ESTATE OF HEMADY v LUZON SURETY CO., INC.No. L-8437, 28 November 1956

100 Phil 388

Article 774 provides that by succession, the properties, rights and obligations of a deceased person are transmitted through his death to his heirs either by his will or by operation of law. Hemady holds that the contingent liabilities of the decedent are part of the obligations transmitted by his death to his heirs. Accordingly, contingent claims against the estate of a deceased person arising from the decedent's contractual undertakings under various indemnity agreements executed in favor of various persons and entities are money claims which may be proved against his estate and/or heirs. These contingent claims may be proved during settlement proceedings by an indemnified surety even if in the meantime, no actual liability on the part of an indemnified surety has arisen by reason of actual payment made under the suretyship agreement. Accordingly, Hemady holds that the contingent obligations of a deceased person arising from his personal guaranty are not extinguished by his death.

Reyes, J.B.L., J.:

x x x

The Luzon Surety Co. had filed a claim against the Estate based on twenty different indemnity agreements, or counterbonds, each subscribed by a distinct principal and by the deceased K. H. Hemady, a surety (solidary guarantor) in all of them, in consideration of the Luzon Surety Co.'s having guaranteed the various principals in favor of different creditors. x x x.

The Luzon Surety Co. prayed for allowance, as a contingent claim, of the value of the twenty bonds it had executed in consideration of the counterbonds, and further asked for judgment for the unpaid premiums and documentary stamps affixed to the bonds, with 12 per cent interest thereon.

Before answer was filed, and upon motion of the administratrix of Hemady's estate, the lower court, by order of September 23, 1953, dismissed the claims of Luzon Surety Co. on two grounds: (1) that the premiums due and cost of documentary stamps were not contemplated under the indemnity agreements to be a part of the undertaking of the guarantor (Hemady), since they were not liabilities incurred after the execution of the counterbonds; and (2) that "whatever losses may occur after Hemady's death are not chargeable to his estate, because upon his death he ceased to be guarantor."

Taking up the latter point first, since it is the one more far reaching in effects, the reasoning of the court below ran as follows:

"The administratrix further contends that upon the death of Hemady, his liability as guarantor terminated, and therefore, in the absence of a showing that a loss or damage was suffered, the claim cannot be considered contingent. This Court believes that there is merit in this contention and finds support in Article 2046 of the new Civil Code. It should be noted that a new

requirement has been added for a person to qualify as a guarantor, that is: integrity. As correctly pointed out by the Administratrix, integrity is something purely personal and is not transmissible. Upon the death of Hemady, his integrity was not transmitted to his estate or successors. Whatever loss therefore, may occur after Hemady's death, are not chargeable to his estate because upon his death he ceased to be a guarantor.

x x x."

We find this reasoning untenable. Under the present Civil Code (Article 1311) as well as under the Civil Code of 1889 (Article 1257), the rule is that -

"Contracts take effect only as between the parties, their assigns and heirs, except in the case where the rights and obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law."

While in our successional system the responsibility of the heirs for the debts of the decedent cannot exceed the value of the inheritance they receive from him, the principle remains intact that these heirs succeed not only to the rights of the deceased but also to his obligations. Articles 774 and 776 of the new Civil Code (and in Articles 659 and 661 of the preceding one) expressly so provide, thereby confirming Article 1311 already quoted.

"Art. 774. - Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law."

"Art. 776. - The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death."

In Mojica v Fernandez, 9 Phil 403, this Supreme Court ruled:

"Under the Civil Code the heirs, by virtue of the rights of succession are subrogated to all the rights and obligations of the deceased (Article 661) and cannot be regarded as third parties with respect to a contract to which the deceased was a party, touching the estate of the deceased (Barrios v Dolor, 2 Phil 44).

"The principle on which these decisions rest is not affected by the provisions of the new Code of Civil Procedure, and, in accordance with that principle, the heirs of a deceased person cannot be held to be 'third persons' in relation to any contract touching the real estate of their decedent which comes into their hands by right of inheritance; they take such property subject to all the obligations resting thereon in the hands of him from whom they derive their rights." (See also Galasinao v Austria, 51 Off. Gaz. (No. 6) p. 2874 and de Guzman v Salak, 91 Phil 265.)

The binding effect of contracts upon the heirs of the deceased party is not altered by the provision of our Rules of Court that money debts of a deceased must be

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liquidated and paid from his estate before the residue is distributed among said heirs (Rule 89). The reason is that whatever payment is thus made from the estate is ultimately a payment by the heirs and distributees, since the amount of the paid claim in fact diminishes or reduces the shares that the heirs would have been entitled to receive.

Under our law, therefore, the general rule is that a party's contractual rights and obligations are transmissible to the successors. The rule is a consequence of the progressive "depersonalization" of patrimonial rights and duties that, as observed by Victorio Polacco, has characterized the history of these institutions. From the Roman concept of a relation from person to person, the obligation has evolved into a relation from patrimony to patrimony, with the persons occupying only a representative position, barring those rare cases where the obligation is strictly personal, i.e., is contracted intuitu personae, in consideration of its performance by a specific person and by no other. The transition is marked by the disappearance of the imprisonment for debt.

Of the three exceptions fixed by Article 1311, the nature of the obligation of the surety or guarantor does not warrant the conclusion that his peculiar individual qualit-ies are contemplated as a principal inducement for the contract. What did the creditor Luzon Surety Co. expect of K. H. Hemady? Nothing but the reimbursement of the moneys that the Luzon Surety Co. might have to disburse on account of the obligations of the principal debtors. This reimbursement is a payment of a sum of money, resulting from an obligation to give; and to the Luzon Surety Co., it was indifferent that the reimbursement should be made by Hemady himself or by someone else in his behalf, so long as the money was paid to it.

The second exception of Article 1311, p. 1, is intransmissibility by stipulation of the parties. Being exceptional and contrary to the general rule, this intransmissibility should not be easily implied, but must be expressly established, or at the very least, clearly inferable from the provisions of the contract itself, and the text of the agreements sued upon nowhere indicate that they are non-transferable.

x x x

Because under the law (Article 1311), a person who enters into a contract is deemed to have contracted for himself and his heirs and assigns, it is unnecessary for him to expressly stipulate to that effect; hence, his failure to do so is no sign that he intended his bargain to terminate upon his death. Similarly, that the Luzon Surety Co. did not require bondsman Hemady to execute a mortgage indicates nothing more than the company's faith and confidence in the financial stability of the surety, but not that his obligation was strictly personal.

The third exception to the transmissibility of obligations under Article 1311 exists when they are "not transmissible by operation of law." The provision makes reference to those cases where the law expresses that the rights or obligations are extinguished by death, as in the case in legal support (Article 300), parental authority

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(Article 327), usufruct (Article 603), contracts for a piece of work (Article 1726), partnership (Article 1830), and agency (Article 1919). By contrast, the articles of the Civil Code that regulate guaranty or suretyship (Articles 2047 to 2084) contain no provision that the guaranty is extinguished upon the death of the guarantor or the surety.

The lower courts ought to infer such a limitation from Art. 2056, to the effect that "one who is obliged to furnish a guarantor must present a person who possesses integrity, capacity to bind himself, and sufficient property to answer for the obligation which he guarantees." It will be noted, however, that the law requires these qualities to be present only at the time of the perfection of the contract of guaranty. It is self-evident that once the contract has become perfected and binding, the supervening incapacity of the guarantor would not operate to exonerate him of the eventual liability he has contracted; and if that be true of his capacity to bind himself, it should also be true of his integrity, which is a quality mentioned in the article alongside the capacity.

The following concept is confirmed by the next Article 2057 that runs as follows:

"Art. 2057. - If the guarantor should be convicted in first instance of a crime involving dishonesty or should become insolvent, the creditor may demand another who has all the qualifications required in the preceding article. The case is excepted where the creditor has required and stipulated that a specified person should be guarantor."

From this article it should be immediately apparent that the supervening dishonesty of the guarantor (that is to say, the disappearance of his integrity after he has become bound) does not terminate the contract but merely entitles the creditor to demand a replacement of the guarantor. But the step remains optional in the creditor: it is his right, not his duty; he may waive it if he chooses, or hold the guarantor to his bargain. Hence Article 2057 of the present Civil Code is incompatible with the trial court's stand that the requirement of integrity in the guarantor or surety makes the latter's undertaking strictly personal, so linked to his individuality that the guaranty automatically terminates upon his death.

The contract of suretyship entered into by K. H. Hemady in favor of Luzon Surety Co. not being rendered intransmissible due to the nature of the undertaking, nor by the stipulations of the contracts themselves, nor by provision of law, his eventual liability thereunder necessarily passed upon his death to his heirs. The contracts, therefore, give rise to contingent claims provable against his estate under section 5, Rule 87 (2 Moran, 1952 ed., p. 437; Gaskell & Co. v Tan Sit, 43 Phil 810, 814).

"The most common example of the contingent claim is that which arises when a person is bound as surety or guarantor for a principal who is insolvent or dead. Under the ordinary contract of suretyship the surety has no claim whatever against his principal until he himself pays something by way of satisfaction upon the obligation which is secured. When he does this, there

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instantly arises in favor of the surety the right to compel the principal to exonerate the surety. But until the surety has contributed something to the payment of the debt, or has performed the secured obligation in whole or in part, he has no right of action against anybody - no claim that could be reduced to judgment." (Citations omitted.)

For defendant administratrix it is averred that the above doctrine refers to a case where the surety files claims against the estate of the principal debtor; and it is urged that the rule does not apply to the case before us, where the late Hemady was a surety, not a principal debtor. The argument evinces a superficial view of the relations between parties. If under the Gaskell ruling, the Luzon Surety Co., as guarantor, could file a contingent claim against the estate of the principal debtors if the latter should die, there is absolutely no reason why it could not file such a claim against the estate of Hemady, since Hemady is a solidary co-debtor of his principals. What the Luzon Surety Co. may claim from the estate of a principal debtor it may equally claim from the estate of Hemady, since, in view of the existing solidarity, the latter does not even enjoy the benefit of exhaustion of the assets of the principal debtor.

The foregoing ruling is of course without prejudice to the remedies of the administratrix against the principal debtors under Articles 2071 and 2067 of the new Civil Code.

Our conclusion is that the solidary guarantor's liability is not extinguished by his death, and that in such event, the Luzon Surety Co. had the right to file against the estate a contingent claim for reimbursement. It becomes unnecessary now to discuss the estate's liability for premiums and stamp taxes, because irrespective of the solution to this question, the Luzon Surety's claim did state a cause of action, and its dismissal was erroneous.

Wherefore, the order appealed from is reversed, and the records are ordered remanded to the court of origin, with instructions to proceed in accordance with law. Cost against the Administratrix-Appellee. So ordered.

Paras, C.J., Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Concepcion, Endencia and Felix, JJ., concur.

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NATIONAL HOUSING AUTHORITY v ALMEIDAG.R. No. 162784, 22 June 2007

525 SCRA 383

An affidavit made a certain disposition of property which is to take effect upon the death of the affiant. This case holds that such an affidavit is in the nature of a will and that therefore, the transmission of the property and/or rights pertaining thereto is not in the nature of an assignment. The mode of acquisition is succession.

However, Chief Justice Puno also insisted that whatever property, rights and obligations which a deceased person may leave behind, the same should go to his or her estate for eventual distribution to the heirs, either by will or by intestacy. This statement is prone to misinterpretation because in Article 777, the rights to succession are transmitted to the heirs from the moment of the death of the decedent. Therefore, ownership of the inheritance is automatically and immediately transferred to the heirs. Any proceeding to settle the estate is in the nature of an administrative formality in order to ensure the payment of liabilities, the proper identification of the heirs, and the correct allocation of hereditary shares. Note that in Speed Distributing Corporation v Court of Appeals [G.R. No. 149351, 17 March 2004 (425 SCRA691)], Justice Calleja, speaking for the Court, ruled that “The general rule under the law on succession is that successional rights are transmitted from the moment of death of the decedent and compulsory heirs are call upon to succeed by operation of law to the inheritance without the need of further proceedings.”

Note too, that in this case, Chief Justice Puno recognized explicitly that not only property and rights are transmitted to the heirs under the law; it includes the obligations that are not extinguished by the death of the decedent. Compare this statement to the ponencia of Justice Brion in Reyes v RTC Branch 142 Makati where he said: “This interest (referring to the co-ownership of the heirs over the undivided corporate shares), at this point, is still inchoate and subject to the outcome of a settlement proceedings; the right of the heirs to specific, distributive shares of inheritance will not be determined until all the debts of the estate of the decedent are paid. In short, the heirs are only entitled to what remains after payment of the decedent’s debts; whether there will be residue remains to be seen.”

The final outcome of this case is predictable. The Supreme Court considered the affidavit as a will. As such, it should comply with the formal requisites prescribed in Articles 804, 805, and 806 of the Civil Code. With only 2 attesting witnesses and in the absence of an attestation clause, the affidavit, most certainly, will be denied probate and the estate of Margarita Herrera shall be distributed under the rules of intestacy.

Puno, C.J.:

x x x

On June 28, 1959, the Land Tenure Administration (LTA) awarded to Margarita Herrera several portions of land which are part of the Tunasan Estate in San

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Pedro, Laguna. The award is evidenced by an Agreement to Sell No. 3787. x x x The records show that Margarita Herrera had two children: Beatriz Herrera-

Mercado (the mother of private respondent) and Francisca Herrera. Beatriz Herrera- Mercado predeceased her mother and left heirs.

Margarita Herrera passed away on October 27, 1971.

On August 22, 1974, Francisca Herrera, the remaining child of the late Margarita Herrera, executed a Deed of Self-Adjudication claiming that she is the only remaining relative, being the sole surviving daughter of the deceased. She also claimed to be the exclusive legal heir of the late Margarita Herrera.

The Deed of Self-Adjudication was based on a Sinumpaang Salsaysay dated October 7, 1960, allegedly executed by Margarita Herrera. The pertinent portions of which are as follows:

SINUMPAANG SALAYSAY

Akong si MARGARITA HERRERA, Filipina, may 83 taong gulang, balo, kasalukuyang naninirahan at tumatanggap ng sulat sa Nayon ng San Vicente, San Pedro, Laguna, sa ilalim ng panunumpa ay malaya at kusang loob kong isinasaysay at pinagtitibay itong mga sumusunod:

1. Na ako ay may tinatangkilik na isang lagay na lupang tirikan (SOLAR), tumatayo sa Nayon ng San Vicente, San Pedro, Laguna, mayroong PITONG DAAN AT PITUMPU’T ISANG (771) METRO PARISUKAT ang laki, humigit kumulang at makikilala sa tawag na Lote 17, Bloke 55, at pag-aari ng Land Tenure Administration;

2. Na ang nasabing lote at aking binibile, sa pamamagitan ng paghuhulog sa Land Tenure Administration, at noong ika-30 ng Julio 1959, ang Kasunduang sa Pagbibile (AGREEMENT TO SELL No. 3787) ay ginawa at pinagtibay sa Lungsod ng Maynila, sa harap ng Notario Publico na si G. Jose C. Tolosa, at lumalabas sa kaniyang Libro Notarial bilang Documento No. 13, Pagina No. 4, Libro No. IV, Serie ng 1959.

3. Na dahilan sa ako’y matanda na at walang ano mang hanapbuhay, ako ay nakatira at pinagsisilbihan nang aking anak na si Francisca Herrera, at ang tinitirikan o solar na nasasabi sa unahan at binayaran ng kaniyang sariling cuarta sa Land Tenure Administration;

4. Na alang-alang sa nasasaysay sa unahan nito, sakaling ako’y bawian na ng Dios ng aking buhay, ang lupang nasasabi sa unahan ay aking ipinagkakaloob sa nasabi kong anak na FRANCISCA HERRERA, Filipina, nasa katamtamang gulang, kasal kay Macario Berroya, kasalukuyang naninirahan at tumatanggap ng sulat sa Nayon ng San Vicente, San Pedro, Laguna, o sa kaniyang mga tagapagmana at;

5. Na HINIHILING KO sa sino man kinauukulan, na sakaling ako nga ay bawian ng aking buhay ay KILALANIN, IGALANG at PAGTIBAYIN ang nilalaman sa pangalan ng aking anak na si Francisca Herrera ang loteng nasabi

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sa unahan.

SA KATUNAYAN NG LAHAT, ako ay nag-didiit ng hinlalaki ng kanan kong kamay sa ibaba nito at sa kaliwang gilid ng unang dahon, dito sa Lungsod ng Maynila, ngayon ika 7 ng Octubre 1960.”

The said document was signed by two witnesses and notarized. The witnesses signed at the left-hand side of both pages of the document with the said document having 2 pages in total. Margarita Herrera placed her thumb mark above her name in the second page and at the left-hand margin of the first page of the document.

The surviving heirs of Beatriz Herrera-Mercado filed a case for annulment of the Deed of Self-Adjudication before the then Court of First Instance of Laguna, Branch 1 in Biñan, Laguna (now Regional Trial Court Branch 25). x x x.

On December 29, 1980, a Decision x x x was rendered and the deed was declared null and void.

During trial on the merits of the case assailing the Deed of Self-Adjudication, Francisca Herrera filed an application with the NHA to purchase the same lots, submitting therewith a copy of the “Sinumpaang Salaysay” executed by her mother. Private respondent Almeida, as heir of Beatriz Herrera-Mercado, protested the application.

In a Resolution dated February 5, 1986, the NHA granted the application made by Francisca Herrera, holding that:

“From the evidence of the parties and the records of the lots in question, we gathered the following facts: the lots in question are portions of the lot awarded and sold to the late Margarita Herrera on July 28, 1959 by the defunct Land Tenure Administration; protestant is the daughter of the late Beatriz Herrera Mercado who was the sister of the protestee; protestee and Beatriz are children of the late Margarita Herrera; Beatriz was the transferee from Margarita of Lot Nos. 45, 46. 47, 48 and 49, Block 50; one of the lots transferred to Beatriz, e.g. Lot 47, with an area of 148 square meters is in the name of the protestant; protestant occupied the lots in question with the permission of the protestee; protestee is a resident of the Tunasan Homesite since birth; protestee was born on the lots in question; protestee left the place only after marriage but resided in a lot situated in the same Tunasan Homesite; her (protestee) son Roberto Herrera has been occupying the lots in question; he has been there even before the death of the late Margarita Herrera; on October 7, 1960, Margarita Herrera executed a “Sinumpaang Salaysay” whereby she waived or transferred all her rights and interest over the lots in question in favor of protestee; and protestee had paid the lots in question in full on March 8, 1966 with the defunct Land Tenure Administration.

This Office finds that protestee has a better preferential right to purchase the lots in question.”

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x x x

On February 1, 1987, Francisca Herrera died. Her heirs executed an extra judicial settlement of her estate which they submitted to the NHA. Said transfer of rights was approved by the NHA. The NHA executed several deeds of sale in favor of the heirs of Francisca Herrera and titles were issued in their favor. Thereafter, the heirs of Francisca Herrera directed Segunda Mercado-Almeida to leave the premises that she was occupying.

Feeling aggrieved by the decision of the Office of the President and the resolution of the NHA, private respondents Segunda Mercado-Almeida sought cancellation of the titles issued in favor of the heirs of Francisca. She filed a Complaint on February 8, 1988 for “Nullification of Government Lot’s Award,” with the Regional Trial Court of San Pedro, Laguna, Branch 31.

In her complaint, private respondent Almeida invoked her forty-year occupation of the disputed properties, and re-raised the fact that Francisca Herrera’s declaration of self-adjudication has been adjudged as a nullity because the other heirs were disregarded. The defendant heirs of Francisca Herrera alleged that the complaint was barred by laches and that the decision of the Office of the President was already final and executory. They also contended that the transfer of purchase of the subject lots is perfectly valid as the same was supported by a consideration and that Francisca Herrera paid for the property with the use of her own money. Further, they argued that plaintiff’s occupation of the property was by mere tolerance and that they had been paying taxes thereon.

The Regional Trial court issued an Order dated June 14, 1988 dismissing the case for lack of jurisdiction. The Court of Appeals in a Decision dated June 26, 1989 reversed and held that the Regional Trial Court had jurisdiction to hear and decide the case involving “title and possession to real property within its jurisdiction.” The case was then remanded for further proceedings on the merits.

x x x

On March 9, 1998, the Regional Trial Court rendered a decision setting aside the resolution of the NHA and the decision of the Office of the President awarding the subject lots in favor of Francisca Herrera. It declared the deeds of sale executed by the NHA in favor of Herrera’s heirs null and void. The Register of Deeds of Laguna, Calamba Branch, was ordered to cancel the Transfer Certificate of title issued. x x.

The Regional Trial Court ruled that the “Sinumpaang Salaysay” was not an assignment of rights but a disposition of property which shall take effect upon death. It then held that the said document must first be submitted to probate before it can transfer property.

On August 28, 20203, the Court of Appeals affirmed the decision of the Regional Trial Court, viz:

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“There is no dispute that the right to repurchase the subject lots was awarded to Margarita Herrera in 1959. There is also no dispute that Margarita executed a “Sinumpaang Salaysay” on October 7, 1960. Defendant NHA claims that the “Sinumpaang Salaysay” is, in effect, a waiver or transfer of rights and interest over the subject lots in favor of Francisca Herrera. This Court is disposed to believe otherwise. After a perusal of the “Sinumpaang Salaysay” of Margarita Herrera, it can be ascertained from its wordings take in their ordinary and grammatical sense that the document is a simple disposition of her estate to take effect after her death. Clearly, the Court finds that the “Sinumpaang Salaysay” is a will of Margarita Herrera. Evidently, if the intention of Margarita Herrera was to merely assign her right over the lots to her daughter Francisca Herrera, she should have given her “Sinumpaang Salaysay” to the defendant NHA or to Francisca Herrera for submission to the defendant NHA after the full payment of the purchase price of the lots or even prior thereto but she did not. Hence it is apparent that she intended the “Sinumpaang Salaysay” to be her last will and not an assignment of rights as what the NHA in its resolution would want to make it appear. The intention of Margarita Herrera was shared no less by Francisca Herrera who after the former’s demise executed n August 22, 1974 a Deed of Self-Adjudication claiming that she is her sole and legal heir. It was only when said deed was questioned in court by the surviving heirs of Margarita Herrera’s other daughter, Beatriz Mercado, that Francisca Herrera filed an application to purchase the subject lots and presented the “Sinumpaang Salaysay” stating that it is a deed of assignment of rights.”

x x x

The petitioner further argues that assuming that the “Sinumpaang Salaysay” is a will, it could not bind the NHA. That insofar as the NHA is concerned, it is an evidence that the subject lots were indeed transferred by Margarita Herrera, the original awardee, to Francisca Herrera was then applying to purchase the same before it.

We are not impressed. When the petitioner received the “Sinumpaang Salaysay”, it should have noted that the effectivity of said document commences at the time of death of the author of the instrument; in her words “sakaling ako’y bawian na ng Dios ng aking buhay….” Hence, in such period, all the interests of the person should cease to be hers and shall be in the possession of her estate until they are transferred to her heirs by virtue of Article 774 of the Civil Code which provides that:

x x x

By considering the document, petitioner NHA should have noted that the original applicant has already passed away. Margarita Herrera passed away on October 27, 1971. The NHA issued its resolution on February 5, 1986. The NHA gave due course to the application made by Francisca Herrera without considering that the initial applicant’s death would transfer all her property rights and obligations to the estate including whatever interest she has or may have had over the disputed properties. To the extent of the interest that the original owner had over the property,

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the same should go to her estate. Margarita Herrera had an interest in the property and that interest should go to her estate upon her demise so as to be able to properly distribute them later to her heirs – in accordance with a will or by operation of law.

The death of Margarita Herrera does not extinguish her interest over the property. Margarita Herrera had an existing Contract to Sell with the NHA as the seller. Upon Margarita Herrera’s demise, this Contract to Sell was neither nullified nor revoked. This Contract to Sell was an obligation on both parties – Margarita Herrera and NHA. Obligations are transmissible. Margarita Herrera’s obligation to pay became transmissible at the time of her death either by will or by operation of law.

If we sustain the position of the NHA that this document is not a will, then the interests of the decedent should transfer by virtue of an operation of law and not by virtue of a resolution of the NHA. For as it stands, NHA cannot make another contract to sell to other parties of a property already initially paid for by the decedent. Such would be an act contrary to the law on succession and the law on sales and obligations.

When the original buyer died, the NHA should have considered the estate of the decedent as the next “person” likely to stand in to fulfill the obligation to pay the rest of the purchase price. The opposition of other heirs to the repurchase by Francisca Herrera should have put the NHA on guard as to the award of the lots. Further, the Decision in the said Civil Case No. B-1263 (questioning the Deed of Self-Adjudication) which rendered the deed therein null and void should have alerted the NHA that there are other heirs to the interests and properties of the decedent who may claim the property after a testate or intestate proceeding is concluded. The NHA therefore acted arbitrarily in the award of the lots.

We need not delve into the validity of the will. The issue is for the probate court to determine, We affirm the Court of Appeals and the Regional Trial Court which noted that it has an element of testamentary disposition where (1) it devolved and transferred property; (2) the effect of which shall transpire upon the death of the instrument maker.

IN VIEW THEREOF, the petition of the National Housing Authority is DENIED. The decision of the Court of Appeals in CA-G.R. No. 68370 dated August 28, 2003, affirming the decision of the Regional Trial Court of San Pedro, Laguna in Civil Case No, B-2780 dated March 9, 2998 is hereby AFFIRMED.

No cost.

SO ORDERED.

Sandoval-Gutierrez, Corona, Azcuna and Garcia, JJ., concur,

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NAZARENO v COURT OF APPEALSG.R. No. 138842, 18 October 2000

343 SCRA 637

The estate of a deceased person is a juridical entity that has a personality of its own. It therefore has a right to recover property belonging to it that were improperly disposed.

Mendoza, J.:

x x x

The facts are as follows:

Maximino Nazareno Sr. and Aurea Poblete were husband and wife. Aurea died on April 15, 1970 while Maximino Sr. died on December 8, 1980. They had five children, namely, Natividad, Romeo, Jose, Pacifico and Maximino Jr. Natividad and Maximino Jr. are the petitioners in this case, while the estate of Maximino Sr., Romeo and his wife Eliza Nazareno are the respondents.

During their marriage, Maximino Sr. and Aurea Poblete acquired properties in Quezon City and in the Province of Cavite. It is the ownership of some of these properties that is in question in this case.

It appears that after the death of Maximino Sr., Romeo filed an intestate case in the Court of First Instance of Cavite x x x. Romeo was appointed administrator of his father’s estate.

In the course of the intestate proceedings, Romeo discovered that his parents had executed several deeds of sale conveying a number of real properties in favor of his sister Natividad. One of the deeds involved six lots in Quezon City which were allegedly sold by Maximino Sr. with the consent of Aurea, to Natividad on January 29, 1970 for the total amount of P47,800.00.

x x x

Among the lots covered by the above Deed of Sale is Lot 3-B which is registered under TCT No. 140946. This lot has been occupied by Romeo, his wife Eliza, and by Maximino Jr. since 1969. Unknown to Romeo, Natividad sold Lot 3-B on July 31, 1982 to Maximino Jr. for which reason the latter was issued TCT No. 293701 x x x.

When Romeo found out about the sale to Maximino Jr., he and his wife Eliza locked Maximino out of the house. On August 4, 1983, Maximino Jr. brought an action for recovery of possession and damages x x x. On December 12, 1986, the trial court ruled in favor of Maximino Jr. x x x The Court of Appeals affirmed the decision of the trial court.

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On June 15, 1988, Romeo in turn filed, on behalf of the estate of Maximino Sr. the present case for annulment of sale with damages against Natividad and Maximino Jr. x x x Romeo sought the declaration of nullity of the sale made on January 29, 1970 to Natividad and that made on July 31, 1982 to Maximino Jr. on the ground that both sales were void for lack of consideration.

On March 1, 1990, Natividad and Maximino Jr. filed a third party complaint against the spouses Romeo and Eliza. They alleged that Lot 3, which was included in the Deed of Absolute Sale of January 29, 1970 to Natividad, had been surreptitiously appropriated by Romeo by securing for himself a new title (TCT No 277968) in his name. They alleged that Lot 3 is being leased by the spouses Romeo and Eliza to third persons. They therefore sought the annulment of the transfer to Romeo and the cancellation of his title, the eviction of Romeo and his wife Eliza and all persons claiming rights from Lot 3, and the payment of damages.

The issues having been joined, the case was set for trial. Romeo presented evidence to show that Maximino and Aurea Nazareno never intended to sell the six lots to Natividad and that Natividad was only to hold the said lots in trust for her siblings. He presented the Deed of Partition and Distribution dated June 28, 1962 executed by Maximino Sr. and Aurea and duly signed by all of their children, except Jose, who was then abroad and represented by their mother Aurea. By virtue of this deed, the nine lots subject of this Deed of partition were assigned by raffle as follows:

1. Romeo – Lot 25-L (642 sq. m.)2. Natividad – Lots 23 (312 sq.m.) and 24 (379 sq.m.)3. Maximino Jr. – Lots 6 (338 sq.m.) and 7 (338 sq.m.)4. Pacifico – Lots 13 (360 sq.m.) and 14 (360 sq. m.)5. Jose – Lots 10 (360 sq. m.) and 11 (360 sq. m.)

Romeo received the title to Lot 25-L under his name, while Maximino Jr. received Lots 6 and 7 through a Deed of Sale dated August 16, 1966 for the amount of P9,500. Pacifico and Jose’s shares were allegedly given to Natividad, who agreed to give Lots 10 and 11 to Jose, in the event the latter come back from abroad. Natividad’s share, on the other hand, was sold to third persons because she allegedly did not like the location of the two lots. But, Romeo said, the money realized from the sale was given to Natividad.

Romeo also testified that Lot 3-B was bought for him by his father, while Lot 3 was sold to him for P7,000.00 by his parents on July 4, 1969. However, he admitted that a document was executed by his parents transferring six properties in Quezon City, i.e., Lots 3, 3-B, 10, 11, 13 and 14, to Natividad.

Romeo further testified that, although the deeds of sale executed by his parents in their favor stated that the sale was for a consideration, they never really paid any amount for the supposed sale. The transfer was made in this manner in order to avoid the payment of inheritance taxes. Romeo denied stealing Lot 3 from his sister

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but instead claimed that the title to said lot was given to him by Natividad in 1981 after their father died.

Natividad and Maximino Jr. claimed that the Deed of Partition and Distribution executed in 1962 was not really carried out. Instead, in December of 1969, their parents offered to sell to them the six lots in Quezon City, i.e., Lots 3, 3-B, 10, 11, 13 and 14. However, it was only Natividad who bought the six properties because she was the only one financially able to do so. Natividad admitted that Romeo and the latter’s wife were occupying Lot 3-B at that time and that she did not tell the latter about the sale she had made to Maximino Jr.

Natividad said that she had the title to Lot 3 but it somehow got lost. She could not get an original copy of the said title because the records of the Registrar of Deeds had been destroyed by fire. She claimed she was surprised to learn that Romeo was able to obtain a title to Lot 3 in his name.

Natividad insisted that she paid the amount stated in the Deed of Absolute Sale x x x. She alleged that their parents had sold these properties to their children instead of merely giving the same to them in order to impose on them the value of hard work.

Natividad accused Romeo of filing this case to harass her after Romeo lost in the action for recovery of possession which had been brought against him by Maximino Jr. It appears that before the case filed by Romeo could be decided, the Court of Appeals rendered a decision affirming the trial court’s decision in favor of Maximino Jr.

On August 10, 1992, the trial court rendered a decision, the dispositive portion of which states:

WHEREFORE, judgment is hereby rendered declaring the nullity of the Deed of Sale dated January 29, 1970. Except as to Lots 3, 3-B, 13 and 14 which had passed on to third persons, the defendant Natividad shall hold the rest of in trust for Jose Nazareno to whom the same had been adjudicated. The Register of Deeds of Quezon City is directed to annotate this judgment on Transfer Certificate of Title Nos. 162735 and 162736 as a lien in the titles of Natividad P. Nazareno.

x x x

On appeal to the Court of Appeals, the decision of the trial court was modified in the sense that titles to Lot 3 (in the name of Romeo Nazareno) and Lot 3-B (in the name of Maximino Nazareno, Jr.), as well as to Lots 10 and 11 were cancelled and ordered restored to the estate of maximino Nazareno Sr.

x x x

Petitioners raised the following issues:

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x x x

Second, Petitioners make capital of the fact that in CA. G.R. CV No. 12932, which was declared final by this Court in G.R. No. 107684, the Court of Appeals upheld the right of Maximino Jr. to recover possession of Lot 3-B. In that case, the Court of Appeals held:

x x x

To be sure, that case was for recovery of possession based on the ownership of Lot 3-B. The parties in that case were Maximino Jr., as plaintiff, and the spouses Romeo and Eliza, as defendants. On the other hand, the parties in the present case for annulment of sale are the estate of Maximino Sr., as plaintiff, and Natividad and Maximino Jr., as defendants. Spouses Romeo and Eliza were named third party defendants after a third party complaint was filed by Natividad and Maximino Jr. As already stated, however, this third party complaint concerned Lot 3 and not Lot 3-B.

The estate of a deceased person is a juridical entity that has a personality of its own. Though Romeo represented at one time the estate of Maximino Sr., the latter has a separate and distinct personality from the former. Hence, the judgment in CA-GR CV No. 12932 regarding the ownership of Maximino Jr. over Lot 3-B binds Romeo and Eliza only, and not the estate of Maximino Sr. which also has a right to recover properties which were wrongfully disposed.

Furthermore, Natividad’s title was clearly not an issue in the first case. In other words, the title to the other five lots subject of the present deed of sale was not in issue in that case. If the first case resolved anything, it was the ownership of Maximino Jr. over Lot 3-B alone.

x x x

WHEREFORE, the decision of the Court of Appeals is AFFIRMED.

SO ORDERED.

Bellosillo (Chairman), Quisumbing, and de Leon, JJ., concur.

15

PACIO v BILLONNo. L-15088, 31 January 1961

1 SCRA 384

Properties not validly conveyed by a person during his lifetime will form part of his estate upon his demise. Pacio holds that a parcel of land which was not validly donated (propter nuptias) by the husband to the wife did not leave his patrimony, and therefore formed part of his inheritance upon his demise.

Bengzon, J.:

In 1901, Flaviano Pacio married Severa Jucutan. Herein defendants were their children. Severa died in 1930; and thereafter Flaviano married the plaintiff Toribia Fontanilla who bore him the other four plaintiffs.

The dispute between the parties in the La Union court of first instance concerned two parcels of land which defendants allegedly retained without any right thereto. The litigants later agreed to a partition of the first parcel x x x.

As to the second parcel, a hearing was held, and it was awarded to the defendants on the ground that it had been donated propter nuptias to Severa in 1901 by Flaviano Pacio, who was then admittedly the owner.

According to the stipulation of facts:

"x x a donation propter nuptias was made in a private instrument by Flaviano Pacio in favor of his first wife Severa Jucutan, before their marriage on June 4, 1901 x x x;

3. That the land continued to be declared in the name of Flaviano Pacio notwithstanding this donation propter nuptias until 1956 when the same was changed in the name of the defendants Brigida, Manuela and Dominga, all surnamed Pacio;

4. That land taxes were paid in the name of Flaviano Pacio as shown by tax receipts for the years 1931, 1933, 1934, 1935, 1940, 1942, 1943, 1944, 1945, 1946, 1947, 1948, 1949, 1955 and 1956;

5. That Flaviano Pacio died on November 2, 1951;

x x x

9. That while the plaintiffs and the defendants lived together during the said period, they equally shared all the harvests reaped from the land in litigation;

10. That the land taxes were paid on both parcels (a) and (b) in the names of the defendants staring with the year 1957 when the tax declarations were changed into their names on December 20, 1956; x x x."

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The plaintiffs-appellants contend that the donation was void, because it was not made in a public instrument. They are right. Art. 633 of the Spanish Civil Code states that "in order that a donation of real property be valid, it must be made in a public instrument in which the property donated must be specifically described and the amount of the encumbrances to be assumed by the donee expressed x x x."

And this Court had held that a donation propter nuptias of real property written on a private instrument is not valid even between the parties.

The trial judge said "a donation propter nuptias in order to be valid between the donor and the donee, need not be embodied in a public instrument as such formality is only necessary for registration purposes in the office of the Register of Deeds" so as to bind third person. He was obviously applying the new principles in the Philippine Civil Code effecting in the year 1950. But in 1901 when the gift was made, the law was contained in the Spanish Civil Code, according to which, even between the parties, the donation must be in a public instrument.

Realizing the force of plaintiffs' point, defendants emphasized that the deed of donation constituted a title on which to base acquisitive prescription, inasmuch as Severa possessed the land from 1901 to March 1930 when she died. The stipulation of facts says nothing about such possession. True, there was a witness, Monica Pacio, who testified; but she stated that both husband and wife held possession of the land, and the stipulation says that from 1933 the parties shared the harvests equally. At any rate, it is obvious that normally, prescription by adverse possession cannot exist between husband and wife. (See Article 1109 Civil Code of the Philippines.)

Espique v Espique on which the appellees rely is not controlling because the prescription there mentioned did not refer to possession by the wife as against her husband.

It follows that Flaviano Pacio continued to be the owner of the land as the donation had no effect and there was no prescription. Upon his death, the land became the joint property of his children by the first and second marriages, subject of course to the rights of his surviving spouse, the plaintiff Toribia Fontanilla.

Reversing the decision in so far as this parcel is concerned, we hereby order the return of the expediente to the court below for further proceedings on partition in accordance with these views.

Paras, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes and Dizon, JJ., concur.

17

USON v DEL ROSARIO, et al.No. L-4693, 29 January 1953

92 Phil 530

Article 777 provides that the right to the succession are transmitted from the moment of the death of the decedent. Accordingly, Uson holds that the inheritance pertains to the heirs from the moment of the death of the ancestor as completely as if the ancestor had executed and delivered to the heirs a deed for the same before his death. This transmission takes place by operation of law.

Bautista Angelo, J.:

This is an action for the recovery of the ownership and possession of five (5) parcels of land situated in the Municipality of Labrador, Province of Pangasinan, filed by Maria Uson against Maria del Rosario and her four children named, Concepcion, Conrado, Dominador, and Faustino, surnamed Nebreda, who are all of minor age, before the Court of First Instance of Pangasinan.

Maria Uson was the lawful wife of Faustino Nebreda who upon his death in 1945 left the lands involved in this litigation. Faustino Nebreda left no other heir except his widow, Maria Uson. However, plaintiff claims that when Faustino Nebreda died in 1945, his common-law wife, Maria del Rosario, took possession illegally of said lands thus depriving her of their possession and enjoyment.

Defendants in their answer set up as special defense that on February 21, 1931, Maria Uson and her husband, the late Faustino Nebreda, executed a public document whereby they agreed to separate as husband and wife and, in con-sideration of their separation, Maria Uson was given a parcel of land by way of alimony and in return she renounced her right to inherit any other property that may be left by her husband upon his death.

After trial, at which both parties presented their respective evidence, the court rendered decision ordering the defendants to restore to the plaintiff the ownership and possession of the lands in dispute, without special pronouncement as to costs. Defendants interpose the present appeal.

There is no dispute that Maria Uson, plaintiff-appellee, is the lawful wife of Faustino Nebreda, former owner of the five parcels of land litigated in this present case. There is likewise no dispute that Maria del Rosario, one of the defendants-appellants, was merely a common-law wife of the late Faustino Nebreda with whom she had four illegitimate children, her now co-defendants. It likewise appears that Faustino Nebreda died in 1945 much prior to the effectivity of the new Civil Code. With this background, it is evident that when Faustino Nebreda died in 1945, the five parcels of land he was seized of at the time passed from the moment of his death to his only heir, his widow Maria Uson (Article 657, Civil Code). As this Court aptly said, "the property belongs to the heirs at the moment of the death of the ancestor as completely as if the ancestor had executed and delivered to them a deed for the same

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before his death" (Ilustre v Alaras Frondosa, 17 Phil 321). From that moment, therefore, the rights of inheritance of Maria Uson over the lands in question became vested.

The claim of the defendants that Maria Uson had relinquished her right over the lands in question because she expressly renounced to inherit any future property that her husband may acquire and leave upon his death in the deed of separation they had entered into on February 21, 1931, cannot be entertained for the simple reason that future inheritance cannot be the subject of a contract nor can it be renounced (1 Manresa, 124 6th ed; Tolentino on Civil Code, p. 12; Osorio v Osorio and Ynchausti Steamship Co., 41 Phil 531).

x x x

As regards the claim that Maria Uson, while her deceased husband was lying in state, in a gesture of pity or compassion, agreed to assign the lands in question to the minor children for the reason that they were acquired while the deceased was living with their mother, and Maria Uson wanted to assuage somewhat the wrong she had done to them, this much can be said: apart from the fact that this claim is disputed, we are of the opinion that said assignment, if any, partakes of the nature of a donation of real property, inasmuch as it involves no material consideration, and in order that it may be valid, it shall be made in a public document and must be accepted either in the same document or in a separate one (Article 633, old Civil Code). Inasmuch as this essential formality has not been followed, it results that the alleged assignment or donation has no valid effect.

Wherefore, the decision appealed from is affirmed, without costs.

Paras, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes, Jugo and Labrador, JJ., concur.

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BONILLA v BARCENANo. L-41715, 18 June 1976

71 SCRA 491

The transmission of the hereditary estate from the decedent to the heirs takes place from the moment of the death of the decedent. A prior judicial declaration of heirship is not necessary to perfect the transmission. Bonilla holds that claims to or rights over property which were initiated by the decedent during his lifetime by appropriate court proceedings are not extinguished by his death. These claims or rights over property are transmitted to his heirs upon his death.

Martin, J.:

x x x

On March 31, 1975 Fortunata Barcena, mother of minors Rosalio Bonilla and Salvacion Bonilla and wife of Ponciano Bonilla, instituted a civil action in the Court of First Instance of Abra, to quiet title over certain parcels of land located in Abra.

x x x

On August 4, 1975, the defendants filed another motion to dismiss the complaint on the ground that Fortunata Barcena is dead and, therefore, has no legal capacity to sue. Said motion to dismiss was heard on August 14, 1975. In said hearing, counsel for the plaintiff confirmed the death of Fortunata Barcena and asked for the substitution by her minor children and her husband, the petitioners herein; but the court after the hearing immediately dismissed the case on the ground that a dead person cannot be a real party in interest and has no legal personality to sue.

x x x

Hence, this petition for review.

The Court reverses the respondent Court and sets aside its order dismissing the complaint in Civil Case No. 856 and its orders denying the motion for reconsideration of said order of dismissal. While it is true that the person who is dead cannot sue in court, yet he can be substituted by his heirs in pursuing the case up to its completion. The records of this case show that the death of Fortunata Barcena took place on July 9, 1975 while the complaint was filed on March 31, 1975. This means that when the complaint was filed on March 31, 1975, Fortunata Barcena was still alive, and therefore, the Court had acquired jurisdiction over her person. If thereafter she died, the Rules of Court prescribe the procedure whereby a party who died during the pendency of the proceeding can be substituted.

Under Section 16, Rule 3 of the Rules of Court, "whenever a party to a pending case dies x x x it shall be the duty of his attorney to inform the court promptly of such death x x x and to give the name and residence of his executor,

20

administrator, guardian or other legal representatives." This duty was complied with by the counsel for the deceased plaintiff when he manifested before the respondent Court that Fortunata Barcena died on July 9, 1975 and asked for the proper substitution of the parties in the case. The respondent Court, however, instead of allowing the substitution dismissed the complaint on the ground that a dead person has no legal personality to sue. This is a grave error. Article 777 of the Civil Code provides "that the rights to the succession are transmitted from the moment of the death of the decedent." From the moment of the death of the decedent, the heirs become the absolute owners of his property, subject to the rights and obligations of the decedent, and they cannot be deprived of their rights thereto except by the methods provided for by law. The moment of death is the determining factor when the heirs acquire a definite right to the inheritance whether such right be pure or contingent. The right of the heirs to the property of the deceased vests in them even before judicial declaration of their being heirs in the testate or intestate proceedings. When Fortunata Barcena, therefore, died her claim or right to the parcels of land in litigation in Civil Case No. 856, was not extinguished by her death, but was transmitted to her heirs upon her death. Her heirs have thus acquired interest in the properties in litigation and became parties in interest in the case. There is, therefore, no reason for the respondent Court not to allow their substitution as parties in interest for the deceased plaintiff.

x x x The question as to whether an action survives or not depends on the nature of the action and the damage sued for. In the causes of action which survive, the wrong complained affects primarily and principally property and property rights, the injuries to the person being merely incidental; while in the causes of action which do not survive, the injury complained of is to the person, the property and rights to property affected being incidental. Following the foregoing criterion, the claim of the deceased plaintiff which is an action to quiet title over the parcels of land in litigation, affects primarily and principally property and property rights, and therefore, is one that survives even after her death. It is therefore the duty of the respondent Court to order the legal representative of the deceased plaintiff to appear and to be substituted for her. But what the respondent Court did, upon being informed by the counsel for the deceased plaintiff that the latter was dead, was to dismiss the complaint. This should not have been done for under the same Section 17, Rule 3 of the Rules of Court, it is even the duty of the Court, if the legal representative fails to appear, to order the opposing party to procure the appointment of a legal representative of the deceased. In the instant case, the respondent Court did not have to bother ordering the opposing party to procure the appointment of a legal representative of the deceased because her counsel has not only asked that the minor children be substituted for her, but also suggested that their uncle be appointed as guardian ad litem for them because their father is busy in Manila earning a living for the family. But the respondent Court refused the request for substitution on the ground that the children were still minors and cannot sue in court. This is another grave error because the respondent Court ought to have known that under the same Section 17, Rule 3 of the Rules of Court, the court is directed to appoint a guardian ad litem for the minor heirs. Precisely in the instant case, the counsel for the deceased plaintiff has suggested to the respondent Court that the uncle of the minors be appointed to act as

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guardian ad litem for them. Unquestionably, the respondent Court has gravely abused its discretion in not complying with the clear provision of the Rules of Court in dismissing the complaint x x x and refusing the substitution of parties in the case.

IN VIEW OF THE FOREGOING, the order of the respondent Court dismissing the complaint in Civil Case No. 856 of the Court of First Instance of Abra, and the motions for reconsideration of the order of dismissal of said complaint are set aside and the respondent Court is hereby directed to allow the substitution of the minor children, who are the petitioners therein, for the deceased plaintiff, and to appoint a qualified person as guardian ad litem for them. Without pronouncement as to costs. SO ORDERED.

Teehankee (Chairman), Makasiar, Esguerra, and Munoz-Palma, JJ., concur.

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BUTTE v MANUEL UY & SONS, INC.No. L-15499, 18 February 1962

4 SCRA 526

The right of legal redemption under Article 1620 of the Civil Code is property. Thus, where a decedent dies without having exercised a right of redemption (and provided it has not expired), the said right shall be transmitted to his heirs upon his death. In this event, the right of redemption is part of the inheritance. However, where the right of redemption was acquired after the death of the decedent, the same pertains to the heirs directly in their individual capacities, and not derivatively from the decedent. Butte makes a clear distinction as to when the right of redemption is part of the hereditary estate, and when it is not. Accordingly, Butte clarifies the issue as to who may exercise the right of redemption.

While there is no dispute that the decision arrived at is correct, the matter of tender of the redemption price and the fact of its judicial consignation invite further scrutiny. Was the tender of PNB cashier's check to Manuel Uy & Sons, Inc. a valid and proper tender of payment? Was Angela Butte required under the law to make a judicial consignation of the redemption price when Manuel Uy & Sons, Inc. refused to accept the same?

It would seem that the estate of Jose V. Ramirez was insolvent. If indeed it could be proved that the claims of the creditors far exceed the value of the assets, then none of the heirs would receive any part of the inheritance, as the same shall be liquidated to pay the creditors. In this eventuality, can any of the Ramirez heirs claim the right of redemption?

The motives of Angela Butte might also be looked into. Why was she eager to redeem the share sold by Garnier to Manuel Uy & Sons, Inc.? What is the immediate effect of her having redeemed the share sold to Manuel Uy & Sons, Inc.?

Reyes, J.B.L., J.:

It appears that Jose V. Ramirez, during his lifetime, was co-owner of a house and lot located at Sta. Cruz, Manila as shown by Transfer Certificate of Title No. 52789, issued in the name of the following co-owners: Marie Garnier vda. de Ramirez, 1/6; Jose V. Ramirez, 1/6; Jose E. Ramirez, 1/6; Belen T. Ramirez, 1/6; Rita de Ramirez, 1/6; and Jose Ma. Ramirez, 1/6.

On October 20, 1951, Jose V. Ramirez died. Subsequently Special Proceeding No. 15026 was instituted to settle his estate, that included the one-sixth (1/6) undivided share in the aforementioned property. And although his last will and testament, wherein he bequeathed his estate to his children and grandchildren and one-third (1/3) of the free portion to Mrs. Angela M. Butte, hereinafter referred to as plaintiff-appellant, has been admitted to probate, the estate proceedings are still pending up to the present on account of the claims of creditors which exceed the assets of the deceased. The Bank of the Philippine Islands was appointed judicial

23

administrator.

Meanwhile, on December 9, 1958, Mrs. Marie Garnier vda. de Ramirez, one of the co-owners of the late Jose V. Ramirez in the Sta. Cruz property, sold her undivided 1/6 share to Manuel Uy & Sons, Inc., defendant-appellant herein, for the sum of P500,000.00. After the execution by her attorney-in-fact, Mrs. Elsa R. Chambers, of an affidavit to the effect that formal notices of the sale had been sent to all possible redemptioners, the deed of sale was duly registered and Transfer Certificate of Title No. 52789 was canceled in lieu of which a new one was issued in the name of the vendee and the other co-owners.

On the same day (December 9, 1958), Manuel Uy & Sons, Inc. sent a letter to the Bank of the Philippine Islands as judicial administrator of the estate of the late Jose V. Ramirez, informing it of the above-mentioned sale. This letter, together with that of the bank, was forwarded by the latter to Mrs. Butte c/o her counsel x x x and having received the same on December 10, 1958, said law office delivered them to plaintiff-appellant's son, Mr. Miguel Papa, who in turn personally handed the letters to his mother, Mrs. Butte, on December 11 and 12, 1958. Aside from this letter of defendant-appellant, the vendor x x x wrote said bank on December 11, 1958 confirming vendee's letter regarding the sale of her 1/6 share in the Sta. Cruz property for the sum of P500,000.00. Said letter was received by the bank on December 15, 1958 and having endorsed it to Mrs. Butte's counsel, the latter received the same on December 16, 1958. Appellant received the letter on December 19, 1958.

On January 15, 1959, Mrs. Angela M. Butte, thru Atty. Resplandor Sobretodo, sent a letter and a Philippine National Bank cashier's check in the amount of P500,000.00 to Manuel Uy & Sons, Inc. offering to redeem the 1/6 share sold by Mrs. Marie Garnier vda. de Ramirez. This tender having been refused, plaintiff on the same day consigned the amount in court and filed the corresponding action for legal redemption. Without prejudice to the determination by the court of the reasonable and fair market value of the property sold which she alleged to be grossly excessive, plaintiff prayed for conveyance of the property, and for actual, moral and exemplary damages.

After the filing by the defendant of its answer containing a counterclaim, and plaintiff's reply thereto, trial was held after which the court rendered decision on May 13, 1959 dismissing plaintiff's complaint on the grounds that she has no right to redeem the property and that, if ever she had any, she exercised the same beyond the statutory 30-day period for legal redemption provided by the Civil Code. The counterclaim of defendant for damages was likewise dismissed for not being sufficiently established. Both parties appealed directly to this Court.

Based on the foregoing facts, the main issues posed in this appeal are: (1) whether or not plaintiff-appellant, having been bequeathed 1/3 of the free portion of the estate of Jose V. Ramirez, can exercise the right of legal redemption over the 1/6 share sold by Mrs. Marie Garnier vda. de Ramirez, despite the presence of the judicial administrator and pending the distribution of her share in the testate proceedings; x x

24

x. The applicable law involved in the present case is contained in Articles 1620,

p. 1 and 1623 of the Civil Code of the Philippines, which read as follows:

"Art. 1620. A co-owner of a thing may exercise the right of redemption in case the shares of all the other co-owners or of any of them are sold to a third person. If the price of the alienation is grossly excessive, the redemptioner shall pay only a reasonable one.

"Should two or more co-owners desire to exercise the right of redemption, they may only do so in proportion to the share they may respectively have in the thing owned in common."

"Article 1623. The right of legal pre-emption or redemption shall not be exercised except within thirty days from the notice in writing by the respective vendor, or by the vendor, as the case may be. The deed of sale shall not be recorded in the Registry of Property, unless accompanied by an affidavit of the vendor that he has given written notice thereof to all possible redemptioners.

"The right of redemption of co-owners excludes that of adjoining owners."

That the appellant Angela M. Butte is entitled to exercise the right of legal redemption is clear. As testamentary heir of the estate of J. V. Ramirez, she and her co-heirs acquired an interest in the undivided one-sixth (1/6) share owned by her predecessor (causante) in the Santa Cruz property, from the moment of the death of the aforesaid co-owner, J. V. Ramirez. By law, the rights to the succession of a deceased person are transmitted to his heirs from the moment of his death, and the right of succession includes all property rights and obligations that survive the decedent.

"Art. 776. The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death."

"Art. 777. The rights to the succession are transmitted from the moment of the death of the decedent.”

"Art. 947. The legate or devisee acquires a right to the pure and simple legacies and devises from the death of the testator, and transmits it to his heirs."

The principle of transmission as of the time of the predecessor's death is basic in our Civil Code, and is supported by other related articles. Thus, the capacity of the heir is determined as of the time the decedent died (Art. 1034); the legitime is to be computed as of the same moment (Art. 908); and so is the inofficiousness of the donations inter vivos (Art. 771). Similarly, the legacies of credit and remission are valid only in the amount due and outstanding at the death of the testator (Art. 935), and the fruits accruing after that instant are deemed to pertain to the legatee (Art. 948).

As a consequence of this fundamental rule of succession, the heirs of Jose V.

25

Ramirez acquired his undivided share in the Sta. Cruz property from the moment of his death, and from that instant, they became co-owners in the aforesaid property, together with the original surviving co-owners of their decedent (causante). A co-owner of an undivided share is necessarily a co-owner of the whole. Wherefore, any one of the Ramirez heirs, as such co-owner, became entitled to exercise the right of legal redemption (retracto de comuneros) as soon as another co-owner (Marie Garnier vda. de Ramirez) had sold her undivided share to a stranger, Manuel Uy & Sons, Inc. This right of redemption vested exclusively in consideration of the redemptioner's share which the law nowhere takes into account.

The situation is in no wise altered by the existence of a judicial administrator of the estate of Jose V. Ramirez. While under the Rules of Court the administrator has the right to the possession of the real and personal estate of the deceased, so far as needed for the payment of the decedent's debts and the expenses of administration (Sec. 3, Rule 85), and the administrator may bring or defend actions for the recovery or protection of the property or rights of the deceased (Sec. 2, Rule 88), such rights of possession and administration do not include the right of legal redemption of the undivided share sold to Uy & Company by Mrs. Garnier Ramirez. The reason is obvious: this right of legal redemption only came into existence when the sale to Uy & Sons, Inc. was perfected eight (8) years after the death of Jose V. Ramirez, and formed no part of his estate. The redemption right vested in the heirs originally, in their individual capacity, they did not derivatively acquire it from their decedent, for when Jose V. Ramirez died, none of the other co-owners of the Sta. Cruz property had as yet sold his undivided share to a stranger. Hence there was nothing to redeem and no right of redemption; and if the late Ramirez had no such right at his death, he could not transmit it to his own heirs. Much less could Ramirez acquire such right of redemption eight years after his death, when the sale to Uy & Sons, Inc. was made, because death extinguishes civil personality, and therefore, all further juridical capacity to acquire or transmit rights and obligations of any kind (Civil Code, Art. 42).

It is argued that the actual share of appellant Mrs. Butte in the estate of Jose V. Ramirez has not been specifically determined as yet, that it is still contingent; and that the liquidation of the estate of Jose V. Ramirez may require the alienation of the decedent's undivided portion in the Sta. Cruz property, in which event Mrs. Butte would have no interest in said undivided portion. Even if it were true, the fact would remain that so long as that undivided share remains in the estate, the heirs of Jose V. Ramirez own it, as the deceased did own it before his demise, so that his heirs are now as much co-owners of the Sta. Cruz property as Jose V. Ramirez was himself a co-owner thereof during his lifetime. As co-owners of the property, the heirs of Jose V. Ramirez, or any one of them, became personally vested with the right of legal redemption as soon as Mrs. Garnier sold her own pro-indiviso interest to Uy & Sons. Even if subsequently, the undivided share of Ramirez (and of his heirs) should eventually be sold to satisfy the creditors of the estate, it would not destroy their ownership of it before the sale, but would only convey or transfer it as in turn sold (if it actually is sold) to pay his creditors. Hence, the right of any of the Ramirez heirs to redeem the Garnier share will not be retroactively affected. All that the law requires is that the legal redemptioner should be a co-owner at the time the undivided share of

26

another co-owner is sold to a stranger. Whether or not the redemptioner will continue being a co-owner after exercising the legal redemption is irrelevant for the purposes of the law.

Nor can it be argued that if the original share of Ramirez is sold by the administrator, his heirs would stand in law as never having acquired that share. This would only be true if the inheritance is repudiated or the heir's quality as such is voided. But where the heirship is undisputed, the purchaser of hereditary property is not deemed to have acquired the title directly from the deceased Ramirez, because a dead man cannot convey title, nor from the administrator who owns no part of the estate; the purchaser can only derive his title from the Ramirez heirs, represented by the administrator, as their trustee or legal representative.

x x x

PREMISES CONSIDERED, the judgment appealed from is hereby reversed and set aside, and another one entered:

(a) Declaring the consignation of P500,000.00 made by appellant Angela Butte duly and properly made; x x x

(c) Ordering appellant Manuel Uy & Sons, Inc. to accept the consigned price and to convey to Angela M. Butte the undivided portion above-referred to within 30 days from the time our decision becomes final, and subsequently to account for the rentals and fruits of the redeemed share from and after January 15, 1958, until its conveyance; and x x x

Without findings as to costs.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Barrera and Dizon, JJ., concur. Paredes and de Leon, JJ. did not take part.

27

DE BORJA v VDA. DE BORJANo. L-28040, 18 August 1972

46 SCRA 577

The right to the inheritance is transferred to the heirs precisely at the moment of the death of the decedent. From such time, the heirs are deemed to be the owners of the same. De Borja confirms that from the moment of death of the decedent, the heirs begin to enjoy all the attributes of ownership, including the right to dispose (jus disponendi). De Borja holds that the pendency of the probate proceeding is no bar to the exercise of such proprietary rights, since ownership over the hereditary estate has vested in the heirs from the time of the death of the testator.

De Borja must be distinguished from the prohibition against disposicion captatoria in Article 875 of the Civil Code. Likewise, it must be reconciled with the provision of Article 784 which states that the making of a will is a strictly personal act of the testator.

Reyes, J.B.L., J.:

It is uncontested that Francisco de Borja, upon the death of his wife Josefa Tangco on 6 October 1940, filed a petition for the probate of her will which was docketed as Special Proceeding No. R-7866 of the Court of First Instance of Rizal, Branch I. The will was probated on 2 April 1941. In 1946, Francisco de Borja was appointed executor and administrator; in 1952, their son, Jose de Borja, was ap-pointed co-administrator. When Francisco died on 14 April 1954, Jose became the sole administrator of the testate estate of his mother, Josefa Tangco. While a widower, Francisco de Borja allegedly took unto himself a second wife, Tasiano Ongsingco. Upon Francisco's death, Tasiana instituted testate proceedings in the Court of First In-stance of Nueva Ecija, wherein in 1955 she was appointed special administratrix. The validity of Tasiana's marriage to Francisco was questioned in said proceeding.

The relationship between the children of the first marriage and Tasiana Ongsingco has been plagued with several court suits and counter-suits; including the three cases at bar, some eighteen (18) cases remain pending determination in the courts. he testate estate of Josefa Tangco alone has been unsettled for more than a quarter of a century. In order to put an end to all these litigations, a compromise agreement was entered into on 12 October 1963 by and between "the heir and son of Francisco de Borja by his first marriage, namely, Jose de Borja, personally and as administrator of the Testate Estate of Josefa Tangco," and "the heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco vda. de Borja, assisted by her lawyer, Atty. Luis Panaguiton, Jr." The terms and conditions of the compromise agreement are as follows:

A G R E E M E N T

THAT, it is the mutual desire of all the parties herein to terminate and settle, with finality, the various court litigations, controversies, claims, counterclaims, etc. between them in connection with the administration, settlement, partition,

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adjudication and distribution of the assets as well as liabilities of the estates of Francisco de Borja and Josefa Tangco, first spouse of Francisco de Borja.

THAT, with this end in view, the parties herein have agreed voluntarily and without any reservations, to enter into and execute this agreement under the following terms and conditions:

x x x

2. That Jose de Borja agrees and obligates himself to pay Tasiana Ongsingco vda. de Borja the total amount of Eight Hundred Thousand (P800,000) Philippine currency, in cash, which represent P200,000 as his share in the payment and P600,000 as pro-rata shares of the heirs Crisanto, Cayetano and Matilde, all surnamed de Borja, and this shall be considered as full and complete payment and settlement of her hereditary share in the estate of the late Francisco de Borja as well as the Estate of Josefa Tangco, Sp. Proc. No. 832-Nueva Ecija and Sp. Proc. No. 7866-Rizal respectively, and to any properties bequeathed or devised in her favor by the late Francisco de Borja by Last Will and Testament or by Donation Inter Vivos or Mortis Causa or purportedly conveyed to her for consideration or otherwise. The funds for this payment shall be taken from and shall depend upon the receipt of full payment of the proceeds of the sale of Jalajala "Poblacion".

3. That Taciana Ongsingco vda. de Borja hereby assumes payment of that particular obligation incurred by the late Francisco de Borja in favor of the Rehabilitation Finance Corporation, now Development Bank of the Philippines, amounting to approximately P30,000 and also assumes payment of her 1/5 share of the estate and inheritance taxes on the estate of the late Francisco de Borja, or the sum of P3,500 more or less, which shall be deducted by the buyer of Jalajala "Poblacion" from the payment to be made to Taciana Ongsingco vda. de Borja under paragraph 2 of this Agreement and paid directly to the Development Bank of the Philippines and the heirs-children of Francisco de Borja.

x x x

5. In consideration of above payment to Taciana Ongsingco vda. de Borja, Jose de Borja personally and as administrator of the Testate Estate of Josefa Tangco, and Taciano Ongsingco vda. de Borja, for themselves and for the heirs, successors, executors, administrators and assigns, hereby forever mutually renounce, withdraw, waive, remise, release and discharge any and all manner of action or actions, cause or causes of actions, suits, debts, sum or sums of money, accounts, damages, claims and demands whatsoever, in law or in equity, which they ever had, or now have or may have against each other, more specifically Sp. Proc. Nos. 7866 and 1955 CFI-Rizal, and Sp. Proc. No. 832-Nueva Ecija, Civil Case No. 3033, CFI-Nueva Ecija, and Civil Case No. 7452 CFI-Rizal, as well as the case filed against Manuel Quijal for perjury with the Provincial Fiscal of Rizal, the intention being to completely, ab-solutely and finally release each other, their heirs, successors and assigns, from any and all liability arising wholly or partially, directly or indirectly, from the administration, settlement, and distribution of the assets as well as liabilities of

29

the estates of Francisco de Borja and Josefa Tangco, first spouse of Francisco de Borja, and lastly, Tasiana Ongsingco vda. de Borja expressly and specifically renounce absolutely her rights as heir over any hereditary share in the estate of Francisco de Borja.

x x x."

On 16 May 1966, Jose de Borja submitted for court approval the agreement of 12 October 1963 to the Court of First Instance of Rizal x x x; and again on 8 August 1966, to the Court of First Instance of Nueva Ecija x x x. Tasiana Ongsingo vda. de Borja opposed in both instances. The Rizal court approved the compromise agreement, but the Nueva Ecija court declared it void and unenforceable. Special administratrix Taciana Ongsingo vda. de Borja appealed the Rizal Court's order of approval x x x, while administrator Jose de Borja appealed the order of disapproval x x x by the Court of First Instance of Nueva Ecija.

The genuineness and due execution of the compromise agreement of 12 October 1963 is not disputed, but its validity is nevertheless attacked by Tasiana Ongsingco on the ground that: (1) the heirs cannot enter into such kind of agreement without first probating the will of Francisco de Borja; (2) that the same involves a compromise on the validity of the marriage between Francisco de Borja and Tasiana Ongsingco; and (3) that even if it were valid, it has ceased to have force and effect.

In assailing the validity of the agreement of 12 October 1963, Tasiana Ongsingco and the Probate Court of Nueva Ecija rely on this Court's decision in Guevara v Guevara, 74 Phil 479, wherein the Court's majority held the view that the presentation of a will for probate is mandatory and that the settlement and distribution of an estate on the basis of intestacy when the decedent left a will, is against the law and public policy. It is likewise pointed out by appellant Tasiana Ongsingco that Section 1 of Rule 74 of the Revised Rules explicitly conditions the validity of an extra judicial settlement of a decedent's estate by agreement between heirs, upon the facts that "(if) the decedent left no will and no debts, and the heirs are all of age, or the minors are represented by their judicial and legal representatives . . ." The will of Francisco de Borja having been submitted to the Nueva Ecija Court and still pending probate when the 1963 agreement was made, those circumstances, it is argued, bar the validity of the agreement.

Upon the other hand, in claiming the validity of the compromise agreement, Jose de Borja stresses that at the time it was entered into, on 12 October 1963, the governing provision was Section 1, Rule 74 of the original Rules of Court of 1940, which allowed the extra judicial settlement of the estate of a deceased person regardless of whether he left a will or not. He also relies on the dissenting opinion of Justice Moran, in Guevara v Guevara, 74 Phil 479, wherein was expressed the view that if the parties have already divided the estate in accordance with a decedent's will, the probate of the will is a useless ceremony; and if they have divided the estate in a different manner, the probate of the will is worse than useless.

The doctrine of Guevara v Guevara, ante is not applicable to the case at bar.

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This is apparent from an examination of the terms of the agreement between Jose de Borja and Tasiana Ongsingco. Paragraph 2 of said agreement specifically stipulates that the sum of P800,000 payable to Tasiana Ongsingco -

"x x x shall be considered as full - complete payment - settlement of her hereditary share in the estate of the late Francisco de Borja as well as the estate of Josefa Tangco, x x x and to any properties bequeathed or devised in her favor by the late Francisco de Borja by Last Will and Testament or by Donation Inter Vivos or Mortis Causa or purportedly conveyed to her for consideration or otherwise."

This provision evidences beyond doubt that the ruling in the Guevara case is not applicable to the cases at bar. There was here no attempt to settle or distribute the estate of Francisco de Borja among the heirs thereto before the probate of his will. The clear object of the contract was merely the conveyance by Tasiana Ongsingco of any and all her individual share and interest, actual or eventual, in the estate of Francisco de Borja and Josefa Tangco. There is no stipulation as to any other claimant, creditor or legatee. And as hereditary share in decedent's estate is transmitted or vested immediately from the moment of the death of such causante or predecessor in interest x x x, there is no legal bar to a successor (with requisite contracting capacity) disposing of her or his hereditary share immediately after such death, even if the actual extent of such share is not determined until the subsequent liquidation of the estate. Of course, the effect of such alienation is to be deemed limited to what is ultimately adjudicated to the vendor heir. However, the aleatory character of the contract does not affect the validity of the transaction; neither does the coetaneous agreement that the numerous litigations between the parties x x x are to be considered settled and should be dismissed, although stipulations as noted by the Rizal Court gives the contract such character of a compromise that the law favors, for obvious reasons, if only because it serves to avoid multiplicity of suits.

It is likewise worthy of note in this connection that as the surviving spouse of Francisco de Borja, Tasiana Ongsingco was his compulsory heir x x x. Wherefore, barring unworthiness or valid disinheritance, her successional interest existed independent of Francisco de Borja's last will and testament, and would exist even if such will were not probated at all. Thus, the prerequisite of a previous probate of the will, as established in the Guevara and analogous cases, cannot apply to the case of Tasiana Ongsingco vda. de Borja.

Since the compromise contract was entered into by and between "Jose de Borja, personally and as administrator of the Testate Estate of Josefa Tangco" on the one hand, and on the other, "the heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco vda. de Borja," it is clear that the transaction was binding on both in their individual capacities, upon the perfection of the contract, even without previous authority of the Court to enter into the same. The only difference between an extra judicial compromise and one that is submitted and approved by the Court, is that the latter can be enforced by execution proceedings. Art. 2037 of the Civil Code is explicit on the point:

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"Art. 2037. A compromise has upon the parties the effect and authority of res judicata; but there shall be no execution except in compliance with a judicial compromise."

This brings us to the plea that the Court of First Instance of Rizal has no jurisdiction to approve the compromise with Jose de Borja because Tasiana Ongsingco was not an heir in the estate of Josefa Tangco x x x, but she was an heir of Francisco de Borja x x x. This circumstance is irrelevant, since what was sold by Tasiana Ongsingco was only her eventual share in the estate of her late husband, not the estate itself; and as already shown, that eventual share she owned from the time of Francisco's death and the Court of Nueva Ecija could not bar her selling it. As owner of her undivided hereditary share, Tasiana could dispose of it in favor of whom-soever she chose. Such alienation is expressly recognized and provided for by article 1088 of the present Civil Code:

"Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they do so within the period of one month from the time they were notified in writing of the sale of the vendor."

If the sale of a hereditary right can be made to a stranger, then a fortiori the sale thereof to a co-heir could not be forbidden.

x x x

We conclude that in so doing, the Rizal Court acted in accordance with law, and therefore, its order should be upheld, while the contrary resolution of the Court of First Instance of Nueva Ecija should be, and is, reversed.

In her brief, Tasiana Ongsingco also pleads that the time elapsed in the appeal has affected her unfavorably, in that while the purchasing power of the agreed price of P800,000 has diminished, the value of the Jalajala property has increased. But the fact is that her delay in receiving the payment of the agreed price for her hereditary interest was primarily due to her attempts to nullify the agreement she had formally entered into with the advice of her counsel x x x. And as to the devaluation de facto of our currency, what We said in Dizon Rivera v Dizon x x x "estates would never be settled if there were to be a revaluation with every subsequent fluctuation in the values of currency and properties of the estate” is particularly opposite in the present case.

x x x

IN VIEW OF THE FOREGOING, the appealed order of the Court of First Instance of Rizal in Case No. L-28040 is hereby affirmed; while those in Cases Nos. L-28568 and L-28611 are reversed and set aside. Costs against the appellant Tasiana Ongsingco vda. de Borja in all three (3) cases.

Concepcion, C.J., Makalintal, Zaldivar, Castro, Teehankee, Barredo, Makasiar,

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Antonio and Esguerra, JJ., concur. Fernando, J., did not take part.

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GO ONG v COURT OF APPEALSNo. L-75884, 24 September 1987

154 SCRA 270

Go Ong adds another dimension to the transmission of the hereditary estate from the decedent to the heirs. An heir may encumber his share in the estate during settlement proceedings, even without prior approval of the court. Go Ong holds that the substantive rights of the heir cannot be impaired by the provisions of the Rules of Court. Also, Go Ong holds that pending settlement proceeding, the half share of the surviving spouse in the conjugal estate is freely alienable by said surviving spouse.

Paras, J.:

The uncontroverted facts of this case, as found by the Court of Appeals, are as follows.

x x x Two (2) parcels of land in Quezon City identified as Lot No. 12, Block 407, Psd 37326 with an area of 1,960.6 sq. m. and Lot No. 1, Psd 15021, with an area of 3,660.8 sq. m. are covered by Transfer Certificate of Title No. 188705 in the name of "Alfredo Ong Bio Hong, married to Julita Go Ong". Alfredo Ong Bio Hong died on January 18, 1975 and Julita Go Ong was appointed administratrix of her husband's estate in Civil Case No. 107089. The letters of administration was registered on TCT No. 188705 on October 23, 1979. Thereafter Julita Go Ong sold Lot No. 12 to Lim Che Boon, and TCT No. 188705 was partially canceled and TCT No. 262852 was issued in favor of Lim Che Boon covering Lot No. 12. On June 8, 1981 Julita Go Ong through her attorney-in-fact Jovita K. Yeo mortgaged Lot No. 1 to the Allied Banking Corporation to secure a loan of P900,000.00 obtained by JK Exports, Inc. The mortgage was registered on TCT No. 188705 on the same date x x x. On the loan there was due the sum of P828,000.00 and Allied Banking Corporation tried to collect it from Julita Go Ong. Hence, the complaint alleging nullity of the contract for lack of judicial approval which the bank had allegedly promised to secure from the court. In response thereto, the bank averred that it was plaintiff Julita Go Ong who promised to secure the court's approval, adding that Julita Go Ong informed the defendant that she was promised the sum of P300,000.00 by the JK Exports, Inc. which will also take charge of the interest of the loan.

Concluding, the trial court ruled:

"Absent (of) any evidence that the property in question is the capital of the deceased husband brought into the marriage, said property should be presumed as acquired during the marriage, and therefore, conjugal property.

"After the dissolution of the marriage with the death of plaintiff's husband, the plaintiff acquired by law, her conjugal share, together with the hereditary rights thereon. (Margate v Raba cal , L-14302, April 30, 1963) Consequently, the mortgage constituted on said property, upon express authority of plaintiff, notwithstanding the lack of judicial approval, is valid, with respect to her conjugal share thereon, together with her hereditary rights."

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On appeal by petitioner, respondent Court of Appeals affirmed with modification, the appealed decision. The dispositive portion of the appellate court's decision reads:

"WHEREFORE, with the modification that the extra judicial foreclosure proceedings instituted by defendant against plaintiff shall be held in abeyance to await the final result of Civil Case No. 107089 of the Court of First Instance of Manila, 6th Judicial District Branch XXXII, entitled "IN THE MATTER OF THE INTESTATE ESTATE OF THE LATE ALFREDO ONG BIO: JULITA GO ONG, ADMINISTRATRIX". In pursuance with which the restraining order of the lower court in this case restraining the sale of the properties levied upon is hereby ordered to continue in full force and effect coterminous with the final result of Civil Case No. 107089, the decision appealed from is hereby affirmed. Cost against plaintiff-appellant."

On April 8, 1986, petitioner moved for the reconsideration of the said decision, but in a Resolution dated September 11, 1986, respondent court denied the motion for lack of merit. Hence, the instant petition.

x x x

The sole issue in this case is - whether or not the mortgage constituted over the parcel of land under petitioner's administration is null and void for want of judicial approval.

The instant petition is devoid of merit.

x x x

In brief, the lower court found: (1) that the property under the administration of petitioner - the wife of the deceased, is a community property and not the separate property of the latter; (2) that the mortgage was constituted in the wife's personal capacity and not in her capacity as administratrix; and (3) that the mortgage affects the wife's share in the community property and her inheritance in the estate of her husband.

Petitioner, asserting that the mortgage is void for want of judicial approval, quoted Section 7 of Rule 89 of the Rules of Court and cited several cases wherein this Court ruled that the regulations provided in the said section are mandatory.

While petitioner's assertion may have merit insofar as the rest of the estate of her husband is concerned, the same is not true as regards her conjugal share and her hereditary rights in the estate. The records show that petitioner willingly and voluntarily mortgaged the property in question because she was promised by JK Exports, Inc. the sum of P300,000.00 from the proceeds of the loan; and that at the time she executed the real estate mortgage, there was no court order authorizing the mortgage, so she took it upon herself to secure an order.

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Thus, in confirming the findings of the lower court, as supported by law and the evidence, the Court of Appeals aptly ruled that Section 7 of Rule 89 of the Rules of Court is not applicable, since the mortgage was constituted in her personal capacity and not in her capacity as administratrix of the estate of her husband.

Nevertheless, petitioner, citing the cases of Picardal, et al v Lladas (21 SCRA 1483) and Fernandez, et al. v Maravilla (10 SCRA 589), further argues that in the settlement proceedings of the estate of the deceased spouse, the entire conjugal partnership property of the marriage is under administration. While such may be in a sense true, that fact alone is not sufficient to invalidate the whole mortgage, willingly and voluntarily entered into by the petitioner. An apposite view would result in an injustice. Under similar circumstances, this Court applied the provisions of Article 493 of the Civil Code, where the heirs as co-owners shall each have full ownership of his part and the fruits and benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person in its enjoyment, except when personal rights are involved. But the effect of the alienation or mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership (Philippine National Bank v Court of Appeals, 98 SCRA 207 (1980).

Consequently, in the case at bar, the trial court and the Court of Appeals cannot be faulted in ruling that the questioned mortgage constituted on the property under administration, by authority of the petitioner, is valid, notwithstanding the lack of judicial approval, with respect to her conjugal share and to her hereditary rights. The fact that what had been mortgaged was in custodia legis is immaterial, insofar as her conjugal share and hereditary share in the property is concerned, for after all, she was the absolute owner thereof. This ownership by hers is not disputed, nor is there any claim that the rights of the government (with reference to taxes) nor the rights of any heir or anybody else, have been prejudiced or impaired. As stated by Associate Justice (later Chief Justice) Manuel Moran in Jakosalem v Rafols, et al., 73 Phil 618 –

"The land in question, described in the appealed decision, originally belonged to Juan Melgar. The latter died and the judicial administration of his estate was commenced in 1915 and came to a close on December 2, 1924 only. During the pendency of the said administration, that is on July 5, 1917, Susana Melgar, daughter of the deceased Juan Melgar, sold the land with the right of repurchase to Pedro Cui, subject to the stipulation that during the period for the repurchase she would continue in possession of the land as lessee of the purchaser. On December 12, 1920, the partition of the estate left by the deceased Juan Melgar was made, and the land in question was adjudicated to Susana Melgar. In 1921, she conveyed, in payment of professional fees, one-half of the land in favor of defendant-appellee Nicolas Rafols, who entered upon the portion thus conveyed and has been in possession thereof up to the present. On July 23, 1921, Pedro Cui brought an action to recover said half of the land from Nicolas Rafols and the other half from the other defendants, and while that case was pending, or about August 4, 1925, Pedro Cui donated the whole land in question to Generosa Teves, the herein plaintiff-appellant. After trial, the lower court rendered a decision absolv-ing Nicolas Rafols as to the one-half of the land conveyed to him by Susana

36

Melgar, and declaring the plaintiff owner of the other half by express acknowledgment of the other defendants. The plaintiff appealed from that part of the judgment which is favorable to Nicolas Rafols.

"The lower court absolved Nicolas Rafols upon the theory that Susana Melgar could not have sold anything to Pedro Cui because the land was then in custodia legis, that is, under judicial administration. This is error. That the land could not ordinarily be levied upon while in custodia legis, does not mean that one of the heirs may not sell the right, interest or participation which he has or might have in the lands under administration. The ordinary execution of property in custodia legis is prohibited in order to avoid interference with the possession by the court. But the sale made by an heir of his share in an inheritance, subject to the result of the pending administration, in no wise stands in the way of such administration."

The reference to judicial approval in Sec. 7, Rule 89 of the Rules of Court cannot adversely affect the substantive rights of private respondents to dispose of her ideal [not inchoate, for the conjugal partnership ended with her husband's death, and her hereditary rights accrued from the moment of the death of the decedent (Art. 777, Civil Code)] share in the co-heirship and/or co-ownership formed between her and the other heirs/co-owners (See Art. 493, Civil Code, supra). Sec. 7, Rule 89 of the Rules of Court applies in a case where judicial approval has to be sought in connection with, for instance, the sale or mortgage of property under administration for the payment, say of a conjugal debt, and even here, the conjugal and hereditary shares of the wife are excluded from the requisite judicial approval for the reason already adverted to hereinabove, provided of course no prejudice is caused to others, including the government.

Moreover, petitioner is already estopped from questioning the mortgage. An estoppel may arise from the making of a promise, even though without consideration, if it was intended that the promise should be relied upon and in fact it was relied upon, and if a refusal to enforce it would be virtually to sanction the perpetration of fraud, or would result in another injustice. (Gonzalo Sy Trading v Central Bank, 70 SCRA 570)

PREMISES CONSIDERED, the instant petition is hereby denied and the assailed decision of the Court of Appeals is hereby affirmed.

SO ORDERED.

Yap (Chairman), Melencio-Herrera, Padilla and Sarmiento, JJ., concur.

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LEE v REGIONAL TRIAL COURT OF QUEZON CITY, BR. 85G. R. No. 146006, 23 February 2004

423 SCRA 497

Lee gives another dimension to the right of an heir to dispose properties forming part of the inheritance, pending judicial settlement proceedings. In this case, the dispositions made by the two heirs relate to specific properties which have not been finally adjudicated by the intestate court. There were also claims made by 5 illegitimate children which have not been acted upon. But more importantly, in this case the legitimate family executed a deed of extra judicial partition, to the exclusion of the illegitimate children, pursuant to which they divided the estate of the decedent amongst themselves. And this deed of extra judicial partition was executed while the intestate proceedings remain pending in court.

The decision in Lee is consistent with the law. However, Court omitted to state a very important reason why no heir can sell any specific property of the estate prior to the final settlement of the estate without court approval. The reason is that prior to the partition of the estate among the heirs, all of the heirs are co-owners of the inheritance, each having an ideal or pro indiviso share therein. This co-ownership prevents any heir from alienating a specific property without court approval, because all other co-heirs have an interest in each of the specific property of the estate. It is only upon the partition of the estate that each of the heirs may probably acquire absolute title to specific properties.

One wonders if the Court could have allowed the sale in Lee, but subject to the outcome of partition. After all, the hereditary estate is transmitted to the heirs from the moment of the death of the decedent. Nonetheless, it is worth remembering that the transmission of the estate to the heirs prior to partition is a transmission of aliquot shares, not a transmission of specific property. Thus, where an heir disposes a specific property for his own benefit, such disposition unjustly deprives the other co-heirs of their undivided interest in the thing alienated.

Note too the tactical move of Jose Ortañez in seeking the removal of the Special Administratrix Enderes, his illegitimate half-sister. By disposing the shares over which Enderes as administration, he claimed that the appointment has become moot and academic. But the precise reason why such administration became irrelevant was his own unauthorized and surreptitious act of disposing the property subject of administration without court approval. Such machination constitutes a contemptuous act as it sought to indirectly frustrate the court’s directive to put Special Administratrix Enderes in charge of the Philinterlife shares.

Corona, J.:

x x x

Dr. Juvencio P. Ortañez incorporated the Philippine International Life Insurance Company, Inc. on July 6, 1956. At the time of the company’s incorporation,

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Dr. Ortañez owned ninety percent (90%) of the subscribed capital stock.

On July 21, 1980, Dr. Ortañez died. He left behind a wife (Juliana Salgado-Ortañez), three legitimate children (Rafael, Jose and Antonio Ortañez) and five illegitimate children by Legaya Novicio (herein private respondents Ma. Divina Ortañez-Enderes and her siblings Jose, Romeo, Enrico, Manuel and Cesar, all surnamed Ortañez).

On September 24, 1980, Rafael Ortañez filed before the Court of First Instance of Rizal, Quezon City Branch (now Regional Trial Court of Quezon City) a petition for letters of administration of the intestate estate of Dr. Ortañez, docketed as Sp. Proc. Q-30884 (which petition to date remains pending at Branch 85 thereof).

Private respondent Ma. Divina Ortañez-Enderes and her siblings filed an opposition to the petition for letters of administration and, in a subsequent urgent motion, prayed that the intestate court appoint a special administrator.

On March 10, 1982, Judge Ernani Cruz Paño, then presiding judge of Branch 85, appointed Rafael and Jose Ortañez joint special administrators of their father’s estate. Hearings continued for the appointment of a regular administrator (up to now no regular administrator has been appointed).

As ordered by the intestate court, special administrators Rafael and Jose Ortañez submitted an inventory of the estate of their father, which included, among other properties, 2,029 shares of stock in Philippine International Life Insurance Company (hereafter Philinterlife), representing 50.725% of the company’s outstanding capital stock.

On April 15, 1989, the decedent’s wife, Juliana S. Ortañez, claiming that she owned 1,014 Philinterlife shares of stock as her conjugal share in the estate, sold said shares with right to repurchase in favor of herein petitioner Filipino Loan Assistance Group (FLAG), represented by its president, herein petitioner Jose C. Lee. Juliana Ortañez failed to repurchase the shares of stock within the stipulated period, thus ownership thereof was consolidated by petitioner FLAG in its name.

On October 30, 1991, Special Administrator Jose Ortañez, acting in his personal capacity and claiming that he owned the remaining 1,011 Philinterlife shares of stock as his inheritance share in the estate, sold said shares with right to repurchase also in favor of herein petitioner FLAG, represented by its president, herein petitioner Jose C. Lee. After one year, petitioner FLAG consolidated in its name the ownership of the Philinterlife shares of stock when Jose Ortañez failed to repurchase the same.

It appears that several years before (but already during the pendency of the intestate proceedings at the Regional Trial court of Quezon City, Branch 85), Juliana Ortañez and her two children, Special Administrators Rafael and Jose Ortañez, entered into a memorandum of agreement dated March 4, 1982 for the extra judicial

39

settlement of the estate of Dr. Juvencio Ortañez, partitioning the estate (including the Philinterlife shares of stock) among themselves. This was the basis for the number of shares separately sold by Juliana Ortañez on April 15, 1989 (1,014 shares) and by Jose Ortañez on October 30, 1991 (1,011 shares) in favor of herein petitioner FLAG.

On July 12, 1995, herein private respondents Ma. Divina Ortañez-Enderes and her siblings (hereafter referred to as private respondents Enderes, et al.) filed a motion for appointment of special administrator of Philinterlife shares of stock. This move was opposed by Special Administrator Jose Ortañez.

On November 8, 1995, the intestate court granted the motion of private respondents Enderes, et. al. and appointed private respondent Enderes special administratrix of the Philinterlife shares of stock.

On December 20, 1995, Special Administratrix Enderes filed an urgent motion to declare void ab initio the memorandum of agreement dated March 4, 1982. On January 9, 1996, she filed a motion to declare the partial nullity of the extra judicial settlement of the decedent’s estate. These motions were opposed by Special Administrator Jose Ortañez.

On March 22, 1996, Special Administratrix Enderes filed an urgent motion to declare void ab initio the deeds of sale of Philinterlife shares of stock, which move was again opposed by Special Administrator Jose Ortañez.

On February 4, 1997, Jose Ortañez filed an omnibus motion for (1) the approval of the deeds of sale of the Philinterlife shares of stock, and (2) the release of Ma. Divina Ortañez-Enderes as Special Administratris of the shares of stock on the ground that there were no longer any shares of stock for her to administer.

On August 11, 1997, the intestate court denied the omnibus motion of Special Administrator Jose Ortañez for the approval of the deeds of sale for the reason that:

x x x

On August 29, 1997, the intestate court issued another order granting the motion of Special Administratrix Enderes for the annulment of the March 4, 1982 memorandum of agreement or extra judicial partition of estate.

x x x

x x x Jose Ortañez filed x x x a petition for certiorari in the Court of Appeals. The appellate court denied his petition, however, ruling that there was no legal justification whatsoever for the extra judicial partition of the estate by Jose Ortañez, his brother Rafael Ortañez and mother Juliana Ortañez during the pendency of the settlement of the estate of Dr. Ortañez, without the requisite approval of the intestate court, when it was clear that there were other heirs to the estate who stood to be prejudiced thereby. Consequently, the sale made by Jose Ortañez and his mother

40

Juliana Ortañez to FLAG of the shares of stock they invalidly appropriated for themselves, without the approval of the intestate court, was void.

x x x He elevated the case to the Supreme Court via petition for review under Rule 45 which the Supreme Court dismissed x x x. His motion for reconsideration was denied with finality x x x. On February 23, 1999, the resolution of the Supreme Court dismissing the petition of Special Administrator Jose Ortañez became final and was subsequently recorded in the book of entries of judgment.

x x x

On May 2, 2000, private respondent-Special Administratrix Enderes and her siblings filed a motion for execution of the Orders of the intestate court dated August 11 and August 29, 1997 because the orders of the intestate court nullifying the sale (upheld by the Court of Appeals and the Supreme Court) had long became (sic) final. Respondent-Special Administratrix Enderes served a copy of the motion to petitioners Jose Lee and Alma Aggabao as president and secretary respectively, of Philinterlife, but petitioners ignored the same.

On July 6, 2000, the intestate court granted the motion for execution x x x.

Petitioners Lee and Aggabao subsequently filed before the Court of Appeals a petition for certiorari x x x. Petitioners alleged that the intestate court gravely abused its discretion in (1) declaring the ownership of FLAG over the Philinterlife shares of stock was null and void; (2) ordering the execution of its order declaring such nullity; and (3) depriving petitioners of their right to due process.

On July 26, 2000, the Court of Appeals dismissed the petition outright.

x x x

Petitioners Jose Lee and Alma Aggabao (president and secretary, respectively of Philinterlife) and FLAG now raise the following errors for our consideration:

x x x

D. In failing to declare null and void the orders of the intestate court which nullified the sale of shares of stock between the legitimate heir José S. Ortañez and petitioner FLAG because of settled law and jurisprudence; i.e., that an heir has the right to dispose of the decedent’s property even if the same is under administration pursuant to Civil Code provision that possession of hereditary property is transmitted to the heir the moment of death of the decedent (Acebedo v Abesamis, 217 SCRA 194).

The petition has no merit.

41

x x x It is clear that Juliana Ortañez, and her three sons, Jose, Rafael and Antonio, all surnamed Ortañez, invalidly entered into a memorandum of agreement extra judicially partitioning the intestate estate among themselves, despite their knowledge that there were other heirs or claimants to the estate and before final settlement of the estate by the intestate court. Since the appropriation of the estate properties by Juliana Ortañez and her children (Jose, Rafael and Antonio Ortañez) was invalid, the subsequent sale thereof by Juliana and Jose to a third party (FLAG), without court approval, was likewise void.

An heir can sell his right, interest, or participation in the property under administration under Art. 553 of the Civil Code which provides that possession of hereditary property is deemed transmitted to the heir without interruption from the moment of death of the decedent. However, an heir can only alienate such portion of the estate that may be allotted to him in the division of the estate by the probate or intestate court after final adjudication, that is, after all debtors shall have been paid or the devisees or legatees shall have been given their shares. This means that an heir may only sell his ideal or undivided share in the estate, not any specific property therein. In the present case, Juliana Ortañez and Jose Ortañez sold specific properties of the estate (1,014 and 1,011 shares of stock in Philinterlife) in favor of petitioner FLAG. This they could not lawfully do pending the final adjudication of the estate by the intestate court because of the undue prejudice it would cause the other claimants to the estate, as what happened in the present case.

Juliana Ortañez and Jose Ortañez sold specific properties of the estate, without court approval. It is well settled that court approval is necessary for the validity of any disposition of the decedent’s estate. In the early case of Godoy v Orellano, we laid down the rule that the sale of the property of the estate by an administrator without the order of the probate court is void and passes no title to the purchaser. And in the case of Dillena v Court of Appeals, we ruled that:

“x x x On November 1, 1978, the questioned deed of sale of the fishponds was executed between petitioner and private respondent without notice and approval of the probate court. Even after the sale, the administratrix Aurora Carreon still included the three fishponds as among the real properties of the estate in her inventory submitted on August 13, 1981. In fact, as stated by the Court of Appeals, petitioner, at the time of the sale of the fishponds in question, knew that the same were part of the estate under administration.

x x x

The subject properties therefore are under the jurisdiction of the probate court which according to our settled jurisprudence has the authority to approve any disposition regarding properties under administration … More emphatic is the declaration We made in Estate of Olave v Reyes (123 SCRA 767) where We stated that when the estate of the deceased person is already the subject of a testate or intestate proceeding, the administrator cannot enter into any transaction involving it without prior approval of the probate court.

Only recently, in Manotok Realty, Inc. v Court of Appeals (149 SCRA

42

174), We held that the sale of an immovable property belonging to the estate of a decedent, in a special proceedings, needs court approval …… This pronouncement finds support in the previous case of Dolores vda. de Gil c Agustin Cancio (14 SCRA 797) wherein We emphasized that it is within the jurisdiction of the probate court to approve the sale of properties of a deceased person by his prospective heirs before final adjudication. x x x.

x x x

Our jurisprudence is therefore clear that (1) any disposition of estate property by an administrator or prospective heir pending final adjudication requires court approval; and (2) any unauthorized disposition of estate property can be annulled by the probate court, there being no need for a separate action to annul the unauthorized disposition.

x x x

WHEREFORE, the petition is hereby DENIED. The decision of the Court of Appeals in CA-G.R. S.P. No. 59736 dated July 26, 2000, dismissing petitioners’ petition for certiorari and affirming the July 6, 2000 order of the trial court which ordered the execution of its (trial court’s) August 11 and 29, 1997 orders, is hereby AFFIRMED.

SO ORDERED.

Vitug (Chairman), and Carpio-Morales, JJ., concur. Sandoval-Gutierrez, J., no part.

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HEIRS OF SPOUSES REMEDIOS R. SANDEJAS ANDELIODORO P. SANDEJAS SR. v LINA

G.R. No. 141634, 5 February 2001351 SCRA 183

In this case, Justice Panganiban correctly classified the transaction between Buyer and Seller as a conditional sale, thereby correcting the CA’s findings that the transaction was a contract to sell. Justice Panganiban correctly distinguished between a contract to sell (wherein the transaction is subject to the positive suspensive condition that the buyer will deliver the purchase price) from a conditional sale (wherein the obligation of the seller to execute the deed of sale is conditioned upon the procurement of the approval of the intestate court). Thus, when the intestate court approved the sale of the property, the condition of the sale was fulfilled and the Seller and the Buyer are obligated to perform their respective obligations under the contract.

As to the scope of the property that must be sold, Justice Panganiban correctly ruled that the sale can only cover the undivided interest of Eliodoro to the extent of his ½ conjugal share, and his 1/10 share as an intestate heir of Remedios. Therefore, the obligation of the Administrator is to sell to Alex A. Lina ½ + 1/10 of the property or 3/5 thereof – undivided share.

The Court reiterates the basic rule that an heir may sell his ideal share of the inheritance. Court approval is not necessary before the heir could sell. Judicial approval cannot adversely affect the substantive right of the heir to dispose his own pro indiviso share in the co-heirship or co-ownership.

As to the sale of the entire property to the buyer, Justice Panganiban correctly ruled that the pro-indiviso shares of the non-selling heirs should be excluded from the sale. Hence the transaction between Eliodoro Sandejas Sr. and Alex Lina cannot extend beyond Eliodoro’s undivided interest in the property.

Panganiban, J.:

A contract of sale is not invalidated by the fact that it is subject to probate court approval. The transaction remains binding on the seller-heir, but not on the other heirs who have not given their consent to it. x x x.

The Case

x x x The dispositive portion of the assailed Decision reads as follows:

WHEREFORE, for all the foregoing, [w]e hereby MODIFY the [O]rder of the lower court dated January 13, 1995, approving the Receipt of Earnest Money with Promise to Buy and Sell dated June 7, 1982, only to the three-fifth (3/5) portion of the disputed lots covering the share of Administrator Eliodoro Sandejas Sr. in the property. The intervenor is hereby directed to pay appellant the balance of the purchase price of the three-fifth (3/5) portion of the property

44

within thirty (30) days from receipt of this Order and x x x the administrator is directed to execute the necessary and proper deeds of conveyance in favor of appellee within thirty (30) days thereafter.”

x x x

The Facts

The facts of the case, as narrated by the Court of Appeals (CA) are as follows:

“x x x Letters of Administration were issued by the lower court appointing Eliodoro Sandejas Sr. as administrator of the estate of the late Remedios Sandejas x x x.

On November 19, 1981, the 4th floor of Manila City Hall was burned and among the records burned were the records of Branch XI of the Court of First Instance of Manila. x x x As a result, Administrator Eliodoro Sandejas Sr. filed a Motion for Reconstitution of the records of the case x x x.

On April 19, 1983, an Omnibus Pleading for motion to intervene and petition-in-intervention was filed by Movant Alex A. Lina alleging among others that on June 7, 1982, movant and Administrator Eliodoro Sandejas, in his capacity as seller, bound and obligated himself, his heirs, administrators and assigns, to sell forever and absolutely and in their entirety the following parcels of land which formed part of the estate of the late Remedios R. Sandejas, to wit:

x x x

The Receipt of the Earnest Money with Promise to Sell and to Buy is hereunder quoted to wit:

‘Received today from MR. ALEX A LINA, the sum of ONE HUNDRED THOUSAND (P100,000.00) PESOS, Philippine Currency, per Metropolitan Bank & Trust Company Check No. 319913 dated today for P100,000.00 x x x as additional earnest money for the following:

x x x

all registered with the Registry of Deeds of the Province of Rizal (Makati Branch Office) in the name of SELLER ELIODORO SANDEJAS, Filipino citizen, of legal age, married to Remedios Reyes de Sandejas, and which undersigned, as SELLER, binds forever and absolutely in their entirety (all of the four (4) parcels of land above described, which are contiguous to each other as to form one big lot) to said Mr. Alex A. Lina, who has agreed to buy all of them, also binding on his heirs, administrators and assigns, for the consideration of ONE MILLION (P1,000,000.00) PESOS, Philippine

45

Currency, upon such reasonable terms of payment as may be agreed upon by them. The parties have however, agreed on the following terms and conditions:

x x x

3. Considering that Mrs. Remedios Reyes de Sandejas is already deceased and as there is a pending intestate proceedings for the settlement of her estate x x x, wherein SELLER was appointed as administrator of said Estate, has informed BUYER that he (SELLER) already filed a Motion with the Court for authority to sell the above parcels of land to herein BUYER, but which has been delayed due to the burning of the records of said Spec. Pro No. 138398, which records are presently under reconstitution, the parties shall have at least ninety (90) days from receipt of the order authorizing SELLER, in his capacity as administrator, to sell all THE ABOVE DESCRIBED PARCELS OF LAND TO HEREIN BUYER (but extendible for another period of ninety (90) days upon the request of either of the parties upon the other), within which to execute the deed of absolute sale covering all above parcels of land;

x x x

5. Whether indicated or not, all of the above terms and conditions shall be binding on the heirs, administrators and assigns of both SELLER (undersigned MR. ELIODORO P. SANDEJAS SR.) and BUYER (MR. ALEX A. LINA).”

On January 7, 1985, counsel for Administrator Eliodoro P. Sandejas filed a Manifestation alleging among others that the administrator, Eliodoro P. Sandejas, died sometime in November 1984 in Canada x x x. He also alleged, among others that the matter of the claim of Intervenor Alex A. Lina becomes a money claim to be filed in the estate of the late Mr. Eliodoro P. Sandejas x x x. On February 15, the lower court issued an Order directing, among others, that the counsel for the four (4) heirs and other heirs of Teresita R. Sandejas to move for the appointment of a new administrator within fifteen (15) days from receipt of this order x x x.

On November 22, 1985, Alex A. Lina as petitioner filed with the Regional Trial Court of Manila an Omnibus Pleading for (1) petition for letters of administration and (2) to consolidate instant case with Sp. Proc. No. R-83-15601 RTC Branch XI-Manila x x x entitled IN RE: INTESTATE ESTATE OF ELIODORO P. SANDEJAS SR., ALEX A LINA, PETITIONER, for letters of administration x x x. On November 29, 1985, Branch XXXVI of the Regional Trial Court of Manila issued an Order consolidating Sp. Proc No. 85-33707 with SP. Proc No. R-83-15601 x x x. Likewise, on December 13, 1985, the Regional Trial Court of Manila, Branch XI, issued an Order stating that this court has no objection to the consolidation of Special Proceedings No. 85-331707, now pending before Branch XXXVI of this Court, with the present

46

proceedings now pending before this Branch.

x x x

x x x Administrator Sixto Sandejas on January 16, 1989 took his oath as administrator of the estate of the deceased Remedios R. Sandejas and Eliodoro P. Sandejas. x x x

On November 29, 1993, Intervenor filed an Omnibus Motion (a) to approve the deed of conditional sale executed between Plaintiff-in-Intervention Alex A. Lina and Eliodoro Sandejas Sr. on June 7, 1982; (b) to compel the heirs of Remedios Sandejas and Eliodoro Sandejas Sr. thru their administrator, to execute a deed of absolute sale in favor of Intervenor Alex A. Lina pursuant to said conditional deed of sale x x x to which the administrator filed a Motion to Dismiss and/or Opposition to said omnibus motion x x x.

On January 13, 1995, the lower court rendered the questioned Order granting Intervenor’s Motion for the Approval of the Receipt of Earnest Money with promise to buy between Plaintiff-in-Intervention Alex A. Lina and Eliodoro Sandejas Sr. dated June 7, 1982 x x x.

The Order of the intestate court disposed as follows:

WHEREFORE, Intervenor’s motion for the approval of the Receipt of Earnest Money with Promise to Sell and to Buy dated June 7, 1982, is granted. The Intervenor is directed to pay the balance of the purchase price amounting to P729,000.00 within thirty (30) days from receipt of this Order and Administrator is directed to execute within thirty (30) days thereafter the necessary and proper deeds of conveyancing.

Ruling of the Court of Appeals

Overturning the RTC ruling, the CA held that the contract between Eliodoro Sandejas Sr. and respondent was merely a contract to sell, not a perfected contract of sale. It ruled that the ownership of the four lots was to remain in the intestate estate of Remedios Sandejas until the approval of the sale was obtained from the settlement court. That approval was a positive suspensive condition, the non-fulfillment of which was not tantamount to a breach. It was simply an event that prevented the obligation from maturing or becoming effective. If the condition did not happen, the obligation would not arise or come into existence.

The CA held that Section 1, Rule 89 of the Rules of Court was inapplicable, because the lack of written notice to the other heirs showed the lack of consent of those heirs other than Eliodoro Sandejas Sr. For this reason, bad faith was imputed to him, for no one is allowed to enjoy a claim arising from one’s own wrongdoing. Thus, Eliodoro Sr. was bound, as a matter of justice and good faith, to comply with his contractual commitments as an owner and heir. When he entered into the agreement with respondent, he bound his conjugal and successional shares in the property.

47

Hence this petition.Issues

x x x

In brief, the Petition poses the main issue of whether the CA erred in modifying the trial court’s Decision and in obligating petitioner to sell 3/5 of the disputed properties to respondent, even if the suspensive condition had not been fulfilled. It also raises the following collateral issues: (1) the settlement court’s jurisdiction; (2) respondent-intervenor’s standing to file an application for the approval of the sale of realty in the settlement case, (3) the decedent’s bad faith, and (4) the computation of the decedent’s share in the realty under administration.

This Court’s Ruling

The Petition is partially meritorious.

Main Issues:Obligation With a Suspensive Condition

Petitioners argue that the CA erred in ordering the conveyance of the disputed 3/5 of the parcels of land, despite the non-fulfillment of the suspensive condition – court approval of the sale – as contained in the “Receipt of Earnest Money with Promise to Sell and To Buy (also referred to as the “Receipt”). Instead, they assert that because this condition had not been satisfied, their obligation to deliver the disputed parcels of land was converted into a money claim.

We disagree. Petitioners admit that the agreement between the deceased Eliodoro Sandejas Sr. and respondent was a contract to sell. Not exactly. In a contract to sell, the payment of the purchase price is a positive suspensive condition. The vendor’s obligation to convey title does not become effective in case of failure to pay.

On the other hand, the agreement between Eliodoro Sr. and respondent is subject to a suspensive condition – the procurement of a lower court approval, not full payment. There was no reservation of ownership in the agreement. In accordance with paragraph 1 of the Receipt, petitioners were supposed to deed the disputed lots over to respondent. This they could do upon the court’s approval, even before full payment. Hence, their contract was a conditional sale, rather than a contract to sell as determined by the CA.

When a contract is subject to a suspensive condition, its birth or effectivity can take place only if and when the condition happens or is fulfilled. Thus, the intestate court’s grant of the Motion for Approval of the sale filed by respondent resulted in petitioners’ obligation to execute the Deed of Sale of the disputed lots in his favor. The condition having been satisfied, the contract was perfected. Henceforth, the parties were bound to fulfill what they had expressly agreed upon.

Court approval is required in any disposition of the decedent’s estate per Rule

48

89 of the Rules of Court. Reference to judicial approval, however, cannot adversely affect the substantive rights of heirs to dispose of their own pro indiviso shares in the co-heirship or co-ownership. In other words, they can sell their rights, interest or participation in the property under administration. A stipulation requiring court approval does not affect the validity and the effectivity of the sale as regards the selling heirs. It merely implies that the property may be taken out of custodia legis, but only with the court’s permission. It would seem that the suspensive condition in the present conditional sale was imposed only for this reason.

Thus we are not persuaded by petitioner’s argument that the obligation was converted into a mere monetary claim. Paragraph 4 of the Receipt, which petitioners rely on, refers to a situation wherein the sale has not materialized. In such a case, the seller is bound to return to the buyer the earnest money paid plus interest at fourteen percent per annum. But the sale was approved by the intestate court; hence, the proviso does not apply.

Because the petitioners did not consent to the sale of their ideal shares in the disputed lots, the CA correctly limited the scope of the Receipt to the pro-indiviso share of Eliodoro Sr. Thus, it correctly modified the intestate court’s ruling by excluding their shares from the ambit of the transaction.

x x x

WHEREFORE, the Petition is hereby PARTIALLY GRANTED. The appealed Decision and Resolution are AFFIRMED with the MODIFICATION that respondent is entitled to only a pro-indiviso share equivalent to 11/20 of the disputed lots.

Melo (Chairman), Vitug, Gonzaga-Reyes and Sandoval-Gutierrez, JJ., concur.

49

REGANON v IMPERIALNo. L-24434, 17 January 1968

22 SCRA 80

The undivided share of an heir in the inheritance may be levied upon and/or garnished by an unpaid creditor in order to satisfy a judgment debt of the said heir. The fact that the hereditary estate has not been divided among the heirs is of no consequence, particularly if heirship is not disputed and the estate is not burdened by any debt. This is a necessary consequence of the automatic transmission of ownership under Article 777.

It was argued that the property comprising the hereditary estate was in custodia legis and therefore could not be levied upon, garnished, or be subject to execution. It must be noted that since the guardianship proceeding terminated ipso facto upon the demise of the ward, and that the ownership of the same transferred to the heirs from the moment of such death, the argument was devoid of merit.

It must be borne in mind, however, that prior to the final distribution of the hereditary estate among the heirs, an unpaid creditor may not attach or garnish a specific property forming part of the estate. The attachment or garnishment must refer to the hereditary share of the debtor-heir. And in any event, the attachment or garnish-ment will be effective as regards the properties which may eventually be allocated to the debtor-heir pursuant to partition.

Bengzon, J.P., J.:

x x x the heirs of Pedro Reganon filed a complaint for recovery of ownership and possession of about one hectare portion of a parcel of land (Lot No. 1 or Lot No. 4952, Situated at Miasi, Polanco, Zamboanga del Norte, covered by O.C.T. No. 1447, with an area of 7.9954 hectares), with damages against Rufino Imperial.

The court a quo x x x rendered a decision declaring the plaintiffs lawful owners of the land in question and entitled to its peaceful possession and enjoyment; ordering defendant immediately to vacate the portion occupied by him and to restore the peaceful possession thereof to plaintiffs; and sentencing defendant to pay plaintiffs the amount of P1,929.20 and the costs.

On November 29, 1963, the plaintiffs filed a motion for issuance of a writ of execution. This was granted by the trial court in its order of December 9, 1963.

The Deputy Provincial Sheriff submitted x x x a sheriff's return of proceedings reporting the garnishment and sale of a carabao and goat belonging to defendant for P153.00, and the attachment and sale of defendant's parcel of land covered by Tax Declaration No. 4694, situated in Sicet, Polanco, Zamboanga del Norte, for P500.00 - both sales having been made to the only bidder, plaintiff's counsel Atty. Vic T. Lacaya.

On March 15, 1964, the Philippine National Bank deposited in the Philippine

50

National Bank-Dipolog Branch the residuary estate of its former ward, Eulogio Imperial, in the sum of P10,303.80, pursuant to an order of Branch I of the Court of First Instance of Zamboanga del Norte in Sp. Proc. No. R-145.

On May 25, 1964, the heirs of said Eulogio Imperial, one of whom is defendant, executed a Deed of Extrajudicial Partition of the residuary estate, wherein was apportioned P1,471.97 as defendant Rufino Imperial's share.

Informed of this development, the plaintiffs filed x x x an ex parte motion for issuance of an alias writ of execution and of an order directing the manager, or the representative, of the Philippine National Bank, Dipolog Branch, to hold the share of defendant and deliver the same to the provincial sheriff of the province to be applied to the satisfaction of the balance of the money judgment. This was granted by the trial court (Branch II) in its order dated June 9, 1964.

x x x the Deputy Provincial Sheriff issued a sheriff's notification for levy addressed to defendant, giving notice of the garnishment of the rights, interests, shares and participation that defendant may have over the residuary estate of the late Eulogio Imperial, consisting of the money deposited in the Philippine National Bank-Dipolog Branch.

Defendant, through counsel, appearing for the first time before the trial court, x x x filed a motion for reconsideration of the order x x x and to quash the alias writ of execution issued pursuant to it, to which plaintiffs filed their opposition x x x. On July 14, 1964, the trial court denied defendant's aforesaid motion.

Defendant's second motion for reconsideration likewise having been denied by the trial court x x x, defendant appealed to us, raising the following issues:

(1) Upon the death of a ward, is the money accumulated in his guardianship proceedings and deposited in a bank, still considered in custodia legis and therefore cannot be attached?

x x x

Defendant-appellant argues that the property of an incompetent under guardianship is in custodia legis and therefore cannot be attached.

It is true that in a former case it was held that property under custodia legis cannot be attached. But this was under the old Rules of Court. The new Rules of Court now specifically provides for the procedure to be followed in case what is attached is in custodia legis. The clear import of this new provision is that property under custodia legis is now attachable, subject to the mode set for in said rule.

Besides, the ward having died, the guardianship proceedings no longer subsist:

"The death of the ward necessarily terminates the guardianship, and thereupon all powers and duties of the guardian cease, except the duty, which

51

remains, to make a proper accounting and settlement in the probate court."As a matter of fact, the guardianship proceedings was ordered conditionally

closed by x x x the Court of First Instance of Zamboanga del Norte x x x in its order of February 8, 1964, where it stated -

"In the meantime, the guardian Philippine National Bank is directed to deposit the residuary estate of the said ward with its bank agency in Dipolog, this province, in the name of the estate of the deceased ward Eulogio Imperial, preparatory to the eventual distribution of the same to the heirs when the latter shall be known, and upon proof of deposit of said residuary estate, the guardian Philippine National Bank shall forthwith be relieved from any responsibility as such, and this proceedings shall be considered closed and terminated."

And the condition has long been fulfilled, because on March 13, 1964 the Philippine National Bank-Manila deposited the residuary estate of the ward with the Philippine National Bank, Dipolog Branch x x x.

When Eulogio Imperial died x x x the rights to his succession x x x were transmitted to his heirs, one of whom is his son and heir, defendant-appellant herein. This automatic transmission cannot but proceed with greater ease and certainty that in this case where the parties agree that the residuary estate is not burdened with any debt. For,

"The rights to the succession of a person are transmitted from the moment of death, and where, as in this case, the heir is of legal age and the estate is not burdened with any debts, said heir immediately succeeds by force of law, to the dominion, ownership and possession of the properties of his predecessor and consequently, stands legally in the shoes of the latter."

That the interest of an heir in the estate of a deceased person may be attached for purposes of execution, even if the estate is in the process of settlement before the courts, is already a settled matter in this jurisdiction.

It is admitted that the heirs of Eulogio Imperial, including herein defendant-appellant, have on May 25, 1964 executed a Deed of Extrajudicial Partition. x x x Therefore, the estate for all practical purposes has been settled. The heirs are at full liberty to withdraw the residuary estate from the Philippine National Bank Dipolog Branch and divide it among themselves.

x x x

WHEREFORE, the orders appealed from are hereby affirmed, with costs against defendant-appellant. So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles and Fernando, J.J., concur.

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SALVADOR v STA. MARIANo. L-25952, 30 June 1967

20 SCRA 603

While the rights to succession are transmitted from the moment of death of the decedent, Salvador holds that the right of an heir to his distributive share thereto is not determinable until all the estate liabilities have been paid. Until then, the right of an heir to his share is not demandable, and is subject to the existence of a residue after the payment of debts.

Salvador further holds that the proceeds of the sale of a property forming part of the estate, likewise forms part of the estate.

It must be noted that the reconveyance court had jurisdiction over the determination of ownership of the parcels of land subject matter of the case. Issues of ownership are beyond the jurisdiction of the probate court. However, the probate court has exclusive jurisdiction with respect to the disposition of any property pertaining to the estate, as well as the distribution of the shares of the instituted heirs.

In this case, three things are interesting as they are puzzling. First, of the twenty-three (23) instituted heirs in the will, nine (9) were not among the so-called heirs of Salvador who were substituted in the reconveyance case. Of the twenty-one (21) heirs substituted for Salvador, seven (7) were not instituted in the will. Therefore, there were fourteen (14) instituted heirs who were also named as substitutes in the reconveyance case. It would therefore seem that everyone knew what was going on. Second, the reconveyance case as well as the probate proceedings were then being heard in two different branches of the same court. The reconveyance court must have known that probate proceedings involving the same properties were pending before another branch of the same court. Third, what led the Court of Appeals to order the reconveyance of the properties to the substituted heirs? The Court of Appeals virtually pre-empted the probate court in the task of determining who the heirs of Celestino Salvador were. In addition, the judgment of the Court of Appeals could result in a situation were the properties of the deceased would be transferred to the heirs even before the debts of the estate are paid, or before tax obligations are fully settled.

Bengzon, J.P., J.:

Seven parcels of titled land and two parcels of untitled land situated in Bigaa, Bulacan, were owned by Celestino Salvador. In 1941, he executed a deed of sale over them in favor of the spouses Alfonso Salvador and Anatolia Halili. Alleging that the sale was void for lack of consideration, he filed x x x against said vendees, a suit for reconveyance of said parcels of land (CFI of Bulacan, Br. I, Civil Case No. 1082).

On April 27, 1956, Celestino Salvador died, testate. As his alleged heirs, twenty-one persons were on May 18, 1956 substituted as plaintiffs in the action for reconveyance. And meanwhile, special proceedings for the probate of his will and for letters testamentary was instituted (CFI of Bulacan, Br. II, Sp. Proceedings No. 940).

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On September 4, 1956 the administrator filed in Sp. Proceedings No. 940 an inventory of properties of the estate, covering the same parcels of land subject matter of the reconveyance action. On September 7, 1956, Celestino Salvador's will was admitted to probate and Dominador Cardenas was appointed executor of said will.

Twenty-three (23) persons were instituted heirs in this will. Of these, nine (9) were not among the twenty-one (21) alleged relatives substituted in the reconveyance case; and of the twenty-one (21) substituted alleged heirs, seven (7) were not instituted in the will.

In the suit for reconveyance, x x x the Court (CFI of Bulacan, Br. I) rendered judgment, ordering the defendants therein (the spouses Alfonso and Anatolia) to reconvey the parcels of land to the estate of Celestino Salvador. Appeal therefrom to the Court of Appeals was interposed by said defendants.

On August 12, 1961, the Court of Appeals affirmed the reconveyance judgment, with the correction that reconveyance be in favor of the twenty-one (21) heirs substituted as plaintiffs therein.

About three years later, pursuant to an order of the CFI of Bulacan, Br. II, in the testacy proceedings, x x x one of the parcels of land involved, Lot 6, was sold so that with its proceeds debtors who filed claims may be paid. The Philippine National Bank bought it at P41,184.00. Said amount was then deposited in the same bank by the administrator, subject to court order.

On December 18, 1964, defendants in the suit for reconveyance executed a deed of reconveyance over the subject parcels of land, in favor of Celestino Salvador's estate. Revoking the same as not in accordance with the final judgment therein, the CFI of Bulacan, Br. I x x x ordered a new deed of reconveyance to be executed in favor of the twenty-one persons substituted as plaintiffs in that action. Accordingly, on September 30, 1965, a new deed of reconveyance was made in favor of twenty-one persons as heirs of Celestino.

Following this, x x x said Br. I ordered the corresponding title certificate (TCT No. 54639) in the administrator's name canceled; new title certificate to be issued in the names of the same twenty-one persons. Said order was carried out, and TCT No. 63734 was issued in the names of the twenty-one persons.

On December 7, 1965, Br. I (reconveyance court) ordered the Philippine National Bank to release the P41,184.00 proceeds of the sale of Lot 6, to the twenty-one (21) plaintiffs in the reconveyance case. Apparently, although the passbook was given by the administrator to said twenty-one persons, no release was made, as the Philippine National Bank awaited Br. II's order.

Br. II, on March 1, 1966, approved the following claims against the estate:

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x x x

On March 30, 1966, said Br. II (probate court) ordered return of passbook to the administrator; and release to the administrator by the PNB of the P41,184.00, or so much thereof as needed to pay the aforestated debts of the estate.

After failing to get reconsideration of said order, the twenty-one (21) substituted heirs, on April 25, 1966, filed with Us the present special civil action for certiorari with preliminary injunction to assail the order to pay the debts of the estate with the P41,184.00 proceeds of the sale of Lot 6; and to question Br. II's (probate court) power to dispose of the parcels of land involved in the reconveyance suit in Br. I.

Raised are these issues: (1) Are the parcels of land and the proceeds of the sale of one of them, properties of the estate or not? (2) Does final judgment in the reconveyance suit in favor of the twenty-one so-called heirs who substituted Celestino Salvador, bar the disposition of the reconveyed properties by the settlement court?

It is a settled point of law that the right of heirs to specific distributive shares of the inheritance does not become finally determinable until all the debts of the estate are paid. Until then, in the face of said claims, their rights cannot be enforced, are inchoate, and subject to the existence of a residue after payment of the debts. (Castellvi de Raquiza v Castellvi, L-17630, 31 October 1963; Jimoga-on v Belmonte, 84 Phil 545; Sec. 1, Rule 90, Rules of Court)

Petitioners do not question the existence of the debts above mentioned. They only contend that the properties involved having been ordered by final judgment reconveyed to them, not to the estate, the same are not properties of the estate but their own, and thus, not liable for debts of the estate.

Said contention is self-refuting. Petitioners rely for their rights on their alleged character as heirs of Celestino; as such they were substituted in the reconveyance case; the reconveyance to them was reconveyance to them as heirs of Celestino Salvador. It follows that the properties they claim are, even by their own reasoning, part of Celestino's estate. The right thereto as allegedly his heirs would arise only if said parcels of land are part of the estate of Celestino, not otherwise. Their having received the same, therefore, in the reconveyance action, was perforce in trust for the estate, subject to its obligations. They cannot distribute said properties among themselves as substituted heirs without the debts of the estate being first satisfied.

At any rate, the proceeds of Lot 6 alone (P41,184.00) appeared more than sufficient to pay the debt (P38,872.58); and there will remain the other parcels of land not sold. As to the question of who will receive, how much as heirs, the same is properly determinable by the settlement court, after payment of the debts (Pimentel v Palanca, 5 Phil 436; Maningat v Castillo, 75 Phil 532; Jimoga-on v Belmonte, supra)

Wherefore, the petition for certiorari is denied, with costs. So ordered.

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CONCEPCION, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez and Castro, J.J., concur.

56

RAMIREZ v BALTAZARNo. L-25049, 30 August 1968

24 SCRA 918

While it is true that heirs inherit from the moment of the death of the decedent, the heirs are, pending judicial confirmation of heirship, precluded from commencing an action arising out of the rights belonging to the deceased. The rule is necessary for an orderly administration of the estate of the deceased person. Therefore, as a rule the power to commence suit in behalf of the estate is generally given only to the administrator. However, where the administrator fails or refuses to act, or cannot be expected to act in a particular circumstance, then by way of an exception to the rule, the heirs may commence the necessary action even if in the meantime, their heirship has not been judicially confirmed.

In general, the rights to the succession are transmitted from the moment of death of the decedent. The right to commence suit is not, however, one of those rights granted to the heirs, pending judicial confirmation of heirship. What is the justification for denying an heir the right to commence legal action before judicial confirmation of heirship?

The very patent conflict of interest demonstrated in this case must be noted.

Angeles, J.:

x x x

It appears that on 6 January 1959, Victoriana Eguaras, single, made and executed a real estate mortgage over a parcel of land owned by her in fee simple, as security for a loan of P2,170.00 in favor of the spouses Artemio Baltazar and Susana Flores.

Upon the demise of the mortgagor, the mortgagees, as creditors of the deceased, on 16 September 1960 filed a petition for the intestate proceedings of her estate, in the court of First Instance of Laguna, docketed as Civil Case No. SC-99 wherein said mortgagees, as petitioners, alleged that Filemon Ramirez and Monica Ramirez are the heirs of the deceased. Filemon Ramirez was appointed administrator of the estate; however, having failed to qualify, on 16 January 1961 the court appointed Artemio Diawan, then deputy clerk of court, administrator of the estate who, in due time, qualified for the office.

On 19 April 1961, the mortgagees Artemio Baltazar and Susana Flores, filed a complaint for foreclosure of the aforesaid mortgage, against Artemio Diawan, in his capacity as administrator of the estate, docketed as Civil Case No. SC-292 of the Court of First Instance of Laguna. The defendant-administrator was duly served with summons but he failed to answer, whereupon, on petition of the plaintiffs said defendant was declared in default. The case was referred to a commissioner to receive the evidence for the plaintiffs, and defendant-administrator, as deputy clerk of

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court, acted as such hearing commissioner.On 16 August 1961, decision was rendered decreeing the foreclosure of the

mortgaged property and the sale thereof, if within ninety days from finality of the decision, the obligation was not fully paid. The judgment not having been satisfied, a writ of execution was issued for the sale of the mortgaged property, and after compliance with the requirements of the law regarding the sending, posting and publication of the notice of sale, the sheriff sold the property at public auction to the highest bidder, who happened to be the plaintiffs themselves x x x. On petition of the plaintiffs, the sale was confirmed by the court on 26 January 1962.

On 6 February 1962, Filemon Ramirez, Monica Ramirez and Jose Eguaras, the first two being the heirs named in the petition for intestate proceedings, filed a complaint designated "For the Annulment of all Proceedings in said Civil Case No. SC-292 for the Foreclosure of the Mortgage", against the spouses Artemio Baltazar and Susana Flores, and Artemio Diawan, in his capacity as administrator of the estate of Victoriana Eguaras, deceased, and Silverio Talabis, in his capacity as deputy provincial sheriff of Laguna, docketed as Civil Case No SC-319 of the Court of First Instance of Laguna.

The facts hereinabove narrated are succinctly contained in the complaint in said Civil Case No. SC-319, with the additional averments that the defendant Diawan, the deputy clerk of court appointed as administrator of the intestate estate of the deceased, acted in collusion with the other defendants Artemio Baltazar and Susana Flores, deliberately and in fraud of the plaintiffs: (a) in allowing the elementary period within which to file an answer to lapse without notifying and/or informing the said plaintiffs of the complaint for foreclosure, as a result of which he was declared in default to the prejudice of the estate which he represents; (b) that had the plaintiffs (Monica and Filemon) been notified of the pendency of the case, the defendant-administrator could have interposed a counterclaim because payment in the sum of P1,548.52 had been made and received by the mortgagees on account of the debt; (c) in presiding as hearing officer in the ex parte hearing in Civil Case No. 292, to receive evidence for plaintiffs therein, notwithstanding the fact that there was another deputy clerk of court available who could have acted in his stead, as a result of which an anomalous situation was created whereby he was a defendant and at the same time a commissioner receiving evidence against himself as administrator; (d) in allowing judgment to become final without notifying the plaintiffs; (e) in deliberately allowing the 90-day period within which to make payment to expire without notifying the heirs, as a result of which the said heirs were not afforded an opportunity to make payments ordered by the court in its decision; and (f) in refusing to help the heirs seek postponement of the auction sale. It is also alleged that it was only when the property foreclosed was published for sale at public auction that the heirs came to know about the foreclosure proceedings.

The defendant spouses, Artemio Baltazar and Susana Flores, filed a motion to dismiss the complaint on the ground that the plaintiffs have no legal capacity to sue; defendant Diawan likewise moved to dismiss on two grounds: that plaintiffs have no legal capacity to sue and that the complaint states no cause of action.

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x x xReconsideration of the aforesaid order having been denied, the plaintiffs took

the present appeal where they assigned the following errors: (1) in holding that plaintiff-appellants have no legal capacity to sue until their status as legal heirs of the deceased is determined in Special Proceeding No. SC-99; (2) in ruling that there was no collusion or connivance among the defendants-appellees, despite the fact that the issue in the motion to dismiss is purely legal, not factual; and (3) in denying the petition for a writ of preliminary injunction.

At the outset, let it be remembered that the defendants-appellees, in availing themselves of the defense that the plaintiffs-appellants had not been declared to be the heirs of the deceased Victoriana Eguaras, have overlooked the fact that they (defendants-appellees) themselves in their petition for intestate proceedings (Case SC-99) have alleged that Filemon Ramirez and Monica Ramirez, two of the herein plaintiffs-appellants, are the heirs of the deceased. Insofar as defendants-appellees are concerned, it is our opinion that they are estopped from questioning the heirship of these two named persons to the estate of the deceased.

There is no question that the rights to succession are automatically transmitted to the heirs from the moment of death of the decedent. While, as a rule, the formal declaration or recognition to such successional rights needs judicial confirmation, this court has, under special circumstances, protected these rights from encroachments made or attempted before the judicial declaration. In Pascual v Pascual, it was ruled that although heirs have no legal standing in court upon the commencement of testate or intestate proceedings, this rule admits of an exception as "when the administrator fails or refuses to act, in which event the heirs may act in his place."

A similar situation obtains in the case at bar. The administrator is being charged to have been in collusion and connivance with the mortgagees of a property of the deceased, allowing its foreclosure without notifying the heirs, to the prejudice of the latter. Since the ground for the present action to annul the aforesaid foreclosure proceedings is the fraud resulting from such insidious machinations and collusion in which the administrator has allegedly participated, it would be farfetched to expect the said administrator himself to file the action in behalf of the estate. And who else but the heirs, who have an interest to assert and to protect, would bring the action? Inevitably, this case should fall under the exception, rather than the general rule that pending proceedings for the settlement of the estate, the heirs have no right to commence an action arising out of the rights belonging to the deceased.

x x x

PREMISES CONSIDERED, the order appealed from is hereby set aside insofar as it dismissed the complaint in Civil Case No. SC-319, and the records are remanded to the lower court for further proceedings. Cost against defendants-appellants.

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Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro and Fernando, J.J., concur.

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PUNO v PUNO ENTERPRISES, INC.G.R. No. 177066, 11 September 2009

599 SCRA 585

Notwithstanding Article 777, an alleged heir of a deceased stockholder does not, upon the demise of the stockholder, automatically become a stockholder of the corporation.

Nachura, J.:

x x x

Carlos L. Puno, who died on June 25, 1963, was an incorporator of respondent Puno Enterprises, Inc. On March 14, 2003, petitioner Joselito Musni Puno, claiming to be an heir of Carlos L. Puno, initiated a complaint for specific performance against respondent. Petitioner averred that he is the son of the deceased with the latter’s common-law wife, Amelia Puno. As surviving heir, he claimed entitlement to the rights and privileges of his late father as stockholder of respondent. The complaint thus prayed that respondent allow petitioner to inspect its corporate books, render an accounting of all the transactions it entered into from 1962, and give petitioner all the profits, earnings, dividends or income pertaining to the shares of Carlos L. Puno.

Respondent filed a motion to dismiss on the ground that petitioner did not have the legal personality to sue because his birth certificate names him as “Joselito Musni Muno.” Apropos, there was yet a need for a judicial declaration that “Joselito Musni Puno” and Joselito Musni Muno” were one and the same.

The court ordered that the proceedings be held in abeyance, ratiocinating that petitioner’s certificate of live birth was no proof of his paternity and relation to Carlos L. Puno.

Petitioner submitted the corrected birth certificate with the name “Joselito M. Puno,” certified by the Civil Registrar of the City of Manila, and the Certificate of Finality thereof. To hasten the disposition of the case, the court conditionally admitted the corrected birth certificate as genuine and authentic and ordered respondent to file its answer within fifteen days from the order and set the case for pretrial.

On October 11, 2005, the court rendered a Decision, the dispositive portion of which reads:

“WHEREFORE, judgment is hereby rendered ordering Jesusa Puno and/or Felicidad Fermin to allow the plaintiff to inspect the corporate books and records of the company from 1962 up to the present including the financial statements of the corporation.

The cost of copying shall be shouldered by the plaintiff. Any expenses to be incurred by the defendant to be able to comply with this order shall be the subject of a bill of costs.”

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On appeal, the CA ordered the dismissal of the complaint in its decision dated October 11, 2006. According to the CA, petitioner was not able to establish the paternity of and his filiation to Carlos L. Puno since his birth certificate was prepared without the intervention of and the participatory acknowledgment of paternity by Carlos L. Puno. Accordingly, the CA said that petition had no right to demand that he be allowed to examine respondent’s books. Moreover, petitioner was not a stockholder of the corporation but was merely claiming rights as an heir of Carlos L. Puno, an incorporator of the corporation. His action for specific performance therefore appeared to be premature; the proper action to be taken was to prove the paternity of and his filiation to Carlos L. Puno in a petition for the settlement of the estate of the latter.

Petitioner’s motion for reconsideration was denied by the CA in its resolution dated March 6, 2007.

x x x

The petition is without merit. Petitioner failed to establish the right to inspect respondent corporation’s books and receive dividends on the stocks owned by Carlos L. Puno.

Petitioner anchors his claim on his being an heir of the deceased stockholder. However, we agree with the appellate court that petitioner was not able to prove satisfactorily his filiation to the deceased stockholder, thus, the former cannot claim to be an heir of the latter.

x x x

A certificate of live birth purportedly identifying the putative father is not competent evidence of paternity when there is no showing that the putative father had a hand in the preparation of the certificate. The local civil registrar has no authority to record the paternity of an illegitimate child on the information of a third person. As correctly observed by the CA, only petitioner’s mother supplied the data in the birth certificate and signed the same. There was no evidence that Carlos L. Puno acknowledged petitioner as his son.

In any case, Sections 74 and 75 of the Corporation Code enumerate the persons who are entitled to the inspection of corporate books, thus-

“Sec. 74. Books to be kept, stock transfer agent. - x x x

The records of all business transactions of the corporation and the minutes of any meeting shall be open to the inspection of any director, trustee, stockholder or member of the corporation at reasonable hours on business days and he may demand, in writing, for a copy of excerpts from said records of minutes, at his expense.

x x x

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Sec. 75. Right to financial statements. – Within ten (10) days from receipt of a written request of any stockholder or member, the corporation shall furnish to him its most recent financial statement, which shall include a balance sheet as of the end of the last taxable year and a profit and loss of statement for said taxable year, showing in reasonable detail its assets and liabilities and the result of its operations.”

The stockholders’ right of inspection of the corporation’s books and records is based upon his ownership of shares in the corporation and the necessity for self-protection. After all, a shareholder has the right to be intelligently informed about corporate affairs. Such right rests upon the stockholders’ underlying ownership of the corporation’s assets and property.

Similarly, only stockholders of record are entitled to receive dividends declared by the corporation, a right inherent in the ownership of the shares.

Upon the death of a shareholder, the heirs do not automatically become stockholders of the corporation and acquire the rights and privileges of the deceased as shareholder of the corporation. The stocks must be distributed first to the heirs in estate proceedings, and the transfer of the stocks must be recorded in the books of the corporation. Section 63 of the Corporation Code provides that no transfer shall be valid, except as between the parties, until the transfer is recorded in the books of the corporation. During such interim period, the heir stands as the equitable owner of the stocks, the executor or administrator duly appointed by the court being vested with the legal title to the stock. Until a settlement and division of the estate is effected, the stocks of the decedent are held by the administrator or executor. Consequently, during such time, it is the administrator or executor who is entitled to exercise the rights of the deceased as stockholder.

Thus, even if petitioner presents sufficient evidence in his case to establish that he is the son of Carlos L. Puno, he would still not be allowed to inspect respondent’s books and be entitled to receive dividends from respondent, absent any showing in its transfer book that some of the shares owned by Carlos L. Puno were transferred to him. This would only be possible if petitioner has been recognized as an heir and has participated in the settlement of the estate of the deceased.

x x x

WHEREFORE, premises considered, the petition is DISMISSED. The Court of Appeals Decision dated October 11, 2006 and Resolution dated March 6, 2007 are AFFIRMED.

SO ORDERED.

Ynares-Santiago (Chairperson), Chico-Nazario, Velasco, Jr. and Peralta, JJ., concur.

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REYES v REGIONAL TRIAL COURT OF MAKATI BR. 142G.R. No. 165744, 11 August 2008

561 SCRA 593

Further to Puno v Puno Enterprises, Inc., the Supreme Court in this case clarified the relationship between the corporation, on the one hand, and the heirs of a deceased stockholder, on the other. While the ruling in relation to Section 63 of the Corporation Code seems to be correct, the dictum of the court in relation to the opening of succession under Article 777 of the Civil Code, and the consequences thereof, appear to be debatable. In addition, the ruling of the Supreme Court in relation to the acquisition or vesting of title to the estate of the deceased person in favor of the latter’s heirs is clearly in conflict with the statutory definition of the term “inheritance” in Article 776 of the Civil Code.

Finally, the statement of the Court to the effect that the undivided interest of the co-heirs, in relation to the shares forming part of the estate of the deceased person, is “still inchoate and subject to the outcome of a settlement proceedings” is rather disturbing as it clearly runs against the explicit dictum of Article 777. See the ruling in Santos v Lumbao, 519 SCRA 408, supra.

Brion, J.:

x x x

Application of the Relationship Test

Is there an intra-corporate relationship between the parties that would characterize the case as an intra-corporate dispute?

We point out at the outset that while Rodrigo holds shares of stock in Zenith, he holds them in two capacities: in his own right with respect to the 4,250 shares registered in his name, and as one of the heirs of Anastacia Reyes with respect to the 136,598 shares registered in her name. What is material in resolving the issues of this case under the allegations of the complaint is Rodrigo’s interest as an heir since the subject matter of the present controversy centers on the shares of stocks belonging to Anastacia, not on Rodrigo’s personally-owned shares. In this light, all reference to shares of stocks in this case shall pertain to the shareholdings of the deceased Anastacia and the parties’ in interest therein as her heirs.

Article 777 of the Civil Code declares that the successional rights are transmitted from the moment of death of the decedent. Accordingly, upon Anastacia’s death, her children acquired legal title to her estate (which title includes her shareholdings in Zenith), and they are, prior to the estate’s partition, deemed co-owners thereof. This status as co-owners, however, does not immediately and necessarily make them stockholders of the corporation. Unless and until there is compliance with Section 63 of the Corporation Code on the manner of transferring shares, the heirs do not become registered stockholders of the corporation. Section 63

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provides:“Section 63, Certificate of stock and transfer of shares. – The capital stock of stock corporations shall be divided into shares for which certificates signed by the president or vice-president, countersigned by the secretary or assistant secretary, and sealed with the seal of the corporation, shall be issued in accordance with the by-laws. Shares of stock so issued are personal property and may be transferred by delivery of the certificate or certificates indorsed by the owner or his attorney-in-fact or other person legally authorized to make the transfer. No transfer, however, shall be valid, except as between the parties, until the transfer is recorded in the books of the corporation so as to show the names of the parties to the transaction, the date of the transfer, the number of the certificate or certificates, and the number of shares transferred.

No shares of stock against which the corporation holds any unpaid claims shall be transferable in the books of the corporation.”

Simply stated, the transfer of title by means of succession, though effective and valid between the parties involved (i.e., between the decedent’s estate and her heirs), does not bind the corporation and third parties. The transfer must be registered in the books of the corporation to make the transferee-heir a stockholder entitled to recognition as such both by the corporation and by third parties.

We note, in relation with the above statement, that in Abejo v de la Cruz, and TCL Sales Corporation v Court of Appeals we did not require the registration of the transfer before considering the transferee a stockholder of the corporation (in effect upholding the existence of an intra-corporate relation between the parties and bringing the case within the jurisdiction of the SEC as an intra-corporate controversy). A marked difference, however, exists between these cases and the present one.

In Abejo and TCL Sales, the transferees held definite and uncontested titles to a specific number of shares of the corporation; after the transferee had established prima facie ownership over the shares of stock in question, registration became a mere formality in confirming their status as stockholders. In the present case, each of Anastacia’s heirs holds only an undivided interest in the shares. This interest, at this point, is still inchoate and subject to the outcome of a settlement proceedings; the right of the heirs to specific, distributive shares of inheritance will not be determined until all the debts of the estate of the decedent are paid. In short, the heirs are only entitled to what remains after payment of the decedent’s debts; whether there will be residue remains to be seen. Justice Jurado aptly puts it as follows:

“No succession shall be declared unless and until a liquidation of the assets and debts left the decedent shall have been made and all his creditors are fully paid. Until a final liquidation is made and all the debts are paid, the right of the heirs to inherit remains inchoate. This is so because under our rules of procedure, liquidation is necessary in order to determine whether or not the decedent has left any liquid assets which may be transmitted to his heirs.”

Rodrigo must, therefore, hurdle two obstacles before he can be considered a stockholder of Zenith with respect to the shareholdings originally belonging to

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Anastacia. First, he must prove that there are shareholdings that will be left to him and his co-heirs, and this can be determined only in a settlement of the decedent’s estate. No such proceeding has been commenced to date. Second, he must register the transfer of the shares allotted to him to make it binding against the corporation. He cannot demand that this be done unless and until he has established his specific allotment (and prima facie ownership) of the shares. Without the settlement of Anastacia’s estate, there can be no definite partition and distribution of the estate to the heirs. Without the partition and distribution, there can be no registration of the transfer. And without the registration, we cannot consider the transferee-heir a stockholder who may invoke the existence of an intra-corporate relationship as premise for an intra-corporate controversy within the jurisdiction of a special commercial court.

In sum, we find that – insofar as the subject shares of stock (i.e., Anastacia’s shares) are concerned – Rodrigo cannot be considered a stockholder of Zenith. Consequently, we cannot declare that an intra-corporate relationship exists that would serve as basis to bring this case within the special commercial court’s jurisdiction under Section 5(b) of PD 902-A, as amended. Rodrigo’s complaint, therefore, fails the relationship test.

x x x

SO ORDERED.

Quisumbing (Chairperson), Corona, Carpio-Morales and Velasco, JJ., concur.

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SANTOS v LUMBAOG.R. No. 169129, 28 March 2007

519 SCRA 408

Santos explains in very specific terms the rights of the co-heirs, as co-owners of the estate of a deceased person. The decision specifically refers to a parcel of land which, upon the death of the decedent, passed in co-ownership to her children.

The dictum in this case should be compared to the ponencia of Justice Brion in Reyes v Regional Trial Court of Makati, infra, where he stated: “In the present case, each of Anastacia’s heirs holds only an undivided interest in the shares. This interest, at this point, is still inchoate and subject to the outcome of a settlement proceedings; the right of the heirs to specific, distributive shares of inheritance will not be determined until all the debts of the estate of the decedent are paid. “ You will note that Rita, in this case, validly sold to the Spouses Lumbao a portion (107 square meters) of her undivided share in the property (467 square meters in the aggregate) even while the property still stood in the name of her mother Maria from whom She (Rita) inherited the same. This ruling contradicts Justice Brion’s opinion that pending the settlement proceedings, the undivided rights of co-heirs to the inheritance is at best inchoate; for if such rights were inchoate, Rita would not have been able to sell a portion of her undivided share to the Spouses Lumbao. At best, Rita would have been able to sell a mere expectancy. The question now is: which decision is correct?

Chico-Nazario, J.:

x x x

Herein petitioners Virgilio, Victorio, Ernesto and Tadeo, all surnamed Santos, are the legitimate and surviving heirs of the late Rita Catoc Santos (Rita), who died on 20 October 1985. The other petitioners, Esperanza Lati and Lagrimas Santos are the daughter-n-law of Rita.

Herein respondents Spouses Jose Lumbao and Proserfina Lumbao are the alleged owners of the 107-square meter lot (subject property), which they purportedly bought from Rita during her lifetime.

The facts of the present case are as follows:

On two separate occasions during her lifetime, Rita sold to respondent Spouses Lumbao the subject property which is a part of her share in the estate of her deceased mother, Maria Catoc (Maria), who died intestate on 19 September 1978. On the first occasion, Rita sold 100 square meters of her inchoate share in her mother’s estate through a document denominated as “Bilihan ng Lupa,” dated 17 August 1979. Respondents Spouses Lumbao claimed the execution of the aforesaid document was witnessed by petitioners Virgilio and Tadeo, as shown by their signatures affixed therein. On the second occasion, an additional seven square meters was added to the land as evidenced by a document also denominated as “Bilihan ng Lupa,” dated 9

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January 1981.

After acquiring the subject property, respondents Spouses Lumbao took actual possession thereof and erected thereon a house which they have been occupying as exclusive owners up to the present. As the exclusive owners of the subject property, respondent Spouses Lumbao made several verbal demands upon Rita, during her lifetime, and thereafter upon herein petitioners, for them to execute the necessary documents to effect the issuance of a separate title in favor of respondents Lumbao insofar as the subject property is concerned. Respondent Spouses Lumbao alleged that prior to her death, Rita informed respondent Proserfina Lumbao she could not deliver the title to the subject property because the entire property inherited by her and her co-heirs form Maria had not yet been partitioned.

On 2 May 1986, the Spouses Lumbao claimed that petitioners, acting fraudulently and in conspiracy with one another, executed a Deed of Extrajudicial Settlement, adjudicating and partitioning among themselves and the other heirs, the estate left by Maria, which included the subject property already sold to respondent Spouses Lumbao and now covered by TCT No. 81729 of the Registry of Deeds of Pasig City.

On 15 June 1992, respondent Spouses Lumbao, through counsel, sent a formal demand letter to petitioners but despite receipt of such demand letter, petitioners still failed and refused to reconvey the subject property to the respondents Spouses Lumbao. Consequently, the latter filed a complaint for Reconveyance with Damages before the RTC of Pasig City.

Petitioners filed their Answer denying the allegations that the subject property had been sold to the respondent Spouses Lumbao. They likewise denied that the Deed of Extrajudicial Settlement had been fraudulently executed because the same was duly published as required by law. x x x.

Respondent Spouses Lumbao, with leave of court, amended their complaint because they discovered that on 16 February 1990, without their knowledge, petitioners executed a Deed of Real Estate Mortgage in favor of Julieta S. Esplana for the sum of P30,000.00. The said Deed of Real Estate Mortgage was annotated at the back of TCT No. PT-817729 on 26 April 1991.

x x x

The trial court rendered a Decision on 17 June 1998, the dispositive portion of which reads as follows:

“Premises considered, the instant complaint is hereby denied for lack of merit.

Considering that [petitioners] have incurred expenses in order to protect their interest, [respondent spouses Lumbao] are hereby directed to pay [petitioners], to wit: 1) the amount of P30,000 as attorney’s fees and litigation expenses, and

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2) cost of suit.”

Aggrieved, respondents Spouses Lumbao appealed to the Court of Appeals. On 8 June, the appellate court rendered a Decision, thus:

“WHEREFORE, premises considered, the present appeal is hereby GRANTED. The appealed Decision dated June 17, 1998 of the Regional Trial Court of Pasig City, Branch 69 in Civil Case No. 62175 is hereby REVERSED and SET ASIDE. A new judgment is hereby entered ordering [petitioners] to reconvey 107 square meters of the subject [property] covered by TCT No. PT-81729 of the Registry of Deeds of Pasig City, Metro Manila, and to pay to [respondents spouses Lumbao] the sum of P30,000,00 for attorney’s fees and litigation expenses.”

x x x

Hence, this Petition.

x x x

Petitioners allege that are in good faith in executing the Deed of Extrajudicial Settlement because even respondents Spouses Lumbao’s witness, Carolina Morales, testified that neither petitioner Virgilio nor petitioner Tadeo was present during the execution of the “Bilihan ng Lupa,” dated 17 August 1979 and 9 January 1981. Petitioners affirm that the Deed of Extrajudicial Settlement was published in a newspaper of general circulation to give notice to all creditors of the estate subject of partition to contest the same within the period prescribed by law. Since no claimant appeared to interpose a claim within the period allowed by law, a title to the subject property was then issued in favor of petitioners; hence they are considered as holders in good faith and therefore cannot be barred from entering into any subsequent transactions involving the property.

Petitioners also contend that they are not bound by the documents denominated as “Bilihan ng Lupa” because the same were null and void for the following reasons: 1) for being falsified documents because one of those documents made it appear that petitioners Virgilio and Tadeo were witnesses to its execution and that they appeared personally before the notary public, when in truth and in fact they did not; 2) the identities of the properties in the “Bilihan ng Lupa” dated 17 August 1979 and 9 January 1981 in relation to the subject property in litigation were not established by the evidence presented by the respondents Spouses Lumbao; 3) the right of the respondents Spouses Lumbao to lay their claim over the subject property had already been barred through estoppel by laches; and 4) the respondent Spouses Lumbao’s claim over the subject property had already prescribed.

x x x

The defense of petitioners that the identities of the properties described in the “Bilihan ng Lupa” x x x in relation to the subject property were not established by

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respondents Spouses Lumbao’s evidence is likewise not acceptable.It is noteworthy that at the time of the execution of the documents

denominated as “Bilihan ng Lupa,” the entire property owned by Maria, the mother or Rita, was not yet divided among her and her co-heirs and so the description of the entire estate is the only description that can be placed in the “Bilihan ng Lupa, dated 17 August 1979 and 9 January 1981” because the exact metes and bounds of the subject property sold to respondents Spouses Lumbao cold not be possibly determined at the time. Nevertheless, that does not make the contract of sale between Rita and respondents Spouses Lumbao invalid because both the law and jurisprudence have categorically held that even while an estate remains undivided, co-owners have each full ownership of their respective aliquot or undivided shares and may therefore alienate, assign or mortgage them. The co-owner, however, has no right to sell or alienate a specific or determinate part of the thing owned in common, because such right over the thing is represented by an aliquot or ideal portion without any physical division. In any case, the mere fact that the deed purports to transfer a concrete portion does not per se render the sale void. The sale is valid, but only with respect to the aliquot share of the selling co-owner. Furthermore, the sale is subject to the results of the partition upon the termination of the co-ownership.

In the case at bar, when the estate left by Maria had been partitioned on 2 May 1986 by virtue of the Deed of Extrajudicial Settlement, the 107-square meter lot sold by the mother of the petitioners to respondents Spouses Lumbao should be deducted from the total lot inherited by them in representation of their deceased mother, which in this case measures 467 square meters. The 107-square meter lot already sold to respondent Spouses Lumbao can no longer be inherited by the petitioners because the same was no longer part of their inheritance as it was already sold during the lifetime of their mother.

x x x Hence, the “Bilihan ng Lupa” documents dated 17 August 1979 and 9 January 1981, being valid and enforceable, herein petitioners are bound to comply with their provisions. In short, such documents are absolutely valid between and among the parties thereto.

Finally, the general rule that heirs are bound by contracts entered into by their predecessors-in-interest applies in the present case. Article 1311 of the NCC is the basis of this rule. It is clear from the said provision that whatever rights and obligations the decedent have over the property were transmitted to the heirs by way of succession, a mode of acquiring property, rights and obligations of the decedent to the extent of the value of the inheritance of the heirs. Thus, the heirs cannot escape the legal consequences of a transaction entered into by their predecessor-in-interest because they have inherited the property subject to the liability affecting their common ancestor. Being heirs, there is privity of interest between them and their deceased mother. They only succeed to what rights their mother had and what is valid and binding against her is also valid and binding as against them. The death of a party does not excuse nonperformance of a contract which involves a property right and the rights and obligations thereunder pass to the personal representatives of the

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deceased. Similarly, nonperformance is not excused by the death of a party when the other party has a property interest in the subject matter of the contact.

x x x

WHEREFORE, premises considered, the instant Petition is hereby DENIED. The Decision and Resolution of the Court of Appeals dated 8 June 2005 and 29 July 2005, respectively are hereby AFFIRMED. Herein petitioners are ordered to reconvey to respondents Spouses Lumbao the subject property and to pay the latter attorney’s fees and litigation expenses. Costs against petitioners.

SO ORDERED.

Ynares-Santiago (Chairperson), Austria-Martinez, Callejo Sr. and Nachura, J. concur.

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BLAS v SANTOSNo. L-14070, 29 March 1961

1 SCRA 899

Article 776 of the Civil Code defines the inheritance of a person. Article 1347 of the same Code prohibits any contract involving future inheritance. Blas interprets the meaning of Article 1347 in connection with Article 776.

Labrador, J.:

x x x Simeon Blas contracted a first marriage with Marta Cruz sometime before 1898. They had three children, only one of whom, Eulalio, left children, namely, Maria Gervacio Blas, one of the plaintiffs, Marta Gervacio Blas, one of the defendants, and Lazaro Gervacio Blas. Lazaro died in 1953 and is survived by three legitimate children who are plaintiffs herein, namely, Manuel Gervacio Blas, Leoncio Gervacio Blas and Loida Gervacio Blas. Marta Cruz died in 1898, and the following year, Simeon Blas contracted a second marriage with Maxima Santos. At the time of this second marriage, no liquidation of the properties acquired by Simeon Blas and Marta Cruz was made.

x x x.

On December 26, 1936, only over a week before his death on January 9, 1937, Simeon Blas executed a last will and testament. In the said testament, Simeon Blas makes the following declarations: x x x

I.

2. During my second marriage with Maxima Santos de Blas, I possessed and acquired wealth and properties, consisting of lands, fishponds and other kinds of properties, the total assessed value of which reached the amount of P678,880.00.

II.

1. One-half of our properties, after the payment of my and our indebtedness, all these properties having been acquired during marriage (conjugal properties), constitutes the share of my wife Maxima Santos de Blas, according to law.

x x x

The reason why the testator ordered the preparation of Exhibit "A" was because the properties that the testator had acquired during his first marriage with Marta Cruz had not been liquidated and were not separated from those acquired during the second marriage.

The document which was thus prepared and which is marked as Exhibit "A" reads in Tagalog, x x x: and which translated into English, reads as follows:

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"KNOW ALL MEN BY THESE PRESENTS:

That I, MAXIMA SANTOS de BLAS, of legal age, married to SIMEON BLAS, resident of Malabon, Rizal, Philippines, voluntarily state:

That I have read the know the contents of the will signed by my husband, SIMEON BLAS, (2) and I promise on my word of honor in the presence of my husband that I will respect and obey all and every disposition of said will, (3) and furthermore, I promise in this document that all the properties my husband and I will leave, the portion and share corresponding to me when I make my will, I will give one-half (1/2) to the heirs and legatees or the beneficiaries named in the will of my husband, (4) and that I can select or choose any of them, to whom I will give, depending upon the respect, service and treatment accorded to me.

IN WITNESS WHEREOF, I signed this document this 26th day of December 1936 at San Francisco del Monte, San Juan, Rizal, Philippines.

Sgd. MAXIMA SANTOS DE BLAS"

The court below held that said Exhibit "A" has not created any right in favor of plaintiffs which can serve as a basis for the complaint; that neither can it be considered as a valid and enforceable contract for lack of consideration and because it deals with future inheritance. The court also declared that Exhibit "A" is not a will because it does not comply with the requisites for the execution of a will; nor could it be considered as a donation.

Both the court below in its decision and the appellees in their brief before us, argue vehemently that the heirs of Simeon Blas and his wife Marta Cruz can no longer make any claim for the unliquidated conjugal properties acquired during said first marriage, because the same were already included in the mass of properties constituting the estate of the deceased Simeon Blas and in the adjudications made by virtue of his will, and that the action to recover the same has prescribed. This contention is correct. The descendants of Marta Cruz can no longer claim the conjugal properties that she and her husband may have acquired during their marriage although no liquidation of such properties and delivery thereof to the heirs of Marta Cruz have been made, no action to recover the said properties having been presented in the proceedings for the settlement of the estate of Simeon Blas.

But the principal basis for the plaintiff's action in the case at bar is the document Exhibit "A". It is not disputed that this document was prepared at the instance of Simeon Blas for the reason that the conjugal properties of his first marriage had not been liquidated; that it was prepared at the same time as the will of Simeon Blas on December 26, 1936, at the instance of the latter himself. It is also not disputed that the document was signed by Maxima Santos x x x.

Plaintiffs-appellants argue before us that Exhibit "A" is both a trust agreement and a contract in the nature of a compromise to avoid litigation. Defendants-appellees,

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in answer, claim that it is neither a trust agreement nor a compromise agreement. Considering that the properties of the first marriage of Simeon Blas had not been liquidated when Simeon Blas executed his will x x x, and the further fact that such properties were actually included as conjugal properties acquired during the second marriage, we find, as contended by plaintiffs-appellants, that the preparation and execution of Exhibit "A" was ordered by Simeon Blas evidently to prevent his heirs by his first marriage from contesting his will and demanding liquidation of the conjugal properties acquired during the first marriage, and an accounting of the fruits and proceeds thereof from the time of the death of his first wife.

Exhibit "A" therefore, appears to be the compromise defined in Article 1809 of the Civil Code of Spain, in force at the time of the execution of Exhibit "A", which provides as follows:

"Compromise is a contract by which each of the parties in interest, by giving, promising, or retaining something avoids the provocation of a suit or terminates one which has already been instituted."

x x x The agreement or promise that Maxima Santos makes in Exhibit "A" is to hold one-half of her said share in the conjugal assets in trust for the heirs and legatees of her husband in her will, with the obligation of conveying the same to such of his heirs or legatees as she may choose in her last will and testament. It is to be noted that the conjugal properties referred to are those that were actually existing at that time, December 26, 1936. Simeon Blas died on January 9, 1937. x x x Under Exhibit "A" therefore, Maxima Santos contracted the obligation and promised to give one-half of the above indicated properties to the heirs and legatees of Simeon Blas.

Counsel for the defendants-appellees claims Exhibit "A" is a worthless piece of paper because it is not a will nor a donation mortis causa nor a contract. As we have indicated above, it is a compromise and at the same time a contract with a sufficient cause or consideration. It is also contended that it deals with future inheritance. It is an obligation or promise made by the maker to transmit one-half of her share in the conjugal properties acquired with her husband, which properties are stated or declared to be conjugal properties in the will of the husband. The conjugal properties were in existence at the time of the execution of Exhibit "A" on December 26, 1936. As a matter of fact, Maxima Santos included these properties in her inventory of her husband's estate x x x. The promise does not refer to any properties that the maker would inherit upon the death of her husband. The document refers to existing properties which she will receive by operation of law on the death of her husband, because it is her share in the conjugal assets. That the kind of agreement or promise contained in Exhibit "A" is not void under Article 1271 of the old Civil Code, has been decided by the Supreme Court of Spain x x x.

The trial court held that the plaintiffs-appellants in the case at bar are concluded by the judgment rendered in the proceedings for the settlement of the estate of Simeon Blas for the reason that the properties left by him belonged to himself and his wife Maxima Santos; that the project of partition in the said case, adjudicating to Maxima Santos one-half as her share in the conjugal properties, is a

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bar to another action on the same subject matter, Maxima Santos having become absolute owner of the said properties adjudicated in her favor. As already adverted to above, these contentions would be correct if applied to the claim of the plaintiffs-appellants that said properties were acquired with the first wife of Simeon Blas, Marta Cruz. But the main ground upon which plaintiffs base their present action is the document Exhibit "A", already fully considered above. As this private document contains the express promise made by Maxima Santos to convey in her testament, upon her death, one-half of the conjugal properties she would receive as her share in the conjugal properties, the action to enforce the said promise did not arise until and after her death when it was found that she did not comply with her above-mentioned promise. (Art, 1969, old Civil Code) The argument that the failure of the plaintiffs-appellants herein to oppose the project of partition in the settlement of the estate of Simeon Blas, especially that portion of the project which assigned to Maxima Santos one-half of all the conjugal properties, bars their present action, is therefore, devoid of merit. It may be added that plaintiffs-appellants did not question the validity of the project of partition precisely because of the promise made by Maxima Santos in Exhibit "A"; they acquiesced in the approval of said project of partition because they were relying on the promise made by Maxima Santos in Exhibit "A", that she would transmit one-half of the conjugal properties that she was going to receive as her share in the conjugal partnership, upon her death and in her will, to the heirs and legatees of her husband, Simeon Blas.

x x x

It is evident x x x that Maxima Santos did not comply with her obligation to devise one-half of her conjugal properties to the heirs and legatees of her husband. x x x If she intended to comply therewith by giving some of the heirs of Simeon Blas the properties mentioned above, the most that can be considered in her favor is to deduct the value of said properties from the total amount of properties which she had undertaken to convey upon her death.

x x x

WHEREFORE, the judgment appealed from is hereby reversed and the defendant-appellee, administratrix of the estate of Maxima Santos, is ordered to convey and deliver one-half of the properties adjudicated to Maxima Santos as her share in the conjugal properties in said Civil Case No. 6707, entitled "Testamentaria del Finado Don Simeon Blas, Maxima Santos vda. de Blas, Administradora," to the heirs and the legatees of her husband Simeon Blas. Considering that all said heirs and legatees designated in the will of Simeon Blas as the persons for whose benefit Exhibit "A" had been executed, have not appeared in these proceedings, the record is hereby remanded to the court below, with instructions that after the conveyance of the properties hereinabove ordered had been effected, the said heirs and legatees (of Simeon Blas) file adversary pleadings to determine the participation of each and every one of them in said properties. Cost against the defendant-appellee Rosalina Santos.

Padilla, Paredes and Dizon, JJ., concur. Reyes, J.B.L. and Barrera, JJ., concur in a

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separate opinion. Bengzon, C.J., reserves his vote. Concepcion, J., took no part.Reyes, J.B.L., concurring:

I concur in the opinion of Mr. Justice Labrador, and would only add that the doctrine in the decision of 8 October 1915 of the Supreme Court of Spain, applied in the main opinion, is not a mere accident nor an isolated instance, but one of a series of decisions reaffirming the legal proposition therein laid down. x x x.

And in a later decision of 25 April 1951, the Supreme Court of Spain once more insisted on the rule that a successional agreement concerning property already owned by the grantor at the time the contract was perfected is not banned by Article 1271 of the Spanish Civil Code (corresponding to Article 1347 of the Civil Code of the Philippines): x x x.

It has been contended that the doctrine thus stated confuses future inheritance (herencia futura) with future property (bienes futuros). This is a misapprehension. In construing the term "future inheritance" as the contingent universality or complex of property rights and obligations that are passed to the heirs upon the death of the grantor, the rule advocated merely correlates the prohibition against contracts over "future inheritance" with the definition of "inheritance" given in Article 659 of the Spanish Civil Code, which is now Article 776 of the Civil Code of the Philippines.

"Art. 776. The inheritance includes all the property rights and obligations of a person which are not extinguished by his death."

The inheritance of a person may, and usually does, include not only property

that he already owns at a given time, but also his future property, that is to say, the property that he may subsequently acquire. But it may include only future property whenever he should dispose of the present property before he dies. And future inheritance may include only property he already owns at any given moment, if he should thereafter acquire no other property until his death. In any case, the inheritance or estate consists of the totality of assets and liabilities he holds at the time of his demise, and not what he possesses at any other time. If the questioned contract envisages all or a fraction of that contingent mass, then it is a contract over herencia futura, otherwise it is not. The statutory prohibition, in other words, is not so much concerned with the process of transfer as with the subject matter of the bargain. It is addressed to "future inheritance" not "future succession."

Of course, it can be said that every single item of property that a man should hold at any given instant of his life may become a part of his inheritance if he keeps it long enough. But is that mere possibility (or even probability) sufficient to stamp upon a contract over an individualized item of existing property the outlaw brand of "contract over future inheritance?" If it should ever be, then no agreement concerning present property can escape the legal ban. No donation inter vivos, no reversionary clause, no borrowing of money, and no alienation, not even a contract of sale (or other contract in praesenti for that matter), with or without deferred delivery, will avoid the reproach that it concerns or affects the grantor's "future inheritance." It is permissible to doubt whether the law ever contemplated the sweeping away of the entire contractual

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system so carefully regulated in the Code.

The restrictive interpretation given by the Spanish Supreme Court to the codal prohibition of agreements involving future inheritance is justified not only by the fact that the prohibition limits contractual freedom (and therefore, should not be given extensive interpretation), but also because there is no real or substantial difference between (1) an agreement whereby a person, for a valuable consideration, agrees to bequeath some of the property he already owns, and (2) a contract whereby he disposes of that property, subject to the condition that he will be entitled to its usufruct until the time he dies. The court has repeatedly sanctioned even donations inter vivos wherein the donor has reserved to himself the right to enjoy the donated property for the remainder of his days, and defers the actual transfer of possession to the time of his death. (Guzman v Ibea, 67 Phil 633; Balagui v Dongso, 53 Phil 673; Laureta v Mata, 44 Phil 668) Whatever objection is raised against the effects of the first kind of contracts can be made to apply to the second.

Mature reflection will show that where present (existing) property is the object of the bargain, all arguments brandished against conventions over future succession (post mortem) are just as applicable to other contracts de praesenti with deferred execution, the validity of which has never been questioned. Thus the loss of the power to bequeath the bargained property to persons of the grantor's choice, and the awakening of the grantee's desire for the early death of the grantor (the Roman votum mortis captandae) in order to obtain prompt control of the contracted goods, occur in both cases. In truth, the latter ground would bar even a contract of life insurance in favor of a stated beneficiary. It may also be noted that since the later part of the nineteenth century, the civilists have recognized that the progress in social relations has rendered such objections obsolete. (Puig Pena, Derecho Civil, Vol. V, Part I, 613 et seq.)

But where the contract involves the universality of the estate that will be left at a person's death (the herencia futura as understood by the Spanish Tribunal Supremo), there is another reason which I believe to be the true justification for the legal interdiction, and it is this: that if a man were to be allowed to bargain away all the property he expects to leave behind (i.e., his estate as a whole), he would practically remain without any incentive to practice thrift and frugality, or to conserve and invest his earnings and property. He would then be irresistibly drawn to be a wasteful spendthrift, a social parasite, without any regard for his future, because whatever he leaves will belong to another by virtue of his contract. The disastrous effects upon family and society if such agreements were to be held binding can be readily imagined. Hence, the interpretation given to Article 1271 (now Art. 1347) by the Supreme Court of Spain appears amply supported by practical reasons, and there is no ground to deny its application.

Much emphasis has been placed on the provisions of the contract Exhibit "A" that the widow, Maxima Santos de Blas, would execute a testament in favor of the appellees. To me, this is purely secondary, since it is merely the method selected by the parties for carrying out the widow's agreement to convey to the appellees the

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property in question without her losing its enjoyment during her natural life, and does not affect the substance or the validity of the transaction. To ensure the widow's possession of the property and the perception of its fruits while she was alive, the means logically selected was to return it by will, since such a conveyance could only be operative after death. There might be a doubt as to the validity of this arrangement if the widow's promise had been purely gratuitous, because then it could be argued that the promise involved a hybrid donation mortis causa yet irrevocable; but here the obligation to return is concededly irrevocable and supported by adequate consideration duly received in advance.

Since the agreement in the instant case did not refer to the future estate of the widow of Blas, but only to part of her present property at the time the contract was made; since the promise to retransfer one-half of her conjugal share was supported by adequate consideration as shown in the main decision; since the contract obviated protracted litigation and complicated accounting in settling the conjugal partnership of Blas and his first (deceased) wife; and since the testament that the widow promised to make was merely the mode chosen to perform the contract and carry out the promised devolution of the property, being thus of secondary importance, I can see no reason for declaring the entire arrangement violative of the legal interdiction of contracts over future inheritance, and disappoint the legitimate expectation held by the heirs of the first wife during all these years.

Barrera, J., concurring:

It seems to me clear that the document Exhibit "A", basis of the action of the plaintiffs-appellants, refers specifically to and affects solely the share of the grantor Maxima Santos in the conjugal properties as determined and specified in the will of her husband Simeon Blas, whose provisions, which she expressly acknowledged to have read and understood, constitute the raison d'etre of her promise to deliver or convey, by will, one-half of that specific share to the heirs and legatees named in her husband's will (who are his heirs by his first marriage). Nowhere in the document Exhibit "A" is there reference to her hereditary estate that she herself would leave behind at the time of her own demise which legally would be her "future inheritance." For this reason, I believe the contractual obligation assumed by Maxima Santos in virtue of Exhibit "A" does not come within the prohibition of Article 1271 of the Spanish Civil Code, now Article 1347 of the Civil Code of the Philippines.

I, therefore, concur in the opinions of Justices Labrador and Reyes.

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DIZON-RIVERA v DIZONNo. L-24561, 30 June 1970

33 SCRA 554

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. Of the two projects of partition submitted by the contending parties, that project which will give the greatest effect to the testamentary disposition should be adopted. Thus, where the testatrix enumerated the specific properties to be given to each compulsory heir and the testatrix repeatedly used the words "I bequeath" was interpreted to mean a partition of the estate by an act mortis causa, rather than as an attempt on her part to give such properties as devises to the designated beneficiaries. Accordingly, the specific properties assigned to each compulsory heir were deemed to be in full or partial payment of legitime, rather than a distribution in the nature of devises.

The tenor of the decision notwithstanding, it is important to note the provision of Article 886 which reads: "Legitime is that part of the testator's property which he cannot dispose of because the law has reserved it for certain heirs who are, therefore, called compulsory heirs." Article 886 is couched upon a negative prohibition "cannot dispose of". In the will under consideration, the testatrix disposed of practically her entire estate by designating a beneficiary for each property. Necessarily, the testamentary dispositions included that portion of the estate called "legitime." It is thus imperative to reconcile the tenor of Article 1080 (which is the basis of the following decision) with Article 886.

Teehankee, J.:

On January 28, 1961, the testatrix, Agripina J. Valdez, a widow, died in Angeles, Pampanga, and was survived by seven compulsory heirs, to wit, six legitimate children named Estela Dizon, Tomas V. Dizon, Bernardita Dizon, Marina Dizon (herein executrix-appellee), Angelina Dizon and Josefina Dizon, and a legitimate granddaughter named Lilia Dizon, who is the only legitimate child and heir of Ramon Dizon, a predeceased legitimate son of the said decedent. Six of these seven compulsory heirs (except Marina Dizon, the executrix-appellee) are the oppositors-appellants.

The deceased testatrix left a last will executed on February 2, 1960 and written in the Pampango dialect. Named beneficiaries in her will were the above-named compulsory heirs, together with seven other legitimate grandchildren, namely Pablo Rivera, Jr., Gilbert D. Garcia, Cayetano Dizon, Francisco Rivera, Agripina Ayson, Jolly Jimenez and Laureano Tiambon.

In her will, the testatrix divided, distributed and disposed of all her properties appraised at P1,801,960.00 (except two small parcels of land appraised at P5,849.60, household furniture valued at P2,500.00, a bank deposit in the sum of P409.95 and ten shares of Pampanga Sugar Development Company valued at P350.00) among

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her above-named heirs.Testate proceedings were in due course commenced and x x x the last will

and testament of the decedent was duly allowed and admitted to probate, and the appellee Marina Dizon-Rivera was appointed executrix of the testatrix's estate x x x.

x x x Dr. Adelaido Bernardo x x x was appointed commissioner to appraise the properties of the estate. He filed in due course his report of appraisal, and the same was approved in toto by the lower court x x x.

The real and personal properties of the testatrix at the time of her death thus had a total appraised value of P1,811,695.6, and the legitime of each of the seven compulsory heirs amounted to P129,362.11. (1/7 of the half of the estate reserved for the legitime of legitimate children and descendants.) In her will, the testatrix "commanded that her property be divided" in accordance with her testamentary disposition, whereby she devised and bequeathed specific real properties comprising practically the entire bulk of her estate among her six children and eight grandchildren. The appraised values of the real properties thus respectively devised by the testatrix to the beneficiaries named in her will, are as follows:

1. Estella Dizon 98,474.802. Angelina Dizon 106,307.063. Bernardita Dizon 51,968.174. Josefina Dizon 52,056.395. Tomas Dizon 131,987.416. Lilia Dizon 72,182.477. Marina Dizon 1,148,063.718. Pablo Rivera, Jr. 69,280.009. Grandchildren Gilbert Garcia, et al. 72,540.00

P1,801,960.01

The executrix filed her project of partition dated February 5, 1964, in substance adjudicating the estate as follows:

(1) with the figure of P129,254.96 as legitime for a basis Marina (executrix-appellee) and Tomas (appellant) are admittedly considered to have received in the will more than their respective legitime, while the rest of the appellants, namely, Estela, Bernardita, Angela and Lilia received less than their respective legitime;

(2) thus, to each of the latter are adjudicated the properties respectively given them in the will, plus cash and/or properties, to complete their respective legitimes to P129,254.96;

(3) on the other hand, Marina and Tomas are adjudicated the properties that they received in the will, less the cash and/or properties necessary to complete the prejudiced legitime mentioned in number 2 above;

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(4) the adjudications made in the will in favor of the grandchildren remained untouched.

On the other hand, oppositors submitted their own counter-project of partition dated February 14, 1964, wherein they proposed the distribution of the estate on the following basis:

(a) all the testamentary dispositions were proportionally reduced to the value of one/half (1/2) of the entire estate, the value of the said one-half (1/2) amounting to P905,534.78; (b) the shares of the Oppositors-Appelants should consist of their legitime, plus the devises in their favor proportionally reduced; (c) in payment of the total shares of the appellants in the entire estate, the properties devised to them plus other properties left by the Testatrix and/or cash are adjudicated to them; and (d) to the grandchildren who are not compulsory heirs are adjudicated the properties respectively devised to them subject to reimbursement by Gilbert D. Garcia et al., of the sums by which the devise in their favor should be proportionally reduced.

Under the oppositors' counter-project of partition, the testamentary dispositions made by the testatrix of practically her whole estate of P1,801,960.01, as above stated, were proposed to be reduced to the amounts set forth after the names of the respective heirs and devisees totaling one-half thereof as follows:

1. Estela Dizon 49,485.562. Angelina Dizon 53,421.423. Bernardita Dizon 26,115.044. Josefina Dizon 26,159.385. Tomas V. Dizon 65,874.046. Lilia Dizon 36,273.137. Marina Dizon 576,938.828. Pablo Rivera, Jr. 34,814.509. Grandchildren Gilbert Garcia et al 36,452.78

P905,534.78

while the other half of the estate (P905,534.78) would be deemed as constituting the legitime of the executrix-appellee and oppositors-appelants, to be divided among them in seven equal parts of P129,362.11 as their respective legitimes.

The lower court, after hearing, sustained and approved the executrix's project of partition, ruling that Articles 906 and 907 of the New Civil Code specifically provide that when the legitime is impaired or prejudiced, the same shall be completed and satisfied. While it is true that this process has been followed and adhered to in the two projects of partition, it is observed that the executrix and the oppositors differ in respect to the source from which the portion or portions shall be taken in order to fully restore the impaired legitime. The proposition of the oppositors, if upheld, will substantially result in a distribution of intestacy, which is in controversion of Article 791

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of the New Civil Code" adding that "the testatrix has chosen to favor certain heirs in her will for reasons of her own, cannot be doubted. This is legally permissible within the limitation of the law, as aforecited." With reference to the payment in cash of some P230,552.38, principally by the executrix as the largest beneficiary of the will to be paid to her five co-heirs, the oppositors (excluding Tomas Dizon), to complete their impaired legitimes, the lower court ruled "(T)he payment in cash so as to make the proper adjustment to meet with the requirements of the law in respect to legitimes which have been impaired is, in our opinion, a practical and valid solution in order to give effect to the last wishes of the testatrix."

From the lower court's order of approval, oppositors-appellants have filed this appeal, and raised anew the following issues:

1. whether or not the testamentary dispositions made in the testatrix's will are in the nature of devises imputable to the free portion of her estate, and therefore, subject to reduction;

2. whether the appellants are entitled to the devise plus their legitime under Article 1063, or merely to demand completion of their legitime under Article 906 of the Civil Code; and

3. whether the appellants may be compelled to accept payment in cash on account of their legitime, instead of some of the real properties left by the Testatrix;

which were adversely decided against them in the proceedings below.

The issues raised present a matter of determining the avowed intention of the testatrix which is "the life and soul of a will." In consonance therewith, our Civil Code included the new provisions found in Articles 788 and 791 thereof that "(I)f a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the disposition is to be operative shall be preferred" and "(T)he 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." In Villanueva v Juico for violation of these rules of interpretation as well as of Rule 124, section 59 of the old Rules of Court, the Court, speaking through Mr. Justice J.B.L. Reyes, overturned the lower court's decision and stressed that "the intentions and wishes of the testator, when clearly expressed in his will, constitute the fixed law of interpretation, and all questions raised at the trial, relative to its execution and fulfillment, must be settled in accordance therewith, following the plain and literal meaning of the testator's words, unless it clearly appears that his intention was otherwise."

The testator's wishes and intention constitute the first and principal law in the matter of testaments, and to paraphrase an early decision of the Supreme Court of Spain, when expressed clearly and precisely in his last will, amount to the only law

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whose mandate must imperatively be faithfully obeyed and complied with by his executors, heirs and devisees and legatees, and neither these interested parties nor the courts may substitute their own criterion for the testator's will. Guided and restricted by these fundamental premises, the Court finds for the appellee.

1. Decisive of the issues at bar is the fact that the testatrix's testamentary disposition was in the nature of a partition of her estate by will. Thus, in the third paragraph of her will, after commanding that upon her death all her obligations as well as the expenses of her last illness and funeral and the expenses for the probate of her last will and for the administration of her property in accordance with law, be paid, she expressly provided that "it is my wish and I command that my property be divided" in accordance with the dispositions immediately thereafter following, whereby she specified each real property in her estate and designated the particular heir among her seven compulsory heirs and seven other grandchildren to whom she bequeathed the same. This was a valid partition of her estate, as contemplated and authorized in the first paragraph of Article 1080 of the Civil Code, providing that "(S)hould a person make a partition of his estate by an act inter vivos or by will, such partition shall be respected, insofar as it does not prejudice the legitime of the compulsory heirs." This right of a testator to partition his estate is subject only to the right of compulsory heirs to their legitime. The Civil Code thus provides the safeguard for the right of such compulsory heirs:

Art. 906. Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him may demand that the same be fully satisfied.

Art. 907. Testamentary dispositions that impair or diminish the legitime of the compulsory heirs shall be reduced on petition of the same, insofar as they may be inofficious or excessive.

This was properly complied with in the executrix-appellee's project of partition, wherein the five oppositors-appellants namely, Estela, Bernardita, Angelina, Josefina and Lilia, were adjudicated the properties respectively distributed and assigned to them by the testatrix in her will, and the differential to complete their respective legitimes of P129,362.11 each were taken from the cash and/or properties of the executrix-appellee, Marina, and their co-oppositors-appellant, Tomas, who admittedly were favored by the testatrix and received in the partition by will more than their respective legitimes.

2. This right of a testator to partition his estate by will was recognized even in Article 1056 of the old Civil Code which has been reproduced now as Article 1080 of the present Civil Code. The only amendment in the provision was that Article 1080 "now permits any person (not a testator, as under the old law) to partition his estate by act inter vivos. This was intended to repeal the then prevailing doctrine that for a testator to partition his estate by an act inter vivos he must first make a will with all the formalities provided by law. Authoritative commentators doubt the efficacy of the amendment but the question does not here concern us, for this is a clear case of partition by will, duly admitted to probate, which perforce must be given full validity and

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effect. Aside from the provisions of Articles 906 and 907 above quoted, other codal provisions support the executrix-appellee's project of partition as approved by the lower court rather than the counter-project of partition proposed by oppositors-appellants whereby they would reduce the testamentary disposition or partition made by the testatrix to one-half and limit the same, which they would consider as mere devises and legacies, to one-half of the estate as the disposable free portion, and apply the other half of the estate to payment of the legitimes of the seven compulsory heirs. Oppositors' proposal would amount substantially to a distribution by intestacy and pro tanto nullify the testatrix's will, contrary to Article 791 of the Civil Code. It would further run counter to the provisions of Article 1091 of the Civil Code that "(A) partition legally made confers upon each heir the exclusive ownership of the property adjudicated to him."

3. In Habana v Imbo, the court upheld the distribution made in the will of the deceased testator Pedro Teves of two large coconut plantations in favor of his daughter, Concepcion, as against adverse claims of other compulsory heirs, as being a partition by will, which should be respected insofar as it does not prejudice the legitime of the compulsory heirs, in accordance with Article 1080 of the Civil Code. In upholding the sale made by Concepcion to a stranger of the plantations thus partitioned in her favor in the deceased's will which was being questioned by the other compulsory heirs, the Court ruled that "Concepcion Teves by operation of law, became the absolute owner of said lots because 'a partition legally made confers upon each heir the exclusive ownership of the property adjudicated to him", from the death of her ancestors, subject to rights and obligations of the latter, and, she cannot be deprived of her rights thereto except by the methods provided for by law. Concepcion Teves could, as she did, sell the lots in question as part of her share of the proposed partition of the properties, especially when, as in the present case, the sale has been expressly recognized by herself and her co-heirs x x x."

4. The burden of oppositors' contention is that the testamentary dispositions in their favor are in the nature of devises of real property, citing the testatrix's repeated use of the words "I bequeath" in her assignment or distribution of her real properties to the respective heirs. From this erroneous premise, they proceed to the equally erroneous conclusion that "the legitime of the compulsory heirs passes to them by operation of law and that the testator can only dispose of the free portion, that is, the remainder of the estate after deducting the legitime of the compulsory heirs x x x and all testamentary dispositions, either in the nature of institution of heirs or of devises or legacies, have to be taken from the remainder of the testator's estate constituting the free portion."

Oppositors err in their premises, for the adjudication and assignments in the testatrix's will of specific properties to specific heirs cannot be considered all devises, for it clearly appears from the whole context of the will and the dispositions by the testatrix of her whole estate (save for some small properties of little value already noted at the beginning of this opinion) that her clear intention was to partition her whole estate through her will. The repeated use of the words "I bequeath" in her testamentary dispositions acquired no legal significance such as to convert the same

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into devises to be taken solely from the free one-half disposable portion of the estate. Furthermore, the testatrix's intent that her testamentary dispositions were by way of adjudications to the beneficiaries as heirs and not as mere devisees, and that said dispositions were therefore on account of the respective legitimes of the compulsory heirs is expressly borne out in the fourth paragraph of her will, immediately following her testamentary adjudications in the third paragraph in this wise: "FOURTH: I likewise command that in case any of those I named as my heirs in this testament any of them shall die before I do, his forced heirs under the law enforced at the time of my death shall inherit the properties I bequeath to said deceased."

Oppositors conclusions necessarily are in error. The testamentary dispositions of the testatrix, being dispositions in favor of compulsory heirs, do not have to be taken only from the free portion of the estate, as contended, for the second paragraph of Article 842 of the Civil Code precisely provides that "(O)ne 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." And even going by oppositors' own theory of bequests, the second paragraph of Article 912 of the Civil Code covers precisely the case of the executrix-appellee, who admittedly was favored by the testatrix with the large bulk of her estate in providing that "(T)he devisee who is entitled to a legitime may retain the entire property, provided its value does not exceed that of the disposable portion and of the share pertaining to him as legitime." For "diversity of apportionment is the usual reason for making a testament; otherwise, the decedent might as well die intestate." Fundamentally, of course, the dispositions by the testatrix constituted a partition by will, which by mandate of Article 1080 of the Civil Code and of the other cited codal provisions upholding the primacy of the testator's last will and testament, have to be respected insofar as they do not prejudice the legitime of the other compulsory heirs.

Oppositors' invoking of Article 1063 of the Civil Code that "(P)roperty left by will is not deemed subject to collation, if the testator has not otherwise provided, by the legitime shall in any case remain unimpaired" and invoking of the construction thereof given by some authorities that "not deemed subject to collation in this article really means not imputable to or chargeable against the legitime," while it may have some plausibility in an appropriate case, has no application in the present case. Here, we have a case of distribution and partition of the entire estate by the testatrix, without her having made any previous donations during her lifetime which would require collation to determine the legitime of each heir nor having left merely some properties by will which would call for the application of Article 1061 to 1063 of the Civil Code on collation. The amount of the legitime of the heirs is here determined and undisputed.

5. With this resolution of the decisive issue raised by oppositors-appelants, the secondary issues are likewise necessarily resolved. Their right was merely to demand completion of their legitime under Article 906 of the Civil Code and this has been complied with in the approved project of partition, and they can no longer demand a further share from the remaining portion of the estate, as bequeathed and partitioned by the testatrix principally to the executrix-appellee.

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Neither may the appellants legally insist on their legitime being completed with real properties of the estate instead of being paid in cash, per the approved project of partition. The properties are not available for the purpose, as the testatrix had specifically partitioned and distributed them to her heirs, and the heirs are called upon, as far as feasible, to comply with and give effect to the intention of the testatrix as solemnized in her will, by implementing her manifest wish of transmitting the real properties intact to her named beneficiaries, principally the executrix-appellee. The appraisal report of the properties of the estate as filed by the commissioner appointed by the lower court was approved in toto upon joint petition of the parties, and hence, there cannot be said to be any question - and none is presented - as to fairness of the valuation thereof or that the legitime of the heirs in terms of cash has been understated. The plaint of oppositors that the purchasing value of the Philippine peso has greatly declined since the testatrix death in January 1961 provides no legal basis or justification for overturning the wishes and intent of the testatrix. The transmission of rights to the succession are transmitted from the moment of death of the decedent and accordingly, the value thereof must be reckoned as of then, as otherwise, estates would never be settled if there were to be a revaluation with every subsequent fluctuation in the values of the currency and properties of the estate. There is evidence in the record that prior to November 25, 1964 one of the oppositors, Bernardita, accepted the sum of P50,000.00 on account of her inheritance, which, per the parties' manifestation, "does not in any way affect the adjudication made to her in the projects of partition of either party, as the same is a mere advance of the cash that she would receive in both projects of partition." The payment in cash by way of making the proper adjustments in order to meet the requirements of the law on non-impairment of legitimes as well as to give effect to the last will of the testatrix has invariably been availed of and sanctioned. That her co-oppositors would receive their cash differentials only now when the value of the currency has declined further, whereas they could have received them earlier, like Bernardita, at the time of approval of the project of partition and when the peso's purchasing value was higher, is due to their own decision of pursuing the present appeal.

ACCORDINGLY, the orders appealed from are hereby affirmed. Without costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Fernando, Barredo and Villamor, JJ., concur.

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VDA. DE VILLAFLOR v JUICONo. L-15737, 28 February 1962

4 SCRA 550

The following decision illustrates the application of the rule that the language of a will must be interpreted in such a way that every expression therein must be given some effect. Therefore, an interpretation which suppresses a provision cannot be adopted if there is another way of construing the said dispositions.

Reyes, J.B.L., J.:

The following facts appear of record: On October 9, 1908 Don Nicolas Villaflor, a wealthy man of Castillejos, Zambales, executed a will in Spanish in his own handwriting, devising and bequeathing in favor of his wife, Doña Fausta Nepomuceno, one-half of all his real and personal properties, giving the other half to his brother Don Fausto Villaflor.

Clause 6th, containing the institution of heirs, reads as follows:

SEXTO: En virtud de las facultades que me conceden las leyes, instituyo per mis unicos y universales herederos de todos mis derechos y acciones a mis hermano D. Fausto Villaflor y a mi esposa Da. Fausta Nepomuceno para que partan todos mis bienes que me pertenescan, en iguales partes, para despues de mi muerte, exceptuando las donaciones y legados que, abajo mi mas expontanea voluntad, lo hago en la forma siguiente:

SEPTIMO: Lego para despues de mi muerte a mi esposa Da. Fausta Nepomuceno en prueba de mi amor y carino, los bienes, alajas y muebles que a continuacion se expresan;

OCTAVO: Que estos legades disfrutaria mi referida esposa Da. Fausta Nepomuceno su uso y posesion mientras viva y no se case en segundas nupcias, de la contrario, pasara a ser propiedad estos dischos legados de mi sobrina nieta Leonor Villaflor.

The 12th clause of the will provided, however, that Clauses 6th and 7th thereof would be deemed annulled from the moment he bore any child with Doña Fausta Nepomuceno. Said Clause 12th reads as follows:

DUODECIMO: Quedan anulados las parrafos 6.0 y 7.0 de este testamento que tratan de institucion de herederos y los legados que se haran despues de mi muerta a favor de mi esposa, en el momento que podre tener la dicha de contrar con hijo y hijos legitimos o legitimados, pues estos, conforme a ley seran mis herederos.

Don Nicolas Villaflor died on March 3, 1922, without begetting any child with his wife Doña Fausta Nepomuceno. The latter, already a widow, thereupon instituted Special Proceedings No. 203 of the Court of First Instance of Zambales, for the settlement of her husband's estate and in that proceeding, she was appointed judicial

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administratrix. In due course of administration, she submitted a project of partition, now Exhibit "E". In the order of November 24, 1924, now Exhibit "C", the probate court approved the project of partition and declared the proceedings closed. As the project of partition, Exhibit "E" now shows Doña Fausta Nepomuceno received by virtue thereof the ownership and possession of a considerable amount of real and personal properties mentioned and referred to in Clause 7th of the will. The order approving the project of partition (Exhibit "C"), however, expressly provided that approval thereof was "sin perjuicio de los dispuesto en al clausula 8.0 del testamento de Nicolas Villaflor."

On May 1, 1956, Doña Fausta Nepomuceno died without having contracted a second marriage, and without having begotten any child with the deceased Nicolas Villaflor. Her estate is now being settled in Special Proceeding No. Q-1563 in the lower court, with the defendant Delfin N. Juico as the duly appointed and qualified judicial administrator.

The plaintiff Leonor Villaflor vda. de Villanueva is admitted to be the same Leonor Villaflor mentioned by Don Nicolas Villaflor in his will as his "sobrina nieta Leonor Villaflor."

Plaintiff Leonor Villaflor instituted the present action against the administrator of the estate of the widow Fausta Nepomuceno, on February 8, 1958, contending that upon the widow's death, said plaintiff became vested with the ownership of the real and personal properties bequeathed by the late Nicolas Villaflor in clause 7 of his will, pursuant to its eighth (8th) clause. Defendant's position, adopted by the trial court, is that the title to the properties aforesaid become absolutely vested in the widow upon her death, on account of the fact that she never remarried.

We agree with appellant that the plain desire and intent of the testator, as manifested in clause 8 of his testament, was to invest his widow with only a usufruct or life tenure in the properties described in the seventh clause, subject to the further condition (admitted by the appellee) that if the widow remarried, her rights would thereupon cease, even during her own lifetime. That the widow was meant to have no more than a life interest in those properties, even if she did not remarry at all, is evident from the expressions used by the deceased "uso y posesion mientras viva" (use and possession while alive) in which the first half of the phrase ("uso y possession" instead of "dominio" or "propiedad") reinforces the second ("mientras viva"). The testator plainly did not give his widow the full ownership of these particular properties, but only the right to their possession and use (or enjoyment) during her lifetime. This is in contrast with the remainder of the estate in which she was instituted universal heir together with the testator's bother (clause 6).

SEXTO: En virtud de las facultades que me conceden las leyes, instituyo por mis unicos y universales herederos de todos mis derechos y acciones a mis hermano D. Fausto Villaflor y a mi esposa Da. Fausta Nepomuceno para que parten todos mis bienes que me pertenescan, en iguales partes, para despues de mi muerte, exceptuando las donaciones y legados que, abajo mi mas expontanea voluntad, lo hago en la forma

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siguiente.

The court below, in holding that the appellant Leonor Villaflor, as reversionary legatee, could succeed to the properties bequeathed by clause 7 of the testament only in the event that the widow remarried, has unwarrantedly discarded the expression "mientras viva", and considered the words "uso y possession" as equivalent to "dominio" (ownership). In so doing, the trial court violated Article 791 of the Civil Code of the Philippines, as well as section 59 of Rule 123 of the Rules of Court.

ART. 791. 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 one is to be preferred which will prevent intestacy.

SEC. 59 Instruments construed so as to give effect to all provisions. In the construction of an instrument where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.

Speculation as to the motives of the testator in imposing the conditions contained in clause 7 of his testament should not be allowed to obscure the clear and unambiguous meaning of his plain words, which are over the primary source in ascertaining his intent. It is well to note that if the testator had intended to impose as sole condition the non-remarriage of his widow, the words "uso y posesion mientras viva" would have been unnecessary, since the widow could only remarry during her own lifetime.

The Civil Code, in Article 790, p. 1 (Article 675 of the Civil Code of 1889), expressly enjoins the following:

ART 790. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be gathered, and that other can be ascertained.

Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that the will was drawn solely by the testator, and that he was unacquainted with such technical sense.

In consonance with this rule, this Supreme Court has laid the doctrine in In re Estate of Calderon, 26 Phil 233, that the intention and wishes of the testator, when clearly expressed in his will, constitute the fixed law of interpretation, and all questions raised at the trial, relative to its execution and fulfillment, must be settled in accordance therewith, following the plain and literal meaning of the testator's words, unless it clearly appears that his intention was otherwise. The same rule is adopted by the Supreme Court of Spain (TS Sent. 20 Marzo 1918; 28 Mayo 1912; 30 Abril 1913; 16 Enero 1915; 23 Octubre 1925).

La voluntad del testador, clara, precisa y constantemente expresada

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al ordenar su ultimo voluntad, es ley unica, imperativa y obligatoria que han de obedecer y cumplir fieldemente albaceas, legatarios y heredera, hoy sus sucesores, sin que esa voluntad patente, que no has manester de interpretaciones, pues no ofrece la menor duda, pueda sustituirse pues no ofrece la menor duda, pueda sustituirse por ningun otro criterio de alguna de los interesados, ni tampoco por el judicial. (Tribunal Supremo de Espana, Sentencia 20 Marzo 1918).

The American decisions invoked by appellee in his brief are inapplicable, because they involve cases where the only condition imposed on the legatee was that she should remain a widow. As already shown, the testament of Don Nicolas Villaflor clearly and unmistakably provided that this widow should have the possession and use of the legacies while alive and did not remarry. It necessarily follows that by the express provisions of the 8th clause of his will, the legacies should pass to the testator's "sobrina nieta", appellant herein, upon the widow's death, even if the widow never remarried in her lifetime. Consequently, the widow had not right to retain or dispose of the aforesaid properties, and her estate is accountable to the reversionary legatee for their return, unless they had been lost due to fortuitous event, or for their value should rights of innocent third parties have intervened.

PREMISES CONSIDERED, the decision appealed from is reversed, and the appellant Leonor Villaflor vda. de Villanueva is declared entitled to the ownership and fruits of the properties described in clause 7 of the will or testament, from the date of the death of Doña Fausta Nepomuceno. The records are ordered remanded to the court of origin for liquidation, accounting and further proceedings conformably to this decision. Costs against the Administrator-appellee.

Bengzon, C.J., Padilla, Bautista Angelo, Concepcion, Barrera, Paredes, Dizon and de Leon, JJ., concur. Labrador, J., did not take part.

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BELLIS v BELLISNo. L-23678, 6 June 1967

20 SCRA 358

The formal validity of a will depends upon the observance of the law in force at the time of execution. On the other hand, the substantive validity of the dispositions therein is governed by the laws in force at the time of the death of the testator.

Bengzon, J.P., J.:

Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the Unites States." By his first wife, Mary E. Mallen, whom he divorced, he had five legitimate children: Edward A. Bellis, George Bellis (who predeceased him in infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman; by his second wife, Violet Kennedy, who survived him, he had three legitimate children: Edwin G. Bellis, Walter S. Bellis and Dorothy Bellis; and finally he had three illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis.

On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that after all taxes, obligations and expenses of administration are paid for, his distributable estate should be divided, in trust, in the following order and manner: (a) $240,000.00 to his first wife, Mary E. Mallen; (b) P120,000.00 to his three illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis, or P40,000.00 each, and (c) after the foregoing two items have been satisfied, the remainder shall go to his seven surviving children by his first and second wives, namely: Edward A. Bellis, Henry A. Bellis, Alexander Bellis, and Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis and Dorothy E. Bellis, in equal shares.

On July 8, 1958, Amos G. Bellis died a resident of San Antonio, Texas. His will was admitted to probate in the Court of First Instance of Manila x x x.

The People's Bank & Trust Company, as executor of the will, paid all the bequests therein x x x.

On January 8, 1964, preparatory to closing its administration, the executor submitted and filed its "Executor's Final Account, Report of Administration and Project of Partition" wherein it reported, inter alia, the satisfaction of the legacy to Mary E. Mallen by the delivery to her of shares of stock amounting to $240,000.00, and the legacies of Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis in the amount of P40,000.00 each or a total of P120,000.00. In the project of partition, the executor - pursuant to the "Twelfth" clause of the testator's Last Will and Testament -divided the residuary estate into seven equal portions for the benefit of the testator's seven legitimate children by his first and second marriages.

On January 7, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective oppositions to the project of partition on the ground that they were deprived of their legitime as illegitimate children and, therefore, compulsory heirs of the

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deceased.

Amos Bellis, Jr. interposed no opposition despite notice to him, proof of service of which is evidenced by the registry receipt submitted on April 27, 1964 by the executor.

After the parties filed their respective memoranda and other pertinent pleadings, the lower court, on April 30, 1964, issued an order overruling the oppositions and approving the executor's final account, report and administration and project of partition. Relying upon Article 16 of the Civil Code, it applied the national law of the decedent, which in this case is Texas law, which did not provide for legitime.

Their respective motions for reconsideration having been denied by the lower court on June 11, 1964, oppositors-appellants appealed to this Court to raise the issue of which law must apply - Texas Law or Philippine law.

In this regard, the parties do not submit the case on, nor even discuss, the doctrine of renvoi, applied by this Court in Aznar v Christensen Garcia, L-16749, January 31, 1963. Said doctrine is usually pertinent where the decedent is a national of one country, and a domicile of another. In the present case, it is not disputed that the decedent was both a national of Texas and a domicile thereof at the time of his death. So that even assuming Texas has a conflict of law rule providing that the domiciliary system (law of domicile) should govern, the same would not result in a reference back (renvoi) to Philippine law, but would still refer to Texas law. Nonetheless, if Texas has a conflicts rule adopting the situs theory (lex rei sitae) calling for the application of the law of the place where the properties are situated, revoi would arise, since the properties here involved are found in the Philippines. In the absence, however, of proofs as to the conflict of law rule of Texas, it should not be presumed different from ours. Appellants' position is therefore not rested on the doctrine of renvoi. As stated, they never invoked nor even mentioned it in their arguments. Rather, they argue that their case falls under the circumstances mentioned in the third paragraph of Article 17 in relation to Article 16 of the Civil Code.

Article 16, par.2 and Article 1039 of the Civil Code, render applicable the national law of the decedent, in intestate or testamentary successions, with regard to four items: (a) the order of succession; (b) the amount of successional rights; (c) the intrinsic validity of the provisions of the will; and (d) the capacity to succeed. They provide that:

ART. 16. Real property as well as personal property is subject to the law of the country where it is situated. However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found.

ART. 1039. Capacity to succeed is governed by the law of the nation of the

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decedent.

Appellants would however counter that Art. 17, paragraph 3 of the Civil Code, stating that -

Prohibitive laws concerning persons, their acts or property, and those which have for their object, public order, public policy and good customs, shall not be rendered ineffective by laws or judgments, or by determinations or conventions agreed upon in a foreign country.

prevails as the exception to Article 16, par. 2 of the Civil Code afore-quoted. This is not correct. Precisely, Congress deleted the phrase "notwithstanding the provisions of this and the next preceding article" when they incorporated Article 11 of the old Civil Code as Article 17 of the new Civil Code, while reproducing without substantial change the second paragraph of Article 10 of the old Civil Code as Article 16 of the new. It must have been their purpose to make the second paragraph of Article 16 a specific provision in itself which must be applied in testate and intestate succession. As further indication of this legislative intent, Congress added a new provision, under Article 1039, which decrees that capacity to succeed is to be governed by the national law of the decedent.

It is therefore evident that whatever public policy or good customs may be involved in our system of legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For it has specifically chosen to leave, inter alia, the amount of successional rights, to the decedent's national law. Specific provisions must prevail over general ones.

Appellants would also point out that the decedent executed two wills - one to govern his Texas estate and the other his Philippine estate - arguing from this that the intended Philippine law to govern his Philippine estate. Assuming that such was the decedent's intention in executing a separate Philippine will, it would not alter the law, for as this Court ruled in Miciano v Brimo, 50 Phil 867, 870, a provision in a foreigner's will to the effect that his properties shall be distributed in accordance with Philippine law and not with his national law, is illegal and void, for his national law cannot be ignored in regard to those matters that Article 10 - now Article 16 - of the Civil Code states said national law should govern.

The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and that under the laws of Texas, there are no forced heirs or legitime. Accordingly, since the intrinsic validity of the provision of the will and the amount of successional rights are to be determined under Texas law, the Philippine law on legitime cannot be applied to the testacy of Amos G. Bellis.

Wherefore, the order of the probate court is hereby affirmed in toto, with costs against appellants. So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ., concur.

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DE GUZMAN v INTESTATE ESTATE OF FRANCISCO BENITEZG.R. Nos. 61167-68, 20 January 1989

169 SCRA 284

De Guzman does not definitively settle the issue of testamentary capacity insofar as it involves soundness of mind. However, the medical record of the testator should be noted as it influenced to a great extent the factual findings of the probate court and the affirmance of such findings by the Court of Appeals.

Griño-Aquino, J.:

On December 10, 1970, Dionisia Valenzuela and her brother Melquiades Valenzuela, first cousins of the deceased Francisco Benitez, filed in the Court of First Instance of Laguna, Branch IV, x x x a petition for administration of his intestate estate and for the issuance of letters of administration to Dionisia who, during the lifetime of the deceased, had been administering the said estate as judicial guardian of his person and property duly x x x.

Francisco Benitez was the only surviving child of the spouses Tiu Cuaco, alias Pascual Benitez, and Camila Valenzuela whose brother was the father of private respondents, Dionisia Valenzuela and Melquiades Valenzuela. He died single at the age of 61 years on November 6, 1970, without descendants, nor ascendants nor brothers and sisters. x x x.

The petition for administration was opposed by Emiterio de Guzman on the ground that the deceased left a will bequeathing his entire estate to him (de Guzman) and that a petition for its probate was docketed as Spl. Proc. No. 352 in Branch II of the same court. The two cases were later consolidated and jointly heard in branch IV of the court.

Emiterio de Guzman died on April 20, 1973 and was substituted by his heirs, Fidel, Cresencia and Rosalia, all surnamed de Guzman, in both proceedings.

In support of the petition for probate (SC-352), the petitioner Fidel de Guzman and two attesting witnesses of the will, Pelagio Lacena and Judge Damaso Tengco who prepared the will, gave evidence.

The oppositors (petitioners for administration in SC-347) presented six (6) witnesses, namely, Marcial Mendoza, Pedro Cabela, Porfirio Reyes, Dionisia Valenzuela, Honoria Recalde Leonardo and Prudencio Leonardo, who identified the transcript of the testimony given on January 22, 1957 by Dr. Jose A. Fernandez (since deceased) in the proceedings (SC-29) for the guardianship of Francisco Benitez for incompetence on account of insanity. Various documentary exhibits were presented by both sides.

On April 4, 1975, Judge Maximo Maceren rendered judgment disallowing the will and appointing Dionisia Valenzuela administratrix of the intestate estate of the

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deceased. The pertinent findings of the trial court are quoted hereunder:The pivotal issue hinges on the mental capacity of the supposed

testator, Francisco Benitez on August 18, 1945 when he allegedly executed his last will and testament. Did Francisco Benitez possess a sound and disposing mind on August 18, 1957?

x x x

The evidence (Exhibit I and Exhibit H) shows that from January 18, 1929 up to March 12, 1941 Francisco Benitez was confined at the National Mental Hospital for varying periods of time as follows:

Date of Admission Date of Discharge(a) January 18, 1929 March 12, 1929(b) March 7, 1931 June 6, 1931(c) November 12, 1936 November 29, 1937(d) February 16, 1939 August 16, 1939(e) July 9, 1940 March 12, 1941

The foregoing premises leads this Court to the conclusion that [at] the time Francisco Benitez executed his supposed will on August 18, 1945 he was not possessed of a sound and disposing mind. Wherefore the same is not allowed probate.

On appeal to the Court of Appeals, the decision was affirmed x x x.

The petitioner de Guzman assail the decision of the Court of Appeals on the ground that:

The finding that the deceased Francisco Benitez "was not possessed of a sound and disposing mind" when he executed his will on August 18, 1945, is grounded merely on speculation, surmises and conjectures, as well as on hearsay and contradictory, biased, and obviously incredible testimony.

Plainly, the petition raises a purely factual issue, which We are not at liberty to review because in an appeal by certiorari under Rule 45 of the Rules of court, only questions of law which must be distinctly set forth, may be raised. In any event, the decision of the Court of Appeals reveals that Court carefully weighed the evidence on the question of the testamentary capacity, or lack of it, of the deceased Francisco Benitez and found "no compelling reason to disturb the lower court's findings and conclusions." The resolution of that question hinges on the credibility of the witnesses. The cardinal rule on that point is that the trial court's assessment of the credibility of witnesses while testifying is generally binding on the appellate court because of its superior advantage in observing their conduct and demeanor and its findings, when supported by convincing credible evidence, shall not be disturbed on appeal. (People v Dava, 149 SCRA 582)

WHEREFORE, the petition for review is denied for lack of merit. Costs against the petitioners Fidel, Cresencia and Rosalia de Guzman.

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Narvasa, Cruz, Gancayco and Medialdea, JJ., concur.

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LEE v TAMBAGOA.C. No. 5281, 12 February 2008

544 SCRA 393

Lee explains the reason for the stringent formalities prescribed by law in the making of a notarial will. It is disturbing that in this decision, the court ruled that the non-notation of the residence certificates of the notarial witnesses and/or the use of the testator’s expired residence certificate are sufficient to invalidate a will.

Corona, J.:

In a letter-complaint dated April 10, 2000, complainant Manuel L. Lee charged respondent Atty. Regino B. Tanbago with violation of the Notarial Law and the ethics of the legal profession for notarizing a spurious last will and testament.

In his complaint, complainant averred that his father x x x never executed the contested will. Furthermore, the spurious will contained the forged signatures of Cayetano Noynay and Loreto Grajo, the purported witnesses to its execution.

In the said will, the decedent supposedly bequeathed his entire estate to his wife Lim Hock Lee, save for a parcel of land which he devised to Vicente Lee, Jr. and Elena Lee, half siblings of complainant.

The will was purportedly executed and acknowledged before respondent on June 30, 1965. Complainant, however, pointed out that the residence certificate of the testator noted in the acknowledgment of the will was dated January 5, 1962. Furthermore, the signature of the testator was not the same as his signature as donor in a deed of donation (containing his purported genuine signature). Complainant averred that the signatures of his deceased father in the will and in the deed of donation were “in any way (sic) entirely and diametrically opposed from (sic) one another in all angle[s].”

Complainant also questioned the absence of notation of the residence certificates of the purported witnesses x x x. He alleged that their signatures had likewise been forged and merely copied from their respective voters’ affidavits.

Complainant further asserted that no copy of such purported will was on file in the archives division of the Records Management and Archives office of the National Commission for Culture and the Arts (NCCA). In this connection, the certification of the chief of the archives division dated September 19, 1999 stated x x x.

Respondent in his comment x x x claimed that the complaint against him contained false allegations: (1) that complainant was a son of the decedent Vicente Lee Sr. and (2) that the will in question was fake and spurious. He alleged that complainant was “not a legitimate son of Vicente Lee Sr. and that the last will and testament was validly executed and actually notarized by respondent per affidavit of Gloria Nebato, common-law wife of Vicente Lee Sr. and corroborated by the joint

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affidavit of the children of Vicente Lee Sr., namely Elena N. Lee and Vicente N. Lee. x x x

In his report, the investigating commissioner found respondent guilty of violation of pertinent provisions of the old Notarial Law as found in the Revised Administrative Code. The violation constituted an infringement of legal ethics x x x. Thus, x x x recommended the suspension of respondent for a period of three months.

x x x

We affirm with modification.

A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree, the disposition of his estate, to take effect after his death. A will may be either notarial or holographic.

The law provides for certain formalities that must be followed in the execution of wills. The object of solemnities surrounding the execution of wills is to close the door on bad faith and fraud, to avoid substitution of wills and testaments, and to guarantee their truth and authenticity.

A notarial will, as the contested will in this case, is required by law to be subscribed at the end thereof by the testator himself. In addition, it should be attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.

The will in question was attested by only two witnesses, Noynay and Grajo. On this circumstance alone, the will must be considered void. This is consonance with the rule that acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes their validity.

The Civil Code likewise requires that a will must be acknowledged before a notary public by the testator and the witnesses. The importance of this requirement is highlighted by the fact that it was segregated from the other requirements under Article 805 and embodied in a distinct and separate provision.

An acknowledgment is the act of one who has executed a deed in going before some competent officer or court and declaring it to be his act or deed. It involves an extra step undertaken whereby the signatory actually declares to the notary public that the same is his or her own free act and deed. Thus acknowledgment in a notarial will has two-fold purpose: (1) to safeguard the testator’s wishes long after his demise, and (2) to assure that his estate is administered in the manner that he intends it to be done.

A cursory examination of the acknowledgment of the will in question shows that this particular requirement was neither strictly or substantially complied with. For

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one, there was the conspicuous absence of a notation of the residence certificates of the notarial witnesses Noynay and Grajo in the acknowledgment. Similarly, the notation of the testator’s old residence certificate in the same acknowledgment was a clear breach of the law. These omissions by respondent invalidate the will.

As the acknowledging officer of the contested will, respondent was required to faithfully observe the formalities of a will and those of notarization. As we held in Santiago v Rafanan:

“The Notarial law is explicit on the obligations and duties of notaries public. They are required to certify that the party to every document acknowledged before him had presented the proper residence certificate (or exemption from the residence tax)’ and to enter its number, place of issue and date as part of such certification.”

These formalities are mandatory and cannot be disregarded, considering the degree of importance and evidentiary weight attached to notarized documents. A notary public, especially a lawyer, is bound to strictly observe these elementary requirements.

x x x

In the issuance of a residence certificate, the law seeks to establish the true and correct identity of the person to whom it is issued, as well as the payment of residence taxes for the current year. By having allowed decedent to exhibit an expired residence certificate, respondent failed to comply with the requirements of the old Notarial Law and the Residence Tax Act. As much could be said of his failure to demand the exhibition of the residence certificates of Noynay and Grajo.

x x x

Puno (C.J., Chairperson), Sandoval-Gutierrez, Azcuna and Leonardo-de Castro, JJ., concur.

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SUROZA v HONRADOAdm. Matter No. 2026-CFI, 19 December 1981

110 SCRA 388

Every will must be in writing and executed in a language or dialect known to the testator. In this case, the testatrix was proved to be illiterate. However, her alleged notarial will was written in English, which in the opening paragraph of the will, was supposedly a language known to her. The contradiction in the concluding paragraph of the will clearly indicated the nullity of the purported will.

The procedural lapses of the counsel for oppositor must likewise be noted.

Considering that the Supreme Court confirmed the nullity of the will, did such fact entitle the intestate heirs of the testatrix to the property devised under the void will?

Aquino, J.:

x x x

Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (Philippine Scouts), Fort McKinley, married Marcelina Salvador in 1923. They were childless. They reared a boy named Agapito who used the surname Suroza and who considered them as his parents as shown in his 1945 marriage contract with Nenita de Vera.

Mauro died in 1942. Marcelina, as a veteran's widow, became a pensioner of the Federal Government. That explains why on her death she had accumulated some cash in two banks.

Agapito and Nenita begot a child named Lilia who became a medical technologist and went abroad. Agapito also became a soldier. He was disabled and his wife Nenita was appointed as his guardian in 1953 when he was declared an incompetent in Special Proceedings No. 1807 of the Court of First Instance of Rizal, Pasig Branch I.

x x x

On a date not indicated in the record, the spouses Antonio Sy and Hermogena Talan begot a child named Marilyn Sy, who, when a few days old, was entrusted to Arsenia de la Cruz (apparently a girl friend of Agapito) and who was later delivered to Marcelina Salvador Suroza who brought her up as a supposed daughter of Agapito. She stayed with Marcelina but was not legally adopted by Agapito. She married Oscar Medrano and is residing at 7666 J. B. Roxas Street, Makati, apparently a neighbor of Marina Paje, a resident of 7668 J. B. Roxas Street.

Marcelina supposedly executed a notarial will in Manila on July 23, 1973, when

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she was 73 years old. That will, which is in English, was thumb marked by her. She was illiterate. Her letters in English to the Veterans Administration were also thumb marked by her. In that will, Marcelina bequeathed all her estate to her supposed granddaughter Marilyn.

Marcelina died on November 15, 1974 at the Veterans Hospital in Quezon City. At the time of her death, she was a resident of 7374 San Maximo Street, Olimpia, Makati, Rizal. She owned a 150 square meter lot and house in that place. She acquired the lot in 1966.

On January 13, 1975, Marina Paje, alleged to be a laundry woman of Marcelina and the executrix in her will (the alternate executrix was Juanita Macaraeg, mother of Oscar, Marilyn's husband), filed with the Court of first Instance of Rizal, Pasig Branch 25, a petition for the probate of Marcelina's alleged will. The case was assigned to Judge Reynaldo P. Honrado.

As there was no opposition, Judge Honrado commissioned his deputy clerk of court, Evangeline S. Yuipco, to hear the evidence. The transcripts of the stenographic notes taken at the hearing before the deputy clerk of court are not in the record.

In an order dated March 31, 1975, Judge Honrado appointed Marina as administratrix. On the following day, April 1, Judge Honrado issued two orders directing the Merchants Banking Corporation and the Bank of America to allow Marina to withdraw the sum of P10,000.00 from the savings accounts of Marcelina S. Suroza and Marilyn Suroza and requiring Corazon Castro, the custodian of the passbooks, to deliver them to Marina.

Upon motion of Marina, Judge Honrado issued another order dated April 11, 1975, instructing a deputy sheriff to eject the occupants of the testatrix's house, among whom was Nenita V. Suroza, and to place Marina in possession thereof.

That order alerted Nenita to the existence of the testamentary proceedings for the settlement of Marcelina's estate. She and the other occupants of the decedent's house filed on April 18 in the said proceeding a motion to set aside the order of April 11 ejecting them. They alleged that the decedent's son Agapito was the sole heir of the deceased, that he has a daughter named Lilia, that Nenita was Agapito's guardian and that Marilyn was not Agapito's daughter nor the decedent's granddaughter. Later they questioned the probate court's jurisdiction to issue the ejectment order.

In spite of the fact that Judge Honrado was already appraised that persons, other than Marilyn, were claiming Marcelina's estate, he issued on April 23 an order probating her supposed will wherein Marilyn was the instituted heiress.

On April 24, Nenita filed in the testate case an omnibus petition "to set aside proceedings, admit opposition with counter-petition for administration and preliminary injunction." Nenita in that motion reiterated her allegation that Marilyn was a stranger to Marcelina, that the will was not duly executed and attested, that it was procured by

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means of undue influence employed by Marina and Marilyn and that the thumb marks of the testatrix was procured by fraud or trick.

Nenita further alleged that the institution of Marilyn as heir is void because of the preterition of Agapito and that Marina was not qualified to act as executrix.

To that motion was attached an affidavit of Zenaida A. Penaojas, the housemaid of Marcelina, who swore that the alleged will was falsified.

Not content with her motion to set aside the judgment order and her omnibus motion to set aside the proceedings, Nenita filed the next day, April 25, an opposition to the probate of the will and a counter-petition for letters of administration. In that opposition, Nenita assailed the due execution of the will and stated the names and addresses of Marcelina's intestate heirs, her nieces and nephews. Nenita was not aware of the decree of probate dated April 23, 1975.

To that opposition was attached an affidavit of Dominga Salvador Teodocio, Marcelina's niece, who swore that Marcelina never executed a will.

Marina in her answer to Nenita's motion to set aside the proceedings admitted that Marilyn was not Marcelina's granddaughter but was the daughter of Agapito and Arsenia de la Cruz, and that Agapito was not Marcelina's son but merely an anak-anakan who was not legally adopted.

Judge Honrado in his order of July 17, 1975 dismissed Nenita's counter-petition for the issuance of letters of administration because of the non-appearance of her counsel at the hearing. She moved for the reconsideration of that order.

In a motion dated December 5, 1975, for the consolidation of all pending incidents, Nenita V. Suroza reiterated her contention that the alleged will is void because Marcelina did not appear before the notary public and because it was written in English which is not known to her.

Judge Honrado in his order of June 8, 1976, "denied" the various incidents "raised" by Nenita.

Instead of appealing from that order and the order probating the will, Nenita "filed a case to annul" the probate proceedings. That case, Civil Case No. 24276, Suroza v Paje and Honrado, was also assigned to Judge Honrado. He dismissed it in his order of February 16, 1977.

Judge Honrado in his order dated December 22, 1977, after noting that the executrix had delivered the estate to Marilyn, and that the estate tax had been paid, closed the testamentary proceeding.

About ten months later, in a verified complaint x x x filed in this Court, Nenita charged Judge Honrado with having probated the fraudulent will of Marcelina. The

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complaint reiterated her contention that the testatrix was illiterate as shown by the fact that she affixed her thumb mark to the will and that she did not know English, the language in which the will was written. (In the decree of probate, Judge Honrado did not make any finding that the will was written in a language known to the testatrix.)

Nenita further alleged that Judge Honrado, in spite of his knowledge that the testatrix had a son named Agapito (the testatrix's supposed sole compulsory heir and legal heir), who was preterited in the will, did not take into account the consequences of such a preterition.

Nenita disclosed that she talked several times with Judge Honrado and informed him that the testatrix did not know the executrix, Marina Paje, that the beneficiary's real name is Marilyn Sy and that she was not the next of kin of the testatrix.

Nenita denounced Judge Honrado for having acted corruptly in allowing Marina and her cohorts to withdraw from various banks the deposits of Marcelina.

x x x

Judge Honrado in his brief comment did not deal specifically with the allegations of the complaint. He merely pointed to the fact that Nenita did not appeal from the decree of probate and that in a motion dated July 6, 1976 she asked for a thirty-day period within which to vacate the house of the testatrix.

x x x

The 1978 complaint against Judge Honrado was brought to the attention of this Court in the Court Administrator's memorandum of September 25, 1980. The case was referred to Justice Juan A. Sison of the Court of Appeals for investigation, report and recommendation. He submitted a report dated October 7, 1981.

On December 14, 1978, Nenita filed in the Court of Appeals against Judge Honrado a petition for certiorari and prohibition wherein she prayed that the will, the decree of probate and all the proceedings in the probate case be declared void.

Attached to the petition was the affidavit of Domingo P. Aquino, who notarized the will. He swore that the testatrix and the three attesting witnesses did not appear before him and that he notarized the will "just to accommodate a brother lawyer on the condition" that said lawyer would bring to the notary the testatrix and the witnesses but the lawyer never complied with his commitment.

The Court of Appeals dismissed the petition because Nenita's remedy was an appeal and her failure to do so did not entitle her to resort to the special civil action of certiorari.

Relying on that decision, Judge Honrado filed on November 17, 1981 a motion

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to dismiss the administrative case for having allegedly become moot and academic.

We hold that disciplinary action should be taken against respondent judge for his improper disposition of the testate case which might have resulted in a miscarriage of justice because the decedent's legal heirs and not the instituted heiress in the void will should have inherited the decedent's estate.

x x x

In this case, respondent judge, on perusing the will and noting that it was written in English and was thumb marked by an obviously illiterate testatrix, could have readily perceived that the will is void.

In the opening paragraph of the will, it was stated that English was a language "understood and known" to the testatrix. But in its concluding paragraph, it was stated that the will was read to the testatrix "and translated into Pilipino language." That could only mean that the will was written in a language not known to the illiterate testatrix, and therefore, it is void because of the mandatory provision of article 804 of the Civil Code that every will must be executed in a language or dialect known to the testator. Thus, a will written in English, which was not known to the Igorot testator, is void and was disallowed (Acop v Piraso, 52 Phil 660).

The hasty preparation of the will is shown in the attestation clause and notarial acknowledgment where Marcelina Salvador Suroza is repeatedly referred to as the "testator" instead of "testatrix."

Had respondent judge been careful and observant, he could have noted not only the anomaly as to the language of the will but also that there was something wrong in instituting the supposed granddaughter as sole heiress and giving nothing at all to her supposed father who was still alive.

Furthermore, after the hearing conducted by respondent deputy clerk of court, respondent judge could have noticed that the notary was not presented as a witness.

In spite of the absence of an opposition, respondent judge should have personally conducted the hearing on the probate of the will so that he could have ascertained whether the will was validly executed.

Under the circumstances, we find his negligence and dereliction of duty to be inexcusable.

WHEREFORE, for inefficiency in handling the testate case of Marcelina S. Suroza, a fine equivalent to his salary for one month is imposed on respondent judge (his compulsory retirement falls on December 25, 1981). x x x.

Barredo (Chairman), de Castro, Ericta and Escolin, JJ., concur. Concepcion, Jr., J., on leave; Abad Santos, J. took no part.

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REYES v VDA. DE VIDALNo. L-2867, 21 April 1952

2 SCUD 53

Every will must be executed in a language known to the testator. While this requirement is mandatory and, as a rule, must be proved during probate proceedings, a failure to introduce evidence in this respect does not necessarily justify the denial of probate. Under certain conditions, knowledge of the language in which the will was written may be presumed.

In this case, the probative value of the testimony of the instrumental witnesses must be noted, particularly when such testimony is sought to be controverted by the testimony of an expert witness.

Bautista-Angelo, J.:

This concerns the admission to probate of a document claimed to be the last will and testament of Maria Zuniga vda. de Pando who died in the City of Manila on October 29, 1945.

On November 6, 1945, a petition for the probate of the said will was filed in the Court of First Instance of Manila. On December 21, 1945, Dolores Zuñiga vda de Vidal, sister of the deceased, filed an opposition based on several grounds. And, after several days of trial, at which both parties presented their respective evidence, the court rendered its decision disallowing the will on the ground that the signatures of the deceased appearing therein are not genuine, that it was not proven that the deceased knew the Spanish language in which it was written, and that even if the signatures are genuine, the same reveal that the deceased was not of sound mind when she signed the will. From this decision petitioner appealed to this Court.

While petitioner imputes nine errors to the lower court, we believe, however, that for purposes of this appeal a decision of some would be sufficient. Thus, the issues may be boiled down as follows: 1) whether or not the signatures of the deceased appearing in the will are genuine; 2) whether or not there is evidence to show that the testatrix knew the language in which the will was written; and 3) whether or not the testatrix was of sound and disposing mind when she signed the will.

1. To prove that the will was signed by the testatrix in accordance with law, petitioner presented as witnesses the three persons who attested to the execution of the will. These witnesses are: Cornelia Gonzales de Romero, Quintin Ulpindo and Consuelo B. de Catindig. The first used to provide the deceased with ice every day, and in one of those occasions she went to her house to bring ice. She was requested to act as witness to the execution of the will. The second was a laborer whose job was to fix bed made of rattan, and in one of those days he went to the house of the deceased to work, he was asked also to witness the signing of the will. And the third was a neighbor of the deceased for many years who was also requested to act as an instrumental witness. These witnesses testified in their own simple and natural way

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that the deceased signed the will seated on her bed but over a small table placed near the bed in their presence, and after she had signed it in the place where her signatures appear, they in turn signed the will in her presence and in the presence of one another. This is the substance of what they have testified and from an examination of their testimony the court entertains no doubt that they had told the truth. There is nothing in their testimony which may in any way reflect against their credibility nor has the oppositor proven any fact of circumstance which may give rise to the suspicion that they testified out of personal interest or pecuniary consideration. They have impressed the court as simple p[ersons who had intervened in the execution of the will out merely of deference to the testatrix whom they had served for sometime and had known to be a good and respectable woman.

What evidence has the oppositor presented to contradict the testimony of these instrumental witnesses? Only one expert witness, Jose G. Villanueva, who made a comparative analysis of the signatures appearing in the will in relation to some genuine signatures of the deceased, and in fact testified on the analysis and study he had made of said signatures and submitted a memorandum on the study and comparison he has made. And in his testimony as well as in his memorandum, this witness has reached the conclusion that the hand that wrote the signatures of the deceased appearing in the will is not the same hand that wrote the genuine signatures he had examined and which he used as basis of his analytical study, thereby concluding that said signatures are not genuine. The lower court gave full faith and credit to the opinion of this expert witness, and declared as a result that the will cannot be admitted to probate.

There are, however, certain important facts and circumstances which make us differ from this opinion of the lower court. In the first place, we find the opinion of this expert witness has been rebutted by another expert witness, Jose C. Espinosa, whose opinion, to our mind, deserves more weight and credence. And our reason for reaching this conclusion is the fact that the standards of comparison used by Espinosa are more reliable than those used by Villanueva. Thus, the standards used by Villanueva in the comparison are two signatures appearing in two documents executed on November 10, 1941, one signature in an identification card affixed on April 1940, a half signature appearing in a letter written on October 8, 1943, one signature appearing in a letter written on July 16, 1945, and one signature appearing in a letter written in January 1945, whereas, the disputed signatures appearing in the will were affixed on October 29, 1945. On the other hand, the standards used by Espinosa in making his comparative study bears dates much closer to that of the disputed signatures. Thus he examined four genuine signatures that were affixed on October 16, 1945, other four signatures affixed on October 1945, one on January 2, 1945, one on January 24, 1945, and one on September 24, 1945. He also examined one affixed on March 12, 1941, only for emphasis. The closeness or proximity of the time in which the standards used had been written to that of the suspected signature or document is very important to bring about an accurate analysis and conclusion. The selection of the proper standards of comparison is of paramount importance especially if we consider the age and state of health of the author of the questioned signatures. A signature affixed in 1941 may involve characteristics different from those borne by a

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signature affixed in 1945. And this is because the passing of time and the increase in age may have a decisive influence in the writing characteristics of a person. It is for these reasons that the authorities are of the opinion that in order to bring about an accurate comparison and analysis, the standards of comparison must be as close as possible in point of time to the suspected signature. Such was not followed in the study made by Villanueva. But such was observed by the study made by Espinosa. It is for this reason that we hold that Espinosa's opinion deserved more weight and consideration.

x x x

2. Another ground on which the lower court based the disallowance of the will is the failure of the petitioner to prove that the testator (sic) knew and spoke the language in which the will in question appears to have been written. According to the lower court, the law requires that the will should be written in the dialect or language known to the testator and this fact not having been proven, the probate of the will must fail. And so the will was disallowed.

There is indeed nothing in the testimony of the witnesses presented by the petitioner which would indicate that the testatrix knew and spoke the Spanish language used in the preparation of the will in question. But, in our opinion, this failure alone does not in itself suffice to conclude that this important requirement of the law has not been complied with, it appearing that there is enough evidence on record which supplies this technical omission. In the first place, we have the undisputed fact that the deceased was a mestiza espanola, was married to a Spaniard, Recaredo Pando, and made several trips to Spain. In the second place, we have the very letters submitted as evidence by the oppositor written in Spanish by the deceased in her own handwriting. Having proven by her very own evidence that the deceased possessed the Spanish language, oppositor cannot now be allowed to allege the contrary. These facts give rise to the presumption that the testator knew the language in which the testament has been written, which presumption stands unless the contrary is proved. And this presumption has not been overcome. And finally, we have the very attestation clause of the will which states that the testatrix knew and possessed the Spanish language. It is true that this matter is not required to be stated in the attestation clause, but its inclusion can only mean that the instrumental witnesses wanted to make it of record that the deceased knew the language in which the will was written. There is therefore no valid reason why the will should be avoided on this ground.

3. The remaining ground which the lower court has considered in disallowing the will is the fact that the deceased was not of sound and disposing mind when she signed the will, and it reached this conclusion, not because of any direct evidence on the matter, but simply because the deceased signed the will in somewhat varied form. On this point, the lower court said:

El juzgado es de opinion que aunque se admita que las firmas arriba indicadas fueran de Maria Zuniga vda. de Pando, las misma revelan que ella no estaba en el pleno goce de sus facultades mentales cuando la hicieron

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firmar el documento, Exhibit "C", pues el hecho de que en una sola ocasion la repetida Maria Zuniga vda. de Pando firmo dos veces, sin escribir su verdadero nombre, demuestra que ella no se daba cuenta de sus actos por no hallarse mentalmente sano. Si esto es asi, no se debe legalizar como testamento y ultima voluntad de la finada Maria Zuñiga vda. de Pando el documento, Exhibit "C", porque el Articulo 614 de la Ley 190 y el Articulo 12, Reglamentos de los Tribunales, disponen que solamente puede otogar testamento las personas que el tiempo de su otorgemiento estaban en el pleno goce de sus facultades mentales.

The above conclusion is contrary to what the instrumental witnesses have said on this point. Cornelia Gonzales de Romero stated that she spoke to the deceased before the signing of the will, and judging from the way she spoke she was of the impression that the deceased was of sound mind at that time. To the same effect is the testimony of Consuelo B. de Catindig. She said that her impression when the deceased signed the will was that she could still talk and read, only that she was weak. In fact she read the will before signing it. These statements had not been contradicted. They give an idea of the mental condition of the deceased. While the signatures affixed by the deceased in the will differ from each other in certain respects, this is only due to her age and state of health rather than to a defective mental condition. They do not reveal a condition of forgery or lack of genuineness. These differences or irregularities are common in writings of old people and, far from showing lack of genuineness, are indicative of the age, sickness or weak condition of the writer. A comparison of the three disputed signatures in the will readily give this impression.

Abbreviated, distorted and illegible forms, which are sufficiently free and rapid, often actually indicate genuineness rather than forgery even though they are very unusual and not exactly like those in the standard writing. Those who write with difficulty or hesitation through some physical infirmity may sometime produce broken and unfinished signatures and these results, which in themselves are distinctly divergent as compared with signatures produced under conditions of strength and health, may forcefully indicate genuineness. Under conditions of weakness due to disease or age, parts of a genuine signature may be clumsily written over a second time not at just the same place and in a way which clearly shows that the writer either could not see or was so weak and inattentive as not to case what the result might be. This careless, perfectly evident repetition (figure 184), unlike the painstaking and delicate retouching of the former, often indicates genuineness. [Page 365, Questioned Documents by Osborne, 2nd Edition 1927.]

We are, therefore, of the opinion that the lower court erred in disallowing the will Exhibit "C".

Wherefore, the decision appealed from is hereby reversed. The court admits the will, Exhibit "C" to probate, and remands this case to the lower court for further proceedings, with cost against the appellee.

Paras, C.J., Feria, Bengzon, Tuason, Montemayor and Reyes, JJ., concur. Pablo and Jugo, JJ., took no part.

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BALONAN v ABELLANA, ET AL.No. L-15153, 31 August 1960

109 Phil 359

Article 805 of the Civil Code prescribes the manner in which the will must be signed by the testator; i.e., "subscribed at the end thereof by the testator himself, or by the testator's name written by some other person in his presence and by his express direction. Balonan confirms that this requirement is mandatory, and that a failure to comply therewith is a fatal defect. It is not important that the person to whom the function of writing the testator's name indicates or writes his own name. But it is imperative that this individual should write the name of the testator. Balonan gives two alternate ways of complying with the statutory requirement.

Labrador, J.:

The facts as found by the trial court are as follows:

It appears on record that the last Will and Testament (Exhibit "A"), which is sought to be probated, is written in the Spanish language and consists of two (2) typewritten pages double space. The first page is signed by Juan Bello and under his name appears typewritten "Por la testadora Anacleta Abellana, residence certificate A-1167629, Enero 20, 1951, Ciudad de Zamboanga," and on the second page appears the signature of the three (3) instrumental witnesses Blas Sebastian, Faustino Macaso and Rafael Ignacio, at the bottom of which appears the signature of T. de los Santos and below his signature is his official designation as the notary public who notarized the said testament. On the first page on the left margin of the said instrument also appears the signatures of the instrumental witnesses. On the second page, which is the last page of the said last Will and Testament, also appears the signature of the three (3) instrumental witnesses and on that second page on the left margin appears the signature of Juan Bello under whose name appears handwritten the following phrase "Por la Testadora Anacleta Abellana." The will is duly acknowledged before Notary Public, Attorney Timoteo de los Santos.

The appeal squarely presents the following issue: Does the signature of Dr. Juan A. Abello above the typewritten statement "Por la Testadora Anacleta Abellana x x x, Ciudad de Zamboanga," comply with the requirements of the law prescribing the manner in which a will shall be executed?

The present law, Article 805 of the Civil Code, in part provides as follows:

Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself, or by the testator's name written by some other person in his presence and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.

Note that the old law as well as the new require that the testator himself sign the will, or if he cannot do so, the testator's name must be written by some other

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person in his presence and by his express direction. Applying this provision this Court said in the case of Ex Parte Pedro Arcenas, et al., 4 Phil 700:

It will be noticed from the above-quoted section 618 of the Code of Civil Procedure that where the testator does not know how, or is unable, to sign, it will not be sufficient that one of the attesting witnesses signs the will at the testator's request, the notary certifying thereto as provided in article 695 of the Civil Code, which, in this respect, was modified by section 618 above referred to, but it is necessary that the testator's name be written by the person signing in his stead in the place where he would have signed if he knew how or was able so to do, and this in the testator's presence and by his express direction; so that a will signed in a manner different than that prescribed by law shall not be valid and will not be allowed to be probated.

Where a testator does not know how, or is unable for any reason, to sign the will himself, it shall be signed in the following manner: "John Doe by the testator, Richard Roe"; or in this form: "By the testator, John Doe, Richard Roe." All this must be written by the witness signing at the request of the testator.

Therefore, under the law in force, the witness Naval A. Vidal should have written at the bottom of the will the full name of the testator and his own name in one of the forms given above. He did not do so, however, and this failure to comply with the law is a substantial defect which affects the validity of the will and precludes its allowance, notwithstanding the fact that no one appeared to oppose it.

The same ruling was laid down in the case of Cuison v Concepcion, 5 Phil 552. In the case of Barut v Cabacungan, 21 Phil 461, we held that the important thing is that it clearly appears that the name of the testatrix was signed at her express direction; it is unimportant whether the person who writes the name of the testatrix signs his own or not. Cases of the same import are as follows: Ex Parte Juan Ondevilla, 13 Phil 479; Caluya v Domingo, 27 Phil 330; Garcia v Lacuesta, 90 Phil 489.

In the case at bar, the name of the testatrix Anacleta Abellana, does not appear written under the will by said Abellana herself, or by Dr. Juan Abello. There is, therefore, a failure to comply with the express requirement in the law that the testator must himself sign the will, or that his name be affixed thereto by some other person in his presence and by his express direction.

It appearing that the above provision of the law has not been complied with, we are constrained to declare that the said will of the deceased Anacleta Abellana may not be admitted to probate.

Paras, C.J., Bengzon, Padilla, Concepcion, Reyes, J.B.L., Barrera, Gutierrez David, and Dizon, JJ., concur.

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GARCIA v LACUESTANo. L-4067, 29 November 1951

90 Phil 489

Where it appears that the testator caused another person to write his name in the will, such fact must be stated in the attestation clause. A failure to make such a recital is a fatal defect. That the testator affixed the sign of the cross after his name written by another person is not sufficient indication that the testator in fact signed the will, absent a clear showing that the sign of the cross is the customary signature of the testator, or at the very least, one of the ways by which the testator signed his name.

Paras, C.J.:

This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado dated January 3, 1943. The will is written in the Ilocano dialect and contains the following attestation clause:

We, the undersigned, by these presents do declare that the foregoing testament of Antero Mercado was signed by himself and also by us below his name and of this attestation clause and that of the left margin on the three pages thereof. Page three the continuation of this attestation clause; this will is written in Ilocano dialect which is spoken and understood by the testator, and it bears the corresponding number in letter which compose of three pages and all of them were signed in the presence of the testator and witnesses, and the witnesses in the presence of the testator and all and each and everyone of us witnesses.

In testimony whereof, we sign this testament, this the third day of January one thousand nine hundred forty-three (1943) A.D.

Sgd. Numeriano Evangelista Sgd. Rosendo Cortes

Sgd. Bibiana Illegible

The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero Mercado, following below by "A ruego del testador" and the name of Florentino Javier. Antero Mercado is alleged to have written a cross immediately after his name. The Court of Appeals, reversing the judgment of the Court of First Instance of Ilocos Norte, ruled that the attestation clause failed (1) to certify that the will was signed on all the left margins of the three pages and at the end of the will by Atty. Florentino Javier at the express request of the testator in the presence of the testator and each and every one of the witnesses; (2) to certify that after the signing of the name of the testator by Atty. Florentino Javier at the former's request said testator has written a cross at the end of his name and on the left margin of the three pages of which the will consists and at the end thereof; (3) to certify that the three witnesses signed the will in all the pages thereon in the presence of the testator and of each other.

In our opinion, the attestation clause is fatally defective for failing to state that

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Antero Mercado caused Atty. Florentino Javier to write the testator's name under his express direction, as required by section 618 of the Code of Civil Procedure. The herein petitioner (who is appealing by way of certiorari from the decision of the Court of Appeals) argues, however, that there is no need for such recital because the cross written by the testator after his name is sufficient signature and the signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is that the cross is as much a signature as a thumb mark, the latter having been held sufficient by this Court in the cases of de Gala v Gonzales and Ona, 53 Phil 104; Dolar v Diancin, 55 Phil 479; Payad v Tolentino, 62 Phil 848; Neyra v Neyra, 76 Phil 296; and Lopez v Liboro, 81 Phil 429.

It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado or even one of the ways by which he signed his name. After mature reflection, we are not prepared to liken the mere sign of a cross to a thumb mark, and the reason is obvious. The cross cannot and does not have the trustworthiness of a thumb mark.

What has been said makes it unnecessary for us to determine whether there is sufficient recital in the attestation clause as to the signing of the will by the testator in the presence of the witnesses, and by the latter in the presence of the testator and of each other.

Wherefore, the appealed decision is hereby affirmed, with costs against the petitioner. So ordered.

Feria, Pablo, Bengzon, Reyes, Jugo, and Bautista Angelo, JJ., concur.

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NERA v RIMANDONo. 5971, 27 February 1911

18 Phil 450

Article 805 requires that the will must be signed by the testator and the witnesses in the presence of one another. Nera provides the test of presence. It is not essential that the testator and the witnesses should look at the paper purporting to be the will of the testator at the time each of them affix their signatures. It is sufficient that each of them be physically present at the place where execution will take place and that they be in such position with respect to each one, that by merely casting their eyes in the proper direction, they would have been able to see each one affix his signature on the will without any physical obstruction.

Is it enough, therefore, that the testator and each of the witnesses be able to see each of them sign the will without physical obstruction - even if there is lack of understanding as to the nature of the document being executed?

Carson, J.:

The only question raised by the evidence in this case as to the due execution of the instrument propounded as a will in the court below, is whether one of the subscribing witnesses was present in the small room where it was executed at the time when the testator and the other subscribing witnesses attached their signatures; or whether at that time he was outside, some eight or ten feet away, in a large room connecting with the smaller room by a doorway across which was hung a curtain which made it impossible for one in the outside room to see the testator and the other subscribing witnesses in the act of attaching their signatures to the instrument.

A majority of the members of this court is of the opinion that this subscribing witness was in the same room with the testator and the other subscribing witnesses at the time when they attached their signatures to the instrument, and this finding of course, disposes of the appeal and necessitates the affirmance of the decree admitting the document to probate as the last will and testament of the deceased.

The Trial Judge does not appear to have considered the determination of this question of fact of vital importance in the determination of this case, as he was of the opinion that under the doctrine laid down in the case of Jaboneta v Gustilo (5 Phil 541) the alleged fact that one of the subscribing witnesses was in the outer room when the testator and the other describing (sic) witnesses signed the instrument in the inner room, had it been proven, would not be sufficient in itself to invalidate the execution of the will. But we are unanimously of the opinion that had this subscribing witness been proven to have been in the outer room at the time when the testator and the other subscribing witnesses attached their signatures to the instrument in the inner room, it would have been invalid as a will, the attaching of those signatures under such circumstances not being done "in the presence" of the witness in the outer room. This because the line of vision from this witness to the testator and the other subscribing witnesses would necessarily have been impeded by the curtain separating the inner

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room from the outer room "at the moment of inscription of each signature."

In the case just cited, on which the trial court relied, we held that:

The true test of presence of the testator and the witnesses in the execution of a will is not whether they actually saw each other, but whether they might have seen each other sign, had they chosen to do so, considering their mental and physical condition and position with relation to each other at the moment of inscription of each signature.

But it is especially to be noted that the position of the parties with relation to each other at the moment of the subscription of each signature, must be such that they may see each other sign if they chose to do so. This, of course, does not mean that the testator and the subscribing witnesses may be held to have executed the instrument in the presence of each other if it appears that they would not have been able to see each other sign at that moment, without changing their relative positions or existing conditions. The evidence in the case relied upon by the trial judge discloses that "at the moment when the witness Javellana signed the document he was actually and physically present and in such position with relation to Jaboneta that he could see everything that took place by merely casting his eyes in the proper direction and without any physical obstruction to prevent his doing so." And the decision merely laid down the doctrine that the question whether the testator and the subscribing witnesses to an alleged will sign the instrument in the presence of each other does not depend upon proof of the fact that their eyes were actually cast upon the paper at the moment of its subscription by each of them, but that at that moment existing conditions and their position with relation to each other were such that by merely casting the eyes in the proper direction they could have seen each other sign. To extend the doctrine further would open the door to the possibility of all manner of fraud, substitution, and the like, and would defeat the purpose for which this particular condition is prescribed in the code as one of the requisites in the execution of a will.

The decree entered by the court below admitting the instrument propounded therein to probate as the last will and testament of Pedro Rimando, deceased, is affirmed with cost in this instance against appellant.

Arellano, C.J., Mapa, Moreland and Trent, JJ., concur.

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TABOADA v ROSALNo. L-35033, 5 November 1982

118 SCRA 195

Article 805 requires that the testator should sign at the end of the will. This requirement does not apply to the subscribing witnesses, who may sign in any other part of each page of the will. The duty of the witnesses to subscribe is substantially complied with by any such signature. The failure of the attestation clause to indicate the number of pages upon which the will is written is, as a rule, a fatal defect. However, where the notarial acknowledgement does indicate the number of pages of the will, and the same conforms to an actual count of the pages, the deficiency is cured. A reference to Article 809, in this regard, is appropriate.

Gutierrez, Jr., J.:

This is a petition for review of the orders issued by the Court of First Instance of Southern Leyte, Branch III, in Special Proceedings No. R-1713, entitled In the Matter of the Petition for Probate of the Will of Dorotea Perez, Deceased; Apolonio Taboada, Petitioner, which denied the probate of the will, the motion for reconsideration and the motion for appointment of a special administrator.

In the petition for probate filed with the respondent court, the petitioner attached the alleged last will and testament of the late Dorotea Perez. Written in the Cebuano-Visayan dialect, the will consists of two pages. The first page contains the entire testamentary dispositions and is signed at the end or bottom of the page by the testatrix alone and at the left hand margin by the three (3) instrumental witnesses. The second page which contains the attestation clause and the acknowledgment is signed at the end of the attestation clause by the three (3) attesting witnesses and at the left hand by the testatrix.

Since no opposition was filed after the petitioner's compliance with the requirement of publication, the trial court commissioned the branch clerk of court to receive the petitioner's evidence. Accordingly, the petitioner submitted his evidence and presented Vicente Timkang, one of the subscribing witnesses to the will, who testified on its genuineness and due execution.

The trial court, thru then Presiding Judge Ramon C. Pamantian issued the questioned order denying the probate of the will of Dorotea Perez for want of a formality in its execution. In the same order, the petitioner was also required to submit the names of the intestate heirs with their corresponding addresses so that they could be properly notified and could intervene in the settlement of the estate.

Instead of complying with the order of the trial court, the petitioner filed a manifestation and/or motion, ex parte, praying for a thirty-day period within which to deliberate on any step to be taken as a result of the disallowance of the will. He also asked that the ten-day period required by the court to submit the names of intestate heirs with their addresses be held in abeyance.

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The petitioner filed a motion for reconsideration of the order denying probate of the will. However, the motion together with the previous manifestation and/or motion could not be acted upon by the Honorable Ramon C. Pamintuan due to his transfer to his new station at Pasig, Rizal. The said motions or incidents were still pending resolution when respondent Judge Avelino S. Rosal assumed the position of presiding judge of the respondent court.

Meanwhile, the petitioner filed a motion for the appointment of a special administrator.

Subsequently, the new judge denied the motion for reconsideration as well as the manifestation and/or motion filed ex parte. In the same order of denial, the motion for the appointment of special administrator was likewise denied because of the petitioner's failure to comply with the order requiring him to submit the names of the intestate heirs and their addresses.

The petitioner decided to file the present petition.

For the validity of a formal notarial will, does Article 805 of the Civil Code require that the testatrix and all the three instrumental and attesting witnesses sign at the end of the will and in the presence of the testatrix and of one another?

x x x

The respondent Judge interprets the above quoted provision of law to require that, for a notarial will to be valid, it is not enough that only the testatrix signs at the "end" but all the three subscribing witnesses must also sign at the same place or at the end, in the presence of the testatrix and of one another because the attesting witnesses to a will attest not merely the will itself but also the signature of the testator. It is not sufficient compliance to sign the page where the end of the will is found, at the left hand margin of that page.

On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it a condition precedent or a matter of absolute necessity for the extrinsic validity of the will that the signatures of the subscribing witnesses should be specifically located at the end of the will after the signature of the testatrix. He contends that it would be absurd that the legislature intended to place so heavy an import on the space or particular location where the signatures are to be found as long as this space or particular location wherein the signature are found is consistent with good faith and the honest frailties of human nature.

We find the petition meritorious.

Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at the end by the testator himself or by the testator's name written by another person in his presence, and by his express direction, and attested and

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subscribed by three or more credible witnesses in the presence of the testator and of one another.

It must be noted that the law uses the term attested and subscribed. Attestation consists in witnessing the testator's execution of the will in order to see and take note mentally that those things are done which the statute requires for the execution of a will and that the signature of the testator exists as a fact. On the other hand, subscription is the signing of the witnesses' names upon the same paper for the purpose of identification of such paper as the will which was executed by the testator.

Insofar as the requirement of subscription is concerned, it is our considered view that the will in this case was subscribed in a manner which fully satisfies the purpose of identification.

The signatures of the instrumental witnesses on the left margin of the first page of the will attested not only to the genuineness of the signature of the testatrix, but also the due execution of the will as embodied in the attestation clause.

While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual forms should be ignored, especially where the authenticity of the will is not assailed. (Gonzales v Gonzales, 90 Phil 444, 449)

The law is to be liberally construed, the "underlying and fundamental objective permeating the provisions of the law on wills in this project consists in the liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing his last wishes but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator. This objective is in accord with the modern tendency in respect to the formalities in the execution of a will." x x x

Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were it not for the defect in the place of signatures of the witnesses, he would have found the testimony sufficient to establish the validity of the will.

The objects of attestation and of subscription were fully met and satisfied in the present case when the instrumental witnesses signed at the left margin of the sole page which contains all the testamentary dispositions, especially so when the will was properly identified by subscribing witness Vicente Timkang to be the same will executed by the testatrix. There was no question of fraud or substitution behind the questioned order.

We have examined the will in question and noticed that the attestation clause failed to state the number of pages used in writing the will. This would have been a fatal defect were it not for the fact that, in this case, it is discernible from the entire will that it is really and actually composed of only two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first page which contains the entirety of the testamentary dispositions is signed by the testatrix at the end or at the

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bottom while the instrumental witnesses signed at the left margin. The other page which is marked as "Pagina Dos" comprises the attestation clause and the acknowledgment. The acknowledgment itself states that "This Last Will and Testament consists of two pages including this page."

In Singson v Florentino, et al. (92 Phil 161, 164) this Court made the following observations with respect to the purpose of the requirement that the attestation clause must state the number of pages used:

The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which requires that the attestation clause shall state the number of pages or sheets upon which the will is written, which requirement has been held to be mandatory as an effective safeguard against the possibility of interpolation or omission of some of the pages of the will to the prejudice of the heirs to whom the property is intended to be bequeathed. x x x. The ratio decidendi of these cases seems to be that the attestation clause must contain a statement of the number of sheets or pages composing the will and that if this is missing or is omitted, it will have the effect of invalidating the will if the deficiency cannot be supplied, not by evidence aliunde, but by a consideration or examination of the will itself. But here, the situation is different. While the attestation clause does not state the number of sheets or pages upon which the will is written, the last part of the body of the will contains a statement that it is composed of eight pages, which circumstance in our opinion takes this case out of the rigid rule of construction and places it within the realm of similar cases where a broad and more liberal view has been adopted to prevent the will of the testator from being defeated by purely technical considerations.

x x x

WHEREFORE, the present petition is hereby granted. The orders of the respondent court which denied probate of the will, the motion for reconsideration of the denial of probate, and the motion for appointment of special administrator are set aside. The respondent court is ordered to allow the probate of the will and to conduct further proceedings in accordance with this decision. No pronouncement as to costs.

SO ORDERED.

Melencio-Herrera (Acting Chairman), Plana, Vasquez and Relova, JJ., concur.

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ICASIANO v ICASIANONo. L-18979, 30 June 1964

11 SCRA 422

Article 805 requires that each of the subscribing witnesses should sign each and every page of the will on the left margin. This requirement is, as a rule, mandatory and a failure to comply therewith is a fatal defect. Icasiano holds that the failure of a witness to sign one of the pages of the will through inadvertence or oversight (there being no bad faith or fraudulent intent) can be cured by the presentation of a carbon duplicate of the will which contains all the required signatures. This ruling is based on the principle of liberal interpretation of the statutory requirements for the formal validity of the will, provided that the need to safeguard the genuineness and authenticity of the will is not compromised. It is important, for the proper understanding of this case, to differentiate a duplicate copy of a document from a duplicate-original thereof.

Reyes, J.B.L., J.:

x x x

The evidence presented for the petitioner is to the effect that Josefa Villacorte died in the City of Manila on September 12, 1958; that on June 2, 1956, the late Josefa Villacorte executed a last will and testament in duplicate at the house of her daughter Mrs. Felisa Icasiano at Pedro Guevarra Street, Manila, published before and attested by three instrumental witnesses, namely: attorneys Justo P. Torres, Jr. and Jose V. Natividad, and Mr. Vinicio D. Diy; that the will was acknowledged by the testatrix and by the said three instrumental witnesses on the same date before attorney Jose Oyengco Ong, Notary Public in and for the City of Manila; and that the will was actually prepared by attorney Fermin Samson who was also present during the execution and signing of the decedent's last will and testament, together with former Governor Emilio Rustia of Bulacan, Judge Ramon Icasiano, and a little girl. Of the said three instrumental witnesses to the execution of the decedent's last will and testament, attorney Torres and Natividad were in the Philippines at the time of the hearing, and both testified as to the due execution and authenticity of the said will. So did the Notary Public before whom the will was acknowledged by the testatrix and the attesting witnesses, and also attorney Fermin Samson, who actually prepared the document. The latter also testified upon cross examination that he prepared one original and two copies of Josefa Villacorte's last will and testament at his house in Baliuag, Bulacan, but he brought only one original and one signed copy to Manila, retaining one unsigned copy in Bulacan.

The records show that the original of the will, which was surrendered simultaneously with the filing of the petition and marked as Exhibit "A" consists of five pages, and while signed at the end and in every page, it does not contain the signature of one of the attesting witnesses, Atty. Jose V. Natividad, on page three (3) thereof; but the duplicate copy attached to the amended and supplemental petition and marked as Exhibit "A-1" is signed by the testatrix and her three attesting witnesses in each and every page.

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The testimony presented by the proponents of the will tends to show that the original copy of the will and its duplicate were subscribed at the end and on the left margin of each and every page thereof by the testatrix herself and attested and subscribed by the three mentioned witnesses in the testatrix's presence and that of one another as witnesses (except for the missing signature of attorney Natividad on page three (3) of the original); that pages of the original and duplicate of said will were duly numbered; that the attestation clause thereof contains all the facts required by law to be recited therein and is signed by the aforesaid attesting witnesses; that the will is written in the language known to and spoken by the testatrix; that the attestation clause is in the language also known to and spoken by the witnesses; that the will was executed on one single occasion in duplicate copies; and that both the original and the duplicate copies were duly acknowledged before Notary Public Jose Oyengco of Manila on the same date - June 2, 1956.

Witness Natividad, who testified on his failure to sign page three (3) of the original, admits that he may have lifted two pages instead of one when he signed the same, but affirmed that page three (3) was signed in his presence.

Oppositors-appellants in turn introduced expert testimony to the effect that the signatures of the testatrix in the duplicate (Exhibit"A-1") are not genuine nor were they written or affixed on the same occasion as the original, and further aver that granting that the documents were genuine, they were executed through mistake and with undue influence and pressure because the testatrix was deceived into adopting as her last will and testament the wishes of those who will stand to benefit from the provisions of the will, as may be inferred from the facts and circumstances surrounding the execution of the will and the provisions and dispositions thereof, whereby proponents-appellees stand to profit from properties held by them as attorneys-in-fact of the deceased and not enumerated or mentioned therein, while oppositors-appellants are enjoined not to look for other properties not mentioned in the will, and not to oppose the probate of it, on penalty of forfeiting their shares in the portion of free disposal.

We have examined the record and are satisfied, as the trial court was, that the testatrix signed both original and duplicate copies of the will spontaneously, on the same occasion, in the presence of the three attesting witnesses, the notary public who acknowledged, the will; and Atty. Samson, who actually prepared the documents; that the will and its duplicate were executed in Tagalog, a language known to and spoken by both the testator (sic) and the witnesses, and read to and by the testatrix and Atty. Samson, together, before they were actually signed; that the attestation clause is also in a language known to and spoken by the testatrix and the witnesses. The opinion of experts for oppositors, Mr. Felipe Logan, that the signatures of the testatrix appearing in the duplicate original were not written by the same hand which wrote the signatures in the original will leaves us unconvinced, not merely because it is directly contradicted by expert Martin Ramos for the proponents, but principally because of the paucity of the standards used by him to support the conclusion that the differences between the standard and questioned signatures are beyond the writer's range of normal scriptural variation. The expert has, in fact, used as standards only three other signatures of the

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testatrix besides those affixed to the original of the testament; and we feel that with so few standards the expert's opinion and the signatures in the duplicate could not be those of the testatrix becomes extremely hazardous. This is particularly so since the comparison charts nos. 3 and 4 fail to show convincingly that there are radical differences that would justify the charge of forgery, taking into account the advanced age of the testatrix, the evident variability of her signatures, and the effect of writing fatigue, the duplicate being signed right (sic) the original. These factors were not discussed by the expert.

x x x

Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs are more favored than others is proof of neither. Diversity of apportionment is the usual reason for making a testament; otherwise, the decedent might as well die intestate. The testamentary dispositions that the heirs should not inquire into other property and that they should respect the distribution made in the will, under penalty of forfeiture of their shares in the free part do not suffice to prove fraud or undue influence. They appear motivated by the desire to prevent prolonged litigation which, as shown by ordinary experience, often results in a sizeable portion of the estate being diverted into the hands of non-heirs and speculators. Whether these clauses are valid or not is a matter to be litigated on another occasion. It is also well to note that, as remarked by the Court of Appeals in Sideco v Sideco, 45 O.G. 168, fraud and undue influence are mutually repugnant and exclude each other; their joining as grounds for opposing probate shows absence of definite evidence against the validity of the will.

On the question of law, we hold that the inadvertent failure of one witness to affix his signature to one page of a testament, due to the simultaneous lifting of two pages in the course of signing, is not per se sufficient to justify denial of probate. Impossibility of substitution of this page is assured not only (sic) the fact that the testatrix and two other witnesses did sign the defective page, but also by its bearing the coincident imprint of the seal of the notary public before whom the testament was ratified by the testatrix and all three witnesses. The law should not be so strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she had no control, where the purpose of the law to guarantee the identity of the testament and its component pages is sufficiently attained, no intentional or deliberate deviation existed, and the evidence on record attests to the full observance of the statutory requisites. Otherwise, as stated in vda. de Gil v Murciano, 49 O.G. 1459, 1479 (decision on reconsideration), "witnesses may sabotage the will by muddling or bungling it or the attestation clause."

That the failure of witness Natividad to sign page three (3) was entirely through pure oversight is shown by his own testimony as well as by the duplicate copy of the will, which bears a complete set of signatures in every page. The text of the attestation clause and the acknowledgment before the Notary Public likewise evidence that no one was aware of the defect at the time.

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This would not be the first time that this Court departs from a strict and literal application of the statutory requirements, where the purpose of the law is otherwise satisfied. Thus, despite the literal tenor of the law, this Court has held that a testament, with the only page signed at its foot by the testator and witnesses, but not in the left margin, could nevertheless be probated (Abangan v Abangan, 41 Phil 476); and that despite the requirement for the correlative lettering of the pages of a will, the failure to make the first page either by letters or numbers is not a fatal defect (Lopez v Liboro, 81 Phil 429). These precedents exemplify the Court's policy to require satisfaction of the legal requirements in order to guard against fraud and bad faith but without undue or unnecessary curtailment of the testamentary privilege.

The appellants also argue that since the original of the will is in existence and available, the duplicate is not entitled to probate. Since they opposed the probate of original because it lacked one signature in its third page, it is easily discerned that oppositors-appellants run here into a dilemma; if the original is defective and invalid, then in the law there is no other will but the duly signed carbon duplicate, and the same is probatable. If the original is valid and can be probated, then the objection to the signed duplicate need not be considered, being superfluous and irrelevant. At any rate, said duplicate, Exhibit "A-1", serves to prove that the omission of one signature in the third page of the original testament was inadvertent and not intentional.

x x x

In view of the foregoing, the decision appealed from is affirmed, with cost against appellant.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Paredes, Regala and Makalintal, JJ., concur.

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CAGRO v CAGRONo. L-5826, 29 April 1953

92 Phil 1032

The attestation clause must be signed by the witnesses at the bottom thereof. If the signatures of the attesting witnesses are affixed on the left margin, or in any other place, the attestation clause would be fatally defective, resulting in the nullity of the will. The opinion of the majority of the Court in this case is diametrically opposed to its opinion in the case of Abangan v Abangan. The technical difference between the factual bases of the two cases should be examined. In any event, Cagro is not a unanimous decision.

Paras, C.J.:

The main objection insisted upon by the appellants is that the will is fatally defective, because its attestation clause is not signed by the attesting witnesses. There is no question that the signatures of the three witnesses to the will to not appear at the bottom of the attestation clause, although the page containing the same is signed by the witnesses on the left hand margin.

We are of the opinion that the position taken by the appellants is correct. The attestation clause is "a memorandum of the facts attending the execution of the will" required by law to be made by the attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation clause cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom thereof negatives their participation.

The petitioner and appellee contents that the signatures of the three witnesses on the left-hand margin conform substantially to the law and may be deemed as their signatures to the attestation clause. This is untenable, because said signatures are in compliance with the legal mandate that the will be signed on the left-hand margin of all its pages. If an attestation clause not signed by the three witnesses at the bottom thereof be admitted as sufficient, it would be easy to add such clause to a will on a subsequent occasion and in the absence of the testator and any or all of the witnesses.

Wherefore, the appealed decision is reversed and the probate of the will in question denied. So ordered, with costs against the petitioner and appellee.

Pablo, Bengzon, Montemayor, Jugo and Labrador, JJ., concur.

Tuazon, J., with whom concurs Feria, Jr., dissenting:

I concur with Mr. Justice Bautista's dissenting opinion and may add that the majority decision erroneously sets down a fact that the attestation clause was not signed, when the witnesses' signatures appear on the left margin and the real and only question is whether such signatures are legally sufficient.

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The only answer in our humble opinion, is yes. The law on wills does not provide that the attesting witness should sign the clause at the bottom. In the absence of such provision, there is no reason why signatures on the margin are not good. A letter is not any less the writer's simply because it was signed, not at the conventional place but on the side or on the top.

Bautista Angelo, J., with whom concurs Feria, J., dissenting:

I dissent. In my opinion the will in question has substantially complied with the formalities of the law and, therefore, should be admitted to probate. It appears that the will was signed by the testator and was attested by three instrumental witnesses, not only at the bottom, but also on the left hand margin. The witnesses testified not only that the will was signed by the testator in their presence and in the presence of each other but also that when they did so, the attestation clause was already written thereon. Their testimony has not been contradicted. The only objection set up by the oppositors to the validity of the will is the fact that the signatures of the instrumental witnesses do not appear immediately after the attestation clause.

This objection is too technical to be entertained. In the case of Abangan v Abangan, (40 Phil 476), this court said that when the testamentary dispositions "are wholly written on only one sheet signed at the bottom by the testator and the three witnesses (as the instant case), their signatures on the left margin of said sheet would be completely purposeless." In such a case, the court said, the requirement of the signatures on the left hand margin was not necessary because the purpose of the law - which is to avoid the substitution of any of the sheets of the will, thereby changing the testator's dispositions - has already been accomplished. We may say the same in connection with the will under consideration because while the three instrumental witnesses did not sign immediately after the attestation clause, the fear entertained by the majority that it may have been only added on a subsequent occasion and not at the signing of the will, has been obviated by the uncontradicted testimony of the witnesses to the effect that such attestation clause was already written in the will when the same was signed.

The following observation made by this court in the Abangan case is very fitting:

The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore, the law on this subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the

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testator's last will, must be disregarded.

We should not also overlook the liberal trend of the New Civil Code in the matter of interpretation of wills, the purpose of which, in case of doubt, is to give such interpretation that would have the effect of preventing intestacy (articles 788 and 791, New Civil Code).

I am therefore of the opinion that the will in question should be admitted to probate.

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LOPEZ v LIBORONo. L-1787, 27 August 1948

81 Phil 429

Article 805 requires that every page of the will be numbered correlatively in letters. The failure to affix the page number on the first page is not necessarily a fatal defect. The pagination requirement admits of a liberal interpretation, particularly if the purpose of the law has been satisfied.

In addition, the will need not state that the language used therein is known to the testator. Knowledge by the testator of the language used in the will may be proved by extrinsic evidence, and, may, under certain conditions, even be inferred by the probate court.

Tuazon, J.:

In the Court of First Instance of Batangas the appellant opposed unsuccessfully the probate of what purports to be the last will and testament of Don Sixto Lopez, who died at the age of 83 in Balayan, Batangas on March 3, 1947, almost six months after the document in question was executed. In the court below, the present appellant specified five grounds for his opposition, to wit: (1) that the deceased never executed the alleged will; (2) that his signature appearing in said will was a forgery; (3) that at the time of the execution of the will he was wanting in testamentary as well as mental capacity due to advanced age; (4) that, if he did ever execute said will, it was not executed and attested as required by law, and one of the alleged instrumental witnesses was incapacitated to act as such; and it was procured by duress, influence of fear or threats and undue and improper pressure and influence on the part of the beneficiaries instituted therein, principally the testator's sister, Clemencia Lopez, and the herein proponent, Jose S. Lopez; and (5) that the signature of the testator was procured by fraud or trick.

In this instance only one of these objections is reiterated, formulated in these words: "That the court a quo erred in holding that the document, Exhibit "A", was executed in all particulars as required by law." To this object is added the alleged error of the court "in allowing the petitioner to introduce evidence that Exhibit "A" was written in a language known to the decedent after petitioner rested his case and over the vigorous objection of the oppositor."

The will in question comprises two pages, each of which is written on one side of a separate sheet. The first sheet is not paged either in letters or in Arabic numerals. This, the appellant believes, is a fatal defect.

The purpose of the law in prescribing the paging of wills is to guard against fraud, and to afford means of preventing the substitution or of detecting the loss of any of its pages. (Abangan v Abangan, 40 Phil 476) In the present case, the omission to put a page number on the first sheet, if that be necessary, is supplied by other form of identification more trustworthy than the conventional numeral words or characters. The

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unnumbered page is clearly identified as the first page by the internal sense of its contents considered in relation to the contents of the second page. By their meaning and coherence, the first and second lines on the second page are undeniably a continuation of the last sentence of the testament, before the attestation clause, which starts at the bottom of the preceding page. Furthermore, the unnumbered page contains the caption "TESTAMENTO", the invocation of the Almighty, and a recital that the testator was in full use of his testamentary faculty, - all of which, in the logical order of sequence, precede the direction for the disposition of the maker's property. Again, as page two contains only the two lines above mentioned, the attestation clause, the mark of the testator and the signatures of the witnesses, the other sheet cannot by any possibility be taken for other than page one. Abangan v Abangan, supra, and Fernandez v Vergel de Dios, 46 Phil 922 are decisive of this issue.

x x x

The testator affixed his thumb mark to the instrument instead of signing his name. The reason for this was that the testator was suffering from "partial paralysis." While another in testator's place might have directed someone else to sign for him, as appellant contends should have been done, there is nothing curious or suspicious in the fact that the testator chose the use of mark as the means of authenticating his will. It was a matter of taste or preference. Both ways are good. A statute requiring a will to be "signed" is satisfied is the signature is made by the testator's mark. (de Gala v Gonzales and Ona, 53 Phil 108; 28 R.C.L. 117.)

x x x

Although alien to the second assignment of error, the appellant impugns the will for its silence on the testator's understanding of the language used in the testament. There is no statutory requirement that such knowledge be expressly stated in the will itself. It is a matter that may be established by proof aliunde. This Court so impliedly ruled in Gonzales v Laurel, 46 Phil 781, in which the probate of a will written in Tagalog was ordered although it did not say that the testator knew that idiom. In fact, there was not even extraneous proof on the subject other than the fact that the testator resided in a Tagalog region, from which the court said "a presumption arises that said Maria Tapia knew the Tagalog dialect."

The order of the lower court ordering the probate of the last will and testament of Don Sixto Lopez is affirmed, with costs.

Paras, Acting C.J., Pablo, Perfecto, Bengzon, Briones and Padilla, JJ., concur.

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SAMANIEGO-CELADA v ABENAG. R. No. 145545, 30 June 2008

556 SCRA 569

Samaniego holds that an error in the number of pages of the will as stated in the attestation clause is not material to invalidate the will.

Quisumbing, J.:

x x x

Petitioner Paz Samaniego-Celada was the first cousin of decedent Margarita S. Mayores (Margarita) while respondent was the decedent’s lifelong companion since 1929.

On April 27, 1987, Margarita died single and without any ascending or descending heirs as her parents, grandparents and siblings predeceased her. She was survived by her first cousins Catalina Samaniego-Bombay, Manuelita Samaniego-Sajonia, Feliza Samaniego, and petitioner.

Before her death, Margarita executed a Last Will and Testament on February 2, 1987 where she bequeathed one-half of her undivided share of a real property located at Singalong x x x to respondent, Norma A. Pahingalo, and Florentino M. Abena in equal shares or one-third portion each. She likewise bequeathed one-half of her undivided share of a real property located at San Antonio Village, Makati x x x to respondent, Isabelo M. Abena and Amanda M. Abena in equal shares or one-third portion each. Margarita also left all her personal properties to respondent who she likewise designated as sole executor of her will.

On August 11, 1987, petitioner filed a petition for letter of administration of the estate of Margarita before the RTC of Makati. x x x.

On March 2, 1993, the RTC rendered a decision declaring the last will and testament of Margarita probated and respondent as the executor of the will. x x x.

Petitioner appealed the RTC decision to the Court of Appeals. But the Court of Appeals, in a decision dated October 13, 2000, affirmed in toto the RTC ruling. x x x.

x x x

Briefly stated, the issues are (1) whether the Court of Appeals erred in not declaring the will invalid for failure to comply with the formalities required by law x x x.

After careful consideration of the parties’ contentions, we rule in favor of

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respondent.x x x

Nonetheless, a review of the findings of the RTC as upheld by the Court of Appeals, reveal that petitioner’s arguments lack basis. The RTC correctly held:

“x x x

Anent the contestant’s submission that the will is fatally defective for the reason that its attestation clause states that the will is composed of three (3) pages while in truth and in fact, the will consists of two (2) pages only because the attestation clause is not a part of the notarial will, the same is not accurate. While it is true that the attestation clause is not a part of the will, the court, after examining the totality of the will, is of the considered opinion that error in the number of pages of the will as stated in the attestation clause is not material to invalidate the subject will. It must be noted that the subject instrument is consecutively lettered with pages A, B, and C which is a sufficient safeguard from the possibility of an omission of some of the pages. The error must have been brought about by the honest belief that the will is the whole instrument consisting of three (3) pages inclusive of the attestation clause and the acknowledgment. The position of the court is in consonance with the “doctrine of liberal interpretation” enunciated in Article 809 of the Civil Code which reads:

“In the absence of bad faith, forgery or fraud, or undue [and] improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of Article 805.”

x x x

Thus, we find no reason to disturb the abovementioned findings of the RTC. Since, petitioner and her siblings are not compulsory heirs of the decedent under Article 887 of the Civil Code and as the decedent validly disposed of her properties in a will duly executed and probated, petitioner has no legal right to claim any part of the decedent’s estate.

WHEREFORE, the petition is DENIED. The assailed Decision dated October 13, 2000 of the Court of Appeals in CA-G.R. CV No. 41756 is AFFIRMED.

SO ORDERED.

Carpio-Morales, Tiñga, Velasco, Jr., and Brion, JJ., concur.

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TESTATE ESTATE OF THE LATE ALIPIO ABADA v ABAJAG.R. No. 147145, 31 January 2005

450 SCRA 264

Carpio, J.:

x x x

The Antecedent Facts

Abada died sometime in May 1940. His widow Paula Toray (“Toray”) died sometime in September 1943. Both died without legitimate children.

On 13 September 1969, Alipio C. Abaja (“Alipio”) filed with the Court of First Instance of Negros Occidental (now RTC-Kabankalan) a petition, docketed as SP. No. 070 (313-8668), for the probate of the last will and testament (“will”) of Abada. Abada allegedly named as his testamentary heirs his natural children Eulogio Abaja (“Eulogio”) and Rosario Cordova. Alipio is the son of Eulogio.

Nicanor Caponong (“Caponong”) opposed the petition on the ground that Abada left no will when he died in 1940. Caponong further alleged that the will, if Abada really executed it, should be disallowed for the following reasons: (1) it was not executed and attested as required by law; (2) it was not intended as the last will of the testator; and (3) it was procured by undue and improper pressure and influence on the part of the beneficiaries. Citing the same grounds invoked by Caponong, the alleged intestate heirs of Abada, namely, Joel, Julian, Paz, Evangeline, Geronimo, Humberto, Teodora and Elena Abada (“Joel Abada, et. al.”), and Levi, Leandro, Antonio, Florian, Hernani and Carmela Tronco (“Levi Tronco, et al.”), also opposed the petition. The oppositors are the nephews, nieces and grandchildren of Abada and Toray.

On 13 September 1968, Alipio filed another petition before the RTC-Kabankalan x x x for the probate of the last will and testament of Toray. Caponong, Joel Abada, et al. and Levi Tronco, et al. opposed the petition on the same grounds they cited in SP. No. 070 (313-8668).

On 20 September 1968, Caponong filed a petition before the RTC-Kabankalan, docketed as SP No. 069 (309), praying for the issuance of letters of administration of the intestate estate of Abada and Toray,

In an Order dated 14 August 1981, the RTC-Kabankalan admitted to probate the will of Toray. Since the oppositors did not file any motion for reconsideration, the order allowing the probate of Toray’s will became final and executory.

In an order dated 23 November 1990, the RTC-Kabankalan designated Belinda Caponong-Noble (“Caponong-Noble”) Special Administratrix of the estate of Abada and Toray. Caponong-Noble moved for the dismissal of the petition for probate of the will of Abada. The RTC-Kabankalan denied the motion in an Order dated 20

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August 1991.

Sometime in 1993, during the proceedings, Presiding Judge Rodolfo S. Layumas discovered that in an Order dated 16 March 1992, former Presiding Judge Edgardo Catilo had already submitted the case for decision. Thus, the RTC-Kabankalan rendered a resolution dated 22 June 1994 as follows:

“There having been substantial notice to the heirs as required by law; that there is substantial compliance with the formalities of a Will as the law directs and that the petitioner through his testimony and the deposition of Felix Gallinero was able to establish the regularity of the execution of the said Will and further, there being no evidence of bad faith and fraud, or substitution of the said Will, the Last Will and Testament of Alipio Abada dated June 4, 1932 is admitted and allowed probate.

As prayed for by counsel, Notel Abbellar is appointed administrator of the estate of Paulo Toray who shall discharge his duties as such after letters of administration shall have been issued in his favor and after taking his oath and filing a bond in the amount of Ten Thousand (P10,000.00) Pesos.

Mrs. Belinda C. Noble, the present administratrix of the estate of Alipio Abada shall continue discharging her duties as such until further orders from this Court.

SO ORDERED.”

The RTC-Kabankalan ruled on the only issue raised by the oppositors in their motion to dismiss the petition for probate, that is, whether the will of Abada has an attestation clause as required by law. The RTC-Kabankalan further held that the failure of the oppositors to raise any other matter forecloses all other issues.

Not satisfied with the Resolution, Caponong-Noble filed a notice of appeal.

In a Decision promulgated on 12 January 2001, the Court of Appeals affirmed the Resolution of the RTC-Kabankalan. The appellate court found that the RTC-Kabankalan properly admitted to probate the will of Abada.

Hence the present recourse by Caponong-Noble.

The Issues

The petition raises the following issues:

1. what laws apply to the probate of the last will of Abada;

2. Whether the will of Abada requires acknowledgment before a notary public;

3. Whether the will must expressly state that it is written in a language or dialect known to the testator;

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4. Whether the will of Abada has an attestation clause and if so, whether the attestation clause complies with the requirements of the applicable laws;

5. Whether Caponong-Noble is precluded from raising the issue of whether the will of Abada is written in a language known to Abada;

6. Whether evidence aliunde may be resorted to in the probate of the will of Abada.

The Ruling of the Court

The Court of Appeals did not err in sustaining the RTC-Kabankalan in admitting to probate the will of Abada.

Abada executed his will on 4 June 1932. The laws in force at that time are the Civil Code of 1889 or the Old Civil Code, and Act No. 190 or the Code of Civil Procedure which governed the execution of wills before the enactment of the New Civil Code.

The matter in dispute in the present case is the attestation clause in the will of Abada. Section 618 of the Code of Civil Procedure, as amended by Act No. 2645, governs the form of the attestation clause of Abada’s will. Section 618 of the Code of Civil Procedure, as amended, provides:

SEC 618. Requisites of will. – No will, except as provided in the preceding section, shall be valid to pass any estate, real or person, nor charge or affect the same, unless it be written in the language or dialect known by the testator and signed by him or by the testator’s name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of each other. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, on the left margin, and said pages shall be numbered correlatively in letters placed on the upper part of each sheet. The attestation shall state the number of sheets or pages used, upon which the will is written, and the fact that the testator signed the will and every page thereof, or cause some other person to write his name, under his express direction and in the presence of the three witnesses, and the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of each other.

Requisites of a Will under the Code of Civil Procedure

Under Section 618 of the Code of Civil Procedure, the requisites of a will are the following:

(1) The will must be written in the language or dialect known by the testator;

(2) The will must be signed by the testator, or by the testator’s name written by some

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other person in his presence and by his express direction;(3) The will must be attested and subscribed by three or more credible witnesses in the

presence of the testator and of each other;

(4) The testator or the person requested by him to write his name and the instrumental witnesses of the will must sign each and every page thereof on the left margin;

(5) The pages of the will must be numbered correlatively in letters placed on the upper part of each sheet;

(6) The attestation shall state the number of sheets or pages used, upon which the will is written, and the fact that the testator signed the will and every page of the will, or caused some other person to write his name, under his express direction, in the presence of three witnesses, and the witnesses witnessed and signed the will and all the pages of the will in the presence of the testator and of each other.

Caponong-Noble asserts that the will of Abada does not indicate that it is written in a language or dialect known to the testator. Further, she maintains that the will is not acknowledged before a notary public. She cites in particular Articles 804 and 806 of the Old Civil Code, thus:

Art. 804. Every will must be in writing and executed in a language or dialect known to the testator.

Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses x x x.”

Caponong-Noble actually cited Articles 804 and 806 of the New Civil Code. Article 804 of the Old Civil Code is about the rights and obligations of administrators of the property of an absentee, while Article 806 of the Old Civil Code defines a legitime.

Articles 804 and 806 of the New Civil Code are new provisions. Article 804 of the New Civil Code is taken from Section 618 of the Code of Civil Procedure. Article 806 of the New Civil Code is taken from Article 685 of the Old Civil Code which provides:

Art. 685. The Notary and the two of the witnesses who authenticated with will must be acquainted with the testator, or, should they not know him, he shall be identified by two witnesses who are acquainted with him and are known to the notary and to the attesting witnesses. The notary and the witnesses shall also endeavor to assure themselves that the testator has, to their judgment, the legal, capacity required to make a will.

Witnesses authenticating a will without the attendance of a notary, in cases falling under Articles 700 and 701, are also required to know the testator.

However, the Code of Civil Procedure repealed Article 685 of the Old Civil Code. Under the Code of Civil Procedure, the intervention of a notary is not necessary in the execution of any will. Therefore, Abada’s will does not require acknowledgement before a notary public.

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Caponong-Noble points out that nowhere in the will can one discern that Abada knew the Spanish language. She alleges that such defect is fatal and must result in the disallowance of the will. On this issue, the Court of Appeals held that the matter was not raised in the motion to dismiss, and that it is now too late to raise the issue on appeal. We agree with Caponong-Noble that the doctrine of estoppel does not apply in probate proceedings. In addition, the language used in the will is part of the requisites under Art, 615 of the Code of Civil Procedure and the Court deems it proper to pass upon this issue.

Nevertheless, Caponong-Noble’s contention must still fail. There is no statutory requirement to state in the will itself that the testator knew the language or dialect used in the will. This is a matter that a party may establish by proof aliunde. Caponong-Noble further argues that Alipio, in his testimony, has failed, among others, to show that Abada knew or understood the contents of the will and the Spanish language used in the will. However, Alipio testified that Abada used to gather Spanish-speaking people in their place. In these gatherings, Abada and his companions would talk in the Spanish language. This sufficiently proves that Abada speaks the Spanish language.

The Attestation Clause of Abada’s Will

A scrutiny of Abada’s will shows that it has an attestation clause. The attestation clause of Abada’s will reads:

“Suscrito y declarado por el testador Alipio Abada como su ultima voluntad y testamento en presencia de nosotros, habiendo tambien el testador firmado en nuestra presencia en el margen izquerdo de todas y cada una de las hojas del mismo. Y en testimonio de ello, cada una de nosotros lo firmamos en presencia de nosotros y del testador al pie de este documento y en el margen izqierdo de todas y cada una de las dos hojas de que esta compuesto el mismo, las cuales estan paginadas correlativamente con las letras “UNO” y “DOS” en la parte superior de la casilla.”

Caponog-Noble proceeds to point out several defects in the attestation clause. Caponong-Noble alleges that the attestation clause fails to state the number of pages on which the will is written.

The allegation has no merit. The phrase “en el margen izquierdo de todas y cada una de las dos hojas de que esto compuesto el mismo” which means “in the left margin of each and every one of the two pages consisting of the same” shows that the will consists of two pages. The pages are numbered correlatively with the letters “ONE” and “TWO” as can be gleaned from the phrase “las cuales estan paginadas correletivamente con las letras “UNO” y “DOS.”

Caponong-Noble further alleges that the attestation clause fails to state expressly that the testator signed the will and its every page in the presence of the three witnesses. She then faults the Court of Appeals for applying to the present case the rule on substantial compliance found in Article 809 of the New Civil Code.

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The first sentence of the attestation clause reads: “Suscrito y declarado por el testador Alipio Abada como su ultima voluntad y testamento en presencia de nosotros, habiendo tambien el testador firmado en nuestra presencia en el margen izqueirdo de todas y cada una de las hojas del mismo.” The English translation is: “Subscribed and professed by the testator Alipio Abada as his last will and testament in our presence, the testator having also signed it in our presence on the left margin of each and every one of the pages of the same.” The attestation clause clearly states that Abada signed the will and its every page in the presence of the witnesses,

However, Caponong-Noble is correct in saying that the attestation clause does not indicate the number of witnesses. On this point, the Court agrees with the appellate court in applying the rule on substantial compliance in determining the number of witnesses. While the attestation clause does not state the number of witnesses, a close inspection of the will shows that three witnesses signed it.

This Court has applied the rule on substantial compliance even before the effectivity of the New Civil Code. In Dichoso de Ticson v De Gorostiza, the Court recognized that there are two divergent tendencies in the law on wills, one being based on strict construction and the other on liberal construction. In Dischoso, the Court noted that Abangan v Abangan, the basic case on the liberal construction, is cited with approval in later decisions of the Court.

In Adeva vda. de Leynez v Leynez, the petitioner, arguing for liberal construction of applicable law, enumerated a long line of cases to support her argument while the respondent, contending that the rule on strict construction should apply, also cited a long series of cases to support his view. The Court, after examining the cases invoked by the parties, held:

“x x x It is, of course, not possible to lay down a general rule, rigid and inflexible, which would be applicable to all cases. More than anything else, the facts and circumstances of record are to be considered in the application of any given rule. If the surrounding circumstances point to a regular execution of the will, and the instrument appears to have been executed substantially in accordance with the requirements of the law, the inclination should, in the absence of any suggestion of bad faith, forgery or fraud, lean towards its admission to probate, although the document may suffer from come imperfection of language, or other non-essential defect. x x x.

An attestation clause is made for the purpose or preserving, in permanent form, a record of the facts attending the execution of the will, so that in case of failure of the memory of the subscribing witnesses, or other casualty, they may still be proved. A will therefore should not be rejected where its attestation clause serves the purpose of the law.”

We rule to apply the liberal construction in the probate of Abada’s will. Abada’s will clearly shows four signatures: that of Abada and of three other persons. It is reasonable to conclude that there are three witnesses to the will. The question on the number of witnesses is answered by an examination of the will itself and without the

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need for presentation of evidence aliunde. The Court explained the extent and limits of the rule on liberal construction, thus:

[T]he so called liberal rule does not offer any puzzle or difficulty, nor does it open the door to serious consequences. The later decisions do tell us when and where to stop; they draw the dividing line with precision. They do not allow evidence aliunde to fill a void in any part of the document or supply missing details that should appear in the will itself. They only permit a probe into the will, an exploration within its confines, to ascertain its meaning or to determine the existence or absence of the requisite formalities of law. This clear, sharp limitation eliminates uncertainty and ought to banish any fear of dire results.

The phrase “en presencia de nosotros” or “in our presence” coupled with the signatures appearing on the will itself and after the attestation clause could only mean that: (1) Abada subscribed to and professed before the three witnesses that the document was his last will, and (2) Abada signed the will and the left margin of each page of the will in the presence of these three witnesses.

Finally Caponong-Noble alleges that the attestation clause does not expressly state the circumstances that the witnesses witnessed and signed the will and all its pages in the presence of the testator and of each other. This Court has ruled:

Precision of language in the drafting of an attestation clause is desirable. However, it is not imperative that a parrot-like copy of the words of the statute be made. It is sufficient if from the language employed it can reasonably be deduced that the attestation clause fulfills what the law expects of it.

The last part of the attestation clause states “en testimonio de ello, cada uno de nosotros lo firmamos en presencia de nosotros y del testador.” In English, this means “in its witness, every one of us also signed in our presence and of the testator.” This clearly shows that the attesting witnesses witnessed the signing of the will of the testator, and that each witness signed the will in the presence of one another and of the testator.

WHEREFORE, we AFFIRM the Decision of the Court of Appeals of 12 January 2001 in CA-G.R. CV No. 46744.

SO ORDERED.

Davide, Jr. (C.J., Chairman), Quisumbing, Ynares-Santiago and Azcuna, JJ., concur.

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AZUELA v COURT OF APPEALSG.R. No. 122880, 12 April 2006

487 SCRA 119

Of note is the decision of the RTC which admitted the will to probate notwithstanding the defects thereof (no signature of witnesses at the bottom of the attestation clause, no signature of the testator on the left margin of the second page of the will, the failure of the attestation clause to state the number of pages used upon which the will was written, and the lack of acknowledgment). As to the missing signature of the witnesses at the bottom of the attestation clause, the RTC ignore the ruling in Cagro v Cagro (although arguably the ruling in Cagro has a very strong dissenting opinion). As regards the missing number of pages in the attestation clause the RTC invoked the doctrine of liberal interpretation but conveniently ignored the conditions laid down in the case of Rodelas. As regards the missing acknowledgement, the RTC ignored the ruling in Carcia v Gatchalian. It can well be said that the decision of the RTC is “one for the books.”

This case also highlights the fundamental difference between a jurat and an acknowledgment, and based on the distinction, the Court held that a notarial will that is not acknowledged before a notary public is void, even if it was sworn to before a notary public.

Tiñga, J.:

The core of this petition is a highly defective notarial will purportedly executed by Eugenia E. Igsolo (decedent), who died on 16 December 1982 at the age of 80. In refusing to give legal recognition to the due execution of this document, the Court is provided the opportunity to assert a few important doctrinal rules in the execution of notarial wills, all self-evident in view of Articles 805 and 806 of the Civil Code.

A will whose attestation clause does not contain the number of pages on which the will is written is fatally defective. A will whose attestation clause is not signed by the instrumental witnesses is fatally defective. And perhaps most importantly, a will which does not contain an acknowledgment, but a mere jurat, is fatally defective. Any one of these defects is sufficient to deny probate. A notarial will with all three defects is just aching for judicial rejection.

There is a distinct and consequential reason the Civil Code provides a comprehensive catalog of imperatives for the proper execution of a notarial will. Full and faithful compliance with all the detailed requisites under Article 805 of the Code leave little room for doubt as to the validity in the due execution of the notarial will. Article 806 likewise imposes another safeguard to the validity of notarial wills – that they be acknowledged before a notary public by the testator and the witnesses. A notarial will executed with indifference to these two codal provisions opens itself to nagging questions as to its legitimacy.

The case stems from a petition for probated filed x x x with the Regional Trial

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Court (RTC) of Manila. The petition filed by petitioner Felix Azuela sought to admit to probate the notarial will of Eugenia E. Igsolo, which was notarized on 10 June 1981. Petitioner is the son of the cousin of the decedent.

The will, consisting of two(2) pages and written in the vernacular Pilipino, read in full:

HILING HABILIN NI EUGENIA E. IGSOLO

SA NGALAN NG MAYKAPAL, AMEN.

AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila, pitongput siyam (79) na gulang, nasa hustong pag-iisip, pag-unawa at memoria ay nag-hahayad na ito na ang aking huling habilin at testamento, at binabali wala ko lahat ang naunang ginawang habilin o testamento.

Una – Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayon sa kaugalian at patakaran ng simbahang katoliko at ang taga-pag-ingat (Executor) ng habiling ito ay magtatayo ng bantayog upang silbing ala-ala sa akin ng aking pamilya at kaibigan;

Pangalawa – Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking pamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa mahabang panahon, yaong mga bahay na nakatirik sa lote numero 28, block 24 at nakapangalan sa Pechaten Kroporasyon, gayon din ibinibigay ko ang lahat ng karapatan sa bahay na nakatirik sa inoopahan kong lote, numero 43, block 24 na pag-aari ng Pechaten Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at lupa na nasa 500 San Diego St., Lot 42. Block 24 Sampaloc, Manila kay Felix Azuela at ang pagkakaloob kong ito at walang pasubali’t at kondiciones;

Pangatlo - Na ninunumbrahan ko si VART PAGUE na siyang magpapatupad ng huling habiling ito at kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng piyansiya.

Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981.

(Sgd.)EUGENIA E. IGSOLO (Tagapagmana)

PATUNAY NG MGA SAKSI

Ang kasulatang ito, na bunubuo ng __ dahon pati ang huling dahong ito, na ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng Hunyo 1981, at nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawa’t isang dahon, sa harap ng lahat at bawa’t isa sa amin, at kami namang mga saksi at lumadga sa harap ng nasabing tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawa’t dahon ng kasulatang ito.

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EUGENIA E. IGSOLOaddress: 500 San Diego St.Sampaloc, Manila, Res. Cert. No. A-7717-37Issued at Manila on March 10, 1981

QUIRINO AGRAVAaddress: 1228-int. 3,m KahilumPandacan, Manila Res. Cert. No. A-458365Issued at Manila on Jan. 21, 1981

LAMBERTO C. LEANOaddress: Avenue 2, Block 7,Lot 61, San Gabriel, G.M.A, Cavite, Res.Cert. No. A-7668277 issued at Carmona, CaviteOn Feb 7, 1981

JUANITO ESTRERAaddress: City Court Compound,City of Manila Res. Cert No. A574829Issued at Manila on March 2, 1981

Nilagdaan ko at ninotario ko ngayon 10 ng Hunyo 10, 1981 dito sa Lungsod ng Maynila

(Sgd.)PETRONIO Y. BAUTISTANotario PublicoUntil Dec. 31, 1981PTR-152041 – 1/2/81, ManilaTAN # 1437-977-8

Doc. No. 1232;Page No. 86;Book No. 43;Series of 1981.

The three named witnesses to the will affixed their signatures on the left-hand margin of both pages of the will, but not at the bottom of the attestation clause.

The probate petition adverted to only two (2) heirs, legatees and devisees of the decedent, namely: petitioner himself, and one Irene Lynn Igsolo, who was alleged to have resided abroad. Petitioner prayed that the will be allowed, and that letters testamentary be issued to the designated executor Vart Prague.

The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented herself as the attorney-in-fact of “the 12 legitimate heirs” of the decedent. Geralda Castillo claimed that the will is a forgery, and that the true purpose of its emergence was so it could be utilized as a defense in several court cases filed by oppositor against petitioner, particularly for forcible entry and usurpation of real property, all centering on petitioner’s right to occupy the properties of the decedent. It

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also asserted that contrary to the representations of petitioner, the decedent was actually survived by 12 legitimate heirs, namely her grandchildren, who were then residing abroad. Per records, it was subsequently alleged that decedent was the widow of Bonifacio Igsolo, who died in 1965, and the mother of a legitimate child, Asuncion E. Igsolo, who predeceased her mother by three (3) months.

Oppositor Geralda Castillo also argued that the will was not executed and attested to in accordance with law. She pointed out that decedents signature did not appear on the second page of the will, and the will was not properly acknowledged. These twin arguments are among the central matters to this petition.

After due trial, the RTC admitted the will to probate, in an Order dated 10 August 1982. The RTC favorably took into account the testimony of the three (3) witnesses to the will, Quirino Agrava, Lamberto Leano and Juanito Estrera. The RTC also called to fore “the modern tendency in respect to the formalities in the execution of a will x x x with the end in view of giving the testator more freedom of expressing his last wishes; and from this perspective, rebutted oppositor’s arguments that the will was not properly executed and attested to in accordance with law.

“After a careful examination of the will and consideration of the testimonies of the subscribing and attesting witnesses, and having in mind the modern tendency in respect to the formalities in the execution of a will, i.e., the liberalization of the interpretation of the law on the formal requirements of a will with the end in view of giving the testator more freedom in expressing his last wishes, this Court is persuaded to rule that the will in question is authentic and had been executed by the testatrix in accordance with law.

On the issue of lack of acknowledgment, this Court has noted that at the end of the will after the signature of the testatrix, the following is made under the sub-title “Patunay Ng Mga Saksi”:

x x x

The aforequoted declaration comprises the attestation clause and the acknowledgment and is considered by this Court as a substantial compliance with the requirements of the law.

On the oppositor’s contention that the attestation clause was not signed by the subscribing witnesses at the bottom thereof, this Court is of the view that the signing by the subscribing witnesses on the left margin of the second page of the will containing the attestation clause and acknowledgment, instead of at the bottom thereof, substantially satisfied the purpose of identification and attestation of the will.

With regard to the oppositor’s argument that the will was not numbered correlatively in letters placed on the upper part of each page and that the attestation did not state the number of pages thereof, it is worthy to note that the will is composed of only two pages. The first page contains the entire text of the testamentary dispositions, and the second page contains the last portion of the attestation clause and acknowledgment. Such being so, the defects are not

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of a serious nature as to invalidate the will. For the same reason, the failure of the testatrix to affix her signature on the left margin of the second page, which contains only the last portion of the attestation clause and acknowledgment is not a fatal defect.

As regards the oppositor’s assertion that the signature of the testatrix on the will is a forgery, the testimonies of the three subscribing witnesses to the will are convincing enough to establish the genuineness of the signature of the testatrix and the due execution of the will.

x x x In a Decision dated 17 August 1995, the Court of Appeals reversed the trial court and ordered the dismissal of the petition for probate. The Court of Appeals noted that the attestation clause failed to state the number of pages used in the will, thus rendering the will void and undeserving of probate.

Hence the present petition.

Petitioner argues that the requirement under Article 805 of the Civil Code that ‘the number of pages used in a notarial will be stated in the attestation clause” is merely directory, rather than mandatory, and this susceptible to what he termed as “the substantial compliance rule.”

x x x

The appellate court, in its Decision, considered only one defect, the failure of the attestation clause to state the number of pages of the will. But an examination of the will itself reveals several more deficiencies.

As admitted by petitioner himself, the attestation clause fails to state the number of pages of the will. There was an incomplete attempt to comply with this requisite, as space having been allotted for the insertion of the number of pages in the attestation clause. Yet the blank was never filled in; hence, the requisite was left incomplied with.

The Court of Appeals pounced on this defect in reversing the trial court, citing in the process Uy Coque v Navas L. Sioca and In re: Will of Andrada. In Uy Coque, the Court noted that among the defects of the will in question was the failure of the attestation clause to state the number of pages contained in the will. In ruling that the will could not be admitted to probate, the Court made the following consideration which remains highly relevant to this day: “The purpose of requiring the number of sheets to be stated in the attestation clause is obvious: the document might easily be so prepared that the removal of a sheet would completely change the testamentary dispositions of the will and in the absence of a statement of the total number of sheets such removal might be effected by taking out the sheet and changing the numbers at the top of the following sheets or pages. If, on the other hand, the total number of sheets is stated in the attestation clause the falsification of the document will involve the inserting of new pages and the forging of the signatures of the testator and witnesses in the margin, a matter attended with much greater difficulty.”

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The case of In Re Will of Andrada concerned a will the attestation clause of which failed to state the number of sheets or pages used. This consideration alone was sufficient for the Court to declare “unanim[ity] upon the point that the defect pointed out in the attesting clause is fatal.” It was further observed that “it cannot be belied that the x x x requirement affords additional security against the danger that the will may be tampered with; and as the Legislature has seen fit to prescribe this requirement, it must be considered material.”

Against these cited cases, petitioner cites Singson v Florentino and Taboada v Hon. Rosal, wherein the Court allowed probate to the wills concerned therein despite the fact that the attestation clause did not state the number of pages of the will. Yet the appellate court itself considered the import of these two cases, and made the following distinction which petitioner is unable to rebut, and which we adopt with approval:

Even a cursory examination of the will (Exhibit “D”), will readily show that the attestation clause does not state the number of pages used upon which the will is written. Hence the Will is void and undeserving of probate.

We are not impervious of the Decisions of the Supreme court in” Manuel Singson vesus Emilia Florentino, et al., 92 Phil 161 and Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA 195,” to the effect that a will may still be valid even if the attestation clause does not contain the number of pages used upon which the will is written. However, the Decisions of the Supreme Court are not applicable in the aforementioned appeal at bench. This is so because, in the case of Manuel Singson versus Emilia Florentino, et a., supra,” although the attestation in the subject will did not state the number of pages used in the will, however, the same was found in the last part of the body of the will:

x x x

The ratio decidendi of these cases seems to be that the attestation clause must contain a statement of the number of sheets or pages composing the will and that if this is missing or is omitted, it will have the effect of invalidating the will if the deficiency cannot be supplied, not by evidence aliunde, but by a consideration or examination of the will itself. But here, the situation is different. While the attestation clause does not state the number of sheets or pages upon which the will is written, however, the last part of the body of the will contains a statement that it is composed of eight pages, which circumstance in our opinion takes thus case out of the rigid rule of construction and places it within the realm of similar cases where a broad and more liberal view has been adopted to prevent the will of the testator from being defeated by pure technical considerations.”

In Apolonio Taboada versus Hon. Avelino Rosal, et al., supra, the notarial acknowledgment in the Will states the number of pages used in the:

x x x

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We have examined the will in question and noticed that the attestation clause failed to state the number of pages used in writing the will. This would have been a fatal defect were it not for the fact that, in this case, it is discernible from the entire will that it is really and actually composed of only two pages duly signed by the testatrix and her instrumental witnesses. x x x The acknowledgment itself states that ‘this Last Will and Testament consists of two pates, including this page,”

However, in the appeal at bench, the number of pages used in the will is not stated in any part of the will. The will does not even contain any notarial acknowledgment wherein the number of pages of the will should be stated.

` Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code in 1950, at a time when the statutory provision governing the formal requirements of wills was Section 618 of the Code of Civil Procedure. Reliance on these cases remains apropos, considering that the requirement that the attestation state the number of pages of the will is extant from Section 618. However, the enactment of the Civil code in 1950 did put in force a rule of interpretation of the requirements of wills, at least insofar as the attestation is concerned, that may vary from the philosophy that governed these two cases. Article 809 of the Civil Code states: x x x.

Caneda v Court of Appeals features an extensive discussion made by Justice Regalado, speaking for the Court on the conflicting views on the manner of interpretation of the legal formalities required in the execution of the attestation clause in wills. x x x However, the Code Commission opted to recommend a more liberal construction through the “substantial compliance rule” under Artifle 809. A cautionary note was struck though Justice J.B.L. Reyes as to how Article 809 should be applied:

“x x x The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself; whether all the pages are consecutively numbered; whether the signatures appear in each and every page; whether the subscribing witnesses are three or the will was notarized. All these are facts that the will itself can reveal, and defects or even omissions concerning them in the attestation clause can be safely disregarded. But the total number of pages, and whether all persons required to sign did so in the presence of each other must substantially appear in the attestation clause, being the only check against perjury in the probate proceedings.”

At the same time, Article 809 should not deviate from the need to comply with the formal requirements as enumerated under Article 805. Whatever the inclinations of the members of the Code Commission in incorporating Article 805, the fact remains that they saw fit to prescribe substantially the same formal requisites as enumerated in Section 618 of the Code of Civil Procedure, convinced that these remained effective safeguards against the forgery or intercalation of notarial wills. Compliance with these requirements, however, picayune in impression, affords the public a high

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degree of comfort that the testator himself or herself had decided to convey property post mortem in the manner established in the will. The transcendent legislative intent, even as expressed in the cited comments of the Code Commission, if for the fruition of the testator’s incontestable desires, and not for the indulgent admission of wills to probate.

The Court could thus end here and affirm the Court of Appeals. However, an examination of the will itself reveals a couple of even more critical defects that should necessarily lead to its rejection.

For one, the attestation clause was not signed by the instrumental witnesses. While the signatures of the instrumental witnesses appear on the left-hand margin of the will, they do not appear at the bottom of the attestation clause which after all consists of their averments before the notary public.

x x x

The Court today reiterates the continued efficacy of Cagro. x x x The signatures on the left-hand corner of every page signify, among others, that the witnesses are aware that the page they are signing forms part of the will. On the other hand, the signatures to the attestation clause establish that the witnesses are referring to the statements contained in the attestation clause itself. Indeed, the attestation clause is separate and apart from the disposition of the will. An unsigned attestation clause results in an unattested will. Even if the instrumental witnesses signed the left-hand margin of the page containing the unsigned attestation clause, such signature cannot demonstrate these witnesses’ undertakings in the clause, since the signatures that do appear on the page were directed towards a wholly different avowal.

The Court may be more charitably disposed had the witnesses in this case signed the attestation clause itself, but not the left-hand margin of the page containing such clause. Without diminishing the value of the instrumental witnesses’ signatures on each and every page, the fact must be noted that it is the attestation clause which contains the utterances reduced into writing of the testamentary witnesses themselves. It is the witnesses, and not the testator, who are required under Article 805 to state the number of pages used upon which the will is written; the fact that the testator had signed the will and every page thereof; and that they witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. The only proof in the will that the witnesses have stated these elemental facts would be their signatures on the attestation clause.

x x x

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Yet, there is another fatal defect to the will on which the denial of this petition should also hinge. The requirement under Article 806 that “every will must be acknowledged before a notary public by the testator and the witnesses has also not been complied with. x x x.

In lien of an acknowledgment, the notary public, Petronio Y. Bautista, wrote “Nilagdaan ko at ninotario ko ngayon 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila.” By no manner of contemplation can these words be construed as an acknowledgment. An acknowledgment is the act of one who has executed a deed in going before some competent officer or court and declaring it to be his act or deed. It involves an extra step undertaken whereby by the signor actually declares to the notary that the executor of a document has attested to the notary that the same is his/her own free act and deed.

It might be possible to construe the averment as a jurat, even though it does not hew to the usual language thereof. A jurat is that part of an affidavit where the notary certifies that before him/her, the document was subscribed and sworn to by the executor. x x x.

Yet even if we consider what was affixed by the notary public as a jurat, the will would nonetheless remain invalid, as the express requirement in Article 806 is that the will be “acknowledged” and not merely subscribed and sworn to. The will does not present any textual proof, much less one under oath, that the decedent and the instrumental witnesses executed or signed the will as their own free act or deed. The acknowledgment made in a will provides for another all-important legal safeguard against spurious wills or those made beyond the free consent of the testator. The acknowledgment coerces the testator and the instrumental witnesses to declare before an officer of the law that they had executed and subscribed to the will as their own free act or deed. Such declaration is under oath and under pain of perjury, thus allowing for the criminal prosecution of persons to participate in the execution of spurious wills, or those executed without the free consent of the testator. It also provides a further degree of assurance that the testator is of a certain mindset in making the testamentary dispositions to those persons he/she had designated in the will.

It may not have been said before, but we can assert the rule, self-evident as it is under Article 806. A notarial will that is not acknowledged before a notary public by the testator and the witnesses is fatally defective, even if it is subscribed and sworn to before a notary public.

x x x

All told, the string of mortal defects which the will in question suffers

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from makes the probate denial inexorable.

WHEREFORE, the petition is DENIED. Costs against petitioner.

SO ORDERED.

Quisumbing (Chairperson), Carpio and Carpio-Morales, concur.

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VDA. DE RAMOS v COURT OF APPEALSNo. L-40804, 31 January 1978

81 SCRA 393

The law requires at least three attesting witnesses to a notarial will. The witnesses shall be called upon, during probate, to recount the incidents which occurred thereat. To a large extent, admission to or denial of probate depends on the testimony of these instrumental witnesses. However, if contrary to expectation, these witnesses, or some of them, should testify against the formal validity of the will, the proponent of the will may use other evidence, direct or circumstantial, to establish compliance with the formalities prescribed by law. A will is not necessarily void because the witnesses declared against its validity.

Guerrero, J.:

The main point in controversy here is whether or not the last testament and its accompanying codicil were executed in accordance with the formalities of the law, considering the complicated circumstances that two of the attesting witnesses testified against their due execution while other non-subscribing witnesses testified to the contrary.

Petitioners argue that the attestation clause of the will and codicil which were signed by the instrumental witnesses are admissions of due execution of the deeds, thus, preventing the said witnesses from prevaricating later on by testifying against due execution. Petitioners further maintain that it is error for respondent court to give credence to the testimony of the biased witnesses as against their own attestation to the fact of due execution and over the testimonial account of the Notary Public who was also present during the execution and before whom, right after, the deeds were acknowledged.

Private respondents, on the other hand, reiterate in their contention the declaration of the two surviving witnesses, Odon Sarmiento and Rosendo Paz, that the will was not signed by the testatrix before their presence, which is strengthened by two photographic evidence showing only the two witnesses in the act of signing, there being no picture of the same occasion showing the testatrix signing the will. Respondent court holds the view that where there was an opportunity to take pictures, it is not understandable why pictures were taken of the witnesses and not of the testatrix. It concludes that the absence of the latter's picture to complete the evidence belies the testimony of Atty. Barcenas that the testatrix and the witnesses did sign the will and the codicil in the presence of each other.

The oppositors' argument is untenable. There is ample and satisfactory evidence to convince Us that the will and codicil were executed in accordance with the formalities required by law. It appears positively and convincingly that the documents were prepared by a lawyer, Atty. Manuel Alvero. The execution of the same was evidently supervised by his associate, Atty. Ricardo Barcenas and before whom the deeds were also acknowledged. The solemnity surrounding the execution of a will is

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attended by some intricacies not usually within the comprehension of an ordinary layman. The object is to close the door against bad faith and fraud, to avoid substitution of the will and testament, and to guarantee their truth and authenticity. If there should be any stress on the participation of lawyers in the execution of a will, other than an interested party, it cannot be less than the exercise of their primary duty as members of the Bar to uphold the lofty purpose of the law. There is no showing that the above-named lawyers had been remiss in their sworn duty. Consequently, respondent court failed to consider the presumption of regularity in the execution of the questioned documents. There were no incidents brought to the attention of the trial court to arouse suspicion of anomaly. While the opposition alleged fraud and undue influence, no evidence was presented to prove their occurrence. There is no question that each and every page of the will and codicil carry the authentic signatures of Eugenia Danila and the three (3) attesting witnesses. Similarly, the attestation clauses, far from being deficient, were properly signed by the attesting witnesses. Neither is it disputed that these witnesses took turns in signing the will and codicil in the presence of each other and the testatrix. Both instruments were duly acknowledged before a notary public who was all the time present during the execution.

The presumption of regularity can of course be overcome by clear and convincing evidence to the contrary, but not easily by the mere expediency of the negative testimony of Odon Sarmiento and Rosendo Paz that they did not see the testatrix sign the will. A negative testimony does not enjoy equal standing with a positive assertion, and faced with the convincing appearance of the will, such negative statement must be examined with extra care. For in this regard -

It has also been held that the condition and physical appearance of a questioned document constitute a valuable factor which, if correctly evaluated in the light of surrounding circumstances, may help in determining whether it is genuine or forged. Subscribing witnesses may forget or exaggerate what they really know, saw, heard or did; they may be biased and, therefore, tell only half-truths to mislead the court or favor one party to the prejudice of the others. This cannot be said of the condition and physical appearance of the questioned document. Both, albeit silent, will reveal the naked truth, hiding nothing, forgetting nothing, and exaggerating nothing.

Unlike other deeds, ordinary wills by necessity of law must contain an attestation clause which, significantly, is a separate memorandum or record of the facts surrounding the conduct of execution. Once signed by the attesting witnesses, it affirms that compliance with the indispensable legal formalities had been observed. This Court had previously held that the attestation clause basically contradicts the pretense of undue execution which later on may be made by the attesting witnesses. In the attestation clause, the witness do not merely attest to the signatures of the testatrix but also to the proper execution of the will, and their signatures following that of the testatrix show that they have in fact attested not only to the genuineness of the testatrix's signature but also to the due execution of the will as embodied in the attestation clause. By signing the will, the witness impliedly certified to the truth of the facts which admit to probate, including the sufficiency of execution, the capacity of the testatrix, the absence of undue influence, and the like.

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In this jurisdiction, all attesting witnesses to a will, if available, must be called to prove the will. Under this circumstance, they become "forced witnesses" and their declaration derogatory to the probate of the will need not bind the proponent, hence, the latter may present other proof of due execution even if contrary to the testimony of some or all of the attesting witnesses. As a rule, if any or all of the subscribing witnesses testify against the due execution of the will, or do not remember having attested to it, or are otherwise of doubtful credibility, the will may, nevertheless, be allowed if the court is satisfied from the testimony of other witnesses and from all the evidence presented that the will was executed and attested in the manner required by law. Accordingly, although the subscribing witnesses to a contested will are the best witnesses in connection with its due execution, to deserve full credit, their testimony must be reasonable and unbiased; if otherwise, it may be overcome by any competent evidence, direct or circumstantial.

In the case at bar, the records bear a disparity in the quality of the testimonies of Odon Sarmiento and Rosendo Paz on one hand, and the Notary Public Atty. Ricardo A. Barcenas, on the other. The testimony of Odon Sarmiento was contradicted by his own admission. Though his admission to the effect that "when Eugenia Danila signed the testament (he) and the two other attesting witnesses Rosendo Paz and Calixto Azusada were present" was made extrajudicially, it was not squarely refuted when inquired during the trial.

With respect to the testimony of Rosendo Paz, it had been refuted by the declaration of Atty. Ricardo A. Barcenas. The records show that this attesting witness was fetched by Felix Danila from his place of work in order to act as witness to a will. Rosendo Paz did not know what the document he signed was all about. Although he performed his function as an attesting witness, his participation was rather passive. We do not expect, therefore, that his testimony, "half-hearted" as that of Odon Sarmiento, to be as candid and complete as one proceeding from a keen mind fully attentive to the details of the execution of the deeds. Quite differently, Atty. Rosendo A. Barcenas, more than a direct witness himself, was purposely there to oversee the accomplishment of the will and codicil. His testimony is an account of what he actually heard and saw during the conduct of his profession. There is no evidence to show that this lawyer was motivated by any material interest to take sides or that his statement is truth perverted.

It has been regarded that the function of the Notary Public is, among others, to guard against any illegal or immoral arrangements in the execution of a will. In the absence of any showing of self-interest that might possibly have warped his judgment and twisted his declaration, the intervention of a Notary Public, in his professional capacity, in the execution of a will deserves grave consideration. An appraisal of a lawyer's participation has been succinctly stated by the Court in Fernandez v Tantoco, supra, this wise:

In weighing the testimony of the attesting witnesses to a will, the statements of a competent attorney, who has been charged with the responsibility of seeing to the proper execution of the instrument, is entitled to

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greater weight than the testimony of a person casually called to participate in the act, supposing of course, that no motive is revealed that should induce the attorney to prevaricate. The reason is that the mind of the attorney being conversant of the instrument, is more likely to become fixed on details, and he is more likely than other persons to retain those incidents in his memory.

One final point, the absence of a photograph of the testatrix Eugenia Danila in the act of signing her will. The fact that the only pictures available are those which show the witnesses signing the will in the presence of the testatrix and of each other does not belie the probability that the testatrix also signed the will before the presence of the witnesses. We must stress that the pictures are worthy only of what they show and prove and not of what they did not speak of, including the events they failed to capture. The probate of the will is a special proceeding not imbued with adversary character, wherein courts should relax the rules on evidence "to the end that nothing less than the best evidence of which the matter is susceptible" should be presented to the court before a purported will may be probated or denied probate.

We find here that the failure to imprint in photographs all the stages in the execution of the will does not serve any persuasive effect nor have any evidentiary value to prove that one vital and indispensable requisite has not been acted on. Much less can it defeat, by any ordinary or special reason, the presentation of other competent evidence intended to confirm a fact otherwise existent but not confirmed by the photographic evidence. The probate court having satisfied itself that the will and codicil were executed in accordance with the formalities required by law, and there being no indication of abuse of discretion on its part, We find no error committed or any exceptional circumstance warranting the subsequent reversal of its decision allowing the probate of the deeds in question.

WHEREFORE, the decision of the respondent Court of Appeals is hereby reversed insofar as it disallowed the probate of the will and codicil. with costs against respondent.

SO ORDERED.

Teehankee (chairman), Makasiar, Muñoz-Palma and Fernandez, JJ., concur.

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GARCIA v GATCHALIANNo. L-20357, 25 November 1967

21 SCRA 1056

Dizon, J.:

This is an appeal taken by Pedro Reyes Garcia from the decision of the Court of First Instance of Rizal in Special Proceedings No. 2623 denying the allowance of the will of the late Gregorio Gatchalian, on the ground that the attesting witnesses did not acknowledge it before a notary public as required by law.

On March 15, 1967, Gregorio Gatchalian, a widower of 71 years of age, died in the Municipality of Pasig, Province of Rizal, leaving no forced heirs. On April 2, of the same year, appellant filed a petition with the above-named court for the probate of said alleged will wherein he was instituted as sole heir. Felipe Gatchalian, Aurora G. Camins, Angeles G. Cosca, Federico G. Tubog, Virginia G. Talanay and Angeles G. Talanay, appellees herein, opposed the petition on the ground, among others, that the will was procured by fraud; that the deceased did not intend the instrument signed by him to be as his will; and that the deceased was physically and mentally incapable of making a will at the time of the alleged execution of said will.

After due trial, the court rendered the appealed decision finding the document Exhibit "C" to be the authentic last will of the deceased but disallowing it for failure to comply with the mandatory requirement of Article 806 of the New Civil Code - that the will must be acknowledged before a notary public by the testator and the witnesses.

An examination of the document shows that the same was acknowledged before a notary public by the testator but not by the instrumental witnesses.

x x x

We have held heretofore that compliance with the requirement contained in the above legal provision to the effect that a will must be acknowledged before a notary public by the testator and also by the witnesses is indispensable for its validity (In re: Testate Estate of Alberto, G.R. No. L-11948, April 29, 1959). As the document under consideration does not comply with this requirement, it is obvious that the same may not be probated.

WHEREFORE, the decision appealed from is affirmed, with costs.

Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur. Concepcion, C.J. and Reyes, J.B.L., are on official leave of absence.

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CRUZ v VILLASORNo. L-32213, 26 November 1973

54 SCRA 31

Article 806 requires that the testator and the three witnesses must acknowledge the will before a notary public. Cruz involves a situation where one of the three witnesses to the will was the same person who notarized the same. By reason thereof, the Supreme Court disallowed the will for the reasons stated hereunder. While the proponent of the will relied on American decisions which permit a notary public to be a witness to an instrument notarized by him, the Supreme Court rejected the application of the foregoing decisions to the case at bar. It would seem that the strongest argument against the proponent is the fact that the witnesses themselves are required by law to acknowledge the document. For which reason, it is obvious that a witness cannot simultaneously be the notary public before whom the will shall be acknowledged. A different result may be expected if the witnesses were not required by law to acknowledge the document.

It is equally important to note the ethical problem which may arise if the acknowledging witness were the same person who would notarize the document.

Esguerra, J.:

The only question presented for determination, on which the decision of the case hinges, is whether the supposed last will and testament of Valente Z. Cruz was executed in accordance with law, particularly Article 805 and 806 of the new Civil Code, the first requiring at least three credible witnesses to attest and subscribe to the will, and the second requiring the testator and the witnesses to acknowledge the will before a notary public.

Of the three instrumental witnesses thereto, namely, Deogracias T. Jamoas, Jr., Dr. Francisco Panares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the notary public before whom the will was supposed to have been acknowledged. Reduced to simpler terms, the question was (sic) attested and subscribed by at least three credible witnesses in the presence of the testator and of each other, considering that the three attesting witnesses must appear before the notary public to acknowledge the same. As the third witness is the notary public himself, petitioner argues that the result is that only two witnesses appeared before the notary public to acknowledge the will. On the other hand, private respondent-appellee, Manuel B. Lugay, who is the supposed executor of the will, following the reasoning of the trial court, maintains that there is substantial compliance with the legal requirement of having at least three attesting witnesses, even if the notary public acted as one of them, bolstering up his stand with 57 American Jurisprudence, p. 227 which, insofar as pertinent, reads as follows:

It is said that there are practical reasons for upholding a will as against the purely technical reason that one of the witnesses required by law as certifying to an acknowledgment of the testator's signature under oath rather than as attesting the execution of the instrument.

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After weighing the merits of the conflicting claims of the parties, We are inclined to sustain that of the appellant that the last will and testament in question was not executed in accordance with law. The notary public before whom the will was acknowledged cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the will. To acknowledge before means to avow (Javellana v Ledesma, 97 Phil 258, 262; Castro c Castro, 100 Phil 239, 247); to own as genuine, to assent, to admit; and "before" means in front or preceding in space or ahead of. (The New Webster Encyclopedic Dictionary of the english Language, p. 72; Funk & Wagnalls New Standard Dictionary of the English Language, p. 252; Webster's New International Dictionary, 2d., p. 245) Consequently, if the third witness were the notary public himself, he would have to avow, assent, or admit as his having signed the will in front of himself. This cannot be done because he cannot split his personality into two so that one will appear before the other to acknowledge his participation in the making of the will. To permit such a situation would be sanctioning a sheer absurdity.

Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral arrangements. (Balinon v de Leon, 50 O.G. 583) That function would be defeated if the notary public were one of the attesting or instrumental witnesses. For then he would be interested in sustaining the validity of the will as it directly involves himself and the validity of his own act. It would place him in an inconsistent position and the very purpose of the acknowledgment, which is to minimize fraud (Report of the Code Commission, p. 106-107), would be thwarted.

Admittedly, there are American precedents holding that a notary public may, in addition, act as a witness to the execution of the document he has notarized. (Mahilum v Court of Appeals, 64 O.G. 4017; 17 SCRA 482; Sawyer v Cox, 43 Ill 130) There are others holding that his signing merely as a notary in a will nonetheless makes him a witness thereunder (Ferguson v Ferguson, 47 S.E. 2d 346; In re Douglas' Will, 83 N.Y.S. 2d 641; Ragsdal v Hill, 269 S.W. 2d 911; Tyson v Utterback, 122 So 496; In re Baybee's Estate, 160 N.W. 900; Merill v Boal, 132 A. 721; See also Trenwith v Smallwood, 15 So. 1030). But these authorities do not serve the purpose of the law in this jurisdiction or are not decisive of the issue herein, because the notaries public and witnesses referred to in the aforecited cases merely acted as instrumental, subscribing or attesting witnesses, and not as acknowledging witnesses. Here the notary public acted not only as attesting witness but also as acknowledging witness, a situation not envisage by Article 805 of the Civil Code which reads:

Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will or file another with the office of the clerk of court.

To allow the notary public to act as third witness, or one of the attesting and acknowledging witnesses, would have the effect of having only two attesting witnesses to the will which would be in contravention of the provisions of Article 805 requiring at least three credible witnesses to act as such and of Article 806 which requires that the testator and the required number of witnesses must appear before the notary public to acknowledge the will. The result would be, as has been said, that

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only two witnesses appeared before the notary public for that purpose. In the circumstances, the law would not be duly observed.

FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate of the last will and testament of Valence Z. Cruz is declared not valid and hereby set aside. Cost against the appellee.

Makalintal, C.J., Castro, Teehankee, Makasiar and Munoz-Palma, JJ., concur.

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GUERRERO V BIHISG.R. No. 174144, 17 April 2007

521 SCRA 394

Guerrero defines “acknowledgment” and the competent officer before whom it should be made in the execution of a notarial will. The case further explains the reason for the requirement of Art. 806 and the function of the acknowledgment. Guerrero holds that a notarial will acknowledged before a notary public outside of the latter’s territorial jurisdiction is void. Effectively, the will is not acknowledged as required by Art. 806.

Corona, J.:

x x x

x x x Felisa Tamio de Buenaventura, mother of petitioner Bella A. Guerrero and respondent Resurreccion A. Bihis, died x x x in Tondo, Manila.

x x x Petitioner filed a petition for the probate of the last will and testament of the decedent in x x x the Regional Trial Court of Quezon City x x x.

x x x

Respondent opposed her elder sister’s petition on the following grounds: the “will” was not executed and attested as required by law; its attestation clause and acknowledgement did not comply with the requirements of the law; the signature of the testatrix was procured by fraud and petitioner and her children procured the will through undue and improper pressure and influence.

In an order dated November 9, 1994, the trial court appointed petitioner as special administratrix of the decedent’s estate. x x x.

On January 17, 2000, after petitioner presented her evidence, respondent filed a demurrer thereto alleging that petitioner’s evidence failed to establish that the decedent’s will complied with Articles 804 and 805 of the Civil Code.

In a resolution dated July 6, 2001, the trial court denied the probate of the will ruling that Article 806 of the Civil Code was not complied with because the will was “acknowledged” by the testatrix and the witnesses at the testatrix’s residence at 40 Kanlaon Street, Quezon city before Atty. Macario O. Directo who was a commissioned notary public for and in Caloocan City. The dispositive portion of the resolution read:

“WHEREFORE, in view of the foregoing, the Court finds, and so declares that it cannot admit the last will and testament of the late Felisa Tamio de Buenaventura to probate for the reasons hereinabove discussed and also in accordance with Article 839 [of the Civil Code] which provides that if the formalities required by law have not been complied with, the will shall be disallowed. In view thereof, the Court shall henceforth proceed with intestate

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succession in regard to the estate of the deceased Felisa Tamio de Buenaventura in connection with Article 960 of the [Civil Code], to wit: “Art. 960. Legal or intestate succession takes place: (1) If a person dies without a will, or with a void will, or one which has subsequently lost its validity, x x x.”

Petitioner elevated the case to the Court of Appeals but the appellate court dismissed the appeal and affirmed the resolution of the trial court.

Thus, this petition.

Petitioner admits that the will was acknowledged by the testatrix and the witnesses at the testatrix’s residence in Quezon City before Atty. Directo and that, at that time, Atty. Directo was a commissioned notary public for and in Caloocan City. She, however, asserts that the fact that the notary public was acting outside his territorial jurisdiction did not affect the validity of the notarial will.

Did the will “acknowledged” by the testatrix and the instrumental witnesses before a notary public acting outside the place of his commission satisfy the requirement under Article 806 of the Civil Code? It did not.

Article 806 of the Civil Code provides:

x x x

One of the formalities required by law in connection with the execution of a notarial will is that it must be acknowledged before a notary public by the testator and the witnesses. This formal requirement is one of the indispensable requisites for the validity of a will. In other words, a notarial will that is not acknowledged before a notary public by the testator and the instrumental witnesses is void and cannot be accepted for probate.

An acknowledgment is the act of one who has executed a deed in going before some competent officer and declaring it to be his act or deed. In the case of a notarial will, that competent officer is the notary public.

The acknowledgment of a notarial will coerces the testator and the instrumental witnesses to declare before an officer of the law, the notary public, that they executed and subscribed to the will as their own free act and deed. Such declaration is under oath and under pain of perjury, thus paving the way for the criminal prosecution of persons who participated in the execution of spurious wills, or those executed without the free consent of the testator. It also provides a further degree of assurance that the testator is of a certain mindset in making the testamentary dispositions to the persons instituted as heirs or designated as devisees or legatees in the will.

Acknowledgment can only be made before a competent officer, that is, a lawyer duly commissioned as a notary public. In this connection, the relevant provisions of the Notarial Law provides:

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“x x x

SECTION 240. Territorial Jurisdiction.- The jurisdiction of a notary public in a province shall be co-extensive with the province. The jurisdiction of a notary public in the City of Manila shall be co-extensive with said city. No notary shall possess authority to do any notarial act beyond the limits of his jurisdiction.”

A notary public’s commission is the grant of authority in his favor to perform notarial acts. It is issued ”within and for” a particular territorial jurisdiction and the notary public’s authority is co-extensive with it. In other words, a notary public is authorized to perform notarial acts, including the taking of acknowledgment, within that territorial jurisdiction only. Outside the place of his commission, he is bereft of power to perform any notarial act; he is not a notary public. Any notarial act outside the limits of his jurisdiction has no force and effect. As this Court categorically pronounced in Tecson v Tecson:

“An acknowledgment taken outside the territorial limits of the officer’s jurisdiction is void as if the person taking it were wholly without official character.”

Since Atty. Directo was not a commissioned notary public for and in Quezon City, he lacked the authority to take the acknowledgment of the testatrix and the instrumental witnesses. In the same vein, the testatrix and her witnesses could not have validly acknowledged the will before him. Thus, Felisa Tamio de Buenaventura’s last will and testament was, in effect, not acknowledged as required by law.

Moreover, Article 5 of the Civil Code provides:

“ART. 5. Acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes their validity.”

The violation of a mandatory or prohibitory statute renders the act illegal and void unless the law itself declares its continuing validity. Here, mandatory and prohibitory statutes were transgressed in the execution of the alleged “acknowledgment.” The compulsory language of Article 806 of the Civil Code was not complied with and the interdiction of Article 240 of the Notarial Law was breached. Ineluctably, the acts of the testatrix, her witnesses and Atty. Directo were all completely void.

x x x

WHEREFORE, the petition is hereby DENIED.

SO ORDERED.

Sandoval-Gutierrez, Azcuna, and Garcia, JJ., concur. Puno (C.J., Chairperson), No part.

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GABUCAN v MANTANo. L-51546, 28 January 1980

95 SCRA 752

Incompetence takes various forms. The foregoing case is classic in a very special way as it resulted not only in a waste of time but also of taxpayers' money.

Aquino, J.:

This case is about the dismissal of a petition for the probate of the notarial will on the ground that it does not bear a thirty-centavo documentary stamp.

The Court of First Instance of Camiguin in its "decision" of December 28, 1977 in Special Proceedings No. 41 for the probate of the will of the late Rogaciano Gabucan, dismissed the proceeding (erroneously characterized as an "action").

The proceeding was dismissed because the requisite documentary stamp was not affixed to the notarial acknowledgment in the will, hence, according to respondent judge, it was not admissible in evidence, citing section 238 of the Tax Code, now Section 250 of the 1977 Tax Code which reads:

x x x

The probate court assumed that the notarial acknowledgment of the said will is subject to the thirty-centavo documentary stamp tax fixed in section 225 of the Tax Code, now section 237 of the 1977 Tax Code.

Respondent Judge refused to reconsider the dismissal in spite of petitioner's manifestation that he had already attached the documentary stamp to the original of the will.

The case was brought to this Court by means of a petition for mandamus to compel the lower court to allow petitioner's appeal from its decision. In this court's resolution of January 21, 1980, the petition for mandamus was treated in the interest of substantial and speedy justice as an appeal under Republic Act No. 5440 as well as a special civil action of certiorari under Rule 65 of the Rules of Court.

We hold that the lower court manifestly erred in declaring that because no documentary stamp was affixed to the will, there was "no will and testament to probate" and, consequently, the alleged "action must of necessity be dismissed."

What the probate court should have done was to require the petitioner or proponent to affix the requisite thirty-centavo documentary stamp to the notarial acknowledgment of the will which is the taxable portion of the document.

That procedure may be implied from the provision of section 238 that the non-admissibility of the document, which does not bear the requisite documentary stamp,

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subsists only "until the requisite stamp or stamps shall have been affixed thereto and canceled."

Thus, it was held that the documentary stamp may be affixed at the time the taxable document is presented in evidence (del Castillo v Madrile n a , 49 Phil 749. Note the holding in Azarraga v Rodriguez, 9 Phil 637, that the lack of documentary stamp on a document does not invalidate such document. See Cia. General de Tabacos v Jeanjaquet, 12 Phil 195, 201-2 and Delgado and Figueroa v Amenabar, 16 Phil 403, 405-6)

WHEREFORE, the lower court's dismissal of the petition of probate is reversed and set aside. It is directed to decide the case on the merits in the light of the parties' evidence. No costs.

SO ORDERED.

Barredo, Antonio, Concepcion, Jr. and Abad Santos, JJ., concur.

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GARCIA v VASQUEZNo. L-26884, 30 April 1970

32 SCRA 490

Article 808 of the Civil Code prescribes an additional formality in the case of a blind testator. Garcia holds that if a testator's vision does not permit him to read the document, even if he can see distant object, the testator is deemed blind for the purpose of requiring the observance of the additional formality prescribed in Article 808.

Justice Reyes opined that if the testator is blind or incapable of reading the will (as when he is illiterate) the requirement of reading must be complied with in order to enable the testator to object to provisions which are not in accordance with his wishes. While the opinion seems reasonable, Article 808 makes specific reference to a blind person. An illiterate person with good vision was not mentioned in the law. There is serious doubt, therefore, if the provision of Article 808 is applicable to an illiterate testator.

Reyes, J.B.L., J.:

Gliceria Avelino del Rosario died unmarried in the City of Manila on 2 September 1965, leaving no descendants, ascendants, brother or sister. At the time of her death, she was said to be 90 years old more or less, and possessed of an estate consisting mostly of real properties.

On 17 September 1965, Consuelo S. Gonzales vda. de Precilla, a niece of the deceased, petitioned the Court of First Instance of Manila for probate of the alleged last will and testament of Gliceria A. del Rosario, executed on 29 December 1960, and for her appointment as special administratrix of the latter's estate said to be valued at about P100,000.00, pending the appointment of a regular administrator thereof.

The petition was opposed separately by several groups of alleged heirs: x x x. The oppositions invariably charged that the instrument executed in 1960 was not intended by the deceased to be her true will; that the signature of the deceased appearing in the will was procured through undue and improper pressure and influence on the part of the beneficiaries and/or other persons; that the testatrix did not know the object of her bounty; that the instrument itself reveals irregularities in its execution, and that the formalities required by law for such execution have not been complied with.

x x x

On 25 August 1966, the Court issued an order admitting to probate the 1960 will of Gliceria A. del Rosario. In declaring the due execution of the will, the probate court took note that no evidence had been presented to establish that the testatrix was not of sound mind when the will was executed; that the fact that she had prepared an earlier will did not prevent her from executing another one thereafter; that the fact that

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the 1956 will consisted of 12 pages whereas the 1960 testament was contained in one page does not render the latter invalid; that the erasures and alterations in the instrument were insignificant to warrant rejection; that the inconsistencies in the testimonies of the instrumental witnesses which were noted by the oppositors are even indicative of their truthfulness. The probate court, also considering that petitioner had already shown capacity to administer the properties of the estate and that from the provisions of the will she stands as the person most concerned and interested therein, appointed the petitioner regular administratrix with a bond for P50,000.00. From this order all oppositors appealed x x x.

x x x

Foremost of the questions to be determined here concerns the correctness of the order allowing the probate of the 1960 will.

The records of the probate proceeding fully establish the fact that the testatrix, Gliceria A. del Rosario, during her lifetime, executed two wills: one on 9 June 1956 consisting of 12 pages and written in Spanish, a language that she knew and spoke, witnessed by Messrs. Antonio Cabrera, Jesus Y. Ayala and Valentin Marquez, and acknowledged before notary public Jose Ayala; and another dated 29 December 1960, consisting of 1 page and written in Tagalog, witnessed by Messrs. Vicente Rosales, Francisco Decena, and Francisco Lopez, and acknowledged before notary public Remigio M. Tividad.

Called to testify on the due execution of the 1960 will, instrumental witnesses Decena, Lopez and Rosales uniformly declared that they were individually requested by Alfonso Precilla (the late husband of petitioner special administratrix) to witness the execution of the last will of Doña Gliceria A. del Rosario; that they arrived at the house of the old lady at No. 2074 Azcarraga, Manila, one after the other, in the afternoon of 29 December 1960; that the testatrix at the time was apparently of clear and sound mind, although she was being aided by Precilla when she walked; that the will, which was already prepared, was first read "silently" by the testatrix herself before she signed it; that the three witnesses thereafter signed the will in the presence of the testatrix and the notary public and of one another. There is also testimony that after the testatrix and the witnesses to the will acknowledged the instrument to be their voluntary act and deed, the notary asked for their respective residence certificates which were handed to him by Alfonso Precilla, clipped together; that after comparing them with the numbers already written on the will, the notary public filled in the blanks in the instrument with the date 29 January 1960, before he affixed his signature and seal thereto. They also testified that on that occasion no pressure or influence has been exerted by any person upon the testatrix to execute the will.

Of course, the interest and active participation of Alfonso Precilla in the signing of the 1960 will are evident from the records. The will appeared to have been prepared by one who is not conversant with the spelling of Tagalog words, and it has been shown that Alfonso Precilla is a Cebuano who speaks Tagalog with a Visayan accent. The witnesses to the will, two of whom are fellow Visayans, admitted their relationship

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or closeness to Precilla. It was Precilla who instructed them to go to the house of Gliceria del Rosario on 29 December 1960 to witness an important document, and who took their residence certificates for them a few days before the will was signed. Precilla had met the notary public and witnesses Rosales and Lopez at the door of the residence of the old woman; he ushered them to the room at the second floor where the signing of the document took place; then he fetched witness Decena from the latter's haberdashery shop a few doors away and brought him to the house of the testatrix. And when the will was actually executed Precilla was present.

The oppositors-appellants in the present case, however, challenging the correctness of the probate court's ruling, maintain that on 29 December 1960 the eyesight of Gliceria del Rosario was so poor and defective that she could not have read the provisions of the will, contrary to the testimonies of witnesses Decena, Lopez and Rosales.

On this point, we find the declaration in court of Dr. Jesus V. Tamesis very material and illuminating. Said ophthalmologist, whose expertise was admitted by both parties, testified, among other things that when Doña Gliceria del Rosario saw him for consultation on 11 March 1960 he found her left eye to have cataract (opaque lens), and that it was "above normal in pressure," denoting a possible glaucoma, a disease that leads to blindness. x x x.

The records also show that although Dr. Tamesis operated on the left eye of the decedent at the Lourdes Hospital on 8 August 1960, as of 23 August 1960, in spite of the glasses her vision was only "counting fingers," at five feet. x x x.

Then confronted with a medical certificate issued by him on 29 November 1965 certifying that Gliceria del Rosario was provided with aphakic lenses and "had been under medical supervision up to 1963 with apparently good vision," the doctor had this to say:

Q. When you said that she had apparently good vision you mean that she was able to read?

A. No, not necessarily, only able to go around, take care of herself and see. This I can tell you, this report was made on pure recollections and I recall she was using her glasses although I recall also that we have to give her medicines to improve her vision, some medicines to improve her identification some more.

x x x

Q. What about the vision in the right eye, was that corrected by the glasses?

A. Yes, with the new prescription which I issued on 30 August 1960. It is in the clinical record.

Q. The vision in the right eye was corrected?

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A. Yes. That is the vision for distant objects.

The foregoing testimony of the ophthalmologist who treated the deceased, and therefore, has first hand knowledge of the actual condition of her eyesight from August 1960 up to 1963, fully establish the fact that notwithstanding the operation and removal of the cataract in her left eye and her being fitted with aphakic lens (used by cataract patients), her vision remained mainly for viewing distant objects and not for reading print. Thus, the conclusion is inescapable that with the condition of her eyesight in August 1960, and there is no evidence that it had improved by 29 December 1960, Gliceria del Rosario was incapable of reading, and could not have read the provisions of the will supposedly signed by her on 29 December 1960. It is worth noting that the instrumental witnesses stated that she read the instrument "silently" which is a conclusion and not a fact.

Against the background of defective eyesight of the alleged testatrix, the appearance of the will, Exhibit "D" acquires striking significance. Upon its face, the testamentary provisions, the attestation clause and acknowledgment were crammed together into a single sheet of paper, so much so that the words had to be written very close to the top, bottom and two sides of the paper, leaving no margin whatsoever; the words "and" had to be written by the symbol "&", apparently to save on space. Plainly, the testament was not prepared with any regard for the defective vision of Doña Gliceria. Further, typographical errors like "HULINH" for "HULING" (last), "Alfonsa" for "Alfonso", "MERCRDRS" for "MERCEDES", "instrumental" for "Instrumental" and "acknowledged" for "acknowledge", remain uncorrected, thereby indicating that execution thereof must have been characterized by haste. It is difficult to understand that so important a document containing the final disposition of one's worldly possessions should not be embodied in an informal and untidily written instrument; or that the glaring spelling error should have escaped her notice if she had actually retained the ability to read the purported will and had done so. The record is thus convincing that the supposed testatrix could not have physically read or understood the alleged testament, Exhibit "D", and that its admission to probate was erroneous and should be reversed.

That Doña Gliceria should be able to greet her guests on her birthday, arrange flowers and attend to kitchen tasks shortly prior to the alleged execution of the testament Exhibit "D", as appears from the photographs, Exhibits "E" to "E-1", in no way proves that she was able to read a closely typed page, since the acts shown do not require vision at close range. It must be remembered that with the natural lenses removed, her eyes had lost the power of adjustment to near vision, the substituted glass lenses being rigid and uncontrollable by her. Neither is the signing of the checks by her indicative of ability to see at normal reading distances. Writing or signing of one's own name, when sufficiently practiced, becomes automatic, so that one need only to have a rough indication of the place where the signature is to be affixed in order to be able to write it. Indeed a close examination of the checks, amplified in the photograph Exhibit "O", et seq., reinforces the contention of oppositors that the alleged testatrix could not see at normal reading distances: the signatures in the checks are written far above the printed base lines, and the names of the payees as

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well as the amounts written do not appear to be in the handwriting of the alleged testatrix, being in a much firmer and more fluid hand than hers.

Thus, for all intents and purposes of the rules on probate, the deceased Gliceria del Rosario was, as appellant-oppositors contend, not unlike a blind testator, and the due execution of her will would have required observance of the provisions of Article 808 of the Civil Code:

Art. 808. If the testator be blind, the will shall be read to him twice; once by one of the subscribing witnesses, and again by the notary public before whom the will is acknowledged.

The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will himself (as when he is illiterate), is to make the provisions thereof known to him, so that he may be able to object if they are not in accordance with his wishes. That the aim of the law is to ensure that the dispositions of the will are properly communicated to and understood by the handicapped testator, thus making them truly reflective of his desire, is evidenced by the requirement that the will should be read to the latter, not only once but twice, by two different persons, and that the witnesses have to act within the range of his (the testator's) other senses.

In connection with the will here in question, there is nothing in the records to show that the above requisites have been complied with. Clearly, as already stated above, the 1960 will sought to be probated suffers from infirmity that affects its due execution.

x x x

FOR THE FOREGOING REASONS, the order of the court below allowing the probate of the alleged 1960 will of Gliceria A. del Rosario is hereby reversed and set aside. x x x.

Concepcion, C.J., Dizon, Makalintal, Fernando, Teehankee and Villamor, JJ., concur. Zaldivar and Castro, JJ., took no part. Barredo, J., is on leave.

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ALVARADO v GAVIOLA, JR.G.R. No. 74695, 14 September 1993

226 SCRA 347

This is the second instance where the Court had occasion to discuss the meaning of the term "blind testator." Alvarado confirms that a person unable to read the draft of his will, either because of poor, defective or blurred eyesight must be considered blind for the purpose of compliance with the additional formalities prescribed in Article 808. In addition, the Court confirms that inability to read by reason of illiteracy is included within the broader concept of "blindness" for the purpose of the same article. However, Alvarado makes a landmark exception to the rule of strict compliance when it affirmed the probate order despite non-compliance with the double reading requirement. How this decision will affect the courts interpretation of the other formal requirements of the law remains to be seen.

Bellosillo, J.:

x x x

On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will entitled "Huling Habilin" wherein he disinherited an illegitimate son (petitioner) and expressly revoked a previously executed holographic will at the time awaiting probate before Branch 4 of the Regional Trial Court of Sta. Cruz, Laguna.

As testified to by the three instrumental witnesses, the notary public and by private respondent who were present at the execution, the testator did not read the final draft of the will himself. Instead, private respondent, as the lawyer who drafted the eight-paged document, read the same aloud in the presence of the testator, the three instrumental witnesses and the notary public. The latter four followed the reading with their own respective copies, previously furnished them.

Meanwhile, Brigido's holographic will was subsequently admitted to probate on 9 December 1977. On the 29th day of the same month, a codicil entitled "Kasulatan ng Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling Habilin na May Petsa Nobiembre 5, 1977 ni Brigido Alvarado" was executed changing some dispositions in the notarial will to generate cash for the testator's eye operation. Brigido was then suffering from glaucoma. But the disinheritance and revocatory clauses were unchanged. As in the case of the notarial will, the testator did not personally read the final draft of the codicil. Instead, it was private respondent who read it aloud in his presence and in the presence of the three instrumental witnesses (same as those in the notarial will) and the notary public who followed the reading using their own copies.

A petition for the probate of the notarial will and codicil was filed upon the testator's death x x x by private respondent as executor with the Court of First Instance of Siniloan, Laguna. Petitioner, in turn, filed an Opposition on the following grounds: that the will sought to be probated was not executed and attested as required by law; that the testator was insane or otherwise mentally incapacitated to

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make a will at the time of its execution due to senility and old age; that the will was executed under duress, or influence of fear or threats; that it was procured by undue and improper influence on the part of the beneficiary who stands to get the lion's share of the testator's estate; and lastly, that the signature of the testator was procured by fraud or trick.

When the oppositor (petitioner) failed to substantiate the grounds relied upon in the Opposition, a Probate Order was issued on 27 June 1983 from which an appeal was made to respondent court. The main thrust of the appeal was that the deceased was blind within the meaning of the law at the time his "Huling Habilin" and the codicil attached thereto were executed; that since the reading required by Art. 808 of the Civil Code was admittedly not complied with, probate of the deceased's last will and codicil should have been denied.

On 11 April 1986, the Court of Appeals rendered the decision under review with the following findings: that Brigido Alvarado was not blind at the time his last will and codicil were executed; that assuming his blindness, the reading requirement of Art. 808 was substantially complied with when both documents were read aloud to the testator with each of the three instrumental witnesses and the notary public following the reading with their respective copies of the instruments. The appellate court then concluded that although Art. 808 was not followed to the letter, there was substantial compliance since its purpose of making known to the testator the contents of the drafted will was served.

The issues now before us can be stated thus: Was Brigido Alvarado blind for purposes of Art. 808 at the time his "Huling Habilin" and its codicil were executed? If so, was the double-reading requirement of said article complied with?

Regarding the first issue, there is no dispute on the following facts: Brigido Alvarado was not totally blind at the time the will and codicil were executed. However, his vision on both eyes was only of "counting fingers at three (3) feet" by reason of the glaucoma which he had been suffering from for several years and even prior to his first consultation with an eye specialist on 14 December 1977.

The point of dispute is whether the following circumstances would qualify Brigido as a "blind" testator under Art. 808 which reads:

Art. 808. If the testator is blind, the will shall be read to him twice; once by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged.

Petitioner contends that although his father was not totally blind when the will and codicil were executed, he can be so considered within the scope of the terms as it is used in Art. 808. To support his stand, petitioner presented before the trial court a medical certificate issued by Dr. Salvador R. Salceda, Director of the Institute of Ophthalmology (Philippine Eye Research Institute), the contents of which were interpreted in layman's terms by Dr. Ruperto Roasa, whose expertise was admitted by private respondent. Dr. Roasa explained that although the testator could visualize

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fingers at three (3) feet, he could no longer read either printed or handwritten matters as of 14 December 1977, the day of his first consultation.

On the other hand, the Court of Appeals, contrary to the medical testimony, held that the testator could still read on the day the will and codicil were executed but chose not to do so because of "poor eyesight." Since the testator was still capable of reading at that time, the court a quo concluded that Art. 808 need not be complied with.

We agree with petitioner in this respect.

Regardless of respondent's staunch contention that the testator was still capable of reading at the time his will and codicil were prepared, the fact remains and this was testified to by his witnesses, that Brigido did not do so because of his "poor," "defective," or "blurred" vision making it necessary for private respondent to do the actual reading for him.

The following pronouncement in Garcia v Vasquez provides an insight into the scope of the term "blindness: as used in Art. 808, to wit:

The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will himself (as when he is illiterate), is to make the provisions thereof known to him, so that he may be able to object if they are not in accordance with his wishes x x x.

Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those who, for one reason or another, are "incapable of reading the(ir) will(s)." Since Brigido Alvarado was incapable of reading the final drafts of his will and codicil on the separate occasions of their execution due to his "poor," "defective," or "blurred" vision, there can be no other course for us but to conclude that Brigido Alvarado comes within the scope of the term "blind" as it is used in Art. 808. Unless the contents were read to him, he had no way of ascertaining whether or not the lawyer who drafted the will and codicil did so conformably with his instructions. Hence, to consider his will as validly executed and entitled to probate, it is essential that we ascertain whether Art. 808 had been complied with.

Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read to him twice; once by one of the instrumental witnesses and, again, by the notary public before whom the will was acknowledged. The purpose is to make known to the incapacitated testator the contents of the document before signing and to give him an opportunity to object if anything is contrary to his instructions.

That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public and an instrumental witness, it was the lawyer (private respondent) who drafted the eight-paged will and the five-paged codicil who read the same aloud to the testator, and read them only once, not twice as Art. 808 requires.

Private respondent however insists that there was substantial compliance and

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that the single reading suffices for purposes of the law. On the other hand, petitioner maintains that the only valid compliance is a strict compliance or compliance to the letter and since it is admitted that neither the notary nor an instrumental witness read the contents of the will and codicil to Brigido, probate of the latter's will and codicil should have been disallowed.

We sustain private respondent's stand and necessarily the petition must be denied.

This Court has held in a number of occasions that substantial compliance is acceptable where the purpose of the law has been satisfied, the reason being that the solemnities surrounding the execution of wills are intended to protect the testator from all kinds of fraud and trickery but are never intended to be so rigid and inflexible as to destroy the testamentary privilege.

In the case at bar, private respondent read the testator's will and codicil aloud in the presence of the testator, his three instrumental witnesses, and the notary public. Prior and subsequent thereto, the testator affirmed, upon being asked, that the contents read corresponded with his instructions. Only then did the signing and acknowledgment take place. There is no evidence, and petitioner does not so allege, that the contents of the will and codicil were not sufficiently made known and communicated to the testator. On the contrary, with respect to the "Huling Habilin," the day of the execution was not the first time that Brigido had affirmed the truth and authenticity of the contends of the draft. The uncontradicted testimony of Atty. Rino is that Brigido Alvarado already acknowledged that the will was drafted in accordance with his expressed wishes even prior to 5 November 1977 when Atty. Rino went to the testator's residence precisely for the purpose of securing his conformity to the draft.

Moreover, it was not only Atty. Rino who read the documents on 5 November 1977 and 29 December 1977. The notary public and the three instrumental witnesses likewise read the will and codicil, albeit silently. Afterwards, Atty. Nonia de la Peña (the notary public) and Dr. Cresente O. Evidente (one of the three instrumental witnesses and the testator's physician) asked the testator whether the contents were of his own free will. Brigido answered in the affirmative. With four persons following the reading word for word with their own copies, it can be safely concluded that the testator was reasonably assured that what was read to him (those which he affirmed were in accordance with his instructions), were the terms actually appearing on the typewritten documents. This is especially true when we consider the fact that the three instrumental witnesses were persons known to the testator, one being his physician (Dr. Evidente) and another (Potenciano C. Ranieses) being known to him since childhood.

The spirit behind the law was served though the letter was not. Although there should be strict compliance with the substantial requirements of the law in order to insure the authenticity of the will, the formal imperfections should be brushed aside when they do not affect its purpose and which, when taken into account, may only defeat the testator's will.

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As a final word to convince petitioner of the propriety of the trial court's Probate Order and its affirmance by the Court of Appeals, we quote the following pronouncement in Abangan v Abangan, to wit:

The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid the substitution of wills and testaments and to guaranty their truth and authenticity. Therefore the laws on the subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testator's will, must be disregarded. [Underscoring supplied.]

Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in his "Huling Habilin" and the codicil attached thereto. We are unwilling to cast these aside for the mere reason that a legal requirement intended for his protection was not followed strictly when such compliance had been rendered unnecessary by the fact that the purpose of the law, i.e., to make known to the incapacitated testator the contents of the draft of his will, had already been accomplished. To reiterate, substantial compliance suffices where the purpose has been served.

WHEREFORE, the petition is DENIED and the assailed Decision of respondent Court of Appeals dated 11 April 1986 is AFFIRMED. Considering the length of time that this case has remained pending, this decision is immediately executory. Costs against petitioner.

SO ORDERED.

Cruz (Chairman), Griño-Aquino, Davide, Jr., and Quiason, JJ., concur.

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GIL v MURCIANONo. L-3362, 1 March 1951

88 Phil 260

Article 809 enunciates the doctrine of liberal interpretation. Accordingly, in the absence of bad faith, forgery, fraud or undue and improper influence and pressure, defects or imperfections in the form of attestation clause or in the language used therein shall not render the will invalid, if it is proved that the will was in fact executed and attested in substantial compliance with the requisites of law. Gil involves an attestation clause which omitted to state that the testator signed the will in the presence of the witnesses. Such fact was, however, stated by the testator in the body of the will. There is no question as to the genuineness of the will, as even the opponents concede that issue.

It is most unfortunate that there was a sharp division in the court. In the original decision, six voted for its nullity and five for its validity. In resolving the motion for reconsideration, six members of the court voted for the validity of the will, five against it. Consequently, the issue remained controversial and far from having been resolved. The text below is part of the resolution of the motion for reconsideration. The text of the original decision (which has been reversed) was omitted.

RESOLUTION

Tuason, J.:

This appeal is before us on a motion for reconsideration of this court's decision. Whereas formerly six Justices voted for reversal and five for affirmance of the probate court's order admitting the will to probate, the vote upon reconsideration was six for affirmance and five for reversal, thereby making the dissenting opinion, which had been filed, the prevailing rule of the case. Under the circumstances, this resolution will largely be confined to a restatement of that dissenting opinion.

The will in question was presented for probate in the Court of First Instance of Manila in 1943 with Roberto Toledo y Gil, decedent's nephew, and Pilar Gil vda. de Murciano, decedent's sister opposing the application. Toledo's legal right to intervene was questioned by the proponent of the will, and the objection was sustained in an order which was affirmed by this court x x x. As a result of the latter decision, Toledo was eliminated from the case and did not appear when the trial was resumed.

The proceeding seems to have been held in abeyance pending final disposition of Toledo's appeal, and early in 1945, before the application was heard on the merit, the record, along with the will, was destroyed, necessitating its reconstitution after liberation. In the reconstitution, a stipulation of facts was submitted on which, according to the appealed order, "both parties x x x agreed that the will as transcribed in the record on appeal in Case G.R. No. L-254 is true and a correct copy.

The will consisted of only two pages, and the attestation clause as thus copied

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reads:

NOSOTROS los que suscribimos, todos mayores de edad, certificamos: que el testamento que precede escrito en la lengua castellana que conoce la testador, compuesto de dos paginas utiles con la clausula de atestiguamento paginadas correlativamente en letras y numeros en la parte superior de la casilla, asi como todas las hojas del mismo, en nuestra precencia y que cada uno de nosotros hemos atestiguado y firmado dicho documento y todas las hojas del mismo en presencia del testador y en la de cada uno de nosotros.

Fdo. Alfredo T. Rivera Fdo. Ramon Mendiola Fdo. Mariano Omana

It will be noted from the above copy that the last of the compound sentence is truncated and meaningless. The defect is the main basis of the appellant's sole assignment of error.

Counsel for appellee contend that the phrase "han sido firmadas por el testator" or equivalent expression between the words "del mismo" and the words "en nuestra presencia" should be inserted if the attestation clause is to be complete and have sense. With this insertion the attestation clause would read x x x "asi como todas las hojas del mismo han sido firmadas por el testador en nuestra presencia x x x." The point is well taken.

It seems obvious that the missing phrase was left out from the copy. The probabilities of error in the copy are enhanced by the fact that the form of the will was not in controversy in Toledo's appeal. The form of the will being immaterial, it is easily conceivable that little or no care was employed in transcribing the document in the agreement or record on appeal. The absence of the signature of the testator on the first page of the copy is an additional proof that little or no pain was taken to insure accuracy in the transcription. The appearance of "la testadora" in the copy instead of "el testador" is another indication of haste and carelessness in the transcription.

Quite aside from all this, the testator was presumed to know the law, as the trial court says. Certainly, Attorney Mariano Osmeña, who drew the instrument and signed it as an attesting witness, knew the law and, by the context thereof, has shown familiarity with the rules of grammar and ability to express his idea properly. In the light of these circumstances and of the further fact that the clause was brief and, by its importance, must have been written with utmost concern, so important an omission as to make the clause or sentence senseless could not have been made, intentionally or otherwise, in the original.

x x x

The problem posed by the omission in question is governed, not by the law of wills which requires certain formalities to be fulfilled in the execution, but by the rules of construction applicable to statutes and documents in general. And this rule would obtain whether the omission occurred in the original document or in the copy alone. In

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either case, the court may and should correct the error by supplying the omitted word or words.

x x x

From 6 C.J.S. 82, 83, we quote: "Words omitted from a will may be supplied by the court whenever necessary to effectuate the testator's intention as expressed in the will; but not where the effect of inserting the words in the will would alter or defeat such intention, or change the meaning of words that are clear and unequivocal." On pages 50 and 51, the same work says: "To aid the court in ascertaining and giving effect to the testator's intention in the case of an ambiguous will, certain rules have been established for guidance in the construction or interpretation to be placed upon such a will, and in general a will should be construed according to these established rules of construction." And referring to construction of statutes which, as has been said, is applicable to construction of documents, C.J.S., in Vol. 59, p. 992, tells us that "Where it appears from the context that certain words have been inadvertently omitted from a statute, the court may supply such words as are necessary to complete the sense, and to express the legislative intent."

Adding force to the above principle is the legal presumption that the will is in accordance with law. (2 Page on Will 849, 841; 57 Am. Jur. 720)

But let it be assumed, for the sake of this decision only, that the attestation clause was drawn exactly as it was copied in Toledo's record on appeal, was the mistake fatal? Was it, or was it not, cured by the testator's own declaration? "En testimonio de lo cual, firmo este mi testamento y en el margen izquierdo de cada una de sus dos paginas utiles con la clausula de atestiguamiento en presencia de los testigos, quines a su vez firmaron cada una de dichas paginas y la clausula de atestiguamiento en mi presencia [de los testigos, quienes a su vez firmaron cada una de dichas paginas y la clausula de atestiguamiento en mi presencia cada] uno de ellos con la de los demas, hoy, en Porac, Pampanga, I.F., el dia 27 de marzo de mil novecientos treinta y nueve." The answer is in the negative.

As early as 1922 a similar case, in which the validity of the will was sustained, found its way into this court. (See Aldaba v Roque, 43 Phil 378) That case was more than foursquare behind the case at bar. There the departure from the statutory formality was more radical, in that the testator took charge of writing the entire attestation clause in the body of the will, the witnesses limiting their role to signing the document below the testator's signature. Here, at the most, the testator took away from the witnesses only a small part of their assigned task, leaving to them the rest.

Referring to "the lack of attestation clause required by law," this Court, in a unanimous decision en banc, through Mr. Justice Villamor said in the Aldaba-Roque case:

When the attestation clause is signed by the witnesses to the instrument, besides the testator, such attestation clause is valid and constitutes a substantial compliance with the provisions of section 1 of Act No. 2645, even

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though the facts recited in said attestation clause appear to have been made by the testator himself.

That ruling should set the present case at rest unless we want to revert to the old, expressly abandoned doctrine, in a long line of what we believe to be better-considered decisions.

This court noted in Dichoso de Ticson v de Gorostiza (1922), 57 Phil 437, "that there have been noticeable in the Philippines two divergent tendencies in the law of wills - the one being planted on strict construction and the other on liberal construction. A late example of the former views may be found in the decision in Rodriguez v Alcala (1930), 55 Phil 150, sanctioning a literal enforcement of the law. The basic rule in the other direction, predicated on reason, is Abangan v Abangan (1919), 40 Phil 476, oft-cited approvingly in later decisions."

In the Abangan case, a unanimous court, speaking through Mr. Justice Avanceña later Chief Justice, observed:

The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guarantee their truth and authenticity. Therefore, the law on this subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So, when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testator's last will, must be disregarded.

x x x

It is objected that "If we cure a deficiency by means of inferences, when are we going to stop making inferences to supply fatal deficiencies in wills? Where are we to draw the line?" These same questions might well have been asked by the opponents of the new trends in the cases above cited. But the so-called liberal rule does not offer any puzzle or difficulty, nor does it open the door to serious consequences. The later decisions do tell us when and where to stop; they draw the dividing line with precision. They do not allow evidence aliunde to fill a void in any part of the document or supply missing details that should appear in the will itself. They only permit a probe into the will, an exploration within its confines, to ascertain its meaning or to determine the existence or absence of the requisite formalities of law. This clear, sharp limitation eliminates uncertainty and ought to banish any fear of dire results.

The case at hand comes within the bounds thus defined. If the witnesses here purposely omitted or forgot to say that the testator signed the will in their presence, the testator said that he did and the witnesses by their signatures in the will itself said it was so. No extraneous proof was necessary and none was introduced or taken into consideration.

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To regard the letter rather than the spirit of the will and of the law behind it was the thing that led to unfortunate consequences. It was the realization of the injustice of the old way that impelled this court, so we believe, to forsake the antiquated, outworn worship of form in preference of substance. It has been said, and experience has shown, that the mechanical system of construction has operated more to defeat honest wills than prevent fraudulent ones. That, it must be conceded, would be the effect of this case if the will under consideration were rejected. For the adverse party now concedes the genuineness of the document. At any rate, the genuineness is super obvious, and there is not the slightest insinuation of undue pressure, mental incapacity of the testator, or fraud.

It is said that for the testator to certify that he signed the will in the witnesses' presence "would be like lifting one's self by his own bootstraps." The simile does not look to us quite well placed. There is no impossibility or impropriety in one attesting to his own act unless forbidden by rules of positive law. The rationale of this decision is that he is not. If we were to make a metaphorical comparison, it would be more correct to say that a man can generally does himself pull the bootstraps when he puts his boots on.

Coming to execution of wills, we see no legitimate, practical reason for objecting to the testator instead of the witnesses certifying that he signed the will in the presence of the latter. The will is of the testator's own making, the intervention of attesting witnesses being designed merely to protect his interest. If the sole purpose of the statute in requiring this intervention of witnesses is to make it certain that the testator has definite and complete intention to pass his property, and to prevent, as far as possible, any chance of substituting one instrument for another, what better guaranty of the genuineness of the will can there be than a certification by the testator himself in the body of the will, so long as the testator's signature is duly authenticated? Witnesses may sabotage the will by muddling and bungling it or the attestation clause. For the testator, who is desirous of making a valid will, to do so would be a contradiction. If the formalities are only a means to an end and not the end themselves, and that end is achieved by another method slightly different from the prescribed manner, what has been done by the testator and the witnesses in the execution of the instant will should satisfy both law and conscience.

x x x

Upon the foregoing consideration, the order of the probate court is affirmed with costs.

Paras, Feria, Montemayor, Bautista Angelo and Labrador, JJ., concur. Padilla and Reyes, JJ., dissent.

Jugo, J., with whom concur Pablo and Bengzon, JJ., dissenting:

I disent on the ground set forth in my opinion rendered in this case.

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CANEDA v COURT OF APPEALSG.R. No. 103554, 28 May 1993

222 SCRA 781

Caneda affirms the ruling in Gil v Murciano. However, the results of these two cases are divergent. Gil allowed the probate of the will, whereas Caneda disallowed the will. The factual difference between these two cases should be noted.

Regalado, J.:

Presented for resolution by this Court in the present petition for review on certiorari is the issue of whether or not the attestation clause contained in the last will and testament of the late Mateo Caballero complies with the requirements of Article 805, in relation to Article 809, of the Civil Code.

The records show that on December 5, 1978, Mateo Caballero, a widower without any children and already in the twilight years of his life, executed a last will and testament at his residence in Talisay, Cebu before three attesting witnesses, namely, Cipriano Labuca, Gregorio Cabando and Flaviano Toregosa. The said testator was duly assisted by his lawyer, Atty. Emilio Lumontad, and a notary public, Atty. Filoteo Manigos, in the preparation of that last will. It was declared therein, among other things, that the testator was leaving by way of legacies and devises his real and personal properties to Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of whom do not appear to be related to the testator.

Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed as Special Proceeding No. 3899-R before Branch II of the then Court of First Instance of Cebu seeking the probate of his last will and testament. The probate court set the petition for hearing on August 20, 1979 but the same and subsequent scheduled hearings were postponed for one reason or another. On May 29, 1980, the testator passed away before his petition could finally be heard by the probate court. On February 25, 1981, Benoni Cabrera, one of the legatees named in the will, sought his appointment as special administrator of the testator's estate, the estimated value of which was P24,000.00, and he was so appointed by the probate court in its order of March 6, 1981.

Thereafter, herein petitioners, claiming to be nephews and nieces of the testator, instituted a second petition entitled "In the Matter of the Intestate Estate of Mateo Caballero" and docketed as Special Proceeding No. 3965-R, before Branch IX of the aforesaid Court of First Instance of Cebu. On October 18, 1982, herein petitioners had their said petition for intestate proceedings consolidated with Special Proceeding No. 3899-R in Branch II of the Court of First Instance of Cebu and opposed thereat the probate of the testator's will and the appointment of a special administrator for his estate.

Benoni Cabrera died on February 8, 1982 hence the probate court, now

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known as Branch XV of the Regional Trial Court of Cebu, appointed William Cabrera as special administrator on June 21, 1983. Thereafter, on July 20, 1983, it issued an order for the return of the records of Special Proceeding No. 3965-R to the archives since the testate proceedings for the probate of the will had to be heard and resolved first. On March 26, 1984 the case was re-raffled and eventually assigned to Branch XII of the Regional Trial Court of Cebu where it remained until the conclusion of the probate proceedings.

x x x

On April 5, 1988, the probate court rendered a decision declaring the will in question as the last will and testament of the late Mateo Caballero, on the ratiocination that:

x x x The self-serving testimony of the two witnesses of the oppositors cannot overcome the positive testimonies of Atty. Filoteo Manigos and Cipriano Labuca who clearly told the Court that indeed Mateo Caballero executed his Last Will and Testament now marked Exhibit "C" on December 5, 1978. Moreover, the fact that it was Mateo Caballero who initiated the probate of his Will during his lifetime when he caused the filing of the original petition now marked as Exhibit "D" clearly underscores the fact that this was indeed his Last Will. x x x.

All told, it is the finding of this Court that Exhibit "C" is the Last Will and Testament of Mateo Caballero and that it was executed in accordance with all the requisites of law.

Undaunted by said judgment of the probate court, petitioners elevated the case to the Court of Appeals in CA-G.R. CV No. 19669. They asserted therein that the will in question is null and void for the reason that its attestation clause is fatally defective since it fails to specifically state that the instrumental witnesses to the will witnessed the testator signing the will in their presence and that they also signed the will and all the pages thereof in the presence of the testator and of one another.

On October 15, 1991, respondent court promulgated its decision affirming that of the trial court, and ruling that the attestation clause in the last will of Mateo Caballero substantially complied with Article 805 of the Civil Code, thus:

The question therefore is whether the attestation clause in question may be considered as having substantially complied with the requirements of Art. 805 of the Civil Code. What appears in the attestation clause which the oppositors claim to be defective is "we do certify that the testament was read by him and the testator, Mateo Caballero, has published unto us the foregoing will consisting of THREE PAGES, including the acknowledgment, each page numbered correlatively in letters on the upper part of each page, as his Last Will and Testament, and he has signed the same and every page thereof, on the spaces provided for his signature and on the left hand margin in the presence of the said testator and in the presence of each and all of us.

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To our thinking, this is sufficient compliance and no evidence need be presented to indicate the meaning that the said will was signed by the testator and by them (the witnesses) in the presence of all of them and of one another. Or as the language of the law would have it, that the testator signed the will "in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another." If not completely or ideally perfect in accordance with the wordings of Art. 805 but (sic) the phrase as formulated is in substantial compliance with the requirement of the law.

Petitioners moved for the reconsideration of said ruling of respondent court, but the same was denied in the latter's resolution of January 14, 1992, hence this appeal now before us.

x x x

We find the present petition to be meritorious, as we shall shortly hereafter explain, after some prefatory observations which we feel should be made in aid of the rationale for our resolution of the controversy.

1. x x x

An attestation clause refers to that part of an ordinary will whereby the attesting witnesses certify that the instrument has been executed before them and to the manner of the execution of the same. It is a separate memorandum or record of the facts surrounding the conduct of execution and once signed by the witnesses, it gives affirmation to the fact that compliance with the essential formalities required by law has been observed. It is made for the purpose of preserving in a permanent form a record of the facts that attended the execution of a particular will, so that in case of failure of the memory of the attesting witnesses, or other casualty, such facts may still be proved.

x x x

The purpose of the law in requiring the clause to state the number of pages on which the will is written is to safeguard against possible interpolation or omission of one or some of its pages and to prevent any increase or decrease in the pages; whereas the subscription of the signatures of the testator and the attesting witnesses is made for the purpose of authentication and identification, and thus indicates that the will is the very same instrument executed by the testator and attested to by the witnesses.

Further, by attesting and subscribing to the will, the witnesses thereby declare the due execution of the will as embodied in the attestation clause. The attestation clause, therefore, provides strong legal guaranties for the due execution of a will and to insure the authenticity thereof. As it appertains only to the witnesses and not to the testator, it need be signed only by them. Where it is left unsigned, it would result in the invalidation of the will as it would be possible and easy to add the clause on a

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subsequent occasion in the absence of the testator and the witnesses.

x x x

2. An examination of the will and testament of Mateo Caballero shows that it is comprised of three sheets all of which have been numbered correlatively, with the left margin of each page thereof bearing the respective signatures of the testator and the three attesting witnesses. The part of the will containing the testamentary dispositions is expressed in the Cebuano-Visayan dialect and is signed at the foot thereof by the testator. The attestation clause in question, on the other hand, is recited in the English language and is likewise signed at the end thereof by the three attesting witnesses thereto. Since it is the proverbial bone of contention, we reproduce it against for facility of reference:

We, the undersigned attesting Witnesses, whose Residences and postal addresses appear on the Opposite of our respective names, we do hereby certify that the Testament was read by him and the testator, MATEO CABALLERO, has published unto us the foregoing Will consisting of THREE PAGES, including the Acknowledgment, each page numbered correlatively in letters on the upper part of each page, as his Last Will and Testament and he has signed the same and every page thereof, on the spaces provided for his signature and on the left hand margin, in the presence of the said testator and in the presence of each and all of us.

It will be noted that Article 805 requires that the witnesses should both attest and subscribed to the will in the presence of the testator and of one another. "Attestation" and "subscription" differ in meaning. Attestation is the act of the senses, while subscription is the act of the hand. The former is mental, the latter mechanical, and to attest a will is to know that it was published as such, and to certify the facts required to constitute an actual and legal publication; but to subscribe a paper published as a will is only to write on the same paper the names of the witnesses, for the sole purpose of identification.

In Taboada v Rosal, we clarified that attestation consists in witnessing the testator's execution of the will in order to see and take note mentally that those things are done which the statute requires for the execution of a will and that the signature of the testator exists as a fact. On the other hand, subscription is the signing of the witnesses' names upon the same paper for the purpose of identification of such paper as the will which was executed by the testator. As it involves a mental act, there would be no means, therefore, of ascertaining by a physical examination of the will whether the witnesses had indeed signed in the presence of the testator and of each other unless this is substantially expressed in the attestation.

It is contended by petitioner that the aforequoted attestation clause, in contravention of the express requirements of the third paragraph of Article 805 of the Civil Code for attestation clauses, fails to specifically state the fact that the attesting witnesses witnessed the testator sign the will and all its pages in their presence and that they, the witnesses, likewise signed the will and every page thereof in the

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presence of the testator and of each other. We agree.

What is fairly apparent upon a careful reading of the attestation clause herein assailed is the fact that while it recites that the testator indeed signed the will and all its pages in the presence of the three attesting witnesses and states as well the number of pages that were used, the same does not expressly state therein the circumstance that said witness subscribed their respective signatures to the will in the presence of the testator and of each other.

The phrase "and he has signed the same and every page thereon, on the spaces provided for his signature and on the left hand margin," obviously refers to the testator and not the instrumental witnesses as it is immediately preceded by the words "as his Last Will and Testament." On the other hand, although the words "in the presence of the testator and in the presence of each and all of us" may, at first blush, appear to likely signify and refer to the witnesses, it must, however, be interpreted as referring only to the testator signing in the presence of the witnesses since said phrase immediately follows the words "he has signed the same and every page thereof, on the spaces provided for his signature and on the left hand margin." What is then clearly lacking, in the final logical analysis, is the statement that the witnesses signed the will and every page thereof in the presence of the testator and of one another.

It is our considered view that the absence of that statement required by law is a fatal defect or imperfection which must necessarily result in the disallowance of the will that is here sought to be admitted to probate. Petitioners are correct in pointing out that the aforestated defect in the attestation clause obviously cannot be characterized as merely involving the form of the will or the language used therein which would warrant the application of the substantial compliance rule, as contemplated in the pertinent provision thereon in the Civil Code, to wit: x x x.

While it may be true that the attestation clause is indeed subscribed at the end thereof and at the left margin of each page by the three attesting witnesses, it certainly cannot be conclusively inferred therefrom that the said witnesses affixed their respective signatures in the presence of the testator and of each other since, as petitioners correctly observed, the presence of said signatures only establishes the fact that it was indeed signed, but it does not prove that the attesting witnesses did subscribe to the will in the presence of the testator and of each other. The execution of a will is supposed to be one act so that where the testator and the witnesses sign on various days or occasions and in various combinations, the will cannot be stamped with the imprimatur of effectivity.

We believe that the following comment of former Justice J.B.L. Reyes regarding Article 809, wherein he urged caution in the application of the substantial compliance rule therein, is correct and should be applied in the case under consideration, as well as to future cases with similar questions:

x x x The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself; whether all the pages are consecutively numbered; whether the signatures appear in each and every

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page; whether the subscribing witnesses are three or the will was notarized. All these are facts that the will itself can reveal, and defects or even omissions concerning them in the attestation clause can be safely disregarded. But the total number of pages, and whether all persons required to sign did so in the presence of each other must substantially appear in the attestation clause, being the only check against perjury in the probate proceedings.

3. We stress once more that under Article 809, the defects or imperfections must only be with respect to the form of the attestation or the language employed therein. Such defects or imperfections would not render a will invalid should it be proved that the will was really executed and attested in compliance with Article 805. In this regard, however, the manner of proving the due execution and attestation has been held to be limited to merely an examination of the will itself without resorting to evidence aliunde, whether oral or written.

The foregoing considerations do not apply where the attestation clause totally omits the fact that the attesting witnesses signed each and every page of the will in the presence of the testator and of each other. In such a situation, the defects is not only in the form or in the language of the attestation clause but the total absence of a specific element required by Article 805 to be specifically stated in the attestation clause of a will. That is precisely the defect complained of in the present case since there is no plausible way by which we can read into the questioned attestation clause any statement, or an implication thereof, that the attesting witnesses did actually bear witness to the signing by the testator of the will and all its pages and that said instrumental witnesses also signed the will and every page thereof in the presence of the testator and of one another.

Furthermore, the rule on substantial compliance in Article 809 cannot be invoked or relied on by respondents since it presupposes that the defects in the attestation clause can be cured or supplied by the text of the will or a consideration of matters apparent therefrom which would provide the data not expressed in the attestation clause or from which it may necessarily be gleaned or clearly inferred that the acts not stated in the omitted textual requirements were actually complied with in the execution of the will. In other words, the defects must be remedied by intrinsic evidence supplied by the will itself.

In the case at bar, contrarily, proof of the acts required to have been performed by the attesting witnesses can be supplied only by extrinsic evidence thereof, since an overall appreciation of the contents of the will yields no basis whatsoever from which such facts may be plausibly deduced. What private respondent insists on are the testimonies of his witnesses alleging that they saw the compliance with such requirements by the instrumental witnesses, oblivious of the fact that he is thereby resorting to extrinsic evidence to prove the same and would accordingly be doing by indirection what in law he cannot do directly.

x x x

It may thus be stated that the rule, as it now stands, is that omission which can

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be supplied by an examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the allowance to probate of the will being assailed. However, those omissions which cannot be supplied except by evidence aliunde would result in the invalidation of the attestation clause and ultimately of the will itself.

WHEREFORE, the petition is hereby GRANTED and the impugned decision of the respondent court is hereby REVERSED and SET ASIDE. The court a quo is accordingly directed to forthwith DISMISS its Special Proceeding No. 3899-R (Petition for the Probate of the Last Will and Testament of Mateo Caballero) and to REVIVE Special Proceedings No. 3965-R (In the Matter of the Intestate Estate of Mateo Caballero) as an active case and thereafter duly proceed with the settlement of the estate of the said decedent.

Narvasa (C.J., Chairman), Padilla, and Nocon, JJ., concur.

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ROXAS v DE JESUS, JR.No. L-38338, 28 January 1985

134 SCRA 245

Article 810 of the Civil Code requires, among others, that a holographic will be dated. While a complete date is generally required, an incomplete date which sets forth only the month and the year of execution, is not a fatal defect if it can be shown that there was no bad faith, fraud, and undue and improper influence and pressure. Probate is further justified if the genuineness of the handwriting of the testator is proved, or otherwise admitted by the parties, and the only ground for opposing probate is the technicality resulting from an incomplete date. Roxas explains the reason for requiring a holographic will to be dated.

Gutierrez, Jr., J.:

After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus, Special Proceedings No. 81503 entitled "In the Matter of the Intestate Estate of Andres G. de Jesus and Bibiana Roxas de Jesus" was filed by petitioner Simeon R. Roxas, the brother of the deceased Bibiana Roxas de Jesus.

x x x petitioner Simeon R. Roxas was appointed administrator. After Letters of Administration had been granted to the petitioner, he delivered to the lower court a document purporting to be the holographic will of the deceased Bibiana de Jesus.

On May 26, 1973, respondent Judge Jose Colayco set the hearing of the probate of the holographic will in July 21, 1973.

Petitioner Simeon R. Roxas testified that after his appointment as administrator, he found a notebook belonging to the deceased Bibiana Roxas de Jesus and that on pages 21, 22, 23 and 24 thereof, a letter-will addressed to her children entirely written and signed in the handwriting of the deceased Bibiana R. de Jesus, was found. This will is dated "FEB./61" and states: "this is my will which I want to be respected altho it is not written by a lawyer. x x x."

The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro Roxas de Jesus and Manuel Roxas de Jesus who likewise testified that the letter dated "FEB./61" is the holographic will of their deceased mother, Bibiana R. de Jesus. Both recognized the handwriting of their mother and positively identified her signature. They further testified that their deceased mother understood English, the language in which the holographic will is written, and that the date "FEB./61" was the date when the said will was executed by their mother.

Respondent Luz R. Henson, another compulsory heir, filed an "opposition to probate" assailing the purported holographic will of Bibiana R. de Jesus because (a) it was not executed in accordance with law, (b) it was executed through force, intimidation and/or under duress, undue influence and improper pressure, and (c) the alleged testatrix acted by mistake and/or did not intend, nor could have intended said

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will to be her last will and testament at the time of its execution.

` On August 24, 1973, respondent Judge Jose C. Colayco issued an order allowing the probate of the holographic will which he found to have been executed in accordance with law.

Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging inter alia that the alleged holographic will of the deceased Bibiana R. de Jesus was not dated as required by Article 810 of the Civil Code. She contends that the law requires that the will should contain the day, month and year of its execution and that this should be strictly complied with.

On December 10, 1973, respondent Judge Jose Colayco reconsidered his earlier order and disallowed the probate of the holographic will on the ground that the word "dated" has generally been held to include the month, day and year. The dispositive portion of the order reads:

x x x

The only issue is whether of not the date "FEB./61" appearing on the holographic will of the deceased Bibiana Roxas de Jesus is a valid compliance with Article 810 of the Code which reads:

x x x

The petitioners contend that while Article 685 of the Spanish Civil Code and Article 688 of the Old Civil Code require the testator to state in his holographic will the "year, month and day of its execution," the present Civil Code omitted the phrase "Ano. mes y dia" and simply required that the holographic will should be dated. The petitioners submit that the liberal construction of the holographic will should prevail.

Respondent Luz Henson on the other hand submits that the purported holographic will is void for non-compliance with Article 810 of the Civil Code in that the date must contain the year, month and day of its execution. The respondent contends that Article 810 of the Civil Code was patterned after Section 1277 of the California Code and Section 1588 of the Louisiana Code whose Supreme Court had consistently ruled that the required date includes the year, month and day, and that if any of these is wanting, the holographic will is invalid. The respondent further contends that the petitioner cannot plead liberal construction of Article 810 of the Civil Code because statutes prescribing the formalities to be observed in the execution of holographic wills are strictly construed.

We agree with the petitioner.

This will not be the first time that this Court departs from a strict and literal application of the statutory requirements regarding the due execution of wills. We should not overlook the liberal trend of the Civil Code in the manner of execution of

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wills, the purpose of which, in case of doubt, is to prevent intestacy -

The underlying and fundamental objectives permeating the provisions of the law on wills in this Project consists in the liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing his last wishes, but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator.

This objective is in accord with the modern tendency with respect to the formalities in the execution of wills. (Report of the Code Commission, p. 103.)

Thus, the prevailing policy is to require satisfaction of the legal requirement in order to guard against fraud and bad faith but without undue or unnecessary curtailment of testamentary privilege (Icasiano v Icasiano, 11 SCRA 422). If a will has been executed in substantial compliance with the formalities of the law, and the possibility of bad faith and fraud in the exercise thereof is obviated, said will should be admitted to probate (Rey v Cartagena, 56 Phil 282).

x x x

If the testator, in executing his will, attempts to comply with all the requisites, although compliance is not literal, it is sufficient if the objective or purpose sought to be accomplished by such requisite is actually attained by the form followed by the testator.

The purpose of the solemnities surrounding the execution of wills has been expounded by this Court in Abangan v Abangan, 40 Phil 476, where we ruled that:

The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity.

In particular, a complete date is required to provide against such contingencies as that of two competing wills executed on the same day, or if a testator becoming insane on the day on which a will was executed (Velasco v Lopez, 1 Phil 720). There is no such contingency in this case.

We have carefully reviewed the records of this case and found no evidence of bad faith and fraud in its execution nor was there any substitution of wills and testament. There is no question that the holographic will of the deceased Bibiana Roxas de Jesus was entirely written, dated and signed by the testatrix herself and in a language known to her. There is also no question as to its genuineness and due execution. All the children of the testatrix agree on the genuineness of the holographic will of their mother and that she had the testamentary capacity at the time of the execution of said will. The objection interposed by the oppositor-respondent Luz Henson is that the holographic will is fatally defective because the date "FEB./61" appearing on the holographic will is not sufficient compliance with Article 810 of the

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Civil Code. This objection is too technical to be entertained.

As a general rule, the "date" in a holographic will should include the day, month and year of its execution. However, when as in the case at bar, there is no appearance of fraud, bad faith, undue influence and pressure and the authenticity of the will is established and the only issue is whether or not the date "FEB./61" appearing on the holographic will is a valid compliance with Article 810 of the Civil Code, probate of the holographic will should be allowed under the principle of substantial compliance.

WHEREFORE, the instant petition is GRANTED. The order appealed from is REVERSED and SET ASIDE and the order allowing the probate of the holographic will of the deceased Bibiana Roxas de Jesus is reinstated.

SO ORDERED.

Teehankee (Chairman), Melencio-Herrera, Plana, Relova and de la Fuente, JJ., concur.

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LABRADOR V COURT OF APPEALSNo. L-83843-44, 5 April 1990

184 SCRA 170

The required date which must be indicated in a holographic will is substantially complied with if the date were incorporated as part of the body of the will.

Paras, J.:

The antecedent and relevant facts are as follows: On June 10, 1972, Melecio Labrador died in the Municipality of Iba, Province of Zambales, where he was residing, leaving behind a parcel of land designated as Lot No. 1916 under Original Certificate of Title No. P-1652, and the following heirs, namely: Sagrado, Enrica, Cristobal, Jesus, Gaudencio, Josefina, Juliana, Hilaria and Jovita, all surnamed Labrador, and a holographic will.

On July 28, 1975, Sagrado Labrador (now deceased but substituted by his heirs), and Enrica Labrador and Cristobal Labrador filed in the court a quo a petition for the probate docketed as Special Proceeding No. 922-I of the alleged holographic will of the late Melecio Labrador.

Subsequently, on September 30, 1975, Jesus Labrador (now deceased but substituted by his heirs), and Gaudencio Labrador filed an opposition to the petition on the ground that the will has been extinguished or revoked by implication of law, alleging therein that on September 30, 1971, that is, before Melecio's death, for the consideration of Six Thousand (P6,000) Pesos, testator Melecio executed a Deed of Absolute Sale, selling, transferring and conveying in favor of oppositors Jesus and Gaudencio Lot No. 1916 and that as a matter of fact, O.C.T. No. P-1652 had been canceled by T.C.T. No. T-21178. Earlier, however, in 1973, Jesus Labrador sold the said parcel of land to Navat for only Five Thousand (P5,000) Pesos.

Sagrado thereupon filed, on November 28, 1975, against his brothers, Gaudencio and Jesus, for the annulment of said purported Deed of Absolute Sale over a parcel of land which Sagrado alleged had (sic) already acquired by devise from their father Melecio Labrador under a holographic will executed on March 17, 1968, the complaint for annulment docketed as Civil Case No. 934-I, being premised on the fact that the aforesaid Deed of Absolute Sale is fictitious.

After both parties have rested and submitted their respective evidence, the trial court rendered a joint decision dated February 28, 1985, allowing the probate of the holographic will and declaring null and void the Deed of Absolute Sale. The court a quo had also directed the respondents (the defendants in Civil Case No. 934-I) to reimburse to the petitioners the sum of P5,000.00 representing the redemption price for the property paid by the plaintiff-petitioner Sagrado with legal interest thereon from December 20, 1976, when it was paid to vendee a retro.

Respondents appealed the joint decision to the Court of Appeals, which on

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March 10, 1988 modified said joint decision of the court a quo by denying the allowance of the probate of the will for being undated and reversing the order of reimbursement. Petitioner's Motion for Reconsideration of the aforesaid decision was denied by the Court of Appeals, in the resolution of June 13, 1988. Hence this petition.

The alleged undated holographic will was written in Ilocano translated into English, is quoted as follows:

English Interpretation of the Will of the Late Melecio LabradorWritten in Ilocano

By Atty. Fidencio L. Fernandez

I. First Page

This is also where it appears in writing of the place which is assigned and shared or the partition in favor of Sagrado Labrador which is the fishpond located and known place as Tagale.

And this place that is given as the share to him, there is a measurement of more or less one hectare, and the boundary at the South is the property and assignment share of Enrica Labrador, also their sister, and the boundary in the West is the sea, known as the Sea as it is, and the boundary on the North is assignment belonging to Cristobal Labrador, who likewise is also their brother. That because it is now the time for me being now ninety three (93) years then I feel it is the right time for me to partition the fishponds which were and had been bought or acquired by us, meaning with their two mothers, hence there shall be no difference among themselves, those among brothers and sisters, for it is I myself their father who am making the apportionment and delivering to each and everyone of them the said portion and assignment so that there shall not be any cause of troubles or differences among the brothers and sisters.

II. Second Page

And this is the day in which we agree that we are making the partitioning and assigning the respective assignment of the said fishpond, and this being in the month of March, 17th day, in the year 1968, and this decision and or instruction of mine is the matter to be followed. And the one who made this writing is no other than Melecio Labrador, their father.

Now, this is the final disposition that I am making in writing and it is this that should be followed and complied with in order that any differences or troubles may be forestalled and nothing will happen along these troubles among my children, and that they will be in good relations among themselves, brothers and sisters.

And those improvements and fruits of the land; mangoes, bamboos and all coconut trees and all others like the other kind of bamboo by name of Bayog, it is their right to get if they so need, in order that there shall be nothing that anyone of them shall complain against the other, and against anyone of the

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brothers and sisters.III. Third Page

And that referring to the other places of property, where the said property is located, the same being the fruits of our earnings of the two mothers of my children, there shall be equal portion of each share among themselves, and or to be benefited with all those property, which property we have been able to acquire.

That in order that there shall be basis of the truth of this writing (will) which I am here hereof manifesting of the truth and of the fruits of our labor which their two mothers, I am signing my signature below hereof, and that this is what should be complied with, by all the brothers and sisters, the children of their two mothers - Juliana Quintero Pilarisa and Casiana Aquino Villanueva. Your father who made this writing (will), and he is Melecio Labrador y Ralutin.

The petition, which principally alleges that the holographic will is really dated, although the date is not in its usual place, is impressed with merit.

The will has been dated in the hand of the testator himself in perfect compliance with Article 810. It is worthy of note to quote the first paragraph of the second page of the holographic will, viz:

And this day in which we agreed that we are making the partitioning and assigning the respective assignment of the said fishpond, and this being in the month of March, 17th day, in the year 1968, and this decision and or instruction of mine is the matter to be followed. And the one who made this writing is no other than Melecio Labrador, their father.

The law does not specify a particular location where the date should be placed in the will. The only requirements are that the date be in the will itself and executed in the hand of the testator. Those requirements are present in the subject will.

Respondent claim that the date 17 March 1968 in the will was when the testator and his beneficiaries entered into an agreement among themselves about "the partitioning and assigning the respective assignment of the said fishpond," and was not the date of execution of the holographic will; hence the will is more of an "agreement" between the testator and the beneficiaries thereof to the prejudice of other compulsory heirs like the respondents. This was thus a failure to comply with Article 783 which defines a will as "an act whereby a person is permitted with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death."

Respondents are in error. The intention to show 17 March 1968 as the date of execution of the will is plain from the tenor of the succeeding words of he paragraph. As aptly put by petitioner, the will was not an agreement but a unilateral act of Melecio Labrador who plainly knew that what he was executing was a will. The act of partitioning and the declaration that such partitioning as the testator's instruction or decision to be followed reveal that Melecio Labrador was fully aware of the nature of

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the estate property to be disposed of and of the character of the testamentary act as a means to control the disposition of his estate.

x x x

PREMISES CONSIDERED, the decision of the Court of Appeals dated March 10, 1988 is hereby REVERSED. The holographic will of Melecio Labrador is APPROVED and ALLOWED probate. SO ORDERED.

Melencio-Herrera (Chairman), Padilla, Sarmiento and Regalado, JJ., concur.

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GAN v YAPNo. L-12190, 30 August 1958

104 Phil 509

Article 811 prescribes the evidence required for the probate of a holographic will. Gan stresses that if the holographic will sought to be probated is lost, or otherwise cannot be presented in court, the same must be denied probate. This is so because the only guarantee of authenticity (i.e., the handwriting of the testator) is not available for scrutiny. It is equally important to take notice of footnote no. 8 of the decision, which is the basis of the ruling in the subsequent case of Rodelas v Aranza.

Bengzon, J.:

On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure x x x leaving properties in Pulilan, Bulacan, and in the City of Manila.

On March 17, 1952, Fausto E. Gan instituted these proceedings in the Manila court of first instance with a petition for probate of a holographic will allegedly executed by the deceased x x x.

Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not left any will, nor executed any testament during her lifetime.

After hearing the parties and considering their evidence, the Honorable Ramon R. San Jose, Judge, refused to probate the alleged will. A seventy-page motion for reconsideration failed. Hence this appeal.

The will was not presented. Petitioner tried to establish its contents and due execution by the statements in open court of Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan Jimenez, whose testimonies may be summarized as follows.

Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first cousin, Vicente Esguerra, her desire to make a will. She confided however that it would be useless if her husband discovered or knew about it. Vicente consulted with Fausto E. Gan, nephew of Felicidad, who was then preparing for the bar examinations. The latter relied it could be done without any witness, provided the document is entirely in her handwriting, signed and dated by her. Vicente Esguerra lost no time in transmitting the information, and on the strength of it, in the morning of November 5, 1951, in her residence at Juan Luna Street, Manila, Felicidad wrote, signed and dated a holographic will substantially of the tenor above transcribed in the presence of her niece, Felina Esguerra (daughter of Vicente), who was invited to read it. In the afternoon of that day, Felicidad was visited by a distant relative, Primitivo Reyes, and she allowed him to read the will in the presence of Felina Esguerra, who again read it.

Nine days later, he (sic) had other visitors: Socorro Olarte, a cousin, and

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Rosario Gan Jimenez, a niece. To these she showed the will, again in the presence of Felina Esguerra, who read it for the third time.

When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last illness, she entrusted the said will, which was contained in a purse, to Felina Esguerra. But a few hours later, Ildefonso Yap, her husband, asked Felina for the purse; and being afraid of him by reason of his well-known violent temper, she delivered it to him. Thereafter, in the same day, Ildefonso Yap returned the purse to Felina, only to demand it the next day shortly before the death of Felicidad. Again Felina handed it to him but not before she had taken the purse to the toilet, opened it and read the will for the last time.

From the oppositor's proof it appears that Felicidad Esguerra had been suffering from heart disease for several years before her death; that she had been treated by prominent physicians, Dr. Agerico Sison, Dr. Agustin Liboro and others; that in May 1950 husband and wife journeyed to the United States wherein for several weeks she was treated for the disease; that thereafter she felt well and after visiting interesting places, the couple returned to this country in August 1950. However, her ailment recurred, she suffered several attacks, the most serious of which happened in the early morning of the first Monday of November 1951 (November 5). The whole household was surprised and alarmed, even the teachers of the Harvardian Colleges occupying the lower floors and owned by the Yap spouses. Physician's help was hurriedly called, and Dr. Tanjuaquio arrived at about 8:00 a.m., found the patient hardly breathing, lying in bed, her head held high by her husband. Injections and oxygen were administered. Following the doctor's advise the patient stayed in bed, and did nothing the whole day, her husband and her personal attendant, Mrs. Bantigue, constantly at her side. These two persons swore that Mrs. Felicidad Esguerra Yap made no will, and could have made no will on that day.

The trial judge refused to credit the petitioner's evidence for several reasons, the most important of which were these: (a) if according to his evidence, the decedent wanted to keep her will a secret, so that her husband would not know it, it is strange that she executed it in the presence of Felina Esguerra, knowing as she did that witnesses were unnecessary; (b) in the absence of a showing that Felina was a confidant of the decedent it is hard to believe that the latter would allow the former to see and read the will several times; (c) it is improbable that the decedent would have permitted Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte to read her will, when she precisely wanted its contents to remain a secret during her lifetime; (d) it is also improbable that her purpose being to conceal the will from her husband she would carry it around, even to the hospital, in her purse which could for one reason of another be opened by her husband; (e) if it is true that the husband demanded the purse from Felina in the U.S.T. Hospital and that the will was there, it is hard to believe that he returned it without destroying the will, the theory of the petitioner being precisely that the will was executed behind his back for fear he will destroy it.

In the face of these improbabilities, the trial judge had to accept the oppositor's evidence that Felicidad did not and could not have executed such holographic will.

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x x xNow, in the matter of holographic wills, no such guaranties of truth and veracity

are demanded, since as stated, they need no witnesses; provided however, that they are "entirely written, dated and signed by the hand of the testator himself." The law, it is reasonable to suppose, regards the document itself as material proof of authenticity, and as its own safeguard, since it could at any time, be demonstrated to be - or not to be - in the hands of the testator himself. "In the probate of a holographic will" says the New Civil Code, "it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three such witnesses shall be required. In the absence of any such witnesses familiar with decedent's handwriting, and if the court deem it necessary, expert testimony may be resorted to."

The witnesses so presented do not need to have seen the execution of the holographic will. They may be mistaken in their opinion of the handwriting, or they may deliberately lie in affirming it is in the testator's hand. However, the oppositor may present other witnesses who also know the testator's handwriting, or some expert witnesses who, after comparing the will with other writings or letters of the deceased, have come to the conclusion that such will has not been written by the hand of the deceased. And the court, in view of such contradictory testimony, may use its own visual sense, and decide in the face of the document, whether the will submitted to it has indeed been written by the testator.

Obviously, when the will itself is not submitted, these means of opposition, and of assessing the evidence are not available. And then the only guaranty of authenticity - the testator's handwriting - has disappeared.

Therefore, the question presents itself, may a holographic will be probated upon the testimony of witnesses who have allegedly seem it and who declare that it was in the handwriting of the testator? How can the oppositor prove that such document was not in the testator's handwriting? His witnesses who know the testator's handwriting have not examined it. His experts cannot testify because there is no way to compare the alleged testament with other documents admittedly, or proven to be, in the testator's hand. The oppositor will, therefore, be caught between the upper millstone of his lack of knowledge of the will or the form thereof, and the nether millstone of his inability to prove its falsity. Again, the proponent's witnesses may be honest and truthful; but they may have been shown a fake document, and having no interest to check the authenticity thereof have taken no pains to examine and compare. Or they may be perjurers boldly testifying, in the knowledge that none could convict them of perjury, because no one could prove that they have not "been shown" a document which they believed was in the handwriting of the deceased. Of course, the competency of such perjured witnesses to testify as to the handwriting could be tested by exhibiting to them other writings sufficiently similar to those written by the deceased; but what witness or lawyer would not foresee such a more and prepare for it? His knowledge of the handwriting established, the witness (or witnesses) could

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simply stick to his statement: he has seen and read a document which he believed was in the deceased's handwriting. And the court and the oppositor would practically be at the mercy of such witness (or witnesses) not only as to the execution, but also as to the contents of the will. Does the law permit such a situation?

The Rules of Court, (Rule 77) approved in 1940, allow proof (and probate) of a lost or destroyed will by secondary evidence - the testimony of witnesses, in lieu of the original document. Yet such Rules could not have contemplated holographic wills which could not then be validly made here.

Could Rule 77 be extended, by analogy, to holographic wills?

Spanish commentators agree that one of the greatest objections to the holographic wills is that it may be lost or stolen, an implied admission that such loss or theft renders it useless.

This must be so, because the Civil Code requires it to be protocoled and presented to the Judge, (Art. 689) who shall subscribe it and require its identity to be established by the three witnesses who depose that they have no reasonably doubt that the will was written by the testator (Art. 691). And if the judge considers that the identity of the will has been proven he shall order that it be filed (Art. 693). All these, imply presentation of the will itself. Art. 692 bears the same implication, to a greater degree. It requires that the surviving spouse and the legitimate ascendants and descendants be summoned so that they may make "any statement they may desire to submit with respect to the authenticity of the will." As it is universally admitted that the holographic will is usually done by the testator and by himself alone, to prevent others from knowing either its execution or its contents, the above article 692 could not have the idea of simply permitting such relatives to state whether they know of the will, but whether in the face of the document itself they think the testator wrote it. Obviously, this they can't do unless the will itself is presented to the Court and to them.

Undoubtedly, the intention of the law is to give the near relatives the choice of either complying with the will if they think it authentic, or to oppose it, if they think it spurious. Such purpose is frustrated when the document is not presented for their examination. If it be argued that such choice is not essential, because anyway the relatives may oppose, the answer is that their opposition will be at a distinct disadvantage, and they have the right and privilege to comply with the will, if genuine, a right which they should not be denied by withholding inspection thereof from them.

We find confirmation of these ideas - about exhibition of the document itself - in the decision of the Supreme Court of Spain of June 5, 1925, which denied protocolization or probate to a document containing testamentary dispositions in the handwriting of the deceased, but apparently mutilated, the signature and some words having been torn from it. Even in the face of allegations and testimonial evidence (which was controverted), ascribing the mutilation to the opponents of the will. The aforesaid tribunal declared that, in accordance with the provision of the Civil Code (Spanish) the will itself, whole and unmutilated, must be presented; otherwise, it shall

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produce no effect.

x x x

All of which can only mean: the courts will not distribute the property of the deceased in accordance with his holographic will, unless they are shown his handwriting and signature.

Parenthetically, it may be added that even the French Civil Law considers the loss of the holographic will to be fatal.

Taking all the above circumstances together, we reach the conclusion that the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will.1

x x x

At this point, before proceeding further, it might be convenient to explain why, unlike holographic wills, ordinary wills may be proved by testimonial evidence when lost or destroyed. The difference lies in the nature of the wills. In the first, the only guarantee of authenticity is the handwriting itself; in the second, the testimony of the subscribing and instrumental witnesses (and of the Notary, now). The loss of the holographic will entails the loss of the only medium of proof; if the ordinary will is lost, the subscribing witnesses are available to authenticate.

In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary) deliberately to lie. And then their lies could be checked and exposed, their whereabouts and acts on the particular day, the likelihood that they would be called by the testator, their intimacy with the testator, etc. And if they were intimates or trusted friends of the testator, they are not likely to lend themselves to any fraudulent scheme to distort his wishes. Last but not the least, they cannot receive anything on account of the will.

Whereas in the case of holographic wills, if oral testimony were admissible, only one man could engineer the whole fraud this way: after making a clever or passable imitation of the handwriting and signature of the deceased, he may contrive to let three honest and credible witnesses see and read the forgery; and the latter, having no interest, could easily fall for it, and in court they would in all good faith affirm its genuineness and authenticity. The will having been lost - the forger may have purposely destroyed it in an "accident" - the oppositors have no way to expose the trick and the error, because the document itself is not at hand. And considering that the holographic will may consist of two or three pages, and only one of them need be signed, the substitution of the unsigned pages, which may be the most important ones, may go undetected.

1    ?Perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court.

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If testimonial evidence of holographic wills be permitted, one more objectionable feature - feasibility of forgery - would be added to the several objections of this kind of wills listed by Castan, Sanchez Roman and Valverde and other well-known Spanish commentators and teachers of Civil Law.

One more fundamental difference: in the case of a lost will, the three subscribing witnesses would be testifying to a fact which they saw, namely, the act of the testator of subscribing the will; whereas in the case of a lost holographic will, the witnesses would testify as to their opinion of the handwriting which they allegedly saw, an opinion which cannot be tested in court, nor directly contradicted by the oppositors, because the handwriting itself is not at hand.

Turning now to the evidence by the petitioner, we find ourselves sharing the trial judge's disbelief. In addition to the dubious circumstances described in the appealed decision, we find it hard to believe that the deceased should show her will precisely to relatives who had received nothing from it: Socorro Olarte and Primitivo Reyes. These could pester her into amending her will to give them a share, or threaten to reveal its execution to her husband Ildefonso Yap. And this leads to another point: if she wanted so much to conceal the will from her husband, why did she not entrust it to her beneficiaries? Opportunity to do so was not lacking: for instance, her husband's trip to Davao, a few days after the alleged execution of the will.

In fine, even if oral testimony were admissible to establish and probate a lost holographic will, we think the evidence submitted by herein petitioner is so tainted with improbabilities and inconsistencies that it fails to measure up to that "clear and distinct" proof required by Rule 76, sec. 6.

Wherefore, the rejection of the alleged will must be sustained.

Judgment affirmed, with cost against petitioner.

Paras, C.J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes, J.B.L., Endencia and Felix, JJ., concur.

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RODELAS v ARANZANo. L-58509, 7 December 1982

119 SCRA 16

Rodelas traces its antecedents to Gan v Yap, particularly in footnote no. 8 of the latter decision. In an obiter incorporated through a footnote, the court noted in Gan that a lost holographic will might be proved through a "photographic or photostatic copy" thereof, or perhaps even through a "mimeographed or carbon copy". Accordingly, the court in Rodelas reversed the order of the lower court dismissing the petition for probate (as well as the motion for reconsideration) by reason of the proponent's inability to produce the original copy of the alleged lost holographic will. It must be noted that Rodelas did not categorically rule on the admissibility to probate of a secondary evidence of the missing holographic will. It must be noted further that the dispositive portion of the decision ended at the point where the denial of the motion for reconsideration was set aside. It would seem that the logical result of such "setting aside" of the order would be the remanding of the case to the court of origin for further proceedings in accordance with the aforesaid decision.

One final note: the court observed that with a photocopy of the lost or missing holographic will, the handwriting of the testator can be authenticated. This observation must be tested in the light of established principles governing the authentication of questioned documents, for it is sufficiently clear that an analysis of the handwriting of the testator based on a photocopy of the lost or missing holographic will cannot go beyond a comparison of strokes with an accepted standard. Circumstances such as speed of writing and the pressure of the handwriting cannot be tested based on a photocopy of the questioned document.

What added value did Rodelas give to existing jurisprudence on the matter?

Relova, J.:

x x x

The only question here is whether a holographic will which was lost or cannot be found can be proved by means of a photostatic copy. Pursuant to Article 811 of the Civil Code, probate of holographic wills is the allowance of the will by the court after its due execution has been proved. The probate may be uncontested or not. If uncontested, at least one identifying witness is required and, if no witness is available, experts may be resorted to. If contested, at least three identifying witnesses are required. However, if the holographic will has been lost or destroyed and no other copy is available, the will cannot be probated because the best and only evidence is the handwriting of the testator in said will. It is necessary that there be a comparison between sample handwritten statements of the testator and the handwritten will. But a photostatic copy or xerox copy of the holographic will may be allowed because comparison can be made with the standard writings of the testator. In the case of Gan v Yap, 104 Phil 509, the Court ruled that "the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who

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have seen and/or read such will. The will itself must be presented; otherwise it shall produce no effect. The law regards the document itself as material proof of authenticity." But in Footnote 8 of said decision, it says that "perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court." Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be admitted because then, the authenticity of the handwriting of the deceased can be determined by the probate court.

WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's motion for reconsideration dated August 9, 1979, of the Order dated July 23, 1979 dismissing her petition to approve the will of the late Ricardo B. Bonilla, is hereby set aside.

SO ORDERED.

Teehankee, Actg. C.J., Melencio-Herrera, Plana, Vasquez and Gutierrez, Jr., JJ., concur.

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AZAOLA v SINGSONNo. L-14003, 5 August 1960

109 Phil 102

The case involves an interpretation of the three-witness rule required under the first paragraph of Article 811. The ruling distinguishes between the execution of a notarial will on the one hand, and the execution of a holographic will on the other. Based on the difference in the formalities required, the court inferred that the first paragraph of Article 811 is merely directory, and that to give it a mandatory tenor may result in legal absurdities.

Reyes, J.B.L., J.:

This appeal, taken on points of law from a decision rendered on 15 January 1958 by the Court of First Instance of Quezon City in its Special Proceedings No. Q-2640, involves the determination of the quantity of evidence for the probate of a holographic will.

x x x

The opposition to the probate was on the ground that (1) the execution of the will was procured by undue and improper pressure and influence on the part of the petitioner and his wife, and (2) that the testatrix did not seriously intend the instrument to be her last will, and that the same was actually written either on the 5th or 6th of August and not on November 20, 1956 as appears on the will.

The probate was denied on the ground that under Article 811 of the Civil Code, the proponent must present three witnesses who could declare that the will and the signature are in the writing of the testatrix, the probate being contested; and because the lone witness presented by the proponent "did not prove sufficiently that the body of the will was written in the handwriting of the testatrix."

The proponent appealed, urging: first, that he was not bound to produce more than one witness because the will's authenticity was not questioned; and second, that Article 811 does not mandatorily require the production of three witnesses to identify the handwriting and signature of a holographic will, even if its authenticity should be denied by the adverse party.

x x x

We agree with the appellant that since the authenticity of the will was not contested, he was not required to produce more than one witness; but even if the genuineness of the holographic will were contested, we are of the opinion that Article 811 of our present Civil Code cannot be interpreted as to require the compulsory presentation of three witnesses to identify the handwriting of the testator, under penalty of having the probate denied. Since no witness may have been present at the execution of a holographic will, none being required by law (Article 810, new Civil

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Code), it becomes obvious that the existence of witnesses possessing the requisite qualifications is a matter beyond the control of the proponent. For it is not merely a question of finding and producing any three witnesses; they must be witnesses "who know the handwriting and signature of the testator" and who can declare (truthfully, of course, even if the law does not so express) "that the will and the signature are in the handwriting of the testator." There may be no available witness acquainted with the testator's hand; or even if so familiarized, the witnesses may be unwilling to give a positive opinion. Compliance with the rule of paragraph 1 of Article 811 may thus become an impossibility. That is evidently the reason why the second paragraph of Article 811 prescribes that -

in the absence of any competent witness referred to in the preceding paragraph, and if the court deems it necessary, expert testimony may be resorted to.

x x x

It may be true that the rule of this article (requiring that three witnesses be presented if the will is contested and only one if no contest is had) was derived from the rule established for ordinary testaments. But it cannot be ignored that the requirement can be considered mandatory only in the case of ordinary testaments, precisely because the presence of at least three witnesses at the execution of ordinary wills is made by law essential to their validity. Where the will is holographic, no witness need be present and the rule requiring production of three witnesses must be deemed merely permissive if absurd results are to be avoided.

Again, under Article 811, the resort to expert evidence is conditioned by the words "if the court deem it necessary," which reveal that what the law deems essential is that the court should be convinced of the will's authenticity. Where the prescribed number of witnesses is produced and the court is convinced by their testimony that the will is genuine, it may consider it unnecessary to call for expert evidence. On the other hand, if no competent witness is available, or none of those produced is convincing, the court may still, and in fact it should, resort to handwriting experts. The duty of the court, in fine, is to exhaust all available lines of inquiry, for the state is as much interested as the proponent that the true intention of the testator be carried into effect.

x x x

And because the law leaves it to the trial court to decide if experts are still needed, no unfavorable inference can be drawn from a party's failure to offer expert evidence, until and unless the court expresses dissatisfaction with the testimony of the lay witnesses.

Our conclusion is that the rule of the first paragraph of Article 811 of the Civil Code is merely directory and is not mandatory.

Considering, however, that this is the first occasion in which this Court has been called upon to construe the import of said article, the interest of justice would be

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better served, in our opinion, by giving the parties ample opportunity to adduce additional evidence, including expert witnesses, should the court deem them necessary.

In view of the foregoing, the decision appealed from is set aside, and the records ordered remanded to the court of origin, with instructions to hold new trial in conformity with this opinion. But evidence already on record shall not be retaken. No costs.

Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Barrera and Gutierrez David, JJ., concur.

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CODOY v CALUGAYG.R. No. 123486, 12 August 1999

312 SCRA 333

Codoy is an unusual case with an unusual decision. The bone of contention between the parties was whether or not the oppositors to the probate of a will may yet present evidence against the admission of the will, after they have unsuccessfully made a demurrer to evidence. In short, the core issue is whether the oppositors should be allowed to present controverting evidence after the demurrer was denied. As correctly ruled by the Supreme Court, the oppositors should be permitted to present their evidence.

However, Codoy is a controversial decision as it held that the 3-witness rule in Article 811 of the Civil Code is a mandatory requirement in the case of contested holographic wills. Hence non-compliance therewith would be a fatal error. Azaola vs. Singson, a decision penned by Justice J.B.L. Reyes, held that the requirement in Article 811 is merely directory. Justice Reyes explained in detail the reason for such conclusion. Now, with Codoy reaching a different conclusion, there is now a divisional ruling that is diametrically opposed with a prior en banc ruling.

But was it absolutely necessary for Codoy to disturb Azaola? I do not think so. Codoy could have been decided purely on the procedural issue that was raised. To support the conclusion reached by the Court, it would have been sufficient to discuss the deficient evidentiary basis for the admission of the holographic will to probate. It was totally unnecessary to rule that compliance with the 3-witness requirement in Article 811 is mandatory.

Pardo, J.:

Before us is a petition for review on certiorari of the decision of the Court of Appeals and its resolution denying reconsideration, ruling:

“Upon the unrebutted testimony of applicant Evangeline Calugay and witness Matilde Ramonal Binanay, the authenticity of testator’s holographic will has been established and the handwriting and signature therein x x x are hers, enough to probate said will. Reversal of the judgment appealed from and the probate of the holographic will in question be called for. The rule is that after plaintiff has completed presentation of his evidence and the defendant files a motion for judgment on demurrer to evidence on the ground that upon the facts and the law plaintiff has shown no right to relief, if the motion is granted and the order to dismissal is reversed on appeal, the movant loses his right to present evidence in his behalf x x x.” Judgment may, therefore, be rendered for appellant in the instant case.

Wherefore, the order appealed from is REVERSED and judgment rendered allowing the probate of the holographic will of the testator Matilde Seno vda. de Ramonal.”

The facts are as follows:

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On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas, devisees and legatees of the holographic will of the deceased Matilde Sena vda. de Ramonal, filed with the Regional Trial Court x x x a petition for probate of the holographic will of the deceased, who died on January 16, 1990.

In the petition, respondents claimed that the deceased Matilde Sena vda. de Ramonal, was of sound and disposing mind when she executed the will on August 30, 1978, that there was no fraud, undue influence, and duress employed in the person of the testator, and the will was written voluntarily.

The assessed valid of the decedent’s property, including all real and personal property was about P400,000.00 at the time of her death.

On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an opposition to the petition for probate, alleging that the holographic will was a forgery and that the same is even illegible. This gives an impression that a “third hand” of an interested party other than the “true hand” of Matilde Sena vda. de Ramonal executed the holographic will.

Petitioners argued that the repeated dates incorporated or appearing on the will after every disposition is out of the ordinary. If the deceased was the one who executed this will, and was not forced, the dates and the signatures should appear at the bottom after the dispositions, as regularly done and not after every disposition. And assuming that the holographic will is in the handwriting of the deceased, it was procured by undue and improper pressure and influence on the part of the beneficiaries, or through fraud and trickery.

Respondents presented six (6) witnesses and various documentary evidence. Petitioners instead of presenting their evidence, filed a demurrer to evidence, claiming that respondents failed to establish sufficient factual and legal basis for the probate of the holographic will of the deceased Matilde Sena vda. de Ramonal.

On November 26, 1990, the lower Court issued an order, the dispositive portion of which reads:

“WHEREFORE, in view of the foregoing consideration, the Demurrer to Evidence having been well taken, same is granted, and the petition for probate of the document x x x on the purported Holographic Will of the late Matilde Seno vda. de Ramonal, is denied for insufficiency of evidence and lack of merit.”

On December 12, 1990, respondents filed a notice of appeal, and in support of their appeal, the respondents once again reiterated the testimony of the following witnesses, namely: (1) Augusto Neri; (2) Generosa Senon; (3) Matilde Ramonal Binanay; (4) Teresita Vedad; (5) Fiscal Rodolfo Waga; and (6) Evangeline Calugay.

To have a clear understanding of the testimonies of the witnesses, we recite an account of their testimonies.

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Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental, where the special proceedings for the probate of the holographic will of the deceased was filed. He produced and identified the records of the case. The documents presented bear the signature of the deceased, Matilde Seno vda. de Ramonal. For the purpose of laying the basis for comparison of the handwriting of the testatrix, with the writing treated or admitted as genuine by the party against whom the evidence is offered.

Generosa Senon, election registrar of Cagayan de Oro, was presented to produce and identify the voter’s affidavit of the decedent. However, the voter’s affidavit was not produced for the same was already destroyed and no longer available.

Matilde Ramonal Binanay, testified that the deceased Matilde Seno vda. de Ramonal was her aunt, and that after the death of Matilde’s husband, the latter lived with her in her parent’s home for eleven (11) years, from 1958 to 1969. During those eleven (11) years of close association with the deceased, she acquired familiarity with her signature and handwriting as she used to accompany her (deceased Matilde Seno vda. de Ramonal) in collecting rentals from her various tenants of commercial buildings, and the deceased always issued receipts. In addition to this, she (witness Matilde Binanay) assisted the deceased in posting the records of the accounts, and carried personal letters of the deceased to her creditors.

Matilde Ramonal Binanay, further testified that at the time of the death of Matilde vda. de Ramonal, she left a holographic will dated August 30, 1978, which was personally and entirely written, dated and signed, by the deceased and that all the dispositions therein, the dates, and the signatures in said will, were that of the deceased.

Fiscal Rodolfo Waga testified that before he was appointed City Fiscal of Cagayan de Oro, he was a practicing lawyer, and handled all the pleadings and documents signed by the deceased in connection with the intestate proceedings of her late husband, as a result of which he is familiar with the handwriting of the latter. He testified that the signature appearing in the holographic will was similar to that of the deceased Matilde Sena vda. de Ramonal, but he can not be sure.

The fifth witness presented was Mrs. Teresita Vedad, an employee of the Department of Environment and Natural Resources, Region 10. She testified that she processed the application of the deceased for pasture permit and was familiar with the signature of the deceased, since the deceased signed documents in her presence, when the latter was applying for pasture permit.

Finally, Evangeline Calugay, one of the respondents, testified that she had lived with the deceased since birth, and was in fact adopted by the latter. That after a long period of time she became familiar with the signature of the deceased. She testified that the signature appearing in the holographic will is the true and genuine signature of Matilde Sena vda. de Ramonal.

The holographic will which was written in Visayan, is translated in English as

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follows:Instruction

August 30, 19781. My share at Cogon, Raminal Street, for Evangeline Calugay.

(Sgd.) Matilde vda. de Ramonal

August 30, 19782. Josefina Salcedo must be given 1,500 square meters at Pinikitan Street.

(Sgd.) Matilde vda. de Ramonal

August 30, 19783. My jewelry shall be divided among:

1. Eufemia Patigas2. Josefina Salcedo3. Evangeline Calugay

(Sgd.) Matilde vda. de Ramonal

August 30, 19784. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline R. Calugay.

(Sgd.) Matilde vda. de Ramonal

August 30, 19785. Give the 2,500 square meters at Sta. Cruz Ramonal Village in favor of Evangeline R. Calugay, Helen musty continue with the Sta. Cruz, once I am no longer around.

(Sgd.) Matilde vda. de Ramonal

August 30, 19786. Bury me where by husband Justo is ever buried.

(Sgd.) Matilde vda. de Ramonal

August 30, 1978Gene and Manuel:

Follow my instruction in order that I will rest peacefully,Mama

Matilde vda. de Ramonal

On October 9, 1995, the Court of Appeals rendered decision ruling that the appeal was meritorious. Citing the decision in the case of Azaola vs. Singson, 109 Phil 102, penned by Mr. Justice J.B.L. Reyes, a recognized authority in civil law, the Court of Appeals held:

“x x x even if the genuineness of the holographic will were contested, we are of the opinion that Article 811 of our present civil code can not be interpreted as to require the compulsory presentation of three witnesses to identify the handwriting of the testator, under penalty of having the probate denied. Since no witness may have been present at the execution of the holographic will, none being required by law x x x, it becomes obvious that the existence of witnesses

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possessing the requisite qualification is a matter beyond the control of the proponent. For it is not merely a question of finding and producing any three witnesses; they must be witnesses “who know the handwriting and signature of the testator” and who can declare (truthfully, of course, even if the law does not express) “that the will and the signature are in the handwriting of the testator.” There may be no available witness acquainted with the testator’s hand; or even if so familiarized, the witness may be unwilling to give a positive opinion. Compliance with the rule of paragraph 1 of article 811 may thus become an impossibility. That is evidently the reason why the second paragraph of article 811 prescribes that –

“In the absence of any competent witness referred to in the preceding paragraph, and if the court deems it necessary, expert testimony may be resorted to.”

“As can be seen, the law foresees the possibility that no qualified witness may be found (or what amounts to the same thing, that no competent witness may be willing to testify to the authenticity of the will), and provides for resort to expert evidence to supply the deficiency.

“It may be true that the rule of this article (requiring that three witnesses be presented if the will is contested and only one if no contest is had) was derived from the rule established for ordinary testaments x x x. But it can not be ignore that the requirement can be considered mandatory only in case of ordinary testaments, precisely because the presence of at least three witnesses at the execution of ordinary wills is made by law essential to their validity (Art. 805). Where the will is holographic, no witness need be present (Art. 810), and the rule requiring production of three witnesses must be deemed merely permissive if absurd results are to be avoided.

“Again, under Art, 811, the resort to expert evidence is conditioned by the words “if the court deem it necessary,” which reveal that what the law deems essential is that the court should be convinced of the will’s authenticity. Where the prescribed number of witnesses is produced and the court is convinced by their testimony that the will is genuine, it may consider it unnecessary to call for expert evidence. On the other hand, if no competent witness is available, or none of those produced is convincing, the court may still, and in fact it should resort to handwriting experts. The duty of the court, in fine, is to exhaust all available lines of inquiry, for the state is as much interested as the proponent that the true intention of the testator be carried into effect.

“Paraphrasing Azaola vs. Singson, even if the genuineness of the holographic will were contested, Article 811 of the civil code cannot

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be interpreted as to require the compulsory presentation of three witnesses to identify the handwriting of the testator, under penalty of having the probate denied. No witness need be present in the execution of the holographic will. And the rule requiring the production of three witnesses is merely permissive. What the law deems essential is that the court is convinced of the authenticity of the will. Its duty is to exhaust all available lines of inquiry, for the state is as much interested as the proponent that the true intention of the testator be carried into effect. And because the law leaves it to the trial court to decide if experts are still needed, no unfavorable inference can be drawn from a party’s failure to offer expert evidence, until and unless the court expresses dissatisfaction with the testimony of the law witnesses.”

According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal Binanay and other witnesses definitely and in no uncertain terms testified that the handwriting and signature in the holographic will were those of the testator herself.

Thus, upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde Ramonal Binanay, the Court of Appeals sustained the authenticity of the holographic will and the handwriting and signature therein, and allowed the will to probate.

Hence this petition.

The petitioners raise the following issues:

(1) Whether or not the ruling of the case of Azaola vs. Singson, 109 Phil 102, relied upon by the respondent Court of Appeals, was applicable to the case.

(2) Whether or not the Court of Appeals erred in holding that private respondents had been able to present credible evidence to prove that the date, text, and signature on the holographic will were written entirely in the hand of the testatrix.

(3) Whether or not the Court of Appeals erred in not analyzing the signatures on the holographic will of Matilde Sena vda. de Ramonal.

In this petition, the petitioners ask whether the provisions of Article 811 of the Civil Code are permissive or mandatory. The article provides, as a requirement for the probate of a contested holographic will, that at least three witnesses explicitly declare that the signature in the will is the genuine signature of the testator.

We are convinced, based on the language used, that Article 811 of the Civil Code is mandatory. The word “shall” connotes a mandatory order. We have ruled that “shall” in a statute commonly connotes an imperative obligation and is inconsistent with the idea of discretion and that the presumption is that the word “shall,” when used in a statute, is mandatory.

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Laws are enacted to achieve a goal intended and to guide against an evil or mischief that aims to prevent. In the case at bar, the goal to achieve is to give effect to the wishes of the deceased and the evil to be prevented is the possibility that unscrupulous individuals who for their benefit will employ means to defeat the wishes of the testator.

So we believe that the paramount consideration in the present petition is to determine the true intent of the deceased. An exhaustive and objective consideration of the evidence is imperative to establish the true intent of the testator.

It will be noted that not all the witnesses presented by the respondents testified explicitly that they were familiar with the handwriting of the testator. In the case of Augusto Neri, clerk of court, Court of First Instance of Misamis Oriental, he merely identified the record of Special Proceedings No. 427 before said court. He was not presented to declare explicitly that the signature appearing in the holographic will was that of the deceased.

Generosa E. Senon, the election registrar of Cagayan de Oro City, was presented to identify the signature of the deceased in the voter’s affidavit, which was not even produced as it was no longer available.

Matilde Ramonal Binanay, on the other hand testified that –

x x x

What Mrs. Binanay saw were pre-prepared receipts and letters of the deceased, which she either mailed or gave to her tenants. She did not declare that she saw the deceased sign a document or write a note.

Further, during the cross examination, the counsel for petitioner elicited the fact that the will was not found in the personal belongings to the deceased but was in the possession of Mrs. Binanay.

x x x

In her testimony it was also evident that Mrs. Binanay kept the fact about the will from petitioners, the legally adopted children of the deceased. Such action put in issue her motive of keeping the will a secret to petitioners and revealing it only after the death of Matilde Seno vda. de Ramonal.

x x x

Evangeline Calugay declared that the holographic will was written, dated and signed in the handwriting of the testator. She testified that x x x.

So, the only reason that Evangeline can give as to why she was familiar with the handwriting of the deceased was because she lived with her since birth. She never declared that she saw the deceased write a note or sign a document.

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The former lawyer of the deceased, Fiscal Waga, testified that x x x.

From the testimonies of these witnesses, the Court of Appeals allowed the will to probate and disregarded the requirement of three witnesses in case of contested holographic will, citing the decision in Azaola vs. Singson, ruling that the requirement is merely directory and not mandatory.

In the case of Ajero v Court of Appeals, we said that “the object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore, the laws on this subject should be interpreted in such a way as to attain these primordial ends. But on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will.

However, we cannot eliminate the possibility of a false document being adjudged as the will of the testator, which is why if the holographic will is contested, the law requires three witnesses to declare that the will was in the handwriting of the deceased.

The will was found not in the personal belongings of the deceased but with one of the respondents, who kept it even before the death of the deceased. In the testimony of Mrs. Binanay, she revealed that the will was in her possession as early as 1985, or five years before the death of the deceased.

There was no opportunity for an expert to compare the signature and the handwriting of the deceased with other documents signed and executed by her during her lifetime. The only chance at comparison was during the cross-examination of Mrs. Binanay when the lawyer of petitioners asked Mrs. Binanay to compare the documents which contained the signature of the deceased with that of the holographic will and she is not a handwriting expert. Even the former lawyer of the deceased expressed doubts as to the authenticity of the signature in the holographic will.

A visual examination of the will convinces us that the strokes are different when compared with other documents written by the testator. The signature of the testator in some of the dispositions is not readable. There were uneven strokes, retracing and erasures on the will.

Comparing the signature in the holographic will dated August 30, 1978, and the signatures in several documents such as the application letter for pasture permit dated December 30, 1980, and a letter dated June 16, 1978, the strokes are different. In the letters, there are continuous flows of the strokes, evidencing that there is no hesitation in writing, unlike that of the holographic will. We therefore cannot be certain that the holographic will was in the handwriting by the deceased.

IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records

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are ordered remanded to the court of origin with instructions to allow petitioners to adduce evidence in support of their opposition to the probate of the holographic will of the deceased Matilde Sena vda. de Ramonal.

Davide, Jr. (C.J.), Puno, Kapunan and Ynares-Santiago, JJ., concur.

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RIVERA v INTERMEDIATE APPELLATE COURTNo. L-75005-06, 15 February 1990

182 SCRA 322

Under Article 811 of the Civil Code, if the authenticity of the holographic will is contested, three witnesses are required to identify the handwriting and signature of the testator. Failing which, or if the court is not convinced, expert testimony may be resorted to. Rivera presents a critical twist to the provision of law. Oppositor challenged the authenticity of the holographic will and claimed that in fact the decedent died intestate. This would have necessitated the application of the three-witness rule, where it not for the supervening finding of the court that the oppositor is not related to and in fact a stranger with respect to the decedent. Consequently, and despite his opposition, the three-witness rule is not applicable.

Cruz, J.:

Was there only one Venancio Rivera in Mabalacat, Pampanga, or were there two?

On May 30, 1975, a prominent and wealthy resident of that town named Venancio Rivera died. On July 28, 1975, Jose Rivera, claiming to be the only surviving legitimate son of the deceased, filed a petition for the issuance of letters of administration over Venancio's estate. Docketed as S.P. No. 1076, this petition was opposed by Adelaido J. Rivera, who denied that Jose was the son of the decedent. Adelaido averred that Venancio was his father and did not die intestate but in fact left two holographic wills.

On November 7, 1975, Adelaido J. Rivera filed, also with the Regional Trial Court of Angeles City, a petition for the probate of the holographic wills. Docketed as S.P. No. 1091, this petition was in turn opposed by Jose Rivera, who reiterated that he was the sole heir of Venancio's intestate estate.

On November 11, 1975, the two cases were consolidated. Adelaido J. Rivera was later appointed special administrator. After joint trial, Judge Eliodoro B. Guinto found that Jose Rivera was not the son of the decedent but of a different Venancio Rivera who was married to Maria Vital. The Venancio Rivera whose estate was in question was married to Maria Jocson, by whom he had seven children, including Adelaido. Jose Rivera had no claim to this estate because the decedent was not his father. The holographic wills were also admitted to probate.

On appeal, the decision of the trial court was affirmed by the then Intermediate Appellate Court. Its decision is now the subject of this petition, which urges the reversal of the respondent court.

We find in favor of Adelaido J. Rivera.

x x x

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We find from the evidence of record that the respondent court did not err in holding that Venancio Rivera who married Maria Jocson in 1942 was not the same person who married Maria Vital, Jose's legitimate mother, in 1928. Jose belonged to a humbler family which had no relation whatsoever with the family of Venancio Rivera and Maria Vital. This was more prosperous and prominent. Except for the curious identity of named of the head of each, there is no evidence linking the two families or showing that the deceased Venancio Rivera was the head of both.

Now for the holographic wills. The respondent court considered them valid because it found them to have been written, dated and signed by the testator himself in accordance with Article 810 of the Civil Code. It also held that there was no necessity of presenting the three witnesses of the wills required under Article 811 because the authenticity of the wills had not been questioned.

The existence and therefore also the authenticity of the holographic wills were questioned by Jose Rivera. In his own petition in S.P. No. 1076, he declared that Venancio Rivera died intestate; and in S.P. No. 1091, he denied the existence of the holographic wills presented by Adelaido Rivera for probate. In both proceedings, Jose Rivera opposed the holographic wills submitted by Adelaido Rivera and claimed that they were spurious. Consequently, it may be argued, the respondent court should have applied Article 811 of the Civil Code providing as follows:

x x x

The flaw in this argument is that, as we have already determined, Jose Rivera is not the son of the deceased Venancio Rivera, whose estate is in question. Hence, being a mere stranger, he had no personality to contest the wills and his opposition thereto did not have the legal effect of requiring the three witnesses. The testimony of Zenaida and Venancio Rivera, Jr., who authenticated the wills as having been written and signed by their father was sufficient.

WHEREFORE, the petition is DENIED and the challenged decision is AFFIRMED, with costs against the petitioner.

SO ORDERED.

Narvasa (Chairman), Gancayco, Griño-Aquino and Medialdea, JJ., concur.

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KALAW v RELOVANo. L-40207, 28 September 1984

132 SCRA 237

Article 814 requires the authentication of any alteration in a holographic will. The failure to authenticate such alterations results in the invalidity of the desired change. However, where the testator canceled the name of the original heir, and substituted in lieu thereof another name, without the requisite authentication, the institution of the new heir is inoperative by reason of a failure to comply with the requirement of Article 814. Should the nullity of the alteration result in the effectivity of the original disposition? The court in Kalaw ruled in the negative, stating among other things, that the intention of the testatrix has become indeterminable. Nevertheless, an examination of the provision of Article 830 indicates clearly that "cancellation" is a mode of revocation. Can the institution of the original heir, therefore, be construed as having been expressly revoked by the cancellation of her name by the testatrix? If so, and considering that the subsequent institution of the second heir is inoperative, who inherits the estate of the deceased?

Melencio-Herrera, J.:

On September 1, 1971, private respondent Gregorio K. Kalaw, claiming to be the sole heir of his deceased sister, Natividad K. Kalaw, filed a petition before the Court of First Instance of Batangas, Branch VI, Lipa City, for the probate of her holographic will executed on December 24, 1968.

x x x

The holographic will, as first written, named Rosa K. Kalaw, a sister of the testatrix, as her sole heir. Hence on November 10, 1971, petitioner Rosa K. Kalaw opposed probate alleging, in substance, that the holographic will contained alterations, corrections and insertions without the proper authentication by the full signature of the testatrix as required by Article 814 of the Civil Code reading:

Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature.

Rosa's position was that the holographic will, as first written, should be given effect and probated so that she could be the sole heir thereunder.

After trial, respondent Judge denied probate in an Order dated September 13, 1973, reading in part:

The document, Exhibit "C" was submitted to the National Bureau of Investigation for examination. The NBI reported that the handwriting, the signature, the insertions and/or additions and the initial were made by one and the same person. Consequently, Exhibit "C" was the handwriting of the decedent, Natividad K. Kalaw. The only question is whether the will, Exhibit "C", should be admitted to probate although the alterations and/or insertions or

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additions above-mentioned were not authenticated by the full signature of the testatrix pursuant to Article 814 of the Civil Code. The petitioner contends that the oppositors are estopped to assert the provision of Article 814 on the ground that they themselves agreed through their counsel to submit the document to the NBI for examination. This is untenable. The parties did not agree, nor was it impliedly understood, that the oppositors would be in estoppel.

The Court finds, therefore, that the provisions of Article 814 of the Civil Code is applicable to Exhibit "C". Finding the insertion, alterations and/or additions in Exhibit "C" not to be authenticated by the full signature of the testatrix Natividad K. Kalaw, the court will deny the admission to probate of Exhibit "C".

From that order, Gregorio moved for reconsideration arguing that since the alterations and/or insertions were made by the testatrix, the denial to probate of her holographic will would be contrary to her right to testamentary disposition. Reconsideration was denied in an Order dated November 2, 1973, on the ground that "Article 814 of the Civil Code being clear and explicit, (it) requires no necessity of interpretation."

From that order dated September 3, 1973 denying probate, and the order dated November 2, 1973 denying reconsideration, Rosa filed this Petition for Review on Certiorari on the sole legal question of whether or not the original unaltered text after subsequent alterations and insertions were voided by the Trial Court for lack of authentication by the full signature of the testatrix, should be probated or not, with her as sole heir.

Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic will have not been noted under his signature, x x x the will is not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected or interlined. Manresa gave an identical commentary when he said "la omision de la salvedad no anula el testamento, segun la regla de jurisprudencia establecida en la sentencia de 4 de abril de 1895."

However, when as in this case, the holographic will is dispute had only one substantial provision, which was altered by substituting the original heir with another, but which alteration did not carry the requisite full authentication by the full signature of the testator, the effect must be that the entire will is voided or revoked for the simple reason that nothing remains in the will after that which could remain valid. To state that the will as first written should be given efficacy is to disregard the seeming change of mind of the testatrix. But the change of mind can neither be given effect because she failed to authenticate it in the manner required by law by affixing her full signature.

The ruling in Velasco, supra, must be held confined to such insertions, cancellations, erasures or alterations in a holographic will, which affect only the efficacy of the altered words themselves but not the essence and validity of the will itself. As it is, with the erasures, cancellations and alterations made by the testatrix

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herein, her real intention cannot be determined with certitude. x x x.

WHEREFORE, this Petition is hereby dismissed and the Decision of the Respondent Judge, dated September 3, 1973, is hereby affirmed in toto. No cost.

Plana, Gutierrez, Jr., and de la Fuente, JJ., concur. Teehankee (Chairman), J., concurs in a separate opinion. Relova, J., took no part.

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AJERO V COURT OF APPEALSNo. 106720, 15 September 1994

236 SCRA 488

Ajero upholds the proposition that Articles 813 and 814 do not form part of the requisites for formal or extrinsic validity of a holographic will. Thus, a failure on the part of the testator to observe the requirements of Articles 813 and 814 does not justify the disallowance of the will. However, the relevant provisions may be disallowed. The court further stresses that proof of compliance with the requirements of Articles 813 and 814 cannot ordinarily be dealt with during probate proper, because at this stage, the court's area of inquiry should, in general, be limited to the following issues: (1) whether the instrument submitted is indeed, the decedent's last will and testament; (2) whether the will was executed in accordance with the formalities prescribed by law; (3) whether the decedent had testamentary capacity at the time the will was executed; and (4) whether the execution of the will and its signing were the voluntary acts of the decedent.

Puno, J.:

This is an appeal by certiorari from the Decision of the Court of Appeals in CA-GR CV No. 22840, dated March 30, 11992, the dispositive portion of which reads:

Premises considered, the questioned decision of November 19, 1988 of the trial court is hereby reversed and set aside, and the petition for probate is hereby dismissed. No costs.

The earlier decision was rendered by the RTC of Quezon City, branch 94, in Sp. Proc. No. Q-37171, and the instrument submitted for probate is the holographic will of the late Annie Sand, who died on November 2, 1982.

In the will, decedent named as devisees, the following: petitioners Roberto and Thelma Ajero, private respondent Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and their children.

On January 20, 11983, petitioners instituted Sp. proc. No. Q-37171, for allowance of decedent's holographic will. They alleged that at the time of its execution, she was of sound and disposing mind, not acting under duress, fraud or undue influence, and was in every respect capacitated to dispose of her estate by will.

Private respondent opposed the petition on the grounds that: neither the testament's body nor the signature therein was in decedent's handwriting; it contained alterations and corrections which were not duly signed by decedent; and, the will was procured by petitioners through improper pressure and undue influence. The petition was likewise opposed by Dr. Jose Ajero. He contested the disposition in the will of a house and lot located in Cabadbaran, Agusan del Norte. He claimed that said property could not be conveyed by decedent in its entirety, as she was not its sole owner.

Notwithstanding the oppositions, the trial court admitted the decedent's

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holographic will to probate. x x x

On appeal, said Decision was reversed, and the petition for probate of decedent's will was dismissed. The Court of Appeals found that, "the holographic will fails to meet the requirements for its validity." It held that the decedent did not comply with Articles 813 and 814 of the New Civil Code, which reads as follows:

Art. 813. When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and date, such date validates the dispositions preceding it, whatever be the time of prior dispositions.

Art. 814. In case of insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature.

It alluded to certain dispositions in the will which were either unsigned and undated, or signed but not dated. It also found that the erasures, alterations and cancellations made thereon had not been authenticated by decedent.

Thus, this appeal which is impressed with merit.

Section 9, Rule 76 of the Rules of Court provided that wills shall be disallowed in any of the following cases:

(a) if not executed and attested as required by law;

(b) if the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution;

(c) if it was executed under duress, or the influence of fear or threats;

(d) if it was procured by undue and improper pressure and influence on the part of the beneficiary, or of some other person for his benefit;

(e) if the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will, at the time of fixing his signature thereto.

In the same vein, Article 839 of the New Civil Code reads:

Art. 839. The will shall be disallowed in any of the following cases:

(1) if the formalities required by law have not been complied with;(2) if the testator was insane, or otherwise mentally incapable of making a

will, at the time of its execution;(3) if it was executed through force or under duress, or the influence of

fear, or threats;(4) if it was procured by undue and improper pressure and influence, on

the part of the beneficiary or of some other persons;

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(5) if the signature of the testator was procured by fraud;(6) if the testator acted by mistake or did not intent that the instrument he

signed should be his will at the time of affixing his signature thereto.

These lists are exclusive; no other grounds can serve to disallow a will. Thus, in a petition to admit a holographic will to probate, the only issues to be resolved are: (1) whether the instrument submitted is indeed, the decedent's last will and testament; (2) whether said will was executed in accordance with the formalities prescribed by law; (3) whether the decedent had the necessary testamentary capacity at the time the will was executed; and (4) whether the execution of the will and its signing were the voluntary acts of the decedent.

In the case at bench, respondent court held that the holographic will of Anne Sand was not executed in accordance with the formalities prescribed by law. It held that Articles 813 and 814 of the New Civil Code, ante, were not complied with, hence, it disallowed the probate of said will. This is erroneous.

We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that:

The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore, the laws on this subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testator's last will, must be disregarded.

For purposes of probating non-holographic wills, these formal solemnities include the subscription, attestation, and acknowledgment requirements under Articles 805 and 806 of the New Civil Code.

In the case of holographic wills, on the other hand, what assures authenticity is the requirement that they be totally autographic or handwritten by the testator himself, as provided under Article 810 of the New Civil Code, thus:

A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed.

Failure to strictly observe other formalities will not result in the disallowance of a holographic will that is unquestionably handwritten by the testator.

A reading of Article 813 of the New Civil Code shows that its requirement affects the validity of the dispositions contained in the holographic will, but not its probate. If the testator fails to sign and date some of the dispositions, the result is that

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these dispositions cannot be effectuated. Such failure, however, does not render the whole testament void.

Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance with the provisions of Article 814. In the case of Kalaw vs. Relova, 1132 SCRA 237, 242 (1984), this Court held:

Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic will have not been noted under his signature, x x x the will is not thereby invalidated as a whole, but at most only as respects the particular words erase, corrected or interlined. Manresa gave an identical commentary when he said la omision de la salvedad no anula el testamento, segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de 1895.

Thus, unless the unauthenticated alterations, cancellations or insertions were made on the date of the holographic will or on testator's signature, their presence does not invalidate the will itself. The lack of authentication will only result in disallowance of such changes.

It is also proper to note that the requirements of authentication of changes and signing and dating of dispositions appear in provisions (Articles 813 and 814) separate from that which provides for the necessary conditions for the validity of the holographic will (Article 810). The distinction can be traced to Articles 678 and 688 of the Spanish Civil Code, from which the present provisions covering holographic wills are taken. They read as follows:

Article 678: A will is called holographic when the testator writes it himself in the form and with the requisites required in Article 688.

Article 688: Holographic wills may be executed only by persons of full age.In order that the will be valid it must be drawn on stamped paper

corresponding to the year of its execution, written in its entirety by the testator and signed by him, and must contain a statement of the year, month and day of its execution. If it should contain any erased, corrected, or interlined words, the testator must identify them over his signature. Foreigners may execute holographic wills in their own language.

This separation and distinction add support to the interpretation that only the requirements of Articles 810 of the New Civil Code - and not those found in Articles 813 and 814 of the same Code - are essential to the probate of a holographic will.

The Court of Appeals further held that decedent Annie Sand could not validly dispose of the house and lot located in Cabadbaran, Agusan Del Norte, in its entirety. This is correct and must be affirmed.

As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be probated. However, in exceptional instance, courts are not powerless to do what the situation constrains them to do, and

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pass upon certain provisions of the will. In the case at bench, decedent herself indubitably stated in her holographic will that the Cabadbaran property is in the name of her late father, John H. Sand (which led oppositor Dr. Jose Ajero to question her conveyance of the same in its entirety). Thus, as correctly held by respondent court, she cannot validly dispose of the whole property, which she shares with her father's other heirs.

IN VIEW WHEREOF, the instant petition granted. The decision of the Court of Appeals in CA-G.R. CV No. 22840, dated March 30, 1992, is reversed and set aside, except with respect to the invalidity of the disposition of the entire house and lot in Cabadbaran, Agusan del Norte. The Decision of the Regional Trial Court of Quezon City, Branch 94 in Sp. Proc. No. Q-37171, dated November 19, 1988, admitting to probate the holographic will of decedent Annie Sand, is hereby reinstated, with the above qualification as regards the Cabadbaran property. No costs.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.

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VDA. DE PEREZ v TOLETEG.R. No. 76714, 2 June 1994

232 SCRA 722

This case outlines the procedure for the reprobate of a will that was executed and probated in accordance with foreign law.

Quiason, J.:

x x x

Petitioners add that the wills had been admitted to probate in the Surrogate Court’s Decision of April 13, 1983 and that the proceedings were terminated on November 29, 1984.

The respective wills of the Cunanan spouses, who were American citizens, will only be effective in this country upon compliance with the following provisions of the Civil Code of the Philippines:

Art. 816. The will of an alien who is abroad produces effects in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes.

Thus, proof that both wills conform with the formalities prescribed by New York laws or by Philippine laws is imperative.

The evidence necessary for the reprobate or allowance of wills which have been probated outside the Philippines are as follows: (1) the due execution of the will in accordance with the foreign laws; (2) the testator has his domicile in the foreign country and not in the Philippines; (3) the will has been admitted to probate in such country; (4) the fact that the foreign tribunal is a probate court; and (5) the laws of the foreign country on procedure and allowance of wills. x x x Except for the first and last requirements, the petitioner submitted all of the needed evidence.

The necessity of presenting evidence on the foreign laws upon which the probate in the foreign country is based is impelled by the fact that our courts cannot take judicial notice of them x x.

x x x

WHEREFORE, the questioned order is SET ASIDE. Respondent Judge shall allow petitioner reasonable time within which to submit evidence for the joint probate of the wills of the Cunanan spouses and see to it that the brothers and sisters of Dr. Jose F. Cunanan are given all notices and copies of all pleadings pertinent to the probate proceedings.

Davide, Jr., Bellosillo and Kapunan, JJ., concur. Cruz, J., (Chairman), on leave.

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DE LA CERNA v REBACA-POTOTNo. L-20234, 23 December 1964

12 SCRA 576

Article 818 of the Code prohibits the execution of joint wills, whether they be for the reciprocal benefit of the testators, or for the benefit of a third person. However, it must be noted that if a probate court erroneously admitted a joint will to probate, the error thus committed would be considered an error of law and not of jurisdiction. Therefore, such an error must be corrected by appeal; failing which the erroneous decision would become final.

The foregoing notwithstanding, please note that in the following case, the joint will, while deemed operative with respect to the husband, was considered void as to the wife. The issue of jurisdiction should be noted in particular.

Reyes, J.B.L., J.:

x x x

The factual background appears in the following portion of the decision of the Court of Appeals:

It appears that on May 9, 1939, the spouses, Bernabe de la Cerna and Gervasia Rebaca, executed a joint last will and testament in the local dialect whereby they willed that "our two parcels of land acquired during our marriage together with all the improvements thereon shall be given to Manuela Rebaca, our niece, whom we have nurtured since childhood, because God did not give us any child in our union, Manuela Rebaca being married to Nicolas Potot," and that "while each of the testators is yet living, he or she will continue to enjoy the fruits of the two lands aforementioned," the said two parcels of land being covered by Tax No. 4676 and Tax No. 4677, both situated in sitio Bucao, barrio Lugo, municipality of Borbon, province of Cebu. Bernabe de la Cerna died on August 30, 1939, and the aforesaid will was submitted to probate by said Gervasia and Manuela before the Court of First Instance of Cebu which, after due publication as required by law and there being no opposition, heard the evidence, and, by Order of October 31, 1939, in Special Proceedings No. 499, "declara legalizado el documento Exhibit A como el testamento y ultima voluntad del finado Bernabe de la Cerna con derecho por parte de su viuda superstite Gervasia Rebaca y otra testadora el propio tiempo segun el Exhibit A de gozar de los frutos de los terranos descritos en dicho documento; x x x. Upon the death of Gervasia Rebaca on October 14, 1952, another petition for the probate of the same will insofar as Gervasia was concerned was filed on November 6, 1952, being Special Proceedings No. 1016-R of the same Court of First Instance of Cebu, but for failure of the petitioner, Manuela R. Potot, and her attorney, Manuel Potot, to appear for the hearing of said petition, the case was dismissed on March 30, 1954. x x x.

The Court of First Instance ordered the petition heard and declared the testament null and void, for being executed contrary to the prohibition of joint wills in

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the Civil Code; but on appeal by the testamentary heir, the Court of Appeals reversed, on the ground that the decree of probate in 1939 was issued by a court of probate jurisdiction and conclusive on the due execution of the testament. Further, the Court of Appeals declared that:

x x x It is true the law (Art. 66, old Civil Code; Art. 818, new Civil Code) prohibits the making of a will jointly by two or more persons either for their reciprocal benefit or for the benefit of third persons. However, this form of will has long been sanctioned by use, and the same has continued to be used; and when, as in the present case, one such joint last will and testament has been admitted to probate by final order of a court of competent jurisdiction, there seems to be no alternative except to give effect to the provisions thereof that are not contrary to law, as was done in the case of Macrohon v Saavedra, 51 Phil 267, wherein our Supreme Court gave effect to the provisions of the joint will therein mentioned, saying, "assuming that the joint will in question is valid.

Whence this appeal by the heirs intestate of the deceased husband, Bernabe de la Cerna.

The appealed decision correctly held that the final decree of probate entered in 1939 by the Court of First Instance of Cebu (when the testator, Bernabe de la Cerna, died), has conclusive effect as to his last will and testament, despite the fact that even then the Civil Code already decreed the invalidity of joint wills, whether in favor of the joint testators, reciprocally, or in favor of a third party. The error thus committed by the probate court was an error of law, that should have been corrected by appeal, but which did not affect the jurisdiction of the probate court, nor the conclusive effect of its final decision, however, erroneous. A final judgment rendered on a petition for probate of a will is binding upon the whole world (Manalo v Paredes, 47 Phil 938; In re Estate of Johnson, 39 Phil 156); and public policy and sound practice demand that at the risk of occasional errors, judgment of courts should become final at some definite date fixed by law. Interest rei publicae ut finis set litium. (Dy Cay v Crossfield, 38 Phil 521, and other cases cited in 2 Moran, Comments on the Rules of Court, 1963 ed., p. 322.)

Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded by the 1939 decree admitting the will to probate. The contention that being void the will cannot be validated, overlooks that the ultimate decision on whether an act is valid or void rests with the courts, and here they have spoken with finality when the will was probated in 1939. On this court, the dismissal of their action for partition was correct.

But the Court of Appeals should have taken into account, also, to avoid future misunderstanding, that the probate decree of 1939 could only affect the share of the deceased husband, Bernabe de la Cerna. It could not include the disposition of the share of the wife, Gervasia Rebaca, who was then still alive, and over whose interest in the conjugal properties the probate court acquired no jurisdiction, precisely because her estate could not then be in issue. Be it remembered that prior to the new Civil Code, a will could not be probated during the testator's lifetime.

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It follows that the validity of the joint will, insofar as the estate of the wife was concerned, must be, on her death, reexamined and adjudicated de novo, since a joint will is considered a separate will of each testator. Thus regarded, the holding of the Court of First Instance of Cebu that the joint will is one prohibited by law was correct as to the participation of the deceased Gervasia Rebaca in the properties in question, for the reasons extensively discussed in our opinion in Bilbao v Bilbao, 87 Phil 144, that explained the previous holding in Macrohon v Saavedra, 51 Phil 267.

Therefore, the undivided interest of Gervasia Rabaca should pass upon her death to her heirs intestate, and not exclusively to the testamentary heirs, unless some other valid will in her favor is shown to exist, or unless she be the only heir intestate of said Gervasia.

x x x

WITH THE FOREGOING MODIFICATIONS, the judgment of the Court of Appeals in CA-G.R. No. 23763-R is affirmed. No costs.

Bengzon, C.J., Bautista Angelo, Concepcion, Barrera, Paredes, Dizon, Regala, Makalintal, Bengzon, J.P., and Zaldivar, JJ., concur.

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GONZALES v COURT OF APPEALSNo. L-37453, 25 May 1979

90 SCRA 187

Article 805 requires the notarial will to be attested by at least three credible witnesses. Article 820 prescribes the qualifications of a witness, while Article 821 enumerates the disqualifications. Thus, an issue arises as to whether or not a witness competent under Articles 820 and 821 is necessarily credible as required by Article 805. Gonzales makes a distinction between a competent witness and a credible witness. Furthermore, Gonzales stresses that competence may be proved or inferred; whereas, credibility, which is a matter to be determined by the court, is presumed unless evidence to the contrary is presented.

Guerrero, J.:

x x x

It appears that on June 24, 1961, herein private respondent Lutgarda Santiago filed a petition with the Court of First Instance of Rizal, docketed as Special Proceedings No. 3617, for the probate of a will alleged to have been executed by the deceased Isabel Gabriel and designating therein petitioner the principal beneficiary and executrix.

There is no dispute in the records that the late Isabel Andres Gabriel died as a widow and without issue in the municipality of Navotas, province of Rizal, her place of residence, on June 7, 1961 at the age of eighty-five (85), having been born in 1876. It is likewise not controverted that herein private respondent Lutgarda Santiago and petitioner Rizalina Gabriel Gonzales are nieces of the deceased, and that private respondent, with her husband and children, lived with the deceased at the latter's residence prior to and up to the time of her death.

x x x

The will itself provides that the testatrix desired to be buried in the Catholic Cemetery of Navotas, Rizal in accordance with the rites of the Roman Catholic Church, all expenses to be paid from her estate; that all her obligations, if any, be paid; that legacies in specified amounts be given to her sister, Praxedes Gabriel vda. de Santiago, her brother Santiago Gabriel, and her nephews and nieces, Benjamin, Salud, Rizalina (herein petitioner), Victoria, Ester, Andres, all surnamed Gabriel, and Evangelina, Rudyardo, Rosa, Andrea, Marcial, Numancia, Verena, all surnamed Santiago. To herein private respondent Lutgarda Santiago, who was described in the will by the testatrix as "aking mahal na pamangkin na aking pinalaki, inalagaan at minahal na tulad ng isang tunay na anak" and named as universal heir and executor, were bequeathed all properties and estate, real or personal, already acquired, or to be acquired, in her (testatrix's) name, after satisfying the expenses, debts and legacies as aforementioned.

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The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner, assailing the document purporting to be the will of the deceased on the following grounds:

1. that the same is not genuine; and in the alternative;2. that the same was not executed and attested as required by law;3. that, at the time of the alleged execution of the purported will, the

decedent lacked testamentary capacity due to old age and sickness; and in the second alternative;4. that the purported will was procured through undue and improper pressure and influence on the part of the principal beneficiary, and/or of some other person for her benefit.

Lutgarda Santiago filed her answer to the Opposition on February 1, 1962. After trial, the court a quo rendered judgment, the summary and dispositive portions of which read:

Passing in summary upon the grounds advanced by the oppositor, this Court finds:

1. That there is no iota of evidence to support the contention that the purported will of the deceased was procured through undue and improper pressure and influence on the part of the petitioner, or of some other person for her benefit;

2. That there is insufficient evidence to sustain the contention that at the time of the alleged execution of the purported will, the deceased lacked testamentary capacity due to old age and sickness;

3. That sufficient and abundant evidence warrants conclusively the fact that the purported will of the deceased was not executed and attested as required by law;

4. That the evidence is likewise conclusive that the document presented for probate, Exhibit "F", is not the purported will allegedly dictated by the deceased, executed and signed by her, and attested by her three attesting witnesses on April 15, 1961.

WHEREFORE, Exhibit "F", the document presented for probate as the last will and testament of the deceased Isabel Gabriel, is hereby disallowed.

From this judgment of disallowance, Lutgarda Santiago appealed to respondent Court, hence the only issue decided on appeal was whether or not the will in question was executed and attested as required by law. The Court of Appeals, upon consideration of the evidence adduced by both parties, rendered the decision now under review, holding that the will in question was signed and executed by the deceased Isabel Gabriel on April 15, 1961 in the presence of the three attesting witnesses, Matilde Orobia, Celso Gimpaya and Maria Gimpaya, signing and

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witnessing the document in the presence of the deceased and of each other as required by law, hence allowed probate.

Oppositor Rizalina Gabriel Gonzales moved for reconsideration of the aforesaid decision and such motion was opposed by petitioner-appellant Lutgarda Santiago. Thereafter, parties submitted their respective Memoranda, and on August 28, 1973, respondent Court, former Special First Division, by Resolution denied the motion for reconsideration stating that:

The oppositor-appellee contends that the preponderance of evidence shows that the supposed last will and testament of Isabel Gabriel was not executed in accordance with law because the same was signed on several occasions, that the testatrix did not sign the will in the presence of all the instrumental witnesses did not sign the will in the presence of each other.

The resolution of the factual issue raised in the motion for reconsideration hinges on the appreciation of the evidence. We have carefully re-examined the oral and documentary evidence of record. There is no reason to alter the findings of fact in the decision of this Court sought to be set aside.

x x x

The petitioner, in her brief makes the following assignment of errors:

I. The respondent Court of Appeals erred in holding that the document, Exhibit "F" was executed and attested as required by law when there is absolutely no proof that the three instrumental witnesses were credible witnesses.

x x x

Petitioner in her first assignment of error, contends that the respondent Court of Appeals erred in holding that the document, Exhibit "F", was executed and attested as required by law when there was absolutely no proof that the three instrumental witnesses were credible witnesses. She argues that the requirement in Article 806, Civil Code, that the witnesses must be credible is an absolute requirement which must be complied with before an alleged last will and testament may be admitted to probate and that to be a credible witness, there must be evidence on record that the witness has good standing in his community, or that he is honest and upright, or reputed to be trustworthy and reliable. According to petitioner, unless the qualifications of the witness are first established, his testimony may not be favorably considered. Petitioner contends that the term "credible" is not synonymous with "competent" for a witness may be competent under Article 820 and 821 of the Civil Code and still not be credible as required by Article 805 of the same Code. It is further argued that the term "credible" as used in the Civil Code should receive the same settled and well-known meaning it has under the Naturalization Law, the latter being a kindred legislation with the Civil Code provision on wills with respect to the qualifications of witnesses.

We find no merit to petitioner's first assignment of error. Article 820 of the Civil Code provides the qualifications of a witness to the execution of wills while Article 821

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sets forth the disqualifications from being a witness to a will. These articles state:

Art. 820. Any person of sound mind and of the age of eighteen years or more and not blind, deaf or dumb, and able to read and write, may be a witness to the execution of a will mentioned in article 805 of this Code.

Art. 821. The following are disqualified from being witnesses to a will:

(1) Any person not domiciled in the Philippines;

(2) Those who have been convicted of falsification of a document, perjury or false testimony.

Under the law, there is no mandatory requirement that the witness testify initially or at any time during the trial as to his good standing in the community, his reputation for trustworthiness and reliableness, his honesty and uprightness in order that his testimony may be believed and accepted by the trial court. It is enough that the qualifications enumerated in Article 820 of the Civil Code are complied with, such that the soundness of his mind can be shown by or deduced from his answers to the questions propounded to him, that his age (18 years or more) is shown from his appearance, testimony, or competently proved otherwise, as well as the fact that he is not blind, deaf or dumb and that he is able to read and write to the satisfaction of the Court, and that he has none of the disqualifications under Article 821 of the Civil Code. We reject petitioner's contention that it must first be established in the record the good standing of the witness in the community, his reputation for trustworthiness and reliableness, his honesty and uprightness, because such attributes are presumed of the witness unless the contrary is proved otherwise by the opposing party.

We also reject as without merit petitioner's contention that the term "credible" as used in the Civil Code should be given the same meaning it has under the Naturalization Law where the law is mandatory that the petition for naturalization must be supported by two character witnesses who must prove their good standing in the community, reputation for trustworthiness and reliableness, their honesty and uprightness. The two witnesses in a petition for naturalization are character witnesses in that being citizens of the Philippines, they personally know the petitioner to be a resident of the Philippines for the period of time required by the Act and a person of good repute and morally irreproachable and that said petitioner has in their opinion all the qualifications necessary to become a citizen of the Philippines and is not in any way disqualified under the provisions of the Naturalization Law x x x.

In probate proceedings, the instrumental witnesses are not character witnesses for they merely attest the execution of a will or testament and affirm the formalities attendant to said execution. And We agree with the respondent that the rulings laid down in the cases cited by the petitioner concerning character witnesses in naturalization proceedings are not applicable to instrumental witnesses to wills executed under the Civil Code of the Philippines.

In the case at bar, the finding that each and everyone of the three instrumental

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witnesses, namely, Matilde Orobia, Celso Gimpaya and Maria Gimpaya, are competent and credible is satisfactorily supported by the evidence as found by the respondent Court of Appeals, which findings of fact this Tribunal is bound to accept and rely upon. Moreover, petitioner has not pointed to any disqualification of any of the said witnesses, much less has it been shown that anyone of them is below 18 years of age, of unsound mind, deaf or dumb, or cannot read or write.

It is true that under Article 805 of the new Civil Code, every will, other than a holographic will, must be x x x attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. While the petitioner submits that Article 820 and 821 of the new Civil Code speaks of the competency of a witness due to his qualifications under the first Article and none of the disqualifications under the second Article, whereas Article 805 requires the attestation of three or more credible witnesses, petitioner concludes that the term credible requires something more than just being competent and, therefore, a witness in addition to being competent under Articles 820 and 821 must also be a credible witness under Article 805.

Petitioner cites American authorities that competency and credibility of a witness are not synonymous terms and one may be a competent witness and yet not a credible one. She exacerbates that there is no evidence on record to show that the instrumental witnesses are credible in themselves, that is, that they are of good standing in the community since one was a family driver by profession and the second the wife of the driver, a housekeeper. It is true that Celso Gimpaya was the driver of the testatrix and his wife Maria Gimpaya, merely a housekeeper, and that Matilde Orobia was a piano teacher to a grandchild of the testatrix. But the relation of employer and employee much less the humble social or financial position of a person do not disqualify him to be a competent testamentary witness. (Molo-Pekson and Perez-Nable v Tanchuco, et al., 100 Phil 344; Testate Estate of Raymundo, Off. Gaz., March 18, 1941, p. 788.)

Private respondent maintains that the qualifications of the three or more credible witnesses mentioned in Article 805 of the Civil Code are those mentioned in Article 820 of the same Code, this being obvious from that portion of Article 820 which says "may be a witness to the execution of a will mentioned in Article 805 of this Code," and cites authorities that the word "credible" insofar as witnesses to a will are concerned simply means "competent." Thus in the case of Suntay v Suntay, 95 Phil 500, the Supreme Court held that "Granting that a will was duly executed and that it was in existence at the time of, and not revoked before, the death of the testator, still the provisions of the lost will may be clearly and distinctly proved by at least two credible witnesses. "Credible witnesses" mean competent witnesses and not those who testify to facts from or upon hearsay.

In Molo-Pekson and Perez-Nable v Tanchuco, et al., 100 Phil 344, the Supreme Court held that "Section 620 of the same Code of Civil Procedure provides that any person of sound mind, and of the age of eighteen years or more, and not blind, deaf, or dumb, able to read and write, may be a witness to the execution of a

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will." This same provision is reproduced in our new Civil Code of 1950, under Article 820. The relation of employer and employee, or being a relative of the beneficiary in a will, does not disqualify one to be a witness to a will. The main qualification of a witness in the attestation of wills, if other qualifications as to age, mental capacity and literacy are present, is that said witness must be credible, that is to say, his testimony may be entitled to credence. There is a long line of authorities on this point, a few of which we may cite:

A "credible witness" is one who is not disqualified to testify by mental incapacity, crime or other cause. Historical Soc. of Dauphin County v Kelker, 74 A. 619, 226 {a. 16, 134 Am. St., Rep. 1010. (Words and Phrases, Vol. 10, p. 340).

As construed by the common law, a "credible witness" to a will means a "competent witness." Appeal of Clark, 95 A. 517, 114 Me. 105, Ann. Cas. 1917A, 837. (Ibid., p. 341).

Expression "credible witness" in relation to attestation of wills means "competent witness;" that is, one competent under the law to testify to facts of execution of will. Vernon's Ann. Civ. St. art. 8283. Moos v First State Bank of Uvalde, Tex. Civ. App. 60 S.W. 2d 888, 889. (Ibid., p. 342).

The term "credible" used in the statute of wills requiring that a will shall be attested by two credible witnesses means competent witnesses who, at the time of attesting the will, are legally competent to testify, in a court of justice, to the facts attested by subscribing the will, the competency being determined as of the date of the execution of the will and not of the time it is offered for probate. Smith v Goodell, 101 N.E. 255, 256, 258 Ill. 145. (Ibid.).

"Credible witnesses," as used in the statute relating to wills, means competent witnesses - that is, such persons as are not legally disqualified from testifying in courts of justice, by reason of mental incapacity, interest, or the commission of crimes, or other causes excluding them from testifying generally, or rendering them incompetent in respect of the particular subject matter or in the particular suit. Hill v Chicago Title & Trust Co., 152 N.E. 545, 546, 322 Ill 42. (Ibid. p. 343)

In the strict sense, the competency of a person to be an instrumental witness to a will is determined by the statute, that is Articles 820 and 821, Civil Code, whereas his credibility depends on the appreciation of his testimony and arises from the belief and conclusion of the Court that said witness is telling the truth. Thus, in the case of Vda. de Aroyo v El Beaterio del Santissimo Rosario de Molo, No. L-22005, May 3, 1968, the Supreme Court held and ruled: "Competency as a witness is one thing, and it is another to be a credible witness, so credible that the court must accept what he says. Trial courts may allow a person to testify as a witness upon a given matter because he is competent, but may thereafter decide whether to believe or not to believe his testimony."

In fine, We state the rule that the instrumental witnesses in order to be

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competent must be shown to have the qualifications under Article 820 of the Civil Code and none of the disqualifications under Article 821 and for their testimony to be credible, that is worthy of belief and entitled to credence, it is not mandatory that evidence be first established on record that the witnesses have a good standing in the community or that they are honest and upright or reputed to be trustworthy and reliable, for a person is presumed to be such unless the contrary is established otherwise. In other words, the instrumental witnesses must be competent and their testimonies must be credible before the court allows the probate of the will they have attested. We, therefore, reject petitioner's position that it was fatal for respondent not to have introduced prior and independent proof of the fact that the witnesses were "credible witnesses," that is, that they have a good standing in the community and reputed to be trustworthy and reliable.

x x x

WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is hereby AFFIRMED, with costs against the petitioner.

SO ORDERED.

Teehankee, Makasiar, de Castro and Herrera, JJ., concur.

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GAGO v MAMUYACNo. 26317, 29 January 1927

49 Phil 902

A will being essentially ambulatory, it may be revoked at any time by the testator at any time prior to his death. Article 830 enumerates the modes of revocation. Gago holds that a revocation of the will may be implied if the testator in his lifetime had ready access to the same, and that after his death the will cannot be found. The presumption, while disputable, may be reinforced by testimony regarding the circumstances of the alleged revocation of the will. And if the presumption of revocation should apply, a duplicate copy of the said will cannot be admitted to probate.

Please note that in Gan v Yap, the Court had the occasion to opine that a lost holographic will might be proved through a photographic, photostatic, mimeographed or carbon copy thereof. And in Rodelas v Aranza, the court reversed an order of the probate court which dismissed the proceeding based solely on the fact that the original copy of the holographic will could not be presented for examination.

Johnson, J.:

The purpose of this action was to obtain the probation of a last will and testament of Miguel Mamuyac, who died on the 2nd day of January 1922, in the Municipality of Agoo of the Province of La Union. It appears from the records that on or about the 27th day of July 1918, the said Miguel Mamuyac executed a last will and testament (Exhibit "A"). In the month of January 1922, the said Francisco Gago presented a petition in the Court of First Instance of the Province of La Union for the probation of that will. The probation of the same was opposed by Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac (civil cause no. 1144, Province of La Union). After hearing all of the parties, the petition for probation of said will was denied by the Honorable C. M. Villareal on the 2d day of November 1923, upon the ground that the deceased had on the 16th day of April 1919, executed a new will and testament.

On the 21st day of February 1925, the present action was commenced. Its purpose was to secure the probation of the said will of the 16th day of April 1919 (Exhibit 1). To said petition Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon and Catalina Mamuyac presented their oppositions, alleging (a) that the said will is a copy of the second will and testament executed by the said Miguel Mamuyac; (b) that the same had been canceled and revoked during the lifetime of Miguel Mamuyac, and (c) that the said will was not the last will and testament of the deceased Miguel Mamuyac.

Upon the issue thus presented, the Honorable Anastacio R. Teodoro, judge, after hearing the respective parties, denied the probation of said will of April 16, 1919, upon the ground that the same had been canceled and revoked in the year 1920. Judge Teodoro, after examining the evidence adduced, found that the following facts

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had been satisfactorily proved:That Exhibit "A" is a mere carbon copy of its original which remained

in the possession of the deceased testator Miguel Mamuyac, who revoked it before his death as per testimony of witnesses Jose Fenoy, who typed the will of the testator on April 16, 1919, and Carlos Bejar, who saw on December 30, 1920, the original of Exhibit "A" (will of 1919) actually canceled by the testator Miguel Mamuyac, who assured Carlos Bejar that inasmuch as he had sold him a house and the land where the house was built, he had to cancel it (the will of 1919), executing thereby a new testament. Narcisa Gago in a way corroborates the testimony of Jose Fenoy, admitting that the will executed by the deceased (Miguel Mamuyac) in 1919 was found in the possession of father Miguel Mamuyac. The opponents have successfully established the fact that father Miguel Mamuyac had executed in 1920 another will. The same Narcisa Gago, the sister of the deceased, who was living in the house with him, when crossed-examined by attorney for the opponents, testified that the original of Exhibit "A" could not be found. For the foregoing consideration and for the reason that the original of Exhibit "A" has been canceled by the deceased father Miguel Mamuyac, the court disallows the probate of Exhibit "A" for the applicant.

From that order the petitioner appealed.

The appellant contends that the lower court committed an error in not finding from the evidence that the will in question had been executed with all the formalities required by law; that the same had been revoked and canceled in 1920 before his death; that the said will was a mere carbon copy and that the oppositors were not estopped from alleging that fact.

With reference to the said cancellation, it may be stated that there is positive proof, not denied, which was accepted by the lower court, that the will in question had been canceled in 1920. The law does not require any evidence of the revocation or cancellation of a will to be preserved. It therefore becomes difficult at times to prove the revocation or cancellation of wills. The fact that such cancellation or revocation has taken place must either remain unproved or be inferred from evidence showing that after due search the original will cannot be found. Where a will which cannot be found is shown to have been in the possession of the testator, when last seen, the presumption is, in the absence of other competent evidence, that the same was canceled or destroyed. The same presumption arises where it is shown that the testator had ready access to the will and it cannot be found after his death. It will not be presumed that such will has been destroyed by any other person without the knowledge or authority of the testator. The force of the presumption of cancellation or revocation by the testator, while varying greatly, being weak or strong according to the circumstances is never conclusive, but may be overcome by proof that the will was not destroyed by the testator with the intent to revoke it.

In view of the fact that the original will of 1919 could not be found after the death of the testator Miguel Mamuyac and in view of the positive proof that the same had been canceled, we are forced to the conclusion that the conclusions of the lower court are in accordance with the weight of evidence. In a proceeding to probate a will,

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the burden of proof is upon the proponent clearly to establish not only its execution but its existence. Having proved its execution by the proponents, the burden is on the contestant to show that it has been revoked. In a great majority of instances in which wills are destroyed for the purpose of revoking them there is no witness to the act of cancellation or destruction and all evidence of its cancellation perishes with the testator. Copies of wills should be admitted by the courts with great caution. When it is proven, however, by proper testimony that a will was executed in duplicate and each copy was executed with all the formalities and requirements of the law, then the duplicate may be admitted in evidence when it is made to appear that the original has been lost and was not canceled or destroyed by the testator. (Borromeo v Casquijo, G.R. No. 26063)

After a careful examination of the entire record, we are fully persuaded that the will presented for probate had been canceled by the testator in 1920. Therefore, the judgment appealed from is hereby affirmed. And without any finding as to costs, it is so ordered.

Street, Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.

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TESTATE ESTATE OF ADRIANA MALOTO v COURT OF APPEALSNo. L-76464, 29 February 1988

158 SCRA 451

The burning of a will is one of the modes of revocation. Under Article 830, the act of destroying the document must be done by the testator himself, and if done by a third person, it must be executed pursuant to the testator's express direction and in his presence. Maloto reversed the Court of Appeals which upheld the revocation of the will on the basis of sufficient proof of animus recovandi on the part of the testator. While there are various requisites for the validity of a revocation by means of an overt act (which requisites were not discussed in Maloto), this case holds that if a third person executed the overt act of destroying the will, the same must be upon the express direction of the testator and in his presence. Both requisites must be duly proved, otherwise evidence intended to establish the due execution and the contents of the destroyed will might be admissible. If the due execution and the contents of the destroyed will is sufficiently established, the will may be admitted to probate as a will which had been invalidly revoked.

Sarmiento, J.:

This is not the first time that the parties to this case come to us. In fact, two other cases directly related to the present one and involving the same parties had already been decided by us in the past. In G.R. No. L-30479, which was a petition for certiorari and mandamus instituted by the petitioners herein, we dismissed the petition ruling that the more appropriate remedy of the petitioners is a separate proceeding for the probate of the will in question. Pursuant to the said ruling, the petitioners commenced in the then Court of First Instance of Iloilo, Special Proceeding No. 2176, for the probate of the disputed will, which was opposed by the private respondents presently, Panfilo and Felino, both surnamed Maloto. The trial court dismissed the petition on April 30, 1970. Complaining against the dismissal, again, the petitioners came to this Court on a petition for review by certiorari. Acting on the said petition, we set aside the trial court's order and directed it to proceed to hear the case on the merits. The trial court, after hearing, found the will to have already been revoked by the testatrix, Adriana Maloto, and thus, denied the petition. The petitioners appealed the trial court's decision to the Intermediate Appellate Court which, on June 7, 1985, affirmed the order. The petitioners' motion for reconsideration of the adverse decision proved to be of no avail, hence, this petition.

For a better understanding of the controversy, a factual account would be a great help.

On October 20, 1963, Adriana Maloto died leaving as heirs her niece and nephews, the petitioners Aldina Maloto-Casiano and Constancio Maloto, and the private respondents Panfilo Maloto and Felino Maloto. Believing that the deceased did not leave behind a last will and testament, these four heirs commenced on November 4, 1963 an intestate proceeding for the settlement of their aunt's estate. The case was instituted in the then Court of First Instance of Iloilo and was docketed as Special

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Proceeding No. 1736. However, while the case was still in progress, or to be exact on February 1, 1964, the parties - Aldina, Constancio, Panfilo and Felino - executed an agreement of extra judicial settlement of Adriana's estate. The agreement provided for the division of the estate into four equal parts among the parties. The Malotos then presented the extra judicial settlement agreement to the trial court for approval which the court did on March 21, 1964. That should have signalled the end of the controversy, but unfortunately, it had not.

Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former associate of Adriana's counsel, the late Atty. Eliseo Hervas, discovered a document entitled "KATAPUSAN NGA PAGBULUT-AN (Testamento)", dated January 3, 1940, and purporting to be the last will and testament of Adriana. Atty. Palma claimed to have found the testament, the original copy, while he was going through some materials inside the cabinet drawer formerly used by Atty. Hervas. The document was submitted to the office of the Clerk of Court of First Instance of Iloilo on April 1, 1967. Incidentally, while Panfilo and Felino are still named as heirs in the said will, Aldina and Constancio are bequeathed much bigger and more valuable shares in the estate of Adriana than what they received by virtue of the agreement of extra judicial settlement they had earlier signed. The will likewise gives devises and legacies to other parties, among them being the petitioners Asilo de Molo, the Roman Catholic Church of Molo, and Purificacion Miraflor.

Thus, on May 24, 1967, Aldina and Constancio, joined by the other devisees and legatees named in the will, filed in Special Proceeding No. 1736 a motion for reconsideration and annulment of the proceedings therein and for the allowance of the will. When the trial court denied their motion, the petitioners came to us by way of a petition for certiorari and mandamus assailing the orders of the trial court. As we stated earlier, we dismissed that petition and advised that a separate proceeding for the probate of the alleged will would be the appropriate vehicle to thresh out the matters raised by the petitioners.

Significantly, the appellate court while finding as inconclusive the matter on whether or not the document or papers allegedly burned by the house help of Adriana, Guadalupe Maloto vda. de Coral, upon instructions of the testatrix, was indeed the will, contradicted itself and found that the will had been revoked. The respondent court stated that the presence of animus revocandi in the destruction if the will, had nevertheless, been sufficiently proven. The appellate court based its findings on the facts that the document was not in the two safes in Adriana's residence, by the testatrix going to the residence of Atty. Hervas to retrieve a copy of the will left in the latter's possession, and her seeking the services of Atty. Palma in order to have a new will drawn up. For reasons shortly to be explained, we do not view such facts, even considered collectively, as sufficient bases for the conclusion that Adriana Maloto's will had been effectively revoked.

There is no doubt as to the testamentary capacity of the testatrix and the due execution of the will. The heart of the case lies on the issue as to whether or not the will was revoked by Adriana.

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The provisions of the new Civil Code pertinent to the issue can be found in Article 830.

Art. 830. No will shall be revoked except in the following cases:(1) By implication of law; or(2) By some will, codicil, or other writing executed as provided in case of wills;

or(3) By burning, tearing, canceling or obliterating the will with the intention of

revoking it, by the testator himself, or by some other person in his presence, and by his express direction. If burned, torn, canceled or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its contents and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are established according to the Rules of Court.

It is clear that the physical act of destruction of a will, like burning in this case, does not per se constitute an effective revocation, unless the destruction is coupled with animus revocandi on the part of the testator. It is not imperative that the physical destruction be done by the testator himself. It may be performed by another person but under the express direction and in the presence of the testator. Of course, it goes without saying that the document destroyed must be the will itself.

In this case, while animus revocandi, or the intention to revoke, may be conceded, for that is a state of mind, yet that requisite alone would not suffice. Animus revocandi is only one of the necessary elements for the effective revocation of a last will and testament. The intention to revoke must be accompanied by the overt physical act of burning, tearing, obliterating or canceling the will carried out by the testator or by another person in his presence and under his express direction. There is paucity of evidence to show compliance with these requirements. For one, the document or papers burned by Adriana's maid, Guadalupe, was not satisfactorily established to be a will at all, much less the will of Adriana Maloto. For another, the burning was not proven to have been done under the express direction of Adriana. And then, the burning was not in her presence. Both witnesses, Guadalupe and Eladio, were one in stating that they were the only ones present at the place where the stove (presumably in the kitchen) was located in which the papers proffered as the will were burned.

The respondent appellate court in assessing the evidence presented by the respondents as oppositors in the trial court, concluded that the testimony of the two witnesses who testified in favor of the will's revocation appear "inconclusive." We share the same view. Nowhere in the records before us does it appear that the two witnesses, Guadalupe Vda. de Corral and Eladio Itchon, both illiterates, were unequivocally positive that the document burned was indeed Adriana's will. Guadalupe, we think, believed that the papers she destroyed was the will only because, according to her, Adriana told her so. Eladio, on the other hand, obtained his information that the burned document was the will because Guadalupe told him so, thus his testimony on this point is double hearsay.

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At this juncture, we reiterate that "(it) is an important matter of public interest that a purported will is not denied legalization on dubious grounds. Otherwise, the very institution of testamentary succession will be shaken to its very foundations x x x."

x x x

One last note. The private respondents point out that revocation could be inferred from the fact that "(a) major and substantial bulk of the properties mentioned in the will had been disposed of: while an insignificant portion of the properties remained at the time of death (of the testatrix); and, furthermore, more valuable properties have been acquired after the execution of the will on January 3, 1940. Suffice it to state here that as these additional matters raised by the private respondents are extraneous to this special proceeding, they could only be appropriately taken up after the will has been duly probated and a certificate of its allowance issued.

WHEREFORE, judgment is hereby rendered REVERSING and SETTING ASIDE the Decision dated June 7, 1985 and the Resolution dated October 22, 1986, of the respondent Court of Appeals, and a new one ENTERED for the allowance of Adriana Maloto's last will and testament. Costs against the private respondents.

This Decision is IMMEDIATELY EXECUTORY.

SO ORDERED.

Yap (Chairman), Melencio-Herrera and Paras, JJ., concur. Padilla, J., no part in the deliberation.

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RODRIGUEZ v RODRIGUEZG.R. No. 175720, 11 September 2007

642 SCRA 642

Rodriguez emphasizes the need for probate of a will, as mandated in Article 838 of the Civil Code. Without probate, the will is ineffective and does not produce legal effect. In this case, the Supreme Court recognized the testator’s right, during his lifetime, to sell the property which he had previously adjudicated to his heirs in his will. In this regard, the provision of Article 957 of the Civil Code is worth considering: “The legacy or devise shall be without effect: x x x (2) If the testator by any title or for any cause alienates the thing bequeathed or any part thereof, it being understood that in the latter case the legacy or devise shall be without effect only with respect to the part thus alienated. x x x. Article 957 is one of the 7 provisions of the Civil Code and the Family Code which pertains to implied revocation of a testamentary disposition.

Ynares-Santiago, J.:

Juanito Rodriguez owned a five-door apartment located at San Jose Street, Guadalupe Nuevo, Makati City, and covered by TCT No. 144865. On October 27, 1983, Juanito executed a “Huling Habilin at Testamento” giving petitioner Crecenciana Tubo Rodriguez, his live-in partner, apartments D and E, and his children Benjamin Rodriguez (the deceased husband of respondent Evangeline Rodriguez), apartment A, respondent Buenaventura Rodriguez, apartment B, and respondent Belen Rodriguez, apartment C.

However, on June 14, 1984, Juanito executed a Deed of Absolute Sale over the property in favor of petitioner. Thus, TCT No. 144865 was cancelled and a new TCT No. 150431 was issued in the name of the petitioner.

The case arose when petitioner filed on September 20, 2001 a complaint for unlawful detainer against the respondents alleging that she is the lawful and registered owner of the property; and that in 1984, she allowed respondents Evangeline, Buenaventura and Belen, out of kindness and tolerance, to personally occupy units A, B and D, respectively. However, without her knowledge and consent, respondents separately leased the units to Montano Magpantay, Mel Navarro and Socorro Escota, who despite repeated demands, failed and refused to vacate the premises and to pay the rentals thereof.

In their answer, respondents claimed ownership over the subject property by succession. They alleged that while petitioner is the registered owner of the property, however, she is not the lawful owner thereof because the June 14, 1984 Deed of Absolute Sale was simulated and void. x x x respondent maintain that petitioner exerted undue influence over their father, who at the time was seriously ill, to agree to the sale of the property for only Php20,000.00 after knowing that only two apartments were given to her in the Huling Habilin at Testamento. Further, she had no cause of action against them for being a party to the August 23, 1990 Partition Agreement wherein they recognized each other as co-owners and partitioned the

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property in accordance with the provision of the last will and testament.

x x x the MTC rendered a judgment in favor of the respondents and held that the deed of sale was simulated otherwise petitioner would not have entered into the Partition Agreement, which legally conferred upone each heir exclusive ownership over their respective shares x x x.

On appeal the RTC reversed the decision of the MTC. It held that petitioner’s certificate of title is conclusive evidence of ownership of the land described therein; and that unless and until said title has been annulled by a court of competent jurisdiction, such title is existing and valid. This is true also with respect to the deed of sale. The present action which involves only the issue of physical or material possession, is not the proper action to challenge it. Further, the MTC erred when it relied heavily on the Huling Habilin at Testamento which was not probated hence has no effect and no right can be claimed therein. The Partition Agreement which was allegedly entered into pursuant to the Huling Habilin at Testamento should not also be considered.

x x x

Aggrieved, respondents filed a petition for review before the Court of Appeals which reversed and set aside the decision of the RTC and reinstated the decision of the MTC. It held that the MTC correctly received evidence on ownership since the question of possession could not be resolved without deciding the issue of ownership. Further, the Huling Habilin at Testamento transmitted ownership of the specific apartments not only to the respondents but also to the petitioner; and pursuant thereto, the parties executed the Partition Agreement in accordance with the wishes of the testator.

x x x

The motion for reconsideration was denied, hence, petitioner filed the present petition for review raising the following errors: x x x

Petitioner alleges that as the registered owner of the subject property, she enjoys the right of possession thereof and that question of ownership cannot be raised in an ejectment case unless it is intertwined with the issue of possession. While the court may look into the evidence of title or ownership and possession de jure to determine the nature of possession, it cannot resolve the issue of ownership because the resolution of said issue would effect an adjudication on ownership which is not proper in the summary action for unlawful detainer. Petitioner insists that the Court of Appeals erred in ruling that the Huling Habilin at Testamento transmitted ownership of the specific apartments disregarding the fact that the same is not probated yet and that the testator changed or revoked his will by selling the property to petitioner prior to his death.

x x x

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The petition has merit.The lower courts considered the following documentary evidence in arriving at

their respective decisions, albeit the RTC decision contradicts that of the MTC and Court of Appeals: 1) Huling Habilin at Testamento executed by Juanito Rodriguez on October 27, 1983; 2) Deed of Sale of the property executed by Juanito Rodriguez and the petitioner on June 14, 1984; 3) TCT No. 150431 in the name of petitioner; and 4) the August 23, 1998 Partition Agreement executed by both the respondents and the petitioner.

Based on the following documentary evidence, we find that there is preponderance of evidence in favor of the petitioner’s claim. Respondents failed to prove their right of possession, as the Huling Habili at Testamento and the Partition Agreement have no legal effect since the will has not been probated. Before any will can have force or validity it must be probated. This cannot be dispensed with and is a matter of public policy. Article 838 of the Civil Code mandates that “[n]o will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court.” As the will was not probated, the Partition Agreement which was executed pursuant thereto can not be given effect. Thus, the fact that petitioner was a party to said agreement becomes immaterial in the determination of the issue of possession.

Moreover, at the time the deed of sale was executed inn favor of the petitioner, Juanito Rodriguez remained the owner thereof since ownership would only pass to his heirs at the time of his death. Thus, as owner of the property, he had the absolute right to dispose of it during his lifetime. Now, whether or not the disposition was valid is an issue that can be resolved only in Civil Case No. 02-1641, an action instituted by the respondent for that purpose.

We are, thus, left with the deed of sale and the certificate of title over the property to consider. We agree with the RTC that a certificate of title is conclusive evidence of ownership of the land described therein; the validity of which shall not be subject to a collateral attack, especially in an ejectment case which is summary in nature.

x x x

x x x Our ruling that petitioner has the better right of possession was arrived at on the basis of evidence without prejudice to the eventual outcome of the annulment case, where the issue as to who has title to the property in question is fully threshed out. x x x

WHEREFORE, in view of the foregoing, the Decision of the Court of Appeals in CA-G.R. SP No. 91142 dated June 27, 2006 is reversed and set aside. The Decision of the Regional Trial Court of Makati, Branch 134, in Civil Case No. 0-3-517, reversing the Decision of the Metropolitan Trial Court (MTC) of Makati, Branch 63 in Civil Case No. 75717 is reinstated.

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Austria-Martinez, Chico-Nazareno, Nachura and Reyes, JJ, concur.

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HEIRS OF ROSENDO LASAM v UMENGANG.R. No. 168156, 6 December 2006

510 SCRA 496

Lasam emphasizes the necessity of probate. Without which, a purported will cannot be the source of any right and could not be relied upon to establish the right to possession.

Lasam further confirms the ambulatory nature of a will, such that at any time prior to his death, the testator may change or revoke it.

Callejo Sr., J.:

x x x

The lot subject of the unlawful detainer case is situated in Tuguegarao City, Cagayan. It is the eastern half portion of Lot No. 5427 and Lot No. 990. The first lot, Lot No. 5427 containing an area of 1,037 square meters, is covered by Original Certificate of Title (OCT) No. 196. The second lot, Lot No. 990 containing an area of 118 sq. m., is covered by OCT No. 1032. These lots are registered in the names of the original owners, spouses Pedro Cuntapay and Leona Bunagan.

In an instrument denominated as Deed of Confirmation and acknowledged before a notary public on June 14, 1979, the heirs of the said spouses conveyed the ownership of Lots Nos. 990 and 5427 in favor of their two children, Irene Cuntapay and Isabel Cuntapay. In another instrument entitled Partition Agreement and acknowledged before a notary pubic on December 28, 1979, it was agreed that the eastern half portion (subject lot) of Lots Nos. 990 and 5427 shall belong to the heirs of Isabel Cuntapay. On the other hand, the remaining portion thereof (the west portion) shall belong to the heirs of Irene Cuntapay. The subject lot (eastern half portion) has an area of 554 sq. m.

Pedro Cuntapay and Leona BunaganOriginal Owners of the Property

Lot Nos. 5427 and 990West Side: 679 square meters

Heirs of Irene CuntapayEast Side: 554 square meters

Heirs of Isabel Cuntapay1st marriage to Domingo Turingan: 1. Abdon2. Sado (deceased)3. Rufo4. Maria

2nd marriage to Mariano Lasam: 1. Trinidad2. Rosendo

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Isabel Cuntapay had four children by her first husband, Domingo Turingan, namely: Abdon, Sado (deceased), Rufo, and Maria. When Domingo Turingan passed away, Isabel Cuntapay remarried Mariano Lasam. She had two other children by him, namely: Trinidad and Rosendo.

Sometime in January 2001, the heirs of Rosendo Lasam (son of Isabel by her second husband) filed with the MTCC a complaint for unlawful detaining against Vicenta Umengan, who was then occupying the subject lot. Vicenta Umengan is the daughter of Abdon Turingan (son of Isabel Cuntapay by her first husband).

In their complaint, the heirs of Rosendo Lasam alleged that they are the owners of the subject lot, having inherited it from their father. Rosendo Lasam was allegedly the sole heir of the deceased Pedro Cuntapay through Isabel Cuntapay. During his lifetime, Rosendo Lasam allegedly temporarily allowed Vicenta Umengan to occupy the subject lot sometime in 1955. The latter and her husband allegedly promised that they would vacate the subject lot upon demand. However, despite written notice and demand by the heirs of Rosendo Lasam, Vicenta Umengan allegedly unlawfully refused to vacate the subject lot and continued to possess the same. Accordingly, the heirs of Rosendo Lasam were constrained to institute the action for ejectment.

In her Answer with counterclaim, Vicenta Umengan specifically denied the material allegations in the complaint. She countered that when Isabel Cuntapay passed away, the subject lot was inherited by her six children by her first and second marriages through intestate succession. Each of the six children allegedly had a pro indiviso share of 1/6 of the subject lot.

It was further alleged by Vicenta Umengan that her father, Abdon Turingan, purchased the respective 1/6 shares in the subject lots of his siblings Maria and Sado. These conveyances were allegedly evidenced by the Deed of Sale dated March 3, 1975 appearing as Doc. No. 88, Page 36. Book No. XIV, series of 1975 of the notarial book of Atty. Pedro Lagui.

Prior thereto, Rufo already sold his 1/6 share in the subject lot to Vicenta Umengan and her husband as evidenced by the Deed of Sale dated June 14, 1961, appearing as Doc. No. 539, Page No. 41, Book No. V, series of 1961 of the notarial book of Atty. Pedro Lagui. Also on June 14, 1961, Abdon donated his 1/6 share in the subject lot to her daughter Vicenta Umengan as evidenced by the Deed of Donation appearing as Doc. No. 538, Page No. 41, Book No. V, series of 1961 of the notarial book of the same notary public.1

1 NOTE: Based on Vicenta’s allegations, she owns and aggregate 4/6 share of the subject property by virtue of the following transactions:1. March 3, 1975 – Purchase by Abdon of combined 2/6 shares of Maria and Sato, which Vicenta acquired from her father through intestate succession;2. June 14. 1961 – Donation by Abdon of his 1/6 share of the property to Vicenta; and3. June 14, 1961 – Purchase by Vicenta of the 1/6 share of Rufo

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According to Vicenta Umengan, the children of Isabel Cuntapay by her second husband (Rosendo and Trinidad Lasam) own only 2/6 portion of the subject lot. She thus prayed that the complaint for ejectment be dismissed and that the heirs of Rosendo Lasam be ordered to pay her damages.

The MTCC rendered judgment in favor of the heirs of Rosendo Lasam and directed the ejectment of Vicenta Umengan. In so ruling, the MTCC gave credence to the newly discovered last will and testament (entitled Testamento Abierto) purportedly executed by Isabel Cuntapay where she bequeathed the subject lot to her son Rosendo Lasam, thus:

“x x x my share 1/5 (one fifth) of the Cuntapay heirs, bordered on the North by Sr. Elia Canapi; to the South, by Calle Aguinaldo; to the East, by Calle P. Burgos and the West, by the late Don Luis Alonso; on the property which is my share stands a house of light materials where I presently reside; this 1/5 th

(one-fifth) share of my inheritance from the Cuntapays I leave to my son Rosendo Lasam and also the aforementioned house of light materials x x x.”

The MTCC reasoned that the heirs of Rosendo Lasam anchored their claim over the subject lot on the last will and testament of Isabel Cuntapay while Vicenta Umengan hinged hers on intestate succession and legal conveyances. Citing jurisprudence and Article 1080 of the Civil Code, the MTCC opined that testacy was favored and that intestacy should be avoided and the wishes of the testator should prevail. It observed that the last will and testament of Isabel Cuntapay was not yet probated as required by law; nonetheless, the institution of a probate proceeding was not barred by prescription.

With the finding that the subject lot was already bequeathed by Isabel Cuntapay to Rosendo Lasam, the MTCC held that the siblings Abdon, Sado, Rufo and Maria Turingan no longer had any share thereon. Consequently, they could not convey to Vicenta Umengan what they did not own. On the issue then of who was entitled to possession of the subject lot, the MTCC ruled in favor of the heirs of Rosendo Lasam as it found that Vicenta Umengan’s possession thereof was by mere tolerance. x x x.

On appeal, the RTC affirmed in toto the decision of the MTCC. The RTC echoed the reasoning of the MTCC that the testamentary disposition of the property of Isabel Cuntapay should be respected, and that the heirs of Rosendo Lasam have a better right to possess the subject lot.

x x x

In the assailed Decision dated February 16, 2005, the CA reversed and set aside the decision of the RTC. The appellate court preliminarily upheld the jurisdiction of the MTCC over the subject matter as it found that the allegations in the complaint made out a case for unlawful detainer. The heirs of Rosendo Lasam x x x only sought for Vicenta Umengan to vacate and surrender possession of the subject lot. The CA also rejected the contention of the heirs of Rosendo Lasam that the issue of

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ownership of the subject lot had already been settled in another case, Civil Case No. 4917, before RTC (Branch 3) of Tuguegarao City. x x x.

However, the CA declared that the RTC, as well as the MTCC erred in ruling that, by virtue of the purported last will and testament of Isabel Cutapay, the heirs of Rosendo Lasam have a better right to the subject lot over Vicenta Umengan. The CA explained that the said last will and testament did not comply with the formal requirements of the law on wills.

Specifically, the CA found that the pages of the purported last will and testament were not numbered in accordance with law. Neither did it contain the requisite attestation clause. Isabel Cuntapay as testator and the witnesses to the will did not affix their respective signatures on the second page thereof. The said instrument was likewise not acknowledged before a notary public by the testator and the witnesses. The CA even raised doubts as to its authenticity, noting that while Isabel Cuntapay died in 1947 and the heirs of Rosendo Lasam claimed that they discovered the same only in 1997, a date – May 19, 1956, appeared on the last page of the purported will. The CA opined that if this was the date of execution, then the will was obviously spurious. On the other hand, if this was the date of its discovery, then the CA expressed bafflement as to why the heirs of Rosendo Lasam, through their mother, declared in the Partition Agreement dated December 28, 1979 that Isabel Cuntapay died intestate.

It was observed by the CA that as against these infirmities in the claim of the heirs of Rosendo Lasam, Vicenta Umengan presented a Deed of Sale and a Deed of Donation to justify her possession of the subject lot. The CA noted that she has also possessed the subject property since 1955. Such prior possession, the CA held, gave Vicenta Umengan has the right to remain in the subject property until a person with a better right lawfully ejects her. The heirs of Rosendo Lasam do not have such a better right. The CA stressed that the ruling on the issue of physical possession does not affect the title to the subject lot nor constitute a binding and conclusive adjudication on the merits on the issue of ownership. The parties are not precluded from filing the appropriate action to directly contest the ownership of or the title to the subject lot.

x x x

The heirs of Rosendo Lasam (petitioners) now come to the Court alleging that the CA committed reversible error in setting aside the decision of the RTC, which had affirmed that of the MTCC, and dismissing their complaint for unlawful detainer against respondent Vicenta Umengan.

Petitioners argue that the CA erred when it held, on one hand, that the MTCC had jurisdiction over the subject matter of the complaint as the allegations therein make out a case for unlawful detainer but, on the other hand, proceeded to discuss the validity of the last will and testament of Isabel Cuntapay.

Petitioners insist that respondent is holding the subject lot by mere tolerance

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and that they, as heirs of Rosendo Lasam who was the rightful owner of the subject lot, have a better right thereto. It was allegedly error for the CA to declare the last will and testament of Isabel Cuntapay as null and void for its non-compliance with the formal requisites of the law on wills. The said matter cannot be resolved in an unlawful detainer case, which only involves the issue of material or physical possession of the disputed property. In any case, they maintain that the said will complied with the formal requirements of the law.

x x x

According to petitioners, respondent’s predecessors-in-interest from whom she derived her claim over the subject lot by donation and sale cold not have conveyed portions thereof to her, as she had claimed, because until the present, it is still covered by OCT Nos. 196 and 1032 under the names of Pedro Cuntapay and Leona Cuntapay. Their respective estates have not been settled up to now.

x x x

The CA correctly held that, as between the respective claims of petitioners and respondent, the latter has a better right to possess the subject lot.

As earlier stated, petitioners rely on the last will and testament of Isabel Cuntapay that they had allegedly newly discovered. On the basis of this instrument, the MTCC and RTC ruled that petitioners have a better right to the possession of the subject lot because, following the law on succession, it should be respected and should prevail over intestate succession.

However, contrary to the ruling of the MTCC and RTC, the purported last will and testament of Isabel Cuntapay could not properly be relied upon to establish petitioners’ right to possess the subject lot because, without having been probated, the said last will and testament cold not be the source of any right.

Article 838 of the Civil Code is instructive:

“Art. 838. No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rule of Court. x x x”

In Cañiza v Court of Appeals, the Court ruled that: “[a] will is essentially ambulatory; at any time prior to the testator’s death, it may be changed or revoked; and until admitted to probate, it has no effect whatever and no right can be claimed thereunder, the law being quite explicit; ‘No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court.’”

Dr. Tolentino, an imminent authority on civil law, also explained that “[b]efore any will can have force or validity, it must be probated. To probate a will means to prove before some officer or tribunal, vested by law with authority for that purpose, that the instrument offered to be proved is the last will and testament of the deceased person whose testamentary act it is alleged to be, and that it has been executed,

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attested and published as required by law, and that the testator was of sound and disposing mind. It is a proceeding to establish the validity of the will.” Moreover, the presentation of the will for probate is mandatory and is a matter of pubic policy.

Following the above truisms, the MTCC and RTC, therefore, erroneously ruled that petitioners have a better right to possess the subject lot on the basis of the purported last will and testament of Isabel Cuntapay, which, to date, has not been probated. Stated in another manner, Isabel Cuntapay’s last will and testament, which has not been probated, has no effect whatever and petitioners cannot claim any right thereunder.

Hence, the CA correctly held that, as against petitioners’ claim, respondent has shown a better right of possession over the subject lot as evidenced by the deeds of conveyances executed in her favor by the children of Isabel Cuntapay by her first marriage.

x x x

Further, it is not quite correct for petitioners to contend that the children of Isabel Cuntapay by her first marriage could not have conveyed portions of the subject lot to respondent, as she had claimed, because until the present, it is still covered by OCT 196 and 1032 under the names of Pedro and Leona Cuntapay. To recall, it was already agreed by the heirs of the said spouses in a Partition Agreement dated December 28, 1979 that the subject lot would belong to Isabel Cuntapay. The latter died leaving her six children by both marriages as heirs. Considering that her purported last will and testament has, as yet, no force and effect for not having been probated, her six children are deemed to be co-owners of the subject lot having their respective pro indiviso shares. The conveyances made by the children of Isabel Cuntapay by her first marriage of their respective pro indiviso shares in the subject lot to respondent are valid because the law recognizes the substantive rights of heirs to dispose of their ideal share in the co-heirship and co-ownership among the heirs. The Court had expounded the principle in this wise:

“This Court had the occasion to rule that there is no doubt that an heir can sell whatever right, interest, or participation he may have in the property under administration, This is a matter which comes under the jurisdiction of the probate court.

The right of an heir to dispose of the decedent's property, even if the same is under administration, is based on the Civil Code provision stating that the possession of hereditary property is deemed transmitted to the heir without interruption and from the moment of the death of the decedent, in case the inheritance is accepted. Where there are however, two or more heirs, the whole estate of the decedent is, before its partition, owned in common by such heirs.

The Civil Code, under the provisions of co-ownership, further qualifies this right. Although it is mandated that each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and thus may alienate, assign or mortgage it, and even substitute another person in its

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enjoyment, the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which maybe allotted to him in the division upon the termination of the co-ownership. In other words, the law does not prohibit a co-owner from selling, alienating or mortgaging his ideal share in the property held in common.

As early as 1942, this court has recognized said right of an heir to dispose of property under administration, In the case of Teves de Jakosalem v Rafols, et al., it was said that the sale made by an heir of his share in an inheritance, subject to the result of the pending administration, is no wise, stands in the way of such administration. The Court then relied on the provision of the old Civil Code, Article 440 and Article 399 which are still in force as Article 533 and Article 493, respectively, in the new Civil Code. The Court also cited the words of a noted civilest, Manresa: “Upon the death of a person, each of his heirs ‘becomes the undivided owner of the whole estate left with respect to the part or portion which might be adjudicated to him, a community of ownership being this formed among the co-owners of the estate which remains undivided.’”

Contrary to the assertion of petitioners, therefore, the conveyances made by the children of Isabel Cuntapay by her first marriage to respondent are valid insofar as their pro-indiviso shares are concerned. Moreover, the CA justifiably held that these conveyances, as evidenced by the deed of donation and deed of sale presented by respondent, coupled with the fact that she has been in possession of the subject lot since 1955, establish that respondent has a better right to possess the same as against petitioners whose claim is largely based on Isabel Cuntapay’s last will and testament which, to date, has not been probated; hence has no force and effect and under which no right can be claimed by petitioners. x x x.

WHEREFORE, premises considered, the petition is DENIED. The assailed Decision dated February 16, 2005 and the Resolution dated May 17, 2005 of the Court of Appeals in CA-G.R. Sp. No. 80032 are AFFIRMED.

SO ORDERED.

Panganiban (C.J., Chairperson), Ynares-Santiago, Austria-Martinez and Chico-Nazario, JJ., concur.

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GALLANOSA v ARCANGELNo. L-29300, 21 June 1978

83 SCRA 676

Article 838 of the Code requires probate as a condition precedent for the effectivity of a will. Probate is limited to a determination of two issues: one, the testamentary capacity of the testator; and two, the due execution of the will. Testamentary capacity has two components: first, the soundness of mind of the testator, and second, the requisite age. Due execution refers to compliance with the formal requisites prescribed by law. If the proponents of the will are able to prove testamentary capacity and due execution, the probate judge will forthwith issue an order admitting the will to probate. Once the probate order becomes final, the testamentary capacity of the testator and the due execution of the will becomes incontestable. Res judicata will apply to any attempt to reopen and or revisit the issues of testamentary capacity and due execution.

Gallanosa illustrates the inevitable result of an attempt to reopen probate proceedings long after the probate order has become final. It is important to note that the present procedural laws do not permit nor sanction the institution of an action for the "annulment" of a will.

Aquino, J.:

The case involves the sixty-one parcels of land in Sorsogon left by Florentino Hitosis, with an estimated value of P50,000.00 and claims for damages exceeding one million pesos. The undisputed facts are as follows:

1. Florentino Hitosis executed a will in the Bicol dialect on June 19, 1938 when he was eighty years old. He died on May 26, 1939 at Irosin, Sorsogon. A childless widower, he was survived by his brother, Leon Hitosis. His other brothers, named Juan, Tito (Juancito), Leoncio (Aloncio) and Apolonio and only sister Teodora, were all dead.

2. On June 24, 1939 a petition for the probate of his will was filed in the Court of First Instance of Sorsogon (Special Proceeding No. 3171). The notice of hearing was duly published. In that will, Florentino bequeathed his one-half share in the conjugal estate to his second wife, Tecla Dollentas, and, should Tecla predecease him, as was the case, his one-half share would be assigned to the spouses Pedro Gallanosa and Corazon Grecia, the reason being that Pedro, Tecla's son by her first marriage, grew up under the care of Florentino; he had treated Pedro as his foster child, and Pedro has rendered services to Florentino and Tecla. Florentino likewise bequeathed his separate properties consisting of three parcels of abaca land and parcel of riceland to his protege (sasacuyang ataman), Adolfo Fortajada, a minor.

3. Opposition to the probate of the will was registered by the testator's legal heirs, namely, his surviving brother, Leon, and his nephews and nieces. After a hearing, wherein the oppositors did not present any evidence in support of their

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opposition, Judge Pablo S. Rivera, in his decision of October 27, 1939, admitted the will to probate and appointed Gallanosa as executor. Judge Rivera specifically found that the testator executed his last will "gozando de buena salud y facultades mentales y no obrando en virtud de amenaza, fraude o influencia indebida."

4. On October 24, 1941, the testamentary heirs, the Gallanosa spouses and Adolfo Fortajada, submitted a project of partition covering sixty-one parcels of land located in various parts of Sorsogon, large cattle and several pieces of personal property which were distributed in accordance with Florentino's will. The heirs assumed the obligations of the estate amounting to P7,129.27 in the portion of P2,376.42 for Adolfo Fortajada and P4,752.85 for the Gallanosa spouses. The project of partition was approved by Judge Doroteo Amador in his order of March 13, 1943, thus confirming the heirs' possession of their respective shares. The testator's legal heirs did not appeal from the decree of probate and from the order of partition and distribution.

5. On February 20, 1952, Leon Hitosis and the heirs of Florentino's deceased brothers and sister instituted an action in the Court of First Instance of Sorsogon against Pedro Gallanosa for the recovery of sixty-one parcels of land. They alleged that they, by themselves or through their predecessors-in-interest, had been in continuous possession of those lands en concepto de dueño and that Gallanosa entered those lands in 1951 and asserted ownership over the lands. They prayed that they be declared the owners of the lands and that they be restored to the possession thereof. They also claimed damages.

6. Gallanosa moved to dismiss the above complaint for lack of cause of action and on the ground of bar by prior judgment in the probate proceeding. Judge Anatolio C. Mañalac dismissed the complaint on the ground of res judicata in his order of August 14, 1952 wherein he said:

It also appears that the plaintiffs and/or their predecessors-in-interest had intervened in the testate proceedings in Civil Case No. 3171 of this court for the purpose of contesting the probate of the will of (the) late Florentino Hitosis; and had their opposition prospered and the will denied probate, the proceedings would have been converted into one of intestacy and the settlement of the estate of the said deceased would have been made in accordance with the provisions of law governing legal or intestate succession x x x, in which case, the said plaintiffs, as the nearest of kin or legal heirs of said Florentino Hitosis, would have succeeded to the ownership and possession of the 61 parcels of land in question forming part of his estate.

However, the decision of the Court was adverse to them, when it dismissed their opposition and ordered the probate of the will. From this decision (Annex K) legalizing the said will, the oppositors did not file any appeal within the period fixed by law, despite the fact that they were duly notified thereof, so that the said decision had become final and it now constitute a bar to any action that the plaintiffs may institute for the purpose of seeking a redetermination of their rights to inherit the properties of the late Florentino Hitosis.

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In other words, the said decision of this Court in Civil Case (Special Proceeding) No. 3171, in which the herein plaintiffs, or their predecessors-in-interest had intervened as parties oppositors, constitutes a final judicial determination of the issue that the said plaintiffs, as ordinary heirs, have no legal right to succeed to any of the properties of the late Florentino Hitosis; consequently, their present claim to the ownership and possession of the 61 parcels of land in question is without any legal merit or basis.

7. The plaintiffs did not appeal from that order of dismissal which should have set the matter at rest, but the same plaintiffs or oppositors to the probate of the will, and their heirs, with a persistence befitting a more meritorious case, filed on September 21, 1967, or fifteen years after the dismissal of Civil Case No. 696 and twenty-eight years after the probate of the will, another action in the same court against the Gallanosa spouses and Adolfo Fortajada for the "annulment" of the will of Florentino Hitosis and for the recovery of the same sixty-one parcels of land. They prayed for the appointment of a receiver.

8. As basis of their complaint, they alleged that the Gallanosa spouses, through fraud and deceit, caused the execution and simulation of the document purporting to be the last will and testament of Florentino Hitosis. While in their 1952 complaint the same plaintiffs alleged that they were in possession of the lands in question, in their 1967 complaint they admitted that since 1939, or from the death of Florentino Hitosis, the defendants (now petitioners) have been in possession of the disputed lands.

9. As already stated, that 1967 complaint, upon motion of the defendants, now the petitioners, was dismissed by respondent judge. The plaintiffs filed a motion for reconsideration. Respondent judge granted it and set aside the order of dismissal. He denied defendants' motion for reconsideration of his order setting aside that dismissal order.

The petitioners or the defendants below contend in this certiorari case that the lower court has no jurisdiction to set aside the 1939 decree of probate and the 1952 order of dismissal in Civil Case No. 696 and that it acted with grave abuse of discretion in not dismissing private respondents' 1967 complaint.

The issue is whether, under the facts set forth above, the private respondents have a cause of action for the "annulment" of the will of Florentino Hitosis and for the recovery of sixty-one parcels of land adjudicated under that will to the petitioners.

We hold that the lower court committed a grave abuse of discretion in reconsidering its order of dismissal x x x.

A rudimentary knowledge of substantive law and procedure is sufficient for an ordinary lawyer to conclude upon a casual perusal of the 1967 complaint that it is baseless and unwarranted.

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What the plaintiffs seek is the "annulment" of a last will and testament duly probated in 1939 by the lower court itself. The proceeding is coupled with an action to recover the lands adjudicated to the defendants by the same court in 1943 by virtue of the probated will, which action is a resuscitation of the complaint of the same parties that the same court dismissed in 1952.

x x x

Our procedural law does not sanction an action for the "annulment" of a will. In order that a will may take effect, it has to be probated, legalized or allowed in the proper testamentary proceeding. The probate of the will is mandatory.

x x x

The 1939 decree of probate is conclusive as to the due execution and formal validity of the will.

That means that the testator was of sound and disposing mind at the time when he executed the will and was not acting under duress, menace, fraud, or undue influence; that the will was signed by him in the presence of the required number of witnesses, and that the will was genuine and is not a forgery. Accordingly, these facts cannot again be questioned in a subsequent proceeding, not even in a criminal action for the forgery of a will.

After the finality of the allowance of a will, the issues as to the voluntariness of its execution cannot be raised anymore.

In Austria v Ventanilla, 21 Phil 180, a "petition for the annulment of a will" was not entertained after the decree of probate has become final.

x x x

On the other hand, the 1943 decree of adjudication rendered by the trial court in the testate proceeding for the settlement of the estate of Florentino Hitosis, having been rendered in a proceeding in rem, is under the above-quoted section 49(a), binding upon the whole world.

It is not only the 1939 probate proceeding that can be interposed as res judicata with respect to private respondents' complaint. The 1952 order of dismissal rendered by Judge Mañalac in Civil Case No. 696, a judgment in personam, was an adjudication on the merits. It constitutes a bar by former judgment under the afore-quoted section 49(a).

The plaintiffs or private respondents did not even bother to ask for the annulment of the testamentary proceeding and the proceeding in Civil Case No. 696. Obviously, they realized that the final adjudications in those cases have the binding force of res judicata and that there is no ground, nor is it timely, to ask for the

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nullification of the final orders and judgments in those two cases.

It is a fundamental concept in the organization of every jural system, a principle of public policy, that, at the risk of occasional errors, judgments of courts should become final at some definite date fixed by law. Interest rei publicae ut finis sit litum. "The very object for which the courts were constituted was to put an end to controversies. (Dy Cay v Crossfield and O'Brien, 38 Phil 521; Pe n alosa v Tuason , 22 Phil 303; de la Cerna v Potot, supra.)

x x x

To hurdle over the obstacle of prescription, the trial court naively adopting the theory of plaintiffs' counsel, held that the action for the recovery of lands had not prescribed because the rule in article 1410 of the Civil Code, that "the action or defense for the declaration of the inexistence of a contract does not prescribe," applies to wills.

That ruling is glaring error. Article 1410 cannot possibly apply to last wills and testaments. The trial court and plaintiffs' counsel relied upon the case of Dingle v Guillermo, 48 O.G. 4410, allegedly decided by this Court, which cited the ruling in Tipton v Velasco, 6 Phil 67, that mere lapse of time cannot give efficacy to void contracts, a ruling elevated to the category of a codal provision in article 1410. The Dingle case was decided by this Court of Appeals. Even the trial court did not take pains to verify the misrepresentation of plaintiffs' counsel that the Dingle case was decided by this Court. An elementary knowledge of Civil Law could have alerted the trial court to the egregious error of plaintiffs' counsel in arguing that article 1410 applies to wills.

WHEREFORE, the lower court's orders of May 3 and June 17, 1968 are reversed and set aside and its order of dismissal dated January 10, 1968 is affirmed. Costs against the private respondents.

SO ORDERED.

Fernando, (Chairman), Barredo, Antonio and Santos, JJ., concur. Concepcion, Jr., J., is on leave.

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MANINANG v COURT OF APPEALSNo. L-57848, 19 June 1982

114 SCRA 478

While as a rule the area of inquiry of a probate court is restricted to the twin issues of testamentary capacity and due execution, practical considerations may necessitate an inquiry into substantive validity. This is particularly true if none of the testamentary dispositions could be given effect and therefore, an inquiry into extrinsic validity would be a waste of time.

Nuguid v Nuguid is squarely in point. However, while much reliance on Nuguid was made by the oppositor in Maninang, the same was not favored by the court since the nullity of the testamentary dispositions in the questioned will did not appear to be indubitable. It seems that the court sought a determination as to whether or not the oppositor was preterited or disinherited under the terms of the questioned will. However, one finer point of law must be considered. While preterition involves the omission of a compulsory heir in the direct line, the supposedly preterited heir in the foregoing case is an adopted child. It would therefore seem that the more crucial issue is the determination as to whether or not an adopted child should be considered as a compulsory heir in the direct line of the testator. The issue is significant because an adopted child may not have blood ties with the testator, and therefore whether or not such adopted child is a relative in the direct line is disputable.

Melencio-Herrera, J.:

x x x

Pertinent to the controversy are the following antecedental facts:

On May 21, 1977, Clemencia Aseneta, single, died at the Manila Sanitarium Hospital at age 81. She left a holographic will, the pertinent portions of which are quoted hereunder.

x x x

It is my will that all my real properties located in Manila, Makati, Quezon City, Albay and Legaspi City and all my personal properties shall be inherited upon my death by Dra. Soledad L. Maninang with whose family I have lived continuously for around the last 30 years now. Dra. Maninang and her husband Pamping have been kind to me. x x x I have found peace and happiness with them even during the time when my sisters were still alive and especially now when I am now being troubled by my nephew Bernardo and niece Salvacion. I am not incompetent as Nonoy like me to appear. I know that is right and wrong. I can decide for myself. I do not consider Nonoy as may adopted son. He has made me do things against my will. x x x

On June 9, 1977, petitioner Soledad Maninang filed a petition for probate of the will of the decedent with the Court of First Instance-Branch IV, Quezon City (Sp.

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Proc. No. Q-23304, hereinafter referred to as the Testate Case).On July 25, 1977, herein respondent Bernardo Aseneta, who, as the adopted

son, claims to be the sole heir of decedent Clemencia Aseneta, instituted intestate proceedings with the Court of First Instance-Branch XI, Pasig, Rizal (Sp. Proc. No. 8569, called hereinafter the Intestate Case, for brevity).

On December 23, 1977, the Testate and Intestate Cases were ordered consolidated before Branch XI, presided by respondent judge.

Respondent Bernardo then filed a Motion to Dismiss the Testate Case on the ground that the holographic will was null and void because, he, as the only compulsory heir, was preterited and, therefore, intestacy should ensue. In support of said Motion to Dismiss, respondent Bernardo cited the cases of Neri v Akutin (72 Phil 322); Nuguid v Nuguid (17 SCRA 449), and Ramos v Baldovino (2 CA Rep. 2d, 878).

In her Opposition to said Motion to Dismiss, petitioner Soledad averred that it is still the rule that in a case for probate of a will, the court's area of inquiry is limited to an examination of and resolution on the extrinsic validity of the will; and that respondent Bernardo was effectively disinherited by the decedent.

On September 8, 1980, the lower court ordered the dismissal of the Testate Case in this wise:

x x x

On December 19, 1980, the lower court denied reconsideration for lack of merit and in the same order appointed Bernardo as the administrator of the intestate estate of the deceased Clemencia Aseneta "considering that he is a forced heir of said deceased while oppositor Soledad Maninang is not, and considering further that Bernardo Aseneta has not been shown to be unfit to perform the duties of the trust."

Petitioners Maninang resorted to a Certiorari Petition before respondent Court of Appeals alleging that the lower court exceeded its jurisdiction in issuing the order of dismissal of the Testate Case and denial of reconsideration.

On April 28, 1991, respondent court denied Certiorari and ruled that the trial judge's order of dismissal was final in nature as it finally disposed of the Testate Case and, therefore, appeal was the proper remedy, which petitioners failed to avail of. Continuing, it said that even granting that the lower court committed errors in issuing the questioned orders, those are errors of judgment reviewable only by appeal and not by certiorari.

Thus, this petition before us.

We find that the court a quo acted in excess of its jurisdiction when it dismissed the Testate Case. Generally, the probate of a will is mandatory.

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No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court.

The law enjoins the probate of the will and public policy requires it, because unless the will is probated and notices thereof given to the whole world, the right of a person to dispose of his property by will may be rendered nugatory.

Normally, the probate of a will does not look into its intrinsic validity.

x x x The authentication of a will decides no other question than such as touch upon the capacity of the testator and the compliance with those requisites or solemnities which the law prescribes for the validity of wills. It does not determine nor even by implication prejudge the validity of efficiency (sic) of the provisions, these may be impugned as being vicious or null, notwithstanding its authentication. The questions relating to these points remain entirely unaffected, and may be raised even after the will has been authenticated x x x.

Opposition to the intrinsic validity or legality of the provisions of the will cannot be entertained in probate proceeding because its only purpose is merely to determine if the will has been executed in accordance with the requirements of the law.

Respondent Bernardo, however, relies on the pronouncement in Nuguid v Nuguid, reading:

In a proceeding for the probate of a will, the court's area of inquiry is limited to an examination of, and resolution on, the extrinsic validity of the will, the due execution thereof, the testatrix's testamentary capacity and the compliance with the requisites or solemnities prescribed by law. The intrinsic validity of the will normally comes only after the court has declared that the will has been duly authenticated. However, where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet that issue.

Our ruling in Balanay v Hon, Martinez has a similar thrust:

The trial court acted correctly in passing upon the will's intrinsic validity even before its formal validity had been established. The probate of a will might become an idle ceremony if on its face it appears to be intrinsically void. Where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue.

The Nuguid and the Balanay cases provide the exception rather than the rule. The intrinsic validity of the wills in those cases was passed upon even before the probate because "practical considerations" so demanded. Moreover, for the parties in the Nuguid case, the "meat of the controversy" was the intrinsic validity of the will; in fact, the parties in that case "shunted aside the question of whether or not the will should be allowed probate." Not so in the case before us now where the probate of the will is insisted on by petitioners and a resolution on the extrinsic validity of the will

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demanded.

Moreover, in the Nuguid case, this Court ruled that the will was intrinsically invalid as it completely preterited the parents of the testator. In the instant case, a crucial issue that calls for resolution is whether under the terms of the decedent's will, private respondent had been preterited or disinherited, and if the latter, whether it was a valid disinheritance. Preterition and disinheritance are two diverse concepts.

x x x Preterition "consists in the omission in the testator's will of the forced heirs or anyone of them, either because they are not mentioned therein or, though mentioned, they are neither instituted as heirs nor are expressly disinherited." Disinheritance, in turn, "is a testamentary disposition depriving any compulsory heir of his share in the legitime for a cause authorized by law." Disinheritance is always "voluntary," preterition, upon the other hand, is presumed to be "involuntary." (Citation omitted).

The effects of preterition and disinheritance are also totally different.

x x x The effects flowing from preterition are totally different from those of disinheritance. Preterition under Article 854 of the new Civil Code "shall annul the institution of heirs." This annulment is in toto, unless in the will there are, in addition, testamentary dispositions in the form of devises or legacies. In ineffective disinheritance under Article 918 of the same Code, such disinheritance shall also "annul the institution of heirs," but only "insofar as it may prejudice the person disinherited," which last phrase was omitted in the case of preterition. Better stated yet, in disinheritance the nullity is limited to that portion of the estate of which the disinherited heirs have been illegally deprived.

By virtue of the dismissal of the Testate Case, the determination of that controversial issue has not been thoroughly considered. We gather from the assailed order of the trial court that its conclusion was that respondent Bernardo has been preterited. We are of the opinion, however, that from the face of the will, that conclusion is not indubitable.

As held in the case of Vda. de Precilla v Narciso,

x x x it is as important a matter of public interest that a purported will is not denied legalization on dubious grounds, otherwise the very institution of testamentary succession will be shaken to its foundation x x x.

x x x

WHEREFORE, the Decision in question is set aside and the orders of the Court of First Instance-Branch XI, Rizal, dated September 8, 1980 and December 19, 1980 are nullified. Special Proceeding No. Q-23304 is hereby remanded to said Court of First Instance-Branch XI, Rizal, therein to be reinstated and consolidated with Special Proceeding No. 8569 for further proceedings.

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Teehankee (Chairman), Makasiar, Plana and Relova, JJ., concur. Vasquez, J., no part. Gutierrez, Jr., J., I concur.

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PASTOR, JR. v COURT OF APPEALSNo. L-56340, 24 June 1983

122 SCRA 885

Pastor is a detailed account of the jurisdiction of a probate court, particularly in the matter of liquidating the estate of a deceased person. The appropriate procedure must be noted in the light of the unusual haste in which the probate judge sought to deliver a legacy to the designated legatee. More importantly, the jurisdiction of a probate court to determine the issue of ownership must be noted.

Plana, J.:

I. Facts:

This is a case of hereditary succession.

Alvaro Pastor, Sr. (Pastor, Sr.), a Spanish subject, died in Cebu City on June 5, 1966, survived by his Spanish wife Sofia Bossio (who also died on October 21, 1966), their two legitimate children Alvaro Pastor, Jr. (Pastor, Jr.) and Sofia Pastor de Midgely (Sofia), and an illegitimate child, not natural, by the name of Lewellyn Barlito Quemada (Quemada). x x x

On November 13, 1970, Quemada filed a petition for the probate and allowance of an alleged holographic will of Pastor, Sr. with the Court of First Instance of Cebu, Branch I (Probate Court), docketed as SP. No. 3128-R. The will contained only one testamentary disposition: a legacy in favor of Quemada consisting of 30% of Pastor Sr.'s 42% share in the operation by Atlas Consolidated Mining and Development Corporation (Atlas) of some mining claims in Pina-Barot, Cebu.

On November 21, 1970, the Probate Court, upon motion of Quemada and after an ex parte hearing, appointed him special administrator of the entire estate of Pastor, Sr., whether or not covered or affected by the holographic will. He assumed office as such on December 4, 1970 after filing a bond of P5,000.00.

On December 7, 1970, Quemada as special administrator, instituted against Pastor, Jr. and his wife an action for reconveyance of alleged properties of the estate, which included the properties subject of the legacy and which were in the names of the spouses Pastor, Jr. and his wife, Maria Elena Achaval de Pastor, who claimed to be the owners thereof in their own rights, and not by inheritance. The action, docketed as Civil Case No. 274-R, was filed with the Court of First Instance of Cebu, Branch IX.

On February 2, 1971, Pastor, Jr. and his sister Sofia filed their opposition to the petition for probate and the order appointing Quemada as special administrator.

On December 5, 1972, the Probate Court issued an order allowing the will to probate. Appealed to the Court of Appeals in CA-G.R. No. 52961-R, the order was affirmed in a decision dated May 9, 1977. On petition for review, the Supreme Court in

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G.R. No. L-46645 dismissed the petition in a minute resolution dated November 1, 1977 and remanded the same to the Probate Court after denying reconsideration on January 11, 1978.

For two years after remand of the case to the Probate Court, Quemada filed pleading after pleading asking for payment of his legacy and seizure of the properties subject of said legacy. Pastor, Jr. and Sofia opposed these pleadings on the ground of pendency of the reconveyance suit with another branch of the Cebu Court of First Instance. All pleadings remained unacted upon by the Probate Court.

x x x

On August 20, 1980, while the reconveyance suit was still being litigated in Branch IX of the Court of First Instance of Cebu, the Probate Court issued the now assailed Order of Execution and Garnishment, resolving the question of ownership of the royalties payable by Atlas and ruling in effect that the legacy to Quemada was not inofficious. [There was absolutely no statement or claim in the Order that the Probate Order of December 5, 1972 had previously resolved the issue of ownership of the mining rights or royalties thereon, nor the intrinsic validity of the holographic will.]

The order of August 20, 1980 found that as per the holographic will and a written acknowledgment of Pastor, Jr. dated June 17, 1962, of the above 60% interest in the mining claims belonging to the Pastor Group, 42% belonged to Pastor, Sr. and only 33% belonged to Pastor, Jr. The remaining 25% belonged to E. Pelaez, also of the Pastor Group. The Probate Court thus directed Atlas to remit directly to Quemada the 42% royalties due decedent's estate, of which Quemada was authorized to retain 75% for himself as legatee and to deposit 25% with a reputable banking institution for payment of the estate taxes and other obligations of the estate. The 33% share of Pastor, Jr. and/or his assignees was ordered garnished to answer for the accumulated legacy of Quemada from the time of Pastor, Sr.'s death, which amounted to over two million pesos.

The order being "immediately executory," Quemada succeeded in obtaining a Writ of Execution and Garnishment on September 4, 1980, and in serving the same to Atlas on the same day. Notified of the Order on September 6, 1980, the oppositors sought reconsideration thereof on the same date primarily on the ground that the Probate Court gravely abused its discretion when it resolved the question of ownership of the royalties and ordered the payment of Quemada's legacy after prematurely passing upon the intrinsic validity of the will. In the meantime, the Probate Court ordered suspension of payment of all royalties due Pastor, Jr. and/or his assignees until after resolution of oppositors' motion for reconsideration.

Before the Motion for Reconsideration could be resolved, however, Pastor, Jr., this time joined by his wife Ma. Elena Achaval de Pastor, filed with the Court of Appeals a Petition for Certiorari and Prohibition with a prayer for writ of preliminary injunction (CA-G.R. No. SP-11373-R). They assailed the order dated August 20, 1980 and the writ of execution and garnishment issued pursuant thereto. The petition was

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denied on November 18, 1980 x x x.

On December 9, 1980, Pastor, Jr. and his wife moved for reconsideration of the Court of Appeals' decision of November 18, 1980, calling the attention of the appellate court to another order of the Probate Court dated November 11, 1980 (i.e., while their petition for certiorari was pending decision in the appellate court), by which the oppositors' motion for reconsideration of the Probate Court's order of August 20, 1980 was denied. [The November 11 Order declared that the questions of intrinsic validity of the will and of ownership over the mining claims (not the royalties alone) had been finally adjudicated by the final and executory Order of December 5, 1972, as affirmed by the Court of Appeals and the Supreme Court, thereby rendering moot and academic the suit for reconveyance then pending in the Court of First Instance of Cebu, Branch IX. It clarified that only the 33% share of Pastor, Jr. in the royalties (less than 7.5% share which he had assigned to Quemada before Pastor, Sr. died) was to be garnished and that as regards Pastor, Sr.'s 42% share, what was ordered was just the transfer of its possession to the custody of the Probate Court through the special administrator. Further, the Order granted Quemada 6% interest on his unpaid legacy from August 1980 until fully paid.] Nonetheless, the Court of Appeals denied reconsideration.

Hence, this Petition for Review by certiorari with prayer for a writ of preliminary injunction, assailing the decision of the Court of Appeals dated November 18, 1980 as well as the orders of the Probate Court dated August 20, 1980, November 11, 1980 and December 17, 1980, filed by petitioners on March 26, 1981, followed by a Supplemental Petition with Urgent Prayer for Restraining Order.

x x x

II. Issues:

Assailed by the petitioners in these proceedings is the validity of the Order of Execution and Garnishment dated August 20, 1980 as well as the Orders subsequently issued allegedly to implement the Probate Order of December 5, 1972, to wit: x x x.

The Probate Order itself, insofar as it merely allowed the holographic will in probate, is not questioned. But petitioners denounce the Probate Court for having acted beyond its jurisdiction or with grave abuse of discretion when it issued the assailed Orders. Their argument runs this way: Before the provisions of the holographic will can be implemented, the questions of ownership of the mining properties and the intrinsic validity of the holographic will must first be resolved with finality. Now, contrary to the position taken by the Probate Court in 1980 - i.e., almost eight years after the probate of the will in 1972 - the Probate Order did not resolve the two said issues. Therefore, the Probate Order could not have resolved and actually did not decide Quemada's entitlement to the legacy. This being so, the Orders for the payment of the legacy in alleged implementation of the Probate Order of 1972 are unwarranted for lack of basis.

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x x x

On the merits, therefore, the basic issue is whether the Probate Order of December 5, 1972 resolved with finality the questions of ownership and intrinsic validity. x x x.

III. Discussion:

1. Issue of Ownership

(a) In a special proceeding for the probate of a will, the issue by and large is restricted to the extrinsic validity of the will, i.e., whether the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by law. (Rules of Court, Rule 75, Section 1; Rule 76, Section 9) As a rule, the question of ownership is an extraneous matter which the probate court cannot resolve with finality. Thus, for the purpose of determining whether a certain property should or should not be included in the inventory of estate properties, the Probate Court may pass upon the title thereto, but such determination is provisional, not conclusive, and is subject to the final decision in a separate action to resolve title. (Valero Vda. de Rodriguez v Court of Appeals, 91 SCRA 540)

(b) The rule is that execution of a judgment must conform to that decreed in the dispositive part of the decision. (Philippine-American Insurance Co. v Honorable Flores, 97 SCRA 811) However, in case of ambiguity or uncertainty, the body of the decision may be scanned for guidance in construing the judgment. (Heirs of Presto v Galang, 78 SCRA 534; Fabular v Court of Appeals, 119 SCRA 329; Robles v Timario, 107 Phil 809)

The Order sought to be executed by the assailed Order of Execution is the Probate Order of December 5, 1972 which allegedly resolved the question of ownership of the disputed mining properties. The said Probate Order enumerated the issues before the Probate Court, thus:

x x x

Specifically placed in issue with respect to the probate proceedings are: (a) whether or not the holographic will (Exhibit "J") has lost its efficacy as the last will and testament upon the death of Alvaro Pastor, Sr. on June 5, 1966, in Cebu City, Philippines; (b) whether or not the said will has been executed with all the formalities required by law; and (c) did the late presentation of the holographic will affect the validity of the same?

Issues in the Administration Proceedings are as follows: (1) Was the ex parte appointment of petitioner as special administrator valid and proper? (2) Is there any indispensable necessity for the estate of the decedent to be placed under administration? (3) Whether or not petition (sic) qualified to be a special administrator of the estate; and (4) Whether or not the properties listed in the inventory (submitted by the special administrator but not approved by

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the Probate Court) are to be excluded.

Then came what purports to be the dispositive portion:Upon the foregoing premises, this Court rules on and resolves some

of the problems and issues presented in these proceedings, as follows:

(a) The Court has acquired jurisdiction over the probate proceedings as it hereby allows and approves the so-called holographic will of testator Alvaro Pastor, Sr., executed on July 31, 1961 with respect to its extrinsic validity, the same having been duly authenticated pursuant to the requisites or solemnities prescribed by law. Let, therefore, a certificate of its allowance be prepared by the Branch Clerk of this Court to be signed by this Presiding Judge, and attested by the seal of the Court, and thereafter attached to the will, and the will and certificate filed and recorded by the clerk. Let attested copies of the will and of the certificate of allowance thereof be sent to Atlas Consolidated Mining & Development Corporation, Goodrich Building, Cebu City, and the Register of Deeds of Cebu or of Toledo City, as the case may be, for recording.

(b) There was a delay in the granting of the letters testamentary or of administration - for as a matter of fact, no regular executor and/or administrator has been appointed up to this time - and the appointment of a special administrator was, and still is, justified under the circumstances to take possession and charge of the estate of the deceased in the Philippines (particularly in Cebu) until the problems causing the delay are decided and the regular executor and/or administrator appointed.

(c) There is a necessity and propriety of a special administrator and later on an executor and/or administrator in these proceedings, in spite of this Court's declaration that the oppositors are the forced heirs and the petitioner is merely vested with the character of a voluntary heir to the extent of the bounty given to him (under) the will insofar as the same will not prejudice the legitimes of the oppositors, for the following reasons:

1. To submit a complete inventory of the estate of the decedent-testator Alvaro Pastor, Sr.;

2. To administer and to continue to put to prolific utilization of the properties of the decedent;

3. To keep and maintain the houses and other structures and fences belonging to the estate, since the forced heirs are residing in Spain, and prepare them for delivery to the heirs in good order after partition and when directed by the Court, but only after the payment of the estate and inheritance taxes.

(d) Subject to the outcome of the suit for reconveyance of ownership and possession of real and personal properties in Civil Case No. 274-T before Branch IX of the Court of First Instance of Cebu, the intestate estate administration aspect must proceed, unless, however, it is duly proven by the oppositors that debts of the decedent have already been paid, that there had

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been an extra judicial partition or summary one between the forced heirs, that the legacy to be given and delivered to the petitioner does not exceed the free portion of the estate of the testator, that the respective shares of the forced heirs have been fairly apportioned, distributed and delivered to the two forced heirs of Alvaro Pastor, Sr., after deducting the property willed to the petitioner, and the estate and inheritance taxes have been paid to the Government thru the Bureau of Internal Revenue.

The suitability and propriety of allowing petitioner to remain as special administrator or administrator of the other properties of the estate of the decedent, which properties are not directly or indirectly affected by the provisions of the holographic will (such as bank deposits, land in Mactan, etc.), will be resolved in another order as separate incident, considering that this order should have been properly issued solely as a resolution on the issue of whether or not to allow and approve the aforestated will.

Nowhere in the dispositive portion is there a declaration of ownership of specific properties. On the contrary, it is manifest that ownership was not resolved. For it confined itself to the question of extrinsic validity of the will, and the need for and propriety of appointing a special administrator. Thus, it allowed and approved the holographic will "with respect to its extrinsic validity, the same having been duly authenticated pursuant to the requisites or solemnities prescribed by law." It declared that the intestate estate administration aspect must proceed "subject to the outcome of the suit for reconveyance of ownership and possession of real and personal properties x x x." (Parenthetically, although the statement refers only to the "intestate" aspect, it defies understanding how ownership by the estate of some properties could be deemed finally resolved for purposes of testate administration, but not so for intestate purposes. Can the estate be the owner of a property for testate but not for intestate purposes?) Then again, the Probate Order (while indeed it does not direct the implementation of the legacy) conditionally stated that the intestate administration aspect must proceed "unless x x x it is proven x x x that the legacy to be given and delivered to the petitioner does not exceed the free portion of the estate of the testator," which clearly implies that the issue of impairment of legitime (an aspect of intrinsic validity) was in fact not resolved. Finally, the Probate Order did not rule on the propriety of allowing Quemada to remain as special administrator of estate properties not covered by the holographic will, "considering that this (probate) order should have been properly issued solely as a resolution of the issue of whether or not to allow and approve the aforestated will."

(c) That the Probate Order did not resolve the question of ownership of the properties listed in the estate inventory was appropriate, considering that the issue of ownership was the very subject of controversy in the reconveyance suit that was still pending in Branch IX of the Court of First Instance of Cebu.

(d) What, therefore, the Court of Appeals and, in effect, the Supreme Court affirmed en toto when they reviewed the Probate Order were only the matters properly adjudged in the said Order.

(e) In an attempt to justify the issuance of the Order of Execution dated

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August 20, 1980, the Probate Court in its order of November 11, 1980 explained that the basis for its conclusion that the question of ownership had been formally resolved by the Probate Order of 1972 are the findings in the latter Order that (1) during the lifetime of the decedent, he was receiving royalties from Atlas; (2) he had resided in the Philippines since pre-war days and was engaged in the mine prospecting business since 1937 particularly in the City of Toledo; and (3) Pastor, Jr. was only acting as dummy for his father because the latter was a Spaniard.

Based on the premises laid, the conclusion is obviously farfetched.

(f) It was, therefore, error for the assailed implementing Order to conclude that the Probate Order adjudged with finality the question of ownership of the mining properties and royalties, and that, premised on this conclusion, the dispositive portion of the said Probate Order directed the special administrator to pay the legacy in dispute.

2. Issue of Intrinsic Validity of the Holographic Will

(a) When Pastor, Sr. died in 1966, he was survived by his wife, aside from his two legitimate children and one illegitimate son. There is therefore, a need to liquidate the conjugal partnership and set apart the share of Pastor, Sr.'s wife in the conjugal partnership preparatory to the administration and liquidation of the estate of Pastor, Sr. which will include, among others, the determination of the extent of the statutory usufructuary right of his wife until her death. When the disputed Probate Order was issued x x x, there had been no liquidation of the community properties of Pastor, Sr. and his wife.

(b) So, also, as of the same date, there had been no prior definitive determination of the assets of the estate of Pastor, Sr. There was an inventory of his properties presumably prepared by the special administrator, but it does not appear that it was ever the subject of a hearing or that it was judicially approved. The reconveyance or recovery of properties allegedly owned but not in the name of Pastor, Sr. was still being litigated in another court.

(c) There was no appropriate determination, much less payment, of the debts of the decedent and his estate. Indeed, it was only in the Probate Order of December 5, 1972 where the Probate Court ordered that -

x x x a notice be issued and published pursuant to the provisions of Rule 86 of the Rules of Court, requiring all persons having money claims against the decedent to file them in the office of the Branch Clerk of this Court.

(d) Nor had the estate tax been determined and paid, or at least provided for.

(e) The net assets of the estate not having been determined, the legitime of the forced heirs in concrete figures could not be ascertained.

(f) All the foregoing deficiencies considered, it was not possible to determine

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whether the legacy to Quemada - a fixed share in a specific property rather than an aliquot part of the entire net estate of the deceased - would produce an impairment of the legitime of the compulsory heirs.

(g) Finally, there actually was no determination of the intrinsic validity of the will in other respects. It was obviously for this reason that as late as March 5, 1980 - more than 7 years after the Probate Order was issued - the Probate Court scheduled on March 25, 1980 a hearing on the intrinsic validity of the will.

3. Propriety of Certiorari

Private respondent challenges the propriety of certiorari as a means to assail the validity of the disputed Order of Execution. He contends that the error, if any, is one of judgment, not jurisdiction, and properly correctable only by appeal, not certiorari.

Under the circumstances of the case at bar, the challenge must be rejected. Grave abuse of discretion amounting to lack of jurisdiction is much too evident in the actuation of the Probate Court to be overlooked or condoned.

(a) Without a final, authoritative adjudication of the issue as to what properties compose the estate of Pastor, Sr. in the face of conflicting claims made by heirs and a non-heir (Ma. Elena Achaval de Pastor) involving properties not in the name of the decedent, and in the absence of a resolution on the intrinsic validity of the will here in question, there was no basis for the Probate Court to hold in its Probate Order of 1972, which it did not, that private respondent is entitled to the payment of the questioned legacy. Therefore, the Order of Execution of August 20, 1980 and the subsequent implementing orders for the payment of Quemada's legacy, in alleged implementation of the dispositive part of the Probate Order of December 5, 1980, must fall for lack of basis.

(b) The ordered payment of legacy would be violative of the rule requiring prior liquidation of the estate of the deceased, i.e., the determination of the assets of the estate and payment of all debts and expenses, before apportionment and distribution of the residue among the heirs and legatees.

(c) Neither has the estate tax been paid on the estate of Pastor, Sr. Payment therefore of the legacy to Quemada would collide with the provision of the National Internal Revenue Code requiring payment of estate tax before delivery to any beneficiary of his distributive share of the estate.

(d) The assailed Order of Execution was unauthorized, having been issued purportedly under Rule 88, Section 6 of the Rules of Court which reads:

Sec. 6. Court to fix contributive shares where devisees, legatees or heirs have been in possession. - Where devisees, legatees or heirs have entered into possession of portions of the estate before the debts and expenses have been settled and paid and have become liable to contribute for the payment of such debts and expenses, the court having jurisdiction of the estate may, by order

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for that purpose, after hearing, settle the amount of their several liabilities, and order how much and in what manner each person shall contribute, and may issue execution as circumstances require.The above provision clearly authorizes execution to enforce payment of debts

of estate. A legacy is not a debt of the estate; indeed, legatees are among those against whom execution is authorized to be issued.

x x x there is merit in the petitioners' contention that the probate court generally cannot issue a writ of execution. It is not supposed to issue a writ of execution because its orders usually refer to the adjudication of claims against the estate which the executor or administrator may satisfy without the necessity of resorting to a writ of execution. The probate court, as such, does not render any judgment enforceable by execution.

The circumstances that the Rules of Court expressly specifies that the probate court may issue execution (a) to satisfy (debts of the estate out of) the contributive shares of devisees, legatees and heirs in possession of the decedent's assets (Sec. 6, Rule 88), (b) to enforce payment of the expenses of partition (Section 3, Rule 90), and (c) to satisfy the costs when a person is cited for examination in probate proceedings may mean, under the rule of inclusio unius est exclusio alterius, that those are the only instances when it can issue a writ of execution. (vda. de Valera v Ofilada, 59 SCRA 96, 108)

(d) It is within a court's competence to order the execution of a final judgment; but to order the execution of a final order (which is not event meant to be executed) by reading into it terms that are not there and in utter disregard of existing rules and law, is manifest grave abuse of discretion tantamount to lack of jurisdiction. Consequently, the rule that certiorari may not be invoked to defeat the right of the prevailing party to the execution of a valid and final judgment is inapplicable. For when an order of execution issued with grave abuse of discretion or is at variance with the judgment sought to be enforced (PVTA v Honorable Gonzales, 92 SCRA 172), certiorari will lie to abate the order of execution.

(e) Aside from the propriety of resorting to certiorari to assail an order of execution which varies the terms of the judgment sought to be executed or does not find support in the dispositive part of the latter, there are circumstances in the instant case which justify the remedy applied for.

x x x

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

Teehankee (Chairman), Melencio-Herrera, Vasquez and Relova, JJ., concur.

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QUASHA ANCHETA PENA AND NOLASCO LAW OFFICEv LCN CONSTRUCTION CORPORATION

G.R. No. 174873, 26 August 2008563 SCRA 426

Further to the ruling of the Supreme Court in Pastor, J. v Court of Appeals, this case explicitly permits the partial distribution of the estate of a deceased person prior to the payment of the debts, under specific conditions.

Chico-Nazario, J.:

x x x

Section 2, Rule 109 of the Revised Rules of Court expressly recognizes advance distribution of the estate, thus:

“Section 2., Advance distribution in special proceedings. – Notwithstanding a pending controversy or appeal in proceedings to settle the estate of a decedent, the court may, in its discretion and upon such terms as it may deem proper and just, permit that such part of the estate as may not be affected by the controversy or appeal be distributed among the heirs or legatees, upon compliance with the conditions set forth in Rule 90 of these rules.”

The second paragraph pf Section 1 of Rule 90 of the Revised rules of Court allows the distrition of the estate prior to the payment of the obligations mentioned therein, provided that “the distributes, or any of them, gives a bond, in a sum to be fixed by the court, conditioned for the payment of said obligations within such time as the court directs.”

In sum, although it is within the discretion of the RTC whether or not to permit the advance distribution of the estate, its exercise of such discretion should be qualified by the following: (1) only part of the estate that is not affected by any pending controversy or appeal may be subject of advance distribution (Section 2, Rule 90); and (2) the distributes must post a bond, fixed by the court, conditions for the payment of outstanding obligations of the estate (second paragraph of Section 1, Rule 90). There is no showing that the RTC in awarding to the petitioner children and widow their shares in the estate prior to the settlement of all its obligations, complied with these two requirements or, at the very least, took the same into consideration. Its Order of 12 June 2003 is completely silent on these matters. It justified its grant of the award in a single sentence which stated that petitioner children and widow had not yet received their respective shares from the estate after all these years. Taking into account that the claim of LCN against the estate of the late Raymond Triviere allegedly amounted to P6,016,570.65, already in excess of the P4,738,558.63 reported total value of the estate, the RTC should have bee more prudent in approving the advance distribution of the same.

Petitioners earlier invoked Dael v Intermediate Appellate Court, where the Court sustained an Order granting partial distribution of an estate.

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However, Dael is not even on all fours with the case at bar, given that the Court therein found that:

“Where, however, the estate has sufficient assets to ensure equitable distribution of the inheritance in accordance with law and the final judgment in the proceedings and it does not appear there are unpaid obligations, as contemplated in Rule 90, for which provisions should have been made or a bond required, such partial distribution may be allowed.”

No similar determination on sufficiency of assets or absence of any outstanding obligations of the estate of the late Raymond Triviere was made by the RTC in this case. In fact, there is a pending claim by LCN against the estate, and the amount thereof exceeds the value of the entire estate.

Furthermore, in Dael, the Court actually cautioned that partial distribution of the decedent’s estate pending final termination of the testate or intestate proceeding should as much as possible be discouraged by the courts, and, except in extreme cases, such form of advances of inheritance should not be countenanced. The reason for this rule is that courts should guard with utmost zeal and jealousy the estate of the decedent to the end that the creditors thereof be adequately protected and all the rightful heirs be assured of their shares in the inheritance.

X x x

SO ORDERED.

Ynares-Santiago (Chairperson), Austria-Martinez, Nachura, and Reyes, JJ., concur.

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JIMENEZ v INTERMEDIATE APPELLATE COURTG.R. No. L-75773, 17 April 1990

184 SCRA 367

The probate court, as a rule, cannot pass with finality on issues affecting ownership of property. Jimenez holds that this limitation applies also to proceedings in intestacy where an intestate court can only pass upon on issues of title on a provisional basis only. And despite a ruling of the intestate court on the matter, the parties are not barred by res judicata from instituting a separate and subsequent independent action to thresh out the matter.

Fernan, C.J.

x x x

The facts are as follows:

The marriage of Leonardo (Lino) Jimenez and Consolacion Ungson produced four (4) children, namely: Alberto, Leonardo, Sr., Alejandra and Angeles. During the existence of the marriage, Lino Jimenez acquired five (5) parcels of land in Salomague, Bugallon, Pangasinan.

After the death of Consolacion Ungson, Lino married Genoveva Caolboy with whom he begot the seven petitioners herein: Tomas, Visitacion, Digno, Antonio, Amadeo, Modesto and Virginia, all surnamed Jimenez. Lino Jimenez died on August 11, 1951 while Genoveva Caolboy died on November 21, 1978.

Thereafter, x x x Virginia Jimenez filed a petition before the Court of First Instance of Pangasinan x x x praying to be appointed administratrix of the properties of the deceased spouses Lino and Genoveva. Enumerated in her petition were the supposed heirs of the deceased spouses which included herein co-petitioners and the four children of Lino Jimenez by Consolacion Ungson, his previous wife.

In October 1979, herein private respondent Leonardo Jimenez, Jr., son of Leonardo Jimenez, Sr., filed a motion for the exclusion of his father's name and those of Alberto, Alejandra, and Angeles from the petition, inasmuch as they are children of the union of Lino Jimenez and Consolacion Ungson and not of Lino Jimenez and Genoveva Caolboy, and because they have already received their inheritance consisting of five (5) parcels of lands in Salomague, Bugallon, Pangasinan.

x x x petitioner Virginia Jimenez was appointed administrator of the Intestate Estate of Lino Jimenez and Genoveva Caolboy. x x x she filed an inventory of the estate of the spouses Lino Jimenez and Genoveva Caolboy wherein she included the five (5) parcels of land in Salomague, Bugallon, Pangasinan. As a consequence, Leonardo Jimenez, Jr. moved for the exclusion of these properties from the inventory on the ground that these had already been adjudicated to Leonardo, Sr. Alberto, Alejandra and Angeles by their deceased father Lino Jimenez. Private respondent

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Leonardo Jimenez, Jr. presented testimonial and documentary evidence in support of his motion while petitioner Virginia Jimenez, other than cross-examining the witnesses of Leonardo, presented no evidence of her own, oral or documentary.

On September 29, 1981, the probate court ordered the exclusion of the five (5) parcels of land from the inventory on the basis of the evidence of private respondent Leonardo Jimenez, Jr. which consisted among others of: (1) Tax Declaration showing that the subject properties were acquired during the conjugal partnership of Lino Jimenez and Consolacion Ungson; and (2) a Deed of Sale dated May 12, 1964 wherein Genoveva Caolboy stated, that the subject properties had been adjudicated by Lino Jimenez to his children by a previous marriage, namely: Alberto, Leonardo, Alejandra and Angeles. The motion for reconsideration of said order was denied on January 26, 1982.

Petitioner Virginia Jimenez then went to the Court of Appeals on a petition for certiorari and prohibition, docketed thereat as CA-G.R. No. SP-13916, seeking the annulment of the order dated September 29, 1981 as well as the order of January 26, 1982. On November 18, 1982, the Court of Appeals dismissed the petition because (1) Genoveva Caolboy, petitioners' mother, had admitted that the subject parcels of land had been adjudicated to the children of the previous nuptial; (2) the subject properties could not have been acquired during the marriage of Lino Jimenez to Genoveva Caolboy because they were already titled in the name of Lino Jimenez even prior to 1921, long before Lino's marriage to Genoveva in 1940; (3) the claim of Virginia Jimenez was barred by prescription because it was only in 1981 when they questioned the adjudication of the subject properties, more than ten (10) years after Genoveva had admitted such adjudication in a public document in 1964; and (4) petitioner Virginia Jimenez was guilty of laches. This decision became final and executory.

Two (2) years after, petitioners filed an amended complaint dated December 10, 1984 before the Regional Trial Court of Pangasinan, Branch XXXVII, docketed thereat as Civil Case No. 16111, to recover possession/ownership of the subject five (5) parcels of land as part of the estate of Lino Jimenez and Genoveva Caolboy and to order private respondents to render an accounting of the produce therefrom. Private respondents moved for the dismissal of the complaint on the ground that the action was barred by prior judgment in CA-G.R. No. SP-13916 dated November 18, 1982 and by prescription and laches. However, petitioners opposed the motion to dismiss contending that (1) the action was not barred by prior judgment because the probate court had no jurisdiction to determine with finality the question of ownership of the lots which must be ventilated in a separate action, and (2) the action instituted in 1981 was not barred by prescription or laches because private respondents' forcible acquisition of the subject properties occurred only after the death of the petitioners' mother, Genoveva Caolboy in 1978.

On February 13, 1985, the trial court resolved to dismiss the complaint on the ground of res judicata. On May 31, 1985, petitioners' motion for reconsideration of the resolution was denied. As earlier intimated, the petition for certiorari and mandamus

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filed by petitioners before the appellate court was likewise denied due course and dismissed in a decision dated May 29, 1986.

Hence, this recourse.

The issue in this case is whether in a settlement proceeding (testate or intestate) the lower court has jurisdiction to settle questions of ownership and whether res judicata exists as to bar petitioners' present action for the recovery of possession and ownership of the five (5) parcels of land. In the negative, is the present action for reconveyance barred by prescription and/or laches

We reverse. Petitioners' present action for recovery of possession and ownership is appropriately filed because as a general rule, a probate court can only pass upon questions of title provisionally. Since the probate court's findings are not conclusive, being prima facie, a separate proceeding is necessary to establish the ownership of the five (5) parcels of land.

The patent reason is the probate court's limited jurisdiction and the principle that questions of title or ownership, which result in inclusion or exclusion from the inventory of the property, can only be settled in a separate action.

All that the said court could do as regards said properties is determine whether they should or should not be included in the inventory or list of properties to be administered by the administrator. If there is a dispute as to the ownership, then the opposing parties and the administrator have to resort to an ordinary action for a final determination of the conflicting claims of title because the probate court cannot do so.

The provisional character of the inclusion in the inventory of a contested property was again reiterated in the following cases: Pio Barreto Realty Development, Inc. v Court of Appeals, Junquera v Borromeo, Borromeo v Canonoy, Recto v de la Rosa. It has also been held that in a special proceeding for the probate of a will, the question of ownership is an extraneous matter which the probate court cannot resolve with finality. This pronouncement no doubt applies with equal force to an intestate proceeding as in the case at bar.

Res judicata does not exist because of the difference in the causes of actions. Specifically in Sp. No. 5346, the action was for the settlement of the intestate estate of Lino Jimenez and Genoveva Caolboy, while Civil Case No. 16111 was an action for the recovery of possession and ownership of the five (5) parcels of land. Moreover, while admittedly, the Court of First Instance of Pangasinan, Branch V in Sp. No. 5346 had jurisdiction, the same was merely limited jurisdiction. Any pronouncement by said court as to title is not conclusive and could still be attacked in a separate proceeding. Civil Case No. 16111, on the other hand, was lodged before the Regional Trial Court of Pangasinan, Branch XXXVII in the exercise of the court's general jurisdiction. It was, in fact, such "separate or ordinary proceedings" contemplated by the rules for a final determination of the issue of ownership of the disputed properties. To repeat, since the determination of the question of title to the subject properties in Sp. No. 5346 was merely provisional, petitioners are not barred from instituting the appropriate

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action in Civil Case No. 16111.

x x xWHEREFORE, the questioned decision of the respondent appellate court is

hereby REVERSED. Civil Case No. 16111 is reinstated and the Regional Trial Court of Pangasinan, Branch XXXVII is directed to proceed in said case with dispatch.

SO ORDERED.

Feliciano, Bidin and Cortes, JJ., concur. Gutierrez, Jr., J., on leave.

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OZAETA v CUARTERONo. L-5597, 31 May 1956

99 Phil 1041

A will executed through undue and improper pressure of influence may be denied probate by reason of the involuntariness of its execution by the testator. However, an allegation of undue and improper pressure and influence must be substantiated by competent evidence to prove that it was indeed exerted. Mere inferences resulting from circumstances surrounding the execution of the will do not suffice to justify the denial of probate, particularly where the execution of the will was attended by respectable members of the bar. In addition, even if such undue pressure and influence were to be proved, the testator would be deemed to have ratified the contents of the will if, having been given ample opportunity to revoke the same, he did nothing until the time of this death. This is because while undue pressure and influence vitiates consent, such vitiation ceases when the undue pressure and influence ceased. Thus, if the testator did not exercise his option to revoke or alter the provisions of the will which are not consistent with his wishes, a presumption arises that he has silently ratified the same.

Reyes, A., J.:

x x x

Born in China of chinese parents, Palanca came to the Philippines in 1884 and resided therein the rest of his life. He died a Filipino citizen. In 1894, he married Cesarea Victorina Gano y Torres, with whom he begot three children named Marciana, Angel and Sebastian. Cesarea died in 1907, and on the year thereafter, Palanca lived with Rosa Gonzales and came to have eight children with her. While living with Rosa, Palanca also sustained relations with another woman, Maria Cuartero, and by her came to have six children.

Realizing in his old age and failing health that life's end was fast approaching, Palanca made up his mind to legalize his relations with Rosa Gonzales and give their children a good name. And to put himself right with all the children, legitimate and illegitimate, he also decided to make a will. And so it was that on April 12, 1945, in a marriage ceremony performed by a Judge of the Court of First Instance of Manila, Hon, Mamerto Roxas, Palanca took Rosa Gonzales as his wedded wife, and not long thereafter he engaged the services of a prominent lawyer, Atty. Ramon Diokno, for the drafting of the will. x x x

x x x

The will named the later President Manuel Roxas as executor and it would appear that after it was signed, the original was put in a sealed envelop and delivered to him. President Roxas, in turn, entrusted the envelop to his daughter Ruby for safekeeping, and the latter put it in her trunk. There it remained until 1950, when upon the advice of Atty. J. Chuidian, whom she consulted on what to do after learning of

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Palanca's death, she got the envelop out and opened it. Her father, President Roxas, having already died, Ruby sought advice from her uncle, former Judge Mamerto Roxas, and the latter told her to deliver the will to Justice Roman Ozaeta whom the will named executor in default of President Roxas. Acting on this advice, Ruby gave the will to Mrs. Roman Ozaeta three days after Palanca's death.

Designated in the will as substitute executor, Roman Ozaeta, on September 20, 1959, filed a petition in the Court of First Instance of Manila, asking for the probate of the ill, for the issuance to him of letters of administration, and for his appointment as special administrator pending probate. The petition was published together with the date set for its hearing and thereafter, Maria Cuartero and her six children filed their opposition, alleging that the will was not executed in accordance with law, that it was procured through fraud and undue pressure and influence on the part of some of the beneficiaries or some other person for their benefit, and that the decedent's signature thereon were procured thru fraud and trickery, the same having been affixed by him without any intention of making the document his will. Sebastian Palanca, Palanca's youngest son by his deceased first wife, also opposed the petition, and in addition to the grounds alleged by Maria Cuartero and her children, further averred that the provisions of the alleged will were unjust and contrary to law and prayed that the petition be denied and that he himself be appointed administrator. Rosa Gonzales and her children also appeared and joined the petition for probate.

After trial, the court rendered a decision allowing the will to probate and appointing the petitioner Roman Ozaeta executor. From this decision only Sebastian, Marciana and Angel, all children of the first marriage, have appealed, and the case being elevated to this Court because the value of the estate exceeds P50,000.00.

x x x

As to the charge that the will was procured thru undue and improper pressure and influence by those who stood to profit therefrom or by some other person for their benefit, we note that no direct evidence has been presented to support it. Appellants, however, maintain that direct evidence of undue influence is not essential; that a contest on the ground of fraud and undue influence may be waged successfully on circumstantial evidence and that the contestant is entitled to the benefit of all inferences which may be reasonably and legitimately derived from established facts; and appellants then offer the theory that after the petitioner had succeeded in convincing the decedent - whom they picture to be then a "very old man suffering from several ailments besides cataract in both eyes" - to live with him, he (petitioner), with the tolerance and cooperation of Rosa Gonzales and her children, who were then living with the decedent in petitioner's house, instilled fear in his mind and thereafter controlled all his acts in such a way that he could not but do what he was told and had to sign whatever papers he was asked to sign. And that, according to appellants, is how he came to sign the will in question. But this seems to us to be farfetched deduction from the established facts that the decedent was at the time of the execution of the will already old and somewhat sickly and living with Rosa Gonzales and their children in petitioner's house. Though appellants would want to make the

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court believe that the decedent was already blind at the time the will was alleged to have been executed and that he could, therefore, not have read or signed it, we find that the imputation of blindness is not substantiated. While appellant Angel Palanca and oppositors' witness Ariston Hermano, Atty. Dinglasan's brother-in-law, both testified that the decedent had to request them to read for him reports and contracts in 1945 because of his failing eyesight, neither of them could assure the court that the deceased was in fact blind. On the contrary, Angel Palanca even stated that his father, the deceased, was still signing checks in 1945, while Tan Guan Siu, another witness for the appellants, declared that the deceased still had a good sight in July 1946 and could read papers by himself in 1949 when he was already living in his house on Taft Avenue. It is not denied that the deceased had cataract in both eyes even before 1941. But Dr. W. H. Waterous, a disinterested witness who was treating the deceased, testified that the latter's affliction in the eyes impaired only his "distance vision" and he could still read "in close-up" in June 1946 because his "near vision" was still good. Dr. Waterous also stated that the deceased "could still see things around" and "went unaided to the dark room in his clinic" when he went there for a check-up at that time. The decedent, though old and suffering from diabetes would appear to be still in full possession of his mental faculties and was not so helpless as appellants would picture him to be, and there is no showing before, during and after the execution of the will, he was not a master of his will but had to take orders from somebody. Moreover, the will was signed by him in the office of a distinguished lawyer, who died a respected member of this Court, and without the presence of any of the beneficiaries named therein or of the petitioner himself whom appellants apparently suspect of having used pressure or influence in favor of the said beneficiaries. It is obvious that the claim that the will was obtained thru undue influence and improper pressure has no substantial factual basis but is more a matter of conjecture engendered by suspicion which the weight of authority regards as insufficient to sustain a verdict defeating a will on that ground. "It is not enough that there was an opportunity to exercise undue influence or a possibility that it might have been exercised. There must be substantial evidence that it was actually exercised." (21 A.L.R. 821)

Appellants' theory is, furthermore, disproved by decedent's failure to revoke or otherwise alter the questioned will as soon as he stepped out of petitioner's house and moved to his own where he led a free man's life up to five years after the execution of the will in question. This behavior of the decedent constitutes a silent ratification of the contents of the impugned will and refutes the claim of undue influence and improper pressure, even supposing that these circumstances were duly proved.

It is, therefore, our conclusion that the will involved in this case cannot be disallowed on the ground that it was procured thru improper influence or pressure.

x x x

WHEREFORE, the decision appealed from is affirmed, with cost against appellants.

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Paras, C.J., Bengzon, Montemayor, Bautista Angelo, Concepcion, Reyes, J.B.L., and Endencia, JJ., concur. Padilla, J., took no part.

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COSO v FERNANDEZ DEZANo. 16763, 22 December 1921

42 Phil 596

Coso discusses the nature of "undue influence" which vitiates the will of the testator. Further to Ozaeta, Coso holds that mere influence is not sufficient to invalidate a will. Influence must overpower and subjugate the mind of the testator so as to destroy his free agency and make him express the will of another, rather than his own. However, the interesting twist of this old case is the fact that the beneficiary accused of exercising undue influence on the testator is a mistress of the testator. Nevertheless, the Court allowed the will, including the disposition in favor of the mistress. In the case of Nepomuceno v Court of Appeals, supra, the Court invalidated a testamentary disposition in favor of a mistress. A distinction between these two cases is therefore necessary.

Ostrand, J.:

This is an appeal from a decision of the Court of First Instance of Manila setting aside a will on the ground of undue influence alleged to have been exerted over the mind of a testator by one Rosario Lopez. The will gives the tercio de libre disposicion to an illegitimate son had by the testator with said Rosario Lopez, and also provides for the payment to her of nineteen hundred Spanish duros by way of reimbursement for expenses incurred by her in taking care of the testator in Barcelona during the years 1909 to 1916, when he is alleged to have suffered from a severe illness.

The evidence shows that the testator, a married man and resident of the Philippine Islands, became acquainted with Rosario Lopez in Spain in 1898 and that he had illicit relations with her for many years thereafter. After his return to the Philippines she followed him, arriving in Manila in February 1918, and remained in close communication with him until his death in February 1919. There is no doubt that she exercised some influence over him and the only question for our determination is whether this influence was of such a character as to vitiate the will.

The English and American rule in regard to undue influence is thus stated in 40 Cyc. 1144-1149.

Mere general or reasonable influence over a testator is not sufficient to invalidate a will; to have that effect that influence must be "undue." The rule as to what constitute "undue influence" has been variously stated, but the substance of the different statements is that, to be sufficient to avoid a will, the influence exerted must be of a kind that so overpowers and subjugates the mind of the testator as to destroy his free agency and make him express the will of another, rather than his own.

x x x such influence must be actually exerted on the mind of the testator in regard to the execution of the will in question, either at the time of the execution of the will, or so near thereto as to be still operative, with the

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object of procuring a will in favor of particular parties, and it must result in the making of testamentary dispositions which the testator would not otherwise have made x x x.

x x x and while the same amount of influence may become "undue" when exercised by one occupying an improper and adulterous relation to testator, the mere fact that some influence is exercised by a person sustaining that relation does not invalidate a will, unless it is further shown that the influence destroys the testator's free agency.

The burden is upon the parties challenging the will to show that undue influence, in the sense above expressed, existed at the time of its execution and we do not think that this burden has been carried in the present case. While it is shown that the testator entertained strong affections for Rosario Lopez, it does not appear that her influence so overpowered and subjugated his mind as to "destroy his free agency and make him express the will of another rather than his own." He was an intelligent man, a lawyer by profession, appears to have known his own mind, and may well have been actuated only by a legitimate sense of duty in making provisions for the welfare of his illegitimate son and by a proper feeling of gratitude in repaying Rosario Lopez for the sacrifices she had made for him. Mere affection, even if illegitimate, is not undue influence and does not invalidate a will. No imposition of fraud has been shown in the present case.

Influence gained by kindness and affection will not be regarded as "undue" if no imposition or fraud be practiced, even though it induces the testator to make an unequal and unjust disposition of his property in favor of those who have contributed to his comfort and ministered to his wants, if such disposition is voluntarily made. (Mackall v Mackall, 135 U.S. 167)

It may be further observed that under the Civil Law the right of a person with legal heirs to dispose of his property by will is limited to only a portion of his estate, and that under the law in force in these Islands before the enactment of the Code of Civil Procedure, the only outside influences affecting the validity of a will were duress, deceit and fraud. The present doctrine of undue influence originated in a legal system where the right of the testator to dispose of his property by will was nearly unlimited. Manifestly, greater safeguards in regard to execution of wills may be warranted when the right to so dispose of property is unlimited than when it is restricted to the extent it is in this jurisdiction. There is, therefore, certainly no reason for giving the doctrine of undue influence a wider scope here than it enjoys in the United States.

For the reasons stated, the decision of the lower court disallowing the will of Federico Gimenez Zoboli is hereby reversed and it is ordered that the will be admitted to probate. No costs will be allowed. So ordered.

Johnson, Street, Malcolm, Avancena, Villamor, Johnson and Romualdez, JJ., concur.

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PASCUAL v DE LA CRUZNo. L-24819, 30 May 1969

28 SCRA 421

Undue and improper pressure and influence as well as fraud are grounds to disallow a will. These twin grounds were invoked in this case. While the Court considered only the issue of improper influence and pressure, and summarized the rulings thereon, it is equally important to consider the effect of alleging undue influence and pressure simultaneously with fraud.

Reyes, J.B.L., J., Acting C.J.:

On 2 January 1960, Catalina de la Cruz, single and without any surviving descendant or ascendant, died at the age of 89 in her residence at San Roque, Navotas, Rizal. On 14 January 1960, a petition for the probate of her alleged will was filed in the Court of First Instance of Rizal by Andres Pascual, who was named in the said will as executor and sole heir of the decedent.

Opposing the petition, Pedro de la Cruz and 26 other nephews and nieces of the late Catalina de la Cruz contested the validity of the will on the grounds that the formalities required by law were not complied with; that the testatrix was mentally incapable of disposing of her properties by will at the time of its execution; that the will was procured by undue and improper pressure and influence on the part of the petitioner; and that the signature of the testatrix was obtained through fraud.

After hearing, during which the parties presented their respective evidences (sic), the probate court rendered judgment upholding the due execution of the will, and, as therein provided, appointed petitioner Andres Pascual executor and administrator of the estate of the late Catalina de la Cruz without bond. The oppositors appealed directly to this Court, the properties involved being valued at more than P300,000.00, raising only the issue of the due execution of the will.

x x x

Contestants further assail the admission to probate on the ground that the execution of the will was tainted by fraud and undue influence exerted by proponent on the testatrix, and affirm that it was error for the lower court to have rejected their claim. Said the court in this regard:

It is a settled rule in this jurisdiction that the mere fact that a will was made in favor of a stranger is not in itself proof that the same was obtained through fraud and undue pressure and influence, for we have numerous instances where strangers are preferred to blood relatives in the institution of heirs. But in the case at bar, Andres Pascual, although not related by blood to the deceased Catalina de la Cruz, was definitely not a stranger to the latter for she considered him as her own son. As a matter of fact it was not only Catalina de la Cruz who loved and cared for Andres Pascual but also her sisters held him with affection so much so that Catalina's sister, Florentina

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Cruz, made him also her sole heir to her property in her will without any objection from Catalina and Valentina Cruz.

Before considering the correctness of these findings, it is worthwhile to recall the basic principles of undue pressure and influence as laid down by the jurisprudence on this Court: that to be sufficient to avoid a will, the influence exerted must be of a kind that so overpowers and subjugates the mind of the testator as to destroy his free agency and make him express the will of another rather than his own (Coso v Fernandez Deza, 42 Phil 596); Icasiano v Icasiano, L-18979, 30 June 1964; Teotico v del Val, L-18753, 26 March 1965); that the contention that a will was obtained by undue influence and improper pressure 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 (Ozaeta v Cuartero, L-5597, 31 May 1956); that the exercise of improper pressure and undue influence must be supported by substantial evidence that it was actually exercised (Ozaeta v Cuartero, ante; Teotico v del Val, L-18753, 26 March 1965); that the burden is on the person challenging the will to show that such influence was exerted at the time of its execution (Teotico v del Val, ante); that mere general or reasonable influence is not sufficient to invalidate a will (Coso v Fernandez Deza, ante); nor is moderate and reasonable solicitation and entreaty addressed to the testator (Barretto v Reyes, L-5830-31, 31 January 1956); or omission of relatives, not forced heirs, evidence of undue influence (Bugnao v Ubag, 14 Phil 163; Pecson v Coronel, 45 Phil 416).

Tested against these rulings, the circumstances marshaled by the contestants certainly fail to establish actual undue influence and improper pressure exercised on the testatrix by the proponent. Their main reliance is on the assertion of the latter, in the course of his testimony, that the deceased "did not like to sign anything unless I knew it," which does not amount to proof that she would sign anything that proponent desired. On the contrary, the evidence of contestants-appellants, that proponent purchased a building in Manila for the testatrix, placed the title in his name, but caused the name "Catalina de la Cruz" to be painted therein in bold letters to mislead the deceased, even if true, demonstrates that proponent's influence was not such as to overpower and destroy the free will of the testatrix. Because if the mind of the latter were really subjugated by him to the extent pictured by the contestants, then proponent had no need to recourse to the deception averred.

Nor is the fact that it was proponent, and not the testatrix who asked Dr. Sanchez to be one of the instrumental witnesses evidence of such undue influence, for the reason that the rheumatism of the testatrix made it difficult for her to look for all the witnesses. That she did not resort to relative or friend is, likewise, explainable: it would have meant the disclosure of the terms of her will to those interested in her succession but who were not favored by her, thereby exposing her to unpleasant importunity and recrimination that an aged person would naturally seek to avoid. The natural desire to keep the making of a will secret can, likewise, account for the failure to probate the testament during her lifetime.

We conclude that the trial court committed no error in finding that appellants' evidence established at most grounds for suspicion but fell short of establishing actual

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exercise of improper pressure or influence. Considering that the testatrix considered proponent as her own son, to the extent that she expressed no objection to his being made sole heir of her sister, Florentina Cruz, in derogation of her own rights, we find nothing abnormal in her instituting proponent also as her own beneficiary.

Appellants invoke a presumption of undue influence held to exist by American authorities where the beneficiary participates in the drafting or execution of the will favoring him; but since the will was prepared by Atty. Pascual, although a nephew of the proponent, we do not think the presumption applies; for in the normal course of events, said attorney would follow the instructions of the testatrix; and a member of the bar in good standing may not be convicted of unprofessional conduct, or of having conspired to falsify a statement, except upon clear proof.

x x x

WHEREFORE, the decree of probate appealed from is affirmed, with costs against contestants-appellants.

Dizon, Makalintal, Zaldivar, Sanchez, Fernando, Capistrano and Barredo, JJ., concur. Teehankee, J., took no part. Concepcion, C.J., and Castro, J., both on official leave, did not take part.

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ORTEGA v VALMONTEG.R. No. 157451, 16 December 2005

478 SCRA 247

Ortega discusses two issues: (i) how to prove the fact of fraud in the making of the will; and (ii) what constitutes a sound and disposing mind.

Panganiban, J.:

x x x

The Facts

The facts were summarized in the assailed Decision of the CA as follows:

“x x x: Like so many others before him, Placido toiled and lived for a long time in the United States until he finally reached retirement. In 1980, Placido finally came home to stay in the Philippines and lived in the house and lot located at #9200 Catmon St., San Antonio Village, Makati, which he owned in common with his sister Ciriaca Valmonte and titled in their names in TCT 123468. Two years after his arrival from the United States and at the age of 80 he wed Josefina who was then 28 years old, in a ceremony solemnized by Judge Perfecto Laguio, Jr. on February 5, 1982. But in a little more than two years of wedded bliss, Placido died on October 8, 1984 of a cause written down as COR PULMONALE.

“Placido executed a notarial last will and testament written in English and consisting of two (2) pages, and dated June 15, 19893 but acknowledged only on August 9, 1983. The first page contains the entire testamentary dispositions and a part of the attestation clause, and was signed at the end or bottom of that page by the testator and on the left hand margin by the three instrumental witnesses. The second page contains the continuation of the attestation clause and the acknowledgment, and was signed by the witnesses at the end of the attestation clause and again on the left hand margin. It provides in the body that:

“LAST WILL AND TESTAMENT OF PLACIDO VALMONTEIN THE NAME OF THE LORD AMEN:

I, Placido Valmonte, of legal age, married to Josefina Cabansag Valmonte, and a resident of 9200 Catmon Street, Makati, Metro Manila, 83 years of age and being of sound and disposing mind and memory, do hereby declare this to be my last will and testament:

1. It is my will that I be buried in the Catholic Cemetery, under the auspices of the Catholic Church in accordance with the rites of said Church and that a suitable monument to be erected and provided by my executrix (wife) to perpetuate my memory in the minds of my family and friends;

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2. I give, devise and bequeath unto my loving wife, JOSEFINA C. VALMONTE, one half (1/2) portion of the follow-described properties, which belongs to me as [co-owner]:

a. Lot 4-A, Block 13 described on plan Psd-28575, LRC GLRO), situated in Makati, Metro Manila, described and covered by TCT No. 123468 of the Register of Deeds of Pasig, Metro Manila registered jointly as co-owners with my deceased sister (Ciriaca Valmonte), having share and share alike;

b. 2-storey building standing on the above described property, made of strong and mixed materials used as my residence and my wife and located at No. 9200 Catmon Street, Makati, Metro Manila also covered by Tax Declaration No. A-025-00482, Makati, Metro Manila, jointly in the name of my deceased sister, Ciriaca Valmonte and myself as co-owners, share and share alike or equal co-owners thereof;

3. All the rest, residue and remainder of my real and personal properties, including my savings account bank book in USA which is in the possession of my nephew, and all others whatsoever and wherever found, I give, devise and bequeath to my said wife, Josefina C. Valmonte;

4. I hereby appoint my wife, Josefina C. Valmonte as sole executrix of my last will and testament, and it is my will that said executrix be exempt from filing a bond.

IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of June 1983 in Quezon City, Philippines.”

“The allowance to probate of this will was opposed by Leticia on the grounds that:

1. Petitioner failed to allege all assets of the testator, especially those found in the USA;

2. Petitioner failed to state the names, ages and residence of the heirs of the testator, or to give them proper notice pursuant to law;

3. Will was not executed and attested as required by law and legal solemnities and formalities were not complied with;

4. Testator was mentally incapable to make a will at the time of the alleged execution he being in advance state of senility;

5. Will was executed under duress, or the influence of fear or threat;

6. Will was procured by undue and improper influence and pressure on the part of the petitioner and/or her agents and/or assistants; and/or

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7. Signature of testator was procured by fraud, or trick, and he did not intend that the instrument should be his will at the time of affixing his signature thereto.

and she also opposed the appointment as Executrix of Josefina, alleging her want of understanding and integrity.

“At the hearing, the petitioner Josefina testified and called as witnesses the notary public, Atty. Floro Sarmiento who prepared and notarized the will, and the instrumental witnesses spouses Eugenio Gomez, Jr. and Feliza Gomez and Josie Collado. For the opposition, the oppositor Leticia and her daughter Mary Jane Ortega testified.

“According to Josefina after her marriage with the testator they lived in her parents house at Salingcob, Bacnotan, La Union but they came to Manila every month to get his $366.00 monthly pension and stayed at the said Makati residence. There were times though when to shave off on expenses, the testator would travel alone. And it was in one of his travels by his lonesome self when the notarial will was made. The will was witnessed by the spouses Eugenio and Feliza Gomez, who were their wedding sponsors, and by Josie Collado. Josefina said she had no knowledge of the existence of the last will and testament of her husband, but just serendipitously found it in his attaché case after his death. It was only then that she learned that the testator bequeathed to her his properties and she was named the executrix in the said will. To her estimate, the value of property both real and personal left by the testator is worth more or less P100,000.00. Josefina declared too that the testator never suffered mental infirmity because despite his old age he went alone to the market which is two to three kilometers from their home, cooked and cleaned the kitchen and sometimes if she could not accompany him, even traveled to Manila alone to claim his monthly pension. Josefina also asserts that her husband was in good health and that he was hospitalized only because of a cold but which eventually resulted in his death.

“Notary Public Floro Sarmiento, the notary public who notarized the testator’s will, testified that it was in the first week of June 1983 when the testator together with the three witnesses of the will went to his house cum law office and requested him to prepare his last will and testament. After the testator instructed him on the terms and dispositions he wanted on the will, the notary public told then to come back on June 15, 1983 to give him time to prepare it. After he had prepared the will the notary public kept it safely hidden and locked in his drawer. The testator and his witnesses returned on the appointed date but the notary public was out of town so they were instructed by his wife to come back on August 9, 1983, and which they did. Before the testator and his witnesses signed the prepared will, the notary public explained to them each and every term thereof in Ilocano, a dialect which the testator spoke and understood, He likewise explained that though it appears that the will was signed by the testator and the witnesses on June 15, 1983, the day when it should have been executed had he not gone out of town, the formal execution was actually on August 9, 1983. He reasoned that he no longer changed the typewritten date of June 15, 1983 because he did not like the document to appear dirty. The notary public also testified that to his observation the testator

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was physically and mentally capable at the time he affixed his signature on the will.

“The attesting witnesses to the will corroborated the testimony of the notary public, and testified that the testator went alone to the house of spouses Eugenio and Feliza Gomez at GSIS Village, Quezon City and requested them to accompany him to the house of Atty. Floro Sarmiento purposely for his intended will; that after giving his instructions to Atty. Floro Sarmiento, they were told to return on June 15, 1983; that they returned on June 15, 1983 for the execution of the will but were asked to come back instead on August 9, 1983 because of the absence of the notary public,; that the testator executed the will in question in their presence while he was of sound and disposing mind and that he was strong and in good health; that the contents of the will was explained by the notary public in the Ilocano and Tagalog dialect and that all of them as witnesses attested and signed the will in the presence of the testator and of each other. And that during the execution, the testator’s wife, Josefina, was not with them.

“The oppositor Leticia declared that Josefina should not inherit alone because aside from her there are other children from the siblings of Placido who are just as entitled to inherit from him. She attacked the mental capacity of the testator, declaring that at the time of the execution of the notarial will the testator was already 83 years old and was no longer of sound mind. She knew whereof she spoke because in 1983 Placido lived in the Makati residence and asked Leticia’s family to live with him and they took care of him. During that time, the testator’s physical and mental condition showed deterioration, aberrations and senility. This was corroborated by her daughter Mary Jane Ortega for whom Placido took a fancy and wanted to marry.

“Sifting through the evidence, the court a quo held that [t]he evidence adduced, reduces the opposition to two grounds, namely:

1. Non-compliance with the legal solemnities and formalities in the execution and attestation of the will; and

2. Mental incapacity of the testator at the time of the execution of the will as he was then in an advanced state of senility.

“It then found these grounds extant and proven, and accordingly disallowed probate.”

Ruling of the Court of Appeals

Reversing the trial court, the appellate court admitted the will of Placido Valmonte to probate. The CA upheld the credibility of the notary public and the subscribing witnesses who had acknowledged the due execution of the will. Moreover, it held that the testator had testamentary capacity at the time of the execution of the will. It added that his “sexual exhibitionism and unhygienic, crude and impolite ways” did not make him a person of unsound mind.

Hence this Petition.

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x x x

In short, petitioner assails the CA’s allowance of the probate of the will of Placido Valmonte.

This Court’s Ruling

The Petitioner has no merit.

Main Issue:Probate of a Will

x x x

The fact that public policy favors the probate of a will does not necessarily mean that every will presented for probate should be allowed. The law lays down the procedures and requisites that must be satisfied for the probate of a will. Verily, Article 839 of the Civil Code states the instances when a will may be disallowed, as follows:

x x x

In the present case, petitioner assails the validity of Placido Valmonte’s will by imputing fraud in its execution and challenging the testator’s mind at the time.

Existence of Fraud in the Execution of a Will

Petitioner does not dispute the due observance of the formalities in the execution of the will, but maintains that the circumstances surrounding it are indicative of the existence of fraud. Particularly, she alleges that respondent, who is the testator’s wife and sole beneficiary, conspired with the notary public and the three attesting witnesses in deceiving Placido to sign it. Deception is allegedly reflected in the varying dates of the execution and the attestation of the will.

Petitioner contends that it was “highly dubious for a woman at the prime of her young life (to) almost immediately plunge into marriage with a man who (was) thrice her age x x x and who happened to be (a) Fil-American pensionado, thus casting doubt on the intention of respondent in seeking the probate of the will. Moreover, it supposedly “defies human reason, logic and common experience” for an old man with a severe psychological condition to have willingly signed a last will and testament.

We are not convinced. Fraud “is a trick, secret device, false statement, or pretence, by which the subject of it is cheated. It may be of such character that the testator is misled or deceived as to the nature or contents of the document which he executed, or it may relate to some extrinsic fact, in consequence of the deception regarding which the testator is led to make a certain will which, but for the fraud, he would not have made.

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We stress that the party challenging the will bears the burden of proving the existence of fraud at the time of its execution. The burden to show otherwise shifts to the proponent of the will only upon a showing of credible evidence of fraud. Unfortunately in this case, other than the self-serving allegations of petitioners, no evidence of fraud was ever presented.

It is a settled doctrine that the omission of some relatives does not affect the due execution of a will. That the testator was tricked into signing it was not sufficiently established by the fact that he had instituted his wife, who was more than fifty years his junior, as the sole beneficiary, and disregarded petitioner and her family, who were the ones who had taken “the cudgels of taking care of (the testator) in his twilight years.”

Moreover, as correctly ruled by the appellate court, the conflict between the dates appearing on the will does not invalidate the document, “because the law does not even require that a (notarial) will x x x be executed and acknowledged on the same occasion.” More importantly, the will must be subscribed by the testator, as well as by three or more credible witnesses who must also attest to it in the presence of the testator and of one another. Furthermore, the testator and the witnesses must acknowledge the will before a notary public. In any event, we agree with the CA that “the variance in the dates of the will as to its supposed execution and attestation was satisfactorily and persuasively explained by the notary public and the instrumental witnesses.”

x x x

Notably, petitioner failed to substantiate her claim of a “grand conspiracy” in the commission of fraud, There was no showing that the witnesses of the proponent stood to receive any benefit from the allowance of the will. The testimonies of the three subscribing witnesses and the notary are credible evidence of its due execution. Their testimony favoring it and the finding that it was executed in accordance with the formalities required by law should be affirmed, absent any showing of ill motives.

Capacity to Make a Will

In determining the capacity of the testator to make a will, the Civil Code gives the following guidelines.

“Article 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution.

“Article 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired or shattered by disease, injury or other cause.

“It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act.

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“Article 800. The law presumes that every person is of sound mind, in the absence of proof to the contrary.

“The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who opposes the probate of the will; but if the testator, one month or less, before making his will, was publicly known to be insane, the person who maintains the validity of the will must prove that the testator made it during a lucid interval.”

According to Article 799, the three things that the testator must have the ability to know to be considered of sound mind are as follows: (1) the nature of the estate to be disposed of; (2) the proper objects of the testator’s bounty; and (3) the character of the testamentary act. Applying this test to the present case, we find that the appellate court was correct in holding that Placido had testamentary capacity at the time of the execution of his will.

It must be noted that despite his advanced age, he was still able to identify accurately the kinds of property he owned, the extent of his shares in them, and even their locations. As regards the proper objects of his bounty, it was sufficient that he identified his wife as sole beneficiary. As we have stated earlier, the omission of some relatives from the will did not affect its formal validity. There being no showing of fraud in its execution, intent in its disposition becomes irrelevant.

Worth reiterating in determining soundness of mind is Alsua-Betts v CA, which held thus:

“Between the highest degree of soundness of mind and memory which unquestionably carries with it full testamentary capacity, and that degree of mental aberration generally known as insanity or idiocy, there are numberless degrees of mental capacity or incapacity and while on one hand it has been held that mere weakness of mind, or partial imbecility from disease of body, or from age, will not render a person incapable of making a will; a weak or feebleminded person may make a valid will, provided he has understanding and memory sufficient to enable him to know what he is about to do and how or to whom he is disposing of this property. To constitute a sound and disposing mind, it is not necessary that the mind be unbroken or unimpaired or unsheltered by disease or otherwise. It has been held that testamentary incapacity does not necessarily require that a person shall actually be insane or of unsound mind.”

WHEREFORE, the Petition is DENIED, and the assailed Decision and Resolution of the Court of Appeals are AFFIRMED. Costs against petitioner.

SO ORDERED.

Sandoval-Gutierrez, Corona, Carpio-Morales, and Garcia, JJ., concur.

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NEPOMUCENO v COURT OF APPEALSNo. L-62952, 9 October 1985

139 SCRA 206

While the general rule is that the probate court's area of inquiry is limited to the extrinsic validity of the will, practical considerations may compel the probate court to pass upon matters of intrinsic validity. In particular, where a testamentary provision is void on its face, a probate court, in accordance with the ruling in Nuguid v Nuguid, pass upon such provision for the purpose of declaring its nullity.

Gutierrez, Jr., J.:

x x x

Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last will and testament x x x.

In the said will, the testator named and appointed herein petitioner Sofia J. Nepomuceno as his sole heir and only executor of his estate. It is clearly stated in the will that the testator was legally married to a certain Rufina Gomez by whom he had two legitimate children, Oscar and Carmelita, but since 1952, he had been estranged from his lawfully wedded wife and had been living with petitioner as husband and wife. In fact, on December 5, 1952, the testator Martin Jugo and the petitioner, herein Sofia J. Nepomuceno were married in Victoria, Tarlac before the Justice of the Peace. The testator devised to his forced heirs, namely his legal wife Rufina Gomez, and his children Oscar and Carmelita, his entire estate and the free portion thereof to herein petitioner. x x x.

On August 21, 1974, the petitioner filed a petition for the probate of the last Will and Testament of the deceased Martin Jugo in the Court of First Instance of Rizal, Branch XXXIV, Caloocan City and asked for the issuance to her of letters testamentary.

On May 13, 1975, the legal wife of the testator, Rufina Gomez, and her children filed an opposition alleging inter alia that the execution of the will was procured by undue and improper influence on the part of the petitioner; that at the time of the execution of the will, the testator was already very sick and that petitioner having admitted her living in concubinage with the testator, she is wanting in integrity and thus letters testamentary should not be issued to her.

On January 6, 1976, the lower court denied the probate of the will on the ground that as the testator admitted in his will to cohabiting with the petitioner from December 1952 until his death on July 16, 1974, the will's admission to probate will be an idle exercise because on the fact of the will, the invalidity of its intrinsic provisions is evident.

The petitioner appealed to the respondent-appellate court.

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On June 2, 1982, the respondent court set aside the decision of the Court of First Instance of Rizal denying probate of the will. The respondent court declared the will to be valid except that the devise in favor of the petitioner is null and void pursuant to Article 739 in relation to Article 1028 of the Civil Code of the Philippines. x x x.

The main issue raised by petitioner is whether or not the respondent court acted in excess of its jurisdiction when after declaring the last will and testament of the deceased Martin Jugo validly drawn, it went on to pass upon the intrinsic validity of the testamentary provision in favor of herein petitioner.

The petitioner submits that the validity of the testamentary provision in her favor cannot be passed upon and decided in the probate proceedings but in some other proceedings because the only purpose of the probate of a will is to establish conclusively as against everyone that a will was executed with the formalities required by law and that the testator has the mental capacity to execute the same. The petitioner further contends that even if the provisions of paragraph 1 of Article 739 of the Civil Code of the Philippines were applicable, the declaration of its nullity could only be made by the proper court in a separate action brought by the legal wife for the specific purpose of obtaining a declaration of the nullity of the testamentary provision in the will in favor of the person with whom the testator was allegedly guilty of adultery or concubinage.

The respondents on the other hand contend that the fact that the last will and testament itself expressly admits indubitably on its face the meretricious relationship between the testator and the petitioner and the fact that petitioner herself initiated the presentation of evidence on her alleged ignorance of the true civil status of the testator, which led private respondents to present contrary evidence, merits the application of the doctrine enunciated in Nuguid v Felix Nuguid, et al. (17 SCRA 449) and Felix Balanay, Jr. v Hon. Antonio Martinez, et al. (G.R. No. L-39247, June 27, 1975). Respondents also submit that the admission of the testator of the illicit relationship between him and the petitioner put in issue the legality of the devise.

We agree with the respondents.

The respondent court acted within its jurisdiction when after declaring the will to be validly drawn, it went on to pass upon the intrinsic validity of the will and declared the devise in favor of the petitioner null and void.

The general rule is that in probate proceedings, the court's area of inquiry is limited to an examination and resolution of the extrinsic validity of the will. The rule is expressed thus:

x x x

The rule, however, is not inflexible and absolute. Given exceptional

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circumstances, the probate court is not powerless to do what the situation constrains it to do and pass upon certain provisions of the will.

In Nuguid v Nuguid (17 SCRA 449) cited by the trial court, the testator instituted the petitioner as universal heir and completely preterited her surviving forced heirs. A will of this nature, no matter how valid it may appear extrinsically, would be null and void. Separate or latter (sic) proceedings to determine the intrinsic validity of the testamentary provisions would be superfluous.

x x x

The only issue therefore is the jurisdiction of the respondent court to declare the testamentary provision in favor of the petitioner as null and void.

We sustain the respondent court's jurisdiction. x x x.

We see no useful purpose that would be served if we remand the nullified provision to the proper court in a separate action for that purpose simply because, in the probate of the will, the court does not ordinarily look into the intrinsic validity of its provisions.

Article 739 of the Civil Code provides:

The following donations shall be void:

(1) Those made between persons who are guilty of adultery of concubinage at the time of the donation;

(2) Those made between persons found guilty of the same criminal offense, in consideration thereof;

(3) Those made to a public officer or his wife, descendants and ascendants, by reason of his office.

In the case referred to in no. 1, the action for declaration of nullity may be brought by the spouses of the donor or donee; and the guilt of the donor and donee may be proved by preponderance of evidence in the same action.

Article 1028 of the Civil Code provides:

The prohibitions mentioned in Article 739, concerning donations inter vivos shall apply to testamentary provisions.

In Article III of the disputed will, executed on August 15, 1968, or almost six years before the testator's death on July 16, 1974, Martin Jugo stated that respondent Rufina Gomez was his legal wife from whom he had been estranged "for so many years." He also declared that respondent Carmelita Jugo and Oscar Jugo were his legitimate children. In Article IV, he stated that he had been living as man and wife with the petitioner since 1952. Testator Jugo declared that the petitioner was entitled to his love and affection. He stated that Nepomuceno represented Jugo as her own husband but "in truth and in fact, as well as in the eyes of the law, I could not bind her

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to me in the holy bonds of matrimony because of my aforementioned previous marriage."

There is no question from the records about the fact of a prior existing marriage when Martin Jugo executed his will. There is also no dispute that the petitioner and Mr. Jugo lived together in an ostensible marital relationship for 22 years until his death.

It is also a fact that on December 2, 1952, Martin Jugo and Sofia J. Nepomuceno contracted a marriage before the Justice of the Peace of Victoria, Tarlac. The man was then 51 years old while the woman was 48. Nepomuceno now contends that she acted in good faith for 22 years in the belief that she was legally married to the testator.

The records do not sustain a finding of ignorance or good faith. x x x.

Moreover, the prohibition in Article 739 of the Civil Code is against the making of a donation between persons who are living in adultery or concubinage. It is the donation which becomes void. The giver cannot give even assuming that the recipient may receive. The very wordings of the will invalidate the legacy because the testator admitted he was disposing the properties to a person with whom he had been living in concubinage.

WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the Court of Appeals, now Intermediate Appellate Court, is affirmed. No costs.

SO ORDERED.

Teehankee (Chairman), Melencio-Herrera, Plana, Relova, de la Fuente and Patajo, JJ., concur.

293

ROBERTS v LEONIDASNo. L-55509, 27 April 1984

129 SCRA 33

Probate of a will is mandatory in order that the said will may pass property. In this case, the Supreme Court ruled that "it is anomalous that the estate of a person who died testate should be settled in an intestate proceeding." Accordingly, the Court ordered the consolidation of the testate and intestate proceedings, and for the judge hearing the testate case to continue hearing the consolidated cases.

In de Borja v vda de Borja, infra, the Supreme Court allowed and in fact enforced the compromise agreement between a stepson and his stepmother, despite the fact that the tenor of the compromise agreement is not consistent with the tenor of the will of the testator. It is important to distinguish the variance between the ruling in de Borja and the ruling in Roberts. Based on the dictum of the Supreme Court in these two cases, is it lawful for the heirs to divide the estate in accordance with a freely negotiated compromise agreement and in the process disregard the terms of the will? Or will such a compromise agreement result in an "anomalous" situation deplored by the Supreme Court in Roberts?

Aquino, J.:

x x x

Antecedents - Edward M. Grimm, an American resident of Manila x x x. He was survived by his second wife, Maxine Tate Grimm, and their two children, named Edward Miller Grimm II (Pete) and Linda Grimm, and by Juanita Grimm Morris and Ethel Grimm Roberts (McFadden), his two children by a first marriage x x x.

He executed on January 23, 1959 two wills in San Francisco, California. One will disposed of his Philippine estate which he described as conjugal property of himself and his second wife. The second will deposed of his estate outside the Philippines.

In both wills, the second wife and two children were favored. The two children of the first marriage were given their legitimes in the will disposing of the estate situated in this country. In the will dealing with his property outside this country, the testator said:

I purposely have made no provision in this will for my daughter, Juanita Grimm Morris, or my daughter Elsa Grimm McFadden (Ethel Grimm Roberts), because I have provided for each of them in a separate will disposing of my Philippine property.

The two wills and a codicil were presented for probate by Maxine Tate Grimm and E. LaVar Tate x x x in x x x Utah. Juanita Grimm Morris of Cupertino, California, and Mrs. Roberts of 15 C. Benitez Street, Horseshoe Village, Quezon City were notified of the probate proceedings.

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Maxine admitted that she received notice of the intestate petition filed in Manila by Ethel in January 1978. In its order dated April 10, 1978, the Third Judicial District Court admitted to probate the two wills and the codicil. It was issued upon consideration of the stipulation dated April 14, 1978 "by and between the attorneys for Maxine Tate Grimm, Linda Grimm, Edward Miller Grimm II, E. LaVar Tate, Juanita Kegley Grimm (first wife), Juanita Grimm Morris and Ethel Grimm Roberts.

Two weeks later x x x Maxine and her two children, Linda and Pete, as the first parties, and Ethel, Juanita Grimm Morris and their mother Juanita Kegley Grimm, as the second parties, without knowledge of the intestate proceeding in Manila, entered into a compromise agreement in Utah regarding the estate. x x x.

Intestate Proceeding No. 113024 - At this juncture, it should be stated that forty-three days after Grimm's death, or January 9, 1978, his daughters of the first marriage, Ethel, 49, through lawyers Deogracias T. Reyes and Gerardo B. Macaraeg, filed with Branch 20 of the Manila Court of First Instance intestate proceedings no. 113024 for the settlement of his estate. She was named special administratrix.

On March 11, the second wife, Maxine, through the Angara Law Office, filed an opposition and motion to dismiss the intestate proceeding on the ground of the pendency in Utah of a proceeding for the probate of Grimm's will. She also moved that she be appointed special administratrix. She submitted to the court a copy of Grimm's will disposing of his Philippine estate. x x x.

The intestate court in its orders of May 23 and June 2 noted that Maxine, through a new lawyer, William C. Limqueco (partner of Gerardo B. Macaraeg), withdrew the opposition and motion to dismiss and, at the behest of Maxine, Ethel and Pete, appointed them joint administrators. Apparently, this was done pursuant to the aforementioned Utah compromise agreement. The court ignored the will already found in the record.

x x x

Acting on the declaration of heirs and project of partition signed and filed by lawyers Limqueco and Macaraeg (not signed by Maxine and her two children), Judge Conrado M. Molina in his order of July 27, 1979 adjudicated to Maxine one-half (4/8) of the decedent's Philippine estate and one eighth (1/8) each to his four children or 12 1/2%. No mention at all was made of the will in that order.

Six days later, or on August 2, Maxine and her two children replaced Limqueco with Octavio del Callar as their lawyer, who on August 9, moved to defer approval of the project of partition. The court considered the motion moot and academic considering that it had already approved the declaration of heirs and project of partition.

After November 1979, or a period of more than five months, there was no

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movement or activity in the intestate case. On April 18, 1980, Juanita Grimm Morris, through Ethel's lawyers, filed a motion for accounting "so that the Estate properties can be partitioned among the heirs and the present intestate estate be closed." Del Callar, Maxine's lawyer, was notified of that motion.

x x x

Petition to annul partition and testate proceeding no. 134559 - On September 8, 1980, Rogelio A. Vinluan of the Angara Law Firm, in behalf of Maxine, Pete and Linda, filed in Branch 38 of the lower court a petition praying for the probate of Grimm's two wills (already probated in Utah), that the 1979 partition approved by the intestate court be set aside and the letters of administration revoked, that Maxine be appointed executrix and that Ethel and Juanita Morris be ordered to account for the properties received by them and to return the same to Maxine.

Grimm's second wife and two children alleged that they were defrauded due to the machinations of the Roberts spouses, that the 1978 Utah compromise agreement was illegal, that the intestate proceeding is void because Grimm died testate and that the partition was contrary to the decedent's wills.

Ethel filed a motion to dismiss the petition. Judge Leonidas denied it for lack of merit in his order of October 27, 1980. Ethel then filed a petition for certiorari and prohibition in this Court, praying that the testate proceeding be dismissed, or alternatively, that the two proceedings be consolidated and heard in Branch 20 and that the matter of annulment of the Utah compromise agreement be heard prior to the petition for probate.

Ruling - We hold that respondent judge did not commit any grave abuse of discretion, amounting to lack of jurisdiction, in denying Ethel's motion to dismiss.

A testate proceeding is proper in this case because Grimm died with two wills and "no will shall pass either real or personal property unless it is proved and allowed."

The probate of the will is mandatory. It is anomalous that the estate of a person who died testate should be settled in an intestate proceeding. Therefore, the intestate case should be consolidated with the testate proceeding and the judge assigned to the testate proceeding should continue hearing the two cases.

Ethel may file within twenty days from notice of the finality of this judgment an opposition and answer to the petition unless she considers her motion to dismiss and other pleadings sufficient for the purpose. Juanita G. Morris, who appeared in the intestate case, should be served with copies of orders, notices and other papers in the testate case.

WHEREFORE, the petition is dismissed. The temporary restraining order is dissolved. No Costs.

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Makasiar (Chairman), Guerrero and de Castro, JJ., concur. Concepcion, Jr. and Abad Santos, JJ., no part. Escolin, J., in the result.

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DOROTHEO v COURT OF APPEALSG.R. No. 108581, 8 December 1999

320 SCRA 12

Dorotheo distinguishes between the extrinsic and intrinsic validity of a will. It holds that the admission of a will to probate does not necessarily mean the provisions of the will can be given effect. The inquiry during probate of the will focuses only on formal or extrinsic validity. Even as a probate order is issued, it is not a guaranty that the testamentary dispositions are valid and would thus be given effect. In sum, extrinsic validity is one thing; intrinsic validity is another.

Ynares-Santiago, J.:

May a last will and testament admitted to probate but declared intrinsically void in an order that has become final and executory still be given effect? This is the issue that arose from the following antecedents.

Private respondents1 were the legitimate children of Alejandro Dorotheo and Aniceta Reyes. The latter died in 1969 without her estate being settled. Alejandro died thereafter. Sometime in 1977, after Alejandro’s death, petitioner,2 who claims to have taken care of Alejandro before he died, filed a special proceeding for the probate of the latter’s last will and testament. In 1981, the court issued an order admitting Alejandro’s will to probate. Private respondents did not appeal from said order. In 1983, they filed a “Motion to Declare The Will Intrinsically Void.” The trail court granted the motion and issued an order, the dispositive portion of which reads:

“WHEREFORE, in view of the foregoing, Order is hereby issued declaring Lourdes Legaspi not the wife of the late Alejandro Dorotheo, the provisions of the last will and testament of Alejandro Dorotheo as intrinsically void, and declaring the oppositors Vicente Dorotheo, Jose Dorotheo and Nilda Dorotheo Quintana as the only heirs of the late spouses Alejandro Dorotheo and Aniceta Reyes, whose respective estates shall be liquidated and distributed according to the laws on intestacy upon payment of estate and other taxes due to the government.”

Petitioner moved for reconsideration arguing that she is entitled to some compensation since she took care of Alejandro prior to his death although she admitted that they were not married to each other. Upon denial of her motion for reconsideration, petitioner appealed to the Court of Appeals, but the same was dismissed for failure to file appellant’s brief within the extended period granted. This dismissal became final and executory on February 3, 1989 and a corresponding entry of judgment was forthwith issued by the Court of Appeals on May 16, 1989. A writ of execution was issued by the lower court to implement the final and executory Order. Consequently, private respondent filed several motions including a motion to compel

1 Nilda D. Quintana for herself and as Attorney-in-Fact of Vicente Dorotheo and Jose Dorotheo.

2 Lourdes L. Dorotheo

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petitioner to surrender to them the Transfer Certificate of Titles (TCT) covering the properties of the late Alejandro. When petitioner refused to surrender the TCT’s, private respondents filed a motion for cancellation of said titles and for issuance of new titles in their names. x x x.

An order was issued on November 29, 1990 by Judge Zain B. Angas setting aside the final and executory Order dated January 30, 1986, as well as the Order directing the issuance of the writ of execution, on the ground that the order was merely “interlocutory,” hence not final in character. The court added that the dispositive portion of the said Order even directs the distribution of the estate of the deceased spouses. Private respondents filed a motion for reconsideration which was denied in an Order dated February 1, 1991. Thus, private respondents filed a petition before the Court of Appeals, which nullified the two assailed orders dated November 29, 1990 and February 1, 1991.

Aggrieved, petitioner instituted a petition for review arguing that the case filed by private respondents before the Court of Appeals x x x. Petitioner likewise assails the Order of the Court of Appeals upholding the validity of the January 30, 1986 Order which declared the intrinsic invalidity of Alejandro’s will that was earlier admitted to probate.

x x x

The petition is without merit. A final and executory decision or order can no longer be disturbed or reopened no matter how erroneous it may be. In setting aside the January 30, 1986 Order that has attained finality, the trial court in effect nullified the entry of judgment made by the Court of Appeals. It is well settled that a lower court cannot reverse or set aside decisions or orders of a superior court, for to do so would be to negate the hierarchy of courts and nullify the essence of review. It has been ruled that a final judgment on probated will, albeit erroneous, is binding on the whole world.

x x x

It should be noted that probate proceedings deals generally with the extrinsic validity of the will sought to be probated, particularly on three aspects:

whether the will submitted is indeed, the decedent’s last will and testament;

compliance with the prescribed formalities for the execution of wills; the testamentary capacity of the testator; and the due execution of the last will and testament.

Under the Civil Code, due execution includes a determination of whether the testator was of sound and disposing mind at the time of its execution, that he had freely executed the will and was not acting under duress, fraud, menace or undue influence and that the will is genuine and not a forgery, that he was of the proper

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testamentary age and that he is a person not expressly prohibited by law from making a will.

The intrinsic validity is another matter and questions regarding the same may still be raised even after the will has been authenticated. Thus, it does not necessarily follow that an extrinsically valid last will and testament is always intrinsically valid. Even if the will was validly executed, if the testator provides for dispositions that deprives or impairs the lawful heirs of their legitime or rightful inheritance according to the laws on succession, the unlawful provisions/dispositions thereof cannot be given effect. This is specially so when the courts had already determined in a final and executory decision that the will is intrinsically void. Such determination having attained that character of finality is binding on this Court which will no longer be disturbed. Not that this Court finds the will to be intrinsically valid, but that a final and executory decision of which the party had the opportunity to challenge before the higher tribunal must stand and should no longer be reevaluated. Failure to avail of the remedies provided by law constitutes waiver. And if the party does not avail of other remedies despite its belief that it was aggrieved by a decision or court action, then it is deemed to have fully agreed and is satisfied with the decision or order. As early as 1918, it has been declared that public policy and sound practice demand that, at the risk of occasional errors, judgments of courts must at some point of time be fixed by law become final, otherwise there will be no end to litigation. Interes rei publicae ut finis sit litium – the very object of which the courts were constituted was to put and end to controversies. To fulfill this purpose and to do so speedily, certain time limits, more or less arbitrary, have to be set up to spur on the slothful. The only instance where a party interested in a probate proceeding may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence, which circumstances do not concur herein.

Petitioner was privy to the suit calling for the declaration of the intrinsic invalidity of the will, as she precisely appealed from an unfavorable order therefrom. Although the final and executory Order of January 30, 1986 wherein private respondents were declared as the only heirs do not bind those who are not parties thereto such as the alleged illegitimate son of the testator, the same constitutes res judicata with respect to those who were parties to the probate proceedings. Petitioner cannot again raise those matters anew for relitigation otherwise that would amount to forum shopping. It should be remembered that forum shopping also occurs when the same issued had already been resolved adversely by some other court. It is clear from the executory order that the estates of Alejandro and his spouse should be distributed according to the laws of intestate succession.

x x x

It can be clearly inferred from Article 960 of the Civil Code, on the law on successional rights that testacy is preferred to intestacy. But before there could be testate distribution, the will must pass the scrutinizing test and safeguards provided by law considering that the deceased testator is no longer available to prove the voluntariness of his actions, aside from the fact that transfer of the estate is usually onerous in nature and that no one is presumed to give – nemo praesumitur donare.

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No intestate distribution of the estate can be done unless the will had failed to pass both extrinsic and intrinsic validity. If the will is extrinsically void, the rules of intestacy apply regardless of the intrinsic validity thereof. If it is extrinsically valid, the test is to determine its intrinsic validity – that is, whether the provisions of the will are valid according to the laws of succession. In this case, the court had ruled that the will of Alejandro was extrinsically valid but the intrinsic provisions thereof were void. Thus, the rules of intestacy apply as correctly held by the trial court.

Furthermore, Alejandro’s disposition in his will of the alleged share in the conjugal properties of his late spouse, whom he described as his “only beloved wife,” is not a valid reason to reverse a final and executory order. Testamentary dispositions of properties not belonging exclusively to the testator or properties which are part of the conjugal regime cannot be given effect. Matters with respect to who owns the properties that were disposed of by Alejandro in the void will may still be properly ventilated and determined in the intestate proceedings for the settlement of his and that of his late spouse’s estate,

x x x

WHEREFORE, the petition is DENIED and the decision appealed from is AFFIRMED.

Davide, Jr. (C.J., Chairman), Puno, Kapunan and Pardo, JJ., concur.

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AUSTRIA v REYESNo. L-23079, 27 February 1970

31 SCRA 754

The statement of a false cause in the institution of heirs shall be disregarded, unless it is proved that the testator would not have made such institution had he been properly appraised of the truth. Aside from the fact that the false cause must be stated in the will, the opponents of the will are likewise mandated to prove by substantial evidence that the testator would not have made such a disposition had he known the true state of affairs. Therefore, inferences and conjectures are not sufficient to invalidate a provision which is challenged as one made on the basis of a false cause.

Please note that the false cause which led the testator to make a particular testamentary disposition is treated in the same way as a mistake, which in contract law, vitiates consent.

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 the 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. The 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-Menez, 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 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 for 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."

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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, x x x the petitioners Ruben Austria, et 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-Menez, who entered an appearance separately from that of her brother Perfecto Cruz, filed x x x 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-Menez, Isagani Cruz, Alberto Cruz and Luz Cruz-Salonga, all of whom are heirs in the will of the deceased Basilia, and all of whom claim kinship with the

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decedent by virtue of legal adoption. At the heart of the controversy is Basilia's last will - immaculate in its extrinsic.

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 which regard to the legitime of said heirs.

The lower court must have assumed that since the petitioners nephews and nieces are not compulsory heirs, they do not possess that interest which can be prejudiced by a free-wheeling testamentary disposition. The petitioner's 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 nieces, 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.

x x x

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Kung ako ay bawian ng Dios ng buhay, ay aking ipinamamana ang aking ari-ariang maiiwan, sa kaparaanang sumusunod:

A. Aking ipinamamana sa aking nabaggit 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 parte iguales), bilang kanilang sapilitang mana (legitima), ang kalahati (1/2) 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 na itinutukoy sa No. 1 ng parafo IV ng testamentong ito, ang kalahati (1/2) 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 (1/2) ng ilang lagay na lupa na nasa Tinejeros, Malabon, Rizal, na aking namana sa yumaong 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 nieces 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 must be stated in the will; second, the cause must be shown to be false; and third, it must appear on 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 the legitime. 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

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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. x x x

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 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 respondent Perfecto Cruz et al. from the inheritance, then the petitioners and the other nephews and nieces would succeed to the bulk of the estate 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."

Testacy is favored and doubts are resolved in its side, especially where the will evinces an intention on the part of the testator to dispose of practically his whole estate, 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. 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.

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 collateral attack. x x x

ACCORDINGLY, the present petition is denied, at petitioners' cost.

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Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Fernando, Teehankee, Barredo and Villamor, JJ., concur.

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REYES v BARRETTO-DATUNo. L-17818, 25 January 1967

19 SCRA 85

Preterition is the omission of one, some or all compulsory heirs in the direct line, whether living at the time of the death of the testator, or born subsequent thereto. Among other things, Reyes holds that omission from the inheritance, as an element of preterition, must be a total omission, such that if a compulsory heir in the direct line received something from the testator under the terms of the will, such heir cannot be considered preterited.

Reyes, J.B.L., J.:

x x x

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 Certificate 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 to 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 nephews and nieces. The usufruct of the fishpond situated in barrio San Roque, Hagonoy, Bulacan, above-mentioned, however, was reserved for his widow, Maria Gerardo. In the meantime, Maria Gerardo was appointed 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

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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.

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 over 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:

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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 the testament; for Bibiano Barretto was at liberty to assign the free portion of his estate to whomsoever he chose. While the share (1/2) 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 omission, of a forced heir. For this reason, Neri v 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, Article 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 would 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 of 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 v 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 has 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.

x x x

The only instance that we can think of in which a party interested in a probate

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proceeding may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake of inadvertence not imputable to negligence. Even then, the better practice to secure relief is reopening of the same case by proper motion within the elementary 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.

x x x

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 appellee's 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, 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 place, granting that there was such fraud, relief therefrom can only be obtained within 4 years from its discovery, and the records shows that this period had lapsed long ago.

x x x

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 19939, 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 plaintiff's 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 Manila now under appeal is reversed and set aside insofar as it orders plaintiff-appellant to reconvey to appellee Milagros Barretto-Datu the properties enumerated in said decision, and the same is affirmed insofar 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 of partition of the fishpond (Lot 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 cost.

Concepcion, C.J., Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar, Sanchez and Castro, JJ., concur.

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AZNAR v DUNCANNo. L-24365, 30 June 1966

17 SCRA 590

The concept of total omission from the hereditary estate is further explained in this case. While the traditional concept of omission, based on Roman Law, means that the compulsory heir was not instituted as an heir, the same was abandoned so that if a compulsory heir were given a legacy by the testator in the will (without instituting him or her as an heir), the said compulsory heir can no longer claim the benefit of Article 854.

One point deserves some consideration. Admittedly, the testator was a citizen of the State of California. Under the present Civil Code, "testate and intestate succession, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions shall be regulated by the national law of the person whose succession is under consideration." (Article 16, Civil Code) In the foregoing case, the estate of the testator was distributed in accordance with Philippine law, taking into account the fact that Article 854 was made to apply. This point needs clarification.

Makalintal, J.:

Edward E. Christensen, a citizen of California with domicile in the Philippines, died leaving a will executed on March 5, 1951. The will was admitted to probate by the Court of First Instance of Davao x x x. In that same decision, the court declared that Maria Helen Christensen Garcia (hereinafter referred to as Helen Garcia) was a natural child of the deceased. The declaration was appealed to this Court, and was affirmed in its decision of February 14, 1958.

x x x

On October 29, 1964, the Court of First Instance of Davao issued an order approving the project of partition submitted by the executor x x x wherein the properties of the estate were divided equally between Maria Lucy Christensen Duncan (named in the will as Maria Lucy Christensen Daney, and hereinafter referred to as merely Lucy Duncan), whom the testator had expressly recognized in his will as his daughter (natural) and Helen Garcia, who had been judicially declared as such after his death. The said order was based on the proposition that since Helen Garcia had been preterited in the will the institution of Lucy Duncan as heir was annulled, and hence the properties passed to both of them as if the deceased had died intestate, saving only the legacies left in favor of certain other persons, which legacies have been duly approved by the lower court and distributed to the legatees.

The case is once more before us on appeal, this time by Lucy Duncan, on the sole question of whether the estate, after deducting the legacies, should pertain to her and to Helen Garcia in equal shares, or whether the inheritance of Lucy Duncan as instituted heir should be merely reduced to the extent necessary to cover the legitime

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of Helen Garcia, equivalent to 1/4 of the entire estate.The will of Edward E. Christensen contains among others, the following

clauses which are pertinent to the issue in this case:

3. I declare x x x that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN (now Mrs. Bernard Daney), who was born in the Philippines about twenty-eight years ago, who is now residing at No. 665 Rodger Young Village, Los Angeles, California, U.S.A.

4. I further declare that I now have no living ascendants, and no descendants except my above-named daughter, MARIA LUCY CHRISTENSEN DANEY.

x x x

7. I give, devise and bequeath unto MARIA HELEN CHRISTENSEN, now married to Eduardo Garcia, about eighteen years of age and who, notwithstanding the fact that she was baptized Christensen, is not in any way related to me, nor has she been at any time adopted by me, and who, from all information I have now resides in Egpit, Digos, Davao, Philippines, the sum of THREE THOUSAND SIX HUNDRED PESOS (P3,600.00), Philippine Currency, the same to be deposited in trust for said Maria Christensen with the Davao Branch of the Philippine National Bank, and paid to her at the rate of One Hundred Pesos (P100.00) per month until the principal as well as any interest which may have accrued thereon, is exhausted.

x x x

12. I hereby give, devise and bequeath, unto my well-loved daughter, the said MARIA LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney) now residing, as aforesaid, at no. 665 Rodger Young Village, Los Angeles, California, U.S.A. all the income from the rest, remainder and residue of my property and estate, real, personal and/or mixed, of whatsoever kind and character, and wheresoever situated, of which I may be possessed at my death and which may have come to me from any source whatsoever, during her lifetime; Provided however, that should the said MARIA LUCY CHRISTENSEN DANEY at any time prior to her decease having living issue, then and in that event, the life interest herein given shall terminate, and if so terminated, then I give, devise and bequeath to my daughter, the said MARIA LUCY CHRISTENSEN DANEY, the rest, remainder and residue of my property with same force and effect as if I had originally so given, devised and bequeathed it to her; and provided further, that should the said MARIA LUCY CHRISTENSEN DANEY die without living issue, then and in that event x x x.

The trial court ruled, and appellee now maintains, that there has been preterition of Helen Garcia, a compulsory heir in the direct line, resulting in the annulment of the institution of heir, pursuant to Article 854 of the Civil Code which provides:

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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.

On the other hand, appellant contends that this is not a case of preterition, but is governed by Article 906 of the Civil Code which says: "Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him may demand that the same be fully satisfied." Appellant also suggests that considering the provisions of the will whereby the testator expressly denied his relationship with Helen Garcia, but left to her a legacy nevertheless, although less than the amount of her legitime, she was in effect defectively disinherited within the meaning of Article 918, which reads:

Art. 918. Disinheritance without a specification of the cause, or for a cause the truth of which, if contradicted, is not proved, or which is not one of those set forth in this Code, shall annul the institution of heirs insofar as it may prejudice the person disinherited; but the devises and legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitime.

Thus, according to appellant, under both Articles 906 and 918, Helen Garcia is entitled only to the legitime, and not to a share of the estate equal that of Lucy Duncan as if the succession were intestate.

Article 854 is a reproduction of Article 814 of the Spanish Civil Code; and Article 906 of Article 815. Commenting on Article 815, Manresa explains:

Como dice Goyena, en el caso de pretericion puede presumirse ignorancia o falta de memoria en el testador; en el dejar algo al heredero forzoso, no. Este no se encuentra privado totalmente de su legitima; ha recibido por cualquier titulo una porcion de los bienes hereditarios, porcion que no alcanza a completar la legitima, pero que influeye poderosamente en el animo del legislador para decidirle a adoptar una solucion bien diferente de la senalada para el caso de pretericion.

El testador no ha olvidado por completo al heredero forzoso; le ha dejado bienes; pero haciendo un calculo equivocado, ha repartido en favor de extranos o en favor de otros legitimarios por via de legado, donacion o mejora mayor cantidad de la que la ley de consentia disponer. El heredero forzoso no puede perder su legitima, pero tampoco puede pedir mas que la misma. De aqui su derecho a reclamar solamente lo que le falta; al complemento de la porcion que forzosamente la corresponde.

Dejar el testador por cualquier titulo, equivale a disponer en testamento por titulo de herencia, legado o mejora, y en favor de legitimarios, de alguna cantidad o porcion de bienes menos que la legitima o igual a la misma.Tal sentido, que es el mas propio en el articulo 815, no pugna tampoco con la doctrina de la ley. Cuando en el testamento se deja al heredero forzoso, la pretericion es incompleta; as mas formularia que real. Cuando en el testamento

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nada se deja el legitimario, hay verdadera pretericion. On the difference between preterition of a compulsory heir and the right to ask

for completion of his legitime, Sanchez Roman says:

La desheredacion, como expresa, es siempre voluntaria; la pretericion puede serlo, pero se presume involuntaria la omision en que consiste, en cuanto olvida o no atiende el testador en su testamento a la satisfaccion del derecho a la legitima del heredero forzoso preterido, prescindiendo absoluta y totalmente de el y no mencionandole en ninguna de sus disposiciones testamentarias, o no instituyendole en parte alguna de la herencia, ni por titulo de heredero ni por el de legatar o aunque le mencionara o nombrada sin dejarle mas or menos bienes. Si le dejara algunos, por pocos que sean e insuficientes para cubrir su legitima, ya no seria case de pretericion, sino de complemento de aquella. El primer supuesto o de pretericion, se regula por el articulo 814, y produce accion de nulidad de la institucion de heredero; y el segundo, o de complemento de legitima por el 815 y solo origina la accion ad suplementum, para completar la legitima.

Manresa defines preterition as the omission of the heir of the will, either by not naming him at all, or while mentioning him as father, son, etc., by not instituting him as heir without disinheriting him expressly, not assigning to him some part of the properties. Manresa continues:

Se necesita, pues: (a) Que la omision se refiera a un heredero forzoso; (b) Que la omision sea completa; que el heredero forzoso nada recibida en el testamento:

x x x

B. Que la omision sea completa - Esta condicion se deduce del mismo Articulo 814 y resulta con evidencia el relacionar este articulo con el 815. El heredero forzoso a quien el testador deja algo por cualquier titulo en su testamento, no se halla propiamente omitido, pues se le nombra y se le reconoce participacion en los bienes hereditarios. Podria discutirse en el Articulo 814 si era o no necesario que se reconociese el derecho como tal heredero, pero el articulo 815 desvanece esta duda.Aquel se ocupa de privacion completa o total, tacita; este, de la privacion parcial. Los efectos deben ser y son, como veremos, completamente distintos.

La privacion de la legitima puede ser total o parcial.

Privar totalmente de la legitima es negaria en absoluto al legitimario, despojarle de ella por completo. A este caso se refiere el articulo 814. Privar parcialmente de la legitima, es menguarla o reducirla, dejar al legitimario una porcion menor que la que le corresponde. A este caso se refiere el articulo 815. En 813 sienta, pues, una regla general, y las consecuencias del que bratamiento de esta regla se determina en los articulos 814 y 815.

Again Sanchez Roman:

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QUE LA OMISION SEA TOTAL - Aunque el articulo 814 no consigna de modo expreso esta circunstancia de que la pretericion o falta de mencion e institucion o disposicion testamentaria a su favor, sea total, completa y absoluta, asi se deduce de no hacer distincion o salvedad alguna empleandola en terminos generales; perso sirve o confirmarlo de un modo indudable siguiente articulo 815, al decir que el heredero forzoso a quien el testador haya dejado, por cualquier titulo, menos de la legitima que la corresponda, podria pedir el complemento de la misma, lo cual ya no son el caso ni los efector de la pretericion, que anula la institucion, sino simplemente los del suplemento necesario para cubrir su legitima.

The question may be posed: In order that the right of a forced heir may be limited only to the completion of his legitime (instead of the annulment of the institution of heirs) is it necessary that what has been left to him in the will "by any title," as by legacy, be granted to him in his capacity as heir, that is, a titulo de heredero? In order words, should he be recognized or referred to in the will as heir? This question is pertinent because in the will of the deceased Edward E. Christensen, Helen Garcia is not mentioned as an heir - indeed her status as such is denied - but is given a legacy of P3,600.00.

While the classical view, pursuant to the Roman Law, gave an affirmative answer to the question, according to both Manresa (6 Manresa 7ed 436) and Sanchez Roman (Tomo VI, Vol. 2.0 p. 937), that view was changed by Article 645 of the "Proyecto de Codigo de 1851," later on copied in Article 906 of our own Code. Sanchez Roman, in the citation given above, comments as follows:

RESPECTO DEL COMPLEMENTO DE LA LEGITIMA - Se inspira el Codigo en esta materia en la doctrina clasica del Derecho romano y patrio (2); pero con alguna racional modificacion. Concedian aquellos precedentes legales al heredero forzoso, a quien no se le dejaba por titulo de tal el completo de su legitima, la accion para invalidar la institucion hecha en el testamento y reclamar y obtener aquella mediante el ejercicio de la querella de inoficioso, y aun cuando resultara favorecido como donatario, por otro titulo que no fuera el de heredero, sino al honor de que se le privaba no dandole este caracter, y solo cuando era istituido heredero en parte o cantidad inferior a lo que le correspondiera por legitima, era cuando bastaba el ejercicio de la accion ad suplementum para completarla, sin necesidad de anular las otras instituciones de heredero o demas disposiciones contenidas en el testamento.

El articulo 851 se aparta de este criterio estricto y se ajusta a la unica necesidad que le inspira, cual es la de que se complete la legitima del heredero forzoso, a quien por cualquier titulo se haya dejado menos de lo que le corresponda, y se le otorga tan solo el derecho de pedir el complemento de la misma sin necesidad de que se anulen las disposiciones testamentarias, que se reduciran en lo que sean inoficiosas, conforme al articulo 817, cuya interpretacion y sentido tienen ya en su apoyo la sancion de la jurisprudencia (3); siendo condicion precisa que lo que se hubiere dejado de menos de la legitima al heredero forzoso, lo haya sido en el testamento, o sea por disposicion del testador, segun lo revela el texto del articulo, "el heredero forzoso a quien el testador haya dejado, etc., esto es, por titulo de legado o

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donacion mortis causa en el testamento y, no fuera de al." Manresa cites particularly three decisions of the Supreme Court of Spain dated

January 16, 1895, May 25, 1917 and April 23, 1932, respectively. In each one of those cases the testator left to one who was a forced heir a legacy worth less than the legitime, but without referring to the legatee as an heir or even as a relative, and willed the rest of the estate to other persons. It was held that Article 815 applied, and the heir could not ask that the institution of heirs be annulled entirely, but only that the legitime be completed. (6 Manresa pp. 438, 441)

The foregoing solution is indeed more in consonance with the expressed wishes of the testator in the present case as may be gathered very clearly from the provisions of his will. He refused to acknowledge Helen Garcia as his natural daughter, and limited her share to a legacy of P3,600.00. The fact that she was subsequently declared judicially to possess such status is no reason to assume that had the judicial declaration come during his lifetime his subjective attitude towards her would have undergone any change and that he would have willed his estate equally to her and to Lucy Duncan, who alone was expressly recognized by him.

The decision of this Court in Neri et al. v Akutin, 74 Phil 185, is cited by appellees in support of their theory of preterition. That decision is not here applicable, because it referred to a will where "the testator left all his property by universal title to the children by his second marriage, and (that) without expressly disinheriting the children by his first marriage, he left nothing to them, or at least, some of them." In the case at bar the testator did not entirely omit oppositor-appellee Helen Garcia, but left her a legacy of P3,600.00.

The estate of the deceased Christensen upon his death consisted of 399 shares of stocks in the Christensen Plantation company and a certain amount in cash. One-fourth (1/4) of said estate descended to Helen Garcia as her legitime. Since she became the owner of her share as of the moment of the death of the decedent (Arts. 774, 777, Civil Code), she is entitled to a corresponding portion of all the fruits or increments thereof subsequently accruing. These include the stock dividends on the corporate holdings. The contention of Lucy Duncan that all such dividends pertain to her according to the terms of the will cannot be sustained, for it would in effect impair the right of ownership of Helen Garcia with respect to her legitime.

One point deserves to be mentioned, although no reference to it has been made in the brief for oppositor-appellant. It is the institution of substitute heirs to the estate bequeathed to Lucy Duncan in the event she would die without living issue. This substitution results in effect from the fact that under paragraph 12 of the will she is entitled only to the income from said estate, unless prior to her decease she should have living issue, in which event she would inherit in full ownership; otherwise the property will go to the other relatives of the testator named in the will. Without deciding this point, since it is not one of the issues raised before us, we might call attention to the limitations imposed by law upon this kind of substitution, particularly that which says that it can never burden the legitime (Art. 864, Civil Code), which means that the legitime must descend to the heir concerned in fee simple.

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Wherefore, the order of the trial court dated October 29, 1964, approving the project of partition as submitted by the executor-appellee, is hereby set aside; and the case is remanded with instructions to partition the hereditary estate anew as indicated in this decision, that is, by giving to oppositor-appellee Maria Helen Christensen Garcia no more than the portion corresponding to her as legitime, equivalent to one-fourth (1/4) of the hereditary estate, after deducting all debts and charges which shall not include those imposed in the will of the decedent, in accordance with Article 908 of the Civil Code. Costs against appellees in this instance.

Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Bengzon J.P., Zaldivar and Sanchez, JJ., concur.

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NUGUID v NUGUIDNo. L-23445, 23 June 1966

17 SCRA 449

As a general rule, the area of inquiry of a probate court is limited to the testamentary capacity of the testator and the due execution of the will. However, if it should appear on the face of the will that the sole disposition is intrinsically invalidity, and that nothing is gained from an inquiry into extrinsic validity, then a probe into the testamentary disposition, and the consequential invalidation thereof is justified for practical considerations. While Article 854 annuls merely the institution of heir, the court is justified in declaring the entire will void if the only testamentary disposition in the questioned will is the institution of the universal heir. In such a case, the effect of the nullification of the testamentary disposition would be the same as the nullification of the will itself.

Sanchez, J.:

Rosario Nuguid x x x died on December 30, 1962, single, without descendants, legitime or illegitimate. Surviving her were her legitimate parents, Felix Nuguid and Paz Salonga Nuguid, and six (6) brothers and sisters, namely: Alfredo, Federico, Remedios, Conrado, Lourdes and Alberto, all surnamed Nuguid.

On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of Rizal a holographic will allegedly executed by Rosario Nuguid x x x some 11 years before her demise. Petitioner prayed that said will be admitted to probate and that letters of administration with the will annexed be issued to her.

On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate father and mother of the deceased Rosario Nuguid, entered their opposition to the probate of her will. Ground therefor, inter alia, is that by the institution of petitioner Remedios Nuguid as universal heir of the deceased, oppositors - who are compulsory heirs of the deceased in the direct ascending line - were illegally preterited and that in consequence the institution is void.

On August, 29, 1963, before a hearing was had on the petition for probate and objection thereto, oppositors moved to dismiss on the ground of absolute preterition.

On September 6, 1963, petitioner registered her opposition to the motion to dismiss.

The court's order of November 8, 1963, held that "the will in question is a complete nullity and will perforce create intestacy of the estate of the deceased Rosario Nuguid" and dismissed the petition without cost.

A motion to reconsider having been thwarted below, petitioner came to this Court on appeal.

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1. Right at the outset, a procedural aspect has engaged our attention. The case is for the probate of a will. The court's area of inquiry is limited - to an examination of, and resolution on, the extrinsic validity of the will. The due execution thereof, the testatrix's testamentary capacity, and the compliance with the requisites or solemnities by law prescribed, are the questions solely to be presented, and to be acted upon, by the court. Said court at this stage of the proceedings - is not called upon to rule on the intrinsic validity or efficacy of the provisions of the will, the legality of any devise or legacy therein.

A peculiar situation is here thrust upon us. The parties shunted aside the question of whether or not the will should be allowed probate. For them, meat of the case is the intrinsic validity of the will. Normally, this comes only after the court has declared that the will has been duly authenticated. But petitioner and oppositors in the court below and here on appeal, traveled on the issue of law, to wit: Is the will intrinsically a nullity?

We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On the contrary, this litigation will be protracted. And for aught that appears in the record, in the event of probate or if the court rejects the will, probability exists that the case will come up once again before us on the same issue of the intrinsic validity or nullity of the will. Result: waste of time, effort, expense plus added anxiety. These are the practical considerations that induce us to a belief that we might as well meet head-on the issue of the validity of the provisions of the will in question. After all, there exists a justiciable controversy crying for solution.

2. Petitioner's sole assignment of error challenges the correctness of the conclusion below that the will is a complete nullity. x x x

Reproduced hereunder is the will:

Nov. 17, 1951

I, ROSARIO NUGUID, being of sound and disposing mind and memory, having amassed a certain amount of property, do hereby give, devise and bequeath all of the property which I may have when I die to my beloved sister Remedios Nuguid, age 34, residing with me at 38-B Iriga, Q.C. In witness whereof, I have signed my name this seventeenth day of November, nineteen hundred and fifty-one.

Sgd. (Illegible)T/ ROSARIO NUGUID

The statute we are called upon to apply is Article 854 of the Civil Code which, in part, provides:

ART. 854. The preterition or omission of one, some or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heirs, but the devises and legacies shall be valid insofar as they are not inofficious. x x x

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Except for inconsequential variation in terms, the foregoing is a reproduction of Article 814 of the Civil Code of Spain in 1889, which is similarly herein copied, thus:

Art. 814. The preterition of one or all of the forced heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall void the institution of heir; but the legacies and betterments shall be valid in so far as they are not inofficious. x x x

A comprehensive understanding of the term preterition employed in the law becomes a necessity. On this point Manresa comments:

La pretericion consiste en omitar el heredero en el testamento. O no se le nombra siquiera o aun nombrandole como padre, hijo, etc., no se le instituya heredero ni se le deshereda expresamente, ni se le asigna parte alguna de los bienes resultando privado de un modo tacito de su derecho a legitima.

Para que exista pretericion, con arreglo al articulo 814, basta que en el testamento omita el testador a uno cualquiera de aquellos a quienes por su muerte corresponda la herencia forzosa.

Se necesita, pues, a) que la omision se refiera a un heredero forzoso, b) que la omision sea completa; que el heredero forzoso nada reciba en el testamento.

It may now appear trite but nonetheless helpful in giving us a clear perspective of the problem before us, to have on hand a clear-cut definition of the word annul:

To "annul" means to abrogate, to make void; x x x (Citation omitted.)

The word "annul" as used in statute requiring court to annul alimony provisions of divorce decree upon wife's remarriage means to reduce to nothing; to annihilate; obliterate; blot out; to make void or of no effect; to nullify; to abolish. (Citation omitted.)

ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect; to nullify; to abolish; to do away with. (Citations omitted.)

And now, back to the facts and the law. The deceased Rosario Nuguid left no descendants, legitimate or illegitimate. But she left forced heirs in the direct ascending line - her parents, now oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will completely omits both of them. They thus received nothing by the testament; tacitly, they were deprived of their legitime; neither were they expressly disinherited. This is a clear case of preterition. Such preterition in the words of Manresa "anulara siempre la institucion de heredero, dando caracter absoluto a este ordenamiento," referring to the mandate of Article 814, now 854 of the Civil Code. The one-sentence will here institutes petitioner as the sole, universal heir - nothing more. No specific legacies or bequests are therein provided for. It is in this posture that we say that the nullity is complete. Perforce, Rosario Nuguid died intestate. Says Manresa:

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En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir, en todo o en parte? No se anade limitacion alguna, como en el articulo 851, en el que se expresa que se anulara la institucion de heredero en cuanto perjudique a la legitima del deseheredado. Debe, pues, entenderse que la anulacion es completa o total, y que este articulo como especial en el caso que le motiva, rige con preferencia al 817.

The same view is expressed by Sanchez Roman:

La consecuencia de la anulacion o nulidad de la institution de heredero por pretericion de uno, various o todos los forzosos en linea recta, es la apertura de la sucesion intestada, total o parcial. Sera total, cuando el testador que comete la pretericion, hubiese dispuesto de todos los bienes por titulo universal de herencia en favor de los herederos instituidos, cuya institucion se anula, porque asi lo exige la generalidad del precepto legal del art. 814, al determinar, como efecto de la pretericion, el de que "anulara la institucion de heredero." x x.

Really, as we analyze the worn annul employed in the statute, there is no escaping the conclusion that the universal institution of petitioner to the entire inheritance results in totally abrogating the will. Because, the nullification of such institution of universal heir - without any other testamentary disposition in the will - amounts to a declaration that nothing at all was written. Carefully worded and in clear terms, Article 854 offers no leeway for inferential interpretation. Giving it an expansive meaning will tear up by the roots the fabric of the statute. On this point, Sanchez Roman cites the Memoria Annual del Tribunal Supremo, correspondiente a 1908, which in our opinion expresses the rule of interpretation, viz:

x x x El art. 814, que preceptua en tales casos de pretericion la nulidad de la institucion de heredero, no consiente interpretacion alguna favorable a la persona instituida en el sentido antes expuesto, aun cuando parezca, y en algun caso pudiera ser, mas o menos equitativa, porque una nulidad no significa en Derecho sino la suposicion de que el hecho o el acto no se ha realizado, debiendo, por lo tanto, procederse sobre tal base o supuesto, y consiguientemente, en un testamento donde falte la institucion, es obligado llamar a los herederos forzosos en todo caso, como habria que llamar a los de otra clase, cuando el testador no hubiese distribudo todos sus bienes en legados, siendo tanto mas obligada esta consecuencia legal cuanto que, en materia de testamentos, sabido es, segun tiene declarado la jurisprudencia, con repeticion, que no basta que sea conocida la voluntad de quien testa si esta voluntad no aparece en la forma y en las condiciones que la ley ha exigido para que sea valido y eficaz, por lo que constituiria una interpretacion arbitraria, dentro del derecho positivo, reputar como legatario a un heredero cuya institucion fuese anulada con pretexto de que esto se acomodaba mejor a la voluntad del testador, pues aun cuando asi fuese, sera esto razon para modificar la ley, pero no autoriza a una interpretacion contraria a sus terminos y a los principios que informan la testamentificaccion, pues no porque parezca mejor una cosa en el terreno del Derecho constituyente, hay razon para convereste juicio en regla de interpretacion, desvirtuando y anulando por este procedimento lo que el legislador quiere establecer.

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3. We should not be led astray by the statement in Article 854 that, annulment notwithstanding, 'the devices and legacies shall be valid insofar as they are not inofficious." Legacies and devices merit consideration only when they are so expressly given as such in a will. Nothing in Article 854 suggests that the mere institution of a universal heir in a will - void because of preterition - would give the heir so instituted a share in the inheritance. As to him, the will is inexistent. There must be, in addition to such institution, a testamentary disposition granting him bequests or legacies apart and separate from the nullified institution of heir. Sanchez Roman, speaking of the two component parts of Article 814, now 854, states that preterition annuls the institution of heir "totalmente por la pretericion; but added (in reference to legacies and bequests), per subsistiendo, x x todas aquellas otras disposiciones que no se refieren a la institucion de heredero x x. As Manresa puts it, annulment throws open to intestate succession the entire inheritance including la porcion libre (que) no hubiese dispuesto en virtud de legado, mejora o donacion.

As aforesaid, there is no other provision in the will before us except the institution of petitioner as universal heir. That institution, by itself, is null and void. And, intestate succession ensues.

4. Petitioner's mainstay is that the present is "a case of ineffective disinheritance rather than one of preterition." From this, petitioner draws the conclusion that Article 854 "does not apply to the case at bar." This argument fails to appreciate the distinction between preterition and disinheritance.

Preterition "consists in the omission in the testator's will of the forced heirs or anyone of them, either because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly disinherited." Disinheritance, in turn, "is a testamentary disposition depriving any compulsory heir of his share in the legitime for a cause authorized by law." In Manresa's own words, "La privacion expresa de la legitima constituye la desheredacion. La privacion tacita de la misma se denomina pretericion." Sanchez Roman emphasizes the distinction by stating that disinheritance "es siempre voluntaria;" preterition, upon the other hand, is presumed to be "involuntaria." Express as disinheritance should be, the same must be supported by a legal cause specified in the will itself.

The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It simply omits their names altogether. Said will rather than be labeled ineffective disinheritance is clearly one in which the said forced heirs suffer from preterition.

On top of this is the fact that the effects flowing from preterition are totally different from those of disinheritance. Preterition under Article 854 of the Civil Code, we repeat, "shall annul the institution of heir." This annulment is in toto, unless in the will there are, in addition, testamentary dispositions in the form of devices or legacies. In ineffective disinheritance under Article 918 of the same Code, such disinheritance shall also "annul the institution of heirs," but only "insofar as it may prejudice the person disinherited," which last phrase was omitted in the case of preterition. Better stated yet, in disinheritance the nullity is limited to that portion of the estate of which

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the disinherited heirs have been illegally deprived. Manresa's expressive language, in commenting on the rights of the preterited heir in the case of preterition on the one hand and legal disinheritance on the other, runs thus: "Preteridos, adquiren el derecho a todo; desheredados, solo les corresponde un tercio o dos tercios, el caso."

5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to receive their legitimes, but that the institution of heir "is not invalidated," although the inheritance of the heir so instituted is reduced to the extent of said legitimes.

This is best answered by a reference to the opinion of Mr. Chief Justice Moran in the Neri case heretofore cited, viz:

But the theory is advanced that the bequest made by universal title in favor of the children by the second marriage should be treated as legado and mejora and accordingly, it must not be entirely annulled but merely reduced. This theory, if adopted, will result in a complete abrogation of Articles 814 and 851 of the Civil Code. If every case of institution of heirs may be made to fall into the concept of legacies and betterments reducing the bequest accordingly, then the provisions of Articles 814 and 851 regarding total or partial nullity of the institution, would be absolutely meaningless and will never have any application at all. And the remaining provisions contained in said article concerning the reduction of inofficious legacies or betterments would be a surplusage because they would be absorbed by Article 817. Thus, instead of construing, we would be destroying integral provisions of the Civil Code.

The destructive effect of the theory thus advanced is due mainly to a failure to distinguish institution of heirs from legacies and betterments, and a general from a special provision. With reference to Article 814, which is the only provision material to the disposition of this case, it must be observed that the institution of heirs is therein dealt with as a thing separate and distinct from legacies and betterments. And they are separate and distinct not only because they are distinctly and separately treated in said article, but because they are in themselves different. Institution of heirs is a bequest by universal title of property that is undetermined. Legacy refers to specific property bequeathed by a particular or special title. x x x.

The disputed order, we observe, declares the will in question "a complete nullity." Article 854 of the Civil Code in turn merely nullifies "the institution of heir." Considering, however, that the will before us solely provides for the institution of petitioner as universal heir, and nothing more, the result is the same. The entire will is null.

Upon the view we take of this case, the order of November 8, 1963 under review is hereby affirmed. No costs allowed. So ordered.

Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Bengzon, J.P., and Zaldivar, concur.

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BALANAY, JR. v MARTINEZNo. L-39247, 27 June 1975

64 SCRA 454

Balanay stresses the jurisdiction of the probate court. Unless the nullity of the will is patent on its face, the probate court should first pass upon the extrinsic validity of the will before passing upon its substantive validity. Hence, the distinction between this case and Nuguid.

Upon the other hand, while the court correctly modified the husband's right to waive his hereditary right with respect to the estate of the deceased spouse, and his right to waive his half share in the conjugal estate, pursuant to the provisions of Articles 750 and 752 of the Civil Code, the court was silent on the validity of the husband's conformity to the distribution of the conjugal estate in accordance with the terms of the will of the wife. Obviously, the court assumed the validity of the renunciation of the husband of his share in the conjugal estate. Such waiver, however, may fall into one of two possible categories, i.e., inter vivos or mortis causa. If it was a waiver effective inter vivos, then it would have amounted to a donation to inter vivos to the wife. That would have been illegal under existing laws. On the other hand, if it was a waiver mortis causa, then the formalities of a will should have been observed, failing which, the waiver would be void. Furthermore, the waiver mortis causa would have required the wife to survive the husband. In either case, the alleged waiver by the husband of his half share in the conjugal estate resulted in a transmission of property to the wife. And consequently, a characterization of such waiver along the parameters mentioned above is necessary and inescapable. The fundamental question, therefore, that demands an answer is whether or not a husband or wife could waive his or her share in the conjugal estate in favor of the other by an act inter vivos. We exclude, however, a waiver resulting from a successful petition for separation of property, and the liquidation of the conjugal partnership (or for that matter, the absolute community of property) resulting from the issuance of a decree of annulment or a decree of nullity.

It may be surmised that the validity of the waiver had to be assumed, properly or improperly, otherwise the case will fall under the provision of Article 784 which categorically states that the making of a will is strictly a personal act, and that the exercise of testamentary discretion cannot be delegated by a person to another. In any case, Balanay leaves many questions unanswered. Let alone the fact that the decision did not discuss why the husband was not preterited within the meaning of Article 854.

Aquino, J.:

x x x The antecedents of the appeal are as follows:

Leodegaria Julian, a native of Sta Maria, Ilocos Sur, died on February 12, 1973 in Davao City at the age of sixty-seven. She was survived by her husband, Felix Balanay, Sr., and by their six legitimate children, namely, Felix Balanay, Jr., Avelina B. Antonio, Beatriz B. Solamo, Carolina B. Manguiob, Delia B. Lanaban and Emilia B.

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Pabaonon.

Felix J. Balanay, Jr. filed in the lower court a petition dated February 27, 1973 for the probate of his mother's notarial will dated September 5, 1970 which is written in English. In that will Leodegaria Julian declared (a) that she was the owner of the "southern half" of nine conjugal lots; (b) that she was the absolute owner of two parcels of land which she inherited from her father, and (c) that it was her desire that her properties should not be divided among her heirs during her husband's lifetime and that their legitimes should be satisfied out of the fruits of her properties.

Then, in paragraph V of the will she stated that after her husband's death (he was eighty-two years old in 1973) her paraphernal lands and all the conjugal lands (which she described as "my properties") should be divided and distributed in the manner set forth in that part of her will. She devised and partitioned the conjugal lands as if they were all owned by her. She disposed of in the will her husband's one-half share of the conjugal assets.

Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the will on the grounds of lack of testamentary capacity, undue influence, preterition of the husband and alleged improper partition of the conjugal estate. The oppositors claimed that Felix Balanay, Jr. should collate certain properties which he had received from the testatrix.

Felix Balanay, Jr., in his rely to the opposition, attached thereto an affidavit of Felix Balanay, Sr. dated April 18, 1973 wherein he withdrew his opposition to the probate of the will and affirmed that he was interested in its probate. On the same date Felix Balanay, Sr. signed an instrument captioned "Conformation (sic) of Division and Renunciation of Hereditary Rights" wherein he manifested that out of respect for his wife's will he "waived and renounced" his hereditary rights in her estate in favor of their six children. In that same instrument he confirmed the agreement, which he and his wife had perfected before her death, that their conjugal properties would be partitioned in the manner indicated in her will.

Avelina B. Antonio, an oppositor, in her rejoinder contended that the affidavit and "conformation" of Felix Balanay, Sr. were void. The lower court in its order of June 18, 1973 "denied" the opposition and reset for hearing the probate of the will. It gave effect to the affidavit and conformity of Felix Balanay, Sr. In an order dated August 28, 1973, it appointed its branch clerk of court as special administrator of the decedent's estate.

x x x

In the meantime, another lawyer appeared in the case, David O. Montana, Sr., claiming to be the lawyer of petitioner Felix Balanay, Jr. (his counsel of record was Atty. Cabreros), filed a motion dated September 25, 1973 for "leave of court to withdraw probate of alleged will of Leodegaria Julian and requesting authority to proceed by intestate estate proceeding." In that motion, Montana claimed to be the

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lawyer not only of the petitioner, but also of Felix Balanay, Sr., Beatriz B. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon.

x x x

The lower court, acting on the motions of Atty. Montana assumed that the issuance of a notice to creditors was in order since the parties had agreed on that point. It adopted the view of Attys. Montana and Guyo that the will was void. So, in its order of February 28, 1974, it dismissed the petition for the probate, converted the testate proceeding into an intestate proceeding, ordered the issuance of a notice to creditors and set the intestate proceeding for hearing on April 1 and 2, 1974. x x x

Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas, in a verified motion dated April 15, 1974, asked for the reconsideration of the lower court's order of February 28, 1974 on the ground that Atty. Montana had no authority to withdraw the petition for the allowance of the will. Attached to the motion was a copy of a letter dated March 27, 1974 addressed to Atty. Montana and signed by Felix Balanay, Jr., Beatriz V. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon, wherein they terminated Montana's services and informed him that his withdrawal of petition for the probate of the will was without their consent and was contrary to their repeated reminder to him that their mother's will was "very sacred" to them.

Avelina B. Antonio and Delia B. Lanaban opposed the motion for reconsideration. The lower court denied the motion in its order of June 29, 1974. It clarified that it declared the will void on the basis of its own independent assessment of its provisions and not because of Atty. Montana's arguments.

The basic issue is whether the probate court erred in passing upon the intrinsic validity of the will, before ruling on its allowance or formal validity, and in declaring the will void.

We are of the opinion that in view of certain unusual provisions of the will, which are of dubious legality, and because of the motion to withdraw the petition for probate (which the lower court assumed to have been filed with the petitioner's authorization), the trial court acted correctly in passing upon the will's intrinsic validity even before its formal validity had been established. The probate of a will might become an idle ceremony if on its face it appears to be intrinsically void. Where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue (Nuguid v Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with Sumilang v Ramagosa, L-23135, December 26, 1967, 21 SCRA 1369; Cacho v Udan, L-19996, April 30, 1965, 13 SCRA 693).

But the probate court erred in declaring in its order of February 28, 1974 that the will was void and in converting the testate proceeding into an intestate proceeding notwithstanding the fact that in its order of June 18, 1973 it gave effect to the surviving husband's conformity to the will and to his renunciation of his hereditary rights which presumably included his one-half share of the conjugal estate.

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The rule is that "the invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the first invalid disposition had not been made" (Art. 792, Civil Code). "Where some of the provisions of a will are valid and others invalid, the valid parts will be upheld if they can be separated from the invalid without defeating the intention of the testator or interfering with the general testamentary scheme, or doing injustice to the beneficiaries" (95 C.J.S. 873).

The statement of the testatrix that she owned the "southern half" of the conjugal lands is contrary to law because, although she was a co-owner thereof, her share was inchoate and pro indiviso (Art. 143, Civil Code); Madrigal and Paterno v Rafferty and Concepcion, 38 Phil 414). But that illegal declaration does not nullify the entire will. It may be disregarded.

The provision of the will that the properties of the testatrix should not be divided among her heirs during her husband's lifetime but should be kept intact and that the legitimes should be paid in cash is contrary to article 1980 of the Civil Code which reads:

ART. 1080. Should a person make a partition of his estate by an act inter vivos or by will, such partition shall be respected, insofar as it does not prejudice the legitime of the compulsory heirs.

A parent who, in the interest of his or her family, desires to keep any agricultural, industrial or manufacturing enterprise intact, may avail himself of the right granted him in this article, by ordering that the legitime of the other children to whom the property is not assigned, be paid in cash.

The testatrix in her will made a partition of the entire conjugal estate among her six children (her husband had renounced his hereditary rights and his one-half conjugal share). She did not assign the whole estate to one or more children as envisaged in article 1080. Hence, she had no right to require that the legitimes be paid in cash. On the other hand, her estate may remain undivided only for a period of twenty years. So, the provision that the estate should not be divided during her husband's legitime would at most be effective only for twenty years from the date of her death, unless there are compelling reasons for terminating the co-ownership (Art. 1083, Civil Code).

Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half share of the conjugal partnership (Art. 179(1) and 1041, Civil Code), but insofar as said renunciation partakes of a donation of his hereditary rights and his one-half share in the conjugal estate (Art. 1050(1), Civil Code), it should be subject to the limitations prescribed in articles 750 and 752 of the Civil Code. A portion of the estate should be adjudicated to the widower for his support and maintenance. Or at least his legitime should be respected.

Subject to the foregoing observations and the rules on collation, the will is

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intrinsically valid and the partition therein may be given effect if it does not prejudice the creditors and impair the legitimes. The distribution and partition would become effective upon the death of Felix Balanay, Sr. In the meantime, the net income should be equitably divided among the children and the surviving spouse.

It should be stressed that by reason of the surviving husband's conformity to his wife's will and his renunciation of his hereditary rights, his one-half conjugal share became a part of his deceased wife's estate. His conformity had the effect of validating the partition made in paragraph V of the will without prejudice, of course, to the rights of the creditors and the legitimes of the compulsory heirs.

Article 793 of the Civil Code provides that "property acquired after the making of the will shall only pass thereby, as if the testator had possessed it at the time of making the will, should it expressly appear by the will that such was his intention." Under article 930 of the Civil Code, "the legacy of devise of a thing belonging to another person is void, if the testator erroneously believed that the thing pertained to him. But if the thing bequeathed, though not belonging to the testator when he made the will, afterwards becomes his by whatever title, the disposition shall take effect."

In the instant case there is no doubt that the testatrix and her husband intended to partition the conjugal estate in the manner set forth in paragraph V of her will. It is true that she could dispose of by will her half of the conjugal estate (Art. 170, Civil Code) but since the husband, after the dissolution of the conjugal partnership, had assented to her testamentary partition of the conjugal estate, such partition has become valid, assuming that the will may be probated.

The instant case is different from the Nuguid case, supra, where the testatrix instituted as heir her sister and preterited her parents. Her will was intrinsically void because it preterited her compulsory heirs in the direct line. Article 854 of the Civil Code provides that "the preterition or omission of one, some or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will, or born after the death of the testator, shall annul the institution of heir; but devises and legacies shall be valid insofar as they are not inofficious." Since the preterition of the parents annulled the institution of the sister of the testatrix and there were no legacies and devises, total intestacy resulted (Art. 960(2), Civil Code).

In the instant case, the preterited heir was the surviving spouse. His preterition did not produce intestacy. Moreover, he signified his conformity to his wife's will and renounced his hereditary rights.

It results that the lower court erred in not proceeding with the probate of the will as contemplated in its uncancelled order of June 18, 1973. Save in an extreme case where the will on its face is intrinsically void, it is the probate court's duty to pass first upon the formal validity of the will. Generally, the probate of the will is mandatory (Art. 838, Civil Code; Guevara v Guevara, 74 Phil 479 and 98 Phil 249; Fernandez v Dimagiba, L-23638, October 12, 1967, 21 SCRA 428).

As aptly stated by Mr. Justice Barredo, "the very existence of a purported

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testament is in itself prima facie proof that the supposed testator has willed that his estate should be distributed in the manner therein provided, and it is incumbent upon the state that, if legally tenable, such desire should be given effect, independent of the attitude of the parties affected thereby" (Resolution, vda. de Precilla v Narciso, L-27200, August 18, 1972, 46 SCRA 538, 565).

x x x

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

SO ORDERED.

Fernando (Chairman), Barredo, Antonio and Concepcion, JJ., concur.

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CAYETANO v LEONIDASNo. L-54919, 30 May 1984

129 SCRA 522

Article 854 does not apply in the case of a foreign testator who omits in his or her will the compulsory heirs in the direct line. In the case of a foreign testator, the conflict rule enunciated in Article 16 of the Civil Code applies. Therefore, regardless of whatever public policy or good customs may be involved, the provision of Article 854 of the Civil Code cannot is never meant to apply to a foreign testator.

Gutierrez, Jr., J.:

On January 31, 1977, Adoracion C. Campos died, leaving her father, petitioner Hermogenes Campos and her sisters, private respondents Nenita C. Paguia, Remedios C. Lopez, and Marieta C. Medina as the surviving heirs. As Hermogenes Campos was the only compulsory heir, he executed an Affidavit of Adjudication under Rule 74, Section 1 of the Rules of Court whereby he adjudicated unto himself the ownership of the entire estate of the deceased Adoracion Campos.

Eleven months after, on November 25, 1977, Nenita C. Paguia filed a petition for the reprobate of a will of the deceased, Adoracion Campos, which was allegedly executed in the United States and for her appointment as administratrix of the estate of the deceased testatrix.

In her petition, Nenita alleged that the testatrix was an American citizen at the time of her death and was a permanent resident of 4633 Ditman Street, Philadelphia, Pennsylvania, U.S.A.; that the testatrix died in Manila on January 31, 1977 while temporarily residing with her sister at 2167 Leveriza, Malate, Manila; that during her lifetime, the testatrix made her last will and testament on July 10, 1975, according to the laws of Pennsylvania, U.S.A., nominating Wilfredo Barzaga of New Jersey as executor; that after the testatrix's death, her last will and testament was presented, probated, allowed and registered with the Registry of Wills at the County of Philadelphia, U.S.A., that Clement L. McLaughlin, the administrator who was appointed after Dr. Barzaga had declined and waived his appointment as executor in favor of the former, is also a resident of Philadelphia, U.S.A., and that therefore, there is an urgent need for the appointment of an administratrix to administer and eventually distribute the properties of the estate located in the Philippines.

On January 11, 1978, an opposition to the reprobate of the will was filed by herein petitioner alleging among other things that he has every reason to believe that the will in question is a forgery; that the intrinsic provisions of the will are null and void; and that even if pertinent American laws on intrinsic provisions are invoked, the same could not apply inasmuch as they would work injustice and injury to him.

x x x

On January 10, 1979, the respondent judge issued an order, to wit:

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WHEREFORE, the Last Will and Testament if the late Adoracion C. Campos is hereby admitted to and allowed probate in the Philippines, and Nenita Campos Paguia is hereby appointed Administratrix of the estate of said decedent; let Letters of Administration with the Will annexed issue in favor of said Administratrix upon her filing of a bond in the amount of P5,000.00 conditioned upon the provisions of Section 1, Rule 81 of the Rules of Court.

Meanwhile x x x petitioner Hermogenes Campos died and left a will, which incidentally has been questioned by the respondent, his children and forced heirs as, on its face, patently null and void, and a fabrication, appointing Polly Cayetano as the executrix of his last will and testament. Cayetano, therefore, filed a motion to substitute herself as petitioner in the instant case which was granted by the court x x x.

x x x

Petitioner Cayetano persists with the allegations that the respondent judge acted without or in excess of his jurisdiction when:

x x x

3) He ruled that the right of a forced heir to his legitime can be divested by a decree admitting a will to probate in which no provision is made for the forced heir in complete disregard of Law of Succession.

x x x

The third issue raised deals with the validity of the provisions of the will. As a general rule, the probate court's authority is limited only to the extrinsic validity of the will, the due execution thereof, the testatrix's testamentary capacity and the compliance with the requisites and solemnities prescribed by law. The intrinsic validity of the will normally comes only after the court had declared that the will has been duly authenticated. However, where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue. (Maninang v Court of Appeals, 114 SCRA 478).

In the case at bar, the petitioner maintains that since the respondent judge allowed the reprobate of Adoracion's will, Hermogenes C. Campos was divested of his legitime which was reserved by law for him.

This contention is without merit.

Although on its face, the will appeared to have preterited the petitioner and thus, the respondent judge should have denied its reprobate outright, the private respondents have sufficiently established that Adoracion was, at the time of her death, an American citizen and a permanent resident of Philadelphia, Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and 1039 of the Civil Code which respectively provide:

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x x xHowever, intestate and testamentary succession, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found.

Art. 1039 Capacity to succeed is governed by the law of the nation of the decedent.

The law which governs Adoracion Campos' will is the law of Pennsylvania, U.S.A., which is the national law of the decedent. Although the parties admit that the Pennsylvania law does not provide for legitimes and that all the estate may be given away by the testatrix to a complete stranger, the petitioner argues that such law should not apply because it would be contrary to the sound and established public policy and would run counter to the specific provisions of Philippine law.

It is a settled rule that as regards the intrinsic validity of the provisions of the will, as provided for by Article 16(2) and 1039 of the Civil Code, the national law of the decedent must apply. This is squarely applied in the case of Bellis v Bellis (20 SCRA 358) wherein we ruled:

It is therefore evident that whatever public policy or good customs may be involved in our system of legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For it has specifically chosen to leave, inter alia, the amount of successional rights, to the decedent's national law. Specific provisions must prevail over general ones.

x x x

The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and under the law of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic validity of the provisions of the will and the amount of successional rights are to be determined under Texas law, the Philippine law on legitimes cannot be applied to the testacy of Amos G. Bellis.

x x x

WHEREFORE, the petition for certiorari and prohibition is hereby dismissed for lack of merit.

SO ORDERED.

Melencio-Herrera, Plana, Relova and de la Fuente, JJ., concur. Teehankee, J. (Chairman), no part.

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ACAIN v INTERMEDIATE APPELLATE COURTNo. L-72706, 27 October 1987

155 SCRA 100

Acain resolved once and for all the issue as to whether or not a surviving spouse could be preterited. This issue was not definitively answered in Balanay. In addition, Acain resolved that an adopted child may be preterited. This issue was not resolved in Maninang. The foregoing notwithstanding, the Court did not explain the reason why an adopted child (while given the same rights and obligations as a legitimate child under the provisions of P.D. 603) could be preterited. It must be noted that given the said provisions, the adopted child is not entitled to the right of representation, which is available to a legitimate child. It would seem, however, that with the provisions of the Family Code, specifically on the status of an adopted child, the preterition of an adopted child finds greater support.

Paras, J.:

On May 29, 1984 petitioner Constantino Acain filed in the Regional Trial Court of Cebu City Branch XIII, a petition for the probate of the will of the late Nemesio Acain and for the issuance to the same petitioner of letters testamentary, x x x on the premise that Nemesio Acain died leaving a will in which petitioner and his brothers Antonio, Flores and Jose and his sisters Anita, Concepcion, Quirina and Laura were instituted as heirs. The will allegedly executed by Nemesio Acain on February 17, 1960 was written in Bisaya with a translation in English submitted by petitioner without objection raised by private respondents. x x x On the disposition of the testator's property, the will provided:

THIRD. All my shares that I may receive from our properties, house, lands, and money which I earned jointly with my wife Rosa Diongson shall all be given by me to my brother SEGUNDO ACAIN, Filipino, widower, of legal age and presently residing at 357-C Sanciangko Street, Cebu City. In case my brother Segundo Acain predeceases me, all the money, properties, lands, houses there in Bantayan and here in Cebu City which constitute my share shall be given by me to his children, namely: Anita, Constantino, Concepcion, Quirina, Laura, Flores, Antonio and Jose, all surnamed Acain.

Obviously, Segundo predeceased Nemesio. Thus, it is the children of Segundo who are claiming to be heirs, with Constantino as the petitioner x x x.

After the petition was set for hearing x x x the oppositors (respondents herein Virginia A. Fernandez, a legally adopted daughter of the deceased and the latter's widow, Rosa Diongson vda. de Acain) filed a motion to dismiss on the following grounds: (1) the petitioner has no legal capacity to institute these proceedings; (2) he is merely a universal heir, and (3) the widow and the adopted daughter have been preterited. Said motion was denied by the trial judge.

After the denial of their subsequent motion for reconsideration in the lower court, respondents filed with the Supreme Court a petition for certiorari and prohibition

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with preliminary injunction which was subsequently referred to the Intermediate Appellate Court by Resolution of the Court dated March 11, 1985.

Respondent Intermediate Appellate Court granted private respondents' petition and ordered the trial court to dismiss the petition for the probate of the will of Nemesio Acain in Special Proceedings No. 591-A-CEB.

His motion for reconsideration having been denied, petitioner filed this present petition for the review of respondent court's decision on December 18, 1985. x x x

x x x

Petitioner raises the following issues:

x x x

(B) The authority of the probate courts is limited only to inquiring into the extrinsic validity of the will sought to be probated and it cannot pass upon the intrinsic validity thereof before it is admitted to probate;

(C) The will of Nemesio Acain is valid and must therefore, be admitted to probate. The preterition mentioned in Article 854 of the New Civil Code refers to preterition of "compulsory heirs in the direct line" and does not apply to private respondents who are not compulsory heirs in the direct line; their omission shall not annul the institution of heirs;

x x x

The pivotal issue in this case is whether or not private respondents have been preterited.

x x x

Preterition consists in the omission in the testator's will of the forced heirs or anyone of them either because they are not mentioned therein, or though mentioned, they are neither instituted as heirs nor are expressly disinherited Insofar as the widow is concerned, Article 854 of the Civil Code may not apply as she does not ascend or descend from the testator although she is a compulsory heir. Stated otherwise, even if the surviving spouse is a compulsory heir there is no preterition even if she is omitted from the inheritance for she is not in the direct line. However, the same thing cannot be said of the other respondent Virginia Fernandez, whose legal adoption by the testator has not been questioned by petitioner. Under Article 39 of P.D. No. 603, known as the Child and Youth Welfare Code, adoption gives to the adopted person the same rights and duties as if he were a legitimate child of the adopted and makes the adopted person a legal heir of the adopter. It cannot be denied that she was totally omitted and preterited in the will of the testator and that both adopted child and the widow were deprived of at least their legitime. Neither can it be denied that they were

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not expressly disinherited. Hence, this is a clear case of preterition of the legally adopted child.

Preterition annuls the institution of an heir and annulment throws open to intestate succession the entire inheritance including "la porcion libre (que) no hubiese dispuesto en virtual de legado, mejora o donacion" The only provisions which do not result in intestacy are the legacies and devises made in the will for they should stand valid and respected, except insofar as the legitimes are concerned.

The universal institution of petitioner together with his brothers and sisters to the entire inheritance of the testator results in totally abrogating the will because the nullification of such institution of universal heirs - without any other testamentary disposition in the will - amounts to a declaration that nothing at all was written. Carefully worded and in clear terms, Article 854 of the Civil Code offers no leeway for inferential interpretation. No legacies nor devises having been provided in the will the whole property of the deceased has been left by universal title to petitioner and his brothers and sisters. The effect of annulling the institution of heirs will be, necessarily, the opening of a total intestacy except that proper legacies and devises must, as already stated above, be respected.

x x x

Special Proceedings No. 591-A-CEB is for the probate of a will. As stated by respondent Court, the general rule is that the probate court's authority is limited only to the extrinsic validity of the will, the due execution thereof, the testator's testamentary capacity and the compliance with the requisites or solemnities prescribed by law. The intrinsic validity of the will normally comes only after the Court has declared that the will has been duly authenticated. Said court at this state of the proceedings is not called upon to rule on the intrinsic validity or efficacy of the provisions of the will.

The rule however is not inflexible and absolute. Under exceptional circumstances, the probate court is not powerless to do what the situation constrains it to do and pass upon certain provisions of the will. In Nuguid v Nuguid the oppositors to the probate moved to dismiss on the ground of absolute preterition. The probate court acting on the motion held that the will in question was a complete nullity and dismissed the petition without costs. On appeal, the Supreme Court upheld the decision of the probate court, induced by practical considerations. The Court said:

We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On the contrary, this litigation will be protracted. And for aught that appears in the record, in the event of probate or if the court rejects the will, probability exists that the case will come up once again before us on the same issue of the intrinsic validity or nullity of the will. Result: waste of time, effort, expense, plus added anxiety. These are the practical considerations that induce us to a belief that we might as well meet head-on the issue of the validity of the provisions of the will in question. After all, there exists a justiciable controversy crying for solution.

In Cayetano v Leonidas, supra, one of the issues raised in the motion to

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dismiss the petition deals with the validity of the provisions of the will. Respondent judge allowed the probate of the will. The court held that as on its face the will appeared to have preterited the petitioner, the respondent judge should have denied its probate outright. Where circumstances demand that intrinsic validity of the will is resolved, the probate court should meet the issue.

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

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

x x x

PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and the questioned decision of the respondent Court of Appeals promulgated on August 30, 1985 and its Resolution dated October 23, 1985 are hereby AFFIRMED.

SO ORDERED.

Teehankee (C.J.), Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur.

Melencio-Herrera, J., concurring in the result:

I concur in the result on the basic proposition that preterition in this case was by mistake or inadvertence.

To my mind, an important distinction has to be made as to whether the omission of a forced heir in the Will of a testator is by mistake or inadvertence, or voluntary or intentional. If by mistake or inadvertence, there is true preterition and total

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intestacy results. The reason for this is the "inability to determine how the testator would have distributed his estate if none of the heirs had been omitted or forgotten.

The requisites of preterition are:

1. The heir omitted is a forced heir (in the direct line);

2. The omission is by mistake or thru an oversight;

3. The omission is complete so that the forced heir received nothing in the will.

On the other hand, if the omission is intentional, the effect would be a defective disinheritance covered by Article 918 of the Civil Code in which case the institution is not wholly void by only insofar as it prejudices the legitime of the persons disinherited. Stated otherwise, the nullity is partial unlike in true preterition where the nullity is total.

Preterition is presumed to be only an involuntary omission; that is, that if the testator had known of the existence of the compulsory heir at the time of the execution of the will, he would have instituted such heir. On the other hand, if the testator attempts to disinherit a compulsory heir, the presumption of the law is that he wants such heir to receive as little as possible from his estate.

In the case at bar, there seems to have been a mistake or inadvertence in the omission of the adopted daughter, hence my concurrence in the result that total intestacy ensued.

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SEANGIO v REYESG.R. No. 140372-72, 27 November 2006

508 SCRA 177

Seangio resolves a number of legal questions. First, it confirms that where the sole disposition of a purported will is the disinheritance of a compulsory heir, the disinheritance is considered a property disposition. Therefore, the document is must be considered a will because it conveys property. Second, the failure of the testator to institute an heir or to even mention by name any of the compulsory heir, per se, does not constitute preterition. Third, the Court gave an indication of what could constitute maltreatment which would give an ascendant a ground to disinherit a descendant under Article 919.

Azcuna, J.:

On September 21, 1988, private respondents1 filed a petition for the settlement of the intestate estate of the late Segundo Seangio, docketed as Sp. Proc. No. 98-90870 of the RTC, and praying for the appointment of private respondent Elisa D. Seangio-Santos as special administrator and guardian ad litem of petitioner Dy Yieng Seangio.

Petitioner Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed the petition. They contended that: 1) Dy Yieng is still very healthy and full command of her faculties; 2) the deceased Segundo executed a general power of attorney in favor of Virginia giving her the power to manage and exercise control and supervision over his business in the Philippines; 3) Virginia is the most competent and qualified to serve as the administrator of the estate of Segundo because she is a certified public accountant; and 4) Segundo left a holographic will, dated September 20, 1995, disinheriting one of the private respondents, Alfredo Seangio, for cause. In view of the purported holographic will, petitioners averred that in the event the decedent is found to have left a will, the intestate proceedings are to be automatically suspended and replaced by the proceedings for the probate of the will.

On April 7, 1999, a petition for the probate of the holographic will of Segundo, x x x was filed by petitioners before the RTC. They likewise reiterated that the probate proceedings should take precedence over Sp. Proc. No. 98-90870 because testate proceedings take precedence and enjoy priority over intestate proceedings.

The document that petitioners refer to as Segundo’s holographic will is quoted, as follows:

Kasulatan sa pag-aalis ng mana

Tantunin ng sinoman

1 Alfredo D. Seangio, Alberto D. Seangio, Elisa D. Seangio-Santos, Victor Seangio, Alfonso D. Seangio, Shirley D. Seangio-Lim, Betty D. Seangio-Obas, and James D. Seangio

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Ako si Segundo Seangio, Filipino may asawa naninirahan sa 465-A Flores St. Ermita, Manila, at nagtataglay ng maliwanag na pag-iisip at disposisyon ay tahasan at hayagan inaalisan ko ng lahat at anumang mana ang panganay kong anak na si Alfredo Seangio dahil siya ay nagging lapastangan sa akin at isang beses siya ay nagsalita ng masama sa harapan ko at mga kapatid niya na si Virginia Seangio labis kong ikinasama ng loob at sasabe rin ni Alfredo s akin ako nasa ibabaw ngayon ngunit darating ang araw na nasa ilalim sia at siya nasa ibabaw.

Labis king ikinasama ng loob ko ang gamit in Alfredo ng akin pangalan para makapagutang na kuarta siya at kanya asawa na si Merna de los Reyes sa China Banking Corporation na million pesos at hindi ng babayad at hindi ng babayad ito ay nagdulot sa aking ng malaking kahihiya sa mga may-ari at stockholders ng China Banking.

At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na mga customer ng Travel Center of the Philippines na pinangasiwaan ko at ng anak ko si Virginia.

Dito ako nagalit din kaya gayon ayoko na bilangin si Alfredo ng anak ko at hayanan kong inaalisan ng lahat at anomang mana na si Alfredo at si Alfredo Seangio ay hindi do siya anak at hindi sia makoha mana.

Nilagdaan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng Manila sa harap ng tatlong saksi.

(signed)Segundo Seangio

Nilagdaan sa harap namin

(signed) (signed) Dy Yieng Seangio Ikalawang Saksi

(signed)Ikatlong Saksi

On May 29, 1999, upon petitioner’s motion, SP. Proc. No. 98-90870 and Sp. Proc. No. 99-93396 were consolidated.

On July 1, 1999, private respondents moved for the dismissal of the probate proceedings primarily on the ground that the document purporting to be the holographic will of Segundo does not contain any disposition of the estate of the deceased and thus does not meet the definition of a will under Article 783 of the Civil Code. According to private respondents, the will only shows an alleged act of disinheritance by the decedent of his eldest son, Alfredo, and nothing else; that all other compulsory heirs were not named or instituted as heir, devisee or legatee, hence there is preterition which would result to intestacy. Such being the case, private respondents maintained that while procedurally the court is called upon to rule only on the extrinsic validity of the will, it is not barred from delving into the intrinsic validity of

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the same, and ordering the dismissal of the petition for probate when on the face of the will it is clear that it contains no testamentary disposition of the property of the decedent.

Petitioners filed their opposition to the motion to dismiss contending that: 1) generally, the authority of the probate court is limited only to a determination of the extrinsic validity of the will; 2) private respondents question the intrinsic and not the extrinsic validity of the will; 3) disinheritance constitutes a disposition of the estate of the decedent; and 4) the rule on preterition does not apply because Segundo’s will does not constitute a universal heir or heirs to the exclusion of one or more compulsory heirs.

On August 10, 1999, the RTC issued its assailed order dismissing the petition for probate.

“A perusal of the document termed as “will” by oppositors/petitioners Dy Yieng Seangio, et al., clearly shows that there is preterition, as the only heirs mentioned thereat are Alfredo and Virginia. [T]he other heirs being omitted, Article 854 of the New Civil Code thus applies. However, insofar as the widow Dy Yieng Seangio is concerned, Article 854 does not apply, she not being a compulsory heir in the direct line.

As such, this Court is bound to dismiss this petition for to do otherwise would amount to an abuse of discretion. The Supreme Court in the case of Acain v Intermediate Appellate Court [155 SCRA 100 (1987)] has made it clear: “for …. Respondents to have tolerated the probate of the will and allowed the case to progress when, on its face, the will appears to be intrinsically void …. Would have been an exercise in futility. It would have meant a waste of time, effort and expense, plus added futility. The trial court could have denied its probate outright or could have passed upon the intrinsic validity of the testamentary provisions before the extrinsic validity of the will was resolved.”

x x x

Petitioners argue as follows:

x x x

Second, the holographic will does not contain any institution of an heir, but rather its title clearly states, Kasulatan ng Pag-Aalis ng Mana, simply contains a disinheritance of a compulsory heir. Thus, there is no preterition in the decedent’s will and the holographic will on its face is not intrinsically void.

Third, the testator intended all his compulsory heirs, petitioners and private respondents alike, with the sole exception of Alfredo, to inherit his estate. None of the compulsory heirs in the direct line of Segundo were preterited in the holographic will since there was no institution of an heir.

x x x

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The purported holographic will of Segundo that was presented by petitioners was dated, signed and written by him in his own handwriting. Except on the ground of preterition, private respondents did not raise any issue as regards the authenticity of the document.

The document, entitled Kasulatan ng Pag-aalis ng Mana, unmistakably showed Segundo’s intention of excluding his eldest son, Alfredo, as an heir to his estate for the reasons that he cited therein. In fact, Alfredo was disinherited by Segundo.

For disinheritance to be valid, Article 916 of the Civil Code requires that the same must be effected through a will wherein the legal cause therefor shall be specified. With regard to the reasons for the disinheritance that were stated by Segundo in his document, the Court believes that the incidents, taken as a whole, can be considered a form of maltreatment of Segundo by his son, Alfredo, and that the matter presents a sufficient cause for the disinheritance of a child or descendant under Article 919 of the Civil Code.

x x x

Now, the critical issue to be determined is whether the document executed by Segundo can be considered as a holographic will.

A holographic will, as provided in Article 810 of the Civil Code, must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form and may be made in or out of the Philippines, and need not be witnessed.

Segundo’s document, although it may initially come across as a mere disinheritance instrument, conforms to the formalities of a holographic will prescribed by law. It is written, dated and signed by the hand of Segundo himself. An intent to dispose mortis causa can be clearly deduced from the terms of the instrument, and while it does not make an affirmative disposition of the latter’s property, the disinheritance of Alfredo, nonetheless, is an act of disposition in itself. In other words, the disinheritance results in the disposition of the property of the testator Segundo in favor of those who would succeed him in the absence of Alfredo.

Moreover, it is a fundamental principle that the intent or the will of the testator, expressed in the form and within the limits prescribed by law, must be recognized as the supreme law in succession. All rules of construction are designed to ascertain and give effect to that intention. It is only when the intention of the testator is contrary to law, morals, or public policy that it cannot be given effect.

Holographic wills, therefore, being usually prepared by one who is not learned in the law, as illustrated in the present case, should be construed more liberally than the ones drawn by an expert, taking into account the circumstances surrounding the execution of the instrument and the intention of the testator. In this regard, the Court is convinced that the document, even it captioned Kasulatan ng Pag-aalis ng Mana, was

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intended by Segundo to be his last testamentary act and was executed by him in accordance with law in the form of a holographic will. Unless the will is probated, the disinheritance cannot be given effect.

With regard to the issue of preterition, the Court believes that the compulsory heirs in the direct line were not preterited in the will. It was, in the Court’s opinion, Segundo’s last expression to bequeath his estate to all his compulsory heirs, with the sole exception of Alfredo. Also, Segundo did not institute an heir to the exclusion of his other compulsory heirs. The mere mention of the name of one of the petitioners, Virginia, in the document did not operate to institute her as the universal heir. Her name was included plainly as a witness to an altercation between Segundo and his son Alfredo.

x x x

In view of the foregoing, the trial court therefore should have allowed the holographic will to be probated. It is settled that testate proceedings for the settlement of the estate of the decedent takes precedence over intestate proceedings for the same purpose.

WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court of Manila, Branch 21, dated August 10, 1999 and October 14, 1999, are set aside. Respondent judge is directed to reinstate and hear SP. Proc. No. 99-93396 for the allowance of the holographic will of Segundo Seangio. The intestate case or SP. Proc. No. 98090870 is hereby suspended until the termination of the aforesaid testate proceedings.

SO ORDERED.

Puno (Chairperson), Sandoval-Gutierrez, Corona and Garcia, JJ., concur.

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RAMIREZ v RAMIREZNo. L-27952, 15 February 1982

111 SCRA 704

Some commentators of the Civil Code have expressed the opinion that a fideicommissary substitution is in fact a disguised case of successive institutions. This is because both the first and the second heirs inherit from the testator and not from one another. The beneficial use and possession of the inheritance are first given to the first heir for a lifetime at most, and thereafter transferred to the second heir. The law requires that the first and second heirs must be "one degree apart" from each other. This limitation became the object of two divergent views. One view holds that the "one degree" apart rule refers to one transfer. Ramirez settled the controversy by upholding the more restrictive view.

In an obiter, the Court opined that the constitutional prohibition against alien ownership of land does not permit an alien to acquire the same by testamentary succession. Would such a ruling apply to a case where the foreign beneficiary is both a testamentary and a compulsory heir?

Abad Santos, J.:

x x x

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 on July 27, 1965. Maria Luisa Palacios was appointed administratrix. In due time she submitted an inventory of the estate as follows:

INVENTARIOUna sexta parte (1/6) pro-indivisa de un terreno, con sus mejoras yedificaciones, situando en la Ecolta Manila

P 500,000

Una sexta parte (1/6) pro-indivisa de dos parcelas de terreno situadas enAntipolo, Rizal

658.34

Cuatrocientos noventa y uno (491) acciones de la Central Azucarera de laCarlota a P17.00 por accion

8,347.00

Diez mil ochocientos seiz (10,806) acciones de la CentralLuzon Milling Co. disuelta y en liquidacion, a P-.15 por accion

1,620.00

Cuenta de Ahorros en el Philippine Trust Company 2,350.73TOTAL 512,976.97MENOS:Deuda al banco de las Islas Filipinas, garantizada con prenda de lasacciones de La Carlota

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, ambos menores de edad, residentes en Manila. I.F., calle Wright, No. 1818, Malate, hijos de su

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sobrino D. Jose Ma. Ramirez, con sustitucion vulgar a favor de sus respectivos descendientes, y en su defecto, con sustitucion vulgar reciproca entre ambos.

El precendente 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 due crecion del querido padre del otorgante y por ser aquellos continuadores del appelido 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, Siene, Francia, con sustitucion vulgar y 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 Wrobleski, con sustitucion vulgar y fieicomisaria, 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 en cuanto 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 fideicomisarias precedentemente ordinadas, las usufructuarias nombradas con los nudo propietarios, podran en cualquier momento vender a tercero los bienes objeto delegado, sin intervencion alguna de los titulares fideicomisarios.

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 propiedad." 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 Wande de Wrobleski with respect to the widow's usufruct and in favor of Juan Pablo Jankowski and Horace 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 fideicommisary 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 de 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

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between the widow Marcelle, and the appellants, violates the testator's express will to give the 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 appellants do not question the legality of giving Marcelle one-half of the estate in full ownership. They admit that the testator's dispositions impaired the widow's legitime. Indeed, under article 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 appointment 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." [III 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 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

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a second heir the whole or part of the 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 the 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 sustitucion vulgar reciproca 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 D. 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 Article 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 transmission 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

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generation or degree from the fiduciary.(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."

3. Usufruct of Wanda.

The appellants claim that the usufruct over real properties of the estate in favor of Wanda is void because it violates the constitutional prohibition against the acquisition of lands by aliens.

The 1935 Constitution which is controlling provides as follows:

SEC. 5 Save in case 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:

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.

The distribution herein ordered supersedes that of the court a quo. No pronouncement as to costs.

Barredo (Chairman), Concepcion, Jr., de Castro, Ericta, and Escolin, JJ., concur. Aquino, J. took no part.

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VDA. DE MAPA v COURT OF APPEALSNo. L-38972, 28 September 1987

154 SCRA 294

Mapa resolved a dispute between two sides of a family with respect to the interpretation of a testamentary disposition obligating the surviving husband to deliver to the nephews and nieces (both on the side of the deceased and on his side) the residue of the entire estate. Claimants advance the theory that the obligation of the surviving husband constituted either (a) an express trust, or (b) an institution subject to a fideicommissary substitution. It will be noted that if the testamentary disposition were to be treated as a fideicommissary substitution, the substitution would have been void since the second heirs are not related to the first heir within the first degree by consanguinity, as required in Ramirez v Ramirez, infra. If the substitution were to be declared void, the surviving husband would have inherited the residue of the estate free and clear of any condition or encumbrance. Consequently, upon his demise, the nephews and nieces coming from the side of the deceased wife would be excluded from participating in the distribution of the properties. It is worthwhile noting that the properties in question were largely from the estate of the deceased wife.

If equity were to be taken into account, the decision of the Supreme Court would seem to be correct. However, the decision fail to argue convincingly that the testatrix indeed intended to constitute a trust.

Fernan, J.:

On January 16, 1965, petitioners Paz Garcia vda. de Mapa, et al., instituted Civil Case 59566 before the then Court of First Instance of Manila to recover from the estate of the late Ludovico Hidrosollo, then subject of Special Proceedings No. 52229 of the same court, the properties left by the late Concepcion Mapa de Hidrosollo. They claimed that the deceased Concepcion Mapa de Hidrosollo, in her last will and testament dated June 2, 1951 and admitted to probate in Special Proceedings No. 46015, instituted Ludovico Hidrosollo as universal heir to the residue of her estate with the obligation as trustee to hold the same in trust for petitioners herein who are nephews and nieces of the deceased Concepcion Mapa de Hidrosollo and for respondents Luis, Teodoro, Victorina, Corazon and Violeta, x x x Rosario and Magdalena, all surnamed Hidrosollo, who are nephews and nieces of Ludovico Hidrosollo; that Ludovico, however, died without fulfilling the obligation so that the estate of Concepcion formed part of the estate of Ludovico. They prayed in the alternative that judgment be rendered either (a) declaring a trust to have been created in their favor and their co-beneficiaries over the residue of the estate of Concepcion Mapa de Hidrosollo and ordering therein defendants Luis and Teodoro Hidrosollo, as administrators of the estate of Ludovico Hidrosollo, to deliver to them 6/13 of the said properties; or (b) declaring the institution of Ludovico Hidrosollo as universal heir with a provision for fideicommissary substitution in their favor and their co-beneficiaries as null and void, declaring the residue of the estate of Concepcion Mapa de Hidrosollo to have been subject to intestate succession, clearing them to be the sole heirs to said residue and ordering therein defendants Luis and Teodoro Hidrosollo to turn over to

349

them the said properties.Respondents, in their Answer, denied the existence of a trust and alleged that

Ludovico Hidrosollo, being the surviving spouse of the deceased Concepcion Mapa de Hidrosollo, became the latter's universal heir when she died without descendants or ascendants; that as such universal heir, Ludovico stepped into the rights, title and claims of the deceased Concepcion Mapa de Hidrosollo, so that the controverted properties became part of his own estate subject to settlement in Special Proceedings No. 52229. They further claimed that Civil Case No. 59566 was barred by the order of the same court sitting as a probate court in Special Proceedings No. 52229 which denied petitioners' motion for intervention, and that petitioners, in having instituted Civil Case No. 59566 has forfeited any benefits under the will.

In disposing the same, the lower court ruled that a trust was created over the properties of Concepcion Mapa de Hidrosollo in favor of petitioners and respondents; that in resisting petitioners' claim, however, respondents had forfeited their rights thereto; and that the denial of petitioners' motion to intervene in Special Proceedings No. 52229 did not deprive the petitioners of their right to institute a separate action to recover what pertains to them in their own right. Thus, the lower court ordered respondents Luis and Teodoro Hidrosollo or whoever of the rest of therein defendants had disposition of the properties, to reconvey the same in favor of petitioners, to render an accounting of the income of said properties and to deliver to petitioners the net proceeds of such income.

Respondents moved for a reconsideration of the decision, but were denied the relief sought. Their appeal to the Court of Appeals proved fruitful as the appellate court reversed the decision of the lower court and ruled instead that no trust nor fideicommissary substitution was created in Concepcion Mapa de Hidrosollo's will and that petitioners' claim was barred by a final judgment, i.e., the order denying their motion to intervene in Special Proceedings No. 5229 from which no appeal was taken.

Hence this present recourse, petitioners maintaining that the will of Concepcion Mapa de Hidrosollo created a trust in their favor, not a fideicommissary substitution, and that the denial of their motion in Special Proceedings No. 52229 did not constitute a bar to Civil Case No. 59566.

We find both contentions meritorious.

A careful perusal and scrutiny of the pertinent provisions of Concepcion Mapa de Hidrosollo's will reveal that she intended to create a trust in favor of both petitioners and private respondents. These provisions read:

x x x

Thus, under paragraph 8 of the will, Ludovico Hidrosollo was instituted as sole and universal heir to the rest of the properties not covered by the legacies in the preceding paragraphs. Under paragraph 9, however, said Ludovico Hidrosollo was charged (encargo) with the obligation to deliver the rest of the estate in equal parts to

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the Mapa, Salazar and Hidrosollo nephews and nieces, who, as beneficiaries, were directed to deliver annually to one Salvador Genova, during his lifetime, 12 cavans of palay on the condition that the latter assist Luis Hidrosollo in each harvest. Said beneficiaries were likewise required to allow said Salvador Genova to maintain his house on a parcel of land situated at Ilaud, Municipality of Dumarao, without payment of any compensation.

In paragraph 11 of the same will, the testatrix expressly provided that any obligations which her husband might incur after her death, shall be charged against the share corresponding to the Hidrosollo nephews and nieces, and in no case shall the participation of her own nephews and nieces be charged with said obligations. She likewise expressed the wish that all her properties should always remain in co-ownership among her beneficiaries, who should abstain from selling or encumbering the same in any manner whatsoever (par 13) and that the same be administered jointly by Ignacio Salazar and Luis Hidrosollo, or in case of their inability, by a nephew or niece from each of the two groups (par 15).

Although the word "trust" itself does not appear in the will, the testatrix's intent to create one is nonetheless clearly demonstrated by the stipulations in her will. In designating her husband Ludovico Hidrosollo as universal and sole heir with the obligation to deliver the properties to petitioners and private respondents, she intended that the legal title should vest in him, and in significantly referring to petitioners and private respondents as "beneficiarios", she intended that the beneficial or equitable interest to these properties should repose in them. To our mind, these designations, coupled with the other provisions for co-ownership and joint administration of the properties, as well as the other conditions imposed by the testatrix effectively created a trust in favor of the parties over the properties adverted to in the will. "No particular words are required for the creation of an express trust, it being sufficient that a trust is clearly intended."

However, we must not lose sight of the fact that as the surviving spouse of the testatrix, Ludovico Hidrosollo was entitled to a legitime of one-half (1/2) of her hereditary estate. As that portion is reserved by law for the compulsory heirs, no burden, encumbrance, condition or substitution of any kind whatsoever may be imposed upon the legitime by the testator. The trust created by Concepcion Mapa de should therefore be, as it is hereby declared to be effective only on the free portion of her estate, i.e., that portion not covered by Ludovico Hidrosollo's legitime.

WHEREFORE, the decision of the Court of Appeals in CA-G.R. No. 40448-A is hereby reversed. Private respondents Luis and Teodoro Hidrosollo or their successors as administrators of the estate of Ludovico Hidrosollo are hereby ordered to deliver to petitioners their lawful shares in the trust constituted over the free portion of the estate of Concepcion Mapa. Said Luis and Teodoro Hidrosollo or their successors are further ordered to render an accounting of the income of the properties pertaining to petitioners and to deliver to the latter the net proceeds of such income. No pronouncement as to costs.

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Gutierrez, Jr., Feliciano, Bidin, and Cortes, JJ., concur.

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CRISOLOGO v SINGSONNo. L-13876, 28 February 1962

4 SCRA 491

Crisologo stresses that the essence of a fideicommissary substitution is the imposition of an obligation on the part of the first heir to preserve and to transmit the property to the second heir upon the former's death or upon the happening of a particular event. The obligation to preserve and transmit must be done in an expressed manner either by calling the substitution fideicommissary, or by imposing upon the first heir the absolute obligation to preserve and deliver the inheritance to the second heir. In the absence of either, the substitution would at best be considered simple or vulgar.

Two points raised in the decision should be noted. First, it inferred that if Consolacion were instituted subject to a fideicommissary substitution, her rights would be limited to that of a usufructuary. This is error, because the first heir in a fideicommissary substitution acquires title to the property, subject merely to the resolutory term of the substitution. Second, while the court ruled that the substitution is simple, it stated in the penultimate paragraph that the substitution shall take place whether the death of Consolacion takes place before or after the death of the testatrix. There seems to be something wrong with the statement. Substitution was premised precisely upon the death of Consolacion, and for no other cause. Therefore, if Consolacion survives the testatrix, as in fact she did survive, then the substitution becomes academic. To allow the substitution even if Consolacion were to survive the testatrix would be to give effect to a fideicommissary substitution, which the same court overturned. The resulting conclusion would be in contradiction with the finding that no fideicommissary substitution was intended by the testatrix.

Dizon, J.:

Action for partition commenced by the spouses Consolacion Florentino and Francisco Crisologo against Manuel Singson in connection with a residential lot located at Plaridel Street, Vigan, Ilocos Sur, with an area of approximately 193 square meters, and the improvements existing thereon, covered by Tax Declaration 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 Dona 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 Proceedings No. 453; that plaintiffs had made demands for the partition of said property, but defendants refused to accede thereto, thus compelling them to bring action.

Defendants' defense was that Consolacion Florentino was a mere usufructuary of, and not the 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 issues thus posed, the lower court rendered judgment as

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follows:

1. Declaring that the plaintiff is a co-owner pro-indiviso with the defendants 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;

x x x

From the above judgment, defendant Singson appealed.

It is admitted that Dona 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. 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 Consolacion, all surnamed Florentino.

Clause IX of her will reads as follows:

NOVENO - Ordeno que se de a mis nieta por parte de mis 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 materiales 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 apellido Kairuz. Pero, si falleciere antes o despues que yo mi citada nieta, esta propiedad se dara por dos partes iguales entre mis tres hermanos, Evaristo, Manuel y Dionisio, o a sus herederos forzosos en el case de que alguno de ellas muriere antes. x x x."

The issue to be decided is whether the testamentary disposition above-quoted provided for what is called sustitucion vulgar or for a sustitucion fideicomisaria. The 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. x x x."

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

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obligation, in the part of the latter, to deliver the same to another person, totally or partially, upon the occurrence of a particular event.

It is clear that the particular testamentary clause under consideration provides for a substitution of the heir named in 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' 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 sustitucion 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.

It seems to be of the essence of a fideicommisary 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. x x x.

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 Dona Leona Singson, established a mere sustitucion vulgar, the substitution of Consolacion Florentino by the brothers of the testatrix to be effective or to take place upon the death of the former, whether it happens before or after that of the testatrix.

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

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes and de Leon, JJ., concur.

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RODRIGUEZ v COURT OF APPEALSNo. L-287334, 28 March 1969

27 SCRA 546

A testamentary disposition prohibiting the alienation of the hereditary estate for a period exceeding twenty years is void. However, the Court has ruled that the nullity refers not to the prohibition to alienate, but to the prohibition in excess of the first twenty years.

Justice Fernando made a cryptic statement in the penultimate paragraph of the decision. He opined that the intestate heirs may never even have the right to challenge the question provision of the will which created the trust. Is he suggesting that the said intestate heirs (first cousin of the testatrix) must survive the twenty year period in order to have the personality, at that time, to challenge the trust? If so, is there a suggestion that the successional right of the intestate heirs would ripen only if they survive the period? This point is important for two reasons: (a) the first cousins are relatives of the testatrix within the fifth degree, and beyond which relationship with the testatrix is no longer recognized by law; (b) the said first cousins, assuming they do not survive the twenty-year period, cannot, under the present law, be represented by their own respective descendants.

Fernando, J.:

A will is the testator speaking after death. The law listens and yields obedience, unless in the preparation thereof or in the disposition made therein there is a failure to follow a legal norm. In the present suit, there was none as to the formalities required, the will in question having been probated on September 23, 1960. As to its intrinsic validity, there apparently was none either as shown by the project of partition having been approved by the lower court, again, without opposition.

As more specifically set forth in the decision of the Court of Appeals of January 18, 1967, the reconsideration of which after about a year, to be more precise, on January 8, 1968, led to this petition for certiorari: "It appears from the record that Doña Margarita Rodriguez died in the City of Manila on July 19, 1960, leaving a last will and testament under date of September 30, 1951 and that said last will and testament was legalized by virtue of the resolution or order of the Court of First Instance of Manila under date of September 23, 1960, without the appellants' opposition in Special Proceeding No. 3845, hence the extrinsic validity of the will was substantially not in question. On August 27, 1962, the executor of the last will and testament of the late Doña Margarita Rodriguez presented a project of partition and the same was approved by the Court of First Instance of Manila, again without opposition of the appellants. Hence, the intrinsic validity of the will could never be again questioned and raised as issue in the trusteeship proceedings No. 51872 of the same court.

One would expect, therefore, that the aforesaid decision of the Court of Appeals would write finis to this litigation. Unfortunately, it was not so. It ought not to have been the case, for, as admitted, the deceased, to quote from the language of the

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January 18, 1967 decision of the Court of Appeals, "at the time of her death left no compulsory or forced heirs and, consequently, (was) free to dispose of her properties even to strangers at will as provided in her will." It was likewise noted therein that the testatrix created a trust which was objected to by private respondents, who claimed to be first cousins of the deceased. Such an objection was overruled by the lower court which granted letters of trusteeship to petitioners, who were the executors under the will. Such an order of the lower court was appealed by respondent to the Court of Appeals, which, in the original decision of January 18, 1967, affirmed the action taken by the Court of First Instance.

A motion for reconsideration filed by private respondents resulted in a resolution of January 8, 1968, which set aside its previous decision of January 18, 1967 and modified the judgment appealed from insofar as the validity of the provision of clause 10 of the will creating the trusteeship was concerned. The disputed clause reads thus:

[Clausula Decima o Pang Sampu]. Ipinaguutos ko na ang mga pag-aaring nasasabi sa Clausulang ito ay pangangasiwaan sa habang panahon, at ito nga ang ipagbubukas ng "Fideicomiso" sa Juzgado sa pagkatapos na maayos ang naiwanan kong pag-aari. Ang pangangasiwaang pag-aari ay ang mga sumusunod: x x x. Ang lahat ng pag-aaring nasasabi sa Clausulang ito (hindi kasama ang "generator" at "automobile") hindi maisasanla o maipagbibili kailan man, maliban sa pag-aaring nasa Quezon Boulevard, Maynila, na maaring isanla kung walang pondo na gagamitin sa ipagpapaigi o ipagpapagawa ng panibago at alinsunod sa kaayusang hinihingi ng panahon.

In the resolution setting aside the original decision of January 18, 1967, the Court of Appeals held that the above "perpetual prohibition to alienate" the property mentioned, constitutes a clear violation of Article 867 and Article 870 of the Civil Code. It was further stated in the aforesaid resolution that the Court of Appeals did arrive "at the considered view that the trust in question is a nullity for being in violation of the aforestated rules (against perpetuities and the limitation regarding the inalienability of the hereditary estate)." There being no institution of heirs as regards the properties covered by the trust, the Court of Appeals held that "there should be intestate succession concerning the same, with the nearest relative of the deceased entitled to inherit the properties in accordance with the law on intestacy. The case should, therefore, be remanded to the lower court." Hence this petition for certiorari to review the aforesaid resolution of the Court of Appeals.

The validity of the above clause was not passed upon in the decision of January 18, 1967 of the Court of Appeals; rather, it was assumed. The view that then prevailed was that the approval of the project of partition sufficed to dispose of that question. The challenged resolution of January 8, 1968 betrayed a change of heart of the Court of Appeals. It explained why:

The contention of [petitioner] that there had already been a project of partition approved by the lower court [which] operates as a waiver on the part of the [respondents] to raise the issue of the invalidity of the questioned provision of

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the will which We have sustained in our decision, seems to be not well taken. We have discovered from the records that the properties involved in this case have not been disposed of as yet and are still within the reach of the probate court. The necessary procedure, therefore, in accordance with the law as delineated in the above discussion, should be observed. The order of the lower court granting the petition for the formation of the trust in question should be annulled as being in violation of the rules against perpetuities and the limitation on the prohibition for the alienation of the property left by the deceased.

We will not deviate from the approach thus taken by the Court of Appeals in the challenged resolution of January 8, 1968, but we differ in our conclusion. We find the clause, at least insofar as the first twenty-year period is concerned, in accordance with the Civil Code provision. Accordingly, we find for petitioners and reverse the Court of Appeals.

The validity of the clause in question if interpreted to conform to the controlling legal norm prescribed by the Civil Code cannot be assailed. If the January 18, 1967 decision of the Court of Appeals were to be modified, it is only in the above sense. The reconsideration, as was done in the challenged resolution, which would have the effect of partial intestacy, was uncalled for.

It does not admit of doubt that in the disputed clause the testatrix did make clear her purpose not to mortgage or to sell forever more (kailan man) certain properties left by her. There would seem then some justification for the Court of Appeals in the challenged resolution to deny force and effect to such a wish considering that "a perpetual prohibition to alienate" is by the Civil Code forbidden. The more controlling provision, however, as already made mention of is supplied by Article 870. Its terms are clear. "The dispositions of the testator declaring all or part of the estate inalienable for more than twenty years are void."

The codal provision does not need any interpretation. It speaks categorically. What is declared void is the testamentary disposition prohibiting alienation after the twenty-year period. In the interim, such a provision does not suffer from the vice of invalidity. It cannot be stricken down. Time and time again, we have said, and we now repeat, that when a legal provision is clear and to the point, there is no room for interpretation. It must be applied according to its literal terms.

Even with the purpose that the testatrix had in mind were not as unequivocal, still the same conclusion emerged. There is no room for intestacy as would be the effect if the challenged resolution of January 8, 1968 were not set aside. The wishes of the testatrix constitute the law. Her will must be given effect. This is so even if there could be an element of uncertainty insofar as the ascertainment thereof is concerned. In the language of a Civil Code provision:

If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the disposition is to be operative shall be preferred.

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Nor is this all. A later article of the Civil Code equally calls for observance. Thus:

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.

The net result would be to reaffirm the conclusion reached that the challenged resolution of January 8, 1968 is objectionable, in view of its lack of fidelity to the controlling legal norm.

In no other way can there be deference paid to what the testator had in mind. This Court so emphatically expressed it in a decision rendered more than sixty years ago. Thus:

Respect for the will of the testator as expressed in his last testamentary disposition, constitutes the principal basis of the rules which the law prescribed for the correct interpretation of all of the clauses of the will; the words and provisions therein written must be plainly construed in order to avoid a violation of his intentions and real purpose. The will of the testator clearly and explicitly stated must be respected and complied with as an inviolable law among the parties in interest. Such is the doctrine established by the supreme court of Spain, constantly maintained in a great number of decisions, among which are those of March 24, 1863, April 28, 1882, and December 16, 1903.

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. Thus:

Where the testator's intention is manifest from the context of the will and surrounding circumstances, but is obscured by inapt and inaccurate modes of expression, the language will be subordinated to the intention, and in order to give effect to such intention, as far as possible, the court may depart from the strict wording and read a word or phrase in a sense different from that which is ordinarily attributed to it, and for such purpose may mould or change the language of the will, such as restricting its application or supplying omitted words or phrases.

A more recent reiteration of such an attitude is found in an opinion by former Chief Justice Paras. Thus:

As a closing observation, it is not for us to discover the motives of Oliva Villapana in leaving her properties to the person named in the will, and omitting therefrom the oppositors-appellees. Suffice it to state that the trial court itself found the will to have been executed free from falsification, fraud, trickery or undue influence, with Oliva having testamentary capacity; and in such a situation it becomes our duty to give expression to her will.

What further fortifies the view taken by us is the admitted fact, as was

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expressed in the January 18, 1967 decision of the Court of Appeals that at the time of her death the deceased "left no compulsory heirs or forced heirs and, consequently, free to dispose of her properties even to strangers x x x as provided in her will." That is what she did and petitioners have no valid cause for complaint, at least not one cognizable in a court of justice.

As we had occasion to state: "Though it might appear right that Amado Clemente should receive something from the estate because he, together with Ariston Bustamante, has been raised by the testatrix, and both are her relatives, nevertheless it would be venturesome for us to advance our own idea of a just distribution of the property in the face of a different mode of disposition so clearly expressed by the testatrix on the later will. As she had no forcible heirs, she was absolutely free to give her estate to whomsoever she chose, subject of course to the payment of her debts. It would be a dangerous precedent to strain the interpretation of a will in order to effect what the court believes to be an equitable decision of the estate of a deceased person. The only function of the courts in these cases is to carry out the intention of the deceased as manifested in the will. Once that intention has been determined through a careful reading of the will or wills, and provided the law on legitimes has not been violated, it is beyond the pale of judicial cognizance to inquire into the fairness or unfairness of any devise or bequest. It might be said that it is hard to understand how, in a temporary anger at Amando Clemente, the testatrix would entirely cut him off from the inheritance. We should not, however, sit in judgment upon her motives and sentiments, first because, as already stated, nothing in the law restrained her from disposing of her property in any manner she desired, and secondly, because there are no adequate means of ascertaining the inward processes of her conscience. She was the sole judge of her own attitude toward those who expected her bounty."

Nothing can be clearer, therefore, than that petitioners could not challenge the provision in question. It had no right to vindicate. Such a right may never arise. The twenty-year period is still with us. What would transpire thereafter is still locked up in the inscrutable future, beyond the power of mere mortals to foretell. At any rate, we cannot anticipate. Nor should we. We do not possess the power either of conferring a cause of action to a party when, under the circumstances disclosed, it had none.

WHEREFORE, the resolution of January 18, 1968 of the Court of Appeals is set aside, thus leaving in full force and effect its decision of January 18, 1967, which affirmed the lower court order of May 11, 1964. With costs against private respondents.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Teehankee, and Barredo, JJ., concur. Capistrano, J., did not take part.

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RABADILLA v COURT OF APPEALSG.R. No. 113725, 29 June 2000

334 SCRA 522

Rabadilla distinguished between a conditional institution and a modal institution, It also discussed the various forms of substitution of heirs.

Justice Purisima concluded that in case of doubt, the institution must be deemed modal and not conditional. Following his discussion, he noted that while a modal institution obliges, it does not suspend the effectivity of the institution. On the other hand, a conditional institution suspends the efficacy of the institution, although it does not impose any obligation on the instituted heir.

One question that should probably be asked is: what happens to the mortgage in favor of PNB and RPB upon the cancellation of the title of the property in the names of the heirs of Dr. Rabadilla? If the mortgage is to be honored, the heirs of Aleja Belleza will receive the property subject to the encumbrance. On the other hand, if the mortgage is to be cancelled, PNB and RBP will be prejudiced.

Purisima, J.:

In a codicil appended to the Last Will and Testament of testatrix Aleja Belleza, Dr. Jorge Rabadilla, predecessor-in-interest of the herein petitioner Johnny S. Rabadilla, was instituted as a devisee of 511,855 square meters of that parcel of land surveyed as Lot No. 1392 of the Bacolod Cadastre. The said Codicil, which was duly probated and admitted x x x contained the following provisions:

FIRST

I give, leave and bequeath the following property owned by me to Dr. Jorge Rabadilla resident of 141 P. Villanueva, Pasay City:

(a) Lot No. 1392 of the Bacolod Cadastre covered by Transfer Certificate of title No. RT-4002 (10942) x x x.

(b) That should Jorge Rabadilla die ahead of me, the aforementioned property and the rights which I shall set forth hereinbelow, shall be inherited and acknowledged by the children and spouse of Jorge Rabadilla.

x x x

FOURTH

(a) It is also my command, in this my addition (Codicil), that should I die and Jorge Rabadilla shall have already received the ownership of the said Lot No. 1392 x x x Jorge Rabadilla shall have the obligation until he dies, every year to give to Maria Marlina Coscolluela y Belleza, Seventy (75) (sic) piculs of Export sugar and Twenty-five (25) piculs of Domestic sugar, until the said Maria Marlina Coscolluela y Belleza dies.

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FIFTH

(a) Should Jorge Rabadilla die, his heirs to whom he shall give Lot No. 1392 x x x shall have the obligation to still give yearly, the sugar specified in the Fourth Paragraph of this testament, to Maria Marlina Coscolluela y Belleza on the month of December of each year.

SIXTH

I command x x x that the Lot No. 1392, in the event that the one to whom I have left and bequeathed, and his heirs shall later sell, lease, mortgage this Lot, the buyer, lessee, mortgagee, shall have also the obligation to respect and deliver yearly ONE HUNDRED (100) piculs of sugar to Maria Marlina Coscolluela y Belleza, on each month of December, SEVENTY FIVE (75) piculs of Export and TWENTY FIVE (25) piculs of Domestic sugar, until Maria Marlina shall die, lastly should the buyer, lessee or the mortgagee of this lot, not have respected my command in this my addition (Codicil), Maria Marlina Coscolluela y Belleza, shall immediately seize this Lot No. 1392 from my heir and the latter’s heirs, and shall turn it over to my near descendants, (sic) and the latter shall then have the obligation to give the ONE HUNDRED (100) piculs of sugar until Maria Marlina shall die. I further command in this my addition (Codicil) that my heir and his heirs of this Lot No. 1392, that they will obey and follow that should they decide to sell, lease, mortgage, they cannot negotiate with others than my near descendants and my sister.

Pursuant to the same Codicil, Lot No. 1392 was transferred to the deceased Dr. Jorge Rabadilla, and Transfer Certificate of Title No. 44498 thereto issued in this name.

Dr. Jorge Rabadilla died in 1983 and was survived by his wife Rufina and children Johnny (petitioner), Aurora, Ofelia and Zenaida, all surnamed Rabadilla.

On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos brought a complaint x x x in Bacolod City against the above-mentioned heirs of Dr. Jorge Rabadilla, to enforce the provisions of subject Codicil. The complaint alleged that the defendant heirs violated the conditions of the Codicil in that:

1. Lot No. 1392 was mortgaged to the Philippine National Bank and the Republic Planters Bank in disregard of the testatrix’s specific instruction to sell, lease or mortgage only to the near descendants and sister of the testatrix.

2. Defendants-heirs failed to comply with their obligation to deliver one hundred (100) piculs of sugar x x x to plaintiff Maria Marlena Coscolluela y Belleza from sugar crop years 1985 up to the filing of the complaint as mandated by the Codicil, despite repeated demands for compliance.

3. The banks failed to comply with the 6th paragraph of the Codicil which provided that in case of the sale, lease, or mortgage of the property, the buyer, lessee or mortgagee shall likewise have the obligation to deliver 100 piculs of sugar per crop year to herein private respondent.

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The plaintiff then prayed that judgment be rendered ordering defendant-heirs to reconvey/return Lot No. 1392 to the surviving heirs of Aleja Belleza, the cancellation of TCT No. 44498 in the name of the deceased, Dr. Jorge Rabadilla, and the issuance of a new Certificate of title in the names of the surviving heirs of the late Aleja Belleza.

x x x

During the pre-trial, the parties admitted that:

On November 15, 1998, the plaintiff (private respondent) and a certain Alan Azurin, son-in-law of herein petitioner who was lessee of the property and acting as attorney-in-fact of defendant heirs, arrived at an amicable settlement and entered into a Memorandum of Agreement on the obligation to deliver one hundred piculs of sugar, to the following effect:

“That during the crop year 1988-89, the annuity mentioned in Entry No. 49074 of TCT No. 44489 will be delivered not later than January of 1989, to wit: x x x.

That the annuity above stated for crop year 1985-86, 1986-87, and 1987-88 will be complied with in cash equivalent of the number of piculs as mentioned therein and which is as herein agreed upon, taking into consideration the composite price of sugar during each crop year, which is in the total amount of ONE HUNDRED FIVE THOUSAND PESOS (P105,000.00).

That the above-mentioned amount will be paid and delivered on a staggered cash installment, payable on or before the end of December of every sugar crop year, to wit: x x x.

However, there was no compliance with the aforesaid Memorandum of Agreement except for a partial delivery of 50.80 piculs of sugar corresponding to sugar crop year 1988-1989.

On July 22, 1991, the Regional Trial Court came out with a decision, dismissing the complaint and disposing as follows: x x x

On appeal by the plaintiff, the First Division of the Court of Appeals reversed the decision of the trial court; ratiocinating and ordering thus:

“Therefore, the evidence on record having established plaintiff-appellant’s right to receive 100 piculs of sugar annually out of the produce of Lot No. 1392; defendants-appellees’ obligation under Aleja Belleza’s codicil, as heirs of a modal heir, Jorge Rabadilla, to deliver such amount of sugar to plaintiff-appellant; defendants-appellees’ admitted non-compliance with said obligation since 1985; and, the punitive consequences enjoined by both the codicil and the Civil Code, of seizure of Lot No. 1392 and its reversion to the estate of Aleja Belleza in case of non-compliance, this Court deems it proper to order the reconveyance of title over Lot No. 1392 from the estate of Jorge Rabadilla to the estate of Aleja Belleza. However, plaintiff-appellant must

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institute separate proceedings to re-open Aleja Belleza’s estate, secure the appointment of an administrator, and distribute Lot No. 1392 to Aleja Belleza’s legal heirs in order to enforce her right, reserved to her by the codicil, to receive her legacy of 100 piculs of sugar per year out of the produce of Lot No. 1392 until she dies.

Accordingly, the decision appealed from is SET ASIDE and another one entered ordering defendants-appellees, as heirs of Dr. Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its fruits and interests, to the estate of Aleja Belleza.

Dissatisfied with the aforesaid disposition by the Court of Appeals, petitioner found its way to this Court via the present petition, contending that the Court of Appeals erred in ordering the reversion of Lot 1392 to the estate of testatrix Aleja Belleza on the basis of paragraph 6 of the Codicil, and in ruling that the testamentary institution of Dr. Jorge Rabadilla is a modal institution within the purview of Article 882 of the New Civil Code.

The petition is not impressed with merit.

Petitioner contents that the Court of Appeals erred in resolving the appeal in accordance with Article 882 of the New Civil Code on modal institutions and in deviating from the sole issue raised which is the absence or prematurity of the cause of action. Petitioner maintains that Article 882 does not find application as there was no modal institution and the testatrix intended a mere simple substitution – i.e., the instituted heir, Dr. Jorge Rabadilla, was to be substituted by the testatrix’s “near descendants” should the obligation to deliver the fruits to herein private respondent be not complied with. And since the testatrix died single and without issue, there can be no valid substitution and such testamentary provision cannot be given any effect.

The petitioner theorizes further that there can be no valid substitution for the reason that the substituted heirs are not definite, as the substituted heirs are merely referred to as “near descendants” without a definite identity or reference as to who are the “near descendants” and therefore, under Articles 843 and 845 of the New Civil Code, the substitution should be deemed as not written,

The contentions of petitioner are untenable. Contrary to his supposition that the Court of Appeals deviated from the issue posed before it, which was the propriety of the dismissal of the complaint on the ground of prematurity of cause of action, there was no such deviation. The Court of Appeals found that the private respondents had a cause of action against the petitioner. The disquisition made on modal institution was, precisely, to stress that the private respondent had a legally demandable right against the petitioner pursuant to subject Codicil; on which issue the Court of Appeals ruled in accordance with law.

It is a general rule under the law on succession that successional rights are transmitted from the moment of death of the decedent and compulsory heirs are called to succeed by operation of law. The legitimate children and descendants, in relation to

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their legitimate parents, and the widow or widower, are compulsory heirs. Thus, the petitioner, his mother and sisters, as compulsory heirs of the instituted heir Dr. Jorge Rabadilla, succeeded the latter by operation of law, without need of further proceedings, and the successional rights were transmitted to them from the moment of death of the decedent, Dr. Jorge Rabadilla.

Under Article 776 of the New Civil Code, inheritance includes all the property, rights and obligations of a person, not extinguished by his death. Conformably, whatever rights Dr. Jorge Rabadilla had by virtue of subject Codicil were transmitted to his forced heirs, at the time of his death. And since obligations not extinguished by death also form part of the estate of the decedent; corollarily, the obligations imposed by the Codicil on the deceased Dr. Jorge Rabadilla, were likewise transmitted to his compulsory heirs upon his death.

In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge Rabadilla, subject to the condition that the usufruct thereof would be delivered to the herein private respondent every year. Upon the death of Dr. Jorge Rabadilla, his compulsory heirs succeeded to his right and title over said property, and they also assumed his (decedent’s) obligation to deliver the fruits of the lot involved to herein private respondent. Such obligation of the instituted heir reciprocally corresponds to the right of private respondent over the usufruct, the fulfillment or performance of which is now being demanded by the latter through the institution of the case at bar. Therefore, private respondent has a cause of action against petitioner and the trial court erred in dismissing the complaint below.

Petitioner also theorizes that Article 882 of the New Civil Code on modal institution is not applicable because what the testatrix intended was a substitution – Dr. Jorge Rabadilla was to be substituted by the testatrix’s near descendants should there be noncompliance with the obligation to deliver the piculs of sugar to private respondent.

Again, the contention without merit.

Substitution is the designation by the testator of a person or persons to take the place of the heir or heirs first instituted. Under substitutions in general, the testator may either (1) provide for the designation of another heir to whom the property shall pass in case the original heir should die before him/her, renounce the inheritance or be incapacitated to inherit, as in a simple substitution; or (2) leave his/her property to one person with the express charge that it be transmitted subsequently to another or others, as in a fideicommisary substitution. The Codicil sued upon contemplates neither of the two.

In simple substitution, the second heir takes the inheritance in default of the first heir by reason of incapacity, predecease or renunciation. In the case under consideration, the provisions of subject Codicil do not provide that should Dr. Jorge Rabadilla default due to predecease, incapacity or renunciation, the testatrix’s near descendants would substitute him. What the Codicil provides is that, should Dr. Jorge

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Rabadilla or his heirs not fulfill the conditions imposed in the Codicil, the property referred to shall be seized and turned over to the testatrix’s near descendants.

Neither is there a fideicommissary substitution here and on this point, petitioner is correct. In a fideicommissary substitution, the first heir is strictly mandated to preserve the property and to transmit the same later to the second heir. In the case under consideration, the instituted heir is in fact allowed under the Codicil to alienate the property provided the negotiation is with the near descendants or the sister of the testatrix. Thus, a very important element of a fideicommissary substitution is lacking: the obligation clearly imposing upon the first heir the preservation of the property and its transmission to the second heir. “Without this obligation to preserve clearly imposed by the testator in his will, there is no fideicommissary substitution.” Also, the near descendants’ right to inherit from the testatrix is not definite. The property will only pass to them should Dr. Jorge Rabadilla or his heirs not fulfill the obligation to deliver part of the usufruct to private respondent.

Another important element of a fideicommissary substitution is also missing here. Under Article 863, the second heir or the fideicommissary to whom the property is transmitted must not be beyond one degree from the first heir or the fiduciary. A fideicommissary substitution is therefore void if the first heir is not related by first degree to the second heir. In the case under scrutiny, the near descendants are not at all related to the instituted heir, Dr. Jorge Rabadilla.

The Court of Appeals erred not in ruling that the institution of Dr, Jorge Rabadilla under subject Codicil is in the nature of a modal institution and therefore, Article 862 of the New Civil Code is the provision of law in point.

x x x

The institution of an heir in the manner prescribed in Article 882 is what is known in the law of succession as an institucion sub modo or a modal institution. In a modal institution, the testator states (1) the object of the institution, (2) the purpose or application of the property left by the testator, or (3) the charge imposed by the testator upon the heir. A “mode” imposes an obligation upon the heir or legatee but it does not affect the efficacy of his right to succession. On the other hand, in a conditional testamentary disposition, the condition must happen or be fulfilled in order for the heir to be entitled to succeed the testator. The condition suspends but does not obligate; and the mode obligates but does not suspend. To some extent, it is similar to a resolutory condition.

From the provisions of the Codicil litigated upon, it can be gleaned unerringly that the testatrix intended that subject property be inherited by Dr. Jorge Rabadilla. It is likewise clearly worded that the testatrix imposed an obligation on the said instituted heir and his successors-in-interest to deliver one hundred piculs of sugar to the herein private respondent, Marlena Coscolluela Belleza, during the lifetime of the latter. However, the testatrix did not make Dr. Jorge Rabadilla’s inheritance and the effectivity of his institution as a devisee, dependent on the performance of the said

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obligation. It is clear, though, that should the obligation be not complied with, the property shall be turned over to the testatrix’s near descendants. The manner of institution of Dr. Jorge Rabadilla under subject Codicil is evidently modal in nature because it imposes a charge upon the instituted heir without, however, affecting the efficacy of such institution.

Then too, since testamentary dispositions are generally acts of liberality, an obligation imposed upon the heir should not be considered a condition unless it clearly appears from the Will itself that such was the intention of the testator. In case of doubt, the institution should be considered as modal and not conditional.

x x x

Subject Codicil provides that the instituted heir is under obligation to delivery One Hundred (100) piculs of sugar yearly to Marlena Belleza Coscuella (sic). Such obligation is imposed on the instituted heir, Dr. Jorge Rabadilla, his heirs, and their buyer, lessee, or mortgagee should they sell, lease, mortgage other otherwise negotiate the property involved. The Codicil further provides that in the event that the obligation to deliver the sugar is not respected, Marlena Belleza Coscuella (sic) shall seize the property and turn it over to the testatrix’s near descendants. The non-performance of the said obligation is thus with the sanction of seizure of the property and reversion thereof to the testatrix’s near descendants. Since the said obligation is clearly imposed on his successor-in-interest, the sanction imposed by the testatrix in case of non-fulfillment of said obligation should equally apply to the instituted heir and his successors-in-interest.

Similarly unsustainable is petitioner’s submission that by virtue of the amicable settlement, the said obligation imposed by the Codicil has been assumed by the lessee, and whatever obligation petitioner had become the obligation of the lessee; that petitioner is deemed to have made a substantial and constructive compliance of his obligation through the consummated settlement between the lessee and the private respondent, and having consummated a settlement with the petitioner, the recourse of the private respondent is the fulfillment of the obligation under the amicable settlement and not the seizure of subject property.

Suffice it to state that a Will is a personal, solemn, revocable and free act by which a person disposes of his property, to take effect after his death. Since the Will expresses the manner in which a person intends how his properties be disposed, the wishes and desires of the testator must be strictly followed. Thus, a Will cannot be the subject of a compromise agreement which would thereby defeat the very purpose of making a will.

WHEREFORE, the petition is hereby DISMISSED and the decision of the Court of Appeals, dated December 23, 1993 in CA-G.R. No. CV-35555 AFFIRMED. No pronouncement as to costs.

Melo (Chairman), J., I concur as well in the separate opinion of Justice Vitug.

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Vitug, J., Plese see separate (concurring in result) opinion.Panganiban, J., I join the Separate Opinion of Justice Vitug.Gonzaga-Reyes, J., No part.

Separate Opinion

Vitug, J.:

x x x

A mode is distinguished from a condition contemplated in the rules on succession in that the latter dictates the efficacy, either in a suspensive or resolutory manner, of a testamentary disposition while the former obligates the instituted heir to comply with the mandate made by the testator but does not prevent the heir from at once claiming the inheritance provided he gives a security to ensure compliance with the will of the testator and the return of the thing received together with its fruits and interests, “should (the heir) disregard this obligation. The obligation imposed upon the heir or legatee is deemed not to be a condition for his entry forthwith into the inheritance unless a contrary intention of the testator is evident. In case of doubt, the institution is considered modal, rather than conditional. Much of the variance in the legal effects of the two classes, however, is now practically theoretical and merely conceptual. Under the old Civil Code an institucion sub modo could be said more akin to an institution sub demostratione, or an expression of a wish or suggestion of the testator that did not have any real obligatory force, that matter being left to instead to the discretion of the heir; i.e., whether to abide by it or not. The amendatory provisions of the new Civil Code now hardly differentiates between the principal effect of the non-compliance with the mode and that of the occurrence of a resolutory condition expressed in the will. In both instances, the property must be returned to the estate of the decedent to then pass on under the rules of intestacy.

ACCORDINGLY, I also vote for the dismissal of the instant petition,

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FRANCISCO v FRANCISCO-ALFONSOG.R. No. 138774, 8 March 2001

354 SCRA 112

The legitime is a portion of the estate of the deceased person which is reserved by law for the compulsory heirs. An attempt to deprive a compulsory heir of the legitime by way of a simulated sale will not be tolerated. The simulated sale will be set aside.

In this case, the simulation of sale was proved by the fact that neither of the two buyers of the property had sufficient financial resources to justify their acquisition of the property by way of a cash purchase. And because the decedent had no property other than those parcels of land which he allegedly sold to his illegitimate daughters, the simulation of said sale resulted in the dissipation of his assets and the deprivation of the legitimate daughter of her legitime.

The second reason proffered by the Supreme Court in sustaining the Court of Appeals is erroneous. The Court’s reasoning was: even if the sale was not simulated, the same violated Aida’s legitime. Therefore, the sale is void. The reasoning is flawed. If the sale was bona fide in that consideration was indeed paid, then Aida would have no cause to complain, because her father Gregorio, in his lifetime had every right to dispose the land for valuable consideration. Aida’s legitime will have to be determined at the time of death of Gregorio, at which time, the land had already been validly sold.

The Court’s argument seems to suggest that the simulated sale was Gregorio’s way of depriving Aida of her rightful participation in the distribution of his estate. However, there is nothing in the decision that would seem to prove that intent. Indeed, the decision states that Gregorio confided to Aida that the titles to the property were “in the possession of Regina Francisco and Zenaida Pascual.” There is no indication that he admitted to having fraudulently sold the property to the latter. The inference is that the titles were merely entrusted to Regina and Zenaida. Consequently, I fail to appreciate the Court’s suggestion that the transfer of the property to Regina and Zenaida was Gregorio’s “way to transfer the property to his illegitimate daughters at the expense of his legitimate daughter.”

In any event, there is merit to the nullification of the sale based on the first theory that the sale was simulated. I do not believe that the second reason preferred by the Court is correct, nor did it support the conclusion.

Pardo, J.:

x x x

Respondent Aida Francisco-Alfoso (hereafter Aida) is the only daughter of spouses Gregorio Francisco and Cirila de la Cruz, who are not both deceased.

Petitioners, on the other hand, are daughters of the late Gregorio Francisco

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with his common law wife Julia Mendoza, with whom he begot seven (7) children.

Gregorio Francisco (hereafter Gregorio) owned two parcels of residential land, situated in Barangay Lolomboy, Bocaue, Bulacan, covered by TCT Nos. T-32740 and T-117160. When Gregorio was confined in a hospital in 1990, he confided to his daughter Aida that the certificates of title of his property were in the possession of Regina Francisco and Zenaida Pascual.

After Gregorio died on July 29, 1990, Aida inquired about the certificates of title from her half sisters. They informed her that Gregoria had sold the land to them on August 15, 1983. After verification, Aida learned that there was indeed a deed of absolute sale in favor of Regina Francisco and Zenaida Pascual. Thus, on August 15, 1983, Gregorio executed a “Kasulatan sa Ganap na Bilihan, whereby for P25,000.00, he sold the two parcels of land to Regina Francisco and Zenaida Pascual. By virtue of the sale, the Register of Deeds of Bulacan issued TCT No. T-59.585 to Regina Francisco and TCT T-59.586 to Zenaida Pascual.

On April 1, 1991, Aida filed with the Regional Trial Court, Bulacan a complaint against petitioners for annulment of sale with damages. She alleged that the signature of her late father, Gregorio Francisco, on the Kasulatan sa Ganap na Bilihan dated August 15, 1983, was a forgery.

In their joint answer to the complaint, petitioners denied the alleged forgery or simulation of the deed of sale. After due proceedings, on July 21, 1994, the trial court rendered a decision dismissing the complaint. x x x

WHEREFORE, on the basis of the evidence adduced and the law applicable thereon, the Court hereby renders judgment:

a) sustaining the validity of the “Kasulatan sa Ganap na Bilihan” (Exh.”G”) executed on 15 August 1983 by the late Gregorio Francisco in favor of the defendants;

b) affirming the validity of the Transfer Certificates of Title No. T-59.585 (Exh. “I”) issued to defendant Regina Francisco and No. T-59.386 (Exh. “H”) issued to defendant Zenaida Pascual; and

c) dismissing the complaint as well as the defendants’ counterclaim for damages and attorney’s fees for lack of merit.”

In time, respondent Alfonso appealed to the Court of Appeals.

After due proceedings, on April 30, 1999, the Court of Appeals promulgated its decision reversing that of the trial court x x x.

Hence this petition.

x x x

We affirm the decision of the Court of Appeals because:

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First: The kasulatan was simulated. There was no consideration for the contract of sale. Felicitas de la Cruz, a family friend of the Francisco’s, testified that Zenaida Pascual and Regina Francisco did not have any source of income in 1983, when they bought the property, until the time when Felicitas testified in 1991.

As proof of income, however, Zenaida Pascual testified that she was engaged in operating a canteen, working as cashier in Mayon Night Club as well as buying and selling RTW (Ready to Wear) items in August of 1982 and prior thereto.

Zenaida alleged that she paid her father the amount of P10,000. She did not withdraw money from her bank account at the Rural Bank of Meycauayan, Bulacan, to pay for the property. She had personal savings other than those deposited in the bank. Her gross earnings from the RTW for three years was P9,000.00 and she earned P50.00 a night at the club.

Regina Francisco, on the other hand, was a market vendor selling nilugaw, earning a net income of P300.00 a day in 1983. She bought the property from the deceased for P15,000. She had no other source of income.

We find it incredible that engaging in buy and sell could raise the amount of P10,000.00, or that earnings in selling goto could save enough to pay P15,000.00, in cash for the land.

The testimonies of petitioners were incredible considering their inconsistent statements as to whether there was consideration for the sale and also as to whether the property was bought below or above its supposed market value. They could not even present a single witness to the kasulatan that would prove receipt of the purchase price.

Since there was no consideration for the sale, the same was simulated and hence null and void.

Second: Even if the kasulatan was not simulated, it still violated the Civil Code provisions insofar as the transaction affected respondent’s legitime. The sale was executed in 1983, when the applicable law was the Civil Code, not the Family Code.

Obviously, the sale was Gregorio’s way to transfer the property to his illegitimate daughters at the expense of his legitimate daughter. The sale was executed to prevent respondent Alfonso from claiming her legitime and rightful share in said property. Before his death, Gregorio had a change of heart and informed his daughter about the titles to the property.

According to Article 888, Civil Code:

x x x

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Gregorio did not own any other property. If indeed the parcels of land involved were the only property left by their father, the sale in fact would deprive respondent of her share in her father’s estate. By law, she is entitled to half of the estate of her father as his only legitimate child.

The legal heirs of the late Gregorio Francisco must be determined in proper testate or intestate proceedings for settlement of the estate. His compulsory heir can not be deprived of her share in the estate save by disinheritance as prescribed by law.

WHEREFORE, the petition is hereby DENIED. The decision of the Court of Appeals in CA-G.R. CV No. 48545 is AFFIRMED, in toto. No costs.

SO ORDERED.

Davide, Jr. (C.J., Chairman), Puno, Kapunan and Ynares-Santiago, JJ., concur,

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CASTRO v COURT OF APPEALSG.R. Nos. 50974-75, 31 May 1989

173 SCRA 656

An illegitimate child is a compulsory heir of his or her parent. Under the Civil Code, the successional right of an illegitimate child is conditioned upon the fact of recognition, whether voluntary or involuntary. The requirement of recognition has been abolished under the Family Code. Thus, under the present law, an illegitimate child inherits regardless of whether or not his or her parent recognized him or her as a child. The antecedent facts of the present case occurred while the Civil Code was still in force. Accordingly, the legal issues raised in the case should be governed by the provision of the said Code. However, the Supreme Court applied the more liberal provisions of the Family Code on the basis of the provision of Article 256 of the Family Code which allowed a retroactive application, provided no vested or acquired rights are impaired.

Gutierrez, Jr., J.:

x x x

Petitioners Juan Castro and Feliciana Castro are the brothers and sisters of the late Eustaquio Castro while respondent Benita Castro Naval is the only child of Eustaquio. Respondent Cipriano Naval is the husband of Benita Castro.

The Court of Appeals correctly summarized the facts of the case as follows:

In Civil Case No. 3762 entitled Juan Castro and Feliciana Castro v Benita Castro, the plaintiffs filed an action for partition of properties against the defendant alleging, among other things, that they are the forced heirs of Pedro Castro who died in Mayantoc, Tarlac on May 27, 1923.

In Civil Case No. 3763, plaintiff Marcelina Bautista also filed an action for partition of properties against Benita Castro Naval, alleging, among other things, that they are also compulsory heirs of Eustaquio Castro who died in Mayantoc, Tarlac on August 24, 1961 and that they are entitled to the partition of the properties of said deceased.

The defendants in their amended answer in both cases allege that Benita Castro Naval is the only child of the deceased Eustaquio and that said Eustaquio Castro is the son of Pedro Castro, therefore, the complaint for partition has no cause of action.

With leave of court, plaintiffs filed their amended complaints whereby they converted the original action for partition into an action for quieting of title. Defendant's husband Cipriano Naval was forthwith impleaded as party-defendant.

In the meantime, defendant Benita Naval filed a petition for appointment as receiver and for preliminary injunction in Civil Case No. 3762.

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The trial court, however, denied said petition for appointment of received, but granted the petition for writ of preliminary injunction and also adjudged Marcelina Bautista who is the plaintiff in Civil Case No. 3762 guilty of contempt and ordering her to pay a fine of P100.00.

Considering that evidence in these incidents of appointing a receiver and preliminary injunction as well as the motion for contempt were related to the merits of the case, the parties stipulated that evidence therein be considered as evidence in the trial on the merits.

During the pre-trial the parties agreed that the main issue to be resolved in this case is as to whether or not defendant Benita Castro Naval is the acknowledged natural child of Eustaquio Castro. In view of this stipulation, defendant Benita Naval was allowed to introduce evidence to show that she was indeed the acknowledged natural child of Eustaquio Castro.

The evidence on record shows that Juan Castro and Feliciana Castro, plaintiffs in Civil Case No. 3762 and Eustaquio Castro who was already dead were the children of the deceased spouses Pedro Castro and Cornelia Santiago. Marcelina Bautista, one of the plaintiffs in Civil Case No. 3763, is the surviving spouse of the deceased Eustaquio Castro. Eustaquio Castro died on August 23, 1961 and Pricola Maregmen died on September 11, 1924.

It appears that defendant Benita Castro Naval, a child of Eustaquio Castro and Pricola Maregmen, was born on March 27, 1919 in San Bartolome, Tarlac. Eustaquio Castro, who caused the registration of said birth gave the date indicated in the civil registry that he was the father. Benita Castro was later baptized in the Roman Catholic Church of Camiling, Tarlac, wherein the baptismal certificate appeared that her parents are deceased Eustaquio Castro and Pricola Maregmen. When Eustaquio Castro died, pictures were taken wherein the immediate members of the family in mourning were present, among whom was Benita Castro Naval. On this score, the plaintiffs in their complaint in Civil Case No. 3762 admitted that defendant Benita Castro Naval is the forced heir of Eustaquio Castro and a compulsory heir of Eustaquio Castro in Civil Case No. 3763.

The evidence further shows that Pricola Maregmen, the natural mother of Benita C. Naval who was a resident of Mayantoc, Tarlac, was wedded to Felix de Maya of Anoling, Camiling, Tarlac against her wishes on May 23, 1913. While the celebration of the wedding in Anoling, Camiling, Tarlac was going on, the guests soon found out that Pricola Maregmen surreptitiously left the party and went to the house of her first cousin Bernarda Pagarigan at Barrio Malacampa, also in Anoling, Camiling, Tarlac, and there she cried that she did not want to get married to Felix de Maya. That evening Pricola proceeded to Barrio San Bartolome, Mayantoc, Tarlac, where she united with her real sweetheart, Eustaquio Castro, the father of Benita Castro Naval.

Antonio Maregmen, the brother of Pricola Maregmen who was then in the wedding party learned of the disappearance of his sister. He finally found her living with Eustaquio Castro. A few days later, Eustaquio Castro

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accompanied by two persons went to the parents of Pricola Maregmen at Mayantoc, Tarlac and informed them that Pricola was already living with him as husband and wife. Pricola's parents merely submitted to their daughter's wishes, so Eustaquio Castro and Pricola Maregmen lived as husband and wife until the death of Pricola on September 11, 1924.

There is no dispute that Eustaquio Castro at the time he lived with Pricola Maregmen, was a widower, and was, therefore, free to marry Pricola. As a result of their cohabitation Benita Castro Naval, herein defendant, was born on March 27, 1919. After the death of her mother, when she was only five years old, she continued to live with her father Eustaquio Castro until his death on August 22, 1961. Moreover, when Benita Castro Naval got married to Cipriano Naval, it was Eustaquio Castro who gave her away in marriage. Even after Benita's marriage, she was taken care of by her father.

The trial court ruled that respondent Benita Castro Naval is the acknowledged and recognized natural child of Eustaquio Castro and is, therefore, entitled to participate in the partition of the properties left by him. These properties are the subject of the civil cases. As stated earlier, the Court of Appeals affirmed the trial court's decision.

The main issue raised in this petition is whether or not respondent Benita Castro Naval is the acknowledged natural and recognized illegitimate child of Eustaquio Castro.

The Court of Appeals justified its pronouncement that the private respondent is an acknowledged natural and recognized child of Eustaquio Castro in the following manner:

x x x. The recognition of Benita Castro as a natural child of Eustaquio Castro appears in the records of birth and partition. Recognition shall be made in the record of birth, a will, a statement before a court of record, or any authentic writing (Art. 278, Civil Code). It was a voluntary recognition already established which did not need any judicial pronouncement. In Javelona v Onteclaro, 74 Phil 393, the Supreme Court clarified the distinction between voluntary recognition and compulsory recognition. In the first place, a voluntary recognition is made in a public document, whereas in the indubitable writing under Article 135 is a private document. The father would ordinarily be more careful about what he said in a public document than in a private writing, so that even an incidental mention of the child as his in a public document deserves full faith and credit. In the second place, in an action on Article 131 (voluntary recognition) the natural child merely asks for a share in the inheritance by virtue of his having been acknowledged as such, and is not trying to compel the father or his heirs to make the acknowledgment, whereas the action based on Article 135 is to compel the father or his heirs to recognize the child. In the former case, acknowledgment has been formally and legally accomplished because the public character of the document makes judicial pronouncement unnecessary, while in the latter case, recognition is yet to be ordered by the courts because a private writing, lacking the stronger guaranty and higher authenticity of a

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public document is not self-executory. A final judgment in favor of the status of a natural child according to Article 135 must therefore be based on an express recognition so found and declared by the court after hearing. At this juncture. it is to be noted that an action based on voluntary acknowledgment may be brought after the death of the father, but not an action to compel acknowledgment, as a general rule (Art. 137, Civil Code) which shows the liberality of the law as to voluntary recognition, and its strictness towards compulsory acknowledgment.

While it is true that Pricola Maregmen, Benita's mother was married to Naval (sic), it is the rule, however, that in case the recognition is made by only one of the parents, it will be presumed that the child is natural if the parents recognizing it had the legal capacity to contract marriage at the time of the conception (Art. 277, Civil Code). The presumption arises from the act of recognition.

What is more is that plaintiffs in their amended complaint admitted that Benita Castro was the compulsory heir of Eustaquio Castro. They cannot now contradict their own allegation.

The Court of Appeals has correctly stated the principles but the petitioners contend that it erred in applying these principles to the facts of this case.

The law which now governs paternity and filiation is Title VI of the Family Code of the Philippines, Executive Order No. 209, July 6, 1987, as amended by Executive Order No. 227, July 17, 1987. We have examined the earlier provisions, however, because the Family Code provides in its Article 256 that:

This Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws.

There is no question that the private respondent is an illegitimate child of Eustaquio Castro. Her father Eustaquio was a widower when Pricola Maregmen, her mother, went to live with him. The two could not validly enter into a marriage because when Pricola fled from her own wedding party on May 23, 1914, the wedding rites to Felix de Maya had already been solemnized. In other words, the marriage was celebrated although it could not be consummated because the bride hurriedly ran away to join the man she really loved.

x x x

Under the Civil Code, for an illegitimate child other than natural to inherit, she must first be recognized voluntarily or by court action. This arises from the legal principle that an unrecognized spurious child like a natural child has no rights from her parents or to their estate because her rights spring not from the filiation or blood relationship but from the child's acknowledgment by the parent. In other words, the rights of an illegitimate child arose not because she was the true or real child of her parents, but because under the law, she had been recognized or acknowledged as

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such a child.

x x x

We apply the more liberal provisions of the new Family Code considering the facts and equities of this case.

First, Benita Castro Naval is unquestionably the daughter of the late Eustaquio Castro who was qualified to legally marry when she was conceived and born. From her birth on March 27, 1919 until her father's death on August 22, 1961, or for 42 years, Benita lived with her father and enjoyed the love and care that a parent bestows on an only child. The private respondents themselves admitted in their complaint in Civil Case No. 3762 that Benita is a forced heir of Eustaquio Castro.

Second, the rule on separating the legitimate from the illegitimate family is of no special relevance here because Benita and her mother Pricola Maregmen were the only immediate family of Eustaquio. There are no legitimate children born of a legitimate wife contesting the inheritance of Benita.

Third, it was Eustaquio himself who had the birth of Benita reported and registered. There is no indication in the records that Eustaquio should have known in 1919 that apart from reporting the birth of a child, he should also have signed the certificate and seen to it that it was preserved for 60 years. Or that he should have taken all legal steps including judicial action to establish her status as his recognized natural child during the elementary period to do so.

Fourth, it was Eustaquio who gave away Benita during her wedding to Cipriano Naval. The couple continued to live with the father even after the wedding and until the latter's death.

Fifth, the certificate of baptism and the picture of the Castro family during the wake for Eustaquio may not be sufficient proof of recognition under the Civil Code, but they add to the equities of this case favoring the petitioner.

To remove any possible doubts about the correctness of the findings and conclusions of the trial court and the Court of Appeals, we, therefore, apply the provisions of the Family Code which states that it shall have retroactive effect since the respondents have no clear vested rights in their favor.

Under the Code's Title VI on Paternity and Filiation, there are only two classes of children - legitimate and illegitimate. The fine distinction among various types of illegitimate children have been eliminated.

Article 175 provides that "Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children."

Articles 172 and 173 on establishing the filiation of legitimate children provide:

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Art. 172. The filiation of legitimate children is established by any of the following:(1) The record of birth appearing in the civil register or a final judgment; or(2) An admission of legitimate filiation in a public document or a private

handwritten instrument and signed by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

(1) The open and continuous possession of the status of a legitimate child; or

(2) Any other means allowed by the Rules of Court and special laws.

Art. 173. The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action.

The action already commenced by the child shall survive notwithstanding the death of either or both of the parties.

There can be no dispute that Benita Castro enjoyed the open and continuous possession of the status of an illegitimate child of Eustaquio Castro and that the action of Benita in defending her status in this case is similar to an "action to claim legitimacy" brought during her lifetime.

WHEREFORE, the petition is hereby dismissed for lack of merit. The questioned decision of the Court of Appeals is affirmed.

SO ORDERED.

Fernan (C.J., Chairman), Feliciano, Bidin and Cortes, JJ., concur.

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TAYAG v COURT OF APPEALSG.R. No. 95229, 9 June 1992

209 SCRA 665

On facts nearly identical with those of Castro v Court of Appeals, supra, the Supreme Court arrived at a diametrically opposed conclusion. It is therefore important to distinguish between these two cases.

Regalado, J.:

x x x

In said Civil Case No. 7938, herein private respondent, in her capacity as mother and legal guardian of minor Chad D. Cuyugan, filed on April 9, 1987 a complaint denominated "Claim for Inheritance" against herein petitioner as the administratrix of the estate of the late Atty. Ricardo Ocampo. The operative allegations in said complaint are as follows:

x x x

2. Plaintiff is the mother and legal guardian of her minor son, Chad Cuyugan, by the father of the defendant, the late Atty. Ricardo Ocampo; and the defendant is the known administratrix of the real and personal properties left by her deceased father, said Atty. Ocampo, who died intestate in Angeles City on September 28, 1983;

3. Plaintiff has been estranged from her husband, Jose Cuyugan, for several years now and during which time, plaintiff and Atty. Ricardo Ocampo had illicit amorous relationship with each other that, as a consequence thereof, they begot a child who was christened Chad Cuyugan in accordance with the ardent desire and behest of said Atty. Ocampo;

4. Chad, the son of plaintiff by the late Atty. Ricardo Ocampo, who was born in Angeles City on October 5, 1980 had been sired, showered with exceptional affection, fervent love and care by his putative father for being his only son as can be gleaned from indubitable letters and documents of the late Atty. Ocampo to herein plaintiff, excerpts of some of which are hereunder reproduced;

x x x

5. The minor, Chad D. Cuyugan, although illegitimate is nevertheless entitled to a share in the intestate estate left by his deceased father, Atty. Ricardo Ocampo as one of the surviving heirs;

6. The deceased Atty. Ricardo Ocampo, at the time of his death was the owner of real and personal property located in Baguio City, Angeles City and in the Province of Pampanga with approximate value in several millions of pesos;

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7. The estate of the late Atty. Ocampo has not yet been inventoried by the defendant and the inheritance of the surviving heirs, including that of said Chad, has not likewise been ascertained;

8. The only known surviving heirs of the deceased Atty. Ricardo Ocampo are his children: namely, Corito O. Tayag, Rivina O. Tayag, Evita O. Florendo, Felina Ocampo and said minor Chad, for and in whose behalf this instant complaint is filed;

9. Plaintiff has no means of livelihood and she only depends on the charity of friends and relatives for the sustenance of her son, Chad, such that it is urgent, necessary and imperative that said child be extended financial support from the estate of his putative father, Atty. Ricardo Ocampo;

10. Several demands, verbal and written, have been made for defendant to grant Chad's lawful inheritance, but despite said demands, defendant failed and refused and still fails and refuses to satisfy the claim for inheritance against the estate of the late Atty. Ocampo;

x x x

Plaintiff thereafter prays, among others, that judgment be rendered ordering defendant to render an inventory and accounting of the real and personal properties left by Atty. Ricardo Ocampo; to determine and deliver the share of the minor child, Chad, in the estate of the deceased; and to give him support pendente lite.

Petitioner, as defendant therein, filed her answer with counterclaim on June 3, 1987, disputing the material allegations in the complaint. x x x.

After the hearing of the motion to dismiss on the grounds asserted as affirmative defenses, the trial court issued the following order on October 20, 1987:

This Court is of the considered opinion that there is a need of further proceedings to adduce evidence on the various claims of the parties so as to hear their respective sides.

WHEREFORE, resolution on the preliminary hearing which partakes of the nature of a motion to dismiss requiring additional evidence is in the meantime held in abeyance. The Motion to Dismiss is hereby denied and the case is set for pre-trial x x x."

With the denial of her motion for reconsideration of said order on November 19, 1987, petitioner filed on December 10, 1987 a petition for certiorari and prohibition before the Court of Appeals x x x which was granted x x x and enjoined respondent judge to resolve petitioner's motion praying for the dismissal of the complaint based on the affirmative defenses within ten (10) days from notice thereof.

In compliance with said decision of respondent court, the trial court acted on and thereafter denied the motion to dismiss, which had been pleaded in the affirmative

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defenses in Civil Case No. 7938, in an order dated October 24, 1989, resolving the said motion in the following manner:

x x x

From all the foregoing, the court finds that the complaint is sufficient in form and substance and, therefore, the motion to dismiss could not be granted until after trial on the merits in which it should be shown that the allegations of the complaint are unfounded or a special defense to the action exists.

WHEREFORE, the Motion to Dismiss is hereby denied.

x x x

Petitioner contends that the action for inheritance filed by herein private respondent in behalf of the minor child, Chad Cuyugan, is premature and the complaint states no cause of action. She submits that the recognition of the minor child, either voluntarily or by judicial action, by the alleged putative father must first be established before the former can invoke his right to succeed and participate in the estate of the latter. Petitioner asseverates that since there is no allegation of such recognition in the complaint denominated as "Claim for Inheritance" then there exists no basis for private respondent's aforementioned claim, and consequently, the complaint should be dismissed.

The instant case is similar to the case of Paulino v Paulino et al., wherein the petitioner, as plaintiff, brought an action against the private respondents, as defendants, to compel them to give her share of inheritance in the estate of the late Marcos Paulino, claiming and alleging, inter alia, that she is the illegitimate child of the deceased; that no proceeding for the settlement of the deceased's estate had been commenced in court; and that the defendants had refused and failed to deliver her share in the estate of the deceased. She accordingly prayed that the defendants therein be ordered to deliver her aforesaid share. The defendants moved for the dismissal of her complaint on the ground that it states no cause of action and that, even if it does, the same is barred by prescription.

The only difference between the aforecited case and the case at bar is that at the time of the filing of the complaint therein, the petitioner in that case had already reached the age of majority, whereas the claimant in the present case is still a minor. In Paulino, we held that an illegitimate child, to be entitled to support and successional rights from the putative or presumed parent, must prove his filiation to the latter. We also said that it is necessary to allege in the complaint that the putative father had acknowledged and recognized the illegitimate child because such acknowledgment is essential to and is the basis of the right to inherit. There being no allegation of such acknowledgment, the action becomes one to compel recognition which cannot be brought after the death of the putative father. The ratio decidendi in Paulino, therefore, is not the absence of a cause of action for failure of the petitioner to allege the fact of acknowledgment in the complaint, but the prescription of action.

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Applying the foregoing principles to the case at bar, although petitioner contends that the complaint filed by herein private respondent merely alleges that the minor Chad Cuyugan is an illegitimate child of the deceased and is actually a claim for inheritance, from the allegations therein the same may be considered as one to compel recognition. Further, that the two causes of action, one to compel recognition and the other to claim inheritance, may be joined in one complaint is not new in our jurisdiction.

As early as 1992, we had occasion to rule thereon in Briz c Briz, et al., wherein we said:

The question whether a person in the position of the present plaintiff can in any event maintain a complex action to compel recognition as a natural child and at the same time to obtain ulterior relief in the character of heir, is one which in the opinion of this court must be answered in the affirmative, provided always that the conditions justifying the joinder of the two distinct causes of action are present in the particular case. In other words, there is no absolute necessity requiring that the action to compel acknowledgment should have been instituted and prosecuted to a successful conclusion prior to the action in which that same plaintiff seeks additional relief in the character of heir. Certainly, there is nothing so peculiar to the action to compel acknowledgment as to require that a rule should be here applied differently from that generally applicable in other cases.

x x x

The next question to be resolved is whether the action to compel recognition has prescribed.

Petitioner argues that assuming arguendo that the action is one to compel recognition, private respondent's cause of action has prescribed for the reason that since filiation is sought to be proved by means of a private handwritten instrument signed by the parent concerned, then under paragraph 2, Article 175 of the Family Code, the action to establish filiation of the illegitimate minor child must be brought during the lifetime of the alleged putative father. In the case at bar, considering that the complaint was filed after the death of the alleged parent, the action has prescribed and this is another ground for the dismissal of the complaint. Petitioner theorizes that Article 285 of the Civil Code is not applicable to the case at bar and, instead, paragraph 2, Article 175 of the Family Code should be given retroactive effect. The theory is premised on the supposition that the latter provision of law being merely procedural in nature, no vested rights are created, hence it can be made to apply retroactively.

Article 285 of the Civil Code provides:

The action for the recognition of natural children may be brought only during the lifetime of the presumed parents, except in the following cases:

(1) If the father or mother died during the minority of the child, in which

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case the latter may file the action before the expiration of four years from the attainment of his majority;

x x x

On the other hand, Article 175 of the Family Code reads:

Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children.

This action must be brought within the same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent.

Under the last-quoted provision of law, therefore, if the action is based on the record of birth of the child, a final judgment, or an admission by the parent of the child's filiation in a public document or in a private handwritten signed instrument, then the action may be brought during the lifetime of the child. However, if the action is based on the open and continuous possession by the child of the status of an illegitimate child, or on other evidence allowed by the Rules of Court and special laws, the view has been expressed that the action must be brought during the lifetime of the alleged parent.

Petitioner submits that Article 175 of the Family Code applies in which case the complaint should have been filed during the lifetime of the putative father, failing which the same must be dismissed on the ground of prescription. Private respondent, however, insists that Article 285 of the Civil Code is controlling and, since the alleged parent died during the minority of the child, the action for filiation may be filed within four years from the attainment of majority of the minor child.

Article 256 of the Family Code states that "[t]his Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws." It becomes essential, therefore, to determine whether the right of the minor child to file an action for recognition is a vested right or not.

Under the circumstances obtaining in the case at bar, we hold that the right of action of the minor child has been vested by the filing of the complaint in court under the regime of the Civil Code and prior to the effectivity of the Family Code. We herein adopt our ruling in the recent case of Republic of the Philippines v Court of Appeals, et al., where we held that the fact of filing of the petition already vested in the petitioner her right to file it, and to have the same proceed to final adjudication in accordance with the law in force at the time, and such right can no longer be prejudiced or impaired by the enactment of a new law.

Even assuming ex gratia argumenti that the provisions of the Family Code in question is procedural in nature, the rule that a statutory change in matters of procedure may affect pending actions and proceedings, unless the language of the

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act excludes them from its operations, is not so pervasive that it may be used to validate or invalidate proceedings taken before it goes into effect, since procedure must be governed by the law regulating it at the time the question of procedure arises especially where vested rights may be prejudiced. Accordingly, Article 175 of the Family Code finds no proper application to the instant case since it will ineluctably affect adversely a right of private respondent and, consequentially, of the minor child she represents, both of which have been vested with the filing of the complaint in court. The trial court is, therefore, correct in applying the provisions of Article 285 of the Civil Code and in holding that private respondent's cause of action has not yet prescribed.

x x x

WHEREFORE, the petition at bar is DENIED and the assailed decision and resolution of respondent Court of Appeals are hereby affirmed in toto.

SO ORDERED.

Narvasa, (C.J., Chairman), Paras, and Padilla, JJ., concur. Nocon, J., on leave.

385

BARITUA v COURT OF APPEALSG.R. No. 82233, 22 March 1990

183 SCRA 565

While legitimate parents are considered as compulsory heirs of their legitimate child, the parents are secondary compulsory heirs and inherit only in default of legitimate children and decendants of the deceased. Thus, the legitimate parents have no right to demand indemnification for the death of their deceased child, and such right to indemnification properly belongs to the latter's descendants and/or spouse.

Sarmiento, J.:

In the evening of November 7, 1979, the tricycle then being driven by Bienvenido Nacario along the national highway at Barangay San Cayetano, in Baao, Camarines Sur, figured in an accident with JB Bus No. 80 x x x. As a result of that accident Bienvenido and his passenger died, and the tricycle was damaged. No criminal case arising from the accident was ever instituted.

Subsequently, on March 27, 1980, as a consequence of the extra-judicial settlement of the matter negotiated by the petitioner and the bus' insurer - Philippine First Insurance Company, Inc. (PFICI for brevity) - Bienvenido Nacario's widow, Alicia Baracena vda. de Nacario, received P18,500. In consideration of the amount she received, Alicia executed on March 27, 1980 a "Release of Claim" in favor of the petitioners and PFICI, releasing and forever discharging them from all actions, claims and demands arising from the accident which resulted in her husband's death and the damage to the tricycle which the deceased was then driving. Alicia likewise executed an affidavit of desistance in which she formally manifested her lack of interest in instituting any case, either civil or criminal, against the petitioners.

On September 2, 1981, or about one year and ten months from the date of the accident on November 7, 1979, the private respondents, who are the parents of Bienvenido Nacario, filed a complaint for damages against the petitioners with then Court of First Instance of Camarines Sur. In their complaint, the private respondents alleged that during the vigil for their deceased son, the petitioners through their representatives promised them (the private respondents) that as extra-judicial settlement, they shall be indemnified for the death of their son, for the funeral expenses incurred by reason thereof, and for the damage to the tricycle the purchase price of which they (the private respondents) only loaned to the victim. The petitioners, however, reneged on their promise and instead negotiated and settled their obligations with the long-estranged wife of their late son. The Nacario spouses prayed that the defendants, petitioners herein, be ordered to indemnify them in the amount of P25,000.00 for the death of their son Bienvenido, P10,000.00 for the damaged tricycle, P25,000.00 for compensatory and exemplary damages, P5,000.00 for attorney's fees, and for moral damages.

After trial, the court a quo dismissed the complaint, holding that the payment by the defendants (herein petitioners) to the widow and her child, who are the

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preferred heirs and successors-in-interest of the deceased Bienvenido to the exclusion of his parents, the plaintiffs (herein private respondents), extinguished any claim against the defendants (petitioners).

The parents appealed to the Court of Appeals which reversed the judgment of the trial court. The appellate court ruled that the release executed by Alicia Baracena vda. de Nacario did not discharge the liability of petitioners because the case was instituted by the private respondents in their own capacity and not as "heirs, representatives, successors and assigns" of Alicia; and Alicia could not have validly waived the damages being prayed for (by the private respondents) since she was not the one who suffered these damages arising from the death of their son. Furthermore, the appellate court said that the petitioners "failed to rebut the testimony of the appellants (private respondents) that they were the ones who bought the tricycle that was damaged in the incident. Appellants had the burden of proof of such fact, and they did establish such fact in their testimony x x x." Anent the funeral expenses, "the expenses for the funeral were likewise shouldered by the appellants (the private respondents). This was never contradicted by the appellees (petitioners). x x x Payment (for these) were made by the appellants, therefore, the reimbursement must accrue in their favor."

Consequently, the respondent appellate court ordered the petitioners to pay the private respondents P10,000.00 for the damage to the tricycle, P5,000.00 for "complete" funeral services, P450.00 for cemetery lot, P55.00 for oracion adulto, and P5,000.00 for attorney's fees. The petitioners moved for a reconsideration of the appellate court's decision but their motion was denied. Hence this petition.

The petition is meritorious.

Obligations are extinguished by various modes among them being payment. Article 1231 of the Civil Code of the Philippines provides:

x x x

There is no denying that the petitioner had paid their obligations arising from the incident that occurred on November 7, 1979. The only question is whether or not Alicia, the surviving spouse and the one who received the petitioner's payment, is entitled to it.

Article 1240 of the Civil Code of the Philippines enumerates the persons to whom payment to extinguish an obligation should be made.

Art. 1240. Payment shall be made to the person in whose favor the obligation has been constituted, or his successor in interest, or any person authorized to receive it.

Certainly there can be no question that Alicia and her son with the deceased are the successors in interest referred to in the law as the persons authorized to receive payment. The Civil Code states:

387

Article 887. The following are compulsory heirs:

1. Legitimate children and descendants, with respect to their legitimate parents and ascendants;

2. In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants;

3. The widow or widower;4. Acknowledged natural children and natural children by legal fiction;5. Other illegitimate children referred to in Article 287.

Compulsory heirs named in nos. 3, 4 and 5 are not excluded by those in nos. 1 and 2. Neither do they exclude one another.

Article 985. In default of legitimate children and descendants of the deceased, his parents and ascendants shall inherit from him, to the exclusion of collateral relatives.

It is patently clear that the parents of the deceased succeed only when the latter dies without a legitimate descendant. On the other hand, the surviving spouse concurs will all classes of heirs. As it has been established that Bienvenido was married to Alicia and that they begot a child, the private respondents are not successors-in-interest of Bienvenido; they are not compulsory heirs. The petitioners therefore acted correctly in settling their obligation with Alicia as the widow of Bienvenido and as the natural guardian of their lone child. This is so even if Alicia has been estranged from Bienvenido. Mere estrangement is not a legal ground for the disqualification of a surviving spouse as an heir of the deceased spouse.

Neither could the private respondents, as alleged creditors of Bienvenido, seek relief and compensation from the petitioners. While it may be true that the private respondents loaned to Bienvenido the purchase price of the damaged tricycle and shouldered the expenses for his funeral, the said purchase price and expenses are but money claims against the estate of their deceased son. Those money claims are not the liabilities of the petitioners, who, as we have said, had been released by the agreement of extra-judicial settlement they concluded with Alicia Baracena vda. de Nacario, the victim's widow and heir, as well as the natural guardian of their child, her co-heir. As a matter of fact, she executed a "Release of Claim" in favor of petitioners.

WHEREFORE, the petition is GRANTED; the decision of the Court of Appeals is REVERSED and SET ASIDE, and the decision of the Regional Trial Court is hereby REINSTATED. Costs against the private respondents.

SO ORDERED.

Melencio-Herrera (Chairman), Paras, Padilla and Regalado, JJ., concur.

388

VAN DORN v ROMILLO, JR.No. L-68470, 8 October 1985

139 SCRA 139

A foreign divorce validly obtained by a foreign national in a foreign court against his Filipino spouse produces effects in the Philippines. Van Dorn suggests that the divorce decree should likewise terminate the status of the foreign party as a "compulsory heir" of the former Filipino spouse. It must be noted, however, that the dictum of the court in this respect is merely an obiter inasmuch as heirship was not an issue in this case.

Melencio-Herrera, J.:

The basic background facts are that petitioner is a citizen of the Philippines, while private respondent is a citizen of the United States; that they were married in Hong Kong in 1972; that after the marriage, they established their residence in the Philippines; that they begot two children born on April 4, 1973 and December 18, 1975, respectively; that the parties were divorced in Nevada, United States, in 1982; and that petitioner has re-married also in Nevada, this time to Theodore Van Dorn.

Dated June 8, 1983, private respondent filed suit against petitioner in Civil Case No. 1075-P of the Regional Trial Court Branch CXV, in Pasay City, stating that petitioner's business in Ermita, Manila (the Galleon Shop, for short), is conjugal property of the parties, and asking that petitioner be ordered to render an accounting of that business, and that private respondent be declared with right to manage the conjugal property. Petitioner moved to dismiss the case on the ground that the cause of action is barred by previous judgment in the divorce proceedings before the Nevada Court wherein respondent had acknowledged that he and petitioner had "no community property" as of June 11, 1982. The court below denied the Motion to Dismiss in the mentioned case on the ground that the property involved in located in the Philippines so that the Divorce Decree has no bearing in the case. The denial is now the subject of this certiorari proceeding.

x x x

For resolution is the effect of the foreign divorce on the parties and their alleged conjugal property in the Philippines.

Petitioner contends that respondent is estopped from laying claim on the alleged conjugal property because of the representation he made in the divorce proceedings before the American court that they had no community property; that the Galleon Shop was not established through conjugal funds; and that respondent's claim is barred by prior judgment.

For his part, respondent avers that the Divorce Decree issued by the Nevada Court cannot prevail over the prohibitive laws of the Philippines and its declared national policy; that the acts and declarations of a foreign court, especially if the same

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is contrary to public policy, divest Philippine Courts of jurisdiction to entertain matters within its jurisdiction.

x x x

There can be no question as to the validity of that Nevada divorce in any of the States of the United States. The decree is binding on the private respondent as an American citizen. For instance, private respondent cannot sue petitioner, as her husband, in any State of the Union. What he is contending in his case is that the divorce is not valid and binding in this jurisdiction, the same being contrary to local laws and public policy.

It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorces the same being considered contrary to our concept of public policy and morality. However, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law. In this case, the divorce in Nevada released private respondent from the marriage from the standards of American law, under which divorce dissolves the marriage. x x x.

Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no standing to sue in the case below as petitioner's husband entitled to exercise control over conjugal assets. As he is bound by the Decision of his own country's court, which validly exercised jurisdiction over him, and whose decision he cannot repudiate, he is estopped by his own representation before said Court from asserting his right over the alleged conjugal property.

To maintain, as private respondent does, that, under our laws, petitioner has to be considered still married to private respondent and still subject to a wife's obligations under Article 10, et seq. of the Civil Code cannot be just. Petitioner should not be obliged together with, observe respect and fidelity, and render support to private respondent. The latter should not continue to be one of her heirs with possible rights to conjugal property. She should not be discriminated against in her own country if the ends of justice are to be served.

WHEREFORE, the Petition is granted, and respondent Judge is hereby ordered to dismiss the Complaint filed in Civil Case No. 1075-P of his court.

Teehankee (Chairman), Plana, Relova, Gutierrez, Jr., de la Fuente and Patajo, JJ., concur.

390

ROSALES v ROSALESNo. L-40789, 27 February 1987

148 SCRA 69

A daughter-in-law is not a compulsory heir of her mother-in-law. This is because of the absence of blood relationship between the two.

Gancayco, J.:

In this Petition for Review of two (2) Orders of the Court of First Instance of Cebu the question raised is whether the widow whose husband predeceased his mother can inherit from the latter, her mother-in-law.

It appears from the records of the case that on February 26, 1971, Mrs. Petra V. Rosales, a resident of Cebu City, died intestate. She was survived by her husband Fortunato T. Rosales and their two (2) children Magna Rosales Acedes and Antonio Rosales. Another child, Carterio Rosales, predeceased her, leaving behind a child, Macikequerox Rosales, and his widow Irenea C. Rosales, the herein petitioner. The estate of the deceased has an estimated gross value of about Thirty Thousand Pesos (P30,000.00).

On July 10, 1971, Magna Rosales Acedes instituted the proceedings for the settlement of the estate of the deceased in the Court of First Instance of Cebu. The case was docketed as Special Proceedings No. 3204-R. Thereafter, the trial court appointed Magna Rosales Acedes administratrix of the said estate.

In the course of the intestate proceedings, the trial court issued an Order dated June 16, 1972, declaring the following individuals the legal heirs of the deceased and prescribing their respective share of the estate -

Fortunato T. Rosales, Husband, 1/4; Magna Rosales Acedes (daughter), 1/4; Macikequerox Rosales, 1/4; and Antonio Rosales (son), 1/4.

This declaration was reiterated by the trial court in its Order dated February 4, 1975.

These Orders notwithstanding, Irenea Rosales insisted in getting a share of the estate in her capacity as the surviving spouse of the late Carterio Rosales, son of the deceased, claiming that she is a compulsory heir of her mother-in-law together with her son, Macikequerox Rosales.

Thus, Irenea Rosales sought the reconsideration of the aforementioned Orders. The trial court denied her plea. Hence this petition.

In sum, the petitioner poses two (2) questions for Our resolution. First - is a widow (surviving spouse) an intestate heir of her mother-in-law? Second - are the Orders of the trial court which excluded the widow from getting a share of the estate in question final as against the said widow?

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Our question to the first question is in the negative.

Intestate or legal heirs are classified into two (2) groups, namely, those who inherit by their own right, and those who inherit by the right of representation. Restated, an intestate heir can only inherit either by his own right, as in the order of intestate succession provided for in the Civil Code, or by the right of representation provided for in Article 981 of the same law. The relevant provisions of the Civil Code are:

Art. 980. The children of the deceased shall always inherit from him in their own right, dividing the inheritance in equal shares.

Art. 981. Should children of the deceased and descendants of other children who are dead, survive, the former shall inherit in their own right, and the latter by right of representation.

Art. 982. The grandchildren and other descendants shall inherit by right of representation, and if any one of them shall have died, leaving several heirs, the portion pertaining to him shall be divided among the latter in equal shares.

Art. 999. When the widow or widower survives with legitimate children or their descendants and illegitimate children of their descendants, whether legitimate or illegitimate, such widow or widower shall be entitled to the same share as that of a legitimate child.

There is no provision in the Civil Code which states that a widow (surviving spouse) is an intestate heir of her mother-in-law. The entire Code is devoid of any provision which entitles her to inherit from her mother-in-law either by her own right or by the right of representation. The provisions of the Civil Code which relate to the order of intestate succession (Articles 978 to 1014) enumerate with meticulous exactitude the intestate heirs of a decedent, with the state as the final intestate heir. The conspicuous absence of a provision which makes a daughter-in-law an intestate heir of the deceased all the more confirms Our observation. If the legislature intended to make the surviving spouse an intestate heir of the parent-in-law, it would have so provided in the Code.

Petitioner argues that she is a compulsory heir in accordance with the provisions of Article 887 of the Civil Code which provides that:

Art. 887. The following are compulsory heirs:

(1) Legitimate children and descendants, with respect to their legitimate parents and ascendants;

(2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants;

(3) The widow or widower;(4) Acknowledged natural children, and natural children by legal fiction;(5) Other illegitimate children referred to in article 287.

392

Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos. 1 and 2; neither do they exclude one another.

In all cases of illegitimate children, their filiation must be duly proved.

The father or mother of illegitimate children of the three classes mentioned, shall inherit from them in the manner and to the extent established by this Code.

The aforesaid provision of law refers to the estate of the deceased spouse in which case the surviving spouse (widow or widower) is a compulsory heir. It does not apply to the estate of a parent-in-law.

Indeed, the surviving spouse is considered a third person as regards the estate of the parent-in-law. We had occasion to make this observation in Lachenal v Sales, to wit:

We hold that the title to the fishing boat should be determined in Civil Case No. 3597 (not in the intestate proceeding) because it affects the lessee thereof, Lope L. Leoncio, the decedent's son-in-law, who, although married to his daughter or compulsory heir, is nevertheless a third person with respect to his estate. x x x.

By the same token, the provision of Article 999 of the Civil Code aforecited does not support petitioner's claim. A careful examination of the said Article confirms that the estate contemplated therein is the estate of the deceased spouse. The estate which is the subject matter of the intestate estate proceedings in this case is that of the deceased Petra V. Rosales, the mother-in-law of the petitioner. It is from the estate of Petra V. Rosales that Macikequerox Rosales draws a share of the inheritance by the right of representation as provided by Article 981 of the Code.

The essence and nature of the right of representation is explained by Article 970 and 971 of the Civil Code, viz -

Art. 970. Representation is a right created by fiction of law, by virtue of which the representative is raised to the place and the degree of the person represented, and acquires the rights which the latter would have if he were living or if he could have inherited.

Art. 971. The representative is called to the succession by the law and not by the person represented. The representative does not succeed the person represented but the one whom the person represented would have succeeded.

Article 971 explicitly declared that Macikequerox Rosales is called to succession by law because of his blood relationship. He does not succeed his father Carterio Rosales (the person represented) who predeceased his grandmother, Petra Rosales, but the latter whom his father would have succeeded. Petitioner cannot assert the same right of representation as she has no filiation by blood with her

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mother-in-law.

Petitioner however contends that at the time of the death of her husband Carterio Rosales he had an inchoate or contingent right to the properties of Petra Rosales as compulsory heir. Be that as it may, said right of her husband was extinguished by his death that is why it is their son Macikequerox Rosales who succeeded from Petra Rosales by right of representation. He did not succeed from his deceased father, Carterio Rosales.

On the basis of the foregoing observations and conclusions, We find it unnecessary to pass upon the second question posed by the petitioner.

Accordingly, it is Our considered opinion, and We so hold, that a surviving spouse is not an intestate heir of his or her parent-in-law.

WHEREFORE, in view of the foregoing, the Petition is hereby DENIED for lack of merit, with costs against the petitioner. Let this case be remanded to the trial court for further proceedings.

SO ORDERED.

Yap (Chairman), Narvasa, Melencio-Herrera, Cruz, Feliciano and Sarmiento, JJ., concur.

394

PADURA v BALDOVINONo. L-11960, 27 December 1958

104 Phil 1065

The division of the reservable property among the reservees is the subject matter of the following decision. The court rejected the theory of reserva integral espoused by Spanish commentators such as Scaevola, and categorically adopted the theory of delayed intestacy. The reason for rejecting the first theory is clearly discussed below.

Gervacia Agustin Benita

Manuel Fortunato Candelaria

Dionisia CristetaFelisa MelaniaFlora AniciaCornelio PabloFranciscoJuanaSeverino

Reyes, J.B.L., J.:

The facts are simple and undisputed. Agustin Padura contracted two marriages during his lifetime. With his first wife, Gervacia Landig, he had one child whom they named Manuel Padura, and with his second, Benita Garing, he had two children named Fortunato Padura and Candelaria Padura.

Agustin Padura died on April 26, 1908, leaving a last will and testament, duly probated in Special Proceedings No. 664 of the Court of First Instance of Laguna, wherein he bequeathed his properties among his children, Manuel, Candelaria and Fortunato, and his surviving spouse, Benita Garing. Under the probate proceedings, Fortunato was adjudicated four parcels of land covered under Decree No. 25960 issued in Land Registration Case No. 86 G.L.R.O. No. 10818, object of this appeal.

Fortunato Padura died unmarried on May 28, 1908, without having executed a will; and not having any issue, the said parcels of land were inherited exclusively by his mother, Benita Garing. She applied for and later was issued a Torrens Certificate of Title in her name, but subject to the condition that the properties were reservable in favor of relatives within the third degree belonging to the line from which said property came, in accordance with the applicable provision of law, under a decree of the court dated August 25, 1916, in Land Registration Case No. G.L.R.O. No. 10818.

On August 26, 1934, Candelaria Padura died leaving as her only heirs, her four legitimate children, the appellants herein, Cristeta, Melania, Anicia and Pablo, all surnamed Baldovino. Six years later, Manuel Padura also died. Surviving him are his

395

legitimate children Dionisia, Felisa, Flora, Cornelio, Francisco, Juana and Severino, all surnamed Padura, the appellees herein.

Upon the death of Benita Garing (the reservista), on October 15, 1952, appellants and appellees took possession of the reservable properties. In a resolution, dated August 1, 1953 of the Court of First Instance of Laguna in Special Proceedings No. 4551, the legitimate children of the deceased Manuel Padura and Candelaria Baldovino were declared to be the rightful reservees, and as such, entitled to the reservable properties (the original reservees, Candelaria Padura and Manuel Padura having predeceased the reservista). The instant petition, dated October 22, 1956, filed by appellants Baldovino seeks to have these properties partitioned, such that one-half of the same be adjudicated to them, and the other half to the appellees, allegedly on the basis that they inherited by right of representation from their respective parents, the original reservees. To this petition, appellees filed their opposition, maintaining that they should all (the eleven reservees) be deemed as inheriting in their own right, under which, they claim, each should have an equal share.

Based on the foregoing findings of facts, the lower court rendered judgment declaring all the reservees (without distinction) "co-owners, pro-indiviso, in equal shares of the parcels of land," subject matter of the suit.

The issue in this appeal may be formulated as follows: In a case of reserva troncal, where the only reservatarios (reservees) surviving the reservista, and belonging to the line of the origin, are nephews of the decedent (prepopsitus), but some are nephews of the half blood and others are nephews of the whole blood, should the reserved properties be apportioned among them equally, or should the nephews of the whole blood take a share twice as large as that of the nephews of the half blood?

The appellants contend that notwithstanding the reservable character of the property under Art. 891 of the new Civil Code, the reservatarios nephews of the whole blood are entitled to a share twice as large as that of the others, in conformity with Arts. 1006, 1008 of the Civil Code of the Philippines on intestate succession.

x x x

The case is one of first impression and has divided the Spanish commentators on the subject. After mature reflection, we have concluded that the position of the appellants is correct. The reserva troncal is a special rule designed primarily to assure the return of the reservable property to the third degree relatives belonging to the line from which the property originally came, and avoid its being dissipated into and by the relatives of the inheriting ascendant (reservista). x x x.

It is well known that the reserva troncal had no direct precedent in the law of Castille. The president of the Spanish Code Commission, D. Manuel Alonso Martinez, explained the motives for the formulation of the reserva troncal in the Civil Code of 1889 in his book El Codigo Civil en sus relaciones con las Legislaciones Forales in the

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following words: x x x.The stated purpose of the reserva is accomplished once the property has

devolved to the specified relatives of the line of origin. But from this time one, there is no further occasion for its application. In the relations between one reservatario and another of the same degree, there is no call for applying Art. 891 any longer; wherefore, the respective shares of each in the reversionary property should be governed by the ordinary rules of intestate succession. In this spirit the jurisprudence of this Court and that of Spain has resolved that upon the death of the ascendant reservista, the reservable property should pass, not to all the reservatarios as a class, but only to those nearest in degree to the descendant (prepositus), excluding those reservatarios of the more remote degree. And within the third degree of relationship from the descendant (prepositus), the right of representation operates in favor of nephews.

Following the order prescribed by law in legitimate succession, when there are relatives of the descendant within the third degree, the right of the nearest relative, called reservatario, over the property which the reservista (person holding it subject to reservation) should return to him, excludes that of the one more remote. The right of representation cannot be alleged when the one claiming the same as a reservatario of the reservable property is not among the relatives within the third degree belonging to the line from which the property came, inasmuch as the right granted by the Civil Code in Article 811 is the highest degree personal and for the exclusive benefit of designated persons who are within the third degree of the person from whom the reservable property came. Therefore, relatives of the fourth and the succeeding degrees can never be considered reservatarios, since the law does not recognize them as such.

In spite of what has been said relative to the right of representation on the part of one alleging his right as reservatario, who is not within the third degree of relationship, nevertheless there is right of representation on the part of reservatarios who are within the third degree mentioned by law, as in the case of nephews of the deceased person from whom the reservable property came.

Proximity or degree and right of representation are basic principles of ordinary intestate succession; so is the rule that whole blood brothers and nephews are entitled to a share double that of brothers and nephews of half blood. If in determining the rights of the reservatarios inter se, proximity of degree and the right of representation of nephews are made to apply, the rule of double share for immediate collaterals of the whole blood should be likewise operative.

In other words, the reserva troncal merely determines the group of relatives (reservatarios) to whom the property should be returned; but within that group, the individual right to the property should be decided by the applicable rules of ordinary intestate succession, since Art. 891 does not specify otherwise. This conclusion is strengthened by the circumstance that the reserva being an exceptional case, its application should be limited to what is strictly needed to accomplish the purpose of the law.

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x x x

The restrictive interpretation is the more imperative in view of the new Civil Code's hostility to successional reservas and reversions, as exemplified by the suppression of the reserva viudal and the reversion legal of the Code of 1889.

There is a third point that deserves consideration. Even during the reservista's lifetime, the reservatarios, who are the ultimate acquirers of the property, can already assert the right to prevent the reservista from doing anything that might frustrate the reversionary right; and for this purpose, they can compel the annotation of their right in the Registry of Property even while the reservista is alive. This right is incompatible with the mere expectancy that corresponds to the natural heirs of the reservista. It is likewise clear that the reservable property is no part of the estate of the reservista, who may not dispose of them by will, so long as there are reservatarios existing. The latter, therefore, do not inherit from the reservista, but from the descendant prepositus, of whom the reservatarios are heirs mortis causa, subject to the condition that they must survive the reservista. Had the nephews of whole and half blood succeeded the prepositus directly, those of full-blood would undoubtedly receive a double share compared to those of the half-blood. Why then should the latter receive equal shares simply because the transmission of the property was delayed by the interregnum of the reserva? The decedent (causante), the heirs and their relationship being the same, there is no cogent reason why the hereditary portions should vary.

It should be stated, in justice to the trial court, that its opinion is supported by distinguished commentators of the civil Code of 1889, among them Sanchez Roman and Mucius Scaevola. The reason given by these authors is that the reservatarios are called by law to take the reservable property because they belong to the line of origin; and not because of their relationship. But the argument if logically pursued would lead to the conclusion that the property should pass to any and all reservatarios, as a class, and in equal shares, regardless of lines and degrees. In truth, such is the thesis of Scaevola that later became known as the theory of reserva integral. But, as we have seen, the Supreme Courts of Spain and of the Philippines have rejected that view, and consider that the reservable property should be succeeded to by the reservatario who is nearest in degree, according to the basic rules of intestacy. x x x.

All told, our considered opinion is that reason and policy favor keeping to a minimum the alterations introduced by the reserva in the basic rules of succession mortis causa.

WHEREFORE, the appealed order of November 5, 1956 is reversed and set aside, and the reservatarios who are nephews of the whole blood are declared entitled to a share twice as large as that of the nephews of the half-blood. Let the records be remanded to the court below for further proceedings in accordance with this decision.

SO ORDERED.

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Paras, Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Concepcion, and Endencia, JJ., concur.

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EDROSO v SABLANNo. 6878, 13 September 1913

25 Phil 295

A reservor's right to the reservable property is not just usufructuary in nature. The reservor, having inherited the reservable property from the prepositus, acquires ownership thereof, subject to a resolutory condition. Thus, a reservor has a registrable title to the property, and may institute land registration proceedings in the appropriate case.

It must be noted, however, that during the registration proceedings, the reservees should intervene solely for the purpose of ensuring that the reservable nature of the property is properly inscribed in the title. Otherwise, a clean title issued pursuant to a decree of registration, may in the proper case extinguish the reserva.

Mariano Ma. Rita

Victoriano Marcelina

Pedro

Arellano, C.J.:

The subject matter of this appeal is the registration of certain property classified as required by law to be reserved. Marcelina Edroso applied for registration and issuance of title to two parcels of land situated in the Municipality of Pangsanjan, Province of Laguna, one of 1 hectare 77 ares and 63 centares, and the other of 1 hectare 6 ares and 26 centares. Two applications were filed, one for each parcel, but both were heard and decided in a single judgment.

Marcelina Edroso was married to Victoriano Sablan until his death on September 22, 1882. In this marriage they had a son named Pedro, who was born on August 1, 1881, and who at his father's death inherited the two said parcels. Pedro also died on July 15, 1902, unmarried and without issue, and by his decease the two parcels of land passed through inheritance to his mother, Marcelina Edroso. Hence the hereditary title whereupon is based the application for registration of her ownership.

Two legitimate brothers of Victoriano Sablan - that is, two uncles of Pedro Sablan - appeared in the case to oppose the registration, claiming one of two things: either that the registration be denied, "or that if granted to her, the right reserved by law to the opponents be recorded in the registration of each parcel."

The Court of Land Registration denied the registration and the applicant

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appealed through a bill of exceptions.Registration was denied because the trial court held that the parcels of land in

question partake of the nature of property required by law to be reserved and that in such a case application could only be presented jointly in the names of the mother and the said two uncles of Pedro Sablan.

The appellant impugns as erroneous the first idea advanced (second assignment of error), and denies that the lands which are the subject matter of the application are required by law to be reserved - a contention we regard as indefensible.

Facts: (1) The applicant acquired said lands from her descendant Pedro Sablan by inheritance; (2) Pedro Sablan had acquired them from his ascendant Victoriano Sablan, likewise by inheritance; (3) Victoriano Sablan had likewise acquired them by inheritance from his ascendants, Mariano Sablan and Maria Rita Fernandez, they having been adjudicated to him in the partition of hereditary property had between him and his brothers. These are admitted facts.

A very definite conclusion of law is that the hereditary title is one without a valuable consideration (gratuitous title), and it is so characterized in article 968 of the Civil Code, for he who acquires by inheritance gives nothing in return for what he receives; and a very definite conclusion of law also is that the uncles are within the third degree of blood relationship.

x x x

Marcelina Edroso, ascendant of Pedro Sablan, inherited from him these two parcels of land which he had acquired without a valuable consideration - that is, by inheritance from another ascendant, his father Victoriano. Having acquired them by operation of law, she is obligated to reserve them intact for the claimants, who are uncles or relatives within the third degree and belong to the line of Mariano Sablan and Maria Rita Fernandez, whence the lands proceeded. The trial court's ruling that they partake of the nature of property required by law to be reserved is therefore in accordance with the law.

But the appellant contends that it is not proved that the two parcels of land in question have been acquired by operation of law, and that only property acquired without a valuable consideration, which is by operation of law, is required by law to be reserved.

x x x

However that be, it is not superfluous to say, although it may be unnecessary, that the applicant inherited the two parcels of land from her son Pedro, who died "unmarried and without issue." The trial court so held as a conclusion of fact, without any objection on the appellant's part. When Pedro Sablan died without issue, his mother became his heir by virtue of her right to her son's legal portion under article

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935 of the Civil Code: x x x.

The contrary could only have occurred if the heiress had demonstrated that any of these lands had passed into her possession by free disposal in her son's will; but the case presents no testamentary provision that demonstrates any transfer of property from the son to the mother, not by operation of law, but by her son's wish. The legal presumption is that the transfer of the two parcels of land was ab intestato or by operation of law, and not by will or the wish of the predecessor in interest. All the provisions of article 811 of the Civil Code have therefore been fully complied with.

If Pedro Sablan had instituted his mother in a will as the universal heiress of his property, all he left at death would not be required by law to be reserved, but only what he would have perforce left her as the legal portion of a legitimate ascendant.

x x x

In such case only the half constituting the legal portion would be required by law to be reserved, because it is what, by operation of law, would fall to the mother from her son's inheritance; the other half at free disposal would not have to be reserved. This is all that article 811 of the Civil Code says.

No error has been incurred in holding that the two parcels of land which are the subject matter of the application are required by law to be reserved, because the interested party has not proved that either of them became her inheritance through the free disposal of her son.

x x x

Manresa, with his recognized ability, summarizes the subject under the heading, "Rights and obligations during the existence of the right required by law to be reserved," in these words:

During the whole period between the constitution in legal form of the right required by law to be reserved and the extinction thereof, the relatives within the third degree, after the right that in their turn may pertain to them has been assured, have only an expectation, and therefore they do not even have the capacity to transmit that expectation to their heirs.

The ascendant is in the first place a usufructuary who should use and enjoy the things according to their nature, in the manner and form already set forth in commenting upon the articles of the Code referring to use and usufruct.

But since in addition to being the usufructuary he is, even though conditionally, the owner in fee simple of the property, he can dispose of it in the manner provided in articles 974 and 976 of the same Code. Doubt arose also on this point, but the Direccion General of the registries, in an opinion of June 25, 1892, declared that article 974 and 975, which are applicable by analogy, for they refer to property reserved by law, reveal in the clearest

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manner the attitude of the legislator on this subject, and the relatives within the third degree ought not to be more privileged in the right reserved in article 811 than the children in the right reserved by article 975, chiefly for the reason that the right required to be reserved carries with it a condition subsequent, and the property subject to those conditions can validly be alienated in accordance with article 109 of the Mortgage Law, such alienation to continue, pending fulfillment of the condition. (Civil Code, VI, 270)

Another commentator corroborates the foregoing in every way. He says:

The ascendant acquires that property with a condition subsequent, to wit, whether or not there exist at the time of his death relatives within the third degree of the descendant from whom they inherit in the line whence the property proceeds. If such relatives exist, they acquire ownership of the property at the death of the ascendant. If they do not exist, the ascendant can freely dispose thereof. If this is true, since the possessor of the property subject to conditions subsequent can alienate and encumber it, the ascendant may alienate the property required by law to be reserved, but he will alienate what he has and nothing more because no one can give what does not belong to him, and the acquirer will therefore receive a limited and revocable title. The relatives within the third degree will in their turn have an expectation to the property while the ascendant lives, an expectation that cannot be transmitted to their heirs, unless these are also within the third degree. After the person who is required by law to reserve the right has died, the relatives may rescind the alienation of the realty required by law to be reserved and they will acquire it and all the rest that has the same character in complete ownership, in fee simple, because the condition and the usufruct have been terminated by the death of the usufructuary. (Morell, Estudios sobre Bienes Reservables, 304, 305.)

The conclusion is that the person required by article 811 to reserve the right, has, beyond any doubt at all, the rights of use and usufruct. He has, moreover, for the reasons set forth, the legal title and dominion, although under a condition subsequent. Clearly, he has, under an express provision of the law, the right to dispose of the property reserved, and to dispose of is to alienate, although under a condition. He has the right to recover it, because he is the one who possesses or should possess it and have title to it, although a limited and recoverable one. In a word, the legal title and dominion, even though under a condition reside in him while he lives. After the right required by law to be reserved has been assured, he can do anything that a genuine owner can do.

On the other hand, the relatives within the third degree in whose favor the right is reserved cannot dispose of the property, first because it is in no way, either actually, constructively or formally, in their possession; and, moreover, because they have no title of ownership or of fee simple which they can transmit to another, on the hypothesis that only when the person who must reserve the right should die before them will they acquire it, thus creating a fee simple, and only then will they take their place in the succession of the descendant of whom they are relatives within the third degree, that is to say, a second contingent place in said legitimate succession in the

403

fashion of aspirants to a possible future legacy. If any of the persons in whose favor the right is reserved should, after their right has been assured in the registry, dare to dispose of even nothing more than the fee simple of the property to be reserved, his act would be null and void, for, as was definitely decided in the decision on appeal of December 30, 1897, it is impossible to determine the part "that might pertain therein to the relative at the time he exercised the right, because in view of the nature and scope of the right required by law to be reserved the extent of his right cannot be foreseen, for it may disappear by his dying before the person required to reserve it, just as it may even become absolute should that person die."

Careful consideration of the matter forces the conclusion that no act of disposal inter vivos of the persons required by law to reserve the right can be impugned by him in whose favor it is reserved, because such person has all, absolutely all, the rights inherent in ownership, except that the legal title is burdened with a condition subsequent. In conclusion, it seems to us that only an act of disposal mortis causa in favor of persons other than relatives within the third degree of the descendant from whom he got the property to be reserved must be prohibited to him, because this alone has been the object of the law: "To prevent persons outside a family from securing, by some special accident of life, property that would otherwise have remained therein." (Decision of December 30, 1897.)

Practically, even in the opinion of those who reduce the person reserving the right to the condition of a mere usufructuary, the person in whose favor it must be reserved cannot attack the alienation that may be absolutely made of the property the law requires to be reserved, in the present case, that which the applicant has made of the two parcels of land in question to a third party, because the conditional alienation that is permitted her is equivalent to an alienation of the usufruct, which is authorized by article 480 of the Civil Code, and, practically, use and enjoyment of the property required by law to be reserved are all that the person who must reserve it has during his lifetime, and in alienating the usufruct all the usefulness of the thing would be transmitted in an incontrovertible manner. The question as to whether or not she transmits the fee simple is purely academic, sine re, for it is not real, actual and positive, as is the case of the institution of two heirs, one a usufructuary and the other the owner, by the express with of the predecessor in interest.

If the person whom article 811 requires to reserve the right has all the rights inherent in ownership, he can use, enjoy, dispose of and recover it; and if, in addition to usufructuary, he is in fact and in law the real owner and can alienate it, although under a condition, the whole question is reduced to the following terms:

Cannot the heir of the property required by law to be reserved, merely because a condition subsequent is annexed to his right of disposal, himself alone register the ownership of the property he has inherited, when the persons in whose favor the reservation must be made agree thereto, provided that the right reserved to them in the two parcels of land be recorded, as the law provides?

It is well known that the vendee under pacto de retracto acquires all the rights

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of the vendor:

The vendee substitutes the vendor in all his rights and actions. (Civil Code, art. 1511.)

If the vendor can register his title, the vendee can also register the same after he has once acquired it. This title, however, in its attribute of being disposable, has a condition subsequent annexed - that the alienation the purchaser may make will be terminated, if the vendor should exercise the right granted him by art. 1507, which says:

Conventional redemption shall take place when the vendor reserves to himself the right to recover the thing sold, with the obligation to comply with article 1518, and whatever more may have been agreed upon, that is, if he recovers the thing sold by repaying the vendee the price of the sale and other expenses. Notwithstanding this condition subsequent, it is a point not at all doubtful now that the vendee may register his title in the same way as the owner of a thing mortgaged - that is to say, the latter with the consent of his creditor and the former with the consent of the vendor. He may alienate the thing bought when the acquirer knows very well from the title entered in the registry that he acquires a title revocable after a fixed period, a thing much more certain and to be expected than the purely contingent expectation of the person in whose favor is reserved a right to inherit some day what another has inherited. The purposes of the law would be defeated in not applying to the person who must make the reservation the provision therein relative to the vendee under pacto de retracto, since the argument in his favor is the more powerful and conclusive; ubi eadem ratio, eadem legis dispositio.

Therefore, we reverse the judgment appealed from, and in lieu thereof decide and declare that the applicant is entitled to register in her own name the two parcels of land which are the subject matter of the application, recording in the registration the right required by article 811 to be reserved to either or both of the opponents, Pablo Sablan and Basilio Sablan, should they survive her; without special finding as to costs.

Torres, Mapa, Johnson, Carson, and Trent, JJ., concur.

405

SIENES v ESPARCIAL-12957, 24 March 1961

1 SCRA 750

The reserva creates a double resolutory condition: (1) the death of the reservor, and (2) the survival of the reservee at the time of the death of the reservor. While the decision refers to the first as a resolutory condition, it would seem more likely that the same is a term. In any event, the case confirms that either the reservor or any of the reservees may alienate the reservable property, and the final outcome of the sales will be determined by the timeliness or untimeliness of the death of the seller. It is important to distinguish the sales referred to herein from the concept of a double sale which is regulated in Article 1544 of the Civil Code.

The subject matter of the two sales referred to herein must be clarified. It would seem fairly clear that the reservor sold the reservable land in question, since at the time of the said sale, she was the registered owner of the property and in fact in possession thereof. The sale executed by the reservees may be viewed from a different perspective. Since the reservor was still alive at the time of the said sale, it would seem that the reservees could not have validly sold the same parcel of land, which obviously was not theirs. If the said sale were to refer to the parcel of land, then the sale should properly be construed as a conditional sale - the condition being the survival of the seller-reservees upon the death of the reservor. Upon the other hand, it is also possible to construed this sale of the reservees as a sale of their inchoate right to acquire the property. Hence the subject matter of the sale would not be the reservable land, but the rights of the reservees thereto, which is conditional.

Teresa Saturnino Andrea Sps. Sienes

Agaton Francisco Fernando Paulina

Sps. Esparcia Cipriana

Dizon, J.:

Appellants commenced this action below to secure judgment (1) declaring null and void the sale executed by Paulina and Cipriana Yaeso in favor of appellees, the spouses Fidel Esparcia and Paulina Sienes; (2) ordering the Esparcia spouses to reconvey to appellants Lot 3368 of the Cadastral Survey of Ayuquitan, Oriental Negros; x x x. In their answer appellees disclaimed any knowledge or information regarding the sale allegedly made on April 20, 1951 by Andrea Gutang in favor of appellants and alleged that, if such sale was made, the same was void on the ground that Andrea Gutang had no right to dispose of the property subject matter thereof. They further alleged that said property had never been in possession of appellants, the truth being that appellees, as owners, had been in continuous possession thereof since the death of Francisco Yaeso. By way of affirmative defense and counterclaim, they further alleged that on July 30, 1951, Paulina and Cipriana Yaeso, as the only

406

surviving heirs of Francisco Yaeso, executed a public instrument of sale in favor of the spouses Fidel Esparcia and Paulina Sienes, the said sale having been registered together with an affidavit of adjudication executed by Paulina and Cipriana on July 18, 1951, a sole surviving heirs of the aforesaid deceased; that since then the Esparcias had been in possession of the property as owners.

After trial upon the issues thus joined, the lower court rendered judgment as follows:

x x x declaring (1) that the sale of Lot No. 3368 made by Andrea Gutang to the plaintiff spouses Constancio Sienes and Genoveva Silay is void, and the reconveyance prayed for by them is denied; (2) that the sale made by Paulina and Cipriana Yaeso in favor of defendants Fidel Esparcia and Paulina Sienes involving the same lot is also void, and that they have no valid title thereto; and (3) that the reservable property in question is part of and must be reverted to the estate of Cipriana Yaeso, the lone surviving relative and heir of Francisco Yaeso at the death of Andrea Gutang as of December 13, 1951. x x x.

From the above decision the Sienes spouses interposed the present appeal, their principal contentions being, firstly, that the lower court erred in holding that Lot 3368 of the Cadastral Survey of Ayuquitan was a reservable property; secondly, in annulling the sale of said lot executed by Andrea Gutang in their favor; and lastly, in holding that Cipriana Yaeso, as reservee, was entitled to inherit the land.

There is no dispute as to the following facts:

Lot 3368 originally belonged to Saturnino Yaeso. With his first wife, Teresa Ruales, he had four children named Agaton, Fernando, Paulina and Cipriana, while with his second wife Andrea Gutang, he had an only son named Francisco. According to the cadastral records of Ayuquitan, the properties left by Saturnino upon his death -the date of which does jot clearly appear of record - were left to his children as follows: Lot 3366 to Cipriana, Lot 3367 to Fernando, Lot 3375 to Agaton, Lot 3377 (southern portion) to Paulina, and Lot 3368 (western portion) to Francisco. As a result of the cadastral proceedings, original Certificate of Title No. 10275 covering Lot 3368 was issued in the name of Francisco. Because Francisco was a minor at the time, his mother administered the property for him, declared it in her name for taxation purposes, and paid the taxes due thereon. When Francisco died on May 29, 1932 at the age of 20, single and without any descendant, his mother, as his sole heir, executed the public instrument Exhibit F entitled Extrajudicial Settlement and Sale whereby, among other things, for and in consideration of the sum of P800.00, she sold the property in question to appellants. When thereafter said vendees demanded from Paulina Yaeso and her husband Jose Esparcia, the surrender of Original Certificate of Title No. 10275 - which was in their possession - the latter refused, thus giving rise to the filing of the corresponding motion in the cadastral record no. 507. The same, however, was denied.

Thereafter, or more specifically, on July 30, 1951, Cipriana and Paulina Yaeso, the surviving half-sisters of Francisco, and who as such had declared the property in their name, on January 1, 1951, executed a deed of sale in favor of the spouses Fidel

407

Esparcia and Paulina Sienes who, in turn, declared it in their name for tax purposes and thereafter secured the issuance in their name of Transfer Certificate of Title No. T-2141.

As held by the trial court, it is clear upon the facts already stated, that the land in question was reservable property. Francisco Yaeso inherited it by operation of law from his father Saturnino, and upon Francisco's death, unmarried and without descendants, it was inherited, in turn, by his mother, Andrea Gutang. The latter was, therefore, under obligation to reserve it for the benefit of relatives within the third degree belonging to the line from which said property came, if any survived her. The record discloses in this connection that Andrea Gutang died on December 13, 1951, the lone reservee surviving her being Cipriana Yaeso who died only on January 13, 1952.

In connection with reservable property, the weight of opinion is that the reserva creates two resolutory conditions, namely, (1) the death of the ascendant obliged to reserve and (2) the survival, at the time of his death, of relatives within the third degree belonging to the line from which the property came. This Court has held in connection with this matter that the reservista has the legal title and dominion to the reservable property but subject to a resolutory condition; that he is like a life usufructuary of the reservable property; that he may alienate the same but subject to reservation, said alienation transmitting only the revocable and conditional ownership of the reservista, the rights acquired by the transferee being revoked or resolved by the survival of reservatarios at the time of the death of the reservista.

The sale made by Andrea Gutang in favor of appellees was, therefore, subject to the condition that the vendees would definitely acquire ownership, by virtue of the alienation, only if the vendor die without being survived by any person entitled to the reservable property. Inasmuch as when Andrea Gutang died, Cipriana Yaeso was still alive, the conclusion becomes inescapable that the previous sale made by the former in favor of appellants became of no legal effect and the reservable property subject matter thereof passed in exclusive ownership to Cipriana.

On the other hand, it is also clear that the sale executed by the sisters Paulina and Cipriana Yaeso in favor of the spouses Fidel Esparcia and Paulina Sienes was subject to similar resolutory condition. The reserva instituted by law in favor of the heirs within the third degree belonging to the line from which the reservable property came, constitutes a real right which the reservee may alienate and dispose of, albeit conditionally, the condition being that the alienation shall transfer ownership to the vendee only if and when the reservee survives the person obliged to reserve. In the present case, Cipriana Yaeso, one of the reservees, was still alive when Andrea Gutang, the person obliged to reserve, died. Thus, the former became the absolute owner of the reservable property upon Andrea's death. While it may be true that the sale made by her and her sister prior to this event, became effective because of the occurrence of the resolutory condition, we are not now in a position to reverse the appealed decision, insofar as it orders the reversion of the property in question to the Estate of Cipriana Yaeso, because the vendees - the Esparcia spouses - did not

408

appeal therefrom.

WHEREFORE, the appealed decision - as above modified - is affirmed, with costs, and without prejudice to whatever action in equity the Esparcia spouses may have against the Estate of Cipriana Yaeso for the reconveyance of the property in question.

Bengzon, Actg. C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera and Paredes, JJ., concur.

409

LACERNA v VDA. DE CORCINOL-14603, 29 April 1961

1 SCRA 1227

The reserva applies only where the property sought to be reserved was acquired by operation of law by an ascendant from a descendant who in turn, acquired it by gratuitous title from another ascendant, brother or sister. Thus, where the disputed property was acquired by a descendant from an ascendant, there is yet no reserva because there has yet to be a second transmission of the property to another line by operation of law.

Catalino . . . . . Marcelo . . . . . Agatona . . . . . Bonifacia Valentin

Ricardo Faustino Juan JacobaPatrocinia Leonor (Half-sister of Juan)Patria Ramona

AsuncionEmilianaArsenioFelipe

First Cousins of Juan

Concepcion, J.:

This action was instituted by Ricardo, Patrocinia, Patria, Faustino, Leonor, Ramona, Asuncion, Emiliana, Arsenio and Felipe, all surnamed Lacerna, for the recovery of three parcels of unregistered lands, situated in the Municipality of Maasin, Iloilo, and more specifically described in the complaint, upon the ground that said lands belonged to the deceased Juan Marbebe, and that his cousins, plaintiff herein, are his sole heirs.

In her answer, defendant Agatona vda. de Corsino alleged, inter alia, that Juan Marbebe might still be alive; that she held the disputed lands under a power of attorney executed by Juan Marbebe; and that, if he has died, she is entitled to succeed him in the same manner as plaintiffs herein, she being related to him in the same manner as plaintiffs are.

With the court's permission, Jacoba Marbebe filed an answer in intervention alleging that she is a half-sister of Juan Marbebe who died intestate, leaving neither ascendants nor descendants, and that, as his half-sister, she is entitled, by succession, to the properties in dispute.

After due trial, the court rendered judgment for the intervenor. Hence this appeal by the plaintiffs.

The lower court found, and appellants do not question, that the lands

410

described in the complaint belonged originally to Bonifacia Lacerna. Upon her death in 1932, they passed, by succession, to her only son, Juan Marbebe who was, subsequently, taken to Culion, where he died intestate, single and without issue on February 21, 1943. The question for determination is: who shall succeed him?

It appears that his mother, Bonifacia Lacerna, had a sister, Agatona Paurillo vda. de Corcino, the defendant herein; that Catalino Lacerna died in 1950 and was survived by his children, plaintiffs Ricardo, Patrocinia and Patria, all surnamed Lacerna; and that Marcelo Lacerna, who died in 1953, was survived by his children, the other plaintiffs herein, namely, Ramona, Faustino, Leonor, Asuncion, Emiliana, Arsenio and Felipe, all surnamed Lacerna. Upon the other hand, intervenor Jacoba Marbebe is a daughter, by first marriage, of Valentin Marbebe, husband of Bonifacia Lacerna and father of Juan Marbebe, who, accordingly, is a half-brother of said intervenor.

With this factual background, the issue is narrowed down to whether Jacoba Marbebe, as half-sister of Juan Marbebe, on his father's side, is sole heir, as held by His Honor, the Trial Judge, or whether plaintiffs herein, as first cousin of Juan Marbebe, on his mother side, have a better right to succeed him, to the exclusion of Jacoba Marbebe, as plaintiffs-appellants maintain.

The latter's pretense is based upon the theory that, pursuant to Article 891 of the Civil Code of the Philippines, establishing what is known as "reserva troncal", the properties in dispute should pass to the heirs of the deceased within the third degree, who belong to the line from which said properties came, and that since the same were inherited by Juan Marbebe from his mother, they should go to his nearest relatives within the third degree on the maternal line, to which plaintiffs belong, not to intervenor, Jacoba Marbebe, despite the greater proximity of her relationship to the deceased, for she belongs to the paternal line.

Jacoba Marbebe contends, however, and the lower court held, that brothers and sisters exclude all other collateral relatives in the order of intestate succession, and that, as Juan Marbebe's half-sister, she has, accordingly, a better right than plaintiffs herein to inherit his properties.

The main flaw in appellants' theory is that it assumes that said properties are subject to the "reserva troncal", which is not a fact, for Article 891 of the Civil Code of the Philippines, provides: x x x

This article applies only to properties inherited, under the conditions therein set forth, by an ascendant from a descendant, and this is not the case before us, for the lands in dispute were inherited by a descendant, Juan Marbebe, from an ascendant, his mother, Bonifacia Lacerna. Said legal provision is, therefore, not in point, and the transmission of the aforementioned lands, by inheritance, was properly determined by His Honor, the Trial Judge, in accordance with the order prescribed for intestate succession, particularly Articles 1003 to 1009 of the Civil Code of the Philippines, pursuant to which a sister even if only a half-sister, in the absence of other sisters or

411

brothers, or of children of brothers or sisters, exclude all other collateral relatives, regardless of whether or not the latter belong to the line from which the property of the deceased came.

WHEREFORE, the decision appealed from is hereby affirmed, with costs against plaintiffs-appellants. It is so ordered.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Barrera, Paredes and Dizon, JJ., concur.

412

SOLIVIO v COURT OF APPEALSG.R. No. 83484, 12 February 1990

182 SCRA 119

The reservor can never be a descendant of the supposed prepositus. Thus, where properties were inherited from a mother (origin) by a daughter (as prepositus), which properties were later inherited by her son, the son holds the properties subject to no reservation in favor of any relative, since this case is not contemplated by Article 891 which establishes the reserva troncal. In addition, the reserva applies only if the prepositus dies without issue.

Concordia . . . . . Esteban Sr. Salustia . . . . . . Celedonia

Esteban, Jr.

Medialdea, J.:

x x x

This case involves the estate of the late novelist, Esteban Javellana, Jr., author of the first post-war Filipino novel "Without Seeing the Dawn," who died a bachelor, without descendants, ascendants, brothers, sisters, nephews or nieces. His only surviving relatives are: (1) his maternal aunt, petitioner Celedonia Solivio, the spinster half-sister of his mother, Salustia Solivio; and (2) the private respondent, Concordia Javellana-Villanueva, sister of his deceased father, Esteban Javellana, Sr.

He was a posthumous child. His father died barely ten (10) months after his marriage in December 1916 to Salustia Solivio and four months before Esteban, Jr. was born.

Salustia and her sister, Celedonia (daughter of Engracio Solivio and his second wife Josefa Fernandez), a teacher in the Iloilo Provincial High School, brought up Esteban, Jr.

Salustia brought to her marriage paraphernal properties which she had inherited from her mother, Gregoria Celo, Engracio Solivio's first wife, but no conjugal property was acquired during her short-lived marriage to Esteban, Sr.

On October 11, 1959, Salustia died, leaving all her properties to her only child, Esteban, Jr., including a house and lot in La Paz, Iloilo City, where she, her son, and her sister lived. In due time, the titles to all these properties were transferred in the name of Esteban, Jr.

During his lifetime, Esteban, Jr. had, more than once, expressed to his aunt Celedonia and some close friends his plan to place his estate in a foundation to honor his mother and to help poor but deserving students obtain a college education. Unfortunately, he died of a heart attack on February 26, 1977, without having set up

413

the foundation.

Two weeks after his funeral, Concordia and Celedonia talked about what to do with Esteban's properties. Celedonia told Concordia about Esteban's desire to place his estate in a foundation to be named after his mother, from whom his properties came, for the purpose of helping indigent students in their schooling. Concordia agreed to carry out the plan of the deceased. This fact was admitted by her in her "Motion to Reopen and/or Reconsider the Order dated April 3, 1978" which she filed on July 27, 1978 in Special Proceeding No. 2540, x x x.

Pursuant to their agreement that Celedonia would take care of the proceedings leading to the formation of the foundation, Celedonia in good faith and upon the advice of her counsel, filed on March 8, 1977 Spl. Proceeding No. 2540 for her appointment as special administratrix of the estate of Esteban Javellana, Jr. Later she filed an amended petition praying that letters of administration be issued to her; that she be declared sole heir of the deceased; and that after payment of all claims and rendition of inventory and accounting, the estate be adjudicated to her.

After due publication and hearing of her petition, as well as her amended petition, she was declared sole heir of the estate of Esteban Javellana, Jr. She explained that this was done for three reasons: (1) because the properties of the estate had come from her sister, Salustia Solivio; (2) that she is the decedent's nearest relative on his mother side; and (3) with her as sole heir, the disposition of the properties of the estate to fund the foundation would be facilitated.

On April 3, 1978, the court declared her the sole heir of Esteban, Jr. Thereafter, she sold properties of the estate to pay the taxes and other obligations of the deceased and proceeded to set up the "Salustia Solivio vda. de Javellana Foundation" x x x.

Four months later, or on August 7, 1978, Concordia Javellana-Villanueva filed a motion for reconsideration of the court's order declaring Celedonia as "sole heir" of Esteban, Jr., because she too was an heir of the deceased. On October 27, 1978, her motion was denied by the court for tardiness. Instead of appealing the denial, Concordia filed on January 7, 1980 Civil Case No. 13207 in the Regional Trial Court of Iloilo, Branch 26, entitled "Concordia Javellana-Villanueva v Celedonia Solivio" for partition, recovery of possession, ownership and damages.

On September 3, 1984, the said court rendered judgment in Civil Case No. 13207 in favor of Concordia Javellana-Villanueva.

x x x

In the meantime, Celedonia perfected an appeal to the Court of Appeals. On January 26, 1988, the Court of Appeals, Eleventh Division, rendered judgment affirming the decision of the trial court in toto. Hence, this petition for review wherein she raised the following legal issues:

414

x x x

3. whether the decedent's properties were subject to reserva troncal in favor of Celedonia, his relative within the third degree on his mother's side from whom he had inherited them; and

4. whether Concordia may recover her share of the estate after she had agreed to place the same in the "Salustia Solivio vda. de Javellana Foundation," and notwithstanding the fact that conformably with said agreement, the foundation has been formed and properties of the estate have already been transferred to it.

x x x

III. On the question of reserva troncal -

We find no merit in the petitioner's argument that the estate of the deceased was subject to reserva troncal and that it pertains to her as his only relative within the third degree on his mother's side. The reserva troncal provision of the Civil Code is found in Article 891 which reads as follows:

x x x

The persons involved in reserva troncal are:

1. The person obliged to reserve is the reservor (reservista) - the ascendant who inherits by operation of law property from his descendants.

2. The persons for whom the property is reserved are the reservees (reservatarios) - relatives within the third degree counted from the descendant (prepositus), and belonging to the line from which the property came.

3. The prepositus - the descendant who receives by gratuitous title and died without issue, making his other ascendant inherit by operation of law. (p. 692, Civil Law by Padilla, Vol. II, 1956 ed.)

Clearly, the property of the deceased, Esteban Javellana, Jr., is not reservable property, for Esteban, Jr. was not an ascendant, but the descendant of his mother, Salustia Solivio, from whom he inherited the properties in question. Therefore, he did not hold his inheritance subject to a reservation in favor of his aunt, Celedonia Solivio, who is his relative within the third degree on his mother's side. The reserva troncal is applied to properties inherited by an ascendant from a descendant who inherited it from another ascendant or a brother or sister. It does not apply to property inherited by a descendant from his ascendant, the reverse of the situation covered by Article 891.

415

Since the deceased Esteban Javellana, Jr. died without descendants, ascendants, illegitimate children, surviving spouse, brothers, sisters, nephews or nieces, what should apply in the distribution of his estate are Article 1003 and 1009 of the Civil Code which reads:

x x x

Therefore, the Court of Appeals correctly held that:

Both plaintiff-appellee and defendant-appellant being relatives of the decedent within the third degree in the collateral line, each, therefore, shall succeed to the subject estate "without distinction of line or preference among them by reason of relationship by the whole blood," and is entitled to one-half (1/2) share and share alike of the estate.

IV. The question of Concordia's one-half share -

However, inasmuch as Concordia had agreed to deliver the estate of the deceased to the foundation in honor of his mother, Salustia Solivio vda. de Javellana (from whom the estate came), an agreement which she ratified and confirmed in her "Motion to Reopen and/or Reconsider Order dated April 3, 1978" which she filed in Spl. Proceeding No. 2540:

x x x

she is bound by that agreement. It is true that by that agreement, she did not waive her inheritance in favor of Celedonia, but she did agree to place all of Esteban's estate in the "Salustia Solivio vda. de Javellana Foundation" which Esteban, Jr., during his lifetime, planned to set up to honor his mother and to finance the education of indigent but deserving students as well.

Her admission may not be taken lightly as the lower court did. Being a judicial admission, it is conclusive and no evidence need be presented to prove the agreement.

The admission was never withdrawn or impugned by Concordia, who, significantly, did not even testify in the case, although she could have done so by deposition if she were supposedly indisposed to attend the trial. Only her husband, Narciso, and son-in-law, Juanito Domin, actively participated in the trial. Her husband confirmed the agreement between his wife and Celedonia, but he endeavored to dilute it by alleging that his wife did not intend to give all, but only one-half, of her share to the foundation.

x x x

Having agreed to contribute her share of the decedent's estate to the Foundation, Concordia is obliged to honor her commitment as Celedonia has honored hers.

416

WHEREFORE, the petition for review is granted. The decision of the trial court and the Court of Appeals are hereby SET ASIDE. Concordia J. Javellana is declared an heir of the late Esteban Javellana, Jr. entitled to one-half of his estate. However, conformably with the agreement between her and her co-heir, Celedonia Solivio, the entire estate of the deceased should be conveyed to the "Salustia Solivio vda. de Javellana Foundation," of which both the petitioner and private respondent shall be trustees, and each shall be entitled to nominate an equal number of trustees to constitute the Board of Trustees of the Foundation which shall administer the same for the purposes set forth in its charter. The petitioner, as administratrix of the estate, shall submit to the probate court an inventory and accounting of the estate of the deceased preparatory to terminating the proceedings therein.

SO ORDERED.

Narvasa, Cruz, Gancayco and Griño-Aquino, JJ., concur.

417

CHUA v CFI OF NEGROS OCCIDENTAL, BRANCH VL-29901, 31 August 1977

78 SCRA 414

The gratuitous acquisition of the reservable property by the prepositus from the origin of the reservable property was interpreted in this case. Even if the prepositus had to pay a certain amount to a third party for the purpose of acquiring the reservable property, if such payment obligation was not imposed by the origin, the acquisition by the latter is still gratuitous in nature.

Patricia Jose Consolacion

Ignacio Juanito Lorenzo Manuel

Martin, J.:

x x x

It appears that in the first marriage of Jose Frias Chua with Patricia S. Militar alias Sy Quio, he sired three children, namely: Ignacio, Lorenzo and Manuel, all surnamed Frias Chua. When Patricia S. Militar died, Jose Frias Chua contracted a second marriage with Consolacion de la Torre with whom he had a child by the name of Juanito Frias Chua. Manuel Frias Chua died without leaving any issue. Then in 1929, Jose Frias Chua died intestate leaving his widow Consolacion de la Torre and his son Juanito Frias Chua of the second marriage, and sons Ignacio Frias Chua and Lorenzo Frias Chua of his first marriage. In Intestate Proceeding No. 4816, the lower court issued an order dated January 15, 1931 adjudicating, among others, the one-half (1/2) portion of Lot No. 399 and the sum of P8,000.00 in favor of Jose Frias Chua's widow, Consolacion de la Torre, the other half of Lot No. 399 in favor of Juanito Frias Chua, his son in the second marriage; P3,000.00 in favor of Lorenzo Frias Chua; and P1,550.00 in favor of Ignacio Frias Chua, his sons of the first marriage. By virtue of said adjudication, Transfer Certificate of Title No. TR-980 (14483) dated April 28, 1932 was issued by the Register of Deeds in the names of Consolacion de la Torre and Juanito Frias Chua as owners pro-indiviso of Lot No. 399.

On February 27, 1952, Juanito Frias Chua of the second marriage died intestate without any issue. After his death, his mother Consolacion de la Torre succeeded to his pro-indiviso share of Lot No. 399. In a week's time or on March 6, 1952, Consolacion de la Torre executed a declaration of heirship adjudicating in her favor the pro-indiviso share of her son Juanito as a result of which Transfer Certificate of Title No. 31796 covering the whole Lot No. 399 was issued in her name. Then on March 5, 1966, Consolacion de la Torre died intestate leaving no direct heir either in the descending or ascending line except her brother and sisters.

418

In the "Intestate Estate of Consolacion de la Torre," docketed as Sp. Proc. No. 7839-A, the petitioners herein, Ignacio Frias Chua, of the first marriage and Dominador and Remedios Chua, the supposed legitimate children of the deceased Lorenzo Frias Chua, also of the first marriage, filed the complaint a quo (subsequently segregated as a distinct suit and docketed as Civil Case No. 7839-A) on May 11, 1966 before the respondent Court of First Instance of Negros Occidental, Branch V, praying that the one-half (1/2) portion of Lot No. 399 which formerly belonged to Juanito Frias Chua but which passed to Consolacion de la Torre upon the latter's death, be declared as reservable property for the reason that the lot in question was subject to reserva troncal pursuant to Article 891 of the New Civil Code. Private respondent as administratrix of the estate of Consolacion de la Torre and the heirs of the latter traversed individually the complaint of petitioners.

On July 29, 1968, the respondent Court rendered a decision dismissing the complaint of petitioners. Hence this instant petition.

The pertinent provision on reserva troncal under the New Civil Code provides:

x x x

Pursuant to the foregoing provision, in order that a property may be impressed with a reservable character the following requisites must exist, to wit: (1) that the property was acquired by a descendant from an ascendant or from a brother or sister by gratuitous title; (2) that said descendant died without an issue; (3) that the property is inherited by another ascendant by operation of law; and (4) that there are relatives within the third degree belonging to the line from which said property came. In the case before Us, all of the foregoing requisites are present. Thus, as borne out by the records, Juanito Frias Chua of the second marriage died intestate in 1952; he died without leaving any issue; his pro-indiviso of 1/2 share of Lot No. 399 was acquired by his mother, Consolacion de la Torre, by operation of law. When Consolacion de la Torre died, Juanito Frias Chua who died intestate had relatives within the third degree. These relatives are Ignacio Frias Chua and Dominador Chua and Remedios Chua, the supposed legitimate children of the deceased Lorenzo Frias Chua, who are the petitioners herein.

The crux of the problem in instant petition is focused on the first requisite of reserva troncal - whether the property in question was acquired by Juanito Frias Chua from his father, Jose Frias Chua, gratuitously or not. In resolving this point, the respondent court said:

It appears from Exh. "3" which is part of Exh. "D" that the property in question was not acquired by Consolacion de la Torre and Juanito Frias Chua gratuitously but for a consideration, namely, that the legatees were to pay the interest and costs and other fees resulting from Civil Case No. 5300 of this Court. As such it is undeniable that the lot in question is not subject to reserva troncal, under Art. 891 of the New Civil Code, and such as the plaintiff's complaint must fail.

419

We are not prepared to sustain the respondent court's conclusion that the lot in question is not subject to a reserva troncal under Art. 891 of the New Civil Code. It is as explained by Manresa which this Court quoted with approval in Cabardo v Villanueva, 44 Phil 186, "the transmission is gratuitous or by gratuitous title when the recipient does not give anything in return." It matters not whether the property transmitted be or be not subject to any prior charges; what is essential is that the transmission be made gratuitously, or by an act of mere liberality of the person making it, without imposing any obligation on the part of the recipient; and that the person receiving the property gives or does nothing in return; or, as ably put by an eminent Filipino commentator, "the essential thing is that the person who transmits it does so gratuitously, from pure generosity, without requiring from the transferee any prestation." It is evident from the record that the transmission of the property in question to Juanito Frias Chua of the second marriage upon the death of his father Jose Frias Chua was by means of a hereditary succession and therefore gratuitous. It is true that there is the Order (Exh. "D") of the probate court in Intestate Proceeding No. 4816 which states in express terms:

2. Se adjudicada por el presente a favor de Consolacion de la Torre, viuda, mayor de edad, y de su hijo, Juanito Frias Chua, menor de edad, todos residentes de San Enrique, Negros Occidental, I.F., como herederos del finado Jose Frias Chua Choo, estas propiedades:

14483

La parcela de terreno conocida por Lote No. 399 del Cadastro de La Carlota, Negros Occidental, de 191.954 metros cuadrados y cubierto por el Certificado de Titulo No. 11759, en partes eguales pro-indiviso; por con la obligacion de pagar a las Standard Oil Co. of New York la deuda de P3,971.20, sus intereses, costas y demas gastos resultantes del asunto civil no. 5300 de este Juzgado.

But the obligation of paying the Standard Oil Co. of New York the amount of P3,971.20 is imposed upon Consolacion de la Torre and Juanito Frias Chua not personally by the deceased Jose Frias Chua in his last will and testament but by an order of this court in the Testate Proceeding No. 4816 dated January 15, 1931. As long as the transmission of the property to the heirs is free from any condition imposed by the deceased himself and the property is given out of pure generosity, it is gratuitous. It does not matter if later the court orders one of the heirs, in this case, Juanito Frias Chua, to pay the Standard Oil Co. of New York the amount of P3,971.20. This does not change the gratuitous nature of the transmission of the property to him. As far as the deceased Jose Frias Chua is concerned the transmission of the property to his heirs is gratuitous. This being the case, the lot in question is subject to reserva troncal under Art. 891 of the New Civil Code.

x x x

It is claimed that the complaint of petitioners to recover the one-half portion of

420

Lot 399 which originally belonged to Juanito Frias Chua has already prescribed when it was filed on May 11, 1966. We do not believe so. It must be remembered that the petitioners herein are claiming as reservees of the property in question and their cause of action as reservees did not arise until the time the reservor, Consolacion de la Torre, died in March 1966. When the petitioners therefore filed their complaint to recover the one-half (1/2) portion of Lot 399, they were very much in time to do so.

IN VIEW OF THE FOREGOING, the decision appealed from is hereby set aside. The petitioners Ignacio Frias Chua, Dominador Chua and Remedios Chua are declared owners of 1/2 undivided portion of Lot 399; and the Register of Deeds of Negros Occidental is hereby ordered to cancel Transfer Certificate of Title No. 31796 covering Lot No. 399 issued in the name of Consolacion de la Torre and to issue a new Certificate of Title in the names of Consolacion de la Torre, 1/2 undivided portion; Ignacio Frias Chua, 1/4 undivided portion, and Dominador Chua and Remedios Chua, 1/4 undivided portion, of said lot. Without pronouncement as to costs.

SO ORDERED.

Teehankee (Chairman), Makasiar, Muñoz-Palma, Fernandez and Guerrero, JJ., concur.

421

FLORENTINO v FLORENTINONo. 14856, 15 November 1919

40 Phil 480

Florentino settles a number of issues. First, with respect to the right of representation accorded the reservee, the same may be exercised only by such person seeking to represent if he himself is a relative within the third degree of the prepositus. Second, Florentino rejected the theory that if the reservable property does not fall into the hands of strangers, then the reserva is not applicable. Thus, whether or not the reservable property was devised or willed by the reservor to a relative of the prepositus coming from the same line as the origin, the reservable nature of the property is not lost. From this principle arises an inference that the reservable property is not part of the estate of the reservor upon his demise. Third, there is an affirmation that the title of the reservor to the reservable property is not in the nature of full dominion, by reason of the reservation provided by law. However, there is serious doubt as to the validity of this proposition in the light of the more recent pronouncements of the Court. That the reservor is a mere usufructuary (as intimated in Florentino), is contradicted by later decisions characterizing the title of the reservor to the reservable property as absolute but possessed with a resolutory condition.

Notice, however, that the court, in the dispositive portion of this decision, committed an error in the distribution of the reservable property.

Antonia Apolonio II Severina

+Jose MercedesRamon Apolonio IIIMiguel

Victorino

Antonio

Rosario

Juan +Maria

Encarnacion +Isabel +Espirita

Emilia

Jesus

Lourdes

Caridad

Dolores

Gabriel +Pedro

Jose

Asunsion

Magdalena

422

Torres, J.:

On January 17, 1918, counsel for Encarnacion (together with her husband Simeon Serrano), Gabriel, Magdalena, Ramon, Miguel, Victorino and Antonio of the surname Florentino; for Miguel Florentino, guardian ad litem of the minor Rosario Florentino; for Eugenio Singson, the father and guardian ad litem if Emilia, Jesus, Lourdes, Caridad, and Dolores of the surname Singson y Florentino; and for Eugenio Singson, guardian of the minors Jose and Asuncion Florentino, filed a complaint in the Court of First Instance of Ilocos Sur, against Mercedes Florentino and her husband, alleging as follows:

That Apolonio Isabelo Florentino II married the first time Antonia Faz de Leon; that during the marriage he begot nine children called Jose, Juan, Maria, Encarnacion, Isabel, Espirita, Gabriel, Pedro and Magdalena of the surname Florentino y de Leon; that on becoming a widower he married the second time Severina Faz de Leon with whom he had two children, Mercedes and Apolonio III of the surname Florentino y de Leon; that Apolonio Isabelo Florentino II died on February 13, 1890; that he was survived by his second wife Severina Faz de Leon and the ten children first above mentioned; that his eleventh son, Apolonio III, was born on the following 4th of March 1890.

That of the deceased Apolonio Isabelo's aforementioned eleven children, Juan, Maria and Isabel died single, without leaving any ascendants or descendants; that Ramon, Miguel, Victorino, Antonio, and Rosario are the legitimate children of the deceased Jose Florentino who was one of the children of the deceased Apolonio Isabelo; that Emilia, Jesus, Lourdes, Caridad and Dolores are the legitimate children of Espirita Florentino, now deceased, and her husband Eugenio Singson; that Jose and Asuncion are the children of Pedro Florentino, another son of the deceased Apolonio Isabelo Florentino.

That on January 17 and February 13, 1890, Apolonio Isabelo Florentino executed a will before the notary public of Ilocos Sur, instituting as his universal heirs his aforementioned ten children, the posthumous Apolonio III and his widow Severina Faz de Leon; that he declared, in one of the paragraphs of said will, all his property should be divided among all of his children of both marriages.

That, in the partition of the said testator's estate, there was given to Apolonio Florentino III, this posthumous son, the property marked with the letters A, B, C, D, E and F in the complaint, a gold rosary, pieces of gold, of silver and of table service, livestock, palay, some personal property and other objects mentioned in the complaint.

That Apolonio Florentino III, the posthumous son of the second marriage, died in 1891; that his mother, Severina Faz de Leon, succeeded to all his property described in the complaint; that the widow, Severina Faz de Leon died on November 18, 1908, leaving a will instituting as her universal heiress her only living daughter, Mercedes Florentino; that, as such heir, said daughter took possession of all the property left at the death of her mother, Severina Faz de Leon; that among the same

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is included the property, described in the complaint, which the said Severina Faz de Leon inherited from her deceased son, the posthumous Apolonio, as reservable property; that, as a reservist, the heir of the said Mercedes Florentino, deceased, had been gathering for herself alone the fruits of lands described in the complaint; that each and every one of the parties mentioned in said complaint is entitled to one-seventh of the fruits of the reservable property described therein, either by direct participation or by representation, in the manner mentioned in paragraph 9 of the complaint.

That several times the plaintiffs have, in an amicable manner, asked the defendants to deliver their corresponding part of the reservable property; that without any justifiable motive the defendants have refused and do refuse to deliver said property or to pay for its value; that for nine years Mercedes Florentino has been receiving, as rent for the lands mentioned, 360 bundles of palay at fifty pesos per bundle and 90 bundles of corn at four pesos per bundle; that thereby the plaintiffs have suffered damages in the sum of fifteen thousand four hundred and twenty-eight pesos and fifty centavos, in addition to three hundred and eight pesos and fifty-eight centavos for the value of the fruits not gathered, of one thousand pesos (P1,000.00) for the unjustifiable retention of the aforementioned reservable property and for the expenses of this suit. Wherefore, they pray it be declared that all the foregoing property is reservable property; that the plaintiffs had and do have a right to the same, in the quantity and proportion mentioned in the aforementioned paragraph 9 of the complaint; that the defendants Mercedes Florentino and her husband be ordered to deliver to the plaintiffs their share of the property in question, of the palay and of the corn above mentioned, or their value; and that they be condemned to pay the plaintiffs the sum of one thousand pesos P1,000.00) together with costs of this instance.

To the preceding complaint counsel for the defendants demurred, alleging that the cause of action is based on the obligation of the widow, Severina Faz de Leon to reserve the property she inherited from her deceased son Apolonio Florentino y Faz de Leon who, in turn, inherited the same from his father, Apolonio Isabelo Florentino; that there being no allegation to the contrary, it is to be presumed that the widow Severina Faz de Leon did not remarry after the death of this husband nor have any natural child; that the right claimed by the plaintiffs is not that mentioned in article 968 and the following articles, but that established in article 811 of the Civil Code; that the object of the provisions of the aforementioned articles is to avoid the transfer of said reservable property to those extraneous to the family of the owner thereof; that if the property inherited by the widow Severina Faz de Leon from her deceased son Apolonio Florentino y Faz de Leon (property which originated from his father and her husband) has all passed into the hands of the defendant Mercedes Florentino y Encarnacion, a daughter of the common ancestor's second marriage (said Apolonio Isabelo Florentino with the deceased Severina Faz de Leon) it is evident that the property left at the death of the posthumous son Apolonio Florentino y Faz de Leon did not pass after the death of his mother Severina, his legitimate heir as an ascendant, into the hands of strangers; that said property having been inherited by Mercedes Florentino y Encarnacion from her mother (Severina), article 811 of the Civil Code is absolutely inapplicable to the present case because, when the defendant

424

Mercedes, by operation of law, entered into and succeeded to, the possession of the property lawfully inherited from her mother Severina Faz de Leon, said property had, while in the possession of her mother, lost the character of reservable property - there being a legitimate daughter of Severina Faz de Leon with the right to succeed her in all her rights, property and actions; that the restraints of the law whereby said property may not pass into the possession of strangers are void, inasmuch as the said widow had no obligation to reserve the same, as Mercedes Florentino is a forced heiress of her mother Severina Fax de Leon; that, in the present case, there is no property reserved for the plaintiffs since there is a forced heiress entitled to the property left by the death of the widow Severina Faz de Leon who never remarried; that the obligation to reserve is secondary to the duty of respecting the legitime; that in the instant case, the widow, Severina Faz de Leon was on duty bound to respect the legitime of her daughter Mercedes, the defendant; that her obligation to reserve the property could not be fulfilled to the prejudice of the legitime which belongs to her forced heiress, citing in support of these statements the decision of the supreme court of Spain of January 4, 1911; that, finally, the application of article 811 of the Civil Code in favor of the plaintiffs would presuppose the exclusion of the defendant from her right to succeed exclusively to all the property, rights and actions left by her legitimate mother, although the said defendant has a better right that the plaintiffs; and that there would be injustice if the property claimed be adjudicated to the plaintiffs, as well as a violation of section 5 of the Jones Law which invalidates any law depriving any person of an equal protection. Wherefore, they prayed that the demurrer be sustained, with costs against the plaintiffs.

After the hearing of the demurrer, on August 22, 1918, the judge absolved the defendants from the complaint and condemned the plaintiffs to pay the costs.

Counsel for the plaintiffs excepted to this order, moved to vacate it and to grant them a new trial; said motion was overruled; the plaintiffs excepted thereto and filed the corresponding bill of exceptions which was allowed, certified and forwarded to the clerk of this court.

x x x

Being of the opinion that the emendation of the indicated defects is not necessary - as in this case what has been done does not prejudice the parties - the appellate court will now proceed to decide the suit according to its merits, x x x.

In order to decide whether the plaintiffs are or are not entitled to invoke, in their favor, the provisions of article 811 of the Civil Code, and whether the same article is applicable to the question of law presented in this suit, it is necessary to determine whether the property enumerated in paragraph 5 of the complaint is of the nature of reservable property; and, if so, whether in accordance with the provisions of the Civil Code in article 811, Severina Faz de Leon (the widow of the deceased Apolonio Isabelo Florentino) who inherited the said property from her son Apolonio Florentino III (born after the death of his father Apolonio Isabelo) had the obligation to preserve and reserve the same for the relatives, within the third degree, of her aforementioned

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deceased son Apolonio III.

x x x

x x x Even if Severina left in her will said property, together with her own, to her only daughter and forced heiress, Mercedes Florentino, nevertheless this property had not lost its reservable nature inasmuch as it originated from the common ancestor of the litigants Apolonio Isabelo; was inherited by his son Apolonio III; was transmitted by same (by operation of law) to his legitimate mother and ascendant, Severina Faz de Leon.

The posthumous son, Apolonio Florentino III, acquired the property, now claimed by his brothers, by a lucrative title or by inheritance from his aforementioned legitimate father, Apolonio Isabelo Florentino II. Although said property was inherited by his mother, Severina Faz de Leon, nevertheless, she was in duty bound, according to article 811 of the Civil Code, to reserve the property thus acquired for the benefit of the relatives, within the third degree, of the line from which such property came.

According to the provisions of law, ascendants do not inherit the reservable property, but its enjoyment, use or trust, merely for the reason that said law imposes the obligation to reserve and preserve the same for certain designated persons who, on the death of the said ascendants-reservists, (taking into consideration the nature of the line from which such property came) acquired the ownership of said property in fact and by operation of law in the same manner as forced heirs (because they are also such) - said property reverts to said line as long as the aforementioned persons who, from the death of the ascendants-reservists, acquire in fact the right of reservatarios (persons from whom property is reserved), and are relatives within the third degree, of the descendant from whom the reservable property came.

Following the order prescribed by law in legitimate succession, when there are relatives of the descendant within the third degree, the right of the nearest relatives, called reservatarios, over the property which the reservista (person holding it subject to reservation) should return to him, excludes that of the one more remote. The right of representation cannot be alleged when the one claiming same as a reservatario of the reservable property is not among the relatives within the third degree belonging to the line from which such property came, inasmuch as the right granted by the Civil Code in article 811 is in the highest degree personal and for the exclusive benefit of designated persons who are the relatives, within the third degree, of the person from whom the reservable property came. Therefore, relatives of the fourth and the succeeding degrees can never be considered as reservatarios, since the law does not recognize them as such.

In spite of what has been said relative to the right of representation on the part of one alleging his right as reservatario who is not within the third degree relationship, nevertheless there is right of representation on the part of reservatarios who are within the third degree mentioned by law, as in the case of nephews of the deceased person from whom the reservable property came. These reservatarios have the right to

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represent their ascendants (fathers and mothers) who are the brothers of the said deceased person and relatives within the third degree in accordance with article 811 of the Civil Code.

In this case, it is conceded without denial by defendants, that the plaintiffs Encarnacion, Gabriel and Magdalena are the legitimate children of the first marriage of the deceased Apolonio Isabelo Florentino II; that Ramon, Miguel, Ceferino, Antonio and Rosario are both grandchildren of Apolonio Isabelo Florentino II, and children of his deceased son, Jose Florentino; that the same have the right to represent their aforementioned father, Jose Florentino; that Emilia, Jesus, Lourdes, Caridad and Dolores are the legitimate children of the deceased Espirita Florentino, one of the daughters of the deceased Apolonio Isabelo Florentino II, and represent the right of their aforementioned mother; and that the other plaintiffs, Jose and Asuncion, have also the right to represent their legitimate father Pedro Florentino, one of the sons of the aforementioned Apolonio Isabelo Florentino II. It is a fact, admitted by both parties, that the other children of the first marriage of the deceased Apolonio Isabelo Florentino II died without issue so that this decision does not deal with them.

There are then seven reservatarios who are entitled to the reservable property left at the death of Apolonio III, the posthumous son of the aforementioned Apolonio Isabelo II, to wit, his three children of his first marriage - Encarnacion, Gabriel, Magdalena; his three children, Jose, Espirita and Pedro who are represented by their own twelve children respectively; and Mercedes Florentino, his daughter by a second marriage. All of the plaintiffs are the relatives of the deceased posthumous son, Apolonio Florentino III, within the third degree (four of whom being his half-brothers and the remaining twelve being his nephews as they are the children of this three half-brothers). As the first four are his relatives within the third degree in their own right and the other twelve are such by representation, all of them are indisputably entitled as reservatarios to the property which came from the common ancestor, Apolonio Isabelo, to Apolonio Florentino III by inheritance during his lifetime, and in turn by inheritance to his legitimate mother, Severina Faz de Leon, widow of the aforementioned Apolonio Isabelo Florentino II.

In spite of the provision of article 811 of the Civil Code already cited, the trial judge refused to accept the theory of the plaintiffs and, accepting that of the defendants, absolved the latter from the complaint on the ground that said article is absolutely inapplicable to the instant case, inasmuch as the defendant Mercedes Florentino survived her brother Apolonio III, from whom the reservable property came and her mother, Severina Faz de Leon, the widow of her father, Apolonio Isabelo Florentino II; that the defendant Mercedes, being the only daughter of Severina Faz de Leon, is likewise her forced heiress; that when she inherited the property left at the death of her mother, together with that which came from her deceased brother Apolonio III, the fundamental object of article 811 of the Code was thereby complied with, inasmuch as the danger that the property coming from the same line might fall into the hands of strangers had been avoided; and that the hope or expectation on the part of the plaintiffs of the right to acquire the property of the deceased Apolonio III never came to existence because there is a forced heiress who is entitled to such

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property.

The judgment appealed from is also founded on the theory that article 811 of the Civil Code does not destroy the system of legitimate succession and that the pretension of the plaintiffs to apply said article in the instant case would be permitting the reservable right to reduce and impair the forced legitime which exclusively belongs to the defendant Mercedes Florentino, in violation of the precept of article 813 of the same Code which provides that the testator cannot deprive his heirs of their legitime, except in the cases expressly determined by law. Neither can he impose upon it any burden, condition or substitution of any kind whatsoever, saving the provisions concerning the usufruct of the surviving spouse, citing the decision of the Supreme Court of Spain of January 4, 1911.

The principal question submitted to the court for decision consists mainly in determining whether the property left at the death of Apolonio III, the posthumous son of Apolonio Isabelo II, was or was not invested with the character of reservable property when it was received by his mother, Severina Faz de Leon.

The property enumerated by the plaintiffs in their complaint came, without any doubt whatsoever, from the common ancestor Apolonio Isabelo II, and when, on the death of Apolonio III without issue, the same passed by operation of law into the hands of his legitimate mother, Severina Faz de Leon, it became reservable property, in accordance with the provision of Article 811 of the Code, with the object that the same should not fall into the possession of persons other than those comprehended within the order of succession traced by the law from Apolonio Isabelo II, the source of said property. If this property was in fact clothed with the character and condition of reservable property when Severina Faz de Leon inherited the same from her son Apolonio III, she did not thereby acquire the dominion or right of ownership but only the right of usufruct or of fiduciary, with the necessary obligation to preserve and to deliver or return it as such reservable property to her deceased son's relatives within the third degree, among whom is her daughter, Mercedes Florentino.

Reservable property neither comes, nor falls under, the absolute dominion of the ascendant who inherits and receives same from his descendant, therefore it does not form part of his own property nor become the legitime of his forced heirs. It becomes his own property only in case that all the relatives of his descendant shall have died (reservista), in which case said reservable property losses such character.

With full right Severina Faz de Leon could have disposed in her will of all her own property in favor of her only living daughter, Mercedes Florentino, as forced heiress. But whatever provision there is in her will concerning the reservable property received from her son Apolonio III, or rather, whatever provision will reduce the rights of the other reservatarios, the half brothers and nephews of her daughter Mercedes, is unlawful, null and void, inasmuch as said property is not her own and she has only the right of usufruct or of fiduciary, with the obligation to preserve and to deliver the same to the reservatarios, one of whom is her own daughter, Mercedes Florentino.

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It cannot reasonably be affirmed, founded upon an express provision of law, that by operation of law all of the reservable property, received during the lifetime of Severina Faz de Leon from her son, Apolonio III, constitutes or forms part of the legitime pertaining to Mercedes Florentino. If said property did not come to be the legitimate and exclusive property of Severina Faz de Leon, her only legitimate and forced heiress, the defendant Mercedes, could not inherit all by operation of law and in accordance with the order of legitimate succession, because the other relatives of the deceased Apolonio III, within the third degree, as well as herself are entitled to such reservable property.

For this reason, in no manner can it be claimed that the legitime of Mercedes Florentino, coming from the inheritance of her mother Severina Faz de Leon, has been reduced and impaired; and the application of article 811 of the Code to the instant case in no way prejudices the rights of the defendant Mercedes Florentino, inasmuch as she is entitled to a part only of the reservable property, there being no lawful or just reason which serves as real foundation to disregard the right to Apolonio III's other relatives, within the third degree, to participate in the reservable property in question. As these relatives are at present living, claiming for it with an indisputable right, we cannot find any reasonable and lawful motive why their rights should not be upheld and why they should not be granted equal participation with the defendant in the litigated property.

The claim that because of Severina Faz de Leon's forced heiress, her daughter Mercedes, the property received from the deceased son Apolonio III lost the character, previously held, of reservable property; and that the mother, the said Severina, therefore had no further obligation to reserve the same for the relatives within the third degree of the deceased Apolonio III, is evidently erroneous for the reason that, as has been already stated, the reservable property, left in a will by the aforementioned Severina to her only daughter Mercedes, does not form part of the inheritance left by her death nor of the legitime of the heiress Mercedes. Just because she has a forced heiress, with a right to her inheritance, does not relieve Severina of her obligation to reserve the property which she received from her deceased son, nor did the same lose the character of reservable property, held before the reservatarios received same.

It is true that when Mercedes Florentino, the heiress of the reservista Severina, took possession of the property in question, same did not pass into the hands of strangers. But it is likewise true that the said Mercedes is not the only reservataria. And there is no reason founded upon law and upon the principle of justice why the other reservatarios, the other brothers and nephews, relatives within the third degree in accordance with the precept of article 811 of the Civil Code, should be deprived of portions of the property which, as reservable property, pertain to them.

For the foregoing reasons, it follows that the reversal of the order of decision appealed from we should declare, as we hereby do, that the aforementioned property, inherited by the deceased Severina Faz de Leon from her son Apolonio Florentino III, is reservable property; that the plaintiffs, being relatives of the deceased Apolonio III

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within the third degree, are entitled to six-sevenths of said reservable property; that the defendant Mercedes is entitled to the remaining seventh part thereof; that the latter, together with her husband Angel Encarnacion, shall deliver to the plaintiffs, jointly, six-sevenths of the fruits or rents, claimed from said portion of the land and of the quantity claimed from January 17, 1918, until fully delivered; and that the indemnity for one thousand pesos (P1,000.00) prayed for in the complaint is denied, without special findings as to the costs of both instances. So ordered.

Arellana, C.J., Johnson, Araullo, Street, Malcolm and Avancena, JJ., concur.

430

GONZALES v COURT OF FIRST INSTANCE OF MANILAL-34395, 19 May 1981

104 SCRA 481

Gonzales gives an extended discussion on the nature and effects of reserva troncal. Among other things, it stresses that the reservable property does not form part of the estate of the reservor, if upon his or her death he or she is survived by qualified reservees. As such, the reservor cannot will or bequeath the reservable property in his or her will, nor can the reservor choose who or discriminate among the reservees should get the property. The reservees inherit the reservable property not from the reservor, but from the prepositus. Thus, Gonzales affirms the ruling in Padura v Baldovino and follows the theory of delayed intestacy in the matter of distributing the reservable property among the reservees. It should be noted that the Court relied heavily on the ruling in Florentino and quotes substantially from the text of the said decision. However, there is a failure to note the oversight committed by the Court when it failed to distinguish between full-blood brothers from half-blood brothers. The opportunity to rectify an error was lost.

Benito Legarda Tuason

ConsueloRita+Benito Legarda de la Paz Filomena Roces

BeatrizRosarioTeresa+FilomenaBenito Carmen Legarda y FernandezAlejandro Ramon Legarda y HernandezJose Filomena Legarda y Lobregat

Jaime Legarda y LobregatCelso Legarda y LobregatAlejandro Legarda y LobregatMa. Teresa Legarda y LobregatMa. Antonia Legarda y LobregatJose Legarda y LobregatRosario Legarda y LobregatBenito Legarda y LobregatEduardo Legarda y LobregatTrinidad Legarda

Aquino, J.:

x x x

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Benito Legarda y de la Paz, the son of Benito Legarda y Tuason, died in Manila on June 17, 1933. He was survived by his widow, Filomena Roces, and their seven children: four daughters named Beatriz, Rosario, Teresa and Filomena, and three sons named Benito, Alejandro and Jose.

On July 12, 1939, the real properties left by Benito Legarda y Tuason were partitioned in three equal portions by his daughters, Consuelo and Rita, and the heirs of his deceased son Benito Legarda y de la Paz who were represented by Benito F. Legarda.

Filomena Legarda y Roces died intestate and without issue on March 19, 1943. Her sole heiress was her mother, Filomena Roces vda. de Legarda.

Mrs. Legarda executed on May 12, 1947 an affidavit adjudicating extrajudicially to herself the properties which she inherited from her deceased daughter, Filomena Legarda. The said properties consist of the following: x x x.

These are the properties in litigation in this case. As a result of the affidavit of adjudication, Filomena Roces succeeded her deceased daughter Filomena Legarda as co-owner of the properties held pro-indiviso by her other six children.

Mrs. Legarda on March 6, 1953 executed two handwritten identical documents wherein she disposed of the properties, which she inherited from her daughter, in favor of the children of her sons, Benito, Alejandro and Jose (sixteen grandchildren in all). The document reads:

A mis hijos:

Dispongo que se reparta a todos mis nietos, hijos de Ben, Mandu y Pepito, los bienes que he heredado de mi difunta hija Filomena y tambien los acciones de la Destileria "La Rosario" recientemente comprada a los hermanos Valdes Legarda.

De los bienes de mi hija Filomena se deducira un lote de terreno que yo he donada a las Hijas de Jesus, en Guipit.

La casa No. 181 San Rafael, la cedo a mi hijo Mandu, solo la casa; porque ella esta construida sobre terreno de los hermanos Legarda Roces.

Sgd. FILOMENA ROCES LEGARDA6 Marzo 1953

During the period from July 1958 to February 1959, Mrs. Legarda and her six surviving children partitioned the properties consisting of the one-third share in the estate of Benito Legarda y Tuason which the children inherited in representation of their father, Benito Legarda y de la Paz.

Mrs. Legarda died on September 22, 1967. Her will was admitted to probate as

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a holographic will in the order dated July 16, 1968 of the Court of First Instance of Manila in Special Proceeding No. 70878, Testate Estate of Filomena Roces vda. de Legarda. The decree of probate was affirmed by the Court of Appeals in Legarda v Gonzales, CA-G.R. No. 43480-R, July 30, 1976.

In the testate proceeding, Beatriz Legarda Gonzales, a daughter of the testatrix, filed on May 20, 1968 a motion to exclude from the inventory of her mother's estate the properties which she inherited from her deceased daughter, Filomena, on the ground that said properties are reservable properties which should be inherited by Filomena Legarda's three sisters and three brothers, and not by the children of Benito, Alejandro and Jose, all surnamed Legarda. That motion was opposed by the administrator, Benito F. Legarda.

Without awaiting the resolution on that motion, Mrs. Gonzales filed on June 20, 1968 an ordinary civil action against her brothers, sisters, nephews and nieces and her mother's estate for the purpose of securing a declaration that the said properties are reservable properties which Mrs. Legarda could not bequeath in her holographic will to her grandchildren to the exclusion of her three daughters and her three sons. (See Paz v Madrigal, 100 Phil 1085)

As already stated, the lower court dismissed the action of Mrs. Gonzales. In this appeal under Republic Act No. 5440 she contends in her six assignments of error that the lower court erred in not regarding the properties in question as reservable properties under article 891 of the Civil Code.

On the other hand, defendants-appellees in their six counter-assignments of error contend that the lower court erred in not holding that Mrs. Legarda acquired the estate of her daughter Filomena Legarda in exchange for her conjugal and hereditary shares in the estate of her husband Benito Legarda y de la Paz and in not holding that Mrs. Gonzales waived her right to the reservable properties and that her claim is barred by estoppel, laches and prescription.

x x x

In an appeal under Republic Act No. 5440 only legal issues can be raised under undisputed facts. Since on the basis of the stipulated facts the lower court resolved only the issue of whether the properties in question are subject to reserva troncal, that is the only legal issue to be resolved in this appeal.

x x x

The question is whether the disputed properties are reservable properties under article 891 of the Civil Code, formerly article 811, and whether Filomena Roces vda. de Legarda could dispose of them in her will in favor of her grandchildren to the exclusion of her six children.

Did Mrs. Legarda have the right to convey mortis causa what she inherited

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from her daughter Filomena to the reservees within the third degree and to bypass the reservees in the second degree or should that inheritance automatically go to the reservees in the second degree, the six children of Mrs. Legarda?

As will hereinafter be shown that is not a novel issue or a question of first impression. It was resolved in Florentino v Florentino, 40 Phil 480. Before discussing the applicability to this case of the doctrine in the Florentino case and other pertinent rulings, it may be useful to make a brief discourse on the nature of reserva troncal, also called lineal, familiar, extraordinaria or semi-troncal.

Much time, effort and energy were spent by the parties in their five briefs in descanting on the nature of reserva troncal which together with the reserva viudal and reversion legal, was abolished by the Code Commission to prevent the decedent's estate from being entailed, to eliminate the uncertainty in ownership caused by the reservation (which uncertainty impedes the improvement of the reservable property) and to discourage the confinement of property within a certain family for generations which situation allegedly leads to economic oligarchy and is incompatible with the socialization of ownership.

The Code Commission regarded the reservas as remnants of feudalism which fomented agrarian unrest. Moreover, the reservas, insofar as they penalize legitimate relationship, is considered unjust and inequitable.

However, the lawmaking body, not agreeing entirely with the Code Commission, restored the reserva troncal, a legal institution which, according to Manresa and Castan Tobenas, has provoked questions and doubts that are difficult to resolve.

x x x

In reserva troncal, (1) a descendant inherited or acquired by gratuitous title property from an ascendant or from a brother or sister; (2) the same property is inherited by another ascendant or is acquired by him by operation of law from the said descendant; and (3) the said ascendant should reserve the said property for the benefit of relatives who are within the third degree from the deceased descendant (prepositus) and who belong to the line from which the said property came.

So, three transmissions are involved: (1) a first transmission by lucrative title (inheritance or donation) from an ascendant or brother or sister to the deceased descendant; (2) a posterior transmission, by operation of law (intestate succession or legitime) from the deceased descendant (causante de la reserva) in favor of another ascendant, the reservor or reservista, which two transmissions precede the reservation, and (3) a third transmission of the same property (in consequence of the reservation) from the reservor to the reservees (reservatarios) or the relatives within the third degree from the deceased descendant belonging to the line of the first ascendant, brother or sister of the deceased descendant (6 Castan Tobenas, Derecho Civil, Part I, 1969, 6d., pp.198-199).

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If there are only two transmissions there is no reserva. Thus, where one Bonifacia Lacerna died and her properties were inherited by her son, Juan Marbebe, upon the death of Juan, those lands should be inherited by his half-sister, to the exclusion of his maternal first cousins. The said lands are not reservable property within the meaning of article 811. (Lacerna v vda. de Corcino, 111 Phil 872)

The persons involved in reserva troncal are (1) the ascendant or brother or sister from whom the property was received by the descendant by lucrative or gratuitous title, (2) the descendant or prepositus (propositus) who received the property, (3) the reservor (reservista), the other ascendant who obtained the property from the prepositus by operation of law, and (4) the reservee (reservatario) who is within the third degree from the prepositus and who belong to the line (linea or tronco) from which the property came and for whom the property should be reserved by the reservor.

The reservees may be half-brothers and sisters (Rodriguez v Rodriguez, 101 Phil 1098; Chua v Court of First Instance of Negros Occidental, L-29901, August 31, 1977, 78 SCRA 412). Fourth degree relatives are not included. (Jardin v Villamayor, 72 Phil 392)

The rationale of reserva troncal is to avoid "el peligro de que bienes poseidos secularmente por una familia pasen bruscamente a titulo gratuito a manos extranas por el azar de los enlaces y muertes prematuras" or "impedir que, por un azar de la vida, personas extranas a una familia puedan adquirir bienes que sin aquel hubieran quedado en ella." (6 Castan Tobenas, Derecho Civil, Part I, 6d., 1980, p. 203; Padura v Baldovino, 104 Phil 1065)

An illustration of reserva troncal is found in Edroso v Sablan, 25 Phil 295. In that case, Pedro Sablan inherited two parcels of land from his father, Victoriano. Pedro died in 1902, single and without issue. His mother, Marcelina Edroso, inherited from his the two parcels of land.

It was held that the land was reservable property in the hands of Marcelina. The reservees were Pablo Sablan and Basilio Sablan, the paternal uncles of Pedro Sablan, the prepositus. Marcelina could register the land under the Torrens system in her name but the fact that the land was reservable property in favor of her two brothers-in-law, should they survive, should be noted in the title.

In another case, it appears that Maria Aglibot died intestate in 1906. Her one-half share of a parcel of conjugal land was inherited by her daughter, Juliana Manalac. When Juliana died intestate in 1920, said one-half share was inherited by her father, Anacleto Manalac who owned the other one-half portion.

Anacleto died intestate in 1942, survived by his second wife and their six children. It was held that the said one-half portion was reservable property in the hands of Anacleto Manalac and, upon his death, should be inherited by Leona Aglibot

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and Evarista Aglibot, sisters of Maria and maternal aunts of Juliana Manalac, who belonged to the line from which said one-half portion came. (Aglibot v Manalac, 114 Phil 964)

Other illustrations of reserva troncal are found in Florentino v Florentino, 40 Phil 480; Nieva and Alcala v Alcala and Deocampo, 41 Phil 915; Maghirang and Gutierrez v Balcita, 46 Phil 551; Lunsod v Ortega, 46 Phil 664; Dizon v Galang, 48 Phil 601; Riosa v Rocha, 48 Phil 737; Centeno v Centeno, 52 Phil 322; Velayo Bernardo v Siojo, 58 Phil 89; Director of Lands v Aguas, 63 Phil 279; Fallorfina v Abille, CA 39 O.G. 1784.

The person from whom the degree should be reckoned is the descendant, or the one at the end of the line from which the property came and upon whom the property last revolved by descent. He is called the prepositus. (Cabardo v Villanueva, 44 Phil 186, 190)

In the Cabardo case, one Cornelia Abordo inherited property from her mother, Basilia Cabardo. When Cornelia died, her estate passed to her father, Lorenzo Abordo. In his hands, the property was reservable property. Upon the death of Lorenzo, the person entitled to the property was Rosa Cabardo, a maternal aunt of Cornelia, who was her nearest relative within the third degree.

First cousins of the prepositus are in the fourth degree and are not reservees. They cannot even represent their parents because representation is confined to relatives within the third degree. (Florentino v Florentino, 40 Phil 480)

Within the third degree, the nearest relatives exclude the more remote, subject to the rule of representation. But the representative should be within the third degree from the prepositus. (Padura v Baldovino, 104 Phil 1065)

Reserva troncal contemplates legitimate relationship. Illegitimate relationship and relationship by affinity are excluded.

Gratuitous title or titulo lucrativo refers to a transmission wherein the recipient gives nothing in return such as donation and succession. (Cabardo v Villanueva, 44 Phil 186, 189-190, citing 6 Manresa, Codigo Civil, 7d., 1951, p. 360.)

The reserva creates two resolutory conditions, namely, (1) the death of the ascendant obliged to reserve and (2) the survival, at the time of his death, of relatives within the third degree belonging to the line from which the property came. (Sienes v Esparcia, 111 Phil 349, 353)

The reservor has the legal title and dominion to the reservable property but subject to the resolutory condition that such title is extinguished if the reservor predeceased the reservee. The reservor is a usufructuary of the reservable property. He may alienate it subject to the reservation. The transferee gets the revocable and conditional ownership of the reservor. The transferee's rights are revoked upon the

436

survival of the reservees at the time of the death of the reservor, but become indefeasible when the reservees predecease the reservor. (Sienes v Esparcia, 111 Phil 349, 353; Edroso v Sablan, 25 Phil 295; Lunsod v Ortega, 46 Phil 664; Florentino v Florentino, 40 Phil 480; Director of Lands v Aguas, 63 Phil 279.)

The reservor's title has been compared with that of the vendee a retro in a pacto de retro sale or to a fideicomiso condicional.

The reservor's alienation of the reservable property is subject to a resolutory condition, meaning that if at the time of the reservor's death, there are reservees, the transferee of the property should deliver it to the reservees. If there are no reservees at the time of the reservor's death, the transferee's title would become absolute. (Lunsod v Ortega, 46 Phil 664; Gueco v Lacson, 118 Phil 944; Nono v Nequia, 93 Phil 120.)

On the other hand, the reservees has only an inchoate, expectant or contingent right. His expectant right would disappear if he predeceased the reservor. It would become absolute should the reservor predecease the reservee.

The reservee cannot impugn any conveyance made by the reservor but he can require that the reservable character of the property be recognized by the purchaser. (Riosa v Rocha, 48 Phil 737; Edroso v Sablan, 25 Phil 295, 312-3; Gueco v Lacson, 118 Phil 944.)

There is a holding that the renunciation of the reservee's right to the reservable property is illegal for being a contract regarding future inheritance. (Velayo Bernardo v Siojo, 58 Phil 89, 96.)

"The reservatario receives the property as a conditional heir of the descendant (prepositus), said property merely reverting to the line of origin from which it had temporarily and accidentally strayed during the reservista's lifetime. The authorities are all agreed that there being reservatarios that survive the reservista, the latter must be deemed to have enjoyed no more than a life interest in the reservable property." (J.B.L. Reyes, in Cano v Director of Lands, 105 Phil 1, 5.)

"Even during the reservista's lifetime, the reservatarios, who are the ultimate acquirers of the property, can already assert the right to prevent the reservista from doing anything that might frustrate their reversionary right, and, for this purpose, they can compel the annotation of their right in the registry of property even while the reservista is alive." (Ley Hipotecaria de Ultramar, Arts. 168, 199; Edroso v Sablan, 25 Phil 295.)

"This right is incompatible with the mere expectancy that corresponds to the natural heirs of the reservista. It is likewise clear that the reservable property is no part of the estate of the reservista who may not dispose of them (it) by will, so long as there are reservatarios existing." (Arroyo v Gerona, 58 Phil 226, 237)

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"The latter, therefore, do not inherit from the reservista but from the descendant prepositus, of whom the reservatarios are the heirs mortis causa, subject to the condition that they must survive the reservista." (Sanchez Roman, Vol VI., Tomo 2, p. 286; Manresa, Commentaries, Vol. 6, 6d., pp. 274, 310 cited by J. B. L. Reyes in Padura v Baldovino, L-11960, December 27, 1958, 104 Phil 1065.)

Hence, upon the reservista's death, the reservatario nearest to the prepositus becomes, "automatically and by operation of law, the owner of the reservable property." (Cano v Director of Lands, 105 Phil 1, 5.)

In the instant case, the properties in question were indubitably reservable properties in the hands of Mrs. Legarda. Undoubtedly, she was a reservor. The reservation became a certainty when at the time of her death the reservees or relatives within the third degree of the prepositus Filomena Legarda were living or they survived Mrs. Legarda.

So, the ultimate issue in this case is whether Mrs. Legarda, as reservor, could convey the reservable properties by will or mortis causa to the reservees within the third degree (her sixteen grandchildren) to the exclusion of the reservees in the second degree, her three daughters and three sons.

As indicated at the outset, that issue is already res judicata or cosa juzgada.

We hold that Mrs. Legarda could not convey in her holographic will to her sixteen grandchildren the reservable properties which she had inherited from her daughter Filomena because the reservable properties did not form part of her estate (Cabardo v Villanueva, 44 Phil 186, 191). The reservor cannot make a disposition mortis causa of the reservable properties as long as the reservees survive the reservor.

As repeatedly held in the Cano and Padura cases, the reservees inherit the reservable properties from the prepositus, not from the reservor.

Article 891 clearly indicates that the reservable properties should be inherited by all the nearest relatives within the third degree from the prepositus who in this case are the six children of Mrs. Legarda. She could not select the reservees to whom the reservable property should be given and deprive the other reservees of their share therein.

To allow the reservor in this case to make a testamentary disposition of the reservable properties in favor of the reservees in the third degree and, consequently, to ignore the reservees in the second degree would be a glaring violation of article 891. That testamentary disposition cannot be allowed.

We have stated earlier that this case is governed by the doctrine of Florentino v Florentino, 40 Phil 480, a similar case, where it was ruled:

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Reservable property left, through a will or otherwise, by the death of ascendant (reservista) together with his own property in favor of another of his descendants as forced heir, forms no part of the latter's lawful inheritance nor of the legitime, for the reason that, as said property continued to be reservable, the heir receiving the same as an inheritance from his ascendant has the strict obligation of its delivery to the relatives, within the third degree, of the predecessor in interest (prepositus), without prejudicing the right of the heir to an aliquot part of the property, if he has at the same time the right of a reservatario (reservee).

In the Florentino case, it appears that Apolonio Florentino II and his second wife Severina Faz de Leon begot two children, Mercedes and Apolonio III. These two inherited properties from their father. Upon Apolonio III's death in 1891, his properties were inherited by his mother, Severina, who died in 1908. In her will, she instituted her daughter Mercedes as heiress to all her properties, including those coming from her deceased husband through their son, Apolonio III.

The surviving children, begotten by Apolonio II with his first wife Antonia Faz de Leon and the descendants of the deceased children of his first marriage, sued Mercedes Florentino for the recovery of their share in the reservable properties, which Severina Faz de Leon had inherited from Apolonio III, which the latter had inherited from his father Apolonio II and which Severina willed to her daughter Mercedes.

Plaintiff's theory was that the said properties, as reservable properties, could not be disposed of in Severina's will in favor of Mercedes only. That theory was sustained by this Court.

It was held that the said properties, being reservable properties, did not form part of Severina's estate and could not be inherited from her by her daughter Mercedes alone.

As there were seven reservees, Mercedes was entitled, as a reservee, to one-seventh of the properties. The other six-sevenths portions were adjudicated to the other six reservees.

Under the rule of stare decisis et non quieta movere, we are bound to follow in this case the doctrine of the Florentino case. That doctrine means that as long as during the reservor's lifetime and upon his death there are relatives within the third degree of the prepositus, regardless of whether those reservees are common descendants of the reservor and the ascendant from whom the property came, the property retains its reservable character. The property should go to the nearest reservees. The reservor cannot, by means of his will, choose the reservee to whom the reservable property should be awarded.

The alleged opinion of Sanchez Roman that there is no reserva troncal when the only relatives within the third degree are the common descendants of the predeceased ascendant and the ascendant who would be obliged to reserve, is irrelevant and sans binding force in the light of the ruling in the Florentino case.

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It is contended by the appellees herein that the properties in question are not reservable properties because only relatives within the third degree from the paternal lines have survived and that when Mrs. Legarda willed the said properties to her sixteen grandchildren. who are third-degree relatives of Filomena Legarda and who belong to the paternal line, the reason for the reserva troncal has been satisfied: "to prevent persons outside a family from securing, by some special accident of life, property that would otherwise have remained therein."

That same contention was advanced in the Florentino case where the reservor willed the reservable properties to her daughter, a full-blood sister of the prepositus and ignored the other six reservors, the relatives of the half-blood of the prepositus.

In rejecting that contention, this Court held that the reservable property bequeathed by the reservor to her daughter does not form part of the reservor's estate nor of the daughter's estate but should be given to all the seven reservees or nearest relatives of the prepositus within the third degree.

This Court noted that, while it is true that by giving the reservable property to only one reservee it did not pass into the hands of strangers, nevertheless, it is likewise true that the heiress of the reservor was only one of the reservees and there is no reason founded upon law and justice why the other reservees should be deprived of their shares in the reservable property.

Applying that doctrine to this case, it results that Mrs. Legarda could not dispose of in her will the properties in question even if the disposition is in favor of the relatives within the third degree from Filomena Legarda. The said properties, by operation of Article 891, should go to Mrs. Legarda's six children as reservees within the second degree from Filomena Legarda.

It should be repeated that the reservees do not inherit from the reservor but from the prepositus, of whom the reservees are the heirs mortis causa subject to the condition that they must survive the reservor. (Padura v Baldovino, L-11960, December 27, 1958, 104 Phil 1065.)

The trial court said that the disputed properties lost their reservable character due to the non-existence of third degree relatives of Filomena Legarda at the time of the death of the reservor, Mrs. Legarda, belonging to the Legarda Family, "except third degree relatives who pertain to both" the Legarda and Roces lines.

That holding is erroneous. The reservation could have been extinguished only by the absence of reservees at the time of Mrs. Legarda's death. Since at the time of her death, there were (and still are) reservees belonging to the second and third degrees, the disputed properties did not lose their reservable character. The disposition of the said properties should be made in accordance with article 891 or the rule on reserva troncal and not in accordance with the reservor's holographic will. The said properties did not form part of Mrs. Legarda's estate. (Cano v Director of Lands,

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105 Phil 1, 4.)

WHEREFORE, the lower court's decision is reversed and set aside. It is hereby adjudged that the properties inherited by Filomena Roces vda. de Legarda from her daughter Filomena Legarda, with all the fruits and accessions thereof, are reservable properties which belong to Beatriz, Rosario, Teresa, Benito, Alejandro and Jose, all surnamed Legarda y Roces, as reservees. The shares of Rosario L. Valdez and Benito F. Legarda, who died in 1969 and 1973 respectively, should pertain to their respective heirs. Costs against the private respondents.

SO ORDERED.

Barredo, Guerrero, Abad Santos, and de Castro, JJ., concur. Justice Concepcion, Jr. is on leave; Justice Guerrero was designated to sit in the Second Division.

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DE PAPA v CAMACHONo. L-28032, 24 September 1986

144 SCRA 281

Between two groups of reservatarios: (a) uncles and aunts of the prepositus, and (b) a niece of the prepositus, the latter is preferred to the exclusion of the former in the distribution of the reversionary estate. This is pursuant to the application of the ordinary rules of intestate succession which govern the distribution of the reversionary estate. Please note that brothers, sisters, nephews and nieces rank fourth in the order of intestate succession to a legitimate person. Upon the other hand, the uncles and aunts (collectively referred to as collateral relatives within the fifth civil degree) rank fifth in the order of intestate succession to a legitimate person. Thus, following the order of preference, those who rank fourth will exclude all those relatives who rank fifth. Again, this is a reaffirmation of the theory of delayed intestacy first initiated in Padura.

Marciana Balbino . . . . . Romana

Francisca Manuel Nicolas

Eustacio Toribia

Faustino Trinidad

Dalisay

Narvasa, J.:

This case, which involves the application of Article 891 of the Civil Code on reserva troncal, was submitted for judgment in the lower court by all the parties on the following "Stipulation of Facts and Partial Compromise:"

1. They stipulate that the defendant Dalisay D. Tongko-Camacho and the plaintiffs Francisca Tioco de Papa, Manuel Tioco and Nicolas Tioco are legitimate relatives, plaintiffs being said defendant's grandaunt and granduncles.

2. They stipulate that plaintiffs and defendant Dalisay D. Tongko-Camacho have as a common ancestor the late Balbino Tioco (who had a sister by the name of Romana Tioco), father of plaintiffs and great grandfather of defendant. The family relationship of the parties is shown in the chart attached hereto as Annex "A" and made an integral part of this stipulation.

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3. They stipulate that Romana Tioco during her lifetime gratuitously donated four (4) parcels of land to her niece Toribia Tioco (legitimate sister of plaintiffs), which parcels of land are presently covered by Transfer Certificates of Title Nos. A-64165, 64166 and 64167 of the Registry of Deeds of Manila, copies of which are attached to this stipulation as Annexes "B", "B-1", and "B-2."

4. They stipulate that Toribia Tioco died intestate in 1915, survived by her husband, Eustacio Dizon, and their two legitimate children, Faustino Dizon and Trinidad Dizon (mother of defendant Dalisay D. Tongko-Camacho) and leaving the aforementioned four (4) parcels of land as the inheritance of her said two children in equal pro-indiviso shares.

5. They stipulate that in 1928, Balbino Tioco died intestate, survived by his legitimate children and by his wife Marciana Felix (among them plaintiffs) and legitimate grandchildren Faustino Dizon and Trinidad Dizon. In the partition of his estate, three (3) parcels of land now covered by Transfer Certificates of Title Nos. 16545 and 16554 of the Registry of Deeds of Manila, copies of which are attached hereto as Annexes "C' and "C-1" were adjudicated as the inheritance of the late Toribia Tioco, but as she had predeceased her father, Balbino Tioco, the said three (3) parcels of land devolved upon her two legitimate children Faustino Dizon and Trinidad Dizon in equal pro-indiviso shares.

6. They stipulate that in 1937, Faustino Dizon died intestate, single and without issue, leaving his one-half (1/2) pro-indiviso share in the seven (7) parcels of land abovementioned to his father, Eustacio Dizon, as his sole intestate heir, who received the said property subject to a reserva troncal which was subsequently annotated on the Transfer Certificates of Title Annexes "B", "B-1", "C" and "C-1."

7. They stipulate that in 1939 Trinidad Dizon-Tongko died intestate, and her rights and interests in the parcels of land above-mentioned were inherited by her only legitimate child, defendant Dalisay D. Tongko-Camacho, subject to the usufructuary right of her surviving husband, defendant Primo Tongko.

8. They stipulate that on June 14, 1965, Eustacio Dizon died intestate, survived by his only legitimate descendant, defendant Dalisay D. Tongko-Camacho.

9. The parties agree that defendant Dalisay D. Tongko-Camacho now owns one-half (1/2) of all the seven (7) parcels of land abovementioned as her inheritance from her mother, Trinidad Dizon-Tongko.

10. Defendant Dalisay D. Tongko-Camacho also claims, upon legal advice, the other half of the said seven parcels of land abovementioned by virtue of the reserva troncal imposed thereon upon the death of Faustino Dizon and under the law on intestate succession; but the plaintiffs, also upon legal advice,

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oppose her said claim because they claim three-fourths (3/4) of the one-half pro-indiviso interest in said parcel of land, which interest was inherited by Eustacio Dizon from Faustino Dizon, or three-eights (3/8) of the said parcels of land, by virtue of their being also third degree relatives of Faustino Dizon.

11. The parties hereby agree to submit for judicial determination in this case the legal issue of whether defendant Dalisay D. Tongko-Camacho is entitled to the whole of the seven (7) parcels of land in question, or whether the plaintiffs, as third degree relatives of Faustino Dizon are reservatarios (together with said defendant) of the one-half pro-indiviso share therein which was inherited by Eustacio Dizon from his son Faustino Dizon, and entitled to three-fourths (3/4) of said one-half pro-indiviso share, or three-eights (3/8) of said seven (7) parcels of land, and, therefore, to three-eights (3/8) of the rentals collected and to be collected by defendant Dalisay D. Tongko-Camacho from the tenants of said parcels of land, minus the expenses and/or real estate taxes corresponding to plaintiffs' share in the rentals.

12. In view of the fact that the parties are close blood relatives and have acted upon legal advice in pursuing their respective claims, and in order to restore and preserve harmony in their family relations, they hereby waive all their claims against each other for damages (other than legal interest on plaintiffs' share in the rentals which this Honorable Court may deem proper to award), attorney's fees and expenses of litigation which shall be borne by the respective parties.

On the basis thereof, the lower court declared the plaintiffs Francisco Tioco, Manuel Tioco and Nicolas Tioco, as well as the defendant Dalisay D. Tongko-Camacho, entitled, as reservatarios, in equal proportions, rendering judgment as follows:

x x x Resolving, therefore, the legal question submitted by the parties, the court holds that plaintiffs Francisca Tioco, Manuel Tioco and Nicolas Tioco are entitled to three-fourths (3/4) of one-half (1/2) pro-indiviso shares or three-eights (3/8) of the seven (7) parcels of land involved in this action. Consequently, they are, likewise, entitled to three-eights (3/8) of the rentals collected and to be collected by the defendant Dalisay D. Tongko-Camacho from the tenants of the said parcels of land, minus the expenses and/or real estate taxes corresponding to plaintiffs' share in the rentals.

IN VIEW OF THE FOREGOING, and inasmuch as the parties expressly waived all their claims against each other for damages including attorney's fees and expenses of litigation other than the legal interest on plaintiffs' share in the rentals, the court renders judgment adjudging the plaintiffs entitled to three-eights (3/8) of the seven (7) parcels of land described in Transfer Certificates of Title Nos. T-64165, T-64166, T-64167, T-16546 and T-16554 of the Registry of Deeds of Manila. The defendant Dalisay D. Tongko-Camacho is hereby ordered to make an accounting of all rents received by her on the properties involved in this action for the purpose of determining the legal interest which should be paid to the plaintiffs on their

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shares in the rentals of the property in question.

SO ORDERED.

Not satisfied, the defendant appealed to this Court.

The issue raised is whether, as contended by the plaintiffs-appellees and ruled by the lower court, all relatives of the prepositus within the third degree in the appropriate line succeed without distinction to the reservable property upon the death of the reservista, as seems to be implicit in Art. 891 of the Civil Code which reads:

x x x

or, as asserted by the defendant-appellant, the rights of said relatives are subject to, and should be determined by, the rules on intestate succession.

That question has already been answered in Padura v Baldovino where the reservatario was survived by eleven nephews and nieces of the prepositus in the line of origin, four of whole blood and seven of half blood, and the claim was also made that all eleven were entitled to the reversionary property in equal shares. This Court, speaking through Mr. Justice J.B.L. Reyes, declared the principles of intestacy to be controlling and ruled that the nephews and nieces of whole blood were each entitled to a share double that of each of the nephews and nieces of half blood in accordance with Article 1006 of the Civil Code. Said the Court:

x x x

The stated purpose of the reserva is accomplished once the property has devolved to the specified relatives of the line of origin. But from this time on, there is no further occasion for its application. In the relations between one reservatario and another of the same degree, there is no call for applying Art. 891 any longer; wherefore, the respective share of each in the reversionary property should be governed by the rules of intestate succession. In this spirit, the jurisprudence of this court and that of Spain has resolved that upon the death of the ascendant reservista, the reservable property should pass, not to all the reservatarios as a class, but only to those nearest in degree to the descendant (prepositus), excluding those reservatarios of more remote degree. And within the third degree of relationship from the descendant (prepositus), the right of representation operates in favor of nephews.

Following the order prescribed by law in legitimate succession, when there are relatives of the descendant within the third degree, the right of the nearest relative, called reservatario, over the property which the reservista (person holding it subject to reservation) should return to him, excludes that of the one more remote. The right of representation cannot be alleged when the one claiming same as a reservatario of the reservable property is not among the relatives within the third degree belonging to the line from which such property came, inasmuch as the right granted by the Civil Code in Article 811 is in the highest degree personal and for the exclusive benefit of designated

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persons who are within the third degree of the person from whom the reservable property came. Therefore, relatives of the fourth and succeeding degrees can never be considered as reservatarios, since the law does not recognize them as such.

In spite of what has been said relative to the right of representation on the part of one alleging his rights as reservatario who is not within the third degree of relationship, nevertheless there is right of representation on the part of reservatarios who are within the third degree mentioned by law, as in the case of nephews of the deceased person from whom the reservable property came. x x x

Proximity of degree and right of representation are basic principles of ordinary intestate succession; so is the rule that whole blood brothers and nephews are entitled to a share double that of brothers and nephews of half blood. If in determining the rights of the reservatarios inter se, proximity of degree and the right of representation of nephews are made to apply, the rule of double share for immediate collaterals of the whole blood should likewise be operative.

In other words, the reserva troncal merely determines the group of relatives (reservatarios) to whom the property should be returned; but within that group, the individual right to the property should be decided by the applicable rules of ordinary intestate succession, since Art. 891 does not specify otherwise. x x x

Reversion of the reservable property being governed by the rules on intestate succession, the plaintiffs-appellees must be held without any right thereto because, as aunts and uncles, respectively, of Faustino Dizon (the prepositus), they are excluded from the succession by his niece, the defendant-appellant, although they are related to him within the same degree as the latter. x x x

Upon the stipulated facts, and by virtue of the rulings already cited, the defendant-appellant Dalisay Tongko-Camacho is entitled to the entirety of the reversionary property to the exclusion of the plaintiffs-appellees.

WHEREFORE, the appealed judgment of the lower court is reversed and set aside, and the complaint is dismissed with costs against plaintiffs-appellees.

Melencio-Herrera, Cruz, Paras and Feliciano, JJ., concur. Yap, J., took no part.

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CARILLO v DE PAZNo. L-22601, 28 October 1966

18 SCRA 467

Carillo establishes that the rights of a reservatario to the reservable property may be lost by extinctive prescription. Thus a reservatario must institute action to recover the reservable property either within ten or thirty years from the time the right to recover the same accrued. In this case, it must be noted that the ten-year prescriptive period applied on the premise that the possessor of the reservable property was a possessor in good faith and with a colorable title to the same.

Bengzon, J.P., J.:

This is an appeal from the order of the Court of First Instance of Tarlac dismissing a suit to recover ownership and possession of 2/3 of 1/2 of Lot No. 221 of the Cadastral Survey of Tarlac.

Severino Salak and Petra Garcia were the owners of Lot No. 221 of the Cadastral Survey of Tarlac, covered by Original Certificate of Title No. 41543, with an area of 1,334 square meters. Petra Garcia died on September 21, 1941. On August 16, 1943, Severino Salak sold to Honoria Salak for P812.00 his 1/2 portion of said lot. A year later, on December 5, 1944, Severino Salak died. Sometime in January 1945, Honoria Salak and other members of her family died - massacred by the Japanese.

As a result, two settlement proceedings were instituted in the Court of First Instance of Tarlac: (1) Special Proceeding No. 3, to settle the estate of Severino Salak and Petra Garcia, and (2) Special Proceeding No. 23, to settle the estates of the Salak family (parent Simeon Salak and Isabel Carillo; and children Adolfo, Honoria, Consuelo and Ligaya).

On September 4, 1946, a Project of Partition was submitted in Special Proceeding No. 3, which the court approved on November 19, 1946. Said project adjudicated inter alia, Lot No. 221, which was given thereunder to Francisca Salak de Paz (1/4 of it in her capacity as heir, and the other 3/4 by purchase and/or exchange with her co-heirs, Rita Sahagun, Aurea Sahagun and Ernesto Bautista). From 1946 up to the present, Francisca Salak has possessed all of Lot No. 221.

On the other hand, in Special Proceeding No. 23, on February 26, 1948, the court a quo held that the heirs entitled to the estates of the Salak family were Agustina de Guzman vda. de Carillo (3/4 share) and Ernesto Bautista (1/4 share), applying the survivorship presumption, (Rule 123, Sec. 69 (ii), now Rule 131, Sec. 5(jj) of the Rules of Court) thus: (1) Simeon Salak died first - his properties went to the children Adolfo, Honoria, Consuelo and Ligaya (1/4 each); (2) Honoria, Consuelo and Ligaya died next - Honoria's and Consuelo's properties went to their mother Isabel; those of Ligaya went to her son, Ernesto Bautista; (3) Isabel died next - her properties went to her son Adolfo; and (4) Adolfo died last - his properties went to his maternal grandmother, Agustina. Agustina thereby succeeded to the properties that came by intestate

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succession from Honoria Salak and Isabel Carillo, including 1/2 of Lot No. 221.

On November 9, 1948, Agustina de Guzman vda. de Carillo filed an action in the Court of First Instance of Tarlac (docketed therein as Case No. 351) against the heirs in Special Proceedings No. 3 to recover 1/2 of Lot No. 221 which as aforementioned has been possessed by Francisca Salak de Paz.

On April 24, 1950, Agustina died.

On June 8, 1950 the Court of Appeals affirmed the decision of the Court of First Instance of Tarlac in Special Proceeding No. 23, and further decreed that the properties inherited by Agustina de Guzman vda. de Carillo were subject to reserva troncal.

On November 6, 1950, Ernesto Bautista filed a petition in Special Proceeding No. 23 for the execution of the judgment therein. Said petition was heard on November 10, 1959, after a copy was served on the lawyer of Prima Carillo, the latter being a party thereto as administratrix of the estate of her deceased mother Agustina. Acting on said petition, the lower court issued its order of November 14, 1950, which reads in part:

x x x the Court, in view of the death of the reservista, Doña Agustina de Guzman vda. de Carillo, declares all the interest of the said reservista Doña Agustina de Guzman vda. de Carillo, as well as that of her heirs in the three-fourths share adjudged to the reservista, definitely terminated, and that the reservee, the minor Ernesto Bautista, is entitled to the immediate delivery to him of the said three-fourths share declared reserved to him in the decision of the Court of Appeals of June 8, 1950. x x x

On December 20, 1960, the lower court dismissed Civil Case No. 351. The order of dismissal reads in part:

By virtue of the existence of third-degree relatives of Adolfo Salak, the portion of Lot No. 221, inherited by Agustina de Guzman was never released from the reserva, so as to convert the ownership of Agustina de Guzman into an absolute one. Upon her death on April 24, 1950, therefore, the property did not pass by inheritance to her legal heirs, but rather reverted to the family trunk of the Isabel-Adolfo line. Such being the case, the estate of Agustina de Guzman, the present plaintiff in this case, has no cause of action against the defendants.

In resume, the adjudication in Special Proceeding No. 23, Intestate Estate of the late Simeon Salak and Isabel Carillo, which included Lot No. 221, has become res judicata which cannot be disturbed in this case.

On April 22, 1963, Prima Carillo and Lorenzo Licup filed the present suit for recovery of 2/3 of 1/2 of Lot No. 221 against Francisca Salak de Paz and Ernesto Bautista.

448

x x x

On November 19, 1963, the court a quo dismissed the complaint on the ground of res judicata, finding the suit barred by the order of delivery dated November 14, 1950 in Special Proceeding No. 23.

Plaintiffs Prima Carillo and Lorenzo Licup thereupon appealed to Us upon questions of law.

x x x

Reserva troncal in this jurisdiction is treated in Article 891 of the new Civil Code and Article 811 of the old Civil Code, which states:

x x x

According to Manresa, the reserva is extinguished upon the death of the reservista, as it then becomes a right of full ownership on the part of the reservatarios, who can bring a reivindicatory suit therefor. Nonetheless, this right, if not exercised within the time for recovering real properties, can be lost by prescription.

Pero extinguida la reserva por la muerte del reservista, cambian por completo las relaciones y condiciones juridicas de las personas y de las cosas, como ya se ha indicado. La obligacion de reserver se convierte en la de entregar los bienes a quien correspondan, obligacion que pasa a la herencia del reservista fallecido y deben complir sus herederos. Y el derecho a la reserva se convierte en el derecho al dominio pleno de esos bienes. Si a la muerte del reservista se comple la condicion resolutoria de existir parientes dentro del tercer grado que pertenezcan a la linea de donde los bienes proceden, a estos parientes pasa desde aquel momento por ministerio de la ley el dominio absoluto de aquellos bienes, y, por consiguiente, el derecho para reclamarlos, pudiendo disponer libremente de aquellos o de este, y transmitirlos a sus herederos, puesto que la ley no lo prohibe. Y si no sobrevive al reservista ninguno de dichos parientes, queda extinguida la obligacion de reservar, por no haberse complido aquella condicion resolutoria impuesta por la ley, y en su virtud vuelven los bienes al pleno dominio del ascendiente, y pertenecen a su herencia conforme al art. 651. Y como nada ordena la ley en sentido contrario, tenemos por indudable que no tiene el caracter de personalisimo ninguno de esos derechos, que nacen con la extincion de la reserva, pertenecen a la herencia y se transmiten a los herederos, aunque el causante no los hubiere ejercitado por si mismo, salvo casos de renuncia, incapacidad o prescripcion.

x x x

C) Extincion de la reserva. - Las mismas condiciones exigidas para el nacimiento de la reserva son necesarias para su existencia. Al faltar una de ellas, la reserva muere. Tres son, por tanto, las principales causes de extincion:

1.a Muerte del ascendiente. - Sea el que quiera el destino definitivo de

449

los bienes, en virtud de la naturaleza condicional de los derechos que crea el art. 811, es lo cierto que la reserva, como tal, una vez necida, acompana al ascendiente obligado a ella hasta su muerte. Muerto el ascendiente, cesa toda obligacion de reservar; falta el sujeto pasivo de la reserva.

x x x

Ademas de las tres causas expresadas, pueden sanalarse otras que expondremos a continuacion.

x x x

5.a La prescripcion, si se disfrutan como libres los bienes los herederos del ascediente durante el tiempo y con las condiciones marcadas por la ley. (Manresa, Comentarios Al Codigo Civil Espanol, Vol. 6, 1911 Ed., pp. 288-289, 316-318)

Scaevola also states the view that prescripion can apply against the reservatarios to cut off their right to the reservable property:

f) Prescripcion. - Este modo extintivo de los derechos tiene solo aplicacion a los parientes del tercer grado del descendiente, porque no habiendo reserva si no acepta el ascendiente, no hay que hablar de prescripcion extintiva respecto de el.

Tocante a los parientes con derecho a la reserva, es aplicable la doctrina, porque pueden no ejercer su derecho por ignorar la muerte del descendiente o por otra causa.

Dada esta posibilidad, entendemos que, tratandose de un derecho real sobre bienes inmuebles, prescibira a los treinta anos (art. 1.693)(1), contados desde la aceptacion de la herencia por el ascendiente, momento determinante del derecho al ejercicio de la reserva (art. 1.969); transcurridos, pues, treinta anos desde la aceptacion sin que los parientes favorecidos por la ley hayan solicitado la constitucion de la reserva, se extenguira esta, y el ascendiente o sus derecho-habientes adquiriran el pleno dominio de los bienes reservables por su naturaleza, pero que no fueron objeto de reserva. (Scaevola, Codigo Civil Comentado, Vol. 14, 1944 Ed., p. 360)

Plaintiffs-appellants herein, as reservatarios, had the right to claim the property 2/3 of 1/2 of Lot No. 221 - from Francisca Salak de Paz, who has been possessing it in the concept of an owner, from April 24, 1950 when Agustina died. And the Court of Appeals' decision affirming the existence of reserva troncal, promulgated on June 8, 1950, rendered it all the more doubtless that such right had accrued in their favor from the time Agustina died. It is clear, therefore, that the right or cause of action accrued in favor of the plaintiffs-reservatarios herein on April 24, 1950.

x x x

Plaintiffs-appellants' suit herein having been filed only on April 22, 1963, or

450

more than ten (10) years from April 24, 1950, has prescribed.

And having reached such conclusion, we deem it unnecessary to pass upon the question of whether the suit is also barred on the ground of res judicata.

WHEREFORE, the order of dismissal appealed from is hereby affirmed on the ground of prescription, with costs against appellants. So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ., concur. Barrera, J., is on leave.

451

SUMAYA v INTERMEDIATE APPELLATE COURTG.R. Nos. 68843-44, 2 September 1991

201 SCRA 178

The reversionary rights of the reservees may be lost to an innocent purchaser of the reservable property. For the protection of the said reservees, it is important that the reservable character of the property must be properly annotated at the back of the title thereto. However, even absent such annotation, if it can be shown that the third party purchaser had actual or constructive notice of the reservable character of the property, then the reversionary rights of the reservees shall be upheld.

Luisa

Jose Sr. Consuelo

Raul Amadeo SumayaSancho DonatoLuisErnesto Villa Honoria Dev. Co.+Jose, Jr.

LuisaJoseDolores Agro Industrial Coconut Coop.

Medialdea, J.:

x x x

The parties entered into a stipulation of facts in the court a quo, which is summarized as follows:

Raul Balantakbo inherited from two (2) different ascendants the two (2) sets of properties subject of this case: (1) a one-third (1/3) interest, pro-indiviso in a parcel of land situated in Dita, Lilio (Liliw), Laguna and described in paragraph 7 of the complaint in Civil Case No. SC-956 from his father Jose, Sr., who died on January 28, 1945; and (2) a one-seventh (1/7) interest pro-indiviso in ten (10) parcels of registered lands described in paragraphs 6 of the complaint in Civil Case No. SC-957 from his maternal grandmother, Luisa Bautista, who died on November 3, 1950.

On June 13, 1952, Raul died intestate, single, without any issue, and leaving only his mother, Consuelo Joaquin vda. de Balantakbo, as his sole surviving heir to the real properties above-mentioned.

452

On November 3, 1952, Consuelo adjudicated unto herself the above described properties in an affidavit entitled "Caudal Herederario del Finado Raul Balantakbo" which provided, among others:

I. Que de mi legitimo matrimonio con mi difunto esposo, Jose Balantakbo, he tenido varios hijos, entre ellos si difunto hijo llamado Raul Balantakbo.

II. Que mi referido hijo Raul Balantakbo, fallecio el 13 de Junio de 1952, en la Ciudad de Pasay, durante su minoria de edad sin dejar testamento alguno.

III. Que el finado Raul Balantakbo al morir no ha dejado descendiente alguno.

IV. Que soy la unica ascendiente sobreviviento de mi referido hijo Raul Balantakbo y por lo tanto su unica heredera forzosa, legitima y universal.

V. Que el finado Raul Balantakbo murio sin dejar deuda alguna.

VI. Que el finado al morir dejo propiedades consistentes en bienes inmuebles situados en la Provincia de Laguna.

VII. Que dichas propiedades fueron a su vez adquiridas por el finado Raul Balantakbo per herencia de su difunto padre, Jose Balantakbo, y de su tia abuela Luisa Bautista.

On December 21, 1959, Consuelo Joaquin vda. de Balantakbo sold the property described in Civil Case No. SC-956 to Mariquita H. Sumaya. The sale was evidenced by a deed attached as Annex "C" to the complaint. The same property was subsequently sold by Mariquita Sumaya to Villa Honoria Development Corporation, Inc., on December 30, 1963. On January 23, 1967, Villa Honorio Development Corporation transferred and assigned its rights over the property in favor of Agro-Industrial Coconut Cooperative, Inc. The documents evidencing these transfers were registered in the Registry of Deeds of Laguna and the corresponding certificates of title were issued. The properties are presently in the name of Agro-Industrial Coconut Cooperative, Inc., 2/3 share and the remaining 1/3 share is in the name of Sancho Balantakbo.

Also on December 30, 1963, Consuelo Joaquin vda. de Balantakbo sold the properties described in the complaint in Civil Case No. SC-957 to Villa Honorio Development Corporation, Inc. The latter in turn transferred and assigned all it rights to the properties in favor of Laguna Agro-Industrial Coconut Cooperative, Inc. which properties are presently in its possession.

The parties admit that the certificates of title covering the above described properties do not contain any annotation of its reservable character.

453

On June 3, 1968, Consuelo Joaquin vda. de Balantakbo died.

On March 4, 1970, Amadeo, Sancho, Donato, Luis and Erasto, all surnamed Balantakbo, brothers in full blood of Raul Balantakbo and Luisa, Jose and Dolores, also all surnamed Balantakbo, surviving children of the deceased Jose Balantakbo, Jr., another brother of the first named Balantakbos, filed the above mentioned civil cases to recover the properties described in the respective complaints which they claimed were subject to a reserva troncal in their favor.

x x x

After trial, the court a quo rendered a joint decision in favor of the Balantakbos, x x x.

This decision was appealed to the appellate court which affirmed the decision of the court a quo in toto. The motion for reconsideration was denied by the appellate court which found no cogent reason to reverse the decision.

x x x

Petitioners would want this Court to reverse the findings of the court a quo, which the appellate court affirmed, that they were not innocent purchasers for value. According to petitioners, before they agreed to buy the properties from the reservor, Consuelo Joaquin vda. de Balantakbo, they first sought the legal advice of their family consultant who found that there was no encumbrance nor any lien annotated on the certificate of title covering the properties.

The court a quo found otherwise. Upon the death of the prepositus, Raul Balantakbo, the reservista, Consuelo vda. de Balantakbo caused the registration of an affidavit of self-adjudication of the estate of Raul, wherein it was clearly stated that the properties were inherited by Raul from his father, Jose, Sr., as regards the subject matter of Civil Case No. SC-956 and from his maternal grandmother, Luisa Bautista, as regards the subject matter of Civil Case No. SC-957. The court a quo further ruled that the affidavit was, in its form, declaration and substance, a recording with the Registry of Deeds of the reservable character of the properties. In Spanish language, the affidavit clearly stated that the affiant, Consuelo, was a lone ascendant and heir to Raul Balantakbo, her son, who died leaving properties previously inherited from other ascendants and which properties were inventoried in the said affidavit.

It was admitted that the certificates of title covering the properties in question show that they were free from any liens (sic) and encumbrances (sic) at the time of the sale. The fact remains however, that the affidavit of self-adjudication executed by Consuelo stating the source of the properties thereby showing the reservable nature thereof was registered with the Register of Deeds of Laguna, and this is sufficient notice to the whole world in accordance with Section 52 of the Property Registration Decree (formerly Sec. 51 of R.A. 496) which reads:

454

Sec. 52. Constructive Notice Upon Registration - Every conveyance, mortgage, lease, lien, attachment, order, judgment, instrument or entry affecting registered land shall, if registered, filed or entered in the Office of the Register of Deeds for the province or city where the land to which it relates lies, be constructive notice to all persons from the time of such registering, filing or entering.

x x x

When a conveyance has been properly recorded, such record is constructive notice of its contents and all interests, legal and equitable, included therein x x x.

Under the rule of notice, it is presumed that the purchaser has examined every instrument of record affecting the title. Such presumption is irrebuttable. He is charged with notice of every fact shown by the record and is presumed to know every fact which an examination of the record would have disclosed. This presumption cannot be overcome by proof of innocence or good faith. Otherwise, the very purpose and object of the law requiring a record would be destroyed. Such presumption cannot be defeated by proof of want of knowledge of what the record contains any more than one may be permitted to show that he was ignorant of the provisions of the law. The rule that all persons must take notice of the facts which the public record contains is a rule of law. The rule must be absolute, any variation would lead to endless confusion and useless litigation. x x x.

In the case of Bass v de la Rama, 73 Phil 685, the rule was laid down that the mere entry of a document in the day book without noting it on the certificate of title is not sufficient registration. However, that ruling was superseded by the holding in the later six cases of Levin v Bass, 91 Phil 420. As explained in Garcia v C.A. et al., G.R. Nos. L-48971 and 49011, January 20, 1980, 95 SCRA 380, 388, which is the prevailing doctrine in this jurisdiction:

That ruling was superseded by the holding in the later six cases of Levin v Bass, 91 Phil 420, where a distinction was made between voluntary and involuntary registration, such as the registration of an attachment, levy upon execution, notice of lis pendens, and the like. In cases of involuntary registration, an entry thereof in the daybook is sufficient notice to all persons even if the owner's duplicate certificate of title is not presented to the register of deeds.

On the other hand, according to the said cases of Levin v Bass, in case of voluntary registration of documents an innocent purchaser for value of registered land becomes the registered owner, and, in contemplation of law, the holder of a certificate of title, the moment he presents and files a duly notarized and valid deed of sale and the same is entered in the day book and at the same time he surrenders or presents the owner's duplicate certificate of title covering the land sold and pays the registration fees, because what remains to be done lies not within his power to perform. The register of deeds is duty bound to perform it.

455

In this case, the affidavit of self-adjudication executed by Consuelo vda. de Balantakbo which contained a statement that the property was inherited from a descendant, Raul, which has (sic) likewise inherited by the latter from another ascendant, was registered with the Registry of Property. The failure of the Register of Deeds to annotate the reservable character of the property in the certificate of title cannot be attributed to Consuelo.

Moreover, there is sufficient proof that the petitioners had actual knowledge of the reservable character of the properties before they bought the same from Consuelo. This matter appeared in the deed of sale (Exhibit "C") executed by Consuelo in favor of Mariquita Sumaya, the first vendee of the property litigated in Civil Case No. SC-956, as follows:

That I (Consuelo, vendor) am the absolute and exclusive owner of the one-third (1/3) portion of the above described parcel of land by virtue of the Deed of Extra-Judicial Partition executed by the Heirs of the deceased Jose Balantakbo dated December 10, 1945, and said portion in accordance with the partition above-mentioned was adjudicated to Raul Balantakbo, single, to (sic) whom I inherited after his death and this property is entirely free from any encumbrance of any nature or kind whatsoever x x x.

It was admitted though that as regard the properties litigated in Civil Case No. SC-957, no such admission was made by Consuelo to put Villa Honorio Development on notice of the reservable character of the properties. The affidavit of self-adjudication executed by Consuelo and registered with the Registry would still be sufficient notice to bind them.

Moreover, the court a quo found that the petitioners and private respondents were long time acquaintances; that the Villa Honorio Development Corporation and its successors, the Laguna Agro-Industrial Coconut Cooperative, Inc., are family corporations of the Sumayas and that the petitioners knew all along that the properties litigated in this case were inherited by Raul Balantakbo from his father and from his maternal grandmother, and that Consuelo vda. de Balantakbo inherited these properties from his (sic) son Raul.

x x x

We do not agree, however, with the disposition of the appellate court that there is no need to register the reservable character of the property, if only for the protection of the reservees, against innocent third persons. This was suggested as early as the case of Director of Lands v Aguas, G.R. No. 42737, August 11, 1936, 63 Phil 279. The main issue submitted for resolution therein was whether the reservation established by Article 811 (now Art. 891 of the New Civil Code) of the Civil Code, for the benefit of the relatives within the third degree belonging to the line of the descendant from whom the ascendant reservor received the property, should be understood as made in favor of all the relatives within said degree and belonging to the line above-mentioned, without distinction, legitimate, natural and illegitimate ones

456

not having the legal status of natural children. However, in an obiter dictum this Court stated therein:

The reservable character of a property is but a resolutory condition of the ascendant reservor's right of ownership. If the condition is fulfilled, that is, if upon the ascendant reservor's death there are relatives having the status provided in Article 811 (Art. 891, New Civil Code), the property passes, in accordance with this special order of succession, to said relatives, or to the nearest of kin among them, which question not being pertinent to this case, need not now be determined. But if this condition is not fulfilled, the property is released and will be adjudicated in accordance with the regular order of succession. The fulfillment or non-fulfillment of the resolutory condition, the efficacy or cessation of the reservation, the acquisition of rights or loss of the vested ones, are phenomena which have nothing to do with whether the reservation has been noted or not in the certificate of title to the property. The purpose of the notation is nothing more than to afford to the persons entitled to the reservation, if any, due protection against any act of the reservor, which may make it ineffective x x x.

Likewise, in Dizon and Dizon v Galang, G.R. No. 21344, January 14, 1926, 48 Phil 601, 603, this Court ruled that the reservable character of a property may be lost to innocent purchasers for value. Additionally, it was ruled therein that the obligation imposed on a widowed spouse to annotate the reservable character of a property subject to reserva viudal is applicable to reserva troncal.

Since these parcels of land have been legally transferred to third persons, Vicente Galang has lost ownership thereof and cannot now register nor record in the Registry of Deeds their reservable character; neither can he effect the fee simple, which does not belong to him, to the damage of Juan Medina and Teodoro Jurado, who acquired the said land in good faith, free of all encumbrances. An attempt was made to prove that when Juan Medina was advised not to buy the land he remarked, "Why, did he (Vicente Galang) not inherit it from his son?" Aside from the fact that it is not clear whether this conversation took place in 1913 or 1914, that is, before or after the sale, it does not signify that he had any knowledge of the reservation. This did not arise from the fact alone that Vicente Galang had inherited the land from his son, but also from the fact that, by operation of law, the son had inherited it from his mother Rufina Dizon, which circumstance, so far as the record shows, Juan Medina had not been aware of. We do not decide, however, whether or not Juan Medina and Teodoro Jurado are obliged to acknowledge the reservation and to note the same in their deeds, for the reason that there was no prayer to this effect in the complaint and no question raised in regard thereto.

Consistent with the rule in reserva viudal where the person obliged to reserve (the widowed spouse) had the obligation to annotate in the Registry of Property the reservable character of the property, in reserva troncal, the reservor (the ascendant who inherited from another descendant property which the latter inherited from another descendant) has the duty to reserve and therefore, the duty to annotate also.

457

The jurisprudential rule requiring annotation in the Registry of Property of the right reserved in real property subject of reserva viudal insofar as it is applied to reserva troncal stays despite the abolition of reserva viudal in the New Civil Code. This rule is consistent with the rule provided in the second paragraph of Section 51 of P.D. 1529, which provides that: "The act of registration shall be operative act to convey or effect the land insofar as third persons are concerned x x x."

The properties involved in this case are already covered by a Torrens title and unless the registration of the limitation is effected (either actual or constructive), no third persons shall be prejudiced thereby. x x x

ACCORDINGLY the petition is DENIED. The questioned decision of the Intermediate Appellate Court is AFFIRMED, except for the modification on the necessity to annotate the reservable character of a property subject of reserva troncal.

SO ORDERED.

Narvasa (Chairman), Cruz and Griño-Aquino, JJ., concur.

458

NIEVA AND ALCALA v ALCALA AND DEOCAMPONo. 13386, 27 October 1920

41 Phil 915

Nieva ruled that reserva runs only in the legitimate family.

Juliana Francisco Manuela

Segunda Alfeo Jose

Johnson, J.:

Juliana Nieva, the alleged natural mother of the plaintiff Segunda Maria Nieva, married Francisco Deocampo. Of said marriage, Alfeo Deocampo was born.

Juliana Nieva died intestate on April 19, 1889, and her said son, Alfeo Deocampo, inherited from her, ab intestate, the parcels of land described in Paragraph V and X of the complaint.

Alfeo Deocampo died intestate and without issue on July 7, 1890. Thereupon the two parcels of land above-mentioned passed to his father, Francisco Deocampo, by intestate succession. Thereafter, Francisco Deocampo married the herein defendant Manuela Alcala, of which marriage was born Jose Deocampo, the other defendant herein.

Francisco Deocampo died on August 14, 1914, whereupon his widow and son, the defendants herein, took possession of the parcels of land in question, under the claim that the said son, the defendant Jose Deocampo (a minor) had inherited the same, ab intestate, from his deceased father.

On September 30, 1915, the plaintiff herein, claiming to be an acknowledged natural daughter of the said Juliana Nieva, instituted the present action for the purpose of recovering from the defendants the parcels of land in question, x x x invoking the provisions of article 811 of the Civil Code.

The lower court held that, even granting, without deciding, that the plaintiff was an acknowledged natural daughter of Juliana Nieva, she was not entitled to the property here in question because, in its opinion, an illegitimate relative has no right to the reserva troncal under the provisions of article 811 of the Civil Code.

The first question presented by this appeal is, whether or not the plaintiff is an acknowledged natural daughter of the deceased Juliana Nieva. x x x. Under the decision of this court in that case, we are of the opinion and so decide, without rediscussing here the law and legal principles involved, that the plaintiff Segunda Maria Nieva is an acknowledged natural daughter of Juliana Nieva. x x x.

459

The other and more important question presented by this appeal is, whether or not an illegitimate relative within the third degree is entitled to the reserva troncal provided for by article 811 of the Civil Code. That article reads as follows:

Any ascendant who inherits from his descendant any property acquired by the latter gratuitously from some other ascendant, or from a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives within the third degree belonging to the line from which the property came.

The property here in question was inherited, by operation of law, by Francisco Deocampo from his son Alfeo Deocampo, who, in turn, had inherited it in the same manner, from his mother Juliana Nieva, the natural mother of the plaintiff. The plaintiff is the natural sister of Alfeo Deocampo, and she belongs to the same line from which the property in question came. Was Francisco Deocampo obliged by law to reserve the property for the benefit of the plaintiff, an illegitimate relative within the third degree of Alfeo Deocampo? If he was, then upon his death, the plaintiff, and not his son the defendant Jose Deocampo, was entitled to the said property; if he was not, the plaintiff’s action must fail.

There can be no question whatsoever but that, under said article 811 of the Civil Code, the plaintiff would be entitled to the property in question if she was a legitimate daughter of Juliana Nieva. x x x But in said article 811 the legislators used the generic term “ascendant,” “descendant,” and “relatives,” without specifying whether or not they have to be legitimate. Does the legislator, then, refer to legitimate as well as to illegitimate relatives? Counsel for appellant, in a lengthy and carefully prepared brief, attempts to maintain the affirmative.

This question, so far as our investigation shows, has not been decided before by any court or tribunal, However, eminent commentators on the Spanish Civil Code, who have devoted their lives to the study and solution of the intricate and difficult problems that may arise under the provisions of that Code, have dealt with the very question now before us, and are unanimous in their opinion that the provisions of article 811 of the Civil Code apply only to legitimate relatives. Of such commentators, undoubtedly the best known of all of them, is Manresa. We believe we can do no better than to adopt his reasons and conclusions, in deciding the question before us. In determining the persons who are obliged to reserve under article 811, he says:

“Is every ascendant, whether legitimate or not, obliged to reserve? Should the natural father or grandfather reserve the properties proceeding from the mother or other natural ascendant? Article 811 does not distinguish; it speaks of ascendants without attaching the qualification of legitimate, and, on the other hand, the same reason that exists for applying the provision to the natural family exists for applying it to the legitimate family. Nevertheless, the article in referring to the ascendant in an indeterminate manner shows that it imposes the obligation to reserve only upon the legitimate ascendant.

“Let us overlook for the moment the question whether the Code recognizes or does not recognize the existence of the natural family, or whether

460

it admits only the bond established by acknowledgment between the father or mother who acknowledges and the acknowledged children. However it may be, it may be stated as an indisputable truth, that in said Code, the legitimate relationship forms the general rule and the natural relationship the exception; which is the reason why, as may be easily seem, the law in many articles speaks only of children or parents, of ascendants and descendants, and in them reference is of course made to those who are legitimate; and when it desires to make a provision applicable only to natural relationship, it does not say father or mother, but natural father or natural mother; it does not say any child, but natural child; it does not speak of ascendants, brothers or parents in the abstract, but of natural ascendants, natural brothers or natural parents (See, for example, articles 294, 302, 809, 810, 846, 935 to 938, 944 and 945, and 946 to 955.)

“Articles 908 and 910 themselves speak only of ascendants. Can it in any way be maintained that they refer to legitimate as well as to natural ascendants? They evidently establish the legitime of the legitimate ascendants included as forced heirs in number 2 of article 897. And article 811, - and as we will see also article 812, - continues to treat of the same legitime. The right of the natural parents and children in the testamentary succession is wholly included in the eighth section and is limited to the parents, other ascendants of such class being excluded in articles 807, No. 3, and 846. Therefore, the place which article 811 occupies in the Code is proof that it refers only to legitimate ascendants. And if there were any doubt, it disappears upon considering the text of article 938, which states that the provisions of article 811 applies to intestate succession, which is just established in favor of the legitimate direct ascending line, the text of article 939 to 945, which treat of intestate succession of natural parents, as well as that of articles 840 to 847, treating of their testamentary succession, which do not allude directly or indirectly to that provision.

“Lastly, the principle which underlines the exception which article 811 creates in the right to succeed neither admits of any other interpretation. Whether the provision is due to the desire that the properties should not pass, by reason of new marriages, out of a family to which they belonged, or is directly derived from the system of the so-called ‘reserva troncal,’ and whether the idea of reservation or that of lineal rights (troncalidad) predominate the patrimony which is intended to be preserved is that of the legitimate family. Only to legitimate ascendants and descendants do article 968 et seq. of the Code refer, arising as they do from the danger of second or subsequent marriage; only to legitimate parents do the special laws of Navarra, Aragon, Vizcaya and Cataluña concede the right to succeed with respect to lineal properties (bienes troncales); only to the legitimate ascendants does article 811 impose the duty to reserve.

“The convenience of amplifying the precept to natural parents and ascendants may be raised just as the question whether it would be preferable to suppress it altogether may be raised; but in the realm of the statute law there is no remedy but to admit that article 811, the interpretation of which should on the other hand be strict was drafted by the legislator with respect only to legitimate ascendants.”

461

The same jurist, in determining the persons in whose favor the reservation is established, says:

Persons in whose favor the reservation is established.- This is one of the most delicate points in the interpretation of article 811. According to this article, the reservation is established in favor of the parents1 who are within the third degree and belong to the line from which the properties came.

“It treats of blood relationship, which is applicable to questions on succession, according to articles 915 to 920. It could not be otherwise, because relationship by affinity is established between each spouse and the family of the other, by marriage, and to admit it, would be to favor the transmission of the properties of the family of one spouse to that of the other, which is, just what this article intents to prevent.

“It also treats of legitimate relationship. The person obliged to reserve is a legitimate ascendant who inherits from a descendant property which proceeds from the same legitimate family, and this being true, there can be no question, because the line from which the properties proceed must be the line of that family and only in favor of that line is the reservation established. Furthermore, we have already said, the object is to protect the patrimony of the legitimate family, following the precedents of the foral law. And it could not be otherwise. Article 943 denies to legitimate parents the right to succeed the natural child and vice versa, from which it must be deduced that natural parents neither have the right to inherit from legitimate ones; the law in the article cited establishes a barrier between the two families; properties of the legitimate family shall never pass by operation of law to the natural family.”

Scaevola, after a very extended discussion of this same subject, arrives at the same conclusion as Manresa. “La reservatario del articulo 811 es privelegio de la familia legitima. (The reservation in article 811 is a privilege of the legitimate family).” x x x.

Article 943 above referred to by Manresa, provides as follows:

“A natural or legitimated child has no right to succeed ab intestate the legitimate children and relatives of the father or mother who has acknowledged it; nor shall such children or relatives so inherit from the natural or legitimated child.”

To hold that the appellant is entitled to the property left by her natural brother, Alfeo Deocampo, by operation of law, would be a flagrant violation of the express provisions of the foregoing article (943).

For all of the foregoing reasons, the judgment of the lower court is hereby affirmed, without any finding as to costs. So ordered.

1 NOTE: There seems to be an error of translation here. The Spanish word used is “parientes” which means relatives.

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Mapa, C.J., Araullo, Malcolm, Avanceña, and Villamor, JJ., concur.MATEO v LAGUA

No. L-26270, 30 October 196929 SCRA 864

Mateo outlines the procedure for the liquidation of the estate of a deceased person, where in particular, an allegation is made that certain dispositions inter vivos impaired the legitime of a compulsory heir. It must be noted that collation is important only if the decedent left compulsory heirs. Otherwise, collation would be irrelevant. Note, further, that the procedure outlined in Mateo does not take into account the prior liquidation of the conjugal partnership or absolute community, in case the deceased is survived by a spouse. The procedure for liquidating the same are found in Articles 102 and 103 of the Family Code for the absolute community of property, and Articles 129 and 130 of the same Code for the conjugal partnership of gains.

Reyes, J.B.L.:

x x x

The established facts of this case are as follows:

Cipriano Lagua was the original registered owner of 3 parcels of land situated in Asingan, Pangasinan, referred to as Lot No. 998, with an area of 11,080 sq. m., more or less and covered by O.C.T. No. 362; Lot No. 6541 with an area of 808 sq. m., more or less, covered by O.C.T. No. 6618 and Lot No. 5106, with an area of 3,303 sq. m., covered by O.C.T. No. 8137. Sometime in 1917, Lagua and his wife Alejandra Dumlao, in a public instrument, donated Lots 998 and 6541 to their son Alejandro Lagua, in consideration of the latter's marriage to Bonifacia Mateo. The marriage was celebrated on 15 May 1917, and thereafter, the couple took possession of the properties, but the Certificate of Title remained in the donor's (sic) name.

In 1923, the son, Alejandro, died. His widow, Bonifacia Mateo, and her infant daughter lived with her father-in-law, Cipriano Lagua, who then undertook the farming of the donated lots. It seems that at the start, Cipriano Lagua was giving to Bonifacia the owner's share of the harvest from the land. In 1926, however, Cipriano refused to deliver the said share, thus prompting Bonifacia to resort to the Justice of the Peace Court of Asingan, Pangasinan, from where she obtained a judgment awarding to her possession of the two lots, plus damages.

On 31 July 1941, Cipriano Lagua executed a deed of sale of the same two parcels of land in favor of his younger son, Gervasio. This sale notwithstanding, Bonifacia Mateo was continuously given the owner's share of the harvest until 1956, when it was altogether stopped. It was only then that Bonifacia Mateo learned of the sale of the lots to her brother-in-law, who had the sale in his favor registered only on 22 September 1955. As a consequence, TCT Nos. 19152 and 19153 of the Register of Deeds of Pangasinan were issued to Gervasio.

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Bonifacia Mateo and her daughter, Anatalia, assisted by her husband, Luis Alcantara, went to the Court of First Instance of Pangasinan, seeking the annulment of the deed of sale in favor of Gervasio Lagua and for recovery of possession of the properties. On 3 January 1957, judgment was rendered in the case -

x x x declaring the sale executed by Cipriano Lagua in favor of other defendants, Gervasio Lagua and Sotera Casimiro, as null and void and non-existent; ordering the Register of Deeds for the province of Pangasinan, to cancel Transfer Certificates of Title Nos. 19152 and 19153; condemning the defendants to pay jointly and severally to the plaintiffs the sum of P200.00; ordering the defendants Gervasio Lagua and Sotera Lagua to vacate and deliver the possession over the two parcels of land to the plaintiffs, and to pay the costs of suit.

The decision became final, and Bonifacia Mateo and her daughter Anatalia Lagua, were installed in possession of the land.

On 18 August 1957, the spouses Gervasio Lagua and Sotera Casimiro commenced in the Justice of the Peace Court of Asingan, Pangasinan, an action against Bonifacia Mateo and her daughter for reimbursement of the improvements allegedly made by them on Lots 998 and 6541, plus damages. Dismissed by the Justice of the Peace Court for being barred by the judgment in Civil Case No. T-339, therein plaintiffs appealed to the Court of First Instance of Pangasinan where the case was docketed as Civil Case No. T-433. At about the same time, another case was filed, this time by Gervasio Lagua and Cipriano Lagua, for annulment of the donation of the two lots, insofar as one-half portion thereof was concerned (Civil Case No. T-442). It was their claim that in donating the two lots, which allegedly were all that plaintiff Cipriano Lagua owned, said plaintiff not only neglected leaving something for his own support but also prejudiced the legitime of his forced heir, plaintiff Gervasio Lagua.

Being intimately related, the two cases were heard jointly. On November 12, 1958, while the cases were pending final resolution, plaintiff Cipriano Lagua died. On 23 December 1960, the court rendered a single decision dismissing Civil Case No. T-433 for lack of cause of action, plaintiffs Gervasio Lagua and Sotera Casimiro having been declared possessors in bad faith in Civil Case No. T-339 and therefore, not entitled to any reimbursement of the expenses and improvements put up by them on the land. The other suit, Civil Case No. T-443, was, likewise, dismissed on the ground of prescription, the action to annul the donation having been brought only in 1958, or after the lapse of 41 years. Defendants' counterclaim were similarly dismissed although they were awarded attorney's fees in the sum of P150.00.

Plaintiff appealed the decision to the Court of Appeals. Said tribunal, on 18 March 1966, affirmed the ruling of the trial court in Civil Case No. T-443 denying plaintiffs' claim for reimbursement of the improvements said to have been made on the land. In regard to the annulment case (C.F.I. No. T-442), however, the Court of Appeals held that the donation to Alejandro Lagua of the 2 lots with a combined area of 11,888 square meters exceeded by 494.75 square meters his (Alejandro's) legitime

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and the disposable portion that Cipriano Lagua could have freely given by will, and, to the same extent prejudiced the legitime of Cipriano's other heir, Gervasio Lagua. The donation was thus declared inofficious, and defendants-appellees were ordered to reconvey to plaintiff Gervasio Lagua a portion of 494.75 square meters to be taken from any convenient part of the lots. The award of attorney's fees to the defendants was also eliminated for lack of proper basis.

Bonifacia Mateo, et al., then resorted to this Court, assailing the decision of the Court of Appeals insofar as it ordered them to reconvey a portion of the lots to herein respondent Gervasio Lagua. It is petitioners' contention that (1) the validity of the donation propter nuptias having been finally determined in Civil Case No. T-339, any question in derogation of said validity is already barred; (2) that the action to annul the donation, filed in 1958, or 41 years after its execution, is abated by prescription; (3) that a donation propter nuptias is revocable only for any of the grounds enumerated in Article 132 of the new Civil Code, and inofficiousness is not one of them; and (4) that in determining the legitime of the Lagua brothers in the hereditary estate of Cipriano Lagua, the Court of Appeals should have applied the provisions of the Civil Code of 1889, and not Article 888 of the new Civil Code.

Petitioners' first two assignment of errors, it may be stated, are non-contentious issues that have no bearing in the actual controversy in this case. All of them refer to the validity of the donation - a matter which was definitively settled in Civil Case No. T-339 and which, precisely, was declared by the Court of Appeals to be "beyond the realm of judicial inquiry." In reality, the only question this case presents is whether or not the Court of Appeals acted correctly in ordering the reduction of the donation for being inofficious, and in ordering herein petitioners to reconvey to respondent Gervasio Lagua an unidentified 494.75 square meter portion of the donated lots.

We are in accord with the Court of Appeals that Civil Case No. 442 is not one exclusively for annulment or revocation of the entire donation, but of merely that portion thereof allegedly trenching on the legitime of respondent Gervasio Lagua; that the cause of action to enforce Gervasio's legitime, having accrued only upon the death of his father on 12 November 1958, the dispute has to be governed by the pertinent provisions of the new Civil Code; and that a donation propter nuptias may be reduced for being inofficious. Contrary to the views of appellants (petitioners), donations propter nuptias are without onerous consideration, the marriage being merely the occasion or motive for the donation, not its causa. Being liberalities, they remain subject to reduction for inofficiousness upon the donor's death, if they should infringe the legitime of a forced heir.

It is to be noted, however, that in rendering the judgment under review, the Court of Appeals acted on several unsupported assumptions; that the three (3) lots mentioned in the decision (Nos. 998, 5106 and 6541) were the only properties composing the net hereditary estate of the deceased Cipriano Lagua; that Alejandro Lagua and Gervasio Lagua were his only legal heirs; that the deceased left no unpaid debts, charges, taxes, etc., for which the estate would be answerable. In the

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computation of the heirs' legitime, the Court of Appeals also considered only the area, not the value, of the properties.

The infirmity in the above course of action lies in the fact that in its Article 908 the new Civil Code specifically provides as follows:

Art. 908. To determine the legitime, the value of the property left at the death of the testator shall be considered, deducting all debts and charges, which shall not include those imposed in the will.

To the net value of the hereditary estate, shall be added the value of all donations by the testator that are subject to collation, at the time he made them.

In other words, before any conclusion about the legal share due to a compulsory heir may be reached, it is necessary that certain steps be taken first. The net estate of the decedent must be ascertained, by deducting all payable obligations and charges from the value of the property owned by the deceased at the time of his death; then, all donations subject to collation would be added to it. With the partible estate thus determined, the legitimes of the compulsory heir or heirs can be established; and only thereafter can it be ascertained whether or not a donation had prejudiced the legitimes. Certainly, in order that a donation may be reduced for being inofficious, there must be proof that the value of the donated property exceeds that of the disposable free portion plus the donee's share as legitime in the properties of the donor. In the present case, it can hardly be said that, with the evidence then before the court, it was in any position to rule on the inofficiousness of the donation involved here, and to order its reduction and reconveyance of the deducted portion to the respondent.

FOR THE FOREGOING CONSIDERATIONS, the decision of the Court of Appeals, insofar as Civil Case No. 442 of the court a quo is concerned, is hereby set aside and the trial court's order of dismissal sustained, without prejudice to the parties litigating the issue of inofficiousness in a proper proceeding, giving due notice to all persons interested in the estate of the late Cipriano Lagua. Without costs.

Concepcion, C.J., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Fernando, Teehankee, and Barredo, JJ., concur.

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NATCHER v COURT OF APPEALSG.R. No. 133000, 2 October 2001

366 SCRA 385

Natcher succinctly outlines the procedure for the calculation of the legitime of compulsory heirs. Of equal interest is the assumption of jurisdiction by a court of general jurisdiction over an issue which relates to the settlement of the estate of a deceased person. Note that the trial court, after ruling that the deed of sale executed by Graciano in favor of Patricia (his wife) is void; that the deed of sale cannot gain validity by treating it as a donation to Patricia, went further to state that the instrument may, however, be construed as a document pertaining to the grant of advance legitime to Patricia. It is ironic that a document that is void (either as a sale or as a donation) could be the source of a right.

On the issue of impairment of legitime, the outcome could be predictable if Graciano left no other asset. Of Graciano’s share in the subject property (5,326.85 sq. m,), he donated 4,849.38 sq. m. (or more than 90% thereof) to his children. He sold 80.90 sq. m. or (1.5% thereof) to a third party, and purportedly sold to Patricia 447.60 sq. m. (or 8.4%). Each child received by way of a donation from Graciano some 808 sq. m. while the Graciano attempted to give Patricia 447 square meters. Based on the numbers, it is clear that if anyone suffered an impairment of the legitme, it would be Patricia, the surviving spouse. This therefore raises the question as to whether or not the children were properly advised to seek the annulment of Patricia’s title to 447 sq. m. parcel of land.

Buena, J.:

x x x

Graciano del Rosario and Graciana Esguerra were registered owners of a parcel of land with an area of 9,322 square meters located in Manila and covered by Transfer Certificate of Title No. 11889. Upon the death of Graciana in 1951, Graciano, together with his six children, namely; Bayani, Ricardo, Rafael, Leticia, Emiliana and Nieves, entered into an extra judicial settlement of Graciana’s estate on 09 February 1954 adjudicating and dividing among themselves the real property subject of TCT No. 11889. Under the Agreement, Graciano received 8/14 share while each of the six children received 1/14 share of the said property. Accordingly, TCT No. 11889 was cancelled, and in lieu thereof, TCT No. 35980 was issued in the name of Graciano and the six children.

Further on 09 February 1954, said heirs executed and forged an “Agreement of Consolidation-Subdivision of real Property with Waiver of rights, where they subdivided among themselves the parcel of land covered by TCT No. 35980 into several lots. Graciano then donated to his children, share and share alike, a portion of his interest in the land amounting to 4,849.38 square meters leaving only 447.60 square meters registered under Graciano’s name, as covered by TCT No. 36988. Subsequently, the land subject to TCT No. 35988 was further subdivided into two

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separate lots where the first lot with a land area of 80.90 square meters was registered under TCT No. 107442 and the second lot with a land area of 396.70 square meters was registered under TCT No. 107443.. Eventually, Graciano sold the first lot to a third person but retained ownership over the second lot.

On 20 March 1980, Graciano married herein petitioner Patricia Natcher. During the marriage, Graciano sold the land covered by TCT No. 104443 to his wife Patricia as a result of which TCT No. 186059 was issued in the latter’s name. On 07 October 1985, Graciano died leaving his second wife Patricia and his six children by his first marriage, as heirs.

In a complaint filed in Civil Case No. 71075 before the Regional Trial Court of Manila, Branch 55, herein private responders alleged that upon Graciano’s death, petitioner Natcher, through the employment of fraud, misrepresentation and forgery, acquired TCT No. 107443, by making it appear that Graciano executed a Deed of Sale dated 25 June 1987 in favor of herein petitioner resulting in the cancellation of TCT No. 197443 and the issuance of TCT No. 186059 in the name of Patricia Natcher. Similarly, herein private respondents alleged in said complaint that as a consequence of such fraudulent sale, their legitimes have been impaired.

x x x

After trial, the Regional Trial Court of Manila, Branch 55, rendered a decision dated 26 January 1996 holding:

“1) The deed of sale executed by the late Graciano del Rosario in favor of Patricia Natcher is prohibited by law and thus a complete nullity. There being no evidence that a separation of property was agreed upon in the marriage settlements or that there has been decreed a judicial separation of property between them, the spouses are prohibited from entering (into) a contract of sale;

2) The deed of sale cannot be likewise regarded as a valid donation as it was equally prohibited by law under Article 133 of the New Civil Code;

3) Although the deed of sale cannot be regarded as such or as a donation, it may however be regarded as an extension of advance inheritance of Patricia Natcher being a compulsory heir of the deceased.”

On Appeal, the Court of Appeals reversed and set aside the lower court’s decision ratiocinating, inter alia:

“It is the probate court that has exclusive jurisdiction to make a just and legal distribution of the estate. The court a quo, trying an ordinary action for reconveyance/annulment of title, went beyond its jurisdiction when it performed the acts proper only in a special proceeding for the settlement of the estate of a deceased person x x x.”

“x x x Thus, the court a quo erred in regarding the subject property

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as an advance inheritance. What the court should have done was merely to rule on the validity of (the) sale and leave the issue on advancement to be resolved in a separate proceeding instituted for that purpose. x x x”

Aggrieved, herein petitioner seeks refuge under our protective mantle through the expediency of Rule 45 of the Rules of Court and assails the appellate court’s jurisdiction “for being contrary to law and the facts of the case.”

We concur with the Court of Appeals and find no merit in the instant petition.

x x x

Applying these principles, an action for reconveyance and annulment of title with damages is a civil action, whereas matters relating to the settlement of the estate of a deceased person such as advancement of property made by the decedent, partake of the nature of a special proceeding, which concomitantly requires the application of specific rules as provided for in the Rules of Court.

Clearly, matters which involve settlement and distribution of the estate of the decedent fall within the exclusive province of the probate court in the exercise of its limited jurisdiction.

x x x

Of equal importance is that before any conclusion about the legal share due to a compulsory heir may be reached, it is necessary that certain steps be taken first. The net estate of the decedent must be ascertained, by deducting all payable obligations and charges from the value of the property owned by the deceased at the time of his death; then, all donation subject to collation would be added to it. With the partible estate thus determined, the legitime of the compulsory heir or heirs can be established; and only thereafter can it be ascertained whether or not a donation had prejudiced the legitimes.

A perusal of the records, specifically the antecedents and proceedings in the present case, reveals that the trial court failed to observe established rules of procedure governing the settlement of the estate of Graciano del Rosario. This Court sees no cogent reason to sanction the non-observance of these well-entrenched rules and thereby holds that under the prevailing circumstances, a probate court, in the exercise of its limited jurisdiction, is indeed the best forum to ventilate and adjudge the issue of advancement as well as other related matters involving the settlement of Graciano del Rosario’s estate.

WHEREFORE, premises considered, the assailed decision of the Court of Appeals is hereby AFFIRMED and the instant petition is dismissed for lack of merit.

SO ORDERED.

Bellosillo (Chairman), Mendoza, Quisumbing and de Leon, JJ., concur.

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VDA. DE TUPAS v BR XLIII RTC OF NEGROS OCCIDENTALNo. L-65800, 3 October 1986

144 SCRA 622

Vda. de Tupas outlines the procedure for the determination of the hereditary estate of a deceased person, particularly where impairment of the legitime is an issue. The case outlines the step-by-step procedure for the determination of the legitime of the compulsory heirs, as well as the determination of the freely disposable portion, which in turn will determine the validity of donations inter vivos made by the deceased.

Narvasa, J.:

Involved in this appeal is the question of whether or not a donation inter vivos by a donor now deceased is inofficious and should be reduced at the instance of the donor's widow.

Epifanio R. Tupas died on August 20, 1978 in Bacolod City, childless, leaving his widow, Partenza Lucerna, as his only surviving compulsory heir. He also left a will dated May 18, 1976, which was permitted to probate on September 30, 1980 in Special Proceedings No. 13994 of the Court of First Instance of Negros Occidental. Among the assets listed in his will were lots nos. 837, 838 and 839 of the Sagay Cadastre, admittedly his private capital. However, at the time of his death, these lots were no longer owned by him, he having donated them the year before (on August 2, 1977) to the Tupas Foundation, Inc., which had thereafter obtained title to said lots.

Claiming that said donation had left her practically destitute of any inheritance, Tupas' widow brought suit against Tupas Foundation, Inc. in the same Court of First Instance of Negros Occidental to have the donation declared inofficious insofar as it prejudiced her legitime, therefore reducible x x by one-half or such proportions as x x (might be deemed) justified x x and x x the resulting deduction x x restored and conveyed or delivered to her. The complaint also prayed for attorney's fees and such other relief as might be proper.

The Trial Court did not see things her way. Upon the facts above stated, on which the parties stipulated, said Court dismissed the complaint for lack of merit, rejecting her claim on several grounds, viz:

x x x (1) Article 900 relied upon by plaintiff is not applicable because the properties which were disposed of by way of donation one year before the death of Epifanio Tupas were no longer part of his hereditary estate at the time of his death on August 20. 1978; (2) the donated properties were Epifanio's capital or separate estate; and (3) Tupas Foundation, Inc., being a stranger and not a compulsory heir, the donation inter vivos made in its favor was not subject to collation under Art. 1061, C.C.

The Trial Court is in error on all counts and must be reversed.

A person's prerogative to make donations is subject to certain limitations, one

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of which is that he cannot give by donation more that he can give by will (Art. 752, Civil Code). If he does, so much of what is donated as exceeds what he can give by will is deemed inofficious and the donation is reducible to the extent of such excess, though without prejudice to its taking effect in the donor's lifetime or the donee's appropriating the fruits of the thing donated (Art. 771, Civil Code). Such a donation is, moreover, collationable, that is, its value is imputable to the hereditary estate of the donor at the time of his death for the purpose of determining the legitime of the forced or compulsory heirs and the freely disposable portion of the estate. This is true as well of donations to strangers as of gifts to compulsory heirs, although the language of Article 1061 of the Civil Code would seem to limit collation to the latter class of donations. And this has been held to be a long-established rule in Liquez v Honorable Court of Appeals, et al., where this Court said:

x x x Hence, the forced heirs are entitled to have the donation set aside in so far as inofficious: i.e., in excess of the portion of free disposal (Civil Code if 1889, Art. 636, 645), computed as provided in Articles 818 and 819, and bearing in mind that "collationable gifts" under Article 818 should include gifts made not only in favor of the forced heirs, but even those made in favor of strangers, as decided by the Supreme Court of Spain in its decision of 4 May 1899 and 16 June 1902. So that in computing the legitimes, the value of the property donated to herein appellant, Conchita Liguez, should be considered part of the donor's estate. Once again, only the court of origin has the requisite data to determine whether the donation is inofficious or not.

The fact, therefore, that the donated property no longer actually formed part of the estate of the donor at the time of his death cannot be asserted to prevent it from being brought to collation. Indeed, it is an obvious proposition that collation contemplates and particularly applies to gifts inter vivos. The further fact that the lots donated were admittedly capital or separate property of the donor is of no moment, because a claim of inofficiousness does not assert that the donor gave what was not his, but that he gave more than what was within his power to give.

Since it is clear that the questioned donation is collationable and that, having been made to a stranger (to the donor) it is, by law chargeable to the freely disposable portion of the donor's estate, to be reduced insofar as inofficious, i.e., it exceeds said portion and thus impairs the legitime of compulsory heirs, in order to find out whether it is inofficious or not, recourse must be had to the rules established by the Civil Code for the determination of the legitime, and by extension, of the disposable portion. These rules are set forth in Articles 908, 909 and 910 of the Code, on the basis of which the following step-by-step procedure has been correctly outlined:

(1) determination of the value of the property which remains at the time of the testator's death;

(2) determination of the obligations, debts and charges which have to be paid out or deducted from the value of the property thus left;

(3) the determination of the difference between the assets and the

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liabilities, giving rise to the hereditary estate;

(4) the addition to the net value thus found, of the value, at the time they were made, of donations subject to collation; and

(5) the determination of the amount of legitimes by getting from the total thus found the portion that the law provides as the legitime of each respective compulsory heir.

Deducting the legitimes from the net value of the hereditary estate leaves the freely disposable portion by which the donation in question here must be measured. If the value of the donation at the time it was made does not exceed that difference, then it must be allowed to stand. But if it does, the donation is inofficious as to the excess and must be reduced by the amount of said excess. In this case, if any excess be shown, it shall be returned or reverted to the petitioner-appellant as the sole compulsory heir of the deceased Epifanio R. Tupas.

For obvious reasons, this determination cannot now be made as it requires appreciation of data not before this Court and may necessitate the production of evidence in the court a quo.

WHEREFORE, the appealed decision is reversed and petitioner-appellant Partenza Lucerna vda. de Tupas is adjudged entitled to so much of the donated property in question, as may be found in excess of the freely disposable portion of the estate of Epifanio R. Tupas, determined in the manner above-indicated. Let the case be remanded to the Trial Court for further appropriate proceedings in accordance with this decision.

SO ORDERED.

Yap (Chairman), Melencio-Herrera, Cruz and Feliciano, JJ., concur.

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RODRIGUEZ ET AL. v BORJA, ET AL.No. L-21993, 21 June 1966

17 SCRA 418

Intestate succession is subsidiary or subordinate to testamentary succession. This is because intestacy arises only in the absence of a valid and operative will. Thus, it is inappropriate for an heir to institute proceedings in intestacy if he knows the existence of a will, and neither will an intestate court acquire jurisdiction over the estate of a deceased person, while proceedings in testacy is on-going in another court. Rodriguez, therefore, is authority to the proposition that proceeding in testacy is preferred over proceedings in intestacy. A contrary rule may result in an anomalous situation where a determination of the intestate court would have to be set aside by reason of the admission of a will to probate.

Reyes, J.B.L., J.:

Petitioners Angela, Maria, Abelardo and Antonio, surnamed Rodriguez, petition this Court for a writ of certiorari and prohibition to the Court of First Instance of Bulacan, for its refusal to grant their motion to dismiss its Special Proceeding No. 1331, which said Court is alleged to have taken cognizance of without jurisdiction.

The facts and issues are succinctly narrated in the order of the respondent court, dated June 13, 1963 in this wise:

It is alleged in the motion to dismiss filed by Angela, Maria, Abelardo and Antonio Rodriguez, through counsel, that this Court has no jurisdiction to try the above-entitled case in view of the pendency of another action for the settlement of the estate of the deceased Rev. Fr. Celestino Rodriguez in the Court of First Instance of Rizal, namely, Sp. Proceedings No. 3907 entitled "In the matter of the Intestate Estate of the deceased Rev. Fr. Celestino Rodriguez" which was filed ahead of the instant case.

The records show that Fr. Celestino Rodriguez died on February 12, 1963 in the City of Manila; that on March 4, 1963, Apolonia Pangilinan and Adelaida Jacalan delivered to the Clerk of Court of Bulacan a purported last will and testament of Fr. Rodriguez; that on March 8, 1963, Maria Rodriguez and Angela Rodriguez, through counsel filed a petition for leave of court to allow them to examine the alleged will; that on March 11, 1963 before the Court could act on the petition, the same was withdrawn; that on March 12, 1963, aforementioned petitioners filed before the Court of First Instance of Rizal a petition for the settlement of the intestate estate of Fr. Rodriguez alleging, among other things, that Fr. Rodriguez was a resident of Parañaque, Rizal, and died without leaving a will and praying that Maria Rodriguez be appointed as Special Administratrix of the estate; and that on March 12, 1963 Apolonia Pangilinan and Adelaida Jacalan filed a petition in this Court for the probation of the will delivered by them on March 14, 1963. It was stipulated by the parties that Fr. Rodriguez was born in Parañaque, Rizal; that he was Parish Priest of the Catholic Church of Hagonoy, Bulacan from the year 1930 up to the time of his death in 1963; that he was buried in Parañaque, and that

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he left real properties in Rizal, Quezon City and Bulacan.The movants contend that since the intestate proceedings in the Court

of First Instance of Rizal was filed at 8:00 a.m. on March 17, 1963 while the petition for probate was filed in the Court of First Instance of Bulacan at 11:00 a.m. on the same day, the latter court has no jurisdiction to entertain the petition for probate, citing as authority in support thereof the case of Ongsingco vda. de Borja v Tan and de Borja, G.R. No. L-7792, July 27, 1955.

Petitioners Pangilinan and Jacalan, on the other hand, take the stand that the Court of First Instance of Bulacan acquired jurisdiction over the case upon delivery by them of the will to the Clerk of Court on March 4, 1963, and that the case in this Court therefore has precedence over the case filed in Rizal on March 12, 1963.

The Court of First Instance, as previously stated denied the motion to dismiss on the ground that a difference of a few hours did not entitle one proceeding to preference over the other; that, as early as March 7, movants were aware of the existence of the purported will of Father Rodriguez, deposited in the Court of Bulacan, since they filed a petition to examine the same, and that movants clearly filed the intestate proceedings in Rizal "for no other purpose than to prevent this Court (of Bulacan) from exercising jurisdiction over the probate proceedings." Reconsideration having been denied, movants, now petitioners, came to this Court, relying principally on Rule 73, Section 1 of the Rules of Court, and invoking our ruling in Ongsingco v Tan and de Borja, L-7792, July 27, 1955.

Section 1. Where estate of deceased person settled. - If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of First Instance in the province in which he resides at the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance of any province in which he had estate. The court first taking cognizance of the settlement of the estate of the decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, as far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on record.

We find this recourse untenable. The jurisdiction of the Court of First Instance of Bulacan became vested upon the delivery thereto of the will of the late Father Rodriguez on March 4, 1963, even if no petition for its allowance was filed until later, because upon the will being deposited the court could, motu proprio, have taken steps to fix the time and place for proving the will, and issued the corresponding notices conformably to what is prescribed by section 3, Rule 76 of the Revised Rules of Court:

Section 3. Court to appoint time for proving will. Notice thereof to be published. - When a will is delivered to, or a petition for the allowance of a will is filed in, the Court having jurisdiction, such Court shall fix a time and place for proving the will when all concerned may appear to contest the allowance thereof, and shall cause notice of such time and place to be published three

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(3) weeks successively, previous to the time appointed, in a newspaper of general circulation in the province.

x x x

The use of the disjunctive in the words "when a will is deliver to OR a petition for the allowance of a will is filed" plainly indicates that the court may act upon the mere deposit therein of a decedent's testament, even if no petition for its allowance is as yet filed. Where the petition for probate is made after the deposit of the will, the petition is deemed to relate back to the time when the will was delivered. Since the testament of Fr. Rodriguez was submitted and delivered to the Court of Bulacan on March 4, while petitioners initiated intestate proceedings in the Court of First Instance of Rizal only on March 12, eight days later, the precedence and exclusive jurisdiction of the Bulacan court is incontestable.

x x x

There are two other reasons that militate against the success of petitioners. One is that their commencing intestate proceedings in Rizal, after they learned of the delivery of the decedent's will to the Court of Bulacan, was in bad faith, patently done with a view to divesting the latter court of precedence awarded it by the Rules. Certainly the order of priority established in Rule 73 (old Rule 75) was not designed to convert the settlement of the decedent's estate into a race between applicants, with the administration of the properties as the price for the fleetest.

The other reason is that, in our system of civil law, intestate succession is only subsidiary or subordinate to the testate, since intestacy only takes place in the absence of a valid operative will. Says Article 960 of the Civil Code of the Philippines:

Art. 960. Legal or intestate succession takes place:

(1) If a person dies without a will, or with a void will, or one which has subsequently lost is validity;

(2) When the will does not institute an heir, or dispose of all the property belonging to the testator. In such case, legal succession shall take place only with respect to property which the testator has not disposed;

(3) If the suspensive condition attached to the institution of heir does not happen or is not fulfilled, or if the heir dies before the testator, or repudiates the inheritance, there being no substitution, and no right of accretion takes place;

(4) When the heir instituted is incapable of succeeding, except in cases provided in this Code.

Therefore, as ruled in Castro, et al. v Martinez, 10 Phil 307, "only after final decision as to the nullity of testate succession could an intestate succession be instituted in the form of pre-established action." The institution of intestacy proceedings in Rizal may not thus proceed while the probate of the purported will of Father Rodriguez is pending.

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We rule that the Bulacan Court of First Instance was entitled to priority in the settlement of the estate in question, and that in refusing to dismiss the probate proceeding, said court did not commit any abuse of discretion. It is the proceedings in the Rizal Court that should be discontinued.

Wherefore, the writ of certiorari applied for is denied. Costs against petitioners Rodriguez.

Chief Justice Concepcion, and Justices Barrera, Dizon, Regala, Makalintal, J. P. Bengzon, Zaldivar and Sanchez, concur.

476

MADARCOS V DE LA MERCEDG.R. No. 39975, 30 June 1989

174 SCRA 599

The Court had an opportunity to construe the meaning of the words "legal heirs." The restrictive meaning thereof would refer to heirs called upon to inherit by intestacy. The more liberal interpretation would, however, include any person called to succeed, either by virtue of a will, or by intestacy.

The dispositive portion of this case must be carefully understood. Both Francisca Madarcos and Telesforo Catain were intestate heirs or legal heirs of the original homesteaders. The Court ruled that they were qualified redemptioners of the property sold. Why then did the Court allow Francisca Madarcos to redeem the property, but at the same time affirmed the dismissal of the complaint as regards the other petitioner, Telesforo Catain?

Fernan, C.J.

At issue in this petition for review on certiorari is the proper construction of the term "legal heirs" as used in Section 119 of the Public Land Act which provides:

Every conveyance of land acquired under the free patent or homestead provisions, when proper, shall be subject to repurchase by the applicant, his widow, or legal heirs, within a period of five years from the date of conveyance.

The facts are as follows: Petitioners Francisca Madarcos and Telesforo Catain are the niece and nephew respectively of the spouses Benito Catain and Andrea Madarcos. Francisca is the daughter of the deceased brother (Joaquin) of Andrea Madarcos while Telesforo is the son of a deceased brother (Gregorio) of Benito Catain.

The Catain spouses died without issue, and ab intestato. They left a tract of land with an area of 50,985 square meters, more or less, situated in Salvacion, Roxas, Palawan, covered by Homestead Patent No. 8193 and Bureau of Lands No. H-27580 and described in Certificate of Title G-25 issued in the name of Benito Catain on September 28, 1925 by the Register of Deeds of Palawan,

The only heirs of the deceased homesteaders were their nephews and nieces. In this duly registered Affidavit of Adjudication, said heirs divided the above parcel of land into several lots. One lot, known as Lot B, Psd-37486, with an area of 12, 746 square meters, was awarded to petitioner Francisca Madarcos, as evidenced by Transfer Certificate of Title No. T-202 issued in her name. The rest of the lots were adjudicated to the other nephews and nieces of the deceased couple.

On May 19, 1972, Francisca Madarcos sold her share of the inheritance, Lot B, to respondent Loreto Sta. Maria for a consideration of P4,800.00 by reason of which the latter was issued Transfer Certificate of Title No. 5656 by the Register of

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Deeds for Palawan.Subsequently, petitioners Francisca Madarcos and Telesforo Catain

demanded the reconveyance of Lot B pursuant to Section 119 of the Public Land Act. Respondent vendee Loreto Sta. Maria having refused, they instituted an action for repurchase with damages in the Court of First Instance of Palawan.

Respondent moved for the dismissal of the complaint on the ground that petitioners had no legal capacity to sue because they are not the legal heirs contemplated in Section 119 of the Public Land Act. The trial court sustained respondent's motion and dismissed the action in its order of August 20, 1974. That order is the subject of the present appeal.

The term "legal heirs" is used in Section 119 in a generic sense. It is broad enough to cover any person who is called to the succession either by provision of a will or by operation of law. Thus, legal heirs include both testate and intestate heirs depending upon whether succession is by the will of the testator or by law. Legal heirs are not necessarily compulsory heirs but they maybe so if the law reserves a legitime for them.

In this instant case, as the decedents had left no will, the law supplanted their intention. Their estates were distributed by intestate succession.

x x x

Since the Catain spouses were childless and were survived only by their nephews and nieces, the latter succeeded to the entire estate of the deceased.

Article 975 states that "when children of one or more brother or sister of the deceased survive, they shall inherit from the latter by representation, if they survive with their uncles or aunts. But if they alone survive, they shall inherit in equal portions."

Verily, petitioners are legal heirs. Having been decreed under the rules of intestacy as entitled to succeed to the entire estate of the Catain spouses due to the absence of compulsory heirs, they now step into the shoes of the decedents. They should be considered as among the legal heirs contemplated by Section 119 as entitled to redeem the homestead.

The above interpretation of "legal heir" as contra-distinguished from the restrictive construction given it by the lower court is more in keeping with the salutary purpose behind the enactment of Section 119 and the jurisprudence laid down on the matter. Indeed, it is not far-fetched to arrive at a more liberal conclusion if the section is analyzed in accordance with its purpose as in the case of Pascua v Talens where the Court, speaking through Justice Bengzon, discoursed on the rationale behind Section 119.

x x x

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WHEREFORE, the questioned dismissal order of the trial court dated August 30, 1974 in Civil Case No. 945 entitled "Francisca Madarcos and Telesforo Catain v Loreto Sta. Maria" is MODIFIED. Respondent Loreto Sta. Maria is hereby ordered to execute a deed of resale of Lot B, Psd-37486 in favor of petitioner Francisca Madarcos upon payment by the latter of the redemption price. The dismissal of the complaint as to the other petitioner, Telesforo Catain, is AFFIRMED. No costs.

Gutierrez, Jr., Feliciano, Bidin and Cortes, JJ., concur.

479

DE LOS SANTOS v DE LA CRUZNo. L-29192, 22 February 1971

37 SCRA 555

De los Santos illustrates the rule of proximity; i.e., the nearer relatives exclude the more remote ones, except if the right of representation is applicable. Thus, in intestate succession, the nephews and nieces shall exclude the grandniece, who in the specific instance, is barred from exercising the right of representation.

Villamor, J.:

x x x

From the records of this case, we cull the following salient facts: On May 21, 1965, Gertrudes de los Santos filed a complaint for specific performance against Maximo de la Cruz, alleging among others, that on August 24, 1963, she and several co-heirs, including defendant, executed an extra-judicial partition agreement over certain portion of land with an area of around 20,000 square meters; that the parties thereto had agreed to adjudicated three (3) lots to the defendant, in addition to his corresponding share, on condition that the latter would undertake the development and subdivision of the estate which was the subject matter of the agreement, all expenses in connection therewith to be defrayed from the proceeds of the sale of the aforementioned three (3) lots; that in spite of demands by plaintiff, by the other co-heirs, and by the residents of the subdivision, the defendant refused to perform his aforesaid obligation although he had already sold the aforementioned lots. The plaintiff prayed the court to order the defendant to comply with his obligation under the extra-judicial partition agreement and to pay the sum of P1,000.00 as attorney's fees and costs.

In his answer, the defendant admitted the due execution of the extra-judicial partition agreement, but set up the affirmative defenses that the plaintiff had no cause of action against him because the said agreement was void with respect to her, for the reason that the plaintiff was not even an heir of Pelagia de la Cruz, deceased owner of the property, and was included in the extra-judicial partition agreement by mistake; and that although he had disposed of the three lots adjudicated to him, nevertheless the proceeds of the sale were not sufficient to develop and improve properly the subdivided estate. The answer contained a counterclaim wherein the defendant alleged that the plaintiff had likewise sold her share in the estate for P10,000.00 and that the extra-judicial partition agreement being void insofar as the latter was concerned, he was entitled to one-fourth (1/4) of the proceeds as his share by way of reversion. The defendant prayed that the complaint be dismissed; that the extra-judicial partition agreement be declared void with respect to plaintiff; and, on his counterclaim, that the plaintiff be ordered to pay him the sum of P2,500.00.

x x x

On July 6, 1966, the case was submitted for decision on the following

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stipulation of facts:x x x

5. That the parties agree that defendant is the nephew of the deceased Pelagia de la Cruz aforementioned, who was the owner and predecessor in interest of the land which was subject matter of the extra-judicial partition agreement;

6. That the parties agree that plaintiff is the grandniece of the said Pelagia de la Cruz;

7. That Pelagia de la Cruz died intestate and without issue on October 16, 1962, as evidenced by a death certificate, which is marked as Exhibit "2" for the defendant; and

8. That Marciana de la Cruz is the mother of the plaintiff and the niece of the said Pelagia de la Cruz, and that the said Marciana de la Cruz died on September 22, 1935 as evidenced by Exhibit "3" for the defendant.

In its decision dated November 3, 1966, the court a quo held that the defendant, being a party to the extra-judicial partition agreement, was estopped from raising in issue the right of the plaintiff to inherit from the deceased Pelagia de la Cruz; hence, he must abide by the terms of the agreement. The court ordered the defendant "to perform his obligations to develop Lots 1, 2 and 3 of (LRC) Psd-29561 as described on page 2 of the Extra-Judicial Partition Agreement" (meaning, apparently, that the defendant should develop the subdivision because said Lots 1,2 and 3 were intended to be sold for this purpose), and to pay the plaintiff the sum of P2,000.00 as actual damages, the sum of P500.00 as attorney's fees, and the costs. No disposition was made of defendant's counterclaim. The defendant filed a "Motion for New Trial" but the same was denied. Hence, this appeal.

The seven (7) errors assigned by the defendant-appellant in his brief boil down to the following questions:

1. The court a quo erred in not holding that the extra-judicial partition agreement is null and void with respect to plaintiff-appellee, and, consequently, that plaintiff-appellee has no cause of action against defendant-appellant.

2. The court a quo erred in holding that defendant-appellant is estopped from questioning plaintiff-appellee's right to have the agreement enforced.

3. The court a quo erred in ordering defendant-appellant to pay actual damages to plaintiff-appellee, and, on the other hand, in not granting the relief prayed for by defendant-appellant in his counterclaim.

We shall discuss seriatim these errors as thus condensed.

1. In the stipulation of facts submitted to the court below, the parties admit that

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the owner of the estate, subject matter of the extra-judicial partition agreement, was Pelagia de la Cruz, who died intestate on October 16, 1962; that defendant-appellant is a nephew of the said decedent; that plaintiff-appellee is a grandniece of the said Pelagia de la Cruz, her mother, Marciana de la Cruz being a niece of the said Pelagia de la Cruz; that plaintiff-appellee's mother died on September 22, 1935, thus predeceasing Pelagia de la Cruz; and that the purpose of the extra-judicial partition agreement was to divide and distribute the estate among the heirs of Pelagia de la Cruz.

The pivotal question is whether, in the premises, plaintiff-appellee is an heir of the decedent. We are convinced that she is not. Plaintiff-appellee being a mere grandniece of Pelagia, she could not inherit from the latter by right of representation.

Art. 972. The right of representation takes place in the direct descending line, never in the ascending.

In the collateral line, it takes place only in favor of the children of brothers or sisters, whether they be of the full or half blood.

Much less could plaintiff-appellee inherit in her own right.

Art. 962. In every inheritance, the relative nearest in degree exclude the more distant ones, saving the right of representation when it properly takes place. x x x.

Applying these two (2) provisions, this Court in Linart y Pavia v Ugarte y Iturralde, 5 Phil 176 (1905), said:

x x x [I]n an intestate succession a grandniece of the deceased cannot participate with a niece in the inheritance, because the latter being a nearer relative, the more distant grandniece is excluded. In the collateral line the right of representation does not obtain beyond sons and daughters of the brothers and sisters which would have been the case if Pablo Linart, the father of the plaintiff, had survived the deceased uncle.

In the present case, the relatives "nearest in degree' to Pelagia de la Cruz are her nephews and nieces, one of whom is defendant-appellant. Necessarily, plaintiff-appellee, a grandniece, is excluded by law from the inheritance.

But what is the legal effect of plaintiff-appellee's inclusion and participation in the extra-judicial partition agreement insofar as her right to bring the present action is concerned? They did not confer upon her the right to institute this action. The express purpose of the extra-judicial partition agreement, as admitted by the parties in the stipulation of facts, was to divide the estate among the heirs of Pelagia de la Cruz. Indeed, the said agreement itself states that plaintiff-appellee was participating therein in representation of her deceased mother. The pertinent portion of the agreement is herein quoted, thus:

NOW, THEREFORE, we x x x and Diego de los Santos, married to

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Anastacia de la Cruz; Mariano de los Santos married to Andrea Ramoy; Gertrudes de los Santos married to Pascual Acuna; Alejo de los Santos married to Leonila David; and Sotera de los Santos married to Narciso Ramota; all in representation of our mother, MARCIANA DE LA CRUZ, x x x do hereby by these presents, mutually, voluntarily and amicably agree among ourselves to equitably divide the property left by the deceased PELAGIA DE LA CRUZ, and adjudicate unto ourselves definite and independent portions of the estate in the following manner x x x.

It is quite apparent that in executing the partition agreement, the parties thereto were laboring under the erroneous belief that plaintiff-appellee was one of the legal heirs of Pelagia de la Cruz. Plaintiff-appellee not being such an heir, the partition is void with respect to her, pursuant to Article 1105 of the Civil Code which reads:

Art. 1105. A partition which includes a person believed to be an heir, but who is not, shall be void only with respect to such person.

Partition of property effected between a person entitled to inherit from the deceased owner thereof and another person who thought he was an heir, when he was not really and lawfully such, to the prejudice of the rights of the true heir designated by law to succeed the deceased, is null and void (de Torres v de Torres, et al., 28 Phil 49). A fortiori, plaintiff-appellee could hardly derive from the agreement the right to have its terms enforced.

2. The extra-judicial partition agreement being void with respect to plaintiff-appellee, she may not be heard to assert estoppel against defendant-appellant. Estoppel cannot be predicated on a void contract (17 Am. Jur. 605), or on acts which are prohibited by law or are against public policy (Baltazar v Lingayen Gulf Electric Power Co., et al., G.R. Nos. 16236-38, June 30, 1965 (14 SCRA 522)]) x x x.

IN VIEW OF THE FOREGOING CONSIDERATIONS, the judgment appealed from is hereby reversed and set aside; the defendant-appellant is absolved from any liability to and in favor of plaintiff-appellee; and, on appellant's counterclaim, appellee is hereby sentenced to restore or reconvey to him his corresponding share of the property she has received under the extra-judicial partition hereinbefore mentioned if the same has not already been disposed of as alleged. Costs in both instances against plaintiff-appellee.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo and Makasiar, JJ., concur.

483

BAGUNU v PIEDADG.R. No. 140975, 8 December 2000

347 SCRA 571

Under the rule of proximity, a maternal aunt (a relative within the 3rd degree) excludes the daughter of the first cousin of the decedent (a relative within the 5 th

degree), even if under the order of intestate succession, both of them fall within sixth level of preference. Moreover, the daughter of the first cousin is not entitled to the right of representation in order to elevate her status to a relative of a nearer degree because representation in the collateral line is limited to children of brothers and sisters of the decedent.

Vitug, J.:

x x x

Augusto Peidad died without any direct descendants or ascendants. Respondent is the maternal aunt of the decedent, a third degree relative of the decedent, while petitioner is the daughter of a first cousin of the deceased, or a fifth-degree relative of the decedent.

x x x

The rule on proximity is a concept that favors the relatives nearest in degree to the decedent and excludes the more distant ones, except when and to the extent that the right of representation can apply. Thus, Article 962 of the Civil Code provides:

Art. 962. In every inheritance, the relatives nearest in degree excludes the more distant ones, saving the right of representation when it properly takes place.

Relatives in the same degree shall inherit in equal shares, subject to the provisions of article 1006 with respect to relatives of the full and half blood, and of article 987, paragraph 2, concerning the division between the paternal and maternal lines.”

By right of representation, a more distant blood relative of a decedent is, by operation of law, “raised to the same place and degree” of relationship as that of a closer blood relative of the same decedent. The representative thereby steps into the shoes of the person he represents and succeeds, not from the latter, but from the person whose estate the person represented would have succeeded.

Art. 970. Representation is a right created by fiction of law, by virtue of which the representative is raised to the place and the degree of the person represented, and acquires the rights which the latter would have if he were living or if he could have inherited.

Art. 971. The representative is called to the succession by the law and not by the person represented. The representative does not succeed the person represented by the one whom the person represented would have succeeded.

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In the direct line, right of representation is proper only in the descending, never in the ascending line. In the collateral line, the right of representation may only take place in favor of children of brothers or sisters of the decedent when such children survive with their uncles and aunts.

Art. 972. The right of representation takes place in the direct descending line, but never in the ascending.

In the collateral line, it takes place only in favor of the children of brothers and sisters, whether they be of the full or half blood.

Art. 974. Whenever there is succession by representation, the division of the estate shall be made per stirpes, in such manner that the representative or representatives shall not inherit more than what the person they represent would inherit, if he were living and could inherit.

Art. 975. When children of one or more brothers or sisters of the deceased survive, they shall inherit from the latter by representation, if they survive with their uncles or aunts. But if they alone survive, they shall inherit in equal portions.

The right of representation does not apply to “other collateral relatives within the fifth civil degree” (to which group both petitioner and respondent belong) who are sixth in the order of preference following, firstly, the legitimate children and descendants, secondly, the legitimate parents and ascendants, thirdly, the illegitimate children and descendants, fourthly, the surviving spouse, and fifthly, the brothers and sisters/nephews and nieces, of the decedent. Among collateral relatives, except only in the case of nephews and nieces of the decedent concurring with their uncles or aunts, the rule of proximity, expressed in article 962, aforequoted, of the Code, is an absolute rule. In determining the degree of relationship of the collateral relatives, Article 966 of the Civil Code gives direction.

Article 966. x x x

In the collateral line, ascent is made to the common ancestor and then descent is made to the person with whom the computation is to be made. Thus, a person is two degree removed from his brother, three from his uncle, who is the brother of his father, four from his first cousin, and so forth.

(diagram omitted)

Respondent, being a relative within the third civil degree, of the late Augusto H. Piedad excludes petitioner, a relative of the fifth degree, from succeeding ab intestato to the estate of the decedent.

The provision of Article 1009 and Article 1010 of the Civil Code –

Article 1009. Should there be neither brothers nor sisters nor children of brothers or sisters, the other collateral relatives shall succeed to the estate,

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The latter shall succeed without distinction of lines or preference among them by reason of relationship by the whole blood.

Article 1010. The right to inherit ab intestato shall not extend beyond the fifth degree of relationship in the collateral line.

Invoked by petitioner do not at all support her cause. The law means only that among the other collateral relatives (the sixth in the line of succession), no preference or distinction shall be observed by reason of relationship by the whole blood. In fine, a maternal aunt can inherit alongside a paternal uncle, and a first cousin of the full blood can inherit equally with a first cousin of the half blood, but an uncle or an aunt, being a third degree relative, excludes the cousins of the decedent, being in the fourth degree of relationship the latter, in turn, would have priority in succession to a fifth degree relative.

WHEREFORE, the instant Petition is DENIED. No costs.

SO ORDERED.

Melo (Chairman), Panganiban, and Gonzaga-Reyes, JJ., concur.

486

HEIRS OF PASCASIO URIARTE v COURT OF APPEALSG.R. No 116775, 22 January 1998

284 SCRA 511

A half-blood nephew is a collateral relative within the third degree. He excludes the children of first cousins, even if the relationship of the decedent with the former is of the full blood. The relative nearer in degree excludes those who are more remote, regardless of the full or half blood relationship.

Mendoza, J.:

The parties and their relationship to Justa Arnaldo-Sering are as follows:

Private respondent Benedicto Estrada is the son of Agatonica Arreza, whose parents were Pedro Arreza and Ursula Tubil. Upon the death of Pedro Arreza, Ursula married Juan Arnaldo by whom she had another daughter, the decedent Justa. Private respondent Benedicto Estrada is thus the nephew of Justa by her half sister Agatonica.

Petitioners, referred to in this case as the heirs of Pascasio Uriarte, are the widow and daughters of Pascasio Uriarte. Pascasio was one of the sons of Primitiva Arnaldo and Conrado Uriarte. His mother, Primitiva Uriarte, was the daughter of Domingo Arnaldo and Catalina Azarcon. Domingo Arnaldo and Justa’s father, Juan Arnaldo, were brothers. Petitioners are thus grandchildren1, the relatives within the fifth degree of consanguinity, of Justa by her cousin Primitiva Arnaldo Uriarte.

Pedro Ursula Juan ….(brother)… Domingo Catalina

Agatonica Justa Gregorio Primitiva

Benedicto JorencioJosefina Enecia Gaudencio

Nicolas Simplicio Lupecino Domingo Felisa Virgilio

Heirs of Pascacio:Roselyn

Madrilyn Lourdes

1 NOTE: This seems to be an error. The Heirs of Pascasio Uriarte (namely, Roselyn, Madrilyn, Lourdes and Felomina) are grandnephews and grandnieces of Justa by her first cousin, and therefore relatives within the sixth degree in the collateral line. Justa on the one hand, and Primitiva and Gregorio on the other hand, are first cousins because their respective fathers, Juan and Domingo are brothers. Therefore, the heirs and direct descendants of Pascasio cannot be considered as grandchildren (relatives in the direct descending line) of Justa Arnaldo-Sering. It is equally erroneous to state that the heirs of Pascasio are relatives of Justa within the fifth degree. They are in fact relatives within the 6 th

degree.

487

FelominaThe other petitioners are the children of Primitiva and those of her brother

Gregorio. The children of Primitiva by Conrado Uriarte, aside from Pascasio are, Josefina, Gaudencia, Simplicio, Domingo and Virgilio, all surnamed Uriarte. The children of Gregorio Arnaldo, Primitiva’s bother, by Julieta Ilogon are, Jorencio, Enecia, Nicolas, Lupecino and Felisa. These other petitioners are thus grandchildren2

and relatives within the fifth degree of Justa by her cousins Gregorio Arnaldo and Primitiva Arnaldo.

Private respondent Benedicto Estrada brought this case in the Regional Trial Court for the partitioning of the land left by Justa Arnaldo-Sering. The land, consisting of 2.7 hectares, had been acquired by Justa as follows: 0.5 hectare by inheritance from her parents Juan Arnaldo and Ursula Tubil, and 2.2 hectares by purchase. Private respondent claimed to be the sole surviving heir of Justa, on the ground that the latter died without issue. He complained that Pascasio Uriarte who, he claimed, worked the land as Justa’s tenant, refused to give him (private respondent) his share of the harvest. He contended that Pascasio had no right to the entire land of Justa but could claim only 0.5 hectare land which Justa inherited from her parents Juan Arnaldo and Ursula Tubil.

Pascasio died during the pendency of the case and was substituted by his heirs. In their answer, the heirs denied they were mere tenants of Justa but the latter’s heirs entitled to her entire land.

They claimed that the entire land, subject of the case, was originally owned by Ambrocio Arnaldo, their great granduncle. It was allegedly bequeathed to Domingo and Juan Arnaldo, Ambrocio’s nephews, in a holographic will executed by Ambrocio in 1908. Domingo was to receive two-thirds of the land and Juan one-third. The heirs claimed that the land had always been in their possession and that in her lifetime, Justa never asserted exclusive right over the property but only received her share of the harvest from it. They alleged that private respondent did not have any right to the property because he was not an heir of Ambrocio Arnaldo, the original owner of the property.

The trial court sustained petitioner’s contention. In its decision rendered on November 8, 1991, it ruled:

As earlier stated, the land of Ambrosio Arnaldo which he left to his two nephews, Domingo and Juan Arnaldo, was only .5481 hectare, divided as follows: two-third or 3,654 square meters to Domingo and one-third or 1,827 square meters to Juan. The area increased to 2.7588 hectares from .5481 hectare because the adjacent lot of about two hectares was acquired by Justa Arnaldo-Sering, daughter of Juan Arnaldo, after the latter’s death. The entire 2.7588 hectares was covered by tax declaration in the name of Justa Arnaldo Sering. The latter however, died intestate and without issue. Her nearest

2 NOTE: For the reason that Gregorio is a first cousin of Justa, the children of Gregorio (Jorencio, Enecia, Nicolas, Lupecino and Felisa) are nephews and nieces (not grandchildren) of Justa by a first cousin. They are relatives of Justa within the 5th civil degree.

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surviving relatives are the children of her uncle Domingo Arnaldo to whom her entire estate passed on after her death by operation of law, to the exclusion of all other relatives. Thus, the right to the succession are transmitted from the moment of the death of the decedent. (Art. 277, Civil Code).

Accordingly, the court ordered:

WHEREFORE. Judgment is hereby rendered in favor of the defendants and the intervenors [herein petitioner] and against the plaintiff [private respondent], declaring the defendants and the intervenors, together with the other heirs of the late Domingo Arnaldo, as entitled to the entire parcel of land described in Tax Declaration No. 124 and subsequent revising tax declarations in the name of Justa Arnaldo Sering. No costs.

SO ORDERED.

On appeal, the Court of Appeals reversed. Contrary to the trial court’s findings, the appellate court found that 0.5 hectare had been acquired by Justa’s parents, Juan Arnaldo and Ursula Tubil, during their marriage. As the nephew of Justa by her half-sister Agatonica, private respondent was held to be entitled to share in the estate of Justa. In the dispositive portion of its decision, the appellate court ordered:

WHEREFORE, the judgment appealed from is hereby REVERSED and another is hereby entered –

Ordering the partition of the property described in the second amended complaint in the following manner:

(1) .2500 hectare as the share of defendants-intervenors, and

(2) 2.58 hectares as the share of the plaintiff.

For this purpose, the court a quo is hereby directed to proceed with the partition in accordance with the procedure laid down in Rule 69 of the Rules of Court.

SO ORDERED.

Hence, this petition by the heirs of Pascasio Uriarte, the heirs of Primitiva Uriarte, and the heirs of Gregorio Arnaldo.

x x x

After due consideration of the petition, we find it to be without merit. As already stated, Justa left a piece of land consisting of 2.7 hectares. Half of this land (0.5 hectare), as the Court of Appeals found, formerly was conjugal property of her parents, Juan Arnaldo and Ursula Tubil. The rest, consisting of 2.2 hectares, was acquired by Justa after the death of her parents. Accordingly, the division of Justa’s property should be as follows as private respondent contends:

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A – The first ½ hectare should be divided into two parts, the share of Juan Arnaldo which will accrue to petitioners and the second half which pertains to Ursula Tubil, which will accrue to private respondent.

B – As to the second portion of the area of the land in question which as already stated was consolidated with the ½ hectare originally belonging to the conjugal partnership of Juan Arnaldo and Ursula Tubil, the same shall accrue to private respondent, who is the son of Agatonica Arreza, and who is only three degrees from Just Arnaldo, whereas petitioners who are the children of Primitiva Arnaldo and Gregorio Arnaldo, are five degrees removed from Justa Arnaldo.

The issue in this case is who among the petitioners and the private respondent is entitled to Justa’s estate as her nearest relatives within the meaning of Art. 962 of the Civil Code.

x x x

Indeed, given the fact that 0.5 hectare of the land in question belonged to the conjugal partnership of Justa’s parents, Justa was entitled to 0.125 hectare of the half hectare land as her father’s (Juan Arnaldo’s) share in the conjugal property, while petitioners are entitled to the other 0.125 hectare. In addition, Justa inherited her mother’s (Ursula Tubil’s) share consisting of 0.25 hectare. Plus the 2.2 hectares which belonged to her in her own right, Justa owned a total of 2.575 or 2.58 hectares of the 2.7 hectare land. This 2.58 hectare land was inherited by private respondent Benedicto Estrada as Justa’s nearest surviving relative. As the Court of Appeals held:

According to Article 962 of the Civil Code, in every inheritance, the relative nearest in degree excludes the more distant ones, saving the right of representation when it properly takes place.

Relatives in the same degree shall inherit in equal shares, subject to the provisions of Article 1006 with respect to relatives of the full and half blood, and of Article 987, paragraph 2, concerning division between paternal and maternal lines.

The manner of determining the proximity or relation are provided by Articles 963-966 of the Civil Code. They provide:

x x x

In this case, plaintiff is the son of Agatonica, the half-sister of Justa. He is thus a third degree relative of Justa.

On the other hand, defendants and intervenors are the sons and daughters of Justa’s cousin. They are thus fifth degree relatives of Justa.

Applying the principle that the nearest excludes the farthest, then plaintiff is the lawful heir of Justa. The fact that his mother is only a half-sister of

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Justa is of no moment.Nevertheless, petitioners make much of the fact that private respondent is not

an Arnaldo, his mother being Ursula’s daughter not by Juan Arnaldo but by Pedro Arreza. They claim that this being the case, private respondent is not an heir of Justa and this not qualified to share in her estate.

Petitioners misappreciate the relationship between Justa and private respondent. As already stated, private respondent is the son of Justa’s half–sister Agatonica. He is therefore Justa’s nephew. A nephew is considered a collateral relative who may inherit if no descendant, ascendant or spouse survive the decedent. That private respondent is only a half-blood relative is immaterial. This alone does not disqualify him from being his aunt’s heir. As the Court of Appeals correctly pointed out, “the determination of whether the relationship is of the full or half blood is important only to determine the extent of the share of the survivors.

x x x

WHEREFORE, the petition is DENIED. The temporary restraining order issued by this Court is LIFTED, and the decision of the Court of Appeals is AFFIRMED.

SO ORDERED.

Regalado (Chairman), Puno and Martinez, JJ., concur.

491

DE LA PUERTA v COURT OF APPEALSG.R. No. 77867, 6 February 1990

181 SCRA 861

The right of representation does not extend to the adopted children of the person to be represented. This is because the fictional tie that binds the adopter and the adopted does not extend to the relatives of the adopter. Thus, the adopter may adopt an heir for himself, but he cannot adopt one for his relatives.

Cruz, J.:

The basic issue involved in this case is the filiation of private respondent Carmelita de la Puerta, who claims successional rights to the estate of her alleged grandmother.

Dominga Revuelta died on July 3, 1966, at the age of 92, with a will leaving her properties to her three surviving children, namely Alfredo, Vicente and Isabel, all surnamed de la Puerta. Isabel was given the free portion in addition to her legitime and was appointed executrix of the will.

The petition for the probate of the will filed by Isabel was opposed by her brothers, who averred that their mother was already senile at the time of the execution of the will and did not fully comprehend its meaning. Moreover, some of the properties listed in the inventory of her estate belonged to them exclusively.

Meantime, Isabel was appointed special administratrix by the probate court. Alfredo subsequently died, leaving Vicente the lone oppositor.

On August 1, 1974, Vicente de la Puerta filed with the Court of First Instance of Quezon a petition to adopt Carmelita de la Puerta. After hearing, the petition was granted. However, the decision was appealed by Isabel to the Court of Appeals. During the pendency of the appeal, Vicente died, prompting her to move for the dismissal of the case.

On November 20, 1981, Carmelita, having been allowed to intervene in the probate proceedings, filed a motion for the payment to her of a monthly allowance as the acknowledged natural child of Vicente de la Puerta. At the hearing on her motion, Carmelita presented evidence to prove her claimed status to which Isabel was allowed to submit counter-evidence.

On November 12, 1982, the probate court granted the motion, declaring that it was satisfied from the evidence at hand that Carmelita was a natural child of Vicente de la Puerta and was entitled to the amounts claimed for her support. The court added that "the evidence presented by the petitioner against it (was) too weak to discredit the same."

On appeal, the order of the lower court was affirmed by the respondent court,

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which is now in turn being challenged in this petition before us.The petitioner's main argument is that Carmelita was not the natural child of

Vicente de la Puerta, who was married to Genoveva de la Puerta in 1938 and remained his wife until his death in 1978. Carmelita's real parents are Juanito Austrial and Gloria Jordan.

Invoking the presumption of legitimacy, she argues that Carmelita was the legitimate child of Juanito Austrial and Gloria Jordan, who were legally or presumably married. Moreover, Carmelita could not have been a natural child of Vicente de la Puerta because he was already married at the time of her birth in 1962.

To prove her point, Isabel presented Amado Magpantay, who testified that he was a neighbor of Austrial and Jordan. According to him, the two were living as husband and wife and had three children, including a girl named "Puti", presumably Carmelita. He said though that he was not sure if the couple were legally married.

Another witness, Genoveva de la Puerta, identified herself as Vicente de la Puerta's wife but said they separated two years after their marriage in 1938 and were never reconciled. In 1962, Gloria Jordan started living with Vicente de la Puerta in his house, which was only five or six houses away from where she herself was staying. Genoveva said that the relationship between her husband and Gloria was well known in the community.

In finding for Carmelita, the lower court declared that:

x x x By her evidence, it was shown to the satisfaction of the Court that she was born on December 18, 1962 per her birth certificate (Exh. A); that her father was Vicente de la Puerta and her mother is Gloria Jordan who were living as common law husband and wife until his death on June 14, 1978; that Vicente de la Puerta was married to, but was separated from, his legal wife, Genoveva de la Puerta; that upon the death of Vicente de la Puerta on June 14, 1978 without leaving a last will and testament, she was the only child who survived him together with his spouse Genoveva de la Puerta with whom he did not beget any child; that she was treated by Vicente de la Puerta as a true child from the time of her birth until his father died; that the fact that she was treated as a child of Vicente de la Puerta is shown by the family pictures showing movant with Vicente de la Puerta and school records wherein he signed the report cards as her parent; that during the hearing of her adoption case in Special Proceeding No. 0041 in Branch V of this Court at Mauban, Quezon, Vicente de la Puerta categorically stated in court that Carmelita de la Puerta is his daughter with Gloria Jordan; that it was Vicente de la Puerta during his lifetime who spent for her subsistence, support and education; x x x.

This is a factual finding that we do not see fit to disturb, absent any of those circumstances we have laid down in a long line of decisions that will justify reversal. x x x.

Finally, we move to the most crucial question, to wit: May Carmelita de la

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Puerta claim support and successional rights to the estate of Dominga Revuelta?

According to article 970 of the Civil Code:

Art. 970. Representation is a right created by fiction of law, by virtue of which the representative is raised to the place and the degree of the person represented and acquires the rights which the latter would have if he were living or if he could have inherited.

The answer to the question posed must be in the negative. The first reason is that Vicente de la Puerta did not predecease his mother; and the second is that Carmelita is a spurious child.

It is settled that -

In testamentary succession, the right of representation can take place only in the following cases: first, when the person represented dies before the testator; second, when the person represented is incapable of succeeding the testator; and third, when the person represented is disinherited by the testator. In all of these cases, since there is a vacancy in the inheritance, the law calls the children or descendants of the person represented to succeed by right of representation.

x x x

The law is clear that there is representation only when relatives of a deceased person try to succeed him in his rights which he would have had if still living. In the present case, however, said deceased had already succeeded his aunt, the testatrix herein. x x x It is a fact that at the time of the death of the testatrix, Reynaldo Cuison was still alive. He died two months after her (testatrix's) death. And upon his death, he transmitted to his heirs, the petitioners herein Elisa Cuison et al., the legacy or the right to succeed to the legacy. x x x In other words, the herein petitioners-appellants are not trying to succeed to the right to the property of the testatrix, but rather to the right to the legatee Reynaldo Cuison in said property.

Not having predeceased Dominga Revuelta, her son Vicente had the right to inherit from her directly or in his own right. No right of representation was involved nor could it be invoked by Carmelita upon her father's death, which came after his own mother's death. It would have been different if Vicente was already dead when Dominga Revuelta died. Carmelita could then have inherited from her in representation of her father Vicente, assuming the private respondent was a lawful heir.

But here lies the crux for she is not. As a spurious child of Vicente, Carmelita is barred from inheriting from Dominga because of Article 992 of the Civil Code, which lays down the barrier between the legitimate and illegitimate families. This article provides quote clearly:

494

Art. 992. An illegitimate child has no right to inherit ab intestato from the legitimate children and relative of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child.Applying this rule in Leonardo v Court of Appeals, this Court declared:

x x x even if it is true that petitioner is the child of Sotero Leonardo, still he cannot inherit, by right of representation, claim a share of the estate left by the deceased Francisca Reyes considering that, as found again by the Court of Appeals, he was born outside wedlock as shown by the fact that when he was born, his alleged putative father and mother were not yet married, and what is more, his alleged father's first marriage was still subsisting. At most, petitioner would be an illegitimate child who has no right to inherit ab intestato from the legitimate children and relatives of his father, like the deceased Francisca Reyes.

The reason for this rule was explained in the recent case of Diaz v Intermediate Appellate Court, thus:

Article 992 of the New Civil Code provides a barrier or iron curtain in that it prohibits absolutely a succession ab intestato between the illegitimate child and the legitimate children and relatives of the father or mother of said legitimate (sic) child. They may have a natural tie by blood, but this is not recognized by law for the purpose of Article 992. Between the legitimate family and the illegitimate family there is presumed to be an intervening antagonism and incompatibility. The illegitimate child is disgracefully looked down upon by the legitimate family; the family in turn, hated by the illegitimate child; the latter considers the privileged condition of the former, and the resources of which it is hereby deprived; the former, in turn sees in the illegitimate child nothing but the product of sin, palpable evidence of a blemish broken in life; the law does no more than recognize this truth, by avoiding further ground of resentment.

Indeed, even as an adopted child, Carmelita would still be barred from inheriting from Dominga Revuelta for there would be no natural kindred ties between them and consequently, no legal ties to bind them either. As aptly pointed out by Dr. Arturo M. Tolentino:

If the adopting parent should die before the adopted child, the latter cannot represent the former in the inheritance from the parents or ascendants of the adopted. The adopted child is not related to the deceased in that case, because the filiation created by fiction of law is exclusively between the adopter and the adopted. "By adoption, the adopters can make for themselves an heir, but they cannot thus make one for their kindred.

The result is that Carmelita, as the spurious daughter of Vicente de la Puerta, has successional rights to the intestate estate of her father but not to the estate of Dominga Revuelta. Her claims for support and inheritance should therefore be filed in the proceedings for the settlement of her own father's estate and cannot be considered in the probate of Dominga Revuelta's will.

WHEREFORE, the petition is GRANTED and the appealed decision is hereby REVERSED and SET ASIDE, with costs against private respondent. It is so ordered.

495

Narvasa, Gancayco, Griño-Aquino and Medialdea, JJ., concur.

496

ABELLANA-BACAYO v FERRARIS-BORROMEONo. L-19382, 31 August 1965

14 SCRA 986

As an exception to the general rule that the right of representation is available only in the descending line, Art. 975 of the Civil Code permits representation in the collateral line (but only in intestate succession) insofar as nephews and nieces of the decedent are concerned. When such nephews and nieces inherit by representation, they succeed to that portion which their predeceased or incapacitated father or mother would have otherwise been entitled to inherit. By right of representation, these nephews and nieces shall be deemed to be two degrees remote from the decedent. However, the prerequisite for the exercise of the right of representation is that the nephews and nieces must concur with at least one uncle or aunt. Otherwise, nephews and nieces will inherit in their own right as third degree relatives of the decedent.

It must also be noted that even when they inherit in their own right as third degree relatives, nephews and nieces are preferred over the uncles and aunts of the decedent (who are likewise relatives within the third degree of the decedent). This is because of the order of intestate succession which ranks brothers, sisters, nephews and nieces fourth in the order of succession, whereas other collateral relatives, including uncles and aunts of the deceased, are ranked fifth. Finally, the exercise of the right of representation is subject to the barrier between the legitimate and illegitimate families under Article 992.

In the more recent case of Delgado vda. de la Rosa v Heirs of Marciana Rustia vda. de Damian [G.R. No. 155733, 27 January 2006 (480 SCRA 334)], the Supreme Court through Justice Corona ruled that “(u)nder Article 972 of the New Civil Code, the right of representation in the collateral line takes place only in favor of children of brothers and sisters (nephews and nieces), Consequently, it cannot be exercised by grandnephews and grandnieces.”

Likewise, in the case of Bagugu v Piedad, Justice Vitug clarified that the right of representation is generally available only in the descending line, never in the ascending. In the collateral line, the right is limited to children of brothers and sisters who concur with uncles and/or aunts. No other collateral relative can benefit from the right of representation.

Reyes, J.B.L., J.:

x x x

The facts of this care are not disputed by the parties.

Melodia Ferraris was a resident of Cebu City until 1937 when she transferred to Intramuros, Manila. She was known to have resided there continuously until 1944. Thereafter, up to the filing on December 22, 1960 of the petition for summary

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settlement of her estate, she has not been heard of and her whereabouts are still unknown. More than ten (10) years having elapsed since the last time she was known to be alive, she was declared presumptively dead for purposes of opening her succession and distributing her estate among her heirs.

Melodia Ferraris left properties in Cebu City, consisting of one-third (1/3) share in the estate of her aunt, Rosa Ferraris, valued at P6,000.00, more or less, and which was adjudicated to her in Special Proceeding No. 13-V of the same court.

The deceased Melodia Ferraris left no surviving direct descendants, ascendants, or spouse, but was survived only be collateral relatives, namely, Filomena Abellana de Bacayo, an aunt and half-sister of decedent's father, Anacleto Ferraris; and by Gaudencia, Catalina, Conchita and Juanito, all surnamed Ferraris, her nieces and nephews, who were the children of Melodia's only brother of full blood, Arturo Ferraris, who predeceased her (the decedent). These two classes of heirs claim to be the nearest intestate heirs and seek to participate in the estate of said Melodia Ferraris.

The sole issue to be resolved in this case is: Who should inherit the intestate estate of a deceased person when he or she is survived only by collateral relatives, to wit: an aunt and the children of a brother who predeceased him or her? Otherwise, will the aunt concur with the children of the decedent's brother in the inheritance or will the former be excluded by the latter?

The trial court ruled that the oppositors-appellees, as children of the only predeceased brother of the decedent, exclude the aunt (petitioner-appellant) of the same decedent, reasoning out that the former are nearer in degree (two degrees) than the latter since nieces and nephews succeed by right of representation, while petitioner-appellant is three degrees distant from the decedent, and that other collateral relatives are excluded by brothers or sisters, or children of brothers or sisters of the decedent in accordance with article 1009 of the New Civil Code.

Against the above ruling, petitioner-appellant contends in the present appeal that she is of the same or equal degree of relationship as the oppositors-appellees, three degrees removed from the decedent; and that under article 975 of the New Civil Code no right of representation could take place when the nieces and nephews of the decedent do not concur with an uncle or aunt, as in the case at bar, but rather the former succeed in their own right.

We agree with appellant that as an aunt of the deceased, she is as far distant as the nephews from the decedent (three degrees) since in the collateral line to which both kinds of relatives belong, degrees are counted by first ascending to the common ancestor and then descending to the heir (Civil Code, Art. 966). Appellant is likewise right in her contention that nephews and nieces alone do not inherit by right of representation (i.e., per stirpes) unless concurring with brothers or sisters of the deceased, as provided expressly by Article 975:

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Art. 975. When children of one or more brothers or sisters of the deceased survive, they shall inherit from the latter by representation, if they survive with their uncles and aunts. But if they alone survive they shall inherit in equal portions.

Nevertheless, the trial court was correct when it held that, in case of intestacy, nephews and nieces of the de cujos exclude all other collaterals (aunts and uncles, first cousins, etc.) from the succession. This is readily apparent from Articles 1001, 1004, 1005 and 1009 of the Civil Code of the Philippines, that provided as follows:

Art. 1001. Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitled to one-half of the inheritance, and the brothers and sisters or their children to the other half.

Art. 1004. Should the only survivors be brothers and sisters of the full blood, they shall inherit in equal shares.

Art. 1005. Should brothers and sisters survive together with nephews and nieces who are the children of the decedent's brothers and sisters of the full blood, the former shall inherit per capita, and the latter per stirpes.

Art. 1009. Should there be neither brothers or sisters, nor children of brothers and sisters, the other collateral relatives shall succeed to the estate.

The latter shall succeed without distinction of lines or preferences among them by reason of relationship by the whole blood.

Under the last article (1009), the absence of brothers, sisters, nephews and nieces of the decedent is a precondition to the other collaterals (uncles, cousins, etc.) being called to the succession. This was also and more clearly the case under the Spanish Civil Code of 1889, that immediately preceded the Civil Code now in force. Thus, Articles 952 and 954 of the Code of 1889 prescribed as follows:

Art. 952. In the absence of brothers, sisters, nephews and nieces, children of the former, whether of the whole blood or not, the surviving spouse, if not separated by a final decree of divorce, shall succeed to the entire estate of the deceased.

Art. 954. Should there be neither brothers or sisters, nor children of brothers and sisters, nor a surviving spouse, the other collateral relatives shall succeed to the estate of the deceased.

The latter shall succeed without distinction of lines or preferences among them by reason of the whole blood.

It will be seen that under the preceding articles, brothers and sisters and nephews and nieces inherited ab intestato ahead of the surviving spouse, while other collaterals succeeded only after the widower or widow. The present Civil Code of the Philippines merely placed the spouse on a par with the nephews and nieces and brothers and sisters of the deceased, but without altering the preferred position of the

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latter vis-a-vis the other collaterals.

Appellant quote paragraph 2 of Tolentino's commentaries to Article 1009 of the present Civil Code as declaring that Article 1009 does not establish a rule of preference. This is true as to "other collaterals," since preference among them is according to their proximity to the decedent as established by Article 962 paragraph 1.

Art. 962. In every inheritance, the relative nearest in degree excludes the more distant ones, saving the right of representation when it properly takes place.

But Tolentino does not state that nephews and nieces concur with other collaterals of equal degree. On the contrary, in the first paragraph of his commentaries to Article 1009 (Vol. II, p. 439) (which counsel for appellants had unethically omitted to quote), Tolentino expressly states:

Other collaterals - The last of the relatives of the decedent to succeed in intestate succession are the collaterals other than brothers or sisters or children of brothers or sisters. They are, however, limited to relatives within the fifth degree. Beyond this, we can safely say, there is hardly any affection to merit the succession of collaterals. Under the law, therefore, relatives beyond the fifth degree are no longer considered as relatives, for successional purposes.

Article 1009 does not state any order of preference. However, this article should be understood in connection with the general rule that the nearest relatives exclude the further. Collaterals of the same degree inherit in equal parts, there being no right of representation. They succeed without distinction of lines or preferences among them on account of the whole blood relationship.

We, therefore, hold, and so rule, that under our laws of succession, a decedent's uncles and aunts may not succeed ab intestato so long as nephews and nieces of the decedent survive and are willing and qualified to succeed.

The decision appealed from, in so far as it conforms to the rule, is hereby affirmed. No costs.

Bengzon, C.J., Concepcion, Dizon, Regala, Makalintal, Bengzon, J.P., and Zaldivar, JJ., concur.

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MALANG v MOSONG.R. No. 119064, 22 August 2000

338 SCRA 393

The rights to the succession of a Muslim who died during the effectivity of the Muslim Code shall be governed by the said law. Prior to the effectivity of the Muslim Code, the succession to the estate of a Muslim is governed by the Civil Code.

The capacity of an heir to succeed is determined by the law in force at the time of the conception or birth of the heir.

Gonzaga-Reyes, J.:

x x x

Hadji Abdula Malang, a Muslim, contracted marriage with Aida (Kenanday) Limba. They begot three sons named Hadji Mohammad Ulysis, Hadji Ismael Malindatu and Datulna, and a daughter named Lawanbai. x x x. Hadji Abdula and Aida had two children when he married for the second time another Muslim named Jubaida Kado x x x. No child was born out of Hadji Abdula’s second marriage. When Aida, the first wife, was pregnant with their fourth child, Hadji Abdula divorced her.

In 1965, Hadji Abdula married another Muslim, Nayo H. Omar but they were childless. Thereafter Hadji Abdula contracted marriage with Hadji Mabai (Mabay) H. Adziz x x x and soon they had a daughter named Fatima (Kueng). x x x Not long after, Haji Abdula married three other Muslim women named Saaga, Mayumbai and Sabai but eventually divorced them.

x x x In 1972, he married petitioner Neng “Kagui Kadiguia Malang, his fourth wife, excluding the wives he had divorced. They established residence in Cotabato City but they were childless. x x x.

On December 18, 1993, while he was living with petitioner in Cotabato City, Hadji Abdula died without leaving a will. On January 21, 1994, petitioner filed with the Shari’a District Court in Cotabato City a petition for the settlement of his estate with a prayer that letters of administration be issued in the name of her niece, Tarhata Lauban.

Petitioner claimed in that petition that she was the wife of Hadji Adbula; that his other legal heirs are his three children named Teng Abdula, Keto Abdula and Kueng Malang, and that he left seven (7) parcels of land, five (5) of which are titled in Hadji Abdula’s name “married to Neng P. Malang,” and a pick-up jeepney.

On February 7, 1994, the Shari’a District Court ordered the publication of the petition. After such publication or on March 16, 1994, Hadji Mohammad Ulyssis Malang (“Hadji Mohammad” for brevity) the eldest son of Hadji Abdula, filed his opposition to the petition. He alleged among other matters that his father’s surviving

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heirs are as follows: (a) Jubaida Malang, surviving spouse; (b) Nayo Malang, surviving spouse; (c) Maybay Malang, surviving spouse; (d) petitioner Neng Malang, surviving spouse; (e) oppositor Hadji Mohammad Ulyssis Malang who is also known as Teng Abdula, son; (f) Hadji Ismael Malindatu Malang, also known as Keto Abdula, son; (g) Fatima Malang, also known as Kueng Malang, daughter; (h) Datulna Malang, son; and (i) Lawanbai Malang, daughter. Oppositor Hadji Mohammad Ulyssis Malang alleged that since he and his brother Hadji Ismael Malindatu Malang, had help their father in his business, then they were more competent to be administrators of his estate.

On March 30, 1994, Jubaida Malang, Ismael Malindatu Malang, Nayo Malang, Fatima Malang, Baybay Malang, Datulna Malang and Lawanbai Malang filed an opposition to the petition, adopting as their own the written opposition of Hadji Mohammad.

x x x

Thus, the Shari’a District Court held that the Islamic law should be applied in the distribution of the estate of Hadji Adbula and accordingly disposed of the case as follows:

WHEREFORE, premises considered, the court orders the following:

1) That the estate shall pay the corresponding estate tax, reimburse the funeral expenses in the amount of P50,000.00, and the judicial expenses in the amount of P2,040.80;

2) That the net estate, consisting of real and personal properties, located in Talayan, Maguindanao and in Cotabato City, is hereby ordered to be distributed as follows:

a) Jubaida Kado Malang 2/64 of the estateb) Nayo Omar Malang 2/64 of the estatec) Mabai Aziz Malang 2/64 of the estated) Neng “Kagui Kadiguia" Malang 2/64 of the estatee) Mohammad Ulyssis Malang 14/64 of the estatef) Ismael Malindatu Malang 14/64 of the estateg) Datulna Malang 14/64 of the estateh) Labanbai Malang 7/64 of the estatei) Fatima (Kueng) Malang 7/64 of the estate

Total 64/64

3) That the amount of P250,000 given to Neng “Kagui Kadiguia” Malang by way of advance be charged against her share and if her share is not sufficient, to return the excess; and

4) That the heirs are hereby ordered to submit to this court their Project of Partition for approval, not later than three (3) months from receipt of this order.

On October 4, 1995, petitioner filed a motion for the reconsideration of that order. The oppositors subjected to that motion. On January 10, 1995, the Shari’a

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District Court denied petitioner’s motion for reconsideration. Unsatisfied, petitioner filed a notice of appeal. However, on January 19, 1995 she filed a manifestation withdrawing the notice of appeal on the strength of the following provisions of P.D. No. 1083.

Art. 145. Finality of Decisions. The decisions of the Shari’a District Courts whether on appeal from the Shari’a Circuit Court or not shall be final. Nothing herein contained shall affect the original and appellate jurisdiction of the Supreme court as provided in the Constitution.

Petitioner accordingly informed the court that she would be filing an original action for certiorari with the Supreme Court.

On March 1, 1995, petitioner filed the instant petition for certiorari with preliminary injunction and/or restraining order. She contends that the Shari’a District Court gravely erred in: (a) ruling that when she married Hadji Abdula Malang, the latter had three existing marriages with Jubaida Kado Malang, Nayo Omar Malang and Maybay Ganap Malang and therefore the properties acquired during her marriage could not be considered conjugal, and (b) holding that said properties are not conjugal because under Islamic law, the regime of relationship is complete separation of property, in the absence of stipulation to the contrary in the marriage settlement or any other contract.

As petitioner sees it, ‘the law applicable on issues of marriage and property regime is the New Civil Code,” under which all property of the marriage is presumed to belong to the conjugal partnership. The Shari’a Court, meanwhile, viewed the Civil Code provision on conjugal partnership as incompatible with plural marriage, which is permitted under Muslim Law, and held the applicable property regime to be complete separation of property under P.D. 1083.

x x x

What is not disputed is that: Hadji Abdula contracted a total of eight marriages, counting the three which terminated in divorce; all eight marriages were celebrated during the effectivity of the New Civil Code and before the enactment of the Muslim Code; Hadji Abdula divorced four wives – namely Aida, Saaga, Mayumbai and Sabai – all divorces of which took place before the enactment of the Muslim Code; and, Hadji Abdula died on December 18, 1993, after the Muslim Code and Family Code took effect, survived by four wives (Hubaida, Nayo, Maybay, and Neng) and five children, four of whom he begot with Aida and one with Maybay. It is also clear that the following laws were in force, at some point or other, during the marriages of Hadji Abdula: the Civil Code, which took effect on August 30, 1950, Republic Act No. 394 (“R.A. 394”) authorizing Muslim divorces, which was effective from June 18, 1949 to June13, 1969; the Muslim Code, which took effect February 4, 1977; and the Family Code, effective August 3, 1988.

Proceeding upon the foregoing, the Court has concluded that the record of the case is simply inadequate for purposes of arriving at a fair and complete resolution of

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the petition. To our mind, any attempt at this point to dispense with the basic issue given the scantiness of the evidence before us could result in grave injustice to the parties in this case, as well as cast profound implications on Muslim families similarly or analogously situated to the parties herein. Justice and accountability dictate a remand; trial must reopen in order to supply the factual gaps or, in Congressman Mastura’s words, “missing links,” that would be the basis for judgment and accordingly, allow respondent court to resolve the instant case. In ordering thus, however, we take it as an imperative on our part to set out guidelines in the interpretation and application of pertinent laws to facilitate the task of respondent court.

It will also be recalled that the main issue presented by the petition – concerning the property regime applicable to two Muslims married prior to the effectivity of the Muslim Code – was interposed in relation to the settlement of the estate of the deceased husband. Settlement of estate of Muslims whose civil acts predate the enactment of the Muslim Code may easily result in the application of the Civil Code and other personal laws, thus convincing the Court that it is but propitious to go beyond the issue squarely presented and verify such collateral issues as are required to be resolved in a settlement of estate case. As amicus curiae Congressman Mastura puts it, the Court does not often come by a case as the one herein, and jurisprudence will be greatly enriched by a discussion of the “watershed of collateral issues” that this case presents.

The Court has identified the following collateral issues, which we hereby present in question form: x x x (5) What law governs the succession to the estate of a Muslim who died after the Muslim Code and the Family Code took effect? x x x.

The succeeding guidelines, which derive mainly from the Compliance of amicus curiae Justice Puno, are hereby laid down by the Court for reference of respondent court, and for the direction of the bench and bar.

x x x

Fifth and Sixth Collateral Issues: Law(s) on SuccessionAnd Dissolution of Property Regimes

Hadji Abdula died intestate on December 16, 1993. Thus, it is the Muslim Code which should determine the identification of the heirs in the order of intestate succession and the respective shares of the heirs.

Meanwhile, the status and capacity to succeed on the part of the individual parties who entered into each and every marriage ceremony will depend upon the law in force at the time of the performance of the marriage rite.

The status and capacity to succeed of the children will depend upon the law in force at the time of conception or birth of the child. If the child was conceived for born during the period covered by the governance of the Civil Code, the Civil Code

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provisions on the determination of the legitimacy or illegitimacy of the child would appear to be in point. Thus, the Civil Code provides:

Art. 255. Children born after one hundred eighty days following the celebration of the marriage, and before three hundred days following its dissolution or the separation of the spouses shall be presumed to be legitimate.

Against this presumption no evidence shall be admitted other than that of the physical impossibility of the husband’s having access to his wife within the first one hundred twenty days of the three hundred which preceded the birth of the child.

This physical impossibility may be caused:

(1) by the impotence of the husband;(2) by the fact that the husband and wife living separately in such a way that access was not possible;(3) by the serious illness of the husband.

Article 256. The child is presumed legitimate, although the mother may have declared against its legitimacy or may have been sentenced as an adulteress.

If the child was conceived or born during the period covered by the governance of the Muslim code, i.e., from February 4, 1977 up to the death of Hadji Abdula on December 18, 1993, the Muslim Code determines the legitimacy or illegitimacy of the child. Under the Muslim Code:

Art. 58. Legitimacy, how established.- Legitimacy of filiation is established by the evidence of valid marriage between the father and the mother at the time of the conception of the child.

Art. 59. Legitimate children.-

(1) Children conceived in lawful wedlock shall be presumed to be legitimate. Whoever claims illegitimacy of or impugns such filiation must prove his allegation.

(2) Children born after six months following the consummation of marriage or within two years after the dissolution of the marriage shall be presumed to be legitimate. Against this presumption no evidence shall be admitted other than that of physical impossibility of access between the parents at or about the time of the conception of the child.

Art. 60. Children of subsequent marriage. – Should the marriage be dissolved and the wife contracts another marriage after the expiration of her ‘idda’, the child born within six months from the dissolution of the prior marriage shall be presumed to have been conceived during the former marriage, and if born thereafter, during the latter.

Art. 61. Pregnancy after dissolution. – If, after the dissolution of marriage, the wife believes that she is pregnant by her former husband, she shall, within thirty

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days from the time she became aware of her pregnancy, notify the former husband or his heirs of that fact. The husband or his heirs may ask the court to take measures to prevent a simulation of birth.

Upon determination of status and capacity to succeed based on the foregoing provisions, the provisions on legal succession in the Muslim Code will apply. Under Article 110 of the said Code, the sharers to an inheritance include:

(a) the husband, the wife;(b) the father, the mother, the grandfather, the grandmother;(c) the daughter and the son’s daughter in the direct line;(d) the full sister, the consanguine sister, the uterine sister and the uterine

brother.

When the wife survives with a legitimate child or a child of the decedent’s son, she is entitled to one-eighth of the hereditary estate; in the absence of such descendants, she shall inherit one-fourth of the estate. The respective shares of the other sharers, as set out in Article 110 abovecited, are provided for in Article 113 to 122 of P.D. 1083.

x x x

WHEREFORE, the decision dated September 26, 1994 of the Fifth Shari’a District Court of Cotabato City in Special Proceeding No. 94-40 is SET ASIDE and the instant petition is REMANDED for the reception of additional evidence and the resolution of the issues of the case based on the guidelines set out in this Decision.

SO ORDERED.

Davide, jr. (C.J.), Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Ynares-Santiago and de Leon, JJ., concur.

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SAYSON v COURT OF APPEALSG.R. Nos. 89224-25, 23 January 1992

205 SCRA 321

The right of representation accorded to legitimate grandchildren is reiterated in this case, although there were legal issues raised with respect to such legitimacy. The unavailability of the right of representation to the adopted children was likewise confirmed. The conflicting theory of the petitioners in this case should be noted.

Cruz, J.:

At issue in this case is the status of the private respondent and their capacity to inherit from their alleged parents and grandparents. The petitioner deny them that right, asserting it for themselves to the exclusion of all others.

The relevant genealogical facts are as follows:

Eleno and Rafaela Sayson begot five children, namely, Mauricio, Rosario, Basilisa, Remedios and Teodoro. Eleno died on November 10, 1952, and Rafaela on May 15, 1976. Teodoro, who has married Isabel Bautista, died on March 23, 1972. His wife died nine years later, on March 26, 1981. Their properties were left in the possession of Delia, Edmundo and Doribel, all surnamed Sayson, who claim to be their children.

On April 25, 1983, Mauricio, Rosario, Basilisa and Remedios, together with Juana C. Bautista, Isabel's mother, filed a complaint for partition and accounting of the intestate estate of Teodoro and Isabel Sayson. It was docketed as Civil Case No. 1030, in Branch 13 of the Regional Trial Court of Albay. The action was resisted by Delia, Edmundo and Doribel Sayson, who alleged successional rights to the disputed estate as the decedent's lawful descendants.

On July 11, 1983, Delia, Edmundo and Doribel filed their own complaint, this time for the accounting and partition of the intestate estate of Eleno and Rafaela Sayson, against the couple's four surviving children. This was docketed as Civil Case No. 1042 in the Regional Trial Court of Albay, Branch 12. The complainants asserted that Delia and Edmundo were the adopted children and Doribel was the legitimate daughter of Teodoro and Isabel. As such, they were entitled to inherit Teodoro's share in his parents' estate by right of representation.

Both cases were decided in favor of herein private respondents on the basis of practically the same evidence.

Judge Rafael P. Santelices declared in his decision dated May 26, 1986, that Delia and Edmundo were the legally adopted children of Teodoro and Isabel Sayson by virtue of the decree of adoption dated March 9, 1967. Doribel was their legitimate daughter as evidenced by her birth certificate dated February 27, 1967. Consequently, the three children were entitled to inherit from Eleno and Rafaela by right of

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representation.In his decision dated September 30, 1986, Judge Jose S. Sanez dismissed

Civil Case No. 1030, holding that the defendants, being the legitimate heirs of Teodoro and Isabel as established by the aforementioned evidence, excluded the plaintiffs from sharing in their estate.

Both cases were appealed to the Court of Appeals, where they were consolidated. In its own decision dated February 28, 1989, the respondent court disposed as follows:

WHEREFORE, in Civil Case No. 1030 (CA-G.R. No. 11541), the appealed decision is hereby affirmed. In Civil Case No. 1042 (CA-G.R. No. 12364), the appealed decision is modified in that Delia and Edmundo Sayson are disqualified from inheriting from the estate of the deceased spouses Eleno and Rafaela Sayson, but is affirmed in all other respects.

SO ORDERED.

That judgment is now before us in this petition for review by certiorari. Reversal of the respondent court is sought on the ground that it disregarded the evidence of the petitioners and misapplied the pertinent law and jurisprudence when it declared the private respondents as the exclusive heirs of Teodoro and Isabel Sayson.

The contention of the petitioners is that Delia and Edmundo were not legally adopted because Doribel had already been born on February 27, 1967, when the decree of adoption was issued on March 9, 1967. The birth of Doribel disqualified her parents from adopting. The pertinent provision is Article 335 of the Civil Code, naming among those who cannot adopt "(1) those who have legitimate, legitimated, acknowledged natural children, or natural children by legal fiction."

Curiously enough, the petitioners also argue that Doribel herself is not the legitimate daughter of Teodoro and Isabel but was in fact born to one Editha Abila, who manifested in a petition for guardianship of the child that she was her natural mother.

The inconsistency of this position is immediately apparent. The petitioners seek to annul the adoption of Delia and Edmundo on the ground that Teodoro and Isabel already had a legitimate daughter at the time but in the same breath, try to demolish this argument by denying that Doribel was born to the couple.

On top of this, there is the vital question of timeliness. It is too late now to challenge the decree of adoption, years after it became final and executory. That was way back in 1967. Assuming that the petitioners were proper parties, what they should have done was seasonably appeal the decree of adoption, pointing to the birth of Doribel that disqualified Teodoro and Isabel from adopting Delia and Edmundo. They did not. In fact, they should have done this earlier, before the decree of adoption was issued. They did not, although Mauricio claimed he had personal knowledge of such birth.

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x x x

On the question of Doribel's legitimacy, we hold that the findings of the trial court as affirmed by the respondent court must be sustained. Doribel's birth certificate is formidable piece of evidence. It is one of the prescribed means of recognition under Article 265 of the Civil Code and Article 172 of the Family Code. It is true, as the petitioners stress, that the birth certificate offers only prima facie evidence of filiation and may be refuted by contrary evidence. However, such evidence is lacking in the case at bar.

Mauricio's testimony that he was present when Doribel was born to Editha Abila was understandably suspect, coming as it did from an interested party. The affidavit of Abila denying her earlier statement in the petition for guardianship of Doribel is of course hearsay, let alone the fact that it was never offered in evidence in the lower courts. Even without it, however, the birth certificate must be upheld in line with Legaspi v Court of Appeals, where we ruled that "the evidentiary nature of public documents must be sustained in the absence of strong, complete and conclusive proof of its falsity or nullity.

Another reason why the petitioners' challenge must fail is the impropriety of the present proceedings for that purpose. Doribel's legitimacy cannot be questioned in a complaint for partition and accounting but in a direct action seasonably filed by the proper party.

The presumption of legitimacy in the Civil Code x x x does not have this purely evidentiary character. It serves a more fundamental purpose. It actually fixes a civil status for the child born in wedlock, and that civil status cannot be attacked collaterally. The legitimacy of the child can be impugned only in a direct action brought for that purpose, by the proper parties, and within the period limited by law.

The legitimacy of the child cannot be contested by way of defense or as a collateral issue in another action for a different purpose x x x.

In consequence of the above observations, we hold that Doribel, as the legitimate daughter of Teodoro and Isabel Sayson, and Delia and Edmundo, as their adopted children, are the exclusive heirs to the intestate estate of the deceased couple, conformably to the following Article 979 of the Civil Code.

Art. 979. Legitimate children and their descendants succeed the parents and other ascendants, without distinction as to sex, age, and even if they should come from different marriages.

An adopted child succeeds to the property of the adopting parents in the same manner as a legitimate child.

The philosophy underlying this article is that a person's love descends first to his children and grandchildren before it ascends to his parents and thereafter spreads

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among his collateral relatives. It is also supposed that one of his purposes in acquiring properties is to leave them eventually to his children as a token of his love for them and as a provision for their continued care even after he is gone from this earth.

Coming now to the right of representation, we stress first the following pertinent provisions of the Civil Code:

Art. 970. Representation is a right created by fiction of law, by virtue of which the representative is raised to the place and the degree of the person represented, and acquires the rights which the latter would have if he were living or if he could have inherited.

Art. 971. The representative is called to the succession by the law and not by the person represented. The representative does not succeed the person represented but the one whom the person represented would have succeeded.

Art. 981. Should children of the deceased and descendants of other children who are dead, survive, the former shall inherit in their own right, and the latter by right of representation.

There is no question that as the legitimate daughter of Teodoro and thus the granddaughter of Eleno and Rafaela, Doribel has a right to represent her deceased father in the distribution of the intestate estate of her grandparents. Under Article 981, quoted above, she is entitled to the share her father would have directly inherited had he survived, which shall be equal to the shares of her grandparents' other children.

But a different conclusion must be reached in the case of Delia and Edmundo, to whom the grandparents were total strangers. While it is true that the adopted child shall be deemed to be a legitimate child and have the same rights as the latter, these rights do not include the right of representation. The relationship created by adoption is between only the adopting parents and the adopted child and does not extend to the blood relatives of either party.

In sum, we agree with the lower courts that Delia and Edmundo as the adopted children and Doribel as the legitimate daughter of Teodoro Sayson and Isabel Bautista, are their exclusive heirs and are under no obligation to share the estate of their parents with the petitioners. The Court of Appeals was correct, however, in holding that only Doribel has the right of representation in the inheritance of her grandparents' intestate estate, the other private respondent being only the adoptive children of the deceased Teodoro.

WHEREFORE, the petition is DENIED, and the challenged decision of the Court of Appeals is AFFIRMED in toto, with costs against the petitioners.

Narvasa (C.J.), Griño-Aquino and Medialdea, JJ., concur.

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DEL PRADO v SANTOSNo. L-20946, 23 September 1966

18 SCRA 68

An illegitimate child succeeds his or her illegitimate father to the exclusion of the legitimate brothers and sisters of the latter. The legitimacy of the collateral relatives within the second degree does not create a preference over the illegitimate status of the descendant. Note that under the Family Code, recognition of the filiation of the illegitimate child has been abolished.

Makalintal, J.:

In the Court of First Instance of Rizal, Eugenio C. del Prado filed a complaint to annul a deed executed by Aurea S. Santos, married to Deogracias Demetria, adjudicating to the minor Jesus Santos del Prado, her son allegedly by plaintiff's deceased brother Anastacio C. del Prado, a parcel of land left by the latter. Plaintiff alleged that he was thus deprived of his rightful share in the estate of his brother. Annulment of the transfer certificate of title issued to the minor by virtue of said deed of adjudication was also prayed for.

In defendant's answer, she averred that her son Jesus Santos del Prado, being an acknowledged natural child of the deceased, was entitled to the property left by the latter; and on the ground that the action had been maliciously filed, she interposed a counterclaim for damages.

On July 3, 1959 the parties entered into the following stipulation of facts:

Come now the parties in the above entitled case, assisted by their respective counsels, and to the Honorable Court respectfully state that, for purposes of this action only, and without in any way constituting an admission for any other purpose and with the understanding that the same may not be used against them in any other proceeding, as provided in Rule 23, Section 3 of the Rules of Court, the parties admit that the following facts are true and may be considered by the Court as proved without need of introduction of any evidence thereon:

1. Anastacio C. del Prado died intestate in the City of Manila on August 11, 1958; at the time of his death, Anastacio C. del Prado was single;

2. Plaintiff Eugenio C. del Prado is a legitimate brother of the late Anastacio C. del Prado;

3. Defendant Aurea S. Santos was legally married to Deogracias Demetria in 1945, but has been in fact separated from him;

4. The deceased Anastacio C. del Prado and defendant Aurea S. Santos cohabited with each other without the benefit of matrimony; as a result of that cohabitation, the late Anastacio C. del Prado and defendant Aurea S. Santos had one son - the minor Jesus S. del Prado - who

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was born on December 19, 1957, and whom Anastacio C. del Prado admitted to be his son in the latter's birth certificate;

5. After the death of Anastacio C. del Prado, his estate x x x was adjudicated to the minor Jesus del Prado. x x x.

The following facts raises one principal issue of law, namely: "who has a better right to the aforesaid parcel of land left by the late Anastacio C. del Prado, plaintiff or minor Jesus S. del Prado?" x x x.

Upon the foregoing stipulation, the parties submitted the case without further evidence.

The lower court dismissed the complaint. Plaintiff elevated the matter to the Court of Appeals, which certified the case to this Court, the question involved being purely legal.

The lower court ruled - and this ruling is assigned as error - that since the deceased Anastacio C. del Prado "left no legitimate descendants or ascendants the minor Jesus S. del Prado shall succeed to the entire estate left by his supposed father to the exclusion of the plaintiff who is only a collateral relative."

Appellant contends: Even if said minor is the illegitimate son of the deceased, the latter never recognized him as such, no showing having been made that it was at the instance or with the consent of the deceased that said minor was entered as his son in the civil registry or that the birth certificate where the recognition appears authentic.

Appellant's position is untenable. The facts stipulated by him and by appellee are clear: "The deceased Anastacio C. del Prado and defendant Aurea S. Santos cohabited with each other without the benefit of matrimony; as a result of that cohabitation, the late Anastacio C. del Prado and defendant Aureao S. Santos had one son - the minor Jesus S. del Prado - who was born on December 19, 1957, and whom Anastacio C. del Prado admitted to be his son in the latter's birth certificate."

Since Anastacio C. del Prado died in 1958 the new Civil Code applies (Article 263). Illegitimate children other than natural are entitled to successional rights (Art. 287). Where, as in this case, the deceased died intestate, without legitimate descendants or ascendants, then his illegitimate child shall succeed to his entire estate (Article 988), to the exclusion of appellant who is only a collateral relative.

The decision appealed is affirmed, with costs against appellant.

Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Bengzon, J.P., Zaldivar, Sanchez and Castro, JJ., concur. Regala, J., took no part.

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CACHO v UDANNo. L-19996, 30 April 1965

13 SCRA 693

The Court reaffirms the exclusion of legitimate brothers and sisters of the decedent by the latter's illegitimate child. Note, however, that the Court disallowed the intervention of the brothers in the probate proceedings, since regardless of the outcome of the probate, the brothers cannot inherit from the deceased. Implicitly, the lower court also disqualified the said brothers from claiming any right against the illegitimate son of the deceased by reason of Article 992, when the said court instructed the fiscal to study the propriety of instituting escheat proceedings.

Reyes, J.B.L., J.:

x x x

From the records it can be gleaned that on 13 December 1959 one Silvina G. Udan, single, and a resident of San Marcelino, Zambales, died leaving a purported will naming her son, Francisco G. Udan, and one Wencesla Cacho, as her sole heirs, share and share alike. Wencesla Cacho filed a petition to probate said will in the Court of First Instance of Zambales on 14 January 1960. On 15 February 1960, Rustico G. Udan, legitimate brother of the testatrix, filed an opposition to the probate x x x. On 9 June 1960 Francisco G. Udan, through counsel, filed his opposition to the probate of this will. On 15 September 1960 oppositor Rustico G. Udan, through counsel, verbally moved to withdraw his opposition dated 13 February 1960, due to the appearance of Francisco G. Udan, the named heir in the will and said opposition was ordered withdrawn. After one witness, the Notary Public who made and notarized the will, had testified in court, oppositor Francisco G. Udan died on June 1961 in San Marcelino, Zambales, Philippines.

After the death of Francisco G. Udan, John G. Udan and Rustico G. Udan, both legitimate brothers of the testatrix Silvina G. Udan, filed their respective oppositions on the ground that the will was not attested and executed as required by law; that the testatrix was incapacitated to execute it; and that it was procured by fraud or undue influence. On 20 January 1962 proponent-appellee, through counsel, filed a Motion to Dismiss Oppositions filed by the oppositors, and on 20 February 1962, the Honorable Court of First Instance of Zambales issued an Order disallowing these two oppositions for lack of interest in the estate and directing the Fiscal to study the advisability of filing escheat proceedings. On 26 and 30 March 1962, both oppositors filed their Motions for Reconsideration, through the respective counsels, and these motions were both denied by the lower court on 25 April 1962. On 7 May 1962, oppositors filed their joint Notice of Appeal.

The first issue tendered by appellants is whether the oppositor brothers, John and Rustico Udan, may claim to be heirs intestate of their legitimate sister, the late Silvina Udan. We find that the court below correctly held that they were not, for at the time of her death Silvina's illegitimate son, Francisco Udan, was her heir intestate, to

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the exclusion of her brothers. This is clear from Articles 988 and 1003 of the governing Civil Code of the Philippines, in force at the time of the death of the testatrix:

Art. 988. In the absence of legitimate descendants or ascendants, the illegitimate children shall succeed to the entire estate of the deceased.

Art. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles.

These legal provisions decree that collateral relatives of one who died intestate inherit only in the absence of descendants, ascendants and illegitimate children. Albeit the brothers and sisters can concur with the widow or widower under Article 1101, they do not concur, but are excluded by the surviving children, legitimate or illegitimate (Art. 1003).

That Francisco Udan was the illegitimate son of the late Silvina is not denied by the oppositors and he is so acknowledged to be in the testament, where said Francisco is termed "son" by the testatrix. As the latter was admittedly single, the son must be necessarily illegitimate (presumptively natural under Article 277).

The trial court, therefore, committed no error in holding that John and Rustico Udan had no standing to oppose the probate of the will. For if the will is ultimately probated, John and Rustico are excluded by its terms from participation in the estate; and if probate be denied, both oppositors-appellants will be excluded by the illegitimate son, Francisco Udan, as sole intestate heir, by operation of law.

The death of Francisco two years after his mother's demise does not improve the situation of appellants. The rights acquired by the former are only transmitted by his death to his own heirs at law, not to the appellants, who are legitimate brothers of his mother, for the reason that, as correctly decided by the court below, the legitimate relatives of the mother cannot succeed her illegitimate child. This is clear from Article 992 of the Civil Code:

Art. 992. An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother, nor shall such children or relatives inherit in the same manner from the illegitimate child.

For the oppositors-appellants it is argued that while Francisco Udan did survive his mother, and acquired the rights to the succession from the moment of her death (Art. 777, Civil Code), still he did not acquire the inheritance until he accepted it. This argument fails to take into account that the Code presumes acceptance of an inheritance if the latter is not repudiated in due time (Civil Code, Art, 1057, par.2), and that repudiation, to be valid, must appear in a public or authentic instrument, or petition to the court. There is no document or instrument or pleading in the records showing repudiation of the inheritance by Francisco Udan. The latter's own opposition to the probate of the alleged will is perfectly compatible with the intention to exclude the proponent Cacho as testamentary co-heir, and to claim the entire inheritance as heir

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ab intestato.Finally, it is urged that as probate is only concerned with the due execution of a

testament, any ruling on the successional rights of oppositors-appellants is at present premature. Inquiry into the hereditary rights of the appellants is not premature, if the purpose is to determine whether their opposition should be excluded in order to simplify and accelerate the proceedings. If, as already shown, appellants cannot gain any hereditary interest in the estate whether the will is probated or not, their intervention would merely result in unnecessary complication.

It may not be amiss to note, however, that the hearings on the probate must still proceed to ascertain the rights of the proponent Cacho as testamentary heir.

WHEREFORE, the order under appeal is affirmed, without prejudice to further proceedings in the case, conformably to this opinion. Costs against appellants John G. Udan and Rustico G. Udan.

Bengzon, C.J., Bautista Angelo, Concepcion, Paredes, Dizon, Regala, Makalintal, Bengzon, J.P., and Zaldivar, JJ., concur. Barrera, J., took no part.

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CUARTICO v CUARTICONo. 11190-R, 16 November 1955

52 O.G. 1489

Cuartico explains the reason for the barrier in Article 992.

Hernandez, J.:

x x x

The records discloses that on June 12, 1941, petitioner Tranquilino Cuartico was named administrator of the Intestate Estate of said deceased. On December 13, 1949, after all money claims against the estate had been settled, the administrator and his co-petitioners moved that they be declared the exclusive heirs of the deceased. On May 2, 1952, the oppositors filed a similar motion praying that they, along with the petitioners, be declared heirs of the deceased. After trial, the court below, as aforestated, declared the petitioners and oppositors legal heirs of Patricia Clavecilla whereupon the petitioners, unsatisfied with the ruling, interposed the present appeal.

The main question that instantly presented itself is who is entitled to succeed ab intestato to the inheritance left by Patricia Clavecilla.

It appears indisputably clear between the parties that Patricia Clavecilla died single and ab intestato on October 4, 1940 in Manjuyod, Negros Oriental and that she left an inheritance of six parcels of land and houses. The petitioners-appellants named Tranquilino, Cipriano, Luis, Demetrio and Pancrasio all surnamed Cuartico are the legitimate children of Macario Cuartico and Maria Clavecilla, now both deceased. The oppositors-appellees along with the appellants' father Macario Cuartico, are the children of Eleno Cuartico and Susano Germodo, both deceased.

The evidence for the appellants tends to show that their mother Maria Clavecilla together with Patricia and Romana Clavecilla were children by different women of a Chinese named Juan Clavecilla; that Maria's mother is Sinforosa Romano who, after Maria's birth, married one Benigno Martinez; that Patricia's mother is Susana Germodo who upon Patricia's birth, married Eleno Cuartico from which wedlock were born the appellees Feliciana, Gregorio, Paula, Macario the appellant's father, and Macario now deceased but represented by a daughter named Generosa; and that Ramona's mother is a woman named Bonifacia with an unknown surname. Romana died at an early age, single and without issue. Maria's death occurred in 1925 while Patricia as above indicated died on October 4, 1940.

The appellants claiming to be natural nephews of Patricia Clavecilla aver, moreover, that their mother Maria Clavecilla is a natural sister of Patricia Clavecilla and that both women were recognized natural daughters of Juan Clavecilla, mainly on the strength of a private instrument supposedly executed by the latter on June 26, 1896.

Upon the other hand, the appellees contend that Juan Clavecilla was legally

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married to Bonifacia Cardente on July 13, 1969 as evidenced by the parochial church records of Malabuyoc, Cebu; that from said marriage, Romana Clavecilla was born; and that Bonifacia Cardente died on March 6, 1900 followed shortly by Juan Clavecilla who died in 1903. The appellees further maintain that Patricia Clavecilla and Maria Clavecilla, assuming that the latter was a child of Juan Clavecilla, were both adulterous children and could not have been validly recognized by Juan Clavecilla who, during their conception and birth, was legally and validly married to Bonifacia Cardente.

In the trial below, the appellees tried to prove that Maria Clavecilla was neither a natural nor an adulterous daughter of Juan Clavecilla but was merely a maid of the latter; that Maria's real name was Maria Romana; and that she was born of the wedlock between Sinforosa Romano and Benigno Martinez. Appellees admit that Maria Clavecilla was legally married to their brother, Macario Cuartico; that from said marriage, the herein appellants were born and that consequently, appellants are entitled to inherit from Patricia Clavecilla namely in representation of appellants' father, Macario, as ostensibly held by the trial court.

No dispute exists that the appellees are the children of Eleno Cuartico and Susana Germodo. Susana Germodo being the natural mother of Patricia Clavecilla, it results therefore, that the appellees are natural half-brothers, half-sisters and half-niece respectively of Patricia Clavecilla.

x x x

We begin with an inquiry into the alleged rights of the appellees to be declared heirs of and to succeed Patricia Clavecilla. During the trial, petitioners adduced in evidence a certificate issued by the parish of Alegria, Cebu attesting to the marriage between Eleno or Lino Cuartico and Susana Germodo, parents of the herein oppositors. Said marriage purportedly took place in Alegria, Cebu on June 1, 1880. Remarkably, the oppositors proffered no objection to the admission of said exhibit which explicitly shows that the oppositors' parents were legally married and inferentially that said oppositors were legitimate children. It is plainly evident, therefore, that the oppositors who are illegitimate children of Susana Germodo and Lino Cuartico are seeking to inherit ab intestato from their half-sister, Patricia Clavecilla. This pretension is certainly not countenanced under Article 943 of the Old Civil Code which provision is substantially reproduced as Article 992 in the New Civil Code. Article 943 reads:

Art. 943. A natural child has no right to succeed ab intestato the legitimate children and relatives of the father or mother who has acknowledged it; nor shall such children or relatives so inherit from the natural child.

The reason behind the absolute prohibition on intestate succession is obviously the intervening antagonism and incompatibility between members of the natural family and those of the legitimate family. In the words of Manresa:

Entre el hijo natural y los parientes legitimos del padre o madre que los

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reconcio, niega el Codigo toda relacion succesoria. No puedan decirse parientes y no tienen derecho a heredar. Existe desde luego un vinculo de sangre; pero esta vinculo no lo reconoce hechos y en la presunta voluntad de los interesados; el hijo natural es, mirado con desprecio por la familia legitima; la familia legitima es, en cambio, odiada por el hijo natural; este considera la situacion privilegiada de aquella y los recursos de que por ella se ve privado; aquella en cambio, solo ve en el hijo natural el producto del vicio, la prueba viva de un barron para la familia. Toda relacion esta rota ordinariamente en la vida; la ley no hace mas que reconocer verdad, evitando nuevos motivos de resentimiento.

Los hojos y los parientes legitimos del padre o madre que reconocio un hijo natural, son todos los parientes en linea recta descendente o ascendente, o en linea colateral. La familia legitima queda separada por completo de la natural; ni los individuos de ista heredan a los de Aquila, ni los individuos de aquella pueden heredar a los de ista. (p. 127, Commentarios al Codigo Civil.)

This legal provision and its rational have found reiteration in several rulings of our Supreme Court, (Llorente v Rodriguez, 10 Phil 585; Centeno v Centeno, 52 Phil 322; Director of Lands v Aguas, 63 Phil 279; Grey v Fabie, 40 Off. Gaz. 1st Supplement, No. 3, 196).

The appellants, on the other hand, pretend to succeed Patricia Clavecilla by reason of their alleged status of natural nephews of the latter. The appellees attempt to refute appellants' claims by alleging that Maria Clavecilla was merely a maid and not a child of Juan Clavecilla and could not have been, therefore, a relative of Patricia Clavecilla who was admittedly a daughter of Juan Clavecilla. Moreover, appellees claim, that assuming that Maria was a child of Juan Clavecilla along with Patricia Clavecilla, neither Maria nor Patricia could have been recognized as natural daughters by Juan Clavecilla who was, at the time of their (Maria's and Patricia's) birth legally and validly married with Bonifacia Cardente.

x x x

In view of all the foregoing, and finding that neither the appellants nor the appellees are entitled to succeed ab intestato to the inheritance left by Patricia Clavecilla, it behooves us to call upon the State to succeed.

Wherefore, the appealed order should be, as it is hereby, revoked and the court a quo is hereby instructed, when this decision becomes final, to furnish the provincial fiscal of Negros Oriental a copy of this decision for such action as may be proper pursuant to Rule 92 of the Rules of Court. No special pronouncement as to costs in this instance.

SO ORDERED.

Gutierrez, David and Martinez, JJ., concur.

518

CORPUS v CORPUSNo. L-22469, 23 October 1978

85 SCRA 567

Corpus illustrates an instance where a legitimate child is excluded from the inheritance of an illegitimate relative.

Aquino, J.:

Teodoro R. Yangco died in Manila on April 20, 1939 at the age of seventy-seven years. His will dated August 29, 1934 was probated in the Court of First Instance of Manila in Special Proceeding No. 54863. The decree of probate was affirmed in this Court's 1941 decision in Corpus v Yangco, 73 Phil 527. The complete text of the will is quoted in that decision.

Yangco had no forced heirs. At the time of his death, his nearest relatives were (1) his half brother, Luis R. Yangco, (2) his half sister, Paz Yangco, the wife of Miguel Osorio, (3) Amalia Corpus, Jose A. V. Corpus, and Ramon L. Corpus, the children of his half brother, Pablo Corpus, and (4) Juana (Juanita) Corpus, the daughter of his half brother Jose Corpus. Juanita died in October 1944 at Palauig, Zambales.

Teodoro R. Yangco was the son of Luis Rafael Yangco and Ramona Arguelles, the widow of Tomas Corpus. Before her union with Luis Rafael Yangco, Ramona had begotten five children with Tomas Corpus, two of whom were the aforementioned Pablo Corpus and Jose Corpus.

Pursuant to the order of the probate court, a project of partition dated November 26, 1945 was submitted by the administrator and the legatees named in the will. That project of partition was opposed x x x.

The probate court in its order of December 26, 1946 approved the project of partition. x x x.

From that order, Pedro Martinez, Juliana de Castro, Juanita Corpus (deceased) and the estate of Luis R. Yangco appealed to this Court (L-1476). Those appeals were dismissed in this Court's resolutions of October 10 and 31, 1947 after the legatees and the appellants entered into compromise agreements. x x x. As the resolutions dismissing the appeals became final and executory on October 14 and November 4, 1947, entries of judgment were made on those dates.

Pursuant to the compromise agreement, Tomas Corpus signed a receipt dated October 24, 1947 wherein he acknowledged that he received from the Yangco estate the sum of two thousand pesos (P2,000.00) "as settlement in full of my share in the compromise agreement as per understanding with Judge Roman Cruz, our attorney in this case."

519

On September 20, 1949, the legatees executed an agreement for the settlement and physical partition of the Yangco estate. The probate court approved that agreement and noted that the 1945 project of partition was pro tanto modified. That did not set at rest the controversy over the Yangco estate.

On October 5, 1951, Tomas Corpus, as the sole heir of Juanita Corpus, filed an action in the Court of First Instance of Manila to recover the supposed share in Yangco's intestate estate. He alleged in his complaint that the dispositions in Yangco's will imposing perpetual prohibitions upon alienation rendered it void under article 785 of the old Civil Code and that the 1949 partition is invalid and, therefore, the decedent's estate should be distributed according to the rules of intestacy.

The trial court in its decision of July 2, 1956 dismissed the action x x x. It held that the intrinsic validity of the Yangco's will was passed upon it its order dated December 26, 1946 in Special Proceeding No. 54863 approving the project of partition for the testator's estate.

Tomas Corpus appealed to the Court of Appeals which x x x certified the appeal to this Court x x x.

Appellant Corpus contends in this appeal that the trial court erred in holding (1) that Teodoro R. Yangco was a natural child, (2) that his will had been duly legalized, and (3) that plaintiff's action is barred by res judicata and laches.

x x x The appeal may be resolved by determining whether Juanita Corpus, the mother of appellant Tomas Corpus, was a legal heir of Yangco. Has Tomas Corpus a cause of action to recover his mother's supposed intestate share in Yangco's estate?

To answer that question, it is necessary to ascertain Yangco's filiation. The trial court found that Yangco "a su muerte tambien le abrevivieron Luis y Paz appellidados Yangco, hermanos naturales reconocidos por su padre natural Luis R. Yangco." The basis of the trial court's conclusion that Teodoro R. Yangco was an acknowledged natural child wand not a legitimate child was the statement in the will of his father, Luis Rafael Yangco, dated June 14, 1907, that Teodoro and his three other children were his acknowledged natural children. His exact words are:

Primera, declaro que tengo cuatro hijos naturales reconocidos, llamados Teodoro, Pas, Luisa y Luis, los cuales son mis herederos forzosos.

x x x

Appellant Corpus assails the probative value of the will of Luis R. Yangco, identified as Exhibit 1 herein, which he says is a mere copy of Exhibit 20, as found in the record on appeal in Special Proceeding No. 54863. He contends that it should not prevail over the presumption of legitimacy found in section 69, Rule 123 of the old Rules of Court and over the statement of Samuel W. Stagg in his biography of Teodoro R. Yangco, that Luis Rafael Yangco made in a second marital venture with

520

Victoria Obin, implying that he had a first marital venture with Ramona Arguelles, the mother of Teodoro.

These contentions have no merit. The authenticity of the will of Luis Rafael Yangco, as reproduced in Exhibit 1 herein and as copied from Exhibit 20 in the proceeding for the probate of Teodoro R. Yangco's will, is incontestable. The said will is part of a public or official judicial record.

On the other hand, the children of Ramona Arguelles and Tomas Corpus are presumed to be legitimate. A marriage is presumed to have taken place between Ramona and Tomas. Semper praesumitur pro matrimonio. It is disputably presumed "that a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage," "that a child born in lawful wedlock, there being no divorce, absolute or from bed and board, is legitimate," and "that things have happened according to the ordinary course of nature and the ordinary habits of life." (Sec. 5(z), (bb) and (cc), Rule 131, Rules of Court.)

Since Teodoro R. Yangco was an acknowledged natural child or was illegitimate and since Juanita Corpus was the legitimate child of Jose Corpus, himself a legitimate child, we hold that appellant Tomas Corpus has no cause of action for the recovery of the supposed hereditary share of his mother Juanita Corpus, as a legal heir, in Yangco's estate. Juanita Corpus was not a legal heir of Yangco because there is no reciprocal succession between legitimate and illegitimate relatives. The trial court did not err in dismissing the complaint of Tomas Corpus.

Article 943 of the old Civil Code provides that "el hijo natural y el legitimado no tienen derecho a suceder ab intestato a los hijos y parientes legitimos del padre o madre que lo haya reconocido, ni ellos al hijo natural ni al legitimado." Article 943 "prohibits all successory reciprocity mortis causa between legitimate and illegitimate relatives." (6 Sanchez Roman, Civil Code, pp. 996-997 cited in Director of Lands v Aguas, 63 Phil 279, 287. See 16 Scaevola, Codigo Civil, 4d, 455-6.) x x x.

Appellant Corpus concedes that if Teodoro R. Yangco was a natural child, he (Tomas Corpus) would have no legal personality to intervene in the distribution of Yangco's estate.

The rule in Article 943 is now found in Article 992 of the Civil Code which provides that "an illegitimate child has no right to inherit ab intestato from the legitimate children or relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child."

That rule is based on the theory that the illegitimate child is disgracefully looked upon by the legitimate family while the legitimate family is, in turn, hated by the illegitimate child. The law does not recognize the blood tie and seeks to avoid further grounds of resentment.

Under Articles 944 and 945 of the Spanish Civil Code, "if an acknowledged

521

natural or legitimated child should die without issue, either legitimate or acknowledged, the father or mother who acknowledged such child shall succeed to its entire estate; and if both acknowledged it and are alive, they shall inherit from it share and share alike. In default of natural ascendants, natural and legitimated children shall be succeeded by their natural brothers and sisters in accordance with the rules established for legitimate brothers and sisters." Hence, Teodoro R. Yangco's half brothers on the Corpus side, who were legitimate, had no right to succeed to his estate under the rules of intestacy.

Following the rule in Article 992, formerly Article 942, it was held that the legitimate relatives of the mother cannot succeed her illegitimate child (Cacho v Udan, L-19996, April 30, 1965, 13 SCRA 693. See De Guzman v Sevilla, 47 Phil 991.)

Where the testatrix, Rosario Fabie, was the legitimate daughter of Jose Fabie, the two acknowledged natural children of her uncle, Ramon Fabie, her father's brother, were held not to be her legal heirs (Grey v Fabie, 88 Phil 128).

By reason of that same rule, the natural child cannot represent his natural father in the succession to the estate of the legitimate grandfather (Llorente v Rodriguez, 10 Phil 585; Centeno v Centeno, 52 Phil 322; Allarde v Abaya, 57 Phil 909). The natural daughter cannot succeed to the estate of her deceased uncle, a legitimate brother of her natural mother (Anuran v Aquino and Ortiz, 38 Phil 29).

WHEREFORE, the lower court's judgment is affirmed. No costs.

SO ORDERED.

Barredo (Actg. Chairman), Antonio, Concepcion, Jr. and Santos, JJ., concur.

522

LEONARDO v COURT OF APPEALSNo. L-51263, 28 February 1983

120 SCRA 890

The filiation of a person may be looked into for the purpose of determining his qualification to inherit from a deceased person. In Leonardo, the Court found after looking into the birth certificate of the petitioner, that he is an illegitimate child and hence barred by Article 992 to claim a share in the inheritance of his great grandmother.

De Castro, J.:

x x x

From the record, it appears that Francisca Reyes who died intestate on July 21, 1942 was survived by two (2) daughters, Maria and Silvestra Cailles, and a grandson, Sotero Leonardo, the son of her daughter, Pascuala Cailles who predeceased her. Sotero Leonardo died in 1944, while Silvestra Cailles died in 1949 without any issue.

On October 29, 1964, petitioner Cresenciano Leonardo, claiming to be the son of the late Sotero Leonardo, filed a complaint for ownership of properties, sum of money and accounting in the Court of First Instance of Rizal seeking judgment (1) to be declared one of the lawful heirs of the deceased Francisca Reyes, entitled to one-half share in the estate of said deceased jointly with defendant, private respondent herein, Maria Cailles, (2) to have the properties left by said Francisca Reyes, described in the complaint, partitioned between him and defendant Maria Cailles, and (3) to have an accounting of all the income derived from said properties from the time defendant took possession thereof until said accounting shall have been made, delivering to him his share therein with legal interest.

Answering the complaint, private respondent Maria Cailes asserted exclusive ownership over the subject properties and alleged that petitioner is an illegitimate child who cannot succeed by right of representation. For his part, the other defendant, private respondent James Bracewell, claimed that said properties are not his by virtue of a valid and legal deed of sale which Maria Cailles had subsequently executed in his favor. These properties were allegedly mortgaged to respondent Rural Bank of Parañaque, Inc. sometime in September 1963.

After hearing on the merits, the trial court rendered judgment in favor of the petitioner, the dispositive portion of which was earlier quoted, finding the evidence of the private respondent insufficient to prove ownership of the properties in suit. From said judgment, private respondents appealed to the Court of Appeals which, as already stated, reversed the decision of the trial court, thereby dismissing petitioner's complaint. Reconsideration having been denied by the appellate court, this petition for review was filed on the following assignment of errors:

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x x xII.

RESPONDENT COURT ERRED IN HOLDING THAT PETITIONER HAS NOT ESTABLISHED HIS FILIATION.

III.

RESPONDENT COURT ERRED IN HOLDING THAT PETITIONER, AS THE GREAT GRANDSON OF FRANCISCA REYES, HAS NO LEGAL RIGHT TO INHERIT BY REPRESENTATION.

x x x

Anent the second assignment of error, the Court of Appeals made the following findings:

Going to the issue of filiation, plaintiff claims that he is the son of Sotero Leonardo, the son of one of the daughters (Pascuala) of Francisca Reyes. He further alleges that since Pascuala predeceased Francisca Reyes, and that his father, Sotero, who subsequently died in 1944, survived Francisca Reyes, plaintiff can consequently succeed to the estate of Francisca Reyes by right of representation.

In support of his claim, plaintiff submitted in evidence his alleged birth certificate showing that his father is Sotero Leonardo, married to Soccoro Timbol, his alleged mother.

Since his supposed right will either rise or fall on the proper evaluation of this vital evidence, We have minutely scrutinized the same, looking for that vital link connecting him to the family tree of the deceased Francisca Reyes. However, this piece of evidence does not in any way lend credence to his tale.

This is because the name of the child described in the birth certificate is not that of the plaintiff but a certain "Alfredo Leonardo" who was born on September 13, 1938 to Sotero Leonardo and Socorro Timbol. Other than his bare allegation, plaintiff did not submit any durable evidence showing that the "Alfredo Leonardo" mentioned in the birth certificate is no other than he himself. Thus, even without taking time and space to go into further details, We may safely conclude that plaintiff failed to prove his filiation which is a fundamental requisite in this action where he is claiming to be an heir in the inheritance in question.

That is likewise a factual finding which may not be disturbed in this petition for review in the absence of a clear showing that said finding is not supported by substantial evidence, or that there was grave abuse of discretion on the part of the court making the finding of fact.

Referring to the third assignment of error, even if it is true that petitioner is a

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child of Sotero Leonardo, still he cannot, by right of representation, claim a share of the estate left by the deceased Francisca Reyes considering that, as found again by the Court of Appeals, he was born outside of wedlock as shown by the fact that when he was born on September 13, 1938, his alleged putative father and mother were not yet married; and what is more, his alleged father's first marriage was still subsisting. At most, petitioner would be an illegitimate child who has no right to inherit ab intestato from the legitimate children and relatives of his father, like the deceased Francisca Reyes. (Article 992, Civil Code of the Philippines.)

WHEREFORE, the decision of the Court of Appeals sought to be reviewed in this petition is hereby affirmed, with costs against the petitioner.

SO ORDERED.

Makasiar (Chairman), Concepcion, Jr., Guerrero and Escolin, JJ., concur. Aquino, J., on leave. Abad Santos, J., I concur with the observation that I would have dismissed the petition by minute resolution for lack of merit.

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DIAZ v INTERMEDIATE APPELLATE COURTNo. L-66574, 17 June 1987

150 SCRA 645

This case illustrates the harsh effects of Article 992. As will be noted, the legitimate collateral relative of the intestate was preferred over the illegitimate descendants. There was no showing that between the grandmother and her illegitimate grandchildren, there was animosity. It must likewise be noted that the deceased grandmother did not have any other descendants other than the illegitimate children who were excluded from her inheritance.

Paras, J.:

Private respondent filed a Petition dated January 23, 1976 with the Court of First Instance of Cavite in Sp. Proc. Case No. B-21, "In the Matter of the Intestate Estate of the Late Simona Pamuti vda. de Santero," praying among other things, that the corresponding letters of administration be issued in her favor and that she be appointed as special administratrix of the properties of the deceased Simona Pamuti vda. de Santero.

It is undisputed: (1) that Felisa Pamuti Jardin is a niece of Simona Pamuti vda. de Santero who together with Felisa's mother, Juliana, were the only legitimate children of the spouses Felipe Pamuti and Petronila Asuncion; (2) that Juliana married Simon Jardin and out of their union were born Felisa Pamuti and another child who died during infancy; (3) that Simona Pamuti vda. de Santero is the widow of Pascual Santero and the mother of Pablo Santero; (4) that Pablo Santero was the only legitimate son of his parents Pascual Santero and Simona Pamuti vda. de Santero; (5) that Pascual Santero died in 1970; Pablo Santero in 1973 and Simona Santero in 1976; (6) that Pablo Santero, at the time of his death was survived by his mother Simona Santero and has six minor natural children to wit: four minor children with Anselma Diaz and two minor children with Felixberta Pacursa.

Judge Jose Raval in his Orders dated December 1, 1976 and December 9, 1976 declared Felisa Pamuti Jardin as the sole legitimate heir of Simona Pamuti vda. de Santero.

Before the trial court, there were 4 interrelated cases filed to wit:

(a) Sp. Proc. No. B-4 - is the Petition for the Letters of Administration of the Intestate Estate of Pablo Santero;

(b) Sp. Proc. No. B-5 - is the Petition for the Letters of Administration of the Intestate Estate of Pascual Santero;

(c) Sp. Proc. No. B-7 - is the Petition for Guardianship over the properties of an Incompetent Person, Simona Pamuti vda. de Santero;

(d) Sp. Proc. No. B-21 - is the Petition for the Settlement of the Intestate Estate of Simona Pamuti vda. de Santero.

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Felisa Jardin upon her Motion for Intervention in Sp. Proc. Nos. B-4 and B-5, was allowed to intervene in the intestate estates of Pablo Santero and Pascual Santero by Order of the Court dated August 24, 1977.

Petitioner Anselma Diaz, as guardian of her minor children, filed her Opposition and Motion to Exclude Felisa Pamuti Jardin dated March 13, 1980, from further taking part or intervening in the settlement of the intestate estate of Simona Pamuti vda. de Santero, as well as in the intestate estate of Pascual Santero and Pablo Santero.

Felixberta Pacursa, guardian for her minor children, filed thru counsel, her Manifestation of March 14, 1980 adopting the Opposition and Motion to Exclude Felisa Pamuti, filed by Anselma Diaz.

On May 20, 1980, Judge Ildefonso M. Bleza issued an order excluding Felisa Jardin "from further taking part or intervening in the settlement of the intestate estate of Simona Pamuti vda. de Santero, as well as in the intestate estates of Pascual Santero and Pablo Santero and declared her to be, not an heir of the deceased Simona Pamuti vda. de Santero.

After her Motion for Reconsideration was denied by the trial court in its order dated November 1, 1980, Felisa P. Jardin filed her appeal to the Intermediate Appellate Court in CA-G.R. No. 69814-R. A decision was rendered by the Intermediate Appellate Court on December 14, 1983 (reversing the decision of the trial court) the dispositive portion of which reads -

WHEREFORE, finding the Order appealed from not consistent with the facts and law applicable, the same is hereby set aside and another one entered sustaining the Orders of December 1 and 9, 1976 declaring the petitioner as the sole heir of Simona Pamuti vda. de Santero and ordering oppositors-appellees not to interfere in the proceeding for the declaration of heirship in the estate of Simona Pamuti vda. de Santero.

The Motion for Reconsideration filed by oppositors-appellees (petitioners herein) was denied by the same respondent court in its order dated February 17, 1984 hence, the present Petition for Review with the following:

x x x

The real issue in this case may be briefly stated as follows - who are the legal heirs of Simona Pamuti vda. de Santero - her niece Felisa Pamuti Jardin or her grandchildren (the natural children of Pablo Santero)?

The dispute at bar refers only to the intestate estate of Simona Pamuti vda. de Santero and the issue here is whether oppositors-appellees (petitioners herein) as illegitimate children of Pablo Santero could inherit from Simona Pamuti vda. de Santero, by right of representation of their father Pablo Santero who is a legitimate child of Simona Pamuti vda. de Santero.

527

Now then what is the appropriate law on the matter? Petitioners contend in their pleadings that Art. 990 of the New Civil Code is the applicable law on the case. They contend that said provision of the New Civil Code modifies the rule in Article 941 (old Civil Code) and recognizes the right of representation (Art. 970) to descendants, whether legitimate or illegitimate and that Art. 941, Spanish Civil Code denied illegitimate children the right to represent their deceased parents and inherit from their deceased grandparents, but that rule was expressly changed and/or amended by Art. 990 New Civil Code which expressly grants the illegitimate children the right to represent their deceased father (Pablo Santero) in the estate of their grandmother (Simona Pamuti).

Petitioners' contention holds no water. Since the hereditary conflict refers solely to the intestate estate of Simona Pamuti vda. de Santero, who is the legitimate mother of Pablo Santero, the applicable law is the provision of Art. 992 of the Civil Code x x x.

Pablo Santero is a legitimate child, he is not an illegitimate child. On the other hand, the oppositors (petitioners herein) are the illegitimate children of Pablo Santero.

Article 992 of the new Civil Code provides a barrier or iron curtain in that it prohibits absolutely a succession ab intestato between the illegitimate child and the legitimate children and relatives of the father or mother of said illegitimate child. They may have a natural tie of blood, but this is not recognized by law for the purposes of Art. 992. Between the legitimate family and the illegitimate family there is presumed to be an intervening antagonism and incompatibility. x x x.

Thus, petitioners herein cannot represent their father Pablo Santero in the succession of the latter to the intestate estate of his legitimate mother Simona Pamuti vda. de Santero, because of the barrier provided for under Art. 992 of the new Civil Code.

In answer to the erroneous contention of petitioners that Article 941 of the Spanish Civil Code is changed by Article 990 of the new Civil Code, We are reproducing herewith the reflections of the illustrious Hon. Justice Jose B. L. Reyes which also finds full support from other civilists, to wit:

In the Spanish Civil Code of 1889 the right of representation was admitted only within the legitimate family; so much so that Article 943 of that Code prescribed that an illegitimate child can not inherit ab intestato from the legitimate children and relatives of his father and mother. The Civil Code of the Philippines apparently adhered to this principle since it reproduced Article 943 of the Spanish Code in its own Art. 992, but with fine inconsistency, in subsequent articles (990, 995 and 998) our Code allows the hereditary portion of the illegitimate child to pass to his own descendants, whether legitimate or illegitimate. So that while Art. 992 prevents the illegitimate issue of a legitimate child from representing him in the intestate succession of the grandparent, the illegitimate child can now do so. This difference being indefensible and unwarranted, in the future revision of the Civil Code we shall have to make a

528

choice and decide either that the illegitimate issue enjoys in all cases the right of representation, in which case Art. 992 must be suppressed; or contrariwise maintain said article and modify Articles 995 and 998. The first solution would be more in accord with an enlightened attitude vis-a-vis illegitimate children. (Reflections on the Reform of Hereditary Succession, Journal of the Integrated Bar of the Philippines, First Quarter, 1976, Vol. 4, No. 1, pp. 40-41.)

It is therefore clear from Art. 992 of the New Civil Code that the phrase "legitimate children and relatives of his father or mother" includes Simona Pamuti vda. de Santero as the word "relative" includes all the kindred of the person spoken of. The record shows that from the commencement of this case the only parties who claimed to be the legitimate heirs of the late Simona Pamuti vda. de Santero are Felisa Pamuti Jardin and the six minor natural or illegitimate children of Pablo Santero. Since petitioners herein are barred by the provisions of Article 992, the respondent Intermediate Appellate Court did not commit any error in holding Felisa Pamuti Jardin to be the sole legitimate heir to the intestate estate of the late Simona Pamuti vda. de Santero.

x x x

WHEREFORE, this petition is hereby DISMISSED, and the assailed decision is hereby AFFIRMED.

SO ORDERED.

Fernan (Chairman), Gutierrez, Jr., and Cortes, JJ., concur. Padilla, J., took no part; principal counsel for petitioners is related to me.

529

DIAZ V INTERMEDIATE APPELLATE COURTG.R. No. 66574, 21 February 1990

182 SCRA 427

This resolution settled the motion for reconsideration filed by the illegitimate children on the decision immediately preceding. An argument is raised that the word "relatives" used in Article 992 cannot possibly refer to the grandmother of the illegitimate children, but only to the other collateral relatives. The argument stresses the injustice resulting from the fact that while the illegitimate children of an illegitimate child can exercise the right of representation, the same right is denied the illegitimate children of a legitimate child.

Paras, J.:

The decision of the Second Division of this Court in the case of Anselma Diaz, et al. v Intermediate Appellate Court, et al., G.R. No. 6574, promulgated June 17, 1987 declaring Felisa Pamuti-Jardin to be the sole legitimate heir to the intestate estate of the late Simona Pamuti vda. de Santero, and its Resolution of February 24, 1988 denying the Motion for Reconsideration dated July 2, 1987, are being challenged in this Second Motion for Reconsideration dated July 5, 1988. After the parties had filed their respective pleadings, the Court, in a resolution dated October 27, 1988, resolved to grant the request of the petitioners for oral argument before the court en banc, and the case was set for hearing on November 17, 1988 to resolve the question: Does the term "relatives" in Article 992 of the new Civil Code which reads:

An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child.

include the legitimate parents of the father or mother of the illegitimate children? Invited to discuss as amici curiae during the hearing were the following: Justice Jose B. L. Reyes, former Justice Minister Ricardo C. Puno, Dr. Arturo Tolentino, former Justice Eduardo Caguioa, and Professor Ruben Balane.

x x x

The present controversy is confined solely to the intestate estate of Simona Pamuti vda. de Santero. In connection therewith, We are tasked with determining anew whether petitioners, as illegitimate children of Pablo Santero, could inherit from Simona Pamuti vda. de Santero, by right of representation of their father Pablo Santero who is a legitimate child of Simona Pamuti vda. de Santero.

Petitioners claim that the amendment of Articles 941 and 943 of the old Civil Code (Civil Code of Spain) by Article 990 and 992 of the new Civil Code (Civil Code of the Philippines) constitute a substantial and not a merely formal change, which grants illegitimate children certain successional rights. We do not dispute the fact that the new Civil Code has given illegitimate children successional rights, which rights were never before enjoyed by them under the old Civil Code. They were during that time

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merely entitled to support. In fact, they are now considered as compulsory primary heirs under Article 887 of the new Civil Code (No. 5 in the order of intestate succession). Again, We do not deny that fact. These are only some of the many rights granted by the new Civil Code to illegitimate children. But that is all. A careful evaluation of the new Civil Code provisions, especially Article 902, 982, 989 and 990, claimed by petitioners to have conferred illegitimate children the right to represent their parents in the inheritance of their legitimate grandparents, would in point of fact reveal that such right to this time does not exist.

Let us take a closer look at the above-cited provisions.

Art. 902. The rights of illegitimate children set forth in the preceding articles are transmitted upon their death to their descendants, whether legitimate or illegitimate.

Art. 982. The grandchildren and other descendants shall inherit by right of representation, and if any one of them should have died, leaving several heirs, the portion pertaining to him shall be divided among the latter in equal shares.

Art. 989. If, together with illegitimate children, there should survive descendants of another illegitimate child who is dead, the former shall succeed in their own right and the latter by right of representation.

Art. 990. The hereditary rights granted by the preceding articles to illegitimate children shall be transmitted upon their death to their descendants, who shall inherit by right of representation from their deceased grandparents.

Articles 902, 989 and 990 clearly speak of successional rights of illegitimate children, which rights are transmitted to their descendants upon their death. The descendants (of these illegitimate children) who may inherit by virtue of the right of representation may be legitimate or illegitimate. In whatever manner, one should not overlook the fact that the persons to be represented are themselves illegitimate. The three named provisions are very clear on this matter. The right of representation is not available to illegitimate descendants of legitimate children in the inheritance of a legitimate grandparent. It may be argued, as done by petitioners, that the illegitimate descendants of a legitimate child is entitled to represent by virtue of the provisions of Article 982, which provides that "the grandchildren and other descendants shall inherit by right of representation." Such a conclusion is erroneous. It would allow intestate succession by an illegitimate child to the legitimate parent of his father or mother, a situation which would set at naught the provisions of Article 992. Article 982 is inapplicable to instant case because Article 992 prohibits absolutely a succession ab intestato between the illegitimate child and the legitimate children and relatives of the father or mother. It may not be amiss to state that Article 982 is the general rule and Article 992 the exception.

The rules laid down in Article 982 that "grandchildren and other descendants shall inherit by right of representation" and in Article 902 that the rights of illegitimate children x x x are transmitted upon their death to their descendants, whether legitimate or illegitimate, are subject to the limitation

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prescribed by Article 992 to the end that "an illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother." (Amicus Curiae's Opinion by former Justice Minister Ricardo C. Puno, p. 12.)

According to petitioners, the commentaries of Manresa as above-quoted are based on Article 939 to 944 of the old Civil Code and are therefore inapplicable to the new Civil Code and to the case at bar. Petitioners further argue that the consistent doctrine adopted by this Court in the cases of Llorente v Rodriguez, et al., 10 Phil 585; Centeno v Centeno, 52 Phil 322; and Oyao v Oyao, 94 Phil 204, cited by former Justice Minister Ricardo Puno, Justice Caguioa, and Prof. Balane, which identically held that an illegitimate child has no right to succeed ab intestato the legitimate father or mother of his natural parent (also a legitimate child himself), is already abrogated by the amendments made by the new Civil Code and this cannot be made to apply to the instant case.

Once more, We declined to agree with petitioners. We are fully aware of certain substantial changes in our law of succession, but there is no change whatsoever with respect to the provision of Article 992 of the Civil Code. Otherwise, by the said substantial change, Article 992, which was a reproduction of Article 943 of the Civil Code of Spain, should have been suppressed or at least modified to clarify the matters which are now the subject of the present controversy. While the new Civil Code may have granted successional rights to illegitimate children, those articles, however, in conjunction with Article 992, prohibit the right of representation from being exercised where the person to be represented is a legitimate child. Needless to say, the determining factor is the legitimacy or illegitimacy of the person to be represented. If the person to be represented is an illegitimate child, then his descendants, whether legitimate or illegitimate, may represent him; however, if the person to be represented is legitimate, his illegitimate descendants cannot represent him because the law provides that only his legitimate descendants may exercise the right of representation by reason of the barrier imposed in Article 992. In this wise, the commentaries of Manresa on the matter in issue, even though based on the old Civil Code, are still very much applicable to the new Civil Code because the amendment, although substantial, did not consist of giving illegitimate children the right to represent their natural parents (legitimate) in the intestate succession of their grandparents (legitimate). It is with the same line of reasoning that the three aforecited cases may be said to be still applicable to the instant case.

x x x

It is therefore clear from Article 992 of the new Civil Code that the phrase "illegitimate children and relatives of his father or mother" includes Simona Pamuti vda. de Santero as the word "relative" is broad enough to comprehend all the kindred of the person spoken of. The record reveals that from the commencement of this case the only parties who claimed to be the legitimate heirs of the late Simona Pamuti vda. de Santero are Felisa Pamuti Jardin and the six minor natural or illegitimate children of Pablo Santero. Since petitioners herein are barred by the provisions of Article 992, the respondent Intermediate Appellate Court did not commit any error in holding Felisa

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Pamuti Jardin to be the sole legitimate heir to the intestate estate of the late Simona Pamuti vda. de Santero.

It is Our shared view that the word "relatives" should be construed in its general acceptation. Amicus curiae Prof. Ruben Balane has this to say:

The term relatives, although used many times in the Code, it not defined by it. In accordance, therefore, with the canons of statutory interpretation, it should be understood to have a general and inclusive scope, inasmuch as the term is a general one. Generalia verba sunt generaliter intelligenda. That the law does not make a distinction prevents us from making one; Ubi lex non distinguit, nec nos distinguera debemus. Escriche, in his Diccionario de Legislacion y Jurisprudencia defines parientes as "los que estan relacionados por los vinculos de la sangre, ya sea por proceder unos de otros, como los descendientes y ascendientes, ya sea por proceder de una misma rais o tronco, como los colaterales."

According to Prof. Balane, to interpret the term relatives in Article 992 in a more restrictive sense than it is used and intended is not warranted by any rule of interpretation. Besides, he further states that when the law intends to use the term in a more restrictive sense, it qualifies the term with the word collateral, as in Articles 1003 and 1009 of the new Civil Code.

Thus, the word 'relatives" is a general term and when used in a statute it embraces not only collateral relatives but also all the kindred of the person spoken of, unless the context indicates that it was used in a more restrictive or limited sense - which, as already discussed earlier, is not so in the case at bar.

To recapitulate, We quote this:

The lines of this distinction between legitimates and illegitimates, which goes back very far in legal history, have been softened but not erased by present law. Our legislation has not gone so far as to place legitimate and illegitimate children on exactly the same footing. Even the Family Code of 1987 (EO 209) has not abolished the gradation between legitimate and illegitimate children (although it has done away with the sub classification of illegitimates into natural and "spurious"). It would thus be correct to say that illegitimate children have only those rights which are expressly or clearly granted to them by law. (Amicus Curiae's Opinion by Prof. Ruben Balane, p. 12.)

In the light of the foregoing, We conclude that until Article 992 is suppressed or at least amended to clarify the term "relatives," there is no other alternative but to apply the law literally. Thus, We hereby reiterate the decision of June 17, 1987 and declare Felisa Pamuti-Jardin to be the sole heir to the intestate estate of Simona Pamuti vda. de Santero, to the exclusion of petitioners.

WHEREFORE, the second Motion of Reconsideration is DENIED and the assailed decision is hereby AFFIRMED.

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Fernan (C.J.), Narvasa, Melencio-Herrera, Cruz, Feliciano, Gancayco, Cortes, Grino-Aquino, Medialdea and Regalado, JJ., concur.

Gutierrez, Jr., J., please see dissenting opinion.

Padilla, J., No part; related to petitioners' lead counsel.

Bidin, J., No part, I participated in the appealed decision.

Sarmiento, J., No part. I was a lawyer of some parties in a case still pending in the Court involving the same legal issue.

Gutierrez, Jr., J.: Dissenting Opinion

It is, therefore, with trepidation that I venture to cast a discordant vote on the issue before the Court. But it is perhaps because I am not as deeply steeped in the civil law tradition and in the usually tidy and methodical neatness characterizing its ancient precepts that I discern a change effected by our own version of the Civil Code. The orthodox rules which earlier inflexibly separated the legitimate from the illegitimate families have been relaxed a little. The opprobrium case on illegitimate children and the disadvantages they suffer in law are no longer as overwhelming as before. The wall is no longer as rigid as it used to be. The efforts of the Code Commission and the Congress to make our civil law conform "with the customs, traditions, and idiosyncrasies of the Filipino people and with modern trends in legislation and the progressive principles of law" have resulted in deviations from the strict and narrow path followed by Manresa and other early glossators. I, therefore, do not feel bound to follow the ancient interpretations in the presence of absurd and unjust results brought about by amendments in the new Civil Code.

We have here a case of grandchildren who cannot inherit from their direct ascendant, their own grandmother, simply because their father (who was a legitimate son) failed to marry their mother. There are no other direct heirs. Hence, the properties of their grandmother go to a collateral relative - her niece. If the niece is no longer alive, an even more distant group of grandnieces and grandnephews will inherit as against the grandmother's own direct flesh and blood.

As pointed out by the petitioners, the decision of the Intermediate Appellate Court disregards the order of intestate succession in Arts. 978 to 1014 of the Civil Code and the right of representation in Art. 970 of descendants, whether legitimate of illegitimate as provided by Articles 902, 993 and 995.

I agree that a clear and precise amendment is needed if collateral relatives such as illegitimate children and legitimate uncles, aunts or cousins or illegitimate siblings and their legitimate half-brothers or half-sisters are to inherit from one another. But I must stress that the barrier is between the legitimate and illegitimate families. I see no reason why we should include a grandmother or grandfather among those

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where a firm wall of separation should be maintained. She cannot be a separate "family" from her own grandchildren.

The ancient wall was breached by our Code Commission and Congress in Art. 902 of the Code which provides:

The rights of illegitimate children set forth in the preceding articles are transmitted upon their death to their descendants, whether legitimate or illegitimate.

The illegitimate children of an illegitimate child have the right to represent him in the circumstances given in the preceding articles. Before the Code was amended, that right was reserved to the illegitimate child's legitimate offspring.

I find it absurd why the petitioners could have represented their father Pablo if their grandparents Simona and Pascual had not been legally married. Senator Tolentino, while supporting the majority view of this Court states:

In the present article, the Code Commission took a step forward by giving an illegitimate child the right of representation, which he did not have under the old Civil Code. But in retaining without change provisions of the old Code in Article 992, it created an absurdity and committed an injustice, because while the illegitimate descendant of an illegitimate child can represent, the illegitimate descendant of a legitimate child cannot. The principle that the illegitimate child should succeed by operation of law only to persons with the same status of illegitimacy has thus been preserved. And this is unfair to the illegitimate descendants of legitimate children. Dura lex, sed lex. (Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines, Vol. III, p. 330.)

The adoption of a harsh and absurd interpretation, pending an amendment of the law, does not impress me as correct. Precisely, the word "relatives" in Art. 992 calls for reinterpretation because the Code has been amended. The meaning of "relatives" must follow the changes in various provisions upon which the word's effectivity is dependent.

My dissent from the majority opinion is also premised on a firm belief that law is based on considerations of justice. The law should be interpreted to accord with what appears right and just. Unless the opposite is proved, I will always presume that a grandmother loves her grandchildren - legitimate or illegitimate - more than the second cousins of said grandchildren or the parents of said cousins. The grandmother may be angry at the indiscretions of her son but why should the law include the innocent grandchildren as objects of that anger. "Relatives" can only refer to collateral relatives, to members of a separate group of kins but not to one's own grandparents.

I therefore vote to grant the motion for reconsideration.

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MANUEL v FERRERG.R. No. 117246, 21 August 1995

247 SCRA 476

If an illegitimate child is barred from inheriting ab intestato from the legitimate relatives of his father or mother, the latter are barred in the same manner from inheriting from the illegitimate child.

Notice, however, that in this case Court took special note that the beneficiary of the estate of the illegitimate child (who executed a affidavit of self-adjudication as sole heir) is not even an heir of the deceased illegitimate child. While the beneficiary was raised by the deceased as his own daughter, she was not formally adopted. It would therefore seem that the State was short-changed because in the absence of any qualified intestate heir, the State succeeds the decedent pursuant to Article 1011.

Vitug, J.:

The property involved in this petition for review on certiorari is the inheritance left by an illegitimate child who died intestate without any surviving descendant or ascendant.

Petitioners, the legitimate children of spouses Antonio Manial and Beatriz Guiling, initiated this suit. During his marriage with Beatriz, Antonio had an extra marital affair with one Ursula Bautista. From this relationship, Juan Manuel was born. Several years passed before Antonio Manuel, his wife Beatriz, and his mistress Ursula finally crossed the bar on, respectively, 06 August 1960, 05 February 1981 and 04 November 1976.

Juan Manual, the illegitimate son of Antonio, married Esperanza Gamba. In consideration of the marriage, a donation propter nuptias over a parcel of land x x x covered by Original Certificate of Title (“OCT”) No. P-20594 was executed in favor of Juan Manuel by Laurenciana Manuel. Two other parcels of land, covered by OCT-P-19902 and Transfer Certificate of Title (TCT) No. 41134 were later bought by Juan and registered in his name. The couple were not blessed with a child of their own. Their desire to have one impelled the spouses to take private respondent Modesta Manuel-Baltazar into their fold and so raised her as their own “daughter.”

On 03 June 1980, Juan Manuel executed in favor of Estanislaoa Manuel a Deed of Sale con Pacto de Retro (with a 10-year period of redemption) over a one-half (1/2) portion of his land covered by TCT No. 41134. Juan Manual died intestate on 21 February 1990. Two years later, or on 04 February 1992, Esperanza Gamba also passed away.

On 05 March 1992, a month after the death of Esperanza, Modesta executed an Affidavit of Self-Adjudication claiming for herself the three parcels of land covered by OCT P-20594, OCT P-19902 and TCT No. 41134 (all still in the name of Juan Manuel). Following the registration of the document of adjudication with the Office of

536

the Register of Deeds, the three titles x x x in the name of Juan Manuel were cancelled and new titles x x x were issued in the name of Modesta Manuel-Baltazar. On 19 October 1992, Modesta executed in favor of her co-respondent Estanislaoa Manuel a Deed of Renunciation and Quitclaim over the unredeemed one-half (1/2) portion of the land (now covered by TCT No. 184225) that was sold to the latter by Juan Manuel under the 1980 Deed of Sale con Pacto de Retro. These acts of Modesta apparently did not sit well with petitioners. In a complaint filed before the Regional Trial Court of Lingayen, Pangasinan, the petitioners sought the declaration of nullity of the aforesaid instruments.

The case, there being no material dispute on the facts, was submitted to the court a quo for summary judgment.

The trial court, in its now assailed 15th August 1994 decision, dismissed the complaint holding that petitioners, not being heirs ab intestato of the illegitimate brother Juan Manuel, were not the real parties in interest to institute the suit. x x x.

Petitioners motion of reconsideration was denied by the trial court.

The petition before us raises the following contentions: That –

x x x

Petitioners argue that they are the legal heirs over one-half of Juan’s intestate estate (while the other half would pertain to Juan’s surviving spouse) under the provision of the last paragraph of Article 994 of the Civil Code, providing thusly:

Art. 994. In default of the father or mother, an illegitimate child shall be succeeded by his or her surviving spouse, who shall be entitled to the entire estate.

If the widow or widower should survive with brothers and sisters, nephews and nieces, she shall inherit one-half of the estate, and the latter the other half.

Respondent, in turn, submit that Article 994 should be read in conjunction with Article e992 of the Civil Code which reads:

Art. 992. An illegitimate child has no right to inherit ab intestato from the legitimate children of his father or mother, nor such children or relative inherit in the same manner from the illegitimate child.

Article 992, a basic postulate, enunciates what is so commonly referred to in the rules on succession as the “principle of absolute separation between the legitimate family and the illegitimate family.” The doctrine rejects succession ab intestato in the collateral line between legitimate relatives, on the one hand, and illegitimate relatives, on the other, although it does not totally disavow such succession in the direct line. Since the rule is predicated on the presumed will of the decedent, it has no

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application, however, on testamentary disposition.

This “barrier” between the members of the legitimate and illegitimate family in intestacy is explained by a noted civilist. His thesis:

“x x x. Consequently, when the law speaks of ‘brothers and sisters, nephews and nieces’ as legal heirs of an illegitimate child, it refers to illegitimate brothers and sisters as well as to the children whether legitimate or illegitimate, of such brothers and sisters.”

The Court, too, has had occasions to explain this “iron curtain,” firstly, in the early case of Grey v Favie, and then, in the relatively recent cases of Diaz v Intermediate Appellate Court and de la Puerta v Court of Appeals. x x x

The rule in Article 992 has consistently been applied by the Court in several other cases. Thus, it has ruled that where the illegitimate child had half-brothers who were legitimate, the latter had no right to the former’s inheritance, that the legitimate collateral relatives of the mother cannot succeed from her illegitimate child, that a natural child cannot represent his natural father in the succession to the estate of the legitimate grandparent, that the natural daughter cannot succeed to the estate of her deceased uncle who is a legitimate brother of her natural father, and that an illegitimate child has no right to inherit ab intestato from the illegitimate children and relatives of his father. Indeed, the law on succession is animated by a uniform general intent, and thus no part should be rendered inoperative by, but must always be construed in relation to, any other part as to produce a harmonious whole.

x x x

In her answer to the complaint, Modesta candidly admitted that she herself is not an intestate heir of Juan Manuel. She is right. A ward (ampon), without the benefit of formal (judicial) adoption, is neither a compulsory or a legal heir.

We must hold, nevertheless, that the complaint of petitioners seeking the nullity of the Affidavit of Self-Adjudication executed by Modesta, the three (3) TCT’s issued to her favor, as well as the Deed of Renunciation and Quitclaim in favor of Estanislaoa Manuel, was properly dismissed by the trial court. Petitioners, not being the real parties in interest in the case, had neither the standing nor the cause of action to initiate the complaint.

x x x

WHEREFORE, the appealed decision of the Regional Trial Court of Pangasinan (Branch 37) is AFFIRMED, except insofar as it has awarded moral and exemplary damages, as well as attorney’s fees and litigation expenses in favor of private respondents, which portion is hereby DELETED. No special pronouncement on costs.

SO ORDERED.

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Feliciano (Chairman). Romero and Melo, JJ., concur.

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VDA. DE CRISOLOGO v COURT OF APPEALSNo. L-44051, 27 June 1985

137 SCRA 233

Gutierrez, Jr., J.:

The petitioners filed an action against private respondents for ownership, annulment of sale, and delivery of possession of various properties, with writ of preliminary injunction and damages. Claiming to be legal heirs of the vendor, they sought the annulment of four deeds of sale covering seventeen (17) parcels of land and a residential house executed by Lutgarda Capiao in favor of respondent Mallillin. The latter filed a motion to dismiss which was however, denied for not being indubitable at that stage of the proceedings. The private respondent, therefore, filed his answer.

After termination of the pre-trial proceedings and during the trial on the merits, the parish priest of the Roman Catholic Church, Rev. Father Roque N. Fidol, testified on the witness stand. He was duly cross-examined by Atty. Aguirre, counsel for the petitioners.

The private respondent filed a motion for summary judgment on the following grounds:

1. That Leoguarda (alias Lutgarda) was the illegitimate daughter of the late Julia Capiao consequently plaintiffs are complete strangers to her (Leoguarda) and they (plaintiffs) are not the real parties in interest and have no cause of action, much less personality to maintain the present proceedings; and

x x x

After the petitioners filed an opposition to the motion and the respondent had filed his reply, the respondent judge rendered a summary judgment dismissing the amended complaint. The judgment was based on the following findings:

The original complaint and the amended complaint filed by the plaintiffs alleges in quintessence or in substance the following: "That Julia Capiao, who maintained extra-marital relations with one Victoriano Taccad, begot with him one child and/or forced heir, named Lutgarda (Leogarda) Capiao, who was married to Raymundo Zipagan, both of whom died at Cauayan, Isabela in 1970 and 1964 respectively, without any children and/or immediate forced heirs (paragraph 5 of the amended complaint); that Lutgarda (Leogarda) Capiao, having died on November 11, 1970 at Cauayan, Isabela, without any will intestate succession took place and the herein plaintiffs, as relatives within the fifth civil degree to her (Lutgarda [Leogarda] Capiao), were consequently instituted as Lutgarda's legal heirs and were legally entitled to inherit all the properties which were hers by virtue of the extra-judicial partition, Annex "B", (paragraph 15, amended complaint).

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The motion to dismiss, particularly the motion is reiteration of defendant's previous motion for summary judgment, contains as Page 2-A diagram of the family tree of the plaintiffs and the defendant, showing that their common ancestor was Pablo Capiao. x x x As shown by the family tree or diagram, Julia Capiao, deceased, who maintained extra-marital relations with one Victoriano Taccad, had one issue, the deceased Leogarda and/or Lutgarda Capiao, married to Raymundo Zipagan, both having died without any children and/or immediate forced heirs. x x x.

The source of these properties in question deceased Lutgarda (Leoguarda) is undoubtedly an illegitimate child. In fact, her surname is Capiao and not Taccad, retaining the surname or family name of her mother Julia Capiao. Article 992 of the Civil Code, cited by the movant, the defendant, provides:

x x x

Going back to the diagram, putting in black and white the family tree of the parties graphically showing their relationship with the late Lutgarda Capiao, the source of the properties in question, and their relationship with one another, the question that arises x x x is the following:

The relatives of Julia Capiao, namely: the plaintiffs in this case, can they inherit from Lutgarda Capiao, the original owner of the properties in question?

Clearly, they can not because the legitimate relatives of Julia Capiao cannot inherit from an illegitimate child of the latter, because that is the clear and unmistakable provision of Article 992 of the new Civil Code. Neither can Lutgarda Capiao inherit from the legitimate relatives of Julia Capiao who are the plaintiffs in the instant case.

x x x

The legal questions raised to us are: x x x (2) whether or not the Court of Appeals in dismissing the petition acted in accordance with law or with the applicable decision of the Supreme Court and whether or not it departed from the usual course of judicial proceedings as set down by this Court.

x x x

On certain occasions, this Court has allowed the filing of an appeal outside the period prescribed by law in the interest of justice. Emphatic in the decisions cited by the petitioner are strong considerations of substantial justice. The present case does not warrant such liberality because the decision of the lower court is satisfactorily supported by the records. It is clear from the records that the petitioners cannot inherit the properties in question because of Article 992 of the Civil Code. Being relatives on the legitimate line of Julia Capiao, they cannot inherit from her illegitimate daughter. Their relative Julia Capiao predeceased the daughter, Lutgarda Capiao. As explained by Manresa, whom the private respondent cited:

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Between the natural child and the legitimate relatives of the father or mother who acknowledged it, the Code denies any right of succession. They cannot be called relatives and they have no right to inherit. Of course, there is a blood tie, but the law does not recognize it. In this Article 943 is based upon the reality of the facts and upon the presumptive will of the interested parties; the natural child is disgracefully looked down upon by the legitimate family; the legitimate family is, in turn, hated by the natural child; the latter considers the privileged condition of the former and the resources of which it is thereby deprived; the former, in turn, sees in the natural child nothing but the product of sin, a palpable evidence of a blemish upon the family. Every relations is ordinarily broken in life; the law does no more than recognize this truth, by avoiding further grounds of resentment.

x x x

WHEREFORE, the petition is hereby DISMISSED for lack of merit, with costs against the petitioners.

SO ORDERED.

Teehankee, Melencio-Herrera, Plana, Relova and Alampay, JJ., concur. de la Fuente, J., no part.

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SUNTAY III v COJUANGCO-SUNTAYG.R. No. 183953, 16 June 2010

621 SCRA 142

While the barrier in Art. 992 remains in force, Justice Nachura sets the tone in what could lead to a reconsideration of the ruling in Diaz v Intermediate Appellete Court, supra. Be mindful, however, that the excerpt cited above is at best an obiter since the principal issue raised in this case relates to the preference in the appointment of an administrator.

Nachura, J.:

x x x

One final note. Counsel for petitioner meticulously argues that Article 992 of the Civil Code, the successional bar between the legitimate and illegitimate relatives of the decedent, does not apply in this instance where facts indubitably demonstrate the contrary – Emilio III, an illegitimate grandchild of the decedent, was actually treated by the decedent and her husband as their own son, reared from infancy, educated and trained in their businesses, and eventually legally adopted by decedent’s husband, the original oppositor to respondent’s petition for letters of administration.

We are not unmindful of the critiques of civilists of a conflict and a lacuna in the law concerning the bone of contention that is Article 992 of the Civil Code, beginning with the eminent Justice J.B.L. Reyes:

“In the Spanish civil Code of 1889 the right of representation was admitted only which in the legitimate family; so much so that Article 943 of that Code prescribed that an illegitimate child can not inherit ab intestato from the legitimate children and relatives of his father and mother. The Civil Code of the Philippines apparently adhered to this principle since it reproduced Article 943 of the Spanish Civil Code in its own Article 992, but with fine inconsistency, in subsequent articles (990, 995 and 998) our Code allows the hereditary portion of the illegitimate child to pass to his own descendants, whether legitimate or illegitimate. So that while Art. 992 prevents the illegitimate issue of a legitimate child from representing him in the intestate succession of the grandparent, the illegitimates of an illegitimate child can now do so. This difference being indefensible and unwarranted, in the future revision of the Civil Code we shall have to make a choice and decide either that the illegitimate issue enjoys in all cases the right of representation, in which case Art. 992 must be suppressed; or contrariwise maintain said article and modify Articles 995 and 998. The first solution would be more in accord with an enlightened attitude vis-avis illegitimate children.”

Manresa explains the basis for the rules on intestate succession:

“The law [of intestacy] is founded . . . on the presumed will of the deceased. . . Love, it is said, first descends, then ascends, and finally, spreads sideways. Thus, the law first calls the descendants, then the ascendants, and finally the

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collaterals, always preferring those closer in degree to those of more remote degrees, on the assumption that the deceased world have done so had he manifested his last will . . . Lastly, in default of anyone called to succession or bound to the decedent by ties of blood or affection, it is in accordance with his presumed will that his property be given to charitable or educational institutions, and thus contribute to the welfare of humanity.”

Indeed, the factual antecedents of this case accurately reflect the basis of intestate succession, i.e., love first descends for the decedent, Cristina, did not distinguish between her legitimate and illegitimate grandchildren. Neither did her husband Federico, who in fact legally raised the status of Emilio III from an illegitimate grandchild to that of a legitimate child. The peculiar circumstances of this case, painstakingly pointed out by counsel for petitioner, overthrow the legal presumption in Article 992 of the Civil Code that there exist animosity and antagonism between legitimate and illegitimate descendants of a deceased.

Nonetheless, it must be pointed out that judicial restraint impels us to refrain from making a final decision of heirship and distributing the presumptive shares of the parties in the estates of Cristina and Federico, considering that the question on who will administer the properties of the long deceased couple has yet to be settled.

Carpio (Chairman), Peralta, Abad and Perez, JJ., concur.

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VERDAD v COURT OF APPEALSG.R. No. 109972, 29 April 1996

256 SCRA 593

When a surviving spouse inherits, she acquires all the rights and privileges of ownership pertaining to the property thus acquired. Hence, where a surviving spouse becomes a co-owner of property through succession to her deceased spouse, the former is entitled to the right of redemption in the circumstances described in Article 1620 of the Civil Code. Verdad confirms this fact when a widow was granted the right to redeem a property in which she was a co-owner, that her brothers and sisters-in-law sold to a third party without giving her prior written notice.

Vitug, J.:

The petitioner, Zosima Verdad, is the purchaser of a 248 square meter residential lot x x x. Private respondent, Socorro Cordero vda. de Rosales, seeks to exercise a right of legal redemption over the subject property and traces her title to the late Macaria Atega, her mother-in-law, who died intestate on 08 March 1956.

During her lifetime, Macaria contracted two marriages: the first with Angel Burdeos and the second, following the latter’s death, with Canuto Rosales. At the time of her own death, Macaria was survived by her son Ramon A. Burdeos and her grandchild (by her daughter Felicidad A. Burdeos) Estela Lozada of the first marriage and her children of the second marriage, namely, David Rosales, Justo Rosales, Romulo Rosales and Aurora Rosales.

Socorro Rosales is the widow of David Rosales who himself, some time after Macaria’s death, died intestate without an issue.

In an instrument dated 14 June 1982, the heirs of Ramon Burdeos, namely, his widow Manuela Legaspi Burdeos and children Felicidad and Ramon Jr., sold to petitioner Zosima Verdad (their interest) on the disputed lot supposedly for the price of P55,460.00. In a duly notarized deed of sale, dated 14 November 1982, it would appear, however, that the lot was sold for only P23,000.00. Petitioner explained that the second deed was intended merely to save on tax on capital gains.

Socorro discovered the sale on 30 March 1987 while she was at the City Treasurer’s Office. On 31 March 1987, she sought the intervention of the Lupong Tagapayapa of Barangay 9, Princess Urduja, for the redemption of the property. She tendered the sum of P23,000.00 to Zosima. The latter refused to accept the amount for being much less than the lot’s current value of P80,000.00. No settlement having been reached before the Lupong Tagapayapa, private respondent on 16 October 1987, initiated against petitioner an action for “Legal Redemption with Preliminary Injunction” before the Regional Trial Court of Butuan City.

On 29 June 1990, following the reception of evidence, the trial court handed down its decision holding, in fine, that private respondents’ right to redeem the

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property had already lapsed.An appeal to the Court of Appeals was interposed by private respondents. The

appellate court, in its decision of 22 April 1993, reversed the court a quo; thus

“WHEREFORE, premises considered, the judgment appealed from is hereby REVERSED, and a new one is accordingly entered declaring plaintiff-appellant, Socorro C. Rosales, entitled to redeem the inheritance rights (Art. 1088, NCC) or pro indiviso share (Art. 1620 NCC) of the Heirs of Ramon Burdeos Sr. in Lot 529, Ts-65 of the Butuan Cadastre, within the remaining ELEVEN (11) DAYS from finality hereof, unless written notice of the sale and its terms are received in the interim, under the same terms and conditions appearing under Exhibit “J” and after returning the purchase price of P23,000.00 within the foregoing period. NO COST.

In her recourse to this Court, petitioner assigned the following “errors”: That –

x x x

Still, the thrust of the petition before us is the alleged incapacity of private respondent, Socorro C. Rosales to redeem the property, she being merely the spouse of David Rosales, a son of Macaria, and not being a co-heir herself in the intestate estate of Macaria.

We rule that Socorro can. It is true that Socorro, a daughter-in-law (or, for that matter, a mere relative by affinity) is not an intestate heir of her parents-in-law, however, Socorro’s right to the property is not because she rightfully can claim heirship in Macaria’s estate but that she is a legal heir of her husband, David Rosales, part of whose estate is a share in his mother’s inheritance.

David Rosales incontrovertibly, survived his mother’s death. When Macaria died on 08 March 1956 her estate passed on to her surviving children, among them David Rosales, who thereupon became co-owners of the property. When David Rosales himself later died, his own estate which included the undivided interest over the property inherited from Macaria, passed on to his widow Socorro and her co-heirs pursuant to the law on succession.

ART. 995. In the absence of legitimate descendants and ascendants, and illegitimate children and their descendants, whether legitimate or illegitimate, the surviving spouse shall inherit the entire estate, without prejudice to the rights of brothers and sisters, nephews and nieces, should there be any, under article 1001.

x x x

ART, 1001, Should brothers and sisters or their children survive the widow or widower, the latter shall be entitled to one-half of the inheritance and the brothers and sisters, of their children to the other half.

Socorro and herein private respondents, along with the co-heirs of David

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Rosales, thereupon became co-owners of the property that originally descended from Macaria.

When their interest in the property was sold by the Burdeos heirs to petitioner, a right of redemption arise in favor of private respondents; thus:

ART. 1619. Legal redemption is the right to be subrogated upon the same terms and conditions stipulated in the contract, in the place of one who acquires a thing by purchase or dation in payment, or by any other transaction whereby ownership is transmitted by onerous title.

ART. 1620. A co-owner of a thing may exercise the right of redemption in case the shares of all the other co-owners or of any of them, are sold to a third person. If the price of the alienation is grossly excessive, the redemptioner shall pay only a reasonable one.

We hold that the right of redemption was timely exercised by private respondent. Concededly, no written notice of the sale was given by the Burdeos heirs (vendors) to the co-owners required under Article 1623 of the Civil Code –

x x x

Hence, the thirty-day period of redemption had yet to commence when private respondent Rosales sought to exercise the right of redemption on 31 March 1987, a day after she discovered the sale from the Office of the City Treasurer of Butuan city, or when the case was initiated on 16 October 1987 before the trial court.

x x x

WHEREFORE, the petition is DENIED and the assailed decision of the Court of Appeals is AFFIRMED. Cost against petitioner.

SO ORDERED.

Padilla (Chairman), Bellosillo, Kapunan and Hermosisima, Jr., JJ., concur.

547

SANTILLON v MIRANDANo. L-19281, 30 June 1965

14 SCRA 563

Santillon resolved the dispute regarding the intestate shares of a surviving spouse concurring with one legitimate child. In addition to the arguments clearly stated in the text of the decision, it may be stressed at this point that commentators who insist on a 3/4 - 1/4 sharing in favor of the legitimate child adhere to the theory of preference. In short, there the order of intestate succession listed the legitimate children as having first priority in the intestate estate of the deceased parent, and the spouse as fourth, then the law must be interpreted as having given a preference to the legitimate child or children with respect to the hereditary estate, after the legitime of all other compulsory heirs shall have been paid. Obviously, Santillon rejected the theory of preference and adopted the theory of concurrence. Accordingly, heirs who do not mutually exclude each other shall ratably share the inheritance. Since preference is not inferred from the order of intestate succession, then the free disposal (after payment of legitime to the compulsory heirs) must be distributed in a manner that would result in the least disproportion between or among the respective shares of the concurring intestate heirs.

Two other theories in relation to the disposition of the free disposal might be mentioned. Under the theory of equality, the free disposal is divided equally among the concurring intestate heirs, regardless of the order of intestate succession. Another theory advanced by other commentators is that the free disposal must be proportionately distributed among the concurring intestate heirs based on their respective legitime.

Bengzon, C.J.:

On November 21, 1953, Santillon died without testament in Tayug, Pangasinan, his residence, leaving one son, Claro, and his wife, Perfecta Miranda. During his marriage, Pedro acquired several parcels of land located in that province.

About four years after his death, Claro Santillon filed a petition for letters of administration. Opposition to said petition was entered by the widow Perfecta Miranda and the spouses Benito U. Miranda and Rosario Corrales on the following grounds: (a) that the properties enumerated in the petitioner were all conjugal, except three parcels which Perfecta Miranda claimed to be her exclusive properties; (b) that Perfecta Miranda by virtue of two documents had conveyed 3/4 of her undivided share in most of the properties enumerated in the petition to said spouses Benito and Rosario; (c) that administration of the estate was not necessary, there being a case for partition pending; and (d) that if administration was necessary at all, the oppositor Perfecta Miranda and not the petitioner was better qualified for the post. It appears that subsequently, oppositor Perfecta Miranda was appointed administratrix of the estate.

On March 22, 1961, the court appointed commissioners to draft within sixty days, a project of partition and distribution of all the properties of the deceased Pedro

548

Santillon.

On April 25, 1961, Claro filed a "Motion to Declare Share of Heirs" and to resolve the conflicting claims of the parties with respect to their respective rights in the estate. Invoking Article 892 of the new Civil Code, he insisted that after deducting 1/2 from the conjugal properties as the conjugal share of Perfecta, the remaining 1/2 must be divided as follows: 1/4 for her and 3/4 for him. Oppositor Perfecta, on the other hand, claimed that besides her conjugal half, she was entitled under Art. 996 of the new Civil Code to another 1/2 of the remaining half. In other words, Claro claimed 3/4 of Pedro's inheritance, while Perfecta claimed 1/2.

After due notice and hearing, the court, on June 28, 1961 issued an order, the dispositive portion of which reads:

IN VIEW OF THE FOREGOING CONSIDERATIONS, it is hereby ruled and ordered that in the intestate succession of the deceased Pedro Santillon, the surviving spouse Perfecta Miranda shall inherit one-half (1/2) share and the remaining one-half (1/2) share for the only son, Atty. Claro Santillon. This is after deducting the share of the widow as co-owner of the conjugal properties. x x x.

From this order, petitioner Claro Santillon has appealed to this Court. Two questions of law are involved. x x x And the second, raised in appellant's lone assignment of error, is: How shall the estate of a person who dies intestate be divided when the only survivors are the spouse and one legitimate child?

x x x

The Second Issue: - petitioner rests his claim to 3/4 of his father's estate on Art. 892 of the new Civil Code which provides that:

If only the legitimate child or descendant of the deceased survives, the widow or widower shall be entitled to one-fourth of the hereditary estate. x x x.

As she gets one-fourth, therefore, I get 3/4, says Claro. Perfecta, on the other hand, cites Art. 996 which provides:

If a widow or widower and legitimate children or descendants are left, the surviving spouse has in the succession the same share as that of each of the children.

Replying to Perfecta's claim, Claro says that the article is unjust and inequitable to the extent that it grants the widow the same share as that of the children in intestate succession, whereas in testate, she is given 1/4 and the only child 1/2.

Oppositor Perfecta Miranda, on the other hand, contends that Art. 996 should control, regardless of its alleged inequity, being as it is, a provision on intestate succession involving a surviving spouse and a legitimate child, inasmuch as in

549

statutory construction, the plural word "children" includes the singular "child."

Art. 892 of the new Civil Code falls under that chapter on Testamentary Succession; whereas Art. 996 comes under the chapter on Legal or Intestate Succession. Such being the case, it is obvious that Claro cannot rely on Art. 892 to support his claim to 3/4 of his father's estate. Art. 892 merely fixes the legitime of the surviving spouse and Art. 888 thereof, the legitime of children in testate succession. While it may indicate the intent of law with respect to the ideal shares that a child and a spouse should get when they concur with each other, it does not fix the amount of shares that such child and spouse are entitled to when intestacy occurs. Because if the latter happens, the pertinent provision on intestate succession shall apply, i.e., Art. 996.

Some commentators of our new Civil Code seem to support Claro's intention; at least, his objection to fifty-fifty sharing. But others confirm that half and half idea of the Pangasinan court.

This, is, remember, intestate proceedings. In the new Civil Code's chapter on legal or intestate succession, the only article applicable is Art. 996. Our colleague, Mr. Justice J. B. L. Reyes, professor of Civil Law, is quoted as having expressed the opinion that under this article, when the widow survives with only one legitimate child, they share the estate in equal parts. Senator Tolentino in his commentaries writes as follows:

One Child Surviving - If there is only one legitimate child surviving with the spouse, since they share equally, one-half of the estate goes to the child and the other half goes to the surviving spouse. Although the law refers to "children or descendants," the rule in statutory construction that the plural can include the singular is applicable in this case. (Tolentino, Civil Code of the Philippines, Vol. III, p. 436.)

The theory of those holding otherwise seems to be premised on these propositions: (a) Art. 996 speaks of "children," therefore, it does not apply when there is only one "child;" consequently Art. 892 (and not Art. 888) should be applied, thru a process of judicial construction and analogy; (b) Art. 996 is unjust or unfair because, whereas in testate succession, the widow is assigned one-fourth only (Art. 892), she would get one-half in intestate.

A. Children. - It is a maxim of statutory construction that words in plural include the singular. So Art. 996 could or should be read (and so applied): "If the widow or widower and a legitimate child are left, the surviving spouse has the same share as that of the child." Indeed, if we refuse to apply the article to this case on the ground that "child" is not included in "children," the consequences would be tremendous, because "children" will not include "child" in the following articles:

Art. 887 - The following are compulsory heirs: (1) legitimate children and descendants x x x.

550

Art. 888 - The legitime of legitimate children and descendants consists of one-half of the hereditary estate x x x.

Art. 896 - Illegitimate children who may survive x x x are entitled to one-fourth of the hereditary estate x x x. [See also Art. 901.]

In fact, those who say "children" in Art. 996 does not include "child" seem to be inconsistent when they argue from the premise that "in testate succession the only legitimate child gets one-half and the widow, one-fourth." The inconsistency is clear, because the only legitimate child gets one-half under Art. 888, which speaks of "children," not "child." So if "children" in Art. 888 includes "child," the same meaning should be given to Art. 996.

B. Unfairness of Art. 996 - Such position, more clearly states, is this: In testate succession, where there is only one child of the marriage, the child gets one-half, and the widow or widower one-fourth. But in intestate, if Art. 996 is applied now, the child gets one-half, and the widow or widower one-half. Unfair or inequitable, they insist.

On this point, it is not correct to assume that in testate succession the widow or widower "gets only one-fourth." She or he may get one-half - if the testator so wishes. So, the law virtually leaves it to each of the spouses to decide (by testament, whether his or her only child shall get more than his or her survivor).

Our conclusion (equal shares) seems a logical inference from the circumstances that whereas Article 834 of the Spanish Civil Code, from which Art. 996 was taken, contained two paragraphs governing two contingencies, the first, where the widow or widower survives with legitimate children (general rule), and the second, where the widow or widower survives with only one child (exception). Art. 996 omitted to provide for the second situation, thereby indicating the legislator's desire to promulgate just one general rule applicable to both situations.

The resultant division may be unfair as some writers explain - and this we are not called upon to discuss - but it is the clear mandate of the statute, which we are bound to enforce.

The appealed decision is affirmed. No costs in this instance.

Concepcion, Reyes, J.B.L., Paredes, Dizon, Regala, Makalintal, Bengzon, J.P., and Zaldivar, JJ., concur. Bautista Angelo, J., no part. Barrera, J., is on leave.

551

PARISH PRIEST OF ROMAN CATHOLIC CHURCH OFVICTORIA, TARLAC v RIGOR

No. l-22036, 30 April 197989 SCRA 496

Capacity to succeed is determined from the moment of the death of the testator or the decedent. To be capacitated, an heir, legatee or devisee must be living at the time succession opens, except in case of representation whenever appropriate. A testamentary disposition giving a devise to the nearest male relative who would pursue an ecclesiastical career is meant to refer to such relatives living (or at least conceived) at the time of the testator's death. A contrary interpretation may be upheld only if there is a clear intention to the contrary. Nevertheless, the enforceability of such a testamentary disposition is necessarily limited to twenty years from the time succession opens, in order that the disposition be consistent with the rule prohibiting perpetuities.

Aquino, J.:

The parish priest of Victoria, who claimed to be a trustee of the said lands, appealed to this Court from the decision of the Court of Appeals affirming the order of the probate court declaring that the said devise was inoperative (Rigor v Parish Priest of the Roman Catholic Church of Victoria, Tarlac, CA-G.R. No. 23419-R, August 1, 1963).

The record discloses that Father Rigor, the parish priest of Pulilan, Bulacan, died on August 9, 1935, leaving a will executed on October 29, 1933 which was probated by the Court of First Instance of Tarlac in its order of December 5, 1935. Named as devisees in the will were the testator's nearest relatives x x x.

In addition, the will contained the following controversial bequest (paragraphing supplied to facilitate comprehension of the testamentary provisions):

Doy y dejo como legado cuatro (4) parcelas de terreno palayeros, situados en el municipio de Guimba de la provincia de Nueva Ecija, cuyo num. de Certificado de Transferencia de Titulo son: Titulo Num. 6530, mide 16,249 m. cuadrados de superficie; Titulo Num. 6548, mide 242,998 m. cuadrados de superficie; Titulo Num. 6525, mide 62,665 m. cuadrados de superficie; y Titulo Num. 6521, mide 119,251 m. cuadrados de superficie; a cualquier parente mio varon mas cercano que estudie la carrera eclesiastica hasta ordenarse de Presbiterado o sea Sacerdote; las condiciones de estrate legado son:

x x x

To implement the following bequest, the administratrix in 1940 submitted a project of partition containing the following item:

x x x

552

It may be noted that the administratrix and Judge Cruz did not bother to analyze the meaning and implications of Father Rigor's bequest, to his nearest male relative who would study for the priesthood. Inasmuch as no nephew of the testator claimed the devise and as the administratrix and the legal heirs believed that the parish priest of Victoria has no right to administer the ricelands, the same were not delivered to that ecclesiastic. The testate proceeding remained pending.

About thirteen years after the approval of the project of partition, or in February 19, 1954, the parish priest of Victoria filed in the pending testate proceeding a petition praying for the appointment of a new administrator (succeeding the deceased administratrix, Florencia Rigor), who should deliver to the church the said ricelands, and further praying that the possessors thereof be ordered to render an accounting of the fruits. The probate court granted the petition. A new administrator was appointed. On January 31, 1957, the parish priest filed another petition for the delivery of the ricelands to the church as trustee.

The intestate heirs of Father Rigor countered with a petition dated March 25, 1957, praying that the bequest be declared inoperative and that they be adjudged as the persons entitled to the said ricelands since, as admitted by the parish priest of Victoria, "no nearest male relative of" the testator "has ever studied for the priesthood." That petition was opposed by the parish priest of Victoria.

Finding that petition to be meritorious, the lower court through Judge Bernabe de Aquino, declared the bequest inoperative and adjudicated the ricelands to the testator's legal heirs in his order of June 28, 1957. The parish priest filed two motions for reconsideration.

Judge de Aquino granted the second motion for reconsideration in his order of December 10, 1957 on the ground that the testator had a grandnephew named Edgardo G. Cunanan in the San Jose Seminary of the Jesuit Fathers in Quezon City. The administrator was directed to deliver the ricelands to the parish priest of Victoria as trustee.

The legal heirs appealed to the Court of Appeals. It reversed that order. It held that Father Rigor had created a testamentary trust for his nearest male relative who would take the holy orders but that such trust could exist only for twenty years because to enforce it beyond that period would violate 'the rule against perpetuities." It ruled that since no legatee claimed the ricelands within twenty years after the testator's death, the same should pass to his legal heirs, citing articles 888 and 912(2) of the old Civil Code and article 870 of the new Civil Code.

The parish priest in this appeal contends that the Court of Appeals erred in not finding that the testator created a public charitable trust and in not liberally construing the testamentary provisions so as to render the trust operative and to prevent intestacy.

x x x

553

The will of the testator is the first and principal law in the matter of testaments. When his intention is clearly and precisely expressed, any interpretation must be in accord with the plain and literal meaning of his words, except when it may certainly appear that his intention was different from that literally expressed (In re Estate of Calderon, 26 Phil 333).

x x x

One canon in the interpretation of the testamentary provisions is that "the testator's intention is to be ascertained from the words of the will, taking into consideration the circumstances under which it was made," but excluding the testator's oral declaration as to his intention (Art. 789, Civil Code of the Philippines).

To ascertain Father Rigor's intention, it may be useful to make the following restatement of the provisions of his will:

1. That he bequeathed the ricelands to anyone of his nearest male relatives who would pursue an ecclesiastical career until his ordination as a priest;

2. That the devisee could not sell the ricelands;

3. That the devisee at the inception of his studies in sacred theology could enjoy and administer the ricelands, and once ordained as a priest, he could continue enjoying and administering the same up to the time of his death but the devisee would cease to enjoy and administer the ricelands if he discontinued his studies for the priesthood;

4. That if the devisee became a priest, he would be obligated to celebrate every year twenty masses with prayers for the repose of the souls of Father Rigor and his parents;

5. That if the devisee is excommunicated, he would be divested of the legacy and the administration of the ricelands would pass to the incumbent parish priest of Victoria and his successors;

6. That during the interval of time that there is no qualified devisee, as contemplated above, the administration of the ricelands would be under the responsibility of the incumbent parish priest of Victoria and his successors; and

7. That the parish priest-administrator of the ricelands would accumulate annually the products thereof, obtaining or getting from the annual produce five percent thereof for his administration and the fees corresponding to twenty masses with prayers that the parish priest would celebrate for each year, depositing the balance of the income of

554

the devise in the bank in the name of his bequest.

From the foregoing testamentary provisions, it may be deduced that the testator intended to devise the ricelands to his nearest male relative who would become a priest, x x x.

On the other hand, it is clear that the parish priest of Victoria would administer the ricelands only in two situations: one, during the interval of time that no nearest male relative of the testator was studying for the priesthood, and two, in case of the testator's nephew became a priest and he was excommunicated.

What is not clear is the duration of "el intervalo de tiempo que no haya legatario acondicionado," or how long after the testator's death would it be determined that he had a nephew who would pursue an ecclesiastical vocation. It is that patent ambiguity that has brought about the controversy between the parish priest of Victoria and the testator's legal heirs.

Interwoven with that equivocal provision is the time when the nearest male relative who would study for the priesthood should be determined. Did the testator contemplate only his nearest male relative at the time of his death? Or did he have in mind any of his nearest male relatives at anytime after his death?

We hold that the said bequest refers to the testator's nearest male relative living at the time of his death and not to any indefinite time thereafter. "In order to be capacitated to inherit, the heir, devisee or legatee must be living at the moment the succession opens, except in case of representation, when it is proper" (Art. 1025, Civil Code).

The said testamentary provisions should be sensibly or reasonably construed. To construe them as referring to the testator's nearest male relative at anytime after his death would render the provisions difficult to apply and create uncertainty as to the disposition of his estate. That could not have been his intention.

In 1935, when the testator died, his nearest legal heirs were his three sisters or second-degree relatives, Mrs. Escobar, Mrs. Manaloto and Mrs. Quiambao. Obviously, when the testator specified his nearest male relative, he must have had in mind his nephew or a son of his sister, who would be his third-degree relative of possibly a grandnephew. But since he could not prognosticate the exact date of his death or state with certitude what category of nearest male relative would be living at the time of his death, he could not specify that his nearest male relative would be his nephew of grandnephews (the son of his nephew or niece) and so he had to use the term "nearest male relative."

x x x

x x x Our opinion that the said bequest refers to the testator's nephew who was living at the time of his death, when his succession was opened and the

555

successional rights to his estate became vested, rests on a judicious and unbiased reading of the terms of the will.

Had the testator intended that the "cualquier pariente mio varon mas cercano que estudie la carrera eclesiastica" would include indefinitely anyone of his nearest male relatives born after his death, he could have so specified in his will. He must have known that such a broad provision would suspend for an unlimited period of time the efficaciousness of his bequest.

What then did the testator mean by "el intervalo de tiempo que no haya legatario acondicionado?" The reasonable view is that he was referring to a situation whereby his nephew living at the time of his death, who would like to become a priest, was still in grade school or in high school or was not yet in the seminary. In that case, the parish priest of Victoria would administer the ricelands before the nephew entered the seminary. But the moment the testator's nephew entered the seminary, then he would be entitled to enjoy and administer the ricelands and receive the fruits thereof. In that event, the trusteeship would be terminated.

Following that interpretation of the will, the inquiry would be whether at the time of Father Rigor died in 1935 he had a nephew who was studying for the priesthood or who had manifested his desire to follow the ecclesiastical career. That query is categorically answered in paragraph 4 of the appellant priest's petitions of February 19, 1954 and January 31, 1957. He unequivocally alleged therein that "no nearest male relative of the late (Father) Pascual Rigor has ever studied for the priesthood."

Inasmuch as the testator was not survived by any nephew who became a priest, the unavoidable conclusion is that the bequest in question was ineffectual or inoperative. Therefore, the administration of the ricelands by the parish priest of Victoria, as envisaged in the will, was likewise inoperative.

x x x

It should be understood that the parish priest of Victoria could become a trustee only when the testator's nephew living at the time of his death, who desired to become a priest, had not yet entered the seminary, or having been ordained a priest, he was excommunicated. Those two contingencies did not arise and could not have arisen, in this case because no nephew of the testator manifested any intention to enter the seminary or ever become a priest.

The Court of Appeals correctly ruled that this case is covered by article 888 of the old Civil Code, nor article 956, which provides that if "the bequest for any reason should be inoperative, it shall be merged into the estate, except in cases of substitution and those in which the right of accretion exists" x x x.

This case is also covered by article 912(2) of the old Civil Code, nor article 960(2), which provides that legal succession takes place when the will "does not dispose of all that belongs to the testator." There being no substitution nor accretion

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as to the said ricelands, the same should be distributed among the testator's legal heirs. The effect is as if the testator had made no disposition as to the said ricelands.

x x xWe find no merit in the appeal. The Appellate Court's decision is affirmed.

Costs against the petitioner.

Fernando (Actg. C.J.), Barredo (Actg. Chairman), Antonio, Concepcion, Jr., and Santos, JJ., concur. Abad Santos, J., did not take part.

557

CID v BURNAMANNo. L-24424, 31 July 1968

24 SCRA 435

The capacity of an heir to inherit is to be determined at the time succession opens. Cid refers to the provision of the Civil Code of 1889 which disqualifies an illegitimate child who has not been acknowledged by his or her putative parents from inheriting. The status of an acknowledged natural child must be established as of the death of the deceased parent in order to entitled such illegitimate child to certain successional rights. Without such acknowledgement as of such time, no successional rights shall accrue to said child.

Please note, however, that the requisite acknowledgment has been repealed by the Family Code. This case, therefore, and the pertinent provisions of law referred to herein, shall not longer apply to deaths occurring after the effectivity of the Family Code.

Reyes, J.B.L., J.:

x x x

The following facts were found by the Court of Appeals:

The aforesaid lot was originally decreed in undivided halves, one in favor of Gregoria Bonoan (1/2) and the other half in favor of the five petitioners Julians (Dionisia, Amador, Escolastica, Domingo and Teodoro), as owners in equal shares of said realty.

Gregoria had in her possession Original Certificate of Title No. 7130, covering the land in question. When she died on 19 November 1938, the Certificate passed to the hands of her son, Cenon Bonoan @ Cenon Hernando. The land tax assessment was also in the name of Gregoria, but when she died, it was placed in the names of Cenon Hernando (Cenon Bonoan) and Engracia Hernando, her children. Engracia was the mother of the petitioners Julians.

On 4 May 1950, Cenon executed a sworn affidavit adjudicating unto himself the entire half interest of his mother, Gregoria Bonoan, in Cadastral Lot No. 9008 as "her only legal heir the affiant named herein who is her only child," and the sworn statement was entered, recorded on the same day, and annotated on the back of the certificate of title, subject to a 2-year reservation in favor of possible claimants, in conformity with Rule 74 of the Rules of Court. x x x.

Six (6) years later, on 7 April 1956, Cenon ceded by way of absolute sale - "all his rights, participation and interest over his entire share of one fourth unto Nancy Warwick Burnaman" for the price of P1,500.00, but the deed was not recorded.

Eight months afterwards, on 5 December 1956, Cenon Bonoan, or Hernando,

558

subscribed another deed of sale wherein, for a price of P2,500.00, he conveyed unto the same vendee, Nancy W. Burnaman, not one-fourth but an undivided half (1/2) interest of Lot 9008, stating in the deed of sale that he was "the absolute owner and actual possessor of the said undivided half interest in the above described parcel of land." This deed of sale was recorded on 17 December 1956. A new Certificate of Title No. T-4215 was issued, with Nancy as owner of an undivided half and with the Julians as holders of the other half. Original Certificate of Title No. 7139 was canceled. x x x.

Petitioners Julians filed, on 18 July 1957, a complaint against Nancy Burnaman, her husband, Elis J. Burnaman, and Cenon Hernando, seeking the avoidance of the sale by the latter insofar as concerned a one-fourth (1/4) undivided interest in the lot, on the basis that the original half owner, Gregoria Bonoan, died leaving two children, Cenon and Engracia, the latter being the mother of plaintiffs Julians; that upon Engracia's death, her children, the Julians, became entitled to half of Gregoria's half interest (i.e., 1/4 of the whole) in addition to their recorded half share; x x x. They prayed to be declared owners of an undivided three-fourths (3/4) of Lot No. 9008, and to be awarded damages and other relief.

The defendant Burnaman's denied the allegations of the complaint; pleaded good faith in their purchase from Cenon Hernando and counterclaimed for damages; while Cenon answered admitting that Engracia B. Hernando was his sister, but denied that she had any right or participation in the land in question; and pleaded that the lot was purchased with his earnings as a soldier in the Philippine Scouts, and that his mother, Gregoria, and his sister, Engracia, had recognized his rights to the undivided half of Lot No. 9008 of the Laoag Cadastre.

After trial, the court of first instance found for the plaintiffs Julians; declared them owners of the undivided 3/4 of the lot; annulled pro tanto the adjudication in favor of Cenon, and his sale in favor of the Burnaman spouses; ordered the cancellation of Transfer Certificate of title No. 4215; and ordered defendants to pay damages at P5.00 per month from 5 December 1956.

Upon appeal by the defendants, the Court of Appeals found, in its turn, that Engracia (mother of the Julians) was an illegitimate child of Gregoria Bonoan, and was never recognized, voluntarily or compulsory, by her mother, that her certificate of baptism on 16 April 1879, even if considered a public document at the time it was issued, was incompetent evidence of her acknowledgment; that not having acknowledged, expressly or tacitly, she could not inherit from Gregoria, unlike Cenon who was acknowledged, according to Dionisia Julian Cid's testimony; that Cenon's admission that Engracia was his sister did not make the former an acknowledged natural child of his mother. x x x. Hence this appeal.

The first attack leveled at the appealed decision by petitioners-appellants, is that, their action being 'an ordinary civil action on the ground of fraud," it was improper for the appellate court to "make a declaration of heirship which is within the exclusive competence and jurisdiction of the court in special proceedings," citing Litam v

559

Espiritu, 100 Phil 365.

Appellants suffer from a misconception of the true purpose of the inquiry by the Court of Appeals into the filiation and status of their mother, Engracia Bonoan (or Hernando). Plaintiffs, as claimants of an additional undivided fourth (1/4) of Lot 9008, are duty bound to rely on the strength of their title thereto, and not on the weakness of the defendant's claim. (Civil Code, Article 434; Misamis Lumber Co. v Director of Lands, 57 Phil 881) Since the plaintiffs Julians based their title upon hereditary succession from the original recorded owner, Gregoria Bonoan, through their mother, Engracia Bonoan, it was perfectly proper for the appellate court to inquire whether Engracia was, or could be, an heir of Gregoria. To be such heir, it is not enough that Engracia was Gregoria's daughter; for not every child is entitled to inherit. To succeed, a child must be, under the rules of the Civil Code of 1889 (in force when Gregoria died in 1938), either a child legitimate, legitimated, or adopted, or else an acknowledged natural child, for illegitimates not natural are disqualified to inherit (Civil Code 1889, Articles 807, 939). As appellants' own Exhibits "G" and "H" showed that both Cenon and Engracia were children of Gregoria but with father unknown, their legitimacy or legitimation was out of the question. Hence, it became imperative to ascertain whether Engracia was properly acknowledged, assuming that her parents could marry each other when she was conceived, because if Engracia was not recognized, she could not inherit from her mother, Gregoria, and consequently, could not transmit to her own issue any successional rights to Gregoria's estate.

The court of first instance held that Engracia was deemed acknowledged by a public instrument, because her baptismal certificate in the parish records was a public document before General Order No. 68 and Act 190; but the Court of Appeals correctly held that this certificate did not constitute a sufficient act of acknowledgment, since the latter must be executed by the child's father or mother, and the parish priest can not acknowledge in their stead (Canales v Arrogante, 91 Phil 6). This action of the appellate court was not a declaration of heirship but a testing of the chain of title of herein petitioners-appellants, plaintiffs in first instance. There being no other evidence of her acknowledgment, Engracia and her children were properly refused a share in her mother's property.

It is true that Cenon Hernando (or Bonoan) admitted in his answer that Engracia was his sister, but this certainly is not an admission that she was also acknowledged by their common mother. For acknowledgment is not a consequence of filiation.

x x x

WHEREFORE, the decision of the Court of Appeals is affirmed. Costs against appellants Julians.

Concepcion, C.J., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur.

560

DIMAYUGA v COURT OF APPEALSL-48433, 30 April 1984

129 SCRA 111

Article 1043 provides that no person may accept or repudiate an inheritance unless his is certain of the death of the person from whom he is to inherit, and of his right to the inheritance. A compulsory heir who is deprived of a portion of his legitime through a donation inter vivos executed by his father, or through a partition inter vivos made by his father, is not deemed to have repudiated the inheritance to the extent of the shortfall of his legitime, even if in the meantime he had executed an affidavit confirming and accepting his share of the distributed property.

Aquino, J.:

x x x

The spouses Genaro Dimayuga and Segunda Gayapanao, who were married in 1915, acquired a Torrens title for that homestead in 1928. Segunda died intestate in 1940, survived by her son Manuel, and her husband, Genaro.

During their marriage, Genaro had a mistress named Emerenciana Panganiban by whom be begot five children, named Filomeno, Pacita, Adelaida, Remedios and Socorro. A sixth child, Nelia Dimayuga, was born in 1944 after Segunda's death. Emerenciana cultivated a homestead adjoining the thirteen-hectare homestead in question. So it was not surprising that she became the paramour of Genaro.

Genaro, 56, married Emerenciana, 37, on February 26, 1947. That marriage legitimated Nelia, who had been a duly acknowledged natural child, but it did not improve the status of her brother and four sisters who were adulterous or spurious children.

On September 16, 1948, or about month before Genaro's death a "partition of real property" was executed in English. It was duly notarized. It was signed by Genaro, Manuel, Filomeno and Pacita, and thumb marked by Emerenciana, in representation of her minor children, Adelaida, Remedios, Socorro and Nelia, though Emerenciana had not been appointed judicial guardian of their property,

The document states the ages of the children as Pacita, 22, Filomeno, 19, Adelaida, 17, Remedios, 15, Socorro, 13 and Nelia, 4. But their birth certificates now show that they were all minors. Filomeno and Pacita were twins born on December 25, 1929; Remedios and Adelaida were also twins born on January 2, 1932; Socorro was born in 1938 and Nelia, as already noted, in 1944.

In that partition, which the petitioners also regard as a donation, Genaro treated the homestead as his sole property and not conjugal, which it actually was (Pisalbon v Bejec, 74 Phil 288; Tabunan v Margimen, 101 Phil 288). Manuel was

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given as share five and one-half hectares of the homestead (southern portion adjoining Emerenciana's separate homestead). The six illegitimate children were given seven and seven-tenths hectares (northern portion also adjoining Emerenciana's separate homestead). The partition was not registered.

The partition as amended in 1951 by means of an affidavit in Tagalog signed by the same parties except Genaro who died intestate on October 8, 1948. An additional one hectare was given to Manuel making his total share six and five-tenths hectares. The 1948 partition prejudiced him because "ang ginawang paghahati ni Genaro Dimayuga ay hindi tumpak sapagkat naapi si Manuel Dimayuga."

Nineteen years later, or on May 28, 1970, Manuel having been advised that the entire homestead was inherited by him from his parents and freed from his father's moral ascendancy, executed an affidavit of adjudication which he registered. He obtained a Torrens title for the thirteen-hectare homestead.

About two months later, the six illegitimate children filed a complaint for the annulment of Manuel's title and for the division of the homestead equally among Genaro's seven children, including Manuel. The parties submitted a partial stipulation of facts. The plaintiffs offered the partition and the amendatory affidavit as their documentary evidence. On the other hand, Manuel's documentary evidence consisted of his title, the marriage contract of his parents and of Genaro and Emerenciana and the birth certificates of the illegitimate children.

There was no oral evidence. The parties submitted 'the case on pure question of law." The trial court annulled Manuel's title, decreed that about one-half of the homestead should be divided equally among the six illegitimate children and ordered Manuel to pay them P2,500 as moral and exemplary damages and attorney's fees.

Manuel appealed to the Court of Appeals which adjudicated to him three-fourths of the homestead and the other one-fourth to Nelia. The six illegitimate children appealed to this Court. x x x.

The petitioners or the six illegitimate children admit that the Appellate Court correctly applied the law by adjudicating three-fourth of the homestead to Manuel and one-fourth to Nelia. However, they contend that their possession of about one-half of the homestead since the 1948 partition made them owners by prescription and that Manuel is estopped to deny that fact because he adjudicated the homestead to himself only twenty-two years later.

That contention is devoid of merit. It may be morally plausible but it is not legally defensible. No portion of the homestead, a registered land, may be acquired by prescription. “No title to registered land in derogation to that of the registered owner shall be acquired by prescription or adverse possession.”

x x x

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Article 1056 of the old Civil Code proves that “if the testator should make a partition of his property b an act inter vivos, or by will, such partition shall stand insofar as it does not prejudice the legitime of forced heirs.” Article 1056 was construed to mean that a person who makes an inter vivos partition must first execute a will. If the will is void, the partition is void (Legasto v Verzosa, 54 Phil 766; Fajardo v Fajardo, 54 Phil 842; Romero v Villamor, 102 Phl 641). With more reason the partition be void is there was no will.

The 1948 partition was not in conformity with law. It assumed that Genaro was the owner of the entire homestead. One-half of the homestead, subject to the husband’s usufructuary legitime, was inherited in 1940 by Manuel upon the death of his mother who was married to Genaro for twenty-five years. Genaro could dispose by an act inter vivos only one-half of the homestead. In that one-half portion, Manuel and Nelia, as Genaro’s legal and forced heirs, had a two-thirds legitime.

In “donating” the said one-half portion to his six illegitimate children, Genaro deprived Manuel of his legitime in his estate, or in effect, made him renounce his future inheritance. The 1951 affidavit cannot be construed as a repudiation of his inheritance in his father’s estate because the document does not have that tenor. For this reason, Manuel is not estopped to ignore that partition. The rule in Alforque v Velos, 65 Phil 272, cited by the petitioners, does not apply to Manuel. The facts in the Alforque care are radically different form the facts of the instant homestead case.

The five illegitimate children (the sixth child Nelia was legitimated) have no rights whatsoever to the said homestead. As already said, they were adulterous or spurious children.

x x x

As such, they are not entitled to successional rights but only to support (Art. 139, old Civil Code; Reyes v Zuzuarregui, 102 Phil 346); Olivete v Mata, 100 Phil 563; Javelosa v Monteclaro, 74 Phil 393; Lagrimas v Lagrimas, 95 Phil 113; Ramirez v Gmus, 42 Phil 855).

WHEREFORE, the trial court’s judgment is reversed and set aside. Three-fourths of the said homestead is hereby adjudicated to Manuel Dimayuga and one-fourth to Nelia Dimayuga. The register of deeds should cancel Manuel’s title and issue the corresponding titles in accordance with this decision. No costs.

SO ORDERED.

Makasiar (Chairman), Concepcion, Jr., Guerrero, Abad Santos, and Escolin, JJ/. Concur. De Castro, J., no part.

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GUY v COURT OF APPEALSG. R. No. 163707, 15 September 2006

502 SCRA 151

Guy holds that a waiver of hereditary share, in order to be effective, must make an explicit reference to the hereditary rights that are being waived. A waiver must pertain to a known or established right. Where there is a waiver of the hereditary rights of illegitimate children, it is essential that their hereditary rights must be established prior to the waiver. Hence, if proof of illegitimate filiation has not been commenced, a waiver of hereditary rights would be premature.

The Court made reference to the rule on repudiation of an inheritance. Specifically the Court cited Article 1044 which requires the judicial approval of a repudiation of hereditary rights of a minor or an incapacitated person. It is not altogether clear what Justice Santiago referred to Article 1044. The fact that the mother acknowledged receipt of P300,000.00 on behalf of her minor children and an educational plan for their education (which is the basis of the waiver of claim) is indicative that there was indeed an acceptance of the inheritance. It would seem that Justice Santiago viewed the payment made to the mother, on behalf of the minor children, was the monetary consideration for the waiver of hereditary rights. The question, however, is whether a “waiver” of hereditary rights is functionally equivalent to “repudiation.”

Ynares-Santiago, J.:

x x x

On June 13, 1997, private respondent-minors Karen Oanes Wei and Kamille Oanes Wei, represented by their mother Remedios Oanes (Remedios), filed a petition for letters of administration before the Regional Trial court of Makati City Branch 138. The case was docketed as Sp. Proc. Case No. 4549 and entitled Intestate Estate of Sima Wei (a.k.a. Rufino Guy Susim).

Private respondents alleged that they are the duly acknowledged illegitimate children of Sima Wei, who dies intestate in Makati City on October 29, 1992, leaving an estate valued at P10,000,000.00 consisting of real and personal properties. His known heirs are his surviving spouse Shirley Guy and children Emy, Jeanne, Cristina, George and Michael, all surnamed Guy. Private respondents prayed for the appointment of a regular administrator for the orderly settlement of Sima Wei’s estate. They likewise prayed that, in the meantime, petitioner Michael C. Guy, son of the decedent, be appointed as Special Administrator of the estate. x x x.

In his Comment/Opposition, petitioner prayed for the dismissal of the petition. He asserted that his deceased father left no debts and that his estate can be settled without securing letters of administration pursuant to Section 1, Rule 74 of the Rules of Court. He further alleged that private respondents should have established their status as illegitimate children during the lifetime of Sima Wei pursuant to Article 175 of the

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Family Code.x x x

In a Manifestation/Motion as Supplement to the Joint Motion to Dismiss, petitioner and his co-heirs alleged that private respondents’ claim had been paid, waived, abandoned or otherwise extinguished by reason of Remedios’ June 7, 1993 Release and Waiver of Claim stating that in exchange for the financial and educational assistance received from petitioner, Remedios and her minor children discharge the estate of Sima Wei from any and all liabilities.

The Regional Trial court denied the Joint Motion to Dismiss as well as the Supplemental Motion to Dismiss. It ruled that while the Release and Waiver of Claim was signed by Remedios, it had not been established that she was the duly constituted guardian of her minor daughters. Thus, no renunciation of rights occurred. x x x.

Petitioner moved for reconsideration but was denied. He filed a petition for certiorari before the Court of Appeals which affirmed the orders of the Regional Trial Court in its assailed Decision dated January 22, 2004 x x x.

The Court of Appeals denied petitioner’s motion for reconsideration, hence, this petition.

x x x

The petition lacks merit.

x x x

As regards Remedios’ Release and Waiver of claim, the same does not bar private respondents from claiming successional rights. To be valid and effective, a waiver must be couched in clear and unequivocal terms which leave no doubt as to the intention of a party to give up a right or benefit which legally pertains to him. A waiver may not be attributed to a person when its terms do not explicitly and clearly evince an intent to abandon a right.

In this case, we find that there was no waiver of hereditary rights. The Release and Waiver of Claim does not state with clarity the purpose of its execution. It merely states that Remedios received P300,000.00 and an educational plan for her minor daughters “by way of financial assistance and in full settlement of any and all claims of whatsoever nature and kind x x x against the estate of the late Rufino Guy Susim.” Considering that the document did not specifically mention private respondents’ hereditary share in the estate of Sima Wei, it cannot be construed as a waiver of successional rights.

Moreover, even assuming that Remedios truly waived the hereditary rights of private respondents, such waiver will not bar the latter’s claim. Under Article 1044 of

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the Civil Code, provides:

Art. 1044. Any person having the free disposal of his property may accept or repudiate an inheritance.

Any inheritance left to minors or incapacitated persons may be accepted by their parents or guardians. Parents or guardians may repudiate the inheritance left to their wards only by judicial authorization.

The right to accept an inheritance left to the poor shall belong to the persons designated by the testator to determine the beneficiaries and distribute the property, or in their default, to those mentioned in Article 1030.

Parents and guardians may not therefore repudiate the inheritance of their wards without judicial approval. This is because repudiation amounts to an alienation of property which must pass the court’s scrutiny in order to protect the interest of the ward. Not having been judicially authorized, the Release and Waiver of claim in the instant case is void and will not bar private respondents from asserting their rights as heirs of the deceased.

Further, it must be emphasized that waiver is the intentional relinquishment of a known right. Where one lacks knowledge of a right, there is no basis upon which waiver of it can rest. Ignorance of a material fact negates waiver, and waiver cannot be established by a consent given under a mistake or misapprehension of fact.

In the present case, private respondents could not have possibly waived their successional rights because they are yet to prove their status as acknowledged illegitimate children of the deceased. Petitioner himself has consistently denied that private respondents are his co-heirs. It would thus be inconsistent to rule that they waived their hereditary rights when petitioner claims that they do not have such right. Hence petitioner’s invocation of waiver on the part of private respondents must fail.

x x x

WHEREFORE, the instant petition is DENIED. The Decision dated January 22, 2004 of the Court of Appeals in CA-G.R. SP. No. 70742 affirming the denial of petitioner’s motion to dismiss; and its Resolution dated May 25, 2004 denying petitioner’s motion for reconsideration are AFFIRMED. Let the records be REMANDED to the Regional Trial Court of Makati City, Branch 138 for further proceedings.

Panganiban (C.J., Chairperson), Austria-Martinez, Callejo Sr., and Chico-Nazario, JJ., concur.

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LEVISTE V COURT OF APPEALSG. R. No. L-29184, 30 January 1989

160 SCRA 581

Article 1052 in part provides that if an heir repudiates the inheritance to the prejudice of his creditors, the latter may petition the court to authorize them to accept it in the name of the heir. This right pertains to creditors, and excludes an attorney who may have a claim against his client-heir based on a contingent fee arrangement.

Griño-Aquino, J.:

The issue in this case is whether or not an attorney who was engaged on a contingent fee basis may, in order to collect his fees, prosecute an appeal despite his client’s refusal to appeal the decision of the trial court.

On September 7, 1963, the petitioner, a practicing attorney, entered into a written agreement with the private respondent Rosa del Rosario, to appear as her counsel in a petition for probate of the holographic will of the late Maxima C. Reselva. Under the will, a piece of real property at Sales Street, Quiapo, Manila was bequeathed to del Rosario. It was agreed that petitioner’s contingent fee would be thirty-five percent (35%) of the property that Rosa may receive upon the probate of the will.

In accordance with their agreement, Leviste performed the following services as del Rosario’s counsel:

X x x

On August 20, 1956, Leviste received a letter from Ms. Del Rosario, informing him that she was terminating his services as her counsel due to “conflicting interest.” x x x.

On September 20, 1965, petitioner filed a “Motion to Intervene to Protect his Rights to Fees for Professional Services.”

In an order dated November 12, 1965, the trial court denied his motion on the ground that he had “not filed a claim for attorney’s fees or recorded his attorney’s lien.”

On November 23, 1965, petitioner filed a “Formal Statement for Claims for Attorney’s Fees and Recording of Attorney’s Lien.” Which was noted in the court’s order of December 20, 1965.

Although the order denying his motion to intervene had become final, petitioner continued to receive copies of the court’s orders, as well as the pleadings of the other parties in the case. He also continued to file pleadings. The case was submitted for decision without the respondent’s evidence.

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On November 23, 1966, del Rosario and Rita Banu, the special administratrix-legatee, filed a “Motion to Withdraw Petition for Probate” alleging that del Rosario waiver her rights to the devise in her favor and agreed that the de Guzman brothers and sisters who opposed her petition for probate, shall inherit all the properties left by the decedent.

In an order of April 13, 1967, the trial court denied the motion to withdraw the petition for being contrary to public policy.

Nonetheless, on August 28, 1967, the court disallowed the will, holding that the legal requirements for its validity were not satisfied as only two witnesses testified that the will and the testatrix’s signature were in the handwriting of Maxima Reselva.

The petitioner filed an appeal bond, notice of appeal, and record of appeal. The private respondent filed a motion to dismiss the appeal on the ground that petitioner was not a party in interest.

The petitioner opposed the motion to dismiss his appeal, claiming that he had a direct and material interest in the decision sought to be reviewed, He also asked that he be substituted as party-petitioner, in lieu of his former client, Ms. Del Rosario.

On March 26, 1968, the trial judge dismissed the appeal an denied petitioner’s motion for substitution.

The petitioner filed in the Court of Appeals a petition for mandamus (CA-G.R. No. 41248) praying that the trial court be ordered to give due course to his appeal and to grant his motion for substitution.

On May 28, 1968, the Court of Appeals dismissed the petition for being insufficient in form and substance as the petitioner did not appear to be the proper party to appeal the decision in Special Proceeding No. 58325.

Upon the denial of his motion for reconsideration, petitioner appealed by certiorari to this Court, assigning the following errors against the Court of Appeals’ resolution:

1. The Court of Appeals erred in finding that the petitioner appears not to be the proper party to appeal the decision in Sp. Proc. No. 58325 of the Court of First Instance of Manila.

x x x

Under the first assignment of error, petitioner argues that by virtue of his contract of services with del Rosario, he is a creditor of the latter, and that under Article 1052 of the Civil Code which provides:

Art. 1052. If the heir repudiates the inheritance to the prejudice of his own creditors, the latter may petition the court to authorize them to accept it in the

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name of the heir.

The acceptance shall benefit the creditors only to an extent sufficient to cover the amount of their credits. The excess, should there be any, shall in no case pertain to the renouncer, but shall be adjudicated to the person to whom, in accordance with the rules established in this Code, it may belong.

he has a right to accept for his client del Rosario to the extent of 35% thereof the devise in her favor (which she in effect repudiated) to protect his contingent attorney’s fees.

The argument is devoid if merit. Article 1052 of the Civil Code does not apply to this case. That legal provision protects the creditor of a repudiating heir. Petitioner is not a creditor of Rosa del Rosario. The payment of his fees is contingent and dependent upon the successful probate of the holographic will. Since the petition for probate was dismissed by the lower court, the contingency did not occur. Attorney Leviste is not entitled to his fee.

Furthermore, Article 1052 presupposes that the obligor is an heir. Rosa del Rosario is not a legal heir of the late Maxima C. Reselva. Upon the dismissal of her petition for probate of the decedent’s will, she lost her right to inherit any part of the latter’s estate. There is nothing for the petitioner to accept in her name.

This Court has ruled in the case of Recto v Harden, 100 Phil 1427, that “the contract (for contingent attorney’s fees) neither gives, nor purports to give, to the appellee (lawyer) any right whatsoever, personal or real, in and to her (Mrs. Harden’s) aforesaid share in the conjugal partnership. The amount thereof is simply a basis for the computation of said fees.”

x x x

Petitioner was not a party to the probate proceedings in the lower court. He had no direct interest in the probate of the will. His only interest in the estate is an indirect interest as former counsel of a prospective heir. In Paras v Narciso, 35 Phil 244, We had occasion to rule that one who is only indirectly interested in a will may not intervene in its probate. Thus:

x x x the reason for the rule excluding from contesting the will is not that thereby the court may be prevented from learning facts which would justify or necessitate a denial of probate, but rather that the courts and the litigants should not be molested by the intervention in the proceedings of persons with no interest in the estate which would entitle them to be heard with relation thereto. (Paras v Narciso, 35 Phil 244, 246.)

Similarly, in Morente v Formalino, 40 O.G. 21st Supp. 1, We held:

We are of the opinion that the lower court did not err in holding that notice of an attorney’s lien did not entitle the attorney-appellant to subrogate himself in lieu of his client. It only gives him the right to collect a certain amount

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for his services in case his client is awarded a certain sum by the court.

WHEREFORE, the petition for certiorari is denied for lack of merit. Costs against the petitioner.

Narvasa, Cruz, Gancayco and Medialdea, JJ., concur.

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DE ROMA V COURT OF APPEALSNo. L-46903, 23 July 1987

152 SCRA 205

Collation seeks to preserve the legitime of the compulsory heirs, and at the same time, to equalize the shares of the heirs in the hereditary estate. As a general rule, all gratuitous conveyances made by the decedent during his lifetime are collationable. By way of an exception, the donor may provide that a particular donation shall not be collationable. In the exceptional case, it is necessary that the prohibition to collate is expressed. Otherwise, no inference can be deduced that the intention of the donor was to excuse collation.

Cruz, J.:

Candelaria de Roma had two legally adopted daughters, Buhay de Roma and Rosalinda de Roma. She died intestate on April 30, 1971, and administration proceedings were instituted in the Court of First Instance of Laguna by the private respondents as guardian of Rosalinda. Buhay was appointed administratrix and in due time filed an inventory of the estate. This was opposed by Rosalinda on the ground that certain properties earlier donated by Candelaria to Buhay, and the fruits thereof, had not been included.

The properties in question consisted of seven parcels of coconut land worth P10,297.50. There is no dispute regarding their valuation; what the parties cannot agree upon is whether these lands are subject to collation. The private respondent vigorously argues that it is, conformably to Article 1061 of the Civil Code. Buhay, for her part, citing Article 1062, claims she has no obligation to collate because the decedent prohibited such collation and the donation was not inofficious.

Art. 1061. Every compulsory heir, who succeeds with other compulsory heirs, must bring into the mass of the estate any property or right which he may have received fro the decedent during the lifetime of the latter, by way of donation, or any other gratuitous title, in order that it may be computed in the determination of the legitime of each heir, and in the account of the partition.

Art. 1062. Collation shall not take place among compulsory heirs if the donor should have so expressly provided, or if the donee should repudiate the inheritance, unless the donation should be reduced as inofficious.

The issue was resolved in favor of the petitioner by the trail court, x x x which held that the decedent, when she made the donation in favor of Buhay, expressly prohibited collation. Moreover, the donation which did not impair the legitime of the two, was imputed to the free portion of Candelaria’s estate.

On appeal, the order of the trial court was reversed, the respondent court x x x holding that the deed of donation contained no expressed prohibition to collate as an exception to Article 1062. Accordingly, it order collation and equally divided the net estate of the decedent, including the fruits of the donated property, between Buhay

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and Rosalinda.

The pertinent portion s of the deed of donation are as follows:

IKALAWA. Na alang-alang sa aking pagmamahal, pagtingin at pagsisilbi sa akin ang aking anak na si BUHAY DE ROMA, kasal kay Arabella Castañeda, may kasapatang gulang, mamamayang Pilipino at naninirahan at may pahatirang-sulat din dito sa Lungsod ng San Pablo, sa pamamagitan ng kasulatang ito ay kusang-loob kong ibininibay, ipinagkakaloob at inililipat sa nabaggit na BUHAY DE ROMA, sa kanyang mga kahalili at tagapagmana, sa pamamagitan ng pagbibigay na di na mababawing muli, ang lahat ng mga lagay ng lupa na sinasabi sa itaas, sa ilalim ng kasunduan na ngayon pa ay siya na ang magmamay-aring tunay ng mga lupang ito at kanya nang maaaring ilipat ang mga hoja declaratoria ng mga lupang ito sa kanyang pangalan, datapwa’t samantalang ako ay nabubuhay ay ako rin ang makikinabang sa mga mapuputi at mamomosesio sa mga sasabing lupa.

IKATLO. Na pinagtibay ko na ako ay marami pang ibang mga pag-aari na sapat pang aking ikabuhay at sa pagbibigay kong ito ay hindi masisira ang legitima ng mga tao na dapat magmana sa akin, sapagkat ang mga lupang sinasabi sa itaas ay bahagi ng aking kabuhayan na ako ay may layang ipamigay kahit na kaninong tao na kung tawagin ay Libre Disposicion.

We agree with the respondent court that there is noting in the above provisions expressly prohibiting the collation of the donated properties. As the said court correctly observed, the phrase “sa pamamagitan ng pagbibigay na di na mababawing muli” merely described the donation as “irrevocable” and should not be construed as an express prohibition against collation. The fact that a donation is irrevocable does not necessarily exempt the subject thereof from the collation required under Article 1061.

We surmise from the sue of such terms as “legitime” and “free portion” in the deed of donation that it was prepared by a lawyer, and we may also presume that he understood the legal consequences of the donation being made. It is reasonable to suppose, given the precise language of the document, that he would have included therein an express prohibition to collate if that had been the donor’s intention.

Anything less than such express prohibition will not suffice under the clear language of Article 1962. The suggestion that there was an implied prohibition because the properties donated were imputable to the free portion of the decedent’s estate merits little consideration. Imputation is not the question here, nor is it claimed that the disputed donation is officious. The sole issue is whether or not there was an express prohibition to collate, and we see none.

The intention to exempt from collation should be expressed plainly and unequivocally as an exception to the general rule announced in Article 1062. Absent such clear indication of that intention, we apply not the exception but the rule, which is categorical enough.

x x x

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WHEREFORE, the appealed decision is AFFIRMED in toto, with costs against the petitioner. It is so ordered.

Teehankee, (C.J.), Narvasa, Paras, and Gancayco, JJ., concur.

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VIZCONDE v COURT OF APPEALSG.R. No. 118449, 1 February 1998

286 SCRA 217

This is a very important case as it discussed at length the concept of collation. Because of the complicity of the matter, I reserved my observations by including footnotes to the more significant statements in the body of the decision. Based on my personal observations regarding this decision, I would say that I can only agree with it to the extent that the Court ruled that the Parañaque property is not collationable.

Francisco, J.:

Petitioner Lauro G. Vizconde and his wife Estrellita Nicolas-Vizconde had two children, viz., Carmela and Jennifer. Petitioner’s wife, Estrellita, is one of the five siblings of spouses Rafael Nicolas and Salud Gonzales-Nicolas. The other children of Rafael and Salud are Antonio Nicolas; Ramon Nicolas; Teresita Nicolas de Leon, and Ricardo Nicolas, an incompetent. Antonio predeceased his parents and is now survived by his widow Zenaida and their four children.

On May 22, 1979, Estrellita purchased from Rafael a parcel of land with an area of 10,110 sq. m. located at Valenzuela, Bulacan (hereafter Valenzuela property) covered by TCT No. (T-36734) 13206 for One Hundred Thirty Five Thousand Pesos (P135,000.00), evidenced by a “Lubusang Bilihan ng Bahagi ng Lupa na Nasasakupan ng Titulo TCT No. T-36734.” In view thereof, TCT No. V-554 covering the Valenzuela property was issued to Estrellita. On March 30, 1990, Estrellita sold the Valenzuela property to Amelia Lim and Maria Natividad Balictar Chiu for Three Million, Four Hundred Five Thousand, Six Hundred Twelve Pesos (P3,405,612.00). In June of the same year, Estrellita bought from Premier Homes, Inc., a parcel of land with improvements situated at Vinzon St., BF Homes, Parañaque (hereafter Parañaque property) using a portion of the proceeds of sale of the Valenzuela property. The remaining amount of the proceeds was used in buying a car while the balance was deposited in a bank.

The following year, an unfortunate event in petitioner’s life occurred. Estrellita and her two daughters, Carmela and Jennifer, were killed on June 30, 1991, an incident popularly known as the “Vizconde Massacre.” The findings of the investigation conducted by the NBI revealed that Estrellita died ahead of her daughters. Accordingly, Carmela, Jennifer and herein petitioner succeeded Estrellita and, with the subsequent death of Carmela and Jennifer, petitioner was left as the sole heir of his daughters. Nevertheless, petitioner entered into an “Extra-Judicial Settlement of the Estate of Deceased Estrellita Nicolas-Vizconde With Waiver of Shares,” with Rafael and Salud, Estrellita’s parents.1 The extrajudicial settlement provided for the division of

1 NOTE: The extra-judicial partition between Lauro and her parents-in-law is irregular and clearly disregarded the sequence of death. Upon the death of Estrellita, her compulsory heirs were Carmela and Jennifer, legitimate daughters, and Lauro, surviving spouse. Therefore the parents of Estrellita, Rafael and Salud, were excluded by Carmela and Jennifer. Accordingly, Rafael and Salud were not legally entitled to inherit from Estrellita.

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the properties of Estrellita and her two daughters between petitioner and spouses Rafael and Salud. The properties include bank deposits, a car and the Parañaque property. The total value of the deposits deducting the funeral and other related expenses in the burial of Estrellita, Carmela and Jennifer, amounts to Three Million Pesos (P3,000,000.00). The settlement gave fifty percent (50%) of the total amount of bank deposits if Estrellita and her daughters to Rafael, except Savings Account No. 104-111211-0 under the name of Jennifer which involves a token amount. The other fifty percent (50%) was allotted to petitioner. The Parañaque property and the car were also given to petitioner with Rafael and Salud waiving all their “claims, rights, ownership and participation as heirs,” in the said properties.

On November 18, 1992, Rafael died. To settle Rafael’s estate, Teresita instituted an intestate proceedings x x x, listing as heirs Salud, Ramon, Ricardo and the wife (Zenaida) and children of Antonio. Teresita prayed to be appointed Special Administratrix of Rafael’s estate. Additionally, she sought to be appointed as guardian ad litem of Salud, now senile, and Ricardo, her incompetent brother. Herein respondent Ramon filed an opposition dated March 24, 1993, praying to be appointed instead as Salud and Ricardo’s guardian. Barely three weeks passed, Ramon filed another opposition alleging, among others, that Estrellita was given the Valenzuela property by Rafael which she sold for not less than Six Million Pesos (P6,000,000.00) before her gruesome murder. Ramon pleaded for the court’s intervention “to determine the legality and validity of the inter vivos distribution made by deceased Rafael to his children,” Estrellita included. On May 12, 1993, Ramon filed his own petition x x x “In the Matter of the Guardianship of Salud G. Nicolas and Ricardo G. Nicolas” and averred that their legitime should come from the collation of all properties distributed to his children by Rafael during his lifetime. Ramon stated that herein petitioner is one of Rafael’s children “by right of representation as the widower of deceased legitimate daughter of Estrellita.”2

In a consolidated Order dated November 9, 1993, the RTC appointed Ramon as the guardian of Salud and Ricardo, while Teresita in turn, was appointed Special Administratrix of Rafael’s estate. The court’s Order did not include petitioner in the slate of Rafael’s heirs. Neither was the Parañaque property listed in its list of properties to be included in the estate. Subsequently, the RTC in an Order dated January 5, 1994, removed Ramon as Salud and Ricardo’s guardian for selling his ward’s property without the court’s knowledge and permission.

Sometime on January 13, 1994, the RTC released an Order giving petitioner “ten (10) days x x x within which to file any appropriate petition or motion related to the pending petition insofar as the case is concerned and to file any opposition to any pending motion that has been filed by both the counsels for Ramon Nicolas and Teresita de Leon.” In response, petitioner filed a manifestation, dated January 19, 19194, stressing that he was neither a compulsory heir nor an intestate heir of Rafael

2 NOTE: This is a ridiculous statement. It is well settled in law that children-in-law are not heirs to the estate of their parents-in-law, whether in their own right or by right of representation.

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and he has no interest to participate in the proceedings. The RTC noted said manifestation in its Order dated February 2, 1994. Despite the Manifestation, Ramon, through a motion dated February 14, 1994, moved to include petitioner in the intestate estate proceeding and asked that the Parañaque property, as well as the car and the balance of the proceeds of the sale of the Valenzuela property, be collated. Acting on Ramon’s motion, the trial court on March 10, 1994 granted the same in an Order which pertinently reads as follows:

x x x

Petitioner filed its motion for reconsideration of the aforesaid Order which Ramon opposed. On August 12, 1994, the RTC rendered an Order denying petitioner’s motion for reconsideration. It provides:

x x x

“The center point of oppositor-applicant’s argument is that spouses Vizconde were then financially capable of having purchased or acquired for a valuable consideration the property at Valenzuela from the deceased Rafael Nicolas. Admittedly, the spouses Vizconde were then living with the deceased Rafael Nicolas in the latter’s ancestral home. In fact, as the argument further goes, said spouses were dependent for support on the deceased Rafael Nicolas. And. Lauro Vizconde left for the United States in, de-facto separation, from the family for sometime and returned to the Philippines only after the occurrence of violent deaths of Estrellita and her two daughters.

To dispute the contention that the spouses Vizconde were financially incapable to buy the property from the late Rafael Nicolas, Lauro Vizconde claims that they have been engaged in business ventures such as taxi business, canteen concessions and garment manufacturing. However, no competent evidence has been submitted to indubitably support the business undertakings adverted to.

In fine, there is no sufficient evidence to show that the acquisition of the property from Rafael Nicolas was for a valuable consideration.

Accordingly, the transfer of the property at Valenzuela in favor of Estrellita by her father was gratuitous and the subject property in Parañaque which was purchased out of the proceeds of the said transfer of the property by the deceased Rafael Nicolas in favor of Estrellita, is subject to collation.

WHEREFORE, the motion for reconsideration is hereby DENIED.”

Petitioner filed a petition for certiorari and prohibition with respondent Court of Appeals. In its decision of December 14, 1994, respondent Court of Appeals denied the petition stressing that the RTC correctly adjudicated the question on the title of the Valenzuela property as “the jurisdiction of the probate court extends to matters incidental and collateral to the exercise of its recognized powers in handling the settlement of the estate of the deceased x x x.” Dissatisfied, petitioner filed the

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instant petition for review on certiorari. Finding prima facie merit, the Court on December 4, 1995 gave due course to the petition and required the parties to submit their respective memoranda.

The core issue hinges on the validity of the probate court’s Order, which respondent Court of Appeals sustained, nullifying the transfer of the Valenzuela property from Rafael to Estrellita and declaring the Parañaque property as subject to collation.

The appeal is well taken.

Basic principles of collation need to be emphasized at the outset. Article 1061 of the Civil Code speaks of collation. It states:

x x x

Collation is the act by virtue of which descendants and other forced heirs who intervene in the division of the inheritance of an ascendant bring into the common mass, the property which they receive from him, so that the division may be made according to law and the will of the testator.3 Collation is only required of compulsory heirs succeeding with other compulsory heirs and involves property or rights received by donation or gratuitous title during the lifetime of the decedent.4 The purpose is to attain equality among the compulsory heirs in so far possible for it is presumed that the intention of the testator or predecessor in interest in making a donation or gratuitous transfer to a forced heir is to give him something in advance on account of his share in the estate, and that the predecessor’s will is to treat all his heirs equally, in the absence of any expression to the contrary. Collation does not impose any lien on the property or the subject matter of collationable donation. What is brought to collation is not the property donated itself, but rather the value of such property at the time it was donated, the rationale being that the donation is a real alienation which conveys ownership upon its acceptance, hence any increase in value or any deterioration or loss thereof is for the account of the heir or donee.

3 NOTE: This statement is not accurate. It is not the property that is brought into the common mass, but the only value thereof. Otherwise an erroneous inference may arise: i.e., that collation refers to the property itself and thus requires the restoration of the property to the mass of the estate of the deceased person. Collation relates solely to the value of the property donated and solely for accounting purposes – it does not require the physical return of the property donated; for, if the donation was valid, title to the property donated passed to the ownership and dominion of the donee.

4 NOTE: In respect of compulsory succession, the objective of collation is to equalize the shares of compulsory heirs so that those who receive an advance of their hereditary shares are made to account for such advances when the estate of the donor is divided among them at the time succession opens. In respect of voluntary heirs inheriting with compulsory heirs, the objective of collation is to ensure that what the donor gave gratuitously in his lifetime does not exceed the free portion of the estate. Therefore, the duty to collate is not limited to compulsory heirs. Voluntary heirs are also charged with this obligation. Otherwise, the legitime could be impaired through the simple expedient of making donations to strangers.

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The attendant facts herein do not make a case of collation. We find that the probate court, as well as respondent Court of Appeals, committed reversible errors.

First: The probate court erred in ordering the inclusion of petitioner in the intestate estate proceeding. Petitioner, a son-in-law of Rafael, is not one of Rafael’s compulsory heirs. Article 887 of the Civil Code is clear on this point.

x x x

With respect to Rafael’s estate, therefore, petitioner who was not even shown to be a creditor of Rafael is considered a third party or a stranger. As such, petitioner may not be dragged into the intestate estate proceeding. Neither may he be permitted or allowed to intervene as he has no personality in the said proceeding which petitioner correctly argued in his manifestation.

Second: As a rule, the probate court may pass upon and determine the title or ownership of a property which may or may not be included in the estate proceedings. Such determination is provisional in character and is subject to final decision in a separate action to resolve title. In the case at bench, however, we note that the probate court went beyond the scope of its jurisdiction when it proceeded to determine the validity of the sale of the Valenzuela property between Rafael and Estrellita and ruled that the transfer of the subject property between the concerned parties was gratuitous. The interpretation of the deed and the true intent of the contracting parties, as well as the presence or absence of consideration, are matters outside the probate court’s jurisdiction. These issues should be ventilated in an appropriate action. We reiterate:

x x x

Third: The order of the probate court subjecting the Parañaque property to collation is premature. Records indicate that the intestate estate proceeding is still in its initiatory stage. We find nothing herein to indicate that the legitime of any of Rafael’s heirs has been impaired to warrant collation.5 We thus advert to our ruling in

5 NOTE: It is not accurate to state that collation shall take place only after a determination that the legitime of any compulsory heir has been impaired. The fact is that collation is resorted to precisely to determine whether or not the legitime was impaired by a prior donation inter vivos, either because donations were made to compulsory heirs or donations were made to strangers. After collation, if it is determined that the collationable donation to strangers is within the “free disposal,” the same shall be honored and the value of such donation shall be disregarded for the purpose of distributing the estate to the rightful beneficiaries. In the case of Ubarde v Jurado cited in the decision, the refusal of the Supreme Court to compel the collation of all prior donations to compulsory heirs was premised on the fact that upon the death of the decedent, there were substantial properties yet to be divided by the compulsory heirs, and that there was no showing that the prior donations made to some of the compulsory heirs indeed impaired the legitime of the other compulsory heirs. Clearly, the rationale of Ubarde rests on the lack of proof that the prior donations impaired the legitime. Nonetheless, I subscribe to the idea that collation should have been ordered by the court since it is only after the collation of the value of prior donations can it be ascertained whether or not the legitime of the compulsory heirs was impaired. In any event, the collation

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Udarbe v Jurado, 59 Phil 11, 13-14, to wit:

“We are of the opinion that this contention is untenable. In accordance with the provisions of article 1035 of the Civil Code, it was the duty of the plaintiff to allege and prove that the donations received by the defendants were inofficious in whole or in part and prejudiced the legitime or hereditary portion to which they are entitled. In the absence of that effect, the collation should is untenable for lack of ground or basis therefore.”

Fourth: Even on the assumption that collation is appropriate in this case, the probate court nonetheless made a reversible error in ordering collation of the Parañaque property. We note that what was transferred to Estrelitta, by way of a deed of sale, is the Valenzuela property. The Parañaque property which Estrellita acquired by using the proceeds of the sale of the Valenzuela property does not become collationable simply by reason thereof. Indeed, collation of the Parañaque property has no statutory basis. The order of the probate court presupposes that the Parañaque property was gratuitously conveyed by Rafael to Estrellita. Records indicate, however, that the Parañaque property was conveyed for and in consideration of P900,000.00 by Premier Home, Inc. to Estrellita. Rafael, the decedent, has no participation therein, and petitioner who inherited and is now the present owner of the Parañaque property is not one of Rafael’s heirs.6 Thus, the probate court’s order of collation against petitioner is unwarranted for the obligation to collate is lodged with

that is relevant in Ubarde is not that collation referred to in Article 1061, but rather the collation referred to in Article 1070 because the potentially collationable donations were indeed donations propter nuptias. In Article 1070, wedding gifts are collationable only to the extent that they (collectively) exceed 10% of the free disposal.

6 NOTE: Collation does not refer to the property that was the subject matter of a donation inter vivos made by the decedent in his lifetime. Collation refers only to the value thereof. Hence it is correctly stated that the Parañaque property is not a collationable property since, it did not come from the decedent Rafael. One thing should be very clear: while there is such a thing as a collationable donation, there is no such thing as a collationable property. This is the inevitable conclusion from the fact that collation is a mere accounting process that requires the inclusion of the value of all prior donations in calculating the hereditary estate. However, I take exception to the resulting inference that the value of the Valenzuela property is not covered by collation. If it is established that Rafael transferred the same to Estrellita without any valuable consideration, despite the execution of the purported deed of sale, then the conveyance to Estrellita should be considered as a collationable donation. However, I take note that the Supreme Court implicitly rejected the allegation that the transfer to Estrellita was not supported by valuable consideration, primarily due to the insufficiency of evidence that Estrellita did not have the sufficient financial resources to purchase the same property from her father. In Sanchez v Court of Appeals (279 SCRA 687), the Court rejected the allegation of fraud in the execution of a questioned deed of sale as being bereft of substance, it being alleged that the sale is simulated and therefore the property conveyed thereunder should be treated as acquired by donation and therefore collationable. In rejecting this contention, the Court cited the following; and (i) the presumption of validity of a duly notarized deed of sale which can only be overcome by competent evidence; (ii) that fraud is never presumed and must be proved. The presumption of validity cannot be overcome by mere conjectures or speculations.

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Estrellita, the heir, and not to herein petitioner who does not have any interest in Rafael’s estate.7 As it stands, collation of the Parañaque property is improper, for, to repeat, collation covers only properties gratuitously given by the decedent during his lifetime to his compulsory heirs which fact does not obtain anent the transfer of the Parañaque property. Moreover, Rafael, in a public instrument, voluntarily and willfully waived any claims, rights, ownership and participation as heir in the Parañaque property.8

Fifth: Finally, it is futile for the probate court to ascertain whether or not the Valenzuela property may be brought to collation. Estrellita, it should be stressed, died ahead of Rafael. In fact, it was Rafael who inherited from Estrellita an amount more than the value of the Valenzuela property.9 Hence, even assuming that the Valenzuela property may be collated, collation may not be allowed as the value of the Valenzuela property has long been returned to the estate of Rafael.10 Therefore, any

7 NOTE: I take exception to the statement that the Lauro is exempt from the obligation to collate because such obligation is directed at Estrellita. In Article 776 of the Civil Code, “the inheritance includes properties, rights and obligations of a person which are not extinguished by his death.” Accordingly, when Lauro inherited from Estrellita upon the latter’s death, Lauro likewise inherited Estrellita’s obligation to collate the value of the collationable donation. Estrellita predeceased her father Rafael and therefore did not inherit from Rafael. But, for the purpose of liquidating Rafael’s estate, Estrellita must account for the value of the Valenzuela property which had been transferred to her as a stranger. That is, if the Valenzuela property was in fact conveyed to Estrellita by Rafael without valuable consideration. In which case, the heir of Estrellita (Lauro in this case) would be charged to collate the value thereof for the purpose of ensuring that the value of the Valenzuela property did not exceed the value of the “free disposal” and therefore did not impair the legitime of Rafael’s surviving spouse and 4 legitimate children. For indeed, a voluntary heir (Estrellita, in this case) who received a donation from a deceased person (Rafael) is duty-bound to collate the value of the donation for the purpose of ensuring that such value did not exceed the “free disposal.”

8 NOTE: I wonder whether or not the waiver of all “claims, rights, ownership and participation” that was signed by Rafael and Salud in favor of Lauro as part of the extra judicial settlement of the estate of Estrellita operates to bar the collation that is now demanded from Lauro. Bear in mind that even if Rafael were to waive collation, a compulsory heir may yet demand that all gratuitous conveyances made by the decedent in his lifetime be collated, if there is a showing that these conveyances in fact impaired the legitime. In short, the waiver of collation cannot bar an honest claim of a compulsory heir that the prior gratuitous conveyances made by the decedent impaired his legitime. Collation is for the benefit of the compulsory heirs – not the testator or the decedent. Therefore, only a compulsory heir can waive the benefit of collation. Indeed, if a donor should stipulate in the deed of donation that the same is non-collationable, the effect of such waiver is simply to charge the value of the donation to the free disposal.

9 NOTE: This resulted from the extra judicial partition entered into between Lauro on the one hand, and Rafael and Salud on the other. Notice that this partition was totally inappropriate because Rafael and Salud are not compulsory heirs of Estrellita because Estrellita was survived by Carmela and Jennifer, her legitimate daughters.

10 NOTE: I do not agree with this statement. When Rafael and Salud received some cash from the estate of Estrellita, it was not a return of the value of the Valenzuela property, which in the first place, was not even contemplated. They received the money under a erroneous notion that they were compulsory heirs of Estrellita. Lauro’s obligation to collate (which

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determination by the probate court on the matter serves no valid and binding purpose.

WHEREFORE, the decision of the Court of Appeals appealed from is hereby REVERSED AND SET ASIDE.

Narvasa (C.J., Chairman), Romero, Kapunan and Purisima, JJ., concur.

incidentally should have been required in this case) was not obliterated by the fact that Estrellita predeceased her parents and that her parents inherited from her.

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ARELLANO V PASCUALG.R. No. 189776, 15 December 2010

638 SCRA 826

Collation is relevant only when there are surviving compulsory heirs who are entitled to the legitime. Thus, if the decedent is surviving only by his siblings, the donations made by the decedent in his lifetime are not collationable. No portion of the estate is reserved to compulsory heirs by way of legitime.

The purpose of collation is two-fold: the first is to ensure equality among the compulsory heirs as far as practicable; and second, to protect the legitime by ensuring that donations made by the decedent during his lifetime do not exceed the free disposal.

Carpio-Morales, J.:

Angel N. Pascual, Jr. died intestate on January 2, 1999 leaving as heirs his suiblings, namely: petitioner Amelia P. Arellano who is represented by her daughters Agnes P. Arellano (Agnes) and Nona P. Arellano, and respondents Francisco Pascual and Miguel N. Pascual.

In a petition for “Judicial Settlement of intestate Estate and Issuance of Letters of Administration,” x x x filed by respondents x x x before the Regional Trial Court of Makati, respondents alleged, inter alia, that a parcel of land (the donated property) located in Teresa Village, Makati, which was, by Deed of Donation, transferred by the decedent to petitioner the validity of which donation respondents assailed, “may be considered as an advance legitime of petitioner.

x x x

Provisinally passing, however, upon the question of title to the donated property only for the purpose of determining whether it formed part of the decedent’s estate, the probate court found the Deed of Donation valid in the light of the presumption of validity of notarized documents. It thus went on to hold that it is subject to collation following Article 1061 of the New Civil Code which reads:

x x x

The probate court thereafter partitioned the properties of the intestate estate. Thus, it disposed:

x x x

Before the Court of Appeals, petitioner faulted the trial court in holding that:

1. The property donated to appellant Amelia Pascual Arellano is part of the estate of Angel Pascual, Jr.

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2. The property donated to Appellant is subject to collation under Article 1061 of the New Civil Code.

3. Appelles who are merely collateral relatives of deceased Angel N. Pascual, Jr. as his compulsory heirs entitled to legitimes.

4. In not partitioning the estate of Angel N. Pascual, Jr. equally among his legal or intestate heirs.

By decision of July 20, 1009, the Court of Appeals found petitioner’s appeal partly meritorious. It sustained the probate court’s ruling that the property donated to petitioner is subject to collation in this wise:

‘Bearing in mind that in intestate succession, what governs is the rule on equality of division. We hold that the property subject of donation inter vivos in favor of Amelia is subject to collation. Amelia cannot be considered a creditor of the decedent and we believe that under the circumstances, the value of such immovable though not strictly in the concept of advance legitime, should be deducted from her share in the net hereditary estate. The trial court therefore committed no reversible error when it imcluded the said property as forming part of the estate of Angel N. Pascual.

The appellate court, however, held that, contrary to the ruling of the probate court, herein petitioner was able to submit prima facie evidence of shares of stock owned by the decedent which have not been included in the inventory submitted by the administrator.

Thus, the appellate court disposed, quoted verbatim:

“WHEREFORE, premises considered, the present appeal is hereby PARTYLY GRANTED. The Decision dated January 29, 2008 of the Regional Trial Court of Makati City, Branch 135 in Special Proceeding Case No. M-5034 is hereby REVERSED and SET ASIDE insofar as the order of includion of properties of the Intestate Estate of Angel N. Pascual, jr., as well as the partition and distribution of the same to the co-heirs are concerned.

The case is hereby REMANDED to the said court for further proceedings in accordance with the disquisitions herein.”

Petitioner’s partial Motion for Reconsideration having been denited by the appellate court by Resolution of octobet 7, 2009, the present petition for review on certiorari was filed, ascribing as errors of the appellate court its ruling

1. that the property donated by Angel N. pascual, jr. to petitioner Amelia Pascual Arrellano is part of his estate at the time of his death;

2. that the property donated to petitioner is subject to collation under Article 1061 of the New Civil Code;

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3. that respondents are compulsory heirs of their deceased brother Angel N. Pascual, jr. and are entitled to legitimes;

4. in not partitioning the estate of Angel N. pascual, jr. equally among petitioner and respondents, as his legal or intestate heirs.

Petitioner thus raised the issues of whether the property donated to petitioner is subject to collation; and whether the property of the estate shold have been ordered equally distributed among the parties.

On the first issue:

The term collation has two distinct concepts: first, it is a mere mathematical operation by the addition of the value of donations made by the testator to the value of the hereditary estate; and second, it is the return to the hereditary estate of property disposed of by lucrative title by the testator during his lifetime.

The purpose of collation are to secure equality aming the compulsory heirs in so far as is possible, and to determine the free portion, after finding the legitime, so that inofficious donations may be reduced.

Collation takes place when there are compulsory heirs, one of its purposes being to determine the legitime and the free portion. If there is no compulsory heir, there is no legitime to be safeguarded.

The records do not show that the decedent left any primary, secondary or concurring compulsory heirs. He was only survivied by his siblings, who are his collateral relatives and, therefore, are not entitled to any letitime – that part of the testator’s property which he cannot dispose of because the law reserved it for compulsory heirs.

“The compulsory heirs ay be classified into (1) primary, (2) secondary and (3) concurring. The primary compulsory heirs are those who have precedence over and exclude other compulsory heirs; legitimate children and descendants are primary compulsory heirs. The secondary compulsory heirs are those who succeed only in the absence of the primary heirs; the legitimate parents and ascendants are secondary compulsory heirs. The concurring compulsory heirs are those who succeed together with the primary or secondary compyulsory heirs; the illegitimate children and the surviving spouse are concurring compulsory heirs.”

The decedent not having left ant compulsory heir who is entitled to any legitime, he was at liberty to donate all his properties, even if nothing was left for his siblings-collateral relatives to inherit. His donation to petitioner, assuming that it was valid, is deemed as donation made to a stranger, chargeable against the free portion of the estate. There being no compulsory heir, however, the donated property is not subject to collation.

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On the second issue:

The decedent’s remaining estate should thus be partitioned equally among his heirs-siblings-collateral relatives, herein petitioner and respondents, pursuant to the provision of the Civil Code, viz:

Art. 1003. if there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles.

Art. 1004. Should the only survivors be brothers and sisters of the full blood, they shall inherit in equal shares.

WHEREFORE, the petition is GRANTED. The Court of Appeals Decision ordering the collation of the property donated to petitioner, Amelia N. Arellano, to the estate of the deceased Angel N. Pascual, Jr. is SET ASIDE.

Let the records of the case be REMANDED to the court of origin, Branch 135 of the Makati Regional Trial Court, which is ordered to conduct further proceedings in the case for the purpose of determining what finally forms part of the estate, and thereafter to divide whatever remains of it equally among the parties.

SO ORDERED.

Peralta, Bersamin, Mendoza and Sereno, JJ., concur.

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MANG-OY V COURT OF APPEALSNo. L-27422, 12 September 1986

144 SCRA 33

Article 1080 permits a person to make a partition of his estate by an act inter vivos, or by will. Such partition shall be respected provided the legitime of the compulsory heirs is not prejudiced. The Court held that this partition is not in the nature of a donation nor of a will. It is of a special character which does not even require the execution of a prior will. The partition is revocable at any time during the lifetime of the causante, and does not operate to convey ownership of the properties involved until the death of the latter.

Cruz, J.:

The hero if this story we shall call Old Man Tumpao although at the time it all began he was still a young and vigorous man. He had a first wife by whom he begot three children who are the private respondents in this case. Upon her death, he took to himself a second wife, by whom he had no issue but who had two children she had “adopted” according to the practice of the Igorots then. It is their children who, with some others, are the petitioners in this case.

The facts are as simple as the ancient hills.

On September 4, 1937, Old Man Tumpao executed what he called a “last will and testament” the dispositive portion of which declared:

Lastly, I appoint my son Bando Tumpao whom I named, that after departing from this life, he shall be the one to carry or fulfill my Testament, and that he shall have the power to see and dispose all what I have started, he shall not change what I have already stated in my Testament so that there is truth in my will, I will affix my right hand thumb mark at the end of my written name because I do not know how to read and write, after it has been read to me and affirm all what is my Will this 2:00 O’clock in the afternoon this 4 th day of September 1937, before those who are present and have heard what I have stated, Pico, La Trinidad, Benguet, 4th September 1937.

The contents of this document were read to the beneficiaries named therein who at the time were already occupying the portions respectively allotted to them. In implementation of this document, they then, on September 7, 1937, executed an agreement providing as follows:

x x x

Two days later, Old Man Tumpao died.

The parties remained in possession of the lots assigned to them, apparently in obedience to the wish of Old Man Tumpao as expressed in his last “will” and affirmed by the other above-quoted instrument. But things changed unexpectedly in 1960,

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twenty-three years later, that brought this matter to this court.

On November 4, 1960, the respondents executed an extra judicial partition in which they divided the property of Old Man Tumpao among the three of them only, to the exclusion of the other persons mentioned in the above-quoted documents. By virtue of this partition, Old Man Tumpao’s title was canceled and another one issued in favor the three respondents.

It is this title that is now being questioned by the petitioners, who are suing for reconveyance. They had been sustained by the trial court, which, however, was reversed by the Court of Appeals. They are before this Court to challenge that reversal.

In deciding against them, the Court of Appeals held that the “will” executed by Old Man Tumpao was null and void because it had not been probated. The agreement of partition among the supposed beneficiaries of the will was nullified because it was a partition inter vivos and had not been approved by the Director of the Bureau of Non-Christian Tribes. It was likewise held that the land in dispute was acquired during Old Man Tumpao’s first marriage although it was registered during his second marriage and so the petitioners were liable in rentals for the lots occupied by them, as well as attorney’s fees.

After examining the musty records, we sustain the ruling, made both by the trial court and the Court of Appeals – that the will, not having been probated as required by law, was inoperative as such. The settled principle, as announced in a long line of decisions in accordance with the Rules of Court, is that no will shall pass either real or personal property unless it is proved or allowed in court.

We find, however, that the document may be sustained on the basis of Art. 1056 of the Civil Code of 1889, which was in force at the time the said document was executed by Old Man Tumpao in 1937. The article reads as follows:

Art. 1056. If the testator should make a partition of his properties by an act inter vivos, or by will, such partition shall stand in so far as it does not prejudice the legitime of forced heirs.

On this score, we agree with the trial court. The applicable decision is Albela v Albela, also cited by the Court of Appeals, which Justice J.B.L. Reyes, as the ponente.

In this case, Agustin Albela executed on January 19, 1935, a deed of partition dividing two parcels of land between his daughters, Eduarda and Restituta, who indicated their conformity by signing the instrument. They took possession of their respective shares upon his death, but fourteen years later, Restituta ejected Eduarda from the lot alleging title by purchase from a third party and denying the existence of the partition. Eduarda sued for recovery and was upheld by the trial court on the basis of the deed of partition.

x x x In their argument, appellants do not question

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the authenticity of the above document, but argue against its validity, on the ground summarized in their brief, as follows:

Therefore, the allegations of the plaintiff-appellee, Eduarda Albela, rest on a document which defies classification. If it is a deed of partition, it is null and void because it is not embodied in a public document; if it is a simple donation of realty, it is also null and void because it is not in a public document and there is no acceptance; if it is a donation mortis causa, certainly it is null and void because it doe not follow the rules governing testamentary succession; and if ever it is to be classified as a will, more so, it is still null and void because it does not conform to the requirements of Section 618, Act 190 as amended by Act 2645.

None of these objections is valid in law. The appellants evidently fail to realize that Article 1056 of the Civil Code of 1889 authorizes a testator to partition inter vivos his property, and distribute them among his heirs, and that this partition is not necessarily either a donation nor a testament, but an instrument of a special character, sui generis, which is revocable at any time by the causante during his lifetime, and does not operate as a conveyance of title until his death. It derives its binding force on the heirs from the respect due to the will of the owner of the property, limited only by his creditors and the intangibility of the legitime of the forced heirs. x x x.

That such partition is not governed by the rules of wills or donation inter vivos is a consequence of its special nature. x x x.

It was sufficient, therefore, that the partition, Exhibit A, should be in writing. It does not have to be in a public instrument except to affect third persons, being valid between the parties who signed it in its present form.

If any invalidity could be alleged against the partition, it would be in the absence of a previous testament preceding it (Legato v Verzosa, 54 Phil 766). And even this may not be indispensable in the present case for the testator’s partition did not depart from the shares allotted to his heirs by law of intestacy. Nor is a prior will necessary under Article 1080 of the new Civil Code, which replaced the word “testator” in Article 1056 of the Code of 1889 which the broader term “person.”

There is no difference in legal effect between Agustin Albela’s deed of partition and Old Man Tumpao’s “last will and testament”. Both are sustainable under Article 1056 of the Civil Code, which was in force at the time they were executed. Even as Agustin Albela’s partition was signed by the two daughters themselves, so was Old

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Man Tumpao’s “will” affirmed by the beneficiaries in their agreement of September 7, 1937, which reiterated and recognized the terms of such “will.” While not valid as a partition inter vivos under Articles 816 and 1271 of the old Civil Code, it was nevertheless binding on the parties as proof of their conformity to the dispositions made by Old Man Tumpao in his “last will and testament.”

x x x

WHEREFORE, the decision of the Court of Appeals is REVERSED and that of the trial court sustained, with costs against respondents.

SO ORDERED.

Yap (Chairman), Narvasa, Melencio-Herrera and Feliciano, JJ., concur.

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CHAVEZ V INTERMEDIATE APPELLATE COURTG. R. No. L-68282, 8 November 1990

191 SCRA 211

While Mang-oy holds that a partition inter vivos executed in accordance with Article 1080 is revocable by a person at any time during his or her lifetime, and that such partition will not result in a transfer of ownership to his heirs during his lifetime, Chavez holds that an exception may be taken if the partition has in fact been implemented and that one (or some) of the heirs, with the consent of the person making it, conveys or sells his or her pro-indiviso share to another co-heir. Estoppel bars a selling heir from disavowing the sale and from proceeding contrary thereto.

The Court, in passing, mentioned that the several sales among the co-heirs did not constitute contracts involving future inheritance. This is because each of the sales among the co-heirs was with the expressed consent and authorization fro the parent who executed the partition. This was construed as a sale of the parent herself.

Finally, it must be noted that in the case of a partition inter vivos under Article 1080, the law does not specify a particular form. The court opined that such a partition may be made orally or in writing.

Griño-Aquino, J.:

The land in question is the paraphernal property of petitioner Manuela Buenavista (defendant in Civil Case No. 1934 of the Court of First Instance of Camarines Norte) who had six (6) children, named Antonio, Rosario, Concepcion, Raquel, Presentacion and Floserpina. The first three were the plaintiff, and the last three, with their mother, were the defendants in Civil Case No. 1934.

On July 11, 1958, Presentacion Chavez, with the conformity of her mother, Manuela Buenavista, executed a deed of sale whereby she sold her 1/6 undivided share of the land in question to her sister Conception Chavez for P450.00.

Two years later, on May 2, 1960, Floserpina Chavez, with the conformity of her mother, also sold her 1/6 undivided share of the same land to her sister, Concepcion, for the price of P450.00. On May 19, 1960, Raquel, with the conformity of her mother, likewise sold her undivided 1/6 share of the same property to Concepcion for P600.00. Having acquired the shares of Presentation, Floserpina and Raquel, Concepcion thereby became the owner of a total undivided 4/6 share of the land in question which Antonio and Rosario as owners of the remaining 2/6 shares.

In all the documents, the following stipulation appears;

Na ang nasabing lupa na sa amin ng aming ina, ang nasabing Manuela Buenavista, kung kaya ito ay hahatiin naming anim (6) na mga magkakapatid, bagama’t hindi pa naming maisagawa ang paghahati o particion; ako bilang isa sa anim na magkakapatid ay may karapatan sa isang ikaanim (1/6) na bahagi ng nasabing lupa, gayon pa man ang kasunduan sa nasabing pagkamana

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namin ay samantalang nabubuhay pa ang aming ina, siya ang makakandili at makikinabang sa nasabing pag-aari.

meaning that the owner, Manuela Buenavista, had assigned or distributed to her children, in equal pro-indiviso shares, her paraphernal property situated at Sitio Langas, barrio Calangcawan Norte, Vinzons, Camarines Norte, with an area of 4.1163 hectares more or less under Tax Declaration No. 9303 and assessed at P1,630.00. The owner, however, reserved for herself the possession of the land and the enjoyment of the fruits during her lifetime.

Despite the transfer or assignments her children had executed with her conformity ten years earlier, Manuela Buenavista, on August 27, 1968, signed a “Bilihang Patuluyan ng Lupa” of the entire property in favor of her daughter Raquel Chavez, and her husband Gerardo Jimenez. On October 7, 1968, Antonio, Rosario, and Concepcion filed Civil Case No. 1934 against their mother Manuela and their sister Raquel. Thereupon, Manuela sold the entire property to Pepito Ferrer, on February 4, 1969 with right to repurchase. Ferrer was later sued as an additional defendant in Civil Case No. 1934.

After the trial, judgment was rendered by the trial court dismissing the complaint, dissolving the preliminary injunction it had previously issued, and ordering the plaintiffs to pay the costs. The court did not award damages.

The plaintiffs, Antonio, Rosario and Concepcion, appealed to the Court of Appeals.

On March 26, 1984, the Court of Appeals reversed the trial court, The dispositive portion of its decision reads:

WHEREFORE, we reverse and set aside the appealed decision and render another one declaring the deeds of sale in favor of Raquel Chavez and Gerardo Jimenez and the sale in favor of defendant Pepito Ferrer as null and void ab initio and further that the documents are evidence of a valid partition of the land in question by and between Manuela Buenavista and her children, subject to her right of usufruct during her lifetime, without pronouncement as to damages and costs.

On April 5, 1984, the petitioner filed a motion for reconsideration alleging among others:

x x x

3. That the late Manuela Buenavista vda. De Chavez, one of the defendants-appellees, was found to have executed during her lifetime a LAST WILL AND TESTAMENT x x x and there is now a pending petition for probate of said last will and testament before the Municipal Trial Court of Vinzons, Cmarines Norte;

x x x

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6. In the case at bar, even granting that the late Manuela Buenavista’s execution of the document referred to as Exhibit A, B, C and D are valid, nevertheless its validity cased from the time that she executed the Last Will and Testament x x x because the execution of the Last Will invalidates the former act of the said Manuela Buenavista;

7. That the Last Will and Testament x x x which is now pending probate I the Municipal Trial Court of Vinzons, Camarines Norte, will finally affect the property – hence there is a ground for this motion for reconsideration and/or to suspend the decision – pending final outcome of the probate of the last will and testament of the late Manuela Buenavista.

Private respondents opposed the Motion for Reconsideration asserting that the partition inter vivos which had been implemented long before the execution of the said Last Will and Testament could not be revoked by the later instrument; that the supposed Last Will and Testament was executed on December 11, 1969, more than one year after the filing of the complaint for annulment on October 6, 1968, when said Manuela Buenavista was already senile and not of disposing mind; that while Manuela Buenavista was able to sign with her own hand the several Deeds of Sale, the supposed Last Will and Testament bears her thumb mark only; that Manuela Buenavista had no more property to dispose of by will on December 11, 1969, when she supposedly executed her Last Will and Testament.

On June 28, 1984, the Appellate Court denied the Motion for Reconsideration.

x x x

Article 1080 of the new Civil Code allows a person to make a partition of his estate either by an act inter vivos or by will and such partition shall be respected insofar as it does not prejudice the legitime of compulsory heirs. While the law prohibits contracts upon future inheritance, the partition by a parent, as provided in Article 1080, is a case expressly authorized by law. Art. 1080 of the new Civil Code clearly gives a person two options in making a partition of his estate: either by an act inter vivos or by will. When a person makes a partition by will, it is imperative that such partition must be executed in accordance with the provisions of the law on wills; however, when a person makes a partition of his estate by an act inter vivos, such partition may even be oral or written, and need not be in the form of a will, provided that the partition does not prejudice the legitime of compulsory heirs.

In numerous cases it has been held or stated that parol partition may be sustained on the ground of estoppel of the parties to assert the rights of a tenant in common as to parts of the land divided by parol partition as to which possession in severalty was taken and acts of individual ownership were exercised. And a court of equity will recognize the agreement and decree it to be valid and effectual for the purpose of concluding the rights of the parties as between each other to hold their respective parts in severalty.

A parol partition may also be sustained on the ground that the parties thereto have acquiesced in and ratified the partition by taking possession in severalty,

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exercising acts of ownership with respect thereto, or otherwise recognizing the existence of the partition. (Hernandez v Andal, et al., 78 Phil 196, 203.)

In the instant case, the respondent appellate court declared the Deeds of Sale executed by Presentacion, Floserpina and Raquel, all surnamed Chavez, in favor of Concepcion Chavez as evidence of a valid partition of the land in question by and between Manuela Buenavista and her children as she not only have her authority thereto but also signed the sales. The Deeds of Sale are not contracts entered into with respect to future inheritance, but a contract perfected and consummated during the lifetime of Manuela Buenavista who signed the same and gave her consent thereto. Such partition inter vivos, executed by the property owner herself, is valid.

x x x As the defendants freely participated in the partition, they are now estopped from denying and repudiating the consequences of their own voluntary acts. It is a general principle of law that no one may be permitted to disavow and go back upon his own acts, or to proceed contrary thereto. (Joaquin v Mitsumine, 34 Phil 858.)

Where a piece of land has been included in a partition, and there is no allegation that the inclusion was effected through improper means or without the petitioner’s knowledge, the partition barred any further litigation on said title and operated to bring the property under the control and jurisdiction of the court for proper disposition according to the tenor of the partition. x x x They cannot attack the partition collaterally x x x. (Ralla v Judge Untalan, 172 SCRA 858, 865, citing Torres v Encarnacion and de Borja, 89 Phil 678.)

As well argued by counsel for the respondents in their memorandum, it would be unjust and inequitable to allow Manuela Buenavista vda. De Chavez to revoke the sales she herself authorized as well as the sale she herself executed in favor of her son, only to execute a simulated sale in favor of her daughter Raquel who had already profited from the sale she made of the property she had received in the partition inter vivos; it would run counter to the doctrine that “no person should be allowed to unjustly enrich herself at the expense of another.”

WHEREFORE, finding no reversible error in the decision of the Court of Appeals in CA-G.R. No. CV-64708, the same is affirmed in toto. The petition for review is dismissed for lack of merit, with costs against the petitioner.

SO ORDERED.

Narvasa (Chairman), Cruz, Gancayco and Medialdea, JJ., concur.

593

ALONZO V INTERMEDIATE APPELLATE COURTNo. L-72873, 28 May 1987

150 SCRA 261

Article 1088 of the Code gives to co-heirs the right to redeem, within 30 days from written notice of the sale, the hereditary property sold by a co-heir to a stranger. The Court has interpreted this provision (as well as the counterpart provision in Article 1623) that the notice must be in writing and sent by the seller to all prospective redemptioners. The Court took exception in this case in view of the peculiar circumstances and waived the written notice requirement.

Cruz, J.:

The question is sometimes asked, in serious inquiry or in curious conjecture, whether we are a court of law or a court of justice. Do we apply the law even if it is unjust or do we administer justice even against the law? Thus queried, we do not equivocate. The answer is that we do neither because we are a court of both law and of justice. We apply the law with justice for that is our mission and purpose in the scheme of our Republic. The case is an illustration.

Five brothers and sisters inherited in equal pro-indiviso shares a parcel of land registered in the name of their deceased parents under OCT No. 10977 of the Register of Deeds of Tarlac.

On March 15, 1963, one of them, Celestino Padua, transferred his undivided share to the herein petitioner for the sum of P550.00 by way of absolute sale. One year later, on April 22, 1964, Eustaquia Padua, his sister, sold her own share to the same vendees, in an instrument denominated “Con Pacto de Retro Sale,” for the sum of P440.00.

By virtue of such agreements, the petitioners occupied, after the said sales, an area corresponding to two-fifths of the said lot, representing the portions sold to them. The vendees subsequently enclosed the same with a fence. In 1975, with their consent, their con Eduardo Alonzo and his wife built a semi-concrete house on a part of the enclosed area.

On February 25, 1976, Mariano Padua, one of the five co-heirs, sought to redeem the area sold to the spouses Alonzo, but his complaint was dismissed when it appeared that he was an American citizen. On May 27, 1977 however, Tecla Padua, another co-heir, filed her own complaint invoking the same right of redemption claimed by her brother.

The trial court x x x also dismissed the complaint, now on the ground that the right had lapsed, not having been exercised within thirty days from notice of the sales in 1963 and 1964. Although there was no written notice, it was held that actual knowledge of the sales by the co-heirs satisfied the requirement of the law.

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In truth, such actual notice as acquired by the co-heirs cannot be plausibly denied. The other co-heirs, including Tecla Padua, lived on the same lot, which consisted of only 604 square meters, including the portions sold to the petitioners. Eustaquia herself, who had sold her portion, was staying in the same house with her sister Tecla, who later claimed redemption. Moreover, the petitioners and the private respondents were close friends and neighbors whose children went to school together.

It is highly improbable that the other co-heirs were unaware of the sales and that they thought, as they alleged, that the areas occupied by the petitioners had merely been mortgaged by Celestino and Eustaquia. In the circumstances just narrated, it was impossible for Tecla not to know that the area occupied by the petitioners had been purchased by them from the other co-heirs. Especially significant was the erection thereon of the permanent semi-concrete structure by the petitioners’ son, which was done without objection on her part or of an of the other co-heirs.

The only real question in this case, therefore, is the correct interpretation and application of the pertinent law as invoked, interestingly enough, by both the petitioners and the private respondents. This is Article 1088 of the Civil Code providing as follows:

Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they do so within the period of one month from the time they were notified in writing of the sale by the vendor,

In reversing the trial court, the respondent court x x x declared that the notice required by the said article was written notice and that actual notice would not suffice as a substitute. Citing the same case of de Cornejo v Court of Appeals applied by the trial court, the respondent court held that decision, interpreting a like rule in Article 1623, stressed the need for written notice although no particular form was required.

Thus accordingly to Justice J.B.L. Reyes, who was the ponente of the Court, furnishing the co-heirs with a copy of the deed of sale of the property subject to redemption would satisfy the requirement for written notice. “So long, therefore, as the latter (i.e., the redemptioner) is informed in writing of the sale and the particulars thereof,” he declared, “the thirty days for redemption start running.”

In the earlier decision in Butte v Uy, the Court, speaking through the same learned jurist, emphasized that the written notice should be given by the vendor and not the vendees, conformably to a similar requirement under Article 1623, reading as follows:

Art. 1623. The right of legal pre-emption or redemption shall not be exercised except within thirty days from the notice in writing by the prospective vendor, or by the vendors, as the case may be. The deed of sale shall not be recorded in the Registry of Property, unless accompanied by an affidavit of the vendor that

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he has given written notice thereof to all possible redemptioners.

The right of redemption of co-owners excludes that of the adjoining owners.

As “it is thus apparent that the Philippine legislature in Article 1623 deliberately selected a particular method of giving notice, and that notice must be deemed exclusive,” the Court held that notice given by the vendees and not the vendor would not toll the running of the 30-day period.

The petition before us appears to be an illustration of the Holmes dictum that hard cases make bad laws” as the petitioners obviously cannot argue against the fact that there was really no written notice given by the vendors to their co-heirs. Strictly applied and interpreted, Article 1088 can lead to only one conclusion, to wit: that in view of such deficiency, the 30-day period for redemption had not began to run, much less expired in 1977.

But as has also been aptly observed, we test a law by its results; and likewise, we may add, but is purposes. It is a cardinal rule that, in seeking the meaning of the law, the first concern of the judge should be to discover in its provisions the intent of the lawmaker. Unquestionably, the law should never be interpreted in such a way as to cause injustice as this is never the intent, in fact, for we presume the good motives of the legislature, is to render justice.

Thus, we interpret and apply the law not independently of but in consonance with justice. Law and justice are inseparable, and we must keep them so. To be sure, there are some laws that, while generally valid, may seem arbitrary when applied in a particular case because of its peculiar circumstances. In such a situation, we are not bound, because only of our nature and functions, to apply them just the same, in slavish obedience to their language. What we do instead is find a balance between the word and the will, that justice may be done even as the law is obeyed.

As judges, we are not automatons. We do not and must not unfeelingly apply the law as it is worded, yielding like robots to the literal command without regard to its cause and consequence. “Courts are apt to err by striking too closely to the words of a law,” so we are warned by Justice Holmes again, “where these words import a policy that goes beyond them.” While we admittedly may not legislate, we nevertheless have the power to interpret the law in such a way as to reflect the will of the legislature. While we may not read into the law a purpose that is not there, we nevertheless have the right to read out of it the reason for its enactment. In doing so, we defer not to the “letter than killeth,” but to “the spirit that vivifieth,” to give effect to the lawmaker’s will.

The spirit rather than the letter of a statute determines its constructions, hence a statute must be read according to its spirit or intent. For what is within the spirit is within the statute although it is not within the letter thereof, and that which is within the letter but not within the spirit is no within the statute. Stated differently, a thing which is within the intent of the lawmaker is as much within the statute as if within the letter; and a thing which is within the letter of the statute is not within the statute unless within the intent of the

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lawmakers.

In requiring written notice, Article 1088 seeks to endure that the redemptioner is properly notified of the sale and to indicate the date of such notice as the starting time of the 30-day period of redemption. Considering the shortness of the period, it is really necessary, as a general rule, to pinpoint the precise date it is supposed to being, to obviate any problem of alleged delays, sometimes consisting of only a day or two.

The instant case presents no such problem because the right of redemption was invoked not days but years after the sales were made in 1963 and 1964. The complaint was filed by Tecla Padua in 1977, thirteen years after the first sale and fourteen years after the second sale. The delay invoked by the petitioners extends to more than a decade, assuming of course that there was a valid notice that tolled the running of the period of redemption.

Was there a valid notice? Granting that the law requires the notice to be written, would such notice be necessary in this case? Assuming there was a valid notice although it was not in writing, would there be any question that the 30-day period for redemption had expired long before the complaint was filed in 1977?

In the face of the established facts, we cannot accept the private respondents’ pretence that they were unaware of the sales made by their brother and sister in 1963 and 1964. By requiring written proof of such notice, we would be closing our eyes to the obvious truth in favor of their palpably false claim of ignorance, thus exalting the letter of the law over its purpose. The purpose is clear enough: to make sure that the redemptioners are duly notified. We are satisfied that in this case the other brothers and sisters were actually informed, although not in writing, of the sales made in 1963 and 1964, and that such notice was sufficient.

Now, when did the 30-day period of redemption begin?

While we are not here to declare that this period started from the dates of such sales in 1963 and 1964, we do say that sometime between those years and 1976, when the first complaint for redemption was filed, the other co-heirs were actually informed of the sale and that thereafter the 30-day period started running and ultimately expired. This could have happened any time during the interval of thirteen years, when none of the co-heirs made a move to redeem the properties sold. By 1977, in other words, when Tecla Padua filed her complaint, the right of redemption had already been extinguished because the period for its exercise had already expired.

x x x

It was the perfectly natural thing for the co-heirs to wonder why the spouses Alonzo, who were not among them, should enclose a portion of the inherited lot and built thereon a house of strong materials. This definitely was not the act of a temporary possessor or a mere mortgagee. This certainly looked like an act of ownership. Yet,

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given this unseemingly situation, none of the co-heirs saw fit to object or at least inquire, to ascertain the facts, which were readily available. It took all of thirteen years before one of them chose to claim the right of redemption, but then it was already too late.

We realize that in arriving at our conclusion today, we are deviating from the strict letter of the law, which the respondent court understandably applied pursuant to existing jurisprudence. The said court acted properly as it had no competence to reverse the doctrines laid down by this Court in the above cited cases. In fact, and this should be clearly stressed, we ourselves are not abandoning the de Cornejo and Butte doctrines. What we are doing simply is adopting an exception to the general rule, in view of the peculiar circumstances of this case.

The co-heirs in this case were undeniably informed of the sales although no notice in writing was given them. And there is no doubt either that the 30-day period began and ended during the 14 years between the sales in question and the filing of the complaint for redemption in 1977, without the co-heirs exercising their right of redemption. These are the justifications for this exception.

More than twenty centuries ago, Justinian defined justice “as the constant and perpetual wish to render every one his due.” That wish continues to motivate this Court when it assesses the facts and the law in every case brought to it for decision. Justice is always an essential ingredient of its decisions. Thus, when the facts warrant, we interpret the law in way that will render justice, presuming that it was the intention of the lawmaker, to begin with, that the law be dispensed with justice. So we have done in this case.

WHEREFORE, the petition is granted. The decision of the respondent court is REVERSED and that of the trial court is reinstated, without any pronouncement as to costs. It is so ordered.

Teehankee, C.J., Yap, Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Gancayco, Padilla, Bidin, Sarmiento and Cortes. JJ., concur. Fernan and Feliciano, JJ., on leave.

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BAUTISTA v BAUTISTAG.R. No. 160556. 3 August 2007

529 SCRA 187

Bautista holds that an action to set aside a void extra judicial partition is imprescriptible. However, the Court’s statement that an invalid partition transmits no right is rather disturbing. Notice that it is the death of the decedent that transmits ownership of the hereditary estate to the heirs – not the partition that is executed between or among them. In Go Ong v Court of Appeals, the Court upheld the sale of ½ of the property which pertains to the conjugal share of the wife, setting aside only the sale insofar as the ½ portion of the property that is subject of settlement proceedings. In the instant case, Angelica and Alegria already acquired ownership of their respective shares of the property upon the demise of Teodora. Shouldn’t the Court uphold the sale to Pacita, and Pacita’s sale to Pedro, at least insofar as the shares of Angelica and Alegria are concerned?

Carpio-Morales, J.:

During her lifetime, Teodora Rosario was the owner of a 211.80-square meter parcel of land (the property) in Poblacion, San Carlos city, Pangasinan, covered by Transfer Certificate of Title (TCT) No. 12951. She died intestate on January 19, 1970, leaving behind her spouse Isidro Bautista (Isidro) and five children namely: Teofilo Bautista (Teofilo), Alegria Bautista (Alegria), Angelica Bautista (Angelica), Pacita Bautista (Pacita), and Gil Bautista (Gil).

On April 21, 1981, Isidro and four of his five children – Pacita, Gil,. Alegria, and Angelica – executed a Deed of Extra-Judicial Partition of the property in which Isidro waived his share in favor of his said four children. Teofilo was excluded from the partition.

Alegria and Angelica, who, under the Deed of Extra-Judicial Partition, acquired ½ of the property, sold the same, by Deed of Absolute Sale dated May 14, 1981, to their sibling Pacita and her common-law husband Pedro Tandoc (Pedro).

Pacita and Pedro soon obtained tax declarations and TCT No. 18777 in their names over 209.85 square meters of the property including the shares they purchased from Angelica and Alegria.

Pacita, with Pedro’s conformity, later conveyed via Deed of Absolute Sale dated April 13, 1993 ½ of the property in favor of Cesar Tamondong, Pedro’s nephew.

On January 24, 1994, herein petitioner Teofilo, represented by his attorney-in-fact Francisco Muñoz, filed a Complaint against his siblings Alegria and Angelica, along with Pedro (the common law husband of his already deceased sister Pacita), Pricilla Bautista (wife of his already deceased brother Gil), Pricilla’s children Gilbert, Jim, Glenda, Guen, and Gelacio and Cesar Tamondong before the Regional Trial

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Court (RTC) of San Carlos City, for annulment of documents, partition, recovery of ownership, possession and damages.

In his complaint, petitioner claimed that his co-heirs defrauded him of his rightful share of the property and that the deed of sale executed by Pacita in favor of Cesar Tamondong was fictitious as it was impossible for her to have executed the same in Manila, she being already seriously ill at the time.

In their answer, the defendants – herein respondents sisters Alegria and Angelica, who were jointed therein by their co-defendants-respondents Pricilla, Gilbert, Jim, Glenda, Guen, Gelacio, and Gracia, claimed that it was Pacita who caused the execution of the Deed of Extra-Judicial Partition and because they trusted Pacita, they signed the document without scrutinizing it; and that they learned about the contents of the partition only upon Teofilo’s filing of the complaint.

By way of a cross claim against Pedro and Cesar Tamondong, the answering defendants-respondents claimed that a few weeks after the partition, Pacita approached Angelica and Alegria to borrow their share in the property on her representation that it would be used as security for a business loan; and that agreeing to accommodate Pacita, Angelica and Alegria signed a document which Pacita prepared which turned out to be a deed of absolute sale in Pacita’s favor.

In their Answer with Counterclaim, Pedro and Cesar Tamondong claimed that they were buyers in good faith. In any event, they contended that prescription had set in and that the complaint was a mere rehash of a previous complaint for falsification of public document which had been dismissed by the prosecutor’s office.

By Decision of June 24, 1999, Branch 57 of the RTC of San Carlos City rendered judgment in favor of Teofilo, disposing as follows:

“Wherefore, in view of the foregoing, judgment is hereby rendered:

1) Declaring as null and void and of no force and effect the following documents:

a) Deed of Extrajudicial Partition dated April 21, 1981;b) Deed of Absolute Sale dated May 14, 1981;c) Transfer Certificate of Title No. 18777;d) Tax Declaration Nos. 59941, 45999 and 46006;e) Deed of Absolute Sale dated April 13, 1993.

2) Ordering the partition of the land in question among the compulsory heirs of the late Spouses Isidro Bautista and Teodora Rosario;

3) Ordering defendants Cesar Tamondong and Pedro Tandoc to vacate the premises.”

On appeal by Pedro and Cesar Tamondong, the Court of Appeals, by Decision of February 21, 2003, reversed and set aside the trial court’s decision and dismissed

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Teofilo’s complaint on the ground of prescription. Teofilo filed the present Petition for Review on Certiorari.

The petition is impressed with merit.

The Court of Appeals, in holding that prescription has set in, reasoned:

“Unquestionably, the Deed of Extrajudicial Partition is invalid insofar as it affects the legitimate share pertaining to the defendant-appellee in the property in question. There can be no question that the Deed of Extrajudicial Partition was fraudulently obtained. Hence an action to set is aside on the ground of fraud could be instituted. Such action for the annulment of the said partition, however, must be brought within four years from the discovery of the fraud. Significantly, it cannot be denied, either, that by its registration in the manner provided by law, a transaction may be known actually or constructively.

In the present case, defendant-appellee is deemed to have been constructively notified of the extrajudicial settlement by reason of its registration and annotation in the certificate of title over the subject land on December 21, 1981. From the time of its registration, defendant-appellee has four (4) years or until 21 December 1985, within which to file his objection or to demand the appropriate settlement of the estate. Unfortunately, defendant-appellee failed to institute the present civil action within said period, having filed the same only on 17 January 1994, or more than twelve (12) years from the registration of the deed of extrajudicial partition. Hence, defendant-appellee’s right to question the deed of extrajudicial partition has prescribed.

x x x

As gathered from the above-quoted portion of its decision, the court of Appeals applied the prescriptive periods for annulment on the ground of fraud and for reconveyance of property under a constructive trust.

The extrajudicial partition executed by Teofilo’s co-heirs was invalid, however. So, Segura v Segura instructs:

“x x x The partition in the present case was invalid because it excluded six of the nine heirs who were entitled to equal shares in the partitioned property. Under the rule, “no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof. As the partition was a total nullity and did not affect the excluded heirs, it was not correct for the trial court to hold that their right to challenge the partition had prescribed after two years x x x.”

The deed of extrajudicial partition in the case at bar being invalid, the action to have it annulled does not prescribe.

Since the deed of extrajudicial partition is invalid, it transmitted no rights to Teofilo’s co-heirs. Consequently, the subsequent transfer by Angelica and Alegria of ½

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of the property to Pacita and her husband Pedro, as well as the transfer of ½ of the property to Cesar Tamondong is invalid, hence conferring no rights upon the transferees under the principle of nemo dat quod non habet.

WHEREFORE, the petition is GRANTED. The decision of the court a quo is SET ASIDE and the Decision of the Regional Trial Court of San Carlos City, Pangasinan, Branch 57, is REINSTATED.

Quisumbing (Chairperson), Carpio, Tiñga and Velasco, Jr., JJ., concur,

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NON v COURT OF APPEALSG.R. No. 137287, 15 February 2000

325 SCRA 652

The omission of a compulsory heir in the distribution of the partible estate, in the absence of fraud or bad faith, will not result in the rescission of the partition. In Article 1104, the law uses the phrase “preterition of any of the compulsory heirs”. Preterition as used in this article should be distinguished from preterition under Article 854.

Vitug, J.:

x x x

During their lifetime, the spouses Julian C. Viado and Virginia P. Viado owned several pieces of property, among them a house and lot located at 147 Isarog Street, La Loma, Quezon City, x x x. Virginia P. Viado died on 20 October 1982. Julian Viado died three years later on 15 November 1985. Surviving them were their children – Nilo Viado, Leah Viado Jacobs, and herein petitioners Rebecca Viado married to Jose Non, and Delia Viado. Nilo Viado and Leah Viado Jacobs both died on 22 April 1987. Nilo Viado left behind as his own sole heirs herein respondents – his wife Alicia Viado and their two children Cerri Viado and Fe Fides Viado.

Petitioners (Rebecca with her husband Jose, and Delia) and respondents (Alicia and her daughters Cherri and Fe) shared since 1977 a common residence at the Isarog property. Soon, however, tension would appear to have escalated between petitioner Rebecca Viado and respondent Alicia Viado after the former asked that the property be equally divided between the two families to make room for the growing children. Respondents, forthwith, claimed absolute ownership over the entire property and demanded that petitioners vacate the portion occupied by the latter. On 01 February 1988, petitioners, asserting co-ownership over the property in question, filed a case for partition before the Quezon City RTC (Branch 93).

Respondents predicate their claim of absolute ownership over the subject property on two documents – a deed of donation executed by the late Julian Viado covering his one-half conjugal share of the Isarog property in favor of Nilo Viado and a Deed of Extrajudicial Settlement in which Julian Viado, Leah Viado Jacobs (through a power of attorney in favor of Nilo Viado) and petitioner Rebecca Viado waived in favor of Nilo Viado their rights and interests over their share of the property inherited from Virginia Viado. Both instruments were executed on 26 August 1983 and registered on 07 January 1988 by virtue of which Transfer Certificate of Title No. 42682 was cancelled and new Transfer Certificate of Title No. 373646 was issued to the heirs of Nilo Viado.

Petitioners, in their action for partition, attacked the validity of the foregoing instruments, contending that the late Nilo Viado employed forgery and undue influence to coerce Julian Viado to execute the deed of donation. Petitioner Rebecca

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Viado, in her particular case, averred that her brother Nilo Viado employed fraud to procure her signature to the deed of extrajudicial settlement. She added that the exclusion of her retarded sister, Delia Viado, in the extrajudicial settlement, resulted in the latter’s preterition that should warrant its annulment. Finally petitioners asseverated that the assailed instruments, although executed on 23 August 1983, were registered only five years later, on 07 January 1988, when the three parties thereto, namely Julian viado, Nilo Viado and Leah Viado Jacobs had already died.

Assessing the evidence before it, the trial court found for respondents and adjudged Alicia Viado and her children as being the true owners of the disputed property.

On appeal, the Court of Appeals affirmed the decision of the trial court with modification by ordering the remand of the records of the case to the court a quo for further proceedings to determine the value of the property and the amount respondents should pay to petitioner Delia Viado for having been preterited in the deed of extrajudicial settlement.

Petitioners are now before the Supreme Court to seek the reversal of the decision of the Court of Appeals.

The appellate court ruled correctly.

When Virginia P. Viado died intestate in 1982, her part of the conjugal property, the Isarog property in question, was transmitted to her heirs – her husband Julian and their children Nilo Viado, Rebecca Viado, Leah Viado and Delia Viado. The inheritance which vested from the moment of the death of the decedent remained in a co-ownership regime among the heirs until partition. Every act intended to put an end to indivision among co-heirs and legatees or devisees would be a partition although it would purport to be a sale, an exchange, a compromise, a donation or an extrajudicial settlement.

In debunking the continued existence of a co-ownership among the parties hereto, respondents rely on the deed of donation and deed of extrajudicial settlement which consolidated the title solely to Nilo Viado. Petitioners assail the due execution of the document on the grounds heretofore expressed.

Unfortunately for petitioners, the issues they have raised boil down to the appreciation of the evidence, a matter that has been resolved by both the trial court and the appellate court. The Court of Appeals, in sustaining the court a quo, has found the evidence submitted by petitioners to be utterly wanting, consisting of, by and large, self-serving testimonies. While asserting that Nilo Viado employed fraud, forgery and undue influence in procuring the signatures of the parties to the deeds of donation and of extrajudicial settlement, petitioners are vague, however, on how and in what manner those supposed vices occurred. Neither have petitioners shown proof why Julian Viado should be held incapable of exercising sufficient judgment in ceding his rights and interest over the property to Nilo Viado. The asseveration of petitioner

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Rebecca Viado that she has signed the deed of extrajudicial settlement on the mistaken belief that the instrument merely pertained to the administration of the property is too tenuous to accept. It is also quite difficult to believe that Rebecca Viado, a teacher by profession, could have misunderstood the tenor of the assailed document,

The fact alone that the two deeds were registered five years after date of their execution did not adversely affect their validity nor would such circumstance alone be indicative of fraud. The registration of the documents was a ministerial act and merely created a constructive notice of its contents against all third persons. Among the parties, the instruments remained completely valid and binding.

The exclusion of petitioner Delia Viado, allegedly to be a retardate, from the deed of extrajudicial settlement verily has had the effect of preterition. This kind of preterition, however, in the absence of fraud and bad faith, does not justify a collateral attack on Transfer Certificate of Title No. 373646. The relief, as so correctly pointed out by the Court of Appeals, instead rests on Article 1104 of the Civil Code to the effect that where the preterition is not attended by bad faith and fraud, the partition shall not be rescinded but the preterited heir shall be paid the value of the share pertaining to her. Again, the appellate court has thus acted properly in ordering the remand of the case for further proceedings to make the proper valuation of the Isarog Property and ascertainment of the amount due petitioner Delia Viado.

WHEREFORE, the instant petition is DENIED, and the decision dated 29 May 1996 in CA-G.R. No. 37272 of the Court of Appeals is AFFIRMED. No special pronouncement on costs.

SO ORDERED.

Melo (Chairman), Panganiban, Purisima and Gonzaga-Reyes, JJ., concur.

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