THIRD LIST

EXTRINSIC VALIDITY
Garcia v. La Cuesta, et al.,
L-4067, November 29, 1961
Facts: Antero Mercado executed a will dated January 3,
1943. The will including the attestation clause was written
in Ilocano dialect. The will was 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.
The Court of First Instance of Ilocos Norte admitted the
said will for probate. However, the Court of Appeals
reversed the decision. According to the appellate court,
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.
Issue: Whether the will is extrinsically valid.
Held: No, the will is not extrinsically valid.
The attestation clause does not conform with the
formalities required by law. 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. Herein petitioner 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 several cases.
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.
Yap Tua v. Yap Ka Kuan,
G.R. No. 6845, September 1, 1914
Facts: Perfecto Gabriel, representing the petitioner Yap
Tua, presented a petition in the CFI of Manila asking the
will of Tomasa Elizaga Caong be admitted to probate as
the last will and testament of the deceased Tomasa.
At the hearing, several witnesses were presented to
identify the handwritimg of the testator.
However, the respondents, Yap Ca Kuan and Yap Ca Llu
opposed the petition. They asserted that the will is null
and void because the will had not been authorized nor
signed by the witnesses as the law prescribes.
Furthermore, they alleged that Tomasa Elizaga Yap
Caong, at the time of the execution of the will was not
mentally capacitated to execute the will due to her
sickness. The testator also did not intent the will as her
last will and testament.
Issue: Whether or not the will is valid.
Held: Yes, the will is valid. It has been held and time and
again that one who makes a will may sign the same by
the use of a mark, the name having been written by
others. If the writing of a mark simply upon a will is
sufficient indication of the intention of the person to make
and execute it, then certainly the writing of a portion or all
of the name ought to be accepted as a clear indication of
an intention to execute the will.
While the rule is absolute that one who makes a will must
sign the same in the presence of each other, nevertheless
the actual seeing of the signature is not necessary. It is
sufficient that when the signatures were made it is
possible for each of the necessary parties, if they so
desire, to see the signatures placed upon the will.
Abangan v. Abangan
GR No. L-1343 November 12, 1919
Facts: The Court of First Instance of Cebu admitted to
probate the will of the late Ana Abangan. The said will
consists of two sheets of paper, the first of which contains

all of the dispositions 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.
Issue: Whether the will is extrinsically valid.
Held: The will is extrinsically valid and there is substantial
compliance with the formalities required by law.
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 agains
t 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
frustative of the testators last will, must be disregarded.
Lopez v. Liboro
G.R. No. L-1787 August 27, 1948
[signing with a thumbmark; substantial compliance]
Facts: Don Sixto Lopez died at the age of 83. He
executed a last will and testament which was then
presented for probate. In the said will, Jose Lopez was
named as the sole heir. The will in question is comprised
of two pages, each of which is written on one side of a
separate sheet. Agustin Liboro questioned the validity of
the will based on several grounds. First, the first sheet is
not paged either in letters or in Arabic numerals. Second,
the witnesses to the will provided contradictory
statements. Third, Don Sixto used his thumb mark to sign
the will which makes it invalid. And lastly, there was no

indication in the will that the language used therein is

known by Don Sixto Lopez.
Issue: Whether a thumb mark can be considered as a
valid signature in signing of a will.
Held: Yes, a thumb mark can be considered as a valid
signature in signing a will.
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 thumb 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 thumb mark.
Garcia v. La Cuesta, et al.,
GR No. L-4067, November 29, 1961
[signing with a cross]
Facts: Antero Mercado executed a will dated January 3,
1943. The will including the attestation clause was written
in Ilocano dialect. The will was 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.
The Court of First Instance of Ilocos Norte admitted the
said will for probate. However, the Court of Appeals
reversed the decision. According to the appellate court,
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.
Issue: Whether signing the will with a cross can be
considered as a valid signature.
Held: No, signing with a cross is not a valid signature.

The attestation clause does not conform with the

formalities required by law. 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. Herein petitioner 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 several cases.
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 if 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.
Taboada v. Rosal,
G.R. No. L-36033 November 5, 1982
[attestation clause]
Facts: Dorotea Perez died leaving a last will and
testament. The said will was written in Cebuano-Visayan
dialect and 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 testratix alone and at
the left hand margin by the three instrumental witnesses.
The second page, which contains the attestation clause
was signed by the three attesting witnesses and at the left
hand margin by the testratix.
The will was admitted for probate. No opposition was filed
after Apolonio Taboadas compliance with the requirement
of publication. Petitioner submitted evidence and
presented Vicente Timkang, one of the subscribing
witnesses to the will, who testified on the genuineness
and due execution of the will.
The trial court denied the probate of the will for want of a
formality in its execution. Petitioner filed a motion for
reconsideration of the order denying the probate of the

will. He also filed a motion for the appointment of special

administrator. Both motions were denied.
Issue: Whether the will is extrinsically valid.
Held: Yes, the will is valid.
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.
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.
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".
Nera v. Rimando
G.R. No. L-5971 February 27, 1911
[in the presence]
Facts: 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.
Issue: Whether or not a subscribing witness at the time
the instrument was signed was in the presence of the
testator and of each other.
Held: At the time when the testator was signing the will,
the witness was outside, the will is invalid. This is
because, the line of vision from this witness to the testator
and the other subscribing witness would necessarily have
been impeded by the curtain separating the inner from
the outer one at the moment of inscription of each
signature.
SUBSTANTIVE OR INTRINSIC VALIDITY
Llorente v. CA
G.R. No. 124371, November 23, 2000
Facts: Lorenzo N. Llorente was an enlisted serviceman
of the United States Navy. Lorenzo married Paula
Llorente in Camarines Sur. Before the war started,
Lorenzo went back to the United States and Paula stayed
in Camarines Sur. Later on, Lorenzo was granted a US
citizenship and Certificate of Naturalization. After the war,
Lorenzo went back t the Philippines and found that his
wife was pregnant and was living with Lorenzos brother,
Ceferino Llorente.
When Paula gave birth, she named her son Crisologo
Llorente and left the fathers name blank. Lorenzo and
Paula then executed an agreement saying that he would
no longer giver her financial support, that they would

dissolve their marital union, that they made a separate

agreement regarding their conjugal property acquired
during their marital life and that Lorenzo will not prosecute
Paula for adultery if she would admit her fault and agreed
to separate with Lorenzo.
Lorenzo returned to the United States and filed a divorce
before the Superior Court of the State of California and
for the County of San Diego. On December 1952, the
divorce became final. Lorenzo then returned to the
Philippines.
Thereafter, Lorenzo married Alicia Llorente, who had no
knowledge about the first marriage. Lorenzo and Alicia
had three children namely Raul, Luz and Beverly.
In Lorenzos last will and testament he bequeathed all his
properties to Alicia and their three children. The will was
notarized by Notary Public Salvador M. Occiano and was
duly signed by Lorenzo with attesting witnesses Francis
Hugo, Francisco Neibres and Tito Trajano.
Lorenzo filed a petition for probate and allowance of his
last will and testament. Alicia was appointed as Special
Administratix of his estate. Initially, the trial court denied
the motion saying that the will cannot be admitted
because Lorenzo was still alive but later on admitted the
will to prbate. Before the proceedings could be
terminated, Lorenzo died.
Paula filed a petition for letters of administration over
Lorenzos estate in her favor. Alicia on the other hand
filed in the testate proceeding a petition for the issuance
of letters testamentary.
The RTC declared the divorce decree void and therefore
the subsequent marriage of Lorenzo and Alicia is likewise
void. Alicias petition for the issuance of the letters
testamentary is denied. She was also not allowed to
receive any share from the estate of Lorenzo.
Issue: Whether the will is intrinsically valid.
Held: 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.
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.
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.
Having thus ruled, we find it unnecessary to pass upon
the other issues raised.

of the will; and (d) the capacity to succeed. Under the

laws of Texas, there are no forced heirs or
legitimes. Hence, Maria Christina and Miriam Palma
would not inherit.
Cayetano v. Leonidas
G.R. No. L-54919, May 30, 198
Facts: Adoracion C. Campos died, leaving Hermogenes
Campos (father) and her sisters, Nenita Paguia,
Remedios Lopez, and Marieta Medina as the surviving
heirs. As the only compulsory heir is Hermogenes, he
executed an Affidavit of Adjudication, adjudicating unto
himself the entire estate of Adoracion.
Later that same year, Nenita filed a petition for reprobate
of a will, alleging among others that Adoracion was an
American citizen and that the will was executed in teh US.
Adoracion died in Manila while temporarily residing in
Malate.
While this case was still pending, Hermogenes died and
left a will, appointing Polly Cayetano as the executrix.
Hence, this case.
Issue: Whether the will is valid

Bellis v. Bellis
G.R. No. L-23678 June 6, 1967
Facts: Amos G. Bellis, a citizen of the State of Texas,
died a resident of Texas. The will he had executed in the
Philippines directed that his distributable Philippine estate
should be divided in trusts. In the project of partition, the
executor of the will pursuant to the Twelfth clause of
the testators Last Will and Testament- divided the
residuary estate into 7 equal portions for the benefit of the
testators seven legitimate children. Maria Christina Bellis
and Miriam Palma Bellis filed their respective oppositions
on the ground that they were deprived of their legitimes
as illegitimate children, and, therefore, compulsory heirs
of the deceased.
Issue: Whether or not the Texas law or the Philippine
Law should be applied in the case at bar.
Held: The Court held that since decedent is a citizen of
the State of Texas and is domiciled therein at the time of
his death, Texas law should apply. Article 16 (2) and Art
1039 render applicable the national law of the decedent,
in intestate or testamentary successions, with regard to 4
items: (a) the order of succession; (b) the amount of
successional rights ; (c)intrinsic validity of the provisions

Held: 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 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 issues.
In this case, it was sufficiently established that Adoracion
was an American citizen and the law which governs her
will is the law of Pennsylvania, USA, which is the national
law of the decedent.
It is a settled rule that as regards the intrinsic validity of
the provisions of the will, the national law of the decedent
must apply.
JOINT WILLS
Alsua-Betts v. CA
G.R. No.L-4643031, July 30,1979

Facts: On November 25, 1949, Don Jesus Alsua and his

wife, Doa 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 , over the then present and existing
properties of the spouses Don Jesus and Doa
Florentina.
On Jan. 5, 1955, Don Jesus and Doa Florentina, also
known as Doa Tinay separately executed their
respective holographic wills, the provisions of which were
in conformity and in implementation of the extrajudicial
partition of Nov. 25, 1949.
On Aug.14, 1956, the spouses Don Jesus and Doa
Tinay executed their mutual and reciprocal codicils
amending and supplementing their respective holographic
wills. On Feb. 19, 1957, their respective holographic wins
and the codicils thereto were duly admitted to probate.
Doa Tinay died in October 1959. In early Nov. 1959, Don
Jesus cancelled his holographic and instructed his
attorney to draft a new will. This subsequent last Will and
Testament of Don Jesus executed on Nov. 14, 1959
contained an express revocation of his holographic wig of
Jan. 5, 1955 and the codicil of Aug.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.
Don Jesus Alsua died in 1964. Petitioner Francisca Alsua
Betts, as the executrix named in the will of Nov. 14, 1959,
filed a petition for the probate of said new will of Don
Jesus Alsua before the CFI Albay and was docketed as.
Oppositions thereto were filed by respondents Pablo,
Amparo and Fernando. CFI allowed the the probate of the
will of Don Jesus Alsua. CA reversed: denied the probate
of the will, declared null and void the two sales subject of
the complaint and ordered the defendants-petitioners, to
pay damages to the plaintiffs-private respondents. Hence,
this petition.
Issue: Whether the will should be probated.

Held: The will should be probated. The Court of Appeals

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.
Upon careful examination of the provisions of the
holographic will and codicil of Doa Tinay, there was no
indication whatsoever that Doa Tinay expressly or
impliedly instituted both the husband and her children as
heirs to her free portion of her share in the conjugal
assets.
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 Doa Tinay, which CA sustained. However SC ruled
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 will 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
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.
WITNESSES TO WILLS
Gonzales v. CA
GR No. L-37453, May 25, 1979

Facts: Respondent Lutgarda Santiago filed a petition with

the Court of First Instance of Rizal 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.
Lutgarda Santiago and Rizalina Gonzales are nieces of
the late Isabel Andres Gabriel. There was no dispute that
Isabel died widow and without issue. The will submitted
consists of 5 pages and includes the pages whereon the
attestation clause and the acknowledgment of the notary
public were written. The signatures of the deceased
Isabel Gabriel appeared at the end of the will on page
four and at the left margin of all pages. The petition was
opposed by Rizalina assailing that the will was not
genuine and was not executed and attested as required
by law.
The lower court disallowed the probate of said will and as
consequence, Lutgarda appealed to Court of Appeals
reversed the lower courts decision and allowed the
probate of the will. Rizalina filed a motion for
reconsideration but the same was denied.
Issue: Whether or not the will was executed and attested
as required by law.
Held: Article 820 of the Civil Code provides for the
qualification of a witness to the execution of wills while
Article 821 sets forth the disqualification from being a
witness to a will. 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. An we agree with
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 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.
REVOCATION OF WILLS AND TESTAMENTARY
DISPOSITIONS

Testate Estate of Adriana Maloto v. CA,

G.R. No. 76464, February 29,1988
[on the Doctrine of Dependent Relative Revocation]
Facts: On October 20, 1963, Adriana Maloto died leaving
as heirs her niece and nephews, the petitioners Aldina
Maloto-Casiano and Constancio, Maloto, and the private
respondents Panfilo Maloto and Felino Maloto. Believing
that the deceased did not leave behind a last will and
testament, these four heirs commenced on November 4,
1963 an intestate proceeding for the settlement of their
aunt's estate in the CFI of Iloilo. While the case was still
pending the parties Aldina, Constancio, Panfilo, and
Felino
executed an agreement of extrajudicial
settlement of Adriana's estate. The agreement provided
for the division of the estate into four equal parts among
the parties. The Malotos then presented the extrajudicial
settlement agreement to the trial court for approval which
the court did on March 21, 1964. 3 years later, Atty.
Sulpicio Palma, a former associate of Adriana's counsel,
the late Atty. Eliseo Hervas, discovered a document
entitled
"KATAPUSAN
NGA
PAGBUBULAT-AN
(Testamento)," dated January 3,1940, and purporting to
be the last will and testament of Adriana. Atty. Palma
claimed to have found the testament, the original copy,
while he was going through some materials inside the
cabinet drawer formerly used by Atty. Hervas. The
document was submitted to the clerk of court of the Iloilo
CFI. Incidentally, while Panfilo and Felino are still named
as heirs in the said will, Aldina and Constancio are
bequeathed much bigger and more valuable in the estate
of Adriana than what they received by virtue of the
agreement of extrajudicial settlement they had earlier
signed. The will likewise gives devises and legacies to
other parties, among them being the petitioners Asilo de
Molo, the Roman Catholic Church of Molo, and
Purificacion Miraflor. Aldina and Constancio, joined by the
other devisees and legatees named in the will, filed in the
same court which approved the EJ settelement a motion
for reconsideration and annulment of the proceedings
therein and for the allowance of the will which was denied
by the CFI.
Upon petition to the SC for certiorari and mandamus, the
SC dismissed that petition and advised that a separate
proceeding for the probate of the alleged will would be the
appropriate vehicle to thresh out the matters raised by the
petitioners. The CFI and CA found that the will to be
probated had been revoked by the burning thereof by the
housemaid upon instruction of the testatrix.
Issue: Whether the will was revoked by Adriana

Held: No. The provisions of the new Civil Code pertinent

to the issue can be found in Article 830. The physical act
of destruction of a will, like burning in this case, does not
per se constitute an effective revocation, unless the
destruction is coupled with animus revocandi on the part
of the testator. It is not imperative that the physical
destruction be done by the testator himself. It may be
performed byanother person but under the express
direction and in the presence of the testator. Of course, it
goes without saying that the document destroyed must be
the will itself. "Animus revocandi is only one of the
necessary elements for the effective revocation of a last
will and testament. The intention to revoke must be
accompanied by the overt physical act of burning, tearing,
obliterating, or cancelling the will carried out by the
testator or by another person in his presence and under
his express direction. There is paucity of evidence to
show compliance with these requirements. For one, the
document or papers burned by Adriana's maid,
Guadalupe, was not satisfactorily established to be a will
at all, much less the will of Adriana Maloto. For another,
the burning was not proven to have been done under the
express direction of Adriana. And then, the burning was
not in her presence. Both witnesses, Guadalupe and
Eladio, were one in stating that they were the only ones
present at the place where the stove (presumably in the
kitchen) was located in which the papers proffered as a
will were burned. The two witnesses were illiterate and
does not appear to be unequivocably positive that the
document burned was indeed Adriana's will. Guadalupe
believed that the papers she destroyed was the will only
because, according to her, Adriana told her so. Eladio, on
the other hand, obtained his information that the burned
document was the will because Guadalupe told him so,
thus, his testimony on this point is double hearsay. It is an
important matter of public interest that a purported win is
not denied legalization on dubious grounds. Otherwise,
the very institution of testamentary succession will be
shaken to its very foundations.
Gan v. Yap
G.R. L-12190 August 30, 1958
Facts: Felicidad Yap died of a heart failure, leaving
properties in Pulilan, Bulacan, and in Manila. Fausto E.
Gan, her nephew, initiated the proceedings in the Manila
CFI with a petition for the probate of a holographic will
allegedly executed by the deceased. The will was not
presented because Felicidads husband, Ildefonso Yap,
supposedly took it. What was presented were witness
accounts of relatives who knew of her intention to make a
will and allegedly saw it as well.

Opposing the petition, her surviving husband Ildefonso

Yap asserted that the deceased had not left any will, nor
executed any testament during her lifetime. The Judge
refused to probate the alleged will on account of the
discrepancies arising from the facts.
Issue: W/N a holographic will be probated upon the
testimony of witnesses who have allegedly seen it and
who declare that it was in the handwriting of the testator
Held: NO. The will must be presented. Spanish
commentators agree that one of the greatest objections to
the holographic will is that it may be lost or stolen an
implied admission that such loss or theft renders it
useless.
The Civil Code requires the will to be probated by
presenting it to the judge, who shall subscribe it and
require its identity to be established by the three
witnesses who depose that they have no reasonable
doubt that the will was written by the testator. Such
purpose is frustrated when the document is not presented
for their examination.
The exhibition of the document itself - in the decision of
the Supreme Court of Spain of June 5, 1925, which
denied probate to a document containing testamentary
dispositions in the handwriting of the deceased, but
apparently mutilated, the signature and some words
having been torn from it. Even in the face of allegations
and testimonial evidence (which was controverted),
ascribing the mutilation to the opponents of the will. The
aforesaid tribunal declared that, in accordance with the
provision of the Civil Code (Spanish) the will itself, whole
and unmutilated, must be presented; otherwise, it shall
produce no effect.
Taking all the above circumstances together, we reach
the conclusion that the execution and the contents of a
lost or destroyed holographic will may not be proved by
the bare testimony of witnesses who have seen and/or
read such will.
Rodelas v. Aranza,
G.R. No. L-58509, December 7, 1982
Facts: Marcela Rodelas filed a petition before the Court
of First Instance of Rizal for the probate of the
holographic will of Ricardo B. Bonilla. She also prayed for
the issuance of letters testamentary in her favor. The said
petition was opposed by Amparo Aranza Bonilla, Wilferine
Bonilla Treyes Expedita Bonilla Frias and Ephraim

Bonilla. Herein respondents claim that Marcela failed to

produce the will of Ricardo within 20 days from the death
of the testator hence estopped from claiming that the
decedent left a will. Respondents also claim that the
alleged holographic was not a last will but merely an
instruction as to the management and improvement of the
schools and colleges founded by decedent Ricardo B.
Bonilla; and that Lost or destroyed holographic wills
cannot be proved by secondary evidence unlike ordinary
wills.
The probate court ruled in favor of Amparo Aranza Bonilla
et al. It explained that once the original copy of the
holographic will is lost, a copy thereof cannot stand in lieu
of the original . The court also opined that the lapse of
more than 14 years from the time of the execution of the
will to the death of the decedent, the fact that the original
of the will could not be located shows that the decedent
had discarded before his death his allegedly missing
Holographic Will. The Court of Appeals affirmed the
decision of the lower court. Hence this petition.
Issue: Whether a holographic will which was lost or
cannot be found can be proved by means of a photostatic
copy.
Held: Yes, a lost or destroyed holographic will can be
proved by means of a photostatic copy.
Pursuant to Article 811 of the Civil Code, probate of
holographic wills is the allowance of the will by the court
after its due execution has been proved. The probate may
be uncontested or not. If uncontested, at least one
Identifying witness is required and, if no witness is
available, experts may be resorted to. If contested, at
least three Identifying witnesses are required. However, if
the holographic will has been lost or destroyed and no
other copy is available, the will can not be probated
because the best and only evidence is the handwriting of
the testator in said will. It is necessary that there be a
comparison between sample handwritten statements of
the testator and the handwritten will. But, a photostatic
copy or xerox copy of the holographic will may be allowed
because comparison can be made with the standard
writings of the testator. The photostatic or xerox copy of
the lost or destroyed holographic will may be admitted
because then the authenticity of the handwriting of the
deceased can be determined by the probate court.
Gago v, Mamuyac
G.R. No. L-26317 January 29, 1927

Facts: On July 27, 1918, Miguel Mamuyac executed a

last will and testament. The testator who on January 2,
1922. Francisco Gago petitioned for the probate of
Mamuyacs last will and opposed. However, this was
opposed by Cornelio Mamuyac, Ambrosio Lariosa,
Feliciana Bauzon and Catalina Mamuyac.
The CFI denied the petition for probate on the ground that
the deceased executed a new will on April 1919. On
February 21, 1925, an action was filed to secure the
probation of the Aril 1919 will. This was again opposed by
Cornelio Mamuyac and the others. They alleged that the
1919 will is a a) copy of the second will and testament
executed by the said Miguel Mamuyac; (b) that the same
had been cancelled and revoked during the lifetime of
Miguel Mamuyac and (c) that the said will was not the last
will and testament of the deceased Miguel Mamuyac. CFI
explained that Exhibit A is a mere carbon of its original
which remained in the possession of the deceased
testator Miguel Mamuyac, who revoked it before his death
as per testimony of witness Jose Fenoy, who typed the
will of the testator on April 16, 1919, and Carlos Bejar,
who saw on December 30, 1920, the original Exhibit A
(will of 1919) actually cancelled by the testator Miguel
Mamuyac, who assured Carlos Bejar that inasmuch as he
had sold him a house and the land where the house was
built, he had to cancel it (the will of 1919), executing
thereby a new testament.
Issue: WON the will in question had been cancelled in
1920?
Held: Yes, the will in question has been cancelled in
1920.
Lower court accepted positive proof of the cancellation
that was not denied. The law does not require any
evidence of the revocation or cancellation of a will to be
preserved. It therefore becomes difficult to prove the
revocation. Cancellation or revocation must either remain
unproved or be inferred from evidence showing that after
due search, the original will cannot be found. Where a
will, which cannot be found, is shown to have been in the
possession of the testator, when last seen, the
presumption is, in the absence of other competent
evidence, that the same was cancelled or destroyed.
Same presumption where it is shown that the testator had
ready access to the will and it cannot be found after his
death. It will not be presumed that such will has been
destroyed by any other person without the knowledge or
authority of the testator. The presumption of cancellation
is never conclusive but may be overcome by proof that
the will was not destroyed by the testator with intent to

revoke it. Since the original will of 1919 could not be

found after the death of the testator and in view of the
positive proof that it had been cancelled, the conclusion is
that it had been cancelled and revoked. In a proceeding
to probate a will, the burden of proof is upon the
proponent to establish its execution and existence. In a
great majority of instances in which wills are destroyed for
the purpose of revoking them there is no witness to the
act of cancellation or destruction and all evidence of its
cancellation perishes with the testator. Copies of wills
should be admitted by the courts with great caution.
When it is proven, however, by proper testimony that a
will was executed in duplicate with all the formalities and
requirements of the law, then the duplicate may be
admitted in evidence when it is made to appear that the
original has been lost and was not cancelled or destroyed
by the testator.
ALLOWANCE AND DISALLOWANCE OF WILLS
Lopez v. Gonzaga, et al.,
GR No. L-18788, January 31, 1964
[need for a probate]
Facts: Soledad Gonzaga died intestate on April 11, 1935
without any issue and leaving real and personal
properties. She was survived by Romulo Lopez, et al.
They were Soledads brother, sisters, nephews and
nieces. While Soledad was still alive she said that her
nephew, Luis Gonzaga, may use products and rent her
properties in furtherance of his coconut oil experiments.
However, Gonzagas stopped his experiments when he
became totally blind in October 195. Romulo Lopez et al
now seek for the partition of Soledads estate and the
cancellation of titles of lands allegedly fraudulently
transferred in the name of Luis Gonzaga.
Luis Gonzaga filed his answer pleading the denial of the
intestate proceeding of Soledads estate. Luis said that
Soledad left a will and instituted him as the sole heir and
that the will was duly allowed and probated. As a witness,
Luiss counsel, Atty. Amelia del Rosario, testified that the
she discovered the records of the probate court of Iloilo
among the records of the cadastral court in Negros
Occidental. The property record of Iloilo was destroyed
because of the last war hence no will or probate order
was produced and neither were attested copies
registered with the Office of the Register of Deeds of
Negros Occidental.
The probate court ruled in favor of Gonzaga. The decision
was affirmed by the Court of Appeals.

Issues:
1) Whether Luis Gonzaga is duty-bound to produce a
copy of the will of Soledad Gonzaga.
2) Whether Luis Gonzagas failure to file with the Register
of Deeds a copy of his letters of administration and the
will negate the validity of the judgment.

Held: 1) No, Luis Gonzaga is not duty-bound to produce

a copy of the will of Soledad Gonzaga.
There is no proof that copies of the will ever existed other
than the one burned while in appellee's possession. The
appellee was not bound to call, or, account, for the
witnesses to the testament. He was not trying to show
that the will complied with the statutory requirements, but
that the will had been admitted to probate and of course,
the probate decree conclusively established the due
execution.
2) The failure of the defendant, Luis Gonzaga, to file with
the Register of Deeds a certified copy of his letters of
administration and the will, and to record the attested
copies of the will and of the allowance thereof by the
court does not negate the validity of the judgment or
decree of probate nor the rights of the devisee under the
will. Section 90 of Act 496 refers to the dealings with
registered lands by an executor or administrator; and
while Luis Gonzaga was an administrator, this is beside
the point, because his dealings with the lands, if any,
during his tenure as an administrator are not here in
question. That the defendant sought judicial orders to
effect the transfers to his name of the certificates of title
after the will was probated, and succeeded in having
them so transferred, are not "dealings" with the property
as administrator under section 90 of the Registration Act.
The defendant sought and obtained the change in title in
his own behalf and capacity. Although the step taken is
not exactly what Section 624 of Act 190 directs, the same
purpose was achieved that of notice to all strangers of
the cause and nature of the transfers; and it does not
appear that anyone was prejudiced by the defect in
registration complained of. At any rate, the recording of
the judicial orders sufficed as notice to interested parties,
and was substantial compliance with the required
recording of the will itself. No one faced by the recorded
documents could ignore the reference therein to the
probated testament; and the rule is that knowledge of
what might have been revealed by proper inquiry is
imputable to the inquirer.

10

Caniza v. Court of Appeals

G.R. No. 110427, February 24, 1997
[effect of no probate]
Facts: On November 20, 1989 Carmen Caiza was
declared incompetent in a guardianship proceeding
instituted by her niece, Amparo Evangelista. Amparo was
appointed legal guardian of her person and estate.
Caiza was the owner of a house and lot at Quezon City.
On September 17, 1990, her guardian Amparo
commenced a suit in the MTC to eject the spouses
Estrada from said premises. In their Answer, the
defendants declared that they had been living in Caiza's
house since the 1960's; that in consideration of their
faithful service they had been considered by Caiza as
her own family, and the latter had in fact executed a
holographic will on September 4, 1988 by which she
"bequeathed" to the Estradas the house and lot in
question. However, this will has not yet been probated.
MTC decided in favor of Caniza. On appeal, the decision
was reversed. The CA affirmed the RTCs decision.
Hence, this petition.
Issue: Is there a need to probate the will in order to
transfer ownership and rights over the property.
Held: Yes. An unprobated will does not pass any right.
A will is essentially ambulatory; at any time prior to the
testators death, it may be changed or revoked; and until
admitted to probate, it has no effect whatever and no right
can be claimed thereunder, the law being quite explicit:
No will shall pass either real or personal property unless
it is proved and allowed in accordance with the Rules of
Court (Art. 838). An owner's intention to confer title on
the future to persons possessing property by his
tolerance, is not inconsistent with the former's taking back
possession in the meantime for any reason deemed
sufficient. And that in this case there was sufficient cause
for the owner's resumption of possession is apparent: she
needed to generate income from the house on account of
the physical infirmities afflicting her, arising from her
extreme age.
Sps. Pascual vs. Court of Appeals
G.R. No. 115925, August 15, 2003
Facts: Canuto Sioson and 11 other individuals, including
his sister Catalina Sioson and his brother Victoriano
Sioson were co-owners of a parcel of land in Tanza,
Navotas, Metro Manila. This property was known as Lot 2
of Psu 13245. Canuto, Catalina and Victoriano each

owned an aliquot 10/70 share or 1,335 square meters of

Lot 2.
Canuto and his niece Consolacion Sioson executed a
Kasulatan ng Bilihang Tuluyan wherein Canuto sold his
10/70 share in Lot 2 in favor of Consolacion for P2,250.
Consolacion immediately took possession of Lots 2-A and
2-E. She later declared the land for taxation purposes and
paid the corresponding real estate taxes.
Later on February 4, 1988, Remedios S. Eugenio-Gino,
the granddaughter of Canuto, filed a complaint against
Consolacion and her spouse Ricardo Pascual for
Annulment or Cancellation of Transfer Certificate of Title
and Damages. Remedios claimed that she is the owner
of Lots 2-A and 2-E because Catalina devised these lots
to her in Catalinas last will and testament.
Petitioners sought to dismiss the complaint on the ground
of prescription. They claimed that the basis of the action
was fraud and Remedios should have filed the action
within four years from the registration of Consolacions
title on October 28, 1968. The trial court denied such
motion to dismiss.
Eventually, the trial court dismissed the case because the
action was based on fraud and hence, covered by the
four-year prescriptive period. It ruled further that
Remedios had no right of action because Catalinas last
will from which Remedios claimed to derive his title had
not yet been admitted to probate. However, the Court of
Appeals reversed the decision of the trial court. The
appellate court held that what Remedios filed was a suit
to enforce an implied trust created in her favor when
Consolacion registered her title over the subject lots.
Consequently, the prescriptive period for filing the
complaint was ten years. Hence, reckoned from
November 19, 1982 when Remedios knew of petitioners
adverse title, the complaint was seasonably filed.
Petitioners filed a petition questioning the ruling of the
Court of Appeals.
Issues:
(1) Whether or not the action was barred by prescription
(2) Whether or not Remedios was a real party-in-interest
Held:
(1) YES. The action filed by Remedios was based on an
implied trust. However, the ten year prescriptive period
should be counted from the registration of the adverse
title and not from actual notice of the adverse title. When

11

Remedios filed her complaint on February 4, 1988, the

prescriptive period had already lapsed.

for payment of his legacy and seizure of the properties

subject of said legacy.

(2) NO. Remedios was not a real party-in-interest who

can file the complaint. Remedios anchored her claim over
Lot Nos. 2-A and 2 E on the devise of these lots to her
under Catalinas last will. However, the trial court found
that the probate court did not issue any order admitting
the LAST WILL to probate. Article 838 of the Civil Code
states that "No will shall pass either real or personal
property unless it is proved and allowed in accordance
with the Rules of Court." This Court has interpreted this
provision to mean, "until admitted to probate, a will has no
effect whatever and no right can be claimed thereunder."
Since the probate court has not admitted Catalinas last
will, Remedios had not acquired any right under the
Catalinas last will. Remedios was thus without any cause
of action either to seek reconveyance of Lot Nos. 2-A and
2-E or to enforce an implied trust over these lots.

PASTOR, JR. and SOFIA opposed these pleadings on

the ground that there is still a reconveyance suit pending
with another branch of CFI.

Pastor v. Court of Appeals

G.R. No. 56340, June 24, 1983
[validity of a will]
Facts: Alvaro Pastor, Sr. died in Cebu City on June 5,
1966. He was survived by his wife Sofia Bossio, their two
legitimate children Alvaro Pastor, Jr. and Sofia Pastor de
Midgely, and an illegitimate child Lewellyn Barlito
QUEMADA.
QUEMADA filed with the CFI a petition for the probate
and allowance of an alleged holographic will left by
PASTOR, SR. The will contained only one testamentary
disposition: a legacy in favor of QUEMADA consisting of
30% of PASTOR, SR.'s 42% share in the operation by
ATLAS of some mining claims in Pina-Barot, Cebu.
The probate court appointed him special administrator of
the entire estate of PASTOR, SR. to which Pastor Jr. And
his sister Sofia opposed. QUEMADA as special
administrator, instituted against PASTOR, JR. and his
wife an action for reconveyance of alleged properties of
the estate subject of the legacy which were in the names
of PASTOR, JR. and his wife, who claimed to be the
owners thereof in their own rights, and not by inheritance.
The probate court then issued an order allowing the
holographic will to probate.
For two years after remand of the case to the PROBATE
COURT, QUEMADA filed pleading after pleading asking

The PROBATE COURT then set a hearing on the intrinsic

validity of the will but no hearing was held because of the
opposition of Pastor Jr. and Sofia again on the same
ground of pendency of the reconveyance suit. Instead,
the probate court required the parties to submit their
respective position papers.
PASTOR. JR. and SOFIA submitted their Memorandum
which in effect showed that determination of how much
QUEMADA should receive was still premature.
QUEMADA also submitted his Position paper.
So while the reconveyance suit was still being litigated,
the PROBATE COURT issued an Order of Execution and
Garnishment resolving the question of ownership of the
royalties from ATLAS and ruling that the legacy to
Quemada was not inofficious. The order being
"immediately executory", QUEMADA succeeded in
obtaining a Writ of Execution and Garnishment and in
serving the same on ATLAS on the same day.
Pastor Jr. and Sofia filed a motion for reconsideration on
the ground that the PROBATE COURT gravely abused its
discretion when it resolved the question of ownership of
the royalties and ordered the payment of QUEMADA's
legacy after prematurely passing upon the intrinsic validity
of the will.
Even before the MFR could be resolved, PASTOR, JR.
and his wife filed with the CA a Petition for certiorari. The
petition was denied on the ground that its filing was
premature because there was still an MFR pending
before the PROBATE COURT. The spouses moved for
reconsideration.
While this petition was pending, the probate court issued
an order which the court claims to have resolved the
question of the instrinsic validity of the will and of the
ownership of the mining claims, rendering moot and
academic the suit for reconveyance.
Hence this petition assailing the orders issued by the
probate court. The petitioners are arguing that before the
provisions of the holographic will can be implemented, the
questions of ownership of the mining properties and the

12

intrinsic validity of the holographic will must first be

resolved with finality.

produce an impairment of the legitime of the compulsory

heirs.

Issue: WON the Probate Order resolved with finality the

questions of ownership and intrinsic validity of the will.

There actually was no determination of the intrinsic

validity of the will in other respects. It was obviously for
this reason that as late as March 5, 1980 - more than 7
years after the order was issued the Probate Court.

Held: No. Contrary to the position taken by the probate

court, these two issued have not yet been resolved.
Therefore, the Probate Order could not have resolved
and actually did not decide QUEMADA's entitlement to
the legacy. This being so, the Orders for the payment of
the legacy in alleged implementation of the Probate Order
of 1972 are unwarranted for lack of basis.
In a special proceeding for the probate of a will, the issue
by and large is restricted to the extrinsic validity of the
will, i.e., whether the testator, being of sound mind, freely
executed the will in accordance with the formalities
prescribed by law. As a rule, the question of ownership is
an extraneous matter which the Probate Court cannot
resolve with finality. Thus, for the purpose of determining
whether a certain property should or should not be
included in the inventory of estate properties, the Probate
Court may pass upon the title thereto, but such
determination is provisional, not conclusive, and is
subject to the final decision in a separate action to resolve
title.
When PASTOR, SR. died in 1966, he was survived by his
wife. There is therefore a need to liquidate the conjugal
partnership and set apart the share of PASTOR, SR.'s
wife in the conjugal partnership. When the disputed order
was issued, no liquidation of the community propertied
transpired yet. Thus, there had been no prior definitive
determination of the assets of the estate of PASTOR, SR.
There was an inventory of his properties presumably
prepared by the special administrator, but it does not
appear that it was ever the subject of a hearing or that it
was judicially approved. The reconveyance or recovery of
properties allegedly owned but not in the name of
PASTOR, SR. was still being litigated in another court.
There was no appropriate determination, much less
payment, of the debts of the decedent and his estate.
Nor had the estate tax been determined and paid. The
net assets of the estate not having been determined, the
legitime of the forced heirs in concrete figures could not
be ascertained.
All the foregoing deficiencies considered, it was not
possible to determine whether the legacy of QUEMADA a fixed share in a specific property rather than an aliquot
part of the entire net estate of the deceased would

Re- Testate of Suntay

GR No. L-3080 November 5, 1964
[no opposition to probate of the lost or destroyed
will]
Facts: Jose Suntay, a Filipino citizen and resident of the
Philippines, died in the city of Amoy,Fookien province,
China, leaving real and personal properties in the
Philippines and a house in Amoy, Fookien province,
China. He had 9 children in his first marriage to late
Manuela Cruz, and only 1 child to her second marriage
Maria Natividad Lim Billian who survived him.
There was an Intestate Proceeding instituted in the Court
of First Instance of Bulacan and after hearing letters of
administration was issued to Apolonio Suntay, one of the
children of Jose Suntay to Manuela Cruz.
While the surviving widow filed a petition in the Court of
First Instance Of Bulacan for the probate of a last will and
testament claimed to have been executed and signed in
the Philippines on November 1929 by the late Jose
Suntay. However, the petition was denied because of the
loss of said will after filling of the petition and before
hearing thereof and of the insufficiency of the evidence
establish the loss of the said will.
An appeal was taken from said order denying the probate
of the will and this Court held the evidence before the
probate court sufficient to prove the loss of the will and
remanded the case to the Court of First Instance of
Bulacan for further proceedings.
Issue: Whether the lost will may be allowed to probate.
Held: NO, the lost will cannot be allowed to probate,
despite the fact that there is no opposition to the lost of
the will, because according to the law, there is a
requirement needed to allow the lost will to be probated
that is the 2 credible witnesses to testify that the lost will
is in existence before the death of the testator. However
since only Judge Teodoro was the one granted by the
court to be a credible witness on the alleged lost will, and
the rest of the witnesses, including Go Teh, were not

13

considered as credible witness. So in this case, only 1

credible witness was allowed by the court and since the
law required atleast two credible witnesses, the drafted
will of the lost will was not allowed to be probated.
Despite the fact that there were no opposition to the
drafted will of the lost will itself, thus even the secondary
will or the drafted will cannot be probated for the reason
that they failed to present two credible witnesses.
Ngo The Hua v. Chung Kiat Kung
GR No. L-17091, Sept. 30, 1963
[intervention]
Facts: Ngo The Hua, claiming to be the surviving spouse
of Chung Liu, filed a petition to be appointed administratix
of the estate of Chung Liu. The petition was opposed by
Chung Kiat Hua, and Chung Lius children by his first
wife, Tan Hua. They claim that Ngo The Hua is unfit to be
the administratix and that Ngo The Hua and Chung Liu
have secured an absolute divorce in Taiwan. Chung Kiat
Hua also prayed to be appointed as administrator of the
estate of her father. Ngo The Hua then claimed that the
oppositors are not the children of Chung Liu.
Chung Kiat Kang, claiming to be the nephew of Chung
Lui, filed his opposition to the appointment of either Ngo
The Hua or Chung Kiat Hu on the ground that to be
appointed they must first prove their respective
relationship to the deceased Chung Lui and prayed that
he be appointed as administrator instead. However, when
it was Chung Kiat Kangs turn to present his evidence
during the hearing, he waived his right to present
evidence in so far as the appointment of administrator of
the estate is concerned.
The lower court found that Ngo The Hua and Chung Lui
were validly divorced in Taiwan and Chung Kiat Hua and
the other oppositors were the children of Chung Lui.
Chung Kiat Hua was appointed as the administrator of the
estate of Chung Lui. Hence this petition.
Issue: Whether Chung Kiat Kang can be appointed as a
co-administrator of the estate.
Held: No, Chung Kiat Kang cannot be appointed as coadministrator of the estate.
It is well-settled that for a person to be able to intervene in
an administration proceeding concerning the estate of a
deceased, it is necessary for him to have interest in such
estate. An interested party has been defined in this
connection as one who would be benefited by the estate

such as an heir, or one who has a certain claim against

the estate, such as a creditor. Appellant Chung Kiat Kang
does not claim of to be a creditor of Chung Liu's estate.
Neither is he an heir in accordance with the Civil Code of
the Republic of China the law that applies in this case,
Chung Liu being a Chinese citizen (Art. 16, New Civil
Code). The appellant not having any interest in Chung
Liu's estate, either as heir or creditor, he cannot be
appointed as co-administrator of the estate, as he now
prays.
Heirs of Lasam v. Umengan
G.R. No. 168156, December 6, 2006
[testators capacity]
Facts: A complaint for unlawful detainer was filed against
Vicenta Umengan by herein petitioners, as heirs of
Rosendo Lasam. It was alleged that during the lifetime of
deceased Lasam, Vicenta Umengan was just temporarily
allowed to occupy the subject lot sometime in 1955. The
latter and her husband allegedly promised that they would
vacate the subject lot upon demand but never did.
Accordingly, the heirs of Rosendo Lasam were
constrained to institute the action for ejectment. They
alleged that they have a better right because they
inherited it from their father, showing a Last Will and
Testament which has not yet been probated.
In her defense, Vicenta Umengan alleged that her father,
Abdon Turingan, purchased the subject lot as evidenced
by the Deed of Sale.
The lower courts (MTC and RTC) ruled in favor of the
petitioners while the CA reversed the lower courts, on the
ground that the will has not yet been probated, hence, it
has not passed any right yet.
Issue: W/N the last will & testament which has not yet
probated could be a source of right
Held: NO. The Last Will and Testament cannot be relied
upon to establish the right of possession without having
been probated, the said last will and testament could not
be the source of any right.
Article 838 of the Civil Code is instructive on this: No will
shall pass either real or personal property unless it is
proved and allowed in accordance with the Rules of
Court.

14

Before any will can have force or validity it must be

probated. To probate a will means to prove before some
officer or tribunal, vested by law with authority for that
purpose, that the instrument offered to be proved is the
last will and testament of the deceased person whose
testamentary act it is alleged to be, and that it has been
executed, attested and published as required by law, and
that the testator was of sound and disposing mind. It is a
proceedings to establish the validity of the will. Moreover,
the presentation of the will for probate is mandatory and
is a matter of public policy.

not meet the definition of a will under Article 783 of the

Civil Code.

Since the will has not yet been probated, it has no effect
whatsoever and it cannot be the basis of any claim of any
right of possession. The defendants have a better right of
possession based on the deed of conveyances executed
by the owner in favor of the children, the defendants
herein.

Issue: Whether the document is Segundos a holographic

will, if so, is there preterition.

Seangio v. Reyes,
G.R. Nos. 1403371-72, November 27, 2006
[probate and right of disposition]
Facts: Alfredo Seangio together with the other private
respondents, filed a petition for the settlement of the
intestate estate of the late Segundo Seangio. They also
prayed for the apoointment of Elisa D. Seangio-Santos as
special administrator and guardian ad litem of Dy Yieng
Seangio, wife of the decedent.
Meanwhile, Dy Yieng Seangio, Barbara Seangio and
Virginia Seangio opposed the said petition. They
contended that Dy Yieng is still very healthy, that the
deceased Segundo executed a general power of attorney
in favor of Virginia, that Virginia is the most qualified to
serve as administrator, and that Segundo left a
holographic will.
Dy Yieng Seangio presented a document entitled
Kasulatan ng Pag-aalis ng Mana and filed a petition for
the probate of this document as Segundos holographic
will. In the said document, Segundo disinherited his first
son, Alfredo Seangio. According to the document, Alfredo
abused Segundo mentally and physically. Abuse in such
manner is one of the grounds for a valid disinheritance.
The two special proceedings were consolidated.
Alfredo moved for the dismissal of the probate of the
document saying that the document purporting to be the
holographic will of Segundo does not contain any
disposition of the estate of the deceased and thus does

RTC dismissed the petition for probate. According to the

lower court, there is preterition, as the only heirs
mentioned thereat are Alfredo and Virginia. The other
heirs being omitted, Article 854 of the New Civil Code
thus applies.
Dy Yieng then filed a petition for certiorari with preliminary
injuction before the Supreme Court.

Held: Yes, the Kasulatan ng Pag-aalis ng Mana is

Segundos holographic will.
Segundos document, although it may initially come
across as a mere disinheritance instrument, conforms to
the formalities of a holographic will prescribed by law. It is
written, dated and signed by the hand of Segundo
himself. An intent to dispose mortis causa can be clearly
deduced from the terms of the instrument, and while it
does not make an affirmative disposition of the latters
property, the disinheritance of Alfredo, nonetheless, is an
act of disposition in itself. In other words, the
disinheritance results in the disposition of the property of
the testator Segundo in favor of those who would
succeed in the absence of Alfredo.
With regard to the issue of preterition, the Court believes
that the compulsory heirs in the direct line were not
preterited in the will. It was, in the Courts opinion,
Segundos last expression to bequeath his estate to all
his compulsory heirs, with the sole exception of Alfredo.
Also, Segundo did not institute an heir16 to the exclusion
of his other compulsory heirs. The mere mention of the
name of one of the petitioners, Virginia, in the document
did not operate to institute her as the universal heir. Her
name was included plainly as a witness to the altercation
between Segundo and his son, Alfredo.
Guevara v. Guevara,
G.R. No. L-48840 December 29, 1943
[no prescription]
Facts: On August 26, 1931, Victorino Guevara executed
a will in accordance with all the formalities required by
law. According to the said will, he gave several personal
properties to his son Ernesto, daughter Rosario, stepson
Piou, and stepdaughter Candida. He gave to his wife,

15

Angustia Posadas, a portion of parcel of land in

Pangasinan. He set aside 100 hectares of the same
parcel of land to be disposed of either by him during his
lifetime or by his attorney-in-fact Ernesto M. Guevara in
order to pay all his pending debts and to degray his
expenses and those of his family us to the time of his
death. Some of portion of the same parcel of land were
given to Ernesto and Rosario.
On July 12, 1933, Victorino executed whereby he
conveyed the southern half of the large parcel of land
which he had previously disposed in his will, for the to
payment all his debts, expenses of his last illness and his
own funeral expenses. As for the northern half of the
same parcel of land, he recognized that it is solely owned
by his son Ernesto, having bought it from Rafael T.
Puzon. Later on, the entire parcel of land was registered
in the name of Ernesto Guevara.
When Victorino Guevara died, his last will and testament
was not presented to the court for probate nor has any
administration proceeding ever been instituted for the
settlement of his estate. Ever since the death of Victorino
L. Guevara, his only legitimate son Ernesto M. Guevara
appears to have possessed the land adjudicated to him in
the registration proceeding and to have disposed of
various portions thereof for the purpose of paying the
debts left by his father.
Rosario Guevara, who appears to have had her father's
last will and testament in her custody, did nothing
judicially to invoke the testamentary dispositions made
therein in her favor, whereby the testator acknowledged
her as his natural daughter and, aside from certain
legacies and bequests, devised to her a portion of
21.6171 hectares of the large parcel of land described in
the will. But a little over four years after the testor's
demise, she commenced the present action against
Ernesto M. Guevara alone for the purpose getting her
legitime. It was only during the trial of this case that she
presented the will to the court, not for the purpose of
having it probated but only to prove that the deceased
Victirino L. Guevara had acknowledged her as his natural
daughter. Upon that proof of acknowledgment she
claimed her share of the inheritance from him, but on the
theory or assumption that he died intestate, because the
will had not been probated, for which reason, she
asserted, the betterment therein made by the testator in
favor of his legitimate son Ernesto M. Guevara should be
disregarded. Both the trial court and the Court of appeals
sustained that theory.

Held: No, it was not.

The Court holds that under section 1 of Rule 74, in
relation to Rule 76, if the decedent left a will and no debts
and the heirs and legatees desire to make an extrajudicial
partition of the estate, they must first present that will to
the court for probate and divide the estate in accordance
with the will. They may not disregard the provisions of the
will unless those provisions are contrary to law. Neither
may they so away with the presentation of the will to the
court for probate, because such suppression of the will is
contrary to law and public policy. The law enjoins the
probate of the will and public policy requires it, because
unless the will is probated and notice thereof given to the
whole world, the right of a person to dispose of his
property by will may be rendered nugatory, as is
attempted to be done in the instant case. Absent legatees
and devisees, or such of them as may have no
knowledge of the will, could be cheated of their
inheritance thru the collusion of some of the heirs who
might agree to the partition of the estate among
themselves to the exclusion of others.
In the instant case there is no showing that the various
legatees other than the present litigants had received
their respective legacies or that they had knowledge of
the existence and of the provisions of the will. Their right
under the will cannot be disregarded, nor may those
rights be obliterated on account of the failure or refusal of
the custodian of the will to present it to the court for
probate.
Even if the decedent left no debts and nobody raises any
question as to the authenticity and due execution of the
will, none of the heirs may sue for the partition of the
estate in accordance with that will without first securing its
allowance or probate by the court, first, because the law
expressly provides that "no will shall pass either real or
personal estate unless it is proved and allowed in the
proper court"; and, second, because the probate of a will,
which is a proceeding in rem, cannot be dispensed with
the substituted by any other proceeding, judicial or
extrajudicial, without offending against public policy
designed to effectuate the testator's right to dispose of his
property by will in accordance with law and to protect the
rights of the heirs and legatees under the will thru the
means provided by law, among which are the publication
and the personal notices to each and all of said heirs and
legatees. Nor may the court approve and allow the will
presented in evidence in such an action for partition,
which is one in personam, any more than it could decree

Issue: Whether the action made by Rosario was proper.

16

the registration under the Torrens system of the land

involved in an ordinary action for reinvindicacion or
partition.
Octavio Maloles II v. Pacita De Los Reyes Phillips
G.R. no. 133359; January 31, 2000
Facts: On July 20, 1995, Dr. Arturo de Santos, Filipino
and a resident of Makati City, filed a petition for probate of
his will in the Regional Trial Court, Branch 61, Makati,
docketed as Sp. Proc. No. M-4223. In his petition, Dr. De
Santos alleged that he had no compulsory heirs; that he
had named in his will as sole legatee and devisee the
Arturo de Santos Foundation, Inc.; that he disposed by
his will his properties with an approximate value of not
less than P2,000,000.00; and that copies of said will were
in the custody of the named executrix, private respondent
Pacita de los Reyes Phillips. On February 16, 1996,
Judge Fernando V. Gorospe, Jr. issued an order granting
the petition and allowing the will.
Petitioner personally appeared before this Court and was
placed on the witness stand and was directly examined
by the Court through "free wheeling" questions and
answers to give this Court a basis to determine the state
of mind of the petitioner when he executed the subject
will. After the examination, the Court is convinced that
petitioner is of sound and disposing mind and not acting
on duress, menace and undue influence or fraud, and
that petitioner signed his Last Will and Testament on his
own free and voluntary will and that he was neither forced
nor influenced by any other person in signing it.
From the foregoing facts, the Court finds that the
petitioner has substantially established the material
allegations contained in his petition. The Last Will and
Testament having been executed and attested as
required by law; that testator at the time of the execution
of the will was of sane mind and/or not mentally incapable
to make a Will; nor was it executed under duress or under
the influence of fear or threats; that it was in writing and
executed in the language known and understood by the
testator duly subscribed thereof and attested and
subscribed by three (3) credible witnesses in the
presence of the testator and of another; that the testator
and all the attesting witnesses signed the Last Will and
Testament freely and voluntarily and that the testator has
intended that the instrument should be his Will at the time
of affixing his signature thereto. Hence the petition for the
allowance of the Last Will and Testament of Arturo de
Santos is hereby APPROVED and ALLOWED.

Shortly after the probate of his will, Dr. De Santos died on

February 26, 1996. On April 3, 1996, petitioner Octavio S.
Maloles II filed a motion for intervention claiming that, as
the only child of Alicia de Santos (testators sister) and
Octavio L. Maloles, Sr., he was the sole full-blooded
nephew and nearest of kin of Dr. De Santos. He likewise
alleged that he was a creditor of the testator. Petitioner
thus prayed for the reconsideration of the order allowing
the will and the issuance of letters of administration in his
name.
On the other hand, private respondent Pacita de los
Reyes Phillips, the designated executrix of the will, filed a
motion for the issuance of letters testamentary with
Branch 61. Upon private respondents motion, Judge
Salvador Abad Santos of Branch 65 issued an order,
appointing her as special administrator of Dr. De Santoss
estate.
Issue: Whether or not the Honorable Regional Trial Court
- Makati, Branch 61 has lost jurisdiction to proceed with
the probate proceedings upon its issuance of an order
allowing the will of Dr. Arturo de Santos
Held: In cases for the probate of wills, it is well-settled
that the authority of the court is limited to ascertaining the
extrinsic validity of the will, i.e., whether the testator,
being of sound mind, freely executed the will in
accordance with the formalities prescribed by law.
Ordinarily, probate proceedings are instituted only after
the death of the testator, so much so that, after approving
and allowing the will, the court proceeds to issue letters
testamentary and settle the estate of the testator. The
cases cited by petitioner are of such nature. In fact, in
most jurisdictions, courts cannot entertain a petition for
probate of the will of a living testator under the principle of
ambulatory nature of wills.
However, Art. 838 of the Civil Code authorizes the filing of
a petition for probate of the will filed by the testator
himself. It provides:
No will shall pass either real or personal property unless it
is proved and allowed in accordance with the Rules of
Court.
The testator himself may, during his lifetime, petition the
court having jurisdiction for the allowance of his will. In
such case, the pertinent provisions of the Rules of Court
for the allowance of wills after the testators death shall
govern.

17

Facts:
Most of the cases that reach the courts involve either the
testamentary capacity of the testator or the formalities
adopted in the execution of wills. There are relatively few
cases concerning the intrinsic validity of testamentary
dispositions. It is far easier for the courts to determine the
mental condition of a testator during his lifetime than after
his death. Fraud, intimidation and undue influence are
minimized. Furthermore, if a will does not comply with the
requirements prescribed by law, the same may be
corrected at once. The probate during the testators life,
therefore, will lessen the number of contest upon wills.
Once a will is probated during the lifetime of the testator,
the only questions that may remain for the courts to
decide after the testators death will refer to the intrinsic
validity of the testamentary dispositions. It is possible, of
course, that even when the testator himself asks for the
allowance of the will, he may be acting under duress or
undue influence, but these are rare cases.
After a will has been probated during the lifetime
of the testator, it does not necessarily mean that he
cannot alter or revoke the same before his death. Should
he make a new will, it would also be allowable on his
petition, and if he should die before he has had a chance
to present such petition, the ordinary probate proceeding
after the testators death would be in order.
Thus, after the allowance of the will of Dr. De
Santos on February 16, 1996, there was nothing else for
Branch 61 to do except to issue a certificate of allowance
of the will pursuant to Rule 73, 12 of the Rules of Court.
Branch 61 of the Regional Trial Court of Makati
having begun the probate proceedings of the estate of the
deceased, it continues and shall continue to exercise said
jurisdiction to the exclusion of all others. It should be
noted that probate proceedings do not cease upon the
allowance or disallowance of a will but continues up to
such time that the entire estate of the testator had been
partitioned and distributed.
The fact that the will was allowed during the
lifetime of the testator meant merely that the partition and
distribution of the estate was to be suspended until the
latters death. In other words, the petitioner, instead of
filing a new petition for the issuance of letters
testamentary, should have simply filed a manifestation for
the same purpose in the probate court.

GROUNDS FOR DISALLOWANCE OF WILLS

Sps. Ajero v. CA
G.R. No. 106720, September 15, 1994
[grounds exclusive]

Annie Sand died in 1982. She left a holographic

will wherein Roberto and Thelma Ajero, Clemente Sand,
Meriam Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe
Sand, Lisa Sand and Dr. Jose Ajero, Sr. and their children
were named as devisees. Spouses Roberto and Thelma
Ajero instituted a special proceeding for the allowance of
decedents will. They alleged that at the time of its
execution, Annie Sand 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.
Clemente Sand opposed the petition saying that
the body of the will and the signature were not in
decedents handwriting; that it contained alterations and
corrections which were not duly signed by the decedent;
and that the will was procured by Spouses Ajero through
improper pressure and undue influence. Dr. Jose Ajero
also opposed the petition saying that Annie Sand is not
the sole owner of a house and lot in Agusan del Norte,
hence she cannot dispose of said property.
The trial court admitted the will to probate. It said
that the probate proceedings must decide only the
question of identity of the will, its due execution and the
testamentary capacity of the testatrix and that the court
finds no reason at all for the disallowance f the will for its
failure to comply with the formalities prescribed by law nor
for lack of testamentary capacity of the testatrix. The
Court of Appeals reversed the decision of the lower court.
It ruled that the will failed to meet the requirements for its
validity." It held that the decedent did not comply with
Articles 813 and 814 of the New Civil Code.
Spouses Ajero then filed an appeal by certiorari before
the Supreme Court.
Issue: Whether the will of Annie Sand should be allowed.
Held: Yes, the holographic will of Annie Sand should be
allowed.
In the case of holographic wills what assures authenticity
is the requirement that they be totally autographic or
handwritten by the testator himself, as provided under
Article 810 of the New Civil Code, which reads: Art. 810.
A person may execute a holographic will which must be
entirely written, dated, and signed by the hand of the
testator himself. It is subject to no other form, and may be
made in or out of the Philippines, and need not be
witnessed.

18

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.
INSTITUTION OF HEIR
Austria v. Reyes
G.R. No. L-23079, February 27, 1970
[invalidation of institution based on false cause;
requisites]
Facts: Basilia Austria vda. De Cruz filed with the CFI of
Rizal a petition for probate, ante mortem, of her last will
and testament. The probate was opposed by Ruben
Austria, Consuelo Austria-Benta and Lauro Austria Mozo
who are nephews and nieces of Basilia. The opposition
was dismissed and the will was allowed to probate.
According to the will, bulk of the estate of Basilia shall be
given to Perfecto Cruz, Benita Cruz-Menez, Isagani Cruz,
Alberto Cruz and Luz Cruz-Salonga, the adopted children
of Basilia.
When Basilia died, Perfecto Cruz was appointed as
executor without bond despite the blocking attempt
pursued by Ruben Austria.
Ruben Austria, together with the other petitioners, filed a
petition in intervention for partition alleging that they are
the nearest of kin of Basilia, and that Perfecto Cruz and
the other respondents were not adopted by Basilia in
accordance with law, hence they should be considered as
mere strangers to the decendent with no right to succeed
as heirs.
The genuineness of the adoption of papers of Ruben
Austria and his adopted siblings were examined by the
court. While the adoption papers were being examined,
Benita Cruz-Menez entered an appearance separately
from her brother Perfecto and filed a motion asking the
lower court to confine Ruben Autsrias intervention,
should it be permitted, to properties not disposed of in the
will of Basilia. The lower court approved the motion of
Benita. It also ruled that the validity or invalidity of the

adoption is not material nor decisive on the efficacy of the

institution of heirs.
Hence, Ruben Austria filed a petition for certiorari, praying
to annul the orders of the lower court. Petitioners content
that Basilia was deceived into believing that she was
legally bound to bequeath one-hald of her entire estate to
Perfecto Cruz et al as the latters legitime. They also
content that had the deceased known the adoption to be
spurious , she would not have instituted the respondents
at all since the sole basis of the institution is her belief
that Perfecto et al were her compulsory heirs.
Issue: Did the lower court act in violation of the rights of
the parties in barring the petitioners nephews and niece
from registering their claim even to properties adjudicated
by the decedent in her will?
Held: No, the lower court did not err in its decision.
Before the institution of heirs may be annulled under
article 850 of the Civil Code, the following requisites must
concur: First, the cause for the institution of heirs must be
stated in the will; second, the cause must be shown to be
false; and third, it must appear from the face of the will
that the testator would not have made such institution if
he had known the falsity of the cause.
The petitioners would have us imply, from the use of the
terms, "sapilitang tagapagmana" (compulsory heirs) and
"sapilitang mana" (legitime), that the impelling reason or
cause for the institution of the respondents was the
testatrix's belief that under the law she could not do
otherwise. If this were indeed what prompted the testatrix
in instituting the respondents, she did not make it known
in her will. Surely if she was aware that succession to the
legitime takes place by operation of law, independent of
her own wishes, she would not have found it convenient
to name her supposed compulsory heirs to their legitimes.
Her express adoption of the rules on legitimes should
very well indicate her complete agreement with that
statutory scheme. One fact prevails, however, and it is
that the decedent's will does not state in a specific or
unequivocal manner the cause for such institution of
heirs.
Even if we should accept the petitioners' theory that the
decedent instituted the respondents Perfecto Cruz, et al.
solely because she believed that the law commanded her
to do so, on the false assumption that her adoption of
these respondents was valid, still such institution must
stand.

19

Article 850 of the Civil Code is a positive injunction to

ignore whatever false cause the testator may have written
in his will for the institution of heirs. Such institution may
be annulled only when one is satisfied, after an
examination of the will, that the testator clearly would not
have made the institution if he had known the cause for it
to be false.
The decedent's will, which alone should provide the
answer, is mute on this point or at best is vague and
uncertain. The phrases, "mga sapilitang tagapagmana"
and "sapilitang mana," were borrowed from the language
of the law on succession and were used, respectively, to
describe the class of heirs instituted and the abstract
object of the inheritance. They offer no absolute indication
that the decedent would have willed her estate other than
the way she did if she had known that she was not bound
by law to make allowance for legitimes. Her disposition of
the free portion of her estate which largely favored the
respondent Perfecto Cruz, the latter's children, and the
children of the respondent Benita Cruz, shows a
perceptible inclination on her part to give to the
respondents more than what she thought the law
enjoined her to give to them.
JLT Agro, Inc. v. Balansang
G.R. No. 141882, March 11, 2005
[preterition]
Facts: Don Julian L. Teves (Don Julian) contracted two
marriages, first with Antonia Baena (Antonia), and after
her death, with Milagros Donio Teves (Milagros Donio).
Don Julian had two children with Antonia, namely: Josefa
Teves Escao (Josefa) and Emilio Teves (Emilio). He had
also four (4) children with Milagros Donio, namely: Maria
Evelyn Donio Teves (Maria Evelyn), Jose Catalino Donio
Teves (Jose Catalino), Milagros Reyes Teves (Milagros
Reyes) and Pedro Reyes Teves (Pedro). W hen Antonia
died, the land was among the properties involved in an
action for partition and damages docketed as Civil Case
No. 3443 entitled " Josefa Teves Escao v. Julian Teves,
Emilio B. Teves, et al. Milagros Donio, the second wife of
Don Julian, participated as an intervenor. Thereafter, the
parties to the case entered into a Compromise
Agreement which embodied the partition of all the
properties of Don Julian.
The CFI decision declared a tract of land known as
Hacienda Medalla Milagrosa as property owned in
common by Don Julian and his two (2) children of the first
marriage. The property was to remain undivided during

the lifetime of Don Julian. Josefa and Emilio likewise were

given other properties at Bais, including the electric plant,
the "movie property," the commercial areas, and the
house where Don Julian was living. The remainder of the
properties was retained by Don Julian, including Lot No.
63.
On 16 November 1972, Don Julian, Emilio and Josefa
executed a Deed of Assignment of Assets with
Assumption of Liabilities in favor of J.L.T. Agro, Inc.
(petitioner). This instrument which constitutes a
supplement to the earlier deed of assignment transferred
ownership over Lot No. 63, among other properties, in
favor of petitioner. On 14 April 1974, Don Julian died
intestate.
On the strength of the Supplemental Deed in its favor,
petitioner sought the registration of the subject lot in its
name. A court, so it appeared, issued an order cancelling
OCT No. 5203 in the name of spouses Don Julian and
Antonia on 12 November 1979, and on the same date a
new TCT was issued. Since then, petitioner has been
paying taxes assessed on the subject lot.
Meanwhile, Milagros Donio and her children had
immediately taken possession over the subject lot
after the execution of the Compromise Agreement.
Subsequently, Milagros Donio and her children executed
a Deed of Extrajudicial Partition of Real Estate dated 18
March 1980. In the deed of partition, Lot No. 63 was
allotted to Milagros Donio and her two (2) children, Maria
Evelyn and Jose Catalino. Unaware that the subject lot
was already registered in the name of petitioner in
1979, respondents bought Lot No. 63 from Milagros
Donio as evidenced by the Deed of Absolute Sale of
Real Estate dated 9 November 1983.
At the Register of Deeds while trying to register the deed
of absolute sale, respondents discovered that the lot was
already titled in the name of petitioner. After hearing, the
trial court dismissed the complaint filed by respondents.
The trial court, among others, ordered respondents to
vacate the subject land, particularly identified as Lot No.
63 registered under Transfer Certificate of Title No. It
added that the direct adjudication of the properties listed
in the Compromise Agreement was only in favor of Don
Julian and his two children by the first marriage, Josefa
and Emilio. According to the trial court, the properties
adjudicated in favor of Josefa and Emilio comprised their
shares in the estate of their deceased mother Antonia, as
well as their potential share in

20

the estate of Don Julian upon the latters death. Thus,

upon Don Julians death, Josefa and Emilio could not
claim any share in his estate, except their proper share in
the Hacienda Medalla Milagrosa which was adjudicated in
favor of Don Julian in the Compromise Agreement. As
such, the properties adjudicated in favor of Don Julian,
except Hacienda Medalla Milagrosa, were free from the
forced legitimary rights of Josefa and Emilio, and Don
Julian was under no impediment to allocate the subject
lot, among his other properties, to Milagros Donio and her
four (4) children.
With Lot No. 63 being the conjugal property of Don Julian
and Antonia, the trial court also declared that Milagros
Donio and her children had no hereditary rights thereto
except as to the conjugal share of Don Julian, which they
could claim only upon the death of the latter.
On appeal, the Court of Appeals, however, reversed the
trial courts decision. Per the appellate court, the
Compromise Agreement incorporated in CFI decision
dated 31 January 1964, particularly paragraph 13
thereof, determined, adjudicated and reserved to Don
Julians two sets of heirs their future legitimes in his
estate except as regards his (Don Julians) share in
Hacienda Medalla Milagrosa. The disposition in the CFI
decision constitutes res judicata. Don Julian could have
disposed of only his conjugal share in the Hacienda
Medalla Milagrosa.
The appellate court likewise emphasized that nobody in
his right judgment would preterit his legal heirs by simply
executing a document like the Supplemental Deed which
practically covers all properties which Don Julian had
reserved in favor of his heirs from the second marriage.
Aggrieved by the appellate court s decision, petitioner
elevated it to this Court via a petition for review on
certiorari, raising pure questions of law.
Issue: Whether future legitime can be determined,
adjudicated and reserved prior to the death of Don Julian.
Held: As a general rule, no. [The Courts] declaration in
Blas v. Santos is relevant, where [it] defined future
inheritance as any property or right not in existence or
capable of determination at the time of the contract, that a
person may in the future acquire by succession. Article
1347 of the New Civil Code explicitly provides:
ART. 1347. All things which are not outside the commerce
of men, including future things, may be the object of a

contract. All rights which are not intransmissible may also

be the object of contracts.
No contract may be entered into upon future inheritance
except in cases expressly authorized by law.
Well-entrenched is the rule that all things, even future
ones, which are not outside the commerce of man may
be the object of a contract. The exception is that no
contract may be entered into with respect to future
inheritance, and the exception to the exception is the
partition inter vivos referred to in Article 1080.
For the inheritance to be considered "future," the
succession must not have been opened at the time of the
contract. A contract may be classified as a contract upon
future inheritance, prohibited under
the second
paragraph of Article 1347, where the following requisites
concur:
(1) That the succession has not yet been opened;
(2) That the object of the contract forms part of the
inheritance; and
(3) That the promissor has, with respect to the object, an
expectancy of a right which is purely hereditary in nature.
The first paragraph of Article 1080, which provides the
exception to the exception and therefore aligns with the
general rule on future things, reads:
ART. 1080. Should a person make a partition of his estate
by an act inter vivos, or by will, such partition shall be
respected, insofar as it does not prejudice the legitime of
the compulsory heirs.
In interpreting this provision, Justice Edgardo Paras
advanced the opinion that if the partition is made by an
act inter vivos, no formalities are prescribed by the
Article.The partition will of course be effective only after
death.
It does not necessarily require the formalities of a will for
after all it is not the partition that is the mode of acquiring
ownership. Neither will the formalities of a donation be
required since donation will not be the mode of acquiring
the ownership here after death; since no will has been
made it follows that the mode will be succession
(intestate succession). Besides, the partition here is
merely the physical determination of the part to be given
to each heir.
Article 1056 of the old Civil Code (now Article 1080)
authorizes a testator to partition inter vivos his property,

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and distribute them among his heirs, and this partition is

neither a donation nor a testament, but an instrument of a
special character, sui generis, which is revocable at any
time by the causante during his lifetime, and does not
operate as a conveyance of title until his death. It derives
its binding force on the heirs from the respect due to the
will of the owner of the property, limited only by his
creditors and the intangibility of the legitime of the forced
heirs (
The partition inter vivos of the properties of Don Julian is
undoubtedly valid pursuant to Article 1347. However,
considering that it would become legally operative only
upon the death of Don Julian, the right of his heirs from
the second marriage to the properties adjudicated to him
under the compromise agreement was but a mere
expectancy. It was a bare hope of succession to the
property of their father. Being the prospect of a future
acquisition, the interest by its nature was inchoate. It had
no attribute of property, and the interest to which it
related was at the time nonexistent and might never exist.
Evidently, at the time of the execution of the deed of
assignment covering Lot No. 63 in favor of petitioner, Don
Julian remained the owner of the property since
ownership over the subject lot would only pass to his
heirs from the second marriage at the time of his death.
Thus, as the owner of the subject lot, Don Julian retained
the absolute right to dispose of it during his lifetime. His
right cannot be challenged by Milagros Donio and her
children on the ground that it had already been
adjudicated to them by virtue of the compromise
agreement.
Nuguid v. Nuguid
G.R. No. L-23445, June 23, 1966
[preterition v. disinheritance]
Facts: On December 30,1962, Rosario Nuguid, single
without descendants, died. Surviving her were her
legitimate parents, Felix Nuguid and Paz Salonga Nuguid,
and 6 brothers and sisters namely: Alfredo, Federico,
Remedios, Conrado, Lourdes and Al berto.
Petitioner Remedios Nuiguid, surviving sister of Rosario,
filed in the Court of First Instance of Rizal a Holographic
Will allegedly executed by Rosario Nuguid on November
17, 1951, some 11 years before her demise. Petitioner
prayed that said will be admitted to probate and that
letters of administration with the will annexed be issued to
her.

Felix Nuguid and Paz Salonga Nuguid, parents of

Rosario, entered their opposition to the probate of her
will. On the gound that by the institution of Remedios as
universal heir of the deceased, for the reason that
oppositors, who are compulsory heirs of the deceased in
the direct ascending line, were illegally preterited and that
in consequence the institution is void.
Before a hearing was had on the petition for probate and
objection thereto, oppositors moved to dismiss on the
ground of absolute preterition.
The courts order of November 8, 1963, held that the will
in question is a complete nullity and will perforce create
intestacy of the estate of the deceased Rosario Nuguid
and dismissed the petition without costs.
A motion to reconsideration having been thwarted below,
petitioner came to this Court on appeal.
Issue: Whether or not there is preterition on instituting
Remedios as universal heir in which making the
holographic will void?
Held: Yes, there was preterition on omitting the parents of
Rosario in her Holographic will in which making the will
void. In this case, intestacy will govern because there was
no other provision in the will before us except the
institution of petitioner as universal heir, that institution, by
itself, was null and void.
Petitioners mainstay was that the present was a case of
ineffective disinheritance rather than on of preterition.
However, the argument failed to appreciate the distinction
between preterition and disinheritance.
PRETERITION consists in the omission in the testators
will of the forced heirs or any one of them, either they are
not mentioned or mentioned, they are neither instituted as
heirs nor expressly disinherited. IT IS PRESUMED TO
BE INVOLUNTARY
DISINHERITANCE
is a testamentary disposition
depriving any compulsory heir of his share in the legitime
for a case authorized by law. IT IS PRESUMED TO BE
VOLUNTARY, and must be supported by a legal cause
specified in the will itself.
In this case, the will here does not explicitly disinherit the
testatrixs parents. It simply omits their names altogether.
Said will rather than be labelled ineffective disinheritance

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is clearly one in which the said forced heirs suffer from

preterition.

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