IN RE: PETITION FOR ADOPTION OF MICHAEL JUDE P. LIM G.R. Nos. 168992-93, May 21, 2009 CARPIO, J.

: FACTS: On 23 June 1974, Petitioner Monina P. Lim married Primo Lim. They werec h i l d l e s s . S u b s e q u e n t l y , m i n o r c h i l d r e n , w h o s e p a r e n t s w e r e u n k n o w n , w e r e entrusted to them by a certain Lucia Ayuban. Being so eager to have a child of their own, Monina and Primo registered the children to make it appear that they were the childrens parents. The children were named Michelle P. Lim and Michael Jude P.Lim. The spouses reared and cared for the children as if they were their own. They s e n t t h e c h i l d r e n t o e x c l u s i v e s c h o o l s . T h e y u s e d t h e s u r n a m e " L i m " i n a l l t h e i r school records and documents. Unfortunately, on 28 November 1998, Primo died. On 27 December 2000, petitioner married Angel Olario, an American citizen. T h e r e a f t e r , p e t i t i o n e r d e c i d e d t o a d o p t t h e c h i l d r e n b y a v a i l i n g o f t h e amnest y given under Republic Act No. 8552 (RA 8552) to those individuals who s i m u l a t e d t h e b i r t h o f a c h i l d . T h u s , o n 2 4 A p r i l 2 0 0 2 , p e t i t i o n e r f i l e d s e p a r a t e petitions for the adopt ion of Michelle and Michael, who was already 25 years old and already married and 18 years and seven months, before the trial court. Michelle, toget her with her husband and Michael, gave their consent to thea d o p t i o n a s e v i d e n c e d b y t h e i r A f f i d a v i t s o f C o n s e n t . M o n i n a s h u s b a n d A n g e l likewis e executed an Affidavit of Consent for the adoption of Michelle and Michael. O n 1 5 S e p t e m b e r 2 0 0 4 , t h e trial court rendered judgment dismissing t h e petitions. On the ground that since petitioner having remarried, should have filedthe petition jointly with her new husband. The trial court ruled that joint adoption by the husband and the wife is mandatory citing Section 7(c), Article III of RA 8552 and Article 185 of the Family Code. Pet itioner filed a Motion for Reconsiderat ion of the decision but the motion was denied. In denying the motion, the trial court ruled that petit ioner did not fall under any of the exceptions under Section 7(c), Article III of RA 8552.

ISSUE: WON petitioner Monina Lim, who has remarried, can singly adopt?

RULING: Joint Adoption by Husband and Wife I t i s u n d i s p u t e d t h a t , a t t h e t i m e t h e p e t i t i o n s f o r a d o p t i o n w e r e f i l e d , pet itio ner had already remarried. She filed the pet itions by herself, without being joined by her husband Angel Olario. We have no other recourse but to affirm the trial courts decision denying the petitions for adoption. Dura lex sed lex. The law is explicit. Section 7, Article III of RA 8552 reads: SEC. 7. Who May Adopt. The following may adopt:(a) Any Filipino citizen of legal age, in possession of full civil capacit y and legal r i g h t s , o f g o o d m o r a l c h a r a c t e r , h a s n o t b e e n c o n v i c t e d o f a n y c r i m e i n v o l v i n g moral turpitude, emotionally and psychologically capable of caring for children, at least sixteen (16) years older than the adoptee, and who is in a position to supporta n d c a r e f o r h i s / h e r c h i l d r e n i n k e e p i n g w i t h t h e m e a n s o f t h e f a m i l y . T h e requirement of sixt een (16) year difference bet ween the age of the adopt er and adoptee may be waived when the adopter is the biological parent of the adoptee, or is the spouse of the adoptees parent;( b ) A n y a l i e n p o s s e s s i n g t h e s a m e q u a l i f i c a t i o n s a s a b o v e s t a t e d f o r F i l i p i n o nationals: Provided, That his/her country has diplomatic relations with the Republic of the Philippines, that he/she has been living in the Philippines for at least three (3)continuous years prior to the filing of the applicat ion for adoption and maintains such residence until the adoption decree is entered, that he/she has been certified by his/her diplomatic or consular office or any appropriate government agency that he/she has the legal capacity to adopt in his/her country, and that h i s / h e r government allows the adoptee to enter his/her country as his/her a dopteds o n / d a u g h t e r : P r o v i d e d , f u r t h e r , T h a t t h e r e q u i r e m e n t s o n r e s i d e n c y a n d certification of the aliens qualification to adopt in his/her country may be waived forthe following:(i) a former Filipino citizen who seeks to adopt a relat ive within the fourth (4th)degree of consanguinity or affinity; or(ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or(iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/herspouse a relat ive within the

fourth (4th) degree of consanguinity or affinit y of the Filipino spouses; or(c) The guardian with respect to the ward after the termination of the guardianship and clearance of his/her financial accountabilities. Husband and wife shall jointly adopt, except in the following cases:(i) if one spouse seeks to adopt the legitimate son/daughter of the other; or(ii) if one spouse seeks to adopt his/her own illegit imat e son/daughter: Provided, however, That the other spouse has signified his/her consent thereto; or(iii) if the spouses are legally separated from each other. In case husband and wife jointly adopt, or one spouse adopts the illegitimates o n / d a u g h t e r o f t h e o t h e r , j o i n t p a r e n t a l a u t h o r i t y s h a l l b e e x e r c i s e d b y t h e spouses. The use of the word "shall" in the above-quot ed provision means that joint adoption by the husband and the wife is mandatory. This is in consonance with the concept of joint parental authority over the child which is the ideal situation. As the child to be adopted is elevated to the level of a legitimate child, it is but natural to require the spouses to adopt jointly. The rule also insures harmony bet ween the spouses. Petitioner, having remarried at the time the petitions for adoption were filed ,must jointly adopt . Since the pet itions for adoption were filed only by pet itioner herself, without joining her husband, Angel Olario, the trial court was correct in denying the petitions for adoption on this ground. Neither does petitioner fall under any of the three exceptions enumerated in Section 7.Effects of Adoption Pet itioner content ion that joint parental aut hority is not anymore necessary since the children have been emancipat ed having reached the age of majorit y is untenable. It is true that when the child reaches the age of emancipation that is, when h e a t t a i n s t h e a g e o f m a j o r i t y o r 1 8 y e a r s o f a g e e m a n c i p a t i o n t e r m i n a t e s parental authority over the person and property of the child, who shall then be q u a l i f i e d a n d r e s p o n s i b l e f o r a l l a c t s o f c i v i l l i f e . H o w e v e r , p a r e n t a l a u t h o r i t y i s merely just one of the effects of legal adoption. Article V of RA 8552 enumerates the effects of adoption, thus: Joint adoption of the husband and wife may not be dispensed. Adoption has, thus, the following effects:(1) sever all legal ties bet ween the biological parent(s) and the adoptee, except when the biological parent is the spouse of the adopter;(2) deem the adoptee as a legitimate child of the adopter; and( 3 ) g i v e a d o p t e r a n d a d o p t e e r e c i p r o c a l r i g h t s a n d o b l i g a t i o n s a r i s i n g f r o m t h e relatio nship of parent and child, including but not limited to:(i) the right of the adopter to choose the name the child is to be known; and(ii) the right of the adopt er and adoptee to be legal and compulsory heirs of each other. Therefore, even if emancipation terminates parental authority, the adoptee is still considered a legit imat e child of the adopter with all the rights of a legit imat e child such as: (1) to bear the surname of the fat her and the mother; (2) to receive s u p p o r t f r o m t h e i r p a r e n t s ; a n d ( 3 ) t o b e e n t i t l e d t o t h e l e g i t i m e a n d o t h e r successional rights. Conversely, the adoptive parents shall, with respect to the adopted child, enjoy all the benefits to which biological parents are entitled such as support and successional rights. Pet itioner, in her Memorandum, insists that subsequent events would show that joint adoption could no longer be possible because Angel Olario has filed a case for dissolution of his marriage to petitioner in the Los Angeles Superior Court. W e d i s a g r e e . T h e f i l i n g o f a c a s e f o r d i s s o l u t i o n o f t h e m a r r i a g e b e t w e e n petitioner and Angel Olario is of no moment. Unt il and unless there is a judicial decree for the dissolution of the marriage between petitioner and Angel Olario, the marriage still subsists. That being the case, joint adoption by the husband and the wife is required. We reiterat e our ruling above that since, at the time the petit ionsf o r a d o p t i o n w e r e f i l e d , p e t i t i o n e r w a s m a r r i e d t o O l a r i o , j o i n t a d o p t i o n i s mandatory.

Jarabini G. Del Rosario-versus- Asuncion G. Ferrer G.R. No. 187056September 20, 2010 FACTS: On August 27, 1968 the spouses Leopoldo and Guadalupe Gonzales executed a document entitled Donation Mortis Causa in favor of their two children, Asuncion and Emiliano, and their grand daughter,Jarabini (daughter of their predeceased son, Zoilo) covering the spouses126-square meter lot and the house on it in Pandacan, Manila in equal shares. Although denominated as a donation mortis causa, which in law is the equivalent of a will, the deed had no attestation clause and was witnessed by only two persons. The named donees, however, signified their acceptance of the donation on the face of the document. Guadalupe, the donor wife, died in September 1968. A few months later or on December 19, 1968, Leopoldo, the donor husband, executed adeed of assignment of his rights and interests in subject property to their daughter Asuncion. Leopoldo died in June 1972.In 1998 Jarabini filed a petition for the probate of the August 27,1968 deed of donation mortis causa before the Regional Trial Court(RTC) of Manila in Sp. Proc. 9890589. Asuncion opposed the petition,invoking his father Leopoldos assignment of his rights and interests in the property to her. After trial, the RTC rendered a decision dated June 20,2003, finding that the donation was in fact one made inter vivos , thedonors intention being to transfer title over the property to the donees during the donors lifetime, given its irrevocability. Consequently, said the RTC, Leopoldos subsequent assignment of his rights and interest in the property was void since he had nothing to assign. The RTC thus directed the registration of the property in the name of the donees in equal shares. The Court of Appeals reversed RTCs decision and held that Jarabini cant through her petition for the probate of the deed of donation mortis causa , collaterally attack Leopoldos deed of assignment in Asuncions favor. The CA further held that, since no proceeding exists for the allowance of what Jarabini claimed was actually a donation inter vivos , the RTC erred in deciding the case the way it did. Finally, the CA held that the donation, being one given mortis causa , did not comply with the requirements of a notarial will rendering the same void. Hence This Petition. ISSUE:WON the document is a donation mortis causa or donation inter vivos? RULING: The document is one of a donation inter vivos the Court held thatirrevocability is a quality absolutely incompatible with the idea of conveyances mortis causa , where revocability is precisely the essence of the act. A donation mortis causa has the following characteristics: It conveys no title or ownership to the transferee before the deathof the transferor; or, what amounts to the same thing, that the transferor should retain the ownership (full or naked) and control of the property while alive; . That before his death, the transfer should be revocable by the transferor at will,ad nutum ; but revocability may be provided for indirectly by means of a reserved power in the donor to dispose of the properties conveyed;and3. That the transfer should be void if the transferor should survive the transferee. The express irrevocability of the donation is the distinctive standard that identifies the document as a donation inter vivos. Here, the donors plainly said that it is our will that this Donation Mortis Causa shall be irrevocable and shall be respected by the surviving spouse. The intent to make the donation irrevocable becomes even clearer by the proviso that a surviving donor shall respect the irrevocability of the donation. Consequently, the donation was in reality a donation inter vivos .The donors in this case of course reserved the right, ownership, possession, and administration of the property and made the donation operative upon their death. But this Court has consistently held that such reservation(reddendum) in the context of an irrevocable donation simply means that the donors parted with their naked title, maintaining only beneficial ownership of the donated property while they lived. Notably, the three donees signed their acceptance of the donation, which acceptance the deed required. This Court has held that an acceptance clause indicates that the donation is inter vivos , since acceptance is a requirement only for such kind of donations. Donations mortis causa , being in the form of a will ,need not be accepted by the donee during the donors lifetime. Finally, as Justice J. B. L. Reyes said in Puig v. Peaflorida, in case of doubt, the conveyance should be deemed a donation inter vivos rather than mortis causa , in order to avoid uncertainty as to the ownership of the property subject of the deed. Since the donation in this case was one made inter vivos, it was immediately operative and final. The reason is that such kind of donation is deemed perfected from the moment the donor learned of the donees acceptance of the donation. The acceptance makes the donee the absolute owner of the property donated. Given that the donation in this case was irrevocable or one given inter vivos , Leopoldos subsequent assignment of his rights and interests in the property to Asuncion should be regarded as void for, by then, he had no more rights to assign. He could not give what he no longer had. Nemo dat quod non habet .Ergo, the trial court cannot be faulted for passing upon, in a petition for probate of what was initially supposed to be a donation mortis causa , the validityof the document as a donation inter vivos and the nullity of one of the donors subsequent assignment of his rights and interests in the property. The Court has held before that the rule on probate is not inflexible and absolute. Moreover, in opposing the petition for probate and in putting the validity of the deed of assignment squarely in issue, Asuncion or those who substituted her may not now claim that the trial court improperly allowed a collateral attack on such assignment.

[G.R. No. 129008. January 13, 2004]TEODORA A. RIOFERIO, VERONICA O. EVANGELISTA assisted by her husband ZALDYEVANGELISTA, ALBERTO ORFINADA, and ROWENA O. UNGOS, assisted by herhusband BEDA UNGOS, petitioners, vs. COURT OF APPEALS, ESPERANZA P.ORFINADA, LOURDES P. ORFINADA, ALFONSO ORFINADA, NANCY P.ORFINADA, ALFONSO JAMES P. ORFINADA, CHRISTOPHER P. ORFINADA andANGELO P. ORFINADA, respondents. TINGA, J FACTS: On May 13, 1995, Alfonso P. Orfinada, Jr. died without a will in Angeles City leaving several personal and real properties located in Angeles City, Dagupan City and Kalookan City. He also left a widow, respondent Esperanza P. Orfinada, whom he married on July 11, 1960 and with whom he had seven children who are the herein respondents. On November 14, 1995, respondents Alfonso James and Lourdes Orfinada discovered that onJune 29, 1995, petitioner Teodora Rioferio and her children executed an Extrajudicial Settlement of E state of a Deceased Person with Quitclaim involving the properties of the estate of the decedent located in Dagupan City and that accordingly, the Registry of Deeds in Dagupan issued Certificates of Titles Nos.63983, 63984 and 63985 in favor of petitioners Teodora Rioferio, Veronica Orfinada-Evangelista, Alberto Orfinada and Rowena Orfinada-Ungos. Respondents also found out that petitioners were able to obtain a loan of P700,000.00 from the Rural Bank of Mangaldan Inc. by executing a Real E state Mortgage over the properties subject of the extra-judicial settlement. On December 1, 1995, respondent AlfonsoClydeP. Orfinada III filed a Petition for Letters of Administration, before the Regional Trial Court of Angeles City, praying that letters of administration encompassing the estate of Alfonso P. Orfinada, Jr. Be issued to him.On December 4, 1995, respondents filed a Complaint for the Annulment/Rescission of Extra Judicial Settlement of E state of a Deceased Person with Quitclaim, Real E state Mortgage and Cancellation of Transfer Certificate of Titles with Nos. 63983, 63985 and 63984 and Other Related Documents with Damages against petitioners, the Rural Bank of Mangaldan, Inc. and the Register of Deeds of Dagupan City before the Regional Trial Court, Branch 42, Dagupan City. On April 29, 1996, petitioners filed a Motion to Set Affirmative Defenses for Hearing on the aforesaid ground.Petitioners moved for its reconsideration but the motion was likewise denied.This prompted petitioners to file before the Court of Appeals their Petition for Certiorari under Rule 65 of the Rules of Court. Petitioners averred that the RTC committed grave abuse of discretion in issuing the assailed order which denied the dismissal of the case on the ground that the proper party to filethe complaint for the annulment of the extrajudicial settlement of the estate of the deceased is the estate of the decedent and not the respondents. The Court of Appeals rendered the assailed Decision dated January 31, 1997, stating that it discerned no grave abuse of discretion amounting to lack or excess of jurisdiction by the public respondent judge when he denied petitioners motion to set affirmative defenses for hearing in view of its discretionary nature. ISSUE:WON the heirs may bring suit to recover property of the estate pending the appointment of an administrator is the issue in this case? RULING:YES. Petitioners vehemently fault the lower court for denying their motion to set the case for preliminary hearing on their affirmative defense that the proper party to bring the action is the estate of the decedent and not the respondents. Just as no blame of abuse of discretion can be laid on the lower courts doorstep for not hearing petitioners affirmative defense, it cannot likewise be faulted for recognizing the legal standing of the respondents as heirs to bring the suit Pending. the filing of administration proceedings, the heirs without doubt have legal personality to bring suit in behalf of the estate of the decedent in accordance with the provision of Article 777 of the New Civil Code that (t)he rights to succession are transmitted from the moment of the death of the decedent. Even if administration proceedings have already been commenced, the heirs may still bring if an administrator has not yet been appointed. This is the proper modality despite the total lack of advertence to the heirs in the rules on party representation. In fact, in the case of Gochan v. Young This Court recognized the legal standing of the heirs to represent the rights and properties of the decedent under administration pending the appointment of an administrator. Even if there is an appointed administrator, jurisprudence recognizes two exceptions, viz : (1) if the executor or administrator is unwilling or refuses to bring suit ( Pascual v. Pascual ); and (2) when theadministrator is alleged to have participated in the act complained of (Velasquez v. George) and he is made a party defendant ( Borromeo v. Borromeo). Evidently, the necessity for the heirs to seek judicial relief to recover property of the estate is as compelling when there is no appointed administrator, if not more, as where there is an appointed administrator but he is either disinclined to bring suit or is one of the guilty parties himself. As the appellate court did not commit an error of law in upholding the order of the lower court, recourse to this Court is not warranted. The assailed decision and resolution of the Court of Appeals are hereby AFFIRMED.

FLORDELIZA CALPATURA FLORA vs. ROBERTO PRADO, ET. AL.[G.R. No. 156879. January 20, 2004.] YNARES-SANTIAGO FACTS: The property under litigation is the northern half portion of a residential Quezon City and c o v e r e d b y T C T N o . 7 1 3 4 4 i s s u e d i n t h e n a m e o f N a r c i s a P r a d o a n d h e r c h i l d r e n b y h e r f i r s t husband, Patricio Prado, Sr., namely, Roberto, Erlinda, Daniel, Gloria, Patricio, Jr. and Edna,respondents herein. After the death of Patricio Prado, Sr., Narcisa married Bonifacio Calpatura. Inorder to support her minor children with her first husband, Narcisa and her brother-in-law, Tomas Calpatura, Sr., executed an Agreement of Purchase and Sale whereby the former agreed to sell tothe latter the northern half portion of the property for the sum of P10,500. A Deed of Absolute Salewas subsequently executed by he parties.I n 1 9 7 6 , T o m a s ' d a u g h t e r , F l o r d e l i z a C a l p a t u r a F l o r a , b u i l t a t w o - s t o r e y d u p l e x w i t h firewall on the northern half portion of the property. Respondents, who occupied the southern half portion of the land, did not object to the construction. Flordeliza Flora paid the corresponding taxes on the property. Likewise, Maximo Calpatura, the son of Tomas' cousin, built a small house onthe northern portion of the property.O n A p r i l 8 , 1 9 9 1 , r e s p o n d e n t s f i l e d a c o m p l a i n t f o r d e c l a r a t i o n o f n u l l i t y o f s a l e a n d delivery of possession of the northern half portion of the subject property against petitionersF l o r d e l i z a C a l p a t u r a F l o r a , D o m i n a d o r C a l p a t u r a a n d T o m a s C a l p a t u r a , J r . before the RTC.Respondents alleged that the transaction embodied in the Agreemen t t o P u r c h a s e a n d S a l e between Narcisa and Tomas was one of mortgage and not of sale; that Narcisa's children tried toredeem the mortgaged property but they learned that the blank document which their mother hadsigned was transformed into a Deed of Absolute Sale; that Narcisa could not have sold the northernhalf portion of the property co nsidering that she was prohibited from selling the same within aperiod of 25 years from its acquisition, pursuant to the condition annotated at the back of the title;that Narcisa, as natural guardian of her children, had no authority to sell the northern half portiono f t h e p r o p e r t y w h i c h s h e a n d h e r c h i l d r e n c o - o w n e d ; a n d t h a t o n l y P 5 , 0 0 0 . 0 0 o u t o f t h e consideration of P10,500.00 was paid by Tomas.In their answer, petitioners countered among others, that Narcisa owned 9/14 of theproperty, consisting of as her share in the conjugal partnership with her first husband and 1/7 asher share in the estate of her deceased husband; and that the consideration of the sale in theamount of P10,500 had been fully paid as of April 1, 1968.On April 2, 1997, the RTC dismissed the complaint. It found that the sa le was valid; thatthe Agreement to Purchase and Sale and the Deed of Absolute Sale were duly executed; and thatt h e s u m o f P 1 0 , 5 0 0 . 0 0 a s s e l l i n g p r i c e f o r t h e s u b j e c t p r o p e r t y w a s f u l l y p a i d t h e r e b e i n g n o demand for the payment of the remaining balance. The CA affirmed the RTCs decision with themodification the sale in dispute is declared valid only with respect to the one-seventh (1/7) shareof plaintiff-Narcisa Prado in the subject property. Hence, this petition. ISSUES: 1.Is the subject property conjugal or paraphernal?2 . W a s t h e t r a n s a c t i o n a s a l e o r a m o r t g a g e ? 3.How should the property be divided among the heirs of Patricio Prado, Sr.? RULING: 1. CONJUGAL . Article 160 of the Civil Code, which was in effect at the time the sale wasentered into, provides that all property of the marriage is presumed to belong to the conjugalpartnership unless it is proved that it pertains exclusively to the husband or to the wife. Proof ofacquisition during the marriage is a condition sine qua non in order for the presumption in favor ofconjugal ownership to operate.In the instant case, while Narcisa testified during cross-examination that she bought thesubject property from People's Homesite

Ho using Corporation with her own funds, she, howeveradmitted in the Agreement of Purchase and Sale and the Deed of Absolute Sale that the propertywas her conjugal share with her first husband, Patricio, Sr.2. SALE . Public or notarial documents may be presented in evidence without furtherproof, the certificate of acknowledgment being prima facie evidence of the execution of theinstrument or document involved. In order to contradict the presumption of regularity of a publicdocument, evidence must be clear, convincing, and more than merely preponderant.It is well-settled that in civil cases, the party that alleges a fact has the burden of provingi t . E x c e p t f o r t h e b a r e a l l e g a t i o n t h a t t h e t r a n s a c t i o n w a s o n e o f m o r t g a g e a n d n o t o f s a l e , respondents failed to adduce evidence in support thereof. Respondents also failed to controvertthe presumption that private transactions have been fair and regular.Furthermore, Narcisa, in fact did not deny that she executed an Affidavit allowing spousesWilfredo and Flordeliza Flora to construct a firewall between the two-storey duplex and her housesometime in 1976. While the deed of sale between Tomas and Narcisa was never registered norannotated on the title, respondents had knowledge of the possession of petitioners of the northernhalf portion of the property 3. The property being conjugal, upon the death of Patricio Prado, Sr., one-half of thesubject property as automatically reserved to the surviving spouse, Narcisa, as her share in theconjugal partnership. Patricio's rights to the other half, in turn, were transmitted upon his death tohis heirs, which includes his widow Narcisa, who is entitled to the same share as that of each of thelegitimate children. Thus, as a result of the death of Patricio, a regime of co-ownership aroseb e t w e e n N a r c i s a a n d t h e o t h e r h e i r i n r e l a t i o n t o t h e p r o p e r t y . T h e r e m a i n i n g o n e - h a l f w a s transmitted to his heirs by intestate succession. By the law on intestate succession, his six childrenand Narcisa Prado inherited the same at one-seventh (1/7) each pro indiviso. Inasmuch as Narcisainherited one-seventh (1/7) of her husband's conjugal share in the said property and is the owner ofone-half () thereof as her conjugal share, she owns a total of 9/14 of the subject property.Hence, Narcisa could validly convey her total undivided share in the entire property to Tomas.Narcisa and her children are deemed co-owners of the subject property

EN BANC G.R. No. L-7188 August 9, 1954 In re: Will and Testament of the deceased REVEREND SANCHO ABADIA. SEVERINA A. VDA. DE ENRIQUEZ, ET AL., petitioners-appellees, vs.MIGUEL ABADIA, ET AL., oppositorsappellants. FACTS: On September 6, 1923, Father Sancho Abadia, parish priest of Talisay, Cebu, executed a document purporting to be his Last Will and Testament. Resident of the City of Cebu, he died on January 14, 1943, in the municipality of Aloguinsan, Cebu, where he was an evacuee. He left properties estimated at P8,000 in value. On October 2, 1946, Andres Enriquez, one of the legatees filed a petition for the probate of the will in the Court of First Instance of Cebu. Some cousins and nephews who would inherit the estate of the deceased if he left no will, filed opposition. During the hearing one of the attesting witnesses, the other two being dead, testified without contradiction that in his presence and in the presence of his co-witnesses, Father Sancho wrote out in longhand the will in Spanish which the testator spoke and understood; that he signed on The left hand margin of the front page of each of the three folios or sheets of which the document is composed, and numbered the same with Arabic numerals, and finally signed his name at the end of his writing at the last page, all this, in the presence of the three attesting witnesses after telling that it was his last will and that the said three witnesses signed their names on the last page after the attestation clause in his presence and in the presence of each other. The oppositors did not submit any evidence. The trial court found and declared the will to be a holographic will; that it was in the handwriting of the testator and that although at the time it was executed and at the time of the testator's death, holographic wills were not permitted by law still, because at the time of the hearing and when the case was to be decided the new Civil Code was already in force, which Code permitted the execution of holographic wills, under a liberal view, and to carry out the intention of the testator which according to the trial

court is the controlling factor and may override any defect in form, said trial court admitted to probate the Last Will and Testament of Father Sancho Abadia. The oppositors appealed from that decision. ISSUE: Whether or not the holographic will should be allowed despite the fact that when it was executed the civil code proscribes the execution of such wills. RULING: The Supreme Court held that despite the effectivity of the new Civil Code allowing the execution of holographic wills, the contested holographic will still cannot be allowed and admitted to probate. This is because under Art. 795 of the Civil Code, the extrinsic validity of a will should be judged not by the law existing at the time of the testators death nor the law at the time of its probate, but by the law existing at the time of the execution of the instrument. For the very simple reason that although the will becomes operative only after the testators death, still his wishes are given expression at the time of execution.

NERA, ET AL.,plaintiffs-appellees, vs. RIMANDO, defendant-appellant. FACTS: This is an appeal from a decree of the trial court when it allowed the probate of the will of deceased based on the doctrine laid in the case of Jaboneta vs. Gustilo wherein the alleged fact in the said case was one of the subscribing witnesses was in the outer room when the testator and the other describing witnesses signed the instrument in the inner room, had it been proven, would not be sufficient in itself to invalidate the execution of the will. ISSUE: 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. RULING: A majority of the members of the court is of opinion that this subscribing witness was in the small room with the testator and the other subscribing witnesses at the time when they attached their signatures to the instrument. The Court ruled in the case of Jaboneta vs. Gustilo that the true test of presence of the testator and the witnesses in the execution of a will is not whether they actually saw each other sign, but whether they might have been seen each other sign, had they chosen to do so, considering their mental and physical condition and position with relation to each other at the moment of inscription of each signature.

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

AGAPITA CRUZ , petitioner, vs. VILLASOR, et al. Respondents ( 54 SCRA 31) FACTS: Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said decease opposed the allowance of the will, alleging the will was executed through fraud, deceit, misrepresentation and undue influence; that the said instrument was execute without the testator having been fully informed of the content thereof, particularly as to what properties he was disposing and that the supposed last will and testament was not executed in accordance with law. Of the three instrumental witnesses namely Deogracias T. Jamaloas Jr., Dr. Francisco Paares 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. 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 respondentappellee, Manuel B. Lugay, who is the supposed executor of the will, 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. Notwithstanding her objection, the Court allowed the probate of the said last will and testament. Hence this appeal by certiorari.

ISSUE: Whether the supposed last will and testament of Valente Z. Cruz was executed in accordance with law. RULING: 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; to own as genuine, to assent, to admit; and "before" means in front or preceding in space or ahead of. Consequently, if the third witness were the notary public himself, he would have to avow assent, or admit 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 to obtain would be sanctioning a sheer absurdity. The judgment appealed from is hereby reversed and the probate of the last will and testament of Valente Z. Cruz is declared not valid and hereby set aside.

After trial, the RTC rendered a decision dated June 20,2003, finding that the donation was in fact one made inter vivos , thedonors intention being to transfer title over the property to the doneesduring the donors lifetime, given its irrevocability. Consequently, said theRTC, Leopoldos subsequent assignment of his rights and interest in theproperty was void since he had nothing to assign. The RTC thus directedthe registration of the property in the name of the donees in equal shares.The Court of Appeals reversed RTCs decision and held thatJarabini cant through her petition for the probate of the deed of donation mortis causa , collaterally attack Leopoldos deed of assignmentin Asuncions favor. The CA further held that, since no proceeding existsfor the allowance of what Jarabini claimed was actually a donation

inter vivos , the RTC erred in deciding the case the way it did. Finally, the CAheld that the donation, being one given mortis causa , did not comply withthe requirements of a notarial will rendering the same void.Hence This Petition.Issue:W/N the document is a donation mortis causa or donation inter vivos.Held:The document is one of a donation inter vivos . the Court held thatirrevocability is a quality absolutely incompatible with the idea of conveyances mortis causa , where revocability is precisely theessence of the act. A donation mortis causa has the followingcharacteristics: 1. It conveys no title or ownership to the transferee before the deathof the transferor; or, what amounts to the same thing, that the transferor shouldretain the ownership (full or naked) and control of the property while alive;

2. That before his death, the transfer should be revocable by thetransferor at will, ad nutum ; but revocability may be provided for indirectly bymeans of a reserved power in the donor to dispose of the properties conveyed;and3. That the transfer should be void if the transferor should survivethe transferee.The express irrevocability of the donation is the distinctive standard thatidentifies the document as a donation inter vivos. Here, the donors plainly saidthat it is our will that this Donation Mortis Causa shall be irrevocable and shall berespected by the surviving spouse. The intent to make the donation irrevocablebecomes even clearer by the proviso that a surviving donor shall respect theirrevocability of the donation. Consequently, the donation was in reality adonation inter vivos .The donors in this case of course reserved the right, ownership,possession, and administration of the property and made the donation operativeupon their death. But this Court has consistently held that such reservation( reddendum ) in the context of an irrevocable donation simply means that thedonors parted with their naked title, maintaining only beneficial ownership of thedonated property while they lived.Notably, the three donees signed their acceptance of the donation, whichacceptance the deed required. This Court has held that an acceptance clauseindicates that the donation is inter vivos , since acceptance is a requirement onlyfor such kind of donations. Donations mortis causa , being in the form of a will,need not be accepted by the donee during the donors lifetime.Finally, as Justice J. B. L. Reyes said in Puig v. Peaflorida

, in case of doubt, the conveyance should be deemed a donation inter vivos rather than mortis causa , in order to avoid uncertainty as to the ownership of theproperty subject of the deed.Since the donation in this case was one made inter vivos , it wasimmediately operative and final. The reason is that such kind of donation isdeemed perfected from the moment the donor learned of the donees acceptanceof the donation. The acceptance makes the donee the absolute owner of theproperty donated.

Given that the donation in this case was irrevocable or one given inter vivos , Leopoldos subsequent assignment of his rights and interests in theproperty to Asuncionshould be regarded as void for, by then, he had no morerights to assign. He could not give what he no longer had. Nemo dat quod nonhabet .Ergo, the trial court cannot be faulted for passing upon, in a petition for probate of what was initially supposed to be a donation mortis causa , the validityof the document as a donation inter vivos and the nullity of one of the donorssubsequent assignment of his rights and interests in the property. The Court hasheld before that the rule on probate is not inflexible and absolute. Moreover, inopposing the petition for probate and in putting the validity of the deed of assignment squarely in issue, Asuncion or those who substituted her may notnow claim that the trial court improperly allowed a collateral attack on suchassignment.