describing witnesses signed the instrument in
the inner room, had it been proven, would not be sufficient in itself to invalidate the
execution of the will. But we are unanimously of opinion that had this subscribing
witness been proven to have been in the outer room at the time when the testator
and the other subscribing witnesses attached their signatures to the instrument in
the inner room, it would have been invalid as a will, the attaching of those
signatures under circumstances not being done "in the presence" of the witness in
the outer room. This because the line of vision from this witness to the testator and

the other subscribing witnesses would necessarily have been impeded by the
curtain separating the inner from the outer one "at the moment of inscription of
each signature."
In the case just cited, on which the trial court relied, we held that:
The true test of presence of the testator and the witnesses in the execution of
a will is not whether they actually saw each other sign, but whether they
might have been seen each other sign, had they chosen to do so, considering
their mental and physical condition and position with relation to each other at
the moment of inscription of each signature.
But it is especially to be noted that the position of the parties with relation to each
other at the moment of the subscription of each signature, must be such that they
may see each other sign if they choose to do so. This, of course, does not mean that
the testator and the subscribing witnesses may be held to have executed the
instrument in the presence of each other if it appears that they would not have
been able to see each other sign at that moment, without changing their relative
positions or existing conditions. The evidence in the case relied upon by the trial
judge discloses that "at the moment when the witness Javellana signed the
document he was actually and physically present and in such position with relation
to Jaboneta that he could see everything that took place by merely casting his eyes
in the proper direction and without any physical obstruction to prevent his doing
so." And the decision merely laid down the doctrine that the question whether the
testator and the subscribing witnesses to an alleged will sign the instrument in the
presence of each other does not depend upon proof of the fact that their eyes were
actually cast upon the paper at the moment of its subscription by each of them, but
that at that moment existing conditions and their position with relation to each
other were such that by merely casting the eyes in the proper direction they could
have seen each other sign. To extend the doctrine further would open the door to
the possibility of all manner of fraud, substitution, and the like, and would defeat
the purpose for which this particular condition is prescribed in the code as one of
the requisites in the execution of a will.
The decree entered by the court below admitting the instrument propounded
therein to probate as the last will and testament of Pedro Rimando, deceased, is
affirmed with costs of this instance against the appellant.
G.R. No. 6845

September 1, 1914

YAP
TUA, petitioner-appellee,
vs.
YAP CA KUAN and YAP CA KUAN, objectors-appellants.
Chicote
and
O'Brien and DeWitt for appellee.

Miranda

for

appellants.

JOHNSON, J.:
It appears from the record that on the 23d day of August, 1909, one Perfecto
Gabriel, representing the petitioner, Yap Tua, presented a petition in the Court of
First Instance of the city of Manila, asking that the will of Tomasa Elizaga Yap Caong
be admitted to probate, as the last will and testament of Tomasa Elizaga Yap Caong,
deceased. It appears that the said Tomasa Elizaga Yap Caong died in the city of
Manila on the 11th day of August, 1909. Accompanying said petition and attached
thereto was the alleged will of the deceased. It appears that the will was signed by
the deceased, as well as Anselmo Zacarias, Severo Tabora, and Timoteo Paez.
Said petition, after due notice was given, was brought on for hearing on the 18th
day of September, 1909. Timoteo Paez declared that he was 48 years of age; that
he had known the said Tomasa Elizaga Yap Caong; that she had died on the 11th
day of August, 1909; that before her death she had executed a last will and
testament; that he was present at the time of the execution of the same; that he
had signed the will as a witness; that Anselmo Zacarias and Severo Tabora had also
signed said will as witnesses and that they had signed the will in the presence of the
deceased.
Pablo Agustin also declared as a witness and said that he was 40 years of age; that
he knew Tomasa Elizaga Yap Caong during her lifetime; that she died on the 11th
day of August, 1909, in the city of Manila; that before her death she had executed a
last will and testament; that he was present at the time said last will was executed;
that there were also present Timoteo Paez and Severo Tabora and a person called
Anselmo; that the said Tomasa Elizaga Yap Caong signed the will in the presence of
the witnesses; that he had seen her sign the will with his own eyes; that the
witnesses had signed the will in the presence of the said Tomasa Elizaga Yap Caong
and in the presence of each other; that the said Tomasa Elizaga Yap Caong signed
the will voluntarily, and in his judgment, she was in the possession of her faculties;
that there were no threats or intimidation used to induce her to sign the will; that
she signed it voluntarily.
No further witnesses were called and there was no further opposition presented to
the legalization of the said will.
After hearing the foregoing witnesses, the Honorable A. S. Crossfield, judge, on the
29th day of September, 1909, ordered that the last will and testament of Tomasa
Elizaga Yap Caong be allowed and admitted to probate. The will was attached to the
record and marked Exhibit A. The court further ordered that one Yap Tua be
appointed as executor of the will, upon the giving of a bond, the amount of which
was to be fixed later.
From the record it appears that no further proceedings were had until the 28th of
February, 1910, when Yap Ca Kuan and Yap Ca Llu appeared and presented a
petition, alleging that they were interested in the matters of the said will and

desired to intervene and asked that a guardian ad litem be appointed to represent

them in the cause.
On the 1st day of March, 1910, the court appointed Gabriel La O as guardian ad
litem of said parties. Gabriel La O accepted said appointment, took the oath of office
and entered upon the performance of his duties as guardian ad litem of said parties.
On the 2d day of March, 1910, the said Gabriel La O appeared in court and
presented a motion in which he alleged, in substance:
First. That the will dated the 11th day of August, 1909, and admitted to probate by
order of the court on the 29th day of September, 1909, was null, for the following
reasons:
(a) Because the same had not been authorized nor signed by the witnesses
as the law prescribes.
(b) Because at the time of the execution of the will, the said Tomasa Elizaga
Yap Caong was not then mentally capacitated to execute the same, due to
her sickness.
(c) Because her signature to the will had been obtained through fraud and
illegal influence upon the part of persons who were to receive a benefit from
the same, and because the said Tomasa Elizaga Yap Caong had no intention
of executing the same.
Second. That before the execution of the said will, which they alleged to be null, the
said Tomasa Elizaga Yap Caong had executed another will, with all the formalities
required by law, upon the 6th day of August, 1909.
Third. That the said Yap Ca Kuan and Yap Ca Llu were minors and that, even though
they had been negligent in presenting their opposition to the legalization of the will,
said negligence was excusable, on account of their age.
Upon the foregoing facts the court was requested to annul and set aside the order
of the 29th day of September, 1909, and to grant to said minors an opportunity to
present new proof relating to the due execution of said will. Said petition was based
upon the provisions of section 113 of the Code of Procedure in Civil Actions.
While it is not clear from the record, apparently the said minors in their petition for a
new trial, attached to said petition the alleged will of August 6, 1909, of the said
Tomasa Elizaga Yap Caong, and the affidavits of Severo Tabora, Clotilde and Cornelia
Serrano.
Upon the 10th day of March, 1910, upon the hearing of said motion for a rehearing,
the Honorable A. S. Crossfield, judge, granted said motion and ordered that the
rehearing should take place upon the 18th day of March, 1910, and directed that

notice should be given to the petitioners of said rehearing and to all other persons
interested in the will. At the rehearing a number of witnesses were examined.
It will be remembered that one of the grounds upon which the new trial was
requested was that the deceased, Tomasa Elizaga Yap Caong, had not signed the
will (Exhibit A) of the 11th of August, 1909; that in support of that allegation, the
protestants, during the rehearing, presented a witness called Tomas Puzon. Puzon
testified that he was a professor and an expert in handwriting, and upon being
shown the will (of August 11, 1909) Exhibit A, testified that the name and surname
on Exhibit A, in his judgment were written by two different hands, though the given
name is the same as that upon Exhibit 1 (the will of August 6, 1909), because he
found in the name "Tomasa" on Exhibit A a similarity in the tracing to the "Tomasa"
in Exhibit 1; that comparing the surname on Exhibit A with the surname on Exhibit 1
he found that the character of the writing was thoroughly distinguished and
different by the tracing and by the direction of the letters in the said two exhibits;
that from his experience and observation he believed that the name "Tomasa" and
"Yap Caong," appearing in the signature on Exhibit A were written by different
person.
Puzon, being cross-examined with reference to his capacity as an expert in
handwriting, testified that while he was a student in the Ateneo de Manila, he had
studied penmanship; that he could not tell exactly when that was, except that he
had concluded his course in the year 1882; that since that time he had been a
telegraph operator for seventeen years and that he had acted as an expert in handwriting in the courts in the provinces.
Gabriel La O was called as a witness during the rehearing and testified that he had
drawn the will of the 6th of August, 1909, at the request of Tomasa Elizaga Yap
Caong; that it was drawn in accordance with her request and under her directions;
that she had signed it; that the same had been signed by three witnesses in her
presence and in the presence of each other; that the will was written in her house;
that she was sick and was lying in her bed, but that she sat up to sign the will; that
she signed the will with great difficulty; that she was signed in her right mind.
The said Severo Tabora was also called as a witness again during the rehearing. He
testified that he knew Tomasa Elizaga Yap Caong during her lifetime; that she was
dead; that his signature as a witness to Exhibit A (the will of August 11, 1909) was
placed there by him; that the deceased, Tomasa Elizaga Yap Caong, became familiar
with the contents of the will because she signed it before he (the witness) did; that
he did not know whether anybody there told her to sign the will or not; that he
signed two bills; that he did not know La O; that he did not believe that Tomasa had
signed the will (Exhibit A) before he arrived at the house; that he was not sure that
he had seen Tomasa Elizaga Yap Caong sign Exhibit A because there were many
people and there was a screen at the door and he could not see; that he was called
a a witness to sign the second will and was told by the people there that it was the
same as the first; that the will (Exhibit A) was on a table, far from the patient, in the
house but outside the room where the patient was; that the will was signed by Paez

and himself; that Anselmo Zacarias was there; that he was not sure whether
Anselmo Zacarias signed the will or not; that he was not sure whether Tomasa
Elizaga Yap Caong could see the table on which the will was written at the time it
was signed or not; that there were many people in the house; that he remembered
the names of Pedro and Lorenzo; that he could not remember the names of any
others; that the will remained on the table after he signed it; that after he signed
the will he went to the room where Tomasa was lying; that the will was left on the
table outside; that Tomasa was very ill; that he heard the people asking Tomasa to
sign the will after he was (the witness) had signed it; that he saw Paez sign the will,
that he could not remember whether Anselmo Zacarias had signed the will, because
immediately after he and Paez signed it, he left because he was hungry; that the
place where the table was located was in the same house, on the floor, about two
steps down from the floor on which Tomasa was.
Rufino R. Papa, was called as a witness for the purpose of supporting the allegation
that Tomasa Elizaga Yap Caong was mentally incapacitated to make the will dated
August 11, 1909 (Exhibit A). Papa declared that he was a physician; that he knew
Tomasa Elizaga Yap Caong; that he had treated her in the month of August; that he
visited her first on the 8th day of August; that he visited her again on the 9th and
10th days of August; that on the first visit he found the sick woman completely
weak very weak from her sickness, in the third stage of tuberculosis; that she was
lying in bed; that on the first visit he found her with but little sense, the second day
also, and on the third day she had lost all her intelligence; that she died on the 11th
of August; tat he was requested to issue the death certificate; that when he asked
her (Tomasa) whether she was feeling any pain or anything of that kind, she did not
answer at all; that she was in a condition of stupor, induced, as he believed, by the
stage of uraemia from which she was suffering.
Anselmo Zacarias, who had signed the will of August 11, 1909, was also called as a
witnesses during the rehearing. He testified that he had known Tomasa Elizaga Yap
Caong since he was a child; that Tomasa was dead; that he had written the will
exhibit A; that it was all in his writing except the last part, which was written by
Carlos Sobaco; that he had written the will Exhibit A at the request of the uncle of
Tomasa; that Lorenzo, the brother of the deceased, was the one who had instructed
him as to the terms of the will ; that the deceased had not spoken to him
concerning the terms of the will; that the will was written in the dining room of the
residence of the deceased; that Tomasa was in another room different from that in
which the will was written; that the will was not written in the presence of Tomasa;
that he signed the will as a witness in the room where Tomasa was lying; that the
other witnesses signed the will in the same room that when he went into the room
where the sick woman was (Tomasa Elizaga Yap Caong) Lorenzo had the will in his
hands; that when Lorenzo came to the bed he showed the will to his sister (Tomasa)
and requested her to sign it; that she was lying stretched out on the bed and two
women, who were taking care of her, helped her to sit up, supporting her by lacing
their hands at her back; that when she started to write her name, he withdrew from
the bed on account of the best inside the room; when he came back again to the
sick bed the will was signed and was again in the hands of Lorenzo; that he did not

see Tomasa sign the will because he withdrew from the room; that he did not know
whether Tomasa had been informed of the contents of the will or not; he supposed
she must have read it because Lorenzo turned the will over to her; that when
Lorenzo asked her to sign the will, he did not know what she said he could not
hear her voice; that he did not know whether the sick woman was him sign the will
or not; that he believed that Tomasa died the next day after the will had been
signed; that the other two witnesses, Timoteo Paez and Severo Tabora, had signed
the will in the room with the sick woman; that he saw them sign the will and that
they saw him sign it; that he was not sure whether the testatrix could have seen
them at the time they signed the will or not; that there was a screen before the bed;
that he did not think that Lorenzo had been giving instructions as to the contents of
the will; that about ten or fifteen minutes elapsed from the time Lorenzo handed the
will to Tomasa before she started to sign it; that the pen with which she signed the
will as given to her and she held it.
Clotilde Mariano testified that he was a cigarette maker; that he knew Tomasa
Elizaga Yap Caong and that she was dead; that she had made two wills; that the first
one was written by La O and the second by Zacarias; that he was present at the
time Zacarias wrote the second one; that he was present when the second will was
taken to Tomasa for signature; that Lorenzo had told Tomasa that the second will
was exactly like the first; that Tomasa said she could not sign it.
On cross examination he testified that there was a lot of visitors there; that Zacarias
was not there; that Paez and Tabora were there; that he had told Tomasa that the
second will was exactly like the first.
During the rehearing Cornelia Serrano and Pedro Francisco were also examined as
witnesses. There is nothing in their testimony, however, which in our opinion is
important.
In rebuttal Julia e la Cruz was called as a witness. She testified that she was 19
years of age; that she knew Tomasa Elizaga Yap Caong during her lifetime; that she
lived in the house of Tomasa during the last week of her illness; that Tomasa had
made two wills; that she was present when the second one was executed; that a
lawyer had drawn the will in the dining room and after it had been drawn and
everything finished , it was taken to where Doa Tomasa was, for her signature; that
it was taken to her by Anselmo Zacarias; that she was present at the time Tomasa
signed the will that there were many other people present also; that she did not see
Timoteo Paez there; that she saw Severo Tabora; that Anselmo Zacarias was
present; that she did not hear Clotilde Mariano ask Tomasa to sign the will; that she
did not hear Lorenzo say to Tomasa that the second will was the same sa the first;
that Tomasa asked her to help her to sit up and to put a pillow to her back when
Zacarias gave her some paper or document and asked her to sign it; that she saw
Tomasa take hold of the pen and try to sign it but she did not see the place she
signed the document, for the reason that she left the room; that she saw Tomasa
sign the document but did not see on what place on the document she signed; and
that a notary public came the next morning; that Tomasa was able to move about in

the bed; that she had seen Tomasa in the act of starting to write her signature when
she told her to get her some water.
Yap Cao Quiang was also called as a witness in rebuttal. He testified that he knew
Tomasa Elizaga Yap Caong and knew that she had made a will; that he saw the will
at the time it was written; that he saw Tomasa sign it on her head; that he did not
hear Lorenzo ask Tomasa to sign the will; that Lorenzo had handed the will to
Tomasa to sign; that he saw the witnesses sign the will on a table near the bed; that
the table was outside the curtain or screen and near the entrance to the room
where Tomasa was lying.
Lorenzo Yap Caong testified as a witness on rebuttal. He said that he knew Anselmo
Zacarias and that Zacarias wrote the will of Tomasa Elizaga Yap Caong; that Tomasa
had given him instructions; that Tomasa had said that she sign the will; that the will
was on a table near the bed of Tomasa; that Tomasa, from where she was lying in
the bed, could seethe table where the witnesses had signed the will.
During the rehearing certain other witnesses were also examined; in our opinion,
however, it is necessary to quote from them for the reason that their testimony in
no way affects the preponderance of proof above quoted.
At the close of the rehearing the Honorable A. S. Crossfield, judge, in an extended
opinion, reached the conclusion that the last will and testament of Tomasa Elizaga
Yap Caong, which was attached to the record and marked Exhibit A was the last will
and testament of the said Tomasa Elizaga Yap Caong and admitted it to probate and
ordered that the administrator therefore appointed should continue as such
administrator. From that order the protestants appealed to this court, and made the
following assignments of error:
I. The court erred in declaring that the will, Exhibit A, was executed by the
deceased Tomasa Yap Caong, without the intervention of any external
influence on the part of other persons.
II. The court erred in declaring that the testator had clear knowledge and
knew what she was doing at the time of signing the will.
III. The court erred in declaring that the signature of the deceased Tomasa
Yap Caong in the first will, Exhibit 1, is identical with that which appears in
the second will, Exhibit A.
IV. The court erred in declaring that the will, Exhibit A, was executed in
accordance with the law.
With reference to the first assignment of error, to wit, that undue influence was
brought to bear upon Tomasa Elizaga Yap Caong in the execution of her will of
August 11th, 1909 (Exhibit A), the lower court found that no undue influence had
been exercised over the mind of the said Tomasa Elizaga Yap Caong. While it is true

that some of the witnesses testified that the brother of Tomasa, one Lorenzo, had
attempted to unduly influence her mind in the execution of he will, upon the other
hand, there were several witnesses who testified that Lorenzo did not attempt, at
the time of the execution of the will, to influence her mind in any way. The lower
court having had an opportunity to see, to hear, and to note the witnesses during
their examination reached the conclusion that a preponderance of the evidence
showed that no undue influence had been used. we find no good reason in the
record for reversing his conclusions upon that question.
With reference to the second assignment of error to wit, that Tomasa Elizaga Yap
Caong was not of sound mind and memory at the time of the execution of the will,
we find the same conflict in the declarations of the witnesses which we found with
reference to the undue influence. While the testimony of Dr. Papa is very strong
relating to the mental condition of Tomasa Elizaga Yap Caong, yet, nevertheless, his
testimony related to a time perhaps twenty-four hours before the execution of the
will in question (Exhibit A). Several witnesses testified that at the time the will was
presented to her for her signature, she was of sound mind and memory and asked
for a pen and ink and kept the will in her possession for ten or fifteen minutes and
finally signed it. The lower court found that there was a preponderance of evidence
sustaining the conclusion that Tomasa Elizaga Yap Caong was of sound mind and
memory and in the possession of her faculties at the time she signed this will. In
view of the conflict in the testimony of the witnesses and the finding of the lower
court, we do not feel justified in reversing his conclusions upon that question.
With reference to the third assignment of error, to wit, that the lower court
committed an error in declaring that the signature of Tomasa Elizaga Yap Caong, on
her first will (August 6, 1909, Exhibit 1), is identical with that which appears in the
second will (August 11, 1909, Exhibit A), it may be said:
First. That whether or not Tomasa Elizaga Yap Caong executed the will of August 6,
1909 (Exhibit 1), was not the question presented to the court. The question
presented was whether or not she had duly executed the will of August 11, 1909
(Exhibit A).
Second. There appears to be but little doubt that Tomasa Elizaga Yap Caong did
execute the will of August 6, 1909. Several witnesses testified to that fact. The mere
fact, however, that she executed a former will is no proof that she did not execute a
later will. She had a perfect right, by will, to dispose of her property, in accordance
with the provisions of law, up to the very last of moment her life. She had a perfect
right to change, alter, modify or revoke any and all of her former wills and to make a
new one. Neither will the fact that the new will fails to expressly revoke all former
wills, in any way sustain the charge that she did not make the new will.
Third. In said third assignment of error there is involved in the statement that "The
signature of Tomasa Elizaga Yap Caong, in her first will (Exhibit 1) was not identical
with that which appears in her second will (Exhibit A)" the inference that she had
not signed the second will and all the argument of the appellants relating to said

third assignment of error is based upon the alleged fact that Tomasa Elizaga Yap
Caong did not sign Exhibit A. Several witnesses testified that they saw her write the
name "Tomasa." One of the witnesses testified that she had written her full name.
We are of the opinion, and we think the law sustains our conclusion, that if Tomasa
Elizaga Yap Caong signed any portion of her name tot he will, with the intention to
sign the same, that the will amount to a signature. It has been held time and time
again that one who makes a will may sign the same by using a mark, the name
having been written by others. If writing a mark simply upon a will is sufficient
indication of the intention of the person to make and execute a will, then certainly
the writing of a portion or all of her name ought to be accepted as a clear indication
of her intention to execute the will. (Re Goods of Savory, 15 Jur., 1042; Addy vs.
Grix, 8 Ves. Jr., 504; Baker vs. Dening, 8 Ad. and El., 94 Long vs. Zook, 13 Penn.,
400; Vernon vs. Kirk, 30 Penn., 218; Cozzen's Will, 61 Penn., 196; Re Goods of
Emerson, L. R. 9 Ir., 443; Main vs. Ryder, 84 Penn., 217.)
We find a very interesting case reported in 131 Pennsylvania State, 220 (6 L. R. A.,
353), and cited by the appellees, which was known as "Knox's Appeal." In this case
one Harriett S. Knox died very suddenly on the 17th of October, 1888, at the
residence of her father. After her death a paper was found in her room, wholly in her
handwriting, written with a lead pencil, upon three sides of an ordinary folded sheet
of note paper and bearing the signature simply of "Harriett." In this paper the
deceased attempted to make certain disposition of her property. The will was
presented for probate. The probation was opposed upon the ground that the same
did not contain the signature of the deceased. That was the only question presented
to the court, whether the signature, in the form above indicated, was a sufficient
signature to constitute said paper the last will and testament of Harriett S. Knox. It
was admitted that the entire paper was in the handwriting of the deceased. In
deciding that question, Justice Mitchell said:
The precise case of a signature by the first name only, does not appear to
have arisen either in England or the United States; but the principle on which
the decisions already referred to were based, especially those in regard to
signing by initials only, are equally applicable to the present case, and
additional force is given to them by the decisions as to what constitutes a
binding signature to a contract. (Palmer vs. Stephens, 1 Denio, 478; Sanborne
vs. Flager, 9 Alle, 474; Weston vs. Myers, 33 Ill., 424; Salmon Falls, etc. Co.
vs. Goddard, 14 How. (U. S.), 446.)
The man who cannot write and who is obliged to make his mark simply therefor,
upon the will, is held to "sign" as effectually as if he had written his initials or his full
name. It would seem to be sufficient, under the law requiring a signature by the
person making a will, to make his mark, to place his initials or all or any part of his
name thereon. In the present case we think the proof shows, by a large
preponderance, that Tomasa Elizaga Yap Caong, if she did not sign her full name, did
at least sign her given name "Tomasa," and that is sufficient to satisfy the statute.

With reference to the fourth assignment of error, it may be said that the argument
which was preceded is sufficient to answer it also.
During the trial of the cause the protestants made a strong effort to show that
Tomasa Elizaga Yap Caong did not sign her name in the presence of the witnesses
and that they did not sign their names in their presence nor in the presence of each
other. Upon that question there is considerable conflict of proof. An effort was made
to show that the will was signed by the witnesses in one room and by Tomasa in
another. A plan of the room or rooms in which the will was signed was presented as
proof and it was shown that there was but one room; that one part of the room was
one or two steps below the floor of the other; that the table on which the witnesses
signed the will was located upon the lower floor of the room. It was also shown that
from the bed in which Tomasa was lying, it was possible for her to see the table on
which the witnesses signed the will. While the rule is absolute that one who makes a
will must sign the same in the presence of the witnesses and that the witnesses
must sign in the presence of each other, as well as in the presence of the one
making the will, yet, nevertheless, the actual seeing of the signatures made is not
necessary. It is sufficient if the signatures are made where it is possible for each of
the necessary parties, if they desire to see, may see the signatures placed upon the
will.
In cases like the present where there is so much conflict in the proof, it is very
difficult for the courts to reach conclusions that are absolutely free from doubt.
Great weight must be given by appellate courts who do not see or hear the
witnesses, to the conclusions of the trial courts who had that opportunity.
Upon a full consideration of the record, we find that a preponderance of the proof
shows that Tomasa Elizaga Yap Caong did execute, freely and voluntarily, while she
was in the right use of all her faculties, the will dated August 11, 1909 (Exhibit A).
Therefore the judgment of the lower court admitting said will to probate is hereby
affirmed with costs.
G.R. No. L-5826

April 29, 1953

Testate estate of the late VICENTE CAGRO. JESUSA CAGRO, petitionerappellee,

vs.
PELAGIO CAGRO, ET AL., oppositors-appellants.
Clouduallo
Lucero
and
Vicente
C.
Santos
Marciano Chitongco and Zosimo B. Echanova for appellee.

for

appellants.

PARAS, C.J.:
This is an appeal interposed by the oppositors from a decision of the Court of First
Instance of Samar, admitting to probate the will allegedly executed by Vicente
Cagro who died in Laoangan, Pambujan, Samar, on February 14, 1949.

The main objection insisted upon by the appellant in that the will is fatally defective,
because its attestation clause is not signed by the attesting witnesses. 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.
Wherefore, the appealed decision is reversed and the probate of the will in question
denied. So ordered with costs against the petitioner and appellee.
Pablo, Bengzon, Montemayor, Jugo and Labrador, JJ., concur.

Separate Opinions
BAUTISTA ANGELO, J., dissenting:
I dissent. In my opinion the will in question has substantially complied with the
formalities of the law and, therefore, should be admitted to probate . It appears that
the will was signed by the testator and was attested by three instrumental
witnesses, not only at the bottom, but also on the left-hand margin. The witnesses
testified not only that the will was signed by the testator in their presence and in
the presence of each other but also that when they did so, the attestation clause
was already written thereon. Their testimony has not been contradicted. The only
objection set up by the oppositors to the validity of the will is the fact that the
signatures of the instrumental witnesses do not appear immediately after the
attestation clause.
This objection is too technical to be entertained. In the case of Abangan vs.
Abangan, (40 Phil., 476), this court said that when the testamentary dispositions
"are wholly written on only one sheet signed at the bottom by the testator and three
witnesses (as the instant case),their signatures on the left margin of said sheet

would be completely purposeless." In such a case, the court said, the requirement
of the signatures on the left hand margin was not necessary because the purpose of
the law which is to avoid the substitution of any of the sheets of the will, thereby
changing the testator's dispositions has already been accomplished. We may say
the same thing in connection with the will under consideration because while the
three instrumental witnesses did not sign immediately by the majority that it may
have been only added on a subsequent occasion and not at the uncontradicted
testimony of said witnesses to the effect that such attestation clause was already
written in the will when the same was signed.
The following observation made by this court in the Abangan case is very fitting:
The object of the solemnities surrounding the execution of wills is to close the
door against bad faith and fraud to avoid substitution of wills and testaments
and to guaranty their truth and authenticity. Therefore the laws on this
subject should be interpreted in such a way as to attain these primordial
ends. But, on the other hand, also one must not lose sight of the fact that it i
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 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. (supra)
We should not also overlook the liberal trend of the New Civil Code in the matter of
interpretation of wills, the purpose of which, in case of doubt, is to give such
interpretation that would have the effect of preventing intestacy (article 788 and
791, New Civil Code)
I am therefore of the opinion that the will in question should be admitted to probate.
Feria, J., concurs.

TUASON, J., dissenting:

I cuncur in Mr. Justice Bautista's dissenting opinion and may add that the majority
decision erroneously sets down as a fact that the attestation clause was no signed
when the witnesses signatures appear on the left margin and the real and only
question is whether such signatures are legally sufficient.
The only answers, in our humble opinion, is yes. The law on wills does not provide
that the attesting witness should sign the clause at the bottom. In the absence of
such provision, there is no reason why signatures on the margin are not good. A
letter is not any the less the writter's simply because it was signed, not at the
conventional place but on the side or on top.

G.R. No. L-13431

November 12, 1919

In
re
will
of
Ana
Abangan.
GERTRUDIS
ABANGAN, executrix-appellee,
vs.
ANASTACIA ABANGAN, ET AL., opponents-appellants.
Filemon
Sotto
M. Jesus Cuenco for appellee.

for

appellants.

AVANCEA, J.:
On September 19, 1917, the Court of First Instance of Cebu admitted to probate Ana
Abangan's will executed July, 1916. From this decision the opponent's appealed.
Said document, duly probated as Ana Abangan's will, consists of two sheets, the
first of which contains all of the disposition of the testatrix, duly signed at the
bottom by Martin Montalban (in the name and under the direction of the testatrix)
and by three witnesses. The following sheet contains only the attestation clause
duly signed at the bottom by the three instrumental witnesses. Neither of these
sheets is signed on the left margin by the testatrix and the three witnesses, nor
numbered by letters; and these omissions, according to appellants' contention, are
defects whereby the probate of the will should have been denied. We are of the
opinion that the will was duly admitted to probate.
In requiring that each and every sheet of the will should also be signed on the left
margin by the testator and three witnesses in the presence of each other, Act No.
2645 (which is the one applicable in the case) evidently has for its object (referring
to the body of the will itself) to avoid the substitution of any of said sheets, thereby
changing the testator's dispositions. But when these dispositions are wholly written
on only one sheet signed at the bottom by the testator and three witnesses (as the
instant case), their signatures on the left margin of said sheet would be completely
purposeless. In requiring this signature on the margin, the statute took into
consideration, undoubtedly, the case of a will written on several sheets and must
have referred to the sheets which the testator and the witnesses do not have to sign
at the bottom. A different interpretation would assume that the statute requires that
this sheet, already signed at the bottom, be signed twice. We cannot attribute to the
statute such an intention. As these signatures must be written by the testator and
the witnesses in the presence of each other, it appears that, if the signatures at the
bottom of the sheet guaranties its authenticity, another signature on its left margin
would be unneccessary; and if they do not guaranty, same signatures, affixed on
another part of same sheet, would add nothing. We cannot assume that the statute
regards of such importance the place where the testator and the witnesses must
sign on the sheet that it would consider that their signatures written on the bottom

do not guaranty the authenticity of the sheet but, if repeated on the margin, give
sufficient security.
In requiring that each and every page of a will must be numbered correlatively in
letters placed on the upper part of the sheet, it is likewise clear that the object of
Act No. 2645 is to know whether any sheet of the will has been removed. But, when
all the dispositive parts of a will are written on one sheet only, the object of the
statute disappears because the removal of this single sheet, although unnumbered,
cannot be hidden.
What has been said is also applicable to the attestation clause. Wherefore, without
considering whether or not this clause is an essential part of the will, we hold that in
the one accompanying the will in question, the signatures of the testatrix and of the
three witnesses on the margin and the numbering of the pages of the sheet are
formalities not required by the statute. Moreover, referring specially to the signature
of the testatrix, we can add that same is not necessary in the attestation clause
because this, as its name implies, appertains only to the witnesses and not to the
testator since the latter does not attest, but executes, the will.
Synthesizing our opinion, we hold that in a will consisting of two sheets the first of
which contains all the testamentary dispositions and is signed at the bottom by the
testator and three witnesses and the second contains only the attestation clause
and is signed also at the bottom by the three witnesses, it is not necessary that
both sheets be further signed on their margins by the testator and the witnesses, or
be paged.
The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore the laws on this subject should be
interpreted in such a way as to attain these primordal 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 frustative
of the testator's last will, must be disregarded. lawphil.net
As another ground for this appeal, it is alleged the records do not show that the
testarix knew the dialect in which the will is written. But the circumstance appearing
in the will itself that same was executed in the city of Cebu and in the dialect of this
locality where the testatrix was a neighbor is enough, in the absence of any proof to
the contrary, to presume that she knew this dialect in which this will is written.
For the foregoing considerations, the judgment appealed from is hereby affirmed
with costs against the appellants. So ordered.
G.R. No. L-40804 January 31, 1978

ROSARIO FELICIANO VDA. DE RAMOS, MIGUEL DANILA, RAYMUNDO A.

DANILA, CONSOLACION SANTOS, MIGUEL G. DANILA, AMOR DANILA,
MOISES MARTINEZ, MIGUELA GAVINO, MELITON NISTA, PRIMITIVA NISTA,
HEIRS OF DANIEL NISTA, MOISES NISTA, DOMINGO NISTA and ADELAIDA
NISTA, petitioners,
vs.
COURT OF APPEALS, MARCELINA (MARTINA) GUERRA and THE HEIRS OF
BUENAVENTURA GUERRA,respondents.
Ernesto C. Hidalgo for petitioners.
Romulo S. Brion & Florentino M. Poonin for private respondents.

GUERRERO, J.:
Appeal by way of certiorari of the decision 1 of the Court of Appeals in CA-G.R. No.
49915-R, entitled "Adelaida Nista Petitioner-appellee, versus Buenaventura Guerra,
et al., Oppositors -Appellants, " denying and disallowing the probate of the second
last will and codicil of the late Eugenia Danila previously probated by the Court of
First Instance of Laguna Branch III at San Pablo City.
The facts are rotated in the appealed decision. the pertinent portions of which state:
It appears that on June 2, 1966, Adelaida Nista who claimed to be one
of the instituted heirs, filed a petition for the probate of the alleged will
and testament dated March 9, 1963 (Exhibit H) and codicil dated April
18, 1963 (Exhibit L) of the late Eugenia Danila who died on May 21,
1966. The petitioner prayed that after due notice and proper hearing,
the alleged will and codicil be probates and allowed and that she or
any other person be appointed as administrator of the testatrix's
estate. She also prayed that in case no opposition thereto be
interposed and the value of the estate be less than P10,000.00, said
estate be summarily settled in accordance with the Rules.
Buenaventura and Marcelina (Martina) both surnamed Guerra filed an
opposition on July 18, 1966 and an amended opposition on August 19,
1967, to the petition alleging among others that they are the legally
adopted son and daughter of the late spouses Florentino Guerra and
Eugenia Danila (Exhibit 1); that the purported will and codicil subject of
the petition (Exhibits H and L) were procured through fraud and undue
influence; that the formalities requited by law for the execution of a will
and codicil have not been complied with as the same were not properly
attested to or executed and not expressing the free will and deed of
the purported testatrix; that the late Eugenia Danila had already
executed on November 5, 1951 her last will and testament (Exhibit 3)

which was duly probated (Exhibit 4) and not revoked or annulled during
the lifetime of the testatrix, and that the petitioner is not competent
and qualified to act as administration of the estate.
On November 4, 1968, the petitioner and the oppositors, assisted by
their respective counsels, entered into a Compromise Agreement with
the following terms and conditions, thus:
1. That oppositors Buenaventura Guerra and Marcelina (Martina)
Guerra are the legally adopted son and daughter, respectively, of the
deceased spouses, Florentino Guerra and Eugenia Manila;
2. That Florentino Guerra pre-deceased Eugenia Danila that Eugenia
Danila died on May 21, 1966, at San Pablo City, but during her lifetime,
she had already sold, donated or disposed of all her properties, some
of which to Marcelina Martina Guerra, as indicated and confirmed in
paragraph 13 of the Complaint in Civil Case No. SP620,
entitled Marcelina Guerra versus Adelaida Nista, et al., and Which We
hereby 'likewise admit and confirm;
3. That, however, with respect to the parcel of riceland covered by TCT
No. T-5559 of the Register of Deeds of San Pablo City, which oppositors
believe to be the estate left and undisposed of at the time of the death
of the owner thereof, Eugenia Danila it now appears that there is a
Deed of Donation covering the same together with another parcel of
coconut land situated at Barrio San Ignacio, San Pablo City, with an
area of 19,905 sq.m., and covered by Tax Declaration No. 31286,
executed by the late Eugenia Danila in favor of Adelaida Nista, as per
Doc. No. 406, Page No. 83, Series of 1966 under Notarial Register III of
Notary Public Pio Aquino of San Pablo city;
4. That inasmuch as the above-mentioned parcel of coconut and has
been earlier donated inter vivos and validly conveyed on November 15,
1965 by the late Eugenia Danila to Marcelina (Martina) Guerra as
shown by Doc. No. 237, Page No. 49, Series of 1965, under Notarial
Register XV of Notary Public Atty. Romulo S. Brion of San Pablo City, the
inclusion of said parcel in the subsequent donation to Adelaida Nista is
admittedly considered a mistake and of no force and effect and will in
no way prejudice the ownership and right of Marcelina Martina Guerra
over the said parcel; that as a matter of fact Whatever rights and
interests Adelaida Nista has or may still have thereon are already
considered waived and renounced in favor of Marcelina Martina Guerra;
5. That in view of the fact that the riceland mentioned in paragraph 3
of the foregoing appears to have already been disposed of by Eugenia
Danila in favor of petitioner Adelaida Nista which the parties hereto do
not now contest, there is therefore no more estate left by the said

deceased Eugenia Danila to he disposed of by the will sought to be

probated in this proceedings; that consequently, and for the sake of
peace and harmony money among the relations and kins and adopted
children of the deceased Eugenia Danila and with the further aim of
settling differences among themselves, the will and codicil of Eugenia
Danila submitted to this Honorable Court by the petitioner for probate,
are considered abrogated and set aside;
6. That as the late Eugenia Danila has incurred debts to private
persons during her lifetime, which in addition to the burial and
incidental expenses amounts to SIX THOUSAND EIGHT HUNDRED
PESOS (P6,800.00) her adopted daughter, Marcelina (Martina) Guerra
is now determined to settle the same, but herein petitioner Adelaida
Nista hereby agrees to contribute to Marcelina (Martina) Guerra for the
settlement of the said indebtedness in the amount of THREE
THOUSAND FOUR HUNDRED PESOS (P3,400.00), Philippine Currency,
the same to be delivered by Adelaida Nista to Marcelina (Martina)
Guerra at the latter's residence at Rizal Avenue, San Pablo City, on or
about February 28, 1969;
7. That should there be any other property of the deceased Eugenia
Danila that may later on be discovered to be undisposed of as yet by
Eugenia Danila during her lifetime, the same should be considered as
exclusive property of her adopted children and heirs, Buenaventura
Guerra and Marcelina (Martina) Guerra and any right of the petitioner
and signatories hereto, with respect to said property or properties,
shall be deemed waived and renounced in favor of said Buenaventura
and Marcelina (Martina) Guerra; and
8. That with the exception of the foregoing agreement, parties hereto
waived and renounce further claim against each other, and the aboveentitled case. (Exh. 6)
This Agreement was approved by the lower court in a judgment
readings as follows:
WHEREFORE, said compromise agreement, being not contrary to public
policy, law and moral, the same is hereby approved and judgment is
hereby rendered in accordance with the terms and conditions set forth
in the above- quoted compromise agreement, which is hereby made an
integral part of the dispositive portion of this decision, and the parties
are strictly enjoined to comply with the same. (Exh. 7)
On November 16, 1968, Rosario de Ramos, Miguel Danila Felix Danila
Miguel Gavino Amor Danila Consolacion Santos and Miguel Danila son
of the late Fortunato Danila filed a motion for leave to intervene as copetitioners alleging that being instituted heirs or devisees, they have

rights and interests to protect in the estate of the late Eugenia Danila
They also filed a reply partly admitting and denying the material
allegations in the opposition to the petition and alleging among other
things, that oppositors repudiated their institution as heirs and
executors when they failed to cause the recording in the Register of
Deeds of San Pablo City the will and testament dated November 5,
1951 (Exhibit 3) in accordance with the Rules and committed acts of
ingratitude when they abandoned the testatrix and denied her support
after they managed, through fraud and undue influence, to secure the
schedule of partition dated January 15, 1962. The Intervenors prayed
for the probate and/or allowance of the will and codicil (Exhibits H and
L), respectively and the appointment of any of them in as administrator
of said estate.
On December 6, 1968, the intervenors also filed a motion for new trial
and/or re-hearing and/or relief from judgment and to set aside the
judgment based on compromise dated November 5, 1968. The
oppositors interposed an opposition to the motion to which the
intervenors filed their reply.
The lower court resolved the motions in an order the dispositive
portion reading, thus:
FOR ALL THE FOREGOING the Court hereby makes the following
dispositions
(1) Movants Rosario de Ramos, Miguel C. Danila Miguela Gavino Amor
Danila Consolacion Santos, Miguel A. Danila and Raymundo Danila are
allowed and admitted to intervene to this proceeding as Party
Petitioners; and likewise admitted in their reply to the amended
opposition of November 11, 1968;
(2) The compromise agreement dated October 15, 1968 by and
between Petitioner Adelaida Nista and oppositors Buenaventura Guerra
and Marcelina Guerra Martina is disapproved, except as regards their
respective lawful rights in the subject estate; and, accordingly, the
judgment on compromise rendered by this Court on November 5, 1968
is reconsidered and set aside; and
(3) The original Petition and amended opposition to probate of the
alleged will and codicil stand.
xxx xxx xxx
The lower court also denied the motion for the appointment of a
special administrator filed by the intervenors.

xxx xxx xxx

A motion for reconsideration of the foregoing order was filed by the
intervenors co-petitioners but the motion was denied.
xxx xxx xxx
On February 9, 1971, a motion for the substitution of Irene, Crispina,
Cristina Casiano, Edilberto Felisa, Guerra in place of their father, the
oppositor Buenaventura Guerra who died on January 23, 1971, was
filed and granted by the lower court.
After trial on the merits, the lower court rendered its decision dated July 6, 1971
allowing the probate of the wilt In that decision, although two of the attesting
witness Odon Sarmiento and Rosendo Paz, testified that they did not see the
testatrix Eugenia Danila sign the will but that the same was already signed by her
when they affixed their own signatures thereon, the trial court gave more weight
and ment to the .'straight-forward and candid" testimony of Atty. Ricardo Barcenas,
the Notary Public who assisted in the execution of the wilt that the testatrix and the
three (3) instrumental witnesses signed the will in the presence of each other, and
that with respect to the codicil the same manner was likewise observed as
corroborated to by the testimony of another lawyer, Atty. Manuel Alvero who was
also present during the execution of the codicil.
The dispositive portion of the decision reads:
WHEREFORE, it appearing that the late Eugenia Danila had
testamentary capacity when she executed the will, Exh. H., and the
codicil Exh. L, and that said will and codicil were duly signed by her
and the three attesting witnesses and acknowledged before a Notary
Public in accordance with the formalities prescribed by law, the said
will and codicil are hereby declared probated. No evidence having been
adduced regarding the qualification and fitness of any of the
intervenors- co-petitioners to act as executors, the appointment of
executors of the will and codicil is held pending until after due hearing
on the matter.
SO ORDERED.
Oppositors Marcelina Guam and the heirs of Buenaventura Guam appealed the
foregoing decision to the Court of Appeals The latter court, in its derision dated May
12, 1975 ruled that the lower court acted correctly in setting aside its judgment
approving the Compromise Agreement and in allowing the intervenor petitioners to
participate in the instant probate proceedings; however, it disallowed the probate of
the will on the that the evidence failed to establish that the testatrix Eugenia Danila
signed her will in the presence of the instrumental witness in accordance with

Article 805 of the Civil Code, as testified to by the two surviving instrumental
witnesses.
In this present appeal petitioners vigorously insists on constitutional grounds the
nullity of the decision of respondent court but We deem it needless to consider the
same as it is not necessary in resolving this appeal on the following assigned errors:
(A) THE COURT OF APPEALS ERRED GRAVELY IN NOT HAVING GIVEN
WEIGHT TO THE MANIFESTATION CLAUSES IN THE TESTAMENT AND
CODICIL ANNEX B (PETITION) AND INSTEAD IT GAVE CREDENCE TO THE
TESTIMONIES OR BIASED WITNESSES OVER THEIR OWN ATTESTATION
CLAUSES AND THE TESTIMONIAL EVIDENCE AND NOTARIAL
ACKNOWLEDGEMENT OF THE NOTARY PUBLIC; AND
(B) THAT THE COURT OF APPEALS ERRED IN HAVING DENIED THE
PROBATE OF THE WILL AND CODICIL DESPITE CONVINCING EVIDENCE
FOR THEIR ALLOWANCE.
We reverse the judgment of the Court of Appeals and restore the decision of the
trial court allowing probate of the will and codicil in question.
The main point in controversy here is whether or not the last testament and its
accompanying codicil were executed in accordance with the formalities of the law,
considering the complicated circumstances that two of the attesting witnesses
testified against their due execution while other non-subscribing witnesses testified
to the contrary.
Petitioners argue that the attestation clauses of the will and codicil which were
signed by the instrumental witnesses are admissions of due execution of the deeds,
thus, preventing the said witnesses from prevaricating later on by testifying against
due execution. Petitioners further maintain that it is error for respondent court to
give credence to the testimony of the biased witnesses as against their own
attestation to the fact of due execution and over the testimonial account of the
Notary Public who was also present during the execution and before whom right
after, the deeds were acknowledged.
Private respondents, on the other hand reiterate in their contention the declaration
of the two surviving witnesses, Odon Sarmiento and Rosendo Paz, that the win was
not signed by the testatrix before their presence, which is strengthened by two
photographic evidence showing only the two witnesses in the act of signing, there
being no picture of the same occasion showing the testatrix signing the will.
Respondent court holds the view that where there was an opportunity to take
pictures it is not understandable why pictures were taken of the witnesses and not
of the testatrix. It concludes that the absence of the latter's picture to complete the
evidence belies the testimony of Atty. Barcenas that the testatrix and the witnesses
did sign the will and the codicil in the presence of each other.

The oppositors' argument is untenable. There is ample and satisfactory evidence to

convince us that the will and codicil were executed in accordance with the
formalities required by law. It appears positively and convincingly that the
documents were prepared by a lawyer, Atty. Manuel Alvero The execution of the
same was evidently supervised by his associate, Atty. Ricardo Barcenas and before
whom the deeds were also acknowledged. The solemnity surrounding the execution
of a will is attended by some intricacies not usually within the comprehension of an
ordinary layman. The object is to close the door against bad faith and fraud, to
avoid substitution of the will and testament, and to guarantee their truth and
authenticity. 2 If there should be any stress on the participation of lawyers in the
execution of a wig, other than an interested party, it cannot be less than the
exercise of their primary duty as members of the Bar to uphold the lofty purpose of
the law. There is no showing that the above-named lawyers had been remiss in their
sworn duty. Consequently, respondent court failed to consider the presumption of ty
in the execution of the questioned documents. There were no incidents brought to
the attention of the trial court to arouse suspicion of anomaly. While the opposition
alleged fraud and undue influence, no evidence was presented to prove their
occurrence. There is no question that each and every page of the will and codicil
carry the authentic signatures of Eugenia Danila and the three (3) attesting
witnesses. Similarly, the attestation claim far from being deficient, were properly
signed by the attesting witnesses. Neither is it disputed that these witnesses took
turns in signing the will and codicil in the presence of each other and the testatrix.
Both instruments were duly acknowledged before a Notary Public who was all the
time present during the execution.
The presumption of regularity can of course be overcome by clear and convincing
evidence to the contrary, but not easily by the mere expediency of the negative
testimony of Odon Sarmiento and Rosendo Paz that they did not see the testatrix
sign the will. A negative testimony does not enjoy equal standing with a positive
assertion, and faced with the convincing appearance of the will, such negative
statement must be examined with extra care. For in this regard
It has also been held that the condition and physical appearance of a
questioned document constitute a valuable factor which, if correctly
evaluated in the light of surrounding circumstances, may help in
determining whether it is genuine or forged. Subscribing witnesses
may forget or exaggerating what they really know, saw, heard or did;
they may be biased and, therefore, tell only half-truths to mislead the
court or favor one party to the prejudice of the others. This cannot be
said of the condition and Physical appearance of the questioned
document. Both, albeit silent, will reveal the naked truth, hiding
nothing, forgetting nothing, and exaggerating nothing. 3
Unlike other deeds, ordinary wills by necessity of law must contain an attestation
clause Which, significantly is a separate memorandum or record of the facts
surrounding that the conduct of execution. Once signed by the attesting witnesses,
it that compliance with the indispensable legal formalities had been observed. This

Court had previously hold that the attestation clause basically contracts the
pretense of undue ex execution which later on may be made by the attesting
witnesses. 4 In the attestation clause, the witnesses do not merely attest to the
signature of the testatrix but also to the proper execution of the will, and their
signature following that of the testatrix show that they have in fact at not only to
the genuineness of the testatrix's signature but also to the due execution of the will
as embodied in the attention clause. 5 By signing the wilt the witnesses impliedly to
the truth of the facts which admit to probate, including the sufficiency of execution,
the capacity of the testatrix, the absence of undue influence, and the like. 6
In this jurisdiction, all the attesting witness to a will if available, must be called to
prove the wilt Under this circumstance, they become "forced witnesses" " and their
declaration derogatory to the probate of the will need not bind the proponent
hence, the latter may present other proof of due exemption even if contrary to the
testimony of or all of the at, testing witness. 7 As a rule, if any or all of the
submitting witness testify against the due execution of the will, or do not remember
having attested to it, or are otherwise of doubtful ability, the will may, nevertheless,
be allowed if the court is satisfied from the testimony of other witness and from all
the evidence presented that the will was executed and attested in the manner by
law. 8 Accordingly, although the subscribing witnesses to a contested will are the
best witness in connection with its due execution, to deserve full credit, their
testimony must be reasonable, and unbiased; if otherwise it may be overcome by
any competent evidence, direct or circubstantial. 9
In the case at bar, the s bear a disparity in the quality of the testimonies of Odon
Sarmiento and Rosendo Paz on one hand, and the Notary Public, Atty. Ricardo A.
Barcenas, on the other. The testimony of Odon Sarmiento was contradicted by his
own admission. Though his admission to the effect that "when Eugenia Danila
signed the testament (he) and the two other attesting witnesses Rosendo Paz and
Calixto Azusada were present" (t.s.n., Feb. 12, 1970, p. 115) was made
extrajudicially, it was not squarely refuted when inquired upon during the trial.
With respect to the testimony of Rosendo Paz, it had been refuted by the declaration
of Atty. Ricardo A. Barcenas. The records show that this attesting witness was
fetched by Felix Danila from his place of work in order to act as witness to a wilt
Rosendo Paz did not know what the document he signed was all about. Although he
performed his function as an attesting witness, his participation was rather passive.
We do not expect, therefore, that his testimony, "half-hearted" as that of Odon
Sarmiento, be as candid and complete as one proceeding from a keen mind fully
attentive to the details of the execution of the deeds. Quite differently, Atty. Ricardo
A. Barcenas, more than a direct witness himself, was Purposely there to oversee the
accomplishment of the will and codicil. His testimony is an account of what he
actually heard and saw during the conduct of his profession. There is no evidence to
show that this lawyer was motivated by any material interest to take sides or that
his statement is truth perverted.

It has been regarded that the function of the Notary Public is, among others, to
guard against any illegal or immoral arrangements in the execution of a will. 10 In
the absence of any showing of self-interest that might possibly have warped his
judgment and twisted his declaration, the intervention of a Notary Public, in his
professional capacity, in the execution of a will deserves grave consideration. 11 An
appraise of a lawyer's participation has been succinctly stated by the Court
inFernandez v. Tantoco, supra, this wise:
In weighing the testimony of the attesting witnesses to a will, his
statements of a competent attorney, who has been charged with the
responsibility of seeing to the proper execution of the instrument, is
entitled to greater weight than the testimony of a person casually
called to anticipate in the act, supposing of course that no motive is
revealed that should induce the attorney to prevaricate. The reason is
that the mind of the attorney being conversant of the instrument, is
more likely to become fixed on details, and he is more likely than other
persons to retain those incidents in his memory.
One final point, the absence of a photograph of the testator Eugenia Danila in the
act of signing her will. The fact that the only pictures available are those which show
the Witnesses signing the will in the presence of the testatrix and of each other
does not belie the probability that the testatrix also signed the will before the
presence of the witnesses. We must stress that the pictures are worthy only of what
they show and prove and not of what they did not speak of including the events
they failed to capture. The probate of a will is a proceeding not embued with
adverse character, wherein courts should relax the rules on evidence "to the end
that nothing less than the best evidence of which the matter is susceptible" should
be presented to the court before a reported will may be probated or denied
probate. 12
We find here that the failure to imprint in photographs all the stages in the
execution of the win does not serve any persuasive effect nor have any evidentiary
value to prove that one vital and indispensable requisite has not been acted on.
Much less can it defeat, by any ordinary or special reason, the presentation of other
competent evidence intended to confirm a fact otherwise existent but not confirmed
by the photographic evidence. The probate court having satisfied itself that the win
and codicil were executed in accordance with the formalities required by law, and
there being no indication of abuse of discretion on its part, We find no error
committed or any exceptional circumstance warranting the subsequent reversal of
its decision allowing the probate of the deeds in question.
WHEREFORE, the decision of respondent Court of Appeals is hereby reversed in so
far its it disallowed the probate of the will and codicil. With costs against
respondents.
SO ORDERED.

Teehankee (Chairman), Makasiar, Muoz Palma and Fernandez, JJ., concur.

Footnotes
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
(Tagapagmana)

E.

IGSOLO

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
address:
500
Sampaloc,
Manila
Res.
Issued at Manila on March 10, 1981.

E.
San
Cert.

Diego
No.

IGSOLO
St.
A-7717-37

QUIRINO
address:
1228-Int.
Pandacan,
Manila
Res.
Issued at Manila on Jan. 21, 1981

3,
Cert.

No.

LAMBERTO
C.
address:
Avenue
2,
Blcok
Lot
61,
San
Gabriel,
G.MA.,
Cavite
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981
JUANITO
address:
City
City
of
Manila
Issued at Manila on March 2, 1981.

Res.

Court
Cert.

No.

AGRAVA
Kahilum
A-458365

LEAO
7,
Res.

ESTRERA
Compound,
A574829

Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng

Maynila.
(Sgd.)
PETRONIO Y. BAUTISTA
Doc.
No. 1232 ;
Page
No. 86 ;
Until
Book
No. 43 ;
Series of 1981 TAN # 1437-977-81

NOTARIO
PUBLIKO
Dec.
31,
1981
PTR-152041-1/2/81-Manila

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. Sioca 13 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. 15 In 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 inSingson 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 lefthand 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) Justices 38 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 ngayong10 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.
G.R. No. 74695 September 14, 1993
In the Matter of the Probate of the Last Will and Testament of the
Deceased
Brigido
Alvarado,
CESAR
ALVARADO, petitioner,
vs.
HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA. ROSARIO
QUETULIO LOSA and HON. LEONOR INES LUCIANO, Associate Justices,
Intermediate Appellate Court, First Division (Civil Cases), and BAYANI MA.
RINO, respondents.
Vicente R. Redor for petitioner.
Bayani Ma. Rino for and in his own behalf.

BELLOSILLO, J.:
Before us is an appeal from the Decision dated 11 April 1986 1 of the First Civil
Cases Division of the then Intermediate Appellate Court, now Court of Appeals,
which affirmed the Order dated 27 June 1983 2 of the Regional Trial Court of Sta.
Cruz, Laguna, admitting to probate the last will and testament 3 with codicil 4 of the
late Brigido Alvarado.
On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will
entitled "Huling Habilin" wherein he disinherited an illegitimate son (petitioner) and
expressly revoked a previously executed holographic will at the time awaiting
probate before Branch 4 of the Regional Trial Court of sta. Cruz, Laguna.
As testified to by the three instrumental witnesses, the notary public and by private
respondent who were present at the execution, the testator did not read the final
draft of the will himself. Instead, private respondent, as the lawyer who drafted the
eight-paged document, read the same aloud in the presence of the testator, the
three instrumental witnesses and the notary public. The latter four followed the
reading with their own respective copies previously furnished them.

Meanwhile, Brigido's holographic will was subsequently admitted to probate on 9

December 1977. On the 29th day of the same month, a codicil entitled "Kasulatan
ng Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling Habilin na may Petsa
Nobiembre 5, 1977 ni Brigido Alvarado" was executed changing some dispositions
in the notarial will to generate cash for the testator's eye operation. Brigido was
then suffering from glaucoma. But the disinheritance and revocatory clauses were
unchanged. As in the case of the notarial will, the testator did not personally read
the final draft of the codicil. Instead, it was private respondent who read it aloud in
his presence and in the presence of the three instrumental witnesses (same as
those of the notarial will) and the notary public who followed the reading using their
own copies.
A petition for the probate of the notarial will and codicil was filed upon the testator's
death on 3 January 1979 by private respondent as executor with the Court of First
Instance, now Regional Trial Court, of Siniloan, Laguna. 5Petitioner, in turn, filed an
Opposition on the following grounds: that the will sought to be probated was not
executed and attested as required by law; that the testator was insane or otherwise
mentally incapacitated to make a will at the time of its execution due to senility and
old age; that the will was executed under duress, or influence of fear and threats;
that it was procured by undue and improper pressure and influence on the part of
the beneficiary who stands to get the lion's share of the testator's estate; and lastly,
that the signature of the testator was procured by fraud or trick.
When the oppositor (petitioner) failed to substantiate the grounds relied upon in the
Opposition, a Probate Order was issued on 27 June 1983 from which an appeal was
made to respondent court. The main thrust of the appeal was that the deceased
was blind within the meaning of the law at the time his "Huling Habilin" and the
codicil attached thereto was executed; that since the reading required by Art. 808 of
the Civil Code was admittedly not complied with, probate of the deceased's last will
and codicil should have been denied.
On 11 April 1986, the Court of Appeals rendered the decision under review with the
following findings: that Brigido Alvarado was not blind at the time his last will and
codicil were executed; that assuming his blindness, the reading requirement of Art.
808 was substantially complied with when both documents were read aloud to the
testator with each of the three instrumental witnesses and the notary public
following the reading with their respective copies of the instruments. The appellate
court then concluded that although Art. 808 was not followed to the letter, there
was substantial compliance since its purpose of making known to the testator the
contents of the drafted will was served.
The issues now before us can be stated thus: Was Brigido Alvarado blind for purpose
of Art, 808 at the time his "Huling Habilin" and its codicil were executed? If so, was
the double-reading requirement of said article complied with?
Regarding the first issue, there is no dispute on the following facts: Brigido Alvarado
was not totally blind at the time the will and codicil were executed. However, his

vision on both eyes was only of "counting fingers at three (3) feet" by reason of the
glaucoma which he had been suffering from for several years and even prior to his
first
consultation
with
an
eye
specialist
on
14 December 1977.
The point of dispute is whether the foregoing circumstances would qualify Brigido as
a "blind" testator under Art. 808 which reads:
Art. 808. If the testator is blind, the will shall be read to him twice;
once, by one of the subscribing witnesses, and again, by the notary
public before whom the will is acknowledged.
Petitioner contends that although his father was not totally blind when the will and
codicil were executed, he can be so considered within the scope of the term as it is
used in Art. 808. To support his stand, petitioner presented before the trial court a
medical certificate issued by Dr. Salvador R. Salceda, Director of the Institute of
Opthalmology (Philippine Eye Research Institute), 6 the contents of which were
interpreted in layman's terms by Dr. Ruperto Roasa, whose expertise was admitted
by private respondent. 7 Dr. Roasa explained that although the testator could
visualize fingers at three (3) feet, he could no longer read either printed or
handwritten matters as of 14 December 1977, the day of his first consultation. 8
On the other hand, the Court of Appeals, contrary to the medical testimony, held
that the testator could still read on the day the will and the codicil were executed
but chose not to do so because of "poor eyesight." 9 Since the testator was still
capable of reading at that time, the court a quo concluded that Art. 808 need not be
complied with.
We agree with petitioner in this respect.
Regardless of respondent's staunch contention that the testator was still capable of
reading at the time his will and codicil were prepared, the fact remains and this was
testified to by his witnesses, that Brigido did not do so because of his
"poor," 10 "defective," 11 or "blurred" 12 vision making it necessary for private
respondent to do the actual reading for him.
The following pronouncement in Garcia vs. Vasquez 13 provides an insight into the
scope of the term "blindness" as used in Art. 808, to wit:
The rationale behind the requirement of reading the will to the
testator if he is blind or incapable of reading the will himself (as when
he is illiterate), is to make the provisions thereof known to him, so that
he may be able to object if they are not in accordance with his wishes .
..
Clear from the foregoing is that Art. 808 applies not only to blind testators but also
to those who, for one reason or another, are "incapable of reading the(ir) will(s)."

Since Brigido Alvarado was incapable of reading the final drafts of his will and codicil
on the separate occasions of their execution due to his "poor," "defective," or
"blurred" vision, there can be no other course for us but to conclude that Brigido
Alvarado comes within the scope of the term "blind" as it is used in Art. 808. Unless
the contents were read to him, he had no way of ascertaining whether or not the
lawyer who drafted the will and codicil did so confortably with his instructions.
Hence, to consider his will as validly executed and entitled to probate, it is essential
that we ascertain whether Art. 808 had been complied with.
Article 808 requires that in case of testators like Brigido Alvarado, the will shall be
read twice; once, by one of the instrumental witnesses and, again, by the notary
public before whom the will was acknowledged. The purpose is to make known to
the incapacitated testator the contents of the document before signing and to give
him an opportunity to object if anything is contrary to his instructions.
That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public
and an instrumental witness, it was the lawyer (private respondent) who drafted the
eight-paged will and the five-paged codicil who read the same aloud to the testator,
and read them only once, not twice as Art. 808 requires.
Private respondent however insists that there was substantial compliance and that
the single reading suffices for purposes of the law. On the other hand, petitioner
maintains that the only valid compliance or compliance to the letter and since it is
admitted that neither the notary public nor an instrumental witness read the
contents of the will and codicil to Brigido, probate of the latter's will and codicil
should have been disallowed.
We sustain private respondent's stand and necessarily, the petition must be denied.
This Court has held in a number of occasions that substantial compliance is
acceptable where the purpose of the law has been satisfied, the reason being that
the solemnities surrounding the execution of wills are intended to protect the
testator from all kinds of fraud and trickery but are never intended to be so rigid
and inflexible as to destroy the testamentary privilege. 14
In the case at bar, private respondent read the testator's will and codicil aloud in the
presence of the testator, his three instrumental witnesses, and the notary public.
Prior and subsequent thereto, the testator affirmed, upon being asked, that the
contents read corresponded with his instructions. Only then did the signing and
acknowledgement take place. There is no evidence, and petitioner does not so
allege, that the contents of the will and codicil were not sufficiently made known
and communicated to the testator. On the contrary, with respect to the "Huling
Habilin," the day of the execution was not the first time that Brigido had affirmed
the truth and authenticity of the contents of the draft. The uncontradicted testimony
of Atty. Rino is that Brigido Alvarado already acknowledged that the will was drafted
in accordance with his expressed wishes even prior to 5 November 1977 when Atty.

Rino went to the testator's residence precisely for the purpose of securing his
conformity to the draft. 15
Moreover, it was not only Atty. Rino who read the documents on
5 November and 29 December 1977. The notary public and the three instrumental
witnesses likewise read the will and codicil, albeit silently. Afterwards, Atty. Nonia de
la Pena (the notary public) and Dr. Crescente O. Evidente (one of the three
instrumental witnesses and the testator's physician) asked the testator whether the
contents of the document were of his own free will. Brigido answered in the
affirmative. 16 With four persons following the reading word for word with their own
copies, it can be safely concluded that the testator was reasonably assured that
what was read to him (those which he affirmed were in accordance with his
instructions), were the terms actually appearing on the typewritten documents. This
is especially true when we consider the fact that the three instrumental witnesses
were persons known to the testator, one being his physician (Dr. Evidente) and
another (Potenciano C. Ranieses) being known to him since childhood.
The spirit behind the law was served though the letter was not. Although there
should be strict compliance with the substantial requirements of the law in order to
insure the authenticity of the will, the formal imperfections should be brushed aside
when they do not affect its purpose and which, when taken into account, may only
defeat the testator's will. 17
As a final word to convince petitioner of the propriety of the trial court's Probate
Order and its affirmance by the Court of Appeals, we quote the following
pronouncement in Abangan v. Abangan, 18 to wit:
The object of the solemnities surrounding the execution of wills is to
close the door against bad faith and fraud, to avoid the substitution of
wills and testaments and to guaranty their truth and authenticity.
Therefore the laws on the 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 will, must be disregarded(emphasis supplied).
Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in
his "Huling Habilin" and the codicil attached thereto. We are unwilling to cast these
aside fro the mere reason that a legal requirement intended for his protection was
not followed strictly when such compliance had been rendered unnecessary by the
fact that the purpose of the law, i.e., to make known to the incapacitated testator
the contents of the draft of his will, had already been accomplished. To reiterate,
substantial compliance suffices where the purpose has been served.

WHEREFORE, the petition is DENIED and the assailed Decision of respondent Court
of Appeals dated 11 April 1986 is AFFIRMED. Considering the length of time that this
case has remained pending, this decision is immediately executory. Costs against
petitioner.
SO ORDERED.

G.R. No. 103554 May 28, 1993

TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO,
AUREA CABALLERO, OSCAR LAROSA, HELEN CABALLERO, SANTOS
CABALLERO, PABLO CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA
RAGA, RUPERTO ABAPO, represented herein by his Attorney-in-Fact,
ARMSTICIA * ABAPO VELANO, and CONSESO CANEDA, represented herein
by his heirs, JESUS CANEDA, NATIVIDAD CANEDA and ARTURO
CANEDA, petitioners,
vs.
HON. COURT OF APPEALS and WILLIAM CABRERA, as Special Administrator
of the Estate of Mateo Caballero, respondents.
Palma, Palma & Associates for petitioners.
Emilio Lumontad, Jr. for private respondents.

REGALADO, J.:
Presented for resolution by this Court in the present petition for review
on certiorari is the issue of whether or not the attestation clause contained in the
last will and testament of the late Mateo Caballero complies with the requirements
of Article 805, in relation to Article 809, of the Civil Code.
The records show that on December 5, 1978, Mateo Caballero, a widower without
any children and already in the twilight years of his life, executed a last will and
testament at his residence in Talisay, Cebu before three attesting witnesses,
namely, Cipriano Labuca, Gregorio Cabando and Flaviano Toregosa. The said
testator was duly assisted by his lawyer, Atty. Emilio Lumontad, and a notary public,
Atty. Filoteo Manigos, in the preparation of that last will. 1 It was declared therein,
among other things, that the testator was leaving by way of legacies and devises
his real and personal properties to Presentacion Gaviola, Angel Abatayo, Rogelio
Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of whom
do not appear to be related to the testator. 2
Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition
docketed as Special Proceeding No. 3899-R before Branch II of the then Court of

First Instance of Cebu seeking the probate of his last will and testament. The
probate court set the petition for hearing on August 20, 1979 but the same and
subsequent scheduled hearings were postponed for one reason to another. On May
29, 1980, the testator passed away before his petition could finally be heard by the
probate court. 3 On February 25, 1981, Benoni Cabrera, on of the legatees named in
the will, sough his appointment as special administrator of the testator's estate, the
estimated value of which was P24,000.00, and he was so appointed by the probate
court in its order of March 6, 1981. 4
Thereafter, herein petitioners, claiming to be nephews and nieces of the testator,
instituted a second petition, entitled "In the Matter of the Intestate Estate of Mateo
Caballero" and docketed as Special Proceeding No. 3965-R, before Branch IX of the
aforesaid Court of First Instance of Cebu. On October 18, 1982, herein petitioners
had their said petition intestate proceeding consolidated with Special Proceeding
No. 3899-R in Branch II of the Court of First Instance of Cebu and opposed thereat
the probate of the Testator's will and the appointment of a special administrator for
his estate. 5
Benoni Cabrera died on February 8, 1982 hence the probate court, now known as
Branch XV of the Regional Trial Court of Cebu, appointed William Cabrera as special
administrator on June 21, 1983. Thereafter, on July 20, 1983, it issued an order for
the return of the records of Special Proceeding No. 3965-R to the archives since the
testate proceeding for the probate of the will had to be heard and resolved first. On
March 26, 1984 the case was reraffled and eventually assigned to Branch XII of the
Regional Trial Court of Cebu where it remained until the conclusion of the probate
proceedings. 6
In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners
appeared as oppositors and objected to the allowance of the testator's will on the
ground that on the alleged date of its execution, the testator was already in the
poor state of health such that he could not have possibly executed the same.
Petitioners likewise reiterated the issue as to the genuineness of the signature of
the testator therein. 7
On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary
public Atty. Filoteo Manigos, testified that the testator executed the will in question
in their presence while he was of sound and disposing mind and that, contrary to
the assertions of the oppositors, Mateo Caballero was in good health and was not
unduly influenced in any way in the execution of his will. Labuca also testified that
he and the other witnesses attested and signed the will in the presence of the
testator and of each other. The other two attesting witnesses were not presented in
the probate hearing as the had died by then. 8
On April 5, 1988, the probate court rendered a decision declaring the will in
question as the last will and testament of the late Mateo Caballero, on the
ratiocination that:

. . . The self-serving testimony of the two witnesses of the oppositors

cannot overcome the positive testimonies of Atty. Filoteo Manigos and
Cipriano Labuca who clearly told the Court that indeed Mateo Caballero
executed the Last Will and Testament now marked Exhibit "C" on
December 5, 1978. Moreover, the fact that it was Mateo Caballero who
initiated the probate of his Will during his lifetime when he caused the
filing of the original petition now marked Exhibit "D" clearly
underscores the fact that this was indeed his Last Will. At the start,
counsel for the oppositors manifested that he would want the signature
of Mateo Caballero in Exhibit "C" examined by a handwriting expert of
the NBI but it would seem that despite their avowal and intention for
the examination of this signature of Mateo Caballero in Exhibit "C",
nothing came out of it because they abandoned the idea and instead
presented Aurea Caballero and Helen Caballero Campo as witnesses
for the oppositors.
All told, it is the finding of this Court that Exhibit "C" is the Last Will and
Testament of Mateo Caballero and that it was executed in accordance
with all the requisites of the law. 9
Undaunted by the said judgment of the probate court, petitioners elevated the case
in the Court of Appeals in CA-G.R. CV No. 19669. They asserted therein that the will
in question is null and void for the reason that its attestation clause is fatally
defective since it fails to specifically state that the instrumental witnesses to the will
witnessed the testator signing the will in their presence and that they also signed
the will and all the pages thereof in the presence of the testator and of one another.
On October 15, 1991, respondent court promulgated its decision 10 affirming that of
the trial court, and ruling that the attestation clause in the last will of Mateo
Caballero substantially complies with Article 805 of the Civil Code, thus:
The question therefore is whether the attestation clause in question
may be considered as having substantialy complied with the
requirements of Art. 805 of the Civil Code. What appears in the
attestation clause which the oppositors claim to be defective is "we do
certify that the testament was read by him and the attestator, Mateo
Caballero, has published unto us the foregoing will consisting of THREE
PAGES, including the acknowledgment, each page numbered
correlatively in letters of the upper part of each page, as his Last Will
and Testament, and he has signed the same and every page thereof,
on the spaces provided for his signature and on the left hand margin in
the presence of the said testator and in the presence of each and all of
us (emphasis supplied).
To our thinking, this is sufficient compliance and no evidence need be
presented to indicate the meaning that the said will was signed by the
testator and by them (the witnesses) in the presence of all of them and

of one another. Or as the language of the law would have it that the
testator signed the will "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 not
completely or ideally perfect in accordance with the wordings of Art.
805 but (sic) the phrase as formulated is in substantial compliance with
the requirement of the law." 11
Petitioners moved for the reconsideration of the said ruling of respondent court, but
the same was denied in the latter's resolution of January 14, 1992, 12 hence this
appeal now before us. Petitioners assert that respondent court has ruled upon said
issue in a manner not in accord with the law and settled jurisprudence on the
matter and are now questioning once more, on the same ground as that raised
before respondent court, the validity of the attestation clause in the last will of
Mateo Caballero.
We find the present petition to be meritorious, as we shall shortly hereafter, after
some prefatory observations which we feel should be made in aid of the rationale
for our resolution of the controversy.
1. A will has been defined as a species of conveyance whereby a person is
permitted, with the formalities prescribed by law, to control to a certain degree the
disposition of his estate after his death. 13 Under the Civil Code, there are two kinds
of wills which a testator may execute. 14 the first kind is the ordinary or attested will,
the execution of which is governed by Articles 804 to 809 of the Code. Article 805
requires that:
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 should 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 witness, it

shall be interpreted to them.
In addition, the ordinary will must be acknowledged before a notary public by a
testator and the attesting witness.15 hence it is likewise known as notarial will.
Where the attestator is deaf or deaf-mute, Article 807 requires that he must
personally read the will, if able to do so. Otherwise, he should designate two
persons who would read the will and communicate its contents to him in a
practicable manner. On the other hand, if the testator is blind, the will should be
read to him twice; once, by anyone of the witnesses thereto, and then again, by the
notary public before whom it is acknowledged. 16
The other kind of will is the holographic will, which Article 810 defines as one that is
entirely written, dated, and signed by the testator himself. This kind of will, unlike
the ordinary type, requires no attestation by witnesses. A common requirement in
both kinds of will is that they should be in writing and must have been executed in a
language or dialect known to the testator. 17
However, in the case of an ordinary or attested will, its attestation clause need not
be written in a language or dialect known to the testator since it does not form part
of the testamentary disposition. Furthermore, the language used in the attestation
clause likewise need not even be known to the attesting witnesses. 18 The last
paragraph of Article 805 merely requires that, in such a case, the attestation clause
shall be interpreted to said witnesses.
An attestation clause refers to that part of an ordinary will whereby the attesting
witnesses certify that the instrument has been executed before them and to the
manner of the execution the same. 19 It is a separate memorandum or record of the
facts surrounding the conduct of execution and once signed by the witnesses, it
gives affirmation to the fact that compliance with the essential formalities required
by law has been observed. 20 It is made for the purpose of preserving in a
permanent form a record of the facts that attended the execution of a particular
will, so that in case of failure of the memory of the attesting witnesses, or other
casualty, such facts may still be proved. 21
Under the third paragraph of Article 805, such a clause, the complete lack of which
would result in the invalidity of the will, 22 should state (1) the number of the pages
used upon which the will is written; (2) that the testator signed, or expressly caused
another to sign, the will and every page thereof in the presence of the attesting
witnesses; and (3) that theattesting witnesses witnessed the signing by the testator
of the will and all its pages, and that said witnesses also signed the will and every
page thereof in the presence of the testator and of one another.
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; 23 whereas the subscription of the signature of the testator and the attesting

witnesses is made for the purpose of authentication and identification, and thus
indicates that the will is the very same instrument executed by the testator and
attested to by the witnesses. 24
Further, by attesting and subscribing to the will, the witnesses thereby declare the
due execution of the will as embodied in the attestation clause. 25 The attestation
clause, therefore, provide strong legal guaranties for the due execution of a will and
to insure the authenticity thereof. 26 As it appertains only to the witnesses and not to
the testator, it need be signed only by them. 27 Where it is left unsigned, it would
result in the invalidation of the will as it would be possible and easy to add the
clause on a subsequent occasion in the absence of the testator and its witnesses. 28
In its report, the Code Commission commented on the reasons of the law for
requiring the formalities to be followed in the execution of wills, in the following
manner:
The underlying and fundamental objectives 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, 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.
This objective is in accord with the modern tendency with respect to
the formalities in the execution of wills. . . . 29
2. An examination of the last will and testament of Mateo Caballero shows that it is
comprised of three sheets all of which have been numbered correlatively, with the
left margin of each page thereof bearing the respective signatures of the testator
and the three attesting witnesses. The part of the will containing the testamentary
dispositions is expressed in the Cebuano-Visayan dialect and is signed at the foot
thereof by the testator. The attestation clause in question, on the other hand, is
recited in the English language and is likewise signed at the end thereof by the
three attesting witnesses hereto. 30 Since it is the proverbial bone of contention, we
reproduce it again for facility of reference:
We, the undersigned attesting Witnesses, whose Residences and postal
addresses appear on the Opposite of our respective names, we do
hereby certify that the Testament was read by him and the testator,
MATEO CABALLERO; has published unto us the foregoing Will
consisting of THREE PAGES, including the Acknowledgment, each page
numbered correlatively in the letters on the upper part of each page,
as his Last Will and Testament and he has the same and every page
thereof, on the spaces provided for his signature and on the left hand
margin, in the presence of the said testator and in the presence of
each and all of us.

It will be noted that Article 805 requires that the witness should both attest and
subscribe to the will in the presence of the testator and of one another. "Attestation"
and "subscription" differ in meaning. Attestation is the act of senses, while
subscription is the act of the hand. The former is mental, the latter mechanical, and
to attest a will is to know that it was published as such, and to certify the facts
required to constitute an actual and legal publication; but to subscribe a paper
published as a will is only to write on the same paper the names of the witnesses,
for the sole purpose of identification. 31
In Taboada vs. Rizal, 32 we clarified that attestation consists in witnessing the
testator's execution of the will in order to see and take note mentally that those
things are done which the statute requires for the execution of a will and that the
signature of the testator exists as a fact. On the other hand, subscription is the
signing of the witnesses' names upon the same paper for the purpose of
identification of such paper as the will which was executed by the testator. As it
involves a mental act, there would be no means, therefore, of ascertaining by a
physical examination of the will whether the witnesses had indeed signed in the
presence of the testator and of each other unless this is substantially expressed in
the attestation.
It is contended by petitioners that the aforequoted attestation clause, in
contravention of the express requirements of the third paragraph of Article 805 of
the Civil Code for attestation clauses, fails to specifically state the fact that the
attesting witnesses the testator sign the will and all its pages in their presence and
that they, the witnesses, likewise signed the will and every page thereof in the
presence of the testator and of each other. We agree.
What is fairly apparent upon a careful reading of the attestation clause herein
assailed is the fact that while it recites that the testator indeed signed the will and
all its pages in the presence of the three attesting witnesses and states as well the
number of pages that were used, the same does not expressly state therein the
circumstance that said witnesses subscribed their respective signatures to the will
in the presence of the testator and of each other.
The phrase "and he has signed the same and every page thereof, on the spaces
provided for his signature and on the left hand margin," obviously refers to the
testator and not the instrumental witnesses as it is immediately preceded by the
words "as his Last Will and Testament." On the other hand, although the words "in
the presence of the testator and in the presence of each and all of us" may, at first
blush, appear to likewise signify and refer to the witnesses, it must, however, be
interpreted as referring only to the testator signing in the presence of the witnesses
since said phrase immediately follows the words "he has signed the same and every
page thereof, on the spaces provided for his signature and on the left hand margin."
What is then clearly lacking, in the final logical analysis , is the statement that the
witnesses signed the will and every page thereof in the presence of the testator and
of one another.

It is our considered view that the absence of that statement required by law is a
fatal defect or imperfection which must necessarily result in the disallowance of the
will that is here sought to be admitted to probate. Petitioners are correct in pointing
out that the aforestated defect in the attestation clause obviously cannot be
characterized as merely involving the form of the will or the language used therein
which would warrant the application of the substantial compliance rule, as
contemplated in the pertinent provision thereon in the Civil Code, to wit:
Art. 809. 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 not proved that the will was in fact executed and
attested in substantial compliance with all the requirements of article
805" (Emphasis supplied.)
While it may be true that the attestation clause is indeed subscribed at the end
thereof and at the left margin of each page by the three attesting witnesses, it
certainly cannot be conclusively inferred therefrom that the said witness affixed
their respective signatures in the presence of the testator and of each other since,
as petitioners correctly observed, the presence of said signatures only establishes
the fact that it was indeed signed, but it does not prove that the attesting witnesses
did subscribe to the will in the presence of the testator and of each other. The
execution of a will is supposed to be one act so that where the testator and the
witnesses sign on various days or occasions and in various combinations, the will
cannot be stamped with the imprimatur of effectivity. 33
We believe that the further comment of former Justice J.B.L. Reyes 34 regarding
Article 809, wherein he urged caution in the application of the substantial
compliance rule therein, is correct and should be applied in the case under
consideration, as well as to future cases with similar questions:
. . . 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 theses 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. (Emphasis ours.)
3. We stress once more that under Article 809, the defects and imperfections must
only be with respect to the form of the attestation or the language employed
therein. Such defects or imperfections would not render a will invalid should it be
proved that the will was really executed and attested in compliance with Article 805.
In this regard, however, the manner of proving the due execution and attestation

has been held to be limited to merely an examination of the will itself without
resorting to evidence aliunde, whether oral or written.
The foregoing considerations do not apply where the attestation clause totally omits
the fact that the attesting witnesses signed each and every page of the will in the
presence of the testator and of each other. 35 In such a situation, the defect is not
only in the form or language of the attestation clause but the total absence of a
specific element required by Article 805 to be specifically stated in the attestation
clause of a will. That is precisely the defect complained of in the present case since
there is no plausible way by which we can read into the questioned attestation
clause statement, or an implication thereof, that the attesting witness did actually
bear witness to the signing by the testator of the will and all of its pages and that
said instrumental witnesses also signed the will and every page thereof in the
presence of the testator and of one another.
Furthermore, the rule on substantial compliance in Article 809 cannot be revoked or
relied on by respondents since it presupposes that the defects in the attestation
clause can be cured or supplied by the text of the will or a consideration of matters
apparent therefrom which would provide the data not expressed in the attestation
clause or from which it may necessarily be gleaned or clearly inferred that the acts
not stated in the omitted textual requirements were actually complied within the
execution of the will. In other words, defects must be remedied by intrinsic evidence
supplied by the will itself.
In the case at bar, contrarily, proof of the acts required to have been performed by
the attesting witnesses can be supplied by only extrinsic evidence thereof, since an
overall appreciation of the contents of the will yields no basis whatsoever from with
such facts may be plausibly deduced. What private respondent insists on are the
testimonies of his witnesses alleging that they saw the compliance with such
requirements by the instrumental witnesses, oblivious of the fact that he is thereby
resorting to extrinsic evidence to prove the same and would accordingly be doing by
the indirection what in law he cannot do directly.
4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence
of views as to which manner of interpretation should be followed in resolving issues
centering on compliance with the legal formalities required in the execution of wills.
The formal requirements were at that time embodied primarily in Section 618 of Act
No. 190, the Code of Civil Procedure. Said section was later amended by Act No.
2645, but the provisions respecting said formalities found in Act. No. 190 and the
amendment thereto were practically reproduced and adopted in the Civil Code.
One view advance the liberal or substantial compliance rule. This was first laid down
in the case of Abangan vs. Abangan, 36 where it was held 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 guarantee their truth
and authenticity. Therefore, the laws on this subject should be interpreted in such a
way as to attain these primordial ends. Nonetheless, it was also emphasized that

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, hence 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. The subsequent cases of Avera vs.
Garcia, 37 Aldaba vs. Roque, 38 Unson vs. Abella, 39 Pecson vs. Coronel, 40 Fernandez
vs. Vergel de Dios, et al., 41 and Nayve vs. Mojal, et al. 42 all adhered to this position.
The other view which advocated the rule that statutes which prescribe the
formalities that should be observed in the execution of wills are mandatory in nature
and are to be strictly construed was followed in the subsequent cases of In the
Matter of the Estate of Saguinsin, 43 In re Will of Andrada, 44 Uy Coque vs. Sioca, 45 In
re Estate of Neumark, 46 and Sano vs. Quintana. 47
Gumban vs. Gorecho, et al., 48 provided the Court with the occasion to clarify the
seemingly conflicting decisions in the aforementioned cases. In said case
of Gumban, the attestation clause had failed to state that the witnesses signed the
will and each and every page thereof on the left margin in the presence of the
testator. The will in question was disallowed, with these reasons therefor:
In support of their argument on the assignment of error abovementioned, appellants rely on a series of cases of this court beginning
with (I)n the Matter of the (E)state of Saguinsin ([1920], 41 Phil., 875),
continuing with In re Will of Andrada [1921], 42 Phil., 180), Uy Coque
vs. Navas L. Sioca [1922], 43 Phil., 405), and In re Estate of Neumark
([1923], 46 Phil., 841), and ending with Sano vs. Quintana([1925], 48
Phil., 506). Appellee counters with the citation of a series of cases
beginning with Abangan vs. Abangan ([1919], 40 Phil., 476), continuing
through Aldaba vs. Roque ([1922], 43 Phil., 378), andFernandez vs.
Vergel de Dios ([1924], 46 Phil., 922), and culminating in Nayve vs.
Mojal and Aguilar([1924], 47 Phil., 152). In its last analysis, our task is
to contrast and, if possible, conciliate the last two decisions cited by
opposing counsel, namely, those of Sano vs. Quintana, supra,
and Nayve vs. Mojal and Aguilar, supra.
In the case of Sano vs. Quintana, supra, it was decided that an
attestation clause which does not recite that the witnesses signed the
will and each and every page thereof on the left margin in the
presence of the testator is defective, and such a defect annuls the will.
The case of Uy Coque vs. Sioca, supra, was cited, but the case
of Nayve vs. Mojal and Aguilar, supra, was not mentioned. In contrast,
is the decision in Nayve vs. Mojal and Aguilar, supra, wherein it was
held that the attestation clause must estate the fact that the testator
and the witnesses reciprocally saw the signing of the will, for such an
act cannot be proved by the mere exhibition of the will, if it is not
stated therein. It was also held that the fact that the testator and the
witnesses signed each and every page of the will can be proved also

by the mere examination of the signatures appearing on the document

itself, and the omission to state such evident facts does not invalidate
the will.
It is a habit of courts to reaffirm or distinguish previous cases; seldom
do they admit inconsistency in doctrine. Yet here, unless aided
impossible to reconcile the Mojal and Quintana decisions. They are
fundamentally at variance. If we rely on one, we affirm. If we rely on
the other, we reverse.
In resolving this puzzling question of authority, three outstanding
points may be mentioned. In the first place, the Mojal, decision was
concurred in by only four members of the court, less than a majority,
with two strong dissenting opinions; the Quintana decision was
concurred in by seven members of the court, a clear majority, with one
formal dissent. In the second place, the Mojal decision was
promulgated in December, 1924, while the Quintana decision was
promulgated in December, 1925; the Quintana decision was thus
subsequent in point of time. And in the third place, the Quintana
decision is believed more nearly to conform to the applicable
provisions of the law.
The right to dispose of property by will is governed entirely by statute.
The law of the case is here found in section 61 of the Code of Civil
Procedure as amended by Act No. 2645, and in section 634 of the
same Code, as unamended. It is in part provided in section 61, as
amended that "No will . . . shall be valid . . . unless . . .." It is further
provided in the same section that "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." Codal section 634 provides that "The will shall be
disallowed in either of the following case: 1. If not executed
and attested as in this Act provided." The law not alone carefully
makes use of the imperative, but cautiously goes further and makes
use of the negative, to enforce legislative intention. It is not within the
province of the courts to disregard the legislative purpose so
emphatically and clearly expressed.
We adopt and reaffirm the decision in the case of Sano vs.
Quintana, supra, and, to the extent necessary, modify the decision in
the case of Nayve vs. Mojal and Aguilar, supra. (Emphases in the
original text).

But after the Gumban clarificatory pronouncement, there were decisions of the
Court that once more appeared to revive the seeming diversity of views that was
earlier threshed out therein. The cases of Quinto vs. Morata, 49Rodriguez vs.
Alcala, 50 Enchevarria vs. Sarmiento, 51 and Testate Estate of Toray 52 went the way of
the ruling as restated in Gumban. But De Gala vs. Gonzales, et al., 53 Rey vs.
Cartagena, 54 De Ticson vs. De Gorostiza, 55 Sebastian vs. Panganiban, 56 Rodriguez
vs. Yap, 57 Grey vs. Fabia, 58 Leynez vs. Leynez, 59 Martir vs. Martir, 60 Alcala vs. De
Villa, 61Sabado
vs.
Fernandez, 62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro, 64 veered away from the
strict interpretation rule and established a trend toward an application of the liberal
view.
The Code Commission, cognizant of such a conflicting welter of views and of the
undeniable inclination towards a liberal construction, recommended the codification
of the substantial compliance rule, as it believed this rule to be in accord with the
modern tendency to give a liberal approach to the interpretation of wills. Said rule
thus became what is now Article 809 of the Civil Code, with this explanation of the
Code Commission:
The present law provides for only one form of executing a will, and that
is, in accordance with the formalities prescribed by Section 618 of the
Code of Civil Procedure as amended by Act No. 2645. The Supreme
Court of the Philippines had previously upheld the strict compliance
with the legal formalities and had even said that the provisions of
Section 618 of the Code of Civil Procedure, as amended regarding the
contents of the attestation clause were mandatory, and noncompliance therewith invalidated the will (Uy Coque vs. Sioca, 43 Phil.
405). These decisions necessarily restrained the freedom of the
testator in disposing of his property.
However, in recent years the Supreme Court changed its attitude and
has become more liberal in the interpretation of the formalities in the
execution of wills. This liberal view is enunciated in the cases
ofRodriguez vs. Yap, G.R. No. 45924, May 18, 1939; Leynez vs. Leynez,
G.R. No. 46097, October 18, 1939; Martir vs. Martir, G.R. No. 46995,
June 21, 1940; and Alcala vs. Villa, G.R. No. 47351, April 18, 1941.
In the above mentioned decisions of our Supreme Court, it has
practically gone back to the original provisions of Section 618 of the
Code of Civil Procedure before its amendment by Act No. 2645 in the
year 1916. To turn this attitude into a legislative declaration and to
attain the main objective of the proposed Code in the liberalization of
the manner of executing wills, article 829 of the Project is
recommended, which reads:
"Art. 829. 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
829." 65
The so-called liberal rule, the Court said in Gil vs. Murciano, 66 "does not offer any
puzzle or difficulty, nor does it open the door to serious consequences. The later
decisions do tell us when and where to stop; they draw the dividing line with
precision. They do not allow evidence aliunde to fill a void in any part of the
document or supply missing details that should appear in the will itself. They only
permit a probe into the will, an exploration into its confines, to ascertain its meaning
or to determine the existence or absence of the requisite formalities of law. This
clear, sharp limitation eliminates uncertainty and ought to banish any fear of dire
results."
It may thus be stated that the rule, as it now stands, is that omissions 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. 67
WHEREFORE, the petition is hereby GRANTED and the impugned decision of
respondent court is hereby REVERSED and SET ASIDE. The court a quo is
accordingly directed to forthwith DISMISS its Special Proceeding No. 3899-R (Petition
for the Probate of the Last Will and Testament of Mateo Caballero) and to REVIVE
Special Proceeding No. 3965-R (In the matter of the Intestate Estate of Mateo
Caballero) as an active case and thereafter duly proceed with the settlement of the
estate of the said decedent.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, and Nocon, JJ., concur.

G.R. No. 147145

January 31, 2005

TESTATE ESTATE OF THE LATE ALIPIO ABADA, BELINDA CAPONONGNOBLE, petitioner,

vs.
ALIPIO ABAJA and NOEL ABELLAR, respondents.
DECISION
CARPIO, J.:

The Case
Before the Court is a petition for review 1 assailing the Decision2 of the Court of
Appeals of 12 January 2001 in CA-G.R. CV No. 47644. The Court of Appeals
sustained the Resolution3 of the Regional Trial Court of Kabankalan, Negros
Occidental, Branch 61 ("RTC-Kabankalan"), admitting to probate the last will and
testament of Alipio Abada ("Abada").
The Antecedent Facts
Abada died sometime in May 1940.4 His widow Paula Toray ("Toray") died sometime
in September 1943. Both died without legitimate children.
On 13 September 1968, Alipio C. Abaja ("Alipio") filed with the then Court of First
Instance of Negros Occidental (now RTC-Kabankalan) a petition, 5 docketed as SP No.
070 (313-8668), for the probate of the last will and testament ("will") of Abada.
Abada allegedly named as his testamentary heirs his natural children Eulogio Abaja
("Eulogio") and Rosario Cordova. Alipio is the son of Eulogio.
Nicanor Caponong ("Caponong") opposed the petition on the ground that Abada left
no will when he died in 1940. Caponong further alleged that the will, if Abada really
executed it, should be disallowed for the following reasons: (1) it was not executed
and attested as required by law; (2) it was not intended as the last will of the
testator; and (3) it was procured by undue and improper pressure and influence on
the part of the beneficiaries. Citing the same grounds invoked by Caponong, the
alleged intestate heirs of Abada, namely, Joel, Julian, Paz, Evangeline, Geronimo,
Humberto, Teodora and Elena Abada ("Joel Abada, et al."), and Levi, Leandro,
Antonio, Florian, Hernani and Carmela Tronco ("Levi Tronco, et al."), also opposed
the petition. The oppositors are the nephews, nieces and grandchildren of Abada
and Toray.
On 13 September 1968, Alipio filed another petition 6 before the RTC-Kabankalan,
docketed as SP No. 071 (312-8669), for the probate of the last will and testament of
Toray. Caponong, Joel Abada, et al., and Levi Tronco, et al. opposed the petition on
the same grounds they cited in SP No. 070 (313-8668).
On 20 September 1968, Caponong filed a petition 7 before the RTC-Kabankalan,
docketed as SP No. 069 (309), praying for the issuance in his name of letters of
administration of the intestate estate of Abada and Toray.
In an Order dated 14 August 1981, the RTC-Kabankalan admitted to probate the will
of Toray. Since the oppositors did not file any motion for reconsideration, the order
allowing the probate of Torays will became final and executory. 8
In an order dated 23 November 1990, the RTC-Kabankalan designated Belinda
Caponong-Noble ("Caponong-Noble") Special Administratrix of the estate of Abada
and Toray.9 Caponong-Noble moved for the dismissal of the petition for probate of

the will of Abada. The RTC-Kabankalan denied the motion in an Order dated 20
August 1991.10
Sometime in 1993, during the proceedings, Presiding Judge Rodolfo S. Layumas
discovered that in an Order dated 16 March 1992, former Presiding Judge Edgardo
Catilo had already submitted the case for decision. Thus, the RTC-Kabankalan
rendered a Resolution dated 22 June 1994, as follows:
There having been sufficient notice to the heirs as required by law; that there is
substantial compliance with the formalities of a Will as the law directs and that the
petitioner through his testimony and the deposition of Felix Gallinero was able to
establish the regularity of the execution of the said Will and further, there being no
evidence of bad faith and fraud, or substitution of the said Will, the Last Will and
Testament of Alipio Abada dated June 4, 1932 is admitted and allowed probate.
As prayed for by counsel, Noel Abbellar 11 is appointed administrator of the estate of
Paula Toray who shall discharge his duties as such after letters of administration
shall have been issued in his favor and after taking his oath and filing a bond in the
amount of Ten Thousand (P10,000.00) Pesos.
Mrs. Belinda C. Noble, the present administratrix of the estate of Alipio Abada shall
continue discharging her duties as such until further orders from this Court.
SO ORDERED.12
The RTC-Kabankalan ruled on the only issue raised by the oppositors in their
motions to dismiss the petition for probate, that is, whether the will of Abada has an
attestation clause as required by law. The RTC-Kabankalan further held that the
failure of the oppositors to raise any other matter forecloses all other issues.
Not satisfied with the Resolution, Caponong-Noble filed a notice of appeal.
In a Decision promulgated on 12 January 2001, the Court of Appeals affirmed the
Resolution of the RTC-Kabankalan. The appellate court found that the RTCKabankalan properly admitted to probate the will of Abada.
Hence, the present recourse by Caponong-Noble.
The Issues
The petition raises the following issues:
1. What laws apply to the probate of the last will of Abada;
2. Whether the will of Abada requires acknowledgment before a notary
public;13

3. Whether the will must expressly state that it is written in a language or

dialect known to the testator;
4. Whether the will of Abada has an attestation clause, and if so, whether the
attestation clause complies with the requirements of the applicable laws;
5. Whether Caponong-Noble is precluded from raising the issue of whether
the will of Abada is written in a language known to Abada;
6. Whether evidence aliunde may be resorted to in the probate of the will of
Abada.
The Ruling of the Court
The Court of Appeals did not err in sustaining the RTC-Kabankalan in admitting to
probate the will of Abada.
The Applicable Law
Abada executed his will on 4 June 1932. The laws in force at that time are the Civil
Code of 1889 or the Old Civil Code, and Act No. 190 or the Code of Civil
Procedure14 which governed the execution of wills before the enactment of the New
Civil Code.
The matter in dispute in the present case is the attestation clause in the will of
Abada. Section 618 of the Code of Civil Procedure, as amended by Act No.
2645,15 governs the form of the attestation clause of Abadas will. 16Section 618 of
the Code of Civil Procedure, as amended, provides:
SEC. 618. Requisites of will. No will, except as provided in the preceding
section,17 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 testators 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.
Requisites of a Will under the Code of Civil Procedure

Under Section 618 of the Code of Civil Procedure, the requisites of a will are the
following:
(1) The will must be written in the language or dialect known by the testator;
(2) The will must be signed by the testator, or by the testators name written
by some other person in his presence, and by his express direction;
(3) The will must be attested and subscribed by three or more credible
witnesses in the presence of the testator and of each other;
(4) The testator or the person requested by him to write his name and the
instrumental witnesses of the will must sign each and every page of the will
on the left margin;
(5) The pages of the will must be numbered correlatively in letters placed on
the upper part of each sheet;
(6) 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 of the will, or caused some other person to write his name, under
his express direction, in the presence of three witnesses, and the witnesses
witnessed and signed the will and all pages of the will in the presence of the
testator and of each other.
Caponong-Noble asserts that the will of Abada does not indicate that it is written in
a language or dialect known to the testator. Further, she maintains that the will is
not acknowledged before a notary public. She cites in particular Articles 804 and
805 of the Old Civil Code, thus:
Art. 804. Every will must be in writing and executed in [a] language or dialect known
to the testator.
Art. 806. Every will must be acknowledged before a notary public by the testator
and the witnesses. xxx18
Caponong-Noble actually cited Articles 804 and 806 of the New Civil Code.19 Article
804 of the Old Civil Code is about the rights and obligations of administrators of the
property of an absentee, while Article 806 of the Old Civil Code defines a legitime.
Articles 804 and 806 of the New Civil Code are new provisions. Article 804 of the
New Civil Code is taken from Section 618 of the Code of Civil Procedure. 20 Article
806 of the New Civil Code is taken from Article 685 of the Old Civil Code 21 which
provides:
Art. 685. The notary and two of the witnesses who authenticate the will must be
acquainted with the testator, or, should they not know him, he shall be identified by

two witnesses who are acquainted with him and are known to the notary and to the
attesting witnesses. The notary and the witnesses shall also endeavor to assure
themselves that the testator has, in their judgment, the legal capacity required to
make a will.
Witnesses authenticating a will without the attendance of a notary, in cases falling
under Articles 700 and 701, are also required to know the testator.
However, the Code of Civil Procedure22 repealed Article 685 of the Old Civil Code.
Under the Code of Civil Procedure, the intervention of a notary is not necessary in
the
execution
of any will.23 Therefore,
Abadas
will
does
not
require
acknowledgment before a notary public.1awphi1.nt
Caponong-Noble points out that nowhere in the will can one discern that Abada
knew the Spanish language. She alleges that such defect is fatal and must result in
the disallowance of the will. On this issue, the Court of Appeals held that the matter
was not raised in the motion to dismiss, and that it is now too late to raise the issue
on appeal. We agree with Caponong-Noble that the doctrine of estoppel does not
apply in probate proceedings. 24 In addition, the language used in the will is part of
the requisites under Section 618 of the Code of Civil Procedure and the Court deems
it proper to pass upon this issue.
Nevertheless, Caponong-Nobles contention must still fail. There is no statutory
requirement to state in the will itself that the testator knew the language or dialect
used in the will.25 This is a matter that a party may establish by
proofaliunde.26 Caponong-Noble further argues that Alipio, in his testimony, has
failed, among others, to show that Abada knew or understood the contents of the
will and the Spanish language used in the will. However, Alipio testified that Abada
used to gather Spanish-speaking people in their place. In these gatherings, Abada
and his companions would talk in the Spanish language. 27 This sufficiently proves
that Abada speaks the Spanish language.
The Attestation Clause of Abadas Will
A scrutiny of Abadas will shows that it has an attestation clause. The attestation
clause of Abadas will reads:
Suscrito y declarado por el testador Alipio Abada como su ultima voluntad y
testamento en presencia de nosotros, habiendo tambien el testador firmado en
nuestra presencia en el margen izquierdo de todas y cada una de las hojas del
mismo. Y en testimonio de ello, cada uno de nosotros lo firmamos en presencia de
nosotros y del testador al pie de este documento y en el margen izquierdo de todas
y cada una de las dos hojas de que esta compuesto el mismo, las cuales estan
paginadas correlativamente con las letras "UNO" y "DOS en la parte superior de la
carrilla.28

Caponong-Noble proceeds to point out several defects in the attestation clause.

Caponong-Noble alleges that the attestation clause fails to state the number of
pages on which the will is written.
The allegation has no merit. The phrase "en el margen izquierdo de todas y cada
una de las dos hojas de que esta compuesto el mismo" which means "in the left
margin of each and every one of the two pages consisting of the same" shows that
the will consists of two pages. The pages are numbered correlatively with the letters
"ONE" and "TWO" as can be gleaned from the phrase "las cuales estan paginadas
correlativamente con las letras "UNO" y "DOS."
Caponong-Noble further alleges that the attestation clause fails to state expressly
that the testator signed the will and its every page in the presence of three
witnesses. She then faults the Court of Appeals for applying to the present case the
rule on substantial compliance found in Article 809 of the New Civil Code. 29
The first sentence of the attestation clause reads: "Suscrito y declarado por el
testador Alipio Abada como su ultima voluntad y testamento en presencia de
nosotros, habiendo tambien el testador firmado en nuestra presencia en el margen
izquierdo de todas y cada una de las hojas del mismo." The English translation is:
"Subscribed and professed by the testator Alipio Abada as his last will and
testament in our presence, the testator having also signed it in our presence on the
left margin of each and every one of the pages of the same." The attestation clause
clearly states that Abada signed the will and its every page in the presence of the
witnesses.
However, Caponong-Noble is correct in saying that the attestation clause does not
indicate the number of witnesses. On this point, the Court agrees with the appellate
court in applying the rule on substantial compliance in determining the number of
witnesses. While the attestation clause does not state the number of witnesses, a
close inspection of the will shows that three witnesses signed it.
This Court has applied the rule on substantial compliance even before the effectivity
of the New Civil Code. InDichoso de Ticson v. De Gorostiza,30 the Court
recognized that there are two divergent tendencies in the law on wills, one being
based on strict construction and the other on liberal construction. In Dichoso, the
Court noted thatAbangan v. Abangan,31 the basic case on the liberal construction, is
cited with approval in later decisions of the Court.
In Adeva vda. De Leynez v. Leynez,32 the petitioner, arguing for liberal
construction of applicable laws, enumerated a long line of cases to support her
argument while the respondent, contending that the rule on strict construction
should apply, also cited a long series of cases to support his view. The Court, after
examining the cases invoked by the parties, held:
x x x It is, of course, not possible to lay down a general rule, rigid and inflexible,
which would be applicable to all cases. 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 will, 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. x x x.
An attestation clause is made for the purpose of preserving, in permanent form, a
record of the facts attending the execution of the will, so that in case of failure of
the memory of the subscribing witnesses, or other casualty, they may still be
proved. (Thompson on Wills, 2d ed., sec. 132.) A will, therefore, should not be
rejected where its attestation clause serves the purpose of the law. x x
x 331a\^/phi1.net
We rule to apply the liberal construction in the probate of Abadas will. Abadas will
clearly shows four signatures: that of Abada and of three other persons. It is
reasonable to conclude that there are three witnesses to the will. The question on
the number of the witnesses is answered by an examination of the will itself and
without the need for presentation of evidence aliunde. The Court explained the
extent and limits of the rule on liberal construction, thus:
[T]he so-called liberal rule does not offer any puzzle or difficulty, nor does it open
the door to serious consequences. The later decisions do tell us when and where to
stop; they draw the dividing line with precision.They do not allow
evidence aliunde to fill a void in any part of the document or supply
missing details that should appear in the will itself.l^vvphi1.net They only
permit a probe into the will, an exploration within its confines, to
ascertain its meaning or to determine the existence or absence of the
requisite formalities of law. This clear, sharp limitation eliminates uncertainty
and ought to banish any fear of dire results. 34 (Emphasis supplied)
The phrase "en presencia de nosotros" or "in our presence" coupled with the
signatures appearing on the will itself and after the attestation clause could only
mean that: (1) Abada subscribed to and professed before the three witnesses that
the document was his last will, and (2) Abada signed the will and the left margin of
each page of the will in the presence of these three witnesses.
Finally, Caponong-Noble alleges that the attestation clause does not expressly state
the circumstances that the witnesses witnessed and signed the will and all its
pages in the presence of the testator and of each other. This Court has ruled:
Precision of language in the drafting of an attestation clause is desirable. However,
it is not imperative that a parrot-like copy of the words of the statute be made. It is
sufficient if from the language employed it can reasonably be deduced that the
attestation clause fulfills what the law expects of it. 35

The last part of the attestation clause states "en testimonio de ello, cada uno de
nosotros lo firmamos en presencia de nosotros y del testador." In English, this
means "in its witness, every one of us also signed in our presence and of the
testator." This clearly shows that the attesting witnesses witnessed the signing of
the will of the testator, and that each witness signed the will in the presence of one
another and of the testator.
WHEREFORE, we AFFIRM the Decision of the Court of Appeals of 12 January 2001
in CA-G.R. CV No. 47644.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Quisumbing, Ynares-Santiago, and Azcuna, JJ., concur.