[1] G.R. No.
G.R. No. L-10806 July 6, 1918 order dated January 20, 1915, Monica Bona's petition was granted and a
MONICA BONA, petitioner-appellant,vs.HOSPICIO BRIONES, ET
AL., objectors-appellees.
1.WILLS; NOTARY AS WITNESS TO EXECUTION.—A will was executed by a
person capable of making it before two attesting witnesses and a notary who, by the
order and under the direction of the testator, was charged with the drafting of the said
will, and who understood the instrument drafted by him as wholly containing the will
of the above-mentioned testator, who certified as to the execution and authenticity of
the said will and as to its having been signed by the testator and the two witnesses in
the act of its execution and in his presence, stating further that these witnesses affirm
that they were present when the testator and the said notary signed the said
will. Held: That it cannot be questioned that in the execution of the will the requisites
laid down by section 618 of Act No. 190 are present, and therefore it should be
admitted to probate, inasmuch as Domingo de la Fuente was present and intervenQd
in the making of the will by Francisco Briones more as an attesting witness than as a
notary—the latter's services being no longer necessary in the execution of a will in
accordance with the said Act.
2.ID.; APPLICATION OP ACT No. 2645, PASSED AFTER DEATH OF
TESTATOR.—The will in question having been executed in September, 1911, five
years before Act No. 2645, amending said section 618 of Act No. 190 went into
effect (July 1, 1916), which amendment took place two years and some months after
the death of the testator Briones (August 14, 1913), it is evident that said amendatory
Act cannot apply to this case.
3.STATUTORY CONSTRUCTION; RETROACTIVE EFFECT OF NEW LAW.—
The principle that a new law shall not have any retroactive effect only governs the
rights arising from acts done under the rule of the former law; but if the right be
declared for the first time by the subsequent law it shall take effect from that time
even though it has arisen from acts subject to the former laws, provided that it does
not prejudice another acquired right of the same origin. It is well known that
hereditary rights are not born nor does the will produce any effect except from the
moment of the death of the person whose inheritance is concerned. (Decision of the
supreme court of Spain of June 24 1897.)
TORRES, J.:
Counsel for Monica Bona, the widow by the second marriage of the
deceased Francisco Briones who died on August 14, 1913, applied for the
probate of the will which the said deceased husband on September 16, 1911,
executed during his lifetime; for the fixing of a day for the hearing and
presentation of evidence after all the interested parties had been cited; and
then for the approval of the partition had been cited; and then for the
approval of the partition property made by the testator in the said will. By an
Succession- Assignment No. 7
date set for the trial and other necessary proceedings for the probate of said
will.
Counsel for Hospicio, Gregoria, and Carmen, all surnamed Briones, the
legitimate children by the first marriage of the testator, by a pleading dated
March 5, 1915, opposed the probate of the will presented by the widow of the
deceased Briones, alleging that the said will was executed before two
witnesses only and under unlawful and undue pressure or influence
exercised upon the person of the testator who thus signed through fraud and
deceit; and he prayed that for that reason the said will be declared null and of
no value, with costs against the petitioners.
The trial of the case opened and in the presence of counsel for both parties,
Gregorio Bustilla, one of the witnesses of the said will, was examined and he
stated under oath: That he as well as Sixto Barrameda and Domingo de la
Fuente, was actually present as attesting witness when Francisco Briones
executed his will in the month of September in his (Bustilla's) house situated
in the municipality of Bao, Ambos Camarines; that Francisco Briones
knowing of the presence of notary Domingo de la Fuente in the house, he
went upstairs and announced himself; that on being asked what he wanted,
Briones stated that he wanted to execute his will; that after Briones and the
notary had talked with each other, the former left and after a while returned
bringing with him some paper; that then Domingo de la Fuente, under the
direction of Francisco Briones, began to draft the will, which when finished
was signed by the latter in the presence of the notary, of the declarant, and
of another witness, Sixto Barrameda; that then the three witnesses — the
declarant, de la Fuente, and Barrameda — signed in the presence of each
other. The declarant identified the signature placed on the will by the testator
Briones and those of the other witnesses Sixto Barrameda and Domingo dela
Fuente, who all signed in the presence of the testator himself. He stated
further that the testator at that moment was in his sound judgment and not
forced to execute the will. He identified the document Exhibit A as the will
executed by Francisco Briones and the signature of the latter as the one
placed by the testator. By agreement of both parties it was made to appear in
the record that, if the witnesses Sixto Barrameda and Domingo de la Fuente
were called, they would have testified in the same terms as witness Gregorio
Bustilla.
In view of the above, the judge rendered judgment, dated March 27, 1915,
denying probate to the will Exhibit A as executed by Francisco Briones. From
Page 1 of 29
the judgment, counsel for Monica Bona appealed and prayed to be allowed
to sue further as a pauper; whereupon, by order of March 31, 1915, the judge
admitted the appeal, ordered the original records to be brought up, and
reiterated his order of December 28, 1913, declaring Bona as a pauper, for
the purposes of the appeal interposed.
The whole issue discussed by the parties and submitted for the decision of
this court resolves itself as to whether or not in the execution of the will in
question the solemnities prescribed by section 618 of Act No. 190 have been
observed.
But before proceeding further it is indispensable to note that the will in
question was executed by Francisco Briones on September 16, 1911, as
already stated and the order denying probate was rendered on March 27,
1915, both dated being prior to that of Act No. 2645 amending said section
618 and promulgated on February 24, 1916, which took effect only from July
first of the last named year: so that, in order to explain whether or not the
above-mentioned will was executed in accordance with the law then in force,
the last named law cannot be applied and the will in question should be
examined in accordance with, and under the rules of, the law in force at the
time of its execution.
The oft-repeated section 618 of Act No. 190 says:
No will, except as provided in the preceding section, shall be valid to pass
any estate, real or personal, nor charge or affect the same, unless it be in
writing and signed by the testator, or by some other person in his presence,
and by his express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of each other. But the
absence of such form of attestation shall not render the will invalid if it is
proven that the will was in fact signed and attested as in this section
provided.
A mere reading of the last four paragraphs or parts of the will Exhibit A
shows in a clear manner that the said will in its form and contents expresses
without shadow of doubt the will of the testator; and that in its execution the
solemnities prescribed by the above-mentioned section 618 of Act No. 190
have been observed.
Even though Domingo de la Fuente drafted the will and intervened in its
preparation as a notary, by the order and under the express direction of the
testator, it is nevertheless true that he did it as a witness to the execution of
Succession- Assignment No. 7
the said will with positive and concrete acts, while the two other witnesses
Gregorio Bustilla and Sixto Barrameda merely attested all that appeared in
the second of the four paragraphs mentioned; for in its they certify that the
foregoing testament contains the last will of the testator Francisco Briones;
that the latter told them that before and at the time that he dictated his will,
there was no inducement nor threat by anybody; and that as he did not know
how to write the Spanish language, said testator requested Domingo de la
Fuente to write the will, and he did it as it is now drafted, certifying also, that
the testator Briones signed his will voluntarily with his own hand, in the
presence of the declarants who, as witnesses, signed the instrument on the
date expressed. Domingo de la Fuente on his part declared that the two said
witnesses formally swore before him on the certification which precedes the
said will and, according to this testimony as shown in the records and the
testimony of the above-mentioned witnesses, the said Domingo de la Fuente
wrote and drafted the said will Exhibit A by the order and under the direction
of the testator Francisco Briones, who signed in the presence of the
witnesses, Bustilla and Barrameda and of Notary Domingo de la Fuente, all
of whom immediately signed also in the presence of the testator, each doing
it in the presence of each other. So that, although it is not shown expressly
that Domingo de la Fuente was an attesting witness to the will, yet it cannot
be denied that it was he who wrote it by the order and under the direction of
the testator; that he was a witness to its execution from the first to its last
line; and that he was perfectly aware of the fact that all that he had written in
the document Exhibit A expresses the genuine and true will of the testator.
He saw and was present when the latter signed his will, as also when the two
witnesses Bustilla and Barrameda affixed their signatures; said witnesses
also saw and were present when Domingo de la Fuente signed at the end of
the said document.
The name of Domingo de la Fuente appears as that of a notary who certifies
as to the certainty of the will made by Francisco Briones and of the
signatures of the testator as well as of the witnesses at its end; and as the
law does not require that one of the witnesses must necessarily be a notary,
and it cannot be denied that Domingo de la Fuente attested the execution
and the signing of the will not only by the testator but also by the attesting
witnesses, it cannot but be admitted that Domingo de la Fuente intervened,
attested, and signed the testament as a witness.
This is a case in which the judicial criterion should be inspired in the sense
that it is not defeated, and if the wish of the testator is so manifest and
express as in the instant case, it is not proper nor just to invalidate the will of
Page 2 of 29
Francisco Briones merely because of some small defect in form which is not In view of these facts, it follows that the judgment appealed from should be
essential nor of great importance, such as the failure to state therein that reversed and it should be declared as we hereby declare that the will Exhibit
Domingo de la Fuente was also a witness to the said will when he signed it A has been executed in due form by Francisco Briones on September 16,
twice. As a matter of act, he understood the contents of the will better than 1911, and that the said will contains and expresses the last will and
the two other attesting witnesses, for he really was a witness and he attested testamentary wishes of the deceased testator. Consequently, let the records
the execution of the will during its making until it was terminated and signed be returned to the court wherefrom they came with a certified copy of this
by the testator, by the witnesses, and by himself, even though he did it in the resolution in order that the judge, upon petition by the proper party, may
capacity of a notary. provide for the necessary proceedings with respect to the inheritance, and
the clerk of the court may issue certified copies of the said testament; without
The last paragraph of section 618 of Act No. 190 supplies a legal basis to any special ruling as to costs. so ordered.
support the validity of the will in question with the conditions for its probate
because, notwithstanding the existence of such defect merely in the form and
not in the substance, the certification of authenticity and the very text of the
will show in a clear and indubitable manner that the will Exhibit A contains
the last will of the testator, and that it was signed by the latter and attested as
being true and legitimate not only the two witnesses Bustilla and Barrameda
but also by the one who wrote it, Domingo de la Fuente, who was also a
truthful and reliable witness, even though he be called a notary public.

The requisites established by Act No. 2645, which amended the oft-repeated
section 618 cannot be required in the probate of the will here, inasmuch as
this document was executed in September, 1911, five years before said
amendatory law began to take effect (July 1, 1916), while the testator died on
August 14, 1913, two years and some months before the enforcement of the
said law; and so, the only law applicable to the present case is the provision
contained in section 618 of Act No. 190, and in accordance with the
provisions of this section, the said will should be probated; for it has been
presented to the court many months before the amendatory act went into
effect.

It is well-known that the principle that a new law shall not have retroactive
effect only governs the rights arising from acts done under the rule of the
former law; but if the right be declared for the first time by a subsequent law it
shall take effect from that time even though it has arisen from acts subject to
the former laws, provided that it does not prejudice another acquired right of
the same origin.

It is well-known that hereditary rights are not born nor does the will produce
any effect until the moment of the death of the person whose inheritance is
concerned. (Decision rendered in cassation by the supreme court of Spain
on June 24, 1897.)

Succession- Assignment No. 7 Page 3 of 29

[2] G.R. No. L-20234 December 23, 1964
PAULA DE LA CERNA, ET AL., petitioners, vs. MANUELA REBACA
POTOT, ET AL., and THE HONORABLE COURT OF
APPEALS, respondents.
Judgments; Probate courts; Error of law does not affect jurisdiction, of
probate court nor conclusive effect of its decision.—An error of law committed in
admitting a joint will to probate does not affect the jurisdiction of the probate court
nor the conclusive effect of its final decision.
Same; Same; Probate decree of joint will affects only share of deceased
spouse.—A final probate decree of a joint will of husband and wife affects only the
share of the deceased spouse and cannot include the disposition of said joint will, in
so far as the estate of the latter spouse is concerned, must be, on her death,
reexamined and adjudicated de novo.
Wills; Effects of validity of joint will as to share of wife who dies later than the
husband.—Where a husband and wife executed a joint will and upon the death of the
husband said will was admitted to probate by a final decree of the court although
erroneous, and the wife dies later, it is held that said first decree of probate affects
only the estate of the husband but cannot affect the estate of the wife, considering
that a joint will is a separate will of each testator; and a joint will being prohibited by
law, the estate of the wife should pass upon her death to her intestate heirs and not to
the testamentary heir, unless some other valid will is shown to exist in favor of the
latter or unless the testamentary heir is the only heir of said wife.
REYES, J.B.L., J.:
Appeal by Paula de la Cerna and others from a decision of the Court of
Appeals, Sixth Division (C.A.-G.R. No. 23763-R) reversing that of the Court
of First Instance of Cebu (Civ. Case No. R-3819) and ordering the dismissal
of an action for partition.
The factual background appears in the following portion of the decision of the
Court of Appeals (Petition, Annex A, pp. 2-4):
It appears that on May 9, 1939, the spouses, Bernabe de la Serna and
Gervasia Rebaca, executed a joint last will and testament in the local dialect
whereby they willed that "our two parcels of land acquired during our
marriage together with all improvements thereon shall be given to Manuela
Rebaca, our niece, whom we have nurtured since childhood, because God
did not give us any child in our union, Manuela Rebaca being married to
Nicolas Potot", and that "while each of the testators is yet living, he or she will
continue to enjoy the fruits of the two lands aforementioned", the said two
parcels of land being covered by Tax No. 4676 and Tax No. 6677, both
situated in sitio Bucao, barrio Lugo, municipality of Borbon, province of Cebu.
Succession- Assignment No. 7
Bernabe dela Serna died on August 30, 1939, and the aforesaid will was
submitted to probate by said Gervasia and Manuela before the Court of First
Instance of Cebu which, after due publication as required by law and there
being no opposition, heard the evidence, and, by Order of October 31, 1939;
in Special Proceedings No. 499, "declara legalizado el documento Exhibit A
como el testamento y ultima voluntad del finado Bernabe de la Serna con
derecho por parte du su viuda superstite Gervasia Rebaca y otra testadora al
propio tiempo segun el Exhibit A de gozar de los frutos de los terranos
descritos en dicho documents; y habido consideracion de la cuantia de
dichos bienes, se decreta la distribucion sumaria de los mismos en favor de
la logataria universal Manuela Rebaca de Potot previa prestacion por parte
de la misma de una fianza en la sum de P500.00 para responder de
cualesquiera reclamaciones que se presentare contra los bienes del finado
Bernabe de la Serna de los años desde esta fecha" (Act Esp. 499,
Testamentaria Finado Bernabe de la Serna) Upon the death of Gervasia
Rebaca on October 14, 1952, another petition for the probate of the same
will insofar as Gervasia was concerned was filed on November 6, 1952,
being Special Proceedings No. 1016-R of the same Court of First Instance of
Cebu, but for failure of the petitioner, Manuela R. Potot and her attorney,
Manuel Potot to appear, for the hearing of said petition, the case was
dismissed on March 30, 1954 Spec. Proc. No. 1016-R, In the matter of the
Probate of the Will of Gervasia Rebaca).
The Court of First Instance ordered the petition heard and declared the
testament null and void, for being executed contrary to the prohibition of joint
wills in the Civil Code (Art. 669, Civil Code of 1889 and Art. 818, Civil Code
of the Philippines); but on appeal by the testamentary heir, the Court of
Appeals reversed, on the ground that the decree of probate in 1939 was
issued by a court of probate jurisdiction and conclusive on the due execution
of the testament. Further, the Court of Appeals declared that:
... . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code).
prohibits the making of a will jointly by two or more persons either for their
reciprocal benefit or for the benefit of a third person. However, this form of
will has long been sanctioned by use, and the same has continued to be
used; and when, as in the present case, one such joint last will and
testament has been admitted to probate by final order of a Court of
competent jurisdiction, there seems to be no alternative except to give effect
to the provisions thereof that are not contrary to law, as was done in the case
of Macrohon vs. Saavedra, 51 Phil. 267, wherein our Supreme Court gave
Page 4 of 29
effect to the provisions of the joint will therein mentioned, saying, "assuming
that the joint will in question is valid."
Whence this appeal by the heirs intestate of the deceased husband, Bernabe
de la Cerna.
regarded, the holding of the court of First Instance of Cebu that the joint will
is one prohibited by law was correct as to the participation of the deceased
Gervasia Rebaca in the properties in question, for the reasons extensively
discussed in our decision in Bilbao vs. Bilbao, 87 Phil. 144, that explained the
previous holding in Macrohon vs. Saavedra, 51 Phil. 267.

The appealed decision correctly held that the final decree of probate, entered
in 1939 by the Court of First Instance of Cebu (when the testator, Bernabe de
la Cerna, died), has conclusive effect as to his last will and testament despite
the fact that even then the Civil Code already decreed the invalidity of joint
wills, whether in favor of the joint testators, reciprocally, or in favor of a third
party (Art. 669, old Civil Code). The error thus committed by the probate
court was an error of law, that should have been corrected by appeal, but
which did not affect the jurisdiction of the probate court, nor the conclusive
effect of its final decision, however erroneous. A final judgment rendered on
a petition for the probate of a will is binding upon the whole world (Manalo vs.
Paredes, 47 Phil. 938; In re Estates of Johnson, 39 Phil. 156); and public
policy and sound practice demand that at the risk of occasional errors
judgment of courts should become final at some definite date fixed by
law. Interest rei publicae ut finis set litium (Dy Cay vs. Crossfield, 38 Phil,
521, and other cases cited in 2 Moran, Comments on the Rules of Court
(1963 Ed., p. 322).
Therefore, the undivided interest of Gervasia Rebaca should pass upon her
death to her heirs intestate, and not exclusively to the testamentary heir,
unless some other valid will in her favor is shown to exist, or unless she be
the only heir intestate of said Gervasia.
It is unnecessary to emphasize that the fact that joint wills should be in
common usage could not make them valid when our Civil Codes consistently
invalidated them, because laws are only repealed by other subsequent laws,
and no usage to the contrary may prevail against their observance (Art. 5,
Civ. Code of 1889; Art. 7, Civil Code of the Philippines of 1950).
WITH THE FOREGOING MODIFICATION, the judgment of the Court of
Appeals in CA-G.R. No. 23763-R is affirmed. No Costs.

Petitioners, as heirs and successors of the late Bernabe de la Cerna, are

concluded by the 1939 decree admitting his will to probate. The contention
that being void the will cannot be validated, overlooks that the ultimate
decision on Whether an act is valid or void rests with the courts, and here
they have spoken with finality when the will was probated in 1939. On this
court, the dismissal of their action for partition was correct.

But the Court of Appeals should have taken into account also, to avoid future
misunderstanding, that the probate decree in 1989 could only affect the
share of the deceased husband, Bernabe de la Cerna. It could not include
the disposition of the share of the wife, Gervasia Rebaca, who was then still
alive, and over whose interest in the conjugal properties the probate court
acquired no jurisdiction, precisely because her estate could not then be in
issue. Be it remembered that prior to the new Civil Code, a will could not be
probated during the testator's lifetime.

It follows that the validity of the joint will, in so far as the estate of the wife
was concerned, must be, on her death, reexamined and adjudicated de
novo, since a joint will is considered a separate will of each testator. Thus

Succession- Assignment No. 7 Page 5 of 29

[3] G.R. No. L-23445 June 23, 1966
REMEDIOS NUGUID, petitioner and appellant,
vs. FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and
appellees.
Wills; Succession; Probate of will; Court’s area of inquiry is limited to
extrinsic validity of will; When Court may rule on intrinsic validity.—In a
proceeding 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 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 that issue.
Same; Preterition; Omission of forced heirs in the will.—Where the deceased
left no descendants, legitimate or illegitimate, but she left forced heirs in the direct
ascending line—her parents, and her holographic will does not explicitly disinherit
them but simply omits their names altogether, the case is one of preterition of the
parents, not a case of ineffective disinheritance.
Same; Preterition distinguished from 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.” (Neri vs. Akutin, 72 Phil., 325).
Disinheritance, in turn, “is a testamentary disposition depriving any compulsory heir
of his share in the legitime for a cause authorized by law.” (Justice J.B.L. Reyes and
R.C. Puno, “An Outline of Philippine Civil Law”, 1966 ed., Vol. III, p. 8, citing
cases.) Disinheritance is always “voluntary”; preterition, upon the other hand, is
presumed to be “involuntary” (Sánchez Román, Estudios de Derecho Civil, 2nd
edition, Volumen 2.o, p. 1131).
Same; Effects flowing from preterition and disinheritance.—The effects
flowing from preterition are totally different from those of disinheritance. Preterition
under Article 854 of the New Civil Code “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”, but only “insofar as it may prejudice the person disinherited”, which last
phrase was omitted in the case of preterition (III Tolentino, Civil Code of the
Philippines, 1961 Edition, p. 172). Better stated yet, in disinheritance the nullity is
limited to that portion of the estate of which the disinherited heirs have been illegally
deprived.
Same; When institution of heirs is void.—Where the onesentence will institutes
the petitioner as the sole, universal heir and preterits the parents of the testatrix, and
it contains no specif ic legacies or bequests, such universal institution of petitioner,
by itself, is void. And intestate succession ensues.
Same; When legacies and devises merit consideration.—Legacies and devises
merit consideration only when they are so expressly given as such in a will. Nothing
Succession- Assignment No. 7
in Article 854 of the New Civil Code 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.
Same; Institution of heirs cannot be considered a legacy.—If every case of
institution of heirs may be made to fall into the concept of legacies and betterments
reducing the bequest accordingly, then the provisions of Articles 814 and 851 of the
old Civil Code, 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 articles concerning the reduction of inofficious legacies
or betterments would be a surplusage because they would be absorbed by Article 817
of the same Code.
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
Page 6 of 29
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
Succession- Assignment No. 7
I, ROSARIO NUGUID, being of sound and disposing mind and memory,
having amassed a certain amount of property, do hereby give, devise, and
bequeath all of the property which I may have when I die to my beloved sister
Remedios Nuguid, age 34, residing with me at 38-B Iriga, Q.C. In witness
whereof, I have signed my name this seventh day of November, nineteen
hundred and fifty-one.
(Sgd.) Illegible
T/ ROSARIO NUGUID
The statute we are called upon to apply in Article 854 of the Civil Code
which, in part, provides:
ART. 854. The preterition or omission of one, some, or all of the compulsory
heirs in the direct line, whether living at the time of the execution of the will or
born after the death of the testator, shall annul the institution of heir; but the
devises and legacies shall be valid insofar as they are not inofficious. ...
Except for inconsequential variation in terms, the foregoing is a reproduction
of Article 814 of the Civil Code of Spain of 1889, which is similarly herein
copied, thus —
Art. 814. The preterition of one or all of the forced heirs in the direct line,
whether living at the time of the execution of the will or born after the death of
the testator, shall void the institution of heir; but the legacies and
betterments4 shall be valid, in so far as they are not inofficious. ...
A comprehensive understanding of the term preterition employed in the law
becomes a necessity. On this point Manresa comments:
La pretericion consiste en omitar al heredero en el testamento. O no se le
nombra siquiera o aun nombrandole como padre, hijo, etc., no se le instituya
heredero ni se le deshereda expresamente ni se le asigna parte alguna de
los bienes, resultando privado de un modo tacito de su derecho a legitima.
Para que exista pretericion, con arreglo al articulo 814, basta que en el
testamento omita el testador a uno cualquiera de aquellos a quienes por su
muerte corresponda la herencia forzosa.
Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b)
Que la omision sea completa; que el heredero forzoso nada reciba en el
testamento.
Page 7 of 29
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
Succession- Assignment No. 7
de la sucesion intestada total o parcial. Sera total, cuando el testador que
comete la pretericion, hubiese dispuesto de todos los bienes por titulo
universal de herencia en favor de los herederos instituidos, cuya institucion
se anula, porque asi lo exige la generalidad del precepto legal del art. 814, al
determinar, como efecto de la pretericion, el de que "anulara la institucion de
heredero." ... 11
Really, as we analyze the word annul employed in the statute, there is no
escaping the conclusion that the universal institution of petitioner to the entire
inheritance results in totally abrogating the will. Because, the nullification of
such institution of universal heir — without any other testamentary disposition
in the will — amounts to a declaration that nothing at all was written.
Carefully worded and in clear terms, Article 854 offers no leeway for
inferential interpretation. Giving it an expansive meaning will tear up by the
roots the fabric of the statute. On this point, Sanchez Roman cites the
"Memoria annual del Tribunal Supreme, correspondiente a 1908", which in
our opinion expresses the rule of interpretation, viz:
... El art. 814, que preceptua en tales casos de pretericion la nulidad de la
institucion de heredero, no consiente interpretacion alguna favorable a la
persona instituida en el sentido antes expuesto aun cuando parezca, y en
algun caso pudiera ser, mas o menos equitativa, porque una nulidad no
significa en Derecho sino la suposicion de que el hecho o el acto no se ha
realizado, debiendo por lo tanto procederse sobre tal base o supuesto, y
consiguientemente, en un testamento donde falte la institucion, es obligado
llamar a los herederos forzosos en todo caso, como habria que llamar a los
de otra clase, cuando el testador no hubiese distribudo todos sus bienes en
legados, siendo tanto mas obligada esta consecuencia legal cuanto que, en
materia de testamentos, sabido es, segun tiene declarado la jurisprudencia,
con repeticion, que no basta que sea conocida la voluntad de quien testa si
esta voluntad no aparece en la forma y en las condiciones que la ley ha
exigido para que sea valido y eficaz, por lo que constituiria una interpretacion
arbitraria, dentro del derecho positivo, reputar como legatario a un heredero
cuya institucion fuese anulada con pretexto de que esto se acomodaba
mejor a la voluntad del testador, pues aun cuando asi fuese, sera esto razon
para modificar la ley, pero no autoriza a una interpretacion contraria a sus
terminos y a los principios que informan la testamentifaccion, pues no
porque parezca mejor una cosa en el terreno del Derecho constituyente, hay
razon para convereste juicio en regla de interpretacion, desvirtuando y
anulando por este procedimiento lo que el legislador quiere establecer. 12
Page 8 of 29
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
Succession- Assignment No. 7
The will here does not explicitly disinherit the testatrix's parents, the forced
heirs. It simply omits their names altogether. Said will rather than be labeled
ineffective disinheritance is clearly one in which the said forced heirs suffer
from preterition.
On top of this is the fact that the effects flowing from preterition are totally
different from those of disinheritance. Preterition under Article 854 of the Civil
Code, we repeat, "shall annul the institution of heir". This annulment is in
toto, unless in the will there are, in addition, testamentary dispositions in the
form of devises or legacies. In ineffective disinheritance under Article 918 of
the same Code, such disinheritance shall also "annul the institution of heirs",
put only "insofar as it may prejudice the person disinherited", which last
phrase was omitted in the case of preterition. 21 Better stated yet, in
disinheritance the nullity is limited to that portion of the estate of which the
disinherited heirs have been illegally deprived. Manresa's expressive
language, in commenting on the rights of the preterited heirs in the case of
preterition on the one hand and legal disinheritance on the other, runs thus:
"Preteridos, adquiren el derecho a todo; desheredados, solo les corresponde
un tercio o dos tercios, 22 el caso. 23
5. Petitioner insists that the compulsory heirs ineffectively disinherited are
entitled to receive their legitimes, but that the institution of heir "is not
invalidated," although the inheritance of the heir so instituted is reduced to
the extent of said legitimes. 24
This is best answered by a reference to the opinion of Mr. Chief Justice
Moran in the Neri case heretofore cited, viz:
But the theory is advanced that the bequest made by universal title in favor of
the children by the second marriage should be treated
as legado and mejora and, accordingly, it must not be entirely annulled but
merely reduced. This theory, if adopted, will result in a complete abrogation
of Articles 814 and 851 of the Civil Code. If every case of institution of heirs
may be made to fall into the concept of legacies and betterments reducing
the bequest accordingly, then the provisions of Articles 814 and 851
regarding total or partial nullity of the institution, would. be absolutely
meaningless and will never have any application at all. And the remaining
provisions contained in said article concerning the reduction of inofficious
legacies or betterments would be a surplusage because they would be
absorbed by Article 817. Thus, instead of construing, we would be destroying
integral provisions of the Civil Code.
Page 9 of 29
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.

Succession- Assignment No. 7 Page 10 of 29

[4] G.R. No. 72706 October 27, 1987
CONSTANTINO C. ACAIN, petitioner, vs. HON. INTERMEDIATE
APPELLATE COURT (Third Special Cases Division), VIRGINIA A.
FERNANDEZ and ROSA DIONGSON, respondents.
Civil Law; Succession; Preterition, meaning of; Article 854 of the Civil Code
not applicable to the surviving spouse; Adoption makes the adopted the legal heir of
the adopter.—Preterition consists in the omission in the testator’s will of the forced
heirs or anyone of them either because they are not mentioned therein, or, though
mentioned, they are neither instituted as heirs nor are expressly disinherited (Nuguid
v. Nuguid, 17 SCRA 450 [1966]; Maninang v. Court of Appeals, 114 SCRA [1982].
Insofar as the widow is concerned, Article 854 of the Civil Code may not apply as
she does not ascend or descend from the testator, although she is a compulsory heir.
Stated otherwise, even if the surviving spouse is a compulsory heir, there is no
preterition even if she is omitted from the inheritance, for she is not in the direct line.
(Art. 854, Civil Code) However, the same thing cannot be said of the other
respondent Virginia A. Fernandez, whose legal adoption by the testator has not been
questioned by petitioner (Memorandum for the Petitioner, pp. 8-9). Under Article 39
of P.D. No. 603, known as the Child and Youth Welfare Code, adoption gives to the
adopted person the same rights and duties as if he were a legitimate child of the
adopter and makes the adopted person a legal heir of the adopter. It cannot be denied
that she was totally omitted and preterited in the will of the testator and that both
adopted child and the widow were deprived of at least their legitime. Neither can it
be denied that they were not expressly disinherited. Hence, this is a clear case of
preterition of the legally adopted child.
Same; Same; Same; Preterition annuls the institution of an heir and creates
intestate succession but legacies and devises are valid and respected insofar as they
are not inofficious.—Preterition annuls the institution of an heir and annulment
throws open to intestate succession the entire inheritance including “la portion libre
(que) no hubiese dispuesto en virtual de legado, mejora o donation” (Manresa, as
cited in Nuguid v. Nuguid, supra; Maninang v. Court of Appeals, 114 SCRA
[1982]). The only provisions which do not result in intestacy are the legacies and
devises made in the will for they should stand valid and respected, except in so far as
the legitimes are concerned.
Same; Same; Same; Same; Institution of petitioner and his brothers and sisters
to the entire inheritance totally abrogates the will.—The universal institution of
petitioner together with his brothers and sisters to the entire inheritance of the
testator results in totally abrogating the will because the nullification of such
institution of universal heirs—without any other testamentary disposition in the
will—amounts to a declaration that nothing at all was written. Carefully worded and
in clear terms, Article 854 of the Civil Code offers no leeway for inferential
interpretation (Nuguid v. Nuguid), supra. No legacies nor devises having been
provided in the will the whole property of the deceased has been left by universal
title to petitioner and his brothers and sisters. The effect of annulling the institution
of heirs will be, necessarily, the opening of a total intestacy (Neri v. Akutin, 74 Phil.
Succession- Assignment No. 7
185 [1943]) except that proper legacies and devises must, as already stated above, be
respected.
Same; Same; Probate of a will; Petitioner has no legal standing to petition for
the probate of the will of the deceased, hence Special Proceeding No. 591-A-CEB
must be dismissed.—In order that a person may be allowed to intervene in a probate
proceeding he must have an interest in the estate, or in the will, or in the property to
be affected by it either as executor or as a claimant of the estate and an interested
party is one who would be benefited by the estate such as an heir or one who has a
claim against the estate like a creditor (Sumilang v. Ramagosa, 21 SCRA
1369/1967). Petitioner is not the appointed executor, neither a devisee or a legatee
there being no mention in the testamentary disposition of any gift of an individual
item of personal or real property he is called upon to receive (Article 782, Civil
Code). At the outset, he appears to have an interest in the will as an heir, defined
under Article 782 of the Civil Code as a person called to the succession either by the
provision of a will or by operation of law. However, intestacy having resulted from
the preterition of respondent adopted child and the universal institution of heirs,
petitioner is in effect not an heir of the testator. He has no legal standing to petition
for the probate of the will left by the deceased and Special Proceedings No. 591-A-
CEB must be dismissed.
Same; Same; Same; Rule that probate Court’s authority is limited only to the
extrinsic validity of the will, not inflexible and absolute; Court may pass upon the
intrinsic validity of the will under exceptional circumstances.—Special Proceedings
No. 591-CEB is for the probate of a will. As stated by respondent Court, the general
rule is that the probate court’s authority is limited only to the extrinsic validity of the
will, the due execution thereof, the testator’s testamentary capacity and the
compliance with the requisites or solemnities prescribed by law. The intrinsic
validity of the will normally come only after the Court has declared that the will has
been duly authenticated. Said court at this stage of the proceedings is not called upon
to rule on the intrinsic validity or efficacy of the provisions of the will (Nuguid v.
Nuguid, 17 SCRA 449 [1966]; Sumilang v. Ramagosa, supra; Maninang v. Court of
Appeals, 114 SCRA 478 [1982]; Cayetano v. Leonidas, 129 SCRA 522 [1984]); and
Nepomuceno v. Court of Appeals, 139 SCRA 206 [1985]). The rule, however, is not
inflexible and absolute. Under exceptional circumstances, the probate court is not
powerless to do what the situation constrains it to do and pass upon certain
provisions of the will (Nepomuceno v. Court of Appeals, supra). In Nuguid v.
Nuguid the oppositors to the probate moved to dismiss on the ground of absolute
preterition. The probate court acting on the motion held that the will in question was
a complete nullity and dismissed the petition without costs. On appeal the Supreme
Court upheld the decision of the probate court, induced by practical considerations.
Same; Same; Same; Same; Trial Court could have denied outright the probate
of the will or have passed upon its intrinsic validity where on its face it appears to be
intrinsically void.—For private respondents to have tolerated the probate of the will
and allowed the case to progress when on its face the will appears to be intrinsically
void as petitioner and his brothers and sisters were instituted as universal heirs
coupled with the obvious fact that one of the private respondents had been preterited
would have been an exercise in futility. It would have meant a waste of time, effort,
Page 11 of 29
expense, plus added futility. The trial court could have denied its probate outright or
could have passed upon the intrinsic validity of the testamentary provisions before
the extrinsic validity of the will was resolved (Cayetano v. Leonidas, supra; Nuguid
v. Nuguid, supra). The remedies of certiorari and prohibition were properly availed
of by private respondents.
Certiorari; Remedy of Certiorari cannot be a substitute for appeal,
exception.—As a general rule certiorari cannot be a substitute for appeal, except
when the questioned order is an oppressive exercise of judicial authority (People v.
Villanueva, 110 SCRA 465 [1981]; Vda. de Caldito v. Segundo, 117 SCRA 573
[1982]; Co Chuan Seng v. Court of Appeals, 128 SCRA 308 [1984]; and Bautista v.
Sarmiento, 138 SCRA 587 [1985]). It is axiomatic that the remedies of certiorari and
prohibition are not available where the petitioner has the remedy of appeal or some
other plain, speedy and adequate remedy in the course of law (D.D. Comendador
Construction Corporation v. Sayo (118 SCRA 590 [1982]). They are, however,
proper remedies to correct a grave abuse of discretion of the trial court in not
dismissing a case where the dismissal is founded on valid grounds (Vda. de Bacang
v. Court of Appeals, 125 SCRA 137 [1983]).
Same; Same; Certiorari may be entertained where appeal will not afford a
speedy and adequate relief.—Thus, this Court ruled that where the grounds for
dismissal are indubitable, the defendants had the right to resort to the more speedy,
and adequate remedies of certiorari and prohibition to correct a grave abuse of
discretion, amounting to lack of jurisdiction, committed by the trial court in not
dismissing the case, (Vda. de Bacang v. Court of Appeals, supra) and even assuming
the existence of the remedy of appeal, the Court harkens to the rule that in the
broader interests of justice, a petition for certiorari may be entertained, particularly
where appeal would not afford speedy and adequate relief.
PARAS, J.:
This is a petition for review on certiorari of the decision * of respondent. Court
of Appeals in AC-G.R. SP No. 05744 promulgated on August 30, 1985
(Rollo, p. 108) ordering the dismissal of the petition in Special Proceedings
No, 591 ACEB and its Resolution issued on October 23, 1985 (Rollo, p. 72)
denying respondents' (petitioners herein) motion for reconsideration.
The dispositive portion of the questioned decision reads as follows:
WHEREFORE, the petition is hereby granted and respondent Regional Trial
Court of the Seventh Judicial Region, Branch XIII (Cebu City), is hereby
ordered to dismiss the petition in Special Proceedings No. 591 ACEB No
special pronouncement is made as to costs.
The antecedents of the case, based on the summary of the Intermediate
Appellate Court, now Court of Appeals, (Rollo, pp. 108-109) are as follows:
Succession- Assignment No. 7
On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial
Court of Cebu City Branch XIII, a petition for the probate of the will of the late
Nemesio Acain and for the issuance to the same petitioner of letters
testamentary, docketed as Special Proceedings No. 591 ACEB (Rollo, p. 29),
on the premise that Nemesio Acain died leaving a will in which petitioner and
his brothers Antonio, Flores and Jose and his sisters Anita, Concepcion,
Quirina and Laura were instituted as heirs. The will allegedly executed by
Nemesio Acain on February 17, 1960 was written in Bisaya (Rollo, p. 27)
with a translation in English (Rollo, p. 31) submi'tted by petitioner without
objection raised by private respondents. The will contained provisions on
burial rites, payment of debts, and the appointment of a certain Atty. Ignacio
G. Villagonzalo as the executor of the testament. On the disposition of the
testator's property, the will provided:
THIRD: All my shares that I may receive from our properties. house, lands
and money which I earned jointly with my wife Rosa Diongson shall all be
given by me to my brother SEGUNDO ACAIN Filipino, widower, of legal age
and presently residing at 357-C Sanciangko Street, Cebu City. In case my
brother Segundo Acain pre-deceased me, all the money properties, lands,
houses there in Bantayan and here in Cebu City which constitute my share
shall be given to me to his children, namely: Anita, Constantino, Concepcion,
Quirina, laura, Flores, Antonio and Jose, all surnamed Acain.
Obviously, Segundo pre-deceased Nemesio. Thus it is the children of
Segundo who are claiming to be heirs, with Constantino as the petitioner in
Special Proceedings No. 591 ACEB
After the petition was set for hearing in the lower court on June 25, 1984 the
oppositors (respondents herein Virginia A. Fernandez, a legally adopted
daughter of tile deceased and the latter's widow Rosa Diongson Vda. de
Acain filed a motion to dismiss on the following grounds for the petitioner has
no legal capacity to institute these proceedings; (2) he is merely a universal
heir and (3) the widow and the adopted daughter have been pretirited. (Rollo,
p. 158). Said motion was denied by the trial judge.
After the denial of their subsequent motion for reconsideration in the lower
court, respondents filed with the Supreme Court a petition for certiorari and
prohibition with preliminary injunction which was subsequently referred to the
Intermediate Appellate Court by Resolution of the Court dated March 11,
1985 (Memorandum for Petitioner, p. 3; Rollo, p. 159).
Page 12 of 29
Respondent Intermediate Appellate Court granted private respondents'
petition and ordered the trial court to dismiss the petition for the probate of
the will of Nemesio Acain in Special Proceedings No. 591 ACEB
His motion for reconsideration having been denied, petitioner filed this
present petition for the review of respondent Court's decision on December
18, 1985 (Rollo, p. 6). Respondents' Comment was filed on June 6, 1986
(Rollo, p. 146).
On August 11, 1986 the Court resolved to give due course to the petition
(Rollo, p. 153). Respondents' Memorandum was filed on September 22,
1986 (Rollo, p. 157); the Memorandum for petitioner was filed on September
29, 1986 (Rollo, p. 177).
Petitioner raises the following issues (Memorandum for petitioner, p. 4):
(A) The petition filed in AC-G.R. No. 05744 for certiorari and prohibition with
preliminary injunction is not the proper remedy under the premises;
(B) The authority of the probate courts is limited only to inquiring into the
extrinsic validity of the will sought to be probated and it cannot pass upon the
intrinsic validity thereof before it is admitted to probate;
(C) The will of Nemesio Acain is valid and must therefore, be admitted to
probate. The preterition mentioned in Article 854 of the New Civil Code refers
to preterition of "compulsory heirs in the direct line," and does not apply to
private respondents who are not compulsory heirs in the direct line; their
omission shall not annul the institution of heirs;
(D) DICAT TESTATOR ET MERIT LEX. What the testator says will be the
law;
(E) There may be nothing in Article 854 of the New Civil Code, that suggests
that mere institution of a universal heir in the will would give the heir so
instituted a share in the inheritance but there is a definite distinct intention of
the testator in the case at bar, explicitly expressed in his will. This is what
matters and should be in violable.
(F) As an instituted heir, petitioner has the legal interest and standing to file
the petition in Sp. Proc. No. 591 ACEB for probate of the will of Nemesio
Acain and
Succession- Assignment No. 7
(G) Article 854 of the New Civil Code is a bill of attainder. It is therefore
unconstitutional and ineffectual.
The pivotal issue in this case is whether or not private respondents have
been pretirited.
Article 854 of the Civil Code provides:
Art. 854. The preterition or omission of one, some, or all of the compulsory
heirs in the direct line, whether living at the time of the execution of the will or
born after the death of the testator, shall annul the institution of heir; but the
devisees and legacies shall be valid insofar as they are not; inofficious.
If the omitted compulsory heirs should die before the testator, the institution
shall he effectual, without prejudice to the right of representation.
Preterition consists in the omission in the testator's will of the forced heirs or
anyone of them either because they are not mentioned therein, or, though
mentioned, they are neither instituted as heirs nor are expressly disinherited
(Nuguid v. Nuguid, 17 SCRA 450 [1966]; Maninang v. Court of Appeals, 114
SCRA 478 [1982]). Insofar as the widow is concerned, Article 854 of the Civil
Code may not apply as she does not ascend or descend from the testator,
although she is a compulsory heir. Stated otherwise, even if the surviving
spouse is a compulsory heir, there is no preterition even if she is omitted
from the inheritance, for she is not in the direct line. (Art. 854, Civil code)
however, the same thing cannot be said of the other respondent Virginia A.
Fernandez, whose legal adoption by the testator has not been questioned by
petitioner (.Memorandum for the Petitioner, pp. 8-9). Under Article 39 of P.D.
No. 603, known as the Child and Youth Welfare Code, adoption gives to the
adopted person the same rights and duties as if he were a legitimate child of
the adopter and makes the adopted person a legal heir of the adopter. It
cannot be denied that she has totally omitted and preterited in the will of the
testator and that both adopted child and the widow were deprived of at least
their legitime. Neither can it be denied that they were not expressly
disinherited. Hence, this is a clear case of preterition of the legally adopted
child.
Pretention annuls the institution of an heir and annulment throws open to
intestate succession the entire inheritance including "la porcion libre (que) no
hubiese dispuesto en virtual de legado mejora o donacion" Maniesa as cited
in Nuguid v. Nuguid, supra; Maninang v. Court of Appeals, 114 SCRA
[1982]). The only provisions which do not result in intestacy are the legacies
Page 13 of 29
and devises made in the will for they should stand valid and respected,
except insofar as the legitimes are concerned.
The universal institution of petitioner together with his brothers and sisters to
the entire inheritance of the testator results in totally abrogating the will
because the nullification of such institution of universal heirs-without any
other testamentary disposition in the will-amounts to a declaration that
nothing at all was written. Carefully worded and in clear terms, Article 854 of
the Civil Code offers no leeway for inferential interpretation (Nuguid v.
Nuguid), supra. No legacies nor devises having been provided in the will the
whole property of the deceased has been left by universal title to petitioner
and his brothers and sisters. The effect of annulling the "Institution of heirs
will be, necessarily, the opening of a total intestacy (Neri v. Akutin, 74 Phil.
185 [1943]) except that proper legacies and devises must, as already stated
above, be respected.
We now deal with another matter. In order that a person may be allowed to
intervene in a probate proceeding he must have an interest iii the estate, or
in the will, or in the property to be affected by it either as executor or as a
claimant of the estate and an interested party is one who would be benefited
by the estate such as an heir or one who has a claim against the estate like a
creditor (Sumilang v. Ramagosa, 21 SCRA 1369/1967). Petitioner is not the
appointed executor, neither a devisee or a legatee there being no mention in
the testamentary disposition of any gift of an individual item of personal or
real property he is called upon to receive (Article 782, Civil Code). At the
outset, he appears to have an interest in the will as an heir, defined under
Article 782 of the Civil Code as a person called to the succession either by
the provision of a will or by operation of law. However, intestacy having
resulted from the preterition of respondent adopted child and the universal
institution of heirs, petitioner is in effect not an heir of the testator. He has no
legal standing to petition for the probate of the will left by the deceased and
Special Proceedings No. 591 A-CEB must be dismissed.
As a general rule certiorari cannot be a substitute for appeal, except when
the questioned order is an oppressive exercise of j judicial authority (People
v. Villanueva, 110 SCRA 465 [1981]; Vda. de Caldito v. Segundo, 117 SCRA
573 [1982]; Co Chuan Seng v. Court of Appeals, 128 SCRA 308 [1984]; and
Bautista v. Sarmiento, 138 SCRA 587 [1985]). It is axiomatic that the
remedies of certiorari and prohibition are not available where the petitioner
has the remedy of appeal or some other plain, speedy and adequate remedy
in the course of law (DD Comendador Construction Corporation v. Sayo (118
Succession- Assignment No. 7
SCRA 590 [1982]). They are, however, proper remedies to correct a grave
abuse of discretion of the trial court in not dismissing a case where the
dismissal is founded on valid grounds (Vda. de Bacang v. Court of Appeals,
125 SCRA 137 [1983]).
Special Proceedings No. 591 ACEB is for the probate of a will. As stated by
respondent Court, the general rule is that the probate court's authority is
limited only to the extrinsic validity of the will, the due execution thereof, the
testator's testamentary capacity and the compliance with the requisites or
solemnities prescribed by law. The intrinsic validity of the will normally comes
only after the Court has declared that the will has been duly authenticated.
Said court at this stage of the proceedings is not called upon to rule on the
intrinsic validity or efficacy of the provisions of the will (Nuguid v. Nuguid, 17
SCRA 449 [1966]; Sumilang v. Ramagosa, supra; Maninang v. Court of
Appeals, 114 SCRA 478 [1982]; Cayetano v. Leonides, 129 SCRA 522
[1984]; and Nepomuceno v. Court of Appeals, 139 SCRA 206 [1985]).
The rule, however, is not inflexible and absolute. Under exceptional
circumstances, the probate court is not powerless to do what the situation
constrains it to do and pass upon certain provisions of the will (Nepomuceno
v. Court of Appeals, supra). In Nuguid v. Nuguid the oppositors to the
probate moved to dismiss on the ground of absolute preteriton The probate
court acting on the motion held that the will in question was a complete nullity
and dismissed the petition without costs. On appeal the Supreme Court
upheld the decision of the probate court, induced by practical considerations.
The Court said:
We pause to reflect. If the case were to be remanded for probate of the will,
nothing will be gained. On the contrary, this litigation will be protracted. And
for aught that appears in the record, in the event of probate or if the court
rejects the will, probability exists that the case will come up once again
before us on the same issue of the intrinsic validity or nullity of the will.
Result: waste of time, effort, expense, plus added anxiety. These are the
practical considerations that induce us to a belief that we might as well meet
head-on the issue of the validity of the provisions of the will in question. After
all there exists a justiciable controversy crying for solution.
In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the
petition by the surviving spouse was grounded on petitioner's lack of legal
capacity to institute the proceedings which was fully substantiated by the
Page 14 of 29
evidence during the hearing held in connection with said motion. The Court
upheld the probate court's order of dismissal.
In Cayetano v. Leonides, supra one of the issues raised in the motion to
dismiss the petition deals with the validity of the provisions of the will.
Respondent Judge allowed the probate of the will. The Court held that as on
its face the will appeared to have preterited the petitioner the respondent
judge should have denied its probate outright. Where circumstances demand
that intrinsic validity of testamentary provisions be passed upon even before
the extrinsic validity of the will is resolved, the probate court should meet the
issue. (Nepomuceno v. Court of Appeals, supra; Nuguid v. Nuguid, supra).
the broader interests of justice, a petition for certiorari may be entertained,
particularly where appeal would not afford speedy and adequate relief.
(Maninang Court of Appeals, supra).
PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit
and the questioned decision of respondent Court of Appeals promulgated on
August 30, 1985 and its Resolution dated October 23, 1985 are hereby
AFFIRMED.
SO ORDERED.

In the instant case private respondents filed a motion to dismiss the petition
in Sp. Proceedings No. 591 ACEB of the Regional Trial Court of Cebu on the
following grounds: (1) petitioner has no legal capacity to institute the
proceedings; (2) he is merely a universal heir; and (3) the widow and the
adopted daughter have been preterited (Rollo, p. 158). It was denied by the
trial court in an order dated January 21, 1985 for the reason that "the
grounds for the motion to dismiss are matters properly to be resolved after a
hearing on the issues in the course of the trial on the merits of the case
(Rollo, p. 32). A subsequent motion for reconsideration was denied by the
trial court on February 15, 1985 (Rollo, p. 109).

For private respondents to have tolerated the probate of the will and allowed
the case to progress when on its face the will appears to be intrinsically void
as petitioner and his brothers and sisters were instituted as universal heirs
coupled with the obvious fact that one of the private respondents had been
preterited would have been an exercise in futility. It would have meant a
waste of time, effort, expense, plus added futility. The trial court could have
denied its probate outright or could have passed upon the intrinsic validity of
the testamentary provisions before the extrinsic validity of the will was
resolved (Cayetano v. Leonides, supra; Nuquid v. Nuguid, supra. The
remedies of certiorari and prohibition were properly availed of by private
respondents.

Thus, this Court ruled that where the grounds for dismissal are indubitable,
the defendants had the right to resort to the more speedy, and adequate
remedies of certiorari and prohibition to correct a grave abuse of discretion,
amounting to lack of jurisdiction, committed by the trial court in not dismissing
the case, (Vda. de Bacang v. Court of Appeals, supra) and even assuming
the existence of the remedy of appeal, the Court harkens to the rule that in

Succession- Assignment No. 7 Page 15 of 29

[5] G.R. No. L-13876 February 28, 1962
CONSOLACION FLORENTINO DE CRISOLOGO, ET AL., plaintiffs-
appellees, vs. DR. MANUEL SINGSON, defendant-appellant.
Wills and testaments; Designation of heirs; Purpose of fideicommissary
substitution.—It is of the essence of a fideicommissary substitution that an obligation
be clearly imposed upon the first heir to preserve and transmit to another the whole
or part of the estate bequeathed to him, upon his death or upon the happening of a
particular event.
DIZON, J.:
Action for partition commenced by the spouses Consolacion Florentino and
Francisco Crisologo against Manuel Singson in connection with a residential
lot located a Plaridel St., Vigan, Ilocos Sur, with an area of approximately 193
square meters, and the improvements existing thereon, covered by Tax No.
10765-C. Their complaint alleged that Singson owned one-half pro-indiviso of
said property and that Consolacion Florentino owned the other half by virtue
of the provisions of the duly probated last will of Dña. Leona Singson, the
original owner, and the project of partition submitted to, and approved by the
Court of First Instance of Ilocos Sur in special Proceeding No. 453; that
plaintiffs had made demands for the partition of said property, but defendant
refused to accede thereto, thus compelling them to bring action.
Defendant's defense was that Consolacion Florentino was a mere
usufructuary of, and not owner of one-half pro-indiviso of the property in
question, and that, therefore, she was not entitled to demand partition
thereof.
After trial upon the issue thus posed, the lower court rendered judgment as
follows:
1. Declaring that the plaintiff is a co-owner pro-indiviso with the defendant of
the house and lot described in the complaint to the extent of each of an
undivided 1/2 portion thereof; .
2. Ordering the aforesaid co-owners to execute an agreement of partition of
the said property within 30 days from receipt of this judgment unless it be
shown that the division thereof may render it unserviceable, in which case
the provisions of Art. 498 of the New Civil Code may be applied;
.1äwphï1.ñët
Succession- Assignment No. 7
3. That in the event the said parties shall fail to do so, this Court will appoint
the corresponding commissioners to make the partition in accordance with
law; and .
4. Without special pronouncement as to costs." .
From the above judgment, defendant Singson appealed.
It is admitted that Dña. Leona Singson, who died single on January 13, 1948,
was the owner of the property in question at the time of her death. On July
31, 1951 she executed her last will which was admitted to probate in Special
Proceeding No. 453 of the lower court whose decision was affirmed by the
Court of Appeals in G.R. No. 3605-R. At the time of the execution of the will,
her nearest living relatives were her brothers Evaristo, Manuel and Dionisio
Singson, her nieces Rosario, Emilia and Trinidad, and her grandniece
Consolation, all surnamed Florentino.
Clause IX of her last will reads as follows: .
NOVENO. — Ordeno que se de a mi nieta por parte de mi hermana mia y
que al mismo tiempo vive en mi casa, y, por tanto, bajo mi proteccion, y es la
CONSOLACION FLORENTINO: —
(A). La mitad de mi casa de materials fuertes con techo de hierro
galvanizado, incluyendo la mitad de su solar, ubicado en la Poblacion de
Vigan, Ilocos Sur, Calle Plaridel, actualmente arrendada por los hermanos
Fortunato, Teofilo y Pedro del appellido Kairuz. Pero si falleciere antes o
despues que yo mi citada nieta, esta propiedad se dara por partes iguales
entre mis tres hermanos Evaristo, Manuel y Dionisio, o a sus herederos
forzosos en el caso de que alguno de ellas murieie antes ... (Exhibit F.)
The issue to be decided is whether the testamentary disposition above-
quoted provided for what is called sustitucion vulgar or for a sustitucion
fideicomisaria. This issue is, we believe, controlled by the pertinent
provisions of the Civil Code in force in the Philippines prior to the effectivity of
the New Civil Code, in view of the fact that the testatrix died on January 13,
1948. They are the following: .
Art. 774. The testator may designate one or more persons to substitute the
heir or heirs instituted in case such heir or heirs should die before him, or
should not wish or should be unable to accept the inheritance.
Page 16 of 29
A simple substitution, without a statement of the cases to which it is to apply,
shall include the three mentioned in the next preceeding paragraph, unless
the testator has otherwise provided:
Art. 781. Fidei-commissary substitutions by virtue of which the heir is
charged to preserve and transmit to a third person the whole or part of the
inheritance shall be valid and effective, provided they do not go beyond the
second degree, or that they are made in favor of persons living at the time of
the death of the testator." .
Art. 785. The following shall be inoperative: .
1. Fiduciary substitutions not made expressly, either by giving them this
name or by imposing upon the fiduciary the absolute obligation of delivering
the property to a second heir." ....
In accordance with the first legal provision quoted above, the testator may
not only designate the heirs who will succeed him upon his death, but also
provide for substitutes in the event that said heirs do not accept or are in no
position to accept the inheritance or legacies, or die ahead of him.
The testator may also bequeath his properties to a particular person with the
obligation, on the part of the latter, to deliver the same to another person,
totally or partially, upon the occurrence of a particular event (6 Manresa, p.
1112).
It is clear that the particular testamentary clause under consideration
provides for a substitution of the heir named therein in this manner: that upon
the death of Consolacion Florentino — whether this occurs before or after
that of the testatrix — the property bequeathed to her shall be delivered ("se
dara") or shall belong in equal parts to the testatrix's three brothers, Evaristo,
Manuel and Dionisio, or their forced heirs, should anyone of them die ahead
of Consolacion Florentino. If this clause created what is known as sustitucion
vulgar, the necessary result would be that Consolacion Florentino, upon the
death of the testatrix, became the owner of one undivided half of the
property, but if it provided for a sustitution fideicomisaria, she would have
acquired nothing more than usufructuary rights over the same half. In the
former case, she would undoubtedly be entitled to partition, but not in the
latter. As Manresa says, if the fiduciary did not acquire full ownership of the
property bequeathed by will, but mere usufructuary rights thereon until the
time came for him to deliver said property to the fideicomisario, it is obvious
that the nude ownership over the property, upon the death of the testatrix,
Succession- Assignment No. 7
passed to and was acquired by another person, and the person cannot be
other than the fideicomisario (6 Manresa p. 145).
It seems to be of the essence of a fideicommissary substitution that an
obligation be clearly imposed upon the first heir to preserve and transmit to
another the whole or part of the estate bequeathed to him, upon his death or
upon the happening of a particular event. For this reason, Art. 785 of the old
Civil Code provides that a fideicommissary substitution shall have no effect
unless it is made expressly ("de una manera expresa") either by giving it
such name, or by imposing upon the first heir the absolute obligation
("obligacion terminante") to deliver the inheritance to a substitute or second
heir. In this connection Manresa says: .
Para que la sustitucion sea fideicomisaria, es preciso segun el art. 781, que
se ordeno o encargue al primer heredero, cuando sea tal, que conserve y
transmita a una tercera persona o entidad el todo a parte de la herencia. O lo
que es lo mismo, la sustitucion fideicomisaria, como declaran las
resoluciones de 25 de Junio de 1895, 10 de Febrero de 1899 y 19 de Julio
de 1909, exige tres requisitos: .
1.o Un primer heredero llamado al goce de los bienes preferentemente.
2.o Obligacion claramente impuesta al mismo de conservar y transmitir a un
tercero el todo o parte del caudal.
3.o Un segundo heredero.
A estos requisitos anade la sentencia de 18 de Noviembre de 1918, otro
mas, el del que el fideicomisario tenga derecho a los bienes de la herencia
desde el momento de la muerte del testador, puesto que ha de suceder a
este y no al fiduciario.
Por tanto, cuando el causante se limita a instituir dos herederos, y por
fallecimiento de ambos o de cualquiera de ellos, asigna la parte del fallecido
o fallecidos, a los herederos legitimos o a otras personas, solo existe una
sustitucion vulgar, porque falta el requisito de haberse impuesto a los
primeros herederos la obligacion de conservar y transmitir los bienes, y el
articulo 789, en su parrafo primero, evige que la sustitucion sea expresa, ya
dandole el testador el nombre de sustitucion fideicomisaria, ya imponiendo al
sustituido la obligacion terminante de conservar y transmitir los bienes a un
segundo heredero.
Page 17 of 29
A careful perusal of the testamentary clause under consideration shows that
the substitution of heirs provided for therein is not expressly made of the
fideicommissary kind, nor does it contain a clear statement to the effect that
appellee, during her lifetime, shall only enjoy usufructuary rights over the
property bequeathed to her, naked ownership thereof being vested in the
brothers of the testatrix. As already stated, it merely provides that upon
appellee's death — whether this happens before or after that of the testatrix
— her share shall belong to the brothers of the testatrix.

In the light of the foregoing, we believe, and so hold, that the last will of the
deceased Dña. Leona Singson, established a mere sustitucion vulgar, the
substitution Consolacion Florentino by the brothers of the testatrix to be
effective or to take place upon the death of the former, whether it happens
before or after that of the testatrix.

IN VIEW OF THE FOREGOING, the appealed judgment is affirmed, with

costs.

Succession- Assignment No. 7 Page 18 of 29

[6] 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.
1.WILLS; INSTITUTION OF HEIRS; FIDEICOMMISSARY HEIR.—The
institution of heirs made in the will in question is in the nature of a fideicommissum:
there is an heiress primarily called to enjoy the estate; an obligation clearly imposed
upon her to preserve and transmit the whole of the estate to certain third persons; and
there are secondary heirs.
2.ID.; ID.; ID.; DISTINCTION BETWEEN FIDEICOMMISSUM AND TRUST.—
The heir instituted, or fideicommissioner, as article 783 of the Civil Code has it, is
entitled to the enjoyment of the estate. The fideicommissum thus arising from a
fideicommissary substitution, which is of Roman origin, is not exactly equivalent to,
and should not be confused with, the English "trust."
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.
Succession- Assignment No. 7
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
Page 19 of 29
confidence in my nephew Joaquin Perez Alcantara, whom I relieve from the
duties of administering my estate, because I recognize that his character is
not adapted to management and administration.
The appellants contend that in these clauses the testatrix has ordered a
simple substitution, while the appellee contends that it is a fideicommissary
substitution.
This will certainly provides for a substitution of heirs, and of the three cases
that might give rise to a simple substitution (art. 774, Civil Code), only the
death of the instituted heiress before the testatrix would in the instant case
give place to such substitution, inasmuch as nothing is said of the waiver of
inheritance, or incapacity to accept it. As a matter of fact, however, clause XI
provides for the administration of the estate in case the heiress instituted
should die after the testatrix and while the substitute heirs are still under age.
And it is evident that, considering the nature of simple substitution by the
heir's death before the testator, and the fact that by clause XI in connection
with clause X, the substitution is ordered where the heiress instituted
dies after the testatrix, this cannot be a case of simple substitution.
The existence of a substitution in the will is not and cannot be denied, and
since it cannot be a simple substitution in the light of the considerations
above stated, let us now see whether the instants case is a fideicommissary
substitution.
In clause IX, the testatrix institutes the plaintiff herein her sole and universal
heiress, and provides that upon her death (the testatrix's) and after probate
of the will and approval of the report of the committee on claims and
appraisal, said heiress shall receive and enjoy the whole hereditary estate.
Although this clause provides nothing explicit about substitution, it does not
contain anything in conflict with the idea of fideicommissary substitution. The
fact that the plaintiff was instituted the sole and universal heiress does not
prevent her children from receiving, upon her death and in conformity with
the express desire of the testatrix, the latter's hereditary estate, as provided
in the following (above quoted) clauses which cannot be disregarded if we
are to give a correct interpretation of the will. The word sole does not
necessarily exclude the idea of substitute heirs; and taking these three
clauses together, such word means that the plaintiff is the sole
heiress instituted in the first instance.
The disposition contained in clause IX, that said heiress shall receive and
enjoy the estate, is not incompatible with a fideicommissary substitution (it
Succession- Assignment No. 7
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
Page 20 of 29
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."
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.

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.
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.

The foregoing leads us to the conclusion that all the requisites of a

fideicommissary substitution, according to the quotation from Manresa above
inserted, are present in the case of substitution now under consideration, to
wit:

1. At first heir primarily called to the enjoyment of the estate. In this case the
plaintiff was instituted an heiress, called to the enjoyment of the estate,
according to clause IX of the will.

2. An obligation clearly imposed upon the heir to preserve and transmit to a

third person the whole or a part of the estate. Such an obligation is imposed
in clause X which provides that the "whole estate shall pass unimpaired to
her (heiress's) surviving children;" thus, instead of leaving the heiress at
liberty to dispose of the estate by will, or of leaving the law to take its course
in case she dies intestate, said clause not only disposes of the estate in favor
of the heiress instituted, but also provides for the disposition thereof in case
she should die after the testatrix.

3. A second heir. Such are the children of the heiress instituted, who are
referred to as such second heirs both in clause X and in clause XI.

Succession- Assignment No. 7 Page 21 of 29

[7] G.R. No. L-39247 June 27, 1975 creditors and other heirs.—It should be stressed that by reason of the surviving
In the Matter of the Petition to Approve the Will of Leodegaria Julian. husband’s conformity to his wife’s will and his renunciation of his hereditary rights,
FELIX BALANAY, JR., petitioner,vs. HON. ANTONIO M. MARTINEZ, his one-half conjugal share became a part of his deceased wife’s estate. His
Judge of the Court of First Instance of Davao, Branch VI; AVELINA B. conformity had the effect of validating the partition made in paragraph V of the will
without prejudice, of course, to the rights of the creditors and the legitimes of the
ANTONIO and DELIA B. LANABAN, respondents.
compulsory heirs.
Same; Same; Preterition of surviving spouse who conformed thereto does not
Special proceedings; Testate succession; Probate court may pass upon
produce intestacy.—In the instant case, the preterited heir was the surviving spouse.
intrinsic validity of a will before passing upon its formal validity.—The trial court
His preterition did not produce intestacy. Moreover, he signified his conformity to
acted correctly in passing upon the will’s intrinsic validity even before its formal
his wife’s will and renounced his hereditary rights.
validity had been established. The probate of a will might become an idle ceremony
Same; Same; Testacy is prefereable to intestacy.—Testacy is favored. Doubts
if on its face it appears to be intrinsically void. Where practical considerations
are resolved in favor of testacy especially where the will evinces an intention on the
demand that the intrinsic validity of the will be passed upon, even before it is
part of the testator to dispose of practically his whole estate. So compelling is the
probated, the court should meet the issue.
principle that intestacy should be avoided and that the wishes of the testator should
Same; Same; Invalidity of one testamentary disposition does not necessarily
prevail that sometimes the language of the will can be varied for the purpose of
invalidate all other dispositions made therein.—The rule is that “the invalidity of
giving it effect.
one of several dispositions contained in a will does not result in the invalidity of the
Same; Same; Probate court should not issue notice to creditors if only special
other dispositions, unless it is to be presumed that the testator would not have made
administrator has been appointed.—A notice to creditors is not in order if only a
such other dispositions if the first invalid disposition had not been made” (Art 792,
special administrator has been appointed. Section 1, Rule 86 x x x clearly
Civil Code).
contemplates the appointment of an executor or regular administrator and not that of
Same; Same; Statement that testator owns “southern half of conjugal state is
a special administrator.
contrary to law because spouses are proindiviso owners thereof.—The statement of
Same; Same; Courts; A court employee should not be appointed as
the testatrix that she owned the “southern half” of the conjugal lands is contrary to
administrator of decedent’s estate.—The probate court’s appointment of its branch
law because, although she was a coowner thereof, her share was inchoate and
clerk of court as special administrator is not a salutary practice because it might
proindiviso (Art. 143, Civil Code). But that illegal declaration does not nullify the
engender the suspicion that the probate Judge and his clerk of court are in cahoots in
entire will. It may be disregarded.
milking the decedent’s estate. x x x A court employee should devote his official time
Same; Same; Provision in a will that testator’s estate be kept intact and
to his official duties and should not have as a sideline the administration of a
legitimes of heirs be paid in cash is contrary to Art. 1080 of Civil Code where whole
decedent’s estate.
estate was not assigned to one or more heirs.—The provision of the will that the
properties of the testatrix should not be divided among her heirs during her
AQUINO, J.:
husband’s lifetime but should be kept intact and that the legitimes should be paid in
cash is contrary to article 1080 of the Civil Code. ... The testatrix in her will made a
Felix Balanay, Jr. appealed by certiorari from the order of the Court of First
partition of the entire conjugal estate among her six children (her husband had
renounced his hereditary rights and his one-half conjugal share). She did not assign Instance of Davao dated February 28, 1974, declaring illegal and void the will
the whole estate to one or more children as envisaged in article 1080. Hence, she had of his mother, Leodegaria Julian, converting the testate proceeding into an
no right to require that the legitimes be paid in cash. On the other hand, her estate intestate proceeding and ordering the issuance of the corresponding notice
may remain undivided only for a period of 20 years. to creditors (Special Case No. 1808). The antecedents of the appeal are as
Same; Same; Renunciation of inheritance by widower subject to limitation for follows:
his support and maintenance and preservation of his legitime.—Felix Balanay, Sr.
could validly renounce his hereditary rights and his one-half share of the conjugal Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on February 12,
partnership but insofar as said renunciation partakes of a donation of his hereditary
1973 in Davao City at the age of sixty-seven. She was survived by her
rights and his one-half share in the conjugal estate, it should be subject to the
limitations prescribed in articles 750 and 752 of the Civil Code. A portion of the husband, Felix Balanay, Sr., and by their six legitimate children named Felix
estate should be adjudicated to the widower for his support and maintenance. Or at Balanay, Jr., Avelina B. Antonio, Beatriz B. Solamo, Carolina B. Manguiob,
least his legitime should be respected. Delia B. Lanaban and Emilia B. Pabaonon.
Same; Same; Husband’s renunciation of hereditary rights and share in
conjugal estate make these assets part of testator’s estate, but without prejudice to

Succession- Assignment No. 7 Page 22 of 29

Felix J. Balanay, Jr. filed in the lower court a petition dated February 27,
1973 for the probate of his mother's notarial will dated September 5, 1970
which is written in English. In that will Leodegaria Julian declared (a) that she
was the owner of the "southern half of nine conjugal lots (par. II); (b) that she
was the absolute owner of two parcels of land which she inherited from her
father (par. III), and (c) that it was her desire that her properties should not be
divided among her heirs during her husband's lifetime and that their legitimes
should be satisfied out of the fruits of her properties (Par. IV).
Then, in paragraph V of the will she stated that after her husband's death (he
was eighty-two years old in 1973) her paraphernal lands and all the conjugal
lands (which she described as "my properties") should be divided and
distributed in the manner set forth in that part of her will. She devised and
partitioned the conjugal lands as if they were all owned by her. She disposed
of in the will her husband's one half share of the conjugal assets. *
Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the will on
the grounds of lack of testamentary capacity, undue influence, preterition of
the husband and alleged improper partition of the conjugal estate. The
oppositors claimed that Felix Balanay, Jr. should collate certain properties
which he had received from the testatrix.
Felix Balanay, Jr., in his reply to the opposition, attached thereto an affidavit
of Felix Balanay, Sr. dated April 18, 1973 wherein he withdrew his opposition
to the probate of the will and affirmed that he was interested in its probate.
On the same date Felix Balanay, Sr. signed an instrument captioned
"Conformation (sic) of Division and Renunciation of Hereditary Rights"
wherein he manifested that out of respect for his wife's will he "waived and
renounced' his hereditary rights in her estate in favor of their six children. In
that same instrument he confirmed the agreement, which he and his wife had
perfected before her death, that their conjugal properties would be partitioned
in the manner indicated in her will.
Avelina B. Antonio, an oppositor, in her rejoinder contended that the affidavit
and "conformation" of Felix Balanay, Sr. were void. The lower court in its
order of June 18, 1973 "denied" the opposition and reset for hearing the
probate of the will. It gave effect to the affidavit and conformity of Felix
Balanay, Sr. In an order dated August 28, 1973 it appointed its branch clerk
of court as special administrator of the decedent's estate.
Mrs. Antonio moved for the reconsideration of the lower court's order of June
18, 1973 on the grounds (a) that the testatrix illegally claimed that she was
Succession- Assignment No. 7
the owner of the southern half of the conjugal lots and (b) that she could not
partition the conjugal estate by allocating portions of the nine lots to her
children. Felix Balanay, Jr., through his counsel, Hermenegildo Cabreros,
opposed that motion. The lower court denied it in its order of October 15,
1973.
In the meanwhile, another lawyer appeared in the case. David O. Montaña,
Sr., claiming to be the lawyer of petitioner Felix Balanay, Jr. (his counsel of
record was Atty. Cabreros), filed a motion dated September 25, 1973 for
"leave of court to withdraw probate of alleged will of Leodegaria Julian and
requesting authority to proceed by intestate estate proceeding." In that
motion Montaña claimed to be the lawyer not only of the petitioner but also of
Felix Balanay, Sr., Beatriz B. Solamo, Carolina B. Manguiob and Emilia B.
Pabaonon.
Montaña in his motion assailed the provision of the will which partitioned the
conjugal assets or allegedly effected a compromise of future legitimes. He
prayed that the probate of the will be withdrawn and that the proceeding be
converted into an intestate proceeding. In another motion of the same date
he asked that the corresponding notice to creditors be issued.
Avelina B. Antonio and Delia B. Lanaban, through Atty. Jose B. Guyo, in their
comments dated October 15, 1973 manifested their conformity with the
motion for the issuance of a notice to creditors. They prayed that the will be
declared void for being contrary to law and that an intestacy be declared.
The lower court, acting on the motions of Atty. Montaña, assumed that the
issuance of a notice to creditors was in order since the parties had agreed on
that point. It adopted the view of Attys. Montaña and Guyo that the will was
void. So, in its order of February 28, 1974 it dismissed the petition for the
probate, converted the testate proceeding into an intestate proceeding,
ordered the issuance of a notice to creditors and set the intestate proceeding
for hearing on April 1 and 2, 1974. The lower court did not abrogate its prior
orders of June 18 and October 15, 1973. The notice to creditors was issued
on April 1, 1974 and published on May 2, 9 and 16 in the Davao Star in spite
of petitioner's motion of April 17, 1974 that its publication be held in
abeyance.
Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas, in a verified
motion dated April 15, 1974, asked for the reconsideration of the lower
court's order of February 28, 1974 on the ground that Atty. Montaña had no
authority to withdraw the petition for the allowance of the will. Attached to the
Page 23 of 29
motion was a copy of a letter dated March 27, 1974 addressed to Atty.
Montaña and signed by Felix Balanay, Jr., Beatriz V. Solamo, Carolina B.
Manguiob and Emilia B. Pabaonon, wherein they terminated Montaña's
services and informed him that his withdrawal of the petition for the probate
of the will was without their consent and was contrary to their repeated
reminder to him that their mother's will was "very sacred" to them.
Avelina B. Antonio and Delia B. Lanaban opposed the motion for
reconsideration. The lower court denied the motion in its order of June 29,
1974. It clarified that it declared the will void on the basis of its own
independent assessment of its provisions and not because of Atty. Montaña's
arguments.
The basic issue is whether the probate court erred in passing upon the
intrinsic validity of the will, before ruling on its allowance or formal validity,
and in declaring it void.
We are of the opinion that in view of certain unusual provisions of the will,
which are of dubious legality, and because of the motion to withdraw the
petition for probate (which the lower court assumed to have been filed with
the petitioner's authorization), the trial court acted correctly in passing upon
the will's intrinsic validity even before its formal validity had been established.
The probate of a will might become an idle ceremony if on its face it appears
to be intrinsically void. Where practical considerations demand that the
intrinsic validity of the will be passed upon, even before it is probated, the
court should meet the issue (Nuguid vs. Nuguid, 64 O.G. 1527, 17 SCRA
449. Compare with Sumilang vs. Ramagosa, L-23135, December 26, 1967,
21 SCRA 1369; Cacho vs. Udan, L-19996, April 30, 1965, 13 SCRA
693).1äwphï1.ñët
But the probate court erred in declaring, in its order of February 28, 1974 that
the will was void and in converting the testate proceeding into an intestate
proceeding notwithstanding the fact that in its order of June 18, 1973 , it gave
effect to the surviving husband's conformity to the will and to his renunciation
of his hereditary rights which presumably included his one-half share of the
conjugal estate.
The rule is that "the invalidity of one of several dispositions contained in a will
does not result in the invalidity of the other dispositions, unless it is to be
presumed that the testator would not have made such other dispositions if
the first invalid disposition had not been made" (Art. 792, Civil Code). "Where
some of the provisions of a will are valid and others invalid, the valid parts
Succession- Assignment No. 7
will be upheld if they can be separated from the invalid without defeating the
intention of the testator or interfering with the general testamentary scheme,
or doing injustice to the beneficiaries" (95 C.J.S. 873).
The statement of the testatrix that she owned the "southern half of the
conjugal lands is contrary to law because, although she was a coowner
thereof, her share was inchoate and proindiviso (Art. 143, Civil Code;
Madrigal and Paterno vs. Rafferty and Concepcion, 38 Phil. 414). But That
illegal declaration does not nullify the entire will. It may be disregarded.
The provision of the will that the properties of the testatrix should not be
divided among her heirs during her husband's lifetime but should be kept
intact and that the legitimes should be paid in cash is contrary to article 1080
of the Civil Code which reads:
ART. 1080. Should a person make a partition of his estate by an act inter
vivos, or by will, such partition shall be respected, insofar as it does not
prejudice the legitime of the compulsory heirs.
A parent who, in the interest of his or her family, to keep any agricultural,
industrial, or manufacturing enterprise intact, may avail himself of the right
granted him in this article, by ordering that the legitime of the other children
to whom the property is not assigned be paid in cash. (1056a)
The testatrix in her will made a partition of the entire conjugal estate among
her six children (her husband had renounced his hereditary rights and his
one-half conjugal share). She did not assign the whole estate to one or more
children as envisaged in article 1080. Hence, she had no right to require that
the legitimes be paid in cash. On the other hand, her estate may remain
undivided only for a period of twenty years. So, the provision that the estate
should not be divided during her husband's lifetime would at most be
effective only for twenty years from the date of her death unless there are
compelling reasons for terminating the coownership (Art. 1083, Civil Code).
Felix Balanay, Sr. could validly renounce his hereditary rights and his one-
half share of the conjugal partnership (Arts. 179[1] and 1041, Civil Code) but
insofar as said renunciation partakes of a donation of his hereditary rights
and his one-half share in the conjugal estate (Art. 1060[1] Civil Code), it
should be subject to the limitations prescribed in articles 750 and 752 of the
Civil Code. A portion of the estate should be adjudicated to the widower for
his support and maintenance. Or at least his legitime should be respected.
Page 24 of 29
Subject to the foregoing observations and the rules on collation, the will is
intrinsically valid and the partition therein may be given effect if it does not
prejudice the creditors and impair the legitimes. The distribution and partition
would become effective upon the death of Felix Balanay, Sr. In the
meantime, the net income should be equitably divided among the children
and the surviving spouse.
It should be stressed that by reason of the surviving husband's conformity to
his wife's will and his renunciation of his hereditary rights, his one-half
conjugal share became a part of his deceased wife's estate. His conformity
had the effect of validating the partition made in paragraph V of the will
without prejudice, of course, to the rights of the creditors and the legitimes of
the compulsory heirs.
Article 793 of the Civil Code provides that "property acquired after the making
of a will shall only pass thereby, as if the testator had it at the time of making
the will, should it expressly appear by the will that such was his intention".
Under article 930 of the Civil Code "the legacy or devise of a thing belonging
to another person is void, if the testator erroneously believed that the thing
pertained to him. But if the thing bequeathed, though not belonging to the
testator when he made the will, afterwards becomes his, by whatever title,
the disposition shall take effect."
In the instant case there is no doubt that the testatrix and her husband
intended to partition the conjugal estate in the manner set forth in paragraph
V of her will. It is true that she could dispose of by will only her half of the
conjugal estate (Art. 170, Civil Code) but since the husband, after the
dissolution of the conjugal partnership, had assented to her testamentary
partition of the conjugal estate, such partition has become valid, assuming
that the will may be probated.
The instant case is different from the Nuguid case, supra, where the testatrix
instituted as heir her sister and preterited her parents. Her will was
intrinsically void because it preterited her compulsory heirs in the direct line.
Article 854 of the Civil Code provides that "the preterition or omission of one,
some, or all of the compulsory heirs in the direct line, whether living at the
time of the execution of the will or born after the death of the testator, shall
annul the institution of heir; but the devises and legacies, shall be valid
insofar as they are not inofficious." Since the preterition of the parents
annulled the institution of the sister of the testatrix and there were no
Succession- Assignment No. 7
legacies and devises, total intestacy resulted (.Art. 960[2], Civil
Code).1äwphï1.ñët
In the instant case, the preterited heir was the surviving spouse. His
preterition did not produce intestacy. Moreover, he signified his conformity to
his wife's will and renounced his hereditary rights. .
It results that the lower court erred in not proceeding with the probate of the
will as contemplated in its uncancelled order of June 18, 1973. Save in an
extreme case where the will on its face is intrinsically void, it is the probate
court's duty to pass first upon the formal validity of the will. Generally, the
probate of the will is mandatory (Art. 838, Civil Code; Guevara vs. Guevara,
74 Phil. 479 and 98 Phil. 249; Fernandez vs. Dimagiba, L-23638, October 12,
1967, 21 SCRA 428).
As aptly stated by Mr. Justice Barredo, "the very existence of a purported
testament is in itself prima facie proof that the supposed testator has willed
that his estate should be distributed in the manner therein provided, and it is
incumbent upon the state that, if legally tenable, such desire be given effect
independent of the attitude of the parties affected thereby" (Resolution, Vda.
de Precilla vs. Narciso, L-27200, August 18, 1972, 46 SCRA 538, 565).
To give effect to the intention and wishes of the testatrix is the first and
principal law in the matter of testaments (Dizon-Rivera vs. Dizon, L-24561,
June 30, 1970, 33 SCRA 554, 561). Testacy is preferable to intestacy. An
interpretation that will render a testamentary disposition operative takes
precedence over a construction that will nullify a provision of the will (Arts.
788 and 791, Civil Code).
Testacy is favored. Doubts are resolved in favor of testacy especially where
the will evinces an intention on the part of the testator to dispose of
practically his whole estate. So compelling is the principle that intestacy
should be avoided and that the wishes of the testator should prevail that
sometimes the language of the will can be varied for the purpose of giving it
effect (Austria vs. Reyes, L-23079, February 27, 1970, 31 SCRA 754, 762).
As far as is legally possible, the expressed desire of the testator must be
followed and the dispositions of the properties in his will should be upheld
(Estorque vs. Estorque, L-19573, June 30, 1970, 33 SCRA 540, 546).
Page 25 of 29
The law has a tender regard for the wishes of the testator as expressed in his
will because any disposition therein is better than that which the law can
make (Castro vs. Bustos, L-25913, February 28, 1969, 27 SCRA 327, 341).

Two other errors of the lower court may be noticed. It erred in issuing a
notice to creditors although no executor or regular administrator has been
appointed. The record reveals that it appointed a special administrator. A
notice to creditors is not in order if only a special administrator has been
appointed. Section 1, Rule 86 of the Rules of Court, in providing that
"immediately after granting letters of testamentary or of administration, the
court shall issue a notice requiring all persons having money claims against
the decedent to file them in the office of the clerk of said court" clearly
contemplates the appointment of an executor or regular administrator and
not that of a special administrator.

It is the executor or regular administrator who is supposed to oppose the

claims against the estate and to pay such claims when duly allowed (See.
10, Rule 86 and sec. 1, Rule 88, Rules of Court).

We also take this occasion to point out that the probate court's appointment
of its branch clerk of court as special administrator (p. 30, Rollo) is not a
salutary practice because it might engender the suspicion that the probate
Judge and his clerk of court are in cahoots in milking the decedent's estate.
Should the branch clerk of court commit any abuse or devastavit in the
course of his administration, the probate Judge might find it difficult to hold
him to a strict accountability. A court employee should devote his official time
to his official duties and should not have as a sideline the administration of a
decedent's estate.

WHEREFORE, the lower court's orders of February 28, and June 29, 1974
are set aside and its order of June 18, 1973, setting for hearing the petition
for probate, is affirmed. The lower court is directed to conduct further
proceedings in Special Case No. 1808 in consonance with this opinion.
Costs, against the private respondents.

SO ORDERED.

Succession- Assignment No. 7 Page 26 of 29

[8] G.R. No. L-57848 June 19, 1982
RAFAEL E. MANINANG and SOLEDAD L. MANINANG, petitioners,
vs.COURT OF APPEALS, HON. RICARDO L. PRONOVE, JR., as Judge of
the Court of First Instance of Rizal and BERNARDO S.
ASENETA, respondents.
Civil Law; Wills and Succession; Probate; Probate of a will is
mandatory; Reason.—Generally, the probate of a Will is mandatory. 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.
Same; Same; Same; Probate of will does not look into its intrinsic validity.—
Normally, the probate of a will does not look into its intrinsic validity. “x x x The
authentication of a will decides no other question than such as touch upon the
capacity of the testator and the compliance with those requisites or solemnities which
the law prescribes for the validity of wills. It does not determine nor even by
implication prejudge the validity or efficiency (sic) of the provisions, these may be
impugned as being vicious or null, notwithstanding its authentication. The questions
relating to these points remain entirely unaffected, and may be raised even after the
will has been authenticated x x x”
Same; Same; Preterition and disinheritance, distinguished.—“x x x 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.’ (Neri vs. Akutin, 72 Phil. 325).
Disinheritance, in turn, ‘is a testamentary disposition depriving any compulsory heir
of his share in the legitime for a cause authorized by law,’ (Justice J.B.L. Reyes and
R.C. Puno, ‘An Outline of Philippine Civil Law’, 1956 ed., Vol. III, p. 8, citing
cases) Disinheritance is always, ‘voluntary’, preterition, upon the other hand, is
presumed to be ‘involuntary’ (Sanchez Roman, Estudios de Derecho Civil 2nd
edition, Volumen 2.o, p. 1131).”
Same; Same; Same; Effects of preterition and disinheritance.—Preterition
under Article 854 of the New Civil Code ‘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 devices or legacies. In ineffective disinheritance under
Article 918 of the same Code, such disinheritance shall also ‘annul the institution of
heirs’, but only ‘insofar as it may prejudice the person disinherited’, which last
phrase was omitted in the case of preterition (III Tolentino, Civil Code of the
Philippines, 1961 Edition, p. 172). Better stated yet, in disinheritance the nullity is
limited to that portion of the estate of which the disinherited heirs have been illegally
deprived.”
Same; Same; Will should not be denied legality based on dubious grounds.—
As held in the case of Vda. de Precilla vs. Narciso, “x x x it is as important a matter
of public interest that a purported will is not denied legalization on dubious grounds.
Otherwise, the very institution of testamentary succession will be shaken to its
foundation, x x x”
Succession- Assignment No. 7
Same; Remedial Law; Special Civil Action; Certiorari; Act done by a probate
court in excess of its jurisdiction correctible by certiorari; Certiorari available
where appeal not a speedy remedy.—Coming now to the procedural aspect, suffice it
to state that in view of our finding that respondent Judge had acted in excess of his
jurisdiction in dismissing the Testate Case, Certiorari is a proper remedy. An act
done by a Probate Court in excess of its jurisdiction may be corrected by Certiorari.
And even assuming the existence of the remedy of appeal, we harken to the rule that
in the broader interests of justice, a petition for Certiorari may be entertained,
particularly where appeal would not afford speedy and adequate relief.
MELENCIO-HERRERA, J.:
A Petition to Review the Decision of April 28, 1981 of respondent Appellate
Court in CA-G.R. No. 12032-R entitled "Rafael E. Maninang and Soledad L.
Maninang vs. Hon. Ricardo Pronove, Judge of the Court of First Instance of
Rizal, Pasig, Branch XI, and Bernardo S. Aseneta".
Pertinent to the controversy are the following antecedental facts:
On May 21, 1977, Clemencia Aseneta, single, died at the Manila Sanitarium
Hospital at age 81. She left a holographic will, the pertinent portions of which
are quoted hereunder:
xxx xxx xxx
It is my will that all my real properties located in Manila, Makati, Quezon City,
Albay and Legaspi City and all my personal properties shagllbe inherited
upon my death by Dra. Soledad L. Maninang with whose family I have lived
continuously for around the last 30 years now. Dra. Maninang and her
husband Pamping have been kind to me. ... I have found peace and
happiness with them even during the time when my sisters were still alive
and especially now when I am now being troubled by my nephew Bernardo
and niece Salvacion. I am not incompetent as Nonoy would like me to
appear. I know what is right and wrong. I can decide for myself. I do not
consider Nonoy as my adopted son. He has made me do things against my
will.
xxx xxx xxx
On June 9, 1977, petitioner Soledad Maninang filed a Petition for probate of
the Will of the decedent with the Court of First Instance-Branch IV, Quezon
City (Sp. Proc. No. Q-23304, hereinafter referred to as the Testate Case).
Page 27 of 29
On July 25, 1977, herein respondent Bernardo Aseneta, who, as the adopted
son, claims to be the sole heir of decedent Clemencia Aseneta, instituted
intestate proceedings with the Court of First Instance-Branch XI, Pasig, Rizal
(Sp. Proc. No. 8569, called hereinafter the Intestate Case" for brevity).
On December 23, 1977, the Testate and Intestate Cases were ordered
consolidated before Branch XI, presided by respondent Judge.
Respondent Bernardo then filed a Motion to Dismiss the Testate Case on the
ground that the holographic will was null and void because he, as the only
compulsory heir, was preterited and, therefore, intestacy should ensue. In
support of said Motion to Dismiss, respondent Bernardo cited the cases of
Neri vs. Akutin (72 Phil. 322); Nuguid vs. Nuguid (17 SCRA 449), and Ramos
vs. Baldovino (2 CA Rep. 2nd, 878). 1
In her Opposition to said Motion to Dismiss, petitioner Soledad averred that it
is still the rule that in a case for 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;
and that respondent Bernardo was effectively disinherited by the decedent. 2
On September 8, 1980, the lower Court ordered the dismissal of the Testate
Case in this wise:
For reasons stated in the motion to dismiss filed by petitioner Bernardo S.
Aseneta which the Court finds meritorious, the petition for probate of will filed
by Soledad L. Maninang and which was docketed as Sp. Proc. No. Q-23304
is DISMISSED, without pronouncement as to costs.
On December 19, 1980, the lower Court denied reconsideration for lack of
merit and in the same Order appointed Bernardo as the administrator of the
intestate estate of the deceased Clemencia Aseneta "considering that he is a
forced heir of said deceased while oppositor Soledad Maninang is not, and
considering further that Bernardo Aseneta has not been shown to be unfit to
perform the duties of the trust. "
Petitioners Maninang resorted to a certiorari Petition before respondent Court
of Appeals alleging that the lower Court exceeded its jurisdiction in issuing
the Orders of dismissal of the Testate Case (September 8, 1980) and denial
of reconsideration (December 19, 1980).
On April 28, 1981, respondent Court 3 denied certiorari and ruled that the
trial Judge's Order of dismissal was final in nature as it finally disposed of the
Succession- Assignment No. 7
Testate Case and, therefore, appeal was the proper remedy, which
petitioners failed to avail of. Continuing, it said that even granting that the
lower Court committed errors in issuing the questioned Orders, those are
errors of judgment reviewable only by appeal and not by Certiorari. 'Thus,
this Petition before us.
We find that the Court a quo a quo acted in excess of its jurisdiction when it
dismissed the Testate Case. Generally, the probate of a Will is mandatory.
No will shall pass either real or personal property unless it is proved and
allowed in accordance with the Rules of Court. 4
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. 5
Normally, the probate of a Will does not look into its intrinsic validity.
... The authentication of a will decides no other question than such as touch
upon the capacity of the testator and the compliance with those requisites or
solemnities which the law prescribes for the validity of wills. It does not
determine nor even by implication prejudge the validity or efficiency (sic) of
the provisions, these may be impugned as being vicious or null,
notwithstanding its authentication. The que0stions relating to these points
remain entirely unaffected, and may be raised even after the will has been
authenticated .... 6
Opposition to the intrinsic validity or legality of the provisions of the will
cannot be entertained in Probate proceeding because its only purpose is
merely to determine if the will has been executed in accordance with the
requirements of the law. 7
Respondent Bernardo, however, relies on the pronouncement in Nuguid vs.
Nuguid 8, reading:
In a proceeding 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 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
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demand that the intrinsic validity of the will be passed upon, even before it is
probated, the Court should meet that issue. (Emphasis supplied)
Our ruling in Balanay vs. Hon. Martinez 9 had a similar thrust:
The trial court acted correctly in passing upon the will's intrinsic validity even
before its formal validity had been established. The probate of a will might
become an Idle ceremony if on its face it appears to be intrinsically void.
Where practical considerations demand that the intrinsic validity of the will be
passed upon, even before it is probated, the court should meet the issue.
The Nuguid and the Balanay cases provide the exception rather than the
rule. The intrinsic validity of the Wills in those cases was passed upon even
before probate because "practical considerations" so demanded. Moreover,
for the parties in the Nuguid case, the "meat of the controversy" was the
intrinsic validity of the Will; in fact, the parties in that case "shunted aside the
question of whether or not the Will should be allowed probate." Not so in the
case before us now where the probate of the Will is insisted on by petitioners
and a resolution on the extrinsic validity of the Will demanded.
Moreover, in the Nuguid case, this Court ruled that the Will was intrinsically
invalid as it completely preterited the parents of the testator. In the instant
case, a crucial issue that calls for resolution is whether under the terms of the
decedent's Will, private respondent had been preterited or disinherited, and if
the latter, whether it was a valid disinheritance. Preterition and disinheritance
are two diverse concepts.
... 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."
(Neri vs. Akutin, 72 Phil. 325). Disinheritance, in turn, "is a testamentary
disposition depriving any compulsory heirs of his share in the legitimate for a
cause authorized by law." (Justice J.B.L. Reyes and R.C. Puno, "An Outline
of Philippine Civil Law", 1956 ed., Vol. III, p. 8, citing cases) Disinheritance is
always "voluntary", preterition upon the other hand, is presumed to be
"involuntary" (Sanchez Roman, Estudios de Derecho Civil 2nd edition,
Volume 2.o p. 1131). 10
The effects of preterition and disinheritance are also totally different.
... The effects flowing from preterition are totally different from those of
disinheritance. Pretention under Article 854 of the New Civil Code shall annul
Succession- Assignment No. 7
the institution of heir. This annulment is in toto, unless in the wail 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", but only "insofar as it
may prejudice the person disinherited", which last phrase was omitted in the
case of preterition (III Tolentino, Civil Code of the Philippines, 1961 Edition,
p. 172). Better stated yet, in disinheritance the nullity is limited to that portion
of the estate of which the disinherited heirs have been illegally deprived. 11
By virtue of the dismissal of the Testate Case, the determination of that
controversial issue has not been thoroughly considered. We gather from the
assailed Order of the trial Court that its conclusion was that respondent
Bernardo has been preterited We are of opinion, however, that from the face
of the Will, that conclusion is not indubitable.
As held in the case of Vda. de Precilla vs. Narciso 12
... it is as important a matter of public interest that a purported will is not
denied legalization on dubious grounds. Otherwise, the very institution of
testamentary succession will be shaken to its foundation, ...
Coming now to the procedural aspect, suffice it to state that in view of our
finding that respondent Judge had acted in excess of his jurisdiction in
dismissing the Testate Case, certiorari is a proper remedy. An act done by a
Probate Court in excess of its jurisdiction may be corrected
by Certiorari. 13 And even assuming the existence of the remedy of appeal,
we harken to the rule that in the broader interests of justice, a petition for
certiorari may be entertained, particularly where appeal would not afford
speedy and adequate relief.
WHEREFORE, the Decision in question is set aside and the Orders of the
Court of First Instance-Branch XI, Rizal, dated September 8, 1980 and
December 19, 1980, are nullified. Special Proceeding No. Q-23304 is hereby
remanded to said Court of First Instance-Branch XI. Rizal, therein to be
reinstated and consolidated with Special Proceeding No. 8569 for further
proceedings.
No pronouncement as to costs.
SO ORDERED.
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