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Art. 841 Will valid even though there is no institution of heir

G.R. No. 76648 February 6! 1"88

#$% $%&R' (F #$% )A#% *A#&)+% *(N#&N()A,'AN'(N! -etitioners!

vs.

(/R# (F A00%A)' and %+/AR+( F. $%RNAN+%! res-ondents.

This is a petition for review on certiorari of the decision of the Court of Appeals 1 promulgated August

29,1986 affirming in toto the decision of the Regional Trial Court of Manila, ranch !!"" 2 dated March 21,

198#, the dispositive part of which reads$

%&'R'()R', the Court renders *udgment declaring the holographic will mar+ed in evidence as 'hi-it

.&. as one wholl/ written, dated, and signed freel/ -/ the late &erminia Montinola in accordance with law

while in possession of full testamentar/ capacit/, and allowing and admitting the same to pro-ate0

pon the finalit/ of the decision, let letters testamentar/ issue to the eecutor, 'duardo (0 &ernande, as

well as the certificate of pro-ate prescri-ed under 3ection 14 of Rule 56 of the Rules of Court0

3) )R'R'0 4

This case arose from a petition filed -/ private respondent Att/0 'duardo (0 &ernande on April 22, 1981

with the Court of (irst "nstance of Manila 7now Regional Trial Court see+ing the pro-ate of the

holographic will of the late &erminia Montinola eecuted on anuar/ 28, 198:0 ; The testatri, who died

single, parentless and childless on March 29,1981 at the age of 5: /ears, devised in this will several of

her real properties to specified persons0

)n April 29,1981, private respondent who was named eecutor in the will filed an urgent motion for

appointment of special administrator0 # %ith the conformit/ of all the relatives and heirs of the testatri

ecept oppositor, the court in its order of Ma/ #, 1981 6 appointed private respondent as 3pecial

Administrator of the testate estate of deceased0

)n une 29,1981, Matilde Montinola 3anson 7petitioner, the onl/ surviving sister of the deceased -ut

who was not named in the said win, filed her )pposition to

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The appellate court in its resolution of )cto-er 14, 1986, 1: denied the motion for new trial of petitioner

on the following grounds$ 71 the Affidavit of merit attached to the motion alleged that efforts were eerted

to locate unnamed witnesses onl/ after the court?s decision was handed down, and 72 the unnamed

witnesses would allegedl/ shed light on the fact of grave illness of the testatri as well as the undue

influence eerted on her which are merel/ corro-orative or cumulative since these facts were -rought to

light during the trial0

The motion for reconsideration of petitioner dated )cto-er 25, 1986 11 was li+ewise denied -/ the

appellate court in its resolution of @ovem-er 2:, 1986 12 on the ground that the affidavit of one T&AT T&' A'>' %" %A3 (RA'@TB

A@T'AT' T) C)@C'A "T3 ACTA AT' )( '!'CT")@ A@ T) 3&"' "T (R)M

3 )@ T&' RA

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)n the other hand, the contention of private respondent is that the motion for new trial was a proEforma

motion -ecause it was not in accordance with 3ec0 1, Rule #4 of the Rules of Court0 %e find merit in this

contention0

3ection 1, Rule #4 provides F

efore a final order or *udgment rendered -/ the Court of appeals -ecomes eecutor/, a motion for new

trial ma/ -e filed on the ground of newl/ discovered evidence which could not have -een discovered prior

to the trial in the court -elow -/ the eercise of the diligence and which is of such a character as would

pro-a-l/ change the result0 The motion shall -e accompanied -/ affidavits showing the facts constituting

the grounds therefor and the newl/ discovered evidence0

The affidavit of merit eecuted -/ >regorio Montinola 3anson alleged the following$

40 That in her plea for new trial in the said case, " have eerted efforts to locate witnesses whose

wherea-outs were not +nown to us during the trial in the lower court, -ut " have finall/ succeeded in

trac+ing them down=

;0 That despite their initial reluctance to testif/ in this case," am convinced that the/ would testif/

under proper su-poena for purposes of shedding light on the fact that the testatri was gravel/ ill at or -ut

the time that the Guestioned will was allegedl/ eecuted=

#0 That the/ had the clear opportunit/ to +now the circumstances under which the purported will was

eecuted= and that the/ +now for a fact that there was ?undue influence? eerted -/ petitioner and other

relatives to procure improper favors from the testatri=

14

3aid motion for new trial is not in su-stantial compliance with the reGuirements of Rule #40 The loneaffidavit of a witness who was alread/ presented said the hearing is hardl/ sufficient to *ustif/ the holding

of new trial0 The alleged new witnesses were unnamed without an/ certaint/ as, to their appearance

-efore the court to testif/0 Affiant attests onl/ on his -elief that the/ would testif/ if and when the/ are

su-poenaed -/ the court0 (urthermore, the allegations in the affidavit as to the undue influence eerted

on the testatri are mere conclusions and not statement of facts0 The reGuisite affidavits must state facts

and not mere conclusions or opinions, otherwise the/ are not valid0 1; The affidavits are reGuired to avoid

waste of the court?s time if the newl/ discovered evidence turns out to -e immaterial or of an/ evidentiar/

weight0

Moreover, it could not -e said that the evidence sought to -e presented is new having -een discovered

onl/ after the trial0 "t is apparent from the allegations of affiant that efforts to locate the witnesses were

eerted onl/ after the decision of the appellate court was handed down0 The trial lasted for a-out four/ears so that petitioner had ample time to find said alleged witnesses who were admittedl/ +nown to her0

The evidence which the petitioner now propose to present could have -een discovered and presented

during the hearing of the case, and there is no sufficient reason for concluding that had the petitioner

eercised proper diligence she would not have -een a-le to discover said evidence0 1#

"n addition, %e agree with the appellate court that since the alleged illness of the testatri as well as the

charges of undue influence eerted upon her had -een -rought to light during the trial, and new evidence

on this point is merel/ corro-orative and cumulative which is generall/ not a ground for new trial0 16

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Accordingl/, such evidence even if presented win not carr/ much pro-ative weight which can alter the

*udgment0 15

"t is ver/ patent that the motion for new trial was filed -/ petitioner onl/ for the purpose of dela/ing the

proceedings0 "n fact, petitioners son in his manifestation admitted that he had to reGuest a new law firm to

do ever/thing legall/ possi-le to meet the deadline for the filing of a motion for reconsideration andHor for

new trial0 18 This would eplain the haphaard preparation of the motion, thus failing to compl/ with thereGuirements of rule #4, which was filed on the last da/ of the reglementar/ period of appeal so that the

veracit/ of the ground relied upon is Guestiona-le0 The appellate court correctl/ denied the motion for new

trial0

The motion for new trial -eing proEforma, it does not interrupt the running of the period for appeal0 19

3ince petitioner?s motion was filed on 3eptem-er 2;,1986, the fifteenth or last da/ of the period to appeal,

the decision of the respondent court -ecame final on the following da/, 3eptem-er 2#0 And when the

motion for reconsideration of petitioner was filed on )cto-er 4:,1986, it was o-viousl/ filed out of time0

3ince the Guestioned decision has alread/ -ecome final and eecutor/, it is no longer within the province

of this Court to review it0 This -eing so, the findings of the pro-ate court as to the due eecution of the will

and the testamentar/ capacit/ of testatri are now conclusive0 2:

At an/ rate, even assuming that %e can still review this case on its merits, the petition will also have to

fail0

uring the hearing -efore the pro-ate court, not onl/ were three 74 close relatives of the testatri

presented -ut also two 72 epert witnesses who declared that the contested will and signature are in the

handwriting of the testatri0 These testimonies more than satisf/ the reGuirements of Art0 811 of the Civil

Code 21 in con*unction with 3ection 11 of Rule 56, Revised Rules of Court, 22 or the pro-ate of

holographic wills0

As regards the alleged antedating of the will, petitioner failed to present competent proof that the will was

actuall/ eecuted sometime in une 198: when the testatri was alread/ seriousl/ ill and d/ing of terminal

lung cancer0 3he relied onl/ on the supposed inconsistencies in the testimon/ of Asuncion >emperle,niece and constant companion of testatri, which upon careful eamination did not prove such claim of

antedating0

The factual findings of the pro-ate court and the Court of Appeals that the will in Guestion was eecuted

according to the formalities reGuired -/ law are conclusive on the 3upreme Court when supported -/

evidence0 24 %e have eamined the records of this case and find no error in the conclusion arrived at -/

the respondent court that the contested will was dul/ eecuted in accordance with law0

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Article 8;2 of the Civil Code provides that one who has no compulsor/ heirs ma/ dispose -/ will of all his

estate or an/ part of it in favor of an/ person having capacit/ to succeed0

"t is within the right of the testatri not to include her onl/ sister who is not a compulsor/ heir in her will0

@evertheless, per testimon/ of Asuncion >emperle, the latter had reserved two -oes of *ewelr/ worth

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The characteristics of spontaneit/, freedom and good line Gualit/ could not -e achieved -/ the testatri if

it was true that she was indeed of unsound mind andHor under undue influence or improper pressure

when she the %ill0

"@ "'% )( T&' ()R'>)"@> C)@3"'RAT")@3, the petition is '@"' for lac+ of merit with costs

against petitioner0 The decision of respondent court dated August 29, 1986 in toto the decision of the

Regional Trial Court of Manila dated March 21, 198# is here-/ declared to -e immediatel/ eecutor/0

3) )R'R'0

Art. 84 (ne 2ho has no 3o-ulsory heirs ay dis-ose by 2ill all of his estate

(3tober 11! 1"5

G.R. No. 574

&n re of +olores oronel! de3eased.

)(R%N( 0%'(N! a--li3ant,a--ellee!

vs.

AG/'#&N (R(N%)! %# A).! o--onents,a--ellants.

)n @ovem-er 28, 1922, the Court of (irst "nstance of

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The foregoing document was eecuted and declared -/ olores Coronel to -e her last will and testament

in our presence, and as the testatri does not +now how to write her name, she reGuested icente 0

(rancisco to sign her name under her epress direction in our presence, at the foot, and on the left

margin of each and ever/ sheet, hereof0 "n testimon/ whereof, each of us signed these presents in the

presence of others and of the testatri at the foot hereof and on the margin of each and ever/one of the

two sheets of which this document is composed, which are num-ered .one. and .two. on the upper part

of the face thereof0

73gd0 .MA!"M) 'R>ARA 3)T'R) MAA MARC)3 ' )3 3A@T)3

MAR"A@) 0 CR"3)3T)M) ongco, uana ituin, widow of the deceased &ipolito

Coronel, in her own -ehalf and that of her three children, >enerosa, Maria, and ose, all minors, Rosario

Coronel, Agustin Coronel, (ilomeno Coronel, Casimiro Coronel, Ale*o Coronel, Maria Coronel, 3everina

Coronel, 3erapia Coronel, Maria uana de )campo, widow of the deceased Manuel Coronel, ionisia

Coronel, and her hus-and unlao0

The pro-ate of this will is impugned on the following grounds$ 7a That the proof does not that the

document 'hi-it A a-ove copied contains the last will of olores Coronel, and 7- that the attestation

clause is not in accordance with the provisions of section 618 of the Code of Civil

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As to whether or not oreno

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73gd0 .))R'3 C)R)@'

%itnesses$

73gd0 .MAR"A@) 3@>A)

MARC)3 ' A CRI (RA@C"3C) MAA

3)T'R) MAA

MART"@ ""@A@.

The appellants find in the testament 'hi-it something to support their contention that the intention of

olores Coronel was to institute the said

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reGuested her attorne/, Mr0 (rancisco, to sign the will for her, which the attorne/ accordingl/ did in the

presence of the witnesses, who in turn signed it -efore the testatri and in the presence of each other0

pon the filing of the motion for a rehearing on the first order allowing the pro-ate of the will, the

opponents presented an affidavit of

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"t is said that the true will of olores Coronel not epressed in the will can -e inferred from the phrase

used -/ ose M0 Re/es in his deposition when spea+ing of the purpose for which oreno

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an/thing in the -ehavior of this law/er, relative to the preparation and eecution of the will, that would

*ustif/ an unfavora-le conclusion as to his personal and professional conduct, nor that he should har-or

an/ wrongful or fraudulent purpose0

%e find nothing censura-le in his conduct in advising olores Coronel to ma+e a new will other than the

last one, 'hi-it 7in the drawing of which he does not appear to her intervened, so that the instrument

might -e eecuted with all the new formalities reGuired -/ the laws then in force= nor in the preparation ofthe new will su-stantiall/ in accordance with the old one= nor in the selection of attesting witnesses who

were persons other than the relatives of olores Coronel0 Jnowing, as he did, that olores was ecluding

her -lood relatives from the inheritance, in spite of her having -een as+ed -/ him whether their eclusion

was due to a mere inadvertence, there is a satisfactor/ eplanation, compati-le with honora-le conduct,

wh/ said attorne/ should prescind from such relatives in the attesting of the will, to the end that no

o-stacle -e placed in the wa/ to the pro-ating thereof0

The fact that this attorne/ should presume that olores was to as+ him to sign the will for her and that he

should prepare it containing this detail is not in itself fraudulent0 There was in this case reason so to

presume, and it appears that he as+ed her, through

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The data furnished -/ the case do not show, to our mind, that olores Coronel should have had the

intention of giving her estate to her -lood relatives instead of to oreno

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foreign to the eecution of the will, which is completel/ useless and to no purpose in the case, or was it

for some useful, rational, necessar/ o-*ect, such as that of ma+ing it appear that the witnesses signed the

will each in the presence of the othersK The first theor/ presupposes that the one who drew the will, who

is Attorne/ (rancisco, was an unreasona-le man, which is an inadmissi-le h/pothesis, -eing repugnant to

the facts shown -/ the record0 The second theor/ is the most o-vious, logical and reasona-le under the

circumstances0 "t is true that the epression proved to -e deficient0 The deficienc/ ma/ have -een caused

-/ the drawer of the will or -/ the t/pist0 "f -/ the t/pist, then it must -e presumed to have -een merel/accidental0 "f -/ the drawer, it is eplaina-le ta+ing into account that 3panish is not onl/ not the native

language of the (ilipinos, who, in general, still spea+ until nowada/s their own dialects, -ut also that such

language is not even the onl/ official language since several /ears ago0

"n Re will of A-angan 7;: rammatical or clerical errors are not usuall/ considered of vital importance when the intention is

manifest in the will0

The court ma/ correct clerical mista+es in writing, and disregard technical rules of grammar as to the

construction of the language of the will when it -ecomes necessar/ for it to do so in order to effectuate the

testators manifest intention as ascertained from the contet of the will0 ut unless a different construction

is so reGuired the ordinar/ rules of grammar should -e adhered to in construing the will0 7;: C/c0, 1;:;0

And we understand that in the present case the interpretation we adopt is imperative, -eing the most

adeGuate and reasona-le0

The case of "n the matter of the estate of >eronima / CoGue 7;4

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As to the Guestion of whether or not the testatri and witnesses signed the document 'hi-it A in

accordance with the provisions of law on the matter, that is, whether or not the testatri signed the will, or

caused it to -e signed, in the presence of the witnesses, and the latter in turn signed in her presence and

that of each other, the court, after o-serving the demeanor of the witnesses for -oth parties, is of the

opinion that those for the petitioner spo+e the truth0 "t is neither pro-a-le nor li+el/ that a man versed in

the law, such as Attorne/ (rancisco, who was present at the eecution of the will in Guestion, and to

whose conscientiousness in the matter of compliance with all the etrinsic formalities of the eecution of awill, and to nothing else, was due the fact that the testatri had cancelled her former will 7'hi-it and

had new one 7'hi-it A prepared and eecuted, should have consented the omission of formalit/

compliance with which would have reGuired little or no effort= namel/, that of seeing to it that the testatri

and the attesting witnesses were all present when their respective signatures were affied to the will0. And

the record does not furnish us sufficient ground for deviating from the line reasoning and findings of the

trial *udge0

"n conclusion we hold that the assignments of error made -/ the appellants are not supported -/ the

evidence of record0

The *udgment appealed from if affirmed with costs against the appellants0 3o ordered0

G.R. No. 1" anuary 51!

(#A9&( '. *A)()%' &&! -etitioner!

vs.

0AA +% )(' R%:%' 0$&))&0'! res-ondent.

,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

G.R. No. 1555" anuary 51!

(#A9&( '. *A)()%' &&! -etitioner!vs.

(/R# (F A00%A)'! $(N. F%RNAN+( 9. G(R('0%! R.! in his (ffi3ial a-a3ity as 0residing

udge of R#,*a;ati!

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)n (e-ruar/ 16, 1996, udge (ernando 0 >orospe, r0 of RTCEMa+ati, ranch 61 issued an order

granting the petition and allowing the will0 The order reads$

)n :4 August 199#, the Court issued an )rder setting the hearing of the petition on 12 3eptem-er 199#,

at 8$4: o?cloc+ in the morning, copies of which were served to Arturo de 3antos (oundation, "nc0 and Ms0

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)n the other hand, private respondent

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"t is further noted that it is a matter of polic/ that consolidation of cases must -e approved -/ the

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"n cases for the pro-ate of wills, it is wellEsettled that the authorit/ of the court is limited to ascertaining the

etrinsic validit/ of the will, i0e0, whether the testator, -eing of sound mind, freel/ eecuted the will in

accordance with the formalities prescri-ed -/ law09

)rdinaril/, pro-ate proceedings are instituted onl/ after the death of the testator, so much so that, after

approving and allowing the will, the court proceeds to issue letters testamentar/ and settle the estate of

the testator0 The cases cited -/ petitioner are of such nature0 "n fact, in most *urisdictions, courts cannotentertain a petition for pro-ate of the will of a living testator under the principle of am-ulator/ nature of

wills01:

&owever, Art0 848 of the Civil Code authories the filing of a petition for pro-ate of the will filed -/ the

testator himself0 "t provides$

C"" C)', ART0 8480 @o will shall pass either real or personal propert/ unless it is proved and allowed

in accordance with the Rules of Court0

The testator himself ma/, during his lifetime, petition the court having *urisdiction for the allowance of his

will0 "n such case, the pertinent provisions of the Rules of Court for the allowance of wills after the

testator?s death shall govern0

The 3upreme Court shall formulate such additional Rules of Court as ma/ -e necessar/ for the allowance

of wills on petition of the testator0

3u-*ect to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his

death, shall -e conclusive as to its due eecution0

Rule 56, Q1 li+ewise provides$

3ec0 10 %ho ma/ petition for the allowance of will0 F An/ eecutor, devisee, or legatee named in a will, or

an/ other person interested in the estate, ma/, at an/ time after the death of the testator, petition the court

having *urisdiction to have the will allowed, whether the same -e in his possession or not, or is lost or

destro/ed0

The testator himself ma/, during his lifetime, petition in the court for the allowance of his will0

The rationale for allowing the pro-ate of wills during the lifetime of testator has -een eplained -/ the

Code Commission thus$

Most of the cases that reach the courts involve either the testamentar/ capacit/ of the testator or the

formalities adopted in the eecution of wills0 There are relativel/ few cases concerning the intrinsic validit/

of testamentar/ dispositions0 "t is far easier for the courts to determine the mental condition of a testator

during his lifetime than after his death0 (raud, intimidation and undue influence are minimied0

(urthermore, if a will does not compl/ with the reGuirements prescri-ed -/ law, the same ma/ -e

corrected at once0 The pro-ate during the testator?s life, therefore, will lessen the num-er of contest uponwills0 )nce a will is pro-ated during the lifetime of the testator, the onl/ Guestions that ma/ remain for the

courts to decide after the testator?s death will refer to the intrinsic validit/ of the testamentar/ dispositions0

"t is possi-le, of course, that even when the testator himself as+s for the allowance of the will, he ma/ -e

acting under duress or undue influence, -ut these are rare cases0

After a will has -een pro-ated during the lifetime of the testator, it does not necessaril/ mean that he

cannot alter or revo+e the same -efore his death0 3hould he ma+e a new will, it would also -e allowa-le

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on his petition, and if he should die -efore he has had a chance to present such petition, the ordinar/

pro-ate proceeding after the testator?s death would -e in order011

Thus, after the allowance of the will of r0 e 3antos on (e-ruar/ 16, 1996, there was nothing else for

ranch 61 to do ecept to issue a certificate of allowance of the will pursuant to Rule 54, Q12 of the Rules

of Court0 There is, therefore, no -asis for the ruling of udge A-ad 3antos of ranch 6# of RTCEMa+ati

that F

ranch 61 of the Regional Trial Court of Ma+ati having -egun the pro-ate proceedings of the estate of the

deceased, it continues and shall continue to eercise said *urisdiction to the eclusion of all others0 "t

should -e noted that pro-ate proceedings do not cease upon the allowance or disallowance of a will -ut

continues up to such time that the entire estate of the testator had -een partitioned and distri-uted0

The fact that the will was allowed during the lifetime of the testator meant merel/ that the partition and

distri-ution of the estate was to -e suspended until the latter?s death0 "n other words, the petitioner,

instead of filing a new petition for the issuance of letters testamentar/, should have simpl/ filed a

manifestation for the same purpose in the pro-ate court012

arcia (ule v0 Court of Appeals, it was held$14

The aforeGuoted 3ection 1, Rule 54 7formerl/ Rule 5#, 3ection 1, specificall/ the clause .so far as it

depends on the place of residence of the decedent, or of the location of the state,. is in realit/ a matter of

venue, as the caption of the Rule indicates$ .3ettlement of 'state of eceased

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courts under 0

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nder this provision, it has -een held that an .interested person. is one who would -e -enefited -/ the

estate, such as an heir, or one who has a claim against the estate, such as a creditor, and whose interest

is material and direct, not merel/ incidental or contingent015

'ven if petitioner is the nearest net of +in of r0 e 3antos, he cannot -e considered an .heir. of the

testator0 "t is a fundamental rule of testamentar/ succession that one who has no compulsor/ or forced

heirs ma/ dispose of his entire estate -/ will0 Thus, Art0 8;2 of the Civil Code provides$

)ne who has no compulsor/ heirs ma/ dispose -/ will of all his estate or an/ part of it in favor of an/

person having capacit/ to succeed0

)ne who has compulsor/ heirs ma/ dispose of his estate provided he does not contravene the provisions

of this Code with regard to the legitimate of said heirs0

Compulsor/ heirs are limited to the testator?s F

71 egitimate children and descendants, with respect to their legitimate parents and ascendants=

72 "n default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children

and descendants=

74 The widow or widower=

7; Ac+nowledged natural children, and natural children -/ legal fiction=

7# )ther illegitimate children referred to in Article 285 of the Civil Code018

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)n the other hand, the petition for issuance of letters testamentar/ was filed -/ private respondent, as

eecutor of the estate of r0 e 3antos, for the purpose of securing authorit/ from the Court to administer

the estate and put into effect the will of the testator0 The estate settlement proceedings commenced -/

the filing of the petition terminates upon the distri-ution and deliver/ of the legacies and devises to the

persons named in the will0 Clearl/, there is no identit/ -etween the two petitions, nor was the latter filed

during the pendenc/ of the former0 There was, conseGuentl/, no forum shopping0

%&'R'()R', the petition is '@"' and the decisions of the Court of Appeals are here-/ A(("RM'0

3) )R'R'0

Art. 844 %rror in naes and surnaes

*ay 1"! 1"5

G.R. No. 17

RA*(N +%) R('AR&(! -laintiff,a--ellee!

vs.

)%*%N#% +%) R('AR&(! defendant,a--ellant.

"0 on @icolas del Rosario died in this cit/ on ul/ 1;, 1895, leaving a last will, the eighth, ninth, eleventh,

and eighteenth clauses of which are as follows$

'ight0 The testator declares that the #,::: pesos which he -rought to his marriage he here-/ -eGueathes

to his nephew 'nriGue >loria / Rosario and Ramon del Rosario, natural children of his -rother Clemente

del Rosario, notwithstanding the fact that the/ purport to -e the issue of the marriage of 'scolastico

>loria and Rosendo del Rosario, successivel/0

@inth0 The testator declares that the said sum of #,::: pesos is to -e divided, 4,::: pesos for the first

named and 2,::: pesos for the second named, the deliver/ of the said sums to -e effected -/ the wife ofthe testator, provided that these /oung men -ehave themselves as the/ have done up to the present time,

and do not cease to stud/ until ta+ing the degree of -achelor of arts, and then ta+e a -usiness course, if

their health will permit, their support to -e paid out of the testamentar/ estate and the/ to live in the house

of the widow0

'leventh0 The testator declares that in a case the said /oung men should -e still engaged in stud/ at the

time of the death of the testator?s wife, the/ shall continue to -e supported at the epense of the

testamentar/ estate, without deducting such epenses from their legacies, if the/ should desire to

continue the same studies0

'ighteenth0 The testator further states that although his wife is at the present time fift/Efive /ears of age,

and conseGuentl/ is not li+el/ to marr/ again, as she herself sa/s, nevertheless it is impossi-le that theopposite of what she asserts might occur, and, if so, then it is to -e regarded as sufficient reason to

authorie the /oung men Ramon and 'nriGue, so often referred to, separate from their aunt, in which

event the/ are to -e supported -/ the testamentar/ estate on a small allowance of twent/Efive pesos per

month, provided that the/ continue their studies or should -e in poor health, this without in an/ respect

reducing the amount of their shares0

on Ramon del Rosario, one of the persons mentioned in these clauses, -rought this action in 19:2

against on Clemente del Rosario, the then eecutor, as+ing, among other things, that the said eecutor

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pa/ him an allowance from the death of the widow of the testator at the rate of 5# pesos a month, and

that the eecutor allow him to live in the house in which the widow was living at that time0

The widow of the testator, oa &onorata alde, died on ul/ 5, 19::0

The court -elow ordered *udgment in respect to this allowance, and the right to live in the house as

pra/ed for -/ the plaintiff0 "n this we thin+ that the court erred0

%hile -/ the eight clause the support of the plaintiff and of on 'nriGue >loria is charged against the

estate, /et the eleventh clause ma+es it plain that this unconditional right was to last onl/ during the

lifetime of the widow0 After her death the right to this allowance is made to depend on the continuance of

their studies0 That this is the correct construction of the will is made more plain -/ the eighteenth clause

a-ove Guoted0 "n the case of their separation from their aunt -/ her remarriage, the/ were entitled to the

specified allowance of 2# pesos a month onl/ on condition that the/ were pursuing their studies or were in

poor health0

The court did not find that the plaintiff was still pursuing his studies0 )n the contrar/, he found that the

plaintiff had fulfilled the condition -/ o-taining the degree of -achelor of arts in 18980

The right to live in the house of the widow terminated at her death0

""0 The seventh clause of the will of on @icolas is as follows$

3eventh0 The testator states that in the present condition of his affairs he has acGuired, during his married

life, some tens of thousands of dollars, of which oneEhalf -elongs to his wife as her share of the profits of

the con*ugal partnership, and the other half -elongs to him as his share of such profits= -ut, in view of the

agreement entered into -etween the two spouses, the propert/ will not -e partitioned, and upon the death

of the testator all the said propert/ will pass to his wife, in order that she ma/ en*o/ the revenue therefrom

during her lifetime, -ut without authorit/ to conve/ an/ of such propert/, inasmuch as she, -eing grateful

for the -enefit resulting to her, -inds herself in turn to deliver said propert/ at her death to the testator?s

-rothers, on Clemente del Rosario and on Rosendo del Rosario, and his sister, oa uisa del

Rosario, who shall en*o/ the revenue from the said propert/ during their respective lives, and shall then,in turn, transmit the same to their male children, -oth those -orn in wedloc+ and natural children who ma/

-e +nown0

This was later modified -/ a codicil, as follows$

That in seventh clause of said testament he desires and wills that in the distri-ution of his propert/ and

that of his wife among the male children of his -rothers, Clemente and Rosendo del Rosario, and those of

his sister, uisa del Rosario, in such distri-ution his nephews 'nriGue >loria and Ramon del Rosario must

-e understood to -e included, in addition to the legacies mentioned in his said testament0

The thirteenth clause of his will was as follows$

The testator declares that in case oa uisa del Rosario should die -efore or after the wife of the

testator, then the legac/ due her -/ virtue of this will shall not pass in its entiret/ to her male children,

ecept as to the sum of 1,::: pesos, the remainder to pass to on 'nriGue >loria Rosario and on

Ramon del Rosario, natural sons of on Clemente del Rosario, as alread/ stated0

This was modified -/ the codicil as follows$

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That in the thirteenth clause the testator provided that upon the death of his sister, uisa del Rosario, her

male children were to inherit from her up to the sum of 1,::: pesos, and this he rectifies, for -etter

understanding, to the effect that it is his will that the remainder of all her portion should -e divided into

eGual parts, oneEthird to go to his -rother on Clemente del Rosario and the other twoEthirds to -e divided

eGuall/ among his said nephews, 'nriGue >loria and Ramon del Rosario0

oa &onorata alde made her will three da/s after that of her hus-and0 The seventh clause is asfollows$

The testatri declares that she institutes her -eloved hus-and, on @icolas del Rosario / Ale*o, as her

heir to all the propert/ which she ma/ have at her death, and in the unepected case of the death of her

said hus-and then she institute as heirs her -rothersEinElaw, on Rosendo and on Clemente del Rosario

/ Ale*o, and her sisterEinElaw, oa uisa del Rosario, who shall en*o/ the usufruct during their lifetime of

all the revenue of the said propert/0 pon the death of an/ of them, the propert/ shall pass to the male

children of her said -rothersEinElaw and sisterEinElaw, the issue of lawful marriage or natural children who

ma/ -e +nown= that upon the death of her sisterEinElaw, oa uisa, then her share shall not pass in its

entiret/ to her male children, ecept the sum of 1,::: pesos, 'nriGue >loria and on Ramon del Rosario,

natural children of her -rotherEinElaw on Clemente del Rosario0

oa uisa died one /ea after on @icolas and two /ears -efore the death of oa &onorata, which, as

has -een said, occurred on ul/, 5, 19::0

on 'nriGue >loria died on ul/ 6, 19::0

on Ramon del Rosario claims in this action that he is now entitled, -/ virtue of -oth wills, to a certain

part of the share of the estates left to said oa uisa during her life, and he as+s that the defendant -e

directed to render accounts and to proceed to the partition of the said estates0 The controvers/ -etween

the parties upon this -ranch of the case is as follows$

The defendant claims that the plaintiff is entitled to nothing under the wills, -ecause the gift to him was

conditional, the condition -eing that he should -e the natural son of on Clemente, recognied -/ the

latter as such in one of the wa/s pointed out -/ the Civil Code= that he can not prove such recognition, theparol evidence presented at the trial -eing prohi-ited -/ said Code, and that he has therefore not

complied with the condition0

The plaintiff claims that such evidence was proper, that -oth wills state that on Ramon del Rosario is the

natural son of on Clemente, and that in an/ event the -eGuests are made to the plaintiff -/ name0

The court -elow, holding the parol evidence immaterial, ordered *udgment for the plaintiff as pra/ed for0

71 3o far as the disposition of that part of the inheritance left in the aunt?s will to oa uisa for life is

concerned, the Guestion is free from dou-t0 "t is distinctl/ declared that Ramon del Rosario and 'nriGue

>loria shall ta+e certain parts of it after 1,::: pesos have -een deducted0 The/ are pointed out -/ name

as the legatees0 "t is true that the/ are called the natural sons of on Clemente0 ut this is merel/ afurther description of persons alread/ well identified, and, if false, can -e re*ected in accordance with the

provision of article 554 of the Civil Code, which -/ article 589 is applica-le to legatees0

72 The ninth clause of the will of oa &onorata is as follows$

The testatri -eGueaths the sum of 4,::: pesos to her nephews 'nriGue >loria and Ramon del Rosario in

eGual parts F that is, 1,#:: pesos each0

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The plaintiff was entitled to oneEhalf of this legac/ in his own right0 This has -een paid to him0 on

'nriGue >loria died -efore his the testatri0 / the provisions of articles 982 and 984 of the Civil Code the

right of accretion eists as to the other half in favor of the plaintiff and he is entitled to have it paid to him0

74 The will of oa &onorata plainl/ declares that, on the death of an/ one of the life tenants, the male

children of such tenant shall inherit, and in respect to oa uisa it is epressl/ declared that this shall

ta+e place whether she dies -efore or after the testatri0 The derecho de acrecer did not therefore eist infavor of the other two life tenants, on Clemente and on Rosendo0 .'n la sucesion testada es le/

preferente la voluntad del testador, de modo Gue este prohi-iendo epresamente el derecho de acrecer,

nom-rando sustitutos, o marcando el destino especial de cada porcion vacante, eclu/e la aplicacion de

los articulos Gue vamos a eaminar0. 75 Manresa, Comentarios al Codigo Civil, p0 2560

This right does, however, eist in the share of oa uisa in favor of the plaintiff, for the reasons stated in

connection with the legac/ of 4,::: pesos0

7; %e have passed upon the rights of the plaintiff to the share of oa uis under the will of oa

&onorata, -ecause the interest is epressl/ left to him 7en concepto de legado as a legac/0 This is

controlling0 7# Manresa, 41#0

These or eGuivalent words are wanting in the will of on @icolas0 Appl/ing article 668 of the Civil Code,

we must hold that an/ interest which the plaintiff ma/ have ta+en in the share of oa uisa under the will

of on @icolas he too+ as an heir and not as a legatee0

The distinction -etween the two is constantl/ maintained throughout the Code, and their rights and

o-ligations differ materiall/0 7Arts0 66:, 668, 568, 59:, 8#8, 891, 1::40

7# The legatee can demand his legac/ from the heir or from the eecutor, when the latter is authoried to

give it0 7Art0 88#0 The powers given to the eecutors -/ the will of oa &onorata are contained in the

fourteenth clause, which is as follows$

The testatri appoints as the eecutors of her will, in the first place, her -eloved hus-and, @icolas del

Rosario / Ale*o, in the second place her -rotherEinElaw Clemente del Rosario, in the third place her-rotherEinElaw Rosendo del Rosario, in the fourth place on Ramon del Rosario when he shall attain his

ma*orit/, all of them without -ond and free from the o-ligation of terminating the administration within the

legal term0 At her death the/ shall ta+e possession of all such goods and things as ma/ -e her propert/,

and are here-/ authoried full/ and as reGuired -/ law to prepare an inventor/ of said propert/, and to

effect the division and partition of the estate among her heirs0 3he also authories them to eecute and

sign deeds of partition, sales with a resolutor/ condition, cancellations, receipts, acGuittances, and such

other documents as ma/ -e necessar/0

The twent/Efirst clause of the will of on @icolas is su-stantiall/ the same0 'ach will prohi-ited an/ *udicial

intervention in the settlement of the estates0

The clause in the will of oa &onorata which is a cop/ of that in the will of on @icolas is as follows$

The testatri declares that she epressl/ prohi-its an/ *udicial intervention in this her will, although

minors, a-sentees, or persons under disa-ilit/ -e interested therein, as it is her wish and will that all the

proceedings -e conducted etra*udiciall/, and in case a famil/ council should -e necessar/, she

designates the persons who, in accordance with the provisions of the Civil Code now in force, should form

such council, or else leaves their appointment to the discretion of her eecutors0

"f the eecutor was not authoried to pa/ these legacies, the heirs must pa/ them0

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The life tenants and the heirs who ta+e the remainder under these wills are numerous0 "f the/ did not pa/

the legacies and did not agree upon an administrator, *udicial intervention would -e necessar/, the ver/

thing which the testators had epressl/ prohi-ited0 The important power of ma+ing the partition was

attempted to -e given to the eecutors0 "n view of these considerations and a stud/ of the whole will, we

hold that the eecutors are given power to pa/ the legacies0

The action, therefore, was properl/ directed against the eecutor so far as it related to the allowance and

the legac/ of 4,::: pesos0 As to these legacies, the action ma/ -e supported also under article 9:2, 2,

which allows eecutors to pa/ mone/ legacies0

"t was also properl/ directed against him, so far as it related to the share to which the plaintiff is entitled

under the will ofoa &onorata in the portion to oa uisa for life0

The provisions of articles 1:2#E1:25 are no o-stacle to this suit0 That an inventor/ is -eing formed, or that

the creditors have not -een paid, is a matter of defense which should have -een set up in the answer0

"t was not properl/ directed against him in so far as it related to the similar share left to him -/ the will of

on @icolas0 &e too+ that as heir and not a legatee, and the heir can maintain no such action against the

eecutor0

The fact that the plaintiff under the will of oa &onorata is a legatee of an aliGuot part of the estate,

having -ecome entitled to receive oneEthird of it on the death of oa uisa, does not prevent him from

maintaining this action against the eecutor0 Though such a legatee closel/ resem-les an heir, /et, li+e all

other legatees, he must see+ his share from the heir or eecutor0 76 Manresa, #610

76 %hile in this action he has a right to have his interest as legatee declared, /et it can not -e delivered

to him without a partition of the estate0

"t remains to -e considered whether the eecutor has power to ma+e the partition0 3uch power is

epressl/ given -/ the will0 This provision is, however, void under the terms of article 1:#5 of the Civil

Code, which is as follows$

The testator ma/, -/ an act inter vivos or causa mortis, intrust the mere power of ma+ing the division after

his death to an/ person who is not one of the coheirs0

The provisions of this and the foregoing articles shall -e o-served even should there -e a minor or a

person su-*ect to guardianship among the coheirs= -ut the trustee must in such case ma+e an inventor/

of the propert/ of the inheritance, citing the coheirs, the creditors, and the legatees0

on Clemente, the eecutor, against whom the action was directed, was not onl/ an heir as a life tenant

-ut also in the fee after his death of on Rosendo if the latter died without issue0 pon the death of the

widow, oa uisa then -eing dead, it -ecame his dut/ to divide the estate into three parts, or at least to

set off the third, which was to pass to the plaintiff -/ the death of the widow and oa uisa0 "n thispartition he was directl/ interested, for, with his -rother on Rosendo, he had a life interest in the part of

the estate not set off to the plaintiff0 Article 1:#5 prohi-ited an heir from -eing contador for this ver/

reason, namel/, that the partition should -e made impartiall/0

Although the eecutor has no power to ma+e the partition, the heirs can do so0 Arts0 1:#8E1:6:, Civil

Code0

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The plaintiff is not -ound to remain a coEowner with the other heirs0 eing a legatee of an aliGout part, he

has the same right to see+ a partition that an heir has0 75 Manresa, #58= art0 1:#1, Codigo Civil0 ut in so

see+ing it he must ma+e parties to his suit all persons interested in the estate 75 Manresa, #550 This he

has not done in this suit, and he conseGuentl/ is not entitled to the partition ordered -/ the court -elow0

75 %e have held that the onl/ thing that can -e decided in this case is the rights of the plaintiff as

legatee0

The court -elow ordered the eecutor to render accounts of his administration of -oth estates0

As to the estate of on @icolas, the onl/ thing here in Guestion is the right to the allowance0 As we hold

that the plaintiff is not entitled to it, he is not entitled to an/ statement of accounts as such pretended

legatee0

As to the estate of oa &onorata, he is entitled to -e paid a legac/ of 1,#:: pesos0 Article 9:5 reGuires

the eecutor to render accounts to the heir, not to the legatee= and although -/ article 589 all of the

provisions of Chapter "" 7in which -oth articles are found relating to heirs are made applica-le to

legatees, we can not hold that this reGuires an eecutor to su-mit his accounts to one who has no interest

in the estate ecept to a mone/ legac/ when there is no suggestion that it will not -e paid when the right

to it is esta-lished0

"n respect to the share of oa uisa, there is reason for sa/ing that a legatee on an aliGuot part is

entitled to an accounting0 ut, inasmuch as in this case there can -e no final determination of the rights of

the parties interested in the estate, -ecause the/ are not all parties to this suit, the eecutor should not in

this suit -e ordered to su-mit his accounts0

78 The plaintiff in his complaint has limited himself to claiming the allowance, his rights to the share of

oa uisa, and the legacies left to him0

The Guestion as to whether he would -e entitled to an/ part of the share of on Clemente upon the

latter?s death, under the seventh clause of the two wills, was not presented -/ the complaint nor passed

upon -/ the court and is not -efore us for decision0

79 The result of the foregoing considerations is$

10 The plaintiff is not entitled to an/ allowance under either will0

20 &e is not entitled to live in the house @o0 128 Calle Clavel0

40 &e is entitled to -e paid, under the ninth clause of the will of oa &onorata, the sum of 1,#:: pesos,

in addition to the 1,#:: pesos alread/ received under that clause0

;0 &e is entitled to the share of the estate left -/ the will of oa &onorata to oa uisa during her life,after deducting 1,::: pesos0

#0 This share can not -e set off to him in this suit, -ut onl/ in a proceeding to which all persons interested

in the estate are parties0

60 &is interest in the share left to oa uis during her life -/ the will of on @icolas can not -e

determined in this suit0

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50 The eecutor can not -e reGuired to render in this suit his accounts as such eecutor0

80 The plaintiff?s rights under the seventh clause of the two wills, to the share left to on Clemente for life

are not -efore us for decision0

"""0 After *udgment had -een rendered in the court -elow and a -ill of eceptions allowed, -ut -efore the

record had -een sent to this court, on Clemente del Rosario, the defendant, died0 After his death onRosendo del Rosario, who was named in -oth wills to succeed to the eecutorship on the death of on

Clemente, appeared in the court -elow and withdrew the appeal and -ill of eceptions0 Thereupon the

widow of on Clemente, for herself and in representation of the minor son of her late hus-and, as+ed and

was granted leave to prosecute the appeal0

This ruling was correct0 According to the 3panish authorities, an/one legall/ affected -/ the *udgment

might appeal0 According to the American authorities, if a trustee refuses to appeal, the -eneficiar/ ma/ do

so in his name0

That the son of on Clemente has a direct interest in the Guestion of the allowance of 5# pesos a month

to the plaintiff is plain0 %e have held that in respect to this allowance the eecutor represents the estate

and the *udgment against him -inds it0

"t would -e manifestl/ un*ust to allow an eecutor, with perhaps onl/ a slight personal interest in an

estate, -/ withdrawing an appeal, to fasten upon the estate a claim which, as we hold, it should not -ear0

"0 At the argument of this case on the merits, after the appellant had closed, the respondent made the

point for the first time that the appellant?s -rief contained no assignment of errors0

This is true0 ut a full assignment of errors is found in the -ill of eceptions at pages 1; and 1#0 The

appellee answered the -rief of the appellant without ma+ing an/ suggestion of this mista+e0 &e has -een

in no wa/ pre*udiced -/ it, and we can not affirm the *udgment on this ground0

The *udgment of the court -elow is reversed and the case remanded with directions to the court -elow to

enter *udgment in accordance with this opinion0 The costs of this instance will -e eGuall/ divided -etweenthe parties0 3o ordered0

Art. 8 'tateent of False ause for &nstitution

G.R. No. ),57" February 7! 1"7

R/al! 0%RF%#( R/!

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The -ul+ of the estate of asilia, admittedl/, was destined under the will to pass on to the respondents

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The uncontested premises are clear0 Two interests are loc+ed in dispute over the -ul+ of the estate of the

deceased0 Arra/ed on one side are the petitioners Ru-en Austria, Consuelo AustriaEenta and auro

Austria Moo, three of a num-er of nephews and nieces who are concededl/ the nearest surviving -lood

relatives of the decedent0 )n the other side are the respondents -rothers and sisters,

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Jung a+o a/ -awian ng ios ng -uha/, a/ a+ing ipinamamana ang a+ing mga ariEariang maiiwan, sa

+aparaanang sumusunod$

A0FA+ing ipinamamana sa a+ing na-anggit na limang ana+ na sina

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language of the law on succession and were used, respectivel/, to descri-e the class of heirs instituted

and the a-stract o-*ect of the inheritance0 The/ offer no a-solute indication that the decedent would have

willed her estate other than the wa/ she did if she had +nown that she was not -ound -/ law to ma+e

allowance for legitimes0 &er disposition of the free portion of her estate 7li-re disposicion which largel/

favored the respondent B, the present petition is denied, at petitioners cost0

Art. 84 0reterition

anuary ! 1"67

G.R. No. ),17818

#&R'( #. R%:%'! as guardian of the inors A>u3ena Flordelis and #irso! r.! all surnaed Reyes y

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vs.

)/&A *&)AGR(' erardo0 uring their lifetime the/ acGuired a vast

estate, consisting of real properties in Manila, erardoU "W the meantimeX Maria >erardo was appointe

administratri0 / virtue thereof, she prepared a pro*ect of partition, which was signed -/ her in her own

-ehalf and as guardian of the minor Milagros arretto0 3aid pro*ect of partition was approved -/ the Court

of (irst "nstance of Manila on @ovem-er 22, 19490 The distri-ution of the estate and the deliver/ of the

shares of the heirs followed forthwith0 As a conseGuence, 3alud arretto too+ immediate possession of

her share and secured the cancellation of the original certificates of title and the issuance of new titles in

her own name0

'ver/thing went well since then0 @o-od/ was heard to complain of an/ irregularit/ in the distri-ution of the

said estate until the widow, Maria >erardo died on March #, 19;80 pon her death, it was discovered that

she had eecuted two wills, in the first of which, she instituted 3alud and Milagros, -oth surnamed

arretto, as her heirs= and, in the second, she revo+ed the same and left all her properties in favor of

Milagros arretto alone0 Thus, the later will was allowed and the first re*ected0 "n re*ecting the first will

presented -/ Tirso Re/es, as guardian of the children of 3alud arretto, the lower court held that 3alud

was not the daughter of the decedent Maria >erardo -/ her hus-and i-iano arretto0 This ruling was

appealed to the 3upreme Court, which affirmed the same0OO1PP

&aving thus lost this fight for a share in the estate of Maria >erardo, as a legitimate heir of Maria >erardo,

plaintiff now falls -ac+ upon the remnant of the estate of the deceased i-iano arretto, which was givenin usufruct to his widow Maria >erardo0 &ence, this action for the recover/ of oneEhalf portion, thereof0

This action afforded the defendant an opportunit/ to set up her right of ownership, not onl/ of the fishpond

under litigation, -ut of all the other properties willed and delivered to 3alud arretto, for -eing a spurious

heir, and not entitled to an/ share in the estate of i-iano arretto, there-/ directl/ attac+ing the validit/,

not onl/ of the pro*ect of partition, -ut of the decision of the court -ased thereon as well0

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The defendant contends that the

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At an/ rate, independentl/ of a pro*ect of partition which, as its own name implies, is merel/ a proposal for

distri-ution of the estate, that the court ma/ accept or re*ect, it is the court alone that ma+es the

distri-ution of the estate and determines the persons entitled thereto and the parts to which each is

entitled 7Camia vs0 Re/es, 64

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Roman Catholic ishop of @ueva Caceres, ;#

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the oral assertions of Milagros herself and her counsel0 "n fact, the trial court made no mention of such

promise in the decision under appeal0 'ven more$ granting arguendo that the promise was made, the

same can not -ind the wards, the minor children of 3alud, who are the real parties in interest0 An

a-dicative waiver of rights -/ a guardian, -eing an act of disposition, and not of administration, can not

-ind his wards, -eing null and void as to them unless dul/ authoried -/ the proper court 7edesma

&ermanos vs0 Castro, ## arcia appealed from the order of approval, and this Court, on anuar/41, 1964, reversed the same on the ground that the validit/ of the provisions of the will should -e

governed -/ 0R0 @o0 E165;90

)n )cto-er 29, 196;, the Court of (irst "nstance of avao issued an order approving the pro*ect of

partition su-mitted -/ the eecutor, dated une 4:, 196;, wherein the properties of the estate were

divided eGuall/ -etween Maria uc/ Christensen uncan 7named in the will as Maria uc/ Christensen

ane/, and hereinafter referred to as merel/ uc/ uncan, whom the testator had epressl/ recognied

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in his will as his daughter 7natural and &elen >arcia, who had -een *udiciall/ declared as such after his

death0 The said order was -ased on the proposition that since &elen >arcia had -een preterited in the will

the institution of uc/ uncan as heir was annulled, and hence the properties passed to -oth of them as if

the deceased had died intestate, saving onl/ the legacies left in favor of certain other persons, which

legacies have -een dul/ approved -/ the lower court and distri-uted to the legatees0

The case is once more -efore us on appeal, this time -/ uc/ uncan, on the sole Guestion of whetherthe estate, after deducting the legacies, should pertain to her and to &elen >arcia in eGual shares, or

whether the inheritance of uc/ uncan as instituted heir should -e merel/ reduced to the etent

necessar/ to cover the legitime of &elen >arcia, eGuivalent to 1H; of the entire estate0

The will of 'dward '0 Christensen contains, among others, the following clauses which are pertinent to

the issue in this case$

40 " declare 000 that " have -ut )@' 71 child, named MAR"A CB C&R"3T'@3'@ 7@ow Mrs0 ernard

ane/, who was -orn in the arcia,

a-out eighteen /ears of age and who, notwithstanding the fact that she was -aptied Christensen, is not

in an/ wa/ related to me, nor has she -een at an/ time adopted -/ me, and who, from all information "

have now resides in 'gpit, igos, avao,

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decease, then, and in that event, the share of m/ estate devised to her herein " give, devise and -eGueath

to her children, 'lia-eth orton de Trevio, of Meico Cit/ Meico= ar-ara orton arcia, a

compulsor/ heir in the direct line, resulting in the annulment of the institution of heir pursuant to Article8#; of the Civil Code, which provides$

ART0 8#;0 The preterition or omission of one, some, or all of the compulsor/ heirs in the direct line,

whether living at the time of the eecution of the will or -orn after the death of the testator, shall annul the

institution of heir= -ut the devises and legacies shall -e valid insofar as the/ are not inofficious0

)n the other hand, appellant contends that this is not a case of preterition, -ut is governed -/ Article 9:6

of the Civil Code, which sa/s$ .An/ compulsor/ heir to whom the testator has left -/ an/ title less than the

legitime -elonging to him ma/ demand that the same -e full/ satisfied0. Appellant also suggests that

considering the provisions of the will where-/ the testator epressl/ denied his relationship with &elen

>arcia, -ut left to her a legac/ nevertheless although less than the amount of her legitime, she was in

effect defectivel/ disinherited within the meaning of Article 918, which reads$

ART0 9180 isinheritance 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 ma/ pre*udice the person disinherited= -ut the devices and legacies and other

testamentar/ dispositions shall -e valid to such etent as will not impair the legitimate0

Thus, according to appellant, under -oth Article 9:6 and 918, &elen >arcia is entitled onl/ to her legitime,

and not to a share of the estate eGual that of uc/ uncan as if the succession were intestate0

Article 8#; is a reproduction of Article 81; of the 3panish Civil Code= and Article 9:6 of Article 81#0

Commenting on Article 81#, Manresa eplains$

Como dice >o/ena, en el caso de pretericion puede presumirse ignorancia o falta de memoria en eltestador= en el de de*ar algo al heredero foroso no0 'ste no se encuentra plivado totalmente de su

legitima$ ha reci-ido por cualGuir titulo una porcion de los -ienes hereditarios, porcion Gue no alcana a

completar la legitima, pero Gue influe/e poderosamente en el animo del legislador para decidirle a

adoptar una solucion -ien diferente de la sealada para el caso de pretericion0

'l testador no ha olvidado por completo al heredero foroso= le ha de*ado -ienes= pero haciendo un

calculo eGuivocado, ha repartido en favor de etraos o en favor de otros legitimarios por via de legado

donacion o me*ora ma/or cantidad de la Gue la le/ de consentia disponer0 'l heredero foroso no puede

perder su legitima, pero tampoco puede pedir mas Gue la misma0 e aGui su derecho a reclamar

solamente lo Gue le falta= al complemento de la porcion Gue forosamente la corresponde0

000 e*ar el testador por cualGuier titulo, eGuivale a disponer en testamento por titulo de herencia legado ome*ora, / en favor de legitimarios, de alguna cantidad o porcion de -ienes menos Gue la legitima o igual a

la misma0 Tal sentido, Gue es el mas proprio en al articulo 81#, no pugna tampoco con la doctrina de la

le/0 Cuando en el testamento se de*a algo al heredero foroso, la pretericion es incompleta$ es mas

formularia Gue real0 Cuando en el testamento nada se de*a el legitimario, ha/ verdadera pretericion0 76

Manresa, 5th 'd0, 19#1, p0 ;450

)n the difference -etween preterition of a compulsor/ heir and the right to as+ for completion of his

legitime, 3anche Roman sa/s$

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a desheredacion, como epresa, es siempre voluntaria= la pretericion puede serlo pero se presume

involuntaria la omision en Gue consiste en cuanto olvida o no atiende el testador en su testamento a la

satisfaccion del derecho a la legitima del heredero foroso preterido, prescindiendo a-soluta / totalmente

de el / no mencionandole en ninguna de sus disposiciones testamentarias, o no institu/endole en parte

alguna de la herencia, ni por titulo de heredero ni por el de legatar o aunGue le mencionara o nom-rara

sin de*arle mas o menos -ienes0 3i le de*ara algunos, por pocos Gue sean e insuficientes para cu-rir sulegitima, /a no seria caso de pretericion, sino de complemento de aGuella0 'l primer supuesto o de

pretericion se regula por el articulo 81;, / produce accion de nulidad de la institucion de heredero= / el

segundo, o de complemento de legitima por el 81# / solo original la accion ad suplementum, para

completar la legitima0 73anche Roman, Tomo ", ol0 2, p0 11410

Manresa defines preterition as the omission of the heir in the will, either -/ not naming him at all or, while

mentioning him as father, son, etc0, -/ not instituting him as heir without disinheriting him epressl/, nor

assigning to him some part of the properties0 Manresa continues$

3e necesita pues 7a Due la omision se refiera a un heredero foroso= 7- Due la omision sea completa=

Gue el heredero foroso nada reci-a en el testamento0

0 Due la omision sea completa F 'sta condicion se deduce del mismo Articulo 81; / resulta con

evidencia al relacionar este articulo con el 81#0 'l heredero foroso a Guien el testador de*a algo por

cualGuier titulo en su testamento, no se halla propiamente omitido pues se le nom-ra / se le reconoce

participacion en los -ienes hereditarios0

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pertinent -ecause in the will of the deceased 'dward '0 Christensen &elen >arcia is not mentioned as an

heir F indeed her status as such is denied F -ut is given a legac/ of arcia as his natural daughter, and limited her share to a legac/ of

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to &elen >arcia as her legitime0 3ince she -ecame the owner of her share as of the moment of the death

of the decedent 7Arts0 55;, 555, Civil Code, she is entitled to a corresponding portion of all the fruits or

increments thereof su-seGuentl/ accruing0 These include the stoc+ dividends on the corporate holdings0

The contention of uc/ uncan that all such dividends pertain to her according to the terms of the will

cannot -e sustained, for it would in effect impair the right of ownership of &elen >arcia with respect to her

legitime0

)ne point deserves to -e here mentioned, although no reference to it has -een made in the -rief for

oppositorEappellant0 "t is the institution of su-stitute heirs to the estate -eGueathed to uc/ uncan in the

event she should die without living issue0 This su-stitution results in effect from the fact that under

paragraph 12 of the will she is entitled onl/ 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 propert/ will

go to the other relatives of the testator named in the will0 %ithout deciding this, point, since it is not one of

the issues raised -efore us, we might call attention to the limitations imposed -/ law upon this +ind of

su-stitution, particularl/ that which sa/s that it can never -urden the legitime 7Art0 86; Civil Code, which

means that the legitime must descend to the heir concerned in fee simple0

%herefore, the order of the trial court dated )cto-er 29, 196;, approving the pro*ect of partition as

su-mitted -/ the eecutorEappellee, is here-/ set aside= and the case is remanded with instructions to

partition the hereditar/ estate anew as indicated in this decision, that is, -/ giving to oppositorEappellee

Maria &elen Christensen >arcia no more than the portion corresponding to her as legitime, eGuivalent to

oneEfourth 71H; of the hereditar/ estate, after deducting all de-ts and charges, which shall not include

those imposed in the will of the decedent, in accordance with Article 9:8 of the Civil Code0 Costs against

appellees in this instance0

une 5! 1"66

G.R. No. ),544

R%*%+&(' N/G/&+! -etitioner and a--ellant!vs.

F%)&? N/G/&+ and 0A 'A)(NGA N/G/&+! o--ositors and a--ellees.

ustodio (. 0artade for -etitioner and a--ellant.

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alia, is that -/ the institution of petitioner Remedios @uguid as universal heir of the deceased, oppositors

F who are compulsor/ heirs of the deceased in the direct ascending line F were illegall/ preterited and

that in conseGuence the institution is void0

)n August 29, 1964, -efore a hearing was had on the petition for pro-ate and o-*ection thereto,

oppositors moved to dismiss on the ground of a-solute preterition0

)n 3eptem-er 6, 1964, petitioner registered her opposition to the motion to dismiss0

The court?s order of @ovem-er 8, 1964, held that .the will in Guestion is a complete nullit/ and will

perforce create intestac/ of the estate of the deceased Rosario @uguid. and dismissed the petition

without costs0

A motion to reconsider having -een thwarted -elow, petitioner came to this Court on appeal0

10 Right at the outset, a procedural aspect has engaged our attention0 The case is for the pro-ate of a will0

The court?s area of inGuir/ is limited F to an eamination of, and resolution on, the etrinsic validit/ of the

will0 The due eecution thereof, the testatri?s testamentar/ capacit/, and the compliance with the

reGuisites or solemnities -/ law prescri-ed, are the Guestions solel/ to -e presented, and to -e acted

upon, -/ the court0 3aid court at this stage of the proceedings F is not called upon to rule on the intrinsic

validit/ or efficac/ of the provisions of the will, the legalit/ of an/ devise or legac/ therein0OO1PP

A peculiar situation is here thrust upon us0 The parties shunted aside the Guestion of whether or not the

will should -e allowed pro-ate0 (or them, the meat of the case is the intrinsic validit/ of the will0 @ormall/,

this comes onl/ after the court has declared that the will has -een dul/ authenticated0OO2PP ut petitioner

and oppositors, in the court -elow and here on appeal, travelled on the issue of law, to wit$ "s the will

intrinsicall/ a nullit/K

%e pause to reflect0 "f the case were to -e remanded for pro-ate of the will, nothing will -e gained0 )n the

contrar/, this litigation will -e protracted0 And for aught that appears in the record, in the event of pro-ate

or if the court re*ects the will, pro-a-ilit/ eists that the case will come up once again -efore us on the

same issue of the intrinsic validit/ or nullit/ of the will0 Result$ waste of time, effort, epense, plus addedaniet/0 These are the practical considerations that induce us to a -elief that we might as well meet headE

on the issue of the validit/ of the provisions of the will in Guestion0OO4PP After all, there eists a *usticia-le

controvers/ cr/ing for solution0

20 ", -eing of sound and disposing mind and memor/, having amassed a certain

amount of propert/, do here-/ give, devise, and -eGueath all of the propert/ which " ma/ have when " dieto m/ -eloved sister Remedios @uguid, age 4;, residing with me at 48E "riga, D0C0 "n witness whereof, "

have signed m/ name this seventh da/ of @ovem-er, nineteen hundred and fift/Eone0

73gd0 "llegi-le

TH R)3AR") @>"

The statute we are called upon to appl/ in Article 8#; of the Civil Code which, in part, provides$

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ART0 8#;0 The preterition or omission of one, some, or all of the compulsor/ heirs in the direct line,

whether living at the time of the eecution of the will or -orn after the death of the testator, shall annul the

institution of heir= -ut the devises and legacies shall -e valid insofar as the/ are not inofficious0 0

'cept for inconseGuential variation in terms, the foregoing is a reproduction of Article 81; of the Civil

Code of 3pain of 1889, which is similarl/ herein copied, thus F

Art0 81;0 The preterition of one or all of the forced heirs in the direct line, whether living at the time of the

eecution of the will or -orn after the death of the testator, shall void the institution of heir= -ut the legacies

and -ettermentsOO;PP shall -e valid, in so far as the/ are not inofficious0 0

A comprehensive understanding of the term preterition emplo/ed in the law -ecomes a necessit/0 )n this

point Manresa comments$

a pretericion consiste en omitar al heredero en el testamento0 ) no se le nom-ra siGuiera o aun

nom-randole como padre, hi*o, etc0, no se le institu/a heredero ni se le deshereda epresamente ni se le

asigna parte alguna de los -ienes, resultando privado de un modo tacito de su derecho a legitima0

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The same view is epressed -/ 3anche Roman$ F

a consecuencia de la anulacion o nulidad de la institucion de heredero por pretericion de uno, varios o

todos los forosos en linea recta, es la apertura de la sucesion intestada total o parcial0 3era total,

cuando el testador Gue comete la pretericion, hu-iese dispuesto de todos los -ienes por titulo universal

de herencia en favor de los herederos instituidos, cu/a institucion se anula, porGue asi lo eige lageneralidad del precepto legal del art0 81;, al determinar, como efecto de la pretericion, el de Gue

.anulara la institucion de heredero0. 000 OO11PP

Reall/, as we anal/e the word annul emplo/ed in the statute, there is no escaping the conclusion that

the universal institution of petitioner to the entire inheritance results in totall/ a-rogating the will0 ecause,

the nullification of such institution of universal heir F without an/ other testamentar/ disposition in the will

F amounts to a declaration that nothing at all was written0 Carefull/ worded and in clear terms, Article

8#; offers no leewa/ for inferential interpretation0 >iving it an epansive meaning will tear up -/ the roots

the fa-ric of the statute0 )n this point, 3anche Roman cites the .Memoria annual del Tri-unal 3upreme,

correspondiente a 19:8., which in our opinion epresses the rule of interpretation, vi$

000 'l art0 81;, Gue preceptua en tales casos de pretericion la nulidad de la institucion de heredero, no

consiente interpretacion alguna favora-le a la persona instituida en el sentido antes epuesto aun cuando

pareca, / en algun caso pudiera ser, mas o menos eGuitativa, porGue una nulidad no significa en

erecho sino la suposicion de Gue el hecho o el acto no se ha realiado, de-iendo por lo tanto

procederse so-re tal -ase o supuesto, / consiguientemente, en un testamento donde falte la institucion,

es o-ligado llamar a los herederos forosos en todo caso, como ha-ria Gue llamar a los de otra clase,

cuando el testador no hu-iese distri-udo todos sus -ienes en legados, siendo tanto mas o-ligada esta

consecuencia legal cuanto Gue, en materia de testamentos, sa-ido es, segun tiene declarado la

*urisprudencia, con repeticion, Gue no -asta Gue sea conocida la voluntad de Guien testa si esta voluntad

no aparece en la forma / en las condiciones Gue la le/ ha eigido para Gue sea valido / efica, por lo Gue

constituiria una interpretacion ar-itraria, dentro del derecho positivo, reputar como legatario a un

heredero cu/a institucion fuese anulada con preteto de Gue esto se acomoda-a me*or a la voluntad del

testador, pues aun cuando asi fuese, sera esto raon para modificar la le/, pero no autoria a una

interpretacion contraria a sus terminos / a los principios Gue informan la testamentifaccion, pues noporGue pareca me*or una cosa en el terreno del erecho constitu/ente, ha/ raon para convereste *uicio

en regla de interpretacion, desvirtuando / anulando por este procedimiento lo Gue el legislador Guiere

esta-lecer0 OO12PP

40 %e should not -e led astra/ -/ the statement in Article 8#; that, annullment notwithstanding, .the

devises and legacies shall -e valid insofar as the/ are not inofficious.0 egacies and devises merit

consideration onl/ when the/ are so epressl/ given as such in a will0 @othing in Article 8#; suggests that

the mere institution of a universal heir in a will F void -ecause of preterition F would give the heir so

instituted a share in the inheritance0 As to him, the will is ineistent0 There must -e, in addition to such

institution, a testamentar/ disposition granting him -eGuests or legacies apart and separate from the

nullified institution of heir0 3anche Roman, spea+ing of the two component parts of Article 81;, now 8#;,

states that preterition annuls the institution of the heir .totalmente por la pretericion.= -ut added 7inreference to legacies and -eGuests .pero su-sistiendo 000 todas aGuellas otras disposiciones Gue no se

refieren a la institucion de heredero 000 0 OO14PP As Manresa puts it, annulment throws open to intestate

succession the entire inheritance including .la porcion li-re 7Gue no hu-iese dispuesto en virtud de

legado, me*ora o donacion0 OO1;PP

As aforesaid, there is no other provision in the will -efore us ecept the institution of petitioner as

universal heir0 That institution, -/ itself, is null and void0 And, intestate succession ensues0

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;0

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is undetermined0 egac/ refers to specific propert/ -eGueathed -/ a particular or special title0 000 ut again

an institution of heirs cannot -e ta+en as a legac/0 OO2#PP

The disputed order, we o-serve, declares the will in Guestion .a complete nullit/.0 Article 8#; of the Civil

Code in turn merel/ nullifies .the institution of heir.0 Considering, however, that the will -efore us solel/

provides for the institution of petitioner as universal heir, and nothing more, the result is the same0 The

entire will is null0

pon the view we ta+e of this case, the order of @ovem-er 8, 1964 under review is here-/ affirmed0 @o

costs allowed0 3o ordered0

G.R. No. 776 (3tober 7! 1"87

(N'#AN#&N( . AA&N! -etitioner!

vs.

$(N. &N#%R*%+&A#% A00%))A#% (/R# @#hird '-e3ial ases +ivision! 9&RG&N&A A.

F%RNAN+% and R('A +&(NG'(N! res-ondents.

This is a petition for review on certiorari of the decision Y of respondent0 Court of Appeals in ACE>0R0 3ARC"A3= 2 the correct status of I)@"A,

and 4 the hereditar/ share of each of them in view of the pro-ated %ill0 2

)n ul/ 1;, 195:, the Trial Court, presided -/ udge 'eGuiel 30 >rageda, rendered *udgment the

dispositive portion of which decrees$ tN0ZWhGwZ

%&'R'()R', *udgment is here-/ rendered declaring the plaintiffs ienvenido 30 >arcia and 'meteria

30 >arcia and the defendant 3onia Ana Tuagnon as the illegitimate children of the late r0 Meliton 3olano

under the class of AT'R)3 C&"R'@, with all the rights granted them -/ law0 The institution of

3onia Ana 3olano as sole and universal heir of the said deceased in the will is here-/ declared null and

void and the three 74 children shall share eGuall/ the estate or oneE third 71H4 each, without pre*udice to

the legac/ given to Trinidad Tuagnon and the right of an/ creditors of the estate0 @o pronouncement as to

costs0

Appealed to the Court of Appeals -/ I)@"A, said Court affirmed the *udgment in toto 7CAE>0R0 @o0

;9:180

I)@"A see+s a reversal of that affirmance in this petition, which was given due course0

At the outset, we should state that we are -ound -/ the findings of fact of -oth the Trial Court and the

Appellate Court, particularl/, the finding that the >ARC"A3 and I)@"A are, in fact, illegitimate children of

the 'C''@T0 The oral testimon/ and the documentar/ evidence of record inevita-l/ point to that

conclusion, as ma/ -e gleaned from the following -ac+ground facts$ 3)A@), a resident of Ta-aco,

Al-a/, married orand, who-ecame his second wife in 19280 The union was shortElived as she left him in 19290 "n the earl/ part of

194:, 3)A@) started having amorous relations with uana >arcia, out of which affair was -orn

ienvenido >arcia on March 2;, 1941 7'hi-its .A. L .4.= and on @ovem-er 4, 194#, 'meteria >arcia

was -orn 7'hi-its . . L .2.0 Their -irth certificates and -aptismal certificates mention onl/ the mother?s

name without the father?s name0 The facts esta-lish, however, that 3)A@) during his lifetime

recognied the >ARC"A3 as his children -/ acts of support and provisions for their education0

"n 194#, 3)A@) started living with Trinidad Tuagnon0 Three children were -orn out of this relation -ut

onl/ petitioner I)@"A Ana Tuagnon, -orn on ul/ 26, 19;1, is living0 "n her irth Certificate, her status

was listed as .illegitimate.= her mother as Trinidad Tuagnon= her father as .

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the province of Al-a/, ecept for five parcels of land in anta/an, Ta-aco, Al-a/, which were given to

Trinidad Tuagnon in usufruct pon 3)A@)?s petition 7'hi-it .1:., the %ill was dul/ pro-ated on March

1:, 1969 in 3pecial ARC"A3 to recognition0 Thus, she

was not defending the case as a mere representative of the deceased -ut asserted rights and defenses in

her own personal capacit/0 3o it was that the >ARC"A3 filed a .Repl/ to Appearance of I)@"A 000 and

3upplemental Cause of Action 000 .vigorousl/ den/ing that I)@"A was 3)A@)?s sole and universal heir=

that I)@"A could not legall/ -e considered as 3)A@)?s ac+nowledged natural child -ecause of a legal

impediment= that the admission to pro-ate of 3)A@)?s %ill was merel/ conclusive as to its due

eecution= that the supposed recognition under a notarial instrument of I)@"A as an ac+nowledged

natural child was fraudulent and a product of misrepresentation= that I)@"A?s recognition in the %ill as an

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ac+nowledged natural child is su-*ect to nullification and that at most I)@"A is, li+e them, an adulterous

child of 3)A@) with Trinidad Tuagnon0

uring the trial, the >ARC"A3 presented evidence to prove their allegations not onl/ in their main

complaint -ut also in their .Repl/ to Appearance and 3upplemental Cause of Action.0 I)@"A presented

no o-*ection to the presentation -/ the >ARC"A3 of their oral and documentar/ evidence and even crossE

eamined their witnesses0 I)@"A, for her part, presented her own testimonial and documentar/ evidence,denied the relationship of the >ARC"A3? to 3)A@) and presented the notarial recognition in her favor

as an ac+nowledged natural child -/ 3)A@) and Trinidad Tuagnon 7'hi-it .D.0 Thus, as raised -/ the

parties in their own pleadings and pursuant to their respective evidence during the trial, the litigation was

converted into a contest -etween the >ARC"A3 and I)@"A precisel/ as to their correct status as heirs

and their respective rights as such0 @o error was committed -/ either the Trial Court or the Appellate

Court, therefore, in resolving the issue of I)@"A?s status0

I)@"A additionall/ assails the *urisdiction of the Trial Court in declaring null and void the institution of heir

in 3)A@)?s will= in concluding that total intestac/ resulted therefrom= and distri-uting the shares of the

parties in 3)A@)?s estate when said estate was under the *urisdiction and control of the ARC"A3 were, in fact,

pretended from 3)A@)?s ast? %ill and Testament= and that as a result of said preterition, the institution

of I)@"A as sole heir -/ 3)A@) is null and void pursuant to Article 8#; of the Civil Code0 tN0ZWhGwZ

The preterition or omission of one, some, or all of the compulsor/ heirs in the direct line, whether living at

the time of the eecution of the will or -orn after the death of the testator, shall annul the institution of heir=

-ut the devises and legacies shall -e valid insofar as the/ are not inofficious0 000 8

As provided in the foregoing provision, the disposition in the %ill giving the usufruct in favor of Trinidad

Tuagnon over the five parcels of land in anta/an, Ta-aco, Al-a/, is a legac/, recognied in Article #64 of

the Civil Code, 9 and should -e respected in so far as it is not inofficious0 1:

3o also did the Trial Court have *urisdiction in resolving the issue of the hereditar/ shares of the

>ARC"A3 and I)@"A0 &owever, contrar/ to the conclusions of the Courts -elow, holding that the entire

%ill is void and intestac/ ensues, the pretention of the >ARC"A3 should annul the institution of I)@"A as

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heir onl/ insofar as the legitime of the omitted heirs is impaired0 The %ill, therefore, is valid su-*ect to that

limitation0 11 "t is a plain that the intention of the testator was to favor I)@"A with certain portions of his

propert/, which, under the law, he had a right to dispose of -/ %ill, so that the disposition in her favor

should -e upheld as to the oneEhalf 71H2 portion of the propert/ that the testator could freel/ dispose of0

12 3ince the legitime of illegitimate children consists of one half 71H2 of the hereditar/ estate, 14 the

>ARC"A3 and I)@"A each have a right to participation therein in the proportion of oneEthird 71H4 each0

I)@"A?s hereditar/ share will, therefore, -e 1H2 [ 71H4 of 1H2 or ;H6 of the estate, while the >ARC"A3 willrespectivel/ -e entitled to 1H4 of 1H2 or 1H6 of the value of the estate0

As heretofore stated, the usufruct in favor of Trinidad Tuagnon over the properties indicated in the %ill is

valid and should -e respected0

The case of @uguid vs0 @uguid, et al0, 1; reiterating the ruling in @eri, et al0 vs0 A+utin, et al0, 1# which

held that where the institution of a universal heir is null and void due to pretention, the %ill is a complete

nullit/ and intestate succession ensues, is not applica-le herein -ecause in the @uguid case, onl/ a oneE

sentence %ill was involved with no other provision ecept the institution of the sole and universal heir=

there was no specification of individual propert/= there were no specific legacies or -eGuests0 "t was upon

that factual setting that this Court declared$ tN0ZWhGwZ

The disputed order, we o-serve, declares the will in Guestion ?a complete nullit/0 Article 8#; of the Civil

Code in turn merel/ nullifies ?the institution of heir?0 Considering, however, that the will -efore us solel/

provides for the institution of petitioner as universal heir, and nothing more, the result is the same0 The

entire will is null0. 7at p0 ;#9

"n contrast, in the case at -ar, there is a specific -eGuest or legac/ so that Article 8#; of the Civil Code,

supra, applies merel/ annulling the .institution of heir.0

astl/, it should -e pointed out that the *urisdiction of the Trial Court and the Appellate Court was never

Guestioned -efore either Court0 I)@"A herself had gone, without o-*ection, to trial on the issues raised

and as defined -/ the Trial Court0 @either had I)@"A assigned lac+ of *urisdiction of the Trial Court as an

error -efore the Appellate Court0 3he should now -e held estopped to repudiate that *urisdiction to which

she had voluntaril/ su-mitted, after she had received an unfavora-le *udgment, The leading case of Ti*amvs0 3i-onghano/, 16 on this point, declared$ tN0ZWhGwZ

A part/ cannot invo+e the *urisdiction of a court to secure affirmative relief against his opponent and after

failing to o-tain such relief, repudiate or Guestion the same *urisdiction0 The Guestion whether the court

has *urisdiction either of the su-*ect matter of the action or of the parties is not -ecause the *udgment or

order of the court is valid and conclusive as an ad*udication -ut for the reason that such practice cannot

-e tolerated o-viousl/ for reasons of pu-lic polic/0 After voluntaril/ su-mitting a cause and encountering

an adverse decision on the merits, it is too late for the loser to Guestion the *urisdiction or power of the

court0

%&'R'()R', the *udgment under review is here-/ modified in that the hereditar/ share in the estate of

the decedent of petitioner Ionia Ana T0 3olano is here-/ declared to -e 71H2 [ 71H4 of 1H2 or ;H6 of saidestate, while that of private respondents, ienvenido 30 >arcia and 'meteria 30 >arcia, shall each -e 71H4

of 1H2 or 71H6 of the estate0 The usufruct in favor of Trinidad Tuagnon shall -e respected0 The *udgment

is affirmed in all other respects0 @o costs0

3) )R'R'0

8/11/2019 Art 841 - 856

57/62

G.R. No. ),7848 une 1"! 1"8

RAFA%) %. *AN&NANG and '()%+A+ ). *AN&NANG! -etitioners!vs.

(/R# (F A00%A)'! $(N. R&AR+( ). 0R(N(9%! R.! as udge of the ourt of First &nstan3e of

Ri>al and

8/11/2019 Art 841 - 856

58/62

"n her )pposition to said Motion to ismiss, petitioner 3oledad averred that it is still the rule that in a case

for pro-ate of a %ill, the Court?s area of inGuir/ is limited to an eamination of and resolution on the

etrinsic validit/ of the will= and that respondent ernardo was effectivel/ disinherited -/ the decedent0 2

)n 3eptem-er 8, 198:, the lower Court ordered the dismissal of the Test