G.R. No.

L-33006 December 8, 1982

NICANOR NACAR, petitioner,
vs.
CLAUDIO A. NISTAL as Municipal Judge of Esperanza, Agusan del Sur, PROVINCIAL SHERIFF of
Agusan del Sur, ILDEFONSO JAPITANA and ANTONIO DOLORICON, respondents.
GUTIERREZ, JR., J.:
Nicanor Nacar filed this petition for certiorari, prohibition, and mandamus with preliminary injunction to
annul an order of the respondent judge of the municipal court of Esperanza, Agusan del Sur directing the
attachment of seven (7) carabaos, to effect the return of four (4) carabaos seized under the questioned order,
and to stop the respondent judge from further proceeding in Civil Case No. 65.
Respondent Ildefonso Japitana filed the complaint in Civil Case No. 65 and entitled it "Claim Against the
Estate of the Late Isabelo Nacar With Preliminary Attachment:" On the basis of this complaint, including an
allegation "that defendant are (sic) about to remove and dispose the above-named property (seven carabaos)
with intent to defraud plaintiff herein", and considering that Mr. Japitana had given security according to
the Rules of Court, Judge Nistal issued the order commanding the provincial sheriff to attach the seven (7)
heads of cattle in the possession of petitioner Nicanor Nacar. Actually only four (4) carabaos were attached
because three (3) carabaos had earlier been slaughtered during the rites preceding the burial of the late
Isabelo Nacar.
Nicanor Nacar filed a motion to dismiss, to dissolve writ of preliminary attachment, and to order the return
of the carabaos. Private respondent Japitana filed an opposition to this motion while intervenor Antonio
Doloricon filed a complaint in intervention asserting that he was the owner of the attached carabaos and
that the certificates of ownership of large cattle were in his name.
The respondent Judge denied the motion to dismiss prompting Mr. Nacar to come to the Supreme Court.
In a resolution dated January 12, 1971, this Court, upon the posting of a bond in the amount of P1,000.00,
directed the issuance of a preliminary mandatory injunction. The respondents were enjoined from further
enforcing the writ of attachment and to return the seized carabaos. The judge was restrained from further
proceeding with Civil Case No. 65.
We find the petition meritorious.
The pertinent portions of the complaint filed by Mr. Japitana with the municipal court read as follows:
ILDEFONSO JAPITANA Civil Case No. 65 Plaintiff,
FOR:
Versus
CLAIM AGAINST THE ESTATE NICANOR NACAR THE LATE ISABELO NACAR WITH
Defendant. PRELIMINARY ATTACHMENT x ---------------------------------x
COMPLAINT
COMES NOW the undersigned plaintiff and before this Honorable Court, respectfully avers:
xxx xxx xxx
That at various dates since the year 1968, the defendant have (sic) incurred indebtedness to
the plaintiff in the total sum of TWO THOUSAND SEVEN HUNDRED NINETY ONE
(P2,791.00) PESOS, which said amount had long been overdue for payment, and which the
defendant up to this date have (sic) not been able to pay, despite repeated demands from the
plaintiff;
That the defendant Isabelo Nacar died last April, 1970 leaving among other things personal
property consisting seven (7) heads of carabaos now in the possession of the defendant
Nicanor Nacar;
That plaintiff herein file a claim against the estate of the late Isabelo Nacar to recover the
aforementioned sum of P2,791.99;
That defendant are (sic) about to remove and dispose the above mentioned property with
intent to defraud plaintiff herein;
That plaintiff is willing to put up a bond for the issuance of a preliminary attachment in an
amount to be fixed by the Court, not exceeding the sum of P 2,791.00 which is the plaintiff's
claim herein;

WHEREFORE, it is respectfully prayed that pending the hearing of this case, a writ of
preliminary attachment be issued against the properties of the defendant to serve as security
for the payment or satisfaction of any judgment that may be recovered herein; and that after
due hearing on the principal against the defendant for the sum of P 2,791,00 with legal
interest from September 15, 1970 plus costs of this suit. (Annex "A", p. 7 rollo).
In his motion to dismiss, the petitioner raised the issue of lack of jurisdiction and absence of a cause of
action. Mr. Nacar averred that the indebtedness mentioned in the complaint was alleged to have been
incurred by the late Isabelo Nacar and not by Nicanor Nacar. There was, therefore, no cause of action
against him. The petitioner also stated that a municipal court has no jurisdiction to entertain an action
involving a claim filed against the estate of a deceased person.
The same grounds have been raised in this petition. Mr. Nacar contends:
xxx xxx xxx
9. That the respondent judge acted without jurisdiction.The municipal courts or inferior
courts have NO jurisdiction to settle the estate of deceased persons. The proper remedy is for
the creditor to file the proper proceedings in the court of first instance and file the
corresponding claim. But assuming without admitting that the respondent judge had
jurisdiction, it is very patent that he committed a very grave abuse of discretion and totally
disregarded the provisions of the Rules of Court and decisions of this honorable Court when
he issued an ex-parte writ of preliminary attachment, when there is no showing that the
plaintiff therein has a sufficient cause of action, that there is no other security for the claim
sought to be enforced by the plaintiff; or that the amount claimed in the action is as much as
the sum for which the order is prayed for above all legal counterclaims; There was no bond
to answer for whatever damages that herein petitioner may suffer; (Rollo, pp. 3- 4).
xxx xxx xxx
The respondent judge tried to avoid the consequences of the issues raised in the motion to dismiss by
stating that although the title of the complaint styled it a claim against the estate of the late Isabelo Nacar,
the allegations showed that the nature of the action was really for the recovery of an indebtedness in the
amount of P2,791.99.
The rule cited by the judge is correctly stated but it is hardly relevant to the contents of the complaint filed
by Mr. Japitana.
It is patent from the portions of the complaint earlier cited that the allegations are not only vague and
ambiguous but downright misleading. The second paragraph of the body of the complaint states that the
defendant (herein petitioner Nicanor Nacar) at various dates since the year 1968 incurred debts to the
plaintiff in the sum of P2,791.00. And yet, in the subsequent paragraphs, one clearly gathers that the debts
were actually incurred by the late Isabelo Nacar, who died several months before the filing of the complaint.
The complaint which the respondent judge reads as one for the collection of a sum of money and all the
paragraphs of which are incidentally unnumbered, expressly states as a material averment:
xxx xxx xxx
That plaintiff herein file (sic) a claim against the estate of the late Isabelo Nacar to recover the
aforementioned sum of P2,791.00;
xxx xxx xxx
Under the circumstances of this case, respondent Japitana has no cause of action against petitioner Nacar.
Mathay v. Consolidated Bank and Trust Company (58 SCRA 559) gives the elements of a valid cause of action:
A cause of action is an act or omission of one party in violation of the legal right of the other.
Its essential elements are, namely: (1) the existence of a legal right in the plaintiff, (2) a
correlative legal duty in the defendant, and (3) an act or omission of the defendant in
violation of plaintiff's right with consequential injury or damage to the plaintiff for which he
may maintain an action for the recovery of damages or other appropriate relief. ( Ma-ao
Sugar Central Co., Inc. vs. Barrios, et al., 79 Phil. 666, 667; Ramitere et al. vs. Montinola Vda.
de Yulo, et al., L-19751, February 28, 1966, 16 SCRA 251, 255). On the other hand, Section 3 of
Rule 6 of the Rules of Court provides that the complaint must state the ultimate facts
constituting the plaintiff's cause of action. Hence, where the complaint states ultimate facts
that constitute the three essential elements of a cause of action, the complaint states a cause of
action; (Community Investment and Finance Corp. vs. Garcia, 88 Phil. 215, 218) otherwise,
the complaint must succumb to a motion to dismiss on that ground.

Indeed, although respondent Japitana may have a legal right to recover an indebtedness due him, petitioner
Nicanor Nacar has no correlative legal duty to pay the debt for the simple reason that there is nothing in the
complaint to show that he incurred the debt or had anything to do with the creation of the liability. As far as
the debt is concerned, there is no allegation or showing that the petitioner had acted in violation of Mr.
Japitana's rights with consequential injury or damage to the latter as would create a cause of action against
the former.
It is also patent from the complaint that respondent Japitana filed the case against petitioner Nacar to
recover seven (7) heads of carabaos allegedly belonging to Isabelo Nacar which Japitana wanted to recover
from the possession of the petitioner to answer for the outstanding debt of the late Isabelo Nacar. This
matter, however, is only ancillary to the main action. The ancillary matter does not cure a fatal defect in the
complaint for the main action is for the recovery of an outstanding debt of the late lsabelo Nacar due
respondent Japitana, a cause of action about which petitioner Nacar has nothing to do.
In fact the fatal defect in the complaint was noticed by the respondent court when it advised respondent
Japitana to amend his complaint to conform with his evidence and from the court's admission that it was
inclined to dismiss the case were it not for the complaint in intervention of respondent Doloricon.
Respondent Doloricon filed his complaint for intervention on the ground that the four carabaos, subject of
the writ of attachment, were actually his carabaos. Thus, the respondent court in its Order denying the
petitioner's motion to dismiss, to dissolve writ of preliminary attachment and in order the return of the
carabaos said:
... Antonio Doloricon manifested before this Court that he is filing a third-party complaint
alleging that he is the true and lawful owner of the carabaos in questions.
IN VIEW OF ALL THE FOREGOING, this Court for the interest of both parties will not for
the meantime dismiss this case. Antonio Doloricon is hereby given 10 days from receipt
hereof within which to file his third-party complaint. The plaintiff who in his opposition to
defendant's motion to dismiss pray (sic) for the custody of the carabaos. This Court further
requires plaintiff to put up the additional bond of P I,000.00 after which the latter may be
entitled of (sic) the custody of the carabaos subject of litigation pending final termination of
this case. (Rollo, pp. 18-19)
The respondent court's reason for not dismissing the case is contrary to applicable precedents on the matter.
We ruled in Mathay v. Consolidated Bank and Trust Company, supra:
Section I, Rule 16 of the Rules of Court, providing in part that:
Within the time for pleading a motion to dismiss may be made on any of the
following grounds; ...
(g) That the complaint states no cause of action. ...
explicitly requires that the sufficiency of the complaint must be tested exclusively on the basis of the
complaint itself and no other should be considered when the ground for motion to dismiss is that the
complaint states no cause of action. Pursuant thereto this Court has ruled that:
As a rule the sufficiency of the complaint, when challenged in a motion to
dismiss, must be determined exclusively on the basis of the facts alleged
therein' (Uy Chao vs. De La Rama Steamship Co., Inc., L-14495, September 29,
1962, 6 SCRA 69, 72. See also De Jesus, et al. vs. Belarmino et al., 95 Phil. 365,
371; Dalandan, et at. vs. Julio, et al., L- 19101, February 29, 1964, 10 SCRA 400;
Ramitere et al. vs. Montinola Vda. de Yulo, et al., L-19751, February 28, 1966,
16 SCRA 250, 254; Acuna vs. Batac Producers Cooperative Marketing
Association, Inc., et al., L-20338, June 30, 1967, 20 SCRA 526, 531)
Hence, it was error for the respondent court not to dismiss the case simply because respondent Doloricon
filed the complaint for intervention alleging that he owned the carabaos.
Moreover, even assuming that respondent Japitana had a legal right to the carabaos which were in the
possession of petitioner Nacar, the proper procedure would not be to file an action for the recovery of the
outstanding debts of the late Isabelo Nacar against his stepfather, the petitioner Nacar as defendant. As we
said in Maspil v. Romero (61 SCRA 197):
Appropriate actions for the enforcement or defense of rights must be taken in accordance
with procedural rules and cannot be left to the whims or caprices of litigants. It cannot even
be left to the untrammeled discretion of the courts of justice without sacrificing uniformity
and equality in the application and effectivity thereof.

Considering the foregoing, the respondent court's denial of the motion to dismiss the complaint and its
issuance of a writ of attachment based on the allegations of the complaint are improper. With this
conclusion, we find no need to discuss the other issue on whether or not the procedural rules on the
issuance of a writ of attachment were followed by the respondent court in issuing the subject writ of
attachment.
WHEREFORE, the petition is hereby granted. The preliminary mandatory injunction issued on January 13,
1971 is made permanent and the cash bond filed by the petitioner in connection therewith is ordered
returned to him. SO ORDERED.
EN BANC
G.R. No. L-15388

January 31, 1961

DORA PERKINS ANDERSON, petitioner-appellee,

vs.
IDONAH SLADE PERKINS, oppositor-appellant.
Ponce Enrile, S. Reyna, Montecillo and Belo for petitioner-appellee.
Lazaro A. Marquez and J. D. Quirino for oppositor-appellant.
REYES, J.B.L., J.:
Appeal against an order of the Court of First Instance of Manila in Special Proceedings No. 29636
authorizing the special administrator of the testate estate of the late Eugene Arthur Perkins to sell at public
auction certain personal properties left by the deceased.
It appears that said special proceedings were commenced on May 10, 1956, by a petition presented by Dora
Perkin Anderson for the probate of the supposed last will and testament of the late Eugene Arthur Perkins,
who died in Manila on April 28, 1956 allegedly possessed of personal and real properties with a probable
value of P5,000,000. On the same date of the filing of the aforesaid petition, petitioner Dora Perkins
Anderson also filed a urgent petition for the appointment of Alfonso Ponce Enrile as special administrator
of the estate, and on the same day, the court issued an order appointing Alfonso Ponce Enrile as such
special administrator upon his posting of a bond in the amount of P50,000. On July 9, 1956, Idonah Slade
Perkins, surviving spouse of the deceased entered an opposition to the probate of the will presented by
petitioner Dora Perkins Anderson. On September 28, 1956 the special administrator submitted an inventory
of all the assets which have come to his knowledge as belonging to the deceased Eugene Arthur Perkins at
the time of his death.
About two years later, or on September 4, 1958, the special administrator submitted to the court a petition
seeking authority to sell, or give away to some charitable or educational institution or institutions, certain
personal effects left by the deceased, such as clothes, books, gadgets, electrical appliances, etc., which were
allegedly deteriorating both physically and in value, in order to avoid their further deterioration and to save
whatever value migh be obtained in their disposition. When the motion was heard on September 25, 1958,
the court required the administrator to submit a specification of the properties sought to be sold, and in
compliance therewith, the special administrator, on October 21, 1958, submitted to the court, in place of a
specification, a copy of the inventory of the personal properties belonging to the estate with the items
sought to be sold marked with a check in red pencil, with the statement that said items were too
voluminous to enumerate.
On July 9, 1956, Idonah Slade Perkins filed an opposetion to the proposed sale. Reasons, for the opposition
were that (1) most of the properties sought to be sold were conjugal properties of herself and her deceased
husband; and (2) that unauthorized removal of fine pieces of furniture belonging to the estate had been
made.
The opposition notwithstanding, the lower court, on December 2, 1958, approved the proposed sale,
authorizing the Sheriff of Manila to conduct the same. Oppositor Idonah Slade Perkins moved to reconsider
this order on the grounds (1) that said order in effect authorized the special administrator to sell the entire
personal estate of the deceased, contrary to Rule 81, section 2. Rules of Court; (2) that said order was issued
without a showing that the goods and chattels sought to be sold were perishable, pursuant to Rule 81,
section 2, Rules of Court; (3) that the personalty sought to be sold represented the lifetime savings and
collections of oppositor; (4) that there is evidence on record showing unauthorized withdrawals from the
properties of the estate, and the sale of the inventoried lot would prevent identification and recovery of the
articles removed; and (5) that there is also evidence showing oppositor's separate rights to a substantial part
of the personal estate.
On February 23, 1959, the lower court denied the above motion for reconsideration. Whereupon, oppositor
Idonah Slade Perkins appealed to this court.

Appellant first claims that the personal properties sought to be sold not being perishable, the special
administrator has no legal authority to sell them. This argument is untenable, because section 2, Rule 81, of
the Rules of Court, specifically provides that the special administrator "may sell such perishable and other
property as the court orders sold", which shows that the special administrator's power to sell is not limited to
"perishable" property only.
It is true that the function of a special administrator is only to collect and preserve the property of the
deceased until a regular administrator is appointed (sec. 2, Rule 81; De Gala v. Gonzales, 53 Phil. 104;
Collins v. Henry, 118 S.E. 729, 155 Ga. 886; Sqydelko v. Smith's Estate, 244 N.W. 149, 259 Mich. 519). But it is
not alone the specific property of the estate which is to be preserved, but its value as well, as shown by the
legal provision for the sale by a special administrator of perishable property (Cao vs. Cascade Silver Mines
& Mills, et al., 213 P. 109 66 Mont. 488). It is in line with this general power of the special administrator to
preserve not only the property of the estate but also its value, that section 2, Rule 81, also empowers such
administrator to sell "other proerty as the court ordered sold;" .
There is, however, a serious obstacle to the proposed sale, namely, the vigorous opposition presented
thereto the appellant, the surviving spouse of the deceased, on the ground that she is allegedly entitled to a
large portion of the personal properties in question, either because the were conjugal property of herself and
the deceased, or because they are her own, exclusive, personal property. Indeed the records show that up to
the time the propose sale was asked for and judicially approved, no proceeding had as yet been taken, or
even started, to segregate the alleged exclusive property of the oppositor-appellant from the mass of the
estate supposedly left by the deceased or to liquidate the conjugal partnership property of the oppositorappellant and the deceased. Until, therefore the issue of the ownership of the properties sought to be sold is
heard and decided, and the conjugal partnership liquidated; or, at least, an agreement be reached with a
appellant as to which properties of the conjugal partnership she would not mind being sold to preserve
their value the proposed sale is clearly premature. After all, most of the items sought to be sold pieces of
furniture, kitchen and dinner ware, electrical appliances, various gadget and books can easily be
protected and preserved with proper care and storage measures in either or both of two residential houses
(in Manila and in Baguio City left by the deceased, so that no reasons of extreme urgency justify the
proposed sale at this time over the strong opposition and objection of oppositor-appellant who may later be
adjudged owner of a substantial portion of the personal estate in question.
The special administrator claims in his brief that t oppositor-appellant should have indicated the alleged
"fine furniture" which she did not want sold and that her refusal to do so is an indication of her
unmeritorious claim. But it does not appear that appellant was given a reasonable opportunity to point out
which items in the inventory she did not want sold. In fact, her opposition to the proposed sale and later her
motion for reconsideration to the order approving the same were overruled by the court without so much as
stating reasons why the grounds for her opposition were not well-founded; the records do not even show
that an inquiry was made as to the validity of the grounds of her opposition.
WHEREFORE, the lower court's order of December 2, 1958 authorizing the special administrator to sell
certain personal properties of the estate is set aside, with costs against the special administrator Alfonso
Ponce Enrile and petition-appellee Dora Perkins Anderson.
G.R. No. 92436 July 26, 1991
MARIA VDA. DE REYES, EFREN REYES, ELVIRA REYES-TIMBOL, ERLINDA REYES-VALERIO,
ERNESTO REYES, ELIZABETH REYES, ALEX, RAFAEL II, EMELINA and EVELYN, all surnamed
REYES, represented by their mother, MARIA VDA. DE REYES, petitioners,
vs.
THE COURT OF APPEALS AND SPOUSES DALMACIO GARDIOLA and ROSARIO MARTILLANO
respondents.
DAVIDE, JR., J.:p
Assailed before Us in this appeal by certiorari under Rule 45 of the Rules of Court is the decision of the
respondent Court of Appeals in C.A.-G.R. CV No. 11934, promulgated on 20 October 1989, 1 reversing the
decision of 1 October 1986 of Branch 21 (Imus, Cavite) of the Regional Trial Court of the Fourth Judicial
Region in Civil Case No. RTC-BCV-83-17 entitled Maria vda. de Reyes, et al. vs. Spouses Dalmacio Gardiola and
Rosario Martillano, and Spouses Ricardo M. Gardiola and Emelita Gardiola, 2 and the resolution of 1 March 1990
denying the petitioner's motion for reconsideration.
As culled from both decisions and the pleadings of the parties, the following facts have been
preponderantly established:
During his lifetime, one Gavino Reyes owned a parcel of land of approximately 70 hectares, more or less,
located at Sangayad, Ulong-Tubig, Carmona, Cavite. He sought to bring said land under the operation of

the Torrens System of registration of property. Unfortunately, he died in 1921 without the title having been
issued to him. The application was prosecuted by his son, Marcelo Reyes, who was the administrator of his
property.
In 1936 the above property was surveyed and subdivided by Gavino's heirs (Exh. "6"). In the subdivision
plan, each resultant lot was earmarked, indicated for and assigned to a specific heir. It appears therein that
two lots, one of which is Lot No. I A-14 (Exh. "6-A"), were allotted to Rafael Reyes, Sr., one of Gavino's
children. Per testimony of Juan Poblete, the children thereafter secured tax declarations for their respective
shares.
In 1941, or about twenty (20) years after the death of Gavino, the original certificate of title for the whole
property OCT No. 255 was issued. It was, however, kept by Juan Poblete, son-in-law of Marcelo
Reyes, who was by then already deceased. The heirs of Gavino were not aware of this fact.
On 3 December 1943, Rafael Reyes, Sr. sold a parcel of land with an area of 23,431 square meters, more or
less, to private respondent Dalmacio Gardiola (Exh. "5"). According to the vendee, this parcel corresponds
to Lot No. 1-A-14 of the subdivision plan aforestated. The deed of sale, however, did not specifically
mention Lot No. 1-A-14. The vendee immediately took possession of the property and started paying the
land taxes therein.
In 1945 or thereabouts, Juan Poblete "revalidated" the original Certificate of Title. As reconstituted, the new
title is OCT (0-4358) RO-255 (Exhs. "4" to "4-A").
On 21 October 1967, when the heirs of Gavino Reyes executed a Deed of Extrajudicial Settlement of Estate
(Exh. "D") based on the aforestated subdivision plan (Exh. "6"), the lot that was intended for Rafael Reyes,
Sr., who was already deceased, was instead adjudicated to his only son and heir, Rafael Reyes, Jr. (the
predecessor-in-interest of the petitioners herein). Private respondent Rosario Martillano signed the deed in
representation of her mother, Marta Reyes, one of the children of Gavino Reyes.
As a result of the Extrajudicial Settlement, OCT RO-255 was cancelled and in lieu thereof, several transfer
certificates of title covering the subdivided lots were issued in the names of the respective adjudicatees. One
of them is TCT No. 27257 in the name of Rafael Reyes, Jr. covering Lot No. 1-A-14. The Transfer Certificates
of Title were, however, kept by one Candido Hebron. On 10 January 1969, some of the heirs of Gavino
Reyes filed a case of Annulment of Partition and Recovery of Possession before the Court of First Instance of
Cavite City, which was docketed therein as Civil Case No. 1267. One of the defendants in said case is herein
private respondent Rosario Martillano. The case was dismissed on 18 September 1969, but Candido Hebron
was ordered by the trial court to deliver to the heirs concerned all the transfer certificates of title in his
possession. 3
After obtaining the Transfer Certificate of Title for Lot No. 1-A-14 from Hebron, pursuant to the aforesaid
order in Civil Case No. 1267, petitioners herein, as successors-in-interest of Rafael Reyes, Jr., filed on 14
March 1983 with the Regional Trial Court the above-mentioned Civil Case No. RTC-BCV-83-17 against
private respondents (defendants therein) for recovery of possession or, in the alternative, for
indemnification, accounting and damages. They allege therein that after "having definitely discovered that
they are the lawful owners of the property," (Lot No. 1-A-14), they, "including Rafael Reyes, Jr., during his
lifetime, made repeated demands to (sic) defendants to surrender the possession of and vacate the parcel of
land belonging to the former, but defendants refused to vacate and surrender the possession of the said land
to herein plaintiffs;" the last of the demands was allegedly made on 8 October 1982. They further allege that
they have been deprived by said defendants of the rightful possession and enjoyment of the property since
September 1969 which coincides with the date of the order in Civil Case No. 1267. 4
In their answer, private respondents deny the material averments in the complaint and assert that they are
the owners of the lot in question, having bought the same from Rafael Reyes, Sr., that the issuance of TCT
No. 27257 is null and void, for such sale was known to Rafael Reyes, Jr.; that they have been in possession of
the property and have been paying the land taxes thereon; and that petitioners are barred by prescription
and/or laches. 5
Petitioners amended their complaint on 21 March 1985 to implead as additional defendants the spouses
Ricardo M. Gardiola and Emerita Gardiola, on the basis of the following claims:
xxx xxx xxx
9. Meanwhile, during the presentation of the defendants spouses Dalmacio Gardiola and
Rosario Martillano's evidence the former testified that they mortgaged the subject land to the
Rural Bank of Carmona Inc. For their failure to redeem the mortgage the same was foreclosed
by the bank.

10. However, within the period of one(1) year from such foreclosure the questioned land was
redeemed by the original defendants' son in the person of Ricardo M. Gardiola, who was
knowledgeable/aware of the pendency of the above captioned case. The corresponding
redemption was effected through a deed of conveyance, . . . . 6
The prayer of the amended complaint now contains the alternative relief for indemnification for the
reasonable value of the property "in the event restitution of the property is no longer possible." 7
In its decision of 1 October 1986, 8 the trial court concluded that petitioners' "title over the subject property is
valid and regular and thus they are entitled to its possession and enjoyment," and accordingly decided thus:
WHEREFORE, the defendants or anyone acting for and in their behalf are hereby ordered to
relinguish possession or vacate the property in question which is covered by Transfer
Certificate of Title No. T-27257 in favor of the plaintiffs.
All other claims and/or counterclaims of the parties relative to this case are dismissed for
lack of proper substantiation.
The conclusion of the trial court is based on its finding that (a) there is no evidence that the heirs of Gavino
Reyes entered into any written agreement of partition in 1936 based on the subdivision plan; (b) there is no
identity between Lot No. 1-14-A and the land sold to private respondents by Rafael Reyes, Sr., or otherwise
stated, the description of the latter as indicated in the deed of sale (Exh. "5") does not tally with the
description of the former; and (c) moreover:
Granting, arguendo, that the sale made by Rafael Reyes, Sr. to the defendants covered the land
in question Lot No. 1-A-14 and that Transfer Certificate of Title No. T-27257 was
obtained by means of fraud, the claim of the defendants over the said property is already
barred. Action for reconveyance prescribes in four (4) years from the discovery thereof. If
there was fraud, the defendant could have discovered the same in 1967 when the partition
was made in as much as defendant Rosario Martillano was a party to that partition. Let us
grant further that the issuance of Transfer Certificate of Title No. T-27257 to Rafael Reyes, Jr.
created a constructive or implied trust in favor of the defendants, again, the claim of the
defendants is also barred. From 1967 to the filing of their answer (let us consider this as an
action for reconveyance) to this case sometime in July, 1983, a period of about sixteen (16)
years had already elapsed. Prescriptibility of an action for reconveyance based on implied or
constructive trust is ten (10) years.
The trial court further held that the continued possession by private respondents, which it found to have
started in 1943, did not ripen into ownership because at that time, the property was already registered,
hence it cannot be acquired by prescription or adverse possession. 9
Private respondents appealed the said decision to the Court of Appeals which docketed the appeal as C.A.G.R. CV No. 11934. In its decision of 20 October 1989, the respondent Court of Appeals formulated the
issues before it as follows:
I
Whether or not the lower court erred in declaring that the property of the late Gavino Reyes
consisting of 70 hectares was partitioned only in 1967 by his grandchildren after discovery of
the existence of OCT No. 255 and that no actual partition was made in 1936 by the decedent's
children.
II
Whether or not the lower court erred in concluding that the parcel of land sold by the
appellees' predecessor-in-interest, the late Rafael Reyes, Sr. to appellant Dalmacio Gardiola
was not the same parcel of land under litigation. 10
and resolved such issues, thus:
On the first issue, We believe that the lower court committed a reversible error when it
declared that the landed estate of the late Gavino Reyes was partitioned only in 1967 by the
latter's grandchildren; and that no actual partition was made in 1936 by the decedents' (sic)
children. The evidence on record bears out the existence of a subdivision plan (Exh. 6) which
was not controverted nor denied by the appellees. In like manner, the lower court itself
recognized the fact that the property of the late Gavino Reyes consisting of 70 hectares was
surveyed and subdivided in 1936 as evidenced by the said subdivision plan (Exh. 6). With
the existence of a subdivision plan, and from the uncontroverted testimony of appellants'
witness, We can only infer that at least an oral partition, which under the law is valid and

binding, was entered into by the heirs of Gavino Reyes regarding his properties in 1936. As
held in a long line of decisions, extrajudicial partition can be done orally, and the same
would be valid if freely entered into (Belen v. Belen, 49 O.G. 997, March 1953). The reason for
this is because a partition is not exactly a conveyance for the reason that it does not involve
transfer of property from one to the other but rather a confirmation by them of their
ownership of the property. It must also be remembered that when Gavino Reyes died on
March 7, 1921, his property was admittedly not yet covered by a torrens title, as it was only
in 1941 when said properties were brought into the application of the torrens system. With
this factual milieu, it can also be concluded that his heirs have indeed settled, subdivided and
partitioned Gavino Reyes' landed estate without formal requirements of Rule 74 of the Rules
of Court when a parcel of land is covered by a torrens title. As told earlier, the Subdivision
Plan (Exh. 6) undisputedly showed on its face that the 70 hectares of land belonging to the
late Gavino Reyes was subdivided and partitioned by his children in 1936. On this score, the
partition of the said property even without the formal requirements under the rule is valid as
held in the case of Hernandez vs. Andal, 78 Phil. 176, which states:
xxx xxx xxx
Moreover, in the Deed of Sale dated December 3, 1943 (Exh. 5) executed by Rafael Reyes, Sr.
in favor of appellant Dalmacio Gardiola, the land sold therein was described as "na aking
minana sa aking ama." This alone would confirm the contention of the appellants that there
was already an actual partition (at least an oral partition) of the property of Gavino Reyes in
1936. As aforestated, the presence of the Subdivision Plan (Exh. 6) is an (sic) evidence of such
partition which appellees failed to controvert not to mention the fact that the lower court
itself recognized the existence of said plan, in the same manner that it concluded that the
property was already surveyed and actually subdivided in 1936 (page 3, pars. 3 and 4,
Decision).
From the foregoing considerations it is evident that the Deed of Extrajudicial Settlement of
Estate (Exh. D) executed by the grandchildren of the late Gavino Reyes in 1967 is of no
moment considering that the property subject of the partition in the deed was already
partitioned in 1936 by the children of Gavino Reyes. It is for this reason that the lots
supposedly inherited by the grandchildren named in the deed of 1967 were the same lots
inherited and given to their respective fathers or mothers in 1936 while the land was not yet
covered by the torrens system. Hence, in the case of Rafael Reyes, Sr., the land inherited by
him was two (2) parcels of land known as Lots Nos. 1-A-3 and 1-A-14 described in the
Subdivision plan of 1936 (Exh. 6), which were the same parcels of land allegedly inherited by
Rafael Reyes, Jr. from Gavino Reyes in representation of his father, pursuant to the Deed of
Extrajudicial Settlement of Estate for which TCT No. 27257 was issued.
Coming to the second issue, the lower court likewise erred when it concluded that the parcel
of land sold by appellee's predecessor-in-interest to appellant Dalmacio Gardiola was not the
same parcel of land under litigation. It must be pointed out that the identity of the parcel of
land which the appellees sought to recover from the appellants was never an issue in the
lower court, because the litigants had already conceded that the parcel identified as Lot No.
1-A-14 in TCT No. 27257 was the same parcel of land identified as Cadastral Lot No. 1228
and 1235 described in Tax Declaration No. 4766. Despite this admission, however, the lower
court declared that "as described in the deed of sale (Exh. 5), the land's description does not
tally with the description of Lot No. 1-A-14, the land in litigation." As correctly pointed out
by the appellants however, the discrepancy in the description was due to the fact that the
description of the land sold in the Deed of Sale was expressed in layman's language whereas
the description of Lot No. 1-A-14 in TCT No. 27257 was done in technical terms. This was so
because, when Rafael Reyes, Sr. sold the property in dispute to appellant Dalmacio Gardiola
on December 3, 1943, the only evidence of title to the land then available in so far as Rafael
Reyes, Sr. was concerned was Tax Declaration No. 4766, because at that time, neither he nor
appellant Dalmacio Gardiola was aware of the existence of OCT No. 255 as in fact TCT No.
27257 was issued only in 1967. Consequently, the land subject of the Deed of Sale was
described by the vendor in the manner as described in Tax Declaration No. 4766. However,
the description of the land appearing in the Deed of Sale (Exh. 5) was exactly the same land
identified as Lot No. 1-A-14 in the Subdivision Plan (Exh. 6) of 1936. Accordingly, the
assumption of the lower court that "if the land sold by Rafael Reyes, Sr. was the one now in
litigation, he could have easily indicated Lot No. 1-A-14" is bereft of merit under the
foregoing circumstances. Interestingly enough, the appellees never denied the identity of the
subject lot during the hearing at the lower court. What they were denying only was the sale

made by Rafael Reyes, Sr. to appellant Dalmacio Gardiola which does not hold true because
of the document denominated as Deed of Sale (Exh. 5). 11
It concluded that the trial court erred when it ordered the private respondents or anyone acting in their
behalf to relinquish the possession or vacate the property in question. It thus decreed:
WHEREFORE, the appealed Judgment is ordered REVERSED and SET ASIDE and a new one
is rendered declaring appellants to be the lawful owners of the lot identified as Lot No. 1-A14 in TCT No. 27257. No
costs. 12
Their motion to reconsider the above decision having been denied by the Court of Appeals in its resolution
of 1 March 1990, 13 petitioners filed the instant petition on 6 April 1990 after having obtained an extension of
time within which to file it.
The petition does not implead original new defendants Ricardo Gardiola and Emelita Gardiola.
As ground for their plea for the review of the decision of the Court of Appeals, petitioners allege that said
court has decided questions of substance in a way not in accord with law or applicable jurisprudence when
it held that "the deed of extrajudicial settlement of estate (Exh. "D") executed by the grandchildren of the late
Gavino Reyes in 1967 is of no moment considering that the property subject of the partition was already
partitioned in 1936 by the children of Gavino Reyes." In support thereof, they claim that (a) TCT No. 27257
covers two parcels of land; the lot described in paragraph 1 thereof is owned by petitioners and that
ownership was confirmed by this Court in G.R. No. 79882, hence, the Court of Appeals should have
affirmed the decision of the trial court; (b) private respondent Rosario Martillano was a party to the
extrajudicial settlement of estate which was duly registered in the Registry of Deeds in 1967; said
registration is the operative act that gives validity to the transfer or creates a lien upon the land and also
constituted constructive notice to the whole world. The court cannot disregard the binding effect thereof
Finally, the pronouncement of the Court of Appeals that private respondents are the lawful owners of the
lot in question "militates against the indefeasible and incontrovertible character of the torrens title," 14 and
allows reconveyance which is not tenable since the action therefor had already prescribed, as stated in the
decision of the trial court.
In the resolution of 7 May 1990, We required respondents to comment on the petition. But even before it
could do so, petitioner, without obtaining prior leave of the Court, filed on 29 May 1990 a so-called
Supplemental Arguments in Support of The Petition For Review On certiorari 15 wherein they assert, among
others, that: (a) the findings of facts of respondent Court are contrary to those of the trial court and appear
to be contradicted by the evidence on record thus calling for the review by this Court; 16 (b) it also
committed misapprehension of the facts in this case and its findings are based on speculation, conjecture
and surmises; (c) private respondents' attack on petitioners' title is a collateral attack which is not allowed;
even if it is allowed, the same had already prescribed and is now barred.
It was only on 15 June 1990 that private respondents filed their Comment. 17 We required petitioners to
reply thereto, which they complied with on 8 August 1990. 18 A rejoinder was filed by private respondents
on 29 August 1990.
We gave due course to the petition on 19 September 1990 and required the parties to submit simultaneously
their respective memoranda which they complied with.
Attached as Annex "A" to private respondent's Memorandum, which was filed on 10 December 1990, is the
Resolution of this Court (Third Division) of 20 August 1990 in G.R. No. 92811 entitled Spouses Artemio
Durumpili and Angustia Reyes vs. The Court of Appeals and Spouses Dalmacio Gardiola and Rosario Martillano,
which also involves the property of Gavino Reyes, the partition thereof among his children in 1936, and the
extrajudicial settlement in 1967.
In said resolution, this Court held:
. . . The partition made in 1936, although oral, was valid. The requirement in Article 1358 of
the Civil Code that acts which have for their object the creation, transmission, modification or
extinguishment of real rights over immovable property must appear in a public instrument is
only for convenience and not for validity or enforceability as between the parties themselves.
[Thunga Hui vs. Que Bentec, 2 Phil. 561 (1903)] The subsequent execution by the heirs of the
Extrajudicial Partition in 1967 did not alter the oral partition as in fact the share pertaining to
Angustia Reyes corresponded to that previously assigned to her father. Considering that
Angel Reyes sold this property to Basilio de Ocampo who, in turn, sold the same to
respondents, we agree with the Court of Appeals that the latter lawfully acquired the
property and are entitled to ownership and possession thereof.

In answer to the charge of private respondents that petitioners deliberately failed to cite this resolution, the
latter, in their reply-memorandum dated 15 March 1991 and filed three days thereafter, allege:
Our failure to mention the aforementioned resolution before this Honorable Court is not
deliberate nor with malice aforethought. The reason is that to date, we have not yet received
any resolution to our Motion For Leave of Court To Refer Case To The Honorable Supreme
Court En Banc. Moreover, we honestly feel that the resolution that will be issued therein will
not be applicable to the case before this Honorable Court's Second Division. It should be
mentioned that in the Durumpili case before the Third Division, the Court of Appeals relied
on the alleged confirmation of the sale executed by Angustia Reyes, while in the Reyes case
before this Second Division, there was no sale that was executed by the petitioners Reyes'
predecessor-in-interest, Rafael Reyes, Jr.
The foregoing claim is not supported by the rollo of G.R. No. 92811, which reveals the following: (a) On 18
September 1990, petitioners therein, represented by De Lara, De Lunas and Rosales, who are the lawyers of
petitioners in the instant case, filed a motion for the reconsideration of the resolution of 20 August 1990. 19 b)
This motion was denied in the resolution of 1 October 1990. 20 c) On 17 November 1990, petitioners therein,
through the same lawyers, filed a Motion For Leave Of Court To Refer Case To The Honorable Supreme
Court En Banc And/Or Motion For Reconsideration 21 wherein they specifically admit that said case and the
instant petition have "identity and/or similarity of the parties, the facts, the issues raised," even going to the
extent of "graphically" illustrating where such similarities lie. 22 d) This motion was denied in the resolution
of 28 November 1990. Copy thereof was furnished the attorneys for petitioners. 23 e) Entry of judgment had
already been made therein and a copy thereof was sent to petitioner's counsel per Letter of Transmittal of
the Deputy Court and Chief of the Judicial Records Office dated 20 December 1990.
What comes out prominently from the disquisitions of the parties is this simple issue: whether or not
respondent Court of Appeals committed any reversible error in setting aside the decision of the trial court.
We find none. The reversal of the trial court's decision is inevitable and unavoidable because the legal and
factual conclusions made by the trial court are unfounded and clearly erroneous. The Court of Appeals was
not bound to agree to such conclusions. The trial court erred in holding that: (a) there was no partition
among the children of Gavino Reyes in 1936 since there is no written evidence in support thereof; yet, it
admits that there was a survey and subdivision of the property and the adjudication of specific subdivision
lots to each of the children of Gavino; (b) the land sold by Rafael Reyes, Sr. to private respondents is not
identical to Lot No. 1-A-14, the lot specified for and adjudicated to Rafael Reyes, Jr. in the partition
agreement; and (c) if the land sold by Rafael Reyes, Sr. to private respondent Dalmacio Gardiola is indeed
Lot No. 1-A-14 and that TCT No. T-27257 was obtained through fraud, the remedy open to the vendee was
an action for reconveyance, which should have been brought within four (4) years from the discovery
thereof in 1967 when the Extrajudicial Settlement was executed since private respondent Rosario Martillano,
wife of Dalmacio, was a party thereto.
The Court of Appeals correctly held that the partition made by the children of Gavino Reyes in 1936,
although oral, was valid and binding. There is no law that requires partition among heirs to be in writing to
be valid. 24 In Hernandez vs. Andal, supra, this Court, interpreting Section 1 of Rule 74 of the Rules of Court,
held that the requirement that a partition be put in a public document and registered has for its purpose the
protection of creditors and at the same time the protection of the heirs themselves against tardy claims. The
object of registration is to serve as constructive notice to others. It follows then that the intrinsic validity of
partition not executed with the prescribed formalities does not come into play when there are no creditors
or the rights of creditors are not affected. Where no such rights are involved, it is competent for the heirs of
an estate to enter into an agreement for distribution in a manner and upon a plan different from those
provided by law. There is nothing in said section from which it can be inferred that a writing or other
formality is an essential requisite to the validity of the partition. Accordingly, an oral partition is valid.
Barcelona, et al. vs. Barcelona, et al., supra, provides the reason why oral partition is valid and why it is not
covered by the Statute of Frauds: partition among heirs or renunciation of an inheritance by some of them is
not exactly a conveyance of real property for the reason that it does not involve transfer of property from
one to the other, but rather a confirmation or ratification of title or right of property by the heir renouncing
in favor of another heir accepting and receiving the inheritance.
Additionally, the validity of such oral partition in 1936 has been expressly sustained by this Court in the
Resolution of 20 August 1990 in G.R. No. 92811. 25
But even if We are to assume arguendo that the oral partition executed in 1936 was not valid for some reason
or another, We would still arrive at the same conclusion for upon the death of Gavino Reyes in 1921, his
heirs automatically became co-owners of his 70-hectare parcel of land. The rights to the succession are
transmitted from the moment of death of the decedent. 26 The estate of the decedent would then be held in

co-ownership by the heirs. The co-heir or co-owner may validly dispose of his share or interest in the
property subject to the condition that the portion disposed of is eventually allotted to him in the division
upon termination of the co-ownership. Article 493 of the Civil Code provides:
Each co-owner shall have the full ownership of his part and the fruits and benefits pertaining
thereto, and he may even substitute another person in its enjoyment, except when personal
rights are involved. But the effect of the alienation or the mortgage, with respect to the coowners, shall be limited to the portion which may be allotted to him in the division upon the
termination of the co-ownership.
In Ramirez vs. Bautista, 27 this Court held that every co-heir has the absolute ownership of his share in the
community property and may alienate, assign, or mortgage the same, except as to purely personal rights,
but the effect of any such transfer is limited to the portion which may be awarded to him upon the partition
of the property.
In the case at bar, the lot sold by Rafael Reyes, Sr. to private respondent Dalmacio Gardiola is his share in
the estate of his deceased father, Gavino Reyes. It is the same property which was eventually adjudicated to
his son and heir, Rafael Reyes, Jr., represented in turn by his heirs-petitioners herein-in the extrajudicial
settlement of 1967.
In respect to the issue as to whether the property sold by Rafael Reyes, Sr. is identical to Lot No. 1-14-A, the
trial court based its conclusion that it is not, on his observation that the description of the former does not
tally with that of the latter, moreover, if Rafael did intend to sell Lot No. 1-14-A, he should have specifically
stated it in the deed since at that time, the property had already been partitioned and said lot was
adjudicated to him. In addition to the contrary findings and conclusion of the respondent Court on this
issue to which We fully agree, it is to be stressed that Rafael had this property declared for taxation
purposes and the tax declaration issued was made the basis for the description of the property in the deed
of sale. Upon the execution of the deed of sale, vendee herein private respondent Dalmacio Gardiola
immediately took possession of the property. This is the very same property which is the subject matter of
this case and which petitioners seek to recover from the private respondents. The main evidence adduced
for their claim of ownership and possession over it is TCT No. T-27257, the certificate of title covering Lot
No. 1-14-A. They therefore admit and concede that the property claimed by private respondent, which was
acquired by sale from Rafael Reyes, Sr., is none other than Lot No. 1-14-A.
The participation of private respondent Rosario Gardiola in the Extrajudicial Settlement did not place
private respondents in estoppel to question the issuance of TCT No. T-27257. As correctly maintained by
private respondents, she signed it in representation of her deceased mother, Marta Reyes, a daughter and an
heir of Gavino Reyes. She did not sign for and in behalf of her husband, Dalmacio Gardiola, vendee of the
share of Rafael Reyes, Sr.
The same did not operate to divest the vendee of the share of Rafael Reyes, Sr. in the estate of Gavino.
Petitioners, as mere successors-in-interest of Rafael Reyes, Jr., son of Rafael Reyes, Sr., can only acquire that
which Rafael, Jr. could transmit to them upon his death. The latter never became the owner of Lot No. 1-A14 because it was sold by his father in 1943. The issuance of TCT No. T-27257 in the name of Rafael Reyes,
Jr., in so far as Lot No. 1-14-A is concerned, was clearly erroneous because he never became its owner. An
extrajudicial settlement does not create a light in favor of an heir. As this Court stated in the Barcelona case,
28 it is but a confirmation or ratification of title or right to property. Thus, since he never had any title or
right to Lot No. 1-14-A, the mere execution of the settlement did not improve his condition, and the
subsequent registration of the deed did not create any right or vest any title over the property in favor of the
petitioners as heirs of Rafael Reyes, Jr. The latter cannot give them what he never had before. Nemo dare
potest quod non habet.
There is one more point that should be stressed here. Petitioners' immediate predecessor-in-interest, Rafael
Reyes, Jr., never took any action against private respondents from the time his father sold the lot to the
latter. Neither did petitioners bring any action to recover from private respondents the ownership and
possession of the lot from the time Rafael Reyes, Jr. died. As categorically admitted by petitioners in their
complaint and amended complaint, it was only in or about September 1969 when, after the delivery of TCT
No. 27257 by Candido Hebron to them, that they definitely discovered that they were the owners of the
property in question. And yet, despite full knowledge that private respondents were in actual physical
possession of the property, it was only about thirteen and one-half (13 1/2) years later that they decided to
file an action for recovery of possession. As stated earlier, the original complaint was filed in the trial court
on 14 March 1983. There was then absolutely no basis for the trial court to place the burden on private
respondents to bring an action for reconveyance within four (4) years from their discovery of the issuance of
the transfer certificate of title in the name of Rafael Reyes, Jr.
The instant petition then is without merit.

WHEREFORE, judgment is hereby rendered DENYING the petition with costs against petitioners. SO
ORDERED.
[G.R. No. 94918. September 2, 1992.]
DANILO I. SUAREZ, EUFROCINA SUAREZ-ANDRES, MARCELO I. SUAREZ, JR., EVELYN SUAREZDE LEON and REGINIO I. SUAREZ, Petitioners, v. THE COURT OF APPEALS, VALENTE
RAYMUNDO, VIOLETA RAYMUNDO, MA. CONCEPCION VITO and VIRGINIA BANTA,
Respondents.
Villareal Law Offices, for Petitioners.
Nelson Loyola for Private Respondent.
SYLLABUS
1. CIVIL LAW; WILLS AND SUCCESSION; LEGITIME; PROPRIETARY INTEREST OF THE CHILDREN,
DIFFERENT AND ADVERSE FROM THEIR MOTHER. The legitime of the surviving spouse is equal to
the legitime of each child. The proprietary interest of petitioners in the levied and auctioned property is
different from and adverse to that of their mother. Petitioners became co-owners of the property not
because of their mother but through their own right as children of their deceased father. Therefore,
petitioners are not barred in any way from instituting the action to annul the auction sale to protect their
own interest.
DECISION
NOCON, J.:
The ultimate issue before Us is whether or not private respondents can validly acquire all the five (5) parcels
of land co-owned by petitioners and registered in the name of petitioners deceased father. Marcelo Suarez,
whose estate has not been partitioned or liquidated, after the said properties were levied and publicly sold
en masse to private respondents to satisfy the personal judgment debt of Teofista Suarez, the surviving
spouse of Marcelo Suarez, mother of herein petitioners.chanrobles law library
The undisputed facts of the case are as follows:chanrob1es virtual 1aw library
Herein petitioners are brothers and sisters. Their father died in 1955 and since then his estate consisting of
several valuable parcels of land in Pasig, Metro Manila has lot been liquidated or partitioned. In 1977,
petitioners widowed mother and Rizal Realty Corporation lost in the consolidated cases for rescission of
contract and for damages, and were ordered by Branch 1 of the then Court of First Instance of Rizal (now
Branch 151, RTC of Pasig) to pay, jointly and severally, herein respondents the aggregate principal amount
of about P70,000 as damages. 1
The judgment against petitioners mother and Rizal Realty Corporation having become final and executory,
five (5) valuable parcel of land in Pasig, Metro Manila, (worth to be millions then) were levied and sold on
execution on June 24, 1983 in favor of the private respondents as the highest bidder for the amount of
P94,170.000. Private respondents were then issued a certificate of sale which was subsequently registered or
August 1, 1983.
On June 21, 1984 before the expiration of the redemption period, petitioners filed a reinvindicatory action 2
against private respondents and the Provincial Sheriff of Rizal, thereafter docketed as Civil Case No. 51203,
for the annulment of the auction sale and the recovery of the ownership of the levied pieces of property.
Therein, they alleged, among others, that being strangers to the case decided against their mother, they
cannot be held liable therefor and that the five (5) parcels of land, of which they are co-owners, can neither
be levied nor sold on execution.
On July 31, 1984, the Provincial Sheriff of Rizal issued to private respondents a final deed of sale 3 over the
properties.

On October 22, 1984, Teofista Suarez joined by herein petitioners filed with Branch 151 a Motion for
Reconsideration 4 of the Order dated October 10, 1984, claiming that the parcels of land are co-owned by
them and further informing the Court the filing and pendency of an action to annul the auction sale (Civil
Case No. 51203), which motion however, was denied.chanrobles.com:cralaw:red
On February 25, 1985, a writ of preliminary injunction was issued enjoining private respondents from
transferring to third parties the levied parcels of land based on the finding that the auctioned lands are coowned by petitioners.
On March 1, 1985, private respondent Valente Raymundo filed in Civil Case No. 51203 a Motion to Dismiss
for failure on the part of the petitioners to prosecute, however, such motion was later denied by Branch 155,
Regional Trial Court, Pasig.
On December 1985, Raymundo filed in Civil Case No. 51203 an Ex-Parte Motion to Dismiss complaint for
failure to prosecute. This was granted by Branch 155 through an Order dated May 29, 1986, notwithstanding
petitioners pending motion for the issuance of alias summons to be served upon the other defendants in the
said case. A motion for reconsideration was filed but was later denied.
On October 10, 1984, RTC Branch 151 issued in Civil Case Nos. 21736-21739 an Order directing Teofista
Suarez and all persons claiming right under her to vacate the lots subject of the judicial sale; to desist from
removing or alienating improvements thereon; and to surrender to private respondents the owners
duplicate copy of the torrens title and other pertinent documents.
Teofista Suarez then filed with the then Court of Appeals a petition for certiorari to annul the Orders of
Branch 151 dated October 10, 1984 and October 14, 1986 issued in Civil Case Nos. 21736-21739.
On December 4, 1986 petitioners filed with Branch 155 a Motion for reconsideration of the Order 5 dated
September 24, 1986. In an Order dated June 10, 1987, 6 Branch 155 lifted its previous order of dismissal and
directed the issuance of alias summons.chanrobles law library : red
Respondents then appealed to the Court of Appeals seeking to annul the orders dated February 25, 1985, 7
May 19, 1989 8 and February 26, 1990 9 issued in Civil Case No. 51203 and further ordering respondent
Judge to dismiss Civil Case No. 51203. The appellate court rendered its decision on July 27, 1990, 10 the
dispositive portion of which reads:jgc:chanrobles.com.ph
"WHEREFORE, the petition for certiorari is hereby granted and the questioned orders dated February 25,
1985, May 19, 1989 and February 26, 1990 issued in Civil Case No. 51203 are hereby annulled, further
respondent Judge is ordered to dismiss Civil Case No. 51203." 11
Hence, this appeal.
Even without touching on the incidents and issues raised by both petitioner and private respondents and
the developments subsequent to the filing of the complaint, We cannot but notice the glaring error
committed by the trial court.
It would be useless to discuss the procedural issue on the validity of the execution and the manner of
publicly selling en masse the subject properties for auction. To start with, only one-half of the 5 parcels of
land should have been the subject of the auction sale.
The law in point is Article 777 of the Civil Code, the law applicable at the time of the institution of the case.
"The rights to the succession are transmitted from the moment of the death of the decedent."cralaw
virtua1aw library
Article 888 further provides:chanrobles.com.ph : virtual law library
"The legitime of the legitimate children and descendants consists of one-half of the hereditary estate of the
father and of the mother.
The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the

surviving spouse as hereinafter provided."cralaw virtua1aw library

Article 892 par. 2 likewise provides:jgc:chanrobles.com.ph
"If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a
portion equal to the legitime of each of the legitimate children or descendants."cralaw virtua1aw library
Thus, from the foregoing, the legitime of the surviving spouse is equal to the legitime of each child.
The proprietary interest of petitioners in the levied and auctioned property is different from and adverse to
that of their mother. Petitioners became co-owners of the property not because of their mother but through
their own right as children of their deceased father. Therefore, petitioners are not barred in any way from
instituting the action to annul the auction sale to protect their own interest.
WHEREFORE, the decision of the Court of Appeals dated July 27, 1990 as well as its Resolution of August
28, 1990 are hereby REVERSED and set aside; and Civil Case No. 51203 is reinstated only to determine that
portion which belongs to petitioners and to annul the sale with regard to said portion. SO ORDERED.
G.R. No. 116018 November 13, 1996
NELIA A. CONSTANTINO, petitioner,
vs.
COURT OF APPEALS, AURORA S. ROQUE, PRISCILLA S. LUNA and JOSEFINA S. AUSTRIA,
respondents.
BELLOSILLO, J.:
JOSEFA TORRES died intestate leaving a parcel of land located at Balagtas, Bulacan. Among her heirs are
respondents Aurora S. Roque, Priscilla S. Luna and Josefina S. Austria. Sometime in 1984, the heirs of Josefa
Torres, as vendors, and petitioner Nelia A. Constantino, as vendee, entered into a contract to sell a parcel of
land with a total land area of two hundred and fifty (250) square meters. The lot, owned in common by the
Torres heirs, is being occupied by petitioners' mother and sister. An adjoining lot, also co-owned by the
heirs, is being occupied by spouses Severino and Consuelo Lim. Pursuant to their agreement, the heirs
authorized petitioner to prepare the necessary Deed of Extrajudicial Settlement of Estate with Sale.
After having the document drafted with several spaces left blank including the specification as to the
metes and bounds of the land petitioner asked the heirs to affix their signatures on the document. The
heirs signed the document with the understanding that respondent Aurora S. Roque, one of the heirs,
would be present when the latter would seek permission from the Bureau of Lands and have the land
surveyed.
However, without the participation of any of the Torres heirs, the property was subsequently surveyed,
subdivided and then covered by TCT Nos. T-292265 and T-292266. Petitioner did not furnish the heirs with
copies of the Deed of Extrajudicial Settlement of Estate with Sale nor of the subdivision plan and the certificates
of title. Upon securing a copy of the deed from the Registry of Deeds, the respondents learned that the area
of the property purportedly sold to petitioner was much bigger than that agreed upon by the parties. It
already included the portion being occupied by the spouses Severino and Consuelo Lim.
On 2 June 1986, private respondents sent a letter to petitioner demanding the surrender to them of the deed
of settlement and conveyance, the subdivision plan and the certificates of title; but to no avail. On 25 June
1986 respondents filed with the Regional Trial Court of Bulacan an action for annulment of the deed and
cancellation of the certificates of title, with prayer for recovery of damages, attorney's fees and costs of suit. 1
Petitioner controverted the allegations of respondents by presenting the Deed of Extrajudicial Settlement of
Estate with Sale dated 10 October 1984 wherein respondents agreed to divide and adjudicate among
themselves the inherited property with an area of one thousand five hundred and three (1,503) square
meters. In the same document, they caused the subdivision of the property into two (2) lots according to
Plan No. PSD-03-009105 identified as Lot 4-A with an area of one thousand ninety-six (1,096) square meters,
and Lot 4-B with an area of four hundred and seven (407) square meters, and acknowledged the sale to
petitioner of said Lot 4-B. As a consequence, on 18 March 1985, the Register of Deeds issued TCT No. T292265 in the name of the heirs of Josefa Torres and TCT No. T-292266 in the name of petitioner.
In reply, private respondents reiterated that all the heirs signed the document before the land was surveyed
and subdivided, hence, there was as yet no definite area to be sold that could be indicated in the deed at the
time of the signing. They also claimed that they were not notified about the survey and the subdivision of

the lot and therefore they could not have agreed on the area supposedly sold to petitioner. The respondent
heirs insist that they could not have agreed to the extent of the area actually reflected in the deed because it
included the portion being occupied by the Lim spouses, which was already the subject of a previous
agreement to sell between them and their predecessor.
The trial court entertained serious doubts with respect to the preparation and due execution of the Deed of
Extrajudicial Settlement of Estate with Sale taking into account that (a) while petitioner claimed that all the
heirs signed before the notary public and in her presence, she was not able to enumerate all the signatories
to the document; (b) while petitioner claimed that the document was signed only after the survey of the
land was completed, or on 10 October 1984, such fact was negated by her own witness who testified that the
survey was conducted only on 16 October 1984; and, (c) while petitioner alleged that the document was
signed and notarized in Manila no explanation was offered why the same could not have been signed and
notarized in Bulacan where notaries public abound which could have been less inconvenient to the parties
concerned. Additionally, the trial court relied heavily on the assertions of respondents as reflected in their
demand letter that they did not give their consent to the sale of Lot 4-B.
Thus, on the basis of the evidence on record, the trial court on 27 September 1990 ordered the annulment
and cancellation of the Deed of Extrajudicial Settlement of Estate with Sale, TCT Nos. T-292265 and T-292266
and Subdivision Plan No. PSD-03-009105. It also ordered petitioner to pay private respondents P50,000.00
for moral damages, P15,000.00 for attorney's fees, and to pay the costs of suit. 2
On 16 March 1994 respondent Court of Appeals sustained the decision of the trial court, 3 and on 20 June
1994 denied the motion to reconsider its decision. 4
Petitioner faults respondent Court of Appeals: (a) for disregarding documentary evidence already
presented, marked and identified on a purely technical ground, and (b) for concluding that the Deed of
Extrajudicial Settlement of Estate with Sale did not reflect the true intent of the parties.
Petitioner argues that the trial court should not have denied her motion to admit formal offer of evidence
merely on the basis of technicality such as late filing, citing Siguenza v. Court of Appeals. 5 We are not
persuaded. Indeed, we held in Siguenza that rules of procedure are not to be applied in a very rigid and
technical sense as they are used only to help secure, not override, substantial justice. Yet the holding is
inapplicable to the present case as the trial court had a reasonable basis for denying petitioner's motion
On February 6, 1990, Atty. Ponciano Mercado, defendant's counsel, manifested in Court that
he has (sic) no more witness to present. He asked that he be given 15 days to make a formal
offer of evidence and which the Court granted. At the scheduled hearing of April 03, 1990,
Atty. Ponciano Mercado . . . . was not in Court. Atty. Veneracion, plaintiffs' counsel, called
the attention of the Court that Atty. Mercado has (sic) not yet filed and/or complied with the
Court Order dated February 06, 1990, which is to file his formal offer of evidence. On motion
of Atty. Veneracion, defendant's right to file a formal offer of evidence was deemed waived.
Atty. Veneracion waived the presentation of rebuttal evidence considering that the defendant
can (sic) no longer make a formal offer of evidence.
On May 11, 1990, the Court was in receipt of a motion to admit formal offer of exhibits filed
by the defendant thru counsel, Atty. Ponciano Mercado, on May 02, 1990. Considering that
the same was filed out of time and the plaintiffs having filed their memorandum already, the
motion to admit formal offer of exhibits was denied (emphasis supplied).
The trial court was correct in holding that petitioner waived the right to formally offer his evidence. A
considerable lapse of time, about three (3) months, had already passed before petitioner's counsel made
effort to formally offer his evidence. For the trial court to grant petitioner's motion to admit her exhibits
would be to condone an inexcusable laxity if not non-compliance with a court order which, in effect, would
encourage needless delays and derail the speedy administration of justice.
Petitioner also insists that the real intent of the parties was to make the entire Lot 4-B the subject matter of
the sale. She claims that during cross-examination respondent Aurora S. Roque admitted that she signed in
behalf of her co-heirs a receipt for P30,000.00 as partial payment for the lot occupied by Ka Baring and Lina
(relatives of petitioner) and Iling (Consuelo Lim). Moreover, according to petitioner, the assertions of private
respondents to petitioner contained in the demand letter should not necessarily be true and that the validity
of the Deed of Extrajudicial Settlement of Estate with Sale was not affected by the fact that it was notarized in a
place other than where the subject matter thereof was situated, citing Sales v. Court of Appeals. 6
These other arguments of petitioner are barren and futile. The admission of respondent Roque cannot
prevail in the face of the clear evidence that there was as yet no meeting of the minds on the land area to be
sold since private respondents were still awaiting the survey to be conducted on the premises. Obviously,
the trial court only lent credence to the assertions in the demand letter after having weighed the respective

evidence of the parties. But even without the letter, the evidence of respondents had already amply
substantiated their claims.
We ruled in the Sales case that the extrinsic validity of a document was not affected by the fact that it was
notarized in a place other than where the subject matter thereof was located. What is more important under
the Notarial Law is that the notary public has authority to acknowledge the document executed within his
territorial jurisdiction. The ruling in Sales is not applicable to the present case. Our concern here is not
whether the notary public had the authority to acknowledge the document executed within his territorial
jurisdiction but whether respondents indeed appeared before him and signed the deed. However, the
quantum of evidence shows that they did not.
The trial court correctly appreciated the fact that the deed was notarized in Manila when it could have been
notarized in Bulacan. This additional detail casts doubt on the procedural regularity in the preparation,
execution and signing of the deed. It is not easy to believe that petitioner and the ten (10) Torres heirs
traveled all the way to Manila to have their questioned document notarized considering that they, with the
exception of respondent Roque, are residents of Balagtas, Bulacan, where notaries public are easy to find.
Consequently, the claim of private respondents that they did not sign the document before a notary public
is more plausible than petitioner's feeble claim to the contrary.
Likewise, we find the allegation of respondents that they signed the deed prior to the survey, or before
determination of the area to be sold, worthy of credit as against the contention of petitioner that they signed
after the survey or on 10 October 1984. As found by the trial court, such contention was contradicted by
petitioner's own witness who positively asserted in court that the survey was conducted only on 16 October
1984 or six (6) days after the signing. Quite obviously, when respondents affixed their signatures on the
deed, it was still incomplete since petitioner who caused it to be prepared left several spaces blank, more
particularly as regards the dimensions of the property to be sold. The heirs were persuaded to sign the
document only upon the assurance of petitioner that respondent Roque, pursuant to their understanding,
would be present when the property would be surveyed after obtaining permission from the Bureau of
Lands. As it surfaced, the supposed understanding was merely a ruse of petitioner to induce respondents to
sign the deed without which the latter would not have given their conformity thereto. 7 Apparently,
petitioner deceived respondents by filling the blank spaces in the deed, having the lots surveyed and
subdivided, and then causing the issuance of transfer certificates of title without their knowledge, much less
consent. Thus all the elements of fraud vitiating consent for purposes of annulling a contract concur: (a) It
was employed by a contracting party upon the other; (b) It induced the other party to enter into the contract;
(c) It was serious; and, (d) It resulted in damages and injury to the party seeking annulment. 8
Perhaps, another compelling reason for the annulment of the document of settlement and conveyance is that
the second page thereof clearly manifests that the number of the subdivision plan and the respective areas
of Lots 4-A and 4-B were merely handwritten while all the rest of the statements therein were typewritten,
which leads us to the conclusion that handwritten figures thereon were not available at the time the
document was formalized.
WHEREFORE, their being no error to warrant a reversal of the decision and resolution in question of
respondent Court of Appeals, which affirmed the decision of the Regional Trial Court of Malolos, Bulacan,
Br. 22, the instant petition is DENIED.
SO ORDERED.
G.R. No. 124320 March 2, 1999
HEIRS OF GUIDO YAPTINCHAY AND ISABEL YAPTINCHAY, NAMELY: LETICIA ENCISOGADINGAN, EMILIO ENCISO, AURORA ENCISO, AND NORBERTO ENCISO, REPRESENTED BY
LETICIA ENCISO-GADINGAN, ATTORNEY-IN-FACT, petitioners,
vs.
HON. ROY S. DEL ROSARIO, PRESIDING JUDGE, RTC, BRANCH 21, IMUS, CAVITE; THE
REGISTER OF DEEDS FOR TRECE MARTIRES CITY, GEORGE T. CHUA, SPS. ALFONSO NG AND
ANNABELLE CHUA, SPS. ROSENDO L. DY AND DIANA DY, SPS. ALEXANDER NG AND
CRISTINA NG, SPS. SAMUEL MADRID AND BELEN MADRID, SPS. JOSE MADRID AND
BERNARDA MADRID, SPS. DAVID MADRID AND VIOLETA MADRID, JONATHAN NG, SPS.
VICTORIANO CHAN, JR. AND CARMELITA CHAN, SPS. MARIE TES C. LEE AND GREGORIE W.C.
LEE, JACINTO NG, JR., SPS. ADELAIDO S. DE GUZMAN AND ROSITA C. DE GUZMAN, SPS.
RICARDO G. ONG AND JULIE LIM-IT, SPS. MISAEL ADELAIDA P. SOLIMAN AND FERDINAND
SOLIMAN, SPS. MYLENE T. LIM AND ARTHUR LIM, EVELYN K. CHUA, GOLDEN BAY REALTY
AND DEVELOPMENT CORPORATION, respondents.

PURISIMA, J.:
At bar is a Petition for Certiorari under Rule 65 of the Revised Rules of Court assailing the Orders dated
October 25, 1995 and February 23, 1996, respectively, of Branch 21 of the Regional Trial Court in Imus,
Cavite ("RTC").
The facts that matter are, as follows:
Petitioners claim that they are the legal heirs of the late Guido and Isabel Yaptinchay, the owners-claimants
of Lot No. 1131 with an area of 520,638 and Lot No. 1132 with an area of 96,235 square meters, more or less
situated in Bancal, Carmona, Cavite.
On March 17, 1994, petitioners executed an Extra-Judicial Settlement of the estate of the deceased Guido and
Isabel Yaptinchay.
On August 26, 1994, petitioners discovered that a portion, if not all, of the aforesaid properties were titled in
the name of respondent Golden Bay Realty and Development Corporation ("Golden Bay") under Transfer
Certificate of Title Nos. ("TCT") 225254 and 225255. With the discovery of what happened to subject parcels
of land, petitioners filed a complaint for ANNULMENT and/or DECLARATION OF NULLITY OF TCT
NO. 493363, 493364, 493665, 493366, 493367; and its Derivatives; As Alternative Reconveyance of Realty
WITH A PRAYER FOR A WRIT OF PRELIMINARY INJUNCTION and/or RESTRAINING ORDER WITH
DAMAGES, docketed as RTC BCV-94-127 before Branch 21 of the Regional Trial Court in Imus, Cavite.
Upon learning that "Golden Bay" sold portions of the parcels of land in question, petitioners filed with the
"RTC" an Amended Complaint to implead new and additional defendants and to mention the TCTs to be
annulled. But the respondent court dismissed the Amended Complaint.
Petitioners moved for reconsideration of the Order dismissing the Amended Complaint. The motion was
granted by the RTC in an Order 1 dated July 7, 1995, which further allowed the herein petitioners to file a
Second Amended Complaint, 2 which they promptly did.
On August 12, 1995, the private respondents presented a Motion to Dismiss 3 on the grounds that the
complaint failed to state a cause of action, that plaintiffs did not have a right of action, that they have not
established their status as heirs, that the land being claimed is different from that of the defendants, and that
plaintiffs' claim was barred by laches. The said Motion to Dismiss was granted by the respondent court in
its Order 4 dated October 25, 1995, holding that petitioners "have not shown any proof or even a semblance
of it except the allegations that they are the legal heirs of the above-named Yaptinchays that they have
been declared the legal heirs of the deceased couple."
Petitioners interposed a Motion for Reconsideration 5 but to no avail. The same was denied by the RTC in its
Order 6 of February 23, 1996.
Undaunted, petitioners have come before this Court to seek relief from respondent court's Orders under
attack.
Petitioners contend that the respondent court acted with grave abuse of discretion in ruling that the issue of
heirship should first be determined before trial of the case could proceed. It is petitioners' submission that
the respondent court should have proceeded with the trial and simultaneously resolved the issue of
heirship in the same case.
The petition is not impressed with merit.
To begin with, petitioners' Petition for Certiorari before this Court is an improper recourse. Their proper
remedy should have been an appeal. An order of dismissal, be it right or wrong, is a final order, which is
subject to appeal and not a proper subject of certiorari. 7 Where appeal is available as a remedy certiorari will
not lie. 8
Neither did the respondent court commit grave abuse of discretion in issuing the questioned Order
dismissing the Second Amended Complaint of petitioners, as it aptly ratiocinated and ruled:
But the plaintiffs who claimed to be the legal heirs of the said Guido and Isabel Yaptinchay
have not shown any proof or even a semblance of it except the allegations that they are the
legal heirs of the aforementioned Yaptinchays that they have been declared the legal heirs of
the deceased couple. Now, the determination of who are the legal heirs of the deceased couple
must be made in the proper special proceedings in court, and not in an ordinary suit for
reconveyance of property. This must take precedence over the action for reconveyance (Elena
c. Monzon, et al., v. Angelita Taligato, CA-G-R- No. 33355, August 12, 1992).

In Litam, etc., et. al. v. Rivera 9 this court opined that the declaration of heirship must be made in an
administration proceeding, and not in an independent civil action. This doctrine was reiterated in Solivio v.
Court of Appeals 10 where the court held:
In Litam, et al. v. Rivera, 100 Phil. 364, where despite the pendency of the special proceedings
for the settlement of the intestate estate of the deceased Rafael Litam, the plaintiffs-appellants
filed a civil action in which they claimed that they were the children by a previous marriage
of the deceased to a Chinese woman, hence, entitled to inherit his one-half share of the
conjugal properties acquired during his marriage to Marcosa Rivera, the trial court in the
civil case declared that the plaintiffs-appellants were not children of the deceased, that the
properties in question were paraphernal properties of his wife, Marcosa Rivera, and that the
latter was his only heir. On appeal to this Court, we ruled that "such declarations (that
Marcosa Rivera was the only heir of the decedent) is improper, in Civil Case No. 2071, it
being within the exclusive competence of the court in Special Proceedings No. 1537, in which
it is not as yet, in issue, and, will not be, ordinarily, in issue until the presentation of the
project of partition." (p. 378).
The trial court cannot make a declaration of heirship in the civil action for the reason that such a declaration
can only be made in a special proceeding. Under Section 3, Rule 1 of the 1997 Revised Rules of Court, a civil
action is defined as "one by which a party sues another for the enforcement or protection of a right, or the
prevention or redress of a wrong" while a special proceeding is "a remedy by which a party seeks to
establish a status, a right, or a particular fact." It is then decisively clear that the declaration of heirship can
be made only in a special proceeding inasmuch as the petitioners here are seeking the establishment of a
status or right.
We therefore hold that the respondent court did the right thing in dismissing the Second Amended
Complaint, which stated no cause of action. In Travel Wide Associated Sales (Phils.), Inc. v. Court of Appeals, 11 it
was ruled that:
. . . If the suit is not brought in the name of or against the real party in interest, a motion to
dismiss may be filed on the ground that the complaint states no cause of action.
WHEREFORE, for lack of merit, the Petition under consideration is hereby DISMISSED. No pronouncement
as to costs.
SO ORDERED.
G.R. No. 149017

November 28, 2008

VALENTE RAYMUNDO,petitioner,
vs.
TEOFISTA ISAGON VDA. DE SUAREZ, DANILO I. SUAREZ, EUFROCINA SUAREZ, MARCELO I.
SUAREZ, JR, EVELYN SUAREZ, ET AL., respondents.
DECISION
NACHURA, J.:
This petition, filed under Rule 65 of the Rules of Court, assails the Court of Appeals (CA) Decision1 and
Resolution2 in CA-G.R. SP No. 58090 which reversed, set aside and recalled the Regional Trial Court (RTC)
Orders3 in Civil Case No. 51203.
First, the long settled facts.
Marcelo and Teofista Isagon Suarez'4 marriage was blessed with both material wealth and progeny in herein
respondents, namely, Danilo,5 Eufrocina, Marcelo Jr., Evelyn, and Reggineo,6 all surnamed Suarez. During
their marriage, governed by the conjugal partnership of gains regime, they acquired numerous properties,
which included the following: (1) a parcel of land situated in Barrio Caniogan, Pasig with an area of 348
square meters covered by Transfer Certificate of Title (TCT) No. 30680; (2) property located in
Pinagbuhatan, Pasig, with an area of 1,020 square meters under Tax Declaration No. A-016-01003; and (3)
Lot Nos. 5, 6 & 7, Block 2 covered by Tax Declaration No. A-01700723 (subject properties).
After the death of Marcelo Sr. in 1955, Teofista and herein respondents, as well as Elpidio Suarez, 7 executed
an Extrajudicial Settlement of Estate,8 partitioning Marcelo Sr.'s estate, thus:
WHEREAS, the said deceased is survived by the parties hereto who are his only legal heirs:
TEOFISTA ISAGON, being the surviving spouse, and EUFROCINA S. ANDRES, ELPIDIO SUAREZ,
DANILO SUAREZ, EVELYN SUAREZ, MARCELO SUAREZ, JR. and REGGINEO SUAREZ, being
the legitimate children of the deceased with the said TEOFISTA ISAGON;

WHEREAS, the minors ELPIDIO, SUAREZ, DANILO SUAREZ, EVELYN SUAREZ, MARCELO
SUAREZ, JR. and REGGINEO SUAREZ are represented herein by EUFROCINA S. ANDRES, in her
capacity as the guardian and legal administrator of the property of the said minors;
WHEREAS, there are no known debts or financial obligations of whatever nature and amount
against the estate of the deceased;
NOW, THEREFORE, in consideration of the foregoing premises, the Parties have agreed to settle
and liquidate the assets of the conjugal partnership between the deceased and TEOFISTA ISAGON,
and to settle and adjudicate the estate of the said deceased, by and pursuance to these presents, in
the following manner, to wit:
1. That TEOFISTA ISAGON, as the surviving spouse and partner of the deceased, shall receive in
absolute and exclusive ownership the following properties as her lawful share in the assets of the
conjugal partnership of gains between her and the deceased, to wit:
(a) Half (1/2) interest and participation in the parcel of land covered by Tax Declaration No.
6938, situated at Sitio Pantayan, Municipality of Taytay, Province of Rizal;
(b) Half (1/2) interest and participation in the parcel of land covered by Tax Declaration No.
6939, situated at Sitio Pantayan, Municipality of Taytay, Province of Rizal;
(c) Half (1/2) interest and participation in the parcel of land covered by TCT No. 38291,
situated at Barrio Rosario, Municipality of Pasig, Province of Rizal;
(d) Half (1/2) interest and participation in the parcel of land covered by TCT No. 38290,
situated at Barrio Rosario, Municipality of Pasig, Province of Rizal;
(e) TWELVE THOUSAND FIVE HUNDRED THIRTY PESOS AND NINETY (P12,530.90)
deposited with the Commercial Bank and Trust Company of the Philippines, and THIRTYNINE PESOS (P39.00) deposited with Prudential Bank.
2. That the Parties TEOFISTA ISAGON, EUFROCINA S. ANDRES, ELPIDIO SUAREZ, DANILO
SUAREZ, EVELYN SUAREZ, MARCELO SUAREZ, JR. and REGGINEO SUAREZ, shall each and all
receive and be entitled to a share equivalent to one-seventh (1/7) of the estate of the deceased
MARCELO SUAREZ, which estate is comprised of the following properties, to wit:
(a) A parcel of land covered by TCT No. 30680, situated at Barrio Kaniogan, Municipality of
Pasig, Province of Rizal, with an assessed value of P4,150.00.
(b) Three (3) parcels of land covered by TCT Nos. 33982, 33983 and 33984, situated at Barrio
Pineda, Municipality of Pasig, Province of Rizal, with an assessed value of P560.00.
(c) A parcel of land covered by TCT 33986, situated at Barrio Pineda, Municipality of Pasig,
Province of Rizal, with an assessed value of P440.00.
(d) Two (2) parcels of land, being Lots Nos. 42 and 44 of the amendment-subdivision plan
TY-4653-Amd., being a portion of Lot 2 described on the original plan II-4653, G.L.R.O.
Record No. _____, situated at Barrio Santolan, Municipality of Pasig, Province of Rizal, with a
total assessed value of P590.00.
(e) Two parcels of land, being Lots Nos. 43 and 45 of the amendment-subdivision plan TY4653-Amd., being a portion of Lot 2 described on the original plan II-4653, G.L.R.O. Record
No. _______, situated at Barrio Santolan, Municipality of Pasig, Province of Rizal, with a total
assessed value of P1,190.00.
(f) A parcel of land, being Lot No. 6, Block 269 of the subdivision plan pos-112, being a
portion of Lot 2, Block 348, Psd-3188, G.L.R.O. Record Nos. 375,699 and 917, situated at San
Felipe Neri, Province of Rizal, with an assessed value of P6,340.00.
(g) A parcel of land covered by OCT No. 391, situated in the Municipality of Taytay, Province
of Rizal, with an assessed value of P1,840.00.
(h) TWELVE THOUSAND (12,000) shares of stock of the Consolidated Mines, Inc.
represented by Certificate No. 71-5-B (for 1,000 shares) and Certificate No. 12736 (for 11,000
shares).
PROVIDED, that their title to the properties hereinabove mentioned shall be in common and the
share of each heir being pro indiviso.
Curiously, despite the partition, title to the foregoing properties, explicitly identified in the Extrajudicial
Settlement of Estate as forming part of Marcelo's and Isagon's property regime, remained in the couple's

name. Not surprisingly, Teofista continued to administer and manage these properties. On the whole, apart
from those now owned exclusively by Teofista, all the properties were held pro indiviso by Teofista and her
children; and respective titles thereto were not changed, with Teofista as de facto administrator thereof.
In 1975, Rizal Realty Corporation (Rizal Realty) and Teofista, the latter owning ninety percent (90%) of the
former's shares of stock, were sued by petitioner Valente Raymundo, his wife Violeta, Virginia Banta and
Maria Concepcion Vito (plaintiffs) in consolidated cases for Rescission of Contract and Damages, docketed
as Civil Case Nos. 21736 to 21739. Thereafter, in 1975, the then Court of First Instance (CFI) of Rizal, Branch
1, rendered judgment: (1) rescinding the respective contracts of plaintiffs with Rizal Realty and Teofista, and
(2) holding the two defendants solidarily liable to plaintiffs for damages in the aggregate principal amount
of about P70,000.00.9
When the judgment of the CFI became final and executory, herein subject properties were levied and sold
on execution on June 24, 1983 to satisfy the judgment against Teofista and Rizal Realty. The aforementioned
plaintiffs were the highest bidder, and bought the levied properties for the amount of P94,170.00. As a
result, a certificate of sale was issued to them and registered in their favor on August 1, 1983. On July 31,
1984, the Provincial Sheriff of Rizal issued a final deed of sale over the subject properties.
Parenthetically, before expiration of the redemption period, or on June 21, 1984, herein respondents filed a
revindicatory action against petitioner Valente, Violeta, Virginia and Maria Concepcion, docketed as Civil
Case No. 51203, for the annulment of the auction sale and recovery of ownership of the levied properties.
Essentially, respondents alleged in their complaint that they cannot be held liable for the judgment rendered
against their mother, Teofista, not having been impleaded therein; and consequently, the subject properties,
which they own pro indiviso with their mother, can neither be levied nor be sold on execution.
Meanwhile, the RTC, Branch 151, formerly the CFI, Branch 1, in Civil Case Nos. 21376 to 21379, issued an
Order10 directing Teofista: (1) to vacate the subject properties, (2) to desist from despoiling, dismantling,
removing or alienating the improvements thereon, (3) to place petitioner Valente, Violeta, Virginia and
Maria Concepcion in peaceful possession thereof, and (4) to surrender to them the owner's duplicate copy of
the torrens title and other pertinent documents. Herein respondents, joined by their mother, Teofista, filed a
Motion for Reconsideration arguing that the subject properties are co-owned by them and further informing
the RTC of the filing and pendency of Civil Case No. 51203. Nonetheless, the trial court denied Teofista's
and herein respondents' motion, reiterated its previous order, which included, among others, the order for
Teofista and all persons claiming right under her, to vacate the lots subject of the judicial sale.
Undaunted, Teofista and herein respondents filed a petition for certiorari before the CA to annul the
foregoing orders. The appellate court, on July 6, 1987, dismissed Teofista's and herein respondents' petition,
thus:
We believe this petition cannot prosper for two reasons. First, as purported case for certiorari it fails
to show how the respondent judge had acted without or in excess of jurisdiction or with grave abuse
of discretion. The two orders being assailed were preceded by a final judgment, a corresponding
writ of execution, a levy on execution and a judicial sale, all of which enjoy a strong sense
presumption of regularity.
Secondly, as far as [petitioner] Teofista Suarez is concerned, she cannot complain about the levy
because she was a party in the consolidated cases where judgment was rendered against her in her
personal capacity. Since she did not appeal from the decision, she cannot say that the judgment is
erroneous for an obligation that belong to the corporation. And with respect to the children of
Teofista Suarez, who are co-petitioners in this proceedings [herein respondents], suffice it to point
out that not being parties in the consolidated cases, what they should have done was to immediately
file a third party claim. The moment levy was made on the parcels of land, which they claim are
theirs by virtue of hereditary succession, they should have seasonably filed such claim to protect
their rights. As the record discloses, however, the children chose to remain silent, and even allowed
the auction sale to be held, filing almost a year later a half-hearted complaint to annul the
proceedings which they allowed to be dismissed by not diligently prosecuting it.
In Santos v. Mojica (10 SCRA 318), a partition case with third- party claimants, the Supreme Court
came out with the following ruling: "The procedure (a petition for certiorari) followed by him (a
petitioner not party to the original partition case) in vindicating his right is not the one sanctioned by
law, for he should have filed a separate and independent action making parties therein the sheriff
and the plaintiffs responsible for the execution xxx. It can, therefore, be said that (he) acted
improperly in filing the present petition because his remedy was to file a separate and independent
action to vindicate his ownership over the land.

WHEREFORE, the petition is denied and the restraining order previously issued is DISSOLVED,
with costs against petitioners.11
On the other litigation front concerning Civil Case No. 51203, a writ of preliminary injunction was issued by
the RTC Pasig, Branch 155, on February 25, 1985, enjoining petitioner Valente, Violeta, Virginia and Maria
Concepcion from transferring to third parties the levied properties based on its preliminary finding that the
auctioned properties are co-owned by Teofista and herein respondents. Subsequently, however, Civil Case
No. 51203 was dismissed by the RTC, Branch 155, at the instance of petitioner Valente for failure of herein
respondents to prosecute. But in yet another turn of events, the RTC, Branch 155, lifted its previous order of
dismissal and directed the issuance of alias summons.
Thus, it was now petitioner Valente's, Violeta's, Virginia's and Maria Concepcion's turn to file a petition for
certiorari with the CA, assailing the various orders of the RTC, Branch 155, which all rejected their bid to
dismiss Civil Case No. 51203. The CA granted their petition, thus:
And the fact that herein private respondents, as the legal heirs of Teofista Vda. de Suarez and
supposedly not parties in Civil Case Nos. 21376 - 21379 does not preclude the application of the
doctrine of res judicata since, apart from the requisites constitutive of this procedural tenet, they were
admittedly the children of Teofista Suarez, who is the real party-in-interest in the previous final
judgment. As successors-in-interest of Teofista Suarez, private respondents merely stepped into the
shoes of their mother in regard to the levied pieces of property. Verily, there is identity of parties,
not only where the parties in both actions are the same, but where there is privity with them as in the
cases of successors-in-interest by title subsequent to the commencement of the action or where there
is substantial identity.
Finally, the action to annul the judicial sale filed by herein private respondents is not the
reinvindicatory suit, much less the third party claim contemplated by Section 17 of Rule 39.
WHEREFORE, the petition for certiorari is hereby granted and the questioned orders dated February
25, 1985, May 19, 1989 and February 26, 1990 issued in Civil Case No. 51203 are hereby annulled;
further respondent judge is ordered to dismiss Civil Case No. 51203. 12
From this ruling, herein respondents appealed to the Supreme Court. In Suarez v. Court of Appeals, 13 we
reversed the appellate court, thus:
Even without touching on the incidents and issues raised by both petitioner [herein respondents]
and private respondents [petitioner Valente, Violeta, Virginia and Maria Concepcion] and the
developments subsequent to the filing of the complaint, [w]e cannot but notice the glaring error
committed by the trial court.
It would be useless to discuss the procedural issue on the validity of the execution and the manner of
publicly selling en masse the subject properties for auction. To start with, only one-half of the 5
parcels of land [subject properties] should have been the subject of the auction sale.
The law in point is Article 777 of the Civil Code, the law applicable at the time of the institution of
the case:
The rights to the succession are transmitted from the moment of the death of the decedent."
Article 888 further provides:
"The legitime of the legitimate children and descendants consists of one-half of the hereditary
estate of the father and of the mother.
The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and
of the surviving spouse as hereinafter provided."
Article 892, par. 2 likewise provides:
"If there are two or more legitimate children or descendants, the surviving spouse shall be
entitled to a portion equal to the legitime of each of the legitimate children or descendants."
Thus, from the foregoing, the legitime of the surviving spouse is equal to the legitime of each child.
The proprietary interest of petitioners [herein respondents] in the levied and auctioned property is
different from and adverse to that of their mother [Teofista]. Petitioners [herein respondents] became
co-owners of the property not because of their mother [Teofista] but through their own right as
children of their deceased father [Marcelo Sr.]. Therefore, petitioners [herein respondents] are not
barred in any way from instituting the action to annul the auction sale to protect their own interest.

WHEREFORE, the decision of the Court of Appeals dated July 27, 1990 as well as its Resolution of
August 28, 1990 are hereby REVERSED and set aside; and Civil Case No. 51203 is reinstated only to
determine that portion which belongs to petitioners and to annul the sale with regard to said
portion.
It was at this point when another series of events transpired, culminating in the present petition.
Upon our reinstatement of Civil Case No. 51203, each and every pleading filed by herein respondents, as
plaintiffs therein, was hotly contested and opposed by therein defendants, including petitioner Valente.
Moreover, even at that stage, when the case had been remanded with a directive to "determine that portion
which belongs to [herein respondents] and to annul the sale with regard to said portion," Civil Case No.
51203 had to be re-raffled and transferred, for varied reasons, to the different court branches in Pasig City.
In between all these, petitioner Valente, along with the other defendants, repeatedly filed a Motion to
Dismiss Civil Case No. 51203 for the purported failure of herein respondents to prosecute the case. Most of
these Motions to Dismiss were denied.
With each transfer of Civil Case No. 51203, the judge to which the case was raffled had to study the records
anew. Expectedly, part of the records went missing and were lost. On April 12, 1993, the Clerk of Court of
RTC, Branch 71, to which Civil Case No. 51203 was remanded, filed a report on the records of the case, to
wit:
1. The first volume of the record in the above-entitled case was recorded as received on June 20,
1990, by Sheriff Alejandro O. Loquinario;
2. That the staff of Branch 71 at this time was sharing a small room with Branch 161 at the First Floor
of the Justice Hall, and as the Branch was newly formed, it had no equipment or furniture of its own,
and was still undermanned;
3. That sometime in August 1990, Branch 71 moved to the staffroom of Branch 159 at the Second
Floor of the Justice Hall;
4. That on October 25, 1990, this Court received a Notice of Judgment dated October 22, 1990 from
the Court of Appeals that ruled the dismissal of the above-entitled case, and as per standing
instructions of Judge Graduacion A. Reyes-Claravall, the same was bound as volume 2 of the case;
5. That just before the Christmas vacation in 1991, the branch was forced to hastily move all of its
records and equipment to branch 69, because of the unexpected notice we received that the room we
were occupying was to be demolished in order to meet the schedule for the renovation of the
building;
6. That unfortunately, the room was demolished before the undersigned could make a last check to
see if everything was transferred;
7. That it was only later on that this office discovered that important documents were indeed lost,
including transcripts of stenographic notes in a case that was submitted for decision;
8. That sometime in May 1992, the branch moved its Office to its present location;
9. That on March 8, 1993, this Court received a copy of a Decision of the Supreme Court reversing
the earlier ruling of the Court of Appeals;
10. That it was at this time that the first volume of this case, which was bundled along with other
cases which were decided and/or archived, was reported as missing;
11. That from the time the same was found to be missing, Judge Claravall ordered that a search for
the same be made in all of the offices wherein this branch was forced to share a room with, as well as
the Court of Appeals, in the event that the same was transmitted to said Court;
12. That all the efforts were in vain, as said record could not be located anywhere;
13. That the undersigned now concludes that the first volume of the above-entitled case was
probably lost during the renovation of the Justice Hall Building, and will have to be reconstituted
with the use of documents in the possession of the parties, or documents entered as exhibits in other
Courts.14
In this regard, herein respondents filed a Motion for Reconstitution of Records 15 of the case. Initially,
petitioner Valente, and the other defendants -- Violeta, Virginia and Maria Concepcion -- opposed the
motion.16 However, the trial court eventually granted the motion for reconstitution, and ordered petitioner
Valente and the other defendants to submit a copy of their Answer filed thereat and copies of other
pleadings pertinent to the case.17

Thereafter, three (3) incidents, among numerous others, set off by the parties' pleadings, are worth
mentioning, to wit:
1. A Motion for Leave to File and Admit Supplemental Complaint18 filed by herein respondents. The
Supplemental Complaint additionally prayed that the levy and sale at public auction of the subject
properties be annulled and set aside, as the bid price was unconscionable and grossly inadequate to the
current value of the subject properties. The Supplemental Complaint further sought a re-bidding with
respect to Teofista's share in the subject properties. Finally, it prayed that TCT No. 6509 in the name of
petitioner Valente, Violeta, Virginia and Maria Concepcion be cancelled and TCT No. 30680 in the name of
Marcelo Suarez, married to Teofista Isagon, be reinstated.
2. A Manifestation and Motion (to Execute/Enforce Decision dated September 4, 1992 of the Supreme
Court)19 filed by herein respondents pointing out that the Supreme Court itself had noted the current
increased value of the subject properties and that petitioner Valente, Violeta, Virginia and Maria
Concepcion unjustly enriched themselves in appropriating the subject properties worth millions then, for a
measly bid price of P94,170.00, for a judgment obligation worth only P70,000.00.
3. An Urgent Motion [to direct compliance by plaintiffs (herein respondents) with Supreme Court Decision
or to consider the matter submitted without evidence on the part of plaintiffs]20 filed by therein defendants,
including herein petitioner Valente, pointing out that plaintiffs (herein respondents) have yet to comply
with the RTC, Branch 67 Order commanding them to submit (to the RTC) any evidence showing settlement
of the estate of the deceased Marcelo Suarez, in order for the court to determine the portion in the estate
which belongs to Teofista. The Urgent Motion stated in paragraph 2, thus:
2. The defendants [including herein petitioner Valente] did everything possible to expedite the
disposition of this case while the plaintiffs [herein respondents] did everything possible to DELAY
the disposition of the same obviously because the plaintiffs [herein respondents] are in full
possession and enjoyment of the property in dispute. In its decision of September 4, 1992, the
SUPREME COURT nullified TWO final and executory DECISIONS of the Court of Appeals in an
unprecedented action. In said decision, the Supreme Court ordered the plaintiffs [herein
respondents] to establish with evidence their personality as heirs of Marcelo Suarez, and after being
able to do so, to adduce evidence that would determine what portion belongs to plaintiffs hence the
above matters need be litigated upon before the RTC can "annul the sale with regard to said portion"
(belonging to the plaintiffs alleged heirs).
On these incidents, the records reveal the following Orders issued by the different branches of the RTC:
1. Order dated March 17, 1995, issued by Presiding Judge Rodrigo B. Lorenzo of Branch 266, Pasig City,
admitting herein respondents' Supplemental Complaint. 21
2. Order dated January 22, 1996, issued by Judge Apolinario B. Santos resolving: (a) herein respondents'
Manifestation and Motion (to execute/enforce Decision dated September 4, 1992 of the Supreme Court), and
(b) therein defendants' (including herein petitioner Valente's) Request for Answer to Written
Interrogatories.22 The RTC, Branch 67, resolved the incidents, thus:
From the foregoing uncontroverted facts, this Court is convinced beyond a shadow of doubt that the
Decision of the Supreme Court of September 4, 1992, being the final arbiter in any judicial dispute,
should be implemented for the following reasons:
xxxx
On the request for Answers to Written Interrogatories filed by the defendants, it is obvious that at
this stage of the proceedings where the Supreme Court had already pronounced the undisputed
facts, which binds this court, the answer sought to be elicited through written interrogatories,
therefore, are entirely irrelevant, aside from having been filed way out of time.
WHEREFORE, premises considered, this court, implements the decision of the Supreme Court dated
September 4, 1992 which mandates that:
"xxx and Civil Case No. 51203 is reinstated only to determine that portion which belongs to
petitioner and to annul the sale with regard to said portion."
In order to enforce such mandate of the Supreme Court, this court orders that:
a. The auction sale of the five (5) parcels of land and all prior and subsequent proceedings in
relation thereto are declared null and void.
b. Transfer Certificate of Title No. 6509 in the name of defendant Valente Raymundo is also
declared null and void, and the Register of Deeds of Rizal, Pasig City, is ordered to issue a

new one in the name of the deceased Marcelo Suarez or to reinstate Transfer Certificate of
Title No. 30680 in the name of Marcelo Suarez.
c. Teofista Suarez is ordered to reimburse the amount of P94,170.00, plus legal interest from
the date of issuance of this order, and failing which, the portion of the estate of Marcelo
Suarez belonging to the surviving spouse, Teofista Suarez, may be levied on execution.
d. [Herein respondents], including Teofista Suarez, are hereby ordered to submit to this court
any evidence showing settlement of the estate of the deceased, Marcelo Suarez, in order for
this court to determine the portion in the estate which belongs to Teofista Suarez.
Therein defendants, including petitioner Valente, filed a Motion for Reconsideration which the trial court
denied on May 29, 1996.
3. Order dated September 10, 1996, issued by Judge Santos denying the appeal interposed by petitioner
Valente from the January 22, 1996 and May 29, 1996 Orders, ruling that these are interlocutory orders, and,
therefore, not appealable.23
4. Order dated April 8, 1999, issued by Pairing Judge Santiago Estrella which declared, thus:
Considering that counsel for the plaintiffs does not have the birth certificates of the heirs of the plaintiff to
prove their affiliation with the deceased which is one of the matters written in the decision of the higher
court which must be complied with, and in order for counsel for the plaintiffs [herein respondents] to have
the opportunity to complete all documentary evidence and in view of abbreviating the proceedings and as
prayed for, today's scheduled pre-trial is re-set for the last time to May 19, 1999 at 8:30 a.m.
In this connection, counsel for plaintiffs [herein respondents] is advised to secure all the
documentary evidence she needs material to this case which will expedite the disposition of this
case.24
This last Order and therein defendants' Urgent Motion spawned another contentious issue between the
parties. In this connection, Judge Estrella issued an Order25 requiring the parties to file their respective
position papers due to the "divergent views on the nature of the hearing that should be conducted in
compliance with" our decision in Suarez. Both parties duly filed their position papers, with herein
respondents attaching thereto a copy of the Extrajudicial Settlement of Estate executed by the heirs of
Marcelo Suarez in 1957.
In resolving this latest crossfire between the parties, the RTC, Branch 67, issued an Order dated January 11,
2000, which reads, in part:
This Court is of the view that the Honorable Supreme Court is not a trier of facts, precisely it
directed that the records of this case be remanded to the Regional Trial Court for further
proceedings.
xxxx
It is a matter of record that there was no trial on the merits completed in the Regional Trial Court.
xxx The Supreme Court reversed the judgment of the Court of Appeals and ordered the
reinstatement of Civil Case No. 51203. Naturally, there was no trial on the merits before this Court
that allowed the parties to adduce evidence to establish their respective claims in the plaintiffs'
[herein respondents] complaint and in the defendants' [including petitioner Valente] counter-claim,
respectively. It is in this context that the Honorable Supreme Court reinstated the "action [of herein
respondents] to annul the auction sale to protect their [herein respondents] own interest.
While this Court is of the view that trial on the merits is necessary for the purpose of giving the
plaintiffs [herein respondents] a chance to adduce evidence to sustain their complaint and the
defendants [including petitioner Valente] to prove their defense, consistent with the directive of the
Honorable Supreme Court (in its Decision promulgated on September 4, 1992), the Court is,
however, confronted with the very recent decision of the Honorable Supreme Court in "Heirs of
Guido Yaptinchay, et al. vs. Del Rosario, et al., G.R. No. 124320, March 2, 1999" where it held that The declaration of heirship must be made in an administration proceeding, and not in an
independent civil action. This doctrine was reiterated in Solve vs. Court of Appeals (182
SCRA 119, 128). The trial court cannot make a declaration of heirship in the civil action for
the reason that such a declaration can only be made in a special proceeding. Under Section 3,
Rule 1 of the 1997 Revised Rules of Court, a civil action is defined as "one by which a party
sues another for the enforcement or protection of a right, or the prevention or redress of a
wrong" while a special proceeding is "a remedy by which a party seeks to establish a status, a
right, or a particular fact." It is then decisively clear that the declaration of heirship can be

made only in a special proceeding inasmuch as the petitioners here are seeking the
establishment of a status or right.
In as much as the leading case on the matter is that of "Heirs of Yaptinchay v. Del Rosario, G.R. No.
124320, March 2, 1999" it is left with no choice but to obey said latter doctrine.
WHEREFORE, the foregoing premises considered, this Court holds that in the light of the doctrine
laid down in the case of "Heirs of Yaptinchay vs. Del Rosario, G.R. No. 124320, March 2, 1999" this
case is dismissed without prejudice to the plaintiffs' [herein respondents'] filing a special proceeding
consistent with said latest ruling.26
Herein respondents moved for reconsideration thereof which, however, was denied by the RTC, Branch 67
on March 14, 2000.27
Consequently, herein respondents filed a petition for certiorari before the CA alleging grave abuse of
discretion in the trial court's order dismissing Civil Case No. 51203 without prejudice. All the defendants in
the trial court were impleaded as private respondents in the petition. Yet, curiously, only petitioner Valente
filed a Comment thereto. The appellate court granted the petition, recalled and set aside RTC, Branch 67's
Orders dated January 11, 2000 and March 14, 2000, and reinstated Judge Santos' Orders dated May 29, 1996
and September 6, 1996. It disposed of the petition, thus:
We agree with [herein respondents].
On September 4, 1992, the Supreme Court (G.R. No. 94918) reversed the decision of the Court of
Appeals and mandates that Civil Case No. 51203 be reinstated in order to determine the portion in
the estate which belongs to Teofista Suarez. The sale of the parcels of land was declared null and
void. Necessarily, the title (TCT No. 5809) in the name of respondents was also declared null and
void. xxx
xxxx
Hon. Apolinario Santos of Br. 67, Regional Trial Court, Pasig City, on January 22, 1996 and on
motion of [herein respondents], issued an order to execute/enforce the decision of the Supreme
Court xxx.
xxxx
[Petitioner Valente, Violeta, Virginia and Maria Concepcion] filed a notice of appeal on the order of
Judge Santos. The appeal, on motion of [herein respondents] was denied on September 10, 1996.
Obviously, the decision of the Supreme Court had become final and executory. Likewise, both orders of Judge
Santos dated May 29, 1996 denying the motion for reconsideration and the denial of the notice of appeal dated
September 6, 1996 had also become final and executory.
The denial of petitioner Valente's Motion for Reconsideration prompted the filing of this present petition for
certiorari.
Petitioner Valente posits that the appellate court committed grave abuse of discretion in recalling and
setting aside the Orders of Judge Estrella and reinstating those of Judge Santos because:
1. The CA ruled that the Orders dated May 29, 1996 and September 6, 1996 issued by Judge Santos
were final and executory, and yet the latter did not allow an appeal to be taken therefrom
ratiocinating that the questioned orders were interlocutory, and therefore, not appealable; and
2. The CA ignored and violated the Supreme Court's ruling in Heirs of Yaptinchay v. Del Rosario 28
which held that a declaration of heirship must be made in a special proceeding and not in a civil
action.
We find the petition bereft of merit.
At the outset, we note that petitioner Valente incorrectly filed a petition for certiorari to appeal the CA
decision. Petitioner should have filed a petition for review on certiorari under Rule 45 of the Rules of Court.
Simply imputing in a petition that the decision sought to be reviewed is tainted with grave abuse of
discretion does not magically transform a petition into a special civil action for certiorari. The CA decision
disposed of the merits of a special civil action, an original petition, filed thereat by herein respondents. That
disposition is a final and executory order, appealable to, and may be questioned before, this Court by
persons aggrieved thereby, such as petitioner Valente, via Rule 45.
On this score alone, the petition should have been dismissed outright. However, we have disregarded this
procedural flaw and now resolve this case based on the merits or lack thereof.

Petitioner asseverates that the assailed CA ruling "is unfair and it amounts to a trickery to prevent an appeal
against a final order by claiming that the appealed order is merely interlocutory and later maintain that the
same order has become final after declaring it to be interlocutory."
We reject petitioner's paltry contention. Petitioner apparently does not comprehend the distinction between
an interlocutory order which is final and executory, and a final order which disposes of the controversy or
case; much less, understand the available remedies therefrom.
We have defined an interlocutory order as referring to something between the commencement and the end
of the suit which decides some point or matter but it is not the final decision on the whole controversy.29 It
does not terminate or finally dismiss or finally dispose of the case, but leaves something to be done by the
court before the case is finally decided on the merits.30 Upon the other hand, a final order is one which
leaves to the court nothing more to do to resolve the case. 31
On more than one occasion, we laid down the test to ascertain whether an order is interlocutory or final i.e.,
"Does it leave something to be done in the trial court with respect to the merits of the case?" If it does, it is
interlocutory; if it does not, it is final. The key test to what is interlocutory is when there is something more
to be done on the merits of the case.32 The Orders dated May 29, 1996 and September 6, 1996 issued by
Judge Santos are interlocutory, and therefore, not appealable, as they leave something more to be done on
the merits of the case. In fact, in paragraph (d) of Judge Santos' Order dated May 29, 1996, herein
respondents were directed to submit evidence showing settlement of the estate of the deceased Marcelo Sr.
Contrary to petitioner Valente's stance, there is no trickery or chicanery in the CA's distinction between an
interlocutory and a final order. Indeed, as ruled by the CA, the RTC Order denying petitioner Valente's
Notice of Appeal attained finality when he failed to file a petition for certiorari under Rule 65 of the Rules of
Court.
We cannot overemphasize the rule that the correct identification of the nature of an assailed order
determines the remedies available to an aggrieved party. The old Rules of Court in Section 2, Rule 41 reads,
thus:
SEC. 2. Judgments or orders subject to appeal.-Only final judgments or orders shall be subject to appeal.
No interlocutory or incidental judgment or order shall stay the progress of an action, nor shall it be
the subject of appeal until final judgment or order is rendered for one party or the other.
xxxx
With the advent of the 1997 Rules of Civil Procedure, Section 1, Rule 41 now provides for the appropriate
remedy to be taken from an interlocutory order, thus:
SECTION 1. Subject of appeal. - An appeal may be taken from a judgment or final order that
completely disposes of the case, or of a particular matter therein when declared by these Rules to be
appealable.
No appeal may be taken from:
xxx
(c) An interlocutory order;
xxx
In all the above instances where the judgment or final order is not appealable, the aggrieved party
may file an appropriate special civil action under Rule 65.
Clearly, the denial of therein defendants' (including petitioner Valente's) appeal from the Orders dated May
29, 1996 and September 6, 1996 was in order. Thus, the CA decision affirming the RTC's denial was correct.
Further, on this crucial distinction as applied to this case, petitioner Valente filed a petition for certiorari
from the CA decision in CA-G.R. SP No. 58090, which is not an interlocutory order. It is a final order which
completely disposed of the merits of the case with nothing more left to be done therein. The correct and
available remedy available to petitioner Valente was, as previously discussed, a petition for review on
certiorari under Rule 45 of the Rules of Court.
In fine, petitioner Valente erroneously sought relief through reversed remedies. He tried to appeal the
interlocutory orders of the RTC which are unappealable. Thus, the RTC properly denied his Notice of
Appeal, and the CA correctly upheld the RTC. He should have filed a petition for certiorari; under Rule 65.
On the other hand, from the final order of the CA, he comes before this Court on a petition for certiorari
under Rule 65, when the proper remedy is an appeal by certiorari under Rule 45.
In the recent case of Jan-Dec Construction Corporation v. Court of Appeals33 we ruled in this wise:

As a rule, the remedy from a judgment or final order of the CA is appeal via petition for review
under Rule 45 of the Rules.
Under Rule 45, decisions, final orders or resolutions of the CA in any case, i.e., regardless of the
nature of the action or proceedings involved, may be appealed to the Court by filing a petition for
review, which would be but a continuation of the appellate process over the original case. It seeks to
correct errors of judgment committed by the court, tribunal, or officer. In contrast, a special civil
action for certiorari under Rule 65 is an independent action based on the specific grounds therein
provided and proper only if there is no appeal or any plain, speedy and adequate remedy in the
ordinary course of law. It is an extraordinary process for the correction of errors of jurisdiction and
cannot be availed of as a substitute for the lost remedy of an ordinary appeal.
Independently of this procedural infirmity, even on the merits of the case, the petition does not fare
otherwise. It must be dismissed for lack of merit.
Petitioner Valente insists that, following our ruling in Heirs of Yaptinchay v. Del Rosario,34 herein respondents
must first be declared heirs of Marcelo Sr. before they can file an action to annul the judicial sale of what is,
undisputedly, conjugal property of Teofista and Marcelo Sr.
We disagree. Our ruling in Heirs of Yaptinchay is not applicable.
Herein respondents' status as legitimate children of Marcelo Sr. and Teofista and thus, Marcelo Sr.'s heirs
has been firmly established, and confirmed by this Court in Suarez v. Court of Appeals.35 True, this Court is
not a trier of facts,36 but as the final arbiter of disputes,37 we found and so ruled that herein respondents are
children, and heirs of their deceased father, Marcelo Sr. This having been settled, it should no longer have
been a litigated issue when we ordered a remand to the lower court. In short, petitioner Valente's, Violeta's,
Virginia's, and Maria Concepcion's representation in the RTC that our ruling in Suarez required herein
respondents to present evidence of their affiliation with the deceased, Marcelo Sr., is wrong.
As was set forth in the dispositive portion of Suarez, "Civil Case No. 51203 is reinstated only to determine
that portion which belongs to [herein respondents] and to annul the sale with regard to said portion." There
is clearly no intimation in our decision for the RTC to have to determine an already settled issue i.e., herein
respondents' status as heirs of Marcelo Sr.
Moreover, petitioner Valente cannot assail, directly or indirectly, the status of herein respondents as
legitimate children of Marcelo Sr. and Teofista, and likewise demand that herein respondents first prove
their filiation to Marcelo Sr. The following records bear out Marcelo, Sr.'s and Teofista's paternity of herein
respondents, and the latter's status as legitimate children:
1. The CA decision in CA-G.R. SP Nos. 10646 to 10649 where Teofista, along with herein respondents,
questioned the RTC, Branch 151's Orders dated October 10, 1984 and October 14, 1986. Although the CA
ruled against Teofista and herein respondents, it explicitly recognized the latter's status as legitimate
children of Teofista and Marcelo Sr.; and38
2. The CA decision in CA-G.R. SP No. 20320 which incorrectly ruled that herein respondents were, as
children of Teofista, merely successors-in-interest of the latter to the property and by virtue thereof, bound
by the judgment in Civil Case Nos. 21376 to 21379 consistent with the doctrine of res judicata.39 We
subsequently reversed this ruling on the wrong application of res judicata in the conclusive case of Suarez.
We retained and affirmed, however, the CA's factual finding of herein respondents' status as heirs of
Marcelo Sr. We categorically held therein that "the proprietary interest of [herein respondents] in the levied
and auctioned [properties] is different from and adverse to that of [Teofista]. [Herein respondents] became
co-owners of the property not because of [Teofista] but through their own right as children of their deceased
father [, Marcelo Sr.]."
Clearly, herein respondents' long possessed status of legitimate children of Marcelo Sr. and Teofista cannot
be indirectly or directly attacked by petitioner Valente in an action to annul a judicial sale.
Articles 262,40 263,41 265 and 26642 of the Civil Code, the applicable law at the time of Marcelo's death,
support the foregoing conclusion, to wit:
Art. 262. The heirs of the husband may impugn the legitimacy of the child only in the following
cases:
(1) If the husband should die before the expiration of the period fixed for bringing his action;
(2) If the husband should die after the filing of the complaint, without having desisted from
the same;
(3) If the child was born after the death of the husband.

Art. 263. The action to impugn the legitimacy of the child shall be brought within one year from the
recording of birth in the Civil Register, if the husband should be in the same place, or in a proper
case, any of his heirs.
If he or his heirs are absent, the period shall be eighteen months if they should reside in the
Philippines; and two years if abroad. If the birth of the child has been concealed, the term shall be
counted from the discovery of the fraud.
Art. 265. The filiation of legitimate children is proved by the record of birth appearing in the Civil
Register, or by an authentic document or a final judgment.
Art. 266. In the absence of the titles indicated in the preceding article, the filiation shall be proved by
the continuous possession of status of a legitimate child.
In Heirs of Yaptinchay, the complaint for annulment and/or declaration of nullity of certain TCT's was
dismissed for failure of the petitioners to demonstrate "any proof or even a semblance of it" that they had
been declared the legal heirs of the deceased couple, the spouses Yaptinchay. In stark contrast, the records
of this case reveal a document, an Extrajudicial Settlement of Marcelo Sr.'s estate, which explicitly
recognizes herein respondents as Marcelo Sr.'s legitimate children and heirs. The same document settles and
partitions the estate of Marcelo Sr. specifying Teofista's paraphernal properties, and separates the properties
she owns in common with her children, herein respondents. Plainly, there is no need to re-declare herein
respondents as heirs of Marcelo Sr., and prolong this case interminably.
Petitioner Valente, along with Violeta, Virginia and Maria Concepcion, became owners of the subject
properties only by virtue of an execution sale to recover Teofista's judgment obligation. This judgment
obligation is solely Teofista's, and payment therefor cannot be made through an execution sale of properties
not absolutely owned by her. These properties were evidently conjugal properties and were, in fact, even
titled in the name of Marcelo, Sr. married to Teofista. Thus, upon Marcelo Sr.'s death, by virtue of
compulsory succession, Marcelo Sr.'s share in the conjugal partnership was transmitted by operation of law
to his compulsory heirs.
Compulsory succession is a distinct kind of succession, albeit not categorized as such in Article 77843 of the
Civil Code. It reserves a portion of the net estate of the decedent in favor of certain heirs, or group of heirs,
or combination of heirs, prevailing over all kinds of succession.44 The portion that is so reserved is the
legitime. Article 886 of the Civil Code defines legitime as "that part of the testator's property which he
cannot dispose of because the law has reserved it for certain heirs who are, therefore, called compulsory
heirs." Herein respondents are primary compulsory heirs,45 excluding secondary compulsory heirs,46 and
preferred over concurring compulsory heirs in the distribution of the decedent's estate.47
Even without delving into the Extrajudicial Settlement of Marcelo Sr.'s estate in 1957, it must be stressed
that herein respondents' rights to the succession vested from the moment of their father's death. 48 Herein
respondents' ownership of the subject properties is no longer inchoate; it became absolute upon Marcelo's
death, although their respective shares therein remained pro indiviso. Ineluctably, at the time the subject
properties were sold on execution sale to answer for Teofista's judgment obligation, the inclusion of herein
respondents' share therein was null and void.
In fine, Teofista's ownership over the subject properties is not absolute. Significantly, petitioner Valente
does not even attempt to dispute the conjugal nature of the subject properties. Since Teofista owns only a
portion of the subject properties, only that portion could have been, and was actually, levied upon and sold
on auction by the provincial sheriff of Rizal. Thus, a separate declaration of heirship by herein respondents
is not necessary to annul the judicial sale of their share in the subject properties.
We note the recent case of Portugal v. Portugal-Beltran,49 where we scrutinized our rulings in Heirs of
Yaptinchay and the cited cases of Litam v. Rivera50 and Solivio v. Court of Appeals,51 and Guilas v. CFI Judge of
Pampanga52 cited in Solivio. We ruled thus:
The common doctrine in Litam, Solivio and Guilas in which the adverse parties are putative heirs to the
estate of a decedent or parties to the special proceedings for its settlement is that if the special proceedings
are pending, or if there are no special proceedings filed but there is, under the circumstances of the
case, a need to file one, then the determination of, among other issues, heirship should be raised and
settled in said special proceedings. Where special proceedings had been instituted but had been
finally closed and terminated, however, or if a putative heirs has lost the right to have himself
declared in the special proceedings as co-heir and he can no longer ask for its re-opening, then an
ordinary civil action can be filed for his declaration as heir in order to bring about the annulment of
the partition or distribution or adjudication of a property or properties belonging to the estate of the
deceased.

In the case at bar, respondent, believing rightly or wrongly that she was the sole heir to Portugal's
estate, executed on February 15, 1988 the questioned Affidavit of Adjudication under the second
sentence of Rule 74, Section of the Revised Rules of Court. Said rule is an exception to the general
rule that when a person dies leaving property, it should be judicially administered and the
competent court should appoint a qualified administrator, in the order established in Sec. 6, Rule 78
in case the deceased left no will, or in case he did, he failed to name an executor therein.
xxx
It appearing, however, that in the present case the only property of the intestate estate of Portugal is
the Caloocan parcel of land, to still subject it, under the circumstances of the case, to a special
proceeding which could be long, hence, not expeditious, just to establish the status of petitioners as
heirs is not only impractical; it is burdensome to the estate with the costs and expenses of an
administration proceedings. And it is superfluous in light of the fact that the parties to the civil casesubject of the present case, could and had already in fact presented evidence before the trial court
which assumed jurisdiction over the case upon the issues it defined during pre-trial.
In fine, under the circumstances of the present case, there being no compelling reason to still
subject Portugal's estate to administration proceedings since a determination of petitioners' status
as heirs could be achieved in the civil case filed by petitioners xxx.53
All told, under the circumstances, in addition to the already settled status of herein respondents as heirs of
Marcelo Sr., there is no need to dismiss Civil Case No. 51203 and require herein respondents to institute a
separate special proceeding for a declaration of their heirship.
WHEREFORE, premises considered, the petition is DENIED. The Decision of the Court of Appeals in CAG.R. SP No. 58090 is AFFIRMED. The Orders dated May 29, 1996 and September 6, 1996 issued by Judge
Santos are REINSTATED. Costs against the petitioner. SO ORDERED.
DEVELOPMENT BANK OF THE PHILIPPINES
V.

ELLA GAGARANI, ISAGANI, ADRIAN, NATHANIEL, NIEVA, JONATHAN, DIONESIO,

FLORENCE and JEREMIAS, all surnamed ASOK, Respondents.

LEONARDO-DE CASTRO, JJ.
Promulgated: September 17, 2008
RESOLUTION
CORONA, J.:
This is a petition for review on certiorari1 of the December 14, 2005 decision2 and March 28, 2006 resolution3
of the Court of Appeals (CA) in CA-G.R. CV No. 64259.
The spouses Dionesio and Matea S. Asok owned several parcels of land. Upon their death on September 14,
1973 and February 22, 1982, respectively, their eleven children inherited the properties. One of the lands
inherited was a lot covered by Original Certificate of Title (OCT) No. P-4272, a free patent issued on July 19,
1967, located at Pagawan, Manticao, Misamis Oriental with an area of 39,552 sq. m. 4
Pursuant to the extrajudicial settlement of the estate with quitclaim executed by the spouses children, the
subject property was inherited by Denison Asok (Asok). As a result, OCT No. P-4272 was cancelled and
Transfer Certificate of Title (TCT) No. T-9626 was issued and registered in his name on November 17, 1987. 5
On August 31, 1989, Asok and his wife, respondent Ella Gagarani Asok, borrowed P100,000 from petitioner
Development Bank of the Philippines, a government financial institution created and operating under EO
81,6 as amended by RA 8523. They mortgaged the subject lot as collateral to guarantee payment of the loan.
On due date, however, they failed to pay the loan and the mortgage was extrajudicially foreclosed pursuant
to Act 3135.7 Petitioner emerged as the highest bidder with a bid of P163,297.8
On November 28, 1991, a certificate of sale was issued in favor of petitioner. This was registered on
December 24, 1992.9 On March 25, 1998, petitioners ownership over the property was consolidated and TCT
No. T-27172 was issued in its name.10
Meanwhile, Asok died on October 24, 1993 and was succeeded by his surviving spouse and children
(respondents).11
On May 15, 1998, respondents filed a complaint for repurchase against petitioner in the Regional Trial Court
(RTC) of Initao, Misamis Oriental, Branch 44, docketed as Civil Case No. 98-68. On July 3, 1998, they filed an
amended complaint on learning that TCT No. T-9626 had been cancelled by TCT No. T-27172 issued in the

name of petitioner. They invoked their right to repurchase the property under Sec. 119 of CA 141, as
amended:12
Sec. 119. Every conveyance of land acquired under the free patent or homestead provisions, when proper,
shall be subject to repurchase by the applicant, his widow, or legal heirs, within a period of five years from
date of the conveyance.
In a decision dated January 7, 1999, the RTC dismissed the complaint. Reconsideration was denied on
February 3, 1999.13 It ruled that the one-year period for redemption should be reckoned from the date of
sale, i.e., November 28, 1991. Then the five-year period provided under Sec. 119 of CA 141 should be
counted from the expiration of the redemption period, i.e., November 28, 1992. Therefore, respondents had
until November 28, 1997 to exercise their right to repurchase. However, the complaint was filed on May 15,
1998 which was beyond the prescribed period.14
Aggrieved, respondents appealed to the CA. In a decision dated December 14, 2005, the CA reversed and
set aside the RTC decision. Reconsideration was denied in a resolution dated March 28, 2006. It held that the
period of redemption started from the date of registration of the certificate of sale, i.e., December 24, 1992,
and not from the date of sale. Thus, respondents had until December 24, 1998 to repurchase the property
and the complaint was seasonably filed.15
Hence this petition.
Petitioner raises the following issues: (1) whether Sec. 119 of CA 141 is applicable in this case; (2) whether
respondents are the legal heirs of the patentees and (3) whether the right to repurchase has already
prescribed.
The petition lacks merit.
Petitioner contends that respondents cannot claim the right under Sec. 119 which covers homesteads and
free patents because the free patent issued to Asoks parents had already been cancelled and a new TCT had
in fact been issued to him. Thus, the property mortgaged to it was no longer covered by a free patent but by
a TCT.16
This contention deserves scant consideration.
The plain intent of Sec. 119 is to give the homesteader or patentee every chance to preserve and keep in the
family the land that the State has gratuitously given him as a reward for his labor in cleaning, developing
and cultivating it.17 Hence, the fact that the land had been inherited by the patentees son (and a new title in
his name issued) does not bring it outside the purview of Sec. 119. In fact, the policy behind the law is
fulfilled because the land remains in the family of the patentee. As we explained in Ferrer v. Mangente:18
The applicant for a homestead is to be given all the inducement that the law offers and is entitled to its full
protection. Its blessings, however, do not stop with him. This is particularly so in this case as the appellee is
the son of the deceased. There is no question then as to his status of being a legal heir. The policy of the law
is not difficult to understand. The incentive for a pioneer to venture into developing virgin land becomes
more attractive if he is assured that his effort will not go for naught should perchance his life be cut short.
This is merely a recognition of how closely bound parents and children are in a Filipino family. Logic, the
sense of fitness and of right, as well as pragmatic considerations thus call for continued adherence to the
policy that not the individual applicant alone but those so closely related to him as are entitled to legal
succession may take full advantage of the benefits the law confers. 19
Having ruled that Sec. 119 is applicable to this case, we now go to the next issue: are respondents the "legal
heirs" contemplated in the provision?
Petitioner argues that respondents are not the legal heirs of the patentees because respondents are merely
their daughter-in-law and grandchildren.
We disagree. In line with the rationale behind Sec. 119, we reject a restricted definition of legal heirs. It is
used in a broad sense and the law makes no distinctions.20 In Madarcos v. de la Merced,21 we held that:
The term "legal heirs" is used in Section 119 in a generic sense. It is broad enough to cover any person who is
called to the succession either by provision of a will or by operation of law. Thus, legal heirs include both
testate and intestate heirs depending upon whether succession is by the will of the testator or by law. Legal
heirs are not necessarily compulsory heirs but they may be so if the law reserves a legitime for them.
xxx xxx xxx
Verily, petitioners are legal heirs. Having been decreed under the rules on intestacy as entitled to succeed to
the estate of the Catain spouses due to the absence of compulsory heirs, they now step into the shoes of the

decedents. They should be considered as among the legal heirs contemplated by Section 119 as entitled to
redeem the homestead.
The above interpretation of "legal heirs" as contra-distinguished from the restrictive construction given it by
the lower court is more in keeping with the salutary purpose behind the enactment of Section 119 and the
jurisprudence laid down on the matter. Indeed, it is not far-fetched to arrive at a more liberal conclusion if
the section is analyzed in accordance with its purpose xxxx22
Respondents inherited the property from Asok, their husband and father, who in turn inherited it from his
parents. Respondent Ella Gagarani Asok, as daughter-in-law of the patentees, can be considered as among
the legal heirs who can repurchase the land in accordance with Salenillas v. CA.23 In that case, we allowed
the daughter and son-in-law of the patentees to repurchase the property because this would be "more in
keeping with the spirit of the law. We have time and again said that between two statutory interpretations,
that which better serves the purpose of the law should prevail."24 Furthermore, the law must be liberally
construed in order to carry out its purpose. 25
Finally, petitioner asserts that even if respondents could be considered as being entitled to the right under
Sec. 119, this had already prescribed because the period should be counted from the date of conveyance
which means the date of sale and not the date of registration of the certificate of sale.
This argument lacks merit.
This is far from a novel issue. It was already resolved in Rural Bank of Davao City, Inc. v. CA:26
Thus, the rules on redemption in the case of an extrajudicial foreclosure of land acquired under free patent
or homestead statutes may be summarized as follows: xxx If the land is mortgaged to parties other than
rural banks, the mortgagor may redeem the property within one (1) year from the registration of the
certificate of sale pursuant to Act No. 3135. If he fails to do so, he or his heirs may repurchase the property
within five (5) years from the expiration of the redemption period also pursuant to Section 119 of the Public
Land Act.27
There is no dispute that in extrajudicial foreclosures under Act 3135, the debtor or his or her successors-ininterest may redeem the property within one year. This redemption period should be reckoned from the
date of registration of the certificate of sale.28 The five-year period fixed in Sec. 119 begins to run from the
expiration of the one-year redemption period.29 Here, the certificate of sale was registered on December 24,
1992 and the one-year redemption period expired on December 24, 1993. Reckoned from that day,
respondents had a five-year period, or until December 24, 1998, to exercise their right to repurchase under
Sec. 119 of CA 141. Consequently, the CA was correct in holding that the complaint filed on May 15, 1998
was on time.
WHEREFORE, the petition is hereby DENIED. Petitioner Development Bank of the Philippines is ordered
to execute a deed of reconveyance in favor of respondents upon payment by the latter of the redemption
price. No costs. SO ORDERED.
G.R. No. 145545

June 30, 2008

PAZ SAMANIEGO-CELADA, petitioner,

vs.
LUCIA D. ABENA, respondent.
DECISION
QUISUMBING, J.:
This is a petition for review under Rule 45 of the 1997 Rules of Civil Procedure seeking to reverse the
Decision1 dated October 13, 2000 of the Court of Appeals in CA-G.R. CV No. 41756, which affirmed the
Decision2 dated March 2, 1993 of the Regional Trial Court (RTC), Branch 66, Makati City. The RTC had
declared the last will and testament of Margarita S. Mayores probated and designated respondent Lucia D.
Abena as the executor of her will. It also ordered the issuance of letters testamentary in favor of respondent.
The facts are as follows:
Petitioner Paz Samaniego-Celada was the first cousin of decedent Margarita S. Mayores (Margarita) while
respondent was the decedents lifelong companion since 1929.
On April 27, 1987, Margarita died single and without any ascending nor descending heirs as her parents,
grandparents and siblings predeceased her. She was survived by her first cousins Catalina SamaniegoBombay, Manuelita Samaniego Sajonia, Feliza Samaniego, and petitioner.

Before her death, Margarita executed a Last Will and Testament3 on February 2, 1987 where she bequeathed
one-half of her undivided share of a real property located at Singalong Manila, consisting of 209.8 square
meters, and covered by Transfer Certificate of Title (TCT) No. 1343 to respondent, Norma A. Pahingalo, and
Florentino M. Abena in equal shares or one-third portion each. She likewise bequeathed one-half of her
undivided share of a real property located at San Antonio Village, Makati, consisting of 225 square meters,
and covered by TCT No. 68920 to respondent, Isabelo M. Abena, and Amanda M. Abena in equal shares or
one-third portion each. Margarita also left all her personal properties to respondent whom she likewise
designated as sole executor of her will.
On August 11, 1987, petitioner filed a petition for letters of administration of the estate of Margarita before
the RTC of Makati. The case was docketed as SP Proc. No. M-1531.
On October 27, 1987, respondent filed a petition for probate of the will of Margarita before the RTC of
Makati. The case was docketed as SP Proc. No. M-1607 and consolidated with SP Proc. No. M-1531.
On March 2, 1993, the RTC rendered a decision declaring the last will and testament of Margarita probated
and respondent as the executor of the will. The dispositive portion of the decision states:
In view of the foregoing, judgment is hereby rendered:
1) declaring the will as probated;
2) declaring Lucia Abena as the executor of the will who will serve as such without a bond as stated
in paragraph VI of the probated will;
3) ordering the issuance of letters testamentary in favor of Lucia Abena.
So ordered.4
Petitioner appealed the RTC decision to the Court of Appeals. But the Court of Appeals, in a decision dated
October 13, 2000, affirmed in toto the RTC ruling. The dispositive portion of the Court of Appeals decision
states:
WHEREFORE, foregoing premises considered, the appeal having no merit in fact and in law, is
hereby ORDERED DISMISSED and the appealed Decision of the trial court AFFIRMED IN TOTO,
with cost to oppositors-appellants.
SO ORDERED.5
Hence, the instant petition citing the following issues:
I.
WHETHER OR NOT THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN NOT
INVALIDATING THE WILL SINCE IT DID NOT CONFORM TO THE FORMALITIES REQUIRED
BY LAW;
II.
WHETHER OR NOT THE COURT OF APPEALS COMMITTED ERROR IN NOT INVALIDATING
THE WILL BECAUSE IT WAS PROCURED THROUGH UNDUE INFLUENCE AND PRESSURE[;]
AND
III.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN NOT DECLARING
PETITIONER, HER SIBLINGS AND COUSIN AS THE LEGAL HEIRS OF MARGARITA S.
MAYORES AND IN NOT ISSUING LETTERS OF ADMINISTRATION TO HER.6
Briefly stated, the issues are (1) whether the Court of Appeals erred in not declaring the will invalid for
failure to comply with the formalities required by law, (2) whether said court erred in not declaring the will
invalid because it was procured through undue influence and pressure, and (3) whether it erred in not
declaring petitioner and her siblings as the legal heirs of Margarita, and in not issuing letters of
administration to petitioner.
Petitioner, in her Memorandum,7 argues that Margaritas will failed to comply with the formalities required
under Article 8058 of the Civil Code because the will was not signed by the testator in the presence of the
instrumental witnesses and in the presence of one another. She also argues that the signatures of the testator
on pages A, B, and C of the will are not the same or similar, indicating that they were not signed on the
same day. She further argues that the will was procured through undue influence and pressure because at
the time of execution of the will, Margarita was weak, sickly, jobless and entirely dependent upon
respondent and her nephews for support, and these alleged handicaps allegedly affected her freedom and
willpower to decide on her own. Petitioner thus concludes that Margaritas total dependence on respondent

and her nephews compelled her to sign the will. Petitioner likewise argues that the Court of Appeals should
have declared her and her siblings as the legal heirs of Margarita since they are her only living collateral
relatives in accordance with Articles 10099 and 101010 of the Civil Code.
Respondent, for her part, argues in her Memorandum11 that the petition for review raises questions of fact,
not of law and as a rule, findings of fact of the Court of Appeals are final and conclusive and cannot be
reviewed on appeal to the Supreme Court. She also points out that although the Court of Appeals at the
outset opined there was no compelling reason to review the petition, the Court of Appeals proceeded to
tackle the assigned errors and rule that the will was validly executed, sustaining the findings of the trial
court that the formalities required by law were duly complied with. The Court of Appeals also concurred
with the findings of the trial court that the testator, Margarita, was of sound mind when she executed the
will.
After careful consideration of the parties contentions, we rule in favor of respondent.
We find that the issues raised by petitioner concern pure questions of fact, which may not be the subject of a
petition for review on certiorari under Rule 45 of the Rules of Civil Procedure.
The issues that petitioner is raising now i.e., whether or not the will was signed by the testator in the
presence of the witnesses and of one another, whether or not the signatures of the witnesses on the pages of
the will were signed on the same day, and whether or not undue influence was exerted upon the testator
which compelled her to sign the will, are all questions of fact.
This Court does not resolve questions of fact in a petition for review under Rule 45 of the 1997 Rules of Civil
Procedure. Section 112 of Rule 45 limits this Courts review to questions of law only.
Well-settled is the rule that the Supreme Court is not a trier of facts. When supported by substantial
evidence, the findings of fact of the Court of Appeals are conclusive and binding on the parties and are not
reviewable by this Court, unless the case falls under any of the following recognized exceptions:
(1) When the conclusion is a finding grounded entirely on speculation, surmises and conjectures;
(2) When the inference made is manifestly mistaken, absurd or impossible;
(3) Where there is a grave abuse of discretion;
(4) When the judgment is based on a misapprehension of facts;
(5) When the findings of fact are conflicting;
(6) When the Court of Appeals, in making its findings, went beyond the issues of the case and the
same is contrary to the admissions of both appellant and appellee;
(7) When the findings are contrary to those of the trial court;
(8) When the findings of fact are conclusions without citation of specific evidence on which they are
based;
(9) When the facts set forth in the petition as well as in the petitioners main and reply briefs are not
disputed by the respondents; and
(10) When the findings of fact of the Court of Appeals are premised on the supposed absence of
evidence and contradicted by the evidence on record.13
We find that this case does not involve any of the abovementioned exceptions.
Nonetheless, a review of the findings of the RTC as upheld by the Court of Appeals, reveal that petitioners
arguments lack basis. The RTC correctly held:
With [regard] to the contention of the oppositors [Paz Samaniego-Celada, et al.] that the testator
[Margarita Mayores] was not mentally capable of making a will at the time of the execution thereof,
the same is without merit. The oppositors failed to establish, by preponderance of evidence, said
allegation and contradict the presumption that the testator was of sound mind (See Article 800 of the
Civil Code). In fact, witness for the oppositors, Dr. Ramon Lamberte, who, in some occasions,
attended to the testator months before her death, testified that Margarita Mayores could engage in a
normal conversation and he even stated that the illness of the testator does not warrant
hospitalization. Not one of the oppositors witnesses has mentioned any instance that they
observed act/s of the testator during her lifetime that could be construed as a manifestation of
mental incapacity. The testator may be admitted to be physically weak but it does not necessarily
follow that she was not of sound mind. [The] testimonies of contestant witnesses are pure
aforethought.

Anent the contestants submission that the will is fatally defective for the reason that its attestation
clause states that the will is composed of three (3) pages while in truth and in fact, the will consists of
two (2) pages only because the attestation is not a part of the notarial will, the same is not accurate.
While it is true that the attestation clause is not a part of the will, the court, after examining the
totality of the will, is of the considered opinion that error in the number of pages of the will as stated
in the attestation clause is not material to invalidate the subject will. It must be noted that the subject
instrument is consecutively lettered with pages A, B, and C which is a sufficient safeguard from the
possibility of an omission of some of the pages. The error must have been brought about by the
honest belief that the will is the whole instrument consisting of three (3) pages inclusive of the
attestation clause and the acknowledgement. The position of the court is in consonance with the
"doctrine of liberal interpretation" enunciated in Article 809 of the Civil Code which reads:
"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."
The court also rejects the contention of the oppositors that the signatures of the testator were affixed
on different occasions based on their observation that the signature on the first page is allegedly
different in size, texture and appearance as compared with the signatures in the succeeding pages.
After examination of the signatures, the court does not share the same observation as the oppositors.
The picture (Exhibit "H-3") shows that the testator was affixing her signature in the presence of the
instrumental witnesses and the notary. There is no evidence to show that the first signature was
procured earlier than February 2, 1987.
Finally, the court finds that no pressure nor undue influence was exerted on the testator to execute
the subject will. In fact, the picture reveals that the testator was in a good mood and smiling with the
other witnesses while executing the subject will (See Exhibit "H").
In fine, the court finds that the testator was mentally capable of making the will at the time of its
execution, that the notarial will presented to the court is the same notarial will that was executed and
that all the formal requirements (See Article 805 of the Civil Code) in the execution of a will have
been substantially complied with in the subject notarial will.14 (Emphasis supplied.)
Thus, we find no reason to disturb the abovementioned findings of the RTC. Since, petitioner and her
siblings are not compulsory heirs of the decedent under Article 88715 of the Civil Code and as the decedent
validly disposed of her properties in a will duly executed and probated, petitioner has no legal right to
claim any part of the decedents estate.
WHEREFORE, the petition is DENIED. The assailed Decision dated October 13, 2000 of the Court of
Appeals in CA-G.R. CV No. 41756 is AFFIRMED.
Costs against petitioner.
SO ORDERED.
A.C. No. 5281

February 12, 2008

MANUEL L. LEE, petitioner,

vs.
ATTY. REGINO B. TAMBAGO, respondent.
RESOLUTION
CORONA, J.:
In a letter-complaint dated April 10, 2000, complainant Manuel L. Lee charged respondent Atty. Regino B.
Tambago with violation of the Notarial Law and the ethics of the legal profession for notarizing a spurious
last will and testament.
In his complaint, complainant averred that his father, the decedent Vicente Lee, Sr., never executed the
contested will. Furthermore, the spurious will contained the forged signatures of Cayetano Noynay and
Loreto Grajo, the purported witnesses to its execution.
In the said will, the decedent supposedly bequeathed his entire estate to his wife Lim Hock Lee, save for a
parcel of land which he devised to Vicente Lee, Jr. and Elena Lee, half-siblings of complainant.
The will was purportedly executed and acknowledged before respondent on June 30, 1965.1 Complainant,
however, pointed out that the residence certificate2 of the testator noted in the acknowledgment of the will
was dated January 5, 1962.3 Furthermore, the signature of the testator was not the same as his signature as
donor in a deed of donation4 (containing his purported genuine signature). Complainant averred that the

signatures of his deceased father in the will and in the deed of donation were "in any way (sic) entirely and
diametrically opposed from (sic) one another in all angle[s]."5
Complainant also questioned the absence of notation of the residence certificates of the purported witnesses
Noynay and Grajo. He alleged that their signatures had likewise been forged and merely copied from their
respective voters affidavits.
Complainant further asserted that no copy of such purported will was on file in the archives division of the
Records Management and Archives Office of the National Commission for Culture and the Arts (NCCA). In
this connection, the certification of the chief of the archives division dated September 19, 1999 stated:
Doc. 14, Page No. 4, Book No. 1, Series of 1965 refers to an AFFIDAVIT executed by BARTOLOME
RAMIREZ on June 30, 1965 and is available in this Office[s] files.6
Respondent in his comment dated July 6, 2001 claimed that the complaint against him contained false
allegations: (1) that complainant was a son of the decedent Vicente Lee, Sr. and (2) that the will in question
was fake and spurious. He alleged that complainant was "not a legitimate son of Vicente Lee, Sr. and the last
will and testament was validly executed and actually notarized by respondent per affidavit 7 of Gloria
Nebato, common-law wife of Vicente Lee, Sr. and corroborated by the joint affidavit8 of the children of
Vicente Lee, Sr., namely Elena N. Lee and Vicente N. Lee, Jr. xxx." 9
Respondent further stated that the complaint was filed simply to harass him because the criminal case filed
by complainant against him in the Office of the Ombudsman "did not prosper."
Respondent did not dispute complainants contention that no copy of the will was on file in the archives
division of the NCCA. He claimed that no copy of the contested will could be found there because none was
filed.
Lastly, respondent pointed out that complainant had no valid cause of action against him as he
(complainant) did not first file an action for the declaration of nullity of the will and demand his share in the
inheritance.
In a resolution dated October 17, 2001, the Court referred the case to the Integrated Bar of the Philippines
(IBP) for investigation, report and recommendation. 10
In his report, the investigating commissioner found respondent guilty of violation of pertinent provisions of
the old Notarial Law as found in the Revised Administrative Code. The violation constituted an
infringement of legal ethics, particularly Canon 111 and Rule 1.0112 of the Code of Professional
Responsibility (CPR).13 Thus, the investigating commissioner of the IBP Commission on Bar Discipline
recommended the suspension of respondent for a period of three months.
The IBP Board of Governors, in its Resolution No. XVII-2006-285 dated May 26, 2006, resolved:
[T]o ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with modification, the
Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein
made part of this Resolution as Annex "A"; and, finding the recommendation fully supported by the
evidence on record and the applicable laws and rules, and considering Respondents failure to
comply with the laws in the discharge of his function as a notary public, Atty. Regino B. Tambago is
hereby suspended from the practice of law for one year and Respondents notarial commission is
Revoked and Disqualified from reappointment as Notary Public for two (2) years.14
We affirm with modification.
A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain
degree the disposition of his estate, to take effect after his death.15 A will may either be notarial or
holographic.
The law provides for certain formalities that must be followed in the execution of wills. The object of
solemnities surrounding the execution of wills is to close the door on bad faith and fraud, to avoid
substitution of wills and testaments and to guarantee their truth and authenticity. 16
A notarial will, as the contested will in this case, is required by law to be subscribed at the end thereof by
the testator himself. In addition, it should be attested and subscribed by three or more credible witnesses in
the presence of the testator and of one another. 17
The will in question was attested by only two witnesses, Noynay and Grajo. On this circumstance alone, the
will must be considered void.18 This is in consonance with the rule that acts executed against the provisions
of mandatory or prohibitory laws shall be void, except when the law itself authorizes their validity.

The Civil Code likewise requires that a will must be acknowledged before a notary public by the testator
and the witnesses.19 The importance of this requirement is highlighted by the fact that it was segregated
from the other requirements under Article 805 and embodied in a distinct and separate provision. 20
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. It involves an extra step undertaken whereby the signatory
actually declares to the notary public that the same is his or her own free act and deed. 21 The
acknowledgment in a notarial will has a two-fold purpose: (1) to safeguard the testators wishes long after
his demise and (2) to assure that his estate is administered in the manner that he intends it to be done.
A cursory examination of the acknowledgment of the will in question shows that this particular
requirement was neither strictly nor substantially complied with. For one, there was the conspicuous
absence of a notation of the residence certificates of the notarial witnesses Noynay and Grajo in the
acknowledgment. Similarly, the notation of the testators old residence certificate in the same
acknowledgment was a clear breach of the law. These omissions by respondent invalidated the will.
As the acknowledging officer of the contested will, respondent was required to faithfully observe the
formalities of a will and those of notarization. As we held in Santiago v. Rafanan:22
The Notarial Law is explicit on the obligations and duties of notaries public. They are required to
certify that the party to every document acknowledged before him had presented the proper
residence certificate (or exemption from the residence tax); and to enter its number, place of issue
and date as part of such certification.
These formalities are mandatory and cannot be disregarded, considering the degree of importance and
evidentiary weight attached to notarized documents. 23 A notary public, especially a lawyer,24 is bound to
strictly observe these elementary requirements.
The Notarial Law then in force required the exhibition of the residence certificate upon notarization of a
document or instrument:
Section 251. Requirement as to notation of payment of [cedula] residence tax. Every contract, deed,
or other document acknowledged before a notary public shall have certified thereon that the parties
thereto have presented their proper [cedula] residence certificate or are exempt from the [cedula]
residence tax, and there shall be entered by the notary public as a part of such certificate the number,
place of issue, and date of each [cedula] residence certificate as aforesaid.25
The importance of such act was further reiterated by Section 6 of the Residence Tax Act26 which stated:
When a person liable to the taxes prescribed in this Act acknowledges any document before a notary
public xxx it shall be the duty of such person xxx with whom such transaction is had or business
done, to require the exhibition of the residence certificate showing payment of the residence taxes by
such person xxx.
In the issuance of a residence certificate, the law seeks to establish the true and correct identity of the person
to whom it is issued, as well as the payment of residence taxes for the current year. By having allowed
decedent to exhibit an expired residence certificate, respondent failed to comply with the requirements of
both the old Notarial Law and the Residence Tax Act. As much could be said of his failure to demand the
exhibition of the residence certificates of Noynay and Grajo.
On the issue of whether respondent was under the legal obligation to furnish a copy of the notarized will to
the archives division, Article 806 provides:
Art. 806. Every will must be acknowledged before a notary public by the testator and the witness.
The notary public shall not be required to retain a copy of the will, or file another with the office
of the Clerk of Court. (emphasis supplied)
Respondents failure, inadvertent or not, to file in the archives division a copy of the notarized will was
therefore not a cause for disciplinary action.
Nevertheless, respondent should be faulted for having failed to make the necessary entries pertaining to the
will in his notarial register. The old Notarial Law required the entry of the following matters in the notarial
register, in chronological order:
1. nature of each instrument executed, sworn to, or acknowledged before him;
2. person executing, swearing to, or acknowledging the instrument;
3. witnesses, if any, to the signature;
4. date of execution, oath, or acknowledgment of the instrument;

5. fees collected by him for his services as notary;

6. give each entry a consecutive number; and
7. if the instrument is a contract, a brief description of the substance of the instrument. 27
In an effort to prove that he had complied with the abovementioned rule, respondent contended that he had
crossed out a prior entry and entered instead the will of the decedent. As proof, he presented a photocopy
of his notarial register. To reinforce his claim, he presented a photocopy of a certification 28 stating that the
archives division had no copy of the affidavit of Bartolome Ramirez.
A photocopy is a mere secondary evidence. It is not admissible unless it is shown that the original is
unavailable. The proponent must first prove the existence and cause of the unavailability of the original, 29
otherwise, the evidence presented will not be admitted. Thus, the photocopy of respondents notarial
register was not admissible as evidence of the entry of the execution of the will because it failed to comply
with the requirements for the admissibility of secondary evidence.
In the same vein, respondents attempt to controvert the certification dated September 21, 199930 must fail.
Not only did he present a mere photocopy of the certification dated March 15, 2000;31 its contents did not
squarely prove the fact of entry of the contested will in his notarial register.
Notaries public must observe with utmost care32 and utmost fidelity the basic requirements in the
performance of their duties, otherwise, the confidence of the public in the integrity of notarized deeds will
be undermined.33
Defects in the observance of the solemnities prescribed by law render the entire will invalid. This
carelessness cannot be taken lightly in view of the importance and delicate nature of a will, considering that
the testator and the witnesses, as in this case, are no longer alive to identify the instrument and to confirm
its contents.34 Accordingly, respondent must be held accountable for his acts. The validity of the will was
seriously compromised as a consequence of his breach of duty.35
In this connection, Section 249 of the old Notarial Law provided:
Grounds for revocation of commission. The following derelictions of duty on the part of a notary
public shall, in the discretion of the proper judge of first instance, be sufficient ground for the
revocation of his commission:
xxx

xxx

xxx

(b) The failure of the notary to make the proper entry or entries in his notarial register touching his
notarial acts in the manner required by law.
xxx

xxx

xxx

(f) The failure of the notary to make the proper notation regarding cedula certificates. 36
These gross violations of the law also made respondent liable for violation of his oath as a lawyer and
constituted transgressions of Section 20 (a), Rule 138 of the Rules of Court37 and Canon 138 and Rule 1.0139 of
the CPR.
The first and foremost duty of a lawyer is to maintain allegiance to the Republic of the Philippines, uphold
the Constitution and obey the laws of the land.40 For a lawyer is the servant of the law and belongs to a
profession to which society has entrusted the administration of law and the dispensation of justice. 41
While the duty to uphold the Constitution and obey the law is an obligation imposed on every citizen, a
lawyer assumes responsibilities well beyond the basic requirements of good citizenship. As a servant of the
law, a lawyer should moreover make himself an example for others to emulate.42 Being a lawyer, he is
supposed to be a model in the community in so far as respect for the law is concerned.43
The practice of law is a privilege burdened with conditions.44 A breach of these conditions justifies
disciplinary action against the erring lawyer. A disciplinary sanction is imposed on a lawyer upon a finding
or acknowledgment that he has engaged in professional misconduct.45 These sanctions meted out to errant
lawyers include disbarment, suspension and reprimand.
Disbarment is the most severe form of disciplinary sanction.46 We have held in a number of cases that the
power to disbar must be exercised with great caution47 and should not be decreed if any punishment less
severe such as reprimand, suspension, or fine will accomplish the end desired.48 The rule then is that
disbarment is meted out only in clear cases of misconduct that seriously affect the standing and character of
the lawyer as an officer of the court.49
Respondent, as notary public, evidently failed in the performance of the elementary duties of his office.
Contrary to his claims that he "exercised his duties as Notary Public with due care and with due regard to

the provision of existing law and had complied with the elementary formalities in the performance of his
duties xxx," we find that he acted very irresponsibly in notarizing the will in question. Such recklessness
warrants the less severe punishment of suspension from the practice of law. It is, as well, a sufficient basis
for the revocation of his commission50 and his perpetual disqualification to be commissioned as a notary
public.51
WHEREFORE, respondent Atty. Regino B. Tambago is hereby found guilty of professional misconduct. He
violated (1) the Lawyers Oath; (2) Rule 138 of the Rules of Court; (3) Canon 1 and Rule 1.01 of the Code of
Professional Responsibility; (4) Art. 806 of the Civil Code and (5) the provisions of the old Notarial Law.
Atty. Regino B. Tambago is hereby SUSPENDED from the practice of law for one year and his notarial
commission REVOKED. Because he has not lived up to the trustworthiness expected of him as a notary
public and as an officer of the court, he is PERPETUALLY DISQUALIFIED from reappointment as a notary
public.
Let copies of this Resolution be furnished to all the courts of the land, the Integrated Bar of the Philippines
and the Office of the Bar Confidant, as well as made part of the personal records of respondent. SO
ORDERED.
G.R. No. 176943

October 17, 2008

DANILO ALUAD, LEONORA ALUAD, DIVINA ALUAD, PROSPERO ALUAD, and CONNIE ALUAD,
petitioners,
vs.
ZENAIDO ALUAD, respondent.
DECISION
CARPIO MORALES, J.:
Petitioners mother, Maria Aluad (Maria), and respondent Zenaido Aluad were raised by the childless
spouses Matilde Aluad (Matilde) and Crispin Aluad (Crispin).
Crispin was the owner of six lots identified as Lot Nos. 674, 675, 676, 677, 680, and 682 of the Pilar Cadastre,
Capiz. After Crispin died, his wife Matilde adjudicated the lots to herself. 1
On November 14, 1981, Matilde executed a document entitled "Deed of Donation of Real Property Inter
Vivos"2 (Deed of Donation) in favor of petitioners mother Maria3 covering all the six lots which Matilde
inherited from her husband Crispin. The Deed of Donation provided:
That, for and in consideration of the love and affection of the DONOR [Matilde] for the DONEE [Maria], the
latter being adopted and hav[ing] been brought up by the former the DONOR, by these presents, transfer
and convey, BY WAY OF DONATION, unto the DONEE the property above-described, to become effective
upon the death of the DONOR, but in the event that the DONEE should die before the DONOR, the
present donation shall be deemed rescinded and [of] no further force and effect; Provided, however, that
anytime during the lifetime of the DONOR or anyone of them who should survive, they could use[,]
encumber or even dispose of any or even all of the parcels of land herein donated.4 (Emphasis and
underscoring supplied)
On September 30, 1986, Original Certificates of Title over Lot Nos. 674 and 676 were issued in Matildes
name.
On August 26, 1991, Matilde sold Lot No. 676 to respondent by a Deed of Absolute Sale of Real Property. 5
Subsequently or on January 14, 1992, Matilde executed a last will and testament,6 devising Lot Nos. 675, 677,
682, and 680 to Maria, and her "remaining properties" including Lot No. 674 to respondent.
Matilde died on January 25, 1994, while Maria died on September 24 of the same year.7
On August 21, 1995, Marias heirs-herein petitioners filed before the Regional Trial Court (RTC) of Roxas
City a Complaint,8 for declaration and recovery of ownership and possession of Lot Nos. 674 and 676, and
damages against respondent, alleging:
That in 1978, plaintiff[s] possessed the two (2) parcels of land above-described until January 1991 when
defendant entered and possessed the two (2) parcels of land claiming as the adopted son of Crispin Aluad
who refused to give back possession until Matilde Aluad died in [1994] and then retained the possession
thereof up to and until the present time, thus, depriving the plaintiffs of the enjoyment of said parcels of
land x x x;
That after the death of Matilde R. Aluad, the plaintiffs succeeded by inheritance by right of representation
from their deceased mother, Maria Aluad who is the sole and only daughter of Matilde Aluad[.] 9

To the complaint respondent alleged in his Answer. 10

That Lot 674 is owned by the defendant as this lot was adjudicated to him in the Last Will and Testament of
Matilde Aluad x x x while Lot 676 was purchased by him from Matilde Aluad. These two lots are in his
possession as true owners thereof.11 (Underscoring supplied)
Petitioners later filed a Motion for Leave to Amend Complaint Already Filed to Conform to Evidence 12 to
which it annexed an Amended Complaint13 which cited the donation of the six lots via Deed of Donation in
favor of their mother Maria. Branch 15 of the RTC granted the motion and admitted the Amended
Complaint.14
Respondent filed an Amended Answer15 contending, inter alia, that the Deed of Donation is forged and
falsified and petitioners change of theory showed that "said document was not existing at the time they
filed their complaint and was concocted by them after realizing that their false claim that their mother was
the only daughter of Matild[e] Aluad cannot in anyway be established by them";16 and that if ever said
document does exist, the same was already revoked by Matilde "when [she] exercised all acts of dominion
over said properties until she sold Lot 676 to defendant and until her death with respect to the other lots
without any opposition from Maria Aluad."17
The trial court, by Decision18 of September 20, 1996, held that Matilde could not have transmitted any right
over Lot Nos. 674 and 676 to respondent, she having previously alienated them to Maria via the Deed of
Donation. Thus it disposed:
WHEREFORE, in view of the foregoing, judgment is hereby rendered:
1. Declaring the plaintiffs as the rightful owners of the subject Lots Nos. 674 and 676, Pilar Cadastre;
2. Ordering the defendant to deliver the possession of the subject lots to the plaintiffs;
3. Ordering the defendant to pay the plaintiffs:
a. Thirty thousand pesos (P30,000.00) as attorneys fees;
b. Twenty thousand pesos (P20,000.00), representing the income from subject Lot 676, a year from 1991 up
to the time said lot is delivered to the plaintiffs, together with the interest thereof at the legal rate until fully
paid;
c. Ten thousand pesos (P10,000.00), representing the income from the subject Lot No. 674, a year from 1991
up to the time said lot is delivered to the plaintiffs, plus legal interest thereof at the legal rate until fully
paid; and
d. The costs of the suit.
Defendants counterclaim is ordered dismissed for lack of merit.
SO ORDERED.19
On petitioners motion, the trial court directed the issuance of a writ of execution pending appeal.20
Possession of the subject lots appears to have in fact been taken by petitioners.
By Decision21 of August 10, 2006, the Court of Appeals reversed the trial courts decision, it holding that the
Deed of Donation was actually a donation mortis causa, not inter vivos, and as such it had to, but did not,
comply with the formalities of a will. Thus, it found that the Deed of Donation was witnessed by only two
witnesses and had no attestation clause which is not in accordance with Article 805 of the Civil Code,
reading:
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator
himself 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 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 that
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.

While the appellate court declared respondent as the rightful owner of Lot No. 676, it did not so declare
with respect to Lot No. 674, as Matildes last will and testament had not yet been probated. Thus the Court
of Appeals disposed:
WHEREFORE, finding the instant petition worthy of merit, the same is hereby GRANTED and the
Decision of the Regional Trial Court of Roxas City, Branch 15, dated 20 September 1996, in Civil Case No. V6686 for declaration of ownership, recovery of ownership and possession, and damages is REVERSED and
SET ASIDE.
A new one is entered in its stead declaring defendant-appellant as the lawful owner of Lot [No.] 676 of the
Pilar Cadastre. Accordingly, plaintiffs-appellees are directed to return the possession of the said lot to the
defendant-appellant.
Moreover, plaintiffs-appellees are ordered to pay P40,000.00 to defendant-appellant as attorneys fees and
litigation expenses.
Costs against plaintiffs-appellees.
SO ORDERED.22 (Emphasis in the original; underscoring supplied)
Their Motion for Reconsideration23 having been denied,24 petitioners filed the present Petition for Review,25
contending that the Court of Appeals erred
I
X X X WHEN IT REVERSED THE DECISION OF THE COURT BELOW (RTC, Branch 15, Roxas City)
HOLDING THAT THE DEED OF DONATION INTER VIVOS IN FAVOR OF PETITIONERS MOTHER IS
IN FACT A DONATION MORTIS CAUSA.
II
X X X WHEN IT RULED THAT RESPONDENT IS THE RIGHTFUL OWNER OF LOT NO. 676 AS LOT
BUYER ON THE BASIS OF A DEED OF SALE EXECUTED BY THE DONOR WHO HAD NO MORE
RIGHT TO SELL THE SAME.
III
X X X WHEN IT FAILED TO DECLARE PETITIONERS THE RIGHTFUL OWNER OF LOT NO. 674 AFTER
HAVING RULED WHEN IT HELD THAT RESPONDENT CANNOT BE DECLARED OWNER THEREOF.
IV
X X X WHEN IT HELD THAT THE ISSUANCE OF A WRIT OF EXECUTION PENDING APPEAL IS IN
VIOLATION OF PARAGRAPH (a) SECTION 2, RULE 39, OF THE RULES OF COURT (AND ORDERING
PETITIONERS TO RETURN POSSESSION OF LOT 676 TO RESPONDENT) AND ORDERING
PETITIONERS TO PAY ATTORNEYS FEES AND COST[S] OF SUIT.26
As did the appellate court, the Court finds the donation to petitioners mother one of mortis causa, it having
the following characteristics:
(1) It conveys no title or ownership to the transferee before the death of the transferor; or what amounts to
the same thing, that the transferor should retain the ownership (full or naked) and control of the property
while alive;
(2) That before the death of the transferor, the transfer should be revocable by the transferor at will, ad
nutum; but revocability may be provided for indirectly by means of a reserved power in the donor to
dispose of the properties conveyed; and
(3) That the transfer should be void if the transferor should survive the transferee.27 (Emphasis and
underscoring supplied)
The phrase in the earlier-quoted Deed of Donation "to become effective upon the death of the DONOR"
admits of no other interpretation than to mean that Matilde did not intend to transfer the ownership of the
six lots to petitioners mother during her (Matildes) lifetime. 28
The statement in the Deed of Donation reading "anytime during the lifetime of the DONOR or anyone of
them who should survive, they could use, encumber or even dispose of any or even all the parcels of land
herein donated"29 means that Matilde retained ownership of the lots and reserved in her the right to dispose
them. For the right to dispose of a thing without other limitations than those established by law is an
attribute of ownership.30 The phrase in the Deed of Donation "or anyone of them who should survive" is of
course out of sync. For the Deed of Donation clearly stated that it would take effect upon the death of the
donor, hence, said phrase could only have referred to the donor Matilde. Petitioners themselves concede
that such phrase does not refer to the donee, thus:

x x x [I]t is well to point out that the last provision (sentence) in the disputed paragraph should only refer to
Matilde Aluad, the donor, because she was the only surviving spouse at the time the donation was executed
on 14 November 1981, as her husband Crispin Aluad [] had long been dead as early as 1975.31
The trial court, in holding that the donation was inter vivos, reasoned:
x x x The donation in question is subject to a resolutory term or period when the donor provides in the
aforequoted provisions, "but in the event that the DONEE should die before the DONOR, the present
donation shall be deemed rescinded and [of] no further force and effect". When the donor provides that
should the "DONEE" xxx die before the DONOR, the present donation shall be deemed rescinded and [of]
no further force and effect" the logical construction thereof is that after the execution of the subject donation,
the same became effective immediately and shall be "deemed rescinded and [of] no further force and effect"
upon the arrival of a resolutory term or period, i.e., the death of the donee which shall occur before that of
the donor. Understandably, the arrival of this resolutory term or period cannot rescind and render of no
further force and effect a donation which has never become effective, because, certainly what donation is
there to be rescinded and rendered of no further force and effect upon the arrival of said resolutory term or
period if there was no donation which was already effective at the time when the donee died?32
(Underscoring supplied)
A similar ratio in a case had been brushed aside by this Court, however, thus:
x x x [P]etitioners contend that the stipulation on rescission in case petitioners [donee] die ahead of [donor]
Cabatingan is a resolutory condition that confirms the nature of the donation as inter vivos.
Petitioners arguments are bereft of merit.33
xxxx
x x x The herein subject deeds expressly provide that the donation shall be rescinded in case [donees] the
petitioners predecease [the donor] Conchita Cabatingan. As stated in Reyes v. Mosqueda, one of the decisive
characteristics of a donation mortis causa is that the transfer should be considered void if the donor should
survive the donee. This is exactly what Cabatingan provided for in her donations. If she really intended that
the donation should take effect during her lifetime and that the ownership of the properties donated to the
donee or independently of, and not by reason of her death, she would not have expressed such proviso in
the subject deeds.34 (Underscoring supplied)
As the Court of Appeals observed, "x x x [t]hat the donation is mortis causa is fortified by Matildes acts of
possession as she continued to pay the taxes for the said properties which remained under her name;
appropriated the produce; and applied for free patents for which OCTs were issued under her name." 35
The donation being then mortis causa, the formalities of a will should have been observed36 but they were
not, as it was witnessed by only two, not three or more witnesses following Article 805 of the Civil Code.37
Further, the witnesses did not even sign the attestation clause 38 the execution of which clause is a
requirement separate from the subscription of the will and the affixing of signatures on the left-hand
margins of the pages of the will. So the Court has emphasized:
x x x 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[s] 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.
x x x 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.39 (Emphasis and underscoring supplied)
Furthermore, the witnesses did not acknowledge the will before the notary public, 40 which is not in
accordance with the requirement of Article 806 of the Civil Code that every will must be acknowledged
before a notary public by the testator and the witnesses.

More. The requirement that all the pages of the will must be numbered correlatively in letters placed on the
upper part of each page was not also followed. 41
The Deed of Donation which is, as already discussed, one of mortis causa, not having followed the
formalities of a will, it is void and transmitted no right to petitioners mother. But even assuming arguendo
that the formalities were observed, since it was not probated, no right to Lot Nos. 674 and 676 was
transmitted to Maria.42 Matilde thus validly disposed of Lot No. 674 to respondent by her last will and
testament, subject of course to the qualification that her (Matildes) will must be probated. With respect to
Lot No. 676, the same had, as mentioned earlier, been sold by Matilde to respondent on August 26, 1991.
Petitioners nevertheless argue that assuming that the donation of Lot No. 674 in favor of their mother is
indeed mortis causa, hence, Matilde could devise it to respondent, the lot should nevertheless have been
awarded to them because they had acquired it by acquisitive prescription, they having been in continuous,
uninterrupted, adverse, open, and public possession of it in good faith and in the concept of an owner since
1978.43
Petitioners failed to raise the issue of acquisitive prescription before the lower courts, however, they having
laid their claim on the basis of inheritance from their mother. As a general rule, points of law, theories, and
issues not brought to the attention of the trial court cannot be raised for the first time on appeal.44 For a
contrary rule would be unfair to the adverse party who would have no opportunity to present further
evidence material to the new theory, which it could have done had it been aware of it at the time of the
hearing before the trial court.45
WHEREFORE, the petition is DENIED. SO ORDERED.
EN BANC
G.R. No. L-33592

March 31, 1931

Estate of the deceased Victorina Villaranda.

EUSEBIA LIM, petitioner-appellant,
vs.
JULIANA CHINCO, oppositor-appellee.
Perfecto Gabriel and Eusebio Orense for appellant.
Camus and Delgado for appellee.
STREET, J.:
This is a contest over the probate of a paper writing purporting to be the will of Victorina Villaranda y Diaz,
a former resident of the municipality of Meycauayan, Province of Bulacan, who died in the Hospital of San
Juan de Dios, in the City of Manila, on June 9, 1929. The deceased left no descendants or ascendants, and the
document produced as her will purports to leave her estate, consisting of properties valued at P50,000, more
or less, chiefly to three collateral relatives, Eusebia, Crispina, and Maria, of the surname of Lim. This
instrument was offered for probate by Eusebia Lim, named in the instrument as executrix Opposition was
made by Juliana Chinco, a full sister of the deceased. Upon hearing the cause the trial court sustained the
opposition and disallowed the will on the ground that the testatrix did not have testamentary capacity at
the time the instrument purports to have been executed by her From this judgment the proponent of the
will appealed.
The deceased was a resident of Mercauayan, Province of Bulacan, and was about 80 years of age at the time
of her death. On the morning of June 2, 1929, she was stricken with apoplexy, incident to cerebral
hemorrhage, and was taken in an unconscious condition, seated in a chair, to her room. Doctor Geronimo Z.
Gaanan, a local physician of Meycauayan, visited the old lady, with whom he was well acquianted, three or
four times, the first visit having occurred between 6 and 7 p. m. of June 3d. Upon examining the patient, he
found her insensible and incapable of talking or controlling her movements. On the same day the parish
priest called for the purpose of administering the last rites of the church, and being unable to take her
confession, he limited himself to performing the office of extreme unction. Doctor Isidoro Lim, of Manila,
was also called upon to visit the patient and he came to see her two or three times. With his approval, it was
decided to take the woman to the hospital of San Juan de Dios in Manila, and on the morning of June 5,
1929, the ambulance from this hospital arrived, in charge of Doctor Guillermo Lopez del Castillo, a resident
physician of the hospital. At about 11 c'clock a.m. on that day she was embarked on the ambulance and
taken to the hospital, where she died four days later.
The purported will, which is the subject of this proceeding, was prepared by Perfecto Gabriel, a practicing
attorney of Manila, whose wife appears to be related to the chief beneficiaries named in the will. This
gentlemen arrived upon the scene at 9 o'clock on the forenoon of June 5, 1929. After informing himself of the
condition of the testatrix, he went into a room adjacent to that occupied by the patient and, taking a sheet

from an exercise book, wrote the instrument in question. He then took it into the sick room for execution.
With this end in view Gabriel suggested to Doctor Lopez del Castillo that he would be pleased to have
Doctor Castillo sign as a witness, but the latter excused himself for the reason that he considered the old
lady to be lacking in testamentary capacity. Another person present was Marcos Ira, a first cousin of the
deceased, and attorney Gabriel asked him also whether or not he was willing to sign as one of the witnesses.
Ira replied in a discouraging tone, and the attorney turned away without pressing the matter. In the end
three persons served as witnesses, all of whom were in friendly relations with the lawyer, and two relatives
of his wife. The intended testatrix was not able to affix her signature to the document, and it was signed for
her by the attorney.
The vital question in the case is whether the supposed testatrix had testamentary capacity at the time the
paper referred to was signed. Upon this point we are of the opinion, as was the trial judge, that the
deceased, on the morning of June 5, 1929, was in a comatose condition and incapable of performing any
conscious and valid act. The testimony of Doctor Gaanan and Doctor Lopez del Castillo is sufficient upon
this point, and this testimony is well corroborated by Paciana Diaz and Irene Ahorro. The first of these
witnesses was the one who chiefly cared for the deceased during her last illness in Meycauayan until she
was carried away to the hospital in Manila; and the second was a neighbor, who was called in when the
stroke of apoplexy first occurred and who visited the patient daily until she was removed from
Meycauayan.
The testimony of these witnesses is convincing to the effect that the patient was in a continuous state of
coma during the entire period of her stay in Meycauayan, subsequent to the attack, and that on the forenoon
of June 5, 1929, she did not have sufficient command of her faculties to enable her to do any valid act.
Doctor Lim, the physician from Manila, testified for the proponent of the will. His testimony tends to show
that the patient was not suffering from cerebral hemorrhage but from urmic trouble, and that, after the
first attack, the patient was much relieved and her mind so far cleared up that she might have made a will
on the morning of June 5th. The attorney testified that he was able to communicate with the deceased when
the will was made, and that he read the instrument over to her clause by clause and asked her whether it
expressed her wishes. He says that she made signs that enabled him to understand that she concurred in
what was written. But it is clear, even upon the statement of this witness, that the patient was unable to
utter intelligent speech. Upon the authority of Perry vs. Elio (29 Phil., 134), the paper offered for probate was
properly disallowed.
The judgment appealed from will therefore be affirmed, and it is so ordered, with costs against the
appellant.
Separate Opinions
ROMUALDEZ, J., dissenting:
I am of opinion that the will in question is genuine and that it was drawn up and signed with all the legal
requisites; therefore, I vote for its allowance, and the consequent reversal of the judgment appealed from.
EN BANC
G.R. No. L-5263

February 17, 1954

AGUSTIN BARRERA, ET AL., proponents-appellants,

vs.
JOSE TAMPOCO, ET AL., oppositors-appellees.
Jesus G. Barrera for appellants.
Filemon Cajator for appellees.
PARAS, C.J.:
Olivia Villapaa died in Tarlac, Tarlac, on December 13, 1948. On December 31, 1948, a petition was filed by
Agustin Barrera in the Court of First Instance of Tarlac for the probate of the will executed by Olivia
Villapaa on July 17, 1948, and for the appointment of the petitioner as executor. According to the petition
the properties left by the testatrix are worth P94,852.96, and the heirs instituted are nephews and nieces and
grandchildren in the collateral line. Jose Tampoco and Victoriano Tampoco, alleged grandchildren of the
testatrix in the direct line, filed an opposition, claiming that the will was not executed and attested in
accordance with the law, that the testatrix lacked testamentary capacity, that there was undue influence and
pressure in its execution, that the signature of Olivia Villapaa was obtained by fraud and trickery, and that
the testamentary provisions are illegal. Consorcia Lintang, Nemesio Villapaa, Marcos Villapaa, Jesus
Villapaa, Vicente Villapaa, Ursulo Villapaa, Avelina Villapaa, and Rosario Villapaa, alleged nephews
and nieces, also filed an opposition on substantially the same grounds on which the opposition of Jose and
Victoriano Tampoco was based. After protracted trial, and more than a year after submission of the case, a

decision was rendered by the Court of First Instance of Tarlac on August 11, 1951, disallowing the will. The
court found that Olivia Villapaa had testamentary capacity, that there was no forgery, fraud, trickery or
undue influence in the execution of the will, and that petition of forced heirs is not a ground for denying
probate; but the will was disallowed because it was not the personal last will and testament of the deceased
and it was not based on the finding that Olivia Villapaa did not furnish the names of the persons instituted
as heirs and that the will was not read to her before she signed it. The second ground is premised on the
conclusion that attesting witness Laureano Antonio was not present when Olivia Villapaa and attesting
witness Honorio Lacson signed the will; that Antonio only partially saw the signing by attesting witness
Modesto Puno; and that Olivia Villapaa saw Antonio sign only two or three times. From this decision the
petitioner has appealed.
According to appellant's evidence, two or three days before July 10, 1948, Pilar Taedo called on Modesto
Puno, a lawyer and justice of the peace of Concepcion, Tarlac, and requested the latter to come to Manila for
a conference with Olivia Villapaa, aunt of Pilar. On July 10, 1948, Atty. Puno, complying with the request,
went to the house of Pilar Taedo in Singalong Street where Olivia was staying. The latter, after preliminary
greetings and courtesies, informed Atty. Puno that she wanted him to prepare her will, giving the names of
the heirs and the properties to be left. Olivia Villapaa asked Atty. Puno to get the description of the
properties from the herein appellant, Agustin Barrera, husband of Pilar Taedo. Atty. Puno noted the
wishes of Olivia, and, as there was then no available typewriter, he informed the old woman that he would
prepare the will in his office in Concepcion and come back with it on the following Saturday. As promised,
on or July 17, 1948, Atty. Puno returned to the house of Olivia Villapaa in Singalong, carrying with him
one original and three copies, in typewritten form, of the will he drafted in accordance with the instructions
of Olivia Villapaa. Atty. Puno arrived about noon. He read the will to Olivia to find out whether it
conformed to her wishes, and she indicated that it was all right. After lunch Atty. Puno manifested that two
other witnesses were necessary, whereupon Pilar Taedo requested Honorio Lacson and Laureano Antonio,
who were then living in the first floor of the house, to come up. Lacson and Antonio did as requested. Olivia
Villapaa, Atty. Puno, Lacson and Antonio were then seated around a small rectangular table in sala, and at
this juncture Atty. Puno gave a copy of the will to Olivia, Lacson and Antonio, while he retained one. The
Attorney again read the will aloud, advising the rest to check their respective copies. As Olivia Villapaa
agreed to the will, she proceeded to sign all the four copies, on the lines previously placed by Atty. Puno,
followed successively by Lacson, Atty. Puno and Antonio, all in the presence of each other. After the
signing, Atty. Puno gave the original and a copy to Olivia, and retained the other two copies. Atty. Puno ,
Lacson and Antonio stayed for a while even ate merienda prepared by the sisters Pilar and Beatriz Taedo.
Olivia Villapaa delivered her will to Agustin Barrera for safekeeping on October 17, 1948 when she was
taken to the U.S.T. Hospital where she remained until November 7, 1948. On this date her doctors lost all
hope for her recovery and Olivia Villapaa was brought to Tarlac, Tarlac, her hometown, where, as already
stated, she died on December 13, 1948.
According to the evidence for the oppositors-appellees, the will presented in the court by the petitioner was
not executed in accordance with law, in that attesting witness Laureano Antonio did not see the testatrix
and attesting witness Lacson sign the will or any of its copies, that he saw Atty. Puno when the latter was
already half thru signing the document, and that the testatrix did not see Antonio sign all the copies.
After a thorough study of the record and mature reflection on the conflicting evidence, we are constrained
to conclude that the trial court erred in denying probate of the will.
Of the three attesting witnesses, namely, Atty. Modesto Puno, Honorio Lacson, and Laureano Antonio, the
first two testified positively that the will was signed by the testatrix and the three witnesses in the presence
of each other, and that it was read to the testatrix before being signed. In view of the opposition filed by the
two sets of oppositors , the third attesting witness, Laureano Antonio, had to be presented by the petitioner
but, contrary to expectations, Antonio testified that he arrived at the scene of the execution of the will after
testatrix and Honorio Lacson had already signed and after Atty. Puno was half through affixing his
signatures, and that the testatrix left before Antonio finished signing all the copies. By numerical superiority
alone, the weight of the testimony of Atty. Puno and Honorio Lacson outbalances the probative value of the
testimony of Laureano Antonio. Intrinsically, we cannot state that Laureano Antonio spoke the truth on the
witness stand, since, in the first place, the attestation clause signed by him contradicts his pretense and, in
the second place, there is enough evidence on the record to show that in his conferences with Atty. Barrera
before taking the witness stand, Antonio never gave the slightest indication that he was not present when
the testatrix left before Antonio finished signing. Modesto Puno is a lawyer and at the time a justice of the
peace, and it is improbable that he would unnecessarily risk his honor and reputation. Indeed, the trial
court gave the impression that Atty. Puno was anxious to strictly meet the requirements of the law and in
the absence, as in the case at bar, of any reason for a hasty completion, we do not believe that Atty. Puno
would have allowed the signing of the will to be proceeded with unless three attesting witnesses were
already present. On the other hand, we can fairly state that there was in fact no hurry on the part of any of

the participants in the will, because the testatrix Olivia Villapaa was not dying (she died some five months
after the execution of the will) and the parties could therefore take all the time that they wanted, Indeed,
none of the three witnesses, left the house of Olivia Villapaa and they even stayed therein until after
merienda time.
The fact that Atty. Puno id the brother of Jose Puno who is the husband of Carmen Taedo, one of the
beneficiaries of the will, and that Honorio Lacson is the husband of Bibiana Lacson who is a first cousin of
Agustin Barrera, herein petitioner and husband of Pilar Taedo, is not sufficient to make then biased
witnesses. If Atty. Puno had any material interest, this fact should have caused him to be more careful in
seeing to it that the formalities of the law were strictly complied with, and this should be true with respect
to Honorio Lacson.
In deciding against the probate of the will, the trial court believed the testimony of Laureano Antonio to the
effect that he arrived at the place of the signing at about 2:30 in the afternoon, and thereby found that a
greater part of the proceeding was finished, because Atty. Puno declared in one place that "the signing of
the testament commenced around between one o'clock and two o'clock" and in another place that the
signing took place "around two and three o'clock," and Honorio Lacson declared that he was called by Pilar
Taedo to act as witness at around two o'clock or two thirty. From the testimony of Atty. Puno and Honorio
Lacson the court concluded that the signing actually commenced between one and two o'clock. We are of
the opinion that the specification of the time of the signing refers to an immaterial or unimportant detail
which, in view of the lapse of time, might have been a mistake by one or the other participant in the
execution of Oliva's will. What is important and decisive and this should be impressed in the mind of an
attorney preparing and taking charge of the signing of will, is that the testatrix and each of the three
attesting witnesses must affix their signatures in the presence of one another. In the case before us, Atty.
Puno and Honorio
Lacson both attesting witnesses, categorically affirmed that this procedure was followed. At any rate, even
under the testimony of Atty. Puno and Honorio Lacson, the signing could have taken place at about or after
two thirty, since the former declared that it took place between two and three o'clock and Honorio Lacson
stated that the time was two or two thirty. another point invoked by the trial court against the probate of the
will is the circumstance that, while Atty. Puno testified that he placed the lines on which the testatrix and
the witnesses were to sign before he read the document to the testatrix whom he gave the original witness
Lacson testify that Atty. Puno read the original after giving a copy to the testatrix, and after reading Atty.
Puno placed the lines for signatures. The discrepancy again refers to a minor detail which is not sufficient to
negative the truthfulness of Atty. Puno and Honorio Lacson on the main and important fact that the will
was signed by the testatrix and the three attesting witnesses in the presence of each other.
Oppositors-appellees presented in corroboration of the testimony of Laureano Antonio, Joaquin Villapaa
and Consolacion del Mundo. Joaquin Villapaa, a painter allegedly was then the maid of Oliva Villapaa.
Apart from the fact that there is evidence to show that both Joaquin Villapaa and Consolacion del Mundo
were not yet employed in the house of Oliva when the latter's will was executed, there is little or no reason
for their version to prevail over the positive testimony is even corroborated by two other witnesses, Bibiana
Lacson and Beatriz Taedo. Certainly the story of Joaquin Villapaa and Consolacion del Mundo can have
no greater weight than that of Laureano Antonio.
In the holding that the will was not that of Oliva Villapaa, the trial court found that it was not read to her;
and this finding was premised on the alleged contradiction of Atty. Puno and Honorio Lacson regarding the
sequence of the reading of the will and the placing of the lines for signatures, and regarding the question
whether a copy or the original was handed to the testatrix. As we have already observed, the discrepancy
relates to an insignificant matter which cannot vitally detract from the credibility of Atty. Puno to the effect
that upon arrival at the house of Oliva Villapaa at about noon, he read the will to her with a view to
finding whether she was agreeable thereto. It is not necessary that said will be read upon its signing and in
the presence of the witnesses.
The trial court also concluded that the testatrix could not have furnished the names of the heirs instituted
under the will, because (1) Salvador Taedo, one of such heirs, was long dead and (2) Marcelo Villapaa,
another instituted heir, was non-existent, since Oliva Villapaa did not have a grandson by such name. It is
true that Salvador Taedo was already dead and the testatrix knew about it, but it is not uncommon for a
woman of old age, confused by the big number of her relatives, to commit the mistake of unwittingly
mentioning a dead one. With respect to the instituted heir, Marcelo Villapaa, while it appears that Oliva
did not have a grandson answering to that name, there is evidence tending to show that Pioquinto
Villapaa, a child of Ruperta Pineda, must have been reffered to, because Oliva, who was the child's godmother, originally wanted said child to be baptized as Marcelo, after his father. Moreover, if Atty. Puno had
supplied the names instituted as heirs, he would have consulted all the interested parties and would be sure
that no mistake of the kind was made.

As a closing observation, it is not for us to discover the motives of Oliva Villapaa in leaving her properties
to the person named in the will, and omitting therefrom the oppositors-appellees. Suffice it to state that the
trial court itself found the will to have been executed free from falsification, fraud, trickery or undue
influence, with Oliva having testamentary capacity; and in such a situation it becomes our duty to give
expression to her will.
Wherefore, the appealed order is reversed and the will executed by Oliva Villapaa on July 17, 1948, is
hereby allowed. So ordered without costs.
G.R. No. 76648 February 26, 1988
THE HEIRS OF THE LATE MATILDE MONTINOLA-SANSON, petitioners,
vs.
COURT OF APPEALS and EDUARDO F. HERNANDEZ, respondents.
GANCAYCO, J.:
This is a petition for review on certiorari of the decision of the Court of Appeals 1 promulgated August
29,1986 affirming in toto the decision of the Regional Trial Court of Manila, Branch XXII 2 dated March 21,
1985, the dispositive part of which reads:
WHEREFORE, the Court renders judgment declaring the holographic will marked in
evidence as Exhibit "H" as one wholly written, dated, and signed freely by the late Herminia
Montinola in accordance with law while in possession of full testamentary capacity, and
allowing and admitting the same to probate.
Upon the finality of the decision, let letters testamentary issue to the executor, Eduardo F.
Hernandez, as well as the certificate of probate prescribed under Section 13 of Rule 76 of the
Rules of Court.
SO ORDERED. 3
This case arose from a petition filed by private respondent Atty. Eduardo F. Hernandez on April 22, 1981
with the Court of First Instance of Manila (now Regional Trial Court) seeking the probate of the holographic
will of the late Herminia Montinola executed on January 28, 1980. 4 The testatrix, who died single, parentless
and childless on March 29,1981 at the age of 70 years, devised in this will several of her real properties to
specified persons.
On April 29,1981, private respondent who was named executor in the will filed an urgent motion for
appointment of special administrator. 5 With the conformity of all the relatives and heirs of the testatrix
except oppositor, the court in its order of May 5, 1981 6 appointed private respondent as Special
Administrator of the testate estate of deceased.
On June 29,1981, Matilde Montinola Sanson (petitioner), the only surviving sister of the deceased but who
was not named in the said win, filed her Opposition to Probate of Will, 7 alleging inter alia: that the subject
will was not entirely written, dated and signed by the testatrix herself and the same was falsely dated or
antedated; that the testatrix was not in full possession of her mental faculties to make testamentary
dispositions; that undue influence was exerted upon the person and mind of the testatrix by the
beneficiaries named in the win; and that the will failed to institute a residual heir to the remainder of the
estate.
After a hearing on the merits, the probate court, finding the evidence presented in support of the petition to
be conclusive and overwhelming, rendered its decision allowing the probate of the disputed will.
Petitioner thus appealed the decision of the probate court to the Court of Appeals which affirmed in toto the
decision. 8
On September 24,1986, petitioner filed with the respondent court a motion for new trial. 9 Attached to her
motion was the Affidavit of Merit of Gregorio Montinola Sanson, petitioner's son, alleging that witnesses
have been located whose testimonies could shed light as to the ill health of the testatrix as well as undue
influence exerted on the latter.
The appellate court in its resolution of October 13, 1986, 10 denied the motion for new trial of petitioner on
the following grounds: (1) the Affidavit of merit attached to the motion alleged that efforts were exerted to
locate unnamed witnesses only after the court's decision was handed down, and (2) the unnamed witnesses
would allegedly shed light on the fact of grave illness of the testatrix as well as the undue influence exerted
on her which are merely corroborative or cumulative since these facts were brought to light during the trial.

The motion for reconsideration of petitioner dated October 27, 1986 11 was likewise denied by the appellate
court in its resolution of November 20, 1986 12 on the ground that the affidavit of one Patricia Delgado
submitted with the motion constitutes cumulative evidence and the motion being in reality a second motion
for reconsideration which is prescribed by law.
In the petition now before Us, petitioner assigned the following errors:
I
THE RESPONDENT COURT OF APPEALS ERRED IN DENYING PETITIONERS' MOTION
FOR NEW TRIAL ON THE GROUND THAT THE EVIDENCE SOUGHT TO BE
PRESENTED IS MERELY CUMULATIVE.
II
THE SAID COURT ERRED IN DENYING PETITIONERS' MOTION FOR
RECONSIDERATION OF THE RESOLUTION DENYING THE AFORESAID MOTION FOR
NEW TRIAL.
III
AT ANY RATE, THE SAID COURT ERRED IN HOLDING THAT THE HOLOGRAPHIC
WILL IN QUESTION WAS WHOLLY WRITTEN, DATED AND SIGNED BY THE LATE
HERMINIA MONTINOLA.
IV
THE SAID COURT ERRED IN NOT FINDING THAT THE ALLEGED WILL WAS
FRAUDULENTLY ANTEDATED TO CONCEAL ITS ACTUAL DATE OF EXECUTION
AND TO SHIELD IT FROM PROBABLE DISPUTES AS TO THE TESTAMENTARY
CAPACITY ON THE PART OF THE ALLEGED TESTATRIX AT THE TIME OF ITS
ACTUAL EXECUTION.
V
THE SAID COURT ERRED IN HOLDING THAT THE LATE HERMINIA MONTINOLA
WAS NOT SUBJECTED TO UNDUE PRESSURE AND IMPROPERIMPORTUNINGS ON
THE PART OF THOSE STANDING TO BENEFIT FROM THE ALLEGED WILL.
VI
THE SAID COURT ERRED IN ALLOWING THE HOLOGRAPHIC WILL IN QUESTION TO
PROBATE.
In the meantime, petitioner who passed away on November 3, 1986, was substituted by her heirs.
In the first and second assigned errors, petitioners maintain that the appellate court erred in denying the
motion for new trial insisting that the new evidence sought to be presented is not merely corroborative or
cumulative.
On the other hand, the contention of private respondent is that the motion for new trial was a pro-forma
motion because it was not in accordance with Sec. 1, Rule 53 of the Rules of Court. We find merit in this
contention.
Section 1, Rule 53 provides
Before a final order or judgment rendered by the Court of appeals becomes executory, a
motion for new trial may be filed on the ground of newly discovered evidence which could
not have been discovered prior to the trial in the court below by the exercise of the diligence
and which is of such a character as would probably change the result. The motion shall be
accompanied by affidavits showing the facts constituting the grounds therefor and the newly
discovered evidence.
The affidavit of merit executed by Gregorio Montinola Sanson alleged the following:
xxx xxx xxx
3. That in her plea for new trial in the said case, I have exerted efforts to locate witnesses
whose whereabouts were not known to us during the trial in the lower court, but I have
finally succeeded in tracking them down;
4. That despite their initial reluctance to testify in this case,I am convinced that they would
testify under proper subpoena for purposes of shedding light on the fact that the testatrix
was gravely ill at or but the time that the questioned will was allegedly executed;

5. That they had the clear opportunity to know the circumstances under which the purported
will was executed; and that they know for a fact that there was 'undue influence' exerted by
petitioner and other relatives to procure improper favors from the testatrix;
xxx xxx xxx 13
Said motion for new trial is not in substantial compliance with the requirements of Rule 53. The lone
affidavit of a witness who was already presented said the hearing is hardly sufficient to justify the holding
of new trial. The alleged new witnesses were unnamed without any certainty as, to their appearance before
the court to testify. Affiant attests only on his belief that they would testify if and when they are subpoenaed
by the court. Furthermore, the allegations in the affidavit as to the undue influence exerted on the testatrix
are mere conclusions and not statement of facts. The requisite affidavits must state facts and not mere
conclusions or opinions, otherwise they are not valid. 14 The affidavits are required to avoid waste of the
court's time if the newly discovered evidence turns out to be immaterial or of any evidentiary weight.
Moreover, it could not be said that the evidence sought to be presented is new having been discovered only
after the trial. It is apparent from the allegations of affiant that efforts to locate the witnesses were exerted
only after the decision of the appellate court was handed down. The trial lasted for about four years so that
petitioner had ample time to find said alleged witnesses who were admittedly known to her. The evidence
which the petitioner now propose to present could have been discovered and presented during the hearing
of the case, and there is no sufficient reason for concluding that had the petitioner exercised proper
diligence she would not have been able to discover said evidence. 15
In addition, We agree with the appellate court that since the alleged illness of the testatrix as well as the
charges of undue influence exerted upon her had been brought to light during the trial, and new evidence
on this point is merely corroborative and cumulative which is generally not a ground for new trial. 16
Accordingly, such evidence even if presented win not carry much probative weight which can alter the
judgment. 17
It is very patent that the motion for new trial was filed by petitioner only for the purpose of delaying the
proceedings. In fact, petitioners son in his manifestation admitted that he had to request a new law firm to
do everything legally possible to meet the deadline for the filing of a motion for reconsideration and/or for
new trial. 18 This would explain the haphazard preparation of the motion, thus failing to comply with the
requirements of rule 53, which was filed on the last day of the reglementary period of appeal so that the
veracity of the ground relied upon is questionable. The appellate court correctly denied the motion for new
trial.
The motion for new trial being pro-forma, it does not interrupt the running of the period for appeal. 19 Since
petitioner's motion was filed on September 24,1986, the fifteenth or last day of the period to appeal, the
decision of the respondent court became final on the following day, September 25. And when the motion for
reconsideration of petitioner was filed on October 30,1986, it was obviously filed out of time.
Since the questioned decision has already become final and executory, it is no longer within the province of
this Court to review it. This being so, the findings of the probate court as to the due execution of the will
and the testamentary capacity of testatrix are now conclusive. 20
At any rate, even assuming that We can still review this case on its merits, the petition will also have to fail.
During the hearing before the probate court, not only were three (3) close relatives of the testatrix presented
but also two (2) expert witnesses who declared that the contested will and signature are in the handwriting
of the testatrix. These testimonies more than satisfy the requirements of Art. 811 of the Civil Code 21 in
conjunction with Section 11 of Rule 76, Revised Rules of Court, 22 or the probate of holographic wills.
As regards the alleged antedating of the will, petitioner failed to present competent proof that the will was
actually executed sometime in June 1980 when the testatrix was already seriously ill and dying of terminal
lung cancer. She relied only on the supposed inconsistencies in the testimony of Asuncion Gemperle, niece
and constant companion of testatrix, which upon careful examination did not prove such claim of
antedating.
The factual findings of the probate court and the Court of Appeals that the will in question was executed
according to the formalities required by law are conclusive on the Supreme Court when supported by
evidence. 23 We have examined the records of this case and find no error in the conclusion arrived at by the
respondent court that the contested will was duly executed in accordance with law.
Petitioner alleges that her exclusion from the alleged holographic will was without rhyme or reason, being
the only surviving sister of the testatrix with whom she shares an intimate relationship, thus demonstrating
the lack of testamentary capacity of testatrix.
In the case of Pecson v. Coronel, 24 it was held

The appellants emphasize the fact that family ties in this country are very strongly knit and
that the exclusion of a relative from one's estate is an exceptional case. It is true that the ties of
relationship in the Philippines are very strong, but we understand that cases of preterition of
relatives from the inheritance are not rare. The liberty to dispose of one's estate by will when
there are no forced heirs is rendered sacred by the Civil Code in force in the Philippines since
1889...
Article 842 of the Civil Code provides that one who has no compulsory heirs may dispose by will of all his
estate or any part of it in favor of any person having capacity to succeed.
It is within the right of the testatrix not to include her only sister who is not a compulsory heir in her will.
Nevertheless, per testimony of Asuncion Gemperle, the latter had reserved two boxes of jewelry worth
P850,000.00 for petitioner. Furthermore, petitioner's son Francis was instituted as an heir in the contested
will.
Petitioner still insists that the fact that in her holographic will the testatrix failed to dispose of all of her
estate is an indication of the unsoundness of her mind.
We cannot subscribe to this contention. Art. 841 of the Civil Code provides
A will shall be valid even though it should not contain an institution of an heir, or such
institution should not comprise the entire estate, and even though the person so instituted
should not accept the inheritance or should be incapacitated to succeed.
In such cases, the testamentary dispositions made in accordance with law shall be complied
with and the remainder of the estate shall pass to the legal heirs.
Thus, the fact that in her holographic will, testatrix disposed of only eleven (11) of her real properties does
not invalidate the will, or is it an indication that the testatrix was of unsound mind. The portion of the estate
undisposed of shall pass on to the heirs of the deceased in intestate succession.
Neither is undue influence present just because blood relatives, other than compulsory heirs have been
omitted, for while blood ties are strong in the Philippines, it is the testator's right to disregard noncompulsory heirs. 25 The fact that some heirs are more favored than others is proof of neither fraud or undue
influence. 26 Diversity of apportionment is the usual reason for making a testament, otherwise, the decedent
might as well die intestate. 27
The contention of the petitioner that the will was obtained by undue influence or improper pressure exerted
by the beneficiaries of the will cannot be sustained on mere conjecture or suspicion; as it is not enough that
there was opportunity to exercise undue influence or a possibility that it may have been exercised. 28 The
exercise of improper pressure and undue influence must be supported by substantial evidence that it was
actually exercised. 29
Finally, We quote with approval the observation of the respondent court
There is likewise no question as to the due execution of the subject Will. To Our minds, the
most authentic proof that decreased had testamentary capacity at the time of the execution of
the Will, is the Will itself which according to a report of one of the two expert witnesses
(Exhibits X to X-3) reveals the existence of significant handwriting characteristics such as:
1. Spontaneity, freedom, and speed of writing
xxx xxx xxx
3. good line quality.
4. presence of natural variation... (Exhibit X).
The characteristics of spontaneity, freedom and good line quality could not be achieved by
the testatrix if it was true that she was indeed of unsound mind and/or under undue
influence or improper pressure when she the Will.
IN VIEW OF THE FOREGOING CONSIDERATIONS, the petition is DENIED for lack of merit with costs
against petitioner. The decision of respondent court dated August 29, 1986 in toto the decision of the
Regional Trial Court of Manila dated March 21, 1985 is hereby declared to be immediately executory. SO
ORDERED.
G.R. No. 106720 September 15, 1994
SPOUSES ROBERTO AND THELMA AJERO, petitioners,
vs.
THE COURT OF APPEALS AND CLEMENTE SAND, respondents.

Miguel D. Larida for petitioners.

Montilla Law Office for private respondent.
PUNO, J.:
This is an appeal by certiorari from the Decision of the Court of
Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the dispositive portion of which reads;
PREMISES CONSIDERED, the questioned decision of November 19, 1988 of the trial court is
hereby REVERSED and SET ASIDE, and the petition for probate is hereby DISMISSED. No
costs.
The earlier Decision was rendered by the RTC of Quezon City, Branch 94, 2 in Sp. Proc. No. Q-37171,
and the instrument submitted for probate is the holographic will of the late Annie Sand, who died
on November 25, 1982.
In the will, decedent named as devisees, the following: petitioners Roberto and Thelma Ajero, private
respondent Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and
Dr. Jose Ajero, Sr., and their children.
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance of decedent's holographic
will. They alleged that at the time of its execution, she was of sound and disposing mind, not acting under
duress, fraud or undue influence, and was in every respect capacitated to dispose of her estate by will.
Private respondent opposed the petition on the grounds that: neither the testament's body nor the signature
therein was in decedent's handwriting; it contained alterations and corrections which were not duly signed
by decedent; and, the will was procured by petitioners through improper pressure and undue influence.
The petition was likewise opposed by Dr. Jose Ajero. He contested the disposition in the will of a house and
lot located in Cabadbaran, Agusan Del Norte. He claimed that said property could not be conveyed by
decedent in its entirety, as she was not its sole owner.
Notwithstanding the oppositions, the trial court admitted the decedent's holographic will to probate. It
found, inter alia:
Considering then that the probate proceedings herein must decide only the question of
identity of the will, its due execution and the testamentary capacity of the testatrix, this
probate court finds no reason at all for the disallowance of the will for its failure to comply
with the formalities prescribed by law nor for lack of testamentary capacity of the testatrix.
For one, no evidence was presented to show that the will in question is different from the will
actually executed by the testatrix. The only objections raised by the oppositors . . . are that the
will was not written in the handwriting of the testatrix which properly refers to the question
of its due execution, and not to the question of identity of will. No other will was alleged to
have been executed by the testatrix other than the will herein presented. Hence, in the light of
the evidence adduced, the identity of the will presented for probate must be accepted, i.e., the
will submitted in Court must be deemed to be the will actually executed by the testatrix.
xxx xxx xxx
While the fact that it was entirely written, dated and signed in the handwriting of the
testatrix has been disputed, the petitioners, however, have satisfactorily shown in Court that
the holographic will in question was indeed written entirely, dated and signed in the
handwriting of the testatrix. Three (3) witnesses who have convincingly shown knowledge of
the handwriting of the testatrix have been presented and have explicitly and categorically
identified the handwriting with which the holographic will in question was written to be the
genuine handwriting and signature of the testatrix. Given then the aforesaid evidence, the
requirement of the law that the holographic will be entirely written, dated and signed in the
handwriting of the testatrix has been complied with.
xxx xxx xxx
As to the question of the testamentary capacity of the testratix, (private respondent)
Clemente Sand himself has testified in Court that the testatrix was completely in her sound
mind when he visited her during her birthday celebration in 1981, at or around which time
the holographic will in question was executed by the testatrix. To be of sound mind, it is
sufficient that the testatrix, at the time of making the will, knew the value of the estate to be
disposed of, the proper object of her bounty, and the character of the testamentary act . . . The

will itself shows that the testatrix even had detailed knowledge of the nature of her estate.
She even identified the lot number and square meters of the lots she had conveyed by will.
The objects of her bounty were likewise identified explicitly. And considering that she had
even written a nursing book which contained the law and jurisprudence on will and
succession, there is more than sufficient showing that she knows the character of the
testamentary act.
In this wise, the question of identity of the will, its due execution and the testamentary
capacity of the testatrix has to be resolved in favor of the allowance of probate of the will
submitted herein.
Likewise, no evidence was presented to show sufficient reason for the disallowance of herein
holographic will. While it was alleged that the said will was procured by undue and
improper pressure and influence on the part of the beneficiary or of some other person, the
evidence adduced have not shown any instance where improper pressure or influence was
exerted on the testatrix. (Private respondent) Clemente Sand has testified that the testatrix
was still alert at the time of the execution of the will, i.e., at or around the time of her birth
anniversary celebration in 1981. It was also established that she is a very intelligent person
and has a mind of her own. Her independence of character and to some extent, her sense of
superiority, which has been testified to in Court, all show the unlikelihood of her being
unduly influenced or improperly pressured to make the aforesaid will. It must be noted that
the undue influence or improper pressure in question herein only refer to the making of a
will and not as to the specific testamentary provisions therein which is the proper subject of
another proceeding. Hence, under the circumstances, this Court cannot find convincing
reason for the disallowance of the will herein.
Considering then that it is a well-established doctrine in the law on succession that in case of
doubt, testate succession should be preferred over intestate succession, and the fact that no
convincing grounds were presented and proven for the disallowance of the holographic will
of the late Annie Sand, the aforesaid will submitted herein must be admitted to probate. 3
(Citations omitted.)
On appeal, said Decision was reversed, and the petition for probate of decedent's will was dismissed. The
Court of Appeals found that, "the holographic will fails to meet the requirements for its validity." 4 It held
that the decedent did not comply with Articles 813 and 814 of the New Civil Code, which read, as follows:
Art. 813: When a number of dispositions appearing in a holographic will are signed without
being dated, and the last disposition has a signature and date, such date validates the
dispositions preceding it, whatever be the time of prior dispositions.
Art. 814: In case of insertion, cancellation, erasure or alteration in a holographic will, the
testator must authenticate the same by his full signature.
It alluded to certain dispositions in the will which were either unsigned and undated, or signed but not
dated. It also found that the erasures, alterations and cancellations made thereon had not been authenticated
by decedent.
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that will shall be disallowed in any of the following cases:
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally incapable to make a will, at the time of its
execution;
(c) If it was executed under duress, or the influence of fear, or threats;
(d) If it was procured by undue and improper pressure and influence, on the part of the
beneficiary, or of some other person for his benefit;
(e) If the signature of the testator was procured by fraud or trick, and he did not intend that
the instrument should be his will at the time of fixing his signature thereto.
In the same vein, Article 839 of the New Civil Code reads:
Art. 839: The will shall be disallowed in any of the following cases;
(1) If the formalities required by law have not been complied with;

(2) If the testator was insane, or otherwise mentally incapable of making a will,
at the time of its execution;
(3) If it was executed through force or under duress, or the influence of fear, or
threats;
(4) If it was procured by undue and improper pressure and influence, on the
part of the beneficiary or of some other person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that the instrument he
signed should be his will at the time of affixing his signature thereto.
These lists are exclusive; no other grounds can serve to disallow a will. 5 Thus, in a petition to admit a
holographic will to probate, the only issues to be resolved are: (1) whether the instrument submitted is,
indeed, the decedent's last will and testament; (2) whether said will was executed in accordance with the
formalities prescribed by law; (3) whether the decedent had the necessary testamentary capacity at the time
the will was executed; and, (4) whether the execution of the will and its signing were the voluntary acts of
the decedent. 6
In the case at bench, respondent court held that the holographic will of Anne Sand was not executed in
accordance with the formalities prescribed by law. It held that Articles 813 and 814 of the New Civil Code,
ante, were not complied with, hence, it disallowed the probate of said will. This is erroneous.
We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that:
The object of the solemnities surrounding the execution of wills is to close the door against
bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth
and authenticity. Therefore, the laws on this subject should be interpreted in such a way as to
attain these primordial ends. But, on the other hand, also one must not lose sight of the fact
that it is not the object of the law to restrain and curtail the exercise of the right to make a
will. So when an interpretation already given assures such ends, any other interpretation
whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless
and frustrative of the testator's last will, must be disregarded.
For purposes of probating non-holographic wills, these formal solemnities include the subscription,
attestation, and acknowledgment requirements under Articles 805 and 806 of the New Civil Code.
In the case of holographic wills, on the other hand, what assures authenticity is the requirement that they be
totally autographic or handwritten by the testator himself, 7 as provided under Article 810 of the New Civil
Code, thus:
A person may execute a holographic will which must be entirely written, dated, and signed
by the hand of the testator himself. It is subject to no other form, and may be made in or out of
the Philippines, and need not be witnessed. (Emphasis supplied.)
Failure to strictly observe other formalities will not result in the disallowance of a holographic will
that is unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its requirement affects the validity of the
dispositions contained in the holographic will, but not its probate. If the testator fails to sign and date some
of the dispositions, the result is that these dispositions cannot be effectuated. Such failure, however, does
not render the whole testament void.
Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance with the
provisions of Article 814. In the case of Kalaw vs. Relova 132 SCRA 237 242 (1984), this Court held:
Ordinarily, when a number of erasures, corrections, and interlineations made by the testator
in a holographic Will have not been noted under his signature, . . . the Will is not thereby
invalidated as a whole, but at most only as respects the particular words erased, corrected or
interlined. Manresa gave an identical commentary when he said "la omission de la salvedad
no anula el testamento, segun la regla de jurisprudencia establecida en la sentencia de 4 de
Abril de 1985." 8 (Citations omitted.)
Thus, unless the unauthenticated alterations, cancellations or insertions were made on the date of the
holographic will or on testator's signature, 9 their presence does not invalidate the will itself. 10 The lack of
authentication will only result in disallowance of such changes.
It is also proper to note that the requirements of authentication of changes and signing and dating of
dispositions appear in provisions (Articles 813 and 814) separate from that which provides for the necessary

conditions for the validity of the holographic will (Article 810). The distinction can be traced to Articles 678
and 688 of the Spanish Civil Code, from which the present provisions covering holographic wills are taken.
They read as follows:
Art. 678: A will is called holographic when the testator writes it himself in the form and with
the requisites required in Article 688.
Art. 688: Holographic wills may be executed only by persons of full age.
In order that the will be valid it must be drawn on stamped paper corresponding to the year
of its execution, written in its entirety by the testator and signed by him, and must contain a
statement of the year, month and day of its execution.
If it should contain any erased, corrected, or interlined words, the testator must identify them
over his signature.
Foreigners may execute holographic wills in their own language.
This separation and distinction adds support to the interpretation that only the requirements of Article 810
of the New Civil Code and not those found in Articles 813 and 814 of the same Code are essential to
the probate of a holographic will.
The Court of Appeals further held that decedent Annie Sand could not validly dispose of the house and lot
located in Cabadbaran, Agusan del Norte, in its entirety. This is correct and must be affirmed.
As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the
will sought to be probated. However, in exceptional instances, courts are not powerless to do what the
situation constrains them to do, and pass upon certain provisions of the will. 11 In the case at bench,
decedent herself indubitably stated in her holographic will that the Cabadbaran property is in the name of
her late father, John H. Sand (which led oppositor Dr. Jose Ajero to question her conveyance of the same in
its entirety). Thus, as correctly held by respondent court, she cannot validly dispose of the whole property,
which she shares with her father's other heirs.
IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of Appeals in CA-G.R.
CV No. 22840, dated March 30, 1992, is REVERSED and SET ASIDE, except with respect to the invalidity of
the disposition of the entire house and lot in Cabadbaran, Agusan del Norte. The Decision of the Regional
Trial Court of Quezon City, Branch 94 in Sp. Proc. No. Q-37171, dated November 19, 1988, admitting to
probate the holographic will of decedent Annie Sand, is hereby REINSTATED, with the above qualification
as regards the Cabadbaran property. No costs. SO ORDERED.
EN BANC
G.R. No. L-16749

January 31, 1963

IN THE MATTER OF THE TESTATE ESTATE OF EDWARD E. CHRISTENSEN, DECEASED.

ADOLFO C. AZNAR, Executor and LUCY CHRISTENSEN, Heir of the deceased, Executor and Heirappellees,
vs.
HELEN CHRISTENSEN GARCIA, oppositor-appellant.
M. R. Sotelo for executor and heir-appellees.
Leopoldo M. Abellera and Jovito Salonga for oppositor-appellant.
LABRADOR, J.:
This is an appeal from a decision of the Court of First Instance of Davao, Hon. Vicente N. Cusi, Jr.,
presiding, in Special Proceeding No. 622 of said court, dated September 14, 1949, approving among things
the final accounts of the executor, directing the executor to reimburse Maria Lucy Christensen the amount of
P3,600 paid by her to Helen Christensen Garcia as her legacy, and declaring Maria Lucy Christensen
entitled to the residue of the property to be enjoyed during her lifetime, and in case of death without issue,
one-half of said residue to be payable to Mrs. Carrie Louise C. Borton, etc., in accordance with the
provisions of the will of the testator Edward E. Christensen. The will was executed in Manila on March 5,
1951 and contains the following provisions:
3. I declare ... that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN (now Mrs.
Bernard Daney), who was born in the Philippines about twenty-eight years ago, and who is now
residing at No. 665 Rodger Young Village, Los Angeles, California, U.S.A.
4. I further declare that I now have no living ascendants, and no descendants except my above
named daughter, MARIA LUCY CHRISTENSEN DANEY.
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7. I give, devise and bequeath unto MARIA HELEN CHRISTENSEN, now married to Eduardo
Garcia, about eighteen years of age and who, notwithstanding the fact that she was baptized
Christensen, is not in any way related to me, nor has she been at any time adopted by me, and who,
from all information I have now resides in Egpit, Digos, Davao, Philippines, the sum of THREE
THOUSAND SIX HUNDRED PESOS (P3,600.00), Philippine Currency the same to be deposited in
trust for the said Maria Helen Christensen with the Davao Branch of the Philippine National Bank,
and paid to her at the rate of One Hundred Pesos (P100.00), Philippine Currency per month until the
principal thereof as well as any interest which may have accrued thereon, is exhausted..
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12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said MARIA LUCY
CHRISTENSEN DANEY (Mrs. Bernard Daney), now residing as aforesaid at No. 665 Rodger Young
Village, Los Angeles, California, U.S.A., all the income from the rest, remainder, and residue of my
property and estate, real, personal and/or mixed, of whatsoever kind or character, and wheresoever
situated, of which I may be possessed at my death and which may have come to me from any source
whatsoever, during her lifetime: ....
It is in accordance with the above-quoted provisions that the executor in his final account and project of
partition ratified the payment of only P3,600 to Helen Christensen Garcia and proposed that the residue of
the estate be transferred to his daughter, Maria Lucy Christensen.
Opposition to the approval of the project of partition was filed by Helen Christensen Garcia, insofar as it
deprives her (Helen) of her legitime as an acknowledged natural child, she having been declared by Us in
G.R. Nos. L-11483-84 an acknowledged natural child of the deceased Edward E. Christensen. The legal
grounds of opposition are (a) that the distribution should be governed by the laws of the Philippines, and
(b) that said order of distribution is contrary thereto insofar as it denies to Helen Christensen, one of two
acknowledged natural children, one-half of the estate in full ownership. In amplification of the above
grounds it was alleged that the law that should govern the estate of the deceased Christensen should not be
the internal law of California alone, but the entire law thereof because several foreign elements are involved,
that the forum is the Philippines and even if the case were decided in California, Section 946 of the
California Civil Code, which requires that the domicile of the decedent should apply, should be applicable.
It was also alleged that Maria Helen Christensen having been declared an acknowledged natural child of
the decedent, she is deemed for all purposes legitimate from the time of her birth.
The court below ruled that as Edward E. Christensen was a citizen of the United States and of the State of
California at the time of his death, the successional rights and intrinsic validity of the provisions in his will
are to be governed by the law of California, in accordance with which a testator has the right to dispose of
his property in the way he desires, because the right of absolute dominion over his property is sacred and
inviolable (In re McDaniel's Estate, 77 Cal. Appl. 2d 877, 176 P. 2d 952, and In re Kaufman, 117 Cal. 286, 49
Pac. 192, cited in page 179, Record on Appeal). Oppositor Maria Helen Christensen, through counsel, filed
various motions for reconsideration, but these were denied. Hence, this appeal.
The most important assignments of error are as follows:
I
THE LOWER COURT ERRED IN IGNORING THE DECISION OF THE HONORABLE SUPREME COURT
THAT HELEN IS THE ACKNOWLEDGED NATURAL CHILD OF EDWARD E. CHRISTENSEN AND,
CONSEQUENTLY, IN DEPRIVING HER OF HER JUST SHARE IN THE INHERITANCE.
II
THE LOWER COURT ERRED IN ENTIRELY IGNORING AND/OR FAILING TO RECOGNIZE THE
EXISTENCE OF SEVERAL FACTORS, ELEMENTS AND CIRCUMSTANCES CALLING FOR THE
APPLICATION OF INTERNAL LAW.
III
THE LOWER COURT ERRED IN FAILING TO RECOGNIZE THAT UNDER INTERNATIONAL LAW,
PARTICULARLY UNDER THE RENVOI DOCTRINE, THE INTRINSIC VALIDITY OF THE
TESTAMENTARY DISPOSITION OF THE DISTRIBUTION OF THE ESTATE OF THE DECEASED
EDWARD E. CHRISTENSEN SHOULD BE GOVERNED BY THE LAWS OF THE PHILIPPINES.
IV
THE LOWER COURT ERRED IN NOT DECLARING THAT THE SCHEDULE OF DISTRIBUTION
SUBMITTED BY THE EXECUTOR IS CONTRARY TO THE PHILIPPINE LAWS.
V

THE LOWER COURT ERRED IN NOT DECLARING THAT UNDER THE PHILIPPINE LAWS HELEN
CHRISTENSEN GARCIA IS ENTITLED TO ONE-HALF (1/2) OF THE ESTATE IN FULL OWNERSHIP.
There is no question that Edward E. Christensen was a citizen of the United States and of the State of
California at the time of his death. But there is also no question that at the time of his death he was
domiciled in the Philippines, as witness the following facts admitted by the executor himself in appellee's
brief:
In the proceedings for admission of the will to probate, the facts of record show that the deceased
Edward E. Christensen was born on November 29, 1875 in New York City, N.Y., U.S.A.; his first
arrival in the Philippines, as an appointed school teacher, was on July 1, 1901, on board the U.S.
Army Transport "Sheridan" with Port of Embarkation as the City of San Francisco, in the State of
California, U.S.A. He stayed in the Philippines until 1904.
In December, 1904, Mr. Christensen returned to the United States and stayed there for the following
nine years until 1913, during which time he resided in, and was teaching school in Sacramento,
California.
Mr. Christensen's next arrival in the Philippines was in July of the year 1913. However, in 1928, he
again departed the Philippines for the United States and came back here the following year, 1929.
Some nine years later, in 1938, he again returned to his own country, and came back to the
Philippines the following year, 1939.
Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and
approved by this Honorable Court, without prejudice to the parties adducing other evidence to
prove their case not covered by this stipulation of facts. 1wph1.t
Being an American citizen, Mr. Christensen was interned by the Japanese Military Forces in the
Philippines during World War II. Upon liberation, in April 1945, he left for the United States but
returned to the Philippines in December, 1945. Appellees Collective Exhibits "6", CFI Davao, Sp.
Proc. 622, as Exhibits "AA", "BB" and "CC-Daney"; Exhs. "MM", "MM-l", "MM-2-Daney" and p. 473,
t.s.n., July 21, 1953.)
In April, 1951, Edward E. Christensen returned once more to California shortly after the making of
his last will and testament (now in question herein) which he executed at his lawyers' offices in
Manila on March 5, 1951. He died at the St. Luke's Hospital in the City of Manila on April 30, 1953.
(pp. 2-3)
In arriving at the conclusion that the domicile of the deceased is the Philippines, we are persuaded by the
fact that he was born in New York, migrated to California and resided there for nine years, and since he
came to the Philippines in 1913 he returned to California very rarely and only for short visits (perhaps to
relatives), and considering that he appears never to have owned or acquired a home or properties in that
state, which would indicate that he would ultimately abandon the Philippines and make home in the State
of California.
Sec. 16. Residence is a term used with many shades of meaning from mere temporary presence to the
most permanent abode. Generally, however, it is used to denote something more than mere physical
presence. (Goodrich on Conflict of Laws, p. 29)
As to his citizenship, however, We find that the citizenship that he acquired in California when he resided
in Sacramento, California from 1904 to 1913, was never lost by his stay in the Philippines, for the latter was a
territory of the United States (not a state) until 1946 and the deceased appears to have considered himself as
a citizen of California by the fact that when he executed his will in 1951 he declared that he was a citizen of
that State; so that he appears never to have intended to abandon his California citizenship by acquiring
another. This conclusion is in accordance with the following principle expounded by Goodrich in his
Conflict of Laws.
The terms "'residence" and "domicile" might well be taken to mean the same thing, a place of
permanent abode. But domicile, as has been shown, has acquired a technical meaning. Thus one may
be domiciled in a place where he has never been. And he may reside in a place where he has no
domicile. The man with two homes, between which he divides his time, certainly resides in each
one, while living in it. But if he went on business which would require his presence for several
weeks or months, he might properly be said to have sufficient connection with the place to be called
a resident. It is clear, however, that, if he treated his settlement as continuing only for the particular
business in hand, not giving up his former "home," he could not be a domiciled New Yorker.
Acquisition of a domicile of choice requires the exercise of intention as well as physical presence.
"Residence simply requires bodily presence of an inhabitant in a given place, while domicile requires
bodily presence in that place and also an intention to make it one's domicile." Residence, however, is

a term used with many shades of meaning, from the merest temporary presence to the most
permanent abode, and it is not safe to insist that any one use et the only proper one. (Goodrich, p.
29)
The law that governs the validity of his testamentary dispositions is defined in Article 16 of the Civil Code
of the Philippines, which is as follows:
ART. 16. Real property as well as personal property is subject to the law of the country where it is
situated.
However, intestate and testamentary successions, both with respect to the order of succession and to
the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be
regulated by the national law of the person whose succession is under consideration, whatever may
be the nature of the property and regardless of the country where said property may be found.
The application of this article in the case at bar requires the determination of the meaning of the term
"national law" is used therein.
There is no single American law governing the validity of testamentary provisions in the United States, each
state of the Union having its own private law applicable to its citizens only and in force only within the
state. The "national law" indicated in Article 16 of the Civil Code above quoted can not, therefore, possibly
mean or apply to any general American law. So it can refer to no other than the private law of the State of
California.
The next question is: What is the law in California governing the disposition of personal property? The
decision of the court below, sustains the contention of the executor-appellee that under the California
Probate Code, a testator may dispose of his property by will in the form and manner he desires, citing the
case of Estate of McDaniel, 77 Cal. Appl. 2d 877, 176 P. 2d 952. But appellant invokes the provisions of
Article 946 of the Civil Code of California, which is as follows:
If there is no law to the contrary, in the place where personal property is situated, it is deemed to
follow the person of its owner, and is governed by the law of his domicile.
The existence of this provision is alleged in appellant's opposition and is not denied. We have checked it in
the California Civil Code and it is there. Appellee, on the other hand, relies on the case cited in the decision
and testified to by a witness. (Only the case of Kaufman is correctly cited.) It is argued on executor's behalf
that as the deceased Christensen was a citizen of the State of California, the internal law thereof, which is
that given in the abovecited case, should govern the determination of the validity of the testamentary
provisions of Christensen's will, such law being in force in the State of California of which Christensen was
a citizen. Appellant, on the other hand, insists that Article 946 should be applicable, and in accordance
therewith and following the doctrine of the renvoi, the question of the validity of the testamentary provision
in question should be referred back to the law of the decedent's domicile, which is the Philippines.
The theory of doctrine of renvoi has been defined by various authors, thus:
The problem has been stated in this way: "When the Conflict of Laws rule of the forum refers a jural
matter to a foreign law for decision, is the reference to the purely internal rules of law of the foreign
system; i.e., to the totality of the foreign law minus its Conflict of Laws rules?"
On logic, the solution is not an easy one. The Michigan court chose to accept the renvoi, that is,
applied the Conflict of Laws rule of Illinois which referred the matter back to Michigan law. But
once having determined the the Conflict of Laws principle is the rule looked to, it is difficult to see
why the reference back should not have been to Michigan Conflict of Laws. This would have
resulted in the "endless chain of references" which has so often been criticized be legal writers. The
opponents of the renvoi would have looked merely to the internal law of Illinois, thus rejecting the
renvoi or the reference back. Yet there seems no compelling logical reason why the original reference
should be the internal law rather than to the Conflict of Laws rule. It is true that such a solution
avoids going on a merry-go-round, but those who have accepted the renvoi theory avoid this
inextricabilis circulas by getting off at the second reference and at that point applying internal law.
Perhaps the opponents of the renvoi are a bit more consistent for they look always to internal law as
the rule of reference.
Strangely enough, both the advocates for and the objectors to the renvoi plead that greater uniformity
will result from adoption of their respective views. And still more strange is the fact that the only
way to achieve uniformity in this choice-of-law problem is if in the dispute the two states whose
laws form the legal basis of the litigation disagree as to whether the renvoi should be accepted. If
both reject, or both accept the doctrine, the result of the litigation will vary with the choice of the
forum. In the case stated above, had the Michigan court rejected the renvoi, judgment would have

been against the woman; if the suit had been brought in the Illinois courts, and they too rejected the
renvoi, judgment would be for the woman. The same result would happen, though the courts would
switch with respect to which would hold liability, if both courts accepted the renvoi.
The Restatement accepts the renvoi theory in two instances: where the title to land is in question, and
where the validity of a decree of divorce is challenged. In these cases the Conflict of Laws rule of the
situs of the land, or the domicile of the parties in the divorce case, is applied by the forum, but any
further reference goes only to the internal law. Thus, a person's title to land, recognized by the situs,
will be recognized by every court; and every divorce, valid by the domicile of the parties, will be
valid everywhere. (Goodrich, Conflict of Laws, Sec. 7, pp. 13-14.)
X, a citizen of Massachusetts, dies intestate, domiciled in France, leaving movable property in
Massachusetts, England, and France. The question arises as to how this property is to be distributed
among X's next of kin.
Assume (1) that this question arises in a Massachusetts court. There the rule of the conflict of laws as
to intestate succession to movables calls for an application of the law of the deceased's last domicile.
Since by hypothesis X's last domicile was France, the natural thing for the Massachusetts court to do
would be to turn to French statute of distributions, or whatever corresponds thereto in French law,
and decree a distribution accordingly. An examination of French law, however, would show that if a
French court were called upon to determine how this property should be distributed, it would refer
the distribution to the national law of the deceased, thus applying the Massachusetts statute of
distributions. So on the surface of things the Massachusetts court has open to it alternative course of
action: (a) either to apply the French law is to intestate succession, or (b) to resolve itself into a
French court and apply the Massachusetts statute of distributions, on the assumption that this is
what a French court would do. If it accepts the so-called renvoi doctrine, it will follow the latter
course, thus applying its own law.
This is one type of renvoi. A jural matter is presented which the conflict-of-laws rule of the forum
refers to a foreign law, the conflict-of-laws rule of which, in turn, refers the matter back again to the
law of the forum. This is renvoi in the narrower sense. The German term for this judicial process is
'Ruckverweisung.'" (Harvard Law Review, Vol. 31, pp. 523-571.)
After a decision has been arrived at that a foreign law is to be resorted to as governing a particular
case, the further question may arise: Are the rules as to the conflict of laws contained in such foreign
law also to be resorted to? This is a question which, while it has been considered by the courts in but
a few instances, has been the subject of frequent discussion by textwriters and essayists; and the
doctrine involved has been descriptively designated by them as the "Renvoyer" to send back, or the
"Ruchversweisung", or the "Weiterverweisung", since an affirmative answer to the question
postulated and the operation of the adoption of the foreign law in toto would in many cases result in
returning the main controversy to be decided according to the law of the forum. ... (16 C.J.S. 872.)
Another theory, known as the "doctrine of renvoi", has been advanced. The theory of the doctrine of
renvoi is that the court of the forum, in determining the question before it, must take into account the
whole law of the other jurisdiction, but also its rules as to conflict of laws, and then apply the law to
the actual question which the rules of the other jurisdiction prescribe. This may be the law of the
forum. The doctrine of the renvoi has generally been repudiated by the American authorities. (2 Am.
Jur. 296)
The scope of the theory of renvoi has also been defined and the reasons for its application in a country
explained by Prof. Lorenzen in an article in the Yale Law Journal, Vol. 27, 1917-1918, pp. 529-531. The
pertinent parts of the article are quoted herein below:
The recognition of the renvoi theory implies that the rules of the conflict of laws are to be understood
as incorporating not only the ordinary or internal law of the foreign state or country, but its rules of
the conflict of laws as well. According to this theory 'the law of a country' means the whole of its
law.
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Von Bar presented his views at the meeting of the Institute of International Law, at Neuchatel, in
1900, in the form of the following theses:
(1) Every court shall observe the law of its country as regards the application of foreign laws.
(2) Provided that no express provision to the contrary exists, the court shall respect:

(a) The provisions of a foreign law which disclaims the right to bind its nationals abroad as
regards their personal statute, and desires that said personal statute shall be determined by
the law of the domicile, or even by the law of the place where the act in question occurred.
(b) The decision of two or more foreign systems of law, provided it be certain that one of
them is necessarily competent, which agree in attributing the determination of a question to
the same system of law.
xxx

xxx

xxx

If, for example, the English law directs its judge to distribute the personal estate of an Englishman
who has died domiciled in Belgium in accordance with the law of his domicile, he must first inquire
whether the law of Belgium would distribute personal property upon death in accordance with the
law of domicile, and if he finds that the Belgian law would make the distribution in accordance with
the law of nationality that is the English law he must accept this reference back to his own law.
We note that Article 946 of the California Civil Code is its conflict of laws rule, while the rule applied in In
re Kaufman, Supra, its internal law. If the law on succession and the conflict of laws rules of California are to
be enforced jointly, each in its own intended and appropriate sphere, the principle cited In re Kaufman
should apply to citizens living in the State, but Article 946 should apply to such of its citizens as are not
domiciled in California but in other jurisdictions. The rule laid down of resorting to the law of the domicile
in the determination of matters with foreign element involved is in accord with the general principle of
American law that the domiciliary law should govern in most matters or rights which follow the person of
the owner.
When a man dies leaving personal property in one or more states, and leaves a will directing the
manner of distribution of the property, the law of the state where he was domiciled at the time of his
death will be looked to in deciding legal questions about the will, almost as completely as the law of
situs is consulted in questions about the devise of land. It is logical that, since the domiciliary rules
control devolution of the personal estate in case of intestate succession, the same rules should
determine the validity of an attempted testamentary dispostion of the property. Here, also, it is not
that the domiciliary has effect beyond the borders of the domiciliary state. The rules of the domicile
are recognized as controlling by the Conflict of Laws rules at the situs property, and the reason for
the recognition as in the case of intestate succession, is the general convenience of the doctrine. The
New York court has said on the point: 'The general principle that a dispostiton of a personal
property, valid at the domicile of the owner, is valid anywhere, is one of the universal application. It
had its origin in that international comity which was one of the first fruits of civilization, and it this
age, when business intercourse and the process of accumulating property take but little notice of
boundary lines, the practical wisdom and justice of the rule is more apparent than ever. (Goodrich,
Conflict of Laws, Sec. 164, pp. 442-443.)
Appellees argue that what Article 16 of the Civil Code of the Philippines pointed out as the national law is
the internal law of California. But as above explained the laws of California have prescribed two sets of laws
for its citizens, one for residents therein and another for those domiciled in other jurisdictions. Reason
demands that We should enforce the California internal law prescribed for its citizens residing therein, and
enforce the conflict of laws rules for the citizens domiciled abroad. If we must enforce the law of California
as in comity we are bound to go, as so declared in Article 16 of our Civil Code, then we must enforce the
law of California in accordance with the express mandate thereof and as above explained, i.e., apply the
internal law for residents therein, and its conflict-of-laws rule for those domiciled abroad.
It is argued on appellees' behalf that the clause "if there is no law to the contrary in the place where the
property is situated" in Sec. 946 of the California Civil Code refers to Article 16 of the Civil Code of the
Philippines and that the law to the contrary in the Philippines is the provision in said Article 16 that the
national law of the deceased should govern. This contention can not be sustained. As explained in the
various authorities cited above the national law mentioned in Article 16 of our Civil Code is the law on
conflict of laws in the California Civil Code, i.e., Article 946, which authorizes the reference or return of the
question to the law of the testator's domicile. The conflict of laws rule in California, Article 946, Civil Code,
precisely refers back the case, when a decedent is not domiciled in California, to the law of his domicile, the
Philippines in the case at bar. The court of the domicile can not and should not refer the case back to
California; such action would leave the issue incapable of determination because the case will then be like a
football, tossed back and forth between the two states, between the country of which the decedent was a
citizen and the country of his domicile. The Philippine court must apply its own law as directed in the
conflict of laws rule of the state of the decedent, if the question has to be decided, especially as the
application of the internal law of California provides no legitime for children while the Philippine law, Arts.

887(4) and 894, Civil Code of the Philippines, makes natural children legally acknowledged forced heirs of
the parent recognizing them.
The Philippine cases (In re Estate of Johnson, 39 Phil. 156; Riera vs. Palmaroli, 40 Phil. 105; Miciano vs.
Brimo, 50 Phil. 867; Babcock Templeton vs. Rider Babcock, 52 Phil. 130; and Gibbs vs. Government, 59 Phil.
293.) cited by appellees to support the decision can not possibly apply in the case at bar, for two important
reasons, i.e., the subject in each case does not appear to be a citizen of a state in the United States but with
domicile in the Philippines, and it does not appear in each case that there exists in the state of which the
subject is a citizen, a law similar to or identical with Art. 946 of the California Civil Code.
We therefore find that as the domicile of the deceased Christensen, a citizen of California, is the Philippines,
the validity of the provisions of his will depriving his acknowledged natural child, the appellant, should be
governed by the Philippine Law, the domicile, pursuant to Art. 946 of the Civil Code of California, not by
the internal law of California..
WHEREFORE, the decision appealed from is hereby reversed and the case returned to the lower court with
instructions that the partition be made as the Philippine law on succession provides. Judgment reversed,
with costs against appellees.
EN BANC
G.R. No. L-23678

June 6, 1967

TESTATE ESTATE OF AMOS G. BELLIS, deceased.

PEOPLE'S BANK and TRUST COMPANY, executor.
MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS, oppositors-appellants,
vs.
EDWARD A. BELLIS, ET AL., heirs-appellees.
Vicente R. Macasaet and Jose D. Villena for oppositors appellants.
Paredes, Poblador, Cruz and Nazareno for heirs-appellees E. A. Bellis, et al.
Quijano and Arroyo for heirs-appellees W. S. Bellis, et al.
J. R. Balonkita for appellee People's Bank & Trust Company.
Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman.
BENGZON, J.P., J.:
This is a direct appeal to Us, upon a question purely of law, from an order of the Court of First Instance of
Manila dated April 30, 1964, approving the project of partition filed by the executor in Civil Case No. 37089
therein.1wph1.t
The facts of the case are as follows:
Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the United States." By his first wife,
Mary E. Mallen, whom he divorced, he had five legitimate children: Edward A. Bellis, George Bellis (who
pre-deceased him in infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman; by his second
wife, Violet Kennedy, who survived him, he had three legitimate children: Edwin G. Bellis, Walter S. Bellis
and Dorothy Bellis; and finally, he had three illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis and
Miriam Palma Bellis.
On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that after all
taxes, obligations, and expenses of administration are paid for, his distributable estate should be divided, in
trust, in the following order and manner: (a) $240,000.00 to his first wife, Mary E. Mallen; (b) P120,000.00 to
his three illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis, Miriam Palma Bellis, or P40,000.00 each
and (c) after the foregoing two items have been satisfied, the remainder shall go to his seven surviving
children by his first and second wives, namely: Edward A. Bellis, Henry A. Bellis, Alexander Bellis and
Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis, and Dorothy E. Bellis, in equal shares.1wph1.t
Subsequently, or on July 8, 1958, Amos G. Bellis died a resident of San Antonio, Texas, U.S.A. His will was
admitted to probate in the Court of First Instance of Manila on September 15, 1958.
The People's Bank and Trust Company, as executor of the will, paid all the bequests therein including the
amount of $240,000.00 in the form of shares of stock to Mary E. Mallen and to the three (3) illegitimate
children, Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis, various amounts totalling
P40,000.00 each in satisfaction of their respective legacies, or a total of P120,000.00, which it released from
time to time according as the lower court approved and allowed the various motions or petitions filed by
the latter three requesting partial advances on account of their respective legacies.
On January 8, 1964, preparatory to closing its administration, the executor submitted and filed its
"Executor's Final Account, Report of Administration and Project of Partition" wherein it reported, inter alia,

the satisfaction of the legacy of Mary E. Mallen by the delivery to her of shares of stock amounting to
$240,000.00, and the legacies of Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis in the amount
of P40,000.00 each or a total of P120,000.00. In the project of partition, the executor pursuant to the
"Twelfth" clause of the testator's Last Will and Testament divided the residuary estate into seven equal
portions for the benefit of the testator's seven legitimate children by his first and second marriages.
On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective oppositions to the
project of partition on the ground that they were deprived of their legitimes as illegitimate children and,
therefore, compulsory heirs of the deceased.
Amos Bellis, Jr. interposed no opposition despite notice to him, proof of service of which is evidenced by the
registry receipt submitted on April 27, 1964 by the executor.1
After the parties filed their respective memoranda and other pertinent pleadings, the lower court, on April
30, 1964, issued an order overruling the oppositions and approving the executor's final account, report and
administration and project of partition. Relying upon Art. 16 of the Civil Code, it applied the national law of
the decedent, which in this case is Texas law, which did not provide for legitimes.
Their respective motions for reconsideration having been denied by the lower court on June 11, 1964,
oppositors-appellants appealed to this Court to raise the issue of which law must apply Texas law or
Philippine law.
In this regard, the parties do not submit the case on, nor even discuss, the doctrine of renvoi, applied by this
Court in Aznar v. Christensen Garcia, L-16749, January 31, 1963. Said doctrine is usually pertinent where the
decedent is a national of one country, and a domicile of another. In the present case, it is not disputed that
the decedent was both a national of Texas and a domicile thereof at the time of his death.2 So that even
assuming Texas has a conflict of law rule providing that the domiciliary system (law of the domicile) should
govern, the same would not result in a reference back (renvoi) to Philippine law, but would still refer to
Texas law. Nonetheless, if Texas has a conflicts rule adopting the situs theory (lex rei sitae) calling for the
application of the law of the place where the properties are situated, renvoi would arise, since the properties
here involved are found in the Philippines. In the absence, however, of proof as to the conflict of law rule of
Texas, it should not be presumed different from ours.3 Appellants' 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,
Congress deleted 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.
G.R. No. 108581 December 8, 1999
LOURDES L. DOROTHEO, petitioner,
vs.
COURT OF APPEALS, NILDA D. QUINTANA, for Herself and as Attorney-in-Fact of VICENTE
DOROTHEO and JOSE DOROTHEO, respondents.
YNARES-SANTIAGO, J.:
May a last will and testament admitted to probate but declared intrinsically void in an order that has
become final and executory still be given effect? This is the issue that arose from the following antecedents:
Private respondents were the legitimate children of Alejandro Dorotheo and Aniceta Reyes. The latter died
in 1969 without her estate being settled. Alejandro died thereafter. Sometime in 1977, after Alejandro's
death, petitioner, who claims to have taken care of Alejandro before he died, filed a special proceeding for
the probate of the latter's last will and testament. In 1981, the court issued an order admitting Alejandro's
will to probate. Private respondents did not appeal from said order. In 1983, they filed a "Motion To Declare
The Will Intrinsically Void." The trial court granted the motion and issued an order, the dispositive portion
of which reads:
WHEREFORE, in view of the foregoing, Order is hereby issued declaring Lourdes Legaspi
not the wife of the late Alejandro Dorotheo, the provisions of the last will and testament of
Alejandro Dorotheo as intrinsically void, and declaring the oppositors Vicente Dorotheo, Jose
Dorotheo and Nilda Dorotheo Quintana as the only heirs of the late spouses Alejandro
Dorotheo and Aniceta Reyes, whose respective estates shall be liquidated and distributed
according to the laws on intestacy upon payment of estate and other taxes due to the
government. 1
Petitioner moved for reconsideration arguing that she is entitled to some compensation since she took care
of Alejandro prior to his death although she admitted that they were not married to each other. Upon denial
of her motion for reconsideration, petitioner appealed to the Court of Appeals, but the same was dismissed
for failure to file appellant's brief within the extended period
granted. 2 This dismissal became final and executory on February 3, 1989 and a corresponding entry of
judgment was forthwith issued by the Court of Appeals on May 16, 1989. A writ of execution was issued by
the lower court to implement the final and executory Order. Consequently, private respondents filed several
motions including a motion to compel petitioner to surrender to them the Transfer Certificates of Titles
(TCT) covering the properties of the late Alejandro. When petitioner refused to surrender the TCT's, private
respondents filed a motion for cancellation of said titles and for issuance of new titles in their names.
Petitioner opposed the motion.
An Order was issued on November 29, 1990 by Judge Zain B. Angas setting aside the final and executory
Order dated January 30, 1986, as well as the Order directing the issuance of the writ of execution, on the
ground that the order was merely "interlocutory", hence not final in character. The court added that the
dispositive portion of the said Order even directs the distribution of the estate of the deceased spouses.
Private respondents filed a motion for reconsideration which was denied in an Order dated February 1,
1991. Thus, private respondents filed a petition before the Court of Appeals, which nullified the two
assailed Orders dated November 29, 1990 and February 1, 1991.

Aggrieved, petitioner instituted a petition for review arguing that the case filed by private respondents
before the Court of Appeals was a petition under Rule 65 on the ground of grave abuse of discretion or lack
of jurisdiction. Petitioner contends that in issuing the two assailed orders, Judge Angas cannot be said to
have no jurisdiction because he was particularly designated to hear the case. Petitioner likewise assails the
Order of the Court of Appeals upholding the validity of the January 30, 1986 Order which declared the
intrinsic invalidity of Alejandro's will that was earlier admitted to probate.
Petitioner also filed a motion to reinstate her as executrix of the estate of the late Alejandro and to maintain
the status quo or lease of the premises thereon to third parties. 3 Private respondents opposed the motion on
the ground that petitioner has no interest in the estate since she is not the lawful wife of the late Alejandro.
The petition is without merit. A final and executory decision or order can no longer be disturbed or
reopened no matter how erroneous it may be. In setting aside the January 30, 1986 Order that has attained
finality, the trial court in effect nullified the entry of judgment made by the Court of Appeals. It is well
settled that a lower court cannot reverse or set aside decisions or orders of a superior court, for to do so
would be to negate the hierarchy of courts and nullify the essence of review. It has been ruled that a final
judgment on probated will, albeit erroneous, is binding on the whole world. 4
It has been consistently held that if no appeal is taken in due time from a judgment or order of the trial
court, the same attains finality by mere lapse of time. Thus, the order allowing the will became final and the
question determined by the court in such order can no longer be raised anew, either in the same
proceedings or in a different motion. The matters of due execution of the will and the capacity of the testator
acquired the character of res judicata and cannot again be brought into question, all juridical questions in
connection therewith being for once and forever closed. 5 Such final order makes the will conclusive against
the whole world as to its extrinsic validity and due execution. 6
It should be noted that probate proceedings deals generally with the extrinsic validity of the will sought to
be probated, 7 particularly on three aspects:
n whether the will submitted is indeed, the decedent's last will
and testament;
n compliance with the prescribed formalities for the execution
of wills;
n the testamentary capacity of the testator; 8
n and the due execution of the last will and testament. 9
Under the Civil Code, due execution includes a determination of whether the testator was of sound and
disposing mind at the time of its execution, that he had freely executed the will and was not acting under
duress, fraud, menace or undue influence and that the will is genuine and not a forgery, 10 that he was of the
proper testamentary age and that he is a person not expressly prohibited by law from making a will. 11
The intrinsic validity is another matter and questions regarding the same may still be raised even after the
will has been authenticated. 12 Thus, it does not necessarily follow that an extrinsically valid last will and
testament is always intrinsically valid. Even if the will was validly executed, if the testator provides for
dispositions that deprives or impairs the lawful heirs of their legitime or rightful inheritance according to
the laws on succession, 13 the unlawful provisions/dispositions thereof cannot be given effect. This is
specially so when the courts had already determined in a final and executory decision that the will is
intrinsically void. Such determination having attained that character of finality is binding on this Court
which will no longer be disturbed. Not that this Court finds the will to be intrinsically valid, but that a final
and executory decision of which the party had the opportunity to challenge before the higher tribunals must
stand and should no longer be reevaluated. Failure to avail of the remedies provided by law constitutes
waiver. And if the party does not avail of other remedies despite its belief that it was aggrieved by a
decision or court action, then it is deemed to have fully agreed and is satisfied with the decision or order. As
early as 1918, it has been declared that public policy and sound practice demand that, at the risk of
occasional errors, judgments of courts must at some point of time fixed by law 14 become final otherwise
there will be no end to litigation. Interes rei publicae ut finis sit litium the very object of which the courts
were constituted was to put an end to controversies. 15 To fulfill this purpose and to do so speedily, certain
time limits, more or less arbitrary, have to be set up to spur on the slothful. 16 The only instance where a
party interested in a probate proceeding may have a final liquidation set aside is when he is left out by
reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence,
17 which circumstances do not concur herein.
Petitioner was privy to the suit calling for the declaration of the intrinsic invalidity of the will, as she
precisely appealed from an unfavorable order therefrom. Although the final and executory Order of January
30, 1986 wherein private respondents were declared as the only heirs do not bind those who are not parties

thereto such as the alleged illegitimate son of the testator, the same constitutes res judicata with respect to
those who were parties to the probate proceedings. Petitioner cannot again raise those matters anew for
relitigation otherwise that would amount to forum-shopping. It should be remembered that forum
shopping also occurs when the same issue had already been resolved adversely by some other court. 18 It is
clear from the executory order that the estates of Alejandro and his spouse should be distributed according
to the laws of intestate succession.
Petitioner posits that the January 30, 1986 Order is merely interlocutory, hence it can still be set aside by the
trial court. In support thereof, petitioner argues that "an order merely declaring who are heirs and the
shares to which set of heirs is entitled cannot be the basis of execution to require delivery of shares from one
person to another particularly when no project of partition has been filed." 19 The trial court declared in the
January 30, 1986 Order that petitioner is not the legal wife of Alejandro, whose only heirs are his three
legitimate children (petitioners herein), and at the same time it nullified the will. But it should be noted that
in the same Order, the trial court also said that the estate of the late spouses be distributed according to the
laws of intestacy. Accordingly, it has no option but to implement that order of intestate distribution and not
to reopen and again re-examine the intrinsic provisions of the same will.
It can be clearly inferred from Article 960 of the Civil Code, on the law of successional rights that testacy is
preferred to intestacy. 20 But before there could be testate distribution, the will must pass the scrutinizing
test and safeguards provided by law considering that the deceased testator is no longer available to prove
the voluntariness of his actions, aside from the fact that the transfer of the estate is usually onerous in nature
and that no one is presumed to give Nemo praesumitur donare. 21 No intestate distribution of the estate can
be done until and unless the will had failed to pass both its extrinsic and intrinsic validity. If the will is
extrinsically void, the rules of intestacy apply regardless of the intrinsic validity thereof. If it is extrinsically
valid, the next test is to determine its intrinsic validity that is whether the provisions of the will are valid
according to the laws of succession. In this case, the court had ruled that the will of Alejandro was
extrinsically valid but the intrinsic provisions thereof were void. Thus, the rules of intestacy apply as
correctly held by the trial court.
Furthermore, Alejandro's disposition in his will of the alleged share in the conjugal properties of his late
spouse, whom he described as his "only beloved wife", is not a valid reason to reverse a final and executory
order. Testamentary dispositions of properties not belonging exclusively to the testator or properties which
are part of the conjugal regime cannot be given effect. Matters with respect to who owns the properties that
were disposed of by Alejandro in the void will may still be properly ventilated and determined in the
intestate proceedings for the settlement of his and that of his late spouse's estate.
Petitioner's motion for appointment as administratrix is rendered moot considering that she was not
married to the late Alejandro and, therefore, is not an heir.
WHEREFORE, the petition is DENIED and the decision appealed from is AFFIRMED. SO ORDERED.
G.R. No. 122880

April 12, 2006

FELIX AZUELA, Petitioner,

vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO G. CASTILLO,
Respondents.
DECISION
TINGA, J.:
The core of this petition is a highly defective notarial will, purportedly executed by Eugenia E. Igsolo
(decedent), who died on 16 December 1982 at the age of 80. In refusing to give legal recognition to the due
execution of this document, the Court is provided the opportunity to assert a few important doctrinal rules
in the execution of notarial wills, all self-evident in view of Articles 805 and 806 of the Civil Code.
A will whose attestation clause does not contain the number of pages on which the will is written is
fatally defective. A will whose attestation clause is not signed by the instrumental witnesses is fatally
defective. And perhaps most importantly, a will which does not contain an acknowledgment, but a mere
jurat, is fatally defective. Any one of these defects is sufficient to deny probate. A notarial will with all
three defects is just aching for judicial rejection.
There is a distinct and consequential reason the Civil Code provides a comprehensive catalog of imperatives
for the proper execution of a notarial will. Full and faithful compliance with all the detailed requisites under
Article 805 of the Code leave little room for doubt as to the validity in the due execution of the notarial will.
Article 806 likewise imposes another safeguard to the validity of notarial wills that they be

acknowledged before a notary public by the testator and the witnesses. A notarial will executed with
indifference to these two codal provisions opens itself to nagging questions as to its legitimacy.
The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial Court (RTC) of
Manila. The petition filed by petitioner Felix Azuela sought to admit to probate the notarial will of Eugenia
E. Igsolo, which was notarized on 10 June 1981. Petitioner is the son of the cousin of the decedent.
The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full:
HULING HABILIN NI EUGENIA E. IGSOLO
SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila, pitongput siyam (79) na
gulang, nasa hustong pagi-isip, pag-unawa at memoria ay nag-hahayag na ito na ang aking huling habilin
at testamento, at binabali wala ko lahat ang naunang ginawang habilin o testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong sa kaugalian at
patakaran ng simbahang katoliko at ang taga-pag-ingat (Executor) ng habiling ito ay magtatayo ng
bantayog upang silbing ala-ala sa akin ng aking pamilya at kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking pamangkin na si Felix
Azuela, na siyang nag-alaga sa akin sa mahabang panahon, yaong mga bahay na nakatirik sa lote numero
28, Block 24 at nakapangalan sa Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng karapatan sa
bahay na nakatirik sa inoopahan kong lote, numero 43, Block 24 na pag-aari ng Pechaten Corporation.
Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at lupa na nasa 500 San Diego St., Lot 42,
Block 24, Sampaloc, Manila kay Felix Azuela at ang pagkakaloob kong ito ay walang pasubalit at
kondiciones;
Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling habiling ito at
kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981.
(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)
PATUNAY NG MGA SAKSI
Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni
Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay nilagdaan
ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawat dahon,
sa harap ng lahat at bawat sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing
tagapagmana at sa harap ng lahat at bawat isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang
panig ng lahat at bawat dahon ng kasulatan ito.
EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.
QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981
LAMBERTO C. LEAO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981
JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng Maynila.
(Sgd.)
PETRONIO Y. BAUTISTA

Doc. No. 1232 ; NOTARIO PUBLIKO

Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-81
The three named witnesses to the will affixed their signatures on the left-hand margin of both pages of the
will, but not at the bottom of the attestation clause.
The probate petition adverted to only two (2) heirs, legatees and devisees of the decedent, namely:
petitioner himself, and one Irene Lynn Igsolo, who was alleged to have resided abroad. Petitioner prayed
that the will be allowed, and that letters testamentary be issued to the designated executor, Vart Prague.
The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented herself as the
attorney-in-fact of "the 12 legitimate heirs" of the decedent.2 Geralda Castillo claimed that the will is a
forgery, and that the true purpose of its emergence was so it could be utilized as a defense in several court
cases filed by oppositor against petitioner, particularly for forcible entry and usurpation of real property, all
centering on petitioners right to occupy the properties of the decedent. 3 It also asserted that contrary to the
representations of petitioner, the decedent was actually survived by 12 legitimate heirs, namely her
grandchildren, who were then residing abroad. Per records, it was subsequently alleged that decedent was
the widow of Bonifacio Igsolo, who died in 1965,4 and the mother of a legitimate child, Asuncion E. Igsolo,
who predeceased her mother by three (3) months.5
Oppositor Geralda Castillo also argued that the will was not executed and attested to in accordance with
law. She pointed out that decedents signature did not appear on the second page of the will, and the will
was not properly acknowledged. These twin arguments are among the central matters to this petition.
After due trial, the RTC admitted the will to probate, in an Order dated 10 August 1992.6 The RTC favorably
took into account the testimony of the three (3) witnesses to the will, Quirino Agrava, Lamberto Leano, and
Juanito Estrada. The RTC also called to fore "the modern tendency in respect to the formalities in the
execution of a will x x x with the end in view of giving the testator more freedom in expressing his last
wishes;"7 and from this perspective, rebutted oppositors arguments that the will was not properly executed
and attested to in accordance with law.
After a careful examination of the will and consideration of the testimonies of the subscribing and attesting
witnesses, and having in mind the modern tendency in respect to the formalities in the execution of a will,
i.e., the liberalization of the interpretation of the law on the formal requirements of a will with the end in
view of giving the testator more freedom in expressing his last wishes, this Court is persuaded to rule that
the will in question is authentic and had been executed by the testatrix in accordance with law.
On the issue of lack of acknowledgement, this Court has noted that at the end of the will after the signature
of the testatrix, the following statement is made under the sub-title, "Patunay Ng Mga Saksi":
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni
Eugenia N. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayong ika-10 ng Hunyo 1981, ay
nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at
bawat dahon, sa harap ng lahat at bawat sa amin, at kami namang mga saksi ay lumagda sa harap ng
nasabing tagapagmana at sa harap ng lahat at bawat isa sa amin, sa ilalim ng nasabing kasulatan at sa
kaliwang panig ng lahat at bawat dahon ng kasulatan ito."
The aforequoted declaration comprises the attestation clause and the acknowledgement and is considered
by this Court as a substantial compliance with the requirements of the law.
On the oppositors contention that the attestation clause was not signed by the subscribing witnesses at the
bottom thereof, this Court is of the view that the signing by the subscribing witnesses on the left margin of
the second page of the will containing the attestation clause and acknowledgment, instead of at the bottom
thereof, substantially satisfies the purpose of identification and attestation of the will.
With regard to the oppositors argument that the will was not numbered correlatively in letters placed on
upper part of each page and that the attestation did not state the number of pages thereof, it is worthy to
note that the will is composed of only two pages. The first page contains the entire text of the testamentary
dispositions, and the second page contains the last portion of the attestation clause and acknowledgement.
Such being so, the defects are not of a serious nature as to invalidate the will. For the same reason, the
failure of the testatrix to affix her signature on the left margin of the second page, which contains only the
last portion of the attestation clause and acknowledgment is not a fatal defect.
As regards the oppositors assertion that the signature of the testatrix on the will is a forgery, the testimonies
of the three subscribing witnesses to the will are convincing enough to establish the genuineness of the
signature of the testatrix and the due execution of the will. 8

The Order was appealed to the Court of Appeals by Ernesto Castillo, who had substituted his since
deceased mother-in-law, Geralda Castillo. In a Decision dated 17 August 1995, the Court of Appeals
reversed the trial court and ordered the dismissal of the petition for probate. 9 The Court of Appeals noted
that the attestation clause failed to state the number of pages used in the will, thus rendering the will void
and undeserving of probate.10
Hence, the present petition.
Petitioner argues that the requirement under Article 805 of the Civil Code that "the number of pages used in
a notarial will be stated in the attestation clause" is merely directory, rather than mandatory, and thus
susceptible to what he termed as "the substantial compliance rule."11
The solution to this case calls for the application of Articles 805 and 806 of the Civil Code, which we
replicate in full.
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator
himself or by the testator's name written by some other person in his presence, and by his express direction,
and attested and subscribed by three or more credible witnesses in the presence of the testator and of one
another.
The testator or the person requested by him to write his name and the instrumental witnesses of the will,
shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the
pages shall be numbered correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and the fact that the
testator signed the will and every page thereof, or caused some other person to write his name, under his
express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the
will and all the pages thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.
Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The
notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of
Court.
The appellate court, in its Decision, considered only one defect, the failure of the attestation clause to state
the number of pages of the will. But an examination of the will itself reveals several more deficiencies.
As admitted by petitioner himself, the attestation clause fails to state the number of pages of the will. 12
There was an incomplete attempt to comply with this requisite, a space having been allotted for the
insertion of the number of pages in the attestation clause. Yet the blank was never filled in; hence, the
requisite was left uncomplied with.
The Court of Appeals pounced on this defect in reversing the trial court, citing in the process Uy Coque v.
Navas L. Sioca13 and In re: Will of Andrada.14 In Uy Coque, the Court noted that among the defects of the will in
question was the failure of the attestation clause to state the number of pages contained in the will. 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 in Singson and Taboada. However, in this case, there could have
been no substantial compliance with the requirements under Article 805 since there is no statement in the
attestation clause or anywhere in the will itself as to the number of pages which comprise the will.
At the same time, Article 809 should not deviate from the need to comply with the formal requirements as
enumerated under Article 805. Whatever the inclinations of the members of the Code Commission in
incorporating Article 805, the fact remains that they saw fit to prescribe substantially the same formal
requisites as enumerated in Section 618 of the Code of Civil Procedure, convinced that these remained
effective safeguards against the forgery or intercalation of notarial wills.34 Compliance with these
requirements, however picayune in impression, affords the public a high degree of comfort that the testator
himself or herself had decided to convey property post mortem in the manner established in the will.35 The
transcendent legislative intent, even as expressed in the cited comments of the Code Commission, is for
the fruition of the testators incontestable desires, and not for the indulgent admission of wills to
probate.
The Court could thus end here and affirm the Court of Appeals. However, an examination of the will itself
reveals a couple of even more critical defects that should necessarily lead to its rejection.
For one, the attestation clause was not signed by the instrumental witnesses. While the signatures of the
instrumental witnesses appear on the left-hand margin of the will, they do not appear at the bottom of the
attestation clause which after all consists of their averments before the notary public.
Cagro v. Cagro36 is material on this point. As in this case, "the signatures of the three witnesses to the will do
not appear at the bottom of the attestation clause, although the page containing the same is signed by the
witnesses on the left-hand margin."37 While three (3) Justices38 considered the signature requirement had
been substantially complied with, a majority of six (6), speaking through Chief Justice Paras, ruled that the
attestation clause had not been duly signed, rendering the will fatally defective.

There is no question that the signatures of the three witnesses to the will do not appear at the bottom of the
attestation clause, although the page containing the same is signed by the witnesses on the left-hand
margin.
We are of the opinion that the position taken by the appellant is correct. The attestation clause is "a
memorandum of the facts attending the execution of the will" required by law to be made by the attesting
witnesses, and it must necessarily bear their signatures. An unsigned attestation clause cannot be
considered as an act of the witnesses, since the omission of their signatures at the bottom thereof negatives
their participation.
The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin conform
substantially to the law and may be deemed as their signatures to the attestation clause. This is untenable,
because said signatures are in compliance with the legal mandate that the will be signed on the left-hand
margin of all its pages. If an attestation clause not signed by the three witnesses at the bottom thereof, be
admitted as sufficient, it would be easy to add such clause to a will on a subsequent occasion and in the
absence of the testator and any or all of the witnesses. 39
The Court today reiterates the continued efficacy of Cagro. Article 805 particularly segregates the
requirement that the instrumental witnesses sign each page of the will, from the requisite that the will be
"attested and subscribed by [the instrumental witnesses]." The respective intents behind these two classes of
signature are distinct from each other. The signatures on the left-hand corner of every page signify, among
others, that the witnesses are aware that the page they are signing forms part of the will. On the other hand,
the signatures to the attestation clause establish that the witnesses are referring to the statements contained
in the attestation clause itself. Indeed, the attestation clause is separate and apart from the disposition of the
will. An unsigned attestation clause results in an unattested will. Even if the instrumental witnesses signed
the left-hand margin of the page containing the unsigned attestation clause, such signatures cannot
demonstrate these witnesses undertakings in the clause, since the signatures that do appear on the page
were directed towards a wholly different avowal.
The Court may be more charitably disposed had the witnesses in this case signed the attestation clause
itself, but not the left-hand margin of the page containing such clause. Without diminishing the value of the
instrumental witnesses signatures on each and every page, the fact must be noted that it is the attestation
clause which contains the utterances reduced into writing of the testamentary witnesses themselves. It is the
witnesses, and not the testator, who are required under Article 805 to state the number of pages used upon
which the will is written; the fact that the testator had signed the will and every page thereof; and that they
witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.
The only proof in the will that the witnesses have stated these elemental facts would be their signatures on
the attestation clause.
Thus, the subject will cannot be considered to have been validly attested to by the instrumental witnesses, as
they failed to sign the attestation clause.
Yet, there is another fatal defect to the will on which the denial of this petition should also hinge. The
requirement under Article 806 that "every will must be acknowledged before a notary public by the testator
and the witnesses" has also not been complied with. The importance of this requirement is highlighted by
the fact that it had been segregated from the other requirements under Article 805 and entrusted into a
separate provision, Article 806. The non-observance of Article 806 in this case is equally as critical as the
other cited flaws in compliance with Article 805, and should be treated as of equivalent import.
In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote "Nilagdaan ko at ninotario ko
ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila."40 By no manner of contemplation can those
words be construed as an acknowledgment. An acknowledgment is the act of one who has executed a deed
in going before some competent officer or court and declaring it to be his act or deed. 41 It involves an extra
step undertaken whereby the signor actually declares to the notary that the executor of a document has
attested to the notary that the same is his/her own free act and deed.
It might be possible to construe the averment as a jurat, even though it does not hew to the usual language
thereof. A jurat is that part of an affidavit where the notary certifies that before him/her, the document was
subscribed and sworn to by the executor. 42 Ordinarily, the language of the jurat should avow that the
document was subscribed and sworn before the notary public, while in this case, the notary public averred
that he himself "signed and notarized" the document. Possibly though, the word "ninotario" or "notarized"
encompasses the signing of and swearing in of the executors of the document, which in this case would
involve the decedent and the instrumental witnesses.
Yet even if we consider what was affixed by the notary public as a jurat, the will would nonetheless remain
invalid, as the express requirement of Article 806 is that the will be "acknowledged", and not merely

subscribed and sworn to. The will does not present any textual proof, much less one under oath, that the
decedent and the instrumental witnesses executed or signed the will as their own free act or deed. The
acknowledgment made in a will provides for another all-important legal safeguard against spurious wills or
those made beyond the free consent of the testator. An acknowledgement is not an empty meaningless act. 43
The acknowledgment coerces the testator and the instrumental witnesses to declare before an officer of the
law that they had executed and subscribed to the will as their own free act or deed. Such declaration is
under oath and under pain of perjury, thus allowing for the criminal prosecution of persons who participate
in the execution of spurious wills, or those executed without the free consent of the testator. It also provides
a further degree of assurance that the testator is of certain mindset in making the testamentary dispositions
to those persons he/she had designated in the will.
It may not have been said before, but we can assert the rule, self-evident as it is under Article 806. A notarial
will that is not acknowledged before a notary public by the testator and the witnesses is fatally defective,
even if it is subscribed and sworn to before a notary public.
There are two other requirements under Article 805 which were not fully satisfied by the will in question.
We need not discuss them at length, as they are no longer material to the
disposition of this case. The provision requires that the testator and the instrumental witnesses sign each
and every page of the will on the left margin, except the last; and that all the pages shall be numbered
correlatively in letters placed on the upper part of each page. In this case, the decedent, unlike the witnesses,
failed to sign both pages of the will on the left margin, her only signature appearing at the so-called "logical
end"44 of the will on its first page. Also, the will itself is not numbered correlatively in letters on each page,
but instead numbered with Arabic numerals. There is a line of thought that has disabused the notion that
these two requirements be construed as mandatory. 45 Taken in isolation, these omissions, by themselves,
may not be sufficient to deny probate to a will. Yet even as these omissions are not decisive to the
adjudication of this case, they need not be dwelt on, though indicative as they may be of a general lack of
due regard for the requirements under Article 805 by whoever executed the will.
All told, the string of mortal defects which the will in question suffers from makes the probate denial
inexorable.
WHEREFORE, the petition is DENIED. Costs against petitioner. SO ORDERED.
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. 5 Petitioner, 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. 76714 June 2, 1994
SALUD TEODORO VDA. DE PEREZ, petitioner,
vs.
HON. ZOTICO A. TOLETE in his capacity as Presiding Judge, Branch 18, RTC, Bulacan, respondent.
Natividad T. Perez for petitioner.
Benedicto T. Librojo for private respondents.
QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of Court to set aside the Order dated
November 19, 1986 of the Regional Trial Court, Branch 18, Bulacan presided by respondent Judge Zotico A.
Tolete, in Special Proceedings No. 1793-M.
We grant the petition.
II
Dr. Jose F. Cunanan and his wife, Dr. Evelyn Perez-Cunanan, who became American citizens, established a
successful medical practice in New York, U.S.A. The Cunanans lived at No. 2896 Citation Drive, Pompey,
Syracuse, New York, with their children, Jocelyn, 18; Jacqueline, 16; and Josephine, 14.
On August 23, 1979, Dr. Cunanan executed a last will and testament, bequeathing to his wife "all the
remainder" of his real and personal property at the time of his death "wheresoever situated" (Rollo, p. 35). In
the event he would survive his wife, he bequeathed all his property to his children and grandchildren with
Dr. Rafael G. Cunanan, Jr. as trustee. He appointed his wife as executrix of his last will and testament and
Dr. Rafael G. Cunanan, Jr. as substitute executor. Article VIII of his will states:
If my wife, EVELYN PEREZ-CUNANAN, and I shall die under such circumstances that there
is not sufficient evidence to determine the order of our deaths, then it shall be presumed that
I predeceased her, and my estate shall be administered and distributed, in all respects, in
accordance with such presumption (Rollo, p. 41).
Four days later, on August 27, Dr. Evelyn P. Cunanan executed her own last will and testament containing
the same provisions as that of the will of her husband. Article VIII of her will states:
If my husband, JOSE F. CUNANAN, and I shall die under such circumstances that there is
not sufficient evidence to determine the order of our deaths, then it shall be presumed that he
predeceased me, and my estate shall be administered and distributed in all respects, in
accordance with such presumption. (Rollo, p. 31).
On January 9, 1982, Dr. Cunanan and his entire family perished when they were trapped by fire that gutted
their home. Thereafter, Dr. Rafael G. Cunanan, Jr. as trustee and substitute executor of the two wills, filed
separate proceedings for the probate thereof with the Surrogate Court of the County of Onondaga, New
York. On April 7, these two wills were admitted to probate and letters testamentary were issued in his
favor.

On February 21, 1983, Salud Teodoro Perez, the mother of Dr. Evelyn P. Cunanan, and petitioner herein,
filed with the Regional P. Cunanan, and petitioner herein, filed with the Regional Trial Court, Malolos,
Bulacan a petition for the reprobate of the two bills ancillary to the probate proceedings in New York. She
also asked that she be appointed the special administratrix of the estate of the deceased couple consisting
primarily of a farm land in San Miguel, Bulacan.
On March 9, the Regional Trial Court, Branch 16, Malolos, Bulacan, presided by Judge Gualberto J. de la
Llana, issued an order, directing the issuance of letters of special administration in favor of petitioner upon
her filing of a P10,000.00 bond. The following day, petitioner posted the bond and took her oath as special
administration.
As her first act of administration, petitioner filed a motion, praying that the Philippine Life Insurance
Company be directed to deliver the proceeds in the amount of P50,000.00 of the life insurance policy taken
by Dr. Jose F. Cunanan with Dr. Evelyn Perez-Cunanan and their daughter Jocelyn as beneficiaries. The trial
court granted the motion.
Counsel for the Philippine American Life Insurance Company then filed a manifestation, stating that said
company then filed a manifestation, stating that said company had delivered to petitioner the amount of
P49,765.85, representing the proceeds of the life insurance policy of Dr. Jose F. Cunanan.
In a motion dated May 19, 1983, petitioner asked that Dr. Rafael Cunanan, Sr. be ordered to deliver to her a
Philippine Trust Company passbook with P25,594.00 in savings deposit, and the Family Savings Bank time
deposit certificates in the total amount of P12,412.52.
On May 31, Atty. Federico Alday filed a notice of appearance as counsel for the heirs of Dr. Jose F. Cunanan,
namely, Dr. Rafael Cunanan, Sr., Priscilla Cunanan Bautista, Lydia Cunanan Ignacio, Felipe F. Cunanan and
Loreto Cunanan Concepcion (Cunanan heirs). He also manifested that before receiving petitioner's motion
of May 19, 1983, his clients were unaware of the filing of the testate estate case and therefore, "in the interest
of simple fair play," they should be notified of the proceedings (Records, p. 110). He prayed for deferment of
the hearing on the motions of May 19, 1983.
Petitioner then filed a counter manifestation dated June 13, 1983, asserting: (1) that the "Cunanan collaterals
are neither heirs nor creditors of the late Dr. Jose F. Cunanan" and therefore, they had "no legal or
proprietary interests to protect" and "no right to intervene"; (2) that the wills of Dr. Jose F. Cunanan and Dr.
Evelyn Perez-Cunanan, being American citizens, were executed in accordance with the solemnities and
formalities of New York laws, and produced "effects in this jurisdiction in accordance with Art. 16 in
relation to Art. 816 of the Civil Code"; (3) that under Article VIII of the two wills, it was presumed that the
husband predeceased the wife; and (4) that "the Cunanan collaterals are neither distributees, legatees or
beneficiaries, much less, heirs as heirship is only by institution" under a will or by operation of the law of
New York (Records, pp. 112-113).
On June 23, the probate court granted petitioner's motion of May 19, 1983. However, on July 21, the
Cunanan heirs filed a motion to nullify the proceedings and to set aside the appointment of, or to disqualify,
petitioner as special administratrix of the estates of Dr. Jose F. Cunanan and Dr. Evelyn Perez-Cunanan. The
motion stated: (1) that being the "brothers and sisters and the legal and surviving heirs" of Dr. Jose F.
Cunanan, they had been "deliberately excluded" in the petition for the probate of the separate wills of the
Cunanan spouses thereby misleading the Bulacan court to believe that petitioner was the sole heir of the
spouses; that such "misrepresentation" deprived them of their right to "due process in violation of Section 4,
Rule 76 of the Revised Rules of Court; (2) that Dr. Rafael G. Cunanan, Jr., the executor of the estate of the
Cunanan spouses, was likewise not notified of the hearings in the Bulacan court; (3) that the
"misrepresentation and concealment committed by" petitioner rendered her unfit to be a special
administratrix; (4) that Dr. Rafael G. Cunanan, Jr. had, by virtue of a verified power of attorney, authorized
his father,
Dr. Rafael Cunanan, Sr., to be his attorney-in-fact; and (5) that Dr. Rafael Cunanan, Sr. is qualified to be a
regular administrator "as practically all of the subject estate in the Philippines belongs to their brother, Dr.
Jose F. Cunanan" (Records, pp. 118-122). Hence, they prayed: (1) that the proceedings in the case be declared
null and void; (2) that the appointment of petitioner as special administratrix be set aside; and (3) that Dr.
Rafael Cunanan, Sr. be appointed the regular administrator of the estate of the deceased spouses.
Thereafter, the Cunanan heirs filed a motion requiring petitioner to submit an inventory or accounting of all
monies received by her in trust for the estate.
In her opposition, petitioner asserted: (1) that she was the "sole and only heir" of her daughter, Dr. Evelyn
Perez-Cunanan to the exclusion of the "Cunanan collaterals"; hence they were complete strangers to the
proceedings and were not entitled to notice; (2) that she could not have "concealed" the name and address of
Dr. Rafael G. Cunanan, Jr. because his name was prominently mentioned not only in the two wills but also

in the decrees of the American surrogate court; (3) that the rule applicable to the case is Rule 77, not Rule 76,
because it involved the allowance of wills proved outside of the Philippines and that nowhere in Section 2
of Rule 77 is there a mention of notice being given to the executor who, by the same provision, should
himself file the necessary ancillary proceedings in this country; (4) that even if the Bulacan estate came from
the "capital" of Dr. Jose F. Cunanan, he had willed all his worldly goods to his wife and nothing to his
brothers and sisters; and (5) that Dr. Rafael G. Cunanan, Jr. had unlawfully disbursed $215,000.00 to the
Cunanan heirs, misappropriated $15,000.00 for himself and irregularly assigned assets of the estates to his
American lawyer (Records, pp. 151-160).
In their reply, the Cunanan heirs stressed that on November 24, 1982, petitioner and the Cunanan heirs had
entered into an agreement in the United States "to settle and divide equally the estates," and that under
Section 2 of Rule 77 the "court shall fix a time and place for the hearing and cause notice thereof to be given
as in case of an original will presented for allowance" (Records, pp. 184-185).
Petitioner asked that Dr. Rafael G. Cunanan, Jr. be cited for contempt of court for failure to comply with the
Order of June 23, 1983 and for appropriating money of the estate for his own benefit. She also alleged that
she had impugned the agreement of November 24, 1982 before the Surrogate Court of Onondaga, New York
which rendered a decision on April 13, 1983, finding that "all assets are payable to Dr. Evelyn P. Cunanans
executor to be then distributed pursuant to EPTL4-1.1 subd [a] par [4]" (Rollo, p. 52).
On their part, the Cunanan heirs replied that petitioner was estopped from claiming that they were heirs by
the agreement to divide equally the estates. They asserted that by virtue of Section 2 of Rule 77 of the Rules
of Court, the provisions of Sections 3, 4 and 5 of Rule 76 on the requirement of notice to all heirs, executors,
devisees and legatees must be complied with. They reiterated their prayer: (1) that the proceedings in the
case be nullified; (2) that petitioner be disqualified as special administratrix; (3) that she be ordered to
submit an inventory of all goods, chattels and monies which she had received and to surrender the same to
the court; and (4) that Dr. Rafael Cunanan, Sr. be appointed the regular administrator.
Petitioner filed a rejoinder, stating that in violation of the April 13, 1983 decision of the American court Dr.
Rafael G. Cunanan, Jr. made "unauthorized disbursements from the estates as early as July 7, 1982"
(Records, p. 231). Thereafter, petitioner moved for the suspension of the proceedings as she had "to attend to
the settlement proceedings" of the estate of the Cunanan spouses in New York (Records, p. 242). The
Cunanans heirs opposed this motion and filed a manifestation, stating that petitioner had received
$215,000.00 "from the Surrogates Court as part of legacy" based on the aforesaid agreement of November
24, 1982 (Records, p. 248).
On February 21, 1984, Judge de la Llana issued an order, disallowing the reprobate of the two wills,
recalling the appointment of petitioner as special administratrix, requiring the submission of petitioner of an
inventory of the property received by her as special administratrix and declaring all pending incidents moot
and academic. Judge de la Llana reasoned out that petitioner failed to prove the law of New York on
procedure and allowance of wills and the court had no way of telling whether the wills were executed in
accordance with the law of New York. In the absence of such evidence, the presumption is that the law of
succession of the foreign country is the same as the law of the Philippines. However, he noted, that there
were only two witnesses to the wills of the Cunanan spouses and the Philippine law requires three
witnesses and that the wills were not signed on each and every page, a requirement of the Philippine law.
On August 27, 1985, petitioner filed a motion for reconsideration of the Order dated February 21, 1984,
where she had sufficiently proven the applicable laws of New York governing the execution of last wills
and testaments.
On the same day, Judge de la Llana issued another order, denying the motion of petitioner for the
suspension of the proceedings but gave her 15 days upon arrival in the country within which to act on the
other order issued that same day. Contending that the second portion of the second order left its finality to
the discretion of counsel for petitioner, the Cunanans filed a motion for the reconsideration of the
objectionable portion of the said order so that it would conform with the pertinent provisions of the
Judiciary Reorganization Act of 1980 and the Interim Rules of Court.
On April 30, 1985, the respondent Judge of Branch 18 of the Regional Trial Court, Malolos, to which the
reprobate case was reassigned, issued an order stating that "(W)hen the last will and testament . . . was
denied probate," the case was terminated and therefore all orders theretofore issued should be given
finality. The same Order amended the February 21, 1984 Order by requiring petitioner to turn over to the
estate the inventoried property. It considered the proceedings for all intents and purposes, closed (Records,
p. 302).
On August 12, petitioner filed a motion to resume proceedings on account of the final settlement and
termination of the probate cases in New York. Three days later, petitioner filed a motion praying for the

reconsideration of the Order of April 30, 1985 on the strength of the February 21, 1984 Order granting her a
period of 15 days upon arrival in the country within which to act on the denial of probate of the wills of the
Cunanan spouses. On August 19, respondent Judge granted the motion and reconsidered the Order of April
30, 1985.
On August 29, counsel for petitioner, who happens to be her daughter, Natividad, filed a motion praying
that since petitioner was ailing in Fort Lee, New Jersey, U.S.A. and therefore incapacitated to act as special
administratrix, she (the counsel) should be named substitute special administratrix. She also filed a motion
for the reconsideration of the Order of February 21, 1984, denying probate to the wills of the Cunanan
spouses, alleging that respondent Judge "failed to appreciate the significant probative value of the exhibits .
. . which all refer to the offer and admission to probate of the last wills of the Cunanan spouses including all
procedures undertaken and decrees issued in connection with the said probate" (Records, pp. 313-323).
Thereafter, the Cunanans heirs filed a motion for reconsideration of the Order of August 19, 1985, alleging
lack of notice to their counsel.
On March 31, 1986, respondent Judge to which the case was reassigned denied the motion for
reconsideration holding that the documents submitted by petitioner proved "that the wills of the testator
domiciled abroad were properly executed, genuine and sufficient to possess real and personal property;
that letters testamentary were issued; and that proceedings were held on a foreign tribunal and proofs taken
by a competent judge who inquired into all the facts and circumstances and being satisfied with his findings
issued a decree admitting to probate the wills in question." However, respondent Judge said that the
documents did not establish the law of New York on the procedure and allowance of wills (Records, p. 381).
On April 9, 1986, petitioner filed a motion to allow her to present further evidence on the foreign law. After
the hearing of the motion on April 25, 1986, respondent Judge issued an order wherein he conceded that
insufficiency of evidence to prove the foreign law was not a fatal defect and was curable by adducing
additional evidence. He granted petitioner 45 days to submit the evidence to that effect.
However, without waiting for petitioner to adduce the additional evidence, respondent Judge ruled in his
order dated June 20, 1986 that he found "no compelling reason to disturb its ruling of March 31, 1986" but
allowed petitioner to "file anew the appropriate probate proceedings for each of the testator" (Records, p.
391).
The Order dated June 20, 1986 prompted petitioner to file a second motion for reconsideration stating that
she was "ready to submit further evidence on the law obtaining in the State of New York" and praying that
she be granted "the opportunity to present evidence on what the law of the State of New York has on the
probate and allowance of wills" (Records, p. 393).
On July 18, respondent Judge denied the motion holding that to allow the probate of two wills in a single
proceeding "would be a departure from the typical and established mode of probate where one petition
takes care of one will." He pointed out that even in New York "where the wills in question were first
submitted for probate, they were dealt with in separate proceedings" (Records, p. 395).
On August 13, 1986, petitioner filed a motion for the reconsideration of the Order of July 18, 1986, citing
Section 3, Rule 2 of the Rules of Court, which provides that no party may institute more than one suit for a
single cause of action. She pointed out that separate proceedings for the wills of the spouses which contain
basically the same provisions as they even named each other as a beneficiary in their respective wills, would
go against "the grain of inexpensive, just and speedy determination of the proceedings" (Records, pp. 405407).
On September 11, 1986, petitioner filed a supplement to the motion for reconsideration, citing Benigno v. De
La Pea, 57 Phil. 305 (1932) (Records,
p. 411), but respondent Judge found that this pleading had been filed out of time and that the adverse party
had not been furnished with a copy thereof. In her compliance, petitioner stated that she had furnished a
copy of the motion to the counsel of the Cunanan heirs and reiterated her motion for a "final ruling on her
supplemental motion" (Records, p. 421).
On November 19, respondent Judge issued an order, denying the motion for reconsideration filed by
petitioner on the grounds that "the probate of separate wills of two or more different persons even if they
are husband and wife cannot be undertaken in a single petition" (Records, pp. 376-378).
Hence, petitioner instituted the instant petition, arguing that the evidence offered at the hearing of April 11,
1983 sufficiently proved the laws of the State of New York on the allowance of wills, and that the separate
wills of the Cunanan spouses need not be probated in separate proceedings.
II

Petitioner contends that the following pieces of evidence she had submitted before respondent Judge are
sufficient to warrant the allowance of the wills:
(a) two certificates of authentication of the respective wills of Evelyn and Jose by the
Consulate General of the Philippines (Exhs. "F" and "G");
(b) two certifications from the Secretary of State of New York and Custodian of the Great Seal
on the facts that Judge Bernard L. Reagan is the Surrogate of the Country of Onondaga which
is a court of record, that his signature and seal of office are genuine, and that the Surrogate is
duly authorized to grant copy of the respective wills of Evelyn and Jose
(Exhs. "F-1" and "G-1");
(c) two certificates of Judge Reagan and Chief Clerk Donald E. Moore stating that they have
in their records and files the said wills which were recorded on April 7, 1982 (Exhs. "F-2" and
"G-2");
(d) the respective wills of Evelyn and Jose (Exhs. "F-3", "F-6" and Exh. "G-3" "G-6");
(e) certificates of Judge Reagan and the Chief Clerk certifying to the genuineness and
authenticity of the exemplified copies of the two wills (Exhs. "F-7" and "F-7");
(f) two certificates of authentication from the Consulate General of the Philippines in New
York (Exh. "H" and "F").
(g) certifications from the Secretary of State that Judge Reagan is duly authorized to grant
exemplified copies of the decree of probate, letters testamentary and all proceedings had and
proofs duly taken
(Exhs. "H-1" and "I-1");
(h) certificates of Judge Reagan and the Chief Clerk that letters testamentary were issued to
Rafael G. Cunanan (Exhs. "H-2" and "I-2");
(i) certification to the effect that it was during the term of Judge Reagan that a decree
admitting the wills to probate had been issued and appointing Rafael G. Cunanan as
alternate executor (Exhs. "H-3" and
"I-10");
(j) the decrees on probate of the two wills specifying that proceedings were held and proofs
duly taken (Exhs. "H-4" and "I-5");
(k) decrees on probate of the two wills stating that they were properly executed, genuine and
valid and that the said instruments were admitted to probate and established as wills valid to
pass real and personal property (Exhs. "H-5" and "I-5"); and
(l) certificates of Judge Reagan and the Chief Clerk on the genuineness and authenticity of
each others signatures in the exemplified copies of the decrees of probate, letters
testamentary and proceedings held in their court (Exhs. "H-6" and "I-6") (Rollo, pp. 13-16).
Petitioner adds that the wills had been admitted to probate in the Surrogate Courts Decision of April 13,
1983 and that the proceedings were terminated on November 29, 1984.
The respective wills of the Cunanan spouses, who were American citizens, will only be effective in this
country upon compliance with the following provision of the Civil Code of the Philippines:
Art. 816. The will of an alien who is abroad produces effect in the Philippines if made with
the formalities prescribed by the law of the place in which he resides, or according to the
formalities observed in his country, or in conformity with those which this Code prescribes.
Thus, proof that both wills conform with the formalities prescribed by New York laws or by Philippine laws
is imperative.
The evidence necessary for the reprobate or allowance of wills which have been probated outside of the
Philippines are as follows: (1) the due execution of the will in accordance with the foreign laws; (2) the
testator has his domicile in the foreign country and not in the Philippines; (3) the will has been admitted to
probate in such country; (4) the fact that the foreign tribunal is a probate court, and (5) the laws of a foreign
country on procedure and allowance of wills (III Moran Commentaries on the Rules of Court, 1970 ed., pp.
419-429; Suntay v. Suntay, 95 Phil. 500 [1954]; Fluemer v. Hix, 54 Phil. 610 [1930]). Except for the first and
last requirements, the petitioner submitted all the needed evidence.

The necessity of presenting evidence on the foreign laws upon which the probate in the foreign country is
based is impelled by the fact that our courts cannot take judicial notice of them (Philippine Commercial and
Industrial Bank v. Escolin, 56 SCRA 266 [1974]).
Petitioner must have perceived this omission as in fact she moved for more time to submit the pertinent
procedural and substantive New York laws but which request respondent Judge just glossed over. While
the probate of a will is a special proceeding wherein courts should relax the rules on evidence, the goal is to
receive the best evidence of which the matter is susceptible before a purported will is probated or denied
probate (Vda. de Ramos v. Court of Appeals, 81 SCRA 393 [1978]).
There is merit in petitioners insistence that the separate wills of the Cunanan spouses should be probated
jointly. Respondent Judges view that the Rules on allowance of wills is couched in singular terms and
therefore should be interpreted to mean that there should be separate probate proceedings for the wills of
the Cunanan spouses is too literal and simplistic an approach. Such view overlooks the provisions of Section
2, Rule 1 of the Revised Rules of Court, which advise that the rules shall be "liberally construed in order to
promote their object and to assist the parties in obtaining just, speedy, and inexpensive determination of
every action and proceeding."
A literal application of the Rules should be avoided if they would only result in the delay in the
administration of justice (Acain v. Intermediate Appellate Court, 155 SCRA 100 [1987]; Roberts v. Leonidas,
129 SCRA 33 [1984]).
What the law expressly prohibits is the making of joint wills either for the testators reciprocal benefit or for
the benefit of a third person (Civil Code of the Philippines, Article 818). In the case at bench, the Cunanan
spouses executed separate wills. Since the two wills contain essentially the same provisions and pertain to
property which in all probability are conjugal in nature, practical considerations dictate their joint probate.
As this Court has held a number of times, it will always strive to settle the entire controversy in a single
proceeding leaving no root or branch to bear the seeds of future litigation (Motoomull v. Dela Paz, 187
SCRA 743 [1990]).
This petition cannot be completely resolved without touching on a very glaring fact petitioner has always
considered herself the sole heir of
Dr. Evelyn Perez Cunanan and because she does not consider herself an heir of Dr. Jose F. Cunanan, she
noticeably failed to notify his heirs of the filing of the proceedings. Thus, even in the instant petition, she
only impleaded respondent Judge, forgetting that a judge whose order is being assailed is merely a nominal
or formal party (Calderon v. Solicitor General, 215 SCRA 876 [1992]).
The rule that the court having jurisdiction over the reprobate of a will shall "cause notice thereof to be given
as in case of an original will presented for allowance" (Revised Rules of Court, Rule 27, Section 2) means
that with regard to notices, the will probated abroad should be treated as if it were an "original will" or a
will that is presented for probate for the first time. Accordingly, compliance with Sections 3 and 4 of Rule
76, which require publication and notice by mail or personally to the "known heirs, legatees, and devisees of
the testator resident in the Philippines" and to the executor, if he is not the petitioner, are required.
The brothers and sisters of Dr. Jose F. Cunanan, contrary to petitioner's claim, are entitled to notices of the
time and place for proving the wills. Under Section 4 of Rule 76 of the Revised Rules of Court, the "court
shall also cause copies of the notice of the time and place fixed for proving the will to be addressed to the
designated or other known heirs, legatees, and devisees of the testator, . . . "
WHEREFORE, the questioned Order is SET ASIDE. Respondent Judge shall allow petitioner reasonable
time within which to submit evidence needed for the joint probate of the wills of the Cunanan spouses and
see to it that the brothers and sisters of Dr. Jose F. Cunanan are given all notices and copies of all pleadings
pertinent to the probate proceedings. SO ORDERED.
EN BANC
G.R. No. L-4067

November 29, 1951

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.
Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.
Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.
PARAS, C.J.:
This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado dated
January 3, 1943. The will is written in the Ilocano dialect and contains the following attestation clause:

We, the undersigned, by these presents to declare that the foregoing testament of Antero Mercado
was signed by himself and also by us below his name and of this attestation clause and that of the
left margin of the three pages thereof. Page three the continuation of this attestation clause; this will
is written in Ilocano dialect which is spoken and understood by the testator, and it bears the
corresponding number in letter which compose of three pages and all them were signed in the
presence of the testator and witnesses, and the witnesses in the presence of the testator and all and
each and every one of us witnesses.
In testimony, whereof, we sign this statement, this the third day of January, one thousand nine
hundred forty three, (1943) A.D.
(Sgd.) NUMERIANO EVANGELISTA

(Sgd.) "ROSENDA
CORTES

(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.
EN BANC
G.R. No. 6845

September 1, 1914

YAP TUA, petitioner-appellee,

vs.
YAP CA KUAN and YAP CA KUAN, objectors-appellants.
Chicote and Miranda for appellants.
O'Brien and DeWitt for appellee.
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 hand- writing 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.
EN BANC
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 for appellants.
M. Jesus Cuenco for appellee.
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.
EN BANC
G.R. No. L-1787

August 27, 1948

Testacy of Sixto Lopez. JOSE S. LOPEZ, petitioner-appellee,

vs.
AGUSTIN LIBORO, oppositor-appellant.
Tirona, Gutierrez and Adorable for appellant.
Ramon Diokno for appellee.

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, and Fernandez 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-36033 November 5, 1982
IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA PEREZ,
(deceased): APOLONIO TABOADA, petitioner,
vs.
HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern Leyte, (Branch III, Maasin),
respondent.
Erasmo M. Diola counsel for petition.
Hon. Avelino S. Rosal in his own behalf.
GUTIERREZ, JR. J.:
This is a petition for review of the orders issued by the Court of First Instance of Southern Leyte, Branch III,
in Special Proceedings No. R-1713, entitled "In the Matter of the Petition for Probate of the Will of Dorotea
Perez, Deceased; Apolonio Taboada, Petitioner", which denied the probate of the will, the motion for
reconsideration and the motion for appointment of a special administrator.
In the petition for probate filed with the respondent court, the petitioner attached the alleged last will and
testament of the late Dorotea Perez. Written in the Cebuano-Visayan dialect, the will consists of two pages.
The first page contains the entire testamentary dispositions and is signed at the end or bottom of the page
by the testatrix alone and at the left hand margin by the three (3) instrumental witnesses. The second page
which contains the attestation clause and the acknowledgment is signed at the end of the attestation clause
by the three (3) attesting witnesses and at the left hand margin by the testatrix.
Since no opposition was filed after the petitioner's compliance with the requirement of publication, the trial
court commissioned the branch clerk of court to receive the petitioner's evidence. Accordingly, the
petitioner submitted his evidence and presented Vicente Timkang, one of the subscribing witnesses to the
will, who testified on its genuineness and due execution.
The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned order denying the
probate of the will of Dorotea Perez for want of a formality in its execution. In the same order, the petitioner
was also required to submit the names of the intestate heirs with their corresponding addresses so that they
could be properly notified and could intervene in the summary settlement of the estate.
Instead of complying with the order of the trial court, the petitioner filed a manifestation and/or motion, ex
parte praying for a thirty-day period within which to deliberate on any step to be taken as a result of the
disallowance of the will. He also asked that the ten-day period required by the court to submit the names of
intestate heirs with their addresses be held in abeyance.
The petitioner filed a motion for reconsideration of the order denying the probate of the will. However, the
motion together with the previous manifestation and/or motion could not be acted upon by the Honorable

Ramon C. Pamatian due to his transfer to his new station at Pasig, Rizal. The said motions or incidents were
still pending resolution when respondent Judge Avelino S. Rosal assumed the position of presiding judge of
the respondent court.
Meanwhile, the petitioner filed a motion for the appointment of special administrator.
Subsequently, the new Judge denied the motion for reconsideration as well as the manifestation and/or
motion filed ex parte. In the same order of denial, the motion for the appointment of special administrator
was likewise denied because of the petitioner's failure to comply with the order requiring him to submit the
names of' the intestate heirs and their addresses.
The petitioner decided to file the present petition.
For the validity of a formal notarial will, does Article 805 of the Civil Code require that the testatrix and all
the three instrumental and attesting witnesses sign at the end of the will and in the presence of the testatrix
and of one another?
Article 805 of the Civil Code provides:
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 lacier witnesses and signed the will and 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
the witnesses, it shall be interpreted to them.
The respondent Judge interprets the above-quoted provision of law to require that, for a notarial will to be
valid, it is not enough that only the testatrix signs at the "end" but an the three subscribing witnesses must
also sign at the same place or at the end, in the presence of the testatrix and of one another because the
attesting witnesses to a will attest not merely the will itself but also the signature of the testator. It is not
sufficient compliance to sign the page, where the end of the will is found, at the left hand margin of that
page.
On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it a condition
precedent or a matter of absolute necessity for the extrinsic validity of the wig that the signatures of the
subscribing witnesses should be specifically located at the end of the wig after the signature of the testatrix.
He contends that it would be absurd that the legislature intended to place so heavy an import on the space
or particular location where the signatures are to be found as long as this space or particular location
wherein the signatures are found is consistent with good faith and the honest frailties of human nature.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end by the
testator himself or by the testator's name written by another 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.
It must be noted that the law uses the terms attested and subscribed 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. (Ragsdale v. Hill, 269 SW 2d
911).
Insofar as the requirement of subscription is concerned, it is our considered view that the will in this case
was subscribed in a manner which fully satisfies the purpose of Identification.

The signatures of the instrumental witnesses on the left margin of the first page of the will attested not only
to the genuineness of the signature of the testatrix but also the due execution of the will as embodied in the
attestation clause.
While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual forms
should be ignored, especially where the authenticity of the will is not assailed. (Gonzales v. Gonzales, 90
Phil. 444, 449).
The law is to be liberally construed, "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 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 in respect to the
formalities in the execution of a will" (Report of the Code commission, p. 103).
Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were not for the defect in the
place of signatures of the witnesses, he would have found the testimony sufficient to establish the validity of
the will.
The objects of attestation and of subscription were fully met and satisfied in the present case when the
instrumental witnesses signed at the left margin of the sole page which contains all the testamentary
dispositions, especially so when the will was properly Identified by subscribing witness Vicente Timkang to
be the same will executed by the testatrix. There was no question of fraud or substitution behind the
questioned order.
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 wig 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".
In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the following observations with respect to
the purpose of the requirement that the attestation clause must state the number of pages used:
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 win 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. Gorecho, 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.
Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a similar liberal approach:
... Impossibility of substitution of this page is assured not only (sic) the fact that the testatrix
and two other witnesses did sign the defective page, but also by its bearing the coincident
imprint of the seal of the notary public before whom the testament was ratified by testatrix
and all three witnesses. The law should not be so strictly and literally interpreted as to
penalize the testatrix on account of the inadvertence of a single witness over whose conduct
she had no control where the purpose of the law to guarantee the Identity of the testament
and its component pages is sufficiently attained, no intentional or deliberate deviation
existed, and the evidence on record attests to the fun observance of the statutory requisites.
Otherwise, as stated in Vda. de Gil. Vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on

reconsideration) 'witnesses may sabotage the will by muddling or bungling it or the

attestation clause.
WHEREFORE, the present petition is hereby granted. The orders of the respondent court which denied the
probate of tile will, the motion for reconsideration of the denial of probate, and the motion for appointment
of a special administrator are set aside. The respondent court is ordered to allow the probate of the wig and
to conduct further proceedings in accordance with this decision. No pronouncement on costs. SO
ORDERED.
EN BANC
G.R. No. L-5971

February 27, 1911

BEATRIZ NERA, ET AL., plaintiffs-appellees,

vs.
NARCISA RIMANDO, defendant-appellant.
Valerio Fontanilla and Andres Asprer for appellant.
Anacleto Diaz for appellees.
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. 124371

November 23, 2000

PAULA T. LLORENTE, petitioner,

vs.
COURT OF APPEALS and ALICIA F. LLORENTE, respondents.
DECISION
PARDO, J.:
The Case
The case raises a conflict of laws issue.
What is before us is an appeal from the decision of the Court of Appeals 1 modifying that of the Regional
Trial Court, Camarines Sur, Branch 35, Iriga City2 declaring respondent Alicia F. Llorente (herinafter
referred to as "Alicia"), as co-owners of whatever property she and the deceased Lorenzo N. Llorente
(hereinafter referred to as "Lorenzo") may have acquired during the twenty-five (25) years that they lived
together as husband and wife.
The Facts
The deceased Lorenzo N. Llorente was an enlisted serviceman of the United States Navy from March 10,
1927 to September 30, 1957.3
On February 22, 1937, Lorenzo and petitioner Paula Llorente (hereinafter referred to as "Paula") were
married before a parish priest, Roman Catholic Church, in Nabua, Camarines Sur.4
Before the outbreak of the Pacific War, Lorenzo departed for the United States and Paula stayed in the
conjugal home in barrio Antipolo, Nabua, Camarines Sur.5
On November 30, 1943, Lorenzo was admitted to United States citizenship and Certificate of Naturalization
No. 5579816 was issued in his favor by the United States District Court, Southern District of New York. 6
Upon the liberation of the Philippines by the American Forces in 1945, Lorenzo was granted an accrued
leave by the U. S. Navy, to visit his wife and he visited the Philippines. 7 He discovered that his wife Paula
was pregnant and was "living in" and having an adulterous relationship with his brother, Ceferino
Llorente.8
On December 4, 1945, Paula gave birth to a boy registered in the Office of the Registrar of Nabua as
"Crisologo Llorente," with the certificate stating that the child was not legitimate and the line for the fathers
name was left blank.9
Lorenzo refused to forgive Paula and live with her. In fact, on February 2, 1946, the couple drew a written
agreement to the effect that (1) all the family allowances allotted by the United States Navy as part of
Lorenzos salary and all other obligations for Paulas daily maintenance and support would be suspended;
(2) they would dissolve their marital union in accordance with judicial proceedings; (3) they would make a
separate agreement regarding their conjugal property acquired during their marital life; and (4) Lorenzo
would not prosecute Paula for her adulterous act since she voluntarily admitted her fault and agreed to
separate from Lorenzo peacefully. The agreement was signed by both Lorenzo and Paula and was
witnessed by Paulas father and stepmother. The agreement was notarized by Notary Public Pedro Osabel.10
Lorenzo returned to the United States and on November 16, 1951 filed for divorce with the Superior Court
of the State of California in and for the County of San Diego. Paula was represented by counsel, John Riley,
and actively participated in the proceedings. On November 27, 1951, the Superior Court of the State of
California, for the County of San Diego found all factual allegations to be true and issued an interlocutory
judgment of divorce.11
On December 4, 1952, the divorce decree became final. 12
In the meantime, Lorenzo returned to the Philippines.
On January 16, 1958, Lorenzo married Alicia F. Llorente in Manila. 13 Apparently, Alicia had no knowledge
of the first marriage even if they resided in the same town as Paula, who did not oppose the marriage or
cohabitation.14

From 1958 to 1985, Lorenzo and Alicia lived together as husband and wife. 15 Their twenty-five (25) year
union produced three children, Raul, Luz and Beverly, all surnamed Llorente.16
On March 13, 1981, Lorenzo executed a Last Will and Testament. The will was notarized by Notary Public
Salvador M. Occiano, duly signed by Lorenzo with attesting witnesses Francisco Hugo, Francisco Neibres
and Tito Trajano. In the will, Lorenzo bequeathed all his property to Alicia and their three children, to wit:
"(1) I give and bequeath to my wife ALICIA R. FORTUNO exclusively my residential house and lot, located
at San Francisco, Nabua, Camarines Sur, Philippines, including ALL the personal properties and other
movables or belongings that may be found or existing therein;
"(2) I give and bequeath exclusively to my wife Alicia R. Fortuno and to my children, Raul F. Llorente, Luz
F. Llorente and Beverly F. Llorente, in equal shares, all my real properties whatsoever and wheresoever
located, specifically my real properties located at Barangay Aro-Aldao, Nabua, Camarines Sur; Barangay
Paloyon, Nabua, Camarines Sur; Barangay Baras, Sitio Puga, Nabua, Camarines Sur; and Barangay Paloyon,
Sitio Nalilidong, Nabua, Camarines Sur;
"(3) I likewise give and bequeath exclusively unto my wife Alicia R. Fortuno and unto my children, Raul F.
Llorente, Luz F. Llorente and Beverly F. Llorente, in equal shares, my real properties located in Quezon City
Philippines, and covered by Transfer Certificate of Title No. 188652; and my lands in Antipolo, Rizal,
Philippines, covered by Transfer Certificate of Title Nos. 124196 and 165188, both of the Registry of Deeds of
the province of Rizal, Philippines;
"(4) That their respective shares in the above-mentioned properties, whether real or personal properties,
shall not be disposed of, ceded, sold and conveyed to any other persons, but could only be sold, ceded,
conveyed and disposed of by and among themselves;
"(5) I designate my wife ALICIA R. FORTUNO to be the sole executor of this my Last Will and Testament,
and in her default or incapacity of the latter to act, any of my children in the order of age, if of age;
"(6) I hereby direct that the executor named herein or her lawful substitute should served (sic) without bond;
"(7) I hereby revoke any and all my other wills, codicils, or testamentary dispositions heretofore executed,
signed, or published, by me;
"(8) It is my final wish and desire that if I die, no relatives of mine in any degree in the Llorentes Side
should ever bother and disturb in any manner whatsoever my wife Alicia R. Fortunato and my children
with respect to any real or personal properties I gave and bequeathed respectively to each one of them by
virtue of this Last Will and Testament."17
On December 14, 1983, Lorenzo filed with the Regional Trial Court, Iriga, Camarines Sur, a petition for the
probate and allowance of his last will and testament wherein Lorenzo moved that Alicia be appointed
Special Administratrix of his estate.18
On January 18, 1984, the trial court denied the motion for the reason that the testator Lorenzo was still
alive.19
On January 24, 1984, finding that the will was duly executed, the trial court admitted the will to probate. 20
On June 11, 1985, before the proceedings could be terminated, Lorenzo died. 21
On September 4, 1985, Paula filed with the same court a petition22 for letters of administration over
Lorenzos estate in her favor. Paula contended (1) that she was Lorenzos surviving spouse, (2) that the
various property were acquired during their marriage, (3) that Lorenzos will disposed of all his property in
favor of Alicia and her children, encroaching on her legitime and 1/2 share in the conjugal property. 23
On December 13, 1985, Alicia filed in the testate proceeding (Sp. Proc. No. IR-755), a petition for the issuance
of letters testamentary.24
On October 14, 1985, without terminating the testate proceedings, the trial court gave due course to Paulas
petition in Sp. Proc. No. IR-888.25
On November 6, 13 and 20, 1985, the order was published in the newspaper "Bicol Star".26
On May 18, 1987, the Regional Trial Court issued a joint decision, thus:
"Wherefore, considering that this court has so found that the divorce decree granted to the late Lorenzo
Llorente is void and inapplicable in the Philippines, therefore the marriage he contracted with Alicia
Fortunato on January 16, 1958 at Manila is likewise void. This being so the petition of Alicia F. Llorente for
the issuance of letters testamentary is denied. Likewise, she is not entitled to receive any share from the
estate even if the will especially said so her relationship with Lorenzo having gained the status of paramour
which is under Art. 739 (1).

"On the other hand, the court finds the petition of Paula Titular Llorente, meritorious, and so declares the
intrinsic disposition of the will of Lorenzo Llorente dated March 13, 1981 as void and declares her entitled
as conjugal partner and entitled to one-half of their conjugal properties, and as primary compulsory heir,
Paula T. Llorente is also entitled to one-third of the estate and then one-third should go to the illegitimate
children, Raul, Luz and Beverly, all surname (sic) Llorente, for them to partition in equal shares and also
entitled to the remaining free portion in equal shares.
"Petitioner, Paula Llorente is appointed legal administrator of the estate of the deceased, Lorenzo Llorente.
As such let the corresponding letters of administration issue in her favor upon her filing a bond in the
amount (sic) of P100,000.00 conditioned for her to make a return to the court within three (3) months a true
and complete inventory of all goods, chattels, rights, and credits, and estate which shall at any time come to
her possession or to the possession of any other person for her, and from the proceeds to pay and discharge
all debts, legacies and charges on the same, or such dividends thereon as shall be decreed or required by
this court; to render a true and just account of her administration to the court within one (1) year, and at any
other time when required by the court and to perform all orders of this court by her to be performed.
"On the other matters prayed for in respective petitions for want of evidence could not be granted.
"SO ORDERED."27
In time, Alicia filed with the trial court a motion for reconsideration of the aforequoted decision. 28
On September 14, 1987, the trial court denied Alicias motion for reconsideration but modified its earlier
decision, stating that Raul and Luz Llorente are not children "legitimate or otherwise" of Lorenzo since they
were not legally adopted by him.29 Amending its decision of May 18, 1987, the trial court declared Beverly
Llorente as the only illegitimate child of Lorenzo, entitling her to one-third (1/3) of the estate and one-third
(1/3) of the free portion of the estate.30
On September 28, 1987, respondent appealed to the Court of Appeals.31
On July 31, 1995, the Court of Appeals promulgated its decision, affirming with modification the decision of
the trial court in this wise:
"WHEREFORE, the decision appealed from is hereby AFFIRMED with the MODIFICATION that Alicia is
declared as co-owner of whatever properties she and the deceased may have acquired during the twentyfive (25) years of cohabitation.
"SO ORDERED."32
On August 25, 1995, petitioner filed with the Court of Appeals a motion for reconsideration of the
decision.33
On March 21, 1996, the Court of Appeals,34 denied the motion for lack of merit.
Hence, this petition.35
The Issue
Stripping the petition of its legalese and sorting through the various arguments raised, 36 the issue is simple.
Who are entitled to inherit from the late Lorenzo N. Llorente?
We do not agree with the decision of the Court of Appeals. We remand the case to the trial court for ruling
on the intrinsic validity of the will of the deceased.
The Applicable Law
The fact that the late Lorenzo N. Llorente became an American citizen long before and at the time of: (1) his
divorce from Paula; (2) marriage to Alicia; (3) execution of his will; and (4) death, is duly established,
admitted and undisputed.
Thus, as a rule, issues arising from these incidents are necessarily governed by foreign law.
The Civil Code clearly provides:
"Art. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons
are binding upon citizens of the Philippines, even though living abroad.
"Art. 16. Real property as well as personal property is subject to the law of the country where it is situated.
"However, intestate and testamentary succession, both with respect to the order of succession and to the
amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by
the national law of the person whose succession is under consideration, whatever may be the nature of the
property and regardless of the country wherein said property may be found." (emphasis ours)

True, foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to take
judicial notice of them. Like any other fact, they must be alleged and proved.37
While the substance of the foreign law was pleaded, the Court of Appeals did not admit the foreign law.
The Court of Appeals and the trial court called to the fore the renvoi doctrine, where the case was "referred
back" to the law of the decedents domicile, in this case, Philippine law.
We note that while the trial court stated that the law of New York was not sufficiently proven, in the same
breath it made the categorical, albeit equally unproven statement that "American law follows the
domiciliary theory hence, Philippine law applies when determining the validity of Lorenzos will. 38
First, there is no such thing as one American law.1wph!1 The "national law" indicated in Article 16 of the
Civil Code cannot possibly apply to general American law. There is no such law governing the validity of
testamentary provisions in the United States. Each State of the union has its own law applicable to its
citizens and in force only within the State. It can therefore refer to no other than the law of the State of
which the decedent was a resident.39 Second, there is no showing that the application of the renvoi doctrine
is called for or required by New York State law.
The trial court held that the will was intrinsically invalid since it contained dispositions in favor of Alice,
who in the trial courts opinion was a mere paramour. The trial court threw the will out, leaving Alice, and
her two children, Raul and Luz, with nothing.
The Court of Appeals also disregarded the will. It declared Alice entitled to one half (1/2) of whatever
property she and Lorenzo acquired during their cohabitation, applying Article 144 of the Civil Code of the
Philippines.
The hasty application of Philippine law and the complete disregard of the will, already probated as duly
executed in accordance with the formalities of Philippine law, is fatal, especially in light of the factual and
legal circumstances here obtaining.
Validity of the Foreign Divorce
In Van Dorn v. Romillo, Jr.40 we held that owing to the nationality principle embodied in Article 15 of the
Civil Code, only Philippine nationals are covered by the policy against absolute divorces, the same being
considered contrary to our concept of public policy and morality. In the same case, the Court ruled that
aliens may obtain divorces abroad, provided they are valid according to their national law.
Citing this landmark case, the Court held in Quita v. Court of Appeals,41 that once proven that respondent
was no longer a Filipino citizen when he obtained the divorce from petitioner, the ruling in Van Dorn would
become applicable and petitioner could "very well lose her right to inherit" from him.
In Pilapil v. Ibay-Somera,42 we recognized the divorce obtained by the respondent in his country, the Federal
Republic of Germany. There, we stated that divorce and its legal effects may be recognized in the
Philippines insofar as respondent is concerned in view of the nationality principle in our civil law on the
status of persons.
For failing to apply these doctrines, the decision of the Court of Appeals must be reversed. 43 We hold that
the divorce obtained by Lorenzo H. Llorente from his first wife Paula was valid and recognized in this
jurisdiction as a matter of comity. Now, the effects of this divorce (as to the succession to the estate of the
decedent) are matters best left to the determination of the trial court.
Validity of the Will
The Civil Code provides:
"Art. 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by
the laws of the country in which they are executed.
"When the acts referred to are executed before the diplomatic or consular officials of the Republic of the
Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their
execution." (underscoring ours)
The clear intent of Lorenzo to bequeath his property to his second wife and children by her is glaringly
shown in the will he executed. We do not wish to frustrate his wishes, since he was a foreigner, not covered
by our laws on "family rights and duties, status, condition and legal capacity." 44
Whether the will is intrinsically valid and who shall inherit from Lorenzo are issues best proved by foreign
law which must be pleaded and proved. Whether the will was executed in accordance with the formalities
required is answered by referring to Philippine law. In fact, the will was duly probated.

As a guide however, the trial court should note that whatever public policy or good customs may be
involved in our system of legitimes, Congress did not intend to extend the same to the succession of foreign
nationals. Congress specifically left the amount of successional rights to the decedent's national law. 45
Having thus ruled, we find it unnecessary to pass upon the other issues raised.
The Fallo
WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals in CA-G. R. SP No. 17446
promulgated on July 31, 1995 is SET ASIDE.
In lieu thereof, the Court REVERSES the decision of the Regional Trial Court and RECOGNIZES as VALID
the decree of divorce granted in favor of the deceased Lorenzo N. Llorente by the Superior Court of the
State of California in and for the County of San Diego, made final on December 4, 1952.
Further, the Court REMANDS the cases to the court of origin for determination of the intrinsic validity of
Lorenzo N. Llorentes will and determination of the parties successional rights allowing proof of foreign
law with instructions that the trial court shall proceed with all deliberate dispatch to settle the estate of the
deceased within the framework of the Rules of Court. No costs. SO ORDERED.
G.R. No. L-54919 May 30, 1984
POLLY CAYETANO, petitioner,
vs.
HON. TOMAS T. LEONIDAS, in his capacity as the Presiding Judge of Branch XXXVIII, Court of First
Instance of Manila and NENITA CAMPOS PAGUIA, respondents.
Ermelo P. Guzman for petitioner.
Armando Z. Gonzales for private respondent.
GUTIERREZ, JR., J.:
This is a petition for review on certiorari, seeking to annul the order of the respondent judge of the Court of
First Instance of Manila, Branch XXXVIII, which admitted to and allowed the probate of the last will and
testament of Adoracion C. Campos, after an ex-parte presentation of evidence by herein private respondent.
On January 31, 1977, Adoracion C. Campos died, leaving her father, petitioner Hermogenes Campos and
her sisters, private respondent Nenita C. Paguia, Remedios C. Lopez and Marieta C. Medina as the
surviving heirs. As Hermogenes Campos was the only compulsory heir, he executed an Affidavit of
Adjudication under Rule 74, Section I of the Rules of Court whereby he adjudicated unto himself the
ownership of the entire estate of the deceased Adoracion Campos.
Eleven months after, on November 25, 1977, Nenita C. Paguia filed a petition for the reprobate of a will of
the deceased, Adoracion Campos, which was allegedly executed in the United States and for her
appointment as administratrix of the estate of the deceased testatrix.
In her petition, Nenita alleged that the testatrix was an American citizen at the time of her death and was a
permanent resident of 4633 Ditman Street, Philadelphia, Pennsylvania, U.S.A.; that the testatrix died in
Manila on January 31, 1977 while temporarily residing with her sister at 2167 Leveriza, Malate, Manila; that
during her lifetime, the testatrix made her last wig and testament on July 10, 1975, according to the laws of
Pennsylvania, U.S.A., nominating Wilfredo Barzaga of New Jersey as executor; that after the testatrix death,
her last will and testament was presented, probated, allowed, and registered with the Registry of Wins at
the County of Philadelphia, U.S.A., that Clement L. McLaughlin, the administrator who was appointed after
Dr. Barzaga had declined and waived his appointment as executor in favor of the former, is also a resident
of Philadelphia, U.S.A., and that therefore, there is an urgent need for the appointment of an administratrix
to administer and eventually distribute the properties of the estate located in the Philippines.
On January 11, 1978, an opposition to the reprobate of the will was filed by herein petitioner alleging among
other things, that he has every reason to believe that the will in question is a forgery; that the intrinsic
provisions of the will are null and void; and that even if pertinent American laws on intrinsic provisions are
invoked, the same could not apply inasmuch as they would work injustice and injury to him.
On December 1, 1978, however, the petitioner through his counsel, Atty. Franco Loyola, filed a Motion to
Dismiss Opposition (With Waiver of Rights or Interests) stating that he "has been able to verify the veracity
thereof (of the will) and now confirms the same to be truly the probated will of his daughter Adoracion."
Hence, an ex-parte presentation of evidence for the reprobate of the questioned will was made.
On January 10, 1979, the respondent judge issued an order, to wit:

At the hearing, it has been satisfactorily established that Adoracion C. Campos, in her
lifetime, was a citizen of the United States of America with a permanent residence at 4633
Ditman Street, Philadelphia, PA 19124, (Exhibit D) that when alive, Adoracion C. Campos
executed a Last Will and Testament in the county of Philadelphia, Pennsylvania, U.S.A.,
according to the laws thereat (Exhibits E-3 to E-3-b) that while in temporary sojourn in the
Philippines, Adoracion C. Campos died in the City of Manila (Exhibit C) leaving property
both in the Philippines and in the United States of America; that the Last Will and Testament
of the late Adoracion C. Campos was admitted and granted probate by the Orphan's Court
Division of the Court of Common Pleas, the probate court of the Commonwealth of
Pennsylvania, County of Philadelphia, U.S.A., and letters of administration were issued in
favor of Clement J. McLaughlin all in accordance with the laws of the said foreign country on
procedure and allowance of wills (Exhibits E to E-10); and that the petitioner is not suffering
from any disqualification which would render her unfit as administratrix of the estate in the
Philippines of the late Adoracion C. Campos.
WHEREFORE, the Last Will and Testament of the late Adoracion C. Campos is hereby
admitted to and allowed probate in the Philippines, and Nenita Campos Paguia is hereby
appointed Administratrix of the estate of said decedent; let Letters of Administration with
the Will annexed issue in favor of said Administratrix upon her filing of a bond in the
amount of P5,000.00 conditioned under the provisions of Section I, Rule 81 of the Rules of
Court.
Another manifestation was filed by the petitioner on April 14, 1979, confirming the withdrawal of his
opposition, acknowledging the same to be his voluntary act and deed.
On May 25, 1979, Hermogenes Campos filed a petition for relief, praying that the order allowing the will be
set aside on the ground that the withdrawal of his opposition to the same was secured through fraudulent
means. According to him, the "Motion to Dismiss Opposition" was inserted among the papers which he
signed in connection with two Deeds of Conditional Sales which he executed with the Construction and
Development Corporation of the Philippines (CDCP). He also alleged that the lawyer who filed the
withdrawal of the opposition was not his counsel-of-record in the special proceedings case.
The petition for relief was set for hearing but the petitioner failed to appear. He made several motions for
postponement until the hearing was set on May 29, 1980.
On May 18, 1980, petitioner filed another motion entitled "Motion to Vacate and/or Set Aside the Order of
January 10, 1979, and/or dismiss the case for lack of jurisdiction. In this motion, the notice of hearing
provided:
Please include this motion in your calendar for hearing on May 29, 1980 at 8:30 in the
morning for submission for reconsideration and resolution of the Honorable Court. Until this
Motion is resolved, may I also request for the future setting of the case for hearing on the
Oppositor's motion to set aside previously filed.
The hearing of May 29, 1980 was re-set by the court for June 19, 1980. When the case was called for hearing
on this date, the counsel for petitioner tried to argue his motion to vacate instead of adducing evidence in
support of the petition for relief. Thus, the respondent judge issued an order dismissing the petition for
relief for failure to present evidence in support thereof. Petitioner filed a motion for reconsideration but the
same was denied. In the same order, respondent judge also denied the motion to vacate for lack of merit.
Hence, this petition.
Meanwhile, on June 6,1982, petitioner Hermogenes Campos died and left a will, which, incidentally has
been questioned by the respondent, his children and forced heirs as, on its face, patently null and void, and
a fabrication, appointing Polly Cayetano as the executrix of his last will and testament. Cayetano, therefore,
filed a motion to substitute herself as petitioner in the instant case which was granted by the court on
September 13, 1982.
A motion to dismiss the petition on the ground that the rights of the petitioner Hermogenes Campos
merged upon his death with the rights of the respondent and her sisters, only remaining children and
forced heirs was denied on September 12, 1983.
Petitioner Cayetano persists with the allegations that the respondent judge acted without or in excess of his
jurisdiction when:
1) He ruled the petitioner lost his standing in court deprived the Right to Notice (sic) upon
the filing of the Motion to Dismiss opposition with waiver of rights or interests against the
estate of deceased Adoracion C. Campos, thus, paving the way for the hearing ex-parte of the
petition for the probate of decedent will.

2) He ruled that petitioner can waive, renounce or repudiate (not made in a public or
authenticated instrument), or by way of a petition presented to the court but by way of a
motion presented prior to an order for the distribution of the estate-the law especially
providing that repudiation of an inheritance must be presented, within 30 days after it has
issued an order for the distribution of the estate in accordance with the rules of Court.
3) He ruled that the right of a forced heir to his legitime can be divested by a decree
admitting a will to probate in which no provision is made for the forced heir in complete
disregard of Law of Succession
4) He denied petitioner's petition for Relief on the ground that no evidence was adduced to
support the Petition for Relief when no Notice nor hearing was set to afford petitioner to
prove the merit of his petition a denial of the due process and a grave abuse of discretion
amounting to lack of jurisdiction.
5) He acquired no jurisdiction over the testate case, the fact that the Testator at the time of
death was a usual resident of Dasmarias, Cavite, consequently Cavite Court of First
Instance has exclusive jurisdiction over the case (De Borja vs. Tan, G.R. No. L-7792, July
1955).
The first two issues raised by the petitioner are anchored on the allegation that the respondent judge acted
with grave abuse of discretion when he allowed the withdrawal of the petitioner's opposition to the
reprobate of the will.
We find no grave abuse of discretion on the part of the respondent judge. No proof was adduced to support
petitioner's contention that the motion to withdraw was secured through fraudulent means and that Atty.
Franco Loyola was not his counsel of record. The records show that after the firing of the contested motion,
the petitioner at a later date, filed a manifestation wherein he confirmed that the Motion to Dismiss
Opposition was his voluntary act and deed. Moreover, at the time the motion was filed, the petitioner's
former counsel, Atty. Jose P. Lagrosa had long withdrawn from the case and had been substituted by Atty.
Franco Loyola who in turn filed the motion. The present petitioner cannot, therefore, maintain that the old
man's attorney of record was Atty. Lagrosa at the time of filing the motion. Since the withdrawal was in
order, the respondent judge acted correctly in hearing the probate of the will ex-parte, there being no other
opposition to the same.
The third issue raised deals with the validity of the provisions of the will. As a general rule, the probate
court's authority is limited only to the extrinsic validity of the will, the due execution thereof, the testatrix's
testamentary capacity and the compliance with the requisites or solemnities prescribed by law. The intrinsic
validity of the will normally comes only after the court has declared that the will has been duly
authenticated. However, where practical considerations demand that the intrinsic validity of the will be
passed upon, even before it is probated, the court should meet the issue. (Maninang vs. Court of Appeals,
114 SCRA 478).
In the case at bar, the petitioner maintains that since the respondent judge allowed the reprobate of
Adoracion's will, Hermogenes C. Campos was divested of his legitime which was reserved by the law for
him.
This contention is without merit.
Although on its face, the will appeared to have preterited the petitioner and thus, the respondent judge
should have denied its reprobate outright, the private respondents have sufficiently established that
Adoracion was, at the time of her death, an American citizen and a permanent resident of Philadelphia,
Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and 1039 of the Civil Code which respectively
provide:
Art. 16 par. (2).
xxx xxx xxx
However, intestate and testamentary successions, both with respect to the order of succession
and to the amount of successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person whose succession is under
consideration, whatever may be the nature of the property and regardless of the country
wherein said property may be found.
Art. 1039.
Capacity to succeed is governed by the law of the nation of the decedent.

the law which governs Adoracion Campo's will is the law of Pennsylvania, U.S.A., which is the national law
of the decedent. Although the parties admit that the Pennsylvania law does not provide for legitimes and
that all the estate may be given away by the testatrix to a complete stranger, the petitioner argues that such
law should not apply because it would be contrary to the sound and established public policy and would
run counter to the specific provisions of Philippine Law.
It is a settled rule that as regards the intrinsic validity of the provisions of the will, as provided for by Article
16(2) and 1039 of the Civil Code, the national law of the decedent must apply. This was squarely applied in
the case of Bellis v. Bellis (20 SCRA 358) wherein we ruled:
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.
xxx xxx xxx
The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas,
U.S.A., and under the law 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.
As regards the alleged absence of notice of hearing for the petition for relief, the records wig bear the fact
that what was repeatedly scheduled for hearing on separate dates until June 19, 1980 was the petitioner's
petition for relief and not his motion to vacate the order of January 10, 1979. There is no reason why the
petitioner should have been led to believe otherwise. The court even admonished the petitioner's failing to
adduce evidence when his petition for relief was repeatedly set for hearing. There was no denial of due
process. The fact that he requested "for the future setting of the case for hearing . . ." did not mean that at the
next hearing, the motion to vacate would be heard and given preference in lieu of the petition for relief.
Furthermore, such request should be embodied in a motion and not in a mere notice of hearing.
Finally, we find the contention of the petition as to the issue of jurisdiction utterly devoid of merit. Under
Rule 73, Section 1, of the Rules of Court, it is provided that:
SECTION 1. Where estate of deceased persons settled. If the decedent is an inhabitant of the
Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or
letters of administration granted, and his estate settled, in the Court of First Instance in the
province in which he resided at the time of his death, and if he is an inhabitant of a foreign
country, the Court of First Instance of any province in which he had estate. The court first
taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to
the exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on
the place of residence of the decedent, or of the location of his estate, shall not be contested in
a suit or proceeding, except in an appeal from that court, in the original case, or when the
want of jurisdiction appears on the record.
Therefore, the settlement of the estate of Adoracion Campos was correctly filed with the Court of First
Instance of Manila where she had an estate since it was alleged and proven that Adoracion at the time of her
death was a citizen and permanent resident of Pennsylvania, United States of America and not a "usual
resident of Cavite" as alleged by the petitioner. Moreover, petitioner is now estopped from questioning the
jurisdiction of the probate court in the petition for relief. It is a settled rule that a party cannot invoke the
jurisdiction of a court to secure affirmative relief, against his opponent and after failing to obtain such relief,
repudiate or question that same jurisdiction. (See Saulog Transit, Inc. vs. Hon. Manuel Lazaro, et al., G. R.
No. 63 284, April 4, 1984).
WHEREFORE, the petition for certiorari and prohibition is hereby dismissed for lack of merit.
SO ORDERED.
G.R. Nos. L-46430-31 July 30, 1979
FRANCISCA ALSUA-BETTS, JOSEPH O. BETTS, JOSE MADARETA, ESTEBAN P. RAMIREZ, and
THE REGISTER OF DEEDS FOR ALBAY PROVINCE, petitioners,
vs.
COURT OF APPEALS, AMPARO ALSUA BUENVIAJE, FERNANDO BUENVIAJE, FERNANDO
ALSUA, represented by his guardian, CLOTILDE S. ALSUA and PABLO ALSUA, respondents.
Rafael Triumfante for petitioners.

Sabido-Sabido & Associates and Madrid Law Office for private respondents.
GUERRERO, J.:1wph1.t
This is an appeal by certiorari from the decision of the Court of Appeals in CA-G.R. Nos. 54492-R and
54493-R which reversed the decision of the Court of First Instance of Albay allowing the probate of the win
of Don Jesus Alsua in Special Proceedings No. 699 and dismissing the complaint in Civil Case 3068 after
declaring the two deeds of sale executed by Don Jesus Alsua legal and valid. The respondent court 1 denied
the probate of the will, declared null and void the two sales subject of the complaint and ordered the
defendants, petitioners herein, to pay damages to the plaintiffs, now the private respondents, the sum of
Five Thousand Pesos (P5,000.00), to render an accounting of the properties in their possession and to
reimburse the latter the net gain in the proportion that appertains to them in the properties from the date of
the firing of the complaint up to complete restoration plus Fifty Thousand Pesos (P50,000.00) as attorney's
fees and costs.
The antecedent events leading to the filing of these two consolidated actions are the following.
On November 25, 1949, Don Jesus Alsua and his wife, Do;a Florentina Rella, both of Ligao, Albay, together
with all their living children, Francisca Alsua-Betts, Pablo Alsua, Fernando Alsua thru this judicial guardian
Clotilde Samson, and Amparo Alsua de Buenviaje, entered into a duly notarized agreement, Escritura de
Particion Extrajudicial (Exhibit 8), over the then present and existing properties of the spouses Don Jesus and
Do;a Florentina enumerated in a prepared inventory, Exhibit 8-A, the essential features of which are stated
in private respondents' Brief, pp. 26-29, to wit: t.hqw
(1) Basis of the partition: Inventory (Annex A) of all the properties of the Alsua spouses,
which inventory consists of 97 pages, all of them signed by the spouses and all the above
named heirs in the left margin of every page (parafo primers).
(2) An acknowledgment of the spouses that all the properties described in the inventory
(Annex A) are conjugal properties with the exception of five parcels of land Identified with
the figures of 1 to 5 and 30 shares of San Miguel Brewery stock which are paraphernal
properties of the late Do;a Tinay (segundo parafo).
(3) An acknowledgment that during their marriage, they had nine children but five of them
died minors, unmarried (parafo tercero y cuatro).
(4) An acknowledgment that on the basis of Article 1056 of the Civil Code (old) to avoid
Possible misunderstanding among their children concerning the inheritance they are entitled
to in the event of death of one of them they have decided to effectuate an extrajudicial
partition of all the properties described in Annex "A" thereto under the following terms and
conditions: (Parafo quinto):
To Francisca Alsua, married to Joseph O. Betts were allotted or assigned all the real properties with the
improvements thereon specifically described from pages 1-12 of said inventory or, 34 parcels of land with a
total land area of 5,720,364 sq. meters, with a book or appraised value of P69,740.00.
To Pablo Alsua, married to Teresa Locsin were allotted or assigned all the real properties with the
improvements thereon specifically described from pages 12-20 of said inventory or, 26 parcels of land with a
total land area of 5,679,262 sq. meters, with a book or appraised value of P55,940.00.
To Fernando Alsua, married to Clotilde Samson were allotted or assigned all the real properties with the
improvements thereon specifically described from pages 20-33 of said inventory or, 47 parcels of land with a
total land area of 6,639,810 sq. meters, with a book or appraised value of P89,300.00.
To Amparo Alsua, married to Fernando Buenviaje were allotted or assigned all the real properties with the
improvements thereon specifically described from pages 33-47 of said inventory or, 47 parcels of land with a
total land area of 5,630,715 sq. meters, with a book or appraised value of P58,830.00. t.hqw
(a) Each and every one of the heirs named above acknowledge and admit that the totality of
the properties allotted and adjudicated to the heirs as described in the preceding paragraph,
constitute one half of the properties described in Annex "A", including any amount of cash
deposited.
(b) That all the heirs acknowledge and admit that all the properties assigned to them as their
hereditary portion represent one-half not only of the conjugal properties but includes the
paraphernal properties waiving now and forever any complaint or claim they have or they
may have concerning the amount, value, extension and location of the properties that are

allotted to each and everyone. They also waive any claim they have or they may have over
the remaining portion of the properties, which spouses reserved for themselves.
(c) That in case of death of one of the spouses, each and everyone of the heirs acknowledge
that the properties which are left in the possession of the surviving spouse, including any
amount in cash, are even less than the one- half that should correspond in absolute
ownership as his legitimate participation in the conjugal properties. In consequence they
waive any claim that they have or may have over said portion of said properties or any
amount in cash during the lifetime of the surviving spouse, including any right or claim they
have or they may have over the paraphernal properties of Do;a Tinay in the event the
surviving spouse is Don Jesus.
(d) The spouses on their part in case of death of any one of them, the surviving spouse
waives any claim he or she may have over the properties assigned or adjudicated to the heirs
under and by virtue of this deed. The properties which were reserved for them (the spouses)
should be considered as his or her legitimate participation in the conjugal properties and the
fair compensation of his or her usufruct on the properties that the surviving spouse reserved
for himself or herself which shag be distributed in equal shares among the heirs upon his or
her death unless said properties of some of them have been disposed of during the lifetime of
the surviving spouse.
(e) Any heir who may dare question the validity and legitimacy of the provision contained
herein shall be under obligation to pay to the other heirs, in the concept of damages and
prejudice, the sum of P5,000.00 plus attorney's fees.
(f) The provisions of this deed shall bind the successors of the herein heirs.
(g) In the event of death of one of the spouses, the properties assigned or adjudicated to each
and everyone of the heirs shall be considered as his share or participation in the estate or as
his inheritance left by the deceased and each heir shall become the absolute owner of the
properties adjudicated to him under this deed.
On January 5, 1955, Don Jesus and Do;a Florentina, also known as Do;a Tinay separately executed their
respective holographic wills (Exhs. 6-B and 7-B), the provisions of which were in conformity and in
implementation of the extrajudicial partition of November 25, 1949. Their holographic wills similarly
provided for the institution of the other to his or her share in the conjugal properties, the other half of the
conjugal assets having been partitioned to constitute their legitime among their four living children in the
Extrajudicial Partition of 1949. The wigs also declared that in the event of future acquisitions of other
properties by either of them, one-half thereof would belong to the other spouse, and the other half shall be
divided equally among the four children. The holographic will of Do;a Tinay written in Spanish reads, as
translated: t.hqw
TESTAMENT
I, FLORENTINA R. DE ALSUA, 67 years old, Filipina, married to Don Jesus Alsua, resident
of and with postal address in the Municipality of Ligao, Province of Albay, Philippines, being
in the full possession of my mental and physical faculties freely and spontaneously execute
this my last will and testament in my handwriting and signed by me and expressed in the
Spanish language which I speak, write and understand, this 5th day of January, 1955 in the
Municipality of Ligao, Province of Albay, and in which I ordain and provide:
First: That in or about the year 1906 I was married to my husband Don Jesus Alsua and begot
nine (9) children with him, four (4) of whom are still living and they are Francisco Alsua,
Pablo Alsua, Fernando Alsua and Amparo Alsua. The other five (5) died during their
minority, single and without children.
Second: That after my marriage to my husband Don Jesus Alsua and during our conjugal
union, and as a result of our efforts and industry, we were able to acquire conjugal properties
consisting of abaca (abales) and cacao lands and urban lands registered in the office of the
Registry of Property of the Province of Albay and in the City of Manila.
Third: That I institute as my heirs with right to inherit the following- my spouse Don Jesus
Alsua, one-half (1/2) of my properties, real and personal, and the other half, to my children
Francisco Alsua, married to Joseph O. Betts, Pablo Alsua, Fernando Alsua, married to
Clotilde Samson, and Amparo Alsua, married to Fernando Buenviaje, in equal parts. It is to
be understood, however, that the other half that corresponds as legitime to my above named
children have already been given to them, pursuant to a document dated November 25, 1949
and ratified on the same day, month and year before Notary Public Segundo G. Flores (Reg.

No. 525; Pag. 15; Lib. 11; Series of 1949) enjoining each and everyone of them to respect and
faithfully comply with each and every clause contained in the said document.
Fourth: That should I acquire new properties after the execution of this testament, the same
shall be partitioned among my spouse and above named children or the children mentioned
in above par. 3 in the same proportion that is, one-half (1 1/2) to my spouse; and the other
half to my children in equal parts.
Fifth: That I name as my executor my husband Don Jesus Alsua without having to post any
bond.
IN VIRTUE WHEREOF, I hereby sign in my own handwriting this testament on this 5th day
of January, 1955 in the Municipality of Ligao, Province of Albay, Philippines. t.hqw
(SGD.) FLORENTINA R. DE
ALSUA
(Joint Record on appeal pp. 420-423, CA-G.R. No. 54492-R)
As previously stated, Don Jesus Alsua executed a separate but similar holographic will on the same day,
Jan. 5, 1955 in exactly the same terms and conditions as the above will of his wife.
On May 21, 1956, the spouses Don Jesus and Do;a Tinay filed before the Court of First Instance of Albay
their respective petitions for the probate of their respective holographic wins which were docketed as
Special Proceedings No. 484 (Jesus Alsua, Petitioner) and Special Proceedings No. 485 (Do;a Florentina
Ralla de Alsua, Petitioner).
On August 14, 1956, the spouses Don Jesus and Do;a Tinay executed their mutual and reciprocal codicils
amending and supplementing their respective holographic wins. Again, the codicils similarly
acknowledged and provided that one-half of all the properties of the spouses, conjugal and paraphernal,
had been disposed of, conveyed to and partitioned among their legitimate heirs in the "Escritura de
Particion" of November 25, 1949, but that they reserved for themselves (the spouses Don Jesus and Do;a
Tinay) the other half or those not disposed of to the said legitimate heirs under the above agreement of
partition, and that they mutually and reciprocally bequeathed unto each other their participation therein as
well as in all properties which might be acquired subsequently. Each spouse also declared that should she
or he be the surviving spouse, whatever belongs to him or her or would pertain to him or her, would be
divided equally among the four children. It was also declared in both codicils that upon the death of either
of the spouses, the surviving spouse was designated mutually and reciprocally as the executor or
administrator of all the properties reserved for themselves.
The codicil executed by Do;a Tinay, written in Spanish reads, as translated: t.hqw
CODICIL
This codicil supplements and amends the preceding testament. That my spouse and I have
agreed to divide the properties which we have acquired into 2 parts. The 1/2 that would
correspond to me covers all the properties that I have partitioned among my children in the
Document of Partition dated November 25, 1949 before Notary Public Segundo G. Flores, Jr.
(Doc. No. 525; Pag. No. 15; Lib. No. 11; Series of 1949) (and) even as the properties which by
reason of this testament I leave to my husband as his share and the other half that
corresponds to my husband constitutes an the properties that up to now have not been
disposed of, particularly the urban lands situated in Legaspi, Albay, Ligao of the Province of
Albay and in the City of Manila, with the exception of that portion that I bequeath to my
husband as his inheritance and his legitimate.
That I institute as my heirs with the right to inherit my husband Don Jesus Alsua and my
children Francisco Alsua, Pablo Alsua, Fernando Alsua and Amparo Alsua. I leave to my
aforecited children all the properties described in the above mentioned Document of
Partition dated November 25, 1949 which correspond to each one of them and in the profits
(fruits) expressed in the same, and in the event that the properties granted to one or any of
my children should exceed in quantity or value those corresponding to another or others, I
hereby declare that it is my will that the same be divided among my children as their
inheritance from the free portion of my property.
I leave to my spouse Don Jesus Alsua as his legitime and as Ws inheritance the part of the
free portion of my property which have not been allocated in favor of my children in the
Document of Partition aforecited and that which should exceed 1/2 of the conjugal property
of gains that pertains to him as above stated, including all those properties which we shall
acquire after the execution of this document.

In case it should be God's will that I survive my spouse, I hereby declare that it is my will
that any and all kinds of property that pertain to me or would pertain to me, which have not
been disposed of pursuant to the partition, should be divided equally among my abovementioned heirs after my death. Ligao, Albay, Philippines, August 14,1956. t.hqw
(SGD.) FLORENTINA RALLA DE
ALSUA
(joint Record on Appeal pp. 423-425, CA-G.R. No. 54492-R)
And as stated previously, on the same day, August 14, 1956, Don Jesus executed also a separate but similar
codicil in exactly the same terms and conditions as the above codicil of his wife. Also on the same day of
August 14, 1956, the spouses Don Jesus and Do;a Tinay both filed their respective supplemental petitions
for the probate of their respective codicils in the probate proceedings earlier filed. On February 19, 1957,
their respective holographic wins and the codicils thereto were duly admitted to probate.
Upon the death of Do;a Tinay on October 2, 1959, Don Jesus was named executor to serve without bond in
an order issued by the probate court on October 13, 1959. Letters testamentary having been issued in favor
of Don Jesus, he took his oath of office and performed his duties as such until July 1, 1960.
Thereafter in the early part of November, 1959, Don Jesus cancelled his holographic will in the presence of
his bookkeeper and secretary, Esteban P. Ramirez, whom he instructed to make a list of all his remaining
properties with their corresponding descriptions. His lawyer, Atty. Gregorio imperial Sr. was then
instructed to draft a new will which was duly signed by Don Jesus and his attesting witnesses on November
14, 1959 at Ms home in Ligao, Albay. This notarial will and testament (Exh. A) of Don Jesus executed on
November 14, 1959 had three essential features: (a) it expressly cancelled, revoked and annulled all the
provisions of Don Jesus' holographic will of January 5, 1955 and his codicil of August 14, 1956; (b) it
provided for the collation of all his properties donated to his four living children by virtue of the "Escritura
de Particion Extra. judicial" of 1949, and that such properties be taken into account in the partition of his
estate among the children; and (c) it instituted his children as legatees/devisees of certain specific
properties, and as to the rest of the properties and whatever may be subsequently acquired in the future,
before his death, were to be given to Francisca and Pablo, naming Francesca as executrix to serve without a
bond.
After all debts, funeral charges and other expenses of the estate of Do;a Tinay had been paid, all her heirs
including Don Jesus, submitted to the probate court for approval a deed of partition executed on December
19, 1959 (Exh. 7-Q) and which essentially confirmed the provisions of the partition of 1949, the holographic
will and codicil of Do;a Tinay. On July 6, 1960, the court approved the partition of 1959 and on January 6,
1961 declared the termination of the proceedings on the estate of Do;a Tinay.
On May 6,1964, Don Jesus Alsua died.
On May 20, 1964, petitioner herein Francisca Alsua Betts, as the executrix named in the will of November 14,
1959, filed a petition for the probate of said new will of Don Jesus Alsua before the Court of First Instance of
Albay and was docketed as Special Proceedings No. 699. Oppositions thereto were filed by Pablo, Amparo
and Fernando, thru his judicial guardian Clotilde Samson, on the following grounds: (a) that Don Jesus was
not of sound and disposing mind at the time of the execution of the alleged will; (b) that the will was
executed under duress or influence of fear or threats; or it was procured by undue and improper pressure
and influence on the part of the main beneficiaries and of person or persons in collusion with them, or the
signature of the testator was secured by or thru fraud; (c) that the will was not executed according to the
formal requirements of the law; and (d) that the alleged will subject of probate contravened the Extrajudicial
Partition of 1949 agreed upon by him, his deceased spouse, Do;a Tinay, and all his children, Francisco,
Pablo, Amparo and Fernando thru his judicial guardian Clotilde Samson, and also contravened Don Jesus'
own probated holographic will and codicil of 1955 and 1956, respectively, essentially confirming and
implementing the said partition of 1949 which had already been partially executed by all the signatories
thereto in the partition of the estate of Do;a Tinay in December, 1959.
On the basis of Francisca's designation as executrix in the new will dated November 14, 1959, the Probate
Court appointed her Administratrix of the estate of her late father, Don Jesus Alsua. She then filed with the
Probate Court an inventory of the properties of the estate which, according to the oppositors therein (the
private respondents now) did not include some properties appearing in the agreement of November 25.
1949 or in the inventory attached thereto as Annex "A" and in the "Escritura de Particion" of December 19,
1959 as belonging to or should pertain to Don Jesus. According to the oppositors, these properties consist of
thirty- three (33) premium agricultural lots with a total land area of 1,187,970 square meters, or
approximately 119 hectares and with a total assessed value of P48,410.00 or a probable total market value of
P238,000.00 at only P2,000.00 per hectare, and four (4) commercial urban lots Ideally located in the business

section of Legazpi City including the lot and the building presently occupied by the well-known "Mayon
Hotel" with an assessed value of approximately P117,260.00 or a probable market value at the time of
P469,040.00. It appearing from the new will that these properties were bequeathed to Pablo Alsua and
Francisco Alsua-Betts, specifically, 3 parcels of the 33 agricultural lands to Pablo and the rest to Francisco,
the oppositors also raised in issue the non-inclusion of said properties in the inventory of the estate of their
late father. In answer, Francisco claimed ownership over the same, alleging that she bought the properties
from their father and presenting the two Deeds of Sale now being assailed, one dated August 26, 1961
purporting to show the sale of the 33 parcels of agricultural land to Francisco by their father for the price of
P70,000.00 and the other dated November 26, 1962 evidencing the sale of the four urban lots for the sum of
P80,000.00. Claiming fraud in the sales, the oppositors filed Civil Case No. 3068, seeking the annulment of
the aforesaid two deeds of sale, with damages, which upon agreement of the parties was then jointly heard
and tried with Special Proceedings No. 699 for probate of the Last Will and Testament of Don Jesus
executed on November 14, 1959.
After a joint hearing of the merits of these two cases, the Court of First Instance of Albay promulgated a
decision on January 15, 1973, the dispositive portion of which states: t.hqw
WHEREFORE, in view of all the foregoing, judgment is hereby rendered, to wit:
1. In Special Proceedings 699, the Court hereby APPROVES and ALLOWS the Will executed
by Don Jesus Alsua at Ligao, Albay, on November 14, 1959, which had been marked as
Exhibit A, consisting of nine (9) pages, and orders that the same be made the basis for
division and distribution of the estate of said testator;
2. In Civil Case 3068, the Court hereby dismisses the complaint and holds that the sale on
August 26, 1961 (Exh. U) and the sale on November 26, 1962 (Exh. W), are lawful and valid
sales and accordingly conveyed title to the VENDEE thereof. The Plaintiffs in Civil Case 3068.
are ordered jointly and severally to pay to the defendant, Francisco Alsua Betts Fifty
Thousand Pesos (P50,000.00) as damages and Fifty Thousand (P50,000.00) Pesos for
attorney's fees or a total of One Hundred Thousand Pesos (P100,000.00) and to pay the costs.
On appeal by herein respondents to the Court of Appeals, the court reversed the appealed decision in a
judgment rendered on April 4, 1977, the dispositive portion of which states, as translated, thus t.hqw
IN VIEW OF THE FOREGOING, this Tribunal finds itself constrained to set aside as it hereby
sets aside the decision appealed from in the following manner: (1) in Special Proceedings 699,
the probate of the will, Exh. A, is hereby denied; (2) in Civil Case No. 3068, Exhs. U and W
and the titles issued on the basis thereof are hereby declared null and void, ordering the
appellees Francisco Alsua and Joseph Betts to pay to the plaintiffs in the concept of fixed
damages, the sum of P5,000.00 and to render an accounting of properties in their possession
and to reimburse the plaintiffs the net gain, in the proportion that appertains to them in the
properties subject of litigation in Civil Case No. 3068 from the date of the filing of this
complaint, up to the complete restoration of the properties pertaining to (plaintiffs) pursuant
to Article 2208 of the New Civil Code, paragraph 11, ordering them in addition to pay to the
plaintiffs and oppositors the sum of P50,000.00 as attorney's fees, and the costs.
Hence, the petition at bar assailing the respondent court's decision on four assigned errors, to wit:
t.hqw
I. The respondent Court of Appeals erred in not affirming the findings of the probate court
(Special Proceedings No. 699) that private respondents, oppositors to the probate of the will,
are in estoppel to question the competence of testator Don Jesus Alsua.
II. The respondent Court of Appeals grossly erred in holding that testator Don Jesus Alsua
cannot revoke his previous will.
III. The respondent court's finding is grounded entirely on speculation, surmises or
conjectures resulting in a gross misapprehension of facts.
IV. The respondent court grossly erred in annulling the sales of August 26, 1961 (Exh. U), and
of November 26, 1962 (Exh. W).
On the first issue of estoppel raised in the assignment of errors, We hold that the same is of no moment. The
controversy as to the competency or incompetency of Don Jesus Alsua to execute his will cannot be
determined by acts of the herein private respondents as oppositors to the will in formally agreeing in
writing jointly with the petitioner Francisca Alsua de Betts that their father, Don Jesus Alsua, be appointed
by the court executor of the will of their mother in Special Proceedings No. 485, Testate Estate of Do;a
Florentina Ralla de Alsua and in subsequently petitioning the court not to require Don Jesus Alsua to file

any accounting as executor in the proceedings, which petitioners claim and was upheld by the trial court as
constituting estoppel on the part of the private respondents from questioning the competence of Don Jesus
Alsua.
The principle of estoppel is not applicable in probate proceedings, a ruling laid down in the case of Testate
Estate of the Late Procopia Apostol Benedicta Obispo, et al vs. Remedios Obispo, 50 O.G. 614, penned by Justice
J.B.L. Reyes, an eminent and recognized authority on Civil Law when he was still in the Court of Appeals,
and We quote: t.hqw
Finally, probate proceedings involve public interest, and the application therein of the rile of
estoppel, when it win block the ascertainment of the truth as to the circumstances
surrounding the execution of a testament, would seem inimical to public policy. Over and
above the interest of private parties is that of the state to see that testamentary dispositions be
carried out if, and only if, executed conformably to law.
The Supreme Court of New York aptly said in Re Canfield's Will, 300 N.Y.S., 502: t.hqw
'The primary purpose of the proceeding is not to establish the existence of the
right of any living person, but to determine whether or not the decedent has
performed the acts specified by the pertinent statutes, which are the essential
prerequisites to personal direction of the mode of devolution of his property
on death. There is no legal but merely a moral duty resting upon a proponent
to attempt to validate the wishes of the departed, and he may and frequently
does receive no personal benefit from the performance of the act.
One of the most fundamental conceptions of probate law, is that it is the duty
of the court to effectuate, in so far as may be compatible with the public
interest, the devolutionary wishes of a deceased person (Matter of Watson's
Wilt 262 N.Y., 284, 294, 186, N.E., 787; Matter of Marriman's Estate, 124 Misc.
320, 325, 208, N.Y.S., 672; Foley, S., affirmed 217 app. Div., 733, 216 N.Y.S., 126,
Henderson, S., Matter of Draske's Estate, 160 Misc. 587, 593, 290, N.Y.S., 581).
To that end, the court is, in effect, an additional party to every litigation
affecting the disposal of the assets of the deceased. Matter of Van
Valkenburgh's Estate, 164 Misc. 295, 298, N.Y.S., 219.'
The next issue that commands Our attention is whether the respondent court erred in not allowing the
probate of the last will and testament of Don Jesus Alsua. Petitioners claim that the disallowance was based
on speculations, surmises or conjectures, disregarding the facts as found by the trial court. The Civil Court is
very clear and explicit in providing the cases where a will may be disallowed under Article 839 which
provides as follows: t.hqw
Art. 839. The will shall be disallowed in any of the following cases:
(1) If the formalities required by law have not been complied with;
(2) If the testator was insane, or otherwise mentally incapable of making a wilt at the time of
its execution;
(3) If it was executed through force or under duress, or the influence of fear, or threats;
(4) If it was procured by undue and improper pressure and influence, on the part of the
beneficiary or of some other person;
(5) If the signature of the testator was procured by fraud,
(6) If the testator acted by mistake or did not intend that the instrument he signed should be
his will at the time of affixing his signature thereto.
The issue under consideration appears to Us to have been answered by the respondent court itself when it
accepted the findings of the trial court on the due execution of the questioned will and testament of Don
Jesus, declaring: t.hqw
... and going back to the previous question, whether the questioned will and testament of
November 14, 1959, Exh. A, was executed in accordance with Arts. 805-809 of the New Civil
Code, this Tribunal from the very beginning accepts the findings of the inferior court
concerning the question, t.hqw
On October 2, 1959, Do;a Florentina died at Ligao, Albay. About 2 weeks
after said death of his wife, Don Jesus Alsua decided to make a new will,
thereby revoking and cancelling his previous holographic will which he made

on January 5, 1955 and also its codicil dated August 14, 1956. In the presence
of his bookkeeper and secretary, Esteban P. Ramirez, he crossed out in ink
each and every page of said page he wrote on each page the word "cancelado",
and affixed his signature thereon (Exh V-5, V-6, consecutively up to and
including Exh. V-14). He then instructed Ramirez to make a list of all s
properties with their corresponding descriptions.
Meanwhile, Don Jesus Alsua sent for his lawyer, Don Gregorio Imperial, Sr.
and the latter came accompanied by his son, Atty. Jorge S, Imperial, who,
incidentally, is now a judge of the Court of First Instance of Naga City,
Camarines Sur. Don Jesus informed his lawyers that he wanted to make a new
will, and accordingly gave more detailed instructions as to how he wanted to
divide his properties among his four children. He handed to them a list and on
the left he indicated the name of the child to whom the listed properties shall
pertain. Atty. Jorge Imperial took notes of the instructions of Don Jesus Alsua.
To Don Jesus, Spanish is his major language, as in fact his conversations with
Don Gregorio are always in Spanish. A few days before November 14, 1959,
Atty. Jorge S. Imperial showed to Don Jesus the semi-final draft of the will and
after reading it Don Jesus said that it was as directed by him, and after making
a few minor corrections, he instructed Atty. Jorge S. Imperial to put the win in
final form. He further told Atty, Jorge Imperial that the signing of the will
should be at his home in Ligao, in the morning of November 14, 1959, and that
the witnesses should be Mr. Ramon Balana, the then Register of Deeds of
Albay; Mr. Jose Madarieta who is a friend of the family; and Mr. Jose Gaya
who is a sort of employee of Don Jesus.
Thus in the morning of November 14, 1959, Don Gregorio and Atty. Jorge S.
Imperial, riding in a sedan, stopped at the Legaspi residence of Mr. Ramon
Balana, and informed the latter that Don Jesus was requesting him to be one of
the attesting witnesses to his will. Mr. Balana, having a very high regard for
Don Jesus, considered it an honor to be so asked, and gladly went with the
Imperials. They arrived at the residence of Don Jesus at Ligao; Albay, almost
ten o'clock of that morning, and they were ushered in by Mr. Jose Gaya, and
the latter requested them to be seated at the usual receiving room on the
ground floor while he announced their arrival to Don Jesus who was on the
second floor. Soon Don Jesus came down, carrying with him the will to be
signed placed inside a cartolina folder. He greeted Don Gregorio, Mr. Balan,
and Atty. Imperial and immediately joined them in conversation. Mr. Gaya
called for Mr. Jose Madarieta, whose residence is just across the road from the
house of Don Jesus. Mr. Madarieta was already informed by Don Jesus
himself about the fact of signing the will that morning, and so, on being
advised by Mr. Gaya that the Imperials had already arrived, Madarieta
proceeded to the residence of Don Jesus, without much delay. With the
coming of Madarieta and the coming back of Gaya, there were now six people
gathered in the living room, namely: Don Jesus Alsua, Don Gregorio Imperial
Atty. Jorge S. Imperial Mr. Ramon Balana, Mr. Jose Madarieta, and Mr. Jose
Gaya. All the witnesses who testified for the petitioner declared that Don Jesus
was in bright and lively conversation which ran from problems of farming
and the merits of French-made wines. At 1 1:00 o'clock, Don Gregorio made a
remark that it is about time to do what they were there for, and this was
followed by a more or less statement from Jesus, who said: t.hqw
'Preisamente es por lo que he Hamado a ustedes que esten
presentes para ser testigos de rni ultimo voluntad y testamento
que ha sido preparado por el abogado Sr. Gregorio Imperial
segun mis instrucciones cuyo documento tengo aqui conmigo y
encuentro que, despues de lo he leido, esta satisfactoriamente
hecho segun mis instrucciones, Como saben ustedes tengo
cuatro (4) hijos todos egos.' (pp. 43-44, t.s.n., hearing of
December 7, 1967, Sarte.
On request of Don Jesus, all of them moved to the big round table on another
part of the same sala for convenience in signing because there were chairs all
around this table. The will which consisted of nine pages, with a duplicate,

and triplicate was laid on the round table and the signing began, with Atty.
Jorge S. Imperial assisting each person signing by indicating the proper place
where the signature shall be written. Don Jesus, as testator, signed first. After
signing the original and the two other sets, the three sets were then passed to
Mr. Ramon Balana who signed as attesting witness. After Mr. Balana, Mr. Jose
Madarieta signed next as another attesting witness, and when Mr. Madarieta
finished signing all the three sets, the same were passed to Mr. Jose Gaya who
also signed as the third attesting witness. On each of the three sets, Don Jesus
signed ten times, one on the margin of each of the nine pages, and at the
end of the instrument proper. Each of the three attesting witnesses (Balana,
Madarieta and Gaya) signed eleven times on each set, one on the margin of
each of the nine pages, one at the end of the instrument proper and one below
the attestation clause. The original will was marked as Exh. A (or set A); the
duplicate as Exh. K (or set K) and the triplicate of Don Jesus, Mr. Balana, Mr.
Madarieta, and Mr. Gaya were Identified by Mr. Balana, Mr. Madarieta and
Atty. (now Judge) imperial. It was also clearly established that when Don
Jesus signed the will Mr. Balana, Mr. Madarieta, and Mr. Gaya were present
and witnessed said signing, and that when each of these three witnesses was
signing, Don Jesus and the two other attesting witnesses were present and
Witnessing said Signing. The signing by the testator and the attesting
witnesses having been completed, Atty. Jorge S. Imperial as Notary Public
with commission for the entire province of Albay, notarized the wilt and
sealed it with his notarial seat which seal he brought along that morning. After
all the three sets were notarized, they were all given back to Don Jesus who
placed them inside the same folder. At that moment, it was already about
12:30 P.M. and Don Jesus invited all of them to lunch, which invitation was
gladly accepted by all of then-L (pp. 474-480, Joint Record on Appeal in CAG.R. No. 54492-R)
which findings are supported by the evidence, - it is quite difficult to conclude that the same
had not complied with the requirements of Arts. 804- 806 of the New Civil Code. ... (CA
Decision, pp. 13-16, as translated).
This cited portion of the appealed decision accepts as a fact that the findings of the lower court declaring the
contested will as having been executed with all the formal requirements of a valid will, are supported by the
evidence. This finding is conclusive upon this Tribunal and We cannot alter, review or revise the same.
Hence, there is no further need for Us to dwell on the matter as both the lower court and the respondent
appellate court have declared that these are the facts and such facts are fully borne and supported by the
records. We find no error in the conclusion arrived at that the contested will was duly executed in
accordance with law. We rule that the questioned last will and testament of Don Jesus Alsua fully complied
with the formal requirements of the law.
Respondent court, however, denied probate of the will after ,'noting certain details which were a little bit
difficult to reconcile with the ordinary course of things and of life." First was the fact that the spouses Don
Jesus and Do;a Tinay together with their four children Francisco, Pablo, Amparo and Fernando had
executed the Extrajudicial Partition of November 25, 1949 (Exh. A) which divided the conjugal properties of
the spouses between the spouses themselves and the children under the terms and conditions and
dispositions herein before stated and to implement its provisions, Don Jesus and Do;a Tinay subsequently
executed separately their respective holographic wigs both dated January 5, 1955 and codicils dated August
14, 1956 with the same terms and conditions as reproduced herein earlier. Both holographic wills and
codicils having been probated thereafter and upon the death of Do;a Tinay, Don Jesus was appointed
executor of the will and in due time the partition of the properties or estate of Do;a Tinay was approved by
the probate court on July 6, 1960.
The respondent court ruled that the Extrajudicial Partition of November 25, 1949 was an enforceable
contract which was binding on Don Jesus Alsua as the surviving spouse, barring him from violating said
partition agreement, barring him from revoking his holographic will of January 5, 1955 and his codicil of
August 14, 1956, and further barring him from executing his new will and testament of November 14, 1959,
now the subject of the probate proceedings elevated to this Court.
We do not agree with this ruling of the Court of Appeals. We hold that the Extrajudicial Partition of
November 25, 1949 is null and void under Article 1056 in relation to Article 1271 of the old Civil Code
which are applicable hereto. These Articles provide as follows: t.hqw

Art. 1056. If the testator should make a partition of his property by an act inter vivos, or by
will, such partition shall stand in so far as it does not prejudice the legitime of the forced
heirs. ...
Art. 1271. All things, even future ones, which are not excluded from the commerce of man,
may be the subject-matter of contracts.
Nevertheless, no contract may be entered into with respect to future inheritances, except
those the object of which is to make a division inter vivos of an estate, in accordance with
Article 1056.
All services not contrary to law or to good morals may also be the subject- matter of contract.
Article 1056 specifically uses the word "testator" from which the clear intent of the law may be deduced that
the privilege of partitioning one's estate by acts inter vivos is restricted only to one who has made a prior
will or testament. In other words, Article 1056 being an exception cannot be given a wider scope as to
include in the exception any person whether he has made a will or not.
Respondent court citing the same Article concluded that under both the old and new Civil Code, a person
who executes a will is permitted at the same time or a little thereafter or even before as long as he mentions
this fact in the will, to partition his properties pursuant to the provisions of Article 1056 of the old Civil
Code. The court further added that jurisprudence is to the effect that the partition presupposes the
execution of the will that it ratifies or effectuates, citing the case of Legasto vs. Verzosa, 54 Phil. 776. Finally,
respondent court held the opinion that the extrajudicial partition of November 14, 1949 was ratified in the
holographic will executed by Don Jesus on Jan. 5, 1955 and in the codicil of August 14, 1956.
Again, We do not agree with this ruling of the respondent court. In Legasto vs. Verzosa, supra, the Supreme
Court categorically declared the necessity of a prior will before the testator can partition his properties
among his heirs, and We quote the pertinent portions of the decision: t.hqw
The first question to decide in the instant appeal is whether the partition made by Sabina
Almadin of her property among her nieces, the defendants and appellants herein, was valid
and enforceable.
Article 1056 of the Civil Code provides:
Art. 1056. If the testator should make a partition of his property by an act inter vivos, or by
will, such partition shall stand in so far as it does not prejudice the legitime of the forced
heirs.
The Supreme Court of Spain, in a decision rendered on June 13, 1903, laid down the
following doctrine:
Considering that the language of article 1056 cannot be interpreted to mean that a person
may, by acts inter vivos, partition his property referred to in the section wherein said article
is found, without the authority of a testament containing an expression of his last will, or the
authority of law, for, otherwise, a partition thus made would be tantamount to making a will
in a manner not provided for, authorized, nor included in the chapter referring to testaments,
and especially, to the forms thereof, which is entirely different from the legal consequences of
a free disposition made by parents during their lifetime, whereby they give to their children
the whole or a part of their property;
Considering that, inasmuch as the second paragraph of article 1271 makes reference to the
aforesaid article, in providing that no contracts may be entered into with respect to future
inheritances except those the object of which is to make a division inter vivos of the estate in
accordance with article 1056, it is evident that said difference likewise leads to the conclusion
that a partition thus made should be on the basis of a testamentary or legal succession and
should be made in conformity with the fundamental rules thereof and the order of the heirs
entitled to the estate, because neither of the two provisions could be given a wider meaning
or scope than that they simply provide for the division of the estate during the lifetime of the
owner, which, otherwise, would have to be done upon the death of the testator in order to
carry into effect the partition of the estate among the persons interested.
Manresa comments on the same article as follows:
A distinction must be made between the disposition of property and its division; and the
provision of article 1056 authorizing the testator to dispose of his property by acts inter vivos
or by last will, must be understood in accordance with this distinction. The Idea is to divide
the estate among the heirs designated by the testator. This designation constitutes the

disposition of the properties to take effect after his death, and said act must necessarily
appear in the testament because it is the expression of the testator's last will and must be
surrounded by appropriate formalities. Then comes the second part, to wit, the division in
conformity with that disposition, and the testator may make this division in the same will or
in another will, or by an act inter vivos. With these words, the law, in article 1056 as well as
in article 1057, which we shall hereafter examine, makes allusion to the forms or manner of
making the partition and not to the effects thereof, which means that, for purposes of
partition the formal solemnities which must accompany every testament or last will are not
necessary. Neither is it necessary to observe the special for. realities required in case of
donations, because it is not a matter of disposing gratuitously of properties, but of dividing
those which already have been legally disposed of.
It is thus seen that both the Spanish Supreme Court and the learned and authoritative
commentator, Manresa, are of opinion that a testator may, by an act inter vivos, partition his
property, but he must first make a will with all the formalities provided for by law. And it
could not be otherwise, for without a will there can be no testator; when the law, therefore,
speaks of the partition inter vivos made by a testator of his property, it necessarily refers to
that property which he has devised to his heirs. A person who disposes of his property gratis
inter vivos is not called a testator, but a donor. In employing the word "testator," the law
evidently desired to distinguish between one who freely donates his property in life and one
who disposes of it by will to take effect after his death.
We are not in conformity with the holding of the respondent court that the extrajudicial partition of
November 25, 1949 which under the old Civil Code was expressly prohibited as against public policy had
been validly ratified by the holographic will of Don Jesus executed on January 5, 1955 and his codicil of
August 14, 1956. Such a holding of the appellate court that a person who executes a will is permitted to
partition his properties pursuant to the provisions of Article 1056 of the old Civil Code even before
executing his will as long as he mentions this fact in the will, is not warranted under the ruling of Legasto vs.
Verzosa, supra and the commentary of Manresa as quoted above. We rule, therefore, that the respondent
court erred in denying probate to the will of Don Jesus dated November 14, 1959; it erred in holding that
Don Jesus being a party to the extrajudicial partition of 1949 was contractually bound by the provisions
thereof and hence could not revoke his participation therein by the simple expedience of making a new will
with contrary provisions or dispositions. It is an error because the so-called extrajudicial partition of 1949 is
void and inoperative as a partition; neither is it a valid or enforceable contract because it involved future
inheritance; it may only be given effect as a donation inter vivos of specific properties to the heirs made by
the parents.
Considering that the document, the extrajudicial partition of November 25, 1949, contained specific
designation of properties allotted to each child, We rule that there was substantial compliance with the rules
on donations inter vivos under the old Civil Code (Article 633). On the other hand, there could have been no
valid donation to the children of the other half reserved as the free portion of Don Jesus and Do;a Tinay
which, as stated in the deed, was to be divided equally among the children for the simple reason that the
property or properties were not specifically described in the public instrument, an essential requirement
under Article 633 which provides as follows: t.hqw
Art. 633. In order that a donation or real property be valid it must be made by public
instrument in which the property donated must be specifically described and in the amount
of the encumbrances to be assumed by the donee expressed.
The acceptance must be made in the deed of gift or in a separate public writing; but it shall
produce no effect if not made during the lifetime of the donor.
If the acceptance is made by separate public instrument, authentic notice thereof shall be
given the donor, and this proceeding shall be noted in both instruments.
This other half, therefore, remained as the disposable free portion of the spouses which may be disposed of
in such manner that either of the spouses would like in regards to his or her share in such portion,
unencumbered by the provision enjoining the last surviving spouse to give equally to the children what
belongs or-would pertain to him or her. The end result, therefore, is that Don Jesus and Do;a Tinay, in the
Deed of 1949, made to their children valid donations of only one-half of their combined properties which
must be charged against their legitime and cannot anymore be revoked unless inofficious; the other half
remained entirely at the free disposal of the spouses with regards to their respective shares.
Upon the death of Do;a Tinay on October 2, 1959, her share in the free portion was distributed in
accordance with her holographic will dated January 25, 1955 and her codicil dated August 14, 1956. It must
be stressed here that the distribution of her properties was subject to her holographic win and codicil,

independently of the holographic will and codicil of Don Jesus executed by him on the same date. This is
fundamental because otherwise, to consider both wills and codicils jointly would be to circumvent the
prohibition of the Civil Code on joint wills (Art. 818) and secondly because upon the death of Do;a Tinay,
only her estate was being settled, and not that of Don Jesus.
We have carefully examined the provisions of the holographic will and codicil of Do;a Tinay and We find
no indication whatsoever that Do;a Tinay expressly or impliedly instituted both the husband and her
children as heirs to her free portion of her share in the conjugal assets. In her holographic will, mention of
her children as heirs was made in the fourth clause but it only provided that, to wit: t.hqw
Cuatro. Que si yo adquieriese nuevase propiedades despues de otorgado este mi testamento
seran las mismas repartados entre mi esposo o hijos arriba mencionada en el parrafo tercero
su la misma proporcion o sea: la mitad (1/2) para is esposa; y la otra mitad (1/2) para mis
hijos en partes iguales.
For purposes of clarity and convenience, this fourth clause provided that "Should I acquire new properties
after the execution of this testament, the same shall be partitioned among my spouse and above named
children or the children mentioned in above par. 3 in the same proportion, that is, one- half (1/2) to my
spouse; and the other half to my children in equal parts." From the above-quoted provision, the children
would only inherit together with Don Jesus whatever new properties Do;a Tinay would acquire after the
execution of her will.
Likewise, the codicil of Do;a Tinay instituted her husband as sole heir to her share in the free portion of the
conjugal assets, and We quote that part of the codicil: t.hqw
Dejo a mi esposo Jesus Alsua como su legitima y como herencia que se sacara de ni cuenta de
libre disposicion todos aquellos bienes de los que no he dispuesto aun en favor de mis hijos
en la escritura de reparticion precitada y que excedieran de la mitad de gananciales que le
corresponds tal como arriba declare, incluyendo todos aquenos bienes que se adquiriesen por
nosotros despues de otorgado por mi este testamento.
Para el caso de que Dios dispusiera que yo sobreviviera a mi esposo declaro que es mi
voluntad que todas las propiedades de todo genero que me pertenecen y me pudieran
pertenecer, no dispuestas aun en la reparticion, se dividan por igual entre mis herederos
mencionados despues de mi muerte.
Again for purposes of clarity and convenience, the above portion states: t.hqw
I leave to my spouse Don Jesus Alsua as his legitime and as his inheritance the part of the
free portion of my property which have not been allocated in favor of my children in the
Document of Partition aforecited and that which should exceed 1/2 of the conjugal property
of gains that pertains to him as above stated, including all those properties which we shall
acquire after the execution of this document.
In case it should be God's will that I survive my spouse, I hereby declare that it is my will
that any and all kinds of property that pertains to me or would pertain to me, which have not
been disposed of pursuant to the partition, should be divided equally among my abovementioned heirs after my death.
The children, therefore, would only receive equal shares in the remaining estate of Do;a Tinay in the event
that she should be the surviving spouse. To stress the point, Do;a Tinay did not oblige her husband to give
equally to the children, upon his death, all such properties she was bequeathing him.
Considering now the efficacy of Don Jesus' last will and testament executed on November 14, 1959 in view
of Our holding that Do;a Tinay's wig and codicil did not stipulate that Don Jesus will bestow the
properties equally to the children, it follows that all the properties of Do;a Tinay bequeathed to Don Jesus
under her holographic win and codicil became part of Don Jesus' estate unburdened by any condition
obligation or proviso.
Respondents insist that Don Jesus was bound by the extrajudicial partition of November 25, 1949 and had in
fact conformed to said Partition by making a holographic will and codicil with exactly the same provisions
as those of Do;a Tinay, which respondent court sustained. We rule, however, that Don Jesus was not
forever bound thereby for his previous holographic will and codicil as such, would remain revokable at his
discretion. Art. 828 of the new Civil Code is clear: "A win may be revoked by the testator at any time before
his death. Any waiver or restriction of this right is void." There can be no restriction that may be made on
his absolute freedom to revoke his holographic will and codicil previously made. This would still hold true
even if such previous will had as in the case at bar already been probated (Palacios v. Palacios, 106 Phil. 739).
For in the first place, probate only authenticates the will and does not pass upon the efficacy of the

dispositions therein. And secondly, the rights to the succession are transmitted only from the moment of the
death of the decedent (Article 777, New Civil Code). In fine, Don Jesus retained the liberty of disposing of
his property before his death to whomsoever he chose, provided the legitime of the forced heirs are not
prejudiced, which is not herein claimed for it is undisputed that only the free portion of the whole Alsua
estate is being contested.
After clearly establishing that only Don Jesus was named as sole heir instituted to the remaining estate of
Do;a Tinay in her holographic will and codicil resulting in all such properties becoming the properties of
Don Jesus alone, and after clearly pointing out that Don Jesus can, in law, revoke his previous holographic
will and codicil, by making another win expressly cancelling and revoking the former, the next issue for the
Court's resolution is the validity of the provisions of the contested will. Though the law and jurisprudence
are clear that only questions about the extrinsic validity of the will may be entertained by the probate court,
the Court had, on more than one occasion, passed upon the intrinsic validity of a will even before it had
been authenticated. Thus We declared in Nuguid v. Nuguid, 17 SCRA 499: t.hqw
The parties shunted aside the question of whether or not the will should be allowed to
probate. For them, the meat of the case is the intrinsic validity of the wilt Normally this
comes only after the court has declared that the will has been duly authenticated. ...
... If the case were to be remanded for probate of the wilt nothing will be gained. On the
contrary, this litigation win be protracted and for ought that appears in the record, in the
event of probate or if the court rejects the will probability exists that the case win come up
once again before us on the issue of the intrinsic validity or nullity of the wilt Result: waste of
time, effort, expense, plus added anxiety. These are the practical considerations that induce
us to a behalf that we might as well meet head-on the time of the validity of the provisions of
the will in question. ...
The last Will and Testament of Don Jesus executed on November 14, 1959 contained an express revocation
of his holographic wig of January 5, 1955 and the codicil of August 14, 1956; a statement requiring that all of
his properties donated to his children in the Deed of 1949 be collated and taken into account in the partition
of his estate; the institution of all his children as devisees and legatees to certain specific properties; a
statement bequeathing the rest of his properties and all that may be acquired in the future, before his death,
to Pablo and Francesca; and a statement naming Francesca as executrix without bond.
Considering these testamentary provisions, a close scrutiny of the properties distributed to the children
under the Deed of 1949 and those distributed under the contested will of Don Jesus does not show that the
former had in fact been included in the latter. This being so, it must be presumed that the intention of Don
Jesus in his last win was not to revoke the donations already made in the Deed of 1949 but only to
redistribute his remaining estate, or that portion of the conjugal assets totally left to his free disposal and
that which he received as his inheritance from Do;a Tinay. The legitimes of the forced heirs were left
unimpaired, as in fact, not one of said forced heirs claimed or intimated otherwise. The properties that were
disposed of in the contested will belonged wholly to Don Jesus Alsua's free portion and may be diamond of
by him to whomsoever he may choose.
If he now favored Francesca more, as claimed by private respondents, or Pablo as in fact he was, We cannot
and may not sit in judgment upon the motives and sentiments of Don Jesus in doing so. We have clearly
laid down this rule in Bustamante v. Arevalo, 73 Phil. 635, to wit: t.hqw
... nevertheless it would be venturesome for the court to advance its own Idea of a just
distribution of the property in the face of a different mode of disposition so clearly expressed
by the testatrix in the latter will. ...
It would be a dangerous precedent to strain the interpretation of a will in order to effect what
the court believes to be an equitable division of the estate of a deceased person. The only
functions of the courts in these cases is to carry out the intention of the deceased as
manifested in the wig. Once that intention has been determined through a careful reading of
the will or wills, and provided the law on legitimes has not been violated, it is beyond the
place of judicial cognizance to inquire into the fairness or unfairness of any devise or
bequeast. The court should not sit in judgment upon the motives and sentiments of the
testatrix, first, because as already stated, nothing in the law restrained her from disposing of
her property in any manner she desired, and secondly, because there are no adequate means
of ascertaining the inward process of her conscience. She was the sole judge of her own
attitude toward those who expected her bounty. ...
Respondent court, in trying to rationalize the will of Don Jesus which allegedly benefited and favored the
petitioner to the prejudice of the other heirs who would have been entitled to an equal share under the

extrajudicial partition of 1949, faced two alternatives-one, to consider Don Jesus as a man of culture and
honor and would not snow himself to violate the previous agreement, and the other as one whose mental
faculties or his possession of the same had been diminished considering that when the will was executed, he
was already 84 years of age and in view of his weakness and advanced age, the actual administration of his
properties had been left to his assistant Madarieta who, for his part received instructions from Francisco and
her husband, Joseph Betts. According to the court, the better explanation is the latter, which is not legally
tenable. Under Article 799 of the New Civil Code which provides as follows: t.hqw
Art. 799. To be of sound mind, it is not necessary that the testator be in full possession of all
his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by
disease, injury or other cause.
It shall be sufficient if the testator was able at the time of making the will to know the nature
of the estate to be disposed of, the proper objects of his bounty, and the character of the
testamentary act,
The test of testamentary capacity is at the time of the making of the win. Mere weakness of mind or partial
imbecility from disease of body or from age-does not render a person incapable of making a will.
t.hqw
Between the highest degree of soundness of mind and memory which unquestionably carries
with it full testamentary capacity, and that degrees of mental aberration generally known as
insanity or Idiocy, there are numberless degrees of mental capacity or incapacity and while
on one hand it has been held that mere weakness of mind, or partial imbecility from disease
of body, or from age, will not render a person incapable of making a will; a weak or
feebleminded person may make a valid will, provided he has understanding and memory
sufficient to enable him to know what he is about to do and how or to whom he is disposing
of his property. To constitute a sound and disposing mind, it is not necessary that the mind
be unbroken or unimpaired or unshattered by disease or otherwise. It has been held that
testamentary incapacity does not necessarily require that a person shall actually be insane or
of unsound mind. (Bugnao vs. Ubag, 14 Phil. 163).
The Civil Code itself provides under Article 798 that in order to make a will, it is essential that the testator
be of sound mind at the time of its execution, and under Article 800, the law presumes that every person is
of sound mind in the absence of proof to the contrary. In the case at bar, the acceptance by the respondent
court of the findings of fact of the trial court on the due execution of the last win and testament of Don Jesus
has foreclosed any and all claim to the contrary that the will was not executed in accordance with the
requirements of the law. But more than that, gleaned from the quoted portions of the appealed decision, the
described behavior of Don Jesus is not that of a mentally incapacitated person nor one suffering from "senile
dementia" as claimed by private respondents. From these accepted facts, We find that: (a) it was Don Jesus
himself who gave detailed instructions to his lawyer as to how he wanted to divide his properties among
his children by means of a list of his properties should pertain; (b) the semi-final draft of the contested will
prepared by his lawyer w-as even corrected by Don Jesus; (c) on the day of the signing of the will at his
house in Ligao, "Don Jesus was in bright and lively spirits ..., leading in the conversation which ran from
problems of farming and the merits of French-made wines"; (d) the signing of the will by Don Jesus and his
attesting witnesses was made after a statement from Don Jesus of the purpose of their meeting or gathering,
to wit: t.hqw
Precisamente es por lo que he Ilamado a ustedes que eaten presentes para ser testigos de mi
ultima voluntad y testamento que ha sido preparado por el abogado Sr. Gregorio Imperial
segun mis instrucciones cuyo documents tengo aqui con migo y encuentro que, despues de lo
he leido, esta satisfactoriamente hecho segun mis ingtrucciones, Como saben ustedes tengo
cuatro (4) hijos todos ellos.
Clearly then, Don Jesus knew exactly what his actions were and the fun implications thereof.
In rejecting probate of the wilt respondent court further pointed out other details which, in the words of the
decision "are a little bit difficult to reconcile with the ordinary course of things and of fife" such as the fact
that Don Jesus had sought the probate of his will of January 5, 1955 and his codicil of August 14, 1956
during his lifetime but insofar as the will of November 14, 1959 is concerned, he had no intention of seeking
the probate thereof during his lifetime, the alleged redundant and unnecessary proceedings undertaken by
Don Jesus in the properties under question to petitioner Franciso Alsua-Betts when the same properties had
already been bequeathed to her in the will of November 14, 1959 and that "nothing, absolutely nothing,
could be made the basis for finding that Don Jesus Alsua had regarded his other children with less favor,
and that he was more sympathetic to Francisca so as to or forget the former depriving them of benefits

already given to them and rewarding the latter with disproportionate advantages or benefits, to such an
extreme as to violate his previous disposition consecrated in the previous extrajudicial partition, Exh. 8."
We agree with the petitioner that these details which respondent court found difficult to reconcile with the
ordinary course of things and of life are mere conjectures, surmises or speculations which, however, do not
warrant or justify disallowance of the probate of the win of Don Jesus. The fact that Don Jesus did not cause
his will to be probated during his lifetime while his previous holographic win and codicil were duly
probated when he was still alive is a mere speculation which depends entirely on the discretion of Don
Jesus as the testator. The law does not require that a will be probated during the lifetime of the testator and
for not doing so there cannot arise any favorable or unfavorable consequence therefrom. The parties cannot
correctly guess or surmise the motives of the testator and neither can the courts. Such surmise, speculation
or conjecture is no valid and legal ground to reject allowance or disallowance of the wig. The same thing can
be said as to whatever reason Don Jesus had for selling the properties to his daughter Francisca when he
had already assigned the same properties to her in his will. While We can speculate that Don Jesus desired
to have possession of the properties transferred to Francisca after the sale instead of waiting for his death
may be a reasonable explanation or speculation for the act of the testator and yet there is no certainty that
such was actually the reason. This is as good a conjecture as the respondents may offer or as difficult to
accept which respondent court believes. A conjecture is always a conjecture; it can never be admitted as
evidence.
Now, the annulment case. The only issue raised anent the civil case for annulment of the two Deeds of Sale
executed by and between Don Jesus and petitioner Francisco is their validity or nullity. Private respondents
mainly contend that the sales were fictitious or simulated, there having been no actual consideration paid.
They further insist that the issue raised is a question of fact and, therefore, not reviewable in a certiorari
proceeding before the Supreme Court. On the other hand, petitioners herein maintain that it was error for
the respondent court to set aside on appeal the factual findings of the trial court that the two sales were
valid.
It is true that the jurisprudence of this Court in cases brought to Us from the Court of Appeals is limited to
reviewing and revising the errors of law imputed to it, its findings of fact being conclusive; and this same
principle applies even if the Court of Appeals was in disagreement with the lower court as to the weight of
evidence with a consequent reversal of its findings of fact. But what should not be ignored by lawyers and
litigants alike is the more basic principle that the "findings of fact" described as "final" or "conclusive" are
those borne out by the record or those which are based upon substantial evidence. The general rule laid
down by the Supreme Court does not declare the absolute correctness of all the findings of fact made by the
Court of Appeals. These are exceptions to the general rule, where We have reviewed and revised the
findings of fact of the Court of Appeals. Among the exceptions to the rule that findings of fact by the Court
of Appeals cannot be reviewed on appeals by certiorari are:
1. When the conclusion is a finding grounded entirely on speculation, surmises or conjectures (Joaquin vs.
Navarro, 93 Phil. 257);
2. When the inference made is manifestly mistaken, absurd or impossible (Luna vs. Linatok, 74 Phil. 15);
3. Where there is a grave abuse of discretion (Buyco vs. People, 51 O.G. 2927);
4. When the judgment is based on a misapprehension of facts (Cruz vs. Sosing, L-4875, Nov. 27, 1953);
5. When the findings of fact are conflicting (Casica vs. Villaseca, L-9590, April 30, 1957); and
6. When the Court of Appeals, in making its findings, went beyond the issues of the case and the same is
contrary to the admissions of both appellant and appellee (Evangelists vs. Alto Surety & Ins. Co., L-11139,
April 23, 1958; Ramos vs. Pepsi Cola, L-22533, Feb. 9, 1967, 19 SCRA 289).
In the case at bar, We find and so declare that the respondent court's conclusion as to the nullity of the
contested sales was not supported by the evidence on record and adduced during the trial.
Evident from the records are the following documentary evidence: (1) Exhibit U, a deed of sale over
agricultural lands executed on August 26, 1961 by Don Jesus in favor of Francisca for the consideration of
Seventy Thousand Pesos (P70,000.00), which document bears the signature of Don Jesus, not assailed as a
forgery, and the signature of Pablo Alsua as an instrumental witness, again not assailed as a forgery nor
alleged as done thru fraud, force or threat. (2) Exhibit "W", a deed of sale over urban lots executed on
November 16, 1962 for the consideration of Eighty Thousand Pesos (P80,000.00), which document also bears
the signature of Don Jesus, also admittedly not a forgery. (3) Exhibit "F", a document dated August 26, 1961
and signed by Don Jesus and Pablo Alsua as witness, acknowledging receipt of a Bank of Philippine Island
Check No. 0252 in the amount of Seventy Thousand Pesos (P70,000.00) for the sale of 33 parcels of
agricultural land to Francisco under the same date; again, Pablo did not deny the genuineness of his
signature. (4) Exhibit "X", a Bank of the Philippine Islands Check No. D-6979 dated November 26, 1962, in

the amount of P32,644.71, drawn and signed by Francesca, payable to Don Jesus. (5) Exhibit "X-1", a second
Bank of Philippine Islands Check (No. D-6980) also dated November 26, 1962 in the amount of ?47,355.29,
drawn by Francisco and payable to Don Jesus. (6) Exhibit "X-3 " and "X-5 ", endorsements on the back of the
last two checks by Don Jesus, again, his signatures thereon were not assailed. (7) Exhibit "A" (in the
annulment case), a Bureau of Internal Revenue Receipt (No. 2347260) dated November 29, 1962 with a
notation acknowledging the receipt of BPI Check No. D-6980 in the amount of P47,355.29 from Don Jesus
Alsua in payment of Balance of Transfer of Tax Ass. No. EA-35415-19 plus interest. We are convinced and
satisfied from this array of documentary evidence that in fact, Don Jesus sold the subject properties to his
daughter, Francisca for the total consideration of P150,000.00.
The claim of the private respondents that the sales were fictitious and void for being without cause or
consideration is as weak and flimsy as the ground upon which the respondent court upheld said claim on
the basis that there was no need for funds in Don Jesus' old age aside from the speculation that there was
nothing in the evidence that showed what motivated Don Jesus to change his mind as to favor Francesca
and discriminate against the other children. The two contracts of same executed by Don Jesus in favor of
Francesca are evidenced by Exhibits "U" and "W", the genuineness of which were not at all assailed at any
time during this long drawn-out litigation of 15 years standing. That the consideration stated in the
contracts were paid is also sufficiently proved as the receipts thereof by Don Jesus were even signed by one
of the private respondents, Pablo Alsua, as a witness. The latter cannot now deny the payment of the
consideration And even of he now allege that in fact no transfer of money was involved, We find his
allegation belied by Exhibits "X-3 " and "X-5 ", which show that the checks of Francisco made payable to Don
Jesus. were in fact given to Don Jesus as he endorsed them on the back thereof, and most specifically Exhibit
"A" in the annulment case, which proved that Don Jesus actually used Exhibit "XI " to complete payment on
the estate and inheritance tax on the estate of his wife to the Bureau of Internal Revenue.
Private respondents further insist that the sales were fraudulent because of the inadequacy of the given
price. Inadequacy of consideration does not vitiate a contract unless it is proven which in the case at bar was
not, that there was fraud, mistake or undue influence. (Article 1355, New Civil Code). We do not find the
stipulated price as so inadequate to shock the court's conscience, considering that the price paid was much
higher than the assessed value of the subject properties and considering that the sales were effected by a
father to her daughter in which case filial love must be taken into account.
WHEREFORE, IN VIEW OF THE FOREGOING, the decision appealed from is hereby set aside. The
decision of the Court of First Instance Of Albay in Special Proceedings No. 699 and Civil Case No. 3068 is
hereby reinstated, with costs against respondents. SO ORDERED.
G.R. No. L-37453 May 25, 1979
RIZALINA GABRIEL GONZALES, petitioner,
vs.
HONORABLE COURT OF APPEALS and LUTGARDA SANTIAGO, respondents.
Francisco D. Rilloraza, Jr. for petitioners.
Angel A. Sison for private respondent.
GUERRERO, J.:
This is a petition for review of the decision of the Court of Appeals, First Division, 1 promulgated on May 4,
1973 in CA G.R. No. 36523-R which reversed the decision of the Court of First Instance of Rizal dated
December 15, 1964 and allowed the probate of the last will and testament of the deceased Isabel Gabriel. *
It appears that on June 24, 1961, herein private respondent Lutgarda Santiago filed a petition with the Court
of First Instance of Rizal docketed as Special Proceedings No. 3617, for the probate of a will alleged to have
been executed by the deceased Isabel Gabriel and designating therein petitioner as the principal beneficiary
and executrix.
There is no dispute in the records that the late Isabel Andres Gabriel died as a widow and without issue in
the municipality of Navotas, province of Rizal her place of residence, on June 7, 1961 at the age of eightyfive (85), having been born in 1876. It is likewise not controverted that herein private respondent Lutgarda
Santiago and petitioner Rizalina Gabriel Gonzales are nieces of the deceased, and that private respondent,
with her husband and children, lived with the deceased at the latters residence prior an- d up to the time of
her death.
The will submitted for probate, Exhibit "F", which is typewritten and in Tagalog, appears to have been
executed in Manila on the 15th day of April, 1961, or barely two (2) months prior to the death of Isabel
Gabriel. It consists of five (5) pages, including the pages whereon the attestation clause and the

acknowledgment of the notary public were written. The signatures of the deceased Isabel Gabriel appear at
the end of the will on page four and at the left margin of all the pages. The attestation clause, which is found
on page four, reads as follows:
PATUNAY NG MGA SAKSI
Kaming mga nakalagdang mga saksi o testigo na ang aming mga tinitirahan ay nakasulat sa
gawing kanan at kahilira ng aming mga pangalan sa ibaba nito, ay pagpapatutuo na
ipinakilala ipinaalam at ipinahayag sa amin ni Isabel Gabriel na ang kasulatang ito na
binubuo ng Limang Dahon (Five Pages) pati na ang dahong ito, na siya niyang
TESTAMENTO AT HULING HABILIN, ngayong ika 15 ng Abril, 1961, ay nilagdaan ng
nasabing testadora na si Isabel Gabriel ang nasabing testamento sa ibaba o ilalim ng
kasulatan na nasa ika apat na dahon (page four) at nasa itaas ng patunay naming ito, at sa
kaliwang panig ng lahat at bawat dahon (and on the left hand margin of each and every
page), sa harap ng lahat at bawat isa sa amin, at kami namang mga saksi ay lumagda sa
harap ng nasabing testadora, at sa harap ng lahat at bawat isa sa amin, sa ilalim ng patunay
ng mga saksi at sa kaliwang panig ng lahat at bawa't dahon ng testamentong ito.
At the bottom thereof, under the heading "Pangalan", are written the signatures of Matilde D. Orobia, Celso
D. Gimpaya and Maria R. Gimpaya, and opposite the same, under the heading "Tirahan", are their
respective places of residence, 961 Highway 54, Philamlife, for Miss Orobia, and 12 Dagala St., Navotas,
Rizal, for the two Gimpayas. Their signatures also appear on the left margin of all the other pages. The WW
is paged by typewritten words as follows: "Unang Dahon" and underneath "(Page One)", "Ikalawang
Dahon" and underneath "(Page Two)", etc., appearing at the top of each page.
The will itself provides that the testatrix desired to be buried in the Catholic Cemetery of Navotas, Rizal in
accordance with the rites of the Roman Catholic Church, all expenses to be paid from her estate; that all her
obligations, if any, be paid; that legacies in specified amounts be given to her sister, Praxides Gabriel Vda.
de Santiago, her brother Santiago Gabriel, and her nephews and nieces, Benjamin, Salud, Rizalina (herein
petitioner), Victoria, Ester, Andres, all surnamed Gabriel, and Evangeline, Rudyardo Rosa, Andrea, Marcial,
Numancia, Verena an surnamed Santiago. To herein private respondent Lutgarda Santiago, who was
described in the will by the testatrix as "aking mahal na pamangkin na aking pinalaki, inalagaan at minahal
na katulad ng isang tunay na anak" and named as universal heir and executor, were bequeathed all
properties and estate, real or personal already acquired, or to be acquired, in her testatrix name, after
satisfying the expenses, debts and legacies as aforementioned.
The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner, assailing the document
purporting to be the will of the deceased on the following grounds:
1. that the same is not genuine; and in the alternative
2. that the same was not executed and attested as required by law;
3. that, at the time of the alleged execution of the purported wilt the decedent lacked
testamentary capacity due to old age and sickness; and in the second alternative
4. That the purported WW was procured through undue and improper pressure and
influence on the part of the principal beneficiary, and/or of some other person for her
benefit.
Lutgarda Santiago filed her Answer to the Opposition on February 1, 1962. After trial, the court a quo
rendered judgment, the summary and dispositive portions of which read:
Passing in summary upon the grounds advanced by the oppositor, this Court finds:
1. That there is no iota of evidence to support the contentio that the purported will of the
deceased was procured through undue and improper pressure and influence on the part of
the petitioner, or of some other person for her benefit;
2. That there is insufficient evidence to sustain the contention that at the time of the alleged
execution of the purported will, the deceased lacked testamentary capacity due to old age
and sickness;
3. That sufficient and abundant evidence warrants conclusively the fact that the purported
will of the deceased was not executed and attested as required by law;
4. That the evidence is likewise conclusive that the document presented for probate, Exhibit
'F' is not the purported win allegedly dictated by the deceased, executed and signed by her,
and attested by her three attesting witnesses on April 15, 1961.

WHEREFORE, Exhibit "F", the document presented for probate as the last wig and testament
of the deceased Isabel Gabriel is here by DISALLOWED.
From this judgment of disallowance, Lutgarda Santiago appealed to respondent Court, hence, the only issue
decided on appeal was whether or not the will in question was executed and attested as required by law.
The Court of Appeals, upon consideration of the evidence adduced by both parties, rendered the decision
now under review, holding that the will in question was signed and executed by the deceased Isabel Gabriel
on April 15, 1961 in the presence of the three attesting witnesses, Matilde Orobia, Celso Gimpaya and Maria
Gimpaya, signing and witnessing the document in the presence of the deceased and of each other as
required by law, hence allow ed probate.
Oppositor Rizalina Gabriel Gonzales moved for reconsideration 3 of the aforesaid decision and such motion
was opposed 4 by petitioner-appellant Lutgarda Santiago. Thereafter. parties submitted their respective
Memoranda, 5 and on August 28, 1973, respondent Court, Former Special First Division, by Resolution 6
denied the motion for reconsideration stating that:
The oppositor-appellee contends that the preponderance of evidence shows that the
supposed last wig and testament of Isabel Gabriel was not executed in accordance with law
because the same was signed on several occasions, that the testatrix did not sign the will in
the presence of all the instrumental witnesses did not sign the will in the presence of each
other.
The resolution of the factual issue raised in the motion for reconsideration hinges on the
appreciation of the evidence. We have carefully re-examined the oral and documentary
evidence of record, There is no reason to alter the findings of fact in the decision of this Court
sought to be set aside. 7
In her petition before this Court, oppositor Rizalina Gabriel Gonzales contends that respondent Court
abused its discretion and/or acted without or in excess of its jurisdiction in reverssing the findings of fact
and conclusions of the trial court. The Court, after deliberating on the petition but without giving due
course resolved, in the Resolution dated Oct. 11, 1973 to require the respondents to comment thereon, which
comment was filed on Nov. 14, 1973. Upon consideration of the allegations, the issues raised and the
arguments adduced in the petition, as well as the Comment 8 of private respondent thereon, We denied the
petition by Resolution on November 26, 1973, 9 the question raised being factual and for insufficient
showing that the findings of fact by respondent Court were unsupported by substantial evidence.
Subsequently, or on December 17, 1973, petitioner Rim Gabriel Goes fried a Motion for Reconsideration 10
which private respondent answered by way of her Comment or Opposition 11 filed on January 15, 1974. A
Reply and Rejoinder to Reply followed. Finally, on March 27, 1974, We resolved to give due course to the
petition.
The petitioner in her brief makes the following assignment of errors:
I. The respondent Court of Appeals erred in holding that the document, Exhibit "F" was executed and
attested as required by law when there was absolutely no proof that the three instrumental witnesses were
credible witness
II. The Court of Appeals erred in reversing the finding of the lower court that the preparation and execution
of the win Exhibit "F", was unexpected and coincidental.
III. The Court of Appeals erred in finding that Atty, Paraiso was not previously furnished with the names
and residence certificates of the witnesses as to enable him to type such data into the document Exhibit "F".
IV. The Court of Appeals erred in holding that the fact that the three typewritten lines under the
typewritten words "Pangalan" and "Tinitirahan" were left blank shows beyond cavil that the three attesting
witnesses were all present in the same occasion.
V. The Court of Appeals erred in reversing the trial court's finding that it was incredible that Isabel Gabriel
could have dictated the wilt Exhibit "F , without any note or document, to Atty. Paraiso.
VI. The Court of Appeals erred in reversing the finding of the trial court that Matilde Orobia was not
physically present when the Will Exhibit "F" was allegedly signed on April 15, 1961 by the deceased Isabel
Gabriel and the other witnesses Celso Gimpaya and Maria Gimpaya.
VII. The Court of Appeals erred in holding that the trial court gave undue importance to the picture takings
as proof that the win was improperly executed.
VIII. The Court of Appeals erred in holding that the grave contradictions, evasions, and misrepresentations
of witnesses (subscribing and notary) presented by the petitioner had been explained away, and that the
trial court erred in rejecting said testimonies.

IX. The Court of Appeals acted in excess of its appellate jurisdiction or has so far departed from the accepted
and usual course of judicial proceedings, as to call for an exercise of the power of supervision.
X. The Court of Appeals erred in reversing the decision of the trial court and admitting to probate Exhibit
"F", the alleged last will and testament of the deceased Isabel Gabriel.
It will be noted from the above assignments of errors that the same are substantially factual in character and
content. Hence, at the very outset, We must again state the oft-repeated and well-established rule that in this
jurisdiction, the factual findings of the Court of Appeals are not reviewable, the same being binding and
conclusive on this Court. This rule has been stated and reiterated in a long line of cases enumerated in Chan
vs. CA (L-27488, June 30, 1970, 33 SCRA 737, 743) 12 and Tapas vs. CA (L-22202, February 27; 1976, 69 SCRA
393), 13 and in the more recent cases of Baptisia vs. Carillo and CA (L32192, July 30, 1976, 72 SCRA 214, 217)
and Vda. de Catindig vs. Heirs of Catalina Roque (L-25777, November 26, 1976, 74 SCRA 83, 88). In the case of
Chan vs. CA, this Court said:
... from Guico v. Mayuga, a 1936 decision, the opinion being penned by the then Justice Recto, it has been
well-settled that the jurisdiction of tills Court in cases brought to us from the Court of Appeals is limited to
reviewing and revising the errors of law imputed to it, its findings of fact being conclusive. More
specifically, in a decision exactly a month later, this Court, speaking through the then Justice Laurel, it was
held that the same principle is applicable, even if the Court of Appeals was in disagreement with the lower
court as to the weight of the evidence with a consequent reversal of its findings of fact ...
Stated otherwise, findings of facts by the Court of Appeals, when supported by substantive evidence are not
reviewable on appeal by certiorari. Said findings of the appellate court are final and cannot be disturbed by
Us particularly because its premises are borne out by the record or based upon substantial evidence and
what is more, when such findings are correct. Assignments of errors involving factual issues cannot be
ventilated in a review of the decision of the Court of Appeals because only legal questions may be raised.
The Supreme Court is not at liberty to alter or modify the facts as set forth in the decision of the Court of
Appeals sought to be reversed. Where the findings of the Court of Appeals are contrary to those of the trial
court, a minute scrutiny by the Supreme Court is in order, and resort to duly-proven evidence becomes
necessary. The general rule We have thus stated above is not without some recognized exceptions.
Having laid down the above legal precepts as Our foundation, We now proceed to consider petitioner's
assignments of errors.
Petitioner, in her first assignment, contends that the respondent Court of Appeals erred in holding that the
document, Exhibit "F", was executed and attested as required by law when there was absolutely no proof
that the three instrumental witnesses were credible witnesses. She argues that the require. ment in Article
806, Civil Code, that the witnesses must be credible is an absolute requirement which must be complied
with before an alleged last will and testament may be admitted to probate and that to be a credible witness,
there must be evidence on record that the witness has a good standing in his community, or that he is
honest and upright, or reputed to be trustworthy and reliable. According to petitioner, unless the
qualifications of the witness are first established, his testimony may not be favorably considered. Petitioner
contends that the term "credible" is not synonymous with "competent" for a witness may be competent
under Article 820 and 821 of the Civil Code and still not be credible as required by Article 805 of the same
Code. It is further urged that the term "credible" as used in the Civil Code should receive the same settled
and well- known meaning it has under the Naturalization Law, the latter being a kindred legislation with
the Civil Code provisions on wigs with respect to the qualifications of witnesses.
We find no merit to petitioner's first assignment of error. Article 820 of the Civil Code provides the
qualifications of a witness to the execution of wills while Article 821 sets forth the disqualification from
being a witness to a win. These Articles state:
Art. 820. Any person of sound mind and of the age of eighteen years or more, and not blind,
deaf or dumb, and able to read and write, may be a witness to the execution of a will
mentioned in article 806 of this Code. "Art. 821. The following are disqualified from being
witnesses to a will:
(1) Any person not domiciled in the Philippines,
(2) Those who have been convicted of falsification of a document, perjury or false testimony.
Under the law, there is no mandatory requirement that the witness testify initially or at any time during the
trial as to his good standing in the community, his reputation for trustworthythiness and reliableness, his
honesty and uprightness in order that his testimony may be believed and accepted by the trial court. It is
enough that the qualifications enumerated in Article 820 of the Civil Code are complied with, such that the
soundness of his mind can be shown by or deduced from his answers to the questions propounded to him,
that his age (18 years or more) is shown from his appearance, testimony , or competently proved otherwise,

as well as the fact that he is not blind, deaf or dumb and that he is able to read and write to the satisfaction
of the Court, and that he has none of the disqualifications under Article 821 of the Civil Code. We reject
petitioner's contention that it must first be established in the record the good standing of the witness in the
community, his reputation for trustworthiness and reliableness, his honesty and uprightness, because such
attributes are presumed of the witness unless the contrary is proved otherwise by the opposing party.
We also reject as without merit petitioner's contention that the term "credible" as used in the Civil Code
should be given the same meaning it has under the Naturalization Law where the law is mandatory that the
petition for naturalization must be supported by two character witnesses who must prove their good
standing in the community, reputation for trustworthiness and reliableness, their honesty and uprightness.
The two witnesses in a petition for naturalization are character witnesses in that being citizens of the
Philippines, they personally know the petitioner to be a resident of the Philippines for the period of time
required by the Act and a person of good repute and morally irreproachable and that said petitioner has in
their opinion all the qualifications necessary to become a citizen of the Philippines and is not in any way
disqualified under the provisions of the Naturalization Law (Section 7, Commonwealth Act No. 473 as
amended).
In probate proceedings, the instrumental witnesses are not character witnesses for they merely attest the
execution of a will or testament and affirm the formalities attendant to said execution. And We agree with
the respondent that the rulings laid down in the cases cited by petitioner concerning character witnesses in
naturalization proceedings are not applicable to instrumental witnesses to wills executed under the Civil
Code of the Philippines.
In the case at bar, the finding that each and everyone of the three instrumental witnesses, namely, Matilde
Orobia, Celso Gimpaya and Maria Gimpaya, are competent and credible is satisfactorily supported by the
evidence as found by the respondent Court of Appeals, which findings of fact this Tribunal is bound to
accept and rely upon. Moreover, petitioner has not pointed to any disqualification of any of the said
witnesses, much less has it been shown that anyone of them is below 18 years of age, of unsound mind, deaf
or dumb, or cannot read or write.
It is true that under Article 805 of the New Civil Code, 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, While the petitioner submits that Article 820 and 821 of
the New Civil Code speak of the competency of a witness due to his qualifications under the first Article and
none of the disqualifications under the second Article, whereas Article 805 requires the attestation of three
or more credible witnesses, petitioner concludes that the term credible requires something more than just
being competent and, therefore, a witness in addition to being competent under Articles 820 and 821 must
also be a credible witness under Article 805.
Petitioner cites American authorities that competency and credibility of a witness are not synonymous
terms and one may be a competent witness and yet not a credible one. She exacerbates that there is no
evidence on record to show that the instrumental witnesses are credible in themselves, that is, that they are
of good standing in the community since one was a family driver by profession and the second the wife of
the driver, a housekeeper. It is true that Celso Gimpaya was the driver of the testatrix and his wife Maria
Gimpaya, merely a housekeeper, and that Matilde Orobia was a piano teacher to a grandchild of the
testatrix But the relation of employer and employee much less the humble or financial position of a person
do not disqualify him to be a competent testamentary witness. (Molo Pekson and Perez Nable vs. Tanchuco,
et al., 100 Phil. 344; Testate Estate of Raymundo, Off. Gaz., March 18,1941, p. 788).
Private respondent maintains that the qualifications of the three or more credible witnesses mentioned in
Article 805 of the Civil Code are those mentioned in Article 820 of the same Code, this being obvious from
that portion of Article 820 which says "may be Q witness to the execution of a will mentioned in Article 805
of this Code," and cites authorities that the word "credible" insofar as witnesses to a will are concerned
simply means " competent." Thus, in the case of Suntay vs. Suntay, 95 Phil. 500, the Supreme Court held that
"Granting that a will was duly executed and that it was in existence at the time of, and not revoked before,
the death of the testator, still the provisions of the lost wig must be clearly and distinctly proved by at least
two credible witnesses. 'Credible witnesses' mean competent witnesses and not those who testify to facts from or
upon hearsay. " emphasis supplied).
In Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344, the Supreme Court held that "Section 620 of
the same Code of Civil Procedure provides that any person of sound mind, and of the age of eighteen years
or more, and not blind, deaf, or dumb and able to read and write, may be a witness to the execution of a
will. This same provision is reproduced in our New Civil Code of 1950, under Art. 820. The relation of
employer and employee, or being a relative to the beneficiary in a win, does not disqualify one to be a

witness to a will. The main qualification of a witness in the attestation of wills, if other qualifications as to
age, mental capacity and literacy are present, is that said witness must be credible, that is to say, his
testimony may be entitled to credence. There is a long line of authorities on this point, a few of which we
may cite:
A 'credible witness is one who is not is not to testify by mental incapacity, crime, or other
cause. Historical Soc of Dauphin County vs. Kelker 74 A. 619, 226 Pix 16, 134 Am. St. Rep.
1010. (Words and Phrases, Vol. 10, p. 340).
As construed by the common law, a 'credible witness' to a will means a 'competent witness.'
Appeal of Clark, 95 A. 517, 114 Me. 105, Ann. Cas. 1917A, 837. (lbid, p. 341).
Expression 'credible witness' in relation to attestation of wins means 'competent witness that
is, one competent under the law to testify to fact of execution of will. Vernon's Ann. Civ St.
art. 8283. Moos vs. First State Bank of Uvalde, Tex . Civ. App. 60 S.W. 2nd 888, 889. (Ibid, p. 342)
The term 'credible', used in the statute of wills requiring that a will shall be attested by two
credible witnesses means competent; witnesses who, at the time of attesting the will, are
legally competent to testify, in a court of justice, to the facts attested by subscribing the will,
the competency being determined as of the date of the execution of the will and not of the
timr it is offered for probate, Smith vs. Goodell 101 N.E. 255, 256, 258 111. 145. (Ibid.)
Credible witnesses as used in the statute relating to wills, means competent witnesses that
is, such persons as are not legally disqualified from testifying in courts of justice, by reason of
mental incapacity, interest, or the commission of crimes, or other cause excluding them from
testifying generally, or rendering them incompetent in respect of the particular subject matter
or in the particular suit. Hill vs. Chicago Title & Trust co 152 N.E. 545, 546, 322 111. 42. (Ibid.
p, 343)
In the strict sense, the competency of a person to be an instrumental witness to a will is determined by the
statute, that is Art. 820 and 821, Civil Code, whereas his credibility depends On the appreciation of his
testimony and arises from the belief and conclusion of the Court that said witness is telling the truth. Thus,
in the case of Vda. de Aroyo v. El Beaterio del Santissimo Rosario de Molo, No. L-22005, May 3, 1968, the
Supreme Court held and ruled that: "Competency as a witness is one thing, and it is another to be a credible
witness, so credible that the Court must accept what he says. Trial courts may allow a person to testify as a
witness upon a given matter because he is competent, but may thereafter decide whether to believe or not to
believe his testimony." In fine, We state the rule that the instrumental witnesses in Order to be competent
must be shown to have the qualifications under Article 820 of the Civil Code and none of the
disqualifications under Article 821 and for their testimony to be credible, that is worthy of belief and
entitled to credence, it is not mandatory that evidence be first established on record that the witnesses have
a good standing in the community or that they are honest and upright or reputed to be trustworthy and
reliable, for a person is presumed to be such unless the contrary is established otherwise. In other words, the
instrumental witnesses must be competent and their testimonies must be credible before the court allows
the probate of the will they have attested. We, therefore, reject petitioner's position that it was fatal for
respondent not to have introduced prior and independent proof of the fact that the witnesses were "credible
witnesses that is, that they have a good standing in the community and reputed to be trustworthy and
reliable.
Under the second, third, fourth, fifth, sixth, seventh and eighth assignments of errors, petitioner disputes
the findings of fact of the respondent court in finding that the preparation and execution of the will was
expected and not coincidental, in finding that Atty. Paraiso was not previously furnished with the names
and residence certificates of the witnesses as to enable him to type such data into the document Exhibit "F",
in holding that the fact that the three typewritten lines under the typewritten words "pangalan" and
"tinitirahan" were left blank shows beyond cavil that the three attesting witnesses were all present in the
same occasion, in holding credible that Isabel Gabriel could have dictated the will without note or
document to Atty. Paraiso, in holding that Matilde Orobia was physically present when the will was signed
on April 15, 1961 by the deceased Isabel Gabriel and the other witnesses Celso Gimpaya and Maria
Gimpaya, in holding that the trial court gave undue importance to the picture takings as proof that the will
was improperly executed, and in holding that the grave contradictions, evasions and misrepresentations of
the witnesses (subscribing and notary) presented by the petitioner had been explained away.
Since the above errors are factual We must repeat what We have previously laid down that the findings of
fact of the appellate court are binding and controlling which We cannot review, subject to certain exceptions
which We win consider and discuss hereinafter. We are convinced that the appellate court's findings are
sufficiently justified and supported by the evidence on record. Thus, the alleged unnaturalness
characterizing the trip of the testatrix to the office of Atty. Paraiso and bringing all the witnesses without

previous appointment for the preparation and execution of the win and that it was coincidental that Atty.
Paraiso was available at the moment impugns the finding of the Court of Appeals that although Atty.
Paraiso admitted the visit of Isabel Gabriel and of her companions to his office on April 15, 1961 was
unexpected as there was no prior appointment with him, but he explained that he was available for any
business transaction on that day and that Isabel Gabriel had earlier requested him to help her prepare her
will. The finding of the appellate court is amply based on the testimony of Celso Gimpaya that he was not
only informed on the morning of the day that he witnessed the will but that it was the third time when
Isabel Gabriel told him that he was going to witness the making of her will, as well as the testimony of
Maria Gimpaya that she was called by her husband Celso Gimpaya to proceed to Isabel Gabriel's house
which was nearby and from said house, they left in a car to the lawyer's office, which testimonies are recited
in the respondent Court's decision.
The respondent Court further found the following facts: that Celso Gimpaya and his wife Maria Gimpaya
obtained residence certificates a few days before Exhibit "F" was executed. Celso Gimpaya's residence
certificate No. A-5114942 was issued at Navotas, Rizal on April 13, 1961 while Maria Gimpaya's residence
certificate No. A-5114974 was issued also at Navotas, Rizal on April 14, 1961. The respondent Court
correctly observed that there was nothing surprising in these facts and that the securing of these residence
certificates two days and one day, respectively, before the execution of the will on April 15, 1961, far from
showing an amazing coincidence, reveals that the spouses were earlier notified that they would be
witnesses to the execution of Isabel Gabriel's will.
We also agree with the respondent Court's conclusion that the excursion to the office of Atty. Paraiso was
planned by the deceased, which conclusion was correctly drawn from the testimony of the Gimpaya
spouses that they started from the Navotas residence of the deceased with a photographer and Isabel
Gabriel herself, then they proceeded by car to Matilde Orobia's house in Philamlife, Quezon City to fetch
her and from there, all the three witnesses (the Gimpayas and Orobia) passed by a place where Isabel
Gabriel stayed for about ten to fifteen minutes at the clinic of Dr. Chikiamco before they proceeded to Atty.
Cipriano Paraiso's office.
It is also evident from the records, as testified to by Atty. Paraiso, that previous to the day that. the will was
executed on April 15, 1961, Isabel Gabriel had requested him to help her in the execution of her will and that
he told her that if she really wanted to execute her will, she should bring with her at least the Mayor of
Navotas, Rizal and a Councilor to be her witnesses and that he (Atty. Paraiso) wanted a medical certificate
from a physician notwithstanding the fact that he believed her to be of sound and disposition mind. From
this evidence, the appellate court rightly concluded, thus: "It is, therefore, clear that the presence of Isabel
Gabriel and her witnesses Matilde Orobia, Celso Gimpaya and Maria Gimpaya including the photographer
in the law office of Atty. Paraiso was not coincidental as their gathering was pre-arranged by Isabel Gabriel
herself."
As to the appellate court's finding that Atty. Paraiso was not previously furnished with the names and
residence certificates of the witnesses as to enable him to type such data into the document Exhibit ' L which
the petitioner assails as contradictory and irreconcilable with the statement of the Court that Atty. Paraiso
was handed a list (containing the names of the witnesses and their respective residence certificates)
immediately upon their arrival in the law office by Isabel Gabriel and this was corroborated by Atty. Paraiso
himself who testified that it was only on said occasion that he received such list from Isabel Gabriel, We
cannot agree with petitioner's contention. We find no contradiction for the, respondent Court held that on
the occasion of the will making on April 15, 1961, the list was given immediately to Atty. Paraiso and that
no such list was given the lawyer in any previous occasion or date prior to April 15, 1961.
But whether Atty. Paraiso was previously furnished with the names and residence certificates of the
witnesses on a prior occasion or on the very occasion and date in April 15, 1961 when the will was executed,
is of no moment for such data appear in the notarial acknowledgment of Notary Public Cipriano Paraiso,
subscribed and sworn to by the witnesses on April 15, 1961 following the attestation clause duly executed
and signed on the same occasion, April 15, 1961. And since Exhibit "F" is a notarial will duly acknowledged
by the testatrix and the witnesses before a notary public, the same is a public document executed and
attested through the intervention of the notary public and as such public document is evidence of the facts
in clear, unequivocal manner therein expressed. It has in its favor the presumption of regularity. To
contradict all these, there must be evidence that is clear, convincing and more than merely preponderant.
(Yturalde vs. Azurin, 28 SCRA 407). We find no such evidence pointed by petitioner in the case at bar.
Likewise, the conclusion of the Court of Appeals in holding that the fact that the three typewritten lines
under the typewritten words "pangalan ' and "tinitirahan" were left blank shows beyond cavil that the three
attesting witnesses were all present in the same occasion merits Our approval because tills conclusion is
supported and borne out by the evidence found by the appellate court, thus: "On page 5 of Exhibit "F",
beneath the typewritten words "names", "Res. Tax Cert. date issued" and place issued the only name of

Isabel Gabriel with Residence Tax certificate No. A-5113274 issued on February 24, 1961 at Navotas Rizal
appears to be in typewritten form while the names, residence tax certificate numbers, dates and places of
issuance of said certificates pertaining to the three (3) witnesses were personally handwritten by Atty.
Paraiso. Again, this coincides with Atty. Paraiso's even the sale must be made to close relatives; and the
seventh was the appointment of the appellant Santiago as executrix of the will without bond. The technical
description of the properties in paragraph 5 of Exhibit F was not given and the numbers of the certificates of
title were only supplied by Atty. Paraiso. "
It is true that in one disposition, the numbers of the Torrens titles of the properties disposed and the docket
number of a special proceeding are indicated which Atty. Paraiso candidly admitted were supplied by him,
whereupon petitioner contends that it was incredible that Isabel Gabriel could have dictated the will Exhibit
"F" without any note or document to Atty. Paraiso, considering that Isabel Gabriel was an old and sickly
woman more than eighty-one years old and had been suffering from a brain injury caused by two severe
blows at her head and died of terminal cancer a few weeks after the execution of Exhibit "F". While we can
rule that this is a finding of fact which is within the competency of the respondent appellate court in
determining the testamentary capacity of the testatrix and is, therefore, beyond Our power to revise and
review, We nevertheless hold that the conclusion reached by the Court of Appeals that the testatrix dictated
her will without any note or memorandum appears to be fully supported by the following facts or evidence
appearing on record. Thus, Isabel Gabriel, despite her age, was particularly active in her business affairs as
she actively managed the affairs of the movie business ISABELITA Theater, paying the aparatistas herself
until June 4, 1961, 3 days before her death. She was the widow of the late Eligio Naval, former Governor of
Rizal Province and acted as coadministratrix in the Intestate Estate of her deceased husband Eligio Naval.
The text of the win was in Tagalog, a dialect known and understood by her and in the light of all the
circumstances, We agree with the respondent Court that the testatrix dictated her will without any note or
memorandum, a fact unanimously testified to by the three attesting witnesses and the notary public himself.
Petitioner's sixth assignment of error is also bereft of merit. The evidence, both testimonial and
documentary is, according to the respondent court, overwhelming that Matilde Orobia was physically
present when the will was signed on April 15, 1961 by the testatrix and the other two witnesses, Celso
Gimpaya and Maria Gimpaya. Such factual finding of the appellate court is very clear, thus: "On the
contrary, the record is replete with proof that Matilde Orobia was physically present when the will was
signed by Isabel Gabriel on April '15, 1961 along with her co-witnesses Celso Gimpaya and Maria Gimpaya.
The trial court's conclusion that Orobia's admission that she gave piano lessons to the child of the appellant
on Wednesdays and Saturdays and that April 15, 1961 happened to be a Saturday for which reason Orobia
could not have been present to witness the will on that day is purely conjectural. Witness Orobia did not
admit having given piano lessons to the appellant's child every Wednesday and Saturday without fail. It is
highly probable that even if April 15, 1961 were a Saturday, she gave no piano lessons on that day for which
reason she could have witnessed the execution of the will. Orobia spoke of occasions when she missed
giving piano lessons and had to make up for the same. Anyway, her presence at the law office of Atty.
Paraiso was in the morning of April 15, 1961 and there was nothing to preclude her from giving piano
lessons on the afternoon of the same day in Navotas, Rizal."
In addition to the testimony of Matilde Orobia, Celso Gimpaya and Maria Gimpaya that Matilde was
present on April 15, 1961 and that she signed the attestation clause to the will and on the left-hand margin
of each of the pages of the will, the documentary evidence which is the will itself, the attestation clause and
the notarial acknowledgment overwhelmingly and convincingly prove such fact that Matilde Orobia was
present on that day of April 15, 1961 and that she witnessed the will by signing her name thereon and
acknowledged the same before the notary public, Atty. Cipriano P. Paraiso. The attestation clause which
Matilde Orobia signed is the best evidence as to the date of signing because it preserves in permanent form
a recital of all the material facts attending the execution of the will. This is the very purpose of the
attestation clause which 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 in the memory of the subscribing witnesses, or
other casualty they may still be proved. (Thompson on Wills, 2nd ed., Sec. 132; Leynez vs. Leynez, 68 Phil.
745).
As to the seventh error assigned by petitioner faulting the Court of Appeals in holding that the trial court
gave undue importance to the picture-takings as proof that the win was improperly executed, We agree
with the reasoning of the respondent court that: "Matilde Orobia's Identification of the photographer as
"Cesar Mendoza", contrary to what the other two witnesses (Celso and Maria Gimpaya) and Atty. Paraiso
said that the photographer was Benjamin Cifra, Jr., is at worst a minor mistake attributable to lapse of time.
The law does not require a photographer for the execution and attestation of the will. The fact that Miss
Orobia mistakenly Identified the photographer as Cesar Mendoza scarcely detracts from her testimony that
she was present when the will was signed because what matters here is not the photographer but the
photograph taken which clearly portrays Matilde Orobia herself, her co-witnesses Celso Gimpaya. " Further,

the respondent Court correctly held: "The trial court gave undue importance to the picture takings, jumping
therefrom to the conclusion that the will was improperly executed. The evidence however, heavily points to
only one occasion of the execution of the will on April 15, 1961 which was witnessed by Matilde Orobia,
Celso Gimpaya and Maria Gimpaya. These witnesses were quite emphatic and positive when they spoke of
this occasion. Hence, their Identification of some photographs wherein they all appeared along with Isabel
Gabriel and Atty. Paraiso was superfluous."
Continuing, the respondent Court declared: "It is true that the second picture-taking was disclosed at the
cross examination of Celso Gimpaya. But this was explained by Atty. Paraiso as a reenactment of the first
incident upon the insistence of Isabel Gabriel. Such reenactment where Matilde Orobia was admittedly no
longer present was wholly unnecessary if not pointless. What was important was that the will was duly
executed and witnessed on the first occasion on April 15, 1961 , " and We agree with the Court's
rationalization in conformity with logic, law and jurisprudence which do not require picture-taking as one
of the legal requisites for the execution or probate of a will.
Petitioner points to alleged grave contradictions, evasions and misrepresentations of witnesses in their
respective testimonies before the trial court. On the other hand, the respondent Court of Appeals held that
said contradictions, evasions and misrepresentations had been explained away. Such discrepancies as in the
description of the typewriter used by Atty. Paraiso which he described as "elite" which to him meant big
letters which are of the type in which the will was typewritten but which was Identified by witness Jolly
Bugarin of the N.B.I. as pica the mistake in mentioning the name of the photographer by Matilde Orobia to
be Cesar Mendoza when actually it was Benjamin Cifra, Jr. these are indeed unimportant details which
could have been affected by the lapse of time and the treachery of human memory such that by themselves
would not alter the probative value of their testimonies on the true execution of the will, (Pascual vs. dela
Cruz, 28 SCRA 421, 424) for it cannot be expected that the testimony of every person win be Identical and
coinciding with each other with regard to details of an incident and that witnesses are not expected to
remember all details. Human experience teach us "that contradictions of witnesses generally occur in the
details of certain incidents, after a long series of questionings, and far from being an evidence of falsehood
constitute a demonstration of good faith. In as much 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." (Lopez vs. Liboro, 81 Phil. 429).
It is urged of Us by the petitioner that the findings of the trial court should not have been disturbed by the
respondent appellate court because the trial court was in a better position to weigh and evaluate the
evidence presented in the course of the trial. As a general rule, petitioner is correct but it is subject to wellestablished exceptions. The right of the Court of Appeals to review, alter and reverse the findings of the trial
court where the appellate court, in reviewing the evidence has found that facts and circumstances of weight
and influence have been ignored and overlooked and the significance of which have been misinterpreted by
the trial court, cannot be disputed. Findings of facts made by trial courts particularly when they are based
on conflicting evidence whose evaluation hinges on questions of credibility of contending witnesses hes
peculiarly within the province of trial courts and generally, the appellate court should not interfere with the
same. In the instant case, however, the Court of Appeals found that the trial court had overlooked and
misinterpreted the facts and circumstances established in the record. Whereas the appellate court said that
"Nothing in the record supports the trial court's unbelief that Isabel Gabriel dictated her will without any
note or document to Atty. Paraiso;" that the trial court's conclusion that Matilde Orobia could not have
witnessed anybody signing the alleged will or that she could not have witnessed Celso Gimpaya and Maria
Gimpaya sign the same or that she witnessed only the deceased signing it, is a conclusion based not on facts
but on inferences; that the trial court gave undue importance to the picture-takings, jumping therefrom to
the conclusion that the will was improperly executed and that there is nothing in the entire record to
support the conclusion of the court a quo that the will signing occasion was a mere coincidence and that
Isabel Gabriel made an appointment only with Matilde Orobia to witness the signing of her will, then it
becomes the duty of the appellate court to reverse findings of fact of the trial court in the exercise of its
appellate jurisdiction over the lower courts.
Still the petitioner insists that the case at bar is an exception to the rule that the judgment of the Court of
Appeals is conclusive as to the facts and cannot be reviewed by the Supreme Court. Again We agree with
the petitioner that among the exceptions are: (1) when the conclusion is a finding grounded entirely on
speculations, surmises or conjectures; (2) when the inference is manifestly mistaken, absurd or impossible;
(3) when there is a grave abuse of discretion; (4) when the presence of each other as required by law. "
Specifically, We affirm that on April 15, 1961 the testatrix Isabel Gabriel, together with Matilde Orobia,
Celso Gimpaya and his wife Maria Gimpaya, and a photographer proceeded in a car to the office of Atty.
Cipriano Paraiso at the Bank of P.I. Building, Manila in the morning of that day; that on the way, Isabel
Gabriel obtained a medical certificate from one Dr. Chikiamko which she gave to Atty. Paraiso upon
arriving at the latter's office and told the lawyer that she wanted her will to be made; that Atty. Paraiso

asked Isabel Gabriel to dictate what she wanted to be written in the will and the attorney wrote down the
dictation of Isabel Gabriel in Tagalog, a language known to and spoken by her; that Atty. Paraiso read back
to her what he wrote as dictated and she affirmed their correctness; the lawyer then typed the will and after
finishing the document, he read it to her and she told him that it was alright; that thereafter, Isabel Gabriel
signed her name at the end of the will in the presence of the three witnesses Matilde Orobia, Celso Gimpaya
and Maria Gimpaya and also at the left-hand margin of each and every page of the document in the
presence also of the said three witnesses; that thereafter Matilde Orobia attested the will by signing her
name at the end of the attestation clause and at the left-hand margin of pages 1, 2, 3 and 5 of the document
in the presence of Isabel Gabriel and the other two witnesses, Celso Gimpaya and Maria Gimpaya; then,
Celso Gimpaya signed also the will at the bottom of the attestation clause and at the left-hand margin of the
other pages of the document in the presence of Isabel Gabriel, Matilde Orobia and Maria Gimpaya; that
Maria Gimpaya followed suit, signing her name at the foot of the attestation clause and at the left-hand
margin of every page in the presence of Isabel Gabriel, Matilde Orobia and Celso Gimpaya; that thereafter,
Atty. Paraiso notarized the will as Page No. 94, Book No. IV, Series of 1961, in his Notarial Register. On the
occasion of the execution and attestation of the will, a photographer took pictures, one Exhibit "G",
depicting Matilde Orobia, the testatrix Isabel Gabriel, Celso Gimpaya, Maria Gimpaya and Atty. Paraiso,
taken on said occasion of the signing of the will, and another, Exhibit "H", showing Matilde Orobia signing
testimony that he had earlier advised Isabel Gabriel to bring with her at least the Mayor and a Councilor of
Navotas, Rizal to be her witnesses for he did not know beforehand the Identities of the three attesting
witnesses until the latter showed up at his law office with Isabel Gabriel on April 15, 1961. Atty. Paraiso's
claim which was not controverted that he wrote down in his own hand the date appearing on page 5 of
Exhibit "F" dissipates any lingering doubt that he prepared and ratified the will on the date in question."
It is also a factual finding of the Court of Appeals in holding that it was credible that Isabel Gabriel could
have dictated the will, Exhibit "F", without any note or document to Atty. Paraiso as against the contention
of petitioner that it was incredible. This ruling of the respondent court is fully supported by the evidence on
record as stated in the decision under review, thus: "Nothing in the record supports the trial court's unbelief
that Isabel Gabriel dictated her will without any note or document to Atty. Paraiso. On the contrary, all the
three attesting witnesses uniformly testified that Isabel Gabriel dictated her will to Atty. Paraiso and that
other than the piece of paper that she handed to said lawyer she had no note or document. This fact jibes
with the evidence which the trial court itself believed was unshaken that Isabel Gabriel was of sound
disposing memory when she executed her will.
Exhibit "F" reveals only seven (7) dispositions which are not complicated but quite simple. The first was
Isabel Gabriel's wish to be interred according to Catholic rites the second was a general directive to pay her
debts if any; the third provided for P1,000.00 for her sister Praxides Gabriel Vda. de Santiago and P2,000.00
for her brother Santiago Gabriel; the fourth was a listing of her 13 nephews and nieces including oppositorappellee Rizalina Gabriel and the amount for each legatee the fifth was the institution of the petitionerappellant, Lutgarda Santiago as the principal heir mentioning in general terms seven (7) types of properties;
the sixth disposed of the remainder of her estate which she willed in favor of appellant Lutgarda Santiago
but prohibiting the sale of such properties to anyone except in extreme situations in which judgment is
based on a misapprehension of facts; (5) when the findings of fact are conflicting, (6) when the Court of
Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the
admissions of both appellant and appellee. (Roque vs. Buan, et al., G.R. No. L-22459, Oct. 31, 1967; Ramos
vs. Pepsi Cola Bottling Co., G.R. No. L-22533, Feb. 9, 1967; Hilarion Jr. vs. City of Manila, G.R. No. L-19570;
Sept. 14, 1967).
Petitioner's insistence is without merit. We hold that the case at bar does not fall within any of the
exceptions enumerated above. We likewise hold that the findings of fact of the respondent appellate court
are fully supported by the evidence on record. The conclusions are fully sustained by substantial evidence.
We find no abuse of discretion and We discern no misapprehension of facts. The respondent Court's
findings of fact are not conflicting. Hence, the well-established rule that the decision of the Court of Appeals
and its findings of fact are binding and conclusive and should not be disturbed by this Tribunal and it must
be applied in the case at bar in its full force and effect, without qualification or reservation. The above
holding simply synthesize the resolutions we have heretofore made in respect ' to petitioner's previous
assignments of error and to which We have disagreed and, therefore, rejected.
The last assignments of error of petitioner must necessarily be rejected by Us as We find the respondent
Court acted properly and correctly and has not departed from the accepted and usual course of judicial
proceedings as to call for the exercise of the power of supervision by the Supreme Court, and as We find
that the Court of Appeals did not err in reversing the decision of the trial court and admitting to probate
Exhibit "F", the last will and testament of the deceased Isabel Gabriel.

We rule that the respondent Court's factual findings upon its summation and evaluation of the evidence on
record is unassailable that: "From the welter of evidence presented, we are convinced that the will in
question was executed on April 15, 1961 in the presence of Matilde Orobia, Celso Gimpaya and Maria
Gimpaya signing and witnessing the same in the the will on a table with Isabel Gabriel, Celso Gimpaya and
Maria Gimpaya sitting around the table. Atty. Paraiso, after finishing the notarial act, then delivered the
original to Isabel Gabriel and retained the other copies for his file and notarial register. A few days
following the signing of the will, Isabel Gabriel, Celso Gimpaya and another photographer arrived at the
office of Atty. Paraiso and told the lawyer that she wanted another picture taken because the first picture
did not turn out good. The lawyer told her that this cannot be done because the will was already signed but
Isabel Gabriel insisted that a picture be taken, so a simulated signing was performed during which incident
Matilde Orobia was not present.
Petitioner's exacerbation centers on the supposed incredibility of the testimonies of the witnesses for the
proponent of the will, their alleged evasions, inconsistencies and contradictions. But in the case at bar, the
three instrumental witnesses who constitute the best evidence of the will making have testified in favor of
the probate of the will. So has the lawyer who prepared it, one learned in the law and long in the practice
thereof, who thereafter notarized it. All of them are disinterested witnesses who stand to receive no benefit
from the testament. The signatures of the witnesses and the testatrix have been identified on the will and
there is no claim whatsoever and by anyone, much less the petitioner, that they were not genuine. In the last
and final analysis, the herein conflict is factual and we go back to the rule that the Supreme Court cannot
review and revise the findings of facts of the respondent Court of Appeals.
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is hereby AFFIRMED, with
costs against the petitioner. SO ORDERED.