1. Nuguid v.

Nuguid (17 SCRA 449)

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-23445

June 23, 1966

REMEDIOS NUGUID, petitioner and appellant,

vs.
FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and appellees.
Custodio O. Partade for petitioner and appellant.
Beltran, Beltran and Beltran for oppositors and appellees.
SANCHEZ, J.:
Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, without
descendants, legitimate or illegitimate. Surviving her were her legitimate parents, Felix Nuguid
and Paz Salonga Nuguid, and six (6) brothers and sisters, namely: Alfredo, Federico, Remedios,
Conrado, Lourdes and Alberto, all surnamed Nuguid.
On May 18, 1963, petitioner Remedios Nuguid 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.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate father and
mother of the deceased Rosario Nuguid, entered their opposition to the probate of her will.
Ground therefor, inter alia, is that by the institution of petitioner Remedios Nuguid as universal
heir of the deceased, oppositors who are compulsory heirs of the deceased in the direct
ascending line were illegally preterited and that in consequence the institution is void.
On August 29, 1963, before a hearing was had on the petition for probate and objection thereto,
oppositors moved to dismiss on the ground of absolute preterition.
On September 6, 1963, petitioner registered her opposition to the motion to dismiss.1wph1.t

The court's 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 reconsider having been thwarted below, petitioner came to this Court on appeal.
1. Right at the outset, a procedural aspect has engaged our attention. The case is for the probate
of a will. The court's area of inquiry is limited to an examination of, and resolution on, the
extrinsic validity of the will. The due execution thereof, the testatrix's testamentary capacity, and
the compliance with the requisites or solemnities by law prescribed, are the questions solely to be
presented, and to be acted upon, by the court. Said court at this stage of the proceedings is not
called upon to rule on the intrinsic validity or efficacy of the provisions of the will, the legality of
any devise or legacy therein.1
A peculiar situation is here thrust upon us. The parties shunted aside the question of whether or
not the will should be allowed probate. For them, the meat of the case is the intrinsic validity of
the will. Normally, this comes only after the court has declared that the will has been duly
authenticated.2 But petitioner and oppositors, in the court below and here on appeal, travelled on
the issue of law, to wit: Is the will intrinsically a nullity?
We pause to reflect. If the case were to be remanded for probate of the will, nothing will be
gained. On the contrary, this litigation will be protracted. And for aught that appears in the
record, in the event of probate or if the court rejects the will, probability exists that the case will
come up once again before us on the same issue of the intrinsic validity or nullity of the will.
Result: waste of time, effort, expense, plus added anxiety. These are the practical considerations
that induce us to a belief that we might as well meet head-on the issue of the validity of the
provisions of the will in question.3 After all, there exists a justiciable controversy crying for
solution.
2. Petitioner's sole assignment of error challenges the correctness of the conclusion below that
the will is a complete nullity. This exacts from us a study of the disputed will and the applicable
statute.
Reproduced hereunder is the will:
Nov. 17, 1951
I, ROSARIO NUGUID, being of sound and disposing mind and memory, having amassed a
certain amount of property, do hereby give, devise, and bequeath all of the property which I may
have when I die to my beloved sister Remedios Nuguid, age 34, residing with me at 38-B Iriga,

Q.C. In witness whereof, I have signed my name this seventh day of November, nineteen
hundred and fifty-one.
(Sgd.) Illegible
T/ ROSARIO NUGUID
The statute we are called upon to apply in Article 854 of the Civil Code which, in part, provides:
ART. 854. The preterition or omission of one, some, or all of the compulsory heirs in the
direct line, whether living at the time of the execution of the will or born after the death
of the testator, shall annul the institution of heir; but the devises and legacies shall be
valid insofar as they are not inofficious. ...
Except for inconsequential variation in terms, the foregoing is a reproduction of Article 814 of
the Civil Code of Spain of 1889, which is similarly herein copied, thus
Art. 814. The preterition of one or all of the forced heirs in the direct line, whether living
at the time of the execution of the will or born after the death of the testator, shall void
the institution of heir; but the legacies and betterments4 shall be valid, in so far as they are
not inofficious. ...
A comprehensive understanding of the term preterition employed in the law becomes a necessity.
On this point Manresa comments:
La pretericion consiste en omitar al heredero en el testamento. O no se le nombra siquiera
o aun nombrandole como padre, hijo, etc., no se le instituya heredero ni se le deshereda
expresamente ni se le asigna parte alguna de los bienes, resultando privado de un modo
tacito de su derecho a legitima.
Para que exista pretericion, con arreglo al articulo 814, basta que en el testamento omita
el testador a uno cualquiera de aquellos a quienes por su muerte corresponda la herencia
forzosa.
Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que la omision
sea completa; que el heredero forzoso nada reciba en el testamento.
It may now appear trite bat nonetheless helpful in giving us a clear perspective of the problem
before us, to have on hand a clear-cut definition of the word annul:
To "annul" means to abrogate, to make void ... In re Morrow's Estate, 54 A. 342, 343, 204
Pa. 484.6

The word "annul" as used in statute requiring court to annul alimony provisions of
divorce decree upon wife's remarriage means to reduce to nothing; to annihilate;
obliterate; blot out; to make void or of no effect; to nullify; to abolish. N.J.S.A. 2:50
38 (now N.J.S. 2A:34-35). Madden vs. Madden, 40 A. 2d 611, 614, 136 N..J Eq. 132.7
ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect; to
nullify; to abolish; to do away with. Ex parte Mitchell, 123 W. Va. 283, 14 S.E. 2d. 771,
774.8
And now, back to the facts and the law. The deceased Rosario Nuguid left no descendants,
legitimate or illegitimate. But she left forced heirs in the direct ascending line her parents, now
oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will completely omits both of them:
They thus received nothing by the testament; tacitly, they were deprived of their legitime; neither
were they expressly disinherited. This is a clear case of preterition. Such preterition in the words
of Manresa "anulara siempre la institucion de heredero, dando caracter absoluto a este
ordenamiento referring to the mandate of Article 814, now 854 of the Civil Code.9 The onesentence will here institutes petitioner as the sole, universal heir nothing more. No specific
legacies or bequests are therein provided for. It is in this posture that we say that the nullity is
complete. Perforce, Rosario Nuguid died intestate. Says Manresa:
En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir, en todo o
en parte? No se aade limitacion alguna, como en el articulo 851, en el que se expresa
que se anulara la institucion de heredero en cuanto prejudique a la legitima del
deseheredado Debe, pues, entenderse que la anulacion es completa o total, y que este
articulo como especial en el caso que le motiva rige con preferencia al 817. 10
The same view is expressed by Sanchez Roman:
La consecuencia de la anulacion o nulidad de la institucion de heredero por pretericion de
uno, varios o todos los forzosos en linea recta, es la apertura de la sucesion intestada total
o parcial. Sera total, cuando el testador que comete la pretericion, hubiese dispuesto de
todos los bienes por titulo universal de herencia en favor de los herederos instituidos,
cuya institucion se anula, porque asi lo exige la generalidad del precepto legal del art.
814, al determinar, como efecto de la pretericion, el de que "anulara la institucion de
heredero." ... 11
Really, as we analyze the word annul employed in the statute, there is no escaping the conclusion
that the universal institution of petitioner to the entire inheritance results in totally abrogating the
will. Because, the nullification of such institution of universal heir without any other
testamentary disposition in the will amounts to a declaration that nothing at all was written.
Carefully worded and in clear terms, Article 854 offers no leeway for inferential interpretation.

Giving it an expansive meaning will tear up by the roots the fabric of the statute. On this point,
Sanchez Roman cites the "Memoria annual del Tribunal Supreme, correspondiente a 1908",
which in our opinion expresses the rule of interpretation, viz:
... El art. 814, que preceptua en tales casos de pretericion la nulidad de la institucion de
heredero, no consiente interpretacion alguna favorable a la persona instituida en el
sentido antes expuesto aun cuando parezca, y en algun caso pudiera ser, mas o menos
equitativa, porque una nulidad no significa en Derecho sino la suposicion de que el hecho
o el acto no se ha realizado, debiendo por lo tanto procederse sobre tal base o supuesto, y
consiguientemente, en un testamento donde falte la institucion, es obligado llamar a los
herederos forzosos en todo caso, como habria que llamar a los de otra clase, cuando el
testador no hubiese distribudo todos sus bienes en legados, siendo tanto mas obligada esta
consecuencia legal cuanto que, en materia de testamentos, sabido es, segun tiene
declarado la jurisprudencia, con repeticion, que no basta que sea conocida la voluntad de
quien testa si esta voluntad no aparece en la forma y en las condiciones que la ley ha
exigido para que sea valido y eficaz, por lo que constituiria una interpretacion arbitraria,
dentro del derecho positivo, reputar como legatario a un heredero cuya institucion fuese
anulada con pretexto de que esto se acomodaba mejor a la voluntad del testador, pues aun
cuando asi fuese, sera esto razon para modificar la ley, pero no autoriza a una
interpretacion contraria a sus terminos y a los principios que informan la
testamentifaccion, pues no porque parezca mejor una cosa en el terreno del Derecho
constituyente, hay razon para convereste juicio en regla de interpretacion, desvirtuando y
anulando por este procedimiento lo que el legislador quiere establecer. 12
3. We should not be led astray by the statement in Article 854 that, annullment notwithstanding,
"the devises and legacies shall be valid insofar as they are not inofficious". Legacies and devises
merit consideration only when they are so expressly given as such in a will. Nothing in Article
854 suggests that the mere institution of a universal heir in a will void because of preterition
would give the heir so instituted a share in the inheritance. As to him, the will is inexistent.
There must be, in addition to such institution, a testamentary disposition granting him bequests
or legacies apart and separate from the nullified institution of heir. Sanchez Roman, speaking of
the two component parts of Article 814, now 854, states that preterition annuls the institution of
the heir "totalmente por la pretericion"; but added (in reference to legacies and bequests) "pero
subsistiendo ... todas aquellas otras disposiciones que no se refieren a la institucion de
heredero ... . 13 As Manresa puts it, annulment throws open to intestate succession the entire
inheritance including "la porcion libre (que) no hubiese dispuesto en virtud de legado, mejora o
donacion. 14
As aforesaid, there is no other provision in the will before us except the institution of petitioner
as universal heir. That institution, by itself, is null and void. And, intestate succession ensues.

4. Petitioner's mainstay is that the present is "a case of ineffective disinheritance rather than one
of preterition". 15 From this, petitioner draws the conclusion that Article 854 "does not apply to
the case at bar". This argument fails to appreciate the distinction between pretention and
disinheritance.
Preterition "consists in the omission in the testator's will of the forced heirs or anyone of them,
either because they are not mentioned therein, or, though mentioned, they are neither instituted as
heirs nor are expressly disinherited." 16 Disinheritance, in turn, "is a testamentary disposition
depriving any compulsory heir of his share in the legitime for a cause authorized by law. " 17 In
Manresa's own words: "La privacion expresa de la legitima constituye la desheredacion. La
privacion tacita de la misma se denomina pretericion." 18 Sanchez Roman emphasizes the
distinction by stating that disinheritance "es siempre voluntaria"; preterition, upon the other
hand, is presumed to be "involuntaria". 19 Express as disinheritance should be, the same must be
supported by a legal cause specified in the will itself. 20
The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It simply omits
their names altogether. Said will rather than be labeled ineffective disinheritance is clearly one in
which the said forced heirs suffer from preterition.
On top of this is the fact that the effects flowing from preterition are totally different from those
of disinheritance. Preterition under Article 854 of the Civil Code, we repeat, "shall annul the
institution of heir". This annulment is in toto, unless in the will there are, in addition,
testamentary dispositions in the form of devises or legacies. In ineffective disinheritance under
Article 918 of the same Code, such disinheritance shall also "annul the institution of heirs", put
only "insofar as it may prejudice the person disinherited", which last phrase was omitted in the
case of preterition. 21 Better stated yet, in disinheritance the nullity is limited to that portion of the
estate of which the disinherited heirs have been illegally deprived. Manresa's expressive
language, in commenting on the rights of the preterited heirs in the case of preterition on the one
hand and legal disinheritance on the other, runs thus: "Preteridos, adquiren el derecho a todo;
desheredados, solo les corresponde un tercio o dos tercios, 22 el caso. 23
5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to receive
their legitimes, but that the institution of heir "is not invalidated," although the inheritance of the
heir so instituted is reduced to the extent of said legitimes. 24
This is best answered by a reference to the opinion of Mr. Chief Justice Moran in the Neri case
heretofore cited, viz:
But the theory is advanced that the bequest made by universal title in favor of the
children by the second marriage should be treated as legado and mejora and, accordingly,
it must not be entirely annulled but merely reduced. This theory, if adopted, will result in

a complete abrogation of Articles 814 and 851 of the Civil Code. If every case of
institution of heirs may be made to fall into the concept of legacies and betterments
reducing the bequest accordingly, then the provisions of Articles 814 and 851 regarding
total or partial nullity of the institution, would. be absolutely meaningless and will never
have any application at all. And the remaining provisions contained in said article
concerning the reduction of inofficious legacies or betterments would be a surplusage
because they would be absorbed by Article 817. Thus, instead of construing, we would be
destroying integral provisions of the Civil Code.
The destructive effect of the theory thus advanced is due mainly to a failure to distinguish
institution of heirs from legacies and betterments, and a general from a special provision.
With reference to article 814, which is the only provision material to the disposition of
this case, it must be observed that the institution of heirs is therein dealt with as a thing
separate and distinct from legacies or betterments. And they are separate and distinct not
only because they are distinctly and separately treated in said article but because they are
in themselves different. Institution of heirs is a bequest by universal title of property that
is undetermined. Legacy refers to specific property bequeathed by a particular or special
title. ... But again an institution of heirs cannot be taken as a legacy. 25
The disputed order, we observe, declares the will in question "a complete nullity". Article 854 of
the Civil Code in turn merely nullifies "the institution of heir". Considering, however, that the
will before us solely provides for the institution of petitioner as universal heir, and nothing more,
the result is the same. The entire will is null.
Upon the view we take of this case, the order of November 8, 1963 under review is hereby
affirmed. No costs allowed. So ordered.

2. Reyes v. Barretto (19 SCRA 85)

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-17818

January 25, 1967

TIRSO T. REYES, as guardian of the minors Azucena Flordelis and Tirso, Jr., all
surnamed Reyes y Barretto, plaintiffs-appellants,
vs.
LUCIA MILAGROS BARRETTO-DATU, defendant-appellee.
Recto Law Office for plaintiff-appealant.
Deogracias T. Reyes and Associates for defendant-appellee.
REYES, J.B.L., J.:
Direct appeal from a judgment of the Court of First Instance of Bulacan, in its Civil Case No.
1084, dismissing the complaint of appellant Tirso T. Reyes and ordering the same to deliver to
the defendant-appellee, Lucia Milagros Barretto-Datu, the properties receivea by his deceasea
wife under the terms of the will of the late Bibiano Barretto, consisting of lots in Manila, Rizal,
Pampanga and Bulacan, valued at more than P200,000.
The decision appealed from sets the antecedents of the case to be as follows:
"This is an action to recover one-half share in the fishpond, located in the barrio of San
Roque, Hagonoy, Bulacan, covered by Transfer Certificate of Title No. T-13734 of the
Land Records of this Province, being the share of plaintiff's wards as minor heirs of the
deceased Salud Barretto, widow of plaintiff Tirso Reyes, guardian of said minors."
It appears that Bibiano Barretto was married to Maria Gerardo. During their lifetime they
acquired a vast estate, consisting of real properties in Manila, Pampanga, and Bulacan, covered
by Transfer Certificates of Title Nos. 41423, 22443, 8858, 32989, 31046, 27285, 6277, 6500,
2057, 6501, 2991, 57403 and 12507/T-337.
When Bibiano Barretto died on February 18, 1936, in the City of Manila, he left his share of
these properties in a will Salud Barretto, mother of plaintiff's wards, and Lucia Milagros Barretto
and a small portion as legacies to his two sisters Rosa Barretto and Felisa Barretto and his
nephew an nieces The usufruct o the fishpon situate i barrio Sa Roque Hagonoy,

Bulacan, above-mentioned, however, was reserved for his widow, Maria Gerardo I the
meantime Maria Gerardo was appointe administratrix. By virtue thereof, she prepared a
project of partition, which was signed by her in her own behalf and as guardian of the minor
Milagros Barretto. Said project of partition was approved by the Court of First Instance of
Manila on November 22, 1939. The distribution of the estate and the delivery of the shares of the
heirs followed forthwith. As a consequence, Salud Barretto took immediate possession of her
share and secured the cancellation of the original certificates of title and the issuance of new
titles in her own name.
Everything went well since then. Nobody was heard to complain of any irregularity in the
distribution of the said estate until the widow, Maria Gerardo died on March 5, 1948. Upon her
death, it was discovered that she had executed two wills, in the first of which, she instituted
Salud and Milagros, both surnamed Barretto, as her heirs; and, in the second, she revoked the
same and left all her properties in favor of Milagros Barretto alone. Thus, the later will was
allowed and the first rejected. In rejecting the first will presented by Tirso Reyes, as guardian of
the children of Salud Barretto, the lower court held that Salud was not the daughter of the
decedent Maria Gerardo by her husband Bibiano Barretto. This ruling was appealed to the
Supreme Court, which affirmed the same.1
Having thus lost this fight for a share in the estate of Maria Gerardo, as a legitimate heir of Maria
Gerardo, plaintiff now falls back upon the remnant of the estate of the deceased Bibiano Barretto,
which was given in usufruct to his widow Maria Gerardo. Hence, this action for the recovery of
one-half portion, thereof.
This action afforded the defendant an opportunity to set up her right of ownership, not only of
the fishpond under litigation, but of all the other properties willed and delivered to Salud
Barretto, for being a spurious heir, and not entitled to any share in the estate of Bibiano Barretto,
thereby directly attacking the validity, not only of the project of partition, but of the decision of
the court based thereon as well.
The defendant contends that the Project of Partition from which Salud acquired the fishpond in
question is void ab initio and Salud Barretto did not acquire any valid title thereto, and that the
court did not acquire any jurisdiction of the person of the defendant, who was then a minor.'
Finding for the defendant (now appellee), Milagros Barretto, the lower court declared the project
of partition submitted in the proceedings for the settlement of the estate of Bibiano Barretto
(Civil Case No. 49629 of the Court of First Instance of Manila) to be null and void ab initio (not
merely voidable) because the distributee, Salud Barretto, predecessor of plaintiffs (now
appellants), was not a daughter of the spouses Bibiano Barretto and Maria Gerardo. The nullity
of the project of partition was decreed on the basis of Article 1081 of the Civil Code of 1889
(then in force) providing as follows: .

A partition in which a person was believed to be an heir, without being so, has been
included, shall be null and void.
The court a quo further rejected the contention advanced by plaintiffs that since Bibiano Barretto
was free to dispose of one-third (1/3) of his estate under the old Civil Code, his will was valid in
favor of Salud Barretto (nee Lim Boco) to the extent, at least, of such free part. And it concluded
that, as defendant Milagros was the only true heir of Bibiano Barretto, she was entitled to recover
from Salud, and from the latter's children and successors, all the Properties received by her from
Bibiano's estate, in view of the provisions of Article 1456 of the new Civil Code of the
Philippines establishing that property acquired by fraud or mistake is held by its acquirer in
implied trust for the real owner. Hence, as stated at the beginning of this opinion, the Court a
quo not only dismissed the plaintiffs' complaint but ordered them to return the properties
received under the project of partition previously mentioned as prayed for in defendant Milagros
Barretto's counterclaim. However, it denied defendant's prayer for damages. Hence, this appeal
interposed by both plaintiffs and defendant.
Plaintiffs-appellants correctly point out that Article 1081 of the old Civil Code has been
misapplied to the present case by the court below. The reason is obvious: Salud Barretto
admittedly had been instituted heir in the late Bibiano Barretto's last will and testament together
with defendant Milagros; hence, the partition had between them could not be one such had with a
party who was believed to be an heir without really being one, and was not null and void under
said article. The legal precept (Article 1081) does not speak of children, or descendants, but of
heirs (without distinction between forced, voluntary or intestate ones), and the fact that Salud
happened not to be a daughter of the testator does not preclude her being one of the heirs
expressly named in his testament; for Bibiano Barretto was at liberty to assign the free portion of
his estate to whomsoever he chose. While the share () assigned to Salud impinged on the
legitime of Milagros, Salud did not for that reason cease to be a testamentary heir of Bibiano
Barretto.
Nor does the fact that Milagros was allotted in her father's will a share smaller than her legitime
invalidate the institution of Salud as heir, since there was here no preterition, or total ommission
of a forced heir. For this reason, Neri vs. Akutin, 72 Phil. 322, invoked by appellee, is not at all
applicable, that case involving an instance of preterition or omission of children of the testator's
former marriage.
Appellee contends that the partition in question was void as a compromise on the civil status of
Salud in violation of Article 1814 of the old Civil Code. This view is erroneous, since a
compromise presupposes the settlement of a controversy through mutual concessions of the
parties (Civil Code of 1889, Article 1809; Civil Code of the Philippines, Art. 2028); and the
condition of Salud as daughter of the testator Bibiano Barretto, while untrue, was at no time
disputed during the settlement of the estate of the testator. There can be no compromise over

issues not in dispute. And while a compromise over civil status is prohibited, the law nowhere
forbids a settlement by the parties over the share that should correspond to a claimant to the
estate.
At any rate, independently of a project of partition which, as its own name implies, is merely a
proposal for distribution of the estate, that the court may accept or reject, it is the court alone that
makes the distribution of the estate and determines the persons entitled thereto and the parts to
which each is entitled (Camia vs. Reyes, 63 Phil. 629, 643; Act 190, Section 750; Rule 90, Rules
of 1940; Rule 91, Revised Rules of Court), and it is that judicial decree of distribution, once
final, that vests title in the distributees. If the decree was erroneous or not in conformity with law
or the testament, the same should have been corrected by opportune appeal; but once it had
become final, its binding effect is like that of any other judgment in rem, unless properly set
aside for lack of jurisdiction or fraud.
It is thus apparent that where a court has validly issued a decree of distribution of the estate, and
the same has become final, the validity or invalidity of the project of partition becomes
irrelevant.
It is, however, argued for the appellee that since the court's distribution of the estate of the late
Bibiano Barretto was predicated on the project of partition executed by Salud Barretto and the
widow, Maria Gerardo (who signed for herself and as guardian of the minor Milagros Barretto),
and since no evidence was taken of the filiation of the heirs, nor were any findings of fact or law
made, the decree of distribution can have no greater validity than that of the basic partition, and
must stand or fall with it, being in the nature of a judgment by consent, based on a compromise.
Saminiada vs. Mata, 92 Phil. 426, is invoked in support of the proposition. That case is authority
for the proposition that a judgment by compromise may be set aside on the ground of mistake or
fraud, upon petition filed in due time, where petition for "relief was filed before the compromise
agreement a proceeding, was consummated" (cas. cit. at p. 436). In the case before us, however,
the agreement of partition was not only ratified by the court's decree of distribution, but actually
consummated, so much so that the titles in the name of the deceased were cancelled, and new
certificates issued in favor of the heirs, long before the decree was attacked. Hence, Saminiada
vs. Mata does not apply.
Moreover, the defendant-appellee's argument would be plausible if it were shown that the sole
basis for the decree of distribution was the project of partition. But, in fact, even without it, the
distribution could stand, since it was in conformity with the probated will of Bibiano Barretto,
against the provisions whereof no objection had been made. In fact it was the court's duty to do
so. Act 190, section 640, in force in 1939, provided: .
SEC. 640. Estate, How Administered. When a will is thus allowed, the court shall
grant letters testamentary, or letters of administration with the will annexed, and such

letters testamentary or of administration, shall extend to all the estate of the testator in the
Philippine Islands. Such estate, after the payment of just debts and expenses of
administration, shall be disposed of according to such will, so far as such will may
operate upon it; and the residue, if any, shall be disposed of as is provided by law in cases
of estates in these Islands belonging to persons who are inhabitants of another state or
country. (Emphasis supplied)
That defendant Milagros Barretto was a minor at the time the probate court distributed the estate
of her father in 1939 does not imply that the said court was without jurisdiction to enter the
decree of distribution. Passing upon a like issue, this Court ruled in Ramos vs. Ortuzar, 89 Phil.
Reports, pp. 741 and 742:
If we are to assume that Richard Hill and Marvin Hill did not formally intervene, still
they would be concluded by the result of the proceedings, not only as to their civil status
but as the distribution of the estate as well. As this Court has held in Manolo vs. Paredes,
47 Phil. 938, "The proceeding for probate is one in rem (40 Cyc., 1265) and the court
acquires jurisdiction over all persons interested, through the publication of the notice
prescribed by section 630 C.P.C.; and any order that any be entered therein is binding
against all of them." (See also in re Estate of Johnson, 39 Phil. 156.) "A final order of
distribution of the estate of a deceased person vests the title to the land of the estate in the
distributees". (Santos vs. Roman Catholic Bishop of Nueva Caceres, 45 Phil. 895.) There
is no reason why, by analogy, these salutary doctrines should not apply to intestate
proceedings.
The only instance that we can think of in which a party interested in a probate proceeding
may have a final liquidation set aside is when he is left out by reason of circumstances
beyond his control or through mistake or inadvertence not imputable to negligence. Even
then, the better practice to secure relief is reopening of the same case by proper motion
within the reglementary period, instead of an independent action the effect of which, if
successful, would be, as in the instant case, for another court or judge to throw out a
decision or order already final and executed and reshuffle properties long ago distributed
and disposed of.
It is well to observe, at this juncture, as this Court expressly declared in Reyes vs. Barretto Datu,
94 Phil. 446 (Am'd Rec. Appeal, pp. 156, 157), that:
... It is argued that Lucia Milagros Barretto was a minor when she signed the partition,
and that Maria Gerardo was not her judicially appointed guardian. The claim is not true.
Maria Gerardo signed as guardian of the minor. (Secs. 3 and 5, Rule 97, Rules of Court.)
The mere statement in the project of partion that the guardianship proceedings of the
minor Lucia Milagros Barretto are pending in the court, does not mean that the guardian

had not yet been appointed; it meant that the guardianship proceedings had not yet been
terminated, and as a guardianship proceedings begin with the appointment of a guardian,
Maria Gerardo must have been already appointed when she signed the project of
partition. There is, therefore, no irregularity or defect or error in the project of partition,
apparent on the record of the testate proceedings, which shows that Maria Gerardo had no
power or authority to sign the project of partition as guardian of the minor Lucia
Milagros Barretto, and, consequently, no ground for the contention that the order
approving the project of partition is absolutely null and void and may be attacked
collaterally in these proceedings.
So that it is now incontestable that appellee Milagros Barretto was not only made a party by
publication but actually appeared and participated in the proceedings through her guardian: she,
therefore, can not escape the jurisdiction of the Manila Court of First Instance which settled her
father's estate.
Defendant-appellee further pleads that as her mother and guardian (Maria Gerardo) could not
have ignored that the distributee Salud was not her child, the act of said widow in agreeing to the
oft-cited partition and distribution was a fraud on appellees rights and entitles her to relief. In the
first place, there is no evidence that when the estate of Bibiano Barretto was judicially settled
and distributed appellants' predecessor, Salud Lim Boco Barretto to, knew that she was not
Bibiano's child: so that if fraud was committed, it was the widow, Maria Gerardo, who was
solely responsible, and neither Salud nor her minor children, appellants herein, can be held liable
therefor. In the second placegranting that there was such fraud, relief therefrom can only be
obtained within 4 years from its discovery, and the record shows that this period had elapsed
long ago.
Because at the time of the distribution Milagros Barretto was only 16 years old (Exhibit 24), she
became of age five years later, in 1944. On that year, her cause of action accrued to contest on
the ground of fraud the court decree distributing her father's estate and the four-year period of
limitation started to run, to expire in 1948 (Section 43, Act. 190). In fact, conceding that
Milagros only became aware of the true facts in 1946 (Appellee's Brief, p. 27), her action still
became extinct in 1950. Clearly, therefore, the action was already barred when in August 31,
1956 she filed her counterclaim in this case contesting the decree of distribution of Bibiano
Barretto's estate.
In order to evade the statute of limitations, Milagros Barretto introduced evidence that appellant
Tirso Reyes had induced her to delay filing action by verbally promising to reconvey the
properties received by his deceased wife, Salud. There is no reliable evidence of the alleged
promise, which rests exclusively on the oral assertions of Milagros herself and her counsel. In
fact, the trial court made no mention of such promise in the decision under appeal. Even more:
granting arguendo that the promise was made, the same can not bind the wards, the minor

children of Salud, who are the real parties in interest. An abdicative waiver of rights by a
guardian, being an act of disposition, and not of administration, can not bind his wards, being
null and void as to them unless duly authorized by the proper court (Ledesma Hermanos vs.
Castro, 55 Phil. 136, 142).
In resume, we hold (1) that the partition had between Salud and Milagros Barretto in the
proceedings for the settlement of the estate of Bibiano Barretto duly approved by the Court of
First Instance of Manila in 1939, in its Civil Case No. 49629, is not void for being contrary to
either Article 1081 or 1814 of the, Civil Code of 1889; (2) that Milagros Barretto's action to
contest said partition and decree of distribution is barred by the statute of limitations; and (3) that
her claim that plaintiff-appellant guardian is a possessor in bad faith and should account for the
fruits received from the properties inherited by Salud Barretto (nee Lim Boco) is legally
untenable. It follows that the plaintiffs' action for partition of the fishpond described in the
complaint should have been given due course.
Wherefore, the decision of the Court of First Instance of Bulacan now under appeal is reversed
and set aside in so far as it orders plaintiff-appellant to reconvey to appellee Milagros Barretto
Datu the properties enumeracted in said decision, and the same is affirmed in so far as it denies
any right of said appellee to accounting. Let the records be returned to the court of origin, with
instructions to proceed with the action for partition of the fishpond (Lot No. 4, Plan Psu-4709),
covered by TCT No. T-13734 of the Office of the Register of Deeds of Bulacan, and for the
accounting of the fruits thereof, as prayed for in the complaint No costs.

3. Resurreccion v. Javier (63 Phil 599)

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-42539

October 23, 1936

In re Will of the deceased Felisa Javier. SULPICIO RESURRECCION, administratorappellee,

vs.
AGUSTIN JAVIER, ET AL., oppositors-appellants.
German Boncan for the appellants.
Perfecto Gabriel for the appellee.

AVANCEA, C. J.:
On October 18, 1932, Felisa Francisco Javier made a will instituting her husband Sulpicio
Resurreccion as her universal heir and, among other things, left a legacy of P2,000 in favor of
her brother Gil Francisco Javier. The testatrix died on January 22, 1933, and her will was
probated on March 8th of said year.
On October 12, 1933, the court, finding that Gil Francisco Javier died in August, 1930, even
before the testatrix made her will, ordered that the legacy of P2,000 in his favor revert to the fund
of the estate.
Gil Francisco Javier's children and heirs, claiming that they are entitled to receive the legacy of
P2,000 in favor of their father, appeal from the court's resolution ordering the reversion of this
amount to the funds of the estate.
The important thing to determine in this appeal is the effect of a legacy made in favor of a person
who was already dead not only before the death of the testatrix but even before the will was
made.
The testatrix, having no forced heirs, may dispose by will of all her property or any part thereof
in favor of any person qualified to acquire it (art. 763, Civil Code). Upon being instituted as
legatee by the testatrix, Gil Francisco Javier lacked civil personality, which is extinguished by

death, and, therefore, lacked capacity to inherit by will on the ground that he could not be the
subject of a right (art. 32, Civil Code). Consequently, his institution as a legatee had absolutely
no legal effect and his heirs are not now entitled to claim the amount of legacy. They cannot even
claim under the principle of representation because this takes place only in intestate inheritance.
Furthermore, as the legatee died before the testatrix, he could transmit nothing to his heirs (art.
766, Civil Code).
The appellants also contend that the will should be interpreted in the sense that the intention of
the testatrix was to leave the legacy to the heirs of Gil Francisco Javier. To this effect they have
introduced evidence to show that the testatrix, in making her will, knew that Gil Francisco Javier
was already dead. This court, however, does not find sufficient evidence to establish this fact.
The only witness who testified to this effect was Agustin Javier, Gil's brother, who alleged that
he was in the house of the testatrix in May, 1931, and in a conversation with her he informed her
that their brother Gil had already died, leaving a widow and children. But against this testimony
was presented that of Sulpicio Resurreccion, the widower of the testatrix, who testified that
Agustin Javier was in his house only once, in April or May, 1930, prior to the death of the
testatrix. According to this, he could not have given to the testatrix the information about Gil's
death which took place some months later, or in August, 1930.lwphi1.nt
Furthermore, if the testatrix, in making her will, knew that Gil was already dead and that he had
left children, it cannot be explained why she left the legacy to Gil and not to his children, if such
was her intention, particularly because, according to the evidence for the appellants, she knew
one of said children named Jose.
Consequently, in either case, whether the testatrix knew that Gil was already dead or she was
ignorant thereof, as she had left the legacy in favor of Gil, there is no reason to admit that it was,
nevertheless, her intention to leave it to his children.
The appealed judgment is affirmed, with costs to the appellants. So ordered.

4. Balanay v. Martinez
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

G.R. No. L-39247 June 27, 1975

In the Matter of the Petition to Approve the Will of Leodegaria Julian. FELIX BALANAY,
JR., petitioner,
vs.
HON. ANTONIO M. MARTINEZ, Judge of the Court of First Instance of Davao, Branch
VI; AVELINA B. ANTONIO and DELIA B. LANABAN, respondents.
Roberto M. Sarenas for petitioner.
Jose B. Guyo for private respondents.

AQUINO, J.:
Felix Balanay, Jr. appealed by certiorari from the order of the Court of First Instance of Davao
dated February 28, 1974, declaring illegal and void the will of his mother, Leodegaria Julian,
converting the testate proceeding into an intestate proceeding and ordering the issuance of the
corresponding notice to creditors (Special Case No. 1808). The antecedents of the appeal are as
follows:
Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on February 12, 1973 in Davao City at
the age of sixty-seven. She was survived by her husband, Felix Balanay, Sr., and by their six
legitimate children named Felix Balanay, Jr., Avelina B. Antonio, Beatriz B. Solamo, Carolina B.
Manguiob, Delia B. Lanaban and Emilia B. Pabaonon.
Felix J. Balanay, Jr. filed in the lower court a petition dated February 27, 1973 for the probate of
his mother's notarial will dated September 5, 1970 which is written in English. In that will
Leodegaria Julian declared (a) that she was the owner of the "southern half of nine conjugal lots
(par. II); (b) that she was the absolute owner of two parcels of land which she inherited from her
father (par. III), and (c) that it was her desire that her properties should not be divided among her

heirs during her husband's lifetime and that their legitimes should be satisfied out of the fruits of
her properties (Par. IV).
Then, in paragraph V of the will she stated that after her husband's death (he was eighty-two
years old in 1973) her paraphernal lands and all the conjugal lands (which she described as "my
properties") should be divided and distributed in the manner set forth in that part of her will. She
devised and partitioned the conjugal lands as if they were all owned by her. She disposed of in
the will her husband's one half share of the conjugal assets. *
Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the will on the grounds of lack
of testamentary capacity, undue influence, preterition of the husband and alleged improper
partition of the conjugal estate. The oppositors claimed that Felix Balanay, Jr. should collate
certain properties which he had received from the testatrix.
Felix Balanay, Jr., in his reply to the opposition, attached thereto an affidavit of Felix Balanay,
Sr. dated April 18, 1973 wherein he withdrew his opposition to the probate of the will and
affirmed that he was interested in its probate. On the same date Felix Balanay, Sr. signed an
instrument captioned "Conformation (sic) of Division and Renunciation of Hereditary Rights"
wherein he manifested that out of respect for his wife's will he "waived and renounced' his
hereditary rights in her estate in favor of their six children. In that same instrument he confirmed
the agreement, which he and his wife had perfected before her death, that their conjugal
properties would be partitioned in the manner indicated in her will.
Avelina B. Antonio, an oppositor, in her rejoinder contended that the affidavit and
"conformation" of Felix Balanay, Sr. were void. The lower court in its order of June 18, 1973
"denied" the opposition and reset for hearing the probate of the will. It gave effect to the affidavit
and conformity of Felix Balanay, Sr. In an order dated August 28, 1973 it appointed its branch
clerk of court as special administrator of the decedent's estate.
Mrs. Antonio moved for the reconsideration of the lower court's order of June 18, 1973 on the
grounds (a) that the testatrix illegally claimed that she was the owner of the southern half of the
conjugal lots and (b) that she could not partition the conjugal estate by allocating portions of the
nine lots to her children. Felix Balanay, Jr., through his counsel, Hermenegildo Cabreros,
opposed that motion. The lower court denied it in its order of October 15, 1973.
In the meanwhile, another lawyer appeared in the case. David O. Montaa, Sr., claiming to be the
lawyer of petitioner Felix Balanay, Jr. (his counsel of record was Atty. Cabreros), filed a motion
dated September 25, 1973 for "leave of court to withdraw probate of alleged will of Leodegaria
Julian and requesting authority to proceed by intestate estate proceeding." In that motion
Montaa claimed to be the lawyer not only of the petitioner but also of Felix Balanay, Sr.,
Beatriz B. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon.

Montaa in his motion assailed the provision of the will which partitioned the conjugal assets or
allegedly effected a compromise of future legitimes. He prayed that the probate of the will be
withdrawn and that the proceeding be converted into an intestate proceeding. In another motion
of the same date he asked that the corresponding notice to creditors be issued.
Avelina B. Antonio and Delia B. Lanaban, through Atty. Jose B. Guyo, in their comments dated
October 15, 1973 manifested their conformity with the motion for the issuance of a notice to
creditors. They prayed that the will be declared void for being contrary to law and that an
intestacy be declared.
The lower court, acting on the motions of Atty. Montaa, assumed that the issuance of a notice to
creditors was in order since the parties had agreed on that point. It adopted the view of Attys.
Montaa and Guyo that the will was void. So, in its order of February 28, 1974 it dismissed the
petition for the probate, converted the testate proceeding into an intestate proceeding, ordered the
issuance of a notice to creditors and set the intestate proceeding for hearing on April 1 and 2,
1974. The lower court did not abrogate its prior orders of June 18 and October 15, 1973. The
notice to creditors was issued on April 1, 1974 and published on May 2, 9 and 16 in the Davao
Star in spite of petitioner's motion of April 17, 1974 that its publication be held in abeyance.
Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas, in a verified motion dated April
15, 1974, asked for the reconsideration of the lower court's order of February 28, 1974 on the
ground that Atty. Montaa had no authority to withdraw the petition for the allowance of the will.
Attached to the motion was a copy of a letter dated March 27, 1974 addressed to Atty. Montaa
and signed by Felix Balanay, Jr., Beatriz V. Solamo, Carolina B. Manguiob and Emilia B.
Pabaonon, wherein they terminated Montaa's services and informed him that his withdrawal of
the petition for the probate of the will was without their consent and was contrary to their
repeated reminder to him that their mother's will was "very sacred" to them.
Avelina B. Antonio and Delia B. Lanaban opposed the motion for reconsideration. The lower
court denied the motion in its order of June 29, 1974. It clarified that it declared the will void on
the basis of its own independent assessment of its provisions and not because of Atty. Montaa's
arguments.
The basic issue is whether the probate court erred in passing upon the intrinsic validity of the
will, before ruling on its allowance or formal validity, and in declaring it void.
We are of the opinion that in view of certain unusual provisions of the will, which are of dubious
legality, and because of the motion to withdraw the petition for probate (which the lower court
assumed to have been filed with the petitioner's authorization), the trial court acted correctly in
passing upon the will's intrinsic validity even before its formal validity had been established. The
probate of a will might become an idle ceremony if on its face it appears to be intrinsically void.

Where practical considerations demand that the intrinsic validity of the will be passed upon, even
before it is probated, the court should meet the issue (Nuguid vs. Nuguid, 64 O.G. 1527, 17
SCRA 449. Compare with Sumilang vs. Ramagosa, L-23135, December 26, 1967, 21 SCRA
1369; Cacho vs. Udan, L-19996, April 30, 1965, 13 SCRA 693).1wph1.t
But the probate court erred in declaring, in its order of February 28, 1974 that the will was void
and in converting the testate proceeding into an intestate proceeding notwithstanding the fact that
in its order of June 18, 1973 , it gave effect to the surviving husband's conformity to the will and
to his renunciation of his hereditary rights which presumably included his one-half share of the
conjugal estate.
The rule is that "the invalidity of one of several dispositions contained in a will does not result in
the invalidity of the other dispositions, unless it is to be presumed that the testator would not
have made such other dispositions if the first invalid disposition had not been made" (Art. 792,
Civil Code). "Where some of the provisions of a will are valid and others invalid, the valid parts
will be upheld if they can be separated from the invalid without defeating the intention of the
testator or interfering with the general testamentary scheme, or doing injustice to the
beneficiaries" (95 C.J.S. 873).
The statement of the testatrix that she owned the "southern half of the conjugal lands is contrary
to law because, although she was a coowner thereof, her share was inchoate and proindiviso (Art.
143, Civil Code; Madrigal and Paterno vs. Rafferty and Concepcion, 38 Phil. 414). But That
illegal declaration does not nullify the entire will. It may be disregarded.
The provision of the will that the properties of the testatrix should not be divided among her
heirs during her husband's lifetime but should be kept intact and that the legitimes should be paid
in cash is contrary to article 1080 of the Civil Code which 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.
A parent who, in the interest of his or her family, to keep any agricultural,
industrial, or manufacturing enterprise intact, may avail himself of the right
granted him in this article, by ordering that the legitime of the other children to
whom the property is not assigned be paid in cash. (1056a)
The testatrix in her will made a partition of the entire conjugal estate among her six children (her
husband had renounced his hereditary rights and his one-half conjugal share). She did not assign
the whole estate to one or more children as envisaged in article 1080. Hence, she had no right to
require that the legitimes be paid in cash. On the other hand, her estate may remain undivided

only for a period of twenty years. So, the provision that the estate should not be divided during
her husband's lifetime would at most be effective only for twenty years from the date of her
death unless there are compelling reasons for terminating the coownership (Art. 1083, Civil
Code).
Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half share of the
conjugal partnership (Arts. 179[1] and 1041, Civil Code) but insofar as said renunciation
partakes of a donation of his hereditary rights and his one-half share in the conjugal estate (Art.
1060[1] Civil Code), it should be subject to the limitations prescribed in articles 750 and 752 of
the Civil Code. A portion of the estate should be adjudicated to the widower for his support and
maintenance. Or at least his legitime should be respected.
Subject to the foregoing observations and the rules on collation, the will is intrinsically valid and
the partition therein may be given effect if it does not prejudice the creditors and impair the
legitimes. The distribution and partition would become effective upon the death of Felix Balanay,
Sr. In the meantime, the net income should be equitably divided among the children and the
surviving spouse.
It should be stressed that by reason of the surviving husband's conformity to his wife's will and
his renunciation of his hereditary rights, his one-half conjugal share became a part of his
deceased wife's estate. His conformity had the effect of validating the partition made in
paragraph V of the will without prejudice, of course, to the rights of the creditors and the
legitimes of the compulsory heirs.
Article 793 of the Civil Code provides that "property acquired after the making of a will shall
only pass thereby, as if the testator had it at the time of making the will, should it expressly
appear by the will that such was his intention". Under article 930 of the Civil Code "the legacy or
devise of a thing belonging to another person is void, if the testator erroneously believed that the
thing pertained to him. But if the thing bequeathed, though not belonging to the testator when he
made the will, afterwards becomes his, by whatever title, the disposition shall take effect."
In the instant case there is no doubt that the testatrix and her husband intended to partition the
conjugal estate in the manner set forth in paragraph V of her will. It is true that she could dispose
of by will only her half of the conjugal estate (Art. 170, Civil Code) but since the husband, after
the dissolution of the conjugal partnership, had assented to her testamentary partition of the
conjugal estate, such partition has become valid, assuming that the will may be probated.
The instant case is different from the Nuguid case, supra, where the testatrix instituted as heir her
sister and preterited her parents. Her will was intrinsically void because it preterited her
compulsory heirs in the direct line. Article 854 of the Civil Code provides that "the preterition or
omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time

of the execution of the will or born after the death of the testator, shall annul the institution of
heir; but the devises and legacies, shall be valid insofar as they are not inofficious." Since the
preterition of the parents annulled the institution of the sister of the testatrix and there were no
legacies and devises, total intestacy resulted (.Art. 960[2], Civil Code).1wph1.t
In the instant case, the preterited heir was the surviving spouse. His preterition did not produce
intestacy. Moreover, he signified his conformity to his wife's will and renounced his hereditary
rights. .
It results that the lower court erred in not proceeding with the probate of the will as contemplated
in its uncancelled order of June 18, 1973. Save in an extreme case where the will on its face is
intrinsically void, it is the probate court's duty to pass first upon the formal validity of the will.
Generally, the probate of the will is mandatory (Art. 838, Civil Code; Guevara vs. Guevara, 74
Phil. 479 and 98 Phil. 249; Fernandez vs. Dimagiba, L-23638, October 12, 1967, 21 SCRA 428).
As aptly stated by Mr. Justice Barredo, "the very existence of a purported testament is in itself
prima facie proof that the supposed testator has willed that his estate should be distributed in the
manner therein provided, and it is incumbent upon the state that, if legally tenable, such desire be
given effect independent of the attitude of the parties affected thereby" (Resolution, Vda. de
Precilla vs. Narciso, L-27200, August 18, 1972, 46 SCRA 538, 565).
To give effect to the intention and wishes of the testatrix is the first and principal law in the
matter of testaments (Dizon-Rivera vs. Dizon, L-24561, June 30, 1970, 33 SCRA 554, 561).
Testacy is preferable to intestacy. An interpretation that will render a testamentary disposition
operative takes precedence over a construction that will nullify a provision of the will (Arts. 788
and 791, Civil Code).
Testacy is favored. Doubts are resolved in favor of testacy especially where the will evinces an
intention on the part of the testator to dispose of practically his whole estate. So compelling is the
principle that intestacy should be avoided and that the wishes of the testator should prevail that
sometimes the language of the will can be varied for the purpose of giving it effect (Austria vs.
Reyes, L-23079, February 27, 1970, 31 SCRA 754, 762).
As far as is legally possible, the expressed desire of the testator must be followed and the
dispositions of the properties in his will should be upheld (Estorque vs. Estorque, L-19573, June
30, 1970, 33 SCRA 540, 546).
The law has a tender regard for the wishes of the testator as expressed in his will because any
disposition therein is better than that which the law can make (Castro vs. Bustos, L-25913,
February 28, 1969, 27 SCRA 327, 341).

Two other errors of the lower court may be noticed. It erred in issuing a notice to creditors
although no executor or regular administrator has been appointed. The record reveals that it
appointed a special administrator. A notice to creditors is not in order if only a special
administrator has been appointed. Section 1, Rule 86 of the Rules of Court, in providing that
"immediately after granting letters of testamentary or of administration, the court shall issue a
notice requiring all persons having money claims against the decedent to file them in the office
of the clerk of said court" clearly contemplates the appointment of an executor or regular
administrator and not that of a special administrator.
It is the executor or regular administrator who is supposed to oppose the claims against the estate
and to pay such claims when duly allowed (See. 10, Rule 86 and sec. 1, Rule 88, Rules of Court).
We also take this occasion to point out that the probate court's appointment of its branch clerk of
court as special administrator (p. 30, Rollo) is not a salutary practice because it might engender
the suspicion that the probate Judge and his clerk of court are in cahoots in milking the
decedent's estate. Should the branch clerk of court commit any abuse or devastavit in the course
of his administration, the probate Judge might find it difficult to hold him to a strict
accountability. A court employee should devote his official time to his official duties and should
not have as a sideline the administration of a decedent's estate.
WHEREFORE, the lower court's orders of February 28, and June 29, 1974 are set aside and its
order of June 18, 1973, setting for hearing the petition for probate, is affirmed. The lower court is
directed to conduct further proceedings in Special Case No. 1808 in consonance with this
opinion. Costs, against the private respondents.
SO ORDERED.

5. Pecson v. Coronel
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-20374

October 11, 1923

In re of Dolores Coronel, deceased.

LORENZO PECSON, applicant-appellee,
vs.
AGUSTIN CORONEL, ET AL., opponents-appellants.
Fisher, DeWitt, Perkins and Brady for appellants.
Ross and Lawrence and Guillermo Lualhati for appellee.

ROMUALDEZ, J.:
On November 28, 1922, the Court of First Instance of Pampanga probated as the last will and
testament of Dolores Coronel, the document Exhibit A, which translated is as follows:
In the name of God, Amen:
I, Dolores Coronel, resident of Betis, Guagua, Pampanga, Philippine Islands, in the full
exercise of my mental faculties, do hereby make my last will and testament, and revoke
all former wills by me executed.
I direct and order that my body be buried in conformity with my social standing.
That having no forced heirs, I will all my properties, both movable and immovable, to my
nephew, Lorenzo Pecson, who is married to my niece Angela Coronel, in consideration of
the good services with he has rendered, and is rendering to me with good will and
disinterestedness and to my full satisfaction.
I name and appoint my aforesaid nephew, Lorenzo Pecson, executor of all that is willed
and ordained in this my will, without bond. Should he not be able to discharge his duties
as such executor for any reason whatsoever, I name and appoint as substitute executor my

grandson Victor Pecson, a native and resident of the town of Betis, without requiring him
to give bond. 1awph!l.net
All my real and paraphernal property as well as my credits for I declare that I have no
debts, are specified in an inventory.
In testimony whereof and as I do not know how to write my name, I have requested
Vicente J. Francisco to write my name at the foot hereof and on the left margin of each of
its sheet before me and all the undersigned witnesses this July 1, 1918.
VICENTE J. FRANCISCO
"For the testatrix Dolores Coronel
The foregoing document was executed and declared by Dolores Coronel to be her last
will and testament in our presence, and as the testatrix does not know how to write her
name, she requested Vicente J. Francisco to sign her name under her express direction in
our presence, at the foot, and on the left margin of each and every sheet, hereof. In
testimony whereof, each of us signed these presents in the presence of others and of the
testatrix at the foot hereof and on the margin of each and everyone of the two sheets of
which this document is composed, which are numbered "one" and "two" on the upper
part of the face thereof.
(Sgd.)
"MAXIMO VERGARA
LOS SANTOS

SOTERO DUMAUAL

MARCOS DE

MARIANO L. CRISOSTOMO
PABLO BARTOLOME
MARCOS DE LA CRUZ
DAMIAN CRISOSTOMO
On the left margin of the two sheets of the will the following signatures also appear:
Mariano L. Crisostomo, Vicente J. Francisco for the testatrix Dolores Coronel, M.
Vergara, Pablo Bartolome, Sotero Dumaual Crisostomo, Marcos de la Cruz, Marcos de
los Santos.
The petitioner for the probate of the will is Lorenzo Pecson, husband of Angela Coronel, who is
a niece of the deceased Dolores Coronel.
The opponents are: Eriberto Coronel, Tito Coronel, Julian Gozum, Cirila Santiago, widow of the
deceased Macario Gozum, in her own behalf and that of her three minor children, Hilarion
Coronel, Geronimo Coronel, Maria Coronel and her husband Eladio Gongco, Juana Bituin,
widow of the deceased Hipolito Coronel, in her own behalf and that of her three children,
Generosa, Maria, and Jose, all minors, Rosario Coronel, Agustin Coronel, Filomeno Coronel,

Casimiro Coronel, Alejo Coronel, Maria Coronel, Severina Coronel, Serapia Coronel, Maria
Juana de Ocampo, widow of the deceased Manuel Coronel, Dionisia Coronel, and her husband
Pantaleon Gunlao.
The probate of this will is impugned on the following grounds: (a) That the proof does not that
the document Exhibit A above copied contains the last will of Dolores Coronel, and (b) that the
attestation clause is not in accordance with the provisions of section 618 of the Code of Civil
Procedure, as amended by Act No. 2645.
These are the two principal questions which are debated in this case and which we will now
examine separately.
As to the first, which is the one raised in the first assignment of error, the appellants argue: First,
that it was improbable and exceptional that Dolores Coronel should dispose of her estate, as set
forth in the document Exhibit A, her true being that the same be distributed among her blood
relatives; and second, that if such will not expressed in fact, it was due to extraneous illegal
influence.
Let us examine the first point.
The opponents contend that it was not, nor could it be, the will of the testatrix, because it is not
natural nor usual that she should completely exclude her blood relatives from her vast estate, in
order to will the same to one who is only a relative by affinity, there appearing no sufficient
motive for such exclusion, inasmuch as until the death of Dolores Coronel, she maintained very
cordial relations with the aforesaid relatives who had helped her in the management and direction
of her lands. It appears, however, from the testimony of Attorney Francisco (page 71, transcript
of the stenographic notes) that Dolores Coronel revealed to him her suspicion against some of
her nephews as having been accomplices in a robbery of which she had been a victim.
As to whether or not Lorenzo Pecson rendered services to Dolores Coronel, the opponents admit
that he rendered them at least from the year 1914, although there is proof showing that he
rendered such services long before that time.
The appellants emphasize the fact that family ties in this country are very strongly knit and that
the exclusion of relative one's estate an exceptional case. It is true that ties of relationship in the
Philippines are very strong, but we understand that cases of preterition of relatives from the
inheritance are not rare. The liberty to dispose of one's estate by will when there are no forced
heirs is rendered sacred by the civil Code in force in the Philippines since 1889. It is so provided
in the first paragraph of article in the following terms:

Any person who was no forced heirs may dispose by will of all his property or any part of
it in favor of any person qualified to acquire it.
Even ignoring the precedents of this legal precept, the Code embodying it has been in force in
the Philippines for more than a quarter of a century, and for this reason it is not tenable to say
that the excercise of the liberty thereby granted is necessarily exceptional, where it is not shown
that the inhabitants of this country whose customs must have been take into consideration by the
legislator in adopting this legal precept, are averse to such a liberty.
As to preference given to Lorenzo Pecson, it is not purely arbitrary, nor a caprice or a whim of
the moment. The proof adduced by this appelle, although contradicted, shows by a
preponderance of evidence that besides the services which the opponents admit had been
rendered by him to Dolores Coronel since the year 1914, he had also rendered services prior to
that time and was the administrator and manager of the affairs of said Dolores in the last years of
her life. And that this was not a whim of the moment is shown by the fact that six years before
the execution of the will in question, said Lorenzo Pecson was named and appointed by Dolores
Coronel as her sole heir in the document Exhibit B, which, translated, is as follows:
1. That my present property was acquired by me by inheritance from my parents, but a
great part thereof was acquired by me by my own efforts and exertions;
2. That I have made no inventory of my properties, but they can be seen in the title deeds
in my possession and in the declarations of ownership;
3. That I institute Lorenzo Pecson, married to Angela Coronel, and a known resident of
the town, my heir to succeed to all my properties;
4. That I appoint my said heir, Lorenzo Pecson, as executor, and, in his default, Victor
Pecson, a resident of the same town;
5. That as to my burial and other things connected with the eternal rest of my soul, I leave
them to the sound direction of the aforesaid Lorenzo Pecson;
6. That as I cannot write I requested Martin Pangilinan, a native and resident of this town,
to write this will in accordance with my wishes and precise instructions.
In testimony whereof I had the said Martin Pangilinan write my name and surname, and
affixed my mark between my name and surname, and don Francisco Dumaual, Don
Mariano Sunglao, Don Sotero Dumaual, Don Marcos de la Cruz and Don Martin
Pangilinan signed as witnesses, they having been present at the beginning of, during, and
after, the execution of this my last will.

(Sgd.)

"DOLORES CORONEL

Witnesses:
(Sgd.)

"MARIANO SUNGLAO
MARCOS DE LA CRUZ
FRANCISCO DUMAUAL
SOTERO DUMAUAL
MARTIN PANGILINAN"

The appellants find in the testament Exhibit B something to support their contention that the
intention of Dolores Coronel was to institute the said Pecson not as sole beneficiary, but simply
as executor and distributor of all her estate among her heirs, for while Lorenzo Pecson's
contention that he was appointed sold beneficiary is based on the fact that he enjoyed the
confidence of Dolores Coronel in 1918 and administered all her property, he did not exclusively
have this confidence and administration in the year 1912. Although such administration and
confidence were enjoyed by Pecson always jointly with others and never exclusively, this fact
does not show that the will of the testatrix was to appoint Pecson only as executor and distributor
of her estate among the heirs, nor does it prevent her, the testatrix, from instituting him in 1912
or 1918 as sole beneficiary; nor does it constitute, lastly, a test for determining whether or not
such institution in favor of Pecson was the true will of the testatrix.
We find, therefore, nothing strange in the preterition made by Dolores Coronel of her blood
relatives, nor in the designation of Lorenzo Pecson as her sole beneficiary. Furthermore, although
the institution of the beneficiary here would not seem the most usual and customary, still this
would not be null per se.
In the absence of any statutory restriction every person possesses absolute dominion over
his property, and may bestow it upon whomsoever he pleases without regard to natural or
legal claim upon his bounty. If the testator possesses the requisite capacity to make a will,
and the disposition of his property is not affected by fraud of undue influence, the will is
not rendered invalid by the fact that it is unnatural, unreasonable, or unjust. Nothing can
prevent the testator from making a will as eccentric, as injudicious, or as unjust as
caprice, frivolity, or revenge can dictate. However, as has already been shown, the
unreasonable or unjustice of a will may be considered on the question of testamentary
capacity. (40 Cyc., 1079.)
The testamentary capacity of Dolores Coronel is not disputed in this case.

Passing to the second question, to wit, whether or not the true last will of Dolores Coronel was
expressed in the testament Exhibit A, we will begin with expounding how the idea of making the
aforesaid will here controverted was borne and carried out.
About the year 1916 or 1917, Dolores showed the document Exhibit B to Attorney Francisco
who was then her legal adviser and who, considering that in order to make the expression of her
last will more legally valid, though it necessary that the statement be prepared in conformity with
the laws in force at time of the death of the testatrix, and observing that the will Exhibit B lacked
the extrinsic formalities required by Act No. 2645 enacted after its execution, advised Dolores
Coronel that the will be remade. She followed the advice, and Attorney Francisco, after receiving
her instructions, drew the will Exhibit A in accordance therewith, and brought it to the house of
Dolores Coronel for its execution.
Pablo Bartolome read Exhibit A to Dolores Coronel in her presence and that of the witnesses and
asked her whether the will was in accordance with her wishes. Dolores Coronel answer that it
was, and requested her attorney, Mr. Francisco, to sign the will for her, which the attorney
accordingly did in the presence of the witnesses, who in turn signed it before the testatrix and in
the presence of each other.
Upon the filing of the motion for a rehearing on the first order allowing the probate of the will,
the opponents presented an affidavit of Pablo Bartolome to the effect that, following instructions
of Lorenzo Pecson, he had informed the testatrix that the contents of the will were that she
entrusted Pecson with the distribution of all her property among the relatives of the said Dolores.
But during the new trial Pablo Bartolome, in spite of being present in the court room on the day
of the trial, was not introduced as a witness, without such an omission having been satisfactorily
accounted for.
While it is true that the petitioner was bound to present Pablo Bartolome, being one of the
witnesses who signed the will, at the second hearing when the probate was controverted, yet we
cannot consider this point against the appellee for this was not raised in any of the assignments
of error made by the appellants. (Art. 20, Rules of the Supreme Court.)
On the other hand, it was incumbent upon the opponents to present Pablo Bartolome to prove
before the court the statement by him in his affidavit, since it was their duty to prove what they
alleged, which was that Dolores Coronel had not understood the true contents of the will Exhibit
A. Having suppressed, without explanation, the testimony of Pablo Bartolome, the presumption
is against the opponents and that is, that such a testimony would have been adverse had it been
produced at the hearing of the case before the court. (Sec 334, subsec. 5, Code of Civil
Procedure.)

The opponents call our attention to the fourth clause of the document which says: "I name and
appoint my aforesaid nephew, Lorenzo Pecson, executor of all that is willed and ordained in this
my will, without bond. Should he not be able to discharge his duties as such executor for any
reason whatsoever, I name and appoint as a substitute executor my grandson Victor Pecson,
resident of the town of Betis, without requiring him to give bond," and contend that this clause is
repugnant to the institution of Lorenzo Pecson as sole beneficiary of all her estate, for if such
was the intention of the testatrix, there would have been no necessity of appointing an executor,
nor any reason for designating a substitute in case that the first one should not be able to
discharge his duties, and they perceived in this clause the idea which, according to them, was not
expressed in the document, and which was that Pecson was simply to be a mere executor
entrusted with the distribution to the estate among the relatives of the testatrix, and that should he
not be able to do so, this duty would devolved upon his substitutes.
But it is not the sole duty of an executor to distribute the estate, which in estate succession, such
as the instant case, has to be distributed with the intervention of the court. All executor has,
besides, other duties and general and special powers intended for the preservation, defense, and
liquidation of the estate so long as the same has not reached, by order of the court, the hands of
those entitled thereto.
The fact that Dolores Coronel foresaw the necessity of an executor does not imply a negation of
her desire to will all her estate to Lorenzo Pecson. It is to be noted, furthermore, that in the will,
it was ordered that her body be given a burial in accordance with her social standing and she had
a perfect right to designate a person who should see to it that this order was complied with. One
of the functions of an executor is the fulfillment of what is ordained in the will.
It is argued that the will of the testatrix was to will her estate to her blood relatives, for such was
the promise made to Maria Coronel, whom Rosario Coronel tends to corroborate. We do not find
such a promise to have been sufficiently proven, and much less to have been seriously made and
coupled with a positive intention on the part of Dolores Coronel to fulfill the same. In the
absence of sufficient proof of fraud, or undue influence, we cannot take such a promise into
account, for even if such a promise was in fact made, Dolores Coronel could retract or forget it
afterwards and dispose of her estate as she pleased. Wills themselves, which contain more than
mere promises, are essentially revocable.
It is said that the true will of Dolores Coronel not expressed in the will can be inferred from the
phrase used by Jose M. Reyes in his deposition when speaking of the purpose for which Lorenzo
Pecson was to receive the estate, to wit:
in order that the latter might dispose of the estate in the most appropriate manner

Weight is given to this phrase from the circumstance that its author was requested by Attorney
Francisco to explain the contents of Exhibit B and had acted as interpreter between Dolores
Coronel and Attorney Francisco at their interviews previous to the preparation of Exhibit A, and
had translated into the Pampango dialect this last document, and, lastly, was present at the
execution of the will in question.
The disputed phrase "in order that the latter might dispose of the estate in the most appropriate
manner" was used by the witness Reyes while sick in a hospital and testifying in the course of
the taking of his deposition.
The appellants interpret the expression "dispose in the most appropriate manner" as meaning to
say "distribute it among the heirs." Limiting ourselves to its meaning, the expression is a broad
one, for the disposition may be effected in several and various ways, which may not necessarily
be a "distribution among the heirs," and still be a "disposition in the most appropriate manner."
"To dispose" is not the same as "to distribute."
To judge correctly the import of this phrase, the circumstances under which it was used must be
taken into account in this particular instance. The witness Reyes, the author of the phrase, was
not expressing his own original ideas when he used it, but was translating into Spanish what
Dolores Coronel had told him. According to the facts, the said witness is not a Spaniard, that is to
say, the Spanish language is not his native tongue, but, perhaps, the Pampango dialect. It is an
admitted fact based on reason and experience that when a person translates from one language to
another, it is easier for him to express with precision and accuracy when the version is from a
foreign language to a native one than vice-versa. The witness Reyes translated from the
Pampango dialect, which must be more familiar to him, to the Spanish language which is not his
own tongue. And judging from the language used by him during his testimony in this case, it
cannot be said that this witness masters the Spanish language. Thus is explained the fact that
when asked to give the reason for the appointment of an executor in the will, he should say at the
morning session that "Dolores Coronel did appoint Don Lorenzo Pecson and in his default,
Victor Pecson, to act during her lifetime, but not after he death," which was explained at the
afternoon session by saying "that Dolores Coronel did appoint Don Lorenzo Pecson executor of
all her estate during his lifetime and that in his default, either through death or incapacity, Mr.
Victor Pecson was appointed executor." Taking into account all the circumstances of this witness,
there is ground to attribute his inaccuracy as to the discharge of the duties of an executor, not to
ignorance of the elementary rule of law on the matter, for the practice of which he was qualified,
but to a non-mastery of the Spanish language. We find in this detail of translation made by the
witness Reyes no sufficient reason to believe that the will expressed by Dolores Coronel at the
said interview with Attorney Francisco was to appoint Lorenzo Pecson executor and mere
distributor of her estate among her heirs.

As to whether or not the burden of proof was on the petitioner to establish that he was the sole
legatee to the exclusion of the relatives of Dolores Coronel, we understand that it was not his
duty to show the reasons which the testatrix may have had for excluding her relatives from her
estate, giving preference to him. His duty was to prove that the will was voluntary and authentic
and he, who alleges that the estate was willed to another, has the burden of proving his
allegation.
Attorney Francisco is charged with having employed improper means of making Lorenzo Pecson
appear in the will as sole beneficiary. However, after an examination of all the proceedings had,
we cannot find anything in the behavior of this lawyer, relative to the preparation and execution
of the will, that would justify an unfavorable conclusion as to his personal and professional
conduct, nor that he should harbor any wrongful or fraudulent purpose.
We find nothing censurable in his conduct in advising Dolores Coronel to make a new will other
than the last one, Exhibit B (in the drawing of which he does not appear to her intervened), so
that the instrument might be executed with all the new formalities required by the laws then in
force; nor in the preparation of the new will substantially in accordance with the old one; nor in
the selection of attesting witnesses who were persons other than the relatives of Dolores Coronel.
Knowing, as he did, that Dolores was excluding her blood relatives from the inheritance, in spite
of her having been asked by him whether their exclusion was due to a mere inadvertence, there is
a satisfactory explanation, compatible with honorable conduct, why said attorney should
prescind from such relatives in the attesting of the will, to the end that no obstacle be placed in
the way to the probating thereof.
The fact that this attorney should presume that Dolores was to ask him to sign the will for her
and that he should prepare it containing this detail is not in itself fraudulent. There was in this
case reason so to presume, and it appears that he asked her, through Pablo Bartolome, whom she
wanted to sign the document in her stead.
No imputation can be made to this attorney of any interest in favoring Lorenzo Pecson in the
will, because the latter was already his client at the execution of said will. Attorney Francisco
denied this fact, which we cannot consider proven after examining the evidence.
The conduct observed by this attorney after the death of Dolores Coronel in connection with the
attempted arrangement between Lorenzo Pecson and the opponents, does not, in our opinion,
constitute any data leading to the conclusion that an heir different from the true one intended by
the testatrix should have been fraudulently made to appear instituted in the will exhibit A. His
attitude towards the opponents, as can be gathered from the proceedings and especially from his
letter Exhibit D, does not show any perverse or fraudulent intent, but rather a conciliatory
purpose. It is said that such a step was well calculated to prevent every possible opposition to the
probate of the will. Even admitting that one of his objects in entering into such negotiations was

to avoid every possible to the probate of the will, such object is not incompatible with good faith,
nor does it necessarily justify the inference that the heir instituted in the instrument was not the
one whom the testatrix wanted appointed.
The appellants find rather suspicious the interest shown by the said attorney in trying to persuade
Lorenzo Pecson to give them some share of the estate. These negotiations were not carried out by
the attorney out of his own initiative, but at the instance of the same opponent, Agustin Coronel,
made by the latter in his own behalf and that of his coopponents.
As to Lorenzo Pecson, we do not find in the record sufficient proof to believe that he should have
tried, through fraud or any undue influence, to frustrate the alleged intention of the testatrix to
leave her estate to her blood relatives. The opponents insinuate that Lorenzo Pecson employed
Attorney Francisco to carry out his reproachable designs, but such depraved instrumentality was
not proven, nor was it shown that said lawyer, or Lorenzo Pecson, should have contrived or put
into execution any condemnable plan, nor that both should have conspired for illegal purposes at
the time of the preparation and execution of the will Exhibit A.
Although Norberto Paras testified having heard, when the will was being read to Dolores
Coronel, the provision whereby the estate was ordered distributed among the heirs, the
preponderance of the evidence is to the effect that said Norberto Paras was not present at such
reading of the will. Appellant do not insist on the probative force of the testimony of this witness,
and do not oppose its being stricken out.
The data furnished by the case do not show, to our mind, that Dolores Coronel should have had
the intention of giving her estate to her blood relatives instead of to Lorenzo Pecson at the time
of the execution of the will Exhibit A, nor that fraud or whatever other illegal cause or undue
influence should have intervened in the execution of said testament. Neither fraud nor evil is
presumed and the record does not show either.
Turning to the second assignment of error, which is made to consist in the will having been
probated in spite of the fact that the attestation clause was not in conformity with the provision of
section 618 of the Code of Civil Procedure, as amended by Act No. 2645, let us examine the
tenor of such clause which literally is as follows:
The foregoing document was executed and declared by Dolores Coronel to be her last
will testament in our presence, and as testatrix does not know how to write her name, she
requested Vicente J. Francisco to sign her name under her express direction in our
presence at the foot and on the left margin of each and every sheet hereof. In testimony
whereof, each of us signed these presents in the presence of others of the testatrix at the
foot hereof and on the margin of each and everyone of the two pages of which this

document is composed. These sheets are numbered correlatively with the words "one and
"two on the upper part of the face thereof.
(Sgd.)
"Maximo Vergara,
Sotero Dumaual,
Marcos de los Santos,
Mariano
L. Crisostomo,
Pablo Bartolome,
Marcos de la Cruz,
Damian Crisostomo."
Appellants remark that it is not stated in this clause that the will was signed by the witnesses in
the presence of the testatrix and of each other, as required by section 618 of the Code of Civil
Procedure, as amended, which on this particular point provides the following:
The attestation shall state the number of sheets or pages used, upon which the will is
written, and the fact that the testator signed the will and every page thereof, or caused
some other person to write his name, under his express direction, in the presence of three
witnesses, and the latter witnessed and signed the will and all pages thereof in the
presence of the testator and of each other.
Stress is laid on the phrase used in the attestation clause above copied, to wit:
each of us signed in the presence of others.
Two interpretations can absolutely be given here to the expression "of others." One, that
insinuated by the appellants, namely, that it is equivalent to "of other persons," and the other, that
contended by the appellee, to wit, that the phrase should be held to mean "of the others," the
article "the" having inadvertently been omitted.
Should the first interpretation prevail and "other persons" be taken to mean persons different
from the attesting witnesses, then one of the solemnities required by law would be lacking.
Should the second be adopted and "of others" construed as meaning the other witnesses to the
will, then the law would have been complied with in this respect.
Including the concomitant words, the controverted phrase results thus: "each of us signed these
presents in the presence of others and of the testatrix."
If we should omit the words "of others and," the expression would be reduced to "each of us
signed these presents in the presence of the testatrix," and the statement that the witnesses signed
each in the presence of the others would be lacking. But as a matter of fact, these words "of
others and" are present. Then, what for are they there? Is it to say that the witnesses signed in the
presence of other persons foreign to the execution of the will, which is completely useless and to
no purpose in the case, or was it for some useful, rational, necessary object, such as that of
making it appear that the witnesses signed the will each in the presence of the others? The first
theory presupposes that the one who drew the will, who is Attorney Francisco, was an
unreasonable man, which is an inadmissible hypothesis, being repugnant to the facts shown by

the record. The second theory is the most obvious, logical and reasonable under the
circumstances. It is true that the expression proved to be deficient. The deficiency may have been
caused by the drawer of the will or by the typist. If by the typist, then it must be presumed to
have been merely accidental. If by the drawer, it is explainable taking into account that Spanish
is not only not the native language of the Filipinos, who, in general, still speak until nowadays
their own dialects, but also that such language is not even the only official language since several
years ago.
In Re will of Abangan (40 Phil., 476), this court said:
The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to guarantee
their truth and authenticity. Therefore the laws on this subject should be interpreted in
such a way as to attain these primordial ends. 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 requisite
entirely unnecesary, useless and frustrative of the testator's last will, must be disregarded.
We believe it to be more reasonable to construe the disputed phrase "of others" as meaning "of
the other witnesses," and that a grammatical or clerical error was committed consisting in the
omission of the article "the".
Grammatical or clerical errors are not usually considered of vital importance when the intention
is manifest in the will.
The court may correct clerical mistakes in writing, and disregard technical rules of
grammar as to the construction of the language of the will when it becomes necessary for
it to do so in order to effectuate the testators manifest intention as ascertained from the
context of the will. But unless a different construction is so required the ordinary rules of
grammar should be adhered to in construing the will. (40 Cyc., 1404).
And we understand that in the present case the interpretation we adopt is imperative, being the
most adequate and reasonable.
The case of In the matter of the estate of Geronima Uy Coque (43 Phil., 405), decided by this
court and invoked by the appellants, refers so far as pertinent to the point herein at issue, to an
attestation clause wherein the statement that the witnesses signed the will in the presence of each
other is totally absent. In the case at bar, there is the expression "in the presence of others" whose
reasonable interpretation is, as we have said, "in the presence of the other witnesses." We do not

find any party between the present case and that of Re Estate of Geronima Uy Coque above
cited.
Finally, we will take up the question submitted by the opponents as to the alleged insufficiency
of the evidence to show that the attesting witnesses Damian Crisostomo and Sotero Dumaual
were present at the execution of the will in controversy. Although this point is raised in the first
assignment of error made by the appellants, and not in the second, it is discussed in this place
because it refers to the very fact of attestation. However, we do not believe it necessary to
analyze in detail the evidence of both parties on this particular point. The evidence leads us to the
conclusion that the two witnesses aforementioned were present at the execution and signing of
the will. Such is also the conclusion of the trial judge who, in this respect, states the following, in
his decision:
As to the question of whether or not the testatrix and witnesses signed the document Exhibit A in
accordance with the provisions of law on the matter, that is, whether or not the testatrix signed
the will, or caused it to be signed, in the presence of the witnesses, and the latter in turn signed in
her presence and that of each other, the court, after observing the demeanor of the witnesses for
both parties, is of the opinion that those for the petitioner spoke the truth. It is neither probable
nor likely that a man versed in the law, such as Attorney Francisco, who was present at the
execution of the will in question, and to whose conscientiousness in the matter of compliance
with all the extrinsic formalities of the execution of a will, and to nothing else, was due the fact
that the testatrix had cancelled her former will (Exhibit B) and had new one (Exhibit A) prepared
and executed, should have consented the omission of formality compliance with which would
have required little or no effort; namely, that of seeing to it that the testatrix and the attesting
witnesses were all present when their respective signatures were affixed to the will." And the
record does not furnish us sufficient ground for deviating from the line reasoning and findings of
the trial judge.
In conclusion we hold that the assignments of error made by the appellants are not supported by
the evidence of record.
The judgment appealed from if affirmed with costs against the appellants. So ordered.

6. Acain v. IAC
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 72706 October 27, 1987
CONSTANTINO C. ACAIN, petitioner,
vs.
HON. INTERMEDIATE APPELLATE COURT (Third Special Cases Division),
VIRGINIA A. FERNANDEZ and ROSA DIONGSON, respondents.

PARAS, J.:
This is a petition for review on certiorari of the decision * of respondent. Court of Appeals in
AC-G.R. SP No. 05744 promulgated on August 30, 1985 (Rollo, p. 108) ordering the dismissal
of the petition in Special Proceedings No, 591 ACEB and its Resolution issued on October 23,
1985 (Rollo, p. 72) denying respondents' (petitioners herein) motion for reconsideration.
The dispositive portion of the questioned decision reads as follows:
WHEREFORE, the petition is hereby granted and respondent Regional Trial
Court of the Seventh Judicial Region, Branch XIII (Cebu City), is hereby ordered
to dismiss the petition in Special Proceedings No. 591 ACEB No special
pronouncement is made as to costs.
The antecedents of the case, based on the summary of the Intermediate Appellate Court, now
Court of Appeals, (Rollo, pp. 108-109) are as follows:
On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial Court of Cebu City
Branch XIII, a petition for the probate of the will of the late Nemesio Acain and for the issuance
to the same petitioner of letters testamentary, docketed as Special Proceedings No. 591 ACEB
(Rollo, p. 29), on the premise that Nemesio Acain died leaving a will in which petitioner and his
brothers Antonio, Flores and Jose and his sisters Anita, Concepcion, Quirina and Laura were
instituted as heirs. The will allegedly executed by Nemesio Acain on February 17, 1960 was
written in Bisaya (Rollo, p. 27) with a translation in English (Rollo, p. 31) submi'tted by
petitioner without objection raised by private respondents. The will contained provisions on

burial rites, payment of debts, and the appointment of a certain Atty. Ignacio G. Villagonzalo as
the executor of the testament. On the disposition of the testator's property, the will provided:
THIRD: All my shares that I may receive from our properties. house, lands and
money which I earned jointly with my wife Rosa Diongson shall all be given by
me to my brother SEGUNDO ACAIN Filipino, widower, of legal age and
presently residing at 357-C Sanciangko Street, Cebu City. In case my brother
Segundo Acain pre-deceased me, all the money properties, lands, houses there in
Bantayan and here in Cebu City which constitute my share shall be given to me to
his children, namely: Anita, Constantino, Concepcion, Quirina, laura, Flores,
Antonio and Jose, all surnamed Acain.
Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo who are claiming
to be heirs, with Constantino as the petitioner in Special Proceedings No. 591 ACEB
After the petition was set for hearing in the lower court on June 25, 1984 the oppositors
(respondents herein Virginia A. Fernandez, a legally adopted daughter of tile deceased and the
latter's widow Rosa Diongson Vda. de Acain filed a motion to dismiss on the following grounds
for the petitioner has no legal capacity to institute these proceedings; (2) he is merely a universal
heir and (3) the widow and the adopted daughter have been pretirited. (Rollo, p. 158). Said
motion was denied by the trial judge.
After the denial of their subsequent motion for reconsideration in the lower court, respondents
filed with the Supreme Court a petition for certiorari and prohibition with preliminary injunction
which was subsequently referred to the Intermediate Appellate Court by Resolution of the Court
dated March 11, 1985 (Memorandum for Petitioner, p. 3; Rollo, p. 159).
Respondent Intermediate Appellate Court granted private respondents' petition and ordered the
trial court to dismiss the petition for the probate of the will of Nemesio Acain in Special
Proceedings No. 591 ACEB
His motion for reconsideration having been denied, petitioner filed this present petition for the
review of respondent Court's decision on December 18, 1985 (Rollo, p. 6). Respondents'
Comment was filed on June 6, 1986 (Rollo, p. 146).
On August 11, 1986 the Court resolved to give due course to the petition (Rollo, p. 153).
Respondents' Memorandum was filed on September 22, 1986 (Rollo, p. 157); the Memorandum
for petitioner was filed on September 29, 1986 (Rollo, p. 177).
Petitioner raises the following issues (Memorandum for petitioner, p. 4):

(A) The petition filed in AC-G.R. No. 05744 for certiorari and prohibition with
preliminary injunction is not the proper remedy under the premises;
(B) The authority of the probate courts is limited only to inquiring into the
extrinsic validity of the will sought to be probated and it cannot pass upon the
intrinsic validity thereof before it is admitted to probate;
(C) The will of Nemesio Acain is valid and must therefore, be admitted to
probate. The preterition mentioned in Article 854 of the New Civil Code refers to
preterition of "compulsory heirs in the direct line," and does not apply to private
respondents who are not compulsory heirs in the direct line; their omission shall
not annul the institution of heirs;
(D) DICAT TESTATOR ET MERIT LEX. What the testator says will be the law;
(E) There may be nothing in Article 854 of the New Civil Code, that suggests that
mere institution of a universal heir in the will would give the heir so instituted a
share in the inheritance but there is a definite distinct intention of the testator in
the case at bar, explicitly expressed in his will. This is what matters and should be
in violable.
(F) As an instituted heir, petitioner has the legal interest and standing to file the
petition in Sp. Proc. No. 591 ACEB for probate of the will of Nemesio Acain and
(G) Article 854 of the New Civil Code is a bill of attainder. It is therefore
unconstitutional and ineffectual.
The pivotal issue in this case is whether or not private respondents have been pretirited.
Article 854 of the Civil Code provides:
Art. 854. The preterition or omission of one, some, or all of the compulsory heirs
in the direct line, whether living at the time of the execution of the will or born
after the death of the testator, shall annul the institution of heir; but the devisees
and legacies shall be valid insofar as they are not; inofficious.
If the omitted compulsory heirs should die before the testator, the institution shall
he effectual, without prejudice to the right of representation.
Preterition consists in the omission in the testator's will of the forced heirs or anyone of them
either because they are not mentioned therein, or, though mentioned, they are neither instituted as
heirs nor are expressly disinherited (Nuguid v. Nuguid, 17 SCRA 450 [1966]; Maninang v. Court

of Appeals, 114 SCRA 478 [1982]). Insofar as the widow is concerned, Article 854 of the Civil
Code may not apply as she does not ascend or descend from the testator, although she is a
compulsory heir. Stated otherwise, even if the surviving spouse is a compulsory heir, there is no
preterition even if she is omitted from the inheritance, for she is not in the direct line. (Art. 854,
Civil code) however, the same thing cannot be said of the other respondent Virginia A.
Fernandez, whose legal adoption by the testator has not been questioned by petitioner
(.Memorandum for the Petitioner, pp. 8-9). Under Article 39 of P.D. No. 603, known as the Child
and Youth Welfare Code, adoption gives to the adopted person the same rights and duties as if he
were a legitimate child of the adopter and makes the adopted person a legal heir of the adopter. It
cannot be denied that she has totally omitted and preterited in the will of the testator and that
both adopted child and the widow were deprived of at least their legitime. Neither can it be
denied that they were not expressly disinherited. Hence, this is a clear case of preterition of the
legally adopted child.
Pretention annuls the institution of an heir and annulment throws open to intestate succession the
entire inheritance including "la porcion libre (que) no hubiese dispuesto en virtual de legado
mejora o donacion" Maniesa as cited in Nuguid v. Nuguid, supra; Maninang v. Court of Appeals,
114 SCRA [1982]). The only provisions which do not result in intestacy are the legacies and
devises made in the will for they should stand valid and respected, except insofar as the legitimes
are concerned.
The universal institution of petitioner together with his brothers and sisters to the entire
inheritance of the testator results in totally abrogating the will because the nullification of such
institution of universal heirs-without any other testamentary disposition in the will-amounts to a
declaration that nothing at all was written. Carefully worded and in clear terms, Article 854 of
the Civil Code offers no leeway for inferential interpretation (Nuguid v. Nuguid), supra. No
legacies nor devises having been provided in the will the whole property of the deceased has
been left by universal title to petitioner and his brothers and sisters. The effect of annulling the
"Institution of heirs will be, necessarily, the opening of a total intestacy (Neri v. Akutin, 74 Phil.
185 [1943]) except that proper legacies and devises must, as already stated above, be respected.
We now deal with another matter. In order that a person may be allowed to intervene in a probate
proceeding he must have an interest iii the estate, or in the will, or in the property to be affected
by it either as executor or as a claimant of the estate and an interested party is one who would be
benefited by the estate such as an heir or one who has a claim against the estate like a creditor
(Sumilang v. Ramagosa, 21 SCRA 1369/1967). Petitioner is not the appointed executor, neither a
devisee or a legatee there being no mention in the testamentary disposition of any gift of an
individual item of personal or real property he is called upon to receive (Article 782, Civil Code).
At the outset, he appears to have an interest in the will as an heir, defined under Article 782 of
the Civil Code as a person called to the succession either by the provision of a will or by
operation of law. However, intestacy having resulted from the preterition of respondent adopted

child and the universal institution of heirs, petitioner is in effect not an heir of the testator. He has
no legal standing to petition for the probate of the will left by the deceased and Special
Proceedings No. 591 A-CEB must be dismissed.
As a general rule certiorari cannot be a substitute for appeal, except when the questioned order is
an oppressive exercise of j judicial authority (People v. Villanueva, 110 SCRA 465 [1981]; Vda.
de Caldito v. Segundo, 117 SCRA 573 [1982]; Co Chuan Seng v. Court of Appeals, 128 SCRA
308 [1984]; and Bautista v. Sarmiento, 138 SCRA 587 [1985]). It is axiomatic that the remedies
of certiorari and prohibition are not available where the petitioner has the remedy of appeal or
some other plain, speedy and adequate remedy in the course of law (DD Comendador
Construction Corporation v. Sayo (118 SCRA 590 [1982]). They are, however, proper remedies
to correct a grave abuse of discretion of the trial court in not dismissing a case where the
dismissal is founded on valid grounds (Vda. de Bacang v. Court of Appeals, 125 SCRA 137
[1983]).
Special Proceedings No. 591 ACEB is for the probate of a will. As stated by respondent Court,
the general rule is that the probate court's authority is limited only to the extrinsic validity of the
will, the due execution thereof, the testator's testamentary capacity and the compliance with the
requisites or solemnities prescribed by law. The intrinsic validity of the will normally comes only
after the Court has declared that the will has been duly authenticated. Said court at this stage of
the proceedings is not called upon to rule on the intrinsic validity or efficacy of the provisions of
the will (Nuguid v. Nuguid, 17 SCRA 449 [1966]; Sumilang v. Ramagosa, supra; Maninang v.
Court of Appeals, 114 SCRA 478 [1982]; Cayetano v. Leonides, 129 SCRA 522 [1984]; and
Nepomuceno v. Court of Appeals, 139 SCRA 206 [1985]).
The rule, however, is not inflexible and absolute. Under exceptional circumstances, the probate
court is not powerless to do what the situation constrains it to do and pass upon certain
provisions of the will (Nepomuceno v. Court of Appeals, supra). In Nuguid v. Nuguid the
oppositors to the probate moved to dismiss on the ground of absolute preteriton The probate
court acting on the motion held that the will in question was a complete nullity and dismissed the
petition without costs. On appeal the Supreme Court upheld the decision of the probate court,
induced by practical considerations. The Court said:
We pause to reflect. If the case were to be remanded for probate of the will,
nothing will be gained. On the contrary, this litigation will be protracted. And for
aught that appears in the record, in the event of probate or if the court rejects the
will, probability exists that the case will come up once again before us on the
same issue of the intrinsic validity or nullity of the will. Result: waste of time,
effort, expense, plus added anxiety. These are the practical considerations that
induce us to a belief that we might as well meet head-on the issue of the validity

of the provisions of the will in question. After all there exists a justiciable
controversy crying for solution.
In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the petition by the
surviving spouse was grounded on petitioner's lack of legal capacity to institute the proceedings
which was fully substantiated by the evidence during the hearing held in connection with said
motion. The Court upheld the probate court's order of dismissal.
In Cayetano v. Leonides, supra one of the issues raised in the motion to dismiss the petition deals
with the validity of the provisions of the will. Respondent Judge allowed the probate of the will.
The Court held that as on its face the will appeared to have preterited the petitioner the
respondent judge should have denied its probate outright. Where circumstances demand that
intrinsic validity of testamentary provisions be passed upon even before the extrinsic validity of
the will is resolved, the probate court should meet the issue. (Nepomuceno v. Court of Appeals,
supra; Nuguid v. Nuguid, supra).
In the instant case private respondents filed a motion to dismiss the petition in Sp. Proceedings
No. 591 ACEB of the Regional Trial Court of Cebu on the following grounds: (1) petitioner has
no legal capacity to institute the proceedings; (2) he is merely a universal heir; and (3) the widow
and the adopted daughter have been preterited (Rollo, p. 158). It was denied by the trial court in
an order dated January 21, 1985 for the reason that "the grounds for the motion to dismiss are
matters properly to be resolved after a hearing on the issues in the course of the trial on the
merits of the case (Rollo, p. 32). A subsequent motion for reconsideration was denied by the trial
court on February 15, 1985 (Rollo, p. 109).
For private respondents to have tolerated the probate of the will and allowed the case to progress
when on its face the will appears to be intrinsically void as petitioner and his brothers and sisters
were instituted as universal heirs coupled with the obvious fact that one of the private
respondents had been preterited would have been an exercise in futility. It would have meant a
waste of time, effort, expense, plus added futility. The trial court could have denied its probate
outright or could have passed upon the intrinsic validity of the testamentary provisions before the
extrinsic validity of the will was resolved (Cayetano v. Leonides, supra; Nuquid v. Nuguid,
supra. The remedies of certiorari and prohibition were properly availed of by private
respondents.
Thus, this Court ruled that where the grounds for dismissal are indubitable, the defendants had
the right to resort to the more speedy, and adequate remedies of certiorari and prohibition to
correct a grave abuse of discretion, amounting to lack of jurisdiction, committed by the trial
court in not dismissing the case, (Vda. de Bacang v. Court of Appeals, supra) and even assuming
the existence of the remedy of appeal, the Court harkens to the rule that in the broader interests

of justice, a petition for certiorari may be entertained, particularly where appeal would not afford
speedy and adequate relief. (Maninang Court of Appeals, supra).
PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and the questioned
decision of respondent Court of Appeals promulgated on August 30, 1985 and its Resolution
dated October 23, 1985 are hereby AFFIRMED.
SO ORDERED.

7. Rabadilla v. CA
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 113725

June 29, 2000

JOHNNY S. RABADILLA,1 petitioner,

vs.
COURT OF APPEALS AND MARIA MARLENA2 COSCOLUELLA Y BELLEZA
VILLACARLOS, respondents.
DECISION
PURISIMA, J.:
This is a petition for review of the decision of the Court of Appeals,3 dated December 23, 1993,
in CA-G.R. No. CV-35555, which set aside the decision of Branch 52 of the Regional Trial Court
in Bacolod City, and ordered the defendants-appellees (including herein petitioner), as heirs of
Dr. Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its fruits and interests, to
the estate of Aleja Belleza.
The antecedent facts are as follows:
In a Codicil appended to the Last Will and Testament of testatrix Aleja Belleza, Dr. Jorge
Rabadilla, predecessor-in-interest of the herein petitioner, Johnny S. Rabadilla, was instituted as
a devisee of 511, 855 square meters of that parcel of land surveyed as Lot No. 1392 of the
Bacolod Cadastre. The said Codicil, which was duly probated and admitted in Special
Proceedings No. 4046 before the then Court of First Instance of Negros Occidental, contained
the following provisions:
"FIRST
I give, leave and bequeath the following property owned by me to Dr. Jorge Rabadilla resident of
141 P. Villanueva, Pasay City:
(a) Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No.
RT-4002 (10942), which is registered in my name according to the records of the Register
of Deeds of Negros Occidental.

(b) That should Jorge Rabadilla die ahead of me, the aforementioned property and the
rights which I shall set forth hereinbelow, shall be inherited and acknowledged by the
children and spouse of Jorge Rabadilla.
xxx
FOURTH
(a)....It is also my command, in this my addition (Codicil), that should I die and Jorge Rabadilla
shall have already received the ownership of the said Lot No. 1392 of the Bacolod Cadastre,
covered by Transfer Certificate of Title No. RT-4002 (10942), and also at the time that the lease
of Balbinito G. Guanzon of the said lot shall expire, Jorge Rabadilla shall have the obligation
until he dies, every year to give to Maria Marlina Coscolluela y Belleza, Seventy (75) (sic) piculs
of Export sugar and Twenty Five (25) piculs of Domestic sugar, until the said Maria Marlina
Coscolluela y Belleza dies.
FIFTH
(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392 of the Bacolod
Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10492), shall have the obligation
to still give yearly, the sugar as specified in the Fourth paragraph of his testament, to Maria
Marlina Coscolluela y Belleza on the month of December of each year.
SIXTH
I command, in this my addition (Codicil) that the Lot No. 1392, in the event that the one to
whom I have left and bequeathed, and his heir shall later sell, lease, mortgage this said Lot, the
buyer, lessee, mortgagee, shall have also the obligation to respect and deliver yearly ONE
HUNDRED (100) piculs of sugar to Maria Marlina Coscolluela y Belleza, on each month of
December, SEVENTY FIVE (75) piculs of Export and TWENTY FIVE (25) piculs of Domestic,
until Maria Marlina shall die, lastly should the buyer, lessee or the mortgagee of this lot, not have
respected my command in this my addition (Codicil), Maria Marlina Coscolluela y Belleza, shall
immediately seize this Lot No. 1392 from my heir and the latter's heirs, and shall turn it over to
my near desendants, (sic) and the latter shall then have the obligation to give the ONE
HUNDRED (100) piculs of sugar until Maria Marlina shall die. I further command in this my
addition (Codicil) that my heir and his heirs of this Lot No. 1392, that they will obey and follow
that should they decide to sell, lease, mortgage, they cannot negotiate with others than my near
descendants and my sister."4
Pursuant to the same Codicil, Lot No. 1392 was transferred to the deceased, Dr. Jorge Rabadilla,
and Transfer Certificate of Title No. 44498 thereto issued in his name.

Dr. Jorge Rabadilla died in 1983 and was survived by his wife Rufina and children Johnny
(petitioner), Aurora, Ofelia and Zenaida, all surnamed Rabadilla.
On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos brought a complaint,
docketed as Civil Case No. 5588, before Branch 52 of the Regional Trial Court in Bacolod City,
against the above-mentioned heirs of Dr. Jorge Rabadilla, to enforce the provisions of subject
Codicil. The Complaint alleged that the defendant-heirs violated the conditions of the Codicil, in
that:
1. Lot No. 1392 was mortgaged to the Philippine National Bank and the Republic
Planters Bank in disregard of the testatrix's specific instruction to sell, lease, or mortgage
only to the near descendants and sister of the testatrix.
2. Defendant-heirs failed to comply with their obligation to deliver one hundred (100)
piculs of sugar (75 piculs export sugar and 25 piculs domestic sugar) to plaintiff Maria
Marlena Coscolluela y Belleza from sugar crop years 1985 up to the filing of the
complaint as mandated by the Codicil, despite repeated demands for compliance.
3. The banks failed to comply with the 6th paragraph of the Codicil which provided that
in case of the sale, lease, or mortgage of the property, the buyer, lessee, or mortgagee
shall likewise have the obligation to deliver 100 piculs of sugar per crop year to herein
private respondent.
The plaintiff then prayed that judgment be rendered ordering defendant-heirs to reconvey/returnLot No. 1392 to the surviving heirs of the late Aleja Belleza, the cancellation of TCT No. 44498
in the name of the deceased, Dr. Jorge Rabadilla, and the issuance of a new certificate of title in
the names of the surviving heirs of the late Aleja Belleza.
On February 26, 1990, the defendant-heirs were declared in default but on March 28, 1990 the
Order of Default was lifted, with respect to defendant Johnny S. Rabadilla, who filed his Answer,
accordingly.
During the pre-trial, the parties admitted that:
On November 15, 1998, the plaintiff (private respondent) and a certain Alan Azurin, son-in-law
of the herein petitioner who was lessee of the property and acting as attorney-in-fact of
defendant-heirs, arrived at an amicable settlement and entered into a Memorandum of Agreement
on the obligation to deliver one hundred piculs of sugar, to the following effect:
"That for crop year 1988-89, the annuity mentioned in Entry No. 49074 of TCT No. 44489 will
be delivered not later than January of 1989, more specifically, to wit:

75 piculs of 'A' sugar, and 25 piculs of 'B' sugar, or then existing in any of our names, Mary Rose
Rabadilla y Azurin or Alan Azurin, during December of each sugar crop year, in Azucar Sugar
Central; and, this is considered compliance of the annuity as mentioned, and in the same manner
will compliance of the annuity be in the next succeeding crop years.
That the annuity above stated for crop year 1985-86, 1986-87, and 1987-88, will be complied in
cash equivalent of the number of piculs as mentioned therein and which is as herein agreed upon,
taking into consideration the composite price of sugar during each sugar crop year, which is in
the total amount of ONE HUNDRED FIVE THOUSAND PESOS (P105,000.00).
That the above-mentioned amount will be paid or delivered on a staggered cash installment,
payable on or before the end of December of every sugar crop year, to wit:
For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos,
payable on or before December of crop year 1988-89;
For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos,
payable on or before December of crop year 1989-90;
For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos,
payable on or before December of crop year 1990-91; and
For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos,
payable on or before December of crop year 1991-92."5
However, there was no compliance with the aforesaid Memorandum of Agreement except for a
partial delivery of 50.80 piculs of sugar corresponding to sugar crop year 1988 -1989.
On July 22, 1991, the Regional Trial Court came out with a decision, dismissing the complaint
and disposing as follows:
"WHEREFORE, in the light of the aforegoing findings, the Court finds that the action is
prematurely filed as no cause of action against the defendants has as yet arose in favor of
plaintiff. While there maybe the non-performance of the command as mandated exaction from
them simply because they are the children of Jorge Rabadilla, the title holder/owner of the lot in
question, does not warrant the filing of the present complaint. The remedy at bar must fall.
Incidentally, being in the category as creditor of the left estate, it is opined that plaintiff may
initiate the intestate proceedings, if only to establish the heirs of Jorge Rabadilla and in order to
give full meaning and semblance to her claim under the Codicil.
In the light of the aforegoing findings, the Complaint being prematurely filed is DISMISSED
without prejudice.

SO ORDERED."6
On appeal by plaintiff, the First Division of the Court of Appeals reversed the decision of the
trial court; ratiocinating and ordering thus:
"Therefore, the evidence on record having established plaintiff-appellant's right to receive 100
piculs of sugar annually out of the produce of Lot No. 1392; defendants-appellee's obligation
under Aleja Belleza's codicil, as heirs of the modal heir, Jorge Rabadilla, to deliver such amount
of sugar to plaintiff-appellant; defendants-appellee's admitted non-compliance with said
obligation since 1985; and, the punitive consequences enjoined by both the codicil and the Civil
Code, of seizure of Lot No. 1392 and its reversion to the estate of Aleja Belleza in case of such
non-compliance, this Court deems it proper to order the reconveyance of title over Lot No. 1392
from the estates of Jorge Rabadilla to the estate of Aleja Belleza. However, plaintiff-appellant
must institute separate proceedings to re-open Aleja Belleza's estate, secure the appointment of
an administrator, and distribute Lot No. 1392 to Aleja Belleza's legal heirs in order to enforce her
right, reserved to her by the codicil, to receive her legacy of 100 piculs of sugar per year out of
the produce of Lot No. 1392 until she dies.
Accordingly, the decision appealed from is SET ASIDE and another one entered ordering
defendants-appellees, as heirs of Jorge Rabadilla, to reconvey title over Lot No. 1392, together
with its fruits and interests, to the estate of Aleja Belleza.
SO ORDERED."7
Dissatisfied with the aforesaid disposition by the Court of Appeals, petitioner found his way to
this Court via the present petition, contending that the Court of Appeals erred in ordering the
reversion of Lot 1392 to the estate of the testatrix Aleja Belleza on the basis of paragraph 6 of the
Codicil, and in ruling that the testamentary institution of Dr. Jorge Rabadilla is a modal
institution within the purview of Article 882 of the New Civil Code.
The petition is not impressed with merit.
Petitioner contends that the Court of Appeals erred in resolving the appeal in accordance with
Article 882 of the New Civil Code on modal institutions and in deviating from the sole issue
raised which is the absence or prematurity of the cause of action. Petitioner maintains that Article
882 does not find application as there was no modal institution and the testatrix intended a mere
simple substitution - i.e. the instituted heir, Dr. Jorge Rabadilla, was to be substituted by the
testatrix's "near descendants" should the obligation to deliver the fruits to herein private
respondent be not complied with. And since the testatrix died single and without issue, there can
be no valid substitution and such testamentary provision cannot be given any effect.

The petitioner theorizes further that there can be no valid substitution for the reason that the
substituted heirs are not definite, as the substituted heirs are merely referred to as "near
descendants" without a definite identity or reference as to who are the "near descendants" and
therefore, under Articles 8438 and 8459 of the New Civil Code, the substitution should be deemed
as not written.
The contentions of petitioner are untenable. Contrary to his supposition that the Court of Appeals
deviated from the issue posed before it, which was the propriety of the dismissal of the complaint
on the ground of prematurity of cause of action, there was no such deviation. The Court of
Appeals found that the private respondent had a cause of action against the petitioner. The
disquisition made on modal institution was, precisely, to stress that the private respondent had a
legally demandable right against the petitioner pursuant to subject Codicil; on which issue the
Court of Appeals ruled in accordance with law.
It is a general rule under the law on succession that successional rights are transmitted from the
moment of death of the decedent10 and compulsory heirs are called to succeed by operation of
law. The legitimate children and descendants, in relation to their legitimate parents, and the
widow or widower, are compulsory heirs.11 Thus, the petitioner, his mother and sisters, as
compulsory heirs of the instituted heir, Dr. Jorge Rabadilla, succeeded the latter by operation of
law, without need of further proceedings, and the successional rights were transmitted to them
from the moment of death of the decedent, Dr. Jorge Rabadilla.
Under Article 776 of the New Civil Code, inheritance includes all the property, rights and
obligations of a person, not extinguished by his death. Conformably, whatever rights Dr. Jorge
Rabadilla had by virtue of subject Codicil were transmitted to his forced heirs, at the time of his
death. And since obligations not extinguished by death also form part of the estate of the
decedent; corollarily, the obligations imposed by the Codicil on the deceased Dr. Jorge Rabadilla,
were likewise transmitted to his compulsory heirs upon his death.
In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge Rabadilla, subject to
the condition that the usufruct thereof would be delivered to the herein private respondent every
year. Upon the death of Dr. Jorge Rabadilla, his compulsory heirs succeeded to his rights and title
over the said property, and they also assumed his (decedent's) obligation to deliver the fruits of
the lot involved to herein private respondent. Such obligation of the instituted heir reciprocally
corresponds to the right of private respondent over the usufruct, the fulfillment or performance of
which is now being demanded by the latter through the institution of the case at bar. Therefore,
private respondent has a cause of action against petitioner and the trial court erred in dismissing
the complaint below.
Petitioner also theorizes that Article 882 of the New Civil Code on modal institutions is not
applicable because what the testatrix intended was a substitution - Dr. Jorge Rabadilla was to be

substituted by the testatrix's near descendants should there be noncompliance with the obligation
to deliver the piculs of sugar to private respondent.
Again, the contention is without merit.
Substitution is the designation by the testator of a person or persons to take the place of the heir
or heirs first instituted. Under substitutions in general, the testator may either (1) provide for the
designation of another heir to whom the property shall pass in case the original heir should die
before him/her, renounce the inheritance or be incapacitated to inherit, as in a simple
substitution,12 or (2) leave his/her property to one person with the express charge that it be
transmitted subsequently to another or others, as in a fideicommissary substitution.13 The Codicil
sued upon contemplates neither of the two.
In simple substitutions, the second heir takes the inheritance in default of the first heir by reason
of incapacity, predecease or renunciation.14 In the case under consideration, the provisions of
subject Codicil do not provide that should Dr. Jorge Rabadilla default due to predecease,
incapacity or renunciation, the testatrix's near descendants would substitute him. What the
Codicil provides is that, should Dr. Jorge Rabadilla or his heirs not fulfill the conditions imposed
in the Codicil, the property referred to shall be seized and turned over to the testatrix's near
descendants.
Neither is there a fideicommissary substitution here and on this point, petitioner is correct. In a
fideicommissary substitution, the first heir is strictly mandated to preserve the property and to
transmit the same later to the second heir.15 In the case under consideration, the instituted heir is
in fact allowed under the Codicil to alienate the property provided the negotiation is with the
near descendants or the sister of the testatrix. Thus, a very important element of a
fideicommissary substitution is lacking; the obligation clearly imposing upon the first heir the
preservation of the property and its transmission to the second heir. "Without this obligation to
preserve clearly imposed by the testator in his will, there is no fideicommissary substitution."16
Also, the near descendants' right to inherit from the testatrix is not definite. The property will
only pass to them should Dr. Jorge Rabadilla or his heirs not fulfill the obligation to deliver part
of the usufruct to private respondent.
Another important element of a fideicommissary substitution is also missing here. Under Article
863, the second heir or the fideicommissary to whom the property is transmitted must not be
beyond one degree from the first heir or the fiduciary. A fideicommissary substitution is
therefore, void if the first heir is not related by first degree to the second heir.17 In the case under
scrutiny, the near descendants are not at all related to the instituted heir, Dr. Jorge Rabadilla.

The Court of Appeals erred not in ruling that the institution of Dr. Jorge Rabadilla under subject
Codicil is in the nature of a modal institution and therefore, Article 882 of the New Civil Code is
the provision of law in point. Articles 882 and 883 of the New Civil Code provide:
Art. 882. The statement of the object of the institution or the application of the property left by
the testator, or the charge imposed on him, shall not be considered as a condition unless it
appears that such was his intention.
That which has been left in this manner may be claimed at once provided that the instituted heir
or his heirs give security for compliance with the wishes of the testator and for the return of
anything he or they may receive, together with its fruits and interests, if he or they should
disregard this obligation.
Art. 883. When without the fault of the heir, an institution referred to in the preceding article
cannot take effect in the exact manner stated by the testator, it shall be complied with in a
manner most analogous to and in conformity with his wishes.
The institution of an heir in the manner prescribed in Article 882 is what is known in the law of
succession as an institucion sub modo or a modal institution. In a modal institution, the testator
states (1) the object of the institution, (2) the purpose or application of the property left by the
testator, or (3) the charge imposed by the testator upon the heir.18 A "mode" imposes an
obligation upon the heir or legatee but it does not affect the efficacy of his rights to the
succession.19 On the other hand, in a conditional testamentary disposition, the condition must
happen or be fulfilled in order for the heir to be entitled to succeed the testator. The condition
suspends but does not obligate; and the mode obligates but does not suspend.20 To some extent, it
is similar to a resolutory condition.21
From the provisions of the Codicil litigated upon, it can be gleaned unerringly that the testatrix
intended that subject property be inherited by Dr. Jorge Rabadilla. It is likewise clearly worded
that the testatrix imposed an obligation on the said instituted heir and his successors-in-interest to
deliver one hundred piculs of sugar to the herein private respondent, Marlena Coscolluela
Belleza, during the lifetime of the latter. However, the testatrix did not make Dr. Jorge
Rabadilla's inheritance and the effectivity of his institution as a devisee, dependent on the
performance of the said obligation. It is clear, though, that should the obligation be not complied
with, the property shall be turned over to the testatrix's near descendants. The manner of
institution of Dr. Jorge Rabadilla under subject Codicil is evidently modal in nature because it
imposes a charge upon the instituted heir without, however, affecting the efficacy of such
institution.
Then too, since testamentary dispositions are generally acts of liberality, an obligation imposed
upon the heir should not be considered a condition unless it clearly appears from the Will itself

that such was the intention of the testator. In case of doubt, the institution should be considered
as modal and not conditional.22
Neither is there tenability in the other contention of petitioner that the private respondent has
only a right of usufruct but not the right to seize the property itself from the instituted heir
because the right to seize was expressly limited to violations by the buyer, lessee or mortgagee.
In the interpretation of Wills, when an uncertainty arises on the face of the Will, as to the
application of any of its provisions, the testator's intention is to be ascertained from the words of
the Will, taking into consideration the circumstances under which it was made.23 Such
construction as will sustain and uphold the Will in all its parts must be adopted.24
Subject Codicil provides that the instituted heir is under obligation to deliver One Hundred (100)
piculs of sugar yearly to Marlena Belleza Coscuella. Such obligation is imposed on the instituted
heir, Dr. Jorge Rabadilla, his heirs, and their buyer, lessee, or mortgagee should they sell, lease,
mortgage or otherwise negotiate the property involved. The Codicil further provides that in the
event that the obligation to deliver the sugar is not respected, Marlena Belleza Coscuella shall
seize the property and turn it over to the testatrix's near descendants. The non-performance of the
said obligation is thus with the sanction of seizure of the property and reversion thereof to the
testatrix's near descendants. Since the said obligation is clearly imposed by the testatrix, not only
on the instituted heir but also on his successors-in-interest, the sanction imposed by the testatrix
in case of non-fulfillment of said obligation should equally apply to the instituted heir and his
successors-in-interest.
Similarly unsustainable is petitioner's submission that by virtue of the amicable settlement, the
said obligation imposed by the Codicil has been assumed by the lessee, and whatever obligation
petitioner had become the obligation of the lessee; that petitioner is deemed to have made a
substantial and constructive compliance of his obligation through the consummated settlement
between the lessee and the private respondent, and having consummated a settlement with the
petitioner, the recourse of the private respondent is the fulfillment of the obligation under the
amicable settlement and not the seizure of subject property.
Suffice it to state that a Will is a personal, solemn, revocable and free act by which a person
disposes of his property, to take effect after his death.25 Since the Will expresses the manner in
which a person intends how his properties be disposed, the wishes and desires of the testator
must be strictly followed. Thus, a Will cannot be the subject of a compromise agreement which
would thereby defeat the very purpose of making a Will.
WHEREFORE, the petition is hereby DISMISSED and the decision of the Court of Appeals,
dated December 23, 1993, in CA-G.R. No. CV-35555 AFFIRMED. No pronouncement as to
costs

SO ORDERED.

8. Perez v. Garchitorena
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-31703

February 13, 1930

CARMEN G. DE PEREZ, trustee of the estate of Ana Maria Alcantara, plaintiff-appellee,

vs.
MARIANO GARCHITORENA, and JOSE CASIMIRO, Sheriff of the Court of First
Instance of Manila, defendants-appellants.
L. D. Lockwood and Jose M. Casal for appellants.
Eduardo Gutierrez Repide and Leoncio B. Monzon for appellee.
ROMUALDEZ, J.:
The amount of P21,428.58 is on deposit in the plaintiff's name with the association known as La
Urbana in Manila, as the final payment of the liquidated credit of Ana Maria Alcantara,
deceased, whose heiress is said plaintiff, against Andres Garchitorena, also deceased, represented
by his son, the defendant Mariano Garchitorena.
And as said Mariano Garchitorena held a judgment for P7,872.23 against Joaquin Perez
Alcantara, husband of the plaintiff, Carmen G. de Perez, the sheriff pursuant to the writ of
execution issued in said judgment, levied an attachment on said amount deposited with La
Urbana.
The plaintiff, alleging that said deposit belongs to the fideicommissary heirs of the decedent Ana
Maria Alcantara, secured a preliminary injunction restraining the execution of said judgment on
the sum so attached. The defendants contend that the plaintiff is the decedent's universal heiress,
and pray for the dissolution of the injunction.
The court below held that said La Urbana deposit belongs to the plaintiff's children as
fideicommissary heirs of Ana Maria Alcantara, and granted a final writ of injunction.
The defendants insist in their contentions, and, in their appeal from the decision of the trial court,
assign the following errors:

1. The lower court erred in holding that a trust was created by the will of Doa Ana Maria
Alcantara.
2. The lower court erred in concluding and declaring that the amount of P21,428.58
deposited with La Urbana is the property of the children of the plaintiff as "herederos
fidei-comisarios."
3. The lower court erred in making the injunction permanent and condemning defendant
to pay the costs.
The question here raised is confined to the scope and meaning of the institution of heirs made in
the will of the late Ana Maria Alcantara already admitted to probate, and whose legal force and
effect is not in dispute.
The clauses of said will relevant to the points in dispute, between the parties are the ninth, tenth,
and eleventh, quoted below:
Ninth. Being single and without any forced heir, to show my gratitude to my niece-inlaw, Carmen Garchitorena, of age, married to my nephew, Joaquin Perez Alcantara, and
living in this same house with me, I institute her as my sole and universal heiress to the
remainder of my estate after the payment of my debts and legacies, so that upon my death
and after probate of this will, and after the report of the committee on claims and
appraisal has been rendered and approved, she will receive from my executrix and
properties composing my hereditary estate, that she may enjoy them with God's blessing
and my own.
Tenth. Should my heiress Carmen Garchitorena die, I order that my whole estate shall
pass unimpaired to her surviving children; and should any of these die, his share shall
serve to increase the portions of his surviving brothers (and sisters) by accretion, in such
wise that my estate shall never pass out of the hands of my heiress or her children in so
far as it is legally possible.
Eleventh. Should my aforesaid heiress, Carmen Garchitorena, die after me while her
children are still in their minority, I order that my estate be administered by my executrix,
Mrs. Josefa Laplana, and in her default, by Attorney Ramon Salinas and in his default, by
his son Ramon Salinas; but the direction herein given must not be considered as an
indication of lack of confidence in my nephew Joaquin Perez Alcantara, whom I relieve
from the duties of administering my estate, because I recognize that his character is not
adapted to management and administration.

The appellants contend that in these clauses the testatrix has ordered a simple substitution, while
the appellee contends that it is a fideicommissary substitution.
This will certainly provides for a substitution of heirs, and of the three cases that might give rise
to a simple substitution (art. 774, Civil Code), only the death of the instituted heiress before the
testatrix would in the instant case give place to such substitution, inasmuch as nothing is said of
the waiver of inheritance, or incapacity to accept it. As a matter of fact, however, clause XI
provides for the administration of the estate in case the heiress instituted should die after the
testatrix and while the substitute heirs are still under age. And it is evident that, considering the
nature of simple substitution by the heir's death before the testator, and the fact that by clause XI
in connection with clause X, the substitution is ordered where the heiress instituted dies after the
testatrix, this cannot be a case of simple substitution.
The existence of a substitution in the will is not and cannot be denied, and since it cannot be a
simple substitution in the light of the considerations above stated, let us now see whether the
instants case is a fideicommissary substitution.
In clause IX, the testatrix institutes the plaintiff herein her sole and universal heiress, and
provides that upon her death (the testatrix's) and after probate of the will and approval of the
report of the committee on claims and appraisal, said heiress shall receive and enjoy the whole
hereditary estate. Although this clause provides nothing explicit about substitution, it does not
contain anything in conflict with the idea of fideicommissary substitution. The fact that the
plaintiff was instituted the sole and universal heiress does not prevent her children from
receiving, upon her death and in conformity with the express desire of the testatrix, the latter's
hereditary estate, as provided in the following (above quoted) clauses which cannot be
disregarded if we are to give a correct interpretation of the will. The word sole does not
necessarily exclude the idea of substitute heirs; and taking these three clauses together, such
word means that the plaintiff is the sole heiress instituted in the first instance.
The disposition contained in clause IX, that said heiress shall receive and enjoy the estate, is not
incompatible with a fideicommissary substitution (it certainly is incompatible with the idea of
simple substitution, where the heiress instituted does not receive the inheritance). In fact the
enjoyment of the inheritance is in conformity with the idea of fideicommissary substitution, by
virtue of which the heir instituted receives the inheritance and enjoys it, although at the same
time he preserves it in order to pass it on the second heir. On this point the illustrious Manresa, in
his Civil Code (Vol. 6, pp. 142 and 143, 5th ed.), says:
Or, what amounts to the same thing, the fideicommissary substitution, as held in the
Resolution of June 25, 1895, February 10, 1899, and July 19, 1909, requires three things:
1. A first heir called primarily to the enjoyment of the estate.

2. An obligation clearly imposed upon him to preserve and transmit to a third person the
whole or a part of the estate.
3. A second heir.
To these requisites, the decision of November 18, 1918 adds another, namely that the
fideicommissarius be entitled to the estate from the time the testator dies, since he is to
inherit from the latter and not from the fiduciary. (Emphasis ours.)
It appears from this quotation that the heir instituted or the fiduciary, as referred to in articles 783
of the Civil Code, is entitled to enjoy the inheritance. And it might here be observed, as a timely
remark, that the fideicommissum arising from a fideicommissary substitution, which is of Roman
origin, is not exactly equivalent to, nor may it be confused with, the English "trust."
It should also be noted that said clause IX vests in the heiress only the right to enjoy but not the
right to dispose of the estate. It says, she may enjoy it, but does not say she may dispose of it.
This is an indication of the usufruct inherent in fideicommissary substitution.
Clause X expressly provides for the substitution. It is true that it does not say whether the death
of the heiress herein referred to is before or after that of the testatrix; but from the whole context
it appears that in making the provisions contained in this clause X, the testatrix had in mind a
fideicommissary substitution, since she limits the transmission of her estate to the children of the
heiress by this provision, "in such wise that my estate shall never pass out of the hands of my
heiress or her children in so far as it is legally possible." Here it clearly appears that the testatrix
tried to avoid the possibility that the substitution might later be legally declared null for
transcending the limits fixed by article 781 of the Civil Code which prescribed that
fideicommissary substitutions shall be valid "provided they do not go beyond the second
degree."
Another clear and outstanding indication of fideicommissary substitution in clause X is the
provision that the whole estate shall pass unimpaired to the heiress's children, that is to say the
heiress is required to preserve the whole estate, without diminution, in order to pass it on in due
time to the fideicommissary heirs. This provision complies with another of the requisites of
fideicommissary substitution according to our quotation from Manresa inserted above.
Lastly, clause XI more clearly indicates the idea of fideicommissary substitution, when a
provision is therein made in the event the heiress should die after the testatrix. That is, said
clause anticipates the case where the instituted heiress should die after the testatrix and after
receiving and enjoying the inheritance.

The foregoing leads us to the conclusion that all the requisites of a fideicommissary substitution,
according to the quotation from Manresa above inserted, are present in the case of substitution
now under consideration, to wit:
1. At first heir primarily called to the enjoyment of the estate. In this case the plaintiff was
instituted an heiress, called to the enjoyment of the estate, according to clause IX of the
will.
2. An obligation clearly imposed upon the heir to preserve and transmit to a third person
the whole or a part of the estate. Such an obligation is imposed in clause X which
provides that the "whole estate shall pass unimpaired to her (heiress's) surviving
children;" thus, instead of leaving the heiress at liberty to dispose of the estate by will, or
of leaving the law to take its course in case she dies intestate, said clause not only
disposes of the estate in favor of the heiress instituted, but also provides for the
disposition thereof in case she should die after the testatrix.
3. A second heir. Such are the children of the heiress instituted, who are referred to as
such second heirs both in clause X and in clause XI.
Finally, the requisite added by the decision of November 18, 1918, to wit, that the
fideicommissarius or second heir should be entitled to the estate from the time of the testator's
death, which in the instant case, is, rather than a requisite, a necessary consequence derived from
the nature of the fideicommissary substitution, in which the second heir does not inherit from the
heir first instituted, but from the testator.
By virtue of this consequence, the inheritance in question does not belong to the heiress
instituted, the plaintiff herein, as her absolute property, but to her children, from the moment of
the death of the testatrix, Ana Maria Alcantara.
Therefore, said inheritance, of which the amount referred to at the beginning, which is on deposit
with the association known as La Urbana in the plaintiff's name, is a part, does not belong to her
nor can it be subject to the execution of the judgment against Joaquin Perez, who is not one of
the fideicommissary heirs.
The judgment appealed from is affirmed, with costs against the appellant, Mariano Garchitorena.
So ordered.