G.R. No.
76648 February 26, 1988 conformity of all the relatives and heirs of the testatrix except oppositor, the
THE HEIRS OF THE LATE MATILDE MONTINOLA-SANSON,
petitioners,
vs.
COURT OF APPEALS and EDUARDO F. HERNANDEZ, respondents.
GANCAYCO, J.:
This is a petition for review on certiorari of the decision of the Court of
Appeals 1 promulgated August 29,1986 affirming in toto the decision of the
Regional Trial Court of Manila, Branch XXII 2 dated March 21, 1985, the
dispositive part of which reads:
WHEREFORE, the Court renders judgment declaring the holographic will
marked in evidence as Exhibit "H" as one wholly written, dated, and signed
freely by the late Herminia Montinola in accordance with law while in
possession of full testamentary capacity, and allowing and admitting the
same to probate.
Upon the finality of the decision, let letters testamentary issue to the
executor, Eduardo F. Hernandez, as well as the certificate of probate
prescribed under Section 13 of Rule 76 of the Rules of Court.
SO ORDERED. 3
This case arose from a petition filed by private respondent Atty. Eduardo F.
Hernandez on April 22, 1981 with the Court of First Instance of Manila
(now Regional Trial Court) seeking the probate of the holographic will of
the late Herminia Montinola executed on January 28, 1980. 4 The testatrix,
who died single, parentless and childless on March 29,1981 at the age of 70
years, devised in this will several of her real properties to specified persons.
On April 29,1981, private respondent who was named executor in the will
filed an urgent motion for appointment of special administrator. 5 With the
court in its order of May 5, 1981 6 appointed private respondent as Special
Administrator of the testate estate of deceased.
On June 29,1981, Matilde Montinola Sanson (petitioner), the only surviving
sister of the deceased but who was not named in the said win, filed her
Opposition to Probate of Will, 7 alleging inter alia: that the subject will was
not entirely written, dated and signed by the testatrix herself and the same
was falsely dated or antedated; that the testatrix was not in full possession
of her mental faculties to make testamentary dispositions; that undue
influence was exerted upon the person and mind of the testatrix by the
beneficiaries named in the win; and that the will failed to institute a residual
heir to the remainder of the estate.
After a hearing on the merits, the probate court, finding the evidence
presented in support of the petition to be conclusive and overwhelming,
rendered its decision allowing the probate of the disputed will.
Petitioner thus appealed the decision of the probate court to the Court of
Appeals which affirmed in toto the decision. 8
On September 24,1986, petitioner filed with the respondent court a motion
for new trial. 9 Attached to her motion was the Affidavit of Merit of
Gregorio Montinola Sanson, petitioner's son, alleging that witnesses have
been located whose testimonies could shed light as to the ill health of the
testatrix as well as undue influence exerted on the latter.
The appellate court in its resolution of October 13, 1986, 10 denied the
motion for new trial of petitioner on the following grounds: (1) the Affidavit
of merit attached to the motion alleged that efforts were exerted to locate
unnamed witnesses only after the court's decision was handed down, and (2)
the unnamed witnesses would allegedly shed light on the fact of grave
illness of the testatrix as well as the undue influence exerted on her which
are merely corroborative or cumulative since these facts were brought to
light during the trial.
The motion for reconsideration of petitioner dated October 27, 1986 11 was
likewise denied by the appellate court in its resolution of November 20,
1986 12 on the ground that the affidavit of one Patricia Delgado submitted
with the motion constitutes cumulative evidence and the motion being in
reality a second motion for reconsideration which is prescribed by law.
In the petition now before Us, petitioner assigned the following errors:
I WILL IN QUESTION TO PROBATE.
THE RESPONDENT COURT OF APPEALS ERRED IN DENYING
PETITIONERS' MOTION FOR NEW TRIAL ON THE GROUND THAT
THE EVIDENCE SOUGHT TO BE PRESENTED IS MERELY
CUMULATIVE.
II
THE SAID COURT ERRED IN DENYING PETITIONERS' MOTION
FOR RECONSIDERATION OF THE RESOLUTION DENYING THE
AFORESAID MOTION FOR NEW TRIAL.
III
AT ANY RATE, THE SAID COURT ERRED IN HOLDING THAT THE
HOLOGRAPHIC WILL IN QUESTION WAS WHOLLY WRITTEN,
DATED AND SIGNED BY THE LATE HERMINIA MONTINOLA.
IV
THE SAID COURT ERRED IN NOT FINDING THAT THE ALLEGED
WILL WAS FRAUDULENTLY ANTEDATED TO CONCEAL ITS
ACTUAL DATE OF EXECUTION AND TO SHIELD IT FROM
PROBABLE DISPUTES AS TO THE TESTAMENTARY CAPACITY
ON THE PART OF THE ALLEGED TESTATRIX AT THE TIME OF ITS
ACTUAL EXECUTION.
V
THE SAID COURT ERRED IN HOLDING THAT THE LATE
HERMINIA MONTINOLA WAS NOT SUBJECTED TO UNDUE
PRESSURE AND IMPROPERIMPORTUNINGS ON THE PART OF
THOSE STANDING TO BENEFIT FROM THE ALLEGED WILL.
VI
THE SAID COURT ERRED IN ALLOWING THE HOLOGRAPHIC
In the meantime, petitioner who passed away on November 3, 1986, was
substituted by her heirs.
In the first and second assigned errors, petitioners maintain that the
appellate court erred in denying the motion for new trial insisting that the
new evidence sought to be presented is not merely corroborative or
cumulative.
On the other hand, the contention of private respondent is that the motion
for new trial was a pro-forma motion because it was not in accordance with
Sec. 1, Rule 53 of the Rules of Court. We find merit in this contention.
Section 1, Rule 53 provides —
Before a final order or judgment rendered by the Court of appeals becomes
executory, a motion for new trial may be filed on the ground of newly
discovered evidence which could not have been discovered prior to the trial
in the court below by the exercise of the diligence and which is of such a
character as would probably change the result. The motion shall be
accompanied by affidavits showing the facts constituting the grounds
therefor and the newly discovered evidence.
The affidavit of merit executed by Gregorio Montinola Sanson alleged the
following:
xxx xxx xxx
3. That in her plea for new trial in the said case, I have exerted efforts to
locate witnesses whose whereabouts were not known to us during the trial
in the lower court, but I have finally succeeded in tracking them down;
4. That despite their initial reluctance to testify in this case,I am convinced
that they would testify under proper subpoena for purposes of shedding
light on the fact that the testatrix was gravely ill at or but the time that the
questioned will was allegedly executed;
5. That they had the clear opportunity to know the circumstances under
which the purported will was executed; and that they know for a fact that
there was 'undue influence' exerted by petitioner and other relatives to
procure improper favors from the testatrix;
xxx xxx xxx 13
Said motion for new trial is not in substantial compliance with the
requirements of Rule 53. The lone affidavit of a witness who was already
presented said the hearing is hardly sufficient to justify the holding of new
trial. The alleged new witnesses were unnamed without any certainty as, to
their appearance before the court to testify. Affiant attests only on his belief
that they would testify if and when they are subpoenaed by the court.
Furthermore, the allegations in the affidavit as to the undue influence
exerted on the testatrix are mere conclusions and not statement of facts. The
requisite affidavits must state facts and not mere conclusions or opinions,
otherwise they are not valid. 14 The affidavits are required to avoid waste of
the court's time if the newly discovered evidence turns out to be immaterial
or of any evidentiary weight.
Moreover, it could not be said that the evidence sought to be presented is
new having been discovered only after the trial. It is apparent from the
allegations of affiant that efforts to locate the witnesses were exerted only
after the decision of the appellate court was handed down. The trial lasted
for about four years so that petitioner had ample time to find said alleged
witnesses who were admittedly known to her. The evidence which the
petitioner now propose to present could have been discovered and presented
during the hearing of the case, and there is no sufficient reason for
concluding that had the petitioner exercised proper diligence she would not
have been able to discover said evidence. 15
In addition, We agree with the appellate court that since the alleged illness
of the testatrix as well as the charges of undue influence exerted upon her
had been brought to light during the trial, and new evidence on this point is
merely corroborative and cumulative which is generally not a ground for
new trial. 16 Accordingly, such evidence even if presented win not carry
much probative weight which can alter the judgment. 17
It is very patent that the motion for new trial was filed by petitioner only for
the purpose of delaying the proceedings. In fact, petitioners son in his
manifestation admitted that he had to request a new law firm to do
everything legally possible to meet the deadline for the filing of a motion
for reconsideration and/or for new trial. 18 This would explain the
haphazard preparation of the motion, thus failing to comply with the
requirements of rule 53, which was filed on the last day of the reglementary
period of appeal so that the veracity of the ground relied upon is
questionable. The appellate court correctly denied the motion for new trial.
The motion for new trial being pro-forma, it does not interrupt the running
of the period for appeal. 19 Since petitioner's motion was filed on
September 24,1986, the fifteenth or last day of the period to appeal, the
decision of the respondent court became final on the following day,
September 25. And when the motion for reconsideration of petitioner was
filed on October 30,1986, it was obviously filed out of time.
Since the questioned decision has already become final and executory, it is
no longer within the province of this Court to review it. This being so, the
findings of the probate court as to the due execution of the will and the
testamentary capacity of testatrix are now conclusive. 20
At any rate, even assuming that We can still review this case on its merits,
the petition will also have to fail.
During the hearing before the probate court, not only were three (3) close
relatives of the testatrix presented but also two (2) expert witnesses who
declared that the contested will and signature are in the handwriting of the
testatrix. These testimonies more than satisfy the requirements of Art. 811
of the Civil Code 21 in conjunction with Section 11 of Rule 76, Revised
Rules of Court, 22 or the probate of holographic wills.
As regards the alleged antedating of the will, petitioner failed to present
competent proof that the will was actually executed sometime in June 1980
when the testatrix was already seriously ill and dying of terminal lung
cancer. She relied only on the supposed inconsistencies in the testimony of
Asuncion Gemperle, niece and constant companion of testatrix, which upon
careful examination did not prove such claim of antedating.
The factual findings of the probate court and the Court of Appeals that the
will in question was executed according to the formalities required by law
are conclusive on the Supreme Court when supported by evidence. 23 We
have examined the records of this case and find no error in the conclusion
arrived at by the respondent court that the contested will was duly executed
in accordance with law.
Petitioner alleges that her exclusion from the alleged holographic will was
without rhyme or reason, being the only surviving sister of the testatrix with
whom she shares an intimate relationship, thus demonstrating the lack of
testamentary capacity of testatrix.
In the case of Pecson v. Coronel, 24 it was held —
The appellants emphasize the fact that family ties in this country are very
strongly knit and that the exclusion of a relative from one's estate is an
exceptional case. It is true that the ties of relationship in the Philippines are
very strong, but we understand that cases of preterition of relatives from the
inheritance are not rare. The liberty to dispose of one's estate by will when
there are no forced heirs is rendered sacred by the Civil Code in force in the
Philippines since 1889...
Article 842 of the Civil Code provides that one who has no compulsory
heirs may dispose by will of all his estate or any part of it in favor of any
person having capacity to succeed.
It is within the right of the testatrix not to include her only sister who is not
a compulsory heir in her will. Nevertheless, per testimony of Asuncion
Gemperle, the latter had reserved two boxes of jewelry worth P850,000.00
for petitioner. Furthermore, petitioner's son Francis was instituted as an heir
in the contested will.
Petitioner still insists that the fact that in her holographic will the testatrix
failed to dispose of all of her estate is an indication of the unsoundness of
her mind.
We cannot subscribe to this contention. Art. 841 of the Civil Code provides
—
A will shall be valid even though it should not contain an institution of an
heir, or such institution should not comprise the entire estate, and even
though the person so instituted should not accept the inheritance or should
be incapacitated to succeed.
In such cases, the testamentary dispositions made in accordance with law
shall be complied with and the remainder of the estate shall pass to the legal
heirs.
Thus, the fact that in her holographic will, testatrix disposed of only eleven
(11) of her real properties does not invalidate the will, or is it an indication
that the testatrix was of unsound mind. The portion of the estate undisposed
of shall pass on to the heirs of the deceased in intestate succession.
Neither is undue influence present just because blood relatives, other than
compulsory heirs have been omitted, for while blood ties are strong in the
Philippines, it is the testator's right to disregard non-compulsory heirs. 25
The fact that some heirs are more favored than others is proof of neither
fraud or undue influence. 26 Diversity of apportionment is the usual reason
for making a testament, otherwise, the decedent might as well die intestate. SO ORDERED.
27

The contention of the petitioner that the will was obtained by undue
influence or improper pressure exerted by the beneficiaries of the will
cannot be sustained on mere conjecture or suspicion; as it is not enough that
there was opportunity to exercise undue influence or a possibility that it
may have been exercised. 28 The exercise of improper pressure and undue
influence must be supported by substantial evidence that it was actually
exercised. 29

Finally, We quote with approval the observation of the respondent court —

There is likewise no question as to the due execution of the subject Will. To

Our minds, the most authentic proof that decreased had testamentary
capacity at the time of the execution of the Will, is the Will itself which
according to a report of one of the two expert witnesses (Exhibits X to X-3)
reveals the existence of significant handwriting characteristics such as:

1. Spontaneity, freedom, and speed of writing

xxx xxx xxx

3. good line quality.

4. presence of natural variation... (Exhibit X).

The characteristics of spontaneity, freedom and good line quality could not
be achieved by the testatrix if it was true that she was indeed of unsound
mind and/or under undue influence or improper pressure when she the Will.

IN VIEW OF THE FOREGOING CONSIDERATIONS, the petition is

DENIED for lack of merit with costs against petitioner. The decision of
respondent court dated August 29, 1986 in toto the decision of the Regional
Trial Court of Manila dated March 21, 1985 is hereby declared to be
immediately executory.
G.R. No. 191031, October 05, 2015
DOLORES L. HACBANG AND BERNARDO J. HACBANG,
Petitioners, v. ATTY. BASILIO H. ALO, Respondent.
DECISION
BRION, J.:*
This petition for review on certiorari seeks to reverse the 13 October 2009
Decision and the 21 January 2010 resolution of the Court of Appeals (CA)
in CA-G.R CV No. 83137.1 The CA affirmed the Quezon City Regional
Trial Court's (RTC) dismissal of the petitioners' complaint in Civil Case No.
Q 99-366602 for lack of cause of action.
ANTECEDENTS
On 3 April 1937, Bishop Sofronio Hacbang (Bishop Sofronio) died leaving
several properties behind. Among these was Lot No. 8-A of subdivision
Plan Psd-6227 located at España Street, San Juan, Rizal,3 covered by
Transfer Certificate of Title (TCT) No. (19896) 227644 (the subject lot).
Bishop Sofronio was survived by his parents, Basilio and Maria Hacbang,
and his siblings: Perfecto Hacbang, Joaquin Hacbang, Lucia Teresita
Hacbang, and Dolores Hacbang Alo. Petitioner Dolores L. Hacbang is the
grandchild of Perfecto while petitioner Bernardo Hacbang (Bernardo) is a
son of Joaquin. The respondent Basilio Alo is the son of Dolores.
Bishop Sofronio left a will denominated as Ultima Voluntad y Testamento.
He left one-half of his properties to his parents and devised the other half -
including the subject lot - to his sister Dolores. The pertinent portions of his
will read:cralawlawlibrary
FOURTH: By these presents I give, name, declare and institute as heirs my
parents BASILIO HACBANG and MARIA GABORNY DE HACBANG of
one-half of all my properties, whether real, personal or mixed, in whatever
place they may be found, whether they were acquired before or after the
execution of this testament, including all the properties that at the time of
my death I may have the power to dispose of by will, and which properties
consist of the following:chanRoblesvirtualLawlibrary
Fifty (50) percent of the shares of stock that I own in the "SAMAR
NAVIGATION CO. INC."
A parcel of land with its camarin situated in the Municipality of Carigara,
Province of Leyte.
A parcel of land in the Barrio of Pinamopuan, of the Municipality of
Capoocan, Province of Leyte.
A parcel of land with house and planted to coconuts in the Barrio of
Sorsogon, Municipality of Sta. Margarita, Province of Samar.
FIFTH: The other remaining half of my properties wherever they may
be located, by these presents I give, cede and hand over to my sister
Dolores Hacbang, which properties are more particularly described as
follows:chanRoblesvirtualLawlibrary
Fifty (50) percent of my stockholdings in the "SAMAR NAVIGATION
CO. INC."
A piece of land with one house where the Botica San Antonio is located, in
the Municipality of Calbayog, Province of Samar.
A piece of land with house in Acedillo St., Municipality of Calbayog,
Province of Samar.
A piece of land with 1 camarin in the barrio of Sorsogon, Municipality of
Sta. Margarita, Province of Samar.
Six (6) Parcels of land located in "NEW MANILA," Municipality of San
Juan, Province of Rizal, in 7th St., described as follows: Block 7, Lots 16,
18, 20 and 22, and in 3rd Street, Block 3, Lots 4 and 6.
A piece of land situated in Espana St., Municipality of San Juan del
Monte of the Province of Rizal, marked as Lot 8-A, Block 17, of 1,403
square meters in area.4chanrobleslaw
On 16 April 1937, a petition for the probate of Bishop Sofronio's will and
the settlement of his estate was filed before the then Court of First Instance
(CFI) of Manila. The petition was docketed as SP. PROC. No. 51199.
On 21 May 1937, the CFI admitted Bishop Sofronio's will to probate.5
The records are bare with respect to what happened next. They show,
however, that the CFI ordered the proceedings to be archived on 2
November 1957.
On 24 September 1971, the Register of Deeds of Quezon City appears to
have issued TCT No. 169342 over the subject lot in the name of respondent
Basilio H. Alo. TCT No. 169342 cancelled TCT No. 117322/T-500.
However, this Court cannot determine the circumstances surrounding the
issuance of TCT No. 169342 or the relationship between TCT No.
117322/T-500 and TCT No. (19896) 227644 due to the inadequacy of the
documents on record.
On 17 March 1975, Dolores Hacbang Alo moved to revive the settlement
proceedings because the CFI had not yet completed adjudicating the
properties.
On 23 May 1975, the CFI denied the motion for revival because the order to
archive "had long become final and executory." 6
On 1 February 1999, petitioners Dolores L. Hacbang and Bernardo filed a
petition to cancel TCT No. 169342 on the ground that it was fraudulently
secured. In support of their allegations, they submitted the 5 March 1997
Investigation Report of Land Registration Authority (LRA) Investigator
Rodrigo I. Del Rosario. The report concluded that TCT No. 117322 was of
"doubtful authenticity" and was neither derived from TCT No. 117322 nor
issued by the Registry of Deeds of Quezon City on 24 September 1971 at
2:30 PM.
In his Answer dated 18 August 1999, Basilio denied all allegations of
irregularity and wrongdoing. He also moved to dismiss the petition because
the petitioners were neither heirs nor devisees of Bishop Sofronio and had
no legal interest in the subject lot.
On 7 January 2003, the RTC dismissed the petition because the petitioners
had no right to prosecute the case on the subject lot. The RTC noted that
Bishop Sofronio's will had already been admitted into probate in 1937; thus,
the intrinsic validity of the will is no longer in question. Though the
settlement proceedings were archived, Bishop Sofronio already designated
his heirs: Bishop Sofronio's parents were compulsory heirs entitled to half
of his estate while the respondent's mother, Dolores Hacbang Alo, was
devised the remaining half (the free portion). Thus, the petitioners, who are
neither compulsory nor testamentary heirs, are not real parties in interest.
The petitioners moved for reconsideration which the RTC denied on 19
August 2003.
The petitioners appealed to the CA, arguing that: (1) Bishop Sofronio's will
did not validly transfer the subject property to Dolores Hacbang Alo; (2) the
probate of the will is not conclusive as to the validity of its intrinsic
provisions; and (3) only a final decree of distribution of the estate vests title
on the properties from the estate on the distributees.7 The appeal was
docketed as CA-G.R CV No. 83137.
They further argued that the distribution of the estate should be governed by
intestate succession because: (1) the subject property was not adjudicated;
and (2) the settlement proceedings were archived and dismissed. Thus, all
the properties passed on to and became part of the estate of Bishop Sofronio's will as basis to declare that they are not real parties in interest.
Sofronio's parents. The petitioners concluded that they had legal interest in
the subject lot as representatives of their ascendants, the other children of In his Comment, the respondent maintained that the petitioners had no right
Bishop Sofronio's parents. over the property and moved to dismiss the present petition.

In his appeal brief, the respondent insisted that the petitioners do not have a OUR RULING
clear legal right to maintain the suit because: (1) as collateral relatives, they
cannot invoke the right of representation to the estate of Bishop Sofronio;
At the outset, this Court observes that the parties and even the lower courts
and (2) they are not real parties in interest and have no right of action over
erroneously applied the provisions of the present Civil Code to the will and
the subject lot.
the estate of Bishop Sofronio. The law in force at the time of the decedent's
death determines the applicable law over the settlement of his estate. 8
On 13 October 2009, the CA affirmed the RTC's order of dismissal. The CA
Bishop Sofronio died in 1937 before the enactment of the Civil Code in
held that the admission of Bishop Sofronio's will to probate precluded
1949. Therefore, the correct applicable laws to the settlement of his estate
intestate succession unless the will was intrinsically invalid or failed to
are the 1889 Spanish Civil Code and the 1901 Code of Civil Procedure.
completely dispose of his estate. Contrary to the petitioners' contention, the
settlement proceedings were not dismissed but archived; the will did not
In any case, under both the Spanish Code and our Civil Code, successional
lose its validity merely because the proceedings were archived.
rights are vested at the precise moment of the death of the decedent. Section
Undoubtedly, Bishop Sofronio did not die intestate.
657 of the Spanish code provides:cralawlawlibrary
The CA denied the petitioners' claim to a right of inheritance by Art. 657. Los derechos a la sucesion de una persona se transmiten desde el
representation. It held that the presence of Bishop Sofronio's parents during momento de su muerte.9chanrobleslaw
his death excluded his brothers and sisters from being compulsory heirs; the
petitioners cannot represent those who are hot entitled to succeed.
Considering that they are neither compulsory nor testamentary heirs, The inheritance vests immediately upon the decedent's death without a
petitioners have no legal interest in the subject property. moment's interruption. This provision was later on translated and adopted as
Article 777 of our Civil Code. 10
The petitioners moved for reconsideration which the CA denied on 21
January 2010. The denial paved the way for the petitioners to file the As a consequence of this principle, ownership over the inheritance passes to
present petition for review on certiorari. the heirs at the precise moment of death - not at the time the heirs are
declared, nor at the time of the partition, nor at the distribution of the
THE PETITION properties. There is no interruption between the end of the decedent's
ownership and the start of the heir/legatee/devisee's ownership.
The petitioners argue: (1) that the CA erred when it failed to rule on the
For intestate heirs, this means that they are immediately entitled to their
validity of TCT No. 169342; (2) that the probate proceedings of the estate
hereditary shares in the estate even though they may not be entitled to any
was dismissed, not archived; and (3) that the CA erred when it used Bishop
particular properties yet. For legatees and devisees granted specific
properties, this means that they acquire ownership over the legacies and
devises at that immediate moment without prejudice to the legitimes of
compulsory heirs.
Undoubtedly, Bishop Sofronio did not die intestate. He left a will that was
probated in 1937. He left half of his properties to his parents and the
remaining half to his sister Dolores Hacbang Alo. The admission of his will
to probate is conclusive with respect to its due execution and extrinsic
validity.11
Unfortunately, the settlement proceedings were never concluded; the case
was archived without any pronouncement as to the intrinsic validity of the
will or an adjudication of the properties. Because of this, the petitioners
posit that intestate succession should govern. They maintain that the entire
inheritance should have gone to Bishop Sofronio's parents, the petitioners'
ascendants. Thus, they claim to have a legal interest in the subject lot as
representatives of the other children of Bishop Sofronio's parents.
We do not find the petitioners' argument meritorious.
Our jurisdiction has always respected a decedent's freedom to dispose of his
estate, whether under the Spanish Civil Code or under the present Civil
Code. Article 763 of the Spanish Code provides:cralawlawlibrary
Art. 763. El que no tuviere herederos forzosos puede disponer por
testamento de todos sus bienes o de parte de ellos en favor de cualquiera
persona que tenga capacidad para adquirirlos. El que tuviere herederos
forzosos solo podra disponer de sus bienes en la forma y con las
limitaciones que se establecen en la section quinta de este
capitulo.chanrobleslaw
This provision states that a person without compulsory heirs may dispose of
his estate, either in part or in its entirety, in favor of anyone capacitated to
succeed him; if the testator has compulsory heirs, he can dispose of his
property provided he does not impair their legitimes. This provision was
later translated and adopted as Article 842 of our Civil Code. 12
Our jurisdiction accords great respect to the testator's freedom of
disposition. Hence, testate succession has always been preferred over
intestacy.13 As much as possible, a testator's will is treated and interpreted in
a way that would render all of its provisions operative. 14 Hence, there is no
basis to apply the provisions on intestacy when testate succession evidently
applies.
Even though the CFI archived the settlement proceedings, there is no
indication that it declared any of the dispositions in the will invalid. The
records are understandably bare considering the probate proceedings were
initiated as early as 1937. Nonetheless, we find no reason to doubt the
intrinsic validity of the will.
Bishop Sofronio was free to dispose of his estate without prejudice to the
legitimes of his compulsory heirs. Bishop Sofronio's only compulsory heirs
were his parents.15 Their legitime was one-half of Bishop Sofronio's
estate.16 Considering that Bishop Sofronio gave his parents half of his
estate, then he was free to dispose of the free portion of his estate in favor of
his sister, Dolores Hacbang Alo. Thus, his will was intrinsically valid.
The CFPs failure to adjudicate the specific properties is irrelevant because
Bishop Sofronio did not just name his heirs; he also identified the specific
properties forming part of their inheritance. The dispositions in the will
rendered court adjudication and distribution unnecessary.
The petitioners' contention that only a final decree of distribution of the
estate vests title to the land of the estate in the distributees is also incorrect.
Again, ownership over the inheritance vests upon the heirs, legatees, and
devisees immediately upon the death of the decedent.
At the precise moment of death, the heirs become owners of the estate pro-
indiviso. They become absolute owners of their undivided aliquot share but
with respect to the individual properties of the estate, they become co-
owners. This co-ownership remains until partition and distribution. Until
then, the individual heirs cannot claim any rights over a specific property
from the estate. This is because the heirs do not know which properties will
be adjudicated to them yet. Hence, there is a need for a partition before title
over particular properties vest in the distributee-heirs.
However, heirs, legatees, and devisees bequeathed specific properties do not
require Court adjudication to identify which particular properties become
theirs; the testator had already identified these. From the very moment of
the testator's death, title over these particular properties vests on the heir,
legatee, or devisee.
On 3 April 1937, title over the subject lot passed on to the respondent's
mother, Dolores Hacbang Alo, at the exact moment of her brother's death.
From that moment on, she was free to dispose of the subject lot as a
consequence of her ownership.
On the other hand, Bishop Sofronio's parents, Basilio and Maria Gaborny
Hacbang, never acquired the title over the subject lot. Thus, it never became
part of their estate. Clearly, the petitioners - who claim to represent the
children of Basilio and Maria Gaborny in the spouses' estate -have no legal
right or interest over the subject lot.
Every ordinary civil action must be based on a cause of action - an act or
omission that violates the rights of the plaintiff. 17 A cause of action
requires:chanRoblesvirtualLawlibrary
(1) a legal right in favor of the plaintiff;ChanRoblesVirtualawlibrary
(2) a correlative duty of the defendant to respect the plaintiffs right; and
(3) an act or omission of the defendant in violation of the plaintiffs right. 18
Every action must also be prosecuted or defended in the name of the real
party in interest: the party who stands to be benefited or injured by the
judgment.19 These fundamental requirements are not merely technical
matters; they go into the very substance of every suit.
The petitioners came to the courts praying for the annulment of the
respondent's title yet they failed to show that they are entitled to even ask
for such relief. They have no right over the subject lot and the respondent
has no legal obligation to them with respect to the subject lot. Even if we
assume that the respondent fraudulently or irregularly secured his certificate
of title, the bottom-line is that the petitioners have no legal standing to sue
for the cancellation of this title. This right only belongs to the rightful owner
of the subject lot.
Judicial power is the duty of the courts to settle actual controversies
involving rights which are legally demandable and enforceable.20 Courts
settle real legal disputes involving the rights and obligations between
parties. If either of the parties is not the real party in interest, the Court
cannot grant the reliefs prayed for because that party has no legal right or
duty with respect to his opponent. Further litigation becomes an academic
exercise in legal theory that eventually settles nothing - a waste of time that
could have been spent resolving actual justiciable controversies.
WHEREFORE, premises considered, the petition is DENIED for lack of
merit. Costs against the petitioners.
SO ORDERED.chanroblesvirtuallawlibrary
G.R. No. L-23079 February 27, 1970
RUBEN AUSTRIA, CONSUELO AUSTRIA-BENTA and LAURO
AUSTRIA MOZO, petitioners,
vs.
HON. ANDRES REYES, Judge, Court of First Instance of Rizal,
PERFECTO CRUZ, BENITA CRUZ-MENEZ ISAGANI CRUZ,
ALBERTO CRUZ and LUZ CRUZ-SALONGA respondents.
Salonga, Ordoñez, Yap, Sicat and Associates for petitioners.
Ruben Austria for himself and co-petitioners.
De los Santos, De los Santos and De los Santos for respondent Perfecto
Cruz.
Villareal, Almacen, Navarra and Amores for other respondents.
CASTRO, J.:
On July 7, 1956 Basilia Austria vda. de Cruz filed with the Court of First
Instance of Rizal (Special Proceedings 2457) a petition for probate, ante
mortem, of her last will and testament. The probate was opposed by the
present petitioners Ruben Austria, Consuelo Austria-Benta and Lauro
Austria Mozo, and still others who, like the petitioner, are nephews and
nieces of Basilia. This opposition was, however, dismissed and the probate
of the will allowed after due hearing.
The bulk of the estate of Basilia, admittedly, was destined under the will to
pass on to the respondents Perfecto Cruz, Benita Cruz-Meñez, Isagani Cruz,
Alberto Cruz, and Luz Cruz-Salonga, all of whom had been assumed and
declared by Basilia as her own legally adopted children.
On April 23, 1959, more than two years after her will was allowed to
probate, Basilia died. The respondent Perfecto Cruz was appointed executor
without bond by the same court in accordance with the provisions of the
decedent's will, notwithstanding the blocking attempt pursued by the
petitioner Ruben Austria.
Finally, on November 5, 1959, the present petitioners filed in the same
proceedings a petition in intervention for partition alleging in substance that
they are the nearest of kin of Basilia, and that the five respondents Perfecto
Cruz, et al., had not in fact been adopted by the decedent in accordance with
law, in effect rendering these respondents mere strangers to the decedent
and without any right to succeed as heirs.
Notwithstanding opposition by the respondent Perfecto Cruz, as executor of
the estate, the court a quo allowed the petitioners' intervention by its order
of December 22, 1959, couched in broad terms, as follows: "The Petition in
Intervention for Partition filed by the above-named oppositors [Ruben
Austria, et al.,] dated November 5, 1959 is hereby granted."
In the meantime, the contending sides debated the matter of authenticity or
lack of it of the several adoption papers produced and presented by the
respondents. On motion of the petitioners Ruben Austria, et al., these
documents were referred to the National Bureau of Investigation for
examination and advice. N.B.I. report seems to bear out the genuineness of
the documents, but the petitioners, evidently dissatisfied with the results,
managed to obtain a preliminary opinion from a Constabulary questioned-
document examiner whose views undermine the authenticity of the said
documents. The petitioners Ruben Austria, et al., thus moved the lower
court to refer the adoption papers to the Philippine Constabulary for further
study. The petitioners likewise located former personnel of the court which
appeared to have granted the questioned adoption, and obtained written
depositions from two of them denying any knowledge of the pertinent
adoption proceedings.
On February 6, 1963, more than three years after they were allowed to
intervene, the petitioners Ruben Austria, let al., moved the lower court to set
for hearing the matter of the genuineness of the adoption of the respondents
Perfecto Cruz, et al., by the late Basilia. Before the date set by the court for
hearing arrived, however, the respondent Benita Cruz-Meñez who entered
an appearance separately from that of her brother Perfecto Cruz, filed on
February 28, 1963 a motion asking the lower court, by way of alternative
relief, to confine the petitioners' intervention, should it be permitted, to
properties not disposed of in the will of the decedent.
On March 4, 1963, the lower court heard the respondent Benita's motion.
Both sides subsequently submitted their respective memoranda, and finally,
the lower court issued an order on June 4, 1963, delimiting the petitioners'
intervention to the properties of the deceased which were not disposed of in
the will.
The petitioners moved the lower court to reconsider this latest order,
eliciting thereby an opposition, from the respondents. On October 25, 1963
the same court denied the petitioners' motion for reconsideration.
A second motion for reconsideration which set off a long exchange of
memoranda from both sides, was summarily denied on April 21, 1964.
Hence this petition for certiorari, praying this Court to annul the orders of
June 4 and October 25, 1963 and the order of April 21, 1964, all restricting
petitioners' intervention to properties that were not included in the
decedent's testamentary dispositions.
The uncontested premises are clear. Two interests are locked in dispute over
the bulk of the estate of the deceased. Arrayed on one side are the
petitioners Ruben Austria, Consuelo Austria-Benta and Lauro Austria
Mozo, three of a number of nephews and nieces who are concededly the
nearest surviving blood relatives of the decedent. On the other side are the
respondents brothers and sisters, Perfecto Cruz, Benita Cruz-Meñez, Isagani
Cruz, Alberto Cruz and Luz Cruz-Salonga, all of whom heirs in the will of
the deceased Basilia, and all of whom claim kinship with the decedent by
virtue of legal adoption. At the heart of the controversy is Basilia's last will
— immaculate in its extrinsic validity since it bears the imprimatur of duly
conducted probate proceedings.
The complaint in intervention filed in the lower court assails the legality of
the tie which the respondent Perfecto Cruz and his brothers and sisters claim
to have with the decedent. The lower court had, however, assumed, by its
orders in question, that the validity or invalidity of the adoption is not
material nor decisive on the efficacy of the institution of heirs; for, even if
the adoption in question were spurious, the respondents Perfecto Cruz, et
al., will nevertheless succeed not as compulsory heirs but as testamentary
heirs instituted in Basilia's will. This ruling apparently finds support in
article, 842 of the Civil Code which reads:
One who has no compulsory heirs may dispose of by will all his estate or
any part of it in favor of any person having capacity to succeed.
One who has compulsory heirs may dispose of his estate provided he does
not contravene the provisions of this Code with regard to the legitime of
said heirs.
The lower court must have assumed that since the petitioners nephews and
niece are not compulsory heirs, they do not possess that interest which can
be prejudiced by a free-wheeling testamentary disposition. The petitioners'
interest is confined to properties, if any, that have not been disposed of in
the will, for to that extent intestate succession can take place and the
question of the veracity of the adoption acquires relevance.
The petitioners nephews and niece, upon the other hand, insist that the
entire estate should descend to them by intestacy by reason of the intrinsic
nullity of the institution of heirs embodied in the decedent's will. They have
thus raised squarely the issue of whether or not such institution of heirs
would retain efficacy in the event there exists proof that the adoption of the
same heirs by the decedent is false.
The petitioners cite, as the controlling rule, article 850 of the Civil Code
which reads:
The statement of a false cause for the institution of an heir shall be
considered as not written, unless it appears from the will that the testator
would not have made such institution if he had known the falsity of such
cause.
Coming closer to the center of the controversy, the petitioners have called
the attention of the lower court and this Court to the following pertinent
portions of the will of the deceased which recite:
III
Ang aking mga sapilitang tagapagmana (herederos forzosos) ay ang aking
itinuturing na mga anak na tunay (Hijos legalmente adoptados) na sina
Perfecto, Alberto, Luz, Benita at Isagani, na pawang may apelyidong Cruz.
xxx xxx xxx
Kung ako ay bawian ng Dios ng buhay, ay aking ipinamamana ang aking
mga ari-ariang maiiwan, sa kaparaanang sumusunod:
A.—Aking ipinamamana sa aking nabanggit na limang anak na sina
Perfecto, Alberto, Luz, Benita at Isagani, na pawang may apelyidong Cruz,
na parepareho ang kaparti ng bawa't isa at walang lamangan (en partes
iguales), bilang kanilang sapilitang mana (legiti[ma]), ang kalahati (½) ng
aking kaparti sa lahat ng aming ari-ariang gananciales ng aking yumaong
asawang Pedro Cruz na napapaloob sa Actuacion Especial No. 640 ng
Hukumang Unang Dulugan ng Rizal at itinutukoy sa No. 1 ng parafo IV ng
testamentong ito, ang kalahati (½) ng mga lagay na lupa at palaisdaan na
nasa Obando at Polo, Bulacan, na namana ko sa aking yumaong ama na si
Calixto Austria, at ang kalahati (½) ng ilang lagay na lupa na nasa
Tinejeros, Malabon, Rizal, na aking namana sa yumao kong kapatid na si
Fausto Austria.
The tenor of the language used, the petitioners argue, gives rise to the
inference that the late Basilia was deceived into believing that she was
legally bound to bequeath one-half of her entire estate to the respondents
Perfecto Cruz, et al. as the latter's legitime. The petitioners further contend
that had the deceased known the adoption to be spurious, she would not
have instituted the respondents at all — the basis of the institution being
solely her belief that they were compulsory heirs. Proof therefore of the
falsity of the adoption would cause a nullity of the institution of heirs and
the opening of the estate wide to intestacy. Did the lower court then abuse
its discretion or act in violation of the rights of the parties in barring the
petitioners nephews and niece from registering their claim even to
properties adjudicated by the decedent in her will?
Before the institution of heirs may be annulled under article 850 of the Civil
Code, the following requisites must concur: First, the cause for the
institution of heirs must be stated in the will; second, the cause must be
shown to be false; and third, it must appear from the face of the will that the
testator would not have made such institution if he had known the falsity of
the cause.
The petitioners would have us imply, from the use of the terms, "sapilitang
tagapagmana" (compulsory heirs) and "sapilitang mana" (legitime), that the
impelling reason or cause for the institution of the respondents was the
testatrix's belief that under the law she could not do otherwise. If this were
indeed what prompted the testatrix in instituting the respondents, she did not
make it known in her will. Surely if she was aware that succession to the
legitime takes place by operation of law, independent of her own wishes,
she would not have found it convenient to name her supposed compulsory
heirs to their legitimes. Her express adoption of the rules on legitimes
should very well indicate her complete agreement with that statutory
scheme. But even this, like the petitioners' own proposition, is highly
speculative of what was in the mind of the testatrix when she executed her
will. One fact prevails, however, and it is that the decedent's will does not
state in a specific or unequivocal manner the cause for such institution of
heirs. We cannot annul the same on the basis of guesswork or uncertain
implications.
And even if we should accept the petitioners' theory that the decedent
instituted the respondents Perfecto Cruz, et al. solely because she believed
that the law commanded her to do so, on the false assumption that her
adoption of these respondents was valid, still such institution must stand.
Article 850 of the Civil Code, quoted above, is a positive injunction to
ignore whatever false cause the testator may have written in his will for the
institution of heirs. Such institution may be annulled only when one is
satisfied, after an examination of the will, that the testator clearly would not
have made the institution if he had known the cause for it to be false. Now,
would the late Basilia have caused the revocation of the institution of heirs
if she had known that she was mistaken in treating these heirs as her legally
adopted children? Or would she have instituted them nonetheless?
The decedent's will, which alone should provide the answer, is mute on this
point or at best is vague and uncertain. The phrases, "mga sapilitang
tagapagmana" and "sapilitang mana," were borrowed from the language of
the law on succession and were used, respectively, to describe the class of
heirs instituted and the abstract object of the inheritance. They offer no
absolute indication that the decedent would have willed her estate other than
the way she did if she had known that she was not bound by law to make
allowance for legitimes. Her disposition of the free portion of her estate
(libre disposicion) which largely favored the respondent Perfecto Cruz, the
latter's children, and the children of the respondent Benita Cruz, shows a
perceptible inclination on her part to give to the respondents more than what
she thought the law enjoined her to give to them. Compare this with the
relatively small devise of land which the decedent had left for her blood
relatives, including the petitioners Consuelo Austria-Benta and Lauro Mozo
and the children of the petitioner Ruben Austria. Were we to exclude the
respondents Perfecto Cruz, et al. from the inheritance, then the petitioners
and the other nephews and nieces would succeed to the bulk of the testate
by intestacy — a result which would subvert the clear wishes of the
decedent.
Whatever doubts one entertains in his mind should be swept away by these
explicit injunctions in the Civil Code: "The words of a will are to receive an
interpretation which will give to every expression some effect, rather than
one which will render any of the expressions inoperative; and of two modes
of interpreting a will, that is to be preferred which will prevent intestacy." 1
Testacy is favored and doubts are resolved on its side, especially where the
will evinces an intention on the part of the testator to dispose of practically
his whole estate,2 as was done in this case. Moreover, so compelling is the
principle that intestacy should be avoided and the wishes of the testator
allowed to prevail, that we could even vary the language of the will for the
purpose of giving it effect.3 A probate court has found, by final judgment,
that the late Basilia Austria Vda. de Cruz was possessed of testamentary
capacity and her last will executed free from falsification, fraud, trickery or
undue influence. In this situation, it becomes our duty to give full
expression to her will.4
At all events, the legality of the adoption of the respondents by the testatrix
can be assailed only in a separate action brought for that purpose, and
cannot be the subject of a collateral attack.5
To the petitioners' charge that the lower court had no power to reverse its
order of December 22, 1959, suffice it to state that, as borne by the records,
the subsequent orders complained of served merely to clarify the first — an
act which the court could legally do. Every court has the inherent power to
amend and control its processes and orders so as to make them conformable
to law and justices.6 That the court a quo has limited the extent of the
petitioners' intervention is also within its powers as articulated by the Rules
of Court.7
ACCORDINGLY, the present petition is denied, at petitioners cost.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Fernando,
Teehankee, Barredo and Villamor, JJ., concur.
G.R. No. 198994, February 03, 2016
IRIS MORALES, Petitioners, v. ANA MARIA OLONDRIZ,
ALFONSO JUAN OLONDRIZ, JR., ALEJANDRO MORENO
OLONDRIZ, ISABEL ROSA OLONDRIZ AND FRANCISCO
JAVIER MARIA OLONDRIZ, Respondent.
DECISION
BRION, J.:
This is a petition for review on certiorari filed by Iris Morales from the
May 27, 2011 decision and October 12, 2011 resolution of the Court of
Appeals (CA) in CA-G.R. SP No. 102358.1 The CA denied Morales'
petition for certiorari from the Regional Trial Court's (RTC) July 12, 2007
and October 30, 2007 orders in SP. Proc. No. 03-0060 and SP. Proc. No.
03-0069.2chanroblesvirtuallawlibrary
Antecedents
Alfonso Juan P. Olondriz, Sr. (the decedent) died on June 9, 2003. He
was survived by his widow, Ana Maria Ortigas de Olondriz, and his
children: Alfonso Juan O. Olondriz, Jr., Alejandro Marino O. Olondriz,
Isabel Rosa O. Olondriz, Angelo Jose O. Olondriz, and Francisco Javier
Maria Bautista Olondriz. His widow and children are collectively
referred to as the respondent heirs.
Believing that the decedent died intestate, the respondent heirs filed a
petition with the Las Piñas RTC for the partition of the decedent's
estate and the appointment of a special administrator on July 4, 2003.
The case was raffled to Branch 254 and docketed as Sp. Proc. Case
No. SP-03-0060.
On July 11, 2003, the RTC appointed Alfonso Juan O. Olondriz, Jr. as
special administrator.
However, on July 28, 2003, Iris Morales filed a separate petition with
the RTC alleging that the decedent left a will dated July 23, 1991.
Morales prayed for the probate of the will and for hex appointment as
special administratrix. Her petition was also raffled to Branch 254 and
docketed as Sp. Proc. Case No. SP-03-0069.
The pertinent portions of the decedent's will
reads:chanRoblesvirtualLawlibrary
1. Upon my death, IRIS MORALES OLONDRIZ shall be the
executor hereof and administrator of my estate until its distribution
in accordance herewith, x x x
2. My entire estate shall be divided into six (6) parts to be distributed
equally among and between (1) IRIS MORALES OLONDRIZ, my
children (2) ALFONSO JUAN OLONDRIZ, JR., (3)
ALEJANDRO OLONDRIZ, (4) ISABEL OLONDRIZ, (5)
ANGELO OLONDRIZ, and their mother (6) MARIA ORTEGAS
OLONDRIZ, SR.3
Notably, the will omitted Francisco Javier Maria Bautista Olondriz, an
illegitimate son of the decedent.
On September 1, 2003, Morales filed a manifestation in Sp. Proc. Case No.
SP-03-0060 and moved to suspend the intestate proceedings in order to give
way to the probate proceedings in Sp. Proc. Case No. SP-03-0069. The
respondent heirs opposed Morales' motion for suspension and her petition
for allowance of the will.
On November 27, 2003, the RTC consolidated Sp. Proc. Case No. SP-03-
0060 with Sp. Proc. Case No. SP-03-0069.
On January 6, 2004, the respondent heirs moved to dismiss the probate
proceedings because Francisco was preterited from the will.
On January 10, 2006, Morales agreed to the holding of an evidentiary
hearing to resolve the issue of preterition. Thus, the RTC ordered the parties
to submit their factual allegations to support or negate the existence of
preterition. Only the respondent heirs complied with this order.
After several postponements at the instance of Morales, the reception of
evidence for the evidentiary hearing was scheduled on May 29, 2006.
However, Morales failed to appear, effectively waiving her right to present
evidence on the issue of preterition.
On June 23, 2006, the RTC, through Judge Gloria Butay Aglugub,
suspended the intestate proceedings in Sp. Proc. Case No. SP-03-0060 and
set the case for probate. The RTC reasoned that probate proceedings take
precedence over intestate proceedings.
The respondent heirs moved for reconsideration of the suspension order but
the RTC denied the motion on September 1, 2006. The RTC also summarily
revoked the Letters of Administration previously issued to Alfonso Jr.
The respondent heirs moved for reconsideration of the summary revocation
of the Letters of Administration. They also moved for the inhibition of
Judge Aglugub of Branch 254.
On November 16, 2006, the RTC granted the motion for inhibition. The
case was transferred to Branch 253 presided by Judge Salvador V.
Timbang, Jr.
On July 12, 2007, the RTC resolved (1) the respondent heirs' motion for
reconsideration of the revocation of the Letters of Administration and (2)
Morales' motion to be appointed Special Administratrix of the estate. The
RTC noted that while testacy is preferred over intestacy, courts will not
hesitate to set aside probate proceedings if it appears that the probate of the
will might become an idle ceremony because the will is intrinsically void.
The RTC observed: (1) that Morales expressly admitted that Francisco
Javier Maria Bautista Olondriz is an heir of the decedent; (2) that Francisco
was clearly omitted from the will; and (3) that based on the evidentiary
hearings, Francisco was clearly preterited. Thus, the RTC reinstated
Alfonso Jr. as administrator of the estate and ordered the case to proceed in
intestacy.
Morales moved for reconsideration which the RTC denied on October 30,
2007, for lack of merit.
On February 7, 2008, Morales filed a petition for certiorari against the
orders of the RTC. Morales alleged that the RTC acted with grave abuse of
discretion in proceeding intestate despite the existence of the will. The
petition was docketed as CA-G.R. SP No. 102358.
On May 27, 2011, the CA dismissed Morales' petition for certiorari. The
CA reasoned that while probate proceedings take precedence over intestate
proceedings, the preterition of a compulsory heir in the direct line annuls the
institution of heirs in the will and opens the entire inheritance into intestate
succession.4 Thus, the continuation of the probate proceedings would be
superfluous and impractical because the inheritance will be adjudicated
intestate. The CA concluded that the RTC did not act with grave abuse of
discretion.
Morales moved for reconsideration which the CA denied on October 12,
2011. Hence, she filed the present petition for review on certiorari on
December 5, 2011.
The Petition
Morales maintains that the RTC committed grave abuse of discretion when
it ordered the case to proceed intestate because: (1) the probate of a
decedent's will is mandatory; (2) the RTC Branch 254 already ordered the
case to proceed into probate; (3) the order setting the case for probate
already attained finality; (3) the probate court cannot touch on the intrinsic
validity of the will; and (4) there was no preterition because Francisco
received a house and lot inter vivos as an advance on his legitime.
The respondent heirs counter: (1) that it is within the RTC's jurisdiction to
reverse or modify an interlocutory order setting the case for probate; (2) that
the petitioner failed to mention that she did not appear in any of the
evidentiary hearings to disprove their allegation of preterition; (3) that the
RTC and the CA both found that Francisco was preterited from the will; and
(4) that Francisco's preterition annulled the institution of heirs and opened
the case into intestacy. They conclude that the RTC did not exceed its
jurisdiction or act with grave abuse of discretion when it reinstated Alfonso
Jr. as the administrator of the estate and ordered the case to proceed
intestate.
Our Ruling
We join the ruling of the CA.
Preterition consists in the omission of a compulsory heir from the will,
either because he is not named or, although he is named as a father, son,
etc., he is neither instituted as an heir nor assigned any part of the estate
without expressly being disinherited - tacitly depriving the heir of his
legitime.5 Preterition requires that the omission is total, meaning the heir did
not also receive any legacies, devises, or advances on his legitime.6
In other words, preterition is the complete and total omission of a
compulsory heir from the testator's inheritance without the heir's express
disinheritance.
Article 854 of the Civil Code states the legal effects of
preterition:chanRoblesvirtualLawlibrary
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.
If the omitted compulsory heirs should die before the testator, the institution
shall be effectual, without prejudice to the right of representation, (emphasis
supplied)cralawlawlibrary
Under the Civil Code, the preterition of a compulsory heir in the direct line
shall annul the institution of heirs, but the devises and legacies shall remain
valid insofar as the legitimes are not impaired. Consequently, if a will does
not institute any devisees or legatees, the preterition of a compulsory heir in
the direct line will result in total intestacy.7
In the present case, the decedent's will evidently omitted Francisco Olondriz
as an heir, legatee, or devisee. As the decedent's illegitimate son, Francisco
is a compulsory heir in the direct line. Unless Morales could show
otherwise, Francisco's omission from the will leads to the conclusion of his
preterition.
During the proceedings in the RTC, Morales had the opportunity to present
evidence that Francisco received donations inter vivos and advances on his
legitime from the decedent. However, Morales did not appear during the
hearing dates, effectively waiving her right to present evidence on the issue.
We cannot fault the RTC for reaching the reasonable conclusion that there
was preterition.
We will not entertain the petitioner's factual allegation that Francisco was
not preterited because this Court is not a trier of facts. Furthermore, the CA
concurred with the RTC's conclusion. We see no cogent reason to deviate
from the factual findings of the lower courts.
The remaining question is whether it was proper for the RTC to (1) pass
upon the intrinsic validity of the will during probate proceedings and (2)
order the case to proceed intestate because of preterition.
The general rule is that in probate proceedings, the scope of the court's exercise of judgment equivalent to an evasion of positive duty, or a virtual
inquiry is limited to questions on the extrinsic validity of the will; the refusal to act at all in contemplation of the law.17 It is present when power is
probate court will only determine the will's formal validity and due exercised in a despotic manner by reason, for instance, of passion and
execution.8 However, this rule is not inflexible and absolute. 9 It is not hostility. Morales failed to show that the RTC acted in such a capricious and
beyond the probate court's jurisdiction to pass upon the intrinsic validity of despotic manner that would have warranted the CA's grant of her petition
the will when so warranted by exceptional circumstances.10 When practical for certiorari. On the contrary, the RTC acted appropriately in accordance
considerations demand that the intrinsic validity of the will be passed upon with the law and jurisprudence.cralaw-red
even before it is probated, the probate court should meet the issue. 11
WHEREFORE, the petition is DISMISSED. Costs against the petitioner.
The decedent's will does not contain specific legacies or devices and
Francisco's preterition annulled the institution of heirs. The annulment SO ORDERED.
effectively caused the total abrogation of the will, resulting in total
intestacy of the inheritance.12 The decedent's will, no matter how valid it
may appear extrinsically, is null and void. The conduct of separate
proceedings to determine the intrinsic validity of its testamentary provisions
would be superfluous. Thus, we cannot attribute error - much less grave
abuse of discretion - on the RTC for ordering the case to proceed intestate.

Finally, there is no merit in the petitioner's argument that the previous order
setting the case for probate barred the RTC from ordering the case to
proceed intestate. The disputed order is merely interlocutory and can never
become final and executory in the same manner that a final judgment
does.13 An interlocutory order does not result in res judicata.14 It remains
under the control of the court and can be modified or rescinded at any time
before final judgment.15

Certiorari is a limited form of review confined to errors of jurisdiction. An

error of jurisdiction is one where the officer or tribunal acted without or in
excess of its jurisdiction, or with grave abuse of discretion amounting to
lack or excess of jurisdiction.16 As discussed, it is well within the
jurisdiction of the probate court to pass upon the intrinsic validity of the will
if probate proceedings might become an idle ceremony due to the nullity of
the will.

On the other hand, grave abuse of discretion is the capricious and whimsical
G.R. No. L-17818 January 25, 1967
TIRSO T. REYES, as guardian of the minors Azucena Flordelis and
Tirso, Jr., all surnamed Reyes y Barretto, plaintiffs-appellants,
vs.
LUCIA MILAGROS BARRETTO-DATU, defendant-appellee.
Recto Law Office for plaintiff-appealant.
Deogracias T. Reyes and Associates for defendant-appellee.
REYES, J.B.L., J.:
Direct appeal from a judgment of the Court of First Instance of Bulacan, in
its Civil Case No. 1084, dismissing the complaint of appellant Tirso T.
Reyes and ordering the same to deliver to the defendant-appellee, Lucia
Milagros Barretto-Datu, the properties receivea by his deceasea wife under
the terms of the will of the late Bibiano Barretto, consisting of lots in
Manila, Rizal, Pampanga and Bulacan, valued at more than P200,000.
The decision appealed from sets the antecedents of the case to be as follows:
"This is an action to recover one-half share in the fishpond, located in the
barrio of San Roque, Hagonoy, Bulacan, covered by Transfer Certificate of
Title No. T-13734 of the Land Records of this Province, being the share of
plaintiff's wards as minor heirs of the deceased Salud Barretto, widow of
plaintiff Tirso Reyes, guardian of said minors."
It appears that Bibiano Barretto was married to Maria Gerardo. During their
lifetime they acquired a vast estate, consisting of real properties in Manila,
Pampanga, and Bulacan, covered by Transfer Certificates of Title Nos.
41423, 22443, 8858, 32989, 31046, 27285, 6277, 6500, 2057, 6501, 2991,
57403 and 12507/T-337.
When Bibiano Barretto died on February 18, 1936, in the City of Manila, he
left his share of these properties in a will Salud Barretto, mother of
plaintiff's wards, and Lucia Milagros Barretto and a small portion as
legacies to his two sisters Rosa Barretto and Felisa Barretto and his nephew
anä nieces® The usufruct oæ the fishponä situateä iî barrio Saî Roque¬
Hagonoy, Bulacan, above-mentioned, however, was reserved for his widow,
Maria Gerardo® Iî the meantime¬ Maria Gerardo was appointeä
administratrix. By virtue thereof, she prepared a project of partition, which
was signed by her in her own behalf and as guardian of the minor Milagros
Barretto. Said project of partition was approved by the Court of First
Instance of Manila on November 22, 1939. The distribution of the estate
and the delivery of the shares of the heirs followed forthwith. As a
consequence, Salud Barretto took immediate possession of her share and
secured the cancellation of the original certificates of title and the issuance
of new titles in her own name.
Everything went well since then. Nobody was heard to complain of any
irregularity in the distribution of the said estate until the widow, Maria
Gerardo died on March 5, 1948. Upon her death, it was discovered that she
had executed two wills, in the first of which, she instituted Salud and
Milagros, both surnamed Barretto, as her heirs; and, in the second, she
revoked the same and left all her properties in favor of Milagros Barretto
alone. Thus, the later will was allowed and the first rejected. In rejecting the
first will presented by Tirso Reyes, as guardian of the children of Salud
Barretto, the lower court held that Salud was not the daughter of the
decedent Maria Gerardo by her husband Bibiano Barretto. This ruling was
appealed to the Supreme Court, which affirmed the same.1
Having thus lost this fight for a share in the estate of Maria Gerardo, as a
legitimate heir of Maria Gerardo, plaintiff now falls back upon the remnant
of the estate of the deceased Bibiano Barretto, which was given in usufruct
to his widow Maria Gerardo. Hence, this action for the recovery of one-half
portion, thereof.
This action afforded the defendant an opportunity to set up her right of
ownership, not only of the fishpond under litigation, but of all the other
properties willed and delivered to Salud Barretto, for being a spurious heir,
and not entitled to any share in the estate of Bibiano Barretto, thereby
directly attacking the validity, not only of the project of partition, but of the
decision of the court based thereon as well.
The defendant contends that the Project of Partition from which Salud
acquired the fishpond in question is void ab initio and Salud Barretto did
not acquire any valid title thereto, and that the court did not acquire any
jurisdiction of the person of the defendant, who was then a minor.'
Finding for the defendant (now appellee), Milagros Barretto, the lower court
declared the project of partition submitted in the proceedings for the
settlement of the estate of Bibiano Barretto (Civil Case No. 49629 of the
Court of First Instance of Manila) to be null and void ab initio (not merely
voidable) because the distributee, Salud Barretto, predecessor of plaintiffs
(now appellants), was not a daughter of the spouses Bibiano Barretto and
Maria Gerardo. The nullity of the project of partition was decreed on the
basis of Article 1081 of the Civil Code of 1889 (then in force) providing as
follows: .
A partition in which a person was believed to be an heir, without being so,
has been included, shall be null and void.
The court a quo further rejected the contention advanced by plaintiffs that
since Bibiano Barretto was free to dispose of one-third (1/3) of his estate
under the old Civil Code, his will was valid in favor of Salud Barretto (nee
Lim Boco) to the extent, at least, of such free part. And it concluded that, as
defendant Milagros was the only true heir of Bibiano Barretto, she was
entitled to recover from Salud, and from the latter's children and successors,
all the Properties received by her from Bibiano's estate, in view of the
provisions of Article 1456 of the new Civil Code of the Philippines
establishing that property acquired by fraud or mistake is held by its
acquirer in implied trust for the real owner. Hence, as stated at the
beginning of this opinion, the Court a quo not only dismissed the plaintiffs'
complaint but ordered them to return the properties received under the
project of partition previously mentioned as prayed for in defendant
Milagros Barretto's counterclaim. However, it denied defendant's prayer for
damages. Hence, this appeal interposed by both plaintiffs and defendant.
Plaintiffs-appellants correctly point out that Article 1081 of the old Civil
Code has been misapplied to the present case by the court below. The
reason is obvious: Salud Barretto admittedly had been instituted heir in the
late Bibiano Barretto's last will and testament together with defendant
Milagros; hence, the partition had between them could not be one such had
with a party who was believed to be an heir without really being one, and
was not null and void under said article. The legal precept (Article 1081)
does not speak of children, or descendants, but of heirs (without distinction
between forced, voluntary or intestate ones), and the fact that Salud
happened not to be a daughter of the testator does not preclude her being
one of the heirs expressly named in his testament; for Bibiano Barretto was
at liberty to assign the free portion of his estate to whomsoever he chose.
While the share (½) assigned to Salud impinged on the legitime of
Milagros, Salud did not for that reason cease to be a testamentary heir of
Bibiano Barretto.
Nor does the fact that Milagros was allotted in her father's will a share
smaller than her legitime invalidate the institution of Salud as heir, since
there was here no preterition, or total ommission of a forced heir. For this
reason, Neri vs. Akutin, 72 Phil. 322, invoked by appellee, is not at all
applicable, that case involving an instance of preterition or omission of
children of the testator's former marriage.
Appellee contends that the partition in question was void as a compromise
on the civil status of Salud in violation of Article 1814 of the old Civil
Code. This view is erroneous, since a compromise presupposes the
settlement of a controversy through mutual concessions of the parties (Civil
Code of 1889, Article 1809; Civil Code of the Philippines, Art. 2028); and
the condition of Salud as daughter of the testator Bibiano Barretto, while
untrue, was at no time disputed during the settlement of the estate of the
testator. There can be no compromise over issues not in dispute. And while
a compromise over civil status is prohibited, the law nowhere forbids a
settlement by the parties over the share that should correspond to a claimant
to the estate.
At any rate, independently of a project of partition which, as its own name
implies, is merely a proposal for distribution of the estate, that the court
may accept or reject, it is the court alone that makes the distribution of the
estate and determines the persons entitled thereto and the parts to which
each is entitled (Camia vs. Reyes, 63 Phil. 629, 643; Act 190, Section 750;
Rule 90, Rules of 1940; Rule 91, Revised Rules of Court), and it is that
judicial decree of distribution, once final, that vests title in the distributees.
If the decree was erroneous or not in conformity with law or the testament,
the same should have been corrected by opportune appeal; but once it had
become final, its binding effect is like that of any other judgment in rem,
unless properly set aside for lack of jurisdiction or fraud.
It is thus apparent that where a court has validly issued a decree of
distribution of the estate, and the same has become final, the validity or
invalidity of the project of partition becomes irrelevant.
It is, however, argued for the appellee that since the court's distribution of
the estate of the late Bibiano Barretto was predicated on the project of
partition executed by Salud Barretto and the widow, Maria Gerardo (who
signed for herself and as guardian of the minor Milagros Barretto), and
since no evidence was taken of the filiation of the heirs, nor were any
findings of fact or law made, the decree of distribution can have no greater
validity than that of the basic partition, and must stand or fall with it, being
in the nature of a judgment by consent, based on a compromise. Saminiada
vs. Mata, 92 Phil. 426, is invoked in support of the proposition. That case is
authority for the proposition that a judgment by compromise may be set
aside on the ground of mistake or fraud, upon petition filed in due time,
where petition for "relief was filed before the compromise agreement a
proceeding, was consummated" (cas. cit. at p. 436). In the case before us,
however, the agreement of partition was not only ratified by the court's
decree of distribution, but actually consummated, so much so that the titles
in the name of the deceased were cancelled, and new certificates issued in
favor of the heirs, long before the decree was attacked. Hence, Saminiada
vs. Mata does not apply.
Moreover, the defendant-appellee's argument would be plausible if it were
shown that the sole basis for the decree of distribution was the project of
partition. But, in fact, even without it, the distribution could stand, since it
was in conformity with the probated will of Bibiano Barretto, against the
provisions whereof no objection had been made. In fact it was the court's
duty to do so. Act 190, section 640, in force in 1939, provided: .
SEC. 640. Estate, How Administered. — When a will is thus allowed, the
court shall grant letters testamentary, or letters of administration with the
will annexed, and such letters testamentary or of administration, shall
extend to all the estate of the testator in the Philippine Islands. Such estate,
after the payment of just debts and expenses of administration, shall be
disposed of according to such will, so far as such will may operate upon it;
and the residue, if any, shall be disposed of as is provided by law in cases of
estates in these Islands belonging to persons who are inhabitants of another
state or country. (Emphasis supplied)
That defendant Milagros Barretto was a minor at the time the probate court
distributed the estate of her father in 1939 does not imply that the said court
was without jurisdiction to enter the decree of distribution. Passing upon a
like issue, this Court ruled in Ramos vs. Ortuzar, 89 Phil. Reports, pp. 741
and 742:
If we are to assume that Richard Hill and Marvin Hill did not formally
intervene, still they would be concluded by the result of the proceedings, not
only as to their civil status but as the distribution of the estate as well. As
this Court has held in Manolo vs. Paredes, 47 Phil. 938, "The proceeding for
probate is one in rem (40 Cyc., 1265) and the court acquires jurisdiction
over all persons interested, through the publication of the notice prescribed
by section 630 C.P.C.; and any order that any be entered therein is binding
against all of them." (See also in re Estate of Johnson, 39 Phil. 156.) "A
final order of distribution of the estate of a deceased person vests the title to
the land of the estate in the distributees". (Santos vs. Roman Catholic
Bishop of Nueva Caceres, 45 Phil. 895.) There is no reason why, by
analogy, these salutary doctrines should not apply to intestate proceedings.
The only instance that we can think of in which a party interested in a
probate proceeding may have a final liquidation set aside is when he is left
out by reason of circumstances beyond his control or through mistake or
inadvertence not imputable to negligence. Even then, the better practice to
secure relief is reopening of the same case by proper motion within the
reglementary period, instead of an independent action the effect of which, if
successful, would be, as in the instant case, for another court or judge to
throw out a decision or order already final and executed and reshuffle
properties long ago distributed and disposed of.
It is well to observe, at this juncture, as this Court expressly declared in
Reyes vs. Barretto Datu, 94 Phil. 446 (Am'd Rec. Appeal, pp. 156, 157),
that:
... It is argued that Lucia Milagros Barretto was a minor when she signed
the partition, and that Maria Gerardo was not her judicially appointed
guardian. The claim is not true. Maria Gerardo signed as guardian of the
minor. (Secs. 3 and 5, Rule 97, Rules of Court.) The mere statement in the
project of partion that the guardianship proceedings of the minor Lucia
Milagros Barretto are pending in the court, does not mean that the guardian
had not yet been appointed; it meant that the guardianship proceedings had
not yet been terminated, and as a guardianship proceedings begin with the
appointment of a guardian, Maria Gerardo must have been already
appointed when she signed the project of partition. There is, therefore, no
irregularity or defect or error in the project of partition, apparent on the
record of the testate proceedings, which shows that Maria Gerardo had no
power or authority to sign the project of partition as guardian of the minor
Lucia Milagros Barretto, and, consequently, no ground for the contention
that the order approving the project of partition is absolutely null and void
and may be attacked collaterally in these proceedings.
So that it is now incontestable that appellee Milagros Barretto was not only
made a party by publication but actually appeared and participated in the
proceedings through her guardian: she, therefore, can not escape the
jurisdiction of the Manila Court of First Instance which settled her father's
estate.
Defendant-appellee further pleads that as her mother and guardian (Maria
Gerardo) could not have ignored that the distributee Salud was not her
child, the act of said widow in agreeing to the oft-cited partition and
distribution was a fraud on appellees rights and entitles her to relief. In the
first place, there is no evidence that when the estate of Bibiano Barretto was
judicially settled and distributed appellants' predecessor, Salud Lim Boco
Barretto to, knew that she was not Bibiano's child: so that if fraud was
committed, it was the widow, Maria Gerardo, who was solely responsible,
and neither Salud nor her minor children, appellants herein, can be held
liable therefor. In the second placegranting that there was such fraud, relief
therefrom can only be obtained within 4 years from its discovery, and the
record shows that this period had elapsed long ago.
Because at the time of the distribution Milagros Barretto was only 16 years
old (Exhibit 24), she became of age five years later, in 1944. On that year,
her cause of action accrued to contest on the ground of fraud the court
decree distributing her father's estate and the four-year period of limitation
started to run, to expire in 1948 (Section 43, Act. 190). In fact, conceding
that Milagros only became aware of the true facts in 1946 (Appellee's Brief,
p. 27), her action still became extinct in 1950. Clearly, therefore, the action
was already barred when in August 31, 1956 she filed her counterclaim in
this case contesting the decree of distribution of Bibiano Barretto's estate.
In order to evade the statute of limitations, Milagros Barretto introduced
evidence that appellant Tirso Reyes had induced her to delay filing action
by verbally promising to reconvey the properties received by his deceased
wife, Salud. There is no reliable evidence of the alleged promise, which
rests exclusively on the oral assertions of Milagros herself and her counsel.
In fact, the trial court made no mention of such promise in the decision
under appeal. Even more: granting arguendo that the promise was made, the
same can not bind the wards, the minor children of Salud, who are the real
parties in interest. An abdicative waiver of rights by a guardian, being an act
of disposition, and not of administration, can not bind his wards, being null
and void as to them unless duly authorized by the proper court (Ledesma
Hermanos vs. Castro, 55 Phil. 136, 142).
In resume, we hold (1) that the partition had between Salud and Milagros
Barretto in the proceedings for the settlement of the estate of Bibiano
Barretto duly approved by the Court of First Instance of Manila in 1939, in
its Civil Case No. 49629, is not void for being contrary to either Article
1081 or 1814 of the, Civil Code of 1889; (2) that Milagros Barretto's action
to contest said partition and decree of distribution is barred by the statute of
limitations; and (3) that her claim that plaintiff-appellant guardian is a
possessor in bad faith and should account for the fruits received from the
properties inherited by Salud Barretto (nee Lim Boco) is legally untenable.
It follows that the plaintiffs' action for partition of the fishpond described in
the complaint should have been given due course.

Wherefore, the decision of the Court of First Instance of Bulacan now under
appeal is reversed and set aside in so far as it orders plaintiff-appellant to
reconvey to appellee Milagros Barretto Datu the properties enumeracted in
said decision, and the same is affirmed in so far as it denies any right of said
appellee to accounting. Let the records be returned to the court of origin,
with instructions to proceed with the action for partition of the fishpond
(Lot No. 4, Plan Psu-4709), covered by TCT No. T-13734 of the Office of
the Register of Deeds of Bulacan, and for the accounting of the fruits
thereof, as prayed for in the complaint No costs.

Concepcion, C.J., Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar,

Sanchez and Castro, JJ., concur.

Footnotes
G.R. No. L-13876 February 28, 1962
CONSOLACION FLORENTINO DE CRISOLOGO, ET AL.,
plaintiffs-appellees,
vs.
DR. MANUEL SINGSON, defendant-appellant.
Felix V. Vergara for defendant-appellant.
B. Martinez for plaintiffs-appellees.
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
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.
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, 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. IN VIEW OF THE FOREGOING, the appealed judgment is affirmed, with
costs.
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.

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.
G.R. No. L-27952 February 15, 1982
TESTATE ESTATE OF JOSE EUGENIO RAMIREZ, MARIA LUISA
PALACIOS, Administratrix, petitioner-appellee,
vs.
MARCELLE D. VDA. DE RAMIREZ, ET AL., oppositors, JORGE
and ROBERTO RAMIREZ, legatees, oppositors- appellants.
ABAD SANTOS, J.:
The main issue in this appeal is the manner of partitioning the testate estate
of Jose Eugenio Ramirez among the principal beneficiaries, namely: his
widow Marcelle Demoron de Ramirez; his two grandnephews Roberto and
Jorge Ramirez; and his companion Wanda de Wrobleski.
The task is not trouble-free because the widow Marcelle is a French who
lives in Paris, while the companion Wanda is an Austrian who lives in
Spain. Moreover, the testator provided for substitutions.
Jose Eugenio Ramirez, a Filipino national, died in Spain on December 11,
1964, with only his widow as compulsory heir. His will was admitted to
probate by the Court of First Instance of Manila, Branch X, on July 27,
1965. Maria Luisa Palacios was appointed administratrix of the estate. In
due time she submitted an inventory of the estate as follows:
INVENTARIO
Una sexta parte (1/6) proindiviso de un te
rreno, con sus mejoras y edificaciones, situadoen
la Escolta, Manila............................................................. P500,000.00
Una sexta parte (1/6) proindiviso de dos
parcelas de terreno situadas en Antipolo, Rizal................... 658.34
Cuatrocientos noventa y uno (491) acciones
de la 'Central Azucarera de la Carlota a P17.00
por accion ................................................................................8,347.00
Diez mil ochocientos seize (10,806) acciones
de la 'Central Luzon Milling Co.', disuelta y en
liquidacion a P0.15 por accion ..............................................1,620.90
Cuenta de Ahorros en el Philippine Trust
Co.............................................................................................. 2,350.73
TOTAL.............................................................. P512,976.97
MENOS:
Deuda al Banco de las Islas Filipinas, garan-
tizada con prenda de las acciones de La Carlota ......... P 5,000,00
VALOR LIQUIDO........................................... P507,976.97
The testamentary dispositions are as follows:
A.—En nuda propiedad, a D. Roberto y D. Jorge Ramirez, ambas menores
de edad, residentes en Manila, I.F., calle 'Alright, No. 1818, Malate, hijos de
su sobrino D. Jose Ma. Ramirez, con sustitucion vulgar a favor de sus
respectivos descendientes, y, en su defecto, con sustitucion vulgar
reciprocal entre ambos.
El precedente legado en nuda propiedad de la participacion indivisa de la
finca Santa Cruz Building, lo ordena el testador a favor de los legatarios
nombrados, en atencion a que dicha propiedad fue creacion del querido
padre del otorgante y por ser aquellos continuadores del apellido Ramirez,
B.—Y en usufructo a saber: —
a. En cuanto a una tercera parte, a favor de la esposa del testador, Da.
Marcelle Ramirez, domiciliada en IE PECO, calle del General Gallieni No.
33, Seine Francia, con sustitucion vulgar u fideicomisaria a favor de Da.
Wanda de Wrobleski, de Palma de Mallorca, Son Rapina Avenida de los
Reyes 13,
b.—Y en cuanto a las dos terceras partes restantes, a favor de la nombrada
Da. Wanda de Nrobleski con sustitucion vulgar v fideicomisaria a saber:—
En cuanto a la mitad de dichas dos terceras partes, a favor de D. Juan Pablo
Jankowski, de Son Rapina Palma de Mallorca; y encuanto a la mitad
restante, a favor de su sobrino, D. Horace V. Ramirez, San Luis Building,
Florida St. Ermita, Manila, I.F.
A pesar de las sustituciones fideiconiisarias precedentemente ordinadas, las
usufiructuarias nombradas conjuntamente con los nudo propietarios, podran
en cualquier memento vender a tercero los bienes objeto delegado, sin
intervencion alguna de los titulares fideicomisaarios.
On June 23, 1966, the administratrix submitted a project of partition as
follows: the property of the deceased is to be divided into two parts. One
part shall go to the widow 'en pleno dominio" in satisfaction of her legitime;
the other part or "free portion" shall go to Jorge and Roberto Ramirez "en
nuda propriedad." Furthermore, one third (1/3) of the free portion is charged
with the widow's usufruct and the remaining two-thirds (2/3) with a usufruct
in favor of Wanda.
Jorge and Roberto opposed the project of partition on the grounds: (a) that
the provisions for vulgar substitution in favor of Wanda de Wrobleski with
respect to the widow's usufruct and in favor of Juan Pablo Jankowski and
Horacio V. Ramirez, with respect to Wanda's usufruct are invalid because
the first heirs Marcelle and Wanda) survived the testator; (b) that the
provisions for fideicommissary substitutions are also invalid because the
first heirs are not related to the second heirs or substitutes within the first
degree, as provided in Article 863 of the Civil Code; (c) that the grant of a
usufruct over real property in the Philippines in favor of Wanda Wrobleski,
who is an alien, violates Section 5, Article III of the Philippine Constitution;
and that (d) the proposed partition of the testator's interest in the Santa Cruz
(Escolta) Building between the widow Marcelle and the appellants, violates
the testator's express win to give this property to them Nonetheless, the
lower court approved the project of partition in its order dated May 3, 1967.
It is this order which Jorge and Roberto have appealed to this Court.
1. The widow's legitime.
The appellant's do not question the legality of giving Marcelle one-half of
the estate in full ownership. They admit that the testator's dispositions
impaired his widow's legitime. Indeed, under Art. 900 of the Civil Code "If
the only survivor is the widow or widower, she or he shall be entitled to
one-half of the hereditary estate." And since Marcelle alone survived the
deceased, she is entitled to one-half of his estate over which he could
impose no burden, encumbrance, condition or substitution of any kind
whatsoever. (Art. 904, par. 2, Civil Code.)
It is the one-third usufruct over the free portion which the appellants
question and justifiably so. It appears that the court a quo approved the
usufruct in favor of Marcelle because the testament provides for a usufruct
in her favor of one-third of the estate. The court a quo erred for Marcelle
who is entitled to one-half of the estate "en pleno dominio" as her legitime
and which is more than what she is given under the will is not entitled to
have any additional share in the estate. To give Marcelle more than her
legitime will run counter to the testator's intention for as stated above his
dispositions even impaired her legitime and tended to favor Wanda.
2. The substitutions.
It may be useful to recall that "Substitution is the appoint- judgment of
another heir so that he may enter into the inheritance in default of the heir
originally instituted." (Art. 857, Civil Code. And that there are several kinds
of substitutions, namely: simple or common, brief or compendious,
reciprocal, and fideicommissary (Art. 858, Civil Code.) According to
Tolentino, "Although the Code enumerates four classes, there are really
only two principal classes of substitutions: the simple and the
fideicommissary. The others are merely variations of these two." (111 Civil
Code, p. 185 [1973].)
The simple or vulgar is that provided in Art. 859 of the Civil Code which
reads:
ART. 859. 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 incapacitated to accept the inheritance.
A simple substitution, without a statement of the cases to which it refers,
shall comprise the three mentioned in the preceding paragraph, unless the
testator has otherwise provided.
The fideicommissary substitution is described in the Civil Code as follows:
ART. 863. A fideicommissary substitution by virtue of which the fiduciary
or first heir instituted is entrusted with the obligation to preserve and to
transmit to a second heir the whole or part of inheritance, shall be valid and
shall take effect, provided such substitution does not go beyond one degree
from the heir originally instituted, and provided further that the fiduciary or
first heir and the second heir are living at time of the death of the testator.
It will be noted that the testator provided for a vulgar substitution in respect
of the legacies of Roberto and Jorge Ramirez, the appellants, thus: con
sustitucion vulgar a favor de sus respectivos descendientes, y, en su defecto,
con substitution vulgar reciprocal entre ambos.
The appellants do not question the legality of the substitution so provided.
The appellants question the sustitucion vulgar y fideicomisaria a favor de
Da. Wanda de Wrobleski" in connection with the one-third usufruct over the
estate given to the widow Marcelle However, this question has become
moot because as We have ruled above, the widow is not entitled to any
usufruct.
The appellants also question the sustitucion vulgar y fideicomisaria in
connection with Wanda's usufruct over two thirds of the estate in favor of
Juan Pablo Jankowski and Horace v. Ramirez.
They allege that the substitution in its vulgar aspect as void because Wanda
survived the testator or stated differently because she did not predecease the
testator. But dying before the testator is not the only case for vulgar
substitution for it also includes refusal or incapacity to accept the
inheritance as provided in Art. 859 of the Civil Code, supra. Hence, the
vulgar substitution is valid.
As regards the substitution in its fideicommissary aspect, the appellants are
correct in their claim that it is void for the following reasons:
(a) The substitutes (Juan Pablo Jankowski and Horace V. Ramirez) are not
related to Wanda, the heir originally instituted. Art. 863 of the Civil Code
validates a fideicommissary substitution "provided such substitution does
not go beyond one degree from the heir originally instituted."
What is meant by "one degree" from the first heir is explained by Tolentino
as follows:
Scaevola Maura, and Traviesas construe "degree" as designation,
substitution, or transmission. The Supreme Court of Spain has decidedly
adopted this construction. From this point of view, there can be only one
tranmission or substitution, and the substitute need not be related to the first
heir. Manresa, Morell and Sanchez Roman, however, construe the word
"degree" as generation, and the present Code has obviously followed this
interpretation. by providing that the substitution shall not go beyond one
degree "from the heir originally instituted." The Code thus clearly indicates
that the second heir must be related to and be one generation from the first
heir.
From this, it follows that the fideicommissary can only be either a child or a
parent of the first heir. These are the only relatives who are one generation
or degree from the fiduciary (Op. cit., pp. 193-194.)
(b) There is no absolute duty imposed on Wanda to transmit the usufruct to
the substitutes as required by Arts. 865 and 867 of the Civil Code. In fact,
the appellee admits "that the testator contradicts the establishment of a
fideicommissary substitution when he permits the properties subject of the
usufruct to be sold upon mutual agreement of the usufructuaries and the
naked owners." (Brief, p. 26.)
One-half (1/2) thereof to his widow as her legitime;
One-half (1/2) thereof which is the free portion to Roberto and Jorge
Ramirez in naked ownership and the usufruct to Wanda de Wrobleski with a
simple substitution in favor of Juan Pablo Jankowski and Horace V.
Ramirez.

3. The usufruct of Wanda. The distribution herein ordered supersedes that of the court a quo. No
special pronouncement as to costs.
The appellants claim that the usufruct over real properties of the estate in
favor of Wanda is void because it violates the constitutional prohibition SO ORDERED.
against the acquisition of lands by aliens.

The 1935 Constitution which is controlling provides as follows:

SEC. 5. Save in cases of hereditary succession, no private agricultural land

shall be transferred or assigned except to individuals, corporations, or
associations qualified to acquire or hold lands of the public domain in the
Philippines. (Art. XIII.)

The court a quo upheld the validity of the usufruct given to Wanda on the
ground that the Constitution covers not only succession by operation of law
but also testamentary succession. We are of the opinion that the
Constitutional provision which enables aliens to acquire private lands does
not extend to testamentary succession for otherwise the prohibition will be
for naught and meaningless. Any alien would be able to circumvent the
prohibition by paying money to a Philippine landowner in exchange for a
devise of a piece of land.

This opinion notwithstanding, We uphold the usufruct in favor of Wanda

because a usufruct, albeit a real right, does not vest title to the land in the
usufructuary and it is the vesting of title to land in favor of aliens which is
proscribed by the Constitution.

IN VIEW OF THE FOREGOING, the estate of Jose Eugenio Ramirez is

hereby ordered distributed as follows: