G.R. No.

L-33006 December 8, 1982

NICANOR NACAR, petitioner,
vs.
CLAUDIO A. NISTAL as Municipal Judge of Esperanza, Agusan del Sur, PROVINCIAL SHERIFF of Agusan del Sur, ILDEFONSO
JAPITANA and ANTONIO DOLORICON, respondents.
Tranquilino O. Calo, Jr. for petitioner.
Ildefonso Japitana and Antonio Boloricon for respondents.

GUTIERREZ, JR., J.:

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

1
That plaintiff is willing to put up a bond for the issuance of a preliminary attachment in an amount to be fixed by the Court, not
exceeding the sum of P 2,791.00 which is the plaintiff's claim herein;
WHEREFORE, it is respectfully prayed that pending the hearing of this case, a writ of preliminary attachment be issued against
the properties of the defendant to serve as security for the payment or satisfaction of any judgment that may be recovered
herein; and that after due hearing on the principal against the defendant for the sum of P 2,791,00 with legal interest from
September 15, 1970 plus costs of this suit. (Annex "A", p. 7 rollo).
In his motion to dismiss, the petitioner raised the issue of lack of jurisdiction and absence of a cause of action. Mr. Nacar
averred that the indebtedness mentioned in the complaint was alleged to have been incurred by the late Isabelo Nacar and not
by Nicanor Nacar. There was, therefore, no cause of action against him. The petitioner also stated that a municipal court has no
jurisdiction to entertain an action involving a claim filed against the estate of a deceased person.
The same grounds have been raised in this petition. Mr. Nacar contends:
xxx xxx xxx
9. That the respondent judge acted without jurisdiction.The municipal courts or inferior courts have NO jurisdiction to settle the
estate of deceased persons. The proper remedy is for the creditor to file the proper proceedings in the court of first instance
and file the corresponding claim. But assuming without admitting that the respondent judge had jurisdiction, it is very patent
that he committed a very grave abuse of discretion and totally disregarded the provisions of the Rules of Court and decisions of
this honorable Court when he issued an ex-parte writ of preliminary attachment, when there is no showing that the plaintiff
therein has a sufficient cause of action, that there is no other security for the claim sought to be enforced by the plaintiff; or
that the amount claimed in the action is as much as the sum for which the order is prayed for above all legal counterclaims;
There was no bond to answer for whatever damages that herein petitioner may suffer; (Rollo, pp. 3- 4).
xxx xxx xxx
The respondent judge tried to avoid the consequences of the issues raised in the motion to dismiss by stating that although the
title of the complaint styled it a claim against the estate of the late Isabelo Nacar, the allegations showed that the nature of the
action was really for the recovery of an indebtedness in the amount of P2,791.99.
The rule cited by the judge is correctly stated but it is hardly relevant to the contents of the complaint filed by Mr. Japitana.
It is patent from the portions of the complaint earlier cited that the allegations are not only vague and ambiguous but
downright misleading. The second paragraph of the body of the complaint states that the defendant (herein petitioner Nicanor
Nacar) at various dates since the year 1968 incurred debts to the plaintiff in the sum of P2,791.00. And yet, in the subsequent
paragraphs, one clearly gathers that the debts were actually incurred by the late Isabelo Nacar, who died several months before
the filing of the complaint. The complaint which the respondent judge reads as one for the collection of a sum of money and all
the paragraphs of which are incidentally unnumbered, expressly states as a material averment:
xxx xxx xxx
That plaintiff herein file (sic) a claim against the estate of the late Isabelo Nacar to recover the aforementioned sum of
P2,791.00;
xxx xxx xxx
Under the circumstances of this case, respondent Japitana has no cause of action against petitioner Nacar. Mathay v.
Consolidated Bank and Trust Company (58 SCRA 559) gives the elements of a valid cause of action:
A cause of action is an act or omission of one party in violation of the legal right of the other. Its essential elements are, namely:
(1) the existence of a legal right in the plaintiff, (2) a correlative legal duty in the defendant, and (3) an act or omission of the
defendant in violation of plaintiff's right with consequential injury or damage to the plaintiff for which he may maintain an
action for the recovery of damages or other appropriate relief. ( Ma-ao Sugar Central Co., Inc. vs. Barrios, et al., 79 Phil. 666,
667; Ramitere et al. vs. Montinola Vda. de Yulo, et al., L-19751, February 28, 1966, 16 SCRA 251, 255). On the other hand,
Section 3 of Rule 6 of the Rules of Court provides that the complaint must state the ultimate facts constituting the plaintiff's
cause of action. Hence, where the complaint states ultimate facts that constitute the three essential elements of a cause of
action, the complaint states a cause of action; (Community Investment and Finance Corp. vs. Garcia, 88 Phil. 215, 218)
otherwise, the complaint must succumb to a motion to dismiss on that ground.
Indeed, although respondent Japitana may have a legal right to recover an indebtedness due him, petitioner Nicanor Nacar has
no correlative legal duty to pay the debt for the simple reason that there is nothing in the complaint to show that he incurred
the debt or had anything to do with the creation of the liability. As far as the debt is concerned, there is no allegation or

2
showing that the petitioner had acted in violation of Mr. Japitana's rights with consequential injury or damage to the latter as
would create a cause of action against the former.
It is also patent from the complaint that respondent Japitana filed the case against petitioner Nacar to recover seven (7) heads
of carabaos allegedly belonging to Isabelo Nacar which Japitana wanted to recover from the possession of the petitioner to
answer for the outstanding debt of the late Isabelo Nacar. This matter, however, is only ancillary to the main action. The
ancillary matter does not cure a fatal defect in the complaint for the main action is for the recovery of an outstanding debt of
the late lsabelo Nacar due respondent Japitana, a cause of action about which petitioner Nacar has nothing to do.
In fact the fatal defect in the complaint was noticed by the respondent court when it advised respondent Japitana to amend his
complaint to conform with his evidence and from the court's admission that it was inclined to dismiss the case were it not for
the complaint in intervention of respondent Doloricon. Respondent Doloricon filed his complaint for intervention on the ground
that the four carabaos, subject of the writ of attachment, were actually his carabaos. Thus, the respondent court in its Order
denying the petitioner's motion to dismiss, to dissolve writ of preliminary attachment and in order the return of the carabaos
said:
... Antonio Doloricon manifested before this Court that he is filing a third-party complaint alleging that he is the true and lawful
owner of the carabaos in questions.
IN VIEW OF ALL THE FOREGOING, this Court for the interest of both parties will not for the meantime dismiss this case. Antonio
Doloricon is hereby given 10 days from receipt hereof within which to file his third-party complaint. The plaintiff who in his
opposition to defendant's motion to dismiss pray (sic) for the custody of the carabaos. This Court further requires plaintiff to
put up the additional bond of P I,000.00 after which the latter may be entitled of (sic) the custody of the carabaos subject of
litigation pending final termination of this case. (Rollo, pp. 18-19)
The respondent court's reason for not dismissing the case is contrary to applicable precedents on the matter. We ruled in
Mathay v. Consolidated Bank and Trust Company, supra:
Section I, Rule 16 of the Rules of Court, providing in part that:
Within the time for pleading a motion to dismiss may be made on any of the following grounds; ...
(g) That the complaint states no cause of action. ...
explicitly requires that the sufficiency of the complaint must be tested exclusively on the basis of the complaint itself and no
other should be considered when the ground for motion to dismiss is that the complaint states no cause of action. Pursuant
thereto this Court has ruled that:
As a rule the sufficiency of the complaint, when challenged in a motion to dismiss, must be determined exclusively on the basis
of the facts alleged therein' (Uy Chao vs. De La Rama Steamship Co., Inc., L-14495, September 29, 1962, 6 SCRA 69, 72. See also
De Jesus, et al. vs. Belarmino et al., 95 Phil. 365, 371; Dalandan, et at. vs. Julio, et al., L- 19101, February 29, 1964, 10 SCRA 400;
Ramitere et al. vs. Montinola Vda. de Yulo, et al., L-19751, February 28, 1966, 16 SCRA 250, 254; Acuna vs. Batac Producers
Cooperative Marketing Association, Inc., et al., L-20338, June 30, 1967, 20 SCRA 526, 531)
Hence, it was error for the respondent court not to dismiss the case simply because respondent Doloricon filed the complaint
for intervention alleging that he owned the carabaos.
Moreover, even assuming that respondent Japitana had a legal right to the carabaos which were in the possession of petitioner
Nacar, the proper procedure would not be to file an action for the recovery of the outstanding debts of the late Isabelo Nacar
against his stepfather, the petitioner Nacar as defendant. As we said in Maspil v. Romero (61 SCRA 197):
Appropriate actions for the enforcement or defense of rights must be taken in accordance with procedural rules and cannot be
left to the whims or caprices of litigants. It cannot even be left to the untrammeled discretion of the courts of justice without
sacrificing uniformity and equality in the application and effectivity thereof.
Considering the foregoing, the respondent court's denial of the motion to dismiss the complaint and its issuance of a writ of
attachment based on the allegations of the complaint are improper. With this conclusion, we find no need to discuss the other
issue on whether or not the procedural rules on the issuance of a writ of attachment were followed by the respondent court in
issuing the subject writ of attachment.
WHEREFORE, the petition is hereby granted. The preliminary mandatory injunction issued on January 13, 1971 is made
permanent and the cash bond filed by the petitioner in connection therewith is ordered returned to him.
SO ORDERED.

3
G.R. No. L-15388 January 31, 1961
DORA PERKINS ANDERSON, petitioner-appellee,
vs.
IDONAH SLADE PERKINS, oppositor-appellant.
Ponce Enrile, S. Reyna, Montecillo and Belo for petitioner-appellee.
Lazaro A. Marquez and J. D. Quirino for oppositor-appellant.
REYES, J.B.L., J.:
Appeal against an order of the Court of First Instance of Manila in Special Proceedings No. 29636 authorizing the special
administrator of the testate estate of the late Eugene Arthur Perkins to sell at public auction certain personal properties left by
the deceased.
It appears that said special proceedings were commenced on May 10, 1956, by a petition presented by Dora Perkin Anderson
for the probate of the supposed last will and testament of the late Eugene Arthur Perkins, who died in Manila on April 28, 1956
allegedly possessed of personal and real properties with a probable value of P5,000,000. On the same date of the filing of the
aforesaid petition, petitioner Dora Perkins Anderson also filed a urgent petition for the appointment of Alfonso Ponce Enrile as
special administrator of the estate, and on the same day, the court issued an order appointing Alfonso Ponce Enrile as such
special administrator upon his posting of a bond in the amount of P50,000. On July 9, 1956, Idonah Slade Perkins, surviving
spouse of the deceased entered an opposition to the probate of the will presented by petitioner Dora Perkins Anderson. On
September 28, 1956 the special administrator submitted an inventory of all the assets which have come to his knowledge as
belonging to the deceased Eugene Arthur Perkins at the time of his death.
About two years later, or on September 4, 1958, the special administrator submitted to the court a petition seeking authority to
sell, or give away to some charitable or educational institution or institutions, certain personal effects left by the deceased,
such as clothes, books, gadgets, electrical appliances, etc., which were allegedly deteriorating both physically and in value, in
order to avoid their further deterioration and to save whatever value migh be obtained in their disposition. When the motion
was heard on September 25, 1958, the court required the administrator to submit a specification of the properties sought to be
sold, and in compliance therewith, the special administrator, on October 21, 1958, submitted to the court, in place of a
specification, a copy of the inventory of the personal properties belonging to the estate with the items sought to be sold
marked with a check in red pencil, with the statement that said items were too voluminous to enumerate.
On July 9, 1956, Idonah Slade Perkins filed an opposetion to the proposed sale. Reasons, for the opposition were that (1) most
of the properties sought to be sold were conjugal properties of herself and her deceased husband; and (2) that unauthorized
removal of fine pieces of furniture belonging to the estate had been made.
The opposition notwithstanding, the lower court, on December 2, 1958, approved the proposed sale, authorizing the Sheriff of
Manila to conduct the same. Oppositor Idonah Slade Perkins moved to reconsider this order on the grounds (1) that said order
in effect authorized the special administrator to sell the entire personal estate of the deceased, contrary to Rule 81, section 2.
Rules of Court; (2) that said order was issued without a showing that the goods and chattels sought to be sold were perishable,
pursuant to Rule 81, section 2, Rules of Court; (3) that the personalty sought to be sold represented the lifetime savings and
collections of oppositor; (4) that there is evidence on record showing unauthorized withdrawals from the properties of the
estate, and the sale of the inventoried lot would prevent identification and recovery of the articles removed; and (5) that there
is also evidence showing oppositor's separate rights to a substantial part of the personal estate.
On February 23, 1959, the lower court denied the above motion for reconsideration. Whereupon, oppositor Idonah Slade
Perkins appealed to this court.
Appellant first claims that the personal properties sought to be sold not being perishable, the special administrator has no legal
authority to sell them. This argument is untenable, because section 2, Rule 81, of the Rules of Court, specifically provides that
the special administrator "may sell such perishable and other property as the court orders sold", which shows that the special
administrator's power to sell is not limited to "perishable" property only.
It is true that the function of a special administrator is only to collect and preserve the property of the deceased until a regular
administrator is appointed (sec. 2, Rule 81; De Gala v. Gonzales, 53 Phil. 104; Collins v. Henry, 118 S.E. 729, 155 Ga. 886;
Sqydelko v. Smith's Estate, 244 N.W. 149, 259 Mich. 519). But it is not alone the specific property of the estate which is to be
preserved, but its value as well, as shown by the legal provision for the sale by a special administrator of perishable property
(Cao vs. Cascade Silver Mines & Mills, et al., 213 P. 109 66 Mont. 488). It is in line with this general power of the special
administrator to preserve not only the property of the estate but also its value, that section 2, Rule 81, also empowers such
administrator to sell "other proerty as the court ordered sold;" .

4
There is, however, a serious obstacle to the proposed sale, namely, the vigorous opposition presented thereto the appellant,
the surviving spouse of the deceased, on the ground that she is allegedly entitled to a large portion of the personal properties in
question, either because the were conjugal property of herself and the deceased, or because they are her own, exclusive,
personal property. Indeed the records show that up to the time the propose sale was asked for and judicially approved, no
proceeding had as yet been taken, or even started, to segregate the alleged exclusive property of the oppositor-appellant from
the mass of the estate supposedly left by the deceased or to liquidate the conjugal partnership property of the oppositor-
appellant and the deceased. Until, therefore the issue of the ownership of the properties sought to be sold is heard and
decided, and the conjugal partnership liquidated; or, at least, an agreement be reached with a appellant as to which properties
of the conjugal partnership she would not mind being sold to preserve their value the proposed sale is clearly premature. After
all, most of the items sought to be sold — pieces of furniture, kitchen and dinner ware, electrical appliances, various gadget and
books — can easily be protected and preserved with proper care and storage measures in either or both of two residential
houses (in Manila and in Baguio City left by the deceased, so that no reasons of extreme urgency justify the proposed sale at
this time over the strong opposition and objection of oppositor-appellant who may later be adjudged owner of a substantial
portion of the personal estate in question.
The special administrator claims in his brief that t oppositor-appellant should have indicated the alleged "fine furniture" which
she did not want sold and that her refusal to do so is an indication of her unmeritorious claim. But it does not appear that
appellant was given a reasonable opportunity to point out which items in the inventory she did not want sold. In fact, her
opposition to the proposed sale and later her motion for reconsideration to the order approving the same were overruled by
the court without so much as stating reasons why the grounds for her opposition were not well-founded; the records do not
even show that an inquiry was made as to the validity of the grounds of her opposition.
WHEREFORE, the lower court's order of December 2, 1958 authorizing the special administrator to sell certain personal
properties of the estate is set aside, with costs against the special administrator Alfonso Ponce Enrile and petition-appellee
Dora Perkins Anderson.

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G.R. No. 92436 July 26, 1991
MARIA VDA. DE REYES, EFREN REYES, ELVIRA REYES-TIMBOL, ERLINDA REYES-VALERIO, ERNESTO REYES, ELIZABETH REYES,
ALEX, RAFAEL II, EMELINA and EVELYN, all surnamed REYES, represented by their mother, MARIA VDA. DE REYES, petitioners,
vs.
THE COURT OF APPEALS AND SPOUSES DALMACIO GARDIOLA and ROSARIO MARTILLANO respondents.
De Lara, De Lunas & Rosales for petitioners.
Santos, Pilapil & Associates for private respondents.

DAVIDE, JR., J.:

Assailed before Us in this appeal by certiorari under Rule 45 of the Rules of Court is the decision of the respondent Court of
Appeals in C.A.-G.R. CV No. 11934, promulgated on 20 October 1989,1 reversing the decision of 1 October 1986 of Branch 21
(Imus, Cavite) of the Regional Trial Court of the Fourth Judicial Region in Civil Case No. RTC-BCV-83-17 entitled Maria vda. de
Reyes, et al. vs. Spouses Dalmacio Gardiola and Rosario Martillano, and Spouses Ricardo M. Gardiola and Emelita Gardiola,2
and the resolution of 1 March 1990 denying the petitioner's motion for reconsideration.
As culled from both decisions and the pleadings of the parties, the following facts have been preponderantly established:
During his lifetime, one Gavino Reyes owned a parcel of land of approximately 70 hectares, more or less, located at Sangayad,
Ulong-Tubig, Carmona, Cavite. He sought to bring said land under the operation of the Torrens System of registration of
property. Unfortunately, he died in 1921 without the title having been issued to him. The application was prosecuted by his
son, Marcelo Reyes, who was the administrator of his property.
In 1936 the above property was surveyed and subdivided by Gavino's heirs (Exh. "6"). In the subdivision plan, each resultant lot
was earmarked, indicated for and assigned to a specific heir. It appears therein that two lots, one of which is Lot No. I A-14 (Exh.
"6-A"), were allotted to Rafael Reyes, Sr., one of Gavino's children. Per testimony of Juan Poblete, the children thereafter
secured tax declarations for their respective shares.
In 1941, or about twenty (20) years after the death of Gavino, the original certificate of title for the whole property — OCT No.
255 — was issued. It was, however, kept by Juan Poblete, son-in-law of Marcelo Reyes, who was by then already deceased. The
heirs of Gavino were not aware of this fact.
On 3 December 1943, Rafael Reyes, Sr. sold a parcel of land with an area of 23,431 square meters, more or less, to private
respondent Dalmacio Gardiola (Exh. "5"). According to the vendee, this parcel corresponds to Lot No. 1-A-14 of the subdivision
plan aforestated. The deed of sale, however, did not specifically mention Lot No. 1-A-14. The vendee immediately took
possession of the property and started paying the land taxes therein.
In 1945 or thereabouts, Juan Poblete "revalidated" the original Certificate of Title. As reconstituted, the new title is OCT (0-
4358) RO-255 (Exhs. "4" to "4-A").
On 21 October 1967, when the heirs of Gavino Reyes executed a Deed of Extrajudicial Settlement of Estate (Exh. "D") based on
the aforestated subdivision plan (Exh. "6"), the lot that was intended for Rafael Reyes, Sr., who was already deceased, was
instead adjudicated to his only son and heir, Rafael Reyes, Jr. (the predecessor-in-interest of the petitioners herein). Private
respondent Rosario Martillano signed the deed in representation of her mother, Marta Reyes, one of the children of Gavino
Reyes.
As a result of the Extrajudicial Settlement, OCT RO-255 was cancelled and in lieu thereof, several transfer certificates of title
covering the subdivided lots were issued in the names of the respective adjudicatees. One of them is TCT No. 27257 in the
name of Rafael Reyes, Jr. covering Lot No. 1-A-14. The Transfer Certificates of Title were, however, kept by one Candido
Hebron. On 10 January 1969, some of the heirs of Gavino Reyes filed a case of Annulment of Partition and Recovery of
Possession before the Court of First Instance of Cavite City, which was docketed therein as Civil Case No. 1267. One of the
defendants in said case is herein private respondent Rosario Martillano. The case was dismissed on 18 September 1969, but
Candido Hebron was ordered by the trial court to deliver to the heirs concerned all the transfer certificates of title in his
possession.3
After obtaining the Transfer Certificate of Title for Lot No. 1-A-14 from Hebron, pursuant to the aforesaid order in Civil Case No.
1267, petitioners herein, as successors-in-interest of Rafael Reyes, Jr., filed on 14 March 1983 with the Regional Trial Court the
above-mentioned Civil Case No. RTC-BCV-83-17 against private respondents (defendants therein) for recovery of possession or,
in the alternative, for indemnification, accounting and damages. They allege therein that after "having definitely discovered
that they are the lawful owners of the property," (Lot No. 1-A-14), they, "including Rafael Reyes, Jr., during his lifetime, made
repeated demands to (sic) defendants to surrender the possession of and vacate the parcel of land belonging to the former, but

6
defendants refused to vacate and surrender the possession of the said land to herein plaintiffs;" the last of the demands was
allegedly made on 8 October 1982. They further allege that they have been deprived by said defendants of the rightful
possession and enjoyment of the property since September 1969 — which coincides with the date of the order in Civil Case No.
1267.4
In their answer, private respondents deny the material averments in the complaint and assert that they are the owners of the
lot in question, having bought the same from Rafael Reyes, Sr., that the issuance of TCT No. 27257 is null and void, for such sale
was known to Rafael Reyes, Jr.; that they have been in possession of the property and have been paying the land taxes thereon;
and that petitioners are barred by prescription and/or laches.5
Petitioners amended their complaint on 21 March 1985 to implead as additional defendants the spouses Ricardo M. Gardiola
and Emerita Gardiola, on the basis of the following claims:
xxx xxx xxx
9. Meanwhile, during the presentation of the defendants spouses Dalmacio Gardiola and Rosario Martillano's evidence the
former testified that they mortgaged the subject land to the Rural Bank of Carmona Inc. For their failure to redeem the
mortgage the same was foreclosed by the bank.
10. However, within the period of one(1) year from such foreclosure the questioned land was redeemed by the original
defendants' son in the person of Ricardo M. Gardiola, who was knowledgeable/aware of the pendency of the above captioned
case. The corresponding redemption was effected through a deed of conveyance, . . . .6
The prayer of the amended complaint now contains the alternative relief for indemnification for the reasonable value of the
property "in the event restitution of the property is no longer possible."7
In its decision of 1 October 1986,8 the trial court concluded that petitioners' "title over the subject property is valid and regular
and thus they are entitled to its possession and enjoyment," and accordingly decided thus:
WHEREFORE, the defendants or anyone acting for and in their behalf are hereby ordered to relinguish possession or vacate the
property in question which is covered by Transfer Certificate of Title No. T-27257 in favor of the plaintiffs.
All other claims and/or counterclaims of the parties relative to this case are dismissed for lack of proper substantiation.
The conclusion of the trial court is based on its finding that (a) there is no evidence that the heirs of Gavino Reyes entered into
any written agreement of partition in 1936 based on the subdivision plan; (b) there is no identity between Lot No. 1-14-A and
the land sold to private respondents by Rafael Reyes, Sr., or otherwise stated, the description of the latter as indicated in the
deed of sale (Exh. "5") does not tally with the description of the former; and (c) moreover:
Granting, arguendo, that the sale made by Rafael Reyes, Sr. to the defendants covered the land in question — Lot No. 1-A-14 —
and that Transfer Certificate of Title No. T-27257 was obtained by means of fraud, the claim of the defendants over the said
property is already barred. Action for reconveyance prescribes in four (4) years from the discovery thereof. If there was fraud,
the defendant could have discovered the same in 1967 when the partition was made in as much as defendant Rosario
Martillano was a party to that partition. Let us grant further that the issuance of Transfer Certificate of Title No. T-27257 to
Rafael Reyes, Jr. created a constructive or implied trust in favor of the defendants, again, the claim of the defendants is also
barred. From 1967 to the filing of their answer (let us consider this as an action for reconveyance) to this case sometime in July,
1983, a period of about sixteen (16) years had already elapsed. Prescriptibility of an action for reconveyance based on implied
or constructive trust is ten (10) years.
The trial court further held that the continued possession by private respondents, which it found to have started in 1943, did
not ripen into ownership because at that time, the property was already registered, hence it cannot be acquired by prescription
or adverse possession.9
Private respondents appealed the said decision to the Court of Appeals which docketed the appeal as C.A.-G.R. CV No. 11934. In
its decision of 20 October 1989, the respondent Court of Appeals formulated the issues before it as follows:
I
Whether or not the lower court erred in declaring that the property of the late Gavino Reyes consisting of 70 hectares was
partitioned only in 1967 by his grandchildren after discovery of the existence of OCT No. 255 and that no actual partition was
made in 1936 by the decedent's children.
II
Whether or not the lower court erred in concluding that the parcel of land sold by the appellees' predecessor-in-interest, the
late Rafael Reyes, Sr. to appellant Dalmacio Gardiola was not the same parcel of land under litigation.10

7
and resolved such issues, thus:
On the first issue, We believe that the lower court committed a reversible error when it declared that the landed estate of the
late Gavino Reyes was partitioned only in 1967 by the latter's grandchildren; and that no actual partition was made in 1936 by
the decedents' (sic) children. The evidence on record bears out the existence of a subdivision plan (Exh. 6) which was not
controverted nor denied by the appellees. In like manner, the lower court itself recognized the fact that the property of the late
Gavino Reyes consisting of 70 hectares was surveyed and subdivided in 1936 as evidenced by the said subdivision plan (Exh. 6).
With the existence of a subdivision plan, and from the uncontroverted testimony of appellants' witness, We can only infer that
at least an oral partition, which under the law is valid and binding, was entered into by the heirs of Gavino Reyes regarding his
properties in 1936. As held in a long line of decisions, extrajudicial partition can be done orally, and the same would be valid if
freely entered into (Belen v. Belen, 49 O.G. 997, March 1953). The reason for this is because a partition is not exactly a
conveyance for the reason that it does not involve transfer of property from one to the other but rather a confirmation by them
of their ownership of the property. It must also be remembered that when Gavino Reyes died on March 7, 1921, his property
was admittedly not yet covered by a torrens title, as it was only in 1941 when said properties were brought into the application
of the torrens system. With this factual milieu, it can also be concluded that his heirs have indeed settled, subdivided and
partitioned Gavino Reyes' landed estate without formal requirements of Rule 74 of the Rules of Court when a parcel of land is
covered by a torrens title. As told earlier, the Subdivision Plan (Exh. 6) undisputedly showed on its face that the 70 hectares of
land belonging to the late Gavino Reyes was subdivided and partitioned by his children in 1936. On this score, the partition of
the said property even without the formal requirements under the rule is valid as held in the case of Hernandez vs. Andal, 78
Phil. 176, which states:
xxx xxx xxx
Moreover, in the Deed of Sale dated December 3, 1943 (Exh. 5) executed by Rafael Reyes, Sr. in favor of appellant Dalmacio
Gardiola, the land sold therein was described as "na aking minana sa aking ama." This alone would confirm the contention of
the appellants that there was already an actual partition (at least an oral partition) of the property of Gavino Reyes in 1936. As
aforestated, the presence of the Subdivision Plan (Exh. 6) is an (sic) evidence of such partition which appellees failed to
controvert not to mention the fact that the lower court itself recognized the existence of said plan, in the same manner that it
concluded that the property was already surveyed and actually subdivided in 1936 (page 3, pars. 3 and 4, Decision).
From the foregoing considerations it is evident that the Deed of Extrajudicial Settlement of Estate (Exh. D) executed by the
grandchildren of the late Gavino Reyes in 1967 is of no moment considering that the property subject of the partition in the
deed was already partitioned in 1936 by the children of Gavino Reyes. It is for this reason that the lots supposedly inherited by
the grandchildren named in the deed of 1967 were the same lots inherited and given to their respective fathers or mothers in
1936 while the land was not yet covered by the torrens system. Hence, in the case of Rafael Reyes, Sr., the land inherited by
him was two (2) parcels of land known as Lots Nos. 1-A-3 and 1-A-14 described in the Subdivision plan of 1936 (Exh. 6), which
were the same parcels of land allegedly inherited by Rafael Reyes, Jr. from Gavino Reyes in representation of his father,
pursuant to the Deed of Extrajudicial Settlement of Estate for which TCT No. 27257 was issued.
Coming to the second issue, the lower court likewise erred when it concluded that the parcel of land sold by appellee's
predecessor-in-interest to appellant Dalmacio Gardiola was not the same parcel of land under litigation. It must be pointed out
that the identity of the parcel of land which the appellees sought to recover from the appellants was never an issue in the lower
court, because the litigants had already conceded that the parcel identified as Lot No. 1-A-14 in TCT No. 27257 was the same
parcel of land identified as Cadastral Lot No. 1228 and 1235 described in Tax Declaration No. 4766. Despite this admission,
however, the lower court declared that "as described in the deed of sale (Exh. 5), the land's description does not tally with the
description of Lot No. 1-A-14, the land in litigation." As correctly pointed out by the appellants however, the discrepancy in the
description was due to the fact that the description of the land sold in the Deed of Sale was expressed in layman's language
whereas the description of Lot No. 1-A-14 in TCT No. 27257 was done in technical terms. This was so because, when Rafael
Reyes, Sr. sold the property in dispute to appellant Dalmacio Gardiola on December 3, 1943, the only evidence of title to the
land then available in so far as Rafael Reyes, Sr. was concerned was Tax Declaration No. 4766, because at that time, neither he
nor appellant Dalmacio Gardiola was aware of the existence of OCT No. 255 as in fact TCT No. 27257 was issued only in 1967.
Consequently, the land subject of the Deed of Sale was described by the vendor in the manner as described in Tax Declaration
No. 4766. However, the description of the land appearing in the Deed of Sale (Exh. 5) was exactly the same land identified as
Lot No. 1-A-14 in the Subdivision Plan (Exh. 6) of 1936. Accordingly, the assumption of the lower court that "if the land sold by
Rafael Reyes, Sr. was the one now in litigation, he could have easily indicated Lot No. 1-A-14" is bereft of merit under the
foregoing circumstances. Interestingly enough, the appellees never denied the identity of the subject lot during the hearing at
the lower court. What they were denying only was the sale made by Rafael Reyes, Sr. to appellant Dalmacio Gardiola which
does not hold true because of the document denominated as Deed of Sale (Exh. 5).11
It concluded that the trial court erred when it ordered the private respondents or anyone acting in their behalf to relinquish the
possession or vacate the property in question. It thus decreed:

8
WHEREFORE, the appealed Judgment is ordered REVERSED and SET ASIDE and a new one is rendered declaring appellants to be
the lawful owners of the lot identified as Lot No. 1-A-14 in TCT No. 27257. No
costs.12
Their motion to reconsider the above decision having been denied by the Court of Appeals in its resolution of 1 March 1990,13
petitioners filed the instant petition on 6 April 1990 after having obtained an extension of time within which to file it.
The petition does not implead original new defendants Ricardo Gardiola and Emelita Gardiola.
As ground for their plea for the review of the decision of the Court of Appeals, petitioners allege that said court has decided
questions of substance in a way not in accord with law or applicable jurisprudence when it held that "the deed of extrajudicial
settlement of estate (Exh. "D") executed by the grandchildren of the late Gavino Reyes in 1967 is of no moment considering
that the property subject of the partition was already partitioned in 1936 by the children of Gavino Reyes." In support thereof,
they claim that (a) TCT No. 27257 covers two parcels of land; the lot described in paragraph 1 thereof is owned by petitioners
and that ownership was confirmed by this Court in G.R. No. 79882, hence, the Court of Appeals should have affirmed the
decision of the trial court; (b) private respondent Rosario Martillano was a party to the extrajudicial settlement of estate which
was duly registered in the Registry of Deeds in 1967; said registration is the operative act that gives validity to the transfer or
creates a lien upon the land and also constituted constructive notice to the whole world. The court cannot disregard the
binding effect thereof Finally, the pronouncement of the Court of Appeals that private respondents are the lawful owners of
the lot in question "militates against the indefeasible and incontrovertible character of the torrens title,"14 and allows
reconveyance which is not tenable since the action therefor had already prescribed, as stated in the decision of the trial court.
In the resolution of 7 May 1990, We required respondents to comment on the petition. But even before it could do so,
petitioner, without obtaining prior leave of the Court, filed on 29 May 1990 a so-called Supplemental Arguments in Support of
The Petition For Review On certiorari15 wherein they assert, among others, that: (a) the findings of facts of respondent Court
are contrary to those of the trial court and appear to be contradicted by the evidence on record thus calling for the review by
this Court;16 (b) it also committed misapprehension of the facts in this case and its findings are based on speculation,
conjecture and surmises; (c) private respondents' attack on petitioners' title is a collateral attack which is not allowed; even if it
is allowed, the same had already prescribed and is now barred.
It was only on 15 June 1990 that private respondents filed their Comment.17 We required petitioners to reply thereto, which
they complied with on 8 August 1990.18 A rejoinder was filed by private respondents on 29 August 1990.
We gave due course to the petition on 19 September 1990 and required the parties to submit simultaneously their respective
memoranda which they complied with.
Attached as Annex "A" to private respondent's Memorandum, which was filed on 10 December 1990, is the Resolution of this
Court (Third Division) of 20 August 1990 in G.R. No. 92811 entitled Spouses Artemio Durumpili and Angustia Reyes vs. The Court
of Appeals and Spouses Dalmacio Gardiola and Rosario Martillano, which also involves the property of Gavino Reyes, the
partition thereof among his children in 1936, and the extrajudicial settlement in 1967.
In said resolution, this Court held:
. . . The partition made in 1936, although oral, was valid. The requirement in Article 1358 of the Civil Code that acts which have
for their object the creation, transmission, modification or extinguishment of real rights over immovable property must appear
in a public instrument is only for convenience and not for validity or enforceability as between the parties themselves. [Thunga
Hui vs. Que Bentec, 2 Phil. 561 (1903)] The subsequent execution by the heirs of the Extrajudicial Partition in 1967 did not alter
the oral partition as in fact the share pertaining to Angustia Reyes corresponded to that previously assigned to her father.
Considering that Angel Reyes sold this property to Basilio de Ocampo who, in turn, sold the same to respondents, we agree
with the Court of Appeals that the latter lawfully acquired the property and are entitled to ownership and possession thereof.
In answer to the charge of private respondents that petitioners deliberately failed to cite this resolution, the latter, in their
reply-memorandum dated 15 March 1991 and filed three days thereafter, allege:
Our failure to mention the aforementioned resolution before this Honorable Court is not deliberate nor with malice
aforethought. The reason is that to date, we have not yet received any resolution to our Motion For Leave of Court To Refer
Case To The Honorable Supreme Court En Banc. Moreover, we honestly feel that the resolution that will be issued therein will
not be applicable to the case before this Honorable Court's Second Division. It should be mentioned that in the Durumpili case
before the Third Division, the Court of Appeals relied on the alleged confirmation of the sale executed by Angustia Reyes, while
in the Reyes case before this Second Division, there was no sale that was executed by the petitioners Reyes' predecessor-in-
interest, Rafael Reyes, Jr.
The foregoing claim is not supported by the rollo of G.R. No. 92811, which reveals the following: (a) On 18 September 1990,
petitioners therein, represented by De Lara, De Lunas and Rosales, who are the lawyers of petitioners in the instant case, filed a

9
motion for the reconsideration of the resolution of 20 August 1990.19 b) This motion was denied in the resolution of 1 October
1990.20 c) On 17 November 1990, petitioners therein, through the same lawyers, filed a Motion For Leave Of Court To Refer
Case To The Honorable Supreme Court En Banc And/Or Motion For Reconsideration21 wherein they specifically admit that said
case and the instant petition have "identity and/or similarity of the parties, the facts, the issues raised," even going to the
extent of "graphically" illustrating where such similarities lie.22 d) This motion was denied in the resolution of 28 November
1990. Copy thereof was furnished the attorneys for petitioners.23 e) Entry of judgment had already been made therein and a
copy thereof was sent to petitioner's counsel per Letter of Transmittal of the Deputy Court and Chief of the Judicial Records
Office dated 20 December 1990.
What comes out prominently from the disquisitions of the parties is this simple issue: whether or not respondent Court of
Appeals committed any reversible error in setting aside the decision of the trial court.
We find none. The reversal of the trial court's decision is inevitable and unavoidable because the legal and factual conclusions
made by the trial court are unfounded and clearly erroneous. The Court of Appeals was not bound to agree to such conclusions.
The trial court erred in holding that: (a) there was no partition among the children of Gavino Reyes in 1936 since there is no
written evidence in support thereof; yet, it admits that there was a survey and subdivision of the property and the adjudication
of specific subdivision lots to each of the children of Gavino; (b) the land sold by Rafael Reyes, Sr. to private respondents is not
identical to Lot No. 1-A-14, the lot specified for and adjudicated to Rafael Reyes, Jr. in the partition agreement; and (c) if the
land sold by Rafael Reyes, Sr. to private respondent Dalmacio Gardiola is indeed Lot No. 1-A-14 and that TCT No. T-27257 was
obtained through fraud, the remedy open to the vendee was an action for reconveyance, which should have been brought
within four (4) years from the discovery thereof in 1967 when the Extrajudicial Settlement was executed since private
respondent Rosario Martillano, wife of Dalmacio, was a party thereto.
The Court of Appeals correctly held that the partition made by the children of Gavino Reyes in 1936, although oral, was valid
and binding. There is no law that requires partition among heirs to be in writing to be valid.24 In Hernandez vs. Andal, supra,
this Court, interpreting Section 1 of Rule 74 of the Rules of Court, held that the requirement that a partition be put in a public
document and registered has for its purpose the protection of creditors and at the same time the protection of the heirs
themselves against tardy claims. The object of registration is to serve as constructive notice to others. It follows then that the
intrinsic validity of partition not executed with the prescribed formalities does not come into play when there are no creditors
or the rights of creditors are not affected. Where no such rights are involved, it is competent for the heirs of an estate to enter
into an agreement for distribution in a manner and upon a plan different from those provided by law. There is nothing in said
section from which it can be inferred that a writing or other formality is an essential requisite to the validity of the partition.
Accordingly, an oral partition is valid.
Barcelona, et al. vs. Barcelona, et al., supra, provides the reason why oral partition is valid and why it is not covered by the
Statute of Frauds: partition among heirs or renunciation of an inheritance by some of them is not exactly a conveyance of real
property for the reason that it does not involve transfer of property from one to the other, but rather a confirmation or
ratification of title or right of property by the heir renouncing in favor of another heir accepting and receiving the inheritance.
Additionally, the validity of such oral partition in 1936 has been expressly sustained by this Court in the Resolution of 20 August
1990 in G.R. No. 92811.25
But even if We are to assume arguendo that the oral partition executed in 1936 was not valid for some reason or another, We
would still arrive at the same conclusion for upon the death of Gavino Reyes in 1921, his heirs automatically became co-owners
of his 70-hectare parcel of land. The rights to the succession are transmitted from the moment of death of the decedent.26 The
estate of the decedent would then be held in co-ownership by the heirs. The co-heir or co-owner may validly dispose of his
share or interest in the property subject to the condition that the portion disposed of is eventually allotted to him in the
division upon termination of the co-ownership. Article 493 of the Civil Code provides:
Each co-owner shall have the full ownership of his part and the fruits and benefits pertaining thereto, and he may even
substitute another person in its enjoyment, except when personal rights are involved. But the effect of the alienation or the
mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the
termination of the co-ownership.
In Ramirez vs. Bautista,27 this Court held that every co-heir has the absolute ownership of his share in the community property
and may alienate, assign, or mortgage the same, except as to purely personal rights, but the effect of any such transfer is
limited to the portion which may be awarded to him upon the partition of the property.
In the case at bar, the lot sold by Rafael Reyes, Sr. to private respondent Dalmacio Gardiola is his share in the estate of his
deceased father, Gavino Reyes. It is the same property which was eventually adjudicated to his son and heir, Rafael Reyes, Jr.,
represented in turn by his heirs-petitioners herein-in the extrajudicial settlement of 1967.

10
In respect to the issue as to whether the property sold by Rafael Reyes, Sr. is identical to Lot No. 1-14-A, the trial court based its
conclusion that it is not, on his observation that the description of the former does not tally with that of the latter, moreover, if
Rafael did intend to sell Lot No. 1-14-A, he should have specifically stated it in the deed since at that time, the property had
already been partitioned and said lot was adjudicated to him. In addition to the contrary findings and conclusion of the
respondent Court on this issue to which We fully agree, it is to be stressed that Rafael had this property declared for taxation
purposes and the tax declaration issued was made the basis for the description of the property in the deed of sale. Upon the
execution of the deed of sale, vendee — herein private respondent Dalmacio Gardiola — immediately took possession of the
property. This is the very same property which is the subject matter of this case and which petitioners seek to recover from the
private respondents. The main evidence adduced for their claim of ownership and possession over it is TCT No. T-27257, the
certificate of title covering Lot No. 1-14-A. They therefore admit and concede that the property claimed by private respondent,
which was acquired by sale from Rafael Reyes, Sr., is none other than Lot No. 1-14-A.
The participation of private respondent Rosario Gardiola in the Extrajudicial Settlement did not place private respondents in
estoppel to question the issuance of TCT No. T-27257. As correctly maintained by private respondents, she signed it in
representation of her deceased mother, Marta Reyes, a daughter and an heir of Gavino Reyes. She did not sign for and in behalf
of her husband, Dalmacio Gardiola, vendee of the share of Rafael Reyes, Sr.
The same did not operate to divest the vendee of the share of Rafael Reyes, Sr. in the estate of Gavino.1âwphi1 Petitioners, as
mere successors-in-interest of Rafael Reyes, Jr., son of Rafael Reyes, Sr., can only acquire that which Rafael, Jr. could transmit to
them upon his death. The latter never became the owner of Lot No. 1-A-14 because it was sold by his father in 1943. The
issuance of TCT No. T-27257 in the name of Rafael Reyes, Jr., in so far as Lot No. 1-14-A is concerned, was clearly erroneous
because he never became its owner. An extrajudicial settlement does not create a light in favor of an heir. As this Court stated
in the Barcelona case,28 it is but a confirmation or ratification of title or right to property. Thus, since he never had any title or
right to Lot No. 1-14-A, the mere execution of the settlement did not improve his condition, and the subsequent registration of
the deed did not create any right or vest any title over the property in favor of the petitioners as heirs of Rafael Reyes, Jr. The
latter cannot give them what he never had before. Nemo dare potest quod non habet.
There is one more point that should be stressed here. Petitioners' immediate predecessor-in-interest, Rafael Reyes, Jr., never
took any action against private respondents from the time his father sold the lot to the latter. Neither did petitioners bring any
action to recover from private respondents the ownership and possession of the lot from the time Rafael Reyes, Jr. died. As
categorically admitted by petitioners in their complaint and amended complaint, it was only in or about September 1969 when,
after the delivery of TCT No. 27257 by Candido Hebron to them, that they definitely discovered that they were the owners of
the property in question. And yet, despite full knowledge that private respondents were in actual physical possession of the
property, it was only about thirteen and one-half (13 1/2) years later that they decided to file an action for recovery of
possession. As stated earlier, the original complaint was filed in the trial court on 14 March 1983. There was then absolutely no
basis for the trial court to place the burden on private respondents to bring an action for reconveyance within four (4) years
from their discovery of the issuance of the transfer certificate of title in the name of Rafael Reyes, Jr.
The instant petition then is without merit.
WHEREFORE, judgment is hereby rendered DENYING the petition with costs against petitioners.
SO ORDERED.

11
[G.R. No. 94918. September 2, 1992.]

DANILO I. SUAREZ, EUFROCINA SUAREZ-ANDRES, MARCELO I. SUAREZ, JR., EVELYN SUAREZ-DE LEON and REGINIO I. SUAREZ,
Petitioners, v. THE COURT OF APPEALS, VALENTE RAYMUNDO, VIOLETA RAYMUNDO, MA. CONCEPCION VITO and VIRGINIA
BANTA, Respondents.

Villareal Law Offices, for Petitioners.

Nelson Loyola for Private Respondent.

SYLLABUS

1. CIVIL LAW; WILLS AND SUCCESSION; LEGITIME; PROPRIETARY INTEREST OF THE CHILDREN, DIFFERENT AND ADVERSE FROM
THEIR MOTHER. — The legitime of the surviving spouse is equal to the legitime of each child. The proprietary interest of
petitioners in the levied and auctioned property is different from and adverse to that of their mother. Petitioners became co-
owners of the property not because of their mother but through their own right as children of their deceased father. Therefore,
petitioners are not barred in any way from instituting the action to annul the auction sale to protect their own interest.

DECISION

NOCON, J.:

The ultimate issue before Us is whether or not private respondents can validly acquire all the five (5) parcels of land co-owned
by petitioners and registered in the name of petitioner’s deceased father. Marcelo Suarez, whose estate has not been
partitioned or liquidated, after the said properties were levied and publicly sold en masse to private respondents to satisfy the
personal judgment debt of Teofista Suarez, the surviving spouse of Marcelo Suarez, mother of herein petitioners.chanrobles
law library

The undisputed facts of the case are as follows:chanrob1es virtual 1aw library

Herein petitioners are brothers and sisters. Their father died in 1955 and since then his estate consisting of several valuable
parcels of land in Pasig, Metro Manila has lot been liquidated or partitioned. In 1977, petitioners’ widowed mother and Rizal
Realty Corporation lost in the consolidated cases for rescission of contract and for damages, and were ordered by Branch 1 of
the then Court of First Instance of Rizal (now Branch 151, RTC of Pasig) to pay, jointly and severally, herein respondents the
aggregate principal amount of about P70,000 as damages. 1

The judgment against petitioner’s mother and Rizal Realty Corporation having become final and executory, five (5) valuable
parcel of land in Pasig, Metro Manila, (worth to be millions then) were levied and sold on execution on June 24, 1983 in favor of
the private respondents as the highest bidder for the amount of P94,170.000. Private respondents were then issued a
certificate of sale which was subsequently registered or August 1, 1983.

On June 21, 1984 before the expiration of the redemption period, petitioners filed a reinvindicatory action 2 against private
respondents and the Provincial Sheriff of Rizal, thereafter docketed as Civil Case No. 51203, for the annulment of the auction
sale and the recovery of the ownership of the levied pieces of property. Therein, they alleged, among others, that being
strangers to the case decided against their mother, they cannot be held liable therefor and that the five (5) parcels of land, of
which they are co-owners, can neither be levied nor sold on execution.

On July 31, 1984, the Provincial Sheriff of Rizal issued to private respondents a final deed of sale 3 over the properties.

On October 22, 1984, Teofista Suarez joined by herein petitioners filed with Branch 151 a Motion for Reconsideration 4 of the
Order dated October 10, 1984, claiming that the parcels of land are co-owned by them and further informing the Court the
filing and pendency of an action to annul the auction sale (Civil Case No. 51203), which motion however, was
denied.chanrobles.com:cralaw:red

12
On February 25, 1985, a writ of preliminary injunction was issued enjoining private respondents from transferring to third
parties the levied parcels of land based on the finding that the auctioned lands are co-owned by petitioners.

On March 1, 1985, private respondent Valente Raymundo filed in Civil Case No. 51203 a Motion to Dismiss for failure on the
part of the petitioners to prosecute, however, such motion was later denied by Branch 155, Regional Trial Court, Pasig.

On December 1985, Raymundo filed in Civil Case No. 51203 an Ex-Parte Motion to Dismiss complaint for failure to prosecute.
This was granted by Branch 155 through an Order dated May 29, 1986, notwithstanding petitioner’s pending motion for the
issuance of alias summons to be served upon the other defendants in the said case. A motion for reconsideration was filed but
was later denied.

On October 10, 1984, RTC Branch 151 issued in Civil Case Nos. 21736-21739 an Order directing Teofista Suarez and all persons
claiming right under her to vacate the lots subject of the judicial sale; to desist from removing or alienating improvements
thereon; and to surrender to private respondents the owner’s duplicate copy of the torrens title and other pertinent
documents.

Teofista Suarez then filed with the then Court of Appeals a petition for certiorari to annul the Orders of Branch 151 dated
October 10, 1984 and October 14, 1986 issued in Civil Case Nos. 21736-21739.

On December 4, 1986 petitioners filed with Branch 155 a Motion for reconsideration of the Order 5 dated September 24, 1986.
In an Order dated June 10, 1987, 6 Branch 155 lifted its previous order of dismissal and directed the issuance of alias
summons.chanrobles law library : red

Respondents then appealed to the Court of Appeals seeking to annul the orders dated February 25, 1985, 7 May 19, 1989 8 and
February 26, 1990 9 issued in Civil Case No. 51203 and further ordering respondent Judge to dismiss Civil Case No. 51203. The
appellate court rendered its decision on July 27, 1990, 10 the dispositive portion of which reads:jgc:chanrobles.com.ph

"WHEREFORE, the petition for certiorari is hereby granted and the questioned orders dated February 25, 1985, May 19, 1989
and February 26, 1990 issued in Civil Case No. 51203 are hereby annulled, further respondent Judge is ordered to dismiss Civil
Case No. 51203." 11

Hence, this appeal.

Even without touching on the incidents and issues raised by both petitioner and private respondents and the developments
subsequent to the filing of the complaint, We cannot but notice the glaring error committed by the trial court.

It would be useless to discuss the procedural issue on the validity of the execution and the manner of publicly selling en masse
the subject properties for auction. To start with, only one-half of the 5 parcels of land should have been the subject of the
auction sale.

The law in point is Article 777 of the Civil Code, the law applicable at the time of the institution of the case.

"The rights to the succession are transmitted from the moment of the death of the decedent."cralaw virtua1aw library

Article 888 further provides:chanrobles.com.ph : virtual law library

"The legitime of the legitimate children and descendants consists of one-half of the hereditary estate of the father and of the
mother.

The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the surviving spouse as
hereinafter provided."cralaw virtua1aw library

Article 892 par. 2 likewise provides:jgc:chanrobles.com.ph

"If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a portion equal to the
legitime of each of the legitimate children or descendants."cralaw virtua1aw library

13
Thus, from the foregoing, the legitime of the surviving spouse is equal to the legitime of each child.

The proprietary interest of petitioners in the levied and auctioned property is different from and adverse to that of their
mother. Petitioners became co-owners of the property not because of their mother but through their own right as children of
their deceased father. Therefore, petitioners are not barred in any way from instituting the action to annul the auction sale to
protect their own interest.

WHEREFORE, the decision of the Court of Appeals dated July 27, 1990 as well as its Resolution of August 28, 1990 are hereby
REVERSED and set aside; and Civil Case No. 51203 is reinstated only to determine that portion which belongs to petitioners and
to annul the sale with regard to said portion.chanrobles law library

SO ORDERED.

14
[G.R. No. 116018. November 13, 1996.]
NELIA A. CONSTANTINO, petitioner, vs. COURT OF APPEALS, AURORA S. ROQUE, PRISCILLA S. LUNA and JOSEFINA S. AUSTRIA,
respondents.
Agcaoili Law Offices for petitioner.
Geronimo O. Veneracion, Jr. for private respondents.
SYLLABUS
1. REMEDIAL LAW; CIVIL PROCEDURE; FORMAL OFFER OF EVIDENCE; RIGHT THERETO DEEMED WAIVED IN CASE AT BENCH. —
The trial court was correct in holding that petitioner waived the right to formally offer his evidence. A considerable lapse of
time, about three (3) months, had already passed before petitioner's counsel made effort to formally offer his evidence. For the
trial court to grant petitioner's motion to admit her exhibits would be to condone an inexcusable laxity if not non-compliance
with a court order which, in effect, would encourage needless delays and derail the speedy administration of justice. cdasia
2. CIVIL LAW; CONTRACTS; VALIDITY; NO MEETING OF THE MINDS BETWEEN PARTIES ON LAND AREA TO BE SOLD; CASE AT
BENCH. — Petitioner also insists that the real intent of the parties was to make the entire Lot 4-B the subject matter of the sale.
She claims that during cross-examination respondent Aurora S. Roque admitted that she signed in behalf of her co-heirs a
receipt for P30,000.00 as partial payment for the lot occupied by Ka Baring and Lina (relatives of petitioner) and Iling (Consuelo
Lim). . . . The admission of respondent Roque cannot prevail in the face of the clear evidence that there was as yet no meeting
of the minds on the land area to be sold since private respondents were still awaiting the survey to be conducted on the
premises. . . . Likewise, we find the allegation of respondents that they signed the deed prior to the survey, or before
determination of the area to be sold, worthy of credit as against the contention of petitioner that they signed after the survey
or on 10 October 1984. As found by the trial court, such contention was contradicted by petitioner's own witness who
positively asserted in court that the survey was conducted only on 16 October 1984 or six (6) days after the signing. Quite
obviously, when respondents affixed their signatures on the deed, it was still incomplete since petitioner who caused it to be
prepared left several spaces blank, more particularly as regards the dimensions of the property to be sold. The heirs were
persuaded to sign the document only upon the assurance of petitioner that respondent Roque, pursuant to their
understanding, would be present when the property would be surveyed after obtaining permission from the Bureau of Lands.
As it surfaced, the supposed understanding was merely a ruse of petitioner to induce respondents to sign the deed without
which the latter would not have given their conformity thereto. EaCSHI
3. ID.; ID.; ID.; FACT THAT DEED OF SALE WAS NOTARIZED IN A PLACE OTHER THAN WHERE SUBJECT LOT WAS SITUATED CASTS
DOUBT ON DUE EXECUTION OF SAID DEED; CASE AT BENCH. — The trial court correctly appreciated the fact that the deed was
notarized in Manila when it could have been notarized in Bulacan. This additional detail casts doubt on the procedural
regularity in the preparation, execution and signing of the deed. It is not easy to believe that petitioner and the ten (10) Torres
heirs traveled all the way to Manila to have their questioned document notarized considering that they, with the exception of
respondent Roque, are residents of Balagtas, Bulacan, where notaries public are easy to find. Consequently, the claim of private
respondents that they did not sign the document before a notary public is more plausible than petitioner's feeble claim to the
contrary.
4. ID.; ID.; FRAUD; ELEMENTS THEREOF; ANNULMENT OF CONTRACT PROPER IN CASE AT BENCH. — Apparently, petitioner
deceived respondents by filling the blank spaces in the deed, having the lots surveyed and subdivided, and then causing the
issuance of transfer certificates of title without their knowledge, much less consent. Thus all the elements of fraud vitiating
consent for purposes of annulling a contract concur: (a) It was employed by a contracting party upon the other; (b) It induced
the other party to enter into the contract; (c) It was serious; and, (d) It resulted in damages and injury to the party seeking
annulment. Perhaps, another compelling reason for the annulment of the document of settlement and conveyance is that the
second page thereof clearly manifests that the number of the subdivision plan and the respective areas of Lots 4-A and 4-B
were merely handwritten while all the rest of the statements therein were typewritten, which leads us to the conclusion that
handwritten figures thereon were not available at the time the document was formalized. IaHDcT
DECISION
BELLOSILLO, J p:
JOSEFA TORRES died intestate leaving a parcel of land located at Balagtas, Bulacan. Among her heirs are respondents Aurora S.
Roque, Priscilla S. Luna and Josefina S. Austria. Sometime in 1984, the heirs of Josefa Torres, as vendors, and petitioner Nelia A.
Constantino, as vendee, entered into a contract to sell a parcel of land with a total land area of two hundred and fifty (250)
square meters. The lot, owned in common by the Torres heirs, is being occupied by petitioners' mother and sister. An adjoining
lot, also co-owned by the heirs, is being occupied by spouses Severino and Consuelo Lim. Pursuant to their agreement, the heirs
authorized petitioner to prepare the necessary Deed of Extrajudicial Settlement of Estate with Sale.

15
After having the document drafted — with several spaces left blank including the specification as to the metes and bounds of
the land — petitioner asked the heirs to affix their signatures on the document. The heirs signed the document with the
understanding that respondent Aurora S. Roque, one of the heirs, would be present when the latter would seek permission
from the Bureau of Lands and have the land surveyed.
However, without the participation of any of the Torres heirs, the property was subsequently surveyed, subdivided and then
covered by TCT Nos. T-292265 and T-292266. Petitioner did not furnish the heirs with copies of the Deed of Extrajudicial
Settlement of Estate with Salenor of the subdivision plan and the certificates of title. Upon securing a copy of the deed from the
Registry of Deeds, the respondents learned that the area of the property purportedly sold to petitioner was much bigger than
that agreed upon by the parties. It already included the portion being occupied by the spouses Severino and Consuelo Lim.
On 2 June 1986, private respondents sent a letter to petitioner demanding the surrender to them of the deed of settlement and
conveyance, the subdivision plan and the certificates of title; but to no avail. On 25 June 1986 respondents filed with the
Regional Trial Court of Bulacan an action for annulment of the deed and cancellation of the certificates of title, with prayer for
recovery of damages, attorney's fees and costs of suit. 1
Petitioner controverted the allegations of respondents by presenting the Deed of Extrajudicial Settlement of Estate with Sale
dated 10 October 1984 wherein respondents agreed to divide and adjudicate among themselves the inherited property with an
area of one thousand five hundred and three (1,503) square meters. In the same document, they caused the subdivision of the
property into two (2) lots according to Plan No. PSD-03-009105 identified as Lot 4-A with an area of one thousand ninety-six
(1,096) square meters, and Lot 4-B with an area of four hundred and seven (407) square meters, and acknowledged the sale to
petitioner of said Lot 4-B. As a consequence, on 18 March 1985, the Register of Deeds issued TCT No. T-292265 in the name of
the heirs of Josefa Torres and TCT No. T-292266 in the name of petitioner.
In reply, private respondents reiterated that all the heirs signed the document before the land was surveyed and subdivided,
hence, there was as yet no definite area to be sold that could be indicated in the deed at the time of the signing. They also
claimed that they were not notified about the survey and the subdivision of the lot and therefore they could not have agreed
on the area supposedly sold to petitioner. The respondent heirs insist that they could not have agreed to the extent of the area
actually reflected in the deed because it included the portion being occupied by the Lim spouses, which was already the subject
of a previous agreement to sell between them and their predecessor.
The trial court entertained serious doubts with respect to the preparation and due execution of the Deed of Extrajudicial
Settlement of Estate with Sale taking into account that (a) while petitioner claimed that all the heirs signed before the notary
public and in her presence, she was not able to enumerate all the signatories to the document; (b) while petitioner claimed that
the document was signed only after the survey of the land was completed, or on 10 October 1984, such fact was negated by
her own witness who testified that the survey was conducted only on 16 October 1984; and, (c) while petitioner alleged that
the document was signed and notarized in Manila no explanation was offered why the same could not have been signed and
notarized in Bulacan where notaries public abound which could have been less inconvenient to the parties concerned.
Additionally, the trial court relied heavily on the assertions of respondents as reflected in their demand letter that they did not
give their consent to the sale of Lot 4-B.
Thus, on the basis of the evidence on record, the trial court on 27 September 1990 ordered the annulment and cancellation of
the Deed of Extrajudicial Settlement of Estate with Sale, TCT Nos. T-292265 and T-292266 and Subdivision Plan No. PSD-03-
009105. It also ordered petitioner to pay private respondents P50,000.00 for moral damages, P15,000.00 for attorney's fees,
and to pay the costs of suit. 2
On 16 March 1994 respondent Court of Appeals sustained the decision of the trial court, 3 and on 20 June 1994 denied the
motion to reconsider its decision. 4
Petitioner faults respondent Court of Appeals: (a) for disregarding documentary evidence already presented, marked and
identified on a purely technical ground, and (b) for concluding that the Deed of Extrajudicial Settlement of Estate with Sale did
not reflect the true intent of the parties.
Petitioner argues that the trial court should not have denied her motion to admit formal offer of evidence merely on the basis
of technicality such as late filing, citing Siguenza v. Court of Appeals. 5 We are not persuaded. Indeed, we held in Siguenza that
rules of procedure are not to be applied in a very rigid and technical sense as they are used only to help secure, not override,
substantial justice. Yet the holding is inapplicable to the present case as the trial court had a reasonable basis for denying
petitioner's motion —
On February 6, 1990, Atty. Ponciano Mercado, defendant's counsel, manifested in Court that he has (sic) no more witness to
present. He asked that he be given 15 days to make a formal offer of evidence and which the Court granted. At the scheduled
hearing of April 03, 1990, Atty. Ponciano Mercado . . . was not in Court. Atty. Veneracion, plaintiffs' counsel, called the attention
of the Court that Atty. Mercado has (sic) not yet filed and/or complied with the Court Order dated February 06, 1990, which is

16
to file his formal offer of evidence. On motion of Atty. Veneracion, defendant's right to file a formal offer of evidence was
deemed waived. Atty. Veneracion waived the presentation of rebuttal offer of evidence.
On May 11, 1990, the Court was in receipt of a motion to admit formal offer of exhibits filed by the defendant thru counsel,
Atty. Ponciano Mercado, on May 02, 1990. Considering that the same was filed out of time and the plaintiffs having filed their
memorandum already, the motion to admit formal offer of exhibits was denied (emphasis supplied).
The trial court was correct in holding that petitioner waived the right to formally offer his evidence. A considerable lapse of
time, about three (3) months, had already passed before petitioner's counsel made effort to formally offer his evidence. For the
trial court to grant petitioner's motion to admit her exhibits: would be to condone an inexcusable laxity if not non-compliance
with a court order which, in effect, would encourage needless delays and derail the speedy administration of justice.
Petitioner also insists that the real intent of the parties was to make the entire Lot 4-B the subject matter of the sale. She claims
that during cross-examination respondent Aurora S. Roque admitted that she signed in behalf of her co-heirs a receipt for
P30,000.00 as partial payment for the lot occupied by Ka Baring and Lina (relatives of petitioner) and Iling (Consuelo Lim).
Moreover, according to petitioner, the assertions of private respondents to petitioner contained in the demand letter should
not necessarily be true and that the validity of the Deed of Extrajudicial Settlement of Estate with Sale was not affected by the
fact that it was notarized in a place other than where the subject matter thereof was situated, citing Sales v. Court of Appeals. 6
These other arguments of petitioner are barren and futile. The admission of respondent Roque cannot prevail in the face of the
clear evidence that there was as yet no meeting of the minds on the land area to be sold since private respondents were still
awaiting the survey to be conducted on the premises. Obviously, the trial court only lent credence to the assertions in the
demand letter after having weighed the respective evidence of the parties. But even without the letter, the evidence of
respondents had already amply substantiated their claims.
We ruled in the Sales case that the extrinsic validity of a document was not affected by the fact that it was notarized in a place
other than where the subject matter thereof was located. What is more important under the Notarial Law is that the notary
public has authority to acknowledge the document executed within his territorial jurisdiction. The ruling in Sales is not
applicable to the present case. Our concern here is not whether the notary public had the authority to acknowledge the
document executed within his territorial jurisdiction but whether respondents indeed appeared before him and signed the
deed. However, the quantum of evidence shows that they did not.
The trial court correctly appreciated the fact that the deed was notarized in Manila when it could have been notarized in
Bulacan. This additional detail casts doubt on the procedural regularity in the preparation, execution and signing of the deed. It
is not easy to believe that petitioner and the ten (10) Torres heirs traveled all the way to Manila to have their questioned
document notarized considering that they, with the exception of respondent Roque, are residents of Balagtas, Bulacan, where
notaries public are easy to find. Consequently, the claim of private respondents that they did not sign the document before a
notary public is more plausible than petitioner's feeble claim to the contrary.
Likewise, we find the allegation of respondents that they signed the deed prior to the survey, or before determination of the
area to be sold, worthy of credit as against the contention of petitioner that they signed after the survey or on 10 October
1984. As found by the trial court, such contention was contradicted by petitioners' own witness who positively asserted in court
that the survey was conducted only on 16 October 1984 or six (6) days after the signing. Quite obviously, when respondents
affixed their signatures on the deed, it was still incomplete since petitioner who caused it to be prepared left several spaces
blank, more particularly as regards the dimensions of the property to be sold. The heirs were persuaded to sign the document
only upon the assurance of petitioner that respondent Roque, pursuant to their understanding, would be present when the
property would be surveyed after obtaining permission from the Bureau of Lands. As it surfaced, the supposed understanding
was merely a ruse of petitioner to induce respondents to sign the deed without which the latter would not have given their
conformity thereto. 7 Apparently, petitioner deceived respondents by filling the blank spaces in the deed, having the lots
surveyed and subdivided, and then causing the issuance of transfer certificates of title without their knowledge, much less
consent. Thus all the elements of fraud vitiating consent for purposes of annulling a contract concur: (a) It was employed by a
contracting party upon the other; (b) It induced the other party to enter into the contract; (c) It was serious; and, (d) It resulted
in damages and injury to the party seeking annulment. 8
Perhaps, another compelling reason for the annulment of the document of settlement and conveyance is that the second page
thereof clearly manifests that the number of the subdivision plan and the respective areas of Lots 4-A and 4-B were merely
handwritten while all the rest of the statements therein were typewritten, which leads us to the conclusion that handwritten
figures thereon were not available at the time the document was formalized.
WHEREFORE, there being no error to warrant a reversal of the decision and resolution in question of respondent Court of
Appeals, which affirmed the decision of the Regional Trial Court of Malolos, Bulacan, Br. 22, the instant petition is DENIED.
SO ORDERED.

17
[G.R. No. 124320. March 2, 1999.]
HEIRS OF GUIDO YAPTINCHAY AND ISABEL YAPTINCHAY, NAMELY: LETICIA ENCISO-GADINGAN, EMILIO ENCISO, AURORA
ENCISO, AND NORBERTO ENCISO, REPRESENTED BY LETICIA ENCISO-GADINGAN, ATTORNEY-IN-FACT, petitioners, vs. HON.
ROY S. DEL ROSARIO, PRESIDING JUDGE, RTC, BRANCH 21, IMUS, CAVITE; THE REGISTER OF DEEDS FOR TRECE MARTIRES
CITY, GEORGE T. CHUA, SPS. ALFONSO NG AND ANNABELLE CHUA, SPS. ROSENDO L. DY AND DIANA DY, SPS. ALEXANDER NG
AND CRISTINA NG, SPS. SAMUEL MADRID AND BELEN MADRID, SPS. JOSE MADRID AND BERNARDA MADRID, SPS. DAVID
MADRID AND VIOLETA MADRID, JONATHAN NG, SPS. VICTORIANO CHAN, JR. AND CARMELITA CHAN, SPS. MARIE TES C. LEE
AND GREGORIE W.C. LEE, JACINTO C. NG, JR., SPS. ADELAIDO S. DE GUZMAN AND ROSITA C. DE GUZMAN, SPS. RICARDO G.
ONG AND JULIE LIMIT, SPS. MISAEL ADELAIDA P. SOLIMAN AND FERDINAND SOLIMAN, SPS. MYLENE T. LIM AND ARTHUR
LIM, EVELYN K. CHUA, GOLDEN BAY REALTY AND DEVELOPMENT CORPORATION, respondents.
Jose J. Estrella, Jr., & Associates for petitioners.
Azcuna Yorac Sarmiento Arroyo & Chua Law Offices for private respondents.
SYNOPSIS
Petitioners are the legal heirs of the late Guido and Isabel Yaptinchay, the owners-claimants of Lot No. 1131 situated in Bancal,
Carmona, Cavite. Petitioners discovered that a portion, if not all, of the aforesaid properties were titled in the name of
respondent Golden Bay Realty and Development Corporation (Golden Bay) under Transfer Certificate of Title Nos. 225254 and
225255. They filed a complaint for annulment and/or declaration of nullity of TCT Nos. 493363-67 and its derivatives and as
alternative reconveyance of realty with prayer for writ of preliminary injunction and/or restraining order with damages with the
Regional Trial Court in Imus, Cavite. Private respondents presented a motion to dismiss on the grounds that the complaint
failed to state a cause of action and that petitioners did not have a right of action, that they have not established their status as
heirs and that the land being claimed is different from that of the private respondents. The said motion to dismiss was granted
by the respondent court holding that petitioners have not shown any proof or even a semblance of it except the allegations
that they are the legal heirs of the deceased couple. Petitioners interposed a motion for reconsideration but it was denied.
Hence, the present petition. Petitioners contended that the respondent court acted with grave abuse of discretion in ruling that
the issue of heirship should first be determined before the trial of the case could proceed. It is petitioners' submission that the
respondent court should have proceeded with the trial and simultaneously resolved the issue of heirship in the same case.
The Supreme Court dismissed the petition. The Court ruled that the trial court cannot make a declaration of heirship in the civil
action for the reason that such a declaration can only be made in a special proceeding. Under Section 3, Rule 1 of the 1997
Revised Rules of Court, a civil action is defined as "one by which a party sues another for the enforcement or protection of a
right, or the prevention or redress of a wrong" while a special proceeding is "a remedy by which a party seeks to establish a
status, a right, or particular fact." The Court held that the declaration of heirship can be made only in a special proceeding
inasmuch as the petitioners in the case at bar are seeking the establishment of a status or right. SEDICa
SYLLABUS
REMEDIAL LAW; CIVIL ACTIONS; TRIAL COURTS CANNOT MAKE A DECLARATION OF HEIRSHIP IN A CIVIL ACTION; SUCH
DECLARATION CAN ONLY BE MADE IN A SPECIAL PROCEEDING. — In Litam, etc., et al. vs. Rivera, this court opined that the
declaration of heirship must be made in an administration proceeding, and not in an independent civil action. This doctrine was
reiterated in Solivio vs. Court of Appeals, where the court held: "In Litam, et al. vs. Rivera, 100 Phil. 364, where despite the
pendency of the special proceedings for the settlement of the intestate estate of the deceased Rafael Litam, the plaintiffs-
appellants filed a civil action in which they claimed that they were the children by a previous marriage of the deceased to a
Chinese woman, hence, entitled to inherit his one-half share of the conjugal properties acquired during his marriage to Marcosa
Rivera, the trial court in the civil case declared that the plaintiffs-appellants were not children of the deceased, that the
properties in question were paraphernal properties of his wife, Marcosa Rivera, and that the latter was his only heir. On appeal
to this Court, we ruled that 'such declarations (that Marcosa Rivera was the only heir of the decedent) is improper, in Civil Case
No. 2071, it being within the exclusive competence of the court in Special Proceedings No. 1537, in which it is not as yet, in issue,
and, will not be, ordinarily, in issue until the presentation of the project of partition.' (p. 378)." The trial court cannot make a
declaration of heirship in the civil action for the reason that such a declaration can only be made in a special proceeding. Under
Section 3, Rule 1 of the 1997 Revised Rules of Court, a civil action is defined as "one by which a party sues another for the
enforcement or protection of a right, or the prevention or redress of a wrong" while a special proceeding is "a remedy by which
a party seeks to establish a status, a right, or a particular fact." It is then decisively clear that the declaration of heirship can be
made only in a special proceeding inasmuch as the petitioners here are seeking the establishment of a status or right. CacHES
DECISION
PURISIMA, J p:

18
At bar is a Petition for Certiorari under Rule 65 of the Revised Rules of Court assailing the Orders dated October 25, 1995 and
February 23, 1996, respectively, of Branch 21 of the Regional Trial Court in Imus, Cavite ("RTC").
The facts that matter are, as follows:
Petitioners claim that they are the legal heirs of the late Guido and Isabel Yaptinchay, the owners-claimants of Lot No. 1131
with an area of 520,638 and Lot No. 1132 with an area of 96,235 square meters, more or less situated in Bancal, Carmona,
Cavite.
On March 17, 1994, petitioners executed an Extra-Judicial Settlement of the estate of the deceased Guido and Isabel
Yaptinchay.
On August 26, 1994, petitioners discovered that a portion, if not all, of the aforesaid properties were titled in the name of
respondent Golden Bay Realty and Development Corporation ("Golden Bay") under Transfer Certificate of Title Nos. ("TCT")
225254 and 225255. With the discovery of what happened to subject parcels of land, petitioners filed a complaint for
ANNULMENT and/or DECLARATION OF NULLITY OF TCT NO. 493363, 493364, 493665, 493366, 493367; and its Derivatives; As
Alternative Reconveyance of Realty WITH A PRAYER FOR A WRIT OF PRELIMINARY INJUNCTION and/or RESTRAINING ORDER
WITH DAMAGES, docketed as RTC BCV-94-127 before Branch 21 of the Regional Trial Court in Imus, Cavite.
Upon learning that "Golden Bay" sold portions of the parcels of land in question, petitioners filed with the "RTC" an Amended
Complaint to implead new and additional defendants and to mention the TCTs to be annulled. But the respondent court
dismissed the Amended Complaint. cdlex
Petitioners moved for reconsideration of the Order dismissing the Amended Complaint. The motion was granted by the RTC in
an Order 1 dated July 7, 1995, which further allowed the herein petitioners to file a Second Amended Complaint, 2 which they
promptly did.
On August 12, 1995, the private respondents presented a Motion to Dismiss 3 on the grounds that the complaint failed to state
a cause of action, that plaintiffs did not have a right of action, that they have not established their status as heirs, that the land
being claimed is different from that of the defendants, and that plaintiffs' claim was barred by laches. The said Motion to
Dismiss was granted by the respondent court in its Order 4 dated October 25, 1995, holding that petitioners "have not shown
any proof or even a semblance of it — except the allegations that they are the legal heirs of the above-named Yaptinchays —
that they have been declared the legal heirs of the deceased couple."
Petitioners interposed a Motion for Reconsideration 5 but to no avail. The same was denied by the RTC in its Order 6 of
February 23, 1996.
Undaunted, petitioners have come before this Court to seek relief from respondent court's Orders under attack.
Petitioners contend that the respondent court acted with grave abuse of discretion in ruling that the issue of heirship should
first be determined before trial of the case could proceed. It is petitioners' submission that the respondent court should have
proceeded with the trial and simultaneously resolved the issue of heirship in the same case. cdll
The petition is not impressed with merit.
To begin with, petitioners' Petition for Certiorari before this Court is an improper recourse. Their proper remedy should have
been an appeal. An order of dismissal, be it right or wrong, is a final order, which is subject to appeal and not a proper subject
of certiorari. 7 Where appeal is available as a remedy certiorari will not lie. 8
Neither did the respondent court commit grave abuse of discretion in issuing the questioned Order dismissing the Second
Amended Complaint of petitioners, as it aptly ratiocinated and ruled:
"But the plaintiffs who claimed to be the legal heirs of the said Guido and Isabel Yaptinchay have not shown any proof or even a
semblance of it — except the allegations that they are the legal heirs of the aforementioned Yaptinchays — that they have been
declared the legal heirs of the deceased couple. Now, the determination of who are the legal heirs of the deceased couple must
be made in the proper special proceedings in court, and not in an ordinary suit for reconveyance of property. This must take
precedence over the action for reconveyance (Elena C. Monzon, et. al., v. Angelita Taligato, CA-G-R No. 33355, August 12,
1992)."
In Litam, etc., et. al. v. Rivera, 9 this court opined that the declaration of heirship must be made in an administration
proceeding, and not in an independent civil action. This doctrine was reiterated in Solivio v. Court of Appeals 10 where the court
held: cda
"In Litam, et al. v. Rivera, 100 Phil. 364, where despite the pendency of the special proceedings for the settlement of the
intestate estate of the deceased Rafael Litam, the plaintiffs-appellants filed a civil action in which they claimed that they were
the children by a previous marriage of the deceased to a Chinese woman, hence, entitled to inherit his one-half share of the

19
conjugal properties acquired during his marriage to Marcosa Rivera, the trial court in the civil case declared that the plaintiffs-
appellants were not children of the deceased, that the properties in question were paraphernal properties of his wife, Marcosa
Rivera, and that the latter was his only heir. On appeal to this Court, we ruled that 'such declarations (that Marcosa Rivera was
the only heir of the decedent) is improper, in Civil Case No. 2071, it being within the exclusive competence of the court in Special
Proceedings No. 1537, in which it is not as yet, in issue, and, will not be, ordinarily, in issue until the presentation of the project
of partition.' (p. 378)."
The trial court cannot make a declaration of heirship in the civil action for the reason that such a declaration can only be made
in a special proceeding. Under Section 3, Rule 1 of the 1997 Revised Rules of Court, a civil action is defined as "one by which a
party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong" while a special
proceeding is "a remedy by which a party seeks to establish a status, a right, or a particular fact." It is then decisively clear that
the declaration of heirship can be made only in a special proceeding inasmuch as the petitioners here are seeking the
establishment of a status or right. cdasia
We therefore hold that the respondent court did the right thing in dismissing the Second Amended Complaint, which stated no
cause of action. In Travel Wide Associated Sales (Phils.), Inc. v. Court of Appeals, 11 it was ruled that:
". . . if the suit is not brought in the name of or against the real party in interest, a motion to dismiss may be filed on the ground
that the complaint states no cause of action."
WHEREFORE, for lack of merit, the Petition under consideration is hereby DISMISSED. No pronouncement as to costs. cdtai
SO ORDERED.

20
G.R. No. 149017 November 28, 2008
VALENTE RAYMUNDO,petitioner,
vs.
TEOFISTA ISAGON VDA. DE SUAREZ, DANILO I. SUAREZ, EUFROCINA SUAREZ, MARCELO I. SUAREZ, JR, EVELYN SUAREZ, ET
AL., respondents.
DECISION
NACHURA, J.:
This petition, filed under Rule 65 of the Rules of Court, assails the Court of Appeals (CA) Decision1 and Resolution2 in CA-G.R. SP
No. 58090 which reversed, set aside and recalled the Regional Trial Court (RTC) Orders3 in Civil Case No. 51203.
First, the long settled facts.
Marcelo and Teofista Isagon Suarez'4 marriage was blessed with both material wealth and progeny in herein respondents,
namely, Danilo,5 Eufrocina, Marcelo Jr., Evelyn, and Reggineo,6 all surnamed Suarez. During their marriage, governed by the
conjugal partnership of gains regime, they acquired numerous properties, which included the following: (1) a parcel of land
situated in Barrio Caniogan, Pasig with an area of 348 square meters covered by Transfer Certificate of Title (TCT) No. 30680; (2)
property located in Pinagbuhatan, Pasig, with an area of 1,020 square meters under Tax Declaration No. A-016-01003; and (3)
Lot Nos. 5, 6 & 7, Block 2 covered by Tax Declaration No. A-01700723 (subject properties).
After the death of Marcelo Sr. in 1955, Teofista and herein respondents, as well as Elpidio Suarez,7 executed an Extrajudicial
Settlement of Estate,8 partitioning Marcelo Sr.'s estate, thus:
WHEREAS, the said deceased is survived by the parties hereto who are his only legal heirs: TEOFISTA ISAGON, being the
surviving spouse, and EUFROCINA S. ANDRES, ELPIDIO SUAREZ, DANILO SUAREZ, EVELYN SUAREZ, MARCELO SUAREZ, JR. and
REGGINEO SUAREZ, being the legitimate children of the deceased with the said TEOFISTA ISAGON;
WHEREAS, the minors ELPIDIO, SUAREZ, DANILO SUAREZ, EVELYN SUAREZ, MARCELO SUAREZ, JR. and REGGINEO SUAREZ are
represented herein by EUFROCINA S. ANDRES, in her capacity as the guardian and legal administrator of the property of the
said minors;
WHEREAS, there are no known debts or financial obligations of whatever nature and amount against the estate of the
deceased;
NOW, THEREFORE, in consideration of the foregoing premises, the Parties have agreed to settle and liquidate the assets of the
conjugal partnership between the deceased and TEOFISTA ISAGON, and to settle and adjudicate the estate of the said
deceased, by and pursuance to these presents, in the following manner, to wit:
1. That TEOFISTA ISAGON, as the surviving spouse and partner of the deceased, shall receive in absolute and exclusive
ownership the following properties as her lawful share in the assets of the conjugal partnership of gains between her and the
deceased, to wit:
(a) Half (1/2) interest and participation in the parcel of land covered by Tax Declaration No. 6938, situated at Sitio Pantayan,
Municipality of Taytay, Province of Rizal;
(b) Half (1/2) interest and participation in the parcel of land covered by Tax Declaration No. 6939, situated at Sitio Pantayan,
Municipality of Taytay, Province of Rizal;
(c) Half (1/2) interest and participation in the parcel of land covered by TCT No. 38291, situated at Barrio Rosario, Municipality
of Pasig, Province of Rizal;
(d) Half (1/2) interest and participation in the parcel of land covered by TCT No. 38290, situated at Barrio Rosario, Municipality
of Pasig, Province of Rizal;
(e) TWELVE THOUSAND FIVE HUNDRED THIRTY PESOS AND NINETY (P12,530.90) deposited with the Commercial Bank and Trust
Company of the Philippines, and THIRTY-NINE PESOS (P39.00) deposited with Prudential Bank.
2. That the Parties TEOFISTA ISAGON, EUFROCINA S. ANDRES, ELPIDIO SUAREZ, DANILO SUAREZ, EVELYN SUAREZ, MARCELO
SUAREZ, JR. and REGGINEO SUAREZ, shall each and all receive and be entitled to a share equivalent to one-seventh (1/7) of the
estate of the deceased MARCELO SUAREZ, which estate is comprised of the following properties, to wit:
(a) A parcel of land covered by TCT No. 30680, situated at Barrio Kaniogan, Municipality of Pasig, Province of Rizal, with an
assessed value of P4,150.00.

21
(b) Three (3) parcels of land covered by TCT Nos. 33982, 33983 and 33984, situated at Barrio Pineda, Municipality of Pasig,
Province of Rizal, with an assessed value of P560.00.
(c) A parcel of land covered by TCT 33986, situated at Barrio Pineda, Municipality of Pasig, Province of Rizal, with an assessed
value of P440.00.
(d) Two (2) parcels of land, being Lots Nos. 42 and 44 of the amendment-subdivision plan TY-4653-Amd., being a portion of Lot
2 described on the original plan II-4653, G.L.R.O. Record No. _____, situated at Barrio Santolan, Municipality of Pasig, Province
of Rizal, with a total assessed value of P590.00.
(e) Two parcels of land, being Lots Nos. 43 and 45 of the amendment-subdivision plan TY-4653-Amd., being a portion of Lot 2
described on the original plan II-4653, G.L.R.O. Record No. _______, situated at Barrio Santolan, Municipality of Pasig, Province
of Rizal, with a total assessed value of P1,190.00.
(f) A parcel of land, being Lot No. 6, Block 269 of the subdivision plan pos-112, being a portion of Lot 2, Block 348, Psd-3188,
G.L.R.O. Record Nos. 375,699 and 917, situated at San Felipe Neri, Province of Rizal, with an assessed value of P6,340.00.
(g) A parcel of land covered by OCT No. 391, situated in the Municipality of Taytay, Province of Rizal, with an assessed value of
P1,840.00.
(h) TWELVE THOUSAND (12,000) shares of stock of the Consolidated Mines, Inc. represented by Certificate No. 71-5-B (for
1,000 shares) and Certificate No. 12736 (for 11,000 shares).
PROVIDED, that their title to the properties hereinabove mentioned shall be in common and the share of each heir being pro
indiviso.
Curiously, despite the partition, title to the foregoing properties, explicitly identified in the Extrajudicial Settlement of Estate as
forming part of Marcelo's and Isagon's property regime, remained in the couple's name. Not surprisingly, Teofista continued to
administer and manage these properties. On the whole, apart from those now owned exclusively by Teofista, all the properties
were held pro indiviso by Teofista and her children; and respective titles thereto were not changed, with Teofista as de facto
administrator thereof.
In 1975, Rizal Realty Corporation (Rizal Realty) and Teofista, the latter owning ninety percent (90%) of the former's shares of
stock, were sued by petitioner Valente Raymundo, his wife Violeta, Virginia Banta and Maria Concepcion Vito (plaintiffs) in
consolidated cases for Rescission of Contract and Damages, docketed as Civil Case Nos. 21736 to 21739. Thereafter, in 1975,
the then Court of First Instance (CFI) of Rizal, Branch 1, rendered judgment: (1) rescinding the respective contracts of plaintiffs
with Rizal Realty and Teofista, and (2) holding the two defendants solidarily liable to plaintiffs for damages in the aggregate
principal amount of about P70,000.00.9
When the judgment of the CFI became final and executory, herein subject properties were levied and sold on execution on June
24, 1983 to satisfy the judgment against Teofista and Rizal Realty. The aforementioned plaintiffs were the highest bidder, and
bought the levied properties for the amount of P94,170.00. As a result, a certificate of sale was issued to them and registered in
their favor on August 1, 1983. On July 31, 1984, the Provincial Sheriff of Rizal issued a final deed of sale over the subject
properties.
Parenthetically, before expiration of the redemption period, or on June 21, 1984, herein respondents filed a revindicatory
action against petitioner Valente, Violeta, Virginia and Maria Concepcion, docketed as Civil Case No. 51203, for the annulment
of the auction sale and recovery of ownership of the levied properties. Essentially, respondents alleged in their complaint that
they cannot be held liable for the judgment rendered against their mother, Teofista, not having been impleaded therein; and
consequently, the subject properties, which they own pro indiviso with their mother, can neither be levied nor be sold on
execution.
Meanwhile, the RTC, Branch 151, formerly the CFI, Branch 1, in Civil Case Nos. 21376 to 21379, issued an Order10 directing
Teofista: (1) to vacate the subject properties, (2) to desist from despoiling, dismantling, removing or alienating the
improvements thereon, (3) to place petitioner Valente, Violeta, Virginia and Maria Concepcion in peaceful possession thereof,
and (4) to surrender to them the owner's duplicate copy of the torrens title and other pertinent documents. Herein
respondents, joined by their mother, Teofista, filed a Motion for Reconsideration arguing that the subject properties are co-
owned by them and further informing the RTC of the filing and pendency of Civil Case No. 51203. Nonetheless, the trial court
denied Teofista's and herein respondents' motion, reiterated its previous order, which included, among others, the order for
Teofista and all persons claiming right under her, to vacate the lots subject of the judicial sale.
Undaunted, Teofista and herein respondents filed a petition for certiorari before the CA to annul the foregoing orders. The
appellate court, on July 6, 1987, dismissed Teofista's and herein respondents' petition, thus:

22
We believe this petition cannot prosper for two reasons. First, as purported case for certiorari it fails to show how the
respondent judge had acted without or in excess of jurisdiction or with grave abuse of discretion. The two orders being assailed
were preceded by a final judgment, a corresponding writ of execution, a levy on execution and a judicial sale, all of which enjoy
a strong sense presumption of regularity.
Secondly, as far as [petitioner] Teofista Suarez is concerned, she cannot complain about the levy because she was a party in the
consolidated cases where judgment was rendered against her in her personal capacity. Since she did not appeal from the
decision, she cannot say that the judgment is erroneous for an obligation that belong to the corporation. And with respect to
the children of Teofista Suarez, who are co-petitioners in this proceedings [herein respondents], suffice it to point out that not
being parties in the consolidated cases, what they should have done was to immediately file a third party claim. The moment
levy was made on the parcels of land, which they claim are theirs by virtue of hereditary succession, they should have
seasonably filed such claim to protect their rights. As the record discloses, however, the children chose to remain silent, and
even allowed the auction sale to be held, filing almost a year later a half-hearted complaint to annul the proceedings which
they allowed to be dismissed by not diligently prosecuting it.
In Santos v. Mojica (10 SCRA 318), a partition case with third- party claimants, the Supreme Court came out with the following
ruling: "The procedure (a petition for certiorari) followed by him (a petitioner not party to the original partition case) in
vindicating his right is not the one sanctioned by law, for he should have filed a separate and independent action making parties
therein the sheriff and the plaintiffs responsible for the execution xxx. It can, therefore, be said that (he) acted improperly in
filing the present petition because his remedy was to file a separate and independent action to vindicate his ownership over the
land.
WHEREFORE, the petition is denied and the restraining order previously issued is DISSOLVED, with costs against petitioners. 11
On the other litigation front concerning Civil Case No. 51203, a writ of preliminary injunction was issued by the RTC Pasig,
Branch 155, on February 25, 1985, enjoining petitioner Valente, Violeta, Virginia and Maria Concepcion from transferring to
third parties the levied properties based on its preliminary finding that the auctioned properties are co-owned by Teofista and
herein respondents. Subsequently, however, Civil Case No. 51203 was dismissed by the RTC, Branch 155, at the instance of
petitioner Valente for failure of herein respondents to prosecute. But in yet another turn of events, the RTC, Branch 155, lifted
its previous order of dismissal and directed the issuance of alias summons.
Thus, it was now petitioner Valente's, Violeta's, Virginia's and Maria Concepcion's turn to file a petition for certiorari with the
CA, assailing the various orders of the RTC, Branch 155, which all rejected their bid to dismiss Civil Case No. 51203. The CA
granted their petition, thus:
And the fact that herein private respondents, as the legal heirs of Teofista Vda. de Suarez and supposedly not parties in Civil
Case Nos. 21376 - 21379 does not preclude the application of the doctrine of res judicata since, apart from the requisites
constitutive of this procedural tenet, they were admittedly the children of Teofista Suarez, who is the real party-in-interest in
the previous final judgment. As successors-in-interest of Teofista Suarez, private respondents merely stepped into the shoes of
their mother in regard to the levied pieces of property. Verily, there is identity of parties, not only where the parties in both
actions are the same, but where there is privity with them as in the cases of successors-in-interest by title subsequent to the
commencement of the action or where there is substantial identity.
Finally, the action to annul the judicial sale filed by herein private respondents is not the reinvindicatory suit, much less the
third party claim contemplated by Section 17 of Rule 39.
WHEREFORE, the petition for certiorari is hereby granted and the questioned orders dated February 25, 1985, May 19, 1989
and February 26, 1990 issued in Civil Case No. 51203 are hereby annulled; further respondent judge is ordered to dismiss Civil
Case No. 51203.12
From this ruling, herein respondents appealed to the Supreme Court. In Suarez v. Court of Appeals, 13 we reversed the appellate
court, thus:
Even without touching on the incidents and issues raised by both petitioner [herein respondents] and private respondents
[petitioner Valente, Violeta, Virginia and Maria Concepcion] and the developments subsequent to the filing of the complaint,
[w]e cannot but notice the glaring error committed by the trial court.
It would be useless to discuss the procedural issue on the validity of the execution and the manner of publicly selling en masse
the subject properties for auction. To start with, only one-half of the 5 parcels of land [subject properties] should have been the
subject of the auction sale.
The law in point is Article 777 of the Civil Code, the law applicable at the time of the institution of the case:
The rights to the succession are transmitted from the moment of the death of the decedent."

23
Article 888 further provides:
"The legitime of the legitimate children and descendants consists of one-half of the hereditary estate of the father and of the
mother.
The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the surviving spouse as
hereinafter provided."
Article 892, par. 2 likewise provides:
"If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a portion equal to the
legitime of each of the legitimate children or descendants."
Thus, from the foregoing, the legitime of the surviving spouse is equal to the legitime of each child.
The proprietary interest of petitioners [herein respondents] in the levied and auctioned property is different from and adverse
to that of their mother [Teofista]. Petitioners [herein respondents] became co-owners of the property not because of their
mother [Teofista] but through their own right as children of their deceased father [Marcelo Sr.]. Therefore, petitioners [herein
respondents] are not barred in any way from instituting the action to annul the auction sale to protect their own interest.
WHEREFORE, the decision of the Court of Appeals dated July 27, 1990 as well as its Resolution of August 28, 1990 are hereby
REVERSED and set aside; and Civil Case No. 51203 is reinstated only to determine that portion which belongs to petitioners and
to annul the sale with regard to said portion.
It was at this point when another series of events transpired, culminating in the present petition.
Upon our reinstatement of Civil Case No. 51203, each and every pleading filed by herein respondents, as plaintiffs therein, was
hotly contested and opposed by therein defendants, including petitioner Valente. Moreover, even at that stage, when the case
had been remanded with a directive to "determine that portion which belongs to [herein respondents] and to annul the sale
with regard to said portion," Civil Case No. 51203 had to be re-raffled and transferred, for varied reasons, to the different court
branches in Pasig City. In between all these, petitioner Valente, along with the other defendants, repeatedly filed a Motion to
Dismiss Civil Case No. 51203 for the purported failure of herein respondents to prosecute the case. Most of these Motions to
Dismiss were denied.
With each transfer of Civil Case No. 51203, the judge to which the case was raffled had to study the records anew. Expectedly,
part of the records went missing and were lost. On April 12, 1993, the Clerk of Court of RTC, Branch 71, to which Civil Case No.
51203 was remanded, filed a report on the records of the case, to wit:
1. The first volume of the record in the above-entitled case was recorded as received on June 20, 1990, by Sheriff Alejandro O.
Loquinario;
2. That the staff of Branch 71 at this time was sharing a small room with Branch 161 at the First Floor of the Justice Hall, and as
the Branch was newly formed, it had no equipment or furniture of its own, and was still undermanned;
3. That sometime in August 1990, Branch 71 moved to the staffroom of Branch 159 at the Second Floor of the Justice Hall;
4. That on October 25, 1990, this Court received a Notice of Judgment dated October 22, 1990 from the Court of Appeals that
ruled the dismissal of the above-entitled case, and as per standing instructions of Judge Graduacion A. Reyes-Claravall, the
same was bound as volume 2 of the case;
5. That just before the Christmas vacation in 1991, the branch was forced to hastily move all of its records and equipment to
branch 69, because of the unexpected notice we received that the room we were occupying was to be demolished in order to
meet the schedule for the renovation of the building;
6. That unfortunately, the room was demolished before the undersigned could make a last check to see if everything was
transferred;
7. That it was only later on that this office discovered that important documents were indeed lost, including transcripts of
stenographic notes in a case that was submitted for decision;
8. That sometime in May 1992, the branch moved its Office to its present location;
9. That on March 8, 1993, this Court received a copy of a Decision of the Supreme Court reversing the earlier ruling of the Court
of Appeals;
10. That it was at this time that the first volume of this case, which was bundled along with other cases which were decided
and/or archived, was reported as missing;

24
11. That from the time the same was found to be missing, Judge Claravall ordered that a search for the same be made in all of
the offices wherein this branch was forced to share a room with, as well as the Court of Appeals, in the event that the same was
transmitted to said Court;
12. That all the efforts were in vain, as said record could not be located anywhere;
13. That the undersigned now concludes that the first volume of the above-entitled case was probably lost during the
renovation of the Justice Hall Building, and will have to be reconstituted with the use of documents in the possession of the
parties, or documents entered as exhibits in other Courts.14
In this regard, herein respondents filed a Motion for Reconstitution of Records15 of the case. Initially, petitioner Valente, and
the other defendants -- Violeta, Virginia and Maria Concepcion -- opposed the motion.16 However, the trial court eventually
granted the motion for reconstitution, and ordered petitioner Valente and the other defendants to submit a copy of their
Answer filed thereat and copies of other pleadings pertinent to the case.17
Thereafter, three (3) incidents, among numerous others, set off by the parties' pleadings, are worth mentioning, to wit:
1. A Motion for Leave to File and Admit Supplemental Complaint18 filed by herein respondents. The Supplemental Complaint
additionally prayed that the levy and sale at public auction of the subject properties be annulled and set aside, as the bid price
was unconscionable and grossly inadequate to the current value of the subject properties. The Supplemental Complaint further
sought a re-bidding with respect to Teofista's share in the subject properties. Finally, it prayed that TCT No. 6509 in the name of
petitioner Valente, Violeta, Virginia and Maria Concepcion be cancelled and TCT No. 30680 in the name of Marcelo Suarez,
married to Teofista Isagon, be reinstated.
2. A Manifestation and Motion (to Execute/Enforce Decision dated September 4, 1992 of the Supreme Court) 19 filed by herein
respondents pointing out that the Supreme Court itself had noted the current increased value of the subject properties and
that petitioner Valente, Violeta, Virginia and Maria Concepcion unjustly enriched themselves in appropriating the subject
properties worth millions then, for a measly bid price of P94,170.00, for a judgment obligation worth only P70,000.00.
3. An Urgent Motion [to direct compliance by plaintiffs (herein respondents) with Supreme Court Decision or to consider the
matter submitted without evidence on the part of plaintiffs]20 filed by therein defendants, including herein petitioner Valente,
pointing out that plaintiffs (herein respondents) have yet to comply with the RTC, Branch 67 Order commanding them to
submit (to the RTC) any evidence showing settlement of the estate of the deceased Marcelo Suarez, in order for the court to
determine the portion in the estate which belongs to Teofista. The Urgent Motion stated in paragraph 2, thus:
2. The defendants [including herein petitioner Valente] did everything possible to expedite the disposition of this case while the
plaintiffs [herein respondents] did everything possible to DELAY the disposition of the same obviously because the plaintiffs
[herein respondents] are in full possession and enjoyment of the property in dispute. In its decision of September 4, 1992, the
SUPREME COURT nullified TWO final and executory DECISIONS of the Court of Appeals in an unprecedented action. In said
decision, the Supreme Court ordered the plaintiffs [herein respondents] to establish with evidence their personality as heirs of
Marcelo Suarez, and after being able to do so, to adduce evidence that would determine what portion belongs to plaintiffs
hence the above matters need be litigated upon before the RTC can "annul the sale with regard to said portion" (belonging to
the plaintiffs alleged heirs).
On these incidents, the records reveal the following Orders issued by the different branches of the RTC:
1. Order dated March 17, 1995, issued by Presiding Judge Rodrigo B. Lorenzo of Branch 266, Pasig City, admitting herein
respondents' Supplemental Complaint.21
2. Order dated January 22, 1996, issued by Judge Apolinario B. Santos resolving: (a) herein respondents' Manifestation and
Motion (to execute/enforce Decision dated September 4, 1992 of the Supreme Court), and (b) therein defendants' (including
herein petitioner Valente's) Request for Answer to Written Interrogatories.22 The RTC, Branch 67, resolved the incidents, thus:
From the foregoing uncontroverted facts, this Court is convinced beyond a shadow of doubt that the Decision of the Supreme
Court of September 4, 1992, being the final arbiter in any judicial dispute, should be implemented for the following reasons:
xxxx
On the request for Answers to Written Interrogatories filed by the defendants, it is obvious that at this stage of the proceedings
where the Supreme Court had already pronounced the undisputed facts, which binds this court, the answer sought to be
elicited through written interrogatories, therefore, are entirely irrelevant, aside from having been filed way out of time.
WHEREFORE, premises considered, this court, implements the decision of the Supreme Court dated September 4, 1992 which
mandates that:

25
"xxx and Civil Case No. 51203 is reinstated only to determine that portion which belongs to petitioner and to annul the sale
with regard to said portion."
In order to enforce such mandate of the Supreme Court, this court orders that:
a. The auction sale of the five (5) parcels of land and all prior and subsequent proceedings in relation thereto are declared null
and void.
b. Transfer Certificate of Title No. 6509 in the name of defendant Valente Raymundo is also declared null and void, and the
Register of Deeds of Rizal, Pasig City, is ordered to issue a new one in the name of the deceased Marcelo Suarez or to reinstate
Transfer Certificate of Title No. 30680 in the name of Marcelo Suarez.
c. Teofista Suarez is ordered to reimburse the amount of P94,170.00, plus legal interest from the date of issuance of this order,
and failing which, the portion of the estate of Marcelo Suarez belonging to the surviving spouse, Teofista Suarez, may be levied
on execution.
d. [Herein respondents], including Teofista Suarez, are hereby ordered to submit to this court any evidence showing settlement
of the estate of the deceased, Marcelo Suarez, in order for this court to determine the portion in the estate which belongs to
Teofista Suarez.
Therein defendants, including petitioner Valente, filed a Motion for Reconsideration which the trial court denied on May 29,
1996.
3. Order dated September 10, 1996, issued by Judge Santos denying the appeal interposed by petitioner Valente from the
January 22, 1996 and May 29, 1996 Orders, ruling that these are interlocutory orders, and, therefore, not appealable. 23
4. Order dated April 8, 1999, issued by Pairing Judge Santiago Estrella which declared, thus:
Considering that counsel for the plaintiffs does not have the birth certificates of the heirs of the plaintiff to prove their
affiliation with the deceased which is one of the matters written in the decision of the higher court which must be complied
with, and in order for counsel for the plaintiffs [herein respondents] to have the opportunity to complete all documentary
evidence and in view of abbreviating the proceedings and as prayed for, today's scheduled pre-trial is re-set for the last time to
May 19, 1999 at 8:30 a.m.
In this connection, counsel for plaintiffs [herein respondents] is advised to secure all the documentary evidence she needs
material to this case which will expedite the disposition of this case.24
This last Order and therein defendants' Urgent Motion spawned another contentious issue between the parties. In this
connection, Judge Estrella issued an Order25 requiring the parties to file their respective position papers due to the "divergent
views on the nature of the hearing that should be conducted in compliance with" our decision in Suarez. Both parties duly filed
their position papers, with herein respondents attaching thereto a copy of the Extrajudicial Settlement of Estate executed by
the heirs of Marcelo Suarez in 1957.
In resolving this latest crossfire between the parties, the RTC, Branch 67, issued an Order dated January 11, 2000, which reads,
in part:
This Court is of the view that the Honorable Supreme Court is not a trier of facts, precisely it directed that the records of this
case be remanded to the Regional Trial Court for further proceedings.
xxxx
It is a matter of record that there was no trial on the merits completed in the Regional Trial Court. xxx The Supreme Court
reversed the judgment of the Court of Appeals and ordered the reinstatement of Civil Case No. 51203. Naturally, there was no
trial on the merits before this Court that allowed the parties to adduce evidence to establish their respective claims in the
plaintiffs' [herein respondents] complaint and in the defendants' [including petitioner Valente] counter-claim, respectively. It is
in this context that the Honorable Supreme Court reinstated the "action [of herein respondents] to annul the auction sale to
protect their [herein respondents] own interest.
While this Court is of the view that trial on the merits is necessary for the purpose of giving the plaintiffs [herein respondents] a
chance to adduce evidence to sustain their complaint and the defendants [including petitioner Valente] to prove their defense,
consistent with the directive of the Honorable Supreme Court (in its Decision promulgated on September 4, 1992), the Court is,
however, confronted with the very recent decision of the Honorable Supreme Court in "Heirs of Guido Yaptinchay, et al. vs. Del
Rosario, et al., G.R. No. 124320, March 2, 1999" where it held that -
The declaration of heirship must be made in an administration proceeding, and not in an independent civil action. This doctrine
was reiterated in Solve vs. Court of Appeals (182 SCRA 119, 128). The trial court cannot make a declaration of heirship in the

26
civil action for the reason that such a declaration can only be made in a special proceeding. Under Section 3, Rule 1 of the 1997
Revised Rules of Court, a civil action is defined as "one by which a party sues another for the enforcement or protection of a
right, or the prevention or redress of a wrong" while a special proceeding is "a remedy by which a party seeks to establish a
status, a right, or a particular fact." It is then decisively clear that the declaration of heirship can be made only in a special
proceeding inasmuch as the petitioners here are seeking the establishment of a status or right.
In as much as the leading case on the matter is that of "Heirs of Yaptinchay v. Del Rosario, G.R. No. 124320, March 2, 1999" it is
left with no choice but to obey said latter doctrine.
WHEREFORE, the foregoing premises considered, this Court holds that in the light of the doctrine laid down in the case of "Heirs
of Yaptinchay vs. Del Rosario, G.R. No. 124320, March 2, 1999" this case is dismissed without prejudice to the plaintiffs' [herein
respondents'] filing a special proceeding consistent with said latest ruling.26
Herein respondents moved for reconsideration thereof which, however, was denied by the RTC, Branch 67 on March 14,
2000.27
Consequently, herein respondents filed a petition for certiorari before the CA alleging grave abuse of discretion in the trial
court's order dismissing Civil Case No. 51203 without prejudice. All the defendants in the trial court were impleaded as private
respondents in the petition. Yet, curiously, only petitioner Valente filed a Comment thereto. The appellate court granted the
petition, recalled and set aside RTC, Branch 67's Orders dated January 11, 2000 and March 14, 2000, and reinstated Judge
Santos' Orders dated May 29, 1996 and September 6, 1996. It disposed of the petition, thus:
We agree with [herein respondents].
On September 4, 1992, the Supreme Court (G.R. No. 94918) reversed the decision of the Court of Appeals and mandates that
Civil Case No. 51203 be reinstated in order to determine the portion in the estate which belongs to Teofista Suarez. The sale of
the parcels of land was declared null and void. Necessarily, the title (TCT No. 5809) in the name of respondents was also
declared null and void. xxx
xxxx
Hon. Apolinario Santos of Br. 67, Regional Trial Court, Pasig City, on January 22, 1996 and on motion of [herein respondents],
issued an order to execute/enforce the decision of the Supreme Court xxx.
xxxx
[Petitioner Valente, Violeta, Virginia and Maria Concepcion] filed a notice of appeal on the order of Judge Santos. The appeal,
on motion of [herein respondents] was denied on September 10, 1996. Obviously, the decision of the Supreme Court had
become final and executory. Likewise, both orders of Judge Santos dated May 29, 1996 denying the motion for reconsideration
and the denial of the notice of appeal dated September 6, 1996 had also become final and executory.
The denial of petitioner Valente's Motion for Reconsideration prompted the filing of this present petition for certiorari.
Petitioner Valente posits that the appellate court committed grave abuse of discretion in recalling and setting aside the Orders
of Judge Estrella and reinstating those of Judge Santos because:
1. The CA ruled that the Orders dated May 29, 1996 and September 6, 1996 issued by Judge Santos were final and executory,
and yet the latter did not allow an appeal to be taken therefrom ratiocinating that the questioned orders were interlocutory,
and therefore, not appealable; and
2. The CA ignored and violated the Supreme Court's ruling in Heirs of Yaptinchay v. Del Rosario 28 which held that a declaration
of heirship must be made in a special proceeding and not in a civil action.
We find the petition bereft of merit.
At the outset, we note that petitioner Valente incorrectly filed a petition for certiorari to appeal the CA decision. Petitioner
should have filed a petition for review on certiorari under Rule 45 of the Rules of Court. Simply imputing in a petition that the
decision sought to be reviewed is tainted with grave abuse of discretion does not magically transform a petition into a special
civil action for certiorari. The CA decision disposed of the merits of a special civil action, an original petition, filed thereat by
herein respondents. That disposition is a final and executory order, appealable to, and may be questioned before, this Court by
persons aggrieved thereby, such as petitioner Valente, via Rule 45.
On this score alone, the petition should have been dismissed outright. However, we have disregarded this procedural flaw and
now resolve this case based on the merits or lack thereof.

27
Petitioner asseverates that the assailed CA ruling "is unfair and it amounts to a trickery to prevent an appeal against a final
order by claiming that the appealed order is merely interlocutory and later maintain that the same order has become final after
declaring it to be interlocutory."
We reject petitioner's paltry contention. Petitioner apparently does not comprehend the distinction between an interlocutory
order which is final and executory, and a final order which disposes of the controversy or case; much less, understand the
available remedies therefrom.
We have defined an interlocutory order as referring to something between the commencement and the end of the suit which
decides some point or matter but it is not the final decision on the whole controversy.29 It does not terminate or finally dismiss
or finally dispose of the case, but leaves something to be done by the court before the case is finally decided on the merits.30
Upon the other hand, a final order is one which leaves to the court nothing more to do to resolve the case. 31
On more than one occasion, we laid down the test to ascertain whether an order is interlocutory or final i.e., "Does it leave
something to be done in the trial court with respect to the merits of the case?" If it does, it is interlocutory; if it does not, it is
final. The key test to what is interlocutory is when there is something more to be done on the merits of the case. 32 The Orders
dated May 29, 1996 and September 6, 1996 issued by Judge Santos are interlocutory, and therefore, not appealable, as they
leave something more to be done on the merits of the case. In fact, in paragraph (d) of Judge Santos' Order dated May 29,
1996, herein respondents were directed to submit evidence showing settlement of the estate of the deceased Marcelo Sr.
Contrary to petitioner Valente's stance, there is no trickery or chicanery in the CA's distinction between an interlocutory and a
final order. Indeed, as ruled by the CA, the RTC Order denying petitioner Valente's Notice of Appeal attained finality when he
failed to file a petition for certiorari under Rule 65 of the Rules of Court.
We cannot overemphasize the rule that the correct identification of the nature of an assailed order determines the remedies
available to an aggrieved party. The old Rules of Court in Section 2, Rule 41 reads, thus:
SEC. 2. Judgments or orders subject to appeal.-Only final judgments or orders shall be subject to appeal. No interlocutory or
incidental judgment or order shall stay the progress of an action, nor shall it be the subject of appeal until final judgment or
order is rendered for one party or the other.
xxxx
With the advent of the 1997 Rules of Civil Procedure, Section 1, Rule 41 now provides for the appropriate remedy to be taken
from an interlocutory order, thus:
SECTION 1. Subject of appeal. - An appeal may be taken from a judgment or final order that completely disposes of the case, or
of a particular matter therein when declared by these Rules to be appealable.
No appeal may be taken from:
xxx
(c) An interlocutory order;
xxx
In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate
special civil action under Rule 65.
Clearly, the denial of therein defendants' (including petitioner Valente's) appeal from the Orders dated May 29, 1996 and
September 6, 1996 was in order. Thus, the CA decision affirming the RTC's denial was correct.
Further, on this crucial distinction as applied to this case, petitioner Valente filed a petition for certiorari from the CA decision in
CA-G.R. SP No. 58090, which is not an interlocutory order. It is a final order which completely disposed of the merits of the case
with nothing more left to be done therein. The correct and available remedy available to petitioner Valente was, as previously
discussed, a petition for review on certiorari under Rule 45 of the Rules of Court.
In fine, petitioner Valente erroneously sought relief through reversed remedies. He tried to appeal the interlocutory orders of
the RTC which are unappealable. Thus, the RTC properly denied his Notice of Appeal, and the CA correctly upheld the RTC. He
should have filed a petition for certiorari; under Rule 65. On the other hand, from the final order of the CA, he comes before
this Court on a petition for certiorari under Rule 65, when the proper remedy is an appeal by certiorari under Rule 45.
In the recent case of Jan-Dec Construction Corporation v. Court of Appeals33 we ruled in this wise:
As a rule, the remedy from a judgment or final order of the CA is appeal via petition for review under Rule 45 of the Rules.

28
Under Rule 45, decisions, final orders or resolutions of the CA in any case, i.e., regardless of the nature of the action or
proceedings involved, may be appealed to the Court by filing a petition for review, which would be but a continuation of the
appellate process over the original case. It seeks to correct errors of judgment committed by the court, tribunal, or officer. In
contrast, a special civil action for certiorari under Rule 65 is an independent action based on the specific grounds therein
provided and proper only if there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law. It is an
extraordinary process for the correction of errors of jurisdiction and cannot be availed of as a substitute for the lost remedy of
an ordinary appeal.
Independently of this procedural infirmity, even on the merits of the case, the petition does not fare otherwise. It must be
dismissed for lack of merit.
Petitioner Valente insists that, following our ruling in Heirs of Yaptinchay v. Del Rosario,34 herein respondents must first be
declared heirs of Marcelo Sr. before they can file an action to annul the judicial sale of what is, undisputedly, conjugal property
of Teofista and Marcelo Sr.
We disagree. Our ruling in Heirs of Yaptinchay is not applicable.
Herein respondents' status as legitimate children of Marcelo Sr. and Teofista ― and thus, Marcelo Sr.'s heirs ― has been firmly
established, and confirmed by this Court in Suarez v. Court of Appeals.35 True, this Court is not a trier of facts,36 but as the final
arbiter of disputes,37 we found and so ruled that herein respondents are children, and heirs of their deceased father, Marcelo
Sr. This having been settled, it should no longer have been a litigated issue when we ordered a remand to the lower court. In
short, petitioner Valente's, Violeta's, Virginia's, and Maria Concepcion's representation in the RTC that our ruling in Suarez
required herein respondents to present evidence of their affiliation with the deceased, Marcelo Sr., is wrong.
As was set forth in the dispositive portion of Suarez, "Civil Case No. 51203 is reinstated only to determine that portion which
belongs to [herein respondents] and to annul the sale with regard to said portion." There is clearly no intimation in our decision
for the RTC to have to determine an already settled issue i.e., herein respondents' status as heirs of Marcelo Sr.
Moreover, petitioner Valente cannot assail, directly or indirectly, the status of herein respondents as legitimate children of
Marcelo Sr. and Teofista, and likewise demand that herein respondents first prove their filiation to Marcelo Sr. The following
records bear out Marcelo, Sr.'s and Teofista's paternity of herein respondents, and the latter's status as legitimate children:
1. The CA decision in CA-G.R. SP Nos. 10646 to 10649 where Teofista, along with herein respondents, questioned the RTC,
Branch 151's Orders dated October 10, 1984 and October 14, 1986. Although the CA ruled against Teofista and herein
respondents, it explicitly recognized the latter's status as legitimate children of Teofista and Marcelo Sr.; and38
2. The CA decision in CA-G.R. SP No. 20320 which incorrectly ruled that herein respondents were, as children of Teofista, merely
successors-in-interest of the latter to the property and by virtue thereof, bound by the judgment in Civil Case Nos. 21376 to
21379 consistent with the doctrine of res judicata.39 We subsequently reversed this ruling on the wrong application of res
judicata in the conclusive case of Suarez. We retained and affirmed, however, the CA's factual finding of herein respondents'
status as heirs of Marcelo Sr. We categorically held therein that "the proprietary interest of [herein respondents] in the levied
and auctioned [properties] is different from and adverse to that of [Teofista]. [Herein respondents] became co-owners of the
property not because of [Teofista] but through their own right as children of their deceased father [, Marcelo Sr.]."
Clearly, herein respondents' long possessed status of legitimate children of Marcelo Sr. and Teofista cannot be indirectly or
directly attacked by petitioner Valente in an action to annul a judicial sale.
Articles 262,40 263,41 265 and 26642 of the Civil Code, the applicable law at the time of Marcelo's death, support the foregoing
conclusion, to wit:
Art. 262. The heirs of the husband may impugn the legitimacy of the child only in the following cases:
(1) If the husband should die before the expiration of the period fixed for bringing his action;
(2) If the husband should die after the filing of the complaint, without having desisted from the same;
(3) If the child was born after the death of the husband.
Art. 263. The action to impugn the legitimacy of the child shall be brought within one year from the recording of birth in the
Civil Register, if the husband should be in the same place, or in a proper case, any of his heirs.
If he or his heirs are absent, the period shall be eighteen months if they should reside in the Philippines; and two years if
abroad. If the birth of the child has been concealed, the term shall be counted from the discovery of the fraud.
Art. 265. The filiation of legitimate children is proved by the record of birth appearing in the Civil Register, or by an authentic
document or a final judgment.

29
Art. 266. In the absence of the titles indicated in the preceding article, the filiation shall be proved by the continuous possession
of status of a legitimate child.
In Heirs of Yaptinchay, the complaint for annulment and/or declaration of nullity of certain TCT's was dismissed for failure of
the petitioners to demonstrate "any proof or even a semblance of it" that they had been declared the legal heirs of the
deceased couple, the spouses Yaptinchay. In stark contrast, the records of this case reveal a document, an Extrajudicial
Settlement of Marcelo Sr.'s estate, which explicitly recognizes herein respondents as Marcelo Sr.'s legitimate children and heirs.
The same document settles and partitions the estate of Marcelo Sr. specifying Teofista's paraphernal properties, and separates
the properties she owns in common with her children, herein respondents. Plainly, there is no need to re-declare herein
respondents as heirs of Marcelo Sr., and prolong this case interminably.
Petitioner Valente, along with Violeta, Virginia and Maria Concepcion, became owners of the subject properties only by virtue
of an execution sale to recover Teofista's judgment obligation. This judgment obligation is solely Teofista's, and payment
therefor cannot be made through an execution sale of properties not absolutely owned by her. These properties were evidently
conjugal properties and were, in fact, even titled in the name of Marcelo, Sr. married to Teofista. Thus, upon Marcelo Sr.'s
death, by virtue of compulsory succession, Marcelo Sr.'s share in the conjugal partnership was transmitted by operation of law
to his compulsory heirs.
Compulsory succession is a distinct kind of succession, albeit not categorized as such in Article 77843 of the Civil Code. It
reserves a portion of the net estate of the decedent in favor of certain heirs, or group of heirs, or combination of heirs,
prevailing over all kinds of succession.44 The portion that is so reserved is the legitime. Article 886 of the Civil Code defines
legitime as "that part of the testator's property which he cannot dispose of because the law has reserved it for certain heirs
who are, therefore, called compulsory heirs." Herein respondents are primary compulsory heirs,45 excluding secondary
compulsory heirs,46 and preferred over concurring compulsory heirs in the distribution of the decedent's estate. 47
Even without delving into the Extrajudicial Settlement of Marcelo Sr.'s estate in 1957, it must be stressed that herein
respondents' rights to the succession vested from the moment of their father's death.48 Herein respondents' ownership of the
subject properties is no longer inchoate; it became absolute upon Marcelo's death, although their respective shares therein
remained pro indiviso. Ineluctably, at the time the subject properties were sold on execution sale to answer for Teofista's
judgment obligation, the inclusion of herein respondents' share therein was null and void.
In fine, Teofista's ownership over the subject properties is not absolute. Significantly, petitioner Valente does not even attempt
to dispute the conjugal nature of the subject properties. Since Teofista owns only a portion of the subject properties, only that
portion could have been, and was actually, levied upon and sold on auction by the provincial sheriff of Rizal. Thus, a separate
declaration of heirship by herein respondents is not necessary to annul the judicial sale of their share in the subject properties.
We note the recent case of Portugal v. Portugal-Beltran,49 where we scrutinized our rulings in Heirs of Yaptinchay and the cited
cases of Litam v. Rivera50 and Solivio v. Court of Appeals,51 and Guilas v. CFI Judge of Pampanga52 cited in Solivio. We ruled thus:
The common doctrine in Litam, Solivio and Guilas in which the adverse parties are putative heirs to the estate of a decedent or
parties to the special proceedings for its settlement is that if the special proceedings are pending, or if there are no special
proceedings filed but there is, under the circumstances of the case, a need to file one, then the determination of, among other
issues, heirship should be raised and settled in said special proceedings. Where special proceedings had been instituted but had
been finally closed and terminated, however, or if a putative heirs has lost the right to have himself declared in the special
proceedings as co-heir and he can no longer ask for its re-opening, then an ordinary civil action can be filed for his declaration
as heir in order to bring about the annulment of the partition or distribution or adjudication of a property or properties
belonging to the estate of the deceased.
In the case at bar, respondent, believing rightly or wrongly that she was the sole heir to Portugal's estate, executed on February
15, 1988 the questioned Affidavit of Adjudication under the second sentence of Rule 74, Section of the Revised Rules of Court.
Said rule is an exception to the general rule that when a person dies leaving property, it should be judicially administered and
the competent court should appoint a qualified administrator, in the order established in Sec. 6, Rule 78 in case the deceased
left no will, or in case he did, he failed to name an executor therein.
xxx
It appearing, however, that in the present case the only property of the intestate estate of Portugal is the Caloocan parcel of
land, to still subject it, under the circumstances of the case, to a special proceeding which could be long, hence, not
expeditious, just to establish the status of petitioners as heirs is not only impractical; it is burdensome to the estate with the
costs and expenses of an administration proceedings. And it is superfluous in light of the fact that the parties to the civil case-
subject of the present case, could and had already in fact presented evidence before the trial court which assumed jurisdiction
over the case upon the issues it defined during pre-trial.

30
In fine, under the circumstances of the present case, there being no compelling reason to still subject Portugal's estate to
administration proceedings since a determination of petitioners' status as heirs could be achieved in the civil case filed by
petitioners xxx.53
All told, under the circumstances, in addition to the already settled status of herein respondents as heirs of Marcelo Sr., there is
no need to dismiss Civil Case No. 51203 and require herein respondents to institute a separate special proceeding for a
declaration of their heirship.
WHEREFORE, premises considered, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. SP No. 58090 is
AFFIRMED. The Orders dated May 29, 1996 and September 6, 1996 issued by Judge Santos are REINSTATED. Costs against the
petitioner.
SO ORDERED.

31
[G.R. No. 172248. September 17, 2008.]
DEVELOPMENT BANK OF THE PHILIPPINES, petitioner, vs. ELLA GAGARANI, ISAGANI, ADRIAN, NATHANIEL, NIEVA,
JONATHAN, DIONESIO, FLORENCE and JEREMIAS, all surnamed ASOK, respondents.
RESOLUTION
CORONA, J p:
This is a petition for review on certiorari 1 of the December 14, 2005 decision 2 and March 28, 2006 resolution 3 of the Court of
Appeals (CA) in CA-G.R. CV No. 64259. aAHDIc
The spouses Dionesio and Matea S. Asok owned several parcels of land. Upon their death on September 14, 1973 and February
22, 1982, respectively, their eleven children inherited the properties. One of the lands inherited was a lot covered by Original
Certificate of Title (OCT) No. P-4272, a free patent issued on July 19, 1967, located at Pagawan, Manticao, Misamis Oriental with
an area of 39,552 sq. m. 4
Pursuant to the extrajudicial settlement of the estate with quitclaim executed by the spouses' children, the subject property
was inherited by Denison Asok (Asok). As a result, OCT No. P-4272 was cancelled and Transfer Certificate of Title (TCT) No. T-
9626 was issued and registered in his name on November 17, 1987. 5
On August 31, 1989, Asok and his wife, respondent Ella Gagarani Asok, borrowed P100,000 from petitioner Development Bank
of the Philippines, a government financial institution created and operating under EO 81, 6 as amended by RA 8523. They
mortgaged the subject lot as collateral to guarantee payment of the loan. On due date, however, they failed to pay the loan and
the mortgage was extrajudicially foreclosed pursuant to Act 3135. 7 Petitioner emerged as the highest bidder with a bid of
P163,297. 8
On November 28, 1991, a certificate of sale was issued in favor of petitioner. This was registered on December 24, 1992. 9 On
March 25, 1998, petitioner's ownership over the property was consolidated and TCT No. T-27172 was issued in its name. 10
Meanwhile, Asok died on October 24, 1993 and was succeeded by his surviving spouse and children (respondents). 11
On May 15, 1998, respondents filed a complaint for repurchase against petitioner in the Regional Trial Court (RTC) of Initao,
Misamis Oriental, Branch 44, docketed as Civil Case No. 98-68. On July 3, 1998, they filed an amended complaint on learning
that TCT No. T-9626 had been cancelled by TCT No. T-27172 issued in the name of petitioner. They invoked their right to
repurchase the property under Sec. 119 of CA 141, as amended: 12
Sec. 119. Every conveyance of land acquired under the free patent or homestead provisions, when proper, shall be subject to
repurchase by the applicant, his widow, or legal heirs, within a period of five years from date of the conveyance.
In a decision dated January 7, 1999, the RTC dismissed the complaint. Reconsideration was denied on February 3, 1999. 13 It
ruled that the one-year period for redemption should be reckoned from the date of sale, i.e., November 28, 1991. Then the
five-year period provided under Sec. 119 of CA 141 should be counted from the expiration of the redemption period, i.e.,
November 28, 1992. Therefore, respondents had until November 28, 1997 to exercise their right to repurchase. However, the
complaint was filed on May 15, 1998 which was beyond the prescribed period. 14
Aggrieved, respondents appealed to the CA. In a decision dated December 14, 2005, the CA reversed and set aside the RTC
decision. Reconsideration was denied in a resolution dated March 28, 2006. It held that the period of redemption started from
the date of registration of the certificate of sale, i.e., December 24, 1992, and not from the date of sale. Thus, respondents had
until December 24, 1998 to repurchase the property and the complaint was seasonably filed. 15 ESaITA
Hence this petition.
Petitioner raises the following issues: (1) whether Sec. 119 of CA 141 is applicable in this case; (2) whether respondents are the
legal heirs of the patentees and (3) whether the right to repurchase has already prescribed.
The petition lacks merit.
Petitioner contends that respondents cannot claim the right under Sec. 119 which covers homesteads and free patents because
the free patent issued to Asok's parents had already been cancelled and a new TCT had in fact been issued to him. Thus, the
property mortgaged to it was no longer covered by a free patent but by a TCT. 16
This contention deserves scant consideration.
The plain intent of Sec. 119 is to give the homesteader or patentee every chance to preserve and keep in the family the land
that the State has gratuitously given him as a reward for his labor in cleaning, developing and cultivating it. 17 Hence, the fact
that the land had been inherited by the patentees' son (and a new title in his name issued) does not bring it outside the

32
purview of Sec. 119. In fact, the policy behind the law is fulfilled because the land remains in the family of the patentee. As we
explained in Ferrer v. Mangente: 18
The applicant for a homestead is to be given all the inducement that the law offers and is entitled to its full protection. Its
blessings, however, do not stop with him. This is particularly so in this case as the appellee is the son of the deceased. There is
no question then as to his status of being a legal heir. The policy of the law is not difficult to understand. The incentive for a
pioneer to venture into developing virgin land becomes more attractive if he is assured that his effort will not go for naught
should perchance his life be cut short. This is merely a recognition of how closely bound parents and children are in a Filipino
family. Logic, the sense of fitness and of right, as well as pragmatic considerations thus call for continued adherence to the
policy that not the individual applicant alone but those so closely related to him as are entitled to legal succession may take full
advantage of the benefits the law confers. 19
Having ruled that Sec. 119 is applicable to this case, we now go to the next issue: are respondents the "legal heirs"
contemplated in the provision?
Petitioner argues that respondents are not the legal heirs of the patentees because respondents are merely their daughter-in-
law and grandchildren.
We disagree. In line with the rationale behind Sec. 119, we reject a restricted definition of legal heirs. It is used in a broad sense
and the law makes no distinctions. 20 In Madarcos v. de la Merced, 21 we held that:
The term "legal heirs" is used in Section 119 in a generic sense. It is broad enough to cover any person who is called to the
succession either by provision of a will or by operation of law. Thus, legal heirs include both testate and intestate heirs
depending upon whether succession is by the will of the testator or by law. Legal heirs are not necessarily compulsory heirs but
they may be so if the law reserves a legitime for them. EHCcIT
xxx xxx xxx
Verily, petitioners are legal heirs. Having been decreed under the rules on intestacy as entitled to succeed to the estate of the
Catain spouses due to the absence of compulsory heirs, they now step into the shoes of the decedents. They should be
considered as among the legal heirs contemplated by Section 119 as entitled to redeem the homestead.
The above interpretation of "legal heirs" as contra-distinguished from the restrictive construction given it by the lower court is
more in keeping with the salutary purpose behind the enactment of Section 119 and the jurisprudence laid down on the
matter. Indeed, it is not far-fetched to arrive at a more liberal conclusion if the section is analyzed in accordance with its
purpose . . . 22
Respondents inherited the property from Asok, their husband and father, who in turn inherited it from his parents. Respondent
Ella Gagarani Asok, as daughter-in-law of the patentees, can be considered as among the legal heirs who can repurchase the
land in accordance with Salenillas v. CA. 23 In that case, we allowed the daughter and son-in-law of the patentees to repurchase
the property because this would be "more in keeping with the spirit of the law. We have time and again said that between two
statutory interpretations, that which better serves the purpose of the law should prevail". 24 Furthermore, the law must be
liberally construed in order to carry out its purpose. 25
Finally, petitioner asserts that even if respondents could be considered as being entitled to the right under Sec. 119, this had
already prescribed because the period should be counted from the date of conveyance which means the date of sale and not
the date of registration of the certificate of sale.
This argument lacks merit.
This is far from a novel issue. It was already resolved in Rural Bank of Davao City, Inc. v. CA: 26
Thus, the rules on redemption in the case of an extrajudicial foreclosure of land acquired under free patent or homestead
statutes may be summarized as follows: . . . If the land is mortgaged to parties other than rural banks, the mortgagor may
redeem the property within one (1) year from the registration of the certificate of sale pursuant to Act No. 3135. If he fails to
do so, he or his heirs may repurchase the property within five (5) years from the expiration of the redemption period also
pursuant to Section 119 of the Public Land Act. 27 HTcADC
There is no dispute that in extrajudicial foreclosures under Act 3135, the debtor or his or her successors-in-interest may redeem
the property within one year. This redemption period should be reckoned from the date of registration of the certificate of sale.
28 The five-year period fixed in Sec. 119 begins to run from the expiration of the one-year redemption period. 29 Here, the
certificate of sale was registered on December 24, 1992 and the one-year redemption period expired on December 24, 1993.
Reckoned from that day, respondents had a five-year period, or until December 24, 1998, to exercise their right to repurchase
under Sec. 119 of CA 141. Consequently, the CA was correct in holding that the complaint filed on May 15, 1998 was on time.

33
WHEREFORE, the petition is hereby DENIED. Petitioner Development Bank of the Philippines is ordered to execute a deed of
reconveyance in favor of respondents upon payment by the latter of the redemption price. aETADI
No costs.
SO ORDERED.

34
G.R. No. 145545 June 30, 2008
PAZ SAMANIEGO-CELADA, petitioner,
vs.
LUCIA D. ABENA, respondent.
DECISION
QUISUMBING, J.:
This is a petition for review under Rule 45 of the 1997 Rules of Civil Procedure seeking to reverse the Decision 1 dated October
13, 2000 of the Court of Appeals in CA-G.R. CV No. 41756, which affirmed the Decision2 dated March 2, 1993 of the Regional
Trial Court (RTC), Branch 66, Makati City. The RTC had declared the last will and testament of Margarita S. Mayores probated
and designated respondent Lucia D. Abena as the executor of her will. It also ordered the issuance of letters testamentary in
favor of respondent.
The facts are as follows:
Petitioner Paz Samaniego-Celada was the first cousin of decedent Margarita S. Mayores (Margarita) while respondent was the
decedent’s lifelong companion since 1929.
On April 27, 1987, Margarita died single and without any ascending nor descending heirs as her parents, grandparents and
siblings predeceased her. She was survived by her first cousins Catalina Samaniego-Bombay, Manuelita Samaniego Sajonia,
Feliza Samaniego, and petitioner.
Before her death, Margarita executed a Last Will and Testament3 on February 2, 1987 where she bequeathed one-half of her
undivided share of a real property located at Singalong Manila, consisting of 209.8 square meters, and covered by Transfer
Certificate of Title (TCT) No. 1343 to respondent, Norma A. Pahingalo, and Florentino M. Abena in equal shares or one-third
portion each. She likewise bequeathed one-half of her undivided share of a real property located at San Antonio Village,
Makati, consisting of 225 square meters, and covered by TCT No. 68920 to respondent, Isabelo M. Abena, and Amanda M.
Abena in equal shares or one-third portion each. Margarita also left all her personal properties to respondent whom she
likewise designated as sole executor of her will.
On August 11, 1987, petitioner filed a petition for letters of administration of the estate of Margarita before the RTC of Makati.
The case was docketed as SP Proc. No. M-1531.
On October 27, 1987, respondent filed a petition for probate of the will of Margarita before the RTC of Makati. The case was
docketed as SP Proc. No. M-1607 and consolidated with SP Proc. No. M-1531.
On March 2, 1993, the RTC rendered a decision declaring the last will and testament of Margarita probated and respondent as
the executor of the will. The dispositive portion of the decision states:
In view of the foregoing, judgment is hereby rendered:
1) declaring the will as probated;
2) declaring Lucia Abena as the executor of the will who will serve as such without a bond as stated in paragraph VI of the
probated will;
3) ordering the issuance of letters testamentary in favor of Lucia Abena.
So ordered.4
Petitioner appealed the RTC decision to the Court of Appeals. But the Court of Appeals, in a decision dated October 13, 2000,
affirmed in toto the RTC ruling. The dispositive portion of the Court of Appeals’ decision states:
WHEREFORE, foregoing premises considered, the appeal having no merit in fact and in law, is hereby ORDERED DISMISSED and
the appealed Decision of the trial court AFFIRMED IN TOTO, with cost to oppositors-appellants.
SO ORDERED.5
Hence, the instant petition citing the following issues:
I.
WHETHER OR NOT THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN NOT INVALIDATING THE WILL SINCE IT DID
NOT CONFORM TO THE FORMALITIES REQUIRED BY LAW;
II.

35
WHETHER OR NOT THE COURT OF APPEALS COMMITTED ERROR IN NOT INVALIDATING THE WILL BECAUSE IT WAS PROCURED
THROUGH UNDUE INFLUENCE AND PRESSURE[;] AND
III.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN NOT DECLARING PETITIONER, HER SIBLINGS AND COUSIN AS
THE LEGAL HEIRS OF MARGARITA S. MAYORES AND IN NOT ISSUING LETTERS OF ADMINISTRATION TO HER. 6
Briefly stated, the issues are (1) whether the Court of Appeals erred in not declaring the will invalid for failure to comply with
the formalities required by law, (2) whether said court erred in not declaring the will invalid because it was procured through
undue influence and pressure, and (3) whether it erred in not declaring petitioner and her siblings as the legal heirs of
Margarita, and in not issuing letters of administration to petitioner.
Petitioner, in her Memorandum,7 argues that Margarita’s will failed to comply with the formalities required under Article 8058
of the Civil Code because the will was not signed by the testator in the presence of the instrumental witnesses and in the
presence of one another. She also argues that the signatures of the testator on pages A, B, and C of the will are not the same or
similar, indicating that they were not signed on the same day. She further argues that the will was procured through undue
influence and pressure because at the time of execution of the will, Margarita was weak, sickly, jobless and entirely dependent
upon respondent and her nephews for support, and these alleged handicaps allegedly affected her freedom and willpower to
decide on her own. Petitioner thus concludes that Margarita’s total dependence on respondent and her nephews compelled
her to sign the will. Petitioner likewise argues that the Court of Appeals should have declared her and her siblings as the legal
heirs of Margarita since they are her only living collateral relatives in accordance with Articles 10099 and 101010 of the Civil
Code.
Respondent, for her part, argues in her Memorandum11 that the petition for review raises questions of fact, not of law and as a
rule, findings of fact of the Court of Appeals are final and conclusive and cannot be reviewed on appeal to the Supreme Court.
She also points out that although the Court of Appeals at the outset opined there was no compelling reason to review the
petition, the Court of Appeals proceeded to tackle the assigned errors and rule that the will was validly executed, sustaining the
findings of the trial court that the formalities required by law were duly complied with. The Court of Appeals also concurred
with the findings of the trial court that the testator, Margarita, was of sound mind when she executed the will.
After careful consideration of the parties’ contentions, we rule in favor of respondent.
We find that the issues raised by petitioner concern pure questions of fact, which may not be the subject of a petition for
review on certiorari under Rule 45 of the Rules of Civil Procedure.
The issues that petitioner is raising now i.e., whether or not the will was signed by the testator in the presence of the witnesses
and of one another, whether or not the signatures of the witnesses on the pages of the will were signed on the same day, and
whether or not undue influence was exerted upon the testator which compelled her to sign the will, are all questions of fact.
This Court does not resolve questions of fact in a petition for review under Rule 45 of the 1997 Rules of Civil Procedure. Section
112 of Rule 45 limits this Court’s review to questions of law only.
Well-settled is the rule that the Supreme Court is not a trier of facts. When supported by substantial evidence, the findings of
fact of the Court of Appeals are conclusive and binding on the parties and are not reviewable by this Court, unless the case falls
under any of the following recognized exceptions:
(1) When the conclusion is a finding grounded entirely on speculation, surmises and conjectures;
(2) When the inference made is manifestly mistaken, absurd or impossible;
(3) Where there is a grave abuse of discretion;
(4) When the judgment is based on a misapprehension of facts;
(5) When the findings of fact are conflicting;
(6) When the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the
admissions of both appellant and appellee;
(7) When the findings are contrary to those of the trial court;
(8) When the findings of fact are conclusions without citation of specific evidence on which they are based;
(9) When the facts set forth in the petition as well as in the petitioners’ main and reply briefs are not disputed by the
respondents; and

36
(10) When the findings of fact of the Court of Appeals are premised on the supposed absence of evidence and contradicted by
the evidence on record.13
We find that this case does not involve any of the abovementioned exceptions.
Nonetheless, a review of the findings of the RTC as upheld by the Court of Appeals, reveal that petitioner’s arguments lack
basis. The RTC correctly held:
With [regard] to the contention of the oppositors [Paz Samaniego-Celada, et al.] that the testator [Margarita Mayores] was not
mentally capable of making a will at the time of the execution thereof, the same is without merit. The oppositors failed to
establish, by preponderance of evidence, said allegation and contradict the presumption that the testator was of sound mind
(See Article 800 of the Civil Code). In fact, witness for the oppositors, Dr. Ramon Lamberte, who, in some occasions, attended to
the testator months before her death, testified that Margarita Mayores could engage in a normal conversation and he even
stated that the illness of the testator does not warrant hospitalization…. Not one of the oppositor’s witnesses has mentioned
any instance that they observed act/s of the testator during her lifetime that could be construed as a manifestation of mental
incapacity. The testator may be admitted to be physically weak but it does not necessarily follow that she was not of sound
mind. [The] testimonies of contestant witnesses are pure aforethought.
Anent the contestants’ submission that the will is fatally defective for the reason that its attestation clause states that the will is
composed of three (3) pages while in truth and in fact, the will consists of two (2) pages only because the attestation is not a
part of the notarial will, the same is not accurate. While it is true that the attestation clause is not a part of the will, the court,
after examining the totality of the will, is of the considered opinion that error in the number of pages of the will as stated in the
attestation clause is not material to invalidate the subject will. It must be noted that the subject instrument is consecutively
lettered with pages A, B, and C which is a sufficient safeguard from the possibility of an omission of some of the pages. The
error must have been brought about by the honest belief that the will is the whole instrument consisting of three (3) pages
inclusive of the attestation clause and the acknowledgement. The position of the court is in consonance with the "doctrine of
liberal interpretation" enunciated in Article 809 of the Civil Code which reads:
"In the absence of bad faith, forgery or fraud, or undue [and] improper pressure and influence, defects and imperfections in
the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact
executed and attested in substantial compliance with all the requirements of Article 805."
The court also rejects the contention of the oppositors that the signatures of the testator were affixed on different occasions
based on their observation that the signature on the first page is allegedly different in size, texture and appearance as
compared with the signatures in the succeeding pages. After examination of the signatures, the court does not share the same
observation as the oppositors. The picture (Exhibit "H-3") shows that the testator was affixing her signature in the presence of
the instrumental witnesses and the notary. There is no evidence to show that the first signature was procured earlier than
February 2, 1987.
Finally, the court finds that no pressure nor undue influence was exerted on the testator to execute the subject will. In fact, the
picture reveals that the testator was in a good mood and smiling with the other witnesses while executing the subject will (See
Exhibit "H").
In fine, the court finds that the testator was mentally capable of making the will at the time of its execution, that the notarial
will presented to the court is the same notarial will that was executed and that all the formal requirements (See Article 805 of
the Civil Code) in the execution of a will have been substantially complied with in the subject notarial will.14 (Emphasis
supplied.)
Thus, we find no reason to disturb the abovementioned findings of the RTC. Since, petitioner and her siblings are not
compulsory heirs of the decedent under Article 88715 of the Civil Code and as the decedent validly disposed of her properties in
a will duly executed and probated, petitioner has no legal right to claim any part of the decedent’s estate.
WHEREFORE, the petition is DENIED. The assailed Decision dated October 13, 2000 of the Court of Appeals in CA-G.R. CV No.
41756 is AFFIRMED.
Costs against petitioner.
SO ORDERED.

37
A.C. No. 5281 February 12, 2008
MANUEL L. LEE, petitioner,
vs.
ATTY. REGINO B. TAMBAGO, respondent.
RESOLUTION
CORONA, J.:
In a letter-complaint dated April 10, 2000, complainant Manuel L. Lee charged respondent Atty. Regino B. Tambago with
violation of the Notarial Law and the ethics of the legal profession for notarizing a spurious last will and testament.
In his complaint, complainant averred that his father, the decedent Vicente Lee, Sr., never executed the contested will.
Furthermore, the spurious will contained the forged signatures of Cayetano Noynay and Loreto Grajo, the purported witnesses
to its execution.
In the said will, the decedent supposedly bequeathed his entire estate to his wife Lim Hock Lee, save for a parcel of land which
he devised to Vicente Lee, Jr. and Elena Lee, half-siblings of complainant.
The will was purportedly executed and acknowledged before respondent on June 30, 1965.1 Complainant, however, pointed
out that the residence certificate2 of the testator noted in the acknowledgment of the will was dated January 5, 1962.3
Furthermore, the signature of the testator was not the same as his signature as donor in a deed of donation4 (containing his
purported genuine signature). Complainant averred that the signatures of his deceased father in the will and in the deed of
donation were "in any way (sic) entirely and diametrically opposed from (sic) one another in all angle[s]."5
Complainant also questioned the absence of notation of the residence certificates of the purported witnesses Noynay and
Grajo. He alleged that their signatures had likewise been forged and merely copied from their respective voters’ affidavits.
Complainant further asserted that no copy of such purported will was on file in the archives division of the Records
Management and Archives Office of the National Commission for Culture and the Arts (NCCA). In this connection, the
certification of the chief of the archives division dated September 19, 1999 stated:
Doc. 14, Page No. 4, Book No. 1, Series of 1965 refers to an AFFIDAVIT executed by BARTOLOME RAMIREZ on June 30, 1965 and
is available in this Office[’s] files.6
Respondent in his comment dated July 6, 2001 claimed that the complaint against him contained false allegations: (1) that
complainant was a son of the decedent Vicente Lee, Sr. and (2) that the will in question was fake and spurious. He alleged that
complainant was "not a legitimate son of Vicente Lee, Sr. and the last will and testament was validly executed and actually
notarized by respondent per affidavit7 of Gloria Nebato, common-law wife of Vicente Lee, Sr. and corroborated by the joint
affidavit8 of the children of Vicente Lee, Sr., namely Elena N. Lee and Vicente N. Lee, Jr. xxx."9
Respondent further stated that the complaint was filed simply to harass him because the criminal case filed by complainant
against him in the Office of the Ombudsman "did not prosper."
Respondent did not dispute complainant’s contention that no copy of the will was on file in the archives division of the NCCA.
He claimed that no copy of the contested will could be found there because none was filed.
Lastly, respondent pointed out that complainant had no valid cause of action against him as he (complainant) did not first file
an action for the declaration of nullity of the will and demand his share in the inheritance.
In a resolution dated October 17, 2001, the Court referred the case to the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation.10
In his report, the investigating commissioner found respondent guilty of violation of pertinent provisions of the old Notarial Law
as found in the Revised Administrative Code. The violation constituted an infringement of legal ethics, particularly Canon 1 11
and Rule 1.0112 of the Code of Professional Responsibility (CPR).13 Thus, the investigating commissioner of the IBP Commission
on Bar Discipline recommended the suspension of respondent for a period of three months.
The IBP Board of Governors, in its Resolution No. XVII-2006-285 dated May 26, 2006, resolved:
[T]o ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with modification, the Report and Recommendation of the
Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex "A"; and, finding the
recommendation fully supported by the evidence on record and the applicable laws and rules, and considering Respondent’s
failure to comply with the laws in the discharge of his function as a notary public, Atty. Regino B. Tambago is hereby suspended
from the practice of law for one year and Respondent’s notarial commission is Revoked and Disqualified from reappointment
as Notary Public for two (2) years.14

38
We affirm with modification.
A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the
disposition of his estate, to take effect after his death.15 A will may either be notarial or holographic.
The law provides for certain formalities that must be followed in the execution of wills. The object of solemnities surrounding
the execution of wills is to close the door on bad faith and fraud, to avoid substitution of wills and testaments and to guarantee
their truth and authenticity.16
A notarial will, as the contested will in this case, is required by law to be subscribed at the end thereof by the testator himself.
In addition, it should be attested and subscribed by three or more credible witnesses in the presence of the testator and of one
another.17
The will in question was attested by only two witnesses, Noynay and Grajo. On this circumstance alone, the will must be
considered void.18 This is in consonance with the rule that acts executed against the provisions of mandatory or prohibitory
laws shall be void, except when the law itself authorizes their validity.
The Civil Code likewise requires that a will must be acknowledged before a notary public by the testator and the witnesses. 19
The importance of this requirement is highlighted by the fact that it was segregated from the other requirements under Article
805 and embodied in a distinct and separate provision.20
An acknowledgment is the act of one who has executed a deed in going before some competent officer or court and declaring it
to be his act or deed. It involves an extra step undertaken whereby the signatory actually declares to the notary public that the
same is his or her own free act and deed.21 The acknowledgment in a notarial will has a two-fold purpose: (1) to safeguard the
testator’s wishes long after his demise and (2) to assure that his estate is administered in the manner that he intends it to be
done.
A cursory examination of the acknowledgment of the will in question shows that this particular requirement was neither strictly
nor substantially complied with. For one, there was the conspicuous absence of a notation of the residence certificates of the
notarial witnesses Noynay and Grajo in the acknowledgment. Similarly, the notation of the testator’s old residence certificate in
the same acknowledgment was a clear breach of the law. These omissions by respondent invalidated the will.
As the acknowledging officer of the contested will, respondent was required to faithfully observe the formalities of a will and
those of notarization. As we held in Santiago v. Rafanan:22
The Notarial Law is explicit on the obligations and duties of notaries public. They are required to certify that the party to every
document acknowledged before him had presented the proper residence certificate (or exemption from the residence tax); and
to enter its number, place of issue and date as part of such certification.
These formalities are mandatory and cannot be disregarded, considering the degree of importance and evidentiary weight
attached to notarized documents.23 A notary public, especially a lawyer,24 is bound to strictly observe these elementary
requirements.
The Notarial Law then in force required the exhibition of the residence certificate upon notarization of a document or
instrument:
Section 251. Requirement as to notation of payment of [cedula] residence tax. – Every contract, deed, or other document
acknowledged before a notary public shall have certified thereon that the parties thereto have presented their proper [cedula]
residence certificate or are exempt from the [cedula] residence tax, and there shall be entered by the notary public as a part of
such certificate the number, place of issue, and date of each [cedula] residence certificate as aforesaid.25
The importance of such act was further reiterated by Section 6 of the Residence Tax Act26 which stated:
When a person liable to the taxes prescribed in this Act acknowledges any document before a notary public xxx it shall be the
duty of such person xxx with whom such transaction is had or business done, to require the exhibition of the residence
certificate showing payment of the residence taxes by such person xxx.
In the issuance of a residence certificate, the law seeks to establish the true and correct identity of the person to whom it is
issued, as well as the payment of residence taxes for the current year. By having allowed decedent to exhibit an expired
residence certificate, respondent failed to comply with the requirements of both the old Notarial Law and the Residence Tax
Act. As much could be said of his failure to demand the exhibition of the residence certificates of Noynay and Grajo.
On the issue of whether respondent was under the legal obligation to furnish a copy of the notarized will to the archives
division, Article 806 provides:

39
Art. 806. Every will must be acknowledged before a notary public by the testator and the witness. The notary public shall not
be required to retain a copy of the will, or file another with the office of the Clerk of Court. (emphasis supplied)
Respondent’s failure, inadvertent or not, to file in the archives division a copy of the notarized will was therefore not a cause
for disciplinary action.
Nevertheless, respondent should be faulted for having failed to make the necessary entries pertaining to the will in his notarial
register. The old Notarial Law required the entry of the following matters in the notarial register, in chronological order:
1. nature of each instrument executed, sworn to, or acknowledged before him;
2. person executing, swearing to, or acknowledging the instrument;
3. witnesses, if any, to the signature;
4. date of execution, oath, or acknowledgment of the instrument;
5. fees collected by him for his services as notary;
6. give each entry a consecutive number; and
7. if the instrument is a contract, a brief description of the substance of the instrument.27
In an effort to prove that he had complied with the abovementioned rule, respondent contended that he had crossed out a
prior entry and entered instead the will of the decedent. As proof, he presented a photocopy of his notarial register. To
reinforce his claim, he presented a photocopy of a certification28 stating that the archives division had no copy of the affidavit
of Bartolome Ramirez.
A photocopy is a mere secondary evidence. It is not admissible unless it is shown that the original is unavailable. The proponent
must first prove the existence and cause of the unavailability of the original,29 otherwise, the evidence presented will not be
admitted. Thus, the photocopy of respondent’s notarial register was not admissible as evidence of the entry of the execution of
the will because it failed to comply with the requirements for the admissibility of secondary evidence.
In the same vein, respondent’s attempt to controvert the certification dated September 21, 199930 must fail. Not only did he
present a mere photocopy of the certification dated March 15, 2000;31 its contents did not squarely prove the fact of entry of
the contested will in his notarial register.
Notaries public must observe with utmost care32 and utmost fidelity the basic requirements in the performance of their duties,
otherwise, the confidence of the public in the integrity of notarized deeds will be undermined. 33
Defects in the observance of the solemnities prescribed by law render the entire will invalid. This carelessness cannot be taken
lightly in view of the importance and delicate nature of a will, considering that the testator and the witnesses, as in this case,
are no longer alive to identify the instrument and to confirm its contents.34 Accordingly, respondent must be held accountable
for his acts. The validity of the will was seriously compromised as a consequence of his breach of duty.35
In this connection, Section 249 of the old Notarial Law provided:
Grounds for revocation of commission. — The following derelictions of duty on the part of a notary public shall, in the
discretion of the proper judge of first instance, be sufficient ground for the revocation of his commission:
xxx xxx xxx
(b) The failure of the notary to make the proper entry or entries in his notarial register touching his notarial acts in the manner
required by law.
xxx xxx xxx
(f) The failure of the notary to make the proper notation regarding cedula certificates.36
These gross violations of the law also made respondent liable for violation of his oath as a lawyer and constituted
transgressions of Section 20 (a), Rule 138 of the Rules of Court37 and Canon 138 and Rule 1.0139 of the CPR.
The first and foremost duty of a lawyer is to maintain allegiance to the Republic of the Philippines, uphold the Constitution and
obey the laws of the land.40 For a lawyer is the servant of the law and belongs to a profession to which society has entrusted
the administration of law and the dispensation of justice.41
While the duty to uphold the Constitution and obey the law is an obligation imposed on every citizen, a lawyer assumes
responsibilities well beyond the basic requirements of good citizenship. As a servant of the law, a lawyer should moreover make

40
himself an example for others to emulate.42 Being a lawyer, he is supposed to be a model in the community in so far as respect
for the law is concerned.43
The practice of law is a privilege burdened with conditions.44 A breach of these conditions justifies disciplinary action against
the erring lawyer. A disciplinary sanction is imposed on a lawyer upon a finding or acknowledgment that he has engaged in
professional misconduct.45 These sanctions meted out to errant lawyers include disbarment, suspension and reprimand.
Disbarment is the most severe form of disciplinary sanction.46 We have held in a number of cases that the power to disbar must
be exercised with great caution47 and should not be decreed if any punishment less severe – such as reprimand, suspension, or
fine – will accomplish the end desired.48 The rule then is that disbarment is meted out only in clear cases of misconduct that
seriously affect the standing and character of the lawyer as an officer of the court.49
Respondent, as notary public, evidently failed in the performance of the elementary duties of his office. Contrary to his claims
that he "exercised his duties as Notary Public with due care and with due regard to the provision of existing law and had
complied with the elementary formalities in the performance of his duties xxx," we find that he acted very irresponsibly in
notarizing the will in question. Such recklessness warrants the less severe punishment of suspension from the practice of law. It
is, as well, a sufficient basis for the revocation of his commission50 and his perpetual disqualification to be commissioned as a
notary public.51
WHEREFORE, respondent Atty. Regino B. Tambago is hereby found guilty of professional misconduct. He violated (1) the
Lawyer’s Oath; (2) Rule 138 of the Rules of Court; (3) Canon 1 and Rule 1.01 of the Code of Professional Responsibility; (4) Art.
806 of the Civil Code and (5) the provisions of the old Notarial Law.
Atty. Regino B. Tambago is hereby SUSPENDED from the practice of law for one year and his notarial commission REVOKED.
Because he has not lived up to the trustworthiness expected of him as a notary public and as an officer of the court, he is
PERPETUALLY DISQUALIFIED from reappointment as a notary public.
Let copies of this Resolution be furnished to all the courts of the land, the Integrated Bar of the Philippines and the Office of the
Bar Confidant, as well as made part of the personal records of respondent.
SO ORDERED.

41
G.R. No. 176943 October 17, 2008
DANILO ALUAD, LEONORA ALUAD, DIVINA ALUAD, PROSPERO ALUAD, and CONNIE ALUAD, petitioners,
vs.
ZENAIDO ALUAD, respondent.
DECISION
CARPIO MORALES, J.:
Petitioners’ mother, Maria Aluad (Maria), and respondent Zenaido Aluad were raised by the childless spouses Matilde Aluad
(Matilde) and Crispin Aluad (Crispin).
Crispin was the owner of six lots identified as Lot Nos. 674, 675, 676, 677, 680, and 682 of the Pilar Cadastre, Capiz. After Crispin
died, his wife Matilde adjudicated the lots to herself.1
On November 14, 1981, Matilde executed a document entitled "Deed of Donation of Real Property Inter Vivos"2 (Deed of
Donation) in favor of petitioners’ mother Maria3 covering all the six lots which Matilde inherited from her husband Crispin. The
Deed of Donation provided:
That, for and in consideration of the love and affection of the DONOR [Matilde] for the DONEE [Maria], the latter being adopted
and hav[ing] been brought up by the former the DONOR, by these presents, transfer and convey, BY WAY OF DONATION, unto
the DONEE the property above-described, to become effective upon the death of the DONOR, but in the event that the
DONEE should die before the DONOR, the present donation shall be deemed rescinded and [of] no further force and effect;
Provided, however, that anytime during the lifetime of the DONOR or anyone of them who should survive, they could use[,]
encumber or even dispose of any or even all of the parcels of land herein donated.4 (Emphasis and underscoring supplied)
On September 30, 1986, Original Certificates of Title over Lot Nos. 674 and 676 were issued in Matilde’s name.
On August 26, 1991, Matilde sold Lot No. 676 to respondent by a Deed of Absolute Sale of Real Property.5
Subsequently or on January 14, 1992, Matilde executed a last will and testament,6 devising Lot Nos. 675, 677, 682, and 680 to
Maria, and her "remaining properties" including Lot No. 674 to respondent.
Matilde died on January 25, 1994, while Maria died on September 24 of the same year.7
On August 21, 1995, Maria’s heirs-herein petitioners filed before the Regional Trial Court (RTC) of Roxas City a Complaint,8 for
declaration and recovery of ownership and possession of Lot Nos. 674 and 676, and damages against respondent, alleging:
That in 1978, plaintiff[s] possessed the two (2) parcels of land above-described until January 1991 when defendant entered and
possessed the two (2) parcels of land claiming as the adopted son of Crispin Aluad who refused to give back possession until
Matilde Aluad died in [1994] and then retained the possession thereof up to and until the present time, thus, depriving the
plaintiffs of the enjoyment of said parcels of land x x x;
That after the death of Matilde R. Aluad, the plaintiffs succeeded by inheritance by right of representation from their deceased
mother, Maria Aluad who is the sole and only daughter of Matilde Aluad[.] 9
To the complaint respondent alleged in his Answer.10
That Lot 674 is owned by the defendant as this lot was adjudicated to him in the Last Will and Testament of Matilde Aluad x x x
while Lot 676 was purchased by him from Matilde Aluad. These two lots are in his possession as true owners thereof.11
(Underscoring supplied)
Petitioners later filed a Motion for Leave to Amend Complaint Already Filed to Conform to Evidence12 to which it annexed an
Amended Complaint13 which cited the donation of the six lots via Deed of Donation in favor of their mother Maria. Branch 15 of
the RTC granted the motion and admitted the Amended Complaint.14
Respondent filed an Amended Answer15 contending, inter alia, that the Deed of Donation is forged and falsified and petitioners’
change of theory showed that "said document was not existing at the time they filed their complaint and was concocted by
them after realizing that their false claim that their mother was the only daughter of Matild[e] Aluad cannot in anyway be
established by them";16 and that if ever said document does exist, the same was already revoked by Matilde "when [she]
exercised all acts of dominion over said properties until she sold Lot 676 to defendant and until her death with respect to the
other lots without any opposition from Maria Aluad."17
The trial court, by Decision18 of September 20, 1996, held that Matilde could not have transmitted any right over Lot Nos. 674
and 676 to respondent, she having previously alienated them to Maria via the Deed of Donation. Thus it disposed:
WHEREFORE, in view of the foregoing, judgment is hereby rendered:

42
1. Declaring the plaintiffs as the rightful owners of the subject Lots Nos. 674 and 676, Pilar Cadastre;
2. Ordering the defendant to deliver the possession of the subject lots to the plaintiffs;
3. Ordering the defendant to pay the plaintiffs:
a. Thirty thousand pesos (P30,000.00) as attorney’s fees;
b. Twenty thousand pesos (P20,000.00), representing the income from subject Lot 676, a year from 1991 up to the time said lot
is delivered to the plaintiffs, together with the interest thereof at the legal rate until fully paid;
c. Ten thousand pesos (P10,000.00), representing the income from the subject Lot No. 674, a year from 1991 up to the time
said lot is delivered to the plaintiffs, plus legal interest thereof at the legal rate until fully paid; and
d. The costs of the suit.
Defendant’s counterclaim is ordered dismissed for lack of merit.
SO ORDERED.19
On petitioners’ motion, the trial court directed the issuance of a writ of execution pending appeal. 20 Possession of the subject
lots appears to have in fact been taken by petitioners.
By Decision21 of August 10, 2006, the Court of Appeals reversed the trial court’s decision, it holding that the Deed of Donation
was actually a donation mortis causa, not inter vivos, and as such it had to, but did not, comply with the formalities of a will.
Thus, it found that the Deed of Donation was witnessed by only two witnesses and had no attestation clause which is not in
accordance with Article 805 of the Civil Code, reading:
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the
testator’s name written by some other person in his presence, and by his express direction, and attested and subscribed by
three or more credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental witnesses of the will shall, also sign, as
aforesaid, each and every page thereof, except the last on the left margin and all the pages shall be numbered correlatively in
letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and the fact that that testator signed the
will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the
instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the
testator, and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.
While the appellate court declared respondent as the rightful owner of Lot No. 676, it did not so declare with respect to Lot No.
674, as Matilde’s last will and testament had not yet been probated. Thus the Court of Appeals disposed:
WHEREFORE, finding the instant petition worthy of merit, the same is hereby GRANTED and the Decision of the Regional Trial
Court of Roxas City, Branch 15, dated 20 September 1996, in Civil Case No. V-6686 for declaration of ownership, recovery of
ownership and possession, and damages is REVERSED and SET ASIDE.
A new one is entered in its stead declaring defendant-appellant as the lawful owner of Lot [No.] 676 of the Pilar Cadastre.
Accordingly, plaintiffs-appellees are directed to return the possession of the said lot to the defendant-appellant.
Moreover, plaintiffs-appellees are ordered to pay P40,000.00 to defendant-appellant as attorney’s fees and litigation expenses.
Costs against plaintiffs-appellees.
SO ORDERED.22 (Emphasis in the original; underscoring supplied)
Their Motion for Reconsideration23 having been denied,24 petitioners filed the present Petition for Review,25 contending that
the Court of Appeals erred
I
X X X WHEN IT REVERSED THE DECISION OF THE COURT BELOW (RTC, Branch 15, Roxas City) HOLDING THAT THE DEED OF
DONATION INTER VIVOS IN FAVOR OF PETITIONERS’ MOTHER IS IN FACT A DONATION MORTIS CAUSA.
II

43
X X X WHEN IT RULED THAT RESPONDENT IS THE RIGHTFUL OWNER OF LOT NO. 676 AS LOT BUYER ON THE BASIS OF A DEED OF
SALE EXECUTED BY THE DONOR WHO HAD NO MORE RIGHT TO SELL THE SAME.
III
X X X WHEN IT FAILED TO DECLARE PETITIONERS THE RIGHTFUL OWNER OF LOT NO. 674 AFTER HAVING RULED WHEN IT HELD
THAT RESPONDENT CANNOT BE DECLARED OWNER THEREOF.
IV
X X X WHEN IT HELD THAT THE ISSUANCE OF A WRIT OF EXECUTION PENDING APPEAL IS IN VIOLATION OF PARAGRAPH (a)
SECTION 2, RULE 39, OF THE RULES OF COURT (AND ORDERING PETITIONERS TO RETURN POSSESSION OF LOT 676 TO
RESPONDENT) AND ORDERING PETITIONERS TO PAY ATTORNEY’S FEES AND COST[S] OF SUIT. 26
As did the appellate court, the Court finds the donation to petitioners’ mother one of mortis causa, it having the following
characteristics:
(1) It conveys no title or ownership to the transferee before the death of the transferor; or what amounts to the same thing,
that the transferor should retain the ownership (full or naked) and control of the property while alive;
(2) That before the death of the transferor, the transfer should be revocable by the transferor at will, ad nutum; but revocability
may be provided for indirectly by means of a reserved power in the donor to dispose of the properties conveyed; and
(3) That the transfer should be void if the transferor should survive the transferee.27 (Emphasis and underscoring supplied)
The phrase in the earlier-quoted Deed of Donation "to become effective upon the death of the DONOR" admits of no other
interpretation than to mean that Matilde did not intend to transfer the ownership of the six lots to petitioners’ mother during
her (Matilde’s) lifetime.28
The statement in the Deed of Donation reading "anytime during the lifetime of the DONOR or anyone of them who should
survive, they could use, encumber or even dispose of any or even all the parcels of land herein donated"29 means that Matilde
retained ownership of the lots and reserved in her the right to dispose them. For the right to dispose of a thing without other
limitations than those established by law is an attribute of ownership.30 The phrase in the Deed of Donation "or anyone of them
who should survive" is of course out of sync. For the Deed of Donation clearly stated that it would take effect upon the death of
the donor, hence, said phrase could only have referred to the donor Matilde. Petitioners themselves concede that such phrase
does not refer to the donee, thus:
x x x [I]t is well to point out that the last provision (sentence) in the disputed paragraph should only refer to Matilde Aluad, the
donor, because she was the only surviving spouse at the time the donation was executed on 14 November 1981, as her
husband – Crispin Aluad [–] had long been dead as early as 1975.31
The trial court, in holding that the donation was inter vivos, reasoned:
x x x The donation in question is subject to a resolutory term or period when the donor provides in the aforequoted provisions,
"but in the event that the DONEE should die before the DONOR, the present donation shall be deemed rescinded and [of] no
further force and effect". When the donor provides that should the "DONEE" xxx die before the DONOR, the present donation
shall be deemed rescinded and [of] no further force and effect" the logical construction thereof is that after the execution of
the subject donation, the same became effective immediately and shall be "deemed rescinded and [of] no further force and
effect" upon the arrival of a resolutory term or period, i.e., the death of the donee which shall occur before that of the donor.
Understandably, the arrival of this resolutory term or period cannot rescind and render of no further force and effect a
donation which has never become effective, because, certainly what donation is there to be rescinded and rendered of no
further force and effect upon the arrival of said resolutory term or period if there was no donation which was already effective
at the time when the donee died?32 (Underscoring supplied)
A similar ratio in a case had been brushed aside by this Court, however, thus:
x x x [P]etitioners contend that the stipulation on rescission in case petitioners [donee] die ahead of [donor] Cabatingan is a
resolutory condition that confirms the nature of the donation as inter vivos.
Petitioners’ arguments are bereft of merit.33
xxxx
x x x The herein subject deeds expressly provide that the donation shall be rescinded in case [donees] the petitioners
predecease [the donor] Conchita Cabatingan. As stated in Reyes v. Mosqueda, one of the decisive characteristics of a donation
mortis causa is that the transfer should be considered void if the donor should survive the donee. This is exactly what
Cabatingan provided for in her donations. If she really intended that the donation should take effect during her lifetime and

44
that the ownership of the properties donated to the donee or independently of, and not by reason of her death, she would not
have expressed such proviso in the subject deeds.34 (Underscoring supplied)
As the Court of Appeals observed, "x x x [t]hat the donation is mortis causa is fortified by Matilde’s acts of possession as she
continued to pay the taxes for the said properties which remained under her name; appropriated the produce; and applied for
free patents for which OCTs were issued under her name."35
The donation being then mortis causa, the formalities of a will should have been observed36 but they were not, as it was
witnessed by only two, not three or more witnesses following Article 805 of the Civil Code.37
Further, the witnesses did not even sign the attestation clause38 the execution of which clause is a requirement separate from
the subscription of the will and the affixing of signatures on the left-hand margins of the pages of the will. So the Court has
emphasized:
x x x Article 805 particularly segregates the requirement that the instrumental witnesses sign each page of the will from the
requisite that the will be "attested and subscribed by [the instrumental witnesses]. The respective intents behind these two
classes of signature[s] are distinct from each other. The signatures on the left-hand corner of every page signify, among others,
that the witnesses are aware that the page they are signing forms part of the will. On the other hand, the signatures to the
attestation clause establish that the witnesses are referring to the statements contained in the attestation clause itself. Indeed,
the attestation clause is separate and apart from the disposition of the will. An unsigned attestation clause results in an
unattested will. Even if the instrumental witnesses signed the left-hand margin of the page containing the unsigned attestation
clause, such signatures cannot demonstrate these witnesses’ undertakings in the clause, since the signatures that do appear on
the page were directed towards a wholly different avowal.
x x x It is the witnesses, and not the testator, who are required under Article 805 to state the number of pages used upon which
the will is written; the fact that the testator had signed the will and every page thereof; and that they witnessed and signed the
will and all the pages thereof in the presence of the testator and of one another. The only proof in the will that the witnesses
have stated these elemental facts would be their signatures on the attestation clause.39 (Emphasis and underscoring supplied)
Furthermore, the witnesses did not acknowledge the will before the notary public,40 which is not in accordance with the
requirement of Article 806 of the Civil Code that every will must be acknowledged before a notary public by the testator and
the witnesses.
More. The requirement that all the pages of the will must be numbered correlatively in letters placed on the upper part of each
page was not also followed.41
The Deed of Donation which is, as already discussed, one of mortis causa, not having followed the formalities of a will, it is void
and transmitted no right to petitioners’ mother. But even assuming arguendo that the formalities were observed, since it was
not probated, no right to Lot Nos. 674 and 676 was transmitted to Maria.42 Matilde thus validly disposed of Lot No. 674 to
respondent by her last will and testament, subject of course to the qualification that her (Matilde’s) will must be probated.
With respect to Lot No. 676, the same had, as mentioned earlier, been sold by Matilde to respondent on August 26, 1991.
Petitioners nevertheless argue that assuming that the donation of Lot No. 674 in favor of their mother is indeed mortis causa,
hence, Matilde could devise it to respondent, the lot should nevertheless have been awarded to them because they had
acquired it by acquisitive prescription, they having been in continuous, uninterrupted, adverse, open, and public possession of
it in good faith and in the concept of an owner since 1978.43
Petitioners failed to raise the issue of acquisitive prescription before the lower courts, however, they having laid their claim on
the basis of inheritance from their mother. As a general rule, points of law, theories, and issues not brought to the attention of
the trial court cannot be raised for the first time on appeal.44 For a contrary rule would be unfair to the adverse party who
would have no opportunity to present further evidence material to the new theory, which it could have done had it been aware
of it at the time of the hearing before the trial court.45
WHEREFORE, the petition is DENIED.
SO ORDERED.

45
G.R. No. L-33592 March 31, 1931
Estate of the deceased Victorina Villaranda.
EUSEBIA LIM, petitioner-appellant,
vs.
JULIANA CHINCO, oppositor-appellee.
Perfecto Gabriel and Eusebio Orense for appellant.
Camus and Delgado for appellee.
STREET, J.:
This is a contest over the probate of a paper writing purporting to be the will of Victorina Villaranda y Diaz, a former resident of
the municipality of Meycauayan, Province of Bulacan, who died in the Hospital of San Juan de Dios, in the City of Manila, on
June 9, 1929. The deceased left no descendants or ascendants, and the document produced as her will purports to leave her
estate, consisting of properties valued at P50,000, more or less, chiefly to three collateral relatives, Eusebia, Crispina, and
Maria, of the surname of Lim. This instrument was offered for probate by Eusebia Lim, named in the instrument as executrix
Opposition was made by Juliana Chinco, a full sister of the deceased. Upon hearing the cause the trial court sustained the
opposition and disallowed the will on the ground that the testatrix did not have testamentary capacity at the time the
instrument purports to have been executed by her From this judgment the proponent of the will appealed.
The deceased was a resident of Mercauayan, Province of Bulacan, and was about 80 years of age at the time of her death. On
the morning of June 2, 1929, she was stricken with apoplexy, incident to cerebral hemorrhage, and was taken in an unconscious
condition, seated in a chair, to her room. Doctor Geronimo Z. Gaanan, a local physician of Meycauayan, visited the old lady,
with whom he was well acquianted, three or four times, the first visit having occurred between 6 and 7 p. m. of June 3d. Upon
examining the patient, he found her insensible and incapable of talking or controlling her movements. On the same day the
parish priest called for the purpose of administering the last rites of the church, and being unable to take her confession, he
limited himself to performing the office of extreme unction. Doctor Isidoro Lim, of Manila, was also called upon to visit the
patient and he came to see her two or three times. With his approval, it was decided to take the woman to the hospital of San
Juan de Dios in Manila, and on the morning of June 5, 1929, the ambulance from this hospital arrived, in charge of Doctor
Guillermo Lopez del Castillo, a resident physician of the hospital. At about 11 c'clock a.m. on that day she was embarked on the
ambulance and taken to the hospital, where she died four days later.
The purported will, which is the subject of this proceeding, was prepared by Perfecto Gabriel, a practicing attorney of Manila,
whose wife appears to be related to the chief beneficiaries named in the will. This gentlemen arrived upon the scene at 9
o'clock on the forenoon of June 5, 1929. After informing himself of the condition of the testatrix, he went into a room adjacent
to that occupied by the patient and, taking a sheet from an exercise book, wrote the instrument in question. He then took it
into the sick room for execution. With this end in view Gabriel suggested to Doctor Lopez del Castillo that he would be pleased
to have Doctor Castillo sign as a witness, but the latter excused himself for the reason that he considered the old lady to be
lacking in testamentary capacity. Another person present was Marcos Ira, a first cousin of the deceased, and attorney Gabriel
asked him also whether or not he was willing to sign as one of the witnesses. Ira replied in a discouraging tone, and the
attorney turned away without pressing the matter. In the end three persons served as witnesses, all of whom were in friendly
relations with the lawyer, and two relatives of his wife. The intended testatrix was not able to affix her signature to the
document, and it was signed for her by the attorney.
The vital question in the case is whether the supposed testatrix had testamentary capacity at the time the paper referred to
was signed. Upon this point we are of the opinion, as was the trial judge, that the deceased, on the morning of June 5, 1929,
was in a comatose condition and incapable of performing any conscious and valid act. The testimony of Doctor Gaanan and
Doctor Lopez del Castillo is sufficient upon this point, and this testimony is well corroborated by Paciana Diaz and Irene Ahorro.
The first of these witnesses was the one who chiefly cared for the deceased during her last illness in Meycauayan until she was
carried away to the hospital in Manila; and the second was a neighbor, who was called in when the stroke of apoplexy first
occurred and who visited the patient daily until she was removed from Meycauayan.
The testimony of these witnesses is convincing to the effect that the patient was in a continuous state of coma during the entire
period of her stay in Meycauayan, subsequent to the attack, and that on the forenoon of June 5, 1929, she did not have
sufficient command of her faculties to enable her to do any valid act. Doctor Lim, the physician from Manila, testified for the
proponent of the will. His testimony tends to show that the patient was not suffering from cerebral hemorrhage but from
uræmic trouble, and that, after the first attack, the patient was much relieved and her mind so far cleared up that she might
have made a will on the morning of June 5th. The attorney testified that he was able to communicate with the deceased when
the will was made, and that he read the instrument over to her clause by clause and asked her whether it expressed her wishes.
He says that she made signs that enabled him to understand that she concurred in what was written. But it is clear, even upon

46
the statement of this witness, that the patient was unable to utter intelligent speech. Upon the authority of Perry vs. Elio (29
Phil., 134), the paper offered for probate was properly disallowed.
The judgment appealed from will therefore be affirmed, and it is so ordered, with costs against the appellant.

47
G.R. No. L-5263 February 17, 1954
AGUSTIN BARRERA, ET AL., proponents-appellants,
vs.
JOSE TAMPOCO, ET AL., oppositors-appellees.
Jesus G. Barrera for appellants.
Filemon Cajator for appellees.
PARAS, C.J.:
Olivia Villapaña died in Tarlac, Tarlac, on December 13, 1948. On December 31, 1948, a petition was filed by Agustin Barrera in
the Court of First Instance of Tarlac for the probate of the will executed by Olivia Villapaña on July 17, 1948, and for the
appointment of the petitioner as executor. According to the petition the properties left by the testatrix are worth P94,852.96,
and the heirs instituted are nephews and nieces and grandchildren in the collateral line. Jose Tampoco and Victoriano
Tampoco, alleged grandchildren of the testatrix in the direct line, filed an opposition, claiming that the will was not executed
and attested in accordance with the law, that the testatrix lacked testamentary capacity, that there was undue influence and
pressure in its execution, that the signature of Olivia Villapaña was obtained by fraud and trickery, and that the testamentary
provisions are illegal. Consorcia Lintang, Nemesio Villapaña, Marcos Villapaña, Jesus Villapaña, Vicente Villapaña, Ursulo
Villapaña, Avelina Villapaña, and Rosario Villapaña, alleged nephews and nieces, also filed an opposition on substantially the
same grounds on which the opposition of Jose and Victoriano Tampoco was based. After protracted trial, and more than a year
after submission of the case, a decision was rendered by the Court of First Instance of Tarlac on August 11, 1951, disallowing
the will. The court found that Olivia Villapaña had testamentary capacity, that there was no forgery, fraud, trickery or undue
influence in the execution of the will, and that petition of forced heirs is not a ground for denying probate; but the will was
disallowed because it was not the personal last will and testament of the deceased and it was not based on the finding that
Olivia Villapaña did not furnish the names of the persons instituted as heirs and that the will was not read to her before she
signed it. The second ground is premised on the conclusion that attesting witness Laureano Antonio was not present when
Olivia Villapaña and attesting witness Honorio Lacson signed the will; that Antonio only partially saw the signing by attesting
witness Modesto Puno; and that Olivia Villapaña saw Antonio sign only two or three times. From this decision the petitioner has
appealed.
According to appellant's evidence, two or three days before July 10, 1948, Pilar Tañedo called on Modesto Puno, a lawyer and
justice of the peace of Concepcion, Tarlac, and requested the latter to come to Manila for a conference with Olivia Villapaña,
aunt of Pilar. On July 10, 1948, Atty. Puno, complying with the request, went to the house of Pilar Tañedo in Singalong Street
where Olivia was staying. The latter, after preliminary greetings and courtesies, informed Atty. Puno that she wanted him to
prepare her will, giving the names of the heirs and the properties to be left. Olivia Villapaña asked Atty. Puno to get the
description of the properties from the herein appellant, Agustin Barrera, husband of Pilar Tañedo. Atty. Puno noted the wishes
of Olivia, and, as there was then no available typewriter, he informed the old woman that he would prepare the will in his office
in Concepcion and come back with it on the following Saturday. As promised, on or July 17, 1948, Atty. Puno returned to the
house of Olivia Villapaña in Singalong, carrying with him one original and three copies, in typewritten form, of the will he
drafted in accordance with the instructions of Olivia Villapaña. Atty. Puno arrived about noon. He read the will to Olivia to find
out whether it conformed to her wishes, and she indicated that it was all right. After lunch Atty. Puno manifested that two
other witnesses were necessary, whereupon Pilar Tañedo requested Honorio Lacson and Laureano Antonio, who were then
living in the first floor of the house, to come up. Lacson and Antonio did as requested. Olivia Villapaña, Atty. Puno, Lacson and
Antonio were then seated around a small rectangular table in sala, and at this juncture Atty. Puno gave a copy of the will to
Olivia, Lacson and Antonio, while he retained one. The Attorney again read the will aloud, advising the rest to check their
respective copies. As Olivia Villapaña agreed to the will, she proceeded to sign all the four copies, on the lines previously placed
by Atty. Puno, followed successively by Lacson, Atty. Puno and Antonio, all in the presence of each other. After the signing,
Atty. Puno gave the original and a copy to Olivia, and retained the other two copies. Atty. Puno , Lacson and Antonio stayed for
a while even ate merienda prepared by the sisters Pilar and Beatriz Tañedo. Olivia Villapaña delivered her will to Agustin
Barrera for safekeeping on October 17, 1948 when she was taken to the U.S.T. Hospital where she remained until November 7,
1948. On this date her doctors lost all hope for her recovery and Olivia Villapaña was brought to Tarlac, Tarlac, her hometown,
where, as already stated, she died on December 13, 1948.
According to the evidence for the oppositors-appellees, the will presented in the court by the petitioner was not executed in
accordance with law, in that attesting witness Laureano Antonio did not see the testatrix and attesting witness Lacson sign the
will or any of its copies, that he saw Atty. Puno when the latter was already half thru signing the document, and that the
testatrix did not see Antonio sign all the copies.
After a thorough study of the record and mature reflection on the conflicting evidence, we are constrained to conclude that the
trial court erred in denying probate of the will.

48
Of the three attesting witnesses, namely, Atty. Modesto Puno, Honorio Lacson, and Laureano Antonio, the first two testified
positively that the will was signed by the testatrix and the three witnesses in the presence of each other, and that it was read to
the testatrix before being signed. In view of the opposition filed by the two sets of oppositors , the third attesting witness,
Laureano Antonio, had to be presented by the petitioner but, contrary to expectations, Antonio testified that he arrived at the
scene of the execution of the will after testatrix and Honorio Lacson had already signed and after Atty. Puno was half through
affixing his signatures, and that the testatrix left before Antonio finished signing all the copies. By numerical superiority alone,
the weight of the testimony of Atty. Puno and Honorio Lacson outbalances the probative value of the testimony of Laureano
Antonio. Intrinsically, we cannot state that Laureano Antonio spoke the truth on the witness stand, since, in the first place, the
attestation clause signed by him contradicts his pretense and, in the second place, there is enough evidence on the record to
show that in his conferences with Atty. Barrera before taking the witness stand, Antonio never gave the slightest indication that
he was not present when the testatrix left before Antonio finished signing. Modesto Puno is a lawyer and at the time a justice
of the peace, and it is improbable that he would unnecessarily risk his honor and reputation. Indeed, the trial court gave the
impression that Atty. Puno was anxious to strictly meet the requirements of the law and in the absence, as in the case at bar, of
any reason for a hasty completion, we do not believe that Atty. Puno would have allowed the signing of the will to be
proceeded with unless three attesting witnesses were already present. On the other hand, we can fairly state that there was in
fact no hurry on the part of any of the participants in the will, because the testatrix Olivia Villapaña was not dying (she died
some five months after the execution of the will) and the parties could therefore take all the time that they wanted, Indeed,
none of the three witnesses, left the house of Olivia Villapaña and they even stayed therein until after merienda time.
The fact that Atty. Puno id the brother of Jose Puno who is the husband of Carmen Tañedo, one of the beneficiaries of the will,
and that Honorio Lacson is the husband of Bibiana Lacson who is a first cousin of Agustin Barrera, herein petitioner and
husband of Pilar Tañedo, is not sufficient to make then biased witnesses. If Atty. Puno had any material interest, this fact should
have caused him to be more careful in seeing to it that the formalities of the law were strictly complied with, and this should be
true with respect to Honorio Lacson.
In deciding against the probate of the will, the trial court believed the testimony of Laureano Antonio to the effect that he
arrived at the place of the signing at about 2:30 in the afternoon, and thereby found that a greater part of the proceeding was
finished, because Atty. Puno declared in one place that "the signing of the testament commenced around between one o'clock
and two o'clock" and in another place that the signing took place "around two and three o'clock," and Honorio Lacson declared
that he was called by Pilar Tañedo to act as witness at around two o'clock or two thirty. From the testimony of Atty. Puno and
Honorio Lacson the court concluded that the signing actually commenced between one and two o'clock. We are of the opinion
that the specification of the time of the signing refers to an immaterial or unimportant detail which, in view of the lapse of
time, might have been a mistake by one or the other participant in the execution of Oliva's will. What is important and decisive
— and this should be impressed in the mind of an attorney preparing and taking charge of the signing of will, — is that the
testatrix and each of the three attesting witnesses must affix their signatures in the presence of one another. In the case before
us, Atty. Puno and Honorio
Lacson both attesting witnesses, categorically affirmed that this procedure was followed. At any rate, even under the testimony
of Atty. Puno and Honorio Lacson, the signing could have taken place at about or after two thirty, since the former declared
that it took place between two and three o'clock and Honorio Lacson stated that the time was two or two thirty. another point
invoked by the trial court against the probate of the will is the circumstance that, while Atty. Puno testified that he placed the
lines on which the testatrix and the witnesses were to sign before he read the document to the testatrix whom he gave the
original witness Lacson testify that Atty. Puno read the original after giving a copy to the testatrix, and after reading Atty. Puno
placed the lines for signatures. The discrepancy again refers to a minor detail which is not sufficient to negative the truthfulness
of Atty. Puno and Honorio Lacson on the main and important fact that the will was signed by the testatrix and the three
attesting witnesses in the presence of each other.
Oppositors-appellees presented in corroboration of the testimony of Laureano Antonio, Joaquin Villapaña and Consolacion del
Mundo. Joaquin Villapaña, a painter allegedly was then the maid of Oliva Villapaña. Apart from the fact that there is evidence
to show that both Joaquin Villapaña and Consolacion del Mundo were not yet employed in the house of Oliva when the latter's
will was executed, there is little or no reason for their version to prevail over the positive testimony is even corroborated by
two other witnesses, Bibiana Lacson and Beatriz Tañedo. Certainly the story of Joaquin Villapaña and Consolacion del Mundo
can have no greater weight than that of Laureano Antonio.
In the holding that the will was not that of Oliva Villapaña, the trial court found that it was not read to her; and this finding was
premised on the alleged contradiction of Atty. Puno and Honorio Lacson regarding the sequence of the reading of the will and
the placing of the lines for signatures, and regarding the question whether a copy or the original was handed to the testatrix. As
we have already observed, the discrepancy relates to an insignificant matter which cannot vitally detract from the credibility of
Atty. Puno to the effect that upon arrival at the house of Oliva Villapaña at about noon, he read the will to her with a view to
finding whether she was agreeable thereto. It is not necessary that said will be read upon its signing and in the presence of the
witnesses.

49
The trial court also concluded that the testatrix could not have furnished the names of the heirs instituted under the will,
because (1) Salvador Tañedo, one of such heirs, was long dead and (2) Marcelo Villapaña, another instituted heir, was non-
existent, since Oliva Villapaña did not have a grandson by such name. It is true that Salvador Tañedo was already dead and the
testatrix knew about it, but it is not uncommon for a woman of old age, confused by the big number of her relatives, to commit
the mistake of unwittingly mentioning a dead one. With respect to the instituted heir, Marcelo Villapaña, while it appears that
Oliva did not have a grandson answering to that name, there is evidence tending to show that Pioquinto Villapaña, a child of
Ruperta Pineda, must have been reffered to, because Oliva, who was the child's god-mother, originally wanted said child to be
baptized as Marcelo, after his father. Moreover, if Atty. Puno had supplied the names instituted as heirs, he would have
consulted all the interested parties and would be sure that no mistake of the kind was made.
As a closing observation, it is not for us to discover the motives of Oliva Villapaña in leaving her properties to the person named
in the will, and omitting therefrom the oppositors-appellees. Suffice it to state that the trial court itself found the will to have
been executed free from falsification, fraud, trickery or undue influence, with Oliva having testamentary capacity; and in such a
situation it becomes our duty to give expression to her will.
Wherefore, the appealed order is reversed and the will executed by Oliva Villapaña on July 17, 1948, is hereby allowed. So
ordered without costs.

50
G.R. No. 76648 February 26, 1988
THE HEIRS OF THE LATE MATILDE MONTINOLA-SANSON, petitioners,
vs.
COURT OF APPEALS and EDUARDO F. HERNANDEZ, respondents.

GANCAYCO, J.:
This is a petition for review on certiorari of the decision of the Court of Appeals 1 promulgated August 29,1986 affirming in toto
the decision of the Regional Trial Court of Manila, Branch XXII 2 dated March 21, 1985, the dispositive part of which reads:
WHEREFORE, the Court renders judgment declaring the holographic will marked in evidence as Exhibit "H" as one wholly
written, dated, and signed freely by the late Herminia Montinola in accordance with law while in possession of full
testamentary capacity, and allowing and admitting the same to probate.
Upon the finality of the decision, let letters testamentary issue to the executor, Eduardo F. Hernandez, as well as the certificate
of probate prescribed under Section 13 of Rule 76 of the Rules of Court.
SO ORDERED. 3
This case arose from a petition filed by private respondent Atty. Eduardo F. Hernandez on April 22, 1981 with the Court of First
Instance of Manila (now Regional Trial Court) seeking the probate of the holographic will of the late Herminia Montinola
executed on January 28, 1980. 4 The testatrix, who died single, parentless and childless on March 29,1981 at the age of 70
years, devised in this will several of her real properties to specified persons.
On April 29,1981, private respondent who was named executor in the will filed an urgent motion for appointment of special
administrator. 5 With the conformity of all the relatives and heirs of the testatrix except oppositor, the court in its order of May
5, 1981 6 appointed private respondent as Special Administrator of the testate estate of deceased.
On June 29,1981, Matilde Montinola Sanson (petitioner), the only surviving sister of the deceased but who was not named in
the said win, filed her Opposition to Probate of Will, 7 alleging inter alia: that the subject will was not entirely written, dated
and signed by the testatrix herself and the same was falsely dated or antedated; that the testatrix was not in full possession of
her mental faculties to make testamentary dispositions; that undue influence was exerted upon the person and mind of the
testatrix by the beneficiaries named in the win; and that the will failed to institute a residual heir to the remainder of the
estate.
After a hearing on the merits, the probate court, finding the evidence presented in support of the petition to be conclusive and
overwhelming, rendered its decision allowing the probate of the disputed will.
Petitioner thus appealed the decision of the probate court to the Court of Appeals which affirmed in toto the decision. 8
On September 24,1986, petitioner filed with the respondent court a motion for new trial. 9 Attached to her motion was the
Affidavit of Merit of Gregorio Montinola Sanson, petitioner's son, alleging that witnesses have been located whose testimonies
could shed light as to the ill health of the testatrix as well as undue influence exerted on the latter.
The appellate court in its resolution of October 13, 1986, 10 denied the motion for new trial of petitioner on the following
grounds: (1) the Affidavit of merit attached to the motion alleged that efforts were exerted to locate unnamed witnesses only
after the court's decision was handed down, and (2) the unnamed witnesses would allegedly shed light on the fact of grave
illness of the testatrix as well as the undue influence exerted on her which are merely corroborative or cumulative since these
facts were brought to light during the trial.
The motion for reconsideration of petitioner dated October 27, 1986 11 was likewise denied by the appellate court in its
resolution of November 20, 1986 12 on the ground that the affidavit of one Patricia Delgado submitted with the motion
constitutes cumulative evidence and the motion being in reality a second motion for reconsideration which is prescribed by
law.
In the petition now before Us, petitioner assigned the following errors:
I
THE RESPONDENT COURT OF APPEALS ERRED IN DENYING PETITIONERS' MOTION FOR NEW TRIAL ON THE GROUND THAT THE
EVIDENCE SOUGHT TO BE PRESENTED IS MERELY CUMULATIVE.
II

51
THE SAID COURT ERRED IN DENYING PETITIONERS' MOTION FOR RECONSIDERATION OF THE RESOLUTION DENYING THE
AFORESAID MOTION FOR NEW TRIAL.
III
AT ANY RATE, THE SAID COURT ERRED IN HOLDING THAT THE HOLOGRAPHIC WILL IN QUESTION WAS WHOLLY WRITTEN,
DATED AND SIGNED BY THE LATE HERMINIA MONTINOLA.
IV
THE SAID COURT ERRED IN NOT FINDING THAT THE ALLEGED WILL WAS FRAUDULENTLY ANTEDATED TO CONCEAL ITS ACTUAL
DATE OF EXECUTION AND TO SHIELD IT FROM PROBABLE DISPUTES AS TO THE TESTAMENTARY CAPACITY ON THE PART OF THE
ALLEGED TESTATRIX AT THE TIME OF ITS ACTUAL EXECUTION.
V
THE SAID COURT ERRED IN HOLDING THAT THE LATE HERMINIA MONTINOLA WAS NOT SUBJECTED TO UNDUE PRESSURE AND
IMPROPERIMPORTUNINGS ON THE PART OF THOSE STANDING TO BENEFIT FROM THE ALLEGED WILL.
VI
THE SAID COURT ERRED IN ALLOWING THE HOLOGRAPHIC WILL IN QUESTION TO PROBATE.
In the meantime, petitioner who passed away on November 3, 1986, was substituted by her heirs.
In the first and second assigned errors, petitioners maintain that the appellate court erred in denying the motion for new trial
insisting that the new evidence sought to be presented is not merely corroborative or cumulative.
On the other hand, the contention of private respondent is that the motion for new trial was a pro-forma motion because it
was not in accordance with Sec. 1, Rule 53 of the Rules of Court. We find merit in this contention.
Section 1, Rule 53 provides —
Before a final order or judgment rendered by the Court of appeals becomes executory, a motion for new trial may be filed on
the ground of newly discovered evidence which could not have been discovered prior to the trial in the court below by the
exercise of the diligence and which is of such a character as would probably change the result. The motion shall be
accompanied by affidavits showing the facts constituting the grounds therefor and the newly discovered evidence.
The affidavit of merit executed by Gregorio Montinola Sanson alleged the following:
xxx xxx xxx
3. That in her plea for new trial in the said case, I have exerted efforts to locate witnesses whose whereabouts were not known
to us during the trial in the lower court, but I have finally succeeded in tracking them down;
4. That despite their initial reluctance to testify in this case,I am convinced that they would testify under proper subpoena for
purposes of shedding light on the fact that the testatrix was gravely ill at or but the time that the questioned will was allegedly
executed;
5. That they had the clear opportunity to know the circumstances under which the purported will was executed; and that they
know for a fact that there was 'undue influence' exerted by petitioner and other relatives to procure improper favors from the
testatrix;
xxx xxx xxx 13
Said motion for new trial is not in substantial compliance with the requirements of Rule 53. The lone affidavit of a witness who
was already presented said the hearing is hardly sufficient to justify the holding of new trial. The alleged new witnesses were
unnamed without any certainty as, to their appearance before the court to testify. Affiant attests only on his belief that they
would testify if and when they are subpoenaed by the court. Furthermore, the allegations in the affidavit as to the undue
influence exerted on the testatrix are mere conclusions and not statement of facts. The requisite affidavits must state facts and
not mere conclusions or opinions, otherwise they are not valid. 14 The affidavits are required to avoid waste of the court's time
if the newly discovered evidence turns out to be immaterial or of any evidentiary weight.
Moreover, it could not be said that the evidence sought to be presented is new having been discovered only after the trial. It is
apparent from the allegations of affiant that efforts to locate the witnesses were exerted only after the decision of the
appellate court was handed down. The trial lasted for about four years so that petitioner had ample time to find said alleged
witnesses who were admittedly known to her. The evidence which the petitioner now propose to present could have been

52
discovered and presented during the hearing of the case, and there is no sufficient reason for concluding that had the
petitioner exercised proper diligence she would not have been able to discover said evidence. 15
In addition, We agree with the appellate court that since the alleged illness of the testatrix as well as the charges of undue
influence exerted upon her had been brought to light during the trial, and new evidence on this point is merely corroborative
and cumulative which is generally not a ground for new trial. 16 Accordingly, such evidence even if presented win not carry
much probative weight which can alter the judgment. 17
It is very patent that the motion for new trial was filed by petitioner only for the purpose of delaying the proceedings. In fact,
petitioners son in his manifestation admitted that he had to request a new law firm to do everything legally possible to meet
the deadline for the filing of a motion for reconsideration and/or for new trial. 18 This would explain the haphazard preparation
of the motion, thus failing to comply with the requirements of rule 53, which was filed on the last day of the reglementary
period of appeal so that the veracity of the ground relied upon is questionable. The appellate court correctly denied the motion
for new trial.
The motion for new trial being pro-forma, it does not interrupt the running of the period for appeal. 19 Since petitioner's
motion was filed on September 24,1986, the fifteenth or last day of the period to appeal, the decision of the respondent court
became final on the following day, September 25. And when the motion for reconsideration of petitioner was filed on October
30,1986, it was obviously filed out of time.
Since the questioned decision has already become final and executory, it is no longer within the province of this Court to review
it. This being so, the findings of the probate court as to the due execution of the will and the testamentary capacity of testatrix
are now conclusive. 20
At any rate, even assuming that We can still review this case on its merits, the petition will also have to fail.
During the hearing before the probate court, not only were three (3) close relatives of the testatrix presented but also two (2)
expert witnesses who declared that the contested will and signature are in the handwriting of the testatrix. These testimonies
more than satisfy the requirements of Art. 811 of the Civil Code 21 in conjunction with Section 11 of Rule 76, Revised Rules of
Court, 22 or the probate of holographic wills.
As regards the alleged antedating of the will, petitioner failed to present competent proof that the will was actually executed
sometime in June 1980 when the testatrix was already seriously ill and dying of terminal lung cancer. She relied only on the
supposed inconsistencies in the testimony of Asuncion Gemperle, niece and constant companion of testatrix, which upon
careful examination did not prove such claim of antedating.
The factual findings of the probate court and the Court of Appeals that the will in question was executed according to the
formalities required by law are conclusive on the Supreme Court when supported by evidence. 23 We have examined the
records of this case and find no error in the conclusion arrived at by the respondent court that the contested will was duly
executed in accordance with law.
Petitioner alleges that her exclusion from the alleged holographic will was without rhyme or reason, being the only surviving
sister of the testatrix with whom she shares an intimate relationship, thus demonstrating the lack of testamentary capacity of
testatrix.
In the case of Pecson v. Coronel, 24 it was held —
The appellants emphasize the fact that family ties in this country are very strongly knit and that the exclusion of a relative from
one's estate is an exceptional case. It is true that the ties of relationship in the Philippines are very strong, but we understand
that cases of preterition of relatives from the inheritance are not rare. The liberty to dispose of one's estate by will when there
are no forced heirs is rendered sacred by the Civil Code in force in the Philippines since 1889...
Article 842 of the Civil Code provides that one who has no compulsory heirs may dispose by will of all his estate or any part of it
in favor of any person having capacity to succeed.
It is within the right of the testatrix not to include her only sister who is not a compulsory heir in her will. Nevertheless, per
testimony of Asuncion Gemperle, the latter had reserved two boxes of jewelry worth P850,000.00 for petitioner. Furthermore,
petitioner's son Francis was instituted as an heir in the contested will.
Petitioner still insists that the fact that in her holographic will the testatrix failed to dispose of all of her estate is an indication of
the unsoundness of her mind.
We cannot subscribe to this contention. Art. 841 of the Civil Code provides —

53
A will shall be valid even though it should not contain an institution of an heir, or such institution should not comprise the
entire estate, and even though the person so instituted should not accept the inheritance or should be incapacitated to
succeed.
In such cases, the testamentary dispositions made in accordance with law shall be complied with and the remainder of the
estate shall pass to the legal heirs.
Thus, the fact that in her holographic will, testatrix disposed of only eleven (11) of her real properties does not invalidate the
will, or is it an indication that the testatrix was of unsound mind. The portion of the estate undisposed of shall pass on to the
heirs of the deceased in intestate succession.
Neither is undue influence present just because blood relatives, other than compulsory heirs have been omitted, for while
blood ties are strong in the Philippines, it is the testator's right to disregard non-compulsory heirs. 25 The fact that some heirs
are more favored than others is proof of neither fraud or undue influence. 26 Diversity of apportionment is the usual reason for
making a testament, otherwise, the decedent might as well die intestate. 27
The contention of the petitioner that the will was obtained by undue influence or improper pressure exerted by the
beneficiaries of the will cannot be sustained on mere conjecture or suspicion; as it is not enough that there was opportunity to
exercise undue influence or a possibility that it may have been exercised. 28 The exercise of improper pressure and undue
influence must be supported by substantial evidence that it was actually exercised. 29
Finally, We quote with approval the observation of the respondent court —
There is likewise no question as to the due execution of the subject Will. To Our minds, the most authentic proof that
decreased had testamentary capacity at the time of the execution of the Will, is the Will itself which according to a report of
one of the two expert witnesses (Exhibits X to X-3) reveals the existence of significant handwriting characteristics such as:
1. Spontaneity, freedom, and speed of writing
xxx xxx xxx
3. good line quality.
4. presence of natural variation... (Exhibit X).
The characteristics of spontaneity, freedom and good line quality could not be achieved by the testatrix if it was true that she
was indeed of unsound mind and/or under undue influence or improper pressure when she the Will.
IN VIEW OF THE FOREGOING CONSIDERATIONS, the petition is DENIED for lack of merit with costs against petitioner. The
decision of respondent court dated August 29, 1986 in toto the decision of the Regional Trial Court of Manila dated March 21,
1985 is hereby declared to be immediately executory.
SO ORDERED.

54
G.R. No. L-16749 January 31, 1963
IN THE MATTER OF THE TESTATE ESTATE OF EDWARD E. CHRISTENSEN, DECEASED.
ADOLFO C. AZNAR, Executor and LUCY CHRISTENSEN, Heir of the deceased, Executor and Heir-appellees,
vs.
HELEN CHRISTENSEN GARCIA, oppositor-appellant.
M. R. Sotelo for executor and heir-appellees.
Leopoldo M. Abellera and Jovito Salonga for oppositor-appellant.
LABRADOR, J.:
This is an appeal from a decision of the Court of First Instance of Davao, Hon. Vicente N. Cusi, Jr., presiding, in Special
Proceeding No. 622 of said court, dated September 14, 1949, approving among things the final accounts of the executor,
directing the executor to reimburse Maria Lucy Christensen the amount of P3,600 paid by her to Helen Christensen Garcia as
her legacy, and declaring Maria Lucy Christensen entitled to the residue of the property to be enjoyed during her lifetime, and
in case of death without issue, one-half of said residue to be payable to Mrs. Carrie Louise C. Borton, etc., in accordance with
the provisions of the will of the testator Edward E. Christensen. The will was executed in Manila on March 5, 1951 and contains
the following provisions:
3. I declare ... that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN (now Mrs. Bernard Daney), who was born in the
Philippines about twenty-eight years ago, and who is now residing at No. 665 Rodger Young Village, Los Angeles, California,
U.S.A.
4. I further declare that I now have no living ascendants, and no descendants except my above named daughter, MARIA LUCY
CHRISTENSEN DANEY.
xxx xxx xxx
7. I give, devise and bequeath unto MARIA HELEN CHRISTENSEN, now married to Eduardo Garcia, about eighteen years of age
and who, notwithstanding the fact that she was baptized Christensen, is not in any way related to me, nor has she been at any
time adopted by me, and who, from all information I have now resides in Egpit, Digos, Davao, Philippines, the sum of THREE
THOUSAND SIX HUNDRED PESOS (P3,600.00), Philippine Currency the same to be deposited in trust for the said Maria Helen
Christensen with the Davao Branch of the Philippine National Bank, and paid to her at the rate of One Hundred Pesos (P100.00),
Philippine Currency per month until the principal thereof as well as any interest which may have accrued thereon, is
exhausted..
xxx xxx xxx
12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said MARIA LUCY CHRISTENSEN DANEY (Mrs.
Bernard Daney), now residing as aforesaid at No. 665 Rodger Young Village, Los Angeles, California, U.S.A., all the income from
the rest, remainder, and residue of my property and estate, real, personal and/or mixed, of whatsoever kind or character, and
wheresoever situated, of which I may be possessed at my death and which may have come to me from any source whatsoever,
during her lifetime: ....
It is in accordance with the above-quoted provisions that the executor in his final account and project of partition ratified the
payment of only P3,600 to Helen Christensen Garcia and proposed that the residue of the estate be transferred to his daughter,
Maria Lucy Christensen.
Opposition to the approval of the project of partition was filed by Helen Christensen Garcia, insofar as it deprives her (Helen) of
her legitime as an acknowledged natural child, she having been declared by Us in G.R. Nos. L-11483-84 an acknowledged
natural child of the deceased Edward E. Christensen. The legal grounds of opposition are (a) that the distribution should be
governed by the laws of the Philippines, and (b) that said order of distribution is contrary thereto insofar as it denies to Helen
Christensen, one of two acknowledged natural children, one-half of the estate in full ownership. In amplification of the above
grounds it was alleged that the law that should govern the estate of the deceased Christensen should not be the internal law of
California alone, but the entire law thereof because several foreign elements are involved, that the forum is the Philippines and
even if the case were decided in California, Section 946 of the California Civil Code, which requires that the domicile of the
decedent should apply, should be applicable. It was also alleged that Maria Helen Christensen having been declared an
acknowledged natural child of the decedent, she is deemed for all purposes legitimate from the time of her birth.
The court below ruled that as Edward E. Christensen was a citizen of the United States and of the State of California at the time
of his death, the successional rights and intrinsic validity of the provisions in his will are to be governed by the law of California,
in accordance with which a testator has the right to dispose of his property in the way he desires, because the right of absolute
dominion over his property is sacred and inviolable (In re McDaniel's Estate, 77 Cal. Appl. 2d 877, 176 P. 2d 952, and In re

55
Kaufman, 117 Cal. 286, 49 Pac. 192, cited in page 179, Record on Appeal). Oppositor Maria Helen Christensen, through counsel,
filed various motions for reconsideration, but these were denied. Hence, this appeal.
The most important assignments of error are as follows:
I
THE LOWER COURT ERRED IN IGNORING THE DECISION OF THE HONORABLE SUPREME COURT THAT HELEN IS THE
ACKNOWLEDGED NATURAL CHILD OF EDWARD E. CHRISTENSEN AND, CONSEQUENTLY, IN DEPRIVING HER OF HER JUST SHARE
IN THE INHERITANCE.
II
THE LOWER COURT ERRED IN ENTIRELY IGNORING AND/OR FAILING TO RECOGNIZE THE EXISTENCE OF SEVERAL FACTORS,
ELEMENTS AND CIRCUMSTANCES CALLING FOR THE APPLICATION OF INTERNAL LAW.
III
THE LOWER COURT ERRED IN FAILING TO RECOGNIZE THAT UNDER INTERNATIONAL LAW, PARTICULARLY UNDER THE RENVOI
DOCTRINE, THE INTRINSIC VALIDITY OF THE TESTAMENTARY DISPOSITION OF THE DISTRIBUTION OF THE ESTATE OF THE
DECEASED EDWARD E. CHRISTENSEN SHOULD BE GOVERNED BY THE LAWS OF THE PHILIPPINES.
IV
THE LOWER COURT ERRED IN NOT DECLARING THAT THE SCHEDULE OF DISTRIBUTION SUBMITTED BY THE EXECUTOR IS
CONTRARY TO THE PHILIPPINE LAWS.
V
THE LOWER COURT ERRED IN NOT DECLARING THAT UNDER THE PHILIPPINE LAWS HELEN CHRISTENSEN GARCIA IS ENTITLED
TO ONE-HALF (1/2) OF THE ESTATE IN FULL OWNERSHIP.
There is no question that Edward E. Christensen was a citizen of the United States and of the State of California at the time of
his death. But there is also no question that at the time of his death he was domiciled in the Philippines, as witness the
following facts admitted by the executor himself in appellee's brief:
In the proceedings for admission of the will to probate, the facts of record show that the deceased Edward E. Christensen was
born on November 29, 1875 in New York City, N.Y., U.S.A.; his first arrival in the Philippines, as an appointed school teacher,
was on July 1, 1901, on board the U.S. Army Transport "Sheridan" with Port of Embarkation as the City of San Francisco, in the
State of California, U.S.A. He stayed in the Philippines until 1904.
In December, 1904, Mr. Christensen returned to the United States and stayed there for the following nine years until 1913,
during which time he resided in, and was teaching school in Sacramento, California.
Mr. Christensen's next arrival in the Philippines was in July of the year 1913. However, in 1928, he again departed the
Philippines for the United States and came back here the following year, 1929. Some nine years later, in 1938, he again
returned to his own country, and came back to the Philippines the following year, 1939.
Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and approved by this Honorable
Court, without prejudice to the parties adducing other evidence to prove their case not covered by this stipulation of facts.
1äwphï1.ñët
Being an American citizen, Mr. Christensen was interned by the Japanese Military Forces in the Philippines during World War II.
Upon liberation, in April 1945, he left for the United States but returned to the Philippines in December, 1945. Appellees
Collective Exhibits "6", CFI Davao, Sp. Proc. 622, as Exhibits "AA", "BB" and "CC-Daney"; Exhs. "MM", "MM-l", "MM-2-Daney"
and p. 473, t.s.n., July 21, 1953.)
In April, 1951, Edward E. Christensen returned once more to California shortly after the making of his last will and testament
(now in question herein) which he executed at his lawyers' offices in Manila on March 5, 1951. He died at the St. Luke's Hospital
in the City of Manila on April 30, 1953. (pp. 2-3)
In arriving at the conclusion that the domicile of the deceased is the Philippines, we are persuaded by the fact that he was born
in New York, migrated to California and resided there for nine years, and since he came to the Philippines in 1913 he returned
to California very rarely and only for short visits (perhaps to relatives), and considering that he appears never to have owned or
acquired a home or properties in that state, which would indicate that he would ultimately abandon the Philippines and make
home in the State of California.

56
Sec. 16. Residence is a term used with many shades of meaning from mere temporary presence to the most permanent abode.
Generally, however, it is used to denote something more than mere physical presence. (Goodrich on Conflict of Laws, p. 29)
As to his citizenship, however, We find that the citizenship that he acquired in California when he resided in Sacramento,
California from 1904 to 1913, was never lost by his stay in the Philippines, for the latter was a territory of the United States (not
a state) until 1946 and the deceased appears to have considered himself as a citizen of California by the fact that when he
executed his will in 1951 he declared that he was a citizen of that State; so that he appears never to have intended to abandon
his California citizenship by acquiring another. This conclusion is in accordance with the following principle expounded by
Goodrich in his Conflict of Laws.
The terms "'residence" and "domicile" might well be taken to mean the same thing, a place of permanent abode. But domicile,
as has been shown, has acquired a technical meaning. Thus one may be domiciled in a place where he has never been. And he
may reside in a place where he has no domicile. The man with two homes, between which he divides his time, certainly resides
in each one, while living in it. But if he went on business which would require his presence for several weeks or months, he
might properly be said to have sufficient connection with the place to be called a resident. It is clear, however, that, if he
treated his settlement as continuing only for the particular business in hand, not giving up his former "home," he could not be a
domiciled New Yorker. Acquisition of a domicile of choice requires the exercise of intention as well as physical presence.
"Residence simply requires bodily presence of an inhabitant in a given place, while domicile requires bodily presence in that
place and also an intention to make it one's domicile." Residence, however, is a term used with many shades of meaning, from
the merest temporary presence to the most permanent abode, and it is not safe to insist that any one use et the only proper
one. (Goodrich, p. 29)
The law that governs the validity of his testamentary dispositions is defined in Article 16 of the Civil Code of the Philippines,
which is as follows:
ART. 16. Real property as well as personal property is subject to the law of the country where it is situated.
However, intestate and testamentary successions, both with respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person
whose succession is under consideration, whatever may be the nature of the property and regardless of the country where said
property may be found.
The application of this article in the case at bar requires the determination of the meaning of the term "national law" is used
therein.
There is no single American law governing the validity of testamentary provisions in the United States, each state of the Union
having its own private law applicable to its citizens only and in force only within the state. The "national law" indicated in Article
16 of the Civil Code above quoted can not, therefore, possibly mean or apply to any general American law. So it can refer to no
other than the private law of the State of California.
The next question is: What is the law in California governing the disposition of personal property? The decision of the court
below, sustains the contention of the executor-appellee that under the California Probate Code, a testator may dispose of his
property by will in the form and manner he desires, citing the case of Estate of McDaniel, 77 Cal. Appl. 2d 877, 176 P. 2d 952.
But appellant invokes the provisions of Article 946 of the Civil Code of California, which is as follows:
If there is no law to the contrary, in the place where personal property is situated, it is deemed to follow the person of its
owner, and is governed by the law of his domicile.
The existence of this provision is alleged in appellant's opposition and is not denied. We have checked it in the California Civil
Code and it is there. Appellee, on the other hand, relies on the case cited in the decision and testified to by a witness. (Only the
case of Kaufman is correctly cited.) It is argued on executor's behalf that as the deceased Christensen was a citizen of the State
of California, the internal law thereof, which is that given in the abovecited case, should govern the determination of the
validity of the testamentary provisions of Christensen's will, such law being in force in the State of California of which
Christensen was a citizen. Appellant, on the other hand, insists that Article 946 should be applicable, and in accordance
therewith and following the doctrine of the renvoi, the question of the validity of the testamentary provision in question should
be referred back to the law of the decedent's domicile, which is the Philippines.
The theory of doctrine of renvoi has been defined by various authors, thus:
The problem has been stated in this way: "When the Conflict of Laws rule of the forum refers a jural matter to a foreign law for
decision, is the reference to the purely internal rules of law of the foreign system; i.e., to the totality of the foreign law minus its
Conflict of Laws rules?"

57
On logic, the solution is not an easy one. The Michigan court chose to accept the renvoi, that is, applied the Conflict of Laws rule
of Illinois which referred the matter back to Michigan law. But once having determined the the Conflict of Laws principle is the
rule looked to, it is difficult to see why the reference back should not have been to Michigan Conflict of Laws. This would have
resulted in the "endless chain of references" which has so often been criticized be legal writers. The opponents of the renvoi
would have looked merely to the internal law of Illinois, thus rejecting the renvoi or the reference back. Yet there seems no
compelling logical reason why the original reference should be the internal law rather than to the Conflict of Laws rule. It is true
that such a solution avoids going on a merry-go-round, but those who have accepted the renvoi theory avoid this inextricabilis
circulas by getting off at the second reference and at that point applying internal law. Perhaps the opponents of the renvoi are a
bit more consistent for they look always to internal law as the rule of reference.
Strangely enough, both the advocates for and the objectors to the renvoi plead that greater uniformity will result from adoption
of their respective views. And still more strange is the fact that the only way to achieve uniformity in this choice-of-law problem
is if in the dispute the two states whose laws form the legal basis of the litigation disagree as to whether the renvoi should be
accepted. If both reject, or both accept the doctrine, the result of the litigation will vary with the choice of the forum. In the
case stated above, had the Michigan court rejected the renvoi, judgment would have been against the woman; if the suit had
been brought in the Illinois courts, and they too rejected the renvoi, judgment would be for the woman. The same result would
happen, though the courts would switch with respect to which would hold liability, if both courts accepted the renvoi.
The Restatement accepts the renvoi theory in two instances: where the title to land is in question, and where the validity of a
decree of divorce is challenged. In these cases the Conflict of Laws rule of the situs of the land, or the domicile of the parties in
the divorce case, is applied by the forum, but any further reference goes only to the internal law. Thus, a person's title to land,
recognized by the situs, will be recognized by every court; and every divorce, valid by the domicile of the parties, will be valid
everywhere. (Goodrich, Conflict of Laws, Sec. 7, pp. 13-14.)
X, a citizen of Massachusetts, dies intestate, domiciled in France, leaving movable property in Massachusetts, England, and
France. The question arises as to how this property is to be distributed among X's next of kin.
Assume (1) that this question arises in a Massachusetts court. There the rule of the conflict of laws as to intestate succession to
movables calls for an application of the law of the deceased's last domicile. Since by hypothesis X's last domicile was France, the
natural thing for the Massachusetts court to do would be to turn to French statute of distributions, or whatever corresponds
thereto in French law, and decree a distribution accordingly. An examination of French law, however, would show that if a
French court were called upon to determine how this property should be distributed, it would refer the distribution to the
national law of the deceased, thus applying the Massachusetts statute of distributions. So on the surface of things the
Massachusetts court has open to it alternative course of action: (a) either to apply the French law is to intestate succession, or
(b) to resolve itself into a French court and apply the Massachusetts statute of distributions, on the assumption that this is what
a French court would do. If it accepts the so-called renvoi doctrine, it will follow the latter course, thus applying its own law.
This is one type of renvoi. A jural matter is presented which the conflict-of-laws rule of the forum refers to a foreign law, the
conflict-of-laws rule of which, in turn, refers the matter back again to the law of the forum. This is renvoi in the narrower sense.
The German term for this judicial process is 'Ruckverweisung.'" (Harvard Law Review, Vol. 31, pp. 523-571.)
After a decision has been arrived at that a foreign law is to be resorted to as governing a particular case, the further question
may arise: Are the rules as to the conflict of laws contained in such foreign law also to be resorted to? This is a question which,
while it has been considered by the courts in but a few instances, has been the subject of frequent discussion by textwriters and
essayists; and the doctrine involved has been descriptively designated by them as the "Renvoyer" to send back, or the
"Ruchversweisung", or the "Weiterverweisung", since an affirmative answer to the question postulated and the operation of
the adoption of the foreign law in toto would in many cases result in returning the main controversy to be decided according to
the law of the forum. ... (16 C.J.S. 872.)
Another theory, known as the "doctrine of renvoi", has been advanced. The theory of the doctrine of renvoi is that the court of
the forum, in determining the question before it, must take into account the whole law of the other jurisdiction, but also its
rules as to conflict of laws, and then apply the law to the actual question which the rules of the other jurisdiction prescribe. This
may be the law of the forum. The doctrine of the renvoi has generally been repudiated by the American authorities. (2 Am. Jur.
296)
The scope of the theory of renvoi has also been defined and the reasons for its application in a country explained by Prof.
Lorenzen in an article in the Yale Law Journal, Vol. 27, 1917-1918, pp. 529-531. The pertinent parts of the article are quoted
herein below:
The recognition of the renvoi theory implies that the rules of the conflict of laws are to be understood as incorporating not only
the ordinary or internal law of the foreign state or country, but its rules of the conflict of laws as well. According to this theory
'the law of a country' means the whole of its law.

58
xxx xxx xxx
Von Bar presented his views at the meeting of the Institute of International Law, at Neuchatel, in 1900, in the form of the
following theses:
(1) Every court shall observe the law of its country as regards the application of foreign laws.
(2) Provided that no express provision to the contrary exists, the court shall respect:
(a) The provisions of a foreign law which disclaims the right to bind its nationals abroad as regards their personal statute, and
desires that said personal statute shall be determined by the law of the domicile, or even by the law of the place where the act
in question occurred.
(b) The decision of two or more foreign systems of law, provided it be certain that one of them is necessarily competent, which
agree in attributing the determination of a question to the same system of law.
xxx xxx xxx
If, for example, the English law directs its judge to distribute the personal estate of an Englishman who has died domiciled in
Belgium in accordance with the law of his domicile, he must first inquire whether the law of Belgium would distribute personal
property upon death in accordance with the law of domicile, and if he finds that the Belgian law would make the distribution in
accordance with the law of nationality — that is the English law — he must accept this reference back to his own law.
We note that Article 946 of the California Civil Code is its conflict of laws rule, while the rule applied in In re Kaufman, Supra, its
internal law. If the law on succession and the conflict of laws rules of California are to be enforced jointly, each in its own
intended and appropriate sphere, the principle cited In re Kaufman should apply to citizens living in the State, but Article 946
should apply to such of its citizens as are not domiciled in California but in other jurisdictions. The rule laid down of resorting to
the law of the domicile in the determination of matters with foreign element involved is in accord with the general principle of
American law that the domiciliary law should govern in most matters or rights which follow the person of the owner.
When a man dies leaving personal property in one or more states, and leaves a will directing the manner of distribution of the
property, the law of the state where he was domiciled at the time of his death will be looked to in deciding legal questions
about the will, almost as completely as the law of situs is consulted in questions about the devise of land. It is logical that, since
the domiciliary rules control devolution of the personal estate in case of intestate succession, the same rules should determine
the validity of an attempted testamentary dispostion of the property. Here, also, it is not that the domiciliary has effect beyond
the borders of the domiciliary state. The rules of the domicile are recognized as controlling by the Conflict of Laws rules at the
situs property, and the reason for the recognition as in the case of intestate succession, is the general convenience of the
doctrine. The New York court has said on the point: 'The general principle that a dispostiton of a personal property, valid at the
domicile of the owner, is valid anywhere, is one of the universal application. It had its origin in that international comity which
was one of the first fruits of civilization, and it this age, when business intercourse and the process of accumulating property
take but little notice of boundary lines, the practical wisdom and justice of the rule is more apparent than ever. (Goodrich,
Conflict of Laws, Sec. 164, pp. 442-443.)
Appellees argue that what Article 16 of the Civil Code of the Philippines pointed out as the national law is the internal law of
California. But as above explained the laws of California have prescribed two sets of laws for its citizens, one for residents
therein and another for those domiciled in other jurisdictions. Reason demands that We should enforce the California internal
law prescribed for its citizens residing therein, and enforce the conflict of laws rules for the citizens domiciled abroad. If we
must enforce the law of California as in comity we are bound to go, as so declared in Article 16 of our Civil Code, then we must
enforce the law of California in accordance with the express mandate thereof and as above explained, i.e., apply the internal
law for residents therein, and its conflict-of-laws rule for those domiciled abroad.
It is argued on appellees' behalf that the clause "if there is no law to the contrary in the place where the property is situated" in
Sec. 946 of the California Civil Code refers to Article 16 of the Civil Code of the Philippines and that the law to the contrary in
the Philippines is the provision in said Article 16 that the national law of the deceased should govern. This contention can not
be sustained. As explained in the various authorities cited above the national law mentioned in Article 16 of our Civil Code is the
law on conflict of laws in the California Civil Code, i.e., Article 946, which authorizes the reference or return of the question to
the law of the testator's domicile. The conflict of laws rule in California, Article 946, Civil Code, precisely refers back the case,
when a decedent is not domiciled in California, to the law of his domicile, the Philippines in the case at bar. The court of the
domicile can not and should not refer the case back to California; such action would leave the issue incapable of determination
because the case will then be like a football, tossed back and forth between the two states, between the country of which the
decedent was a citizen and the country of his domicile. The Philippine court must apply its own law as directed in the conflict of
laws rule of the state of the decedent, if the question has to be decided, especially as the application of the internal law of

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

60
G.R. No. L-23678 June 6, 1967
TESTATE ESTATE OF AMOS G. BELLIS, deceased.
PEOPLE'S BANK and TRUST COMPANY, executor.
MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS, oppositors-appellants,
vs.
EDWARD A. BELLIS, ET AL., heirs-appellees.
Vicente R. Macasaet and Jose D. Villena for oppositors appellants.
Paredes, Poblador, Cruz and Nazareno for heirs-appellees E. A. Bellis, et al.
Quijano and Arroyo for heirs-appellees W. S. Bellis, et al.
J. R. Balonkita for appellee People's Bank & Trust Company.
Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman.
BENGZON, J.P., J.:
This is a direct appeal to Us, upon a question purely of law, from an order of the Court of First Instance of Manila dated April 30,
1964, approving the project of partition filed by the executor in Civil Case No. 37089 therein.1äwphï1.ñët
The facts of the case are as follows:
Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the United States." By his first wife, Mary E. Mallen,
whom he divorced, he had five legitimate children: Edward A. Bellis, George Bellis (who pre-deceased him in infancy), Henry A.
Bellis, Alexander Bellis and Anna Bellis Allsman; by his second wife, Violet Kennedy, who survived him, he had three legitimate
children: Edwin G. Bellis, Walter S. Bellis and Dorothy Bellis; and finally, he had three illegitimate children: Amos Bellis, Jr.,
Maria Cristina Bellis and Miriam Palma Bellis.
On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that after all taxes, obligations, and
expenses of administration are paid for, his distributable estate should be divided, in trust, in the following order and manner:
(a) $240,000.00 to his first wife, Mary E. Mallen; (b) P120,000.00 to his three illegitimate children, Amos Bellis, Jr., Maria
Cristina Bellis, Miriam Palma Bellis, or P40,000.00 each and (c) after the foregoing two items have been satisfied, the remainder
shall go to his seven surviving children by his first and second wives, namely: Edward A. Bellis, Henry A. Bellis, Alexander Bellis
and Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis, and Dorothy E. Bellis, in equal shares.1äwphï1.ñët
Subsequently, or on July 8, 1958, Amos G. Bellis died a resident of San Antonio, Texas, U.S.A. His will was admitted to probate in
the Court of First Instance of Manila on September 15, 1958.
The People's Bank and Trust Company, as executor of the will, paid all the bequests therein including the amount of
$240,000.00 in the form of shares of stock to Mary E. Mallen and to the three (3) illegitimate children, Amos Bellis, Jr., Maria
Cristina Bellis and Miriam Palma Bellis, various amounts totalling P40,000.00 each in satisfaction of their respective legacies, or
a total of P120,000.00, which it released from time to time according as the lower court approved and allowed the various
motions or petitions filed by the latter three requesting partial advances on account of their respective legacies.
On January 8, 1964, preparatory to closing its administration, the executor submitted and filed its "Executor's Final Account,
Report of Administration and Project of Partition" wherein it reported, inter alia, the satisfaction of the legacy of Mary E.
Mallen by the delivery to her of shares of stock amounting to $240,000.00, and the legacies of Amos Bellis, Jr., Maria Cristina
Bellis and Miriam Palma Bellis in the amount of P40,000.00 each or a total of P120,000.00. In the project of partition, the
executor — pursuant to the "Twelfth" clause of the testator's Last Will and Testament — divided the residuary estate into
seven equal portions for the benefit of the testator's seven legitimate children by his first and second marriages.
On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective oppositions to the project of partition
on the ground that they were deprived of their legitimes as illegitimate children and, therefore, compulsory heirs of the
deceased.
Amos Bellis, Jr. interposed no opposition despite notice to him, proof of service of which is evidenced by the registry receipt
submitted on April 27, 1964 by the executor.1
After the parties filed their respective memoranda and other pertinent pleadings, the lower court, on April 30, 1964, issued an
order overruling the oppositions and approving the executor's final account, report and administration and project of partition.
Relying upon Art. 16 of the Civil Code, it applied the national law of the decedent, which in this case is Texas law, which did not
provide for legitimes.
Their respective motions for reconsideration having been denied by the lower court on June 11, 1964, oppositors-appellants
appealed to this Court to raise the issue of which law must apply — Texas law or Philippine law.

61
In this regard, the parties do not submit the case on, nor even discuss, the doctrine of renvoi, applied by this Court in Aznar v.
Christensen Garcia, L-16749, January 31, 1963. Said doctrine is usually pertinent where the decedent is a national of one
country, and a domicile of another. In the present case, it is not disputed that the decedent was both a national of Texas and a
domicile thereof at the time of his death.2 So that even assuming Texas has a conflict of law rule providing that the domiciliary
system (law of the domicile) should govern, the same would not result in a reference back (renvoi) to Philippine law, but would
still refer to Texas law. Nonetheless, if Texas has a conflicts rule adopting the situs theory (lex rei sitae) calling for the
application of the law of the place where the properties are situated, renvoi would arise, since the properties here involved are
found in the Philippines. In the absence, however, of proof as to the conflict of law rule of Texas, it should not be presumed
different from ours.3 Appellants' position is therefore not rested on the doctrine of renvoi. As stated, they never invoked nor
even mentioned it in their arguments. Rather, they argue that their case falls under the circumstances mentioned in the third
paragraph of Article 17 in relation to Article 16 of the Civil Code.
Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the decedent, in intestate or
testamentary successions, with regard to four items: (a) the order of succession; (b) the amount of successional rights; (e) the
intrinsic validity of the provisions of the will; and (d) the capacity to succeed. They provide that —
ART. 16. Real property as well as personal property is subject to the law of the country where it is situated.
However, intestate and testamentary successions, both with respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person
whose succession is under consideration, whatever may he the nature of the property and regardless of the country wherein
said property may be found.
ART. 1039. Capacity to succeed is governed by the law of the nation of the decedent.
Appellants would however counter that Art. 17, paragraph three, of the Civil Code, stating that —
Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and
good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed
upon in a foreign country.
prevails as the exception to Art. 16, par. 2 of the Civil Code afore-quoted. This is not correct. Precisely, Congress deleted the
phrase, "notwithstanding the provisions of this and the next preceding article" when they incorporated Art. 11 of the old Civil
Code as Art. 17 of the new Civil Code, while reproducing without substantial change the second paragraph of Art. 10 of the old
Civil Code as Art. 16 in the new. It must have been their purpose to make the second paragraph of Art. 16 a specific provision in
itself which must be applied in testate and intestate succession. As further indication of this legislative intent, Congress added a
new provision, under Art. 1039, which decrees that capacity to succeed is to be governed by the national law of the decedent.
It is therefore evident that whatever public policy or good customs may be involved in our System of legitimes, Congress has
not intended to extend the same to the succession of foreign nationals. For it has specifically chosen to leave, inter alia, the
amount of successional rights, to the decedent's national law. Specific provisions must prevail over general ones.
Appellants would also point out that the decedent executed two wills — one to govern his Texas estate and the other his
Philippine estate — arguing from this that he intended Philippine law to govern his Philippine estate. Assuming that such was
the decedent's intention in executing a separate Philippine will, it would not alter the law, for as this Court ruled in Miciano v.
Brimo, 50 Phil. 867, 870, a provision in a foreigner's will to the effect that his properties shall be distributed in accordance with
Philippine law and not with his national law, is illegal and void, for his national law cannot be ignored in regard to those matters
that Article 10 — now Article 16 — of the Civil Code states said national law should govern.
The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and that under the laws of Texas,
there are no forced heirs or legitimes. Accordingly, since the intrinsic validity of the provision of the will and the amount of
successional rights are to be determined under Texas law, the Philippine law on legitimes cannot be applied to the testacy of
Amos G. Bellis.
Wherefore, the order of the probate court is hereby affirmed in toto, with costs against appellants. So ordered.

62
G.R. No. 108581 December 8, 1999
LOURDES L. DOROTHEO, petitioner,
vs.
COURT OF APPEALS, NILDA D. QUINTANA, for Herself and as Attorney-in-Fact of VICENTE DOROTHEO and JOSE DOROTHEO,
respondents.

YNARES-SANTIAGO, J.:
May a last will and testament admitted to probate but declared intrinsically void in an order that has become final and
executory still be given effect? This is the issue that arose from the following antecedents:
Private respondents were the legitimate children of Alejandro Dorotheo and Aniceta Reyes. The latter died in 1969 without her
estate being settled. Alejandro died thereafter. Sometime in 1977, after Alejandro's death, petitioner, who claims to have taken
care of Alejandro before he died, filed a special proceeding for the probate of the latter's last will and testament. In 1981, the
court issued an order admitting Alejandro's will to probate. Private respondents did not appeal from said order. In 1983, they
filed a "Motion To Declare The Will Intrinsically Void." The trial court granted the motion and issued an order, the dispositive
portion of which reads:
WHEREFORE, in view of the foregoing, Order is hereby issued declaring Lourdes Legaspi not the wife of the late Alejandro
Dorotheo, the provisions of the last will and testament of Alejandro Dorotheo as intrinsically void, and declaring the oppositors
Vicente Dorotheo, Jose Dorotheo and Nilda Dorotheo Quintana as the only heirs of the late spouses Alejandro Dorotheo and
Aniceta Reyes, whose respective estates shall be liquidated and distributed according to the laws on intestacy upon payment of
estate and other taxes due to the government.1
Petitioner moved for reconsideration arguing that she is entitled to some compensation since she took care of Alejandro prior
to his death although she admitted that they were not married to each other. Upon denial of her motion for reconsideration,
petitioner appealed to the Court of Appeals, but the same was dismissed for failure to file appellant's brief within the extended
period
granted.2 This dismissal became final and executory on February 3, 1989 and a corresponding entry of judgment was forthwith
issued by the Court of Appeals on May 16, 1989. A writ of execution was issued by the lower court to implement the final and
executory Order. Consequently, private respondents filed several motions including a motion to compel petitioner to surrender
to them the Transfer Certificates of Titles (TCT) covering the properties of the late Alejandro. When petitioner refused to
surrender the TCT's, private respondents filed a motion for cancellation of said titles and for issuance of new titles in their
names. Petitioner opposed the motion.
An Order was issued on November 29, 1990 by Judge Zain B. Angas setting aside the final and executory Order dated January
30, 1986, as well as the Order directing the issuance of the writ of execution, on the ground that the order was merely
"interlocutory", hence not final in character. The court added that the dispositive portion of the said Order even directs the
distribution of the estate of the deceased spouses. Private respondents filed a motion for reconsideration which was denied in
an Order dated February 1, 1991. Thus, private respondents filed a petition before the Court of Appeals, which nullified the two
assailed Orders dated November 29, 1990 and February 1, 1991.
Aggrieved, petitioner instituted a petition for review arguing that the case filed by private respondents before the Court of
Appeals was a petition under Rule 65 on the ground of grave abuse of discretion or lack of jurisdiction. Petitioner contends that
in issuing the two assailed orders, Judge Angas cannot be said to have no jurisdiction because he was particularly designated to
hear the case. Petitioner likewise assails the Order of the Court of Appeals upholding the validity of the January 30, 1986 Order
which declared the intrinsic invalidity of Alejandro's will that was earlier admitted to probate.
Petitioner also filed a motion to reinstate her as executrix of the estate of the late Alejandro and to maintain the status quo or
lease of the premises thereon to third parties.3 Private respondents opposed the motion on the ground that petitioner has no
interest in the estate since she is not the lawful wife of the late Alejandro.
The petition is without merit. A final and executory decision or order can no longer be disturbed or reopened no matter how
erroneous it may be. In setting aside the January 30, 1986 Order that has attained finality, the trial court in effect nullified the
entry of judgment made by the Court of Appeals. It is well settled that a lower court cannot reverse or set aside decisions or
orders of a superior court, for to do so would be to negate the hierarchy of courts and nullify the essence of review. It has been
ruled that a final judgment on probated will, albeit erroneous, is binding on the whole world. 4
It has been consistently held that if no appeal is taken in due time from a judgment or order of the trial court, the same attains
finality by mere lapse of time. Thus, the order allowing the will became final and the question determined by the court in such
order can no longer be raised anew, either in the same proceedings or in a different motion. The matters of due execution of

63
the will and the capacity of the testator acquired the character of res judicata and cannot again be brought into question, all
juridical questions in connection therewith being for once and forever closed.5 Such final order makes the will conclusive
against the whole world as to its extrinsic validity and due execution.6
It should be noted that probate proceedings deals generally with the extrinsic validity of the will sought to be probated,7
particularly on three aspects:
n whether the will submitted is indeed, the decedent's last will and testament;
n compliance with the prescribed formalities for the execution of wills;
n the testamentary capacity of the testator; 8
n and the due execution of the last will and testament.9
Under the Civil Code, due execution includes a determination of whether the testator was of sound and disposing mind at the
time of its execution, that he had freely executed the will and was not acting under duress, fraud, menace or undue influence
and that the will is genuine and not a forgery, 10 that he was of the proper testamentary age and that he is a person not
expressly prohibited by law from making a will. 11
The intrinsic validity is another matter and questions regarding the same may still be raised even after the will has been
authenticated. 12 Thus, it does not necessarily follow that an extrinsically valid last will and testament is always intrinsically
valid. Even if the will was validly executed, if the testator provides for dispositions that deprives or impairs the lawful heirs of
their legitime or rightful inheritance according to the laws on succession, 13 the unlawful provisions/dispositions thereof
cannot be given effect. This is specially so when the courts had already determined in a final and executory decision that the
will is intrinsically void. Such determination having attained that character of finality is binding on this Court which will no
longer be disturbed. Not that this Court finds the will to be intrinsically valid, but that a final and executory decision of which
the party had the opportunity to challenge before the higher tribunals must stand and should no longer be reevaluated. Failure
to avail of the remedies provided by law constitutes waiver. And if the party does not avail of other remedies despite its belief
that it was aggrieved by a decision or court action, then it is deemed to have fully agreed and is satisfied with the decision or
order. As early as 1918, it has been declared that public policy and sound practice demand that, at the risk of occasional errors,
judgments of courts must at some point of time fixed by law 14 become final otherwise there will be no end to litigation.
Interes rei publicae ut finis sit litium — the very object of which the courts were constituted was to put an end to controversies.
15 To fulfill this purpose and to do so speedily, certain time limits, more or less arbitrary, have to be set up to spur on the
slothful. 16 The only instance where a party interested in a probate proceeding may have a final liquidation set aside is when he
is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence, 17
which circumstances do not concur herein.
Petitioner was privy to the suit calling for the declaration of the intrinsic invalidity of the will, as she precisely appealed from an
unfavorable order therefrom. Although the final and executory Order of January 30, 1986 wherein private respondents were
declared as the only heirs do not bind those who are not parties thereto such as the alleged illegitimate son of the testator, the
same constitutes res judicata with respect to those who were parties to the probate proceedings. Petitioner cannot again raise
those matters anew for relitigation otherwise that would amount to forum-shopping. It should be remembered that forum
shopping also occurs when the same issue had already been resolved adversely by some other court. 18 It is clear from the
executory order that the estates of Alejandro and his spouse should be distributed according to the laws of intestate
succession.
Petitioner posits that the January 30, 1986 Order is merely interlocutory, hence it can still be set aside by the trial court. In
support thereof, petitioner argues that "an order merely declaring who are heirs and the shares to which set of heirs is entitled
cannot be the basis of execution to require delivery of shares from one person to another particularly when no project of
partition has been filed." 19 The trial court declared in the January 30, 1986 Order that petitioner is not the legal wife of
Alejandro, whose only heirs are his three legitimate children (petitioners herein), and at the same time it nullified the will. But it
should be noted that in the same Order, the trial court also said that the estate of the late spouses be distributed according to
the laws of intestacy. Accordingly, it has no option but to implement that order of intestate distribution and not to reopen and
again re-examine the intrinsic provisions of the same will.
It can be clearly inferred from Article 960 of the Civil Code, on the law of successional rights that testacy is preferred to
intestacy. 20 But before there could be testate distribution, the will must pass the scrutinizing test and safeguards provided by
law considering that the deceased testator is no longer available to prove the voluntariness of his actions, aside from the fact
that the transfer of the estate is usually onerous in nature and that no one is presumed to give — Nemo praesumitur donare. 21
No intestate distribution of the estate can be done until and unless the will had failed to pass both its extrinsic and intrinsic
validity. If the will is extrinsically void, the rules of intestacy apply regardless of the intrinsic validity thereof. If it is extrinsically
valid, the next test is to determine its intrinsic validity — that is whether the provisions of the will are valid according to the

64
laws of succession. In this case, the court had ruled that the will of Alejandro was extrinsically valid but the intrinsic provisions
thereof were void. Thus, the rules of intestacy apply as correctly held by the trial court.
Furthermore, Alejandro's disposition in his will of the alleged share in the conjugal properties of his late spouse, whom he
described as his "only beloved wife", is not a valid reason to reverse a final and executory order. Testamentary dispositions of
properties not belonging exclusively to the testator or properties which are part of the conjugal regime cannot be given effect.
Matters with respect to who owns the properties that were disposed of by Alejandro in the void will may still be properly
ventilated and determined in the intestate proceedings for the settlement of his and that of his late spouse's estate.
Petitioner's motion for appointment as administratrix is rendered moot considering that she was not married to the late
Alejandro and, therefore, is not an heir.
WHEREFORE, the petition is DENIED and the decision appealed from is AFFIRMED.
SO ORDERED.

65
G.R. No. 122880 April 12, 2006
FELIX AZUELA, Petitioner,
vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO G. CASTILLO, Respondents.
DECISION
TINGA, J.:
The core of this petition is a highly defective notarial will, purportedly executed by Eugenia E. Igsolo (decedent), who died on 16
December 1982 at the age of 80. In refusing to give legal recognition to the due execution of this document, the Court is
provided the opportunity to assert a few important doctrinal rules in the execution of notarial wills, all self-evident in view of
Articles 805 and 806 of the Civil Code.
A will whose attestation clause does not contain the number of pages on which the will is written is fatally defective. A will
whose attestation clause is not signed by the instrumental witnesses is fatally defective. And perhaps most importantly, a
will which does not contain an acknowledgment, but a mere jurat, is fatally defective. Any one of these defects is sufficient
to deny probate. A notarial will with all three defects is just aching for judicial rejection.
There is a distinct and consequential reason the Civil Code provides a comprehensive catalog of imperatives for the proper
execution of a notarial will. Full and faithful compliance with all the detailed requisites under Article 805 of the Code leave little
room for doubt as to the validity in the due execution of the notarial will. Article 806 likewise imposes another safeguard to the
validity of notarial wills — that they be acknowledged before a notary public by the testator and the witnesses. A notarial will
executed with indifference to these two codal provisions opens itself to nagging questions as to its legitimacy.
The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial Court (RTC) of Manila. The petition
filed by petitioner Felix Azuela sought to admit to probate the notarial will of Eugenia E. Igsolo, which was notarized on 10 June
1981. Petitioner is the son of the cousin of the decedent.
The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full:
HULING HABILIN NI EUGENIA E. IGSOLO
SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila, pitongput siyam (79) na gulang, nasa hustong
pagi-isip, pag-unawa at memoria ay nag-hahayag na ito na ang aking huling habilin at testamento, at binabali wala ko lahat ang
naunang ginawang habilin o testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong sa kaugalian at patakaran ng simbahang
katoliko at ang taga-pag-ingat (Executor) ng habiling ito ay magtatayo ng bantayog upang silbing ala-ala sa akin ng aking pamilya
at kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking pamangkin na si Felix Azuela, na siyang nag-alaga
sa akin sa mahabang panahon, yaong mga bahay na nakatirik sa lote numero 28, Block 24 at nakapangalan sa Pechaten
Korporasyon, ganoon din ibinibigay ko ang lahat ng karapatan sa bahay na nakatirik sa inoopahan kong lote, numero 43, Block
24 na pag-aari ng Pechaten Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at lupa na nasa 500
San Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix Azuela at ang pagkakaloob kong ito ay walang pasubali’t at
kondiciones;
Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling habiling ito at kagustuhan ko rin na hindi na
kailanman siyang mag-lagak ng piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981.
(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)
PATUNAY NG MGA SAKSI
Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni Eugenia E. Igsolo,
tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng
kasulatang nabanggit at sa kaliwang panig ng lahat at bawa’t dahon, sa harap ng lahat at bawa’t sa amin, at kami namang mga
saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa ilalim ng nasabing kasulatan
at sa kaliwang panig ng lahat at bawa’t dahon ng kasulatan ito.

66
EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.
QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981
LAMBERTO C. LEAÑO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981
JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng Maynila.
(Sgd.)
PETRONIO Y. BAUTISTA
Doc. No. 1232 ; NOTARIO PUBLIKO
Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-81
The three named witnesses to the will affixed their signatures on the left-hand margin of both pages of the will, but not at the
bottom of the attestation clause.
The probate petition adverted to only two (2) heirs, legatees and devisees of the decedent, namely: petitioner himself, and one
Irene Lynn Igsolo, who was alleged to have resided abroad. Petitioner prayed that the will be allowed, and that letters
testamentary be issued to the designated executor, Vart Prague.
The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented herself as the attorney-in-fact of "the 12
legitimate heirs" of the decedent.2 Geralda Castillo claimed that the will is a forgery, and that the true purpose of its emergence
was so it could be utilized as a defense in several court cases filed by oppositor against petitioner, particularly for forcible entry
and usurpation of real property, all centering on petitioner’s right to occupy the properties of the decedent. 3 It also asserted
that contrary to the representations of petitioner, the decedent was actually survived by 12 legitimate heirs, namely her
grandchildren, who were then residing abroad. Per records, it was subsequently alleged that decedent was the widow of
Bonifacio Igsolo, who died in 1965,4 and the mother of a legitimate child, Asuncion E. Igsolo, who predeceased her mother by
three (3) months.5
Oppositor Geralda Castillo also argued that the will was not executed and attested to in accordance with law. She pointed out
that decedent’s signature did not appear on the second page of the will, and the will was not properly acknowledged. These
twin arguments are among the central matters to this petition.
After due trial, the RTC admitted the will to probate, in an Order dated 10 August 1992.6 The RTC favorably took into account
the testimony of the three (3) witnesses to the will, Quirino Agrava, Lamberto Leano, and Juanito Estrada. The RTC also called
to fore "the modern tendency in respect to the formalities in the execution of a will x x x with the end in view of giving the
testator more freedom in expressing his last wishes;"7 and from this perspective, rebutted oppositor’s arguments that the will
was not properly executed and attested to in accordance with law.
After a careful examination of the will and consideration of the testimonies of the subscribing and attesting witnesses, and
having in mind the modern tendency in respect to the formalities in the execution of a will, i.e., the liberalization of the
interpretation of the law on the formal requirements of a will with the end in view of giving the testator more freedom in
expressing his last wishes, this Court is persuaded to rule that the will in question is authentic and had been executed by the
testatrix in accordance with law.
On the issue of lack of acknowledgement, this Court has noted that at the end of the will after the signature of the testatrix, the
following statement is made under the sub-title, "Patunay Ng Mga Saksi":

67
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni Eugenia N. Igsolo,
tagapagmana na siya niyang Huling Habilin, ngayong ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng
kasulatang nabanggit at sa kaliwang panig ng lahat at bawa’t dahon, sa harap ng lahat at bawa’t sa amin, at kami namang mga
saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa ilalim ng nasabing kasulatan
at sa kaliwang panig ng lahat at bawa’t dahon ng kasulatan ito."
The aforequoted declaration comprises the attestation clause and the acknowledgement and is considered by this Court as a
substantial compliance with the requirements of the law.
On the oppositor’s contention that the attestation clause was not signed by the subscribing witnesses at the bottom thereof,
this Court is of the view that the signing by the subscribing witnesses on the left margin of the second page of the will
containing the attestation clause and acknowledgment, instead of at the bottom thereof, substantially satisfies the purpose of
identification and attestation of the will.
With regard to the oppositor’s argument that the will was not numbered correlatively in letters placed on upper part of each
page and that the attestation did not state the number of pages thereof, it is worthy to note that the will is composed of only
two pages. The first page contains the entire text of the testamentary dispositions, and the second page contains the last
portion of the attestation clause and acknowledgement. Such being so, the defects are not of a serious nature as to invalidate
the will. For the same reason, the failure of the testatrix to affix her signature on the left margin of the second page, which
contains only the last portion of the attestation clause and acknowledgment is not a fatal defect.
As regards the oppositor’s assertion that the signature of the testatrix on the will is a forgery, the testimonies of the three
subscribing witnesses to the will are convincing enough to establish the genuineness of the signature of the testatrix and the
due execution of the will.8
The Order was appealed to the Court of Appeals by Ernesto Castillo, who had substituted his since deceased mother-in-law,
Geralda Castillo. In a Decision dated 17 August 1995, the Court of Appeals reversed the trial court and ordered the dismissal of
the petition for probate.9 The Court of Appeals noted that the attestation clause failed to state the number of pages used in the
will, thus rendering the will void and undeserving of probate.10
Hence, the present petition.
Petitioner argues that the requirement under Article 805 of the Civil Code that "the number of pages used in a notarial will be
stated in the attestation clause" is merely directory, rather than mandatory, and thus susceptible to what he termed as "the
substantial compliance rule."11
The solution to this case calls for the application of Articles 805 and 806 of the Civil Code, which we replicate in full.
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by
three or more credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as
aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in
letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the
will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the
instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the
testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.
Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not
be required to retain a copy of the will, or file another with the office of the Clerk of Court.
The appellate court, in its Decision, considered only one defect, the failure of the attestation clause to state the number of
pages of the will. But an examination of the will itself reveals several more deficiencies.
As admitted by petitioner himself, the attestation clause fails to state the number of pages of the will.12 There was an
incomplete attempt to comply with this requisite, a space having been allotted for the insertion of the number of pages in the
attestation clause. Yet the blank was never filled in; hence, the requisite was left uncomplied with.
The Court of Appeals pounced on this defect in reversing the trial court, citing in the process Uy Coque v. Navas L. Sioca13 and In
re: Will of Andrada.14 In Uy Coque, the Court noted that among the defects of the will in question was the failure of the
attestation clause to state the number of pages contained in the will.15 In ruling that the will could not be admitted to probate,

68
the Court made the following consideration which remains highly relevant to this day: "The purpose of requiring the number of
sheets to be stated in the attestation clause is obvious; the document might easily be so prepared that the removal of a sheet
would completely change the testamentary dispositions of the will and in the absence of a statement of the total number of
sheets such removal might be effected by taking out the sheet and changing the numbers at the top of the following sheets
or pages. If, on the other hand, the total number of sheets is stated in the attestation clause the falsification of the document
will involve the inserting of new pages and the forging of the signatures of the testator and witnesses in the margin, a matter
attended with much greater difficulty."16
The case of In re Will of Andrada concerned a will the attestation clause of which failed to state the number of sheets or pages
used. This consideration alone was sufficient for the Court to declare "unanim[ity] upon the point that the defect pointed out in
the attesting clause is fatal."17 It was further observed that "it cannot be denied that the x x x requirement affords additional
security against the danger that the will may be tampered with; and as the Legislature has seen fit to prescribe this
requirement, it must be considered material."18
Against these cited cases, petitioner cites Singson v. Florentino19 and Taboada v. Hon. Rosal,20 wherein the Court allowed
probate to the wills concerned therein despite the fact that the attestation clause did not state the number of pages of the will.
Yet the appellate court itself considered the import of these two cases, and made the following distinction which petitioner is
unable to rebut, and which we adopt with approval:
Even a cursory examination of the Will (Exhibit "D"), will readily show that the attestation does not state the number of pages
used upon which the will is written. Hence, the Will is void and undeserving of probate.
We are not impervious of the Decisions of the Supreme Court in "Manuel Singson versus Emilia Florentino, et al., 92 Phil. 161
and Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA 195," to the effect that a will may still be valid even if the
attestation does not contain the number of pages used upon which the Will is written. However, the Decisions of the Supreme
Court are not applicable in the aforementioned appeal at bench. This is so because, in the case of "Manuel Singson versus
Emilia Florentino, et al., supra," although the attestation in the subject Will did not state the number of pages used in the will,
however, the same was found in the last part of the body of the Will:
"x x x
The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which requires that the
attestation clause shall state the number of pages or sheets upon which the will is written, which requirement has been held to
be mandatory as an effective safeguard against the possibility of interpolation or omission of some of the pages of the will to
the prejudice of the heirs to whom the property is intended to be bequeathed (In re Will of Andrada, 42 Phil. 180; Uy Coque vs.
Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil.
611). The ratio decidendi of these cases seems to be that the attestation clause must contain a statement of the number of
sheets or pages composing the will and that if this is missing or is omitted, it will have the effect of invalidating the will if the
deficiency cannot be supplied, not by evidence aliunde, but by a consideration or examination of the will itself. But here the
situation is different. While the attestation clause does not state the number of sheets or pages upon which the will is written,
however, the last part of the body of the will contains a statement that it is composed of eight pages, which circumstance in our
opinion takes this case out of the rigid rule of construction and places it within the realm of similar cases where a broad and
more liberal view has been adopted to prevent the will of the testator from being defeated by purely technical considerations."
(page 165-165, supra) (Underscoring supplied)
In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial acknowledgement in the Will states the number of
pages used in the:
"x x x
We have examined the will in question and noticed that the attestation clause failed to state the number of pages used in
writing the will. This would have been a fatal defect were it not for the fact that, in this case, it is discernible from the entire will
that it is really and actually composed of only two pages duly signed by the testatrix and her instrumental witnesses. As earlier
stated, the first page which contains the entirety of the testamentary dispositions is signed by the testatrix at the end or at the
bottom while the instrumental witnesses signed at the left margin. The other page which is marked as "Pagina dos" comprises
the attestation clause and the acknowledgment. The acknowledgment itself states that "this Last Will and Testament consists of
two pages including this page" (pages 200-201, supra) (Underscoring supplied).
However, in the appeal at bench, the number of pages used in the will is not stated in any part of the Will. The will does not
even contain any notarial acknowledgment wherein the number of pages of the will should be stated.21
Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code in 1950, at a time when the statutory
provision governing the formal requirement of wills was Section

69
618 of the Code of Civil Procedure.22 Reliance on these cases remains apropos, considering that the requirement that the
attestation state the number of pages of the will is extant from Section 618.23 However, the enactment of the Civil Code in 1950
did put in force a rule of interpretation of the requirements of wills, at least insofar as the attestation clause is concerned, that
may vary from the philosophy that governed these two cases. Article 809 of the Civil Code states: "In the absence of bad faith,
forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the
language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial
compliance with all the requirements of article 805."
In the same vein, petitioner cites the report of the Civil Code Commission, which stated that "the underlying and fundamental
objective permeating the provisions on the [law] on [wills] in this project consists in the [liberalization] of the manner of their
execution with the end in view of giving the testator more [freedom] in [expressing] his last wishes. This objective is in accord
with the [modern tendency] in respect to the formalities in the execution of wills."24 However, petitioner conveniently omits
the qualification offered by the Code Commission in the very same paragraph he cites from their report, that such liberalization
be "but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper
pressure and influence upon the testator."25
Caneda v. Court of Appeals26 features an extensive discussion made by Justice Regalado, speaking for the Court on the
conflicting views on the manner of interpretation of the legal formalities required in the execution of the attestation clause in
wills.27 Uy Coque and Andrada are cited therein, along with several other cases, as examples of the application of the rule of
strict construction.28 However, the Code Commission opted to recommend a more liberal construction through the "substantial
compliance rule" under Article 809. A cautionary note was struck though by Justice J.B.L. Reyes as to how Article 809 should be
applied:
x x x The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself: whether all
the pages are consecutively numbered; whether the signatures appear in each and every page; whether the subscribing
witnesses are three or the will was notarized. All these are facts that the will itself can reveal, and defects or even omissions
concerning them in the attestation clause can be safely disregarded. But the total number of pages, and whether all persons
required to sign did so in the presence of each other must substantially appear in the attestation clause, being the only check
against perjury in the probate proceedings.29 (Emphasis supplied.)
The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed decision, considering that the failure to state
the number of pages of the will in the attestation clause is one of the defects which cannot be simply disregarded. In Caneda
itself, the Court refused to allow the probate of a will whose attestation clause failed to state that the witnesses subscribed
their respective signatures to the will in the presence of the testator and of each other,30 the other omission cited by Justice
J.B.L. Reyes which to his estimation cannot be lightly disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that omission which can be supplied by an
examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and, correspondingly, would
not obstruct the allowance to probate of the will being assailed. However, those omissions which cannot be supplied except by
evidence aliunde would result in the invalidation of the attestation clause and ultimately, of the will itself."31 Thus, a failure by
the attestation clause to state that the testator signed every page can be liberally construed, since that fact can be checked by a
visual examination; while a failure by the attestation clause to state that the witnesses signed in one another’s presence should
be considered a fatal flaw since the attestation is the only textual guarantee of compliance.32
The failure of the attestation clause to state the number of pages on which the will was written remains a fatal flaw, despite
Article 809. The purpose of the law in requiring the clause to state the number of pages on which the will is written is to
safeguard against possible interpolation or omission of one or some of its pages and to prevent any increase or decrease in the
pages.33 The failure to state the number of pages equates with the absence of an averment on the part of the instrumental
witnesses as to how many pages consisted the will, the execution of which they had ostensibly just witnessed and subscribed
to. Following Caneda, there is substantial compliance with this requirement if the will states elsewhere in it how many pages it
is comprised of, as was the situation in Singson and Taboada. However, in this case, there could have been no substantial
compliance with the requirements under Article 805 since there is no statement in the attestation clause or anywhere in the
will itself as to the number of pages which comprise the will.
At the same time, Article 809 should not deviate from the need to comply with the formal requirements as enumerated under
Article 805. Whatever the inclinations of the members of the Code Commission in incorporating Article 805, the fact remains
that they saw fit to prescribe substantially the same formal requisites as enumerated in Section 618 of the Code of Civil
Procedure, convinced that these remained effective safeguards against the forgery or intercalation of notarial wills. 34
Compliance with these requirements, however picayune in impression, affords the public a high degree of comfort that the
testator himself or herself had decided to convey property post mortem in the manner established in the will.35 The
transcendent legislative intent, even as expressed in the cited comments of the Code Commission, is for the fruition of the
testator’s incontestable desires, and not for the indulgent admission of wills to probate.

70
The Court could thus end here and affirm the Court of Appeals. However, an examination of the will itself reveals a couple of
even more critical defects that should necessarily lead to its rejection.
For one, the attestation clause was not signed by the instrumental witnesses. While the signatures of the instrumental
witnesses appear on the left-hand margin of the will, they do not appear at the bottom of the attestation clause which after all
consists of their averments before the notary public.
Cagro v. Cagro36 is material on this point. As in this case, "the signatures of the three witnesses to the will do not appear at the
bottom of the attestation clause, although the page containing the same is signed by the witnesses on the left-hand margin."37
While three (3) Justices38 considered the signature requirement had been substantially complied with, a majority of six (6),
speaking through Chief Justice Paras, ruled that the attestation clause had not been duly signed, rendering the will fatally
defective.
There is no question that the signatures of the three witnesses to the will do not appear at the bottom of the attestation clause,
although the page containing the same is signed by the witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The attestation clause is "a memorandum of the facts
attending the execution of the will" required by law to be made by the attesting witnesses, and it must necessarily bear their
signatures. An unsigned attestation clause cannot be considered as an act of the witnesses, since the omission of their
signatures at the bottom thereof negatives their participation.
The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin conform substantially to
the law and may be deemed as their signatures to the attestation clause. This is untenable, because said signatures are in
compliance with the legal mandate that the will be signed on the left-hand margin of all its pages. If an attestation clause not
signed by the three witnesses at the bottom thereof, be admitted as sufficient, it would be easy to add such clause to a will on a
subsequent occasion and in the absence of the testator and any or all of the witnesses. 39
The Court today reiterates the continued efficacy of Cagro. Article 805 particularly segregates the requirement that the
instrumental witnesses sign each page of the will, from the requisite that the will be "attested and subscribed by [the
instrumental witnesses]." The respective intents behind these two classes of signature are distinct from each other. The
signatures on the left-hand corner of every page signify, among others, that the witnesses are aware that the page they are
signing forms part of the will. On the other hand, the signatures to the attestation clause establish that the witnesses are
referring to the statements contained in the attestation clause itself. Indeed, the attestation clause is separate and apart from
the disposition of the will. An unsigned attestation clause results in an unattested will. Even if the instrumental witnesses
signed the left-hand margin of the page containing the unsigned attestation clause, such signatures cannot demonstrate these
witnesses’ undertakings in the clause, since the signatures that do appear on the page were directed towards a wholly different
avowal.
The Court may be more charitably disposed had the witnesses in this case signed the attestation clause itself, but not the left-
hand margin of the page containing such clause. Without diminishing the value of the instrumental witnesses’ signatures on
each and every page, the fact must be noted that it is the attestation clause which contains the utterances reduced into writing
of the testamentary witnesses themselves. It is the witnesses, and not the testator, who are required under Article 805 to state
the number of pages used upon which the will is written; the fact that the testator had signed the will and every page thereof;
and that they witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. The
only proof in the will that the witnesses have stated these elemental facts would be their signatures on the attestation clause.
Thus, the subject will cannot be considered to have been validly attested to by the instrumental witnesses, as they failed to sign
the attestation clause.
Yet, there is another fatal defect to the will on which the denial of this petition should also hinge. The requirement under
Article 806 that "every will must be acknowledged before a notary public by the testator and the witnesses" has also not been
complied with. The importance of this requirement is highlighted by the fact that it had been segregated from the other
requirements under Article 805 and entrusted into a separate provision, Article 806. The non-observance of Article 806 in this
case is equally as critical as the other cited flaws in compliance with Article 805, and should be treated as of equivalent import.
In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote "Nilagdaan ko at ninotario ko ngayong 10 ng
Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila."40 By no manner of contemplation can those words be construed as an
acknowledgment. An acknowledgment is the act of one who has executed a deed in going before some competent officer or
court and declaring it to be his act or deed.41 It involves an extra step undertaken whereby the signor actually declares to the
notary that the executor of a document has attested to the notary that the same is his/her own free act and deed.
It might be possible to construe the averment as a jurat, even though it does not hew to the usual language thereof. A jurat is
that part of an affidavit where the notary certifies that before him/her, the document was subscribed and sworn to by the

71
executor.42 Ordinarily, the language of the jurat should avow that the document was subscribed and sworn before the notary
public, while in this case, the notary public averred that he himself "signed and notarized" the document. Possibly though, the
word "ninotario" or "notarized" encompasses the signing of and swearing in of the executors of the document, which in this
case would involve the decedent and the instrumental witnesses.
Yet even if we consider what was affixed by the notary public as a jurat, the will would nonetheless remain invalid, as the
express requirement of Article 806 is that the will be "acknowledged", and not merely subscribed and sworn to. The will does
not present any textual proof, much less one under oath, that the decedent and the instrumental witnesses executed or signed
the will as their own free act or deed. The acknowledgment made in a will provides for another all-important legal safeguard
against spurious wills or those made beyond the free consent of the testator. An acknowledgement is not an empty
meaningless act.43 The acknowledgment coerces the testator and the instrumental witnesses to declare before an officer of the
law that they had executed and subscribed to the will as their own free act or deed. Such declaration is under oath and under
pain of perjury, thus allowing for the criminal prosecution of persons who participate in the execution of spurious wills, or those
executed without the free consent of the testator. It also provides a further degree of assurance that the testator is of certain
mindset in making the testamentary dispositions to those persons he/she had designated in the will.
It may not have been said before, but we can assert the rule, self-evident as it is under Article 806. A notarial will that is not
acknowledged before a notary public by the testator and the witnesses is fatally defective, even if it is subscribed and sworn
to before a notary public.
There are two other requirements under Article 805 which were not fully satisfied by the will in question. We need not discuss
them at length, as they are no longer material to the
disposition of this case. The provision requires that the testator and the instrumental witnesses sign each and every page of the
will on the left margin, except the last; and that all the pages shall be numbered correlatively in letters placed on the upper part
of each page. In this case, the decedent, unlike the witnesses, failed to sign both pages of the will on the left margin, her only
signature appearing at the so-called "logical end"44 of the will on its first page. Also, the will itself is not numbered correlatively
in letters on each page, but instead numbered with Arabic numerals. There is a line of thought that has disabused the notion
that these two requirements be construed as mandatory.45 Taken in isolation, these omissions, by themselves, may not be
sufficient to deny probate to a will. Yet even as these omissions are not decisive to the adjudication of this case, they need not
be dwelt on, though indicative as they may be of a general lack of due regard for the requirements under Article 805 by
whoever executed the will.
All told, the string of mortal defects which the will in question suffers from makes the probate denial inexorable.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.

72
G.R. No. 74695 September 14, 1993
In the Matter of the Probate of the Last Will and Testament of the Deceased Brigido Alvarado, CESAR ALVARADO, petitioner,
vs.
HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA. ROSARIO QUETULIO LOSA and HON. LEONOR INES LUCIANO,
Associate Justices, Intermediate Appellate Court, First Division (Civil Cases), and BAYANI MA. RINO, respondents.
Vicente R. Redor for petitioner.
Bayani Ma. Rino for and in his own behalf.

BELLOSILLO, J.:
Before us is an appeal from the Decision dated 11 April 19861 of the First Civil Cases Division of the then Intermediate Appellate
Court, now Court of Appeals, which affirmed the Order dated 27 June 19832 of the Regional Trial Court of Sta. Cruz, Laguna,
admitting to probate the last will and testament3 with codicil4 of the late Brigido Alvarado.
On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will entitled "Huling Habilin" wherein he disinherited
an illegitimate son (petitioner) and expressly revoked a previously executed holographic will at the time awaiting probate
before Branch 4 of the Regional Trial Court of sta. Cruz, Laguna.
As testified to by the three instrumental witnesses, the notary public and by private respondent who were present at the
execution, the testator did not read the final draft of the will himself. Instead, private respondent, as the lawyer who drafted
the eight-paged document, read the same aloud in the presence of the testator, the three instrumental witnesses and the
notary public. The latter four followed the reading with their own respective copies previously furnished them.
Meanwhile, Brigido's holographic will was subsequently admitted to probate on 9 December 1977. On the 29th day of the same
month, a codicil entitled "Kasulatan ng Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling Habilin na may Petsa Nobiembre
5, 1977 ni Brigido Alvarado" was executed changing some dispositions in the notarial will to generate cash for the testator's eye
operation. Brigido was then suffering from glaucoma. But the disinheritance and revocatory clauses were unchanged. As in the
case of the notarial will, the testator did not personally read the final draft of the codicil. Instead, it was private respondent who
read it aloud in his presence and in the presence of the three instrumental witnesses (same as those of the notarial will) and the
notary public who followed the reading using their own copies.
A petition for the probate of the notarial will and codicil was filed upon the testator's death on 3 January 1979 by private
respondent as executor with the Court of First Instance, now Regional Trial Court, of Siniloan, Laguna.5 Petitioner, in turn, filed
an Opposition on the following grounds: that the will sought to be probated was not executed and attested as required by law;
that the testator was insane or otherwise mentally incapacitated to make a will at the time of its execution due to senility and
old age; that the will was executed under duress, or influence of fear and threats; that it was procured by undue and improper
pressure and influence on the part of the beneficiary who stands to get the lion's share of the testator's estate; and lastly, that
the signature of the testator was procured by fraud or trick.
When the oppositor (petitioner) failed to substantiate the grounds relied upon in the Opposition, a Probate Order was issued
on 27 June 1983 from which an appeal was made to respondent court. The main thrust of the appeal was that the deceased
was blind within the meaning of the law at the time his "Huling Habilin" and the codicil attached thereto was executed; that
since the reading required by Art. 808 of the Civil Code was admittedly not complied with, probate of the deceased's last will
and codicil should have been denied.
On 11 April 1986, the Court of Appeals rendered the decision under review with the following findings: that Brigido Alvarado
was not blind at the time his last will and codicil were executed; that assuming his blindness, the reading requirement of Art.
808 was substantially complied with when both documents were read aloud to the testator with each of the three instrumental
witnesses and the notary public following the reading with their respective copies of the instruments. The appellate court then
concluded that although Art. 808 was not followed to the letter, there was substantial compliance since its purpose of making
known to the testator the contents of the drafted will was served.
The issues now before us can be stated thus: Was Brigido Alvarado blind for purpose of Art, 808 at the time his "Huling Habilin"
and its codicil were executed? If so, was the double-reading requirement of said article complied with?
Regarding the first issue, there is no dispute on the following facts: Brigido Alvarado was not totally blind at the time the will
and codicil were executed. However, his vision on both eyes was only of "counting fingers at three (3) feet" by reason of the
glaucoma which he had been suffering from for several years and even prior to his first consultation with an eye specialist on
14 December 1977.

73
The point of dispute is whether the foregoing circumstances would qualify Brigido as a "blind" testator under Art. 808 which
reads:
Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the
notary public before whom the will is acknowledged.
Petitioner contends that although his father was not totally blind when the will and codicil were executed, he can be so
considered within the scope of the term as it is used in Art. 808. To support his stand, petitioner presented before the trial
court a medical certificate issued by Dr. Salvador R. Salceda, Director of the Institute of Opthalmology (Philippine Eye Research
Institute),6 the contents of which were interpreted in layman's terms by Dr. Ruperto Roasa, whose expertise was admitted by
private respondent.7 Dr. Roasa explained that although the testator could visualize fingers at three (3) feet, he could no longer
read either printed or handwritten matters as of 14 December 1977, the day of his first consultation.8
On the other hand, the Court of Appeals, contrary to the medical testimony, held that the testator could still read on the day
the will and the codicil were executed but chose not to do so because of "poor eyesight."9 Since the testator was still capable of
reading at that time, the court a quo concluded that Art. 808 need not be complied with.
We agree with petitioner in this respect.
Regardless of respondent's staunch contention that the testator was still capable of reading at the time his will and codicil were
prepared, the fact remains and this was testified to by his witnesses, that Brigido did not do so because of his "poor," 10
"defective," 11 or "blurred"12 vision making it necessary for private respondent to do the actual reading for him.
The following pronouncement in Garcia vs. Vasquez 13 provides an insight into the scope of the term "blindness" as used in Art.
808, to wit:
The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will himself (as
when he is illiterate), is to make the provisions thereof known to him, so that he may be able to object if they are not in
accordance with his wishes . . .
Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those who, for one reason or another, are
"incapable of reading the(ir) will(s)." Since Brigido Alvarado was incapable of reading the final drafts of his will and codicil on
the separate occasions of their execution due to his "poor," "defective," or "blurred" vision, there can be no other course for us
but to conclude that Brigido Alvarado comes within the scope of the term "blind" as it is used in Art. 808. Unless the contents
were read to him, he had no way of ascertaining whether or not the lawyer who drafted the will and codicil did so confortably
with his instructions. Hence, to consider his will as validly executed and entitled to probate, it is essential that we ascertain
whether Art. 808 had been complied with.
Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read twice; once, by one of the instrumental
witnesses and, again, by the notary public before whom the will was acknowledged. The purpose is to make known to the
incapacitated testator the contents of the document before signing and to give him an opportunity to object if anything is
contrary to his instructions.
That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public and an instrumental witness, it was the
lawyer (private respondent) who drafted the eight-paged will and the five-paged codicil who read the same aloud to the
testator, and read them only once, not twice as Art. 808 requires.
Private respondent however insists that there was substantial compliance and that the single reading suffices for purposes of
the law. On the other hand, petitioner maintains that the only valid compliance or compliance to the letter and since it is
admitted that neither the notary public nor an instrumental witness read the contents of the will and codicil to Brigido, probate
of the latter's will and codicil should have been disallowed.
We sustain private respondent's stand and necessarily, the petition must be denied.
This Court has held in a number of occasions that substantial compliance is acceptable where the purpose of the law has been
satisfied, the reason being that the solemnities surrounding the execution of wills are intended to protect the testator from all
kinds of fraud and trickery but are never intended to be so rigid and inflexible as to destroy the testamentary privilege. 14
In the case at bar, private respondent read the testator's will and codicil aloud in the presence of the testator, his three
instrumental witnesses, and the notary public. Prior and subsequent thereto, the testator affirmed, upon being asked, that the
contents read corresponded with his instructions. Only then did the signing and acknowledgement take place. There is no
evidence, and petitioner does not so allege, that the contents of the will and codicil were not sufficiently made known and
communicated to the testator. On the contrary, with respect to the "Huling Habilin," the day of the execution was not the first
time that Brigido had affirmed the truth and authenticity of the contents of the draft. The uncontradicted testimony of Atty.
Rino is that Brigido Alvarado already acknowledged that the will was drafted in accordance with his expressed wishes even prior

74
to 5 November 1977 when Atty. Rino went to the testator's residence precisely for the purpose of securing his conformity to
the draft. 15
Moreover, it was not only Atty. Rino who read the documents on
5 November and 29 December 1977. The notary public and the three instrumental witnesses likewise read the will and codicil,
albeit silently. Afterwards, Atty. Nonia de la Pena (the notary public) and Dr. Crescente O. Evidente (one of the three
instrumental witnesses and the testator's physician) asked the testator whether the contents of the document were of his own
free will. Brigido answered in the affirmative. 16 With four persons following the reading word for word with their own copies,
it can be safely concluded that the testator was reasonably assured that what was read to him (those which he affirmed were in
accordance with his instructions), were the terms actually appearing on the typewritten documents. This is especially true when
we consider the fact that the three instrumental witnesses were persons known to the testator, one being his physician (Dr.
Evidente) and another (Potenciano C. Ranieses) being known to him since childhood.
The spirit behind the law was served though the letter was not. Although there should be strict compliance with the substantial
requirements of the law in order to insure the authenticity of the will, the formal imperfections should be brushed aside when
they do not affect its purpose and which, when taken into account, may only defeat the testator's will. 17
As a final word to convince petitioner of the propriety of the trial court's Probate Order and its affirmance by the Court of
Appeals, we quote the following pronouncement in Abangan v. Abangan, 18 to wit:
The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid the
substitution of wills and testaments and to guaranty their truth and authenticity. Therefore the laws on the subject should be
interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact
that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation
already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely
unnecessary, useless and frustrative of the testator's will, must be disregarded (emphasis supplied).
Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in his "Huling Habilin" and the codicil attached
thereto. We are unwilling to cast these aside fro the mere reason that a legal requirement intended for his protection was not
followed strictly when such compliance had been rendered unnecessary by the fact that the purpose of the law, i.e., to make
known to the incapacitated testator the contents of the draft of his will, had already been accomplished. To reiterate,
substantial compliance suffices where the purpose has been served.
WHEREFORE, the petition is DENIED and the assailed Decision of respondent Court of Appeals dated 11 April 1986 is AFFIRMED.
Considering the length of time that this case has remained pending, this decision is immediately executory. Costs against
petitioner.
SO ORDERED.

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G.R. No. 76714 June 2, 1994
SALUD TEODORO VDA. DE PEREZ, petitioner,
vs.
HON. ZOTICO A. TOLETE in his capacity as Presiding Judge, Branch 18, RTC, Bulacan, respondent.
Natividad T. Perez for petitioner.
Benedicto T. Librojo for private respondents.

QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of Court to set aside the Order dated November 19, 1986 of
the Regional Trial Court, Branch 18, Bulacan presided by respondent Judge Zotico A. Tolete, in Special Proceedings No. 1793-M.
We grant the petition.
II
Dr. Jose F. Cunanan and his wife, Dr. Evelyn Perez-Cunanan, who became American citizens, established a successful medical
practice in New York, U.S.A. The Cunanans lived at No. 2896 Citation Drive, Pompey, Syracuse, New York, with their children,
Jocelyn, 18; Jacqueline, 16; and Josephine, 14.
On August 23, 1979, Dr. Cunanan executed a last will and testament, bequeathing to his wife "all the remainder" of his real and
personal property at the time of his death "wheresoever situated" (Rollo, p. 35). In the event he would survive his wife, he
bequeathed all his property to his children and grandchildren with Dr. Rafael G. Cunanan, Jr. as trustee. He appointed his wife
as executrix of his last will and testament and Dr. Rafael G. Cunanan, Jr. as substitute executor. Article VIII of his will states:
If my wife, EVELYN PEREZ-CUNANAN, and I shall die under such circumstances that there is not sufficient evidence to determine
the order of our deaths, then it shall be presumed that I predeceased her, and my estate shall be administered and distributed,
in all respects, in accordance with such presumption (Rollo, p. 41).
Four days later, on August 27, Dr. Evelyn P. Cunanan executed her own last will and testament containing the same provisions
as that of the will of her husband. Article VIII of her will states:
If my husband, JOSE F. CUNANAN, and I shall die under such circumstances that there is not sufficient evidence to determine
the order of our deaths, then it shall be presumed that he predeceased me, and my estate shall be administered and
distributed in all respects, in accordance with such presumption. (Rollo, p. 31).
On January 9, 1982, Dr. Cunanan and his entire family perished when they were trapped by fire that gutted their home.
Thereafter, Dr. Rafael G. Cunanan, Jr. as trustee and substitute executor of the two wills, filed separate proceedings for the
probate thereof with the Surrogate Court of the County of Onondaga, New York. On April 7, these two wills were admitted to
probate and letters testamentary were issued in his favor.
On February 21, 1983, Salud Teodoro Perez, the mother of Dr. Evelyn P. Cunanan, and petitioner herein, filed with the Regional
P. Cunanan, and petitioner herein, filed with the Regional Trial Court, Malolos, Bulacan a petition for the reprobate of the two
bills ancillary to the probate proceedings in New York. She also asked that she be appointed the special administratrix of the
estate of the deceased couple consisting primarily of a farm land in San Miguel, Bulacan.
On March 9, the Regional Trial Court, Branch 16, Malolos, Bulacan, presided by Judge Gualberto J. de la Llana, issued an order,
directing the issuance of letters of special administration in favor of petitioner upon her filing of a P10,000.00 bond. The
following day, petitioner posted the bond and took her oath as special administration.
As her first act of administration, petitioner filed a motion, praying that the Philippine Life Insurance Company be directed to
deliver the proceeds in the amount of P50,000.00 of the life insurance policy taken by Dr. Jose F. Cunanan with Dr. Evelyn
Perez-Cunanan and their daughter Jocelyn as beneficiaries. The trial court granted the motion.
Counsel for the Philippine American Life Insurance Company then filed a manifestation, stating that said company then filed a
manifestation, stating that said company had delivered to petitioner the amount of P49,765.85, representing the proceeds of
the life insurance policy of Dr. Jose F. Cunanan.
In a motion dated May 19, 1983, petitioner asked that Dr. Rafael Cunanan, Sr. be ordered to deliver to her a Philippine Trust
Company passbook with P25,594.00 in savings deposit, and the Family Savings Bank time deposit certificates in the total
amount of P12,412.52.

76
On May 31, Atty. Federico Alday filed a notice of appearance as counsel for the heirs of Dr. Jose F. Cunanan, namely, Dr. Rafael
Cunanan, Sr., Priscilla Cunanan Bautista, Lydia Cunanan Ignacio, Felipe F. Cunanan and Loreto Cunanan Concepcion (Cunanan
heirs). He also manifested that before receiving petitioner's motion of May 19, 1983, his clients were unaware of the filing of
the testate estate case and therefore, "in the interest of simple fair play," they should be notified of the proceedings (Records,
p. 110). He prayed for deferment of the hearing on the motions of May 19, 1983.
Petitioner then filed a counter manifestation dated June 13, 1983, asserting: (1) that the "Cunanan collaterals are neither heirs
nor creditors of the late Dr. Jose F. Cunanan" and therefore, they had "no legal or proprietary interests to protect" and "no right
to intervene"; (2) that the wills of Dr. Jose F. Cunanan and Dr. Evelyn Perez-Cunanan, being American citizens, were executed in
accordance with the solemnities and formalities of New York laws, and produced "effects in this jurisdiction in accordance with
Art. 16 in relation to Art. 816 of the Civil Code"; (3) that under Article VIII of the two wills, it was presumed that the husband
predeceased the wife; and (4) that "the Cunanan collaterals are neither distributees, legatees or beneficiaries, much less, heirs
as heirship is only by institution" under a will or by operation of the law of New York (Records, pp. 112-113).
On June 23, the probate court granted petitioner's motion of May 19, 1983. However, on July 21, the Cunanan heirs filed a
motion to nullify the proceedings and to set aside the appointment of, or to disqualify, petitioner as special administratrix of
the estates of Dr. Jose F. Cunanan and Dr. Evelyn Perez-Cunanan. The motion stated: (1) that being the "brothers and sisters
and the legal and surviving heirs" of Dr. Jose F. Cunanan, they had been "deliberately excluded" in the petition for the probate
of the separate wills of the Cunanan spouses thereby misleading the Bulacan court to believe that petitioner was the sole heir
of the spouses; that such "misrepresentation" deprived them of their right to "due process in violation of Section 4, Rule 76 of
the Revised Rules of Court; (2) that Dr. Rafael G. Cunanan, Jr., the executor of the estate of the Cunanan spouses, was likewise
not notified of the hearings in the Bulacan court; (3) that the "misrepresentation and concealment committed by" petitioner
rendered her unfit to be a special administratrix; (4) that Dr. Rafael G. Cunanan, Jr. had, by virtue of a verified power of
attorney, authorized his father,
Dr. Rafael Cunanan, Sr., to be his attorney-in-fact; and (5) that Dr. Rafael Cunanan, Sr. is qualified to be a regular administrator
"as practically all of the subject estate in the Philippines belongs to their brother, Dr. Jose F. Cunanan" (Records, pp. 118-122).
Hence, they prayed: (1) that the proceedings in the case be declared null and void; (2) that the appointment of petitioner as
special administratrix be set aside; and (3) that Dr. Rafael Cunanan, Sr. be appointed the regular administrator of the estate of
the deceased spouses.
Thereafter, the Cunanan heirs filed a motion requiring petitioner to submit an inventory or accounting of all monies received by
her in trust for the estate.
In her opposition, petitioner asserted: (1) that she was the "sole and only heir" of her daughter, Dr. Evelyn Perez-Cunanan to
the exclusion of the "Cunanan collaterals"; hence they were complete strangers to the proceedings and were not entitled to
notice; (2) that she could not have "concealed" the name and address of Dr. Rafael G. Cunanan, Jr. because his name was
prominently mentioned not only in the two wills but also in the decrees of the American surrogate court; (3) that the rule
applicable to the case is Rule 77, not Rule 76, because it involved the allowance of wills proved outside of the Philippines and
that nowhere in Section 2 of Rule 77 is there a mention of notice being given to the executor who, by the same provision,
should himself file the necessary ancillary proceedings in this country; (4) that even if the Bulacan estate came from the
"capital" of Dr. Jose F. Cunanan, he had willed all his worldly goods to his wife and nothing to his brothers and sisters; and (5)
that Dr. Rafael G. Cunanan, Jr. had unlawfully disbursed $215,000.00 to the Cunanan heirs, misappropriated $15,000.00 for
himself and irregularly assigned assets of the estates to his American lawyer (Records, pp. 151-160).
In their reply, the Cunanan heirs stressed that on November 24, 1982, petitioner and the Cunanan heirs had entered into an
agreement in the United States "to settle and divide equally the estates," and that under Section 2 of Rule 77 the "court shall fix
a time and place for the hearing and cause notice thereof to be given as in case of an original will presented for allowance"
(Records, pp. 184-185).
Petitioner asked that Dr. Rafael G. Cunanan, Jr. be cited for contempt of court for failure to comply with the Order of June 23,
1983 and for appropriating money of the estate for his own benefit. She also alleged that she had impugned the agreement of
November 24, 1982 before the Surrogate Court of Onondaga, New York which rendered a decision on April 13, 1983, finding
that "all assets are payable to Dr. Evelyn P. Cunanan’s executor to be then distributed pursuant to EPTL4-1.1 subd [a] par [4]"
(Rollo, p. 52).
On their part, the Cunanan heirs replied that petitioner was estopped from claiming that they were heirs by the agreement to
divide equally the estates. They asserted that by virtue of Section 2 of Rule 77 of the Rules of Court, the provisions of Sections
3, 4 and 5 of Rule 76 on the requirement of notice to all heirs, executors, devisees and legatees must be complied with. They
reiterated their prayer: (1) that the proceedings in the case be nullified; (2) that petitioner be disqualified as special
administratrix; (3) that she be ordered to submit an inventory of all goods, chattels and monies which she had received and to
surrender the same to the court; and (4) that Dr. Rafael Cunanan, Sr. be appointed the regular administrator.

77
Petitioner filed a rejoinder, stating that in violation of the April 13, 1983 decision of the American court Dr. Rafael G. Cunanan,
Jr. made "unauthorized disbursements from the estates as early as July 7, 1982" (Records, p. 231). Thereafter, petitioner moved
for the suspension of the proceedings as she had "to attend to the settlement proceedings" of the estate of the Cunanan
spouses in New York (Records, p. 242). The Cunanans heirs opposed this motion and filed a manifestation, stating that
petitioner had received $215,000.00 "from the Surrogate’s Court as part of legacy" based on the aforesaid agreement of
November 24, 1982 (Records, p. 248).
On February 21, 1984, Judge de la Llana issued an order, disallowing the reprobate of the two wills, recalling the appointment
of petitioner as special administratrix, requiring the submission of petitioner of an inventory of the property received by her as
special administratrix and declaring all pending incidents moot and academic. Judge de la Llana reasoned out that petitioner
failed to prove the law of New York on procedure and allowance of wills and the court had no way of telling whether the wills
were executed in accordance with the law of New York. In the absence of such evidence, the presumption is that the law of
succession of the foreign country is the same as the law of the Philippines. However, he noted, that there were only two
witnesses to the wills of the Cunanan spouses and the Philippine law requires three witnesses and that the wills were not
signed on each and every page, a requirement of the Philippine law.
On August 27, 1985, petitioner filed a motion for reconsideration of the Order dated February 21, 1984, where she had
sufficiently proven the applicable laws of New York governing the execution of last wills and testaments.
On the same day, Judge de la Llana issued another order, denying the motion of petitioner for the suspension of the
proceedings but gave her 15 days upon arrival in the country within which to act on the other order issued that same day.
Contending that the second portion of the second order left its finality to the discretion of counsel for petitioner, the Cunanans
filed a motion for the reconsideration of the objectionable portion of the said order so that it would conform with the pertinent
provisions of the Judiciary Reorganization Act of 1980 and the Interim Rules of Court.
On April 30, 1985, the respondent Judge of Branch 18 of the Regional Trial Court, Malolos, to which the reprobate case was
reassigned, issued an order stating that "(W)hen the last will and testament . . . was denied probate," the case was terminated
and therefore all orders theretofore issued should be given finality. The same Order amended the February 21, 1984 Order by
requiring petitioner to turn over to the estate the inventoried property. It considered the proceedings for all intents and
purposes, closed (Records,
p. 302).
On August 12, petitioner filed a motion to resume proceedings on account of the final settlement and termination of the
probate cases in New York. Three days later, petitioner filed a motion praying for the reconsideration of the Order of April 30,
1985 on the strength of the February 21, 1984 Order granting her a period of 15 days upon arrival in the country within which
to act on the denial of probate of the wills of the Cunanan spouses. On August 19, respondent Judge granted the motion and
reconsidered the Order of April 30, 1985.
On August 29, counsel for petitioner, who happens to be her daughter, Natividad, filed a motion praying that since petitioner
was ailing in Fort Lee, New Jersey, U.S.A. and therefore incapacitated to act as special administratrix, she (the counsel) should
be named substitute special administratrix. She also filed a motion for the reconsideration of the Order of February 21, 1984,
denying probate to the wills of the Cunanan spouses, alleging that respondent Judge "failed to appreciate the significant
probative value of the exhibits . . . which all refer to the offer and admission to probate of the last wills of the Cunanan spouses
including all procedures undertaken and decrees issued in connection with the said probate" (Records, pp. 313-323).
Thereafter, the Cunanans heirs filed a motion for reconsideration of the Order of August 19, 1985, alleging lack of notice to
their counsel.
On March 31, 1986, respondent Judge to which the case was reassigned denied the motion for reconsideration holding that the
documents submitted by petitioner proved "that the wills of the testator domiciled abroad were properly executed, genuine
and sufficient to possess real and personal property; that letters testamentary were issued; and that proceedings were held on
a foreign tribunal and proofs taken by a competent judge who inquired into all the facts and circumstances and being satisfied
with his findings issued a decree admitting to probate the wills in question." However, respondent Judge said that the
documents did not establish the law of New York on the procedure and allowance of wills (Records, p. 381).
On April 9, 1986, petitioner filed a motion to allow her to present further evidence on the foreign law. After the hearing of the
motion on April 25, 1986, respondent Judge issued an order wherein he conceded that insufficiency of evidence to prove the
foreign law was not a fatal defect and was curable by adducing additional evidence. He granted petitioner 45 days to submit the
evidence to that effect.
However, without waiting for petitioner to adduce the additional evidence, respondent Judge ruled in his order dated June 20,
1986 that he found "no compelling reason to disturb its ruling of March 31, 1986" but allowed petitioner to "file anew the
appropriate probate proceedings for each of the testator" (Records, p. 391).

78
The Order dated June 20, 1986 prompted petitioner to file a second motion for reconsideration stating that she was "ready to
submit further evidence on the law obtaining in the State of New York" and praying that she be granted "the opportunity to
present evidence on what the law of the State of New York has on the probate and allowance of wills" (Records, p. 393).
On July 18, respondent Judge denied the motion holding that to allow the probate of two wills in a single proceeding "would be
a departure from the typical and established mode of probate where one petition takes care of one will." He pointed out that
even in New York "where the wills in question were first submitted for probate, they were dealt with in separate proceedings"
(Records, p. 395).
On August 13, 1986, petitioner filed a motion for the reconsideration of the Order of July 18, 1986, citing Section 3, Rule 2 of
the Rules of Court, which provides that no party may institute more than one suit for a single cause of action. She pointed out
that separate proceedings for the wills of the spouses which contain basically the same provisions as they even named each
other as a beneficiary in their respective wills, would go against "the grain of inexpensive, just and speedy determination of the
proceedings" (Records, pp. 405-407).
On September 11, 1986, petitioner filed a supplement to the motion for reconsideration, citing Benigno v. De La Peña, 57 Phil.
305 (1932) (Records,
p. 411), but respondent Judge found that this pleading had been filed out of time and that the adverse party had not been
furnished with a copy thereof. In her compliance, petitioner stated that she had furnished a copy of the motion to the counsel
of the Cunanan heirs and reiterated her motion for a "final ruling on her supplemental motion" (Records, p. 421).
On November 19, respondent Judge issued an order, denying the motion for reconsideration filed by petitioner on the grounds
that "the probate of separate wills of two or more different persons even if they are husband and wife cannot be undertaken in
a single petition" (Records, pp. 376-378).
Hence, petitioner instituted the instant petition, arguing that the evidence offered at the hearing of April 11, 1983 sufficiently
proved the laws of the State of New York on the allowance of wills, and that the separate wills of the Cunanan spouses need
not be probated in separate proceedings.
II
Petitioner contends that the following pieces of evidence she had submitted before respondent Judge are sufficient to warrant
the allowance of the wills:
(a) two certificates of authentication of the respective wills of Evelyn and Jose by the Consulate General of the Philippines
(Exhs. "F" and "G");
(b) two certifications from the Secretary of State of New York and Custodian of the Great Seal on the facts that Judge Bernard L.
Reagan is the Surrogate of the Country of Onondaga which is a court of record, that his signature and seal of office are genuine,
and that the Surrogate is duly authorized to grant copy of the respective wills of Evelyn and Jose
(Exhs. "F-1" and "G-1");
(c) two certificates of Judge Reagan and Chief Clerk Donald E. Moore stating that they have in their records and files the said
wills which were recorded on April 7, 1982 (Exhs. "F-2" and "G-2");
(d) the respective wills of Evelyn and Jose (Exhs. "F-3", "F-6" and Exh. "G-3" — "G-6");
(e) certificates of Judge Reagan and the Chief Clerk certifying to the genuineness and authenticity of the exemplified copies of
the two wills (Exhs. "F-7" and "F-7");
(f) two certificates of authentication from the Consulate General of the Philippines in New York (Exh. "H" and "F").
(g) certifications from the Secretary of State that Judge Reagan is duly authorized to grant exemplified copies of the decree of
probate, letters testamentary and all proceedings had and proofs duly taken
(Exhs. "H-1" and "I-1");
(h) certificates of Judge Reagan and the Chief Clerk that letters testamentary were issued to Rafael G. Cunanan (Exhs. "H-2" and
"I-2");
(i) certification to the effect that it was during the term of Judge Reagan that a decree admitting the wills to probate had been
issued and appointing Rafael G. Cunanan as alternate executor (Exhs. "H-3" and
"I-10");
(j) the decrees on probate of the two wills specifying that proceedings were held and proofs duly taken (Exhs. "H-4" and "I-5");

79
(k) decrees on probate of the two wills stating that they were properly executed, genuine and valid and that the said
instruments were admitted to probate and established as wills valid to pass real and personal property (Exhs. "H-5" and "I-5");
and
(l) certificates of Judge Reagan and the Chief Clerk on the genuineness and authenticity of each other’s signatures in the
exemplified copies of the decrees of probate, letters testamentary and proceedings held in their court (Exhs. "H-6" and "I-6")
(Rollo, pp. 13-16).
Petitioner adds that the wills had been admitted to probate in the Surrogate Court’s Decision of April 13, 1983 and that the
proceedings were terminated on November 29, 1984.
The respective wills of the Cunanan spouses, who were American citizens, will only be effective in this country upon compliance
with the following provision of the Civil Code of the Philippines:
Art. 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law
of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this
Code prescribes.
Thus, proof that both wills conform with the formalities prescribed by New York laws or by Philippine laws is imperative.
The evidence necessary for the reprobate or allowance of wills which have been probated outside of the Philippines are as
follows: (1) the due execution of the will in accordance with the foreign laws; (2) the testator has his domicile in the foreign
country and not in the Philippines; (3) the will has been admitted to probate in such country; (4) the fact that the foreign
tribunal is a probate court, and (5) the laws of a foreign country on procedure and allowance of wills (III Moran Commentaries
on the Rules of Court, 1970 ed., pp. 419-429; Suntay v. Suntay, 95 Phil. 500 [1954]; Fluemer v. Hix, 54 Phil. 610 [1930]). Except
for the first and last requirements, the petitioner submitted all the needed evidence.
The necessity of presenting evidence on the foreign laws upon which the probate in the foreign country is based is impelled by
the fact that our courts cannot take judicial notice of them (Philippine Commercial and Industrial Bank v. Escolin, 56 SCRA 266
[1974]).
Petitioner must have perceived this omission as in fact she moved for more time to submit the pertinent procedural and
substantive New York laws but which request respondent Judge just glossed over. While the probate of a will is a special
proceeding wherein courts should relax the rules on evidence, the goal is to receive the best evidence of which the matter is
susceptible before a purported will is probated or denied probate (Vda. de Ramos v. Court of Appeals, 81 SCRA 393 [1978]).
There is merit in petitioner’s insistence that the separate wills of the Cunanan spouses should be probated jointly. Respondent
Judge’s view that the Rules on allowance of wills is couched in singular terms and therefore should be interpreted to mean that
there should be separate probate proceedings for the wills of the Cunanan spouses is too literal and simplistic an approach.
Such view overlooks the provisions of Section 2, Rule 1 of the Revised Rules of Court, which advise that the rules shall be
"liberally construed in order to promote their object and to assist the parties in obtaining just, speedy, and inexpensive
determination of every action and proceeding."
A literal application of the Rules should be avoided if they would only result in the delay in the administration of justice (Acain
v. Intermediate Appellate Court, 155 SCRA 100 [1987]; Roberts v. Leonidas, 129 SCRA 33 [1984]).
What the law expressly prohibits is the making of joint wills either for the testator’s reciprocal benefit or for the benefit of a
third person (Civil Code of the Philippines, Article 818). In the case at bench, the Cunanan spouses executed separate wills.
Since the two wills contain essentially the same provisions and pertain to property which in all probability are conjugal in
nature, practical considerations dictate their joint probate. As this Court has held a number of times, it will always strive to
settle the entire controversy in a single proceeding leaving no root or branch to bear the seeds of future litigation (Motoomull
v. Dela Paz, 187 SCRA 743 [1990]).
This petition cannot be completely resolved without touching on a very glaring fact — petitioner has always considered herself
the sole heir of
Dr. Evelyn Perez Cunanan and because she does not consider herself an heir of Dr. Jose F. Cunanan, she noticeably failed to
notify his heirs of the filing of the proceedings. Thus, even in the instant petition, she only impleaded respondent Judge,
forgetting that a judge whose order is being assailed is merely a nominal or formal party (Calderon v. Solicitor General, 215
SCRA 876 [1992]).
The rule that the court having jurisdiction over the reprobate of a will shall "cause notice thereof to be given as in case of an
original will presented for allowance" (Revised Rules of Court, Rule 27, Section 2) means that with regard to notices, the will
probated abroad should be treated as if it were an "original will" or a will that is presented for probate for the first time.
Accordingly, compliance with Sections 3 and 4 of Rule 76, which require publication and notice by mail or personally to the

80
"known heirs, legatees, and devisees of the testator resident in the Philippines" and to the executor, if he is not the petitioner,
are required.
The brothers and sisters of Dr. Jose F. Cunanan, contrary to petitioner's claim, are entitled to notices of the time and place for
proving the wills. Under Section 4 of Rule 76 of the Revised Rules of Court, the "court shall also cause copies of the notice of the
time and place fixed for proving the will to be addressed to the designated or other known heirs, legatees, and devisees of the
testator, . . . "
WHEREFORE, the questioned Order is SET ASIDE. Respondent Judge shall allow petitioner reasonable time within which to
submit evidence needed for the joint probate of the wills of the Cunanan spouses and see to it that the brothers and sisters of
Dr. Jose F. Cunanan are given all notices and copies of all pleadings pertinent to the probate proceedings.
SO ORDERED.

81
G.R. No. L-4067 November 29, 1951
In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.
Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.
Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.
PARAS, C.J.:
This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado dated January 3, 1943. The will
is written in the Ilocano dialect and contains the following attestation clause:
We, the undersigned, by these presents to declare that the foregoing testament of Antero Mercado was signed by himself and
also by us below his name and of this attestation clause and that of the left margin of the three pages thereof. Page three the
continuation of this attestation clause; this will is written in Ilocano dialect which is spoken and understood by the testator, and
it bears the corresponding number in letter which compose of three pages and all them were signed in the presence of the
testator and witnesses, and the witnesses in the presence of the testator and all and each and every one of us witnesses.
In testimony, whereof, we sign this statement, this the third day of January, one thousand nine hundred forty three, (1943) A.D.

(Sgd.) NUMERIANO EVANGELISTA (Sgd.) "ROSENDA CORTES

(Sgd.) BIBIANA ILLEGIBLE

The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero Mercado, followed below by "A
reugo del testator" and the name of Florentino Javier. Antero Mercado is alleged to have written a cross immediately after his
name. The Court of Appeals, reversing the judgement of the Court of First Instance of Ilocos Norte, ruled that the attestation
clause failed (1) to certify that the will was signed on all the left margins of the three pages and at the end of the will by Atty.
Florentino Javier at the express request of the testator in the presence of the testator and each and every one of the witnesses;
(2) to certify that after the signing of the name of the testator by Atty. Javier at the former's request said testator has written a
cross at the end of his name and on the left margin of the three pages of which the will consists and at the end thereof; (3) to
certify that the three witnesses signed the will in all the pages thereon in the presence of the testator and of each other.
In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado caused Atty. Florentino Javier
to write the testator's name under his express direction, as required by section 618 of the Code of Civil Procedure. The herein
petitioner (who is appealing by way of certiorari from the decision of the Court of Appeals) argues, however, that there is no
need for such recital because the cross written by the testator after his name is a sufficient signature and the signature of Atty.
Florentino Javier is a surplusage. Petitioner's theory is that the cross is as much a signature as a thumbmark, the latter having
been held sufficient by this Court in the cases of De Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479;
Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.
It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado or even one of the ways
by which he signed his name. After mature reflection, we are not prepared to liken the mere sign of the cross to a thumbmark,
and the reason is obvious. The cross cannot and does not have the trustworthiness of a thumbmark.
What has been said makes it unnecessary for us to determine there is a sufficient recital in the attestation clause as to the
signing of the will by the testator in the presence of the witnesses, and by the latter in the presence of the testator and of each
other.
Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So ordered.

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G.R. No. 6845 September 1, 1914
YAP TUA, petitioner-appellee,
vs.
YAP CA KUAN and YAP CA KUAN, objectors-appellants.
Chicote and Miranda for appellants.
O'Brien and DeWitt for appellee.
JOHNSON, J.:
It appears from the record that on the 23d day of August, 1909, one Perfecto Gabriel, representing the petitioner, Yap Tua,
presented a petition in the Court of First Instance of the city of Manila, asking that the will of Tomasa Elizaga Yap Caong be
admitted to probate, as the last will and testament of Tomasa Elizaga Yap Caong, deceased. It appears that the said Tomasa
Elizaga Yap Caong died in the city of Manila on the 11th day of August, 1909. Accompanying said petition and attached thereto
was the alleged will of the deceased. It appears that the will was signed by the deceased, as well as Anselmo Zacarias, Severo
Tabora, and Timoteo Paez.
Said petition, after due notice was given, was brought on for hearing on the 18th day of September, 1909. Timoteo Paez
declared that he was 48 years of age; that he had known the said Tomasa Elizaga Yap Caong; that she had died on the 11th day
of August, 1909; that before her death she had executed a last will and testament; that he was present at the time of the
execution of the same; that he had signed the will as a witness; that Anselmo Zacarias and Severo Tabora had also signed said
will as witnesses and that they had signed the will in the presence of the deceased.
Pablo Agustin also declared as a witness and said that he was 40 years of age; that he knew Tomasa Elizaga Yap Caong during
her lifetime; that she died on the 11th day of August, 1909, in the city of Manila; that before her death she had executed a last
will and testament; that he was present at the time said last will was executed; that there were also present Timoteo Paez and
Severo Tabora and a person called Anselmo; that the said Tomasa Elizaga Yap Caong signed the will in the presence of the
witnesses; that he had seen her sign the will with his own eyes; that the witnesses had signed the will in the presence of the
said Tomasa Elizaga Yap Caong and in the presence of each other; that the said Tomasa Elizaga Yap Caong signed the will
voluntarily, and in his judgment, she was in the possession of her faculties; that there were no threats or intimidation used to
induce her to sign the will; that she signed it voluntarily.
No further witnesses were called and there was no further opposition presented to the legalization of the said will.
After hearing the foregoing witnesses, the Honorable A. S. Crossfield, judge, on the 29th day of September, 1909, ordered that
the last will and testament of Tomasa Elizaga Yap Caong be allowed and admitted to probate. The will was attached to the
record and marked Exhibit A. The court further ordered that one Yap Tua be appointed as executor of the will, upon the giving
of a bond, the amount of which was to be fixed later.
From the record it appears that no further proceedings were had until the 28th of February, 1910, when Yap Ca Kuan and Yap
Ca Llu appeared and presented a petition, alleging that they were interested in the matters of the said will and desired to
intervene and asked that a guardian ad litem be appointed to represent them in the cause.
On the 1st day of March, 1910, the court appointed Gabriel La O as guardian ad litem of said parties. Gabriel La O accepted said
appointment, took the oath of office and entered upon the performance of his duties as guardian ad litem of said parties. On
the 2d day of March, 1910, the said Gabriel La O appeared in court and presented a motion in which he alleged, in substance:
First. That the will dated the 11th day of August, 1909, and admitted to probate by order of the court on the 29th day of
September, 1909, was null, for the following reasons:
(a) Because the same had not been authorized nor signed by the witnesses as the law prescribes.
(b) Because at the time of the execution of the will, the said Tomasa Elizaga Yap Caong was not then mentally capacitated to
execute the same, due to her sickness.
(c) Because her signature to the will had been obtained through fraud and illegal influence upon the part of persons who were
to receive a benefit from the same, and because the said Tomasa Elizaga Yap Caong had no intention of executing the same.
Second. That before the execution of the said will, which they alleged to be null, the said Tomasa Elizaga Yap Caong had
executed another will, with all the formalities required by law, upon the 6th day of August, 1909.
Third. That the said Yap Ca Kuan and Yap Ca Llu were minors and that, even though they had been negligent in presenting their
opposition to the legalization of the will, said negligence was excusable, on account of their age.

83
Upon the foregoing facts the court was requested to annul and set aside the order of the 29th day of September, 1909, and to
grant to said minors an opportunity to present new proof relating to the due execution of said will. Said petition was based
upon the provisions of section 113 of the Code of Procedure in Civil Actions.
While it is not clear from the record, apparently the said minors in their petition for a new trial, attached to said petition the
alleged will of August 6, 1909, of the said Tomasa Elizaga Yap Caong, and the affidavits of Severo Tabora, Clotilde and Cornelia
Serrano.
Upon the 10th day of March, 1910, upon the hearing of said motion for a rehearing, the Honorable A. S. Crossfield, judge,
granted said motion and ordered that the rehearing should take place upon the 18th day of March, 1910, and directed that
notice should be given to the petitioners of said rehearing and to all other persons interested in the will. At the rehearing a
number of witnesses were examined.
It will be remembered that one of the grounds upon which the new trial was requested was that the deceased, Tomasa Elizaga
Yap Caong, had not signed the will (Exhibit A) of the 11th of August, 1909; that in support of that allegation, the protestants,
during the rehearing, presented a witness called Tomas Puzon. Puzon testified that he was a professor and an expert in
handwriting, and upon being shown the will (of August 11, 1909) Exhibit A, testified that the name and surname on Exhibit A, in
his judgment were written by two different hands, though the given name is the same as that upon Exhibit 1 (the will of August
6, 1909), because he found in the name "Tomasa" on Exhibit A a similarity in the tracing to the "Tomasa" in Exhibit 1; that
comparing the surname on Exhibit A with the surname on Exhibit 1 he found that the character of the writing was thoroughly
distinguished and different by the tracing and by the direction of the letters in the said two exhibits; that from his experience
and observation he believed that the name "Tomasa" and "Yap Caong," appearing in the signature on Exhibit A were written by
different person.
Puzon, being cross-examined with reference to his capacity as an expert in handwriting, testified that while he was a student in
the Ateneo de Manila, he had studied penmanship; that he could not tell exactly when that was, except that he had concluded
his course in the year 1882; that since that time he had been a telegraph operator for seventeen years and that he had acted as
an expert in hand- writing in the courts in the provinces.
Gabriel La O was called as a witness during the rehearing and testified that he had drawn the will of the 6th of August, 1909, at
the request of Tomasa Elizaga Yap Caong; that it was drawn in accordance with her request and under her directions; that she
had signed it; that the same had been signed by three witnesses in her presence and in the presence of each other; that the will
was written in her house; that she was sick and was lying in her bed, but that she sat up to sign the will; that she signed the will
with great difficulty; that she was signed in her right mind.
The said Severo Tabora was also called as a witness again during the rehearing. He testified that he knew Tomasa Elizaga Yap
Caong during her lifetime; that she was dead; that his signature as a witness to Exhibit A (the will of August 11, 1909) was
placed there by him; that the deceased, Tomasa Elizaga Yap Caong, became familiar with the contents of the will because she
signed it before he (the witness) did; that he did not know whether anybody there told her to sign the will or not; that he signed
two bills; that he did not know La O; that he did not believe that Tomasa had signed the will (Exhibit A) before he arrived at the
house; that he was not sure that he had seen Tomasa Elizaga Yap Caong sign Exhibit A because there were many people and
there was a screen at the door and he could not see; that he was called a a witness to sign the second will and was told by the
people there that it was the same as the first; that the will (Exhibit A) was on a table, far from the patient, in the house but
outside the room where the patient was; that the will was signed by Paez and himself; that Anselmo Zacarias was there; that he
was not sure whether Anselmo Zacarias signed the will or not; that he was not sure whether Tomasa Elizaga Yap Caong could
see the table on which the will was written at the time it was signed or not; that there were many people in the house; that he
remembered the names of Pedro and Lorenzo; that he could not remember the names of any others; that the will remained on
the table after he signed it; that after he signed the will he went to the room where Tomasa was lying; that the will was left on
the table outside; that Tomasa was very ill; that he heard the people asking Tomasa to sign the will after he was (the witness)
had signed it; that he saw Paez sign the will, that he could not remember whether Anselmo Zacarias had signed the will,
because immediately after he and Paez signed it, he left because he was hungry; that the place where the table was located
was in the same house, on the floor, about two steps down from the floor on which Tomasa was.
Rufino R. Papa, was called as a witness for the purpose of supporting the allegation that Tomasa Elizaga Yap Caong was
mentally incapacitated to make the will dated August 11, 1909 (Exhibit A). Papa declared that he was a physician; that he knew
Tomasa Elizaga Yap Caong; that he had treated her in the month of August; that he visited her first on the 8th day of August;
that he visited her again on the 9th and 10th days of August; that on the first visit he found the sick woman completely weak —
very weak from her sickness, in the third stage of tuberculosis; that she was lying in bed; that on the first visit he found her with
but little sense, the second day also, and on the third day she had lost all her intelligence; that she died on the 11th of August;
tat he was requested to issue the death certificate; that when he asked her (Tomasa) whether she was feeling any pain or
anything of that kind, she did not answer at all; that she was in a condition of stupor, induced, as he believed, by the stage of
uraemia from which she was suffering.

84
Anselmo Zacarias, who had signed the will of August 11, 1909, was also called as a witnesses during the rehearing. He testified
that he had known Tomasa Elizaga Yap Caong since he was a child; that Tomasa was dead; that he had written the will exhibit
A; that it was all in his writing except the last part, which was written by Carlos Sobaco; that he had written the will Exhibit A at
the request of the uncle of Tomasa; that Lorenzo, the brother of the deceased, was the one who had instructed him as to the
terms of the will ; that the deceased had not spoken to him concerning the terms of the will; that the will was written in the
dining room of the residence of the deceased; that Tomasa was in another room different from that in which the will was
written; that the will was not written in the presence of Tomasa; that he signed the will as a witness in the room where Tomasa
was lying; that the other witnesses signed the will in the same room that when he went into the room where the sick woman
was (Tomasa Elizaga Yap Caong) Lorenzo had the will in his hands; that when Lorenzo came to the bed he showed the will to his
sister (Tomasa) and requested her to sign it; that she was lying stretched out on the bed and two women, who were taking care
of her, helped her to sit up, supporting her by lacing their hands at her back; that when she started to write her name, he
withdrew from the bed on account of the best inside the room; when he came back again to the sick bed the will was signed
and was again in the hands of Lorenzo; that he did not see Tomasa sign the will because he withdrew from the room; that he
did not know whether Tomasa had been informed of the contents of the will or not; he supposed she must have read it
because Lorenzo turned the will over to her; that when Lorenzo asked her to sign the will, he did not know what she said — he
could not hear her voice; that he did not know whether the sick woman was him sign the will or not; that he believed that
Tomasa died the next day after the will had been signed; that the other two witnesses, Timoteo Paez and Severo Tabora, had
signed the will in the room with the sick woman; that he saw them sign the will and that they saw him sign it; that he was not
sure whether the testatrix could have seen them at the time they signed the will or not; that there was a screen before the bed;
that he did not think that Lorenzo had been giving instructions as to the contents of the will; that about ten or fifteen minutes
elapsed from the time Lorenzo handed the will to Tomasa before she started to sign it; that the pen with which she signed the
will as given to her and she held it.
Clotilde Mariano testified that he was a cigarette maker; that he knew Tomasa Elizaga Yap Caong and that she was dead; that
she had made two wills; that the first one was written by La O and the second by Zacarias; that he was present at the time
Zacarias wrote the second one; that he was present when the second will was taken to Tomasa for signature; that Lorenzo had
told Tomasa that the second will was exactly like the first; that Tomasa said she could not sign it.
On cross examination he testified that there was a lot of visitors there; that Zacarias was not there; that Paez and Tabora were
there; that he had told Tomasa that the second will was exactly like the first.
During the rehearing Cornelia Serrano and Pedro Francisco were also examined as witnesses. There is nothing in their
testimony, however, which in our opinion is important.
In rebuttal Julia e la Cruz was called as a witness. She testified that she was 19 years of age; that she knew Tomasa Elizaga Yap
Caong during her lifetime; that she lived in the house of Tomasa during the last week of her illness; that Tomasa had made two
wills; that she was present when the second one was executed; that a lawyer had drawn the will in the dining room and after it
had been drawn and everything finished , it was taken to where Doña Tomasa was, for her signature; that it was taken to her by
Anselmo Zacarias; that she was present at the time Tomasa signed the will that there were many other people present also;
that she did not see Timoteo Paez there; that she saw Severo Tabora; that Anselmo Zacarias was present; that she did not hear
Clotilde Mariano ask Tomasa to sign the will; that she did not hear Lorenzo say to Tomasa that the second will was the same sa
the first; that Tomasa asked her to help her to sit up and to put a pillow to her back when Zacarias gave her some paper or
document and asked her to sign it; that she saw Tomasa take hold of the pen and try to sign it but she did not see the place she
signed the document, for the reason that she left the room; that she saw Tomasa sign the document but did not see on what
place on the document she signed; and that a notary public came the next morning; that Tomasa was able to move about in the
bed; that she had seen Tomasa in the act of starting to write her signature when she told her to get her some water.
Yap Cao Quiang was also called as a witness in rebuttal. He testified that he knew Tomasa Elizaga Yap Caong and knew that she
had made a will; that he saw the will at the time it was written; that he saw Tomasa sign it on her head; that he did not hear
Lorenzo ask Tomasa to sign the will; that Lorenzo had handed the will to Tomasa to sign; that he saw the witnesses sign the will
on a table near the bed; that the table was outside the curtain or screen and near the entrance to the room where Tomasa was
lying.
Lorenzo Yap Caong testified as a witness on rebuttal. He said that he knew Anselmo Zacarias and that Zacarias wrote the will of
Tomasa Elizaga Yap Caong; that Tomasa had given him instructions; that Tomasa had said that she sign the will; that the will
was on a table near the bed of Tomasa; that Tomasa, from where she was lying in the bed, could seethe table where the
witnesses had signed the will.
During the rehearing certain other witnesses were also examined; in our opinion, however, it is necessary to quote from them
for the reason that their testimony in no way affects the preponderance of proof above quoted.

85
At the close of the rehearing the Honorable A. S. Crossfield, judge, in an extended opinion, reached the conclusion that the last
will and testament of Tomasa Elizaga Yap Caong, which was attached to the record and marked Exhibit A was the last will and
testament of the said Tomasa Elizaga Yap Caong and admitted it to probate and ordered that the administrator therefore
appointed should continue as such administrator. From that order the protestants appealed to this court, and made the
following assignments of error:
I. The court erred in declaring that the will, Exhibit A, was executed by the deceased Tomasa Yap Caong, without the
intervention of any external influence on the part of other persons.
II. The court erred in declaring that the testator had clear knowledge and knew what she was doing at the time of signing the
will.
III. The court erred in declaring that the signature of the deceased Tomasa Yap Caong in the first will, Exhibit 1, is identical with
that which appears in the second will, Exhibit A.
IV. The court erred in declaring that the will, Exhibit A, was executed in accordance with the law.
With reference to the first assignment of error, to wit, that undue influence was brought to bear upon Tomasa Elizaga Yap
Caong in the execution of her will of August 11th, 1909 (Exhibit A), the lower court found that no undue influence had been
exercised over the mind of the said Tomasa Elizaga Yap Caong. While it is true that some of the witnesses testified that the
brother of Tomasa, one Lorenzo, had attempted to unduly influence her mind in the execution of he will, upon the other hand,
there were several witnesses who testified that Lorenzo did not attempt, at the time of the execution of the will, to influence
her mind in any way. The lower court having had an opportunity to see, to hear, and to note the witnesses during their
examination reached the conclusion that a preponderance of the evidence showed that no undue influence had been used. we
find no good reason in the record for reversing his conclusions upon that question.
With reference to the second assignment of error to wit, that Tomasa Elizaga Yap Caong was not of sound mind and memory at
the time of the execution of the will, we find the same conflict in the declarations of the witnesses which we found with
reference to the undue influence. While the testimony of Dr. Papa is very strong relating to the mental condition of Tomasa
Elizaga Yap Caong, yet, nevertheless, his testimony related to a time perhaps twenty-four hours before the execution of the will
in question (Exhibit A). Several witnesses testified that at the time the will was presented to her for her signature, she was of
sound mind and memory and asked for a pen and ink and kept the will in her possession for ten or fifteen minutes and finally
signed it. The lower court found that there was a preponderance of evidence sustaining the conclusion that Tomasa Elizaga Yap
Caong was of sound mind and memory and in the possession of her faculties at the time she signed this will. In view of the
conflict in the testimony of the witnesses and the finding of the lower court, we do not feel justified in reversing his conclusions
upon that question.
With reference to the third assignment of error, to wit, that the lower court committed an error in declaring that the signature
of Tomasa Elizaga Yap Caong, on her first will (August 6, 1909, Exhibit 1), is identical with that which appears in the second will
(August 11, 1909, Exhibit A), it may be said:
First. That whether or not Tomasa Elizaga Yap Caong executed the will of August 6, 1909 (Exhibit 1), was not the question
presented to the court. The question presented was whether or not she had duly executed the will of August 11, 1909 (Exhibit
A).
Second. There appears to be but little doubt that Tomasa Elizaga Yap Caong did execute the will of August 6, 1909. Several
witnesses testified to that fact. The mere fact, however, that she executed a former will is no proof that she did not execute a
later will. She had a perfect right, by will, to dispose of her property, in accordance with the provisions of law, up to the very
last of moment her life. She had a perfect right to change, alter, modify or revoke any and all of her former wills and to make a
new one. Neither will the fact that the new will fails to expressly revoke all former wills, in any way sustain the charge that she
did not make the new will.
Third. In said third assignment of error there is involved in the statement that "The signature of Tomasa Elizaga Yap Caong, in
her first will (Exhibit 1) was not identical with that which appears in her second will (Exhibit A)" the inference that she had not
signed the second will and all the argument of the appellants relating to said third assignment of error is based upon the
alleged fact that Tomasa Elizaga Yap Caong did not sign Exhibit A. Several witnesses testified that they saw her write the name
"Tomasa." One of the witnesses testified that she had written her full name. We are of the opinion, and we think the law
sustains our conclusion, that if Tomasa Elizaga Yap Caong signed any portion of her name tot he will, with the intention to sign
the same, that the will amount to a signature. It has been held time and time again that one who makes a will may sign the
same by using a mark, the name having been written by others. If writing a mark simply upon a will is sufficient indication of the
intention of the person to make and execute a will, then certainly the writing of a portion or all of her name ought to be
accepted as a clear indication of her intention to execute the will. (Re Goods of Savory, 15 Jur., 1042; Addy vs. Grix, 8 Ves. Jr.,

86
504; Baker vs. Dening, 8 Ad. and El., 94 Long vs. Zook, 13 Penn., 400; Vernon vs. Kirk, 30 Penn., 218; Cozzen's Will, 61 Penn.,
196; Re Goods of Emerson, L. R. 9 Ir., 443; Main vs. Ryder, 84 Penn., 217.)
We find a very interesting case reported in 131 Pennsylvania State, 220 (6 L. R. A., 353), and cited by the appellees, which was
known as "Knox's Appeal." In this case one Harriett S. Knox died very suddenly on the 17th of October, 1888, at the residence of
her father. After her death a paper was found in her room, wholly in her handwriting, written with a lead pencil, upon three
sides of an ordinary folded sheet of note paper and bearing the signature simply of "Harriett." In this paper the deceased
attempted to make certain disposition of her property. The will was presented for probate. The probation was opposed upon
the ground that the same did not contain the signature of the deceased. That was the only question presented to the court,
whether the signature, in the form above indicated, was a sufficient signature to constitute said paper the last will and
testament of Harriett S. Knox. It was admitted that the entire paper was in the handwriting of the deceased. In deciding that
question, Justice Mitchell said:
The precise case of a signature by the first name only, does not appear to have arisen either in England or the United States; but
the principle on which the decisions already referred to were based, especially those in regard to signing by initials only, are
equally applicable to the present case, and additional force is given to them by the decisions as to what constitutes a binding
signature to a contract. (Palmer vs. Stephens, 1 Denio, 478; Sanborne vs. Flager, 9 Alle, 474; Weston vs. Myers, 33 Ill., 424;
Salmon Falls, etc. Co. vs. Goddard, 14 How. (U. S.), 446.)
The man who cannot write and who is obliged to make his mark simply therefor, upon the will, is held to "sign" as effectually as
if he had written his initials or his full name. It would seem to be sufficient, under the law requiring a signature by the person
making a will, to make his mark, to place his initials or all or any part of his name thereon. In the present case we think the
proof shows, by a large preponderance, that Tomasa Elizaga Yap Caong, if she did not sign her full name, did at least sign her
given name "Tomasa," and that is sufficient to satisfy the statute.
With reference to the fourth assignment of error, it may be said that the argument which was preceded is sufficient to answer
it also.
During the trial of the cause the protestants made a strong effort to show that Tomasa Elizaga Yap Caong did not sign her name
in the presence of the witnesses and that they did not sign their names in their presence nor in the presence of each other.
Upon that question there is considerable conflict of proof. An effort was made to show that the will was signed by the
witnesses in one room and by Tomasa in another. A plan of the room or rooms in which the will was signed was presented as
proof and it was shown that there was but one room; that one part of the room was one or two steps below the floor of the
other; that the table on which the witnesses signed the will was located upon the lower floor of the room. It was also shown
that from the bed in which Tomasa was lying, it was possible for her to see the table on which the witnesses signed the will.
While the rule is absolute that one who makes a will must sign the same in the presence of the witnesses and that the
witnesses must sign in the presence of each other, as well as in the presence of the one making the will, yet, nevertheless, the
actual seeing of the signatures made is not necessary. It is sufficient if the signatures are made where it is possible for each of
the necessary parties, if they desire to see, may see the signatures placed upon the will.
In cases like the present where there is so much conflict in the proof, it is very difficult for the courts to reach conclusions that
are absolutely free from doubt. Great weight must be given by appellate courts who do not see or hear the witnesses, to the
conclusions of the trial courts who had that opportunity.
Upon a full consideration of the record, we find that a preponderance of the proof shows that Tomasa Elizaga Yap Caong did
execute, freely and voluntarily, while she was in the right use of all her faculties, the will dated August 11, 1909 (Exhibit A).
Therefore the judgment of the lower court admitting said will to probate is hereby affirmed with costs.

87
G.R. No. L-13431 November 12, 1919
In re will of Ana Abangan.
GERTRUDIS ABANGAN, executrix-appellee,
vs.
ANASTACIA ABANGAN, ET AL., opponents-appellants.
Filemon Sotto for appellants.
M. Jesus Cuenco for appellee.

AVANCEÑA, J.:
On September 19, 1917, the Court of First Instance of Cebu admitted to probate Ana Abangan's will executed July, 1916. From
this decision the opponent's appealed.
Said document, duly probated as Ana Abangan's will, consists of two sheets, the first of which contains all of the disposition of
the testatrix, duly signed at the bottom by Martin Montalban (in the name and under the direction of the testatrix) and by
three witnesses. The following sheet contains only the attestation clause duly signed at the bottom by the three instrumental
witnesses. Neither of these sheets is signed on the left margin by the testatrix and the three witnesses, nor numbered by
letters; and these omissions, according to appellants' contention, are defects whereby the probate of the will should have been
denied. We are of the opinion that the will was duly admitted to probate.
In requiring that each and every sheet of the will should also be signed on the left margin by the testator and three witnesses in
the presence of each other, Act No. 2645 (which is the one applicable in the case) evidently has for its object (referring to the
body of the will itself) to avoid the substitution of any of said sheets, thereby changing the testator's dispositions. But when
these dispositions are wholly written on only one sheet signed at the bottom by the testator and three witnesses (as the instant
case), their signatures on the left margin of said sheet would be completely purposeless. In requiring this signature on the
margin, the statute took into consideration, undoubtedly, the case of a will written on several sheets and must have referred to
the sheets which the testator and the witnesses do not have to sign at the bottom. A different interpretation would assume
that the statute requires that this sheet, already signed at the bottom, be signed twice. We cannot attribute to the statute such
an intention. As these signatures must be written by the testator and the witnesses in the presence of each other, it appears
that, if the signatures at the bottom of the sheet guaranties its authenticity, another signature on its left margin would be
unneccessary; and if they do not guaranty, same signatures, affixed on another part of same sheet, would add nothing. We
cannot assume that the statute regards of such importance the place where the testator and the witnesses must sign on the
sheet that it would consider that their signatures written on the bottom do not guaranty the authenticity of the sheet but, if
repeated on the margin, give sufficient security.
In requiring that each and every page of a will must be numbered correlatively in letters placed on the upper part of the sheet,
it is likewise clear that the object of Act No. 2645 is to know whether any sheet of the will has been removed. But, when all the
dispositive parts of a will are written on one sheet only, the object of the statute disappears because the removal of this single
sheet, although unnumbered, cannot be hidden.
What has been said is also applicable to the attestation clause. Wherefore, without considering whether or not this clause is an
essential part of the will, we hold that in the one accompanying the will in question, the signatures of the testatrix and of the
three witnesses on the margin and the numbering of the pages of the sheet are formalities not required by the statute.
Moreover, referring specially to the signature of the testatrix, we can add that same is not necessary in the attestation clause
because this, as its name implies, appertains only to the witnesses and not to the testator since the latter does not attest, but
executes, the will.
Synthesizing our opinion, we hold that in a will consisting of two sheets the first of which contains all the testamentary
dispositions and is signed at the bottom by the testator and three witnesses and the second contains only the attestation clause
and is signed also at the bottom by the three witnesses, it is not necessary that both sheets be further signed on their margins
by the testator and the witnesses, or be paged.
The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guaranty their truth and authenticity. Therefore the laws on this subject should be
interpreted in such a way as to attain these primordal ends. But, on the other hand, also one must not lose sight of the fact that
it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation already
given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely
unnecessary, useless and frustative of the testator's last will, must be disregarded. lawphil.net

88
As another ground for this appeal, it is alleged the records do not show that the testarix knew the dialect in which the will is
written. But the circumstance appearing in the will itself that same was executed in the city of Cebu and in the dialect of this
locality where the testatrix was a neighbor is enough, in the absence of any proof to the contrary, to presume that she knew
this dialect in which this will is written.
For the foregoing considerations, the judgment appealed from is hereby affirmed with costs against the appellants. So ordered.

89
G.R. No. L-1787 August 27, 1948
Testacy of Sixto Lopez. JOSE S. LOPEZ, petitioner-appellee,
vs.
AGUSTIN LIBORO, oppositor-appellant.
Tirona, Gutierrez and Adorable for appellant.
Ramon Diokno for appellee.
TUASON, J.:
In the Court of First Instance of Batangas the appellant opposed unsuccessfully the probate of what purports to be the last will
and testament (Exhibit A) of Don Sixto Lopez, who died at the age of 83 in Balayan, Batangas, on March 3, 1947, almost six
months after the document in question was executed. In the court below, the present appellant specified five grounds for his
opposition, to wit: (1) that the deceased never executed the alleged will; (2) that his signature appearing in said will was a
forgery; (3) that at the time of the execution of the will, he was wanting in testamentary as well as mental capacity due to
advanced age; (4) that, if he did ever execute said will, it was not executed and attested as required by law, and one of the
alleged instrumental witnesses was incapacitated to act as such; and it was procured by duress, influence of fear and threats
and undue and improper pressure and influence on the part of the beneficiaries instituted therein, principally the testator's
sister, Clemencia Lopez, and the herein proponent, Jose S. Lopez; and (5) that the signature of the testator was procured by
fraud or trick.
In this instance only one of these objections is reiterated, formulated in these words: "That the court a quo erred in holding
that the document Exhibit "A" was executed in all particulars as required by law." To this objection is added the alleged error of
the court "in allowing the petitioner to introduce evidence that Exhibit "A" was written in a language known to the decedent
after petitioner rested his case and over the vigorous objection of the oppositor.
The will in question comprises two pages, each of which is written on one side of a separate sheet. The first sheet is not paged
either in letters or in Arabic numerals. This, the appellant believes, is a fatal defect.
The purpose of the law in prescribing the paging of wills is guard against fraud, and to afford means of preventing the
substitution or of defecting the loss of any of its pages. (Abangan vs. Abangan, 40 Phil., 476.) In the present case, the omission
to put a page number on the first sheet, if that be necessary, is supplied by other forms of identification more trustworthy than
the conventional numerical words or characters. The unnumbered page is clearly identified as the first page by the internal
sense of its contents considered in relation to the contents of the second page. By their meaning and coherence, the first and
second lines on the second page are undeniably a continuation of the last sentence of the testament, before the attestation
clause, which starts at the bottom of the preceding page. Furthermore, the unnumbered page contains the caption
"TESTAMENTO," the invocation of the Almighty, and a recital that the testator was in full use of his testamentary faculty, — all
of which, in the logical order of sequence, precede the direction for the disposition of the marker's property. Again, as page two
contains only the two lines above mentioned, the attestation clause, the mark of the testator and the signatures of the
witnesses, the other sheet can not by any possibility be taken for other than page one. Abangan vs. Abangan, supra, and
Fernandez vs. Vergel de Dios, 46 Phil., 922 are decisive of this issue.
Although not falling within the purview and scope of the first assignment of error, the matter of the credibility of the witnesses
is assailed under this heading. On the merits we do not believe that the appellant's contention deserves serious consideration.
Such contradictions in the testimony of the instrumental witnesses as are set out in the appellant's brief are incidents not all of
which every one of the witnesses can be supposed to have perceived, or to recall in the same order in which they occurred.
Everyday life and the result of investigations made in the field of experimental psychology show that the contradictions of
witnesses generally occur in the details of a certain incident, after a long series of questioning, and far from being an evidence
of falsehood constitute a demonstration of good faith. Inasmuch as not all those who witness an incident are impressed in like
manner, it is but natural that in relating their impressions they should not agree in the minor details; hence, the contradictions
in their testimony. (People vs. Limbo, 49 Phil., 99.)
The testator affixed his thumbmark to the instrument instead of signing his name. The reason for this was that the testator was
suffering from "partial paralysis." While another in testator's place might have directed someone else to sign for him, as
appellant contends should have been done, there is nothing curious or suspicious in the fact that the testator chose the use of
mark as the means of authenticating his will. It was a matter of taste or preference. Both ways are good. A statute requiring a
will to be "signed" is satisfied if the signature is made by the testator's mark. (De Gala vs. Gonzales and Ona, 53 Phil., 108; 28 R.
C. L., 117.)
With reference to the second assignment of error, we do not share the opinion that the trial court communicated an abuse of
discretion in allowing the appellant to offer evidence to prove knowledge of Spanish by the testator, the language in which the

90
will is drawn, after the petitioner had rested his case and after the opponent had moved for dismissal of the petition on the
ground of insufficiency of evidence. It is within the discretion of the court whether or not to admit further evidence after the
party offering the evidence has rested, and this discretion will not be reviewed except where it has clearly been abused. (64 C.
J., 160.) More, it is within the sound discretion of the court whether or not it will allow the case to be reopened for the further
introduction of evidence after a motion or request for a nonsuit, or a demurrer to the evidence, and the case may be reopened
after the court has announced its intention as to its ruling on the request, motion, or demurrer, or has granted it or has denied
the same, or after the motion has been granted, if the order has not been written, or entered upon the minutes or signed. (64
C. J., 164.)
In this jurisdiction this rule has been followed. After the parties have produced their respective direct proofs, they are allowed
to offer rebutting evidence only, but, it has been held, the court, for good reasons, in the furtherance of justice, may permit
them to offer evidence upon their original case, and its ruling will not be disturbed in the appellate court where no abuse of
discretion appears. (Siuliong and Co. vs. Ylagan, 43 Phil., 393; U. S. vs. Alviar, 36 Phil., 804.) So, generally, additional evidence is
allowed when it is newly discovered, or where it has been omitted through inadvertence or mistake, or where the purpose of
the evidence is to the evidence is to correct evidence previously offered. (I Moran's Comments on the Rules of Court, 2d ed.,
545; 64 C. J., 160-163.) The omission to present evidence on the testator's knowledge of Spanish had not been deliberate. It
was due to a misapprehension or oversight.
Although alien to the second assignment of error, the appellant impugns the will for its silence on the testator's understanding
of the language used in the testament. There is no statutory requirement that such knowledge be expressly stated in the will
itself. It is a matter that may be established by proof aliunde. This Court so impliedly ruled in Gonzales vs. Laurel, 46 Phil., 781,
in which the probate of a will written in Tagalog was ordered although it did not say that the testator knew that idiom. In fact,
there was not even extraneous proof on the subject other than the fact that the testator resided in a Tagalog region, from
which the court said "a presumption arises that said Maria Tapia knew the Tagalog dialect.
The order of the lower court ordering the probate of the last will and testament of Don Sixto Lopez is affirmed, with costs.

91
G.R. No. L-36033 November 5, 1982
IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA PEREZ, (deceased): APOLONIO TABOADA,
petitioner,
vs.
HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern Leyte, (Branch III, Maasin), respondent.
Erasmo M. Diola counsel for petition.
Hon. Avelino S. Rosal in his own behalf.

GUTIERREZ, JR. J.:

This is a petition for review of the orders issued by the Court of First Instance of Southern Leyte, Branch III, in Special
Proceedings No. R-1713, entitled "In the Matter of the Petition for Probate of the Will of Dorotea Perez, Deceased; Apolonio
Taboada, Petitioner", which denied the probate of the will, the motion for reconsideration and the motion for appointment of a
special administrator.
In the petition for probate filed with the respondent court, the petitioner attached the alleged last will and testament of the
late Dorotea Perez. Written in the Cebuano-Visayan dialect, the will consists of two pages. The first page contains the entire
testamentary dispositions and is signed at the end or bottom of the page by the testatrix alone and at the left hand margin by
the three (3) instrumental witnesses. The second page which contains the attestation clause and the acknowledgment is signed
at the end of the attestation clause by the three (3) attesting witnesses and at the left hand margin by the testatrix.
Since no opposition was filed after the petitioner's compliance with the requirement of publication, the trial court
commissioned the branch clerk of court to receive the petitioner's evidence. Accordingly, the petitioner submitted his evidence
and presented Vicente Timkang, one of the subscribing witnesses to the will, who testified on its genuineness and due
execution.
The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned order denying the probate of the will of
Dorotea Perez for want of a formality in its execution. In the same order, the petitioner was also required to submit the names
of the intestate heirs with their corresponding addresses so that they could be properly notified and could intervene in the
summary settlement of the estate.
Instead of complying with the order of the trial court, the petitioner filed a manifestation and/or motion, ex parte praying for a
thirty-day period within which to deliberate on any step to be taken as a result of the disallowance of the will. He also asked
that the ten-day period required by the court to submit the names of intestate heirs with their addresses be held in abeyance.
The petitioner filed a motion for reconsideration of the order denying the probate of the will. However, the motion together
with the previous manifestation and/or motion could not be acted upon by the Honorable Ramon C. Pamatian due to his
transfer to his new station at Pasig, Rizal. The said motions or incidents were still pending resolution when respondent Judge
Avelino S. Rosal assumed the position of presiding judge of the respondent court.
Meanwhile, the petitioner filed a motion for the appointment of special administrator.
Subsequently, the new Judge denied the motion for reconsideration as well as the manifestation and/or motion filed ex parte.
In the same order of denial, the motion for the appointment of special administrator was likewise denied because of the
petitioner's failure to comply with the order requiring him to submit the names of' the intestate heirs and their addresses.
The petitioner decided to file the present petition.
For the validity of a formal notarial will, does Article 805 of the Civil Code require that the testatrix and all the three
instrumental and attesting witnesses sign at the end of the will and in the presence of the testatrix and of one another?
Article 805 of the Civil Code provides:
Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's
name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as
aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in
letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the
will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the

92
instrumental witnesses, and that the lacier witnesses and signed the will and the pages thereof in the presence of the testator
and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to the witnesses, it shall be
interpreted to them.
The respondent Judge interprets the above-quoted provision of law to require that, for a notarial will to be valid, it is not
enough that only the testatrix signs at the "end" but an the three subscribing witnesses must also sign at the same place or at
the end, in the presence of the testatrix and of one another because the attesting witnesses to a will attest not merely the will
itself but also the signature of the testator. It is not sufficient compliance to sign the page, where the end of the will is found, at
the left hand margin of that page.
On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it a condition precedent or a
matter of absolute necessity for the extrinsic validity of the wig that the signatures of the subscribing witnesses should be
specifically located at the end of the wig after the signature of the testatrix. He contends that it would be absurd that the
legislature intended to place so heavy an import on the space or particular location where the signatures are to be found as
long as this space or particular location wherein the signatures are found is consistent with good faith and the honest frailties of
human nature.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end by the testator himself or by
the testator's name written by another person in his presence, and by his express direction, and attested and subscribed by
three or more credible witnesses in the presence of the testator and of one another.
It must be noted that the law uses the terms attested and subscribed Attestation consists in witnessing the testator's execution
of the will in order to see and take note mentally that those things are, done which the statute requires for the execution of a
will and that the signature of the testator exists as a fact. On the other hand, subscription is the signing of the witnesses' names
upon the same paper for the purpose of Identification of such paper as the will which was executed by the testator. (Ragsdale
v. Hill, 269 SW 2d 911).
Insofar as the requirement of subscription is concerned, it is our considered view that the will in this case was subscribed in a
manner which fully satisfies the purpose of Identification.
The signatures of the instrumental witnesses on the left margin of the first page of the will attested not only to the genuineness
of the signature of the testatrix but also the due execution of the will as embodied in the attestation clause.
While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual forms should be ignored,
especially where the authenticity of the will is not assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).
The law is to be liberally construed, "the underlying and fundamental objective permeating the provisions on the law on wills in
this project consists in the liberalization of the manner of their execution with the end in view of giving the testator more
freedom in expressing his last wishes but with sufficient safeguards and restrictions to prevent the commission of fraud and the
exercise of undue and improper pressure and influence upon the testator. This objective is in accord with the modern tendency
in respect to the formalities in the execution of a will" (Report of the Code commission, p. 103).
Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were not for the defect in the place of signatures
of the witnesses, he would have found the testimony sufficient to establish the validity of the will.
The objects of attestation and of subscription were fully met and satisfied in the present case when the instrumental witnesses
signed at the left margin of the sole page which contains all the testamentary dispositions, especially so when the will was
properly Identified by subscribing witness Vicente Timkang to be the same will executed by the testatrix. There was no question
of fraud or substitution behind the questioned order.
We have examined the will in question and noticed that the attestation clause failed to state the number of pages used in
writing the will. This would have been a fatal defect were it not for the fact that, in this case, it is discernible from the entire wig
that it is really and actually composed of only two pages duly signed by the testatrix and her instrumental witnesses. As earlier
stated, the first page which contains the entirety of the testamentary dispositions is signed by the testatrix at the end or at the
bottom while the instrumental witnesses signed at the left margin. The other page which is marked as "Pagina dos" comprises
the attestation clause and the acknowledgment. The acknowledgment itself states that "This Last Will and Testament consists
of two pages including this page".
In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the following observations with respect to the purpose of the
requirement that the attestation clause must state the number of pages used:

93
The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which requires that the
attestation clause shall state the number of pages or sheets upon which the win is written, which requirement has been held to
be mandatory as an effective safeguard against the possibility of interpolation or omission of some of the pages of the will to
the prejudice of the heirs to whom the property is intended to be bequeathed (In re will of Andrada, 42 Phil., 180; Uy Coque vs.
Navas L. Sioca, 43 Phil. 405; Gumban vs. Gorecho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil.
611). The ratio decidendi of these cases seems to be that the attestation clause must contain a statement of the number of
sheets or pages composing the will and that if this is missing or is omitted, it will have the effect of invalidating the will if the
deficiency cannot be supplied, not by evidence aliunde, but by a consideration or examination of the will itself. But here the
situation is different. While the attestation clause does not state the number of sheets or pages upon which the will is written,
however, the last part of the body of the will contains a statement that it is composed of eight pages, which circumstance in our
opinion takes this case out of the rigid rule of construction and places it within the realm of similar cases where a broad and
more liberal view has been adopted to prevent the will of the testator from being defeated by purely technical considerations.
Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a similar liberal approach:
... Impossibility of substitution of this page is assured not only (sic) the fact that the testatrix and two other witnesses did sign
the defective page, but also by its bearing the coincident imprint of the seal of the notary public before whom the testament
was ratified by testatrix and all three witnesses. The law should not be so strictly and literally interpreted as to penalize the
testatrix on account of the inadvertence of a single witness over whose conduct she had no control where the purpose of the
law to guarantee the Identity of the testament and its component pages is sufficiently attained, no intentional or deliberate
deviation existed, and the evidence on record attests to the fun observance of the statutory requisites. Otherwise, as stated in
Vda. de Gil. Vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration) 'witnesses may sabotage the will by
muddling or bungling it or the attestation clause.
WHEREFORE, the present petition is hereby granted. The orders of the respondent court which denied the probate of tile will,
the motion for reconsideration of the denial of probate, and the motion for appointment of a special administrator are set
aside. The respondent court is ordered to allow the probate of the wig and to conduct further proceedings in accordance with
this decision. No pronouncement on costs.
SO ORDERED.

94
G.R. No. L-5971 February 27, 1911
BEATRIZ NERA, ET AL., plaintiffs-appellees,
vs.
NARCISA RIMANDO, defendant-appellant.
Valerio Fontanilla and Andres Asprer for appellant.
Anacleto Diaz for appellees.
CARSON, J.:
The only question raised by the evidence in this case as to the due execution of the instrument propounded as a will in the
court below, is whether one of the subscribing witnesses was present in the small room where it was executed at the time
when the testator and the other subscribing witnesses attached their signatures; or whether at that time he was outside, some
eight or ten feet away, in a large room connecting with the smaller room by a doorway, across which was hung a curtain which
made it impossible for one in the outside room to see the testator and the other subscribing witnesses in the act of attaching
their signatures to the instrument.
A majority of the members of the court is of opinion that this subscribing witness was in the small room with the testator and
the other subscribing witnesses at the time when they attached their signatures to the instrument, and this finding, of course,
disposes of the appeal and necessitates the affirmance of the decree admitting the document to probate as the last will and
testament of the deceased.
The trial judge does not appear to have considered the determination of this question of fact of vital importance in the
determination of this case, as he was of opinion that under the doctrine laid down in the case of Jaboneta vs. Gustilo (5 Phil.
Rep., 541) the alleged fact that one of the subscribing witnesses was in the outer room when the testator and the other
describing witnesses signed the instrument in the inner room, had it been proven, would not be sufficient in itself to invalidate
the execution of the will. But we are unanimously of opinion that had this subscribing witness been proven to have been in the
outer room at the time when the testator and the other subscribing witnesses attached their signatures to the instrument in
the inner room, it would have been invalid as a will, the attaching of those signatures under circumstances not being done "in
the presence" of the witness in the outer room. This because the line of vision from this witness to the testator and the other
subscribing witnesses would necessarily have been impeded by the curtain separating the inner from the outer one "at the
moment of inscription of each signature."
In the case just cited, on which the trial court relied, we held that:
The true test of presence of the testator and the witnesses in the execution of a will is not whether they actually saw each
other sign, but whether they might have been seen each other sign, had they chosen to do so, considering their mental and
physical condition and position with relation to each other at the moment of inscription of each signature.
But it is especially to be noted that the position of the parties with relation to each other at the moment of the subscription of
each signature, must be such that they may see each other sign if they choose to do so. This, of course, does not mean that the
testator and the subscribing witnesses may be held to have executed the instrument in the presence of each other if it appears
that they would not have been able to see each other sign at that moment, without changing their relative positions or existing
conditions. The evidence in the case relied upon by the trial judge discloses that "at the moment when the witness Javellana
signed the document he was actually and physically present and in such position with relation to Jaboneta that he could see
everything that took place by merely casting his eyes in the proper direction and without any physical obstruction to prevent his
doing so." And the decision merely laid down the doctrine that the question whether the testator and the subscribing witnesses
to an alleged will sign the instrument in the presence of each other does not depend upon proof of the fact that their eyes were
actually cast upon the paper at the moment of its subscription by each of them, but that at that moment existing conditions
and their position with relation to each other were such that by merely casting the eyes in the proper direction they could have
seen each other sign. To extend the doctrine further would open the door to the possibility of all manner of fraud, substitution,
and the like, and would defeat the purpose for which this particular condition is prescribed in the code as one of the requisites
in the execution of a will.
The decree entered by the court below admitting the instrument propounded therein to probate as the last will and testament
of Pedro Rimando, deceased, is affirmed with costs of this instance against the appellant.

95
G.R. No. 124371 November 23, 2000
PAULA T. LLORENTE, petitioner,
vs.
COURT OF APPEALS and ALICIA F. LLORENTE, respondents.
DECISION
PARDO, J.:
The Case
The case raises a conflict of laws issue.
What is before us is an appeal from the decision of the Court of Appeals1 modifying that of the Regional Trial Court, Camarines
Sur, Branch 35, Iriga City2 declaring respondent Alicia F. Llorente (herinafter referred to as "Alicia"), as co-owners of whatever
property she and the deceased Lorenzo N. Llorente (hereinafter referred to as "Lorenzo") may have acquired during the
twenty-five (25) years that they lived together as husband and wife.
The Facts
The deceased Lorenzo N. Llorente was an enlisted serviceman of the United States Navy from March 10, 1927 to September 30,
1957.3
On February 22, 1937, Lorenzo and petitioner Paula Llorente (hereinafter referred to as "Paula") were married before a parish
priest, Roman Catholic Church, in Nabua, Camarines Sur.4
Before the outbreak of the Pacific War, Lorenzo departed for the United States and Paula stayed in the conjugal home in barrio
Antipolo, Nabua, Camarines Sur.5
On November 30, 1943, Lorenzo was admitted to United States citizenship and Certificate of Naturalization No. 5579816 was
issued in his favor by the United States District Court, Southern District of New York.6
Upon the liberation of the Philippines by the American Forces in 1945, Lorenzo was granted an accrued leave by the U. S. Navy,
to visit his wife and he visited the Philippines.7 He discovered that his wife Paula was pregnant and was "living in" and having an
adulterous relationship with his brother, Ceferino Llorente.8
On December 4, 1945, Paula gave birth to a boy registered in the Office of the Registrar of Nabua as "Crisologo Llorente," with
the certificate stating that the child was not legitimate and the line for the father’s name was left blank.9
Lorenzo refused to forgive Paula and live with her. In fact, on February 2, 1946, the couple drew a written agreement to the
effect that (1) all the family allowances allotted by the United States Navy as part of Lorenzo’s salary and all other obligations
for Paula’s daily maintenance and support would be suspended; (2) they would dissolve their marital union in accordance with
judicial proceedings; (3) they would make a separate agreement regarding their conjugal property acquired during their marital
life; and (4) Lorenzo would not prosecute Paula for her adulterous act since she voluntarily admitted her fault and agreed to
separate from Lorenzo peacefully. The agreement was signed by both Lorenzo and Paula and was witnessed by Paula’s father
and stepmother. The agreement was notarized by Notary Public Pedro Osabel.10
Lorenzo returned to the United States and on November 16, 1951 filed for divorce with the Superior Court of the State of
California in and for the County of San Diego. Paula was represented by counsel, John Riley, and actively participated in the
proceedings. On November 27, 1951, the Superior Court of the State of California, for the County of San Diego found all factual
allegations to be true and issued an interlocutory judgment of divorce.11
On December 4, 1952, the divorce decree became final.12
In the meantime, Lorenzo returned to the Philippines.
On January 16, 1958, Lorenzo married Alicia F. Llorente in Manila.13 Apparently, Alicia had no knowledge of the first marriage
even if they resided in the same town as Paula, who did not oppose the marriage or cohabitation.14
From 1958 to 1985, Lorenzo and Alicia lived together as husband and wife.15 Their twenty-five (25) year union produced three
children, Raul, Luz and Beverly, all surnamed Llorente.16
On March 13, 1981, Lorenzo executed a Last Will and Testament. The will was notarized by Notary Public Salvador M. Occiano,
duly signed by Lorenzo with attesting witnesses Francisco Hugo, Francisco Neibres and Tito Trajano. In the will, Lorenzo
bequeathed all his property to Alicia and their three children, to wit:

96
"(1) I give and bequeath to my wife ALICIA R. FORTUNO exclusively my residential house and lot, located at San Francisco,
Nabua, Camarines Sur, Philippines, including ALL the personal properties and other movables or belongings that may be found
or existing therein;
"(2) I give and bequeath exclusively to my wife Alicia R. Fortuno and to my children, Raul F. Llorente, Luz F. Llorente and Beverly
F. Llorente, in equal shares, all my real properties whatsoever and wheresoever located, specifically my real properties located
at Barangay Aro-Aldao, Nabua, Camarines Sur; Barangay Paloyon, Nabua, Camarines Sur; Barangay Baras, Sitio Puga, Nabua,
Camarines Sur; and Barangay Paloyon, Sitio Nalilidong, Nabua, Camarines Sur;
"(3) I likewise give and bequeath exclusively unto my wife Alicia R. Fortuno and unto my children, Raul F. Llorente, Luz F.
Llorente and Beverly F. Llorente, in equal shares, my real properties located in Quezon City Philippines, and covered by Transfer
Certificate of Title No. 188652; and my lands in Antipolo, Rizal, Philippines, covered by Transfer Certificate of Title Nos. 124196
and 165188, both of the Registry of Deeds of the province of Rizal, Philippines;
"(4) That their respective shares in the above-mentioned properties, whether real or personal properties, shall not be disposed
of, ceded, sold and conveyed to any other persons, but could only be sold, ceded, conveyed and disposed of by and among
themselves;
"(5) I designate my wife ALICIA R. FORTUNO to be the sole executor of this my Last Will and Testament, and in her default or
incapacity of the latter to act, any of my children in the order of age, if of age;
"(6) I hereby direct that the executor named herein or her lawful substitute should served (sic) without bond;
"(7) I hereby revoke any and all my other wills, codicils, or testamentary dispositions heretofore executed, signed, or published,
by me;
"(8) It is my final wish and desire that if I die, no relatives of mine in any degree in the Llorente’s Side should ever bother and
disturb in any manner whatsoever my wife Alicia R. Fortunato and my children with respect to any real or personal properties I
gave and bequeathed respectively to each one of them by virtue of this Last Will and Testament."17
On December 14, 1983, Lorenzo filed with the Regional Trial Court, Iriga, Camarines Sur, a petition for the probate and
allowance of his last will and testament wherein Lorenzo moved that Alicia be appointed Special Administratrix of his estate.18
On January 18, 1984, the trial court denied the motion for the reason that the testator Lorenzo was still alive.19
On January 24, 1984, finding that the will was duly executed, the trial court admitted the will to probate.20
On June 11, 1985, before the proceedings could be terminated, Lorenzo died.21
On September 4, 1985, Paula filed with the same court a petition22 for letters of administration over Lorenzo’s estate in her
favor. Paula contended (1) that she was Lorenzo’s surviving spouse, (2) that the various property were acquired during their
marriage, (3) that Lorenzo’s will disposed of all his property in favor of Alicia and her children, encroaching on her legitime and
1/2 share in the conjugal property.23
On December 13, 1985, Alicia filed in the testate proceeding (Sp. Proc. No. IR-755), a petition for the issuance of letters
testamentary.24
On October 14, 1985, without terminating the testate proceedings, the trial court gave due course to Paula’s petition in Sp.
Proc. No. IR-888.25
On November 6, 13 and 20, 1985, the order was published in the newspaper "Bicol Star".26
On May 18, 1987, the Regional Trial Court issued a joint decision, thus:
"Wherefore, considering that this court has so found that the divorce decree granted to the late Lorenzo Llorente is void and
inapplicable in the Philippines, therefore the marriage he contracted with Alicia Fortunato on January 16, 1958 at Manila is
likewise void. This being so the petition of Alicia F. Llorente for the issuance of letters testamentary is denied. Likewise, she is
not entitled to receive any share from the estate even if the will especially said so her relationship with Lorenzo having gained
the status of paramour which is under Art. 739 (1).
"On the other hand, the court finds the petition of Paula Titular Llorente, meritorious, and so declares the intrinsic disposition
of the will of Lorenzo Llorente dated March 13, 1981 as void and declares her entitled as conjugal partner and entitled to one-
half of their conjugal properties, and as primary compulsory heir, Paula T. Llorente is also entitled to one-third of the estate and
then one-third should go to the illegitimate children, Raul, Luz and Beverly, all surname (sic) Llorente, for them to partition in
equal shares and also entitled to the remaining free portion in equal shares.

97
"Petitioner, Paula Llorente is appointed legal administrator of the estate of the deceased, Lorenzo Llorente. As such let the
corresponding letters of administration issue in her favor upon her filing a bond in the amount (sic) of P100,000.00 conditioned
for her to make a return to the court within three (3) months a true and complete inventory of all goods, chattels, rights, and
credits, and estate which shall at any time come to her possession or to the possession of any other person for her, and from
the proceeds to pay and discharge all debts, legacies and charges on the same, or such dividends thereon as shall be decreed or
required by this court; to render a true and just account of her administration to the court within one (1) year, and at any other
time when required by the court and to perform all orders of this court by her to be performed.
"On the other matters prayed for in respective petitions for want of evidence could not be granted.
"SO ORDERED."27
In time, Alicia filed with the trial court a motion for reconsideration of the aforequoted decision.28
On September 14, 1987, the trial court denied Alicia’s motion for reconsideration but modified its earlier decision, stating that
Raul and Luz Llorente are not children "legitimate or otherwise" of Lorenzo since they were not legally adopted by him.29
Amending its decision of May 18, 1987, the trial court declared Beverly Llorente as the only illegitimate child of Lorenzo,
entitling her to one-third (1/3) of the estate and one-third (1/3) of the free portion of the estate.30
On September 28, 1987, respondent appealed to the Court of Appeals.31
On July 31, 1995, the Court of Appeals promulgated its decision, affirming with modification the decision of the trial court in
this wise:
"WHEREFORE, the decision appealed from is hereby AFFIRMED with the MODIFICATION that Alicia is declared as co-owner of
whatever properties she and the deceased may have acquired during the twenty-five (25) years of cohabitation.
"SO ORDERED."32
On August 25, 1995, petitioner filed with the Court of Appeals a motion for reconsideration of the decision.33
On March 21, 1996, the Court of Appeals,34 denied the motion for lack of merit.
Hence, this petition.35
The Issue
Stripping the petition of its legalese and sorting through the various arguments raised,36 the issue is simple. Who are entitled
to inherit from the late Lorenzo N. Llorente?
We do not agree with the decision of the Court of Appeals. We remand the case to the trial court for ruling on the intrinsic
validity of the will of the deceased.
The Applicable Law
The fact that the late Lorenzo N. Llorente became an American citizen long before and at the time of: (1) his divorce from Paula;
(2) marriage to Alicia; (3) execution of his will; and (4) death, is duly established, admitted and undisputed.
Thus, as a rule, issues arising from these incidents are necessarily governed by foreign law.
The Civil Code clearly provides:
"Art. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon
citizens of the Philippines, even though living abroad.
"Art. 16. Real property as well as personal property is subject to the law of the country where it is situated.
"However, intestate and testamentary succession, both with respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person
whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein
said property may be found." (emphasis ours)
True, foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to take judicial notice of them.
Like any other fact, they must be alleged and proved.37
While the substance of the foreign law was pleaded, the Court of Appeals did not admit the foreign law. The Court of Appeals
and the trial court called to the fore the renvoi doctrine, where the case was "referred back" to the law of the decedent’s
domicile, in this case, Philippine law.

98
We note that while the trial court stated that the law of New York was not sufficiently proven, in the same breath it made the
categorical, albeit equally unproven statement that "American law follows the ‘domiciliary theory’ hence, Philippine law applies
when determining the validity of Lorenzo’s will.38
First, there is no such thing as one American law.1ªwph!1 The "national law" indicated in Article 16 of the Civil Code cannot
possibly apply to general American law. There is no such law governing the validity of testamentary provisions in the United
States. Each State of the union has its own law applicable to its citizens and in force only within the State. It can therefore refer
to no other than the law of the State of which the decedent was a resident.39 Second, there is no showing that the application
of the renvoi doctrine is called for or required by New York State law.
The trial court held that the will was intrinsically invalid since it contained dispositions in favor of Alice, who in the trial court’s
opinion was a mere paramour. The trial court threw the will out, leaving Alice, and her two children, Raul and Luz, with nothing.
The Court of Appeals also disregarded the will. It declared Alice entitled to one half (1/2) of whatever property she and Lorenzo
acquired during their cohabitation, applying Article 144 of the Civil Code of the Philippines.
The hasty application of Philippine law and the complete disregard of the will, already probated as duly executed in accordance
with the formalities of Philippine law, is fatal, especially in light of the factual and legal circumstances here obtaining.
Validity of the Foreign Divorce
In Van Dorn v. Romillo, Jr.40 we held that owing to the nationality principle embodied in Article 15 of the Civil Code, only
Philippine nationals are covered by the policy against absolute divorces, the same being considered contrary to our concept of
public policy and morality. In the same case, the Court ruled that aliens may obtain divorces abroad, provided they are valid
according to their national law.
Citing this landmark case, the Court held in Quita v. Court of Appeals,41 that once proven that respondent was no longer a
Filipino citizen when he obtained the divorce from petitioner, the ruling in Van Dorn would become applicable and petitioner
could "very well lose her right to inherit" from him.
In Pilapil v. Ibay-Somera,42 we recognized the divorce obtained by the respondent in his country, the Federal Republic of
Germany. There, we stated that divorce and its legal effects may be recognized in the Philippines insofar as respondent is
concerned in view of the nationality principle in our civil law on the status of persons.
For failing to apply these doctrines, the decision of the Court of Appeals must be reversed.43 We hold that the divorce obtained
by Lorenzo H. Llorente from his first wife Paula was valid and recognized in this jurisdiction as a matter of comity. Now, the
effects of this divorce (as to the succession to the estate of the decedent) are matters best left to the determination of the trial
court.
Validity of the Will
The Civil Code provides:
"Art. 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the
country in which they are executed.
"When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a
foreign country, the solemnities established by Philippine laws shall be observed in their execution." (underscoring ours)
The clear intent of Lorenzo to bequeath his property to his second wife and children by her is glaringly shown in the will he
executed. We do not wish to frustrate his wishes, since he was a foreigner, not covered by our laws on "family rights and duties,
status, condition and legal capacity."44
Whether the will is intrinsically valid and who shall inherit from Lorenzo are issues best proved by foreign law which must be
pleaded and proved. Whether the will was executed in accordance with the formalities required is answered by referring to
Philippine law. In fact, the will was duly probated.
As a guide however, the trial court should note that whatever public policy or good customs may be involved in our system of
legitimes, Congress did not intend to extend the same to the succession of foreign nationals. Congress specifically left the
amount of successional rights to the decedent's national law.45
Having thus ruled, we find it unnecessary to pass upon the other issues raised.
The Fallo
WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals in CA-G. R. SP No. 17446 promulgated on July 31,
1995 is SET ASIDE.

99
In lieu thereof, the Court REVERSES the decision of the Regional Trial Court and RECOGNIZES as VALID the decree of divorce
granted in favor of the deceased Lorenzo N. Llorente by the Superior Court of the State of California in and for the County of
San Diego, made final on December 4, 1952.
Further, the Court REMANDS the cases to the court of origin for determination of the intrinsic validity of Lorenzo N. Llorente’s
will and determination of the parties’ successional rights allowing proof of foreign law with instructions that the trial court shall
proceed with all deliberate dispatch to settle the estate of the deceased within the framework of the Rules of Court.
No costs.
SO ORDERED.

100
G.R. No. L-54919 May 30, 1984
POLLY CAYETANO, petitioner,
vs.
HON. TOMAS T. LEONIDAS, in his capacity as the Presiding Judge of Branch XXXVIII, Court of First Instance of Manila and
NENITA CAMPOS PAGUIA, respondents.
Ermelo P. Guzman for petitioner.
Armando Z. Gonzales for private respondent.

GUTIERREZ, JR., J.:

This is a petition for review on certiorari, seeking to annul the order of the respondent judge of the Court of First Instance of
Manila, Branch XXXVIII, which admitted to and allowed the probate of the last will and testament of Adoracion C. Campos, after
an ex-parte presentation of evidence by herein private respondent.
On January 31, 1977, Adoracion C. Campos died, leaving her father, petitioner Hermogenes Campos and her sisters, private
respondent Nenita C. Paguia, Remedios C. Lopez and Marieta C. Medina as the surviving heirs. As Hermogenes Campos was the
only compulsory heir, he executed an Affidavit of Adjudication under Rule 74, Section I of the Rules of Court whereby he
adjudicated unto himself the ownership of the entire estate of the deceased Adoracion Campos.
Eleven months after, on November 25, 1977, Nenita C. Paguia filed a petition for the reprobate of a will of the deceased,
Adoracion Campos, which was allegedly executed in the United States and for her appointment as administratrix of the estate
of the deceased testatrix.
In her petition, Nenita alleged that the testatrix was an American citizen at the time of her death and was a permanent resident
of 4633 Ditman Street, Philadelphia, Pennsylvania, U.S.A.; that the testatrix died in Manila on January 31, 1977 while
temporarily residing with her sister at 2167 Leveriza, Malate, Manila; that during her lifetime, the testatrix made her last wig
and testament on July 10, 1975, according to the laws of Pennsylvania, U.S.A., nominating Wilfredo Barzaga of New Jersey as
executor; that after the testatrix death, her last will and testament was presented, probated, allowed, and registered with the
Registry of Wins at the County of Philadelphia, U.S.A., that Clement L. McLaughlin, the administrator who was appointed after
Dr. Barzaga had declined and waived his appointment as executor in favor of the former, is also a resident of Philadelphia,
U.S.A., and that therefore, there is an urgent need for the appointment of an administratrix to administer and eventually
distribute the properties of the estate located in the Philippines.
On January 11, 1978, an opposition to the reprobate of the will was filed by herein petitioner alleging among other things, that
he has every reason to believe that the will in question is a forgery; that the intrinsic provisions of the will are null and void; and
that even if pertinent American laws on intrinsic provisions are invoked, the same could not apply inasmuch as they would work
injustice and injury to him.
On December 1, 1978, however, the petitioner through his counsel, Atty. Franco Loyola, filed a Motion to Dismiss Opposition
(With Waiver of Rights or Interests) stating that he "has been able to verify the veracity thereof (of the will) and now confirms
the same to be truly the probated will of his daughter Adoracion." Hence, an ex-parte presentation of evidence for the
reprobate of the questioned will was made.
On January 10, 1979, the respondent judge issued an order, to wit:
At the hearing, it has been satisfactorily established that Adoracion C. Campos, in her lifetime, was a citizen of the United States
of America with a permanent residence at 4633 Ditman Street, Philadelphia, PA 19124, (Exhibit D) that when alive, Adoracion C.
Campos executed a Last Will and Testament in the county of Philadelphia, Pennsylvania, U.S.A., according to the laws thereat
(Exhibits E-3 to E-3-b) that while in temporary sojourn in the Philippines, Adoracion C. Campos died in the City of Manila (Exhibit
C) leaving property both in the Philippines and in the United States of America; that the Last Will and Testament of the late
Adoracion C. Campos was admitted and granted probate by the Orphan's Court Division of the Court of Common Pleas, the
probate court of the Commonwealth of Pennsylvania, County of Philadelphia, U.S.A., and letters of administration were issued
in favor of Clement J. McLaughlin all in accordance with the laws of the said foreign country on procedure and allowance of
wills (Exhibits E to E-10); and that the petitioner is not suffering from any disqualification which would render her unfit as
administratrix of the estate in the Philippines of the late Adoracion C. Campos.
WHEREFORE, the Last Will and Testament of the late Adoracion C. Campos is hereby admitted to and allowed probate in the
Philippines, and Nenita Campos Paguia is hereby appointed Administratrix of the estate of said decedent; let Letters of
Administration with the Will annexed issue in favor of said Administratrix upon her filing of a bond in the amount of P5,000.00
conditioned under the provisions of Section I, Rule 81 of the Rules of Court.

101
Another manifestation was filed by the petitioner on April 14, 1979, confirming the withdrawal of his opposition,
acknowledging the same to be his voluntary act and deed.
On May 25, 1979, Hermogenes Campos filed a petition for relief, praying that the order allowing the will be set aside on the
ground that the withdrawal of his opposition to the same was secured through fraudulent means. According to him, the
"Motion to Dismiss Opposition" was inserted among the papers which he signed in connection with two Deeds of Conditional
Sales which he executed with the Construction and Development Corporation of the Philippines (CDCP). He also alleged that
the lawyer who filed the withdrawal of the opposition was not his counsel-of-record in the special proceedings case.
The petition for relief was set for hearing but the petitioner failed to appear. He made several motions for postponement until
the hearing was set on May 29, 1980.
On May 18, 1980, petitioner filed another motion entitled "Motion to Vacate and/or Set Aside the Order of January 10, 1979,
and/or dismiss the case for lack of jurisdiction. In this motion, the notice of hearing provided:
Please include this motion in your calendar for hearing on May 29, 1980 at 8:30 in the morning for submission for
reconsideration and resolution of the Honorable Court. Until this Motion is resolved, may I also request for the future setting of
the case for hearing on the Oppositor's motion to set aside previously filed.
The hearing of May 29, 1980 was re-set by the court for June 19, 1980. When the case was called for hearing on this date, the
counsel for petitioner tried to argue his motion to vacate instead of adducing evidence in support of the petition for relief.
Thus, the respondent judge issued an order dismissing the petition for relief for failure to present evidence in support thereof.
Petitioner filed a motion for reconsideration but the same was denied. In the same order, respondent judge also denied the
motion to vacate for lack of merit. Hence, this petition.
Meanwhile, on June 6,1982, petitioner Hermogenes Campos died and left a will, which, incidentally has been questioned by the
respondent, his children and forced heirs as, on its face, patently null and void, and a fabrication, appointing Polly Cayetano as
the executrix of his last will and testament. Cayetano, therefore, filed a motion to substitute herself as petitioner in the instant
case which was granted by the court on September 13, 1982.
A motion to dismiss the petition on the ground that the rights of the petitioner Hermogenes Campos merged upon his death
with the rights of the respondent and her sisters, only remaining children and forced heirs was denied on September 12, 1983.
Petitioner Cayetano persists with the allegations that the respondent judge acted without or in excess of his jurisdiction when:
1) He ruled the petitioner lost his standing in court deprived the Right to Notice (sic) upon the filing of the Motion to Dismiss
opposition with waiver of rights or interests against the estate of deceased Adoracion C. Campos, thus, paving the way for the
hearing ex-parte of the petition for the probate of decedent will.
2) He ruled that petitioner can waive, renounce or repudiate (not made in a public or authenticated instrument), or by way of a
petition presented to the court but by way of a motion presented prior to an order for the distribution of the estate-the law
especially providing that repudiation of an inheritance must be presented, within 30 days after it has issued an order for the
distribution of the estate in accordance with the rules of Court.
3) He ruled that the right of a forced heir to his legitime can be divested by a decree admitting a will to probate in which no
provision is made for the forced heir in complete disregard of Law of Succession
4) He denied petitioner's petition for Relief on the ground that no evidence was adduced to support the Petition for Relief when
no Notice nor hearing was set to afford petitioner to prove the merit of his petition — a denial of the due process and a grave
abuse of discretion amounting to lack of jurisdiction.
5) He acquired no jurisdiction over the testate case, the fact that the Testator at the time of death was a usual resident of
Dasmariñas, Cavite, consequently Cavite Court of First Instance has exclusive jurisdiction over the case (De Borja vs. Tan, G.R.
No. L-7792, July 1955).
The first two issues raised by the petitioner are anchored on the allegation that the respondent judge acted with grave abuse of
discretion when he allowed the withdrawal of the petitioner's opposition to the reprobate of the will.
We find no grave abuse of discretion on the part of the respondent judge. No proof was adduced to support petitioner's
contention that the motion to withdraw was secured through fraudulent means and that Atty. Franco Loyola was not his
counsel of record. The records show that after the firing of the contested motion, the petitioner at a later date, filed a
manifestation wherein he confirmed that the Motion to Dismiss Opposition was his voluntary act and deed. Moreover, at the
time the motion was filed, the petitioner's former counsel, Atty. Jose P. Lagrosa had long withdrawn from the case and had
been substituted by Atty. Franco Loyola who in turn filed the motion. The present petitioner cannot, therefore, maintain that

102
the old man's attorney of record was Atty. Lagrosa at the time of filing the motion. Since the withdrawal was in order, the
respondent judge acted correctly in hearing the probate of the will ex-parte, there being no other opposition to the same.
The third issue raised deals with the validity of the provisions of the will. As a general rule, the probate court's authority is
limited only to the extrinsic validity of the will, the due execution thereof, the testatrix's testamentary capacity and the
compliance with the requisites or solemnities prescribed by law. The intrinsic validity of the will normally comes only after the
court has declared that the will has been duly authenticated. However, where practical considerations demand that the
intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue. (Maninang vs. Court of
Appeals, 114 SCRA 478).
In the case at bar, the petitioner maintains that since the respondent judge allowed the reprobate of Adoracion's will,
Hermogenes C. Campos was divested of his legitime which was reserved by the law for him.
This contention is without merit.
Although on its face, the will appeared to have preterited the petitioner and thus, the respondent judge should have denied its
reprobate outright, the private respondents have sufficiently established that Adoracion was, at the time of her death, an
American citizen and a permanent resident of Philadelphia, Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and 1039
of the Civil Code which respectively provide:
Art. 16 par. (2).
xxx xxx xxx
However, intestate and testamentary successions, both with respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person
whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein
said property may be found.
Art. 1039.
Capacity to succeed is governed by the law of the nation of the decedent.
the law which governs Adoracion Campo's will is the law of Pennsylvania, U.S.A., which is the national law of the decedent.
Although the parties admit that the Pennsylvania law does not provide for legitimes and that all the estate may be given away
by the testatrix to a complete stranger, the petitioner argues that such law should not apply because it would be contrary to
the sound and established public policy and would run counter to the specific provisions of Philippine Law.
It is a settled rule that as regards the intrinsic validity of the provisions of the will, as provided for by Article 16(2) and 1039 of
the Civil Code, the national law of the decedent must apply. This was squarely applied in the case of Bellis v. Bellis (20 SCRA 358)
wherein we ruled:
It is therefore evident that whatever public policy or good customs may be involved in our system of legitimes, Congress has
not intended to extend the same to the succession of foreign nationals. For it has specifically chosen to leave, inter alia, the
amount of successional rights, to the decedent's national law. Specific provisions must prevail over general ones.
xxx xxx xxx
The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and under the law of Texas,
there are no forced heirs or legitimes. Accordingly, since the intrinsic validity of the provision of the will and the amount of
successional rights are to be determined under Texas law, the Philippine Law on legitimes cannot be applied to the testacy of
Amos G. Bellis.
As regards the alleged absence of notice of hearing for the petition for relief, the records wig bear the fact that what was
repeatedly scheduled for hearing on separate dates until June 19, 1980 was the petitioner's petition for relief and not his
motion to vacate the order of January 10, 1979. There is no reason why the petitioner should have been led to believe
otherwise. The court even admonished the petitioner's failing to adduce evidence when his petition for relief was repeatedly
set for hearing. There was no denial of due process. The fact that he requested "for the future setting of the case for hearing . .
." did not mean that at the next hearing, the motion to vacate would be heard and given preference in lieu of the petition for
relief. Furthermore, such request should be embodied in a motion and not in a mere notice of hearing.
Finally, we find the contention of the petition as to the issue of jurisdiction utterly devoid of merit. Under Rule 73, Section 1, of
the Rules of Court, it is provided that:
SECTION 1. Where estate of deceased persons settled. — If the decedent is an inhabitant of the Philippines at the time of his
death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the

103
Court of First Instance in the province in which he resided at the time of his death, and if he is an inhabitant of a foreign
country, the Court of First Instance of any province in which he had estate. The court first taking cognizance of the settlement
of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court,
so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or
proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record.
Therefore, the settlement of the estate of Adoracion Campos was correctly filed with the Court of First Instance of Manila
where she had an estate since it was alleged and proven that Adoracion at the time of her death was a citizen and permanent
resident of Pennsylvania, United States of America and not a "usual resident of Cavite" as alleged by the petitioner. Moreover,
petitioner is now estopped from questioning the jurisdiction of the probate court in the petition for relief. It is a settled rule
that a party cannot invoke the jurisdiction of a court to secure affirmative relief, against his opponent and after failing to obtain
such relief, repudiate or question that same jurisdiction. (See Saulog Transit, Inc. vs. Hon. Manuel Lazaro, et al., G. R. No. 63
284, April 4, 1984).
WHEREFORE, the petition for certiorari and prohibition is hereby dismissed for lack of merit.
SO ORDERED.

104
G.R. Nos. L-46430-31 July 30, 1979
FRANCISCA ALSUA-BETTS, JOSEPH O. BETTS, JOSE MADARETA, ESTEBAN P. RAMIREZ, and THE REGISTER OF DEEDS FOR
ALBAY PROVINCE, petitioners,
vs.
COURT OF APPEALS, AMPARO ALSUA BUENVIAJE, FERNANDO BUENVIAJE, FERNANDO ALSUA, represented by his guardian,
CLOTILDE S. ALSUA and PABLO ALSUA, respondents.
Rafael Triumfante for petitioners.
Sabido-Sabido & Associates and Madrid Law Office for private respondents.

GUERRERO, J.:1äwphï1.ñët
This is an appeal by certiorari from the decision of the Court of Appeals in CA-G.R. Nos. 54492-R and 54493-R which reversed
the decision of the Court of First Instance of Albay allowing the probate of the win of Don Jesus Alsua in Special Proceedings No.
699 and dismissing the complaint in Civil Case 3068 after declaring the two deeds of sale executed by Don Jesus Alsua legal and
valid. The respondent court 1 denied the probate of the will, declared null and void the two sales subject of the complaint and
ordered the defendants, petitioners herein, to pay damages to the plaintiffs, now the private respondents, the sum of Five
Thousand Pesos (P5,000.00), to render an accounting of the properties in their possession and to reimburse the latter the net
gain in the proportion that appertains to them in the properties from the date of the firing of the complaint up to complete
restoration plus Fifty Thousand Pesos (P50,000.00) as attorney's fees and costs.
The antecedent events leading to the filing of these two consolidated actions are the following.
On November 25, 1949, Don Jesus Alsua and his wife, Doñ;a Florentina Rella, both of Ligao, Albay, together with all their living
children, Francisca Alsua-Betts, Pablo Alsua, Fernando Alsua thru this judicial guardian Clotilde Samson, and Amparo Alsua de
Buenviaje, entered into a duly notarized agreement, Escritura de Particion Extrajudicial (Exhibit 8), over the then present and
existing properties of the spouses Don Jesus and Doñ;a Florentina enumerated in a prepared inventory, Exhibit 8-A, the
essential features of which are stated in private respondents' Brief, pp. 26-29, to wit: têñ.£îhqwâ£
(1) Basis of the partition: Inventory (Annex A) of all the properties of the Alsua spouses, which inventory consists of 97 pages, all
of them signed by the spouses and all the above named heirs in the left margin of every page (parafo primers).
(2) An acknowledgment of the spouses that all the properties described in the inventory (Annex A) are conjugal properties with
the exception of five parcels of land Identified with the figures of 1 to 5 and 30 shares of San Miguel Brewery stock which are
paraphernal properties of the late Doñ;a Tinay (segundo parafo).
(3) An acknowledgment that during their marriage, they had nine children but five of them died minors, unmarried (parafo
tercero y cuatro).
(4) An acknowledgment that on the basis of Article 1056 of the Civil Code (old) to avoid Possible misunderstanding among their
children concerning the inheritance they are entitled to in the event of death of one of them they have decided to effectuate an
extrajudicial partition of all the properties described in Annex "A" thereto under the following terms and conditions: (Parafo
quinto):
To Francisca Alsua, married to Joseph O. Betts were allotted or assigned all the real properties with the improvements thereon
specifically described from pages 1-12 of said inventory or, 34 parcels of land with a total land area of 5,720,364 sq. meters,
with a book or appraised value of P69,740.00.
To Pablo Alsua, married to Teresa Locsin were allotted or assigned all the real properties with the improvements thereon
specifically described from pages 12-20 of said inventory or, 26 parcels of land with a total land area of 5,679,262 sq. meters,
with a book or appraised value of P55,940.00.
To Fernando Alsua, married to Clotilde Samson were allotted or assigned all the real properties with the improvements thereon
specifically described from pages 20-33 of said inventory or, 47 parcels of land with a total land area of 6,639,810 sq. meters,
with a book or appraised value of P89,300.00.
To Amparo Alsua, married to Fernando Buenviaje were allotted or assigned all the real properties with the improvements
thereon specifically described from pages 33-47 of said inventory or, 47 parcels of land with a total land area of 5,630,715 sq.
meters, with a book or appraised value of P58,830.00. têñ.£îhqwâ£

105
(a) Each and every one of the heirs named above acknowledge and admit that the totality of the properties allotted and
adjudicated to the heirs as described in the preceding paragraph, constitute one half of the properties described in Annex "A",
including any amount of cash deposited.
(b) That all the heirs acknowledge and admit that all the properties assigned to them as their hereditary portion represent one-
half not only of the conjugal properties but includes the paraphernal properties — waiving now and forever any complaint or
claim they have or they may have concerning the amount, value, extension and location of the properties that are allotted to
each and everyone. They also waive any claim they have or they may have over the remaining portion of the properties, which
spouses reserved for themselves.
(c) That in case of death of one of the spouses, each and everyone of the heirs acknowledge that the properties which are left in
the possession of the surviving spouse, including any amount in cash, are even less than the one- half that should correspond in
absolute ownership as his legitimate participation in the conjugal properties. In consequence they waive any claim that they
have or may have over said portion of said properties or any amount in cash during the lifetime of the surviving spouse,
including any right or claim they have or they may have over the paraphernal properties of Doñ;a Tinay in the event the
surviving spouse is Don Jesus.
(d) The spouses on their part in case of death of any one of them, the surviving spouse waives any claim he or she may have
over the properties assigned or adjudicated to the heirs under and by virtue of this deed. The properties which were reserved
for them (the spouses) should be considered as his or her legitimate participation in the conjugal properties and the fair
compensation of his or her usufruct on the properties that the surviving spouse reserved for himself or herself which shag be
distributed in equal shares among the heirs upon his or her death unless said properties of some of them have been disposed of
during the lifetime of the surviving spouse.
(e) Any heir who may dare question the validity and legitimacy of the provision contained herein shall be under obligation to
pay to the other heirs, in the concept of damages and prejudice, the sum of P5,000.00 plus attorney's fees.
(f) The provisions of this deed shall bind the successors of the herein heirs.
(g) In the event of death of one of the spouses, the properties assigned or adjudicated to each and everyone of the heirs shall
be considered as his share or participation in the estate or as his inheritance left by the deceased and each heir shall become
the absolute owner of the properties adjudicated to him under this deed.
On January 5, 1955, Don Jesus and Doñ;a Florentina, also known as Doñ;a Tinay separately executed their respective
holographic wills (Exhs. 6-B and 7-B), the provisions of which were in conformity and in implementation of the extrajudicial
partition of November 25, 1949. Their holographic wills similarly provided for the institution of the other to his or her share in
the conjugal properties, the other half of the conjugal assets having been partitioned to constitute their legitime among their
four living children in the Extrajudicial Partition of 1949. The wigs also declared that in the event of future acquisitions of other
properties by either of them, one-half thereof would belong to the other spouse, and the other half shall be divided equally
among the four children. The holographic will of Doñ;a Tinay written in Spanish reads, as translated: têñ.£îhqwâ£
TESTAMENT
I, FLORENTINA R. DE ALSUA, 67 years old, Filipina, married to Don Jesus Alsua, resident of and with postal address in the
Municipality of Ligao, Province of Albay, Philippines, being in the full possession of my mental and physical faculties freely and
spontaneously execute this my last will and testament in my handwriting and signed by me and expressed in the Spanish
language which I speak, write and understand, this 5th day of January, 1955 in the Municipality of Ligao, Province of Albay, and
in which I ordain and provide:
First: That in or about the year 1906 I was married to my husband Don Jesus Alsua and begot nine (9) children with him, four (4)
of whom are still living and they are Francisco Alsua, Pablo Alsua, Fernando Alsua and Amparo Alsua. The other five (5) died
during their minority, single and without children.
Second: That after my marriage to my husband Don Jesus Alsua and during our conjugal union, and as a result of our efforts and
industry, we were able to acquire conjugal properties consisting of abaca (abales) and cacao lands and urban lands registered in
the office of the Registry of Property of the Province of Albay and in the City of Manila.
Third: That I institute as my heirs with right to inherit the following- my spouse Don Jesus Alsua, one-half (1/2) of my properties,
real and personal, and the other half, to my children Francisco Alsua, married to Joseph O. Betts, Pablo Alsua, Fernando Alsua,
married to Clotilde Samson, and Amparo Alsua, married to Fernando Buenviaje, in equal parts. It is to be understood, however,
that the other half that corresponds as legitime to my above named children have already been given to them, pursuant to a
document dated November 25, 1949 and ratified on the same day, month and year before Notary Public Segundo G. Flores
(Reg. No. 525; Pag. 15; Lib. 11; Series of 1949) enjoining each and everyone of them to respect and faithfully comply with each
and every clause contained in the said document.

106
Fourth: That should I acquire new properties after the execution of this testament, the same shall be partitioned among my
spouse and above named children or the children mentioned in above par. 3 in the same proportion that is, one-half (1 1/2) to
my spouse; and the other half to my children in equal parts.
Fifth: That I name as my executor my husband Don Jesus Alsua without having to post any bond.
IN VIRTUE WHEREOF, I hereby sign in my own handwriting this testament on this 5th day of January, 1955 in the Municipality of
Ligao, Province of Albay, Philippines. têñ.£îhqwâ£
(SGD.) FLORENTINA R. DE ALSUA
(Joint Record on appeal pp. 420-423, CA-G.R. No. 54492-R)
As previously stated, Don Jesus Alsua executed a separate but similar holographic will on the same day, Jan. 5, 1955 in exactly
the same terms and conditions as the above will of his wife.
On May 21, 1956, the spouses Don Jesus and Doñ;a Tinay filed before the Court of First Instance of Albay their respective
petitions for the probate of their respective holographic wins which were docketed as Special Proceedings No. 484 (Jesus Alsua,
Petitioner) and Special Proceedings No. 485 (Doñ;a Florentina Ralla de Alsua, Petitioner).
On August 14, 1956, the spouses Don Jesus and Doñ;a Tinay executed their mutual and reciprocal codicils amending and
supplementing their respective holographic wins. Again, the codicils similarly acknowledged and provided that one-half of all
the properties of the spouses, conjugal and paraphernal, had been disposed of, conveyed to and partitioned among their
legitimate heirs in the "Escritura de Particion" of November 25, 1949, but that they reserved for themselves (the spouses Don
Jesus and Doñ;a Tinay) the other half or those not disposed of to the said legitimate heirs under the above agreement of
partition, and that they mutually and reciprocally bequeathed unto each other their participation therein as well as in all
properties which might be acquired subsequently. Each spouse also declared that should she or he be the surviving spouse,
whatever belongs to him or her or would pertain to him or her, would be divided equally among the four children. It was also
declared in both codicils that upon the death of either of the spouses, the surviving spouse was designated mutually and
reciprocally as the executor or administrator of all the properties reserved for themselves.
The codicil executed by Doñ;a Tinay, written in Spanish reads, as translated: têñ.£îhqwâ£
CODICIL
This codicil supplements and amends the preceding testament. That my spouse and I have agreed to divide the properties
which we have acquired into 2 parts. The 1/2 that would correspond to me covers all the properties that I have partitioned
among my children in the Document of Partition dated November 25, 1949 before Notary Public Segundo G. Flores, Jr. (Doc.
No. 525; Pag. No. 15; Lib. No. 11; Series of 1949) (and) even as the properties which by reason of this testament I leave to my
husband as his share and the other half that corresponds to my husband constitutes an the properties that up to now have not
been disposed of, particularly the urban lands situated in Legaspi, Albay, Ligao of the Province of Albay and in the City of
Manila, with the exception of that portion that I bequeath to my husband as his inheritance and his legitimate.
That I institute as my heirs with the right to inherit my husband Don Jesus Alsua and my children Francisco Alsua, Pablo Alsua,
Fernando Alsua and Amparo Alsua. I leave to my aforecited children all the properties described in the above mentioned
Document of Partition dated November 25, 1949 which correspond to each one of them and in the profits (fruits) expressed in
the same, and in the event that the properties granted to one or any of my children should exceed in quantity or value those
corresponding to another or others, I hereby declare that it is my will that the same be divided among my children as their
inheritance from the free portion of my property.
I leave to my spouse Don Jesus Alsua as his legitime and as Ws inheritance the part of the free portion of my property which
have not been allocated in favor of my children in the Document of Partition aforecited and that which should exceed 1/2 of
the conjugal property of gains that pertains to him as above stated, including all those properties which we shall acquire after
the execution of this document.
In case it should be God's will that I survive my spouse, I hereby declare that it is my will that any and all kinds of property that
pertain to me or would pertain to me, which have not been disposed of pursuant to the partition, should be divided equally
among my above-mentioned heirs after my death. Ligao, Albay, Philippines, August 14,1956. têñ.£îhqwâ£
(SGD.) FLORENTINA RALLA DE ALSUA
(joint Record on Appeal pp. 423-425, CA-G.R. No. 54492-R)
And as stated previously, on the same day, August 14, 1956, Don Jesus executed also a separate but similar codicil in exactly the
same terms and conditions as the above codicil of his wife. Also on the same day of August 14, 1956, the spouses Don Jesus and
Doñ;a Tinay both filed their respective supplemental petitions for the probate of their respective codicils in the probate

107
proceedings earlier filed. On February 19, 1957, their respective holographic wins and the codicils thereto were duly admitted
to probate.
Upon the death of Doñ;a Tinay on October 2, 1959, Don Jesus was named executor to serve without bond in an order issued by
the probate court on October 13, 1959. Letters testamentary having been issued in favor of Don Jesus, he took his oath of office
and performed his duties as such until July 1, 1960.
Thereafter in the early part of November, 1959, Don Jesus cancelled his holographic will in the presence of his bookkeeper and
secretary, Esteban P. Ramirez, whom he instructed to make a list of all his remaining properties with their corresponding
descriptions. His lawyer, Atty. Gregorio imperial Sr. was then instructed to draft a new will which was duly signed by Don Jesus
and his attesting witnesses on November 14, 1959 at Ms home in Ligao, Albay. This notarial will and testament (Exh. A) of Don
Jesus executed on November 14, 1959 had three essential features: (a) it expressly cancelled, revoked and annulled all the
provisions of Don Jesus' holographic will of January 5, 1955 and his codicil of August 14, 1956; (b) it provided for the collation of
all his properties donated to his four living children by virtue of the "Escritura de Particion Extra. judicial" of 1949, and that such
properties be taken into account in the partition of his estate among the children; and (c) it instituted his children as
legatees/devisees of certain specific properties, and as to the rest of the properties and whatever may be subsequently
acquired in the future, before his death, were to be given to Francisca and Pablo, naming Francesca as executrix to serve
without a bond.
After all debts, funeral charges and other expenses of the estate of Doñ;a Tinay had been paid, all her heirs including Don Jesus,
submitted to the probate court for approval a deed of partition executed on December 19, 1959 (Exh. 7-Q) and which
essentially confirmed the provisions of the partition of 1949, the holographic will and codicil of Doñ;a Tinay. On July 6, 1960, the
court approved the partition of 1959 and on January 6, 1961 declared the termination of the proceedings on the estate of
Doñ;a Tinay.
On May 6,1964, Don Jesus Alsua died.
On May 20, 1964, petitioner herein Francisca Alsua Betts, as the executrix named in the will of November 14, 1959, filed a
petition for the probate of said new will of Don Jesus Alsua before the Court of First Instance of Albay and was docketed as
Special Proceedings No. 699. Oppositions thereto were filed by Pablo, Amparo and Fernando, thru his judicial guardian Clotilde
Samson, on the following grounds: (a) that Don Jesus was not of sound and disposing mind at the time of the execution of the
alleged will; (b) that the will was executed under duress or influence of fear or threats; or it was procured by undue and
improper pressure and influence on the part of the main beneficiaries and of person or persons in collusion with them, or the
signature of the testator was secured by or thru fraud; (c) that the will was not executed according to the formal requirements
of the law; and (d) that the alleged will subject of probate contravened the Extrajudicial Partition of 1949 agreed upon by him,
his deceased spouse, Doñ;a Tinay, and all his children, Francisco, Pablo, Amparo and Fernando thru his judicial guardian Clotilde
Samson, and also contravened Don Jesus' own probated holographic will and codicil of 1955 and 1956, respectively, essentially
confirming and implementing the said partition of 1949 which had already been partially executed by all the signatories thereto
in the partition of the estate of Doñ;a Tinay in December, 1959.
On the basis of Francisca's designation as executrix in the new will dated November 14, 1959, the Probate Court appointed her
Administratrix of the estate of her late father, Don Jesus Alsua. She then filed with the Probate Court an inventory of the
properties of the estate which, according to the oppositors therein (the private respondents now) did not include some
properties appearing in the agreement of November 25. 1949 or in the inventory attached thereto as Annex "A" and in the
"Escritura de Particion" of December 19, 1959 as belonging to or should pertain to Don Jesus. According to the oppositors,
these properties consist of thirty- three (33) premium agricultural lots with a total land area of 1,187,970 square meters, or
approximately 119 hectares and with a total assessed value of P48,410.00 or a probable total market value of P238,000.00 at
only P2,000.00 per hectare, and four (4) commercial urban lots Ideally located in the business section of Legazpi City including
the lot and the building presently occupied by the well-known "Mayon Hotel" with an assessed value of approximately
P117,260.00 or a probable market value at the time of P469,040.00. It appearing from the new will that these properties were
bequeathed to Pablo Alsua and Francisco Alsua-Betts, specifically, 3 parcels of the 33 agricultural lands to Pablo and the rest to
Francisco, the oppositors also raised in issue the non-inclusion of said properties in the inventory of the estate of their late
father. In answer, Francisco claimed ownership over the same, alleging that she bought the properties from their father and
presenting the two Deeds of Sale now being assailed, one dated August 26, 1961 purporting to show the sale of the 33 parcels
of agricultural land to Francisco by their father for the price of P70,000.00 and the other dated November 26, 1962 evidencing
the sale of the four urban lots for the sum of P80,000.00. Claiming fraud in the sales, the oppositors filed Civil Case No. 3068,
seeking the annulment of the aforesaid two deeds of sale, with damages, which upon agreement of the parties was then jointly
heard and tried with Special Proceedings No. 699 for probate of the Last Will and Testament of Don Jesus executed on
November 14, 1959.
After a joint hearing of the merits of these two cases, the Court of First Instance of Albay promulgated a decision on January 15,
1973, the dispositive portion of which states: têñ.£îhqwâ£

108
WHEREFORE, in view of all the foregoing, judgment is hereby rendered, to wit:
1. In Special Proceedings 699, the Court hereby APPROVES and ALLOWS the Will executed by Don Jesus Alsua at Ligao, Albay,
on November 14, 1959, which had been marked as Exhibit A, consisting of nine (9) pages, and orders that the same be made
the basis for division and distribution of the estate of said testator;
2. In Civil Case 3068, the Court hereby dismisses the complaint and holds that the sale on August 26, 1961 (Exh. U) and the sale
on November 26, 1962 (Exh. W), are lawful and valid sales and accordingly conveyed title to the VENDEE thereof. The Plaintiffs
in Civil Case 3068. are ordered jointly and severally to pay to the defendant, Francisco Alsua Betts Fifty Thousand Pesos
(P50,000.00) as damages and Fifty Thousand (P50,000.00) Pesos for attorney's fees or a total of One Hundred Thousand Pesos
(P100,000.00) and to pay the costs.
On appeal by herein respondents to the Court of Appeals, the court reversed the appealed decision in a judgment rendered on
April 4, 1977, the dispositive portion of which states, as translated, thus —têñ.£îhqwâ£
IN VIEW OF THE FOREGOING, this Tribunal finds itself constrained to set aside as it hereby sets aside the decision appealed
from in the following manner: (1) in Special Proceedings 699, the probate of the will, Exh. A, is hereby denied; (2) in Civil Case
No. 3068, Exhs. U and W and the titles issued on the basis thereof are hereby declared null and void, ordering the appellees
Francisco Alsua and Joseph Betts to pay to the plaintiffs in the concept of fixed damages, the sum of P5,000.00 and to render an
accounting of properties in their possession and to reimburse the plaintiffs the net gain, in the proportion that appertains to
them in the properties subject of litigation in Civil Case No. 3068 from the date of the filing of this complaint, up to the
complete restoration of the properties pertaining to (plaintiffs) pursuant to Article 2208 of the New Civil Code, paragraph 11,
ordering them in addition to pay to the plaintiffs and oppositors the sum of P50,000.00 as attorney's fees, and the costs.
Hence, the petition at bar assailing the respondent court's decision on four assigned errors, to wit: têñ.£îhqwâ£
I. The respondent Court of Appeals erred in not affirming the findings of the probate court (Special Proceedings No. 699) that
private respondents, oppositors to the probate of the will, are in estoppel to question the competence of testator Don Jesus
Alsua.
II. The respondent Court of Appeals grossly erred in holding that testator Don Jesus Alsua cannot revoke his previous will.
III. The respondent court's finding is grounded entirely on speculation, surmises or conjectures resulting in a gross
misapprehension of facts.
IV. The respondent court grossly erred in annulling the sales of August 26, 1961 (Exh. U), and of November 26, 1962 (Exh. W).
On the first issue of estoppel raised in the assignment of errors, We hold that the same is of no moment. The controversy as to
the competency or incompetency of Don Jesus Alsua to execute his will cannot be determined by acts of the herein private
respondents as oppositors to the will in formally agreeing in writing jointly with the petitioner Francisca Alsua de Betts that
their father, Don Jesus Alsua, be appointed by the court executor of the will of their mother in Special Proceedings No. 485,
Testate Estate of Doñ;a Florentina Ralla de Alsua and in subsequently petitioning the court not to require Don Jesus Alsua to file
any accounting as executor in the proceedings, which petitioners claim and was upheld by the trial court as constituting
estoppel on the part of the private respondents from questioning the competence of Don Jesus Alsua.
The principle of estoppel is not applicable in probate proceedings, a ruling laid down in the case of Testate Estate of the Late
Procopia Apostol Benedicta Obispo, et al vs. Remedios Obispo, 50 O.G. 614, penned by Justice J.B.L. Reyes, an eminent and
recognized authority on Civil Law when he was still in the Court of Appeals, and We quote: têñ.£îhqwâ£
Finally, probate proceedings involve public interest, and the application therein of the rile of estoppel, when it win block the
ascertainment of the truth as to the circumstances surrounding the execution of a testament, would seem inimical to public
policy. Over and above the interest of private parties is that of the state to see that testamentary dispositions be carried out if,
and only if, executed conformably to law.
The Supreme Court of New York aptly said in Re Canfield's Will, 300 N.Y.S., 502: têñ.£îhqwâ£
'The primary purpose of the proceeding is not to establish the existence of the right of any living person, but to determine
whether or not the decedent has performed the acts specified by the pertinent statutes, which are the essential prerequisites
to personal direction of the mode of devolution of his property on death. There is no legal but merely a moral duty resting upon
a proponent to attempt to validate the wishes of the departed, and he may and frequently does receive no personal benefit
from the performance of the act.
One of the most fundamental conceptions of probate law, is that it is the duty of the court to effectuate, in so far as may be
compatible with the public interest, the devolutionary wishes of a deceased person (Matter of Watson's Wilt 262 N.Y., 284, 294,
186, N.E., 787; Matter of Marriman's Estate, 124 Misc. 320, 325, 208, N.Y.S., 672; Foley, S., affirmed 217 app. Div., 733, 216

109
N.Y.S., 126, Henderson, S., Matter of Draske's Estate, 160 Misc. 587, 593, 290, N.Y.S., 581). To that end, the court is, in effect, an
additional party to every litigation affecting the disposal of the assets of the deceased. Matter of Van Valkenburgh's Estate, 164
Misc. 295, 298, N.Y.S., 219.'
The next issue that commands Our attention is whether the respondent court erred in not allowing the probate of the last will
and testament of Don Jesus Alsua. Petitioners claim that the disallowance was based on speculations, surmises or conjectures,
disregarding the facts as found by the trial court. The Civil Court is very clear and explicit in providing the cases where a will may
be disallowed under Article 839 which provides as follows: têñ.£îhqwâ£
Art. 839. The will shall be disallowed in any of the following cases:
(1) If the formalities required by law have not been complied with;
(2) If the testator was insane, or otherwise mentally incapable of making a wilt at the time of its execution;
(3) If it was executed through force or under duress, or the influence of fear, or threats;
(4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person;
(5) If the signature of the testator was procured by fraud,
(6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his
signature thereto.
The issue under consideration appears to Us to have been answered by the respondent court itself when it accepted the
findings of the trial court on the due execution of the questioned will and testament of Don Jesus, declaring: têñ.£îhqwâ£
... and going back to the previous question, whether the questioned will and testament of November 14, 1959, Exh. A, was
executed in accordance with Arts. 805-809 of the New Civil Code, this Tribunal from the very beginning accepts the findings of
the inferior court concerning the question, têñ.£îhqwâ£
On October 2, 1959, Doñ;a Florentina died at Ligao, Albay. About 2 weeks after said death of his wife, Don Jesus Alsua decided
to make a new will, thereby revoking and cancelling his previous holographic will which he made on January 5, 1955 and also its
codicil dated August 14, 1956. In the presence of his bookkeeper and secretary, Esteban P. Ramirez, he crossed out in ink each
and every page of said page he wrote on each page the word "cancelado", and affixed his signature thereon (Exh V-5, V-6,
consecutively up to and including Exh. V-14). He then instructed Ramirez to make a list of all s properties with their
corresponding descriptions.
Meanwhile, Don Jesus Alsua sent for his lawyer, Don Gregorio Imperial, Sr. and the latter came accompanied by his son, Atty.
Jorge S, Imperial, who, incidentally, is now a judge of the Court of First Instance of Naga City, Camarines Sur. Don Jesus
informed his lawyers that he wanted to make a new will, and accordingly gave more detailed instructions as to how he wanted
to divide his properties among his four children. He handed to them a list and on the left he indicated the name of the child to
whom the listed properties shall pertain. Atty. Jorge Imperial took notes of the instructions of Don Jesus Alsua. To Don Jesus,
Spanish is his major language, as in fact his conversations with Don Gregorio are always in Spanish. A few days before
November 14, 1959, Atty. Jorge S. Imperial showed to Don Jesus the semi-final draft of the will and after reading it Don Jesus
said that it was as directed by him, and after making a few minor corrections, he instructed Atty. Jorge S. Imperial to put the
win in final form. He further told Atty, Jorge Imperial that the signing of the will should be at his home in Ligao, in the morning
of November 14, 1959, and that the witnesses should be Mr. Ramon Balana, the then Register of Deeds of Albay; Mr. Jose
Madarieta who is a friend of the family; and Mr. Jose Gaya who is a sort of employee of Don Jesus.
Thus in the morning of November 14, 1959, Don Gregorio and Atty. Jorge S. Imperial, riding in a sedan, stopped at the Legaspi
residence of Mr. Ramon Balana, and informed the latter that Don Jesus was requesting him to be one of the attesting witnesses
to his will. Mr. Balana, having a very high regard for Don Jesus, considered it an honor to be so asked, and gladly went with the
Imperials. They arrived at the residence of Don Jesus at Ligao; Albay, almost ten o'clock of that morning, and they were ushered
in by Mr. Jose Gaya, and the latter requested them to be seated at the usual receiving room on the ground floor while he
announced their arrival to Don Jesus who was on the second floor. Soon Don Jesus came down, carrying with him the will to be
signed placed inside a cartolina folder. He greeted Don Gregorio, Mr. Balan, and Atty. Imperial and immediately joined them in
conversation. Mr. Gaya called for Mr. Jose Madarieta, whose residence is just across the road from the house of Don Jesus. Mr.
Madarieta was already informed by Don Jesus himself about the fact of signing the will that morning, and so, on being advised
by Mr. Gaya that the Imperials had already arrived, Madarieta proceeded to the residence of Don Jesus, without much delay.
With the coming of Madarieta and the coming back of Gaya, there were now six people gathered in the living room, namely:
Don Jesus Alsua, Don Gregorio Imperial Atty. Jorge S. Imperial Mr. Ramon Balana, Mr. Jose Madarieta, and Mr. Jose Gaya. All
the witnesses who testified for the petitioner declared that Don Jesus was in bright and lively conversation which ran from

110
problems of farming and the merits of French-made wines. At 1 1:00 o'clock, Don Gregorio made a remark that it is about time
to do what they were there for, and this was followed by a more or less statement from Jesus, who said: têñ.£îhqwâ£
'Preisamente es por lo que he Hamado a ustedes que esten presentes para ser testigos de rni ultimo voluntad y testamento que
ha sido preparado por el abogado Sr. Gregorio Imperial segun mis instrucciones cuyo documento tengo aqui conmigo y
encuentro que, despues de lo he leido, esta satisfactoriamente hecho segun mis instrucciones, Como saben ustedes tengo
cuatro (4) hijos todos egos.' (pp. 43-44, t.s.n., hearing of December 7, 1967, Sarte.
On request of Don Jesus, all of them moved to the big round table on another part of the same sala for convenience in signing
because there were chairs all around this table. The will which consisted of nine pages, with a duplicate, and triplicate was laid
on the round table and the signing began, with Atty. Jorge S. Imperial assisting each person signing by indicating the proper
place where the signature shall be written. Don Jesus, as testator, signed first. After signing the original and the two other sets,
the three sets were then passed to Mr. Ramon Balana who signed as attesting witness. After Mr. Balana, Mr. Jose Madarieta
signed next as another attesting witness, and when Mr. Madarieta finished signing all the three sets, the same were passed to
Mr. Jose Gaya who also signed as the third attesting witness. On each of the three sets, Don Jesus signed ten times, — one on
the margin of each of the nine pages, and at the end of the instrument proper. Each of the three attesting witnesses (Balana,
Madarieta and Gaya) signed eleven times on each set, — one on the margin of each of the nine pages, one at the end of the
instrument proper and one below the attestation clause. The original will was marked as Exh. A (or set A); the duplicate as Exh.
K (or set K) and the triplicate of Don Jesus, Mr. Balana, Mr. Madarieta, and Mr. Gaya were Identified by Mr. Balana, Mr.
Madarieta and Atty. (now Judge) imperial. It was also clearly established that when Don Jesus signed the will Mr. Balana, Mr.
Madarieta, and Mr. Gaya were present and witnessed said signing, and that when each of these three witnesses was signing,
Don Jesus and the two other attesting witnesses were present and Witnessing said Signing. The signing by the testator and the
attesting witnesses having been completed, Atty. Jorge S. Imperial as Notary Public with commission for the entire province of
Albay, notarized the wilt and sealed it with his notarial seat which seal he brought along that morning. After all the three sets
were notarized, they were all given back to Don Jesus who placed them inside the same folder. At that moment, it was already
about 12:30 P.M. and Don Jesus invited all of them to lunch, which invitation was gladly accepted by all of then-L (pp. 474-480,
Joint Record on Appeal in CA-G.R. No. 54492-R)
which findings are supported by the evidence, - it is quite difficult to conclude that the same had not complied with the
requirements of Arts. 804- 806 of the New Civil Code. ... (CA Decision, pp. 13-16, as translated).
This cited portion of the appealed decision accepts as a fact that the findings of the lower court declaring the contested will as
having been executed with all the formal requirements of a valid will, are supported by the evidence. This finding is conclusive
upon this Tribunal and We cannot alter, review or revise the same. Hence, there is no further need for Us to dwell on the
matter as both the lower court and the respondent appellate court have declared that these are the facts and such facts are
fully borne and supported by the records. We find no error in the conclusion arrived at that the contested will was duly
executed in accordance with law. We rule that the questioned last will and testament of Don Jesus Alsua fully complied with
the formal requirements of the law.
Respondent court, however, denied probate of the will after ,'noting certain details which were a little bit difficult to reconcile
with the ordinary course of things and of life." First was the fact that the spouses Don Jesus and Doñ;a Tinay together with their
four children Francisco, Pablo, Amparo and Fernando had executed the Extrajudicial Partition of November 25, 1949 (Exh. A)
which divided the conjugal properties of the spouses between the spouses themselves and the children under the terms and
conditions and dispositions herein before stated and to implement its provisions, Don Jesus and Doñ;a Tinay subsequently
executed separately their respective holographic wigs both dated January 5, 1955 and codicils dated August 14, 1956 with the
same terms and conditions as reproduced herein earlier. Both holographic wills and codicils having been probated thereafter
and upon the death of Doñ;a Tinay, Don Jesus was appointed executor of the will and in due time the partition of the properties
or estate of Doñ;a Tinay was approved by the probate court on July 6, 1960.
The respondent court ruled that the Extrajudicial Partition of November 25, 1949 was an enforceable contract which was
binding on Don Jesus Alsua as the surviving spouse, barring him from violating said partition agreement, barring him from
revoking his holographic will of January 5, 1955 and his codicil of August 14, 1956, and further barring him from executing his
new will and testament of November 14, 1959, now the subject of the probate proceedings elevated to this Court.
We do not agree with this ruling of the Court of Appeals. We hold that the Extrajudicial Partition of November 25, 1949 is null
and void under Article 1056 in relation to Article 1271 of the old Civil Code which are applicable hereto. These Articles provide
as follows: têñ.£îhqwâ£
Art. 1056. If the testator should make a partition of his property by an act inter vivos, or by will, such partition shall stand in so
far as it does not prejudice the legitime of the forced heirs. ...
Art. 1271. All things, even future ones, which are not excluded from the commerce of man, may be the subject-matter of
contracts.

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Nevertheless, no contract may be entered into with respect to future inheritances, except those the object of which is to make
a division inter vivos of an estate, in accordance with Article 1056.
All services not contrary to law or to good morals may also be the subject- matter of contract.
Article 1056 specifically uses the word "testator" from which the clear intent of the law may be deduced that the privilege of
partitioning one's estate by acts inter vivos is restricted only to one who has made a prior will or testament. In other words,
Article 1056 being an exception cannot be given a wider scope as to include in the exception any person whether he has made a
will or not.
Respondent court citing the same Article concluded that under both the old and new Civil Code, a person who executes a will is
permitted at the same time or a little thereafter or even before as long as he mentions this fact in the will, to partition his
properties pursuant to the provisions of Article 1056 of the old Civil Code. The court further added that jurisprudence is to the
effect that the partition presupposes the execution of the will that it ratifies or effectuates, citing the case of Legasto vs.
Verzosa, 54 Phil. 776. Finally, respondent court held the opinion that the extrajudicial partition of November 14, 1949 was
ratified in the holographic will executed by Don Jesus on Jan. 5, 1955 and in the codicil of August 14, 1956.
Again, We do not agree with this ruling of the respondent court. In Legasto vs. Verzosa, supra, the Supreme Court categorically
declared the necessity of a prior will before the testator can partition his properties among his heirs, and We quote the
pertinent portions of the decision: têñ.£îhqwâ£
The first question to decide in the instant appeal is whether the partition made by Sabina Almadin of her property among her
nieces, the defendants and appellants herein, was valid and enforceable.
Article 1056 of the Civil Code provides:
Art. 1056. If the testator should make a partition of his property by an act inter vivos, or by will, such partition shall stand in so
far as it does not prejudice the legitime of the forced heirs.
The Supreme Court of Spain, in a decision rendered on June 13, 1903, laid down the following doctrine:
Considering that the language of article 1056 cannot be interpreted to mean that a person may, by acts inter vivos, partition his
property referred to in the section wherein said article is found, without the authority of a testament containing an expression
of his last will, or the authority of law, for, otherwise, a partition thus made would be tantamount to making a will in a manner
not provided for, authorized, nor included in the chapter referring to testaments, and especially, to the forms thereof, which is
entirely different from the legal consequences of a free disposition made by parents during their lifetime, whereby they give to
their children the whole or a part of their property;
Considering that, inasmuch as the second paragraph of article 1271 makes reference to the aforesaid article, in providing that
no contracts may be entered into with respect to future inheritances except those the object of which is to make a division
inter vivos of the estate in accordance with article 1056, it is evident that said difference likewise leads to the conclusion that a
partition thus made should be on the basis of a testamentary or legal succession and should be made in conformity with the
fundamental rules thereof and the order of the heirs entitled to the estate, because neither of the two provisions could be
given a wider meaning or scope than that they simply provide for the division of the estate during the lifetime of the owner,
which, otherwise, would have to be done upon the death of the testator in order to carry into effect the partition of the estate
among the persons interested.
Manresa comments on the same article as follows:
A distinction must be made between the disposition of property and its division; and the provision of article 1056 authorizing
the testator to dispose of his property by acts inter vivos or by last will, must be understood in accordance with this distinction.
The Idea is to divide the estate among the heirs designated by the testator. This designation constitutes the disposition of the
properties to take effect after his death, and said act must necessarily appear in the testament because it is the expression of
the testator's last will and must be surrounded by appropriate formalities. Then comes the second part, to wit, the division in
conformity with that disposition, and the testator may make this division in the same will or in another will, or by an act inter
vivos. With these words, the law, in article 1056 as well as in article 1057, which we shall hereafter examine, makes allusion to
the forms or manner of making the partition and not to the effects thereof, which means that, for purposes of partition the
formal solemnities which must accompany every testament or last will are not necessary. Neither is it necessary to observe the
special for. realities required in case of donations, because it is not a matter of disposing gratuitously of properties, but of
dividing those which already have been legally disposed of.
It is thus seen that both the Spanish Supreme Court and the learned and authoritative commentator, Manresa, are of opinion
that a testator may, by an act inter vivos, partition his property, but he must first make a will with all the formalities provided
for by law. And it could not be otherwise, for without a will there can be no testator; when the law, therefore, speaks of the

112
partition inter vivos made by a testator of his property, it necessarily refers to that property which he has devised to his heirs. A
person who disposes of his property gratis inter vivos is not called a testator, but a donor. In employing the word "testator," the
law evidently desired to distinguish between one who freely donates his property in life and one who disposes of it by will to
take effect after his death.
We are not in conformity with the holding of the respondent court that the extrajudicial partition of November 25, 1949 which
under the old Civil Code was expressly prohibited as against public policy had been validly ratified by the holographic will of Don
Jesus executed on January 5, 1955 and his codicil of August 14, 1956. Such a holding of the appellate court that a person who
executes a will is permitted to partition his properties pursuant to the provisions of Article 1056 of the old Civil Code even
before executing his will as long as he mentions this fact in the will, is not warranted under the ruling of Legasto vs. Verzosa,
supra and the commentary of Manresa as quoted above. We rule, therefore, that the respondent court erred in denying
probate to the will of Don Jesus dated November 14, 1959; it erred in holding that Don Jesus being a party to the extrajudicial
partition of 1949 was contractually bound by the provisions thereof and hence could not revoke his participation therein by the
simple expedience of making a new will with contrary provisions or dispositions. It is an error because the so-called extrajudicial
partition of 1949 is void and inoperative as a partition; neither is it a valid or enforceable contract because it involved future
inheritance; it may only be given effect as a donation inter vivos of specific properties to the heirs made by the parents.
Considering that the document, the extrajudicial partition of November 25, 1949, contained specific designation of properties
allotted to each child, We rule that there was substantial compliance with the rules on donations inter vivos under the old Civil
Code (Article 633). On the other hand, there could have been no valid donation to the children of the other half reserved as the
free portion of Don Jesus and Doñ;a Tinay which, as stated in the deed, was to be divided equally among the children for the
simple reason that the property or properties were not specifically described in the public instrument, an essential requirement
under Article 633 which provides as follows: têñ.£îhqwâ£
Art. 633. In order that a donation or real property be valid it must be made by public instrument in which the property donated
must be specifically described and in the amount of the encumbrances to be assumed by the donee expressed.
The acceptance must be made in the deed of gift or in a separate public writing; but it shall produce no effect if not made
during the lifetime of the donor.
If the acceptance is made by separate public instrument, authentic notice thereof shall be given the donor, and this proceeding
shall be noted in both instruments.
This other half, therefore, remained as the disposable free portion of the spouses which may be disposed of in such manner
that either of the spouses would like in regards to his or her share in such portion, unencumbered by the provision enjoining
the last surviving spouse to give equally to the children what belongs or-would pertain to him or her. The end result, therefore,
is that Don Jesus and Doñ;a Tinay, in the Deed of 1949, made to their children valid donations of only one-half of their
combined properties which must be charged against their legitime and cannot anymore be revoked unless inofficious; the other
half remained entirely at the free disposal of the spouses with regards to their respective shares.
Upon the death of Doñ;a Tinay on October 2, 1959, her share in the free portion was distributed in accordance with her
holographic will dated January 25, 1955 and her codicil dated August 14, 1956. It must be stressed here that the distribution of
her properties was subject to her holographic win and codicil, independently of the holographic will and codicil of Don Jesus
executed by him on the same date. This is fundamental because otherwise, to consider both wills and codicils jointly would be
to circumvent the prohibition of the Civil Code on joint wills (Art. 818) and secondly because upon the death of Doñ;a Tinay,
only her estate was being settled, and not that of Don Jesus.
We have carefully examined the provisions of the holographic will and codicil of Doñ;a Tinay and We find no indication
whatsoever that Doñ;a Tinay expressly or impliedly instituted both the husband and her children as heirs to her free portion of
her share in the conjugal assets. In her holographic will, mention of her children as heirs was made in the fourth clause but it
only provided that, to wit: têñ.£îhqwâ£
Cuatro. Que si yo adquieriese nuevase propiedades despues de otorgado este mi testamento seran las mismas repartados
entre mi esposo o hijos arriba mencionada en el parrafo tercero su la misma proporcion o sea: la mitad (1/2) para is esposa; y la
otra mitad (1/2) para mis hijos en partes iguales.
For purposes of clarity and convenience, this fourth clause provided that "Should I acquire new properties after the execution
of this testament, the same shall be partitioned among my spouse and above named children or the children mentioned in
above par. 3 in the same proportion, that is, one- half (1/2) to my spouse; and the other half to my children in equal parts."
From the above-quoted provision, the children would only inherit together with Don Jesus whatever new properties Doñ;a
Tinay would acquire after the execution of her will.

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Likewise, the codicil of Doñ;a Tinay instituted her husband as sole heir to her share in the free portion of the conjugal assets,
and We quote that part of the codicil: têñ.£îhqwâ£
Dejo a mi esposo Jesus Alsua como su legitima y como herencia que se sacara de ni cuenta de libre disposicion todos aquellos
bienes de los que no he dispuesto aun en favor de mis hijos en la escritura de reparticion precitada y que excedieran de la
mitad de gananciales que le corresponds tal como arriba declare, incluyendo todos aquenos bienes que se adquiriesen por
nosotros despues de otorgado por mi este testamento.
Para el caso de que Dios dispusiera que yo sobreviviera a mi esposo declaro que es mi voluntad que todas las propiedades de
todo genero que me pertenecen y me pudieran pertenecer, no dispuestas aun en la reparticion, se dividan por igual entre mis
herederos mencionados despues de mi muerte.
Again for purposes of clarity and convenience, the above portion states: têñ.£îhqwâ£
I leave to my spouse Don Jesus Alsua as his legitime and as his inheritance the part of the free portion of my property which
have not been allocated in favor of my children in the Document of Partition aforecited and that which should exceed 1/2 of
the conjugal property of gains that pertains to him as above stated, including all those properties which we shall acquire after
the execution of this document.
In case it should be God's will that I survive my spouse, I hereby declare that it is my will that any and all kinds of property that
pertains to me or would pertain to me, which have not been disposed of pursuant to the partition, should be divided equally
among my above-mentioned heirs after my death.
The children, therefore, would only receive equal shares in the remaining estate of Doñ;a Tinay in the event that she should be
the surviving spouse. To stress the point, Doñ;a Tinay did not oblige her husband to give equally to the children, upon his death,
all such properties she was bequeathing him.
Considering now the efficacy of Don Jesus' last will and testament executed on November 14, 1959 in view of Our holding that
Doñ;a Tinay's wig and codicil did not stipulate that Don Jesus will bestow the properties equally to the children, it follows that
all the properties of Doñ;a Tinay bequeathed to Don Jesus under her holographic win and codicil became part of Don Jesus'
estate unburdened by any condition obligation or proviso.
Respondents insist that Don Jesus was bound by the extrajudicial partition of November 25, 1949 and had in fact conformed to
said Partition by making a holographic will and codicil with exactly the same provisions as those of Doñ;a Tinay, which
respondent court sustained. We rule, however, that Don Jesus was not forever bound thereby for his previous holographic will
and codicil as such, would remain revokable at his discretion. Art. 828 of the new Civil Code is clear: "A win may be revoked by
the testator at any time before his death. Any waiver or restriction of this right is void." There can be no restriction that may be
made on his absolute freedom to revoke his holographic will and codicil previously made. This would still hold true even if such
previous will had as in the case at bar already been probated (Palacios v. Palacios, 106 Phil. 739). For in the first place, probate
only authenticates the will and does not pass upon the efficacy of the dispositions therein. And secondly, the rights to the
succession are transmitted only from the moment of the death of the decedent (Article 777, New Civil Code). In fine, Don Jesus
retained the liberty of disposing of his property before his death to whomsoever he chose, provided the legitime of the forced
heirs are not prejudiced, which is not herein claimed for it is undisputed that only the free portion of the whole Alsua estate is
being contested.
After clearly establishing that only Don Jesus was named as sole heir instituted to the remaining estate of Doñ;a Tinay in her
holographic will and codicil resulting in all such properties becoming the properties of Don Jesus alone, and after clearly
pointing out that Don Jesus can, in law, revoke his previous holographic will and codicil, by making another win expressly
cancelling and revoking the former, the next issue for the Court's resolution is the validity of the provisions of the contested
will. Though the law and jurisprudence are clear that only questions about the extrinsic validity of the will may be entertained
by the probate court, the Court had, on more than one occasion, passed upon the intrinsic validity of a will even before it had
been authenticated. Thus We declared in Nuguid v. Nuguid, 17 SCRA 499: têñ.£îhqwâ£
The parties shunted aside the question of whether or not the will should be allowed to probate. For them, the meat of the case
is the intrinsic validity of the wilt Normally this comes only after the court has declared that the will has been duly
authenticated. ...
... If the case were to be remanded for probate of the wilt nothing will be gained. On the contrary, this litigation win be
protracted and for ought that appears in the record, in the event of probate or if the court rejects the will probability exists that
the case win come up once again before us on the issue of the intrinsic validity or nullity of the wilt Result: waste of time, effort,
expense, plus added anxiety. These are the practical considerations that induce us to a behalf that we might as well meet head-
on the time of the validity of the provisions of the will in question. ...

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The last Will and Testament of Don Jesus executed on November 14, 1959 contained an express revocation of his holographic
wig of January 5, 1955 and the codicil of August 14, 1956; a statement requiring that all of his properties donated to his children
in the Deed of 1949 be collated and taken into account in the partition of his estate; the institution of all his children as
devisees and legatees to certain specific properties; a statement bequeathing the rest of his properties and all that may be
acquired in the future, before his death, to Pablo and Francesca; and a statement naming Francesca as executrix without bond.
Considering these testamentary provisions, a close scrutiny of the properties distributed to the children under the Deed of 1949
and those distributed under the contested will of Don Jesus does not show that the former had in fact been included in the
latter. This being so, it must be presumed that the intention of Don Jesus in his last win was not to revoke the donations already
made in the Deed of 1949 but only to redistribute his remaining estate, or that portion of the conjugal assets totally left to his
free disposal and that which he received as his inheritance from Doñ;a Tinay. The legitimes of the forced heirs were left
unimpaired, as in fact, not one of said forced heirs claimed or intimated otherwise. The properties that were disposed of in the
contested will belonged wholly to Don Jesus Alsua's free portion and may be diamond of by him to whomsoever he may
choose.
If he now favored Francesca more, as claimed by private respondents, or Pablo as in fact he was, We cannot and may not sit in
judgment upon the motives and sentiments of Don Jesus in doing so. We have clearly laid down this rule in Bustamante v.
Arevalo, 73 Phil. 635, to wit: têñ.£îhqwâ£
... nevertheless it would be venturesome for the court to advance its own Idea of a just distribution of the property in the face
of a different mode of disposition so clearly expressed by the testatrix in the latter will. ...
It would be a dangerous precedent to strain the interpretation of a will in order to effect what the court believes to be an
equitable division of the estate of a deceased person. The only functions of the courts in these cases is to carry out the
intention of the deceased as manifested in the wig. Once that intention has been determined through a careful reading of the
will or wills, and provided the law on legitimes has not been violated, it is beyond the place of judicial cognizance to inquire into
the fairness or unfairness of any devise or bequeast. The court should not sit in judgment upon the motives and sentiments of
the testatrix, first, because as already stated, nothing in the law restrained her from disposing of her property in any manner
she desired, and secondly, because there are no adequate means of ascertaining the inward process of her conscience. She was
the sole judge of her own attitude toward those who expected her bounty. ...
Respondent court, in trying to rationalize the will of Don Jesus which allegedly benefited and favored the petitioner to the
prejudice of the other heirs who would have been entitled to an equal share under the extrajudicial partition of 1949, faced
two alternatives-one, to consider Don Jesus as a man of culture and honor and would not snow himself to violate the previous
agreement, and the other as one whose mental faculties or his possession of the same had been diminished considering that
when the will was executed, he was already 84 years of age and in view of his weakness and advanced age, the actual
administration of his properties had been left to his assistant Madarieta who, for his part received instructions from Francisco
and her husband, Joseph Betts. According to the court, the better explanation is the latter, which is not legally tenable. Under
Article 799 of the New Civil Code which provides as follows: têñ.£îhqwâ£
Art. 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his
mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause.
It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of,
the proper objects of his bounty, and the character of the testamentary act,
The test of testamentary capacity is at the time of the making of the win. Mere weakness of mind or partial imbecility from
disease of body or from age-does not render a person incapable of making a will. têñ.£îhqwâ£
Between the highest degree of soundness of mind and memory which unquestionably carries with it full testamentary capacity,
and that degrees of mental aberration generally known as insanity or Idiocy, there are numberless degrees of mental capacity
or incapacity and while on one hand it has been held that mere weakness of mind, or partial imbecility from disease of body, or
from age, will not render a person incapable of making a will; a weak or feebleminded person may make a valid will, provided
he has understanding and memory sufficient to enable him to know what he is about to do and how or to whom he is disposing
of his property. To constitute a sound and disposing mind, it is not necessary that the mind be unbroken or unimpaired or
unshattered by disease or otherwise. It has been held that testamentary incapacity does not necessarily require that a person
shall actually be insane or of unsound mind. (Bugnao vs. Ubag, 14 Phil. 163).
The Civil Code itself provides under Article 798 that in order to make a will, it is essential that the testator be of sound mind at
the time of its execution, and under Article 800, the law presumes that every person is of sound mind in the absence of proof to
the contrary. In the case at bar, the acceptance by the respondent court of the findings of fact of the trial court on the due
execution of the last win and testament of Don Jesus has foreclosed any and all claim to the contrary that the will was not
executed in accordance with the requirements of the law. But more than that, gleaned from the quoted portions of the

115
appealed decision, the described behavior of Don Jesus is not that of a mentally incapacitated person nor one suffering from
"senile dementia" as claimed by private respondents. From these accepted facts, We find that: (a) it was Don Jesus himself who
gave detailed instructions to his lawyer as to how he wanted to divide his properties among his children by means of a list of his
properties should pertain; (b) the semi-final draft of the contested will prepared by his lawyer w-as even corrected by Don
Jesus; (c) on the day of the signing of the will at his house in Ligao, "Don Jesus was in bright and lively spirits ..., leading in the
conversation which ran from problems of farming and the merits of French-made wines"; (d) the signing of the will by Don
Jesus and his attesting witnesses was made after a statement from Don Jesus of the purpose of their meeting or gathering, to
wit: têñ.£îhqwâ£
Precisamente es por lo que he Ilamado a ustedes que eaten presentes para ser testigos de mi ultima voluntad y testamento que
ha sido preparado por el abogado Sr. Gregorio Imperial segun mis instrucciones cuyo documents tengo aqui con migo y
encuentro que, despues de lo he leido, esta satisfactoriamente hecho segun mis ingtrucciones, Como saben ustedes tengo
cuatro (4) hijos todos ellos.
Clearly then, Don Jesus knew exactly what his actions were and the fun implications thereof.
In rejecting probate of the wilt respondent court further pointed out other details which, in the words of the decision "are a
little bit difficult to reconcile with the ordinary course of things and of fife" such as the fact that Don Jesus had sought the
probate of his will of January 5, 1955 and his codicil of August 14, 1956 during his lifetime but insofar as the will of November
14, 1959 is concerned, he had no intention of seeking the probate thereof during his lifetime, the alleged redundant and
unnecessary proceedings undertaken by Don Jesus in the properties under question to petitioner Franciso Alsua-Betts when the
same properties had already been bequeathed to her in the will of November 14, 1959 and that "nothing, absolutely nothing,
could be made the basis for finding that Don Jesus Alsua had regarded his other children with less favor, and that he was more
sympathetic to Francisca so as to or forget the former depriving them of benefits already given to them and rewarding the
latter with disproportionate advantages or benefits, to such an extreme as to violate his previous disposition consecrated in the
previous extrajudicial partition, Exh. 8."
We agree with the petitioner that these details which respondent court found difficult to reconcile with the ordinary course of
things and of life are mere conjectures, surmises or speculations which, however, do not warrant or justify disallowance of the
probate of the win of Don Jesus. The fact that Don Jesus did not cause his will to be probated during his lifetime while his
previous holographic win and codicil were duly probated when he was still alive is a mere speculation which depends entirely
on the discretion of Don Jesus as the testator. The law does not require that a will be probated during the lifetime of the
testator and for not doing so there cannot arise any favorable or unfavorable consequence therefrom. The parties cannot
correctly guess or surmise the motives of the testator and neither can the courts. Such surmise, speculation or conjecture is no
valid and legal ground to reject allowance or disallowance of the wig. The same thing can be said as to whatever reason Don
Jesus had for selling the properties to his daughter Francisca when he had already assigned the same properties to her in his
will. While We can speculate that Don Jesus desired to have possession of the properties transferred to Francisca after the sale
instead of waiting for his death may be a reasonable explanation or speculation for the act of the testator and yet there is no
certainty that such was actually the reason. This is as good a conjecture as the respondents may offer or as difficult to accept
which respondent court believes. A conjecture is always a conjecture; it can never be admitted as evidence.
Now, the annulment case. The only issue raised anent the civil case for annulment of the two Deeds of Sale executed by and
between Don Jesus and petitioner Francisco is their validity or nullity. Private respondents mainly contend that the sales were
fictitious or simulated, there having been no actual consideration paid. They further insist that the issue raised is a question of
fact and, therefore, not reviewable in a certiorari proceeding before the Supreme Court. On the other hand, petitioners herein
maintain that it was error for the respondent court to set aside on appeal the factual findings of the trial court that the two
sales were valid.
It is true that the jurisprudence of this Court in cases brought to Us from the Court of Appeals is limited to reviewing and
revising the errors of law imputed to it, its findings of fact being conclusive; and this same principle applies even if the Court of
Appeals was in disagreement with the lower court as to the weight of evidence with a consequent reversal of its findings of
fact. But what should not be ignored by lawyers and litigants alike is the more basic principle that the "findings of fact"
described as "final" or "conclusive" are those borne out by the record or those which are based upon substantial evidence. The
general rule laid down by the Supreme Court does not declare the absolute correctness of all the findings of fact made by the
Court of Appeals. These are exceptions to the general rule, where We have reviewed and revised the findings of fact of the
Court of Appeals. Among the exceptions to the rule that findings of fact by the Court of Appeals cannot be reviewed on appeals
by certiorari are:
1. When the conclusion is a finding grounded entirely on speculation, surmises or conjectures (Joaquin vs. Navarro, 93 Phil.
257);
2. When the inference made is manifestly mistaken, absurd or impossible (Luna vs. Linatok, 74 Phil. 15);

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3. Where there is a grave abuse of discretion (Buyco vs. People, 51 O.G. 2927);
4. When the judgment is based on a misapprehension of facts (Cruz vs. Sosing, L-4875, Nov. 27, 1953);
5. When the findings of fact are conflicting (Casica vs. Villaseca, L-9590, April 30, 1957); and
6. When the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the
admissions of both appellant and appellee (Evangelists vs. Alto Surety & Ins. Co., L-11139, April 23, 1958; Ramos vs. Pepsi Cola,
L-22533, Feb. 9, 1967, 19 SCRA 289).
In the case at bar, We find and so declare that the respondent court's conclusion as to the nullity of the contested sales was not
supported by the evidence on record and adduced during the trial.
Evident from the records are the following documentary evidence: (1) Exhibit U, a deed of sale over agricultural lands executed
on August 26, 1961 by Don Jesus in favor of Francisca for the consideration of Seventy Thousand Pesos (P70,000.00), which
document bears the signature of Don Jesus, not assailed as a forgery, and the signature of Pablo Alsua as an instrumental
witness, again not assailed as a forgery nor alleged as done thru fraud, force or threat. (2) Exhibit "W", a deed of sale over
urban lots executed on November 16, 1962 for the consideration of Eighty Thousand Pesos (P80,000.00), which document also
bears the signature of Don Jesus, also admittedly not a forgery. (3) Exhibit "F", a document dated August 26, 1961 and signed
by Don Jesus and Pablo Alsua as witness, acknowledging receipt of a Bank of Philippine Island Check No. 0252 in the amount of
Seventy Thousand Pesos (P70,000.00) for the sale of 33 parcels of agricultural land to Francisco under the same date; again,
Pablo did not deny the genuineness of his signature. (4) Exhibit "X", a Bank of the Philippine Islands Check No. D-6979 dated
November 26, 1962, in the amount of P32,644.71, drawn and signed by Francesca, payable to Don Jesus. (5) Exhibit "X-1", a
second Bank of Philippine Islands Check (No. D-6980) also dated November 26, 1962 in the amount of ?47,355.29, drawn by
Francisco and payable to Don Jesus. (6) Exhibit "X-3 " and "X-5 ", endorsements on the back of the last two checks by Don Jesus,
again, his signatures thereon were not assailed. (7) Exhibit "A" (in the annulment case), a Bureau of Internal Revenue Receipt
(No. 2347260) dated November 29, 1962 with a notation acknowledging the receipt of BPI Check No. D-6980 in the amount of
P47,355.29 from Don Jesus Alsua in payment of Balance of Transfer of Tax Ass. No. EA-35415-19 plus interest. We are
convinced and satisfied from this array of documentary evidence that in fact, Don Jesus sold the subject properties to his
daughter, Francisca for the total consideration of P150,000.00.
The claim of the private respondents that the sales were fictitious and void for being without cause or consideration is as weak
and flimsy as the ground upon which the respondent court upheld said claim on the basis that there was no need for funds in
Don Jesus' old age aside from the speculation that there was nothing in the evidence that showed what motivated Don Jesus to
change his mind as to favor Francesca and discriminate against the other children. The two contracts of same executed by Don
Jesus in favor of Francesca are evidenced by Exhibits "U" and "W", the genuineness of which were not at all assailed at any time
during this long drawn-out litigation of 15 years standing. That the consideration stated in the contracts were paid is also
sufficiently proved as the receipts thereof by Don Jesus were even signed by one of the private respondents, Pablo Alsua, as a
witness. The latter cannot now deny the payment of the consideration And even of he now allege that in fact no transfer of
money was involved, We find his allegation belied by Exhibits "X-3 " and "X-5 ", which show that the checks of Francisco made
payable to Don Jesus. were in fact given to Don Jesus as he endorsed them on the back thereof, and most specifically Exhibit
"A" in the annulment case, which proved that Don Jesus actually used Exhibit "XI " to complete payment on the estate and
inheritance tax on the estate of his wife to the Bureau of Internal Revenue.
Private respondents further insist that the sales were fraudulent because of the inadequacy of the given price. Inadequacy of
consideration does not vitiate a contract unless it is proven which in the case at bar was not, that there was fraud, mistake or
undue influence. (Article 1355, New Civil Code). We do not find the stipulated price as so inadequate to shock the court's
conscience, considering that the price paid was much higher than the assessed value of the subject properties and considering
that the sales were effected by a father to her daughter in which case filial love must be taken into account.
WHEREFORE, IN VIEW OF THE FOREGOING, the decision appealed from is hereby set aside. The decision of the Court of First
Instance Of Albay in Special Proceedings No. 699 and Civil Case No. 3068 is hereby reinstated, with costs against respondents.
SO ORDERED.

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G.R. No. L-37453 May 25, 1979
RIZALINA GABRIEL GONZALES, petitioner,
vs.
HONORABLE COURT OF APPEALS and LUTGARDA SANTIAGO, respondents.
Francisco D. Rilloraza, Jr. for petitioners.
Angel A. Sison for private respondent.

GUERRERO, J.:
This is a petition for review of the decision of the Court of Appeals, First Division,1 promulgated on May 4, 1973 in CA G.R. No.
36523-R which reversed the decision of the Court of First Instance of Rizal dated December 15, 1964 and allowed the probate
of the last will and testament of the deceased Isabel Gabriel. *
It appears that on June 24, 1961, herein private respondent Lutgarda Santiago filed a petition with the Court of First Instance of
Rizal docketed as Special Proceedings No. 3617, for the probate of a will alleged to have been executed by the deceased Isabel
Gabriel and designating therein petitioner as the principal beneficiary and executrix.
There is no dispute in the records that the late Isabel Andres Gabriel died as a widow and without issue in the municipality of
Navotas, province of Rizal her place of residence, on June 7, 1961 at the age of eighty-five (85), having been born in 1876. It is
likewise not controverted that herein private respondent Lutgarda Santiago and petitioner Rizalina Gabriel Gonzales are nieces
of the deceased, and that private respondent, with her husband and children, lived with the deceased at the latters residence
prior an- d up to the time of her death.
The will submitted for probate, Exhibit "F", which is typewritten and in Tagalog, appears to have been executed in Manila on
the 15th day of April, 1961, or barely two (2) months prior to the death of Isabel Gabriel. It consists of five (5) pages, including
the pages whereon the attestation clause and the acknowledgment of the notary public were written. The signatures of the
deceased Isabel Gabriel appear at the end of the will on page four and at the left margin of all the pages. The attestation clause,
which is found on page four, reads as follows:
PATUNAY NG MGA SAKSI
Kaming mga nakalagdang mga saksi o testigo na ang aming mga tinitirahan ay nakasulat sa gawing kanan at kahilira ng aming
mga pangalan sa ibaba nito, ay pagpapatutuo na ipinakilala ipinaalam at ipinahayag sa amin ni Isabel Gabriel na ang kasulatang
ito na binubuo ng Limang Dahon (Five Pages) pati na ang dahong ito, na siya niyang TESTAMENTO AT HULING HABILIN, ngayong
ika 15 ng Abril, 1961, ay nilagdaan ng nasabing testadora na si Isabel Gabriel ang nasabing testamento sa ibaba o ilalim ng
kasulatan na nasa ika apat na dahon (page four) at nasa itaas ng patunay naming ito, at sa kaliwang panig ng lahat at bawat
dahon (and on the left hand margin of each and every page), sa harap ng lahat at bawat isa sa amin, at kami namang mga saksi
ay lumagda sa harap ng nasabing testadora, at sa harap ng lahat at bawat isa sa amin, sa ilalim ng patunay ng mga saksi at sa
kaliwang panig ng lahat at bawa't dahon ng testamentong ito.
At the bottom thereof, under the heading "Pangalan", are written the signatures of Matilde D. Orobia, Celso D. Gimpaya and
Maria R. Gimpaya, and opposite the same, under the heading "Tirahan", are their respective places of residence, 961 Highway
54, Philamlife, for Miss Orobia, and 12 Dagala St., Navotas, Rizal, for the two Gimpayas. Their signatures also appear on the left
margin of all the other pages. The WW is paged by typewritten words as follows: "Unang Dahon" and underneath "(Page One)",
"Ikalawang Dahon" and underneath "(Page Two)", etc., appearing at the top of each page.
The will itself provides that the testatrix desired to be buried in the Catholic Cemetery of Navotas, Rizal in accordance with the
rites of the Roman Catholic Church, all expenses to be paid from her estate; that all her obligations, if any, be paid; that legacies
in specified amounts be given to her sister, Praxides Gabriel Vda. de Santiago, her brother Santiago Gabriel, and her nephews
and nieces, Benjamin, Salud, Rizalina (herein petitioner), Victoria, Ester, Andres, all surnamed Gabriel, and Evangeline,
Rudyardo Rosa, Andrea, Marcial, Numancia, Verena an surnamed Santiago. To herein private respondent Lutgarda Santiago,
who was described in the will by the testatrix as "aking mahal na pamangkin na aking pinalaki, inalagaan at minahal na katulad
ng isang tunay na anak" and named as universal heir and executor, were bequeathed all properties and estate, real or personal
already acquired, or to be acquired, in her testatrix name, after satisfying the expenses, debts and legacies as aforementioned.
The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner, assailing the document purporting to be the will of
the deceased on the following grounds:
1. that the same is not genuine; and in the alternative
2. that the same was not executed and attested as required by law;

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3. that, at the time of the alleged execution of the purported wilt the decedent lacked testamentary capacity due to old age and
sickness; and in the second alternative
4. That the purported WW was procured through undue and improper pressure and influence on the part of the principal
beneficiary, and/or of some other person for her benefit.
Lutgarda Santiago filed her Answer to the Opposition on February 1, 1962. After trial, the court a quo rendered judgment, the
summary and dispositive portions of which read:
Passing in summary upon the grounds advanced by the oppositor, this Court finds:
1. That there is no iota of evidence to support the contentio that the purported will of the deceased was procured through
undue and improper pressure and influence on the part of the petitioner, or of some other person for her benefit;
2. That there is insufficient evidence to sustain the contention that at the time of the alleged execution of the purported will,
the deceased lacked testamentary capacity due to old age and sickness;
3. That sufficient and abundant evidence warrants conclusively the fact that the purported will of the deceased was not
executed and attested as required by law;
4. That the evidence is likewise conclusive that the document presented for probate, Exhibit 'F' is not the purported win
allegedly dictated by the deceased, executed and signed by her, and attested by her three attesting witnesses on April 15, 1961.
WHEREFORE, Exhibit "F", the document presented for probate as the last wig and testament of the deceased Isabel Gabriel is
here by DISALLOWED.
From this judgment of disallowance, Lutgarda Santiago appealed to respondent Court, hence, the only issue decided on appeal
was whether or not the will in question was executed and attested as required by law. The Court of Appeals, upon
consideration of the evidence adduced by both parties, rendered the decision now under review, holding that the will in
question was signed and executed by the deceased Isabel Gabriel on April 15, 1961 in the presence of the three attesting
witnesses, Matilde Orobia, Celso Gimpaya and Maria Gimpaya, signing and witnessing the document in the presence of the
deceased and of each other as required by law, hence allow ed probate.
Oppositor Rizalina Gabriel Gonzales moved for reconsideration 3 of the aforesaid decision and such motion was opposed 4 by
petitioner-appellant Lutgarda Santiago. Thereafter. parties submitted their respective Memoranda, 5 and on August 28, 1973,
respondent Court, Former Special First Division, by Resolution 6 denied the motion for reconsideration stating that:
The oppositor-appellee contends that the preponderance of evidence shows that the supposed last wig and testament of Isabel
Gabriel was not executed in accordance with law because the same was signed on several occasions, that the testatrix did not
sign the will in the presence of all the instrumental witnesses did not sign the will in the presence of each other.
The resolution of the factual issue raised in the motion for reconsideration hinges on the appreciation of the evidence. We have
carefully re-examined the oral and documentary evidence of record, There is no reason to alter the findings of fact in the
decision of this Court sought to be set aside. 7
In her petition before this Court, oppositor Rizalina Gabriel Gonzales contends that respondent Court abused its discretion
and/or acted without or in excess of its jurisdiction in reverssing the findings of fact and conclusions of the trial court. The
Court, after deliberating on the petition but without giving due course resolved, in the Resolution dated Oct. 11, 1973 to
require the respondents to comment thereon, which comment was filed on Nov. 14, 1973. Upon consideration of the
allegations, the issues raised and the arguments adduced in the petition, as well as the Comment 8 of private respondent
thereon, We denied the petition by Resolution on November 26, 1973, 9 the question raised being factual and for insufficient
showing that the findings of fact by respondent Court were unsupported by substantial evidence.
Subsequently, or on December 17, 1973, petitioner Rim Gabriel Goes fried a Motion for Reconsideration 10 which private
respondent answered by way of her Comment or Opposition 11 filed on January 15, 1974. A Reply and Rejoinder to Reply
followed. Finally, on March 27, 1974, We resolved to give due course to the petition.
The petitioner in her brief makes the following assignment of errors:
I. The respondent Court of Appeals erred in holding that the document, Exhibit "F" was executed and attested as required by
law when there was absolutely no proof that the three instrumental witnesses were credible witness
II. The Court of Appeals erred in reversing the finding of the lower court that the preparation and execution of the win Exhibit
"F", was unexpected and coincidental.
III. The Court of Appeals erred in finding that Atty, Paraiso was not previously furnished with the names and residence
certificates of the witnesses as to enable him to type such data into the document Exhibit "F".

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IV. The Court of Appeals erred in holding that the fact that the three typewritten lines under the typewritten words "Pangalan"
and "Tinitirahan" were left blank shows beyond cavil that the three attesting witnesses were all present in the same occasion.
V. The Court of Appeals erred in reversing the trial court's finding that it was incredible that Isabel Gabriel could have dictated
the wilt Exhibit "F , without any note or document, to Atty. Paraiso.
VI. The Court of Appeals erred in reversing the finding of the trial court that Matilde Orobia was not physically present when
the Will Exhibit "F" was allegedly signed on April 15, 1961 by the deceased Isabel Gabriel and the other witnesses Celso
Gimpaya and Maria Gimpaya.
VII. The Court of Appeals erred in holding that the trial court gave undue importance to the picture takings as proof that the win
was improperly executed.
VIII. The Court of Appeals erred in holding that the grave contradictions, evasions, and misrepresentations of witnesses
(subscribing and notary) presented by the petitioner had been explained away, and that the trial court erred in rejecting said
testimonies.
IX. The Court of Appeals acted in excess of its appellate jurisdiction or has so far departed from the accepted and usual course
of judicial proceedings, as to call for an exercise of the power of supervision.
X. The Court of Appeals erred in reversing the decision of the trial court and admitting to probate Exhibit "F", the alleged last
will and testament of the deceased Isabel Gabriel.
It will be noted from the above assignments of errors that the same are substantially factual in character and content. Hence, at
the very outset, We must again state the oft-repeated and well-established rule that in this jurisdiction, the factual findings of
the Court of Appeals are not reviewable, the same being binding and conclusive on this Court. This rule has been stated and
reiterated in a long line of cases enumerated in Chan vs. CA (L-27488, June 30, 1970, 33 SCRA 737, 743) 12 and Tapas vs. CA (L-
22202, February 27; 1976, 69 SCRA 393), 13 and in the more recent cases of Baptisia vs. Carillo and CA (L32192, July 30, 1976,
72 SCRA 214, 217) and Vda. de Catindig vs. Heirs of Catalina Roque (L-25777, November 26, 1976, 74 SCRA 83, 88). In the case
of Chan vs. CA, this Court said:
... from Guico v. Mayuga, a 1936 decision, the opinion being penned by the then Justice Recto, it has been well-settled that the
jurisdiction of tills Court in cases brought to us from the Court of Appeals is limited to reviewing and revising the errors of law
imputed to it, its findings of fact being conclusive. More specifically, in a decision exactly a month later, this Court, speaking
through the then Justice Laurel, it was held that the same principle is applicable, even if the Court of Appeals was in
disagreement with the lower court as to the weight of the evidence with a consequent reversal of its findings of fact ...
Stated otherwise, findings of facts by the Court of Appeals, when supported by substantive evidence are not reviewable on
appeal by certiorari. Said findings of the appellate court are final and cannot be disturbed by Us particularly because its
premises are borne out by the record or based upon substantial evidence and what is more, when such findings are correct.
Assignments of errors involving factual issues cannot be ventilated in a review of the decision of the Court of Appeals because
only legal questions may be raised. The Supreme Court is not at liberty to alter or modify the facts as set forth in the decision of
the Court of Appeals sought to be reversed. Where the findings of the Court of Appeals are contrary to those of the trial court,
a minute scrutiny by the Supreme Court is in order, and resort to duly-proven evidence becomes necessary. The general rule
We have thus stated above is not without some recognized exceptions.
Having laid down the above legal precepts as Our foundation, We now proceed to consider petitioner's assignments of errors.
Petitioner, in her first assignment, contends that the respondent Court of Appeals erred in holding that the document, Exhibit
"F", was executed and attested as required by law when there was absolutely no proof that the three instrumental witnesses
were credible witnesses. She argues that the require. ment in Article 806, Civil Code, that the witnesses must be credible is an
absolute requirement which must be complied with before an alleged last will and testament may be admitted to probate and
that to be a credible witness, there must be evidence on record that the witness has a good standing in his community, or that
he is honest and upright, or reputed to be trustworthy and reliable. According to petitioner, unless the qualifications of the
witness are first established, his testimony may not be favorably considered. Petitioner contends that the term "credible" is not
synonymous with "competent" for a witness may be competent under Article 820 and 821 of the Civil Code and still not be
credible as required by Article 805 of the same Code. It is further urged that the term "credible" as used in the Civil Code should
receive the same settled and well- known meaning it has under the Naturalization Law, the latter being a kindred legislation
with the Civil Code provisions on wigs with respect to the qualifications of witnesses.
We find no merit to petitioner's first assignment of error. Article 820 of the Civil Code provides the qualifications of a witness to
the execution of wills while Article 821 sets forth the disqualification from being a witness to a win. These Articles state:

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Art. 820. Any person of sound mind and of the age of eighteen years or more, and not blind, deaf or dumb, and able to read
and write, may be a witness to the execution of a will mentioned in article 806 of this Code. "Art. 821. The following are
disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines,
(2) Those who have been convicted of falsification of a document, perjury or false testimony.
Under the law, there is no mandatory requirement that the witness testify initially or at any time during the trial as to his good
standing in the community, his reputation for trustworthythiness and reliableness, his honesty and uprightness in order that his
testimony may be believed and accepted by the trial court. It is enough that the qualifications enumerated in Article 820 of the
Civil Code are complied with, such that the soundness of his mind can be shown by or deduced from his answers to the
questions propounded to him, that his age (18 years or more) is shown from his appearance, testimony , or competently proved
otherwise, as well as the fact that he is not blind, deaf or dumb and that he is able to read and write to the satisfaction of the
Court, and that he has none of the disqualifications under Article 821 of the Civil Code. We reject petitioner's contention that it
must first be established in the record the good standing of the witness in the community, his reputation for trustworthiness
and reliableness, his honesty and uprightness, because such attributes are presumed of the witness unless the contrary is
proved otherwise by the opposing party.
We also reject as without merit petitioner's contention that the term "credible" as used in the Civil Code should be given the
same meaning it has under the Naturalization Law where the law is mandatory that the petition for naturalization must be
supported by two character witnesses who must prove their good standing in the community, reputation for trustworthiness
and reliableness, their honesty and uprightness. The two witnesses in a petition for naturalization are character witnesses in
that being citizens of the Philippines, they personally know the petitioner to be a resident of the Philippines for the period of
time required by the Act and a person of good repute and morally irreproachable and that said petitioner has in their opinion
all the qualifications necessary to become a citizen of the Philippines and is not in any way disqualified under the provisions of
the Naturalization Law (Section 7, Commonwealth Act No. 473 as amended).
In probate proceedings, the instrumental witnesses are not character witnesses for they merely attest the execution of a will or
testament and affirm the formalities attendant to said execution. And We agree with the respondent that the rulings laid down
in the cases cited by petitioner concerning character witnesses in naturalization proceedings are not applicable to instrumental
witnesses to wills executed under the Civil Code of the Philippines.
In the case at bar, the finding that each and everyone of the three instrumental witnesses, namely, Matilde Orobia, Celso
Gimpaya and Maria Gimpaya, are competent and credible is satisfactorily supported by the evidence as found by the
respondent Court of Appeals, which findings of fact this Tribunal is bound to accept and rely upon. Moreover, petitioner has not
pointed to any disqualification of any of the said witnesses, much less has it been shown that anyone of them is below 18 years
of age, of unsound mind, deaf or dumb, or cannot read or write.
It is true that under Article 805 of the New Civil Code, every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express
direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another,
While the petitioner submits that Article 820 and 821 of the New Civil Code speak of the competency of a witness due to his
qualifications under the first Article and none of the disqualifications under the second Article, whereas Article 805 requires the
attestation of three or more credible witnesses, petitioner concludes that the term credible requires something more than just
being competent and, therefore, a witness in addition to being competent under Articles 820 and 821 must also be a credible
witness under Article 805.
Petitioner cites American authorities that competency and credibility of a witness are not synonymous terms and one may be a
competent witness and yet not a credible one. She exacerbates that there is no evidence on record to show that the
instrumental witnesses are credible in themselves, that is, that they are of good standing in the community since one was a
family driver by profession and the second the wife of the driver, a housekeeper. It is true that Celso Gimpaya was the driver of
the testatrix and his wife Maria Gimpaya, merely a housekeeper, and that Matilde Orobia was a piano teacher to a grandchild
of the testatrix But the relation of employer and employee much less the humble or financial position of a person do not
disqualify him to be a competent testamentary witness. (Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344;
Testate Estate of Raymundo, Off. Gaz., March 18,1941, p. 788).
Private respondent maintains that the qualifications of the three or more credible witnesses mentioned in Article 805 of the
Civil Code are those mentioned in Article 820 of the same Code, this being obvious from that portion of Article 820 which says
"may be Q witness to the execution of a will mentioned in Article 805 of this Code," and cites authorities that the word
"credible" insofar as witnesses to a will are concerned simply means " competent." Thus, in the case of Suntay vs. Suntay, 95
Phil. 500, the Supreme Court held that "Granting that a will was duly executed and that it was in existence at the time of, and
not revoked before, the death of the testator, still the provisions of the lost wig must be clearly and distinctly proved by at least

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two credible witnesses. 'Credible witnesses' mean competent witnesses and not those who testify to facts from or upon hearsay.
" emphasis supplied).
In Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344, the Supreme Court held that "Section 620 of the same Code
of Civil Procedure provides that any person of sound mind, and of the age of eighteen years or more, and not blind, deaf, or
dumb and able to read and write, may be a witness to the execution of a will. This same provision is reproduced in our New
Civil Code of 1950, under Art. 820. The relation of employer and employee, or being a relative to the beneficiary in a win, does
not disqualify one to be a witness to a will. The main qualification of a witness in the attestation of wills, if other qualifications
as to age, mental capacity and literacy are present, is that said witness must be credible, that is to say, his testimony may be
entitled to credence. There is a long line of authorities on this point, a few of which we may cite:
A 'credible witness is one who is not is not to testify by mental incapacity, crime, or other cause. Historical Soc of Dauphin
County vs. Kelker 74 A. 619, 226 Pix 16, 134 Am. St. Rep. 1010. (Words and Phrases, Vol. 10, p. 340).
As construed by the common law, a 'credible witness' to a will means a 'competent witness.' Appeal of Clark, 95 A. 517, 114
Me. 105, Ann. Cas. 1917A, 837. (lbid, p. 341).
Expression 'credible witness' in relation to attestation of wins means 'competent witness that is, one competent under the law
to testify to fact of execution of will. Vernon's Ann. Civ St. art. 8283. Moos vs. First State Bank of Uvalde, Tex . Civ. App. 60 S.W.
2nd 888, 889. (Ibid, p. 342)
The term 'credible', used in the statute of wills requiring that a will shall be attested by two credible witnesses means
competent; witnesses who, at the time of attesting the will, are legally competent to testify, in a court of justice, to the facts
attested by subscribing the will, the competency being determined as of the date of the execution of the will and not of the
timr it is offered for probate, Smith vs. Goodell 101 N.E. 255, 256, 258 111. 145. (Ibid.)
Credible witnesses as used in the statute relating to wills, means competent witnesses — that is, such persons as are not legally
disqualified from testifying in courts of justice, by reason of mental incapacity, interest, or the commission of crimes, or other
cause excluding them from testifying generally, or rendering them incompetent in respect of the particular subject matter or in
the particular suit. Hill vs. Chicago Title & Trust co 152 N.E. 545, 546, 322 111. 42. (Ibid. p, 343)
In the strict sense, the competency of a person to be an instrumental witness to a will is determined by the statute, that is Art.
820 and 821, Civil Code, whereas his credibility depends On the appreciation of his testimony and arises from the belief and
conclusion of the Court that said witness is telling the truth. Thus, in the case of Vda. de Aroyo v. El Beaterio del Santissimo
Rosario de Molo, No. L-22005, May 3, 1968, the Supreme Court held and ruled that: "Competency as a witness is one thing, and
it is another to be a credible witness, so credible that the Court must accept what he says. Trial courts may allow a person to
testify as a witness upon a given matter because he is competent, but may thereafter decide whether to believe or not to
believe his testimony." In fine, We state the rule that the instrumental witnesses in Order to be competent must be shown to
have the qualifications under Article 820 of the Civil Code and none of the disqualifications under Article 821 and for their
testimony to be credible, that is worthy of belief and entitled to credence, it is not mandatory that evidence be first established
on record that the witnesses have a good standing in the community or that they are honest and upright or reputed to be
trustworthy and reliable, for a person is presumed to be such unless the contrary is established otherwise. In other words, the
instrumental witnesses must be competent and their testimonies must be credible before the court allows the probate of the
will they have attested. We, therefore, reject petitioner's position that it was fatal for respondent not to have introduced prior
and independent proof of the fact that the witnesses were "credible witnesses that is, that they have a good standing in the
community and reputed to be trustworthy and reliable.
Under the second, third, fourth, fifth, sixth, seventh and eighth assignments of errors, petitioner disputes the findings of fact of
the respondent court in finding that the preparation and execution of the will was expected and not coincidental, in finding that
Atty. Paraiso was not previously furnished with the names and residence certificates of the witnesses as to enable him to type
such data into the document Exhibit "F", in holding that the fact that the three typewritten lines under the typewritten words
"pangalan" and "tinitirahan" were left blank shows beyond cavil that the three attesting witnesses were all present in the same
occasion, in holding credible that Isabel Gabriel could have dictated the will without note or document to Atty. Paraiso, in
holding that Matilde Orobia was physically present when the will was signed on April 15, 1961 by the deceased Isabel Gabriel
and the other witnesses Celso Gimpaya and Maria Gimpaya, in holding that the trial court gave undue importance to the
picture takings as proof that the will was improperly executed, and in holding that the grave contradictions, evasions and
misrepresentations of the witnesses (subscribing and notary) presented by the petitioner had been explained away.
Since the above errors are factual We must repeat what We have previously laid down that the findings of fact of the appellate
court are binding and controlling which We cannot review, subject to certain exceptions which We win consider and discuss
hereinafter. We are convinced that the appellate court's findings are sufficiently justified and supported by the evidence on
record. Thus, the alleged unnaturalness characterizing the trip of the testatrix to the office of Atty. Paraiso and bringing all the
witnesses without previous appointment for the preparation and execution of the win and that it was coincidental that Atty.

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Paraiso was available at the moment impugns the finding of the Court of Appeals that although Atty. Paraiso admitted the visit
of Isabel Gabriel and of her companions to his office on April 15, 1961 was unexpected as there was no prior appointment with
him, but he explained that he was available for any business transaction on that day and that Isabel Gabriel had earlier
requested him to help her prepare her will. The finding of the appellate court is amply based on the testimony of Celso
Gimpaya that he was not only informed on the morning of the day that he witnessed the will but that it was the third time
when Isabel Gabriel told him that he was going to witness the making of her will, as well as the testimony of Maria Gimpaya
that she was called by her husband Celso Gimpaya to proceed to Isabel Gabriel's house which was nearby and from said house,
they left in a car to the lawyer's office, which testimonies are recited in the respondent Court's decision.
The respondent Court further found the following facts: that Celso Gimpaya and his wife Maria Gimpaya obtained residence
certificates a few days before Exhibit "F" was executed. Celso Gimpaya's residence certificate No. A-5114942 was issued at
Navotas, Rizal on April 13, 1961 while Maria Gimpaya's residence certificate No. A-5114974 was issued also at Navotas, Rizal on
April 14, 1961. The respondent Court correctly observed that there was nothing surprising in these facts and that the securing
of these residence certificates two days and one day, respectively, before the execution of the will on April 15, 1961, far from
showing an amazing coincidence, reveals that the spouses were earlier notified that they would be witnesses to the execution
of Isabel Gabriel's will.
We also agree with the respondent Court's conclusion that the excursion to the office of Atty. Paraiso was planned by the
deceased, which conclusion was correctly drawn from the testimony of the Gimpaya spouses that they started from the
Navotas residence of the deceased with a photographer and Isabel Gabriel herself, then they proceeded by car to Matilde
Orobia's house in Philamlife, Quezon City to fetch her and from there, all the three witnesses (the Gimpayas and Orobia) passed
by a place where Isabel Gabriel stayed for about ten to fifteen minutes at the clinic of Dr. Chikiamco before they proceeded to
Atty. Cipriano Paraiso's office.
It is also evident from the records, as testified to by Atty. Paraiso, that previous to the day that. the will was executed on April
15, 1961, Isabel Gabriel had requested him to help her in the execution of her will and that he told her that if she really wanted
to execute her will, she should bring with her at least the Mayor of Navotas, Rizal and a Councilor to be her witnesses and that
he (Atty. Paraiso) wanted a medical certificate from a physician notwithstanding the fact that he believed her to be of sound
and disposition mind. From this evidence, the appellate court rightly concluded, thus: "It is, therefore, clear that the presence
of Isabel Gabriel and her witnesses Matilde Orobia, Celso Gimpaya and Maria Gimpaya including the photographer in the law
office of Atty. Paraiso was not coincidental as their gathering was pre-arranged by Isabel Gabriel herself."
As to the appellate court's finding that Atty. Paraiso was not previously furnished with the names and residence certificates of
the witnesses as to enable him to type such data into the document Exhibit ' L which the petitioner assails as contradictory and
irreconcilable with the statement of the Court that Atty. Paraiso was handed a list (containing the names of the witnesses and
their respective residence certificates) immediately upon their arrival in the law office by Isabel Gabriel and this was
corroborated by Atty. Paraiso himself who testified that it was only on said occasion that he received such list from Isabel
Gabriel, We cannot agree with petitioner's contention. We find no contradiction for the, respondent Court held that on the
occasion of the will making on April 15, 1961, the list was given immediately to Atty. Paraiso and that no such list was given the
lawyer in any previous occasion or date prior to April 15, 1961.
But whether Atty. Paraiso was previously furnished with the names and residence certificates of the witnesses on a prior
occasion or on the very occasion and date in April 15, 1961 when the will was executed, is of no moment for such data appear
in the notarial acknowledgment of Notary Public Cipriano Paraiso, subscribed and sworn to by the witnesses on April 15, 1961
following the attestation clause duly executed and signed on the same occasion, April 15, 1961. And since Exhibit "F" is a
notarial will duly acknowledged by the testatrix and the witnesses before a notary public, the same is a public document
executed and attested through the intervention of the notary public and as such public document is evidence of the facts in
clear, unequivocal manner therein expressed. It has in its favor the presumption of regularity. To contradict all these, there
must be evidence that is clear, convincing and more than merely preponderant. (Yturalde vs. Azurin, 28 SCRA 407). We find no
such evidence pointed by petitioner in the case at bar.
Likewise, the conclusion of the Court of Appeals in holding that the fact that the three typewritten lines under the typewritten
words "pangalan ' and "tinitirahan" were left blank shows beyond cavil that the three attesting witnesses were all present in
the same occasion merits Our approval because tills conclusion is supported and borne out by the evidence found by the
appellate court, thus: "On page 5 of Exhibit "F", beneath the typewritten words "names", "Res. Tax Cert. date issued" and place
issued the only name of Isabel Gabriel with Residence Tax certificate No. A-5113274 issued on February 24, 1961 at Navotas
Rizal appears to be in typewritten form while the names, residence tax certificate numbers, dates and places of issuance of said
certificates pertaining to the three (3) witnesses were personally handwritten by Atty. Paraiso. Again, this coincides with Atty.
Paraiso's even the sale must be made to close relatives; and the seventh was the appointment of the appellant Santiago as
executrix of the will without bond. The technical description of the properties in paragraph 5 of Exhibit F was not given and the
numbers of the certificates of title were only supplied by Atty. Paraiso. "

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

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with the Court's rationalization in conformity with logic, law and jurisprudence which do not require picture-taking as one of
the legal requisites for the execution or probate of a will.
Petitioner points to alleged grave contradictions, evasions and misrepresentations of witnesses in their respective testimonies
before the trial court. On the other hand, the respondent Court of Appeals held that said contradictions, evasions and
misrepresentations had been explained away. Such discrepancies as in the description of the typewriter used by Atty. Paraiso
which he described as "elite" which to him meant big letters which are of the type in which the will was typewritten but which
was Identified by witness Jolly Bugarin of the N.B.I. as pica the mistake in mentioning the name of the photographer by Matilde
Orobia to be Cesar Mendoza when actually it was Benjamin Cifra, Jr.— these are indeed unimportant details which could have
been affected by the lapse of time and the treachery of human memory such that by themselves would not alter the probative
value of their testimonies on the true execution of the will, (Pascual vs. dela Cruz, 28 SCRA 421, 424) for it cannot be expected
that the testimony of every person win be Identical and coinciding with each other with regard to details of an incident and that
witnesses are not expected to remember all details. Human experience teach us "that contradictions of witnesses generally
occur in the details of certain incidents, after a long series of questionings, and far from being an evidence of falsehood
constitute a demonstration of good faith. In as much as not all those who witness an incident are impressed in like manner, it is
but natural that in relating their impressions, they should not agree in the minor details; hence the contradictions in their
testimony." (Lopez vs. Liboro, 81 Phil. 429).
It is urged of Us by the petitioner that the findings of the trial court should not have been disturbed by the respondent
appellate court because the trial court was in a better position to weigh and evaluate the evidence presented in the course of
the trial. As a general rule, petitioner is correct but it is subject to well-established exceptions. The right of the Court of Appeals
to review, alter and reverse the findings of the trial court where the appellate court, in reviewing the evidence has found that
facts and circumstances of weight and influence have been ignored and overlooked and the significance of which have been
misinterpreted by the trial court, cannot be disputed. Findings of facts made by trial courts particularly when they are based on
conflicting evidence whose evaluation hinges on questions of credibility of contending witnesses hes peculiarly within the
province of trial courts and generally, the appellate court should not interfere with the same. In the instant case, however, the
Court of Appeals found that the trial court had overlooked and misinterpreted the facts and circumstances established in the
record. Whereas the appellate court said that "Nothing in the record supports the trial court's unbelief that Isabel Gabriel
dictated her will without any note or document to Atty. Paraiso;" that the trial court's conclusion that Matilde Orobia could not
have witnessed anybody signing the alleged will or that she could not have witnessed Celso Gimpaya and Maria Gimpaya sign
the same or that she witnessed only the deceased signing it, is a conclusion based not on facts but on inferences; that the trial
court gave undue importance to the picture-takings, jumping therefrom to the conclusion that the will was improperly
executed and that there is nothing in the entire record to support the conclusion of the court a quo that the will signing
occasion was a mere coincidence and that Isabel Gabriel made an appointment only with Matilde Orobia to witness the signing
of her will, then it becomes the duty of the appellate court to reverse findings of fact of the trial court in the exercise of its
appellate jurisdiction over the lower courts.
Still the petitioner insists that the case at bar is an exception to the rule that the judgment of the Court of Appeals is conclusive
as to the facts and cannot be reviewed by the Supreme Court. Again We agree with the petitioner that among the exceptions
are: (1) when the conclusion is a finding grounded entirely on speculations, surmises or conjectures; (2) when the inference is
manifestly mistaken, absurd or impossible; (3) when there is a grave abuse of discretion; (4) when the presence of each other
as required by law. " Specifically, We affirm that on April 15, 1961 the testatrix Isabel Gabriel, together with Matilde Orobia,
Celso Gimpaya and his wife Maria Gimpaya, and a photographer proceeded in a car to the office of Atty. Cipriano Paraiso at the
Bank of P.I. Building, Manila in the morning of that day; that on the way, Isabel Gabriel obtained a medical certificate from one
Dr. Chikiamko which she gave to Atty. Paraiso upon arriving at the latter's office and told the lawyer that she wanted her will to
be made; that Atty. Paraiso asked Isabel Gabriel to dictate what she wanted to be written in the will and the attorney wrote
down the dictation of Isabel Gabriel in Tagalog, a language known to and spoken by her; that Atty. Paraiso read back to her
what he wrote as dictated and she affirmed their correctness; the lawyer then typed the will and after finishing the document,
he read it to her and she told him that it was alright; that thereafter, Isabel Gabriel signed her name at the end of the will in the
presence of the three witnesses Matilde Orobia, Celso Gimpaya and Maria Gimpaya and also at the left-hand margin of each
and every page of the document in the presence also of the said three witnesses; that thereafter Matilde Orobia attested the
will by signing her name at the end of the attestation clause and at the left-hand margin of pages 1, 2, 3 and 5 of the document
in the presence of Isabel Gabriel and the other two witnesses, Celso Gimpaya and Maria Gimpaya; then, Celso Gimpaya signed
also the will at the bottom of the attestation clause and at the left-hand margin of the other pages of the document in the
presence of Isabel Gabriel, Matilde Orobia and Maria Gimpaya; that Maria Gimpaya followed suit, signing her name at the foot
of the attestation clause and at the left-hand margin of every page in the presence of Isabel Gabriel, Matilde Orobia and Celso
Gimpaya; that thereafter, Atty. Paraiso notarized the will as Page No. 94, Book No. IV, Series of 1961, in his Notarial Register.
On the occasion of the execution and attestation of the will, a photographer took pictures, one Exhibit "G", depicting Matilde
Orobia, the testatrix Isabel Gabriel, Celso Gimpaya, Maria Gimpaya and Atty. Paraiso, taken on said occasion of the signing of
the will, and another, Exhibit "H", showing Matilde Orobia signing testimony that he had earlier advised Isabel Gabriel to bring

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with her at least the Mayor and a Councilor of Navotas, Rizal to be her witnesses for he did not know beforehand the Identities
of the three attesting witnesses until the latter showed up at his law office with Isabel Gabriel on April 15, 1961. Atty. Paraiso's
claim which was not controverted that he wrote down in his own hand the date appearing on page 5 of Exhibit "F" dissipates
any lingering doubt that he prepared and ratified the will on the date in question."
It is also a factual finding of the Court of Appeals in holding that it was credible that Isabel Gabriel could have dictated the will,
Exhibit "F", without any note or document to Atty. Paraiso as against the contention of petitioner that it was incredible. This
ruling of the respondent court is fully supported by the evidence on record as stated in the decision under review, thus:
"Nothing in the record supports the trial court's unbelief that Isabel Gabriel dictated her will without any note or document to
Atty. Paraiso. On the contrary, all the three attesting witnesses uniformly testified that Isabel Gabriel dictated her will to Atty.
Paraiso and that other than the piece of paper that she handed to said lawyer she had no note or document. This fact jibes with
the evidence — which the trial court itself believed was unshaken — that Isabel Gabriel was of sound disposing memory when
she executed her will.
Exhibit "F" reveals only seven (7) dispositions which are not complicated but quite simple. The first was Isabel Gabriel's wish to
be interred according to Catholic rites the second was a general directive to pay her debts if any; the third provided for
P1,000.00 for her sister Praxides Gabriel Vda. de Santiago and P2,000.00 for her brother Santiago Gabriel; the fourth was a
listing of her 13 nephews and nieces including oppositor-appellee Rizalina Gabriel and the amount for each legatee the fifth was
the institution of the petitioner-appellant, Lutgarda Santiago as the principal heir mentioning in general terms seven (7) types
of properties; the sixth disposed of the remainder of her estate which she willed in favor of appellant Lutgarda Santiago but
prohibiting the sale of such properties to anyone except in extreme situations in which judgment is based on a
misapprehension of facts; (5) when the findings of fact are conflicting, (6) when the Court of Appeals, in making its findings,
went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee. (Roque vs. Buan,
et al., G.R. No. L-22459, Oct. 31, 1967; Ramos vs. Pepsi Cola Bottling Co., G.R. No. L-22533, Feb. 9, 1967; Hilarion Jr. vs. City of
Manila, G.R. No. L-19570; Sept. 14, 1967).
Petitioner's insistence is without merit. We hold that the case at bar does not fall within any of the exceptions enumerated
above. We likewise hold that the findings of fact of the respondent appellate court are fully supported by the evidence on
record. The conclusions are fully sustained by substantial evidence. We find no abuse of discretion and We discern no
misapprehension of facts. The respondent Court's findings of fact are not conflicting. Hence, the well-established rule that the
decision of the Court of Appeals and its findings of fact are binding and conclusive and should not be disturbed by this Tribunal
and it must be applied in the case at bar in its full force and effect, without qualification or reservation. The above holding
simply synthesize the resolutions we have heretofore made in respect ' to petitioner's previous assignments of error and to
which We have disagreed and, therefore, rejected.
The last assignments of error of petitioner must necessarily be rejected by Us as We find the respondent Court acted properly
and correctly and has not departed from the accepted and usual course of judicial proceedings as to call for the exercise of the
power of supervision by the Supreme Court, and as We find that the Court of Appeals did not err in reversing the decision of
the trial court and admitting to probate Exhibit "F", the last will and testament of the deceased Isabel Gabriel.
We rule that the respondent Court's factual findings upon its summation and evaluation of the evidence on record is
unassailable that: "From the welter of evidence presented, we are convinced that the will in question was executed on April 15,
1961 in the presence of Matilde Orobia, Celso Gimpaya and Maria Gimpaya signing and witnessing the same in the the will on a
table with Isabel Gabriel, Celso Gimpaya and Maria Gimpaya sitting around the table. Atty. Paraiso, after finishing the notarial
act, then delivered the original to Isabel Gabriel and retained the other copies for his file and notarial register. A few days
following the signing of the will, Isabel Gabriel, Celso Gimpaya and another photographer arrived at the office of Atty. Paraiso
and told the lawyer that she wanted another picture taken because the first picture did not turn out good. The lawyer told her
that this cannot be done because the will was already signed but Isabel Gabriel insisted that a picture be taken, so a simulated
signing was performed during which incident Matilde Orobia was not present.
Petitioner's exacerbation centers on the supposed incredibility of the testimonies of the witnesses for the proponent of the will,
their alleged evasions, inconsistencies and contradictions. But in the case at bar, the three instrumental witnesses who
constitute the best evidence of the will making have testified in favor of the probate of the will. So has the lawyer who
prepared it, one learned in the law and long in the practice thereof, who thereafter notarized it. All of them are disinterested
witnesses who stand to receive no benefit from the testament. The signatures of the witnesses and the testatrix have been
identified on the will and there is no claim whatsoever and by anyone, much less the petitioner, that they were not genuine. In
the last and final analysis, the herein conflict is factual and we go back to the rule that the Supreme Court cannot review and
revise the findings of facts of the respondent Court of Appeals.
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is hereby AFFIRMED, with costs against the petitioner.
SO ORDERED.

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G.R. No. 76464 February 29, 1988
TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO CASIANO, CONSTANCIO MALOTO, PURIFICACION
MIRAFLOR, ROMAN CATHOLIC CHURCH OF MOLO, AND ASILO DE MOLO, petitioners,
vs.
COURT OF APPEALS, PANFILO MALOTO AND FELINO MALOTO, respondents.

SARMIENTO, J.:
This is not the first time that the parties to this case come to us. In fact, two other cases directly related to the present one and
involving the same parties had already been decided by us in the past. In G.R. No. L-30479, 1 which was a petition for certiorari
and mandamus instituted by the petitioners herein, we dismissed the petition ruling that the more appropriate remedy of the
petitioners is a separate proceeding for the probate of the will in question. Pursuant to the said ruling, the petitioners
commenced in the then Court of First Instance of Iloilo, Special Proceeding No. 2176, for the probate of the disputed will, which
was opposed by the private respondents presently, Panfilo and Felino both surnamed Maloto. The trial court dismissed the
petition on April 30, 1970. Complaining against the dismissal, again, the petitioners came to this Court on a petition for review
by certiorari. 2 Acting on the said petition, we set aside the trial court's order and directed it to proceed to hear the case on the
merits. The trial court, after hearing, found the will to have already been revoked by the testatrix. Adriana Maloto, and thus,
denied the petition. The petitioners appealed the trial court's decision to the Intermediate Appellate Court which, on June 7,
1985, affirmed the order. The petitioners' motion for reconsideration of the adverse decision proved to be of no avail, hence,
this petition.
For a better understanding of the controversy, a factual account would be a great help.
On October 20, 1963, Adriana Maloto died leaving as heirs her niece and nephews, the petitioners Aldina Maloto-Casiano and
Constancio, Maloto, and the private respondents Panfilo Maloto and Felino Maloto. Believing that the deceased did not leave
behind a last will and testament, these four heirs commenced on November 4, 1963 an intestate proceeding for the settlement
of their aunt's estate. The case was instituted in the then Court of First Instance of Iloilo and was docketed as Special
Proceeding No. 1736. However, while the case was still in progress, or to be exact on February 1, 1964, the parties — Aldina,
Constancio, Panfilo, and Felino — executed an agreement of extrajudicial settlement of Adriana's estate. The agreement
provided for the division of the estate into four equal parts among the parties. The Malotos then presented the extrajudicial
settlement agreement to the trial court for approval which the court did on March 21, 1964. That should have signalled the end
of the controversy, but, unfortunately, it had not.
Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former associate of Adriana's counsel, the late Atty. Eliseo
Hervas, discovered a document entitled "KATAPUSAN NGA PAGBUBULAT-AN (Testamento)," dated January 3,1940, and
purporting to be the last will and testament of Adriana. Atty. Palma claimed to have found the testament, the original copy,
while he was going through some materials inside the cabinet drawer formerly used by Atty. Hervas. The document was
submitted to the office of the clerk of the Court of First Instance of Iloilo on April 1, 1967. Incidentally, while Panfilo and Felino
are still named as heirs in the said will, Aldina and Constancio are bequeathed much bigger and more valuable shares in the
estate of Adriana than what they received by virtue of the agreement of extrajudicial settlement they had earlier signed. The
will likewise gives devises and legacies to other parties, among them being the petitioners Asilo de Molo, the Roman Catholic
Church of Molo, and Purificacion Miraflor.
Thus, on May 24, 1967, Aldina and Constancio, joined by the other devisees and legatees named in the will, filed in Special
Proceeding No. 1736 a motion for reconsideration and annulment of the proceedings therein and for the allowance of the will
When the trial court denied their motion, the petitioner came to us by way of a petition for certiorari and mandamus assailing
the orders of the trial court . 3 As we stated earlier, we dismissed that petition and advised that a separate proceeding for the
probate of the alleged will would be the appropriate vehicle to thresh out the matters raised by the petitioners.
Significantly, the appellate court while finding as inconclusive the matter on whether or not the document or papers allegedly
burned by the househelp of Adriana, Guadalupe Maloto Vda. de Coral, upon instructions of the testatrix, was indeed the will,
contradicted itself and found that the will had been revoked. The respondent court stated that the presence of animus
revocandi in the destruction of the will had, nevertheless, been sufficiently proven. The appellate court based its finding on the
facts that the document was not in the two safes in Adriana's residence, by the testatrix going to the residence of Atty. Hervas
to retrieve a copy of the will left in the latter's possession, and, her seeking the services of Atty. Palma in order to have a new
will drawn up. For reasons shortly to be explained, we do not view such facts, even considered collectively, as sufficient bases
for the conclusion that Adriana Maloto's will had been effectively revoked.
There is no doubt as to the testamentary capacity of the testatrix and the due execution of the will. The heart of the case lies on
the issue as to whether or not the will was revoked by Adriana.

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The provisions of the new Civil Code pertinent to the issue can be found in Article 830.
Art. 830. No will shall be revoked except in the following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as provided in case of wills: or
(3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the testator himself, or by some
other person in his presence, and by his express direction. If burned, torn cancelled, or obliterated by some other person, without
the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its
contents, and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are established according
to the Rules of Court. (Emphasis Supplied.)
It is clear that the physical act of destruction of a will, like burning in this case, does not per se constitute an effective
revocation, unless the destruction is coupled with animus revocandi on the part of the testator. It is not imperative that the
physical destruction be done by the testator himself. It may be performed by another person but under the express direction
and in the presence of the testator. Of course, it goes without saying that the document destroyed must be the will itself.
In this case, while animus revocandi or the intention to revoke, may be conceded, for that is a state of mind, yet that requisite
alone would not suffice. "Animus revocandi is only one of the necessary elements for the effective revocation of a last will and
testament. The intention to revoke must be accompanied by the overt physical act of burning, tearing, obliterating, or
cancelling the will carried out by the testator or by another person in his presence and under his express direction. There is
paucity of evidence to show compliance with these requirements. For one, the document or papers burned by Adriana's maid,
Guadalupe, was not satisfactorily established to be a will at all, much less the will of Adriana Maloto. For another, the burning
was not proven to have been done under the express direction of Adriana. And then, the burning was not in her presence. Both
witnesses, Guadalupe and Eladio, were one in stating that they were the only ones present at the place where the stove
(presumably in the kitchen) was located in which the papers proffered as a will were burned.
The respondent appellate court in assessing the evidence presented by the private respondents as oppositors in the trial court,
concluded that the testimony of the two witnesses who testified in favor of the will's revocation appear "inconclusive." We
share the same view. Nowhere in the records before us does it appear that the two witnesses, Guadalupe Vda. de Corral and
Eladio Itchon, both illiterates, were unequivocably positive that the document burned was indeed Adriana's will. Guadalupe, we
think, believed that the papers she destroyed was the will only because, according to her, Adriana told her so. Eladio, on the
other hand, obtained his information that the burned document was the will because Guadalupe told him so, thus, his
testimony on this point is double hearsay.
At this juncture, we reiterate that "(it) is an important matter of public interest that a purported win is not denied legalization
on dubious grounds. Otherwise, the very institution of testamentary succession will be shaken to its very foundations ...."4
The private respondents in their bid for the dismissal of the present action for probate instituted by the petitioners argue that
the same is already barred by res adjudicata. They claim that this bar was brought about by the petitioners' failure to appeal
timely from the order dated November 16, 1968 of the trial court in the intestate proceeding (Special Proceeding No. 1736)
denying their (petitioners') motion to reopen the case, and their prayer to annul the previous proceedings therein and to allow
the last will and testament of the late Adriana Maloto. This is untenable.
The doctrine of res adjudicata finds no application in the present controversy. For a judgment to be a bar to a subsequent case,
the following requisites must concur: (1) the presence of a final former judgment; (2) the former judgment was rendered by a
court having jurisdiction over the subject matter and the parties; (3) the former judgment is a judgment on the merits; and (4)
there is, between the first and the second action, Identity of parties, of subject matter, and of cause of action. 5 We do not find
here the presence of all the enumerated requisites.
For one, there is yet, strictly speaking, no final judgment rendered insofar as the probate of Adriana Maloto's will is concerned.
The decision of the trial court in Special Proceeding No. 1736, although final, involved only the intestate settlement of the
estate of Adriana. As such, that judgment could not in any manner be construed to be final with respect to the probate of the
subsequently discovered will of the decedent. Neither is it a judgment on the merits of the action for probate. This is
understandably so because the trial court, in the intestate proceeding, was without jurisdiction to rule on the probate of the
contested will . 6 After all, an action for probate, as it implies, is founded on the presence of a will and with the objective of
proving its due execution and validity, something which can not be properly done in an intestate settlement of estate
proceeding which is predicated on the assumption that the decedent left no will. Thus, there is likewise no Identity between the
cause of action in intestate proceeding and that in an action for probate. Be that as it may, it would be remembered that it was
precisely because of our ruling in G.R. No. L-30479 that the petitioners instituted this separate action for the probate of the late

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Adriana Maloto's will. Hence, on these grounds alone, the position of the private respondents on this score can not be
sustained.
One last note. The private respondents point out that revocation could be inferred from the fact that "(a) major and substantial
bulk of the properties mentioned in the will had been disposed of: while an insignificant portion of the properties remained at
the time of death (of the testatrix); and, furthermore, more valuable properties have been acquired after the execution of the
will on January 3,1940." 7 Suffice it to state here that as these additional matters raised by the private respondents are
extraneous to this special proceeding, they could only be appropriately taken up after the will has been duly probated and a
certificate of its allowance issued.
WHEREFORE, judgment is hereby rendered REVERSING and SETTING ASIDE the Decision dated June 7, 1985 and the Resolution
dated October 22, 1986, of the respondent Court of Appeals, and a new one ENTERED for the allowance of Adriana Maloto's
last will and testament. Costs against the private respondents.
This Decision is IMMEDIATELY EXECUTORY.
SO ORDERED.

129
G.R. No. L-12190 August 30, 1958
TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E. GAN, petitioner-appellant,
vs.
ILDEFONSO YAP, oppositor-appellee.
Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for appellant.
Arturo M. Tolentino for appellee.
BENGZON, J.:
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of Santo Tomas Hospital, leaving
properties in Pulilan, Bulacan, and in the City of Manila.
On March 17, 1952, Fausto E. Gan initiated them proceedings in the Manila court of first instance with a petition for the
probate of a holographic will allegedly executed by the deceased, substantially in these words:

Nobyembre 5, 1951.

Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay nagsasalaysay na ang aking kayamanan sa bayan ng Pulilan,
Bulacan ay aking ipinamamana sa aking mga kamag-anakang sumusunod:

Vicente Esguerra, Sr. 5 Bahagi

.............................................

Fausto E. Gan 2 Bahagi

.........................................................

Rosario E. Gan 2 Bahagi

.........................................................

Filomena Alto 1 Bahagi

..........................................................

Beatriz Alto 1 Bahagi

..............................................................

At ang aking lahat ng ibang kayamanan sa Maynila at iba panglugar ay aking ipinamamana sa aking asawang si Idelfonso D. Yap
sa kondisyong siya'y magpapagawa ng isang Health Center na nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa bayan
ng Pulilan, Bulacan, na nakaukit ang aking pangalang Felicidad Esguerra-Alto. At kung ito ay may kakulangan man ay bahala na
ang aking asawa ang magpuno upang matupad ang aking kagustuhan.

(Lagda) Felicidad E. Alto-Yap.

Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not left any will, nor executed any
testament during her lifetime.
After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose, Judge, 1 refused to probate the alleged
will. A seventy-page motion for reconsideration failed. Hence this appeal.
The will itself was not presented. Petitioner tried to establish its contents and due execution by the statements in open court of
Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan Jimenez, whose testimonies may be summarized as follows:
Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first cousin, Vicente Esguerra, her desire to
make a will. She confided however that it would be useless if her husband discovered or knew about it. Vicente consulted with
Fausto E. Gan, nephew of Felicidad, who was then preparing for the bar examinations. The latter replied it could be done
without any witness, provided the document was entirely in her handwriting, signed and dated by her. Vicente Esguerra lost no
time in transmitting the information, and on the strength of it, in the morning of November 5, 1951, in her residence at Juan
Luna Street, Manila, Felicidad wrote, signed and dated a holographic will substantially of the tenor above transcribed, in the
presence of her niece, Felina Esguerra (daughter of Vicente), who was invited to read it. In the afternoon of that day, Felicidad
was visited by a distant relative, Primitivo Reyes, and she allowed him to read the will in the presence of Felina Esguerra, who
again read it.

130
Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan Jimenez, a niece. To these she showed the will,
again in the presence of Felina Esguerra, who read it for the third time.
When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last illness, she entrusted the said will, which
was contained in a purse, to Felina Esguerra. But a few hours later, Ildefonso Yap, her husband, asked Felina for the purse: and
being afraid of him by reason of his well-known violent temper, she delivered it to him. Thereafter, in the same day, Ildefonso
Yap returned the purse to Felina, only to demand it the next day shortly before the death of Felicidad. Again, Felina handed it to
him but not before she had taken the purse to the toilet, opened it and read the will for the last time.2
From the oppositor's proof it appears that Felicidad Esguerra had been suffering from heart disease for several years before her
death; that she had been treated by prominent physicians, Dr. Agerico Sison, Dr. Agustin Liboro and others; that in May 1950
husband and wife journeyed to the United States wherein for several weeks she was treated for the disease; that thereafter she
felt well and after visiting interesting places, the couple returned to this country in August 1950. However, her ailment
recurred, she suffered several attacks, the most serious of which happened in the early morning of the first Monday of
November 1951 (Nov. 5). The whole household was surprised and alarmed, even the teachers of the Harvardian Colleges
occupying the lower floors and of by the Yap spouses. Physician's help was hurriedly called, and Dr. Tanjuaquio arrived at about
8:00 a.m., found the patient hardly breathing, lying in bed, her head held high by her husband. Injections and oxygen were
administered. Following the doctor's advice the patient stayed in bed, and did nothing the whole day, her husband and her
personal attendant, Mrs. Bantique, constantly at her side. These two persons swore that Mrs. Felicidad Esguerra Yap made no
will, and could have made no will on that day.
The trial judge refused to credit the petitioner's evidence for several reasons, the most important of which were these: (a) if
according to his evidence, the decedent wanted to keep her will a secret, so that her husband would not know it, it is strange
she executed it in the presence of Felina Esguerra, knowing as she did that witnesses were unnecessary; (b) in the absence of a
showing that Felina was a confidant of the decedent it is hard to believe that the latter would have allowed the former to see
and read the will several times; (c) it is improbable that the decedent would have permitted Primitivo Reyes, Rosario Gan
Jimenez and Socorro Olarte to read her will, when she precisely wanted its contents to remain a secret during her lifetime; (d) it
is also improbable that her purpose being to conceal the will from her husband she would carry it around, even to the hospital,
in her purse which could for one reason or another be opened by her husband; (e) if it is true that the husband demanded the
purse from Felina in the U.S.T. Hospital and that the will was there, it is hard to believe that he returned it without destroying
the will, the theory of the petitioner being precisely that the will was executed behind his back for fear he will destroy it.
In the face of these improbabilities, the trial judge had to accept the oppositor's evidence that Felicidad did not and could not
have executed such holographic will.
In this appeal, the major portion of appellant's brief discussed the testimony of the oppositor and of his witnesses in a vigorous
effort to discredit them. It appears that the same arguments, or most of them, were presented in the motion to reconsider; but
they failed to induce the court a quo to change its mind. The oppositor's brief, on the other hand, aptly answers the criticisms.
We deem it unnecessary to go over the same matters, because in our opinion the case should be decided not on the weakness
of the opposition but on the strength of the evidence of the petitioner, who has the burden of proof.
The Spanish Civil Code permitted the execution of holographic wills along with other forms. The Code of Civil Procedure (Act
190) approved August 7, 1901, adopted only one form, thereby repealing the other forms, including holographic wills.
The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "A person may execute a holographic will
which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form and may be
made in or out of the Philippines, and need not be witnessed."
This is indeed a radical departure from the form and solemnities provided for wills under Act 190, which for fifty years (from
1901 to 1950) required wills to be subscribed by the testator and three credible witnesses in each and every page; such
witnesses to attest to the number of sheets used and to the fact that the testator signed in their presence and that they signed
in the presence of the testator and of each other.
The object of such requirements it has been said, is to close the door against bad faith and fraud, to prevent substitution of
wills, to guarantee their truth and authencity (Abangan vs. Abangan, 40 Phil., 476) and to avoid those who have no right to
succeed the testator would succeed him and be benefited with the probate of same. (Mendoza vs. Pilapil, 40 Off. Gaz., 1855).
However, formal imperfections may be brushed aside when authenticity of the instrument is duly proved. (Rodriguez vs Yap, 40
Off. Gaz. 1st Supp. No. 3 p. 194.)
Authenticity and due execution is the dominant requirements to be fulfilled when such will is submitted to the courts for
allowance. For that purpose the testimony of one of the subscribing witnesses would be sufficient if there is no opposition (Sec.
5, Rule 77). If there is, the three must testify, if available. (Cabang vs. Delfinado, 34 Phil., 291; Tolentino vs. Francisco, 57 Phil.,

131
742). From the testimony of such witnesses (and of other additional witnesses) the court may form its opinion as to the
genuineness and authenticity of the testament, and the circumstances its due execution.
Now, in the matter of holographic wills, no such guaranties of truth and veracity are demanded, since as stated, they need no
witnesses; provided however, that they are "entirely written, dated, and signed by the hand of the testator himself." The law, it
is reasonable to suppose, regards the document itself as material proof of authenticity, and as its own safeguard, since it could
at any time, be demonstrated to be — or not to be — in the hands of the testator himself. "In the probate of a holographic will"
says the New Civil Code, "it shall be necessary that at least one witness who knows the handwriting and signature of the
testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least
three such witnesses shall be required. In the absence of any such witnesses, (familiar with decedent's handwriting) and if the
court deem it necessary, expert testimony may be resorted to."
The witnesses so presented do not need to have seen the execution of the holographic will. They may be mistaken in their
opinion of the handwriting, or they may deliberately lie in affirming it is in the testator's hand. However, the oppositor may
present other witnesses who also know the testator's handwriting, or some expert witnesses, who after comparing the will with
other writings or letters of the deceased, have come to the conclusion that such will has not been written by the hand of the
deceased. (Sec. 50, Rule 123). And the court, in view of such contradictory testimony may use its own visual sense, and decide
in the face of the document, whether the will submitted to it has indeed been written by the testator.
Obviously, when the will itself is not submitted, these means of opposition, and of assessing the evidence are not available. And
then the only guaranty of authenticity3 — the testator's handwriting — has disappeared.
Therefore, the question presents itself, may a holographic will be probated upon the testimony of witnesses who have allegedly
seen it and who declare that it was in the handwriting of the testator? How can the oppositor prove that such document was
not in the testator's handwriting? His witnesses who know testator's handwriting have not examined it. His experts can not
testify, because there is no way to compare the alleged testament with other documents admittedly, or proven to be, in the
testator's hand. The oppositor will, therefore, be caught between the upper millstone of his lack of knowledge of the will or the
form thereof, and the nether millstone of his inability to prove its falsity. Again the proponent's witnesses may be honest and
truthful; but they may have been shown a faked document, and having no interest to check the authenticity thereof have taken
no pains to examine and compare. Or they may be perjurers boldly testifying, in the knowledge that none could convict them of
perjury, because no one could prove that they have not "been shown" a document which they believed was in the handwriting
of the deceased. Of course, the competency of such perjured witnesses to testify as to the handwriting could be tested by
exhibiting to them other writings sufficiently similar to those written by the deceased; but what witness or lawyer would not
foresee such a move and prepare for it? His knowledge of the handwriting established, the witness (or witnesses) could simply
stick to his statement: he has seen and read a document which he believed was in the deceased's handwriting. And the court
and the oppositor would practically be at the mercy of such witness (or witnesses) not only as to the execution, but also as to
the contents of the will. Does the law permit such a situation?
The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of a lost or destroyed will by secondary — evidence
the testimony of witnesses, in lieu of the original document. Yet such Rules could not have contemplated holographic wills
which could not then be validly made here. (See also Sec. 46, Rule 123; Art. 830-New Civil Code.)
Could Rule 77 be extended, by analogy, to holographic wills?
Spanish commentators agree that one of the greatest objections to the holographic will is that it may be lost or stolen4 — an
implied admission that such loss or theft renders it useless..
This must be so, because the Civil Code requires it to be protocoled and presented to the judge, (Art. 689) who shall subscribe it
and require its identity to be established by the three witnesses who depose that they have no reasonable doubt that the will
was written by the testator (Art. 691). And if the judge considers that the identity of the will has been proven he shall order that
it be filed (Art. 693). All these, imply presentation of the will itself. Art. 692 bears the same implication, to a greater degree. It
requires that the surviving spouse and the legitimate ascendants and descendants be summoned so that they may make "any
statement they may desire to submit with respect to the authenticity of the will." As it is universally admitted that the
holographic will is usually done by the testator and by himself alone, to prevent others from knowing either its execution or its
contents, the above article 692 could not have the idea of simply permitting such relatives to state whether they know of the
will, but whether in the face of the document itself they think the testator wrote it. Obviously, this they can't do unless the will
itself is presented to the Court and to them.
Undoubtedly, the intention of the law is to give the near relatives the choice of either complying with the will if they think it
authentic, or to oppose it, if they think it spurious. 5 Such purpose is frustrated when the document is not presented for their
examination. If it be argued that such choice is not essential, because anyway the relatives may oppose, the answer is that their
opposition will be at a distinct disadvantage, and they have the right and privilege to comply with the will, if genuine, a right
which they should not be denied by withholding inspection thereof from them.

132
We find confirmation of these ideas--about exhibition of the document itself--in the decision of the Supreme Court of Spain of
June 5, 1925, which denied protocolization or probate to a document containing testamentary dispositions in the handwriting
of the deceased, but apparently mutilated, the signature and some words having been torn from it. Even in the face of
allegations and testimonial evidence (which was controverted), ascribing the mutilation to the opponents of the will. The
aforesaid tribunal declared that, in accordance with the provision of the Civil Code (Spanish) the will itself, whole and
unmutilated, must be presented; otherwise, it shall produce no effect.
Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del articulo 688 del Codigo civil, que para que
sea valido el testamento olografo debera estar escrito todo el y firmado por testador, con expression del año, mes y dia en que
se otorque, resulta evidente que para la validez y eficacia de esos testamentos, no basta la demostracion mas o menos
cumplida de que cuando se otorgaron se Ilenaron todos esos requisitos, sino que de la expresada redaccion el precepto legal, y
por el tiempo en que el verbo se emplea, se desprende la necesidad de que el documento se encuentre en dichas condiciones en
el momento de ser presentado a la Autoridad competente, para au adveracion y protocolizacion; y como consecuencia
ineludible de ello, forzoso es affirmar que el de autos carece de validez y aficacia, por no estarfirmado por el testador,
cualquiera que sea la causa de la falta de firma, y sin perjuicio de las acciones que puedan ejercitar los perjudicados, bien para
pedir indemnizacion por el perjuicio a la persona culpable, si la hubiere, o su castigo en via criminal si procediere, por constituir
dicha omision un defecto insubsanable . . . .
This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the basis of the Spanish Civil Code
provisions on the matter.6
PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V, ley 15--E depues que los herederos e sus fijos ovieren esta manda,
fasta ... annos muestrenla al obispo de la tierra, o al juez fasta VI meses y el obispo o el juez tomen otros tales tres escritos, que
fuesen fechos por su mano daquel que fizo la manda; e por aquellos escriptos, si semjara la letra de la manda, sea confirmada
la manda. E depues que todo esto fuere connoscido, el obispo o el juez, o otras testimonios confirmen el escripto de la manda
otra vez, y en esta manera vala la manda. (Art. 689, Scaevola--Codigo Civil.)
(According to the Fuero above, the will itself must be compared with specimens of the testators handwriting.)
All of which can only mean: the courts will not distribute the property of the deceased in accordance with his holographic will,
unless they are shown his handwriting and signature.7
Parenthetically, it may be added that even the French Civil Law considers the loss of the holographic will to be fatal. (Planiol y
Ripert, Derecho Civil Frances, traduccion por Diaz Cruz, 1946, Tomo V, page 555).
Taking all the above circumstances together, we reach the conclusion that the execution and the contents of a lost or destroyed
holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will.8
Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this opinion as a Rule of Court for the
allowance of such holographic wills. We hesitate, however, to make this Rule decisive of this controversy, simultaneously with
its promulgation. Anyway, decision of the appeal may rest on the sufficiency, rather the insufficiency, of the evidence presented
by petitioner Fausto E. Gan.
At this point, before proceeding further, it might be convenient to explain why, unlike holographic wills, ordinary wills may be
proved by testimonial evidence when lost or destroyed. The difference lies in the nature of the wills. In the first, the only
guarantee of authenticity is the handwriting itself; in the second, the testimony of the subscribing or instrumental witnesses
(and of the notary, now). The loss of the holographic will entails the loss of the only medium of proof; if the ordinary will is lost,
the subscribing witnesses are available to authenticate.
In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary) deliberately to lie. And then their
lies could be checked and exposed, their whereabouts and acts on the particular day, the likelihood that they would be called
by the testator, their intimacy with the testator, etc. And if they were intimates or trusted friends of the testator they are not
likely to end themselves to any fraudulent scheme to distort his wishes. Last but not least, they can not receive anything on
account of the will.
Whereas in the case of holographic wills, if oral testimony were admissible9 only one man could engineer the fraud this way:
after making a clever or passable imitation of the handwriting and signature of the deceased, he may contrive to let three
honest and credible witnesses see and read the forgery; and the latter, having no interest, could easily fall for it, and in court
they would in all good faith affirm its genuineness and authenticity. The will having been lost — the forger may have purposely
destroyed it in an "accident" — the oppositors have no way to expose the trick and the error, because the document itself is
not at hand. And considering that the holographic will may consist of two or three pages, and only one of them need be signed,
the substitution of the unsigned pages, which may be the most important ones, may go undetected.

133
If testimonial evidence of holographic wills be permitted, one more objectionable feature — feasibility of forgery — would be
added to the several objections to this kind of wills listed by Castan, Sanchez Roman and Valverde and other well-known
Spanish Commentators and teachers of Civil Law.10
One more fundamental difference: in the case of a lost will, the three subscribing witnesses would be testifying to a fact which
they saw, namely the act of the testator of subscribing the will; whereas in the case of a lost holographic will, the witnesses
would testify as to their opinion of the handwriting which they allegedly saw, an opinion which can not be tested in court, nor
directly contradicted by the oppositors, because the handwriting itself is not at hand.
Turning now to the evidence presented by the petitioner, we find ourselves sharing the trial judge's disbelief. In addition to the
dubious circumstances described in the appealed decision, we find it hard to believe that the deceased should show her will
precisely to relatives who had received nothing from it: Socorro Olarte and Primitivo Reyes. These could pester her into
amending her will to give them a share, or threaten to reveal its execution to her husband Ildefonso Yap. And this leads to
another point: if she wanted so much to conceal the will from her husband, why did she not entrust it to her beneficiaries?
Opportunity to do so was not lacking: for instance, her husband's trip to Davao, a few days after the alleged execution of the
will.
In fine, even if oral testimony were admissible to establish and probate a lost holographic will, we think the evidence submitted
by herein petitioner is so tainted with improbabilities and inconsistencies that it fails to measure up to that "clear and distinct"
proof required by Rule 77, sec. 6.11
Wherefore, the rejection of the alleged will must be sustained.
Judgment affirmed, with costs against petitioner.

134
G.R. No. L-58509 December 7, 1982
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA deceased, MARCELA RODELAS, petitioner-
appellant,
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor.
Luciano A. Joson for petitioner-appellant.
Cesar Paralejo for oppositor-appellee.

RELOVA, J.:
This case was certified to this Tribunal by the Court of Appeals for final determination pursuant to Section 3, Rule 50 of the
Rules of Court.
As found by the Court of Appeals:
... On January 11, 1977, appellant filed a petition with the Court of First Instance of Rizal for the probate of the holographic will
of Ricardo B. Bonilla and the issuance of letters testamentary in her favor. The petition, docketed as Sp. Proc. No. 8432, was
opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes Expedita Bonilla Frias and Ephraim Bonilla on the
following grounds:
(1) Appellant was estopped from claiming that the deceased left a will by failing to produce the will within twenty days of the
death of the testator as required by Rule 75, section 2 of the Rules of Court;
(2) The alleged copy of the alleged holographic will did not contain a disposition of property after death and was not intended
to take effect after death, and therefore it was not a will
(3) The alleged hollographic will itself,and not an alleged copy thereof, must be produced, otherwise it would produce no
effect, as held in Gam v. Yap, 104 Phil. 509; and
(4 ) The deceased did not leave any will, holographic or otherwise, executed and attested as required by law.
The appellees likewise moved for the consolidation of the case with another case Sp. Proc. No, 8275). Their motion was granted
by the court in an order dated April 4, 1977.
On November 13, 1978, following the consolidation of the cases, the appellees moved again to dismiss the petition for the
probate of the will. They argued that:
(1) The alleged holographic was not a last will but merely an instruction as to the management and improvement of the schools
and colleges founded by decedent Ricardo B. Bonilla; and
(2) Lost or destroyed holographic wills cannot be proved by secondary evidence unlike ordinary wills.
Upon opposition of the appellant, the motion to dismiss was denied by the court in its order of February 23, 1979.
The appellees then filed a motion for reconsideration on the ground that the order was contrary to law and settled
pronouncements and rulings of the Supreme Court, to which the appellant in turn filed an opposition. On July 23, 1979, the
court set aside its order of February 23, 1979 and dismissed the petition for the probate of the will of Ricardo B. Bonilla. The
court said:
... It is our considered opinion that once the original copy of the holographic will is lost, a copy thereof cannot stand in lieu of
the original.
In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in the matter of holographic wills the law, it is
reasonable to suppose, regards the document itself as the material proof of authenticity of said wills.
MOREOVER, this Court notes that the alleged holographic will was executed on January 25, 1962 while Ricardo B. Bonilla died
on May 13, 1976. In view of the lapse of more than 14 years from the time of the execution of the will to the death of the
decedent, the fact that the original of the will could not be located shows to our mind that the decedent had discarded before
his death his allegedly missing Holographic Will.
Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in which it is contended that the
dismissal of appellant's petition is contrary to law and well-settled jurisprudence.

135
On July 7, 1980, appellees moved to forward the case to this Court on the ground that the appeal does not involve question of
fact and alleged that the trial court committed the following assigned errors:
I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY THEREOF;
II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS DISCARDED BEFORE HIS DEATH THE MISSING
HOLOGRAPHIC WILL;
III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.
The only question here is whether a holographic will which was lost or cannot be found can be proved by means of a
photostatic copy. Pursuant to Article 811 of the Civil Code, probate of holographic wills is the allowance of the will by the court
after its due execution has been proved. The probate may be uncontested or not. If uncontested, at least one Identifying
witness is required and, if no witness is available, experts may be resorted to. If contested, at least three Identifying witnesses
are required. However, if the holographic will has been lost or destroyed and no other copy is available, the will can not be
probated because the best and only evidence is the handwriting of the testator in said will. It is necessary that there be a
comparison between sample handwritten statements of the testator and the handwritten will. But, a photostatic copy or xerox
copy of the holographic will may be allowed because comparison can be made with the standard writings of the testator. In the
case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that "the execution and the contents of a lost or destroyed holographic will
may not be proved by the bare testimony of witnesses who have seen and/or read such will. The will itself must be presented;
otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity." But, in Footnote 8
of said decision, it says that "Perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed or carbon
copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and
tested before the probate court," Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be
admitted because then the authenticity of the handwriting of the deceased can be determined by the probate court.
WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's motion for reconsideration dated August
9, 1979, of the Order dated July 23, 1979, dismissing her petition to approve the will of the late Ricardo B. Bonilla, is hereby SET
ASIDE.
SO ORDERED.

136
G.R. No. L-18788 January 31, 1964
ROMULO LOPEZ, ET AL., plaintiffs-appellants,
vs.
LUIS GONZAGA, ET AL., defendants,
LUIS GONZAGA and ASUNCION GONZAGA, defendants-appellants.
Lakandola G. Lopez and Romulo Lopez for plaintiffs-appellants.
Amalia K. del Rosario for defendants-appellants.
REYES, J.B.L., J.:
Joint and direct appeal by both parties-plaintiffs an parties-defendants from the decision of the Court of First Instance of
Negros Occidental (in its Civil Case No. 5033 to this Supreme Court, because the properties involved a valued at more than
P200,000.00. The appealed decision dismissed the petition of plaintiffs (appellants) for partition and cancellation of titles of
registered lands and ordered them to pay defendants (appellees) P1,000.00 by way of attorney's fees, but refused to award
moral damages in favor of the defendants.
The original petition was filed with the court a quo on 6 October 1958, alleging, among other things, that on Soledad Gonzaga
Vda. de Ferrer died intestate on 11 April 1935 without any issue and leaving real and personal properties worth P400,000.00;
that she was survived by the plaintiffs, who are her nearest of kin, being her brother sisters, nephews, and nieces; that during
the lifetime the deceased, she expressed the wish that as long as her brother, Luis Gonzaga, the principal defendant, was
engaged in his coconut oil experimentation he could use products and rentals of her properties in furtherance his experiments;
that the said scientific venture by said defendant was discontinued when he became totally blind in October, 1955 in view of
which the plaintiffs now ask a partition of the estate and the cancellation of titles of lands allegedly fraudulently transferred by,
and in the name of, the defendant.
The defendant filed a motion to dismiss on the grounds of res judicata and non-inclusion of indispensable parties. The plainttiffs
amended their petition to include the omitted parties. After hearing on the motion to dismiss, the court denied the said
motion. Thereupon, the defendant filed their answer, pleading a denial as to intestacy of deceased, and alleging, among others,
that a will of Soledad Gonzaga Vda. de Ferrer instituted Luis Gonzaga as the sole heir estate, and that the will was duly allowed
and probated.
After trial, the court a quo rendered judgment, a both parties appealed, as aforesaid.
The genuineness of the following documents, and the jurisdiction of the court with respect to them, are not disputed:

REPUBLIC OF THE PHILIPPINES

COURT OF FIRST INSTANCE OF ILOILO
11th Judicial District
December 11, 1958.
TO WHOM IT MAY CONCERN:
This is to certify that according to the records of this office, there is no Expediente No. 2163 entitled Estate of Doña Soledad
Gonzaga Vda. de Ferrer, as all prewar records were burned, lost or destroyed during the World War II.
(Sgd.) CIPRIANO CABALUNA
Clerk of Court.
UNITED STATES OF AMERICA
COMMONWEALTH OF THE PHILIPPINES
COURT OF FIRST INSTANCE OF
OCCIDENTAL NEGROS
18th Judicial District
G.L.R.O. CAD. RECORD NO. 214
LOTS NOS. 414 and 424
CAD. SURVEY OF MANAPLA
x---------------------x
PETITION
Luis Gonzaga y Jesena through the undersigned attorney, to the Honorable Court respectfully follows:

137
That Soledad Gonzaga Vda. de Ferrer is the registered owner of Lots Nos. 414 and 424, Cadastral Survey of Manapla, which
parcel of land are described in Transfer Certificate of Title Nos. 11460 and 13855, respectively.
That Soledad Gonzaga Vda. de Ferrer died on April 11, 1935, and she left all her properties in favor of Luis Gonzaga y Jesena in
her will, which will was probated on May 17, 1935, in the Court of First Instance of Iloilo (Exp. No. 2163, Iloilo).
That the project of partition dated February 3, 1936, (Exp. No. 2163, Iloilo) a copy of which is hereto attached, in which the
petitioner Luis Gonzaga y Jesena is the only heir, was approved by the Honorable Court of Iloilo in its order dated February 8,
1936, a copy of the said order is hereto attached. 1äwphï1.ñët
WHEREFORE, in view of the foregoing, the petitioner respectfully prays the Honorable Court to order the cancellation of
Transfer Certificate of Title Nos. 11460 and 13855, Office of the Register of Deeds of Occidental Negros, wherein Lots Nos. 414
and 424 are described, and in lieu thereof to issue Transfer Certificate of Titles for Lots 414 and 424, Cadastral Survey of
Manapla, Occidental Negros, in favor of Luis Gonzaga y Jesena, single of legal age, Filipino and a resident of Manila, P. I.
Iloilo, Iloilo, for Bacolod, Occ. Neg., P.I. March 11, 1936.
(Sgd.) FRANCISCO S. HORTILLAS
Attorney for the petitioner
2 General Luna, Iloilo Iloilo
I, Francisco S. Hortillas, of legal age, after having been duly sworn, depose and say: That I am the attorney for the petitioner in
the above case, and that all the allegations contained in the foregoing petition are true to the best of my information tion and
belief.
(Sgd.) FRANCISCO HORTILLAS
Subscribed and Sworn to before me this 11th day of March, 1936. He exhibited to me his cedula No. E-1250120, issued at Jaro,
Iloilo, P.I., on January 16, 1936.
(Sgd.) ILLEGIBLE
NOTARY PUBLIC
Until Dec. 31, 1937
Doc. No. 49
Page No. 60
Book No. 1
Series of 1936
The Register of Deeds
Bacolod City, Occ. Negros
Sir:
Please take notice that on Saturday, March 21, 1936, at 8:00 a.m. or soon thereafter as the undersigned may be heard, he will
submit the foregoing petition to this Honorable Court for approval.
(Sgd.) FRANCISCO S. HORTILLAS
I hereby certify that I have sent a copy of the foregoing petition to the Register of Deeds of Occidental Negros evidenced by the
registry receipt hereto attached.
(Sgd.) FRANCISCO S. HORTILLAS
UNITED STATES OF AMERICA
COMMONWEALTH OF THE PHILIPPINES
COURT OF FIRST INSTANCE OF ILOILO
17th Judicial District
TESTATE PROCEEDINGS OF
THE DECEASED SOLEDAD
GONZAGA VDA. DE FERRER,
LUIS GONZAGA Y JESENA,
Petitioner.
x-------------------------x

138
CIVIL CASE NO. 2163
PETITION FOR ADJUDICATION
The undersigned administrator to the Honorable Court respectfully states:
That the undersigned administrator, Luis Gonzaga y Jesena is the only heir mentioned in the probated will of the late Sra.
Soledad G. Vda. de Ferrer.

TOWN TITLE NO. PROVINCE VALUE

Manapla Trans. Cert. 8433 Occ. Neg. P25,230.00

Manapla Trans. Cert. 11460 Occ. Neg. 5,210.00

Manapla Trans. Cert. 13855 Occ. Neg. 7,310.00

Jaro Trans. Cert. 13051 Iloilo 510.00

Jaro Trans. Cert. 13054 Iloilo 500.00

ACCOUNTS COLLECTIBLE AND CASH

Roman Sopena ........................................................... P1,100.00

Juan Sornito ............................................................... 330.00

Quintin Mejorada and others .................................. 2,800.00

Maria Ledesma and others ...................................... 600.00

and Cash ..................................................................... 1,018.54

That there is a pending civil complaint against the administrator by Consolacion G. de Lopez, et al., Civil Case No. 10321, Court,
of First Instance of Iloilo, demanding payment of the sum of P833.40. The undersigned administrator is willing to file a cash
bond for the sum object of the complaint in case this expediente will be closed before the trial of the Civil Case No. 10321,
Iloilo.
Iloilo, P.I., February 3,1936.
(Sgd.) FRANCISCO S. HORTILLAS
Attorney for the Administrator
2 General Luna, Iloilo.
The Clerk of Court
Iloilo, Iloilo
Sir:
Please include the foregoing petition for adjudication in the calendar for Saturday, February 8, 1936.
(Sgd.) FRANCISCO S. HORTILLAS
A TRUE COPY:
(Sgd.) TELESFORO GEDANG
Deputy Clerk of Court
17th Judicial District
Iloilo, P.I.
ESTADOS UNIDOS DE AMERICA

139
COMMONWEALTH DE FILIPINAS
JUZGADO DE PRIMERA INSTANCIA DE ILOILO
17.0 DISTRITO JUDICIAL
TESTAMENTARIA GONZAGA
Expediente No. 2163
AUTO
Previa prestacion por Luis Gonzaga y Jesena de una fianza por valor de P1,000.00 que tendra por objecto responder al resultado
de la causa civil No. 10321 de este Juzgado, titulada "Consolacion G. de Lopez, et al., demandantes, contra Luis Gonzaga", se
aprueba la cuenta final de fecha enero 29, 1936, asi como el proyecto de particion de fecha 3 del actual. Queda cancelada la
fianza prestada por el administrador en este expediente, y archivado el mismo por terminado.
Asi se ordena.
Iloilo, Iloilo, febrero 8, 1936.
M. BUYSON LAMPA
Juez
A TRUE COPY:
(Sgd.) TELESFORO GEDANG
Deputy Clerk of Court
17th Judicial District
Iloilo, P. I.
ESTADOS UNIDOS DE AMERICA
MANCOMUNIDAD DE FILIPINAS
JUZGADO DE PRIMERA INSTANCIA DE
NEGROS OCCIDENTAL
18.o Distrito Judicial

Expediente Cadastral No. 26

G.L.R.O. Cad Rec.
EL GOBIERNO DE LAS ISLAS
No. 214
FILIPINAS
Lotes Nos. 414 y424
Solicitante.
CATASTRO DE MANAPLA
x--------------------x

AUTO
Vista la peticion del solicitante Sr. Luiz Gonzaga y Jesena, de fecha 11 de marzo de 1936, el Juzgado, hallando de misma bien
fundada;
Por el presente, ordena la cancelacion de los certificados de transferencia de titulo Nos. 11460 y 13855, sobre los lotes Nos. 414
y 424, respectivamente, del Catastro de Manapla, Negros Occidental, y la expedicion de otros a favor de Luis Gonzaga y Jesena,
filipino, mayor de edad, soltero y vecino de la ciuda de Manila, I.F., haciendos constar en los certificados que se han de expedir
todos los gravamenes que existen el los certificados de transferencia Nos. 11460 y 13855.
Asi se ordena.
Bacolod, Occ. Negros, 21 de marzo, 1936.
(FDO.) BRAULIO BAJASA
Juez
ESTADOS UNIDOS DE AMERICA
MANCOMUNIDAD DE FILIPINAS
JUZGADO DE PRIMERA INSTANCIA
DE NEGROS OCCIDENTAL
18.o Distrito Judicial

EL GOBIERNO DE LAS Exp. de Reg. No. 72

ISLAS FILIPINAS, G.L.R.O. Rec. No. 10822

140
 Solicitante, Lote No. 313
LUIS GONZAGA Y JESENA, MANAPLA
Mocionante.
x----------------x

AUTO
Vista y considerada la motion del solicitante Luis Gonzaga y Jesena, de Fecha 11 de marzo de 1936, el Juzgado, hallando la
misma bien fundada;
Por el presents, ordena la cancelacion del certificado de transferencia de titulo No. 8422 sobre el Lote No. 313 del catastro de
Manapla, Negros Occidental, y la expedicion de otro a favor de Luis Gonzaga y Jesena, filipino, mayor de edad; soltero y vecino
de la ciudad de Manila. I.F., haciendose constar en al certificado que se ha de expedir todos los gravamente que existen en al
certificado de transferencia cancelado, se tuviere alguno.
Asi se ordena.
Bacolod, Occidental Negros, 21 de Marzo, 1936.
(Sgd.) BRAULIO BEJASA
Juez
BB/spm.
Received the foregoing document at 9:00 A.M. on May 7, 1936,and registered under Act 496 as follows:
Day Book, Vol. 6, Entry No. 49684
Inscribed on pages 101 of Book Vol. 87 of Transfer Certificate of Title as Certificate of 21151.
Bacolod, Occ. Negros, May 7, 1936
(Sgd.) MARIANO COREOVA
Register of Deeds
ESTADOS UNIDOS DE AMERICA
MANCOMUNIDAD DE FILIPINAS
JUZGADO DE PRIMERA INSTANCIA DE ILOILO
17.o Distrito Judicial
G.L.R.O. RECORD NO. 9959
LOTES NOS. 1129-B y 1129-C
SITUADO EN EL MUNICIPIO DE
JARO
x----------------x
AUTO
Vista la peticion de Luis Gonzaga y Jesena cancelacion de los Certificados de Transferencia de titulo numeros 10051 y 13054 por
las razones expuestas en la misma, y encontrando el Juzgado la misma bien fundada, por la presente ordena el Registrado de
Titulos de la Provincial del Iloilo cancela los Certificados de Transferencia de Titulos numeros 10051 y 13054 y expiden otros en
su lugar a nombre de Luis Gonzaga y Jesen soltero, mayor de edad, filipino y vecino de Manila, P.I.
Asi se ordena.
Iloilo, Iloilo, Marzo 25, 1936
M. BUYSON LAMP
Juez

As a witness, the defendant's counsel, Atty. Amelia del Rosario, testified that the aforequoted records of the probate court of
Iloilo were discovered by her among the records of the cadastral court in Negros Occidental.
Due to the destruction of the court and property record of Iloilo as a result of the last war, as attested by the Clerk of Court, no
will or probate order was produce and neither were attested copies registered with the Office of the Register of Deeds of
Negros Occidental leave little room for doubt that Doña Soledad Gonzaga died leaving a will instituting her nephew the
appellee Luis Gonzaga y Jesena, as her sole testamentary heir, in default forced heirs; that said will was duly probated in 1935
or 1936 by the Court of First Instance of Iloilo in its Special Proceedings No. 2163; that the net residue of the estate was
adjudicated by the court of said appellee, subject to a claim of Consolacion G. de Lopez for P1,000.00 (Exh. 2); and that,
thereafter, upon sworn petition of appellee, through his counsel, Francisco S. Hortillas, the Court First Instance of Iloilo (Exhibit

141
22) and Occidental Negros (Exhibit 3) ordered the respective Provincial Registers of Deeds to cancel the Certificates of Title
standing then in the name of the deceased Soledad Gonzaga and lieu thereof to issue new certificates in the name of apellee
Luis Gonzaga y Jesena, as admittedly was done. In the course of the years prior to the institution of this case in 1958, appellee
held the properties and dealt with them as sole owner, leasing, encumbering, and selling some them.
We can not fail to be impressed by the statement of attorney Francisco Hortillas, averring under with in clear and unmistakable
terms, not only once, but twice before the Courts of First Instance of Iloilo and Negros (Exhibits 1 and 9), that the deceased
Doña Soledad, in her probated will, made Luis Gonzaga y Jesena the sole heir to her properties. These manifestations are nigh
conclusive, for the reason that attorney Hortillas was himself married to Monserrat Gonzaga, a sister of Soledad, who would
have been one of the latter's heirs intestate had it not been for the testament in favor of the appellee. It taxes credulity beyond
all reason to imply (as appellants do) that attorney Hortillas, violating family ties and affection, conspired with appellee to
deprive his own wife and children (now some of the present appellants) of the lawful share by intestacy in the properties left by
Doña Soledad if it were untrue that the latter had duly and properly bequeathed all her estate to appellee Luis Gonzaga. The
authenticity of the sworn petitions of the late attorney Hortillas (Exhibits a and 1) are not impugned, and they were actually
acted upon and granted by the two courts of first instance to which he addressed his petitions.
Coupled with his undoubted possession as owner and with his own dominical acts exercised over the former properties of Doña
Soledad Gonzaga for twenty-two years (1936-1958), the exhibits aforementioned constitute practically conclusive proof of the
truth of appellee's defenses, as found by the court below, despite the destruction of the original will and decree of probate.
Plaintiffs-appellants, however, assail the trial court is admission of the said court records on the ground that defendant-
appellee failed to lay proper basis, or predicate, for their admission. Granting that the original will was destroyed with the court
records in the last war, it is averred that appellee was duty-bound to produce the copy that, according to appellee's deposition,
was in the custody of Encarnacion Gonzaga, as well as that left with attorney Hortillas. The argument is misleading. There is no
proof that copies of the will ever existed other than the one burned while in appellee's possession (Dep. p. 23). Page 24 of the
appellee's deposition is to the effect that —
My sister Encarnacion had the custody of the will because she was the one who was at the beside of my sister (referring to the
testatrix Doña Soledad);
but by "the will" was obviously meant the one signed by the testatrix and the witnesses, not a copy.
Similarly, the witness was asked,
When you filed this petition through your lawyer for the probate of the will, am I correct that you also presented a copy of the
will?;
to which question the witness answered,
The original was the one submitted.
From this answer, it certainly can not be inferred that Attorney Hortillas kept a copy of the original submitted to the court.
Neither do we see that appellee was bound to call, or, account, for the witnesses to the testament. He was not trying to show
that the will complied with the statutory requirements, but that the will had been admitted to probate and of course, the
probate decree conclusively established the due execution.
Appellants contend that if it were true that the will constituted Luis Gonzaga as sole heir, he had no need to ask the court for an
order of adjudication. There is no merit to this contention. The order of adjudication is the judicial recognition that in
appointing Luis as her only heir the testatrix did not contravene the law, and that the heir was in no way disqualified to inherit;
just as a final order admitting a will to probate concludes all and sundry from thereafter contending that statutory formal
requirements have not been observed in executing the testament. Instead of contradicting the testamentary institution of heir,
the order of adjudication confirms it in this case. It may well be noted, in passing, that the order of February 8, 1936 (Exhibit 1
or B) speaks of approval of a "project of partition", while the petition of January 29, 1936 referred to therein spoke of an order
of adjudication to a single heir. Since the order made evident reference to the petition of January 29, we agree with the court
below that the difference in terminology was an inadvertent mistake. Anyway, appellants do not claim under the will or the
partition; their theory is that Doña Soledad Gonzaga died intestate.
The failure of the defendant, Luis Gonzaga, to file with the Register of Deeds a certified copy of his letters of administration and
the will, as provided in Section 90 of Act 496, and to record the attested copies of the will and of the allowance thereof by the
court under Section 624 of Act 190, does not negate the validity of the judgment or decree of probate nor the rights of the
devisee under the will. Section 90 of Act 496 refers to the dealings with registered lands by an executor or administrator; and
while Luis Gonzaga was an administrator, this is beside the point, because his dealings with the lands, if any, during his tenure
as an administrator are not here in question. That the defendant sought judicial orders to effect the transfers to his name of the

142
certificates of title after the will was probated, and succeeded in having them so transferred, are not "dealings" with the
property as administrator under section 90 of the Registration Act. The defendant sought and obtained the change in title in his
own behalf and capacity. Although the step taken is not exactly what Section 624 of Act 190 directs, the same purpose was
achieved — that of notice to all strangers of the cause and nature of the transfers; and it does not appear that anyone was
prejudiced by the defect in registration complained of. At any rate, the recording of the judicial orders sufficed as notice to
interested parties, and was substantial compliance with the required recording of the will itself. No one faced by the recorded
documents could ignore the reference therein to the probated testament; and the rule is that knowledge of what might have
been revealed by proper inquiry is imputable to the inquirer (cf. Emas vs. De Zuzuarregui, 53 Phil. 197, 204).
As to the fact that Luis Gonzaga paid the inheritance taxes, since by law, no delivery of properties can be made importance. It is
usual for an Administrator to pay these taxes, since by law, no delivery of properties can be made to the heirs until and unless
the inheritance taxes are paid [Internal Revenue Code, section 95 (c)].
The contention that defendant-appellee, having been appointed Administrator, must be deemed a trustee up to the present is
infantile. In the first place, no administration could continue to exist after the order of February 8, 1936 had approved the final
account, adjudicate the property to the only heir, cancelled the bond of the administrator, and ordered the case "archivado el
mismo por terminado". No proof exists that the proceedings were reopened. Secondly, the transfer of the certificates title to
Luis Gonzaga's own name in 1936 would constitute an open and clear repudiation of any trust, and the lapse of more than
twenty years' open and adverse possession as owner would certainly suffice to vest title by prescription in the appellee, since
appellants, who knew of the death of Doña Soledad in 1935, never made any move to require Luis to reconvey the property, or
any part thereof. The explanation that Doña Soledad Gonzaga had express the wish that all the income should go to Luis while
conducted experimental studies on coconut products wholly unconvincing as an excuse for the laches; his right to the income
could not have blocked a partition of capital assets among appellants, if they had been at entitled to them.
That some of the plaintiffs were denied their day in court is incredible, since all the plaintiffs were represented by counsel
Vicente Delfin, who claimed, and is presumed, to have been authorized to appear in their behalf, and did appear for them from
the inception of the case after the lower court's decision was rendered. The authority of said counsel was never questioned
until the verse decision was rendered by the court below; and complainant's failure to appear by themselves, or by counsel,
prior to the judgment is mute but eloquent proof that their allegation that Delfin was not their attorney but a last minute
attempt to escape the adverse effect the appealed decision, a maneuver that deserves no consideration.
Coming to the defendants' appeal: It is grounded the disallowance of attorney's fees, expense, and moral damages. The lower
court granted only P1,000.00 for attorney's fees, but the defendants urge that the amount should be P41,000.00, based on an
agreement of P1,000.00 Plus 10% of the value of the properties if the case is decided in their favor. The other expenses refer to
transportation, board and lodging, stenographic notes, photostatic copies of exhibits, securing documents, and taking of
deposition in the sum of P1,205.00. Moral damages asked is P100,000.00.
The award of attorney's fees against the adverse party is essentially discretionary with the trial court (Francisco vs. GSIS, L-
18287, 30 March 1963), and, in the absence of an abuse of discretion, the same should not be disturbed. The other expenses,
unless recoverable as judicial costs, cannot be allowed because the complaint, although unmeritorious, is not clearly
unfounded; moral damages, likewise, are not allowable because the suit is not a malicious prosecution under No. 8 of Article
2219 of the Civil Code. The issue is one primarily addressed to the discretion of the court below, which we are not inclined to
disturb.
FOR THE FOREGOING REASONS, the appealed decision is hereby affirmed, with costs against the plaintiffs-appellants.

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G.R. No. L-26317 January 29, 1927
Estate of Miguel Mamuyac, deceased.
FRANCISCO GAGO, petitioner-appellant,
vs.
CORNELIO MAMUYAC, AMBROSIO LARIOSA,
FELICIANA BAUZON, and CATALINA MAMUYAC, opponents-appellees.
Nicanor Tavora for appellant.
Jose Rivera for appellees.
JOHNSON, J.:
The purpose of this action was to obtain the probation of a last will and testament of Miguel Mamuyac, who died on the 2d day
of January, 1922, in the municipality of Agoo of the Province of La Union. It appears from the record that on or about the 27th
day of July, 1918, the said Miguel Mamuyac executed a last will and testament (Exhibit A). In the month of January, 1922, the
said Francisco Gago presented a petition in the Court of First Instance of the Province of La Union for the probation of that will.
The probation of the same was opposed by Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac
(civil cause No. 1144, Province of La Union). After hearing all of the parties the petition for the probation of said will was denied
by the Honorable C. M. Villareal on the 2d day of November, 1923, upon the ground that the deceased had on the 16th day of
April, 1919, executed a new will and testament.
On the 21st day of February, 1925, the present action was commenced. Its purpose was to secure the probation of the said will
of the 16th day of April, 1919 (Exhibit 1). To said petition Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina
Mamuyac presented their oppositions, alleging (a) that the said will is a copy of the second will and testament executed by the
said Miguel Mamuyac; (b) that the same had been cancelled and revoked during the lifetime of Miguel Mamuyac and (c) that
the said will was not the last will and testament of the deceased Miguel Mamuyac.
Upon the issue thus presented, the Honorable Anastacio R. Teodoro, judge, after hearing the respective parties, denied the
probation of said will of April 16, 1919, upon the ground that the same had been cancelled and revoked in the year 1920. Judge
Teodoro, after examining the evidence adduced, found that the following facts had been satisfactorily proved:
That Exhibit A is a mere carbon of its original which remained in the possession of the deceased testator Miguel Mamuyac, who
revoked it before his death as per testimony of witness Jose Fenoy, who typed the will of the testator on April 16, 1919, and
Carlos Bejar, who saw on December 30, 1920, the original Exhibit A (will of 1919) actually cancelled by the testator Miguel
Mamuyac, who assured Carlos Bejar that inasmuch as he had sold him a house and the land where the house was built, he had
to cancel it (the will of 1919), executing thereby a new testament. Narcisa Gago in a way corroborates the testimony of Jose
Fenoy, admitting that the will executed by the deceased (Miguel Mamuyac) in 1919 was found in the possession of father
Miguel Mamuyac. The opponents have successfully established the fact that father Miguel Mamuyac had executed in 1920
another will. The same Narcisa Gago, the sister of the deceased, who was living in the house with him, when cross-examined by
attorney for the opponents, testified that the original Exhibit A could not be found. For the foregoing consideration and for the
reason that the original of Exhibit A has been cancelled by the deceased father Miguel Mamuyac, the court disallows the
probate of Exhibit A for the applicant." From that order the petitioner appealed.
The appellant contends that the lower court committed an error in not finding from the evidence that the will in question had
been executed with all the formalities required by the law; that the same had been revoked and cancelled in 1920 before his
death; that the said will was a mere carbon copy and that the oppositors were not estopped from alleging that fact.
With reference to the said cancellation, it may be stated that there is positive proof, not denied, which was accepted by the
lower court, that will in question had been cancelled in 1920. The law does not require any evidence of the revocation or
cancellation of a will to be preserved. It therefore becomes difficult at times to prove the revocation or cancellation of wills. The
fact that such cancellation or revocation has taken place must either remain unproved of be inferred from evidence showing
that after due search the original will cannot be found. Where a will which cannot be found is shown to have been in the
possession of the testator, when last seen, the presumption is, in the absence of other competent evidence, that the same was
cancelled or destroyed. The same presumption arises where it is shown that the testator had ready access to the will and it
cannot be found after his death. It will not be presumed that such will has been destroyed by any other person without the
knowledge or authority of the testator. The force of the presumption of cancellation or revocation by the testator, while
varying greatly, being weak or strong according to the circumstances, is never conclusive, but may be overcome by proof that
the will was not destroyed by the testator with intent to revoke it.
In view of the fat that the original will of 1919 could not be found after the death of the testator Miguel Mamuyac and in view
of the positive proof that the same had been cancelled, we are forced to the conclusion that the conclusions of the lower court
are in accordance with the weight of the evidence. In a proceeding to probate a will the burden of proofs is upon the proponent

144
clearly to establish not only its execution but its existence. Having proved its execution by the proponents, the burden is on the
contestant to show that it has been revoked. In a great majority of instances in which wills are destroyed for the purpose of
revoking them there is no witness to the act of cancellation or destruction and all evidence of its cancellation perishes with the
testator. Copies of wills should be admitted by the courts with great caution. When it is proven, however, by proper testimony
that a will was executed in duplicate and each copy was executed with all the formalities and requirements of the law, then the
duplicate may be admitted in evidence when it is made to appear that the original has been lost and was not cancelled or
destroyed by the testator. (Borromeo vs. Casquijo, G.R. No. L-26063.)1
After a careful examination of the entire record, we are fully persuaded that the will presented for probate had been cancelled
by the testator in 1920. Therefore the judgment appealed from is hereby affirmed. And without any finding as to costs, it is so
ordered.

145
G.R. No. 110427 February 24, 1997
The Incompetent, CARMEN CAÑIZA, represented by her legal guardian, AMPARO EVANGELISTA, petitioner,
vs.
COURT OF APPEALS (SPECIAL FIRST DIVISION), PEDRO ESTRADA and his wife, LEONORA ESTRADA, respondents.

NARVASA, C.J.:
On November 20, 1989, being then ninety-four (94) years of age, Carmen Cañiza, a spinster, a retired pharmacist, and former
professor of the College of Chemistry and Pharmacy of the University of the Philippines, was declared incompetent by
judgment1 of the Regional Trial Court of Quezon City, Branch 107,2 in a guardianship proceeding instituted by her niece,
Amparo A. Evangelista.3 She was so adjudged because of her advanced age and physical infirmities which included cataracts in
both eyes and senile dementia. Amparo A. Evangelista was appointed legal guardian of her person and estate.
Cañiza was the owner of a house and lot at No. 61 Tobias St., Quezon City. On September 17, 1990, her guardian Amparo
Evangelista commenced a suit in the Metropolitan Trial Court (MetroTC) of Quezon City (Branch 35) to eject the spouses Pedro
and Leonora Estrada from said premises.4 The complaint was later amended to identify the incompetent Cañiza as plaintiff,
suing through her legal guardian, Amparo Evangelista.
The amended Complaint5 pertinently alleged that plaintiff Cañiza was the absolute owner of the property in question, covered
by TCT No. 27147; that out of kindness, she had allowed the Estrada Spouses, their children, grandchildren and sons-in-law to
temporarily reside in her house, rent-free; that Cañiza already had urgent need of the house on account of her advanced age
and failing health, "so funds could be raised to meet her expenses for support, maintenance and medical treatment;" that
through her guardian, Cañiza had asked the Estradas verbally and in writing to vacate the house but they had refused to do so;
and that "by the defendants' act of unlawfully depriving plaintiff of the possession of the house in question, they . . (were)
enriching themselves at the expense of the incompetent, because, while they . . (were) saving money by not paying any rent for
the house, the incompetent . . (was) losing much money as her house could not be rented by others." Also alleged was that the
complaint was "filed within one (1) year from the date of of first letter of demand dated February 3, 1990."
In their Answer with Counterclaim, the defendants declared that they had been living in Cañiza's house since the 1960's; that in
consideration of their faithful service they had been considered by Cañiza as her own family, and the latter had in fact executed
a holographic will on September 4, 1988 by which she "bequeathed" to the Estradas the house and lot in question.
Judgment was rendered by the MetroTC on April 13, 1992 in Cañiza's favor,6 the Estradas being ordered to vacate the premises
and pay Cañiza P5,000.00 by way of attorney's fees.
But on appeal,8 the decision was reversed by the Quezon City Regional Trial Court, Branch 96.9 By judgment rendered on
October 21, 1992, 10 the RTC held that the "action by which the issue of defendants' possession should be resolved is accion
publiciana, the obtaining factual and legal situation . . demanding adjudication by such plenary action for recovery of
possession cognizable in the first instance by the Regional Trial Court."
Cañiza sought to have the Court of Appeals reverse the decision of October 21, 1992, but failed in that attempt. In a decision 11
promulgated on June 2, 1993, the Appellate Court 12 affirmed the RTC's judgment in toto. It ruled that (a) the proper remedy
for Cañiza was indeed an accion publiciana in the RTC, not an accion interdictal in the MetroTC, since the "defendants have not
been in the subject premises as mere tenants or occupants by tolerance, they have been there as a sort of adopted family of
Carmen Cañiza," as evidenced by what purports to be the holographic will of the plaintiff; and (b) while "said will, unless and
until it has passed probate by the proper court, could not be the basis of defendants' claim to the property, . . it is indicative of
intent and desire on the part of Carmen Cañiza that defendants are to remain and are to continue in their occupancy and
possession, so much so that Cañiza's supervening incompetency can not be said to have vested in her guardian the right or
authority to drive the defendants out." 13
Through her guardian, Cañiza came to this Court praying for reversal of the Appellate Court's judgment. She contends in the
main that the latter erred in (a) holding that she should have pursued an accion publiciana, and not an accion interdictal; and in
(b) giving much weight to "a xerox copy of an alleged holographic will, which is irrelevant to this case." 14
In the responsive pleading filed by them on this Court's requirement, 15 the Estradas insist that the case against them was
really not one of unlawful detainer; they argue that since possession of the house had not been obtained by them by any
"contract, express or implied," as contemplated by Section 1, Rule 70 of the Rules of Court, their occupancy of the premises
could not be deemed one "terminable upon mere demand (and hence never became unlawful) within the context of the law."
Neither could the suit against them be deemed one of forcible entry, they add, because they had been occupying the property

146
with the prior consent of the "real owner," Carmen Cañiza, which "occupancy can even ripen into full ownership once the
holographic will of petitioner Carmen Cañiza is admitted to probate." They conclude, on those postulates, that it is beyond the
power of Cañiza's legal guardian to oust them from the disputed premises.
Carmen Cañiza died on March 19, 1994, 16 and her heirs — the aforementioned guardian, Amparo Evangelista, and Ramon C.
Nevado, her niece and nephew, respectively — were by this Court's leave, substituted for her. 17
Three issues have to be resolved: (a) whether or not an ejectment action is the appropriate judicial remedy for recovery of
possession of the property in dispute; (b) assuming desahucio to be proper, whether or not Evangelista, as Cañiza's legal
guardian had authority to bring said action; and (c) assuming an affirmative answer to both questions, whether or not
Evangelista may continue to represent Cañiza after the latter's death.
I
It is axiomatic that what determines the nature of an action as well as which court has jurisdiction over it, are the allegations of
the complaint and the character of the relief sought. 18 An inquiry into the averments of the amended complaint in the Court
of origin is thus in order. 19
The amended Complaint alleges: 20
6. That the plaintiff Carmen Cañiza, is the sole and absolute owner of a house and lot at No. 61 Scout Tobias, Quezon City,
which property is now the subject of this complaint;
xxx xxx xxx
9. That the defendants, their children, grandchildren and sons-in-law, were allowed to live temporarily in the house of plaintiff
Carmen Cañiza, for free, out of her kindness;
10. That the plaintiff, through her legal guardian, has duly notified the defendants, for them to vacate the said house, but the
two (2) letters of demand were ignored and the defendants refused to vacate the same. . .
11. That the plaintiff, represented by her legal guardian, Amparo Evangelista, made another demand on the defendants for
them to vacate the premises, before Barangay Captain Angelina A. Diaz of Barangay Laging Handa, Quezon City, but after two
(2) conferences, the result was negative and no settlement was reached. A photocopy of the Certification to File Action dated
July 4, 1990, issued by said Barangay Captain is attached, marked Annex "D" and made an integral part hereof;
12. That the plaintiff has given the defendants more than thirty (30) days to vacate the house, but they still refused to vacate
the premises, and they are up to this time residing in the said place;
13. That this complaint is filed within one (1) year from the date of first letter of demand dated February 3, 1990 (Annex "B")
sent by the plaintiff to the defendants, by her legal guardian — Amparo Evangelista;
14. By the defendants' act of unlawfully depriving the plaintiff of the possession of the house in question, they are enriching
themselves at the expense of the incompetent plaintiff because, while they are saving money by not paying any rent for the
house, the plaintiff is losing much money as her house could not be rented by others;
15. That the plaintiff's health is failing and she needs the house urgently, so that funds could be raised to meet her expenses for
her support, maintenance and medical treatment;
16. That because of defendants' refusal to vacate the house at No. 61 Scout Tobias, Quezon City, the plaintiff, through her legal
guardian, was compelled to go to court for justice, and she has to spend P10,000.00 as attorney's fees.
Its prayer 21 is quoted below:
WHEREFORE, in the interest of justice and the rule of law, plaintiff, Carmen Cañiza, represented by her legal guardian, Amparo
Evangelista, respectfully prays to this Honorable Court, to render judgment in favor of plaintiff and against the defendants as
follows:
1. To order the defendants, their children, grandchildren, sons-in-law and other persons claiming under them, to vacate the
house and premises at No. 6 1 Scout Tobias, Quezon City, so that its possession can be restored to the plaintiff Carmen Cañiza;
and
2. To pay attorney's fees in the amount of P10,000.00;
3. To pay the costs of the suit.
In essence, the amended complaint states:

147
1) that the Estradas were occupying Cañiza's house by tolerance — having been "allowed to live temporarily . . (therein) for
free, out of . . (Cañiza's) kindness;"
2) that Cañiza needed the house "urgently" because her "health . . (was) failing and she . . (needed) funds . . to meet her
expenses for her support, maintenance and medical treatment;"
3) that through her general guardian, Cañiza requested the Estradas several times, orally and in writing, to give back possession
of the house;
4) that the Estradas refused and continue to refuse to give back the house to Cañiza, to her continuing prejudice; and
5) that the action was filed within one (1) year from the last demand to vacate.
Undoubtedly, a cause of action for desahucio has been adequately set out. It is settled that in an action for unlawful detainer, it
suffices to allege that the defendant is unlawfully withholding possession from the plaintiff is deemed sufficient, 22 and a
complaint for unlawful detainer is sufficient if it alleges that the withholding of possession or the refusal to vacate is unlawful
without necessarily employing the terminology of the law. 23
The Estradas' first proffered defense derives from a literal construction of Section 1, Rule 70 of the Rules of Court which inter
alia authorizes the institution of an unlawful detainer suit when "the possession of any land or building is unlawfully withheld
after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied." They contend
that since they did not acquire possession of the property in question "by virtue of any contract, express or implied" — they
having been, to repeat, "allowed to live temporarily . . (therein) for free, out of . . (Cañiza's) kindness" — in no sense could there
be an "expiration or termination of . . (their) right to hold possession, by virtue of any contract, express or implied." Nor would
an action for forcible entry lie against them, since there is no claim that they had "deprived (Cañiza) of the possession of . . (her
property) by force, intimidation, threat, strategy, or stealth.
The argument is arrant sophistry. Cañiza's act of allowing the Estradas to occupy her house, rent-free, did not create a
permanent and indefeasible right of possession in the latter's favor. Common sense, and the most rudimentary sense of
fairness clearly require that that act of liberality be implicitly, but no less certainly, accompanied by the necessary burden on
the Estradas of returning the house to Cañiza upon her demand. More than once has this Court adjudged that a person who
occupies the land of another at the latter's tolerance or permission without any contract between them is necessarily bound by
an implied promise that he will vacate upon demand, failing which a summary action for ejectment is the proper remedy
against him. 24 The situation is not much different from that of a tenant whose lease expires but who continues in occupancy
by tolerance of the owner, in which case there is deemed to be an unlawful deprivation or withholding of possession as of the
date of the demand to vacate. 25 In other words, one whose stay is merely tolerated becomes a deforciant illegally occupying
the land or property the moment he is required to leave. 26 Thus, in Asset Privatization Trust vs. Court of Appeals, 27 where a
company, having lawfully obtained possession of a plant upon its undertaking to buy the same, refused to return it after failing
to fulfill its promise of payment despite demands, this Court held that "(a)fter demand and its repudiation, . . (its) continuing
possession . . became illegal and the complaint for unlawful detainer filed by the
. . (plant's owner) was its proper remedy.
It may not be amiss to point out in this connection that where there had been more than one demand to vacate, the one-year
period for filing the complaint for unlawful detainer must be reckoned from the date of the last demand, 28 the reason being
that the lessor has the option to waive his right of action based on previous demands and let the lessee remain meanwhile in
the premises. 29 Now, the complaint filed by Cañiza's guardian alleges that the same was "filed within one (1) year from the
date of the first letter of demand dated February 3, 1990." Although this averment is not in accord with law because there is in
fact a second letter of demand to vacate, dated February 27, 1990, the mistake is inconsequential, since the complaint was
actually filed on September 17, 1990, well within one year from the second (last) written demand to vacate.
The Estradas' possession of the house stemmed from the owner's express permission. That permission was subsequently
withdrawn by the owner, as was her right; and it is immaterial that the withdrawal was made through her judicial guardian, the
latter being indisputably clothed with authority to do so. Nor is it of any consequence that Carmen Cañiza had executed a will
bequeathing the disputed property to the Estradas; that circumstance did not give them the right to stay in the premises after
demand to vacate on the theory that they might in future become owners thereof, that right of ownership being at best
inchoate, no transfer of ownership being possible unless and until the will is duly probated.
Thus, at the time of the institution of the action of desahucio, the Estradas had no legal right to the property, whether as
possessors by tolerance or sufferance, or as owners. They could not claim the right of possession by sufferance; that had been
legally ended. They could not assert any right of possession flowing from their ownership of the house; their status as owners is
dependent on the probate of the holographic will by which the property had allegedly been bequeathed to them — an event
which still has to take place; in other words, prior to the probate of the will, any assertion of possession by them would be
premature and inefficacious.

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In any case, the only issue that could legitimately be raised under the circumstances was that involving the Estradas' possession
by tolerance, i.e., possession de facto, not de jure. It is therefore incorrect to postulate that the proper remedy for Cañiza is not
ejectment but accion publiciana, a plenary action in the RTC or an action that is one for recovery of the right to possession de
jure.
II
The Estradas insist that the devise of the house to them by Cañiza clearly denotes her intention that they remain in possession
thereof, and legally incapacitated her judicial guardian, Amparo Evangelista, from evicting them therefrom, since their ouster
would be inconsistent with the ward's will.
A will is essentially ambulatory; at any time prior to the testator's death, it may be changed or revoked; 30 and until admitted
to probate, it has no effect whatever and no right can be claimed thereunder, the law being quite explicit: "No will shall pass
either real or personal property unless it is proved and allowed in accordance with the Rules of Court" (ART. 838, id.). 31 An
owner's intention to confer title in the future to persons possessing property by his tolerance, is not inconsistent with the
former's taking back possession in the meantime for any reason deemed sufficient. And that in this case there was sufficient
cause for the owner's resumption of possession is apparent: she needed to generate income from the house on account of the
physical infirmities afflicting her, arising from her extreme age.
Amparo Evangelista was appointed by a competent court the general guardian of both the person and the estate of her aunt,
Carmen Cañiza. Her Letters of Guardianship 32 dated December 19, 1989 clearly installed her as the "guardian over the person
and properties of the incompetent CARMEN CANIZA with full authority to take possession of the property of said incompetent in
any province or provinces in which it may be situated and to perform all other acts necessary for the management of her
properties . . " 33 By that appointment, it became Evangelista's duty to care for her aunt's person, to attend to her physical and
spiritual needs, to assure her well-being, with right to custody of her person in preference to relatives and friends. 34 It also
became her right and duty to get possession of, and exercise control over, Cañiza's property, both real and personal, it being
recognized principle that the ward has no right to possession or control of his property during her incompetency. 35 That right
to manage the ward's estate carries with it the right to take possession thereof and recover it from anyone who retains it, 36
and bring and defend such actions as may be needful for this purpose. 37
Actually, in bringing the action of desahucio, Evangelista was merely discharging the duty to attend to "the comfortable and
suitable maintenance of the ward" explicitly imposed on her by Section 4, Rule 96 of the Rules of Court, viz.:
Sec. 4. Estate to be managed frugally, and proceeds applied to maintenance of ward. — A guardian must manage the estate of
his ward frugally and without waste, and apply the income and profits thereof, so far as maybe necessary, to the comfortable
and suitable maintenance of the ward and his family, if there be any; and if such income and profits be insufficient for that
purpose, the guardian may sell or encumber the real estate, upon being authorized by order to do so, and apply to such of the
proceeds as may be necessary to such maintenance.
Finally, it may be pointed out in relation to the Estradas's defenses in the ejectment action, that as the law now stands, even
when, in forcible entry and unlawful detainer cases, the defendant raises the question of ownership in his pleadings and the
question of possession cannot be resolved without deciding the issue of ownership, the Metropolitan Trial Courts, Municipal
Trial Courts, and Municipal Circuit Trial Courts nevertheless have the undoubted competence to resolve "the issue of ownership
. . only to determine the issue of possession." 38
III
As already stated, Carmen Cañiza passed away during the pendency of this appeal. The Estradas thereupon moved to dismiss
the petition, arguing that Cañiza's death automatically terminated the guardianship, Amaparo Evangelista lost all authority as
her judicial guardian, and ceased to have legal personality to represent her in the present appeal. The motion is without merit.
While it is indeed well-established rule that the relationship of guardian and ward is necessarily terminated by the death of
either the guardian or the ward, 39 the rule affords no advantage to the Estradas. Amparo Evangelista, as niece of Carmen
Cañiza, is one of the latter's only two (2) surviving heirs, the other being Cañiza's nephew, Ramon C. Nevado. On their motion
and by Resolution of this Court 40 of June 20, 1994, they were in fact substituted as parties in the appeal at bar in place of the
deceased, in accordance with Section 17, Rule 3 of the Rules of Court, viz.: 41
Sec. 18. Death of a party. — After a party dies and the claim is not thereby extinguished, the court shall order, upon proper
notice, the legal representative of the deceased to appear and be substituted for the deceased within a period of thirty (30)
days, or within such time as may be granted. If the legal representative fails to appear within said time, the court may order the
opposing party to procure the appointment of a legal representative of the deceased within a time to be specified by the court,
and the representative shall immediately appear for and on behalf of the interest of the deceased. The court charges involved
in procuring such appointment, if defrayed by the opposing party, may be recovered as costs. The heirs of the deceased may be

149
allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court
may appoint guardian ad litem for the minor heirs.
To be sure, an ejectment case survives the death of a party. Cañiza's demise did not extinguish the desahucio suit instituted by
her through her guardian. 42 That action, not being a purely personal one, survived her death; her heirs have taken her place
and now represent her interests in the appeal at bar.
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals promulgated on June 2, 1993 — affirming the
Regional Trial Court's judgment and dismissing petitioner's petition for certiorari — is REVERSED and SET ASIDE, and the
Decision dated April 13, 1992 of the Metropolitan Trial Court of Quezon City, Branch 35, in Civil Case No. 3410 is REINSTATED
and AFFIRMED. Costs against private respondents.
SO ORDERED.

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[G.R. No. 115925. August 15, 2003.]
SPOUSES RICARDO PASCUAL and CONSOLACION SIOSON, petitioners, vs. COURT OF APPEALS and REMEDIOS S. EUGENIO-
GINO, respondents.
Delos Santos Delos Santos & Delos Santos for petitioners.
Virgilio C. Manguera & Associates for private respondent.
SYNOPSIS
Petitioner Consolacion Sioson and respondent Remedios S. Eugenio-Gino are the niece and granddaughter, respectively, of the
late Canuto Sioson. Canuto and 11 other individuals, including his sister Catalina Sioson and his brother Victoriano Sioson, were
co-owners of a parcel of land in Tanza, Navotas, Metro Manila known as Lot 2 of Plan Psu 13245, which had an area of 9,347
square meters and was covered by Original Certificate of Title No. 4207 issued by the Register of Deeds of Rizal. Catalina,
Canuto, and Victoriano each owned an aliquot 10/70 share or 1,335 square meters of Lot 2. On September 26, 1956, Canuto
and Consolacion allegedly executed a Kasulatan ng Bilihang Tuluyan wherein Canuto sold his 10/70 share in Lot 2 in favor of
Consolacion. Consolacion immediately took possession of Lot Nos. 2-A and 2-E. She later declared the land for taxation
purposes and paid the corresponding real estate taxes. On February 4, 1988, respondent Remedios S. Eugenio-Gino filed a
complaint against Consolacion and her spouse Ricardo Pascual in the Regional Trial Court of Malabon, Branch 165, for
"Annulment or Cancellation of Transfer Certificate of Title and Damages." Remedios claimed that she is the owner of Lot Nos. 2-
A and 2-E because her aunt Catalina Sioson devised the lots to her in her last will and testament. Consolation and her spouse
sought to dismiss the complaint on the ground of prescription. Petitioners claimed that the basis of the action is fraud, and
Remedios should have filed the action within four years from the registration of Consolacion's title on 28 October 1968, and not
some 19 years later on February 4, 1988. The trial court denied the motion to dismiss. Eventually, the trial court rendered
judgment dismissing the case. On appeal, the appellate court reversed the decision of the trial court. Petitioners filed a petition
before the Court questioning the Court of Appeals' ruling.
The Supreme Court ruled in favor of petitioners and granted the petition. According to the Court, the prescriptive period to
recover property obtained by fraud or mistake, giving rise to an implied trust under Article 1144. Remedios' action is based on
an implied trust under Article 1456 since she claims that the inclusion of the additional 1,335 square meters in TCT No.
(232252) 1321 was without basis. In effect, she asserts that Consolacion acquired the additional 1,335 square meters through
mistake or fraud and thus Consolacion should be considered a trustee of an implied trust for the benefit of the rightful owner of
the property. Clearly, the applicable prescriptive period is ten years under Article 1144 and not four years under Articles 1389
and 1391. The ten-year prescriptive period begins to run from the date the adverse party repudiates the implied trust, which
repudiation takes place when the adverse party registers the land. Remedios filed her complaint on February 4, 1988 or more
than 19 years after Consolacion registered her title over Lot Nos. 2-A and 2-E on 28 October 1968. Unquestionably, Remedios
filed the complaint late warranting its dismissal.
SYLLABUS
1. CIVIL LAW; PRESCRIPTION OF ACTIONS; PRESENT ACTION IS BARRED BY PRESCRIPTION; THE PRESCRIPTIVE PERIOD TO
RECOVER PROPERTY OBTAINED BY FRAUD OR MISTAKE GIVING RISE TO AN IMPLIED TRUST UNDER ARTICLE 1456 OF THE CIVIL
CODE IS TEN YEARS. — REMEDIOS' action is based on an implied trust under Article 1456 since she claims that the inclusion of
the additional 1,335 square meters in TCT No. (232252) 1321 was without basis. In effect, REMEDIOS asserts that
CONSOLACION acquired the additional 1,335 square meters through mistake or fraud and thus CONSOLACION should be
considered a trustee of an implied trust for the benefit of the rightful owner of the property. Clearly, the applicable prescriptive
period is ten years under Article 1144 and not four years under Articles 1389 and 1391. It is now well-settled that the
prescriptive period to recover property obtained by fraud or mistake, giving rise to an implied trust under Article 1456 of the
Civil Code, is ten years pursuant to Article 1144. This ten-year prescriptive period begins to run from the date the adverse party
repudiates the implied trust, which repudiation takes place when the adverse party registers the land. REMEDIOS filed her
complaint on 4 February 1988 or more than 19 years after CONSOLACION registered her title over Lot Nos. 2-A and 2-E on 28
October 1968. Unquestionably, REMEDIOS filed the complaint late thus warranting its dismissal. As the Court recently declared
in Spouses Alfredo v. Spouses Borras, — Following Caro, we have consistently held that an action for reconveyance based on an
implied trust prescribes in ten years. We went further by specifying the reference point of the ten-year prescriptive period as
the date of the registration of the deed or the issuance of the title.
2. ID.; ID.; ID.; ID.; THE COURT'S RULING IN ADDILLE VS. COURT OF APPEALS WHICH IS ANCHORED ON FRAUD IS NOT
APPLICABLE IN CASE AT BAR. — In holding that the action filed by REMEDIOS has not prescribed, the Court of Appeals invoked
this Court's ruling in Adille v. Court of Appeals. In Adille, the Court reckoned the ten-year prescriptive period for enforcing
implied trusts not from registration of the adverse title but from actual notice of the adverse title by the cestui que trust.
However, the. Court, in justifying its deviation from the general rule, explained: [W]hile actions to enforce a constructive trust
prescribes (sic) in ten years, reckoned from the date of the registration of the property, we . . . are not prepared to count the

151
period from such date in this case. We note the petitioner's sub rosa efforts to get hold of the property exclusively for himself
beginning with his fraudulent misrepresentation in his unilateral affidavit of extrajudicial settlement that he is "the only heir and
child of his mother Feliza["] with the consequence that he was able to secure title in his name also. Such commission of specific
fraudulent conduct is absent in the present case. Other than asserting that petitioners are guilty of fraud because they secured
title to Lot Nos, 2-A and 2-E with an area twice bigger than what CANUTO allegedly sold to CONSOLACION, REMEDIOS did not
present any other proof of petitioners' fraudulent conduct akin to Adille. REMEDIOS does not assail the KASULATAN or the
JOINT AFFIDAVIT as fictitious or forged. REMEDIOS even admits the authenticity of Subdivision Plan Psd 34713 as certified by
the Assistant Director of Lands. Moreover, REMEDIOS has not contested petitioners' claim that CANUTO doubled his share in
Lot 2 by acquiring VICTORIANO's share. Plainly, the increase in the area sold from 1,335 square meters. to 2,670 square meters
is a glaring mistake. There is, however, no proof whatsoever that this increase in area was the result of fraud. Allegations of
fraud in actions to enforce implied trusts must be proved by clear and convincing evidence. Adille, which is anchored on fraud,
cannot apply to the present case.
3. ID.; ID.; ID.; ID.; ASSUMING THAT THE TEN-YEAR PRESCRIPTIVE PERIOD BEGINS TO RUN ONLY UPON ACTUAL NOTICE OF TILE
ADVERSE TITLE APPLYING THE RULING IN ADILLE VS. COURT OF APPEALS, STILL RESPONDENT'S RIGHT TO FILE THE SUIT IS
BARRED BY PRESCRIPTION. — Even if we apply Adille to this case, prescription still bars REMEDIOS' complaint. As executrix of
CATALINA's LAST WILL, REMEDIOS submitted to the then Court of First Instance of Caloocan in Special Proceedings Case No. C-
208 the inventory of all the property comprising CATALINA's estate, which included Lot Nos. 2-A and 2-E. In a motion dated 7
November 1977, CONSOLACION sought the exclusion of these lots from the inventory, invoking her title over them. REMEDIOS
was served a copy of the motion on 8 November 1977 against which she filed an opposition. Nevertheless, the trial court
overruled REMEDIOS' objection. In its order of 3 January 1978, the trial court granted CONSOLACION's motion and ordered the
exclusion of Lot Nos. 2-A and 2-E from the estate of CATALINA. REMEDIOS did not appeal from this ruling. REMEDIOS thus had
actual notice of petitioners' adverse title on 8 November 1977. Even if, for the sake of argument, the ten-year prescriptive
period begins to run upon actual notice of the adverse title, still REMEDIOS' right to file this suit has prescribed. REMEDIOS had
until 11 November 1987 within which to file her complaint. When she did so on 4 February 1988, the prescriptive period had
already lapsed.
4. REMEDIAL LAW; CIVIL PROCEDURE; PARTIES TO CIVIL ACTION; RESPONDENT IS NOT A REAL PARTY-IN-INTEREST. — Not only
does prescription bar REMEDIOS' complaint. REMEDIOS is also not a real party-in-interest who can file the complaint, as the
trial court correctly ruled. The 1997 Rules of Civil Procedure require that every action must be prosecuted or defended in the
name of the real party-in-interest who is the party who stands to benefit or suffer from the judgment in the suit. If one who is
not a real party-in-interest brings the action, the suit is dismissible for lack of cause of action. REMEDIOS anchored her claim
over Lot Nos. 2-A and 2 E (or over its one-half portion on the devise of these lots to her under CATALINA's LAST WILL. However,
the trial court found that the probate court did not issue any order admitting the LAST WILL to probate. REMEDIOS does not
contest this finding. Indeed, during the trial, REMEDIOS admitted that Special Proceedings Case No. C-208 is still pending.
Article 838 of the Civil Code states that "[N]o will shall pass either real or personal property unless it is proved and allowed in
accordance with the Rules of Court." This Court has interpreted this provision to mean, "until admitted to probate, [a will] has
no effect whatever and no right can be claimed thereunder." REMEDIOS anchors her right in filing this suit on her being a
devisee of CATALINA's LAST WILL. However, since the probate court has not admitted CATALINA's LAST WILL, REMEDIOS has
not acquired any right under the LAST WILL. REMEDIOS is thus without any cause of action either to seek reconveyance of Lot
Nos. 2-A and 2-E or to enforce an implied trust over these lots.
DECISION
CARPIO, J p:
The Case
This is a petition for review of the Decision 1 dated 31 January 1994 of the Court of Appeals ordering the Register of Deeds of
Metro Manila, District III, to place TCT No. (232252) 1321 in the name of respondent Remedios S. Eugenio-Gino. The Decision
ordered the Register of Deeds to cancel the names of petitioners Ricardo Pascual and Consolacion Sioson ("petitioners") in TCT
No. (232252) 1321. The Decision also directed petitioners to pay respondent moral and exemplary damages and attorney's
fees. HASTCa
The Facts
Petitioner Consolacion Sioson ("CONSOLACION") and respondent Remedios S. Eugenio-Gino ("REMEDIOS") are the niece and
granddaughter, respectively, of the late Canuto Sioson ("CANUTO"). CANUTO and 11 other individuals, including his sister
Catalina Sioson ("CATALINA") and his brother Victoriano Sioson ("VICTORIANO"), were co-owners of a parcel of land in Tanza,
Navotas, Metro Manila. The property, known as Lot 2 of Plan Psu 13245, had an area of 9,347 square meters and was covered
by Original Certificate of Title No. 4207 issued by the Register of Deeds of Rizal. CATALINA, CANUTO, and VICTORIANO each
owned an aliquot 10/70 share or 1,335 square meters of Lot 2. 2

152
On 20 November 1951, CANUTO had Lot 2 surveyed and subdivided into eight lots (Lot Nos. 2-A to 2-H) through Subdivision
Plan Psd 34713 which the Director of Lands approved on 30 May 1952. Lot No. 2-A, with an area of 670 square meters, and Lot
No. 2-E, with an area of 2,000 square meters, were placed under CANUTO's name. Three other individuals took the remaining
lots. 3
On 26 September 1956, CANUTO and CONSOLACION executed a Kasulatan ng Bilihang Tuluyan 4 ("KASULATAN"). Under the
KASULATAN, CANUTO sold his 10/70 share in Lot 2 in favor of CONSOLACION for P2,250.00. The KASULATAN, notarized by
Notary Public Jose T. de los Santos of Navotas, provides:
Na ako, CANUTO SIOSON, mamamayang Pilipino, may katampatang gulang, kasal kay Raymunda San Diego, at naninirahan sa
Tanza, Navotas, Rizal, sa bisa at pamamagitan ng kasulatang ito ay nagpapatunay at nagpapatibay:
1. Na ako ang lubos at tunay na may-ari ng 10/70 bahaging hindi hati (10/70 porcion pro-indiviso) ng isang lagay na lupa (Lote
No. 2, Plano Psu-13245), na nasa sa nayon ng Tanza, Municipio ng Navotas, Provincia ng Rizal, at ang descripcion o
pagkakakilanlan ng nasabing lote ay nakasaad sa Certificado Original, de Titulo No. 4207 ng Oficina ng Registrador de Titulos
ng Rizal, gaya ng sumusunod:
xxx xxx xxx
2. Na dahil at alang-alang sa halagang Dalawang Libo Dalawang Daan at Limampung Piso (P2,250.00), salaping Pilipino, na sa
akin ay ibinayad ni CONSOLACION SIOSON, kasal kay Ricardo S. Pascual, may sapat na gulang, mamamayang Pilipino, at
naninirahan sa Dampalit, Malabon, Rizal at ang pagkakatanggap ng nasabing halaga ay aking inaamin at pinatutunayan, ay
aking ipinagbili, inilipat at isinalin, sa pamamagitan ng bilihang tuluyan at walang pasubali a favor [sic] sa nasabing si
CONSOLACION SIOSON, sa kanyang tagapagmana at mapaglilipatan ang lahat ng akin titulo, karapatan at kaparti na binubuo
ng 10/70 bahaging hindi hati (10/70 porcion pro-indiviso) ng loteng descrito or tinutukoy sa itaas nito. (Italics supplied)
CONSOLACION immediately took possession of Lot Nos. 2-A and 2-E. She later declared the land for taxation purposes and paid
the corresponding real estate taxes. 5
On 23 October 1968, the surviving children of CANUTO, namely, Felicidad and Beatriz, executed a joint affidavit 6 ("JOINT
AFFIDAVIT") affirming the KASULATAN in favor of CONSOLACION. They also attested that the lots their father had sold to
CONSOLACION were Lot Nos. 2-A and 2-E of Subdivision Plan Psd 34713. The JOINT AFFIDAVIT reads:
KAMING sina FELICIDAD SIOSON at BEATRIZ SIOSON, pawang mga Pilipino, kapuwa may sapat na gulang at naninirahan, ang
una sa Tanza, Navotas at ang ikalawa sa Concepcion, Malabon, lalawigan ng Rizal, sa ilalim ng isang ganap na panunumpa
alinsunod sa batas, ay malayang nagsasalaysay ng mga sumusunod:
Na kami ang mga buhay na anak na naiwan ni CANUTO SIOSON na nagmamay-ari ng 10/70 bahaging hindi hati (10/70 porcion
pro-indiviso) ng isang lagay na lupa (Lote No. 2, plano Psu-13245), na nasa Nayon ng Tanza, Navotas, Rizal, at ang mga
palatandaan nito ay nasasaad sa Certificado Original de Titulo No. 4207 ng Tanggapan ng Registrador de Titulos ng Rizal;
Na sa lubos naming kaalaman, ay ipinagbili ng aming Ama na si Canuto Sioson ang kaniyang buong bahagi na 10/70 sa
nasabing Lote No. 2, kay CONSOLACION SIOSON, may-bahay ni Ricardo S. Pascual, na taga Dampalit, Malabon, Rizal, sa
halagang P2,250.00, salaping pilipino, noong ika 16 [sic] ng Septiembre, 1956, sa pamamagitan ng isang KASULATAN NG
BILIHANG TULUYAN na pinagtibay sa harap ng Notario Publico Jose T. de los Santos nang pechang nabanggit, sa Navotas, Rizal,
(Doc. No. 194, Page No. 84; Book No. IV; Series of 1956);
Na ang nasabing lupa na ipinagbili ng aming Ama kay Consolacion Sioson ni Pascual, ay nakikilala ngayong mga Lote No. 2-A at
Lote 2-E ng Plano de Subdivision Psd-34713; na pinagtibay ng Assistant Director of Lands noong Mayo 30, 1952;
Na aming ngayong pinatitibayan ang pagka-pagbili ng bahagi ng aming Ama kay Consolacion Sioson ni Pascual ng ngayo'y
nakikilalang Lote No. 2-A at Lote No. 2-E ng Plano de Subdivision Psd-34713. (Italics supplied)
On 28 October 1968, CONSOLACION registered the KASULATAN and the JOINT AFFIDAVIT with the Office of the Register of
Deeds of Rizal ("Register of Deeds"). Based on these documents, the Register of Deeds issued to CONSOLACION Transfer
Certificate of Title No. (232252) 1321 covering Lot Nos. 2-A and 2-E of Subdivision Plan Psd 34713 with a total area of 2,670
square meters.
On 4 February 1988, REMEDIOS filed a complaint against CONSOLACION and her spouse Ricardo Pascual in the Regional Trial
Court of Malabon, Branch 165, for "Annulment or Cancellation of Transfer Certificate [of Title] and Damages." REMEDIOS
claimed that she is the owner of Lot Nos. 2-A and 2-E because CATALINA devised these lots to her in CATALINA's last will and
testament 7 ("LAST WILL") dated 29 May 1964. REMEDIOS added that CONSOLACION obtained title to these lots through
fraudulent means since the area covered by TCT (232252) 1321 is twice the size of CANUTO's share in Lot 2. REMEDIOS prayed
for the cancellation of CONSOLACION's title, the issuance of another title in her name, and the payment to her of damages.

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Petitioners sought to dismiss the complaint on the ground of prescription. Petitioners claimed that the basis of the action is
fraud, and REMEDIOS should have filed the action within four years from the registration of CONSOLACION's title on 28 October
1968 and not some 19 years later on 4 February 1988. REMEDIOS opposed the motion, claiming that she became aware of
CONSOLACION's adverse title only in February 1987. CONSOLACION maintained that she had timely filed her complaint within
the four-year prescriptive on 4 February 1988.
In its order of 28 April 1988, the trial court denied petitioners' motion to dismiss. The trial court held that the reckoning of the
prescriptive period for filing REMEDIOS' complaint is evidentiary in nature and must await the presentation of the parties'
evidence during the trial. During the pre-trial stage, REMEDIOS clarified that she was claiming only CATALINA's 10/70 share in
Lot 2, or 1,335 square meters, which constitute ½ of the area of Lot Nos. 2-A and 2-E. 8 The trial of the case then ensued.
The Ruling of the Trial Court
On 26 November 1990, the trial court rendered judgment dismissing the case and ordering REMEDIOS to pay petitioners
P10,000 as attorney's fees and the cost of suit. The trial court held that the action filed by REMEDIOS is based on fraud, covered
by the four-year prescriptive period. The trial court also held that REMEDIOS knew of petitioners' adverse title on 19 November
1982 when REMEDIOS testified against petitioners in an ejectment suit petitioners had filed against their tenants in Lot Nos. 2-A
and 2-E. Thus, the complaint of REMEDIOS had already prescribed when she filed it on 4 February 1988.
The trial court further ruled that REMEDIOS has no right of action against petitioners because CATALINA's LAST WILL from
which REMEDIOS claims to derive her title has not been admitted to probate. Under Article 838 of the Civil Code, no will passes
real or personal property unless it is allowed in probate in accordance with the Rules of Court. The dispositive portion of the
trial court's decision provides:
WHEREFORE, judgment is hereby rendered in favor of the defendants and against plaintiff, ordering:
1. The dismissal of this case;
2. The plaintiff to pay the defendants the sum of Ten Thousand (P10,000.00) Pesos as and for attorney's fees; and
3. The plaintiff to pay the costs of suit. 9
REMEDIOS appealed to the Court of Appeals.
The Ruling of the Court of Appeals
On 31 January 1994, the Court of Appeals rendered judgment reversing the decision of the trial court. The appellate court held
that what REMEDIOS filed was a suit to enforce an implied trust allegedly created in her favor when CONSOLACION fraudulently
registered her title over Lot Nos. 2-A and 2-E. Consequently, the prescriptive period for filing the complaint is ten years, not
four. The Court of Appeals counted this ten-year period from 19 November 1982. Thus, when REMEDIOS filed her complaint on
4 February 1988, the ten-year prescriptive period had not yet expired.
The appellate court held that CATALINA's unprobated LAST WILL does not preclude REMEDIOS from seeking reconveyance of
Lot Nos. 2-A and 2-E as the LAST WILL may subsequently be admitted to probate. The dispositive portion of the appellate
court's ruling provides:
WHEREFORE, the decision appealed from is REVERSED and SET ASIDE. The Registry of Deeds of Rizal or Metro Manila, District
III, is ordered to place Transfer Certificate of Title No. (232252) 1321 under the name of Remedios S. Eugenio-Gino as executor
of the will of Catalina Sioson and cancel the names of the Spouses Ricardo Pascual and Consolacion Sioson inscribed over said
title as owners of the covered lot. Defendants-appellees spouses Ricardo Pascual and Consolacion Sioson are ordered to pay
plaintiff-appellant Remedios S. Eugenio-Gino moral damages in the amount of P50,000.00, exemplary damages of P20,000[.00]
and attorney's fees of P20,000.00 and P500.00 per appearance. 10
Petitioners sought reconsideration of the ruling. However, the Court of Appeals denied their motion in its order dated 15 June
1994.
Hence, this petition.
The Issues
Petitioners allege the following assignment of errors:
I. THE COURT OF APPEALS ERRED IN HOLDING THAT PRIVATE RESPONDENT'S CAUSE OF ACTION IS NOT BARRED BY
PRESCRIPTION WHICH FINDING IS MANIFESTLY CONTRARY TO LAW AND THE APPLICABLE DECISIONS OF THIS HONORABLE
COURT.

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II. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT PRIVATE RESPONDENT DOES NOT HAVE ANY TITLE AND HAS UTTERLY
FAILED TO PROVE ANY TITLE TO THE LOTS INVOLVED IN THIS CASE, AND IN ORDERING THE CANCELLATION OF THE CERTIFICATE
OF TITLE OF PETITIONERS.
III. THE COURT OF APPEALS ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION AND IN GROSS
VIOLATION OF THE RULES OF COURT IN ORDERING THE ENTIRE PROPERTY COVERED BY TRANSFER CERTIFICATE OF TITLE NO.
(232252) 1321 TO BE PLACED IN THE NAME OF PRIVATE RESPONDENT, BECAUSE THE CLAIM OF PRIVATE RESPONDENT IS
LIMITED ONLY TO ONE-HALF (½) PORTION OF THE PROPERTY, AND THE OTHER HALF THEREOF UNQUESTIONABLY BELONGS TO
PETITIONERS.
IV. THE COURT OF APPEALS ERRED IN HOLDING THAT PETITIONERS ACTED FRAUDULENTLY AND IN BAD FAITH IN SECURING
THEIR CERTIFICATE OF TITLE TO THE PROPERTY INVOLVED IN THIS CASE, AND IN ORDERING PETITIONERS TO PAY PRIVATE
RESPONDENTS MORAL DAMAGES, EXEMPLARY DAMAGES AND ATTORNEY'S FEES. 11
The pivotal questions are: (1) whether prescription bars the action filed by REMEDIOS, and (2) whether REMEDIOS is a real
party-in-interest.
The Ruling of the Court
The petition has merit.
The Action is Barred by Prescription
The trial court held that the action filed by REMEDIOS is one based on fraud. REMEDIOS' action seeks to recover real property
that petitioners allegedly acquired through fraud. Consequently, the trial court held that the action prescribes in four years
counted from REMEDIOS' actual discovery of petitioners' adverse title. The trial court concluded that REMEDIOS belatedly filed
her suit on 4 February 1988 because she actually knew of petitioners' adverse title since 19 November 1982.
On the other hand, the Court of Appeals held that what REMEDIOS filed was a suit to enforce an implied trust. REMEDIOS had
ten years counted from actual notice of the breach of trust, that is, the assertion of adverse title, within which to bring her
action. The appellate court held that REMEDIOS seasonably filed her complaint on 4 February 1988 because she allegedly
discovered petitioners' adverse title only on 19 November 1982.
What REMEDIOS filed was an action to enforce an implied trust but the same is already barred by prescription.
Prescriptive Period is 10 Years Counted
From Registration of Adverse Title
The four-year prescriptive period relied upon by the trial court applies only if the fraud does not give rise to an implied trust,
and the action is to annul a voidable contract under Article 1390 12 of the Civil Code. In such a case, the four-year prescriptive
period under Article 1391 13 begins to run from the time of discovery of the mistake, violence, intimidation, undue influence or
fraud.
In the present case, REMEDIOS does not seek to annul the KASULATAN. REMEDIOS does not assail the KASULATAN as a voidable
contract. In fact, REMEDIOS admits the validity of the sale of 1,335 square meters of land under the KASULATAN. However,
REMEDIOS alleges that the excess area of 1,335 meters is not part of the sale under the KASULATAN. REMEDIOS seeks the
removal of this excess area from TCT No. (232252) 1321 that was issued to CONSOLACION. Consequently, REMEDIOS' action is
for "Annulment or Cancellation of Transfer Certificate [of Title] and Damages." 14
REMEDIOS' action is based on an implied trust under Article 1456 since she claims that the inclusion of the additional 1,335
square meters in TCT No. (232252) 1321 was without basis. In effect, REMEDIOS asserts that CONSOLACION acquired the
additional 1,335 square meters through mistake or fraud and thus CONSOLACION should be considered a trustee of an implied
trust for the benefit of the rightful owner of the property. Clearly, the applicable prescriptive period is ten years under Article
1144 and not four years under Articles 1389 and 1391.
It is now well-settled that the prescriptive period to recover property obtained by fraud or mistake, giving rise to an implied
trust under Article 1456 15 of the Civil Code, is ten years pursuant to Article 1144. 16 This ten-year prescriptive period begins to
run from the date the adverse party repudiates the implied trust, which repudiation takes place when the adverse party
registers the land. 17
REMEDIOS filed her complaint on 4 February 1988 or more than 19 years after CONSOLACION registered her title over Lot Nos.
2-A and 2-E on 28 October 1968. Unquestionably, REMEDIOS filed the complaint late thus warranting its dismissal. As the Court
recently declared in Spouses Alfredo v. Spouses Borras, 18 —

155
Following Caro, 19 we have consistently held that an action for reconveyance based on an implied trust prescribes in ten years.
We went further by specifying the reference point of the ten-year prescriptive period as the date of the registration of the deed
or the issuance of the title.
The Court of Appeals' Reckoning of Prescriptive Period
from Actual Notice of Adverse Title Not Justified
In holding that the action filed by REMEDIOS has not prescribed, the Court of Appeals invoked this Court's ruling in Adille v.
Court of Appeals. 20 In Adille, the Court reckoned the ten-year prescriptive period for enforcing implied trusts not from
registration of the adverse title but from actual notice of the adverse title by the cestui que trust. However, the Court, in
justifying its deviation from the general rule, explained:
[W]hile actions to enforce a constructive trust prescribes (sic) in ten years, reckoned from the date of the registration of the
property, we . . . are not prepared to count the period from such date in this case. We note the petitioner's sub rosa efforts to
get hold of the property exclusively for himself beginning with his fraudulent misrepresentation in his unilateral affidavit of
extrajudicial settlement that he is "the only heir and child of his mother Feliza["] with the consequence that he was able to
secure title in his name also. (Italics supplied)
Such commission of specific fraudulent conduct is absent in the present case. Other than asserting that petitioners are guilty of
fraud because they secured title to Lot Nos. 2-A and 2-E with an area twice bigger than what CANUTO allegedly sold to
CONSOLACION, REMEDIOS did not present any other proof of petitioners' fraudulent conduct akin to Adille.
CONSOLACION obtained title to Lot Nos. 2-A and 2-E through the KASULATAN executed by CANUTO and the JOINT AFFIDAVIT
executed by his surviving children, one of whom, Felicidad, is the mother of REMEDIOS. The KASULATAN referred to the sale of
CANUTO's 10/70 share in Lot 2 without specifying the area of the lot sold. The JOINT AFFIDAVIT referred to the "Plano de
Subdivision Psd-34713" without also specifying the area of the lot sold. However, Subdivision Plan Psd 34713, as certified by the
Assistant Director of Lands on 30 May 1952, showed an area of 2,670 square meters in the name of CANUTO. Based on these
documents, the Register of Deeds issued TCT No. (232252) 1321 to CONSOLACION covering an area of 2,670 square meters.
REMEDIOS does not assail the KASULATAN or the JOINT AFFIDAVIT as fictitious or forged. REMEDIOS even admits the
authenticity of Subdivision Plan Psd 34713 as certified by the Assistant Director of Lands. 21 Moreover, REMEDIOS has not
contested petitioners' claim that CANUTO doubled his share in Lot 2 by acquiring VICTORIANO's share. 22
Plainly, the increase in the area sold from 1,335 square meters to 2,670 square meters is a glaring mistake. There is, however,
no proof whatsoever that this increase in area was the result of fraud. Allegations of fraud in actions to enforce implied trusts
must be proved by clear and convincing evidence. 23 Adille, which is anchored on fraud, 24 cannot apply to the present case.
At any rate, even if we apply Adille to this case, prescription still bars REMEDIOS' complaint. As executrix of CATALINA's LAST
WILL, REMEDIOS submitted to the then Court of First Instance of Caloocan in Special Proceedings Case No. C-208 the inventory
of all the property comprising CATALINA's estate, which included Lot Nos. 2-A and 2-E. In a motion dated 7 November 1977,
CONSOLACION sought the exclusion of these lots from the inventory, invoking her title over them. REMEDIOS was served a
copy of the motion on 8 November 1977 against which she filed an opposition. Nevertheless, the trial court overruled
REMEDIOS' objection. In its order of 3 January 1978, the trial court granted CONSOLACION's motion and ordered the exclusion
of Lot Nos. 2-A and 2-E from the estate of CATALINA. REMEDIOS did not appeal from this ruling.
REMEDIOS thus had actual notice of petitioners' adverse title on 8 November 1977. Even if, for the sake of argument, the ten-
year prescriptive period begins to run upon actual notice of the adverse title, still REMEDIOS' right to file this suit has
prescribed. REMEDIOS had until 11 November 1987 within which to file her complaint. When she did so on 4 February 1988,
the prescriptive period had already lapsed.
Respondent is Not a Real Party-in-Interest
Not only does prescription bar REMEDIOS' complaint. REMEDIOS is also not a real party-in-interest who can file the complaint,
as the trial court correctly ruled.
The 1997 Rules of Civil Procedure require that every action must be prosecuted or defended in the name of the real party-in-
interest who is the party who stands to benefit or suffer from the judgment in the suit. 25 If one who is not a real party-in-
interest brings the action, the suit is dismissible for lack of cause of action. 26
REMEDIOS anchored her claim over Lot Nos. 2-A and 2-E (or over its one-half portion) on the devise of these lots to her under
CATALINA's LAST WILL. However, the trial court found that the probate court did not issue any order admitting the LAST WILL to
probate. REMEDIOS does not contest this finding. Indeed, during the trial, REMEDIOS admitted that Special Proceedings Case
No. C-208 is still pending. 27

156
Article 838 of the Civil Code states that "[N]o will shall pass either real or personal property unless it is proved and allowed in
accordance with the Rules of Court." This Court has interpreted this provision to mean, "until admitted to probate, [a will] has
no effect whatever and no right can be claimed thereunder." 28 REMEDIOS anchors her right in filing this suit on her being a
devisee of CATALINA's LAST WILL. However, since the probate court has not admitted CATALINA's LAST WILL, REMEDIOS has
not acquired any right under the LAST WILL. REMEDIOS is thus without any cause of action either to seek reconveyance of Lot
Nos. 2-A and 2-E or to enforce an implied trust over these lots.
The appellate court tried to go around this deficiency by ordering the reconveyance of Lot Nos. 2-A and 2-E to REMEDIOS in her
capacity as executrix of CATALINA's LAST WILL. This is inappropriate because REMEDIOS sued petitioners not in such capacity
but as the alleged owner of the disputed lots. Thus, REMEDIOS alleged in her complaint:
3. The plaintiff is a niece and compulsory heir of the late CATALINA SIOSON who died single and without any child of her own
and who, during her lifetime, was the owner of those two (2) parcels of land located at Tanza, Navotas, Rizal (now Metro
Manila), formerly covered by Original Certificate of Title No. 4207 of the Registry of Deeds for the Province of Rizal, . . .
4. The plaintiff, aside from being the compulsory heir of the deceased CATALINA SIOSON, has sole and exclusive claim of
ownership over the above-mentioned two (2) parcels of land by virtue of a will or "Huling Habilin at Pagpapasiya" executed by
Catalina Sioson on May 19, 1964 before Notary Public Efren Y. Angeles at Navotas, Rizal, in which document the deceased
Catalina Sioson specifically and exclusively bequeathed to the plaintiff the above-mentioned Lots 2-A and 2-E of Psd-34713
approved by the Bureau of Lands on May 30, 1952. Copy of the "Huling Habilin at Pagpapasiya" consisting of four (4) pages is
hereto attached and forms an integral part hereof as Annex "A";
5. Sometime on or about February, 1987, plaintiff discovered that the above-mentioned Lots 2-A and 2-E of subdivision plan
Psd-34713 are now registered or titled in the name of the defendants under Transfer Certificate of Title No. (232252) 1321 of
the Registry of Deeds of Rizal, now Metro-Manila District III. Copy of the title is hereto attached and forms an integral part
hereof as Annex "B";
6. Upon further inquiry and investigation, plaintiff discovered that the defendants were able to obtain title in their name of the
said parcels of land by virtue of a "Kasulatan ng Bilihang Tuluyan" allegedly executed by Canuto Sioson on September 26, 1956
before Notary Public Jose [T.] de los Santos of Navotas, Metro-Manila. Copy of the said document is hereto attached and forms
an integral part hereof as Annex "C";
7. The plaintiff also discovered that although . . . the original sale did not specify the parcels of land sold by Canuto Sioson, the
defendants submitted an alleged Affidavit executed by Felicidad Sioson and Beatriz Sioson identifying the lots sold by Canuto
Sioson to the defendants as Lots 2-A and 2-E of subdivision plan Psd-34713. Copy of the Affidavit dated October 3, 1968 on the
basis of which the present Transfer Certificate of Title No. (232252) 1321 was issued to the defendants is hereto attached and
forms an integral part hereof as Annex "D";
8. The defendants are clearly guilty of fraud in presenting the aforementioned Affidavit (Annex "D") to the Register of Deeds as
the basis of their claim to Lots 2-A and 2-E in view of the fact that the parcels sold to them by Canuto Sioson, assuming there
was such a sale, were different parcels of land, Lots 2-A and 2-E being the properties of the late Catalina Sioson who
bequeathed the same to the plaintiff.
xxx xxx xxx
12. Because of the defendants' fraudulent actuations on this matter, plaintiff suffered and continious [sic] to suffer moral
damages arising from anxiety, shock and wounded feelings. Defendants should also be assessed exemplary damages by way of
a lesson to deter them from again committing the fraudulent acts, or acts of similar nature, by virtue of which they were able to
obtain title to the parcels of land involved in this case . . . 29 (Italics supplied)
Indeed, all throughout the proceedings below and even in her Comment to this petition, REMEDIOS continued to pursue her
claim as the alleged owner of one-half of the disputed lots.
Other Matters Raised in the Petition
The Court deems it unnecessary to pass upon the other errors petitioners assigned concerning the award of damages and
attorneys fees to REMEDIOS. Such award assumes that REMEDIOS is a real party-in-interest and that she timely filed her
complaint. As earlier shown, this is not the case.
WHEREFORE, we GRANT the petition. The Decision of the Court of Appeals dated 31 January 1994 and its Resolution dated 15
June 1994 are SET ASIDE. The complaint filed by respondent Remedios Eugenio-Gino, dated 2 February 1988 is DISMISSED.
SO ORDERED.
||| (Spouses Pascual v. Court of Appeals, G.R. No. 115925, [August 15, 2003], 456 PHIL 308-327)

157
G.R. No. L-56340 June 24, 1983
SPOUSES ALVARO PASTOR, JR. and MA. ELENA ACHAVAL DE PASTOR, petitioners,
vs.
THE COURT OF APPEALS, JUAN Y. REYES, JUDGE OF BRANCH I, COURT OF FIRST INSTANCE OF CEBU and LEWELLYN BARLITO
QUEMADA, respondents.
Pelaez, Pelaez, & Pelaez Law Office for petitioners.
Ceniza, Rama & Associates for private respondents.

PLANA, J.:
I. FACTS:
This is a case of hereditary succession.
Alvaro Pastor, Sr. (PASTOR, SR.), a Spanish subject, died in Cebu City on June 5, 1966, survived by his Spanish wife Sofia Bossio
(who also died on October 21, 1966), their two legitimate children Alvaro Pastor, Jr. (PASTOR, JR.) and Sofia Pastor de Midgely
(SOFIA), and an illegitimate child, not natural, by the name of Lewellyn Barlito Quemada QUEMADA PASTOR, JR. is a Philippine
citizen, having been naturalized in 1936. SOFIA is a Spanish subject. QUEMADA is a Filipino by his mother's citizenship.
On November 13, 1970, QUEMADA filed a petition for the probate and allowance of an alleged holographic will of PASTOR, SR.
with the Court of First Instance of Cebu, Branch I (PROBATE COURT), docketed as SP No. 3128-R. The will contained only one
testamentary disposition: a legacy in favor of QUEMADA consisting of 30% of PASTOR, SR.'s 42% share in the operation by Atlas
Consolidated Mining and Development Corporation (ATLAS) of some mining claims in Pina-Barot, Cebu.
On November 21, 1970, the PROBATE COURT, upon motion of QUEMADA and after an ex parte hearing, appointed him special
administrator of the entire estate of PASTOR, SR., whether or not covered or affected by the holographic will. He assumed
office as such on December 4, 1970 after filing a bond of P 5,000.00.
On December 7, 1970, QUEMADA as special administrator, instituted against PASTOR, JR. and his wife an action for
reconveyance of alleged properties of the estate, which included the properties subject of the legacy and which were in the
names of the spouses PASTOR, JR. and his wife, Maria Elena Achaval de Pastor, who claimed to be the owners thereof in their
own rights, and not by inheritance. The action, docketed as Civil Case No. 274-R, was filed with the Court of First Instance of
Cebu, Branch IX.
On February 2, 1971, PASTOR, JR. and his sister SOFIA filed their opposition to the petition for probate and the order appointing
QUEMADA as special administrator.
On December 5, 1972, the PROBATE COURT issued an order allowing the will to probate. Appealed to the Court of Appeals in
CA-G.R. No. 52961- R, the order was affirmed in a decision dated May 9, 1977. On petition for review, the Supreme Court in
G.R. No. L-46645 dismissed the petition in a minute resolution dated November 1, 1977 and remanded the same to the
PROBATE COURT after denying reconsideration on January 11, 1978.
For two years after remand of the case to the PROBATE COURT, QUEMADA filed pleading after pleading asking for payment of
his legacy and seizure of the properties subject of said legacy. PASTOR, JR. and SOFIA opposed these pleadings on the ground of
pendency of the reconveyance suit with another branch of the Cebu Court of First Instance. All pleadings remained unacted
upon by the PROBATE COURT.
On March 5, 1980, the PROBATE COURT set the hearing on the intrinsic validity of the will for March 25, 1980, but upon
objection of PASTOR, JR. and SOFIA on the e ground of pendency of the reconveyance suit, no hearing was held on March 25.
Instead, the PROBATE COURT required the parties to submit their respective position papers as to how much inheritance
QUEMADA was entitled to receive under the wig. Pursuant thereto, PASTOR. JR. and SOFIA submitted their Memorandum of
authorities dated April 10, which in effect showed that determination of how much QUEMADA should receive was still
premature. QUEMADA submitted his Position paper dated April 20, 1980. ATLAS, upon order of the Court, submitted a sworn
statement of royalties paid to the Pastor Group of tsn from June 1966 (when Pastor, Sr. died) to February 1980. The statement
revealed that of the mining claims being operated by ATLAS, 60% pertained to the Pastor Group distributed as follows:
1. A. Pastor, Jr. ...................................40.5%
2. E. Pelaez, Sr. ...................................15.0%
3. B. Quemada .......................................4.5%

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On August 20, 1980, while the reconveyance suit was still being litigated in Branch IX of the Court of First Instance of Cebu, the
PROBATE COURT issued the now assailed Order of Execution and Garnishment, resolving the question of ownership of the
royalties payable by ATLAS and ruling in effect that the legacy to QUEMADA was not inofficious. [There was absolutely no
statement or claim in the Order that the Probate Order of December 5, 1972 had previously resolved the issue of ownership of
the mining rights of royalties thereon, nor the intrinsic validity of the holographic will.]
The order of August 20, 1980 found that as per the holographic will and a written acknowledgment of PASTOR, JR. dated June
17, 1962, of the above 60% interest in the mining claims belonging to the Pastor Group, 42% belonged to PASTOR, SR. and only
33% belonged to PASTOR, JR. The remaining 25% belonged to E. Pelaez, also of the Pastor Group. The PROBATE COURT thus
directed ATLAS to remit directly to QUEMADA the 42% royalties due decedent's estate, of which QUEMADA was authorized to
retain 75% for himself as legatee and to deposit 25% with a reputable banking institution for payment of the estate taxes and
other obligations of the estate. The 33% share of PASTOR, JR. and/or his assignees was ordered garnished to answer for the
accumulated legacy of QUEMADA from the time of PASTOR, SR.'s death, which amounted to over two million pesos.
The order being "immediately executory", QUEMADA succeeded in obtaining a Writ of Execution and Garnishment on
September 4, 1980, and in serving the same on ATLAS on the same day. Notified of the Order on September 6, 1980, the
oppositors sought reconsideration thereof on the same date primarily on the ground that the PROBATE COURT gravely abused
its discretion when it resolved the question of ownership of the royalties and ordered the payment of QUEMADA's legacy after
prematurely passing upon the intrinsic validity of the will. In the meantime, the PROBATE COURT ordered suspension of
payment of all royalties due PASTOR, JR. and/or his assignees until after resolution of oppositors' motion for reconsideration.
Before the Motion for Reconsideration could be resolved, however, PASTOR, JR., this time joined by his wife Ma. ELENA
ACHAVAL DE PASTOR, filed with the Court of Appeals a Petition for certiorari and Prohibition with a prayer for writ of
preliminary injunction (CA-G.R. No. SP- 11373-R). They assailed the Order dated August 20, 1980 and the writ of execution and
garnishment issued pursuant thereto. The petition was denied on November 18, 1980 on the grounds (1) that its filing was
premature because the Motion for Reconsideration of the questioned Order was still pending determination by the PROBATE
COURT; and (2) that although "the rule that a motion for reconsideration is prerequisite for an action for certiorari is never an
absolute rule," the Order assailed is "legally valid. "
On December 9, 1980, PASTOR, JR. and his wife moved for reconsideration of the Court of Appeal's decision of November 18,
1980, calling the attention of the appellate court to another order of the Probate Court dated November 11, 1980 (i.e., while
their petition for certiorari was pending decision in the appellate court), by which the oppositors' motion for reconsideration of
the Probate Court's Order of August 20, 1980 was denied. [The November 11 Order declared that the questions of intrinsic
validity of the will and of ownership over the mining claims (not the royalties alone) had been finally adjudicated by the final
and executory Order of December 5, 1972, as affirmed by the Court of Appeals and the Supreme Court, thereby rendering moot
and academic the suit for reconveyance then pending in the Court of First Instance of Cebu, Branch IX. It clarified that only the
33% share of PASTOR, JR. in the royalties (less than 7.5% share which he had assigned to QUEMADA before PASTOR, SR. died)
was to be garnished and that as regards PASTOR, SR.'s 42% share, what was ordered was just the transfer of its possession to
the custody of the PROBATE COURT through the special administrator. Further, the Order granted QUEMADA 6% interest on his
unpaid legacy from August 1980 until fully paid.] Nonetheless, the Court of Appeals denied reconsideration.
Hence, this Petition for Review by certiorari with prayer for a writ of pre y injunction, assailing the decision of the Court of
Appeals dated November 18, 1980 as well as the orders of the Probate Court dated August 20, 1980, November 11, 1980 and
December 17, 1980, Med by petitioners on March 26, 1981, followed by a Supplemental Petition with Urgent Prayer for
Restraining Order.
In April 1981, the Court (First Division) issued a writ of preliminary injunction, the lifting of which was denied in the Resolution
of the same Division dated October 18, 1982, although the bond of petitioners was increased from P50,000.00 to P100,000.00.
Between December 21, 1981 and October 12, 1982, private respondent filed seven successive motions for early resolution. Five
of these motions expressly prayed for the resolution of the question as to whether or not the petition should be given due
course.
On October 18, 1982, the Court (First Division) adopted a resolution stating that "the petition in fact and in effect was given due
course when this case was heard on the merits on September 7, (should be October 21, 1981) and concise memoranda in
amplification of their oral arguments on the merits of the case were filed by the parties pursuant to the resolution of October
21, 1981 . . . " and denied in a resolution dated December 13, 1982, private respondent's "Omnibus motion to set aside
resolution dated October 18, 1982 and to submit the matter of due course to the present membership of the Division; and to
reassign the case to another ponente."
Upon Motion for Reconsideration of the October 18, 1982 and December 13, 1982 Resolutions, the Court en banc resolved to
CONFIRM the questioned resolutions insofar as hey resolved that the petition in fact and in effect had been given due course.

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II. ISSUES:
Assailed by the petitioners in these proceedings is the validity of the Order of execution and garnishment dated August 20,
1980 as well as the Orders subsequently issued allegedly to implement the Probate Order of December 5, 1972, to wit: the
Order of November 11, 1980 declaring that the Probate Order of 1972 indeed resolved the issues of ownership and intrinsic
validity of the will, and reiterating the Order of Execution dated August 20, 1980; and the Order of December 17, 1980 reducing
to P2,251,516.74 the amount payable to QUEMADA representing the royalties he should have received from the death of
PASTOR, SR. in 1966 up to February 1980.
The Probate Order itself, insofar as it merely allowed the holographic will in probate, is not questioned. But petitioners
denounce the Probate Court for having acted beyond its jurisdiction or with grave abuse of discretion when it issued the
assailed Orders. Their argument runs this way: Before the provisions of the holographic win can be implemented, the questions
of ownership of the mining properties and the intrinsic validity of the holographic will must first be resolved with finality. Now,
contrary to the position taken by the Probate Court in 1980 — i.e., almost eight years after the probate of the will in 1972 —
the Probate Order did not resolve the two said issues. Therefore, the Probate Order could not have resolved and actually did
not decide QUEMADA's entitlement to the legacy. This being so, the Orders for the payment of the legacy in alleged
implementation of the Probate Order of 1972 are unwarranted for lack of basis.
Closely related to the foregoing is the issue raised by QUEMADA The Probate Order of 1972 having become final and executory,
how can its implementation (payment of legacy) be restrained? Of course, the question assumes that QUEMADA's entitlement
to the legacy was finally adjudged in the Probate Order.
On the merits, therefore, the basic issue is whether the Probate Order of December 5, 1972 resolved with finality the questions
of ownership and intrinsic validity. A negative finding will necessarily render moot and academic the other issues raised by the
parties, such as the jurisdiction of the Probate Court to conclusively resolve title to property, and the constitutionality and
repercussions of a ruling that the mining properties in dispute, although in the name of PASTOR, JR. and his wife, really
belonged to the decedent despite the latter's constitutional disqualification as an alien.
On the procedural aspect, placed in issue is the propriety of certiorari as a means to assail the validity of the order of execution
and the implementing writ.
III. DISCUSSION:
1. Issue of Ownership —
(a) In a special proceeding for the probate of a will, the issue by and large is restricted to the extrinsic validity of the will, i.e.,
whether the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by law. (Rules
of Court, Rule 75, Section 1; Rule 76, Section 9.) As a rule, the question of ownership is an extraneous matter which the Probate
Court cannot resolve with finality. Thus, for the purpose of determining whether a certain property should or should not be
included in the inventory of estate properties, the Probate Court may pass upon the title thereto, but such determination is
provisional, not conclusive, and is subject to the final decision in a separate action to resolve title. [3 Moran, Comments on the
Rules of Court (1980 ed.), p. 458; Valero Vda. de Rodriguez vs. Court of Appeals, 91 SCRA 540.]
(b) The rule is that execution of a judgment must conform to that decreed in the dispositive part of the decision. (Philippine-
American Insurance Co. vs. Honorable Flores, 97 SCRA 811.) However, in case of ambiguity or uncertainty, the body of the
decision may be scanned for guidance in construing the judgment. (Heirs of Presto vs. Galang, 78 SCRA 534; Fabular vs. Court of
Appeals, 119 SCRA 329; Robles vs. Timario. 107 Phil. 809.)
The Order sought to be executed by the assailed Order of execution is the Probate Order of December 5, 1972 which allegedly
resolved the question of ownership of the disputed mining properties. The said Probate Order enumerated the issues before
the Probate Court, thus:
Unmistakably, there are three aspects in these proceedings: (1) the probate of the holographic will (2) the intestate estate
aspect; and (3) the administration proceedings for the purported estate of the decedent in the Philippines.
In its broad and total perspective the whole proceedings are being impugned by the oppositors on jurisdictional grounds, i.e.,
that the fact of the decedent's residence and existence of properties in the Philippines have not been established.
Specifically placed in issue with respect to the probate proceedings are: (a) whether or not the holographic will (Exhibit "J") has
lost its efficacy as the last will and testament upon the death of Alvaro Pastor, Sr. on June 5, 1966, in Cebu City, Philippines; (b)
Whether or not the said will has been executed with all the formalities required by law; and (c) Did the late presentation of the
holographic will affect the validity of the same?
Issues In the Administration Proceedings are as follows: (1) Was the ex- parte appointment of the petitioner as special
administrator valid and proper? (2) Is there any indispensable necessity for the estate of the decedent to be placed under

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administration? (3) Whether or not petition is qualified to be a special administrator of the estate; and (4) Whether or not the
properties listed in the inventory (submitted by the special administrator but not approved by the Probate Court) are to be
excluded.
Then came what purports to be the dispositive portion:
Upon the foregoing premises, this Court rules on and resolves some of the problems and issues presented in these proceedings,
as follows:
(a) The Court has acquired jurisdiction over the probate proceedings as it hereby allows and approves the so-called holographic
will of testator Alvaro Pastor, Sr., executed on July 31, 1961 with respect to its extrinsic validity, the same having been duly
authenticated pursuant to the requisites or solemnities prescribed by law. Let, therefore, a certificate of its allowance be
prepared by the Branch Clerk of this Court to be signed by this Presiding Judge, and attested by the seal of the Court, and
thereafter attached to the will, and the will and certificate filed and recorded by the clerk. Let attested copies of the will and of
the certificate of allowance thereof be sent to Atlas Consolidated Mining & Development Corporation, Goodrich Bldg., Cebu
City, and the Register of Deeds of Cebu or of Toledo City, as the case may be, for recording.
(b) There was a delay in the granting of the letters testamentary or of administration for as a matter of fact, no regular executor
and/or administrator has been appointed up to this time and - the appointment of a special administrator was, and still is,
justified under the circumstances to take possession and charge of the estate of the deceased in the Philippines (particularly in
Cebu) until the problems causing the delay are decided and the regular executor and/or administrator appointed.
(c) There is a necessity and propriety of a special administrator and later on an executor and/or administrator in these
proceedings, in spite of this Court's declaration that the oppositors are the forced heirs and the petitioner is merely vested with
the character of a voluntary heir to the extent of the bounty given to him (under) the will insofar as the same will not prejudice
the legitimes of the oppositor for the following reasons:
1. To submit a complete inventory of the estate of the decedent-testator Alvaro Pastor, Sr.
2. To administer and to continue to put to prolific utilization of the properties of the decedent;
3. To keep and maintain the houses and other structures and belonging to the estate, since the forced heirs are residing in
Spain, and prepare them for delivery to the heirs in good order after partition and when directed by the Court, but only after
the payment of estate and inheritance taxes;
(d) Subject to the outcome of the suit for reconveyance of ownership and possession of real and personal properties in Civil Case
No. 274-T before Branch IX of the Court of First Instance of Cebu, the intestate estate administration aspect must proceed,
unless, however, it is duly proven by the oppositors that debts of the decedent have already been paid, that there had been an
extrajudicial partition or summary one between the forced heirs, that the legacy to be given and delivered to the petitioner
does not exceed the free portion of the estate of the testator, that the respective shares of the forced heirs have been fairly
apportioned, distributed and delivered to the two forced heirs of Alvaro Pastor, Sr., after deducting the property willed to the
petitioner, and the estate and inheritance taxes have already been paid to the Government thru the Bureau of Internal
Revenue.
The suitability and propriety of allowing petitioner to remain as special administrator or administrator of the other properties of
the estate of the decedent, which properties are not directly or indirectly affected by the provisions of the holographic will
(such as bank deposits, land in Mactan etc.), will be resolved in another order as separate incident, considering that this order
should have been properly issued solely as a resolution on the issue of whether or not to allow and approve the aforestated will.
(Emphasis supplied.)
Nowhere in the dispositive portion is there a declaration of ownership of specific properties. On the contrary, it is manifest
therein that ownership was not resolved. For it confined itself to the question of extrinsic validity of the win, and the need for
and propriety of appointing a special administrator. Thus it allowed and approved the holographic win "with respect to its
extrinsic validity, the same having been duly authenticated pursuant to the requisites or solemnities prescribed by law." It
declared that the intestate estate administration aspect must proceed " subject to the outcome of the suit for reconveyance of
ownership and possession of real and personal properties in Civil Case 274-T before Branch IX of the CFI of Cebu."
[Parenthetically, although the statement refers only to the "intestate" aspect, it defies understanding how ownership by the
estate of some properties could be deemed finally resolved for purposes of testate administration, but not so for intestate
purposes. Can the estate be the owner of a property for testate but not for intestate purposes?] Then again, the Probate Order
(while indeed it does not direct the implementation of the legacy) conditionally stated that the intestate administration aspect
must proceed "unless . . . it is proven . . . that the legacy to be given and delivered to the petitioner does not exceed the free
portion of the estate of the testator," which clearly implies that the issue of impairment of legitime (an aspect of intrinsic
validity) was in fact not resolved. Finally, the Probate Order did not rule on the propriety of allowing QUEMADA to remain as

161
special administrator of estate properties not covered by the holographic will, "considering that this (Probate) Order should
have been properly issued solely as a resolution on the issue of whether or not to allow and approve the aforestated will. "
(c) That the Probate Order did not resolve the question of ownership of the properties listed in the estate inventory was
appropriate, considering that the issue of ownership was the very subject of controversy in the reconveyance suit that was still
pending in Branch IX of the Court of First Instance of Cebu.
(d) What, therefore, the Court of Appeals and, in effect, the Supreme Court affirmed en toto when they reviewed the Probable
Order were only the matters properly adjudged in the said Order.
(e) In an attempt to justify the issuance of the Order of execution dated August 20, 1980, the Probate Court in its Order of
November 11, 1980 explained that the basis for its conclusion that the question of ownership had been formally resolved by
the Probate Order of 1972 are the findings in the latter Order that (1) during the lifetime of the decedent, he was receiving
royalties from ATLAS; (2) he had resided in the Philippines since pre-war days and was engaged in the mine prospecting
business since 1937 particularly in the City of Toledo; and (3) PASTOR, JR. was only acting as dummy for his father because the
latter was a Spaniard.
Based on the premises laid, the conclusion is obviously far-fetched.
(f) It was, therefore, error for the assailed implementing Orders to conclude that the Probate Order adjudged with finality the
question of ownership of the mining properties and royalties, and that, premised on this conclusion, the dispositive portion of
the said Probate Order directed the special administrator to pay the legacy in dispute.
2. Issue of Intrinsic Validity of the Holographic Will -
(a) When PASTOR, SR. died in 1966, he was survived by his wife, aside from his two legitimate children and one illegitimate son.
There is therefore a need to liquidate the conjugal partnership and set apart the share of PASTOR, SR.'s wife in the conjugal
partnership preparatory to the administration and liquidation of the estate of PASTOR, SR. which will include, among others,
the determination of the extent of the statutory usufructuary right of his wife until her death. * When the disputed Probate
order was issued on December 5, 1972, there had been no liquidation of the community properties of PASTOR, SR. and his wife.
(b) So, also, as of the same date, there had been no prior definitive determination of the assets of the estate of PASTOR, SR.
There was an inventory of his properties presumably prepared by the special administrator, but it does not appear that it was
ever the subject of a hearing or that it was judicially approved. The reconveyance or recovery of properties allegedly owned but
not in the name of PASTOR, SR. was still being litigated in another court.
(c) There was no appropriate determination, much less payment, of the debts of the decedent and his estate. Indeed, it was
only in the Probate Order of December 5, 1972 where the Probate Court ordered that-
... a notice be issued and published pursuant to the provisions of Rule 86 of the Rules of Court, requiring all persons having
money claims against the decedent to file them in the office of the Branch Clerk of this Court."
(d) Nor had the estate tax been determined and paid, or at least provided for, as of December 5, 1972.
(e) The net assets of the estate not having been determined, the legitime of the forced heirs in concrete figures could not be
ascertained.
(f) All the foregoing deficiencies considered, it was not possible to determine whether the legacy of QUEMADA - a fixed share in
a specific property rather than an aliquot part of the entire net estate of the deceased - would produce an impairment of the
legitime of the compulsory heirs.
(g) Finally, there actually was no determination of the intrinsic validity of the will in other respects. It was obviously for this
reason that as late as March 5, 1980 - more than 7 years after the Probate Order was issued the Probate Court scheduled on
March 25, 1980 a hearing on the intrinsic validity of the will.
3. Propriety of certiorari —
Private respondent challenges the propriety of certiorari as a means to assail the validity of the disputed Order of execution. He
contends that the error, if any, is one of judgment, not jurisdiction, and properly correctible only by appeal, not certiorari.
Under the circumstances of the case at bar, the challenge must be rejected. Grave abuse of discretion amounting to lack of
jurisdiction is much too evident in the actuations of the probate court to be overlooked or condoned.
(a) Without a final, authoritative adjudication of the issue as to what properties compose the estate of PASTOR, SR. in the face
of conflicting claims made by heirs and a non-heir (MA. ELENA ACHAVAL DE PASTOR) involving properties not in the name of
the decedent, and in the absence of a resolution on the intrinsic validity of the will here in question, there was no basis for the
Probate Court to hold in its Probate Order of 1972, which it did not, that private respondent is entitled to the payment of the

162
questioned legacy. Therefore, the Order of Execution of August 20, 1980 and the subsequent implementing orders for the
payment of QUEMADA's legacy, in alleged implementation of the dispositive part of the Probate Order of December 5, 1972,
must fall for lack of basis.
(b) The ordered payment of legacy would be violative of the rule requiring prior liquidation of the estate of the deceased, i.e.,
the determination of the assets of the estate and payment of all debts and expenses, before apportionment and distribution of
the residue among the heirs and legatees. (Bernardo vs. Court of Appeals, 7 SCRA 367.)
(c) Neither has the estate tax been paid on the estate of PASTOR, SR. Payment therefore of the legacy to QUEMADA would
collide with the provision of the National Internal Revenue Code requiring payment of estate tax before delivery to any
beneficiary of his distributive share of the estate (Section 107 [c])
(d) The assailed order of execution was unauthorized, having been issued purportedly under Rule 88, Section 6 of the Rules of
Court which reads:
Sec. 6. Court to fix contributive shares where devisees, legatees, or heirs have been in possession. — Where devisees, legatees,
or heirs have entered into possession of portions of the estate before the debts and expenses have been settled and paid and
have become liable to contribute for the payment of such debts and expenses, the court having jurisdiction of the estate may,
by order for that purpose, after hearing, settle the amount of their several liabilities, and order how much and in what manner
each person shall contribute, and may issue execution as circumstances require.
The above provision clearly authorizes execution to enforce payment of debts of estate. A legacy is not a debt of the estate;
indeed, legatees are among those against whom execution is authorized to be issued.
... there is merit in the petitioners' contention that the probate court generally cannot issue a writ of execution. It is not
supposed to issue a writ of execution because its orders usually refer to the adjudication of claims against the estate which the
executor or administrator may satisfy without the necessity of resorting to a writ of execution. The probate court, as such, does
not render any judgment enforceable by execution.
The circumstances that the Rules of Court expressly specifies that the probate court may issue execution (a) to satisfy (debts of
the estate out of) the contributive shares of devisees, legatees and heirs in possession of the decedent's assets (Sec. 6. Rule 88),
(b) to enforce payment of the expenses of partition (Sec. 3, Rule 90), and (c) to satisfy the costs when a person is cited for
examination in probate proceedings (Sec. 13, Rule 142) may mean, under the rule of inclusion unius est exclusion alterius, that
those are the only instances when it can issue a writ of execution. (Vda. de Valera vs. Ofilada, 59 SCRA 96, 108.)
(d) It is within a court's competence to order the execution of a final judgment; but to order the execution of a final order
(which is not even meant to be executed) by reading into it terms that are not there and in utter disregard of existing rules and
law, is manifest grave abuse of discretion tantamount to lack of jurisdiction. Consequently, the rule that certiorari may not be
invoked to defeat the right of a prevailing party to the execution of a valid and final judgment, is inapplicable. For when an
order of execution is issued with grave abuse of discretion or is at variance with the judgment sought to be enforced (PVTA vs.
Honorable Gonzales, 92 SCRA 172), certiorari will lie to abate the order of execution.
(e) Aside from the propriety of resorting to certiorari to assail an order of execution which varies the terms of the judgment
sought to be executed or does not find support in the dispositive part of the latter, there are circumstances in the instant case
which justify the remedy applied for.
Petitioner MA. ELENA ACHAVAL DE PASTOR, wife of PASTOR, JR., is the holder in her own right of three mining claims which are
one of the objects of conflicting claims of ownership. She is not an heir of PASTOR, SR. and was not a party to the probate
proceedings. Therefore, she could not appeal from the Order of execution issued by the Probate Court. On the other hand,
after the issuance of the execution order, the urgency of the relief she and her co-petitioner husband seek in the petition for
certiorari states against requiring her to go through the cumbersome procedure of asking for leave to intervene in the probate
proceedings to enable her, if leave is granted, to appeal from the challenged order of execution which has ordered the
immediate transfer and/or garnishment of the royalties derived from mineral properties of which she is the duly registered
owner and/or grantee together with her husband. She could not have intervened before the issuance of the assailed orders
because she had no valid ground to intervene. The matter of ownership over the properties subject of the execution was then
still being litigated in another court in a reconveyance suit filed by the special administrator of the estate of PASTOR, SR.
Likewise, at the time petitioner PASTOR, JR. Med the petition for certiorari with the Court of Appeals, appeal was not available
to him since his motion for reconsideration of the execution order was still pending resolution by the Probate Court. But in the
face of actual garnishment of their major source of income, petitioners could no longer wait for the resolution of their motion
for reconsideration. They needed prompt relief from the injurious effects of the execution order. Under the circumstances,
recourse to certiorari was the feasible remedy.

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WHEREFORE, the decision of the Court of Appeals in CA G.R. No. SP-11373-R is reversed. The Order of execution issued by the
probate Court dated August 20, 1980, as well as all the Orders issued subsequent thereto in alleged implementation of the
Probate Order dated December 5, 1972, particularly the Orders dated November 11, 1980 and December 17, 1980, are hereby
set aside; and this case is remanded to the appropriate Regional Trial Court for proper proceedings, subject to the judgment to
be rendered in Civil Case No. 274-R.
SO ORDERED.

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G.R. Nos. L-3087 and L-3088 July 31, 1954
In re: Testate Estate of the deceased JOSE B. SUNTAY. SILVINO SUNTAY, petitioner-appellant,
vs.
In re: Intestate Estate of the deceased JOSE B. SUNTAY,
FEDERICO C. SUNTAY, administrator-appellee.
Claro M. Recto for appellant.
Sison and Aruego for appellee.
PADILLA, J.:
This is an appeal from a decree of the Court of First Instance of Bulacan disallowing the alleged will and testament executed in
Manila on November 1929, and the alleged last will and testament executed in Kulangsu, Amoy, China, on 4 January 1931, by
Jose B. Suntay. The value of the estate left by the deceased is more than P50,000.
On 14 May 1934 Jose B. Suntay, a Filipino citizen and resident of the Philippines, died in the city of Amoy, Fookien province,
Republic of China, leaving real and personal properties in the Philippines and a house in Amoy, Fookien province, China, and
children by the first marriage had with the late Manuela T. Cruz namely, Apolonio, Concepcion, Angel, Manuel, Federico, Ana,
Aurora, Emiliano, and Jose, Jr. and a child named Silvino by the second marriage had with Maria Natividad Lim Billian who
survived him. Intestate proceedings were instituted in the Court of First Instance of Bulacan (special proceedings No. 4892) and
after hearing letters of administration were issued to Apolonio Suntay. After the latter's death Federico C. Suntay was
appointed administrator of the estate. On 15 October 1934 the surviving widow filed a petition in the Court of First Instance of
Bulacan for the probate of a last will and testament claimed to have been executed and signed in the Philippines on November
1929 by the late Jose B. Suntay. This petition was denied because of the loss of said will after the filing of the petition and
before the hearing thereof and of the insufficiency of the evidence to establish the loss of the said will. An appeal was taken
from said order denying the probate of the will and this Court held the evidence before the probate court sufficient to prove
the loss of the will and remanded the case to the Court of First Instance of Bulacan for the further proceedings (63 Phil., 793). In
spite of the fact that a commission from the probate court was issued on 24 April 1937 for the taking of the deposition of Go
Toh, an attesting witness to the will, on 7 February 1938 the probate court denied a motion for continuance of the hearing sent
by cablegram from China by the surviving widow and dismissed the petition. In the meantime the Pacific War supervened. After
liberation, claiming that he had found among the files, records and documents of his late father a will and testament in Chinese
characters executed and signed by the deceased on 4 January 1931 and that the same was filed, recorded and probated in the
Amoy district court, Province of Fookien, China, Silvino Suntay filed a petition in the intestate proceedings praying for the
probate of the will executed in the Philippines on November 1929 (Exhibit B) or of the will executed in Amoy, Fookien, China, on
4 January 1931 (Exhibit N).
There is no merit in the contention that the petitioner Silvino Suntay and his mother Maria Natividad Lim Billian are estopped
from asking for the probate of the lost will or of the foreign will because of the transfer or assignment of their share right, title
and interest in the estate of the late Jose B. Suntay to Jose G. Gutierrez and the spouses Ricardo Gutierrez and Victoria Goño
and the subsequent assignment thereof by the assignees to Francisco Pascual and by the latter to Federico C. Suntay, for the
validity and legality of such assignments cannot be threshed out in this proceedings which is concerned only with the probate
of the will and testament executed in the Philippines on November 1929 or of the foreign will allegedly executed in Amoy on 4
January 1931 and claimed to have been probated in the municipal district court of Amoy, Fookien province, Republic of China.
As to prescription, the dismissal of the petition for probate of the will on 7 February 1938 was no bar to the filing of this
petition on 18 June 1947, or before the expiration of ten years.
As to the lost will, section 6, Rule 77, provides:
No will shall be proved as a lost or destroyed will unless the execution and validity of the same be established, and the will is
proved to have been in existence at the time of the death of the testator, or is shown to have been fraudulently or accidentally
destroyed in the lifetime of the testator without his knowledge, nor unless its provisions are clearly and distinctly proved by at
least two credible witnesses. When a lost will is proved, the provisions thereof must be distinctly stated and certified by the
judge, under the seal of the court, and the certificate must be filed and recorded as other wills are filed and recorded.
The witnesses who testified to the provisions of the lost will are Go Toh, an attesting witness, Anastacio Teodoro and Ana
Suntay. Manuel Lopez, who was an attesting witness to the lost will, was dead at the time of the hearing of this alternative
petition. In his deposition Go Toh testifies that he was one of the witnesses to the lost will consisting of twenty-three sheets
signed by Jose B. Suntay at the bottom of the will and each and every page thereof in the presence of Alberto Barretto, Manuel
Lopez and himself and underneath the testator's signature the attesting witnesses signed and each of them signed the
attestation clause and each and every page of the will in the presence of the testator and of the other witnesses (answers to
the 31st, 41st, 42nd, 49th, 50th, 55th and 63rd interrogatories, Exhibit D-1), but did not take part in the drafting thereof

165
(answer to the 11th interrogatory, Id.); that he knew the contents of the will written in Spanish although he knew very little of
that language (answers to the 22nd and 23rd interrogatories and to X-2 cross-interrogatory, Id.) and all he knows about the
contends of the lost will was revealed to him by Jose B. Suntay at the time it was executed (answers to the 25th interrogatory
and to X-4 and X-8 cross-interrogatories, Id.); that Jose B. Suntay told him that the contents thereof are the same as those of
the draft (Exhibit B) (answers to the 33rd interrogatory and to X-8 cross-interrogatory, Id.) which he saw in the office of Alberto
Barretto in November 1929 when the will was signed (answers to the 69th, 72nd, and 74th interrogatories, Id); that Alberto
Barretto handed the draft and said to Jose B. Suntay: "You had better see if you want any correction" (answers to the 81st,
82nd and 83rd interrogatories, Id.); that "after checking Jose B. Suntay put the "Exhibit B" in his pocket and had the original
signed and executed" (answers to the 91st interrogatory, and to X-18 cross-interrogatory, Id.); that Mrs. Suntay had the draft of
the will (Exhibit B) translated into Chinese and he read the translation (answers to the 67th interrogatory, Id.); that he did not
read the will and did not compare it (check it up) with the draft (Exhibit B) (answers to X-6 and X-20 cross-interrogatories, Id.).
Ana Suntay testifies that sometime in September 1934 in the house of her brother Apolonio Suntay she learned that her father
left a will "because of the arrival of my brother Manuel Suntay, who was bringing along with him certain document and he told
us or he was telling us that it was the will of our father Jose B. Suntay which was taken from Go Toh. ..." (p. 524, t. s. n., hearing
of 24 February 1948); that she saw her brother Apolonio Suntay read the document in her presence and of Manuel and learned
of the adjudication made in the will by her father of his estate, to wit: one-third to his children, one-third to Silvino and his
mother and the other third to Silvino, Apolonio, Concepcion and Jose, Jr. (pp. 526-8, 530-1, 542, t. s. n. Id.); that "after Apolonio
read that portion, then he turned over the document to Manuel, and he went away," (p. 528, t. s. n., Id.). On cross-examination,
she testifies that she read the part of the will on adjudication to know what was the share of each heir (pp. 530, 544, t. s. n., Id.)
and on redirect she testifies that she saw the signature of her father, Go Toh, Manuel Lopez and Alberto Barretto (p. 546, t. s.
n., Id.).
Anastacio Teodoro testifies that one day in November 1934 (p. 273, t. s. n., hearing of 19 January 1948), before the last
postponement of the hearing granted by the Court, Go Toh arrived at his law office in the De los Reyes Building and left an
envelope wrapped in red handkerchief [Exhibit C] (p. 32, t. s. n., hearing of 13 October 1947); that he checked up the signatures
on the envelope Exhibit A with those on the will placed in the envelope (p. 33, t. s. n., Id.); that the will was exactly the same as
the draft Exhibit B (pp. 32, 47, 50, t. s. n., Id.).
If the will was snatched after the delivery thereof by Go Toh to Anastacio Teodoro And returned by the latter to the former
because they could not agree on the amount of fees, the former coming to the latter's office straight from the boat (p. 315, t. s.
n., hearing of 19 January 1948) that brought him to the Philippines from Amoy, and that delivery took place in November 1934
(p. 273, t. s. n., Id.), then the testimony of Ana Suntay that she saw and heard her brother Apolonio Suntay read the will
sometime in September 1934 (p. 524, t. s. n., hearing of 24 February 1948), must not be true.
Although Ana Suntay would be a good witness because she was testifying against her own interest, still the fact remains that
she did not read the whole will but only the adjudication (pp. 526-8, 530-1, 542, t. s. n., Id.) and saw only the signature, of her
father and of the witnesses Go Toh, Manuel Lopez and Alberto Barretto (p. 546, t. s. n., Id.). But her testimony on cross-
examination that she read the part of the will on adjudication is inconsistent with her testimony in chief that after Apolonio had
read that part of the will he turned over or handed the document to Manuel who went away (p. 528, t. s. n., Id.).
If it is true that Go Toh saw the draft Exhibit B in the office of Alberto Barretto in November 1929 when the will was signed,
then the part of his testimony that Alberto Barretto handed the draft to Jose B. Suntay to whom he said: "You had better see if
you want any correction" and that "after checking Jose B. Suntay put the "Exhibit B" in his pocket and had the original signed
and executed" cannot be true, for it was not the time for correcting the draft of the will, because it must have been corrected
before and all corrections and additions written in lead pencil must have been inserted and copied in the final draft of the will
which was signed on that occasion. The bringing in for the draft (Exhibit B) on that occasion is just to fit it within the framework
of the appellant's theory. At any rate, all of Go Toh's testimony by deposition on the provisions of the alleged lost will is
hearsay, because he came to know or he learned to them from information given him by Jose B. Suntay and from reading the
translation of the draft (Exhibit B) into Chinese.
Much stress is laid upon the testimony of Federico C. Suntay who testifies that he read the supposed will or the alleged will of
his father and that the share of the surviving widow, according to the will, is two-thirds of the estate (p. 229, t. s. n., hearing of
24 October 1947). But this witness testified to oppose the appointment of a co-administrator of the estate, for the reason that
he had acquired the interest of the surviving widow not only in the estate of her deceased husband but also in the conjugal
property (pp. 148, 205, 228, 229, 231, t. s. n., Id.) Whether he read the original will or just the copy thereof (Exhibit B) is not
clear. For him the important point was that he had acquired all the share, participation and interest of the surviving widow and
of the only child by the second marriage in the estate of his deceased father. Be that as it may, his testimony that under the will
the surviving widow would take two-thirds of the estate of the late Jose B. Suntay is at variance with Exhibit B and the
testimony of Anastacio Teodoro. According to the latter, the third for strict legitime is for the ten children; the third for

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betterment is for Silvino, Apolonio, Concepcion and Jose Jr.; and the third for free disposal is for the surviving widow and her
child Silvino.
Hence, granting that there was a will duly executed by Jose B. Suntay placed in the envelope (Exhibit A) and that it was in
existence at the time of, and not revoked before, his death, still the testimony of Anastacio Teodoro alone falls short of the
legal requirement that the provisions of the lost will must be "clearly and distinctly proved by at least two credible witnesses."
Credible witnesses mean competent witnesses and those who testify to facts from or upon hearsay are neither competent nor
credible witnesses.
On the other hand, Alberto Barretto testifies that in the early part of 1929 he prepared or drew up two mills for Jose B. Suntay
at the latter's request, the rough draft of the first will was in his own handwriting, given to Manuel Lopez for the final draft or
typing and returned to him; that after checking up the final with the rough draft he tore it and returned the final draft to
Manuel Lopez; that this draft was in favor of all the children and the widow (pp. 392-4, 449, t. s. n., hearing of 21 February
1948); that two months later Jose B. Suntay and Manuel Lopez called on him and the former asked him to draw up another will
favoring more his wife and child Silvino; that he had the rough draft of the second will typed (pp. 395, 449 t. s. n., Id.) and gave
it to Manuel Lopez (p. 396, t. s. n., Id.); that he did not sign as witness the second will of Jose B. Suntay copied from the
typewritten draft [Exhibit B] (p. 420, t. s. n., Id.); that the handwritten insertions or additions in lead pencil to Exhibit B are not
his (pp. 415-7 435-6, 457, t. s. n., Id.); that the final draft of the first will made up of four or five pages (p. 400, t. s. n., Id.) was
signed and executed, two or three months after Suntay and Lopez had called on him (pp. 397-8, 403, 449, t. s. n., Id.) in his
office at the Cebu Portland Cement in the China Banking Building on Dasmariñas street by Jose B. Suntay, Manuel Lopez and a
Chinaman who had all come from Hagonoy (p. 398, t. s. n., Id.); that on that occasion they brought an envelope (Exhibit A)
where the following words were written: "Testamento de Jose B. Suntay" (pp. 399, 404, t. s. n., Id.); that after the signing of the
will it was placed inside the envelope (Exhibit A) together with an inventory of the properties of Jose B. Suntay and the
envelope was sealed by the signatures of the testator and the attesting witnesses (pp. 398, 401, 441, 443, 461, t. s. n., Id.); that
he again saw the envelope (Exhibit A) in his house one Saturday in the later part of August 1934, brought by Go Toh and it was
then in perfect condition (pp. 405-6, 411, 440-2, t. s. n., Id.); that on the following Monday Go Toh went to his law office
bringing along with him the envelope (Exhibit A) in the same condition; that he told Go Toh that he would charge P25,000 as
fee for probating the will (pp. 406, 440-2, Id.); that Go Toh did not leave the envelope (Exhibit A) either in his house or in his law
office (p. 407, t. s. n., Id.); that Go Toh said he wanted to keep it and on no occasion did Go Toh leave it to him (pp. 409, 410, t.
s. n., Id.).
The testimony of Go Toh taken and heard by Assistant Fiscal F. B. Albert in connection with the complaint for estafa filed
against Manuel Suntay for the alleged snatching of the envelope (Exhibit A), corroborates the testimony of Alberto Barretto to
the effect that only one will was signed by Jose B. Suntay at his office in which he (Alberto Barretto), Manuel Lopez and Go Toh
took part as attesting witnesses (p. 15, t. s. n., Exhibit 6). Go Toh testified before the same assistant fiscal that he did not leave
the will in the hands of Anastacio Teodoro (p. 26, t. s. n., Exhibit 6). He said, quoting his own words, "Because I can not give him
this envelope even though the contract (on fees) was signed. I have to bring that document to court or to anywhere else
myself." (p. 27, t. s. n., Exhibit 6).
As to the will claimed to have been executed on 4 January 1931 in Amoy, China, the law on the point in Rule 78. Section 1 of the
rule provides:
Wills proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed, and recorded by the
proper Court of First Instance in the Philippines.
Section 2 provides:
When a copy of such will and the allowance thereof, duly authenticated, is filed with a petition for allowance in the Philippines,
by the executor or other person interested, in the court having jurisdiction, such court shall fix a time and place for the hearing,
and cause notice thereof to be given as in case of an original will presented for allowance.
Section 3 provides:
If it appears at the hearing that the will should be allowed in the Philippines, the court shall so allow it, and a certificate of its
allowance, signed by the Judge, and attested by the seal of the courts, to which shall be attached a copy of the will, shall be
filed and recorded by the clerk, and the will shall have the same effect as if originally proved and allowed in such court.
The fact that the municipal district court of Amoy, China, is a probate court must be proved. The law of China on procedure in
the probate or allowance of wills must also be proved. The legal requirements for the execution of a valid will in China in 1931
should also be established by competent evidence. There is no proof on these points. The unverified answers to the questions
propounded by counsel for the appellant to the Consul General of the Republic of China set forth in Exhibits R-1 and R-2,
objected to by counsel for the appellee, are inadmissible, because apart from the fact that the office of Consul General does not
qualify and make the person who holds it an expert on the Chinese law on procedure in probate matters, if the same be

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admitted, the adverse party would be deprived of his right to confront and cross-examine the witness. Consuls are appointed to
attend to trade matters. Moreover, it appears that all the proceedings had in the municipal district court of Amoy were for the
purpose of taking the testimony of two attesting witnesses to the will and that the order of the municipal district court of Amoy
does not purport to probate the will. In the absence of proof that the municipal district court of Amoy is a probate court and on
the Chinese law of procedure in probate matters, it may be presumed that the proceedings in the matter of probating or
allowing a will in the Chinese courts are the a deposition or to a perpetuation of testimony, and even if it were so it does not
measure same as those provided for in our laws on the subject. It is a proceedings in rem and for the validity of such
proceedings personal notice or by publication or both to all interested parties must be made. The interested parties in the case
were known to reside in the Philippines. The evidence shows that no such notice was received by the interested parties residing
in the Philippines (pp. 474, 476, 481, 503-4, t. s. n., hearing of 24 February 1948). The proceedings had in the municipal district
court of Amoy, China, may be likened toe or come up to the standard of such proceedings in the Philippines for lack of notice to
all interested parties and the proceedings were held at the back of such interested parties.
The order of the municipal district court of Amoy, China, which reads as follows:
ORDER:
SEE BELOW
The above minutes were satisfactorily confirmed by the interrogated parties, who declare that there are no errors, after said
minutes were loudly read and announced actually in the court.
Done and subscribed on the Nineteenth day of the English month of the 35th year of the Republic of China in the Civil Section
of the Municipal District Court of Amoy, China.

HUANG KUANG CHENG

Clerk of Court

CHIANG TENG HWA

Judge

(Exhibit N-13, p. 89 Folder of Exhibits.).

does not purport to probate or allow the will which was the subject of the proceedings. In view thereof, the will and the alleged
probate thereof cannot be said to have been done in accordance with the accepted basic and fundamental concepts and
principles followed in the probate and allowance of wills. Consequently, the authenticated transcript of proceedings held in the
municipal district court of Amoy, China, cannot be deemed and accepted as proceedings leading to the probate or allowance of
a will and, therefore, the will referred to therein cannot be allowed, filed and recorded by a competent court of this country.
The decree appealed from is affirmed, without pronouncement as to costs.
Pablo, Bengzon, A. Reyes, Labrador and Concepcion, JJ., concur.

Separate Opinions
PARAS, C.J., dissenting:
As a preliminary statement we may well refer to the case of Maria Natividad Lim Billian, petitioner and appellant, vs. Apolonio
Suntay, Angel Suntay, Manuel Suntay, and Jose Suntay, oppositors and appellees, 63 Phil., 793-797, in which the following
decision was rendered by this Court on November 25, 1936, holding that the will executed by Jose B. Suntay who died in the
City of Amoy, China, on May 14, 1934, was lost under the circumstances pointed out therein, and ordering the return of the
case to the Court of First Instance of Bulacan for further proceedings:
On May 14, 1934, Jose B. Suntay died in the City of Amoy, China. He married twice, the first time to Manuela T. Cruz with whom
he had several children now residing in the Philippines, and the second time to Maria Natividad Lim Billian with whom he had a
son.
On the same date, May 14, 1934, Apolonio Suntay, eldest son of the deceased by his first marriage, filed the latter's intestate in
the Court of First Instance of Manila (civil case No. 4892).
On October 15, 1934, and in the same court, Maria Natividad Lim Billian also instituted the present proceedings for the probate
of a will allegedly left by the deceased.

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According to the petitioner, before the deceased died in China he left with her a sealed envelope (Exhibit A) containing his will
and, also another document (Exhibit B of the petitioner) said to be a true copy of the original contained in the envelope. The
will in the envelope was executed in the Philippines, with Messrs. Go Toh, Alberto Barretto and Manuel Lopez as attesting
witnesses. On August 25, 1934, Go Toh, as attorney-in-fact of the petitioner, arrived in the Philippines with the will in the
envelope and its copy Exhibit B. While Go Toh was showing this envelope to Apolonio Suntay and Angel Suntay, children by first
marriage of the deceased, they snatched and opened it and, after getting its contents and throwing away the envelope, they
fled.
Upon this allegation, the petitioner asks in this case that the brothers Apolonio, Angel, Manuel and Jose Suntay, children by the
first marriage of the deceased, who allegedly have the document contained in the envelope which is the will of the deceased,
be ordered to present it in court, that a day be set for the reception of evidence on the will, and that the petitioner be
appointed executrix pursuant to the designation made by the deceased in the will.
In answer to the court's order to present the alleged will, the brothers Apolonio, Angel, Manuel and Jose Suntay stated that
they did not have the said will and denied having snatched it from Go Toh.
In view of the allegations of the petition and the answer of the brothers Apolonio, Angel, Manuel and Jose Suntay, the
questions raised herein are: The loss of the alleged will of the deceased, whether Exhibit B accompanying the petition is an
authentic copy thereof, and whether it has been executed with all the essential and necessary formalities required by law for its
probate.
At the trial of the case on March 26, 1934, the petitioner put two witnesses upon the stand, Go Toh and Tan Boon Chong, who
corroborated the allegation that the brothers Apolonio and Angel appropriated the envelope in the circumstances above-
mentioned. The oppositors have not adduced any evidence counter to the testimony of these two witnesses. The court, while
making no express finding on this fact, took it for granted in its decision; but it dismissed the petition believing that the
evidence is insufficient to establish that the envelope seized from Go Toh contained the will of the deceased, and that the said
will was executed with all the essential and necessary formalities required by law for its probate.
In our opinion, the evidence is sufficient to establish the loss of the document contained in the envelope. Oppositors' answer
admits that, according to Barretto, he prepared a will of the deceased to which he later become a witness together with Go Toh
and Manuel Lopez, and that this will was placed in an envelope which was signed by the deceased and by the instrumental
witnesses. In court there was presented and attached to the case an open and empty envelope signed by Jose B. Suntay,
Alberto Barretto, Go Toh and Manuel Lopez. It is thus undeniable that this envelope Exhibit A is the same one that contained
the will executed by the deceased-drafted by Barretto and with the latter, Go Toh and Manuel Lopez as attesting witnesses.
These tokens sufficiently point to the loss of the will of the deceased, a circumstance justifying the presentation of secondary
evidence of its contents and of whether it was executed with all the essential and necessary legal formalities.
The trial of this case was limited to the proof of loss of the will, and from what has taken place we deduce that it was not
petitioner's intention to raise, upon the evidence adduced by her, the other points involved herein, namely, as we have
heretofore indicated, whether Exhibit B is a true copy of the will and whether the latter was executed with all the formalities
required by law for its probate. The testimony of Alberto Barretto bears importantly in this connection.
Wherefore, the loss of the will executed by the deceased having been sufficiently established, it is ordered that this case be
remanded to the court of origin for further proceedings in obedience to this decision, without any pronouncement as to the
costs. So ordered
On June 18, 1947, Silvino Suntay, the herein petitioner, filed a petition in the Court of First Instance of Bulacan praying "that an
order be issued (a) either directing the continuation of the proceedings in the case remanded by the Supreme Court by virtue of
its decision in G. R. No. 44276 and fixing a date for the reception of evidence of the contents of the will declared lost, or the
allowance, filing and recording of the will of the deceased which had been duly probated in China, upon the presentation of the
certificates and authentications required by Section 41, Rule 123 (Yu Chengco vs. Tiaoqui supra), or both proceedings
concurrently and simultaneously; (b) that letters of administration be issued to herein petitioner as co-administrator of the
estate of the deceased together with Federico Suntay; and (c) that such other necessary and proper orders be issued which this
Honorable Court deems appropriate in the premises." While this petition was opposed by Federico C. Suntay, son of the
deceased Jose B. Suntay with his first wife, Manuela T. Cruz, the other children of the first marriage, namely, Ana Suntay,
Aurora Suntay, Concepcion Suntay, Lourdes Guevara Vda. de Suntay, Manuel Suntay and Emiliano Suntay, filed the following
answer stating that they had no opposition thereto; "Come now the heirs Concepcion Suntay, Ana Suntay, Aurora Suntay,
Lourdes Guevara Vda. de Suntay, Manuel Suntay, and Emiliano Suntay, through their undersigned attorney, and, in answer to
the alternative petition filed in these proceedings by Silvino Suntay, through counsel, dated June 18, 1947, to this Honorable
Court respectfully state that, since said alternative petition seeks only to put into effect the testamentary disposition and
wishes of their late father, they have no opposition thereto."
After hearing, the Court of First Instance of Bulacan rendered on April 19, 1948, the following decision:

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This action is for the legalization of the alleged will of Jose B. Suntay, deceased.
In order to have a comprehensive understanding of this case, it is necessary to state the background on which the alternative
petition of the herein petitioner Silvino Suntay has been based.
The decision of the Supreme Court (Exhibit O), in re will of the deceased Jose B. Suntay, 63 Phil., 793-797, is hereunder
produced:
(As quoted above)
The above quoted decision of the Supreme Court was promulgated on November 25, 1936 (Exhibit O).
The Clerk of the Court of Court of First Instance of Bulacan notified the parties of the decision on December 15, 1936; and the
case was set for hearing on February 12, 1937, but it was transferred to March 29, 1937 (Exhibit O), on motion of the then
petitioner Maria Natividad Lim Billian (Exhibit F). Again, it was postponed until "further setting" in the order of court dated
March 18, 1937, upon motion of the petitioner (Exhibit H).
In the meantime, the deposition of Go Toh was being sought (Exhibit H).
The hearing of the case was again set for February 7, 1936, by order of the court dated January 5, 1938, upon motion of
Emiliano Suntay and Jose Suntay, Jr. On the same day of the hearing which had been set, the petitioner, then, Maria Natividad
Lim Billian, sent a telegram from Amoy, China, addressed to the Court of First Instance of Bulacan moving for the postponement
of the hearing on the ground that Atty. Eriberto de Silva who was representing her died (Exhibit K). The court, instead of
granting the telegraphic motion for postponement, dismissed the case in the order dated February 7, 1938 (Exhibit L).
On July 3, 1947, the petitioner Silvino Suntay filed a motion for the consolidation of the intestate Estate of the deceased Jose B.
Suntay, Special Proceeding No. 4892 and the Testate Estate of Jose B. Suntay, Special Proceeding No. 4952, which latter case is
the subject of the said alternative petition. The motion for the merger and consolidation of the two cases was granted on July 3,
1947.
That oppositor, Federico C. Suntay, in the Testate Proceeding filed a motion to dismiss the alternative petition on November 14,
1947, which was denied by the court in its resolution of November 22, 1947. The said oppositor not being satisfied with the
ruling of this court denying the motion to dismiss, filed before the Supreme Court a petition for a writ of certiorari with
preliminary injunction, which was dismissed for lack of merit on January 27, 1948.
In obedience to the decision of the Supreme Court (Exhibit O) and upon the alternative petition of Silvino Suntay, and, further,
upon the dismissal of the petition for a writ of certiorari with preliminary injunction, the court was constrained to proceed with
the hearing of the probate of the lost will, the draft of which is Exhibit B, or the admission and recording of the will which had
been probated in Amoy, China.
The evidence for the petitioner, Silvino Suntay, shows that Jose B. Suntay married twice; first to Manuela T. Cruz who died on
June 15, 1920 and had begotten with her Apolonio, now deceased, Concepcion, Angel, Manuel, Federico, Ana, Aurora, Emiliano
and Jose, Jr., all surnamed Suntay, and second, to Maria Natividad Lim Billian with whom he had as the only child Silvino Suntay,
the petitioner herein.
Some time in November 1929, Jose B. Suntay executed his last will and testament in the office of Atty. Alberto Barretto in
Manila, which was witnessed by Alberto Barretto, Manuel Lopez and Go Toh. The will was prepared by said Alberto Barretto
upon the instance of Jose B. Suntay, and it was written in the Spanish language which was understood and spoken by said
testator. After the due execution of the will, that is signing every page and the attestation clause by the testator and the
witnesses in the presence of each other, the will was placed inside the envelope (Exhibit A), sealed and on the said envelope
the testator and the three subscribing witnesses also signed, after which it was delivered to Jose B. Suntay.
A year or so after the execution of the will, Jose B. Suntay together with his second wife Maria Natividad Lim Billian and Silvino
Suntay who was then of tender age went to reside in Amoy, Fookien, China, where he died on May 14, 1934. The will was
entrusted to the widow, Maria Natividad Lim Billian.
Upon the death of Jose B. Suntay on May 14, 1934, Apolonio Suntay, the oldest son now deceased, instituted the Intestate
Proceedings No. 4892, upon the presumption that no will existed. Maria Natividad Lim Billian who remained in Amoy, China,
had with her the will and she engaged the services of the law firm of Barretto and Teodoro for the probate of the will. Upon the
request of the said attorneys the will was brought to the Philippines by Go Toh who was one of the attesting witnesses, and it
was taken to the law office of Barretto and Teodoro. The law firm of Barretto and Teodoro was composed of Atty. Alberto
Barretto and Judge Anastacio Teodoro. The probate of the will was entrusted to the junior partner Judge Anastacio Teodoro;
and, upon the presentation of the sealed envelope to him, he opened it and examined the said will preparatory to the filing of
the petition for probate. There was a disagreement as to the fees to be paid by Maria Natividad Lim Billian, and as she (through

170
Go Toh) could not agree to pay, P20,000 as fees, the will was returned to Go Toh by Judge Anastacio Teodoro after the latter
had kept it in his safe, in his office, for three days.
Subsequently, the will inside the envelope was snatched from Go Toh by Manuel Suntay and Jose, Jr., which fact has been
established in the decision of the Supreme Court at the beginning of this decision. Go Toh could recover the envelope (Exhibit
A) and the piece of cloth with which the envelope was wrapped (Exhibit C).
The Testate Proceeding was filed nevertheless and in lien of the lost will a draft of the will (Exhibit B) was presented as
secondary evidence for probate. It was disallowed by this court through Judge Buenaventura Ocampo, but on appeal the
Supreme Court remanded the case to this court for further proceeding (Exhibit C).
In the meantime, a Chinese will which was executed in Amoy Fookien, China, on January 4, 1931, by Jose B. Suntay, written in
Chinese characters (Exhibit P) was discovered in Amoy, China, among the papers left by Jose B. Suntay, and said will had been
allowed to probate in the Amoy District Court, China, which is being also presented by Silvino Suntay for allowance and
recording in this court.
The said petition is opposed by Federico C. Suntay on the main ground that Maria Natividad Lim Billian and Silvino Suntay have
no more interest in the properties left by Jose B. Suntay, because they have already sold their respective shares, interests and
participations. But such a ground of opposition is not of moment in the instant case, because the proposition involved herein in
the legalization of the lost will or the allowance and recording of the will which had been probated in Amoy, China.
It is now incumbent upon this court to delve into the evidence whether or not Jose B. Suntay, deceased, left a will (the draft of
which is Exhibit B) and another will which was executed and another will which was executed and probated in Amoy, China.
There is no longer any doubt that Jose B. Suntay while he was still residing in the Philippines, had executed a will; such is the
conclusion of the Supreme Court in its decision (Exhibit O). That the will was snatched and it has never been produced in court
by those who snatched it, and consequently considered lost, is also an established fact.
The contention of the oppositor, Federico C. Suntay, is that the will that was executed by Jose B. Suntay in the Philippines
contained provisions which provided for equal distribution of the properties among the heirs; hence, the draft (Exhibit B)
cannot be considered as secondary evidence, because it does not provide for equal distribution, but if favors Maria Natividad
Lim Billian and Silvino Suntay. He relies on the testimony of Atty. Alberto Barretto who declared that the first will which he
drafted and reduced into a plain copy was the will that was executed by Jose B. Suntay and placed inside the envelope (Exhibit
A).
Granting that the first will which Atty. Alberto Barretto had drafted became the will of Jose B. Suntay and it was snatched by,
and, therefore, it had fallen into the hands of, Manuel Suntay and the brothers of the first marriage, it stands to reason that
said Manuel Suntay and brothers would have been primarily interested in the production of said will in court, for obvious
reasons, namely, that they would have been favored. But it was suppressed and "evidence willfully suppressed would be
adverse if produced" (Section 69 (e), Rule 123 of the Rules of Court). The contention, therefore, that the first will which was
drafted by Atty. Barretto was the one placed inside the envelope (Exhibit A) is untenable.
It might be said in this connection that the draft of the will (Exhibit B) has been admitted by Atty. Alberto Barretto as identical in
substance and form to the second draft which he prepared in typewriting; it differs only, according to him, in style. He denied
that the insertions in long hand in the said draft are in his own handwriting; however, Judge Anastacio Teodoro averred that the
said insertions are the handwriting of Atty. Alberto Barretto. But when Atty. Alberto Barretto was asked to show any
manuscript of his for purposes of comparison, he declined to do so alleging that he did not have any document in his possession
showing his handwriting notwithstanding the fact that he was testifying in his own house at 188 Sta. Mesa Boulevard, Manila.
He further testified that the first will be drafted contained four or five pages, but the second draft contained twenty-three
pages; that he declared in one breath that he did not read the will any more when it was signed by the testator and the
attesting witnesses because it would take up much time, and in the same breath he declared that he checked it before it was
signed; and that he destroyed the draft of the first will which was in his own handwriting, but he delivered the draft of the
second will which he prepared to Jose B. Suntay in the presence of Manuel Lopez, now deceased.
Whether or not the final plain copy of the draft of the will (Exhibit B) was executed by the testator, Jose B. Suntay, and attested
by the subscribing witnesses, Atty. Alberto Barretto, Manuel Lopez and Go Toh, is the pivotal point in this instant case. Judge
Anastacio Teodoro testified that he opened the sealed envelope when it was given to him by Go Toh preparatory to the
presentation of the petition for the probate of the said will. As the lawyer entrusted with that task, he had to examine the will
and have it copied to be reproduced or appended to the petition. He could not do otherwise if he is worth salt as a good
lawyer; he could not perform the stunt of "blind flying" in the judicial firmament. Every step must be taken with certainty and
precision under any circumstances. He could not have talked about the attorney's fees with Go Toh, unless he has not
examined the will beforehand. And, declaring that it was the exact draft of the will that was inside the envelope (Exhibit A), the
testimony of Atty. Alberto Barretto to the contrary notwithstanding.

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The testimony of Judge Anastacio Teodoro is corroborated by Go Toh, one of the attesting witnesses, in his deposition (Exhibit
D-1).
Ana Suntay, one of the heirs and who would be affected adversely by the legalization of the will in question, also testified on
rebuttal that she saw the original will in the possession of Manuel Suntay, immediately after the snatching. She read it and she
particularly remembers the manner in which the properties were to be distributed. Exhibit B was shown to her on the witness
stand and she declared that the provision regarding the distribution of the properties in said Exhibit B is the same as that
contained in the original will. Said testimony of Ana Suntay, therefore, belies the testimony of Atty. Alberto Barretto.
With respect to the proof of lost or destroyed will, Section 6 of Rule 77 provides as follows:
"No will shall be proved as a lost or destroyed will unless the execution and validity of the same be established, and the will is
proved to have been in existence at the time of the death of the testator, or it is shown to have been fraudulently or
accidentally destroyed in the lifetime of the testator without his knowledge, nor unless its provisions are clearly and distinctly
proved by at least two credible witnesses. When a lost will is proved, the provisions thereof must be distinctly stated and
certified by the judge, under the seal of the court, and the certificate must be filed and recorded as other wills are filed and
recorded."
Section 8 of the same Rule provides as follows:
"If it appears at the time fixed for the hearing that the subscribing witnesses are dead or insane, or that none of them resides in
the Philippines the court may admit the testimony of other witnesses to prove the sanity of the testator, and the due execution
of the will; and as evidence of the due execution of the will, it may admit proof of the handwriting of the testator and of the
subscribing witnesses, or any of them."
Manuel Lopez as one of the subscribing witnesses is dead. Atty. Alberto Barretto and Go Toh are still living. The former testified
during the hearing, while Go Toh's deposition was introduced in evidence which was admitted. In the absence of the testimony
of Manuel Lopez, deceased, the testimony of Judge Anastacio Teodoro and Ana Suntay was received.
It is an established fact that the will, draft of which is Exhibit B, was lost or destroyed; that it was executed and valid and that it
existed at the time of the death of Jose B. Suntay. These circumstances also apply to the will (Exhibit P) which was executed in
Amoy, China.
The contents of the Chinese will is substantially the same as the draft (Exhibit B). Granting that the will executed in the
Philippines is non-existent as contended by the oppositor, although the findings of this court is otherwise, the will executed and
probated in China should be allowed and recorded in this court. All the formalities of the law in China had been followed in its
execution, on account of which it was duly probated in the Amoy District Court. There is no cogent reason, therefore, why it
should not be admitted and recorded in this jurisdiction.
The said will (Exhibit P) in Chinese characters is presented as an alternate in case the will executed in the Philippines would not
be allowed to probate, or as a corroborative evidence that the will, the draft of which is Exhibit B, has been duly executed in the
Philippines by Jose B. Suntay.
Rule 78 of the Rules of Court covers the allowance of will proved outside of the Philippines and administration of estate
thereunder.
Section 1 of said rule provides:
"Wills proved and allowed in the United States, or any state or territory thereof, or in foreign country, according to the laws of
such state, territory, or country, may be allowed, filed, and recorded by the proper Court of First Instance in the Philippines."
Section 2 of the same rule provides:
"When a copy of such will and the allowance thereof, duly authenticated, is filed with a petition for allowance in the
Philippines, by the executor or other person interested, in the court having jurisdiction, such court shall fix a time and place for
the hearing, and cause notice thereof to be given as in case of an original will presented for allowance."
This court has delved deep into the evidence adduced during the hearing with that penetrating scrutiny in order to discovery
the real facts; it had used unsparingly the judicial scapel; and it has winnowed the evidenced to separate the grain from the
chaff. All the facts lead to the inevitable conclusion that Jose B. Suntay, in his sound and disposing mind and not acting under
duress or undue influence, executed the will which is lost, the draft of which is Exhibit B, with all the necessary formalities
prescribed by law. He, likewise, executed the second will (Exhibit P) in Amoy, China, which has been duly probated in Amoy
District Court,-a corroborative evidence that the testator really executed the will. Copies of the said wills duly certified and
under the seal of the court are appended hereto, marked Exhibits B and P, and they form part of this decision.

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In view of the foregoing considerations, the court is of the opinion and so declares that the draft of the will (Exhibit B) is, to all
legal intents and purposes, and testament of the deceased Jose B. Suntay. With costs against the oppositor, Federico C. Suntay.
Oppositor Federico C. Suntay filed on May 20, 1948, a motion for new trial and to set aside the decision rendered on April 19,
1948, to which the petitioner filed an opposition, followed by a reply filed by the oppositor and an answer on the part of the
petitioner. Without reopening the case and receiving any new or additional evidence, the Court of First Instance of Bulacan, on
September 29, 1948, promulgated the following resolution setting aside his first decision and disallowing the wills sought to be
probated by the petitioner in his alternative petition filed on June 18, 1947:
This is a motion for new trial and to set aside the decision legalizing the will of Jose B. Suntay and allowing and recording
another will executed by him in Amoy, China.
By virtue of this motion, this court is constrained to go over the evidence and the law applicable thereto with the view of
ascertaining whether or not the motion is well founded. Both parties have presented extensive memoranda in support of their
respective contentions.
This court has gone over the evidence conscientiously, and it reiterates its findings of the same facts in this resolution, whether
or not the facts established by the petitioner, Silvino Suntay, warrant the legalization of the lost will and the allowance and
recording of the will that was executed in Amoy, China, is therefore, the subject of this instant motion.
A. As to the legalization of the Lost Will. — There is no question in the mind of this court that the original will which Jose B.
Suntay, deceased executed in the Philippines in the year 1929 was lost (Exhibit O, Decision of the Supreme Court). The evidence
adduced by the petitioner during the hearing has established through the testimony of Judge Anastacio Teodoro and that of Go
Toh (an attesting witness) that the will was executed by Jose B. Suntay, deceased, with all the formalities required by law. For
the purpose of legalizing an original and existing will, the evidence on record is sufficient as to the execution and attesting in
the manner required by law.
Section 8 of Rule 77 provides as follows:
"SEC. 8. Proof when witnesses dead or insane or do not reside in the Philippines. — If it appears at the time fixed for the hearing
that the subscribing witnesses are dead or insane, or that none of them resides in the Philippines, the court may admit the
testimony of other witnesses to prove the sanity of the testator, and the due execution of the will; and as evidence of the
execution of the will, may admit proof of the handwriting of the testator and of the subscribing witnesses, or any of them."
Section 11 of said rule also provides as follows:
"SEC. 11. Subscribing witnesses produced or accounted for where contest. — If the will is contested, all the subscribing
witnesses present in the Philippines and not insane, must be produced and examined, and the death, absence, or insanity of
any of them must be satisfactorily shown to the court. If all or some of the subscribing witnesses are present in the Philippines,
but outside the province where the will has been filed, their deposition must be taken. If all or some of the subscribing
witnesses produced and examined testify against the due execution of the will, or do not remember having attested to it, or are
otherwise of doubtful credibility, the will may be allowed if the court is satisfied from the testimony of other witnesses and
from all the evidence presented that the will was executed and attested in the manner required by law."
The three attesting witnesses were Manuel Lopez, deceased Alberto Barretto and Go Toh. The last two witnesses are still living;
the former testified against and the latter in favor. In other words, the attesting witness, Go Toh, only, testified in his deposition
in favor of the due execution of the will. Hence, the petitioner presented another witness, Judge Anastacio Teodoro, to
establish and prove the due execution of the said will. Ana Suntay was also presented as a witness in rebuttal evidence. The
testimony of Go Toh in his deposition as an attesting witness, coupled with the testimony of Judge Anastacio Teodoro who was
able to examine the original will that was executed by Jose B. Suntay, deceased, when it was given to him by Go Toh for the
purpose of filing the petition in court for its legalization, and could recognize the signatures of the testator as well as of the
three attesting witnesses on the said original will is sufficient to convince the court that the original will was executed by the
deceased Jose B. Suntay with all the formalities required by law. The original will, therefore, if it was presented in court to
probate would be allowed to all legal intents and purposes. But it was not the original will that was presented, because it was
lost, but an alleged draft (Exhibit B) of the said original will which does not bear the signature of the testator and any of the
attesting witness. The original will was duly executed with all the formalities required by law, but it was unfortunately lost; and
the curtain falls for the next setting.
The Court is now confronted with the legalization of the lost will — whether or not the draft (Exhibit B) should be admitted as
secondary evidence in lieu of the lost will and allowed to probate.
Section 6. Rule 77 provides as follows:

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"SEC. 6. Proof of lost or destroyed will — Certificate thereupon. — No will shall be proved as a lost will or destroyed will unless
the execution and validity of the same be established, and the will is proved to have been in existence at the time of the death
of the testator, or is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator without his
knowledge, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses. When a lost will is
proved, the provisions thereof must be distinctly stated and certified by the Judge, under the seal of the court and the
certificate must be filed and recorded as other wills are filed and recorded." (Emphasis Court's)
From the above quoted provision of the law, it is clear that the petitioner should not only establish the execution and validity of
the will, its existence at the time of the death of the testator or its fraudulent and accidental destruction in the lifetime of the
testator without his knowledge, but also must prove its provisions clearly and distinctly by at least two credible witnesses. The
exact language of the clause in the above quoted provision of the law is "nor unless its provisions are clearly and distinctly
proved by at least two credible witnesses." The legalization of a lost will is not so easy, therefore, as that of an original will. The
question, therefore, is boiled down to, and projected on the screen, in a very sharp focus; namely, the execution and validity
must be established and the provisions must be clearly and distinctly proved by at least credible witnesses.
Granting that the execution and validity of the lost will have been established through the testimony of Judge Anastacio
Teodoro and Go Toh, and perhaps superficially by the rebuttal witness, Ana Suntay, does it follow that the provisions of the lost
will have been clearly and distinctly proved by at least two credible witnesses? A careful review of the evidence has revealed
that at most the only credible witness who testified as to the provisions of the will was Judge Anastacio Teodoro, and yet he
testified on the provisions of the lost will with the draft (Exhibit B) in his hands while testifying. It may be granted, however,
that with or without the draft of the will (Exhibit B) in his hands, he could have testified clearly and distinctly on the provisions
of the said lost will, because he had kept the will in his safe, in his office, for three days, after opening it, and he is well versed in
Spanish language in which the will as written. But did the attesting witness Go Toh, testify in his deposition and prove clearly
and distinctly the provisions of the lost will? He did not, and he could not have done so even if he tried because the original will
was not read to him nor by him before or at the signing of the same. It was written in Spanish and he did not and does not
understand the Spanish language. Neither was there any occasion for him to have the contents of the said will, after its
execution and sealing inside the envelope (Exhibit A), read to him because it was opened only when Judge Teodoro had
examined it and then subsequently snatched from Go Toh. Ana Suntay on rebuttal did not, likewise, prove clearly and distinctly
the provisions of the said lost will because she has not had enough schooling and she does possess adequate knowledge of the
Spanish language as shown by the fact that she had to testify in Tagalog on the witness standing.
It is evident, therefore, that although the petitioner has established the execution and validity of the lost will, yet he had not
proved clearly and distinctly the provisions of the will by at least two credible witnesses.
B. As to the Allowance and Recording of the will Executed in Amoy, China. — Jose B. Suntay, while he was residing in China
during the remaining years of his life, executed also a will, written in Chinese characters, the translation of which is marked
Exhibit P. It was allowed to probate in the District Court of Amoy, China. The question is whether or not the said will should be
allowed and recorded in this jurisdiction.
Section 1 of Rule 78 provides as follows:
"SEC. 1. Will proved outside Philippines any be allowed here. — Will proved and allowed in the United States, or any state or
territory thereof, or in a foreign country, according to the laws of such state, territory, or country, may be allowed, filed, and
recorded by the proper court of First Instance in the Philippines."
Section 2 of the same Rule also provides:
"SEC. 2. Notice of hearing for allowance. — When a copy of such will and the allowance thereof, duly authenticated, is filed with
a petition for allowance in the Philippines by the executor or other persons interested, in the Court having jurisdiction, such
court shall fix a time and place for the hearing, and cause notice thereof to be given as in case of an original will presented for
allowance."
Sections 41 and 42 of Rule 123 provides as follows:
"SEC. 41. Proof of Public or official record. — An official record or an entry therein, when admissible for any purpose, may be
evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his
deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the
office in which the record is kept is within the United States or its territory, the certificate may be made by a judge of a court of
record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made
by any public officer having a seal of the office and having official duties in the district or political subdivision in which the
record is kept, authenticated by the seal of his office. If the office in which the record is kept is in a foreign country, the
certificate may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent or by any

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officer in the foreign service of the United States stationed in the foreign country in which the record is kept, and authenticated
by the seal of his office."
F. "SEC. 42. What attestation of copy must state. — Whenever a copy of writing is attested for the purpose of evidence, the
attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may
be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having
a seal, under the seal of such court."
In the case of Yu Changco vs. Tiaoqui, 11 Phil. 598, 599, 600, our Supreme Court said:
"Section 637 of the Code of Civil Procedure says that will proved and allowed in a foreign country, according to the laws of such
country, may be allowed, filed, and recorded in the Court of First Instance of the province in which the testator has real or
personal estate on which such will may operate; but section 638 requires that the proof of the authenticity of a will executed in
a foreign country must be duly "authenticated". Such authentication, considered as a foreign judicial record, is prescribed by
section 304, which requires the attestation of the clerk or of the legal keeper of the records with the seal of the court annexed,
if there be a seal, together with a certificate of the chief judge or presiding magistrate that the signature of either of the
functionaries attesting the will is genuine, and, finally, the certification of the authenticity of the signature of such judge or
presiding magistrate, by the ambassador, minister, consul, vice consul or consular agent of the United States in such foreign
country. And, should the will be considered, from an administrative point of view, as a mere official document 'of a foreign
country', it may be proved, 'by the original, or by a copy certified by the legal keeper thereof, with a certificate, under the seal
of the country or sovereign, that the document is a valid and subsisting document of such country, and that the copy is duly
certified by the officer having the legal custody of the original. (Sec. 313, par. 8)."
In the case of Fluemer vs. Hix, 54 Phil. 610, 611, 612, and 613, our Supreme Court said:
"It is the theory of the petitioner that the alleged will was executed in Elkins, West Virginia, on November 3, 1925, by Hix who
had his residence in that jurisdiction, and that the laws of West Virginia govern. To this end, there was submitted a copy of
section 3868 of Acts 1882, c. 84 as found in West Virginia Code, Annotated, by Hogg, Charles E., Vol. 2, 1914, p. 1690, and as
certified to by the Director of the National Library. But this was far from compliance with the law. The laws of a foreign
jurisdiction do not prove themselves in our courts. The courts of the Philippine Islands are not authorized to take judicial notice
of the laws of the various States of the American Union. Such laws must be proved as facts. (In re Estate of Johnson (1918), 39
Phil., 156.) Here the requirements of the law were not met. There was not showing that the book from which an extract was
taken was printed or published under the authority of the State of West Virginia, as provided in section 300 of the Code of Civil
Procedure. Nor was the extract from the law attested by the certificate of the officer having charge of the original under the
seal of the State of West Virginia, as provided in section 301 of the Code of Civil Procedure. No evidence was introduced to
show that the extract from the laws of West Virginia was in force at the time the alleged will was executed.
"It was also necessary for the petitioner to prove that the testator had his domicile in West Virginia and not in the Philippine
Islands. The only evidence introduced to establish this fact consisted of the recitals in the alleged will and the testimony of the
petitioner.
"While the appeal was pending submission in this court, the attorney for the appellant presented an unverified petition asking
the court to accept as part of the evidence the documents attached to the petition. One of these documents discloses that a
paper writing purporting to be the last will and testament of Edward Randolph Hix, deceased, was presented for probate on
June 8, 1929, to the clerk of Randolph County, State of West Virginia, in vacation, and was duly proven by the oaths of Dana
Vansley and Joseph L. Madden, the subscribing witnesses thereto, and ordered to be recorded and filed. It was shown by
another document that in vacation, on June 8, 1929, the clerk of court of Randolph County, West Virginia, appointed Claude E.
Maxwell as administrator, cum testamento annexo, of the estate of Edward Randolph Hix, deceased ... However this may be no
attempt has been made to comply with the provisions of sections 637, 638, and 639 of the Code of Civil Procedure, for no
hearing on the question of the allowance of a will said to have been proved and allowed in West Virginia has been requested. ...
."
Granting that the will of Jose B. Suntay which was executed in Amoy, China, was validly done in accordance with the law of the
Republic of China on the matter, is it necessary to prove in this jurisdiction the existence of such law in China as a prerequisite
to the allowance and recording of said will? The answer is in the affirmative as enunciated in Fluemer vs. Hix, supra, and in
Yanez de Barnuevo vs. Fuster, 29 Phil., 606. In the latter case, the Supreme Court said:
"A foreign law may be proved by the certificate of the officer having in charge of the original, under the seal of the state or
country. It may also be proved by an official copy of the same published under the authority of the particular state and
purporting to contain such law. (Secs. 300 and 301, Act No. 190.), (Syllabus.)
The provisions of section 300 and 301 of the Code of Civil Procedure (Act No. 190) are as follows:

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"SEC. 300. Printed laws of the State or Country. — Books printed or published under the authority of the United States, or one
of the States of the United States, or a foreign country, and purporting to contain statutes, codes, or other written law of such
State or country or proved to be commonly admitted in the tribunals of such State or country an evidence of the written law
thereof, are admissible in the Philippine Islands are evidence of such law."
"SEC. 301. Attested copy of foreign laws. — A copy of the written law or other public writing of any state or country, attested by
the certificate of the officer having charge of the original, under the seal of the state or country, is admissible as evidence of
such law or writing."
The petitioner has presented in evidence the certification of the Chinese Consul General, Tsutseng T. Shen, of the existence of
the law in China (Exhibit B-3), relative to the execution and probate of the will executed by Jose B. Suntay in Amoy, China
(Exhibit P). Is that evidence admissible, in view of the provisions of Sections 41 and 42 of the Rules of the Rules of Court. Is the
said certification of the Chinese Consul General in the Philippines a substantial compliance with the provisions of the above
mentioned section 41 and 42 of our Rules of Court?
This court has its doubts as to the admissibility in evidence of the Chinese Consul General in the Philippines of the existence of
the laws of Republic of China relative to the execution and probate of a will executed in China. Such law may exist in China, but
—
"An official record or an entry therein, when admissible for any purpose, may be evidence by an official publication thereof or
by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not
kept in the Philippines, with a certificate that such officer has the custody. ... If the office in which the record is kept is in a
foreign country, the certificate may be made by a secretary of embassy or legation, consul general, consul, vice consul, or
consular agent or by any officer in the foreign service of the United States stationed in the foreign country in which the record
is kept, and authenticated by the seal of his office." (Sec. 41 of Rule 123.)
The law of the Republic of China is a public or official record and it must be proved in this jurisdiction through the means
prescribed by our Rules of Court. It is, therefore, obvious that the Chinese Counsel General in the Philippines who certified as to
the existence of such law is not the officer having the legal custody of the record, nor is he a deputy of such officer. And, if the
office in which the record is kept is in a foreign country, the certificate may be made by a secretary of embassy or legation,
consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the United States stationed in
the foreign country in which the record is kept, and authenticated by the seal of his office.
It is clear, therefore, that the above provisions of the Rules of Court (Rule 123, sec. 41) not having been complied with, the
doubt of this court has been dissipated, and it is of the opinion and so holds that the certification of the Chinese Consul General
alone is not admissible as evidence in the jurisdiction.
The evidence of record is not clear as to whether Jose B. Suntay, who was born in China, but resided in the Philippines for a long
time, has become a Filipino citizen by naturalization, or he remained a citizen of the Republic of China. The record does not,
likewise, show with certainty whether or not he had changed his permanent domicile from the Philippines to Amoy, China. His
change of permanent domicile could only be inferred. But the question of his permanent domicile pales into insignificance in
view of the overtowering fact that the law of China pertinent to the allowance and recording of the said will in this jurisdiction
has been satisfactorily established by the petitioner.
Both the petitioner and the oppositor have extensively urged in their respective memorandum and in the oral argument in
behalf of the oppositor the question of estoppel. The consideration of the points raised by them would open the door to the
appreciation of the intrinsic validity of the provisions of the will which is not of moment at the present stage of the proceeding.
While the probate of a will is conclusive as to the compliance with all formal requisites necessary to the lawful execution of the
will, such probate does not affect the intrinsic validity of the provisions of the will. With respect to the latter the will in
governed by the substantive law relative to descent and distribution. (In re Johnson, 39 Phil., 157).
IN VIEW OF THE FOREGOING, and upon reconsideration, the previous decision rendered in this case allowing the will (Exhibit B)
and allowing and recording the foreign will (Exhibit P) is set aside; and this court is of the opinion and so holds that the said two
wills should be, as they are hereby disallowed. Without special pronouncement as to costs.
It is very significant that in the foregoing resolution, the Court of First Instance of Bulacan "reiterates its finding of the same
facts in this resolution," and merely proceeds to pose the sole question "whether or not the facts established by the petitioner,
Silvino Suntay, warrant the legalization of the lost will and allowance and recording of the will that was executed in Amoy,
China." The somersault executed by the trial court is premised on the ground that "although the petitioner has established the
execution and validity of the lost will, yet he has not proved clearly and distinctly the provisions of the will by the least two
credible witnesses"; and that, assuming that the will of Jose B. Suntay executed in Amoy, China, was in accordance with the law
of the Republic of China, the certification of the Chinese Consul General in the Philippines as the existence of such law is not
admissible evidence in this jurisdiction. In effect the resolution on the motion for reconsideration promulgated by the trial

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court, and the decision of the majority herein, adopt the position that the testimony of Judge Anastacio Teodoro as to the
provisions of the lost will, while credible and perhaps sufficient in extent, is not corroborated by the witnesses Go Toh and Ana
Suntay and, therefore, falls short of the requirement in section 6, Rule 77, of the Rules of Court that the provisions of the lost
will must be "clearly and distinctly proved by at least two witnesses." That this requirement was obviously construed, to mean
that the exact provisions are to be established, may be deduced from the following dialogue between his Honor, Judge
Potenciano Pecson, and attorney Teofilo Sison, new counsel for oppositor Federico C. Suntay, who appeared for the first time at
the ex parte hearing of the oppositor's motion for new trial on September 1, 1949:
COURT: However, Rule 77, Section 6, provides in proving a lost will, the provisions of the lost will must be distinctly stated and
certified by the Judge.
ATTY. TEOFILO SISON: Yes, Your Honor.
COURT: That presupposes that the judge could only certify to the exact provisions of the will from the evidence presented.
ATTY. TEOFILO SISON: That is our contention, provided that provision is clearly established by two credible witnesses so that
the Court could state that in the decision, we agree, that is the very point.
(t. s. n. 75, Session of Sept. 1, 1948)
The sound rule, however, as we have found it to be, as to the degree of proof required to establish the contents of a lost or
destroyed will, is that there is sufficient compliance if two witnesses have substantiated the provisions affecting the disposition
of the testator's properties; and this is especially necessary to prevent the "perpetration of fraud by permitting a presumption
to supply the suppressed proof," to keep a wrong-doer from utilizing the rule as his "most effective weapon," or to avoid the
enjoyment of a "premium from the rascality of one whose interests might suggest the destruction of a will."
Section 1865 of the Code requires that the provisions of a lost will must be clearly and distinctly proved by at least two credible
witnesses before it can be admitted to probate; but this section must receive a liberal construction (Hook vs. Pratt, 8 Hun. 102-
109) and its spirit is complied with by holding that it applies only to those provisions which affect the disposition of the testator's
property and which are of the substance of the will.
The allegations of the contents of the will are general, and under ordinary circumstances, would be in sufficient; but the fact
alleged, if proven as alleged, would certainly authorize the establishment of the will so far as its bequests are concerned. To
require that a copy of the will or the language of the bequests, in detail, should be pleaded, where no copy has been preserved,
and where the memory of the witnesses does not hold the exact words, would not only deny the substance for mere form, but
would offer a premium upon the rascality of one whose interests might suggest the destruction of a will. As said in Anderson vs.
Irwin, 101 Ill. 411: "The instrument in controversy having been destroyed without the fault of the defendant in error ... and
there not appearing to be any copy of it in existence, it would be equivalent to denying the complainant relief altogether to
require her to prove the very terms in which it was conceived. All that could reasonably be required of her under the
circumstances could be to show in general terms the disposition which the testator made of his property by the instruments;
that it purported to be his will and was duly attested by the requisite number of witnesses." In Allison vs. Allison, 7 Dana 91, it
was said in speaking of the character and extent of proof required in such a case:" nor is there any just ground to object to the
proof because the witnesses have not given the language of the will or the substance thereof. They have given the substance of
the different devises as to the property or interest devised, and to whom devised and we would not stop, in the case of a
destroyed will, to scan with rigid scrutiny the form of the proof, provided we are satisfied of the substance of its provisions."
(Jose vs. Casler 139 Ind. 392, 38 N. E. 812).
The evidence in the case falls short of establishing the existence of such a writing, except as it may be presumed, under the
maxim Omnia preasumuntur in odium spoliateris." There was evidence tending to show that the second will of Anne Lambie
was in the possession of Francis Lambie, and that it came to the hands of the proponents, warranting the inference that it has
been suppressed or destroyed. If from this evidence the jury found such paper destroyed the law permits the presumption that
it was legally drawn and executed, notwithstanding the terms of the statute, which requires the revoking instrument to be
formally executed. If a will be lost, secondary evidence may be given of its contents; if suppressed or destroyed, the same is true;
and, if necessary the law will prevent the perpetration of a fraud by permitting a presumption to supply the suppressed proof.
We cannot assent to the proposition that the statute is so right as to be the wrongdoer's most effective weapons. The
misconduct once established to the satisfaction of the jury, it is no hardship to the wrongdoer to say. "Produce the evidence in
your possession, or we will presume that your opponent's contention is true." When one deliberately destroys, or purposely
induces another to destroy, a written instrument subsequently become a matter of judicial inquiry between the spoliator and an
innocent party, the latter will not be required to make strict proof of the contents of such instrument in order to establish a right
founded thereon. Brook, Leg. Max. 576, Preston vs. Preston, 132, Atl. 55, 61. (Re Lambie's Estate, 97 Mich, 55,56 N. W. 225)
Judged from the standard set forth in the foregoing authorities, and bearing in mind that the circumstances of this case lead to
the only conclusion that the loss of the will in question is of course imputable to those whose interests are adverse to the

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petitioner and the widow Lim Billian, we have no hesitancy in holding the view that the dispositions of the properties left by the
deceased Jose B. Suntay is provided in his will which was lost or snatched in the manner recited in the decision of this Court in
the case of Lim Billian vs. Suntay, 63 Phil., 798-797, had been more than sufficiently proved by the testimony of Judge Anastacio
Teodoro, Go Toh, and Ana Suntay, supported conclusively by the draft of the lost will presented in evidence as Exhibit "B", and
even by the testimony of oppositor Federico C. Suntay himself.
It is to be recalled that the trial Judge, in his first decision of April 19, 1948, made the following express findings with respect to
the testimony of Judge Teodoro: "Judge Anastacio Teodoro testified that he opened the sealed envelope when it was given to
him by Go Toh preparatory to the presentation of the petition for the probate of the said will. As the lawyer entrusted with that
task, he had to examine the will and have it copied to be reproduced or appended to the petition. He could not do otherwise if
he is worth his salt as a good lawyer. He could not perform the stunt of "blind flying" in the judicial firmament. Every step must
be taken with certainty and precision under any circumstances. He could not have talked about the attorney's fees with Go Toh,
unless he has not examined the will beforehand. And, when he was shown Exhibit B, he did not hesitate in declaring that it was
the exact draft of the will that was inside the envelope (Exhibit A), the testimony of Atty. Alberto Barretto to the contrary
notwithstanding."
We should not forget, in this connection, that in the resolution on the motion for reconsideration the trial Judge reiterated the
findings in his decision, although as regards the testimony of Judge Teodoro admittedly "the only credible witness who testified
as to the provisions of the will," he observed that Judge Teodoro had the draft Exhibit "B" in his hands while testifying. We
cannot see any justifying for the observation, assuming that Judge Teodoro consulted the draft, since even the trial Judge
granted that he "could have testified clearly and distinctly on the provisions of the said lost will, because he had kept the will in
his safe, in his office, for three days, after opening it, and he is well versed in Spanish language in which the will was written." As
a matter of fact, however, it is not true that Judge Teodoro had the draft in question before him while testifying as may be seen
from the following passages of the transcript:
Q. And, have you read that will which was inside this envelope, Exhibit A? — "A. Yes.
Q. Do you remember more or less the contents of the will?
ATTY. FERRIN: With our objection, the best evidence is original will itself, Your Honor.
ATTY. RECTO: We are precisely proving by means of secondary evidence, the contents of the will, because according to the
Supreme Court, and that is a fact already decided, that the will of Jose B. Suntay was lost and that is res adjudicata.
COURT: Witness may answer.
WITNESS: I remember the main features of the will because as I said I was the one fighting for the postponement of the hearing
of the intestate case because I was asked by Don Alberto Barretto to secure the postponement until the will that was executed
by the deceased is sent here by the widow from China, with whom we communicated with several letters, and when the will
arrived. I had to check the facts as appearing in the will, and examined fully in connection with the facts alleged in the intestate,
and there was a striking fact in the intestate that Apolonio Suntay has..
ATTY. FERRIN: (Interrupting) May we ask that the witness answer categorically the questions of Atty. Recto, it seems that the
answers of the witness are kilometric ...
ATTY. RECTO: Sometimes the question cannot be answered fully unless the witness would relate and give all the facts.
COURT: The Attorney for the Administrator may move for the striking out of any testimony that is not responsive to the
question.
ATTY. FERRIN: That is why, our objection, the answer is out of the question.
COURT: Atty. Recto may propound another question.
ATTY. RECTO: I heard the witness was saying something and he has not finished the sentence, and I want to ask the Court just
to allow the witness to finish his sentence.
COURT: You may finish.
WITNESS: "A. There was a sentence, the point I was trying to check first was whether the value of the estate left by the
deceased was SIXTY THOUSAND PESOS (P60,000.00) as Apolonio Suntay made it appear in his petition, and when I looked at the
original will, I found out that it was several hundred thousand pesos, several thousands of pesos, hundreds of pesos, that was
very striking fact to me because the petition for intestate was for SIXTY THOUSAND PESOS (P60,000.00), and I came to know
that it was worth more than SEVEN HUNDRED THOUSAND (P700,000.00) PESOS.

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Q. Do you remember, Judge, the disposition of the will, the main disposition of the will? — "A. Yes, because our client were the
widow, Maria Natividad Lim Billian, and his son, Silvino, the only son in the second marriage, that was very important for me to
know.
Q. How were the properties distributed according to that will?- "A. The properties were distributed into three (3) parts, one
part which we call legitima corta, were equally distributed to the ten (10) children, nine (9) in the first marriage, and one (1) in
the second marriage with Maria Natividad Lim Billian. The other third, the betterment was given to four (4) children,
Concepcion, and Apolonio getting a quiet substantial share in the betterment, around SIXTY THOUSAND (P60,000.00) for
Concepcion, Apolonio the amount of SEVENTY THOUSAND (70,000,00) PESOS or little over, and then about ONE HUNDRED
THOUSAND (P100,000.00) PESOS of the betterment in favor of Silvino, the minor of the second marriage, and to Jose equal to
Concepcion.
Q. So the betterment, as I understand from you went to four (4) children?-"A. Yes.
Q. Silvino in the second marriage, Concepcion, Apolonio and Jose in the first marriage? — " A. Yes.
Q. What about the free disposal?-" A. The free disposal was disposed in favor of the widow, Maria Natividad Lim Billian and
Silvino, his minor son in equal parts..
Q. What about, if you remember, if there was something in the will in connection with that particular of the usufruct of the
widow? — "A. It was somewhat incorporated into the assets of the estate left by the deceased.
Q. Do you remember the number of pages of which that will consisted? — "A. Twenty-three (23) pages.
Q. Do you remember if the pages were signed by the testator? — "A. Yes, sir, it was signed.
Q. And the foot of the testament or the end of the testament, was it signed by the testator? — "A. Yes, sir, and the attestation
clause was the last page signed by the three instrumental witnesses, Alberto Barretto, one Chinaman Go Toh, and Manuel
Lopez, my former Justice of the Peace of Hagonoy.
Q. Do you remember if there witnesses signed on the different pages of the will? — "A. Yes, sir, they signed with their name
signatures.
Q. Showing you this document consisting of twenty-three (23) pages in Spanish and which document appears already attached
to this same testamentary proceedings and already marked as EXHIBIT B, will you please tell the Court if and for instance on
page eight (8) of this document, pagina octavo, it says, there are handwritings in pencil, some of which read as follows: "Los
cinco-octavos (5/8) partes corresponds a mi hijo Emiliano", can you recognize whose handwriting is that? — "A. From my best
estimate it is the handwriting of Don Alberto Barretto.
Q. About the end of the same page eight (8) pagina octavo, of the same document Exhibit B, there is also the handwriting in
pencil which reads: "La otra sexta parte (6.a) corresponde a Bonifacio Lopez", can you recognize that handwriting? — "A. Yes,
sir, this is the handwriting of Don Alberto Barretto, and I wish to call the attention of the Court to compare letter "B" which is in
capital letter with the signature of Don Alberto Barretto in the envelope, "Alberto Barretto" and stroke identifies one hand as
having written those words.
Q. Will you please go over cursorily this document, Exhibit B composed of twenty-three (23) pages and please tell the Court if
this document had anything to do with the will which according to you was contained in the envelope, Exhibit A? — "A. This is
exactly the contents of the original will which I received and kept in my office inside the safe for three (3) days, and I precisely
took special case in the credits left by the deceased, and I remember among them, were the De Leon family, and Sandiko, well
known to me, and then the disposition of the estate, divided into three (3) equal parts, and I noticed that they are the contents
of the will read.
His Honor, Judge Pecson, was positive in his first decision that "the testimony of Judge Anastacio Teodoro is corroborated by Go
Toh, one of the attesting witnesses, in his deposition (Exhibit D-1)." Yet in setting aside his first decision, he remarked that Go
Toh's testimony did not prove clearly and distinctly the provision of the lost will, because: "He did not, and he could not have
done so even if he tried because the original will was not read to him nor by him before or at the signing of the same. It was
written in Spanish and he did not and does not understand the Spanish language. Neither was there any occasion for him to
have the contents of the said will, after its execution and sealing inside the envelope (Exhibit A), read to him, because it was
opened only when Judge Teodoro had examined it and then subsequently snatched from Go Toh."
The later position thus taken by Judge Pecson is palpably inconsistent with the following unequivocal statements of Go Toh
contained in hid disposition taken in Amoy, China, on April 17, 1938, and in oppositor's Exhibit "6":
26. State what you know of the contents of that will.

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. . . . Regarding (1) expenditures (2) Philippine citizenship; (3) Distribution of estates among children (4) Taking care of grave lot;
(5) guardianship of Silvino Suntay and (6) after paying his debts he will have approximately 720,000 pesos left. This amount will
be divided into three equal parts of 240,000 pesos each. The first part is to be divided equally among the ten children born by
the first and second wives and the second part among the three sons Silvino Suntay, 75,000 approximately; Apolonio Suntay,
50,000 pesos approximately; Jose Suntay and Concepcion Suntay, 36,000 each approximately. The third part is to be divided
between Maria Lim Billian and Silvino Suntay; each will get approximately 110,000 pesos. Silvino Suntay will get a total of
210,000 pesos approximately, Maria Natividad Lim Billian a total of 290,000 approximately, and Apolonio Suntay a total of
80,000 approximately, Concepcion Suntay and Jose Suntay will get 60,000 pesos each approximately. The rest of the children
will get approximately 29,000 each. The way of distribution of the property of Jose B. Suntay, movable and immovable, and the
outstanding debts to be collected was arranged by Jose B. Suntay.
xxx xxx xxx
78. On the occasion of the execution of the testament of Jose B. Suntay, state whether or not you say Exhibit B — ... Yes.
79. In the affirmative case, state if you know who had the possession of Exhibit B and the testament the first time you saw them
on that occasion. — ... Yes, I know who had possession of them.
80. Can you say whether or not Jose B. Suntay happened to get those documents later on, on that same occasion? — ... He got
them after the execution.
81. Please name the person who gave those documents to Mr. Suntay. — ... Alberto Barretto gave the documents to Jose B.
Suntay.
82. Did the person who gave those documents to Suntay say anything to him (Suntay) at the time of giving them? — ... Yes.
83. If so what was it that he said, if he said any? — ... He said, "You had better see if you want any correction."
84. What did Mr. Suntay do after those documents were given to him? — ... Jose B. Suntay looked at them and then gave one
copy to Manuel Lopez for checking.
85. State whether or not Mr. Suntay gave one of those documents to another man. — ... Yes.
86. In the affirmative case, can you say which of the two documents was given and who the man was? — ... Yes he gave Exhibit
B to Manuel Lopez.
87. State whether or not Mr. Suntay said something to the man to whom he gave one of those documents. — ... Yes.
88. In the affirmative case can you repeat more or less what Mr. Suntay said to that man? — ... He told him to read it for
checking.
89. State if you know what did the man do with one of those documents given to him. — ... He took it and read it for checking.
90. What did in turn Mr. Suntay do with the other one left with him? — ... Jose B. Suntay looked at the original and checked
them.
91. What was done with those documents later on if there was anything done with them? — ... After checking, Jose B. Suntay
put Exhibit B in his pocket and had the original signed and executed.
92. What was done with the testament of Jose B. Suntay after it was signed by the testator and its witnesses? — ... It was taken
away by Jose B. Suntay. (Exhibit D, D-1.)
Q. Did you know the contents of this envelope? — "A. I knew that it was a will.
Q. But did you know the provisions of the will? — "A. It is about the distribution of the property to the heirs.
Q. Did you know how the property was distributed according to the will? — "A. I know that more than P500,000 was for the
widow and her son, more than P100,000 for the heirs that are in the family. (Exhibit "6", p. 28).
Q. You stated that you were one of the witnesses to the will and that the will was written in Spanish. Was it written in
typewriting or in handwriting of somebody? — "A. That will was written in typewriting.
Q. Did you read the contents of that will, or do you know the contents of that will? — A. No, sir, because I do not know Spanish.
Q. How do you know that it was the will of Jose B. Suntay ? — "A. Because I was one of the signers and I saw it." (Exhibit "6", p.
19.)
22. Do you understand the language in which that will was written? — ... I know a little Spanish.

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23. Do you talk or write that language? I can write and talk a little Spanish. (Exhibits D, D-1.)
As to Ana Suntay's corroborating testimony, Judge Pecson aptly made the following findings: "Ana Suntay, one of the heirs and
who would be affected adversely by the legalization of the will in question, also testified on rebuttal that she saw the original
will in the possession of Manuel Suntay immediately after the snatching. She read it and she particularly remembers the
manner in which the properties were to be distributed. Exhibit B was shown to her on the witness stand and she declared that
the provision regarding the distribution of the properties in said Exhibit B is the same as that contained in the original will. Said
testimony of Ana Suntay, therefore, belies the testimony of Atty. Alberto Barretto." And yet in the resolution on the motion for
new trial, the trial Judge had to state that "Ana Suntay on rebuttal did not, likewise, prove clearly and distinctly the provisions
of the said lost will, because she has not had enough schooling and she does not possess adequate knowledge of the Spanish
language as shown by the fact that she had to testify in Tagalog on the witness stand." The potent error committed by Judge
Pecson in reversing his views as regards Ana's testimony, is revealed readily in the following portions of the transcript:
P. Cuantas paginas tenia aquel documento a que usted se refiere? — "R. Probablemente seria mas de veinte (20) paginas.
P. No serian treinta (30) paginas? — "Abogado Recto: La testigo ha contestado ya que mas de veinte (20).
Juzgado: Se estima
Abogado Mejia:
P. Usted personalmente leyo el documento" — "R. Yo leyo mi hermano en presencia mia.
P. La pregunta es, si usted personalmente ha leido el documento? — " R. Si, lo he visto.
P. No solamente le pregunto a usted si Vd. ha visto el testamento sino si usted ha leido personalmente el testamento? — "R. Si
la parte de la adjudicacion lo he leido para asegurarme a que porcion corresponde a cada uno de nosotros.
P. Puede usted repetir poco mas o menos esa porcion a que se hacia la distribucion del alegado testamento? — "R. Como ya he
declarado, que las propiedades de mi difunto padre se habian dividido en tres partes, una tercera parte se nos adjudica a
nosotros diez (1) hijos en primeros nupcias y segunda nupcia, la segunda tercera parte los adjudica a la viuda y a Silvino, y la
otra tercera parte se lo adjudica a sus hijos como mejora a Silvino, Apolonio, Concepcion y Jose.
P. Eso, tal como usted personalmente lo leyo en el documento? — "R. Si Señor.
P. Quiere usted tener la bondad, señora, de repetir poco mas o menos las palabras en ese documento que se distribuia las
propiedades del defundo padre usted como usted relata aqui? "Abogado Recto: Objetamos a la pregunta por falta de base,
porque elle solamente se fijo en la parte como se distribuian las propiedades pero no ha dicho la testigo que ella lo ha puesto
de memoria, ni Vd. ha preguntado en que lenguaje estaba escrito el testamento ...
Juzgado: Se estima.
Abogado Mejia:
P. Sabe usted en que lenguaje estaba redactado el documento que usted leyo personalmente? — "R. En Castellano.
P. Puede usted repetirnos ahora en Castellano algunas frases o palabras como se hizo la distribucion en aquel supuesto
testamento? —
Abogado Recto: Objecion, por falta de base, uno puede entender el español y sin embargo no podra repetir lo que ha leido, y
no se sabe todavia si ha estudiado el español bastante hasta el punto de poder hablarlo.
Juzgado: Se estima.
Abogado Mejia
P. Usted dijo que estaba puesto en castellano el supuesto testamento que Vda. leyo, usted poso el castellano? — "R. Yo
entiendo el castellano, pero no puedo hablar bien.
P. Usted estudio el castellano en algun colegio? — "Rj. Si, señor, En Sta. Catalina.
P. Cuantos años? — "R. Nuestros estudios no han sido continuous porque mi padre nos ingresaba en el colegio y despues nos
sacaba para estar afuera, y no era continuo nuestro estudio.
P. Pero en total, como cuantos meses o años estaba usted en el colegio aprendiendo el castelano? — "R. Unos cuatro o cinco
años.
P. Entonces usted puede leer el castellano con facilidad, señora? — "R. Si, castellano sencillo puedo entender y lo puedo leer.

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P. Usted entiende las preguntas que se le dirigian aqui en castellano sin interpretacion o sin el interprete? — "R. Si, Señor.
P. Puede usted contestar en castellano? — "R. Bueno, pero como de contestar, por eso quiero que la pregunta se me traduzca
antes. asi puedo contestar debidamente. (t.s.n. pp. 533-534.)
We are really at a loss to understand why, without any change whatsoever in the evidence, the trial Judge reversed his first
decision, particularly when he announced therein that "it is now incumbent upon this court to delve into the evidence whether
or not Jose B. Suntay, deceased, left a will (the draft of which is Exhibit B) and another will which was executed and probated in
Amoy, China." His action is indeed surprising when we take into account the various circumstancial features presently to be
stated, that clearly confirm the testimony of Judge Anastacio Teodoro, G. Toh and Ana Suntay, or otherwise constitute visible
indicia of oppositor's desire to frustrate the wishes of his father, Jose B. Suntay.
In our opinion the most important piece of evidence in favor of the petitioner's case is the draft of the lost will, Exhibit "B." Its
authenticity cannot be seriously questioned, because according to the trial Judge himself, oppositor's own witness, Atty.
Alberto Barretto, admitted it to be "identical in substance and form to the second draft which he prepared in typewriting."
Indeed, all the "A's" and "B's" in the handwritten insertions of the draft are very similar to those in Barretto's admittedly
genuine signature on the envelope, Exhibit "A." The finding of Judge Pecson on the point in his first decision (reiterated
expressly in the resolution on the motion for new trial), should control, not only because it is in accordance with the evidence
but because the oppositor had failed and did not even attempt to have the trial Judge reconsider or reverse his factual
conclusions. The draft, Exhibit "B," having been positively identified by the witnesses for the petitioner to be an exact copy of
the lost will of Jose B. Suntay, is therefore conclusive. Oppositor's effort to show that said draft was never signed in final form,
and was thought of merely to deceive petitioner's mother, Lim Billian, and that the will actually executed and put in the
envelope, Exhibit "A", provided that the testator's estate would be divided equally among his heirs, as in the case of intestacy,
was necessarily futile because, if this allegation is true, the will would not have been "snatched" from Go Toh — and the loss
certainly cannot be imputed to the widow Lim Billian or the petitioner; the snatched will would have been produced to put an
end to petitioner's and his mother's claim for greater inheritance or participation under the lost will; and the envelope
containing the first will providing for equal shares, would not have been entrusted to the care and custody of the widow Lim
Billian.
It is very noteworthy that out of the nine children of the first marriage, only Angel, Jose and Federico Suntay had opposed the
probate of the will in question; the rest, namely, Ana, Aurora, Concepcion, Lourdes, Manuel and Emiliano Suntay, having
expressly manifested in their answer that they had no opposition thereto, since the petitioner's alternative petition "seeks only
to put into effect the testamentary disposition and wishes of their late father." This attitude is significantly an indication of the
justness of petitioner's claim, because it would have been to their greater advantage if they had sided with oppositor Federico
Suntay in his theory of equal inheritance for all the children of Jose B. Suntay. Under the lost will or its draft Exhibit "B", each of
the Suntay children would receive only some P 25,000.00, whereas in case of intestacy or under the alleged will providing for
equal shares, each of them would receive some P100,000.00. And yet the Suntay children other than Angel, Jose and Federico
had chosen to give their conformity to the alternative petition in this case.
Another unequivocal confirmation of the lost will is the will which Jose B. Suntay executed in Amoy, Fookien, China, on January
4, 1931, and probated in Amoy District Court, China, containing virtually the same provisions as those in the draft Exhibit "B".
What better evidence is there of an man's desire or insistence to express his last wishes than the execution of a will reiterating
the same provisions contained in an earlier will. Assuming that the Chinese will cannot be probated in the jurisdiction, its
probative value as corroborating evidence cannot be ignored.
Oppositor himself had admitted having read the will in question under which the widow Lim Billian was favored; and this again
in a way goes to corroborate the evidence for the petitioner as to the contents of the will sought to be probated.
COURT:
Q. Have you read the supposed will or the alleged will of your father? — "A. Yes, sir.
COURT:
Q. Can you tell the court the share or participation in the inheritance of Maria Natividad Lim Billian according to the will? —
A. Yes sir, she will inherit, I think, two-thirds (2/3) of the estate, in other words she is the most favored in the will, so when they
sold that, they sold everything, they are selling everything even the conjugal property. (t. s. n. 228-229.)
The decision of the majority leans heavily on the testimony of Atty. Alberto Barretto, forgetful perhaps of the fact that the trial
Judge gave no credence to said witness. It should be repeated that Judge Pecson reiterated in the resolution on the motion for
new trial all his findings in the first decision. If as Atty. Barretto testified, Lim Billian was entitled under the will actually signed
by Jose Suntay only to P10,000.00, in addition to properties in China value at P15,000.00, the fees of P25,000.00 admittedly
asked by him would absorb her entire inheritance; and this would normally not be done by any law practitioner. Upon the other

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hand, there is evidence to the effect that Atty. Barretto might have become hostile to the petitioner and his mother Lim Billian
in view of the latter's refusal to agree to the amount of P25,000.00 and her offer to pay only P100.00. There is also evidence
tending to show that as early as 1942, Atty. Barretto was paid by oppositor Federico Suntay the sum of P16,000.00 which,
although allegedly for services in the testate proceedings, was paid out of the personal funds of said oppositors to supply Atty.
Barretto's needs. This circumstances perhaps further explains why the latter had to support the side of Federico Suntay.
We have quoted in full the decision of this court in the "snatching" case and the first decision of Judge Pecson in this case, both
in the hope and in the belief (1) that the first would reveal the manner by which those adversely affected had planned to
prevent the last wishes of the deceased Jose B. Suntay from being carried on, and (2) that the second, by the facts correctly
recited therein and by the force and accuracy of its logic would amply show the weakness and utter lack of foundation of the
resolution on the motion for reconsideration. We have set forth at length pertinent portions of the testimony of various
witnesses to demonstrate more plainly the plausibility of the original decision of Judge Pecson, and the latter's consequent bad
judgment in having forced himself to accomplish a somersault, a feat which the majority, in my opinion, have mistakenly
commended. We have found this to be one of the cases of this court in which we have had occasion to participate, where there
can be absolutely no doubt as to the result — outright reversal — for which, with due respect to the majority opinion, we vote
without hesitancy.
Montemayor and Jugo, JJ., concur.

RESOLUTION

5 November 1954

PADILLA, J.:
This is a motion for reconsideration of the decision promulgated on 31 July 1954, affirming the decree of the Court of First
Instance of Bulacan which disallowed the alleged last will and testament executed in November 1929 and the alleged last will
and testament executed in Kulangsu, Amoy, China, on 4 January 1931, by Jose B. Suntay, without pronouncement as to costs,
on grounds that will presently be taken up and discussed.
Appellant points to an alleged error in the decision where it states that —
. . . This petition was denied because of the loss of said will after the filing of the petition and before the hearing thereof, . . .
because according to him the "will was lost before not after (the) filing of the petition." This slight error, if it is an error at all,
does not, and cannot, after the conclusions and pronouncements made in the judgment rendered in the case. In his alternative
petition the appellant alleges:
4. That on October 15, 1934, Marian Natividad Lim Billian, the mother of herein petitioner filed a petition in this court for the
allowance and probate of a last will and testament executed, and signed in the Philippines in the year 1929 by said deceased
Jose B. Suntay. (P. 3, amended record on appeal.)
If such will and testament was already lost or destroyed at the time of the filing of the petition by Maria Natividad Lim Billian
(15 October 1934), the appellant would have so stated and alleged. If Anastacio Teodoro, a witness for the appellant, is to be
believed when he testified —
. . . that one day in November 1934 (p. 273, t. s. n., hearing of 19 January 1948), ... Go Toh arrived at his law office in the De Los
Reyes Building and left an envelope wrapped in red handkerchief [Exhibit C] (p. 32, t. s. n., hearing of 13 October 19470 . . .
and —
If the will was snatched after the delivery thereof by Go Toh to Anastacio Teodoro and returned by the latter to the former
because they could not agree on the amount of fees, . . .
then on 15 October 1934, the date of the filing of the petition, the will was not yet lost. And if the facts alleged in paragraph 5
of the appellant's alternative petition which states:
That this Honorable Court, after hearing, denied the aforesaid petition for probate filed by Maria Natividad Lim Billian in view of
the loss and/or destruction of said will subsequent to the filing of said petition and prior to the hearing thereof, and the alleged
insufficiency of the evidence adduced to established the loss and/or destruction of the said will, (Emphasis supplied, P. 3,
amended record on appeal.)
may be relied upon, then the alleged error pointed out by the appellant, if it is an error, is due to the allegation in said
paragraph of his alternative petition. Did the appellant allege the facts in said paragraph with reckless abandon? Or, did the

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appellant make the allegation as erroneously as that which he made in paragraph 10 of the alternative petition that "his will
which was lost and ordered probated by our Supreme Court in G. R. No. 44276, above referred to?" (P. 7, amended record on
appeal.) This Court did not order the probate of the will in said case because if it did, there would have been no further and
subsequent proceedings in the case after the decision of this Court referred to had been rendered and had become final. Be
that as it may, whether the loss of the will was before or subsequent to the filing of the petition, as already stated, the fact
would not affect in the slightest degree the conclusions and pronouncements made by this Court.
The appellant advances the postulate that the decision of this Court in the case of Lim Billian vs. Suntay, G. R. No. 44276, 63
Phil., 793, constitutes res judicata on these points: (a) that only one will was prepared by attorney Barretto, and (b) that the
issue to be resolved by the trial court was whether the draft (Exhibit B) is a true copy or draft of the snatched will, and contends
that these points already adjudged were overlooked in the majority opinion. The decision of this Court in the case referred to
does not constitute res judicata on the points adverted to by the appellant. The only point decided in that case is that "the
evidence is sufficient to establish the loss of the document contained in the envelope." In the opinion of this Court, this
circumstance justified "the presentation of secondary evidence of its contents and of whether it was executed with all the
essential and necessary legal formalities." That is all that was decided. This Court further said:
The trial of this case was limited to the proof of loss of the will, and from what has taken place we deduce that it was not
petitioner's intention to raise, upon the evidence adduced by her, and other points involved herein, namely, as we have
heretofore indicated, whether Exhibit B is a true copy of the will and whether the latter was executed with all the formalities
required by law for its probate. The testimony of Alberto Barretto bears importantly in this connection. (P. 796, supra.)
Appellant's contention that the question before the probate court was whether the draft (Exhibit B) is a true copy or draft of
the snatched will is a mistaken interpretation and view of the decision of this Court in the case referred to, for if this Court did
make that pronouncement, which, of course, it did not, such pronouncement would be contrary to law and would have been a
grievous and irreparable mistake, because what the Court passed upon and decided in that case, as already stated, is that there
was sufficient evidence to prove the loss of the of the will and that the next step was to prove by secondary evidence its due
execution in accordance with the formalities of the law and its contents, clearly and districtly, by the testimony of at least two
credible witnesses.1
The appellant invokes Rule 133 to argue that Rule 77 should not have been applied to the case but the provisions of section 623
of the Code of Civil Procedure (Act No. 190), for the reason that this case had been commenced before the Rules of Court took
effect. But Rule 133 cited by the appellant provides:
These rules shall take effect on July 1, 1940. They shall govern all cases brought after they take effect, and also all further
proceedings in cases then pending, except to the extent that in the opinion of the court their application would not be feasible
or would work injustice, in which event the former procedure shall apply. (Emphasis supplied.)
So, Rule 77 applies to this case because it was a further proceedings in a case then pending. But even if section 623 of the Code
of Civil Procedure were to be applied, still the evidence to prove the contents and due execution of the will and the fact of its
unauthorized destruction, cancellation, or obliteration must be established "by full evidence to the satisfaction of the Court."
This requirement may even be more strict and exacting than the two-witness rule provided for in section 6, Rule 77. The
underlying reason for the exacting provisions found in section 623 of Act No. 190 and section 6, Rule 77, the product of
experience and wisdom, is to prevent imposters from foisting, or at least to make for them difficult to foist, upon probate
courts alleged last wills or testaments that were never executed.
In commenting unfavorably upon the decree disallowing the lost will, both the appellant and the dissenting opinion suffer from
an infirmity born of a mistaken premise that all the conclusions and pronouncements made by the probate court in the first
decree which allowed the probate of the lost will of the late Jose B. Suntay must be accepted by this Court. This is an error. It
must be borne in mind that this is not a petition for a writ of certiorari to review a judgment of the Court of Appeals on
questions of law where the findings of fact by said Court are binding upon this Court. This is an appeal from the probate court,
because the amount involved in the controversy exceeds P50,000, and this Court in the exercise of its appellate jurisdiction
must review the evidence and the findings of fact and legal pronouncements made by the probate court. If such conclusions
and pronouncements are unjustified and erroneous this Court is in duty bound to correct them. Not long after entering the first
decree the probate court was convinced that it had committed a mistake, so it set aside the decree and entered another. This
Court affirmed the last decree not precisely upon the facts found by the probate court but upon facts found by it after a careful
review and scrutiny of the evidence, parole and documentary. After such review this Court has found that the provisions of the
will had not been established clearly and distinctly by at least two credible witnesses and that conclusion is unassailable
because it is solidly based on the established facts and in accordance with law.
The appellant and the dissent try to make much out of a pleading filed by five (5) children and the widow of Apolonio Suntay,
another child of the deceased by the first marriage, wherein they state that —

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. . . in answer to the alternative petition filed in these proceedings by Silvino Suntay, through counsel, dated June 18, 1947, to
this Honorable Court respectfully state that, since said alternative petition seeks only to put into effect the testamentary
disposition and wishes of their late father, they have no opposition thereto. (Pp. 71-72, amended record on appeal.)
Does that mean that they were consenting to the probate of the lost will? Of course not. If the lost will sought to be probated in
the alternative petition was really the will of their late father, they, as good children, naturally had, could have, no objection to
its probate. That is all that their answer implies and means. But such lack of objection to the probate of the lost will does not
relieve the proponent thereof or the party interested in its probate from establishing its due execution and proving clearly and
distinctly the provisions thereof at least two credible witnesses. It does not mean that they accept the draft Exhibit B as an
exact and true copy of the lost will and consent to its probate. Far from it. In the pleading copied in the dissent, which the
appellant has owned and used as argument in the motion for reconsideration, there is nothing that may bolster up his
contention. Even if all the children were agreeable to the probate of said lost will, still the due execution of the lost will must be
established and the provisions thereof proved clearly and distinctly by at least two credible witnesses, as provided for in section
6, Rule 77. The appellant's effort failed to prove what is required by the rule. Even if the children of the deceased by the first
marriage, out of generosity, were willing to donate their shares in the estate of their deceased father or parts thereof to their
step mother and her only child, the herein appellant, still the donation, if validly made, would not dispense with the
proceedings for the probate of the will in accordance with section 6, Rule 77, because the former may convey by way of
donation their shares in the state of their deceased father or parts thereof to the latter only after the decree disallowing the
will shall have been rendered and shall have become final. If the lost will is allowed to probate there would be no room for such
donation except of their respective shares in the probated will.
The part of the deposition of Go Toh quoted in the motion for reconsideration which appellant underscores does not refer to
Go Toh but to Manuel Lopez. Even if Go Toh heard Manuel Lopez read the draft (Exhibit B) for the purpose of checking it up
with the original held and read by Jose B. Suntay, Go Toh should not have understood the provisions of the will because he
knew very little of the Spanish language in which the will was written (answer to 22nd and 23rd interrogatories and to X-2
cross-interrogatory). In fact, he testifies in his deposition that all he knows about the contents of the lost will was revealed to
him by Jose B. Suntay at the time it was executed (answers to 25th interrogatory and to X-4 and X-8 cross-interrogatories); that
Jose B. Suntay told him that the contents thereof are the same as those of the draft [Exhibit B] (answers to 33rd interrogatory
and to X-8 cross-interrogatory); that Mrs. Suntay had the draft of the will (Exhibit B) translated into Chinese and he read the
translation (answer to the 67th interrogatory); that he did not read the will and did not compare it (check it up) with the draft
[Exhibit B] (answers to X-6 and X-20 cross-interrogatories). We repeat that —
. . . all of Go Toh's testimony by deposition on the provisions of the alleged lost will is hearsay, because he came to know or he
learned of them from information given him by Jose B. Suntay and from reading the translation of the draft (Exhibit B) into
Chinese.
This finding cannot be contested and assailed.
The appellant does not understand how the Court came to the conclusion that Ana Suntay, a witness for the appellant could
not have read the part of the will on adjudication. According to her testimony "she did not read the whole will but only the
adjudication," which, this Court found, "is inconsistent with her testimony in chief (to the effect) that "after Apolonio read that
portion, then he turned over the document of Manuel, and he went away." (P. 528, t. s. n., hearing of 24 February 1948.) And
appellant asks the question: "Who went away? Was it Manuel or Apolonio?" In answer to his own question the appellant says:
"The more obvious inference is that it was Apolonio and not Manuel who went away." This inference made by the appellant not
only is not obvious but it is also illogical, if it be borne in mind that Manuel came to the house of Apolonio and it happened that
Ana was there, according to her testimony. So the sentence "he went away" in Ana's testimony must logically and reasonably
refer to Manuel, who was a caller or visitor in the house of his brother Apolonio and not to the latter who was in his house. If it
was Apolonio who "went away," counsel for the appellant could have brought that out by a single question. As the evidence
stands could it be said that the one who went away was Apolonio and not Manuel? The obvious answer is that it was Manuel.
That inference is the result of a straight process of reasoning and clear thinking.
There is a veiled insinuation in the dissent that Alberto Barretto testified as he did because he had been paid by Federico C.
Suntay the sum of P16,000. Federico C. Suntay testifies on the point thus —
Q. You mentioned in your direct testimony that you paid certain amount to Atty. Alberto Barretto for services rendered, how
much did you pay? — A. Around SIXTEEN THOUSAND (P16,000.00).
Q. When did you make the payment? — A. During the Japanese time.
Q. Did you state that fact in any accounts you presented to the Court? — A. I do not quite remember that.
. . . (P. 180, t. s. n., hearing of 24 October 1947.)

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Q. When you made that payment, was (it) your intention to charge it to the state or to collect it later from the estate? — A. Yes,
sir.
Q. More or less when was such payment made, during the Japanese time, what particular month and year, do you remember?
— A. I think in 1942.
Q. And you said you paid him because of services he rendered? — A. Upon the order to the Court.
Q. And those services were precisely because he made a will and he made a will which was lost, the will of Jose B. Suntay? ... (P.
181, t. s. n., supra.) — A. I think I remember correctly according to ex-Representative Vera who is the administrator whom I
followed at that time, that was paid according to the services rendered by Don Alberto Barretto with regard to our case in the
testamentaria but he also rendered services to my father.
Q. At least your Counsel said that there was an order of the Court ordering you to pay that, do you have that copy of the order?
— A. Yes, sir, I have, but I think that was burned. (P. 184, t. s. n., supra.).
So the sum of P16,000 was paid upon recommendation of the former administrator and order of the probate court for services
rendered by Alberto Barretto not only in the probate proceedings that also for services rendered to his father. But if this sum of
P16,000 paid to Alberto Barretto upon recommendation of the previous administrator and order of the probate court for
professional services rendered in the probate proceedings and to the deceased in his lifetime be taken against his truthfulness
and veracity as to affect adversely his testimony, what about the professional services of Anastacio Teodoro who appeared in
this case as one of the attorneys for the petitioner-appellant? (P. 2, t. s. n., hearing of 13 October 1947.)Would that not likewise
or by the same token affect his credibility? It is the latter's interest more compelling than the former's?
For the foregoing reasons, the motion for reconsideration is denied.
Pablo, Bengzon, Reyes, A. and Concepcion, JJ., concur.

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G.R. No. L-17091 September 30, 1963
IN THE MATTER OF THE ESTATE OF THE DECEASED CHUNG LIU, NGO THE HUA, petitioner-appellant,
vs.
CHUNG KIAT HUA, LILY CHUNG CHO, BONIFACIO CHUNG SIONG PEK and CHUNG KA BIO, oppositors-appellees,
CHUNG KIAT, KANG, oppositor-appellant,
PHILIPPINE TRUST COMPANY, special administrator.
Lorenzo Sumulong for petitioner-appellant.
Zosimo Rivas for oppositor-appellant Chung Kiat Kang.
Bienvenido A. Tan, Jr. for oppositor-appellee Bonifacio Chung Siong Pek.
Crispin D. Baizas for other oppositors-appellees.

LABRADOR, J.:
This is an appeal from an order of the Court of First Instance of Rizal, Pasay City Branch, Hon. Jesus Perez presiding, appointing
Chung Kiat Hua as administrator of the estate of the deceased Chung Liu in Special proceeding No. 1552-P of said court.
On December 7, 1957, Ngo The Hua, claiming to be surviving spouse of the deceased Chung Liu, filed a petition to be appointed
administratrix of the estate of aforementioned deceased. Her petition was opposed Chung Kiat Hua, Lily Chung Cho, Bonifacio
Chung Sio Pek and Chung Ka Bio, all claiming to be children of the deceased Chung Liu by his first wife, Tan Hua. They claim that
Ngo The Hua is morally and physically unfit to execute the duties of the trust as administratrix, and that she and the deceased
have secured an absolute divorce in Taiwan, both being Chinese citizens, confirmed a legalized by the Taipei District Court,
Taipei, Taiwan August 25, 1955. In this same opposition they prayed the Chung Kiat Hua, allegedly the eldest child of the
deceased, be appointed administrator instead. These oppositors prayer was in turn opposed by Ngo The Hua who claim that
the oppositors are not children of Chung Liu.
On January 13, 1957, Chung Kiat Kang, claiming be a nephew of the deceased, filed his opposition to the appointment of either
Ngo The Hua or Chung Kiat Hu on the ground that to be appointed they must first prove their respective relationship to the
deceased Chung Li and prayed that he be appointed administrator.
The petition was heard and evidence presented by both petitioner Ngo The Hua and the oppositors Chung Kiat Hua, et al. When
Chung Kiat Kang's turn to present his evidence came, he manifested, through his counsel, that he was waiving his right to
present evidence in so far as the appointment of administrator of the estate is concerned (t.s.n. pp. 3-6, hearing of July 3,
1958).
On December 2, 1959, after a lengthy hearing, the low court found that Ngo The Hua and the deceased were validly divorced by
the aforementioned Taipei District Court, and that Chung Kiat Hua, Lily Chung Cho, Bonifacio Chung Siong Pek and Chung Kiat
Bio are children of the deceased. So it issued the order appointing Chung Kiat Hua as administrator of the estate of Chung Liu.
From this order, both the petitioner and Chung Kiat Kang appealed. On May 30, 1961, however, petitioner Ngo The Hua filed a
petition to withdraw her appeal stating that she had entered into an amicable settlement with the oppositors-appellees. Her
petition was granted by this Court in a resolution dated June 26, 1961.
Hence only the appeal of oppositor Chung Kiat Kang remains for the consideration of this Court.
Appellant now contends that the lower court erred in passing upon the validity of the divorce obtained by the petitioner and
the deceased and upon the filiation of the oppositors-appellees, such being a prejudgment "since it is well-settled that the
declaration of heirs shall only take place after all debts, expenses and taxes have been paid" in accordance with See. 1, Rule 91
of the Rules of Court. The pertinent portion of the section cited by appellant is as follows:.
SECTION 1. When order for distribution of residue made. — . . When the debts, funeral charges, and expenses of administration,
the allowances to the widow and inheritance tax, if any, chargeable to the estate in accordance with law, have been paid, the
court . . shall assign the residue of the estate of the Persons entitled to the same . .
No distribution shall be allowed until payment of the obligations above-mentioned has been made or provided for . . (Emphasis
supplied).
A cursory reading of the above-quoted section discloses that what the court is enjoined from doing is the assignment or
distribution of the residue of the deceased's estate before the above-mentioned obligations chargeable to the estate are first
paid. Nowhere from said section may it be inferred that the court cannot make a declaration of heirs prior to the satisfaction of
these obligations. It is to be noted, however, that the court in making the appointment of the administrator did not purport to
make a declaration of heirs.

187
On the other hand, it is clear from the facts of this case that is was deemed necessary by the lower court to determine the
relationship of the parties, as advanced by petitioner and the oppositors-appellees, to be able to appoint an administrator in
accordance with the order preference established in Section 5, Rule 79 of the Rules of Court. Said section provides that letters
of administration shall be granted to the surviving spouse the next of kin, or to any principal creditor, in this order. Oppositors-
appellees denied petitioner Ngo The Hua's claim that she is the surviving spouses of Chung Liu, and petitioner likewise denied
the oppositors-appellees' claim that they are children of the deceased. Since these applicants were asking for the letter of
administration on the theory that they are preferred according to Section 5 Rule 79 because of their relationship to the
deceased Chu Liu, the lower court necessarily had to pass first on the truth of their respective claims of relationship to be able
to appoint an administrator in accordance with the aforementioned order of preference.
Let it be made clear, that what the lower court actual decided and what we also decide is the relationships between the
deceased and the parties of claiming the right to be appointed his administrator, to determine who among them is entitled to
the administration, not who are his heirs who are entitled to share in his estate. This issue of heirship is one to be determined
in the decree of distribution, and the findings of the court in the case at bar on the relationship of the parties is not a final
determination of such relationships as a basis of distribution.1awphîl.nèt
Having resolved the issue raised, it is unnecessary to rule on the other questions raised by the appellant Chun Kiat Rang. It is
well-settled that for a person to be able to intervene in an administration proceeding concerning the estate of a deceased, it is
necessary for him to have interest in such estate (Sec. 4, Rule 80, Rules of Court Moran, Comments on the Rules of Court, Vol.
II, 195 ed. P. 382). An interested party has been defined in this connection as one who would be benefited by the estate such as
an heir, or one who has a certain claim against the estate, such as a creditor (Saguinsin vs. Lindayag, et al., G.R. No. L-17759,
Dee. 17, 1962; Intestate Estate Julio Magbanwa, 40 O.G. 1171; Williams vs. Williams, 11 Ga. 1006, cited in Francisco, Rules of
Court, Vol. IV, 195 ed., p. 411). Appellant Chung Kiat Kang does not claim of to be a creditor of Chung Liu's estate. Neither is he
an heir in accordance with the Civil Code of the Republic of China (Exh. 28 of Chung Kiat Hua), the law that applies in this case,
Chung Liu being a Chinese citizen (Art. 16, New Civil Code). The appellant not having any interest in Chung Liu's estate, either as
heir or creditor, he cannot be appointed as co-administrator of the estate, as he now prays.
WHEREFORE, the order appealed from is hereby affirmed, with costs against appellants. So ordered.

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G.R. No. 168156 December 6, 2006
HEIRS OF ROSENDO LASAM, Represented by Rogelio Lasam and Atty. Edward P. Llonillo, petitioners,
vs.
VICENTA UMENGAN, respondent.

DECISION

CALLEJO, SR., J.:

Before the Court is the petition for review on certiorari filed by the Heirs of Rosendo Lasam, represented by Rogelio M. Lasam
and Atty. Edward P. Llonillo, seeking the reversal of the Decision1 dated February 16, 2005 of the Court of Appeals (CA) in CA-
G.R. SP No. 80032. The assailed decision reversed and set aside the decision of the Regional Trial Court (RTC) of Tuguegarao
City, Cagayan and dismissed, for lack of merit, the complaint for unlawful detainer file by the said heirs against respondent
Vicenta Umengan.
The RTC decision affirmed that of the Municipal Trial Court in Cities (MTCC) of the same city, Branch III, which had rendered
judgment in favor of the heirs of Rosendo Lasam and directed the ejectment of respondent Vicenta Umengan from the lot
subject of litigation.
The present petition likewise seeks the reversal of the CA Resolution dated May 17, 2005 denying the motion for
reconsideration filed by the heirs of Rosendo Lasam.
As culled from the records, the backdrop of the present case is as follows –
The lot subject of the unlawful detainer case is situated in Tuguegarao City, Cagayan. It is the eastern half portion of Lot No.
5427 and Lot No. 990. The first lot, Lot No. 5427 containing an area of 1,037 square meters, is covered by Original Certificate of
Title (OCT) No. 196. The second lot, Lot No. 990 containing an area of 118 sq m, is covered by OCT No. 1032. These lots are
registered in the names of the original owners, spouses Pedro Cuntapay and Leona Bunagan.
In an instrument denominated as Deed of Confirmation and acknowledged before a notary public on June 14, 1979, the heirs of
the said spouses conveyed the ownership of Lots Nos. 990 and 5427 in favor of their two children, Irene Cuntapay and Isabel
Cuntapay. In another instrument entitled Partition Agreement and acknowledged before a notary public on December 28,
1979, it was agreed that the eastern half portion (subject lot) of Lots Nos. 990 and 5427 shall belong to the heirs of Isabel
Cuntapay. On the other hand, the remaining portion thereof (the west portion) shall belong to the heirs of Irene Cuntapay. The
subject lot (eastern half portion) has an area of 554 sq m.
Isabel Cuntapay had four children by her first husband, Domingo Turingan, namely: Abdon, Sado (deceased), Rufo and Maria.
When Domingo Turingan passed away, Isabel Cuntapay remarried Mariano Lasam. She had two other children by him, namely:
Trinidad and Rosendo.
Sometime in January 2001, the heirs of Rosendo Lasam (son of Isabel Cuntapay by her second husband) filed with the MTCC a
complaint for unlawful detainer against Vicenta Umengan, who was then occupying the subject lot. Vicenta Umengan is the
daughter of Abdon Turingan (son of Isabel Cuntapay by her first husband).
In their complaint, the heirs of Rosendo Lasam alleged that they are the owners of the subject lot, having inherited it from their
father. Rosendo Lasam was allegedly the sole heir of the deceased Pedro Cuntapay through Isabel Cuntapay. During his lifetime,
Rosendo Lasam allegedly temporarily allowed Vicenta Umengan to occupy the subject lot sometime in 1955. The latter and her
husband allegedly promised that they would vacate the subject lot upon demand. However, despite written notice and demand
by the heirs of Rosendo Lasam, Vicenta Umengan allegedly unlawfully refused to vacate the subject lot and continued to
possess the same. Accordingly, the heirs of Rosendo Lasam were constrained to institute the action for ejectment.
In her Answer with Counterclaim, Vicenta Umengan specifically denied the material allegations in the complaint. She countered
that when Isabel Cuntapay passed away, the subject lot was inherited by her six children by her first and second marriages
through intestate succession. Each of the six children allegedly had a pro indiviso share of 1/6 of the subject lot.
It was further alleged by Vicenta Umengan that her father, Abdon Turingan, purchased the respective 1/6 shares in the subject
lot of his siblings Maria and Sado. These conveyances were allegedly evidenced by the Deed of Sale dated March 3, 1975,
appearing as Doc. No. 88, Page No. 36, Book No. XIV, series of 1975 of the notarial book of Atty. Pedro Lagui.
Prior thereto, Rufo already sold his 1/6 share in the subject lot to Vicenta Umengan and her husband as evidenced by the Deed
of Sale dated June 14, 1961, appearing as Doc. No. 539, Page No. 41, Book No. V, series of 1961 of the notarial book of Atty.

189
Pedro Lagui. Also on June 14, 1961, Abdon donated his 1/6 share in the subject lot to her daughter Vicenta Umengan as
evidenced by the Deed of Donation appearing as Doc. No. 538, Page No. 41, Book No. V, series of 1961 of the notarial book of
the same notary public.
According to Vicenta Umengan, the children of Isabel Cuntapay by her second husband (Rosendo and Trinidad Lasam) own only
2/6 portion of the subject lot. She thus prayed that the complaint for ejectment be dismissed and that the heirs of Rosendo
Lasam be ordered to pay her damages.
The MTCC rendered judgment in favor of the heirs of Rosendo Lasam and directed the ejectment of Vicenta Umengan. In so
ruling, the MTCC gave credence to the newly discovered last will and testament (entitled Testamento Abierto) purportedly
executed by Isabel Cuntapay where she bequeathed the subject lot to her son, Rosendo Lasam, thus:
x x x my share 1/5th (one-fifth) of the Cuntapay heirs, bordered on the North by Sr. Elia Canapi; to the South, by Calle Aguinaldo;
to the East, by Calle P. Burgos and the West, by the late Don Luis Alonso; on the property which is my share stands a house of
light materials where I presently reside; this 1/5th (one-fifth) share of my inheritance from the Cuntapays I leave to my son
Rosendo Lasam and also the aforementioned house of light material x x x2
The MTCC reasoned that the heirs of Rosendo Lasam anchored their claim over the subject lot on the last will and testament of
Isabel Cuntapay while Vicenta Umengan hinged hers on intestate succession and legal conveyances. Citing jurisprudence 3 and
Article 10804 of the Civil Code, the MTCC opined that testacy was favored and that intestacy should be avoided and the wishes
of the testator should prevail. It observed that the last will and testament of Isabel Cuntapay was not yet probated as required
by law; nonetheless, the institution of a probate proceeding was not barred by prescription.
With the finding that the subject lot was already bequeathed by Isabel Cuntapay to Rosendo Lasam, the MTCC held that the
siblings Abdon, Sado, Rufo and Maria Turingan no longer had any share therein. Consequently, they could not convey to
Vicenta Umengan what they did not own. On the issue then of who was entitled to possession of the subject lot, the MTCC
ruled in favor of the heirs of Rosendo Lasam as it found that Vicenta Umengan’s possession thereof was by mere tolerance. The
dispositive portion of the MTCC decision reads:
WHEREFORE, in the light of the foregoing considerations, this Court Resolve[d] to order the EJECTMENT of VICENTA T.
UMENGAN and in her place INSTITUTE THE HEIRS OF ROSENDO LASAM.
It is further ordered the defendant shall pay the Heirs of Rosendo Lasam the sum of P500.00 pesos representing the monthly
rental of the land from August 2000 to the time this case shall have been terminated.
Ordering the defendant to pay the plaintiffs the amount of P20,000.00 attorney’s fees plus cost of this litigation.
So Ordered.5
On appeal, the RTC affirmed in toto the decision of the MTCC. The RTC echoed the reasoning of the MTCC that the
testamentary disposition of the property of Isabel Cuntapay should be respected, and that the heirs of Rosendo Lasam have a
better right to possess the subject lot.
Undaunted, Vicenta Umengan filed an appeal with the CA. She argued that the MTCC had no jurisdiction over the case as it
involved the recovery of ownership of the subject lot, not merely recovery of possession or unlawful detainer. She also assailed
the RTC’s and the MTCC’s holding that the purported Testamento Abierto of Isabel Cuntapay prevails over Vicenta Umengan’s
muniments of title and, consequently, the heirs of Rosendo Lasam have a better right to the subject lot than Vicenta Umengan.
In the assailed Decision dated February 16, 2005, the CA reversed and set aside the decision of the RTC. The appellate court
preliminarily upheld the jurisdiction of the MTCC over the subject matter as it found that the allegations in the complaint made
out a case for unlawful detainer. The heirs of Rosendo Lasam in their complaint, according to the CA, only sought for Vicenta
Umengan to vacate and surrender possession of the subject lot. The CA also rejected the contention of the heirs of Rosendo
Lasam that the issue of ownership of the subject lot had already been settled in another case, Civil Case No. 4917, before RTC
(Branch 3) of Tuguegarao City. The CA stated that the trial court’s order dismissing the said case was not a "judgment on the
merits" as to constitute res judicata.
However, the CA declared that the RTC, as well as the MTCC, erred in ruling that, by virtue of the purported last will and
testament of Isabel Cuntapay, the heirs of Rosendo Lasam have a better right to the subject lot over Vicenta Umengan. The CA
explained that the said last will and testament did not comply with the formal requirements of the law on wills.6
Specifically, the CA found that the pages of the purported last will and testament were not numbered in accordance with the
law. Neither did it contain the requisite attestation clause. Isabel Cuntapay as testator and the witnesses to the will did not affix
their respective signatures on the second page thereof. The said instrument was likewise not acknowledged before a notary
public by the testator and the witnesses. The CA even raised doubts as to its authenticity, noting that while Isabel Cuntapay
died in 1947 and the heirs of Rosendo Lasam claimed that they discovered the same only in 1997, a date – May 19, 1956 –

190
appears on the last page of the purported will. The CA opined that if this was the date of execution, then the will was obviously
spurious. On the other hand, if this was the date of its discovery, then the CA expressed bafflement as to why the heirs of
Rosendo Lasam, through their mother, declared in the Partition Agreement dated December 28, 1979 that Isabel Cuntapay died
intestate.
It was observed by the CA that as against these infirmities in the claim of the heirs of Rosendo Lasam, Vicenta Umengan
presented a Deed of Sale and a Deed of Donation to justify her possession of the subject lot. The CA noted that she has also
possessed the subject property since 1955. Such prior possession, the CA held, gave Vicente Umengan the right to remain in the
subject lot until a person with a better right lawfully ejects her. The heirs of Rosendo Lasam do not have such a better right. The
CA stressed that the ruling on the issue of physical possession does not affect the title to the subject lot nor constitute a binding
and conclusive adjudication on the merits on the issue of ownership. The parties are not precluded from filing the appropriate
action to directly contest the ownership of or the title to the subject lot.
The decretal portion of the assailed decision of the CA reads:
WHEREFORE, premises considered, the appeal is GRANTED. The August 29, 2003 decision of the RTC, Branch 1, Tuguegarao
City, Cagayan in Civil Case No. 5924 is hereby REVERSED and SET ASIDE. Private respondents’ complaint for unlawful detainer
against petitioner is dismissed for lack of merit.
SO ORDERED.7
The heirs of Rosendo Lasam sought the reconsideration thereof but their motion was denied by the CA in its Resolution dated
May 17, 2005.
The heirs of Rosendo Lasam (petitioners) now come to the Court alleging that the CA committed reversible error in setting
aside the decision of the RTC, which had affirmed that of the MTCC, and dismissing their complaint for unlawful detainer
against respondent Vicenta Umengan.
Petitioners argue that the CA erred when it held, on one hand, that the MTCC had jurisdiction over the subject matter of the
complaint as the allegations therein make out a case for unlawful detainer but, on the other hand, proceeded to discuss the
validity of the last will and testament of Isabel Cuntapay.
Petitioners insist that respondent is holding the subject lot by mere tolerance and that they, as the heirs of Rosendo Lasam who
was the rightful owner of the subject lot, have a better right thereto. It was allegedly error for the CA to declare the last will and
testament of Isabel Cuntapay as null and void for its non-compliance with the formal requisites of the law on wills. The said
matter cannot be resolved in an unlawful detainer case, which only involves the issue of material or physical possession of the
disputed property. In any case, they maintain that the said will complied with the formal requirements of the law.
It was allegedly also erroneous for the CA to consider in respondent’s favor the deed of sale and deed of donation covering
portions of the subject lot, when these documents had already been passed upon by the RTC (Branch 3) of Tuguegarao City in
Civil Case No. 4917 when it dismissed the respondent’s complaint for partition of the subject lot. The said order allegedly
constituted res judicata and may no longer be reviewed by the CA.
Petitioners emphasize that in an unlawful detainer case, the only issue to be resolved is who among the parties is entitled to
the physical or material possession of the property in dispute. On this point, the MTCC held (and the same was affirmed by the
RTC) that petitioners have a better right since the "merely tolerated" possession of the respondent had already expired upon
the petitioners’ formal demand on her to vacate. In support of this claim, they point to the affidavit of Heliodoro Turingan, full
brother of the respondent, attesting that the latter’s possession of the subject lot was by mere tolerance of Rosendo Lasam
who inherited the same from Isabel Cuntapay.
According to petitioners, respondent’s predecessors-in-interest from whom she derived her claim over the subject lot by
donation and sale could not have conveyed portions thereof to her, as she had claimed, because until the present, it is still
covered by OCT Nos. 196 and 1032 under the names of Pedro and Leona Cuntapay. Their respective estates have not been
settled up to now.
It is also the contention of petitioners that the CA should have dismissed outright respondent’s petition filed therewith for
failure to comply with the technical requirements of the Rules of Court. Specifically, the petition was not allegedly properly
verified, lacked statement of material dates and written explanation on why personal service was not made.
This last contention of petitioners deserves scant consideration. The technical requirements for filing an appeal are not
sacrosanct. It has been held that while the requirements for perfecting an appeal must be strictly followed as they are
considered indispensable interdictions against needless delays and for orderly discharge of judicial business, the law does admit
of exceptions when warranted by circumstances.8 In the present case, the CA cannot be faulted in choosing to overlook the

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technical defects of respondent’s appeal. After all, technicality should not be allowed to stand in the way of equitably and
completely resolving the rights and obligations of the parties.9
The Court shall now resolve the substantive issues raised by petitioners.
It is well settled that in ejectment suits, the only issue for resolution is the physical or material possession of the property
involved, independent of any claim of ownership by any of the party litigants. However, the issue of ownership may be
provisionally ruled upon for the sole purpose of determining who is entitled to possession de facto.10
In the present case, petitioners base their claim of right to possession on the theory that their father, Rosendo Lasam, was the
sole owner of the subject lot by virtue of the newly discovered last will and testament of Isabel Cuntapay bequeathing the same
to him. Respondent is allegedly holding the subject lot by mere tolerance of Rosendo Lasam and, upon the petitioners’ formal
demand on her to vacate the same, respondent’s right to possess it has expired.
On the other hand, respondent hinges her claim of possession on the legal conveyances made to her by the children of Isabel
Cuntapay by her first husband, namely, Maria, Rufo, Sado and Abdon. These conveyances were made through the sale and
donation by the said siblings of their respective portions in the subject lot to respondent as evidenced by the pertinent deeds.
The CA correctly held that, as between the respective claims of petitioners and respondent, the latter has a better right to
possess the subject lot.
As earlier stated, petitioners rely on the last will and testament of Isabel Cuntapay that they had allegedly newly discovered. On
the basis of this instrument, the MTCC and RTC ruled that petitioners have a better right to the possession of the subject lot
because, following the law on succession, it should be respected and should prevail over intestate succession.
However, contrary to the ruling of the MTCC and RTC, the purported last will and testament of Isabel Cuntapay could not
properly be relied upon to establish petitioners’ right to possess the subject lot because, without having been probated, the
said last will and testament could not be the source of any right.
Article 838 of the Civil Code is instructive:
Art. 838. No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of
Court.
The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. In such case, the
pertinent provisions of the Rules of Court for the allowance of wills after the testator’s death shall govern.
The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of
the testator.
Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be
conclusive as to its due execution.
In Cañiza v. Court of Appeals,11 the Court ruled that: "[a] will is essentially ambulatory; at any time prior to the testator’s death,
it may be changed or revoked; and until admitted to probate, it has no effect whatever and no right can be claimed thereunder,
the law being quite explicit: ‘No will shall pass either real or personal property unless it is proved and allowed in accordance
with the Rules of Court.’"12
Dr. Tolentino, an eminent authority on civil law, also explained that "[b]efore any will can have force or validity it must be
probated. To probate a will means to prove before some officer or tribunal, vested by law with authority for that purpose, that
the instrument offered to be proved is the last will and testament of the deceased person whose testamentary act it is alleged
to be, and that it has been executed, attested and published as required by law, and that the testator was of sound and
disposing mind. It is a proceeding to establish the validity of the will."13 Moreover, the presentation of the will for probate is
mandatory and is a matter of public policy.14
Following the above truisms, the MTCC and RTC, therefore, erroneously ruled that petitioners have a better right to possess the
subject lot on the basis of the purported last will and testament of Isabel Cuntapay, which, to date, has not been probated.
Stated in another manner, Isabel Cuntapay’s last will and testament, which has not been probated, has no effect whatever and
petitioners cannot claim any right thereunder.
Hence, the CA correctly held that, as against petitioners’ claim, respondent has shown a better right of possession over the
subject lot as evidenced by the deeds of conveyances executed in her favor by the children of Isabel Cuntapay by her first
marriage.
Contrary to the claim of petitioners, the dismissal of respondent’s action for partition in Civil Case No. 4917 before the RTC
(Branch 3) of Tuguegarao City does not constitute res judicata on the matter of the validity of the said conveyances or even as

192
to the issue of the ownership of the subject lot. The order dismissing respondent’s action for partition in Civil Case No. 4917
stated thus:
For resolution is a motion to dismiss based on defendants’ [referring to the petitioners herein] affirmative defenses consisting
inter alia in the discovery of a last will and testament of Isabel Cuntapay, the original owner of the land in dispute.
xxx
It appears, however, that the last will and testament of the late Isabel Cuntapay has not yet been allowed in probate, hence,
there is an imperative need to petition the court for the allowance of said will to determine once and for all the proper
legitimes of legatees and devisees before any partition of the property may be judicially adjudicated.
It is an elementary rule in law that testate proceedings take precedence over any other action especially where the will evinces
the intent of the testator to dispose of his whole estate.
With the discovery of the will of the late Isabel Cuntapay in favor of the defendants, the Court can order the filing of a petition
for the probate of the same by the interested party.
WHEREFORE, in light of the foregoing considerations, let the above-entitled case be as it is hereby DISMISSED.
SO ORDERED.15
For there to be res judicata, the following elements must be present: (1) finality of the former judgment; (2) the court which
rendered it had jurisdiction over the subject matter and the parties; (3) it must be a judgment on the merits; and (4) there must
be, between the first and second actions, identity of parties, subject matter and causes of action. 16 The third requisite, i.e., that
the former judgment must be a judgment on the merits, is not present between the action for partition and the complaint a
quo for unlawful detainer. As aptly observed by the CA:
Our reading of the Orders (dated June 16, 1997 and October 13, 1997) in Civil Case No. 4917 reveals that the RTC, Branch 3,
Tuguegarao, Cagayan, dismissed the complaint for partition because of the discovery of the alleged last will and testament of
Isabel Cuntapay. The court did not declare respondents [referring to the petitioners herein] the owners of the disputed
property. It simply ordered them to petition the court for the allowance of the will to determine the proper legitimes of the
heirs prior to any partition. Instead of filing the appropriate petition for the probate of Isabel Cuntapay’s will, the respondents
filed the present complaint for unlawful detainer. Viewed from this perspective, we have no doubt that the court’s Orders cited
by the respondents are not "judgments on the merits" that would result in the application of the principle of res judicata.
Where the trial court merely refrained from proceeding with the case and granted the motion to dismiss with some clarification
without conducting a trial on the merits, there is no res judicata.17
Further, it is not quite correct for petitioners to contend that the children of Isabel Cuntapay by her first marriage could not
have conveyed portions of the subject lot to respondent, as she had claimed, because until the present, it is still covered by OCT
Nos. 196 and 1032 under the names of Pedro and Leona Cuntapay. To recall, it was already agreed by the heirs of the said
spouses in a Partition Agreement dated December 28, 1979 that the subject lot would belong to Isabel Cuntapay. The latter
died leaving her six children by both marriages as heirs. Considering that her purported last will and testament has, as yet, no
force and effect for not having been probated, her six children are deemed to be co-owners of the subject lot having their
respective pro indiviso shares. The conveyances made by the children of Isabel Cuntapay by her first marriage of their
respective pro indiviso shares in the subject lot to respondent are valid because the law recognizes the substantive right of heirs
to dispose of their ideal share in the co-heirship and/co-ownership among the heirs. The Court had expounded the principle in
this wise:
This Court had the occasion to rule that there is no doubt that an heir can sell whatever right, interest, or participation he may
have in the property under administration. This is a matter which comes under the jurisdiction of the probate court.
The right of an heir to dispose of the decedent’s property, even if the same is under administration, is based on the Civil Code
provision stating that the possession of hereditary property is deemed transmitted to the heir without interruption and from
the moment of the death of the decedent, in case the inheritance is accepted. Where there are however, two or more heirs,
the whole estate of the decedent is, before its partition, owned in common by such heirs.
The Civil Code, under the provisions of co-ownership, further qualifies this right. Although it is mandated that each co-owner
shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and thus may alienate, assign or
mortgage it, and even substitute another person in its enjoyment, the effect of the alienation or the mortgage, with respect to
the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the co-
ownership. In other words, the law does not prohibit a co-owner from selling, alienating or mortgaging his ideal share in the
property held in common.

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As early as 1942, this Court has recognized said right of an heir to dispose of property under administration. In the case of Teves
de Jakosalem vs. Rafols, et al., it was said that the sale made by an heir of his share in an inheritance, subject to the result of the
pending administration, in no wise, stands in the way of such administration. The Court then relied on the provision of the old
Civil Code, Article 440 and Article 399 which are still in force as Article 533 and Article 493, respectively, in the new Civil Code.
The Court also cited the words of a noted civilist, Manresa: "Upon the death of a person, each of his heirs ‘becomes the
undivided owner of the whole estate left with respect to the part or portion which might be adjudicated to him, a community
of ownership being thus formed among the co-owners of the estate which remains undivided.’"18
Contrary to the assertion of petitioners, therefore, the conveyances made by the children of Isabel Cuntapay by her first
marriage to respondent are valid insofar as their pro indiviso shares are concerned. Moreover, the CA justifiably held that these
conveyances, as evidenced by the deed of donation and deed of sale presented by respondent, coupled with the fact that she
has been in possession of the subject lot since 1955, establish that respondent has a better right to possess the same as against
petitioners whose claim is largely based on Isabel Cuntapay’s last will and testament which, to date, has not been probated;
hence, has no force and effect and under which no right can be claimed by petitioners. Significantly, the probative value of the
other evidence relied upon by petitioners to support their claim, which was the affidavit of Heliodoro Turingan, was not passed
upon by the MTCC and the RTC. Their respective decisions did not even mention the same.
In conclusion, it is well to stress the CA’s admonition that –
x x x our ruling on the issue of physical possession does not affect title to the property nor constitute a binding and conclusive
adjudication on the merits on the issue of ownership. The parties are not precluded from filing the appropriate action directly
contesting the ownership of or the title to the property.19
Likewise, it is therefore in this context that the CA’s finding on the validity of Isabel Cuntapay’s last will and testament must be
considered. Such is merely a provisional ruling thereon for the sole purpose of determining who is entitled to possession de
facto.
WHEREFORE, premises considered, the petition is DENIED. The assailed Decision dated February 16, 2005 and the Resolution
dated May 17, 2005 of the Court of Appeals in CA-G.R. SP No. 80032 are AFFIRMED.
SO ORDERED.

194
G.R. Nos. 140371-72 November 27, 2006
DY YIENG SEANGIO, BARBARA D. SEANGIO and VIRGINIA D. SEANGIO, Petitioners,
vs.
HON. AMOR A. REYES, in her capacity as Presiding Judge, Regional Trial Court, National Capital Judicial Region, Branch 21,
Manila, ALFREDO D. SEANGIO, ALBERTO D. SEANGIO, ELISA D. SEANGIO-SANTOS, VICTOR D. SEANGIO, ALFONSO D.
SEANGIO, SHIRLEY D. SEANGIO-LIM, BETTY D. SEANGIO-OBAS and JAMES D. SEANGIO, Respondents.
DECISION
AZCUNA, J.:
This is a petition for certiorari1 with application for the issuance of a writ of preliminary injunction and/or temporary restraining
order seeking the nullification of the orders, dated August 10, 1999 and October 14, 1999, of the Regional Trial Court of Manila,
Branch 21 (the RTC), dismissing the petition for probate on the ground of preterition, in the consolidated cases, docketed as SP.
Proc. No. 98-90870 and SP. Proc. No. 99-93396, and entitled, "In the Matter of the Intestate Estate of Segundo C. Seangio v.
Alfredo D. Seangio, et al." and "In the Matter of the Probate of the Will of Segundo C. Seangio v. Dy Yieng Seangio, Barbara D.
Seangio and Virginia Seangio."
The facts of the cases are as follows:
On September 21, 1988, private respondents filed a petition for the settlement of the intestate estate of the late Segundo
Seangio, docketed as Sp. Proc. No. 98–90870 of the RTC, and praying for the appointment of private respondent Elisa D.
Seangio–Santos as special administrator and guardian ad litem of petitioner Dy Yieng Seangio.
Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed the petition. They contended that: 1) Dy Yieng is still
very healthy and in full command of her faculties; 2) the deceased Segundo executed a general power of attorney in favor of
Virginia giving her the power to manage and exercise control and supervision over his business in the Philippines; 3) Virginia is
the most competent and qualified to serve as the administrator of the estate of Segundo because she is a certified public
accountant; and, 4) Segundo left a holographic will, dated September 20, 1995, disinheriting one of the private respondents,
Alfredo Seangio, for cause. In view of the purported holographic will, petitioners averred that in the event the decedent is
found to have left a will, the intestate proceedings are to be automatically suspended and replaced by the proceedings for the
probate of the will.
On April 7, 1999, a petition for the probate of the holographic will of Segundo, docketed as SP. Proc. No. 99–93396, was filed by
petitioners before the RTC. They likewise reiterated that the probate proceedings should take precedence over SP. Proc. No.
98–90870 because testate proceedings take precedence and enjoy priority over intestate proceedings.2
The document that petitioners refer to as Segundo’s holographic will is quoted, as follows:
Kasulatan sa pag-aalis ng mana
Tantunin ng sinuman
Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A Flores St., Ermita, Manila at nagtatalay ng maiwanag na pag-
iisip at disposisyon ay tahasan at hayagang inaalisan ko ng lahat at anumang mana ang paganay kong anak na si Alfredo Seangio
dahil siya ay naging lapastangan sa akin at isan beses siya ng sasalita ng masama harapan ko at mga kapatid niya na si Virginia
Seangio labis kong kinasama ng loob ko at sasabe rin ni Alfredo sa akin na ako nasa ibabaw gayon gunit daratin ang araw na ako
nasa ilalim siya at siya nasa ibabaw.
Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin pagalan para makapagutang na kuarta siya at kanya asawa na si
Merna de los Reyes sa China Bangking Corporation na millon pesos at hindi ng babayad at hindi ng babayad ito ay nagdulot sa
aking ng malaking kahihiya sa mga may-ari at stockholders ng China Banking.
At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na mga custome[r] ng Travel Center of the Philippines na
pinagasiwaan ko at ng anak ko si Virginia.
Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak ko at hayanan kong inaalisan ng lahat at anoman mana na si
Alfredo at si Alfredo Seangio ay hindi ko siya anak at hindi siya makoha mana.
Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng Manila sa harap ng tatlong saksi. 3
(signed)
Segundo Seangio
Nilagdaan sa harap namin

195
(signed)
Dy Yieng Seangio (signed)
Unang Saksi ikalawang saksi
(signed)
ikatlong saksi
On May 29, 1999, upon petitioners’ motion, SP. Proc. No. 98–90870 and SP. Proc. No. 99–93396 were consolidated.4
On July 1, 1999, private respondents moved for the dismissal of the probate proceedings5 primarily on the ground that the
document purporting to be the holographic will of Segundo does not contain any disposition of the estate of the deceased and
thus does not meet the definition of a will under Article 783 of the Civil Code. According to private respondents, the will only
shows an alleged act of disinheritance by the decedent of his eldest son, Alfredo, and nothing else; that all other compulsory
heirs were not named nor instituted as heir, devisee or legatee, hence, there is preterition which would result to intestacy. Such
being the case, private respondents maintained that while procedurally the court is called upon to rule only on the extrinsic
validity of the will, it is not barred from delving into the intrinsic validity of the same, and ordering the dismissal of the petition
for probate when on the face of the will it is clear that it contains no testamentary disposition of the property of the decedent.
Petitioners filed their opposition to the motion to dismiss contending that: 1) generally, the authority of the probate court is
limited only to a determination of the extrinsic validity of the will; 2) private respondents question the intrinsic and not the
extrinsic validity of the will; 3) disinheritance constitutes a disposition of the estate of a decedent; and, 4) the rule on
preterition does not apply because Segundo’s will does not constitute a universal heir or heirs to the exclusion of one or more
compulsory heirs.6
On August 10, 1999, the RTC issued its assailed order, dismissing the petition for probate proceedings:
A perusal of the document termed as "will" by oppositors/petitioners Dy Yieng Seangio, et al., clearly shows that there is
preterition, as the only heirs mentioned thereat are Alfredo and Virginia. [T]he other heirs being omitted, Article 854 of the
New Civil Code thus applies. However, insofar as the widow Dy Yieng Seangio is concerned, Article 854 does not apply, she not
being a compulsory heir in the direct line.
As such, this Court is bound to dismiss this petition, for to do otherwise would amount to an abuse of discretion. The Supreme
Court in the case of Acain v. Intermediate Appellate Court [155 SCRA 100 (1987)] has made its position clear: "for …
respondents to have tolerated the probate of the will and allowed the case to progress when, on its face, the will appears to be
intrinsically void … would have been an exercise in futility. It would have meant a waste of time, effort, expense, plus added
futility. The trial court could have denied its probate outright or could have passed upon the intrinsic validity of the
testamentary provisions before the extrinsic validity of the will was resolved (underscoring supplied).
WHEREFORE, premises considered, the Motion to Suspend Proceedings is hereby DENIED for lack of merit. Special Proceedings
No. 99–93396 is hereby DISMISSED without pronouncement as to costs.
SO ORDERED.7
Petitioners’ motion for reconsideration was denied by the RTC in its order dated October 14, 1999.
Petitioners contend that:
THE RESPONDENT JUDGE ACTED IN EXCESS OF HER JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION AND DECIDED A QUESTION OF LAW NOT IN ACCORD WITH LAW AND JURISPRUDENCE IN
ISSUING THE QUESTIONED ORDERS, DATED 10 AUGUST 1999 AND 14 OCTOBER 1999 (ATTACHMENTS "A" AND "B" HEREOF)
CONSIDERING THAT:
I
THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING WITH SECTIONS 3 AND 4 OF RULE 76 OF THE RULES OF COURT ON THE
PROPER PROCEDURE FOR SETTING THE CASE FOR INITIAL HEARING FOR THE ESTABLISHMENT OF THE JURISDICTIONAL FACTS,
DISMISSED THE TESTATE CASE ON THE ALLEGED GROUND THAT THE TESTATOR’S WILL IS VOID ALLEGEDLY BECAUSE OF THE
EXISTENCE OF PRETERITION, WHICH GOES INTO THE INTRINSIC VALIDITY OF THE WILL, DESPITE THE FACT THAT IT IS A SETTLED
RULE THAT THE AUTHORITY OF PROBATE COURTS IS LIMITED ONLY TO A DETERMINATION OF THE EXTRINSIC VALIDITY OF THE
WILL, I.E., THE DUE EXECUTION THEREOF, THE TESTATOR’S TESTAMENTARY CAPACITY AND THE COMPLIANCE WITH THE
REQUISITES OR SOLEMNITIES PRESCRIBED BY LAW;
II

196
EVEN ASSUMING ARGUENDO THAT THE RESPONDENT JUDGE HAS THE AUTHORITY TO RULE UPON THE INTRINSIC VALIDITY OF
THE WILL OF THE TESTATOR, IT IS INDUBITABLE FROM THE FACE OF THE TESTATOR’S WILL THAT NO PRETERITON EXISTS AND
THAT THE WILL IS BOTH INTRINSICALLY AND EXTRINSICALLY VALID; AND,
III
RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE PROCEEDINGS IN THE INTESTATE CASE CONSIDERING THAT IT IS A
SETTLED RULE THAT TESTATE PROCEEDINGS TAKE PRECEDENCE OVER INTESTATE PROCEEDINGS.
Petitioners argue, as follows:
First, respondent judge did not comply with Sections 3 and 4 of Rule 76 of the Rules of Court which respectively mandate the
court to: a) fix the time and place for proving the will when all concerned may appear to contest the allowance thereof, and
cause notice of such time and place to be published three weeks successively previous to the appointed time in a newspaper of
general circulation; and, b) cause the mailing of said notice to the heirs, legatees and devisees of the testator Segundo;
Second, the holographic will does not contain any institution of an heir, but rather, as its title clearly states, Kasulatan ng Pag-
Aalis ng Mana, simply contains a disinheritance of a compulsory heir. Thus, there is no preterition in the decedent’s will and the
holographic will on its face is not intrinsically void;
Third, the testator intended all his compulsory heirs, petitioners and private respondents alike, with the sole exception of
Alfredo, to inherit his estate. None of the compulsory heirs in the direct line of Segundo were preterited in the holographic will
since there was no institution of an heir;
Fourth, inasmuch as it clearly appears from the face of the holographic will that it is both intrinsically and extrinsically valid,
respondent judge was mandated to proceed with the hearing of the testate case; and,
Lastly, the continuation of the proceedings in the intestate case will work injustice to petitioners, and will render nugatory the
disinheritance of Alfredo.
The purported holographic will of Segundo that was presented by petitioners was dated, signed and written by him in his own
handwriting. Except on the ground of preterition, private respondents did not raise any issue as regards the authenticity of the
document.
The document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably showed Segundo’s intention of excluding his eldest son,
Alfredo, as an heir to his estate for the reasons that he cited therein. In effect, Alfredo was disinherited by Segundo.
For disinheritance to be valid, Article 916 of the Civil Code requires that the same must be effected through a will wherein the
legal cause therefor shall be specified. With regard to the reasons for the disinheritance that were stated by Segundo in his
document, the Court believes that the incidents, taken as a whole, can be considered a form of maltreatment of Segundo by his
son, Alfredo, and that the matter presents a sufficient cause for the disinheritance of a child or descendant under Article 919 of
the Civil Code:
Article 919. The following shall be sufficient causes for the disinheritance of children and descendants, legitimate as well as
illegitimate:
(1) When a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse,
descendants, or ascendants;
(2) When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or
more, if the accusation has been found groundless;
(3) When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator;
(4) When a child or descendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to
change one already made;
(5) A refusal without justifiable cause to support the parents or ascendant who disinherit such child or descendant;
(6) Maltreatment of the testator by word or deed, by the child or descendant;8
(7) When a child or descendant leads a dishonorable or disgraceful life;
(8) Conviction of a crime which carries with it the penalty of civil interdiction.
Now, the critical issue to be determined is whether the document executed by Segundo can be considered as a holographic will.

197
A holographic will, as provided under Article 810 of the Civil Code, must be entirely written, dated, and signed by the hand of
the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed.
Segundo’s document, although it may initially come across as a mere disinheritance instrument, conforms to the formalities of
a holographic will prescribed by law. It is written, dated and signed by the hand of Segundo himself. An intent to dispose mortis
causa[9] can be clearly deduced from the terms of the instrument, and while it does not make an affirmative disposition of the
latter’s property, the disinheritance of Alfredo, nonetheless, is an act of disposition in itself. In other words, the disinheritance
results in the disposition of the property of the testator Segundo in favor of those who would succeed in the absence of
Alfredo.10
Moreover, it is a fundamental principle that the intent or the will of the testator, expressed in the form and within the limits
prescribed by law, must be recognized as the supreme law in succession. All rules of construction are designed to ascertain and
give effect to that intention. It is only when the intention of the testator is contrary to law, morals, or public policy that it
cannot be given effect.11
Holographic wills, therefore, being usually prepared by one who is not learned in the law, as illustrated in the present case,
should be construed more liberally than the ones drawn by an expert, taking into account the circumstances surrounding the
execution of the instrument and the intention of the testator.12 In this regard, the Court is convinced that the document, even if
captioned as Kasulatan ng Pag-Aalis ng Mana, was intended by Segundo to be his last testamentary act and was executed by
him in accordance with law in the form of a holographic will. Unless the will is probated, 13 the disinheritance cannot be given
effect.14
With regard to the issue on preterition,15 the Court believes that the compulsory heirs in the direct line were not preterited in
the will. It was, in the Court’s opinion, Segundo’s last expression to bequeath his estate to all his compulsory heirs, with the sole
exception of Alfredo. Also, Segundo did not institute an heir16 to the exclusion of his other compulsory heirs. The mere mention
of the name of one of the petitioners, Virginia, in the document did not operate to institute her as the universal heir. Her name
was included plainly as a witness to the altercation between Segundo and his son, Alfredo.1âwphi1
Considering that the questioned document is Segundo’s holographic will, and that the law favors testacy over intestacy, the
probate of the will cannot be dispensed with. Article 838 of the Civil Code provides that no will shall pass either real or personal
property unless it is proved and allowed in accordance with the Rules of Court. Thus, unless the will is probated, the right of a
person to dispose of his property may be rendered nugatory.17
In view of the foregoing, the trial court, therefore, should have allowed the holographic will to be probated. It is settled that
testate proceedings for the settlement of the estate of the decedent take precedence over intestate proceedings for the same
purpose.18
WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court of Manila, Branch 21, dated August 10, 1999 and
October 14, 1999, are set aside. Respondent judge is directed to reinstate and hear SP Proc. No. 99-93396 for the allowance of
the holographic will of Segundo Seangio. The intestate case or SP. Proc. No. 98-90870 is hereby suspended until the termination
of the aforesaid testate proceedings.
No costs.
SO ORDERED.

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G.R. No. L-48840 December 29, 1943
ERNESTO M. GUEVARA, petitioner-appellant,
vs.
ROSARIO GUEVARA and her husband PEDRO BUISON, respondent-appellees.
Primacias, Abad, Mencias & Castillo for appellant.
Pedro C. Quinto for appellees.

OZAETA, J.:
Ernesto M. Guevarra and Rosario Guevara, ligitimate son and natural daughter, respectively, of the deceased Victorino L.
Guevara, are litigating here over their inheritance from the latter. The action was commenced on November 12, 1937, by
Rosario Guevara to recover from Ernesto Guevara what she claims to be her strict ligitime as an acknowledged natural daughter
of the deceased — to wit, a portion of 423,492 square meters of a large parcel of land described in original certificate of title
No. 51691 of the province of Pangasinan, issued in the name of Ernesto M. Guervara — and to order the latter to pay her
P6,000 plus P2,000 a year as damages for withholding such legitime from her. The defendant answered the complaint
contending that whatever right or rights the plaintiff might have had, had been barred by the operation of law.
It appears that on August 26, 1931, Victorino L. Guevara executed a will (exhibit A), apparently with all the formalities of the
law, wherein he made the following bequests: To his stepdaughter Candida Guevara, a pair of earrings worth P150 and a gold
chain worth P40; to his son Ernesto M. Guevara, a gold ring worth P180 and all the furniture, pictures, statues, and other
religious objects found in the residence of the testator in Poblacion Sur, Bayambang, Pangasinan; "a mi hija Rosario Guevara," a
pair of earrings worth P120; to his stepson Piuo Guevara, a ring worth P120; and to his wife by second marriage, Angustia
Posadas, various pieces of jewelry worth P1,020.
He also made the following devises: "A mis hijos Rosario Guevara y Ernesto M. Guevara y a mis hijastros, Vivencio, Eduviges,
Dionisia, Candida y Pio, apellidados Guevara," a residential lot with its improvements situate in the town of Bayambang,
Pangasinan, having an area of 960 square meters and assessed at P540; to his wife Angustia Posadas he confirmed the donation
propter nuptias theretofore made by him to her of a portion of 25 hectares of the large parcel of land of 259-odd hectares
described in plan Psu-66618. He also devised to her a portion of 5 hectares of the same parcel of land by way of complete
settlement of her usufructurary right.1awphil.net
He set aside 100 hectares of the same parcel of land to be disposed of either by him during his lifetime or by his attorney-in-fact
Ernesto M. Guevara in order to pay all his pending debts and to degray his expenses and those of his family us to the time of his
death.
The remainder of said parcel of land his disposed of in the following manner:
(d). — Toda la porcion restante de mi terreno arriba descrito, de la extension superficial aproximada de ciento veintinueve
(129) hectareas setenta (70) areas, y veiticinco (25) centiares, con todas sus mejoras existentes en la misma, dejo y distribuyo,
pro-indiviso, a mis siguientes herederos como sigue:
A mi hijo legitimo, Ernesto M. Guevara, ciento ocho (108) hectareas, ocho (8) areas y cincuenta y cuatro (54) centiareas, hacia la
parte que colinda al Oeste de las cien (100) hectareas referidas en el inciso (a) de este parrafo del testamento, como su
propiedad absoluta y exclusiva, en la cual extension superficial estan incluidas cuarenta y tres (43) hectareas, veintitres (23)
areas y cuarenta y dos (42) centiareas que le doy en concepto de mejora.
A mi hija natural reconocida, Rosario Guevara, veintiun (21) hectareas, sesenta y un (61) areas y setenta y un (71) centiareas,
que es la parte restante.
Duodecimo. — Nombro por la presente como Albacea Testamentario a mi hijo Ernesto M. Guevara, con relevacion de fianza. Y
una vez legalizado este testamento, y en cuanto sea posible, es mi deseo, que los herederos y legatarios aqui nombrados se
repartan extrajudicialmente mis bienes de conformidad con mis disposiciones arriba consignadas.
Subsequently, and on July 12, 1933, Victorino L. Guevarra executed whereby he conveyed to him the southern half of the large
parcel of land of which he had theretofore disposed by the will above mentioned, inconsideration of the sum of P1 and other
valuable considerations, among which were the payment of all his debts and obligations amounting to not less than P16,500,
his maintenance up to his death, and the expenses of his last illness and funeral expenses. As to the northern half of the same
parcel of land, he declared: "Hago constar tambien que reconozco a mi referido hijo Ernesto M. guevara como dueño de la
mitad norte de la totalidad y conjunto de los referidos terrenos por haberlos comprado de su propio peculio del Sr. Rafael T.
Puzon a quien habia vendido con anterioridad."

199
On September 27, 1933, final decree of registration was issued in land registration case No. 15174 of the Court of First Instance
of Pangasinan, and pursuant thereto original certificate of title No. 51691 of the same province was issued on October 12 of the
same year in favor of Ernesto M. Guevara over the whole parcel of land described in the deed of sale above referred to. The
registration proceeding had been commenced on November 1, 1932, by Victorino L. Guevara and Ernesto M. Guevara as
applicants, with Rosario, among others, as oppositor; but before the trial of the case Victorino L. Guevara withdrew as applicant
and Rosario Guevara and her co-oppositors also withdrew their opposition, thereby facilitating the issuance of the title in the
name of Ernesto M. Guevara alone.
On September 27, 1933, Victorino L. Guevarra died. His last will and testament, however, was never presented to the court for
probate, nor has any administration proceeding ever been instituted for the settlement of his estate. Whether the various
legatees mentioned in the will have received their respective legacies or have even been given due notice of the execution of
said will and of the dispositions therein made in their favor, does not affirmatively appear from the record of this case. Ever
since the death of Victorino L. Guevara, his only legitimate son Ernesto M. Guevara appears to have possessed the land
adjudicated to him in the registration proceeding and to have disposed of various portions thereof for the purpose of paying
the debts left by his father.
In the meantime Rosario Guevara, who appears to have had her father's last will and testament in her custody, did nothing
judicially to invoke the testamentary dispositions made therein in her favor, whereby the testator acknowledged her as his
natural daughter and, aside from certain legacies and bequests, devised to her a portion of 21.6171 hectares of the large parcel
of land described in the will. But a little over four years after the testor's demise, she (assisted by her husband) commenced the
present action against Ernesto M. Guevara alone for the purpose hereinbefore indicated; and it was only during the trial of this
case that she presented the will to the court, not for the purpose of having it probated but only to prove that the deceased
Victirino L. Guevara had acknowledged her as his natural daughter. Upon that proof of acknowledgment she claimed her share
of the inheritance from him, but on the theory or assumption that he died intestate, because the will had not been probated,
for which reason, she asserted, the betterment therein made by the testator in favor of his legitimate son Ernesto M. Guevara
should be disregarded. Both the trial court and the Court of appeals sustained that theory.
Two principal questions are before us for determination: (1) the legality of the procedure adopted by the plaintiff (respondent
herein) Rosario Guevara; and (2) the efficacy of the deed of sale exhibit 2 and the effect of the certificate of title issued to the
defendant (petitioner herein) Ernesto M. Guevara.
I
We cannot sanction the procedure adopted by the respondent Rosario Guevara, it being in our opinion in violation of
procedural law and an attempt to circumvent and disregard the last will and testament of the decedent. The Code of Civil
Procedure, which was in force up to the time this case was decided by the trial court, contains the following pertinent
provisions:
Sec. 625. Allowance Necessary, and Conclusive as to Execution. — No will shall pass either the real or personal estate, unless it
is proved and allowed in the Court of First Instance, or by appeal to the Supreme Court; and the allowance by the court of a will
of real and personal estate shall be conclusive as to its due execution.
Sec. 626. Custodian of Will to Deliver. — The person who has the custody of a will shall, within thirty days after he knows of the
death of the testator, deliver the will into the court which has jurisdiction, or to the executor named in the will.
Sec. 627. Executor to Present Will and Accept or Refuse Trust. — A person named as executor in a will, shall within thirty days
after he knows of the death of the testor, or within thirty days after he knows that he is named executor, if he obtained such
knowledge after knowing of the death of the testor, present such will to the court which has jurisdiction, unless the will has
been otherwise returned to said court, and shall, within such period, signify to the court his acceptance of the trust, or make
known in writing his refusal to accept it.
Sec. 628. Penalty. — A person who neglects any of the duties required in the two proceeding sections, unless he gives a
satisfactory excuse to the court, shall be subject to a fine not exceeding one thousand dollars.
Sec. 629. Person Retaining Will may be Committed. — If a person having custody of a will after the death of the testator
neglects without reasonable cause to deliver the same to the court having jurisdiction, after notice by the court so to do, he
may be committed to the prison of the province by a warrant issued by the court, and there kept in close confinement until he
delivers the will.
The foregoing provisions are now embodied in Rule 76 of the new Rules of Court, which took effect on July 1, 1940.
The proceeding for the probate of a will is one in rem, with notice by publication to the whole world and with personal notice to
each of the known heirs, legatees, and devisees of the testator (section 630, C. c. P., and sections 3 and 4, Rule 77). Altho not
contested (section 5, Rule 77), the due execution of the will and the fact that the testator at the time of its execution was of

200
sound and disposing mind and not acting under duress, menace, and undue influence or fraud, must be proved to the
satisfaction of the court, and only then may the will be legalized and given effect by means of a certificate of its allowance,
signed by the judge and attested by the seal of the court; and when the will devises real property, attested copies thereof and
of the certificate of allowance must be recorded in the register of deeds of the province in which the land lies. (Section 12, Rule
77, and section 624, C. C. P.)
It will readily be seen from the above provisions of the law that the presentation of a will to the court for probate is mandatory
and its allowance by the court is essential and indispensable to its efficacy. To assure and compel the probate of will, the law
punishes a person who neglects his duty to present it to the court with a fine not exceeding P2,000, and if he should persist in
not presenting it, he may be committed to prision and kept there until he delivers the will.
The Court of Appeals took express notice of these requirements of the law and held that a will, unless probated, is ineffective.
Nevertheless it sanctioned the procedure adopted by the respondent for the following reasons:
The majority of the Court is of the opinion that if this case is dismissed ordering the filing of testate proceedings, it would cause
injustice, incovenience, delay, and much expense to the parties, and that therefore, it is preferable to leave them in the very
status which they themselves have chosen, and to decide their controversy once and for all, since, in a similar case, the
Supreme Court applied that same criterion (Leaño vs. Leaño, supra), which is now sanctioned by section 1 of Rule 74 of the
Rules of Court. Besides, section 6 of Rule 124 provides that, if the procedure which the court ought to follow in the exercise of
its jurisdiction is not specifically pointed out by the Rules of Court, any suitable process or mode of procedure may be adopted
which appears most consistent to the spirit of the said Rules. Hence, we declare the action instituted by the plaintiff to be in
accordance with law.
Let us look into the validity of these considerations. Section 1 of Rule 74 provides as follows:
Section 1. Extrajudicial settlement by agreement between heirs. — If the decedent left no debts and the heirs and legatees are
all of age, or the minors are represented by their judicial guardians, the parties may, without securing letters of administration,
divide the estate among themselves as they see fit by means of a public instrument filed in the office of the register of deeds,
and should they disagree, they may do so in an ordinary action of partition. If there is only one heir or one legatee, he may
adjudicate to himself the entire estate by means of an affidavit filed in the office of the register of deeds. It shall be presumed
that the decedent left no debts if no creditor files a petition for letters of administration within two years after the death of the
decedent.
That is a modification of section 596 of the Code of Civil Procedure, which reads as follows:
Sec. 596. Settlement of Certain Intestates Without Legal Proceedings. — Whenever all the heirs of a person who died intestate
are of lawful age and legal capacity and there are no debts due from the estate, or all the debts have been paid the heirs may,
by agreement duly executed in writing by all of them, and not otherwise, apportion and divide the estate among themselves, as
they may see fit, without proceedings in court.
The implication is that by the omission of the word "intestate" and the use of the word "legatees" in section 1 of Rule 74, a
summary extrajudicial settlement of a deceased person's estate, whether he died testate or intestate, may be made under the
conditions specified. Even if we give retroactive effect to section 1 of Rule 74 and apply it here, as the Court of Appeals did, we
do not believe it sanctions the nonpresentation of a will for probate and much less the nullification of such will thru the failure
of its custodian to present it to the court for probate; for such a result is precisely what Rule 76 sedulously provides against.
Section 1 of Rule 74 merely authorizes the extrajudicial or judicial partition of the estate of a decedent "without securing letter
of administration." It does not say that in case the decedent left a will the heirs and legatees may divide the estate among
themselves without the necessity of presenting the will to the court for probate. The petition to probate a will and the petition
to issue letters of administration are two different things, altho both may be made in the same case. the allowance of a will
precedes the issuance of letters testamentary or of administration (section 4, Rule 78). One can have a will probated without
necessarily securing letters testamentary or of administration. We hold that under section 1 of Rule 74, in relation to Rule 76, if
the decedent left a will and no debts and the heirs and legatees desire to make an extrajudicial partition of the estate, they
must first present that will to the court for probate and divide the estate in accordance with the will. They may not disregard
the provisions of the will unless those provisions are contrary to law. Neither may they so away with the presentation of the will
to the court for probate, because such suppression of the will is contrary to law and public policy. The law enjoins the probate
of the will and public policy requires it, because unless the will is probated and notice thereof given to the whole world, the
right of a person to dispose of his property by will may be rendered nugatory, as is attempted to be done in the instant case.
Absent legatees and devisees, or such of them as may have no knowledge of the will, could be cheated of their inheritance thru
the collusion of some of the heirs who might agree to the partition of the estate among themselves to the exclusion of others.
In the instant case there is no showing that the various legatees other than the present litigants had received their respective
legacies or that they had knowledge of the existence and of the provisions of the will. Their right under the will cannot be

201
disregarded, nor may those rights be obliterated on account of the failure or refusal of the custodian of the will to present it to
the court for probate.
Even if the decedent left no debts and nobdy raises any question as to the authenticity and due execution of the will, none of
the heirs may sue for the partition of the estate in accordance with that will without first securing its allowance or probate by
the court, first, because the law expressly provides that "no will shall pass either real or personal estate unless it is proved and
allowed in the proper court"; and, second, because the probate of a will, which is a proceeding in rem, cannot be dispensed
with the substituted by any other proceeding, judicial or extrajudicial, without offending against public policy designed to
effectuate the testator's right to dispose of his property by will in accordance with law and to protect the rights of the heirs and
legatees under the will thru the means provided by law, among which are the publication and the personal notices to each and
all of said heirs and legatees. Nor may the court approve and allow the will presented in evidence in such an action for
partition, which is one in personam, any more than it could decree the registration under the Torrens system of the land
involved in an ordinary action for reinvindicacion or partition.
We therefore believe and so hold that section 1 of Rule 74, relied upon by the Court of Appeals, does not sanction the
procedure adopted by the respondent.
The case of Leaño vs. Leaño (25 Phil., 180), cited by the Court of Appeals, like section 1 of Rule 74, sanctions the extrajudicial
partition by the heirs of the properties left by a decedent, but not the nonpresentation of a will for probate. In that case one
Paulina Ver executed a will on October 11, 1902, and died on November 1, 1902. Her will was presented for probate on
November 10, 1902, and was approved and allowed by the Court on August 16, 1904. In the meantime, and on November 10,
1902, the heirs went ahead and divided the properties among themselves and some of them subsequently sold and disposed of
their shares to third persons. It does not affirmatively appear in the decision in that case that the partition made by the heirs
was not in accordance with the will or that they in any way disregarded the will. In closing the case by its order dated
September 1, 1911, the trial court validated the partition, and one of the heirs, Cunegunda Leaño, appealed. In deciding the
appeal this Court said:
The principal assignment of error is that the lower court committed an error in deciding that the heirs and legatees of the
estate of Dña. Paulina Ver had voluntarily divided the estate among themselves.
In resolving that question this Court said:
In view of the positive finding of the judge of the lower court that there had been a voluntary partition of the estate among the
heirs and legatees, and in the absence of positive proof to the contrary, we must conclude that the lower court had some
evidence to support its conclusion.
Thus it will be seen that as a matter of fact no question of law was raised and decided in that case. That decision cannot be
relied upon as an authority for the unprecedented and unheard of procedure adopted by the respondent whereby she seeks to
prove her status as an acknowledged natural child of the decedent by his will and attempts to nullify and circumvent the
testamentary dispositions made by him by not presenting the will to the court for probate and by claiming her legitime as an
acknowledged natural child on the basis of intestacy; and that in the face of express mandatory provisions of the law requiring
her to present the will to the court for probate.
In the subsequent case of Riosa vs. Rocha (1926), 48 Phil. 737, this Court departed from the procedure sanctioned by the trial
court and impliedly approved by this Court in the Leaño case, by holding that an extrajudicial partition is not proper in testate
succession. In the Riosa case the Court, speaking thru Chief Justice Avanceña, held:
1. EXTRAJUDICIAL PARTITION; NOT PROPER IN TESTATE SUCCESSION. — Section 596 of the Code of Civil Procedure, authorizing
the heirs of a person who dies intestate to make extrajudicial partition of the property of the deceased, without going into any
court of justice, makes express reference to intestate succession, and therefore excludes testate succession.
2. ID.; EFFECTS OF; TESTATE SUCCESSION. — In the instant case, which is a testate succession, the heirs made an extrajudicial
partition of the estate and at the same time instituted proceeding for the probate of the will and the administration of the
estate. When the time came for making the partition, they submitted to the court the extrajudicial partition previously made by
them, which the court approved. Held: That for the purposes of the reservation and the rights and obligations created thereby,
in connection with the relatives benefited, the property must not be deemed transmitted to the heirs from the time the
extrajudicial partition was made, but from the time said partition was approved by the court. (Syllabus.)
The Court of Appeals also cites section 6 of Rule 124, which provides that if the procedure which the court ought to follow in
the exercise of its jurisdiction is not specifically pointed out by the Rules of Court, any suitable process for mode of proceeding
may be adopted which appears most conformable to the spirit of the said Rules. That provision is not applicable here for the
simple reason that the procedure which the court ought to follow in the exercise of its jurisdiction is specifically pointed out
and prescribed in detail by Rules 74, 76, and 77 of the Rules of Court.

202
The Court of Appeals also said "that if this case is dismissed, ordering the filing of testate proceedings, it would cause injustice,
inconvenience, delay, and much expense to the parties." We see no injustice in requiring the plaintiff not to violate but to
comply with the law. On the contrary, an injustice might be committed against the other heirs and legatees mentioned in the
will if the attempt of the plaintiff to nullify said will by not presenting it to the court for probate should be sanctioned. As to the
inconvenience, delay, and expense, the plaintiff herself is to blame because she was the custodian of the will and she violated
the duty imposed upon her by sections 2, 4, and 5 of Rule 76, which command her to deliver said will to the court on pain of a
fine not exceeding P2,000 and of imprisonment for contempt of court. As for the defendant, he is not complaining of
inconvenience, delay, and expense, but on the contrary he is insisting that the procedure prescribed by law be followed by the
plaintiff.
Our conclusion is that the Court of Appeals erred in declaring the action instituted by the plaintiff to be in accordance with law.
It also erred in awarding relief to the plaintiff in this action on the basis of intestacy of the decedent notwithstanding the
proven existence of a will left by him and solely because said will has not been probated due to the failure of the plaintiff as
custodian thereof to comply with the duty imposed upon her by the law.
It is apparent that the defendant Ernesto M. Guevara, who was named executor in said will, did not take any step to have it
presented to the court for probate and did not signify his acceptance of the trust or refusal to accept it as required by section 3
of Rule 76 (formerly section 627 of the Code of Civil Procedure), because his contention is that said will, insofar as the large
parcel of land in litigation is concerned, has been superseded by the deed of sale exhibit 2 and by the subsequent issuance of
the Torrens certificate of title in his favor.
II
This brings us to the consideration of the second question, referring to the efficacy of the deed of sale exhibit 2 and the effect
of the certificate of titled issued to the defendant Ernesto M. Guevara. So that the parties may not have litigated here in vain
insofar as that question is concerned, we deem it proper to decide it now and obviate the necessity of a new action.
The deed of sale exhibit 2 executed by and between Victorino L. Guevara and Ernesto M. Guevara before a notary public on July
12, 1933, may be divided into two parts: (a) insofar as it disposes of and conveys to Ernesto M. Guevara the southern half of
Victorino L. Guevara's hacienda of 259-odd hectares in consideration of P1 and other valuable considerations therein
mentioned; and (b) insofar as it declares that Ernesto M. Guevara became the owner of the northern half of the same hacienda
by repurchasing it with his own money from Rafael T. Puzon.
A. As to the conveyance of the southern half of the hacienda to Ernesto M. Guevara in consideration of the latter's assumption
of the obligation to pay all the debts of the deceased, the Court of Appeals found it to be valid and efficacious because: "(a) it
has not been proven that the charges imposed as a condition is [are] less than the value of the property; and (b) neither has it
been proven that the defendant did not comply with the conditions imposed upon him in the deed of transfer." As a matter of
fact the Court of Appeals found" "It appears that the defendant has been paying the debts left by his father. To accomplish this,
he had to alienate considerable portions of the above-mentioned land. And we cannot brand such alienation as anomalous
unless it is proven that they have exceeded the value of what he has acquired by virtue of the deed of July 12, 1933, and that of
his corresponding share in the inheritance." The finding of the Court of Appeals on this aspect of the case is final and conclusive
upon the respondent, who did not appeal therefrom.
B. With regard to the northern half of the hacienda, the findings of fact and of law made by the Court of Appeals are as follows:
The defendant has tried to prove that with his own money, he bought from Rafael Puzon one-half of the land in question, but
the Court a quo, after considering the evidence, found it not proven; we hold that such conclusion is well founded. The
acknowledgment by the deceased, Victorino L. Guevara, of the said transactions, which was inserted incidentally in the
document of July 12, 1933, is clearly belied by the fact that the money paid to Rafael Puzon came from Silvestre P. Coquia, to
whom Victorino L. Guevara had sold a parcel of land with the right of repurchase. The defendant, acting for his father, received
the money and delivered it to Rafael Puzon to redeem the land in question, and instead of executing a deed of redemption in
favor of Victorino L. Guevara, the latter executed a deed of sale in favor of the defendant.
The plaintiff avers that she withdrew her opposition to the registration of the land in the name of the defendant, because of the
latter's promise that after paying all the debt of their father, he would deliver to her and to the widow their corresponding
shares. As their father then was still alive, there was no reason to require the delivery of her share and that was why she did not
insist on her opposition, trusting on the reliability and sincerity of her brother's promise. The evidence shows that such promise
was really made. The registration of land under the Torrens system does not have the effect of altering the laws of succession,
or the rights of partition between coparceners, joint tenants, and other cotenants nor does it change or affect in any other way
any other rights and liabilities created by law and applicable to unregistered land (sec. 70, Land Registration Law). The plaintiff
is not, then, in estoppel, nor can the doctrine of res judicata be invoked against her claim. Under these circumstances, she has
the right to compel the defendant to deliver her corresponding share in the estate left by the deceased, Victorino L. Guevara.

203
In his tenth to fourteenth assignments of error the petitioner assails the foregoing findings of the Court of Appeals. But the
findings of fact made by said court are final and not reviewable by us on certiorari. The Court of Appeals found that the money
with which the petitioner repurchased the northern half of the land in question from Rafael Puzon was not his own but his
father's, it being the proceeds of the sale of a parcel of land made by the latter to Silvestre P. Coquia. Said court also found that
the respondent withdrew her opposition to the registration of the land in the name of the petitioner upon the latter's promise
that after paying all the debts of their father he would deliver to her and to the widow their corresponding shares. From these
facts, it results that the interested parties consented to the registration of the land in question in the name of Ernesto M.
Guevara alone subject to the implied trust on account of which he is under obligation to deliver and convey to them their
corresponding shares after all the debts of the original owner of said land had been paid. Such finding does not constitute a
reversal of the decision and decree of registration, which merely confirmed the petitioner's title; and in the absence of any
intervening innocent third party, the petitioner may be compelled to fulfill the promise by virtue of which he acquired his title.
That is authorized by section 70 of the Land Registration Act, cited by the Court of Appeals, and by the decision of this Court in
Severino vs. Severino, 44 Phil., 343, and the cases therein cited.
Upon this phase of the litigation, we affirm the finding of the Court of Appeals that the northern half of the land described in
the will exhibit A and in original certificate of title No. 51691 still belongs to the estate of the deceased Victorino L. Guevara. In
the event the petitioner Ernesto M. Guevara has alienated any portion thereof, he is under obligation to compensate the estate
with an equivalent portion from the southern half of said land that has not yet been sold. In other words, to the estate of
Victorino L. Guevara still belongs one half of the total area of the land described in said original certificate of title, to be taken
from such portions as have not yet been sold by the petitioner, the other half having been lawfully acquired by the latter in
consideration of his assuming the obligation to pay all the debts of the deceased.
Wherefore, that part of the decision of the Court of Appeals which declares in effect that notwithstanding exhibit 2 and the
issuance of original certificate of title No. 51691 in the name of Ernesto M. Guevara, one half of the land described in said
certificate of title belongs to the estate of Victorino L. Guevara and the other half to Ernesto M. Guevara in consideration of the
latter's assumption of the obligation to pay all the debts of the deceased, is hereby affirmed; but the judgment of said court
insofar as it awards any relief to the respondent Rosario Guevara in this action is hereby reversed and set aside, and the parties
herein are hereby ordered to present the document exhibit A to the proper court for probate in accordance with law, without
prejudice to such action as the provincial fiscal of Pangasinan may take against the responsible party or parties under section 4
of Rule 76. After the said document is approved and allowed by the court as the last will and testament of the deceased
Victorino L. Guevara, the heirs and legatees therein named may take such action, judicial or extrajudicial, as may be necessary
to partition the estate of the testator, taking into consideration the pronouncements made in part II of this opinion. No finding
as to costs in any of the three instances.

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G.R. No. 129505 January 31, 2000
OCTAVIO S. MALOLES II, petitioner,
vs.
PACITA DE LOS REYES PHILLIPS, respondent.
-----------------------------
G.R. No. 133359 January 31, 2000
OCTAVIO S. MALOLES II, petitioner,
vs.
COURT OF APPEALS, HON. FERNANDO V. GOROSPE, JR., in his Official Capacity as Presiding Judge of RTC-Makati, Branch 61,
and PACITA PHILLIPS as the alleged executrix of the alleged will of the late Dr. Arturo de Santos, respondents.
MENDOZA, J.:
These are petitions for review on certiorari of the decisions of the Thirteenth and the Special Eighth Divisions of the Court of
Appeals which ruled that petitioner has no right to intervene in the settlement of the estate of Dr. Arturo de Santos. The cases
were consolidated considering that they involve the same parties and some of the issues raised are the same.
The facts which gave rise to these two petitions are as follows:
On July 20, 1995, Dr. Arturo de Santos, Filipino and a resident of Makati City, filed a petition for probate of his will1 in the
Regional Trial Court, Branch 61, Makati, docketed as Sp. Proc. No. M-4223. In his petition, Dr. De Santos alleged that he had no
compulsory heirs; that he had named in his will as sole legatee and devisee the Arturo de Santos Foundation, Inc.; that he
disposed by his will his properties with an approximate value of not less than P2,000,000.00; and that copies of said will were in
the custody of the named executrix, private respondent Pacita de los Reyes Phillips. A copy of the will2 was annexed to the
petition for probate.
On February 16, 1996, Judge Fernando V. Gorospe, Jr. of RTC-Makati, Branch 61 issued an order granting the petition and
allowing the will. The order reads:
On 03 August 1995, the Court issued an Order setting the hearing of the petition on 12 September 1995, at 8:30 o'clock in the
morning, copies of which were served to Arturo de Santos Foundation, Inc. and Ms. Pacita de los Reyes Phillips (Officer's
Return, dated 04 September 1995 attached to the records). When the case was called for hearing on the date set, no oppositor
appeared nor any written opposition was ever filed and on motion of petitioner, he was allowed to adduce his evidence in
support of the petition.
Petitioner personally appeared before this Court and was placed on the witness stand and was directly examined by the Court
through "free wheeling" questions and answers to give this Court a basis to determine the state of mind of the petitioner when
he executed the subject will. After the examination, the Court is convinced that petitioner is of sound and disposing mind and
not acting on duress, menace and undue influence or fraud, and that petitioner signed his Last Will and Testament on his own
free and voluntary will and that he was neither forced nor influenced by any other person in signing it.
Furthermore, it appears from the petition and the evidence adduced that petitioner in his lifetime, executed his Last Will and
Testament (Exhs. "A", "A-1", "A-2", "A-4", "A-5") at his residence situated at 9 Bauhinia corner Intsia Streets, Forbes Park,
Makati City; said Last Will and Testament was signed in the presence of his three (3) witnesses, namely, to wit: Dr. Elpidio
Valencia (Exhs. "A-6", "A-7", "A-8", "A-16", "A-16-A"), Atty. Edward J. Berenguer (Exhs. "A-3", "A-3-A", "A-9", "A-10", & "A-11"),
and Atty. Victoria C. delos Reyes (Exhs. "A-12", "A-13", "A-14", "A-17", & "A-18"), who in turn, in the presence of the testator
and in the presence of each and all of the witnesses signed the said Last Will and Testament and duly notarized before Notary
Public Anna Melissa L. Rosario (Exh. "A-15"); on the actual execution of the Last Will and Testament, pictures were taken (Exhs.
"B" to "B-3").
Petitioner has no compulsory heirs and Arturo de Santos Foundation, Inc., with address at No. 9 Bauhinia corner Intsia Streets,
Forbes Park, Makati City has been named as sole legatee and devisee of petitioner's properties, real and personal,
approximately valued at not less than P2 million, Ms. Pacita de los Reyes Phillips was designated as executor and to serve as
such without a bond.1âwphi1.nêt
From the foregoing facts, the Court finds that the petitioner has substantially established the material allegations contained in
his petition. The Last Will and Testament having been executed and attested as required by law; that testator at the time of the
execution of the will was of sane mind and/or not mentally incapable to make a Will; nor was it executed under duress or under
the influence of fear or threats; that it was in writing and executed in the language known and understood by the testator duly
subscribed thereof and attested and subscribed by three (3) credible witnesses in the presence of the testator and of another;

205
that the testator and all the attesting witnesses signed the Last Will and Testament freely and voluntarily and that the testator
has intended that the instrument should be his Will at the time of affixing his signature thereto.
WHEREFORE, as prayed for by the petitioner (testator himself) the petition for the allowance of the Last Will and Testament of
Arturo de Santos is hereby APPROVED and ALLOWED.
Shortly after the probate of his will, Dr. De Santos died on February 26, 1996.
On April 3, 1996, petitioner Octavio S. Maloles II filed a motion for intervention claiming that, as the only child of Alicia de
Santos (testator's sister) and Octavio L. Maloles, Sr., he was the sole full-blooded nephew and nearest of kin of Dr. De Santos.
He likewise alleged that he was a creditor of the testator. Petitioner thus prayed for the reconsideration of the order allowing
the will and the issuance of letters of administration in his name.
On the other hand, private respondent Pacita de los Reyes Phillips, the designated executrix of the will, filed a motion for the
issuance of letters testamentary with Branch 61. Later, however, private respondent moved to withdraw her motion. This was
granted, while petitioner was required to file a memorandum of authorities in support of his claim that said court (Branch 61)
still had jurisdiction to allow his intervention.3
Petitioner filed his memorandum of authorities on May 13, 1996. On the other hand, private respondent, who earlier withdrew
her motion for the issuance of letters testamentary in Branch 61, refiled a petition for the same purpose with the Regional Trial
Court, Makati, which was docketed as Sp. Proc. No. M-4343 and assigned to Branch 65.
Upon private respondent's motion, Judge Salvador Abad Santos of Branch 65 issued an order, dated June 28, 1996, appointing
her as special administrator of Dr. De Santos's estate.
On July 29, 1996, petitioner sought to intervene in Sp. Proc. No. M-4343 and to set aside the appointment of private
respondent as special administrator. He reiterated that he was the sole and full blooded nephew and nearest of kin of the
testator; that he came to know of the existence of Sp. Proc. No. M-4343 only by accident; that the probate proceedings in Sp.
Proc. No. M-4223 before Branch 61 of the same court was still pending; that private respondent misdeclared the true worth of
the testator's estate; that private respondent was not fit to be the special administrator of the estate; and that petitioner
should be given letters of administration for the estate of Dr. De Santos.
On August 28, 1996, Judge Abad Santos ordered the transfer of Sp. Proc. No. M-4343 to Branch 61, on the ground that "[it] is
related to the case before Judge Gorospe of RTC Branch 61 . . ."
It appears, however, that in Sp. Proc. No. M-4223, Judge Gorospe had denied on August 26, 1996 petitioner's motion for
intervention. Petitioner brought this matter to the Court of Appeals which, in a decision4 promulgated on February 13, 1998,
upheld the denial of petitioner's motion for intervention.
Meanwhile, Judge Gorospe issued an order, dated September 4, 1996, returning the records of Sp. Proc. No. M-4343 to Branch
65 on the ground that there was a pending case involving the Estate of Decedent Arturo de Santos pending before said court.
The order reads:
Acting on the ORDER dated 28 August 1996 of Branch 65, this Court, transferring this case to this Branch 61 on the ground that
this case is related with a case before this Court, let this case be returned to Branch 65 with the information that there is no
related case involving the ESTATE OF DECEDENT ARTURO DE SANTOS pending before this Branch.
There is, however, a case filed by ARTURO DE SANTOS, as petitioner under Rule 76 of the Rules of Court for the Allowance of his
will during his lifetime docketed as SP. PROC. NO. M-4223 which was already decided on 16 February 1996 and has become
final.
It is noted on records of Case No. M-4223 that after it became final, herein Petitioner Pacita de los Reyes Phillips filed a
MOTION FOR THE ISSUANCE OF LETTERS TESTAMENTARY, which was subsequently withdrawn after this Court, during the
hearing, already ruled that the motion could not be admitted as the subject matter involves a separate case under Rule 78 of
the Rules of Court, and movant withdrew her motion and filed this case (No. 4343).
Octavio de Santos Maloles [II] filed a MOTION FOR INTERVENTION before Case No. M-4223 and this motion was already DENIED
in the order (Branch 61) of 26 August 1996 likewise for the same grounds that the matter is for a separate case to be filed under
Rule 78 of the Rules of Court and cannot be included in this case filed under Rule 76 of the Rules of Court.
It is further noted that it is a matter of policy that consolidation of cases must be approved by the Presiding Judges of the
affected Branches.
Initially, in his decision dated September 23, 1996,5 Judge Abad Santos appeared firm in his position that " . . . it would be
improper for (Branch 65) to hear and resolve the petition (Sp. Proc. No. M-4343)," considering that the probate proceedings
were commenced with Branch 61. He thus ordered the transfer of the records back to the latter branch. However, he later

206
recalled his decision and took cognizance of the case "to expedite the proceedings." Thus, in his Order, dated October 21, 1996,
he stated:
Considering the refusal of the Hon. Fernando V. Gorospe, Jr. of Branch 61 to continue hearing this case notwithstanding the fact
that said branch began the probate proceedings of the estate of the deceased and must therefore continue to exercise its
jurisdiction to the exclusion of all others, until the entire estate of the testator had been partitioned and distributed as per
Order dated 23 September 1996, this branch (Regional Trial Court Branch 65) shall take cognizance of the petition if only to
expedite the proceedings, and under the concept that the Regional Trial Court of Makati City is but one court.
Furnish a copy of this order to the Office of the Chief justice and the Office of the Court Administrator, of the Supreme Court;
the Hon. Fernando V. Gorospe, Jr.; Pacita De Los Reyes Phillips, Petitioner; and Octavio de Santos Maloles, Intervenor.
On November 4, 1996, Judge Abad Santos granted petitioner's motion for intervention. Private respondent moved for a
reconsideration but her motion was denied by the trial court. She then filed a petition for certiorari in the Court of Appeals
which, on February 26, 1997, rendered a decision6 setting aside the trial court's order on the ground that petitioner had not
shown any right or interest to intervene in Sp. Proc. No. M-4343.
Hence, these petitions which raise the following issues:
1. Whether or not the Honorable Regional Trial Court — Makati, Branch 61 has lost jurisdiction to proceed with the probate
proceedings upon its issuance of an order allowing the will of Dr. Arturo de Santos.
2. Whether or not the Honorable (Regional Trial Court — Makati, Branch 65) acquired jurisdiction over the petition for issuance
of letters testamentary filed by (private) respondent.
3. Whether or not the petitioner, being a creditor of the late Dr. Arturo de Santos, has a right to intervene and oppose the
petition for issuance of letters testamentary filed by the respondent.
4. Whether or not (private) respondent is guilty of forum shopping in filing her petition for issuance of letters testamentary with
the Regional Trial Court — Makati, Branch 65 knowing fully well that the probate proceedings involving the same restate estate
of the decedent is still pending with the Regional Trial Court — Makati, Branch 61.
First. Petitioner contends that the probate proceedings in Branch 61 of RTC-Makati did not terminate upon the issuance of the
order allowing the will of Dr. De Santos. Citing the cases of Santiesteban v. Santiesteban7 and Tagle v. Manalo,8 he argues that
the proceedings must continue until the estate is fully distributed to the lawful heirs, devisees, and legatees of the testator,
pursuant to Rule 73, §1 of the Rules of Court. Consequently, petitioner contends that Branch 65 could not lawfully act upon
private respondent's petition for issuance of letters testamentary.
The contention has no merit.
In cases for the probate of wills, it is well-settled that the authority of the court is limited to ascertaining the extrinsic validity of
the will, i.e., whether the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed
by law.9
Ordinarily, probate proceedings are instituted only after the death of the testator, so much so that, after approving and
allowing the will, the court proceeds to issue letters testamentary and settle the estate of the testator. The cases cited by
petitioner are of such nature. In fact, in most jurisdictions, courts cannot entertain a petition for probate of the will of a living
testator under the principle of ambulatory nature of wills.10
However, Art. 838 of the Civil Code authorizes the filing of a petition for probate of the will filed by the testator himself. It
provides:
CIVIL CODE, ART. 838. No will shall pass either real or personal property unless it is proved and allowed in accordance with the
Rules of Court.
The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. In such case, the
pertinent provisions of the Rules of Court for the allowance of wills after the testator's death shall govern.
The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of
the testator.
Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be
conclusive as to its due execution.
Rule 76, §1 likewise provides:

207
Sec. 1. Who may petition for the allowance of will. — Any executor, devisee, or legatee named in a will, or any other person
interested in the estate, may, at any time after the death of the testator, petition the court having jurisdiction to have the will
allowed, whether the same be in his possession or not, or is lost or destroyed.
The testator himself may, during his lifetime, petition in the court for the allowance of his will.
The rationale for allowing the probate of wills during the lifetime of testator has been explained by the Code Commission thus:
Most of the cases that reach the courts involve either the testamentary capacity of the testator or the formalities adopted in
the execution of wills. There are relatively few cases concerning the intrinsic validity of testamentary dispositions. It is far easier
for the courts to determine the mental condition of a testator during his lifetime than after his death. Fraud, intimidation and
undue influence are minimized. Furthermore, if a will does not comply with the requirements prescribed by law, the same may
be corrected at once. The probate during the testator's life, therefore, will lessen the number of contest upon wills. Once a will
is probated during the lifetime of the testator, the only questions that may remain for the courts to decide after the testator's
death will refer to the intrinsic validity of the testamentary dispositions. It is possible, of course, that even when the testator
himself asks for the allowance of the will, he may be acting under duress or undue influence, but these are rare cases.
After a will has been probated during the lifetime of the testator, it does not necessarily mean that he cannot alter or revoke
the same before his death. Should he make a new will, it would also be allowable on his petition, and if he should die before he
has had a chance to present such petition, the ordinary probate proceeding after the testator's death would be in order.11
Thus, after the allowance of the will of Dr. De Santos on February 16, 1996, there was nothing else for Branch 61 to do except
to issue a certificate of allowance of the will pursuant to Rule 73, §12 of the Rules of Court. There is, therefore, no basis for the
ruling of Judge Abad Santos of Branch 65 of RTC-Makati that —
Branch 61 of the Regional Trial Court of Makati having begun the probate proceedings of the estate of the deceased, it
continues and shall continue to exercise said jurisdiction to the exclusion of all others. It should be noted that probate
proceedings do not cease upon the allowance or disallowance of a will but continues up to such time that the entire estate of
the testator had been partitioned and distributed.
The fact that the will was allowed during the lifetime of the testator meant merely that the partition and distribution of the
estate was to be suspended until the latter's death. In other words, the petitioner, instead of filing a new petition for the
issuance of letters testamentary, should have simply filed a manifestation for the same purpose in the probate court.12
Petitioner, who defends the order of Branch 65 allowing him to intervene, cites Rule 73, §1 which states:
Where estate of deceased persons settled. — If the decedent is an inhabitant of the Philippines at the time of his death,
whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of
First Instance in the province in which he resides at the time of his death, and if he is an inhabitant of a foreign country, the
Court of First Instance of any province in which he had estate. The court first taking cognizance of the settlement of the estate
of a decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, so far as it
depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or
proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record.
The above rule, however, actually provides for the venue of actions for the settlement of the estate of deceased persons. In
Garcia Fule v. Court of Appeals, it was held:13
The aforequoted Section 1, Rule 73 (formerly Rule 75, Section 1), specifically the clause "so far as it depends on the place of
residence of the decedent, or of the location of the state," is in reality a matter of venue, as the caption of the Rule indicates:
"Settlement of Estate of Deceased Persons. Venue and Processes." It could not have been intended to define the jurisdiction
over the subject matter, because such legal provision is contained in a law of procedure dealing merely with procedural
matters. Procedure is one thing, jurisdiction over the subject matter is another. The power or authority of the court over the
subject matter "existed was fixed before procedure in a given cause began." That power or authority is not altered or changed
by procedure, which simply directs the manner in which the power or authority shall be fully and justly exercised. There are
cases though that if the power is not exercised conformably with the provisions of the procedural law, purely, the court
attempting to exercise it loses the power to exercise it legally. However, this does not amount to a loss of jurisdiction over the
subject matter. Rather, it means that the court may thereby lose jurisdiction over the person or that the judgment may thereby
be rendered defective for lack of something essential to sustain it. The appearance of this provision in the procedural law at
once raises a strong presumption that it has nothing to do with the jurisdiction of the court over the subject matter. In plain
words, it is just a matter of method, of convenience to the parties.
Indeed, the jurisdiction over probate proceedings and settlement of estates with approximate value of over P100,000.00
(outside Metro Manila) or P200,000.00 (in Metro Manila) belongs to the regional trial courts under B.P. Blg. 129, as amended.

208
The different branches comprising each court in one judicial region do not possess jurisdictions independent of and
incompatible with each other.14
It is noteworthy that, although Rule 73, §1 applies insofar as the venue of the petition for probate of the will of Dr. De Santos is
concerned, it does not bar other branches of the same court from taking cognizance of the settlement of the estate of the
testator after his death. As held in the leading case of Bacalso v. Ramolote:15
The various branches of the Court of First Instance of Cebu under the Fourteenth Judicial District, are a coordinate and co-equal
courts, and the totality of which is only one Court of First Instance. The jurisdiction is vested in the court, not in the judges. And
when a case is filed in one branch, jurisdiction over the case does not attach to the branch or judge alone, to the exclusion of
the other branches. Trial may be held or proceedings continue by and before another branch or judge. It is for this reason that
Section 57 of the Judiciary Act expressly grants to the Secretary of Justice, the administrative right or power to apportion the
cases among the different branches, both for the convenience of the parties and for the coordination of the work by the
different branches of the same court. The apportionment and distribution of cases does not involve a grant or limitation of
jurisdiction, the jurisdiction attaches and continues to be vested in the Court of First Instance of the province, and the trials may
be held by any branch or judge of the court.
Necessarily, therefore, Branch 65 of the RTC of Makati City has jurisdiction over Sp. Proc. No. M-4343.
Second. Petitioner claims the right to intervene in and oppose the petition for issuance of letters testamentary filed by private
respondent. He argues that, as the nearest next of kin and creditor of the testator, his interest in the matter is material and
direct. In ruling that petitioner has no right to intervene in the proceedings before Branch 65 of RTC-Makati City, the Court of
Appeals held:
The private respondent herein is not an heir or legatee under the will of the decedent Arturo de Santos. Neither is he a
compulsory heir of the latter. As the only and nearest collateral relative of the decedent, he can inherit from the latter only in
case of intestacy. Since the decedent has left a will which has already been probated and disposes of all his properties the
private respondent can inherit only if the said will is annulled. His interest in the decedent's estate is, therefore, not direct or
immediate.
His claim to being a creditor of the estate is a belated one, having been raised for the first time only in his reply to the
opposition to his motion to intervene, and, as far as the records show, not supported by evidence.
. . . . [T]he opposition must come from one with a direct interest in the estate or the will, and the private respondent has none.
Moreover, the ground cited in the private respondent's opposition, that the petitioner has deliberately misdeclared the truth
worth and value of the estate, is not relevant to the question of her competency to act as executor. Section 2, Rule 76 of the
Rules of Court requires only an allegation of the probable value and character of the property of the estate. The true value can
be determined later on in the course of the settlement of the estate.16
Rule 79, §1 provides:
Opposition to issuance of letters testamentary. Simultaneous petition for administration. — Any person interested in a will may
state in writing the grounds why letters testamentary should not issue to the persons named therein as executors, or any of
them, and the court, after hearing upon notice, shall pass upon the sufficiency of such grounds. A petition may, at the same
time, be filed for letters of administration with the will annexed.
Under this provision, it has been held that an "interested person" is one who would be benefited by the estate, such as an heir,
or one who has a claim against the estate, such as a creditor, and whose interest is material and direct, not merely incidental or
contingent.17
Even if petitioner is the nearest next of kin of Dr. De Santos, he cannot be considered an "heir" of the testator. It is a
fundamental rule of testamentary succession that one who has no compulsory or forced heirs may dispose of his entire estate
by will. Thus, Art. 842 of the Civil Code provides:
One who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person having capacity to
succeed.
One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with
regard to the legitimate of said heirs.
Compulsory heirs are limited to the testator's —
(1) Legitimate children and descendants, with respect to their legitimate parents and ascendants;
(2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants;

209
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by legal fiction;
(5) Other illegitimate children referred to in Article 287 of the Civil Code.18
Petitioner, as nephew of the testator, is not a compulsory heir who may have been preterited in the testator's will.
Nor does he have any right to intervene in the settlement proceedings based on his allegation that he is a creditor of the
deceased. Since the testator instituted or named an executor in his will, it is incumbent upon the Court to respect the desires of
the testator. As we stated in Ozaeta v. Pecson:19
The choice of his executor is a precious prerogative of a testator, a necessary concomitant of his right to dispose of his property
in the manner he wishes. It is natural that the testator should desire to appoint one of his confidence, one who can be trusted
to carry out his wishes in the disposal of his estate. The curtailment of this right may be considered a curtailment of the right to
dispose.
Only if the appointed executor is incompetent, refuses the trust, or fails to give bond may the court appoint other persons to
administer the estate.20 None of these circumstances is present in this case.
Third. Petitioner contends that private respondent is guilty of forum shopping when she filed the petition for issuance of letters
testamentary (Sp. Proc. No. M-4343) while the probate proceedings (Sp. Proc. No. M-4223) were still pending. According to
petitioner, there is identity of parties, rights asserted, and reliefs prayed for in the two actions which are founded on the same
facts, and a judgment in either will result in res judicata in the other.
This contention has no merit. As stated earlier, the petition for probate was filed by Dr. De Santos, the testator, solely for the
purpose of authenticating his will. Upon the allowance of his will, the proceedings were terminated.1âwphi1.nêt
On the other hand, the petition for issuance of letters testamentary was filed by private respondent, as executor of the estate
of Dr. De Santos, for the purpose of securing authority from the Court to administer the estate and put into effect the will of
the testator. The estate settlement proceedings commenced by the filing of the petition terminates upon the distribution and
delivery of the legacies and devises to the persons named in the will. Clearly, there is no identity between the two petitions, nor
was the latter filed during the pendency of the former. There was, consequently, no forum shopping.
WHEREFORE, the petition is DENIED and the decisions of the Court of Appeals are hereby AFFIRMED.
SO ORDERED.

210
G.R. No. 106720 September 15, 1994
SPOUSES ROBERTO AND THELMA AJERO, petitioners,
vs.
THE COURT OF APPEALS AND CLEMENTE SAND, respondents.
Miguel D. Larida for petitioners.
Montilla Law Office for private respondent.

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

211
the character of the testamentary act . . . The will itself shows that the testatrix even had detailed knowledge of the nature of
her estate. She even identified the lot number and square meters of the lots she had conveyed by will. The objects of her
bounty were likewise identified explicitly. And considering that she had even written a nursing book which contained the law
and jurisprudence on will and succession, there is more than sufficient showing that she knows the character of the
testamentary act.
In this wise, the question of identity of the will, its due execution and the testamentary capacity of the testatrix has to be
resolved in favor of the allowance of probate of the will submitted herein.
Likewise, no evidence was presented to show sufficient reason for the disallowance of herein holographic will. While it was
alleged that the said will was procured by undue and improper pressure and influence on the part of the beneficiary or of some
other person, the evidence adduced have not shown any instance where improper pressure or influence was exerted on the
testatrix. (Private respondent) Clemente Sand has testified that the testatrix was still alert at the time of the execution of the
will, i.e., at or around the time of her birth anniversary celebration in 1981. It was also established that she is a very intelligent
person and has a mind of her own. Her independence of character and to some extent, her sense of superiority, which has been
testified to in Court, all show the unlikelihood of her being unduly influenced or improperly pressured to make the aforesaid
will. It must be noted that the undue influence or improper pressure in question herein only refer to the making of a will and
not as to the specific testamentary provisions therein which is the proper subject of another proceeding. Hence, under the
circumstances, this Court cannot find convincing reason for the disallowance of the will herein.
Considering then that it is a well-established doctrine in the law on succession that in case of doubt, testate succession should
be preferred over intestate succession, and the fact that no convincing grounds were presented and proven for the
disallowance of the holographic will of the late Annie Sand, the aforesaid will submitted herein must be admitted to probate. 3
(Citations omitted.)
On appeal, said Decision was reversed, and the petition for probate of decedent's will was dismissed. The Court of Appeals
found that, "the holographic will fails to meet the requirements for its validity." 4 It held that the decedent did not comply with
Articles 813 and 814 of the New Civil Code, which read, as follows:
Art. 813: When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition
has a signature and date, such date validates the dispositions preceding it, whatever be the time of prior dispositions.
Art. 814: In case of insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same
by his full signature.
It alluded to certain dispositions in the will which were either unsigned and undated, or signed but not dated. It also found that
the erasures, alterations and cancellations made thereon had not been authenticated by decedent.
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that will shall be disallowed in any of the following cases:
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution;
(c) If it was executed under duress, or the influence of fear, or threats;
(d) If it was procured by undue and improper pressure and influence, on the part of the beneficiary, or of some other person for
his benefit;
(e) If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at
the time of fixing his signature thereto.
In the same vein, Article 839 of the New Civil Code reads:
Art. 839: The will shall be disallowed in any of the following cases;
(1) If the formalities required by law have not been complied with;
(2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution;
(3) If it was executed through force or under duress, or the influence of fear, or threats;
(4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person;
(5) If the signature of the testator was procured by fraud;

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(6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his
signature thereto.
These lists are exclusive; no other grounds can serve to disallow a will. 5 Thus, in a petition to admit a holographic will to
probate, the only issues to be resolved are: (1) whether the instrument submitted is, indeed, the decedent's last will and
testament; (2) whether said will was executed in accordance with the formalities prescribed by law; (3) whether the decedent
had the necessary testamentary capacity at the time the will was executed; and, (4) whether the execution of the will and its
signing were the voluntary acts of the decedent. 6
In the case at bench, respondent court held that the holographic will of Anne Sand was not executed in accordance with the
formalities prescribed by law. It held that Articles 813 and 814 of the New Civil Code, ante, were not complied with, hence, it
disallowed the probate of said will. This is erroneous.
We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that:
The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guaranty their truth and authenticity. Therefore, the laws on this subject should be
interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact
that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation
already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely
unnecessary, useless and frustrative of the testator's last will, must be disregarded.
For purposes of probating non-holographic wills, these formal solemnities include the subscription, attestation, and
acknowledgment requirements under Articles 805 and 806 of the New Civil Code.
In the case of holographic wills, on the other hand, what assures authenticity is the requirement that they be totally
autographic or handwritten by the testator himself, 7 as provided under Article 810 of the New Civil Code, thus:
A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself.
It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. (Emphasis supplied.)
Failure to strictly observe other formalities will not result in the disallowance of a holographic will that is unquestionably
handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its requirement affects the validity of the dispositions contained in the
holographic will, but not its probate. If the testator fails to sign and date some of the dispositions, the result is that these
dispositions cannot be effectuated. Such failure, however, does not render the whole testament void.
Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance with the provisions of Article 814.
In the case of Kalaw vs. Relova 132 SCRA 237 242 (1984), this Court held:
Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will have not
been noted under his signature, . . . the Will is not thereby invalidated as a whole, but at most only as respects the particular
words erased, corrected or interlined. Manresa gave an identical commentary when he said "la omission de la salvedad no
anula el testamento, segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de 1985." 8 (Citations omitted.)
Thus, unless the unauthenticated alterations, cancellations or insertions were made on the date of the holographic will or on
testator's signature, 9 their presence does not invalidate the will itself. 10 The lack of authentication will only result in
disallowance of such changes.
It is also proper to note that the requirements of authentication of changes and signing and dating of dispositions appear in
provisions (Articles 813 and 814) separate from that which provides for the necessary conditions for the validity of the
holographic will (Article 810). The distinction can be traced to Articles 678 and 688 of the Spanish Civil Code, from which the
present provisions covering holographic wills are taken. They read as follows:
Art. 678: A will is called holographic when the testator writes it himself in the form and with the requisites required in Article
688.
Art. 688: Holographic wills may be executed only by persons of full age.
In order that the will be valid it must be drawn on stamped paper corresponding to the year of its execution, written in its
entirety by the testator and signed by him, and must contain a statement of the year, month and day of its execution.
If it should contain any erased, corrected, or interlined words, the testator must identify them over his signature.
Foreigners may execute holographic wills in their own language.

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This separation and distinction adds support to the interpretation that only the requirements of Article 810 of the New Civil
Code — and not those found in Articles 813 and 814 of the same Code — are essential to the probate of a holographic will.
The Court of Appeals further held that decedent Annie Sand could not validly dispose of the house and lot located in
Cabadbaran, Agusan del Norte, in its entirety. This is correct and must be affirmed.
As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be
probated. However, in exceptional instances, courts are not powerless to do what the situation constrains them to do, and pass
upon certain provisions of the will. 11 In the case at bench, decedent herself indubitably stated in her holographic will that the
Cabadbaran property is in the name of her late father, John H. Sand (which led oppositor Dr. Jose Ajero to question her
conveyance of the same in its entirety). Thus, as correctly held by respondent court, she cannot validly dispose of the whole
property, which she shares with her father's other heirs.
IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No. 22840, dated
March 30, 1992, is REVERSED and SET ASIDE, except with respect to the invalidity of the disposition of the entire house and lot
in Cabadbaran, Agusan del Norte. The Decision of the Regional Trial Court of Quezon City, Branch 94 in Sp. Proc. No. Q-37171,
dated November 19, 1988, admitting to probate the holographic will of decedent Annie Sand, is hereby REINSTATED, with the
above qualification as regards the Cabadbaran property. No costs.
SO ORDERED.

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G.R. No. L-23079 February 27, 1970
RUBEN AUSTRIA, CONSUELO AUSTRIA-BENTA and LAURO AUSTRIA MOZO, petitioners,
vs.
HON. ANDRES REYES, Judge, Court of First Instance of Rizal, PERFECTO CRUZ, BENITA CRUZ-MENEZ ISAGANI CRUZ, ALBERTO
CRUZ and LUZ CRUZ-SALONGA respondents.
Salonga, Ordoñez, Yap, Sicat and Associates for petitioners.
Ruben Austria for himself and co-petitioners.
De los Santos, De los Santos and De los Santos for respondent Perfecto Cruz.
Villareal, Almacen, Navarra and Amores for other respondents.

CASTRO, J.:
On July 7, 1956 Basilia Austria vda. de Cruz filed with the Court of First Instance of Rizal (Special Proceedings 2457) a petition for
probate, ante mortem, of her last will and testament. The probate was opposed by the present petitioners Ruben Austria,
Consuelo Austria-Benta and Lauro Austria Mozo, and still others who, like the petitioner, are nephews and nieces of Basilia. This
opposition was, however, dismissed and the probate of the will allowed after due hearing.
The bulk of the estate of Basilia, admittedly, was destined under the will to pass on to the respondents Perfecto Cruz, Benita
Cruz-Meñez, Isagani Cruz, Alberto Cruz, and Luz Cruz-Salonga, all of whom had been assumed and declared by Basilia as her
own legally adopted children.
On April 23, 1959, more than two years after her will was allowed to probate, Basilia died. The respondent Perfecto Cruz was
appointed executor without bond by the same court in accordance with the provisions of the decedent's will, notwithstanding
the blocking attempt pursued by the petitioner Ruben Austria.
Finally, on November 5, 1959, the present petitioners filed in the same proceedings a petition in intervention for partition
alleging in substance that they are the nearest of kin of Basilia, and that the five respondents Perfecto Cruz, et al., had not in
fact been adopted by the decedent in accordance with law, in effect rendering these respondents mere strangers to the
decedent and without any right to succeed as heirs.
Notwithstanding opposition by the respondent Perfecto Cruz, as executor of the estate, the court a quo allowed the petitioners'
intervention by its order of December 22, 1959, couched in broad terms, as follows: "The Petition in Intervention for Partition
filed by the above-named oppositors [Ruben Austria, et al.,] dated November 5, 1959 is hereby granted."
In the meantime, the contending sides debated the matter of authenticity or lack of it of the several adoption papers produced
and presented by the respondents. On motion of the petitioners Ruben Austria, et al., these documents were referred to the
National Bureau of Investigation for examination and advice. N.B.I. report seems to bear out the genuineness of the
documents, but the petitioners, evidently dissatisfied with the results, managed to obtain a preliminary opinion from a
Constabulary questioned-document examiner whose views undermine the authenticity of the said documents. The petitioners
Ruben Austria, et al., thus moved the lower court to refer the adoption papers to the Philippine Constabulary for further study.
The petitioners likewise located former personnel of the court which appeared to have granted the questioned adoption, and
obtained written depositions from two of them denying any knowledge of the pertinent adoption proceedings.
On February 6, 1963, more than three years after they were allowed to intervene, the petitioners Ruben Austria, let al., moved
the lower court to set for hearing the matter of the genuineness of the adoption of the respondents Perfecto Cruz, et al., by the
late Basilia. Before the date set by the court for hearing arrived, however, the respondent Benita Cruz-Meñez who entered an
appearance separately from that of her brother Perfecto Cruz, filed on February 28, 1963 a motion asking the lower court, by
way of alternative relief, to confine the petitioners' intervention, should it be permitted, to properties not disposed of in the
will of the decedent.
On March 4, 1963, the lower court heard the respondent Benita's motion. Both sides subsequently submitted their respective
memoranda, and finally, the lower court issued an order on June 4, 1963, delimiting the petitioners' intervention to the
properties of the deceased which were not disposed of in the will.
The petitioners moved the lower court to reconsider this latest order, eliciting thereby an opposition, from the respondents. On
October 25, 1963 the same court denied the petitioners' motion for reconsideration.
A second motion for reconsideration which set off a long exchange of memoranda from both sides, was summarily denied on
April 21, 1964.

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Hence this petition for certiorari, praying this Court to annul the orders of June 4 and October 25, 1963 and the order of April
21, 1964, all restricting petitioners' intervention to properties that were not included in the decedent's testamentary
dispositions.
The uncontested premises are clear. Two interests are locked in dispute over the bulk of the estate of the deceased. Arrayed on
one side are the petitioners Ruben Austria, Consuelo Austria-Benta and Lauro Austria Mozo, three of a number of nephews and
nieces who are concededly the nearest surviving blood relatives of the decedent. On the other side are the respondents
brothers and sisters, Perfecto Cruz, Benita Cruz-Meñez, Isagani Cruz, Alberto Cruz and Luz Cruz-Salonga, all of whom heirs in the
will of the deceased Basilia, and all of whom claim kinship with the decedent by virtue of legal adoption. At the heart of the
controversy is Basilia's last will — immaculate in its extrinsic validity since it bears the imprimatur of duly conducted probate
proceedings.
The complaint in intervention filed in the lower court assails the legality of the tie which the respondent Perfecto Cruz and his
brothers and sisters claim to have with the decedent. The lower court had, however, assumed, by its orders in question, that
the validity or invalidity of the adoption is not material nor decisive on the efficacy of the institution of heirs; for, even if the
adoption in question were spurious, the respondents Perfecto Cruz, et al., will nevertheless succeed not as compulsory heirs
but as testamentary heirs instituted in Basilia's will. This ruling apparently finds support in article, 842 of the Civil Code which
reads:
One who has no compulsory heirs may dispose of by will all his estate or any part of it in favor of any person having capacity to
succeed.
One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with
regard to the legitime of said heirs.
The lower court must have assumed that since the petitioners nephews and niece are not compulsory heirs, they do not
possess that interest which can be prejudiced by a free-wheeling testamentary disposition. The petitioners' interest is confined
to properties, if any, that have not been disposed of in the will, for to that extent intestate succession can take place and the
question of the veracity of the adoption acquires relevance.
The petitioners nephews and niece, upon the other hand, insist that the entire estate should descend to them by intestacy by
reason of the intrinsic nullity of the institution of heirs embodied in the decedent's will. They have thus raised squarely the
issue of whether or not such institution of heirs would retain efficacy in the event there exists proof that the adoption of the
same heirs by the decedent is false.
The petitioners cite, as the controlling rule, article 850 of the Civil Code which reads:
The statement of a false cause for the institution of an heir shall be considered as not written, unless it appears from the will
that the testator would not have made such institution if he had known the falsity of such cause.
Coming closer to the center of the controversy, the petitioners have called the attention of the lower court and this Court to
the following pertinent portions of the will of the deceased which recite:
III
Ang aking mga sapilitang tagapagmana (herederos forzosos) ay ang aking itinuturing na mga anak na tunay (Hijos legalmente
adoptados) na sina Perfecto, Alberto, Luz, Benita at Isagani, na pawang may apelyidong Cruz.
xxx xxx xxx
Kung ako ay bawian ng Dios ng buhay, ay aking ipinamamana ang aking mga ari-ariang maiiwan, sa kaparaanang sumusunod:
A.—Aking ipinamamana sa aking nabanggit na limang anak na sina Perfecto, Alberto, Luz, Benita at Isagani, na pawang may
apelyidong Cruz, na parepareho ang kaparti ng bawa't isa at walang lamangan (en partes iguales), bilang kanilang sapilitang
mana (legiti[ma]), ang kalahati (½) ng aking kaparti sa lahat ng aming ari-ariang gananciales ng aking yumaong asawang Pedro
Cruz na napapaloob sa Actuacion Especial No. 640 ng Hukumang Unang Dulugan ng Rizal at itinutukoy sa No. 1 ng parafo IV ng
testamentong ito, ang kalahati (½) ng mga lagay na lupa at palaisdaan na nasa Obando at Polo, Bulacan, na namana ko sa aking
yumaong ama na si Calixto Austria, at ang kalahati (½) ng ilang lagay na lupa na nasa Tinejeros, Malabon, Rizal, na aking namana
sa yumao kong kapatid na si Fausto Austria.
The tenor of the language used, the petitioners argue, gives rise to the inference that the late Basilia was deceived into
believing that she was legally bound to bequeath one-half of her entire estate to the respondents Perfecto Cruz, et al. as the
latter's legitime. The petitioners further contend that had the deceased known the adoption to be spurious, she would not have
instituted the respondents at all — the basis of the institution being solely her belief that they were compulsory heirs. Proof
therefore of the falsity of the adoption would cause a nullity of the institution of heirs and the opening of the estate wide to

216
intestacy. Did the lower court then abuse its discretion or act in violation of the rights of the parties in barring the petitioners
nephews and niece from registering their claim even to properties adjudicated by the decedent in her will?
Before the institution of heirs may be annulled under article 850 of the Civil Code, the following requisites must concur: First,
the cause for the institution of heirs must be stated in the will; second, the cause must be shown to be false; and third, it must
appear from the face of the will that the testator would not have made such institution if he had known the falsity of the cause.
The petitioners would have us imply, from the use of the terms, "sapilitang tagapagmana" (compulsory heirs) and "sapilitang
mana" (legitime), that the impelling reason or cause for the institution of the respondents was the testatrix's belief that under
the law she could not do otherwise. If this were indeed what prompted the testatrix in instituting the respondents, she did not
make it known in her will. Surely if she was aware that succession to the legitime takes place by operation of law, independent
of her own wishes, she would not have found it convenient to name her supposed compulsory heirs to their legitimes. Her
express adoption of the rules on legitimes should very well indicate her complete agreement with that statutory scheme. But
even this, like the petitioners' own proposition, is highly speculative of what was in the mind of the testatrix when she executed
her will. One fact prevails, however, and it is that the decedent's will does not state in a specific or unequivocal manner the
cause for such institution of heirs. We cannot annul the same on the basis of guesswork or uncertain implications.
And even if we should accept the petitioners' theory that the decedent instituted the respondents Perfecto Cruz, et al. solely
because she believed that the law commanded her to do so, on the false assumption that her adoption of these respondents
was valid, still such institution must stand.
Article 850 of the Civil Code, quoted above, is a positive injunction to ignore whatever false cause the testator may have written
in his will for the institution of heirs. Such institution may be annulled only when one is satisfied, after an examination of the
will, that the testator clearly would not have made the institution if he had known the cause for it to be false. Now, would the
late Basilia have caused the revocation of the institution of heirs if she had known that she was mistaken in treating these heirs
as her legally adopted children? Or would she have instituted them nonetheless?
The decedent's will, which alone should provide the answer, is mute on this point or at best is vague and uncertain. The
phrases, "mga sapilitang tagapagmana" and "sapilitang mana," were borrowed from the language of the law on succession
and were used, respectively, to describe the class of heirs instituted and the abstract object of the inheritance. They offer no
absolute indication that the decedent would have willed her estate other than the way she did if she had known that she was
not bound by law to make allowance for legitimes. Her disposition of the free portion of her estate (libre disposicion) which
largely favored the respondent Perfecto Cruz, the latter's children, and the children of the respondent Benita Cruz, shows a
perceptible inclination on her part to give to the respondents more than what she thought the law enjoined her to give to
them. Compare this with the relatively small devise of land which the decedent had left for her blood relatives, including the
petitioners Consuelo Austria-Benta and Lauro Mozo and the children of the petitioner Ruben Austria. Were we to exclude the
respondents Perfecto Cruz, et al. from the inheritance, then the petitioners and the other nephews and nieces would succeed
to the bulk of the testate by intestacy — a result which would subvert the clear wishes of the decedent.
Whatever doubts one entertains in his mind should be swept away by these explicit injunctions in the Civil Code: "The words of
a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of
the expressions inoperative; and of two modes of interpreting a will, that is to be preferred which will prevent intestacy." 1
Testacy is favored and doubts are resolved on its side, especially where the will evinces an intention on the part of the testator
to dispose of practically his whole estate,2 as was done in this case. Moreover, so compelling is the principle that intestacy
should be avoided and the wishes of the testator allowed to prevail, that we could even vary the language of the will for the
purpose of giving it effect.3 A probate court has found, by final judgment, that the late Basilia Austria Vda. de Cruz was
possessed of testamentary capacity and her last will executed free from falsification, fraud, trickery or undue influence. In this
situation, it becomes our duty to give full expression to her will.4
At all events, the legality of the adoption of the respondents by the testatrix can be assailed only in a separate action brought
for that purpose, and cannot be the subject of a collateral attack.5
To the petitioners' charge that the lower court had no power to reverse its order of December 22, 1959, suffice it to state that,
as borne by the records, the subsequent orders complained of served merely to clarify the first — an act which the court could
legally do. Every court has the inherent power to amend and control its processes and orders so as to make them conformable
to law and justices.6 That the court a quo has limited the extent of the petitioners' intervention is also within its powers as
articulated by the Rules of Court.7
ACCORDINGLY, the present petition is denied, at petitioners cost.

217
G.R. No. 141882 March 11, 2005
J.L.T. AGRO, INC., represented by its Manager, JULIAN L. TEVES, Petitioner,
vs.
ANTONIO BALANSAG and HILARIA CADAYDAY, respondents.
DECISION
TINGA, J.:
Once again, the Court is faced with the perennial conflict of property claims between two sets of heirs, a conflict ironically
made grievous by the fact that the decedent in this case had resorted to great lengths to allocate which properties should go to
which set of heirs.
This is a Rule 45 petition assailing the Decision1 dated 30 September 1999 of the Court of Appeals which reversed the Decision2
dated 7 May 1993 of the Regional Trial Court (RTC), Branch 45, of Bais City, Negros Oriental.
The factual antecedents follow.
Don Julian L. Teves (Don Julian) contracted two marriages, first with Antonia Baena (Antonia), and after her death, with
Milagros Donio Teves (Milagros Donio). Don Julian had two children with Antonia, namely: Josefa Teves Escaño (Josefa) and
Emilio Teves (Emilio). He had also four (4) children with Milagros Donio, namely: Maria Evelyn Donio Teves (Maria Evelyn), Jose
Catalino Donio Teves (Jose Catalino), Milagros Reyes Teves (Milagros Reyes) and Pedro Reyes Teves (Pedro). 3
The present controversy involves a parcel of land covering nine hundred and fifty-four (954) square meters, known as Lot No.
63 of the Bais Cadastre, which was originally registered in the name of the conjugal partnership of Don Julian and Antonia
under Original Certificate of Title (OCT) No. 5203 of the Registry of Deeds of Bais City. When Antonia died, the land was among
the properties involved in an action for partition and damages docketed as Civil Case No. 3443 entitled "Josefa Teves Escaño v.
Julian Teves, Emilio B. Teves, et al."4 Milagros Donio, the second wife of Don Julian, participated as an intervenor. Thereafter,
the parties to the case entered into a Compromise Agreement5 which embodied the partition of all the properties of Don Julian.
On the basis of the compromise agreement and approving the same, the Court of First Instance (CFI) of Negros Oriental, 12 th
Judicial District, rendered a Decision6 dated 31 January 1964. The CFI decision declared a tract of land known as Hacienda
Medalla Milagrosa as property owned in common by Don Julian and his two (2) children of the first marriage. The property was
to remain undivided during the lifetime of Don Julian.7 Josefa and Emilio likewise were given other properties at Bais, including
the electric plant, the "movie property," the commercial areas, and the house where Don Julian was living. The remainder of
the properties was retained by Don Julian, including Lot No. 63.
Paragraph 13 of the Compromise Agreement, at the heart of the present dispute, lays down the effect of the eventual death of
Don Julian vis-à-vis his heirs:
13. That in the event of death of Julian L. Teves, the properties hereinafter adjudicated to Josefa Teves Escaňo and Emilio B.
Teves, (excluding the properties comprised as Hacienda Medalla Milagrosa together with all its accessories and accessions) shall
be understood as including not only their one-half share which they inherited from their mother but also the legitimes and
other successional rights which would correspond to them of the other half belonging to their father, Julian L. Teves. In other
words, the properties now selected and adjudicated to Julian L. Teves (not including his share in the Hacienda Medalla
Milagrosa) shall exclusively be adjudicated to the wife in second marriage of Julian L. Teves and his four minor children,
namely, Milagros Donio Teves, his two acknowledged natural children Milagros Reyes Teves and Pedro Reyes Teves and his two
legitimated children Maria Evelyn Donio Teves and Jose Catalino Donio Teves. (Emphasis supplied)
On 16 November 1972, Don Julian, Emilio and Josefa executed a Deed of Assignment of Assets with Assumption of Liabilities8 in
favor of J.L.T. Agro, Inc. (petitioner). Less than a year later, Don Julian, Josefa and Emilio also executed an instrument entitled
Supplemental to the Deed of Assignment of Assets with the Assumption of Liabilities (Supplemental Deed) 9 dated 31 July 1973.
This instrument which constitutes a supplement to the earlier deed of assignment transferred ownership over Lot No. 63,
among other properties, in favor of petitioner.10 On 14 April 1974, Don Julian died intestate.
On the strength of the Supplemental Deed in its favor, petitioner sought the registration of the subject lot in its name. A court,
so it appeared, issued an order11 cancelling OCT No. 5203 in the name of spouses Don Julian and Antonia on 12 November
1979, and on the same date TCT No. T-375 was issued in the name of petitioner.12 Since then, petitioner has been paying taxes
assessed on the subject lot.13
Meanwhile, Milagros Donio and her children had immediately taken possession over the subject lot after the execution of the
Compromise Agreement. In 1974, they entered into a yearly lease agreement with spouses Antonio Balansag and Hilaria
Cadayday, respondents herein.14 On Lot No. 63, respondents temporarily established their home and constructed a lumber
yard. Subsequently, Milagros Donio and her children executed a Deed of Extrajudicial Partition of Real Estate15 dated 18 March

218
1980. In the deed of partition, Lot No. 63 was allotted to Milagros Donio and her two (2) children, Maria Evelyn and Jose
Catalino. Unaware that the subject lot was already registered in the name of petitioner in 1979, respondents bought Lot No. 63
from Milagros Donio as evidenced by the Deed of Absolute Sale of Real Estate16 dated 9 November 1983.
At the Register of Deeds while trying to register the deed of absolute sale, respondents discovered that the lot was already
titled in the name of petitioner. Thus, they failed to register the deed.17
Respondents, as vendees of Lot No. 63, filed a complaint before the RTC Branch 45 of Bais City, seeking the declaration of
nullity and cancellation of TCT No. T-375 in the name of petitioner and the transfer of the title to Lot No. 63 in their names, plus
damages.18
After hearing, the trial court dismissed the complaint filed by respondents. The dispositive portion of the decision reads:
WHEREFORE, premises considered, by preponderance of evidence, this Court finds judgment in favor of the defendant and
against the plaintiff, and thus hereby orders:
(1) That complaint be dismissed;
(2) That plaintiffs vacate the subject land, particularly identified as Lot No. 63 registered under Transfer Certificate of Title No.
T-375;
(3) That plaintiffs pay costs.
Finding no basis on the counterclaim by defendant, the same is hereby ordered dismissed.19
The trial court ruled that the resolution of the case specifically hinged on the interpretation of paragraph 13 of the Compromise
Agreement.20 It added that the direct adjudication of the properties listed in the Compromise Agreement was only in favor of
Don Julian and his two children by the first marriage, Josefa and Emilio.21 Paragraph 13 served only as an amplification of the
terms of the adjudication in favor of Don Julian and his two children by the first marriage.
According to the trial court, the properties adjudicated in favor of Josefa and Emilio comprised their shares in the estate of their
deceased mother Antonia, as well as their potential share in the estate of Don Julian upon the latter’s death. Thus, upon Don
Julian’s death, Josefa and Emilio could not claim any share in his estate, except their proper share in the Hacienda Medalla
Milagrosa which was adjudicated in favor of Don Julian in the Compromise Agreement. As such, the properties adjudicated in
favor of Don Julian, except Hacienda Medalla Milagrosa, were free from the forced legitimary rights of Josefa and Emilio, and
Don Julian was under no impediment to allocate the subject lot, among his other properties, to Milagros Donio and her four (4)
children.22
The trial court further stressed that with the use of the words "shall be," the adjudication in favor of Milagros Donio and her
four (4) children was not final and operative, as the lot was still subject to future disposition by Don Julian during his lifetime.23
It cited paragraph 1424 of the Compromise Agreement in support of his conclusion.25 With Lot No. 63 being the conjugal
property of Don Julian and Antonia, the trial court also declared that Milagros Donio and her children had no hereditary rights
thereto except as to the conjugal share of Don Julian, which they could claim only upon the death of the latter. 26
The trial court ruled that at the time of Don Julian’s death on 14 April 1974, Lot No. 63 was no longer a part of his estate since
he had earlier assigned it to petitioner on 31 July 1973. Consequently, the lot could not be a proper subject of extrajudicial
partition by Milagros Donio and her children, and not being the owners they could not have sold it. Had respondents exercised
prudence before buying the subject lot by investigating the registration of the same with the Registry of Deeds, they would
have discovered that five (5) years earlier, OCT No. 5203 had already been cancelled and replaced by TCT No. T-375 in the name
of petitioner, the trial court added.27
The Court of Appeals, however, reversed the trial court’s decision. The decretal part of the appellate decision reads:
WHEREFORE, premises considered, the decision appealed from is hereby REVERSED and SET ASIDE and a new one is entered
declaring the Transfer Certificate of Title No. T-375 registered in the name of J.L.T. Agro, Inc. as null and void.
With costs against defendant J.L.T. Agro, Inc. represented by its Manager, Julian L. Teves.
SO ORDERED.28
Per the appellate court, the Compromise Agreement incorporated in CFI decision dated 31 January 1964, particularly paragraph
13 thereof, determined, adjudicated and reserved to Don Julian’s two sets of heirs their future legitimes in his estate except as
regards his (Don Julian’s) share in Hacienda Medalla Milagrosa.29 The two sets of heirs acquired full ownership and possession
of the properties respectively adjudicated to them in the CFI decision and Don Julian himself could no longer dispose of the
same, including Lot No. 63. The disposition in the CFI decision constitutes res judicata.30 Don Julian could have disposed of only
his conjugal share in the Hacienda Medalla Milagrosa.31

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The appellate court likewise emphasized that nobody in his right judgment would preterit his legal heirs by simply executing a
document like the Supplemental Deed which practically covers all properties which Don Julian had reserved in favor of his heirs
from the second marriage. It also found out that the blanks reserved for the Book No. and Page No. at the upper right corner of
TCT No. T-375, "to identify the exact location where the said title was registered or transferred," were not filled up, thereby
indicating that the TCT is "spurious and of dubious origin."32
Aggrieved by the appellate court’s decision, petitioner elevated it to this Court via a petition for review on certiorari, raising
pure questions of law.
Before this Court, petitioner assigns as errors the following rulings of the appellate court, to wit: (a) that future legitime can be
determined, adjudicated and reserved prior to the death of Don Julian; (b) that Don Julian had no right to dispose of or assign
Lot No. 63 to petitioner because he reserved the same for his heirs from the second marriage pursuant to the Compromise
Agreement; (c) that the Supplemental Deed was tantamount to a preterition of his heirs from the second marriage; and (d) that
TCT No. T-375 in the name of petitioner is spurious for not containing entries on the Book No. and Page No. 33
While most of petitioner’s legal arguments have merit, the application of the appropriate provisions of law to the facts borne
out by the evidence on record nonetheless warrants the affirmance of the result reached by the Court of Appeals in favor of
respondents.
Being the key adjudicative provision, paragraph 13 of the Compromise Agreement has to be quoted again:
13. That in the event of death of Julian L. Teves, the properties herein adjudicated to Josefa Teves Escaño and Emilio B. Teves,
(excluding the properties comprised as Hacienda Medalla Milagrosa together with all its accessories and accessions) shall be
understood as including not only their one-half share which they inherited from their mother but also the legitimes and other
successional rights which would correspond to them of the other half belonging to their father, Julian L.Teves. In other words,
the properties now selected and adjudicated to Julian L. Teves (not including his share in the Hacienda Medalla Milagrosa)
shall exclusively be adjudicated to the wife in second marriage of Julian L. Teves and his four minor children, namely,
Milagros Donio Teves, his two acknowledged natural children Milagros Reyes Teves and Pedro Reyes Teves and his two
legitimated children Maria Evelyn Donio Teves and Jose Catalino Donio Teves." (Emphasis supplied)
With the quoted paragraph as basis, the Court of Appeals ruled that the adjudication in favor of the heirs of Don Julian from the
second marriage became automatically operative upon the approval of the Compromise Agreement, thereby vesting on them
the right to validly dispose of Lot No. 63 in favor of respondents.
Petitioner argues that the appellate court erred in holding that future legitime can be determined, adjudicated and reserved
prior to the death of Don Julian. The Court agrees. Our declaration in Blas v. Santos34 is relevant, where we defined future
inheritance as any property or right not in existence or capable of determination at the time of the contract, that a person may
in the future acquire by succession. Article 1347 of the New Civil Code explicitly provides:
ART. 1347. All things which are not outside the commerce of men, including future things, may be the object of a contract. All
rights which are not intransmissible may also be the object of contracts.
No contract may be entered into upon future inheritance except in cases expressly authorized by law.
All services which are not contrary to law, morals, good customs, public order or public policy may likewise be the object of a
contract.
Well-entrenched is the rule that all things, even future ones, which are not outside the commerce of man may be the object of
a contract. The exception is that no contract may be entered into with respect to future inheritance, and the exception to the
exception is the partition inter vivos referred to in Article 1080.35
For the inheritance to be considered "future," the succession must not have been opened at the time of the contract. 36 A
contract may be classified as a contract upon future inheritance, prohibited under the second paragraph of Article 1347, where
the following requisites concur:
(1) That the succession has not yet been opened;
(2) That the object of the contract forms part of the inheritance; and
(3) That the promissor has, with respect to the object, an expectancy of a right which is purely hereditary in nature. 37
The first paragraph of Article 1080, which provides the exception to the exception and therefore aligns with the general rule on
future things, reads:
ART. 1080. Should a person make a partition of his estate by an act inter vivos, or by will, such partition shall be respected,
insofar as it does not prejudice the legitime of the compulsory heirs.

220
....
In interpreting this provision, Justice Edgardo Paras advanced the opinion that if the partition is made by an act inter vivos, no
formalities are prescribed by the Article.38 The partition will of course be effective only after death. It does not necessarily
require the formalities of a will for after all it is not the partition that is the mode of acquiring ownership. Neither will the
formalities of a donation be required since donation will not be the mode of acquiring the ownership here after death; since no
will has been made it follows that the mode will be succession (intestate succession). Besides, the partition here is merely the
physical determination of the part to be given to each heir.39
The historical antecedent of Article 1080 of the New Civil Code is Article 105640 of the old Civil Code. The only change in the
provision is that Article 1080 now permits any person (not a testator, as under the old law) to partition his estate by act inter
vivos. This was intended to abrogate the then prevailing doctrine that for a testator to partition his estate by an act inter vivos,
he must first make a will with all the formalities provided by law.41
Article 1056 of the old Civil Code (now Article 1080) authorizes a testator to partition inter vivos his property, and distribute
them among his heirs, and this partition is neither a donation nor a testament, but an instrument of a special character, sui
generis, which is revocable at any time by the causante during his lifetime, and does not operate as a conveyance of title until
his death. It derives its binding force on the heirs from the respect due to the will of the owner of the property, limited only by
his creditors and the intangibility of the legitime of the forced heirs.42
The partition inter vivos of the properties of Don Julian is undoubtedly valid pursuant to Article 1347. However, considering that
it would become legally operative only upon the death of Don Julian, the right of his heirs from the second marriage to the
properties adjudicated to him under the compromise agreement was but a mere expectancy. It was a bare hope of succession
to the property of their father. Being the prospect of a future acquisition, the interest by its nature was inchoate. It had no
attribute of property, and the interest to which it related was at the time nonexistent and might never exist.43
Evidently, at the time of the execution of the deed of assignment covering Lot No. 63 in favor of petitioner, Don Julian remained
the owner of the property since ownership over the subject lot would only pass to his heirs from the second marriage at the
time of his death. Thus, as the owner of the subject lot, Don Julian retained the absolute right to dispose of it during his
lifetime. His right cannot be challenged by Milagros Donio and her children on the ground that it had already been adjudicated
to them by virtue of the compromise agreement.
Emerging as the crucial question in this case is whether Don Julian had validly transferred ownership of the subject lot during
his lifetime. The lower court ruled that he had done so through the Supplemental Deed. The appellate court disagreed, holding
that the Supplemental Deed is not valid, containing as it does a prohibited preterition of Don Julian’s heirs from the second
marriage. Petitioner contends that the ruling of the Court of Appeals is erroneous. The contention is well-founded.
Article 854 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. Manresa defines preterition as the omission of the heir in
the will, either by not naming him at all or, while mentioning him as father, son, etc., by not instituting him as heir without
disinheriting him expressly, nor assigning to him some part of the properties.44 It is the total omission of a compulsory heir in
the direct line from inheritance.45 It consists in the silence of the testator with regard to a compulsory heir, omitting him in the
testament, either by not mentioning him at all, or by not giving him anything in the hereditary property but without expressly
disinheriting him, even if he is mentioned in the will in the latter case.46 But there is no preterition where the testator allotted
to a descendant a share less than the legitime, since there was no total omission of a forced heir.47
In the case at bar, Don Julian did not execute a will since what he resorted to was a partition inter vivos of his properties, as
evidenced by the court approved Compromise Agreement. Thus, it is premature if not irrelevant to speak of preterition prior to
the death of Don Julian in the absence of a will depriving a legal heir of his legitime. Besides, there are other properties which
the heirs from the second marriage could inherit from Don Julian upon his death. A couple of provisions in the Compromise
Agreement are indicative of Don Julian’s desire along this line.48 Hence, the total omission from inheritance of Don Julian’s heirs
from the second marriage, a requirement for preterition to exist, is hardly imaginable as it is unfounded.
Despite the debunking of respondents’ argument on preterition, still the petition would ultimately rise or fall on whether there
was a valid transfer effected by Don Julian to petitioner. Notably, Don Julian was also the president and director of petitioner,
and his daughter from the first marriage, Josefa, was the treasurer thereof. There is of course no legal prohibition against such
a transfer to a family corporation. Yet close scrutiny is in order, especially considering that such transfer would remove Lot No.
63 from the estate from which Milagros and her children could inherit. Both the alleged transfer deed and the title which
necessarily must have emanated from it have to be subjected to incisive and detailed examination.
Well-settled, of course, is the rule that a certificate of title serves as evidence of an indefeasible title to the property in favor of
the person whose name appears therein.49 A certificate of title accumulates in one document a precise and correct statement

221
of the exact status of the fee held by its owner. The certificate, in the absence of fraud, is the evidence of title and shows
exactly the real interest of its owner.50
To successfully assail the juristic value of what a Torrens title establishes, a sufficient and convincing quantum of evidence on
the defect of the title must be adduced to overcome the predisposition in law in favor of a holder of a Torrens title. Thus,
contrary to the appellate court’s ruling, the appearance of a mere thumbmark of Don Julian instead of his signature in the
Supplemental Deed would not affect the validity of petitioner’s title for this Court has ruled that a thumbmark is a recognized
mode of signature.51
The truth, however, is that the replacement of OCT No. 5203 in the name of Julian by T.C.T. No. T-375 is marred by a grave
irregularity which is also an illegality, as it contravenes the orthodox, conventional and normal process established by law. And,
worse still, the illegality is reflected on the face of both titles. Where, as in this case, the transferee relies on a voluntary
instrument to secure the issuance of a new title in his name such instrument has to be presented to the Registry of Deeds. This
is evident from Sections 53 and 57 of Presidential Decree (P.D.) No. 1529 or the Property Registration Decree. The sections read,
thus:
SEC. 53. Presentation of owner’s duplicate upon entry of new certificate. – No voluntary instrument shall be registered by the
Register of Deeds unless the owner’s duplicate certificate is presented with such instrument, except in cases expressly
provided for in this Decree or upon order of the court, for cause shown. (Emphasis supplied)
....
SEC. 57. Procedure in registration of conveyances. – An owner desiring to convey his registered land in fee simple shall execute
and register a deed of conveyance in a form sufficient in law. The Register of Deeds shall thereafter make out in the
registration book a new certificate of title to the grantee and shall prepare and deliver to him an owner’s duplicate certificate.
The Register of Deeds shall note upon the original and duplicate certificate the date of transfer, the volume and page of the
registration book in which the new certificate is registered and a reference by number to the last preceding certificate. The
original and the owner’s duplicate of the grantor’s certificate shall be stamped "cancelled." The deed of conveyance shall be
filed and endorsed with the number and the place of registration of the certificate of title of the land conveyed. (Emphasis
supplied)
As petitioner bases its right to the subject lot on the Supplemental Deed, it should have presented it to the Register of Deeds to
secure the transfer of the title in its name. Apparently, it had not done so. There is nothing on OCT No. 5203 or on the
succeeding TCT No. T-375 either which shows that it had presented the Supplemental Deed. In fact, there is absolutely no
mention of a reference to said document in the original and transfer certificates of title. It is in this regard that the finding of
the Court of Appeals concerning the absence of entries on the blanks intended for the Book No. and Page No. gains significant
relevance. Indeed, this aspect fortifies the conclusion that the cancellation of OCT No. 5203 and the consequent issuance of TCT
No. T-375 in its place are not predicated on a valid transaction.
What appears instead on OCT No. 5203 is the following pertinent entry:
Entry No. 1374: Kind: Order: Executed in favor of J.L.T. AGRO, INC.
CONDITIONS: Lost owner’s duplicate is hereby cancelled, and null and void and a new Certificate of Title No. 375 is issued per
Order of the Court of First Instance on file in this office.
Date of Instrument: November 12, 1979
Date of Inscription: Nov. 12, 1979 4:00 P.M.

(SGD) MANUEL C. MONTESA

Acting Deputy Register of Deeds II
(Emphasis supplied)52

What the entry indicates is that the owner’s duplicate of OCT No. 5203 was lost, a petition for the reconstitution of the said
owner’s duplicate was filed in court, and the court issued an order for the reconstitution of the owner’s duplicate and its
replacement with a new one. But if the entry is to be believed, the court concerned (CFI, according to the entry) issued an order
for the issuance of a new title which is TCT No. T-375 although the original of OCT No. 5203 on file with the Registry of Deeds
had not been lost.
Going by the legal, accepted and normal process, the reconstitution court may order the reconstitution and replacement of the
lost title only, nothing else. Since what was lost is the owner’s copy of OCT No. 5203, only that owner’s copy could be ordered
replaced. Thus, the Register of Deeds exceeded his authority in issuing not just a reconstituted owner’s copy of the original
certificate of title but a new transfer certificate of title in place of the original certificate of title. But if the court order, as the

222
entry intimates, directed the issuance of a new transfer certificate of title—even designating the very number of the new
transfer certificate of title itself—the order would be patently unlawful. A court cannot legally order the cancellation and
replacement of the original of the O.C.T. which has not been lost,53 as the petition for reconstitution is premised on the loss
merely of the owner’s duplicate of the OCT
Apparently, petitioner had resorted to the court order as a convenient contrivance to effect the transfer of title to the subject
lot in its name, instead of the Supplemental Deed which should be its proper course of action. It was so constrained to do
because the Supplemental Deed does not constitute a deed of conveyance of the "registered land in fee simple" "in a form
sufficient in law," as required by Section 57 of P.D. No. 1529.
A plain reading of the pertinent provisions of the Supplemental Deed discloses that the assignment is not supported by any
consideration. The provision reads:
....
WHEREAS, in the Deed of Assignment of Assets with the Assumption of Liabilities executed by Julian L. Teves, Emilio B. Teves
and Josefa T. Escaño at Dumaguete City on 16th day of November 1972 and ratified in the City of Dumaguete before Notary
Public Lenin Victoriano, and entered in the latter’s notarial register as Doc. No. 367; Page No. 17; Book No. V; series of 1972,
Julian L. Teves, Emilio B. Teves and Josefa T. Escaño, transferred, conveyed and assigned unto J.L.T. AGRO, INC., all its assets and
liabilities as reflected in the Balance Sheet of the former as of December 31, 1971.
WHEREAS, on the compromise agreement, as mentioned in the Decision made in the Court of First Instance of Negros Oriental,
12th Judicial District Branch II, on Dec. 31, 1964 pertaining to Civil Case No. 3443 the following properties were adjudicated to
Don Julian L. Teves. We quote.
From the properties at Bais
Adjudicated to Don Julian L.Teves
....
Lot No. 63, Tax Dec. No. 33, Certificate of Title No. 5203, together with all improvements. Assessed value - P2,720.00
....
WHEREAS, this Deed of Assignment is executed by the parties herein in order to effect the registration of the transfer of the
above corporation.
NOW, THEREFORE, for and in consideration of the above premises the ASSIGNOR hereby transfers, conveys, and assigns unto
J.L.T. AGRO, INC., the above described parcel of land[s] with a fair market value of EIGHTY-FOUR THOUSAND PESOS
(P84,000.00), Philippine Currency, and which transfer, conveyance and assignment shall become absolute upon signing. 54
(Emphasis supplied)
The amount of P84,000.00 adverted to in the dispositive portion of the instrument does not represent the consideration for the
assignment made by Don Julian. Rather, it is a mere statement of the fair market value of all the nineteen (19) properties
enumerated in the instrument, of which Lot No. 63 is just one, that were transferred by Don Julian in favor of petitioner.
Consequently, the testimony55 of petitioner’s accountant that the assignment is supported by consideration cannot prevail over
the clear provision to the contrary in the Supplemental Deed.
The Court of Appeals, on the other hand, apparently considered the 1948 mortgage which is annotated on the back of the TCT
No. T-375 as the consideration for the assignment.56 However, the said annotation57 shows that the mortgage was actually
executed in favor of Rehabilitation Finance Corporation, not of petitioner.58 Clearly, said mortgage, executed as it was in favor
of the Rehabilitation Finance Corporation and there being no showing that petitioner itself paid off the mortgate obligation,
could not have been the consideration for the assignment to petitioner.
Article 1318 of the New Civil Code enumerates the requisites of a valid contract, namely: (1) consent of the contracting parties;
(2) object certain which is the subject matter of the contract; and (3) Cause of the obligation which is established.
Thus, Article 1352 declares that contracts without cause, or with unlawful cause produce no effect whatsoever. Those contracts
lack an essential element and they are not only voidable but void or inexistent pursuant to Article 1409, paragraph (2).59 The
absence of the usual recital of consideration in a transaction which normally should be supported by a consideration such as
the assignment made by Don Julian of all nineteen (19) lots he still had at the time, coupled with the fact that the assignee is a
corporation of which Don Julian himself was also the President and Director, forecloses the application of the presumption of
existence of consideration established by law.60
Neither could the Supplemental Deed validly operate as a donation. Article 749 of the New Civil Code is clear on the point, thus:

223
Art. 749. In order that the donation of the immovable may be valid, it must be made in a public document, specifying therein
the property donated and the value of the charges which the donee must satisfy.
The acceptance may be made in the same deed of donation or in a separate public document, but it shall not take effect unless
it is done during the lifetime of the donor.
If the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic form, and this step shall
be noted in both instruments.
In Sumipat, et al v. Banga, et al.,61 this Court declared that title to immovable property does not pass from the donor to the
donee by virtue of a deed of donation until and unless it has been accepted in a public instrument and the donor duly notified
thereof. The acceptance may be made in the very same instrument of donation. If the acceptance does not appear in the same
document, it must be made in another. Where the deed of donation fails to show the acceptance, or where the formal notice of
the acceptance, made in a separate instrument, is either not given to the donor or else not noted in the deed of donation and
in the separate acceptance, the donation is null and void.
In the case at bar, although the Supplemental Deed appears in a public document,62 the absence of acceptance by the donee in
the same deed or even in a separate document is a glaring violation of the requirement.
One final note. From the substantive and procedural standpoints, the cardinal objectives to write finis to a protracted litigation
and avoid multiplicity of suits are worth pursuing at all times.63 Thus, this Court has ruled that appellate courts have ample
authority to rule on specific matters not assigned as errors or otherwise not raised in an appeal, if these are indispensable or
necessary to the just resolution of the pleaded issues.64 Specifically, matters not assigned as errors on appeal but consideration
of which are necessary in arriving at a just decision and complete resolution of the case, or to serve the interest of justice or to
avoid dispensing piecemeal justice.65
In the instant case, the correct characterization of the Supplemental Deed, i.e., whether it is valid or void, is unmistakably
determinative of the underlying controversy. In other words, the issue of validity or nullity of the instrument which is at the
core of the controversy is interwoven with the issues adopted by the parties and the rulings of the trial court and the appellate
court.66 Thus, this Court is also resolute in striking down the alleged deed in this case, especially as it appears on its face to be a
blatant nullity.
WHEREFORE, foregoing premises considered, the Decision dated 30 September 1999 of the Court of Appeals is hereby
AFFIRMED. Costs against petitioner J.L.T. Agro, Inc.
SO ORDERED.

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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.1äwphï1.ñët
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

225
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 one-sentence 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 añade 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:

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... 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

227
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.

228
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 Doña 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-in-law, 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.

229
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

230
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.

231
G.R. No. L-22595 November 1, 1927
Testate Estate of Joseph G. Brimo, JUAN MICIANO, administrator, petitioner-appellee,
vs.
ANDRE BRIMO, opponent-appellant.
Ross, Lawrence and Selph for appellant.
Camus and Delgado for appellee.

ROMUALDEZ, J.:
The partition of the estate left by the deceased Joseph G. Brimo is in question in this case.
The judicial administrator of this estate filed a scheme of partition. Andre Brimo, one of the brothers of the deceased, opposed
it. The court, however, approved it.
The errors which the oppositor-appellant assigns are:
(1) The approval of said scheme of partition; (2) denial of his participation in the inheritance; (3) the denial of the motion for
reconsideration of the order approving the partition; (4) the approval of the purchase made by the Pietro Lana of the
deceased's business and the deed of transfer of said business; and (5) the declaration that the Turkish laws are impertinent to
this cause, and the failure not to postpone the approval of the scheme of partition and the delivery of the deceased's business
to Pietro Lanza until the receipt of the depositions requested in reference to the Turkish laws.
The appellant's opposition is based on the fact that the partition in question puts into effect the provisions of Joseph G. Brimo's
will which are not in accordance with the laws of his Turkish nationality, for which reason they are void as being in violation or
article 10 of the Civil Code which, among other things, provides the following:
Nevertheless, legal and testamentary successions, in respect to the order of succession as well as to the amount of the
successional rights and the intrinsic validity of their provisions, shall be regulated by the national law of the person whose
succession is in question, whatever may be the nature of the property or the country in which it may be situated.
But the fact is that the oppositor did not prove that said testimentary dispositions are not in accordance with the Turkish laws,
inasmuch as he did not present any evidence showing what the Turkish laws are on the matter, and in the absence of evidence
on such laws, they are presumed to be the same as those of the Philippines. (Lim and Lim vs. Collector of Customs, 36 Phil.,
472.)
It has not been proved in these proceedings what the Turkish laws are. He, himself, acknowledges it when he desires to be
given an opportunity to present evidence on this point; so much so that he assigns as an error of the court in not having
deferred the approval of the scheme of partition until the receipt of certain testimony requested regarding the Turkish laws on
the matter.
The refusal to give the oppositor another opportunity to prove such laws does not constitute an error. It is discretionary with
the trial court, and, taking into consideration that the oppositor was granted ample opportunity to introduce competent
evidence, we find no abuse of discretion on the part of the court in this particular. There is, therefore, no evidence in the record
that the national law of the testator Joseph G. Brimo was violated in the testamentary dispositions in question which, not being
contrary to our laws in force, must be complied with and executed. lawphil.net
Therefore, the approval of the scheme of partition in this respect was not erroneous.
In regard to the first assignment of error which deals with the exclusion of the herein appellant as a legatee, inasmuch as he is
one of the persons designated as such in will, it must be taken into consideration that such exclusion is based on the last part of
the second clause of the will, which says:
Second. I like desire to state that although by law, I am a Turkish citizen, this citizenship having been conferred upon me by
conquest and not by free choice, nor by nationality and, on the other hand, having resided for a considerable length of time in
the Philippine Islands where I succeeded in acquiring all of the property that I now possess, it is my wish that the distribution of
my property and everything in connection with this, my will, be made and disposed of in accordance with the laws in force in
the Philippine islands, requesting all of my relatives to respect this wish, otherwise, I annul and cancel beforehand whatever
disposition found in this will favorable to the person or persons who fail to comply with this request.
The institution of legatees in this will is conditional, and the condition is that the instituted legatees must respect the testator's
will to distribute his property, not in accordance with the laws of his nationality, but in accordance with the laws of the
Philippines.

232
If this condition as it is expressed were legal and valid, any legatee who fails to comply with it, as the herein oppositor who, by
his attitude in these proceedings has not respected the will of the testator, as expressed, is prevented from receiving his legacy.
The fact is, however, that the said condition is void, being contrary to law, for article 792 of the civil Code provides the
following:
Impossible conditions and those contrary to law or good morals shall be considered as not imposed and shall not prejudice the
heir or legatee in any manner whatsoever, even should the testator otherwise provide.
And said condition is contrary to law because it expressly ignores the testator's national law when, according to article 10 of the
civil Code above quoted, such national law of the testator is the one to govern his testamentary dispositions.
Said condition then, in the light of the legal provisions above cited, is considered unwritten, and the institution of legatees in
said will is unconditional and consequently valid and effective even as to the herein oppositor.
It results from all this that the second clause of the will regarding the law which shall govern it, and to the condition imposed
upon the legatees, is null and void, being contrary to law.
All of the remaining clauses of said will with all their dispositions and requests are perfectly valid and effective it not appearing
that said clauses are contrary to the testator's national law.
Therefore, the orders appealed from are modified and it is directed that the distribution of this estate be made in such a
manner as to include the herein appellant Andre Brimo as one of the legatees, and the scheme of partition submitted by the
judicial administrator is approved in all other respects, without any pronouncement as to costs.
So ordered.

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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.

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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/return-Lot 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.

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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

236
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

237
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.

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