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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., oppositors-appellants. Manuel A. Zosa, Luis B. Ladonga, Mariano A. Zosa and B. G. Advincula for appellants. C. de la Victoria for appellees. MONTEMAYOR, J.: On September 6, 1923, Father Sancho Abadia, parish priest of Talisay, Cebu, executed a document purporting to be his Last Will and Testament now marked Exhibit "A". 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, one Andres Enriquez, one of the legatees in Exhibit "A", filed a petition for its probate 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 Exhibit "A" in Spanish which the testator spoke and understood; that he (testator) signed on he 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 learned trial court found and declared Exhibit "A" 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 by order dated January 24, 1952, admitted to probate Exhibit "A", as the Last Will and Testament of Father Sancho Abadia. The oppositors are appealing from that decision; and because only questions of law are involved in the appeal, the case was certified to us by the Court of Appeals. The new Civil Code (Republic Act No. 386) under article 810 thereof provides that a person may execute a holographic will which must be entirely written, dated and signed by the testator himself and need not be witnessed. It is a fact, however, that at the time that Exhibit "A" was executed in 1923 and at the time that Father Abadia died in 1943, holographic wills were not permitted, and the law at the time imposed certain requirements for the execution of wills, such as numbering correlatively each page (not folio or sheet) in letters and signing on the left hand margin by the testator and by the three attesting witnesses, requirements which were not complied with in Exhibit "A" because the back pages of the first two folios of the will were not signed by any one, not even by the testator and were not numbered, and as to the three front pages, they were signed only by the testator. Interpreting and applying this requirement this Court in the case of In re Estate of Saguinsin, 41 Phil., 875, 879, referring to the failure of the testator and his witnesses to sign on the left hand margin of every page, said: . . . . This defect is radical and totally vitiates the testament. It is not enough that the signatures guaranteeing authenticity should appear upon two folios or leaves; three pages having been written on, the authenticity of all three of them should be guaranteed by the signature of the alleged testatrix and her witnesses.

And in the case of Aspe vs. Prieto, 46 Phil., 700, referring to the same requirement, this Court declared: From an examination of the document in question, it appears that the left margins of the six pages of the document are signed only by Ventura Prieto. The noncompliance with section 2 of Act No. 2645 by the attesting witnesses who omitted to sign with the testator at the left margin of each of the five pages of the document alleged to be the will of Ventura Prieto, is a fatal defect that constitutes an obstacle to its probate. What is the law to apply to the probate of Exh. "A"? May we apply the provisions of the new Civil Code which not allows holographic wills, like Exhibit "A" which provisions were invoked by the appelleepetitioner and applied by the lower court? But article 795 of this same new Civil Code expressly provides: "The validity of a will as to its form depends upon the observance of the law in force at the time it is made." The above provision is but an expression or statement of the weight of authority to the affect that the validity of a will is to be judged not by the law enforce at the time of the testator's death or at the time the supposed will is presented in court for probate or when the petition is decided by the court but at the time the instrument was executed. One reason in support of the rule is that although the will operates upon and after the death of the testator, the wishes of the testator about the disposition of his estate among his heirs and among the legatees is given solemn expression at the time the will is executed, and in reality, the legacy or bequest then becomes a completed act. This ruling has been laid down by this court in the case of In re Will of Riosa, 39 Phil., 23. It is a wholesome doctrine and should be followed. Of course, there is the view that the intention of the testator should be the ruling and controlling factor and that all adequate remedies and interpretations should be resorted to in order to carry out said intention, and that when statutes passed after the execution of the will and after the death of the testator lessen the formalities required by law for the execution of wills, said subsequent statutes should be applied so as to validate wills defectively executed according to the law in force at the time of execution. However, we

should not forget that from the day of the death of the testator, if he leaves a will, the title of the legatees and devisees under it becomes a vested right, protected under the due process clause of the constitution against a subsequent change in the statute adding new legal requirements of execution of wills which would invalidate such a will. By parity of reasoning, when one executes a will which is invalid for failure to observe and follow the legal requirements at the time of its execution then upon his death he should be regarded and declared as having died intestate, and his heirs will then inherit by intestate succession, and no subsequent law with more liberal requirements or which dispenses with such requirements as to execution should be allowed to validate a defective will and thereby divest the heirs of their vested rights in the estate by intestate succession. The general rule is that the Legislature can not validate void wills (57 Am. Jur., Wills, Sec. 231, pp. 192-193). In view of the foregoing, the order appealed from is reversed, and Exhibit "A" is denied probate. With costs. Paras, C.J., Pablo, Bengzon, Padilla, Reyes, A., Jugo, Bautista Angelo, Labrador, Concepcion and Reyes J.B.L., JJ., concur

husband and wife, the former having died on June 6, 1946 leaving heir the surviving spouse and some minor children; 2nd. hat upon the death of L.J. Winstanley, he left a parcel of land described under Transfer Certificate of title No. 2391 of the Registry of Deeds of the Province of Cebu; 3rd. That the above mentioned property was a conjugal property; 4th. That on April 15, 1946, the surviving spouse Catalina Navarro Vda. de Winstanley sold the entire parcel of land to the spouses Maria Canoy, alleging among other things, that she needed money for the support of her children; 5th. That on May 24, 1947, the spouses Maria Canoy and Roberto Canoy sold the same parcel of land to the plaintiff in this case named Bienvenido A. Ebarle; 6th. That the two deeds of sale referred to above were not registered and have never been registered up to the date; 7th. That on January 17, 1948 surviving spouse Catalina Navarro Vda. de Winstanley, after her appointment as guardian of her children by this court (Special proceeding no. 212-R) sold one-half of the land mentioned above to Esperanza M. Po, defendant in the instant case, which portion belongs to the children of the above named spouses. As stated by the trial Judge, the sole question for determination is the validity of the sale to Esperanza M. Po, the last purchaser. This question in turn depends upon the validity of the prior ale to Maria Canoy and Roberto Canoy. Article 657 of the old Civil Code provides: "The rights to the succession of a person are transmitted from the moment of his death." in a slightly different language, this article is incorporated in the new Civil Code as article 777.

G.R. No. L-5064

February 27, 1953

BIENVENIDO A. IBARLE, plaintiff-appellant, vs. ESPERANZA M. PO, defendant-appellant. Quirico del Mar for appellant. Daniel P. Tumulak and Conchita F. Miel appellee. TUASON, J.: This action commenced in the Court of First Instance of Cebu to annul a deed of sale conveying to the defendant, in consideration of P1,700, one undivided half of a parcel of land which previously had been sold, along with the other half, by the same vendor to the plaintiff's grantors. judgment was against the plaintiff. The case was submitted for decision upon an agreed statement of facts, the pertinent parts of which are thus summarized in the appealed decision: 1st. That Leonard j. Winstanley and Catalina Navarro were

Manresa, commending on article 657 of the Civil Code of Spain, says: The moment of death is the determining factor when the heirs acquire a definite right to the inheritance, whether such right be pure or contingent. It is immaterial whether a short or long period of time lapses between the death of the predecessor and the entry into possession of the property of the inheritance because the right is always deemed to be retroactive from the moment of death. (5 Manresa, 317.) The above provision and comment make it clear that when Catalina Navarro Vda. de Winstanley sold the entire parcel to the Canoy spouses, one-half of it already belonged to the seller's children. No formal or judicial declaration being needed to confirm the children's title, it follows that the first sale was null and void in so far as it included the children's share. On the other hand, the sale to the defendant having been made by authority of the competent court was undeniably legal and effective. The fact that it has not been recorded is of no consequence. If registration were necessary, still the non-registration would not avail the plaintiff because it was due to no other cause than his own opposition. The decision will be affirmed subject to the reservation, made in said decision, of the right of the plaintitff and/or the Canoy spouses to bring such action against Catalina Navarro Vda. de Winstanley as may be appropriate for such damages as they may have incurred by reason of the voiding of the sale in their favor. Paras, C.J., Feria, Pablo, Bengzon, Padilla, Montemayor, Reyes, Jugo, Bautista Angelo and Labrador, JJ., concur. G.R. No. L-55076 September 21, 1987 MATILDE S. PALICTE, petitioner, vs. HON. JOSE O. RAMOLETE as Presiding Judge of Court of First Instance of Cebu, Branch III, and MARCELO SOTTO, Administrator, respondents.

GUTIERREZ, JR., J.: This is a petition for review on certiorari of the order of the then Court of First Instance of Cebu declaring the deed of redemption

executed for the petitioner null and void and denying the petitioner's motion that the Registrar of Deeds of the City of Cebu be directed to transfer the Owner's Duplicate Certificates of Title to Lot Nos. 1049, 1051, and 1052 from Filemon Sotto to her and to issue a new Owner's Duplicate Certificate of Title to Lot 2179-C in her name. On July 5, 1979, a sale at public auction was held pursuant to a writ of execution issued on February 5, 1979 by the respondent judge and to a court order dated June 4, 1979 in the case of Pilar Teves, et al. vs Marcelo Sotto, Administrator, Civil Case No. R-10027, for the satisfaction of judgment in the amount of P725,270.00. The following properties belonging to the late Don Filemon Sotto and administered by respondent Marcelo Sotto were levied upon: 1. Parcel of land on Lot No. 1049, covered by TCT No. 27640 of the Banilad Friar Lands Estate, Cebu City; 2. Parcel of land on Lot No. 1052, covered by TCT No. 27642 of the Banilad Friar Lands Estate, Cebu City; 3. Parcel of land on Lot No. 1051,covered by TCT No. 27641 of the Banilad Friad Lands Estate, Cebu City; 4. Parcel of land on Lot No. 5253 of the Cebu Cadastre, Cebu City, covered by TCT No. 27639; 5. Parcel of land situated at Mantalongon, Dalaguete, Cebu, covered by TD No. 010661, with an area of 76708; (sic) 6. Parcel of land on Lot No. 4839 of the Upon Cadastre, at Barrio Sa-ac Mactan Island, with an area of Forty Four Thousand Six Hundred Forty Four (44,644) square meters more or less; 7. Residential House of strong materials, situated on a Government lot at Lahug, Cebu City;

8. Residential House of strong materials, situated at Central, Cebu City. " (Rollo, p. 40) Seven of the above-described properties were awarded to Pilar Teves, who alone bid for them for the amount of P217,300.00. The residential house situated on a government lot at Lahug, Cebu City, was awarded to lone bidder Asuncion Villarante for the amount of P10,000.00. Within the period for redemption, petitioner Matilde S. Palicte, as one of the heirs of the late Don Filemon Sotto, redeemed from purchaser Pilar Teves, four (4) lots for the sum of P60,000.00. A deed of redemption dated July 29, 1980, executed by Deputy Provincial Sheriff Felipe V. Belandres and approved by the Clerk of Court, Esperanza Garcia as Ex-Officio Sheriff, was issued for these lots: 1. A parcel of land or Lot No. 2179-C-PDI-25027 Cebu Cadastre, Cebu City, bid at P20,000.00; 2. A parcel of land or Lot No. 1052, covered by TCT No. 27642, of the Banilad Friar Lands Estate, Cebu City, bid at P15,000.00; 3. A parcel of land or Lot No.1051,covered by TCT No. 27641, of the Banilad Friar Lands Estate, Cebu City, at P5,000.00; 4. A parcel of land or Lot No. 1049, covered by TCT No. 27640, of the Banilad Friar Lands Estate, Cebu City, at P20,000.00. (Rollo, p. 42) On July 24, 1980, petitioner Palicte filed a motion with respondent Judge Ramolete for the transfer to her name of the titles to the four (4) parcels of land covered by the deed of redemption. This motion was opposed by the plaintiffs in Civil Case No. R-10027,

entitled "Pilar Teves, et al. vs Marcelo Sotto, administrator" on several grounds, principal among which, is that movant, Palicte, is not one of those authorized to redeem under the provisions of the Rules of Court. A hearing on the said motion, with both parties adducing evidence was held. The lower court held that although Palicte is one of the declared heirs in Spl. Proc. No. 2706-R, she does not qualify as a successor-ininterest who may redeem the real properties sold. It ruled that the deed of redemption is null and void. The motion of Palicte was denied. Hence, the present petition. The petitioner raises the following assignment of errors: A RESPONDENT JUDGE ERRED IN RULING THAT THE JUDGMENT DEBTOR ENTITLED TO REDEEM UNDER SECTION 29(a), RULE 39 OF THE REVISED RULES OF COURT REAL PROPERTY SOLD ON EXECUTION AGAINST THE ESTATE OF THE DECEDENT IS ONLY THE ADMINISTRATOR OF THE ESTATE, OR HIS SUCCESSOR-IN-INTEREST. B RESPONDENT JUDGE ERRED IN RULING THAT PETITIONER, WHO IS A DECLARED HEIR OF THE DECEDENT, IS NOT THE JUDGMENT DEBTOR NOR DOES SHE QUALIFY AS A SUCCESSOR-IN-INTEREST OF THE ADMINISTRATOR OF THE ESTATE ENTITLED TO RIGHT OF REDEMPTION UNDER SECTION 29(a), RULE 39 OF THE RULES OF COURT. C

RESPONDENT JUDGE ERRED IN RULING THAT ALTHOUGH PETITIONER IS A DECLARED HEIR OF THE DECEDENT, HER RIGHT TO THE ESTATE, LIKE THAT OF REDEMPTION OF CERTAIN ESTATE PROPERTY, COULD ONLY ARISE AFTER DISTRIBUTION OF THE ESTATE AS THERE IS STILL JUDGMENT DEBT CHARGEABLE AGAINST THE ESTATE. D RESPONDENT JUDGE ERRED IN RULING THAT PETITIONER'S REDEMPTION OF FOUR (4) PARCELS OF LAND OF THE ESTATE OF THE DECEDENT SOLD ON EXECUTION OF JUDGMENT AGAINST THE ESTATE IS NULL AND VOID AND INEFFECTIVE. (Rollo, pp. 17-18) These assigned errors center on whether or not petitioner Palicte may validly exercise the right of redemption under Sec. 29, Rule 39 of the Rules of Court. We answer in the affirmative. Sec. 29 of Rule 39 provides: SEC. 29. Who may redeem real property so sold. Real property sold as provided in the last preceding section, or any part thereof sold separately, may be redeemed in the manner hereinafter provided, by the following persons: (a) The judgment debtor, or his successor in interest in the whole or any part of the property; (b) A creditor having a lien by attachment, judgment or mortgage on the property sold, or on some part thereof, subsequent to the judgment under which the property was sold. Such redeeming creditor is termed a redemptioner. Under Subsection (a), property sold subject to redemption may be redeemed by the judgment debtor or his successor-in-interest in the

whole or any part of the property. Does Matilde Palicte fall within the term "successor-in-interest"? Magno vs Viola and Sotto (61 Phil. 80, 84-85) states that: The rule is that the term "successor-in-interest" includes one to whom the debtor has transferred his statutory right of redemption (Big Sespe Oil Co. vs Cochran, 276 Fed., 216, 223); one to whom the debtor has conveyed his interest in the property for the purpose of redemption (Southern California Lumber Co. vs. McDowell, 105 Cal, 99; 38 Pac., 627; Simpson vs. Castle, 52 Cal., 644; Schumacher vs. Langford, 20 Cal. App., 61; 127 Pac., 1057); one who succeeds to the interest of the debtor by operation of law (XI McKinney's California Jurisprudence, 99); one or more joint debtors who were joint owners of the property sold (Emerson vs. Yosemite Gold Min. etc. Co., 149 Cal., 50; 85 Pac., 122); the wife as regards her husband's homestead by reason of the fact that some portion of her husband' title passes to her (Hefner vs. Urton, 71 Cal., 479; 12 Pac., 486). This court has held that a surety can not redeem the property of the principal sold on execution because the surety, by paying the debt of the principal, stands in the place of the creditor, not of the debtor, and consequently is not a successor in interest in the property. (G. Urruitia & Co. vs. Moreno and Reyes, 28 Phil., 260, 268). (Emphasis supplied). In the case at bar, petitioner Palicte is the daughter of the late Don Filemon Sotto whose estate was levied upon on execution to satisfy the money judgment against it. She is one of the declared heirs in Special Proceeding No. 2706-R. As a legitimate heir, she qualifies as a successor-in- interest. Art. 777 of the Civil Code states that: The rights to the succession are transmitted from the moment of the death of the decedent.

At the moment of the decedent's death, the heirs start to own the property, subject to the decedent's liabilities. In fact, they may dispose of the same even while the property is under administration. (Barretto vs. Tuason, 59 Phil. 845; Jakosalem vs. Rafols, 73 Phil. 628). If the heirs may dispose of their shares in the decedent's property even while it is under administration. With more reason should the heirs be allowed to redeem redeemable properties despite the presence of an administrator. The respondents contend that the petitioner must positively prove that the three other co-heirs, the administrator, and the intestate court had expressly agreed to the redemption of the disputed parcels of land. We see no need for such prior approval. While it may have been desirable, it is not indispensable under the circumstances of this case. What is important is that all of them acquiesced in the act of redeeming property for the estate. The petitioner contends that the administrator and the three other heirs agreed to the redemption. There is, however. no clear proof of such approval. What is beyond dispute from the records is that they did not disapprove nor reprobate the acts of the petitioner. There is likewise nothing in the records to indicate that the redemption was not beneficial to the estate of Don Filemon Sotto. It may be true that the interest of a specific heir is not yet fixed and determinate pending the order of distribution but, nonetheless, the heir's interest in the preservation of the estate and the recovery of its properties is greater than anybody else's, definitely more than the administrator's who merely holds it for the creditors, the heirs, and the legatees. The petitioner cites precedents where persons with inchoate or contingent interest were allowed to exercise the right of redemption as "successors-in-interest," e.g. Director of Lands vs. Lagniton (103 Phil. 889, 892) where a son redeemed the property of his parents sold on execution and Rosete vs. Provincial Sheriff of Zambales (95 Phil. 560, 564), where a wife by virtue of what the Court called "inchoate right of dower or contingent interest" redeemed a homestead as successor-in-interest of her husband. In fact, the Court was explicit in Lagniton that:

... The right of a son, with respect to the property of a father or mother, is also an inchoate or contingent interest, because upon the death of the father or the mother or both, he will have a right to inherit said conjugal property. If any holder of an inchoate interest is a successor in interest with right to redeem a property sold on execution, then the son is such a successor in interest, as he has an inchoate right to the property of his father. The lower court, therefore, erred in considering the person of the administrator as the judgment debtor and as the only "successor-ininterest." The estate of the deceased is the judgment debtor and the heirs who will eventually acquire that estate should not be prohibited from doing their share in its preservation. Although petitioner Palicte validly redeemed the properties, her motion to transfer the titles of the four (4) parcels of land covered by the Deed of Redemption from registration in the name of Filemon Sotto to her name cannot prosper at this time. Otherwise, to allow such transfer of title would amount to a distribution of the estate. As held in the case of Philippine Commercial and Industrial Bank vs. Escolin (56 SCRA 267, 345- 346): Indeed, the law on the matter is specific, categorical and unequivocal. Section 1 of Rule 90 provides: SECTION 1. When order for distribution of residue made. When the debts, funeral charges, and expenses of administration, the allowance to the widow, and inheritance tax, if any, chargeable to the estate in accordance with law, have been paid, the court, on the application of the executor or administrator, or of a person interested in the estate, and after hearing upon notice, shall assign the residue of the estate to the persons entitled to the same, naming them and the proportions, or parts, to which

each is entitled, and such persons may demand and recover their respective shares from the executor or administrator, or any other person having the same in his possession. If there is a controversy before the court as to who are the lawful heirs of the deceased person or as to the distributive shares to which each person is entitled under the law, the controversy shall be heard and decided as in ordinary cases. No distribution shall be allowed until the payment of the obligations above mentioned has been made or provided for, unless the distributees, or any of them, give a bond, in a sum to be fixed by the court, conditioned for the payment of said obligations within such time as the court directs. These provisions cannot mean anything less than that in order that a proceeding for the settlement of the estate of a deceased may be deemed ready for final closure, (1) there should have been issued already an order of distribution or assignment of the estate of the decedent among or to those entitled thereto by will or by law, but (2) such order shall not be issued until after it is shown that the "debts, funeral expenses, expenses of administration, allowances, taxes, etc., chargeable to the estate" have been paid, which is but logical and proper, (3) besides, such an order is usually issued upon proper and specific application for the purpose of the interested party or parties, and not of the court." The other heirs are, therefore, given a six months period to join as co-redemptioners in the redemption made by the petitioner before the motion to transfer titles to the latter's name may be granted. WHEREFORE, the petition is hereby GRANTED. The respondent court's orders declaring the deed of redemption null and void and denying the motion to transfer title over the redeemed properties to Matilda Palicte are REVERSED and SET ASIDE, subject to the right of the other heirs to join in the redemption as stated above.

SO ORDERED. Fernan (Chairman), Feliciano, Bidin and Cortes, JJ., concur.

and C-1).

On June 6, 1966 the same court issued an Order approving the Settlement of Estate submitted by the heirs of the late ESdras Nufable, portions of which read:

KNOW ALL MEN BY THESE PRESENTS: G.R. No. 126950 July 2, 1999 NELSON NUFABLE, SILMOR NUFABLE and AQUILINA NUFABLE, petitioners, vs. GENEROSA NUFABLE, VILFOR NUFABLE, MARCELO NUFABLE, and the COURT OF APPEALS, respondents. GONZAGA-REYES, J.: This petition for review on certiorari seeks to reverse and set aside the Decision dated November 25, 1995 of the Fifth Division 1 of the Court of Appeals for allegedly being contrary to law. HEREBY DECLARE AND MAKE MANIFEST We, ANGEL CUSTODIO NUFABLE, GENEROSA NUFABLE, VILFOR NUFABLE and MARCELO NUFABLE, all of legal ages (sic), Filipinos, and with residence and postal address at Manjuyod, Negros Oriental, Philippines,

The following facts as found by the Court of Appeals are undisputed:

1. That on August 9, 1965, Rev. Fr. Esdras Nufable died leaving (a) Last Will and Testament (marked Exh. G) disposing (of) his properties or estate in favor of his four legitimate children, namely: Angel Custodio Nufable, Generosa Nufable, Vilfor Nufable and Marcelo Nufable;

Edras Nufable owned at Poblacion, Manjuyod, Negros Oriental, consisting of 948 square meters, more or less. He died on August 9, 1965 and was survived by his children, namely: Angel Custodio, Generosa, Vilfor and Marcelo, all surnamed Nufable. Upon petition for probate filed by said heirs and after due publication and hearing, the then Court of First Instance of Negros Oriental (Branch II) issued an Order dated March 30, 1966 admitting to probate the last will and testament executed by the deceased Edras Nufable (Exhs. B, C

2. That on March 30, 1966 the said Last Will and Testament was probated by the Honorable Court, Court of First Instance of Negros Oriental, and is embodied in the same order appointing an Administratrix, Generosa Nufable, but to qualify only if she put up a necessary bond of P1,000.00;

3. That herein legitimate children prefer not to appoint an Administratrix, as agreed upon (by) all the heirs, because they have no objection as to the manner of disposition of their share made by the testator, the expenses of the proceedings and that they have already taken possession of their respective shares in accordance with the will;

On January 11, 1980, Nelson Nufable, the son of Angel Custodio Nufable (who died on August 29, 1978 [TSN, Testimony of Nelson Nufable, Hearing of August 18, 1992, p. 17]), purchased said property from DBP (Exh. "1").

4. That the herein heirs agreed, as they hereby agree to settle the estate in accordance with the terms and condition of the will in the following manner, to wit:

Generosa, Vilfor and Marcelo, all surnamed Nufable filed with the lower court a complaint dated July 25, 1985 "To Annul Fraudulent Transactions, to Quiet Title and To Recover Damages' against Nelson Nufable, and wife, Silmor Nufable and his mother Aquilina Nufable. Plaintiffs pray:

a) That the parcel of land situated in Poblacion Manjuyod, Negros Oriental remains undivided for community ownership but respecting conditions imposed therein (sic) in the will;

WHEREFORE, plaintiffs pray this Honorable Court that after trial judgment be rendered ordering:

xxx xxx xxx

(a) That the said Deed of Sale (Annex "C") executed by the Development Bank of the Philippines in favor of the defendants be declared null and void as far as the three fourths (3/4) rights which belongs (sic) to the plaintiffs are concerned;

(Exhs. "E" and "E-1")

(b) That the said three fourths (3/4) rights over the above parcel in question be declared as belonging to the plaintiffs at one fourth right to each of them;

Two months earlier, or on March 15, 1966, spouses Angel Custodio and Aquilina Nufable mortgaged the entire property located at Manjuyod to the Development Bank of the Philippines [DBP] (Pretrial Order, dated January 7, 1992, p. 103, Original Records). Said mortgagors became delinquent for which reason the mortgaged property was foreclosed by DBP on February 26, 1973 (id.).

(c) To order the defendants to pay jointly and severally to the plaintiffs by way of actual and moral damages the amount of P10,000.00 and another P5,000.00 as Attorney's fees, and to pay the costs.

(d) Plus any other amount which this Court may deem just and equitable. (p. 6, Original Records)

WHEREFORE, the appealed decision of the lower court is REVERSED and SET ASIDE. A new judgment is hereby entered declaring plaintiffs-appellants as the rightful co-owners of the subject property and entitled to possession of 3/4 southern portion thereof; and defendant-appellee Nelson Nufable to 1/4 portion.

In their Answer, defendants contend: No award on damages. 4. Paragraph 4 is denied, the truth being that the late Angel Nufable was the exclusive owner of said property, that as such owner he mortgaged the same to the Development Bank of the Philippines on March 15, 1966, that said mortgage was foreclosed and the DBP became the successful bidder at the auction sale, that ownership was consolidated in the name of the DBP, and that defendant Nelson Nufable bought said property from the DBP thereafter. During this period, the plaintiffs never questioned the transactions which were public, never filed any third party claim nor attempted to redeem said property as redemptioners, and that said Deed of Sale, Annex "B" to the complaint, is fictitious, not being supported by any consideration; (pp. 20-21, id.)

No costs.

Defendants-appellees' Motion for Reconsideration was denied for lack of merit in the Resolution of the Court of Appeals 4 dated October 2, 1996.

Hence, the present petition. Petitioners raise the following grounds for the petition:

The Deed of Sale (Annex "B"), referred to by the parties is a notarized Deed of Sale, dated July 12, 1966 (marked as Exhibit "H") by virtue of which, spouses Angel and Aquilina Nufable, as vendors, sold 3/4 portion of the subject property to herein plaintiffs for and in consideration of P1,000.00 (Exh. "5"). 2

1. Honorable Court of Appeals erred in considering as controlling the probate of the Last Will and Testament of Esdras Nufable, the probate thereof not being an issue in this case;

On November 29, 1995, the Court of Appeals rendered judgment, the dispositive portion 3 of which reads:

2. The Honorable Court of Appeals erred in not considering the fact that the Development Bank of the Philippines became absolute, exclusive, legal and rightful owner of the land in question, from whom petitioner Nelson Nufable acquired the same by purchase and that, therefore, no award can be made in favor of private respondent unless and until the Development Bank of the

Philippines' title thereto is first declared null and void by the court.

The Court of Appeals, in its decision, stated that the trial court failed to take into consideration the probated will of the late Esdras Nufable bequeathing the subject property to all his four children. 5 In the present petition, petitioner present the issue of whether or not the Last Will and Testament of Esdras Nufable and its subsequent probate are pertinent and material to the question of the right of ownership of petitioner Nelson Nufable who purchased the land in question from, and as acquired property of, the Development Bank of the Philippines (DBP, for short). They contend that the probate of the Last Will Testament and of Esdras Nufable did not determine the ownership of the land in question as against third parties.1wphi1.nt

Poblacion Manjuyod, Negros Oriental remains undivided for community ownership but respecting conditions imposed therein (sic) in the will." 8 In paragraph 3 thereof, they stated that "they have no objection as to the manner of disposition of their share made by the testator, the expenses of the proceeding and that they have already taken possession of their respective shares in accordance with the will." Verily, it was the heirs of the late Esdras Nufable who agreed among themselves on the disposition of their shares. The probate court simply approved the agreement among the heirs which approval was necessary for the validity of any disposition of the decedent's estate. 9

As a general rule, courts in probate proceedings are limited only to passing upon the extrinsic validity of the will sought to be probated, the due execution thereof, the testator's testamentary capacity and the compliance with the requisites or solemnities prescribes by law. Said court at this stage of the proceedings is not called to rule on the rule on the intrinsic validity or efficacy of the will. 6 The question of the intrinsic validity of a will normally comes only after the court has declared that the will has been duly authenticated.

The records show that upon petition for probate filed by the heirs of the late Esdras Nufable, an Order dated March 30, 1966 was issued by then Court of First Instance of Negros Oriental, Branch II, admitting to probate the last will and testament executed by the decedent. 7 Thereafter, on June 6, 1966, the same court approved the Settlement of Estate submitted by the heirs of the late Esdras Nufable wherein they agreed "(T)hat the parcel land situated in

It should likewise be noted that the late Esdras Nufable died on August 9, 1965. When the entire property located at Manjuyod was mortgaged on March 15, 1966 by his son Angel Custodio with DBP, the other heirs of Esdras namely: Generosa, Vilfor and Marcelo had already acquired successional rights over the said property. This is so because of the principle contained in Article 777 of the Civil Code to the effect that the rights to the succession are transmitted from the moment of death of the decedent. Accordingly, for the purpose of transmission of rights, it does not matter whether the Last Will and Testament of the late Esdras Nufable was admitted on March 30, 1966 or thereafter or that the Settlement of Estate was approved on June 6, 1966 or months later. It is to be noted that the probated will of the late Esdras Nufable specifically referred to the subject property in stating that "the land situated in the Poblacion, Manjuyod, Negros Oriental, should not be divided because this must remain in common for them, but it is necessary to allow anyone of them brothers and sisters to construct a house therein." 10 It was therefor the will of the decedent that the subject property should undivided, although the restriction should not exceed twenty (20) years pursuant to Article 870 11 of the Civil Code.

Thus, when Angel Nufable and his spouses mortgaged the subject property to DBP on March 15, 1966, they had no right to mortgage the entire property. Angel's right over the subject property was limited only to 1/4 pro indiviso share. As co-owner of the subject property, Angel's right to sell, assign or mortgage is limited to that portion that may be allotted to him upon termination of the coownership. Well-entrenched is the rule that a co-owner can only alienate his pro indiviso share in the co-owned property. 12

Furthermore, the Deed of Sale dated June 17, 1966 marked as Exhibit "H" executed by spouses Angel and Aquilina Nufable in favor of respondents Generosa, Vilfor and Marcelo wherein the former sold, ceded and transferred back to the latter the 3/4 portion of the subject property bolsters respondents' claim that there was coownership. Petitioner Nelson himself claimed that he was aware of the aforesaid Deed of Sale. 18

The Court of Appeals did not err in ruling that Angel Custodio Nufable "had no right to mortgage the subject property in its entirety. His right to encumber said property was limited only to 1/4 pro indiviso share of the property in question." 13 Article 493 of the Civil Code spells out the rights or co-owners over a co-owned property. Pursuant to said Article, a co-owner shall have full ownership of his part and of the fruits and benefits pertaining thereto. He has the right to alienate, assign or mortgage it, and even substitute another person in its enjoyment. As a mere part owner, he cannot alienate the shares of the other co-owners. The prohibition is premised on the elementary rule that "no one can give what he does not have." 14

Anent the second ground of the petition, petitioners allege that the Development Bank of the Philippines acquired ownership of the land in question through foreclosure, purchase and consolidation of ownership. Petitioners argue that if petitioner Nelson Nufable had not bought said land from the DBP, private respondents, in order to acquire said property, must sue said bank for the recovery thereof, and in so doing, must allege grounds for the annulment of documents evidencing the bank's ownership thereof. Petitioners contend that since petitioner Nelson Nufable simply bought the whole land from the bank, they cannot be deprived of the ownership of 3/4 without making any pronouncement as to the legality or illegality of the bank's ownership of said land. It is argued that there was no evidence to warrant declaration of nullity of the bank's acquisition of said land; and that neither was there a finding by the court that the bank illegally acquired the said property.

Moreover, respondents stipulated that they were not aware of the mortgage by petitioners of the subject property. 15 This being the case, a co-owner does not lose his part ownership of a co-owned property when his share is mortgaged by another co-owner without the former's knowledge and consent 16 as in the case at bar. It has likewise been ruled that the mortgage of the inherited property is not binding against co-heirs who never benefitted. 17

As adverted to above, when the subject property was mortgaged by Angel Custodio, he had no right to mortgage the entire property but only with respect to his 1/4 pro indiviso share as the property was subject to the successional rights of the other heirs of the late Esdras. Moreover, in case of foreclosure; a sale would result in the transmission of title to the buyer which is feasible only if the seller can be in a position to convey ownership of the things sold. 19 And in one case, 20 it was held that a foreclosure would be ineffective unless the mortgagor has title to the property to be foreclosed.

Therefore, as regards the remaining 3/4 pro indiviso share, the same was held in trust for the party rightfully entitled thereto, 21 who are the private respondents herein.

requires that DBP be impleaded so that it can defend its sale to petitioner Nelson Nufable; and that it was the duty of private respondents, and not of petitioner Nelson, to implead the bank and ask for the annulment of documents evidencing the bank's ownership of the disputed land.

Pursuant to Article 1451 of the Civil Code, when land passes by succession to any person and he causes the legal title to be put in the name of another, a trust is established by implication of law for the benefit of the true owner. Likewise, under Article 1456 of the same Code, if property is acquired through mistake or fraud, the person obtaining it is, by force of law, considered a trustee of an implied trust for the benefit of the person from whom the property comes. In the case of Noel vs. Court of Appeals, 22 this Court held that "a buyer of a parcel of land at a public auction to satisfy a judgment against a widow acquired only one-half interest on the land corresponding to the share of the widow and the other half belonging to the heirs of her husband became impressed with a constructive trust in behalf of said heirs."

In the Rejoinder to the Reply, private respondents that the noninclusion of DBP as a "necessary party" was not questioned by petitioners from the time the Complaint was filed until the case was "finished." It was only after the adverse decision by the respondent Court of Appeals that petitioners raised the issue.

At the outset, it should be stated petitioners never raised this issue in their Answers and pursuant to Section 2, Rule 9 of the Rules of Court, defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived.

Neither does the fact that DBP succeeded in consolidating ownership over the subject property in its name terminate the existing co-ownership. Registration of property is not a means of acquiring ownership. 23 When the subject property was sold to and consolidated in the name of DBP, it being the winning bidder in the public auction, DBP merely held the 3/4 portion in trust for the private respondents. When petitioner Nelson purchased the said property, he merely stepped into the shoes of DBP and acquired whatever rights and obligations appertain thereto.

This brings us to the issue of whether or not the DBP should have been impleaded as party-defendant in the case at bar. Petitioners contend that DBP was never impleaded and that due process

Nonetheless, the rule is that indispensable parties, i.e., parties in interest without whom no final determination can be had of an action, shall be joined either as plaintiffs or defendants; the inclusion as a party, i.e., persons who are not indispensable but ought to be parties if complete relief is to be accorded as between those already parties, the court may, in its discretion, proceed in the action without making such persons parties, and the judgment rendered therein shall be without prejudice to the rights of such persons. 25 Proper parties, therefore, have been described as parties whose presence in necessary in order to adjudicate the whole controversy, but whose interests are so far separable that a final decree can be made in their absence without affecting them. 26 Any claim against a party may be severed and proceeded with separately. 27

The pivotal issue to be determined is whether DBP is an indispensable party in this case.

Private respondents do not question the legality of the foreclosure of the mortgaged property and the subsequent sale of the same to DBP. The subject property was already purchased by petitioner Nelson from DBP and latter, by such sale, transferred its rights and obligations to the former. Clearly, petitioners' interest in the controversy is distinct and separable from the interest of DBP and a final determination can be had of the action despite the noninclusion of DBP as party-defendant. Hence, DBP, not being an indispensable party, did not have to be impleaded in this case.

G.R. No. 111682 February 6, 1997 ZENAIDA REYES, petitioner, vs. COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, respondents. MENDOZA, J.:

WHEREFORE, there being no reversible error in the decision appealed from, the petition for review on certiorari is hereby DENIED.1wphi1.nt

RESOLUTION

SO ORDERED.

Vitug, Panganiban and Purisima, JJ., concur.

Romero, J., abroad, on official business leave.

This is a motion for reconsideration of the resolution dated November 29, 1995, of the Court, denying the petition for review of the decision, dated May 28, 1993, and the resolution, dated August 30, 1993, of the Court of Appeals 1 in CA-G.R. CR. No. 08410, affirming the conviction of petitioner Zenaida P. Reyes of falsification of public document. Petitioner's motion is based on her contention that because of her counsel's unexplained absences at the trial she was prevented from presenting evidence in her defense and therefore denied the due process of law.

The facts are as follows:

In an information filed on April 7, 1986 with the Regional Trial Court of Bulacan and later assigned to Branch 22 thereof as Criminal Case No. 9252-M, petitioner Zenaida Reyes was accused of falsifying a deed of sale of four (4) parcels of land "by feigning and signing the name of Pablo Floro, who could not affix his signature anymore due to age infirmity, on the said document as seller and causing it to appear that said Pablo Floro [had] participated in the execution of the said document when in truth and in fact, as said accused well knew, said deed of sale was not executed and signed by the said Pablo Floro, nor did he ever appear before any notary public for the purpose of acknowledging the deed above mentioned." 2

hearing to June 5, 1989 over the objection of the private prosecutor. Petitioner was warned that if she did not present her evidence on that date, she would be considered to have waived her right to do so. 6 But the hearing on June 5, 1989 had to be rescheduled again because petitioner's counsel, Atty. Tenorio, was absent. 7

Upon being arraigned, petitioner pleaded not guilty. Trial on the merits then followed. After the prosecution had rested its case, the presentation of the defense evidence was scheduled on February 6, 1989, which, however, was reset "for the last time" to March 10, 1989 due to petitioner's illness. 3 The hearing on March 10, 1989 was, however, cancelled also because of the absence of both the private prosecutor and defense counsel, Atty. Analuz Cristal-Tenorio. The new schedule was April 12, 1989. 4 However, Atty. Tenorio was again absent on April 12, 1989. Petitioner was also absent, but her husband appeared and submitted to the court a medical certificate that she was sick. The hearing on that date was therefore postponed to May 17, 1989 "[f]or the last time. " 5

On July 10, 1989, the new date of hearing, both petitioner and Atty. Tenorio were absent, so that on motion of private prosecutor, the court declared petitioner to have waived the right to present her evidence. 8 Four days later (on July 14, 1989), petitioner gave a medical certificate 9 stating that she was suffering from hypertension and rheumatism which required bed rest for at least 57 days. The court merely noted the medical certificate but maintained its previous order, on the ground that "the same is not a motion and [as] counsel was also not in Court during the last hearing, the Order of the Court dated July 10, 1989 to the effect that the presentation of defense evidence is considered waived, stands. " 10

Petitioner by herself moved for reconsideration, alleging that she failed to appear in court on July 10, 1989 because she was indisposed and had been unable to contact Atty. Tenorio. She asked for permission to present her evidence. Her motion, however, was denied by the court in its order of August 29, 1989 11 in which it also scheduled the promulgation of judgment on September 29, 1989.

On May 11, 1989, Atty. Tenorio moved for the postponement of the hearing from May 17, 1989 to June 5, 1989, allegedly because she had to leave for Malaybalay, Bukidnon to assist in the prosecution of her brother-in-law's killers. The trial court, while noting that the hearing on May 17, 1989 was "intransferrable in character," nonetheless granted Atty. Tenorio's motion and postponed the

On September 29, 1989, the court rendered its decision 12 finding petitioner guilty of falsification and sentencing her to 4 months of arresto mayor, as minimum, to 4 years and 2 months of prision correccional, as maximum, and to pay a fine of P5,000.00.

Petitioner through a new counsel, Atty. Ronolfo S. Pasamba, filed a notice of appeal. 13 On May 9, 1990, petitioner by herself filed a motion in the Court of Appeals for extension of 30 days to file her brief as appellant. 14 About the same time Atty. Pasamba also filed a motion for an extension of 45 days for the same purpose, but later asked to be relieved as petitioner's counsel on the ground that despite his request, petitioner did not give him the records of the case and confer with him but instead acted as her own counsel by filing her own motion for time to file brief.

she must have gone through law school as her handiwork is written in forensic style and is even better than the pleadings of some licensed advocates who are handling appealed cases or original special civil actions before this Court.

Under the Rules the grounds for new trial are

(a) That errors of law or irregularities have been committed during the trial prejudicial to the substantial nights of the accused; and

The Court of Appeals granted Atty. Pasamba's motion and required petitioner to submit the name and address of her new counsel within ten (10) days from notice. Petitioner instead filed a motion for new trial in lieu of appellant's brief, claiming that because of the negligence of her counsel, she had been deprived of her right to present evidence on her behalf in the trial court.

(b) That new and material evidence has been discovered which the accused could not with reasonable diligence have discovered and produced at the trial, and which if introduced and admitted, would probably change the judgment. (Rule 121, Section 2)

After the Solicitor General filed his comment, the Court of Appeals in its resolution dated January 15, 1992 denied petitioner's motion for new trial and gave her 30 days within which to file her appellant's brief. 15 The appellate court held:

There is not even a wee bit of a hint about the second ground.

All that appellant is invoking as ground for new trial is the policy of liberality in the application of the rules and the alleged negligence of her counsel.

So, in effect, what the accused would want of Us is to bend over backwards and in a gesture of liberality consider as an error of law or as an irregularity the trial court's conclusion that she was deemed to have waived her right to present evidence in her defense. In connection with this course of action she already filed before the trial court a motion for reconsideration: this was denied, whereupon the trial court proceeded to rendition of the judgment appealed from by the accused to this court.

Appellant, who has, in fact, prepared the motion herself, without the assistance of counsel, is probably a member of the Bar. If she is not,

We have meticulously gone over the entire record, and We find that

accused appellant was not at all deprived of her day in court or denied due process. She was afforded ample opportunity to present evidence in her defense.

the trial court's reconsideration.

ruling.

On

August

30,

1993

it

denied

Regardless of the nature of the offense charged, a criminal case, even if it involves only a light offense, the penalty for which might be mere censure, is a serious matter that deserves equally serious attention by the one accused. The appellant, it seems never gave to this case while it was still at the lower court the serious attention that it deserves. For good reason repeated absences of the accused and her counsel the trial court was eventually constrained to consider the accused to have waived the presentation of evidence in her defense. As pointed out by the Solicitor General, it is settled in our jurisprudence that dilatory moves by the accused that tend to defeat the expeditious termination of a criminal case is tantamount to trifling with the administration of justice that certainly can not and should not be condoned. (PP vs. Angco, 103 Phil. 33; PP vs. Dichoso, 96 SCRA 957)

Petitioner filed this case for review on certiorari, claiming that her conviction by the trial court was void because she was denied due process, since she was denied the opportunity to present evidence in her behalf. The Solicitor General filed his comment to which petitioner filed a reply. On November 29, 1995 this Court denied the petition for lack of merit. Hence this motion for reconsideration.

After due consideration of the motion and its supplement and the separate comments thereto by the respondents as well as petitioner's replies and private respondent's consolidated rejoinder, the Court now resolves to grant petitioner's motion for reconsideration.

Petitioner filed a "very urgent motion" for 90 days from February 22, 1992 to secure services of counsel to file her appellant's brief. The Court of Appeals gave petitioner 15 days from February 22, 1992, the last day of the extension previously granted her. The Court of Appeals stated that it had given petitioner notice to file brief as early as March 27, 1990, but "petitioner has been trifling with our judicial processes long enough."

On March 6, 1992, without the assistance of counsel, accusedappellant filed an appellant's brief. Thereafter the Solicitor General filed the appellee's brief to which petitioner filed a reply brief. On May 28, 1993, the Court of Appeals rendered its decision, affirming

First. The issue in this case is whether the trial court properly held petitioner to have waived the right to present evidence because of her failure to proceed despite several postponements granted to her. To be sure, the postponement of the trial of a case to allow the presentation of evidence of a party is a matter which lies in the discretion of the trial court, but it is a discretion which must be exercised wisely, considering the peculiar circumstances obtaining in each case and with a view to doing substantial justice. 16 In the case at bar, hearings were scheduled for die presentation of petitioner's evidence on six different dates, to wit: (1) February 6, 1989; (2) March 10, 1989; (3) April 12, 1989; (4) May 17, 1989; (5) June 5, 1989; and (6) July 10, 1989. Petitioner was absent thrice, i.e., on February 6, 1989, April 12, 1989, and July 10, 1989. On the first date, petitioner could not come because she was sick and her counsel so informed the court. She was absent also on June 5, 1989

and July 10, 1989 because of illness (hypertension and rheumatism). Thus, while petitioner's absences were explained, those of her counsel were not. Atty. Tenorio simply disappeared without a trace, despite warning to counsel that her failure to present evidence for her client on June 5, 1989 would be considered a waiver of the latter's right to present her evidence. But counsel failed to heed the warning. Petitioner had to soldier on and, by herself, had to plead with the court for a chance to present her evidence. Contrary to what the appellate court thought in affirming petitioner's conviction, this was not the case of a woman who treated the criminal proceedings against her with cavalier disdain. Indeed, we do not think that petitioner's absences were so many, capricious, or egregious as to indubitably indicate an attempt to stall the proceedings of the criminal case as was the case in People v. Angco 17 and People v. Dichoso. 18 Petitioner might have tried to delay the filing of her appellant's brief, but her effort can be attributed to an understandable desire to be allowed to present her evidence. Hence, the filing of a motion for new trial. Even in her present petition before this Court petitioner's prayer is not that she be exonerated but only that she be given the chance to prove her innocence by being allowed to present her evidence.

Private respondent's contention is exaggerated. Of course there is a limit to petitioner's credibility should she repeat what had happened here just for delay, not to mention that she would be taking a big risk of losing her defense. As for the private respondent's argument that petitioner should have gotten another lawyer, only with the benefit of hindsight does this course appear to be the only tenable one to take. Petitioner might have thought that her counsel would be more sedulous in her behalf. Or perhaps petitioner tried to get another counsel, but failed and, left with no choice, stuck it out with Atty. Tenorio and simply hoped for the best rather than be left without a counsel. In any case, the fact that on May 17, 1989 and June 5, 1989 petitioner was present even when counsel was absent tends to negate an intention to delay the criminal proceedings.

Respondent People and the counsel for the private respondent oppose petitioner's motion. They point out that, unlike the cases 19 which petitioner cites in support of her motion, petitioner herself was negligent. They contend that she could not have been unaware of the absences of her lawyer but despite that she did nothing to protect her interests. Private respondent argues that "if granted a second chance to present her side, nothing will stop the petitioner from once again engaging the services of her erstwhile absentee counsel. Anyway, after another 10 years of litigation, she can easily sound her reliable refrain: 'I was denied due process! I was ready to present my evidence, but my lawyer was absent for five consecutive times'. . . ."

It was Atty. Tenorio's absences, then, rather than petitioner's, which appear to be the cause for the defense's failure to present its evidence. Atty. Tenorio's negligence did not consist in error of procedure or even a lapse in strategy but something as basic as failing to appear in court despite clear warning that such failure would amount to waiver of her client's right to present evidence in her defense.

Keeping in mind that this case involves personal liberty, the negligence of counsel was certainly so gross that it should not be allowed to prejudice petitioner's constitutional right to be heard. The judicial conscience certainly cannot rest easy on a conviction based solely on the evidence of the prosecution just because the presentation of the defense evidence had been barred by technicality. Rigid application of rules must yield to the duty of courts to render justice where justice is due to secure to every individual all possible legal means to prove his innocence of a crime

with which he or she might be charged. 20

Only last year, this Court set aside its decision after finding that the right of the accused to due process had been violated. In De Guzman v. Sandiganbayan, 21 this Court set aside its decision affirming petitioner's conviction by the Sandiganbayan and its resolution denying reconsideration, after being shown that petitioner's conviction had been brought about by his counsel's gross ignorance of law and procedure. The Court held:

Petitioner's present dilemma is certainly not something reducible to pesos and centavos. No less than his liberty is at stake here. And he is just about to lose it simply because his former lawyers pursued a carelessly contrived procedural strategy of insisting on what has already become an imprudent remedy, which thus forbade petitioner from offering his evidence all the while available for presentation before the Sandiganbayan. Under the circumstances, higher interests of justice and equity demand that petitioner be not penalized for the costly importunings of his previous lawyers based on the same principles why this Court had, on many occasions where it granted new trial, excused parties from the negligence or mistakes of counsel. To cling to the general rule in this case is only to condone rather than rectify a serious injustice to petitioners whose only fault was to repose his faith and entrust his innocence to his previous lawyers. . . .

In another case, People v. Del Mundo, 22 in which the accused was convicted of rape in six cases and sentenced to reclusion perpetua on five of them and to death on the sixth, this Court ordered a new trial after it was shown that complainant had executed prior to accused's conviction an affidavit of desistance, while an NBI medicolegal report given after such conviction found that complainant's "physical virginity preserved." The report belied the contrary finding of the city health officer on which the trial court relied in convicting the accused. Although the NBI report did not constitute newlydiscovered evidence, a new trial was nonetheless ordered "on the broader ground of substantial justice [as] the rule for granting a motion for new trial, among others, should be liberally construed to assist the parties in obtaining a just and speedy determination of their rights. . . . Court litigations are primarily for the search for truth, and a liberal interpretation of the rules by which both parties are given the fullest opportunity to adduce proofs is the best way to ferret out such truth."

Reconsideration of the resolution in this case is compelled by these precedents. Indeed, to deny petitioner the opportunity to present her evidence on the merest chance that she might be innocent would be to disregard the wisdom that it is better to acquit ten guilty individuals than to convict one innocent person. The Court is as aware as anyone of the need for the speedy disposition of cases. At the same time, however, it has ever been mindful of its responsibility as the highest tribunal of justice to see to it that the paramount interests of justice are not sacrificed for the sake of speed and efficiency. As Justice Teehankee wrote: 23

The Court remanded the case to the Sandiganbayan for reception and appreciation of petitioner's evidence.

The Court has consistently maintained that although a speedy determination of an action implies a speedy trial, speed is not the chief objective of a trial. Careful and deliberate consideration for the administration of justice, a genuine respect for the rights of all

parties and the requirements of procedural due process and an adherence to the Court's standing admonition that the discretion granted judges in the granting or denial of motions for postponement and the setting aside of denial orders previously issued "should always be predicated on the consideration that more than the mere convenience of the courts or of the parties in the case, the ends of justice and fairness would be served thereby" are more important than a race to end the trial.

evidence by her lonesome, and that could be the reason why she hesitated from doing so when she found herself without the assistance of counsel and not because petitioner tried to delay the proceedings and obstruct the course of justice.

Second. In denying petitioner's plea for a chance to present her evidence, the Court of Appeals observed that petitioner has more than a layman's acquaintance with the law, having been able to prepare and file her own motion for new trial and appellant's brief, to be given the benefit of the doubt. But even lawyers, who are parties in a case, need the guiding hand of counsel. Skill in drafting pleadings (which is practically the only "lawyerly" thing petitioner did) is vastly different from skill needed in the courtroom. Preparing pleadings can be done at leisure with the luxury of consultation, either of books or of people. Trial work, however, demands more. It requires the ability to think fast on one's feet and the psychologist's feel for the witness' mood and motive. As then Chief Justice Moran said for the Court in People v. Holgado: 24

In sum, it is better to allow petitioner another chance to present her evidence than to let her conviction stand based solely on the evidence of the prosecution. In accordance with Rule 121, 6, 25 the evidence of the prosecution shall be understood preserved, subject to the right of the prosecution to supplement it and/or to rebut the evidence which petitioner may present.

WHEREFORE, the motion for reconsideration of the resolution of November 29, 1995 is GRANTED and the decision dated May 28, 1993 of the Court of Appeals and that of the Regional Trial Court of Bulacan, Branch 22 dated September 29, 1989 in Criminal Case No. 9252-M are SET ASIDE and this case is REMANDED to the Regional Trial Court of Bulacan for a new trial for the purpose of allowing petitioner to present evidence in her defense with directive to the court thereafter to decide the case with all deliberate speed.

Even the most intelligent or educated man may have no skill in the science of the law, particularly in the rules of procedure, and, without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence.

SO ORDERED.

Regalado, Romero, Puno and Torres, Jr., JJ., concur.

It is entirely probable that, forced to be her own lawyer, petitioner nonetheless felt some inadequacy and experienced some moments of doubt whether she could go through the ordeal of presenting her

POSTIGO VS. BORJAL 13 Phil 240

Nicolas Villaflor, a wealthy man of Castillejos, Zambales, executed a will in Spanish in his own handwriting, devising and bequeathing in favor of his wife, Dona Fausta Nepomuceno, one-half of all his real and personal properties, giving the other half to his brother Don Fausto Villaflor. Clause 6th, containing the institution of heirs, reads as follows: . SEXTO En virtud de las facultades que me conceden las leyes, instituyo per mis unicos y universales herederos de todos mis derechos y acciones a mi hermano D. Fausto Villaflor y a mi esposa Da. Fausta Nepomuceno para que partan todos mis bienes que me pertenescan, en iguales partes, para despues de mi muerte, exceptuando las donaciones y legados que, abajo mi mas expontanea voluntad, lo hago en la forma siguiente: .

G.R. No. L-15737

February 28, 1962

LEONOR VILLAFLOR VDA. DE VILLANUEVA, plaintiff-appellant, vs. DELFIN N. JUICO, in his capacity as Judicial Administrator of the testate estate of FAUSTA NEPOMUCENO, defendantappellee. Amado G. Salazar for plaintiff-appellant. Sycip, Salazar, Luna and Associates for defendant-appellee. REYES, J.B.L., J.: Subject to this direct appeal to us on points of law is the decision of the Court of First Instance of Rizal, in its Civil Case No. Q-2809, dismissing plaintiff-appellant's complaint for the recovery of certain properties that were originally owned by the plaintiff's granduncle, Nicolas Villaflor, and which he granted to his widow, Doa Fausta Nepomuceno, bequeathing to her "su uso y posesion mientras viva y no se case en segundas nupcias". The following facts appear of record: On October 9, 1908, Don

SEPTIMO: Lego para dispues de mi muerte a mi esposa Da. Fausta Nepomuceno, en prueba de mi amor y carino, los bienes, alhajas y muebles que a continuacion se expresan; . OCTAVO: Que estos legades disfrutaria mi referida esposa Da. Fausta Nepomuceno su uso y posesion mientras viva y no se case en segundas nupcias, de la contrario, pasara a ser propiedad estos dichos legados de mi sobrina nieta Leonor Villaflor. The 12th clause of the will provided, however, that Clauses 6th and 7th thereof would be deemed annulled from the moment he bore any child with Doa Fausta Nepomuceno. Said Clause 12th reads as follows: . DUODECIMO: Quedan anulados las parrafos 6.0 y 7.0 de este testamento que tratan de institucion de herederos y los legados que se haran despues de mi muerte a favor de mi esposa, en el momento que podre tener la dicha de contrar con hijo y hijos legitimos o legitimados, pues estos, conforme a ley seran mis herederos.

Don Nicolas Villaflor died on March 3, 1922, without begetting any child with his wife Doa Fausta Nepomuceno. The latter, already a widow, thereupon instituted Special Proceeding No. 203 of the Court of First Instance of Zambales, for the settlement of her husband's estate and in that proceeding, she was appointed judicial administratrix. In due course of administration, she submitted a project of partition, now Exhibit "E". In the order of November 24, 1924, now exhibit "C", the probate court approved the project of partition and declared the proceeding closed. As the project of partition, Exhibit "E", now shows Doa Fausta Nepomuceno received by virtue thereof the ownership and possession of a considerable amount of real and personal estate. By virtue also of the said project of partition, she received the use and possession of all the real and personal properties mentioned and referred to in Clause 7th of the will. The order approving the project of partition (Exh. "C"), however, expressly provided that approval thereof was "sin perjuicio de lo dispuesto en la clausula 8.o del testamento de Nicolas Villaflor." . On May 1, 1956, Doa Fausta Nepomuceno died without having contracted a second marriage, and without having begotten any child with the deceased Nicolas Villaflor. Her estate is now being settled in Special Proceeding No. Q-1563 in the lower court, with the defendant Delfin N. Juico as the duly appointed and qualified judicial administrator. The plaintiff Leonor Villaflor Vda. de Villanueva is admitted to be the same Leonor Villaflor mentioned by Don Nicolas Villaflor in his will as his "sobrina nieta Leonor Villaflor". Plaintiff Leonor Villaflor instituted the present action against the administrator of the estate of the widow Fausta Nepomuceno, on February 8, 1958, contending that upon the widow's death, said plaintiff became vested with the ownership of the real and personal properties bequeathed by the late Nicolas Villaflor to clause 7 of his will, pursuant to its eight (8th) clause. Defendant's position, adopted by the trial court, is that the title to the properties aforesaid became absolutely vested in the widow upon her death, on account of the fact that she never remarried. We agree with appellant that the plain desire and intent of the

testator, as manifested in clause 8 of his testament, was to invest his widow with only a usufruct or life tenure in the properties described in the seventh clause, subject to the further condition (admitted by the appellee) that if the widow remarried, her rights would thereupon cease, even during her own lifetime. That the widow was meant to have no more than a life interest in those properties, even if she did not remarry at all, is evident from the expressions used by the deceased "uso y posesion mientras viva" (use and possession while alive) in which the first half of the phrase "uso y posesion" instead of "dominio" or "propiedad") reinforces the second ("mientras viva"). The testator plainly did not give his widow the full ownership of these particular properties, but only the right to their possession and use (or enjoyment) during her lifetime. This is in contrast with the remainder of the estate in which she was instituted universal heir together with the testator's brother (clause 6). 1wph1.t SEXTO: En virtud de las facultades que me conceden las leyes, instituyo por mis unicos y universales herederos de todos mis derechos y acciones a mi hermano D. Fausto Villaflor y a mi esposa Da. Fausta Nepomuceno para que parten todos mis bienes que me pertenescan, en iguales partes, para despues de mi muerte, exceptuando las donaciones y legados que, abajo mi mas expontanea voluntad, lo hago en la forma siguiente. The court below, in holding that the appellant Leonor Villaflor, as reversionary legatee, could succeed to the properties bequeathed by clause 7 of the testament only in the event that the widow remarried, has unwarrantedly discarded the expression "mientras viva," and considered the words "uso y posesion" as equivalent to "dominio" (ownership). In so doing, the trial court violated Article 791 of the Civil Code of the Philippines, as well as section 59 of Rule 123 of the Rules of Court. ART. 791. The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative; and of two modes of interpreting a will, that one is to be preferred which will prevent intestacy." .

SEC. 59. Instrument construed so as to give effect to all provisions. In the construction of an instrument where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all." . Speculation as to the motives of the testator in imposing the conditions contained in clause 7 of his testament should not be allowed to obscure the clear and unambiguous meaning of his plain words, which are over the primary source in ascertaining his intent. It is well to note that if the testator had intended to impose as sole condition the non-remarriage of his widow, the words "uso y posesion mientras viva" would have been unnecessary, since the widow could only remarry during her own lifetime. The Civil Code, in Article 790, p. 1 (Article 675 of the Code of 1889), expressly enjoins the following: . ART. 790. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be gathered, and that other can be ascertained." . Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that the will was drawn solely by the testator, and that he was unacquainted with such technical sense. (675a) In consonance with this rule, this Supreme Court has laid the doctrine in In re Estate of Calderon, 26 Phil., 233, that the intention and wishes of the testator, when clearly expressed in his will, constitute the fixed law of interpretation, and all questions raised at the trial, relative to its execution and fulfillment, must be settled in accordance therewith, following the plain and literal meaning of the testator's words, unless it clearly appears that his intention was otherwise. The same rule is adopted by the Supreme Court of Spain (TS. Sent. 20 Marzo 1918; 28 Mayo 1918; 30 Abril 1913; 16 Enero 1915; 23 Oct. 1925).

La voluntad del testador, clara, precisa y constantemente expresada al ordenar su ultimo voluntad, es ley unica, imperativa y obligatoria que han de obedecer y cumplir fieldmente albaceas, legatarios y heredera, hoy sus sucesores, sin que esa voluntad patente, que no ha menester de interpretaciones, pues no ofrece la menor duda, pueda sustituirse, pues no ofrece la menor duda, pueda sustituirse por ningun otro criterio de alguna de los interesados, ni tampoco por el judicial. (Tribunal Supremo of Spain, Sent. 20 March 1918) . The American decisions invoked by appellee in his brief inapplicable, because they involve cases where the only condition imposed on the legatee was that she should remain a widow. As already shown, the testament of Don Nicolas Villaflor clearly and unmistakably provided that his widow should have the possession and use of the legacies while alive and did not remarry. It necessarily follows that by the express provisions of the 8th clause of his will, the legacies should pass to the testator's "sobrinanieta", appellant herein, upon the widow's death, even if the widow never remarried in her lifetime. Consequently, the widow had no right to retain or dispose of the aforesaid properties, and her estate is accountable to the reversionary legatee for their return, unless they had been lost due to fortuitous event, or for their value should rights of innocent third parties have intervened. PREMISES CONSIDERED, the decision appealed from is reversed, and the appellant Leonor Villaflor Vda. de VILLANUEVA is declared entitled to the ownership and fruits of the properties described in clause 7 of the will or testament, from the date of the death of Doa Fausta Nepomuceno. The records are ordered remanded to the court of origin for liquidation, accounting and further proceedings conformably to this decision. Costs against the Administratorappellee. Bengzon, C.J., Padilla, Bautista Angelo, Concepcion, Barrera, Paredes, Dizon and De Leon, JJ., concur. Labrador, J., took no part.

Aznar v Garcia 7 scra 95 Facts: Edward S. Christensen, though born in New York, migrated to California where he resided and consequently was considered a California Citizen for a period of nine years to 1913. He came to the Philippines where he became a domiciliary until the time of his death. However, during the entire period of his residence in this country, he had always considered himself as a citizen of California. In his will, executed on March 5, 1951, he instituted an acknowledged natural daughter, Maria Lucy Christensen as his only heir but left a legacy of some money in favor of Helen Christensen Garcia who, in a decision rendered by the Supreme Court had been declared as an acknowledged natural daughter of his. Counsel of Helen claims that under Art. 16 (2) of the civil code, California law should be applied, the matter is returned back to the law of domicile, that Philippine law is ultimately applicable, that the share of Helen must be increased in view of successional rights of illegitimate children under Philippine laws. On the other hand, counsel for daughter Maria , in as much that it is clear under Art, 16 (2) of the Mew Civil Code, the national of the deceased must apply, our courts must apply internal law of California on the matter. Under California law, there are no compulsory heirs and consequently a testator should dispose any property possessed by him in absolute dominion. Held:

Whether Philippine Law or California Law should apply.

The Supreme Court deciding to grant more successional rights to Helen Christensen Garcia said in effect that there be two rules in California on the matter. The conflict rule which should apply to Californians outside the California, and The internal Law which should apply to California domiciles in califronia. The California conflict rule, found on Art. 946 of the California Civil code States that if there is no law to the contrary in the place where personal property is situated, it is deemed to follow the decree of its owner and is governed by the law of the domicile. Christensen being domiciled outside california, the law of his domicile, the Philippines is ought to be followed. Wherefore, the decision appealed is reversed and case is remanded to the lower court with instructions that partition be made as that of the Philippine law provides. G.R. Nos. L-11483-11484 February 14, 1958

Issue:

In the matter of the Testate Estate of the deceased Edward E. Christensen, ADOLFO CRUZ AZNAR, petitioner. MARIA LUCY CHRISTENSEN DANEY and ADOLFO CRUZ AZNAR, petitioners-appellants, vs. MARIA HELEN CHRISTENSEN GARCIA and BERNARDA

CAMPOREDONDO, oppositors-appellees. BERNARDA CAMPOREDONDO, plaintiff-appellee, vs. ADOLFO CRUZ AZNAR, as Executor of the Deceased EDWARD E. CHRISTENSEN, defendant-appellant. M. R. Sotelo for appellants. Leopoldo M. abellera and Amado A. Munda for appellee Maria Heliuen Christensen Garcia. Pedro P. Suarez and Oscar Breva for appellee Bernarda Camporedondo. FELIX, J.: From the records of the above-entitled cases, it appears that as of 1913,Edward E. Christensen, an American citizen, was already residing in Davao and on the following year became the manager of Mindanao Estates located in the municipality of Padada of the same province. At a certain time, which the lower court placed at 1917, a group of laborers recruited from Argao, Cebu, arrived to work in the said plantation. Among the group was a young girl,Bernarda Camporendondo, who became an assistant to the cook. Thereafter, thegirl and Edward E. Christensen, who was also unmarried staring living together as husband and wife and although the records failed to establishthe exact date when such relationship commenced, the lower court found the same to have been continous for over 30 years until the death of Christensen occurecd on April 30, 1953. Out of said relations, 2 children, Lucy and Helen Christensen, were allegedly born. G. R. NO. L-11484. Upon the demise of the American, who had left a considerable amount of properties his will naming Adolfo Cruz Aznar as executor was duly presented for probate in court and became the subject of Special Proceedings No. 622 of the Court of First Instance of Davao. Said will contains, among others, the following provisions:

xxx

xxx

xxx.

3. I declare . . . that I have but one (1) child, named MARIA LUCY CHRISTENSEN (now Mrs. Bernard Daney), who was born in the Philippines about twenty-eight years ago, and who is now residing at No. 665 Rodger Young Village, Los Angeles, California, U.S.A. 4. I further declare that I have no living ascendants, andno descendantsexcept my above named daughter, MARIA LUCY CHRISTENSEN DANEY. xxx xxx xxx.

7. I give, devise and bequeath unto MARIA LUCY CHRISTENSEN, now married toEduardo Garcia, about eighteen years of age and who, notwithstanding the factthat she was baptized Christensen, is not in any way related to me, nor hasshe been at any time adopted to me, and who, from all information I have now resides in Egipt, Digos, Davao, Philippines, the sum of THREEE THOUSAND SIXHUNDRED PESOS (P3,600) Philippine Currency, the same to be deposited in trustfor said Maria Lucy Christensen with the Davao Branch of the PhilippineNational Bank, and paid to her at the rate of One Hundred Pesos (P100), Philippine Currency per month until the the principal thereof as well as any interest which may have accrued thereon, is exhausted. 8. I give devise and bequeath unto BERNARDA CAMPORENDONDO, now residing inPadada, Davao, Philippines, the sum of One Thousand Pesos (P1,000), Philippine Currency. xxx xxx xxx.

12. I hereby give, devise and bequeath, unto my wellbeloved daughter, the said MARIA Lucy CHRISTENSEN DANEY (Mrs. Bernard Daney), now residing as aforesaid at No. 665 Rodger Young Village Los Angeles, California, U.S.A., all the

income from the rest, remainder, and residue of my property and estate, real, personal and/or mixed, of whatsoever kind or character, andwheresover situated; of which I may be possessed at any death and which mayhave come to me from any source whatsoever, during her lifetime,Provided, honvever, that should the said MARIA LUCY CHRISTENSEN DANEY at any time prior to her decease having living issue, then, and in that event, the life interest herein given shall terminate, and if so terminated, then I give, devise, and bequeath to my said daughter, the said MARIA LUCY CHRISTENSEN DANEY, the rest remainder and residue of my property, with the same force and effectas if I had originally so given, devised and bequeathedit to her; and provided, further, that should be said Maria Lucy ChristensenDaney die without living issue then, and in that event, I give, devise and bequeath all the rest, remainder and residue of my property, one-half (1/2) to my well-beloved sister, Mrs. CARRIE LOIUSE C. BORTON, now residing at No. 2124 Twentieth Street, Bakersfield, California, U.S.A. and one-half (1/2) to the children of my deceased brother, JOSEPH C. CRISTENSEN, . . . 13. I hereby nominate and appoint Mr Adolfo Cruz Aznar, of Davao City, Philippines, my executor, and the executor of this, my last will and testament. . . . (Exh. A). Oppositions to the probate of this will were separately filed by Maria Helen Christensen Garcia and Bernarda Camporendondo, the first contending that thewill lacked the formalities required by law; that granting that he had, thedispositions made therein were illegal because although she and Lucy Christensen were both children had by the deceased with Bernarda Camporendondo, yet she was given only a meager sum of P3,600 out of an estate valued at $485,000 while Lucy would get the rest of the properties;and that the petitioner Adolfo Cruz Aznar was not qualified to be appointed as administrator of the estate because he had an interest adverse to thatof the estate. It was therefore prayed by his oppositor that the application for probate be denied and the will disallowed; that the

proceeding be declared intestate and that another disinterested person be appointed as administrator. Bernarda Camporedondo, on the other hand, claimed ownership over one-halfof the entire estate in virtue of her relationship with the deceased, it being alleged that she and the testator having lived together as husband andwife continuously for a period of over 30 years, the properties acquired during such cohabitation should be governed by the rules on co-ownership. This opposition was dismissed by the probate court on the ground that shehad no right to intervene in said proceeding, for as such common-law wife she had no successional right that might be affected by the probate of thewill, and likewise, she could not be allowed to establish her title and co-ownership over the properties therein for such questions must be ventilated in a court of general jurisdiction. In view of this ruling of the Court and in order to attain the purpose sought by her overruled opposition Bernarda Camporedondo had to institute, as she did institute Civil Case No. 1076 of the Court of First Instance of Davao (G.R. No. L-11483) which we will consider and discuss hereinafter. In the meantime, Adolfo Cruz Aznar was appointed special adminsitrator of the estate after filing a bond for P5,000 pending the appointment of a regular one, and letters of special administrition were correspondingly issued to him on May 21, 1953. The records further show that subsequent to her original opposition. Helen Christensen Garcia filed a supplemental opposition and motion to declare her an acknowledged natural child of Edward E. Christensen, alleging that shewas conceived during the time when her mother Bernarda Camporendondo was living with the deceased as his common-law wife; that she had been in continous possession of the status of a natural child of the deceased; thatahe had in her favor evidence and/or proof that Edward Christensen was her father; and that she and Lucy had the same civil status as children of the decedent and Bernarda Camporedondo. This motion was opposed jointly by the executor and Maria Lucy Christensen Daney asserting that before, during and after the conception and birth of Helen Christensen Garcia, her mother was generally known to be carrying relations with 3 different men; that during the lifetime of the

decedent and even years before his death, Edward Christensen verbally as well as in writing disavowed relationship with said oppositor; that oppositor appropriated and used the surname Christensen illegally and without permission from the deceased. Thus they prayed the Court that the will be allowed; that Maria Helen Christensen Garcia be declared not in any way related to the deceased; and that the motion of said oppositor be denied. After due hearing, the lower court in a decision dated February 28, 1953, found that oppositor Maria Helen Cristensen had been in continous possession of the status of a natural child of the deceased Edward Christensen notwithstanding the fact that she was disowned by him in his will, for such action must have been brought about by the latter's disaproval of said oppositor's marriage to a man he did not like. But taking into considerationthat such possession of the status of a natural child did not itself constitute acknowledgment but may only be availed of to compel acknowledgment, the lower Court directed Maria Lucy Christensen Daney toacknowledge the oppositor as a natural child of Edward E. Christensen. Thewill was, however, allowed the letters testamentary consequently issued toAdolfo Cruz Aznar, the executor named therein. From the portion of the decision requiring Lucy Christensen to acknowledge Helen as a natural child of the testator, the former and the executor interposed an appeal to the Court of Appeals (CA-G. R. No. 13421R), but the appellate tribunal elevatedthe same to Us on the ground that the case involves an estate the value of which far exceeds P50,000.00 and thus falls within the exclusive appellate jurisdiction of this Court pursuant to Section 17 (5), Republic Act No. 296. The principal issue in this litigation is whether the lower court erred in finding that the oppositor Maria Helen Christensen Garcia had been in continous possession of the status of a natural child of the deceased EdwardE. Christensen and in directing Maria Lucy Christensen Daney, recognizeddaughter and instituted heirs of the decedent, to acknowledge the former assuch natural child. Maria Lucy Christensen was born on April 25, 1922, and Maria Helen Christensen on July 2, 1934, of the same mother, Bernarda Camporedondo, during the period when the latter was publicly known to have been living as common-law wife of Edward E.

Chrisiensen. From the facts of the case there can be no question as to Lucy's parentage, but controversy arose when Edward Christensen, in making his last will and testament, disavowed such paternity to Helen and gave her only a legacy of P3,600. ln the course of the proceeding for the probate of the will (Exh, A), Helen introduced documentary and testimonial evidence to support her claim that she, Lucy,was a natural child of the deceased and, therefore, entitled to the hereditaryshare corresponding to such descendant. Several witness testified in herfavor, including the mother Bernarda Camporendondo, her former teachers andother residents of the community, tending to prove that she was known in the locality as a child of the testator and was introduced by the latter to the circle of his friends and acquaintances as his daughter. Family portraits, greeting cards and letters were likewise presented to bolster herassertion that she had always been treated by the deceased and by Lucy herself as a member of the family. Lucy Christensen and Adolfo Cruz Aznar, as executor, tried to repudiate herclaim by introducing evidence to prove that on or about the period when shewas conceived and born, her mother was carrying an affair with another man,Zosimo Silva, a former laborer in her Paligue plantation. Silva executed an affidavit and even took the witness stand to testify to this effect. Appellants also strived to show that the defendant's solicitations for Helen's welfare and the help extended to her merely sprang out generosity and hammered on the fact that on several occasions, the deceased disclaimed any relationship with her (Exh. O-Daney, Exh. Q-Daney, Exh. Z-Daney, Exh. 8-Helen). Going over the evidence adduced during the trial, it appears indubitable that on or about the period when Helen was born, Bernarda Camporendondo had established residence at her plantation at Paligue, Davao, and that although Edward Christensen stayed in Davao City to manage his merchandising business, he spent the weekends with the former and their child Lucy in the Christensenplantation. Even granting that Zosimo Silva at his stage fitted himself intothe picture, it cannot be denied that Helen's mother and the deceased weregenerally and publicly known to be living together as husband and wife. Thismust have been the reason why Christensen from Helen's birth in 1934 providedfor her

maintenance; shouldered the expenses for her education to the extentthat she was even enrolled as an intern in an exclusive college for girls inManila; tolerated or allowed her carrying the surname "Christensen", and ineffect gaver her the attention and care that a father would only do to this offspring. We should take note that nothing appears on record to show thatChristensen ever entertained any doubt or disputed Helen's paternity. Hisrepudations of her relationship with him came about only after he andBernarda Comperodondo parted ways in March, 1950, and apparently after Helentook sides with her mother. Furthermore, it seems that despite that decedent's desire that she continue her studies, Helen ignored the same andgot married to a man for Christensen held no high esteem. We may state at hisjuncture that while it is true that herein appellants introduced witnesses todisprove oppositor'r claim, the lower Court that had the opportunity to observe the conduct of the witnesses while testifying and could better gaugetheir credibility and impartiality in the case, arrived at the conclusion that Maria Helen Christensen had established that she had been in continouspossessions of the status of a natural child of the deceased. Considering the preponderant evidence on record, We see no reason to reverse said ruling.The testator' lastacts cannot be made the criterion in determining whether oppositor was his child or not, for human frailty and parental arrogance maydraw a person to adopt unnatural or harsh measures against an erring child orone who displeases just so the weight of his authority could be felt. In theconsideration of a claim that one is a natural child, the attitude or directacts of the person against whom such action is directed or that of his family before the controversy arose or during his lifetime if he predeceases the claimant, and not a single opportunity or an isolated occasions but as a whole, must be taken into account. The possession of such status is one of the cases that gives rise to the right, in favor of the child, of coumpulsaryrecognition. (Art. 283, Civil Code). The lower Court, however, after making its finding directed Maria Lucy Christensen Daney, an heir of the decedent, to recognize oppositor as a natural child of the deceased. This seems improper. The Civil Code for 2 kinds of acknowledgement of a natural child: voluntary and compulsory. In the first instance, which may be effected in the record of birth, a will, a statement before a court of record or in an authentic writing (Art. 278,Civil Code), court

intervention is very nil and not altogether wanting, whereas in the second, judicial pronouncement is essential, and while it is true that the effect of a voluntary and a compulsory acknowledgment onthe right of the child so recognized is the same, to maintain the view of thelower Court would eliminate the distinction between voluntary acts and those brought about by judicial dicta. And if We consider that in the case, where, the presumed parent dies ahead of the child and action for compulsory recogniton is brought against the heirs of the deceased, as in the instant case, the situation would take absurd turn, for the heirs would be compelled to recognize such child as a natural child of the deceased without a properprovision of the law, for as it now stands, the Civil Code only requires a declaration by the court of the child's status as a natural child of the parent who, if living, would be compelled to recognize his offspring as such.Therefore, We hold that in cases of compulsory recognition, as in the case at bar, it would be sufficient that a competent court, after taking into account all the evidence on record, would declare that under any of the circumstances specified by Article 283 of the Civil Code, a child has acquired the status of a natural child of the presumptive parent and as such is entitled to all rights granted it by law, for such declaration is by itself already a judicial recognition of the paternity of the parent concerned which is her against whom the action is directed, are bound to respect. G.R. No. L-11483 Coming now to Civil Case No. 1076 of the Court of First Instance of Davao, Bernarda Camporendondo claimed in her complaint 1/2 of the properties of thedeceased as co-owner thereof in virtue of her relations with the deceased. She alleged as basis for action that she and the deceased Edward E. Christensen had lived and cohabitated as husband and wife, continously and openly for a period for more than 30 years; that within said period, plaintiff and the deceased acquired real and personal properties through their common effort and industry; and that in virtue of such relationship, she was a coowner of said properties. As the executor refused to account forand deliver the share allegedly belonging to her despite her repeated demands, she prayed the court that said executor be ordered to submit an inventory and render an accounting of the entire estate of the deceased;to divide the same into 2 equal parts and declare that

one of them lawfully belonged to plaintiff; and for such other reliefs as may be deemed just and equitable in the premises. In his answer, the executor denied the avermentsof the complaint, contending that the decedent was the sole owner of the properties left by him as they were acquired through his own efforts; thatplaintiff had never been a co-owner of any property acquired or possessed by the late Edward christensen during his lifetime; that the personal relationship between plaintiff and the deceased was purely clandestinebecause the former habitually lived in her plantation at Paligue, Davao, from the time she acquired the same in 1928; that she also maintained relations with 2 other men; and that the claim of plaintiff would violate the provisions of Article 2253 of the Civil Code as the vested rights of the compulsory heirs of the deceased would be impaired. Defendant thus prayed for the dismissal of the complaint and as counterclaim demanded the sum ofP70.000.00 representing actual, moral and exemplary damages. Due hearing was conducted thereon and after the parties ad submitted theirrespective memoranda, the lower Court on August 25, 1954, rendered judgmentfinding that the deceased Edward Christensen and Bernarda Camporendondo,not otherwise suffering from any impediment to contract marriage, lived together as husband and wife without marital ties continously for over 30years until the former's death in 1953; that out of such relations 2 childrenwere born; and that the properties in controversy were acquired by either orboth of them through their work or industry. Relying on Section 144 of theCivil Code which said court considered to have created another mode ofacquiring ownership, plaintiff was held to be entitled to one-half of saidproperties as co-owner thereof in view of her relationship with the deceasedand ordered the executor to account for and deliver the same by her. Fromthis decision, defendant Aznar, as Executor of the will, perfected an appealto the Court of Appeals, but as the property involved in the litigation exceeds P50,000.00 said tribunal elevated the case to Us for consideration. It is not controverted that at the time of his death, Edward Christensen was the owner of certain properties, including shares of stock in the plantation bearing his name and a general merchandising store in Davao City. It is also undeniable that the

deceased and appellee, both capacitated to enter into the married state, maintained relations as husband and wife, continuously and publicly for a considerable number of years which the lower Court declared to be until the death of Christensen in 1953. While as a general rule appellate courts do not usually disturb the lower court's findings of fact, unless said finding is not supported by or totally devoid of or inconsistent with the evidence on record, such finding must ofnecessity be modified to confrom with the evidence if the reviewing tribunalwere to arrive at the proper and just solution of the controversy. In theinstant case, the court a quo overlooked or failed to consider the testimonies of both Lucy and Helen Christensen to the effect that the deceased and their mother Bernarda Camporendondo had some sort of quarrel or misunderstanding and parted ways as of March, 1950, a fact which appelleewas not able to overcome. Taking into account the circumstances of this caseas found by the trial court, with the modification that the cohabitation should appear as continuous from the early 20's until March, 1950, the question left for our determination is whether Bernarda Camporedondo, byreason of such relationship, may be considered as a co-owner of the properties acquired by the deceased during said period and thus entitledto one-half thereof after the latter's death. Presumably taking judicial notice of the existence in our society of a certain kind of relationship brought about by couples living together as husbands and wives without the benefit of marriage, acquiring and bringingproperties unto said union, and probably realizing that while same may not beacceptable from the moral point of view they are as much entitled to theprotection of the laws as any other property owners, the lawmakersincorporated Article 144 in Republic Act No. 386 (Civil Code of the Philippines) to govern their property relations. Said article read as follows: ART. 114. When a man and a woman live together as husband and wife, but they are not married, or their marriage is void from the beginning, the property acquired by either or both of them through their work or industry or their wages and salaries shall be governed by the rules of coownership.

It must be noted that such form of co-ownership requires that the man and the woman thus living together must not in any way be incapacitated to contract marriage and that the properties realized during their cohabitation be acquired through the work, industry, employment or occupation of both or either of them. And the same thing may be said of whose marriages are by provision of law declared void ab intio. While it is true that these requisites are fully met and satisfied in the case at bar, We must remember that the deceased and herein appellee were already estranged as of March, 1950. There being no provision of law governing the cessation of such informal civil partnership, if ever existed, same may be considered terminated upon their separation or desistance to continue said relations.The Spanish Civil Code which was then enforce contains to counterpart of Article 144 and as the records in the instant case failed to show show thata subsequent reconciliation ever took place and considering that Republic ActNo. 386 which recognizeed such form of co-ownership went into operation onlyon August 30, 1950, evidently, this later enactment cannot be invoked as basis for appellee's claim. In determining the question poised by this action We may look upon the jurisprudence then obtaining on the matter. As early as 1925, this Court already declared that where a man and a woman, not suffering from any impediment to contract marriage, live together as husband and wife, an informal civil partnership exists and made the pronouncement that each of them has an intereat in the properties acquired during said union and is entitled to participate therein if said properties were the product oftheir JOINT efforts (Marata vs. Dionio G.R. No. 24449, Dec. 31, 1925). In another case, this Court similarly held that although there is no technical marital partnership between person living maritally without being lawfully married, nevertheless there is between them an informalcivil partnership, and the parties would be entitled to an equal interest where the property is acquired through their JOINT efforts (Lesaca vs. FelixVda. de Lesaca, 91 Phil., 135). Appellee, claiming that the properties in controversy were the product of their joint industry apparently in her desire to tread on the doctrine laiddown in the aforementioned cases, would lead Us to believe that her help wassolicited or she took a hand in the

management of and/or acquisition of thesame. But such assertion appears incredible if We consider that she wasobserved by the trial Court as an illiterate woman who cannot even remembersimple things as the date when she arrived at the Mindanao Estate, when shecommenced relationship with the deceased, not even her approximate age orthat of her children. And considering that aside from her own declaration, which We find to be highly improbable, there appears no evidence to proveher alleged contribution or participation in the acquisition of the properties involved therein, and that in view of the holding of this Courtthat for a claim to onehalf of such property to be allowed it must be provedthat the same was acquired through their joint efforts and labor (Flores vs.Rehabilitation Finance Corporation, * 50 Off. Gaz. 1029), We have no recoursebut reverse the holding of the lower Court and deny the claim of BernardaCampredondo. We may further state that even granting, for the sake ofargument, that this case falls under the provisions of Article 144 of theCivil Code, same would be applicable only as far as properties acquiredafter the effectivity of Republic Act 386 are concerned and to no other, forsuch law cannot be given retroactive effect to govern those already possessedbefore August 30, 1950. It may be argued, however, that being a newly created right, the provisions of Section 144 should be made to retroact if only toenforce such right. Article 2252 of the same Code is explicit in thisrespect when it states: SEC. 2252. Changes made and new provisions and rules laid down by this Code which may prejudice or impair vested or acquired rights in accordance with the old legislation, shall have ro retroactive effect. xxx xxx xxx.

As it cannot be denied that the rights and legitimes of the compulsory heirsof the deceased Edward Christensen would be impaired or diminished if the claim of herein appellee would succeed, the answer to such argument wouldbe simply obvious. With regard to appellant Aznar's contention that the lower Court erred in admitting the testimony of appellee Bernarda Camporedondo dealing with facts that transpired before the death

of Edward Christensen on the ground that it is prohibited by Section 26-(c), Rule 123 of the Rules of Court. We deem it unnecessary to delve on the same because even admitting that the court a quo committed the error assigned, yet it will not affect anymore the outcome of the case in view of the conclusion We have already arrived at on the main issue. On the strength of the foregoing considerations, We affirm the decision of the lower Court in case G.R. No. L-11484, with the modification that MariaLucy Christensen Daney need not be compelled to acknowledge her sister Maria Helen Christensen Garcia as a natural child of her father Edward E. Christensen, the declaration of the Court in this respect being sufficient to enable her to all the rights inherent to such status. The decision appealed from in case G.R. No. L-11483 is hereby reversed and another one rendered, dismissing plaintiff's complaint. Costs are taxed against appellants in G.R. No. L-11484 and against appellee Bernarda Camporedondo in G.R. No. L-11483. It is so ordered. Bengzon, Paras, C.J., Padilla, Reyes, A., Bautista Angelo, Concepcion, Reyes, J.B.L., and Endencia, JJ., concur.

MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS, oppositors-appellants, vs. EDWARD A. BELLIS, ET AL., heirs-appellees. Vicente R. Macasaet and Jose D. Villena for oppositors appellants. Paredes, Poblador, Cruz and Nazareno for heirs-appellees E. A. Bellis, et al. Quijano and Arroyo for heirs-appellees W. S. Bellis, et al. J. R. Balonkita for appellee People's Bank & Trust Company. Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman. BENGZON, J.P., J.: This is a direct appeal to Us, upon a question purely of law, from an order of the Court of First Instance of Manila dated April 30, 1964, approving the project of partition filed by the executor in Civil Case No. 37089 therein.1wph1.t The facts of the case are as follows: Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the United States." By his first wife, Mary E. Mallen, whom he divorced, he had five legitimate children: Edward A. Bellis, George Bellis (who pre-deceased him in infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman; by his second wife, Violet Kennedy, who survived him, he had three legitimate children: Edwin G. Bellis, Walter S. Bellis and Dorothy Bellis; and finally, he had three illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis. On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that after all taxes, obligations, and expenses of administration are paid for, his distributable estate should be divided, in trust, in the following order and manner: (a) $240,000.00 to his first wife, Mary E. Mallen; (b) P120,000.00 to his three illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis, Miriam Palma Bellis, or P40,000.00 each and (c) after the foregoing two items have been satisfied, the remainder shall go to his seven surviving children by his first and second wives, namely: Edward A.

G.R. No. L-23678

June 6, 1967

TESTATE ESTATE OF AMOS G. BELLIS, deceased. PEOPLE'S BANK and TRUST COMPANY, executor.

Bellis, Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis, and Dorothy E. Bellis, in equal shares.1wph1.t Subsequently, or on July 8, 1958, Amos G. Bellis died a resident of San Antonio, Texas, U.S.A. His will was admitted to probate in the Court of First Instance of Manila on September 15, 1958. The People's Bank and Trust Company, as executor of the will, paid all the bequests therein including the amount of $240,000.00 in the form of shares of stock to Mary E. Mallen and to the three (3) illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis, various amounts totalling P40,000.00 each in satisfaction of their respective legacies, or a total of P120,000.00, which it released from time to time according as the lower court approved and allowed the various motions or petitions filed by the latter three requesting partial advances on account of their respective legacies. On January 8, 1964, preparatory to closing its administration, the executor submitted and filed its "Executor's Final Account, Report of Administration and Project of Partition" wherein it reported, inter alia, the satisfaction of the legacy of Mary E. Mallen by the delivery to her of shares of stock amounting to $240,000.00, and the legacies of Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis in the amount of P40,000.00 each or a total of P120,000.00. In the project of partition, the executor pursuant to the "Twelfth" clause of the testator's Last Will and Testament divided the residuary estate into seven equal portions for the benefit of the testator's seven legitimate children by his first and second marriages. On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective oppositions to the project of partition on the ground that they were deprived of their legitimes as illegitimate children and, therefore, compulsory heirs of the deceased. Amos Bellis, Jr. interposed no opposition despite notice to him, proof of service of which is evidenced by the registry receipt submitted on April 27, 1964 by the executor.1

After the parties filed their respective memoranda and other pertinent pleadings, the lower court, on April 30, 1964, issued an order overruling the oppositions and approving the executor's final account, report and administration and project of partition. Relying upon Art. 16 of the Civil Code, it applied the national law of the decedent, which in this case is Texas law, which did not provide for legitimes. Their respective motions for reconsideration having been denied by the lower court on June 11, 1964, oppositors-appellants appealed to this Court to raise the issue of which law must apply Texas law or Philippine law. In this regard, the parties do not submit the case on, nor even discuss, the doctrine of renvoi, applied by this Court in Aznar v. Christensen Garcia, L-16749, January 31, 1963. Said doctrine is usually pertinent where the decedent is a national of one country, and a domicile of another. In the present case, it is not disputed that the decedent was both a national of Texas and a domicile thereof at the time of his death.2 So that even assuming Texas has a conflict of law rule providing that the domiciliary system (law of the domicile) should govern, the same would not result in a reference back (renvoi) to Philippine law, but would still refer to Texas law. Nonetheless, if Texas has a conflicts rule adopting the situs theory (lex rei sitae) calling for the application of the law of the place where the properties are situated, renvoi would arise, since the properties here involved are found in the Philippines. In the absence, however, of proof as to the conflict of law rule of Texas, it should not be presumed different from ours.3 Appellants' position is therefore not rested on the doctrine of renvoi. As stated, they never invoked nor even mentioned it in their arguments. Rather, they argue that their case falls under the circumstances mentioned in the third paragraph of Article 17 in relation to Article 16 of the Civil Code. Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the decedent, in intestate or testamentary successions, with regard to four items: (a) the order of succession; (b) the amount of successional rights; (e) the intrinsic validity of the provisions of the will; and (d) the capacity to succeed. They provide that

ART. 16. Real property as well as personal property is subject to the law of the country where it is situated. However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may he the nature of the property and regardless of the country wherein said property may be found. ART. 1039. Capacity to succeed is governed by the law of the nation of the decedent. Appellants would however counter that Art. 17, paragraph three, of the Civil Code, stating that Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. prevails as the exception to Art. 16, par. 2 of the Civil Code aforequoted. This is not correct. Precisely, Congress deleted the phrase, "notwithstanding the provisions of this and the next preceding article" when they incorporated Art. 11 of the old Civil Code as Art. 17 of the new Civil Code, while reproducing without substantial change the second paragraph of Art. 10 of the old Civil Code as Art. 16 in the new. It must have been their purpose to make the second paragraph of Art. 16 a specific provision in itself which must be applied in testate and intestate succession. As further indication of this legislative intent, Congress added a new provision, under Art. 1039, which decrees that capacity to succeed is to be governed by the national law of the decedent. It is therefore evident that whatever public policy or good customs may be involved in our System of legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For it has specifically chosen to leave, inter alia, the amount of

successional rights, to the decedent's national law. Specific provisions must prevail over general ones. Appellants would also point out that the decedent executed two wills one to govern his Texas estate and the other his Philippine estate arguing from this that he intended Philippine law to govern his Philippine estate. Assuming that such was the decedent's intention in executing a separate Philippine will, it would not alter the law, for as this Court ruled in Miciano v. Brimo, 50 Phil. 867, 870, a provision in a foreigner's will to the effect that his properties shall be distributed in accordance with Philippine law and not with his national law, is illegal and void, for his national law cannot be ignored in regard to those matters that Article 10 now Article 16 of the Civil Code states said national law should govern. The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and that under the laws of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic validity of the provision of the will and the amount of successional rights are to be determined under Texas law, the Philippine law on legitimes cannot be applied to the testacy of Amos G. Bellis. Wherefore, the order of the probate court is hereby affirmed in toto, with costs against appellants. So ordered. Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ., concur

The Facts The deceased Lorenzo N. Llorente was an enlisted serviceman of the United States Navy from March 10, 1927 to September 30, 1957.iii[3] On February 22, 1937, Lorenzo and petitioner Paula Llorente (hereinafter referred to as Paula) were married before a parish priest, Roman Catholic Church, in Nabua, Camarines Sur. iv[4] Before the outbreak of the Pacific War, Lorenzo departed for the United States and Paula stayed in the conjugal home in barrio Antipolo, Nabua, Camarines Sur.v[5] On November 30, 1943, Lorenzo was admitted to United States citizenship and Certificate of Naturalization No. 5579816 was issued in his favor by the United States District Court, Southern District of New York.vi[6] Upon the liberation of the Philippines by the American Forces in 1945, Lorenzo was granted an accrued leave by the U. S. Navy, to visit his wife and he visited the Philippines. vii[7] He discovered that his wife Paula was pregnant and was living in and having an adulterous relationship with his brother, Ceferino Llorente.viii[8] On December 4, 1945, Paula gave birth to a boy registered in the Office of the Registrar of Nabua as Crisologo Llorente, with the certificate stating that the child was not legitimate and the line for the fathers name was left blank.ix[9] Lorenzo refused to forgive Paula and live with her. In fact, on February 2, 1946, the couple drew a written agreement to the effect that (1) all the family allowances allotted by the United States Navy as part of Lorenzos salary and all other obligations for Paulas daily maintenance and support would be suspended; (2) they would dissolve their marital union in accordance with judicial proceedings; (3) they would make a separate agreement regarding their conjugal property acquired during their marital life; and (4) Lorenzo would not prosecute Paula for her adulterous act since she voluntarily admitted her fault and agreed to separate from Lorenzo peacefully. The agreement was signed by both Lorenzo and Paula and was witnessed by Paulas father and stepmother. The agreement was

G.R. No. 124371. November 23, 2000]

PAULA T. LLORENTE, petitioner, vs. COURT OF APPEALS and ALICIA F. LLORENTE, respondents.

DECISION PARDO, J.:

The Case The case raises a conflict of laws issue. What is before us is an appeal from the decision of the Court of Appealsi[1] modifying that of the Regional Trial Court, Camarines Sur, Branch 35, Iriga Cityii[2] declaring respondent Alicia F. Llorente (herinafter referred to as Alicia), as co-owners of whatever property she and the deceased Lorenzo N. Llorente (hereinafter referred to as Lorenzo) may have acquired during the twenty-five (25) years that they lived together as husband and wife.

notarized by Notary Public Pedro Osabel.x[10] Lorenzo returned to the United States and on November 16, 1951 filed for divorce with the Superior Court of the State of California in and for the County of San Diego. Paula was represented by counsel, John Riley, and actively participated in the proceedings. On November 27, 1951, the Superior Court of the State of California, for the County of San Diego found all factual allegations to be true and issued an interlocutory judgment of divorce.xi[11] On December 4, 1952, the divorce decree became final.xii[12] In the meantime, Lorenzo returned to the Philippines. On January 16, 1958, Lorenzo married Alicia F. Llorente in Manila.xiii[13] Apparently, Alicia had no knowledge of the first marriage even if they resided in the same town as Paula, who did not oppose the marriage or cohabitation. xiv[14] From 1958 to 1985, Lorenzo and Alicia lived together as husband and wife.xv[15] Their twenty-five (25) year union produced three children, Raul, Luz and Beverly, all surnamed Llorente. xvi[16] On March 13, 1981, Lorenzo executed a Last Will and Testament. The will was notarized by Notary Public Salvador M. Occiano, duly signed by Lorenzo with attesting witnesses Francisco Hugo, Francisco Neibres and Tito Trajano. In the will, Lorenzo bequeathed all his property to Alicia and their three children, to wit: (1) I give and bequeath to my wife ALICIA R. FORTUNO exclusively my residential house and lot, located at San Francisco, Nabua, Camarines Sur, Philippines, including ALL the personal properties and other movables or belongings that may be found or existing therein; (2) I give and bequeath exclusively to my wife Alicia R. Fortuno and to my children, Raul F. Llorente, Luz F. Llorente and Beverly F. Llorente, in equal shares, all my real properties whatsoever and wheresoever located, specifically my real properties located at Barangay Aro-Aldao, Nabua, Camarines Sur; Barangay Paloyon, Nabua, Camarines Sur; Barangay Baras, Sitio Puga, Nabua, Camarines Sur; and Barangay Paloyon, Sitio Nalilidong, Nabua, Camarines Sur;

(3) I likewise give and bequeath exclusively unto my wife Alicia R. Fortuno and unto my children, Raul F. Llorente, Luz F. Llorente and Beverly F. Llorente, in equal shares, my real properties located in Quezon City Philippines, and covered by Transfer Certificate of Title No. 188652; and my lands in Antipolo, Rizal, Philippines, covered by Transfer Certificate of Title Nos. 124196 and 165188, both of the Registry of Deeds of the province of Rizal, Philippines; (4) That their respective shares properties, whether real or personal disposed of, ceded, sold and conveyed could only be sold, ceded, conveyed and themselves; in the above-mentioned properties, shall not be to any other persons, but disposed of by and among

(5) I designate my wife ALICIA R. FORTUNO to be the sole executor of this my Last Will and Testament, and in her default or incapacity of the latter to act, any of my children in the order of age, if of age; (6) I hereby direct that the executor named herein or her lawful substitute should served (sic) without bond; (7) I hereby revoke any and all my other wills, codicils, or testamentary dispositions heretofore executed, signed, or published, by me; (8) It is my final wish and desire that if I die, no relatives of mine in any degree in the Llorentes Side should ever bother and disturb in any manner whatsoever my wife Alicia R. Fortunato and my children with respect to any real or personal properties I gave and bequeathed respectively to each one of them by virtue of this Last Will and Testament.xvii[17] On December 14, 1983, Lorenzo filed with the Regional Trial Court, Iriga, Camarines Sur, a petition for the probate and allowance of his last will and testament wherein Lorenzo moved that Alicia be appointed Special Administratrix of his estate.xviii[18] On January 18, 1984, the trial court denied the motion for the reason that the testator Lorenzo was still alive.xix[19] On January 24, 1984, finding that the will was duly executed, the trial court admitted the will to probate. xx[20]

On June 11, 1985, before the proceedings could be terminated, Lorenzo died.xxi[21] On September 4, 1985, Paula filed with the same court a petitionxxii[22] for letters of administration over Lorenzos estate in her favor. Paula contended (1) that she was Lorenzos surviving spouse, (2) that the various property were acquired during their marriage, (3) that Lorenzos will disposed of all his property in favor of Alicia and her children, encroaching on her legitime and 1/2 share in the conjugal property.xxiii[23] On December 13, 1985, Alicia filed in the testate proceeding (Sp. Proc. No. IR-755), a petition for the issuance of letters testamentary.xxiv[24] On October 14, 1985, without terminating the testate proceedings, the trial court gave due course to Paulas petition in Sp. Proc. No. IR-888.xxv[25] On November 6, 13 and 20, 1985, the order was published in the newspaper Bicol Star.xxvi[26] On May 18, 1987, the Regional Trial Court issued a joint decision, thus: Wherefore, considering that this court has so found that the divorce decree granted to the late Lorenzo Llorente is void and inapplicable in the Philippines, therefore the marriage he contracted with Alicia Fortunato on January 16, 1958 at Manila is likewise void. This being so the petition of Alicia F. Llorente for the issuance of letters testamentary is denied. Likewise, she is not entitled to receive any share from the estate even if the will especially said so her relationship with Lorenzo having gained the status of paramour which is under Art. 739 (1). On the other hand, the court finds the petition of Paula Titular Llorente, meritorious, and so declares the intrinsic disposition of the will of Lorenzo Llorente dated March 13, 1981 as void and declares her entitled as conjugal partner and entitled to one-half of their conjugal properties, and as primary compulsory heir, Paula T. Llorente is also entitled to one-third of the estate and then one-third should go to the illegitimate children, Raul, Luz and Beverly, all surname (sic) Llorente, for them to partition in equal shares and also entitled to the remaining free portion in equal shares.

Petitioner, Paula Llorente is appointed legal administrator of the estate of the deceased, Lorenzo Llorente. As such let the corresponding letters of administration issue in her favor upon her filing a bond in the amount ( sic) of P100,000.00 conditioned for her to make a return to the court within three (3) months a true and complete inventory of all goods, chattels, rights, and credits, and estate which shall at any time come to her possession or to the possession of any other person for her, and from the proceeds to pay and discharge all debts, legacies and charges on the same, or such dividends thereon as shall be decreed or required by this court; to render a true and just account of her administration to the court within one (1) year, and at any other time when required by the court and to perform all orders of this court by her to be performed. On the other matters prayed for in respective petitions for want of evidence could not be granted. SO ORDERED.xxvii[27] In time, Alicia filed with the trial court reconsideration of the aforequoted decision.xxviii[28] a motion for

On September 14, 1987, the trial court denied Alicias motion for reconsideration but modified its earlier decision, stating that Raul and Luz Llorente are not children legitimate or otherwise of Lorenzo since they were not legally adopted by him. xxix[29] Amending its decision of May 18, 1987, the trial court declared Beverly Llorente as the only illegitimate child of Lorenzo, entitling her to one-third (1/3) of the estate and one-third (1/3) of the free portion of the estate.xxx[30] On September 28, 1987, respondent appealed to the Court of Appeals.xxxi[31] On July 31, 1995, the Court of Appeals promulgated its decision, affirming with modification the decision of the trial court in this wise: WHEREFORE, the decision appealed from is hereby AFFIRMED with the MODIFICATION that Alicia is declared as co-owner of whatever properties she and the deceased may have acquired during the twenty-five (25) years of cohabitation. SO ORDERED.xxxii[32]

On August 25, 1995, petitioner filed with the Court of Appeals a motion for reconsideration of the decision.xxxiii[33] On March 21, 1996, the Court of Appeals, xxxiv[34] denied the motion for lack of merit. Hence, this petition.xxxv[35]

successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration , whatever may be the nature of the property and regardless of the country wherein said property may be found. (emphasis ours) True, foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to take judicial notice of them. Like any other fact, they must be alleged and proved.xxxvii[37] While the substance of the foreign law was pleaded, the Court of Appeals did not admit the foreign law. The Court of Appeals and the trial court called to the fore the renvoi doctrine, where the case was referred back to the law of the decedents domicile, in this case, Philippine law. We note that while the trial court stated that the law of New York was not sufficiently proven, in the same breath it made the categorical, albeit equally unproven statement that American law follows the domiciliary theory hence, Philippine law applies when determining the validity of Lorenzos will.xxxviii[38] First, there is no such thing as one American law. The "national law" indicated in Article 16 of the Civil Code cannot possibly apply to general American law. There is no such law governing the validity of testamentary provisions in the United States. Each State of the union has its own law applicable to its citizens and in force only within the State. It can therefore refer to no other than the law of the State of which the decedent was a resident.xxxix[39] Second, there is no showing that the application of the renvoi doctrine is called for or required by New York State law. The trial court held that the will was intrinsically invalid since it contained dispositions in favor of Alice, who in the trial courts opinion was a mere paramour. The trial court threw the will out, leaving Alice, and her two children, Raul and Luz, with nothing. The Court of Appeals also disregarded the will. It declared Alice entitled to one half (1/2) of whatever property she and Lorenzo acquired during their cohabitation, applying Article 144 of the Civil Code of the Philippines. The hasty application of Philippine law and the complete disregard of the will, already probated as duly executed in

The Issue Stripping the petition of its legalese and sorting through the various arguments raised,xxxvi[36] the issue is simple. Who are entitled to inherit from the late Lorenzo N. Llorente? We do not agree with the decision of the Court of Appeals. We remand the case to the trial court for ruling on the intrinsic validity of the will of the deceased.

The Applicable Law The fact that the late Lorenzo N. Llorente became an American citizen long before and at the time of: (1) his divorce from Paula; (2) marriage to Alicia; (3) execution of his will; and (4) death, is duly established, admitted and undisputed. Thus, as a rule, issues arising from these incidents are necessarily governed by foreign law. The Civil Code clearly provides: Art. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad. Art. 16. Real property as well as personal property is subject to the law of the country where it is situated. However, intestate and testamentary succession, both with respect to the order of succession and to the amount of

accordance with the formalities of Philippine law, is fatal, especially in light of the factual and legal circumstances here obtaining.

The Civil Code provides: Art. 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed. When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution. (underscoring ours) The clear intent of Lorenzo to bequeath his property to his second wife and children by her is glaringly shown in the will he executed. We do not wish to frustrate his wishes, since he was a foreigner, not covered by our laws on family rights and duties, status, condition and legal capacity.xliv[44] Whether the will is intrinsically valid and who shall inherit from Lorenzo are issues best proved by foreign law which must be pleaded and proved. Whether the will was executed in accordance with the formalities required is answered by referring to Philippine law. In fact, the will was duly probated. As a guide however, the trial court should note that whatever public policy or good customs may be involved in our system of legitimes, Congress did not intend to extend the same to the succession of foreign nationals. Congress specifically left the amount of successional rights to the decedent's national law.xlv[45] Having thus ruled, we find it unnecessary to pass upon the other issues raised.

Validity of the Foreign Divorce In Van Dorn v. Romillo, Jr.xl[40] we held that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorces, the same being considered contrary to our concept of public policy and morality. In the same case, the Court ruled that aliens may obtain divorces abroad, provided they are valid according to their national law. Citing this landmark case, the Court held in Quita v. Court of Appeals,xli[41] that once proven that respondent was no longer a Filipino citizen when he obtained the divorce from petitioner, the ruling in Van Dorn would become applicable and petitioner could very well lose her right to inherit from him. In Pilapil v. Ibay-Somera,xlii[42] we recognized the divorce obtained by the respondent in his country, the Federal Republic of Germany. There, we stated that divorce and its legal effects may be recognized in the Philippines insofar as respondent is concerned in view of the nationality principle in our civil law on the status of persons. For failing to apply these doctrines, the decision of the Court of Appeals must be reversed.xliii[43] We hold that the divorce obtained by Lorenzo H. Llorente from his first wife Paula was valid and recognized in this jurisdiction as a matter of comity. Now, the effects of this divorce (as to the succession to the estate of the decedent) are matters best left to the determination of the trial court.

The Fallo WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals in CA-G. R. SP No. 17446 promulgated on July 31, 1995 is SET ASIDE. In lieu thereof, the Court REVERSES the decision of the Regional Trial Court and RECOGNIZES as VALID the decree of divorce granted in favor of the deceased Lorenzo N. Llorente by the Superior Court

Validity of the Will

of the State of California in and for the County of San Diego, made final on December 4, 1952. Further, the Court REMANDS the cases to the court of origin for determination of the intrinsic validity of Lorenzo N. Llorentes will and determination of the parties successional rights allowing proof of foreign law with instructions that the trial court shall proceed with all deliberate dispatch to settle the estate of the deceased within the framework of the Rules of Court. No costs. SO ORDERED. Davide, Jr., C.J., (Chairman), Puno, Kapunan, and YnaresSantiago, JJ., concur. G.R. No. L-25966 November 1, 1926

In the matter of the estate of Tomas Rodriguez, deceased. MANUEL TORRES, special administrator, and LUZ LOPEZ DE BUENO, heir, appellee, vs. MARGARITA LOPEZ, opponent-appellant. Marcaida, Capili and Ocampo and Camus, Delgado and Recto for appellant. Araneta and Zaragoza for appellee.

STREET, J.: This appeal involves a controversy over one-half of the estate of Tomas Rodriguez, decedent. The appellant, Margarita Lopez, claims said half by the intestate succession as next of kin and nearest heir; while the appellee, Luz Lopez de Bueno, claims the same by accredition and in the character of universal heir the will of the decedent. The trial court decided the point of controversy in favor of Luz Lopez de Bueno, and Margariat Lopez appealed. The facts necessary to an understanding of the case are these: On January 3, 1924, Tomas Rodriguez executed his last will

and testament, in the second clause of which he declared: I institute as the only and universal heirs to all my property, my cousin Vicente F. Lopez and his daughter Luz Lopez de Bueno. Prior to the time of the execution of this will the testator, Tomas Rodriguez, had been judicially declared incapable of taking care of himself and had been placed under the care of his cousin Vicente F. Lopez, as guardian. On January 7, 1924, or only four days after the will above-mentioned was made, Vicente F. Lopez died; and the testator, Tomas Rodriguez, died on February 25, 1924, thereafter. At the time the will was made Vicente F. Lopez had not presented his final accounts as guardian, and no such accounts had been presented by him at the time of his death. Margariat Lopez was a cousin and nearest relative of the decedent. The will referred to, and after having been contested, has been admitted to probate by judicial determination (Torres and Lopez de Bueno vs. Lopez, 48 Phil., 772). Our discussion of the legal problem presented should begin with article 753 of the Civil Code which in effect declares that, with certain exceptions in favor of near relatives, no testamentary provision shall be valid when made by a ward in favor of his guardian before the final accounts of the latter have been approved. This provision is of undoubted application to the situation before us; and the provision made in the will of Tomas Rodriguez in favor of Vicente F. Lopez was not any general incapacity on his part, but a special incapacity due to the accidental relation of guardian and ward existing between the parties. We now pass to article 982 of the Civil Code, defining the right of accretion. It is there declared, in effect, that accretion take place in a testamentary succession, first when the two or more persons are called to the same inheritance or the same portion thereof without special designation of shares; and secondly, when one of the persons so called dies before the testator or renounces the inheritance or is disqualifying to receive it. In the case before us we have a will calling Vicente F. Lopez and his daughter, Luz Lopez de Bueno, to the same inheritance without special designation of

shares. In addition to this, one of the persons named as heir has predeceased the testator, this person being also disqualified to receive the estate even if he had been alive at the time of the testator's death. This article (982) is therefore also of exact application to the case in hand; and its effect is to give to the survivor, Luz Lopez de Bueno, not only the undivided half which she would have received in conjunction with her father if he had been alive and qualified to take, but also the half which pertained to him. There was no error whatever, therefore, in the order of the trial court declaring Luz Lopez de Bueno entitled to the whole estate. The argument in favor of the appellant supposes that there has supervened a partial intestacy with respect to the half of the estate which was intended for Vicente F. Lopez and that this half has descended to the appellant, Margarita Lopez, as next of kin and sole heir at law of the decedent. In this connection attention is directed to article 764 of the Civil Code wherein it is declared, among other things, that a will may be valid even though the person instituted as heir is disqualified to inherit. Our attention is next invited to article 912 wherein it is declared, among other things, that legal succession takes place if the heir dies before the testator and also when the heir instituted is disqualified to succeed. Upon these provisions an argument is planted conducting to the conclusion that the will of Tomas Rodriguez was valid, notwithstanding the fact that one of the individuals named as heirs in the will was disqualified to take, and that as a consequence Margarita Lopez s entitled to inherit the share of said disqualified heir. We are the opinion that this contention is untenable and that the appellee clearly has the better right. In playing the provisions of the Code it is the duty of the court to harmonize its provisions as far as possible, giving due effect to all; and in case of conflict between two provisions the more general is to be considered as being limited by the more specific. As between articles 912 and 983, it is obvious that the former is the more general of the two, dealing, as it does, with the general topic of intestate succession while the latter is more specific, defining the particular conditions under which accretion takes place. In case of conflict, therefore, the provisions of the former article must be considered limited by the latter. Indeed, in subsection 3 of article 912 the provision with respect to intestate

succession is expressly subordinated to article 983 by the expression "and (if) there is no right of accretion." It is true that the same express qualification is not found in subsection 4 of article 912, yet it must be so understood, in view of the rule of interpretation above referred to, by which the more specific is held to control the general. Besides, this interpretation supplies the only possible means of harmonizing the two provisions. In addition to this, article 986 of the Civil Code affords independent proof that intestate succession to a vacant portion can only occur when accretion is impossible. The attorneys for the appellant direct attention to the fact that, under paragraph 4 of article 912, intestate succession occurs when the heir instituted is disqualified to succeed (incapaz de suceder), while, under the last provision in paragraph 2 of article 982, accretion occurs when one of the persons called to inherit under the will is disqualified to receive the inheritance (incapaz de recibirla). A distinction is then drawn between incapacity to succeed and incapacity to take, and it is contended that the disability of Vicente F. Lopez was such as to bring the case under article 912 rather than 982. We are of the opinion that the case cannot be made to turn upon so refined an interpretation of the language of the Code, and at any rate the disability to which Vicente F. Lopez was subject was not a general disability to succeed but an accidental incapacity to receive the legacy, a consideration which makes a case for accretion rather than for intestate succession. The opinions of the commentators, so far as they have expressed themselves on the subject, tend to the conclusion that the right of accretion with regard to portions of an inheritance left vacant by the death or disqualification of one of the heirs or his renunciation of the inheritance is governed by article 912, without being limited, to the extent supposed in appellant's brief, by provisions of the Code relative to intestate succession (Manresa, Comentarios al Codigo Civil Espaol , 4th ed., vol. VII, pp. 310, 311; id., 34; 13 Mucius Scaevola, pp. 372, 373, 285-287; 16 Mucius Scaevola, 186). Says Escriche: "It is to be understood that one of the coheirs or colegatees fails if nonexistent at the time of the making of the will, or he renounces the inheritance or legacy, if he dies before the testator, if the condition be not fulfilled, or if he becomes

otherwise incapacitated. . . . (Diccionario de Legislacion y Jurisprudencia, vol. I, p. 225.)lawphil.net In conclusion it may be worth observing that there has always existed both in the civil and in the common law a certain legal intendment, amounting to a mild presumption, against partial intestacy. In Roman law, as is well known, partial testacy systems a presumption against it, a presumption which has its basis in the supposed intention of the testator. The judgment appealed from will be affirmed, and it is so ordered, with costs against the appellant. Avancea, C, J., Villamor, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.

G.R. No. 4445

September 18, 1909

CATALINA BUGNAO, proponent-appellee, vs. FRANCISCO UBAG, ET AL., contestants-appellants. Rodriguez and Del Rosario for appellants. Fernando Salas for appellee. CARSON, J.: This is an appeal from an order of the Court of First Instance of Oriental Negros, admitting to probate a document purporting to be the last will and testament of Domingo Ubag, deceased. The instrument was propounded by his widow, Catalina Bugnao, the sole beneficiary thereunder, and probate was contested by the appellants, who are brothers and sisters of the deceased, and who would be entitled to share in the distribution of his estate, if probate were denied, as it appears that the deceased left no heirs in the direct ascending or descending line. Appellants contend that the evidence of record is not sufficient to establish the execution of the alleged will in the manner and form prescribed in section 618 of the Code of Civil Procedure; and that at the time when it is alleged that the will was executed, Ubag was not of sound mind and memory, and was physically and mentally incapable of making a will. The instrument propounded for probate purports to be the last will and testament of Domingo Ubag, signed by him in the presence of three subscribing and attesting witnesses, and appears upon its face to have been duly executed in accordance with the provisions of the Code of Civil Procedure touching the making of wills. Two of the subscribing witnesses, Victor J. Bingtoy and Catalino Mario, testified in support of the will, the latter being the justice of the peace of the municipality wherein it was executed; and their testimony was corroborated in all important details by the testimony of the proponent herself, who was present when the will was made. It does not appear from the record why the third subscribing witness was not called; but since counsel for the contestants makes no comment upon his absence, we think it may safely be inferred that

there was some good and sufficient reason therefore. In passing, however, it may be well to observe that, when because of death, sickness, absence, or for any other reason, it is not practicable to call to the witness stand all the subscribing witnesses to a will offered for probate, the reason for the absence of any of these witnesses should be made to appear of record, and this especially in cases such as the one at bar, wherein there is a contests. The subscribing witnesses gave full and detailed accounts of the execution of the will and swore that the testator, at the time of its execution, was of sound mind and memory, and in their presence attached his signature thereto as his last will and testament, and that in his presence and in the presence of each other, they as well as the third subscribing witness. Despite the searching and exhaustive cross-examination to which they were subjected, counsel for appellants could point to no flaw in their testimony save an alleged contradiction as to a single incident which occurred at or about the time when the will was executed a contradiction, however, which we think is more apparent than real. One of the witnesses stated that the deceased sat up in bed and signed his name to the will, and that after its execution food was given him by his wife; while the other testified that he was assisted into a sitting position, and was given something to eat before he signed his name. We think the evidence discloses that his wife aided the sick man to sit up in bed at the time when he signed his name to the instrument, and that he was given nourishment while he was in that position, but it is not quite clear whether this was immediately before or after, or both before and after he attached his signature to the will. To say that the sick man sat up or raised himself up in bed is not necessarily in conflict with the fact that he received assistance in doing so; and it is not at all improbable or impossible that nourishment might have been given to him both before and after signing the will, and that one witness might remember the former occasion and the other witness might recall the latter, although neither witness could recall both. But, however this may have been, we do not think that a slight lapse of memory on the part of one or the other witness, as to the precise details of an unimportant incident, to which his attention may not have been particularly directed, is sufficient to raise a doubt as to the veracity of these witnesses, or as to the truth and accuracy of their recollection of the fact of the execution of the instrument. Of course,

a number of contradictions in the testimony of alleged subscribing witnesses to a will as to the circumstances under which it was executed, or even a single contradiction as to a particular incident, where the incident was of such a nature that the intention of any person who was present must have been directed to it, and where the contradictory statements in regard to it are so clear and explicit as to negative the possibility or probability of mistake, might well be sufficient to justify the conclusion that the witnesses could not possibly have been present, together, at the time when it is alleged the will was executed; but the apparent contradictions in the testimony of the witnesses in the case at bar fall far short of raising a doubt a to their veracity, and on the other hand their testimony as a whole gives such clear, explicit, and detailed account of all that occurred, and is so convincing and altogether satisfactory that we have no doubt that the trial judge who heard them testify properly accepted their testimony as worthy of entire confidence and belief. The contestants put upon the stand four witnesses for the purpose of proving that at the time and on the occasion when the subscribing witnesses testified that the will was executed, these witnesses were not in the house with the testator, and that the alleged testator was at that time in such physical and mental condition that it was impossible for him to have made a will. Two of these witnesses, upon cross-examination, admitted that they were not in the house at or between the hours of four and six in the afternoon of the day on which the will is alleged to have been made, this being the time at which the witnesses in support of the will testified that it was executed. Of the other witnesses, one is a contestant of the will, Macario Ubag, a brother of the testator, and the other, Canuto Sinoy, his close relative. These witnesses swore that they were in the house of the deceased, where he was lying ill, at or about the time when it is alleged that the will was executed, and that at that time the alleged subscribing witnesses were not in the house, and the alleged testator was so sick that he was unable to speak, to understand, or to make himself understood, and that he was wholly incapacitated to make a will. But the testimony of Macario Ubag is in our opinion wholly unworthy of credence. In addition to his manifest interest in the result of the investigation, it clearly discloses a fixed and settled purpose to overthrow the will at all costs, and to that end an utter disregard of the truth, and readiness to swear to any fact which he imagined would aid in

securing his object. An admittedly genuine and authentic signature of the deceased was introduced in evidence for comparison with the signature attached to the will, but this witness in his anxiety to deny the genuineness of the signature of his brother to the will, promptly and positively swore that the admittedly genuine signature was not his brother's signature, and only corrected his erroneous statement in response to a somewhat suggestive question by his attorney which evidently gave him to understand that his former answer was likely to prejudice his own cause. On cross-examination, he was forced to admit that because his brother and his brother's wife (in those favor the will was made) were Aglipayanos, he and his other brothers and sisters had not visited them for many months prior to the one particular occasion as to which testified; and he admitted further, that, although he lived near at hand, at no time thereafter did he or any of the other members of his family visit their dying brother, and that they did not even attend the funeral. If the testimony of this witness could be accepted as true, it would be a remarkable coincidence indeed, that the subscribing witnesses to the alleged will should have falsely pretended to have joined in its execution on the very day, and at the precise hour, when this interested witness happened to pay his only visit to his brother during his last illness, so that the testimony of this witness would furnish conclusive evidence in support of the allegations of the contestants that the alleged will was not executed at the time and place or in the manner and form alleged by the subscribing witnesses. We do not think that the testimony of this witness nor any of the other witnesses for the contestants is sufficient to raise even a doubt as to the truth of the testimony of the subscribing witnesses as to the fact of the execution of the will, or as to the manner and from in which it was executed. In the course of the proceedings, an admittedly genuine signature of the deceased was introduced in evidence, and upon a comparison of this signature with the signature attached to the instrument in question, we are wholly of the opinion of the trial judge, who held in this connection as follows: No expert evidence has been adduced with regard to these two signatures, and the presiding judge of this court does not claim to possess any special expert knowledge in the matter

of signatures; nevertheless, the court has compared these two signatures, and does not find that any material differences exists between the same. It is true that the signature which appears in the document offered for authentication discloses that at the time of writing the subscriber was more deliberate in his movements, but two facts must be acknowledge: First, that the testator was seriously ill, and the other fact, that for some reason which is not stated the testator was unable to see, and was a person who was not in the habit of signing his name every day. These facts should sufficiently explain whatever difference may exist between the two signatures, but the court finds that the principal strokes in the two signatures are identical. That the testator was mentally capable of making the will is in our opinion fully established by the testimony of the subscribing witnesses who swore positively that, at the time of its execution, he was of sound mind and memory. It is true that their testimony discloses the fact that he was at that time extremely ill, in an advanced stage of tuberculosis complicated with severe intermittent attacks of asthma; that he was too sick to rise unaided from his bed; that he needed assistance even to rise himself to a sitting position; and that during the paroxysms of asthma to which he was subject he could not speak; but all this evidence of physical weakness in no wise establishes his mental incapacity or a lack of testamentary capacity, and indeed the evidence of the subscribing witnesses as to the aid furnished them by the testator in preparing the will, and his clear recollection of the boundaries and physical description of the various parcels of land set out therein, taken together with the fact that he was able to give to the person who wrote the will clear and explicit instructions as to his desires touching the disposition of his property, is strong evidence of his testamentary capacity. Counsel for appellant suggests that the fact that the alleged will leaves all the property of the testator to his widow, and wholly fails to make any provision for his brothers or sisters, indicates a lack of testamentary capacity and undue influence; and because of the inherent improbability that a man would make so unnatural and unreasonable a will, they contend that this fact indirectly

corroborates their contention that the deceased never did in fact execute the will. But when it is considered that the deceased at the time of his death had no heirs in the ascending or descending line; that a bitter family quarrel had long separated him from his brothers and sisters, who declined to have any relations with the testator because he and his wife were adherents of the Aglipayano Church; and that this quarrel was so bitter that none of his brothers or sisters, although some of them lived in the vicinity, were present at the time of his death or attended his funeral; we think the fact that the deceased desired to leave and did leave all of his property to his widow and made no provision for his brothers and sisters, who themselves were grown men and women, by no means tends to disclose either an unsound mind or the presence of undue influence on the part of his wife, or in any wise corroborates contestants' allegation that the will never was executed. It has been said that "the difficulty of stating standards or tests by which to determine the degree of mental capacity of a particular person has been everywhere recognized, and grows out of the inherent impossibility of measuring mental capacity, or its impairment by disease or other causes" (Greene vs. Greene, 145 III., 264, 276); and that "it is probable that no court has ever attempted to lay down any definite rule in respect to the exact amount of mental capacity requisite for the making of a valid will, without appreciating the difficulty of the undertaking" (Trish vs. Newell, 62 III., 196, 203). Between the highest degree of soundness of mind and memory which unquestionably carries with it full testamentary capacity, and that degree of mental aberration generally known as insanity or idiocy, there are numberless degrees of mental capacity or incapacity, and while on one hand it has been held that "mere weakness of mind, or partial imbecility from the disease of body, or from age, will not render a person incapable of making a will, a weak or feeble minded person may make a valid will, provided he has understanding memory sufficient to enable him to know what he is about, and how or to whom he is disposing of his property" (Lodge vs. Lodge, 2 Houst. (Del.), 418); that, "To constitute a sound and disposing mind, it is not necessary that the mind should be unbroken or unimpaired, unshattered by disease or otherwise"

(Sloan vs. Maxwell, 3 N. J. Eq., 563); that "it has not been understood that a testator must possess these qualities (of sound and disposing mind and memory) in the highest degree. . . . Few indeed would be the wills confirmed, if this is correct. Pain, sickness, debility of body, from age or infirmity, would, according to its violence or duration, in a greater or less degree, break in upon, weaken, or derange the mind, but the derangement must be such as deprives him of the rational faculties common to man" (Den. vs. Vancleve, 5 N. J. L.,680); and, that "Sound mind does not mean a perfectly balanced mind. The question of soundness is one of degree" (Boughton vs. Knight, L. R.,3 P. & D., 64; 42 L. J. P., 25); on the other hand, it has been held that "testamentary incapacity does not necessarily require that a person shall actually be insane or of an unsound mind. Weakness of intellect, whether it arises from extreme old age from disease, or great bodily infirmities or suffering, or from all these combined, may render the testator incapable of making a valid will, providing such weakness really disqualifies her from knowing or appreciating the nature, effects, or consequences of the act she is engaged in" (Manatt vs. Scott, 106 Iowa, 203; 68 Am. St. Rep., 293, 302). But for the purposes of this decision it is not necessary for us to attempt to lay down a definition of testamentary capacity which will cover all possible cases which may present themselves, because, as will be seen from what has already been said, the testator was, at the time of making the instrument under consideration, endowed with all the elements of mental capacity set out in the following definition of testamentary capacity which has been frequently announced in courts of last resort in England and the United States; and while is some cases testamentary capacity has been held to exist in the absence of proof of some of these elements, there can be no question that, in the absence of proof of very exceptional circumstances, proof of the existence of all these elements in sufficient to establish the existence of testamentary capacity. Testamentary capacity is the capacity to comprehend the nature of the transaction which the testator is engaged at the time, to recollect the property to be disposed of and the person who would naturally be supposed to have claims upon the testator, and to comprehend the manner in which the

instrument will distribute his property among the objects of his bounty. (Cf. large array of cases cited in support of this definition in the Encyclopedia of Law, vol. 23, p. 71, second edition.) In our opinion, the evidence of record establishes in a strikingly conclusive manner the execution of the instrument propounded as the last will and testament of the deceased; that it was made in strict conformity with the requisites prescribed by law; and that, at the time of its execution, the deceased was of sound mind and memory, and executed the instrument of his own free will and accord. The order probating the will should be land is hereby affirmed, with the cost of this instance against the appellants. Arellano, C. J., Torres, Johnson, and Moreland, JJ., concur.

CAGUIOA VS. CALDERON 20 Phil 400

BAGTAS VS. PAGUIO

22 Phil 227

FACTS: 1. Pioquinto Paguio died on September 28, 1909. 2. For some 14 or 15 years prior to the time of his death, he suffered from a paralysis of the left side of his body; that a few years prior to his death his hearing became impaired and that he lost the power of speech. 3. He retained the use of his right hand and was able to write fairly well. 4. Through the medium of signs he was able to indicate his wishes to his wife and to other members of his family. 5. The testator wrote out on several pieces of paper the disposition of his property. 6. The same was in turn delivered to one Seor Marco who transcribed and put them in form. 7. The pieces of paper were then delivered to a lawyer who read them to the testator asking if they were his dispositions. 8. The testator assented each time with an affirmative movement of his head. 9. The widow of the decedent Juliana Bagtas then sought the probate of the purported last will and testament of Pioquinto. 10. The CFI of Bataan admitted the same for probate. 11. Isidoro Paguio, a son of the decedent by a former marriage, opposed the probation on the ground that the testator was not n full enjoyment and use of his mental faculties and was without mental capacity necessary to execute a valid will. ISSUE: Was the will was validly executed? HELD: The rule of law relating to the presumption of mental soundness is well-established, and the testator in the case at bar never having been adjudged insane by the court of competent jurisdiction , this presumption continues, and it is therefore incumbent upon the opponents to overcome this legal presumption by proper evidence. The opponents failed to do this.

The courts have repeatedly held that mere weakness of mind and body , induced by age and disease does not render a person incapable of making a will. The law does not require that a person shall continue in the full enjoyment and use of his pristine physical and mental powers in order to execute a valid will. If such were the legal standard , few indeed would be the number of wills that could meet such exacting requirements. The authorities, both medical and legal, are universal in the statement that the question of mental capacity is one of degree, and that there are many gradations from the highest degree of mental soundness to the lowest conditions of diseased mentality which are denominated insanity or idiocy.

G.R. No. L-6801

March 14, 1912

JULIANA BAGTAS, plaintiffs-appellee, vs. ISIDRO PAGUIO, ET AL., defendants-appellants. Salas and Kalaw for appellants. Jose Santiago for appellee. TRENT, J.: This is an appeal from an order of the Court of First Instance of the Province of Bataan, admitting to probate a document which was offered as the last will and testament of Pioquinto Paguio y Pizarro. The will purports to have been executed in the pueblo of Pilar, Province of Bataan, on the 19th day of April, 1908. The testator died on the 28th of September, 1909, a year and five months following the date of the execution of the will. The will was propounded by the executrix, Juliana Bagtas, widow of the decedent, and the opponents are a son and several grandchildren by a former marriage, the latter being the children of a deceased daughter. The basis of the opposition to the probation of the will is that the same was not executed according to the formalities and requirements of the law touching wills, and further that the testator was not in the full of enjoyment and use of his mental faculties and was without the mental capacity necessary to execute a valid will.

The record shows that the testator, Pioquinto Paguio, for some fourteen of fifteen years prior to the time of his death suffered from a paralysis of the left side of his body; that a few years prior to his death his hearing became impaired and that he lost the power of speech. Owing to the paralysis of certain muscles his head fell to one side, and saliva ran from his mouth. He retained the use of his right hand, however, and was able to write fairly well. Through the medium of signs he was able to indicate his wishes to his wife and to other members of his family. At the time of the execution of the will there were present the four testamentary witnesses, Agustin Paguio, Anacleto Paguio, and Pedro Paguio, and attorney, Seor Marco, and one Florentino Ramos. Anacleto Paguio and the attorney have since died, and consequently their testimony was not available upon the trial of the case in the lower court. The other three testamentary witnesses and the witness Florentino Ramos testified as to the manner in which the will was executed. According to the uncontroverted testimony of these witnesses the will was executed in the following manner: Pioquinto Paguio, the testator, wrote out on pieces of paper notes and items relating to the disposition of his property, and these notes were in turn delivered to Seor Marco, who transcribed them and put them in form. The witnesses testify that the pieces of paper upon which the notes were written are delivered to attorney by the testator; that the attorney read them to the testator asking if they were his testamentary dispositions; that the testator assented each time with an affirmative movement of his head; that after the will as a whole had been thus written by the attorney, it was read in a loud voice in the presence of the testator and the witnesses; that Seor Marco gave the document to the testator; that the latter, after looking over it, signed it in the presence of the four subscribing witnesses; and that they in turn signed it in the presence of the testator and each other. These are the facts of record with reference to the execution of the will and we are in perfect accord with the judgment of the lower court that the formalities of the Code of Civil Procedure have been fully complied with.

This brings us now to a consideration of appellants' second assignment of error, viz, the testator's alleged mental incapacity at the time of the execution of the will. Upon this point considerable evidence was adduced at the trial. One of the attesting witnesses testified that at the time of the execution of the will the testator was in his right mind, and that although he was seriously ill, he indicated by movements of his head what his wishes were. Another of the attesting witnesses stated that he was not able to say whether decedent had the full use of his mental faculties or not, because he had been ill for some years, and that he (the witnesses) was not a physician. The other subscribing witness, Pedro Paguio, testified in the lower court as a witness for the opponents. He was unable to state whether or not the will was the wish of the testator. The only reasons he gave for his statement were the infirmity and advanced age of the testator and the fact that he was unable to speak. The witness stated that the testator signed the will, and he verified his own signature as a subscribing witness. Florentino Ramos, although not an attesting witness, stated that he was present when the will was executed and his testimony was cumulative in corroboration of the manner in which the will was executed and as to the fact that the testator signed the will. This witness also stated that he had frequently transacted matters of business for the decedent and had written letters and made inventories of his property at his request, and that immediately before and after the execution of the will he had performed offices of his character. He stated that the decedent was able to communicate his thoughts by writing. The testimony of this witness clearly indicates the presence of mental capacity on the part of the testator. Among other witnesses for the opponents were two physician, Doctor Basa and Doctor Viado. Doctor Basa testified that he had attended the testator some four or five years prior to his death and that the latter had suffered from a cerebral congestion from which the paralysis resulted. The following question was propounded to Doctor Basa: Q. Referring to mental condition in which you found him the last time you attended him, do you think he was in his right mind?

A. I can not say exactly whether he was in his right mind, but I noted some mental disorder, because when I spoke to him he did not answer me. Doctor Basa testified at more length, but the substance of his testimony is that the testator had suffered a paralysis and that he had noticed some mental disorder. He does not say that the testator was not in his right mind at the time of the execution of the will, nor does he give it at his opinion that he was without the necessary mental capacity to make a valid will. He did not state in what way this mental disorder had manifested itself other than that he had noticed that the testator did not reply to him on one occasion when he visited him. Doctor Viado, the other physician, have never seen the testator, but his answer was in reply to a hypothetical question as to what be the mental condition of a person who was 79 years old and who had suffered from a malady such as the testator was supposed to have had according to the testimony of Doctor Basa, whose testimony Doctor Viado had heard. He replied and discussed at some length the symptoms and consequences of the decease from which the testator had suffered; he read in support of his statements from a work by a German Physician, Dr. Herman Eichost. In answer, however, to a direct question, he stated that he would be unable to certify to the mental condition of a person who was suffering from such a disease. We do not think that the testimony of these two physicians in any way strengthens the contention of the appellants. Their testimony only confirms the fact that the testator had been for a number of years prior to his death afflicted with paralysis, in consequence of which his physician and mental strength was greatly impaired. Neither of them attempted to state what was the mental condition of the testator at the time he executed the will in question. There can be no doubt that the testator's infirmities were of a very serious character, and it is quite evident that his mind was not as active as it had been in the earlier years of his life. However, we can not include from this that he wanting in the necessary mental capacity to dispose of his property by will.

The courts have been called upon frequently to nullify wills executed under such circumstances, but the weight of the authority is in support if the principle that it is only when those seeking to overthrow the will have clearly established the charge of mental incapacity that the courts will intervene to set aside a testamentary document of this character. In the case of Bugnao vs. Ubag (14 Phil. Rep., 163), the question of testamentary capacity was discussed by this court. The numerous citations there given from the decisions of the United States courts are especially applicable to the case at bar and have our approval. In this jurisdiction the presumption of law is in favor of the mental capacity of the testator and the burden is upon the contestants of the will to prove the lack of testamentary capacity. (In the matter of the will of Cabigting, 14 Phil. Rep., 463; in the matter of the will of Butalid, 10 Phil. Rep., 27; Hernaez vs. Hernaez, 1 Phil. Rep., 689.) The rule of law relating to the presumption of mental soundness is well established, and the testator in the case at bar never having been adjudged insane by a court of competent jurisdiction, this presumption continues, and it is therefore incumbent upon the opponents to overcome this legal presumption by proper evidence. This we think they have failed to do. There are many cases and authorities which we might cite to show that the courts have repeatedly held that mere weakness of mind and body, induced by age and disease do not render a person incapable of making a will. The law does not require that a person shall continue in the full enjoyment and use of his pristine physical and mental powers in order to execute a valid will. If such were the legal standard, few indeed would be the number of wills that could meet such exacting requirements. The authorities, both medical and legal, are universal in statement that the question of mental capacity is one of degree, and that there are many gradations from the highest degree of mental soundness to the lowest conditions of diseased mentality which are denominated as insanity and idiocy. The right to dispose of property by testamentary disposition is as sacred as any other right which a person may exercise and this right should not be nullified unless mental incapacity is established in a positive and conclusive manner. In discussing the question of testamentary capacity, it is stated in volume 28, 70, of the American

and English Encyclopedia of Law, that Contrary to the very prevalent lay impression, perfect soundness of mind is not essential to testamentary capacity. A testator may be afflicted with a variety of mental weaknesses, disorders, or peculiarities and still be capable in law of executing a valid will. (See the numerous cases there cited in support of this statement.) The rule relating to testamentary capacity is stated in Buswell on Insanity, section 365, and quoted with approval in Campbell vs. Campbell (130 Ill., 466), as follows: To constitute a sound and disposing mind, it is not necessary that the mind shall be wholly unbroken, unimpaired, or unshattered by disease or otherwise, or that the testator should be in the full possession of his reasoning faculties. In note, 1 Jarman on Wills, 38, the rule is thus stated: The question is not so much, that was the degree of memory possessed by the testator, as, had he a disposing memory? Was he able to remember the property he was about to bequeath, the manner of disturbing it, and the objects of his bounty? In a word, were his mind and memory sufficiently sound to enable him to know and understand the business in which he was engaged at the time when he executed his will. (See authorities there cited.) In Wilson vs. Mitchell (101 Penn., 495), the following facts appeared upon the trial of the case: The testator died at the age of nearly 102 years. In his early years he was an intelligent and well informed man. About seven years prior to his death he suffered a paralytic stroke and from that time his mind and memory were mush enfeebled. He became very dull of hearing and in consequence of the shrinking of his brain he was affected with senile cataract causing total blindness. He became filthy and obscene in his habits, although formerly he was observant of the properties of life. The court, in commenting upon the case, said:

Neither age, nor sickness, nor extreme distress, nor debility of body will affect the capacity to make a will, if sufficient intelligence remains. The failure of memory is not sufficient to create the incapacity, unless it be total, or extend to his immediate family or property. . . . xxx xxx xxx

Dougal (the testator) had lived over one hundred years before he made the will, and his physical and mental weakness and defective memory were in striking contrast with their strength in the meridian of his life. He was blind; not deaf, but hearing impaired; his mind acted slowly, he was forgetful or recent events, especially of names, and repeated questions in conversation; and sometimes, when aroused for sleep or slumber, would seem bewildered. It is not singular that some of those who had known him when he was remarkable for vigor and intelligence, are of the opinion that his reason was so far gone that he was incapable of making a will, although they never heard him utter an irrational expression. In the above case the will was sustained. In the case at bar we might draw the same contrast as was pictured by the court in the case just quoted. The striking change in the physical and mental vigor of the testator during the last years of his life may have led some of those who knew him in his earlier days to entertain doubts as to his mental capacity to make a will, yet we think that the statements of the witnesses to the execution of the will and statements of the conduct of the testator at that time all indicate that he unquestionably had mental capacity and that he exercised it on this occasion. At the time of the execution of the will it does not appear that his conduct was irrational in any particular. He seems to have comprehended clearly what the nature of the business was in which he was engaged. The evidence show that the writing and execution of the will occupied a period several hours and that the testator was present during all this time, taking an active part in all the proceedings. Again, the will in the case at bar is perfectly reasonable and its dispositions are those of a rational person.

For the reasons above stated, the order probating the will should be and the same is hereby affirmed, with costs of this instance against the appellants. Arellano, C.J., Torres, Mapa, Johnson, Carson and Moreland, JJ., concur.

G.R. No. L-19142

March 5, 1923

In the matter of the estate of Mariano Corrales Tan, deceased. FLAVIANA SAMSON, petitioner-appellee, vs. VICENTE CORRALES TAN QUINTIN, oppositor-appellant. Marcaida, Capili and Ocampo for appellant. Epimaco Molina for appellee. OSTRAND, J.: This is an appeal from an order of the Court of First Instance of Manila admitting to probate a document alleged to be the last will and testament of the deceased Mariano Corrales Tan. There is no direct evidence as to the interest of the oppositor-appellant in the estate in question, though it may, perhaps, be inferred from the testimony of his wife Maximina Ong that he is the son of the deceased. In his answer to the petition for probate he alleges, in substance, that the will is incomplete and fraudulent and does not express the true intent of the testator; that the testator acted under duress and under undue influence, and that at the time of the execution of the will he was not of sound and disposing mind. We do not think the opponent has succeeded in proving any of his allegations. There is no evidence whatever showing that the testator acted under duress or undue influence and the only question of fact which we need consider is whether the testator was of sound and disposing mind when the document in question was executed. Upon this point the testimony of Dr. Tee Han Kee, the attending physician, as a witness for the opposition, is to the effect that the deceased was suffering from diabetes and had been in a comatose condition for several days prior to his death. He died about eight or

nine o'clock in the evening of December 26, 1921, and the will is alleged to have been executed in the forenoon of the same day. Counsel for the appellant, in his well-prepared brief, argues ably and vigorously that coma implies complete unconsciousness, and that the testator, therefore, could not at that time have been in possession of his mental faculties and have executed a will. There are, however, varying degrees of coma and in its lighter forms the patient may be aroused and have lucid intervals. Such seems to have been the case here. Doctor Tee Han Kee, the opponent's principal witness, who visited the deceased in the evening of December 25th, says he then seemed to be in a state of coma and that in the forenoon of December 26th, when the doctor again visited him, he was in "the same state of coma." Maximina Ong, the wife of the opponent, the only other witness for the opposition, states that on December 26th the deceased could not talk and did not recognize anyone. But all the witnesses presented by the petitioner, five in number, testify that the deceased was conscious, could hear and understand what was said to him and was able to indicate his desires. Four of these witnesses state that he could speak distinctly; the fifth, Velhagen, says that the deceased only moved his head in answer to questions. That the deceased was in an exceedingly feeble condition at the time the will was executed is evident, but if the witnesses presented in support of the petition told the truth there can be no doubt that he was of sound mind and capable of making his will. And we see no reason to discredit any of these witnesses; the discrepancies found between their respective versions of what took place at the execution of the document are comparatively unimportant and so far from weakening their testimony rather lend strength to it by indicating the absence of any conspiracy among them. As against their testimony we have only the testimony of Maximina Ong and Dr. Tee Han Kee. The former is not a disinterested witness. As to the testimony of the latter it is sufficient to say that mere professional speculation cannot prevail over the positive statements of five apparently credible witnesses whose testimony does not in itself seem unreasonable. There is no direct evidence in the record showing that the

publication of the time and place of the hearing of the petition for probate has been made as provided for in section 630 of the Code of Civil Procedure and the appellant argues that the court below erred in admitting the will to probate without proof of such publication. This question not having been raised in the court below will not be considered here. Section 630 of the Code of Civil Procedure, speaking of hearings for the probate of wills, also provides that "At the hearing all testimony shall be taken under oath, reduced to writing and signed by the witnesses" and the appellant maintains that the transcript of the testimony of the witness Dr. N. M. Saleeby, not having been signed by the witness, the testimony should have been excluded. There is no merit in this contention. When, as in this case, the testimony is taken by the stenographer of the court and certified to by him, the provision quoted can only be regarded as directory and a failure to observe the provision will not render the testimony inadmissible. (Reese vs. Nolan, 99 Ala., 203.) The order appealed from is affirmed, with the costs against the appellant. So ordered. Araullo, C. J., Street, Malcolm, Avancea, Villamor, Johns, and Romualdez, JJ., concur.

After the trial of the case, the court found that the plaintiff was really entitled to one-half () of the said property, adjudicating the same to her, but at the same time ordered said plaintiff to pay to the defendant the sum of P727.77, plus interests, by virtue of said counterclaims. Plaintiff Trinidad Neyra appealed from the said decision, to the Court of Appeals for Manila, alleging several errors, attacking the execution and validity of said agreement; and on November 10, 1942, said appeal was dismissed, pursuant to the to an agreement or compromise entered into by the parties, as shown by the corresponding document, dated November 3, 1942, which was filed in the case the following day, November 4, 1942. In the meanwhile, Encarnacion Neyra, who had been sickly for about two years, unexpectedly died, on November 4, 1942 at the age of 48, allegedly from heart attack, as a consequence of Addison's disease from which, it was claimed, she had been suffering for sometime. In view of the decision of the Court of Appeals, dated November 10, 1942, dismissing the appeal, by virtue of said agreement or compromise, Atty. Lucio Javillonar, claiming to represent Encarnacion Neyra, who had died since November 4, 1942, and other relatives of hers, filed a petition, dated November 23, 1942, asking for the reconsideration of said decision of the Court of Appeals, dismissing the appeal, claiming that the alleged compromise or agreement, dated November 3, 1942, could not have been understood by Encarnacion Neyra, as she was already then at the threshold of death, and that as a matter of fact she died the following day; and that if it had been signed at all by said Encarnacion Neyra, her thumbmark appearing on said document must have been affixed thereto by Trinidad Neyra's attorney, against Encarnacion's will; and that the court had no more jurisdiction over the case, when the alleged agreement was filed on November 4, 1942, at the instance of Trinidad Neyra, as Encarnacion was already dead at the time. The principal question to be decided, in connection with said petition for reconsideration, is whether or not said compromise or

C.A. No. 8075

March 25, 1946

TRINIDAD NEYRA, plaintiff-appellant, vs. ENCARNACION NEYRA, defendant-appellee. Alejandro M. Panis for appellant. Lucio Javillonar for appellee. DE JOYA, J.: On October 25, 1939, Trinidad Neyra filed a complaint against her sister, Encarnacion Neyra, in the Court of First Instance of the City of Manila, for the recovery of one-half () of the property mentioned and described therein, which had been left by their deceased father, Severo Neyra, and which had been previously divided equally between the two extrajudicially, demanding at the same time onehalf () of the rents collected on the said property by the defendant Encarnacion Neyra. The defendant filed an answer admitting that the property mentioned and described therein was community property, and at the same time set up counterclaims amounting to over P1,000, for money spent, during the last illness of their father, and for money loaned to the plaintiff.

agreement had been legally executed and signed by Encarnacion Neyra, on November 3, 1942. Trinidad Neyra maintains the affirmative. The voluminous evidence, testimonial and documentary, adduced by the parties, in this case, has fully established the following facts: That Severo Nayra died intestate in the City of Manila, on May 6, 1938, leaving certain properties and two children, by his first marriage, named Encarnacion Neyra and Trinidad Neyra, and other children by his second marriage; That after the death of Severo Neyra, the two sisters, Encarnacion Neyra and Trinidad Neyra, had serious misunderstandings, in connection with the properties left by their deceased father, and so serious were their dissensions that, after March 31, 1939, they had two litigations in the Court of First Instance of Manila, concerning said properties. In the first case, filed in March 31, 1939, Trinidad Neyra and others demanded by Encarnacion Neyra and others the annulment of the sale of the property located at No. 366 Raon Street, Manila which was finally decided in favor of the defendants, in the court of first instance, and in the Court of Appeals, on December 21, 1943 (G.R. No. 8162); and the second is the instance case. That Encarnacion Neyra, who had remained single, and who had no longer any ascendants, executed a will on September 14, 1939, marked Exhibit 16, disposing of her properties in favor of the "Congregacion de Religiosas de la Virgen Maria" and her other relatives, named Teodora Neyra, Pilar de Guzman and Maria Jacobo Vda. de Blanco, making no provision whatsoever in said will, in favor of her only sister of the whole blood, Trinidad Neyra, who had become her bitter enemy; that when the said will was brought to the attention of the authorities of said Congregation, after due deliberation and consideration, said religious organization declined the bounty offered by Encarnacion Neyra, and said decision of the Congregation was duly communicated to her; that in order to overcome the difficulties encountered by said religious organization in not accepting the generosity of Encarnacion Neyra, the latter decided to make a new will, and for that purpose, about one week before her death, sent for Atty. Ricardo Sikat, and gave him instructions for the preparation of a new will; that Atty. Sikat,

instead of preparing a new will, merely prepared a draft of a codicil, amending said will, dated September 14, 1939, again naming said religious organization, among others as beneficiary, and said draft of a codicil was also forwarded to the authorities of religious organization, for their consideration and acceptance; but it was also rejected. In the meanwhile, Encarnacion Neyra had become seriously ill, suffering from Addison's disease, and on October 31, 1942, she sent for her religious adviser and confessor, Mons. Vicente Fernandez of the Quiapo Church to make confession, after which she requested that holy mass be celebrated in her house at No. 366 Raon Street, City of Manila, so that she might take holy communion; that Mons. Fernandez caused the necessary arrangements to be made, and, as a matter of fact, on November 1, 1942, holy mass was solemnized in her house by Father Teodoro Garcia, also of the Quiapo Church, on which occasion, Encarnacion Neyra, who remained in bed, took holy communion; that after the mass, Father Garcia talked to Encarnacion Neyra and advised reconciliation between the two sisters, Encarnacion and Trinidad Neyra. Encarnacion accepted said advise and, at about noon of the same day (November 1, 1942), sent Eustaquio Mendoza to fetch her sister Trinidad, who came at about 2:30 that same afternoon; that the two sisters greeted each other in most affectionate manner, and became reconciled and two had a long and cordial conversation, in the course of which they also talked about the properties left by their father and their litigations which had reached the Court of Appeals for the City of Manila, the instant case being the second, and they agreed to have the latter dismissed, on the condition that the property involved therein should be given exclusively to Trinidad Neyra, that the latter should waive her share in the rents of said property collected by Encarnacion, and the Trinidad had no more indebtedness to Encarnacion. They also agreed to send for Atty. Alejandro M. Panis, to prepare the necessary document embodying the said agreement, but Attorney Panis could come only in the afternoon of the following day, November 2, 1942, when Encarnacion gave him instructions for the preparation of the document embodying their agreement, and other instructions for the preparation of her last will and testament; that Attorney Panis prepared said document of compromise as well as the new will and testament, naming Trinidad Neyra and Eustaquio Mendoza beneficiaries therein, pursuant to Encarnacion's

express instructions, and the two documents were prepared, in duplicate, and were ready for signature, since the morning of November 3, 1942; that in the afternoon of that day, of compromise and last will and testament to Encarnacion Neyra, slowly and in a loud voice, in the presence of Father Teodoro Garcia, Dr. Moises B. Abad, Dr. Eladio Aldecoa, Trinidad Neyra, and others, after which he asked her if their terms were in accordance with her wishes, or if she wanted any change made in said documents; that Encarnacion Neyra did not suggest any change, and asked for the pad and the two documents, and, with the help of a son of Trinidad, placed her thumbmark at the foot of each one of the two documents, in duplicate, on her bed in the sala, in the presence of attesting witnesses, Dr. Moises B. Abad, Dr. Eladio R. Aldecoa and Atty. Alejandro M. Panis, after which said witnesses signed at the foot of the will, in the presence of Encarnacion Neyra, and of each other. The agreement was also signed by Trinidad Neyra, as party, and by Dr. M. B. Abad and Eustaquio Mendoza, a protege, as witnesses. Father Teodoro Garcia was also present at the signing of the two documents, at the request of Encarnacion Neyra. The foregoing facts have been established by the witnesses presented by Trinidad Neyra, who are all trustworthy men, and who had absolutely no interest in the final outcome of this case. Two of them are ministers of the Gospel, while three of the attesting witnesses are professional men of irreproachable character, who had known and seen and actually talked to the testatrix. Petitioner Teodora Neyra, half sister of Encarnacion, and her young daughter Ceferina de la Cruz, and Presentacion Blanco, daughter of petitioner Maria Jacobo Vda. de Blanco, substantially corroborated the testimony of the witnesses presented by Trinidad Neyra, with reference to the signing of documents, in the bedroom of Encarnacion Neyra, in the afternoon of November 3, 1942. Teodora Neyra, Presentacion Blanco and Ceferina de la Cruz testified, however, that when the thumbmark of Encarnacion Neyra was affixed to the agreement in question, dated November 3, 1942, she was sleeping on her bed in the sala; and that the attesting witnesses were not present, as they were in the caida.

But Ceferina de la Cruz also stated that the attesting witnesses signed the documents thumbmarked by Encarnacion Neyra, in the sala near her bed, thus contradicting herself and Teodora Neyra and Presentacion Blanco. Strange to say, Teodora Neyra, Presentacion Blanco and Ceferina de la Cruz also testified that Encarnacion Neyra's, thumbmark was affixed to the will, only in the morning of November 4, 1942, by Trinidad Neyra and one Ildefonso del Barrio, when Encarnacion was already dead. The testimony of Dr. Dionisio Parulan, alleged medical expert, as to the nature of effects of Addison's disease, is absolutely unreliable. He had never seen or talked to the testatrix Encarnacion Neyra. According to medical authorities, persons suffering from Addison's disease often live as long as ten (10) years, while others die after a few weeks only, and that as the disease progresses, asthenia sets in, and from 80 per cent to 90 per cent of the patients develop tuberculosis, and complications of the heart also appear. (Cecil, Textbook of Medicine, 3d ed., 1935, pp. 1250-1253; McCrae, Osler's Modern Medicine, 3d ed., Vol. V, pp. 272-279.) And it has been conclusively shown that Encarnacion Neyra died on November 4, 1942, due to a heart attack, at the age of 48, after an illness of about two (2) years. In connection with mental capacity, in several cases, this court has considered the testimony of witnesses, who had known and talked to the testators, more trustworthy than the testimony of the alleged medical experts. Insomnia, in spite of the testimony of two doctors, who testified for the opponents to the probate of a will, to the effect that it tended to destroy mental capacity, was held not to effect the full possession of mental faculties deemed necessary and sufficient for its execution. (Caguioa vs. Calderon, 20 Phil., 400.) The testatrix was held to have been compos mentis, in spite of the physician's testimony to the contrary, to the effect that she was very weak, being in the third or last stage of tuberculosis. (Yap Tua vs. Yap Ca Kuan and Yap Ca Llu,

27 Phil., 579.) The testimony of the attending physician that the deceased was suffering from diabetes and had been in a comatose condition for several days, prior to his death, was held not sufficient to establish testamentary incapacity, in view of the positive statement of several credible witnesses that he was conscious and able to understand what was said to him and to communicate his desires. (Samson vs. Corrales Tan Quintin, 44 Phil., 573.) Where the mind of the testator is in perfectly sound condition, neither old age, nor ill health, nor the fact that somebody had to guide his hand in order that he might sign, is sufficient to invalidate his will (Amata and Almojuela vs. Tablizo, 48 Phil., 485.) Where it appears that a few hours and also a few days after the execution of the will, the testator intelligently and intelligibly conversed with other persons, although lying down and unable to move or stand up unassisted, but could still effect the sale of property belonging to him, these circumstances show that the testator was in a perfectly sound mental condition at the time of the execution of the will. (Amata and Almojuela vs. Tablizo, 48 Phil., 485.) Presentacion Blanco, in the course of her cross-examination, frankly admitted that, in the morning and also at about 6 o'clock in he afternoon of November 3, 1942, Encarnacion Neyra talked to her that they understood each other clearly, thus showing that the testatrix was really of sound mind, at the time of signing and execution of the agreement and will in question. It may, therefore, be reasonably concluded that the mental faculties of persons suffering from Addison's disease, like the testatrix in this case, remain unimpaired, partly due to the fact that, on account of the sleep they enjoy, they necessarily receive the benefit of physical and mental rest. And that like patients suffering from tuberculosis, insomnia or diabetes, they preserve their mental faculties until the moments of their death. Judging by the authorities above cited, the logical conclusion is that Encarnacion Neyra was of sound mind and possessed the necessary testamentary and mental capacity, at the time of the execution of the agreement and will, dated November 3, 1942.

The contention that the attesting witnesses were not present, at the time Encarnacion Neyra thumbmarked the agreement and will in question, on her bed, in the sala of the house, as they were allegedly in the caida, is untenable. It has been fully shown that said witnesses were present, at the time of the signing and execution of the agreement and will in question, in the sala, where the testatrix was lying on her bed. The true test is not whether they actually saw each other at the time of the signing of the documents, but whether they might have seen each other sign, had they chosen to do so; and the attesting witnesses actually saw it all in this case. (Jaboneta vs. Gustilo, 5 Phil., 541.) And the thumbmark placed by the testatrix on the agreement and will in question is equivalent to her signature. (Yap Tua vs. Yap Ca Kuan and Yap Ca Llu, 27 Phil., 579.) Teodora Neyra and her principal witnesses are all interested parties, as they are children of legatees named in the will, dated September 14, 1939, but eliminated from the will, dated November 3, 1942. Furthermore, the testimony of Teodora Neyra and her witnesses, to the effect that there could have been no reconciliation between the two sisters, and that the thumbmark of Encarnacion Neyra was affixed to the documents embodying the agreement, while she was sleeping, on November 3, 1942, in their presence; and that her thumbmark was affixed to the will in question, when she was already dead, in the morning of November 4, 1942, within their view, is absolutely devoid of any semblance of truth. Said testimony is contrary to common sense. It violates all sense of proportion. Teodora Neyra and her witnesses could not have told the truth; they have testified to deliberate falsefoods; and they are, therefore, absolutely unworthy of belief. And to the evidence of the petitioners is completely applicable the legal aphorism falsus in uno, falsus in omnibus. (Gonzales vs. Mauricio, 53 Phil., 728, 735.) To show the alleged improbability of reconciliation, and the execution of the two documents, dated November 3, 1942, petitioners have erroneously placed great emphasis on the fact that, up to October 31, 1942, the two sisters Encarnacion and Trinidad Neyra were bitter enemies. They were banking evidently on the common belief that the hatred of relatives is the most violent. Terrible indeed are the feuds of relatives and difficult the

reconciliation; and yet not impossible. They had forgotten that Encarnacion Neyra was a religious woman instructed in the ancient virtues of the Christian faith, and hope and charity, and that to forgive is a divine attribute. They had also forgotten that there could be no more sublime love than that embalmed in tears, as in the case of a reconciliation. It was most natural that there should have been reconciliation between the two sisters, Encarnacion and Trinidad Neyra, as the latter is the nearest relative of the former, her only sister of the whole blood. The approach of imminent death must have evoked in her the tenderest recollections of family life. And believing perhaps that her little triumphs had not always brought her happiness, and that she had always been just to her sister, who had been demanding insistently what was her due, Encarnacion finally decided upon reconciliation, as she did not want to go to her eternal rest, with hatred in her heart or wrath upon her head. It was, therefore, most logical that Encarnacion should make Trinidad the benificiary of her generosity, under her last will and testament, and end all her troubles with her, by executing said agreement, and thus depart in perfect peace from the scenes of her earthly labors. It having been shown that the said compromise or agreement had been legally signed and executed by Encarnacion Neyra on November 3, 1942, in the presence of credible and trustworthy witnesses, and that she was compos mentis and possessed the necessary testamentary and mental capacity of the time; the petition for the reconsideration filed by Atty. Lucio Javillonar, on November 23, 1942, on behalf of a client, Encarnacion Neyra, who had been dead since November 4, 1942, and some of her relatives, who have appeared, in accordance with the provisions of section 17 of Rule 3 of the Rules of Court, is hereby denied; and the decision of the Court of Appeals for Manila, dated November 10, 1942, dismissing the appeal, is hereby re-affirmed, without costs. So ordered. Ozaeta, Perfecto, Hilado, and Bengzon, JJ., concur.

C.A. No. 4

March 21, 1946

In the matter of the testate estate of the late Encarnacion Neyra. TRINIDAD NEYRA, petitioner-appellee, vs. TEODORA NEYRA, PILAR DE GUZMAN and MARIA JACOBO VDA. DE BLANCO, oppositors-appellants. TEODORA NEYRA, PILAR DE GUZMAN and MARIA JACOBO VDA. BLANCO, petitioners-appellants, vs. TRINIDAD NEYRA and EUSTAQUIO MENDOZA, oppositorsappellees. Lucio Javillonar for oppositors and appellants. Alejandro M. Panis for applicants and appellees. DE JOYA, J.: This is an appeal from a decree rendered by the Hon. Gervasio Diaz, Judge of the Court of First Instance of the City of Manila, on December 3, 1943, admitting to probate a will dated November 3, 1942, executed by the deceased Encarnacion Neyra; at the same time denying the probate of a previous will dated September 14, 1939, alleged to have been executed by the said testatrix.

Trinidad Neyra, beneficiary in the will executed on November 3, 1942, filed, on November 10, 1942, a petition in the Court of First Instance of Manila, for the probate of said will. On December 19, 1942, Teodora Neyra, Pilar de Guzman, and Maria Jacobo Vda. de Blanco, who had not been named as beneficiaries in said will, filed on opposition to the probate of the said will dated November 3, 1942, alleging (1) that at the time of the alleged execution of the said will, the testatrix Encarnacion Neyra no longer possessed testamentary capacity; (2) that her thumb marks on said instrument had been procured by means of fraud by petitioner Trinidad Neyra, and that Encarnacion Neyra never intended to consider said document as will; (3) that the alleged will, dated November 3, 1942, had not been executed in the manner and form prescribed by law; and(4) that Encarnacion Neyra, since September 14, 1939, had executed a will, naming as beneficiaries said oppositors and others, and that said will had never been revoked or amended in any manner whatsoever. On December 26, 1942, petitioner Trinidad Neyra filed a reply denying the allegations in the opposition. Subsequently, said oppositors filed a counter petition, asking for the probate of the first will executed by Encarnacion Neyra, on September 14, 1939, marked as Exhibit 16. On March 16, 1943, the legatees Trinidad Neyra and Eustaquio Mendoza filed their opposition to the probate on said will marked as Exhibit 16, and amended said opposition, on September 15, 1943, to which Teodora Neyra and the others filed a reply, on September 20, 1943. On the dates set for the hearing on the petition filed by Trinidad Neyra, and the counter petition mentioned above, said petitioner as well as the oppositors, presented evidence, testimonial and documentary. The witnesses presented by the petitioner Trinidad Neyra were Mons. Vicente Fernandez, Rev. Fr. Teodoro Garcia, Sor. Andrea Montejo, Dr. Moises B. Abad, Dr. Eladio A. Aldecoa, Atty. Ricardo Sikat, petitioner Trinidad Neyra herself, and Atty. Alejandro M. Panis, who had acted as scrivener in the preparation of said will dated November 3, 1942.

Teodora Neyra and the other oppositors also presented several witnesses, the principal among whom were Presentacion Blanco, Caferina de la Cruz, Acislo Manuel, Dr. Dionisio Parulan, an alleged medical expert, and the oppositors Teodora Neyra and Pilar de Guzman themselves. After considering the evidence, the lower court rendered a decree admitting to probate the will dated November 3, 1942; at the same time denying the probate of the will dated September 14, 1939. From said decision Teodora Neyra and the other oppositors appealed to the Court of Appeals for the City of Manila, assigning several errors, which may be reduced to the following, to wit, that the trial court erred (1) in finding that Encarnacion Neyra wanted to make a new will; (2) in declaring that there was reconciliation between Encarnacion Neyra and her sister Trinidad; (3) in accepting as satisfactory the evidence submitted by the petitioner; (4) in ignoring the evidence submitted by the oppositors; and (5) in not admitting to probate the will dated September 14, 1939. The evidence, testimonial and documentary, adduced during the trial of the case in the court below, has satisfactorily and sufficiently established the following facts: That Severo Neyra died intestate in the City of Manila, on May 6, 1938, leaving certain properties and two children, by his first marriage, named Encarnacion Neyra and Trinidad Neyra, and several other relatives; that after the death of Severo Neyra, the two sisters, Encarnacion Neyra and Trinidad Neyra, had serious quarrels, in connection with the properties left by their deceased father, and so serious were their dissensions that, after March 31, 1939, they had two litigations in the Court of First Instance of Manila, concerning said properties (Exhibits 8 and 9): In the first case, filed on March 31, 1939, Trinidad Neyra and others demanded from Encarnacion Neyra et al. the annulment of the sale of the property located at No. 366 Raon Street, Manila, and it was finally decided in favor of the defendants in the Court of First Instance and in the Court of Appeals, on December 21, 1943 (G.R. No. 8162, Exhibit 9). In the second case, filed on October 25, 1939, Trinidad Neyra

demanded from Encarnacion Neyra, one-half () of the property described therein, and one-half () of the rents, and the Court of First Instance decided in favor of the plaintiff, but at the same time awarded in favor of the defendant P727.77, under her counterclaim; and Trinidad Neyra again elevated the case to the Court of Appeals for Manila (G.R. No. 8075) Exhibit 8, which was decided, pursuant to the document of compromise marked as Exhibit D; and the petition for reconsideration filed therein still remains undecided. That Encarnacion Neyra, who had remained single, and who had no longer any ascendants, executed a will on September 14, 1939, marked Exhibit 16, disposing of her properties in favor of the "Congregacion de Religiosas de la Virgen Maria" and her other relatives named Teodora Neyra, Pilar de Guzman and Maria Jacobo Vda. de Blanco, making no provision whatsoever in said will in favor of her only sister Trinidad Neyra, who had become her bitter enemy; that when the said will was brought to the attention of the authorities of said Congregation, after due deliberation and consideration, said religious organization declined the bounty offered by Encarnacion Neyra, and said decision of the Congregation was duly communicated to her; that in order to overcome the difficulties encountered by said religious organization in not accepting the generosity of Encarnacion Neyra, the latter decided to make a new will, and for that purpose, about one week before her death, sent for one Ricardo Sikat, an attorney working in the Law Offices of Messrs. Feria and LaO, and gave him instructions for the preparation of a new will; that Attorney Sikat, instead of preparing a new will, in accordance with the express instructions given by Encarnacion Neyra, merely prepared a draft in the form of a codicil, marked as Exhibit M, amending said will, dated September 14, 1939, again naming said religious organization, among others, as beneficiary, and said draft of a codicil was also forwarded to the authorities of the said religious organization, for their consideration and acceptance. In the meanwhile, Encarnacion Neyra had become seriously ill, suffering from Addison's disease, and on October 31, 1942, she sent for her religious adviser and confessor, Mons. Vicente Fernandez of the Quiapo Church to make confession, after which she expressed her desire to have a mass celebrated in her house at No. 366 Raon

Street, City of Manila, so that she might take holy communion, in view of her condition; that following the request of Encarnacion Neyra, Mons. Fernandez caused the necessary arrangements to be made for the celebration of holy mass in the house of Encarnacion Neyra, and, as a matter of fact, on November 1, 1942, holy mass was solemnized in her house, Fr. Teodoro Garcia, also of the Quiapo Church, officiating in said ceremony, on which occasion, Encarnacion Neyra, who remained in bed, took holy communion; that after said religious ceremony had been terminated, Father Garcia talked to Encarnacion Neyra and advised reconciliation between the two sisters, Encarnacion Neyra and Trinidad Neyra. Encarnacion Neyra accepted said advice and at about noon of the same day (November 1, 1942), sent Eustaquio Mendoza to fetch her sister Trinidad Neyra, who came at about 2:30 that same afternoon; that on seeing one another, the two greeted each other in a most affectionate manner, and became reconciled; that the two had a long and cordial conversation, in the course of which the two sisters also talked about the properties left by their deceased father and their litigations which had reached the Court of Appeals for the City of Manila, and they agreed to have the said appeal dismissed, on the condition that the property involved therein, consisting of a small house and lot, should be given exclusively to Trinidad Neyra, on the condition that the latter should waive her claim for her share in the rents of said property, while under the administration of Encarnacion Neyra, and that the two should renounce their mutual claims against one another. It was also agreed between the two sisters to send for Atty. Alejandro M. Panis, to prepare the necessary document embodying the said agreement, but Attorney Panis could come only in the afternoon of the following day, November 2, 1942, when Encarnacion gave him instructions for the preparation of the document embodying their agreement, and other instructions relative to the disposition she wanted to make of her properties in her last will and testament; that Attorney Panis prepared said document of compromise or agreement marked as Exhibit D, as well as the new will and testament marked as Exhibit C, naming Trinidad Neyra and Eustaquio Mendoza beneficiaries therein, pursuant to the express instructions given by Encarnacion Neyra, and said instruments were ready for signature on November 3, 1942; that in the afternoon of that day, November 3, 1942; Attorney Panis read said will and testament marked as Exhibit D to Encarnacion Neyra slowly and in a loud voice, in the presence of Fr. Teodoro Garcia, Dr.

Moises B. Abad, Dr. Eladio Aldecoa, herein petitioner Trinidad Neyra, and others, after which he asked her if its terms were in accordance with her wishes, if she had anything else to add, or anything to be changed in said will; and as Encarnacion Neyra stated that the terms of said will were in accordance with her wishes and express instructions, she asked for the pad and the will Exhibit C and, with the help of a son of herein petitioner, placed her thumb mark at the foot of said will, in the presence of the three attesting witnesses, Dr. Moises B. Abad, Dr. Eladio R. Aldecoa, and Atty. Alejandro M. Panis, after which the attesting witnesses signed at the foot of the document, in the presence of the testatrix Encarnacion Neyra, and of each and everyone of the other attesting witnesses. Fr. Teodoro Garcia and petitioner Trinidad Neyra and several others were also present. On November 4, 1942, the testatrix Encarnacion Neyra, due to a heart attack, unexpectedly died. Although the "Congregacion de Religiosas de la Virgen Maria" had again decided not to accept the provision made in its favor by the testatrix Encarnacion Neyra in the proposed codicil prepared by Atty. Ricardo Sikat, said decision could not be communicated to the testatrix, before her death. Mons. Vicente Fernandez and Fr. Teodoro Garcia testified as to the request made on October 31, 1942, by Encarnacion Neyra for the celebration of holy mass in her house, on November 1, 1942; that said mass was in fact solemnized in her house, on that date, in the course of which the testatrix Encarnacion Neyra took holy communion; that on the same day, after the mass, Encarnacion held a long conversation with Father Garcia, in the course of which, said priest advised her to have reconciliation with her sister Trinidad; and that said advise was accepted by Encarnacion. But the testimony of Trinidad Neyra, it has been shown that Encarnacion sent Eustaquio Mendoza to fetch her, and that in fact she came to the house of Encarnacion, at about 2:30 o'clock in the afternoon that same day, November 1, 1942, with said Eustaquio Mendoza; that on seeing one another, Encarnacion and Trinidad Neyra greeted each other most affectionately, forgiving one

another, after which they talked about the property left by their deceased father and the litigation pending between them; and the two sisters agreed to settle their case, which had been elevated to the Court of Appeals for the City of Manila, concerning a certain house and lot, on the understanding that said property should be given exclusively to Trinidad, and that the latter should renounce her claim against Encarnacion, for her share in the rents collected on said property, and, at the same time, Encarnacion renounced her claim for P727.77 against Trinidad; and that it was also agreed between the two sisters that Atty. Alejandro M. Panis should be called to prepare the necessary papers for the settlement of said case. Presentacion Blanco, a witness for the oppositors, also testified substantially to the foregoing facts. By the testimony of Trinidad Neyra and Atty. Alejandro M. Panis, and the other attesting witnesses, it has also been shown that Atty. Alejandro M. Panis came in the afternoon of the following day, November 2, 1942, and received instructions from Encarnacion Neyra, not only for the preparation of said agreement, but also for the preparation of a new will, and consequently Attorney Panis prepared said document of compromise and the will, dated November 3, 1942, which were both thumb marked, in duplicate, in the afternoon of that day, by Encarnacion Neyra, who was then of sound mind, as shown by her appearance and conversation, aided by a son of Trinidad Neyra, on her bed in the sala, in the presence of the attesting witnesses, Dr. Moises B. Abad, Dr. Eladio R. Aldecoa, and Atty. Alejandro M. Panis, who signed in the presence of the testatrix and of each other. Father Teodoro Garcia was also present at the signing of the will, at the request of Encarnacion Neyra, and so was Trinidad Neyra. On November 4, 1942, due to a heart attack as a consequence of Addison's disease, perhaps, Encarnacion Neyra expired, at about 3 o'clock in the morning. Oppositor Teodora Neyra, her young daughter Ceferina de la Cruz, and Presentacion Blanco, daughter of oppositor Maria Jacobo Vda. de Blanco, practically corroborated the testimony of the witnesses of the petitioner, with reference to the signing of documents, in the

bedroom of Encarnacion Neyra, on November 3, 1942. Teodora Neyra, Presentacion Blanco and Ceferina de la Cruz, witnesses for the oppositors, testified, however, that when the thumb mark of Encarnacion Neyra was affixed, as stated above, to the document of compromise in question, dated November 3, 1942, she was sleeping on her bed in the sala; and that the attesting witnesses were not present, as they were in the caida. But Ceferina de la Cruz, witness for the oppositors, also stated that the attesting witnesses signed the documents thumb marked by Encarnacion Neyra, in the sala near her bed, thus contradicting herself and Teodora Neyra and Presentacion Blanco. Strange to say, Teodora Neyra, Presentacion Blanco and Ceferina de la Cruz also testified that Encarnacion Neyra's thumb mark was affixed to the will, only in the morning of November 4, 1942, by Trinidad Neyra and Ildefonso del Barrio, when Encarnacion was already dead. The testimony of Dr. Dionisio Parulan, alleged medical expert, as to the nature and effects of Addison's disease, is absolutely unreliable. He had never seen or talked to the testatrix Encarnacion Neyra. According to the medical authorities, the cause or causes of the sleeping sickness, known as Addison's disease, are not yet fully known: that persons attacked by said decease often live as long as ten (10) years after the first attack, while others die after a few weeks only, and that as the disease, progresses, asthenia sets in, and from 80 per cent to 90 per cent of the patients develop tuberculosis, and complications of the heart also appear. (Cecil, Textbook of Medicine, 3d ed., 1935, pp. 1250, 1252, 1253; MaCrae, Osler's Modern Medicine, 3d ed., Vol. V. pp. 272-279). And it has been conclusively shown in this case that the testatrix Encarnacion Neyra, at the age of 48, died on November 4, 1942, due to a heart attack, after an illness of about two (2) years. In connection with testamentary capacity, in several cases, this

court has considered the testimony of witnesses, who had known and talked to the testators, more trustworthy than the testimony of alleged medical experts. Testamentary capacity is the capacity to comprehend the nature of the transaction in which the testator is engaged at the time, to recollect the property to be disposed of, and the persons who would naturally be supposed to have claims upon the testator, and to comprehend the manner in which the instrument will distribute his property among the objects of his bounty. (Bugnao vs. Ubag. 14 Phil., 163.) Insomnia, in spite of the testimony of two doctors who testified for the opponents to the probate of a will, who stated that it tended to destroy mental capacity, was held not to affect the full possession of the mental faculties deemed necessary and sufficient for its execution. (Caguioa vs. Calderon, 20 Phil., 400.) The testatrix was held to have been compos mentis, in spite of the physician's testimony to the contrary, to the effect that she was very weak, being in the third or last stage of tuberculosis. (Yap Tua vs. Yap Ca Kuan and Yap Ca Llu, 27 Phil., 579.) The testimony testimony of the attending physician that the deceased was suffering from diabetes and had been in a comatose for several days, prior to his death, was held not sufficient to establish testamentary incapacity, in view of the positive statement of several credible witnesses that he was conscious and able to understand what said to him and to communicate his desires. (Samson vs. Corrales Tan Quintin, 44 Phil., 573.) Where the mind of the testator is in perfectly sound condition, neither old age, nor ill health, nor the fact that somebody had to guide his hand in order that he might sign, is sufficient to invalidate his will. (Amata and Almojuela vs. Tablizo, 48 Phil., 485.) Where it appears that a few hours and also a few days after the execution of the will, the testator intelligently and intelligibly conversed with other persons, although lying down and unable to move or stand up unassisted, but could still effect the sale of property belonging to him, these circumstances show that the testator was in a perfectly sound mental condition at the time of executing the will. (Amata and Almojuela vs. Tablizo, 48 Phil., 485.)

Presentacion Blanco, in the course of her cross-examination, frankly admitted that, in the morning and also at about 6 o'clock in the afternoon of November 3, 1942, Encarnacion Neyra talked to her and that they understood each other clearly, thus showing that the testatrix was really of sound mind, at the time of the signing and execution of the agreement and will in question. It may, therefore, be reasonably concluded that the mental faculties of persons suffering from Addison's disease, like the testatrix in this case, remain unimpaired, partly due to the fact that, on account of the sleep they enjoy, they necessarily receive the benefit of physical and mental rest. And that like patients suffering from tuberculosis, insomnia or diabetes, they preserve their mental faculties until the moments of their death. Judging by the authorities above cited, the conclusion made the trial court that the testatrix Encarnacion Neyra was of sound mind and possessed testamentary capacity, at the time of the execution of the will, cannot be properly disturbed. The oppositors also claim that the attesting witnesses were not present, at the time that the testatrix thumbed marked the will in question, on her bed, in the sala of the house, as they were allegedly in the caida. But it has been fully shown that the attesting witnesses were present at the time of the signing and execution of the agreement and will in question, in the sala, where the testatrix was lying on her bed. The true test is not whether they actually saw each other, at the time of the signing of the will, but whether they might have seen each other sign, had they chosen to do so; and the attesting witnesses actually saw it in this case. (Jaboneta vs. Gustilo, 5 Phil., 541.) And the thumbmark placed by the testatrix on the will is equivalent to her signature. (Yap Tua vs. Yap Ca Kuan and Yap Ca Llu, 27 Phil., 579.) The oppositors as well as their principal witnesses are all interested parties, as said oppositors had been named legatees in the will dated September 14, 1939, but eliminated from the will dated November 3, 1942. On the other hand, the witnesses for the petitioner are all

trustworthy men, who had absolutely no interest in the final outcome of this case. Two of them are ministers of the Gospel, while the three attesting witnesses are professional men of irreproachable character, who had known and seen and talked to the testatrix. Furthermore, the testimony of the oppositors and their witnesses, to the effect that there could have been no reconciliation between the two sisters, and that the thumb mark of Encarnacion Neyra was affixed to the document embodying the agreement, while she was sleeping, on November 3, 1942, in their presence; and that her thumb mark was affixed to the will in question, when she was already dead, in the morning of November 4, 1942, within their view is preposterous, to say the least. Said testimony is contrary to common sense. It violates all sense of proportion. The oppositors and their witnesses could not have told the truth; they have testified to brazen falsehoods; and they are, therefore, absolutely unworthy of belief. And to the evidence of the oppositors is completely applicable the rule falsus in uno, falsus in omnibus . (Gonzales vs. Mauricio, 53 Phil., 728, 735.) In the brief presented by counsel for the oppositors and the appellants, to show the alleged improbability of the reconciliation of the two sisters and the execution of the will, dated November 3, 1942, they have erroneously placed great reliance on the facts that, up to October 31, 1942, the two sisters Encarnacion and Trinidad Neyra were bitter enemies. They were banking evidently on the common belief that the hatred of relatives is the most violent. Dreadful indeed are the feuds of relatives, and difficult the reconciliation. But they had forgotten the fact that Encarnacion Neyra was a religious and pious woman instructed in the ancient virtues of Christian faith and hope and charity, and that it was godly to forgive and better still to forget. It was most natural that there should have been reconciliation between the two sisters, Encarnacion and Trinidad Neyra, as the latter is the nearest relative of the former, her only sister of the whole blood. The approach of imminent death must have evoked in her the tenderest recollections of childhood. And believing perhaps that her little triumphs had not always been fair to her sister who in fact, had had successively instituted two suits against her, to

recover what was her due, and for which Encarnacion believed she must atone, she finally decided upon reconciliation, so that she might depart in peace. The record shows that, of the two, Encarnacion lived in greater opulence, and that Trinidad had been demanding tenaciously her share; and as a Christian woman, Encarnacion must have known that no one has any right to enrich himself unjustly, at the expense of another. And it was, therefore, natural that Encarnacion should desire reconciliation with her sister Trinidad, and provide for her in her last will and testament. As for Eustaquio Mendoza, who, according to the evidence, had served Encarnacion Neyra for so many years and so well, it was also natural that she should make some provision for him, as gratitude is the noblest sentiment that springs from the human heart. The conduct of Encarnacion Neyra, in making altogether a new will, with new beneficiaries named therein, including principally her bitterest enemy of late, which is completely incompatible with the will, dated September 14, 1939, may really seem strange and unusual; but, as it has been truly said, above the logic of the head is the feeling in the heart, and the heart has reasons of its own which the head cannot always understand, as in the case of intuitive knowledge of eternal verity. As Encarnacion Neyra felt the advent of immortality, she naturally wanted to follow "the path of the just, which is as the shining light that shineth more and more unto the perfect day," so that her memory may be blessed. As a Christian woman, she must have loved justice, mercy and truth and to follow the law, for this is the whole duty of man. In the present case, the court cannot find any reason or justification to alter the conclusions set forth in the decree appealed from. This court will not reverse any findings of fact by the trial court made upon conflicting testimony and depending largely upon the credibility of witnesses, who testified in the presence of the trial judge, unless the court below failed to take into consideration some material facts or circumstances, or to weigh accurately all of the

material facts and circumstances presented to it for consideration. (Baltazar vs. Alberto, 33 Phil., 336; Melliza vs. Towle, 34 Phil., 345; Caragay vs. Urquiza, 53 Phil., 72, 79; Garcia vs. Garcia de Bartolome, 63 Phil., 419.) After a careful consideration of the evidence and the law of this case, we find it legally impossible to sustain any of the errors assigned by the appellants. The judgment appealed from is, therefore, affirmed, with costs against the appellants. So ordered. Ozaeta, Perfecto, Hilado, and Bengzon, JJ., concur.

G.R. Nos. L-46430-31 July 30, 1979 FRANCISCA ALSUA-BETTS, JOSEPH O. BETTS, JOSE MADARETA, ESTEBAN P. RAMIREZ, and THE REGISTER OF DEEDS FOR ALBAY PROVINCE, petitioners, vs. COURT OF APPEALS, AMPARO ALSUA BUENVIAJE, FERNANDO BUENVIAJE, FERNANDO ALSUA, represented by his guardian,

CLOTILDE S. ALSUA and PABLO ALSUA, respondents. Rafael Triumfante for petitioners. Sabido-Sabido & Associates and Madrid Law Office for private respondents.

children, Francisca Alsua-Betts, Pablo Alsua, Fernando Alsua thru this judicial guardian Clotilde Samson, and Amparo Alsua de Buenviaje, entered into a duly notarized agreement, Escritura de Particion Extrajudicial (Exhibit 8), over the then present and existing properties of the spouses Don Jesus and Do;a Florentina enumerated in a prepared inventory, Exhibit 8-A, the essential features of which are stated in private respondents' Brief, pp. 26-29, to wit: t.hqw

GUERRERO, J.: (1) Basis of the partition: Inventory (Annex A) of all the properties of the Alsua spouses, which inventory consists of 97 pages, all of them signed by the spouses and all the above named heirs in the left margin of every page (parafo primers).

This is an appeal by certiorari from the decision of the Court of Appeals in CA-G.R. Nos. 54492-R and 54493-R which reversed the decision of the Court of First Instance of Albay allowing the probate of the win of Don Jesus Alsua in Special Proceedings No. 699 and dismissing the complaint in Civil Case 3068 after declaring the two deeds of sale executed by Don Jesus Alsua legal and valid. The respondent court 1 denied the probate of the will, declared null and void the two sales subject of the complaint and ordered the defendants, petitioners herein, to pay damages to the plaintiffs, now the private respondents, the sum of Five Thousand Pesos (P5,000.00), to render an accounting of the properties in their possession and to reimburse the latter the net gain in the proportion that appertains to them in the properties from the date of the firing of the complaint up to complete restoration plus Fifty Thousand Pesos (P50,000.00) as attorney's fees and costs.

(2) An acknowledgment of the spouses that all the properties described in the inventory (Annex A) are conjugal properties with the exception of five parcels of land Identified with the figures of 1 to 5 and 30 shares of San Miguel Brewery stock which are paraphernal properties of the late Do;a Tinay (segundo parafo).

(3) An acknowledgment that during their marriage, they had nine children but five of them died minors, unmarried (parafo tercero y cuatro).

The antecedent events leading to consolidated actions are the following.

the

filing

of

these

two (4) An acknowledgment that on the basis of Article 1056 of the Civil Code (old) to avoid Possible misunderstanding among their children concerning the inheritance they are entitled to in the event of death of one of them they have decided to effectuate an extrajudicial partition of all the properties described in Annex "A" thereto under the following terms and conditions: (Parafo quinto):

On November 25, 1949, Don Jesus Alsua and his wife, Do;a Florentina Rella, both of Ligao, Albay, together with all their living

of cash deposited. To Francisca Alsua, married to Joseph O. Betts were allotted or assigned all the real properties with the improvements thereon specifically described from pages 1-12 of said inventory or, 34 parcels of land with a total land area of 5,720,364 sq. meters, with a book or appraised value of P69,740.00.

To Pablo Alsua, married to Teresa Locsin were allotted or assigned all the real properties with the improvements thereon specifically described from pages 12-20 of said inventory or, 26 parcels of land with a total land area of 5,679,262 sq. meters, with a book or appraised value of P55,940.00.

(b) That all the heirs acknowledge and admit that all the properties assigned to them as their hereditary portion represent one-half not only of the conjugal properties but includes the paraphernal properties waiving now and forever any complaint or claim they have or they may have concerning the amount, value, extension and location of the properties that are allotted to each and everyone. They also waive any claim they have or they may have over the remaining portion of the properties, which spouses reserved for themselves.

To Fernando Alsua, married to Clotilde Samson were allotted or assigned all the real properties with the improvements thereon specifically described from pages 20-33 of said inventory or, 47 parcels of land with a total land area of 6,639,810 sq. meters, with a book or appraised value of P89,300.00.

To Amparo Alsua, married to Fernando Buenviaje were allotted or assigned all the real properties with the improvements thereon specifically described from pages 33-47 of said inventory or, 47 parcels of land with a total land area of 5,630,715 sq. meters, with a book or appraised value of P58,830.00. t.hqw

(c) That in case of death of one of the spouses, each and everyone of the heirs acknowledge that the properties which are left in the possession of the surviving spouse, including any amount in cash, are even less than the one- half that should correspond in absolute ownership as his legitimate participation in the conjugal properties. In consequence they waive any claim that they have or may have over said portion of said properties or any amount in cash during the lifetime of the surviving spouse, including any right or claim they have or they may have over the paraphernal properties of Do;a Tinay in the event the surviving spouse is Don Jesus.

(a) Each and every one of the heirs named above acknowledge and admit that the totality of the properties allotted and adjudicated to the heirs as described in the preceding paragraph, constitute one half of the properties described in Annex "A", including any amount

(d) The spouses on their part in case of death of any one of them, the surviving spouse waives any claim he or she may have over the properties assigned or adjudicated to the heirs under and by virtue of this deed. The properties which were reserved for them (the spouses) should be considered as his or her legitimate participation in the conjugal properties and the fair compensation of his or her usufruct on the properties that the surviving spouse reserved for himself or herself which shag be distributed in equal shares among

the heirs upon his or her death unless said properties of some of them have been disposed of during the lifetime of the surviving spouse.

divided equally among the four children. The holographic will of Do;a Tinay written in Spanish reads, as translated: t.hqw

TESTAMENT (e) Any heir who may dare question the validity and legitimacy of the provision contained herein shall be under obligation to pay to the other heirs, in the concept of damages and prejudice, the sum of P5,000.00 plus attorney's fees.

(f) The provisions of this deed shall bind the successors of the herein heirs.

(g) In the event of death of one of the spouses, the properties assigned or adjudicated to each and everyone of the heirs shall be considered as his share or participation in the estate or as his inheritance left by the deceased and each heir shall become the absolute owner of the properties adjudicated to him under this deed.

I, FLORENTINA R. DE ALSUA, 67 years old, Filipina, married to Don Jesus Alsua, resident of and with postal address in the Municipality of Ligao, Province of Albay, Philippines, being in the full possession of my mental and physical faculties freely and spontaneously execute this my last will and testament in my handwriting and signed by me and expressed in the Spanish language which I speak, write and understand, this 5th day of January, 1955 in the Municipality of Ligao, Province of Albay, and in which I ordain and provide:

First: That in or about the year 1906 I was married to my husband Don Jesus Alsua and begot nine (9) children with him, four (4) of whom are still living and they are Francisco Alsua, Pablo Alsua, Fernando Alsua and Amparo Alsua. The other five (5) died during their minority, single and without children.

On January 5, 1955, Don Jesus and Do;a Florentina, also known as Do;a Tinay separately executed their respective holographic wills (Exhs. 6-B and 7-B), the provisions of which were in conformity and in implementation of the extrajudicial partition of November 25, 1949. Their holographic wills similarly provided for the institution of the other to his or her share in the conjugal properties, the other half of the conjugal assets having been partitioned to constitute their legitime among their four living children in the Extrajudicial Partition of 1949. The wigs also declared that in the event of future acquisitions of other properties by either of them, one-half thereof would belong to the other spouse, and the other half shall be

Second: That after my marriage to my husband Don Jesus Alsua and during our conjugal union, and as a result of our efforts and industry, we were able to acquire conjugal properties consisting of abaca (abales) and cacao lands and urban lands registered in the office of the Registry of Property of the Province of Albay and in the City of Manila.

Third: That I institute as my heirs with right to inherit the followingmy spouse Don Jesus Alsua, one-half (1/2) of my properties, real and personal, and the other half, to my children Francisco Alsua, married to Joseph O. Betts, Pablo Alsua, Fernando Alsua, married to Clotilde Samson, and Amparo Alsua, married to Fernando Buenviaje, in equal parts. It is to be understood, however, that the other half that corresponds as legitime to my above named children have already been given to them, pursuant to a document dated November 25, 1949 and ratified on the same day, month and year before Notary Public Segundo G. Flores (Reg. No. 525; Pag. 15; Lib. 11; Series of 1949) enjoining each and everyone of them to respect and faithfully comply with each and every clause contained in the said document.

(Joint Record on appeal pp. 420-423, CA-G.R. No. 54492-R)

As previously stated, Don Jesus Alsua executed a separate but similar holographic will on the same day, Jan. 5, 1955 in exactly the same terms and conditions as the above will of his wife.

Fourth: That should I acquire new properties after the execution of this testament, the same shall be partitioned among my spouse and above named children or the children mentioned in above par. 3 in the same proportion that is, one-half (1 1/2) to my spouse; and the other half to my children in equal parts.

On May 21, 1956, the spouses Don Jesus and Do;a Tinay filed before the Court of First Instance of Albay their respective petitions for the probate of their respective holographic wins which were docketed as Special Proceedings No. 484 (Jesus Alsua, Petitioner) and Special Proceedings No. 485 (Do;a Florentina Ralla de Alsua, Petitioner).

Fifth: That I name as my executor my husband Don Jesus Alsua without having to post any bond.

IN VIRTUE WHEREOF, I hereby sign in my own handwriting this testament on this 5th day of January, 1955 in the Municipality of Ligao, Province of Albay, Philippines. t.hqw

(SGD.) FLORENTINA R. DE ALSUA

On August 14, 1956, the spouses Don Jesus and Do;a Tinay executed their mutual and reciprocal codicils amending and supplementing their respective holographic wins. Again, the codicils similarly acknowledged and provided that one-half of all the properties of the spouses, conjugal and paraphernal, had been disposed of, conveyed to and partitioned among their legitimate heirs in the "Escritura de Particion" of November 25, 1949, but that they reserved for themselves (the spouses Don Jesus and Do;a Tinay) the other half or those not disposed of to the said legitimate heirs under the above agreement of partition, and that they mutually and reciprocally bequeathed unto each other their participation therein as well as in all properties which might be acquired subsequently. Each spouse also declared that should she or he be the surviving spouse, whatever belongs to him or her or would pertain to him or her, would be divided equally among the four children. It was also declared in both codicils that upon the death of either of the spouses, the surviving spouse was designated mutually and reciprocally as the executor or administrator of all the

properties reserved for themselves.

among my children as their inheritance from the free portion of my property.

The codicil executed by Do;a Tinay, written in Spanish reads, as translated: t.hqw

CODICIL

I leave to my spouse Don Jesus Alsua as his legitime and as Ws inheritance the part of the free portion of my property which have not been allocated in favor of my children in the Document of Partition aforecited and that which should exceed 1/2 of the conjugal property of gains that pertains to him as above stated, including all those properties which we shall acquire after the execution of this document.

This codicil supplements and amends the preceding testament. That my spouse and I have agreed to divide the properties which we have acquired into 2 parts. The 1/2 that would correspond to me covers all the properties that I have partitioned among my children in the Document of Partition dated November 25, 1949 before Notary Public Segundo G. Flores, Jr. (Doc. No. 525; Pag. No. 15; Lib. No. 11; Series of 1949) (and) even as the properties which by reason of this testament I leave to my husband as his share and the other half that corresponds to my husband constitutes an the properties that up to now have not been disposed of, particularly the urban lands situated in Legaspi, Albay, Ligao of the Province of Albay and in the City of Manila, with the exception of that portion that I bequeath to my husband as his inheritance and his legitimate.

In case it should be God's will that I survive my spouse, I hereby declare that it is my will that any and all kinds of property that pertain to me or would pertain to me, which have not been disposed of pursuant to the partition, should be divided equally among my above-mentioned heirs after my death. Ligao, Albay, Philippines, August 14,1956. t.hqw

(SGD.) FLORENTINA RALLA DE ALSUA

(joint Record on Appeal pp. 423-425, CA-G.R. No. 54492-R) That I institute as my heirs with the right to inherit my husband Don Jesus Alsua and my children Francisco Alsua, Pablo Alsua, Fernando Alsua and Amparo Alsua. I leave to my aforecited children all the properties described in the above mentioned Document of Partition dated November 25, 1949 which correspond to each one of them and in the profits (fruits) expressed in the same, and in the event that the properties granted to one or any of my children should exceed in quantity or value those corresponding to another or others, I hereby declare that it is my will that the same be divided

And as stated previously, on the same day, August 14, 1956, Don Jesus executed also a separate but similar codicil in exactly the same terms and conditions as the above codicil of his wife. Also on the same day of August 14, 1956, the spouses Don Jesus and Do;a Tinay both filed their respective supplemental petitions for the probate of their respective codicils in the probate proceedings

earlier filed. On February 19, 1957, their respective holographic wins and the codicils thereto were duly admitted to probate.

Upon the death of Do;a Tinay on October 2, 1959, Don Jesus was named executor to serve without bond in an order issued by the probate court on October 13, 1959. Letters testamentary having been issued in favor of Don Jesus, he took his oath of office and performed his duties as such until July 1, 1960.

Do;a Tinay had been paid, all her heirs including Don Jesus, submitted to the probate court for approval a deed of partition executed on December 19, 1959 (Exh. 7-Q) and which essentially confirmed the provisions of the partition of 1949, the holographic will and codicil of Do;a Tinay. On July 6, 1960, the court approved the partition of 1959 and on January 6, 1961 declared the termination of the proceedings on the estate of Do;a Tinay.

On May 6,1964, Don Jesus Alsua died. Thereafter in the early part of November, 1959, Don Jesus cancelled his holographic will in the presence of his bookkeeper and secretary, Esteban P. Ramirez, whom he instructed to make a list of all his remaining properties with their corresponding descriptions. His lawyer, Atty. Gregorio imperial Sr. was then instructed to draft a new will which was duly signed by Don Jesus and his attesting witnesses on November 14, 1959 at Ms home in Ligao, Albay. This notarial will and testament (Exh. A) of Don Jesus executed on November 14, 1959 had three essential features: (a) it expressly cancelled, revoked and annulled all the provisions of Don Jesus' holographic will of January 5, 1955 and his codicil of August 14, 1956; (b) it provided for the collation of all his properties donated to his four living children by virtue of the "Escritura de Particion Extra. judicial" of 1949, and that such properties be taken into account in the partition of his estate among the children; and (c) it instituted his children as legatees/devisees of certain specific properties, and as to the rest of the properties and whatever may be subsequently acquired in the future, before his death, were to be given to Francisca and Pablo, naming Francesca as executrix to serve without a bond.

After all debts, funeral charges and other expenses of the estate of

On May 20, 1964, petitioner herein Francisca Alsua Betts, as the executrix named in the will of November 14, 1959, filed a petition for the probate of said new will of Don Jesus Alsua before the Court of First Instance of Albay and was docketed as Special Proceedings No. 699. Oppositions thereto were filed by Pablo, Amparo and Fernando, thru his judicial guardian Clotilde Samson, on the following grounds: (a) that Don Jesus was not of sound and disposing mind at the time of the execution of the alleged will; (b) that the will was executed under duress or influence of fear or threats; or it was procured by undue and improper pressure and influence on the part of the main beneficiaries and of person or persons in collusion with them, or the signature of the testator was secured by or thru fraud; (c) that the will was not executed according to the formal requirements of the law; and (d) that the alleged will subject of probate contravened the Extrajudicial Partition of 1949 agreed upon by him, his deceased spouse, Do;a Tinay, and all his children, Francisco, Pablo, Amparo and Fernando thru his judicial guardian Clotilde Samson, and also contravened Don Jesus' own probated holographic will and codicil of 1955 and 1956, respectively, essentially confirming and implementing the said partition of 1949 which had already been partially executed by all the signatories thereto in the partition of the estate of Do;a Tinay in December, 1959.

Don Jesus executed on November 14, 1959. On the basis of Francisca's designation as executrix in the new will dated November 14, 1959, the Probate Court appointed her Administratrix of the estate of her late father, Don Jesus Alsua. She then filed with the Probate Court an inventory of the properties of the estate which, according to the oppositors therein (the private respondents now) did not include some properties appearing in the agreement of November 25. 1949 or in the inventory attached thereto as Annex "A" and in the "Escritura de Particion" of December 19, 1959 as belonging to or should pertain to Don Jesus. According to the oppositors, these properties consist of thirty- three (33) premium agricultural lots with a total land area of 1,187,970 square meters, or approximately 119 hectares and with a total assessed value of P48,410.00 or a probable total market value of P238,000.00 at only P2,000.00 per hectare, and four (4) commercial urban lots Ideally located in the business section of Legazpi City including the lot and the building presently occupied by the wellknown "Mayon Hotel" with an assessed value of approximately P117,260.00 or a probable market value at the time of P469,040.00. It appearing from the new will that these properties were bequeathed to Pablo Alsua and Francisco Alsua-Betts, specifically, 3 parcels of the 33 agricultural lands to Pablo and the rest to Francisco, the oppositors also raised in issue the non-inclusion of said properties in the inventory of the estate of their late father. In answer, Francisco claimed ownership over the same, alleging that she bought the properties from their father and presenting the two Deeds of Sale now being assailed, one dated August 26, 1961 purporting to show the sale of the 33 parcels of agricultural land to Francisco by their father for the price of P70,000.00 and the other dated November 26, 1962 evidencing the sale of the four urban lots for the sum of P80,000.00. Claiming fraud in the sales, the oppositors filed Civil Case No. 3068, seeking the annulment of the aforesaid two deeds of sale, with damages, which upon agreement of the parties was then jointly heard and tried with Special Proceedings No. 699 for probate of the Last Will and Testament of

After a joint hearing of the merits of these two cases, the Court of First Instance of Albay promulgated a decision on January 15, 1973, the dispositive portion of which states: t.hqw

WHEREFORE, in view of all the foregoing, judgment is hereby rendered, to wit:

1. In Special Proceedings 699, the Court hereby APPROVES and ALLOWS the Will executed by Don Jesus Alsua at Ligao, Albay, on November 14, 1959, which had been marked as Exhibit A, consisting of nine (9) pages, and orders that the same be made the basis for division and distribution of the estate of said testator;

2. In Civil Case 3068, the Court hereby dismisses the complaint and holds that the sale on August 26, 1961 (Exh. U) and the sale on November 26, 1962 (Exh. W), are lawful and valid sales and accordingly conveyed title to the VENDEE thereof. The Plaintiffs in Civil Case 3068. are ordered jointly and severally to pay to the defendant, Francisco Alsua Betts Fifty Thousand Pesos (P50,000.00) as damages and Fifty Thousand (P50,000.00) Pesos for attorney's fees or a total of One Hundred Thousand Pesos (P100,000.00) and to pay the costs.

On appeal by herein respondents to the Court of Appeals, the court reversed the appealed decision in a judgment rendered on April 4, 1977, the dispositive portion of which states, as translated, thus

t.hqw III. The respondent court's finding is grounded entirely on speculation, surmises or conjectures resulting in a gross misapprehension of facts.

IN VIEW OF THE FOREGOING, this Tribunal finds itself constrained to set aside as it hereby sets aside the decision appealed from in the following manner: (1) in Special Proceedings 699, the probate of the will, Exh. A, is hereby denied; (2) in Civil Case No. 3068, Exhs. U and W and the titles issued on the basis thereof are hereby declared null and void, ordering the appellees Francisco Alsua and Joseph Betts to pay to the plaintiffs in the concept of fixed damages, the sum of P5,000.00 and to render an accounting of properties in their possession and to reimburse the plaintiffs the net gain, in the proportion that appertains to them in the properties subject of litigation in Civil Case No. 3068 from the date of the filing of this complaint, up to the complete restoration of the properties pertaining to (plaintiffs) pursuant to Article 2208 of the New Civil Code, paragraph 11, ordering them in addition to pay to the plaintiffs and oppositors the sum of P50,000.00 as attorney's fees, and the costs.

IV. The respondent court grossly erred in annulling the sales of August 26, 1961 (Exh. U), and of November 26, 1962 (Exh. W).

Hence, the petition at bar assailing the respondent court's decision on four assigned errors, to wit: t.hqw

On the first issue of estoppel raised in the assignment of errors, We hold that the same is of no moment. The controversy as to the competency or incompetency of Don Jesus Alsua to execute his will cannot be determined by acts of the herein private respondents as oppositors to the will in formally agreeing in writing jointly with the petitioner Francisca Alsua de Betts that their father, Don Jesus Alsua, be appointed by the court executor of the will of their mother in Special Proceedings No. 485, Testate Estate of Do;a Florentina Ralla de Alsua and in subsequently petitioning the court not to require Don Jesus Alsua to file any accounting as executor in the proceedings, which petitioners claim and was upheld by the trial court as constituting estoppel on the part of the private respondents from questioning the competence of Don Jesus Alsua.

I. The respondent Court of Appeals erred in not affirming the findings of the probate court (Special Proceedings No. 699) that private respondents, oppositors to the probate of the will, are in estoppel to question the competence of testator Don Jesus Alsua.

II. The respondent Court of Appeals grossly erred in holding that testator Don Jesus Alsua cannot revoke his previous will.

The principle of estoppel is not applicable in probate proceedings, a ruling laid down in the case of Testate Estate of the Late Procopia Apostol Benedicta Obispo, et al vs. Remedios Obispo, 50 O.G. 614, penned by Justice J.B.L. Reyes, an eminent and recognized authority on Civil Law when he was still in the Court of Appeals, and We quote: t.hqw

Finally, probate proceedings involve public interest, and the application therein of the rile of estoppel, when it win block the ascertainment of the truth as to the circumstances surrounding the execution of a testament, would seem inimical to public policy. Over and above the interest of private parties is that of the state to see that testamentary dispositions be carried out if, and only if, executed conformably to law.

The next issue that commands Our attention is whether the respondent court erred in not allowing the probate of the last will and testament of Don Jesus Alsua. Petitioners claim that the disallowance was based on speculations, surmises or conjectures, disregarding the facts as found by the trial court. The Civil Court is very clear and explicit in providing the cases where a will may be disallowed under Article 839 which provides as follows: t.hqw

The Supreme Court of New York aptly said in Re Canfield's Will, 300 N.Y.S., 502: t.hqw

Art. 839. The will shall be disallowed in any of the following cases:

'The primary purpose of the proceeding is not to establish the existence of the right of any living person, but to determine whether or not the decedent has performed the acts specified by the pertinent statutes, which are the essential prerequisites to personal direction of the mode of devolution of his property on death. There is no legal but merely a moral duty resting upon a proponent to attempt to validate the wishes of the departed, and he may and frequently does receive no personal benefit from the performance of the act.

(1) If the formalities required by law have not been complied with;

(2) If the testator was insane, or otherwise mentally incapable of making a wilt at the time of its execution;

(3) If it was executed through force or under duress, or the influence of fear, or threats;

One of the most fundamental conceptions of probate law, is that it is the duty of the court to effectuate, in so far as may be compatible with the public interest, the devolutionary wishes of a deceased person (Matter of Watson's Wilt 262 N.Y., 284, 294, 186, N.E., 787; Matter of Marriman's Estate, 124 Misc. 320, 325, 208, N.Y.S., 672; Foley, S., affirmed 217 app. Div., 733, 216 N.Y.S., 126, Henderson, S., Matter of Draske's Estate, 160 Misc. 587, 593, 290, N.Y.S., 581). To that end, the court is, in effect, an additional party to every litigation affecting the disposal of the assets of the deceased. Matter of Van Valkenburgh's Estate, 164 Misc. 295, 298, N.Y.S., 219.'

(4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person;

(5) If the signature of the testator was procured by fraud,

(6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto.

The issue under consideration appears to Us to have been answered by the respondent court itself when it accepted the findings of the trial court on the due execution of the questioned will and testament of Don Jesus, declaring: t.hqw

... and going back to the previous question, whether the questioned will and testament of November 14, 1959, Exh. A, was executed in accordance with Arts. 805-809 of the New Civil Code, this Tribunal from the very beginning accepts the findings of the inferior court concerning the question, t.hqw

lawyers that he wanted to make a new will, and accordingly gave more detailed instructions as to how he wanted to divide his properties among his four children. He handed to them a list and on the left he indicated the name of the child to whom the listed properties shall pertain. Atty. Jorge Imperial took notes of the instructions of Don Jesus Alsua. To Don Jesus, Spanish is his major language, as in fact his conversations with Don Gregorio are always in Spanish. A few days before November 14, 1959, Atty. Jorge S. Imperial showed to Don Jesus the semi-final draft of the will and after reading it Don Jesus said that it was as directed by him, and after making a few minor corrections, he instructed Atty. Jorge S. Imperial to put the win in final form. He further told Atty, Jorge Imperial that the signing of the will should be at his home in Ligao, in the morning of November 14, 1959, and that the witnesses should be Mr. Ramon Balana, the then Register of Deeds of Albay; Mr. Jose Madarieta who is a friend of the family; and Mr. Jose Gaya who is a sort of employee of Don Jesus.

On October 2, 1959, Do;a Florentina died at Ligao, Albay. About 2 weeks after said death of his wife, Don Jesus Alsua decided to make a new will, thereby revoking and cancelling his previous holographic will which he made on January 5, 1955 and also its codicil dated August 14, 1956. In the presence of his bookkeeper and secretary, Esteban P. Ramirez, he crossed out in ink each and every page of said page he wrote on each page the word "cancelado", and affixed his signature thereon (Exh V-5, V-6, consecutively up to and including Exh. V-14). He then instructed Ramirez to make a list of all s properties with their corresponding descriptions.

Meanwhile, Don Jesus Alsua sent for his lawyer, Don Gregorio Imperial, Sr. and the latter came accompanied by his son, Atty. Jorge S, Imperial, who, incidentally, is now a judge of the Court of First Instance of Naga City, Camarines Sur. Don Jesus informed his

Thus in the morning of November 14, 1959, Don Gregorio and Atty. Jorge S. Imperial, riding in a sedan, stopped at the Legaspi residence of Mr. Ramon Balana, and informed the latter that Don Jesus was requesting him to be one of the attesting witnesses to his will. Mr. Balana, having a very high regard for Don Jesus, considered it an honor to be so asked, and gladly went with the Imperials. They arrived at the residence of Don Jesus at Ligao; Albay, almost ten o'clock of that morning, and they were ushered in by Mr. Jose Gaya, and the latter requested them to be seated at the usual receiving room on the ground floor while he announced their arrival to Don Jesus who was on the second floor. Soon Don Jesus came down, carrying with him the will to be signed placed inside a cartolina folder. He greeted Don Gregorio, Mr. Balan, and Atty. Imperial and immediately joined them in conversation. Mr. Gaya called for Mr. Jose Madarieta, whose residence is just across the road from the house of Don Jesus. Mr. Madarieta was already informed by Don

Jesus himself about the fact of signing the will that morning, and so, on being advised by Mr. Gaya that the Imperials had already arrived, Madarieta proceeded to the residence of Don Jesus, without much delay. With the coming of Madarieta and the coming back of Gaya, there were now six people gathered in the living room, namely: Don Jesus Alsua, Don Gregorio Imperial Atty. Jorge S. Imperial Mr. Ramon Balana, Mr. Jose Madarieta, and Mr. Jose Gaya. All the witnesses who testified for the petitioner declared that Don Jesus was in bright and lively conversation which ran from problems of farming and the merits of French-made wines. At 1 1:00 o'clock, Don Gregorio made a remark that it is about time to do what they were there for, and this was followed by a more or less statement from Jesus, who said: t.hqw

'Preisamente es por lo que he Hamado a ustedes que esten presentes para ser testigos de rni ultimo voluntad y testamento que ha sido preparado por el abogado Sr. Gregorio Imperial segun mis instrucciones cuyo documento tengo aqui conmigo y encuentro que, despues de lo he leido, esta satisfactoriamente hecho segun mis instrucciones, Como saben ustedes tengo cuatro (4) hijos todos egos.' (pp. 43-44, t.s.n., hearing of December 7, 1967, Sarte.

the same were passed to Mr. Jose Gaya who also signed as the third attesting witness. On each of the three sets, Don Jesus signed ten times, one on the margin of each of the nine pages, and at the end of the instrument proper. Each of the three attesting witnesses (Balana, Madarieta and Gaya) signed eleven times on each set, one on the margin of each of the nine pages, one at the end of the instrument proper and one below the attestation clause. The original will was marked as Exh. A (or set A); the duplicate as Exh. K (or set K) and the triplicate of Don Jesus, Mr. Balana, Mr. Madarieta, and Mr. Gaya were Identified by Mr. Balana, Mr. Madarieta and Atty. (now Judge) imperial. It was also clearly established that when Don Jesus signed the will Mr. Balana, Mr. Madarieta, and Mr. Gaya were present and witnessed said signing, and that when each of these three witnesses was signing, Don Jesus and the two other attesting witnesses were present and Witnessing said Signing. The signing by the testator and the attesting witnesses having been completed, Atty. Jorge S. Imperial as Notary Public with commission for the entire province of Albay, notarized the wilt and sealed it with his notarial seat which seal he brought along that morning. After all the three sets were notarized, they were all given back to Don Jesus who placed them inside the same folder. At that moment, it was already about 12:30 P.M. and Don Jesus invited all of them to lunch, which invitation was gladly accepted by all of then-L (pp. 474-480, Joint Record on Appeal in CA-G.R. No. 54492-R)

On request of Don Jesus, all of them moved to the big round table on another part of the same sala for convenience in signing because there were chairs all around this table. The will which consisted of nine pages, with a duplicate, and triplicate was laid on the round table and the signing began, with Atty. Jorge S. Imperial assisting each person signing by indicating the proper place where the signature shall be written. Don Jesus, as testator, signed first. After signing the original and the two other sets, the three sets were then passed to Mr. Ramon Balana who signed as attesting witness. After Mr. Balana, Mr. Jose Madarieta signed next as another attesting witness, and when Mr. Madarieta finished signing all the three sets,

which findings are supported by the evidence, - it is quite difficult to conclude that the same had not complied with the requirements of Arts. 804- 806 of the New Civil Code. ... (CA Decision, pp. 13-16, as translated).

This cited portion of the appealed decision accepts as a fact that the findings of the lower court declaring the contested will as having been executed with all the formal requirements of a valid will, are

supported by the evidence. This finding is conclusive upon this Tribunal and We cannot alter, review or revise the same. Hence, there is no further need for Us to dwell on the matter as both the lower court and the respondent appellate court have declared that these are the facts and such facts are fully borne and supported by the records. We find no error in the conclusion arrived at that the contested will was duly executed in accordance with law. We rule that the questioned last will and testament of Don Jesus Alsua fully complied with the formal requirements of the law.

1956, and further barring him from executing his new will and testament of November 14, 1959, now the subject of the probate proceedings elevated to this Court.

We do not agree with this ruling of the Court of Appeals. We hold that the Extrajudicial Partition of November 25, 1949 is null and void under Article 1056 in relation to Article 1271 of the old Civil Code which are applicable hereto. These Articles provide as follows: t. hqw

Respondent court, however, denied probate of the will after ,'noting certain details which were a little bit difficult to reconcile with the ordinary course of things and of life." First was the fact that the spouses Don Jesus and Do;a Tinay together with their four children Francisco, Pablo, Amparo and Fernando had executed the Extrajudicial Partition of November 25, 1949 (Exh. A) which divided the conjugal properties of the spouses between the spouses themselves and the children under the terms and conditions and dispositions herein before stated and to implement its provisions, Don Jesus and Do;a Tinay subsequently executed separately their respective holographic wigs both dated January 5, 1955 and codicils dated August 14, 1956 with the same terms and conditions as reproduced herein earlier. Both holographic wills and codicils having been probated thereafter and upon the death of Do;a Tinay, Don Jesus was appointed executor of the will and in due time the partition of the properties or estate of Do;a Tinay was approved by the probate court on July 6, 1960.

Art. 1056. If the testator should make a partition of his property by an act inter vivos, or by will, such partition shall stand in so far as it does not prejudice the legitime of the forced heirs. ...

Art. 1271. All things, even future ones, which are not excluded from the commerce of man, may be the subject-matter of contracts.

Nevertheless, no contract may be entered into with respect to future inheritances, except those the object of which is to make a division inter vivos of an estate, in accordance with Article 1056.

All services not contrary to law or to good morals may also be the subject- matter of contract. The respondent court ruled that the Extrajudicial Partition of November 25, 1949 was an enforceable contract which was binding on Don Jesus Alsua as the surviving spouse, barring him from violating said partition agreement, barring him from revoking his holographic will of January 5, 1955 and his codicil of August 14,

Article 1056 specifically uses the word "testator" from which the clear intent of the law may be deduced that the privilege of partitioning one's estate by acts inter vivos is restricted only to one

who has made a prior will or testament. In other words, Article 1056 being an exception cannot be given a wider scope as to include in the exception any person whether he has made a will or not.

Art. 1056. If the testator should make a partition of his property by an act inter vivos, or by will, such partition shall stand in so far as it does not prejudice the legitime of the forced heirs.

Respondent court citing the same Article concluded that under both the old and new Civil Code, a person who executes a will is permitted at the same time or a little thereafter or even before as long as he mentions this fact in the will, to partition his properties pursuant to the provisions of Article 1056 of the old Civil Code. The court further added that jurisprudence is to the effect that the partition presupposes the execution of the will that it ratifies or effectuates, citing the case of Legasto vs. Verzosa, 54 Phil. 776. Finally, respondent court held the opinion that the extrajudicial partition of November 14, 1949 was ratified in the holographic will executed by Don Jesus on Jan. 5, 1955 and in the codicil of August 14, 1956.

The Supreme Court of Spain, in a decision rendered on June 13, 1903, laid down the following doctrine:

Again, We do not agree with this ruling of the respondent court. In Legasto vs. Verzosa, supra, the Supreme Court categorically declared the necessity of a prior will before the testator can partition his properties among his heirs, and We quote the pertinent portions of the decision: t.hqw

Considering that the language of article 1056 cannot be interpreted to mean that a person may, by acts inter vivos, partition his property referred to in the section wherein said article is found, without the authority of a testament containing an expression of his last will, or the authority of law, for, otherwise, a partition thus made would be tantamount to making a will in a manner not provided for, authorized, nor included in the chapter referring to testaments, and especially, to the forms thereof, which is entirely different from the legal consequences of a free disposition made by parents during their lifetime, whereby they give to their children the whole or a part of their property;

The first question to decide in the instant appeal is whether the partition made by Sabina Almadin of her property among her nieces, the defendants and appellants herein, was valid and enforceable.

Article 1056 of the Civil Code provides:

Considering that, inasmuch as the second paragraph of article 1271 makes reference to the aforesaid article, in providing that no contracts may be entered into with respect to future inheritances except those the object of which is to make a division inter vivos of the estate in accordance with article 1056, it is evident that said difference likewise leads to the conclusion that a partition thus made should be on the basis of a testamentary or legal succession and should be made in conformity with the fundamental rules thereof and the order of the heirs entitled to the estate, because neither of the two provisions could be given a wider meaning or scope than that they simply provide for the division of the estate during the lifetime of the owner, which, otherwise, would have to be

done upon the death of the testator in order to carry into effect the partition of the estate among the persons interested.

Manresa comments on the same article as follows:

And it could not be otherwise, for without a will there can be no testator; when the law, therefore, speaks of the partition inter vivos made by a testator of his property, it necessarily refers to that property which he has devised to his heirs. A person who disposes of his property gratis inter vivos is not called a testator, but a donor. In employing the word "testator," the law evidently desired to distinguish between one who freely donates his property in life and one who disposes of it by will to take effect after his death.

A distinction must be made between the disposition of property and its division; and the provision of article 1056 authorizing the testator to dispose of his property by acts inter vivos or by last will, must be understood in accordance with this distinction. The Idea is to divide the estate among the heirs designated by the testator. This designation constitutes the disposition of the properties to take effect after his death, and said act must necessarily appear in the testament because it is the expression of the testator's last will and must be surrounded by appropriate formalities. Then comes the second part, to wit, the division in conformity with that disposition, and the testator may make this division in the same will or in another will, or by an act inter vivos. With these words, the law, in article 1056 as well as in article 1057, which we shall hereafter examine, makes allusion to the forms or manner of making the partition and not to the effects thereof, which means that, for purposes of partition the formal solemnities which must accompany every testament or last will are not necessary. Neither is it necessary to observe the special for. realities required in case of donations, because it is not a matter of disposing gratuitously of properties, but of dividing those which already have been legally disposed of.

We are not in conformity with the holding of the respondent court that the extrajudicial partition of November 25, 1949 which under the old Civil Code was expressly prohibited as against public policy had been validly ratified by the holographic will of Don Jesus executed on January 5, 1955 and his codicil of August 14, 1956. Such a holding of the appellate court that a person who executes a will is permitted to partition his properties pursuant to the provisions of Article 1056 of the old Civil Code even before executing his will as long as he mentions this fact in the will, is not warranted under the ruling of Legasto vs. Verzosa, supra and the commentary of Manresa as quoted above. We rule, therefore, that the respondent court erred in denying probate to the will of Don Jesus dated November 14, 1959; it erred in holding that Don Jesus being a party to the extrajudicial partition of 1949 was contractually bound by the provisions thereof and hence could not revoke his participation therein by the simple expedience of making a new will with contrary provisions or dispositions. It is an error because the so-called extrajudicial partition of 1949 is void and inoperative as a partition; neither is it a valid or enforceable contract because it involved future inheritance; it may only be given effect as a donation inter vivos of specific properties to the heirs made by the parents.

It is thus seen that both the Spanish Supreme Court and the learned and authoritative commentator, Manresa, are of opinion that a testator may, by an act inter vivos, partition his property, but he must first make a will with all the formalities provided for by law.

Considering that the document, the extrajudicial partition of November 25, 1949, contained specific designation of properties

allotted to each child, We rule that there was substantial compliance with the rules on donations inter vivos under the old Civil Code (Article 633). On the other hand, there could have been no valid donation to the children of the other half reserved as the free portion of Don Jesus and Do;a Tinay which, as stated in the deed, was to be divided equally among the children for the simple reason that the property or properties were not specifically described in the public instrument, an essential requirement under Article 633 which provides as follows: t.hqw

one-half of their combined properties which must be charged against their legitime and cannot anymore be revoked unless inofficious; the other half remained entirely at the free disposal of the spouses with regards to their respective shares.

Art. 633. In order that a donation or real property be valid it must be made by public instrument in which the property donated must be specifically described and in the amount of the encumbrances to be assumed by the donee expressed.

Upon the death of Do;a Tinay on October 2, 1959, her share in the free portion was distributed in accordance with her holographic will dated January 25, 1955 and her codicil dated August 14, 1956. It must be stressed here that the distribution of her properties was subject to her holographic win and codicil, independently of the holographic will and codicil of Don Jesus executed by him on the same date. This is fundamental because otherwise, to consider both wills and codicils jointly would be to circumvent the prohibition of the Civil Code on joint wills (Art. 818) and secondly because upon the death of Do;a Tinay, only her estate was being settled, and not that of Don Jesus.

The acceptance must be made in the deed of gift or in a separate public writing; but it shall produce no effect if not made during the lifetime of the donor.

If the acceptance is made by separate public instrument, authentic notice thereof shall be given the donor, and this proceeding shall be noted in both instruments.

We have carefully examined the provisions of the holographic will and codicil of Do;a Tinay and We find no indication whatsoever that Do;a Tinay expressly or impliedly instituted both the husband and her children as heirs to her free portion of her share in the conjugal assets. In her holographic will, mention of her children as heirs was made in the fourth clause but it only provided that, to wit: t. hqw

This other half, therefore, remained as the disposable free portion of the spouses which may be disposed of in such manner that either of the spouses would like in regards to his or her share in such portion, unencumbered by the provision enjoining the last surviving spouse to give equally to the children what belongs or-would pertain to him or her. The end result, therefore, is that Don Jesus and Do;a Tinay, in the Deed of 1949, made to their children valid donations of only

Cuatro. Que si yo adquieriese nuevase propiedades despues de otorgado este mi testamento seran las mismas repartados entre mi esposo o hijos arriba mencionada en el parrafo tercero su la misma proporcion o sea: la mitad (1/2) para is esposa; y la otra mitad (1/2) para mis hijos en partes iguales.

For purposes of clarity and convenience, this fourth clause provided that "Should I acquire new properties after the execution of this testament, the same shall be partitioned among my spouse and above named children or the children mentioned in above par. 3 in the same proportion, that is, one- half (1/2) to my spouse; and the other half to my children in equal parts." From the above-quoted provision, the children would only inherit together with Don Jesus whatever new properties Do;a Tinay would acquire after the execution of her will.

Again for purposes of clarity and convenience, the above portion states: t.hqw

I leave to my spouse Don Jesus Alsua as his legitime and as his inheritance the part of the free portion of my property which have not been allocated in favor of my children in the Document of Partition aforecited and that which should exceed 1/2 of the conjugal property of gains that pertains to him as above stated, including all those properties which we shall acquire after the execution of this document.

Likewise, the codicil of Do;a Tinay instituted her husband as sole heir to her share in the free portion of the conjugal assets, and We quote that part of the codicil: t.hqw

Dejo a mi esposo Jesus Alsua como su legitima y como herencia que se sacara de ni cuenta de libre disposicion todos aquellos bienes de los que no he dispuesto aun en favor de mis hijos en la escritura de reparticion precitada y que excedieran de la mitad de gananciales que le corresponds tal como arriba declare, incluyendo todos aquenos bienes que se adquiriesen por nosotros despues de otorgado por mi este testamento.

In case it should be God's will that I survive my spouse, I hereby declare that it is my will that any and all kinds of property that pertains to me or would pertain to me, which have not been disposed of pursuant to the partition, should be divided equally among my above-mentioned heirs after my death.

The children, therefore, would only receive equal shares in the remaining estate of Do;a Tinay in the event that she should be the surviving spouse. To stress the point, Do;a Tinay did not oblige her husband to give equally to the children, upon his death, all such properties she was bequeathing him.

Para el caso de que Dios dispusiera que yo sobreviviera a mi esposo declaro que es mi voluntad que todas las propiedades de todo genero que me pertenecen y me pudieran pertenecer, no dispuestas aun en la reparticion, se dividan por igual entre mis herederos mencionados despues de mi muerte.

Considering now the efficacy of Don Jesus' last will and testament executed on November 14, 1959 in view of Our holding that Do;a Tinay's wig and codicil did not stipulate that Don Jesus will bestow the properties equally to the children, it follows that all the properties of Do;a Tinay bequeathed to Don Jesus under her holographic win and codicil became part of Don Jesus' estate unburdened by any condition obligation or proviso.

Respondents insist that Don Jesus was bound by the extrajudicial partition of November 25, 1949 and had in fact conformed to said Partition by making a holographic will and codicil with exactly the same provisions as those of Do;a Tinay, which respondent court sustained. We rule, however, that Don Jesus was not forever bound thereby for his previous holographic will and codicil as such, would remain revokable at his discretion. Art. 828 of the new Civil Code is clear: "A win may be revoked by the testator at any time before his death. Any waiver or restriction of this right is void." There can be no restriction that may be made on his absolute freedom to revoke his holographic will and codicil previously made. This would still hold true even if such previous will had as in the case at bar already been probated (Palacios v. Palacios, 106 Phil. 739). For in the first place, probate only authenticates the will and does not pass upon the efficacy of the dispositions therein. And secondly, the rights to the succession are transmitted only from the moment of the death of the decedent (Article 777, New Civil Code). In fine, Don Jesus retained the liberty of disposing of his property before his death to whomsoever he chose, provided the legitime of the forced heirs are not prejudiced, which is not herein claimed for it is undisputed that only the free portion of the whole Alsua estate is being contested.

Court had, on more than one occasion, passed upon the intrinsic validity of a will even before it had been authenticated. Thus We declared in Nuguid v. Nuguid, 17 SCRA 499: t.hqw

The parties shunted aside the question of whether or not the will should be allowed to probate. For them, the meat of the case is the intrinsic validity of the wilt Normally this comes only after the court has declared that the will has been duly authenticated. ...

... If the case were to be remanded for probate of the wilt nothing will be gained. On the contrary, this litigation win be protracted and for ought that appears in the record, in the event of probate or if the court rejects the will probability exists that the case win come up once again before us on the issue of the intrinsic validity or nullity of the wilt Result: waste of time, effort, expense, plus added anxiety. These are the practical considerations that induce us to a behalf that we might as well meet head-on the time of the validity of the provisions of the will in question. ...

After clearly establishing that only Don Jesus was named as sole heir instituted to the remaining estate of Do;a Tinay in her holographic will and codicil resulting in all such properties becoming the properties of Don Jesus alone, and after clearly pointing out that Don Jesus can, in law, revoke his previous holographic will and codicil, by making another win expressly cancelling and revoking the former, the next issue for the Court's resolution is the validity of the provisions of the contested will. Though the law and jurisprudence are clear that only questions about the extrinsic validity of the will may be entertained by the probate court, the

The last Will and Testament of Don Jesus executed on November 14, 1959 contained an express revocation of his holographic wig of January 5, 1955 and the codicil of August 14, 1956; a statement requiring that all of his properties donated to his children in the Deed of 1949 be collated and taken into account in the partition of his estate; the institution of all his children as devisees and legatees to certain specific properties; a statement bequeathing the rest of his properties and all that may be acquired in the future, before his death, to Pablo and Francesca; and a statement naming Francesca as executrix without bond.

Considering these testamentary provisions, a close scrutiny of the properties distributed to the children under the Deed of 1949 and those distributed under the contested will of Don Jesus does not show that the former had in fact been included in the latter. This being so, it must be presumed that the intention of Don Jesus in his last win was not to revoke the donations already made in the Deed of 1949 but only to redistribute his remaining estate, or that portion of the conjugal assets totally left to his free disposal and that which he received as his inheritance from Do;a Tinay. The legitimes of the forced heirs were left unimpaired, as in fact, not one of said forced heirs claimed or intimated otherwise. The properties that were disposed of in the contested will belonged wholly to Don Jesus Alsua's free portion and may be diamond of by him to whomsoever he may choose.

determined through a careful reading of the will or wills, and provided the law on legitimes has not been violated, it is beyond the place of judicial cognizance to inquire into the fairness or unfairness of any devise or bequeast. The court should not sit in judgment upon the motives and sentiments of the testatrix, first, because as already stated, nothing in the law restrained her from disposing of her property in any manner she desired, and secondly, because there are no adequate means of ascertaining the inward process of her conscience. She was the sole judge of her own attitude toward those who expected her bounty. ...

If he now favored Francesca more, as claimed by private respondents, or Pablo as in fact he was, We cannot and may not sit in judgment upon the motives and sentiments of Don Jesus in doing so. We have clearly laid down this rule in Bustamante v. Arevalo, 73 Phil. 635, to wit: t.hqw

... nevertheless it would be venturesome for the court to advance its own Idea of a just distribution of the property in the face of a different mode of disposition so clearly expressed by the testatrix in the latter will. ...

Respondent court, in trying to rationalize the will of Don Jesus which allegedly benefited and favored the petitioner to the prejudice of the other heirs who would have been entitled to an equal share under the extrajudicial partition of 1949, faced two alternatives-one, to consider Don Jesus as a man of culture and honor and would not snow himself to violate the previous agreement, and the other as one whose mental faculties or his possession of the same had been diminished considering that when the will was executed, he was already 84 years of age and in view of his weakness and advanced age, the actual administration of his properties had been left to his assistant Madarieta who, for his part received instructions from Francisco and her husband, Joseph Betts. According to the court, the better explanation is the latter, which is not legally tenable. Under Article 799 of the New Civil Code which provides as follows: t. hqw

It would be a dangerous precedent to strain the interpretation of a will in order to effect what the court believes to be an equitable division of the estate of a deceased person. The only functions of the courts in these cases is to carry out the intention of the deceased as manifested in the wig. Once that intention has been

Art. 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause.

It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act,

The test of testamentary capacity is at the time of the making of the win. Mere weakness of mind or partial imbecility from disease of body or from age-does not render a person incapable of making a will. t.hqw

Between the highest degree of soundness of mind and memory which unquestionably carries with it full testamentary capacity, and that degrees of mental aberration generally known as insanity or Idiocy, there are numberless degrees of mental capacity or incapacity and while on one hand it has been held that mere weakness of mind, or partial imbecility from disease of body, or from age, will not render a person incapable of making a will; a weak or feebleminded person may make a valid will, provided he has understanding and memory sufficient to enable him to know what he is about to do and how or to whom he is disposing of his property. To constitute a sound and disposing mind, it is not necessary that the mind be unbroken or unimpaired or unshattered by disease or otherwise. It has been held that testamentary incapacity does not necessarily require that a person shall actually be insane or of unsound mind. (Bugnao vs. Ubag, 14 Phil. 163).

findings of fact of the trial court on the due execution of the last win and testament of Don Jesus has foreclosed any and all claim to the contrary that the will was not executed in accordance with the requirements of the law. But more than that, gleaned from the quoted portions of the appealed decision, the described behavior of Don Jesus is not that of a mentally incapacitated person nor one suffering from "senile dementia" as claimed by private respondents. From these accepted facts, We find that: (a) it was Don Jesus himself who gave detailed instructions to his lawyer as to how he wanted to divide his properties among his children by means of a list of his properties should pertain; (b) the semi-final draft of the contested will prepared by his lawyer w-as even corrected by Don Jesus; (c) on the day of the signing of the will at his house in Ligao, "Don Jesus was in bright and lively spirits ..., leading in the conversation which ran from problems of farming and the merits of French-made wines"; (d) the signing of the will by Don Jesus and his attesting witnesses was made after a statement from Don Jesus of the purpose of their meeting or gathering, to wit: t.hqw

Precisamente es por lo que he Ilamado a ustedes que eaten presentes para ser testigos de mi ultima voluntad y testamento que ha sido preparado por el abogado Sr. Gregorio Imperial segun mis instrucciones cuyo documents tengo aqui con migo y encuentro que, despues de lo he leido, esta satisfactoriamente hecho segun mis ingtrucciones, Como saben ustedes tengo cuatro (4) hijos todos ellos.

The Civil Code itself provides under Article 798 that in order to make a will, it is essential that the testator be of sound mind at the time of its execution, and under Article 800, the law presumes that every person is of sound mind in the absence of proof to the contrary. In the case at bar, the acceptance by the respondent court of the

Clearly then, Don Jesus knew exactly what his actions were and the fun implications thereof.

In rejecting probate of the wilt respondent court further pointed out

other details which, in the words of the decision "are a little bit difficult to reconcile with the ordinary course of things and of fife" such as the fact that Don Jesus had sought the probate of his will of January 5, 1955 and his codicil of August 14, 1956 during his lifetime but insofar as the will of November 14, 1959 is concerned, he had no intention of seeking the probate thereof during his lifetime, the alleged redundant and unnecessary proceedings undertaken by Don Jesus in the properties under question to petitioner Franciso Alsua-Betts when the same properties had already been bequeathed to her in the will of November 14, 1959 and that "nothing, absolutely nothing, could be made the basis for finding that Don Jesus Alsua had regarded his other children with less favor, and that he was more sympathetic to Francisca so as to or forget the former depriving them of benefits already given to them and rewarding the latter with disproportionate advantages or benefits, to such an extreme as to violate his previous disposition consecrated in the previous extrajudicial partition, Exh. 8."

already assigned the same properties to her in his will. While We can speculate that Don Jesus desired to have possession of the properties transferred to Francisca after the sale instead of waiting for his death may be a reasonable explanation or speculation for the act of the testator and yet there is no certainty that such was actually the reason. This is as good a conjecture as the respondents may offer or as difficult to accept which respondent court believes. A conjecture is always a conjecture; it can never be admitted as evidence.

We agree with the petitioner that these details which respondent court found difficult to reconcile with the ordinary course of things and of life are mere conjectures, surmises or speculations which, however, do not warrant or justify disallowance of the probate of the win of Don Jesus. The fact that Don Jesus did not cause his will to be probated during his lifetime while his previous holographic win and codicil were duly probated when he was still alive is a mere speculation which depends entirely on the discretion of Don Jesus as the testator. The law does not require that a will be probated during the lifetime of the testator and for not doing so there cannot arise any favorable or unfavorable consequence therefrom. The parties cannot correctly guess or surmise the motives of the testator and neither can the courts. Such surmise, speculation or conjecture is no valid and legal ground to reject allowance or disallowance of the wig. The same thing can be said as to whatever reason Don Jesus had for selling the properties to his daughter Francisca when he had

Now, the annulment case. The only issue raised anent the civil case for annulment of the two Deeds of Sale executed by and between Don Jesus and petitioner Francisco is their validity or nullity. Private respondents mainly contend that the sales were fictitious or simulated, there having been no actual consideration paid. They further insist that the issue raised is a question of fact and, therefore, not reviewable in a certiorari proceeding before the Supreme Court. On the other hand, petitioners herein maintain that it was error for the respondent court to set aside on appeal the factual findings of the trial court that the two sales were valid.

It is true that the jurisprudence of this Court in cases brought to Us from the Court of Appeals is limited to reviewing and revising the errors of law imputed to it, its findings of fact being conclusive; and this same principle applies even if the Court of Appeals was in disagreement with the lower court as to the weight of evidence with a consequent reversal of its findings of fact. But what should not be ignored by lawyers and litigants alike is the more basic principle that the "findings of fact" described as "final" or "conclusive" are those borne out by the record or those which are based upon substantial evidence. The general rule laid down by the Supreme Court does not declare the absolute correctness of all the findings of fact made by the Court of Appeals. These are exceptions to the

general rule, where We have reviewed and revised the findings of fact of the Court of Appeals. Among the exceptions to the rule that findings of fact by the Court of Appeals cannot be reviewed on appeals by certiorari are:

In the case at bar, We find and so declare that the respondent court's conclusion as to the nullity of the contested sales was not supported by the evidence on record and adduced during the trial.

1. When the conclusion is a finding grounded entirely on speculation, surmises or conjectures (Joaquin vs. Navarro, 93 Phil. 257);

2. When the inference made is manifestly mistaken, absurd or impossible (Luna vs. Linatok, 74 Phil. 15);

3. Where there is a grave abuse of discretion (Buyco vs. People, 51 O.G. 2927);

4. When the judgment is based on a misapprehension of facts (Cruz vs. Sosing, L-4875, Nov. 27, 1953);

5. When the findings of fact are conflicting (Casica vs. Villaseca, L9590, April 30, 1957); and

6. When the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee (Evangelists vs. Alto Surety & Ins. Co., L-11139, April 23, 1958; Ramos vs. Pepsi Cola, L-22533, Feb. 9, 1967, 19 SCRA 289).

Evident from the records are the following documentary evidence: (1) Exhibit U, a deed of sale over agricultural lands executed on August 26, 1961 by Don Jesus in favor of Francisca for the consideration of Seventy Thousand Pesos (P70,000.00), which document bears the signature of Don Jesus, not assailed as a forgery, and the signature of Pablo Alsua as an instrumental witness, again not assailed as a forgery nor alleged as done thru fraud, force or threat. (2) Exhibit "W", a deed of sale over urban lots executed on November 16, 1962 for the consideration of Eighty Thousand Pesos (P80,000.00), which document also bears the signature of Don Jesus, also admittedly not a forgery. (3) Exhibit "F", a document dated August 26, 1961 and signed by Don Jesus and Pablo Alsua as witness, acknowledging receipt of a Bank of Philippine Island Check No. 0252 in the amount of Seventy Thousand Pesos (P70,000.00) for the sale of 33 parcels of agricultural land to Francisco under the same date; again, Pablo did not deny the genuineness of his signature. (4) Exhibit "X", a Bank of the Philippine Islands Check No. D-6979 dated November 26, 1962, in the amount of P32,644.71, drawn and signed by Francesca, payable to Don Jesus. (5) Exhibit "X-1", a second Bank of Philippine Islands Check (No. D-6980) also dated November 26, 1962 in the amount of ?47,355.29, drawn by Francisco and payable to Don Jesus. (6) Exhibit "X-3 " and "X-5 ", endorsements on the back of the last two checks by Don Jesus, again, his signatures thereon were not assailed. (7) Exhibit "A" (in the annulment case), a Bureau of Internal Revenue Receipt (No. 2347260) dated November 29, 1962 with a notation acknowledging the receipt of BPI Check No. D-6980 in the amount of P47,355.29 from Don Jesus Alsua in payment of

Balance of Transfer of Tax Ass. No. EA-35415-19 plus interest. We are convinced and satisfied from this array of documentary evidence that in fact, Don Jesus sold the subject properties to his daughter, Francisca for the total consideration of P150,000.00.

influence. (Article 1355, New Civil Code). We do not find the stipulated price as so inadequate to shock the court's conscience, considering that the price paid was much higher than the assessed value of the subject properties and considering that the sales were effected by a father to her daughter in which case filial love must be taken into account.

The claim of the private respondents that the sales were fictitious and void for being without cause or consideration is as weak and flimsy as the ground upon which the respondent court upheld said claim on the basis that there was no need for funds in Don Jesus' old age aside from the speculation that there was nothing in the evidence that showed what motivated Don Jesus to change his mind as to favor Francesca and discriminate against the other children. The two contracts of same executed by Don Jesus in favor of Francesca are evidenced by Exhibits "U" and "W", the genuineness of which were not at all assailed at any time during this long drawnout litigation of 15 years standing. That the consideration stated in the contracts were paid is also sufficiently proved as the receipts thereof by Don Jesus were even signed by one of the private respondents, Pablo Alsua, as a witness. The latter cannot now deny the payment of the consideration And even of he now allege that in fact no transfer of money was involved, We find his allegation belied by Exhibits "X-3 " and "X-5 ", which show that the checks of Francisco made payable to Don Jesus. were in fact given to Don Jesus as he endorsed them on the back thereof, and most specifically Exhibit "A" in the annulment case, which proved that Don Jesus actually used Exhibit "XI " to complete payment on the estate and inheritance tax on the estate of his wife to the Bureau of Internal Revenue.

WHEREFORE, IN VIEW OF THE FOREGOING, the decision appealed from is hereby set aside. The decision of the Court of First Instance Of Albay in Special Proceedings No. 699 and Civil Case No. 3068 is hereby reinstated, with costs against respondents.

SO ORDERED.

Teehankee (Chairman), concur.1wph1.t

Makasiar

and

Fernandez,

JJ.,

De Castro, J., took no part.

Melencio Herrera, J., concur in the result.

Private respondents further insist that the sales were fraudulent because of the inadequacy of the given price. Inadequacy of consideration does not vitiate a contract unless it is proven which in the case at bar was not, that there was fraud, mistake or undue

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